author: Hart, J., Hart, J.

text:
    Drummond v. Batson.
    Opinion delivered February 4, 1924.
    1. Appeal and error — decision on former appeal. — Where it was held upon a former appeal that a partnership existed, such holding is the law of the case on a subsequent appeal.
    2. Partnership — exclusion of partner — liability for profits.— Where a partner, before expiration of the time limit of the partnership, wrongfully excluded his copartner from participation in the business, and, after such time limit, continued to use the partnership property in conducting the business, he will be liable to account to his copartner for the latter’s share of the profits until the partnership is legally dissolved.
    3. Partnership — good faith. — Partners are hound to conduct themselves with good faith towards each other, and the partnership property cannot be used for the private gain of one of the partners to the exclusion of the others.
    4. Partnership — -exclusion of partner — liability.—Where plaintiff and defendant operated a hotel under a lease not providing for its renewal, and defendant wrongfully excluded plaintiff from participating in the business, and thereafter, ¡by reason qf his exclusive possession, secured a renewal of the lease and continued to use the partnership property, plaintiff was entitled to participate in the profits of the business under the new lease until a legal dissolution.
    5. Lis pendens — purchaser with actual notice — A purchaser of an interest 'in partnership property from one of the partners, pending a suit for dissolution and accounting of which he had actual knowledge, is not an innocent purchaser, but is a constructive trustee, and liable to account to the other partner, notwithstanding no Us 'pendens was filed, as required by Crawford & Moses’ Dig., § 6979.
    6. Partnership — purchase of partner’s interest. — One who, pending a suit between partners for an accounting, with actual notice, purchased an interest in the partnership property from one of the partners, held subject to the rule that a trustee cannot profit from the estate for which he acts.
    7. Equity — plaintiff must do equity. — Where a partner, wrongfully excluded 'by his copartner from participation in the operation of a hotel, elected to share in the profits until the partnership was legally dissolved, the other partner and one to whom he sold the business were entitled to compensation for managing the business, and the expenses of receivership and accounting should be divided, following the maxim that he who seeks equity must do equity.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    This is an appeal from a decree of the chancery court winding- up and settling the affairs of a partnership and distributing- its assets to the persons entitled thereto.
    The suit was commenced .in the chancery court by N. W. Drummond against S. H. Batson on June 7, 1922. Drummond asked for a judgment against Batson upon certain promissory notes for the amount of $5,000, and for the foreclosure of a lien on Batson’s half interest in the furniture and fixtures of the Garrett Hotel in El Dorado, Arkansas, to secure said indebtedness.
    Batson filed an answer and cross-complaint against Drummond on June 19,1922. He defended the suit on the ground that a partnership existed between himself and Drummond in operating the Garrett Hotel, and that his share of the profits of the partnership was more than sufficient to pay the notes sued on. By way of cross-complaint he alleged that Drummond had unlawfully prevented him from taking any uart in running the partnership business, and had denied that he had any interest therein. He asked that the business of the partnership. be wound up and that an account be stated between them. He asked for the appointment of a master to state the account, and for a receiver to take charge of the partnership property and wind up its affairs and distribute the proceeds arising- from the sale of the partnership property to the partners.
    On the 11th day of April, 1922, N. W. Drummond and S. H. Batson entered into a written agreement whereby the former sold to the latter a half interest in all furniture, fixtures and other property used in operating the Garrett Hotel in El Dorado, Arkansas, and also a half interest in a lease on the Garrett Hotel, which Drummond had already secured, and which terminated on the first day of January, 1923.
    According to the testimony of Batson, a partnership was formed between them for the purpose of operating the hotel, and both of them proceeded to discharge their respective duties in operating the hotel under the partnership. Subsequently Drummond denied that any partnership existed between them, -and excluded Batson from any share in the management of the hotel.
    On the other hand, Drummond denied that any partnership existed between them, and claimed that Batson owed him for the purchase price of a half interest in the furniture and. fixtures of the hotel, and had given him a lien on said property to secure the payment thereof.
    The chancery court refused to appoint either a receiver or a master, as prayed for in the cross-complaint of Batson. The chancellor, however, -did undertake to state an account between the parties, and, after entering a decree in favor of Drummond for the balance found to be due upon the notes sued on, ordered a sale of Batson’s interest in the property in satisfaction thereof. This decree was entered of record on the 22d day of. June, 1922. To reverse that decree Batson appealed to this court.
    Upon appeal it was held that, under the facts established in the chancery court, a partnershiu existed between Drummond and Batson for the operation of the Garrett Hotel. The decree of the chancery court was reversed, and the cause remanded with directions to appoint a master to state an account between the parties, in accordance with the opinion, and. to appoint a receiver to take charge of and wind up the partnership business. The opinion of the court was delivered by Judge Smith on March 26, 1923. Batson v. Drummond, 158 Ark.-29.
    Upon the remand of the case to the chancery court, a receiver and a master were appointed on the 26th day of April,, 1923. The receiver was directed to take charge of the hotel and the partnership business, and to wind up the partnership affairs. The master was directed to" state an account between the partners.
    During the pendency of the former appeal to this court, N. W. Drummond secured from R. N. Garrett, the owner of the hotel, a new lease, in writing, on it. The lease is dated November 3,1922, and runs from January 1,1923, to December 31,1923. On February 3,1923, N. "W. Drummond, by a contract in writing, -assigned and transferred to R. E. Harland the new lease, and, in the same instrument, conveyed to him all of the furniture, fixtures, and other personal property forming a part of the Garrett Hotel as then maintained and operated by N. "W. Drummond. N. W. Drummond had been operating the hotel during all of this time, and turned the same- over to R. E. Harland on February 3, 1923. R. E. Harland then operated the hotel until May 1, 1923, when, by the orders of the chancery court, he turned it over to the receiver. The receiver continued to operate it until it was sold by 'him, under orders' of the court, on June 30,1923. During all of this time there was an oil boom in El Dorado, Arkansas, and the hotel was operated at a profit. There was a continued rise in the rental value of property, especially of good hotel property like that in question.
    , The court considered the new lease for the year 1923, which Drummond had secured in his own name, to be a part of the partnership’s assets, and directed it to be sold, and it was sold by the receiver in -connection with the other assets of the partnership.

      The chancellor held that Batson was entitled to one-half of the net profits derived from the operation of the hotel from the time he was excluded from the partnership until the sale by the receiver of the partnership assets under directions of the court. This included the time that the hotel was operated by N. W. Drummond, by, R. E. Harland, and by the receiver.
    Other facts will be stated in the opinion.
    A decree was entered in accordance with the findings of the chancellor, and the proceeds derived from the sale of the property were directed to be distributed to the parties found to be entitled to them.
    N. W. Drummond and R. E. Harland have both appealed from the decree of the chancery court.

