author: McCulloch, C. J.

text:
    Sealy Mattress Company v. Southern Cotton Oil Company.
    Opinion delivered February 16, 1925.
    1. Appeal and error — conclusiveness op verdict. — Where there was evidence legally sufficient to support a finding by the jury either way on the .issues presented, the verdict will be treated as conclusive on the sufficiency of the evidence.
    2. Trial — instruction as to clear preponderance op evidence.— While it is error to instruct the jury that a party having the burden of proof must establish same by a “clear” preponderance of the evidence, objection to the use of the word “clear” must be made specifically.
    3. Sales — meeting op minds — instruction.—Where the parties to a contract of sale each testified to a different understanding as to the price to be paid, an instruction that no damages could be recovered by the buyer if the minds of the parties did not meet was not abstract.
    Appeal from Pulaski Circuit Court, Third Division; Marvm Karris, Judge;
    affirmed.

      Owens <& Ehrman, for appellant.
    The burden of proof is met by a preponderance of the evidence or a fair preponderance “thereof” and it was reversible error to charge the .jury that appellant must prove its case by a clear preponderance of the evidence. 37 Ark. 580; 32 Ark. 523; 115 Ark. 406; 100 Pa. 580. It was only necessary for appellant to prove by a preponderance of the evidence that a contract was entered into, that-a part of the goods were accepted and received, and that appellee had breached the contract. C. & M. Dig. § 4864. The requirement for clear and positive proof applies only to causes in equity where relief is sought contrary to the provisions of the 4th section of the statute of Frauds and § 4862 of C. & M. Digest. 163 Ark. 49, 61; 136 Ark. 96.

      Rose, Kemingway, Cantrell & Loughborough, for appellee.
    We do not contend that any such strong degree of proof is necessary to establish a parol contract under the 17th section of the Statute of Frauds as is required under the 4th section. Before exceptions to the writing required by the fourth section can be established they must be proved by a weight of evidence “leaving no room for reasonable doubt;” particularly where the aid of equity is sought to enforce a parol contract. 209 Mo. 552; 108 S. W. 89; 1 Ark. 391; 4 Wall. 513. Conjecture and speculation cannot supply the place of proof. 113 Ark. 353; 117 Ark. 638. There is no merit in the contention that appellant did not have a fair trial because the court used the term ‘ ‘ clear ’ ’ in speaking of the preponderance of the evidence. Century Diet., “clear,” 62 Cal. 377, 384; 11 Colo. App. 515; 53 Pao. 620, 621; 57 N. W. 836, 838; 77- Ark. 128, 135. See also 125 Ark. 576; 126 Ark. 50; 99 Ark. 133; Id 356; 90 Ark. 43; 120 Ark. 118; 121 Ark. 529.
   McCulloch, C. J.

This litigation arose over an alleged contract between appellant and appellee for the purchase and sale of a product called cotton linters, which is the lint taken from cotton seed. Appellee sued appellant to recover the sum of $565.20 on account for the price of twenty-one bales of linters, and appellant brought another action against appellee to recover damages for alleged violation of a contract for the sale of 600 bales of linters. The complaint in each case was answered, and the two suits w;ere consolidated and tried together, resulting in a verdict in favor of appellee for the sum of $420.

Appellee is operating a cotton-oil mill near the city of Little Rock, and the first process of manufacturing cotton-seed oil and the by-products is to remove the remainder of the lint left on the seed after ginning. The product thus removed is called linters, and, by the process used by appellee, there are two grades of linters, called the first cut and second cut, the latter being shorter and of less value.

Appellant is engaged in the manufacture of cotton mattresses, and uses cotton linters in large quantities for that purpose. The plants lie close together, and the alleged contract was made by the respective managers, Mr. Hunt for appellee and Mr. Ortmeyer for appellant. Negotiations began for tbe purchase by appellant from appellee of 600 bales of linters, and twenty-one bales were delivered by appellee to appellant. There is a sharp and irreconcilable conflict in the testimony as to the details and price, but it is conceded that the tentative agreement made between the two managers was to be reduced to writing’ after the approval of the general manager at appellee’s principal office in Memphis, Tennessee, was received.

The testimony adduced by appellee was to the effect that the price of linters was to be six cents a pound. Appellee’s manager so testified, and he was corroborated by other witnesses. On the other hand, appellant’s manager testified that, according to the terms of the contract, he was to have 200 bales of first cut at four cents a pound, and 400 bales of second cut at two cents a pound. Appellee’s witnesses testified that the twenty-one bales of linters were delivered to appellant merely as a loan, to be returned or paid for, whereas appellant’s witnesses testified that the twenty-one bales of linters were delivered on the contract. These bales were delivered before the confirmation of the Memphis manager was received and the contract reduced to writing. At this point of the proceedings appellee’s manager caused the contract to be reduced to writing, showing the sale of 600 bales of linters at six cents a pound, and appellant’s manager refused to sign the contract on the ground that it was not in accordance with the oral agreement. The contention of appellant is that there was an oral agreement and part performance by the delivery of twenty-one bales of linters. Appellee contends that there was no contract, for the reason that appellant refused to sign the contract as tentatively agreed upon, and that the delivery of the twenty-one bales was merely a loan.

There was evidence legally sufficient to support a finding by the jury either way on the issues presented, and we must treat the verdiot as conclusive, unless error be found in the instructions. There is no contention of error in any respect save in giving and refusing instructions.

Error is assigned in giving the fourth instruction, which told the jury that the burden of proof was on appellant to establish its case “clearly by a preponderance of the evidence,” and in modifying appellant’s second instruction by adding the words, “unless the mattress company has failed to show, by a clear preponderance of the evidence, that the twenty-one bales of linters were delivered by the oil company in pursuance of the alleged contract for 600 bales.” The use of the words “clearly” and “clear” in the instruction and in the modification mentioned above, instead of merely using the term, “preponderance of the evidence,” is the point of attack upon the court’s instructions.

Instruction No. 2 as requested by appellant reads as follows:

“If you find from a fair preponderance of the testimony that the defendant entered into a contract with said plaintiff whereby it purchased from said plaintiff six hundred bales of linters, two hundred bales to be of first cut, at 4 cents per pound, and four hundred bales of second cut at 2 cents per pound, and that said plaintiff declined and refused to fulfill its contract by delivering said linters to said defendant, then your verdict will be for the defendant on the cross-complaint.”

There was no specific objection made to either of the rulings of the court in giving instruction No. 4 and in modifying instruction No. 2, and the objection in each instance was general. It must be conceded that the use of the word “clearly” or “clear,” in connection with an instruction concerning the preponderance of the evidence, is improper, for, in a trial of the issues, the burden of proof is discharged by producing a mere preponderance of the evidence. Shinn v. Tucker, 37 Ark. 580. But a general objection is not sufficient to bring the erroneous use of these words to the attention of the trial court. This should he done by a specific objection. In the case of St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187, the court had under consideration an assignment of error relating to the giving- of an instruction by the trial court which declared the duty of the defendant to establish its defense of contributory negligence “by a preponderance of the testimony to the satisfaction of the jury.” This court condemned the use of the word “satisfaction” as inaccurate, but held that a general objection was not sufficient to raise the question for review on appeal. In Hays v. Williams, 115 Ark. 406, an instruction was given which used the word “fair” in connection with a declaration as to the duty of the party to make out his case by a preponderance of the evidence, and the use of the word was condemned by this court, but we held that it was necessary to raise the question by a specific objection. The same principle has been announced in other decisions of this court. Morris v. Collins, 127 Ark. 68; Bocquin v. Theurer, 133 Ark. 448.

Error is also assigned in giving instruction No. 6, which reads as follows:

“If you find from the evidence that Mr. Hunt, acting as a reasonably prudent man, understood that the price for the 600 bales of linters was to be 6 cents, but Mr. Ortmeyer, acting as a reasonably prudent man, understood it was to be 4 cents for first cut and 2 cents for second cut, the minds of the parties did not meet, and you will allow the mattress company'nothing in its suit, but will render your verdict in favor of the oil company for the amount you think it is entitled to recover for the 21 bales of linters it delivered to the mattress company.”

The contention is that this instruction was abstract for the reason that there was no testimony tending to show a mistake as to the price of the linters. One of the principal witnesses testified to a given price and another testified as to a different price. It is true that each of the witnesses testified definitely as to the agreed price, and the testimony of neither of the witnesses, taken alone, would justify a finding* that there was a mistake, but the jury was not bound to' accept the unqualified statement of either of the witnesses, and might have found that there was an honest mistake between them as to the price of the linters, and that their minds failed to meet on an agreed price. Each of the managers of the respective concerns testified directly and positively, and the jury might have found that each one stated the facts as he remembered them, but that there was a misunderstanding between the parties, and, as before stated, their minds failed to meet upon the price to be paid, hence there was no binding contract. We cannot say therefore that the instruction was abstract.

