text:
    Pennell v. State.
    Opinion delivered April 26, 1926.
    1. Indictment and information—alternative or conjunctive allegations.—-Where an offense may have been committed in different modes and by different means, the indictment may allege such modes and means either alternatively or conjunctively.
    2. Forgery—instruction.—Where the State’s, evidence in a forgery case tended to prove that there was a conspiracy between defendant and another whereby each of them actively participated in the commission of the crime, an instruction asked by defendant that he could not he convicted unless he either committed the forgery himself or was present encouraging and abetting the forgery by the other was properly refused.
    3. Forgery—person defrauded.—Where defendant was charged with forgery of a check signed by E. P. with intent to defraud the said E. P., proof that E. P. had previously overdrawn his account at the bank did not establish that the bank and not E. P. was the person intended to be defrauded.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.

      John Mayes and W. N. Ivie, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Smith, J.

Appellant and Mrs. J. B. Buckhorn were jointly indicted for forgery. Appellant alone was placed on trial, and was convicted, and has appealed. The first assignment of error for the reversal of the judgment is that the court erred in overruling a demurrer to the indictment. The indictment charged that “the said Clyde Pennell and Mrs. J. B. Buckhorn, in the said county of Washington and in the State of .Arkansas, on or about the 7th day of November, 1925, did falsely and feloniously raise, alter, forge and counterfeit a certain paper writing, purporting to be a check, which said check is in words and figures as follows: ‘Bank of Lincoln, Lincoln, Arkansas. Pay to the order of Mrs. J. B. Buckhorn $85.00. Eighty-five Dollars. Earl Pyeatte’, with the fraudulent intent feloniously to obtain the possession of the money and property of Earle Pyeatte, against the peace and dignity of the State of Arkansas. ’ ’

The statute under which the indictment was drawn reads as follows: “If any person shall forge or counterfeit a bank bill ór note, or check or draft upon a bank, or the certificate of deposit of money therein of any bank or company incorporated by law in any part of the United States, or any indorsement thereon, or shall erase or alter the same, or any indorsement thereon, or shall tender in payment, utter, vend, exchange, barter or demand to have exchanged for money any such forged, erased, altered or counterfeited bill, note, draft, check, or certificate of deposit, or the indorsement thereon, knowing the same to be forged, counterfeited, erased or altered, he shall, on conviction, be confined in the penitentiary not less than two nor more than ten years.” Section 2463, C. & M. Digest.

The indictment charges an offense under this statute. It is true the indictment charges that appellant “did falsely and feloniously raise, alter, forge and counterfeit a certain paper writing, purporting to be a check,” but these acts are charged conjunctively, that is, that appellant did raise the check, did alter it, did forge it, and did counterfeit it, and under the statute quoted the offense could have been- committed by altering the check, by forging it, or by counterfeiting it, and by § 3015, C. & M. Digest, it is provided that “an indictment, except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alternative, ” and this may be properly done by alleging the commission of the crime in different modes and by different means, conjunctively. Gramlich v. State, 135 Ark. 243; Cox v. State, 149 Ark. 387.

The indictment also appears to be direct and certain as regards, (1), the party charged; (2), the offense charged; (3), the county in which the offense was committed; and (4), the particular circumstances of the offense charged; and as these are the requisites required by § 3012, C. & M. Digest, to make a valid indictment, we hold this indictment good. Huff v. State, 164 Ark. 211.

The court gave, over appellant’s objection, an instruction numbered 4, which reads as follows: “If you find from the evidence beyond a reasonable doubt that in Washington County, Arkansas, and at some time within three years before the indictment was returned into this court, Clyde Pennell falsely and feloniously raised, altered, forged and counterfeited a certain check as set out and described in the indictment, with the felonious and fraudulent intent to obtain the possession of the money or property of Earl Pyeatte, or if you find that Mrs. J. B. Buckhorn falsely and feloniously raised, altered, forged or counterfeited the check set out and described in the indictment, with the felonious intent to obtain the personal property and money of Earl Pyeatte, and that the defendant was then and there present aiding, abetting and assisting her so to do (or if you find that Clyde Pennell and Mrs. J. B. Buckhorn were acting’ and conspiring together in the alleged altering, forging and raising of said check for the purposes aforesaid, and each participated in some part thereof for a common purpose), and with the felonious intent to obtain possession of the money or property of Earl Pyeatte, then you should find the defendant guilty as charged in the indictment, and assess his punishment at imprisonment in the penitentiary for not less than two nor more than ten years. If you fail to so find, you should acquit.”

This instruction was objected to upon the ground that, although appellant was indicted as a principal, the instruction authorized his conviction, although he was absent, if he had conspired with Mrs. Buckhorn to commit the crime.

We think the instruction is not open to this objection. The testimony on the part of the <State was to the effect that Mr. Pyeatte had loaned appellant $5, the loan being made by drawing a check to appellant’s order for $5. Mrs. Buckhorn testified that appellant erased the name of the payee and of the amount of the check, and that, after this was done, she filled in her own name as payee and wrote $85 in words and figures into the face of the check as the sum for which it was payable, and that she did this after discussing with appellant the amount, for which the check should be drawn, and that she gave appellant a part of the money.

Appellant testified that Pyeatte told him he wanted to give Mrs. Buckhorn $5, but did not want to make the check payable to her order, and, to avoid doing this, the check was made payable to appellant’s order, and was for $5, and that he delivered the check to Mrs. Buckhorn in the condition in which it was written and signed by Pyeatte. Appellant did not testify that he indorsed the check, and there is no explanation on his part as to how he expected Mrs. Buckhorn to get the money on an unindorsed check payable to his order. According to appellant’s testimony, he had no guilty connection with the crime, but Mrs. Buckhorn testified that it was appellant who erased the name of the payee and the amount of the check. If he did this with the intent to defraud Pyeatte, he was guilty as charged, and it would be immaterial whether he was present when Mrs. Buckhorn filled in the erasures or not. If, as a result of a conspiracy to defraud Pjyeatte, appellant had made certain erasures, thereby altering the check, and Mrs. Buckhorn thereafter filled in the items erased, each was guilty of forgery, and both were properly charged as principals, although Mrs. Buckhorn may not have been present when appellant made the erasures, and appellant may have been absent when Mrs. Buckhorn wrote into the check a different payee and a larger sum of money.

The instruction submits the two theories of the case —that presented by the testimony of Mrs. Buckhorn and that presented by the testimony of appellant. According to appellant’s testimony, he had nothing to do with the transaction, and was not present when it was done, and that Mrs. Buckhorn made the erasures and then filled out the check. The first part of the instruction submits this issue, and tells the jury that, if Mrs. Buckhorn raised, altered, forged or counterfeited the check (that is, if she did it all by herself), with the felonious intent to obtain the personal property and money of Earl Pyeatte, “and that the defendant was then and there present aiding, abetting and assisting her so to do ” then he was guilty as charged, although he did not 'touch the check while the altering, etc., was being done. The instruction then deals with the theory that Mrs. Buckhorn had not made the erasures, and, upon this theory, tells the jury that “if you find that Clyde Pennell (appellant) and Mrs. J. B. Buckhorn were acting and conspiring together in the alleged altering, forging and raising of said check for the purposes aforesaid, and each participated in some part thereof for a common purpose,” and with the felonious intent to obtain possession of the money or property of Bari Pyeatte, the defendant was guilty as charged.

The instruction does not authorize the jury to convict the appellant (as he insists it does) upon the mere finding that he had conspired with Mrs. Buckhorn to defraud Pyeatte, although he had no part in the actual commission of the crime and was not present when it was done. But the instruction authorizes a conviction if there was a conspiracy, and, in pursuit of the common unlawful purpose, each participated in some part of the altering, forging, raising, or counterfeiting, whether the other was present or not when that participation occurred.

The court refused to give an instruction numbered 2, requested by appellant, reading as follows: “You are instructed that, before you would be authorized to convict the defendant in this case, you must find from the evidence, beyond a reasonable doubt, that the defendant. Clyde Pennell either actually forged, altered, or raised the check in question, or was actually present aiding,, encouraging and abetting the forging, raising or altering* of said check at the tinle same was raised, altered or forged, if you find same was forged, raised or altered, and, unless you so find, your verdict should be for defendant.”

This instruction would he appropriate in an ordinary case, but is not applicable to the facts of this case. It would have required the jury to find, before convicting appellant, that he either forg’ed the check himself, or that Mrs. Buckhorn had done so, and that he was present, aiding, encouraging and abetting her while she did so, and takes no account of the theory of -the prosecution that both Mrs. Buckhorn and appellant participated in the crime, each performing* a separate part of it.

The instruction given by the court more correctly and accurately declared the law, and there was therefore no error in giving instruction numbered 4 and in refusing to give instruction numbered 2.

The cashier of the bank on which the check was drawn and who paid it upon presentation testified that Pyeatte’s account at the bank was overdrawn $8.25 when the check was presented and cashed, and upon this testimony an instruction was asked which would, in effect, have directed a verdict in appellant’s favor, upon the theory that, as Pyeatte had no money in the bank with which the check could be and was cashed, it was the bank, and not Pyeatte, who was defrauded. This instruction was properly refused. The bank, of course, charged the check to Pyeatte’s account, and he became liable therefor to the bank, although the payment of the check increased the amount of Pyeatte’s overdraft.