      Geo. B. Haynie and Goodwin £ Goodivin, for appellant Drummond.
    1. Batson estopped himself from claiming any interest in the lease for the year-1923. 136 Ark. 405; 153 Ark. 432, 243 S. W. 811.
    2. The partnership was dissolved as of the date of the filing of the cross-complaint by Batson, June 19,1922, and thereafter, until the expiration of the then existing lease on the Garrett Hotel, Drummond was a trustee of the lease for Batson until its expiration on December 31, 1922. 72 S. E. 638; 153 N. W. 522; 45 Pa. Super. Ct. 575; 110 Miss. 553.
    3. Since the contract which created the partnership was not a contract for any definite time, the relationship created was a partnership at will. 58 Mich. 476, 25 N. W. 472; 138 Pae, 544; 15 Ari. '280; 142 Pac. 194; 114 S. W. 260; 168 H. S. 328; 148 N. T. S. 801, 85 Misc. Rep. 510; 81 Ark. 68, 98 S. W. 685.
    Z7. L. Meade, W. E. EdivMns and Marsh £ Marlin, for appellant Harland.
    1. When, on February 3, 1923, Drummond sold to Harland the lease for the remainder of the year 1923 and the fixtures and furnishings, Harland thereby procured a good title to the lease for that year, and a good title to a one-half interest in the furnishings and fixtures. In none of the cases relied on by appellee lias it been held that, -when partners fall out and a suit is filed for dissolution of the partnership, either of them from that time is precluded from dealing solely for himself with respect to any property not then a part of the partnership assets. The litigation at once ends the relation of trust and confidence. The relation is broken when one partner sues the other for an accounting and winding up the affairs of the partnership'. 60 S. W. (Ténn.)‘619'.
    2. Notice of lis pendens was never filed concerning this lease, or calling it into question. C. & M. Digest, % 6979. While it has been held that actual notice of the pendency of a suit involving certain property given to one who expects to deal in it is as effectual as would be the filing of a notice of lis penclens, yet that does not extend to the point of holding that notice so given that a thing was involved in a certain suit, which was not in fact involved or described in such suit, was of any effect. Notice of a fact that does not exist cannot bind any one. 27 L. B». A. 449; 31 S. C. 527. There was no express agreement as to the duration of the time the partnership should last. By implication it was to cease when the lease that was jointly owned by Batson and Drummond terminated. 227 U. B. 57 Law. ed. 608. The suit pending was notice to Harland that the lease for the year 1922 was jointly owned by Batson and Drummond, that they were partners in the operation of the hotel under that lease, and that Batson owned a half interest in the furniture and fixtures, etc. It could not have been construed as notice that Batson claimed any interest in a lease for 1923. 8 Barb. 122, 27 L. R. A. 467, note, 1st col.; 12 Jones & S. 116; Collyer on Partnership, par. 160; 27 L. It. A. 483, note, 1st col.; 50 Mich. 401; 27 L. It. A. 484, note, col. 2.
    3. The procedure adopted against Harland amounted to depriving him of his property without due process of law. 47 L. It. A. 744. See also 4'2 Mich. 272; . 124 Fed: 61; 84 Cal. 327; 103 Cal. 297; 113 Ky. 751; 64 Fed. 443; 83 111. App. 514; 16 How. Pr. 527. The proceeding was summary, instead of a suit in equity wherein the issues between Harland and the receiver could be tried out apart from the rights of the other parties in the main proceeding. 107 Fed. 898, 899.

      McKay $ Smith, Mahony, Yocum é Saye, and J. N. Saye, for appellee.
    1. The partnership owned the lease for 1923. All assets of the partnership which the plaintiff seized and converted to liis own use remained partnership assets. Plaintiff held them as'trustee for the use of the firm. The trust as to the use of the partnership property remained attached to the lease, as well as the other -assets, since a part of the value of the lease was the expectation of renewal, a thing which is deemed so acthal and vital that when a new lease is had it is considered to be a graft on the old. 63 How. pr. 401; 16 R. C. L., § 413; 20 R. C. L. 880, § £3; note 32 L. R. A. (N. S.) 869; 12 Jones & S. 116; 61 Barb. 310; 18 Pick. 68; 17 Yes. Jr. 299; 18 Deg. M. & Q. 787; 2 Deg. M. & J. 173; 1 Macn. & G. 294; 51 N. Y. 357; Id. 274; 115 Pa. 129; 37 Pa. 360; 28 Am. Dec. 430; 3 Sandf. Ch. 131; 27 L. R. A. 483-4, note; 53 Ark. 152.
    2. The alleged sale from the plaintiff to Harland was void as to the defendant. This was a non-trading partnership. All of the property was employed in the business, and the latter could not be run without the property. Hence, one partner could not sell it, even to an innocent purchaser, without the consent of the other. 1 Rowley, Modern Partnership Law, § 44; Id., § 552; 20 R. C. L. 983. The intervener therefore was a trespasser when he took possession.
    3. , The intervener was not an innocent purchaser. He had actual knowledge of the pendency of the litigation between plaintiff and defendant, and purchased with knowledge thereof. He is bound by the subsequent orders and decrees of the court with reference thereto. Actual notice destroys the necessity of a lis penclens. 50 Ark. 305; 84 Ark. 282; 118 Ark. 144; 75 Ark. 228; 122 Arle 449; 128 Ark. 403. The plaintiff and the intervener should be treated as one in determining what defendant’s rights are in the subject-matter of this litigation. 227 U. S. 489.
    4. It was error to allow the plaintiff $2,500, and the intervener $750 as compensation for conducting the business while the litigation was pending. Defendant has a partner’s lien upon the shares of plaintiff and intervener in the property, business, profits and surplus, to secure payment of his share of the profits and surplus, and that lien is superior to any right, title, interest or equity that the plaintiff and interest may have therein. 2 Rowley, Modem Partnership Law, § 669; 1 Id., § 371; 20 R. O. L. ■ 1030, § 273; Id. 1032, § 274; 26 U. S. 585.
    5. The argument that intervener is being deprived of his property without due process of law is frivolous. If he had not voluntarily intervened, it would have become the duty of the court to bring him in. C. & M. Digest, § 1101.
   Hart, J.,

(after stating the facts). It is the contention of counsel for appellants, N. W. Drummond and R. E. Harland, that'S. H. Batson is not entitled to share in the profits from operating the hotel after the 31st day of December, 1922; that he is not entitled to share in the new lease, secured by Drummond from G-arrett for the hotel during the whole of the year 1923; and that he is not entitled to share in the profits made by R. E. Harland while he was operating the hotel from the 3d day of February, 1923, until the 1st day of May, 1923, when the receiver took charge of the hotel.

As we have already seen, it was held, upon the former appeal, that a partnership in the operation of the hotel existed between Drummond and Batson, and this is the law of the case.

It is first insisted that, inasmuch as the term of the original lease expired on the 31st day of December, 1922, this fixed a time for the termination of the partnership between Drummond and Batson, and that thereafter Batson is not entitled to receive any share in the profits derived from the continued operation of the hotel by Drummond or Harlancl. Treating the 31st day of December, 1922, as the time limit for the termination of the partnership between Drummond and Batson, we cannot agree with the contention of appellants that, under the facts of the case at bar, Batson is not thereafter entitled to share in the profits derived from running the hotel by Drummond and Harland.

On the former appeal it was held that Drummond wrongfully excluded Batson from any participation in the partnership business, and it was found that he continued to operate the hotel, using the partnership property, after he had denied that Batson was a partner and had excluded him from any voice in running the business or sharing in the profits thereof.

In Hartman v. Woehr, 18 N. J. Eq., 383, it was held that a partner, excluded from the business of the firm by the illegal acts of his copartner, is entitled to an account of profits, and to his share of them, until the partnership is legally dissolved, and is entitled to a decree of dissolution on the ground of such illegal exclusion from the business.

