text:
    Miller v. Yates.
    Opinion delivered October 18, 1926.
    1. Partnership- — payment by partner of individual debts. — Where a partner sells merchandise, and charges the purchase price against his personal obligation to the purchaser, without his copartner’s consent, the latter, after purchasing' the business, including accounts, may recover therefor against such purchaser.
    2. Partnership — authority of partner to pay individual debts.— Where a- partner without objection permits his copartner to sell partnership merchandise, and credit the price on his personal obligation, he cannot, after purchasing the partnership and outstanding -accounts, recover from the buyer.
    3. Partnership- — jury question. — Evidence held to make it a jury question whether a partner assented to his copartner- crediting the price of goods sold to defendant upon his copartner’s obligation .to defendant.
    .Appeal from Columbia Circuit Court; L. S. Britt, Judge;
    affirmed.

      Kitchens & Upton, for appellant.

      McKay <& Smith, for appellee.
   Wood, J.

O. E. Yates instituted .this action against N. B. Miller. Yates alleged that he and J. H. Roden were engaged as partners in the grocery business in the city of Magnolia, Arkansas, between the-first of April and the sixth of August, 1924; that the, plaintiff purchased Roden’s interest in the business, including all the outstanding accounts; that, while the plaintiff and Roden were in business as partners, Roden sold to N., B. Miller goods, wares and merchandise belonging to the partnership of the value of $392.26, and, without the knowledge or consent of the plaintiff, charged the amount- of such sale to himself in order to pay a personal indebtedness due by Roden to Miller. The plaintiff prayed judgment against Miller in the sum of $392.26.

Miller answered, and admitted all the.allegations of the complaint, except that Roden charged to himself, without the knowledge or consent of' plaintiff, the purchase price of the goods, wares and merchandise which the defendant purchased of Roden. Miller denied that he was indebted to the plaintiff in any sum.

The plaintiff, Yates, testified that he and Roden were in business as partners under the name of Roden & Yates. Witness did not know of, or authorize Roden to charge, the account which is. the foundation of this actioii to himself and obtain credit with Miller on' the individual indebtedness which Roden was due Miller. Witness was originally in partnership with Miller, and the business was known as Miller & Yates. Witness purchased Miller’s interest, and took Roden in, who was to own one-half of the business. Witness did not know that Roden had been letting Miller have merchandise and charging same to Roden to settle Roden’s individual indebtedness with Miller, until about the time or right after witness came into possession of the business. Witness did not know that Roden owed Miller until a while before witness bought Roden’s interest. Witness ascertained that Roden had charged Miller’s account to Roden when witness started to examine the books. ' Witness was fixing to buy Roden out when he discovered this. The bookkeeper was Wiley Langston. There was still $150 on the books charged to Miller at the time witness bought the interest of Roden.

Witness Coney testified that he was collecting for Yates about the time Roden retired from the business, and he presented an account against Miller in the sum of $150, which Miller refused to pay, saying that it had been credited to Roden’s note.

Roden .testified that he was in partnership with Yates and Miller in the original firm of Roden, Miller & Yates. Yates and witness bought out Miller’s interest.' Witness gave Miller a check for $2,300 and credited him on the books of Roden & Yates in the sum of $100. Yates, Miller and witness were present at the time of this transaction. The $100 credited on Miller’s account was the amount that he owed the firm of Miller & Roden & Yates at that time. Witness had borrowed $650 from Miller to cover part of witness’ stock in the firm of Roden, Miller & Yates, and witness asked Miller if he wanted what witness owed him at that time, and Miller replied, ‘■‘No.” Witness said to Miller, “I would be glad for you to trade here, and I will charge that to myself and credit you for it,” and Miller-replied, “Well, I have to trade somewhere, and that will suit-me as well as anything.” Yates was there in the house, but witness does not know whether he heard this conversation or not. Witness thought Yates was close up. The three of them were talking together when witness made that statement. The conversátion occurred just after the witness and Yates had bought Miller out. The matter of crediting Miller’s account on witness’ individual account came up between Yates and witness about a week or ten days after the above conversation and transaction, when Miller brought a new note for $500 for witness to sign and for witness to charge to himself the sum of $150 principal of the note and interest to date, which would -make it $189. Witness explained that to Yates, and asked him to sign the new note to Miller with witness. Yates refused to do so. Witness said, in the conversation with Yates, that he would charge the $189 to witness’ personal account, and credit Miller’s account. Witness was asked if Yates made any objection to this, and answered, “He didn’t say yes or no.” The arrangement witness had with Miller was as follows: “I gave Miller credit on the books of Roden & Yates for $189, and charged myself with it, and Mr. Miller credited me on the note with it, and then on the first of each month we made similar entries for whatever the amount his account was.” The next time that the matter came to Yates’ knowledge must have been about the first of August, about the time witness and Yates were dissolved. Along about the first of July Mrs. Miller came in and bought a bill of dry-goods and groceries amounting to about $40 or $45, and witness told Yates about it. Witness concludes his testimony in chief as follows: “I balanced Miller’s account and debited my account with the amount of his on the company books two or three times, I don’t remember exactly. As a showing for this, Miller was given a credit slip from to time. Miller held my note and was to credit the amounts of these credit’s that went to MilleNs account on the note. That was the agreement between us. I- do not know whether or not Yates knew -of these arrangements from either the time Miller withdrew or this other time that-1 spoke of, when the $500 note was-presented,' or’át the time we'settled with him (Miller):, no more than I have already told you. I know that I talked'with him' about it, just what I have told you.” On cross-examination witness- stated that he and Yates dissolved partnership in August or th¿ first part-of September — witness did not remember the exact date. He thought it was. about-' the first-of -Septémber, 1924. - -

' The defendant-, Miller, testified-in-his own behalf, and,- • according to' his testimony,' he'sold--but his. interest, to Roden and Yates about May-1, and the trade w-as finally-consummated on' May 9.- ' At that time Roden owed witness thei' siim of $650, money which witness had-loaned Roden' to put in the business of Rodeii, Miller;•&- Yates. Rodem asked- if witness wanted the money he owed-witness, and; witness replied that he could do without'it, as money' at that time was hard. Roden then asked if it would 'suit witness to trade at the store, and let Rodenpay' him that way, that is, to credit witness and charge-' thé amount to Roden. Witness agreed to that. Rbden told witness he would charge it to witness until the- end of the month, and then-Roden would charge it off to-his individual account and give witness credit -for it.' This was' in Yates’ presence and was a part of -the conversa- - tion that took place at the time of the-settlement. Witness first received a-bill -for this account when- it- was presented to' him last, fall, just a few' days before circuit court — the November term of court.- ■ That was. the first time witness knew that Yates was denying the arrangement witness had for collecting that account. Witness further testified that he did not remember whether there-, was anything said between witness and Roden-in regard to witness’ individual indebtedness until witness sold-out' to them or not. Yates knew Roden owed witness money, because witness asked Yates to sign the note, and he said he would rather not do it. Witness did not remember just when Yates was asked to sign the' note. Yates was present and heard Roden ask witness if witness wanted the money Roden owed witness at the time they paid for witness’ interest. Roden, Yates and witness were there at the office in the store at the time. The office is small— about six by eight. -

Vesper Holly testified that he was employed by Roden & Yates from the first of May to some time in August, when Roden sold out to Yates. He heard Roden and Yates talk about Roden balancing Miller’s account and charging it to Roden. He could not remember just the time he heard this. He heard them talk about it a few days after they bought Miller out. ■ They were talking about this money Miller had loaned Roden, and Roden asked Miller if he wanted this money, and Miller told him he would trade it out, as he needed the stuff. Later the witness heard Yates and Roden talking about the accounts. The collections were a little slow, and they were talking about what Miller had bought making the payment of these bills a little hard. Roden was talking to Yates about it. Witness heard them talking about a bill of goods Mrs. Miller had bought there. Roden was talking about them buying that much and getting no money for it. This was some time before Roden and Yates dissolved partnership. Roden and witness were running the business. Yates would help them in the store on Saturdays.

On redirect examination, Yates testified that nothing was said between Roden and'Miller in witness’ presence or hearing when witness settled with Miller as to how they should handle the account of Miller. Nothing was said to witness when Roden presented that note and asked witness to sign it about the way they were going to handle Miller’s account, and that was the first witness knew anything about the note. Witness did not know a thing about Roden having given Miller credit on the books for $189 until the bookkeeper found it. Witness did not work in there during the time witness and Roden were partners, except on Saturdays, and witness did not know anything about the way Roden was handling the 'business. Sometimes witness would drive in through the week and spend an hour or so, and would sell something if witness was needed. Witness had access to the books. Witness trusted them, and did not suspect them. He had farmed all of his life, and was farming at the time, and did not come in except on Saturdays.

At the request of the plaintiff the court instructed the jury as follows: “You are instructed that, if you believe from a preponderance of .the testimony that J. H. Roden sold goods, wares and merchandise to the defendant, and that said Roden charged said goods to the said defendant, and at the first of each month canceled the debt in order to discharge a personal obligation due by the said Roden to the said defendant, without the assent of the plaintiff, then you will find for the plaintiff.”

At the request of the defendant the court instructed the jury as follows: “You are instructed that partner-’ ship property may be disposed of to pay the individual debts of a copartner with the consent, either express or implied, of the other copartner, and, if you find from the evidence in this case that the plaintiff, O. E. Yates, knew of the transactions complained of at the time, or assented thereto, or that he later acquired knowledge thereof and failed to clearly and promptly repudiate them within a reasonable time after they came to his knowledge, he will be deemed to have ratified them, and will be bound thereby as though he had expressly authorized them in the first instance.”

