author: Wood, J".

text:
    Boyle-Farrell Land Company v. Carleton.
    Opinion delivered November 24, 1924.
    Master and servant — contributory negligence. — In an action for the death of an employee, killed while removing shafting from sheave wheels in defendant’s sawmill, evidence held to show that defendant’s negligence alone was responsible for his death, as the manner of doing the work was wholly within his control, and he adopted a dangerous instead of a safe method of doing same.
    Appeal from Grant Circuit Court; Thomas. E. Toler, Judge;
    reversed.

      Coleman, Robinson & House, for appellant.
    The deceased was not only guilty of contributory negligence, but he also assumed a perfectly obvious risk which he himself created, by the deliberate adoption of a dangerous method in place of a safe one. 135 Ark. 488; 149 Ark. 270. Appellant was entitled to an instructed verdict.

      Isaac McClellan, R. W. Wilson and J. T. Coston, for appellee.
    Appellant, a- corporation, is liable for the injury caused by the negligence of one of its servants. C. & M. Digest, 7144; 109 Ark. 288; 144 Fed. 731. The negligence of Smith in knocking ont the shaft in the absence of Carleton, and in- disobedience of his orders, is not imputable to Carleton. 75 Ark. 30. If it was error for the court to submit to the jury the questions of assumed risk and contributory negligence, such error was cured by giving instructions 3, 4 and 5 for appellant on the same subject. 67 Ark. 539; 116 Ark. 108; 132 Ark. 450; 151 Ark. 34; 151 Ark. 278. Appellant is not in position to claim error in instruction No. 5, since he did not even plead assumed risk as a defense.. 116 Ark. 108. .The danger was not obvious. Carleton did not assume the risk and was not guilty of contributory negligence, unless he understood and appreciated the dangerous condition. 103 Ark. 61; 82 Ark. 11; 105 Ark. -334; 110 Ark. 456; 108 Ark. 483. The cases cited by appellant are not in point. Conceding for the sake of argument that deceased was negligent in suspending the wheels, the subsequent negligence of -Smith in disobeying his -orders would render appellant liable. 2 Labatt on Master an-d Servant, 813; 203 U. -S-. 473; 67 Ark. 8. Deceased did not assume the risk of -Smith’s negligence. Great Western Land Co. v. Barker, 164 Ark. 587.
   Wood, J".

This is an action by Mrs. Corrie Carleton, administratrix of the estate of her deceased husband, against the Boyle-Farrell Lumber Company, to recover damages for the alleged negligent killing of E. B. Carleton while in the employ of the defendant. She alleged that Carleton was employed by the defendant as a mechanic, and was engaged in removing the shafting from the sheave wheels at the west end of the carriage platform in the defendant’s sawmill; that, being unable to do so with the tools and equipment at hand, he stopped work and went for other tools with which to perform the task; that, during his absence, and without his knowledge or consent, one Mose Smith, an employee of the defendant, removed the shafting from the sheave wheels, leaving them suspended in a dangerous manner, and that, just as Carleton returned to the point on the ground underneath. said sheave wheels, they fell, and one of them struck Carleton and injured him so severely that he died about one hour • thereafter; that the death of Carleton was due to the negligence of defendant in-removing the shaft from the wheels, in the absence of the deceased, and in leaving the said wheels suspended in a dangerous manner after removing the shaft, and in failing to warn the deceased of what had been done and of the dangerous condition in which the sheave wheels had been left. The plaintiff prayed judgment on behalf of the estate in the sum of $5,000, and -for the benefit of the next of kin in the sum of $10,000.

The answer denied the allegations of the complaint as to negligence, and set up the defenses of contributory negligence and assumed risk.

Mose Smith testified that he had been employed by the Boyle-Farrell Lumber Company, hereafter called appellant, for eighteen or nineteen years, off and on. He was working for appellant in December, 1922, when Carleton was killed. The mill at that time was shut down for repairs. Witness was working with Carleton, taking down a pair of sheave wheels. The saw-carriage platform is built above the ground about twelve or fourteen feet high. The carriage is pulled by a pair of twin engines and a wire rope feed which winds and unwinds on a drum wheel. There is a little groove cut in the drum, and the rope winds and unwinds off of that groove, and the sheave wheels have a groove cut in them, and the wire cable works back and forth in this groove. There were four sheave wheels, two at each end. They were taking down the two larger wheels on the rear end. At first Carleton was on the upper floor, sitting on the grand stand, a place about two and a-half feet high, and witness was down underneath the floor, driving the shaft out of the wheels. Carleton was looking down at witness. Witness was standing on a ladder, the foot of-the ladder resting on the ground and the top on the rim of the sheave wheels. Witness was driving the shaft out of the hub of the wheels with a sledge-hammer. Carleton said he was going to take the wheels down. Witness drove the shaft np to the hub of the wheel, when Carleton said, “Mose, wait a minute. I will go to the shop and get •you something to drive it out with.” After witness drove it up to the hub, he could not hit it any more with the sledge-hammer, and at this point Carleton said, “ Wait, and I will go to the shop and hunt you a piece of iron to drive it out with. ’ ’ Carleton got down from where he was sitting and went to the shop to get the piece of iron. He wasn’t gone over two, three, or four minutes. While he was gone, witness looked down on the ground and saw a piece of iron, which witness got and drove the shaft out. Just as he drove it out, it fell on the ground right down under the wheel. Carlton walked in the back end of the mill, about the time witness drove it out, .and said to witness, “You have got it out, have you?” and witness replied, “Yes sir.” Carleton then threw the piece of iron down that he had to drive the shaft out with. After witness drove the shaft out, he went down the ladder. As he was coming down Carleton was walking up. As witness stepped off the ladder Carleton walked right up under the wheels, and reached down to get a key that bounced out of the shaft when it fell on the ground. As Carleton reached down, to pick up the key, witness heard a noise, and said, “Look out!” and witness jumped right but through a hole that was in the wall' The wheels came right straight down. They were hung four or five feet above witness’ head. As they came down one of the wheels brushed the sledge-hammer off of witness’ shoulder and drove it in the ground. The other wheel fell on Carleton. It all happened in a second.

On cross-examination witness explained that the two wheels were side by side, just as near together as they could get. They had a hub like a wagon hub, and these two hubs rubbed together. There were four or five inches.between the rims. The piece of iron witness used to drive the axle out with was about the same kind that Carleton went to get. Either piece would answer the same purpose. Witness was asked this question:

“Q. He said for you to wait and ‘I will get you something?’ A. Yes sir. Q. 'Did you understand he Wanted you to quit work, if you had a piece there to drive it out with? A. No sir; if I had a piece to drive it out with, I didn’t understand he wanted me to quit, hut I didn’t have anything to drive it out with hut the sledgehammer at that time, and he didn’t see anything. I don’t suppose, if. he had he would have told me to get it, and I didn’t see anything or I would have told him that I saw a piece down there that would answer for that purpose; but I didn’t see anything at the time he told me to wait.”

- The witness continued his testimony, and stated that, just as Carleton walked in the rear end of the mill, witness hit the last lick, and the shaft fell out. Witness then put his sledge-hammer on his shoulder and came down the ladder, and, just as witness stepped off the ladder on the ground, .Carleton reached down and picked up a key, when witness heard the noise, and jumped, as before stated. Carleton was straightening up, but hadn’t got straight. Before Carleton got up to witness, he said “I see you have it out,” and when he said that he threw down the piece of iron he had. He was then about twenty feet away. Witness and Carleton were standing together, nearly under the wheels. Witness explained how the wheels were hung by saying that Carleton took a piece of wood and put it through the rim of both wheels (indicating by using the arm of a chair), either wheel resting on the end of the piece of wood.' They had a tackle chain which they wrapped around the block on the ends of which the wheels were suspended. When the chain was wrapped around the block two or three times there wasn’t much of the rim over the end of the block. Witness was working as a helper under Carleton’s direction. Carleton was the master mechanic. Witness never thought about the wheels falling, or he would not have gone on the ladder. Witness supposed Carleton could have wrapped the chain around the spokes and through the rims and lifted the wheels just as easy as he • could have done with the block. If he had done that, he would not have had the block. When witness knocked on the shaft with the sledge-hammer, he never paid any attention to the shaking part of it. He was after driving the shaft out, and it was pretty hard to drive it, and witness “might have shook it right smart, because it was hard.” He had to stop and rest once or twice while he was driving it out. After witness drove the shaft out with the piece of iron, he laid it on. the window sill. Witness-further explained that, when the wheels fell, Carleton was not standing directly under the wheels. He was standing right at the side of it. The wheel, in falling, did not hit the ground, but hit a big piece of timber and fell over on Carleton.

R. E. Farrell, one of the owners of the mill, testified, among other things, that Carleton was in the employ of the appellant in charge of its repair work. He had full charge of • all the machinery, locomotives, plants and ■ everything, and had about twenty men under him, among them Mose Smith., Witness picked up the block on which the sheave wheels were suspended, and pointed out the marks of the chain around the block,- and stated that the wheels were seven feet eight inches in diameter, and -that the floor was fourteen feet from the ground; that it was nine feet from the center of the shaft to the ground; that the wheels were keyed on to the shaft to keep them from slipping back and forth and to hold them steadily on' the axle; that the wheels extended above the floor about' two inches. The opening through which they extended above the floor was about seven inches wide and three feet long. The'wheels weighed about 1,200 pounds each. Carleton raised the wheels with a chain-block which would lift 2,500 or 3,000 pounds, and could be operated by one man. Carleton could have put the chain right around the sheave wheels to keep them from slipping on the block, or he could have used a longer piece of timber. Any of those methods' would have been safer than the method he used, which was the most dangerous he' could use for suspending the wheels while removing the shaft and pin.

The above states all the material testimony bearing on the issues of negligence, contributory negligence and assumed risk. The court submitted these issues to the jury under instructions which, -in our view of the ease, it becomes unnecessary to set forth.

