author: Humphkeys, J.

text:
    Younger v. State.
    Opinion delivered October 29, 1923.
    1. Prostitution — indictment — election between counts. — An indictment for pandering contained two counts, charging the commission of the offense in the two modes mentioned in Crawford & Moses’ Dig., § 2707, the second count alleging that it charged the same offense in different form. Held to charge a single offense, and a motion to require the State to elect was properly refused.
    2. Prostitution — when pandering committed. — While transporting a girl for a single act of illicit sexual intercourse does not constitute the crime of transporting for prostitution within the meaning of Crawford & Moses’ Dig., § 2707, the transportation of girls for the avowed purpose of indiscriminate lewdness does constitute the offense.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Ward & Caudle, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Wm. T. Hammoch and Darken Moose, Assistants, for appellee.
   Humphkeys, J.

Appellant was indicted, tried and convicted in the circuit court of Pope County for the crime of pandering, and was adjudged to serve a term of two years in the State Penitentiary as punishment therefor. From the judgment of conviction an appeal has been duly prosecuted to this court.

The indictment on which he was convicted, omitting the formal parts, is as follows:

“The said Albert Younger, in the county and State aforesaid, on the 2d day of November, 1922, did wilfully, unlawfully, and feloniously transport and cause to be transported and aid and assist in obtaining transportation through and across this State, one Yesta 'Coleman, an unmarried female person, for the wilful, unlawful and felonious purpose of prostitution, against the peace and dignity of the State of Arkansas.

“Count 2.

“And the grand jury aforesaid, in the name and by the authority aforesaid, by way of charging the commission of the same offense in different form, further charge the said Albert Younger of the crime of pandering, as follows, to-wit:

“The said Albert Younger, in the county and State and .at the time aforesaid, did wilfully, unlawfully, felo-niously and knowingly transport and cause to be transported by means of a certain conveyance, through and across this State, one Yesta Coleman, an unmarried female person, with the wilful, unlawful and felonious intent and purpose to induce, entice and compel her, the said Vesta Coleman, to become a prostitute, against the' peace -and dignity of the State of Arkansas.”

In apt timé appellant filed a motion to require the prosecuting attorney to elect upon which count of the indictment he would rely. The motion was overruled, to which ruling an objection was made and an exception saved. Reversible error was not committed in overruling the motion. This court has recently ruled that “pandering is but one offense, under the statute, and may be committed in different modes therein enumerated.” Southwich v. State, 126 Ark. 188. The indictment charged the offense as having been committed in either of the two modes mentioned in §2707 of Crawford & Moses’ Digest, which is as follows:

“Any person who shall knowingly transport or canse to be transported or aid or assist in obtaining transportation for, by any means of conveyance into, tbrongb or across this State, any female person for the purpose of prostitution or with the intent and purpose to induce, entice, or compel such female person to become a prostitute, shall be deemed guilty of a felony, and upon conviction thereof be sentenced to the penitentiary for not less than two or more than ten years; any person who may commit this crime in this section mentioned may be prosecuted, indicted, tried and convicted in any county or city in or through which he shall so transport or attempt to transport any female person as aforesaid.” '

Another contention made by appellant for reversal is that the facts are insufficient to support the judgment. It is argued that, because appellant indulged in a single act of illicit sexual intercourse with Yesta Coleman, the prosecuting witness, when he transported her from Atkins into the woods, it did not constitute “prostitution” within the meaning of that word as used in said statute. The word “prostitution” as used in the statute has been defined by this court in the following language: “There seems to be no contrariety of opinion whatever in the definition of this word, and we must assume that the Legislature used it in its ordinary sense as meaning a woman given to indiscriminate lewdness, and that the word ‘prostitution’ meant a state of existence for that purpose, and does not include merely the act of a woman occupying the relation of concubinage with one man.” It is true that appellant and Yesta Coleman indulged in only one act of illicit intercourse on the trip in question, but the undisputed evidence showed that he was transporting her and a girl friend of hers from Atkins, Arkansas, to Oklahoma. City, Oklahoma, for the purpose of indiscriminate lewdness.

Vesta Coleman and Alma Thompson, one eighteen and the other sixteen years of age, who had been absent from their respective homes for several days, met appellant in a restaurant in Atkins. He informed them that their fathers were hunting them. He thereupon took them in his car from Atkins toward Perry, and, while en route, told them he was taking them to Oklahoma City, where they were to live in a tent and make money for him by associating with other men. They made no objection. They stopped at Perry for a time, and while there became acquainted with Jim Butler. They all got into Butler’s car and drove out of town into the woods. While in the woods, Butler and Alma absented themselves. During the time of their absence appellant and Vesta indulged in an act of intercourse. When Butler and Alma returned, the men left the girls in the woods, with the understanding that they would return for them later. For some reason they did not do so, and the girls went to a farmer’s home and stayed all night. The next .morning they met Jim Butler and Lee Weaver, who took them back to Morrilton. They later returned to their homes.

While the single act of illicit sexual intercourse did not constitute the crime of pandering within the meaning of the statute referred to, the transportation of these girls for the avowed purpose of indiscriminate lewdness constituted the crime of pandering within the meaning of said section of the statute.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Brown v. Halliday.
    Opinion delivered October 29, 1923.
    1. Trial — direction of verdict. — It is error to direct a verdict for defendant where there is substantial evidence warranting a verdict for the plaintiff.
    2. Bills and notes — secret agreements. — Where a tenant on plaintiff’s plantation in another State was indebted to plaintiff, and, desiring to move to this State to work on defendants’ plantation, induced defendants to execute a draft payable to plaintiff for the amount of such indebtedness, in consideration of which plaintiff permitted the tenant to remove her property from his plantation, the fact that the tenant’s property was attached in the other State 'by other creditors, and that she was thereby prevented from executing a mortgage thereon to defendants as agreed, constituted no defense to the draft, as negotiable paper cannot be burdened with secret agreements between the maker and the party to whom he intrusts it.
    Appeal from Chicot Circuit Court; Turner Butter, Judge;
    reversed.

      W. W. Grubbs, for appellant.
    The contract was complete when appellant accepted the draft with the notation on it that it was “for Laura Jones’ account to date,” and issues his receipt for the account. 13 C. J. 265. It is not necessary that an offer or acceptance be in any particular form. 95 Ark. 421. What the parties to a contract do is evidence of what they understood the contract to mean. 104 Ark. 466. When there is an expressed 'contract of sale, the terms of the contract g’overn, and nothing is. implied. 82 S. W. (Ark.) 1128. The draft with its notation became the basis of the contract, and, being written by appellee, should be construed most strongly against him. 112 Ark. 1; 171 S. W. (Ark.) 136. It contained no mention of any additional condition, subject to which the payment was made, and appellee is estopped to deny liabil- - ity. 91 Ark. 141. As between two innocent parties, the loss must fall upon that one whose act contributed most to produce it. 227 S. W. (Ark.) 423. It was error to instruct a verdict. The matter should have been left to the jury. 105 Ark. 526.

      B. F. Merritt, for appellee.
   Humphreys, J.

This suit was instituted by appellant against appellees in the Chicot Circuit Court to recover $206 upon a draft drawn by W. H. Carpenter on his co-appellees, who lived at Cairo, Illinois, in favor of appellant.

Appellees interposed the defense that the consideration for the draft failed before it was presented for payment to Carpenter’s co-appellees.

The cause was submitted upon the pleadings and proof, which resulted in an instructed verdict in favor of appellees, over the objection and exception of appellant. A judg'ment was rendered pursuant to the verdict, from which is this appeal.

The record reflects that Laura Jones, negro tenant, who resided on appellant’s plantation in Louisiana in 1921, concluded to move with her family and personal property to Yellow Bayou Plantation, in Chicot County, Arkansas, which was managed by W. H. Carpenter for his co-appellees, for the purpose of making a crop in 1922. She was indebted to appellant in the sum of $206, which amount she was unable to pay. She obtained a written statement of her account from appellant, and took it to W. EE. Carpenter to see whether he would advance her the money to pay it. He ascertained that she owned certain work stock which was being detained by appellant until Laura should pay her account. As a result of the interview, it was agreed that Laura should remove to. the Yellow Bayou Plantation, bringing her stock and other effects, and raise a crop during the year 1922. In order to accomplish this purpose Laura executed a note to Carpenter for $206, and a mortgage was prepared for her to execute when she came back with the "work stock, whereupon Carpenter drew a sight draft upon his co-appellees for said sum, payable to appellant. It recited on its face that it was in payment for Laura Jones’ account to date. It was made payable to appellant’s order, because Carpenter was afraid Laura might use the money for some other purpose. Carpenter and appellant never talked to each other about the matter. The draft was drawn through the Chicot Bank & Trust Company of Lake Village, Arkansas, and was negotiable. Laura delivered the draft to appellant, obtained a receipt in full from him for her account, and moved her property to Milliken, Louisiana. Appellant cashed the draft a short time after receiving same. The property was after- . wards attached by another creditor, and, when the draft was presented to Carpenter’s co-appellees, payment was refused on the ground that the consideration therefor had failed.

The only question arising on this appeal for determination is whether the court erred in instructing a verdict in favor of appellees and adjudging the costs of the suit against appellant. It is error to instruct a verdict for a defendant where there is any substantial evidence warranting a verdict for the plaintiff. Wilson v. St. L. & S. F. R. Co., 103 Ark. 401, and cases cited to the point on page 404. Under the undisputed evidence in the case appellant should have recovered upon the draft. In order to procure Laura and her household as tenants, Carpenter issued a sight draft, payable to appellant’s order, for the purpose of liquidating the indebtedness of Laura Jones, enabling her to remove her property from appellant’s plantation to the one he was managing. Appellant accepted the draft, issued Laura a receipt for her account, and permitted her to remove the property off his plantation. The property was then attached by another creditor on the ground that she was about to move it out of the State. Appellant was not informed that the consideration for the draft was an agreement for the execution of a mortgage on the stock when moved to Arkansas. That agreement was between Carpenter and Laura, and, being a secret agreement, could in nowise bind appellant. Negotiable paper cannot be burdened with secret agreements between the maker and parties to whom he intrusts it. When negotiated, such paper is binding on the maker.