This principle was approved in Karrick v. Hannaman, 168 U. S. 328, where it was said that, in a court of equity, a partner who, after a dissolution of the partnership, carries on the business with the partnership property, is liable, at the election of the other partner or his representative, to account for the profits thereof, subject to proper allowances.

Again, in Zimmerman v. Harding, 227 U. S. 489, it was held that a partnership for a fixed duration can only be dissolved for sufficient cause shown to the court, and one attempting to dissolve the partnership before the fixed termination and to exclude the other from participation, must account to the latter for his share of the profits until the court decrees a dissolution in a suit brought to dissolve. The court further held that, where one party attempts to illegally dissolve a partnership without suit, and subsequently the other brings a suit for dissolution in accordance with the statute, the former must account for all the profits until the finaL decree of dissolution.

That case is in many respects similar to the case at bar. There Harding made an agreement to lease a hotel upon the condition that he associate with himself another person satisfactory to the lessor. Harding then arranged with Mrs. Zimmerman to join in the lease and to form a partnership to operate the hotel. The agreement of partnership was never reduced to writing, and there was no express stipulation as to its duration. The partners obtained a lease of the hotel for the term of two years, with the right of renewal for another term of two years. Thereupon the partnership took possession of the hotel and began to operate it. The business ran along with a profit for about seven months, when Mrs. Zimmerman, during the absence of Harding upon a vacation, assumed to dissolve the partnership. She assumed entire possession of the business, and Harding was excluded from all possession and all benefits of the partnership. Harding first brought an action at law against Mrs. Zimmerman to recover damages for the breach of the partnership contract. Subsequently he dismissed his action at law, without prejudice, and filed a bill in chancery to obtain a decree of dissolution and an accounting of the partnership affairs. He asked for the appointment of a receiver, which was resisted by Mrs. Zimmerman and denied by the court. Mrs. Zimmerman remained in full control of the hotel business until the date of the final decree dissolving* the partnership. The partnership property, including the unexpired term of the lease, was sold under orders of the court, and the final result was that Harding was allowed his share in the proceeds of the business, including the profits realized to the' date of the sale. The court said that, whether the partnership had been effectually dis-. solved by the declaration of Mrs. Zimmerman to that effect or not, her action in excluding Harding from joint possession and control until the affairs had been wound up was, upon either hypothesis, wholly indefensible. The reason given was that the partnership property continued to be partnership property. after as well as before dissolution. The court, on this point, further said: ,

“When she assumed the right to take possession for herself and to carry on the business with the partnership property, Harding had a clear right to call her to account for his share in all of the joint property, and, at his election, to require her to account for the profits, by way of damages or otherwise, which lie had been prevented from making by his wrongful exclusion from the business. Ambler v. Whipple, 20 Wall. 546; Pearce v. Ham, 113 U. S. 585, 593; Karrick v. Hannaman, 168 U. S. 328, 337; Holmes v. Gilman, 138 N. Y. 369. ’ ’

Again, the court said that Harding had sought to have the business wound up by a receiver, which Mrs. Zimmerman prevented, and she was suffered to remain in sole possession. Therefore she could not complain because she had been held to account for the profits made during that time.

We think this principle is in accord with our own decisions bearing upon the subject. In Bernie v. Vandever, 16 Ark. 616, it was held (quoting’ from the fifth syllabus): “Where one of two partners dies, if the surviving partner, instead of settling the partnership property, uses it in carrying on the business, the representative of the deceased partner may, at his election, claim an interest, according to the principles of equity, in the subsequent profits, or take interest upon the amount due him, after a full settlement of' the partnership debts, at the time of the dissolution.”

The reason is that, while the partnership is, for most purposes, dissolved by the death of one of the partners, still a community of interest remains in the partnership effects on hand at that time until they are disposed of. The surviving partner has the right to wind up the affairs of the partnership and distribute its proceeds. He has no right, however, to continue to use the property and effects of the firm in carrying on the business, and, if he does so, the representative of the deceased partner, at his option, may require him to account for the value of the deceased partner’s interest • in the partnership, or. to account for the profits he has made by the wrongful continuation of the partnership by the use of the partnership effects after one of the partners had died.

Again, the principle was recognized in Drake v. Thyng, 37 Ark. 228. In that case the court held that one partner cannot, without the consent of the other, dispose of the partnership business and its effects, because such course would be contrary to the object and design of the partnership. The court further held (quoting from second syllabus): “'When a partner; in the absence of his copartner, who has furnished the capital, sells the partnership effects and business at a sacrifice, to parties having knowledge of the interest of the copartner, and when there is no necessity for the sale, a constructive trust will attach to the property in the hands of the purchasers, and, as trustees, they and the vendor will be held to rigid accountability to the copartner.”

There was no decree of dissolution of the partnership until the receiver was appointed on the first day of May, 1923. During the existence of the partnership between Drummond and Batson, Drummond took sole charge of the partnership business, and excluded Batson from any share in it. This was held to be wrongful, upon the former appeal in the case, and it would be contrary to the plainest principles of equity to allow Drummond to continue to use the property and effects of the partnership for his own benefit before making settlement of the partnership affairs. He wrongfully carried on the business by the use of the partnership property and effects. The profits made by such trading must be brought into account with the original firm, and Batson, at his option, may claim his share of the profits, instead of merely bringing suit for damages for a breach of the contract of partnership. Drummond, by wrongfully excluding Batson from participation in the partnership business, and by continuing the business with the joint property of the firm, did so at his own risk, and cannot now complain of the result caused by his own wrongful act.

It is next insisted by counsel for appellants that, inasmuch' as the original lease did not provide for a renewal for another term, Drummond had the right to take a new lease in his own name and for his own benefit, to begin at' the expiration of the original lease.

In Mitchell v. Reed, 61 N. Y. 123, it was held that one member of a partnership cannot, during its existence, without the knowledge of his copartners, take a renewal lease for his own benefit, of premises leased1 by the firm, although the term of the renewal lease does not begin until after the copartnership has expired by its own limitation.

The court further held that a lease so taken by one partner in his own name inures to the benefit of the firm, and that the partner in whose name it is taken can be required to account to his copartners for its value.

Upon the second appeal in the same case, it was held that the fact that a lease of premises used by the firm for partnershin purposes to one of the partners does not authorize him to take a renewal lease in his own name and for his own benefit; and that a renewal will inure to the benefit of the firm. Mitchell v. Reid, 84 N. Y. 556.

One of the reasons is that, where there- is a lease of partnership property, the good will of the business enters into the value of the lease and affects, the amount of the purchase price; and the new lease became a part of the good will of the- business. Hence it was held that the partner who had been deprived of the benefit of the lease by the action of his copartner in taking a renewal lease in his own name could recover the value of his interest in the lease as a part of his damages.

In Knapp v. Reed (Neb.), 32 L. R. A. (N. S.), 869, it was held that, when a partnership is' carrying on business in premises which it holds under a lease, neither partner can, without the consent of the other, take a renewal of the lease in his own name, and so exclude the other partner and secure the good will of the business for himself.

It was further held that, if one partner takes such renewal, it will inure to the benefit of both partners, and each will have an interest in the new lease.

