author: Wood, J.

text:
    Ware v. Shoemaker-Bale Auto Company.
    Opinion delivered May 14, 1928.

      G. B. Colvin, for appellant.

      Frank B. Pittard and Jolm E. Quidor, for appellee.
   Wood, J.

This is an action in replevin begun by the plaintiff in the justice of peace court to recover two tractors and a touring car. The property was described in the affidavit, and the total value placed at $277. The value of each separate article was not stated. The plaintiff executed bond required for order of delivery. The property was taken by the sheriff. The defendant did not execute any retaining bond, and the property was delivered to the plaintiff.

The day the cause was set for hearing in the justice court the defendant demurred to the affidavit in replevin, on the ground that the value of each article was not stated. The defendant moved that the affidavit be dismissed and that he be given judgment for the property or its value in the sum of $350 as damages for the wrongful taking. The plaintiff asked and was granted leave to amend its complaint, and did amend same by stating the value of each article of property, but the total value was still shown in the complaint as amended to be $277. The court heard evidence upon the issue of the right to the property and its value, and thereupon found that the property was of the value of $350, and entered an order directing the plaintiff to restore the property or its value to the defendant.

The attorney for the defendant moved to dismiss the cause because the value of the property taken was in excess of $300, hut asked the court 'to retain the issue as to damages for the wrongful taking. The court retained this issue, and sent the same to the jury. The jury returned a verdict in favor of the defendant for damages in the sum of $192. The justice court thereupon rendered judgment in favor of the defendant against the plaintiff and its bondsmen for that sum, from which the plaintiff duly appealed to the circuit court. When the cause was reached for trial in the circuit court, the parties, by consent, submitted the cause to the court sitting as a jury. The defendant moved to quash the order of delivery, and offered to show that he was damaged by the wrongful taking and withholding of his property. The court overruled his motion to quash the order of delivery, to which ruling the defendant duly excepted.

It appears that there were two trials in the circuit court. On the first trial the court found that the plaintiff was entitled to recover the property, but afterwards set aside this judgment and granted the defendant a new trial. On the second trial the cause was again, by com sent, submitted to the court sitting as a jury,' and the court found from the evidence that the property in controversy was in excess of $300 in value and therefore beyond the jurisdiction of the justice, and that the circuit court had no jurisdiction, and entered a judgment dismissing the cause for all purposes. From that judgment is this appeal.

The cause is ruled on the question of jurisdiction by the case of Kaufman v. Kelley, 78 Ark. 176, 95 S. W. 448, where we said:

“The Constitution of this State provides that justices of the peace shall have concurrent jurisdiction in suits for the recovery of personal property where the value of the property does not exceed the sum of $300. Art. 7, § 40. The value which determines the jurisdiction is the real value, and not the alleged value, of the property. That having been shown in this case to exceed $300, the justice of the peace had no jurisdiction, and the circuit court acquired none By appeal. The motion should have been sustained. Davenport v. Burke, 91 Mass. 116, and cases cited; Sackett v. Kellogg, 2 Cush. 91; Corbell v. Childers, 17 Ore. 528 (21 Pac. 670); Vogel v. People, 37 Ill. App. 388; Darling v. Conklin, 42 Wis. 478; Chilson v. Jennison, 60 Mich. 235, 26 N. W. 859; Sandford v. Scott, 3 Conn. 244; Small v. Swain, 1 Mo. 133.”

■ In that case, as in the case at bar, the defendant moved to dismiss for want of jurisdiction. 'But the instant case differs from the above case in that the appellant insists that the trial court, upon ascertaining that the justice court, and therefore the circuit court, did not have jurisdiction to determine the rights of property, should nevertheless, under appellant’s pleadings and offered proof, have retained the causé for the purpose of quashing the wrongful order of delivery and have entered judgment for the defendant for a return of the property or its value according to the proof which appellant offered to produce. The appellant contends that he was entitled to this relief under § 8656 of C. & M. Digest, which reads as follows:

“Judgment against sureties in plaintiff’s bond. If, upon the trial of any such cause, judgment be given for the defendant in the action, the court or jury trying such cause may render judgment, not only against the plaintiff for the value of the property taken under the order of delivery in the case, provided the same has not been surrendered to the defendant, upon bond, as provided for in said § 8649, together with all damages sustained by the defendant in the action, but may, upon motion of the defendant, also render judgment against the sureties upon the bond of the plaintiff for the value of such property and all damages sustained by tbe defendant in the action. ’ ’

The above statute has no application to judgments rendered dismissing an action in replevin for want of jurisdiction. The aibove .statute contemplates that, where there has been a trial of the cause on the merits and judgment rendered in favor of the defendant, then the court, where the plaintiff is in possession of the property under his bond and order of delivery, and does not surrender same, may render judgment against plaintiff and his bondsmen for the value of the property and the damages sustained by the defendant in the action. But the statute has no application where, as in the case at bar, the action, on motion of the defendant, is dismissed for want of jurisdiction of the subject-matter of the action. This court has ruled in many cases that, “to maintain replevin for goods, the plaintiff must not only have title, general or special, in them, but must be entitled to immediate possession thereof. Section 8640, C. & M. Digest, subdiv. 3; Thatcher v. Franklin, 37 Ark. 64-66, and cases cited; Carpenter v. Glass, 67 Ark. 135-137, 53 S. W. 678; Hall v. Benton, 160 Ark. 254, 254 S. W. 530; Ellis v. Caruthers, 137 Ark. 134, 208 S. W. 425.

The right to recover damages for the wrongful taking of property necessarily turns upon the issue as to whether the plaintiff who took possession was the owner of such property and had, at the time of the taking, the right to such possession. It occurs to us that it would be anomalous and illogical, to say the least, to hold that, while the court had no jurisdiction to determine the issue of the right of property and the right of possession, it nevertheless did have jurisdiction to determine that the defendant was wrongfully deprived of the possession of the property and the damages sustained by him because of such deprivation. The statute relied upon by the appellant certainly does not contemplate that the court, not having jurisdiction to try the issue of the right of property and the right of possession, would nevertheless have jurisdiction to try the issue of damages necessarily subsidiary to, and growing out of, the issue of ownership and right to possession.

To sustain his contention, counsel for appellant cites the case of Parker v. Bradford, 68 Minn. 437, 71 N. W. 619, which holds that: “"Where the affidavit and complaint in replevin in justice court state the value of the property at $100 or less, and the bond is given, the justice acquires jurisdiction to proceed and dispose of the case on the merits, though the value is not in fact more than $100, unless the defendant, as he may do, pleads and proves, in bar to the jurisdiction, the fact that the value exceeds the jurisdictional limit; but pleading the fact alone does not oust the justice of jurisdiction. Fact must be proved and determined in favor of the defendant, and, when this is done, the jurisdiction of the justice thenceforth, and not before, ceases for all purposes, except to enter the statutory judgment of dismissal in replevin cases.” 'This case cites also Darling v. Conklin, 42 Wis. 478.

These cases, it would seem, are bottomed upon statutes which the courts construe to mean that, where the action in replevin is brought in the justice court and the complaint alleges the value of the property to be within the jurisdiction of the justice, the justice court, and the trial court on appeal from the justice court, could retain jurisdiction of the cause and enter judgment for damages in favor of the defendant, even though the court ascertained that the justice court had no jurisdiction to try the cause on the merits as to the title and right to possession. We need not review these cases, for they would have no application to our statute, and are not in harmony with our own decisions, and would be unsound as a construction of our own statute. For, in Kaufman v. Kelley, above, Judge Battle, speaking for the court, says: “The value which determines the jurisdiction in replevin cases is the real value, and not the alleged value, of the property;” whereas, in Parker v. Bradford, supra, the case relied on by the appellant, it is held that, if the value of the property is ascertained on the trial to exceed the jurisdiction of the justice, such jurisdiction ceases for al'l purposes, except the entry of the statutory judgment of dismissal in replevin.