On account of the error indicated the judgment is reversed, and a judgment is directed to be entered here for appellant upon the draft, together with interest thereon at the lawful rate.


text:
    Biston Coffee Company v. Cazort & Company.
    Opinion delivered October 22, 1923.
    1. Principal and agent — scope op authority op traveling salesman. — One who deals with a traveling salesman of a wholesale house, in absence of notice to the contrary, has an unqualified authority to act for the firm which he represents in all matters that come within the scope of his employment.
    2. Principal and agent — scope op authority — jury question.— Whether it was within the apparent scope of the authority of a traveling- salesman to direct a customer to return certain goods to his principal, held a jury question.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      1. J. Friedman and Wofford •& ArbucTde, for appellant.
    One dealing with an agent is bound to ascertain tbe extent of bis authority. 105 Ark. 111. A commercial salesman has no authority except that of soliciting orders for the sale of goods. 101 Ark. 68.
    The court erred in admitting the testimony of W. F. Brigance and C. C. Jeffers. 235 S. W. 39.

      Chew & Ford, for appellee.
    A principal is not only .bound by the acts of his agent under express authority, but he is also bound by all acts of a general agent which are within the apparent scope of his auhtority. 103 Ark. 79; 96 Ark. 456.
    One has a right to assume that a traveling salesman lias an unqualified authority to act for his principal in all matters which come within the scope of his authority. 48 Ark. 138.
   Humphreys, J.

This suit was brought by appellant against appellee, in a magistrate’s court, upon an open account for $110.58 for coffee sold to appellee on the 13-th day of November, 1920.

Appellee interposed the defense that it was entitled to a credit for more than the amount sued for on account of -certain bags of coffee returned to appellant at the instance of its agent.

The cause was tried in the magistrate’s court, and appealed to the circuit court of Crawford County, where a trial was had before a jury, which resulted in a verdict and judgment in favor of appellee, from which is this appeal.

The undisputed testimony in the case showed that both bills of coffee were sold to appellee by a traveling salesman of appellant. The first bill, consisting of two bags of Special Peaberry coffee, was sold by P. W. Buxton on the 27th day of September, 1919, and amounted to $127.50. This bill was paid in a short time after the coffee was received, and before same had been inspected. Thereafter P. W. Buxton sold several other bills of coffee to appellee, which were also paid. John Thompson then succeeded P. W. Buxton as traveling salesman for appellant, who called at appellee’s place of business in Mulberry, Arkansas, on the 13th day of November, 1920, for the purpose of selling more coffee to it. He found W. P. Brigance and C. C. Jeffers, two of appellee’s clerks, making an inspection of the two bags of Special Peaberry coffee purchased by appellee on the 27th day of September, 1919. The coffee had been set aside and never inspected until that time. Thompson informed them that he represented appellant, and, without knowing or ascertaining when the two bags of coffee had been bought, asked what appellee paid for the coffee, and, when told, said it was not the kind of coffee bought, and for them to return it to appellant and take credit for the purchase price thereof. On account of these directions appellant bought the bill of coffee sued upon. The invoice of both shipments of coffee contained the following provision:

“By accepting this invoice you accept terms and conditions as specified. This bill becomes due immediately when purchaser suspends pavment, sells out, removes, or is closing out. We do hereby guarantee that the articles of food listed herein are not adulterated or misbranded within the meaning of the Federal Food and Drugs Act, June 30, 1906, as amended. Our responsibility ceases when transportation company signs ‘Received in good order.’ No claims allowed-of any nature unless made within five days of receipt of goods.”

The two bags of Special Peaberry coffee were returned in accordance with the direction of the agent, and a correspondence ensued -between appellant and appellee relative thereto. Appellant claimed that the coffee returned was the kind and quality purchased, and appellee that it was not. In one of the appellant’s letters the following paragraph appears: “We call your attention particularly to the fact that you have received from us several orders since you received the above mentioned coffee in question. Also our salesman has called a number of times, and in each and every case you did not make a complaint -on this coffee that you now state exists. Our former Mr. Buxton had the pleasure of selling you several bills, and we feel confident that, had anything been the matter with the coffee at the time same was received, certainly he would have given this -matter immediate attention. Our representative who called on you last trip of course is new on the territory, and would*, not know as to the condition of the coffee when you purchased same.” Other testimony besides the letters was introduced by each party relative to the kind and quality of the coffee contained in the two bags returned to it, which testimony was conflicting. Appellant also -introduced its president as a witness, who testified that its salesman was not authorized to permit the return of any merchandise that it shipped to its customers.

The cause was sent to the jury, over the objection of appellant, for it to determine, from all the evidence in the case, whether appellant’s -salesman was acting within the scope of the authority given by appellant to its ag'ent in directing the return of the two bags of coffee. The jury was told that, if it found, from a preponderance of the testimony, -that said agent was -acting within the scope of his authority in directing the return of the coffee, it should find for appellee; but, if not acting within the scope of his authority in directing the return of the coffee, it should find for appellant. Before the cause was sent to the jury, appellant requested a verdict' in its favor.

Appellant insists upon a reversal of the judgment because the court erred in submitting the question of its agent’s authority to the jury for determination, contend . ing that the undisputed facts reveal that its agent was without authority to direct the return of the coffee.

This court is committed to the doctrine that “a third person has the right to assume, without notice to the contrary, that a traveling salesman of a wholesale house has an unqualified authority to act for the firm he represents in all matters that come within the scope of that employment.” Keith v. Herschberg Optical Co., 48 Ark. 138; Brown v. Brown, 96 Ark. 456; Oakleaf Mill Co. v. Cooper; 103 Ark. 179. Thompson was an admitted traveling salesman of appellant, engaged'in selling coffee. The undisputed evidence reveals that he made the sale, the purchase price of which is sued for in this action, by directing appellee to return certain coffee to his house, which, he admitted, was not the kind and quality bought from it, for which credit would be allowed. The whole transaction related to the particular commodity which he was authorized to sell. The excerpt from the letter written by appellant to appellee in relation to the return of the •coffee does not make denial that Thompson was acting within the scope of his authority in directing the return of the coffee, hut claimed that he was unfamiliar with the circumstances and conditions of the sale made by his pre- ■ decessor, and, for that reason, it should not be bound by his action. In fact, it is inferable from the language used that Thompson’s predecessor had implied authority to correct mistakes or errors growing out his sales. In view of the nature of and the circumstances surrounding the transaction, it cannot be said, as a matter of law, that the direction of the agent to return the coffee was beyond the scope of his apparent authority. It was therefore proper to submit that issue to the jury.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Nelson v. Missouri Pacific Railroad Company.
    Opinion delivered November 5, 1923.
    1. RAILROADS — KILLING OF DOGS — VENUE.—Crawford & Moses’ Dig., § 8574, providing that the owner of horses, mules, cattle or other stock killed or wounded by railway trains ‘may sue for the damages in any court having jurisdiction “in the county where the killing or wounding occurred,” does not apply to the killing of dogs.
    2. Railroads — killing of dog by train — burden of proof. — Crawford & Moses’ Dig., § 8562, declaring that railroads operating in the State “shall he responsible for all damages to persons and property done or caused by the running of trains,” applies to all property, and in an action to recover damages for the killing of a dog by the running of a train, proof that the dog was killed by the train constitutes prima facie evidence of negligence and places upon the defendant the burden of proving that there was no negligence.
    Appeal from Jackson Circuit Court; Bene II. Coleman, Judge;
    reversed.

      E. F. Dunccm, for appellant.
    Dogs are personal property, for the negligent killing of which a railroad company is liable. The killing of a dog by a running train is prima facie evidence of negligence on the part of the railroad company. ' 93 Ark. 32; 116 Ark. 49; 99 Ark. 228; C. & M. Digest, § 8568. Circumstantial evidence is admissible to prove the killing, and such proof, whether direct or circumstantial, having been made, casts the burden on the railroad company to show that it was not negligent. 90 Ark. 4,. 5. The value of a dog may be proved by witnesses, even though there is no proof of market value. 204 S. W. (Ark.) 854; 72 Ark. 29; 53 Ark. 30. With reference to the duty of a railroad company to exercise due care for the protection of animals, there is no distinction between dogs and other animals. 93 Ark. 32, 33, 34.

      Thos. B. Pryor and Ponder & Gibson, for appellee.
    1. To entitle appellant to recover, something more was necessary than finding a dead dog on the track. The statute, C. & M. Digest, § 8574, does not apply to dogs, 90 Ark. 1; 50 S. W. 601.
    2. The verdict is final as to the questions of fact. '89 Ark. Ill; 110 Ark. 632; 113 Ark. 598. See also 33 Ark. 811; 81 Ark. 247.
   McCulloch, C. J.

The plaintiff, Ben Nelson, sued the railroad company to recover the value of a hound dog, alleged to have been run over and' killed by a train through negligence of those operating the train. Defendant answered denying that the train killed the dog and also that there was negligence on the part of defendant’s servants in operating the train.