This case is also reported in Ann. Cas. 1912-B, p. 1095, and in the case-note, at page 1100, it is said that the earlier cases are very numerous in which courts of chancery have recognized the tenant’s reasonable expectancy of renewal as a property or asset, and have laid down the rule that, if one standing in a fiduciary or gib a si-fiduciary relation to a lessee secures a renewal of the lease to himself, the new lessee will be treated as holding the lease in trust for the original lessee. The rule is applicable to partners, managing officers of corporations, and other trustees. The reason is that one occupying* a fiduciary relation to another is held to th'e utmost fairness and honesty in dealing with the party to whom he stands in that relation. If one person becomes interested with another in a business, he is prohibited from using the common property for acquiring rights in other property antagonistic to his partner, except with the full knowledge and consent of the latter. See also Robinson v. Jewett, 116 N. Y. 40, 22. N. E. 224, and McCourt v. Singers-Biggers, 145 Fed. 103, 7 Ann. Cas. 287, and note at 297,

In Pike’s Peak Co. v. Pfuntner (Mich.), 123 N. W. 19, the court held that, although a tenant, in the absence of an express agreement, lias no enforceable right to a renewal of a lease, yet his expectancy of being permitted to renew is a valuable property right which will be recognized in law. Several well-considered cases are cited, which support the holding. The renewal of the lease, in equity, is regarded as a continuance of the original lease, so far as concerns the legal and equitable rights of those who had an interest in the old lease.

In Johnson’s Appeal, 115 Penn. 129, it was said that, when a lease is held by a partnership, the chance or opportunity of renewal is in itself a distinct asset of the partnership, in whicli all the partners have an interest. Therefore it was held that one partner cannot take a new lease, or a renewal of an existing one of the firm, in his own name, or for his own benefit, without being liable to account for it to the partnership.

It was further held that the dissolution of the partnership does not annul or change the relation of the former partners in relation to the right of the renewal of a partnership lease. The reason is that, even after dissolution, the original lease remains partnership property for the purpose of liquidation, and the obligation of each partner to deal with it for the joint interest of the other partners remains.

In all such cases this expectation of renewal is a part of the partnership assets, to be accounted for in winding up and settling'the partnership affairs, just as other property of the partnership. Of course, where the elements of fiduciary relationship and concealment or bad faith are lacking, the rule has no application.

In Sneed v. Deal, 53 Ark. 152, this court held that, where two partners, without the knowledge or consent of the third partner, cancel a partnership lease and renew it in their names and for their individual benefit, and sell their name and interest in the firm’s business and assets to such third partner, he becomes the owner of the lease.

Partners are bound to conduct themselves' with good faith towards each other, and the partnership property cannot be used for the private gain of one of the partners to the exclusion of the other. This salutary rule applies with peculiar force to a case like the present one. ( Drummond took sole possession and control of the partnership business during the life of the original lease, and excluded Batson from any participation in ,the partnership affairs. This put him in the exclusive possession and control of the management of the hotel, which could only be run by the use of the partnership property. It was a large-sized hotel, and it cost a good deal to buy furniture, fixtures, and other property with which to operate it. There was an oil boom in El Dorado at this time, and it is fairly inferable that the value of a lease of hotel property was increasing rapidly. This is evidenced from the increased rental which the owner of the hotel received from Drummond in the new lease. It is evident that Drummond secured the preference in getting the new lease because he was in sole control of the hotel and of the property used in running it. He wrongfully obtained this control during the term of the original lease and during* the life of the partnership, and he cannot, by his wrongful acts in this respect, dispose of a valuable asset of the partnership -without accounting to Batson. If the expectancy of a new lease was an asset of the partnership, and if Drummond was enabled to secure the new lease in his own name because he had sole control and possession of the partnership property, he must account to his copartner for his interest in the new lease. Therefore the court properly ordered this to be sold by the receiver as part of the partnership property in winding up the partnership affairs.

The decree in this respect is as binding upon Harland as upon Drummond. It will be remembered,that Harland took possession of the hotel on the 3d day of February, 1923. He was allowed to file an intervention in this suit on the 25th day of April, 1923, in which he claimed an undivided one-half interest in the property used in operating the hotel, and also claimed to own the lease for the year 1923 by assignment and transfer from Drummond. Harland claims to be an- innocent purchaser ; but in this contention he is not sustained by the facts. It is shown by a preponderance of the evidence that he knew of the litigation between Drummond and Batson about the hotel property and the lease. He was expressly told about it by the attorneys for Batson, and purchased it with a full knowledge of the claim of Bat-son. This made him a constructive trustee of it as part of the partnership property, and he, as well as Drummond, should be held to a rigid accountability to Batson. Drake v. Thyng, 37 Ark. 228.

It is true that no lis pendens was filed under the provisions of § 6979 of Crawford & Moses’ Digest. This did not make any difference. That section of the Digest deals with the subject of constructive notice, and not actual notice. This court" has held that the section in question does away with the common-law and equity rule of lis pendens, and provides that a suit affecting the title or a lien on real estate is not lis pendens until the notice of the pendency of the action is filed in accordance with the statute. Henry Wrape Co. v. Cox, 122 Ark. 445. One who purchases, having actual notice of the pendency of the suit, cannot avail himself of the failure to give the lis pendens notice required by the statute. Jennings v. Bouldin, 98 Ark. 105, and Ziegler v. Daniel, 128 Ark. 403.

But it is contended that there was no suit pending • with regard to the new lease at the time Drummond transferred it to Harland. The suit between Drummond and Batson for an accounting and settlement of the partnership affairs was pending in the Supreme Court at that time, and, under our holding above, Drummond, in taking the new lease to himself, became a trustee to hold the same for the benefit of the partnership, and as an asset thereof, upon the dissolution of the partnership. Hence it was involved in the suit between Drummond and Bat-son, which had for its object the winding up of the partnership affairs and distributing the assets-thereof.

As we have .already seen, a clear preponderance of the evidence shows that the attorneys for Batson had fully explained to Harland Batson’s claim in the matter, and Harland cannot, in any sense, be considered a bona fide purchaser. He is therefore held to the same accountability as a trustee as Drummond, and the facts bring him within the principle that a trustee cannot profit from the estate for which he acts.

The chancellor allowed Drummond and Harland a reasonable salary for managing the business while it was in their hands. It is claimed that, because Batson was wrongfully excluded from any participation in the partnership, he should not be charged with this expense. "We do not agree with counsel for appellees in this contention. Batson has elected to share in the profits up to the> time of the sale of the partnership property. It was necessary for some one to manage the partnership affairs. No complaint is made that either Drummond or Iiarland mismanaged the business' while it was in their hands. Their services inured to the benefit of the partnership, and were necessary to the successful operation of it. He who seeks equity must do equity. Therefore we .are of the opinion that, under the circumstances of this case, the chancellor did not err in allowing Drummond and Iiarland a reasonable sum for their management of the partnership business.

The master made a detailed account of the partnership affairs from the time that Batson was excluded from any participation therein until the date of the sale thereof by the receiver. The receiver also filed a report of all his proceedings, including the sale of the property. After making all proper allowances, the chancellor made a division of the proceeds according to the respective interests of the parties as defined in this opinion. His order of distribution was practically made under the principles of law herein announced... No useful purpose could be served by setting out all of these amounts or the particular state of the account in detail in the opinion.

