author: Hart, J.,

text:
    New Union Coal Company v. Sult.
    Opinion delivered January 31, 1927.
    1. Master and servant — safe place to work. — A mine owner owes to its employees in its mine the duty to use ordinary care to furnish a safe place to work in and keep the place in a safe condition.
    2. Master and servant — safe place to work. — The owner of a mine is bound to exercise ordinary care, even if props have not been demanded, to discover the condition of the mine, and, even if props have not been demanded, to discover the condition of the roof and to keep same in reasonably safe condition for its employees to work in the mine.
    3. Master and servant — safe place to work — exception to rule. —The rule that a mine owner owes his employees the duty to use ordinary care to furnish a safe place to work in is subject to an exception where the injuries result from changed conditions brought about by the servant in the course of his work.
    4. Master and servant — safe place to work. — In an action by a coal loader in a mine for injuries sustained by a rock falling through a roof of the mine, alleged to have been caused by a crack in the roof or by defective propping, defendant was under the duty to furnish plaintiff a safe place while engaged in his work; plaintiff not being required to inspect the roof to see if it is safe for him to begin work.
    5. Master and servant — safe place to work. — In an action by a coal loader against a mine operator for injuries sustained by a stone falling through the roof of the mine, evidence showing that the fall was caused either by an old break in the roof or a defective propping due to negligence of fellow-servants held to sustain a recovery by plaintiff.
    6. Master and servant — negligence of fellow-servant. — Where it was the duty of machine operators in a mine, who cut the ground under a vein of coal, to prop the roof to make working conditions safe for loaders who were to follow them, failure of the operators to perform their duty constituted negligence on the master’s part.
    Y. Master and servant — safe place to work. — In an action by a loader in a coal mine for injuries from a rock falling from a roof insufficiently propped, the fact that the rule requiring the machine operators to prop the roof was adopted under a contract between the employer and the employees, and not under a rule voluntarily prescribed by the employer, does not relieve the employer from liability for the negligence of the machine operators.
    8. Master and servant — duty to make rules. — The operator of a coal mine owes to its employees the duty of making rules necessary to insure the safety of employees, and to inform the employees of such rules.
    9, Master and servant — independent contractors.' — Machine operators employed 'by a mine owner, subject to its control as to the manner of doing the work, are not independent contractors.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge.;
    affirmed.
    STATEMENT OF FACTS.
    This action was instituted by John E. Suit against' the New Union Coal Company to recover damages for injuries received by him by a rock falling from the roof upon him while working as a loader in a coal mine.
    The negligence alleged is that the defendant permitted its mine roof, in the room where the plaintifF was at work loading coal, to become unsafe. The negligence alleged is that the defendant failed to properly cap, brace and prop the roof of the mine at the place where the plaintiff was working’. The defendant denied the allegations of the complaint, and pleaded assumed risk.

      At the time of his injury, on October 15,1923, John E. Suit was an experienced loader and was a member of the United Mine Workers, District 21. There was a contract between District 21 and the New Union Coal Company. The contract provided that the machine crew shall be composed of two men. Another paragraph of the contract reads as follows: “It shall be the duty of the machine crew to undermine the coal, mining same as near bottom of coal as practical; all machine cuttings and other dirt created by the operation of the machine shall be moved by the loader, leaving the place cleaned up ready for the machine, and removing all such dirt to a distance of not less than four feet from face of coal and five feet from the roadbed. If the' loader leaves any excess dirt, the company shall clean up same, charging such expense to the loader leaving said dirt. It shall he the duty of the machine crew to set such "props and sprag such coal as may be necessary to make the roof reasonably secure and safe immediately after the coal has been cut.”
    Under the head of “Rules for Loaders,” we copy the following*: “It shall be the duty of the loader to build packwalls, remove coal sprags to drop the coal, and set such permanent props to make the place safe as shall not impede the operation of the machines. He shall also set temporary props to make the place safe prior to the operation of the machine. He shall also clear his place of all draw slate and clod prior to the operation of the machine.
    “Note: In case any loader does not. clean up the place in which he is working, as prescribed in the above paragraphs, the company shall clean up the same at the expense of said loader. ”
    The length of the block of coal in the room where the plaintiff was working when injured was fifty feet, and the vein was about twenty-eight inches thick. A machine operated by two men is used to cut away the earth at. the bottom of the vein of coal. The idea is to cut as near the bottom of the vein of coal as you can without cutting the coal itself. When the machine cuts under the coal, it sometimes cuts in the coal and sometimes the earth underneath. Sometimes it cuts a little in both. The ordinary depth of a cut is about thirty inches. The machine cuts the earth and the coal for a depth of from two to four inches, and the machine crew leaves the dirt, muck and coal from the cut on the floor. Sprags are then placed in the opening to hold up the vein of coal. A “sprag” is a piece of timber used as a prop. As soon as the cutting in the face of the coal is made by the machine, props are placed on the floor of the mine extending to the roof to hold it iip while the coal is being mined and loaded in the car. It is the duty of the machine operators to set the props about three feet apart and about four or six inches from the face of the coal. They take a capboard and rake away the cuttings and set the props on the solid bottom of the mine. It is made tight with capboards. Sometimes capboards are placed both on top and beneath the props. The props are wedged in tight to hold up the rocks in the roof of the mine and to keep the coal from knocking them over when the sprags are pulled out by the loader for the purpose of allowing the vein of coal to fall down. When the loader g’oes in the room for the purpose of loading the coal, it is his duty to clean up after the machine crew. He takes the cuttings and piles them up against the props where they had been placed by the machine operators on the previous trip. The “gob” is a space between the face of the coal and where the props had been set by the machine operators on the previous trip. It would (be about thirty inches wide and between thirty and thirty-four inches high. When the loader goes into the room, it is his duty to place the cuttings from the machine, which consist of earth, muck, rock and coal, into the part of the gob opposite the face of the coal. In other words, it is piled into a wall on the opposite side of the gob from where the loader is working. So, too, it is the duty of the loader to pile up any props that may have been left by the machine men. When this has been done, he begins his work as loader. He accomplishes this by pulling out the sprags so that the vein of coal will fall down and break into pieces on the floor of the gob. ' The loader then puts the coal in a car.
    The plaintiff had loaded all the coal on the right-hand side of the room before he was injured. When he commenced to work on the left-hand side, he pulled out the sprags, and this caused the vein of coal to fall down. A large rock in the roof of the mine fell upon the'plaintiff, knocking him down and seriously injuring him. He was rendered unconscious for a time. The rock in question was about five feet long, three feet wide and seven inches thick at one end. It tapered off to a feather-edge of the end of the rock near to the gob wall. The thick end of the rock was near to the face of the coa.1 where the plaintiff was working. There was evidence adduced by the plaintiff tending to show that there was an old crack in the rock next to the gob wall. The evidence for the plaintiff also showed that the props where he was working were set in a negligent manner by the machine operators. The evidence on this point will be stated more fully under an appropriate heading in the opinion.
    The evidence for the defendant tends to show that there was no negligence on its part whatever.
    The jury returned a verdict in favor of the plaintiff in the sum of $1,000. From the judgment rendered the defendant has duly prosecuted an appeal to this court.

      White <& White and Evans & Evan-s, for appellant!

      Dave Partain and G. L. Grant, for appellee.
   Hart, J.,

(after stating the facts). Inasmuch as the main reliance for reversal of the judgment is that the evidence is not legally sufficient to support the verdict, it may be well, at the outset, to restate the settled principles of law which control cases of this sort. A mine owner owes to its employees in the mine the duty to use ordinary care to furnish a safe place to work and to keep the place in a safe condition. Central Coal & Coke Co. v. Charles; 122 Ark. 401, 183 S. W. 969.

In Bauschka v. Western Coal & Mining Co., 95 Ark. 477, 129 S. W. 1065, it was held that the owner of a mine is bound to exercise ordinary care, even if props have not been- demanded, to discover the condition of the roof of the mine and to keep same in reasonably safe condition for its servants to work in.

There is an exception to the general rule where the injuries result from changed conditions brought about by the servant in the course of his work. Mcline Timber Co. v. McClure, 166 Ark. 364, 266 S. W. 301.

It is first contended that the safe place doctrine is not applicable in the case at bar, because the plaintiff himself was creating the danger during the progress of the work. It is the contention of the defendant that it was the plaintiff’s duty, before beginning work, in order to satisfy himself that the room was a reasonably safe place in which to do his work, to inspect the roof, and that it was also his duty to inspect it, if it became dangerous in the progress of the work. On the other hand, the plaintiff contends that his only duty was to make a casual observation to see if any thing was wrong with the roof, and that he was under no duty to make any test for the purpose of discovering any defects in the propping.