In the trial of the case plaintiff introduced evidence sufficient to establish the fact that the dog was run over and killed .by the locomotive of a fast freight train. This occurred on appellant’s road' called the White River Branch, north of Newport, Arkansas. The witnesses introduced by the plaintiff also testified that there were no alarm signals given at the time or immediately before the dog was struck and killed. The witnesses testified tli at they saw the dog on the railroad right-of-way, going in the direction of the track, as the train approached, and one witness testified that he saw the dog on the track as the train approached. They testified that immediately after the train passed they found the dead body of the dog; the head had been completely severed, and was lying on the outside of the rails, and the mangled body was lying between the rails; the flesh was warm and bloody, and the body was still quivering. Defendant introduced no testimony.

The court, over the objections of plaintiff’s counsel, gave the following instruction:

“Instruction No. 2. The ¡burden.of proof is upon the plaintiff to show that the employees of the defendant in charge of the engine pulling the train which killed the dog carelessly, negligently or wilfully ran over the dog, before you would be authorized to find for the plaintiff; ’ ’

And the court refused to give the following instruction requested by the plaintiff:

“Instruction No. 1. Gentlemen of the jury, you are instructed that dogs are personal property, for the negligent killing of which railroad companies are liable, although the dog may not have been assessed for taxes, if the proof shows that the dog was valuable, and the proof that the dog was killed by the running of defendant’s train is prima facie evidence of negligence on the part of the company; and that circumstantial evidence is sufficient to prove the killing of the dog. The burden is on the defendant company to show that it was not negligent.”

Thus it is seen that the court instructed the jury that the burden of proof was on the plaintiff to establish negligence on the part of defendant, and refused to instruct the jury as requested by the plaintiff that proof of the killing of the dog by the running of the train made a prima facie case of negligence, and that the burden was on the defendant to show that there was no negligence. These rulings of the court were incorrect.

This court has decided that the statute which declares that the killing of stock on any railroad track “shall be prima facie evidence that it was done by a train” (Crawford & Moses’ Digest, § 8574) applies only to livestock, and does not apply to the killing of a dog. (El Dorado & Bastrop Ry. Co. v. Knox, 90 Ark. 1), but that the statute (Crawford & Moses’ Digest, § 8562) which declares that railroads operating in this State “shall be responsible for all damages to persons and property done or caused by the running of trains” applies to all property, and that in an action to recover damages for the killing of a dog by the running of a train, proof that the dog was killed by the train constitutes ‘prima facie evidence of negligence and places the burden on the defendant to prove that there was no negligence. El Dorado & Bastrop Ry. Co. v. Knox, supra; St. L. I. M. & S. Ry. Co. v. Rhoden, 93 Ark. 32; Taylor v. St. L. I. M. & S. Ry. Co., 116 Ark. 47; Davis v. Parrish, ante, p. 338.

The verdict of the jury might have been induced by the erroneous instruction, or failure to give the correct refused instruction, hence the error of the court was prejudicial.

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


text:
    Old American Insurance Company v. Wexman.
    Opinion delivered November 5, 1923.
    1. INSURANCE — breach op warranty — waiver.—A breach of warranty in a policy of accident insurance, consisting of a misstatement as to applicant’s occupation, is waived where applicant was a clerk in his father’s store, hut the insurer’s agent, either by design or inadvertence, wrote into the application that he was a merchant.
    2. Insurance — premature action — waiver.—A provision in an accident policy that legal proceedings for recovery hereunder shall not be brought before the .expiration of six months from the date of filing affirmative proof with the company, is waived where the company’s adjuster denies any liability.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      Longstreth & Bohlinger, for appellant.
    1. The application becomes a part "of the contract, if made so by the express terms of the policy. 14 R. C. L. 885. Constitution and by-laws of a mutual insurance company form a part of the contract of insurance, whether mentioned or not. Id., p. 995. Material false representation, ground for avoiding policy. Id. 1021. Fraudulent concealment of material facts by the applicant avoids liability on the certificate. 29 Cyc. 87; Id. 91. Provisions in the constitution, by-laws or certificate that no action shall be brought to recover a benefit until a specified time after injury, sickness or death, are valid, and action cannot be maintained until after the expiration of 'Such time. 29 Cyc. 215.
    2. Verdict should have been directed in favor of appellant. Plaintiff admitted that he was not a merchant, but only a clerk. Bouvier, vol. 3, p. 2195.

      Gray & Morris, for appellee.
    1. The agent who took the application knew that appellee was not a merchant, and either inadvertently or purposely filled»the application out to show the occupation of appellee as that of a merchant. The company is bound by his knowledge, and cannot avoid payment. 102 Ark. 14:6; 106 Ark. 92; 14 R. C. L. 1174, § 351.
    2. Appellee offered to comply with the requirements of the policy with reference to proof of loss, and was prevented from doing so by the appellant. It cannot complain. 14 R. C. L. 521, § 520. Moreover, denial of liability made furnishing of proof of loss unnecessary. 53 Ark. 501.
    3. The suit was not prematurely brought. The letter of appellant’s attorney to appellee’s attorney was an implied waiver of the provision against bringing suit within the six months’ period. Besides the denial of any liability constituted a waiver of that provision. 115 N. W. 869; 66 Ark. 225.
   McCulloch, C. J.

This is an action on a policy of accident insurance, issued by appellant to appellee. The policy provided for the payment of a weekly indemnity of $25 during the period of total incapacity resulting from accidental physical injury, and also for the payment of $10 per week for partial disability.

Appellee was injured in an automobile collision, and the proof tends to show that he was injured to the extent that lie was totally incapacitated from performing his usual duties for a period of three months and partially incapacitated for a short time thereafter.

The case was tried below, by consent, before the judge sitting as a jury, and appellee recovered judgment for the amount claimed.

Appellant sets forth three defenses, which, it is claimed, are supported by the uncontradicted evidence.

In the first place, it is insisted that there was a breach of warranty with respect to the statement in the application as to the occupation of the insured. The statement in the application is that appellee’s occupation was that of a merchant, wliereas the proof showed that he was a clerk in a general store. The proof was, we think, sufficient to justify the court in finding that there was a waiver of this breach by the acceptance of the application and .issuance of the policy with knowledge on the part of appellant’s agent that the statement was incorrect. Appellee testified that the agent who wrote and accepted his application was well acquainted with him and with his occupation, that the agent had frequently been to his place of business where the application was received, and knew that appellee was not a merchant, but was a clerk in his father’s store. This is sufficient, as before stated, to warrant the finding that appellant’s agent knew the occupation of appellee to be that of clerk in the store, and either by design or inadvertence wrote into the application that appellee was a merchant. Under well settled rules of law announced by this court, these facts constitued a waiver of the forfeiture. Capital Fire Ins. Co. v. Montgomery, 81 Ark. 508; Gray v. Stone, 102 Ark. 146; Fidelity & Casualty Co. v. Meyer, 106 Ark. 91; Mutual Aid Union v. Blacknall, 129 Ark. 450.

The next defense offered is that there is no right of action for the reason that appellee failed to furnish proof of loss as provided in the policy. It is also contended that suit was prematurely brought, because of the provision in the policy that “ legal proceedings for recovery hereunder shall not be brought before the expiration of six months from the date of filing affirmative proof with the company.”

Appellee testified1 that he gave notice of the accident and resulting injury and that he filed proof on blanks furnished by the company covering the first month’s total disability, and went back later to file additional proof of the' continued disability, but was informed by appellant’s agent at the principal office that it was unnecessary to file other proof until the final proof was made at the end of the disability. Thereafter appellant, through its adjuster, denied liability. There is a conflict on the point, but we think the proof was sufficient to warrant the court in finding that there was a denial of liability. The adjuster offered to compromise, but, according to the testimony, wrote to appellee’s attorney that, unless he was willing to accept 'the compromise offered or wait for further negotiations, he could proceed to the institution of suit to recover under the policy. These facts constituted a waiver of the clause which provided that suit should not be instituted before six months after making final proof.

The evidence was sufficient to support the finding of the court, and, as no error is discovered, the judgment is affirmed.


text:
    Clear Creek Oil & Gas Company v. Brunk.
    Opinion delivered November 5, 1923.
    1. CONTRACTS — forfeiture—waiver.—One party to a contract who, with knowledge of a breach 'by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on a breach.
    2. Mines and minerals — waivers of breach of lease agreement. —Where the lessor in an oil and gas lease accepts rentals from his lessee after knowledge of a breach of agreement to drill a well, instead of declaring a forfeiture and suing for damages, he will be held to have waived the breach and the consequent damages therefrom.
    Appeal from Crawford'Circuit Court; James Cochran, Judge;
    reversed and affirmed.

      E. L. Mattock and Sill & Fitzhugh, for appellant.
    1. Appellant was not liable to suit in Crawford County. Its articles of incorporation name Fort Smith as its domicile; there it lias at all times maintained its principal office, and its chief officer does not reside in Crawford County. Moreover, the summons was directed to the sheriff of Sebastian County, and was there served. This is not an injury to real estate within the 4th paragraph of C. & M. Digest, § 1164. 95 Ark. 421; 232 S. W. 858; 26 L. E. A. (N. S.) 940, note. The action is transitory. C. & M. Dig, § 1176; see Id., § 1171; 77 Ark. 412; 61 S. E. 202; 69 Ark. 429; Id. 396; 84 Ark. 573; 14-A, Corpus Juris, 800, § 2899 and cases cited in notes; 106 Ark. 552; 14 Corpus Juris, 338, § 416 and notes; 59 Ark. 593.
    2. The protection well was waived. See authorities cited in the Bushmiaer case, No. 7853.
    3. The action is- barred by limitation. - 157 Ark. 446, and cases cited in Bushmiaer brief.
    4. There is no duty resting on the lessee to drill a protection well for oil and gas, unless the same may be extracted with benefit or profit to both the lessor and lessee. 140 Fed. 801; 177 Pac. 104.