The jury returned a verdict in favor- of the plaintiff in the sum of $392.26. Judgment was entered for the plaintiff in that sum, from which is this appeal.

The law applicable to the facts, which the testimony for the respective parties tended to prove, was correctly declared by the trial court in its instructions to the jury. Boyd v. Arnold, 103 Ark. 105, 146 S. W. 118; Smith v. Spinnenweber, 114 Ark. 384, 170 S. W. 84. Counsel for appellant contend that this court should declare as. a matter of law that appellee knew of the arrangement1 between Boden and appellant Miller whereby Miller was to trade at the store of Boden & Yates and receive credit on his account at the end of each month for the amount thereof, which amounts were to be charged to Boden’s individual account on the books of the .firm of Boden & Yates and credited,on Boden’s note held by Miller. We cannot agree with counsel in this contention. It occurs to us that the -above issue, under the evidence,- was purely one of fact. The material testimony bearing on-the issue is set forth above, and it speaks for itself. - N'o useful purpose could be subserved by discussing it. The appellee testified in substance that he did not know of the arrangement between Boden and Miller until about the time, or right about the time, he came into possession of the, business'himself, and-he did not know that Boden owed Miller anything until a while before appellee bought Boden out. - Appellee was asked this question: “How came you to find out that Mr. Boden had done this — had charged this account up to himself?” His answer was, “When I started to go into the books, Mr. Willie Harrington was attending to the books. I was just fixing to buy Mr. Boden out, and that was the time Mr. Harrington found this. ’ ’. This testimony of the appellee was of itself sufficient to make an issue of fact for the jury as to whether appellee had knowledge of the arrangement between Boden and Miller, as above stated by counsel for the appellant. To be sure, there was a sharp conflict on this issue of fact, but the jury were the sole judges of the credibility of the witnesses and the weight to be -given their testimony, .and it cannot be said as a matter of law that there was no testimony of a substantial character to sustain their verdict. The judgment must therefore be affirmed.


source: Caselaw Access Project

author: "Wood, J.

license: Public Domain

text:
    United Order of Good Samaritans v. Robinson.
    Opinion delivered October 18, 1926.
    1. Insurance — consideration for compromise. — An instruction' 'to' disregard a compromise agreement of the beneficiary to release, one-half of a benefit certificate unless the jury find some 'consideration therefor is erroneous where the evidence was uncontradicted that the release was signed with knowledge of defendant’s contention that it was entitled to refuse past-due premiums and cancel the policy.
    2. Insurance — validity of compromise. — Where a beneficiary, with knowledge of the contention by the insurer that insured was over the insurable age, signed an agreement to take a reduced sum under the policy, she will be bound thereby.
    Appeal from St. Francis Circuit Court; E. D. Robertson, Judge;
    reversed.

      Norfleet & Norfleet, for appellant.

      Mann & Mann, for appellee.
   "Wood, J.

This action was instituted by the appellee against the appellant to recover on a benefit certificate issued by the appellant on the life of the mother of the appellee for the benefit of the appellee-. The appellant agreed, on the conditions named in the certificate, to pay to the appellee, on the death of the assured, the sum of $300, and also to pay $50 as a burial benefit. The appeh lee set up the certificate, alleged that the assured had complied with its terms, and was in good standing at the time of her death; that the appellant had refused to comply with the terms of the contract, and she prayed for judgment in the sum of $350. The appellant, in its answer, admitted that the assured was in good standing at the time of her death on November 25, 1923. ' It defended on the ground that, at the time the certificate was issued to the assured, she was over 61 years of age, and that, under the terms of the policy and the by-laws of the appellant, in such event it undertook to pay $25 for each full three months membership in the order if the assured member died of dropsy, and not to exceed the full value of the policy. The appellant alleged that the assured died of dropsy, and that, under the terms of the' policy, the appellee was only entitled to recover the sum of $150, which snm the appellant had tendered and was willing to pay. The appellant further alleged that the appellee was estopped from claiming more than the sum of $150 because of a written agreement signed by her to accept that sum in full satisfaction of the policy; that the appellant and the appellee, before the death of the assured, were in a dispute as to whether the certificate was a binding contract. The appellant agreed to accept the premium and to continue the policy in force, notwithstanding the assured was over the age at which the appellant could issue its certificate, provided the appellee would agree to accept the sum of $150 on the death of the assured; that the appellee had entered into a written agreement to accept said sum, and the appellant thereupon continued the policy.

There was testimony on.behalf of the appellant to the effect that, under the by-laws of the order, at the time the certificate was issued the appellant was forbidden to accept as members persons over sixty- years of age. Under the by-laws of the order the appellant was authorized to refund the premiums that had been paid on the certificate and to cancel the certificate and past due premiums. It was under these circumstances that the following written agreement was executed by the appellee on October 16, 1923: “This is to certify that I, Mary Eobinson, beneficiary in policy of Fanny Coleman, hereby agree, in case of death of said Fanny Coleman, to accept- one-half of the amount stated in the policy now under consideration, and under no consideration will it be more than $150.”

A witness for the appellant who negotiated the transaction for the appellant testified that the appellee signed the agreement voluntarily, and the witness then accepted the past due premium from the appellee. Other witnesses for the appellant testified that they were present and witnessed the agreement, and that the agent of appellant refused to accept the past due premium unless plaintiff would sign the agreement. There was further testimony on behalf of the appellant tending to prove that the assured, at the time the certificate was issued, was more than sixty years of age. There was testimony to the effect that she died of dropsy.

The appellee testified that' she signed the written agreement above set forth, and she does not deny that it was signed under the circumstances as detailed by the witnesses for the appellant.

At the request of the appellee, and over the objection of the appellant, the court, among other instructions, gave to the jury the following: “Unless you find that there was some consideration for the signing of the release of one-half of the policy, you will disregard such release.” The jury returned a verdict in favor of the appellee in the sum of $350, and from a judgment in appellee’s favor for that sum is this appeal.

The court erred in giving the instruction above set forth, at the instance of the appellee. By this instruction the issue was submitted to the jury as to whether or not there was a consideration for the execution of the agreement. The facts are undisputed, and they show that there was a consideration moving to the appellee from the appellant for the execution of the agreement. Under the appellant’s by-laws, which were a part of the contract of insurance, the appellant had the right to refuse to accept past due premiums and to cancel the policy if the assured was more than sixty years of age. • The undisputed testimony shows that the appellant was contending that the appellee, at the time the agreement was entered into, was over sixty years of age, that the certificate was subject to cancellation, and that it had refused to accept the past due premium and would have canceled the certificate if the appellee had not signed the agreement to accept not exceeding the sum of $150 as full payment for the amount due under the policy. The undisputed testimony was to the effect that the appelfee voluntarily signed the above agreement, after she had been fully advised of the contention made by the appellant. The facts were undisputed, and they prove that the agreement was a valid one. It was within the power of the appellant, under its constitution and by-laws, to'enter into such an agreement, which was a consideration moving from the appellant to the appellee as an inducement for her to execute the agreement. Under the undisputed evidence, the appellee is therefore estopped from repudiating the binding force of her agreement.

If the appellee will enter a remittitur so as to reduce the judgment in her favor to the sum of $15.0, the error may be cured here. Por the error indicated the judgment is reversed, and the cause -will be remanded for a new trial, unless the appellee, within fifteen days, will agree .to the entry of a judgment in this court in her favor against the appellant in the sum of $150 with inter-’ est from the date of the rendition of such judgment.


author: Wood, J.

text:
    Breece-White Manufacturing Company v. Green.
    Opinion delivered October 18, 1926.
    1. Master and servant — safe appliances — jury question.— Whether a master was negligent in not. placing bumpers on a saw carriage to prevent breaking of a piston held for the jury.
    2. .Master and servant — assumed risk. — The breaking of a piston of a sawmill carriage held under the evidence to be an extraordinary risk and not one assumed by a servant.
    3. COMPROMISE AND SETTLEMENT — OPERATION AND EFFECT. — Where a ' 'master and servant agreed that the master should pay the medical bills of an injured servant and full-time pay during incapaeita- , tion, and the servant agreed to accept such payment as settlement, such .agreement bars the latter’s action for damages.
    4. E\fa>ENCB — privileged communication. — A physician may not, over the patient’s objection, testify as to information obtained by him while treating the patient.
    5. , Appeal and error — harmless error. — The exclusion of testimony tending to increase the amount of dámages is harmless where no objection is raised to the amount of recovery.
    Appeal from Desha Circuit Court; T. G. Parham, Judge;
    affirmed.

      E. E. Hopson, for appellant.

      Sam M. Levine and Norman Moore, for appellee.
   Wood, J.

This action was instituted by Jim Green against the Breece-White Manufacturing Company. The plaintiff alleged that, while in the employ of the defendant company, on the 26th of March, 1923, he was injured through the negligence of the defendant in failing to exercise ordinary care to provide plaintiff a safe place to work; that the defendant was operating a saw-carriage propelled by steam, which forced a, piston attached to the saw-carriage to operate along ,a horizontal plane; that the operation of the stearn carriage and shotgun feed was in the exclusive charge of the company’s sawyer; that the steam lines, the valves, and other parts of the machinery had become defective and dangerous; that such defective and dangerous condition was unknown to the plaintiff, but the defendant knew, or should have known, of such condition; that, as the result of the negligence of the defendant company, the piston was forced from the gun of the carriage and propelled against the plaintiff, breaking and fracturing the bones of both limbs as well as inflicting serious wounds about his head; that the defendant was negligent in failing to furnish bumpers for the piston to keep it within bounds, and in the careless handling of the carriage lever. The plaintiff alleged that he had been damaged in the sum of $12,500, for which he prayed judgment.