There is no question about the altering- and raising of the check, and the real question is whether appellant was concerned in these acts. He testified that he had nothing to do with the transaction except to deliver the check, unchanged in any respect, to Mrs. Buckhorn. She testified that appellant made the erasures, and, if he did this with the intent to defraud Pyeatte, he is guilty as charged, although Mrs. Buckhorn’s part was performed in appellant’s absence, a fact which she denied, her testimony on this point being that she and appellant discussed the amount for which the check should be made payable, and appellant suggested that it be made for enough, and that, pursuant to this suggestion, she made it for $85, and that this was done in appellant’s presence, and that they later divided the money thus obtained.

We find no prejudicial error, so the judgment is affirmed.

Hart, J., dissents.


source: Caselaw Access Project

author: McCulloch, C. J. Smith, J.,

license: Public Domain

text:
    Airheart v. Winfree.
    Opinion delivered May 3, 1926.
    Counties—bond issue—application op proceeds.—Under Amendment No. 11, authorizing counties to issue bonds “to pay indebtedness outstanding at the time of the adoption of this amendment,” and making it a felony for any officer to use any part of the proceeds of said bonds for any other purpose than the payment of such indebtedness, held that it would be unlawful for the county court to use any part of the proceeds of a bond issue to pay off indebtedness incurred by a county after December 7, 1924, the date of adoption of the amendment, though a portion of the prior indebtedness of the county had been discharged out of the general revenue fund of the county instead of out of'the proceeds of the bond issue.
    Appeal from Woodruff Circuit Court, Northern District; E. D. Robertson, Judge;
    affirmed.

      J. F. Summers, for appellant.

      W. J. Dungan, for appellee.
   McCulloch, C. J.

This is an action instituted by appellant in the circuit court oif Woodruff County to compel the treasurer of the county, by mandamus, to pay a warrant held by appellant out of funds in the treasury arising from the sale of bonds pursuant to Amendment No. 11 of the Constitution—the amendment authorizing counties and municipalities to issue bonds to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment. A demurrer was sustained to the complaint, from which complaint the facts appear as follows:

After the amendment was declared, in Rrickhouse v. Hill, 167 Ark. 513, to have been legally adopted as a part of the Constitution, the county court of Woodruff County issued and sold bonds in the aggregate sum of $38,337.48 to pay the outstanding indebtedness of the county, and that sum was paid into the treasury. On December 7, 1924, the date on which the amendment became effective, there were outstanding warrants of Woodruff County in the aggregate sum of $38,337,48, the amount of the bond issue, but the bonds were not issued until long after that time—the precise date not being stated in the pleadings. Between December 7, 1924, and the date the funds were secured from the sale of the bonds and paid into the treasury, warrants issued prior to December 7, 1924, in the aggregate sum of $26,479.49, were paid out of the general revenues of the county, leaving unpaid only the aggregate sum of $10,857.49 of the old indebtedness. Appellant is the holder of a warrant issued by the county court of Woodruff County on November 5, 1925, and he presented this warrant for payment, and, upon refusal by the treasurer to pay the warrant out of the funds arising from the sale of the bonds, he instituted this action to compel the treasurer to do so.

We decided in Cumnock v. Little Rock, 168 Ark. 777, that Amendment No. 11 is self-executing, and in Matheny v. Independence County, 169 Ark. 925, we held that the amendment became effective on December 7,1924, so that the power to issue bonds applied only to indebtedness existing on that date. This disposes of appellant’s contention that the funds arising from the sale of bonds should include indebtedness incurred up to the date of the approval of the enabling act, March 23, 1925. Acts 1925, p. 612.

The principal argument of counsel for appellant is that, since the declared purpose of Amendment No. 11, as construed in Kirk v. High, 169 Ark. 152, w;as to enable the counties of the State to “get out of debt,” as long as the county continues to be in debt after the adoption of the amendment the authority to issue bonds continues, and that it extends to the maximum amount of the outstanding indebtedness at the time of the adoption of the amendment and includes warrants issued subsequent thereto, even though the amount of the old indebtedness has been reduced by payments out of the general revenue funds of the county. In other words, it is contended that, since the amount of the old indebtedness was borrowed and the old indebtedness has been reduced since the adoption of the amendment from an aggregate of $38,337.48 down to $20,857.49, the remainder of the funds should be used in retiring warrants issued subsequent to the adoption of the amendment. We cannot agree with counsel in this argument, for we think it disregards the plain language of the Constitution, as amended, which limits the issuance of bonds to the procurement of funds “to pay indebtedness outstanding at the time of the adoption of this amendment,” and declares that it shall be a felony for any officer to “use any part of the proceeds of said bonds for any other purpose” than the payment of such indebtedness. It is not the amount of the indebtedness at the time of the adoption of the amendment which necessarily determines the amount of the bond issue, for that is determined solely by the amount of the old indebtedness in existence at the time the money is borrowed and the bonds are issued. As long as the old indebtedness exists, the Constitution authorizes the borrowing of money to pay off that indebtedness or so much of it as is in existence at the time the bonds are issued. If the old indebtedness has been reduced by payments out of funds of the county, then the authority to issue bonds is limited to the amount of the old indebtedness which remains unpaid. Counsel seek in the argument to treat the warrants subsequently issued as in the nature of a renewal of the old indebtedness, for the reason that the latter has been reduced by the payment of funds out of the general revenues, but we are of the opinion that warrants subsequently issued are in no sense a renewal of the old indebtedness. ’The payment operated as a complete retirement of the old indebtedness to that extent, even though paid out of the general revenues of the county. It must be conceded that the county court had,, the authority at the time of the issuance of the bonds to determine the amount of the old indebtedness, and if, in the meantime, there had been a reissue of warrants, which evidenced the old indebtedness, it was within the province of the county court to include the reissued warrants as a part of the old indebtedness. In other words, the county .court has authority to look to the form to ascertain the substance in regard to the amount of the old indebtedness. But it is not shown that the indebtedness represented by appellant’s warrant was a part of the indebtedness of the county at the time of the adoption of the amendment, therefore it is not, either in form or substance, such a claim against the county as can be paid out of funds arising from the 'sale of bonds.

Counsel for appellant suggest in the argument that perplexities may arise with regard to the disposition of the surplus fund borrowed by the county if we hold that it cannot be used in the payment of warrants subsequently issued, but that question is not presented in the present case. The holders of the; bonds are not parties to the suit, and we are not called on to determine whether or not they can be required to accept a refund of the unexpended balance in the treasury in payment of the bonds prior to maturity. All that we can decide now is that, under the plain language of the Constitution, the funds cannot be used for any purpose other than the discharge of indebtedness outstanding, at the time of the adoption of the amendment.

The judgment of the circuit court is therefore affirmed.

Smith, J.,

(dissenting). With due deference to the majority, they have, in my opinion, given to Amendment No. 11 a construction unnecessarily and unfortunately narrow. The facts alleged in the petition for mandamus are that on December 7, 1924, Woodruff County had an outstanding unpaid indebtedness of $38,331.18, and the total of this indebtedness has not been reduced, and remained at that amount at the time of the institution of this proceeding. The county has received revenues, but it has also had expenses, and the expenses have equaled the revenues, so that, when the proceeds of the sale of the bonds were paid into the county treasury, the county had outstanding the same amount of indebtedness it had when Amendment No. 11 became effective. It is true that between December 7,1924, the date of the adoption of the amendment, and the date of the sale of the bonds, county warrants which were outstanding on December 7, 1924, had been taken np or redeemed by being used in the payment of taxes and for other purposes for which they were receivable, but, while the old warrants were being* thus used, new ones had been issued, so that the county’s indebtedness continued to be what it had been before.

The word “indebtedness” is defined in Webster’s New International Dictionary as follows: “State of being indebted; the sum owed; debts collectively.”

The amendment does not limit the right to pay only the warrants outstanding at the time the amendment was adopted, but provides that the proceeds of the sale of the bonds may be used in the payment of the indebtedness existing at the time of the adoption of the amendment, and may be used for this purpose only. But the word “indebtedness” rnfeans the sum due and owing by the county and payable out of the county funds, and the meaning of the word “indebtedness” should not be confined and' restricted to the particular warrants outstanding which merely evidenced the indebtedness.

There is nothing about ■ the amendment which changes the dictionary meaning or the meaning one would ordinarily give the word “indebtedness,” and the amendment confers authority to pay' the indebtedness or the amount owing by a county at the time of the adoption of the amendment.

Suppose a county owed on December 7, 1924,' $38,337.48, evidenced by many county warrants, and some of these warrants were received for the various county purposes for which they are receivable, and were canceled, but, while this was being done, the expenses of county government were being paid by the issuance of other warrants, so that, while $26,479.44 of warrants were being retired, that amount of new warrants had been issued, what would the county’s indebtedness then be? Would it not be what it had been? If revenues and, expenses are equal, would the indebtedness be changed?

The majority have given the amendment a construction so narrow that it is interpreted as if the amendment had read that with the proceeds of the bond sale the county may pay and take up any warrants outstanding at the time the amendment was adopted. In my opinion, the amendment should not be circumscribed to apply only to the evidences of the debt, because the thing which may be paid is not the particular warrants outstanding when the amendment was adopted and evidencing in part the county’s indebtedness, but the indebtedness itself may be paid out of the proceeds of the bond sale. And if the county’s indebtedness was the same on the date the bonds were sold as it was on the date the amendment was adopted (and the petition for mandamus so alleges), I perceive no reason why that indebtedness may not be paid with the proceeds of the bond sale, although many changes have been made in the evidences of this indebted ness, as-by canceling old and issuing new warrants.