      J. E. London, for appellees.
    1. Appellant appeared and answered, thereby accepting and choosing the forum in which to interpose its defense. It is bound by that choice. 77 Ark. 497; 95 Ark. 302; 56 Ark. 45. Oil and gas is a part of the realty and is governed by the statute directing where jurisdiction of actions affecting real estate or any interest therein shall be brought. 204 Fed. 955; 97 Am. St. Eep. 1027; 28 Id. 790; 75 Id. 695; 45 W. Va. 27; Bryan on Petroleum and Gas, 174; 25 Atl. 732; 51 W. Va. 583.

      2. There was no waiver of the protection well. 148 Ark. 301; 130 S. W. 286; 48 Tex. Civ. App. 555; 107 S. W. 609; 87 N. E. 381; 35 Atl. 109; 125 Pac. 81; 48 N. E. 502; 49 N. E. 399; 126 Eed. 630 ; Thornton on Oil and Cas, 3d ed., 109, par. 882.
    3. Under the implied covenant contained in the lease the appellant was nnder the duty, within a reasonable time after drilling a producing ivell on adjacent property, to drill offset wells on the leased property to protect the gas under appellees’ land. 148 Ark.' 301.
    4. The amount of damages which the plaintiff should recover was a question for the jury under the evidence, and not for the court. Art. 7, § 23, Const. Ark.; 37 Ark. 164; Id. 580; 35 Ark. 146; 33 Ark. 350; 49 Ark. 439; 58 Ark. 108.
   McCulloch, C. J.

There are two cases involved in this appeal — one instituted by appellee N. H. Brunk for himself, and the other by N. H. Brunk as guardian of Charles Brunk, a person of unsound mind — both against appellant Clear Creek Oil & Cas Company, a domestic corporation, and both actions are based on alleged breaches of lease contracts for the production of oil and gas. The cases were consolidated and tried! together. There was a verdict for the recovery of damages by N. H. Brunk in his individual suit, but the court directed a verdict against the plaintiff in the Charles Brunk case, and an appeal has been prosecuted from the judgment in that case.

The lease in each of the cases covered forty acres of land, and the contract in each instance was, in form and1 substance, the same, except as to the amount of annual rentals to be paid by the lessee during the periods of delay in drilling on the leased lands. In the N. H. Brunk lease it was provided that the annual rental should be $15, which was subsequently increased to forty dollars by oral agreement. In the Charles Brunk lease it was provided that two hundred dollars should be the amount of the annual rental. The contracts were made in January, 1916; they were in customary form and pro: Aded, in substance, for a consideration of one. dollar, paid in cash, and tlie agreement to drill for gas and oil; •that the lease should run for a term' of ten years, and as long thereafter as oil or gas should be produced; that, in the event a gas well or wells should be brought in, the lessee should pay to the lessor the stipulated sum per annum for each well from which gas was marketed; that if no well should be drilled for one year after the date of the lease within two and a half miles of the premises, all rights of the lessee should cease, unless the lessee should elect to continue the lease by paying tne stipulated annual rentals; and that the lessee should have the right at any time to surrender and terminate the lease by giving written notice to the lessor.

Appellant, Clear Creek Oil & Gras Company, had been operating in the Kibler field, in Crawford County, where the leased lands in controversy were situated, and brought in a gas well during the year 1915.

After the execution of the contracts involved in these controversies, appellant drilled for gas and brought in several wells on adjoining lands in close proximity to the lands herein involved, and the evidence tends to show that those wells drained gas from beneath the land of each of the plaintiffs. No drilling operations have been conducted by appellant on the lands of either of the plaintiffs, though demand was made on appellant that the same be done. According to the undisputed evidence, appellant paid the annual rentals regularly for three years after the wells on the adjoining lands were brought in and until the leases were canceled and surrendered by the lessee under the terms of the contract. Appellee N. H. Brunk testified that when he made demand on appellant the first time in 1916 for the drilling' of protection wells on the leased lands, appellant’s representative assured him that “he would get to him pretty soon” and offered to increase the rental to thirty-five dollars “until he could drill a-well,” and that he accepted the rental each year thereafter until the lease was surrendered by appellant. Undisputed evidence adduced by appellant showed1 that the rent was increased to forty dollars for each year and that it was paid and accepted until the surrender of the lease. The present actions for damages are based on the failure of appellant to drill wells on the leased land to prevent drainage of gas through the wells on adjoining land.

In Blair v. Clear Creek Oil & Gas Co., 148 Ark. 301, we decided that, under a contract similar to the ones now in suit for the development of gas, when the lessee drills wells on adjoining lands which drain the leased lands, it constitutes a breach of the contract on the part of the lessee to fail to drill protection wells on the leased lands to prevent drainage, and that there is an implied covenant on the part of the lessee to thus protect the premises. We also held that the acceptance of stipulated rentals for delay did not preclude the lessor from declaring a forfeiture or suing for damages on account of failure of the lessee to drill protection wells during the period of delay for which rent was paid and accepted. Very clear reasons were given in the opinion in that case why such an implied contract arose and why the acceptance of rent in advance for delay should not preclude the lessor from claiming a forfeiture. But in that case rental payments subsequently due were not accepted, and the forfeiture was claimed immediately, without any further dealings between the parties other than a demand, or demands, for performance of the implied covenant to protect the leased land by drilling offset wells. In the present case we have a different situation. The lessor repeatedly accepted payments of rentals for delay after the alleged breach of the implied covenant. In fact, according to the admissions of 'one of the lessors, he also accepted an increase of the annual rental on account of delay after the demand was made for a protection well. The lessor never declared a forfeiture, but, on the contrary, he continued to accept rentals during the remaining period of the contract nntil it was surrendered by the lessee. ' Did this constitute a waiver of the alleged breach and the right to sue for damages? The principle is elemental that one party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on the breach. Friar v. Baldridge, 91 Ark. 133; Grayson-McLeod Lbr. Co. v. Slack, 102 Ark. 79; Bennett Lbr. Co. v. Walnut Lake Cypress Co., 105 Ark. 421; Marker v. East Arkansas Lbr. Co., 135 Ark. 435; 6 R. C. L. 1022. That principle applies here in bar of the right of the lessor to recover damages on account of alleged breach of the contract. The very reasons given by the court in the Blair case why the advance acceptance of rentals did not preclude the party from declaring a forfeiture for the breach which occurred during that .period lead to the conclusion that subsequent acceptance of rentals paid for delay do constitute a waiver of such forfeiture. When a party accepts rentals with full knowledge of the breach, he impliedly consents to further delay, notwithstanding the breach, and cannot thereafter claim a forfeiture or sue for. damages on account of the delay. In the Blair case it was pointed out that a mere declaration of forfeiture for breach of the implied covenant -might hot afford adequate relief to the lessor, .and that he should also be permitted to recover for damages for such loss by drainage as might occur until he could have reasonable opportunity to protect his land. So it follows from that holding that if the lessor, instead of declaring a forfeiture and suing for damages, consents to further delay and accepts compensation for the delay, he thereby waives the breach and consequent injury resulting therefrom.

Our conclusion therefore is that the undisputed evidence shows that there is no right of action for the recoyeiy of damages in either of these cases, so the judgment in the Charles Brunk case is affirmed; and, as the evidence has been fully developed in the N. H. Brunk case, the judgment in that case -will be reversed, and judgment will be entered here in favor of appellant.


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

text:
    State v. Gray.
    Opinion delivered October 29, 1923.
    1. CRIMINAL law — former jeopardy. — Under Const., art. 2, § 8, on* ■acquitted of a felony by a directed verdict has- been put in jeopardy, and cannot be placed on trial a second time for the same offense.
    2. Criminal law — appeals by state in felony cases. — Under Crawford & Moses’ Dig., § 3411, providing for appeals by the State- in felonies where the Attorney General is satisfied that error has 'been committed upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should pass, he may take an appeal, KtslcL where •the only error alleged to have been committed was in directing a verdict upon the evidence, and the appeal would not secure the correct and uniform administration of the law in other cases, the appeal will be dismissed.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    appeal dismissed.

      J. 8. Utley, Attorney General; John L. Carter, Wm. T. Hammock and Darden Moose, Assistants; H. U. Williamson, prosecuting attorney, and Samuel M. Casey, special counsel, for appellant.
    1. It was error to require the State to elect. The two counts in the indictment were used only for the purpose of charging one offense in two different modes. 32 Ark. 203; 45 Ark. 62; 50 Ark. 305.
    2. It was error to instruct a verdict of not guilty. As to the venue, see C. & M. Dig., § 2871; 54 Ark. 611; 16 C. J. 189-190. There was evidence that appellee received the cotton from Lovewell and was to account to him for it, and that he pledged this cotton for his own individual debt. 42 Am. St. Rep., 38; 95 Am. Dec. 400; 2 Clark & Skyles, Law of Agency, §§ 837, 838; 109 Ark. 411. See also L. E. A. 1918-E, 744 et seq., note.

      8. M. Bone, for appéllee.
    1. Two separate offenses were charged. To require the State to elect was the proper procedure.. 32 Ark. 203; 38 Ark. 555.
    2. The appeal should be dismissed. The ruling of the court was clearly upon the sufficiency of the evidence.
   Wood, J.