It follows that, under the views we have expressed herein, the decision of the chancellor was correct, and the decree of the chancery court will be affirmed.

REHEARING OPINION.

Hart, J.

Both parties have filed motions for a rehearing, and, in the main, have followed the line of argument made in their original briefs. We can see nothing in their arguments to cause us to change the rulings made in our original opinion.

Counsel for appellee, in their motion for a rehearing, lay special stress on the case of Cole v. Cole, 119 Ark. 48. They contend that, under the principles of law laid down in that case, the court erred in allowing compensation for running" the hotel after Batson was ousted from any participation therein.

In the Cole case there were three partners, and the partnership became dissolved by the death of one and the insanity of another. There was no dispute whatever about the terms of the partnership or the compensation that each one was to receive. The third partner continued the partnership on his own motion without any claim of right to do so, and we held that, under the circumstances, he was not entitled to extra compensation.

In the case at bar the court recognized that the partners stand in a fiduciary relation to each other, and that, if one partner, instead of winding up the partnership affairs, at its dissolution, continues to use the partnership property in business and makes a profit thereon, he must account for it.

We further held that, under the peculiar facts of this case, in stating an account between the partners it was equitable to allow Drummond an allowance for his time and business ability, which largely contributed to the success of the business. This is a well known exception to the general rule and has been well stated in Rowell v. Rowell, 122 Wis. 1, as follows:

“The court recognized the principle that, while surviving partners, in closing up the affairs of the firm, are not entitled to compensation for services, yet, when those interested in the estate elected to demand not only the fair value of their interest, but also a share in the profits earned by the use of the whole propertv, a court of equity will inquire to what extent the profits of the business are attributable to the personal services of those conducting it, and, if some share or sum is proved so to be. with reasonable certainty, will allow that, on the theory that those who seek equity must accord it, also that profits due to such services are not due to the property. This is, of course, subject to the consideration that they who have wrongfully appropriated property of another by mingling and confusing it with other things must bear the burden of proving with reasonable clearness and certainty what part of the ultimate general result is due to other sources than the misappropriated property.”

Several decisions are cited to support the ruling.

In the present case there was a dispute between Drummond and Batson as to whether a partnership existed between them. It is true that we held that the relation existed, and that Drummond was a wrongdoer in ousting Biatson from the partnership business. The testimony, however, was sufficient to warrant Drummond in testing his rights in the courts, and we are of the opinion that, under the circumstances of this case, Drummond and his vendee should be allowed a reasonable compensation for their successful management of the hotel.

In this connection it may be stated that- the receiver continued -to manage the property successfully during the time he had it in charge, and, for the reasons stated above, the cost of the receivership should be equally borne between Drummond and Batson. A master was appointed to state an account between the parties. It does not appear that Drummond in any manner undertook to conceal the state of the account between them. Drummond simply claimed that Batson was not entitled to share in the profits because he was no longer a partner. After the court held that Batson was his partner, it does not appear from the record that Drummond interposed any obstacles in the way of accounting. Therefore we believe that the cost of accounting was also a proper charge against the partnership profits, and that the costs thereof should be equally borne by the parties. No contest is made as to the amounts allowed the master or the receiver. As we understand the decree of the chancery court, the cost of the receivership and of the accounting was taken out of the partnership funds, and the balance was ordered distributed under the principles of law announced in our original opinion.

It follows that the motion for a-rehearing will be denied.


source: Caselaw Access Project

author: Smith. J.

license: Public Domain

text:
    Mullins & Kyte v. Road Improvement District No. 5.
    Opinion delivered February 4, 1924.
    1. Highways — road improvement contract — cancellation.— Where a contract for road construction was to he completed December 1, 1920, unless prevented by the district, by the act of God, strikes, or other causes beyond the control of the contractors,” and there were no substantial differences between the original route and the route subsequently determined upon by the district, and on June 22, 1921, the contractors had put in place less than one-third of the earth required for the embankment, the commissioners were within their rights in taking over the job; the contract providing therefor in case the contractors failed to prosecute the work so as to complete it within the time specified.
    2. Highways — method of determining excavation. — Under a contract providing that the amount of material excavated will be measured in its original position by cross-sectioning, unless the engineer elects to cross-section the embankments after the material has been placed, in which event he shall provide for a shrinkage of ten per cent., held, where the engineer elected to cross-section the embankment, ten per cent, should be subtracted.
    3. Highways — cost of completing construction of embankment. —Where a road district took over a contract for road construction on account of the contractor’s delay in completing the work, where the witnesses for the contractors testified that there was no substantial difference between the cost per yard of placing the earth to complete the improvement and the cost per yard of -the earth which had been put in place, and the witnesses for the district testified that the expensive part of the dump consisted in . putting the earth upon the higher part of the dump and finishing the work off, the latter view is more reasonable.
    4. Highways — impounding funds of district. — In a suit to enjoin a road improvement district from canceling a contract to construct a road and to impound the funds of the district, it was proper to refuse to impound such funds where the improvement was not completed when relief was asked.
    5. Highways — cancellation of contract — saving credited to contractors. — Where, on the district taking over the construction of a road because of the contractor’s delay, a saving in the cost was properly credited to the contractors, in accordance with a ' provision in the contract.
    6. Highways — delay in construction — liquidated damages. — In a contractor’s suit to enjoin a road district from canceling a contract for road construction, where defendant sought liquidated damages for delay in construction, it was not error to refuse to charge the contractors with such damages where most of the delay was caused by unprecedented rainfall and by changes in the plans.
    7. Costs — when divided. — In a contractor’s suit to enjoin a highway district from canceling a contract for road construction, the district having taken over the contract on account of delay in completing the road, the costs will be equally divided, in view of the fact that most of the delay was occasioned by unprecedented rainfall and by changes in the plans.
    Appeal from St. Francis Cliancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Coleman & Gantt, for appellant.
    The record shows that the contract was breached by the district. Such being the case, appellants are entitled to recover the amount due them for the work they had done up to the time of the breach, and also the amount they would have earned on the remaining work, had the district carried out its contract. 158 Ark. 91; 80 Ark. 228; 9 C. J. 822. Even if appellants had been responsible for the delay, the district had waived the right-to declare a forfeiture on that account. 158 Ark. 91. If the language of the contract is doubtful, that construction should be adopted which will impose the least hardship upon the parties. 78 Ark. 202. And all doubts should be resolved against the party who prepared the contract— in this instance, the district. 112 Ark. 1; 115 Ark. 166. See also 88 Ark. 363; 95 Ark. 449. If the engineer thought the work was being done improperly, it was his duty to reject it at once. 200 Mich. 453; 166 N. W. 904; 90 N. W. 700. Failure to reject an obvious defect is equivalent to approval. 35 Cyc. 2'29; 152 N. "W. 1071. It was an abuse of discretion to tax the entire costs against the appellants. 148 Ark. 181; 125 Ark. 332; 132 Ark. 606; 158 Ark. 91. Plaintiffs were entitled to an equitable garnishment. 143 Ark. 446; 146 Ark. 494; 148 Ark. 181; 152 Ark. 422. There was at least a substantial performance of the contract which entitled appellants to recover; 64 Ark. 34; 67 Ark. 219; 97 Ark. 278; 105 Ark. 353; 147 Ark. 203; 148 Ark. 181. Taking charge of the road and attempting to remedy the alleged defects constituted an acceptance of the work. 97 Ark. 278.

