text:
    Bondurant v. Enis.
    Opinion delivered March 6, 1922.
    Mines and minerals — oil and gas lease — breach op contract.— Where defendant executed an oil and gas lease to plaintiff and delivered it to a bank to be held in escrow until plaintiff’s attorney-should approve the abstract of title, and the title was disapproved because defendant had previously executed an oil and gas lease of same land to another, plaintiff acquired no rights in the lease which justified him in contracting to assign it, and he had no right of action against defendant for failure of title.
    Appeal from Union -Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      Patterson (& Rector, for appellant; George Vaughan, counsel.
    It is said: “Where a person enters into a contract to give a lease and he has neither title to the land -to be leased nor power to execute a lease, the person contracting -with him has a right to, and may, recover substantial damages from him for the breach of the contract.” Thornton, The Law of Oil and Gras, § 333 and authorities cited. Is not the same thing true where the party having title to the land executes a lease thereon which he knows he has no right to execute because of a prior, valid and subsisting lease, where the contract is wholly unexecuted, and there has been no possession on the part of the buyer? 11 Ark. 58; 85 Id. 289; 86 Id. 443; 20 Id. 424; 114 Id. 436.

      McNalley £ Kitchen, for appellee.
    All the essential elements of an escrow' are here present. The agreement between appellant and appellee was not an executory contract of sale, but an escrow for the conveyance of the oil and gas rights in the lands. 16 Cyc. 561, C. C. note 6; 89 Ark. 191.
    Appellant had no rights or interests in the oil and gas rights in the land which lie could sell, assign or otherwise dispose of, until the question of title was fully settled, and the lease delivered to him. 30 Ark. 61; 16 Cyc. 576 “A” and cases cited, note 3; Devlin on Real Estate, § 322; 30 Wis. 644; 16 Cyc. 577, note 5; 7 Colo. App. 360; 16 Cyc. 564.
   Smith, J.

The complaint in this cause contained allegations to the following effect: The defendant Enis being the owner of certain land in Union County, Arkansas, on the 1st day of May, 1920, executed and delivered to one Prank Phillips, trustee, an oil and gas lease thereon. This lease was filed for record, but, in recording it, two errors were made, the land was misdescribed, and the lessor’s signature was omitted from the record. An abstract of title covering the land thus leased would, by reason of the recorder’s error, fail to show the existence of this lease. The defendant Enis knew of this error in the record, and knew an abstract would show a clear title, unincumbered by the lease, although he knew that he had leased the same and had received the money therefor, and that the attempt to lease the same again would be a fraud. Notwithstanding these facts, defendant Enis entered into the following contract with plaintiff Bondurant:

‘ ‘ Escrow Agreement.
‘ ‘ State of Arkansas, County of Union.
“Know all men by these presents: That W. R. Enis, Jr., party of the first part, and R. Bondurant, party of the second part, witnesseth:
“It is agreed and understood that the party of the first part have this day leased to second party the following described lands, situated in Union County, Arkansas, to-wit: .Southwest quarter of northwest quarter of section 24, township 17 south, of range 16 west. Second party has this day placed in escrow in the First National Bank of El Dorado, Arkansas, a draft for the sum of $19,000 dollars, which said draft is attached hereto, said draft and the original lease is attached to this agreement and shall remain in the bank aforesaid, until the first party has turned over to second party an abstract of title covering the above described lands, second party is granted forty-eight hours to examine title. It is agreed and understood that the said bank is to turn over to first party the said draft and second party the said lease upon said second party’s attorney having’ declared the title good and valid.
“This done and signed this, the 14th day of January, A. D. 1921.
“W. R. Enis, Jr., Party of the First part.
“R. R. Bondurant, Party of the Second Part.
“J. D. Slade, Notary Public.”

The abstract called for1 by this contract was delivered to plaintiff’s attorney, who pronounced the title good upon an examination thereof, and the parties were about to close the deal when, by coincidence, plaintiff Bondurant overheard a conversation which caused him to examine the records, which he found had been corrected to properly reflect the prior lease. The facts therefore were that defendant Enis had no title to the oil and gas rights he was proposing to lease, a fact well known to him at all times. The complaint further recites that, in reliance upon his contract set out above and in expectation of receiving a valid and enforceable lease, plaintiff Bondnrant had entered into a contract for the assignment of said lease at a profit of $3,000, for which sum he prayed damage by reason of defendant’s inability to deliver the lease as called for in the contract.

A demurrer was sustained to this complaint, and the plaintiff has appealed.

It is the insistence of plaintiff that, when one enters into a contract for the sale and delivery of an oil and gas lease, on property which he at the time does not own, and knows that he does not own, or on which he has no right to execute a lease, because of a prior valid and subsisting lease thereon, of which he has knowledge, and when the contract is wholly unexecuted, and there has been no possession on the part of the buyer, a cause of action exists against the seller for a breach of contract. In support of this position, plaintiff cites certain of our eases where a recovery of damages was awarded for the breach of executory contracts to convey land. But we think these cases are inapplicable here. Plaintiff never became the owner of the lease upon which he predicates his cause of action. The agreement in relation thereto was an escrow agreement. The parties so expressly designated it; and while it is true that the name given an agreement by the parties is not conclusive of its character, we find nothing in its provisions to indicate that it was misnamed. Upon the contrary, we think the provisions of the agreement establish its character as an escrow agreement. It is there expressly provided that the lease, and the draft attached thereto, shall remain in the bank, the depository, “until the first party has turned over to second party an abstract of title covering the above described lands,” and forty-eight hours were given for the examination of the title. The agreement not only contemplated an examination of the title, but such an examination was made, and before the escrow agreement was discharged the discovery was made that there was a failure of title. The purpose of the escrow agreement was to afford, time to examine the title, and that purpose was accomplished, and the plaintiff was saved from purchasing a worthless lease.

The plaintiff’s contract to assign the lease was prematurely made. He had no title to the lease at the time he contracted to assign it.

In the case of Ober v. Pendleton, 30 Ark. 61, this court, in considering a deed which had been delivered as an escrow, quoted with approval the following statement of the law from Washburn on Beal Property, p. 270: “If the delivery depends upon the performance of a condition, it is an escrow, and, if to be delivered at a particular day, it is not a present conveyance. It has no effect as a deed until the condition has been performed, and no estate passes until the second delivery.” See also Scott v. State Bank, 9 Ark. 36; Chandler v. Chandler, 21 Ark. 95.

Here there was to be no sale until, upon the examination to be made, within the time limited, the title was found to be good and valid, and the bank, as depository or escrow agent, could not, prior to that time, have delivered the lease.

In the case of Daggett v. Daggett, 143 Mass. 516, the Supreme Court of Massachusetts said: “When a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed. The transaction is incomplete. It is not the grantor’s deed until the second delivery. Even if the grantee obtains possession of it before the condition has been performed, yet it is not the grantor’s deed, and he may avoid it by pleading non est factum. The grantee cannot acquire the title by gaining possession of the deed by theft, by fraud, or by the voluntary act of the depositary, but only by performance of the condition. The depositary has no authority to waive such performance, and an unauthorized delivery by him of the deed which lie holds in escrow is entirely ineffectual to pass the title. Wheelwright, v. Wheelwright, 2 Mass. 447, 452; Foster v. Mansfield, 3 Met. 412; O’Kelly v. O’Kelly, 8 Met. 436; Calhoun v. Americcm- Emigrant Co., 93 U. S. 124, 127; Watkins v. Nash, L. R. 20 Eq. 262; 3 Washb. Real Prop. (5th Ed.) 321.”

In the case of Harkreader v. Clayton, 56 Miss. 383, it was said: ‘ ‘ The final and complete act which makes a deed effectual is delivery. "Whilst no specific formalities are necessary, the grantor must consent that the deed shall pass irrevocably from his control, and the grantee must accept it. If, from what occurs between grantor and grantee, a delivery and acceptance may be implied, it is equivalent to an actual delivery. It is the assent, express or implied, to the act, which gives it efficacy. Morgan v. Hazlehurst Lodge, 53 Miss. 674. But, if the grant- or make and seal an instrument as his writing or escrow, find deliver it to a third person, to be by him delivered to the grantee upon some future event, and it be delivered accordingly, it is not the grantee’s deed until the second delivery. If the grantee obtains possession of it before the event happens, the grantor may avoid it on the plea of ‘non est factum-.’ 3 Co. 35b, 36a; Doe v. Knight, 5 Barn. & Cress. 671; Cecil v. Butcher, 2 Jan. & W. 87.”

So here there was no delivery of the léase to the plaintiff. The second delivery required to validate the lease was never made, and therefore the plaintiff acquired no rights in the lease which justified him in contracting to assign it. 4 Kent. 454; Devlin on Real Estate 3 Ed. § 321, 322; Tiffanv on Real Property, 2nd Ed. § 462; 8 R. C. L. Title Deeds, § 594; Elliott on Contracts, § 3919.

The demurrer was therefore properly sustained, and that decree is affirmed. .


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Bogue v. State.
    Opinion delivered March 6, 1922.
    1. Homicide — proof of character of deceased. — Under the plea of self-defense in a prosecution for killing another, it is competent for defendant to show the general reputation of the deceased as a violent, dangerous character, to enable the jury to determine who was the aggressor, but the reputation must be established by proof, not of specific acts of ba<[ conduct, but of the deceased’s general character.
    2. Witnesses — cross-examination — impeachment. — While the State, in cross-examining accused in a homicide case, touching his illicit relations with a woman as a test of his credibility, the State is bound by his answers and cannot contradict him in reference thereto.
    3. Criminal law — admissibility of evidence — objection.—The admission of incompetent evidence is not reversible error where no objection was made to its admission.
    4. Witnesses — cross-examination—impeachment of accused.— Where the State was permitted to cross-examine one accused of murder as to his illicit relationship with a certain woman, and „ to prove without objection that he associated with her, it was prejudicial error to allow the State, over his objection, to prove that the woman was a lewd character.
    Appeal from Sebastian 'Circuit 'Court, Ft. Smith District; Jolm Brissolara, Judge;
    reversed.

