text:
    Cleveland v. Biggers.
    Opinion delivered March 17, 1924.
    1. Vendor and purchaser — rescission—parties.—In a suit for rescission of a conveyance of land, the grantor is a necessary party.
    2. Fraud — sufficiency of complaint. — A _ complaint in a suit against the agents of a vendor which alleges that the defendants made false representations which were material and intended to deceive, and which did deceive, plaintiffs to their damage, states a cause of action for damages.
    3. Principal and agent — liability of agent for fraud. — One guilty of making fraudulent representations is not relieved from liability therefor by the fact that in making them he was acting as agent of another.
    4. Fraud — remedies.—Purchasers of land, defrauded by the vendor’s agents, may sue to rescind the sale and, upon reconveyance or offer to reconvey, recover the amount paid, or may sue for damages, or may recoup the damages where sued for the purchase price.
    5. Election of remedies — right to make. — A vendee of land, deceived by misrepresentations, and having a right to either one of three remedies, has a right to elect between such remedies, and, having made his election, is bound thereby.
    6. Dismissal and nonsuit — defect of parties — demurrer.—Defect of parties defendant in a suit to rescind a sale of land was properly raised by demurrer, and, where no offer was made to bring in necessary parties, the complaint was properly dismissed.
    7. Equity — giving complete relief. — Where a purchaser deceived by fraudulent representations, asks that a fraudulent conveyance be set aside, which could be obtained only in equity, that court has jurisdiction to afford complete relief by way of granting damages.
    Appeal from Jackson Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Harper E. Harb and Oliver & Oliver, for appellants.
    1. Every element of actionable fraud was alleged in the complaint, and it therefore stated a cause of action. 26 C. J. 1062 (6); 159 Ark. 479.
    2. The jurisdiction in matters -of rescission and cancellation of contracts is clearly in chancery. 96 Ark. 251; 113 Ark. 305; 128 Ark. 420.
    3. Even though the S. C. Quimby Land Company, from whom the lands were purchased, was still existent and not insolvent, appellees cannot be heard to say that appellants must make it a party defendant in order to recover for a fraud perpetrated by appellees. 27 C. J. 10.

      Gustave Jones, for appellees.
    The complaint is silent with respect to the material and necessary averments recognized by all the courts as the principles upon which a rescission can be based, viz: a representation, and its falsity; that the vendee relied upon such representation and had a right to rely thereon, and was deceived thereby, and that it was material. In their brief appellants correctly set out the elements of actionable fraud, but they fall far short of embracing- all these necessary elements in their complaint. 119 Ark. 95; 11 Ark. 66; 47 Ark. 164. The joint maker of-a contract, or the grantor, is a necessary party in an action to rescind. 89 Ark. 147; 31 Ark. 175; 49 Ark. 100. The chancery court is without jurisdiction. Appellants are seeking to recover damages solely.

      Harper E. Harb and Oliver & Oliver, for appellants, in reply.
    On the question of defect of parties, the allegation in the complaint that the “S. C. Quimby Land Company has dissolved; that it was, at the time of the execution of the contract and at all times thereafter, wholly insolvent,” set out a sufficient excuse for the nonjoinder. 131 Ark. 175.
   Smith, J.

Appellants, the plaintiffs below, filed a complaint in the chancery court of Jackson County which contained the following allegations: In 1918, while plaintiffs were residents -of Clay County, Aransas, they were induced by the defendants, William and Frank Biggers, who were sales agents for the S. C. Quirnby Land Company, to look over some lands in southern Texas, which ■ were arid, but seemingly fertile if they were irrigated. Defendants represented that an irrigagation system was under construction and was so far advanced towards completion that they might rely on having water by April 20, 1918, which was early enough to make a crop that year. Defendants knew this representation was not true when it was made. Plaintiffs inquired if the lands were subject to overflow, and were assured by defendants that, they were not subject to overflow, but were twenty feet above overflow, whereas the lands were subject to overflow, and had in fact over'flowed many times prior to this representation, and several -times since.

Plaintiffs relied upon these representations, and, in reliance thereon, entered into a contract for the purchase of the lands shown them by defendants. A substantial payment was made in cash, and notes were executed for the balance of the purchase money.

Plaintiffs moved to Texas with their families, and spent large sums of money building houses, clearing the lands, and. planting crops. Water was not furnished, and the -crops never sprouted. Later the Rio Grande River rose and -completely flooded the land. Plaintiffs thereafter left the land, and demanded the return of their notes and the money paid. This demand was refused.

Defendants received as their commission on the sale all of the notes, and assigned one of them to a bank, which plaintiffs were required to pay, for the reason that the bank was a tona fide purchaser.

Plaintiffs immediately brought suit for rescission, but the suit was dismissed without prejudice because of inability to obtain urooer service of -summons. Other suits were brought for the same purpose, and were dismissed for the same reason.

In March, 1922, plaintiffs filed this suit and obtained service against defendants, and they prayed rescission of the contract, and made a tender of reconveyance of the lands to any person defendants might, name.

• The wives of William and Frank Biggers were made parties defendants, and it was alleged that their respective husbands had fraudulently conveyed their lands to their wives, and that, except for the lands involved, William and Frank Biggers - are insolvent. It was alleged that these deeds were executed without consideration and for the purpose of defrauding the plaintiffs by preventing them from recovering damages for the fraud perpetrated on them.

It was further alleged that the title to the lands was in one E. A. Mueller, a resident of St. Louis, Missouri, who executed the deed pursuant to the contract of sale, at the request of the Quimby Land Company, a corporation organized under the laws of the State of Missouri, and that this corporation was insolvent at the time of the sale of the lands, and had since dissolved.

Defendants, William and Frank Biggers, had charge of the Bale of the lands, and personally conducted the excursions of prospective buyers, and so conducted the trips of plaintiffs which led to their purchase, and on this trip plaintiffs “were so engaged and directed that they could have no opportunity of talking to disinterested residents in the neighborhood of said lands, if there were such,” and that, in response to plaintiff’s inquiries about the lands being subject to overflow, the “defendants, William and Frank Biggers, knowingly, and with the intent to deceive and cheat and defraud plaintiffs, represented that said lands were not subject to overflow at all, but that they were twenty feet above high water.” A similar allegation was made in regard to the alleged false representation concerning the irrigation of the land.

After alleging the cash payment, and the improvements made, and number and amount of purchase money notes outstanding and held by defendants, the complaint alleges “that all the representations hereinbefore set out and made by defendants to plaintiffs, to the effect that said lands were not subject to overflow, and that water would be furnished for irrigating purposes by the 20th day of April, 1918, were material, and were false and fraudulent, and were known to defendants to be false at the time said representations were made; * * * and that said representations were made for the purpose of cheating and defrauding these plaintiffs.”

There was an allegation that, unless prevented by the order of the court, the notes would be transferred to innocent purchasers, which plaintiffs would have to pay, and there was a prayer that the defendants be restrained from selling or disposing of the notes, and that the same be brought into court and canceled. There was a prayer also that the sale of the lands be rescinded, and that defendants be ordered to designate a grantee to whom the lands should be reconveyed, and a tender of such conveyance was made, and that plaintiffs have judgment against the defendants for the purchase money they had paid and the other damages they had sustained, including the cost of their improvements and certain expenses which they had incurred in connection with the sale of the lands.

There were certain allegations about the terms of the contract of purchase, which need not be recited.

. A demurrer to this complaint was filed on the grounds, (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that the court was without jurisdiction; and (3) that there was a defect of parties defendant. This demurrer was sustained, and, as appellants stood on the complaint, the cause was dismissed, and this appeal is from that decree.

It is, of course, obvious that a cause of action for rescission was not stated, for the reason that the grantor in the deed to plaintiffs was not made a party to the suit, the only parties defendant being William and Frank-Biggers and their wives. Gibson v. Johnson, 148 Ark. 569.

In Black on Rescission and Cancellation, % 657, it is said: “In order to obtain a decree in .equity for the rescission of a contract or the cancellation of a written instrument, it is necessary to bring before the court, as parties to the action, all those having interests in the subject-matter, or whose rights or claims must be adjudicated and concluded in order to do complete equity in the premises.” See also § 29 of the article on Cancellation of Instruments in 4 E. C. L., page 517, and § 126 of the article on Cancellation of Instruments in 9 C. J., page 1225.

The complaint does allege that William and Frank Biggers were beneficially interested in the sale of the lands and were the instrumentalities through which the sale was effected, but it does not allege they were grantors in the deed or parties to that conveyance.

We think, however, that a cause of action for damages was stated. By fair intendment the complaint does allege a representation and its falsity, that the vendees relied upon said representation, and had a right so to rely, and were deceived thereby, that the false representations were material to the contract, and resulted in plaintiffs’ damage, and were made to accomplish that purpose.

In Cruce v. Mitchell, 122 Ark. 141, we quoted from the case of Dickerson v. Hamby, 96 Ark. 163, as follows:

“ ‘In' determining whether a pleading, complaint or answer makes sufficient allegations to constitute a cause of action or to state a defense, every fair and reasonable intendment must be indulged in to support such pleading. If the averments are incomplete, ambiguous or defective, the proper mode to obtain correction is by motion to make the allegations more definite and certain.’ ”

When considered upon demurrer, we think the allegations of the complaint were sufficient to state a cause of action for damages. If these allegations were sustained, the plaintiffs would be entitled to recover damages.

