author: Humphbeys, J.

text:
    Pine Bluff Company v. Bobbitt.
    Opinion delivered May 16, 1927.
    L. Evidence — former testimony of absent witness. — It is not error to admit the testimony of witnesses given at a former trial between the parties, where such witnesses-were outside the jurisdiction of the court, and it did not appear that their absence was known or their addresses obtainable in sufficient time to take their depositions.
    2. Evidence — former testimony of absent witness. — The testimony of a witness at a former trial is admissible in the subsequent trial of the same case between the same parties if the witness is beyond the jurisdiction without procurement of the parties seeking to introduce such testimony, and if the address of the witness could not be obtained by reasonable diligence in time to take his deposition, provided the adverse party had an opportunity to cross-examine the witness when his original evidence was given.
    3. ' Evidence — foundation for secondary evidence of absent witness. — It is within the sound discretion of the trial court to determine whether the proper foundation has been made to admit' secondary evidence of an absent witness.
    4. Evidence — matter of common knowledge. — That electricity is a silent and dangerous commodity is a matter of which the court may take judicial notice.
    5. Electricity — burden of proof. — In an action against an electric company for injuries caused by contact with a guy wire which, the company alleged, became charged from a connecting wire placed between guy and tension wires by third party, the burden was on the company to show that the connecting wire was placed there by a third person and that the dangerous condition could not have been detected by the exercise of ordinary care in time to have prevented the injury.
    6. Evidence — burden of proof. — A defendant by setting up a defense difficult to prove can not avoid the burden of proof because of that difficulty.
    7. Electricity — instruction as to liability. — In an action for injuries against an electric company, an instruction that the company had the burden to prove that a connecting wire was placed between the other wires by some person other than an employee was not erroneous for omitting “while in discharge of his duty” after the word “employee.”
    8. Electricity — instruction — use of word “actually”. — An instruction requiring an electric company to prove that a person other than its employee actually placed the connecting wire between the other wires, thereby causing the injuries complained of, held not erroneous for use of the word “actually”.
    9. ELECTRICITY — INSTRUCTIONS AS TO LIABILITY OF ELECTRIC company^ — Instructions ignoring the duty of the defendant electric company to exercise ordinary care to discover presence of wire charging guy wire with heavy current and to remove danger held properly refused.
    10. Trial — refusal of requested instructions.- — Refusal to give requested instructions does not constitute reversible error where the matter is fully covered by instructions given.
    11. Damages — when excessive. — -In an action against an electric company for burns to a six-year old boy sustained from contact with a -charged guy wire, a verdict of $22,500 for injuries rendering the child a cripple and for pain and suffering, held excessive where his condition was gradually improving, but it will be affirmed upon a remittitur of $10,000.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    reversed in part.

      C. H. Moses and Bridges $ McGaughey, for appellant.

      Rowell & Alexan^der, for appellee.
   Humphbeys, J.

This is the second appeal in this case from a judgment in favor of L. W. Bobbitt for $2,500, and in favor of L. W. Bobbitt, guardian, for $22,500, and for a general statement of the issues and facts herein we refer to the opinion reversing the cause on a former appeal, reported in 168 Ark. 1019. The evidence responsive to the real issues involved which was introduced on a retrial of the cause is not materially different from the evidence adduced on the first trial. Some additional evidence, largely of an expert nature, was introduced by both parties relative to the proper and improper method of constructing electric light plants, the use of detectors to discover g'rounded wires, and their effectiveness, and the character, condition and operation of the detector installed in this particular plant, and whether proper inspection had been maintained in the operation of the plant. The additional expert evidence introduced by appellant tended to show both proper construction and inspection of the plant, and that the wire connecting the high tension wire and the guy-wire was foreign to and an unnecessary .wire either in the construction or operation of the plant. The additional expert evidence introduced by appellees tended to show that such a wire might have been placed in the position it was to ground static electricity carried by the high tension wire so as to protect workmen who might be extending the line. Additional evidence was- also introduced by appellant tending to show that no authority was given to its employees to place the foreign wire in the position it was found, -and to show that it was not attached by its employees.

The court reversed the judgment on the former appeal on account of the refusal of the trial court to give appellant’s requested instruction No. 14, set out in the former opinion, which was a correct declaration of law applicable to the disputed issues of fact in the case not clearly covered in the other instructions given by the court as a guide to the jury. In reversing and remanding the cause for a new trial this court announced the law applicable to the facts as follows:

“Appellant contends that the instructions given by the trial court as a g'uide to the jury were erroneous because they placed the burden upon appellant to justify or excuse itself from transmitting the current of electricity through its guy-wire which burned the child. Under the circumstances of the injury a prima facie ease of negligence on the part of appellant was made, which entitled appellee to go to the jury, and placed the burden on appellant to justify or excuse its negligence. The undisputed evidence revealed that the child received the injury from coming in contact with appellant’s guy-wires, while playing near the roadside, which should not have been carrying electricity, in the proper operation of the plant. This guy-wire was under the control and management of appellant. Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. 564; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 214 S. W. 9; Arkansas Light & Power Co. v. Jackson, 166 Ark. 633, 267 S. W. 359. It was appellant’s current of electricity which burned the child, and it could not excuse itself by simply showing that the current was connected to the guy-wire from its tension wire through a foreign wire attached to the two by some third party. It was required to do more than that to exculpate itself from the prima facie case 'of negligence made by proof of the injury and the manner thereof. It must be shown, in addition, that it used ordinary care to discover and remove the foreign wire. 9 R. C. L., pp. 1215, 1217 and 1218.”
While the burden in the whole case rested upon appellee, after a prima facie case was made, the instructions given by the court correctly placed the burden upon appellant to justify or excuse its negligence. The instructions given by the court, in so far as they covered the issues involved, were substantially correct, and impervious to attack by general objections.”

. On the retrial of the cause the court instructed, the jury, at the request of appellees, in substance, as before, and, at the request of appellant, in accordance with the law announced by the court in reversing the former judgments.

Appellant contends for a reversal of the judgments upon the following grounds:

1. Permitting the reading of the testimony of Ellis and Whittle at a previous trial. 2. The giving of instruction numbered 2, requested by plaintiffs. 3. The giving of instruction numbered 5, requested by plaintiffs. 4. The refusal to give instruction numbered 3, requested by defendant. 5. The refusal to give instruction numbered 8, requested by defendant. 6. The refusal to give instruction numbered 9, requested by defendant. 7. The refusal to give instruction numbered B, requested by defendant. 8. The refusal to give instruction numbered 12, requested by defendant. 9. That the verdict was excessive.”

(1). It is argued that the court erred in admitting the testimony of Andy Ellis and Jesse Whittle, given on a former trial, because it was not shown that Jesse Whittle was a nonresident, and, if both were nonresidents, it was not sliown that tlieir depositions could not have been taken in time for the trial. Nineteen days before the trial a subpoena was issued for these witnesses and placed in the hands of the sheriff of Jefferson County. Pour days thereafter the following return was made upon the subpoena by the sheriff: “After diligent search and inquiry I am unable to locate the within named Andy Ellis and. Jesse Whittle in Jefferson County, Arkansas, as I am therein commanded. S. P. Yanis, sheriff. B. W. Vick, D. S.”

B. W. Yick testified that both witnesses were out of the State; that he learned that Andy Ellis was up north-, around Chicago, and Jesse Whittle was somewhere in Louisiana. B. Gf. Wilkerson testified that' he received information from Andy Ellis’ wife, from a letter that he had written to her, that he was in Kansas City, either Kansas City, Missouri, or Kansas City, Kansas, he did not remember; that he could not recall the address he saw on the letter. One of the attorneys for- appellant agreed that Jesse Whittle was in the penitentiary in Louisiana, but neither he nor the attorneys for appellees knew the length of time he had been in the penitentiary. The record fails to disclose that appellees or their attorneys knew of the absence of the witness prior to the return made by the sheriff of the subpoenas, or ascertained or could have ascertained their addresses in time to take depositions in the case.

This court is -committed to the doctrine that secondary evidence is admissible in the same case between the same parties if the witness who testified originally is beyond the jurisdiction of the court, without the procurement or connivance of the party seeking to introduce the testimony, and if the address of the witness was not or could not, by reasonable diligence, have been obtained in time to take his deposition, provided the adverse party had an opportunity to cross-examine the witness when his original evidence was given; and it is within the sound discretion of the trial court to determine whether the proper foundation had boon laid to admit the secondary evidence of an absent witness. Clinton v. Estes, 20 Ark. 216; Shackleford v. State of Arkansas, 33 Ark. 539; McTighe v. Herman, 42 Ark. 285; Rail way Co. v. Henderson, 57 Ark. 402, 21 S. W. 878; Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521; Wimberly v. State, 90 Ark. 514, 119 S. W. 668. We cannot say that tlie discretion of the trial court was abused in admitting' the secondary evidence upon the proof offered as preliminary to its introduction.