      Webb Covington, for appellant.
    The testimony as to the bad character of deceased, his own admissions as to the crimes he had committed, and his record in this 'State, taken together, constituted his general reputation for being a dangerous man, and should have been permitted to go to the jury. Jett v. State, 151 Ark. 439.
    The court erred in admitting the testimony as to alleged relations between appellant and Lorena' Montgomery which he denied, and to further prove that she was a woman of lewd character.
    The evidence does not sustain the verdict.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock. Assistants.

      The general reputation of a person cannot be attacked by proof of particular and specific acts or bad conduct. Jett v. State, ms. op.; 88 Ark. 261; 100 Ark. 561; 38 Ark. 498; 29 Ark. 248; 108 Ark. 124; 148 Ark. 466.
    It was not improper for the State to interrogate appellant, on cross-examination, relative to his immoral conduct, for the purpose of testing his credibility. 104 Ark. 162; 78 Ark. 284. Nor was any error committed in proving the character of the Montgomery woman, as appellant denied associating with her.
   Humphreys, J.

Appellant was convicted of voluntary manslaughter for killing Chris Karrantulias in a rooming house in the city of Ft. Smith, and as punishment therefor was given a sentence of five years in the State penitentiary. From the judgment of conviction an appeal has been duly prosecuted to this court.

Appellant’s plea to the charge was self-defense, and, for the purpose of showing that the deceased was the aggressor in the fatal encounter, proved, over the objection of the State, by Midge Gillim, a woman with whom deceased had lived for a number of years, that deceased frequently boasted in her presence of having killed two men and a boy in Greece, his home country, for which he had served a term of eight years in the penitentiary. After the evidence had gone to the jury, the court ruled that the evidence was inadmissible and withdrew it from their consideration, over the objection of appellant. Appellant contends that the court committed reversible error in withdrawing the evidence.

Under a plea of self-defense it is competent for a defendant to show the general reputation of a deceased slain by him as a violent dangerous character, for the purpose of enabling the jury to determine who was the probable aggressor in the affray. The reputation of the deceased, however, cannot be established by proof of specific acts of bad conduct. The proof must relate to the general character of the deceased. In support of the rule see Jett v. State, 151 Ark. 439, and cases therein cited to the point. No error was committed in excluding the evidence, as it was inadmissible in the first instance.

In the course of the trial the State was permitted to inquire of appellant whether Lorena Montgomery had supported him for some time, and whether he had been associating with her. In order to establish the relationship between appellant and Lorena Montgomery, appellant was asked whether he had cashed checks drawn by Lorena Montgomery, whereupon the production of the checks was demanded by appellant’s counsel. The checks were produced, and, over the objection of appellant, he was required to write figures and words appearing in the checks, as well as his name, so that the writing might be compared with the figures and writing on the checks. The State was also permitted, without objection on the part of appellant, to prove by Andrew Georges that he bad seen appellant and Lorena Montgomery associating together in public places on many occasions. It was improper, either by the introduction of the checks or the direct testimony of Andrew Georges, to contradict appellant’s testimony concerning his association with Lorena Montgomery. It is within the well established rule-to inquire of an accused, on cross-examination, touching his illicit relations as a test of his credibility. Benton v. State, 78 Ark. 284; Rhea v. State, 104 Ark. 162. The State, however, is bound by his answers and cannot contradict him in that regard. No reversible error was committed, however, in the instant case in the admission of the evidence contradicting appellant in reference to bis associations with Lorena Montgomery, because he made no objection and saved no exception to the admission of the evidence. But, after this evidence had been adduced, the State went further, and, over the objection of appellant, showed that Lorena Montgomery was a lewd character. This evidence was collateral and inadmissible. It is argued by the State that no prejudice resulted to appellant on account of the proof of Lorena Montgomery’s bad reputation because he denied any association with her. There was proof tending to show-that he associated with her and that she supported him, which the jury might have believed. Nothing would tend to break down the credibility of a man quicker than to show that he associated with and was supported by a woman of lewd character. This evidence was therefore prejudicial to appellant, and, being collateral in its nature, was erroneously admitted.

There are other assignments of error which we need not consider, as they will not likely recur in a new trial of the cause.

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


text:
    Wallace v. Allen.
    Opinion delivered March 6, 1922.
    1. Highways — compensation of highway commissioners. — Under Crawford & Moses’ Dig., #§§ 5407-8, providing that the commissioners of a highway district shall organize hy selecting one of its members as president and another as secretary, and that the members shall receive compensation not to exceed five dollars per day while engaged in attending board meetings or in business for the district, the Legislature intended this maximum allowance to cover the services to be rendered by one of them as secretary.
    2. Highways — compensation of secretary. — Crawford & Moses’ Dig., § 5406, requiring commissioners of a highway district to take an oath that they will not directly or indirectly become interested in any contract made by the board of commissioners, precludes a member of the board from making a contract with the board to employ him as secretary for a salary of $25 per month.
    3. Highways — compensation op secretary. — A contract between the commissioners of a highway district and one of the commissioners to employ the latter at a salary of $25 per month is void, though the salary was used to pay for services of the secretary’s stenographer for services rendered to the district.
    Appeal from Perry Chancery Court,- Jordan Sellers, Chancellor;
    affirmed.

      G. B. Colvin, for appellant.
    For the statutes pertaining to this case, see C. & M. Digest, §§ 5406, 5407 and 5408. We insist that the rule announced in Rill v. Cruce, 146 Ark. 61, is not applicable here. This is not a case of employing a commissioner to perform work that was never contemplated by law, but a case of reimbursement to a secretary for work and expenses incurred required of him by law. If a bill had been presented by the stenographer for services rendered as stenographer in the amount and for the period of time in question, and had been allowed by the board, there doubtless would have been no objections raised to it. Why split hairs ?

      W. B. Rutherford, for appellees.
    The minutes of the board meeting quoted by the appellant shows a motion proposed and carried to the effect that the “secretary receive a salary of $25 a month, said salary to date from March 1, 1919.” This amounted to a contract which reacted for the two previous months. 6 Craneh (U. S.) 87; 3 Am. & Eng. Enc. of L. (1st Ed.) 825. It was enforceable at law, unless prohibited; but the statute quoted by appellant prohibits it.
   Humphreys, J.

This suit was instituted by the commissioners of Road Improvement District No. 1 of Perry County against appellees in the chancery court of said county for re-examination of a settlement filed by said commissioners in the county court of said county, to which settlement exceptions had been filed by appellee C. A. Williams, a taxpayer in said district. The county court had disallowed the claim of one of the commissioners in the amount of $150 for six months’ salary for services rendered by the commissioner as secretary for the district. The commissioners of said road district, after organizing and electing one of its members as president and another as secretary, passed a resolution allowing the secretary a salary of $25 per month, which formed the basis for the claim in this action. The commissioners of road districts organized under act 338 of the Acts of 1915 are required to file annual settlements, showing collections and disbursements, with proper vouchers attached, which settlements are subject to readjustment by the county court, the adjustment by the county court being subject to reexamination by the chancery court for error, mistake or fraud, at the instance of the commissioners or any taxpayer in the road district. 'Crawford & Moses’ Digest, § 5452. Upon review the chancery court also disallowed the claim of J. T. Chafin, one of the commissioners, for services rendered as secretary of the district, and from the order disallowing the claim an appeal has been duly prosecuted to this court.

The act under which the district was organized requires the board to select one' of its members as secretary (Crawford & Moses’ Digest, § 5407), but no provision is made in the act for compensating any member of the board for services other than an allowance not to exceed five dollars per day to each member of the board while engaged in attending board meetings. Crawford & Moses’ Dig., § 5408. The Legislature must have intended that this maximum allowance of five dollars per day when in attendance on board meetings should cover the services to be rendered by one of them as secretary, for the act required each commissioner to take an oath that he would not become interested, directly or indirectly, in any contract made by the board of commissioners. Crawford & Moses’ Digest, § 5406. The claim for salary in the instant case was necessarily founded in contract, and comes within the prohibition providing that no commissioner shall become interested in any contract made by the board. This interpretation was given to the prohibitory clause referred to in the case of Hill v. Cruce, 146 Ark. 61. In that case the court declared contract for the employment of one of the commissioners by the board to supervise the road construction invalid, irrespective of the fact that the contract was advantageous to the district.

The claimant, J. T. -Chaim, testified in this case that he used his stenographer to perform the services required of him as secretary, and that the salary allowed him was insufficient to pay his stenographer for the services she rendered to the district. This does not bring -the claim within section 5406 of Crawford & Moses’ Digest as construed in Gould v. Toland, 149 Ark. 476. The claim in the instant case was not for necessary expenses incurred in the performance of the duties of a member of the board not embraced in his personal duties in attending meetings of the board. The claim grew out of an illegal contract for the payment of an unauthorized salary, and was properly disallowed.

No error appearing, the decree is affirmed.


text:
    Smith v. Westlake.
    Opinion delivered March 6, 1922.
    Frauds, statute of — promise to pay another’s debt. — Where it was a question whether a verbal promise of a landlord to pay his tenant’s account of supplies was an original undertaking or was a collateral one within the statute of frauds, it was not error to refuse to instruct the jury that if the landlord told the plaintiff, with reference to the tenant’s account, “I’ll see it paid”, this was equivalent to saying, “I’ll pay the account”, and therefore was an original undertaking.
    Appeal from Perry 'Circuit Court; John W. Wade, Judge;
    affirmed.

      Jóhn L. Hill and Carmichael & Brooks, for appellant.
    The court’s oral instruction was misleading and erroneous. There is no dispute about the credit having been extended to Westlake. It is admitted that the charge was made to him on the books and on the bills presented to him. The court erred in refusing to instruct the jury, as requested by appellant, to the effect that if Westlake, referring to Weems’ account, told appellant, “I’ll see it paid,” it was equivalent to saying, “I’ll pay the account” 40 Ark. 430; 12 Id.. 179; 88 Id. 592.