According to the evidence adduced by the plaintiff, the machine operators first enter the room with their machine and cut the ground under the vein of coal for about thirty inches. The vein of coal in question was about twenty-eight inches in height. The machine, as it cuts, cleans out three or four inches of dirt and coal and enters into the face of the coal about thirty or thirty-six inches. When the cutting is made, it is the duty of the operators of the machine to put sprags in the openings thus made for the purpose of keeping the vein of coal from caving in. When this is done, it is also their duty to place props from the bottom of the mine to the roof about three or four inches from the face of the vein of coal in order to keep the roof from falling in while the loader is at work. It is the duty of the machine operators to put in as many props as are necessary to make the roof safe. Then the machine is removed from the room, and the place is ready for the loader.

It is the duty of the loader to remove the muck, dirt, coal and rock taken out by the machine in making the excavation under the vein of coal. All this waste material is piled up by the loader on the wall opposite the vein of coal. It is also the duty of the loader to remove or pile up any props which have been left by the machine operators. It is not his duty, in any wise, to inspect the roof of the mine to see if it is safe for him to begin work. After a loader has loaded the coal into the car, it is his duty to inspect the roof and put in new props if necessary, in order to make the place safe for the machine operators to come into the room and make a new cutting or excavation under the face of the vein of coal.

Thus it will be seen that, according to the evidence for the plaintiff, it is the duty of each set of employees to put in props and leave the place safe for the servants who succeed them in the work. In short, it is the duty of the machine operators to prop the roof for the loaders and it is the duty of the loaders to see that the roof is made safe for the machine operators when they come in again.

When the plaintiff attempted to remove the sprags under the vein of coal, the roof fell in, and the plaintiff was seriously injured by a large rock falling on him. According to the evidence adduced by the plaintiff, there was an old break in this rock which might have caused it to fall, and it was also inferable that two of the props had not been properly put in and that this caused the roof to cave in when the plaintiff pulled out the sprags; or the falling of the rock might have resulted from both these causes.

When it is kept in mind that the plaintiff was under no duty to examine or inspect or prop the room until after he had finished loading the coal, it is difficult to see upon what ground the defendant did not owe him the duty of keeping the room in a reasonably safe condition. Mining, under the most favorable conditions, is a hazardous business ; and, under the evidence for the plaintiff, after the excavation had been made, it was the duty of the machine operators to prop the roof in order to make it safe for the work of loading which was to be done by the plaintiff. All that was required to make the room safe for the loaders was to properly prop it. With this the plaintiff had nothing to do. It was the master’s duty to exercise ordinary care to do this, or to see that it was done 'by the machine operators who were engaged for that purpose. If the machine operators failed to do their duty in propping the roof, it was the negligence of the defendant.

A brother of the plaintiff testified that he went to the place where his brother had been injured, and that two of the props had fallen down. From the appearance of the ground it looked like the props had been set on top of the cuttings and that the props had slid out in that dirt. It will be remembered that the undisputed proof shows that it was the duty of the machine operators to clear away the machine cuttings and to set the props on solid rock, or on a cap placed on solid ground. It is necessary to wedge in the props tightly in order for them to hold up the roof of the mine when the sprags are pulled out and allow the vein of coal to drop down. Again, Burt Crumpton testified that he made an examination of the place where the plaintiff had been injured, and could tell where the props had been set, from the appearance of the ground. He could tell that the props were placed upon dirt, and had slid out. He could see where the props had been set in the dirt; that is, the caps had first been placed on the dirt and the props had been set on the caps. He could see in the loose dirt where the props had been set and where they had slid away.

Other witnesses for the plaintiff testified that the rock which fell upon him extended from the face of the vein of coal over towards the opposite wall, which was called the “gob” wall. The rock was about seven inches thick in one place and extended out to a feather edge on the other side. It was' about five feet long, and had an old crack on the side of it which extended to the gob wall. This testimony, if believed by the .jury, tended to show that, on account of the old break or on account of the defective way in which the props were set upon loose dirt, or from both, conditions, the roof caved in when the plaintiff pulled out the sprags in the course of his work.

The defective condition caused by the results above stated was the direct and proximate cause of the injury to the plaintiff. He was injured by the rock falling upon him, due to the old crack in it, or to the defective manner in which the props were put up, or from the condition resulting from both of these causes. Under these circumstances the jury was warranted in returning a verdict for the plaintiff.

Finally, on this point, it is earnestly insisted that there can be no recovery in this case because the facts bring it within the rule that, where the servant adopts methods for his own convenience or safety, then the master owes the servant no duty to make the working place safe, and that his failure to do so is not actionable negligence. This contention is based on the fact that the mine workers were working under a contract which provided the method for the machine crew to do its work and for the loaders to do their work. In one of these rules it is provided that it shall be the duty of the machine crew to set such props and sprag such coal as may be necessary to make the roof reasonably safe immediately after the coal has been cut. It is true that this rule was adopted by contract between the operator and its employees, but that does not make any difference. It was still a rule prescribed for a proper method of doing the work, and it did not make any difference whether the operator adopted the rule or method of doing the work under contract with its employees or by its own volitipn. As we have already seen, the business of coal mining is a dangerous one, and it was the duty of the defendant to its employees to make rules necessary to insure the safety of its employees, and to inform the employees of the rules. We cannot perceive how the duty of the master in this respect can be abrogated because tbie master contracted with its employees to make reasonable rules. The fact that it contracted to do its duty could not make any difference. If there was any doubt about whether the rulé adopted was a reasonable one or not, in testing its reasonableness it would be proper to show that the master had adopted it at the request of its employees, or under contract with them to do so.

This suggests the question of whether or not the machine operators stood in the relation of an independent contractor to the defendant, within the rule announced in J. H. Wheeler & Co. v. Fitzpatrick, 135 Ark 117, 205 S. W. 302; W. H. Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S. W. 4; and other decisions of this court relating to this subject. The machine operators were in no sense independent contractors, and the defendant cannot be relieved of liability on that ground. They were employed by the defendant, just as the loaders were employed. They did not contract to do their work according to their own methods, but were wholly subject to the control of the defendant. It was as much their duty to obey the orders of the defendant and do their work under the rules prescribed for that purpose as it was the duty of the loaders to obey the defendant and work under its rules and directions. They had no capital invested in the mine, and’ were entirely dependent upon the conditions of their employment, just as the loaders were. Hence we are of the opinion that the machine operators were in no sense independent contractors.

Finally, it is insisted that the court erred in refusing to give certain instructions asked by the defendant. We .do not deem it necessary to set out these instructions or to discuss them in detail. Thejr were either peremptory in their nature or were not in accordance with the principles of law decided in the cases above cited. In the instructions given to the jury, the court fully and fairly submitted the respective theories of the parties according to the principles of law decided in the cases above referred to.

We find no reversible error in the record, and the judgment will therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Stookberry v. Pigg.
    Opinion delivered January 31, 1927.
    1. Frauds, statute of — -defense of — instruction.—In an action for damages for breach of a verbal contract for sale of land, an instruction that, if the alleged purchaser, under verbal agreement took possession of the land, the agreement became binding on him -and that, on failure to comply with the terms thereof,' he was liable for breach of contract, held erroneous.
    2. Frauds, statute of — when pleaded.- — In an action for breach of a contract for the sale of land, no part of the purchase price being paid, defendant’s denial of execution of the contract was sufficient to let in the defense of the statute of frauds.
    3. Contracts — burden of proof. — Where pleadings present the issue of agreement or no agreement, the party relying upon the agreement must prove a valid one.
    4. Frauds, statute of — burden of proof. — Where, in an action on a verbal agreement to sell land, defendant denied the existence such agreement, the burden of proving a valid agreement within the statute of frauds devolved on the plaintiff.
    B. Frauds, statute of — sufficiency of part performance. — Where a contract for the sale of land was in parol, the mere fact that the defendant took possession of the land thereunder, without paying anything or making any valuable improvements, was insufficient to enable the vendor to maintain an action for damages for breach of the contract.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    reversed.
    STATEMENT OF FACTS.
    This is an action at law by J. E. Pigg against A. S. Stooksberry to recover damages fob the breach of an oral contract for the sale of land. According to the allegations of the complaint, in December, 1924, the plaintiff made a verbal contract with the defendant to sell him a certain tract of land for the sum of $1,500. The complaint further alleges that, in part performance of said contract, the plaintiff delivered possession of said land to the defendant and that the defendant, after remaining in possession of the land for a short time under the contract of purchase, moved away from the land, and refused to carry out the contract.