The fact that the defendants were acting as agents affords them no excuse for deceiving and damaging plaintiffs. “Where loss or injury is caused to a third person by the 'wrongful act or omission of an agent while acting on behalf of his principal, the agent is personally liable therefor, whether he is acting with the authority of the principal or not, to the same extent as if he were acting on his own behalf.” Tiffany on Agency, § 96. See also Strayhorn v. Giles, 22 Ark. 517; Stiewel v. Borman, 63 Ark. 30; § 30, chapter on Principal and Agent, in 21 R. C. L., page 850; Mechem on Agency, 2d ed., § 1458, page 1080; Fidelity Funding Co. v. Vaughan, 18 Okla. 13, 90 Pac. 34, 10 L. R. A. (N. S.) 1123.

If the allegations of the complaint are true, plaintiffs had the choice of three remedies: (1) They had the right, in a suit against proper parties, to annul the contract, and, by reconveying, or offering to reconvey, the property, within a reasonable time, to recover what they had paid under the contract; (2) they might have retained the property and sued for the damages sustained by reason of the false and fraudulent representations; (3) they could have recouped the damages when sued for the purchase money. Meier v. Hart, 143 Ark. 539, 542.

The law gives a party thus wronged the choice of these remedies, and he may pursue the one he thinks most advantageous to himself. Fort Smith Lbr. Co. v. Baker, 123 Ark. 275. But he cannot pursue them all. He must elect between them.

The defendants say this suit is, in effect, a suit for the damages alleged to have been sustained by the false representations; but plaintiffs disclaim the intention of maintaining a suit of that character. In disclaiming such purpose it is said in the reply brief: “If that were the action (one for damages) appellants would have alleged the purchase, the value of the land' purchased, and asked damages for the difference. But this is not the cause of action. Appellants ask simply and plainly to rescind— to reconvey the lands purchased to appellees or to any one to whom appellees desire the conveyance to be made —and to recover the entire amount paid on the purchase, and to recover their notes now held by appellees.”

But for this insistence we would remand the cause for trial as a suit for damages. However, the right of election of remedies rests with the plaintiffs, and not with us, and we cannot make- the election for them. Belding v. Whittington, 154 Ark. 561.

The question of defect of parties to maintain an action for rescission was properly raised by demurrer, and, as there was no offer to bring in the necessary parties, the complaint was properly dismissed. C. & M. Digest, § 1189.

In Eagle v. Beard, 33 Ark. 497, it was said: “If the bill had equities, it should not have been dismissed on this account (defect of parties) before refusal of - the complainants to bring in other parties, after a proper order of the court to that end, and such an order should have been made by the court of its own motion, if the bill would have presented equitable grounds of relief against all defendants when properly brought in. The proper practice, in such cases, where defect of parties is developed by the bill itself and a special demurrer is interposed on that ground, is to sustain the demurrer and dismiss the bill, unless complainants ask leave to amend by bringing in other parties. But when the demurrer is general, the court should look alone to the equities of the bill, and, if it finds that the bill should stand with proper parties, it should overrule the demurrer, and order such parties to be brought in as are indispensable to a full settlement of the matters in interest between the parties already before the court.”

The action of the court in sustaining* the demurrer and dismissing the complaint is defended upon the ground that, as a suit for damages, relief could be granted only in a suit at law.

The case of Horstmann v. LaFargue, 140 Ark. 558, is against that view. In that case a suit for personal injuries was brought in equity, and in the same suit it was asked that certain alleged fraudulent conveyances be uncovered. The jurisdiction of the court was challenged upon the ground that a suit for unliquidated damages could be maintained only at law; but we beld that, inasmuch as it was necessary for the plaintiff to go into equity to uncover the fraudulent conveyances, all the matters in issue should be adjudged and complete relief afforded. This subject was there thoroughly considered, and need not be again reviewed.

So here the plaintiffs asked the relief of uncovering certain alleged fraudulent conveyances, which could be obtained only in a court of equity, and the court would therefore have had jurisdiction to afford complete relief, by way of granting damages, if plaintiffs had elected to pursue that remedy.

It follows from what we have said that the demurrer was properly sustained, and the decree is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Smith v. State.
    Opinion delivered March 24, 1924.
    1. Lewdness — illegal cohabitation. — In a prosecution for illegal cohabitation under Crawford & Moses’ Dig., § 2600, it is not necessary that the parties should claim to be husband and wife, but it is sufficient if they live together in the same house in like manner as respects bed and board as marks the intercourse between husband and wife.
    2. Lewdness — illegal cohabitation — evidence.—In a prosecution for illegal cohabitation, evidence held to sustain a conviction.
    3. Criminal law — instruction as to circumstantial evidence.— In a prosecution for illegal cohabitation an instruction that, if circumstantial evidence was of sufficient quality, and the facts shown were consistent with each other, and all show that the crime was committed to the exclusion of every other' reasonable hypothesis, then circumstantial evidence is sufficient; but, if the facts should show that some other condition might exist than that.of guilt, then the circumstances were not sufficient, was not argumentative,_^and did not tend to singly out and stress the circumstances in the case.
    Appeal from Greene' Circuit Court, Second Division; • W. W. Bandy, .Judge;
    affirmed.

      Jeff Bratton, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose, J. S. Abercrombie, Assistants, for appellee.
   Humphreys, J.

Appellants were indicted, tried and convicted in the second division of the circuit court of Greene County for illegal cohabitation, and adjudged to pay .a fine of $75 each, a,s punishment therefor. An appeal has been duly prosecuted to this court from the judgment of conviction.

Appellants were indicted and convicted under § 2600 of Crawford & Moses’ Digest, which is as follows: “If any man and woman sháll cohabit together as husband and wife, without being married, each of them shall be deemed guilty of a misdemeanor, and shall, upon the first conviction, be fined in a sum not less than twenty dollars nor more-than one hundred dollars.”

In construing the statute this court said, in the case of SulUvan v. State, 32 Ark. 187: “We do not think it necessary that the parties should claim to be husband and wife; if they live together in the same house, in like manner as respects bed and board as marks the intercourse between husband and wife, they, in the sense and meaning of the statute, cohabit as husband and wife. The law seeks not alone to prevent the false assumption of the marriage relation, and to prohibit the public scandal and disgrace of such immoral connections, but also to preserve and promote the institution of marriage, upon which the best interests, and indeed the existence, of society depend.” This construction of the statute has been uniformly adhered to by the court in later opinions. Lyerly v. State, 36 Ark. 39; Taylor v. State, 36 Ark. 84; Bush v. State, 37 Ark. 215; Turney v. State, 60 Ark. 261; Leonard v. State, 106 Ark. 452.

Appellant contends for a reversal of the judgment upon two assignments of error, the first being that the verdict is not supported by any substantial evidence, and the second that the court erred in giving instruction No. 5.

(1) Bob Smith and his wife had separated, and he had not lived with his family, consisting of his wife and seven children, for a number of years. He owned a home in Paragonld in which were two rooms and a small attic. For a period of two years before the indictment was returned he lived in this home with Yada Fletcher. They testified that she kept house for him, and was paid $5 per week for her services; that she slept in the front room, he in the attic, and that they did not illegally cohabit as husband and wife. The State introduced a number of witnesses who testified that appellants came and went together, both day and night; that he frequently took her walking and driving; that they came in together as late as eleven o ’clock at night; that he maintained the home, and that she cooked and kept the house. Mrs. Armstrong, who lived near them, testified that they went walking and riding together as often as an average married couple. Mrs. Kate Morrison, who washed for them, testified that their clothes were put in the wash together, and that he paid the bills. I. C. Norman testified that Yada Fletcher 'owed him $1.50 for furniture; that Bob Smith came and tried to settle it for fifty cents, -and, when. the offer was refused, he told witness he would stand a' lawsuit before he -would pay more. C. E. Stepp, the sheriff, and Bob Hayes testified that the reputation of appellants for morality was bad. The sheriff also testified that, When he went to arrest Yada Fletcher, he was unable to gain entrance to the house; that the next time he went he had to threaten to break in the door, and started to get in the window before she would let him in. We -think the manner in which these parties associated, together with the other circumstances detailed, warranted the jury in finding that the offense of illegal cohabitation, as defined by the statute and construed by the court, was committed by them. The evidence therefore is sufficient to support the verdict.

(2) Over the objection and exception of appellants the court instructed the jury as follows: “Now there are two classes -of evidence, one is direct and positive testimony — that is, another person sees another person shoot some person — he himself witnesses the act of the shooting — 'that is what we call direct and positive testimony, an eye-witness. There is then what we call circumstantial evidence, and circumstantial evidence, if it is of sufficient quality and the facts shown are consistent with each other, and all the facts or circumstances show that the crime has been committed, to the exclusion of every other reasonable hypothesis, then circumstantial evidence is sufficient for conviction, but the circumstances must be such as to show the guilt of the defendant, exclusive of any other reasonable state of affairs; that is, if the facts should show that reasonably some other condition might exist except that of guilt, then the circumstances wouldn’t be sufficient to sustain a conviction.”

The objection made to the instruction was that it is argumentative and tends to single out and stress the circumstances in the ease. The instruction is not subject to the assaults made upon it. It is not argumentative. On the contrary, it simply defined and distinguished positive from circumstantial evidence. Neither did it single out .any fact or circumstance and emphasize it to the exclusion of other facts and circumstances. On the contrary, it cautioned the jury not to convict appellants upon circumstantial evidence alone unless it was of sufficient quality and consistency as to exclude every other reasonable hypothesis of innocence.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    McClintock v. Bovay.
    Opinion delivered March 31, 1924.
    1. Eminent domain — delegation op power. — A State may delegate its power of eminent domain to public carriers and other corporations conducting a business in which the public has an interest.
    2. Eminent domain — highway.—An order condemning land under ■Crawford & Moses’ Dig., § 5249, to open up a highway to connect an established road with a proposed private toll-bridge, is not for the benefit of the bridge company but for the benefit of the public, and the county is responsible for the compensation found to be due owners for the right-of-way for the public road.