The defendant, in its answer, denied specifically the allegations of the complaint as to negligence, and alleged that the injury to the plaintiff was the result of an accident, and that the injury was the result of ordinary risks and dangers incident to the work in which the plaintiff was engaged. The defendant also alleged that,’ prior to the institution of the action, the plaintiff and defendant had entered into an agreement by which the defendant was to pay all doctors’ and medical bills and agreed to pay the plaintiff his wages for the full time that he was incapacitated. This agreement the defendant pleaded as a complete defense to the plaintiff’s cause of action. The defendant admitted that the plaintiff was in its employ at the time of the accident and injury, hut denied that the injuries were as severe as alleged by plaintiff, and denied that it was liable in damages for such injuries.

The testimony adduced by the plaintiff • tended to prove that, at the time of his injury, he was running a cut-off saw situated at the front end of the mill, about 70 or 80 feet from the carriage machinery. The accident occurred on March 26, 1923. The' plaintiff was standing with his back toward the carriage. The thing went off, and that is all plaintiff knew. The plaintiff then described the nature of his injuries, which it is unnecessary to set forth, inasmuch as there is no controversy as to the amount of the verdict, if the defendant is liable for the injury.

One of the witnesses for.the plaintiff described the occurrence as follows: “I was working on the cut-off saw at the time Jim Green was injured. The piston blew out. Three men were injured — two completely knocked out, and one dead; don’t know how it got loose. I was the closest man to the injury. The piston came from out of the gun — came very rapidly — a wink of the eye, and it was all over. The rings were on the end of it. The piston seemed to be broken off. The part broken off seemed to be that part ordinarily exposed while the carriage is working. I have been working around sawmills all my life. There was no bumper or anything like that between Jim Green and the carriage. I have seen carriages at other mills and have seen bumpers and other obstructions to check the carriage if it got loose. I saw them at the Chicago mill,- and at Bogalusa. The Bogalusa mill is the largest one I know anything about.” On cross-examination the witness stated that he knew nothing about the building of a sawmill, but had seen lots of them.' He had seen two sawmills that -had obstructions, which witness thought were put there for something — he just saw that there was a bumper that looked as. if it would stop a piston if it happened to come out. Witness saw a piston come out of the gun at Bogalusa. It killed three men.

J. Z. Tucker testified that he was in the employ of the defendant as superintendent of manufacture. He had charge of the employees and of the operation of the mill, running of the machinery, and the manufacture of the stuff that goes out. He knew something about millwright work. He had been fifteen or eighteen years engaged in mill work in connection with repairs, construction and assembling.of parts. Witness was talking to Jim G-reen at the time he was injured. Witness was injured at the same time. Witness’ duties were to watch after the carriage and things and see if he could detect anything wrong. The safety of witness as well as the safety of the other men depended on witness’ vigilance. Witness did not know that there was any unsafe condition or that anything was liable to happen to the machinery at the time of the accident. The piston broke and the follow-head was separated from the gun, causing the accident. If there had been any defect there, witness would have discovered it, but, so far as human knowledge and skill was concerned, the mill was, up to the time of the accident, in good condition. After the accident happened, witness saw the broken parts, and nothing has developed in examining these parts to show that witness could have foreseen the accident. There, were no bumpers installed in the mill at the end of the piston. It was not necessary for the safety of the men working around the plant. Witness had known cases of bumpers doing more damage than good. The witness was charged with the duty of installing burftpers if it became necessary. A bumper has been installed since the accident, but witness did not do it. The carriage was under witness ’ charge. The accident happened by the piston coming out of the back end of the cylinder. They were operating at the time, and the brake was on center, and the valve was open to go ahead, and, when that thing broke in two, it left the head, and the remaining part of the steam rushed in there with the full steam power behind it. The whole cylinder blew off.

The defendant’s master mechanic testified, and qualified as a machinist and master mechanic. He stated that the saw-carriage runs backward and forward on the track. That that was what it was doing when the piston broke. Witness never had his attention called to any 'defective condition of the piston. The piston broke by reason of crystallization of the metal. The piston was purchased from Fohr & Stowell, a reliable machinery concern. The machinery in the plant was first-class. A piece of crystallized metal cannot be detected by looking at it. The defendant could not have known that the piston was defective before it broke. The reason witness knew that the piston was crystallized is that it was glassy .and glittery when it was first broken. Witness looked at it about five minutes after it happened, and it was like glass china in spots all over it. If it had not been crystallized, it would not have broken off smooth.

C. L. White testified that he was the general manager of the defendant company. He was at the mill on the day when Jim Green was injured. He had just left the mill at the time of the accident. No notice or complaint ,of any kind had been served on witness as to the condition of any machinery, and especially of the piston. Witness had no information that the piston was defective. As soon as the accident occurred, witness called Drs. Barlow, Francis and MacCammon, and told them to look after Jim Green until he was discharged. Witness told .Green that he.was going to pay him for his time and doctors’ bills and his medicine bill until he was able to go to work. This th(^defendant company did. Green came back to work about a year from the time of the accident. When defendant paid Green for his time and paid his’ doctors ’ bills, Green accepted it, and indicated to witness that he was satisfied when witness told bim defendant would pay until he came back to work. The defendant company took one dollar a month from the pay of each man, provided they wanted to pay it that way. Some of them did not want to pay it. It was optional on their part.- • If they pay it, it gives them free doctors’ services'whenever they need-it. The company 'Is not the beneficiary of the one dollar-in‘any way, and, if a man objects to'paying it,'it is not taken -out.’.' It is not' a fact that Green was paid- without coming to an agreement with- him. ' The defendant never stopped'pay- ' ing.1 It paid "Greén’s time' and" doctors’ bill and medicine bill until he came back' to work.'- When hé returned to work, he afterwards left -on his own hook.

.. A witness who was operating the saw'at'the'time of the injury testified that he was operating the steam feed as he had always done, and that there was no warning,that there was anything wrong'. ' The secretary and treasurer .of the defendant company 'testified that the company paid the'plaintiff from March'26, 1923, 'the date of the accident, to March 16, 1924,' the sum' of $593.60. After plaintiff carne back to' work the company paid him $13.50. The company paid' for mediciné and doctors \ bills' the sum' of $553.10.

The defendant offered.to prove by.Dr, MacCammon that he was in the employ of the defendant company to treat those-of the defendant’s employees who wished to be on the doctors’, list. He-gave his .attention to. the employees, their .families and dependents. He- saw Jim Green immediately, after the injury. He had concussion of ,the brain, which, rendered him unconscious, from the . time of the accident until the next morning. During that : time he Buffered no pain. Plaintiff did not complain any more than the average patient. He saw the wounds exhibited to the jury, and would say that the bones are in-good shape. The witness would consider the .plaintiff a well man. The .plaintiff objected to -the.introduc...tion of the above testimony, and the court sustained ..the objection. . .

The plaintiff-testified in rebuttal that he'did'not have a settlement with the defendant- after the injury. He did receive money from the company for his time.

Over the objection of the appellant, the court gave the following instruction: “No. 2. If the plaintiff, Jim Green,-was in the performance of his duty, in the employ of the defendant corporation, Breece-White Manufacturing Company, engaged at work in a place and'under circumstances in no way connected with the instrumentality that caused the injury of which he complains, he having been struck by a portion of the flying machinery which was hurled against him through the pressure of steam, as the result of want of ordinary care on the part of the defendant corporation, its agents or servants, or through the failure of the defendant, its agents or servants, to discard or repair the said machinery or appliances, after a defective condition therein, if such existed, was known to the defendant company, its agents or servants, or should have been known to the defendant company, had ordinary care been exercised to.detect such defective condition, or in the failure of the defendant company, its agents or servants, to use due care to provide the plaintiff with a reasonably safe place ip which to work, then it is your duty to find for the plaintiff.” To the ruling of the court the defendant duly excepted.

The defendant asked the court to instruct, the jury that, under the law and the evidence, the plaintiff is not entitled to recover. The defendant also presented the following prayers for instruction:

“No. 15. You are instructed that the plaintiff, in accepting employment by the defendant company, assumed all of the risks and hazards incident to the operation of a sawmill.
“No 16. If you find from the evidence that the defendant company entered into an agreement with the plaintiff by the terms of which the defendant company should pay the doctors’ bills and medicine bills and plaintiff’s time from the time of the injury until he should be able to return to work, and if you find that the defendant, in good faith, carried out the conditions of the contract entered into, and that plaintiff accepted the medical treatment and payments and did return to work for defendant company on the 16th day of March, 1924, then you will find for the defendant.”

The .jury returned a verdict in favor of the appellee in the sum of $1,000. Judgment was entered in accordance with the verdict, from which judgment the defendant duly prosecutes this appeal.

The appellant contends that there was no evidence to sustain the verdict; that the undisputed evidence proved that the injury to appellee was the result of an accident; that the accident was caused by the breaking of the piston, and the breaking of the piston was caused from the crystallization of the metal thereof, which could not have been anticipated by the appellant company, and could not have been discovered and prevented by the exercise of ordinary care upon the part of the appellant. The appellant therefore urges that the court erred in giving appellee’s prayer for instruction No. 2, submitting to the jury the issue of negligence, and also erred in refusing appellant’s prayer No. 1 for a peremptory instruction.