(2). Instruction No. 2, given by the court at the request of appellees, is assailed as fatally defective, on specific objection, because the court assumed therein that electricity is a silent and dangerous agent. It is common knowledge that electricity is a silent and dangerous commodity, so the court did not err in assuming such to be the fact. The law recognizes that electricity is silent and dangerous without a finding to that effect by a jury. No prejudice could have resulted to appellant on account of the assumption by the court of a known and accepted fact.

(3). Five specific objections were made to the giving of instruction No. 5, requested by appellees, which instruction is as follows: “The defendant, Pine Bluff Company, is claiming that the connection between its high tension wire and its guy-wire was made by a connecting wire which was placed between the two wires by some person other than an employee of the defendant company.. Now the burden is upon the Pine Bluff Company'to show that said connecting wire was actually placed there by some other person than an employee of the defendant company, and .even this would be no defense against its liability in this case unless it has also shown that the dangerous condition of its guy-wire could not have been detected by the exercise of ordinary and reasonable care in time to have prevented the injuries sustained by Lawson Bobbitt.”

The first four specific objections assailed the instruction because it placed the burden upon appellant to show that “said connecting wire was placed there by some person other than an employee of the defendant company.” We think that the only effect of the instruction was to tell the jury that it was not only necessary for appellant to prove the defense it had interposed, that the connecting wire was placed there by an outsider and not by an employee, but, in order to exempt it from liability, must also shoiv that the dangerous condition of its guy-wire could not have been detected by the exercise of ordinary and reasonable care in time to have prevented the injury.

The former opinion rendered in this case clearly placed the burden upon appellant to exculpate itself from the prima facie case of negligence made by proof of the injury and the manner thereof. Appellant had no right to set up a defense that was hard to prove and then escape on the ground that it was next to impossible to make the proof. Appellant complains that the instruction was peremptory. We think not; but, if peremptory, the trouble was not in the instruction but in appellant for setting up a defense which it was unable to sustain by proof. Appellant also complains that the instruction was erroneous because the court refused to modify it so as to read “an employee of the company while in the discharge of his duty. V If an employee of the company tied the connecting wire in while not in the discharge of his duty he was in that respect and to that extent a third party or an outsider, and could not bind appellant by an act beyond and outside of his apparent scope of authority. We do not think the refusal of the court to so modify the instruction rendered it erroneous.

Appellant also complains that the word “actually” used in the instruction necessarily required it to prove that some particular person, by name, tied the connecting wire. We do not think such burden was necessarily placed upon appellant by the use of the word “actually,” for it might have been shown that the connecting wire was placed there by a crew of workmen, or some unknown person.

(5, 8). The court did not err in refusing to give instructions Nos. 8 and 12 because both ignored the obligation resting upon appellant to exercise ordinary care to have discovered the connecting wire and remove the danger.

(6-7). The refusal to give requested instructions Nos. 9 and B did not constitute reversible error because" they were fully covered by instructions Nos. 7 and 11, requested by appellant.

(9). This brings us to a consideration of whether the verdict and judgment in favor of L. W. Bobbitt, as guardian of Lawson Bobbitt, is excessive.

Appellee’s counsel have summarized the evidence relative to the character of the injury and pain and suffering entailed thereby, and we adopt it, in the main, rather than to set out the testimony of each witness. Lawson Bobbitt was burned in five different places; two in the hack of the head so that the skull was visible, one on his back, one on the calf of the right leg that did not heal for three months, and one four inches above to four inches below the knee on the left leg, leaving a part of the bone exposed. The burn on the left leg did not heal for nearly two years. The scar tissue which eventually covered the burn on the left leg has broken down on two or three occasions, and, when it breaks down, pus forms and runs out, necessitating dressing it twice a day. The. injury rendered him unconscious for a period of twenty-four hours, and he remained in the hospital for more than two weeks, and. suffered intense and excruciating pain for many months after. For more than two years he was in the daity care of one of his physicians, and his wound required dressing twice a day. All of the flesh sloughed out of the burns on the head and left leg. His mother remained in the room with him for many months, sleeping and eating by his side. He was extremely nervous, and still cries out frequently in his sleep. He was delayed in entering school for a year on account of the injury, and has to be carried to and from school by his mother. His left leg is smaller than his right leg, and he will always be a cripple. It is necessary for him to wear a brace. Lawson testified that he would break his ankle if he attempted to walk without a brace. He was six years of age when injured, was bright, and could learn easily. At the time of the last trial he had sufficiently recovered to walk, jump and play when he had his brace on, and could ride a pushcart and bicycle.

' Dr. McMullen testified that, in his opinion, the boy’s leg would gradually improve and eventually he would be able to walk without a brace. Dr. Lowe testified that the boy’s limb would improve gradually until it became normal, and that he would be able to engage in any of the useful occupations that boys usually enter.

In view of the fact that Lawson’s wounds have all healed permanently, except the wound on. the left leg, and that it is gradually improving, and the fact that he has recovered the use of his leg to a marked extent, and, in the opinion of Drs. McMullen and Lowe, will eventually be able to walk without the use of a brace and to enter any of the useful occupations, a majority of the court is of the opinion that the judgment is excessive, and should be reduced to $12,500, under the precedent established in the case of Aluminum Co. of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568; Williams v. Fleming (Mo. Sup.), 284 S. W. 794, 46 A. L. R. 1220. The Chief Justice and the writer do not concur in the view of the majority in this respect. We are of the opinion that the nature of the injury, the intense suffering and pain it entailed, when considered in iconnection with the fact that he will be a cripple all liis life, justifies the amount of the recovery.

The judgment in favor of L. W. Bobbitt in his own right for $2,500 will be affirmed, and, if a remittitur is entered for $10,000, the judgment in favor of L. W. Bobbitt, as guardian, will be affirmed for $12,500; otherwise said judgment will be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Morning Star Mining Company v. Everett.
    Opinion delivered May 16, 1927.
    1. Quieting title — defense. — Where, in an action to quiet title, plaintiff purchased the claim of one of the defendants who held under a contract of purchase from his codefendants, such purchase was a recognition of such defendants’ contract, and did not relieve plaintiff from the payment of the balance of the purchase money.
    2. Cancellation op instruments — laches. — Delay in proceeding to cancel a deed which had been of record more than 27 years, and until those who had knowledge of its execution had died, held to constitute laches.
    3. Mines and minerals — estoppel.- — In a suit to quiet title, plaintiff held estopped to deny validity of a deed delivered by its secretary and general manager in performance of the company’s agreement with the grantee, in consideration of assistance rendered in purchasing a mining claim and allowing improvements to be used by plaintiff in procuring a patent.
    Appeal from Marion Chancery Court; W. T. Mills, Special Chancellor; affirmed.
    STATEMENT BY THE COURT.
    Appellant corporation brought this suit to quiet its title to 80 acres of land, describing it, in section 9, township 17 north, range 15 west, Marion County, Arkansas. Trial was had, and decree was entered quieting the title in the plaintiff to all the land except “that part embraced in the deed from the Morning Star Mining Company to E. F. LeMarshall, ’ ’ particularly describing it.
    The court quieted the title to this piece of land in Douglas N. Everett, Barbara Everett, Miriam Everett and Elizabeth Everett, as the sole beneficiaries in the last will and testament of Isaac S. Craig, unless the Morning Star Mining Company paid to the said minors the sum of $450, with interest from January 1, 1921, at 6 per cent, per annum, within 60 days from the date of the decree. From which decree the Morning Star Mining Company prosecutes this appeal.
    The complaint alleged that appellant company was a corporation, and the owner of the land described, having acquired title thereto by a patent from the United States, dated November, 1893. That, at all times thereafter, except at the time mentioned relative to the occupancy of the defendant, Mulholland, it had been in the actual, open, adverse and exclusive possession of the land, and had paid the taxes thereon every year since the issuance of the patent. That there was on the records of Marion County a deed purporting to convey to the defendant, E. F. LeMarshall, a .certain portion of said land (described as- set out in the decree awarding it to the Everett minors). That the deed purports to be that of the Morning Star Mining Company, executed on the 19th day of October, 1894, by John Reed, president, and George "W. Chase.. The acknowledgment was by Chase alone on the 19th day of October, 1894.' The deed was filed for record on the 10th day of January, 1895. Alleged that the signature of Reed to the deed was a forgery; that the board of directors had never authorized Reed or Chase to execute same. That another deed was executed by Celina. A. LeMarshall and E. F. LeMarshall, purporting to convey, for $500, the said described land to one Ephyiam Craft of Boston, of date of December 4, 1895, filed for record March 24, 1896, and recorded on April 21, 1896. Also alleged the land described in the LeMarshall deed to Craft was not the same as that described in the Morning Star Mining Company to LeMarshall, and that LeMarshall had no title to. the land at the time of the execution of the deed to Craft, nor thereafter, and that both deeds constituted a cloud upon plaintiff’s title, and asked that they be canceled. Alleged, further, that the Morning Star Mining Company became a purchaser of the lands from the Morning Star Company at a foreclosure sale thereof, made in 1912. That C. A. Mulholland went into possession of a portion thereof without right, and erected a store and other buildings thereon. Prayed for an order dispossessing him. Alleged the death of Ephriam Craft in the year 1901, and lack of information as to his heirs.

