author: Hart, J.

text:
    Johnson v. Mitchell.
    Opinion delivered April 21, 1924.
    1. Parent and child — duty to provide for minor children. — The duty of parents to provide for their minor children is grounded, not only on the duty of a father to his child, hut also to the public.
    2. Parent and child — parent not bound by child’s contract.— Where a father has supplied his minor children with necessaries suitable to his own condition in life, or is ready to supply them, he cannot be bound by a contract which they may make with a third party, although the goods purchased by them may be regarded as necessaries.
    3. Parent and child — authority of child — evidence.—Circumstantial evidence may be sufficient to show authority of children to bind their parent to pay for necessaries furnished them.
    4. Parent and child — instruction.—In an action for goods sold to defendant’s minor children, an instruction to find for plaintiff unless defendant established, in accordance with his contentions at trial, that he had instructed plaintiff not to sell any more goods to his family without a written order, held erroneous, as placing the burden on defendant to disprove his liability, instead or requiring plaintiff to prove same.
    5. Evidence — burden of proof. — Under Crawford & Moses’ Dig., §§ 4112-3, the duty is upon the party holding the affirmative on an issue to produce evidence to prove it.
    Appeal from'Sevier -Circuit Court; Bm E. Isbell, Judge;
    reversed.

      Lake & Lake, for appellant.
    In order to hold the parent liable there must be either an express promise to pay or circumstances from which a promise can be implied. 29 Cyc. 1608; Rodgers on Domestic Relations, 493. 'Before one can be held to have ratified any unauthorized act of one who assumes to be his agent, the principal must have knowledge of all the material facts upon which snch agency is predicated; and ignorance of such facts renders the alleged ratification invalid. 147 Ark. 425; 100 Ark. 399. An estoppel in pais is conduct intended and calulated to induce another person to alter his condition so that it would be a fraud on him to allow the other person to take an inconsistent attitude to his detriment. 131 Ark. 77; 148 Ark. 295; 91 Ark. 141; 64 Ark. 213; 64 Ark. 627; 48 Ark. 409.

      Abe Collins, for appellee.
    A promise to pay is implied where the parent, without objection, allows the child, who is a member of his household, to receive or retain necessaries furnished by another person, although they are purchased by the child without authority. 29 Cyc. 1610-11 C.
   Hart, J.

F. G. Mitchell commenced this suit before a justice of the peace against J. W. Johnson to recover the sum of $202.75, alleged to be due for groceries sold to minor children of the defendant by the plaintiff. In the justice of the peace’s court the plaintiff obtained judgment for the amount claimed, and the defendant appealed to the circuit court.

At the time the groceries were purchased the minors were residing with their father, and, so far as the record shows, he was furnishing them with food and support suitable to his condition in life.

The plaintiff was the principal witness for himself, According to his testimony, the defendant owed him for groceries furnished his family upon the order of his minor children in the fall of 1918, and on Thanksgiving Day the defendant came in and paid his bill to the plaintiff. At the time he paid his bill, the defendant told the plaintiff not to let the children have any more “foolishness.” After that time the groceries which make up the account sued on were sold to the children for their father. The articles consist mainly of eggs, sugar, coffee, flour and lard. The plaintiff sold the children of the defendant these articles because he did not consider them “foolishness.” The father refused to pay the account, hence this lawsuit.

The defendant was the principal witness for himself. According to his testimony, he did not consent to the purchase of the groceries, nor did he have any knowledge concerning the matter until the hill for them was presented to him, more than a year after he had paid his account at the plaintiff’s store and told him not to sell his children any more goods except upon written orders from himself. The defendant admitted paying his account to the defendant on Thanksgiving Day, 1918, and said that, when he did so, he told the plaintiff not to furnish his children any more goods of any kind except upon the written orders of himself. The testimony of the father in this respect was corroborated by that of a minor son who was with him at the time.

The jury returned a verdict in favor of the plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

The duty of parents to provide for their minor children is a principle of natural law, and this obligation to support the children 'begotten by them is grounded, not only on the duty of a father to his child, but also to the public. Lefils v. Sugg, 15 Ark. 137, and Jordan v. Wright, 45 Ark. 237.

It is equally well settled by these authorities, which rest upon the principles of the common law, that, where the father has supplied his minor children with necessities suitable to his own condition in life, or is ready to supply them, he cannot be bound by a contract which the minor children may make with the third party, although the goods purchased may be regarded1 as necessaries. The reason is obvious. If, in such cases, strangers might furnish children with necessaries against the will of parents, the latter would, in a large measure, lose their parental control over their children. Then, too, if merchants are allowed to sell goods to minor children and compel their fathers to pay for them, regardless of the-fact of whether or not he was supporting his children according to his own circumstances in life, any man who had a family might be ruined. Therefore every man may maintain his own children as he shall think proper, and it requires a contract to enable another person to do so and charge him for it in an action. Gordon v. Potter, 17 Vt. 348.

This contract, however, may be either express or implied, and courts are so zealous to enforce the parental obligation that circumstantial evidence is sufficient to show that the children had authority to bind the father for the payment of the goods at the time the purchase was made.

Testing by these principles of law, we think the court erred in giving instruction No. 1 to the jury. The instruction reads as follows: “Unless you find from a preponderance of the evidence that the defendant told the plaintiff, prior to the time he sold and delivered the goods in question to his family, not to sell any more goods to his family without a written order from him, you will find for the plaintiff.”

At the request of the defendant the court gave instruction No. 2, which reads as follows: “You are instructed that the burden of proof is upon the plaintiff to establish by a preponderance of the evidence that the goods sued for in this case were delivered by the plaintiff to defendant upon a promise, expressed or implied, to pay for them.”

This instruction was a correct declaration of the law, but a comparison of the two instructions will show that they are in irreconcilable conflict. The plaintiff brought the action, and, under our Civil Code, the party holding the affirmative of an issue must produce the evidence to prove it. The burden of proof was upon the plaintiff to establish his cause of action. Crawford & Moses’ Digest, §§ 4112, 4113.

The theory of the plaintiff Was that there was an implied contract upon the part of the defendant to pay for such groceries as his children might purchase to he used in supplying the family table. According to his testimony, when the father last paid his account he directed the plaintiff not to furnish his children any more “foolishness.”

On the other hand, according to the testimony of the defendant, he told the plaintiff not to furnish his children any more goods except upon a written order signed by himself.

The undisputed evidence shows that the defendant was supporting his children and supplying them with neeessary food and clothing. He had the right to buy these articles wherever he wanted to, and, in order for the plaintiff to maintain his cause of action, he must show a binding contract with the defendant, either express or implied. Therefore the court erred in instructing the jury that the plaintiff was entitled to recover unless it should find from a preponderance of the evidence that the defendant had told him, prior to the time he sold the goods in question, not to sell any more goods to his minor children without a written order from himself.

The instruction was necessarily prejudicial to the rights of the defendant, for it put a burden upon him which should have been borne by the plaintiff. The respective theories of the parties as to the authority given by the defendant to the plaintiff to supply the former’s children with goods were in direct conflict, and, in order to entitle the plaintiff to recover, he must establish his cause of action by a preponderance of the evidence. The instruction, having placed the burden on the defendant to establish his defense, was necessarily prejudicial to his rights, and the same vice was carried into other instructions given by the court at the request of the plaintiff.

Therefore for the error in giving instruction No. 1 for the plaintiff the judgment will be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Brown-Moore Lumber Company v. Morgan.
    Opinion delivered April 21, 1924.
    Partnership — when not created. — A contract between the owners of timber lands and the assignee of a lumber company’s contract, giving the assignee option to cut the timber at a stipulated price, and providing for suspension of operations should they prove unprofitable and that such suspension should not cause a forfeiture, held not to create a partnership between the owners and such assignee.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Q. A. Morgan, W. W. Barrett and E. R. Barrett brought this suit in equity against the Brown-Moore Lumber Company to obtain an accounting of the amount owed the plaintiffs by the defendant for timber cut on their lands under a contract, and also to foreclose a mortgage on personal property given to secure said indebtedness.
    The defendant denied owing the plaintiffs any amount whatever, and claimed that there was a partnership existing between them for cutting and removing the timber from the lands of the plaintiffs.
    • • The plaintiffs are citizens of the State of Missouri, and own about 8,000 acres of timber lands in Conway and Van Burén counties, Arkansas. On May 28, 1919, the plaintiffs made an agreement with the Groblebe Lumber Company, a Missouri corporation, whereby that company secured an option to cut and remove the timber from said lands at a stipulated price. The Groblebe Lumber Company commenced cutting the timber under the contract, and continued to do so until August, 1921, when it sold its sawmill and planing machinery to the Brown-Moore Lumber Company, an Arkansas corporation. This latter corporation 'appears to have been formed for taking over the holdings of the Groblebe Lumber Company in Arkansas. The Groblebe Lumber Company assigned its right under its timber contract with the plaintiffs to the Brown-Moore Lumber Company, and tbe latter company continued to cut and remove timber from the lands of tbe plaintiffs until tbe latter part of December; 1921. It was then ascertained that tbe Groblebe Lumber Company bad1 not paid tbe plaintiffs for tbe timber cut and removed from tbe lands, and there was due tbe plaintiffs for timber cut and removed approximately $35,000: •
    Tbe Brown-Moore Lumber Company claims to have paid tbe Groblebe Lumber Company for the timber which it cut and removed from tbe lands, but it is not claimed that payment was made by any one to tbe plaintiffs for timber thus cut and removed from their lands. On tbe 14th day of January, 1922, tbe Brown-Moore Lumber Company, the Groblebe Lumber Company, tbe plaintiffs, and a certain banking company entered into a written contract, undertaking to modify tbe terms of the original contract and defining the future rights of all tbe parties in interest. This contract recognized that tbe timber lands in question belonged to tbe plaintiffs, and that they had executed a contract with tbe Groblebe Lumber Company whereby it secured an option to cut and remove tbe timber from said lands by paying a stipulated price therefor. The new contract also recognized that tbe Groblebe Lumber Company bad assigned its rights under tbe original contract to tbe Brown-Moore Lumber Company. Tbe contract 'also recognized that between thirty-four and thirty-five thousand dollars were due tbe plaintiffs for timber which bad been cut and removed from the lands. It was further agreed that a mortgage should1 be executed on certain personal property owned by the Brown-Moore Lumber Company to tbe plaintiffs, and this mortgage was executed and duly filed for record.
    Tbe new contract is so long and involved that it would extend this opinion beyond practical limits to set it out in full. Further reference will be made to it in the opinion. Other facts will be also stated in tbe opinion.
    Tbe chancellor found tbe issues in favor of tbe plaintiffs, and rendered judgment in their favor against tbe defendant for the amount due for timber which had been cut and removed from their lands and for taxes paid by the plaintiffs, which, under the contract, should have been paid by the defendant.
    It was also found that the mortgage was given by the defendant to the plaintiffs to secure this indebtedness, and it was decreed that the mortgage should be foreclosed.
    To reverse that decree the defendant lias duly prosecuted an appeal to this court.