I therefore respectfully disseht.


text:
    Westbrook v. Mente & Company.
    Opinion delivered May 3, 1926.
    Sales—delivery in installments—breach.—In a contract for the sale of articles to be delivered in installments, the purchaser cannot accept a delivery which does not conform to the contract, and«c.' thereafter refuse on that account to accept other deliveries which do conform to the contract; but the fact that the purchaser has accepted an installment falling short of the requirements of the contract does not require him to accept other installments which do not meet the requirements of the contract.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      Harry T. Wooldridge, for appellant.

      Milling, Godchaux, Saal £ Milling and Cohn, Clayton £ Cohn, for appellee.
   McCulloch, C. J.

Appellee is engaged in tbe business, at New Orleans, of manufacturing, among other things, bags made out of burlap. Appellant is engaged in the mercantile business at the city of Pine Bluff, and on August 23, 1920, appellant and appellee entered into a written contract for the purchase by the former from the latter of 75,000 yards of burlap made into bags, to be delivered in monthly installments during the months of September, 1920, to March, 1921, inclusive. Appellant was to give shipping directions from time to time for the installments, specifying the sizes of the bags to be shipped, and they were to be manufactured in accordance with those directions, and the bags were to have certain matter printed thereon in ink, as specified by appellant. Shipping orders were given by appellant from time to time during the months of September, October, November, December and January, but, up to the last date for shipment under the contract, March 31, 1921, only a small proportion of the quantity covered by the contract had been ordered and shipped out. However, further orders were given under the contract later, and the last shipment ordered and made was one for 5,000 bags in November, 1921. This last shipment did not fulfill the whole contract, and left 45,000 yards unshipped. -Appellant gave no further orders thereafter, and this action was instituted by appellee against appellant to recover damages on the ground that appellant had broken the contract by refusing to order and accept any more of the ■*»»bags specified in the contract. Appellant defended on the ground that the contract was broken on the part of appellee by failure and refusal to furnish bags of the kind and quality specified in the contract. There was a trial of the issues before a jury, bpt the court gave a peremptory instruction in favor of the appellee.

Error of the court is assigned in excluding testimony offered by appellant and also in giving the peremptory instruction in favor of appellee.

Appellee introduced as a witness Howell Danziger, the assistant manager of the business, who identified the contract between the parties and testified as to the quantity of deliveries made by appellee to appellant under the contract and the course of dealing between the parties up to the time of the alleged breach by the refusal of appellant to order or take any more of the bags. The contract shows that there was an average quota of 9,643 yards to be delivered during each month, and witness Danziger testified as to the amount of each delivery and the dates thereof. It appears from his testimony that there was a shortage of orders during each of the months, and that on March 31, 1921, the last day for deliveries, only a very small percentage of the quantity of bags specified in the contract had been ordered to be shipped. He testified that, after the last shipment of 5,000 bags in November, 1921, appellant, after repeated demands, failed to order out any more bags. He testified to repeated demands by letters and telegrams, to which appellant made no response. The testimony of this witness was also to the effect that appellant had never made any objections to the quality of the bags, except that in a letter ordering out a shipment of 5,000 bags in May, 1921, he asked for bags that were well sewed, and stated that he had had some trouble with bags pulling out at the seams, and also stated in the letter that he was not particular about the printing, as they were needing plain bags. The witness testified that this was the only complaint that was ever made to him.

It is undisputed that all of the shipments of bags were accepted by appellant and paid for, and that appellant made no complaint after the acceptance of the last shipment of 5,000 bags in November, 1921. But appellant offered testimony to the effect that he had made repeated complaints to three different salesmen representing appellee on their respective visits to appellant’s place of business in Pine Bluff. The offered testimony was to the effect that the attention of these traveling salesmen was repeatedly called to defects in the bags received with respect to the sewing and also imperfect printing. The testimony offered by appellant was to the effect that the printing was imperfect, that the cut of the bag was unsatisfactory and that the sewing was poor. The testimony was to the effect that a large percentage of the bags were defective in those respects, and that complaint was made to appellee’s salesmen.

The correct rule of law has been recognized by this court to be that, in a contract for the sale of articles to be delivered in installments, the purchaser cannot accept a delivery, even though it does not conform to the contract, and thereafter refuse on that account to accept other deliveries which do conform to the contract, but that the fact that the purchaser has accepted an installment falling short of the requirements of the contract does not require him to accept other installments which do not meet the requirements of the contract. Wooten & Co. v. Bain-Adams Co., 146 Ark. 462. This being the law applicable to the case, the court did not err in excluding the testimony offered by the appellant concerning the defects in the bags which were accepted and paid for. If appellant had refused to accept a shipment of bags which failed to come up to the requirements of the contract, he could have treated the contract as broken and refused to accept others, but he waived that breach by the acceptance, and treated the contract as being still in force. There was no testimony offered tending to show that appellee refused to ship bags of the kind and quality specified in the contract. All that the offered testimony showed was to the effect merely that the bag’s which were accepted were not in compliance with the contract, and, as we have already stated, there is no testimony that appellant ever made any complaint after the last shipment, which he accepted. Hence the testimony does not warrant an inference that appellee’s attitude was one of refusal to comply with the requirements of the contract with respect to future shipments. We are of the opinion therefore that the court was correct in excluding the testimony offered by appellant in regard to the defective quality of the bags which were accepted.

The undisputed testimony in the case was that appellant waived the defective condition of all the bags that were shipped, and that he broke the contract by refusing to accept any more deliveries. Liability of appellant being established by undisputed evidence, there was no error in the court’s giving a peremptory instruction.

'The evidence is also undisputed as to the damage caused by the rapid decline in prices of bags which appellant refused to accept; in fact, there is no complaint of the judgment on that ground.

Affirmed.

Smith, J.,

(dissenting). The testimony on the part of appellant was to the effect that no one of the shipments of bags came up to the specifications of the original contract, and this fact was called to the attention of the salesman of appellee, who in each instance agreed to have the defects remedied. Other orders were placed, and the same defects were found. Finally, after repeated protests against the character of bags which were shipped under the contract and the unperformed promises to comply with the contract, appellant discontinued his orders. A salesman of appellee called to see appellant, and the subject was again discussed, and appellant stated that he did not place the orders as contemplated in the original contract for the reason that the bags shipped did not conform to the contract. Appellant pointed out to the salesman the defects complained of, and the salesman promised that, if orders were renewed, there would be a compliance with the contract in the future. A sample bag, with the printing desired, was furnished the salesman, and it is not questioned that appellant had the right to specify the kind of bags he desired.

This final order was given under the express condition that appellant would no longer waive the right to insist that the bags comply with the specifications and would give no other orders if this final one was not properly filled. This order was placed with the salesman, but the bags shipped pursuant to it were found to be as defective as the former ones had been. Appellant testified that he used the bags because they would have been valueless to any one else on account of the printing on them.

Now, this is not a case of one refusing to accept a shipment of goods which did conform to the contract of sale because previous shipments which had been accepted did not conform to the contract. In fact, no bags were shipped which appellant refused to accept. The litigation arose over appellant’s refusal to place further orders, and the question is whether he should have continued to place orders.

Appellee’s manager at New Orleans testified that the bags shipped conformed to the contract. This was denied by appellant. It is true, of course, as was said in the case of Wooten & Co. v. Bain & Adams, 146 Ark. 462, from which the majority have quoted, that the purchaser cannot accept a delivery of goods, even though they do not conform to the contract, and thereafter refuse, on that account, to accept other deliveries which do conform to the contract. But it was also said in the case quoted from that “on the other hand, the fact that they had accepted a consignment of cotton falling short of the requirements of the contract did not require them to accept other consignments which did not meet the requirements of the contract. ’ ’

That principle is applicable here. The jury might have found, had the case been submitted to them, that the bags did not conform to the contract, although appellee’s insistence was that the bags did conform to the contract. The final shipment was ordered upon condition that the bags would conform to the contract. Appellee insisted that they did, and would, no doubt, have filled future orders in the same manner in which this last and the prior orders had been filled. Appellant was therefore under no duty to continue placing orders unless appellee would conform to the contract by shipping bags of the kind and quality specified in the contract. Appellee insisted that it was doing this, and had done so, and the jury might therefore have found that appellee would continue to ship bags which appellant thought did not conform to the contract.

Appellant did not refuse to receive the delivery of any bags which, according to his interpretation of the contract, conformed thereto. Appellee had not made any such, shipment, according to appellant’s contention. Appellee’s attitude was that it had shipped hags complying with the contract, which was a question of fact presented by the testimony, and appellee’s insistence was that appellant should place other orders, which would, no doubt, have been filled in the same manner as previous orders were filled, at least the jury might have so found.