Among other prayers for instructions, the appellant presented the following: “You are instructed to return a verdict for the defendant company.” The court •refused this prayer, and the appellant duly, excepted to the ruling of the court. The appellant also presented several other prayers for instructions to the effect that, if the jury believed from the evidence that the manner of suspending the sheave wheels was dangerous, and that the deceased knew and appreciated the danger,, or, by the exercise of reasonable and ordinary prudence, could and should have known, then he assumed the risk of being injured thereby, and, if the jury found he was injured thereby, they should return a verdict in favor of the appellant. The court refused these prayers, to which the appellant duly excepted.

Another prayer for instruction was to the effect that, if the jury found Carleton, upon his return, saw the shaft was out of the wheels, before he went near them, and while he was still fifteen or twenty feet away, then the driving of the shaft from the wheels was not the proximate cause of Carleton’s injury. The court refused this prayer, to which the appellant duly excepted.

The jury returned a verdict in favor of the appellee for the benefit of the estate in the sum of $2,500 and for the benefit of the next of kin in the sum of $5,000. Judgment was entered in favor of the appellee in accordance with the verdict, from which is this appeal.

The appellee contends that the appellant is liable on the ground that its employee, Mose Smith, in the absence of Carleton, his foreman, and in disobedience of his orders, drove out the shaft, and that, in so doing, Smith was guilty of an act of negligence which was the proximate cause of the death of Carleton, and which act of negligence rendered the appellant liable under § 7144, Crawford & Moses’ Digest. To sustain this contention the appellee must rely upon the testimony of Mose Smith, who was the only eye-witness to the injury. After a careful consideration of his testimony, we are convinced, in the first place, that there was no act of negligence on the part of Mose Smith. When Mose Smith had driven the axle to the hub of the wheel, Carleton said, “Mose, wait a minute, I will go to the shop and get you something to drive it out with.” Mose stated that he didn’t understand that Carleton, by this direction to wait, wanted him to quit driving'the axle,- but that, as he didn’t have any iron to drive it further, his only purpose in wanting him to quit was to get the piece of iron, and, as he saw a piece of iron, near that would answer the same purpose, he used that while Carleton was away. The iron witness used was substantially the same kind of iron that Carleton brought back, and served the same purpose as that would have done. So, during the absence of Carleton, Mose Smith didn’t change the manner that liad been adopted by Carleton to drive out the axle. 'He used the same method and practically the same means that would have been used had he waited for Carleton’s return. Manifestly, the purpose of Carleton in telling Mose to wait was not to change the method that he had' adopted for driving out the axle, but only to procure an instrument by which it might be done in the same manner Hint lie bad adopted. If Mose, during the absence of Carleton, had changed the method or the means of driving out the axle, the case would have been different, but Mose was pursuing the same method and using practically the same means that he would have used had Carleton been present when the axle was driven out. Mose was doing the work in the manner Carleton had planned and directed that it should be done.

We do not find in this testimony any evidence whatever to justify the conclusion that Mose disobeyed the orders of his superior, and that he was negligent.

In the second place, even if we are mistaken in holding that the undisputed evidence shows that there was no negligence on the part of Muse Smith, and if it could be said that he was negligent in not waiting for the return of Carleton, still the undisputed evidence shows that his negligence in this respect was not the proximate cause of Carleton’s injury. Carleton walked into the back end of the mill about the time Mose drove the axle out, and said, “Mose, you have got it out, have you?” and Mose replied, “Yes sir.” Mose was then coming down the ladder, and Carleton walked up right under the wheels as Mose stepped off the ladder, and reached down to get the key that was in the shaft when the shaft fell on the ground, and, as Carleton reached down, the wheels fell, and one of them struck him. The undisputed testimony shows that Carleton knew, soon after he returned with the piece of iron, and before he went under the wheels, that the axle had been driven out. Mose stated that Carleton was about eighteen or twenty feet away when he said, “I see you have got it out,” and he replied, “Yes sir.” With full knowledge of this fact, Carleton walked up and stepped under the suspended wheels, and stooped to pick up the key, when the wheels fell and injured him as he was straightening up.

The testimony unquestionábly shows that the manner adopted for suspending the wheels and removing the axle was negligent, but the manner of doing this repair work was wholly within the control of Carleton himself, and it was his negligence, and his negligence alone, as we view the undisputed evidence, that was the direct and proximate cause of his death. By the exercise of ordinary care upon his part he could, and should, have planned a safer method for suspending the wheels and removing the axle, which the proof shows could have been adopted; but, after adopting this dangerous method, and after the axle had been driven out according to that method, he had knowledge of this fact, and could and should have known, in the exercise of ordinary care on his part, that it was dang’erous in the extreme to walk under the suspended wheels. The danger was so obvious, at least to one of his experience, that there is no room for any conclusion in the mind of any reasonable person other than that Carleton’s own negligence Was the direct and proximate cause of his injury and death. The undisputed evidence shows that the wheels were suspended in such a manner that the least vibration or oscillation from the slightest difference in weight, or from other cause, would make them slip from the short 2 x 4 on which they were suspended. Carleton had full knowledge of these conditions. The danger was so imminent and obvious that Carleton, by the exercise of ordinary care, could and should have avoided it. The court therefore erred in refusing appellant’s prayer for a directed verdict and in not declaring as a matter of. law that the direct and proximate cause of the injury to Carleton was his own negligence.

The judgment is reversed, and, inasmuch as the cause has been fully developed, it will be dismissed.

Humphreys, J., dissenting. •


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Jones v. State.
    Opinion delivered December 1, 1924.
    1. Seduction — corroboration op prosecutrix — Testimony of prosecutrix as to promise of marriage, made to her by accused, held sufficiently corroborated by the circumstances in proof in this case.-
    2. Seduction — evidence.—In a prosecution -for seduction it was not error to permit the prosecutrix to testify as to her prepara- . tions for the wedding.
    3. Sepuction — evidence.—Witnesses in a seduction case may testify that defendant and the prosecutrix went to a certain city together and purchased a dress for her, but cannot testify as to her acts or declarations, relative to marriage, made in defendant’s absence.
    Appeal from Sharp Circuit Court, Southern District; John C. Ashley, Judge;
    affirmed.

      J. 8. Utley, Attorney General, and John L. Garter, Assistant, for appellee.

      Fred M. Pickens for appellant.
   McCulloch, C. J.

The appellant is charged with the crime of seduction, committed by having sexual inter*, course.with a certain unmarried female, under a false or feigned express promise of marriage.

The girl alleged to have been seduced testified that she and appellant lived in the same neighborhood in Sharp County, and began keeping company in January, 1923; that they became engaged to be married, and that thereafter appellant induced her to yield to him in sexual intercourse on account of said promise of marriage.. She testified that she made preparations for the wedding as the agreed date for it approached, ibut that appellant married another girl in August of the same year. She testified that, on one occasion while . she and -appellant were engaged, they went to the city of Batesville together, where she purchased a silk dress to be used as a wedding dress. The girl testified that she gave birth to a child, and that appellant was its father.

Other witnesses were introduced by the State, members of the girl’s family, and friends, who testified that appellant kept company with the girl from January until he married another girl in August of the same year; that he visited the girl nearly every' Sunday and frequently during the week days, and that they were frequently together at the home of her mother and at the home of her sister. Some of those witnesses testified about the trip made by appellant and the girl to Bates-ville, and about her purchase of the dress on that occasion.

Allen Smith, a witness 'introduced by the 'State, testified that he had a conversation with appellant, in which the latter stated that he was “fighting the marriage contract,” but that he did not deny being the father of the child.

Appellant testified in his own behalf, and said that he had sexual intercourse with the girl the third timé he called to see' her, and that he frequently had intercourse with her from time to time up to the time he married, but that he had never become engaged to the girl or promised to marry her. He stated that the only promise he made to tlie girl was that, when she expressed fear that she might “get canght up,” he promised to use certain precautions to prevent conception.

It is insisted that the evidence is not sufficient to sustain the verdict, in that there is no corroboration in regard to the alleged promise of marriage. We are of the opinion, however, that the circumstances are such as to afford corroboration of the testimony of the prosecuting witness.

It is insisted that the court erred in permitting the prosecuting witness to state that she made preparations for the wedding, by malting up a wedding dress and other clothing especially-for that purpose. .We have decided that, in a case of this kind, it is not competent to prove by other witnesses acts or declarations of the prosecuting witness made in the absence of the accused. Woodard v. State, 143 Ark. 404. That rule does not, however, apply to the testimony of the prosecuting witness herself, for the weight of her testimony all depends upon her own credibility, and, after testifying regarding the promise of marriage and the acts of intercourse, the weight of the testimony is not augmented by her own statement as to what she had done in preparation fox the marriage. It is different, however, when an attempt is made to support her testimony by her own acts or declarations in the absence of the accused, and such testimony is incompetent. Other witnesses were questioned and testified concerning the trip made by appellant with the accused to Batesville, and her purchase of the dress, but the court excluded the testimony of witnesses as to the statements of the girl in the absence of the accused. It was competent, however, for those witnesses to testify to the fact that appellant accompanied the girl to Bates-ville, and that she purchased the dress and brought it home with her, in company with appellant. This circumstance was not without some force in corroborating the testimony of the girl, for it shows a certain degree of intimacy between the parties, which, to some extent, warrants the inference that they were engaged to be married.

