text:
    St. Louis Southwestern Railway Company v. Terral.
    Opinion delivered November 26, 1928.

      John R. Turney, A. H. Kishaddon, Gaughan & Sifford, Elbert Godwin and Woolridge & Woolridge, for appellant.

      W. R. Donham, for appellee.
   Humphreys, J.

This is an appeal from a judgment rendered in favor of appellee in the Pulaski Circuit Court, Third Division, for $1,500 on an intervention filed by him to enforce a lien under the attorneys’ lien statute, against the proceeds of a judgment rendered in said court in a friendly suit brought by Mrs. J. E. Armstrong, as the administratrix of the estate of her husband, J. E. Armstrong, for the benefit of herself as a widow and the next of kin, against appellant, to recover damages for injuries received by him while in its employ, which caused his death. Appellee predicated his right to a lien on the proceeds of the judgment upon allegations that he had entered into a written contract with Mr. and Mrs. J. E. Armstrong to bring suit; that, after the death of J. E. Armstrong, he obtained the appointment of Mrs. J. E. Armstrong as the administratrix of the estate of her deceased husband in order to bring- the suit; and that he subsequently broug-ht the suit for her in her representative capacity ag-ainst appellant in the circuit court of Calhoun County, which suit was removed to the Federal court at El Dorado, and afterwards dismissed' by her without his consent. The written contract of employment was made an exhibit to the complaint, and is as follows:

“This contract, made and entered into by and between Terral & Cruce, a firm of lawyers of the city of Little Rock, Arkansas, parties of the first part, and J. E. Armstrong land wife, parties of the second part, witnesseth:

“That whereas the said J. E. Armstrong was injured by the Cotton Belt Railroad Company on August 26,1927, and is desirous of prosecuting his claim for damages against said Cotton Belt Railroad Company for damages arising from said injuries, and that said parties of the second part, by this contract, employs said parties of the first part to represent them and prosecute their claims, and agree to pay them as their fee one-half of the amount recovered, either by litigation or compromise settlement. It being understood that no compromise or settlement shall be made without the consent and approval of said parties of the second part; and parties of the first part, upon their part, hereby agree to prosecute said case through all courts necessary, using their very best skill and ability, for a fee as above stated.

“Witness our hands and seals on this, the 7th day of September, 1927.

“Terral & Cruce,

“Parties of the first part.

“J. E. Armstrong,

“Mrs. J. E. Armstrong,

“Parties of the second part.”

On motion of appellant, C. M. Cruce, who signed the contract with appellee, was made a party to the intervention, and prayed and filed a disclaimer alleging that he was not a lawyer but merely a law student in Terral’s office, and that the contract was signed “Terral & Cruce” solely at the instance oif J. E. Armstrong, who desired the contract drawn in that manner, as Cruce was a friend of his and was familiar with the investigation of Armstrong’s injury. He was dismissed as a party, and the cause proceeded thereafter in the name of Tom J. Terral as intervener.

Tom J. Terral testified that, after Ms employment, lie made investigations and gathered facts preparatory to bringing the suit, and after the death of J. E. Armstrong he .carried on negotiations with appellant’s claim agent in an effort to make a settlement with the knowl- • edge of Mrs. Armstrong; that she and members of her family came to his office and discussed the case with him; that, after a failure to settle with the claim agent, he informed Mrs. Armstrong it would be necessary to administer upon the estate of her husband to enable him to file a suit, and advised that she. take out letters of administration ; that she consented, and he obtained her appointment as administratrix for the purpose of bringing the suit; that he thereafter filed a suit for her in her representative capacity in the circuit court of Calhoun County against appellant to recover $60,000 damages on account of the injuries received by her husband while in its employ, which resulted in his death; that, on motion of appellant, the suit was transferred to the Federal court at El Dorado, and during the pendency thereof he learned that a settlement had been effected, and filed an intervention for his fee, praying that same be declared a lien upon the proceeds of the settlement agreed upon, but that his intervention was dismissed for the want of jurisdiction, and without prejudice to him; that on the afternoon of November 22, 1927, he received a letter from Mrs. Armstrong, - discharging Mm, upon the alleged ground that she had no authority, as administratrix of the estate of her husband, to employ a lawyer to represent her or his estate in a suit to recover damages for the injuries received by him while in appellant’s employ, and that the contract of employment signed by her had no legal value or in any way bound her as administratrix of the estate of her deceased husband.