      Complaint was filed oil tlie 14tli day of April, 1922, warning order issued, and appointment of attorney ad litem for the minors made.
    ■ Mulholland answered in October, 1922, admitting the issuance of the patent in the year 1893, and denying that the deed to LeMarshall was a forgery, or void for any reason, and that the appellant had been in the exclusive-possession of the land since the issuance of the patent. He further alleged that, during the year 1892, E. P. LeMarshall was the owner of the lands described in the deeds set out in the complaint as the Placer mining claim, and that the Morning Star Mining Company was the owner of certain other lands described in the complaint. That both the Morning Star Mining Company and the said LeMarshall were desirous of perfecting the title to said lands by acquiring a patent thereto from the United States Government, and that they entered into an agreement, in which the Morning Star Mining Company was represented by G. W. Chase, its secretary and general manager, by the terms of which the Morning Star Mining Company was to make a placer mining claim embracing the lands owned and claimed by. LeMarshall, and to make application for patent from the United States for all of said lands, and to use the improvements that had been made on that portion of said lands owned by the said E. P. LeMarshall in making its final proof upon said claim, with the expressed understanding that the said LeMarshall would pay his proportionate part of the expenses in securing said patent and that, upon the issuance thereof, the said Morning Star Mining Company would convey to the said LeMarshall that part of the lands owned by him prior to the issuance of such patent, all of which agreement was performed. That the Morning Star Mining Company executed the first deed to LeMarshall set out in the complaint, in compliance therewith. That thereafter the LeMarshalls conveyed to Craft by the second deed described in the complaint; that Craft died, leaving his sister, Susan E. Craig, as Ms only heir; that Susan E. Craig died, leaving by will all of her property to Isaac S. Craig. That defendant, Mulholland, entered into.a contract to purchase from Isaac S. Craig the land herein involved; that this defendant is now in actual possession of said land under said contract, and is entitled to a deed therefor from said Craig upon the payment of the purchase money. Alleged he had been in exclusive and adverse possession of the land for more than seven years; pleaded the statute of limitations as a defense, and also that the Morning- Star Mining Company was guilty of laches, and estopped from prosecuting its claim.
    The LeMarslialls and Isaac S. Craig adopted the answer of Mulholland, admitting only the issuance of the patent from the Government, as alleged in the complaint, and denying that the deeds set out in the complaint were void.
    The death of Isaac S. Craig was suggested, and the case revived in the name of his unknown heirs, for whom an attorney ad litem was appointed, and a warning order issued.
    The guardian of the Everett minors filed a separate answer, alleging that Isaac S. Craig died in 1923, leaving all his property by will to the said minors, for whom he was the legal guardian, and denied all of the allegations in the complaint.
    The said guardian filed a supplemental answer and cross-complaint in 1924, pleading laches as defense to the suit; that defendant Mulholland had, since the institution of the suit, sold Ms improvements on the land involved to the plaintiff, the Morning Star Mining-Company, which had taken possession thereof, and refused to carry out the contract of sale entered into by .Craft and Mulholland, as set out in Mulholland’s answer, and that there was still due upon said contract the sum of $450, for which amount he prayed judgment, as guardian, on behalf of his wards, against the company, or full possession of the lands involved in the suit.

      Reply was filed, denying the allegations of the cross-complaint.
    The facts are, substantially, that the improvements made and occupied by Mulliolland were located on the 80 acres of land patented by the Government to the Morning Star Mining Company, which had paid the taxes thereon, no part of same being assessed to any one else, from the year 1892.
    In May, 1920, the president of the company was informed that Mulliolland was making improvements on part of the land, and gave instructions that he be notified to desist, that the lands belonged to the Morning Star Mining Company. He talked with Mulholland the last part of May, 1920, advising him that the land was owned by the company and that he ’Was trespassing, and must stop further improvements or get off the land.. Witness further stated that the company constructed and owned two frame buildings on this particular piece of land. He also introduced in evidence three plats certified.by the General Land Office of the United States, under date of September 9, 1922, showing three mining claims as follows:
    “Morning Star No. 2.Lode — canceled.
    ‘ ‘ Smelter Lode — canceled.
    “Morning Star Lode — canceled
    “Not reliable in bearing and area.”
    Said one plat indicated a claim as “Orphan Boy”; also one of the plats, undated, contained no reference to five other mining claims, mentioning them, which, he said, never had any existence in fact, because they did not appear in the records of the General Land Office. That he immediately made a search of the records of Marion County, and discovered for the first time the deed set out in the complaint for cancellation, and that neither had appeared on any abstracts of title previously prepared for the company; and also that he was not able to find any mining claims on record at the Harrison Land Office, as above mentioned, and that it was impossible to locate the point of beginning of tbe land described in tbe LeMarshall deed.
    Tbe surveyor of tbe county made a survey in 1920 and found, a store, mill, shop and barn occupied by Mul-bolland on the land; that be had previously made a survey of tbe two acres claimed by Mulholland, and. that tbe buildings were located on these two acres, which are part of the land in controversy. There are two dwellings located on the land described.
    Reed, the president of the company, denied that he had executed the deed to LeMarshall for the company; claimed not to have had any knowledge of it, and that the records of the corporation do not show any authority for the making of . the deed, and that no consideration had been received for it. He also claimed that the company had been in continuous, exclusive and adverse possession of the 80 acres” of land from the receipt of the patent in 1892, paying taxes thereon. That the dwellings belonged to the company; were erected by the company in 1899 or prior thereto. Said abstracts to the deeds made reference to certain mining claims, naming them, thirteen in number.
    The secretary of the company testified that he had no knowledge of the execution or existence of the purported deeds from the company to LeMarshall and from him to Craft. ■ That he was a stockholder, director and vice president of the company at the time these deeds were supposed to have been executed; that George W. Chase had no authority to execute them; that no authority was ever delegated to John Reed or Chase to execute any deeds for the company, as shown by the minute-book of the meetings of the board of directors.
    LeMarshall testified that the deed was executed and delivered to him by the Morning Star Mining Company by John Reed, its president, and George W. Chase, its secretary, conveying the land at the time known as the “Fair Play Mining Claim,” or a portion of it, located in the northeast quarter of the northeast quarter, section 9, township 17 north, range 15 west; that George W. Chase, secretary of the company, proposed to him that he buy the south half of the “Fair Play Mining- Claim,” owned by Cox and McCray, which he declined to do on account of the small area of five acres; that Chase then offered to deed him the whole of the “Fair Play Mining- Claim,” as he intended to g-et a patent for 80 acres in that section, including- the “Fair Play Mining-Claim,” saying then the title would be in the company; that the present claimant was impecunious and would not put up any part of the expenses for obtaining a patent; that he wanted vdtness to buy the claim and allow him to use the improvements for proving up and obtaining a patent, which witness did. He wanted witness to buy the claim and allow him to use the improvements on the south half of the Fair Play Mining Claim for proving up and obtaining the patent, agreeing, when the patent was secured, that the Morning-Star Mining Company would givé him a deed thereto.
    Witness purchased this claim and allowed Chase to so use it in procuring the patent, which was obtained about a year later. Ho then demanded his deed, and Chase replied that he had not figured the costs of the patent. He finally demanded the deed, offering to pay his part of the expense, and was later told the deed was ready for delivery, only lacking the signature of John Reed, president of the company, telling him also his share of the expenses of obtaining the patent was $37.50. Later, in the fall of 1894, as witness was passing his place, Chase called him and told him the deed was ready for delivery, and witness handed him the $37.50 and took the deed. Witness examined the deed, and complained that it only contained about five acres, when he had been promised ten. Some time afterward witness complained to John Reed, president of the Morning Star Mining Company, about it, and was told that Mr. Chase attended to all the company’s business in Arkansas, and it would have to be settled with him. Witness had previously paid Cox and McCray $350 for their interest in the Fair Play mining claim. He subsequently, at the request of Chase, sold his interest to Ephriam Craft, a cousin of Olíase. So far as liis knowledge and belief extended tlie deed from tlie Morning Star Mining Company was not a forgery, and was executed in good faith. That he went into possession under it and continued in the open, notorious and peaceful possession until he sold to Craft, no one else ever claiming ownership. He had no information that the deed was claimed to be a forgery until he received a letter dated M,ay 1, 1922, about the warning order in this case; that he sold the land more than 27 years ago, when his interest therein ended, and he did not know who had paid the taxes on it since.
    Plats relative to the mining claims were introduced in evidence.
    Decree was entered on December 21, 1925, from which this appeal is prosecuted.