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


author: Hart, J.,

text:
    Morgan v. Rogers.
    Opinion delivered December 1, 1924.
    Usury — renewal note. — A renewal note given for the amount of the principal and interest of an old note is not usurious, though if bears the maximum rate of interest, to be payable semi-annually, and provides that, if the interest is not paid annually, it shall become part of the principal and bear the same rate of interest.
    Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    John W. Rogers brought this suit in equity against T. D. Morgan and Blanch B. Morgan, his wife, to foreclose a mortgage on real estate.
    . It appears from the record that John W. Rogers conveyed the real estate -in question, situated in Benton County, Arkansas, to T. D. Morgan, for the consideration of $3,600. Morgan agreed to give Rogers a mortgage on the real estate to secure the payment of the purchase money, but, by mistake, executed a mortgage on the wrong land. He then agreed to execute the mortgage in question in order to correct the description in the land. Interest in the sum of $288 was due by Morgan to Rogers, and unpaid. This sum was added to the principal sum of $3,600. Rogers then gave Morgan a check for $112, which was cashed by him. This made a total .amount of $4,000 due by Morgan to Rogers. Morgan then gave his note to Rogers for $4,000, payable five years after date. The note contained a provision that it should bear interest from date at the rate of ten per cent, per annum until paid, payable semi-annually, and, if the interest was not paid annually, it should become principal and bear the same rate of interest. The mortgage contained a provision that, in case of default in any payment of principal ar interest, or a breach of any of the covenants or agreements on the part of the grantors, the whole indebtedness, at the option of the holder of the note, should become due and payable, and that the mortgage might be foreclosed. The mortgage also contained a covenant that Morgan should pay the taxes, and keep the buildings insured for the sum of $800. Morg’an failed to pay the interest when it became due, and did not pay the taxes or keep up the insurance, as provided in the mortgage. Morgan admitted the execution of the note and mortgage sued on, and defended solely on the ground of usury.
    The court found the issues in favor of the plaintiff,- and a decree was entered accordingly. The case is here on appeal.

      Bice £ Bice, for appellants.
    The contract is usurious, and void. It is not only not right, but too often oppressive, to permit the lender to require or compel a stipulation or provision in the note for payment of what is ordinarily understood as the annual interest to be made within less than the annual period, and especially to incorporate forfeiture provisions, or stipulations for forfeiting the borrower’s right for the longer period agreed upon. 54 Ark. 155; 60 Ark. 289; 109 Ark. 69; 22 Ark. 413.

      Vol T. Lindsey, for appellee.
    A contract is not usurious which provides for interest at ten per cent, per annum, payable semi-annually, and, if interest be not paid annually, to become as principal and bear the same rate of interest. C. & M. Dig., § 7353; 129 Ark.. 167; 87 Ark. 25. Interest taken at 10 per cent, per annum in advance for a period of twelve months is not usurious. 60 Ark. 289; 146 Ark. 55. See also 74 Ark. 250, and cases cited; 109 Ark. 69; 138 Ark. 412, 414; 55 Ark. 143; Id. 268-270; 145 Ark. 548-553; 144 Ark. 570.
   Hart, J.,

(after stating the facts). It appears from the record that Morgan purchased the land from'Rogers for the sum of $3,600, and gave his note for the purchase money, bearing interest at the rate of 8 per cent, per annum from date until paid. He intended to give Rogers .a mortgage on the land to secure the payment of the purchase price, but the mortgage described another tract of land by mistake. When the mistake was discovered, Morgan having failed to pay the interest, it was added to the principal, so that principal and interest together, with the sum of $112,“which Rogers then loaned Morgan, made a total of $4,000, for which the note sued on was executed, bearing interest at the rate of ten per cent, per annum from date until paid.

This court has held that it is not usury to add the interest, when it becomes due, to the principal and take a new note for the whole, with interest at the rate of ten per cent, per annum from date until paid. Grider v. Driver, 46 Ark. 50. Therefore there was no usury in the taking of the new notes for $4,000, this being the amount of the principal and interest on the first note, together with $112 additional which Rogers loaned to Morgan.

The record shows that the interest on the new note was payable semi-annually. This court has also held that a contract charging the highest rate of interest allowed by the Constitution is not rendered usurious by the fact that payments of interest are required at intervals of less than a year. First National Bank v. Waddell, 74 Ark. 241.

The note also provided that, if the interest was not paid annually, it should become a part of the principal and bear the 'same rate of interest. This was not in violation of our Constitution on usury. A person may lawfully contract for the payment of interest as it accrues, and it -is not necessary that the principal debt should be due at the time the payment of accrued interest is exacted. The agreement was not a positive undertaking to pay compound interest at all events, but only.in case of default in the payment of the annual interest when it fell due. Morgan could readily relieve himself from all liability thereon by the payment of the interest annually as it fell due. Our Constitution and statute are silent as to the time when the interest may be paid, and only prescribed the rate for a specified term. The language of our Constitution is that all contracts that have a greater rate of interest than ten per cent, per annum shall be void as to principal and interest, and the General Assembly shall prohibit the same by law. Article 19, § 13, of the Constitution of 1874.

This court has expressly held that taking a note bearing ten per cent, interest per annum and providing that, if interest be not paid annually, it shall become principal and bear the same rate of interest, is not such a compounding of interest as would render the note usurious. Carney v. Matthewson, 86 Ark. 25. It might be that the installments of interest might be made so lrequent or unusual as to indicate a disposition to evade the spirit of the law and to compound the interest so rapixlly .as thereby to secure a greater rate of interest than that allowed under the Constitution, but there is nothing in this transaction to evince such an intention.

• It follows that the decree will be affirmed.


text:
    Robbins-Sanford Mercantile Company v. Johnson.
    Opinion delivered December 1, 1924.
    1. Principal and surety — right op surety to exoneration.— Where a principal and surety mortgage their separate properties to secure the principal’s debt, the surety is entitled to have the property of the principal sold first, and the proceeds applied in satisfaction of the debt.
    2. Principal and surety — surety’s right op exoneration.— Where tenants in common executed a mortgage on the common property to secure the individual indebtedness of one of the co-tenants, the surety’s right to have the principal’s property first resorted to was superior to the lien of a subsequently acquired judgment against the principal in favor of a third person.

      3. Principal and surety — right of surety to intervene in foreclosure suit. — Where two tenants' in common executed a mortgage to secure an indebtedness of one of them, the surety who was made a party by publication of a warning order, but made no appearance in the foreclosure suit prior to the sale, was properly admitted to intervene thereafter and assert his prior equity as surety in the proceeds of the sale, without filing the bond required by Crawford & Moses’ Digest, §§ 6259-6266.
    Appeal from •White Chancery Court; John E. Martineau, Chancellor;
    affirmed.
    statement op pacts.
    This was a suit in equity to foreclose certain m’ortgages on real estate, and the appeal involves the question of priority of liens between one of the mortgagees and one of the mortgagors as surety of the other mortgagor.
    The case was tried upon an agreed statement of facts, which, so far as is necessary to decide the issues raised by the appeal, is as follows: E. E. Stone and H. H. Johnson own, as tenants in common, about 560 acres of land in section 1. E. E. Stone is the owner of 80 acres of land in section 11. All of said-lands are in township 6 north, range 5 west, in White County, Arkansas. On October 17, 1919, E. E. Stone and wife executed a deed of trust nn the 80 acres of land in section 11 to secure an indebtedness of $1,000, which he owed the Union 'Bank & Trust Company. The deed of trust contained a provision that it should stand as security for any other indebtedness of the said E. E. Stone, or for any renewal indebtedness. The deed of trust was duly filed for record on October 20,1919. On June 3, 1920, E. E. Stone and wife executed a deed of trust on certain lands, including the 80 acres of land in section 11, to secure an indebtedness of $2,000 which Stone owed the Robbins-Sanford Mercantile Company. The deed of trust provides- that itjis taken subject to a prior deed of trust on the same lands in favor of the Union Bank & Trust Company. This deed of trust was filed for record on June 9, 1920.

      On February 12, 1921, E. E. Stone and wife and H. H. Johnson and wife executed a deed of trust on the 560 acres of land in section 1 to secure an additional indebtedness which E. E. Stone owed the Union Bank & Trust Company. This deed of trust also contained a clause that it should stand as security for any and all indebtedness due by the parties thereto to said bank and trust company. The deed of trust was filed for record on February 16, 1921.
    It was agreed that W. H. Johnson Held the prior lien upon the 560 acres of land in section 1 for the sum of $852.80, with interest from April 16,1923, at 7 per cent, per annum, for the balance due on the purchase price of said land due by E. E. Stone and H. H. Johnson. All of said lands were sold by the commissioner of the chancery court on May 25, 1923, in accordance with the foreclosure decree rendered on April 16, 1923.
    Pursuant to the provisions of • the decree, the 560 acres of land in section 1 were -sold separately, and brought the sum of $3,600.50. The 80 acres of land in section 11 was purchased by W. A. Leach at said sale for $1,425. Leach and the Robbins-Sanford Mercantile Company were the only bidders on this tract cf land. Robbins-Sanford Mercantile Company purchased the other lands embraced in the deed of trust executed in its favor for $1,000. The amount due the Union Bank & Trust Company by E. E. Stone is $2,578.15, with interest from April 16, 1923, at 10 per cent, per annum.
    On the 8th day of November, 1921, the indebtedness to the Union Bank & Trust- Company by E. E. Stone was consolidated and a note given by Stone for $4,188, in lieu of the indebtedness mentioned in the deed of trust executed by him individually on October 17,1919, and the deed of trust executed by E. E. Stone and H. H. Johnson on February 12, 1921. Stone then planed in the Union Bank & Trust Company a life insurance policy payable to his.estate in the sum -of $2,000. Subsequently Stone died, and this policy was collected by the bank in the sum of $1,941.48, which was credited on the note last mentioned. This left a balance due the bank of $2,578.15 on April 16, 1923, as above set forth. The amount due Robbins-Sanford Mercantile Company was $2,297.13.
    H. H. Johnson was allowed to intervene in the case before the proceeds arising from the sale of the lands had been paid out by the commissioner appointed to make the sale. The commissioner was directed to first take out of the proceeds the cost of sale and the taxes paid on the lands. The commissioner was then directed to pay W. H. Johnson the sum of $882.64 out of the pro7 ceeds of the land in section 1. This left the sum of $2,740.30 to be distributed to the parties to this suit. One-half of this amount was directed to be paid to the Union Bank & Trust Company and one-half to the intervener, H. H. Johnson.
    The Robbins-Sanford Mercantile Company excepted to the ruling of the chancery court in decreeing that H. H. Johnson had a prior claim to said sum of $1,370.15, which was one-half of the proceeds of the sale of.the lánds in section 1, after paying 'the taxes and the balance of the purchase price of said lands. To reverse the decree of the court in accordance with the'findings of the chancellor, the Robbins-Sanford Mercantile Company has duly prosecuted an appeal to this court.