These are the only errors that are assigned, and as we conclude that these assignments are unfounded and that the evidence is sufficient to support the verdict, nothing remains but to affirm the judgment, and it is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Oliver Construction Company v. East Brothers & Hardin.
    Opinion delivered February 16, 1925.
    1. Highways — liability of subcontractors. — Subcontractors who fully performed their contract to clear and grade the road and to haul and lay pipes were not responsible for subsequent damage to roadbed caused by the weather, and by the contractor’s delay in completing this improvement.
    2. Highways — responsibility op subcontractors for damage.— Where damage to a roadbed during winter was caused by unusually heavy rains, a subcontractor who has done the grading properly is not chargeable with the expense of repairing such damage in his account with the principal contractor.
    Appeal from Faulkner Chancery Court; W. E. Atldnson, Chancellor;
    affirmed.

      Coleman, Robinson & House, for appellant.
    If a letter is properly mailed, it is presumed that it was received by the party to whom it was addressed in dne course of mail;.and, while this presumption maybe rebutted by testimony that it was not in fact received, yet the positive, denial by .the addressee, that it had been received is not sufficient, as matter of law, to nullify that presumption. 98 Ark. 388; 127 Ark. 498. While uncontradicted evidence should ordinarily be taken as true, and should not be wholly discredited or disregarded if not opposed to probablities, yet such evidence is not necessarily binding on the court or jury, but may be disbelieved where it is contrary to natural or physical laws, opposed to common knowledge, inherently improbable, inconsistent with circumstances in evidence or somewhat contradictory in itself, especially where the witness is a party or interested, or where, in the very nature of things, it is impossible to secure opposing testimony. 23 C. J. 47, § 1791.
    Where a subcontractor is bound to correct certain defects in his work, he is chargeable with the actual cost of making such repairs. 148 Ark. 181; 105 Ark. 353. A contractor is liable for the defects in his work. 147 Ark. 203. One who first breaks a contract cannot maintain suit to recover upon it. 157 Ark. 220; 251 S. W. 886 (Ark.).

      George F. Hartje, for appellees.
   McCulloch, C. J.

Appellant entered into a written contract with a road improvement district in Faulkner County to improve a certain highway known as the Conway and Damascus road and the work of clearing, grading and pipe-hauling* was subcontracted by appellant to appellees, a copartnership.. There was a written contract between appellant, and appellees, specifying the work to be done, the unit prices therefor, and the time within which it was to be done. It was provided in the contract between appellant and appellees that the contract between appellant and the road improvement district should be “made a part of this contract, the same as if set out, with the exception of the unit prices. ’ ’ The contract also provided that appellees should push the work to a rapid completion not later than July 1, 1921, and that time was to be of the essence of the contract. The contract between appellant and the road improvement district provided that the improvement should be done under the supervision of the engineer of the district and subject to his approval and acceptance.

Appellees commenced this action in the circuit court of Faulkner County, alleging that they had completed their work in accordance with the contract, that the work had been accepted, and that appellant owed appellees therefor the balance demanded in the sum of $9,562.21. Appellant furnished to appellees a statement showing a balance due under a former statement of $6,297.21, which had been held back as retained percentage, and the further sum of $3,265, subsequently earned in completing the contract, making a total of $9,562.21, the amount claimed by appellees, which was allowed under the decree of the court.

Appellant’s statement also set forth items aggregating $9,199.05, claimed for expenses paid out by appellant in completing the work according to the requirements of the engineer of the district, and the statement charging these items to appellees shows a balance due to appellees of $363.16. The controversy arises over the items of credit claimed by appellant.

Appellant filed its answer denying that it was indebted to appellees in any sum, and moved that the cause be transferred to the chancery court, which was done without objection, and there was a reference to a master, before whom the testimony was taken, and, after the report of the master came in, the court heard the cause on the testimony thus taken and rendered a decree, as before stated, in favor of appellees for the recovery of the sum of $9,562.21, which was the amount conceded by appellant if the credits claimed be disallowed.

Each of the three appellees testified in the ease, as well as other witnesses introduced by them, and it appears from this testimony that appellees completed their work within the time specified in the contract, except a very small portion, which was pointed out by the engineer, and subsequently performed; that they left their equipments on the ground, ready to do any further work required by the engineer, but that, on October 24, 1921, the engineer went over the work with appellees and accepted the work as completed, whereupon appellees removed their equipment.

Appellees and the other witnesses introduced by them also testified that the work was done in accordance with the contract and that they were not chargeable with the items claimed as credit on appellant’s account. They disputed each of the items,- and introduced testimony tending to show that they were not proper credits.

Appellant claimed, and undertook to prove, that in April, 1922, the engineer of the district required it to do additional work in the completion of the grading and in repairing damages done to the grade during the winter, and that appellant in turn notified appellees to do this work, that appellees failed to do it, and that it was done at the expense of appellant. There is a conflict in the testimony concerning these items, but, in some respects, the proof is undisputed. Under the contract appellees had nothing to do with the surfacing of the road, as that work was subcontracted to another concern and afterwards taken over by appellant. Appellees were only required to do the work of clearing and grading and hauling and laying the metal piping. If, as contended by appellees, they did their work in accordance with the contract, which was accepted by the engineer, they were not responsible for any damage caused by the delay in doing the grading. Some of the witnesses testified that, in the spring of 1922, it was necessary to do a lot of work to restore the grades on account of damage done during the winter. Witnesses testified that, where the damage was done by unusual rains, the expenses was to fall upon the district, and where the damage was done by ordinary wear of the weather, it was to be repaired by the principal contractor.

Appellant introduced in evidence the written notice from the road improvement district, dated April 14, 1922, the notice being to the effect that the surfacing of the road had not been properly carried on, and that the principal contractor was “not taking proper care of the dump, especially that portion through the Cadron bottom.” Appellant also introduced the notice- claimed to have been sent by it to appellees, dated April 20, stating that the grading was found to be in a very unsatisfactory condition. One of the witnesses for appellant testified that this notice was mailed to appellees, but each of the appellees testified that no such notice was ever received.

It will be observed that there is a slight difference between the notice from the district to appellant and the one from appellant to appellees. The first notice complains that appellant had not been taking proper care of the dump through the Cadron bottom, which implies deterioration, whereas appellant’s notice to appellees implies that the work had not been satisfactorily done. Now, one of the principal items -of -credit claimed by appellant is the sum of $1,048.83 for labor and additional work on the Cadron levee. The testimony adduced by appellees shows that this deterioration in Cadron bottom was on account of heavy and unusual rains, and, according to the undisputed evidence, that kind of damage was to be repaired at the expense of the district itself. In fact, the undisputed evidence is that appellant was paid in full ¡by the district for all this work under a distinct agreement that it should settle with all the subcontractors: There is other evidence directly to the point that some, if not all, of the work for which credit is claimed was done under what is termed “force account” and paid for by the district. In fact, many of the items of appellant’s claim are directly disputed by testimony adduced by appellees. For instance, there is an item of $950.68, claimed to have been paid by appellant to Bolls & Mc-Clendon, subcontractors under appellees, but, after one of those parties testified that nothing had been paid to them by appellant, it was admitted that this item should be eliminated. There is another item of $1,523.28, claimed to have been paid to Hargrove & Stanton, which is disputed by Stanton, who was introduced as a witness, and also another item of more than $1,000, claimed to have been paid' to those parties for work on the Cadron levee, whereas Stanton testified that they were paid not exceeding $750, and that this work was done under force account and paid for by the district. There are other circumstances and contradictions in the testimony which it is unnecessary to relate in detail. Suffice it to say that there was a conflict in the testimony, and we cannot say that the finding of the chancellor is not supported by a preponderance of the evidence.

Decree affirmed.

Humphreys, J., not participating.


text:
    Leake v. Garrett.
    Opinion delivered February 16, 1925.
    1. Trusts — oral testimony. — An express trust cannot be ingrafted on a deed iby parol evidence.
    2. Deeds — fraudulent misrepresentation — evidence.—In a suit to ■cancel certain deeds, evidence held not to preponderate against finding that defendant and her agents did not induce plaintiffs to execute deeds by fraudulent misrepresentations and promises to account for a part of the proceeds.
    3. Trust — burden of proof. — A trust ex maleficio must be established by clear, decisive and convincing evidence, not merely by a preponderance.
    4. Deeds — voluntary conveyance — consideration.— Mere inadequacy of consideration affords no ground for setting aside a voluntary conveyance.
    Appeal from Howard Chancery Court; G. E. Jolitvson, Chancellor;
    affirmed.