      J. 11. Bowen, for appellees.
    It is a mistake to say tliat there is no dispute about the credit having been extended to Westlake, lie testified, and positively denied that he stood good for this account. Smith,.in bringing suit against "Weems and taking judgment against him for the disputed account, fixed the liability of Weems and precluded recovery from West-lake. 12 Ark. 179; 88 Id. 592.
   Humphreys, J.

Appellant instituted suit In the Perry Circuit Court against appellee J. E. Westlake upon an individual account for $399.05, and appellees jointly upon an account for $502.37 and a note for $150. An answer was filed, admitting the indebtedness upon the note in the sum of $150 with interest, by both appellees, the individual indebtedness for $399.05 on open account by appellee J. E. Westlake, and the individual indebtedness of $502.37 on open account by M. L. Weems, and denying individual or joint liability on open account for $502.37 by appellee J. E. Westlake. Judgment by confession was rendered against both appellees for the amount due upon the note, against J. E. Westlake individually on open account for $399.05, and against M. L. Weems individually on open account for $502.37. A verdict was returned and judgment rendered in favor of appellee J. E. Westlake upon the item of $502.37, which said appellee denied he owed, and which constituted the only issue upon the trial of the cause. From the judgment dismissing appellant’s complaint against J. E. West-lake for the item of $502.37 an appeal has been duly prosecuted to this court.

There was a misjoinder of parties in this action, but no objection has been made on that account Without raising the question of a misjoinder of parties, the cause proceeded to a final determination upon the sole issue of whether appellee J. E. Westlake was liable to appellant upon the item in the open account of $502.37 as an original undertaking. The complaint, in substance, charged that appellant, a merchant, furnished Wrostlake’s share-cropper, M. L. Weems, goods in the amount of $502.37 -which were to be paid for by said Westlake, and which were charged to Westlake upon appellant’s books. Westlake denied this allegation in the complaint, and upon the issue joined the'cause was submitted to the jury upon the evidence adduced and instructions of the court. The evidence was in conflict. That adduced on behalf of the appellant tended to show that Westlake undertook to pay for the goods furnished by appellant to said appellee’s share-cropper, M. L. Weems. The evidence adduced on behalf of appellee tended to show otherwise. The undertaking, if any, was an oral one, and in order to fix liability upon Westlake must have been an original, and not a collateral undertaking. As tending to show that the undertaking was an original one, in the course of his testimony, appellant undertook to detail the specific language used by Westlake in obligating himself to pay for the goods. He testified that on the 31st of March Westlake came to his store and got a list of merchandise for Weems and himself, and was informed (hat it would run over the amount covered by the note which both of them had signed, whereupon Westlake said, “He (referring to Weems) has got a good crop, let him keep on, and I will see that it is all paid. ’ ’ Based upon this particular language, appellant requested, and was refused, over his objection and exception, the following instruction: “You are instructed that if you find that the defendant, J. R. Westlake, told the plaintiff, Smith, with reference to the Weems account, ‘I’ll see it paid,’ that it was equivalent to saying, ‘I’ll pay the account,’ then, and in that event, you will find against the defendants, Westlake and Weems, jointly for the account of $502.37.” The vice in this instruction is that the phrase, “I’ll see it paid,” does not necessarily mean the same as- the phrase, “I’ll pay the account.” Swaboda v. Throgmorton-Bruce Co., 88 Ark. 592. The instruction being erroneous, the court properly refused to give it.

The court instructed the jury at considerable length, and it is impractical, without unduly extending this opinion, to set the instructions out in full as given by the court. We have read them carefully, and think they fairly presented to the jury the issue of whether the undertaking was an original or collateral one, or whether there was any undertaking at all.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Howard v. Howard.
    Opinion delivered March 13, 1922.
    1. Reformation of instruments — sufficiency of evidence. — Proof of a mutual mistake in description of land intended to be conveyed by a deed held to be “clear, unequivocal and decisive.”
    2. Reformation of instruments — voluntary conveyances. — A voluntary conveyance will not be reformed.
    3. Reformation of instruments — voluntary conveyances.- — A deed which recites a nominal consideration of one dollar and love and affection, so far as its recitals are concerned, appears to be a voluntary conveyance, within the rule that said conveyance will not be reformed.
    4. Evidence — farol proof of consideration of deed. — Though a deed attacked as a fraud upon creditors cannot be supported by proof of a consideration different from that expressed in the face of the deed, no rule of evidence is violated, in a suit by the grantee in a deed to reform it, by permitting such grantee, as against the grantor’s heirs, to show that the deed, though apparently a voluntary conveyance, was in fact based on a valuable consideration different from that recited in the deed, such recital not being contractual in its nature.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      Patterson d> Hector and Gaughan & Sifford, for appellant.
    The evidence is not sufficient to establish a resulting trust in D. C. Howard for the benefit of his wife, Prances C. Howard. 11 Ark. 82; 44 Ark. 3-65; 89 Ark. 186; 111 Ark. 49; 75 Ark. 452.
    The deed from D. C. Howard to his wife should be regarded as a voluntary conveyance, notwithstanding the recited consideration of one dollar. .98 N C. 426; 2 Am. S. E. 342; 30 Miss. 91; 64 Am. Dec. 148; 8 Am. Dec. 152. Since the consideration recited is merely nominal and was not in fact paid, and love and affection is recited as the consideration, the court would not be justified in changing the nature of an instrument merely because a consideration is recited. 23 E. C. L. secs. 38-39. pp. 344-4, notes 6 to 18.
    A purely voluntary conveyance will not be reformed. 193 Mo. 421, 91 S. W. 1027; 15 Ark. 519; 80 Ark. 458; 127 Ark. 54.
    The sums paid by Mrs. Howard either for purchase price of land or toward cost of erecting house cannot be treated as a valuable consideration for the execution of the deed to her.

      Marsh db Marlin, and Jones & Head, for appellee.
    "Where a valuable consideration is expressed in a deed, it may not be contradicted where the effect of such contradiction would be to avoid the instrument. 6 Ark. 109; 71 Ark. 494; 141 Ark. 93; 99 Ark. 350; 125 Ark. 441; 145 Ark. 310; 227 U. S. 101.
    . The deed was not voluntary. Any consideration which will support a deed is sufficient for the purpose of reformation. 23 R. C. L. sec. 39; 34 Oyc. 929; 58 Ind. 1; 110 G-a. 278; 108 Ind. 61, 9 N. E. 112. One dollar is sufficient consideration to uphold a deed. 145 Ark. 310.
    A meritorious consideration is sufficient to enlist the aid of a court of equity for reformation. 6 Pom. Eq. Bern. § 679, p. 1144; 23 R. O. L. § 40, p. 346; 34 Cye. 940; 15 Ark. 519; 47 Am. Dec. 505; 47 N. J. Eq. 400; 10 S. E. 308; 39 S. W. 449; 91 S. W. 1027; 119 S. W. 414; 176 N. W. 42.
    The deed was in the -nature of a family settlement, and based on a meritorious consideration, and therefore capable of reformation. 4 Pom. Eo. Jur., § 1376, p. 2725; 2 Pom. Jur., § 781; 75 So. 770; 176 N. W. 43.
    Even though the land be treated as a parol gift to appellee, the fact that Capt. Howard and others regarded tlie land as belonging to Ms wife, and she held possession thereof, is sufficient ground for reforming the deed. 96 Ark. 609.
    Appellant is estopped by reason of his urging and acquiescing in the sale of the land by appellee. 39 Ark. 131; 37 Ark. 47; 10 Ark. 211; 24 Ark. 371; 85 Ark. 163.
    A resulting trust arose by reason of the purchase of the land by appellee and the fact that she furnished the money for the erection of the house. 98 Ark. 452; 40 Ark. 67; 79 Ark. 69.
   McCulloch, C. J.

This is an action instituted originally by Frances C. Howard, one of the appellees, against appellant and the other children and heirs at law of her deceased husband by a former marriage, to reform a deed conveying a certain tract of land in Union County. Appellant and the other defendants were non-residents of the State, and were summoned by warning order, and did not appear at the trial.

The action was begun in the year 1919, and at the September term, 1919, of the Union Chancery Court a final decree was rendered reforming the conveyance in accordance with the prayer of the complaint. Subsequently appellant purchased the interests of the other heirs, and then appeared in the chancery court and presented a petition asking that the decree be set aside and his defense allowed, and that upon a hearing of the cause the complaint be dismissed for want of equity.

The petition to set aside the decree was filed under the statute which provides that where a judgment has been rendered against a defendant constructively summoned and who did not appear, sucli defendant may at any time within two years after the rendition of the judgment appear in open court and move to have the action retried. Crawford & Moses’ Digest, § 6266.

Appellant in his petition set up two defenses, viz; first, that no mistakes had been made in the description of the land; and second, that the conveyance sought to be reformed was a voluntary one, .without valuable consideration, and that under these circumstances a court of equity should not reform it.

Appellee, Mrs. Howard, then filed a supplemental complaint, in which she alleged that, while the deed sought to be reformed recited a consideration of one dollar and love and affection, there were other considerations, and that she had, in fact, furnished the funds with which her husband had originally purchased the land, and that a trust resulted from the transaction, notwithstanding the deed was made to her husband.

• On the final hearing of the cause the petition of appellant was dismissed, and he has appealed to this court.

The effect of the court’s final action was to sustain the original decree declaring the title to the land in controversy to be in the appellee, Mrs. Howard, and, regardless of the form, we must so treat it. If the decree was correct from any viewpoint of the pleadings and evidence, it should be affirmed.