If appellee had said that it would thereafter ship bags conforming to the contract, although it had not previously done so, appellant could not excuse himself from receiving such bags because prior shipments which he had accepted did not conform to the contract. But appellee made no such concession or promise. The jury was not permitted to decide the issue of fact—whether appellee had shipped bags which conformed to the contract—and so long as appellee insisted, not simply that it would thereafter perform the contract, but that it had previously done so, it would have had no right to demand that appellant continue to place orders, which would be filled as other orders had been, because the prior shipments had not been returned, if, in fact, appellant was right, and appellee .was wrong, in the dispute as to whether the bags conformed to the. contract.

I think therefore that the jury should have been allowed to decide whether the bags shipped conformed to the contract, and did appellee offer, if orders were, placed, to ship bags which would conform to the contract.

I therefore respectfully dissent.


author: Wood, J.

text:
    Kelleher v. Subsidiary Drainage District No. 11 of the St. Francis Drainage District.
    Opinion delivered May 3, 1926.
    Drain—right to object to assessment—limitation.-—Under §§ 6 and 9 of act 196 of 1911 and § 2 of act 235 of 1909 and § 7 of act 172 of 1905, providing that the assessors of the subsidiary drainage districts therein provided for should take into consideration any damages to landowners whose property should be taken for construction of a drainage ditch, and, if the damage exceeds the ¡benefits - to be derived from the improvement, the assessors should report the amount of excess to the board of directors, and providing, further, that an aggrieved property-owner shall have the right to make complaint before the board of assessors on a day of which notice was to be given, and to appeal from their assessment to the county court within 20 days, and" not thereafter, held that, though the assessors’ report failed to show that any damage had been allowed to plaintiff for his land taken for construction of a ditch, the plaintiff was barred by his failure to appeal from the assessment within the time prescribed by the statute.
    Appeal from Clay Circuit Court, Eastern District; G. E. Keck, Judge;
    affirmed.

      W. J. Irvin, for appellant.

      W. E. Spence, for appellee.
   Wood, J.

The St. Francis Levee & Drainage District was created under -act 172 of the Acts of Í905. That act provided for the construction of the drainage by assessment of benefits upon the property included in the district. ,The act (§ 18) provides that, “before any contracts are let to construct either the drain or ditch herein provided for, the 'board of directors shall have procured the right-of-way over the lands' through which the drain or ditch is to be made, and, in case they can not get a gratuitous relinquishment of said rights-of-way, they shall proceed as provided for the condemnation of the right-of-way.” Act 235' of the Acts of 1909 amended §§ 6, 7 and 11 of act 172 of Acts of 1905, prescribing in greater detail the methods whereby the assessment of benefits should be made, and it is provided in act 235, supra, that “any landowner of the district may appear before the assessors and make complaint as to his assessment, and, if aggrieved at the assessment fixed, he shall have the right to appeal therefrom to the county court within twenty days and not thereafter.”

By act 196 of the Acts of 1911, the Legislature further amended § 6 of act 172 of the Acts of 1905 and the acts amendatory thereof. By act 196, supra, the limits of the drainage district as originally created are extended, and provision is made for the creation of subsidiary districts, the directors and assessors of the original district being also the directors and assessors of the subsidiary districts, and they are to give the notice and make the assessment of benefits and revise the same in the manner provided by the original act 172, supra, and the subsequent amendatory acts. In act 196, supra, it is provided as follows: “Section 6. The assessors heretofore appointed by the board of directors for the said district shall continue to be the assessors of said district until superseded by said board, and said assessors shall proceed to make an assessment of the benefits to be derived from the construction of the improvement, and shall estimate and determine the amount of damages suffered by the owners of the several tracts or parcels of the land over which any right-of-way may pass, by reason of the land appropriated or otherwise, and make due allowance for all such damages to each piece of real estate in assessing the benefits to derive from the construction of the improvements. Provided that if, in their opinion, such damages to any tract exceeds the benefits to be derived, they report the amount of such excess as damages, which amount, upon the approval of the board of directors, shall be paid by such district to the owners of such property so damaged.”

This action was instituted by the appellant (plaintiff below) against the appellees (defendants below), Subsidiary Drainage District No. Ti and A. V. and E. S. Wills, partners doing business under the firm name of A. Y. Wills & Sons, contractors. Plaintiff alleged that he was the owner of certain lands in the district, and that the district, through these contractors, was cutting and dredging a ditch over and through his lands without right or authority, appropriating four acres thereof, to his damage in the sum of $400, for which he asked judgment. The defendants answered and admitted that they were cutting the ditch over plaintiff’s land, but denied that they were doing so without authority. They set up that the subsidiary district was organized under special act. 172 of 1905 and the acts amendatory thereof; that the directors of the district had complied with all the provisions of those acts in regard to the assessment of benefits and damages accruing to property owners by reason of the construction of the ditch or drain, and that the plaintiff had failed to appeal from the action of the bpard of assessors within twenty days, as required by law.

The case was tried before the court sitting as a jury by consent of parties, upon a statement of facts to which the parties agreed. In this statement it is shown that the appellee district was created under § 9 of act 196 of the Acts of 1911; that, under said act, the board of assessors of the St. Francis Drainage District had power to organize subsidiary drainage districts; that, after the organization of the district, the board of assessors proceeded to make an assessment of benefits on the lands embraced in the subsidiary drainage district, and filed its report, but failed to show that the damages to the lands of plaintiff were considered; that notice of the assessment was duly given, and plaintiff failed to make any complaint on the day set for the hearing oh the assessment of benefits, and failed to appeal within the time provided by law; that the notice of the filing of the assessment and the day set for a hearing did not designate that any dámage had been allowed the plaintiff, or that the plaintiff was called upon to file exceptions on account of damages; that the boarddiad entered into a contract with Wills & Sons to construct a ditch, a part of which ran over and across plaintiff’s land; that in so doing a strip of plaintiff’s laud was appropriated.

The trial court found that the plaintiff was barred from maintaining the. action by the provisions of § 6 of act 196 of the Acts of 1911 and § 7 of act 235 of the Acts of 1909. The court entered a judgment dismissing the complaint, from which is this appeal.

The trial court ruled correctly in holding that the assessment of benefits and damages in subsidiary districts created under act 196 of 1911 were governed by § 6 of that act and by § 7 of act 172 of 1905, as amended by § 2 of act 235 of 1909. The original St. Francis Drainage District was created under act 172 of the Acts of 1905. This act and act 252 of 1905, act 235 of 1909 and act 196 of 1911, amendatory of act 172, supra, are all parts of a connected system of legislation “having for its purpose the establishment of a main system of drains and levees for the protection of the lands in said district taken as a whole.” (Section 9, act 196 of 1911). The act creating the original district and all acts amendatory thereof must therefore be considered as in pari materia.

Now, considering § 6 of act 196 of 1911, under which the appellee subsidiary drainage district was formed, in connection with § 9 of that act and also in connection with § 2 of act 235 of 1909, we are convinced that it was the intention of the Legislature that the assessors of the district in making the assessment of benefits should take into consideration any damages to landowners whose property would be taken in whole or in part for the construction of the improvement, and to make due allowance for such damages, and if, in the opinion of the assessors, the damages resulting from the taking exceeded the benefits to be derived from the improvement, then the assessors were to report the amount of such excess as damages to the board of directors of the district. The assessments shall be made as to the time, place, notice, etc., according to the methods prescribed in § 2 of act 235 of the Acts of 1909 amending § 7 of act 172 of the Acts of 1905. This latter section, among other things, makes full provision for the property owner to appear before the board of assessors and register such complaint as he may desire to make of his assessment, or any other assessment, and if any owner is aggrieved at said assessment so fixed, he shall have the right to appeal to the county court within twenty days, and not thereafter.

2. It is unquestionably true that the act under which the appellee district was created contemplates that the assessors shall enter their assessment of record showing the value of the lands, with and without the proposed improvement and the benefit which each tract or parcel may derive by reason of the proposed improvement, as provided in § 3 of act 196 of 1911; but there is nothing in this section or in § 2 of act 235 of the Acts of 1909 prescribing the time, place, notice, and method of .the assessment, which requires that the notice to the landowner shall recite that damages have or have not been allowed in making the assessment. Nor is there any provision in the acts that, if the board of assessors should fail to keep a record as to the damages as provided in § 3, the assessment would be void on that account. The acts provide for notice to the landowner of the meeting of the board of assessors to hear the complaints that the landowner may wish to register against the assessment, which, under the act, includes an allowance or disallowance of damages for lands injured or taken by reason of the improvement, and he is likewise given his day in court in which he may challenge the final assessment as fixed by the board of assessors, and, if he fails to appear within the time prescribed by law and appeal to the county court and register his complaint against the assessment as finally fixed, for any reason whatever, he is forever thereafter precluded from doing so.

It follows that the judgment of the trial court must be affirmed. It is so ordered.


author: Hart, J.

text:
    Hogan v. State.
    Opinion delivered May 3, 1926.
    1. Criminal law—opinion evidence.—In a prosecution for carnal aibuse, the resemblance or nonresemblance of a bastard child to the accused cannot be shown by the testimony of witnesses, especially where the child lived only a week.
    2. Criminal law—former testimony.—In a prosecution for carnal abuse, where the female testified at the trial that the accused never had intercourse with her, her testimony before the grand jury to the contrary was admissible only to contradict her testimony at the trial, but was not competent to prove the defendant’s guilt.
    3. Criminal law—sufficiency of evidence.-—It devolves upon the State in a criminal case to establish the accused’s guilt 'by legal testimony of a substantial character, and matters of conjecture merely are insufficient.
    Appeal from Poinsett Circuit Court; G. E. Keclc, Judge;
    reversed.