      Gordon & Combs, for appellant.

      Strait & Strait, and S. R. Robertson, for appellee.
   Hart, J.,

(after stating the facts). The proof shows that timber of the value of the amount found to be due by the chancellor was cut and removed from the lands of the plaintiffs. According to the testimony of the plaintiffs, some of this timber was cut by the G-roblebe Lumber Company and some by the Brown-Moore Lumber Company after the latter had acquired the rights of the former to cut and remove the timber upon the payment of. the stipulated price.

The main ground of the defendant for a reversal of the judgment is that, by the terms of the new contract made between all the parties in interest in January, 1922, the plaintiffs and the defendant became partners in the removal of the timber.

All of the plaintiffs denied that there was any intention of forming a partnership between themselves and the defendant for cutting and1 removing the timber from their lands. They testified that the object of the contract entered into in January, 1922, was to modify the rights of all the parties under the former contracts and to obtain security for the amount owed the plaintiffs by the execution of a chattel mortgage from the defendant to the plaintiffs.

Other witnesses corroborated the testimony of the plaintiffs to the effect that no -partnership was formed between the plaintiffs and the defendant for the purpose of cutting and' removing the timber from the lands of the plaintiffs.

T. J. Moore, manager of the Brown-Moore Lumber Company, testified that there was a partnership between the plaintiffs and the defendant; but, on cross-examination, admitted that, if such partnership existed, it was by virtue of the written agreement entered into in January, 1922. As we have already seen, this agreement is very lengthy. It recognizes that timber has been cut from the lands of the plaintiffs in the value of $35,000 under the terms of the original contract. This amount has been arrived at by estimates furnished by the Groblebe Lumber Company when it was cutting the timber and by the Brown-Moore Lumber Company when it succeeded to the rights of Groblebe Lumber Company and began to cut the timber. The new agreement also recites that the Brown-Moore Lumber Company should give a chattel mortgage to secure this indebtedness, and this was done.

The particular clause in the agreement relied upon to constitute the partnership is paragraph No. 14, which reads as follows: “It is further agreed that if, at any time during the life of this contract, it is found that operations cannot be continued on a profitable basis, and that good business judgment would require that same be suspended for a limited length of time, that such suspension may be had for such time as parties hereto may agree in writing, and a suspension for such cause, and -agreed upon as hereinabove specified, shall not work-a forfeiture of this contract on any party thereto.”

It is true that the agreement was written by the attorneys of the plaintiffs, but there is nothing in the language used in this paragraph to show that the parties intended to form a partnership. The agreement nowhere states that the parties intended to form a partnership, nor does it refer to them as -partners. On the other hand, the different parties are spoken of throughout the agreement as separate from each other and as dealing at arm’s length with each other; It was merely a contract by which the defendant succeeded to the rights of the Groblebe Lumber Company in its original contract with the plaintiffs for cutting and removing the timber from their lands at a stipulated price. There was a change in the price to be paid by the defendant for timber to be cut in the future, but this does not indicate that the parties. intended to form a partnership.

As above stated, the tenor of the whole agreement was to modify the terms of the prior contracts between all the parties and to impose new terms for timber to be cut in the future by the defendant from the lands of the plaintiffs, and to secure the plaintiffs by a chattel mortgage executed to them by the defendant. None of the elements of a partnership, as defined in Stone v. Riggs, 163 Ark. 211, are expressed in the contract. Therefore we hold that the language of the contract, when considered in its ordinary acceptation, does not constitute a partnership between the plaintiffs and the defendant for cutting and removing the timber from the lan.ds of the plaintiffs.

Under the terms of the contract, the defendant having succeeded to the rights of the Groblebe Lumber Company and having undertaken to assume its obligations to the plaintiffs, it is liable to the plaintiffs for the amount sued for. No useful purpose could be served by setting out the testimony in detail and reviewing it at length.

.. A careful consideration of the record leads us to the conclusion that the decision of the chancellor was correct, and should be .affirmed.


author: Smith, J.

text:
    Halliday v. Fenton.
    Opinion delivered April 21, 1924.
    1. Appeal and error — conclusiveness op finding op court. — A finding of the circuit court that there was an ' unavoidable casualty, within Crawford & Moses’ Dig., .§ 6290, sub. . 7, authorizing the vacation of a judgment, if supported by substantial evidence, will not be set aside upon appeal.
    2. Judgment — “unavoidable casualty” — evidence.—Evidence of a misunderstanding as to a continuance, resulting in defendant’s absence from trial, held to sustain finding of “unavoidable casualty” within Crawford & Mioses’ Dig., § 6290, • subd. 7, entitling him to have the judgment vacated. .
    3. Judgment — res judicata. — An order overruling defendant’s motion for continuance when the case was called for trial on defendant’s absence on ground of misunderstanding as to a continuance having been granted, not appealed from, was not res judicata, and would not preclude a subsequent proceeding under Crawford & Moses’ Dig., §• 6290, subd. 7, to vacate the judgment for unavoidable casualty on grounds alleged in motion. .
    Appeal from Sevier Circuit Court; B. E. Isb&ll, Judge;
    affirmed.

      Lake & Lake, for appellants.
    1. There was no sufficient showing of unavoidable casualty. Not only did appellees fail to make out a case of unavoidable casualty, but what they rely on as constituting it was in fact gross negligence on their part. 114 Ark. 497; 144 Ark. 533; 152 Ark. 18; 157 Ark. 464.
    2. The plea of res judicata should have been sustained. 114 Ark. 497; 141 Ark. 453.

      Shaver, Shaver & Williams, for appellee.
    1. The trial court heard all the testimony in this case and examined the original records. Its findings must be taken as conclusive. 135 Ark. 445.
    2. The doctrine of res judicata has no application. The distinction between this case, and that relied on by appellant, Turnbull v. Harris, 114 Ark. 497, is clearly demonstrated by the rule stated in Foolhs v. Bilby, 95 Ark. 308.
   Smith, J.

Appellees instituted this action-under the seventh subdivision of § 6290, C. & M. Digest, to set aside, after the expiration of tlie term, a judgment which had been rendered against them in favor of appellants. It appears from the record that appellants were partners in 1920, and1, as such, had entered into a contract with appellees for the construction of a part of a road being built by a road improvement district in Little River County. Appellees, who were also partners, were subcontractors under the original contractor, and appellants sued appellees for a balance alleged to be due them under said contract on the 27th of May, in the circuit court of Sevier County. Personal service was had, and, on the first day of the regular term to which the suit had been brought, an answer was filed denying all the material allegations of the complaint. The case was set for trial on Thursday of the second week, but was not tried. The court was adjourned to the second Monday in October, and the case was tried at this adjourned term and judgment rendered in favor of the plaintiffs, and this proceeding was brought to vacate that judgment. The defendants did not appear at the adjourned term, but one of their attorneys filed a motion for a continuance, which was overruled by the court.

Appellants were plaintiffs in the original suit, and will be hereinafter referred to as such, and appellees will be referred to as defendants.

Upon the hearing of the motion to vacate the judgment, the following testimony was offered: Defendant Fenton testified that, in September preceding the adjourned term of the court, he and his partner went to Louisiana to do some levee work, and they were not advised that the case had been set for trial in October, and that, after the adjournment of the regular term, witness came to De Queen, and was advised by his attorney and the clerk of the court that, the case had been continued for the term and the court had adjourned. He and his attorney examined the entries on the judge’s docket, and found that the case had been continued. He also testified that, after having been told by the clerk that the case had been-, continued, he saw plaintiff Knox at Horatio, and Knox stated to him, at that time,' that he was ready for the trial at the January term of the court, which was the time for the next regular term, to convene, and that he would beat him when the case was tried.

.One of the defendants’ attorneys testified that, he examined .the judge’s docket and saw that the.case had been marked continued, and he therefore made no preparation to try the case before the next, ensuing regular January term of the court/ Another attorney for defendants testified that he inquired of the clerk what action, had been taken about this case, and the clerk advised him it had been continued for the term. The clerk did not deny making these statements, but he did testify that he had no recollection of having made them.