The appellee was indicted in the Independence Circuit Court of the crime of embezzlement. The indictment, omitting formal parts, is as follows:

“1. That the said T. A. Gray, in the county and State aforesaid, on the-day of June, 1920, then and there being ever the age of 16 years, and being the agent of W. E. Lovell, and having in his custody and possession twelve bales of cotton as such agent, the property of W. E. Lovell, of the value of $1,713, did unlawfully, feloniously and fraudulently make away with, embezzle and convert to his own use- the said twelve bales of cotton aforesaid, without the consent of him, the said-W. E. Lovell, against the peace and dignity of the State of Arkansas.

“2. The said T. A. Gray, in the county and-State aforesaid, on the.day of June, 1920, then and there being over the age of 16 years, and being the agent of W.. E. Lovell, and having in his custody and possession the sum of $1,713, gold, silver and paper money of the United States of America, as such agent, the property of W. E. Lovell, of the value of $1,713, the said T. A. Gray being the agent of the said W. E. Lovell, as aforesaid, the said sum of $1,713 being the proceeds of twelve bales of cotton, the.property of W. E. Lovell, and in the custody of the said T. A. Gray, as such agent, did unlawfully, wilfully and feloniously and fraudulently make away with, embezzle and convert to his own use the said sum of $1,713, without the consent of the said W. E. Lovell, against the peace and dignity of the State of Arkansas. ’ ’

W. R. Lovell, a witness for the State, was introduced, and, after testifying as to his residence and occupation, was asked if he knew the defendant, and, upon answering that he did, was asked if, some time in 1920, witness turned over some cotton to the appellee a:s the agent of witness to sell, ■ and, if so, how much cotton he turned over to the appellee. Thereupon the appellee moved the court to require the State to elect on. which count of the indictment it desired to stand. The court sustained the motion, to which ruling the appellant duly excepted. The State thereupon elected to stand on the first count in the indictment, charging the defendant with the embezzlement of the cotton. The cause then proceeded to trial on that count. Various objections were made by the appellant to the rulings of the court as the cause progressed, in the admission and exclusion of testimony, but the conclusion we have reached makes it unnecessary to set out the testimony and discuss the rulings of the court concerning the same. After the testimony was adduced on behalf of the State, the appellee moved the court to instruct the jury to return a verdict of not guilty, which motion the court granted. The appellant duly excepted to the ruling. There was no motion for new trial, and no statement that the second count was intended to charge the same offense as the first count, but in a different mode, and no such statement is made in the record anywhere. From the judgment of the court discharging the defendant is this appeal.

We are confronted in limine with the question of whether or not this appeal should be dismissed. By this appeal the State undertakes to have the court decide two questions; first, whether or not the trial court erred in requiring the State to elect, and second, whether or not the court erred in directing a verdict of not guilty. The crime charged against the appellee, under the statute, is a felony and punishable by imprisonment in the State Penitentiary. Sections 2500 and 2488, Crawford & Moses’ Digest. The appellee was tried for the offense charged, and. acquitted by the verdict of the jury, under the direction of the court. He had therefore been put in jeopardy of his liberty, and cannot be put in jeopardy again for the same offense. Art. 2, § 8, Constitution of 1874. Sections 3410 and 3411 of Crawford & Moses’ Digest provide for appeals by the State. Section 3411 provides that, “if the Attorney General, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important, to the correct and uniform administration of the criminal law, that the Supreme Court should decide, he may, by lodging the transcript in the clerk’s office of the Supreme Court within sixty days after the decision, take the appeal.”

Both questions presented by the record in this case, upon which the State seeks the judgment of this court, are purely abstract questions of law, and it occurs to us that neither of them are important as a precedent to the correct and uniform administration of the criminal law. "What useful purpose could be subserved by determining the question presented by this record as to whether or not the court erred, under the peculiar facts, in compelling the State to elect on which count of the indictment it would prosecute? There is no warrant for the assumption that a similar state of facts will ever arise again, and, even if such were probable, in construing this statute neither .the Attorney General nor this court is justified in dealing with mere probability, and by bo doing allowing an appeal to be prosecuted by the State to elicit a decision, by this court on alleged erroneous rulings of the lower court, which decision is not important to the correct and uniform administration of the criminal law.

In the very recent case of State v. Spear and Boyce, 123 Ark. 449, construing the above statute, we said: “'It is clear that appeals in felony cases are not allowed by the State except in cases where it is important to have the court correct errors which prevent the nniform administration of the criminal law. Appeals are not allowed merely to demonstrate the fact that the trial court has erred. The question of the legal sufficiency of the evidence in a given case constitutes a question of law for the decision of the court, but it cannot become a precedent for application in another case because of the varying state of facts in different cases, and therefore the decision of that question, even though it be one of law, is not important in the uniform administration of the criminal law.” And in the still more recent case of State v. Mills, ante, p. 194, we held the statute granting to the State the right of appeal in criminal cases does not contemplate an appeal in a case where the only error alleged is that the court incorrectly decided that the evidence was not sufficient to warrant a submission of the issue to the jury. See also State v. Smith, 94 Ark. 368, where we said: “The object and purpose of this provision of the statute is to obtain the decision of this court upon questions of criminal law, so that it may serve to secure the correct and uniform administration thereof. But if the decision of the question presented by the appeal would not serve such purpose, then it would not be of sufficient importance, under this provision of the law, to render an opinion thereon, and the appeal should not, in such case, be entertained.” The doctrine of those cases rules this.

The appeal is therefore dismissed.

McCulloch, C. J.,

(dissenting). The question sought to be presented for decision on this appeal -is whether or not the charge of embezzlement, by misappropriating bales of cotton and the charge of embezzlement by misappropriating the proceeds of the same bales of cotton can be joined in different counts of a single indictment. This is a clear-cut question of law, and the prosecuting attorney and Attorney General seek to obtain the opinion of the conrt thereon, hut the majority have announced the conclusion that the appeal should be dismissed for the reason that it is not of sufficient importance to warrant the appeal. It seems to me that in reaching that conclusion it puts this court in the attitude of usurping the authority expressly delegated by statute to the prosecuting attorney and the Attorney General. Crawford & Moses’ Digest, §§ 3410, 3411. Under the provisions of the statute it requires the concurrence of both of those officers in order to take an appeal to this court. The prosecuting attorney must first pray for the appeal and submit the transcript to the Attorney General, then the Attorney General may perfect the appeal by lodging the transcript with the clerk of the Supreme Court. The statute (§ 3411) provides that, when the Attorney General “is satisfied that error has been committed to the prejudice of the State,, and upon which it is important, to the correct and uniform administration of the criminal law, that the Supreme Court should decide, he may * * * take the appeal.” This very language of the lawmakers commits to the Attorney General, who is the chief law officer of the State, the duty of determining whether or not a question of law involved in a criminal case is of sufficient importance to warrant taking the opinion of the Supreme Court. I think that the prior decisions of this court show that such has been the interpretation placed on the statute. In State v. Dulaney, 87 Ark. 17, Chief Justice Hill, speaking for the court, after calling attention to the provisions of the statute, said: * “This is a method afforded law officers of the State to take the opinion of the Supreme Court upon questions which they consider important .to the correct and uniform administration of the criminal law. ”

It is true that we have held, in several cases cited in the majority opinion, that, where nothing is involved except the legal sufficiencv of the evidence, the case on its face shows it cannot become a precedent in other cases, and is therefore not of sufficient importance to justify an appeal.

Of course, the power of the Attorney General is not absolute, and, if he brings an appeal which shows affirmatively on its face that it involves a question of such character that it cannot in any view be important, then the power to appeal does not exist; but if it is a question of discretion in determining whether or. not the question might not arise hereafter so as to become important, then the statute commits it to the Attorney General and not to the court, and I think that the court exceeds its powers in assuming to exercise that discretion.

There is a considerable number of decisions in felony cases where the State has appealed, and a reference to only a few of them is, in my judgmént, sufficient to show the error of the court in the present decision. Take, for instance, the cases of State v. Ashley, 37 Ark. 403; State v. Gooch, 60 Ark. 218; State v. Dulaney, supra; State v. Binkley, 123 Ark. 240. In each instance there was presented the question of admissibility of testimony, ■ and in each of those cases we entertained an appeal and decided the question of law presented. In the Gooch case the defendant had been indicted for stealing a horse, and the proof adduced by the State tended to show the theft of a mare, and the c.ourt held that there was a variance and directed a verdict of not .guilty. The Attorney .General prosecuted an appeal, which was entertained by the court, and, after a thorough discussion of the question by Judge Riddick, speaking for the court, it was , decided that the court had erred in its ruling, and a declaration of law was made to that effect.

I am unable to see why the questions of law involved in the Gooch case and the other cases cited above present any more clearly questions of law than the present case.

Mr. Justice Humphreys joins me in this dissent.


author: Wood, J.

text:
    Williams v. State.
    Opinion delivered November 5, 1923.
    1. Criminal law — change op venue. — Under Const., art. 2, § 10, providing that the venue in criminal prosecutions may be changed to any other county in the district, a petition filed in the Greenwood District of Sebastian County, asking for a change of venue from both districts of Sebastian County to another county of the district, namely, to Scott County, which was properly supported by the affidavits of two credible persons, as required by Crawford & Moses’ Dig., § 3088, should have been granted and the venue changed to Scott County, and it was error to change the venue to the Fort Smith District of Sebastian County.
    2. Incest — indictment.—An indictment of a father for incestuous adultery with his daughter is sufficient if it alleges that he was a married man and the father of the female at the time of the incestuous adultery.
    3. Indictment and information — subsequent indictment for same offense. — Under Crawford & Moses’ Dig., § 3057, providing that, if there shall be pending two indictments for the same offense against the same defendant, the indictment first returned shall be quashed, held, that an indictment for incest with defendant’s daughter is not suspended by a subsequent indictment for carnal abuse of such daughter, as the offenses are distinct, and the same evidence will not support both charges.
    Appeal from Sebastian Cirenit Court, Fort Smith District; John E. Tatum-, Judge;
    reversed.
    J. B. Karnopp and Robert A. Rowe, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Mammock and Darden Moose, Assistants, for appellee.
   Wood, J.