      3. Eminent domain — condemnation for highway — county liability. — Though there was -an agreement between the county and the promoters of a toll-bridge project that the latter were to pay the cost and damages involved in condemning land for a connection between the toll-bridge and an established road, the county was nevertheless liable to the owner of the land sought to be condemned.
    4. Eminent domain — highway—width of right-of-way. — It was not an abuse of discretion to condemn a strip 200 feet wide for a proposed highway where the roadway was to be 26 feet wide and a very high dump was to be constructed, necessitating the use of much earth.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Gregory <& Holtsendorf and Emmett Vaughan, for appellant.
    This is an attempt to take private property for private use, under the guise of taking it for public use, contrary to our Constitution. Such attempts have not met with this court’s approval heretofore. 15 Ark. 33; 57 Ark. 359; 97 Ark. 495; 99 Ark. 61; 64 Ark. 357. The power of the county court, under C. & M. Digest, § 5249, to open new roads, make necessary changes in old roads, etc., in order to conserve the convenience of public travel, is not denied; but we do deny the right of the county court to take a strip of land 200 feet wide for any other purpose. The above statute contemplates payment of damages by the county; yet the order of the court fixes the expense upon the bridge company, without settling the amount to be paid. The county court has no power to settle the amount the bridge company would be required to pay.
    The statutes provide a means whereby the bridge company can secure the land, and it has no right to dodge the statute in order to avoid the expense. C. & M. Digest, §§ 10261, 10263. Even if the county court had the power to open this road and declare it a highway, it would not, under the facts and circumstances of this case, have the power to appropriate for the use of the public service corporation material with which to 'build the road. Not even the Legislature, much less a county court, has the power to say how far the power of eminent domain may extend. That is a judicial question. 9 S. E. 273; 21 W. Ya. 548; 1 N. J. 694; 43 S. E. 194; 111 Mass. 454. If appellant’s property can be taken at all for the purposes disclosed in the record, only so much thereof as would be necessary for the convenience of public travel can lawfully be taken. 204 Mass. 483; 91 N. E. 405-578. In the enactment of the statute, § 5249, C. & M. Digest, the Legislature did not contemplate the arising of such a condition as this. Moreover, the 'Constitution forbids the enactment of any law whereby private property may be taken or damaged, for public use, without just compensation. Art. 2, § 22, Const. 1874. 106 S. E. (Ya.) 403; 80 Ya. 616; 43 S. E. 194; 31 Am. Dec. 313; 101 S. E. 351; 91 N. E. 405; 102 N. E. 619.

      Cooper Thweatt and Chas. B. Tlvweatt, for appellees.
    The order opening the road was made under authority of C. & M. Digest, § 5249. The court has already fully considered and upheld this statute. 134 Ark. 121. The only judicial question in this case is whether or not the land was taken for public use. If taken for that purpose, it will be upheld as a matter of right. 97 Ark. 89. The validity of C. & M. Digest, § 10263, is doubtful, since it grants a new right, and the law governing the remedy is not reenacted. 250 S. W. 889. Also it authorizes the building of bridges, and fixes the rate of toll, thereby excluding the jurisdiction of the county court. 152 Ark. 391; 159' Ark. 652. The taking of property for a highway is universally held a taking for public use. 43 Sup. Ct. 692. The test as to whether or not a road is for the public use is whether or not the public generally ■ has the right to use it. 78 Ark. 20; 15 Ark. 49; 149 Ark. 489; 142 Ark. 420. See also 57 Ark. 365; 97 Ark. 89; 104 Ark. 352; 132 Ark. 430; 43 S. C. 689. The loss of ferry rights is not an injury for which compensation could be had, where the loss is not due to any wrong committed by the county or by the bridge company. 52 Ark, 64. Appellant’s ferry right consists merely in the right to an annual license to operate a ferry so long as the public convenience requires it, and may be abolished to conform to the public convenience. 95 Ark. 342; 130 Ark. 291. The right of eminent domain includes the taking of land necessary for procuring the dirt with which to build the embankment of a public road. 140 Ark. 246; 20 C. J. 589; 29 C. J. 544.
   McCulloch, C. J.

This is a proceeding originating in the county court of Prairie County on the petition of appellees, citizens of the county, to open up a public road, or, rather, a lateral to an established public road, so as to connect with a bridge to be constructed over White River, near Devalls Bluff.

Pursuant to statute (Crawford & Moses’ Digest, § 10255 et seq.) the county court granted to Harry E¡ Bovay, one of the appellees, a franchise covering a series of years, to construct and maintain a toll-bridge across Wbliite River, near Devalls Bluff. The location of the bridge was selected, under requirements of the War Department of the United States, about five hundred yards south, or down-stream, from the present bridge of the Chicago, Rock Island & Pacific Railway Company.

Appellant J. M. McClintock owns land on both sides of White River from the Rock Island bridge down to and including the site of the proposed bridge, and he operates a licensed ferry about, or nearly, midway between the Rock Island bridge and the site of the proposed bridge.. There is an improved public highway running east and west, which connects with the ferry on each side of the river, and the effort in the present proceeding is to lay out a public road on each side of the river, running from the end of the bridge to the improved highway.

Bovay assigned his -franchise to the White River Bridge Company, a corporation, which proposes to construct and maintain the bridge' under the franchise. Bovay appears in this proceeding, not as a representative of the holder of the franchise, but as a citizen.

The -petition was filed by numerous citizens, and described the proposed route of the new roads, or laterals,' running from the established highway to the bridge, accurately describing the route, and asking that the county court make an order laying out -the route as a public highway. The petition was filed pursuant to act No. 422 -of the General Assembly of 1911, p. 364 (Crawford & Moses’ Digest, § 5249), and the court made an order on October 25, 1922, granting the prayer of the petition and laying out the road two.hundred feet wide. Later during the term appellant filed his petition, alleging that the order opening the road had been made without notice to him, and asking that the order be set aside, and that he be permitted to intervene for the purpose of protesting against the granting of the petition. The court set aside the order, and, upon a hearing of appellant’s petition, reentered the order, with changes with respect to the giving of a bond, which are unimportant in the present status of the case. Appellant prosecuted an appeal to the circuit court, where the case was heard anew on oral testimony, and judgment was rendered by the circuit court on March 20, 1923, opening the road in accordance with the prayer of the petition and in accordance with the previous order of the county court. The order of the circuit court, after reciting.the appearances and the issues involved and describing in detail the route of the road,- reads as follows:

“It is thereupon ordered, considered and adjudged by the court that a public road, having for its center line the line above described, said road to be 200 feet in width, being a strip 100 feet wide on each side of said center line, be and the same is hereby opened as and declared to be a public road and highway of Prairie County, to be a first-class road; and that said Harry E. Bovay, and his successors and assigns under the franchise above mentioned, are hereby authorized and empowered to enter upon and improve said public road at their own expense, in such manner as will make the same suitable for passing to and from said bridge and for connecting said bridge with the improved highway of Road Improvement District No. 1; and under no condition shall Prairie County be liable for the payment of any part of the opening, improving or surfacing of such road as provided for. ’ ’

Appellant filed a motion for a new trial, and also filed a bill of exceptions bringing the oral proceedings into the record, and has prosecuted an appeal to this court.

Appellant appeared in the proceedings only as a protestant against the opening of the proposed road, and not as a property owner claiming damages. He contends, as a reason why the order is erroneous, that his property is being wrongfully taken by a private corporation, but he has filed no claim for damages, and the question of damages for the taking of the right-of-way is not involved.

The statutes of .this State provide that a corporation organized under the laws of the State to construct a toll-bridge over a navigable stream shall have the right to construct suitable approaches and ways, and to condemn land under the State’s power of eminent domain, the same power as is conferred for railroad purposes (Crawford &¡ Moses’ Digest, §§ 10261, 10263), and the contention of appellant is that this proceeding is nothing more nor less than an attempt on the part of the holder of the bridge franchise to condemn appellant’s property for the use and benefit of the corporation which holds the franchise. It is unnecessary for us to determine what the effect would be if such were the character of the proceeding.

It is a rule of general application that a State may delegate its power of eminent domain to public carriers and other corporations conducting a business in which the public has an interest, and that rule has been adopted by this court. Neimeyer & Darragh v. Little Rock Junction Ry., 43 Ark. 120; Mountain Park Terminal Ry. Co. v. Field, 76 Ark, 239. In those cases it was held that the statute makes no provision for raising an issue at laiy concerning the necessity and propriety of the condemnation, but that a court of equity could entertain jurisdiction on an allegation of fraud in the attempt to condemn private property for private use under the guise of public use. This case was tried at law, on appeal from the county court, and there has been no attempt to carry the case into a court of equity on allegations that would give that court jurisdiction. It is unnecessary to pursue this part of the discussion, for we are clearly of the opinion that the condemnation invoked hy petitioners is under the statute referred to above ('Crawford & Moses’ Digest, § 5249), which authorizes the county court to open new roads or to make changes in old roads without notice to the property owners, and gives a certain time within which claims for damages may be presented. The validity of this statute has been upheld in the case of Sloan v. Lawrence County, 134 Ark. 121. In disposing of that case we said:

“The statute under consideration meets every constitutional requirement. It authorizes the county court to determine without notice the necessity for taking lands for public use, but contains ample provisions concerning notice and hearing upon the question of compensation, or damage, which mean the same thing in that connection. There is no provision for formal notice, but the order itself and the taking of the property thereunder are, in the very nature of things, acts of such publicity as to constitute notice, and the property owner is given twelve months within which to apply to the county court for an allowance of compensation, and the hearing is then given on that question. Of course, all that has been said in this opinion has reference solely to condemnation for strictly public uses in its broadest sense, and has no reference to condemnation for the benefit of private corporations exercising a public or g"wasi-public function.”