The judge’s docket did not read that the case had been continued for the term, but,there did appear, in the judge’s handwriting, the-word “Cont.,” which the witnesses testified they read as an abbreviation of the word continued."" This notation was on the right-hand side of t¿he docket, where such -notations were usually made. It appears, however, that on the left-hand side of the docket there was a notation-reading: “Thursday of the second week,” and, just under this notation, the words “October 8.” It appears from the.testimony of the clerk that this notation was not very distinct, and the attorneys for defendants testified that they did not observe it when they examined the docket, and, as has been said, this indistinct notation was not on the part of the docket where such notations were usually made by the judge.

There is some uncertainty about the time when the notation on the left of the page was made, and also as to who made it, and the trial judge-testified that “I know I never made that afterwards. If I wrote that at all, I know I did it when it was' set,” and he testified that the case, was, in fact, set for trial at the . adjourned October term.

On behalf of the plaintiffs, testimony was offered as follows: Defendants asked a continuance 'because their attorney who had the case in charge was engaged in making a campaign for the nomination for chancellor, but the request was refused, and defendants were notified that plaintiffs would insist on a trial during that term. That the case was set for trial on the second Thursday, but the court adjourned on the second Wednesday to the second Monday in October, and, at the time of this adjournment, the court announced that the case would be one of the cases tried at the adjourned term, and the case was then set for the second Monday in October, and that neither the defendants nor any one of their attorneys was in attendance upon the court when the order of continuance was announced.

These are the principal facts developed, and the court made an order as prayed, setting aside the judgment rendered at the adjourned term of the court, and plaintiffs have appealed from that order.

The case of Cady v. Pack, 135 Ark. 445, was a proceeding similar to this, and there was conflicting testimony from which the court might have found that there was or that there was not an unavoidable casualty, within the meaning of the statute, entitling defendants to have the judgment vacated. We there said: “Where circuit courts are required by law to pass upon questions of fact, the findings are as conclusive on appeal as the verdicts of juries. * * * The finding of the court is sustained by sufficient substantial evidence, and is conclusive on appeal, under the well-established rule in this court to the effect that, ‘where the law makes the trial judge the trier of facts in cases to which the constitutional right of jury trial does not apply, the same presumption attends his finding as when a jury is waived by the party. ’ (Cases cited).”

In the application of this rule we are unable to say that the finding of the court is not sustained by sufficient substantial testimony to support that action.

Plaintiffs also entered the plea of res judicata, and insist that, upon the'authority of Trumbull v. Harris, 114 Ark. 493, that plea should be sustained. It appears that, when the case was called for trial, ah attorney for defendants appeared and filed a motion for continuance, which set up substantially the facts herein recited, and it is insisted1 that defendants should have appealed from the order of the court overruling the motion for a continuance.' That was done in the Trumbull case, and this court dismissed the appeal, and we held on the second appeal that the matter was res, judicata.

Here there was no testimony offered on the motion for a continuance; no motionvfor a new trial was filed, and there was no appeal. The defendants could not, at the time of the trial, have sustained the allegations of their motion. Their clients, as it was alleged, were aJbsent by unavoidable casualty, and they were- not prepared either to go to trial or to sustain by sufficient testimony the- allegations of the motion for a continuance. Under these circumstances defendants had the right to proceed as they have proceeded,- and the plea of res judicata is not well taken.

The judgment of the court vacating the original judgment, and ordering another trial, is therefore affirmed.


author: Humphreys, J.

text:
    Harnwell v. Miller.
    Opinion delivered March 17, 1924.
    Dismissal and nonsuit — trial day. — Where plaintiff filed a complaint in equity on October 23, 1922, and defendants filed answers on November 20, 1922, on which day the cause was heard in plaintiff’s absence, and the cause was dismissed, such dismissal was • erroneous, under Crawford & Moses’ Digest, § 1288, providing that trial shall be-had after the pleadings have been completed for 90 days.
    Appeal from Lonoke Chancery Court; John E. Martmeau, Chancellor;
    reversed.

      C. P. Harnwell, for appellant.

      Gray é Morris and Chas. A. Walls, for appellees.
   Humphreys, J.

This suit was instituted by appellant against appellees on the 23rd day of October, 1922, in the chancery court of Lonoke County, to set aside a sale of a 320-acre rice farm, made pursuant to a decree of foreclosure in a suit wherein the New England Securities Company was petitioner and' 'appellant and others were respondents.

The sufficiency of the allegations of the bill was not questioned, so it is unnecessary to set out the substance thereof. Suffice it to say that the appellee filed separate answers denying seriatim the allegations thereof. The several answers were filed on November 20,1922, the first day of the regular November term of court after the institution of the suit. On the day the answers were filed, and in the absence of appellant, the cause was heard upon the pleadings and testimony introduced by appellees, which resulted in the dismissal of the bill, from which is this appeal.

Appellant contends for a reversal of the decree on the ground that appellees were not entitled thereto under § 1288 of Crawford & Moses’ Digest. The section referred to is as follows: “Actions prosecuted by equitable proceedings shall stand for trial on any day that the court meets in regular.or adjourned session where the pleadings are, or, by the provisions of §§ 1208 and 1209, shall have been completed for ninety days, but where they have not been so completed, though by the provisions of this act they should have been, the party in default, as to time, shall not be entitled to demand a trial.”

In the instant case the pleading’s were not completed until November 20, 1922, on the day the case was tried. Under the .statute the case did not stand for trial until ninety days after the issues were joined. The purpose in allowing this time was to enable the parties to prepare for trial. The trial and decree were-preniature, and without authority of law.

The decree is therefore reversed, and the cause is remanded for proceedings not inconsistent with this opinion.


author: Wood, J.

text:
    Bettis v. State.
    Opinion delivered April 14, 1924.
    1. Indictment and information — special term of court. — Where defendants were indicted at a special term of court, under Crawford & Moses’ Dig., §§ 2211-2217, the act to prevent mob violence, it was not necessary for the circuit judge to give the notice of the special term required by §§ 2218-2223, Id., relating to the holding of special terms to try persons in jail.
    2. Courts — special term — recitals of order. — An order convening a special term of the circuit court, under Crawford & Moses’ Dig., §§ 221112217, sufficiently showed that the sheriff requested the call for the special term where it recited that the necessity for the special term appeared to the judge by notice from the sheriff.
    3. Courts — special term. — A call for a special term of court, under Crawford & Moses’ Dig., §§ 2211-2217, enacted to prevent mob violence against persons charged, with crime, is not defective in ' failing to designate the persons so charged, or in failing to contain a direction to summon a petit jury.
    4. Criminal law — waiver of arraignment and plea. — Where persons indicted for crime announce that they are ready for trial and go to trial without formal arraignment and plea, they waive their right thereto.
    5. Criminal law — impanel ment of jury. — A recital in the record in a criminal ease that the jury were selected from the regular panel and sworn according to law is sufficient to show that the petit jury were duly impaneled.
    6. Criminal law — copy of indictment — waiver.—Where . persons indicted for crime appeared in court by their attorney announced ready for trial, this was tantamount to a plea of not guilty and a ■ waiver of their right, under Crawford & Moses’ Dig., § 3052, to ■■be served with a copy of the indictment 48 hours before arraign- : ■ ment.. ... . • • ■
    .7. Homicide — verdict designating degree. — A verdict in a prosecution for murder, in the first degree finding defendant guilty and fixing his'punishment at death, was a sufficient, finding of. guilt of murder in the first dégr’ee.
    Appeal from Crawford -Circuit.Court; James Goch-Kfan, Judge;
    affirmed.'

      Scipio A. Jones, for appellants.

      J. 8. TJtley, Attorney General, and John L. Garter, Assistant, for appellee.
   Wood, J.

This is an appeal from a judgment of the Crawford County Circuit Court sentencing the appellants to death. The appellants were jointly indicted, tried and convicted at a special term of the Crawford Circuit Court, which was convened by the judge of that court in pursuance of the following order: “It appearing to the judge of the 15th Judicial (circuit), by notice from Sheriff A. D. Maxey, Dave Partain, prosecuting attorney, and from the representations of W. J. Martin, mayor of Van Burén, and other citizens of Crawford County, that the crime of rape and murder has been committed in Crawford County, and that the passions of the people of said county are thoroughly aroused, and that the sheriff and mayor of Van Burén and other citizens are apprehensive and believe that mob violence will be committed, and, .upon due consideration of said notice from the sheriff and reports and representations of the mayor and other citizens of same condition in said county of Crawford, and finding that said apprehension and belief of the sheriff and other citizens are well founded, and in order to avoid said apprehended mob violence, I therefore, as judge of the said district, call a special term of the Crawford Circuit Court, to convene at one o’clock on the 1st day of January, 1924, to examine into said charges of rape and murder, and the sheriff of Crawford County is ordered and directed to summon from the electors of Crawford County sixteen good and lawful citizens, to serve as grand jurors at said special term of said circuit court, and the clerk of said Crawford Circuit Court is directed to spread this order upon the criminal records of said court and to issue a venire facias for said grand jury to the sheriff of this county. The judge further finds that said special term of the Crawford Circuit Court.will not conflict with any other regular or adjourned court of the 15th Judicial District.

“Given under my hand this 29th day of December, 1923. Jas. Cochran, Judge.”

The court convened on the day and hour appointed, and the record shows that the sheriff returned a list of grand jurors to serve at the special term, and that the grand jury was duly impaneled, and returned into court the indictments upon which the appellants were separately tried and convicted. The indictments were valid.