In Norman v. Fife, 61 Ark. 33, 31 S. W. 740, in an action before a justice of the peace, an attachment was issued and levied upon certain property belonging to Fife upon the execution of an attachment bond by Norman. On appeal to the circuit court, judgment was rendered by that court upon the attachment bond in the sum of $40 and for the return of the property or its value, $311.25. The court said:

“In Whitesides v. Kershaw, 44 Ark. 377, it was said that, on appeal, the jurisdiction is derived from and dependent upon the appeal; and the circuit court can render no judgment that the justice could not have rendered. The judgment of the circuit court for $311.25 was beyond the jurisdiction of the justice, and therefore void. Neither was it proper for the court to render judgment for damages, and also for a return of the property or its value. # * * If the damages claimed by defendant on account of the issuance of the attachment exceed the sum of $300, his remedy will be by an original suit on the attachment bond in the circuit court.” See Fortenberry v. Gaunt, 69 Ark. 433, 64 S. W. 95, where we held (quoting syllabus) : “Under 'Constitution 1874, art. 7, § 40, giving to justices of the peace jurisdiction in suits for the recovery of personal property where the value does not exceed $300, the circuit court, on appeal from a justice of the peace, can, upon a dissolution of an attachment, give judgment for the return of the property attached or its value, where the value does not exceed $300.”

True, these cases were in attachment, but the property was taken out of the possession of the defendant under a bond by the plaintiff under an order of attachment. 'The statute provides in such cases: “If judgment is rendered in favor of the defendant, attachment shall be discharged.” Section 567, C. & M, Digest. The doctrine of the above cases, by analogy, is applicable here on the issue of jurisdiction and the proper judgment to be rendered in the cause. In both cases the property is taken out of the possession of the defendant on the execution of the bond by plaintiff. As we construe our statute in replevin, supra, when the action is disposed of on a plea iby defendant in bar, the replevin or order of delivery is discharged, just as an attachment is discharged where judgment is rendered in favor of the defendant in attachment. Certain it is that the Legislature, under § 8656, supra, did not have in mind the disposition of the action in replevin on a plea in bar, but only intended to prescribe what may be done upon the final determination of the cause on the merits by jury trial or by the court sitting as a jury.

Under the decision in Kaufman v. Kelley, supra, it follows that the justice had no jurisdiction. We have held in a long line of cases that, where the justice has no jurisdiction, the circuit court acquires none on appeal from judgment of the justice court. Levy v. Sherman, 6 Ark. 182; see also St. Louis S. W. Ry. Co. v. O’Neal, 163 Ark. 193, 259 S. W. 393.

Looking beyond our State, the Supreme Court of Nebraska, in State ex rel. Savage v. Letton, 56 Neb. 158, 78 N. W. 533, announces the sound doctrine as follows (quoting syllabus): “In an action of replevin, wherein the property has been taken under the writ and delivered to the plaintiff, if the defendant, on motion for such purpose, secures a declaration of the nonjurisdiction of the court over the subject-matter of the suit, and a dismissal thereof for that reason, he is not entitled, by virtue of the provisions of §§ 190 or 1041 of the Code of Civil Procedure, or otherwise, to have a jury impaneled to inquire of his rights of property and possession.” See also Hall v. Bloomer, 1 Pinney's (Wis.) 463; Jordan v. Dennis, 17 Met. (Mass.) 590; Gray v. Dean, 136 Mass, 128; Vogel v. People, 37 Ill. App. 388; Smith v. Fisher, 13 R. L. 624; Burdett v. Doty, 38 Fed. 491; Cobbey on Replevin, § 1198.

It must be remembered that the taking of the property from the appellant under the order of delivery simply changed the possession during the pendency of the action for replevin. This transfer of the possession of the property to the plaintiff under his bond and order of delivery did not determine that the plaintiff was the owner and entitled to possession of the property. That conld only be determined where the issue was raised in a court having jurisdiction to determine such issue. See Moore v. Herron,11 Neb. 697-701, 24 N. W. 425. The appellant therefore is not without remedy in damages for the wrongful taking of his property, if he indeed be the owner and entitled to possession thereof, and if he was wrongfully deprived of such possession by reason of the taking of his property under the order of delivery obtained by the appellee from the justice court.

Having determined that the trial court had no jurisdiction of the subject-matter of the issue of the title and right of possession in.this case, we deem it unnecessary to discuss the construction to. be given § 8654a of Crawford & Moses’ Digest, because, manifestly, the procedure prescribed by that section applies only in cases where the court has jurisdiction of the suibject-matter of the action. Section 8654a, like section 8656, supra, has no application and cannot be invoked in actions in replevin where the defendant in the action has succeeded in having the complaint or cause of action dismissed on the ground that the court is without jurisdiction to try the issue of title and the issue of the right to the possession of the property in controversy. See State v. Letton, supra, and cases there cited.

It follows that the judgment of the trial court is correct, and the same is therefore affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Midland Savings & Loan Company v. Home Building & Savings Association.
    Opinion delivered May 14, 1928.

      Pratt P. Bacon, for appellant.
   Smith, J.

Mrs. Emma E. Shields and James S. Shields, her husband, brought this -suit against J. T. Ford, Home Building & Savings Association, of Fort Smith, Arkansas, Dan Dewberry, and the Midland Savings & Loan Company of Denver, Colorado, and for cause of action alleged: That plaintiff, Mrs. Shields, owns a house and 'lot in the city of Texarkana, and on March 20, 1925, borrowed $1,100 from the Home Building & Savings Association, hereinafter referred to as the Home Association, and, as security therefor, executed a deed of trust on her lot. That thereafter, to pay off this loan and to secure additional funds, she obtained a loan from the Midland Savings & Loan Company, hereinafter referred to as the Midland Company, for $1,600, on December 10, 1926, and, as security therefor, executed a deed of trust on the lot. The check evidencing the last loan was sent by the Midland Company to Dan Dewberry, its agent at Texarkana, with directions to discharge the prior incumbrances, which consisted of the deed of trust to the Home Association, and one to Dewberry himself, securing an indebtedness of $209.86, and another to J. T. Ford, evidencing an indebtedness of $._. That Dewberry placed the deed of trust to the Midland Company of record, ¡but embezzled the money, and failed to discharge the prior liens. There was a prayer that the equities of the parties be adjudged, and for general relief.

The Midland Company filed an answer, denying that Dewberry was its agent, and praying the foreclosure of its deed of trust.

The Home Association filed an answer, alleging' the priority of its deed of trust, and praying the foreclosure thereof.

A receiver was appointed to take charge, of the property, and, after much testimony had been taken, the court, on the final submission, entered a decree which contained the following* recitals of fact: That Dewberry conceals himself, so that a summons cannot be served upon him. That, in closing up the loan made by the Midland Company, Dewberry acted as and was the agent of that company, and that he was directed, out of the proceeds of the check of the Midland Company, to satisfy all prior liens.

Upon these findings of fact the court decreed that the Dewberry mortgage had been paid, and it was canceled; that the indebtedness due the Home Association was a first lien, and that the Midland Company loan was extinguished to the extent of the debt due the Home Association, for the reason that its agent should have paid the same, and that, if the Midland Company satisfied the indebtedness due the Home Association, it should then have a first lien for the full amount of its debt, otherwise the Midland Company should have a second lien, and that only to the extent of the difference between the amount of its debt and the debt to the Home Association.

There appears to have been no adjudication of the rights of Ford, as the testimony showed that the mont- ' gage in his favor had been paid and duly canceled. The foreclosure of the deeds of trust was decreed and the equities of the parties declared as «tated, and from this decree the Midland Company has appealed.

It .appears from the facts 'stated that the question presented by this appeal is purely one of fact, that fact being whether Dewberry was the agent of Mbs. Shields or the agent of the Midland Company in closing up the loan made by that company.