We do not concur with learned counsel for appellant in this view of the testimony. It was an issue for the jury under the evidence as to whether the appellant was negligent in failing to exercise ordinary care to provide the appellee a safe place in which to work. It was for the jury to say whether the exercise of ordinary care upon the part of the appellant required the construction of bumpers or some other means of obstruction which might have protected the appellee from injury resulting from the breaking of the piston while in the performance of his duty. There was testimony for the appellee tending to prove that other large mills had built bumpers which gave their employees such protection, and appellant’s own superintendent of manufacture, without any objection on the part of the appellant, testified that, after the injury, appellant also installed such a bumper, and that originally such a bumper was installed there. The jury had before it for inspection the part of the piston that broke.

We believe tbe testimony was sufficient to make it an issue for tbe jury as to whether or not the appellant was negligent in failing to exercise ordinary care to provide the appellee a safe place to work. The jury might have concluded that, by the exercise of ordinary care on the part of the appellant to examine the machinery and appliances and the place where appellee was performing his -duties, -the . appellant should have discovered that the installment of bumpers was necessary for the protection, of the appellee, or that a proper inspection of machinery would .have discovered some defect therein. The issue.of negligence was correctly submitted to the jury by the court’s instructions, and there was testimony sufficient to- sustain the verdict on that issue.

Counsel for appellant. next contends that the undisputed testimony shows that the risks of the work in- which appellee was engaged were obvious, and that .the appellee assumed these risks. But not so; even the testimony of appellant’s own witnesses proves conclusively that the risk of injury from the breaking of a piston, under the circumstances, was not an ordinary risk to appellee’s work, nor was it an obvious risk. On the contrary,, it was one of those extraordinary hazards which only the exercise of ordinary care upon the. part of the piaster might have anticipated and prevented. -It was not so open and obvious that the appellee, in the exercise of prdinary care for his own protection in the-performance of his duties, could or should have, known, and. appreciated the danger incident to. the. operation of the carriage machinery. No duty of inspection devolved upon appellee to discover the alleged defects in machinery and .appliances which caused the injury. The servant does not assume, such risks. See Greenville Stone & Gravel Co., v. Chaney, 129 Ark. 96, 195 S. W. 13; see also Chess & Wynne Co. v. Wallis, 134 Ark. 136, 203 S. W. 274; Vaughan v. Hinkle, 146 Ark. 149, 225 S. W. 226; C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15.

The court correctly instructed the jury that the plaintiff, while in the employ of the defendant, agreed to assume all the ordinary risks and dangers incident to the work in which he was engaged, hut the court also correctly ruled in refusing appellant’s prayer for instruction No. 5. That instruction was too broad, and did not properly declare the law of assumed risk applicable to the facts of this record.

The court, did not err in refusing to give appellant’s prayer for instruction No. 16. • Such prayer was not an accurate statement of the law applicable to the facts on that branch of the case. The court correctly declared the law on this branch of the case in instruction No. 17, which is as follows:

“You are instructed that, if you find from the fair preponderance of the evidence that the plaintiff and defendant entered into an agreement, after the injury complained of, by- the terms of which agreement the defendant agreed to pay plaintiff’s doctors’ and medicine bills and agreed to pay plaintiff full time during such time as he should be incapacitated and unable to work, and that the plaintiff accepted said terms of settlement in full settlement of any claims he might have, and returned to work for the defendant company, the payments made will be a bar to his recovery of any damages, and you will find for the defendant.”

There was no error in the ruling of the court in excluding the testimony of Dr. MacCammon. This testimony was not competent because it was information obtained by the physician while treating his patient, and was therefore in the nature of a confidential communication. Furthermore, even if the testimony had been competent, it was not prejudicial error to exclude it, because it related only to the measure of appellee’s damages. The appellant, in its motion for a new trial, did not assign as error that the verdict was excessive. Therefore the exclusion of Dr. MacCammon’s testimony, in any view of the case, was not prejudicial to appellant.

We find no error in the rulings of the trial court, and its judgment is therefore affirmed.


author: Hart., J.,

text:
    Brenard Manufacturing Company v. McRee’s Model Pharmacy, Inc.
    Opinion delivered October 18, 1926.
    1. Bills and notes — purchase of patented article — form of note. —Under Crawford & Moses’ Dig., § 7956, requiring negotiable notes for patented articles to be executed on a printed form and to show on its face the consideration for which it was given, and § 7959, excepting merchants and dealers who sell in due 'course of business, held that, where plaintiff contracted to give defendant, the exclusive agency to sell a patented phonograph and took his note therefor without complying with § 7956, he was Dot a dealer within § 7959.
    2. Bills and notes — sale of patented articles — object of statute. — The object of Crawford & Moses’ Dig., § 7956, requiring negotiable notes given for patented articles to show their consideration on their face, was to save to the vendee any defenses he might have in an action on his note, and hence the failure to comply with the statute did not affect the validity of .the sale, though no recovery could be had on the note.
    3. Appearance — effect of filing answer. — Where an amended complaint set up a different cause of action from that relied upon in the original complaint, defendant, by filing an answer to the amended complaint, will be held to have entered its appearance.
    4. Bills and notes — invalidity of note — separable contract.— Where a note for a patented article and a written contract to which the note is attached are separable, detachment of the •note from the contract will not invalidate the contract, though the • note is invalid for noncompliance with Crawford’& Moses’ Dig., § 7956.
    5. Appeal and error — prejudice.—It is reversible error to instruct the jury upon an issue which had been abandoned by the plaintiff.
    Appeal from Phillips 'Circuit Court; E. D. Robertson, Judge;
    reversed.
    STATEMENT by the court.
    The Brenard Manufacturing Company brought this suit in the circuit court against McBee’s Model Pharmacy, Inc., to recover the sum of $195, alleged to be due upon a' promissory note. Among other defenses interposed by the defendant, it pleaded that the note was void because it was given for a patented article without showing upon its face that it was executed in consideration thereof. Subsequently the plaintiff filed an-amendment to its complaint in which it sought to recover upon a written contract, which is exhibited with the complaint. The defendant filed an answer to the amended complaint, and thereby entered its appearance to the action.
    On the trial of the case, the written contract was introduced in evidence, and bore the date of January 11, 1923, and was signed both by the plaintiff and the defendant. The contract recites that, in addition to a check for $75, the defendant agreed to execute a note to the plaintiff for $195 for a Claxtonola phonograph equipment. The contract further provides that the plaintiff grants to the defendant the exclusive agency for Claxtonola phonographs in Helena, Arkansas, for a period of three years. The agreement also provides that defendant agrees to order a new Claxtonola phonograph as fast as it sold the one on hand.
    The note was also introduced in evidence. It was in common form, dated January 11, 1923, and payable to the order of the plaintiff. The note was payable in installments of .$32.50 each. The first installment was due thirty days after date, and each succeeding installment was due thirty days after the preceding one.
    Theodore O. Loveland was a member of the Brenard Manufacturing Company, which is a partnership. According to his testimony, the Brenard Manufacturing Company is a dealer in phonographs and radio equipments. The firm sells patented articles in the usual course of business. The defendant entered into the contract with the plaintiff for the purchase of the phonograph in question and the exclusive agency to sell phonographs of that make in the city of Helena. The note originally sued on was executed pursuant to the terms of the written contract. It does not show on its face that it was given for the sale of a patented article.
    The defendant is a corporation, and John I. McRee was its president when the contract and note in question were executed. According to his testimony, the contract and the note were all on one piece of paper when he signed them. The note was detached from the contract when it was sued on.
    The jury returned a verdict for the defendant, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      A. D. Whitehead, for appellant.

      Moore, Walker & Moore, for appellee.
   Hart., J.,

(after stating the facts). It is first'contended by counsel for the plaintiff that the court erred in not directing a verdict in favor of the plhintiff.

In the first place, it is contended that the provisions of § 7956 of Crawford & Moses ’ Digest,' which provide that a negotiable instrument given for a patent shall be absolutely void unless it is executed on a printed form and. shows on its face that it is executed in consideration qf a patent, does not apply in the present case, because the plaintiff was a dealer, and falls within the exceptions to the act provided for in § 7959. We do not agree with counsel in this contention.

It . is true that one of the partners testified that the plaintiff, which is a partnership, is a dealer which sells patented articles in the usual course of business, but the contract itself shows that the present transaction does not fall within that class. Under the terms .of the contract, the defendant secured from the plaintiff the exclusive agency to sell Claxtonola phonographs within the city of Helena for the three years, and, as part of the contract, the defendant was to receive one phonograph to be placed on sale. As fast as each phonograph was sold by the defendant, it was to be replaced by another, purchased from the plaintiff at the same price. Under these circumstances the plaintiff was not a merchant or dealer who sells patented things in the usual course of business, in contemplation of the statute. If the plaintiff had merely sold the defendant patented articles for resale, this would have constituted the plaintiff á dealer or merchant within the exceptions provided for in the statute, but the fact that the defendant was given the exclusive agency to sell the patented articles within a given territory takes the case without the provisions of the statute and makes it fall within the rule laid down in Williams v. Layes, 168 Ark. 675. Hence the court did not err in refusing to instruct a verdict for the plaintiff.

The next assignment of error is that' the court erred in giving, at the request of the defendant, the following instruction: “The jury is instructed that, if they find from the evidence that the note offered in evidence was given for a’ patented article, and does not so show on its face, then such note is void, and the plaintiff cannot recover on the note.”'

In this contention we think that the counsel for the plaintiff is correct. It is true that the suit was originally brought on the note, but subsequently the plaintiff filed an amended complaint, in which a recovery wás-sought alone upon the contract.-

This court has said that the object of the statute in question was to save a vendee of any patented article all the defenses that he might have to an action on his note for the purchase money, and to prevent the loss thereby by transfer of the note to an innocent holder before maturity. Hence it was held that the failure to •comply with the statute does not affect the validity of the sale, and that, though the note may be void, the seller may recover whatever may be due him on the contract of sale from the purchaser. Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, 66 S. W. 918, 91 Am. St. 80; and Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013. While a suit upon the note and upon the contract of sale are entirely separate and distinct causes of action, the effect of the defendant’s answering the complaint and defending the action entered its appearance.