•The deed sought to be reformed was one executed by D. C. Howard, appellant’s father, to the appellee, Mrs. Howard, who was his wife. D. C. Howard was married three times, and appellant and his brothers and sisters were the children of his second wife, who was the owner of a tract of land in Union County containing 160 acres. Appellant and the other children inherited this land on the death of their mother, but D. C. Howard continued to occupy it after his wife’s death. About the year 1890, D. C. Howard and Frances C. Howard, appellee, intermarried, and in the year 1895 the tract of land in controversy, containing 20 acres and ■ described as the W14 of E% of SE14 of section 12, township 18 south, range 16 west, was purchased from one Hinson. This tract of land was unimproved and of small value, the price paid being $25 when Hinson conveyed it to D. C. Howard. It was adjoining the tract of land which appellant and the other children had inherited from their mother, and which they had, after their mother’s death, conveyed to their father. The tract in controversy was purchased from Hinson by Howard for the purpose of building his residence- on it, and immediately after the purchase a dwelling house, costing $1,000 to $1,200, was erected. D. C. Howard and his last wif.e, appellee, occupied this house until Howard’s death in the year 1917.

In September, 1912, the deed sought to be reformed in this action was executed by D. C. Howard to his wife, the appellee. It conveyed another tract of land containing 40 acres not involved in this controversy, and also a 20-acre tract described as the E% of the Ey2 of the SE]4 of said section 12. It is alleged in the pleadings and in appellee’s testimony that there was a mistake in the description and that it was intended to convey the W14 of the E% of the SE% of section 12, the tract purchased from Hinson.

About the time of the execution of this deed J>. C. Howard made his will, in which he devised to appellant and the other children of his former wife, the tract of 160 acres, which the children had conveyed to him after the death of their mother.

Subsequent to the first decree, Mrs. Howard sold and conveyed the land in controversy to the other appellees, who afterwards were joined as parties to this action.

Mrs. Howard testified that when she married D. C. Howard she was a widow and had $100 in cash and- a lot of cattle, which she turned over to her husband, and that the cattle were sold by her husband and the proceeds used. She testified that she furnished the sum of $25 with which the Hinson land was purchased, and that she also paid for the building of the house. She testified that her husband’s deed to her was executed pursuant to a family settlement, in which it was agreed, that he should convey the 20 acres of land in controversy to her as well as the other 40 not in controversy, and that the 160-acre tract which he obtained from his children should be devised to them free of any claim of her own for dower or otherwise.

She testified that when the deed was made it was the intention of the parties that it should describe the land which had been purchased from Hinson, but that she did not ascertain until after her husband’s death that a mistake had been made in the description.

Mr. Tatum, a justice of the peace, who prepared the deed, testified that he did so on Howard’s request and at the latter’s home on this particular land in controversy, and that Howard handed him the Hinson deed with instructions to copy the description from that deed, and that he intended to do so but made a mistake in copying the description.

The man who built the house on the land was a witness in the case, and testified that Mrs. Howard, the appellee, paid him $25 for building the house. There was other proof showing that the house cost about $1,000, and Howard himself had furnished the material that went into it.

Proof of the mistake in the deed of D. C. Howard to his wife, the appellee, and that it was intended to convey the tract purchased from Hinson, is ‘ ‘ clear, unequivocal and decisive,” as required by the rule so often announced by this court. McGuigan v. Gaines, 71 Ark. 614, and later cases. If therefore the deed of conveyance was of such a character as a court of equity should reform -for the purpose of correcting mutual mistakes therein, the proof is abundant to justify the decree of reformation.

The contention of appellant is, however, that the deed was a voluntary conveyance and executed without valuable consideration, and they invoke the rule announced in the decision o-f this court that such a conveyance will not be reformed. Dyer v. Bean, 15 Ark. 519; Smith v. Smith, 80 Ark. 458; Jackson v. Wolfe, 127 Ark. 54.

Counsel on each side debate the question whether or not a deed of conveyance reciting a consideration merely of one dollar paid, and love and affection, is a voluntary conveyance for a nominal consideration, or whether it constitutes a valuable consideration. There seems to be some contrariety of opinion among the authorities cited, but, regardless of the conflict, our court has heretofore taken a position on the question and held that such recital merely constitutes a nominal' consideration, and that a conveyance based thereon must be treated as voluntary. Carmack v. Lovett, 44 Ark. 180. Both sides cite the recent case of Lawrence v. Mahoney, 145 Ark. 310, as supporting their respective contentions. We held in that case that a gas and oil lease reciting a consideration of one dollar for a lease in an unexplored and unimproved field was based upon more than a nominal consideration which was sufficient to support the contract. The clear implication from that opinion is that the recital of a consideration of one dollar in an ordinary lease of land for the purpose of occupation and cultivation, or in a deed of conveyance of land, should be treated as a nominal consideration.

Our conclusion, therefore, is that, so far as the recitals of the deed are concerned, it appears to have been based upon a nominal consideration and was a voluntary one. But the testimony in this case shows by a clear preponderance that there were other considerations, of a valuable nature, for this conveyance, which were not recited in the deed. According to the preponderance of the evidence, Mrs. Howard paid the price for the purchase of the land from Hinson, and it was the intention of herself and her husband that the conveyance should be to her, and when her husband discovered, years later, that the Hinson conveyance was to himself, he sent for Tatum and caused the deed to be prepared in order to convey the title to his wife. The testimony is sufficient to show that Mrs. Howard paid for the building of the house on the land, and that her husband made this conveyance in consideration of these facts.

Oral testimony is, we think, admissible to prove the real consideration so as to show that it was not a voluntary conveyance. This court has decided, it is true, that where a deed is attacked as a fraud against creditors it cannot be supported by showing a different consideration from that expressed in the face of the deed (Galbreath, Stewart & Co. v. Cook, 30 Ark. 417; Carmack v. Lovett, supra,) but that rule is not applicable to the present case. No attack is made on the validity of the conveyance itself, and the question is whether or not the party asking reformation is a purchaser for a valuable consideration so as to justify a reformation. We think that in such a case no rule of evidence is violated by permitting proof of other valuable considerations different from the nominal consideration recited in the deed, that recital not being contractual in its nature. Magill Lumber Co. v. Lane-White Lbr. Co., 90 Ark. 426; Carwell v. Dennis, 101 Ark. 603; Sims v. Best, 140 Ark. 384.

A bare preponderance of the evidence is sufficient to prove such further consideration, for it is not a contradiction of the terms of the written instrument. Magill Lbr. Co. v. Lane-White Lbr. Co., supra.

Our conclusion is that the proof is not sufficient to meet the “clear, unequivocal and decisive” rule of evidence required to establish a resulting trust, but that, according to the preponderance of the evidence, there were other considerations for the deed which made it more than a nominal consideration, so that the grantee was in the position to ask a court of equity for a reformation of the deed. The proof concerning the mutual mistake is, as before stated, sufficiently “clear, unequivocal and decisive” to justify the decree of reformation.

The decree is therefore affirmed.


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    Patterson v. Ogles.
    Opinion delivered March 13, 1922.
    1. Mortgages — future advances. — A mortgage to secure future advances, even to the time of the foreclosure of the mortgage is valid; but, if such purpose is intended to be accomplished, that fact must clearly appear from the instrument, and such purpose will not he presumed where the instrument does not contain such a general description of the indebtedness secured as to put one who examines it on notice that this was its purpose, in order that such person may pursue the inquiry which such knowledge would suggest.
    2. Mortgages — future advances. — Under a mortgage to secure a certain note and “any and all other and further indebtedness which the grantors or either of them may contract to pay to the grantee for future loans, advances or acceptances, made during the existence of this mortgage, and any renewal or renewals of note or notes for said present or future indebtedness; this mortgage to mature and be enforceable at the maturity of said note or subsequent notes, or renewal note or notes; held that the mortgage limits the secured debt to advances made up to the maturity of the note or any renewal thereof.
    Appeal from Drew Chancery Court; E. O. Hammock, Chancellor;
    reversed.

      Henry & Harris, for appellants.
    The mortgage was mature and enforceable at the maturity of the note and did not contemplate advances made after that time. Ill Ark. 362; 50 Ark. 256; 66 Ark. 393; 122 Ark. 457.
    A mortgage to secure future.advances is valid if that fast clearly appears from the instrument. 46 Ark. 70.
    Exhibits in a chancery suit, which are the foundation of the action, will control the averments of the complaint. 104 Ark. 459.
    Payment or tender of payment at the time mentioned in the mortgage discharges the mortgage lien. 33 Ark. 340; 2 Jones on Mortgages, §§ 891-892; 34 N. J. 496.

      J. W. Kimbro, for appellee.
    The indebtedness secured by the mortgage was not limited to advances made prior to January 1, 1920. Jones on'Chattel Mortgages, §§ 94, 95; 1 Jones on Mortgages, § 367; 22 N. Y. 38U; loO Mass. 112.
    50 Ark. 256 and 66 Ark. 393, are not in point; there was no offer to furnish advances beyond a certain date.
    The validity of the mortgage was not impaired by the fact that it does not show on its face the real character of the transaction. 87 Ala. 409; 6 So. 48; 69 Ala. 58; 13 111. 254; 39 La. Ann. 712; 23 B. I. 412; 50 Atl. i852.
    The tender of a debt secured by mortgage does not release the lien of the mortgage. 30 Ark. 505; 38 Ark. 329; 83 Ark. 484.
   McCulloch, C. J.

E. J. Patterson, one of the appellants, owned a certain tract of land in Drew County, and on May 13, 1919, he executed a mortgage (his wife, one of the appellants, joining therein) to appellee Ogles to secure the payment of a promissory note and also to secure the payment of future loans and advances. The clause in the mortgage describing the debts to be secured reads as follows:

“But the conditions of this mortgage are that, whereas, said E. J. Patterson is indebted to said grantee in the sum of seven hundred seven and 88/100 dollars, evidenced by note dated May 13,1919, bearing interest at the rate of ten per cent, per annum from.May 13, 1919, until paid, and due January 1, 1920, this mortgage being given to secure the payment of not only this note but also any and all other and further indebtedness which grantors, or either of them, may contract to pay to the grantee for future loans, advances or acceptances, made during the existence of this mortgage, and any renewal or renewals of note or notes for said present or future indebtedness; this mortgage to mature and be enforceable at the maturity of said note, or subsequent note or renewal note or notes, and as hereinafter set forth.”