It was shown in the testimony that Shields and his wife were indebted to J. T. Ford in a sum which was secured by a mortgage on the lot, and that they applied to Dewberry for assistance in procuring a loan, and that Dewberry procured a loan for them from the Texarkana Building & Loan Association, with the proceeds of which the Ford mortgage was paid. Later Shields and wife desired to retire the Texarkana Building & Loan Association loan, and they again applied to Dewberry for assistance, and he negotiated the loan above referred to from the Home Association, and with the proceeds of that loan he paid the Texarkana Building & Loan Association and returned to Shields and wife the canceled note to the Texarkana Building & Loan Association and the deed of trust securing the note given it.

Shields and wife had a long and intimate acquaintance with Dewberry, and, after obtaining the loan from the Home Association, Dewberry made to Mrs. Shields a personal loan of $209.86, and as security therefor took a mortgage on the 'lot. Later application was made by Mrs. Shields to Dewberry to procure the loan from the Midland Company for the purpose of paying off the Loan to the Home Association and the Dewberry mortgage, and of making certain repairs to the house. The application for the loan stated the purposes to which the proceeds of the loan would be devoted, and the Midland Company wrote Dewberry a lengthy letter of instructions in regard to closing up this loan. The check from the Midland Company was made payable to Shields and wife and to Dewberry as agent, and the managing officer of the Midland Company testified that this was done in order that Dewberry might, by following the letter of instructions, acquire for that company a first lien on the property. This officer denied that Dewberry was the agent of the Midland Company, and testified that Dewberry was acting as the agent of Mrs. Shields, and without expectation of compensation for his services on the part of the Midland Company, and that Dewberry did not present the Midland Company any bill for his services, and nothing was paid him.

It appears to have been the practice of the Midland Company, in making loans, to sell the borrower stock of the company in a sum equal to the amount of the loan, with which, when the stock was matured, the loan was discharged. This stock was. paid for in monthly payments, and Dewberry was authorized to receive these payments and remit them to the company, and, as compensation for this service, he received one per cent, of the amount of the monthly payments.

The letter of the Midland Company transmitting the check to Dewberry was offered in evidence, and this is the letter which gave the specific directions as to the disbursement of the proceeds of the check. This letter contained the statement that “in closing this loan you act as our agent.”

This letter required Dewberry to pay the prior deeds of trust, to take out a policy .of insurance on the house, payable to the Midland Company, to take a receipt from the contractor for the repairs to the house, and to deliver to Mrs. Shields a passbook in which receipts would be noted for the monthly payments on the building and loan stock contemplated as a part of the loan.

Mr. and Mrs. Shields testified that Dewberry presented the cheek to them, and they indorsed it and returned the check to him for collection, as he was also a payee therein, in order that he might discharge the requirements of the Midland Company in regard to closing the loan. They did not thereafter ask Dewberry if he had properly applied the proceeds of the check, nor did they demand of him their canceled notes and deeds of trust, hut they supposed he had properly attended to these matters, and were not advised to the contrary until Dewberry absconded.

The case stated is somewhat similar to the case of Commonwealth Farm Loan Co. v. Wall, 122 Ark. 281, 183- S. W. 193, and is controlled- by it. The syllabus in that case reads as follows:

“Appellee, whose property was subject to a mortgage, desired to procure a loan from appellant, which appellant agreed to make, it being agreed that the existing mortgage be paid off out of the mortgage to appellant. Appellant sent the money to its local correspondent at the place of appellee’s residence, with instructions, but the local correspondent appropriated the money to his own use, without applying the money as directed. Held, in determining as between appellant and .appellee as to whose agent the intermediary was, and upon whom the loss would fall, the controlling question is one of fact for whom was the agent or intermediary acting in the particular transaction; and held further, in this particular case, that the intermediary was the agent of and acting for appellant, that the duty to satisfy the existing mortgage was within the apparent, if not the actual, scope of his authority, and that appellant, who held him out as his agent, must sustain the loss.”

In that case, as in this, the controlling question is the question of fact, for whom was the intermediary agent?

The court found the fact to be that Dewberry was the agent of the Midland Company, and we think that finding is not contrary to the preponderance of the testimony, and, that, being true, the Midland Company, as Dewberry’s principal, must suffer the loss resulting from its agent’s dishonesty. The court was correct therefore in holding that the note from 'Shields and wife to the Midland 'Company had been discharged to the extent of the balance due the Home Association which the Midland Company’s agent should have paid out of the proceeds of the check transmitted to Dewberry for that purpose.

The decree of the court below must therefore be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Edwards v. Perdue.
    Opinion delivered May 14, 1928.

      Pope & Jennings, for appellant.

      Goodwin & Goodwin, for appellee.
   Humphreys, J.

This appeal involves the construction of the following escrow contract:

“This escrow agreement made and entered into by and between J. M. Perdue and Dr. A. J. Edwards, both of El Dorado, Union County, Arkansas. J. M. Perdue, owner of certain lands ’lying in section 23-18-15, Union County, Arkansas, has executed the accompanying lease to Dr. A. J. Edwards for the consideration of $500, twenty-five of which was paid, the receipt of which is hereby acknowledged by J. M. Perdue. The remaining $475 to be paid to his order at the Exchange 'Bank of El Dorado, Arkansas, as follows: 'Seventy-five dollars to be paid as soon as Dr. A. J. Edwards ’ attorneys have passed favorably on his title to the lands mentioned in the lease. An abstract to be furnished by J. M. Perdue within 10 days. And the remaining $400 to he paid $100 each month. Now if the said Dr. A. J. Edwards shall promptly pay the above mentioned moneys as outlined in this .contract and accompanying lease, to be turned over to him on receipt of the last payment or on completion of the payment of the remaining- balance due under this agreement at any time, but default in any payment the bank is to return to lease to J. M. Perdue and no obligation shall remain.

“El Dorado, Arkansas, this December 9, 1926.

Indorsements: “First $100 paid Dec. 23, 1926, J. M. Perdue. A. J. Edwards. Signed J. M. Perdue, A. J. Edwards.’’’

Appellee construed the agreement to be a conditional sales contract with privilege to appellee to elect to deliver the lease to appellant and collect the balance of the purchase price, and, based on that construction of the contract, brought suit against appellant in the chancery court of Union County for a specific performance of same, tendering the lease and praying that the amount due be declared a purchase money lien, and, if not paid, that said lease be foreclosed and sold under proper order of court to pay the amount due.

Appellant construed the escrow agreement as an option contract on his part to lose what he had paid and to forfeit all rights thereunder without further obligation on his part. Appellant interposed this defense to the action.

'The cause was submitted upon the pleadings and testimony introduced by the parties in explanation of the meaning of the contract, which resulted in a decree in accordance with appellee’s construction thereof, from which is this appeal.

We do not think the contract is ambiguous, its meaning clearly being that, in case of default in payment of the balance of the purchase money, the escrow agent should return the contract with lease attached to appel-lee, without further obligation or liability on the part of appellant. The last clause in the contract oonld have no other meaning, and was a remedy provided.by the parties for ending the contract. It is a settled principle of law that, when the parties themselves in a contract provide the remedy in case of default by either party, the remedy so provided is conclusive.

The decree is reversed, and the cause is remanded with directions to dismiss appellant’s complaint.

Mr. Chief Justice Hart and Mr. Justice Smith dissent.


text:
    Maccabees, Incorporated, v. Pierson.
    Opinion delivered May 14, 1928.

      Austin J. Calhoun and King & Whatley-, for appellant.

      Edwin Up-ton, for appellee.
   Humphreys, J.

One of the appellees, Lewis E. Pier-son, made a written application to the 'Conservative Loan Company of Little Rock, Arkansas, on February 28,1923, for a loan of $2,500 with which to pay the balance due W. E. Iiurd and his wife, Frances E. Hurd, on the purchase price of the following described real estate in Lafayette County, Arkansas, to-wit: All that part of the south half of the southeast quarter lying west of the Lewis-ville and Hope road, containing 77.20 acres, and the east half of the southwest quarter of section 34, all in township 15 south, range 24 west, containing in all 157 acres, more or less.