      J. W. Bishop, for appellant, Mrs. Greenhaw.
    The representations to the effect that the place had been sold for sixteen hundred dollars and the vendors were to have their part of the proceeds or other property obtained in lieu of the property conveyed on which appellants relied, and the circumstances under which the deeds were made, resulted in a legal or constructive fraud upon the rights of the appellant. 60 So. 98-99; 65 S. E. 583, 585; 6 Ga. App. 608; 13 Cyc. 581, and cases cited; 53 Conn. 299, 55 Ám. Rep. 105, 111, 112. No adequate consideration is shown in this case. Nothing was paid as a consideration, not even the one dollar mentioned. 17 How. (U. S.) 43; 15 L. Ed. 34; 11 Wheat, 103-124, 6. L. Ed. 429; 12 Peters 262/9 L. Ed. 1070; Story, Eq. Jur. § 246; 107 Tenn. 572; 64 S. W. 902; 98 Am. St. Rep. 957. A trust ex maleficio arises under the facts in this case. 34 Utah 48; 95 Pac. 527-534; 23 A. L. R. 1491; 152 Ark. 247.

      J. G. Sain and Coleman, Robinson & House, for appellee.
    The chancellor’s finding will not be disturbed, because it is supported by the weight of the evidence and also because fraud is never presumed, but must be established by the party alleging it by evidence that is clear, convincing and unequivocal. An action of fraud does not lie for failure on the part of the promisor to perform a promise made by him to do something in the future which he does not intend to do and subsequently refuses to do. 152 Ark. 135; 145 Ark. 310. Appellee’s testimony as to the gift is not contradicted, and is entirely reasonable under the circumstances. Equity will recognize such a gift as a shield to protect the equity of the donee, although it would not permit its use as a sword or enforce it against another in possession. 152 Ark. 628.
   McCulloch, C. J.

This is an action instituted against appellee in the chancery court of Howard County by appellants, Robert Leake and Nancy Greenhaw, to cancel two quitclaim deeds executed by appellants to appellee, conveying their respective interest in real estate, consisting of two lots situated in Nashville, the county seat of Howard County. The prayer of the complaint was that relief be granted either by cancellation of the deeds or by decreeing a trust ex 'maleficio in favor of appellants. The complaint contained allegations to the effect that appellee and her agents induced appellants to execute the deeds by false and fraudulent misrepresentation and upon promises to account to appellants for a part of the proceeds in proportion to their several interests therein.

Appellee filed an answer denying the allegations of the complaint with respect to false representations or promises, and, upon the hearing of the case, the chancellor dismissed the complaint of appellants for want of equity.

The real estate in controversy was originally owned by appellee’s former husband, John Collins, who died intestate in February, 1899, leaving appellee as his widow, and two children, a boy and a girl.

John Collins and his wife occupied the property in controversy as a homestead, and continued to occupy the same up until the time of his death, and thereafter the property was occupied as- a homestead by the widow and the children.

About three years after the death of Collins, appellee intermarried with John Garrett, and, since then, she has not lived on the premises, but has rented the same and received the rents. The boy, Roy Collins, the son of John Collins and appellee, was killed out in Colorado, when he was about nineteen years of age, and the girl, Della, married and moved away and has not been heard' from for the last twelve or fourteen years. She left no issue, so far as is known.

Appellant Leake was a half-brother of John Collins, and Nancy Greenhaw was the latter’s niece. They claim the property, subject to the widow’s homestead and dower right, as collateral heirs of the two children of John Collins.

The property in controversy has become dilapidated, and, according to the testimony, has been condemned by the city authorities, and appellee has been making an effort to sell or dispose of the same. The property usually rented at a monthly rental of ten to sixteen dollars.

After the execution to appellee of the deeds in question, she sold the house on the lots for seventy-five dollars, with the privilege to the purchaser to remove the same from the lots.

Appellants executed separate quitclaim deeds to appellee, conveying their interests in the property. The deed of Nancy Greenhaw was executed on September 17, 1921, and the deed of appellant Leake was executed on September 19, 1921. Both deeds were filed for record on September 20, 1921. The two deeds were prepared by and executed before different officers, and each of the officers testified as to what occurred when the respective deeds were executed. Each of the appellants testified, in substance, that appellee represented that she was selling and conveying the property to an oil company.for use as a gasoline filling station; that the deed executed was one, not to appellee herself, 'but to the oil company, and that she (appellee) would account to each of appellants for his or her respective portions of the consideration, which was represented to be the sum of $1,600. Neither of the appellants testified as to any specific amount he or she was to receive, but stated merely that appellee told them that she would pay them his or her “part” of the proceeds as soon as the sale was consummated.

The two deeds were, as before stated, executed at different times, also at different places and before different officers.

Appellee testified in the case, and denied that she made any representations to the effect that the deeds of conveyance sought to be secured were to an oil company, or that-she promised either of the appellants to account for any of the proceeds. 'She testified that both of her children had abandoned the property, or, rather, turned it over to her to do as she pleased with, and that, when she applied to each of the appellants for a quitclaim deed, each of them executed the deed in question for the purpose of turning over the property to her to do with as she pleased as her own. Each of the deeds recited a nominal consideration of one or two dollars.

The. two officers who, respectively, prepared the deeds and took the acknowledgments, testified in the case. Each testified that nothing was said between the parties, at the time, about the consideration for the deed, other than the nominal consideration mentioned therein, but the officer who prepared the Leake deed testified that appellant Leake executed the deed with apparent reluctance, and that he got the impression from the conduct of the parties that there had been some former understanding between them. It is admitted by appellee that Leake hesitated about executing the deed, but finally agreed to do so, and she testified that there was no understanding that there was to be any other consideration except the nominal one expressed in the deed and the circumstances under which the title was held. In other words, the testimony of appellee shows that both of appellants executed the deed in consideration of the fact that she was the widow of John Collins and the mother of the latter’s two deceased children. At any rate, the testimony of appellee is to the effect that each of the deeds was voluntarily executed and that there were no misrepresentations or promises made to induce its execution.

An express trust cannot be ingrafted on a deed by oral testimony. That principle is elemental. Even if it be conceded that the alleged misrepresentation that the deed was to be made to the oil company was material, we think that the evidence does not preponderate against the finding of the chancellor on that issue. Each of the appellants testified separately that appellee made such representations, but this is denied by appellee, and appellants are not corroborated.

A trust ex maleficio must be established by clear, decisive and convincing evidence, not merely by a preponderance. Eason v. Wheeler, ante p. 320. It can scarcely be said that there is even a preponderance of the evidence in favor of appellants, much less to say that the testimony in their favor is clear and convincing.

It is also contended that the conveyance should be set aside on account of inadequacy of consideration, but that does not afford grounds for setting aside a voluntary conveyance.

There are no valid grounds established for setting aside the deed; hence the decree must be affirmed, and it is so ordered.


text:
    Washington v. Sander.
    Opinion delivered February 16, 1925.
    Election op remedies — conclusiveness.—Where the purchaser of an automobile sued his vendors in a justice’s court to recover possession of the car, and lost in that court and appealed to the circuit court, he will not be heard in chancery, pending such appeal, to allege ground for reformation of the contract of sale, of which he was fully aware when he brought the original action.
    Appeal from Mississippi Chancery Court, Cliickasawba District; J. M. Futrell, Chancellor;
    affirmed.

      Douglas & Reid, for appellant.
    The complaint states a cause of action for equitable relief in that (1) it seeks relief against a forfeture, (2) recovery of property unlawfully detained, (3) injunction against defendants restraining them from disturbing plaintiff’s peaceable possession, and (4) reformation of the so-called, “sales agreement.” 21 C. J. 103; 59 Ark. 405. Purely equitable relief cannot be granted in a suit properly brought at law. 37 Ark. 164.
   McCulloch, C. J.

This is an appeal from a decree of the chancery court sustaining a demurrer to appellant’s complaint against appellees and dismissing said complaint for want of equity. The facts stated in the complaint are, that appellant purchased an automobile from appellees, trading in an old car in part payment and making a small cash payment, and' agreed to pay the balance of the purchase price in installments, executing an installment note containing a reservation of title in the vendor; that appellant stored the car for safekeeping with, appellees, and, on demand, appellees refused to surrender the same; that appellant brought a replevin suit against appellees in the common pleas court of Mississippi County for recovery of possession of the automobile, and that, on the trial of the case, there was a judgment against appellant, from which an appeal was prosecuted to the circuit court, where the cause is now pending.