According to evidence for the defendant, the contract and the note were attached to each other when they were first executed, and the note was detached for the purpose of bringing suit on it by the plaintiff. This, however, does not help the defendant any. If it should be said that, on account of the note having been detached by the plaintiff, the case should stand as if the contract and note were still fastened together and constituted one instrument, the provisions of the statute would not, in anywise, be violated. In other words, if the contract and note are to be considered but one instrument, the note would show on its face that it was given for a patented article and thus show a compliance with the statute. In that event plaintiff would be entitled to recover.

The case of the Toledo Scale Co. v. Gogo, 186 Mich. 442, 152 N. W. 1046, Ann. Cas. 1917E, 601, relied upon by counsel for th'e defendant, is not in point. In that case there was a conditional sale of a pair of scales as expressed in the written contract, and a note for the pur-. chase price was a part of the same instrument. The plaintiff in that case, by detaching the promissory note, 'created a negotiable instrument, absolute in form, which he could sue on; and the court held this to have been a material alteration of the instrument, and to result in avoiding it.

In the case at bar the contract of sale was an absolute and not a conditional one. The detaching of the note did not in anywise change the terms of the sale. The case falls exclusively within the rule announced by the decisions of this court cited above, to the effect that, while no recovery can be had upon the note where the statute is not complied with in its execution, still a recovery may be had upon the contract.

To sum up, it may be said that the detachment of the note from the contract in no wise affected the contract. The contract, on its face, is an absolute one, and the plaintiff has elected to disregard the note and sue on the contract. If the note was still attached to and a part of the same paper as the contract of sale, the plaintiff could disregard it and sue on the contract. According to the evidence for the defendant, it had complied with the terms of the contract, and, in accordance with its terms, had offered to return the phonograph because it had been unable to sell it.

The result of our views is that the court did not err in refusing to direct a verdict for the plaintiff, but did err in giving the instruction above quoted. By amending the original complaint and suing on the contract, the plaintiff abandoned its original cause of action and sued upon an independent and distinct one. In short, the plaintiff sought no recovery on the note, and the instruction in question tended to confuse and mislead the jury by directing its attention to a matter that had ceased to be an issue in the case. It was therefore necessarily prejudicial to the rights of the plaintiff, and calls for a reversal of the judgment.

The judgment will therefore be reversed, and the cause remanded for a new trial.


author: Hart, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Allison.
    Opinion delivered October 18, 1926.
    1. Master and servant — assumed risks. — A servant assumes the risks ordinarily incident to his employment.
    2. Master and servant — assumed risks. — Negligence on the part of a master or fellow-servant is not an incident of a servant’s employment, and the servant does not assume the risks therefrom unless they are obvious and patent.
    3. Master and servant — assumed risks. — At common law, a servant assumes the extraordinary risks incident to his employment or risks caused by the master’s negligence, provided they are obvious or fully known and appreciated by him.
    4. Master and servant — assumed risks. — While in the case of ordinary risks a servant is conclusively presumed to know them, he is not charged with constructive knowledge of the negligence of the master or of a fellow-servant.
    5. Master and servant — contributory negligence. — A carpenter working on the roof of a caboose, who was injured when he stepped on a loose piece of tin left by a fellow-servant whose duty it was to remove such loose pieces, held not negligent as matter of law.

      Appeal from Lonoke Circuit Court; George W. Clark, Judge;.
    affirmed.

      Thos. S. Busbee, George B. Pugh and II. T. Harrison, for appellant.

      Harry H. Myers and Reed ds Beard, for appellee.
   Hart, J.

Appellant prosecutes this appeal to reverse a judgment against it in favor of .appellee for damages for injuries sustained by him, which, he alleges, was caused by the negligence of a fellow-workman while they were engaged in repairing the roof of .a caboose for appellant. This is the second appeal in the case. The judgment upon the first appeal was reversed on account of error of the trial court in instructing the jury. Allison v. C. R. I. & P. Ry. Co., 164 Ark. 333, 261 S. W. 629.

The sole ground relied upon for a reversal of the present judgment is that the evidence is not legally sufficient to support it. Counsel for appellant insists that, when the evidence is viewed in the light most favorable to the appellee, he should be- held, as a matter of law, to be precluded from recovery under the doctrine of assumed risk. The doctrine of assumed risk is predicated upon the knowledge of the employee of the risks to be encountered and his consent to be subject thereto. Hence the general rule is that the servant assumes the risks ordinarily incident to his employment. Negligence, on the part- of the master or of a fellow-servant, is not an incident of -the employment; and the servant -does not assume the risks therefrom, unless they are obvious and patent. C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273, S. W. 15.

At common law, the rule is well settled that a servant assumes the extraordinary risks incident to his_ employment* or risks caused.by the master’s negligence, which are obvious or fully known and appreciated .by him. Boldt v. Pennsylvania Railroad Co., 245 U. S. 441.

The - result of these views is that, in the case of ordinary risks, the servant is conclusively-presumed to know them, while, in the case of risks caused' by the master’s negligence of the negligence of a fellbw:servant, he is not charged with constructive knowledge, unless they are so obvious that an ordinarily prudent person would have observed and appreciated the risks.

In the case before us, according to the evidence for appellee, at the' time the accident in question happened he had been working for several years as a carpenter,- and. had worked for another railroad company in the same capacity for several years prior to his employment by appellant.

On the day he was injured, he and H. C. Voss, another carpenter, were on the top of the caboose,1 tearing the siding off of the cupola. Their object in- tearing the-siding off was in order that S. W. Dale, a metal worker, could pry the tin off and replace it with new tin. The old tin or flashing had become rusty, and this caused the '• roof to leak. In placing the tin On ' the roof, it was caught and flashed up against the cupola. The strips of wood were then nailed on the cupola. Thus, it was necessary to remove the siding before the tin flashing could be taken off. The strips of flashing are about ■ 7% inches wide and about 4 feet long.

Dale and appellee were working on the north side of the cupola, and Yoss was working on the south side of it. The cupola is about 30 inches high and the caboose is about 9 feet wide. There was room enough to walk on the top of the caboose on each side of the cupola. Appellee started to work at the northeast end of the cupola, and Dale was working behind him, cutting the tin. •

It was the duty of appellee, when he pried off the1 siding, to carry it along in front of him until he could reach a place where he could dump it off of the car.1 Tt was also the duty of Dale to take up the tin as fast as he cut or pried it off. In other words, each workman was supposed to clean up his work as he went along.

After appellee had pulled all the siding off of one side, he was notified to go over on the other side so as to be out of the way of Dale. Appellee stood up next to the cupola, about the middle of the car. Yoss asked him about the flashing on the south end of the caboose where he was working. Voss said that the flashing on the south end of the caboose was rusted and warped. Appellee crawled or walked on towards the end of the car, and then started to walk around the side of the cupola next to the edge of the car. In doing so, he stepped upon a piece of tin or flashing which had been pried up. This caused him to slip, and to fall off the car,' carrying the piece of flashing or tin with him. He had looked down, as he stepped around the edge of the cupola, and observed the piece of tin or flashing. He did not observe that it had been pried loose from the roof of the car, when he stepped on it. In other words, he did not know that the flashing had been pried up and that it was loose when he stepped on it.

Under these circumstances, we do not think it can be said, as a matter of law, that an ordinarily prudent man or one with the experience of appellee ought to have noticed that the piece of flashing was loose. He was not required to make an inspection to see whether Dale had left any of the flashing where he would walk on it.

It was the duty of each servant to clean up his work as he went along. Appellee was working in front of Dale. When he tore off strips from the caboose, it was his duty to carry the strips along in front of him until he reached a place near the edge of the roof of the car where he could throw them on the ground. It was likewise the duty of Dale to remove the tin as he pried it up. He might anticipate that Voss or appellee would have occasion to walk on the place where he had pried up the tin, in order to perform their work. It is fully inferable from the testimony that it was the duty of Dale to throw the tin or flashing off of the roof of the car when it was found to be so defective that it could not be used again, or any part of it used for repair work.

The testimony shows that sometimes new tin would be carried on the roof by Dale to be used in repair work, and sometimes he could use a part of the old tin for that purpose. In any event, he knew that his fellow-workman might have occasion to walk around the cupola in doing their work. Hence it is fairly inferable that, when he pried up the strips of tin or flashing, he should have either thrown them off of the roof or have carried them to one side, so that his fellow-workman would not slip on them in walking around the cupola. Thus it will be seen that the condition which caused the injury was created by the negligence of a fellow-servant of appellee.

Appellee was not required to make an inspection to see whether or not a strip of tin had been pried up before he stepped on it. He had a right to assume that Hale had discharged his duty in the premises. Appellee said that he looked down on the roof before he stepped around the corner of the cupola, and did not notice that the strip of tin or flashing had been pried up. The jury might have found his testimony on this point to be true. It might have believed that Dale left the tin laying flat down on the roof in the same position that it was before he pried it off, and that appellee, relying upon the fact that Dale would move the tin out of his way when he pried it up, did not notice that he had not done so when he looked at it.