Appellee made advances to appellant during the year 1919, and the account for such advances was paid, and there was a small payment on the note. Further advances were made during the year 1921.

This is an action instituted in the chancery court of Drew County to foreclose the mortgage, and the controversy is confined to the question whether or not the lien of the mortgage covers the account for advances made during the year 1921 subsequent to the maturity of the note. Appellant offered to pay the balance due on the note in discharge of the mortgage lien, but refused to pay the debt for supplies furnished during the year 1921. The court rendered a decree declaring a lien in favor of appellee for the amount of the debt for supplies furnished during the year 1921, as well as for the balance due on the note.

The latest expression of this court on this subject is found in the recent case of Word v. Cole, 122 Ark. 457, where we said:

“The effect of our cases is that a mortgage to secure future advances, even to the time of the foreclosure of the instrument, is valid; but if such purpose is intended to be accomplished, that fact must clearly appear from the instrument, and such purpose will not be presumed where the instrument does not contain a general description of the indebtedness secured, so as to put one who examines it on notice that this was its purpose, in order that such person may pursue the inquiry which such knowledge would suggest.”

Each case on this subject calls for an interpretation of the language of the mortgage so as to determine whether the description falls within the rule announced above.

In Fort v. Black, 50 Ark. 256, the mortgage sought to be foreclosed was given to secure a note of $200, payable October 1, 1883, and “supplies furnished and to be furnished.” The court decided that the mortgage only secured advances made on or before the maturity of the note. In the case of Moore v. Terry, 66 Ark. 393, the language of the mortgage was similar, and the same result was reached by this court. In Howell v. Walker, 111 Ark. 362, there was involved the construction of a mortgage given to secure a note, and there was also a recital that the mortgagee “undertakes and is to furnish the said party of the first part during the year 1909 with supplies, provisions and such other articles of goods, wares and merchandise and moneys as they may see proper', and for all indebtedness that may accrue and remain due and unpaid after the said year 1909 until final settlement of said account, to be evidenced by the books of the party of the second part.” We decided in that case that the lien only covered the account for supplies furnished during the year 1909, and did not cover an account for supplies furnished up to the date of the foreclosure.

The mortgage in the present case contains the words, “made during the existence of this mortgage,” and if there were nothing else in the language used restricting this term we would readily hold that it embraced advances made at any time before foreclosure, but other language in that connection shows that the term was not used in that sense. The language does not stop with the term “made during the existence of this mortgage,” but adds the words, ‘ ‘ and any renewal or renewals of note or •notes for said present or future indebtedness,” and then follows the further statement, “this mortgage to mature and be enforceable at the maturity of said note, or subsequent note or renewal note or notes.”

Now, when this language is all considered together, it is clear that the term “existence of this mortgage” meant up to the date of the maturity of the note or any renewal'. That is evidently the period embracing the existence of the mortgage within the meaning of the term as used. If this language be construed to create a lien for all the advances made up to the foreclosure, then everything that follows the words “made during the existence of this mortgage” is surplusage and carries with it no force or meaning whatever. So, if we give the last part of the language used any meaning at all, it necessarily limits the secured debt to advances made up to the maturity of the note or any renewal thereof.

Our conclusion is that the chancellor erred in declaring a lien for the advances made after the maturity of the note.

The decree is reversed, and the cause remanded with directions to enter a decree in favor of appellee declaring a lien only for the amount of the balance due on the note, with interest.


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    Butts v. Butts.
    Opinion delivered March 13, 1922.
    1. Divorce — right of appeal as affected by remarriage. — Under Crawford & Moses’ Dig., § 2168, providing that appellee may move to dismiss an appeal where the appellant’s right of further prosecuting the same has ceased, an appeal from a decree of divorce is subject to dismissal on the appellant’s remarriage, for the reason that such marriage constitutes an acceptance of the benefit of the decree.
    2. Divorce — jurisdiction—res judicata. — Where the chancery court acquired jurisdiction in a divorce suit to . determine whether there had been a prior adjudication in another State, which was conclusive of the rights of the parties, an error in determining that question could be corrected only by appeal.
    3. Divorce — constructive service. — Under the Louisiana law, a decree for absolute divorce cannot be rendered on constructive service of process.
    4. Divorce — effect of decree of separation. — A decree of separation does not affect the status of the parties as to the continued existence of the marriage ties.
    Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor;
    appeal dismissed.

      McCloskey & Benedict and John T. Castle, for appellant.
    1. As to the New Orleans decree, full faith and credit is that degree of force and effect to which it is entitled in Louisiana. 198 IT. S. 317: 201 IT. S. 562. Perhaps, if plaintiff’s theorv that defendant deserted him here, and went to ‘md established a domicile in Louisiana for the purpose of securing a divorce, is correct, the docree of that State would not be entitled to full faith and credit; but appellant insists to the contrary. If her statements are correct, the Louisiana decree is entitled to full faith and credit, under the Federal Constitution. Revised Civil Code, La., § 145; Marr’s Rev. Stat. La., 1915, § 1008; 9 Me. 140, 23 Ann. Dec. 549; 119 la., 538, 93 N. W. 586; 130 111. 268, 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Rep. 319; 68 Mich. 454; 36 N. W. 218; 13 Am. St. Rep. 355; 41 Ore. 239; 25 Ark. 625; C. & M. Digest, § 1157;'90 Ark. 44; 162 111. 589; 53 N. J. Eq. 678; 108 N. Y. 415.
    2. The court should have granted appellant time to take depositions. The court did not fix a time, as permitted by the statute, C. & M. Dig., § 4206a, nor did the plaintiff proceed to take any depositions, nor give notice that he would not take depositions, until about nine days before the trial, — too short a period of time to take depositions in New Orleans, La., to be used in court at Helena, Ark. C. & M. Dig. § 4219. The refusal to grant the time was an abuse of discretion. 22 Pac. 890; 110 Ark. 182; 74 Ark. 172.

      John I. Moore, and John I. Moore, Jr., for appellee.
    1. This is an action for divorce, not for separation. The Louisiana decree is not available on a plea of res judicata. Moreover, even in actions for divorce on constructive service the full faith and credit provision of the Federal Constitution does not apply. 46 So. 921. Louisiana statutes authorizing suit for separation by substituted process do not apply to a suit for divorce. 114 La. 950; 38 So. 690. The Louisiana decree, therefore, could not be interposed as a defense in this action.
    A decree of separation from bed and board rendered against a non-resident, non-appearing defendant, not served with process within the State, is not enforceable in the State of the defendant’s domicile. 4 A. L. R. 852. 'See also 9 R. C. L. 400 et seq; 15 Id. 932; 76 S. E. 855; 78 Id. 1079; 204 U. S. 8; 205 U. S. 241.

      2. jSÍ o error in refusing the continuance. C. & M. Digest, §§ 4206a, 4209, 4219.
    3. The appeal should be dismissed. The appellant, by marrying again, after taking the appeal, thereby accepted the benefits, and admitted the legality of the decree appealed from, and lost her right of appeal. 109 Ark. 548; 9 R. C. L. 467.
   McCulloch, C. J.

Appellee instituted this action in the chancery court of Phillips County against the appellant, his wife, to secure a divorce, and this appeal is prosecuted from a decree granting the divorce.

The ground stated in the complaint is desertion, and it is alleged in the complaint that appellee was a resident of the State and of Phillips County for more than a year before the commencement of the action. The action was begun on constructive service, and appellant appeared by counsel and filed her answer, in which she denied the allegations of the complaint with respect to desertion, and she also pleaded, in bar of appellee’s right to sue for' a divorce, a judgment of the civil district court of the Parish of Orleans, in the State of Louisiana, in which the court had adjudged, on the complaint of appellant, a divorce from bed and board.

Appellant’s answer was filed in the action on September 23, 1920, and the cause was heard by the court and a final decree was rendered on July 25, 1921. Nine days before the court convened, appellee’s attorney notified appellant’s attorney, in writing, that when the court convened appellee would ask for a hearing of the cause on oral testimony. Appellant appeared by her attorneys on the day of the trial and moved for a continuance to enable her to take depositions in the State of Louisiana, but the court overruled the motion, and the cause was heard upon the testimony adduced by appellee.

The evidence thus adduced, which has been preserved in the record, is sufficient to justify the court in finding that appellee was a resident of Phillips County, and had resided there continuously for many years, and that the alleged grounds for divorce were established.

After the transcript was lodged in this court, appellee filed a motion to dismiss the appeal on the ground that appellant had married again in the State of Louisiana, after the réndition of the decree appealed from. The motion was filed pursuant to the statute in regard to appeals to this court, which provides that where “the appellant’s right of further prosecuting the same has ceased, the appellee, in lieu of pleading, may move the court to dismiss the appeal on writ of error, the grounds of which motion shall be stated in writing, signed by the appellee or his counsel, and, if not appearing on the face of the record, or by a writing purporting to have been signed by the appellant and filed, shall be verified by affidavit. ’ ’ Crawford & Moses ’ Digest, § 2168.

The motion was accompanied by proof of the marriage of appellant in the State of Louisiana since the rendition of the decree appealed from. The motion was submitted at the time of the submission of the case on the merits.

It seems to be well settled by the authorities that an appeal from a decree of divorce cannot be prosecuted after the remarriage of the appellant, for the reason that such marriage constitutes an acceptance of the benefit of the decree and necessarily admits its legality and correctness. 9 R. C. L. 467; 7 Stand. Enc. of Procedure, 811.