The complaint sets forth the substance of the pleadings in the replevin suit, and it appears that appellant, in his complaint in that suit, asserted that he was the owner of the automobile under the aforesaid contract of purchase, and that he had paid all of the installments of the purchase price which had fallen due, and that he had used the automobile in a proper and lawful manner. The answer of appellees in the replevin suit is set forth in substance, and shows that appellees denied that appellant had paid the installments as they fell due, and alleged that there were unpaid matured installments, and that appellant had otherwise failed to comply with his contract by abusing the car and failing to take proper care of it.

The contract of purchase between appellant and appellees was exhibited with the complaint, and it shows, in addition to the terms of the sale concerning the payment of the price', a stipulation that the automobile was not to be used for passenger service, and that appellant would take proper care of it.

It is alleged in the complaint that appellant is an ignorant colored man, and was not advised that the contract contained any stipulations other than the bare agreement to pay the installments and that the title should be reserved in appellees until all of the installments were paid, and he alleges that he was induced to sign the contract on the false representation that it contained only those stipulations. There is a further allegation, however, in the complaint that appellees are not claiming any rights under the stipulation with reference to the car not being used for passenger service. The prayer of the complaint is for a reformation of the contract so as to eliminate all features except the promise to pay the installments and the reservation of title.

It will be observed, from the narrative set forth in the complaint as to the issues involved in the replevin suit, that appellant claimed the right to immediate possession of the property, that he had properly used the car, and had paid the installments which had fallen due, and that these contentions were all disputed in allegations of the answer of appellees setting up their rights under the written contract.

We are of tlie opinion that the chancery court was correct in sustaining the demurrer, to this complaint. Conceding, without deciding, that it stated a cause of action for tlie reformation of the contract, it shows that appellant brought suit for the possession of the automobile in a court of competent jurisdiction, and that, with full knowledge of the contents of tlie contract and the assertion by appellees of their rights thereunder, he elected to proceed to trial upon the issues presented and to a final judgment of the court, and that he appealed to the circuit court, where the cause is now pending. Appellant took his chances in the assertion of his rights in the other litigation, and is bound by that judgment, his only remedy being the prosecution.of liis appeal to the circuit court in that case.

The decree is therefore affirmed.


author: Smith, J.

text:
    Heinemann Dry Goods Company v. Schiff.
    Opinion delivered February 9, 1925.
    1. Appeal and error — question not raised below. — A question as to the sufficiency in form of a judgment sued on cannot be raised for the first time on appeal.
    2. Judgment — sufficiency of answer. — In an action on a judgment, an allegation of the answer that defendant “denies that judgment was entered by said court in favor of the plaintiff ¡for the sum of $435 or any other suni” is not sufficient to raise a specific issue as to the sufficiency of the form of the judgment sued on.
    3. Evidence — authentication of judicial record. — A judgment of the New York Municipal Court, signed by a certain judge, may subsequently be authenticated by another judge of the same court, within U. S. Comp. St. § 1519, in view of the method of rotating judges of such court pursuant to Stess. Laws N. Y. 1915, c. 279.
    4. Judgment — authentication of foreign judgments. — Municipal courts of the city of New York are courts of record within U. S. Comp. Stat. § 1519, relating to the authentication of judicial records and proceedings.
    5. Witnesses — privilege of attorney.- — -Testimony of an attorney that he entered defendant’s appearance- pursuant to defendant’s authorization was not incompetent as being a privileged communication between attorney and client, in view of the serious charge against the attorney that he h-ad entered defendant’s appearance without authority.
    Appeal from Craighead Circuit Court, Jonesbore District; G. E. Keck, Judge;
    affirmed.

      A. P. Patton, for appellant.
    The document in the transcript purporting to be a judgment is a mere finding of the court, which might be sufficient to authorize the entry 'of a judgment. There is a distinction between decisions -and findings and judgments, and a finding cannot be treated as a .judgment 33 C. J. p. 1052. Judgments, § 6 subd. 5. The finding-referred to would not be considered a judgment in New York. 25 Fla. 654, 6 Sou. 261; 15 E. C. L. p. 570. §§ 3 and 4; 3 A. L. E. 176; 23 Cyc. 668. § 5, judgment; 15 Ark. 266; 84 N. Y. Supp. 151; 1 Black on judgments (2nd. Ed.) p. 162, § 115; 108 N. Y. S. 161; 196 N. Y. 511. It was not proper to introduce the purported judgment as it recites liability in favor of a partnership, whereas the pleadings show an action by the individual members of a partnership. 75 Ark. 461. There is a material variance in the declarations in the complaint and the transcript with reference to the amounts sued for and cost. 7 Ark. 369.

      Cooley, Adams S Fuhr, for appellee.
    The New York court had jurisdiction, 93 N. Y. 592; 49 N. Y. 303. The action of the New York attorney is behalf of appellant was warranted. 25 Ark. 144. The presumption is in favor of the validity of the proceedings in the New York court, and the burden of proof is on appellant. 15 it. C. L. pp. 876-877, § 354; 16 Ark. 28; 77 Ark. 303 ; 76 Ark. 534 103 Ark. 484 ; 222 Fed. 453; 15 Standard Enc. Proc. pp. 644-45. All necessary facts are present to show the court a court of record. 10 Enc. Er. pp. 1017-1018; 15 R. C. L. 592; 167 N. Y. Supp. 154; 163 N. Y. S. 70. Any one of the judges may certify to the record. 10 Enc. Ev. 1024-1028; 47 How. Pr. (N. Y.) 470; 18 N Y 86; 14 La Ann 392; 9 Ala 716 The municipal court code, § 125 dispensed with the requirement of formal decision preceding entry of formal judgment. The judgment was signed by the judge and the required certified copies of pleadings etc. accompanied the transcript. 47 Ark. 120; 70 Ark. 343; 90 Ark. 199. The entry is sufficient as it shows that the issue was passed upon. 99 Ark. 433; 15 R C. L. 592-3; 15 Stand. Proc. p. 22 et seq. 46 Hun. 201; 21 N. Y. Sup. Ct. 448; 92 N. Y. S. 51, 101 App. Div. 500- There is no variance between the complaint and judgment. Default judgment carries costs with it, and they were added. 85 N. Y. 253. Substantial compliance with the statute as to mode of entering judgment and filing same is all that is necessary. 17 N. Y. 445 ; 9 How. Pr. 86; 25 N. Y. 489; 52 N. Y. 434. Appellant’s objection to the form of the judgment comes too late. 234 U. S. 738, 34 Sup. Ct. 902, 58 L. Ed. 1570. Presumption is in favor of authority of attorney to enter appearance. 6 C. J. 636; 23 Cye. 917; 155 Fed. 835; 36 Neb 749; 84 Ark. 527. His authority may be proved by himself. 2 Enc. Ev. 147; 59 Mich. 210; 111 111. 100.
   Smith, J.

This is a suit brought by Morris Schiff and Louis Schiff, copartners, doing business in the city of New York under the firm name of M. Schiff & Bro., against the Heinemann Dry Goods Company, a domestic corporation engaged in the dry goods business at Jonesboro, on a judgment which the plaintiff alleged it had recovered in the municipal city court of New York, borough of Manhattan, ‘Third District, against the defendant. The cause was submitted to the jury, and there was a verdict and judgment for the plaintiff, from which the defendant has appealed.

It is first insisted, for the reversal of the judgment of the court below, that the court erred in admitting in evidence the transcript of the judgment and the pleadings on which the action was based, it being insisted that the document which purports to be a judgment is a mere finding of the court, which might be sufficient to authorize the entry of a judgment, but which is not a judgment.

In answer to this contention it is said that no such issue was raised by the pleadings. The allegation of the answer is that “it (the defendant) denies that judgment was entered by said court in favor of the plaintiff for the sum of $435, or any other sum.”

Had the question of the sufficiency of the judgment in form been raised in the court below, this objection might have been met by a showing of its sufficiency, as that the judgment had not in fact been correctly copied, or otherwise amending the transcript to show that it was in fact sufficient. At any rate, the question cannot be raised here for the first time, and we think the allegation of the answer set out above did not raise this specific issue in the court below.

The complaint appears to have conformed to the requirements stated in the case of McCarthy v. Troll, 90 Ark. 199, where the court said: “To maintain an action on a judgment against a plea of nul tiel record, a certified copy of the judgment is not sufficient, but all the pleadings and proceedings on which the judgment is founded, and to which, as matter or record, it necessarily refers, must be produced.”

The suit in the New York Municipal Court, as appears from the pleadings in that case, was on an account for $390, for which judgment was prayed, together with interest from the 6th day of December, 1920. The judgment for the plaintiff was for $415.80, which presumptively included the interest, and, in addition, there were three items of costs .aggregating $19.