      M. P. W ablins and L. G. Going, for appellant. -

      II. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.

Ollie Hogan prosecutes this appeal to reverse a judgment of conviction against him for the crime of carnal abuse.

Mrs. Lula Ramsey was' a witness for the State. According to her testimony, which was given on the first day of March, 1926, she is the mother of Mattie Ramsey, who is fifteen years of age. Ollie Hogan married her oldest daughter, who died about a month before the trial. Mattie never married, but had a child born something over a year ago. The child lived about a week. It resembled the defendant.

J. L. Ramsey, the father of Mattie Ramsey, was also a witness for the State. According to his testimony, Mattie was fifteen years of age at the time of the trial, and gave birth to a child something over a year ago. The child lived about a week, and favored the defendant. The witness lived about a quarter of a mile from the defendant, and got water at his well. Mattie would sometimes stay all night with the wife of the defendant, and sometimes woiild go there for water. When Ollie Hogan would he at the house of the witness and see Mattie start towards his house for water, he w.ould follow her.

J. P. Ramsey, eleven, years of age, the brother of Mattie Ramsey, was also a witness for the State. According t'o his testimony, one time when they were walking along the road with his sister Mattie, the defendant told him to get on his horse and go and hunt a cow.

Other witnesses for the State testified that they had seen the defendant in company with Mattie Ramsey and that he seemed to seek to be with her.

Another witness for the State testified that one time the defendant asked him what would produce an abortion.

Mattie Ramsey was also a witness for the State, and admitted giving birth to a baby some time in December a year before the trial. She said that Ernest Easton was the father of the baby. She denied ever having had intercourse with the defendant. She at first stated that she did not remember whether she had testified before the grand jury that Ollie Hogan was the father of her baby. Finally she admitted that she did testify before the grand jury that Ollie Hogan was the father of her baby, but said that this was not true, and that she only so testified before the grand jury because she was scared. She stated again that Ollie Hogan never at any time had intercourse with her.

Two grounds are relied upon for a reversal of the judgment, both of which are well taken.

The first assignment of error is that the court erred in admitting the testimony of the father and mother of Mattie Ramsey that, in their opinion, the child of Mattie Ramsey resembled the defendant. The child lived only a week. Where the child is old enough for the jury to determine whether or not its features resemble those of the defendant, this court has held that the child itself may be exhibited to the jury. Land v. State, 84 Ark. 199.

Evidence of resemblance of the child to the alleged father is but a matter of opinion, and is inadmissible. 7 C. J., § 125, p. 993, and cases cited.

This is especially true in the case of a child which only lived for a week, and which in the very nature of things could not have any settled features.

On this subject, in 3 R. C. L., p. 765, it is said: “The better rule, and the one supported by the weight of authority, is that the resemblance or nonresemblance of a bastard child to the defendant cannot be shown by testimony of witnesses, there being no profert of the child, as this is opinion evidence.” See also Jones v. Jones, 45 Md. 145; Shorten v. Judd (Kan.) 42 Pac. 337; Kenniston v. Rowe, 16 Me. 38; and Eddy v. Gray (Mass.) 4 Allen 435.

The next assignment of error is that the evidence is not legally sufficient to support the verdict. In this connection it may be said that the testimony of Mattie .Ramsey as to what she testified before the grand jury is inadmissible as substantive testimony tending to show the guilt of the defendant, but was only admissible to contradict the testimony given by the witness at the trial to the effect that the defendant had never had sexual intercourse with her. Minor v. State, 162 Ark. 136.

It. could not be said in any sense that the fact that Mattie Ramsey gave birth to a child of itself tended to show that the defendant had sexual intercourse with her. The only other testimony in the record is that, on different occasions, the defendant was seen walking with Mattie Ramsey and had opportunities to have had sexual intercourse with her. This is not sufficient. His guilt cannot be established by conjecture.

The defendant is not shown at any time to have been caught in a compromising position with Mattie Ramsey, nor is there any fact shown to establish that he had sexual intercourse with her, except that he seemed to be fond of her. His fondness for the girl may be attributed to the fact that she was his wife’s youngest sister. At least there is nothing in the .record tending to .establish his guilt of the crime charged. It devolves upon the State to establish his guilt by legal testimony of a substantive character, and matters of conjecture merely are not sufficient for that purpose.

For the errors indicated the • judgment must be reversed, and the cause will be remanded for a new trial.


author: Hart, J.,

text:
    Baker-Matthews Lumber Company v. Bank of Lepanto.
    Opinion delivered May 3, 1926.
    1. Logs and logging—mortgage of standing timber.—A mortgage of growing trees is a conveyance of an interest in the land itself.
    2. Mortgages—timber recently cut.—A mortgage of “all of the timber now standing and growing or having recently been cut down on all of the following described lands,” etc., held not fraudulent, regardless of the intent of the parties, where the timber recently cut was not a material part of the security.
    3. Mortgages—purchase of mortgaged property.—The purchaser of mortgaged property takes it subject to the mortgage where the mortgage is recorded.
    4. Estoppel—basis.—The principle of equitable estoppel is that when a man has deliberately done an act or said a thing, and another person who had a right to do so has relied on that act or ■ those words and shaped his conduct accordingly, and would be injured if the former could repudiate the act or recall the words, it shall not be done.
    5. Estoppel—silence.—To constitute silence an estoppel, there must be both the opportunity and the duty to speak, and the action of the person asserting the estoppel must be the natural result of the silence, and the party maintaining silence must be in a situation to know that some one is relying thereon to his detriment.
    6. Mortgages—willful trespass in cutting timber.—The mere fact that a mortgagor in possession cuts timber which he has mortgaged to another does not constitute him a willful trespasser in so doing; his liability as willful trespasser depending upon whether his act is so doing was in good or bad faith and whether or not it results in an injury to the mortgagee.
    Appeal froba Poinsett Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      STATEMENT BY THE COURT.
    This was a hill to foreclose a mortgage on timber executed by W. J. Rowe & Sons, a partnership, to the Bank of Lepanto, on the 10th day of September, 1919, to secure an indebtedness of $10,000. A renewal mortgage on the same property to secure the same indebtedness was executed on July 20, 1922, and duly filed for record.
    A receiver was asked on the ground that the mortgagors had cut and sold timber to an amount which impaired the mortgage security, and the Baker-Matthews Lumber Company, a corporation, was made a defendant on the ground that it had purchased the timber from the mortgagors and converted it to its own use. It was also alleged that the mortgagors were insolvent.
    The Baker-Matthews Lumber Company defended the suit on the ground that the mortgage was invalid as to third parties, and on the further ground that the mortgagee gave permission to the mortgagors to cut the timber ; or at least that it was estopped by its conduct from claiming the proceeds from the sale of the timber. The mortgage sought to be foreclosed was executed on the 20th day of July, 1922, and was duly filed for record.
    The description of the property is “all the timber now standing and growing, or having been recently cut down,” on certain lands “which are described according to the United States Government surveys.” The' mortgage recites that it is executed for the purpose of renewing an instrument between the same parties executed on the 10th day of September, 1919, and for the purpose of renewing the indebtedness created at that time. The indebtedness recited is the sum of $10,000, evidenced by a promissory note for that amount payable to the Bank of Lepanto on demand, with interest at 10 per cent, per annum until paid.
    The record shows that the original mortgage was executed on the 10th day of September, 1919, and that it was duly filed for record. The description of the property in it is also “all of the timber now standing and growing, or having been recently cat down,” on certain lands, which are described according to the United States Government surveys. The indebtedness is recited to be $10,000, evidenced by two promissory notes for the sum of $5,000 each, bearing interest at the rate of 10 per cent, per annum from date until paid. One of the notes is due four months after date and the other eight months after date. The evidence shows that none of the mortgage indebtedness has been paid.
    Other facts relating to the issues raised by the appeal will be stated and discussed under appropriate headings in the opinion.
    The chancellor found the issues in favor of the plaintiff, and made a particular finding that W. J. Rowe & Sons were insolvent, and that it was necessary for the protection of the mortgage indebtedness that the plaintiff should recover the stumpage value of the timber cut and removed, which was included in the mortgage.
    It was decreed that the plaintiff should recover $9,468.16, with 6 per cent, interest from December 15, 1924, from the Baker-Matthews Lumber Company. To reverse that decree, the Baker-Matthews Lumber Company has duly prosecuted an appeal to this court.

      H. R. Boyd and Charles D. Frierson, for appellant.

      John W. Scobey and Hawthorne, Hawthorne & Wheatley, for appellee.
   Hart, J.,

(after stating the facts). It is first contended by counsel for appellant that the decree should be reversed on the ground that the mortgage in question is constructively fraudulent and void, as far as the rights of appellant are concerned. They invoke the settled doctrine of this court that a mortgage on a stock of merchandise, which on its face ^expressly or by necessary implication authorizes the mortgagor to dispose of the property as his own, is, as a matter of law, without reference to the actual intent of the parties, fraudulent and void as to the rights of third parties. Lund v. Fletcher, 39 Ark. 325; Gauss Sons v. Doyle & Co., 46 Ark. 122; and Stix v. Chaytor, 55 Ark. 116.