The condemnation was not, in this instance, made for the benefit of the bridge company, but for the benefit of the public, and the county is responsible for the compensation found to be due owners for the right-of-way for the public road. It is true that the form of the order of the circuit court was that the petitioners — Bovay and others' — should proceed to open the road, and that “under no conditions shall Prairie County be liable for the payment of any part of the opening, improving* or surfacing of such road as provided for.” This puts the expenses of improving the public road on the holder of the franchise, and the evidence shows that there had been an agreement between the holder and the county court that the former should pay the expense, but this judgment does not relieve the county of the cost of paying compensation to the landowner whose property is taken under condemnation. The fact that the expense of opening and improving the road is to be paid by the bridge company, even if treated as a mere gratuity, does not affect the validity of the order of condemnation, for the rights of the public are not prejudiced thereby. We are unable to see where appellant’s rights have been invaded by this order of condemnation. The lands are sought to be taken, not for private but for public use, and are taken under a valid statute which affords a means of compensation. What compensation appellant is entitled to, and whether or not he has waived his rights to compensation by delay, is not involved in the present inquiry, as no such question has been raised in this proceeding.

Something is said in appellant's brief about the width of the proposed road being excessive, but the answer to that contention, or rather suggestion, is that it is a matter of discretion for the county court to determine the necessary width of the road. It is shown that the roadway is to be twenty-six feet in width and that a very high dump is to be constructed, which makes it necessary to have plenty of earth for raising the dump. The evidence is not sufficient to show that the court abused its discretion in determining that 200- feet right-of-way was necessary in the construction of the road.

We find no error in the proceedings, and the judgment is therefore affirmed.


author: Wood, J.

text:
    Hornsby v. State.
    Opinion, delivered March 31, 1924.
    1. Homicide — conviction of murder — evidence.—Evidence, giving it is strongest probative force in favor of the State, held to support a conviction of murder in the first degree.
    2. Criminal law — demonstrative evidence. — In a prosecution for murdes, testimony as to blood-stains on bedclothes and on the clothing deceased wore at the time he was killed held admissible as part of res gestae and to throw light upon the rencounter.
    3. Homicide — admissibility of love letter to deceased’s wife. — In a prosecution for murder, admission of love letters written by accused to deceased’s wife while both were in jail was proper as tending to prove a motive for killing deceased.
    4. Homicide — instructions as to self-defense. — In a prosecution for murder, an instruction on self-defense which told the jury that, if defendant brought about the difficulty, he could not plead self-defense unless he honestly and in good faith withdrew from the difficulty, held not objectionable as justifying the inference that defendant could not plead self-defense if his conduct in making love to deceased’s wife was the cause of deceased making an assault on defendant, where the court, in another instruction, told the jury that such conduct on defendant’s part would not justify an assault by deceased.
    5. Criminal law — instruction—specific objection. — Where counsel for the accused in a prosecution for murder desired an affirmative definition of what 'was meant by the phrase “brought about this difficulty” in the instruction on self-defense, he should have requested it.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    affirmed.

      Bogle & Sharp, for appellant.
    1. The evidence does not warrant a conviction of murder in the first degree. Under the state of facts presented in the record, the State has failed to prove that premeditation and deliberation essential to a conviction of murder in the first degree. 119 Ark. 85; 36 Ark. 127; 51 Ark. 189; 60 Ark. 564; 68 Ark. 572; 82 Ark. 97; 92 Ark. 120 ; 100 Ark. 330.
    2. It was error to permit evidence to be introduced that, a day or two after the killing, blood was found on one of the beds and on a quilt found in one corner of the room, and to permit the blood-stained clothing of the deceased to be exhibited to the jury. There was no connection between these things and the facts which the State relied on' for a conviction, and this evidence was calculated only to excite the minds and inflame the passions of the jury. 39 L. R. A. 719. It was manifest error to permit the introduction in evidence of letters written after the defendant had been placed in jail. They were written too long after the killing to be admitted as a part of the res gestae. Moreover, they neither in fact nor by innuendo refer to, or relate to, the crime with which the defendant was charged. 3 Wigmore, Evidence, § 2113; 90 N. E. 48; 106 N. E. 78; L. R. A., 1915D, 236; Ann. Cases, 1915D, 162; 68 So. 934; 141 S. W. 216; 16 C. J. 543.
    3. Instruction E given by the court was • erroneous in that it ignored the principle that, regardless of who might have brought 'on the difficulty, the defendant was not required to retreat, but could stand his ground, and, if need be, kill his assailant in order to save his own life or prevent great bodily harm. 73 Ark. 399; 67 Ark. 603. Instructions F and G-, which discussed the facts in the case as they appeared to the court, were erroneous because argumentative and contradictory of other instructions, and objectionable because too long to be clearly understood. 43 Ark. 289; 45 Ark. 165; 49 Ark. 165; 55 Ark. 244; 125 Ark. 260; 130 Ark. 234; 85 Ark. 48; 89 Ark. '213; 39 Ark. 360; 54 Ark. 588.

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
    1. The evidence, the facts and circumstances in proof, were sufficient to justify the jury in returning a verdict of murder in the first degree; to justify them in inferring the killing, and that defendant had delib-' erately planned to kill deceased, or to engage him in a quarrel in order to have an excuse for killing him. It shows also that deceased was unarmed, and attempting . to escape from the house when he was shot down. There is present all the essential elements of murder in the first degree. 92 Ark. 120; 51 Ark. 189; 68 Ark. 572, 576; 119 Ark. 85, 92; 133 Ark. 321, 324; 101 Ark. 443, 448.
    2. No objection was made to the testimony to the effect that, the next morning after the killing, blood, ■which appeared to be damp and fresh, wtets found on the bed-clothing, at the time it was given, and its exclusion on objection being made thereafter, was discretionary. However, it was competent for the purpose of throwing light on the issue. 156 Ark. 464; 78 Ark. 285; 103 Ark. 166. Objection to the introduction of the bloody overalls worn by the deceased was not incorporated in the motion for new trial, and cannot be urged here, but must be considered as waived. 91 Ark. 441, 121 S. W. 732; 150 Ark. 387. The letters written by appellant to the wife of the deceased were competent as tending to show a motive for the killing, and to shed light upon the relationship of the parties prior to the killing. 13 E. C. L. 747, § 51; 71 Ark. 112, 117; 149 Ark. 642, 648.
    3. Instruction E conforms to '0. & M. Digest, § 2375, and correctly declares the law of self-defense. 95 Ark. 428; 109 Ark. 378, 382; 116 Ark. 17, syl. 4; 120 Ark. 350. The instructions requested by the appellant presenting his theory of the case, from the standpoint of self-defense, were not improperly refused, because the court had correctly covered the law of self-defense in the above instruction and in its instructions D and G. 130 Ark. 204, 209. Instructions P and G were not so long as to affect their clearness or correctness. Neither were they 'argumentative, or, at any rate, not so much so as to result in prejudice to the appellant. 14 E. C. L. 775, § 42. Appellant should have made specific objection if he considered instruction F to be misleading. 110 Ark. 403, syl. 6.
   Wood, J.

The appellant rented a small farm in Monroe. County, on which he and his wife and children resided until the summer of 1923, when his wife died, and appellant and his children went to live with his mother, who resided near by. Walter Fells, who was twenty years old, and his wife, who was sixteen, lived on a farm about one and three-quarter miles from the appellant. After appellant’s wife died he entered into a contract with Fells, by which Fells and his wife were to move into the house, on the place where appellant and his wife lived prior to her death, to assist appellant.in gathering the crop. Soon after Fells and his wife moved on the place, appellant .and his children moved back into the house with them. Mrs. Fells was to do the cooking and take care of appellant’s children. Shortly after, appellant became acquainted with Mrs. Fells, and before she and her husband had moved into appellant’s house, he had made love to her. He told her that he loved her from the first time he saw her.

Without setting out the testimony in detail, suffice it to say it tended to show that there was improper intimacy.between appellant and Mrs. Fells even before the Fells moved into appellant’s house, and that it continued -up to the time the appellant killed Fells. Appellant had told her that, if she would be his, he would buy her everything she wanted. He had ordered her some clothes about a week before he killed Fells. They had talked about leaving together, on the Sunday before the killing occurred. Fells and his wife and the appellant had all been living in the house together about a week, and appellant was continuing his love-making to Mrs. Fells. Mrs. Fells and her husband had had some trouble; he told her that he would cut up the clothes appellant bought for her, and appellant said that he wouldn’t. This was about a week before the killing. Appellant thereupon loaded his guns. One was a nineteen-inch-barrel gun and the other was a twelve-gauge. On the night of the killing, after supper, Fells went to bed, and appellant and Mrs. Fells were sitting across from each other at a small table, talking, Appellant wrote something on a mail order blank, and handed it across to Mrs. Fells. Fells observed it, and got up and put on his clothes and walked over to the table where they were sitting. Mrs. Fells turned the paper over and began, drawing on it. She then tore it, and put a part of it in her mouth. Fells thereupon slapped her, and told her to go to bed. She then started towards her bed and appellant towards his, and Fells walked out on the front porch. When he came back into the room, Mrs. Fells was standing- by her bed and appellant was sitting on a trunk at the-foot of his bed, unlacing his shoes. As Fells came into the room he was saying something, but neither appellant nor Mrs. Fells understood what it was. Appellant then inquired of Fells whether he thought that appellant was the cause of the trouble between him and his wife, and Fells replied', “By Gr — , you wrote that,” and appellant said, “Well, you Gr— d-son of a b-, grab your gun.” Appellant reached back and got his gun, and Fells ran towards the middle door and Mrs. Fells ran toward the front door, and as Fells opened the door it threw him towards the appellant, and' appellant shot him in the stomach. Mrs. Fells testified that she did not see anything in her husband’s hand when he re-entered the room. She described the room and the situation of the'parties at the time of the shouting. Appellant laid Fells down. She ran up and asked him to let her have the gun, and told him that he ought not to have done that. He replied, “Did you want'me to get killed?”