Objection was made to the introduction. of the authenticated transcript for the reason that the document purporting to be a judgment recites liability in favor of a partnership, whereas the pleadings showed an action by the individual members of a partnership. This assignment of error is answered by saying that the complaint in the original ease, after reciting the names of the plaintiff, alleges that“ they are a copartnership doing-business under the firm name and style of M. Schiff & Bro.”

The introduction of the transcript was also objected to upon the ground that the purported judgment was signed by John Hoyer, Judge Municipal Court, whereas the authentication is signed by William J. A. Caffrey, Judge Municipal Court.

The practice and procedure of these courts was prescribed by chapter 279 of the Session Laws of New York for the year 1915. This act provides for twenty-four divisions of this court, with a judge for each division, and further provides that the judges shall rotate in holding- the courts in these divisions, so that no judge sits in one division exclusively.

Hoyer appears to have rendered the judgment of the municipal court as the judge then presiding. At the time of the authentication of the transcript, as required by the act of Congress, Caffrey was then presiding as the judge of this division, according to the certificate of the clerk of that division, and this is sufficient.

The introduction of the transcript was also further objected to upon the ground that the municipal courts of the city of New York are not courts of record and do not come within the act of Congress for the authentication of judicial records and proceedings — that these courts correspond to our justice of the peace courts, and the proof of the judgment should have been made accordingly.

Section 1 of § 279 of the 1915 Session Laws of New York, being “An act in relation to the municipal court of the city of New York, * * expressly declares that it shall be a court of record, and § 8 thereof provides that the justices thereof may provide rules regulating the manner of keeping the records and papers thereof. Section 11 of the act provides what the seal of the court shall contain; and § 13 confers authority to punish for civil and criminal contempts; and § 143 prescribes the duties of each of the clerks of the courts.

These courts were held to be courts of record by the Supreme Court of New York, appellate term, First Department, in the case of Duringshoff v. O. B. Coates & Co., 157 N. Y. Supp. 230.

Appellant further contends, for the reversal of the judgment, that it was in effect obtained by fraud; that proper service was not had, and its appearance in the New York court was entered without authority

Summons was served on the president of the appellant corporation while he was in New York city on business, and it is conceded that this service was insufficient to confer jurisdiction of the cause on the municipal court of that city, but it is insisted that the appearance of the defendant was entered by its attorney in that court.' In support of this contention the deposition, of Henry Levis, an attorney of that city, was offered in evidence. The purport of this deposition was that Ben Levis was the purchasing agent of appellant in New York, and had made the purchase out of which the litigation arose. After the controversy arose, Ben Levis employed Henry Levis, his brother, who was an attorney practicing in the municipal court of New York, to represent appellant, and the deposition of Henry Levis exhibited the correspondence he had with appellant by which he was authorized to enter the appearance of appellant, and that, pursuant to this authority, he entered appellant’s appearance, and had secured a number of continuances of the cause.

The objection to the admission of this deposition is that the correspondence between appellant and Henry Levis is privileged as a communication between an attorney and his client. We think, however, this testimony was competent. The serious charge was made against the attorney that he had entered the appearance without authority, 'and it was no violation of the privilege for the attorney to testify that he did enter appellant’s appearance, and was authorized to do so, and, in support of that statement, to exhibit letters conferring that authority. Vol. 2 Enc. Ev., Attorney & Client, p. 147; Eckman v. Meyers & Trall, 12 N. W. 347.

It is finally objected that the court erred in giving an instruction numbered 3, which reads as follows: “ You are instructed that if you find the defendant authorized Ben Levis to employ Henry Levis to do what things might be necessary in connection with the suit filed, and, pursuant to that authority, Ben Levis did employ Henry Levis as attorney, the Heinemann Dry Goods Company was bound by his action pursuant to such employment. ’ ’

We presume the purpose of this 'instruction was to tell the jury that the attorney had the authority to enter the defendant’s appearance in court if this act was within the scope of his employment. At any rate, only a general objection was made to the instruction, and the objection now urged to it is that there is no testimony tending to show that Ben Levis had any authority to act for appellant in the employment of counsel.

The president of the appellant company, upon whom the service was had, admitted that he delivered the summons to Ben Levis, who was and is its purchasing agent at New York city, and that he asked Ben Levis what to do about it, and Ben Levis told him he would .straighten the matter out..

We think the testimony of Henry Levis, in connection with the correspondence which occurred between him and appellant, is legally sufficient to prevent this instruction from being held objectionable as abstract, and that this testimony is legally sufficient to support a finding that Henry Levis fiad, in fact, been employed fiy defendant as its attorney, and fiad tfie authority to enter its appearance.

No error appearing, the judgment is affirmed.


author: Humphreys, J. Humphreys, J.,

text:
    Breckenridge v Weber Dry Goods Company.
    Opinion delivered February 2, 1925.
    1. Executors and administrators — sufficiency of statement of accounts. — A statement of an account against ¡an estate, setting out the amounts of shipments of merchandise as of certain dates, and the credits thereon, held sufficiently itemized under .Crawford & Moses’ Dig., § 100.
    2. Executors and administrators — presentation of claim. — Mailing a statement to the administratrix of an estate and receipt by her of the same is a sufficient presentation, as required toy Craw- ■ ford & Moses’ Dig., § 100.
    3. Executors and administrators — sufficiency of yerication of claim,. — Under Crawford & Moses’ Dig., § 103,' requiring claims of corporation to be verified by the cashier or treasurer, verification of a claim by the cashier of a corporation is sufficient, though he describes himself in the affidavit as “bookkeeper.”
    4. Executors and administrators — form of authentication.— Verification of a claim against an estate containing a clause “that the above account is true and just and unpaid after allowing all due credits and set-offs,” held a substantial compliance with CraYYford & Moses’ Dig., §§ 101, 104, requiring statement “that he has made diligent inquiry and examination, and he does verily toelieve that nothing has been paid except the amount credited, and that the sum demanded is justly due.”
    Appeal from Greene Circuit Court, First Division; G. E. Keek, Judge;
    affirmed.

      Huddleston & Little, for appellant.
    There was no presentation of tfie demanded to tfie administratrix for allowance as required fiy law. C. & M. Digest §§ 108 and 110. Tifie statement of accounts is not itemized as required fiy § 100 C. & M. Digest. To itemize is to state in items or fiy particulars. 42 N. E. 600; Words & Phrases Vol. 4, p. 3797; 18 So. 919; 128 Fed. 111. Tfie affidavit appended to tfie statement is wholly insufficient. 97 Ark. 548. §§ 103, 104 C. & M. Digest, 69 Ark. 618; 146 Ark. 321; 105 Ark. 98. The statement of account and affidavit were jurisdictional and not subject to amendment at the time of the trial: 48 Ark. 361; 153 Ark. 77; 65 Ark. 6; 18 Cyc. 485; 13 Ark. 507; 97 Ark. 549; 25 Ark. 326; 21 Ark. 319; 41 Ark. 149; 23 Ark. 644; 31 Ark. 314.

      H. W. Applegate, for appellee.
    Mailing of the anthenticated statement to the administratrix was a proper presentation to her. 127 Ark. 505; 150 Ark. 577. It was not necessary for appellee to file the claim with the clerk of the probate court before bringing the action. 124 Ark. 473. In presenting a claim it need not be in any particular form, but only so as to give notice of its character and amount to enable the administrator to provide for the payment. 11 it. C. L. p. 194; 108 Ark. 178; 168 Mo. Ap. 325; 153 S W. 1084. The facts in the cases cited by appellant in 95 Ark. 548, 69 Ark. 68, 146 Ark. 321, 105 Ark. 98, are entirely different from the case at bar and are not applicable. The affidavit substantially complied with §§ 101 and 104 of.C. & M. Digest. 134 Ark. 197; 90 Ark. 342. A substantial compliance is all that is required. 16 Ark. 2'2; 97 Ark. 296; 105 Ark. 95; 124 Ark. 466; 127 Ark. 404. See also 33 N. W. 881.
   Humphreys, J.