      The defendant filed a demurrer and answer to the complaint. The answer denies that the oral contract for the sale of the land by the plaintiff to the defendant was made, and denies that the defendant took possession of the land under said contract.
    J. E. Pigg was a witness for himself. According to his testimony, he is the owner of the land described in the complaint, and, in December, 1924, made an oral contract with the defendant, A. S. Stooksberry, to sell him said land for $1,500. Pigg lived on the land, and moved away after the contract was made, in order that Stooksberry might take possession of the land. Stooksberry moved on the land and stayed a short time, and then moved away. Pigg tendered him a deed, and 'Stooksberry refused to accept it or to pay the purchase price of the land.
    A. S. Stooksberry was a witness for himself. According to his testimony, he did not make any kind of an agreement, verbal or otherwise, to purchase the land in question from Pigg. He only made a verbal agreement with Pigg to purchase the-land in case he sold some land owned by himself to the Standard Oil Company. He moved on the land on the 6th day of January, 1925, and stayed there fourteen days. It was distinctly understood between the parties that, unless Stooksberry sold his land to the Standard Oil Company,-he could not purchase the land of Pigg. The Standard Oil Company did not purchase Stooksberry’s land, and he refused to consider any further his contemplated purchase from Pigg.
    Under the instructions of the court the jury returned a verdict for the plaintiff in the sum of $200, and, from the judgment rendered, the defendant has duly prosecuted an appealto this court.

      Robert A. Rowe, for appellant.

      George W. Johnson, for appellee.
   Hart, J.,

(after stating the facts). Under the instructions of the court, to the effect that, if the jury should find that the plaintiff and the defendant entered into an oral agreement for the sale of the land described in the complaint, and the defendant took possession of the land under said oral agreement, the agreement became binding upon the defendant; and, if he failed to comply with the terms of the oral agreement, he was liable to plaintiff for damages for breach' of the contract. This instruction was erroneous.

This was an action to recover damages for the breach of an oral contract for the sale of land. No part of the purchase price was paid, but, under the allegations of the complaint, the defendant was in possession of the land under the oral contract. The defendant denied making the contract. Under our system of pleading, this was sufficient to let in the defense of the statute of frauds. Where the pleadings present the issue of an agreement or no agreement, the party relying upon the agreement must prove a valid one. If the defendant had admitted that a verbal agreement for the sale of the land had been made as alleged by the plaintiff, then he must have specifically pleaded the statute of frauds in order to rely upon it. Having denied the oral agreement for the purchase and sale of the land as alleged in the cómplaint, the statute of frauds became a question of fact at the trial, and it devolved upon the plaintiff to prove a valid agreement in order to recover. Cook v. Cave, 163 Ark. 407, 260 S. W. 49; and O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347.

Among other things, § 4862 of Crawford & Moses’ Digest provides that no action shall be brought to charge any person upon any contract for the sale of lands or to charge any person upon any lease of lands for a longer term than one year.

In Phillips v. Grubbs, 112 Ark. 562, 167 S. W. 101, the court held that a contract of lease for a period of five yéars is taken out of the statute of frauds when the lessee complies with its terms by paying rent for two, years and making valuable improvements on the land. The court said that this holding is true of an oral agreement to sell lands, and that the same principle controls a contract for the lease of lands.

In Storthz v. Watts, 117 Ark. 500, 175 S. W. 486, ” whiqh was an action at law, the court said that, in order to take an oral contract for the lease of lands ont of the statute of frauds, there must be substantial expenditures in the way of performance of the contract over and above the mere occupancy of the land and payment of rent for the period actually occupied. In discussing the question, the court said: “The only item of repairs specified is a trifling amount expended on the fence, which is too insignificant to be treated as a substantial performance of the contract. There is nothing more in the testimony, in the way of part performance, than occupancy for the first year and payment of the rent for that year, which is not sufficient to take the case out of the operation of the statute. There must be substantial expenditures in the way of performance of the contract over and above the mere occupancy and payment for the period actually occupied. There is a difference between substantial part performance of a contract, which takes it out of the operation of the statute, and partial execution, which does not have that effect. Henry & Bro. v. Wells, 48 Ark. 485.” To the same effect is Newton v. Watkins, 340 Ark. 252, 215 S. W. 615.

In Beattie v. Smith, 146 Ark. 532, 226 S. W. 128, the court held that, where the vendor of standing- timber received payment and the purchaser entered into possession, this took the contract out of the statute of frauds, though it was oral. This was an action for the breach of an oral contract for the sale of timber.

In Carnahan v. Terrall Bros., 137 Ark. 407, 209 S. W. 64, the court held that a contract for the sale of standing timber is within the statute of frauds, and that the doctrine of part performance applicable to oral contracts for the sale of land applies to such contracts.

In Dunn v. Turner Hardware Co., 166 Ark. 520, 266 S. W. 954, it was held that mere occupancy of land and payment of the rent for the period occupied were not sufficient to take the case out of the operation of the statute of frauds. There the court had under consideration an oral lease for five years.

Under these authorities, an action for damages for the breach of the contract sued on cannot be maintained. As we have already seen, the contract for the sale of the land was an oral one, and no part of the purchase money was paid, and no valuable improvements were made under the contract. The only reliance of the plaintiff as a basis for his action is that the defendant took possession of the land under the oral contract; and, as we have just seen, this was not sufficient to entitle him to maintain an action at law for damages for breach of the contract.

It follows that the judgment must be reversed; and, inasmuch as the cause of action seems to have been fully developed, the complaint of the plaintiff will be dismissed here.


author: Smith, J.

text:
    American Insurance Company v. Rector.
    Opinion delivered January 31, 1927.
    1. Insurance — fire policy — possession of owner. — In an action on a fire insurance policy containing a clause voiding the policy for a change in possession of the property, an instruction that if insured’s brother occupied the. property as insured’s tenant the policy was void, but if he occupied it as insured’s agent the policy was not avoided, held correct.
    2. Insurance — fire policy — change of possession. — Evidence, in a suit on a fire insurance policy, held to show that insured’s temporary arrangement for his brother to live in his house did not constitute such a change of possession as to avoid the policy, under a clause forbidding a change in title, possession or interest, where the right of possession remained in insured, and he left part of his household goods in his brother’s charge.
    3. Insurance — fire loss — failure to make proof. — Insured's failure to make proof of a total loss of hjs residence within the time specified for making proof thereof under the policy held not to defeat a recovery under the fire policy, where the evidence established that insured reported his loss promptly to the insurer’s agent who made report to insurer, since, under Crawford & Moses’ Dig., § 6147, a total loss is considered liquidated damages.
    4. Insurance — waiver of proof of loss. — If an authorized agent, within the time specified for making proof of loss under the policy, enters into negotiations for the adjustment of the loss, or otherwise treats this requirement of the policy as having been complied with or as waived, the insurer cannot thereafter defend upon the ground that a proof of loss was not furnished.
    5. Insurance — sufficiency of proof of loss. — If, within the time when proof of loss can be made, the insured furnishes such information in regard to the loss as is apparently sufficient to meet the insurer’s requirements in this respect, the insurer cannot, after the time for making proof of loss, be heard to say that the proof furnished was insufficient.
    Appeal from Tell Circuit Court, Dardanelle District; J. T. Bulloch, Judge;
    affirmed.

      W. B. Rutherford, for appellant.

      J. W. Wilson, for appellee.
   Smith, J.

On November 6,1922, the appellant insurance company issued to appellee a fire insurance policy for a three-year period on his farm residence for $700, with additional insurance of $300 on the household furniture, etc. On March 7, 1925, the house was destroyed by fire, but the contents were saved by the caretaker. The house was totally destroyed, and this suit was brought to collect the insurance thereon. The insurance company defended upon the grounds that there had been a change of possession which avoided the policy, and that the insured had not made proof of loss as required by the policy. Liability was denied upon both grounds. The trial resulted in a verdict for the insured for $700, with a penalty of 12 per cent, and an attorney’s fee of $100, and from the judgment therefor is this appeal.

Appellee, the insured, was a married man at the time the policy was issued, and his wife lived with him in the insured property, but she abandoned him. Their separation had been impending for some time, and a brother of appellee had unsuccessfully attempted to effect a reconciliation. As appellee expressed it, he and his wife “divided,” and it appears to have been agreed that he should haul her effects from their residence to the place to which she had decided to remove. Pursuant to this arrangement, appellee’s brother, who was a tenant on the farm where the insured residence was located, moved into the insured property, and appellee’s wife moved out the following day. Appellee testified that his brother moved in in order that he might take care of the property. His brother had been living in another house on the farm, which he vacated, "and was placed, in the insured house as a caretaker, and no increased rent was charged against his brother.

Appellee testified that, immediately after his wife left him, he secured employment to drive a team, and, to enable him to make two trips each day, he stayed in Dardanelle, instead of his own home, but that he left his' personal effects at home and retained a furnished room there, and returned home every Saturday night. Appellee secured a divorce, on some ground not stated, and married again, and, after his second marriage, resided in Dardanelle, but he testified that he did this because it made him more accessible to his work, and that he intended at all times to return to his home — the insured property — when his employment terminated, hut the house burned before that time, and that, even after his second marriage, he only removed from the house a feather-bed and some pillows.