      J. H. Black and W. G. Riddick, for appellant.
   Kirby, J.,

(.after stating the facts). The undisputed testimony shows, as claimed by appellant, that the Morning Star Mining Company obtained a patent to the lands from the United States' in the year 1893 and that it has paid the taxes thereon since that time. It is also true that the president of the mining company stated that his signature to the deed, purporting to convey the tract of land to LeMarshall, had been forged, and he and other witnesses testified that the minutes and records of the corporation showed no authority given for the execution of the deed to this tract of land to LeMarshall and receipt of no consideration therefor.

LeMarshall testified, however, that Chase, the secretary and general manager of the corporation, induced him to purchase the Pair Play mining claim from Cox and McCray, for which he paid $350, and allow him to use the improvements on the south half thereof in proving up and procuring a patent for the corporation to the whole 80 acres, at the time agreeing that the mining company would, upon procuring the patent, execute a deed to him for the land embraced in the said mining claim, which he purchased at his instance, and stated that this deed, now claimed to be a forgery, was executed by the company and delivered to him by Chase in carrying out said agreement. This testimony is also undisputed.

The deed itself was recorded shortly after its execution, and the description therein was such that the county surveyor could locate the tract upon which Mul-holland, who had succeeded to the title conveyed therein, made his improvements, and upon which the court held the Everett heirs had a lien for the balance of the purchase money due from Mulholland, and quieted the title in appellant company for the whole tract only upon payment of said purchase money within 60 days, and otherwise decreed to the said heirs the ownership thereof.

Appellant seeks equitable relief herein, for the cancellation of a deed alleged to have been forged, which was recorded more than ‘27 years ago, and was met by a plea of laches, limitations, and adverse possession, supported by the testimony.

Mulholland’s answer, pleading laches and adverse possession, was adopted by all the other defendants, and the fact that the appellant company bought his claim or interest during the pendency of the suit was but a recognition of his right under the contract of purchase, and did not operate to enable them to hold the land against the minors for balance of purchase money, in disregard of Mulholland’s contract for the purchase thereof. Gibson v. Herriott, 55 Ark. 85, 17 S. W. 589; Tatum v. Arkansas Lbr. Co., 103 Ark. 251, 146 S. W. 135.

There is no sufficient excuse for such long delay in proceeding for the cancellation of this deed, under the circumstances that appellant company claimed to be unaware of its existence, notwithstanding it had been of record more than 27 years, purported to have been executed for the corporation by its president, and was signed and acknowledged by the secretary and general manager, long since dead, as well as most of the other principal actors in the transactions, or who had knowledge thereof. Dickson v. Sentell, 83 Ark. 385, 104 S. W. 148; Davis v. Harrell, 101 Ark. 230, 142 S. W. 156.

If LeMarshall’s testimony is true — be is also corroborated by other circumstances in tbe record — and bis statement is undisputed, appellant was estopped to deny tbe validity of its deed shown to have been delivered by its secretary and general manager in tbe performance of tbe company’s agreement with him for tbe conveyance of this particular tract of land, for the assistance rendered by him in purchasing tbe claim and allowing the improvements thereon to be used by the company in procuring the patent for the entire tract.

We find no prejudicial error in the record, and the decree is affirmed.


author: Kirby, J.

text:
    Rinke v. Union Special School District No. 19.
    Opinion delivered May 16, 1927.
    3. Eminent domain — insteuction as to maeret value. — An instruction that the amount a school district should pay for land condemned for school purposes would he its fair cash market value at the time of taking, allowing a reasonable time within which to effect a sale, held not erroneous.
    2. Eminent domain — measuee op damages. — The measure of a landowner’s compensation is the market value of the land at the time of taking for all purposes, including its availability for any use for which it is plainly adapted, as well as the most valuable purpose for which it can be used.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      Ben F. Reinberger, for appellant.

      Miles ■& Taylor, for appellee.
   Kirby, J.

This is a proceeding on the part.of the Union Special School District No. 19 to condemn four acres of land of appellant for an additional site and grounds for conduct of its school, at the time located on an qcre and a quarter of land, which was inadequate for the purpose.

The court required $250 deposited in its registry for the payment of damages to be assessed. Judgment was rendered in favor of the owners of the land, fixing compensation at $400, from which, this appeal is prosecuted.

Many witnesses testified, and there was a wide range of opinions as to the value of the land taken, varying from $50 to $400 an acre.

No proper exceptions were saved and carried into the motion for a new trial, although objection was made to the introduction of some and the exclusion of other testimony.

Appellants insist that the court erred in its instructions to the jury, seeming to complain of that paragraph of the instructions telling the jury “the amount of money that the school board ought to pay would be the fair cash maiket value of the land at the time of the taking;” * * * “the market value is what the land would be reasonably worth on the market for a cash price, allowing a reasonable time within which to effect a sale.”

The Constitution provides that private property shall not be taken for public use “without just compensation therefor,” (art. '2, § 22, Constitution) nor “appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money.” Art. 12, § 9, Constitution.

The law provides the procedure for the assessment of damages or fixing the compensation for the land taken, and .just compensation is held, by a long line of our decisions, to be the actual market value of the land at the time of the institution of the condemnation proceedings, and, since the. compensation was to be paid in money, no error was committed in the court’s telling the jury that the amount of money the school board ought to pay would be the fair cash market value at the time of the taking, stating it to be what the land would be reasonably worth on the market for a cash price, allowing reasonable time within which to effect the sale.

The court further instructed the jury, giving the rule announced in Ft. Smith & Van Buren Dist. v. Scott, 103 Ark. 405, 147 S. W. 440, as follows:

“The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking, for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market. ”

It was the province of the jury to determine the reasonable market value of the land, based on the statements of the witnesses testifying thereto, and, although they greatly discounted the opinions of witnesses that appeared unreasonable and extravagant, they fixed the amount of compensation under instructions properly declaring the law, and the verdict cannot be said to be other than just compensation for, or the fair market value of, the land taken.

We find no error in the record, and the judgment >is affirmed.


author: Mehaeey, J.

text:
    Gilbert v. Patterson.
    Opinion delivered May 16, 1927.
    1. Mines and minerals — agreement to pay out of oil produced.— Under an agreement to pay $60,000 out of one-third of the first oil accruing to the lessee from the lease, the lessee was bound to pay out of the first oil produced, and if no oil was produced there would be no obligation to pay.
    2. Mines and minerals — obligation of assignee of lease. — Where sublessees assumed the conditional obligation under a lease, the obligation continued to be conditional.
    Appeal from Columbia Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      C. E. Cooper, McGuire & Marshall and Cravens & Cravens, for appellant.

      Joe Joiner and Alvin D. Stevens, for appellee.
   Mehaeey, J.