Counsel for appellant attempts to escape the application of this well-established rule of law on the ground that the prior decree of the Louisiana court granting a divorce a mensa et thoro was a bar to the right to prosecute the suit for divorce in this State, and that it defeated the jurisdiction of the Phillips Chancery Court. The weakness of this contention, however, lies in the fact that jurisdiction of the court to sustain appellee’s cause of action depends upon the allegations of the complaint. The court thereby acquired ■ jurisdiction to determine whether or not appellee was a resident of Phillips County, and whether there was a prior' adjudication in another State which was conclusive of the rights of the parties.

If the court erred in refusing to grant a postponement of the trial, or in deciding that appellee had established a cause of action which had not been barred by any other decision, the error could only be corrected by appeal, and appellant has, by remarriage, forfeited her right to appeal to this court for the correction of the alleged error.

The Louisiana decree was, as before stated, only for separation, and it could not have been for absolute divorce under the statutes of that State, for the Supreme Court of Louisiana has decided that a decree for absolute divorce cannot be rendered on constructive service of process. Connella v. Connella, 114 La. 950.

The decree of separation did not affect the status of the parties as to the continued existence of the marriage ties. Pettis v. Pettis, 91 Conn. 608, 4 A. L. R. 852.

But if the court erred in determining the effect of the former adjudication, it was, as before stated, an error which could only be corrected by appeal.

The motion to dismiss is therefore sustained, and the appeal is dismissed on the ground that appellant has forfeited her right to prosecute it.


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    McKinney v. First National Bank of Batesville.
    Opinion delivered March 13, 1922.
    1. Counties — interest-bearing evidences of indebtedness.— Under Const, art. 16, § 1, providing that no county, city or municipality shall issue any interest-bearing evidences of indebtedness, an attempt on the part of the county court to provide for the payment of interest is void.
    2. Counties — interest-bearing warrants. — County warrants stipulating that they shall bear interest, if issued upon proper allowances by the county court, are not void except to the extent of the stipulation to pay interest.

      3. Counties — order calling in warrants — reissuance.—Where county warrants are presented in pursuance of an order of the county court calling them in for cancellation and reissuance, it is the duty of the county court to order a reissuance thereof to the extent that they are valid and legal claims against the county.
    4. Appeal and error — absence op bill of exceptions — presumption. — In the absence of a bill of exceptions it will be presumed that the evidence sustained the court’s findings.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      I. J. Matheny and W. M. Thompson, for appellants.
    The county court was legally in session. The order was advertised as required by law. C. & M. Digest, § 1994. The sheriff’s return was full and complete. 134 Ark. 100.
    The presentation of the scrip was a waiver of the insufficiency of the notice. 33 Ark. 740.
    The warrants were issued in violation of law. Const. 1874; 36 Ark. 89; 130 Ark. 116.
    The contracts entered into between the county judge and the banks were void. Constitution 1874, art. 16, § 1; 29 Ark. 386; 32 Ark. 619; 47 Ark. 378; 77 Ark. 580; 91 Ark. 61; Bishop on Contracts, § 458.
    A contract to perform an unlawful act cannot be enforced. 95 Ark. 552.

      C. F. Cole, Ernest Neill and Samuel M. Casey, for. appellees.
    The failure of appellants to bring the oral testimony into the record calls for an affirmance. 38 Ark. 477; 80 Ark. 579; 80 Ark. 206; 92 Ark. 622; 117 Ark. 221.
    The certificate of the clerk was in conflict with the judgment. 129 Ark. 193.
    The warrants were valid claims against the county and should have been reissued. 118 Ark. 524; 120 Ark 476; 96 Ark. 105.

      The indorsement on tlie 'warrants providing for the payment of interest did not render them void. 116 Ark. 377.
   McCulloch, C. J.

The price of the county warrants of Independence County became depreciated, or it was thought that they were about to become depreciated, and on November 1, 1917, the county court entered an order reciting that certain banks in the city of Batesville had agreed to cash the warrants thereafter issued so as to keep the price of warrants at par, and that thereafter the county would pay interest on the warrants semi-annually at the rate of 8 per cent, per annum, payments to be made on the first Monday in May and November if the holders of the warrants should file with the county clerk a list on which interest was claimed. The order of the county court further provided that there should be endorsed on each warrant thereafter issued a stipulation in the following form:

“The holder of this warrant is entitled to the benefits accruing under an order made by the county court on the 1st day of November, 1917.”

It appears that appellees, three banking institutions in the city of Batesville, are the holders of warrants aggregating the face value of the sum of $61,771.33, issued by the county court after November 1, 1917, and bearing the notation set forth above.

The county court made and entered an order on July 25, 1921, calling in all of the county warrants for cancellation and reissuance, and, pursuant to the order, each of the appellees presented for reissuance the warrants which it held. The county court decided that the warrants held by appellees were void on account of the notation in regard to the payment of interest, and made an order canceling the warrants.

Appellants were made parties in the county courl as citizens and taxpayers protesting against the reissuance of the warrants held by the appellees.

There was an appeal prosecuted to the circuit court by the present appellees, and on the trial in that court there was a judgment directing the reissuance of'the warrants for their face value, without adding any accumulated interest and without the notation for the payment of interest in the future.

An appeal' has been prosecuted to this court, but there is no bill of exceptions bringing into the record the testimony in the form of an agreed statement of facts upon which the case appears to have been heard.

The Constitution, article 16, § 1, provides that no county, city or municipality shall issue any interest-bearing evidences of indebtedness, and the attempt on the part of the county court to provide for the payment of interest was void. Quinn v. Reed, 130 Ark. 116.

The warrants, if issued upon proper allowances made by the county court, were not void except to the extent of the stipulation to pay interest. Forrest City v. Bank of Forrest City, 116 Ark. 377.

It was the. duty of the county court, upon the presentation of the warrants, to order a reissuance thereof to the extent that they were valid and legal claims against the county. Monroe County v. Brown, 118 Ark. 524.

There being no bill of exceptions in the case preserving the evidence upon which the cause was heard, we must indulge the presumption that the trial court was justified in finding that the warrants were valid to the extent of the amounts stated on the face, exclusive of the agreement to pay interest.

It is contended by counsel for appellants that interest was unlawfully collected on these warrants, and that the amounts so collected should be deducted from the reissued warrants, but we must also assume, in the absence of a bill of exceptions, that there was no proof made of the collection of interest.

The judgment is therefore affirmed.


author: Wood, J.

text:
    Utley v. State.
    Opinion delivered March 13, 1922.
    False pretenses — good faith as defense — instruction.—As the gravamen of the offense of false pretenses is the intent to defraud, it was error, in a prosecution for false pretenses in selling property represented to be unincumbered when in fact the title was reserved in another until the defendant . paid the purchase money, to give an instruction which virtually excluded the defense that defendant in good faith believed that his title was clear.
    Appeal from Craighead Circuit Court, Jonesboro District; B. E. L. Johnson, Judge;
    reversed.
    Appellant pro se.

    The court erred in refusing to give instruction 9 and 10, to the effect that where a party does not rely upon statements, or relies upon a separate investigation, he cannot he heard to complain of false pretense. 42 Ark. 131; 49 Mo. 542; 141 Ark.-633; 25 C. J. 599.
    Instruction No. 10, given by the court, was manifestly erroneous, for it withdrew from the jury every defense the defendant could have had, except that of a full written receipt or satisfaction of the note or an adjustment by litigation. Murrey v. State, 150 Ark. 461; 25 Corpus Juris, 602, p. 31, note 7.
    Instruction No. 8 should have been given, for the defendant had such interest in the property as he might convey, which, taken with his claim of credit, ought to have been submitted to the jury. 92 Ark. 254; 92 Ark. 530.
    There was a variance between the allegations of the indictment and the proof. 37 Ark. 443; 37 Ark. 445. The indictment having specifically described the check, the proof should have been equally specific. 60 Ark. 143; 71' Ark. 418; 84 Ark. 286; 85 Ark. 501 ; 62 Ark, 538; 29 Ark. 68; 70 Ark. 30; Clemons v. State, 150 Ark. 425. The proof must correspond with and support the averment. 25 C. J. 638, 875-2, note 46; 120 Ark. 237; 70. Ark. 30.; 112 Gla. 226; 57 S. W. 813; 152 N. W. 378.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Where an offense is committed partly in one county and partly in another, the jurisdiction is in either county. O. & M. Digest, § 2875; Wharton’s Criminal Law, vol. 2 (11th Ed.) sec. 1473.
    Instruction No. 10, requested b3r the defendant, was not the law and the court was right in refusing it. Wharton’s Grim. Law, vol. 2 (11th Ed.) § 1440; 59 Ark. 375.
    It is not necessary that the false pretense should have been the sole inducement to part with the property. 59 Ark. 375; Wharton’s Crim. Law, § 1440.
    Appellant cannot complain of the failure to submil an issue where he requested no charge thereon. 89 Ark. 3')0; 95 Ark. 593; 75 Ark. 373; 77 Ark. 477; 86 Ark. 360; 104 Ark. 322.
    The vendor of personal property reserving title to same may recover it if any part of the purchase price remains unpaid. 92 Ark. 598.
    Representations to be fraudulent must be material. 12 Ga. App. 695; 78 S. E. 202.
    Identification of a check is sufficient although it does not correspond exactly with the one pleaded. 173 Mass. 541; 54 N. E. 353.
   Wood, J.

The appellant (defendant below) was con • victed on an indictment which charged that he “did unlawfully, feloniously, designedly and with intent then and there to defraud and cheat Joe Stevens, falsely represent and pretend that he was the owner of one black horse and that same was not incumbered, whereas in truth and in fact the title to said horse was in one G. W. Culberhouse, all of which the said defendant then and there knew, and knew that each of said pretenses was false; by means and color of which said false pretenses, he, the said H. T. Utley, induced the said Joe Stevens to purchase said horse for the sum of one hundred-fifty dollars, * * * * * * * and did then and there unlawfully, feloniously, designedly, intentionally, with intent then and there to defraud and cheat said Joe Stevens, obtain from the said Joe Stevens a bank check on the Bank of Truman, Truman, Arkansas, for the sum of one hundred-fifty dollars, payable to said H. T. Utley, of the value of one hundred-fifty dollars, the property of Joe Stevens,” etc.