The application contained a provision designating said Conservative Loan Company Pierson’s agent for the purpose of obtaining a loan. At the same time the Pier-sons executed the Conservative Loan Company a note in the sum of $2,500, with interest coupon notes attached, the first being for $107 and maturing October 1,1923, and the other ten being for $175 each, and maturing on the first day of October annually thereafter, until and including the year 1933, which coupon notes represent the interest on the $2,500 for the time it was to run at seven per cent, per annum from date until maturity, interest being paid annually. It was provided that the interest should bear 10 per cent, per annum if not paid at maturity. The principal note of $2,500 contained a provision that, if default should be made in the payment of any installment of either principal or interest at maturity, all of said principal and interest should become due and payable at once, at the option of the holder.

On the same day the Piersons executed a mortgage on the lands aforesaid to said Conservative Loan Company to secure the principal and coupon notes, and, after recording the mortgage, delivered the application for the loan, with said notes and mortgage attached, to the Conservative Loan Company. On the 6th day of April thereafter W. E. Hnrd and his wife, Frances E. Hard, conveyed to Lewis E. Pierson, (by quitclaim deed, the 77.20 tract of land, which, according to the evidence, was executed for the purpose of correcting a misdescription and to clear the title so the Piersons could borrow money on it. The purpose for which it was executed was not incorporated in the quitclaim deed. On July 16, 1916, the Piersons sold all the pine and gum timber ten inches and above at the stump on a portion of the land to J. B. and P. D. Burton for an expressed consideration of $200. The timlber deed was recorded in deed record 'book N5, at page 51. On April 14, 1923, the Conservative Loan Company sold the Pierson notes and mortgage, through a firm of brokers by the name of A. W. Knapp & Company, for the face of the note with accrued interest to the date of the sale. The Conservative Loan Company never paid the money or any part thereof which it received from appellant to the Piersons, and later changed its name to Fidelity Trust Company of Little Rock, and, according to the testimony of one witness, the Conservative Loan 'Company became insolvent. It does not appear whether the Fidelity Trust Company is insolvent.

Default was made in the payment of some of the coupon notes, and appellant elected to declare the whole indebtedness due, and brought this suit in the chancery court of Lafayette County, praying for judgment on the principal note for $2,500 and the five past due coupon notes, amounting to $807, and for a decree of foreclosure of the mortgage lien and an order of sale of said real estate to satisfy the judgment. It made W. E. Hurd and Frances E. Hurd parties defendant, praying that its lien be declared prior and paramount to their lien for the balance due on the purchase money of the land. It also made J. B. and P. D. Burton parties defendant, praying that their timlber deed be canceled.

The Piersons filed an answer, interposing the defense that the notes and mortgage were obtained by fraudulent representation, in that they were executed on condition that they were to receive a loan from the Conservative Loan Company, the mortgagee, with which to liquidate the balance of the purchase money indebtedness owing to the Hurds by the Piersons; that no part of the loan contracted ever had been received; that appellant knew those facts when the notes and mortgage were assigned to it, and that it was in collusion with the Conservative Loan Company to defraud the Piersons out of the lands involved in the suit; that said notes and mortgage were without consideration, and should be canceled. They also alleged that they owed a balance on the purchase money for the property to W. E. Hurd, which was secured by a vendor’s lien on same, and is paramount to appellant’s alleged lien. They admitted the execution of the timber deed to the Burtons, but denied that they received a $200 consideration therefor. They also filed a cross-complaint, asking to make the Fidelity Trust Company, successor to the Conservative Loan Company, a party defendant therein, and praying for judgment against it for any amount that appellant might recover on the notes and mortgage in question. They also attached to their cross-complaint a list of interrogatories, in compliance with the statute, in an effort to obtain information as to whether appellant was in collusion with the Conservative Loan Company in an attempt to defraud them out of their land.

The Hurds filed an answer, denying that appellant’s mortgage was superior to their lien for the balance of .the purchase money which the Piersons owed them.

The Burtons filed an answer denying any right in appellant to have their timber deed canceled.

The interrogatories propounded to appellant and the Fidelity Trust Company, successor to the Conservative Loan Company, and attached to the cross-complaint of the Piersons, were not all answered directly, but were substantially answered in the depositions of the witnesses subsequently taken by appellant.

The cause was submitted to the court upon the pleadings and testimony, 'from which he found that the Conservative Loan Company perpetrated a fraud upon the appellant in obtaining the notes and mortgage without consideration, and that there were sufficient facts disclosed by the record of Lafayette County, and other evidence, to have put appellant upon inquiry, which facts were notice to it, and which, if followed up, would have led to a knowledge of fraud and failure of consideration of the notes and mortgage. He further 'found that the notes and mortgage were usurious and void. A decree was rendered in accordance with the findings dismissing appellant’s complaint for the want of equity, from which is this appeal.

The only record evidence in Lafayette County which would have put appellant on notice was the deed of the Hurds to the Piersons in which a lien was retained for the balance of the purchase money. It was stated in the application that the loan was being .obtained to pay and satisfy the vendor’s lien, and the Conservative Loan Company was designated in said application as agent of the Piersons to negotiate the loan. This is the only information appellant would have gained by an inspection of the record in LaJfayette County and an inquiry of the Piersons and Hurds. Prior to the purchase of the notes and mortgage the Hurds executed a quitclaim deed to the Piersons for the 70.20 tract. The effect was the release of that particular tract from the vendor’s lien, in so far as innocent parties were concerned. The quitclaim deed itself did not state that it was given to correct a misdescription only. The undisputed testimony is to the effect that there was no collusion between appellant and the Conservative Loan Company to defraud the Piersons out of their land. At the time the loan was negotiated, through a firm of brokers by the name of A. W. Knapp & Co., George W. Christner, the president of the Conservative Loan Company, and the agent of the Piersons, informed appellant that the Conservative Loan Company bad paid tbe Piersons and was tbe owner of tbe notes and mortgage. They had a right to rely npon the statement of Pierson’s agent, as they bad constituted the Conservative Loan Company their agent for the purpose of negotiating the 'loan. If either of two innocent parties is to suffer, the one who made it possible for the wrong to he perpetrated must bear the loss.

The trial court also erred in finding that the notes and mortgage were usurious and void. The finding was based upon the fallacious construction of the principal and coupon, notes. The court proceeded upon the theory that, while the principal note provided for the payment of 7 per cent, per annum, the coupon notes were executed for an additional 7 per cent, per annum, making a total interest charge of 14 per cent. The coupon interest notes evidenced the interest of 7 per cent, called for in the principal note, and not for an additional amount of interest. The notes and mortgage were not usurious and void.

On account of the errors pointed out, the decree will be reversed, and the cause will he remanded with directions to render judgment against the Piersons upon the principal note and past due coupon notes, and to decree a foreclosure of the mortgage lien in favor of appellant, and to order a sale of the lands described in the mortgage to satisfy the judgment, subject to a prior lien of the Hurds for the unpaid purchase price due them upon the east half of the .southwest quarter, section 34, township 15 south, range 24 west, being that part of the land described in the mortgage to which they did not execute a quitclaim deed to the Piersons.


text:
    Cotton v. Boone County.
    Opinion delivered May 14, 1928.

      James M. Shiim and Grump & Foster, for appellant.

      Shouse & Rowland, for appellee.
   Humphreys, J.

Appellant 'brought suit in the Boone County Court for fees alleged to be due him for services rendered in his official capacity as chancery clerk and recorder of Boone County. He based his action upon fees allowed for such services (by statute prior to October 31, 1904.

Special act No. 63 of .the Acts of the General Assembly of 1903 placed the officers of Boone County on a salary. Said act went into effect October 31, 1904. It was alleged in the complaint that Said act was repealed by-act No. 77 of the acts of the General Assembly of 1927. The county court ruled that it did not, and disallowed appellant’s claim. On an appeal to and trial de novo in the circuit court off said county, the trial court found that act No. 63 of 1903 was not repealed by act No. 77, 1927, and dismissed appellant’s action, from which is this appeal.

The sole question presented by appeal is whether appellant, as clerk and recorder of said county, was on a salary after the approval of act No. 77 of 1927, on March 3 of that year. This depends on whether said act 77 of 1927 repealed act 63 of 1903, placing- the officers of Boone County on a salary.