Wes Bryant, a near neighbor, who heard Mrs. Fells scream, ran over and arrived about the time Fells died. When he arrived, appellant was holding F'ells’ head with his right hand and had his left hand over Fells’ stomach. Appellant told witness to go for a doctor, but witness replied' that it was no use. On witness’ first trip he did not see anything of a knife. He went home, and returned soon thereafter, and when he got back the second time he saw a knife sticking in the floor, where the appellant called his attention to it. Appellant then exhibited to witness a place on his arm which looked like some one had grabbed him, and had the prints of finger nails as if some one had scratched him, and appellant told witness that Fells had struck at him with a knife, and that he had to shoot him. He said to witness that, if he could not do him any good not to do him any harm, and asked Mrs. Fells if she could tell it like it was, and she replied that, when Fells started toward the door she thought he was trying to run, and appellant replied, “No, he aimed to shut the door and whirl on me.”

It was shown that Fells was shot in the center of the stomach with shot that looked like buckshot. The shot ranged down, and was at close range. The State, without objection of appellant being offered at the time, introduced evidence to the effect that, on the morning after the killing, there were blood stains, yet damp, on the sheets and quilts, and permitted the State to introduce the clothing that Fells had on at the time he was killed. After the State rested, the appellant moved the court to exclude the evidence as to the blood stains on the bed clothing and the clothes worn by Fells at the time he was killed. The court ruled that the jury could consider the testimony to determine the entire facts in the case, to which ruling appellant duly excepted. The court, over the objection of appellant, permitted the State to introduce certain letters written by the appellant to Mrs. Fells after he and Mrs. Fells were put in jail. The court, in refusing to exclude this testimony, ruled that the same “is admitted for the purpose only of showing the motive for the killing, if they do show any, and the relationship of the parties prior to the killing, if these letters shed any light upon that situation.”

On behalf of the appellant the testimony tended to prove that, when he asked Fells the question whether he thought appellant was the cause of the trouble between him and his wife, Fells was standing with an open knife in his hand, and replied that appellant had written to his wife, and cursed appellant. Fells then started toward the door and in the direction of the appellant. As Fells came on appellant with his knife, appellant reached back for his gun, and, as he came up with it, Fells grabbed the end of the barrel. A scuffle ensued. Fells cut appellant’s shirt, his arm and his finger, and was striking at him with his knife when appellant shot him.

Among other instructions, the court gave the following: “No. E. The defendant seeks to justify the killing under a plea of self-defense. On this plea you are instructed that the plea of self-defense cannot avail the defendant in this case unless he was without fault or carelessness upon his part, and must have used all means within his power, consistent with his safety, to avoid the danger and avert the necessity of taking the life of the deceased, and if you find from the evidence that the defendant brought about this difficulty, then he cannot plead self-defense, unless he honestly and in good faith endeavored to withdraw from this difficulty before firing the fatal shot which caused the death of the deceased.” The appellant made the following objection to instruction No. E: “Because it does not give a correct definition of the law of self-defense, and because it tells the jury that, if the defendant brought on the difficulty, he could not act in self-defense in taking the life of Fells, and for the further reason that it is abstract and misleading. ’ ’

Among other prayers for instructions, the appellant asked the following: “No. 2. You are instructed that if, at the time the defendant shot the deceased, he had reasonable cause to apprehend great bodily harm at the hands of the deceased, and if at the time he had reasonable grounds to believe, and did believe, it necessary for him to shoot as he did, and that he acted without previous fault or carelessness on his part, then the killing was justifiable, and it was not necessary that the danger to the defendant should have been actual or real, but it was sufficient if the defendant had reasonable cause to believe that he was in danger of death or great bodily harm, and acted upon the belief.”

“No. 6. The defendant claims that the killing was justifiable because done in necessary self-defense, and you are instructed that, in determining whether the killing was necessary, the defendant had the right to be governed by' the situation as it appeared to him at the time, so that, under the law, if, from the appearance, the defendant honestly believed, -without fault on his part, that he was in danger of losing his life or receiving great bodily injury from his assailant, he was as much justified as if the danger had been actual or real.”

The court refused these prayers, to which ruling the appellant duly excepted. The jury returned a verdict finding the appellant guilty of murder in the first degree and fixing his punishment at imprisonment in the State Penitentiary for and during his natural life. Prom the judgment of the court entering sentence in accordance with the verdict is this appeal.

1. The appellant contends that the evidence is not sufficient to sustain the verdict. We have set forth substantially the facts which the testimony on behalf of the State and appellant tended to prove. Giving the evidence tending to prove murder in the first degree its strongest probative force in favor of the State, we are convinced that the testimony was sufficient to sustain the verdict. There was testimony from which the jury might have found that the appellant and Mrs. Pells, as we have stated, were in a liaison, which furnished a motive on the part of appellant for the killing; that appellant, at the time of the killing, deliberately took the life of Pells, when he knew that he was in no immediate danger of death or g’reat bodily harm at the hands of Pells. There was testimony from which the jury might have found that there was malice aforethought, and premeditation and deliberation essential to constitute murder in the first degree.' True, the testimony of the appellant tended to prove to the contrary, but this conflicting evidence made the issue one for the jury. See McIlwain v. State, 101 Ark. 443-448, and cases on point in 'brief of the Attorney General.

2. The court did not err in refusing to exclude the testimony as to the blood stains on the bedclothes, nor as to the clothing Pells had on at the time he was killed. These were of the res gestae, and were relevant. They were a part of the surrounding facts of the rencounter and were admissible for whatever light they might throw upon. it. See Spivey v. State, 114 Ark. 267; Carr v. State, 43 Ark. 99. In Bennett v. State, 95 Ark. 100-105, we said: “It was proper testimony to disclose to the jury the situation of the deceased and Ms articles of clothing, and all the circumstances of the place where the killing occurred.”

3. The court did not err in permitting the State to introduce the letters of the appellant to Mrs. Fells after they were put in jail. These letters were identified as the letters of the appellant, and he does not dispute that they were his letters. They were filled with protestations of love for Mrs. Fells, and tended to corroborate her testimony to the effect that appellant was in love with her at the time he killed Fells, and tended to prove a motive on the part of the appellant for killing Fells. Stokes v. State, 71 Ark. 112-117. “The State may show the existence of a motive for taking the life of the deceased in determining guilt or innocence of the accused.” Avery v. State, 149 Ark. 642, and cases there cited. See also Sneed v. State, 159 Ark. 65-74.

4. The court did not err in giving instruction No. E. The principal objection made is to the concluding language of the instruction, which told the jury that “if the defendant brought about this difficulty, then he cannot plead self-defense unless he honestly and in good faith endeavored to withdraw from tMs difficulty before firing the fatal shot which caused the death of the deceased.” The appellant contends that, under the language of the instruction above quoted, the jury might have concluded that the appellant’s action and conduct toward Fells’ wife was the cause of the assault made on appellant,' and, if such was the case, that the appellant did not have the right to stand his ground and defend himself, although he was in immediate danger of being killed or receiving great bodily injury. Counsel for appellant would be correct in this contention if the language of the instruction were fairly open to the construction which they now place upon it. But the court granted appellant’s prayer for instruction No. 13, in which the court told the jury that, “although they might believe that the defendant made love to the wife of the deceased before the killing, yet this would not 'justify the deceased in making an assault upon the defendant.” So we think it clear, when the instructions are considered .together, the court, in the language of instruction E, set out above, did not intend to instruct the jury that, if the appellant brought on the difficulty by his action and conduct towards Fells’ wife, he could not, in that, event, stand his ground and defend himself from death or great bodily harm in an assault that' was being made upon him by Fells. Such an interpretation of the court’s instruction would make it in conflict with instruction No. 13. When these instructions are read together, the jury would have had no right to conclude that the making of love to the wife of Fells by appellant brought on the difficulty and thus precluded him from standing’ his ground and defending himself from a murderous attack by Fells. The court, in effect, told the jury, under these instructions, that, if the appellant, by word or act other than making love to Fells’ wife, brought on the difficulty, then he could not plead self-defense until he had endeavored in good faith to withdraw from the difficulty before firing the fatal shot. The instructions, as thus construed, are not in conflict, but harmonize with each other, and instruction No. 13 explains the language complained of in instruction No. E. If counsel for appellant conceived that the language of instruction E, as quoted, was ambiguous and susceptible of the construction they now place upon it, it was their duty to direct the attention of the trial court specifically to this language and to ask the court to define specifically what it meant by the language, .“brought about this difficulty.” The court, at the appellant’s request, had negatively, at least, defined what the words “brought about this difficulty” meant, in saying that it was not making love by appellant to the wife of the deceased. If counsel for appellant desired an affirmative definition of what was meant by the language in the instruction, “brought'about this difficulty,” they should have asked it.

The charge of the court as. a whole is too long to embody in the opinion, but we have carefully read and considered all of the instructions that the court gave, and it occurs to us that the court meant to conform his charge on self-defense to the language of this court in Ferguson v. State, 95 Ark. 428-431, where we said: “No one, in resisting an assault madé upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, or in a mutual combat, is justified or excused in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. He cannot provoke an attack, bring on the combat, and then slay his assailant, and claim exemption from the consequences of killing his adversary on the ground of self-defense. * * After having provoked or invited the attack, or brought on the combat, he cannot be excused or justified in killing his assailant for the purpose of saving his own life, or preventing a great bodily injury, until he has, in good faith, withdrawn from the combat as far as he can, and done all in his power to avoid the danger and avert the necessity of the killing.” See Carpenter v. State, 62 Ark. 306-307, and cases there cited. Also Arnott v. State, 109 Ark. 378; Plumley v. State, 116 Ark. 17; Yancey v. State, 120 Ark. 350.