The appellant filed an intervention in a suit pending in the Columbia Chancery Court, but we deem it unnecessary to set out the intervention or any of* the pleadings at length. The only question for the determination of this court is the meaning of the contract with reference to the payment of what was claimed to be appellant’s portion of the $60,000 mentioned in the lease and assignments. And this involves the construction of that paragraph of the contract which reads as follows:

<£Now therefore, in consideration of $1 paid to it by M. G. Haskell, the receipt of which is hereby acknowledged, and the obligations entered into by the said M. G. Haskell, under the terms of a written agreement dated April 17, 1922, made and entered into by and between said M. G. Haskell and said Columbia Oil & Gas Company, which agreement is made a part hereof, in which the said M. G. Haskell obligated himself, in consideration of the turning over to him of the property of the said Columbia Oil & Gas Company, to begin, on or before June 1, 1922, actual drilling operations for an oil and gas well upon any part of the above described acreage he may select, and to continue said drilling with due diligence, and further drill two additional test wells on said property, and to carry out the contracts expressed in the original leases; and, further, to pay the Columbia Oil & Gas Company the sum of $60,000 out of one-third of the first oil accruing to said Haskell from said lease; and, further, to pay said oil and gas company an overriding 1/24 royalty on all oil and gas produced from said acreage, which is to be paid in the customary manner; and other good and sufficient considerations as expressed in said agreement. ’ ’

Haskell, in his assignment to the Wichita Petroleum Company, inserted in said assignment that the petroleum company, for itself, its successors and assigns, agrees to assume said obligation equally with said M. G. Haskell, and the acceptance of this assignment shall constitute an agreement upon its part of so assuming said obligation with the said M. G. Haskell, one-half of said amount to be paid out of the oil accruing to the said Wichita Petroleum Company and the remainder out of the oil accruing to the said M. G. Haskell.

Haeh assignee assumed the obligations of tlie original lessee to the extent of its proportion, and the amount involved in this suit is $11,250. The disagreement is as to the meaning of the following clause:

“For the payment of $22,500 out of one-third of the oil produced therefrom, and the said Wichita Petroleum Company, for itself, its successors and assigns, agrees to assume said obligation equally with the said M. G. Haskell.” Then it is provided that one-half of said amount be paid out of the oil accruing to the said Wichita Petroleum Company and the remainder out of the oil accruing to the said M. G. Haskell.

And, as stated by appellant in its brief, this leaves the court with but one question to determine, and that involves only the construction of the language under which.the O. L. D. Operating Company assumed the payment of the oil obligation of $11,250. And it is agreed that the obligation of the O. L. D. Operating Company is the same obligation assumed by the Wichita Petroleum Company when it purchased a one-half interest in certain of the leases from M. G. Haskell. And it all depends upon the meaning of the clause in the lease to Haskell when he agreed to pay $60,000 out of one-third of the first oil produced from the property. If that means that the lessee was to pay $60,000, whether the oil produced equaled that amount or not, the appellant would owe the $11,250. If, however, it means that the payment is to be made only out'of oil produced, the appellant does not oAve it, because it is conceded the oil was not produced out of which it could be paid.

As stated by the Court of Appeals in a recent case:

“These quotations seem to be clear and unambiguous to the effect that the only obligation of appellee, as the deferred portion of the purchase price, was to pay from oil produced and sold from the leases. Appellants contend that the contract which resulted in the assignment was such that, if the court should determine the assignment to mean payment only from oil produced and sold, the assignment should be reformed to agree therewith! There is no such allegation or showing of mutual mistake or fraud as to authorize such reformation.” * * * The court, continuing, said: “It seems to us that, to take the contract alone or the memorandum alone, or, as should he done, both together, it is clear that the intention of the parties was that the consideration should consist, first, of a cash payment of $71,000; second, of a further sum of $177,500 to be paid from, and only from, the proceeds of oil produced on and sold from the leaseholds by appellant.” Allen v. Phillips Petroleum Co., 13 Fed. Rep. (2d Series) 584.

The lease in the above case is very similar to the one involved here, and we think the contract here is clear and unambiguous, and that it means that the lessee is to pay only out of the oil produced from leaseholds. The lessee was to drill the wells and pay the amount specified out of one-third of the first oil accruing to said Haskell from said leases. And in assuming these obligations by the subsequent lessees they, nf course, assumed no greater obligation than the original lessee. And the obligation, we think, was to pay out of the first oil produced, and, if no oil was produced, there would be no obligation to pay.

The lessee was to drill the- wells, and he would thereby determine whether there was any oil or gas on the lands. If there was no oil or gas found, there would be no obligation to pay anything. .

The Court of Appeals has s¡aid in another case:' “There the debt was definite. There the debt is contingent. No obligation to pay comes into being unless a fund arises from the sale of the gas productions.’? Watchorn v. Roxana, Petroleum Co., 5 Fed. Rep. (2d Series) 636.

In another recent case the Court of Appeals said: “The payment of the additional $12,500 is confined to the first oil produced and saved from the lease tract. No absolute obligation to pay is created. Such an obligation could have been made explicit, if so intended.” Smith v. La. Oil Refining Corporation, 12 Fed. Rep. (2d Series) 378.

The appellee argues that the word “assume.” in the deed, “in assuming the obligations” means to pay. We do not agree with the appellee in this contention. We think, as used here, it means to pay out of the first oil produced, and .that this is the obligation he assumes, and does not assume any absolute obligation to pay. We have not overlooked the cases cited by appellee that, when one purchases property and assumes an indebtedness against the property, he thereby makes himself personally liable for the debt. But this is because there is a debt existing, an absolute obligation, and, when he assumes that, he agrees to pay. But in the present case he assumes the obligation of Haskell, which was to pay out of one-third of the oil produced.

In the case of May v. Ewan, 169 Ark. 512, 275 S. W. 754 the contract provided: “The parties of the second part agree to pay an annual rental for the said clear lands, 40 lbs. of lint cotton per acre; said lint cotton to he picked, ginned, haled and delivered to the said party of the first part by the said parties of the second part at the railroad station at Postelle, Arkansas, and to be from the first picking of cotton from said lands'; same to be delivered as soon as same is picked, ginned and baled.”

The court said in this case: ‘ ‘ That the appellant insisted that, inasmuch as the contract provided that the rent should be paid from the first picking of cotton from said lands, s'ame to be delivered as soon as same is picked, ginned and baled, they cannot be held liable for any cotton not grown.”

And the court further said: “It is true the contract referred to cotton grown on the land, and it is also true that enough cotton was not grown to pay rent. But we think it was clearly contemplated by the parties that enough cotton would be grown to pay the rent, for the contract' provides that the rent should be paid from the first picking of cotton. The contract contained no condition that the rent should be payable provided enough cotton was grown to do so, and we think; the fair interpretation of the contract is that 40 lbs. of lint cotton should be paid for each acre of land, and was to be paid from the first cotton picked, but was to he payable in any event.” May v. Ewan, 169 Ark. 512, 275 S. W. 754.

In the above case there was the absolute promise to pay as annual rental 40 lbs. of lint cotton per acre. The contract then provided that it should be picked, ginned and baled, etc., and should be paid from the first picking. There was evidently no doubt in the minds of the parties that cotton would be raised. It is wholly unlike the production of gas. When one drills a well for gas or oil, every one knows that he may or may not get oil, and the contract here expressly provided for the payment out of the first oil produced. There the contract provides tfor the payment 'of 40 lbs. of lint cotton, and we think there is a clear distinction between this case and the case of May v. Ewan.

It would serve no useful purpose to cite additional authorities or discuss the case further. We have reached the conclusion that there was no obligation to pay unless oil was produced, and the case is therefore reversed, and remanded with directions to dismiss the claim for the $11,250, and for such further proceedings as necessary with reference to the claim of appellant against appellees.


author: Mehaffy, J.

text:
    Berlin v. Rainwater.
    Opinion delivered May 16, 1927.
    1. Evidence — stock books op bank corporation. — The record of the stock of a bank corporation, required by Crawford & Moses’ Digest, § 686, and by Acts 1923, p. 531, § 16, to be kept and to contain transfers, constitutes the best evidence as to who were stockholders in such bank.
    2. Evidence — assessment on bank stock by commissioner — certified copy. — In an action by a bank commissioner against the executor of a deceased stockholder to recover an assessment on his stock, a certified copy yf the assessment was admissible under Crawford & Moses’ Dig., § 667.

      3. Executors and administrators — exhibiting claim against EStATE. — A complaint by the State Bank Commissioner, under Crawford & Moses’ Dig., § 702, against the executor of a deceased ■stockholder to recover an assessment on ¡bank stock should not ¡be dismissed for noncompliance with §§ 97, 100 and 101, relative to exhibiting claims against estates, as such action is not a demand based upon a contract or tort, but is a statutory liability.
    4. Executors and administrators — personal liability. — The executor of a deceased stockholder of a bank would not be liable under Crawford & Moses’. Dig., § 702, for the amount of an assessment against stock in a suit by the State Bank Commissioner, unless he had property or funds in his hands with which to pay the judgment.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      Jones & Hooher, for appellant.

      Bridges & McGaughey, for appellee.
   Mehaffy, J.