In the title and the body of act 77 of 1927, in both 1 and 2, the declared intent was to repeal special acts relating to and fixing salaries of certain officers of Carroll County. No other purpose is mentioned in the body of the act, so the phrase ‘‘and for other purposes,” at the end of the title, is without meaning. If any meaning could be accorded the phrase, it would have to be a meaning in harmony with the declared purpose of the act and not a meaning foreign to such purpose. It being the declared intention in the body of the act to repeal all special acts relating to and fixing the salaries of certain officers of Carroll County, the necessary implication is that acts relating to and fixing- the salaries of certain officers in other counties were not intended to he repealed. Only two special acts relating to and fixing the salaries of officers in Carroll County were mentioned or referred to in the act. Of course they were repealed. The other four acts referred to by number and the date of their respective approval had nothing whatever to do with fixing the salaries of certain officers in Carroll County, so it is evident that those acts were inadvertently and unintentionally included in the statute. Obviously their inclusion was a clerical mistake or error. Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330, 205 S. W. 6951

No error appearing, the judgment is affirmed.


text:
    Heinrich v. Heinrich.
    Opinion delivered May 14, 1928.

      Harb & Barnard and Robert J. Brown, Jr., for appellant. .

      Watkins & Paste, for appellee.
   Humphreys, J.

Tlie only question presented by this appeal for determination is whether the chancery court of Pulaski County erred in divesting the title out of appellant and investing’ same in appellee to lot 8 of Schlatter’s subdivision to the northwest quarter of the northwest quarter of section 22, township 2 north, range 12 west, Pulaski County, Arkansas, subject to a lien of $150 in favor of appellant as part of the purchase price paid by him for the lot.

The decree respecting the property was rendered in a divorce suit brought by appellee against appellant, in which appellee prevailed. The case rvas tried upon testimony taken ore terms, and it has not been brought into the record by bill of exceptions, so the review before this court must be limited to errors appearing* upon the face of the record. Ft. Smith, S. & R. I. R. Co. v. Lovelady, 150 Ark. 508, 234 S. W. 634. The court found that appellant and appellee purchased the property under contract from the Bankers’ Trust Company, and that said contract of purchase was in the name of both appellant and appellee; that appellant paid $150, which was the initial payment at the time the purchase was made, and that the rest of the purchase money was paid by appellee. As the purchase money had been paid, this created an equitable estate in entirety by appellant and appellee. Roach v. Richardson, 84 Ark. 47, 104 S. W. 538. An estate by entirety, either legal or equitable, cannot be divested ont of the husband and invested in the wife, or vice versa, by the courts. The right to the whole estate 'by the survivor prevents this. Roulston v. Hall, 66 Ark. 305, 50 S. W. 690, 74 A. S. R. 97. Appellant contends, under the rules announced in the two cases cited, that the power and authority of the trial court was limited to making a division of the rents thereafter accruing from the property in question between appellant and appellee. This would be true with reference to any lands, not embraced in the homestead, but not as to homestead land.. There is nothing on the face of the record to show that the five-acre tract in question was not a homestead, so we must indulge the presumption that the testimony reflected that fact. This .presumption brings the case clearly within the rule announced in Woodall v. Woodall, 144 Ark. 163, 221 S. W. 463, to the effect that courts may award to the innocent party in divorce suits the possession, for a limited time, or absolutely (meaning for life) of a homestead held by entirety.

The court erred in divesting title to the five-acre homestead tract out of appellant and investing same in appellee, subject to a lien for such portion of the purchase price as was paid by appellant, and for that reason the decree must be reversed, and the cause remanded with directions to award possession of the tract to appellee for life, subject to the right of survivorship. Cost adjudged against appellant. .


author: Hast, C. J.,

text:
    Gate City Building & Loan Association v. Frisby.
    Opinion delivered May 14, 1928.

      Arnold & Arnold, for appellant.

      Frank 8. Quinn, for appellee.
   Hast, C. J.,

(after stating the facts). The chancellor found that the Gate City Building & Loan Association had the paramount lien on the lands involved in the action and decreed a foreclosure of its mortgage under its cross-complaint for the amount due under its mortgage. In ascertaining the amount due appellant under its mortgage and in finding the amount appellant should recover upon the basis of the cancellation of the stock in said association described in appellant’s notes and mortgages, the chancery court held that, to ascertain- the present value of the principal and the unmatured installments, interest should be calculated at six per cent, as the legal rate for half the unmatured monthly installments, instead of at ten per cent., as provided in the mortgage. The correctness of the chancellor’s decision in this respect presents the only issue on the merits raised by the appeal. It will he seen that, while this issue is of small consequence in so far as the result in dollars and cents in the case at bar is concerned, it is of great importance alike to building and loan associations and stockholders and borrowers from them.

The chancellor seems to have proceeded upon a wrong conception of what was decided in Roberts v. American Building & Loan Association, 62 Ark. 572, 36 S. W. 1085. In that case the court expressly said that the rule for determining the amount which most nearly enforces all the contract obligations is “to ascertain the amount of stated dues and interest which will bécome due during the future existence of the corporation as estimated; then find the principal which, with interest for the supposed time, will amount to the dues and interest' already calculated; this will be the present value of the anticipated payments; to this principal add the arrearage due, and the fines for the time between the date of default and the entry of the decree of sale.”

After approving the above, the court referred to another rule, which is “to ascertain by proof the probable duration of the society, then to estimate the aggregate amount of the weekly and monthly installments payable during that time, from that sum rebate a just amount of interest, and add thereto the arrearage due, after allowing for payments made to the society, and the sum thus ascertained is the amount which the mortgagee is entitled to receive in praesenti in satisfaction of the . mortgage.”

The court said that either of these rules would be just to the borrowing member and to the associations. Preference was given to the first rule because it gives a certain and accurate method of arriving at the amount, whereas by the latter rule the amount of interest to he rebated is not fixed, but is such as the chancellor may deem just.

But it is insisted that in the Boberts ease the court fixed the rate of interest at six per cent., the legal rate for all cases. We do not think so. The rule adopted, as well as the reasoning of the court, shows that the contract rate was adopted and the interest was computed at six per cent, because that was the contract rate, and not because it was the legal rate. This was the interpretation placed upon the opinion in Abrams v. Citizens’ Building & Loan Association, 125 Ark. 192, 188 S. W. 557. Eight per cent, was adopted in calculating the interest. The court expressly stated that the rule established in the Boberts case has become a rule of property. In discussing the subject the court said:

“This rule does no violence to the by-laws of the association, and therefore does not constitute the making" by the court of a new contract for the parties. The parties have a right to stipulate in advance what the terms of settlement shall be in event of foreclosure, and a by-law on the subject would constitute a contract. But there is no by-law of appellee association providing for terms of settlement in case of foreclosure.”

Since we have no express, provision in the contract between the parties on this particular subject, it becomes necessary for the chancery court to fix the terms of settlement which are found to result from the contract, and we believe it to be not an unjust method to follow the nile laid down in the Boberts case.

In the later case of Nakdimen v. Brazil, 131 Ark. 144, 198 S. W. 524, the court said: “Moreover, the bond and mortgage constituted the last expression of the terms of the contract, and must control.”

So we may consider it as the settled law of this State that the contract rate of interest must govern in finding the present value of anticipated payments in foreclosing mortgages given by borrowers to tbe association. In tbe Abrams case it Avas also beld that, in computing the present worth of the anticipated payments, the interest should be calculated for the average time of the payments, which would be one-half of the time from the date of the decree to the estimated maturity. In short, the court holds that, in ascertaining the amount of stated dues and interest that Avill become due during the future existence of the corporation as estimated, the contract rate of interest applies.

Having reached tins conclusion as to the interpretation to be placed upon our own opinions which have heretofore been held to govern in cases of this sort, and which have become a rule of property in this State, no useful purpose could be served by citing or reviewing the decisions of courts of other States or text-writers on the subject.