The question involved on this appeal is whether the statement of account mailed by appellee to appellant on June 25, 1922, was a sufficient presentation in law of the statement of an account to an administrator of the estate of a deceased person. The deceased, J. A. Smelser, died February 22, 1921. His widow, the appellant herein, qualified as administratrix of his estate a short time after his death, and gave notice to his creditors to present thei? claims. Pursuant to the notice appellee, a corporation, mailed its claim to appellant in form and figures as follows:

“Cairo, Ill., June 21, 1921.
“Mrs. Zona Smelser,
“Beech Grove, Ark.
“Dear Madam: As we have not received an acknowledgment of onr claim, we are sending herewith statement and affidavit covering onr account, to he filed with the prohate court. “Yours truly,
“Weber-Wolters Dry Goods Co.
“Statement.
“Mrs. Zona Smelser, Admx., Estate of J. A. Smelser, Beech Grove, Ark. in account with
Weber-Wolters Dry Goods Company Importers and Jobbers Dry Goods and Notions
Date, 1920 715 Ohio St.
July 29 Mdse........................................................................$700.77
Aug. 16 Mdse.............................. 147.37
Aug. 30 Mdse......................................................................... 147.50
Oct. 1 C-M................................................................................. $ 74.40
Nov. 4 Ck.................................................................................. 300.00
Nov. 22 C-M.............................................................................. 117.55
$503.69
“State of Illinois, Alexander County.
“H. B. Warden, being first duly sworn, on his oath declares and says that he is a resident of the county and State aforesaid; that he is bookkeeper for the firm of ■Weber-Wolters Dry Goods Company; that the above account is true and just and unpaid, after allowing all due credits and set-offs. “II. B. Warden.
‘ ‘ Subscribed and sworn to before me this 21st day of June, A D., 1921. James B. Wall, notary public. My commission expires May 1, 1924.” (seal).

Appellant received the statement, but did not formally approve it and file it with the clerk of the probate court, for classification.

Deceased, a retail merchant in his lifetime, purchased merchandise from appellee’s predecessor, a wholesale merchant. When he died his wife took charge of the store and operated same in the capacity of administratrix. There was quite a little correspondence between appellee and appellant relative to the claim. The substance of this correspondence was to the effect that, while the claim was correct, she could not pay it until she got ready to settle up the estate and until her lawyer advised her to pay the account. The testimony in the case shows that H. R. Warden, who verified the account, was cashier as well as bookkeeper of appellee.

Suit was brought by appellee upon the claim in the circuit court of Greene County, First Division. The sufficiency of the presentation of the account was challenged by appellant.

Upon the hearing of the cause the court ruled that the account was sufficient in form and properly verified, and rendered judgment against appellant, as administratrix of the estate of J. A. Smelser, deceased, in the sum of $589.80, with interest from October 1, 1923, at the rate of 6 per cent, per annum, from which is this appeal.

Appellant first contends for a reversal of the judgment because the account was not itemized. By reference to the items charged in the account it will be seen that said items consist of bills of merchandise of certain amounts, without setting out the particular things embraced in the order. It is a matter of common knowledge that wholesale houses render bills of invoice with each shipment of goods to merchants, and, when rendering statements, they do so by setting forth the different kinds and quantities of goods shipped. These invoices were likely in the possession of appellant, who took possession of the stock of goods and continued to operate the business. The statement of the account embraced the credits as well as the items of the account stated in general terms, and sufficiently complied with the requirement of § 100 of Crawford & Moses’ Digest. Josephs v. Briant, 108 Ark. 171.

Appellant next contends for a reversal of the judgment because the statement was mailed to the administratrix, instead of being personally presented to her. The mailing and receiving of said statement by appellant constituted a sufficient presentation of the claim to her, within the meaning of the words “by delivering” used in § 100 of Crawford & Moses’ Digest. Keffer v. Stuart, 127 Art. 498; Friend v. Patterson, 150 Ark. 577. Appellant admits that she received the statement of the account through the mail.

Appellant next contends for a reversal of the judgment because the statement of the account was made by the bookkeeper of appellee instead of the cashier. Section 103 of Crawford & Moses’ Digest requires that the cashier or treasurer of the corporation shall verify the account before same is presented to the administrator for allowance. The testimony shows that the affiant to the account was not only the bookkeeper but also the cashier of appellee. It was proper for the court to treat the affidavit as having been made by the cashier, notwithstanding it was verified by him as bookkeeper. He acted in a dual capacity for the corporation.

Appellant’s next and last contention for a reversal of the judgment is because the affidavit does not follow the exact wording of §§ 101 and 104 of Crawford & Moses’ Digest. Sections 101 and 104 of Crawford & Moses’ Digest are as follows:

Section 101. “And the claimant shall also append to his demand an- affidavit of its justice, which may be made by.himself, or an agent, attorney, or other person. If made 'by the claimant, it shall state that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due. If made by any other person, it shall state that the affiant is acquainted with the facts sworn to, or that he has made diligent inquiry and examination, and that he verily believes nothing has been naid or delivered toward the satisfaction of the demand, except the amount credited thereon, and that the sum demanded is justly due.”
Section 104. “When an affidavit shall be required to be made by an officer of a corporation, executor, administrator, or assignee, it shall be sufficient to state in such affidavit ‘that he has made diligent inquiry and examination, and that he does verily believe that nothing has been paid except the amount credited, and that the sum demanded is justly due’.”

A substantial compliance with the statute is all that is required. Eddy v. Loyd, 90 Ark. 340; Keffer v. Stuart, 127 Ark. 498. It was ruled in the case of Willard v. Willard, 134 Ark. 197, that the statement to the effect that a defendant was a nonresident of the State of Arkansas was sufficient upon which to obtain a warning order under a statute requiring a plaintiff to make an affidavit that “he had made diligent inquiry, and that it is his information and belief that the defendant is a nonresident of the State.” We think the positive statement of H. It. Warden, the cashier of appellee, to the effect “that the above account is true and just and unpaid, after allowing all due credits and set-offs,” is a substantial compliance with the statute requiring him to state “that he has made diligent inquiry and examination, and he does verily believe that nothing has been paid except the amount credited, and that the sum demanded is justly due.”

No error appearing, the judgment is affirmed.

Humphreys, J.,

(on rehearing). On motion for rehearing our attention has again been called to a number of cases holding that the affidavit of authentication to a claim against an estate is a prerequisite to an allowance thereof, and that it must conform to § 103 of Crawford & Moses’ Digest in substance. Ross v. Hine, 48 Ark. 305, and Carl Lee v. Griffith, 153 Ark. 77 are among the cases cited. We have examined the cases, and none of them reaches to the point involved in the instant case. In the instant case the affidavit was made by the right party in fact, the cashier, but he was designated as the bookkeeper. It would be exceedingly technical to hold that an incorrect designation of one who was entitled to make an affidavit would nullify the affidavit. The right party made the affidavit but made an erroneous title. iWe think under these circumstances the affidavit substantially complied with the requirements of the statute and was sufficient.

The motion for rehearing is therefore overruled.


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

text:
    O. L. Gregory Vinegar Company v. National Fruit Canning Company.
    Opinion delivered January 26, 1925.
    1. Trial — instruction ignoring issue. — In an .action by a seller to recover the price of fruit juice sold for use in making vinegar, where the defense was that the juice contained an excessive amount of saline solution, it was error to give an instruction that defendant was liable though the juice contained salt or other substances rendering it unfit for use in making vinegar.
    2. Trial — instruction ignoring issue. — In an action by a seller to recover the price of fruit juice sold for use in making vinegar an instruction ignoring issues and permitting the seller to recover, even though the juice contained an excessive amount of salt rendering it unfit for making vinegar, if the juice was extracted in the customary manner, was erroneous.
    3. Sales — implied warranty. — In a sale of fruit juice to foe used in making vinegar there is an implied warranty that the juice is suitable for that purpose, unless the purchaser actually inspected the method by which the juice was to be extracted or was advised as to such method.
    4. Sales — implied warranty. — Where a manufacturer undertakes to .supply goods manufactured by himself to be used for a particular purpose, and the vendee has not had an opportunity to inspect the goods, there is an .implied warranty that the article to be furnished is reasonably fit for the purpose for which it is intended.
    5. Sales — implied warranty — opportunity op inspection. — The purchaser of an article to be manufactured for a .specific purpose is not denied the benefit of the implied warranty that it is fit for the intended purpose merely because he may have had an opportunity to inspect the process of manufacture, but, if the purchaser does in fact inspect the article purchased and knows at the time he makes the contract what the article is to foe, there is no implied warranty.

      6. Pleading — time op making amendment. — It was within the trial court’s discretion to permit an amendment of a pleading after the trial had commenced.
    7. Sales — breach of contract — 'counterclaim.—In an action by a seller to recover the agreed price, the buyer could counterclaim any damages which proximately resulted from the seller’s breach of contract.
    Appeal from Sebastian Cirenit Court, Fort Smith, District; John E. Tatum, Judge;
    reversed.

      James B. McDonough, for appellant.

      Efill & FitsJmgh, for appellee.
    There is no warranty of the fitness of goods, express or implied, if the goods are inspected by the buyer, or if he has an opportunity to inspect the same and fails to do so, unless he is fraudulently imposed upon. 35 Cyc. 410 and cases cited in notes. This court has adopted that rule. 74 Ark. 144 and authorities cited.
    Where a known defined article is ordered of a manufacturer, and he furnishes such article, there is no implied warranty. Here the commodity purchased was well known, and was defined in the contract, the method of manufacture described. 35 Cyc. 403.
   McCulloch, C. J.