The appellants moved to quash the indictments on the following grounds: “First, because there was no order made out by the judge and transmitted by him to the clerk of the court, and by him entered on the records of the court, setting out that there was some person confined in jail, who might be tried upon some criminal charge, and naming the party. Second, that said order was not filed and entered of record ten days before the commencement'of the term.” The court overruled the motion.

This presents the first ground of appellants’ motion for a new trial. Section 2211 of Crawford & Moses’ Digest provides: “Whenever the crime of rape, attempt to commit rape, murder, or any other crime calculated to arouse the passions of the people to an extent that the sheriff of the county apprehends and believes that mob violence will be committed within the State of Arkansas, it shall be the duty of the sheriff of the county in which the crime of rape, murder or any other crime herein described shall have been committed, to notify the judge of the circuit or district including such county of the facts in the case, and to request such judge to call a special term of court in order that the person or persons charged with such crime or crimes may be brought to an immediate trial.” Act of May 17, 1909.

Section 2212 provides: “It shall be the duty of such circuit judge, upon receipt of such notice and request from such sheriff, and upon due consideration of the subject, and upon finding that the apprehension and belief of the sheriff are well founded, to call a special term of his court, impanel a special grand jury, and provide all the necessary judicial-machinery for the legal trial of the person or persons charged with the crime or crimes above designated, such trial to begin within ten days from the receipt, by such judge, of such notice from the sheriff, as herein provided.”

The above sections are parts of “An act to prevent mob violence or lynching within the State of Arkansas,” which was approved May 17,1909.

The special term of the court at which the appellants were convicted was called under the authority of the above act, under §§ 2211-2217, inclusive, of Crawford & Moses’ Digest, and not under the authority of §§ 2218-2223, inclusive, which are a part of the Revised Statutes providing for the holding of special terms of court to try persons in jail. The two statutes, as indicated by their titles, were enacted for different purposes, and the proceeding under them is entirely different.

The appellants contend that the order of the court calling the special term does not show any request from the sheriff that the special term be called. In this the appellants are mistaken, for the order begins: “It appearing to the judge of the 15th Judicial (Circuit), by notice from Sheriff A. D. Maxey.” This recital is sufficient to show that the .sheriff requested the call. The statute makes it the duty of the sheriff, if he apprehends violence, to notify the judge of the circuit, and the recital above shows that the circuit judge was notified by the sheriff.

The appellants next contend that they were .not named as those to be tried at such special term. The statute does not require that the person or persons charged with the crime shall be designated by name in the call for a special term. The object of this law is to prevent mob violence and to expedite an inquiry through the court in order to bring to a speedy trial the person or persons charged with crimes of the character mentioned. The person or persons so charged may or may not be in jail. Their names may not be known to the sheriff, and it might be impossible for the sheriff, in notifying the circuit judge of the facts in the case and requesting the special term, to name the person or persons charged with the crime or crimes mentioned. The outstanding purpose of the statute is to have an expeditious inquiry made into the facts, so that persons charged with crime may have an immediate trial, according to law, in order to counteract the mob spirit and to prevent those whose passions are aroused by the heinous character of the offenses from resorting to violence and thus preventing the due course of law. It is not essential to.the jurisdiction of the judge, under this statute, to call a special term, that the sheriff, in his notice and request, should give him the names of the parties charged. Such a requirement might 'involve an impossibility, and thus thwart the wise purpose of the law-to bring on an immediate trial.

Appellants urge that the call was defective because it contained no direction for the summoning of a petit jury. But this is not one of the jurisdictional requirements of the statute. It is' not necessary that the order summoning the petit jury should be embraced in the call for the special term. This is so for the reason that it cannot be known in advance whether the grand jury will return indictments; and to issue a venire facias for a petit jury before indictments are returned, and when they might not be returned at all, would be causing the officials unnecessary labor and the county unnecessary expense. The statute expressly empowers the court to provide all necessary judicial machinery for the legal trial, which includes the summoning of a petit jury. The summoning of such jury becomes necessary only after the indictments have been returned, and the due and proper course is not to have a venire facias for same until the indictments are returned. . •

The appellants next-contend that the record does not show that the appellants were arraigned, nor that they waived arraignment. The record recites: “On this day, this cause coming on to be heard, comes the State of Arkansas by her prosecuting attorney, Dave Partain, and comes the defendant, in person and by his attprney, W. H. Neal, and, both parties announcing ready, for trial, the following jury were selected from the regular panel (naming them), and sworn according to law to try the cause,” etc.

In Hayden v. State, 55 Ark. 342, we held, (quoting syllabus): “Where no prejudice appears upon the record, a conviction of a felony will not be set aside because the defendant was tried without arraignment or plea, if the cause was treated as at issue upon the plea of not guilty.” See cases there cited. By announcing ready for trial and going to trial, just as if there had been a formal arraignment and a plea of not guilty entered, the appellants waived their right to have such formal arraignment and plea entered before the trial commenced. Davidson v. State, 108 Ark. 201, and cases there cited. See also Brewer v. State, 72 Ark. 151.

The appellants contend that the record is silent as to where the petit jurors came from and how this jury was impaneled. The appellants are mistaken in this contention. The record recites that “the following jury were selected from the regular panel (naming twelve persons) and sworn according to law to try the cause.” This recital is sufficient to show that the petit jury was duly impaneled to try the cause. It is wholly immaterial as to what portion of the county they came from.

It' is next contended that the record does not show that the indictments were served forty-eight hours before arraignment, as provided in § 3052 of Crawford & Moses’ Digest. In Lee v. State, 145 Ark. 75-78, we said: “This section is mandatory, and, had appellant objected, he could not have been arraigned until the expiration of forty-eight hours after the delivery of a copy of the indictment to him.” The record in this case shows that “on January 1, 1924, at the hour of 9 o’clock p. m., the prisoners were brought into court and informed of the nature of the indictments against them, and the clerk, by order of the court, delivered to each of them a true copy of the indictment.” The record further shows that motions were filed in open court on the 5th of January, 1924, to quash the indictments. These entries show that four days elapsed between the time when the indictments were served on the appellants and the time when they filed their motions to quash the same. These entries clearly show that the appellants were furnished with a copy of the indictment in compliance with the statute. But, even if the statute had not been complied with, the appellants, as we have seen, appeared in court in person, and, by their .attorney, announced ready for trial. . This was tantamount to a plea of not guilty, and was a waiver of their right under § 3052, supra.

It is argued, in the last place, that the verdict in the case of appellant Buck was so defective that no judgment could be rendered upon it. The verdict in the case of Buck was as follows: “We, the jury, find the defendant guilty and fix his punishment at death.” In the case of Banks v. State, 143 Ark. 156, the form of the verdict was as follows: “We, the jury, find the defendants (naming’ them) guilty as charged in the indictment.” In that ease we held that the form of the verdict was fatally defective because it did not find the degree of murder-. In that case we said: “The statute expressly requires the jury to ascertain the degree in all cases of murder. Its terms are imperative. The court has uniformly construed it to be mandatory, and, as before stated, it has become a fixed part of our criminal jurisprudence.” Verdicts that are silent as to the degree are imperfect and void, because it is impossible for the court to determine from such a verdict what punishment the jury intend to inflict .upon the accused, and therefore impossible for the court to pronounce such a judgment on such a verdict, because the punishment had not been fixed by the jury. But such is not the case at all where the jury returns a verdict of guilty and fixes a punishment which as clearly indicates the degree of murder as if the degree had been expressly named in the verdict.

Here the jury in the Buck case, did not expressly name the degree of murder in its verdict of which it found Buck guilty, but it found him guilty and fixed his punishment at death, thus showing that they found and intended to find him guilty of murder in the first degree, for murder in the second degree is not punished by death.

There are no bills of exceptions in the cases, and the presumption therefore must be indulged that the proof justified the finding of appellants guilty of murder in the first degree, and that the court correctly instructed the jury concerning the punishment attached to this degree of homicide, as well as the other degrees included in the indictment which may have been at issue under the facts.

After a careful consideration of the whole record we find no reversible error in the judgments, and the same are therefore affirmed.


text:
    Sternberg Dredging Company v. Dawson.
    Opinion delivered April 21, 1924.
    1. Drains — alteration op plans — effect on subcontract. — Where a contract with a drainage district authorized the district to change the location of the drain, and the plans and specifications of the district were made part of a subcontract for clearing the right-of-way for the drain, a change of location during the progress of the work did not destroy the subject-matter of the original contract with the district nor relieve the contractor from carrying out the terms of the subcontract.
    2. Contract — questions for jury. — In an action for breach of a contract, held under the evidence that it was a question of fact for the jury whether plaintiff either abandoned the contract or acquiesced in its abandonment by defendant.
    3. Accord and satisfaction — jury question. — In an action for breach of a contract, whether there had been an accord and satisfaction held for the jury.
    4. Trial — instruction submitting issue not raised. — In an action against a drainage contractor for abandoning its subcontract with plaintiff and reletting same to another, where the defendant’s contract with the drainage district provided for changes in location, an instruction which submitted the issue as to defendant’s liability to plaintiff because it could not allow him to complete the drain as it originally planned was erroneous where no such issue was raised by the pleadings, or by the evidence adduced to sustain them.
    Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    reversed.