It is next contended that the appeal should be dismissed because, after the appeal was taken by appellant, it caused the land embraced in the mortgage to it to be sold under the foreclosure decree, and became the purchaser at the sale. Under the terms of the mortgage, the mortgagee was given the right to become the purchaser at the foreclosure sale. Under these circumstances the mortgagee had a right to become the purchaser, and nothing is more common than for him to do so. Indeed, it is beneficial alike to the mortgagee and mortgagor for the former to purchase at the foreclosure sale, for a purchase by the mortgagee often prevents a sacrifice of the property. Keller v. Whittington, 106 Ark. 525, 153 S. W. 808; and Easton v. German-American Bank, 127 U. S. 532, 8 S. Ct. 1297.

The soundness of this rule has been conceded as to sales made under a poAver of sale contained in the mortgage as to foreclosure sales in chancery, but the rules, laid dovra by this court in Jones v. Hall, 136 Ark. 348, 206 S. W. 671, and other eases, is applicable here. In that case it was held that a party is estopped to appeal from a judgment where he has accepted the amount awarded to him by the judgment, if, by taking such appeal, he incurs the hazard of recovering less than the amount of the judgment. In that case, under the facts presented by the record, the appellant, by prosecuting the appeal, incurred the hazard of recovering less than was awarded her by the decree appealed from. The court, however, called attention to the fact that in Coston v. Lee Wilson & Company, 109 Ark. 548, 160 S. W. 857, it had approved the following from Betchel v. Evans, 10 Idaho 147, 77 Pac. 212 :

“If the party has collected his judgment, and, in seeking to gain more by the prosecution of an appeal, thereby incurs the hazard of eventually recovering less, then his appeal should be dismissed. If, on the other hand, the appeal is from such an order or judgment as that he could in no event recover a less favorable judgment, and that he incurs no hazard of ever receiving less than the judgment already collected by him, we see no objection to the prosecution of his appeal.”

In the case at bar the chancery court held that appellant had the paramount lien on the mortgaged property, and there was no dispute as to the amount of the mortgage indebtedness. In these respects the decree was not appealed from. The only dispute was as to the rule to be adopted in charging interest in finding the present value of the anticipated payments. There was no other contention between the parties. The chancery court adopted the legal rate, which was lower than the contract rate. Hence appellant incurred no hazard whatever of recovering a less amount upon appeal, and we think the motion to dismiss the appeal should be overruled.

The Home Building & Loan Association had a second mortgage upon the same property. The record shows that the mortgaged property did not sell for sufficient to pay both mortgages, and that a deficiency judgment against the owners of the mortgaged property could not 'be collected. It is claimed that the difference in the amount to (be collected by appellant is smaller than the costs of the appeal. Hence it is claimed that it would be inequitable to tax the costs of the appeal against any of the proceeds derived from a sale of the mortgaged property, but that the same should be taxed against the remaining assets of the mortgagor in the hands of a receiver of his estate. Now, the appellant had a right to appeal from an erroneous decree of the chancery court, whether the result of the appeal was much or little to it. As we have already seen, the question was of much consequence to appellant in the general prosecution of its business, and it had a right to have a decision from a court of last resort upon the matter. Hence it would be inequitable to tax the costs of the appeal against it. The general creditors had a right to the general assets in the hands of the receiver to pay their claims. This court has acquired no jurisdiction over them. It has acquired jurisdiction by this appeal over the proceeds derived from the sale of the mortgaged property, and may direct the chancellor to allow the receiver to pay the cost of the appeal out of such funds, after paying the decree in favor of appellant. The cost of the additional bond required of the receiver pending the appeal on motion of appellant will be taxed against appellant.

It results from our views that the decree of the chancery court must be reversed, and it will be directed to enter a decree in accordance with this opinion and for further proceedings in accordance with the principles of equity. It is so ordered


author: Mehaffy, J.

text:
    Manley v. Moon.
    Opinion delivered May 14, 1928.

      Jewries M. Shinn, for appellant.

      Woods & Greenhaw, for appellee.
   Mehaffy, J.

Appellants filed a petition with the county board of education, Boone County, Arkansas, asking that a school district be created out of the territory described in the petition. The creation of the districts as described in the petition would, in effect, consolidate District No. 30 and District No. 46. Besidents of District No. 46 filed a protest, objecting to the creation of the district as requested, insisting that the board of education had no authority to consolidate school districts under the provisions of act No. 156 of the Acts of the General Assembly of 1927, authorizing the board of education to form new school districts and to change the boundary lines between any school districts heretofore formed, etc.

The only question involved in this case is the construction of act 156. That act provides that:

“Upon a petition being filed with the county hoard of education, signed by a majority of the qualified electors in the territory to he affected, said county hoard of education of any county within the State of Arkansas shall have the right to form new. school districts and to change the boundary lines between any school district heretofore formed where, in the judgment of such hoard of education, it would be for the best interest of all parties affected; provided, however, that no change shall be made that would impair any outstanding indebtedness of any school district now formed.”

Section 2 provides: “This, act shall not repeal or affect act 274 of the Acts of the General Assembly of 1915. And is cumulative to all other laws and parts of laws defining the powers and prescribing the duties of county boards of education and of school districts, boards or directors thereof, and all other officers, and persons mentioned in this act; and, except in cases of irreconcilable conflict herewith, it shall not be so construed as to repeal any other law or part of a law,” etc;

It is earnestly insisted that two school districts, cannot be consolidated under this act of 1927. And numerous cases have been cited and are relied on to support the contention of appellee. These cases-, however, were all decided on questions that -arose prior to the passage of this act, and we do not think they are applicable here.

In the case of School District No. 25 v. Pyatt Sp. Sch. Dist., 172 Ark. 602, 289 S. W. 778, the court said that, where a special act of the Legislature created a certain school' district, the county board could not change it. We said that, however, because we construed the law, as it then existed, as not giving the county 'board of education the authority to change a district created by the Legislature. But we further said with reference to school districts in that case: “The legislative power in these respects is full and complete, and is conferred by the provisions of the Constitution.” We also said in that case: “The Legislature has full power, it may organize a district itself, and may do so without the consent of the inhabitants of the district, or it may authorize the county court or board of education or other governmental agency to form districts and change boundary lines.”

We also said, in the case of McCrory Spec. School Dist. v. Curtis, 174 Ark. 343, 295 S. W. 971, that the county board of education has no jurisdiction to annex territory already comprised in a special rural district created by special act. We also said, in the case of Carter Special School Dist. v. Hollis Special School Dist., 173 Ark. 781, 293 S. W. 722, that the county board of education had no right to dissolve a district created by the Legislature. And in the case of Park v. Rural Special School Dist. 26, 173 Ark. 514, 292 S. W. 697, that the county board of education had no authority to change the boundaries of rural special school districts. But we again announced the rule that the Legislature had full power and might organize the district or authorize any governmental agency to organize it, and that it could do this without the consent of the inhabitants.

After these cases had been decided, the Legislature passed act 156 in 1927. It was evidently the intention of the Legislature and the Department of Education to establish a system of schools in obedience to the mandate of the Constitution..

Section 1 of article 14 provides that the State shall ever maintain a general and suitable and efficient system of free schools. This is evidently what the Department of Education and the Legislature are endeavoring to do.

Section 4 of article 14, the article on education, is as follows: “The supervision of public schools and the execution of laws regulating the same shall be vested in and confined to such officers as may be provided for by the G-eneral Assembly.”

The makers of the Constitution had in mind that the system of free schools provided for would require the vesting in and confining to certain officers authority and power to make the system what the framers of the Constitution intended that it should he. And in carrying out this system, after this court decided the cases to which attention has been called, the Legislature passed act 156 in 1927. And that act, as we have already said, provides that the board of education shall have the right to form new school districts and to change the boundary lines between any school districts in any county in the State of Arkansas.

The decision in this case depends upon the meaning of act 156. It gives the hoard of education authority to change the boundary lines of any district, and we think it necessarily leaves to the board of education the manner in which it will do this. That is to say, whether it will do it by consolidating districts or otherwise. “Any school district” is sufficiently broad and comprehensive to include any school district and every school district in the State. It might as well be said that any county did not mean all the counties, but meant those that had a certain population, as to say that any school district did not mean all the school districts in the county.