The policy sued on contained the following provision: “If any change takes place in the title, possession or interest of the assured in the above mentioned property, * * * then * * * this policy shall be null and void. ’ ’

It is insisted that there was a violation of this provision, and that the policy was invalidated on that account.

Upon this feature of the case the court charged the jury as follows: “Now, if Rector’s brother went into that property as Rector’s tenant and occupied it as his tenant, the court tells you that the policy is void, because it is in violation of that clause that requires him to maintain his residence and ownership, and the possession would be changed from that of the original owner to that of a tenant. The court tells you further that, if his brother went in there as his agent and maintained his residence in that building as Rector’s agent and not as his tenant, then the policy is not void on that account; * * * if he maintained his possession by either remaining there himself or keeping some one there for him, taking care of his property for him, the court tells you that he did not change his possession. * * *”

It is insisted that this instruction is not only abstract as applied to the facts of this case, but is an incorrect interpretation of the stipulation of the policy quoted above in any case.

We do not think either objection to the instruction is well taken. In addition to the facts stated above, appellee testified that he told Mr. George, the agent who wrote the policy, that he was staying temporarily in Dardanelle, and that his brother was in charge of the insured property for him, and that George told him that this Would not invalidate the policy. George denied having this conversation. Appellee testified that' he had not put his brother in charge for any definite time, and that he retained the right to reenter and take possession at any time, and that it was his intention always to reoccupy the property when his employment terminated. That the house which his brother vacated when he rémoved into the insured property remained vacant, so that his brother could move back into it when told to do so,-and his brother did return to that house when the insured house burned. He-did not charge his brother any rent, and he kept a portion of his effects in the insured property at all times, and had the right to retake possession on demand. Appellee further testified, as stated, that he had advised the agent, George, of his temporary removal from the property, and that George said that this fact would not affect the insurance. If this be true — -and the jury evidently credited the testimony — the jury was warranted in finding that the agent did not regard the circumstance as being a change of possession. The agent made no attempt to -cancel the policy, and, if there was a change of possession, the question might have been raised whether this provision of the policy had been waived; but that issue was not submitted to the jury. The question of fact submitted was whether there had been a change of possession.

We are of the opinion that the testimony warranted the finding that the temporary arrangement recited did not constitute a change of possession. Not only did the right of possession remain in appellee, but he left a portion of his household goods in the house in charge of a caretaker.

In the case of Planters’ Mutual Ins. Assn. v. D.ewberry, 69 Ark. 295, 62 S. W. 1047, 86 Am. St. 195, the policy sued on contained the stipulation that if “ * * * any change takes place in the title, occupation or possession * * *” of the insured property, the policy should be void. The owner of the property leased it to one Haile for a year, and gave Haile possession thereof, and moved away from the premises, which remained in the exclusive possession of Haile until the house was destroyed by fire. The court held that there had been a change of possession and occupancy and that the policy had been thereby invalidated.

It may be said that the policy there sued on contained a stipulation against a change either of occupancy or possession, and that there was a change both of occupancy and possession, as the owner relinquished the right of occupancy and possession to another for a definite time, and, as the opinion recites, Haile was occupying the house exclusively at the time of the fire.

Here the stipulation is only against a change of possession. One might be in possession of property which he did not occupy, and one might give another the right to occupy which would deprive the owner of his right of possession, at least for the period of time that the right of occupancy exists. But this is the question which the instruction quoted submitted to the jury. Under the instruction the jury was told to find for the defendant insurance company if it were found that the occupant was not in possession for the owner. The court directed the jury to find for the insurance company if it were found ihat appellee’s brother was in possession as tenant, although the tenancy was at will, but to find for the plaintiff if it were found that appellee’s brother was in possession as a mere caretaker. It thus appears that the court did not submit to the jury the question whether the insurance company had waived the stipulation against change of possession through the notice given its agent by appellee.

In the case of Queen of Arkansas Ins. Co. v. Pendola, 94 Ark. 594, 128 S. W. 559, the policy sued on contained a provision invalidating it if there were a change of occupancy or possession, and Justice Battle, speaking for the court, said: “An insurance company has the right to determine what property it will insure, and to make its liability for such insurance dependent on the occupant. This is a matter of contract. The insured has the right to determine what insurance he will accept; and, when he enters into a contract with the insurance company in which the property insured is specified, and the insurance is made to depend upon the change of occupancy, he is bound by the contract, and he cannot change the occupancy of the property contrary to the terms of the policy and hold the insurer liable. He cannot change the contract. This is necessary for the protection of the insurer. ’ ’

It is not our intention to impair the doctrine of that case, 'but we do hold that there was no such change of possession as to render the policy here sued on void under the provision set out above, where the jury has found, under evidence sufficient to support the finding, that the owner did not surrender his possession and right to occupy, but had only turned the property over to a caretaker during his temporary absence.

In volume 2 'Cooley’s Briefs on the Law of Insurance, page 1723, it is said: “However, it is often difficult to determine what constitutes a change of possession within the meaning of a policy. In Rumsey v. Phoenix Ins. Co. (C. C.), 1 Fed. 396, 2 Fed. 429, it is said that the change of possession contemplated by a provision of this kind is something more than a change of occupation. It is a change effected ‘by legal process, judicial decree, voluntary transfer, or conveyance’; one which refers to insured’s possessory right, and not to his occupancy of the premises. The temporary absence of the insured, leaving the premises in the charge of an agent who occupies them, is not such a change of possession as will terminate the policy (Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526, 7 Am. Rep. 380; s. c. 2 Sweeny, 470, 40 How. Prac. 393). Nor is it a change of possession to admit another into actual possession under a parol license for the single purpose of making repairs (Alkan v. New Hampshire Ins. Co., 53 Wis. 136, 10 N. W. 91). On the theory that the change of possession contemplated by a policy is something more than a mere change of occupancy, it was held in Rumsey v. Phoenix Ins. Co. (C. C.) 1 Fed. 396, 2 Fed. 429, that a lease of the premises and occupancy by the tenant was not a violation of the policy. A contrary rule is, however, asserted in Wenzel v. Commercial Ins. Co., 67 Cal. 438, 7 Pac. 817, and in Planters’ Mutual Ins. Assn. v. Dewberry, 69 Ark. 295, 62 S. W. 1047, 86 Am. St. Rep. 195, it was said that a lease of the premises vitiated the policy. But it is to be noted that the holding in the Wenzel case was overruled by implication in Smith v. Phoenix Ins. Co., 91 Cal. 323, 27 Pac. 738, 13 L. R. A. 475, 25 Am. St. Rep. 191, and that the condition involved in the Dewberry case was against change of ‘ occupancy or possession’.”

We conclude therefore that there was no error in the instruction set out, and that the testimony is legally sufficient to support the finding that there was no change of possession.

Upon the question of the failure to make proof of loss, but little need be said. The undisputed testimony shows that on the day after the fire appellee wrote the company, advising that the house had burned, and that he personally notified Mr. George, and asked him about the proof of loss, and appellee testified that George stated he would attend to this.

George admitted that he made a report of the loss to the company on one of the blanks furnished by the company for that purpose, and this report was based upon what appellee had told him. There was no contention that any information was desired which appellee failed to furnish. Appellee testified that George offered him $350, or one-half the policy, in settlement of the claim, and advised him not to sue if he was not willing- to accept that amount. George admitted that he was authorized by the. company to adjust the claim, and that he did not prosecute the settlement because appellee refused to sign a non-waiver agreement.

By § 6147, C. & M. Digest, it is provided that “a fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered a liquidated demand against the company taking such risk for the full amount stated in such policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this article shall not apply to personal property.”

The insured building- was totally destroyed by fire. Appellee reported the loss promptly, and had several conversations with Mr. George about the proof of loss, and George told him, within the time when proof of loss could be made, that he (George) would make a report, and that he did so, and George admitted that he did make a report on a blank provided by the company for that purpose, and that included in this report was a statement about appellee removing from the property, and that, in response to his letter to the company inclosing this report, the company wrote him to take up the matter of adjustment of the loss, provided appellee would sign a non-waiver agreement, but, as the agreement was not signed, he did not attempt to make a settlement.

In the case of National Union Fire Ins. Co. v. Wright, 163 Ark. 42, it was said that, “if an authorized agent, within the time specified for making proof of loss under the policy, enters into' negotiations for the adjustment of the loss, or otherwise treats this requirement of the policy as having been complied with, or as waived, then the company cannot thereafter defend upon the ground that a proof of loss was not furnished” (citing-cases).