      J. Brinkerhoff, H. P. Maddox and Gosten S Harrison, for appellants.
    1. Both the plaintiff and the defendants were charged with knowledge of the provision in § 7 of the act, No. 193, Acts 1917, creating the district, and it was clearly their intention to contract with reference thereto. The action of the commissioners, therefore, in abandoning Improvement No. 59 had the effect to destroy the subject-matter of plaintiff’s contract, and the district’s obligations to the defendants, as well as that of the latter to the plaintiff, were at an end. 6 R. C. L. 1005, § 369; 13 R. C. L. 643, § 718; 9 Ark. 463; 124 Ark. 90, 101-102.
    ' 2. The acceptance of 'the check for $1,044.71 transmitted with the letter of April 13, 1921, and the voucher and statement accompanying the same that the check was in full and final settlement, constituted an accord and satisfaction. 148 Ark. 512.
    3. The court’s instruction to the jury, at the plaintiff’s request, with respect .to the uncompleted portion of the original Improvement No. 59, amounted to an amendment introducing a new cause of action, which was not permissible. 75 Ark. 465; 109 Ark. 206; 124 Ark. 206; 132 Ark. 368.

      John W. Scobey and Gautney & Dudley, for appellee.
    1. Appellant states a correct proposition of law, viz: that in contracts wherein the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing excuses the performance ; but, where the contract provides that changes may be made, or where there is no such provision, and the change is merely in .the route or location, this does not excuse performance, and is not a defense to a suit for breach of the contract. 234 Fed. 817, L. R. A., 1917A, 648; 61 Ark. 312.
    2. There was no accord and satisfaction. The mere payment of a debt that is past due does not absolve one from the performance of a contract that is unfinished. There must be a consideration.
   Wood, J.

Drainage District No. 7 of Poinsett County, Arkansas, was created by act 193 of the Acts of the G-eneral Assembly of 1917. The directors of the district entered into a contract with the appellants for the construction of the improvement. The appellants, in turn, on September 14, 1920, entered into a contract with the appellee and one Stevenson, to clear the right-of-way for what is designated as Improvement No. 59 of District No. 7 of Poinsett County. Stevenson later transferred his interest to the appellee. The consideration to be paid the appellee was $75 per acre, payment to be made on monthly estimates of work done, which were to be furnished by the engineers of the district. Appellee was to do the work according to the specifications contained in the contract. The contract (inter alia) contained the following provision: “It is understood and agreed that the plans and specifications of Drainage District No. 7 pertaining to the right-of-way clearing for said levee work shall be made a part of this agreement as if hereto attached and herein recited.”

The original Improvement No. 59, as shown by the plat thereof prepared by the engineer of the district, contemplated the construction of a ditch from the east line of section 30, township 12 north, range 7 east, thence in a southwesterly direction through section 30, township 12 N., E. 7 E., and section 25 to near the center on the south line of section 26, T. 12 N., E. 6 E.; thence in a northwesterly direction through sections 26, 27, 22, 15,16, 9 and 4, in T. 12 N., E. 6 E., to the north boundary of Poinsett County. On the 23rd of November, 1920, appellee agreed to release to the appellants the contract for clearing beginning on the south line of - section 15, T. 12 N., E. 6 E., running north to the county line. The appellee proceeded with the work under his contract until about the 18th of Februarv, 1921, when he received notice from the auriellants to discontinue the work, as the district had ordered it shut down, or changed its location. Thereafter, some time between this date and. the first of the year 1922, the plans of the district were changed so as to provide for the construction of a ditch from the east line of section 30, T. 12 N., R. 7 E., thence in a southwesterly direction to a point near the southwest corner of section 25, T. 12 N., R. 6 E.; thence north on the west section line of section 25 to the northwest corner, and thence northeasterly across section 24 to a point about a quarter of a mile *west of the east line of section-13, T. 12 N., R. 6 E.; thence north on a straight line through sections 13, 12 and 1 to the county line.

Before the last change of plans was adopted, appellee had cleared about 114 acres of the right-of-way, for which he had been paid. After the plans were changed as indicated, appellee, on January 13,1922, received from the appellants a letter in which they inquired of the appellee if he was interested in clearing the right-of-way of Improvement No. 59, and offering to pay him $50 an acre for clearing the right-of-way according to the plans and specifications of District No. 7, and stating that this offer was subject to prior acceptance by other right-of-way contractors who were bidding’ on the work, and also stated that, inasmuch as the appellee was in close proximity to the work and had plenty of teams and force of men, appellants believed that the price would be very attractive to the appellee and enable him to make a reasonable profit on the work. Appellee, in reply to this letter, told the appellants that he was ready to comply with his contract; that he already had a contract with the appellants, and was ready to proceed with it. The appellants, in answer to appellee’s letter, stated that they considered the old contract covering the right-of-way clearing on Improvement 59 null and void; that they had settled with appellee in full for the work which he had done, and were then working on a change of plans, and could not consider the old contract as having any connection with the clearing to be done on the new location of Improvement No. 59, and advising appellee that they had let the work to another party.

Appellee instituted this action against the appellants, and alleged that appellants had abandoned their contract with him and had relet the work of clearing the right-of-way of Improvement No. 59 to other parties; that, at the time appellants abandoned their contract, there were 125 acres of right-of-way still to be cleared, which appellants had relet at the sum of $50 per acre. Appellee set up that he was damaged by reason of such breach of contract on the part of the appellants in the sum of $5,000, for which he prayed judgment.

The appellants answered, denying breach of the contract on their part, and admitted that they had let a new contract for the clearing of approximately 125 acres to other parties at $50 per acre. They admitted that they had entered into the original contract with the appellee as claimed by him, but alleged that the appellants had been notified that there had been a change in the plans of the District No. 7 whereby Improvement No. 59 of such district as originally planned was to be changed to a new location as shown on the new plans and specifications and plat prepared by the engineers of the district ; that the new plans provided for an entirely different amount and character of right-of-way work from that done under the first plan and original contract; that, immediately upon the change of plans by the district, the appellee was notified by the appellants, and they requested him to bid on the work as relocated, and enter into a new contract, all of which appellee did not do, and therefore appellants let the contract for the new work to other parties. The appellants further set up that, iby reason of the change of the plans on the part of the district, appellants’ original contracts with the district and with the appellee for the clearing of the right-of-way were abrogated. Appellants further set up that they had made final settlement with the appellee for all work and labor done by him under their contract, and had paid in full for such work, and that such settlement was in the nature of an accord and satisfaction of all claims of the appellee against the appellants.

The appellants filed a cross-action against the appellee for damages growing out of an alleged wrongful attachment. The appellee denied the allegations of the cross-action. In the attachment proceedings the appellants executed a bond and had the attached property released.

The above are the issues, so far as it is necessary to set them forth. In addition to the facts already stated, which are undisputed, the appellee testified, in regard to the alleged settlement with the appellants, that they paid appellee what they claimed was a legitimate estimate on what he had done. They paid a percentage on what they said was done. There were about ten acres on which nothing had been done. There were approximately four miles difference between the termination of the old right-of-way and the new right-of-way of Improvement No. 59. It would probably be around two miles apart at the point where the right-of-way turns in a northeasterly direction. Appellee was trying for about two months to get appellants to settle for his work done ón Improvement No. 59. They would not settle until they got a settlement with the district. That was in April of 1921. The work done in February was not settled for then. Appellee did not say anything to the appellants in effect that the settlement then had was a completion of the contract, or that he had abandoned his contract. He did not have anything of that kind in his mind, and did not know that such was the contention of the appellants until he got their letter in January, 1922. The check that the appellee received when he made the settlement was proper and correct for what the appellants were due him at that time. The amount of the check was $1,044.71, inclosed in a letter of April 13, 1921, as follows: “We inclose herewith our check for $1,044.71, together with voucher and statement covering right-of-way clearing by you from station 0 to station 236 on Improvement No. 59. This is the final payment on this work'. Kindly acknowledge receipt of the inclosed voucher and return to us by first mail. * * * The statement inclosed covering right-of-wav clearing on Improvement No. 59 is as rendered by our Mr. Russell, who went over this work March 25, this being the exact condition in which he found the right-of-way.” The voucher inclosed showed the amount due the appellee was $1,044.71, and concluded as follows: “Received of Stern-berg Dredging Company $1,044.71 in full settlement of the above.” On the same date the appellants wrote the appellee, stating, “We wish to advise that the district has not yet settled with us for right-of-way clearing on Improvement No. 59 covering the amount of work performed by you. However, we have reasonable assurance that they will do so in the near future.”

Appellee further testified that, if appellants had complied with the optional contract for the release of the right-of-way which the appellee had given on a portion of the original route of Improvement No. 59, it would have left very little to be done under his contract, but that the optional contract on which the release by the appellee was based was never complied with by the appellants, and hence the appellee was not excluding from his claim the three miles of right-of-way which he had agreed to release. At the time the work was suspended by the appellants in 1921, wages had dropped to a point where, if the appellee had been allowed to continue his contract, he would have made money.

One of the witnesses for the appellants testified that he heard a conversation in March between Sternberg and the appellee, in which Sternberg stated that, when he got back to the office, he would send appellee a check for No. 59 and said, “This will be all you will get on Improvement No. 59, which will be a final settlement.” Another witness testified that appellee, in this conversation, asked the engineer to give him the best estimate he could, as it was a final settlement. There was testimony tending to show that the new location of Improvement No. 59 was adopted by the commissioners of the district the first Tuesday in March, 1921.