“■Certainly the words ‘any contract’ are sufficiently comprehensive to include special contracts, as well as contracts which arise by implication, unless the material-man is secured by a deed of trust or mortgage or in some other form of security repugnant to the’ theory that he ever intended to hold a lien under the mechanics’ lien law.” McMurray v. Brown, 91 U. S. 257, 23 L. ed. 321.

This court, in construing a statute providing for sale of the 16th section, said:

“This contention is based upon that section of the act of 1881 which provides that, if ‘any tract (school land) was offered and not sold, it might be offered again, upon like notice, upon the first day of the next or any succeeding term of the county court, and so on offered until sold, without a new petition.’ He insists that the words ‘the next or any succeeding term of the county court, and so on offered, ’ should be construed to mean that the land should be offered at each succeeding term of the county court until sold. We do not think so. It should he construed in that way if the language had been 'if any tract was offered and not sold, it might he offered again, upon, like notice, upon the first day of the next and every succeeding term of the county court, and so on offered until sold, without a. new petition.’ But ‘or’ does not mean ‘and,’ hut ‘either’ and ‘any’ does not mean ‘every,’ but ‘one indifferently.’ We think that the act of 1881 authorizes the sale of any tract, if it was not sold at the time- it was first offered, on the first day of any succeeding term of the county court. ” Brown v. Rushing, 70 Ark. 111, 66 S. W. 442.

An important rule in the construction of statutes or the interpretation of statutes is to ascertain the meaning or intention of the Legislature. And if this intention can be had from the words used, then we construe it according to the words, used by the Legislature. And when the Legislature said ‘any district in any county in the State, ’ it meant all the districts, just as when it said ‘any county,’ it meant all the counties in the State of Arkansas.

It is insisted that a consolidation of the districts cannot be had under this, act because there is another act providing for consolidation. But this act expressly provides that it is cumulative and that it does not repeal any act that is not in irreconcilable conflict. We do not think the act providing for consolidation of districts is in irreconcilable conflict with this act, and it is therefore not repealed, but the board of education may proceed under either act.

We all agree that the Legislature had the power under the 'Constitution to give the board of education the power to change the lines between any and all districts, and the only question here is whether, in act 156, it did that. The Constitution intended that the Legislature should provide for an efficient system of free schools, and this can best be done by and through the boards of education.

It is insisted that this consolidation should not he had, and that it may be impractical because the children residing in District No. 46 conld not attend school at Lead Hill on account of the distance that they would have to travel and the fact that said territory is so cut up by streams and mountains that they could not be transported to said school by cars or busses.

It is the province of the board of education to determine all these questions, and none of them were gone into in this case by the circuit court on appeal. The court sustained a demurrer to the petition, and dismissed the petition.

We think the court was in error, and the judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer, and for such further proceedings as are not inconsistent with this opinion.

Hart, C. J., and Wood and Kirbt, JJ., dissent.


author: McHaNey, J.

text:
    Walk v. Barrett.
    Opinion delivered May 14, 1928.

      Scott & Goo¿tier, for appellant.

      Wilson ■<& Wilson and Strait & Strait, for appellee.
   McHaNey, J.

At the time of his death in 1923, E. H. Walk was the owner of two certain tracts o,f land in Yell County, one containing 80 acres and one 5 acres; also some town lots on which, he resided in Ola. His wife, Mrs. Mary Walk, died some 13 months prior to her husband. He left a will giving- all his property, real and personal, to appellants, nephews of the testator, except his home .place or residence in the town' of Ola. This will was admitted to prohate. Appellee, Aris Barrett, from infancy lived with Mrs. Walk’s mother until the latter’s death, and thereafter, until her marriage in 1906, lived with Mr. and Mrs. E. H. Walk. After the prohate of said will, appellees brought this action for specific performance of an alleged contract between them and E. H. Walk, whereby said Walk agreed, in 1907, to execute a will, .giving appellees all his property at his death, in consideration of their rendering certain personal attention and financial assistance to him and his wife during their lives, or the lives of either.

The Walks, did not live in the home of appellees, but maintained their own separate establishment, near the home of appellees. Mr. Walk was a strong and vigorous man, both in body and mind. There is no contention that he was incapable of making the will executed. A day or two after the death of his wife, Mr. Walk went to live in the home of appellees, whereupon Mrs. Barrett asked him fór a deed to the property to secure her for her services, and he immediately left. She tells the story as 'follows: “ At Cousin Moll’s death I prepared a home for Cpusin Henry. Prior to her death we had entered into an agreement to render personal and financial assistance in every way to make their lives easier, and I felt that a verbal agreement had been going sufficiently long, and I asked Cousin Henry to make me a deed to secure me of my time and fulfill the contract. Which he objected to, and left.”

After leaving their home, he never returned, and it is not contended they ever did anything further for him. It is admitted that, during all the years after it is said the contract to convey was made, Mr. Walk attended to •all his business, rented out his farm land, collected the rents, made several small loans to various individuals, from $112 to $200, taking mortgages as security, and it was not generally known that he was dependent for a living on the bounty of appellees. His pastor and other witnesses all contradict the idea of his being thus dependent and that the financial and other assistance claimed to have been rendered was, in fact, rendered. He deposited $270 in bank during the last year of his life, and had $170 on deposit when he died.

The chancellor found the facts in favor of appellees, and decreed specific performance of the alleged contract. In this we think he was in error. The rule of law applicable in such cases is that, before a court of equity may grant specific performance of a parol contract to convey lands, the evidence of such agreement must be clear, satisfactory and convincing. It must be so strong as to be substantially beyond reasonable doubt. Williams v. Williams, 128 Ark. 1,193 S. W. 82. Appellees cite and rely upon this ease, as also Fine v. Laster, 110 Ark. 425, 161 S. W. 1147, Ann. Cas. 1915C, 385; Boyd v. Lloyd, 86 Ark. 169, 110 S. W. 596; Whittaker v. Trammell, 86 Ark. 251, 110 S. W. 1041; and Salyers v. Smith, 67 Ark. 526, 55 S. W. 936. In the Williams ease the contract to convey was sustained under the above rule, but the plaintiff left his own home and lucrative employment and went to live with deceased on the land, and carried out his part of the contract. In Fine v. Laster a deed to the property was- executed by deceased and delivered to the cashier of the bank to be delivered at his death. In the Boyd, Whittaker and Salyers cases, deeds, were executed. In all these cases the claimant or grantee was put in possession of the properties under agreement to support; but here, not only is there no deed or other writing, but a mere alleged oral promise to convey. It is a strange coincidence that Mr. Walk should immediately leave the home of appellees whén they requested of him a deed to secure them for their services, if he had previously agreed to give them the property at his death. 'Shortly thereafter he executed the will heretofore mentioned, and left appellees entirely unprovided for therein.

We do not review the testimony in detail, as it would serve no useful purpose. We have carefully read same, and find it insufficient to measure up to the clear, satisfactory and convincing rulé heretofore announced. The decree will therefore he reversed, and remanded with directions to dismiss the complaint for want of equity.


author: MoHaney, J.

text:
    Rebsamen, Brown & Company v. Van Buren County.
    Opinion delivered May 14, 1928.

      Taylor Roberts and Carmichael & Hendricks, for appellant.

      W. H. Cooper, for appellee.
   MoHaney, J.

Appellants are certified public accountants of Little Rock, Arkansas, and on the 4th day of December, 1926, entered into a contract with the county judge of Yan. Burén County, to make an audit of the books and records of said county for a period of four years, ending December 31, 1926, and submit a report of such audit to the county judge, for which they were to be paid the sum of $1,000. Acting under said contract, they entered upon said work in December, 1926, and finished same in March, 1927, submitted a report of their audit to the county judge at Bee Branch, in said county, the last day of April or the first day of May, which the county judge declined to accept. They thereafter filed a copy of said report on July 5,1927, with the clerk of the court. The county judge who made and executed the contract for appellee went out of office December 31, 1926, and a new county judge came in January 1, 1927.