It is also settled that if, within the time when proof of loss might he made, the insured furnishes such information in regard, to the loss as is apparently sufficient to meet the company’s requirements in this respect, the company cannot, after the time within which proof of loss might be made has expired, be heard to say that the proof of loss furnished was not sufficient. Glens Falls Ins. Co. v. Jenkins, 169 Ark. 1015, 277 S. W. 541.

No error appears, and the judgment is therefore affirmed.


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    Wayne Tank & Pump Company v. Bank of Eureka Springs.
    Opinion delivered January 31, 1927.
    1. Banks and banking — unaccepted check — right op action. — As a general rule, the holder of an uncertified and unaccepted check has no right of action against the hank on which it is drawn, even though the hank has funds of the drawer out of which it could pay the cheek, for the reason that there is no privity of contract between the holder of the check and the drawee bank.
    2. Banks and banking — unauthorized indorsement op check.— The payee of a check, whose agent, without authority, indorsed and collected the check, is entitled to hold drawee bank liable for the amount of the check, since the payee may ratify the action of the hank in receiving and collecting the check without ratifying the unauthorized act of the agent in indorsing the check.
    Appeal from Carroll Circuit Court, Western District ; W. A. Dickson, Judge;
    reversed.

      P. F. Johnson and Charles D. James, for appellant.

      G. A. Fuller, for appellee.
   Smith, J.

Cook & Border, merchants at Eureka Springs, bought from Ed Kincaid, a salesman representing the Wayne Tank & Pump Company, an oil storage tank, the regular price of which was $559, a discount of five per cent, being allowed for full payment in cash.

These tanks were sold under written orders, which had printed in large type that ‘ ‘ agents for the company are not authorized to collect money hereunder, except for initial payment. ’ ’

Cook & Border paid cash for the tank ordered by them, and, in payment therefor, delivered to Kincaid their check on the Bank of Eureka Springs for $538.85. Kincaid presented the check for payment to the bank on which it was drawn, and payment was first refused. Later in the same day Kincaid again presented the check, and exhibited the contracts under which he was taking orders for tanks, and under which he had sold a tank to the drawer of the check which he presented to the bank for payment, and it was paid.

After waiting about a month for the tank to be shipped, Cook & Border wrote the vendor, Wayne Tank & Pump Company, inquiring the cause of the delay in shipping the tank, and received a response from the company advising that no order had been received. Thereupon Cook & Border made profert of their contract with Kincaid and the check which Kincaid had cashed, whereupon the company shipped the tank contracted for by their agent, and brought this suit to recover the amount of the cheek from the bank. There was a trial before the court sitting as a .jury, and a finding and judgment for the bank, from which is this appeal.

From the facts recited it will appear that the case of Schaap v. First National Bank of Fort Smith, 137 Ark. 251, 208 S. W. 309, is controlling here. The facts in that case were that Slates, the agent of Schaap, had authority to sell drugs and to collect past-due accounts, and to receive payment either in money or in checks drawn in favor of his principal. Slates collected certain accounts, which were paid in checks payable to the order of Schaap, and, after indorsing the checks in the name of the payee, collected the money on them and misappropriated it. Schaaps sued the banks which had paid the checks. It was insisted that the authority to collect past-due accounts either in money or checks carried with it the authority to indorse the checks received by Slates in payment of the accounts, and the trial court sustained that contention. In reversing that judgment we said: “When Slates received them (the checks) in payment of a debt due his principal, his duty as collector ceased, except to transmit the checks to his principal. The indorsement of the checks was not a necessary incident to the collection of the accounts, and his authority to receive checks, instead of cash, did not confer power to indorse the checks. It has been uniformly held that the fact that an agent authorized to make collections in checks as well as in money does not enlarge his authority to indorse checks so taken in the name of his principal. ’ ’

It was insisted in that case, as it is here, that the payee in the check had no right to sue the bank upon which it was drawn, for the reason that the indorsement upon which it was paid was forged, and that the bank had not therefore accepted the checks for payment. The eases of Sims v. American Nat. Bk. of Ft. Smith, 98 Ark. 1, 135 S. W. 356; Rogers Com. Co. v. Farmers’ Bank of Leslie, 100 Ark. 537, 140 S. W. 992; and State, use, etc., v. Bank of Commerce, 133 Ark. 498, 202 S. W. 834, L. R. A. 1918F, 538 — were cited in support of that contention.

These cases, which are here cited, were reviewed in the Schaap case, and, after saying that these cases are in accord with the general rule that the holder of an uncertified and unaccepted check can, in the absence of a statute, maintain no action thereon against the bank on which it is drawn, even though the bank has funds of the drawer out of which it could pay the check, for the reason that there is no privity of contract between the holder of the check and the drawee bank, this court proceeded to say: “As we have already seen, Slates, the agent of the plaintiff, had no right to indorse the checks in the plaintiff’s name, and the plaintiff’s right to the checks remained precisely as it was before Slates undertook to indorse them for him. The checks therefore, when received by the defendants, were the property of the plaintiff, and in that case he may, as we have seen, ratify the action of the banks in receiving the cheeks and collecting their proceeds without ratifying the unauthorized act of his agent in indorsing the checks in the name of the principal.”

The law as stated in the Schaap case appears to be decisive of the present appeal.

The judgment of the court below must therefore be reversed, and it is so ordered.


author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Henry.
    Opinion delivered January 31, 1927.
    1.’ Railroads — killing of dog — negligence.—Testimony that a train could not have been stopped within time to avoid killing a dog after he was discovered would not as a matter of law overcome the presumption of negligence where there was proof that his presence was discovered 75 yards in front of the train and that the trainmen failed to blow the whistle or ring the bell.
    2. New trial — ruling on former trial. — Though the trial court, in the first trial in an action against a railroad company for killing a dog, held the evidence insufficient to support a judgment for plaintiff, this ruling did not preclude a judgment for plaintiff ■ on a second trial on the same evidence.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Thomas B. Pryor and Daggett é Daggett, for appellant.

      A. D. WMtehead, for appellee.
   Humphreys, J.

Appellee brought this suit in the circuit court of Phillips County against appellant to recover damages in the sum of $110 for killing his pointer dog, in the operation of a passenger train, through the alleged negligence of appellant’s employees in failing to give proper warning of the approach of the train and to stop the train when the peril of the dog was discovered.

Appellant filed an answer, admitting the killing of the dog, but denying the allegations of negligence by its employees, and interposing the defense that the dog came on the track in front of the moving train at such time and place that it was impossible to avoid striking him.

The cause was submitted to the court, sitting as a jury, on April 13, 1924, upon the testimony adduced by the respective parties, resulting in a judgment for $60 against appellant.

On May 1, 1924, appellant filed a motion for a new trial upon the grounds that the verdict and finding of the court were contrary to the law and the evidence, and that the court erred in finding and holding that it was the duty of the engineer to give an alarm that would warn the dog of the approach of the train. The abstract does not reflect that this motion was acted upon. On May 2, 1924, the court made the following order: “Now on this day the judgment in this cause heretofore rendered by the court is set aside on the court’s own motion and a new trial ordered.”

Four witnesses were introduced on the first trial, two by appellee and two by appellant.

Appellee testified, in substance, that he saw the train when it ran over the dog; that the train was fifty or seventy-five yards from the dog when he first saw it, and the dog was in the middle of the track; that the whistle was not blown or the bell rung; that the train was traveling fifteen or twenty miles an hour. Witness admitted that he stated to the claim agent that it was doubtful whether the train could have been stopped so as to prevent the killing of the dog;

C. E. McCabe testified, in substance, that he saw the train at the time it killed the dog; that the dog was in the middle of the track, abont sixty yards from the train, when he first noticed it; that the bell was not rung nor the whistle blown; that the train was running probably twenty miles an hour. Witness admitted that he made a statement to the claim agent of the company to the effect that, if the dog had just got on the track when he first saw it, the train could not have stopped in time to prevent striking the dog.

J. M. Smith testified, in substance, that he was the engineer in charge of the locomotive that killed the dog; that the first time he saw the dog it came out of a ditch which had been leveed, on the left side of the track; that the Johnson grass was so high that it prevented him from seeing the dog until it got in the middle of the track, fifty to seventy-five feet in front of the locomotive; that he was in his proper place, and immediately shut off the steam and applied the brakes; that the train was running thirty 'miles an hour, down grade, and that it would have taken a minute to shut off the steam and apply the brakes so as to become effective; that he did all that could have been done to stop the train and prevent striking the dog; that the bell was ringing, but that he did not have time to blow the whistle before the dog was struck; that it was impossible to stop the train under 600 or 800 feet.

Charlie Begley testified, in substance, that he was the fireman on the train that killed the dog; that he first saw the dog when the train was in the act of running over him; that he had been putting in a fire, and when he got on the box-seat the dog was twenty or twenty-five feet in front of the engine.