The result of our views is that the court did not err in refusing to declare as a matter of law that appellee had assumed the risk. The judgment will therefore be affirmed.


text:
    Nichols v. State.
    Opinion delivered October 18, 1926.
    1. Intoxicating liquors — sale in building — injunction.—Under Crawford & Moses’ Dig., § 6196, declaring engaging in the sale of intoxicating liquors in a building to be a nuisance, a.nd .§ 6201, providing that such nuisance may be enjoined, held that the circuit court has jurisdiction to restrain the sale of intoxicating liquor in defendant’s home and to punish disobedience of such order.
    2. Intoxicating liquors — sufficiency of information. — Where an information for contempt, under Crawford & Moses’ Dig., § 6202, is filed by the prosecuting attorney, his official oath is a sufficient verification.
    3. , Intoxicating liquors — contempt citation. — An order of the circuit court for the issuance of a citation for contempt as authorized hy Crawford & Moses’ Dig., § 6202, at the instance of ’the • prosecuting attorney, reciting acts in violation of an injunction ■' against engaging in the sale of liquors in defendant’s home,-held a substantial equivalent of filing an information.
    4. Criminal law — irregularity in process — waiver by appearance. — Any irregularities in the issuance of process , are waived-by defendant’s appearance in response to a citation for contempt in violating an injunction against the sale of intoxicating liquors issued under Crawford & Moses’ Digest, § 6202.
    5. Criminal law — time to make defense — waiver.—Where defendant, accused of violating an order restraining her from selling liquors at 'her home, voluntarily entered her appearance and denied the facts alleged in the citation for contempt, without asking for further time to prepare her defense, she will be held to . have waived her right to further time.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.

      BerryM. 'Randolph, for appellant.

      H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Hart, J.

Lillie Nichols filed a petition for a- writ of certiorari in this court to quash, a judgment of contempt against her in the circuit court.

The record shows that, on the 14th day of April, 1926, the circuit court, on the relation of the prosecuting attorney, found that a building occupied by Lillie Nichols was a public nuisance. The record recites that the State was represented by the prosecuting attorney, and that the defendant appeared in person and by attorney, and that the court found, upon the oral evidence introduced, that the place occupied by the defendant was a public nuisance and that said nuisance should be abated. It was adjudged that the defendant be restrained from further using said premises for the purpose of selling liquor or for storing liquor therein.

On the 8th day of July, 1926, the circuit court entered of record an order directing the circuit clerk to issue a citation to the defendant to appear'in court on July 12, 1926, to show cause why she should not be punished for contempt. The record recites that the prosecuting attorney asked for the citation for contempt against the defendant because she had refused to comply with the order of the court enjoining her from further engaging in the sale of liquor or for storing liquor in a certain-building occupied by her as a dwelling-house and store on the Mount Ida-Hot Springs Highway, in Garland County, Arkansas.

An order of the circuit court of July 17,1926, recites that the State of Arkansas appeared by the prosecuting' attorney, and the defendant in her own proper person, and the court proceeded to hear the testimony of-witnesses on the citation for contempt. The order further recites that the case is continued for further testimony.

On the 13th day of August, 1926, the prosecuting attorney caused to be filed by the circuit clerk, in the- case of State of Arkansas v. Lillie Nichols, in the Garland Circuit Court, the following:

“Notice of Citation for Contempt. You are hereby-notified that the undersigned, as prosecuting attorney of the 18th Judicial District, will on this day present: evidence to the Garland Circuit Court showing a violation of the permanent injunction heretofore granted against the place now occupied by you,' and against yourself, showing that you have violated the liquor law of this State, and therefore are in contempt of said court. You are notified to be present and show cause, if any, why you should not be punished in accordance with the laws for such contempt. ¥m, G. Bouic, Pros. Atty.”

The return of the sheriff shows that the citation was served on the 13th day of August, 1926, -by bringing Lillie Nichols before the circuit court of Garland County. On the same day the circuit court, in the case of the State of Arkansas v. Lillie Nichols, entered of record the following order or judgment: ‘ ‘ On this day is presented to the court the citation of the prosecuting attorney of the 18th Judicial District, charging the defendant with being guilty of contempt of court for having violated an injunction issued against the defendant heretofore on the 14th day of April, 1926, wherein the defendant was enjoined from the further engaging in the sales of intoxicating liquors on the premises where she resides, in Garland County, Arkansas; and comes the defendant in • proper person and enters’ her denial to the facts alleged in said citation; thereupon the court proceeds to hear the testimony of witnesses on behalf of the State and defendant, and, after the conclusion thereof and due consideration of same, the court finds as follows: That heretofore, on the 14th day of April, 1926, the premises now occupied by the defendant was declared to be a nuisance, and the defendant was then perpetually enjoined from further engaging in the sales of intoxicating liquors, and that, since said order was issued, the defendant has violated said judgment of the court, and has- been engaging in the sales of intoxicating liquors on said premises; and it is thereupon by the court considered, ordered and adjudged that the defendant is in contempt of court; and it is further by the court considered, ordered and adjudged that the punishment of the defendant be fixed at confinement for a period of six months in the county jail of Garland County, to which she is committed.”

At the outset, in the discussion of the principles of law involved, it may be stated that the circuit court had jurisdiction to grant the restraining order of April 14, ■ 1926, referred to above, and to adjudge the defendant guilty of contempt for disobedience of the order.

Under § 6196 of Crawford & Moses’ Digest, the carrying on or engaging in the illegal sale of intoxicating liquors in any building is declared to be a public nuisance, which may be abated.

Section 6197 confers jurisdiction upon the circuit court, upon the relation of the Attorney General or prosecuting attorney, to abate such nuisance.

Section 6201 provides that if, upon the trial of a case under the act, .the existence of the nuisance be establisted, the judgment of the court shall perpetually enjoin the defendant from conducting, continuing or maintaining such nuisance.

Section 6202 provides that, if any person shall violate any permanent injunction under the provisions of the-act, he shall be subject to punishment for contempt, and upon conviction shall be imprisoned in the county jail for not less than thirty days nor more than six months, and may also be fined in any sum not exceeding $50. x

In Hickey v. State, 123 Ark. 180, 184 S. W. 459, it was held that a defendant may be restrained from maintaining a public nuisance in violation of the provisions of the act. In Adams v. State, 153 Ark. 202, 240 S. W. 5, it was held that the circuit court had jurisdiction, under the act, to restrain a person from selling intoxicating liquors in his home, and that disobedience to the order subjected the guilty party to proceedings for contempt and punishment thereunder. It follows that the circuit court had jurisdiction of the subject-matter and the authority to make the particular order or judgment now complained of, upon obtaining jurisdiction of the person of the defendant.

It will be noted that, under the provisions of the statute above cited, proceedings for contempt, in cases, of this sort, are criminal in their nature, and the prosecuting attorney is one of the officers who may conduct proceedings for the State under the act. The contempt complained of was not committed in the presence of the court, and, under the ancient rule of reason and natural justice, the offending party should be proceeded against upon the affidavit of some one with knowledge of the facts, or upon information of the prosecuting attorney who instituted the proceedings for the State in the first place. Where information is filed by the prosecuting attorney, his official oath is sufficient, and no further verification is necessary. Poindexter v. State, 109 Ark. 179, 159 S. W. 197.

Other cases holding that a formal presentation by a sworn prosecuting officer is a sufficient verification to justify judicial action are the following: Hurley v. Commonwealth, 188 Mass. 443, 74 N. E. 677, 3 Am. Cas. 757; Welch v. Barber, 52 Conn. 147; Ex parte Wright, 65 Ind. 504; and State v. Ackerson, 25 N. J. L. 209.

But it is contended that no written information was filed by the prosecuting attorney upon which to base a citation for contempt. On July. 8, 1926, an order was spread upon the records of the circuit court, in a case styled. State of Arkansas v. Lillie Nichols, in which the circuit clerk was directed to issue a citation to the defendant commanding her to appear on July 12, 1926, to show cause why she should not be punished for contempt of court in failing and refusing to comply with the previous orders of the court. •

■ This record recites that the citation is asked by the State of Arkansas upon the relation of the prosecuting attorney, and is directed to Mrs. Lillie Nichols, to show cause why she. should not be punished for refusing .to comply with the former order of the court restraining her- from further engaging in sales of liquor or using her premises for. the purpose of selling liquor or storing it.

The .building occupied by the defendant is described as a dwelling-house and a store building, located on the Mount Ida-Hot Springs Highway, in G-arland County, Arkansas.

. Thus we see that the acts done, which are charged to constitute the contempt, are that Lillie Nichols violated a permanent order , of the court restraining her from, using her house in the illegal sale of intoxicating liquors. The acts constituting the contempt complained .of were spread upon the record of the circuit court at the instance of and in the name of the prosecuting attorney, acting in his official capacity. The defendant was brought before the court and given an opportunity to defend herself. The spreading upon the record of the circuit court the acts charged to have constituted a violation of the order of injunction at the instance of and in the name of the prosecuting attorney, amounted substantially to the filing of an information by him. The appearance of the defendant waived any irregularities in the issuance of the process. Ex parte Ah Men, 77 Cal. 198, 19 Pac. 380; State v. Walker, 78. Kan. 680, 97 Pac. 862; Silvers v. Traverse, (Iowa), 47 N. W. 888; Jordan v. Wapello Co., 69 Iowa 177, 28 N. W. 548; and Sona v. Aluminum Castings Co., 214 Fed. 936, and cases cited.

Testimony was heard, and the, case was continued for further testimony.. No definite date was set..for .the - resumption of the hearing, and, if it be considered that the court lost jurisdiction of that particular proceeding-upon that account, still jurisdiction was.again obtained by what is called a notice of citation for contempt, filed on August 13, 1926, with the circuit clerk. This, paper was signed by the prosecuting attorney, and is set out, in our statement of facts. .