      A. B. Shafer and Maun é Mann, for appellees.
    The engineer was made the referee in this case, and, if he acted in good faith, his findings will not be disturbed. 175 IT. S. 590; 44 Law. eel. 284; 137 Fed. 369; 114 S. W. (Ark.) 242. The evidence does not disclose that the engineer, at any time, so acted or ruled that his conduct amounted to fraud or bad faith.
   Smith. J.

Road Improvement District No. 5 was organized under the Alexander road law, for the purpose of improving several short lines of road in St. Francis County, near Hughes. In May, 1920, it entered into a contract with appellants, Mullins & Kyte, for a part of the construction work which was planned. This contract embraced the building of the bridges and the culverts on the three lines of road designated as “A,” “B,” and “F,” and the construction of the earth embankment on line “F,” which begins about two miles north of Hughes and extends to the Crittenden County line near Chatfield, a distance of a little over three and one-half miles. The road for its entire length was along the right-of-way of the Missouri Pacific Railroad Company.

At the time the contract was entered into it was planned that the road should begin on the west side of the railroad, near Hughes, and should continue on that side for R622 feet, and then cross over to the east side, along which it ran for 7,512 feet, and then crossed back to the west side, where it continued to the Crittenden County line. After the contractors entered upon the job, it was decided by the commissioners of the district to change the location of the roads at two points, and the contractors were so notified on the 26th day of June.

The first change was in the property of J. M. Bush, between stations of the road numbered 16 and 41, where the road crosses a small slough, and it is insisted that this change put the road on lower land, which was wetter and required a higher fill of earth. It is alleged that the center line of the second change was not located until August 18, and that no profile for the new location was ever furnished to the contractors by the engineers for the district. These changes in the route of the road constitute the chief excuses for the admitted delay in the completion of the improvement. Another excuse is that the unfavorable weather .delayed the work. At any rate, only 26.22 per cent, of the work had been completed on December 1, 1920, when, according to the contract, the work should have been entirely completed. Thereafter but little work was done until June 21, 1921, when the contractors were directed to discontinue the work. The contractors immediately brought suit to enjoin the commissioners from canceling the contract, and they prayed that the funds of the district be impounded and held subject to the order of the court, and that a master be appointed to determine the amount of work done and to be done, and to state an account between the parties, if they were not allowed to complete the work.

The commissioners filed ¿m answer, in which they denied the allegations of the complaint, and alleged breaches of the contract by the contractors in many respects; and a cross-complaint was filed in which judgment was asked for liquidated damages for failure to complete the road in the time limited, for alleged over-payments, and for improper excavations of borrow-pits, and certain other items "of damage, amounting, in the aggregate, to $27,700. There was a reply to the cross-complaint, denying the damages claimed.

The cause was heard on the 14th of April, 1922, and the court made the following findings:

(1) That the contractors were not in default in failing to complete the contract by December 1, 1920, as the .changes in the location of the road produced a material change in the contract, which entitled the contractors to an extension of time.

(2) That the district is not therefore entitled to recover liquidated damages for delay.

(3) That the delay of the contractors thereafter in completing the road, and their failure to place adequate equipment on the work, warranted the district in taking over the work in June, 1921, and proceeding to finish it under the terms of the contract.

(4) The contention of the district in regard to the measurement of the earth work was sustained.

(5) A finding was made in favor of the contractors covering the issue in regard to clearing and gruhhing the right-of-way.

(6) A finding was made in favor of the contractors in reg’ard to the retained percentage of the contract price held by the district.

(7) That the contractors should recover $462.61 erroneously charged to them in estimate No. 17, made by the engineer of the district.

(8) That the contractors should recover the difference between the contract price for doing the unfinished portion of the work and the reasonable cost to the district of completing the work.

(9) That the reasonable cost to the district of the earth work remaining* to he done with drag-line machines is 35 cents per cubic yard, and the reasonable cost of finishing work in the Bush fill is $1 a cubic yard, which amounts to a total for said finishing work of $1,778.70.

(10) The court, not being sufficiently advised as to the quantities of the work remaining to be done, or as to the cost of the items thereof other than earth work as above set forth, ordered that a special master be appointed to state an account of the difference between the contract price for doing said work and the reasonable cost to the district -of completing it and of the amount due them for work already done, based on the findings herein set forth.

Upon these findings the court ordered that F. H. Ford be appointed as a special master to determine the reasonable cost to the district of completing the work, and to state an account of the difference between such reasonable cost and the contract price for doing said work, and to make a finding as to the balance due the contractors.

The eighth finding of the court was based upon the 61st paragraph of the contract, which authorized the district, upon the failure of the contractors to prosecute ' the work with such materials and equipment as, in the opinion of the engineer, is necessary to complete the work within the time, specified, to secure such additional labor, equipment and materials as may be necessary to properly proceed with the work. This section of the contract authorizes the commissioners to charge the expense thus incurred to the contractors, but further provides that, in case the expense so incurred shall be less than the sum which would have been payable under the contract, if it had been complied with by the contractors, the contractors shall be entitled to the difference; and, if more, the contractors and their sureties shall pay the excess.

On May 13, 1922, the master made a report, which was based upon testimony taken before the original submission and testimony taken by the master himself. According to the master’s report, the net amount payable to the contractors was found to be $14,265.50. These figures were based upon a consideration and finding upon numerous controverted items.

The district filed fourteen exceptions to this report, which were heard and sustained b}r the court on the............ day of June, 1922. The report was disapproved, and leave was given to both the contractors and the district to take further evidence, and this was done.

The district employed the Morgan Engineering Company to make an estimate of the work done, and of that remaining to be done to complete the contract, and the cost thereof, and the representatives of that company ' made an investigation, which was followed by an elaborate report, and the officers of that company gave testimony sustaining it in detail.

Thereafter the contractors also took additional testimony, and on November 7, 1922, the court rendered a final decree, finding that the district was indebted to the contractors in the sum of $2,015.66, with interest at six per cent, from July 18, 1921, and that plaintiffs should pay all costs of this action. Both parties excepted; the contractors perfected their appeal, and the district has cross-appealed.

It appears from the facts stated that the questions involved are chiefly questions of fact, and the testimony upon which the court made the finding appealed from is conflicting. The question is whether this finding is clearly against the preponderance of the testimony.

The contractors appear to be correct as to the time when and the circumstances under which the route was changed; but we do not think this change involved the damage, by way of delay, which'the contractors claimed. A profile appears to have been furnished when the contract was originally let, and the last change was to restore this plan. Besides, the engineer for the district testified that there was no substantial difference between the two routes, as they were both parallel and adjacent to the railroad, and the proposed road ran through level country, the only difference being that the original route and the one last determined upon required, at one or two places, a slightly greater fill or embankment.

The court held, however, that because of this change in plan the contractors were not in default at the time the district notified the contractors to leave the job; but the court found that the contractors were thereafter in default, and that the directors were within their rights in taking over the job. We think the testimony supports this finding. On June 22, 1921, the contractors had put in place less than one-tliird the earth required in the embankment.