At a meeting of the quorum court held November 15, 1926, said court took the following action:

“Now on this day, on motion of Gr. C. Pledger that the county judge be requested to make an order directing an audit of the county records. Vote 16 for, J. W. Hutch-ins being absent, same being a majority in favor of an audit.”

With reference to the appropriation for making an audit, the following occurred: “Now on this day, on motion of Gr. C. Pledger, that an appropriation of $1,000 be made for the purpose of paying for county audit. Vote by roll call. 12 in the affirmative, and 4 against”; setting out the names of those voting for and against.

The record in this case fails to show an order of the county court authorizing the county judge to- enter into said contract with appellants, nor is there any order of the county court in this record ratifying or confirming the contract as made by the county judge on the 4th day of December, 1926. The claim was presented to the county court, disallowed by it, and an appeal was taken to the circuit court, where, on a trial de novo, the circuit court also disallowed the claim.

In view of the disposition we make of it, we find it necessary to discuss only one question, and that jis, whether the contract between appellants and appellee, executed by the county judge, was valid and binding on the county. By section 28, article 7 of our Constitution, county courts “have exclusive original jurisdiction in all matters relating to * * * the disbursement of money for county purposes and in every other case that may be necessary to the internal improvement and local concerns of the respective counties * *

Section 2-279, C. & M. Digest, provides: “The county court of each county shall have the following powers and jurisdictions: Exclusive original jurisdiction in all matters relating’ to county taxes * * *; to audit, settle and direct the payment of all demands against the county # ; to disburse money for county purposes, and in all other cases that may be necessary to the internal improvement and local concerns of the respective counties.”

Thus it will be seen that, by the Constitution and statutes of this -State, the county court, and not the county judge, had the power and authority to make the contract here involved. It was so held, after reviewing the above section of the Constitution and the above and other sections of our statutes, in Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570, Ann. Cas. 1917D, 438, where it was held that the county court had the authority to employ expert accountants to audit the books of the county. The contention was there made that the contract between Leathern & Company and Jackson County was made by the county judge, and not by the county court, and that the contract was therefore void. But in that case the county court, after entering into the contract, entered of record an order ratifying the employment of the auditors, and stating the reason therefor. Also, the county court made an order allowing the claim of appellants, which was appealed to the circuit court, and the circuit court held that there was no authority in law for the making of the contract, and that as made-it was void, as well as the order ratifying it. With reference to that question this court said:

“It will be noted that the county judge first made the contract with appellants. The county court subsequently entered of record an order ratifying the contract and setting forth the reasons which caused the court to -make the contract. The county may, like an individual, ratify an unauthorized .contract made in its 'behalf if it is one the county could have made in the first instance. Such ratification will he equivalent to original authority.” Citing* cases.

But in the case now under consideration the contract was not made by the county .court by an order entered of record, nor was it subsequently ratified by an order confirming1 and approving the contract. The county judge who made the contract went out of office twenty-seven days "thereafter, and, when the audit was completed and presented to the new county judge, he refused it, declined to allow the claim therefor, and we find nothing in the record showing that the county has ratified the making of the contract. Neither is it shown that it has accepted said audit, or any benefits therefrom. The action of the quorum court in requesting the county judge to make an order directing an audit has no binding effect on the county. An appropriation was made by it to pay the expense of an audit, but, as we have seen, the jurisdiction to make the order entering into the contract rested solely with the county court, and, not having been done by the county court, but by the county judge, it must be held that his action in entering into this contract was not binding upon the county.

It necessarily follows that the judgment of the circuit court must be affirmed. .


author: McHanEy, J.

text:
    Sandusky v. Warren.
    Opinion delivered May 14, 1928.

      Jesse Reynolds, for appellant.

      Paul MoKevmon, for appellee.
   McHanEy, J.

Appellee ¡brought this action to recover' damages for personal injuries received by him while employed in appellant’s heading mill on September 24, 1926. He was 22 years old at the time. He was employed, about three days before Ms injury, to operate a trimming-saw by running the heading through such saw in order to trim off the bad part of the heading. While doing this, a splinter of wood from a piece of heading was thrown off 'by the saw, which struck appellant in his left eye, and totally destroyed it. The saw was operated through a table, the upper half of the saw passing some eight or ten inches above the top of the table. He was inexperienced in this particular character of work, and alleged that he was not aware of the danger, and was not warned by his employer, .or anyone else thereof, and that the defendant was negligent in failing to place a guard or screen over the saw at which he was working, which would have prevented his injury.

Appellant denied all the allegations of negligence, and pleaded contributory negligence as a bar to recovery.

A trial of the case in December, 1926, resulted in a verdict and judgment for appellee for $250. On motion of counsel for appellee, the verdict and judgment in that case were set aside on account of misconduct on the part of some of the jurors in this trial. The case again came on for trial on December 9, 1927, which resulted in a verdict and judgment for appellee for $750, from which is this appeal.

Several assignments are made for reversal of this ease, the first being that the court erroneously set aside the verdict and judgment in the first trial. The action of the court setting aside-that judgment was made at the same term, and upon testimony which has not been brought into the record by a hill of exceptions, and was not objected to. Appellant admits that testimony was introduced on this question without objection. We cannot therefore consider this, assignment of error, as there is nothing in the record upon which to base the assignment contained in the motion for a new trial. Shackleford v. State, 176 Ark. 578, 3 S. W. (2d.) 962.

In the next assignment complaint is made of the insufficiency of the evidence to support the verdict — that there is no evidence on which to base the verdict. Ed Haigwood and S. A. Holt both testified that, in the operation of a saw exactly similar to that of appellant at which appellee received his injury, it was proper to use a screen guard over the saw. They had both been engaged in the lumber business instead of the heading business, but they used similar saws to the one in question in their mills, and they used guards on the saws for the protection of the operator against slivers and dust. This was competent testimony, as tending to show that the saw in question would have been safer with such a guard or screen. Appellant raised no objection to this testimony when it was offered, as reflected by his abstract, and therefore, even though incompetent, it was waived. This testimony tends to support appellee’s theory that appellant was guilty of negligence in failing to exercise ordinary care to provide appellee a safe place in which to work.

It is finally insisted that the court erred in giving instructions Nos. 3, 4, 6 and 7. Nothing but general objections were made to any of these instructions. We do not set them out in full, as no useful purpose could he served thereby. Appellant asked no instructions on his own account, but was content to let the case be submitted to the jury on instructions given by the court, both on its own account and at the request of appellee. We have examined them carefully, and find no error in them. No. 3 told the jury that the master is not an insurer of the safety of the servant, but is required to exercise only ordinary care and diligence to furnish him a safe place in' which to work, and safe machinery with which to work, and that, if appellant “understood and appreciated the dangers that he was going into when he took that sort of employment, and knew what those dangers were, then he would assume whatever risk might attach to it.” No. 4 was simply a statement of the contentions of appellee, and that as to whether appellant was negligent was a question for them to determine. In this instruction the question was left to the jury as to whether it was negligence on the part of appellant in failing to provide a guard or shield for the saw to prevent flying splinters or fragments from striking the employee and injuring him.

In No. 6, the question of his inexperience and as to the necessity of being warned were submitted to. the jury. In this instruction it is said: • • • .

“It is the duty of the master to advise the servant of the existence of those dangers in connection with the work and to point out to him this danger and warn him, and if he fails to do that, it is a-question for you to determine whether or not his failure was negligence.”

No. 7 is a continuation along the same line. In this instruction the court told the jury-that, if they found “that Earl Warren entered upon that work there and could see and did see and did know and realize that it was dangerous, and he went ahead and worked there after he appreciated the danger and knew what it was, then he assumed the risk.”

We have examined all the instructions given in the case, and find them to be correct declarations of law as applied to the facts in this case. We think there was sufficient evidence to take the question of liability to the jury, and its decision is binding on this court. No error appearing, the judgment is affirmed.