It was shown by the State that on February 8, 1920, the appellant executed a note to Gr. W. Culberhouse for the sum of $224. The note, among other things, contained the following provision: “This note evidences the balance due upon the purchase price of the following described property, to-wit: one black horse known as the ‘Bowen horse;’ one gray horse known as the ‘Massey horse;’ one set of double harness. It is hereby agreed and understood that title to the above described property shall be and remain in the payee herein until the purchase price thereof shall have been fully paid.

(Signed) “Gr. N. Utley.

“H. T. Utley.”

Culberhouse, among other things, testified that he sold Utley two horses and a pair of harness; that one of the horses was a black horse. He took the note above mentioned in payment for the same. He never authorized Utley to sell the horses. He afterwards found the black horse in the possession of Joe Stevens, and got the horse back after a lawsuit with Stevens. Utley never paid for the horse.

Stevens testified that he bought from Utley a mare and a horse. The horse was black. He paid Utley by check on the Bank of Truman, which he supposed was cashed. The check came back to him canceled and endorsed by Utley. It was charged up to him. Witness stated that when he was negotiating for the purchase of the horse Utley said that he got the horse from Jim Bowen — that they were Jim Bowen horses. “I told him,” said the witness, “I always made it a rule to ask if the stock was in the clear.” He replied, “They are in {he clear.” Culberhouse afterward replevied the black horse from witness. Witness bought on the statement of Utley that the horses were clear of incumbrance. Witness stated that the trade was made in Craighead County, but that he actually accepted the horses in Poinsett County. Witness stated that, after Culberhouse recovered the horse from witness, Utley had paid witness $50 and gave him a note for the balance of the purchase price, which witness accepted in payment of his claim.

The appellant testified that he had a contract for doing dirt work on a certain road, and bought a bunch of mules from Culberhouse for which he agreed to pay the sum of $100 per month. He sold one pair of these mules and turned the notes for the purchase money over to Culberhouse, and Culberhouse accepted ¿he same in settlement for those mules. Witness was sick, and had to go to the hospital. While there, Culberhouse took all of his (Culberhouse’s) mules back but one, which was crippled, and also took two mules that witness bought from Mr. Sells; that he gave witness no credit for them; that witness bought two wagons from Jonesboro Supply Company, for one of which he paid cash. A few days after witness got out of the hospital Culberhouse priced him some horses at $375, and said to witness that he (Culberhouse) owed witness the sum of $150 as balance on the stuff that he had taken from witness and sold, and he stated to witness that he would give witness credit for the $150 as part of the purchase price of the horses, and witness could execute his note to him for the balance of $225, which witness did. Culberhouse guaranteed that the horses were sound. Witness afterwards discovered that one of the horses was blind, and asked Culberhouse to take the team 'back at the same price. Culberhouse said he did not have time to fool with them, and asked witness to sell them to some loggers down there. Witness then advertised the horses for sale all over the neighborhood. Stevens bought them. Culberhouse brought suit for the horses. Witness told Stevens if he lost tlie horses witness would pay him, and he did. This was settled before there was any indictment against witness. Culberhouse had no lien whatever on Sells ’ mules that he took from witness. Culberhouse also took harness belonging to witness for which witness had paid the sum of $50. On one other occasion witness had sold a team on which Culberhouse had a lien, and turned the note over to Culberhouse, and it was agreeable to him. Witness had no reason to believe that Culberhouse would object to his selling the horses after he had agreed to it. Witness heard that Culberhouse had sold the wagons which he had taken from witness at $110 each. On one of these wagons Culberhouse had a lien. In place of a crippled mule that witness had on which Culberhouse had a lien, Culberhouse took two mules from witness, for which witness had paid $350 cash about six months before.

Witness came out of the hospital in January, and did not have a chance to make investigation as to what property Culberhouse had taken from witness or what it had sold for. Witness stated that, after he discovered that one of the horses was blind, he told Culberhouse about it, and told him he must remedy it. Witness stated that when he executed the note to Culberhouse for $225 he knew that Culberhouse had got some stuff be longing to witness, but thought Culberhouse was telling the truth about it and doing the right thing about it. He knew that Culberhouse had title to the horse that witness sold Stevens, but Culberhouse told him he could sell it. Witness didn’t know what the items were that Culberhouse took back, nor what they sold for.

Culberhouse, in rebuttal, denied the statements of Utley except as to the sale made of the two mules, and reiterated that, after Utley got out of the hospital, he and witness adjusted their matters and wound it all up, and he sold witness the horses and harness for $225. Witness further stated that he had not figured up what profit he made on the property that he had taken back from Utley. He figured that lie had lost considerable, but tbat he had not figured it up. He had taken back seven head of mules, and had not given witness credit for the $240 for the team. Witness was asked the following question: “You never gave him credit for the mules you took back but about $65 a head, and on that basis you figured you owed him $150?” Witness answered, “That is just exactly what he states to you, and that is about correct; and then he bought this span of horses, but he gave me a note for $225, and that wound the thing up.”

Among other instructions the court, on its own motion, gave thje following:

“No. 10. You are instructed that if a vendor of personal property retains title to said property in a note given at the time of the sale for the purchase price, then in that case title to said property remains in such vendor until said note is fully paid and satisfied in some legal manner, regardless of other financial transactions or disputes arising between the original vendor and vendee of said property.”

The appellant offered a general objection to the giving of the above instruction and excepted to the ruling of the court in giving the instruction over his objection. The motion for'a new’trial contained thirty-one assignments of error. We do not find any prejudicial error in any of these except in the ruling of the court in giving the above instruction.

The court, on its own motion, instructed the jury that in order to convict the defendant they must find from the evidence that Joe Stevens was defrauded by the transaction; that Joe Stevens relied upon the statement as alleged in the indictment that said horse was not incumbered, and that said statement, if so made, was made with the intent to defraud. There was testimony in the record which entitled the appellant to have the issue submitted to the jury as to whether or not, on account of prior transactions between appellant and Culberhouse, appellant in good faith, believed that he was entitled to snch credits on his note as would satisfy the same. The gravamen of the offense is the intent to defraud or cheat another by false pretenses or1 false representations, inducing another, by virtue of such fraud, to part with his property. Instruction No. 10 was calculated to. cause the jury to believe that, if title to the property was in Culberhouse at the time the appellant made the alleged representation to Stevens that the property was clear, •i. efree from incumbrance, and that the note had not actually been paid and canceled in some legal manner (without defining what the legal manner was), the appellant would be guiltv, if his representations were in fact untrue, even though he did not intend thereby to perpetrate any fraud on Stevens, and even though he believed that he was entitled to credits against Culberhouse sufficient to offset and satisfy his claim against the appellant on the note.

This instruction, to say the least of it, was calculated to mislead the jury and to cause them to believe that the prior financial transactions or disputes that had arisen between Culberhouse and the appellant were not to be considered in determining the question of his intent, if the title to the horse was in fact in Culberhouse, and if the appellant had represented to the contrary. The court should not have given an instruction which virtually excluded appellant’s defense that he in good faith believed that he, by prior transactions with Culberhouse, had in legal effect satisfied the note, and that he, in good faith, believed that his title to the property was clear.

By-reason of the error indicated, the appellant did not have a fair trial. The judgment is therefore reversed, and the cause remanded for a new trial.


author: Hart, J.

text:
    Oliver Construction Company v. Williams.
    Opinion delivered March 13, 1922.
    1. Highways — statutory bond of contractor. — It was the evident purpose of Crawford & Moses’ Dig., § 6913, to substitute the obligation of a bond given by the contractor on public work for the security given by the statutory lien in the case of property of private individuals.
    2. Bonds — public improvement contractor — construction.—Under Crawford & Moses’ Dig., § 6913, providing that whenever public officers let a contract for any public improvements or public buildings a bond shall be taken from'the contractor conditioned that the contractor “shall pay all indebtedness for labor or materials furnished in the construction of said public building or in making said public improvements,” held that such statute should be liberally construed to protect laborers and material-men, whether the work was done or materials furnished directly to the contractor or to a sub-contractor.
    3. Highways — contractor’s bond — liability.—Crawford & Moses’ Dig., § 6913, requiring a contractor on public work to give bond conditioned to pay all indebtedness for labor or materials furnished, is broad enough to include laborers who have performed work for a subcontractor who furnished labor or materials which the original contractor had obligated himself to furnish, under a contract with a road improvement district.
    4. Highways — effect of contractor giving bond. — The giving of the bond required by Crawford & Moses’ Dig., § 6913, adds nothing to the obligation of the contractor, but adds sureties to his obligation and thus effectively protects those furnishing labor and materials.
    5. Highways — bonds of contractor. — The bond required by Crawford & Moses’ Digest, § 6913, is intended to protect laborers and materialmen, and serves a different purpose from the bond in favor of the Conway and Damascus Road Improvement District of Faulkner County, which is prescribed by the special act creating such district, and is not repealed by such special act.
    Appeal from Faulkner Circuit Court, George W. Ciarle, Judge;
    affirmed.
    STATEMENT OE FACTS.
    G. C. Williams brought suit in the circuit court against the Oliver Construction Company to recover the sum of $1,811.25 alleged to be due him for labor done and materials furnished to improve the Conway and Damascus road in Faulkner County, Ark.
    The suit is based upon the provisions of the contract between the Oliver Construction Company and the road district. The defendant admitted that it entered into a contract with the road improvement district for the construction of the Conway and Damascus road, but denied liability to the plaintiff under the contract. On the 9th day of August, 1920, the Oliver Construction Company entered into a written contract with the Conway and Damascus Road Improvement District of Faulkner County, Ark., to construct and improve the road from Conway to Damascus in Faulkner County, Ark.
    Sec. 4 of the contract reads as follows: “The contractor shall pay promptly, when due, for all work and labor done and material, machinery, appliances and supplies of every kind and nature furnished and used in and about the work contemplated in this contract; and the contractor shall file, within ten days after receiving notice provided for in paragraph ten of this contract, a bond as provided by section two of act 446 of the General Assembly of Arkansas, approved June 2, 1911. Should'the contractor fail to file said bond, the board may at its option require the contractor to file at such times as it may direct, with it, written receipts and releases from all persons and corporations furnishing any material, labor, machinery or appliances in said work, or any part thereof. ’ ’
    Under section 10 of the contract the Oliver Construction Company is required to enter into a bond with the said road improvement district in the sum of $100,000, conditioned for the faithful performance of- the contract by the contractor. Subsequently the Oliver Construction Companv entered into a contract with J. F. Rich to construct a part of the road as its sub-contractor.
    According to the testimony of G. C. Williams, he made a contract with el. F. Rich to do a part of the work on the road which the Oliver Construction Company had sublet to Rich. Williams made no contract with the Oliver Construction Company. During the progress-of the work, Rich lost his sight in an accident, and, being-unable to complete his contract, made a settlement with the Oliver Construction Company. The Oliver Construction Company refused to pay Williams for the work done and the materials furnished by him pursuant to his contract with Rich.
    Evidence was adduced 'by the Oliver Construction Company tending to show that Rich and Williams were partners in the work; but this is contradicted by the evidence for Williams. The Oliver Construction Company paid Rich for the work done by him under his contract.
    The jury returned a verdict for the plaintiff, and from the judgment rendered the defendant has prosecuted an appeal to this court.