They urge that there is no distinction, in the application of this principle, between a mortgage that conveys a stock of merchandise in a store and one that conveys lumber and other material, which may be by the mortgagor, in the due course of business, manufactured into furniture for the market and disposed of for the mortgagor’s use and benefit. Ables v. Keith, Simmons & Co. (Ala.), 44 Sou. 693, and cases cited.

The reason for the rule in the case of chattels is that the conduct of the parties dealing with the mortgaged property in such cases shows that the mortgage was executed with a fraudulent intent. Where the mortgage contemplates that the mortgagor shall continue in possession, making sales from day to day as owner, and dealing with the goods and proceeds as his own, with the mortgagee’s knowledge and consent, it is difficult to resist the conclusion that this course of conduct on the part of the mortgagor was intended by the parties when the mortgage was made. Hence in such cases it is held as.a matter of law that a chattel mortgage is void as against creditors and other persons acquiring interests adverse to the rights of the mortgagee.

This rule has no application, however, under the facts in the case at bar. The mortgage was given on standing timber which constituted a part of the realty. It is well settled in this State that growing trees constitute a part of the realty, and their conveyance by the owner to a purchaser is a conveyance of an interest in the land itself. Chicago Land & Timber Co. v. Dorris, 139 Ark. 333; Henry Quellmadz Lbr. & Mfg. Co. v. Roche, 145 Ark. 38; Graysonia-Nashville Limber Co. v. Saline Development Co., 118 Ark. 192, and cases cited.

It is true that the description of the property in the mortgage is, ‘ ‘ all of the timber now standing and growing or having recently been cut down on all the following described lands.” But the record shows that the mortgage on the standing timber constituted the greater part of it, and that the timber recently cut down was a mere incident, and that the mortgage on it was not the real security. It will be Remembered that the mortgage executed in 1922 was but a renewal of the original mortgage executed in September, 1919. Under these circumstances it cannot be said that the mortgage is fraudulent without regard to the actual intent of the parties to defraud.

It is conceded that the general rule is that a purchaser of mortgaged property takes it subject to the mortgage, where the mortgage is recorded as in the present case. The undisputed facts show that no express agreement was entered into between the mortgagors and the mortgagee to allow the former to sell the mortgaged property and subject the proceeds to its own use. The mortgagors, however, were placed in possession of the timber embraced in the mortgage, and it is claimed that they had the implied authority to cut and carry away the mortgaged timber.

The president of the Bank of Lepanto testified in positive terms that he did not give the mortgagors nor' any one else authority to cut the timber embraced in the mortgage. He admitted that he agreed with the mortgagors and a representative of 'the Baker-Matthews Lumber Company that the stumpage might be manufactured into lumber, if an arrangement could be made whereby the bank was to be paid for the stumpage. On June 30, 1921, the president of the bank did write to appellant a letter, in which it admitted that some of the timber securing the indebtedness to it had'been cut into lumber. There is nothing whatever in the letter or in the testimony to indicate that the bank knew that any considerable portion of the timber had been cut. On the other hand, in the same letter, the bank expressed the hope that Rowe would have by that time enough equity in his contract with appellant that it could let the bank have some payment on its indebtedness and still have a margin for appellant.

The record shows that the mortgagors had 230 or 240 acres of timber lands in addition to those embraced in the mortgage, .and that they had made a deal with Crigger Bros, to out and remove this timber. These lands were heavily timbered. The bank also knew that the mortgagors had made a contract with appellant to make them advances for cutting and removing the timber by Crigger Bros. It seems that the reference to the profits spoken of in this letter refer to the contract with Crigger Bros, 'to cut and remove the timber from the 240 acres of land. The testimony does not show that the bank knew that any considerable quantity of the mortgaged timber had been cut.

Testimony was introduced by appellant tending to show that the bank might have obtained such knowledge if its agents had gone on the lands and examined the mortgaged timber. This may be true; but no duty in that respect devolved upon the plaintiff. Appellant had actual and constructive knowledge of the mortgage to the bank, and knew that it could only purchase the timber subject to the rights of the mortgagee. The mere fact that the mortgagee should fail to find out whether or not the timber had been cut could in no sense divest it of any of its rights under the mortgage. The fact that the checks given to timber cutters passed through the bank was not sufficient to show that the bank had given the mortgagors permission to cut the timber. As we have already seen, -the bank thought that the timber was being cut under the contract with Crigger Bros., and had a right to assume that these checks were given for timber cut on the 240 acres of land. The fact that the bank knew in June, 1921, that some of the timber had been cut from the land did not amount to an agreement or assent that the mortgagors might cut and dispose of the balance of the timber. We do not deem it necessary to set out all the evidence on this branch of the case. The witnesses were examined and cross-examined at great length, and to set out their testimony would unduly extend the.opinion and serve no useful purpose. We have carefully considered all the evidence on this phase of the case and have reached the conclusion that there was no implied consent on the part of the bank for the mortgagors to cut the timber embraced in the mortgage and sell the same to appellant.

This is an action in the nature of waste against a mortgagor in possession for cutting timber and selling it, and also against the purchaser of the timber to recover the proceeds of sale. In this view of the matter, it is insisted that the plaintiff as mortgagee is estopped .from claiming the proceeds of the sale of the mortgaged timber. The whole principle of equitable estoppel is that, when a man has deliberately done an act or said a thing, and another person who had a right to do so has relied on that act or words, and shaped his conduct accordingly, and will be injured if the former can repudiate the act or, recall the words, if shall not be done. Trapnall v. Burton, 24 Ark. 371.

While mere silence may operate as an estoppel in equity, to constitute silence an estoppel there must be both the opportunity and the duty to speak, and the action of the person asserting the estoppel must be the natural result of the silence, and the party maintaining silence must be in a situation to know that some one is relying thereon to his detriment. Brownfield v. Bookout, 147 Ark. 555; Indiana Lumberman’s Mut. Ins. Co. v. Meyers Stave Mfg. Co., 164 Ark. 359; Moliter v. People’s Building & Loan Assn., 168 Ark. 53; and Pettit-Galloway Co. v. Womack, 167 Ark. 356.

Tested by this principle, it cannot be said in any sense that the bank is precluded by equitable estoppel from asserting its rights as against the appellant as the purchaser of the timber embraced in the mortgage. The bank did nothing whatever to mislead appellant, and did not in any sense induce it to purchase the mortgaged timber upon a reliance that it would not assert its rights under the mortgage.

In the letter of June 27, 1921, written by appellant to the bank, it expressly refers to a letter which it had received from the hank relative to its mortgage on the timber in question. . After discussing certain handicaps which Bowe had had in his contract with Crigger Bros., appellant goes on to state that, as soon as the Crigger Bros’, timber is cut up and out of the way, it. believes that arrangements can be made where it would be willing to make the bank an advance on the timber embraced in its mortgage as fast as Bowe cuts it. The letter goes on to say that this would reduce the loan of the bank as fast as the timber was cut, and, in addition, that Bowe would have a substantial equity in the timber which he had on hand. It is apparent from the letters and from the oral testimony that appellant fully understood that the bank was relying upon its mortgage on the timber. The evidence shows that the mortgagors were insolvent. It does not disclose in definite terms that the mortgagors were insolvent during all of the time of the transaction in question, but the circumstances point that way. Appellant’s letters show that it was not willing to make advances to the bank upon its mortgage until the mortgagors were ready to commence cutting the mortgaged timber. It is fairly inferable that appellant knew that the bank was relying upon the timber embraced in its mortgage for the payment of its mortgage indebtedness and that the bank was only agreeing that the mortgagors might make a contract with appellant to advance them money with which to cut the timber upon the assurance that the proceeds of sale should be applied to the payment of the mortgage indebtedness. The bank did not, by word or conduct, lead appellant to believe that it had •assented to the mortgagors cutting the timber and selling the same to appellant without recognizing its rights as mortgagee.

It is well settled that the possession of the mortgagor is not hostile or adverse to the mortgagee, and that the mortgagor can make no contract respecting the mortgaged property which would bind the mortgagee or prejudice his rights. The mortgagors could not bind the bank by any representations, if they made any. There was nothing done or said by the bank which indicated that it intended to release its mortgage on the timber, nor was it guilty of any conduct which operated as an estoppel in favor of appellant under the principles above announced.

Upon the whole case we think the bank is entitled to enforce its mortgage and to recover the value of the timber as it stood in the ground. Without recounting or reviewing the testimony on this point, it may be said that the chancellor allowed the bank to recover on this basis, and the amount allowed is sustained by a preponderance of the evidence.

On the question of the cross-appeal but little need be said. The mortgagors were legally in possession of the mortgagéd timber, and there is nothing in the facts in this case which would constitute them a willful trespasser in cutting the timber. The mortgagors acted under a misapprehension of their riglits in the premises, but there is nothing to bring the case within the rule announced in our cases making willful trespassers suffer some punishment for their depredation. Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302; Griffith v. Ayer-Lord Tie Co., 109 Ark. 223; and Warren Stave Co. v. Hardy, 130 Ark. 547.

The case is .more like that of Foreman v. Holloway & Son, 122 Ark. 341. In that case it was held that the mere fact that ,a mortgagor in possession cuts timber upon lands which he has mortgaged to another would not alone constitute him a willful trespasser in so doing; and that it would depend upon the facts and circumstances going to show whether his act in so doing was in good or bad faith, and whether or not it results in an injury to the mortgagee.