Sternberg testified for the appellants that, at the time the contract with the appellee for the clearing of the right-of-way was executed, the plans filed by the district showed the correct location of the route. The appellants received notice from the district February 17, 1921, to discontinue the work on Improvement No. 59 and other improvements, and appellants notified the contractors. Witness saw appellee on March 19,1921. He was asking witness for a settlement for the work done on Improvement No. 59. Witness told him that his work had not been checked up, and witness didn’t know what to pay him; that witness would.have his work checked up in a day or two by their right-of-way man, which they did on March 21, 1921. In that conversation witness told the appellee that, when their right-of-way man got up his statement, witness would render appellee a complete and final settlement on the work he had done, and that was agreed upon, and also told appellee if Improvement No. 59 was ever revived or relocated witness would be glad to enter into a contract with appellee. Appellee cleared 114 acres and left uncleared under his contract 9.37 acres. The witness could not say how many , acres were in the original contract. Witness offered to make a new contract with the appellee after improvement had been relocated, 'but he would not bid on it; said he already had a contract for it. From the time the work on Improvement-No. 59 was discontinued until appellants goz appellee’s letter in 1922, he had never expressed any dissatisfaction over the settlement. The appellants did not obtain a new contract from the district after Improvement No. 59 had been relocated. It was not necessary for appellants to do so, because, under the- original contract, the district reserved the right to move the location four miles west, and appellants were receiving the same price for the work as relocated as the contract called for before the relocation.

The appellee, in rebuttal, denied that he had any conversation with Sternberg in which he agreed upon a settlement and surrendered all his rights under his contract with the appellants. He received the letter, check, and statement referred to, and accepted the check and cashed the same. The settlement was such as appellants had been making on estimates for amount of work completed, as the work progressed under the contract.

One witness testified that he had had experience in clearing rights-of-way, and was familiar with Improvement No. 59, and that the right-of-way could be cleared for $40 an acre. The witness never figured up what it was costing appellee, and didn’t know what the cost of clearing was in Poinsett County.

Appellants requested the court to direct a verdict in their favor. The court refused to so instruct the jury, to which ruling appellants duly excepted. The appellee then asked the court to instruct the jury with regard to the uncompleted portion of the original Improvement No. 59. The appellants objected. The court ruled that it would instruct the jury on that theory, to which ruling the appellants excepted.

The court, on its own motion, gave, among others, the following instructions:

“10. Now th'en, gentlemen, the measure of damages, if, under the proof and the instructions, you find for the plaintiff, the measure of his damages will be the difference between the contract price and the cost of doing the clearing at the time he was required by the terms of the contract to do the clearing,- and, in determining the damages, you are to take into consideration only that part of the Improvement 59 as it existed at the time of making the contract, and which remained uncleared at the time of the breach, if any.
“11. Now, gentlemen, there was considerable evidence here at the beginning of this lawsuit about the fact that the commissioners of Drainage District No. 7 had changed the plans of the district and had changed the Improvement No. 59, the one in controversy, from where it was at the time the contract was made to another point, a location, later on. Now, in order that you may not be confused over these issues, you are told now that you will disregard any proof that has been offered in regard to these changes, and you will confine your deliberations solely to the territory as it was embraced in the contract at the time of its execution, and you won’t consider any other proposition at all. The only territory you will consider at all is that that existed and had been laid off as No. 59 at the time this contract was entered into, and the change made by the commissioners afterwards would be a thing you gentlemen will have nothing to do with at all. ’ ’

The appellants duly excepted to the giving of each of these instructions. The jury returned a verdict in favor of the appellee in the sum of $2,800. The appellants, in their motion for a new trial, among others, assigned the following grounds:

“2. The court erred in refusing to direct a verdict for the defendant at the close of all of the evidence.
“3. The court erred in permitting plaintiff to amend, or in considering plaintiff’s complaint amended at the close of the evidence, and submitting the cause to the jury on a theory other than the one upon which the ease was tried.
“10. The court erred in giving, of its own motion, its instruction numbered ten, over the objections of the defendant.
“11. The court erred in giving, of its own motion, its instruction numbered eleven, over the objections of the defendant.”
The court overruled the motion for -a new trial, and entered judgment in favor of the appellee against the appellants in the sum of $'2,800, from which is this appeal.

The appellant’s first assignment of 'error is that the court erred in refusing to direct a verdict in their favor. The appellants contend that, under the law creating Drainage District No. 7 of Poinsett County, Arkansas, and their contract with the appellee, the district had the right to change the plans of Improvement No. 59, and that such change of plans had the effect of abrogating the contract between the appellants and the appellee for the clearing of the right-of-way under the original plans and route of Improvement No. 59; that the change of these plans by the district had the effect to destroy the sulbject-matter of appellee’s contract with the appellants, and that therefore the district’s obligation to the appellants under their contract to clear the right-of-way of Improvement No. 59 was at an end, and likewise the obligation of the appellants to the appellee was at an end.

Section 7 of act 193 of the Acts of 1917, creating Drainage District No. 7 of Poinsett County, of which Improvement No. 59 is a part, provides: “The board may at any time alter the plan of the ditches and drains, but so as not to change essentially the character of the work nor to increase its cost more than twenty-five per oent., but before constructing the ditches, according to the changed plans. The changed plans, with accompanying specifications, showing the width and depth of the ditches as changed, shall be filed with the clerk, and notice of such filing shall be given by publication for one insertion in newspapers issued and having a bona fide circulation in said county.”

The contract of appellants with the district contains this provision: “The board reserves the right to change the location of Improvement No. 59 about four miles west of the location as now planned. ”

Under the law and under the contract of appellants with the district for clearing the right-of-way of Improvement No. 59 according to the original plans and specifications of such improvement, the district had the right to alter those plans so long as such change was in conformity with the statute, but such alterations or change of plans and specifications did not have the effect of destroying the subject-matter of the contract between the appellants and the district and did not relieve the appellants of the obligation of such contract to the district. Nor did such change of plans by the district have the effect of relieving the appellants of their obligation to the appellee for the clearing of such right-of-way under the changed plans. The contract between the appellants and the appellee expressly provided that the “plans and specifications of Drainage District No. 7 of Poinsett County, Arkansas, pertaining to the right-of-way clearing of such levee district, shall he made a part of this agreement as if hereto attached and herein recited.” Now, under appellants’ contract with the district for clearing the right-of-way of Improvement No. 59, the district had the right to change the location of the improvement from the route as then planned to a distance of four miles west. The district therefore had a right to alter the plans in conformity with the law and this provision of the contract and to compel the appellants, under their contract with the district, to do this work, and the change or alteration in the plans did not abrogate the contract of appellants with the district. Likewise, under the contract of the appellants with the appellee for clearing the. right-of-way of Improvement No. 59, the appellee had to clear the right-of-way according to the plans and specifications of the district for the clearing of the right-of-way at the time such contract was executed between the district and the appellants, and if such plans and specifications were altered by the district, then the appellants were bound to clear the right-of-way in accordance with the altered plans, and likewise the appellee was bound, under his subcontract with the appellants, to clear the right-of-way in accordance with these altered plans.

It occurs to us therefore that the appellants are entirely mistaken in their contention here that the alteration of the plans by the district for the clearing of the right-of-way of Improvement No. 59 abrogated their contract with the district and also abrogated their contract with the appellee to clear the right-of-way according to the altered plans. If the appellants, after entering into the contract with the district, had insisted upon their right to perform the contract according to the altered plans and the district had refused to comply with the contract on its part, then the district would have been liable to the appellants for a breach of the contract. Likewise, if appellants had insisted upon the performance of the contract by the appellee according to the altered plans and appellee had refused to so perform the contract, lie would have been liable to appellants for a breach of contract. The obligations of these contracts are mutually binding on the parties. Therefore if the appellants, without the consent of the appellee, when the plans were altered by the district, treated their contract with the appellee as abandoned and entered into contracts with other parties for the clearing of the right-of-way according to the altered plans, by doing so they violated their contract with the appellee, and were liable for such damages as accrued to appellee by reason of such violation.

The contention of the appellants here that the alteration of the plans by the district had the effect of destroying the subject-matter of the contract between the district and the appellants, as well as the contract between the appellants and the appellee, is directly contrary to the position assumed by the appellants at the trial. For Sternberg testified that appellants did not need a new contract with the district, for the reason that the contract with the district provided for an alteration in the plans. ■If appellants’ contract with the district provided for an alteration in the plans, and it did, it is equally true that appellants’ contract with the appellee provided for an alteration in the plans, and if appellants had the right to insist upon the appellee performing his contract under these altered plans, likewise the appellee had the right to insist upon the appellants complying with their contract to allow him to do the work under the altered plans at the contract price. The alteration of the original plans or route for Improvement No. 59, as we have stated, was authorized under the law and under the contract between the appellants and the district, and such alteration did not have the effect of an abandonment of such improvement by the district. On the contrary, it was but carrying out the improvement as the law and contract with the appellants contemplated. Therefore the authorities upon which the appellants rely, to the effect that, in all contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing shall excuse the performance, have no application to the facts of this record. Improvement No. 59 of Drainage District No. 7 of Poinsett County, Arkansas, is still in existence, although the plans of such improvement as first adopted by the district have been altered.

The issue as to whether or not there was an abandonment of the contract on the part of the appellee, or whether or not he acquiesced in an abandonment of the contract ¡by the appellants, was one of fact for the jury, under the evidence, and the court correctly submitted this issue to the jury.

Likewise the issue as to whether or not there had been a complete settlement by the appellants with the appellee and an accord and satisfaction of the claim he now sets up, was one of fact for the jury under the evidence, and was also correctly submitted. The court therefore did not err in refusing to grant appellants’ prayer for a directed verdict.