This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for a period of five yeara for the crime of incest. The indictment, omitting the caption and formal parts, is as follows:

“The said defendant, Jake Williams, in the county, district and State aforesaid, on the 25th day of June, 1921, knowing himself to be the father of one Lavada Williams, and knowing himself to be a person forbidden by law to intermarry with her, the said Lavada Williams, by reason of the fact that he, the said Jake Williams, was then and there father of her, the -said Lavada Williams, did then and there unlawfully, feloniously, insestuously and adulterously have earnal knowledge of her, the said Lavada Williams, and did then and there commit adultery with her, the said La-vada Williams, he, the said Jake Williams, then and there being a married man and the father of her, the said Lavada Williams, against the peace and dignity of the State of Arkansas.”

This indictment was returned on the 28th day of July, 1922.

On January 11, 1923, the appellant filed a petition for a change of venue. He set up as follows: “That the minds of the -inhabitants of the Greenwood District of Sebastian County, Arkansas, in which this cause is pending, are so prejudiced against the defendant, Jake Williams, that a fair and impartial trial cannot be had therein; and for the same- reason as above stated embrace the Port Smith District of Sebastian' County, Arkansas, and for the same reason object to said last mentioned district. And to Sebastian County said objection is made for the reason above stated.” ■ The petition was duly verified by appellant, and the court found it was supported by the affidavits of two credible persons who were residents of the district. The court thereupon removed the cause to the Port Smith District of Sebastian Comity. Appellant duly excepted to the ruling of the court, and this ruling of the court presents the first question for our consideration.

1. Article 2, § 10, of the Constitution provides that -the venue in criminal prosecutions may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as may be prescribed by law.

Article 13, § 5, of the Constitution provides that Sebastian County may have -two districts and two county seats, at which county, probate and circuit court shall be held, as may be provided by law. But this provision of the Constitution does not permit Sebastian County to be divided into two units of government and constitute each a separate county. Sebastian County, as a unit of government, is only one county. For certain purposes the framers of the Constitution provided that Sebastian County might have two districts and two county seats at which the court therein named might be held, but this is far from creating two counties out of Sebastian County.

It will be observed that article 2, § 10, of the Constitution, supra, gives the accused in criminal prosecutions the right to have the venue changed to another county of the judicial district.

The act dividing Sebastian County into two judicial districts, one designated as the Greenwood District and the other the Fort Smith District, and making the courts of the respective districts as distinct from each other as if they were courts of different 'counties, nevertheless does not create two counties out of the county of Sebastian. On the contrary, it is expressly provided in that act that, as to all matters not within the provisions of the act, the county of Sebastian shall be one entire and undivided county. Acts of 1874-5, p. 86, § 13. Although the act divides Sebastian County into two judicial districts and provides for two county seats, pursuant to the provisions of the Constitution, nevertheless as a composite unit of government the integrity of Sebastian County is unimpaired.

The act approved March 8, 1889, provides that the counties of Scott and Sebastian shall compose the Twelfth Judicial Circuit of the State. Acts 1889, § 2, p. 88; Crawford & Moses’ Digest, § 2206.

Therefore, under.the provisions of article 2, § 10, nf the Constitution, supra, the appellant had the right to have the venue changed to Scott County, the only other county in the Twelfth Judicial District, if his petition for such change meets the requirements of the statute in such eases.

■ ■ This brings ns to the inquiry as to whether the petition contains the necessary allegations to show that the minds of the inhabitants of Sebastian County were so prejudiced against the appellant that a fair and impartial trial could not be had therein.

While the petition is inartistieally drawn, we are convinced that, when taken as a whole, the appellant intended to allege, and it is alleged, that the minds of the inhabitants of Sebastian County are so prejudiced against him that a fair and impartial trial cannot be had therein. The allegation that the minds of the inhabitants of the G-reenwood District were so prejudiced against him that a fair and impartial trial could not :ibe had therein, followed by the language, “for-the same ■reason as above stated embrace the Fort Smith District of Sebastian County, and for the same reason object to said last mentioned district. And to Sebastian County said objection is made for the same reason,” clearly constitutes an allegation that the minds of the inhabitants of Sebastian County as a whole are so prejudiced against the appellant that a fair and impartial trial could not be had therein. The petition therefore meets the requirements of the statute, and, since the court found.that it was supported by the affidavits of two residents of the county, who were credible persons, the court erred in not sustaining the petition and changing the venue to Scott County. Wells v. State, 53 Ark. 211; see also Kent v. State, 64 Ark. 247.

2. ■ The appellant next contends that -the court should have 'sustained his demurrer to the indictment because it failed to allege that the appellant was not married to Ms daughter, Lavada Wüliams, and failed to allege the name of his wife. These allegations were not necessary in order to charge appellant of the crime of incest with his daughter. The language in which the charge is ■couched was sufficient to charge appellant with the crime of incest. It was sufficient to charge that he was a married man and the father of Lavada Williams at the time of the incestuous adultery. Martin v. State, 58 Ark. 3; State v. Ratcliffe, 61 Ark. 62; Knowles v. State, 113 Ark. 257.

3. The appellant moved to arrest the judgment on the ground that, after the indictment charging him with incest was returned, another indictment was returned by the grand jury of Sebastian County on January 6, 1923, which indictment, omitting the formal parts, is as follows:

“The said defendant, Jake Williams, in the county, district and State aforesaid, on the 3rd day of July, 1921, unlawfully and feloniously did carnally know and abuse one Lavada Williams, the said Lavada Williams then and there being a female under the age of sixteen years, against the peace and dignity of the State of Arkansas.”

Section 3037, Crawford & Moses’ Digest, provides: “If there shall be, at any time, pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first returned shall he deemed to be suspended by such indictment, and shall be quashed.” The crimes of incest and carnal abuse are not only separate and distinct offenses, but the same evidence might not support them 'both, even when the crimes were committed on the same person. It is the gravamen of the crime of carnal abuse that the act of sexual intercourse be with a female person under the age of sixteen years, whereas in the crime of incest the statute is leveled at the act o f sexual intercourse between persons who are, within certain degrees, related in blood, regardless of the age of the female. The statute defining and prohibiting these separate and distinct offenses were to subserve an entirely different purpose.

When two indictments against the same defendant are .so diverse as to preclude the same evidence from sustaining both, the one setting out an offense differing in all its elements from that charged in the other, they are not for the same offense, or matter, within the meaning of the above section. State v. Hall, 50 Ark. 28. The offenses of carnal abuse and incest are as diverse in their elements as are the offenses of carrying a weapon and murder, although referring to the same transaction. They are also as diverse as are the separate crimes of Sabbath breaking and gaming, although growing out of the same act. The court therefore did not err in overruling appellant’s motion to arrest the judgment.

The indictment for carnal abuse was not brought into the record' in this case, and the appellant seeks to avail himself of § 3037, supra, by bringing up the indictment for carnal abuse by certiorari While this is not the proper method of raising the issue, we have decided it for the guidance of the trial court in case the question should arise at another trial.

4. Other errors are assigned, but we deem it unnecessary to discuss them, inasmuch as they are not likely to arise at another trial.

We find no other reversible error in the record, but for the error in denying appellant’s petition for a change of venue, and the error in failing to change the venue to Scott County, the judgement is reversed and the cause remanded for a new trial.


text:
    St. Louis-San Francisco Railway Company v. Conly.
    Opinion delivered November 5, 1923.
    1. MASTER AND SERVANT — QUESTION FOR JURY. — Where a youth of sixteen was injured while unloading lumber from a ear, whether he assumed the risk of unloading the lumber or whether he was guilty of contributory negligence, held to be questions for the jury.
    2. Master and servant — independent contractor. — Instruction defining independent contractor as one who, exercising an independent employment, had contracted to do a piece of work according to his own method and without being subject to the control of the employer except as to the result of his own work; that he was one who contracted to perform work at his own risk and cost, the workmen being his servants, and he being liable for their misconduct; that if the employer had the right to control one performing the work, then the workman is a servant or employee, and not an independent contractor, held correct.
    Appeal from Craighead Circuit Court, Jonesboro District; Win. K. Kirsch, special judge;
    affirmed.

      W. F. Evans, W. J. Orr and E. L. Westhrooke, for appellant.
    Appellee was not the servant of the railroad company, hut of one Anthony, an independent contractor, and this case is controlled by the one found in 219 S. W. 242, where numerous cases are cited. The test as to who is an independent contractor is set out fully in 14 R. C. L., p. 271, and under such test Anthony was an independent contractor.

      Roy Pemx and Basil Baker, for appellee.
    It was negligence .not to warn appellee of the dangers incident to his work. 95 Ark. 275. The appellee did not assume the risk incident to the work in which he was engaged. 53 Ark. 117; 56 Ark. 232; 90 Ark. 473. Appellee was the servant of appellant, not Anthony. The test of whether a person employed to do a certain work is an independent contractor or a servant, is in the control over the work which is reserved by the employer; 14 R. C. L. 67; Id. 72, §9; 135 Ark.'ll7; 77 Ark. 551; 105 Ark. 477. He is deemed the master who has the control and1 direction. Ill Ark. 486. The case cited by appellant is not in point.
   Wood, J.

This is an appeal by the appellant from a judgment against it in appellee’s favor-in the sum of $1,825. This is the second appeal in the case. St. L. S. F. Ry. Co. v. Conly, 154 Ark. 29.