In specific terms it notified the defendant that she had violated the provisions of the permanent injunction by offending against the liquor laws of the State. The defendant was actually taken before the circuit court and given an opportunity to defend herself. '

Under these circumstances, if the facts are as represented, they show an irregularity merely in the obtaining • of jurisdiction, and do not show such a want of jurisdiction as to warrant the discharge of the defendant. She was entitled to .a reasonable time within which to prepate her defense, but the record does not. show that she asked for further time. On the contrary, it affirmatively show.s that she voluntarily entered her appearance and entered ■ her denial of the facts alleged in the citation. This constituted a waiver of her right-to further-time within which to make'her defense. Poindexter v. State, 109 Ark. 179, 159 S. W. 197.

As we have already seen, the court had jurisdiction to enjoin her from selling intoxicating liquors in .her home in the-first instance, and obedience to. the injunction order was imperative upon her so long- as it. remained in force. Upon the complaint of the prosecuting attorney of a violation of the order of injunction by the defends ant, she. was brought into court, and entered her denial of the facts alleged against her. The record affirmatively shows these facts, and that the court found her guilty, upon evidence introduced, of a violation of the injunction.

Under this state of the record, the’ defendant must be deemed to have consented to the trial and to have waived her right to further time in which to have prepared her defense. People v. Court of Sessions, 147 N. Y., 41 N. E. 700; Ex parte Canavan, 17 N. M. 290, 130 Pac. 248; McCulloch v. State, 174 Ind. 525, 92 N. E. 543; In re McHugh, 152 Mich. 505, 116 N. W. 459; In re Odum, 133 N. C. 250, 45 S. E. 569; and 13 C. J., p. 65, § 89.

It follows that the judgment of the circuit court was correct: Therefore the writ of certiorari will be quashed, and the judgment of the circuit court will be affirmed.


author: 'Smith, J.

text:
    First National Bank of Minneapolis v. Malvern.
    Opinion delivered October 18, 1926.
    1. Sales — breach of warranty. — In*an action on notes given for a tractor, in which there was evidence tending to ‘ establish the defense of a breach of warranty, it was not error to refuse to instruct the jury .to find for plaintiff for the full amount of the notes, instead of allowing credit for any damages caused by such breach of warranty.
    2. Evidence — admissibility of parol evidence. — In an action on notes given for a tractor, in which plaintiff contended that the letter of acceptance showed either that it conformed to the warranty- or that the warranty was waived, representations of the ■ seller’s agent that the tractor would, do the work after it limbered up was admissible to show the circumstances under which the letter was written and that the warranty was not waived.
    3. Sales — remedies of buyer. — The buyer of a tractor which did not conform to the warranty could retain it, and, when sued for the balance of the purchase money, recoup the damages resulting from the breach of warranty.
    4. Appeal and error — conclusiveness of verdict. — A verdict will not be disturbed on appeal because it allows excessive interest if the evidence supports the verdict, and a finding on conflicting evidence as to the amount of damages is conclusive if the sum found does not exceed the highest awar'd supported by testimony.
    5. Appeal and error — excessive judgment — reduction of amount. —in an action on notes given for a tractor, where recoupment allowed for breach of warranty was for an excessive amount, damages will be reduced and judgment rendered accordingly;
    Appeal from Hot Spring Circuit Court; Thomas É. Toler, Judge;
    reversed.

      Coleman & Riddick and Frank E. Chowning, for appellant.

      John L. McClellan, for appellee.
   'Smith, J.

Appellant brought suit against the city of Malvern upon three notes executed by the city in favor of Kinnard & Sons Manufacturing Company, hereinafter referred to as the company. The notes represented a part of the purchase price of a tractor purchased by‘the city from the company. At the trial a verdict arid judgment were rendered in favor' of the city, from which the ' plaintiff bank has appealed.

The tractor was purchased by the city under what was called a “demonstration order,” under which the tractor was to be tested and tried to ascertain if it met the warranty under which it had been sold. This war- . ranty was in writing, and was to the effect that the company warranted that the tractor was made of good material, and, when in good order and properly operated, would do the work for which it was reasonably intended, the work being “to operate successfully a Bussell Standard grader and scarifier on the streets of the city of Malvern.” The company also agreed to replace, free of charge f. o. b. factory, any parts which might be broken in regular and practical use by reason of defective material or workmanship, within a period of ,one year from date of purchase.

The scarifier was used to loosen and tear up the surface of the streets, preparatory to regrading and repairing them, and the Bussell scarifier had nine prongs or teeth for this, purpose.

The tractor was delivered, and a demonstration test was .made by one . Reeder, agent of the company, in the presence of a committee of the city council and the city’s street commissioner. ■ -The- tractor would not pull the scarifier until six of its nine teeth had been removed, but the agent stated that it would pull the scarifier with all of the teeth in place when the tractor was limbered up.

Thereupon the city paid the sum of $500 cash to the company and executed the three notes sued on; two of them being for $425 each and the third for $400. The . street, committee of ,the city council and the street commissioner also executed a certificate to the effect that the tractor had been tried, found satisfactory,' and accepted by the city., This certificate was dated March . 18, 1920, the day the test was' made.

The undisputed, testimony shows that the tractor would not. at any time pull the scarifier unless most of the teeth were removed, and the' removal of the teeth destroyed largely the efficiency of the scarifier. The testi- . mony also showed that,'when the scarifier was operated with only three teeth, there was constant trouble with the tractor, and frequent repairs were required.

The city. def énded upon the ground that the warranty under which the tract or had been sold was breached, and it sought to recoup damages for' this breach, which, it alleged, were greater than the balance' of the unpaid purchase money.

' The first assignment óf error is that the court erred in refusing to give instruction numbered: 1, requested by the plaintiff, which, if given; would have directed the jury to fin'd, for the plaintiff the full value of the notes sued on.

No error was' committed in' refusing to give this instruction. Under the issues joined, the plaintiff would have been entitled to an instruction- telling the jury to find for the plaintiff for the amount of the notes, less the credit, if' any, allowed as damages; but the instruction requested did not do this, and, as no correct instruction was asked on the right of the plaintiff to recover the amount of the notes, less the damages, appellant is in no position to complain of the refusal of the court to give-its instruction numbered 1. ■

It is insisted that error was committed in permitting the city to prove the representations made by the company’s agent that the tractor would do the work after it had been limbered up, inasmuch as there was an express written warranty which could not be enlarged by parol testimony.

Under the issues joined we think this testimony was not incompetent. The plaintiff contended that the written letter of acceptance of the tractor, after it had been tested, showed either that the tractor conformed to' the warranty or that the warranty was expressly waived. The testimony was competent therefore to show the.circumstances under which and the purpose for which .the letter of acceptance was written. This testimony does not engraft an additional-warranty upon the contract of sale. It merely shows that the warranty was not waived.

The case was tried upon the theory that, while the city might have repudiated the purchase of the tractor upon ascertaining that it did not conform to the warranty under which it was sold, it had the right to retain the tractor and, when sued for the balance of purchase money, to recoup against this demand the damages resulting from the breach of warranty. This -is the law, and we think the instructions given só declared the-law, although one or more of the instructions were not as clear as they might have been, but no specific objections were made. Parrett Tractor Co. v. Brownfiel, 149 Ark. 566, 233 S. W. 706.

"We are of the opinion that the question of damages was fairly and properly submitted to-the jury, and that no’error was committed in the admission of testimony, and we would therefore affirm the judgment, were we not also convinced that the verdict of the jury all owed-damages in an excessive amount. •

It will appear from what we have said that' the suit was, in effect, one for damages for breach^ of warranty, as the liability of the city is undisputed, and it sought to discharge that liability by recouping damages. The verdict of the jury was for the city, thus indicating that the damages were assessed in a sum equal to the unpaid purchase money.

The testimony shows that three persons used the tractor, these being A. I. Posey, Keith Rutherford, and F. B. Medford, the latter being the street commissioner at the time the tractor was purchased, and the person who had made the largest use of it. The undisputed testimony shows that the tractor would not pull the scarifier as warranted, and that, even when the scarifier was used with less than the full number of teeth, it was still unsatisfactory, and that considerable expense was entailed in attempting to use the tractor in dragging the scarifier at all, but no complaint appears to have been made to the company of this fact, although it was shown that complaint was made on two occasions to Reeder, the salesman who demonstrated the tractor, the last being after Reeder had severed his connection with the company.

But, while the testimony shows an unsatisfactory use of the tractor in connection with the scarifier, and that it did not otherwise comply with the warranty, it is also shown by the testimony that the city made large use' of the tractor in connection with the grader, and that it' had substantial value.

The deposition of Medford, who had ceased to be street commissioner and had removed from the city, was taken and offered in evidence by the city. In this deposition Medford found many faults with the tractor, especially when used in connection with the scarifier, but he admitted writing a letter to the company on December 8, 1921, which was more than a year and a half after the tractor had been delivered, in which he ordered certain new parts, and, in identifying the tractor so that the order might be properly filled, he stated: “We have one of your Flour City tractors of the smaller type, with which we have been, able to do a wonderful lot of street work,” and lie admitted in his deposition that this statement was true when the tractor was used for light work.

Posey admitted that the tractor would handle the scarifier reasonably well with three teeth,- but, even then, they had trouble with it when used for that purpose, and that he was able to make as much use of the tractor as he did only because he was himself a good mechanic and was constantly adjusting and repairing it, and that, had he not been a mechanic, it would have been necessary to have carried a mechanic along to use the tractor at all.