At the conclusion of the testimony the court and the attorney for appellant had the following conversation:

“Court: I will concede the engineer could not have-stopped the train before he got to the dog. Now, if there is any other feature you might wish to discuss — •
“Mr. Daggett: That is the way I see it: if he couldn’t have avoided striking the dog — he had only a second to do it — if the dog was anywhere within 44 feet of that train he had only a second—
“Court: How far did it run in a second?
“Mr. Daggett: Forty-four feet. It would run 2,640 feet in a minute, at 30 miles'per hour; that is 44 feet per second — a second is just a space of time that nobody can do anything in.
“'Court: The court finds that there should have been some warning given by the engineer of the approach of the train that could have been heard by the dog; after he discovered the peril of the dog, it was his duty to give some warning that could be heard by the animal, and, for his failure to give this warning, judgment is rendered on that ground.
“Mr. Daggett: We except, of course.”

On November 12, 1925, the cause was again submitted for trial to the court, sitting as a jury, on the same testimony introduced upon the former trial, which resulted in a judgment in favor of appellee for $60, from which is this appeal.

At the conclusion of the testimony on the second trial there was no repetition of the conversation which occurred between the court and counsel on the first trial.

Appellant contends for a reversal of the judgment .upon two alleged grounds:

First, that the evidence is insufficient to support the verdict;

Second, that the court was without authority to render the verdict and judgment in the second trial upon testimony which he, in effect, declared insufficient on the first trial to support a verdict and judgment.

(1). The evidence is conflicting as to the distance between the train and dog when the dog ran upon the track. The testimony introduced by appellee was to the effect that the intervening distance was from sixty to seventy-five yards, whereas the testimony of the witnesses introduced by appellant was to the effect that the intervening distance was from twenty to sixty feet. ’ If the jury believed the engineer discovered the dog in the middle of the track when seventy-five yards from him, they may reasonably have drawn the inference that he should have rung the bell and blown the whistle in an effort to scare the dog off the track. The killing of the dog raised a presumption that it was negligently done, and it cannot be said that the presumption of negligence was removed by undisputed proof to the effect that the dog was unavoidably killed. There is sufficient evidence in the record to support the verdict and judgment.

(2). The argument of learned counsel that the act of setting aside the verdict and judgment on the first trial and granting a rehearing was tantamount to ruling that the evidence was insufficient to support the verdict, and that the court was bound on the second trial by the first finding, is not sound, for two reasons; the first being that the court set aside the first verdict and judgment on-his own motion, without disclosing his reason for doing so, and the second being that the order setting aside the first verdict and judgment and granting a new trial was an interlocutory order which the court had a right to set aside at any time if he concluded he had made a mistake. Of course it would not do to say that a court must adhere to every ruling or interlocutory order made by him during the first trial of a cause, much less to say that he must adhere to rulings and interlocutory orders on the second trial of a cause which he made on the first trial. Such a rule would prevent a court from correcting errors which he had made, or from changing his mind relative to his acts or declarations occurring in the course of a trial. It will be observed in the instant case that appellee did not treat the order setting aside the first judgment as final and appeal from it. The order remained in the case as an interlocutory order. The facts announced in this case do not bring it within the rule • announced in Twist v. Mullinix, 126 Ark. 427, to the effect that, “if the trial court finds and announces that the verdict of the jury is against the preponderance of the evidence on a material issue of fact, he must set aside such verdict.” The rule is applicable only to final rulings and orders relative to verdicts and judgments. The trial court’s expressions and acts must be consistent in passing upon the sufficiency of the evidence to sustain a verdict and judgment in making-final and appealable orders.

No error appearing, the judgment is affirmed.


text:
    Willm v. Dedman.
    Opinion delivered January 31, 1927.
    1. Vendor and purchaser — executory contract. — Under an executory contract for the sale of lands to B with privilege to resell tracts of not less than 40 acres upon payment of the price to the vendor, no legal title passed to B, and one purchasing from B acquired only such rights as B had.
    2. Adverse possession — payment of taxes — color of title. — Under Crawford & Moses’ Dig., § 6943, investing with title one who, with color of title, pays taxes on unimproved and uninclosed land for seven years in succession, held that a contract for the purchase of land does not constitute color of title.,
    3. Vendor and purchaser — 'Limitation of action. — Where the acquisition of title to land depended on payment of the purchase money, a purchaser in possession who has failed to pay the purchase money cannot acquire title upon the ground that the debt was barred by the statute of limitation's.
    4. Vendor and purchaser — liability of subvendee. — Where land was purchased subject to the payment of a certain amount per acre, the vendor’s assignee is not entitled to a personal judgment against a subvendee, but only to a lien on the land for the purchase money.
    5. Vendor and purchaser — lien for purchase money. — Land sold subject to the payment of a certain amount per acre is subject to a lien for that amount in favor of one purchasing the contract rights of the vendor, regardless of the price paid to the vendor therefor.
    Appeal from Cleveland Chancery Court; H. R. Lucas, Chancellor;
    judgment modified.

      George Brown, for appellant.

      Woodson Mosley, for appellee.
   Humphreys, J.

Appellee instituted suit against appellant in the chancery court of Cleveland County to cancel a deed from the Western Land Company to said appellant, of date June 13, 1918, for the north half of the northwest quarter section 9, township 9 south, range 10 west, in said county, upon the alleged ground that same constituted a cloud upon appellee’s title to said land. Appellee alleged ownership of said tract of land through mesne conveyances from the United States, his immediate grantor being the J. I. Porter Lumber Company, from, whom he purchased it, with other lands, on June 27, 1923; that said land was and had always been wild and unoccupied, and that his grantors had paid the taxes thereon for more than twenty-five years under color of title.

Appellant filed an answer to the complaint, admitting that the J. I. Porter Lumber Company acquired title to said tract of land through mesne conveyances from the United States, but denying that appellee acquired any title thereto by the deed which said company executed to him June 27,1923, alleging that, prior to the execution of said deed, the J. I. Porter Lumber Company had conveyed the tract of land to Tom Blodgett; that Tom Blodgett conveyed same to the Western Land Company, from whom he (appellant) acquired it by purchase on June 13, 1918; also admitting' that said land was and had always been wild and unoccupied, but denying that the grantors of appellee had paid the taxes thereon under color of title for more than twenty-five years, and pleaded the further defenses of estoppel, laches and the payment of taxes for more than seven years under color of title.

The cause was submitted to the court upon the pleadings, exhibits thereto, and the testimony introduced by the parties, which resulted in a denial of the cancellation of appellant’s deed, but, instead, the rendition of a personal judgment in favor of appellee against appellant for $694 and a decree for a lien and the enforcement thereof against said land by sale, if said amount was not paid by appellant.

An appeal has been duly prosecuted to this court by appellant from the decree in so far as same is adverse to him.

The evidence in the case is undisputed. Each party traces his title back to the J. I. Porter Lumber Company. On September 15, 1913, the J. I. Porter Lumber Company entered into a written contract for the sale and purchase of a large body of land in said county, including this tract, to Tom Blodgett, for a total consideration of $91,800 to be paid in installments at stated periods. The contract contained a provision allowing Blodgett to sell the lands in tracts of not less than forty acres, in which event it agreed to malee a contract or deed direct to the purchaser upon payment to it of $6.75 per acre in cash, or to accept one-half of said amount in cash and to retain a vendor’s lien, or to take a first mortgage on the tracts sold for the other half of said amount.

On the 20th day of October, 1913, Blodgett conveyed said lands by warranty deed to the Western Land Company, a corporation, of which he was president. The deed contained the following recital: “My entire interest in all the lands purchased by me from the J. I. Porter Lumber Company on the 15th day of September, 1913, as described in the contract of that date signed by the J. I. Porter Lumber Company, by J. I. Porter, its president, and J. F. Swanson, treasurer, and by the undersigned, Tom Blodgett, being thirteen thousand and six hundred acres, more or less. ”

In the year 1914 the Western Land Company contracted to sell the eighty-acre tract of land in question to appellant for $2,000. Appellant paid it $400 of the consideration at the time the contract was executed.

On the 13th day of June, 1918, the Western Land Company executed a warranty deed for said eighty-acre tract of land to appellant upon the payment to it of $1,600, the balance of the consideration. Appellant paid the taxes on said eighty-acre tract of land from the date of his contract in 1914, to and including the year 1923.

The contract from the J. I. Porter Lumber Company to Blodgett was filed for record September 6, 1917. The deed from Blodgett to the Western Land Company was filed for record October 20, 1913. The deed from the Western Land Company to appellant was filed for record on June 13,1918, the day it was executed.