Hal Conley was employed by one Arthur Anthony, himself an employee of the appellant. Anthony was employed by one Slagle, who was appellant’s station agent at Jonesboro. Anthony’s duty was to see that the freight was transferred from bad order oars to cars in which it could be transported in safety. Slagle told Anthony to employ the men who were to assist him in doing that work. Slagle fixed the price that Anthony was to pay the men. It was left with Anthony as to the number of men necessary. Anthony kept the time of the men on the books which he got from the office of the appellant. Slagle would give Anthony a check for the amount due the men and Anthony would pay them. It was Anthony’s duty to report to Slagle after each car was unloaded. The company furnished stakes, nails and wire, to wire the stakes together which were used to hold the lumber on the oars. When DeWitt Mitchell, the boss of the work before Anthony, left, Anthony became foreman. Slagle told Anthony “to take the book and go and take charge of it until Mitchell came back.” Mitchell never came back. When Slagle gave Anthony a check to pay the men, he cashed the check at the station, sometimes with the agent at the freight house. A check was never given him for any more than the amount necessary to pay for the labor of the men at forty cents an hour and forty-five cents an hour for his own labor. Anthony was not privileged to1 hire men for. any amount in excess of what Slagle said. Slagle never hired or discharged Anthony’s men, and if Anthony did not pay the men he would still owe them under his agreement with them. Anthony told appellee to drive out the stakes, and gave him an axe with which to drive them. He didn’t.go with appellee up there, because he had other business. He took it for granted that appellee knew how to drive out a stake. There was no skill about it. Such is the purport of the testimony of Anthony and Slagle.

The appellee testified that he was hurt on November 12, 1920. He lacked one month of being sixteen years old at the time he was hurt. He had been at work five days, and on the day he was hurt had worked about two and.a. half hours. Anthony put witness to work on the ear and told him to knock the stakes -out and get the ear ready to transfer to the next track. There were two tiers of timber with two stakes on either side of each tier, — cross pieces across the top of the stakes. Appel-lee knocked off the cross piece with an axe and knocked the stake out at the west end — -then started to knock the middle stake out; got it about half way up, and was standing about half way between the two «takes west of the middle stake. He took the axe, knocked on the bottom of the middle stake, looked up, saw the lumber commence to fall, turned his head and didn’t know anything until he was taken home. No one told appellee how to knock the stakes out of the car, and he didn’t know that if he knocked the end and middle stakes the lumber would fall. He didn’t know that if he knocked the middle stake out and then knocked the end stake that he would have escaped injury. On cross-examination he testified that he had never worked except at the handle factory and for the railroad. The stakes were in the car to hold the timber, and he knocked them out to unload it. The timbers were sawed and laid straight. If he had knocked the middle stake out first, the timber would have been supported by the two end stakes.

There was testimony in the record to the effect that the oar was loaded with heavy bridge timbers of some kind. There were two tiers of timber on each end of the car, each tier four or five feet high. One of the witnesses testified that the car was loaded in a way so that it was ‘£ ramshacldy, ’ ’ that is, it would shake and looked like it was about ready to fall off. One end of the timber that struck the appellee was on the ground and the other end on the car. . The middle stake had bent over as far as the other car to which the timber was to be transferred, far enough to let the timber down to the ground. There was testimony in the record tending to show that appellee was a large boy for his age. The testimony of the appellee was to the effect that he had gone to school np to the time he went to work at the handle factory, and his photographs, which were in evidence, showed him to he a boy of unusual size for his age.

1. The appellant contends that the court erred in refusing to grant its prayer for instruction directing the jury to return a verdict in its favor. Counsel for appellant argue that the undisputed evidence shows that the danger of unloading the car in the manner undertaken by the appellee was an obvious one which he knew and appreciated, or should have known and appreciated. They also argue that the appellee was guilty of contributory negligence which was the proximate cause of his injury, and that the undisputed proof showed that there was no negligence on the part of the appellant.

We cannot concur with learned counsel for appellant in these contentions. We are convinced that these were issues for the jury under the evidence. The court correctly submitted these issues in instructions given at the instance of both the appellant and the appellee. We do not set out and discuss these instructions in detail, because they correctly apply familiar rules and conform to the law applicable to such issues as it has been declared in numerous decisions of this court. A reiteration thereof could serve no useful purpose. See Davis v. Ry. Co., 53 Ark. 117; Emma Cotton Seed Co. v. Hale, 56 Ark. 216; Arkadelphia Lumber Co. v. Whitted, 81 Ark. 247; Arkansas Midland Ry. Co. v. Worden, 90 Ark. 406; St. Louis Stave Co. v. Sawyer, 90 Ark. 473.

2. Counsel for appellant also contend that, under all the evidence, the appellee was a servant of Anthony as an independent contractor, and that the jury should have been so instructed. They further contend that the court erred in refusing appellant’s prayers for instructions and in granting appellee’s prayers for instructions on' that issue. These assignments of error cannot be sustained. Under the evidence it was an issue for the jury as to whether Anthony was an. independent contractor, and whetlier the appellee was injured while in Ms employ as such. At the instance of the appellee the conrt instructed the jury, in effect, that, if Anthony was an independent contractor, and if appellee was in his employ at the time of the injury, and'not in the employ of the railroad company, their verdict should he for the appellant. The court defined an independent contractor as one who, exercising an independent employment, had contrasted to do a piece of work according to his own method and without 'being subject to the control of the employer except as to the result of his work; that he was one who contracted to perform work at his own risk and cost, the workmen being his servants and he being liable for their misconduct; that, if the employer had the right of control of one performing the work, then the workman is a servant or employee and not an independent contractor.

Applying this definition to the facts the court further told the jury that, if the agent of the railroad company retained control over Anthony and the manner in which he did his work, or had the power and right to direct Anthony and his men in the manner in which they did the work, or if such agent had the right and power to discharge them at any time, they should find that Anthony was a servant or employee and not an independent contractor; that, in determining the question, the jury should take into consideration all the facts and circumstances in regard to the employment of Anthony, the method of payment, furnishing of tools, and all other facts and circumstances in relation thereto.

The appellant asked the court to instruct the jury as follows: “No. 3. An independent contractor is one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and represents the will of the company only as to the result of his work.”

“No. 4. You are instructed that, if the defendant contracted with Arthur Anthony to transfer material from ¡bad order cars to other ears, and Anthony was, under that contract, to employ and pay his own men, and you find that the railroad company did not retain any control as to the methods Anthony should use, but simply retained the right to inspect and pass upon the completed work of transferred cars, and retained the right to fix the rate of compensation to Anthony and his help, then Anthony was, as to the work of transferring the said materials, an independent contractor, for whose negligence defendant would not be liable.”

The court’s instructions correctly submitted these issues, under the evidence, to the jury.

This court, in St. Louis, I. M. & S. Ry. Co. v. Gillihan, 77 Ark. 551, quoted Judge Elliott’s definition of an independent contractor as follows: “An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and representing the will of the company only as to the result of his work. Generally, where an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor; and, in order that the company shall be liable in such a ease, it must appear that it either exercised or reserved the right to exercise control over the work, or had the power to choose, direct and discharge the employees of the contractor. In general, it may be said •that the liability of the company depends upon whether or not it has retained control and direction of the work.” 3. Elliott on Railroads, § 1063, p. 1586; Arkansas Natural Gas Co. v. Miller, 105 Ark. 477; Arkansas Land & Lumber Co. v. Secrist, 118 Ark. 561; J. W. Wheeler & Co. v. Fitzpatrick, 135 Ark. 117; 14 R. C. L. 67.

The instructions given by the court are in accord with the definitions of independent contractors as announced in the above cases. After giving these instructions it was not error for the court to refuse appellant’s prayer for instruction on the same subject, as these prayers were covered by the instructions already given. The record presents no reversible error, and the judgment is therefore affirmed.


text:
    United States Fidelity & Guaranty Company v. Sellers.
    Opinion delivered November 5, 1923.
    1. Municipal corporations — joint contract for paving. — Where a contractor violates his contract with a paving district, and he and his surety made a new contract obligating them to perform same, the surety was bound as a principal contractor.
    2. Contracts — duty of construction. — It is the duty of the courts to construe written contracts and declare their meaning.
    3. Contracts — construction — extraneous circumstances. — Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, in order to ascertain the intention of the parties from the language used.
    4. Contracts — construction as a whole.— A written contract must be considered as a whole in determining the meaning of the contract as a whole.
    5. Contracts — whereas clauses.— In construing a contract, “wheieas” clauses setting forth reasons or inducements for entering into it must be considered to determine the true intention of the parties.
    Appeal from St. Francis Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Mann & Mann, for appellant.
    Tbe appellant was simply a guarantor for tbe contractor, not a partner. Tbe contract should be construed as a whole. 94 Ark. 461; 93 Ark. 497. In construing the contract the court should put itself in the place of the parties to the agreement, and thereby ascertain the intent of the parties. 113 Ark. 174.

      G. W. Norton, for appellee.
    The contract refers to appellant as a party to it. At any rate, appellant knew what the actual recitals of the contract were, and it is therefore hound by the meaning of the language employed. 146 Ark. 127.
   Wood, J.