The testimony is quite voluminous and conflicting, and there were three hearings by the chancellor, the first on the original submission, the second on the exceptions to the master’s report, and the last on the final submission, the second and third hearings being had on the additional testimony taken because of the uncertainty entertained by the chancellor about the facts. The case appears therefore to be one in which much consideration should be given to the findings of the court, and, upon a consideration of the testimony, we are unable to say that his findings, or any of them, are clearly against the preponderance of the testimony.

It is quite obvious that the finding of the court below was largely influenced by the report of the Morgan Engineering Company. This company made its examination and report after the court had heard the exceptions to the master’s report, and by this time the issues of fact were sharply defined, and this report dealt directly with those issues. This report covered the amount of work remaining- to be done, the condition of the completed work with respect to the specifications under which it was to be done, and, in particular, the work necessary to be done on the part of the job which the contractors claimed was complete, to bring it up to the specifications. The principal defects complained of were that the borrow-pits- had been so excavated that they would not drain as the specifications required they should do, and that a sufficient bernuwas not left to hold the sides of the embankment.

One of the important questions of fact was how to measure the embankment or roadbed. This controversy grew out of the interpretation of paragraph 82 of the specifications, which reads as follows: “82. Method of Determining Excavation Quantities. The amount of material excavated will be measured in its original position 1 by cross-sectioning, unless the engineer elects to cross-section the embankments after the material has been placed. In which event he shall provide for a shrinkage of ten (10%) per cent. Cross-sections will include breakage or slides which are not due to the carelessness of the contractor and which have not been removed, also all masonry walls and stone fences. Buildings and other obstructions will not be measured, but will be included in the price bid for excavation.”

Experts testified on both sides of the question. Those who testified for the contractors expressed the opinion that the language quoted meant that the ten per cent, should be added to the measurement of the roadbed, while the experts who testified for the district expressed the opinion that the ten per cent, should be subtracted. In other words, if an estimate showed that, say, a thousand yards of earth had been put in place, should a hundred yards be added or subtracted on account of shrinkage? The measurements were made while the earth was fresh and newly placed, and the court found that the ten per cent, should be subtracted. We think this finding consonant with common observation and experience that fresh earth packs and shrinks. Besides, we would so interpret the contract as a matter of law, as there appears to be no such ambiguity in the language employed as to make expert testimony necessary or competent to explain it.

The chancellor substantially accepted the report of the Morgan Engineering Company as to the amount of work done and the portion thereof remaining uncompleted. Without reciting the testimony — which would consist in setting out conflicting estimates — we announce our concurrence in the finding of the court below.

Some of the conflict in the testimony grows out of the difference of opinion as to the comparative cost of the completed and the uncompleted parts of the WQrk. It was the theory of the witnesses for the contractors that there was no substantial difference between the cost per yard of placing the earth to complete the improvement and the cost per yard of the earth which had been put in place; whereas it was the opinion of the witnesses for the district that the expensive part of the dump consisted in putting the earth upon the higher part of the dump and finishing the work off. This view appears to be the more reasonable one.

The court found. — and we concur in the finding — that the contractors did not excavate the borrow-pits so that they would drain, and did not leave sufficient berm to protect the sides of the embankment, as required by the specifications. It was pointed out by the engineers who made the report for the Morgan Engineering Company that these defects could be remedied in only one of two ways, and that the cost of one method was prohibitive, and the cost of the cheaper method was given in detail. The contractors insist that'they should not be charged with this cost, as they say it required them to do work not called for by the specifications. This appears to be true; but it also appears to be true that this additional work was made necessary by the failure of the contractors to observe the specifications as they proceeded with the work. Yet, as we understand the final decree, the court did not charge the contractors with the full amount of this estimate. In other words, while the court appears to have accepted, as the basis of the final decree, the report of the Morgan Engineering Company, this was not done without some exceptions, and, without further discussion of the testimony, which has been carefully considered, we announce our concurrence, at least we are unable to Say that the finding is clearly against the preponderance of the evidence.

We think the court properly refused to impound the funds of the district, as the improvement had not been completed when that relief was asked. Newell Contracting Co. v. Elkins, 161 Ark. 625.

We are of the same opinion in regard to the finding on the matters involved in the cross-appeal. The commissioners took over the work under the authority of paragraph 61 of the contract, which provided, as has been stated, that, in case the expense incurred by the board should be less than the sum which would have been payable under the contract, if it had been completed by the contractors, the contractors should be entitled to receive the difference; but, if such expense should exceed the sum which would have been payable under the contract, then the contractors 'and the sureties on their bond should be liable for the excess.

The court found there was a profit of ten cents per cubic yard in the unfinished embankment, and allowed the contractors credit therefor. Without setting out the conflicting testimony on this finding, we announce 'our conclusion that it was not clearly against the preponderance of the testimony.

The court also refused to charge any sum against the contractors by way of liquidated damages for delay. In support of the court’s finding on that question it is pointed out that the contract provided for the work to be completed by December 1, “unless prevented by the district, by the act of God, strikes, or other causes beyond the control of the contractors.” It is urged that the com•pletion of the work was prevented by the district, and certainly by causes beyond the control of the contractors in the way of unprecedented rainfall, and the court found that the change in the plans excused most of the delay complained of.

The costs of the entire case were assessed’ -against the contractors, and it is insisted that these costs should have been assessed against the district, as there was a recovery by the contractors.

Courts of equity have a discretion in the matter of taxing costs which courts of law do not have. But, upon a consideration of the whole case, we think it would be more in accord with equitable principles to divide these costs equally between the parties, and it will be so ordered. In all other respects the decree is affirmed.


author: Hart, J.

text:
    Sutton v. State.
    Opinion delivered February 11, 1924.
    1. Criminal law — credibility of witnesses. — The jury are the judges of the credibility of the witnesses.
    2. Robbery — sufficiency of evidence. — In a prosecution for robbery, evidence held sufficient to sustain a conviction.
    3. Robbery — sufficiency of force. — Whenever the element of force or putting in fear enters into the taking of the property, and is the cause that induces the owner to part with it, the taking is robbery, no matter how slight the act of force or the cause creating the fear may be, nor by what other circumstances the taking may be accompanied.
    4. Criminal law — confession.—A confession of accused voluntarily made to the sheriff was admissible against him.
    5. Robbery — liability for acts of companions. — In a prosecution for robbery, where testimony showed that the complaining witness was first put in fear of his life by accused, and then his property was taken by accused’s companions, under his direction, it was immaterial that accused^ companions also were not indicted.
    6. Robbeky — instruction.—In a robbery case, an instruction which used the words “feloniously and violently” following immediately after the words “steal, take and carry away,” held not misleading as calculated to lead the jury into believing that they were directed to find defendant guilty under circumstances which would make him guilty* of larceny only.
    7. Robbery — definition.—“Robbery” is larceny either by force or by intimidation, and it is sufficient to charge it in either form.
    8. Criminal law — repetition of instructions. — It was not error to refuse requested instructions fully covered by the court’s charge.
    Appeal from Saline Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      N. A. McDaniel, for appellant.

      J. 8. Utley, Attorney General, Jolm L. Garter, Wm. T. Hammock, Darden Moóse and J. 8. Abercrombie, Assistants, for appellee.
   Hart, J.

Dave Sutton prosecutes .this appeal from a judgment of conviction against him for the crime of robbery.

We shall first direct our attention to the question of whether the evidence is sufficient to have warranted the jury in returning a verdict of guilty.