      Bnmdidge <& Neelly, for appellant.

      John E. Miller, for appellee.
   Hart, J.,

(after stating the facts). The agreed statement of facts shows that E. E. Stone and H. H. Johnson are tenants in common of the 560 acres of land in section 1, and that they executed a deed of trust on it in favor of the Union Bank & Trust Company to secure an indebtedness which E. E. Stone individually owed it. After the land in section 1 had been sold under the mortgage foreclosure decree, H. H. Johnson was allowed to intervene in the suit, on the ground that he was entitled to be subrogated to the rights of the mortgagee, Union Bank & Trust Company, as to one-half of the proceeds arising from the foreclosure sale of these lands.

It is well settled that, when a principal and surety-each mortgages his own property to secure the debt of the principal, the surety is entitled to have the property of the principal sold first, and the proceeds of the sale applied in satisfaction of the debt. Kempner v. Dooley, 60 Ark. 526.

Counsel for appellant admit the equitable rule of placing .the charge upon the property of the principal debtor in exoneration of the estate of the surety, but deny its application under the facts in this case. They contend that the equities of appellant are superior to those of the intervener, H. H. Johnson, and base their claim in this respect on the fact that appellant had a valid mortgage executed in its favor by E. E. Stone on lands owned by him, prior to the execution of the mortgage by-E. E. Stone and H. IT.' Johnson to secure an indebtedness of Stone to the Union Bank & Trust Company. The mortgage executed by Stone to secure his indebtedness to appellant was upon property owned by him individually, and was not upon the property owned by him as tenant in common with H. H. Johnson, which was mortgaged by them to secure an indebtedness due by Stone to the Union Bank & Trust Co. In short, appellant had no mortgage on the property embraced in the mortgage given by E. E.- Stone and H. H. Johnson to the Union Bank & Trust Company. It is true that he acquired a lien on all the lands of Stone when he obtained a judgment against him in this case; but Ms judgment lien did not entitle him to a preference over prior equities. '

. In the case of Watkins v. Wassell, 15 Ark. 73, it was held that the interest of a judgment creditor, under- his lien, in the real estate of his debtor, is limited to the actual interest of the debtor at the time the lien attaches, and that he holds it free from subsequent alienations or incumbrances, but subject to all prior alienations or incumbrances.

The court quoted with approval from Keirsted v. Avery, 4 Paige Ch. N. Y. p. 9, the following: “Whatever doubts may have once existed on this subject, it is now settled that, a judgment being merely a general lien on the land of the debtor, the lien is subject to every equity that existed against the land in the hands of the judgment debtor at the time of the docketing of the judgment, and a court of chancery will protect the equitable ■rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment debtor has in the estate.”

In short, it was held that a judgment lien amounts to but a security against subsequent purchasers and incumbrancers, and can only operate upon the interest which the debtor had at the time of its rendition. Under this rule, the equitable lien of H. H. Johnson as a surety of E. E. Stone, being prior in point of time to the judgment lien obtained by appellant, is paramount to the lien of appellant as a judgment creditor, because it thereby acquired only a general lien upon the estate of Stone, which, in chancery, is not permitted to prevail as against the prior equity of Johnson as surety of Stone.

As we have already seen, the fact that appellant had a mortgage on other lands of Stone would not give it a prior equitable lien to that existing in favor of Johnson as, a surety of Stone under the mortgage given by them both to the Union Bank & Trust Company. Therefore we are of the opinion that the chancellor correctly decided this issue in favor of the intervener, H. H. Johnson.

It is next insisted that the court erred in allowing H, H. Johnson to intervene, after the sale of the lands under the foreclosure decree, and assert his prior equitable lien as surety on the proceeds of the sale. We do not think that there was any error in this respect, for two. reasons. In the first place, it may be said that, although IT. H. Johnson was made a party defendant to the foreclosure suit, he filed no answer, and his rights were not adjudicated in the foreclosure decree. On the other hand, the court retained control of the cause for such further orders as might be proper to enforce the rights of the parties to the suit and the rights of such others as might thereafter become parties to the action. The right of Jo 1msoil, as surety, to be subrogated to tbe rights of the creditor against his principal, was separate and distinct from the issues raised in the foreclosure proceedings between the mortgagees and the other lien claimants. Therefore it was not adjudicated by that decree, and the court had the power to retain control of and to continue the cause as to his rights as being a distinct and separate issue. Davis v. Cook, 155 Ark. 613.

In the second place, service was had upon H. H. ■ Johnson by publication of a warning order. Under our Code he had two years within which to appear in court and move to have the action retried. Crawford & Moses’ Digest, §§ 6259-6266. It is true that Johnson did not give the bond required by the statute, but the fund on which he sought to obtain a lien was still in the hands of the court, and no prejudice'could have resulted to appellant from his failure to give the bond required by parties constructively-summoned, who seek a retrial of the action within the time prescribed by statute.

It is conceded by counsel for appellant that the court properly directed the payment of taxes upon the different tracts of land, and correctly decided that W. H. Johnson had a paramount lien on the lands purchased from him in section 1 by Stone and H. H. Johnson for the balance of the purchase price.

The result of our views is that the decree of the chancery court was correct, and must be affirmed.


author: Smith, J.

text:
    Lightle v. Rotenberry.
    Opinion delivered December 1, 1924.
    1. Mortgages — construction—“any other liability.” — A mortgage securing a certain note and “any other liability or liabilities of the grantor already or hereafter contracted” to the mortgagee held to include only direct obligations to the mortgagee, and not a note payable to a third party and held by. the mortgagee as collateral security.
    2. Mortgages — enlargement by contemporaneous or subsequent agreement. — The intention of the parties to a mortgage, as expressed by language employed therein, governs, and this purpose cannot be enlarged by parol agreement, made at the time of its execution or one subsequently made to enlarge the indebtedness secured.
    Appeal from White Chancery Court; John E, Martinaau, Chancellor;
    affirmed.

      W. B. Davenport and Bnmdidge <& Neelly, for appellant.

      Jno. D. BeBois and John E. Miller, for appellee.
   Smith, J.

On January 15, 1920, W. E. Rotenberry executed and delivered to Lasswell & Goble his promisr sory note, payable to their order, .for the sum of $750. Lasswell & Coble were indebted to the Union Bank & Trust Company, of Searcy, in the sum of $700, and they deposited the Rotenberry note with the bank as collateral to their own note. Rotenberry paid the bank $100 on his note to Lasswell & Coble, and the bank indorsed a credit therefor on the Rotenberry note, and applied the payment as a credit on the Lasswell & Coble note. At some time it was agreed that the bank should take the Rotenberry note in satisfaction of the Lasswell & Coble note. The exact date of this agreement does not appear.

On December 31, 1921, the bank loaned Rotenberry $2,391, and to secure this loan took two notes from Rotenberry on that date, one for $1,500 and the other for $891. On the date of this loan, Rotenberry executed a deed of trust conveying certain lands to secure the $1,500 note, and on the same date executed a chattel mortgage to secure the $891 note. The bank at that time held the note from.Rotenberry to Lasswell & Coble as collateral to the note of Lasswell & Coble, payablé to its order.

The deed of trust to the land described the $1,500 note, but did not specifically describe any other indebtedness. The chattel mortgage described the note for $891, but did. not describe specifically any other indebtedness. The deed of trust, however, contained this clause: “It is also agreed that the foregoing conveyance shall stand as security for the payment of any extensions or renewals of the whole or any part of said indebtedness by indorsement on the' above mentioned obligation or by the execution of new evidence of indebtedness in lieu thereof; also a-s security for the payment of any other liability or liabilities of the grantor, already or hereafter contracted, to the said Union 'Bank & Trust Company, until the satisfaction of this mortgage or deed of trust upon the margin of the records thereof, with interest at the rate of ten per cent, per annum.” The chattel mortgage contained a clause substantially similar.

On April 8, 1922, Lasswell & Coble brought suit on the note of Rotenberry payable to their order, and caused an attachment to be issued, which was levied on eight bales of cotton and a Ford touring car. The complaint in this case alleged that Lasswell & Coble were the owners of this note, and the testimony shows that the president of the bank authorized the institution of this suit, as agent for Lasswell & Coble, and the bank executed the attachment bond as surety.

The bank filed an intervention in this suit, alleging its ownership of the $700 note of Lasswell & Coble payable to its order, and that the note sued on of Rotenberry to Lasswell & Coble had been placed in its hands as collateral security to the Lasswell & Coble note, and that, by virtue of this transaction, the bank was the owner of the Rotenberry note. There was an allegation that the attached cotton was perishable, and a prayer that the court order it sold, and the circuit judge made this order.

Rotenberry filed a voluntary petition in bankruptcy, and was adjudged a bankrupt, and received his discharge as such. In this proceeding the bankruptcy court ordered the distribution of the proceeds of the sale of the cotton and some strawberries owned by Rotenberry.

An intervention was filed by the bank in that proceeding, in which the bank alleged its ownership of the note from Rotenberry to Lasswell & Coble, and that the same was secured by the chattel mortgage; but the court, after a hearing on that issue, adjudged that the chattel mortgage did not secure the note of Rotenberry to Lass-.well & Coble.

Thereafter the bank brought this proceeding to foreclose the deed of trust given it by Rotenberry, and alleged in its complaint that the note from Rotenberry to Lasswell & Coble was secured by that instrument.