Appellee is a corporation operating an industrial plant at Seattle, Washington, engaged in canning fruit, and this is an action instituted in the circuit court of Sebastian County (Fort Smith District) to recover the price of a quantity of fruit juice sold to appellants under written contract. Appellants are engaged in making, and selling vingar at Paris Texas, and Rogers, Arkansas, and the contract between the parties for the sale of the fruit juice is, omitting the caption, as follows:

“The following goods are hereinafter provided:
“Material: Apple juice as pressed from the cores, peelings and waste from the apples used by the National Fruit Canning Company.
“Quantity: Estimated 50,000 gallons, with the understanding that it shall be more or less, depending upon the quantity, if any, that may be pressed by the seller in addition to the contract which the seller has already made with Bergonst Davies Co.
“Purpose: Not for beverage purposes, for vingar making.
“Price: Eight cents (8c) per gallon net f. o. b. Seattle, loaded in cars 60,000 lbs. each or more.
“Period: ,As soon as buyer can provide barrels for filling not later than November 2-5', 1921, and shipments to start not later than December 1. Expense of delivering barrels for filling shall be borne by the buyer, who is also to pay for the dunnage.
“Terms: Net cash. Sight draft against bill of lading. ’ ’

Appellee shipped to the Ozark Cider & Vinegar Company, at Rogers, Arkansas, on the order of appellants, under this contract, four carloads of apple juice, containing about 27,000 gallons, and this suit is to recover the price specified in the contract. The shipment was received at Rogers, but it was found on examination, according to the claim of appellants, that the juice' contained salt solution in quantities sufficient to interfere with the manufacture of vinegar, and appellants refused to pay for ¡same, and stored it in tanks at Rogers, to be held for appellee.

Appellants’ defense in the action is that the fruit juice tendered and delivered was not in accordance with the specifications of the contract, and that there was a breach of the contract in failing to furnish juice suitable for the manufacture of vinegar. Appellants tendered a counterclaim for damages on account of the price of barrels furnished to appellee and converted, also for the amount of freight paid on the four carloads shipped, and also for the loss of profits on the contract alleged to have been broken by appellee.

The amount sued for was $3,003.34 but, on the trial of the issue, the jury returned a verdict for $1,740.84, being the amount claimed in the complaint after deducting the value of 505 barrels furnished by appellants to appellee in addition to those used in the shipment of the four carloads.

The evidence discloses in detail the method used by appellee and other fruit-canners in preparing apples for canning and for extracting the juice to be used for other manufacturing purposes. According to the evidence adduced by appellee, the apples were first peeled and cored and then dropped into barrels of water containing a small percentage of salt for the purpose of preventing the. apples from turning brown; the apples were allowed to remain in the water about fifteen minutes, and were then taken out and cut into halves or quarters, and then “trimmed” by removing’bruised spots and particles of skin left on the apples in process of peeling. The particles trimmed in the manner and for the purposes indicated go into what is termed the waste, and, together with the peelings and cores, are used in obtaining juice for other manufacturing purposes. The juice is usually sold for use in making vinegar, and it will be noticed that the contract involved in this controversy expressly provided that the juice sold under the contract was for vinegar-maldng and not for beverage purposes.

There is a sharp conflict in the testimony as to the extent of the salt permeation in the juice sold and delivered to appellants. The testimony of witnesses introduced by appellee tends to show that there was a very low percentage of salt in the solution, which did not interfere with the making of vinegar, whilst, on the other hand, the testimony adduced by appellants tended to show that the extent of the salt solution was 48 per cent, of the whole. One of the witnesses for appellant put the percentage at .376, and testified that this percentage prohibited the use of the juice for making vinegar. Witnesses testified that the juice shipped to appellants was not normal, either in taste or color, and that the taste of salt was so strong that it could not be used in making vinegar.

The testimony shows that the contract was entered into after Mr. Maury Robinson, one of the appellants, had visited appellee’s plant at Seattle. There is a conflict as to the extent of Robinson’s inspection of appellee’s plant and method of operation. A witness introduced by appellee testified that Robinson inspected the whole plant, and knew the precise process under which the fruit juice was extracted, as well as the substances from which it was extracted. Robinson ttstified that, on his visit to the plant, he did not inspect the particular method of extracting the juice and did not know that any' portion of the substances from which the juice was extracted had been immersed in salt water.

The court gave many instructions, at the instance of both parties, and gave the following, among others, at the request of appellee, over the objection of appellants :

“5. The contract provided for the sale of apple juice pressed from cores, peelings and waste from the apples used by the National Fruit Canning Company. If you believe from the evidence in this case that the apple juice tendered by the plaintiff to the defendant, vinegar company was juice as pressed from the cores, peelings and waste from the apples used by the plaintiff company, then you should find for the plaintiff, although you may believe from the evidence that said juice contained salt or other substances.
“6. If you believe from the evidence in this case that plaintiff adopted the usual and ordinary method generally prevailing in that part of the country in extracting juice from the cores, peelings and waste of its apples, and that it was usual and ordinary in that part of the country to drop the apples in a brine solution after they had been peeled and cored, and then to trim the waste parts of such apples and extract the juice from such cores, peelings and waste, and that such usual and ordinary method was adopted by the plaintiff with reference to this juice, and that the juice tendered was extracted in such usual and ordinary method, then your verdict should he for the plaintiff fruit company, although you may further believe from the evidence that such juice contained an excessive amount of salt.”

We are of the opinion that instruction No. 5, copied above, was an incorrect statement of the law as applied to the issues in the case, and was, in fact, of a peremptory nature. It was prejudicial to appellants, and calls for a reversal of the judgment.

It is the contention of learned counsel for appellee that the contract between the parties was, in effect, one for the purchase of a certain commodity, the quality and price of which was agreed upon, and which the purchaser had an opportunity to inspect, and did inspect. We do not so interpret the contract, and our conclusion is that it was a contract for the sale of a commodity for a particular purpose. At any rate, instruction No. 5, quoted above, ignores the issue in the case as to whether or not the juice actually furnished by appellee was fit for use in making vinegar. The instruction ignored all questions as the character of the juice, and told the jury that, if it was apple juice that was pressed from the cores, peelings and waste from the apples used by appellee, then the latter was entitltd to recover, ‘‘ although you may believe from the evidence that said juice contained salt or other substancs.” It is undisputed that the juice shipped by appellee was pressed from the cores, peelings and waste” used in appellee’s cannery, but there was a conflict in the testimony as to the extent to which the liquid was permeated by solution of salt and the extent to which the salt interfered with the making of vinegar. Testimony adduced by appellants tended to show that the juice was 48 per centum salt solution, and that it could not be used for making commercial vinegar, and yet this instruction told the jury that, regardless of the fact that the juice contained salt or other substances, appellee was entitled to recover if the juice in question was extracted from the “cores, peelings and waste” used by appellee in its cannery. The instruction was obviously erroneous and was, of course, prejudicial.

Instruction No. 6 was also erroneous in ignoring the other issues in the case and in telling the jury that, if it was customary to drop the apples into a brine solution after being peeled and cored and the .juice involved in this case was extracted in that manner, appellee would be entitled to recover, even though the juice contained 'an excessive amount of salt.

It is true that the court gave numerous instructions at the request of appellants, but these two instructions were in direct conflict with those given at the request of appellants. For instance, the court gave instruction No. 3, at the request of appellants, as follows:

“If the jury find from the evidence that the plaintiff shipped and tendered on said contract apple juice which contained salt or brine in such a per cent, as would interfere with the making of vinegar, then the plaintiff did not tender the products agreed to be sold, and if the juice tendered contained too much salt solution and was not the juice described in the contract, then the plaintiff-broke the contract, and would not be entitled to recover. ’ ’

The court also gave instruction No. 5, as follows:

“The contract expressly provides that the juice is to come from cores, peelings and waste ‘from apples used by the National Fruit Canning Company.’ That provision does not authorize the National Fruit Canning Company to place salt water or brine in said juice, if they did so.”

It will readily be seen that the other instructions were directly in conflict with these.

Objection was also made to the following instruction given at the request of appellee:

“10. If you believe from the evidence that the defendant Maury Bobinson, at or before the time the juice was purchased, inspected, or had -an opportunity to inspect, the apple juice that was being made by the plaintiff and was shipped to the defendants, then you are instructed that there was no warranty by the plaintiff that the apple juice was suitable or fit for vinegar, and your verdict should be for the plaintiff.
“11. If you find from the evidence that Mr. Robinson, representing the defendants, visited the plant of the plaintiff at or before the time of his maldng the contract in question, and observed, or had an opportunity to observe, the process employed in making the apple juice in question, the defendants cannot be heard to say that they were deceived or misled as to the character of apple juice produced by the plaintiff, and if you further find from the evidence that the apple juice shipped the defendants by the plaintiff was apple juice pressed from the peels, cores and waste of apples canned by the plaintiff in the usual and ordinary course of its business at Seattle, Washington, then your verdict should be for the plaintiff.”