On June 27, 1923, the J. I. Porter Lumber Company made a deed for a large body of land, including the eighty-acre tract in question, to appellee for $40,300, $30,000 of which amount was paid in cash. Said deed was recorded on the 16th day of July, 1923. At the time of this conveyance neither the grantor nor the grantee knew of the existence of the deed from the Western Land Company to appellant. Both appellant and appellee had constructive notice, however, of the contracts and deeds of record relating to the eighty-acre tract in question.

After the Western'Land Company executed the deed for said eighty-acre tract to appellant, and before the J. I. Porter Lumber Company executed the deed for said eighty-acre tract to appellee, the J. I. Porter Lumber Company filed a suit and obtained a judgment canceling its contract with Blodgett because he failed to make the payments provided for therein.

Appellant contends for a reversal of the decree on the alleged ground that the instrument executed by the J. I. Porter Lumber Company to Blodgett on September 15, 1913, is either a conveyance or else a contract of agency to sell said eighty-acre tract of land. His learned counsel argues that if it is a conveyance then appellee is estopped by a deed of record prior in time and paramount to the deed under which he claims; and, if it is a contract of agency to sell land, then appellee is estopped because he had constructive knowledge of said contract, which had been duly recorded before he purchased the land. The answer to both arguments is that the instrument is neither a conveyance nor a contract of agency to sell land coupled with interest. On the contrary, the instrument is an executory contract for the sale and purchase of land to Blodgett or his assigns, with the privilege to resell in tracts of not less than forty acres upon payment of $6.75 per acre to the J. I. Porter Lumber Company. No legal title passed whatever by the instrument to Blodgett. It is specifically provided in the contract that, in case of resale in small tracts and the payment of $6.75 per acre to the J. I. Porter Lumber Company, said company will execute a deed for the tract sold to the purchaser thereof. All the rights acquired by appellant under his deed from the Western Land Company, of date June 13, 1918, were, such rights as it acquired from Blodgett. These rights were accorded to him by the decree rendered in this case.

Appellant also contends for a reversal of the decree because he paid taxes on the eighty-acre tract of land more than seven years under color of title. His 1913 contract for the purchase of the land did not constitute color of title. His deed of date June 13, 1918, constituted his first color of title, and at the time this suit was instituted he had not paid the taxes for 'seven years under his deed.

Appellant also contends for a reversal of the decree because the debt of $6.75 per acre was barred by the statute of limitations, not having been paid within five years after maturity. The acquisition of appellant’s title depended upon the payment of the purchase money, and until he pays the purchase money he cannot acquire the title. The statute of limitations has no application to this character of contracts, so far as the payment of the purchase money is concerned.

Appellant also contends for a reversal of the decree because the court rendered a money judgment against him. This was error. Appellant did not contract to pay the J. I. Porter Lumber Company, or its grantee, $6.75 per acre for the eighty-acre tract. He simply purchased it subject to the payment of that amount per acre. A lien for the amount on the eighty-acre tract of land is all appellee is entitled to.

Lastly, appellant contends that the lien on the land should be reduced to $462.40 because appellee only paid $5.78 per acre for it to the J. I. Porter Lumber Company. This was a matter between the J. I. Porter Lumber Company and appellee, and was of no concern to appellant. Appellee had the right to buy the contractual rights of the J. I. Porter Lumber Company, under the contract as made with Blodgett, as cheaply as he could get them, and it was the privilege of the J. I. Porter Lumber Company to sell such rights at its own price.

The decree is therefore modified by reversing the money judgment rendered against appellant, and, as modified, is affirmed.


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    Starnes v. Bender.
    Opinion delivered January 31, 1927.
    Attachment- — damages on forthcoming bond. — Where a forthcoming bond, given on attachment of casing cemented in an oil well, was issued under Crawford & Moses’ Dig., § 514, plaintiff’s damages recoverable' from the sureties on such bond for their failure to deliver the casing at the county seat, when the attachment was sustained, was the value -of the number of feet of casing which could be removed from the well, and not the amount stated in the bond as the value of the casing.
    Appeal from Nevada Circuit Court; James H. McCollum, Judge;
    modified.

      McRae é Tompkins and II. E. Rouse, for appellant.

      Gaughan <B> Sifford and Haynie, Parks & Westfall, for appellee.
   Humphreys, J.

This is an appeal from a judgment rendered by the circuit court of Nevada County upon a forthcoming bond in an attachment proceeding in said court, wherein appellee was plaintiff and Ingram G-rayson et al. were defendants. The writ of attachment was levied upon 860 feet 8%-inch 29-pound casing cemented in an oil well located in Union Township, in said county. Appellants then executed a forthcoming bond under § 514 of Crawford & Moses ’ Digest. When the attachment was sustained, appellants, sureties upon the forthcoming bond, tendered to the sheriff, in performance of the judgment of the court, all the casing in exactly the same condition and in the same place that it was at the time it was levied upon by said officer. The officer declined to accept the casing in satisfaction of the judgment unless delivered to him at the county seat, whereupon the court rendered a summary judgment against the sureties, appellants here, for $860, to be recovered if the casing was not forthcoming, from which is this appeal.

The sheriff did not have an appraisement made of the casing before taking the forthcoming bond, but based the amount of the bond upon the cost of the casing per lineal foot. The undisputed testimony in the case revealed that only one hundred feet of the casing could have been recovered by the sheriff, had he attempted to pull same out of the well at the time he made the levy, and that no more than one hundred feet could have been recovered by the appellants, or any one else, in attempting to pull same. The casing was cemented in the well, and could not have been moved without the use of nitroglycerine, a very powerful explosive, the use of which would have destroyed most of the casing. The highest price placed upon the casing, if lying out of the well on the ground, was $1.25 per foot.

The court was correct in ruling that the condition of the bond had been broken on account of a failure to deliver 100 feet of casing to the officer at the county seat; it erred in assessing $860 for the breach thereof. The damage sustained by appellee was the value of the number of feet recoverable, which, according to the highest estimate, was worth $125.

The judgment will therefore be modified by reducing same to $125, and, as modified, is affirmed.


author: Kirby, J.,

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    Adkins v. Remmel.
    Opinion delivered January 31, 1927.
    1. Landlord and tenant — nonperformance of contract — waiver. —If a lessor’s failure to complete repairs in the leased building within the time agreed, and his installing an elevator shaft without the lessee's consent, warranted the lessee in refusing to pay rent, such right was waived by the lessee agreeing to a settlement and executing notes in accordance therewith.
    2. Landlord and tenant — lien for rent. — Where, by the terms of a lease, a lien was created upon certain personal property, a decree holding that such property was bound for payment of the rent found to be due to the time the building was rented to another tenant, held proper.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor';
    affirmed.

      STATEMENT BY THE COURT.
    Suit was begun by Remmel, tbe lessor, against Adkins to recover a balance of $260 claimed to be due upon notes executed by Adkins for the rent of the storeroom at 816 Main Street, Little Rock, under a lease for a term of eight years, from November 1, 1921, at a rental of $150 per month, and for the sum of $1,679.10 on notes executed by Adkins to Remmel for the cost of the tile floor put in said building at his instance, upon its being reconditioned and repaired by the lessor after damage by fire.
    On February 8, 1923, the store-room was damaged by fire, which caused the lessee to move out of the building until the repairs could be made, which was agreed to be done by supplemental contract of March 17, 1923, wherein the lessor agreed “to restore the premises within a reasonable time, and which it is now expected will be restored within ninety days from March 8, 1923.” This also provides for the construction of the tile floor in the building, for which the lessee agreed to pay the amount of the cost to the lessor, in equal monthly installments during the remaining period of the lease, running six years from November 1, 1923. The parties also agreed that the lessor would not charge interest on this investment at the usual rate for the lessee’s agreeing that he mig’ht construct a stairway to the second floor, the first floor and to the ¿lley, and another to the basement to permit its use for storage, etc.
    •Appellant’s answer admits the execution of the lease and the supplemental contract, and the notes for the rent and payment of the cost of the tile floor, and alleged that the consideration to all the notes had failed, and denied that the cost of the floor was $1,679.10,. and that the notes therefor were secured by a lien. He set up, as a defense, breach of the covenant for repair of the building under the - supplemental agreement, and, by cross-complaint, alleged he had been damaged in a large sum by such breach for failure to complete the building in the time agreed. The decree was entered against appellant for the amount of $1,696.73 with interest, the item for rent recovery therein being $257.86 and the cost of the tile floor $1,437.87. The judgment for rent only was declared to be a lien on the personal property and fixtures, and appellant prosecutes his appeal from this decree.

      Sam T. & Tom Poe, for appellant.

      Frauenthal <& Johnson, for appelleé.
   Kirby, J.,

(after stating the facts). Appellant urges that the finding of the court below is not supported by the evidence, and that there was a failure of consideration, in any event, of the notes executed by him in payment for the tile floor in appellee’s own building, and from which he received no benefit whatever.