The court did not err in refusing to grant appellant’s prayer for instructions Nos. 2 and 6. These related to appellant’s plea of self-defense, and were fully covered by instructions on that subject which the court gave. Appellant complains that certain instructions given by the court on its own motion were too long to be clearly understood, and that they were argumentative and contradictory of other instructions given by the court. We find these instructions unnecessarily long, hut they are not misleading. They are hypothetical in form, and do not erroneously declare any proposition of law embodied therein, and do not misapply the law to the facts. After a consideration of the entire record we find no reversible error in the rulings of the trial court, and its judgment is therefore affirméd. •


author: Hart, J.,

text:
    Cook v. Cave.
    Opinion delivered March 31, 1924.
    1. Contracts — modification of written contract. — Parties to a written contract may, subsequent to its execution, modify it and substitute a valid oral agreement.
    2. Landlord and tenant — reduction of rent — burden op proof.— In an action for rent due under a written lease, where defendant alleged an oral agreement to. reduce the rent, the burden was on her to prove such verbal contract, supported by a consideration, was entered into between herself and the landlord after execution of the written lease.
    3. Landlord and tenant — reduction of rent — consideration.— Exercise by a tenant of an option to renew the lease would be a good consideration for a contract for reduction of the rent, if the new contract were otherwise valid and binding.
    4. Frauds, statute of — contract not to be performed within year. — A verbal agreement by a landlord to reduce the rent from the date thereof, in consideration of the tenant’s exercising her option to renew the lease for another year from a date more than a year later, is void under the statute of frauds (Crawford & Moses’ Dig., § 4862, subdiv. 5).
    5. Frauds, statute of — possession under verbal lease. — Where no acts are performed clearly showing that a tenant’s possession is continued under a new oral agreement within the statute of frauds and materially changing the terms of a written lease, such possession will be referred to the written lease and will not take the oral contract out of the statute of frauds.
    6. Frauds, statute of — pleading as defense. — A denial in plaintiff’s replication of having made a new verbal contract of lease, which was set up in the answer, is a sufficient denial of the new contract to let in the statute of frauds.

      7. Landlord and tenant — suit for rent and lien — defense.—In a suit in equity for rent and to enforce a landlord’s lien, it was error to sustain lessee’s defense of an oral agreement for renewal of the lease for a year to begin in the future, such agreement being within the statute of frauds.
    8. Landlord and tenant — receivership—cost.—Where a lease of ground gave the landlord a lien on the tenant’s building and furniture for unpaid rents, such lease was in effect a chattel mortgage, and in an action for rents the cost of a receivership, to which defendant did not consent and which was unnecessary, was properly charged against plaintiff.
    9. Receiver — fee.—Where a deputy sheriff as receiver of a hotel rendered merely supervisory service, and continued to discharge the duties of his office, receiving the same salary therefor, a fee of $500 as receiver held sufficient.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    This was ah action of unlawful detainer by J. E. Cook against Mrs. Belle Cave to recover the possession of two lots, together with a hotel building situated, thereon, in the town of El Dorado, Arkansas. The defendant was given notice under the statute to deliver ■possession of the property to the plaintiff, and the bond required by 'Statute was also executed. The complaint was filed on the 25th day of April, 1922.
    The defendant filed an answer in which she denied that the plaintiff was entitled to the possession of the property in question, and claimed the right of possession in herself under a lease executed to her by the grantor of the plaintiff. By consent of the parties the case was transferred to the chancery court. Upon application of the plaintiff, a receiver was appointed, who took charge of the hotel and operated it.
    On the 12th day of December, 1922, the plaintiff filed an amendment to his complaint, asking for judgment for twelve months rent at the rate of $412.50 per month, and that a lien be declared upon the hotel building, furniture, fixtures, and equipment therein, for the amount of said rent. It appears from the record that on the 12th day of February, 1921, Gr. E. Lindsay leased to Mrs. Belle Cave the lots in question for a term of two years, with a rental of $425 per month, payable in advance. It was also provided in the written contract that the lessee should erect a building on the premises, including a store. A clause of the lease also provided that the lessee should have the right of renewing the lease for a period of one year from the expiration of its term, upon the same terms and conditions as the original lease. Another clause provided that the building erected on the leased lots might be used for living and sleeping-rooms.
    Another clause provided that, at the expiration of the lease, the lessee should have the privilege of moving from said leased lots all of the improvements placed thereon by her. The lessee erected a hotel on said leased lots, and, after furnishing it, operated the hotel herself. It had thirty-five sleeping rooms, and was known as the Elk Hotei. J. R. Cook purchased the lots on which the hotel was situated, 'from Gr. E. Lindsay, on June 23, 1921, and received a deed thereto. He purchased the property subject to the lease executed by Lindsay to Mrs. Belle Cave, and knew that Lindsay had agreed to accept $412.50 as the monthly rental instead of $425, because Mrs. Belle Cave had to move one side of her building about twelve inches. Cook continued to collect $412.50 rent up to January 1,1922, and Mrs. Belle Cave owed him for twelve months ’ rent at the time the case was tried in December, 1922. Mrs. Belle Cave refused to pay Cook the monthly rental of $412.50. She tendered him $312.50, claiming that she had made a new agreement with him whereby he had reduced the rent one hundred dollars per month.
    Cook denied having made any agreement whatever to reduce the rent, and demanded the rent provided for in the lease from Lindsay to Mrs. Belle Cave. Upon her refusal to pay, he instituted this lawsuit.
    Mrs. Belle Cave was the principal witness for herself. According to her testimony, on Februarv 1, 1922, she made an oral agreement with J. R. Cook that he would reduce the rent one hundred dollars per month, in consideration of which she agreed to exercise the option given her' in the lease and renew it for an additional year. In other words, the agreement was that the lease should be extended one year from the end of the term in the lease from Lindsey to Mrs. Belle Cave, and she should pay rent from the date of the new agreement at the rate of $312.50' per month, payable in advance. Mrs. Belle Cave tendered this sum to Cook, and he refused to accept it, denying that he had made any new agreement with her whereby the rent was to be reduced from the amount provided in the original lease. Other facts will be stated in the opinion.
    The case was determined by the chancellor on the 18th day of December, 1922, in favor of the defendant, Mrs. Belle Cave, and a decree was entered in her favor adjudging that she recover $2,850, and that the possession of the leased property should be restored to her. T’o reverse that decree, the plaintiff has duly prosecuted an appeal to this court.

      E. W. McGough, for appellant.
    The appointment of a receiver was necessary to save the property from injury or threatened loss. B-. C. L., vol. 23, p. 18. The burden was on appellee to show a contract covering the rent other than what was in the written contract. This she has failed to do. Parol testimony is inadmissible to vary, qualify or contradict a valid written contract. 85 Ark. 135.

      Jordan Sellers, for appellee.
    Appellant was not entitled to a forfeiture or to maintain the action in unlawful detainer, since the lease itself contained a provision that the remedy of the plaintiff should be by lien on the building and furnishings. See 59 Ark. 405; 97 Ark. 537; 100 Ark. 565. In cases where there is a bona fide dispute as to the amount of rent, and rent is not paid for that reason, there is no forfeiture of the lease that would entitle the lessor to maintain unlawful detainer. 65 Ark.. 5'28; 31 Ark. 296. The appointment of the receiver was unauthorized in an unlawful detainer case. 49 Ark. 117. A proper notice to quit is jurisdictional, and must contain a proper description of the property sought to he recovered. 1 Ark. 480; C. & M. Dig., § 4838; 19 Cyc. 1143-4. _ The statutes must be strictly construed in unlawful detainer cases. 9 Ark. 441. There was no court order appointing a receiver, and the minutes of the judge’s docket showing this appointment by consent are not sufficient. 49 Ind. 126; 120 Ala. 412; 2 Tex. Civ. App. 157; 26 Ark. 653; 10 Ark. 483; 9 Ark. 67; 4 C. J. 100. If such an order was made, it should have been entered mmc pro tunc. 43 Tex. 458. The court was justified in allowing the receiver’s fee. 34 Cyc. 511-512, and note 18.
   Hart, J.,

(after stating the facts). It may be stated at the outset that the plaintiff brought an action of unlawful detainer against the defendant in the circuit court, and, by consent of the parties, the cause was transferred to the chancery court. Subsequently the plaintiff amended his complaint to recover judgment for the amount of rent due him under the written lease, and to ask that the amount recovered be declared a lien upon the hotel building,, furniture and fixtures therein, as provided in the. written lease. As a defense to the suit in this form, the defendant pleaded the terms of a new onal agreement which she alleges was entered into between herself and the plaintiff, in substitution of the written lease, which is the basis of the plaintiff’s suit.

It is well settled in this State that parties to a written contract may, subsequent to its execution, modify it and substitute a valid onal agreement therefor. Ozark & Cherokee Central Ry. Co. v. Ferguson, 92 Ark. 254; Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379, and cases cited; and Dierks Special School Dist. v. Van Dyke, 152 Ark. 27.