The appellee instituted this action against Jos. McCoppin and the appellant, and alleged that he and one Joseph McCoppin, for himself and as agent for the appellant, entered into a contract with the appellee by which appellee was to haul gravel and sand to be used in the construction of pavements for Forrest City Improvement District No. 5. He alleged that McCoppin undertook and agreed to pay the plaintiff $1.50 for each yard of sand and gravel hauled from Little Crow Creek to Forrest City and $1.85 for each yard of sand and gravel hauled from Big Crow Creek to Forrest City; that at the time the contract was made it was represented to the appellee that there were 13,075 yards of gravel and sand to be hauled under the contract, and that, in fact, there was such an amount, and that appellee, relying upon such estimate, ordered, at great expense in price, the necessary equipment to perform the contract. He further alleged that, pursuant to such contract, appellee hauled 3,075 yards of sand and gravel, which entitled him to a payment of $5,579.11, of which amount the appellant had paid $4,927.91, leaving a balance of $851.20. He further alleged that on the 9th of July the appellant notified the appellee that the contract would be no longer recognized by the appellant, and thereby the appellant breached the contract. He further alleged that at the time of the breach of said contract there remained to 'be hauled 10,000 yards of sand and gravel; that the difference between the contract price as made by the parties for the hauling of the gravel and sand and the reasonable cost to the appellee of hauling the same amounted to forty cents per cubic yard, or a total of $4,000. He. further alleged that the appellant, the guaranty company, executed a bond for the benefit of all persons doing labor or furnishing material in said work for the benefit of the appellee, conditioned that Joseph McOoppin should pay all just claims for the same. Appellee prayed for judgment against McOoppin and the guaranty company in the sum of $4,851.20.

McOoppin answered and denied all the material allegations of the complaint. The guaranty company answered adopting the answer of McOoppin, so far as applicable, and denied that McOoppin, as its agent, contracted with the appellee as set up . in the complaint, and averred that, if McOoppin did undertake to contract in the name of the guaranty company, he had no authority to do so. The guaranty company denied that it had any contract with the appellee for any purpose, and especially for the hauling of sand and1 gravel for McOoppin. It is alleged that the bond executed by it was for the sole benefit of Forrest City Improvement District No. 5 of Forrest City, Arkansas, and that, under the terms of said bond the guaranty company did not make itself liable for material furnished or labor done or performed by any person for McOoppin or for Forrest City Improvement District No. 5.

The appellee testified in his own behalf, and, without setting out his testimony in detail, it suffices here to state that his testimony tended to support the allegations of his complaint. Appellee introduced the following paper, which was signed by him: “Exhibit 6: I will haul gravel on the street of Forrest Oity from Little Crow Creek for $1.50 per yard. I will haul from Big Crow Creek for $1.85 per yard; and also agree to furnish three teams on the streets and two at the creek.” Concerning this paper, appellee testified that it was a simple bid on the job, and he was to have a contract afterwards. McCoppin testified, among other things, concerning this paper that he understood that it constituted the entire 'contract between him and Sellers the moment Sellers gave it to him. He understood that it was left open for him to stop it or for Sellers to quit hauling. What witness meant was that the writing didn’t apply to the whole contract. Witness agreed to make advances to .Sellers for labor and to retain a certain amount as percentage, none of which was in the bid. .This was agreed to. ¡before Sellers went to work. This didn’t become a part of the contract, but Sellers came to him and said that he didn’t have the means to pay his labor, and asked if he would advance the money to pay it, and witness told him he would.

The guaranty company was not a contractor on the job, as witness understood, but was merely on witness’ bond. The estimates for the work had written across the head of each, “Jos. McCoppin, U. S. Fidelity & 'Guaranty Company, Contractors.” These estimates were furnished by the engineer.

The contract between Forrest City Improvement District No. 5, party of the first part, and Jos. McCoppin and U. S. Fidelity & Guaranty Company, surety, parties of the second part, executed in April, 1921, was introduced in evidence. This contract, by way of inducement, recites that a contract has been entered into between the party of the first part and McCoppin on the 30th of April, 1919, to do certain paving in the city of Forrest City; that the guaranty company was a surety on McCoppin’s bond for the faithful performance of the contract; that a suit had been filed by the district against McCoppin and the guaranty company, alleging that McCoppin had breached the contract, and the bond further recites that the parties of the second part were desirous of completing the work, and that the party of the first part, the district, was willing that same be done upon the following conditions: The first paragraph, stating the conditions, was that the second parties were to do all things necessary for the completion of the pavements as provided in the contract. The second was for the manner in which payments were to be made. The third provided for an additional stun to be paid the engineer. The fourth provided that the work should be prosecuted diligently and without unnecessary delay by the parties of the second part, and the work was to begin at once. The fifth specified that, in case the parties of the second part completed the work as provided in the original contract, then the penalty of $10 per day as prescribed in that contract was waived, otherwise to remain in full force and effect. It further recited that none of the parties waived any forfeitures or rights, except as therein provided, that any of the parties may have had under the original contract, and that, in case the parties of the second part completed the work as provided in the contract, the suit pending in the circuit court by the district against the parties of the second part should be dismissed at the cost of the parties of the second part.

At the request of the appellee the court, among other instructions, gave the following:

“No. 2. The writing by which Mr. Sellers proposed to haul the gravel for Mr. MoCoppin is not a completed contract. There is no written contract between the parties, plaintiff and defendant, and you will look to the verbal testimony herein to establish what their contract was. A verbal contract is good for such matters as are in controversy between the parties hereto; it is not required to be in writing.”

The court instructed the jury, at the request of the appellants, “that the writing evidencing the offer made by the plaintiff, if accepted by McCoppin, would constitute a contract between the parties, and if the plaintiff did not offer to haul all gravel for the entire paving contract, the defendant would not • be liable.” And further, that “in determining what the contract was between the parties they should take into consideration all the facts and circumstances in deciding the writing evidencing the offer.” The court refused to grant the following prayer of appellant: No. 1. “The jury is instructed that, in determining the issues as to the TJ. S. Fidelity & Guaranty Company, it would not be liable in this ease ior profits on material not hauled by defendant.” The appellant duly objested and excepted to the ruling of the court in refusing this prayer.

The jury returned a verdict in favor of the appellee in the sum of $841.75. Judgment was entered in this amount against the appellant, from which it prosecutes this appeal.

1. The appellant contends that the court erred in refusing its prayer for instruction No. 1, telling the jury that the guaranty company would not be liable for profits on material not hauled by the appellee. The appellant contends that it was only a surety for McCoppin, and therefore was in no way interested in the profits that anight accrue to him, and that it was not liable to the appellee for any profits that might have been received by him under his contract with McCoppin. The court, among other instructions, gave the following:

“No. 4. If you find, from the contract between the improvement district upon the one hand and McCoppin and the bonding company upon the other hand, that the bonding company undertook with McCoppin to complete the paved streets, then the bonding company becomes a joint contractor with McCoppin, and is liable to the same extent he is, if you find that they are liable at all. And in determining the contract between the parties, you are to take into consideration all the facts and circumstances, including the writing evidencing the offer, that is, the written offer that has been introduced here in evidence and read in your presence.”

This instruction submits to the jury the issue as to whether or not the guaranty company was a joint contractor with McCoppin to complete the paved streets for the improvement district. The instruction in this respect was more favorable to the appellant than it was entitled to, for the court should have construed the contract and declared as a matter of law that the guaranty company was a joint contractor with McCoppin to complete the work of the district as provided in the original contract between McCoppin and the district. It is a fundamental rule of construction that “courts may acquaint themselves with the persons and circumstances that are subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, in order to ascertain the intention of the parties from the language used. 'The contract must be construed as a whole, all of its parts being considered, in order to determine the meaning of any part, as well as the whole.” Wood v. Kelsey, 90 Ark. 272; Reed Drug Store v. Hessig-Ellis Drug Co., 93 Ark 497-501; Fort Smith Light & Traction Co. v. Kelly, 94 Ark. 461; Maloney v. Maryland Casualty Co., 103 Ark. 174; Connelly v. Parkes, ante, p. 496.

The “whereas” clauses of the contract set forth the reasons or inducements for entering into it. These, to be sure, must be considered in determining the true intention of the parties in entering into the contract. Reed Drug Store v. Hessig-Ellis Drug Co., supra; Fort Smith Light & Traction Co. v. Kelly, supra.

When these rules are applied to the contract under consideration it is clear that the guaranty company bound itself to complete the pavement according to the original contract between McCoppin and the district. The contractual clauses of the contract are unambiguous and leave no room for any other interpretation.

2. Appellant contends that the court erred, in' giving appellee’s prayer for instruction No. 2. There is no error in this instruction. The testimony of both McCoppin and the appellee was to the effect that the paper containing the proposal or offer of the appellee to furnish teams and haul gravel at a certain price was not the complete contract. Appellee testified that McCoppin and witness did not consider the little scrap of paper as being a written contract, McCoppin testified as follows: "Witness didn’t consider the writing of Sellers as a completed contract * * * . He didn’t rely on it as a completed contract. “He' didn’t understand it to be the entire contract. Tliat it didn’t apply to the whole contract;” and he further testified on cross-examination that “he understood that the piece of paper constituted the entire contract between him and Sellers the moment he gave it to him.” Witness “didn’t know how the question was put to him in the morning, but that what he meant was that the writing didn’t apply to the whole contract.” The writing itself shows that it was not a completed contract. So the court did not err in telling the jury that there was no written contract between McCoppin and the appellee for the hauling of the gravel, nor did the court err in telling the jury that they should look to the verbal testimony to establish what the contract'was between them.

We do not construe the language of the instruction as excluding the paper from the consideration of the jury in determining what the contract was. That such was not the intention of the court is clearly manifest in the concluding paragraph of instruction No. 4 given at the instance of the appellee, in which the court expressly tells the jury that “in determining the contract between the parties you are to take into consideration all the facts and circumstances, including the writing evidencing the offer that has been introduced here in evidence, and read in your presence.” The jury were thus expressly authorized to consider the writing in determining what was the contract between the parties.

The record presents no reversible error, and the judgment is therefore affirmed.