The plaintiff, who is the appellee here, is 'successor as State Bank Commissioner to Charles McKee, who, on the 5th day of September, 1925, filed in the Jefferson Circuit Court the following complaint:

‘ ‘ The plaintiff, Charles McKee, State Bank Commissioner in charge of the affairs of the Citizens’ Bank of Pine Bluff, Arkansas, for cause of action against the defendant states:
“That the said State Bank Commissioner, on the 5th day of January, 1925, took charge of the affairs of the Citizens’ Bank of Pine Bluff, Arkansas, under and as provided by the-laws of said State of Arkansas; and, as provided by the laws of said State, he, on the 7th day of January, 1925, made an assessment against the stockholders of said bank to the amount of one hundred per cent, of their respective holdings of the capital stock therein; that the defendant, Dave Berlin, as executor of the will of Meyer Berlin, deceased, at said times owned and held capital stock of said bank to the amount of $550; that said stock to the amount of $550 was owned and held bv Meyer Berlin’, who died on January 5, 1924; that the defendant, Dave Berlin, was by the probate court of Jefferson County, Arkansas, on the 24th day of January, 1924, duly appointed executor of the will of said Meyer Berlin, deceased, and is now the duly qualifíéd and acting executor of such estate; that said' amount of $550 has been demanded of him on account of the indebtedness herein stated, but he has failed to pay same.
“Wherefore plaintiff prays judgment against said Dave Berlin, as executor of the will of Meyer Berlin, deceased, in the sum of $550, with interest from January 7,1925, until paid, and all costs herein expended, and for all other relief. ’ ’

The appellant, defendant below, filed the following answer: “Comes the defendant, Dave Berlin, as executor of the will of Meyer Berlin, deceased, and for answer to the complaint of plaintiff herein, admits that he is the executor of the will of Meyer Berlin, deceased, as alleged in plaintiff’s complaint, but he denied flat, as such executor, he holds capital stock of the Citizens’ Bank of Pine Bluff to the amount of $550, ■ad denies that the said Meyer Berlin held such stock at the time of his death. He denies that any demand has been made upon him as such executor, by the plaintiff, as State Bank Commissioner, to pay said assessment, and denies that the said Bank Commissioner is entitled to collect from the estate of the said Meyer Berlin any sum whatever by reason of any stock so alleged to have been owned or held by the said Meyer Berlin at the time of his death. Having fully answered, defendant prays to be dismissed with his reasonable costs.”

The defendant also filed the following motion to non-suit plaintiff: “Comes Dave Berlin, as executor of the will of Meyer Berlin, deceased, and moves the court to dismiss the complaint, of plaintiff, Loid Rainwater, filed against him as executor of the will of Meyer Berlin, and for cause states that said demand has not been verified as required by §§ 101,102,103 and 104 of Crawford & Moses ’ Digest of the Statutes of Arkansas. And this defendant moves to dismiss said complaint because of such failure, as provided by § 104 of said Crawford & Moses’ Digest of the Statutes'of Arkansas; that defendant have his costs herein expended, and all other and further relief.”

There was a judgment for the plaintiff. Defendant filed motion for new trial, which was overruled, and appeal was prayed to the Supreme Court. The defendant was given time to file hill of exceptions, which he filed within the time.

The plaintiff introduced the assessment, showing that the capital stock was assessed $300,000, or, rather, an assessment of that amount was made against the shareholders. The assessment was made on January 5, 1925. Notice of said assessment was also introduced. Said assessment was to he paid on or before January 8, 1925.

It was agreed by counsel that Dave Berlin is the executor of Meyer Berlin, deceased, and is duly qualified as the executor of the will of Meyer Berlin, deceased, qualified January 24, 1924, and has continuously been and acted as such executor, since that time.

R. L. Byrd testified, in substance, that on the 5th day of January, 1925, and prior thereto, he was in the employ of the Citizens’ Bank of Pine Bluff, in the note department, and assistant cashier, and he was familiar with the stock books in the bank, and that he would recognize them. He stated that the books he held in his hand were the stock records of the Citizens ’ Bank of Pine Bluff as regularly kept at the close of business. That it showed certificate No. 351, issued to Meyer Berlin November 17,192.1, and his receipt, November 17,1921, signed by Meyer Berlin. That there were 22 shares of the stock, of the par value of $25 per share; showed that, after the stock had been delivered to Meyer. Berlin, it had not been transferred; that, so far as the record showed, there had never been any transfer made. The Meyer Berlin to whom this stock was issued and who signed the receipt died about January, 1924; was familiar with Meyer Berlin’s signature, and stated that the signature on the receipt for the stock on the record' book was that of Meyer Berlin. It is the same Meyer Berlin of whose estate Dave Berlin is executor. The date of the certificate is November 17, 1921, and receipt was issued the same day. The record of transfers of stock was kept by Mr. H. B. Strange, cashier. Witness said he did not keep them; that they might have 'been transferred upon the record of the county court in the county clerk’s office, so far as witness knew; that all he knew was the record which he had before him, and which he did not keep; that the book was kept by Mr. Strange, and the record was in Mr. Strange’s handwriting, as far as he could tell; that the record which he had in his hands is simply the stock certificate book, and that they also keep a record or stock ledger, which shows any transfer of stocks. Mr. Strange had charge of it, and kept all records about which he had been testifying, and that they were in his custody until the failure of the bank. Since that time it has been in the hands of the Bank Commissioner. It was turned over about the 8th of January. The record passed into the hands of the present Bank Commissioner August 8,1925. The bank failed in January, 1925.

Witness testified that he had been in the Bank Commissioner’s employ since January 5, 1925; that he was employed by Mr. Majors a few days after the bank failed.That he was pretty familiar with the records of the Citizens’ Bank, and there are no other records relative to keeping and transferring stocks except the one he has. Immediately after the closing of the bank, while he was still in the employ of the bank, he became in the employ of the State Bank Commissioner, and had.access to the books by virtue of his employment. Books had been kept in charge of the deputy bank commissioner, who had charge of the Citizens’ Bank. He has had access to them all that time. There are no other records in the hands of the State Bank Commissioner or his deputies relative to the stock. That his duties in the office of the Bank Commissioner were keeping the books.

Mr. H. F. Grigsby testified in substance as follows: That he was deputy bank commissioner in charge of the affairs of the Citizens’ Bank, and that he became snch August 8, 1925; that he had charge of the records and affairs of the bank since. He has stock certificate ledger and ledger of the issuance of stock certificates' kept by the bank, as continuously shown from transfer to transfer. The record shows whom these stocks were with at the time of the failure. Meyer Berlin was a stockholder at that time, the holder of certificate No. 351, which was 22 shares of the stock at the par value of $25 each. There is no record of any transfer since this transfer was issued. An assessment was made on it, but' no portion of it has been paid. There is an assessment against, the stock of the par value of $550, and it remains unpaid.

Witness stated that he had been testifying from the stock certificate ledger of the Citizens’ Bank of Pine Bluff. The stub of the actual transaction, certificate 351, 22 shares of stock issued in the name of Meyer Berlin, November 17, 1921, signed on the line, Meyer Berlin, canceled certificate 335, the new one issued, 351. No. 335 is the certificate from which 351 was issued. That he has read the stub. Record shows certificate 335 is canceled, which was drawn in the name of H. B. Byrd for 270 shares. Out of this 270 shares, 22 shares were transferred to Meyer Berlin. He said that he was just testifying what the record shows. The date of the certificate to Byrd was April 7, 1921. Witness stated that he became deputy bank commissioner August 8, 1925. The transaction that he had testified about occurred a considerable time before he became deputy bank commissioner; that none of them was in his handwriting; that he knew nothing about them at all except as they appeared in the records of tfie Citizens’ Bank as it came into his hands. .He has stock-book in his possession as deputy bank commissioner. This record shows the stock belongs to Méyer Berlin.

R. L. Byrd, being recalled, testified in substance that the book he had in his hand was the stock ledger of the Citizens ’ Bank. That it was regularly kept to the close of the business while the Citizens’ Bank was in business. That it was in the hands of H. B. Strange, who was the cashier. He is now someAvhere in Florida. This is the same Meyer Berlin that witness testified about, who died in January, 1924, and Dave Berlin was appointed executor. Witness stated that the records he has testified about are the only ones kept by the bank relative to stock issued and transferred. Witness did not keep those records.

Dave Berlin testified in substance that he was the executor of the estate of Meyer Berlin, who was the owner of considerable real estate in ' Pine Bluff. He doesn’t remember how much personal property; doesn’t remember what the valuation was when he paid the inheritance tax. Whatever the record shows, that is it. He had more than $10,000 at the time of his death, above his liabilities. There was more than $2,000 in Dave Berlin’s hands January 7, 1925. Witness does not remember how much property or money he got out of the estate. He gave it to his sister, and did not get anything; gave everything’ to the sister. It was admitted that the deed from Dolly Adelburg and Dave Berlin to Bessie Berlin was after September 5, after the summons was served in this case. The property that was conveyed after the service of the summons was worth more than $2,500.