It is the contention of the defendant that there was a verbal agreement between herself and Cook modifying the written lease and reducing the rent to $312.50 per month. The written lease provides for the payment of $425 per month, which, it is conceded by the lessor, was reduced to $412:50 per mouth. The written lease must control the rights of the parties, unless it was changed, subsequent to its execution, by a valid oral agreement. In order to show the change or substitution of a new lease for the old one, it was incumbent upon Mrs. Belle Cave to show that a subsequent valid verbal contract was entered into between herself and Cook, which was supported by a consideration. In this connection it may be stated that the exercise of her option to renew the lease for an additional year, as testified to by Mrs. Belle Cave, would be a good consideration for a reduction of the rent, provided the new contract was valid and binding in other respects. 1 Underhill on Landlord and Tenant, p. 554; Tiffany on Landlord and Tenant, vol.-l, p. 1055, and 16 It. C. L. p-1162.

While the agreement on the part of Mrs. Belle Cave to exercise her option to renew the lease for an additional year was a good consideration for a reduction of the rent, still the new agreement, being a verbal one, was invalid under our statute of frauds. See -subdivision 5, § 4862 of Crawford & Moses’ Digest. In making this statement we are not unmindful of the cases of Higgins v. Gager, 65 Ark. 604, and Alexander-Amberg & Co. v. Hollis, 115 Ark. 589. In those cases a lease was made to commence at a period -of time in the future and to run for one year from that date. The court held that the time between the making of the lease and its commencement in possession could not, under the statute, be taken as a part of the term granted by the lease. Hence the oral contract for the lease of the land for one .year, to commence at a date subsequent to the making of the contract, was not within the statute of frauds.

In the case at bar the facts are essentially different. According to Mrs. Belle Cave, the new agreement was made on the first of February, 1922, and the lease was to continue for an additional year after the 12th day of February, 1923; but the provision for the reduction of the rent was to commence at the date of the new agreement. This had the effect of the parties attempting to make a new agreement to commence at once and extending over a period of more than one year. The provision in the new contract for a induction of $100 per month on the rent, to commence at once, was an attempted substitution of a new agreement for the old one, and was void under the statute of frauds, because it extended over a period of more than one year.

The defendant alleged a change in the terms of the lease, and the burden of proof was upon her to show it. She relied upon a new contract providing for a reduction of the rent as .a defense to the action, and, having failed to establish a valid contract reducing the rent, it follows that the court erred in finding in her favor that such a contract was made. Wheeler v. Baker (Iowa), 12 N. W. 767; Weber v. Powers (Ill.), 68 L. R. A. 610; Emery v. Boston Terminal Co., 178 Mass. 172, 86 Am. St. Rep. 473; Crawford v. Wick, 18 Ohio .St. 190, 98 Am. Dec. 103; Falk v. Devendorf (Wis.), 177 N. W. 894; 20 Cyc. p. 214; and 27 C. J., p. 210-211, §§ 179-180.

The possession of the leased premises was continuous and unbroken, and is referable to the old as well as to the new lease. It results, from the authorities cited above, that, in case of an oral agreement materially changing the terms of the old lease, if no acts are performed which clearly show that the tenant's possession is continued under the new oral agreement, such possession will be referred to the original lease, and such oral contract will be- void. Under subdivision 5 of 4862 of Crawford & Moses’ Digest, no action shall be brought to charge any person upon any lease of lands for a longer term than one year.

The plaintiff predicated his right to reoovér upon a valid written lease. The defendant pleaded, by way of defense, a new verbal contract, which we have held void under the statute of frauds.

The plaintiff filed a reply to the answer, in'which he denied making the new verbal agreement with the defendant. The denial in the replication of the plaintiff of the making of the oral contract on which the defendant based her oross^action is as effective for letting in the defense of the statute of frauds as if the statute had been specifically pleaded. The reason is that the reply denied the existence of any new agreement, and. it was incumbent upon the defendant to prove a legal agreement, which, in cases within the statute of frauds, must be a written one. Wynne v. Garland, 19 Ark. 23; Trapnall v. Brown, 19 Ark. 39; Stanford v. Sager, 141 Ark. 458; Dunphy v. Ryan, 116 U. S. 491, 25 R. C. L. par. 398, p. 746, and 27 C. J., pp. 369-372.

We think it clear, upon principle, under our statute of frauds and system of pleading, that it is sufficient to deny the contract without referring to the statute. Where the pleadings present the issue of agreement or no agreement, the party relying upon the agreement must prove a valid one. If the plaintiff had admitted that a verbal agreement had been made as alleged by the defendant, then he must have pleaded the statute of frauds in order to rely upon it. The plaintiff having denied, in his reply, the oral agreement alleged in the answer, the statute of frauds became a question of fact at the hearing. Hence the denial in the replication of the plaintiff of the making of the verbal contract set up by the defendant was as effective as a special plea of the statute of frauds.

In this connection it may be stated that the defendant was never evicted from the premises. According to her testimony, when she received the notice to deliver up the possession in the action for unlawful detainer, she consulted her attorney, and he advised her to give up possession of the premises. The notice to quit was served upon her by a deputy sheriff, and she at once vacated the premises.

According to the testimony of the sheriff, when the writ of possession came into his hands, he took the matter up with his lawyer, who advised him not to serve it.. The sheriff then took the matter up .with the defendant’s attorney, and informed him that he would not serve the writ of possession upon the defendant. The sheriff stated further that his recollection is that the defendant had already vacated the premises when the writ of possession came into his hands. She vacated the premises when the notice to quit was served on her. Hence she voluntarily surrendered the possession of the premises. "While she did not consent to the appointment of a receiver, she did consent to a transfer of the case to the chancery court. Subsequently the plaintiff filed an amendment to his complaint, in which he asked fox' a judgment for the rent which had accrued, and that the amount thereof be declared a lien upon the hotel property and the furniture and fixtures therein.

It follows that the chancellor erred in sustaining the defense of the defendant, and that he should have rendered a decree in favor of the plaintiff for the amount of rent due and unpaid under the original lease.

With regard to the receiver, but little need be said. While the defendant consented to the transfer of the ease to the chancery court, she did not consent to the appointment of a receiver. The appointment was made upon the application of the plaintiff, and there is no allegation in the bill which made the appointment necessary. By the terms of the lease the plaintiff had a lien upon the building and furniture for the amount of the unpaid rents. This provision created in equity a chattel mortgage on said property, and the appointment >of a receiver was unnecessary. Mitchell v. Badgett, 33 Ark. 387. Therefore the cost of the receivership was properly charged against the plaintiff.

The plaintiff claims, however, that the amount of fee allowed to the receiver by the chancellor was excessive, and in this contention we think he is correct. The receiver was a deputy sheriff, and, during the whole period of his receivership, he discharged the duties of tliat office and received the same salary which he had been paid before he was appointed receiver. He did not have active control of the management of the hotel, but was permitted to hire a manager to run it. His services were merely of a supervisory character, and we think the sum of $500 would have been an ample allowance for the services performed by him.

Therefore the decree will be reversed, and the cause remanded with directions to the chancellor to enter a decree in accordance with this opinion.


text:
    Canal Construction Company v. Clem.
    Opinion delivered March 31, 1924.
    1. Negligence — liability of independent contractor. — As a general rule, an independent contractor is not liable for injuries to a third person occurring after the contractor has completed the work and turned it over to the owner and the same has been accepted by him, though the injury resulted from the contractor’s failure to properly carry out his contract.
    2. Negligence — liability of independent contractor. — The general rule that a contractor is not liable for injuries to a third person occurring after he has completed the work and turned it over is subject to certain qualifications, as where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, in which cases the contractor is liable.
    3. Negligence — liability of independent contractor. — Where, in the construction of a canal, it became necessary to remove a highway bridge, which the contractor was under no duty to replace, his failure, in replacing the bridge, to nail down the flooring or to place the stringers on a level, thereby creating a defective condition, did not render him liable for injuries sustained by plaintiff While using the bridge six months afterwards; it not appearing that the bridge was left in such defective condition that the contractor ought to have known that the use of it would be attended by imminent danger to those attempting to pass over it.
    Appeal from Poinsett Circuit Court; W. W. Bmdy, Judge;
    reversed.
    STATEMENT OE EAOTS.
    W. T. Clem sued the Canal Construction Company to recover damages on account of injuries received by himself and wife, while crossing a bridge over a public highway, which injuries were caused by the negligence in the construction of the bridge by the defendant.

      It appears from the record that the Canal Construction Company made a contract with a drainage district to construct a drainage canal and laterals in Poinsett County, Arkansas. The drainage canal was constructed under a special act of the Legislature, which required the drainage district to build a bridge wherever the canal was dug across a public road. The Canal Construction Company had no contract with the district for the construction of bridges, or the replacement of those which it was necessary to tear down in digging the. canal. During the course of construction of the canal, in the fall of 1920, it became necessary for the Canal Construction Company to tear out Little Bay bridge, which was across the channel of a watercourse called Little Bay, and which was to be the main channel of the drainage ditch. The bridge was on a public road of the county, and was the only access to market of the people who lived across Little Bay.. After the Canal Construction Company tore out the bridge and dug its canal past the bridge site, the county judge made a contract with a sawmill man to rebuild the bridge. The bridge was rebuilt at once in a substantial manner, so that lumber wagons could be carried back and forth across it. In about six weeks thereafter it became necessary for the Canal Construction Company to again pass the bridge with its boats, which were used in digging the canal and its laterals, and it thereby became necessary to tear down the bridge .again. According to the evidence for the plaintiff, this was done, and the Canal Construction Company, as soon as its' boats passed through, undertook the work of rebuilding the bridge. In putting the bridge back it did not. level up the stringers, so that the north side of the bridge was higher than the south side. The flooring on the bridge was laid by the Canal Construction Company, but it was not nailed down. Shortly afterwards the high water washed out the middle bent of the bridge. This made the bridge more dangerous, because it would sway up and down and scare a team. Some months after this the plaintiff with his wife and family started to drive across the bridge in a wagon on their way to market. One of the mules stepped on a plank on the outside of a stringer, and this caused the plank to tip up and throw the mule off of the bridge. The falling mule dragged the other mule and the wagon and its occupants into the stream. The wife of W. T. Clem was drowned, and he was injured. He lived in the neighborhood, but had not crossed the bridge since it was rebuilt, and did not know that the planks were loose.
    According to the testimony of the defendant, the bridge was torn out by it and replaced, except the flooring, on the first day of January, 1920. In this connection it may be stated that the accident occurred on the 18th day of June, 1920. The Canal Construction Company was under no duty to replace the bridge, and only did so at the request of the residents of the neighborhood who had to cross the bridge in order to go to their nearest market place. These persons did not have any appliances with which to replace the stringers and ’heavy timbers of the bridge. The Canal Construction Company had such appliances, and, for this reason, replaced the stringers and the heavy timbers on the bridge. It had nothing to do with the replacement of the flooring. It left a hammer and some nails there, to be used by the residents of the neighborhood in replacing* the flooring,-but its servants do not know whether or not they were so used.
    The jury returned a verdict in favor of the plaintiff, and from the judgment rendered the defendant lias duly prosecuted an appeal to this court.