It follows that the decree will be affirmed.


text:
    Turner v. Ederington.
    Opinion delivered May 3, 1926.
    1. Statutes—construction with reference to subject-matter.—In the construction of statutes, words are to he understood as used in reference to the subject-matter in the. minds of the Legislature, and strictly limited to it.
    2. Statutes—construction to effectuate intent.—When the general intent of a statute is once clearly ascertained, general words may foe restrained and those of narrower import expanded to effectuate that intent.
    3. Statutes—ascertainment of intention.—The intention of a statute is to be collected either from the words, the context, the subject-matter, the effects and consequences, or from the spirit and reason of the law, and from other acts in pari materia.

    4. Statutes—construction to carry out intent.—When discovered, the intention of a statute ought to be followed with reason and discretion in its construction, although such construction seems contrary to the letter.
    5. Municipal corporations—improvement- districts—cost of improvement.—Crawford & Moses’ Dig., § 3643, providing that interest on installments in drainage and other improvement districts is not to foe construed as part of the cost of construction in determining whether the expenses and costs of making the improvement are in excess of the benefits assessed, applies only to drainage -and levee districts, and not to local improvement districts in cities and towns.
    Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Louis Ederington, a property owner in Paving Improvement District No. 3 of the city of Warren, Arkansas, brought this suit in equity against Cone Turner, Noel Martin and Joe L. Beaves, Jr., as commissioners of said improvement district, to enjoin them from making any contract for the sale of bonds of said district, or carryt ing out the work under the assessment of benefits.
    According to the allegations of the complaint, the estimated cost of the improvement is more than the amount of the assessment of benefits, unless the deferred installments of the assessment of benefits shall bear interest.

      The court overruled a demurrer filed by the defendants to the complaint. The defendants declined to plead further, and from an adverse decree in accordance with the prayer of the complaint they have duly prosecuted an appeal to this court.

      Duval L. Purhins and Rose, Hemingway, Cantrell <& Loughborough, for appellant.

      Fred L. Purcell, for appellee.
   Hart, J.,

(after stating the .facts). Counsel for the defendants contend that § 3643 of Crawford & Moses’ Digest applies to local improvement districts in. cities and towns, and it is conceded by counsel for the plaintiff that, if the section applies, the decree of the chancellor is wrong because, if interest allowed on the deferred installments of the assessment of benefits at the rate of six per cent, per annum is not construed as part of the cost of construction, as provided in the section, the assessment of benefits will be greater than the estimated cost of the improvement, including interest.

Section 3643 reads as follows: ‘ ‘ The amount of interest which will accrue on bonds issued by such districts and subdistricts shall be included and added to the tax, but the interest to accrue on account of the issuing of said bonds shall not be construed as a part of the cost of construction in determining whether or not the expense and costs of making said improvement are or are not equal to or in excess of the benefits assessed. When assessments of benefits are made in drainage and other improvement districts, the landowners shall have the privilege • of paying the same in full within thirty days after the assessment becomes final. But all such assessments shall be made payable. in installments, so that not more than twenty-five per cent, shall be collectable in any one year, against the wishes of the landowner, and, in the event that any landowner avails himself of this indulgence, the deferred installments of the assessed benefits shall bear interest at the rate of six per cent, per annum, and shall be payable only in installments as levied. The levy of the assessment may he made by way of proportional amounts of the total assessed benefits, and interest need not be calculated until it is necessary to do so to avoid exceeding the total amount of benefits and interest.”

■Section 3643 of the Digest is § 10 of act 177 of the Acts of 1913, p. 738. Act 177 is entitled “An act to amend act No. 279 of the Acts of 1909, approved May 27, 1909, and to amend act No. 221 of the Acts of 1911, passed to cure defects in the organization of districts under the original act.” Act 279 is a general act to provide for the creation of drainage districts in this State.

For a reversal of the decree, counsel for the defendants rely upon the rule of construction applied in Young v. Red Fork Levee Dist., 124 Ark. 61. In that case the court had under consideration an act of the Legislature of 1905, which had for its purpose to provide a method for the exercise of the right of eminent domain by levee, drainage, and ditching districts. Section 1 of the act providés that “the board of directors of the St. Francis Levee District and all other levee and drainage districts organized under the laws of the State” are impowered to enter upon lands, etc. The court held that the statute was a general one applicable to all levee and drainage districts in the State. It would seem that the St. Francis Levee District was specially named, so that there could be no doubt of the statute applying to it, although it was general in its nature. In that case the court properly held that the meaning of the words, “all other levee and draixxage districts,” must be sought from the entire act, including the title and the object to be accomplished. The general purpose of the act, as derived from a consideration of every section, clearly shows that it was a general statute to be applied to all levee and drainage districts.

We do not think that, when the general purpose of the legislation in the present case, appearing frota a study of the original act in collection with the amendatory acts, is considered, we must give the general words in question the ‘broad signification sought to be placed upon them by counsel for the defendants. It is a canon of interpretation “that'all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be particular; that is, they must be understood as used in reference to the subject-matter in the. mind of the Legislature, and strictly limited to it. ’ ’ Endlich on the Interpretation of Statutes, § 86.

“It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject-matter is once clearly- ascertained and its general intent, a key is found to all its intricacies; general words-may be restrained to it, and those of narrower import may be expanded to embrace it to effectuate that intent.” Lewis’ Sutherland Statutory Construction, 2 ed., vol. 2, § 347 (218).

In Woodruff v. State, 3 Ark. 285, the rule is stated as follows: “-That, in construing statutes, the intention of the Legislature is a fit and proper subject of inquiry, is too well settled to admit of a doubt. This intention is to be collected either from the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law, and other acts in pari materia. It may not, however, be amiss to state and keep in view some of the established rules on the subject. Such a construction ought to be put upon a statute as may best answer the intention which the makers have in view, and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and whenever such intention can be discovered, it ought to be followed with reason and discretion, in the construction of the statute, although such construction seems contrary to the letter of the statute. And such construction ought to be put upon it as will not suffer it to be eluded.”

In the application of the rule to the case at bar we think that the chancery court properly held that the Words, “and other improvement districts,” should be limited to such districts as could be formed under the original drainage act of 1909 and the subsequent acts amendatory thereof.

Act 279, approved May 27, 1909, as we have already seen, was an act to provide for the creation of drainage districts in this State. It contained thirty-two sections. Section 32 provides that the word “ditch,” as used in the act, shall :be held to include branch or lateral ditches, tile drains, levees, sluiceways, floodgates, and any other construction work found necessary for the reclamation of wet and overflowed lands. Act No. 221, passed by the Legislature of 1911, was passed for the purpose of amending the original act of May 27, 1909, and to cure defects in the organization of districts under it.

Act No. 177, passed by the Legislature of 1913, contains twenty-two sections, and was passed for the purpose of amending the original act of 1909 and the amendatory act of 1911. Thus it will be seen that the original act and the amendatory acts deal exclusively with the organization of drainage districts, and the Legislature had no other purpose in view in passing the original act or the amendatory acts. One purpose of the amendatory acts was to cure defects in the original act.

As we have already seen, the office of canons of construction is to aid the court in determining the true meaning of a statute. When we consider the general purpose of the original act and the act under consideration as amendatory of it, we are of the opinion that'the Legislature meant that the words, “other improvement districts,” should mean such other levee and drainage districts as might be formed and constructed in aid of the original improvement. There is nothing whatever in the original act or the amendatory acts to indicate that the Legislature had in mind any change in the law as to the assessment of benefits as applied to local improvements in cities and towns, or to any other kind of local improvements, except those provided for in. the drainage statutes.

The result of our views is that the opinion of the chancellor as to the construction to he placed upon the statute was correct, and the decree of the chancery court will therefore he affirmed.


author: Smith, J.

text:
    Paving District No. 36 v. Little.
    Opinion delivered May 3, 1926.
    1. Municipal corporations—creation op improvement districts.— Amendment No. 13 to the Constitution, relating to the initiative . and referendum of statutes and municipal ordinances, has no reference to municipal ordinances creating improvement districts in cities and towns, as such ordinances cannot be properly called municipal legislation or measures, since the council in such a case is the mere agent of the property owners to make effective the will of the latter.
    2. Constitutional law—due process—improvement districts.—• Ordinances creating improvement districts in cities and towns are not subject to attack as involving a taking of property without due process of law, since landowners have full opportunity to be heard upon the question of the formation of the district and the extent of the burden imposed upon property owned by them.
    Appeal from Sebastian Chancery Court; J. V. Bour-Icmd, Chancellor;
    reversed.

      Pryor, Miles •& Pryor and George W. Dodd, for appellant.

      Daily Woods, for appellees.
   Smith, J.

Appellées, who were the plaintiffs below, owned real property within the limits of Paving District No. 36 in the city of Port Smith, and they brought this suit to cancel the ordinance of that city whereby the district was created.

Two questions are presented by this appeal. The first is whether the amendment voted on at the election in 1920 as Amendment No. 13 applies to municipal ordinances creating improvement. districts in cities and towns; and the second, whether the improvement district here in question was void because the cost of the proposed improvement exceeded the betterments assessed therein.