An answer was filed by Rotenberry, denying that the deed of trust secured his note to Lasswell & Coble, and, upon the hearing of this issue, -the court found in favor of Rotenberry, but decreed that the land be sold in satisfaction of the $1,500 note of Rotenberry to the bank, and the bank has appealed from that decree.

"We are of the opinion that the deed of trust did not include the note from Rotenberry to Lasswell & Coble. It is true the bank held this note at the time of the execution of that instrument, but it held it only as collateral; and if the deed of trust was intended to secure this note, language less ambiguous should have been used to express that intent.

The deed of trust does provide that it shall stand “also as security for the payment of any other liability or liabilities of the grantor already or hereafter contracted to the Union Bank & Trust Company until the satisfaction of this mortgage or deed of trust upon the margin of the records thereof, with interest at the rate of .ten per.cent, per annum.’’

This language is unquestionably broad enough to secure any other or additional indebtedness incurred by Rotenberry to the bank, but we think it has reference to such, indebtedness as was directly incurred to the bank, and that this collateral note was not within the contemplation of the parties. A significant fact is that the. bank’s loans were at ten per cent. This was the interest charged in the note of Lasswell & Coble to the bank, and was also the rate specified in both the $1,500 note and the $891 note, and the language quoted above shows that this was the rate which the bank contracted to charge Eotenberry for all sums secured by the deed of trust, whereas the note from Eotenberry to Lasswell & Coble bore interest at the rate of eight per cent. only.

In the case of Martin v. Halbrooks, 55 Ark. 569, thé mortgage there sought to be foreclosed secured the specified sum named “and all other indebtedness which may then (November 1, 1889) be due.” Prior to November 1, 1889, the mortgagee bought a judgment which had b'een recovered against the mortgagor, and sbught to include the amount of this judgment in the indebtedness secured by the mortgage. Chief Justice Cockrill there said that one may execute a valid mortgage to secure a debt to be contracted thereafter, and that it is not necessary that the amount to be secured should be set out in 'the instrument, and that an unequivocal agreement in a mortgage that the instrument should secure all indebtedness of whatever nature that might be due from the mortgagor to the mortgagee, at a future date named, would not be invalid1 between the parties for the want of certainty. But he also said that the words, “and all other indebtedness,” would be construed to mean, in the absence of unambiguous language showing a contrary purpose, indebtedness of the same nature as that specifically described and within the purpose of the mortgage.

•So here we think the language set out' was intended to include all direct obligations of Eotenberry to the bank, of whatever nature, upon all, of which an interest charge of ten per cent, would be - made, and did not include the note from Eotenberry to Lasswell & Coble, which bore interest at the rate of eight per cent, only, and was held by the bank merely as collateral at the time tne deed of trust was executed.

Of course, the intention of the parties at the time of the execution of the' deed of trust, as expressed by the language therein employed, governs, and this purpose cannot be enlarged by parol agreement made at the time of its execution, or one subsequently made, to enlarge the indebtedness which should be secured. Briggs v. Steele, 91 Ark. 458.

We are reenforced in the view announced by the action of the bank in causing suit to be brought on the note of Botenberry to Lasswell & Coble by the last-named parties. The testimony shows that this was done by the bank as the agent and representative of Lasswell & Coble, and that the bank executed the attachment bond. It is not likely that the bank would have instituted suit in the name of Lasswell & Coble, as owners of the note, to enforce payment in their name, if it was the owner of the note and had the note secured both by the deed of trust on the land and the chattel mortgage on the personal property. Cox v. Harris, 64 Ark. 213; Liddell v. Jones, 76 Ark. 344; Jennings v. McIlroy, 42 Ark. 236.

It is true the bank intervened in this "attachment suit, but it did so not to assert any rights under the chattel mortgage, for the intervention made no reference to the chattel mortgage, .but it intervened for the purpose of praying that the attached property be ordered sold under ¿he attachment, and that the proceeds of such sale, be paid it as the holder of the note sued on as collateral to the note of the plaintiffs payable to’its order.

The decree is correct, and is affirmed.


author: Humphreys, J.

text:
    Middleton v. Clardy.
    Opinion delivered December 1, 1924.
    1. Justices op the peace — appeal—necessity of affidavit. — As the statutory affidavit is a prerequisite to an appeal from a justice of the peace, no jurisdiction is acquired in its absence.
    2. Justices of the peace — recovery on appeal bond. — Where an appeal bond filed.on appeal from a justice of the peace to the circuit court made the surety liable for the judgment of the justice of the peace with costs, in the event of the dismissal of the appeal, dismissal of the appeal for want of an affidavit did not preclude recovery on the appeal bond.
    3. Limitation op actions — right op action on appeal bond. — No right of action accrued on an appeal bond filed with a justice of the peace until dismissal of the appeal in the circuit court.
    Appeal from Greene Circuit Court, First Division; G. E. Keck, Judge;
    affirmed.

      Jeff Bratton, for appellant.

      H. W. Applegate, for appellee.
   Humphreys, J.

This suit is predicated upon an appeal bond given to supersede a judgment for $125 obtained' in a magistrate’s court in Craighead County by appellee against the Bear State Life & Accident Insurance Company. The bond was executed on the 21st day of September, 1917, and was signed by appellant as surety. In attempting to appeal the case to the circuit court of said county, Jonesboro Division, said insurance company failed to make an affidavit for an appeal, and, at the instance of appellee, the appeal was dismissed by the circuit court on the 7th day of May, 1921, before any substantive step had. been taken in the case. The bond contained a provision that the surety would pay the judgment of the justice of the peace, tog-ether with the costs of the appeal, in case the appeal should be dismissed. On the 1st day of September, 1923, this suit was instituted in the circuit court of Greene County, First Division, against appellant, the surety in the bond, to recover the judgment, with interest and tbe cost of the appeal.

Appellant filed an answer denving the allegations in the complaint and pleading the five-year statute of limi-tations in bar of the action. The cause was tried upon the pleadings and testimony, resulting in a judgment in favor of appellee for $170.41, from which is this appeal.

Appellant first contends for a reversal of the judg"ment upon the alleged ground that the circuit court of G-reene County had no jurisdiction of the cause. It is argued that, because the appeal was dismissed for the want of an affidavit, a judgment could not be rendered by any court upon the bond. The case of Billingsley v. Adams, 102 Ark. 511, is cited in support of the contention. It was ruled in that case that the court to which the appeal was taken acquired no jurisdiction over the case, because an affidavit is a necessary prerequisite for an appeal. It was not ruled in that case, however, as contended by appellant, that the appellee was without a remedy upon the bond. The bond was a binding obligation, upon which suit might have been brought and a recovery had in any court having jurisdiction of the amount involved.

. Appellant next contends for a reversal of the judgment upon the alleged ground that the action was barred by the five-year statute of limitations at the time it was instituted. This contention is based upon the fact that the suit was brought more than five years after the'bond was executed and filed with the justice of the peace. The right of action on the bond did not accrue on the date that same was executed and filed, but when the case of appellee against the Bear State Life & Accident Insurance Company was dismissed by the circuit court of Craighead County, which was on the 7th day of May, 1921. The instant suit was commenced on September 1, 1923, or within five years after the dismissal of the appeal, and is not barred by the statute of limitations.

No error appearing, the judgment is affirmed.


author: Per Curiam.

text:
    Craig v. Grady.
    Opinion delivered December 8, 1924.
    1. Counties — ratification of unauthorized contract. — Conceding without deciding that a contract of a county court for the' employment of an accountant to audit the books of the county officers was invalid when made because there was no unexpended appropriation, the county court, after an appropriation for general county purposes, had authority to ratify the original contract.
    2. Counties — effect of ratification of contract. — Where a county contract for the auditing o.f the county books was entire, though it provided for partial payment as earned, a subsequent ratification of the contract, originally invalid for. want of an appropriation, invalidated partial payments made before the ratification.
    3. Appeal and error — defense arising after appeal. — Where, after a decree dismissing a taxpayer’s complaint in a suit to enjoin performance of a county’s 'contract, because of its invalidity, such contract was ratified and validated, defendants were entitled to plead such validation in bar of plaintiff’s right to appeal. •
    Appeal from Prairie Chancery Court; John E. Martinecm, Chancellor;
    appeal dismissed.

      Gregory é Holtsendorff, for appellant.

      Coleman, Robinson & House, for appellee.
   Per Curiam.

The county court of Prairie County on October 11, 1924, entered into a written contract with an accountant to audit the books of all .the county officers, and the contract specified the amount and terms of payments to be made to the accountant as compensation for the services rendered. Appellant is a citizen and taxpayer of that county, and he instituted an action in the chancery court to restrain the county judge and the county clerk from proceeding with the performance of said contract.

It is alleged in the complaint that, at the time the contract was entered into between the county and the accountant, there was no unexpended appropriation for the payment of general county expenses, and that the county had no authority to enter into the contract, but that the accountant had begun work under the contract, and that the county court had made an allowance of $440.51, payable out of the general county funds, to cover the first installment of the payments under the contract. The prayer of the complaint was that the county judge and the county clerk, and also the county treasurer, be enjoined from further proceeding towards the performance of the contract or payment of compensation to .the accountant thereunder.

An answer was filed, and the cause was heard on an agreed statement of facts to the effect that there was no specific appropriation made by the quorum court of Prairie County for the purpose of paying for the auditing of the books of county officers, and that the appropriation for general county purposes for the current fiscal year had been entirely expended. The chancery court rendered a decree dismissing the complaint for want of equity. An appeal has been prosecuted to this court, and appellant applies for a temporary injunction to restrain the officers from proceeding under the contract during the pendency of this appeal.

Appellees have brought into the record here copies of the record of the county court showing that, since the rendition of the decree below, the quorum court of Prairie County, at the regular October term, has made an appropriation for general county purposes, which is unexpended, and that the county court has, at a regular session, made an order ratifying and approving the original contract of October 11, 1924. This additional record is pleaded in bar of appellant’s right to prosecute the appeal on the ground that the question involved has become moot, in that the contract has been ratified, and that there has been an appropriation of funds bv the countv court to pay for the services rendered thereunder by the accountant.