At the close of the evidence the court rendered judgment for the amount sued for.

Appellant’s' first contention is that the court erred in admitting testimony which, in the form presented, was claimed to be secondary, not the best evidence.

We cannot agree with counsel in this contention. The witness .sufficiently identifies the books of the bank, and these are not only required to be kept, but the statute provides that the stock of every bank shall be deemed personal property, and, in case of sale, shall be transferred only on the books of such corporations in such form as the Commissioner shall prescribe. The act of 1923 amended some sections and repealed others, but it did not repeal the above section, which is § 686 of Crawford & Moses’ Digest. But in act 627 of the Acts of 1923 it is expressly provided: ’“The stock of every such 'corporation shall be deemed personal property and be transferred only on the books of such corporations in such form as the directors-may prescribe.”

Where a record of the acts and proceedings of a private corporation is required by law to be kept, and even where such a record is actually kept, although not required- by law, such record constitutes the best evidence of its contents, and parol evidence is not admissible if the record is accessible.

“Dyke Brothers, a partnership composed of two brothers of that name, were recorded as being owners of 11 shares of stock. Their contention is that certificates had never been issued to them, and that they were not in fact stockholders. We are of the opinion, however, that there is enough evidence-to establish the fact that they were stockholders, and, that being true, there is no effort to show that that relation was severed prior to the default of the bank in regard to the public funds. The list of stockholders certified by the secretary of the corporation,- on file in the. clerk’s office, is competent evidence to show who were the stockholders and is prima facie evidence of that fact.. * * * Mr. Weir was certified on the list heretofore referred to as the holder of 3 shares of stock. He testified that he subscribed to the shares of stock and gave a check in payment of the amount, but the shares were never actually delivered to him. The evidence was, we think, sufficient to establish’ the fact that he was in fact a stockholder.” Bank of Midland v. Harris, 114 Ark. 344, 170 S. W. 67, Ann. Cas. 1916B, 1255.

“No transfer of such stock will secure it from attachment until it is entered upon the books of the corporation, showing the names of the parties, the number of shares, and the date of the transfer. * * * The plaintiffs undertook to show that the transfer to the defendant was so entered upon the books of the People’s Bank. For this purpose they offered the deposition of Sumner Percival, tlie cashier, not taken upon written interrogatories, in which he testified that he made the transfer on the hooks of the hank. The defendant objected to the admission of this portion of the deposition, contending that the only- proper evidence would be the books. But the presiding judge' admitted it, and ruled that it was legal evidence of transfer without the production of the books, sufficient for the consideration of the jury. The record of the transfer could not thus be properly proved by parol testimony. The verbal statement of the cashier was inadmissible, and, if it was incumbent on the plaintiffs to prove that the transfer was recorded on the books of the bank in order to maim tain their action, a new trial must be granted. * * * A transfer of bank stock is not thus valid until recorded. Until that is done, a creditor may attach it without alleging or proving fraud.” Scowhegan Bank v. Cutler, 49 Maine 315.

In speaking of books and records of private corporations as evidence, it is said:

“Again, such records are received in. evidence generally to prove corporate acts of the corporation,' such as the list of its stockholders, its by-laws, the formal proceedings of its board of directors, and its financial conditions when its solvency comes in question.” 10 R. C. L. 1169. '

R. L. Byrd testified that he was assistant cashier of the bank, familiar with its stock-books so that he would recognize the books, and the book he had in his hand* was a stock record of the Citizens’ Bank of Pine Bluff, as regularly kept at the close of the business, and then testified about the record showing Meyer Berlin to be a stockholder. Also stated that he had seen the book time and again, and he knew it to be the stock certificate book. He not only testified that the record showed that this stock was issued to Mr. Berlin and Mr. Berlin had given his receipt for it, but there was no record that it had ever been transferred.

There is no controversy in this ease about the books being properly kept, and Mr. Byrd testified that they were regularly kept, and that they showed Berlin to be a stockholder, and did not show any transfer of any such stock, and, in addition to that, the undisputed proof showed that Berlin himself signed a receipt for the stock. The certified copy of the assessment was properly introduced. Crawford & Moses’ Digest, § 667.

. The next contention of appellant is that the complaint should have been dismissed because there had been no compliance with § 100 of Crawford & Moses ’ Digest, providing how a claim or demand should be exhibited against an estate, and § 101, which provides that the claimant shall also append to his demand an affidavit, etc. Section 100 provides any person may exhibit his claim against any estate as follows: “If the demand.be founded upon judgment, note or written contract by delivering to the executor or administrator a copy of such instrument with the assignment and credits thereon, if any, exhibiting the original, and, if the demand be founded on an account, by delivering a copy thereof, setting1 forth each item distinctly and the credits thereon.”

It has been said by this court that “the term ‘demand’ is comprehensive, and includes all claims capable of assertion against the estates of deceased persons, whether arising out of contract or tort, and whether the suit to establish the same is begun by ordinary action or in the probate court.” Haden v. Haden, 105 Ark. 95, 150 S. W. 415.

The cause of action in this case, however, does not arise out of contract or tort, but the cause of action is purely statutory. Moreover, this is not a claim against the estate of Meyer Berlin, deceased, in the sense of the statute providing for filing claims against the estates of deceased persons. The statute creating this liábility provides: “That persons holding stock as executor, administrator, guardian or trustee shall not be personally liable as stockholders, but the estates and funds in their hands shall he liable in like manner and to the same extent as the testator, intestate, ward or person interested in such trust fund would he if living and competent tp. act and hold the estate in his own name.”

It will be observed that the above statute provides or creates a cause of action against administrators, and they may be required to pay out of the estates or funds in their hands. It might happen many times that a person owning stock in banks would die, administration be had on their estates, and the time for filing claims expire before the bank failed and before any cause of action accrued. If the filing of the'claim, as provided by § 100 of Crawford & Moses’ Digest, should be held applicable in a case like this, then § 97 of Crawford & Moses’ Digest would also be applicable. And a portion of one paragraph of that section provides: “and all demands not exhibited to the executor or administrator as required by this act before the end of one-.year from granting of letters shall be forever barred.”

Evidently the Legislature, in passing the act under which this suit was brought, had all those things in mind, and it therefore provided that suits might be brought against administrators for the purpose of reaching estates or funds in their hands. This claim did not arise during 'the lifetime of the owner of the stock. There was no claim whatever against him nor against his estate at the time he died. The liability arises when the assessment is made, and in this case it was practically a year after the death of Mr. Berlin. ■ If the administrator, under the directions of the probate court, liad sold property or compromised a debt, or in any other way had come in possession of bank stock and held it as administrator, he would be liable under the statute, although the deceased had never owned the stock. It ivas therefore not a debt of the testator. He never owed it. There was never a time during his life when he was liable.

In a case tried in the Federal Circuit Court of South Dakota it was said:

“While it is insisted that the claim is barred, it is as earnestly insisted that proper practice requires that.the' question whether the claim is barred or not should be left to the county court of Minnehaha County to determine, following the practice in Wickham v. Hull, 60 Fed. 326. If this court was of the opinion that the decision of this case required the court to construe a State statute, it would do so; but, it being of the opinion that it is not necessary so to do, it will proceed to dispose of the case upon the only grounds that to it seem tenable. Any theory upon which it is sought to maintain that the claim here attempted to be enforced is an ordinary claim against the estate of Charles C. Carpenter, deceased, to be presented and allowed in the manner required by the laws of the State of South Dakota, and, if not so presented and allowed, to be forever barred by the statute of nonclaim of said State, involves a total misconception of the object, meaning, and effect of §§ 5151, 5152, Bev. St. U. S'.
“Section 5151 proyides: ‘The shareholders of" every national banking association shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.’
“Section 5152 provides: ‘Persons holding stock as executors, administrators, guardians or trustees, shall not be personally subject *to any liabilities as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in such trust funds would be, if living and competent to act and hold the stock in his own name.’
“Now, it was not necessary for Congress to provide by law that the estates of decedents should be liable for the debts of deceased persons. That result would fol-Ioav, irrespective of § 5152'. But Congress intended to, and did, provide that the estate of the testator or intestate in the hands of an executor 01' administrator should he liable in like manner, and to the same extent, as the testator or intestate would be if living, and competent to act, and held the stock. By the language of the section last referred to, the death of the testator or intestate does not in any way affect the liability of the estate of the testator or intestate, except, if no liability on the stock arises until after the estate is fully distributed, then there would be no estate to be charged.' On the 23rd day of November, 1896, when the Dakota National Bank failed, Prances G-. Carpenter, as the executrix of the estate of Charles C. Carpenter, deceased, under the laws of the United States and of South Dakota, was a shareholder therein. To the extent of 100 per cent, of the par value of the stock held by her, the estate of Charles C. Carpenter in her hands on that day was liable; not as if Carpenter was dead, but in the same manner, and to the same extent, as if he was living; the clear object of the statute being to make the estate liable for a debt arising after the death of a testator or intestate, as well as those arising before.” Zimmerman v. Carpenter, 84 Fed. 747. See also Brown v. Ellis, 86 Fed. 357; Rankin v. Miller, 207 Fed. 602.