John Douglass, the person charged to have been robbed, is twenty-one years old, and lives in Saline County, Arkansas. According to his testimony, on the 28th day of July, 1922, he carried a family to their home, about fifteen miles away from his father’s house, and started home with the ear something after twelve o’clock at night. As he went down the roa.d he noticed a car parked on the side of the road, and, when he came up with the car, Dave Sutton got out of it and stopped the witness. Sutton said that he was the “law,” and wanted to search the car of John Douglass for whiskey. Sutton searched the car, and claimed that he found a pint of whiskey under the back seat. Douglass denied having any whiskey in the car, and then Sutton got into the car with Douglass and told him that he would have to take him to Little Rock. Sutton finally demanded three' dollars from Douglass, and the latter replied that he had no money. There were other men in Sutton’s car, and they asked Sutton if he had found any whiskey. Sutton replied that he had, and asked them to come over to the car. Sutton and Douglass were still talking about Douglass giving Sutton three dollars. Sutton finally said, “Here are some casings (referring to some casings on Douglass’ car), and we will just take one of them.” The casings were tied on the side of the car. They took one of the casings away with them, while Sutton was sitting on the front seat with Douglass. Sutton told Dougiass that, if he had not stopped his car when ordered to do so,"he would have shot him. Sutton and the men with him told Dougiass to go on down the road, and not look back.

On cross-examination, Dougiass said that he had known the defendant for more than fifteen years. He admitted that he did not see any gun on the defendant, but just thought that the defendant might shoot him, because he had said that he would do so. He saw Sutton’s associates taking the casing off of his car, and never said a word to them. Douglass was asked what caused him to think that Sutton would rob him, or why he had any fear of him. He answered, “Well, he $aid he was the ‘law,’ and I was afraid to say anything. I was afraid he would shoot me.” This-all happened in Saline County, Arkansas.

Ben Cox was also a witness for the State, and we quote the whole of his testimony as follows:

“My name is Ben Cox. I am the sheriff of Saline County, Arkansas, and I had a conversation with the defendant, Dave Sutton, just a few days ago; will say that he cdme to me and seemed to be trying to get advice as to what to do. Sutton told me they got the casing all right; he seemed to be trying to get advice as to whether lie should tell on the others. Cross-examination: Mr. Cox, djd Dave Sutton tell you that he robbed Mr. Douglass'? A. I understood him to mean that they robbed him. That is what he said. ’ ’

The defendant denied that he had robbed Douglass of the automobile casing, as testified to by him, and stated that he was at the home of a Mr. Grimmett on the night Douglass claimed that he was robbed. He admitted having in his possession the casing which Douglass testified about, but stated that he had found it, and sold it to another person for a dollar and a half. His testimony that he stayed all night with Mr. Grimmett on the night of the robbery and could not have been at the scene of the robbery, was corroborated by the evidence of Mr. and Mrs. Grimmett and two or three other persons.

The jury were the judges of the credibility of the witnesses, and the evidence for the State was sufficient to support the verdict.

Whenever the element of force or putting- in fear enters into taking of the property and is the cause that induces the owner to part with it, the taking is robbery, no matter how slight the act of fdrce or the 'cause creating the fear may be, nor by what other circumstance the taking may be accompanied. It is sufficient that the putting in fear overcomes the resistance on the part of the person from whom the property is taken, and is the moving cause inducing him to part 'unwillingly with his property. Clary v. State, 33 Ark. 561; Young v. State, 50 Ark. 501, and Routt v. State, 61 Ark. 594.

In addition to the testimony of Douglass, the sheriff was a witness for the State. On his direct examination he stated that Sutton told him that they got the casing-all right. On cross-examination he was asked if Sutton had told him that he robbed Douglass, and answered: “I understood him to mean that they robbed him. That is what he said.” This amounted to a confession on the part of the defendant. According to the testimony of the sheriff, it was voluntarily made, and was therefore admissible as evidence against him. Young v. State, supra; Dewein v. State, 114 Ark. 472, and Jenkins v. State, 131 Ark. 312.

It is next insisted that the court erred in giving instruction No. 1. The instruction is as follows:

“You are instructed that robbery is the felonious and violent taking of any goods, money or other valuable thing from the presence of another by force or intimidation, and that the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender; and if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant and his associates, in Saline County, Arkansas, and within three years next before the filing of the indictment in this case, did, as alleged in -said indictment, by force or intimidation, steal, take and carry away, feloniously and violently, the said automobile casing, you will find the defendant g’uilty and fix his punishment in the State Penitentiary at a period of not less than three nor more than twenty-one years.”

Counsel for the defendant made a specific objection to the instruction, because the defendant was not jointly indicted -with any other persons, and therefore he insists that he had no associates. According to the testimony of Douglass, he was first put in fear of his life by Sutton, and then the casing was taken from the side of the car by the companions of Sutton, who acted under his direction. It is fairly and legally inferable from the testimony of Douglass that he was put in fear of his life by the defendant, and that the other parties, who actually took the casing from the side of the car, acted under the directions of the defendant and jointly with him in taking it. Therefore it did not make any difference whether these other persons were indicted jointly with the defendant or not. The defendant could not have escaped punishment because of this fact, or because the persons associated with him might not have been indicted at all.

It is next insisted that the instruction is misleading because the words feloniously and violently, following’ immediately the words, ‘* steal, take and carry away, ’ ’ were calculated to mislead the jury into believing that they were directed to find the defendant guilty of robbery under' the circumstances which would only make him guilty of larceny of the casing.

We -do not think the instruction is open to this objection. It tells the jury, in plain terms, that, before the defendant could be found guilty, it must find that he, by force or by intimidation, did steal, take and carry away the automobile casing. Robbery is larceny by force or by intimidation, and it is sufficient to charge it in either form. Traver v. State, 72 Ark. 524.

The instruction makes the guilt of the defendant depend upon whether he, by force or intimidation, did feloniously steal, take and carry away the automobile casing, and thus in all essential respects brought the acts of the defendant, as testified to by the witnesses for the State, within the definition of robbery given above.

The defendant also assigns as error the refusal of the court to give certain instructions asked by him, to the effept that, before it could convict him, it must find that there was a forcible taking of the automobile casing, in his presence, against his will, by violence, or by putting him in fear. We do not deem it necessary to set out these instructions, for they are fully covered by instructions Nos. two and three, given at the request of the defendant.

Instruction No. 2 reads as follows: “The jury are instructed that, to constitute robbery, the taking must be either directly from the presence or in the presence of the party robbed, and must be by force or putting in fear, and that if you believe, from the evidence in this case, that the defendant did not have the plaintiff under fear or violence at the time the automobile casing was taken, then you are instructed to find the defendant not guilty. ’ ’

Instruction No. 3 is as follows: “You are instructed that, if you find from the evidence in this case that the defendant did get into the seat of the automobile, and was in there, and you further find that John Douglass was not still under fear of any dangerous weapon or of threats, and you further believe, from the evidence in this case, that other parties had got on the running board of the car and took the casing from the car, and, at the time of the taking, the owner of the casing did not know it was being taken, then this did not constitute robbery, and you are told to acquit the defendant.”

These instructions fully covered the theory of the defendant, and we have repeatedly held that the court is not required to multiply instructions on the same point.

We find no reversible error in the record, and the judgment will therefore be affirmed.