Under the decision of this court in the case of Hill v. Brickhouse, 167 Ark. 513, this amendment was declared adopted, and it is conceded that, if this amendment applies to municipal ordinances creating improvement districts, ordinance No. 1397, which created Paving District No. 36, was prematurely passed.

Relevant portions of the constitutional amendment read as follows: “Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall he enacted providing for the exercise of the initiative and referendum as to counties. Fifteen per cent, of the legal voters of any municipality or county may order the referendum, or invoke the initiative upon any local measure. In municipalities the number of signatures required upon any petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties, upon the office of circuit clerk. In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election, at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; nor less than ninety days when filed against a local or special measure passed by. the General Assembly.

“Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.”

The amendment contained a section reading as follows:

“Definition. The word ‘measure’ as used herein includes any bill, law, resolution, ordinance,' charter, constitutional amendment or legislative proposal or enactment of any character.”

In our opinion the amendment does not apply to the ordinance in question.

In the case of Fitzgerald v. Walker, 55 Ark. 148, the court, in considering the nature of the improvement districts which § 27 of article 19 of the Constitution authorizes the property owners in the cities and towns of the State to organize, said: “The fact that an improvement district is organized to accomplish a purpose which, in a limited sense, may be said to be ‘municipal’, does not make it a ‘municipal corporation.’ It exercises no legislative powers, and lacks many other essential characteristics of a corporation created for the government of a city or town. * * * It is said, however, that an improvement district is the agent of the city, and as such can have no greater power than its principal. But such district is n,ot in any sense the agent of the city or town within which it is organized. Its powers are derived directly from the Legislature, and in exercising them the board acts as the agent of the property owners whose interests are affected by the duties it performs. (Citing cases).”

In the case of Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4, the court discussed the authority of the councils of cities and towns over improvement districts organized under statutes enacted pursuant to § 27 of article 19 of the Constitution. The question there involved was the right of the council to abolish an improvement district. After setting out the sections of the statute under which the owners of property may proceed in organizing an improvement district, the court said: “If it (the town or city council) refuses to make the assessment (after the statute has been complied with by the property owners), it can be compelled to do so by mandamus, at the instance of the board. It cannot lawfully withhold from the board the means for completing the improvement when the cost does not exceed twenty per centum of the assessed value of the real property in the district. It may refuse to make an assessment when the cost of the improvement exceeds twenty per centum of the assessed value of the real property. In this way, and in no other, is it authorized by the statute to defeat the improvement.” It was there further said: “The statutes do not place the board of improvement under the supervision and control of the city council, to be used as an agent to carry into effect its wishes or commands. Fitzgerald v. Walker, 55 Ark. 157. But they give the board complete control over the construction of the improvement, and invest it with the' power to make all contracts necessary to be made in respect thereto, with the power to borrow money, to institute suits in. its name to enforce the payment of the assessments upon the real property in its district, to disburse the money collected to pay the cost of the improvement, and with the power, except as aforesaid, to compel the city council by mandamus to make further assessments upon real property to^complete the improvement.”

In the case of Tomlinson Brothers v. Hodges, 110 Ark. 528, the construction of an act passed at the special session of the 1911 General Assembly to carry into effect the provisions of the amendment voted on as Amendment No. 10 was involved. Act No. 2, Acts 1911, page 582. The amendment voted on as No. 10 was the original I. and R. amendment. This court held, in the' case cited, that this act of 1911, passed for the purpose of carrying into effect the I. and R. amendment, was intended only to carry out and put into effect the constitutional amendment, and did not confer on the people of a municipal corporation referendum power over an ordinance passed by a city council which granted a franchise to furnish lights to the city. The 'General Assembly, at its 1913 session, passed another act granting to the people of municipal corporations the right to refer ordinances passed by the council of such municipal corporations and to prescribe the method of referring the same. Acts 1913, page 563. This act is found as §§ 7503 et seq., C. & M. Digest.

The case of Hodges v. Board of Improvement, 117 Ark. 266, involved the construction of the act of 1913, "in which case it was attempted to refer to the people an ordinance of the city of Texarkana creating a waterworks improvement district. The court there said: “We are of the opinion that act No. 135 of the Acts of 1913, above referred to, was intended to apply only to matters of general legislation by the city council in. which all electors without distinction may take part.” This opinion was delivered March 1, 1915.

It is significant that Amendment No. 13, the submission of which was authorized at the 1919 session of the General Assembly, made no reference to the act of 1913, but expressly repealed the act of 1911 hereinbefore referred to. The new amendment made the granting of franchises subject to the referendum, as this is a matter of general concern to all the inhabitants of the town or city, but no language was used in the amendment which we think can be construed as subjecting improvement districts to a referendum of the electors generally. Had any such result been intended, we think it would have been indicated by a reference to them eo nomine, especially so when the provisions of § 27 of article 19 of the Constitution on the subject are considered, of which we shall later have more to say.

We think the ordinances which the town and city councils are required to pass as the agents of the property owners in any improvement district cannot properly be called municipal legislation, nor do they come within the definition of the word “measure” appearing in the amendment. These councils are the mere agents selected by the General Assembly to make effective the right given property owners 'by § 27 of article 19 of the Constitution. Eickhoff v. Street Imp. Dist. No. 11 of Argenta, 120 Ark. 212; Board of Imp. v. Pollard, 98 Ark. 543; Meyer v. Ring, 162 Ark. 9.

It is a matter of common knowledge that our I. and R. amendments were both largely patterned after those of the State of Oregon, and, this being true, the decision of the Supreme Court of that State in the case of Long v. Portland, 98 Pac. 1111, is entitled to special consideration.

The original I. and R. amendment of that State was amended to read as follows: ‘ ‘ The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all_ local, special, and municipal legislation, of every character, in or for their respective municipalities and districts.”

The amendment quoted was construed by the Supreme Court of Oregon as referring to general municipal legislation, and it was held that it did not include transient orders concerning a particular person, and held that legislation of that character might be enacted without reference to the referendum power.

If appellees’ contention that the amendment voted on known as No. 13 applies to ordinances creating improvement districts, were correct, our statute on the subject of creating such districts would have been rendered inoperative. If such ordinances are subject to the referendum provided by the amendment, the ordinance would not be effective for ninety days after the passage, while the statute requires that the petition signed by a majority in value of the property owners shall be filed within three months after the publication of the ordinance creating the district, and, if this petition cannot be validly filed until the period for referendum has expired, then it cannot be filed at all within the time limited by the statute. Section 5652, C. & M. Digest. It would thus be necessary to reconstruct the entire municipal improvement district law, and, while the amendment might accomplish that result, it is not probable that this was intended without including improvement districts eo nomine in the amendment, as franchises were included.

In the case of Hodges v. Dawdy, 101 Ark. 583, it was said that, in construing’ constitutional amendments, such an interpretation should be made in cáse of ambiguity that inconvenience and absurdity may be avoided.

In the construction, of amendments to the 'Constitution it was said in the Hodges v. Dawdy, supra, case that, “the amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in, force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it.”

When that rule of construction is applied here, we conclude that the amendment did not intend to change in any way the provisions of § 27 of article 19 of the Constitution, which reads as follows: ‘‘Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in, towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem and uniform. ’ ’

Under this section the right to construct municipal improvements is given to the property owners upon whose property the burden of the expense will fall. Very frequently these improvements cover only a small portion of the city or town in which it is proposed to construct them. Yet, if these ordinances are subject to Amendment 13, any improvement, however small, would be subject to the approval of the electors, as such, of the entire city or town, whether they were property owners in the district or not.

The statutes enacted pursuant to § 27 of article 19 provide, in effect, for both an initiative and a referendum. Ten property owners must initiate, and a majority must approve, but, under this section of tbe original Constitution, tbe consent of tbe property owners only is required.

We conclude therefore that the ordinances creating improvement districts are not “measures” as that word is defined in Amendment No. 13.

Appellees insist that, if the ordinances creating improvement districts are not treated as legislative enactments, all the statutes on the subject would fall, as constituting a taking of property without due process of law, in violation of the Fourteenth Amendment to the Federal Constitution. We do not agree with counsel in this contention. These ordinances emanate directly from statutes passed by the General Assembly of the State, which give full opportunity to a protesting landowner to be heard both on the question of the formation of the district at all and also upon the question of the extent to which, if any, the burden of the cost of the improvement may be imposed upon property owned by him.

The plans of the proposed improvement approved by the commissioners of the city show an estimated cost of $8,000,. while the betterments assessed totaled only $7,999.68. It appears therefore that the estimated cost exceeds by 32 cents the betterments to result from the improvement. The protesting landowners insist that this excess renders the district void.

In answer to this contention it may be said that if the maxim, de minimis non curat, lex, does not apply (Ganaway v. Street Imp. Dist. No. 32, 164 Ark. 407), it may be said that the commissioners appropriated $5 of the city’s funds to aid in the construction of the improvement, thus bringing the estimated cost below the assessed betterments. This donation brought the cost of the improvement below the betterments assessed against the property, and answers the objection that the cost exceeded the betterments. McDonnell v. Imp. Dist., 97 Ark. 334; Shoffner v. Dowell, 168 Ark. 229.

Upon the whole case, we conclude that the attack upon the validity of the district is without merit, and the decree of the court below invalidating the district will therefore be reversed, and the cause remanded with directions to dismiss the complaint for want of equity.