The contention of appellee, as before stated, is that this was a contract for the sale of a particular commodity, which appellants had an opportunity to inspect and did inspect, and that there was no implied warranty as to quality. We do not agree with counsel as to the effect of the contract, but, as before stated, we think that it was one to furnish a commodity for a particular use, and that there was an implied warranty that it was suitable for the particular use for which it was purchased, unless the purchaser actually inspected the method by which the commodity was to be produced, or was advised as to such method and what the contents of the juice would be. The rule has often been announced by this court that, where a manufacturer undertakes to supply goods manufactured 'by himself, to be used for a particular purpose, and the vendee has not had an opportunity to inspect the goods, there is an implied warranty that the article to be furnished is reasonably fit for the purposes for which it is intended. Western Cabinet & Fix. Mfg. Co. v. Davis, 121 Ark. 370, and cases cited. The reference in tins rule to the opportunity of the purchaser to inspect refers to the inspection of the particular article to he furnished, and not to opportunity to inspect the method by which the manufacturer produces the article. The purchaser of an article to be manufactured is not denied the benefit of an implied warranty merely because he may have had an opportunity to inspect the process of manufacture, but, if the purchaser does in fact' inspect and knows at the time he makes the contract what the article is to be, there is no implied warranty. The purchaser has the right to assume, when he has had no opportunity to inspect the article itself, that it will be manufactured so as to be fit for the use for which it is intended.

There is, as before stated, a conflict in the testimony as to the extent of the inspection made by Maury Robinson, one of the appellants. According to the testimony introduced by appellee, Robinson in fact inspected the method of producing the juice, and knew at the time he entered into the contract that the juice was to be pressed out of apples which had been subjected to a solution of salt. On the other hand, Robinson testified that he did not inspect the process and did not know that the juice would be contaminated by a solution of salt.

There are many other assignments of error which we do not deem it necessary to discuss, for it is believed that what has been said in this opinion will be sufficient guide in a retrial of the cause.

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

McCulloch, C. J.,

(on rehearing). Appellants insist that we should, for guidance in the further proceedings on remand of the cause, decide whether or not the court erred in sustaining a demurrer to the counterclaim for damages and in refusing to allow appellants to amend. We assume that the court’s refusal to permit an amendment was based on the fact that the offer to amend was not made in apt time — not until the trial had b§eu, commenced. It was thus a matter of discretion, and, since we have remanded the 'Cause for further proceedings, it is not important to determine whether or not there was, under the circumstances, an abuse of discretion by the court. The circumstances will be different when the case goes back to the trial court, for appellants will have .an opportunity to present the amendment in apt time without interfering with the preparations for trial, and it is to be assumed that the court will fairly exercise its discretion by allowing an amendment properly' presenting a counterclaim. This view of the matter makes it unnecessary to determine whether or not the original counterclaim stated a cause of action.

The statute permits a counterclaim against the plaintiffs or either of them in any action for the recovery of money. Coats v. Milner, 134 Ark. 311; Smith v. Glover, 135 Ark. 531.

If appellee broke the contract, which is an issue in the case, appellants are entitled to recover any damages which, under settled principles of law, proximately resulted from such breach.


author: Per Curiam :

text:
    Humble Oil & Refining Company v. Bearden.
    Opinion delivered January 26, 1925.
    ON motion to dismiss appeal.
    1. Judgment — res judicata. — An order of the trial court overruling a motion to correct the record, which stated the facts upon Which a correction of the record was sought, constituted a final judgment from which an appeal might be taken, and was res judicata upon .same state of facts, and the fact that the order stated that the facts recited in the motion were true and yet overruled same was mere error which could ib.e corrected only on appeal.
    2. Appeal and error — effect of order postponing hearing.— Where an order of the trial court .overruling a motion to correct the record constituted a final judgment from which no appeal was taken, and was res judicata as to a .subsequent motion, to correct the same record alleging the same facts, an order of the Supreme Court, postponing a hearing on appeal of the case and granting permission to either party to apply to the trial court for. correction of the record, did not enlarge the power of the trial court or tend to undo the action of the court in overruling the motion to correct the record.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    motion to dismiss overruled.

      Gcmghan & Sifford and Price Shofner, for appellant.

      Oldham & Wade and George B. Eaynie, for appellee.
   Per Curiam :

Appellee was the plaintiff below, and recovered against appellant a money judgment as compensation for personal injuries alleged to have been caused by negligence. The judgment was rendered on October 25, 1923, and later during the term appellant filed a motion for a new trial. There was a final adjournment for the term on December 12, 1923, and the transcript lodged here by appellant duly certified by the clerk, contains an order as of the last day of the term, overruling appellant’s motion for a new trial and granting an appeal and time within which to file a bill of exceptions. Appellee subsequently filed a motion to dismiss the appeal or affirm the judgment, on the ground that the motion for a new trial was not presented to the court for a ruling thereon, nor was the order overruling the motion for a new trial made during the term, but was made by the judge in vacation, and was erroneously entered on the record by the clerk as of the last ¡day of the term. On consideration of this motion this court entered an order on June 30, 1924, postponing further consideration, with permission to either of the parties to apply to the trial court for a correction of the record so as to show whether or not the motion for a new trial was acted on during term time.

On July 3, 1924, appellee filed a motion in the circuit court to amend the record nunc pro tunc so as to show that the order of December 12, 1923, overruling the motion for a new trial, was not in fact rendered by the court on that day, but was a vacation order. Appellant appeared to resist the motion and filed an answer alleging, among other things, that appellee had, on May 7, 1924, filed a similar motion, winch the court had overruled, and pleaded the former ruling as an adjudication of appellee’s right to have the record amended as to the particular order mentioned. Appellant exhibited with its answer a copy of the former proceedings of the court. On the hearing of the motion, the court granted the prayer, and entered an order nunc pro tunc, reciting that the order overruling the motion for a new trial was not in fact rendered by the court on the day mentioned or during the term of the court, but was rendered in vacation. Appellant has brought the record of that additional preceeding to this court by appeal.

The contention of counsel for appellant is that the order made by the court on May 7, 1924, was an adjudication and bar to further proceedings on the part of appellee to. obtain a correction of the record in the particulars mentioned. We are of the opinion that the contention of counsel is correct, for we perceive no reason why the adjudication on the question of the correction of the record should not bar subsequent inquiry into the same matter, if the two applications are based on the same state of facts. If such were not the case, a ruling of a court in matters pertaining to the record would never become final, but would remain within the control of the court. We think that an order of court on a motion stating the facts upon which a correction of the record is sought constitutes a final .judgment, from which an appeal may be taken, and which bars any further adjudication of that particular question upon the same state of facts.

It appears from the record that there was a peculiarity in the order of May 7, 1924, in that it recited a finding of the court that the facts recited in the petition were true, but the court proceeded nevertheless, and overruled the petition. The trial judge subsequently made an amendment to this order by striking out the words expressing a finding that the facts recited in the petition were true, and it is contended that this correction was beyond the power of the trial judge, for the reason that it was made in vacation. Without going into the question concerning the effect of this action of the trial .judge in attempting to change the form of the order in vacation, we conclude that, if the order be accepted in the form contended for by appellee, containing a recital of the finding by the court that the facts were true, yet the prayer of the petition was overruled, and, at most, the order was merely erroneous, and could have been corrected only by appeal. There was no appeal prosecuted in that case, and, as before stated, we think that the judgment overruling the petition to amend the record was final and conclusive.

Counsel for appellee seek to uphold the last order of the court and to escape the effect of the former adjudication on the ground that the order of this court postponing the case and granting permission for either party to apply to the court for a correction constituted an adjudication of the continuing power of the circuit court to make the order. In other words, the contention is that the order of this court granted to the parties the right.to get an order of correction from the trial court, and that this averted the effect of the former order of the trial court as a bar to further proceedings. We do not agree with counsel in this contention, for the effect of the order of this court was merely a postponement of the case to give the parties an opportunity, if the way was still -open, to secure a correction of the record in the trial court. The order made here did not in any respect enlarge the powers of the trial court or tend in any degree to undo what the court had already done.

The last order of the circuit court amending the record is therefore reversed and quashed, and the motion to dismiss the appeal or affirm the judgment is overruled.