There are numerous authorities supporting the views that are herein expressed, but we deem it unnecessary to call attention to more of them.. It will be observed that the statute quoted in the last case, § 5152 of Revised Statutes U. S., is very similar to the latter part of § 702 of Crawford & Moses’ Digest, which reads' as follows: “Provided, that persons holding stock as executors, administrators, guardians or trustees shall not be personally liable as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or persons interested in such trust fund would be if living, and competent to act and hold the estate in his own name,”

The administrator would not he liable unless he had the estate or funds in his hands with which to pay - any judgment that might be had against him. If a person dies, leaving stock in a bank, and his estate is fully administered and the bank stock disposed of, whether by sale or transferring it to the heirs or the person to whom it might be given by will, there would then be no liability against the administrator. The administrator and executor are liable under this statute only when they have property or funds in their hands, as such administrator or executor, with which to pay the judgment. And if they have no such funds, they are not liable. The statute expressly provides that-the estates and funds in their hands shall be .liable.

We find no error, and the’judgment is affirmed.


author: McHaNey, J.

text:
    Rouw v. Arts.
    Opinion delivered May 16, 1927.
    1. Partnership — statement of account — A statement of a partnership account rendered by public accountants at the instance of one partner without the knowledge or consent of the other partner is. not binding on the latter, unless it is otherwise established as correct by competent evidence.
    2. Evidence — hearsay. — -Testimony as to the correctness, of a statement of a partnership account by a witness who made up the account from work sheets furnished him 'by others not testifying held hearsay and incompetent Where the Witness himself made-no examination of the partnership books.
    3. Appeal and error — conclustveness of chancellor’s finding. — ■ Where the evidence in -a chancery case is so unsatisfactory and conflicting that it cannot be said -as -a matter of law that the decree is clearly against the preponderance of the evidence, the decree will be affirmed.
    Appeal from Washington Chancery Court; Hugh Dinsmore, Special Chancellor;
    affirmed.

      Roy Gem, for appellant.
    • John W. Nance, for appellee.
   McHaNey, J.

This is an action by appellant for an accounting of certain partnership transactions between himself and appellee, and involves various deals and enterprises in different localities, regarding the purchase and sale of fruit, melons and vegetables, beginning in the latter part of 1919 and running through the year 1920. A disagreement arose between them in the latter part of 1920 or in 1921 as to the profits and losses on their transactions, and, not being able to settle their difficulties and wind up their partnership transactions, appellant brought this action in the Washington Chancery Court for an accounting, claiming that appellee was indebted to him in a large Sum of money, for which he prayed judgment, or for whatever amount the accounting might disclose to be due him, in which he asked for the appointment of a master to state the account. Appellee answered, denying any indebtedness to appellant, and claimed that appellant was very largely indebted to him. He made his answer a cross-complaint, and joined in the prayer for an accounting, and for .judgment against appellant on his cross-complaint for the amount shown to be due him by such an accounting. Thereafter the court appointed a master to take evidence and' state an account between them, and to report his actions to the court for its action thereon. The master proceeded to the discharge of his duties, took a great mass of testimony, running through a number of volumes of record, and resigned. The .parties then agreed that J. W. Grabiel be appointed as master to succeed him, as master in succession, and the court made an order appointing him to state the account between the parties. The master made a detailed finding under separate'paragraphs, relating to the different deals, designating them by the names given the different deals by the parties, and found that appellant was indebted to appellee for different transactions handled by him in the sum of $3 0,713.42, and that appellee was indebted to appellant for different transactions handled by him in the sum of $3,970.44, the difference between these items being $6,742.98, which is the amount the master found to be due appellee by appellant in settlement of'their partnership differences. Both parties filed exceptions to the master’s report, and, upon a hearing before the court, the master was permitted to amend his report in one particular, which did not change the result. The court thereupon entered a decree for the amount found to be due appellee by the master, and from this decree comes this appeal.

Appellant bases his action very largely, if not almost entirely, upon an audit made by Gilbertson & Company, Oklahoma certified public accountants. This audit was made at the instance of appellant, and without the knowledge or consent of appellee, and the result of this audit would therefore not be binding on him unless it is otherwise established to be correct by competent .proof. Mr. Gilbertson testified that the detailed check of the books was made by James Cumberford, assisted by D. A. Augustus, and that Mr. Cumberford, the last time he knew about him, lived in Chicago, and that Mr. Augustus is dead; that his report as auditor was made up from the work sheets furnished him by these gentlemen, and that he bases his belief in the correctness of the account on his-confidence in the work of Cumberford and Augustus. Appellant’s testimony therefore with reference to the correctness of the audit and as to what the books showed is entirely hearsay, as Gilbertson made no examination of the records himself, and could only testify as to what the work sheets of Cumberford and Augustus reflected after summarizing these work sheets, in the form of a statement of the different accounts. This rendered the testimony and the different statements as reflected by the audit incompetent and valueless in the hearing before the master and the court. To have made same competent testimony, Cumberford and Augustus should have testified to the correctness of the'work sheets. In the case of Johnson v. Berg, 147 Ark. 323, 227 S. W. 413, the first syllabus reads as follows:

“Testimony by the owner of a set of abstract books as to the date of a certain deed as shown by the abstract books is hearsay where witness did not keep the Nooks himself and could not testify that the entries therein were correct.”

The other evidence in the record is quite unsatisfactory, We have examined same carefully, and are unable to say that the decree of the chancellor is against the clear preponderance of the evidence. In Leach v. Smith, 130 Ark. 465, on page 469, [197 S. W. 1160-1162], this court said:

“In law cases the jury, in the first instance, are triers of fact, and the trial judge, on a motion for a new trial, may review the evidence to determine whether the verdict is against the preponderance thereof. This court, on appeal, in law cases leaves the jury and the presiding judge to weigh the evidence and decide as to its preponderance. This is peculiarly their function, and we do not set aside the results thus attained where there is any evidence at all of a substantial character, that is, legally sufficient to sustain the finding bn the issues of fact. In other words, in law cases this court, on appeal for review for errors, is not a trier of facts. ■ But ' in chancery causes the procedure is entirely different. When chancery causes reach this court on appeal, they are taken up for trial de novo on the record made up in the lower court, that is, on the same record, but the law and the facts are examined the same as if there had been no decision at nisi prius. In determining the issues of fact by this court in chancery causes, no weight is given to the findings of fact by the trial court, unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. But the issues of fact, as well as law, are tried by this court anew.
‘ ‘ The rule was early announced, and has been consistently adhered to, that the findings of the chancellor will not be set aside by this court unless they are clearly against the preponderance of the evidence. This simply means that, on a trial anew of the issues of fact in a chancery cause on the record as presented to this court oh appeal, unless it is clear to- our minds, that is, unless we are fully convinced as to which of the parties litigant is entitled to the decision, we accept and adopt the findings of the chancellor as our own, and treat them as conclusive. The meaning of the rule may he shown by; this simple illustration: When chancery causes are taken up for determination by this court, the judicial balance, so to speak, stands at perfect equipoise. One side of the scales is labeled ‘appellant,’ the other ‘appellee.’ The testimony in the record is examined, and all that is incompetent is discarded. That which remains for appellant is put on his side, and that for the appellee oh his side, 'and if the scales are evenly balanced, or so nearly so as to leave the judges in doubt.as to where lies the greater weight, then the decision of the court below is persuasive, and is allowed to stand as the correct result.”

The evidence, as above stated, is so unsatisfactory and So conflicting that wé cannot say as a matter of law, under the settled practice in this court, that the decree of the court is clearly against the preponderance of the evidence. For this reason the decree must be affirmed. It is so ordered.