The court, however, did err in giving instructions Nos. 10 and 11 on its own motion. It occurs to us that these instructions ignored the issues raised by the pleadings, and they were certainly not responsive to the testimony adduced at the trial. If the appellee is entitled to recover at all under his complaint and the testimony adduced, he must recover on the theory set up in his complaint and in the testimony adduced to sustain such theory, and not upon the theory that appellants were liable to him because they would not allow him to make the Improvement No. 59 as it existed at the time the contract was entered into, and were therefore liable to hirri in damages under the contract price for the uncleared right-of-way, according to the original plans. Such an issue is wholly inconsistent with the cause of action set up in appellee’s complaint and the evidence adduced by him to sustain it. 'Besides, under the law and his contract, no damages could be predicated upon an alteration of the original plans of the district, so long as such alterations were according to the provision of § 7 of the act, supra, under which act the district was created.

For the errors indicated the judgment is reversed, and the cause remanded for a new trial.

McCulloch, C. J., and Smith, J., concur.


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    Midland Chemical Laboratories v. School District of North Little Rock.
    Opinion delivered April 21, 1924.
    1. Schools and school districts — powers of members of board.— The duties imposed upon school boards composed of a number of persons cannot be discharged by a part of the members of the board, except at a regular meeting of the board or at a called meeting after notice given.
    2. Schools and school districts — powers of committees. — The rules governing a board of school directors apply to special committees appointed by the board, and preclude part of the members of such committees from discharging the duties of or entering into a contract for the committee.
    3. Schools and school districts — contract—power of members of committee. — One member of a committee of four authorized to purchase school supplies was not authorized to make a binding contract in the absence of the other three members.
    Appeal from Pulaski Circuit Court, Second Division; Richard R. Mann, Judge;
    affirmed.

      Sam M. Wassell, for appellant.
    Plaintiff made out its case when it introduced a copy of the original contract and showed delivery to • the carrier. And it went further and called the secretary of the school board, who testified that he informed plaintiff’s agent that the school board would buy the merchandise, and that he sent the agent to Dr. Hopkins as the one authorized to buy for the board. Without a denial by the defendant either of plaintiff’s allegations or proof, it was erroneous to give a peremptory instruction. 102 Ark. 603. The contract which was the basis of the suit was filed as an exhibit, and, under the statute, was to be taken as genuine unless controverted. There was no denial under oath, no controverting affidavit.' 82 Ark. 105. Hopkins’ authority or lack of it was a matter upon which appellee should have been held to offer proof. It was a defensive plea. 79 Ark. 338.

      Carmichael & Hendricks, for appellee.
   Hart, J.

The Midland1 Chemical Laboratories sued School District of North Little Rock in the municipal court to recover the sum of $186 alleged to be due the plaintiff by the defendant for school supplies. A copy of the order sued on was attached to the complaint and marked “Exhibit A.” It reads as follows:

“Original.
“Order No. 518. 7-29-1919.
‘1 (Subject to acceptance).
Midland Chemical Co.
“District
Ship North Little Rock, of. North Little Rock.
Via frt. I. C. When at once.
Terms: To be paid at Dubuque, Iowa, without interest.
Datings for payments. Due April 1st.
Price per gallon Total amount.
1 bbl. p. i. c. 63 gal...........................,.........$2.00....................................$126.00
1 doz. 18 ink brushes.............................................................................. 60.00
$186.00
“This order is not subject to countermand. All goods sold f. o. b. Dubuque. It is understood and agreed by the purchaser of these goods that the same cannot be returned.
“Salesman, Barfield; purchaser, H. R; Hopkins.”

No written answer was filed by the defendant, but the case was tried before the municipal judge upon the testimony of witnesses. It was adjudged in the municipal court that the plaintiff recover of the defendant the amount sued for.

The defendant appealed to the circuit court, and, after hearing the testimony introduced and offered to be introduced by the plaintiff, the court directed a verdict for the defendant.

From the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

The order which is the basis of the suit was introduced in evidence in the circuit court. It is set out above, and need not be repeated here. In addition to the order, the plaintiff either proved or offered to prove the following facts:

Upon receipt of the order, which was sent in by a salesman, the plaintiff packed and delivered in good condition, to a railroad company, the goods embraced in the order. The railroad company received the shipment and issued its bill of lading therefor. The goods were consigned to the defendant at North Little Nock, Arkansas.

E. O. Manees, one of the directors of the North Little Nock School District, was introduced as a witness by the plaintiff. According to his testimony, Dr. H. N. Hopkins, Dr. Foster, Mr. Barnett and himself constituted the purchasing committee of the school board. The purchasing committee was authorized to buy articles that did not amount to much; but articles that amounted to much they referred to the board, and the board passed on them. When the salesman of the plaintiff approached the witness for the purpose of selling him the supplies in question, he referred him to Dr. H. N. Hopkins. The salesman then went to see Dr. Hopkins, and secured the order in question, which was signed by Dr. Hopkins.

■Counsel for the plaintiff relies for a reversal of the judgment mainly upon the case of Chicago Crayon Co. v. Choate, 102 Ark. 603. There is a material difference in the two cases, however. In that case the plaintiff was engaged in the business of enlarging portraits and selling frames, and the defendant was employed by it to deliver the portraits and frames to the purchasers, and to collect for the same. There was a written contract between the parties, and Choate was to receive as compensation the difference between the invoice price of the frames and the amount for which they were sold, and to make remittances to the company for all amounts collected1.- Pursuant to this contract, he entered into the discharge of his duties, and became indebted to the Chicago Crayon Company upon account for goods sold and delivered to him in pursuance of the contract. An itemized statement of his account, duly verified-by the plaintiff, was attached to the complaint. The affidavit of the plaintiff to the account stated that it was just and correct.

Our statute provides that, in suits upon accounts, the affidavit of the plaintiff that such account is just and correct shall be sufficient to establish it, unless the defendant, under oath, denies the correctness of the account.

The court held that the effect of the statute is to make such verified account, when undenied, prima facie proof of its correctness. The defendant in that case did not deny the correctness of the account under oath, nor did he testify or introduce any witnesses in the case. The court said that the suit was based upon the account, and, under the circumstances, it was conclusively correct. Hence the judgment against the plaintiff was reversed, and the case remanded for a new trial.

In the case at bar no verified account was filed by the plaintiff. It did not claim to have any account with the defendant. A written contract was filed, and the order in question was made a part of the complaint as “Exhibit A.” No affidavit was attached to it. Hence the statute referred to and applied in the case cited above has no application whatever here. The right of the plaintiff to recover depends entirely upon .the validity of the order, which is made the basis of the suit. The evidence offered does show that, in small matters, the purchasing committee had a right to purchase school supplies without referring the matter to the whole board. Assuming that the articles in question belong to the class which the purchasing committee might buy under the authority given it by the whole board, still the plaintiff is not entitled to recover, because it is not shown that the purchasing committee bought the supplies in question.

E. O. Manees, when approached by the salesman of the plaintiff, declined to act, and referred the salesman to Dr. H. B. Hopkins. There were two other members of the purchasing committee besides Manees and Hopkins. It does not appear that Dr. Hopkins acted conjointly with the other members of the committee, or that he even consulted them in making the purchase. In so far as the record discloses, he acted without any authority. This he had no right to do. This court has repeatedly held that duties imposed upon school boards composed of a number of persons cannot be discharged by a part of the members of the board, unless at a regular meeting of the board, or at a called meeting after notice given. It is well settled that no contract can be made except at a regular or called meeting of the board, or at one in which all the members are present. The reason is that duties are cast upon boards or committees composed of a number of persons in order that they may be charged with the efficiency arising from conferring together. School Dist. v. Bennett, 52 Ark. 511, and Dierks Special School Dist. v. Van Dyke, 152 Ark. 27, and cases cited.

The same rule that applies to a board of school directors would apply to special committees appointed by the board.

It follows therefore that, under the evidence disclosed by the record, Dr. Hopkins acted without authority in signing the order which is the basis of this action. This appears to be the case from the undisputed proof.

Therefore the court was right in directing a verdict for the defendant, and the judgment will be affirmed.


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    Mann v. Mann.
    Opinion delivered April 21, 1924.
    1. Trusts — sufficiency of evidence. — In order bo establish a resulting trust, the evidence must be full, clear and convincing.
    2. Husband and wife — conveyance to wife. — Where a husband purchases land and procures the deed to be made to his wife, the presumption is that he intended it as a gift, and that a trust did not result in his favor; but this presumption may be rebutted by evidence of facts, antecedent to or contemporaneous with the conveyance, showing the husband’s intention to have been that the wife should hold as trustee, and not for her own benefit.
    S. Trusts — evidence of resulting trust. — Evidence held to establish that a husband sent his money to his wife to invest for him and not as a gift td her.
    Appeal from "White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      John E. Miller, for appellant.
    1. It is admitted that a resulting trust may be established by parol testimony, but that testimony, or proof, must be full, clear and convincing. The testimony adduced by the appellee falls far short of the requirement of the law. There is nothing to rebut the presumption which the law created when the title to the property ,was taken in the name of the wife. 104 Ark. 42; Kirby’s Digest, § 3666; 101 Ark. 451; 103 Ark. 273; 113 Ark. 207; 127 Ark. 302; 75 Ark. 446; 156 Ark. 403; 158 Ark. 4.
    2. It is manifest from the evidence that appellee did not furnish -all of the money that was used by the wife in the purchase of the lands. The fact that he furnished part of the money was not sufficient to justify the decree. 73 Ark. '281; 89 Ark. 579; 100 Ark. 370; and cases supra.