      A. B. Shafer, J. BrinTcerhoff and J. J. Marclis, for appellant.
    Appellant owed no duty to the county, district or appellee with respect to the replacement of the bridge; it was outside its contract. Duties of imperfect obligation imposed only by generosity, kindness, or charity are excluded. 100 TJ. S. 95; 115 N. Y. 55. For liability under .such cases citation is made to the following: cases: 109 Fed. 294; 98 Ark. 399; 123 S. W. 264; 165 Ky. 752; 127 S. W. 143; 6 So. 914; 30 La. Ann. 345; 68 N. Y. Supp. 407; 94 Ark 380; 122 N. E. 1; 145 Ind. 255; 140 Pa. St. 70; 89 S. W. 330. There was an efficient intervening cause, which would relieve appellant from any liability, in that the middle bent of the bridge washed out shortly after reconstruction. .See 100 S. W. 759; 87 Ark 576; 23 Wend. (N. Y.) 455. It was the duty of the public or the county to repair the bridge. 43 Kan. 509; 28 Lum. 344 (N. Y.); 80 Ind. 478; 11 Barb. 457 (N. Y.); 20 N. Y. S. 389. The uncontradicted evidence is to the effect that appellant did not repair the bridge in whole, or even attempt to do so, but what it did was gratuitous. There is no evidence to sustain the verdict. 53 Ark. 96; 51 S. W. 319; 55 S. W. 940; 97 S. W. 56; 115 S. W. 942; 234 S. W. 50. When the effect of such testimony is to defeat the action, the court should so instruct, and direct a verdict for defendant. 250 S. W. 902. See also 128 Miss. 593; 251 S. W. 34. One suing under Lord Campbell’s Act is barred of recovery by his contributory negligence. 139 S. W. 301; 23 A. L. R. 643.

      C. T. Carpenter, for appellee.
    It is the duty of any one cutting a public highway to restore it to its former condition. Ann. Cas. 1914A, 548; 43 L. R. A. 699; 13 R. C. L. 262; 9 A. S. R. 8651; 30 L. R. A. (N. S.) 1111; 54 Ark. 133; 104 Ark. 63; 118 Ark. 1. While it is true that drainage districts are exempt from liability for damages, this immunity does not extend to independent contractors. 110 Ark. 422; 131 Ark. 286; 118 Ark. 1. Appellant was liable because of the negligent manner in which it reconstructed the bridge. 54 Ark. 131; 69 Ark. 402; 104 Ark. 63. A master is liable, even though he did not know of or authorize acts of his servants which were done within the scope of employment. 93 Ark. 398; 40 Ark. 298; 111 Ark. 213. Whether an act done is in the line of a servant’s duty is a question for the jury. 48 Ark. 181. A traveler injured as a result of a defect in a highway is not debarred from recovering therefor by the fact that he knew the bridge to be unsafe, unless the danger was obvious and imminent. 4 R. C. L. 213, par. 19; 55 L. R. A. 162; 27 L. R. A. .(N. S.) 832'; 104 Mass. 73. See also 52 Ark. 368; 102 Ark. 258; 48 L. it. A. 455; 2 L. E. A. 450.
   Hart, J.,

(after stating the facts). The court told the jury that the defendant was under no duty to replace the bridge, but that, having undertaken to do so, it would be liable to the plaintiff if the accident was caused by its negligence in replacing the flooring of the bridge without nailing it down.

All the witnesses testified that the floor of the bridge was relaid without nailing it down. The witnesses for the plaintiff testified that this was done by the defendant, and the witnesses for the defendant testified that they had nothing to do with replacing the flooring on the bridge. They only replaced the heavy timbers, and left the flooring to be replaced by those who intended to use the bridge.

The general rule is well established that an independent contractor is not liable for injuries to a third person occurring after the contractor has completed the work and turned it over to the owner and the same has been accepted by him, though the injury resulted from the contractor’s failure to properly carry out his contract.

In Thompson on Negligence, § 686, the rule is stated as follows: “Subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. The contractor remains liable, if at all, only to the proprietor for a breach of his contract. ’ ’

As sustaining the general rule, we cite the following-cases : Young v. Smith & Kelly Co. 134 Ga. 475, 4 Ann. Cas. 226; McCrorey v. Thomas, 109 Va. 376, 17 Ann. Cas. 373; Albany v. Cunliff, 2 Comstock (N. Y.), 165; Curtin v. Somerset (Pa.), 12 L. R. A. 322; Devlin v. Smith, 89 N. Y. 470; 42 Am. Repts. 311; Thornton v. Dow, 60 Wash. 622; 32 L. R. A. (N. S.) 968; and O’Brien v. American Bridge Co. 110 Minn. 364, 32 L. R. A. (N. S.) 980.

An able and exhaustive opinion was written by Judge Jaggard in the case last cited. All the principal eases bearing on the general rule and the exceptions to it are cited and reviewed. In that case, five or six weeks after the acceptance of the bridge it 'Collapsed while the plaintiff and others were crossing over it. The evidence for the plaintiff tended to show that the bridge was so defective as to be immediately dangerous to the safety of those crossing it, and that the defects were so hidden or concealed that a reasonably careful inspection would not have disclosed them and the dangers resulting from them. The evidence showed that the fall of the bridge was caused by defective piers and an insecure foundation. The court said that the bridge company could not have avoided knowing the character of the underlying soil and of the imperfect materials used and the improper methods employed in the construction of the foundation and the piers. The dangerous condition of the foundation was concealed by the waters above it, and the piers were defective by reason of rotten cement which was also hidden from ordinary observance. The danger in the use of the bridge was immediate, and the court said that the jury was justified in finding that, within a short time after use, the bridge must fall; and that the use of the bridge would be injury and probably death to persons who would attempt to cross over it. Hence it was held that the facts established by the plaintiff made out a case for the jury on the question of negligence, within the exceptions to the general rule above stated.

An exception to the general rule was recognized by this court in the ease of Southern Express Co. v. Texarkana Water Co., 54 Ark. 131. In that case it was held that one who digs a trench in a public street is liable for an injury resulting from the negligent performance of the duty to restore the street to the condition it was in before the excavation, as where he fails to anticipate and provide for the natural effect of rains upon the earth excavated and replaced. In that case the rainfall came in the ordinary course of nature and displaced the newly filled earth. The defendant was bound to have known that this would be the natural consequence of its negligence in failing to properly replace the earth. The defendant knew that, if not properly replaced, the earth would sink in the street after the first rain, and thereby create a condition that would be immediately dangerous to the traveling public, if not an actual nuisance. Hence it came within the well-recognized exception to the general rule.

In the later case of Memphis Asphalt & Pav. Co. v. Fleming, 96 Ark. 442, the general rule itself was recognized and the facts held to bring the case within its application. In that case a construction company, under its contract with an improvement district, constructed a sidewalk along a branch without erecting a guard rail or barrier to keep travelers from stepping or falling into the branch. The foundation of the action was the negligence of the construction company in not placing a guard rail to warn travelers against danger. The court held that the facts brought the case within the general rule, and that there was no liability on the part of the construction company. The court further held that the rule does not require a formal acceptance of the contractor’s work, and that the liability of the contractor will cease with a practical acceptance after the completion of the work.

We think the facts in the present case bring it -within the general rule. Conceding that the flooring of the bridg'e was not nailed down and that the stringers were not level, it cannot be said that this defective 'condition made the bridge -so immediately and certainly dangerous that the Canal Construction Company ought to have known that the use of it would be attended by imminent danger to those attempting to pass over if.

In this connection we must take into consideration that one of the bents was washed out some time after the replacement of the bridge, and that the fact that the flooring wag not nailed down was obvious to any one. This condition had existed for six months after the bridge had been rebuilt, and during all this time it was being used for the purpose of hauling lumber and other materials across it. Its defective condition was in no wise concealed from the traveling public. The Canal Construction Company in no sense had any control over it. It was not required to repair the bent, which was injured by logs floating down during a freshet after the bridge had been replaced. Thus it will be seen that it was not shown that the defendant did work which was, or should have been, known to be imminently dangerous to persons who were to make use of it; nor was there a concealment of such dangerous condition.

Under the facts, when considered in the light most favorable to the plaintiff, it cannot be said that the work done by the defendant.on the bridge constituted a nuisance per se, or that it was replaced by the defendant in a manner so negligently defective as to be immediately and imminently dangerous to third persons who might use it.

It results from the views that we have expressed that the judgment must be reversed, and, it appearing that the case has been fully developed, no useful purpose could be served by remanding it for* a new trial, and the cause of action will be dismissed here.