The witness Rutherford was asked what the tractor was worth compared with what it would have been worth if it had done the work that the contract of sale guaranteed that it would do, and he answered, not over a third. If, however, we take the answer of this witness as the basis on which the jury computed the damages, the fact remains that excessive damages were allowed. The purchase price of the tractor was $1,750, and the city had paid ■ only $500, so that, if the city were allowed to recoup as damages two-thirds of the purchase price, the company would still have been entitled to a judgment of one-third of the purchase price, which it $83.33 more than the sum "which the city had paid.

A verdict will not be disturbed on appeal upon the ground that excessive damages were allowed if there was evidence to support the verdict (St. L. I. M. & S. R. Co. v. Spann, 57 Ark. 127, 20 S. W. 914), and a finding upon contradictory evidence as to the amount of damages is conclusive on appeal, provided the sum found as damages does not exceed the highest award supported by any of the testimony. Glasscock v. National Box Co., 104 Ark. 154, 148 S. W. 248; St. L. Sw. Ry. Co. v. Overton, 114 Ark. 98, 169 S. W. 364.

We think, wjien the testimony is viewed in the light most favorable to appellee, there was no testimony supporting a larger award of damages than does the testimony of Rutherford, and therefore damages could not be allowed in a sum exceeding the amount shown by his testimony.

This appears to he the only error in the record, and it may be cured by reducing the damages to a sum not greater than that sustained by Rutherford’s testimony, and this .error will be cured by such reduction, and the company will therefore be awarded judgment here for $83.33. Collier Commission Co. v. Wright, 165 Ark. 338, 264 S. W. 942; Kansas City Southern Ry. Co. v. Leinen, 144 Ark. 454, 223 S. W. 1.


author: Smith, J.

text:
    Carden v. Montgomery.
    Opinion delivered October 18, 1926.
    1. Adverse possession — sufficiency of evidence. — Undisputed testimony that plaintiff suing in ejectment had been in continuous possession of land for more than seven years before suit warranted a directed verdict in his favor, if the description of the land in the complaint was sufficient to identify it.
    2. Ejectment — description of land in judgment. — A description of the land in ejectment which would be good in a deed is sufficient also in a judgment in ejectment.
    3. Ejectment — sufficiency of description of land. — The test of the sufficiency of description of land in a complaint and judgment in ejectment is whether, by aid of the description given, the land can be located.
    4. Ejectment — description of land — evidence.—Where a judgment in ejectment located the land recovered by the plaintiff by means of a fence and road, proof of their location at the time the judgment was rendered is admissible if they have been subsequently removed or changed.
    5. Appeal and error — consolidation of causes. — In absence of objection, separate causes of action in a complaint’in ejectment and- for damages to adjoining land resulting from deprivation of property are treated as consolidated and tried by consent in a single suit.
    6. New trial — NEWLY-DiscoyERED evidence. — jA. motion for new trial for newly-discovéred evidence was properly denied where the evidence was merely cumulative and no explanation is given as to- why the evidence was not produced at the trial.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Norwood & Alley, for appellant.

      Pipkin & Frederick, for appellee.
   Smith, J.

Appellee 'brought suit in' ejectment against appellant to recover possession of a certain tract of land, about an acre in area, which was described in the complaint as follows: “All that part of the' southeast quarter southeast quarter of section 30, in township 1 south, range 29 west, lying south of the public road known as the Waldron and Cherry Hill road and west of the first fence east of the west line of the said southeast quarter southeast quarter, running in a southerly direction from said road, and containing about one acre.”

It was alleged in the complaint that appellee went into the possession of the land in 1912, and occupied the dwelling-house thereon and the ground inclosed therewith under fence, and that he thereafter remained continuously in possession of the house and inclosed land until about December 15, 1924, a period of more than seven years, when appellant ordered appellee’s tenant, who was in possession, to vacate the house, and wrongfully took possession _ thereof. The complaint also alleged that appellee owned adjoining land, on which there was-no house for the use of a tenant, and appellee was unable, through the loss of the use of the house, to rent this adjoining land, and he prayed judgment for the recovery of the house and land and damages for the use thereof, and also for damages for loss of rent on the adjoining land resulting from the loss of the use of the house, which was necessary to renting this adjoining land.

The answer filed by appellant did not question the sufficiency of the description of the land contained in the complaint, but denied that appellee was entitled to recover the land, and alleged title in himself.

There was a verdict in appellee’s favor for the recovery of the land, and damages were assessed at $50, and judgment was rendered accordingly.

The trial occurred on the 23d of April, 1925, and a motion for a new trial was filed and overruled on the 22d of May, 1925.

In the motion for a new trial filed by appellant he assigned as error the action of the court in directing the jury to find for the plaintiff for the possession of the land and in giving an instruction which authorized the jury to consider the damages to the adjoining land.

Another error assigned in the motion for a new trial was that, after the rendition of the verdict and judgment, appellant had learned that one -S. C. Harrison is a material witness, who could and would be produced if a new trial were granted. Attached to this motion was the affidavit of Harrison, which was to the effect that appellee knew the house did not belong to him, and that appellee did not claim to. own it. This affidavit was made July 10, 1925, which was some time after the rendition of the judgment. ; c ¡¡

The testimony appears to be undisputed that appellee had, for a period of more than seven years before the institution of the suit, been continuously in possession of the land in controversy, and there was therefore- no error in the -court directing the jury to return a verdict in his favor for .the possession of the land, provided there was a description of the land sufficiently definite to make certain the land which had been occupied and sued for.

The chief insistence for the reversal of the judgment is that the description employed in the complaint and in the judgment is too indefinite to identify it.

A description, which would be good in a deed would also be sufficient if employed in a judgment, and in the case of Tolle v. Curley, 159 Ark. 175, 251 S. W. 357, it was said that the rule is that a deed is not void for uncertainty of description if the land can be located from the -description in the deed.

In the case of Russell v. Webb, 96 Ark. 190, 131 S. W. 456, which was a suit in ejectment to recover a small triangular tract of land, it was insisted that the verdict and the judgment pronounced thereon were void because the land, recovered was not properly described. •

The sufficiency of the description depended on the definiteness and certainty of a line run by a surveyor named Hale, the survey being evidenced by certain rocks, stakes and marks which noted and identified the location of the line as surveyed. It was there said that “the description is sufficient where it is reasonably certain, or where it can be made certain, so that the land can be identified. This certainty may be established by reference to. monuments upon the ground, or to some recorded map, or by some well-known and understood manner of location.” ■ •

The question of the sufficiency of the description was again considered in that case on a petition for rehearing, and it was insisted, in support of that motion, that the evidence of the survey might at any time be destroyed and the description thereby rendered uncertain. The court said that the markings made by the surveyor on the ground might be removed, but, if so, the line as surveyed might be reestablished. It was said that if, upon issuing a writ of possession in favor of the prevailing party, it was insisted that more or different land from that described in the judgment was taken, the court could hear testimony as to the true location of the line that was established by the surveyor, and that, if the officer executing the writ had taken possession of more land than was specifically recovered, the court would order its restitution.

The defect complained of in the description employed in the instant case is that it is not shown where the fence, which forms a part of the boundary after leaving the Waldron and Cherry Hill road, ran, it being recited only that this line (the fence) runs in a southerly direction from said road. It would have been a more accurate description to have fixed the terminus of the fence after leaving the road, but the test is not whether the best or most satisfactory description was employed. It is sufficient if, with the aid of the description employed, the land can be located. The length of the fence and its terminus after leaving the road are not shown, but, in connection with the other descriptions which are employed, the fence incloses the land. The land is a part of the southeast quarter southeast quarter of section 30, township 1 south, range 29 west, and is all that part of that forty-acre tract of land west of the first fence east of the west line of that forty and south of the Waldron and Cherry Hill public road. The lines of the forty-acre tract are certain, or can be made so, and the road and fence are both on the forty acres. If this fence has been or •may be removed or destroyed, or the location of the road changed, then proof could be heard, if necessary, as was said in the case of Russell v. Webb, supra, to establish their location as they were when the judgment was rendered.

The land recovered was the land inclosed by the .fence,-and, when the location of the fence is made certain, the identity of. the land is also made certain. In other words, it is not the character of the monuments which mark the boundaries of a tract of land which determines the sufficiency of the description, but is rather whether or not, by the aid of the description given, the land may be definitely located.

In this connectionit may be said that present counsel representing .appellant did not appear for him in the trial below, and it does not appear that it was thought, at the trial, that the description was so indefinite as to be void, inasmuch as no motion was made to make it more specific. . .

It is also insisted that the court was in error in admitting testimony to show that the rental value of land adjoining the acre sued for was affected by the deprivation of appellee of the house which hadbeen used by appellee’s tenants in cultivating this adjoining^ land, it being insisted that such damages could not be recovered in an ejectment suit brought to recover a specific tract of land.

' It may be again said that no such question was raised until the motion for a new trial was filed. Had a separate suit for the damages to the adjoining land been brought, it might, by consent, have been consolidated and tried with the ejectment suit, and, in the absence of any objection to the form of action brought, we must treat the two causes of action, if such they are, as having been consolidated and tried by consent as a single suit.

■ It is finally insisted that the court erred in refusing,. to grant a new trial on account of the newly discovered., evidence of Harrison. In answer to • this insistence, it. may be said that the- affidavit was not filed until after the rendition of the judgment. The. affidavit filed was made . by Harrison, and not by appellant, and it recites merely; what Harrison’s testimony would have been, had he testified. Appellant himself did not make an. affidavit explaining his failure to. have the "affiant present at the. trial. . Moreover, the testimony was cumulative of other testimony, pffered at the trial to the effect'that appellee had not acquired title by adverse possession of the land in. controversy.

No error appearing, the judgment, is affirmed.