    3. The act of appellee in giving the money to his wife in the manner he says he did constituted a gift inter vivos. 140 Ark. 430.

      Bnmdidge é Neelly, for appellee.
    1. The presumption in favor of an advancement or gift does not arise where the husband furnishes the money with which his wife buys property, he being absent from home, and thinking the title was taken in his own name, when in fact it was taken in 'the wife’s name; but, in any event, the evidence is amply sufficient to show that in this case a resulting* trust arose in favor of the appellee. 117 Ark. 575; 156 Ark. 407; 38 Okla. 263.
    2. A gift inter vivos is one of intention purely. It is patent here that there was no intention on the part of appellee that all his money and property should belong absolutely to his wife, and that he was to have no interest therein. Having his pay checks sent to his wife for the purpose of paying household expenses and holding the other subject to his demands did not evidence any such intention. 12 R. C. L. 949.
   Humphreys, J.

Appellee instituted this suit in the chancery court of White County against appellant to have the entire title to a “railroad forty” acre tract of land, and a two-thirds undivided interest in the James H. Joyce homestead of one hundred and fifty-one and sixty-one one-hundredths acres and the personal property situated on said land decreed to him. It was alleged in the bill that appellee had furnished the purchase money to his wife with which to buy the lands and personal property, and supposed the deed and title thereto was in himself until after the death of his wife, which occurred on February 28, 1922.

Appellant filed an answer, denying the material allegations of the bill, and, by way of cross-bill, alleging that he had made substantial improvements upon the “railroad forty,” for the value of which he asked judgment in the event the court decreed the land to appellee.

The cause was submitted to the court upon the pleadings and testimony introduced by. the respective parties, which resulted in a decree in favor of appellee for an undivided two-thirds interest in the Joyce tract and the entire “railroad forty,” with a lien on the latter tract in favor of appellant in the sum of $585.50 for improvements made thereon; also a decree in favor of appellee for the household and kitchen furniture originally purchased by himself and wife, and a wagon, two cows and calves, and farming tools at the family residence ; and in favor of appellant for the gray horse and the other personal property at the family residence situated on the Joyce tract of land. The “railroad forty” was ordered sold by a commissioner appointed for that purpose, to satisfy the lien for same, in case the amount adjudged against it should not be paid. It was adjudged that the Joyce tract of land could be divided in kind, and commissioners were appointed for that purpose. An appeal was duly prosecuted to this court from the decree.

Appellee and appellant’s mother, Maggie Joyce, intermarried in 1898. Appellant was about two years old at the time. Maggie Joyce had no money. -She and her two sisters, Beatrice Green and Willie Smith, owned an undivided one-third interest each in the home place of their father, consisting of one hundred fifty-one and sixty-one one-hundredths acres, subject to the dower and homestead rights of their mother. Soon after the marriage, appellee was employed by the L. & N. Railroad. His position required him to remain away from home most of the time, so he boarded his wife and the child with her mother until Mrs. Joyce died, and afterwards with D. M. Green, who had married his wife’s sister, Beatrice, and who continued to reside at the Joyce homestead after their marriage. The Smiths were not satisfied that Green should remain on the property under the existing conditions, so, on November 6, 1899, appellee bought Willie Smith’s undivided one-third interest therein, and the deed was made to his wife, Maggie Mann. Later appellee furnished the money to buy a farm near town, so appellant could go to school. The title to this farm was taken in the name of his wife. They afterwards sold the farm and moved back to the Joyce homestead, with the understanding that either Green or-appellee would buy out the interest of the other. In the spring of 1911 Beatrice Green died, and her undivided one-third interest in the Joyce homestead was sold under an order of court. Appellee agreed to buy it, so D. M. Green procured the order of sale, and, when sold under the order, the conveyance was made to appellee’s wife. On March 31, 1915, appellee purchased the “railroad forty,” and the deed to that land was also conveyed to his wife. After working about fifteen months for the railroad, appellee procured employment from the United States Government, and this employment also prevented him from staying at home much of the time. He testified that he spent about one-third of his time at home, and others testified that he was at home very little of the time. While working away from home he sent his pay-checks directly to his wife, who deposited the proceeds thereof in the People’s Bank in her own name. When appellee needed any money, he would write to his wife, if she was at home, for such money as he needed. If she happened to be away from home, he would write directly to the bank and get the money. With the exception of a year or two, appellant remained upon the farm with his mother and helped cultivate the land and keep up the repairs. He kept the proceeds from the cotton raised upon the land for spending money, but the other products were used for feeding the stock and in supporting the family. 'Such help as was needed was employed and paid for out of the bank account, which was replenished from time to time by the proceeds of appellee’s pay-checjcs. The salary of appellee was their chief source of income. There is practically no dispute in the testimony that the house was originally furnished and that the farms, farm implements, and stock were all purchased with the proceeds of the pay-checks. Appellee’s wife expended a portion of the money for their living and in the management of the farms. Appellee purchased the farm implements and stock from Green at the time he purchased Mrs. Green’s interest therein. The furniture was purchased out of the bank account from time to time. When the lands were bought, appellee negotiated the deals and furnished the money with which to pay for them. Appellee paid little attention to the management of the farm, but, when at home, looked after and controlled the affairs thereon to some extent. The deed from Beatrice Green to appellee’s wife was not introduced in evidence. The other deeds were. These deeds came into possession of appellant after the death of his mother, and were filed for record by him. They had not been recorded before her death. After the institution of this suit, appellant obtained quitclaim deeds to the Joyce tract from the Greens and Smiths. He told Mr. Green that he wanted a quitclaim deed to evidence the fact that his mother had bought the land from her sisters. When appellee’s wife died, he drew out the money in the bank and collected the rent which was due on the farms, without objection on the part of appellant. Appellant explained that he made no objection because he did not want to start any trouble. In December following, however, appellant asserted ownership to the property, whereupon appellee commenced this suit. Appellee testified positively that he had no intention of making his wife a gift of the checks, the proceeds therefrom, or the lands; that he sent the money to her to manage and invest for him; that he made no objection to her taking the title to the lands in her own name, because his purpose was to establish a home for them in their old age and to leave something for appellant when they died. He explained that he was at home so little of his time that he made no objection to the way the deeds were made or the way in which the farm was managed.

Mrs. A. B. Canfield testified that, on one occasion, appellee made the following statement to her: “I want to leave them both in good circumstances. If I go, I want to leave them in good circumstances; If she was to go, then everything would be his. ' For myself, I have a good job, and will always have a living out of the government after I am too old to work. ” '

Appellee testified in rebuttal as follows: “I said to Mrs. Canfield and to every one else that I want a home and some place to come and rest when I get thirty days off from the government. I had a home for the whole ‘push’.”

In aid of the contention for a reversal of the decree, appellant invokes the two following rules of law:

“In order to establish a resulting trust, the evidence rnjust be full, clear, and convincing.” Johnson v. Richardson, 44 Ark. 365; Tillar v. Henry, 75 Ark. 446; Mayers v. Lark, 113 Ark. 207; Doyle v. Davis, 127 Ark. 302; Murchison v. Murchison, 156 Ark. 403.
“"Where a husband purchases land and procures the deed to be made to his wife, the presumption is that he intended it as a gift, and a trust does not result in his favor. This presumption may be rebutted by evidence of facts showing the husband’s intention to have been that his wife should take the land as trustee and not for her own benefit; but such facts must have existed or taken place antecedently or contemporaneously with the conveyance, or so soon thereafter as to form part of the transaction.” Wood v. Wood, 100 Ark. 370; Harbour v. Harbour, 103 Ark. 273; Mayers v. Lark, 113 Ark. 207.

It is argued that the testimony introduced by appellee does not meet the requirements of these rules. "We cannot agree with learned counsel in this contention. After a very careful reading of the testimony, we are convinced that appellee did not intend to make his wife a present of all his earnings or the lands conveyed to her. He testified positively that he sent his money to her to manage and invest because he could not be at home for much of his time, and that his purpose in sending her his pay-checks was to provide a home for them in their old age and to leave something for the boy when they were gone. Appellee is the only one in a position to actually know the intention of himself and wife in purchasing the property in question, and, for this reason, much weight should be attached to his positive evidence. It is apparent, from circumstances cropping out in the testimony, that appellee retained dominion over his hank account, except in so far as it was expended in the support of the family. Whenever it came to buying property, he was consulted, and his permission was obtained to purchase same. It is also apparent that he assumed the management and control of the farm when he happened to be at home. He allowed appellant the proceeds of the cotton for spending money, but exacted that the other products be used to feed the stock and for the support of the family. When his wife died, appellee took charge of the bank account, and collected rents on the farm, amounting to over $200, without objection of appellant. The careless way in which the deeds were handled is a circumstance tending to show that neither appellee nor his wife expected them to be'used as an index of their intentions. One of the deeds was lost, and the others were not recorded until after the death of Mrs. Mann. Another potent circumstance in support of a resulting trust is that it does not comport with reason that one will denude himself of all his earnings during a long period of years without making some provision for old age. We think appellee’s positive testimony to the effect that his purpose was to make provision for himself and wife in their old age and to leave the boy something when they died, rings true to nature.

The presumption arising out of the form of the conveyances, that appellee intended to give the lands to his wife, is rebutted by the testimony under the full, clear, and convincing rule of evidence. Our interpretation of the testimony in its entirety is that appellee sent his money to his wife to manage and invest for him, and thdt the investments she made were in trust for him.

In view of these conclusions, the decree is affirmed.