Conceding, without deciding, that the contract was void and unenforceable at the time of its execution because of the fact that there was no unexpended appropriation of funds,.the county court had full power, after the appropriation bad been made by tbe quorum court, to enter into a contract with tbe accountant to audit tbe books of tbe several county officers, and tbe ratification of the original contract was valid for tbe reason that it was tantamount to making a new contract. Leatham & Co. v. Jackson County, 122 Ark. 114.

Tbe statute (Crawford & Moses’ Digest, § 1982) does not require specific appropriations .other than those mentioned, but there is a clause in tbe section of tbe statute referred to above providing for an appropriation for “such other expenses of county government as are allowed by tbe laws of this State,” hence an appropriation under this bead is sufficient to embrace tbe expense of auditing tbe books of tbe county officers. If tbe original contract was void, it was merely because there was no appropriation, and, since there was authority on tbe part of tbe county court at the time of tbe ratification to execute a new contract, such ratification gave validity to the contract and made it enforceable. Tbe fact that a warrant was issued to tbe accountant for compensation earned under tbe original contract does not render the ratification ineffectual. Tbe contract with tbe accountant was an entire one, and, notwithstanding it provided for partial payments as earned, tbe ratification reached to tbe whole contract and validated tbe compensation already earned. To the extent of services already performed and compensation earned, tbe effect is tbe same as if tbe work was performed after ratification.

It follows that tbe question originally presented in tbe case has become moot on account of the- subsequent action of tbe county court and quorum court, and appellees have a right to plead such further proceedings in bar of appellant’s, right to prosecute the appeal. Church v. Gallic, 76 Ark. 423.

Tbe petition for injunction is denied, and the appeal is dismissed.


text:
    Griffin v. Union Trust Company.
    Opinion delivered December 8, 1924.
    1. Wills — exclusion of evidence. — In a will contest where the court excluded testimony as to injuries suffered by testatrix, several years before her death, as being too remote, but later changed the ruling an4 admitted similar testimony, failure of appellant to renew the offer precludes appellant from insisting that the court erred in excluding the testimony.
    2. Evidence — statement of testatrix. — In a will contest, evidence as to statements made by testatrix to others concerning various injuries suffered by her and claimed to have affected her mental ■condition was hearsay.
    3. Appeal and error — harmless error. — The exclusion of immaterial testimony is harmless error.
    4. Wills — mental attitude of testatrix toward relatives. — In a, will contest based upon charges of undue influence and mental incapacity, testimony that testatrix had complained of the selection 'by her sister of a burial place for a favorite niece who had been named by her as principal beneficiary .in a prior will was competent as tending to show her mental attitude towards her relatives. ;
    5. Evidence — opinion of nonexperts. — A nonexpert witness may give his opinion as to the mental capacity of a testatrix, after stating the facts upon which such opinion is based.
    6. Evidence — opinions of nonexperts. — Jn a will contest, non-expert witnesses who have known a testatrix for many years and have had opportunities to observe her conduct, are competent to express an opinion as to her mental capacity.
    7. ■ Trial — construction of charge as a whole. — In a will contest, based on charges of undue influence and mental incapacity, an instruction dealing with undue influence and mental incapacity in separate sentences, each being a complete statement, is not objectionable, because each ignored the other issue, as the instruction should be read as a whole.
    8. Wills — old age and physical incapacity. — A testator’s old age, physical incapacity and partial eclipse of the mind will not invalidate his will if he has -sufficient capacity to remember the extent and condition of his property and who are his beneficiaries, and to appreciate the deserts of his relatives.
    9. Wills — physical suffering. — Physical suffering does not render a testator incompetent to make a will unless it renders him incapable of making a will and of properly disposing of his estate.

      10. Wills — modification of instruction. — In a will contest, a requested instruction that a mere suggestion to the testatrix was sufficient to constitute undue influence was properly refused as being on the weight of the testimony.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Mehaffy, Bonham é Mehaffy., for appellant.
    The court erred in excluding testimony offered by tlie contestant as to undue influence. 29 Ark. 156; 103 Ark. 236; Alexander on Wills, vol. 1, p. 361. The court erred in admitting testimony of nonexpert witnesses as to the sanity or insanity of Mrs. Wells. Alexander on Wills, vol. 1, p. 386; 36 G. E. 634. The court erred in refusing to give instructions requested by the contestees on the question of undue influence and mental capacity, as set out in the opinion. 29 Ark. 151; 87 Ark. 243; 37 Ark. 164; 90 Ark. 426; 36 Pac. 925; 104 N. W. 1087; 83 N. E. 766; 57 S. E. 898.

      W. H. Martin and T. E. Helm, for appellees. •
    The court did not err in permitting the • testimony as to the sanity of Mrs. Wells to go to the jury. 72 So. 395; 156 Cal. 230; 104 Pac. 443; 15 Ark. 601; 114 Ark. 69; 122 Ark. 417.
   McCulloch, C. J.

This is a contest, of the last will and testament of Mrs. E. G. Wells. The judgment of the circuit court of Pulaski County, rendered upon the verdict of the trial jury, sustained the validity of the will, and the contestants have appealed.

The testatrix, Mrs. Wells, resided in the city of Little Rock, and died here on August 291, 1922, the testamentary paper in controversy having been executed by her in due form of law on July 24,1922. Mrs. Wells was unmarried at the time of her death, and childless, and she ■left as her heirs at law three sisters, a brother, a niece— the daughter of a deceased brother — 'and five others, the children of another deceased brother. She bequeathed the sum of one dollar to each of her said heirs, and the remainder of her estate to Mrs. Minnie Jean Waller, who was not related to the testatrix by blood or marriage, but was merely a friend of long standing and whom, according to the testimony, the testatrix held in affectionate regard. Mrs. Wells was sixty-six years of age at the time of her death, and had resided in Little Rock more than forty years. She was a stenographer by profession, and followed that work-in -different lines for many years. She did stenographic work in several business' institutions, covering a period of many years, and for a number of years before her death, in addition to working as a stenographer, she operated a school for the purpose of instructing others in the art. She accumulated by her own work and thrift property of considerable value, the property consisting of both real estate and personalty.

At the time of the execution of the will Mrs. Waller, the chief beneficiary, was out of the State, and did not return until after the death of the testatrix.

Mrs. Wells became seriously ill a short time before the execution of the will, and was confined to her room in her own home. She was nursed by Mrs. Scroggins, the-mother of Mrs. Waller, and was also attended by Mrs. Brooks, -a sister of Mrs. Waller. Physicians also attended her regularly, and they testified in the case with reference to her mental condition at or about the time of the execution of the will and from then on up to the time of her death.

The contest is based on the charge of undue influence and mental incapacity of. the testatrix. The testimony in the case is voluminous, hut it may he said, speaking generallv, that it was conflicting upon both of the issues involved. A number of witnesses, including two of the contestants, a sister and a brother of the testatrix, testified that they were long and intimately acquainted with the testatrix, and that she was of low mentality at the time of the execution of the will. and. in their oninion, not of sufficient mental capacity to execute a will. On the other hand, the witnesses were very numerous on the part- of the contestee. who testified to a long acquaintance with the testatrix, of her successful business career, her strength of mind and' her admirable business qualifications, and that she was fully capable of transacting business and of executing any kind of conveyance up to the time of her death. Physicians who attended the testatrix also testified that her mental condition was sound.

We are of the opinion that the evidence was abundantly sufficient to sustain the finding of the jury, both as to the charge of undue influence and lack of mental capacity.

There are numerous assignments of error with respect to the rulings of the court upon the admissibility of testimony.

It appears from the testimony that Mrs. Wells underwent a serious surgical operation in the year 1885, that she jumped from a train in the year 1900 and sustained a fracture of her hip, and that, some time thereafter, she sustained a fracture of one of the bones of her arm. There is also testimony that she was afflicted with cancer and was operated on during the year 1918, or about that time. There is testimony to the effect that all of these various troubles affected her health, and that she suffered a great deal.

The first witness introduced was Mrs. Shelton, who was a sister of Mrs. Wells, and is one of the contestants. She testified that Mrs. Wells was-operated on about the year 1885, and that she had never fully recovered from that operation. She mentioned the fact of Mrs. Wells jumping from the train and breaking her hip in the year 1900, and that she nursed her through that period, but the court, excluded those statements. She also offered to testify that the testatrix had told her about breaking her arm, and that was excluded on the ground that it was hearsay. Those rulings are both assigned as errors. The theory of the court in excluding the testimony about the broken hip was that it was too remote and was not connected up by showing that its effect upon the health and mental condition of the testatrix continued up to the time of the execution of the will. The other statement was excluded for the reason that it was merely the statement of the testatrix and constituted hearsay, and fell within the rules of evidence excluding that kind of testimony. The court subsequently permitted appellant to prove by two other witnesses the fact that Mrs. Wells jumped from the train and broke her hip in the year 1900, and suffered for a long time thereafter from the effects of this accident. This testimony was undisputed, and no prejudice could possibly have resulted in the court’s ruling-in refusing- to permit Mrs. Shelton to testify to that fact. When it was connected up by other testimony tending to show repeated injuries and" illness on the part of the testatrix which might have affected her mental capacity, the court permitted everything- that had happened to her for a long time past, including the operation in 1885 and the fractured hip in 1900, to be proved by the witnesses, and their opinions were given as to the probable effect upon her mental capacity. To say the least of it, the court’s ruling on this subject constituted no more than a change in the rulings of the court in permitting testimony to be introduced, and, if appellants desired to take advantage of that change 'after the court had ruled the testimony to be competent, another offer should have been made to introduce it. The failure to do this precludes appellants from insisting- now that the court erred in excluding the testimony originally.