      Coleman, Robinson & Ilovse, for appellant.
    Neither the plaintiff below nor the subcontractors had any connection with either party to the contract, the appellant and the road improvement district, and he is not entitled to recover under that contract. 121 Ark. 414; 128 Id. 149; 101 Id. 223.

      George F. Ilartje, for appellee.
    The contract, under the statute, net 446, approved June 2, 1911, which the parties had in mind, as evidenced by paragraph 4, and the provision with reference to the bond therein contained, was for the protection, and inures to the benefit, of all persons who furnished labor or materials in constructing the improvements contemplated by the act creating the district. Plaintiff is entitled to recover under that contract. 126 Ark. 474. The general lien law would have no application, as it expressly exempts public and quasi-public corporations from its operation. C. & M. Digest, §§ 4273, 4274; 38 Neb. 743, 57 N. W. 539; 43 Neb. 649, 62 N. W. 50.
    It makes no difference that appellant’s name was not inserted, or that he was personally unknown to the parties to the contract, as lie is a member of a class sufficiently described in the contract. 36 Kan. 246, 13 Pac. 398; 119 Mo. 304, 24 S. W. 784; 124 N. C. 328, 32 S. E. 720, 46 L. E. A. 513.
   Hart, J.

(after stating facts). It was the theory of the plaintiff that the Oliver Construction Company was liable to him under section 4 of its contract with the road improvement district. The court adopted this theory of the case in its instructions to the jury. The court told the jury that, although the plaintiff was not a party to the contract, if he did any work and labor or furnished any materials towards the construction of the road, he had a cause of action against the defendant for such work or materials, as he had proved that he had earned under the contract fixing the compensation for work and labor done.

The court also instructed the jury that, if it found that the plaintiff and Eich were partners in the work on the road, plaintiff was bound by the settlement of Eich with the defendant.

The court further instructed the jury that the Oliver Construction Company would not be liable for any work done or materials furnished beyond the prices fixed in the contract between it and the district.

It is conceded by counsel for the defendant that the right of the plaintiff to recover depends upon the construction to be given to section four of the contract between the road improvement district and the Oliver Construction Company copied in our statement of facts.

In Reiff v. Redfield School Board, 126 Ark. 474, the facts were that the directors of the'school district entered into a contract with the contractor for the construction of a schoolhouse. The contractor gave the bond required by § 6913 of Crawford & Moses’ Digest. He failed to pay certain persons for materials furnished and used in the construction, of the building. The materialmen were allowed to recover against the contractor and his sureties. The court held that where a bond is executed pursuant to the statute it shall inure to the benefit .of those furnishing labor and materials, and that an action' may be maintained thereon by one of such persons to recover for services performed. or materials supplied in the fulfillment of the contract.

Section 6913 of Crawford & Moses’ Digest reads as follows: “Whenever any public officer shall, under the laws of this State, enter into a contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements, or constructing any public building, or making any repairs on the same, such officer shall take from the party contracted with, a bond with good and sufficient sureties to the State of Arkansas, in a sum not less than double the sum total of the contract, whose qualifications.shall be verified, and such sureties shall be approved by the clerk of the circuit court in the county in which the property is situated, conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building, or in making said public improvements.”

It will be noted that the section includes making any public improvement as well as constructing any public building. This court has always given a liberal interpretation to statutes giving liens to those furnishing-labor and materials used in the construction of private buildings.

As against the road improvement district, no lien is provided by statute, and it was the evident purpose of § 6913 of the Digest to substitute the obligation of a bond for the security given by the statutory lien in the case of the property of private individuals. Such statutes and contracts made under them should receive a liberal interpretation in order to effectuate the beneficent object intended. The obligation of the bond, when construed in the light of the statute requiring its execution, is for the protection of laborers and materialmen, and under the statute is conditioned that the contractor shall pay all the indebtedness for labor and materials furnished in the construction of said public building' or in making said public improvement. The language is broad enough to include laborers who have performed work for a sub-contractor, who furnished labor or materials which the original contractor had obligated himself to furnish. Hill v. American Surety Co., 200 U. S. 197.

The statute under consideration in that case provides in substance that persons entering into formal contracts with the United States for the construction or repair of public buildings and works shall be required, before performing such work, to execute the usual penal bond with good and sufficient sureties with the additional obligation “that such contractor or contractors shall promptly make payments to all persons supplying him or for labor or materials in the prosecution of the work provided in such contracts.”

In construing it the court said: “Language could hardly be plainer to evidence the intention of Congress to protect those whose labor or material has contributed to the prosecution of the work. • There is no language in the statute nor in the bond which is therein authorized limiting the right of recovery to those who furnish material or labor directly to the contractor, but all persons supplying the contractor with labor or materials in the prosecution of the work provided for in the contract are to be protected. The source of the labor or material is not indicated or circumscribed. It is only required to be ‘supplied’ to the contractor in the prosecution of the work provided for. How supplied is not stated, and could only be known as the work advanced and the labor and material are furnished.”

Again the court said: “The obligation is ‘to make full payments to all persons supplying it with labor or materials in the prosecution of the work provided for in said contract.’ The language, read in the light of the statute, looks to the protection of those who supply the labor or materials provided for in the contract, and not to the particular contract or engagement under which the labor or materials were supplied. If the contractor sees fit to let the work to a sub-contractor, who employs labor and 'buys materials which are used to carry out and fulfill the engagement of the original contract to construct a public building, he is thereby supplied with materials and labor for the fulfillment of his engagement as effectually as he would have been had he directly hired the labor or bought the materials.”

The reasoning of that case controls here. The language of the statute is no stronger than the language used in our own statute. Such statutes are enacted in the exercise of a sound public policy. The contractor gets the benefit of the work done and materials furnished, and the statute requires him to pay for them. The contractor had supervision of the work, and it is easy for him to see what labor and materials are used in the work.

In Philadelphia v. Stewart, 201 Pa. 526, the reason for the enactment of such statutes is clearly stated as follows: “Seldom are contractors for large public works able of themselves to furnish the labor and material necessary to the completion of their contracts; in nearly every case they rely on many sub-contractors and materialmen to furnish different kinds of mechanical skill and labor, also material, such as stone, brick, lumber, glass and iron; these have nothing on which to rely for payment except the honesty and ability of the principal contractor. If the contractor of himself do not inspire confidence among these, who must be subordinate to him, his ability in many cases to bid for large work must be weakened or altogether destroyed; as a necessary consequence, competition for work disappears, in large measure, and there follows a monopoly to the few contractors of large capital, with the inevitable result of exorbitant prices. Every one knows that the city will pay the principal contractor, but will he pay his sub-contractors and materialmen, whether he makes or loses on his contract, is the question with them. ’ ’

Of course, the giving of the bond under the statute adds nothing to the obligation of the contractor. It only has the effect to add sureties to his obligation and thus more effectively protect those furnishing labor and materials which are used in the construction of the public building or in making the public improvement.

As pointed out in Reiff v. Redfield School Board, 126 Ark. 474, many cases from the various States in support of the doctrine are cited in a case note to Ann. Cas. 1916-A, at p. 761.

Cases like Dickinson v. McCoppin, 121 Ark. 414, relied upon by counsel for the defendant, have no application. Section 6913 of the Digest above referred to was a part of act 446 of the Acts of 1911, which was approved June 2, 1911. See General Acts of 1911, p. 462. The facts under which the MoCoppin case was decided arose before the passage of the statute, and its construction was not involved, and therefore not discussed or determined.

This seems to have been the construction placed upon the statute by the parties at the time they entered into the contract. It will be noted that section 4 provides for the execution of the bond provided by the statute. Section 10 provides that the contractor shall enter into a bond with the district in the sum of $100,000 conditioned for the faithful performance of the contract. The bond provided by section 4 is for the purpose of securing the laborers and material men in the payment of their claims, and the bond under section 10 is intended to secure the district in the faithful performance of the contract by the contractor. The bond required under t'he general statute, § 6913, is intended to protect laborers and materialmen, and serves another purpose and operates in a different field than the bond for the faithful performance of the contract in favor of the road district, which is prescribed ¡by the special act creating the road district; and the special act does not repeal the general act.

It follows that the judgment must be affirmed.