The testimony is in conflict as to the date the repairs on the building were completed, that of the lessor tending to show that it was ready for occupancy on June 18,1923, while some of the other testimony indicated it was not finished until in August. It is not disputed, however, that the parties made an adjustment on July 1, 1923, of the amount of the rent due under the lease contract, allowing the lessee the credits he was entitled to for being deprived of the use of the building on account of the fire during the period of repair, and agreement as to the amount of the cost of the tile floor. The lessee, Adkins, at that time executed the notes aggregating the amount of the floor cost, payable in installments of $22.52 per month, all being due at once upon failure to pay either of them, the first falling due August 1,1923.

Appellant knew the condition of the building and the status of the repairs at the time, and made no objection to the work nor claim that it had not been completed in time, or was not ready for occupancy, his first claim of the breach of contract being made by letter on August 1, 1923.

The supplemental agreement giving appellant a reasonable time to repair and restore the premises, expressing that it was expected to be done within ninety days from March 8, 1923, did not bind appellee conclusively to complete it by the expiration of that time, being an estimate rather of the time that would be required, and no objection was made, at the time of the agreement of settlement, of the amount of the rent due and the cost of the tile floor on account of it not being sooner completed, and appellant also afterwards put a card in the window advertising the store-room for rent, and directing persons to apply to him therefor.

If the condition of the repairs and the failure to make same within the time it was thought they could be completed, or the putting in of an elevator shaft additional, that appellant contends he did not consent to, had warranted appellant in refusing further to perform his contract on account of a breach thereof by the appellee, the lessor, he waived such right by the agreement of settlement abating or allowing him credit for the amount of the rent accruing during the period of repairs, and the execution of the notes in payment for the tile floor. Neither can we say that the finding of the chancellor in appellee’s favor is clearly against the preponderance of the testimony.

By the terms of the lease a lien was created upon certain personal property, and there was no error in the decree holding that it was bound to the payment of the rent found to be due to the time the building was rented to another tenant, after appellant’s refusal to occupy it.

The facts of this case do not bring it within the rule announced in Berman v. Shelby, 93 Ark. 472, 125 S. W. 124. We find no error in the decree, and it is accordingly affirmed.


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    Missouri & North Arkansas Railway Company v. Little Red River Levee District.
    Opinion delivered January 31, 1927.
    Levees — complaint asking for reassessment. — A complaint stating that plaintiff railroad company owns land in defendant levee district, and) that, since the original assessment of benefits in the district, the value of plaintiff’s land has declined to an almost nominal value while other land in the district has increased in value, does not justify a reassessment of benefits, since no express or implied authority has been given to make such, reassessment.
    Appeal from White Chancery Court; John E. Martinecm, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Appellant brought this suit against the Little Red River Levee District, organized under the general laws, and its board of commissioners and assessors, naming them, for the purpose ®f compelling a reassessment of its property and reduction of the assessment of benefits in accordance with the present assessed value of its property.
    It alleged that there were now outstanding approximately $75,000 in bonds of the district issued to provide funds to build and maintain a levee in the district, the bonds payable annually on the installment plan, the last maturing in the year 1939; that all the real estate in the district was assessed according to the benefits to be derived from the contemplated improvement, for the purpose of providing money to pay the annual installment of bonds and the interest thereon; that, at the time of the bond issue and the making of the assessment of the benefits against the property of the district, its main line had just been completed and was in a very prosperous condition, its assessed value, as fixed by the State Tax Commission at that time, being $10,400 per mile, and that the benefits assessed were based upon the value of the road at the time the assessment was made in 1913; that the lands in the district were agricultural in character, consisting of about 15,301 acres, only about 1,041 of which were at that time cleared and in cultivation, with 14,260 acres wild and unimproved; that, since the time of the original assessment in 1913, the railroad’s property has constantly decreased in value, and has only a nominal value at this time, as shown by the State taxing- officers, of $2,750 a mile; that the other lands .of the district have greatly enhanced in value, all being practically cleared and improved and are now capable of producing valuable crops of all kinds. That, at the present, a railroad which has only a nominal value is required to pay about one-third of the taxes to maintain the levee and pay off the bonded indebtedness; that the company applied to the board of commissioners and assessors for a reassessment and equitable adjustment of the taxes and benefits of the lands of the district, but was refused relief, and brought suit to compel the reassessment of the property of the entire district for distribution of the burden of taxation equally and equitably upon all the-#eal estate therein.
    The complaint alleged that the first bond issue was for $50,051.43 in 1913; that later, in 1916, an additional issue of $55,000 was made; in 1917 a third bond issue of' $16,500 was made; that the first issue, with interest, had been fully paid, leaving the second and third issues, amounting to $71,500, outstanding and unpaid, with taxes to be collected in annual installments for payment up to and including the year 1939; that these bonds bear interest at 6 per cent, per annum. It alleged the change of the character of property, as already stated, the decrease in the value of the railroad property to the nominal value of $2,750, as assessed by the State, and that the other property had steadily increased.
    “Plaintiff states that, while said realty as above set forth has thus been enhanced in value by reason of the benefits derived from the improvement, this plaintiff, in truth and in fact, has only, at most, received a nominal benefit as a result of said improvement; that, as the present assessment and the payments of taxes thereon now stand, the same is very inequitable, unjust and highly discriminatory, and that it is entirely out of proportion to the amount paid on other property in said district and not in accordance with the benefits accruing to the respective properties therein. Plaintiff states that, under said original assessment, and while deriving only nominal benefits from said improvement, and notwithstanding the greatly increased benefits to other real property in said district, it is required to pay approximately one-third of the total taxes levied and collected in said district for said improvement; that, in view of the said altered condition of the respective properties in said district and of the greatly deteriorated condition of plaintiff’s property, said tax as levied and collected is confiscatory, and, if same is continued as thus originally fixed, will amount to confiscation of plaintiff’s property in said district.
    “Plaintiff avers that the benefits to said real property in said district should be reassessed and, without reducing the total assessed benefits accruing to the whole of said property in said district, and the consequent revenue derived therefrom, the same should be more equitably distributed and placed upon said respective properties commensurate with the benefits accruing thereto; that this plaintiff has made repeated requests and demands upon the defendant and its officers for such reassessment of the benefits, but that the said defendant and its officers decline and refuse the same. ’ ’
    It is also alleged that the board of commissioners and •assessors, naming the members thereof, refused to make reassessments of benefits or any readjustment, and that, unless they were compelled to do so, the “plaintiff will suffer irreparable injury and its property will be confiscated by this unjust and discriminatory taxation.”
    Plaintiff alleged that it had no adequate remedy at law, and prayed an order requiring the defendants and their successors in office to make and cause to be made a reassessment of the benefits accruing to the respective properties in the district and causing taxes to be collected thereon in keeping with equity and accordance with law, and asked that defendants be restrained from collecting or attempting to collect any tax levied upon the original assessment or until the property was reassessed according to its value. A general demurrer was interposed to the complaint and sustained, and, plaintiff declining to plead further, it was dismissed, and from this order the appeal is prosecuted. .

      Shouse & Rowland, for appellant.
   Kirby, J.,

(after stating the facts). It appears that this levee district was organized under the general law, and there is no complaint of any irregularity, defect or mistake in the organization or of any injustice or discrimination in the assessment of benefits, relief being sought only because of an alleged changed condition in values of the property, plaintiff’s having declined to almost a nominal value while the other property of the district has been improved, cultivated and increased in value.

The granting of the relief prayed would necessitate a reassessment of the benefits of the property of the district, the increase of assessment and tax upon the other lands of the district in proportion to any reduction made on that of appellant, since no decrease can be made that would impair the obligation of the district to pay its bonds nor its ability to do so. The assessment, being made in accordance with the law (§§ 6823-6831, Crawford & Moses’ Digest) became a lien on all the lands of the district in the nature of a mortgage, as provided by law, and necessarily upon each tract as shown by the lists filed in the'county clerk’s office, it being provided only that, at any time before judgment in any foreclosure proceeding brought to enforce the lien, an error made in the description of any of the lands embraced in the assessment or lists can be corrected.

No authority is given for reassessment of benefits on ■changed or different values, or reduction or increase of the amount thereof, against any of the lands of the district, it not being contemplated, evidently, that there could be any such material change in condition as would require a change in the benefits assessed during the time for the payment of the improvement.

In any event, no authority is given in the general laws, under which this district was organized, as is the case in acts providing for the organization of some other improvement districts, for reassessment of benefits upon the property contained therein, and none such can be implied, as incident to the authority given for carrying out the purposes of the law, authorizing such reassessment. It follows that the complaint did not state a canse of action, and no error was committed in sustaining the demurrer thereto.

The judgment is affirmed.