The other excluded statement as to what the testatrix told the witness concerning the various injuries was mere hearsay, and properly excluded. In Mason v. Bowen, 122 Ark. 407, after full consideration of the questions involved, we made the following statement of the law which is applicable to this as well as other rulings of the court:

. “It seems to be well settled, both by text-writers and the decisions of courts of the various States, that the statements and declarations of a testator, whether made before or after the execution of a will, are not competent as direct or .substantive evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will. When the condition of the testator’s mind is the point of contention, statements or declarations of the testator are received as external manifestations of his mental condition and not as evidence of the truth of the things he states. If offered to prove an external fact, such as undue influence or fraud, such statements or declarations are merely hearsay and are liable to all the objections to which mere declarations of third parties are subject.”

Now, the fact that Mrs. Wells received these various injuries may have had some influence upon her mental state, and proof of those facts was competent as bearing on that question, but the facts could not be established by hearsay testimony, and the statement of the testatrix herself concerning those facts fell within the rule against hearsay testimony.

The contestee introduced as a witness Mrs. Auten, who was a friend of Mrs. Wells, and on cross-examination she was asked about certain statements that she had made to another witness, Mrs. Bracy. She stated that she had talked with Mrs. Bracy about Mrs. Wells and stated that the latter was eccentric; said she did not remember telling Mrs. Bracy about the conduct of Mrs. Wells concerning the preparation of a chicken for food. Her statement was somewhat indefinite as to her recollection of the conversation with Mrs. Bracy, but she admitted that she had talked to Mrs. Bracy and expressed the opinion that Mrs. Wells was somewhat eccentric in her conduct. Appellants introduced Mrs. Bracy for the purpose of contradicting Mrs. Auten, and she testified, without objection, as to what Mrs. Auten said about her opinion of Mrs. Wells’ mental condition and about some eccentricities manifested in the dressing of a chicken. The witness, without being asked on the subject, commenced to tell about what Mrs.'Auten said concerning- the conduct of Mrs. Wells in the placing of a rug on the floor, and the court excluded that. The testimony of Mrs. Aiuten as -abstracted by aunellants does not disclose that anything was asked her about her alleged statement to Mrs. Bracy ooucerninir the rusu Of course, it was not comuetent to ask Mrs. Bracy- about any statement the foundation of which was not laid by asking Mrs. Anton concerning the •matter. However, we do not think there could have been any prejudice, even if the court had erroneously excluded the statement concerning Mrs. Wells’ conduct about the rug. The witness, Mrs. Bracy, was permitted to tell all about her conversation with Mrs. Auten and the latter’s statement concerning eccentricities of the testatrix, and the statement about the rug could have added nothing to the- contradiction of the witness. We cannot see any possible error in the ruling of the court in this regard.

It is disclosed in the testimony that Mrs. Sheldon’s daughter, Elaine, a niece of the testatrix, died in the year 1918, and that, prior to that time, the testatrix had made a'will leaving the bulk of her estate to Elaine. Mrs. Waller, the contestee, testified over objections of appellants that Mrs. Wells made a statement to her complaining about the act of her sister in selecting a burial place for the body of Elaine, and said that if they, meaning her sisters, “didn’t want Elaine’s body, they could have given it to me.” It is insisted that this testimony was not competent. We think it was competent as a declaration of the testatrix tending to show her mental attitude towards her relatives, who would otherwise be the natural objects of her bounty. The testimony comes within the rule stated in Mason v. Bowen, supra.

There are numerous assignments of error with respect to the action of the court in permitting nonexpert witnesses to testify concerning the mental capacity of the testatrix. All of the witnesses in question were acquaintances of long standing and had opportunities for observing the mental condition of the testatrix, but in giving their testimony they first stated their knowledge of and length of acquaintance with the testatrix, where they had known her, what their opportunities were for observing her conduct, and they were then permitted to state their opinions as to her mental capacity. The decisions of this court on the subject are harmonious, and each is to the effect that a nonexpert witness may testify as to his opinion after stating the facts upon which the opinion is based, so that the jury may determine what weight to give to the testimony. Kelly’s Heirs v. McGuire, 15 Ark. 555; Bolling v. State, 54 Ark. 588; Shaeffer v. State, 61 Ark. 241; Green v. State, 64 Ark. 523; Byrd v. State, 76 Ark. 286; Williams v. Fulkes, 103 Ark. 196; Eminent Household Col. Woodmen v. Howle, 124 Ark. 224. The rule on this subject was stated by Judge Battle in the case of Shaeffer v. State, supra, as follows:

“When a person’s mental condition or capacity is in question, the opinions of witnesses who are not experts as to such capacity are only admissible in evidence when taken in connection with the facts upon which such opinions are based. Before such evidence can be admissible, ‘the specific facts upon which the opinions are based must first be stated by the witnesses, or their testimony must show that such intimate and close relations have existed between the party alleged to be.insane and themselves ' as fairly to lead to the conclusion that their opinions will be justified by their opportunities for observing the party. ’■ In other words, the opinion of such a witness is not admissible in evidence until it be first shown by his own testimony that he has information upon which it can reasonably be based. Whether the information is sufficient for that purpose is a question for the court to decide before it can be admitted. After its admission, the weight to be given it is determined by the jury. ’ ’

The decisions in all of the other cases are in harmony with the above statement. In the early case of Kelly’s Heirs v. McGuire, supra, on the subject of the admissibility of testimony of nonexpert witnesses, the court said:

“We found our judgment on facts, circumstances, and acts detailed by the witnesses — holding, at the same time, opinions to be competent in all cases where the object is to prove capacity or incapacity to make a contract, where" the facts or circumstances are disclosed on which the opinion is founded. There are strong reasons for it. Human language is imperfect, and it is often impossible to describe in an intelligible manner the operation of the mind of another. We learn its conditions only by its manifestations, and these are indicated not alone by articulate words, but by signs, gestures, conduct, the expression of the countenance, and the whole action of the man. Nor is there any danger from such opinions, when the reasons for them are disclosed. The value and force of the opinion depends on the general intelligence of the witness, the grounds • on which it is based, the opportunities he had for accurate and full observation, and his entire freedom from interest and bias.”

All of the witnesses to whose testimony objection was made were persons who had known Mrs. Wells for many years, had employed her or been associated with her in her employment, and had had opportunities to observe her conduct, and they were competent witnesses to express an opinion as to her mental capacity. It was not essential that they should be able to state facts and circumstances which would demonstrate to the jury the degree of mental capacity of the individual in question, but the bare fact that her conduct under their observation had not been such as to affirmatively demonstrate lack of mental capacity was sufficient to justify them in the expression of an opinion. We are of the opinion that the testimony of each of - the witnesses in question falls within the decision of this court holding such testimony to be competent, and that no error was committed by the court in this regard.

Error of the court is assigned in giving the following instruction at the instance of the contestees:

“The issue to be tried in this case is whether the instrument of writing offered for probate is the last will and testament of Mrs. E. G-. Wells. Under the laws of Arkansas every person of the age of twenty-one years and over, of sound mind and disposing memory, may by last will and testament devise all of his estate, real and personal, as he sees fit. He may discriminate between those equally related to him, or may dispose of his entire estate entirely to strangers, to the exclusion of all relatives, and the motives of partiality, affection, dislike or resentment by which he may be influenced will not invalidate the will if they are not the result of undue influence as defined in these instructions. If he has the mental capacity to make a will, or is not under undue influence as defined in these instructions, it does not matter that he is controlled by motives which are capricious, frivolous or revengeful. You cannot reject this will solely because you may believe it to be unnatural or unjust. The fact that it leaves the estate to a friend outside the family and excludes the relatives does not raise a presumption of lack of capacity. ’ ’

The objection made to this instruction is that the sentence on the subject of undue influence ignores the issue of mental capacity, and that the sentence devoted to the subject of mental capacity ignores the question of undue influence. Answering these objections, which are the only ones made to the whole of the instruction, we are clearly of the opinion that the instruction is not open to these objections. This instruction must be read as a whole for the purpose of determining its meaning, and it clearly dealt with both subjects involved in the attack upon the validity of the will, and neither of the issues were excluded or ignored. 'It would be a very narrow view of the matter to say that a jury composed of intelligent men would construe either of the sentences in the instruction as excluding the issues not mentioned therein. Each sentence dealt with a particular issue and was a complete statement on that subject, but, necessarily, the two sentences embraced in a single instruction must be read together, and it is not conceivable that the jury misunderstood them or treated them as being conflicting or antagonistic.

■Separate objections were made to the following instructions, given at the instance of the eontes'tees:

“3. Old age, physical incapacity and partial eclipse of the mind will not invalidate a will, if the testator has sufficient capacity to remember the extent and condition of -his property without prompting, to comprehend to whom he is giving it, and be capable of appreciating the deserts and relation to him of others whom -he excluded from participating in his estate. He is not required to do all those things, but .should have capacity to do them.
“4. Physical suffering, no matter how intense or how long its duration, will not render one incompetent to make a valid will, so far as mental capacity is concerned, unless it has so affected his mind as to render him incapable of comprehending the act of making the will and of remembering his relatives and their deserts and appreciating the same, and of remembering and disposing of his estate as explained by the other instructions herein.”

The giving of each of these instructions is assigned as error, but we are of the opinion that they are both correct declarations of the law on the subjects mentioned, and there is no good reason shown in the argument why they should not have been given.

Appellant requested the court to give instruction No. 7, which is as follows:

“You are instructed that if you believe from the evidence that Mrs. Wells, at the time she executed the will now in question, was feeble in body and mind from sickness, old age, or otherwise, and, while in this condition, Mrs. Scroggin, the mother of the beneficiary under the purported will, suggested to her that she should leave her property to Mrs. Waller, or if the said Mrs. Scroggin had such influence over her because of her bodily and mental weakness and through this influence induced her to make said will, or if you believe from the evidence that the will was the result of undue influence exerted by the said Mrs. Scroggin, and that at the time of the execution of said will the said Mrs. Wells was not a free agent, but was under the undue influence of said.Mrs. Scroggin, then you should find against the will.”

The court modified the instruction by striking out the words, “and while in this condition Mrs. Scroggin, the mother of the beneficiary under the purported will, suggested to her that she should leave her property to Mrs. Waller.” Exceptions were saved to the ruling of the court in making this modification, and the ruling is assigned as error. The modification by striking out the words was correct, for those words were connected with the succeeding ones by the 'conjunctive word ‘ ‘ or, ” and, if left in, the instruction would, in effect, have told the jury that a mere suggestion of the mother of the beneficiary was sufficient to constitute undue influence, and this would have been an instruction upon the weight of the testimony. The instruction was complete without these words, and fairly 'submitted to the jury the issue of undue influence by Mrs. Scroggin, the mother of Mrs. Waller, the contestee.

There are other assignments of error in regard to the court’s charge which we do not deem of sufficient importance to discuss.

The evidence was sufficient to support the verdict of the jury upholding the will, and the issues were correctly submitted to the jury.

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


text:
    Sledge & Norfleet Company v. Mann.
    Opinion delivered December 8, 1924.
    1. Trial — effect of verdict. — In an action on a note where defendants relied solely upon a counterclaim in an amount exceeding the note, a verdict finding for the defendants and for the plaintiffs on the counterclaim, necessarily implied that defendants’ liability on the note was counterbalanced by plaintiff’s liability on the counterclaim, and therefore that plaintiff was not entitled to a judgment.
    2. Trial — waiver of objection to verdict. — Objection to the form or language of a verdict or to its uncertainty should be made at the timé of its rendition and before the jury is discharged.
    3. Appeal and error — objection to form of verdict. — It is too late to object to the form or language of a verdict if the substance and effect can be fairly and definitely interpreted from the language used. .
    4. Appeal and error — conclusiveness of verdict. — A finding of the jury on conflicting evidence will not be disturbed.

      5. Brokers — duty to follow instructions. — A broker is bound to make sales of cotton in accordance with the express directions of the owners, and, in the absence of instruction, to exercise ordinary care to make sales to best advantage.
    6. Brokers — liability for negligence. — Even if cotton is shipped to a broker in pledge for security of a debt to the broker, the broker is liable for negligence in failing to handle and sell it advantageously.
    Appeal from St. Francis Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Mann & Mann, for appellant.
    "Where one indorses the note of another prior to the delivery of the same to the payee and credit is extended on the faith of the indorsement, such indorser will be treated as principal and equally liable with the other makers. 77 Ark. 53; 3 L. E. A. (N. S.) 1199; 3 E. C. L. 1120; 80 Ark. 285. This rule has not been changod by the Negotiable Instrument Act. C. & M. Digest, §§ 7829-30 and 7832; 146 Ark. 186.

      Church <& Gcmna/way and C. W. Norton, for appellee.
    Where the form of the verdict or judgment is objectionable, or if the proper judgment is not rendered upon the verdict, such objection should be pointed out to the lower court so the errors might be there corrected. 28 Ark. 188; 26 Ark. 536. It is too late to ask for correction here for the first time, 68 Ark. 71; 56 S. W. 532. Eecovery cannot be had against an accommodation indorser as maker, even if the petition charges him to be a maker, and parol evidence showing him to be such was admitted without objection. Brannan on Uniform Negotiable Instruments Law, § 63. The court cannot give the instrument other legal effect than the statute says shall be given to it. 180 S. W. 561. The intent to be bound in some other capacity must be indicated in the indorsement, and cannot be .shown by parol. 143 Ky. 754; 137 S. W. 790; 126 Md. 474; 95 Atl. 62; 179 S. W. 721.
   McCulloch, C. J.

Appellant, a business corporation, domiciled and doing business in the city of Memphis, Tennessee, instituted this action against appellees, Arthur Mann and J.. W. Roane, copartners conducting farming operations in Arkansas under the firm name of Mann & Company, and appellee Mary Lee Mann, the wife of Arthur Mann, to recover a balance of $4,777.84, alleged to be unpaid on a promissory note executed by appellees to appellant, dated April 14,1919, and payable November 1 thereafter, for the sum of $10,000. The note, a copy of which is exhibited with the complaint, was signed by appellees Mann and Roane and was signed on the back by Mrs. Mann under the following indorsement: “I hereby bind my separate estate for payment of this note. Demand and notice of protest waived.” Appellees filed an answer denying the execution of the note, but this plea was abandoned at the trial, and appellees relied, so far as concerned the makers of the note, solely on a counterclaim for damages alleged to have been sustained by reason of wrongful failure of appellant to sell cotton shipped by appellees to appellant for sale as broker. It was alleged in the counterclaim that, at the time of the execution of the note, appellant held as broker a number of bales of cotton of the crop of the year 1918, owned and shipped by Mann & Company, and that the crop of the year 1919 was also shipped, and that appellant refused to comply with the express directions of the owners to sell the cotton, thereby losing the benefit of the advanced prices, to the damage and injury of appellees in the sum of $9,000. The prayer of the cross-complaint was for the recovery from the appellant of said sum.

Mrs. Mann pleaded as additional defense that she was an accommodation indorser and .that there was a failure of demand and notice which discharged her from liability. .

At the conclusion of the trial of the cause the jury returned a verdict in the following form: “We, the jury, find for the defendants, Mann & Co. and Mrs. Mann. We, the jury, find for the defendants, Sledge & Norfleet, ou cross-suit.”

In the motion' for a new trial there are numerous assignments of error with regard to the charge of the court and the rulings on the admissibility of testimony, but all. of those assignments are abandoned here, and we are not asked to consider them.

So far as concerns the liability of appellees Mann and Roane, counsel for appellant rely, as grounds for reversal, solely on the contention that, under the verdict of the jury, there should have been a judgment rendered in favor of appellant against those two appellees for the amount of the unpaid balance on the note. Counsel contend that the effect of the verdict necessarily implied a rejection of the counterclaim of appellees, and that, inasmuch as liability on the note was not disputed other than the counterclaim which extinguished it, judgment should have been rendered by the court on the verdict in favor of appellant. We cannot agree with counsel that such was the necessary effect of the verdict, for that interpretation of its language would render it inconsistent and contradictory. There is a direct and affirmative finding against appellant for recovery of the amount, which necessarily implies a finding that the liability had been extinguished, and this can only mean that it was done by the application of damages which appellees suffered by reason of the failure of appellant to sell the cotton as directed. In other words, the language of the verdict, when each part is construed in harmony with the other part, means that the jury awarded damages on the counterclaim of appellees for a sum equal to the unpaid balance on the note, and no more. This is the reasonable interpretation to place on the language of the verdict, and it is our duty to harmonize the different parts of a verdict if -it can be done reasonably consistent with the language used. If objection was to be made to the form of the verdict, or if it was desired to make the language more explicit, the objection should have been properly made at the time the verdict was rendered and before the discharge of the jury. It is too late now to make objection to the mere form of the verdict when its substance and effect can be fairlv and definitely interpreted from 'the-language used. Johnson v. Barbour, 28 Ark. 188; Hanf v. Ford, 37 Ark. 544. The evidence is sufficient to sustain the verdict as thus interpreted, as the jury might have found from the evidence that the claim of appellees for damages was excessive, but that they were entitled to recover an amount of damages equal to the unpaid- balance on the note so as to extinguish the liability on the latter.

It appears from the testimony that, at the time of the execution of the note, appellant had on hand some of the cotton of appellees from the preceding year, 1918, and that the crop of 1919 was also shipped to appellant to handle as a broker. Appellees introduced testimony to the effect that Mr. Mann, one of thé appellees, gave positive instructions to appellant to sell the cotton and not hold it. This was contradicted by the testimony introduced by officers and agents of appellant corporation, who testified that no such directions were ever given; and that they exercised their best judgment in handling and selling the cotton. Sales were made from time to time, but all of the cotton was not finally disposed of until some time during the year 1921. There is also a conflict in the testimony as to the grade of the cotton, but all of these conflicts were settled by the verdict of the jury in favor of appellees.

The undisputed proof shows that cotton constantly declined after the spring of 1920. At the time the bulk of the cotton of the crop of 1919 was shipped to appellant the price was very high, and appellees claimed and testified that their cotton was of good grade, and that they gave specific directions to appellant to sell it. The cotton was not sold at once, but, as before stated, some of it was kept on hand for about a year while the price was declining. The evidence is undisputed that the cotton market was dull all of this time, and, as before stated, that the price was constantly declining, but, if appellant failed and refused to comply with the directions of appellees to sell, as the jury must have found by their verdict, it' did so at appellants’ own peril. The cotton was shipped to appellant, not in pledge for the security of debt, but as broker, and it was its duty to make sales in accordance with the express directions of the owners, and, in the absence of express directions, to exercise reasonable and ordinary care to make sales to the best advantage. Even if the cotton was shipped in pledge for the security of debt, appellant would be liable for any negligence in failing to handle and sell the cotton advantageously. In either event the evidence was sufficient to warrant the finding of the jury.

It is difficult to determine here upon what basis the jury figured out the damages in precisely the amount of the liability on the note, but we cannot say that it was impossible for the jury to have reached that result in their computation of damages. There is testimony as to the price of cotton from time to time, but there was no inflexible rule by which the jury must have fixed the damages with.unerring accuracy, and it was to some extent a question of judgment as to how much the damages amounted to for delay in disposing of the cotton while the price was constantly declining. We are unable to say that the verdict fixing the amount of damages is without testimony to support it.

It is unnecessary to discuss the additional defense made by Mrs. Mann, for the finding of the jury that liability on the note had been extinguished by the claim of damages made by the other appellees necessarily inured to the benefit of Mrs. Mann. If liability on the note had thus been extinguished, it is unimportant whether or not Mrs. Mann was 'originally liable on her indorsement.

Judgment affirmed.