Mrs. Armstrong testified that, although she knew Mr. Terral was handling the case after her husband died, she never employed him to do so, and when he had her appointed administratrix he informed her that it was for the purpose of administering on her husband’s estate, and did not telpher that it was for the purpose of bringing suit; that she never authorized him to bring suit, and did not know that he had brought a suit until after she wrote him a letter informing him that she was not bound by the contract of employment signed by herself- and husband, and requesting him to return his copy of the contract to her.

The record reflects that the letter she wrote to Terral was dictated by her pastor, Dr. Glenn E. Green, with the assistance of the claim agents of appellant company and the Missouri Pacific -Railway Company, all of whom participated in the settlement or compromise of the claim with Mrs. Armstrong, without consultation with Terral. Pursuant to the compromise agreement she received $3,000 for the benefit of herself as widow and next of kin, and $575 for the benefit of the estate. She after-wards dismissed the suit pending in the Federal court, and brought this -suit for the purpose of effectuating the settlement she had made with appellant.

The first contention of appellant for a reversal of the judgment is that Mrs. Armstrong’s signature to the written contract of employment was mere surplusage, and, as she had no interest in the subject-matter of litigation until after the death of her husband, the contract was a nullity as far as she was individually concerned, and did not and could not bind her in capacity as administratrix, because she was appointed administratrix some time after the death of her husband. It may be said, in passing, that she had a contingent interest in the subject-matter of the litigation at the time she signed the contract as widow, in case her husband should die as a result of the injury. But, be that as it may, Mrs. Armstrong certainly adopted the contract as her own after the death of her husband, if the testimony of Terral is accepted as true. The trial court accepted his testimony as true, and determined the disputed issue of fact with reference to a subsequent ratification of the contract against appellant, and, as the finding was based upon substantial evidence, the verdict cannot be disturbed by this court on appeal. Terral testified that Mrs. Armstrong and' other members of the family visited his office after the death of J. E. Armstrong and consulted with him with reference to the case during the negotiations with appellant for a settlement, and, after failing to compromise the claim, she agreed to accept the appointment as administratrix of her husband’s estate in order to enable him to file suit against appellant for her, in her representative capacity, to recover damages for the injury received by her husband resulting in his death, and that, with her full knowledge, he subsequently brought the suit. This conduct and these acts on her part necessarily led appellee to ’believe that she had adopted and made the contract her own. Her conduct and acts are inexplicable upon any other theory than that of an adoption by her of the contract.

What we have said with' reference to the effect of her conduct and acts after the death of her husband necessarily disposes of appellant’s second contention for a reversal of the judgment, which is that there was no ratification by Mrs. Armstrong of appellee’s action in instituting suit on her behalf in the Calhoun Circuit Court.

Appellant’s third contention for a reversal of the judgment is that the contract was void ab initio, and not subject to ratification. This contention is based upon the fact that the contract was signed by Cruce, in connection with Terral, who was not licensed to practice law. By reference to the contract it will be seen that it was signed by “Terral & Cruce” as parties of the first part. The first paragraph of the contract is as follows:

“This contract made, and entered into by and between Terral & Cruce, a firm of lawyers of the city of Little Rock, Arkansas, parties of the first part, and J. E. Armstrong and wife, parties of the second part, witnesseth. ’ ’

Appellant cites in support of its contention the case of McIver v. Clark, 69 Miss. 408, 10 So. 581. This; is a Mississippi case, and in that State a privilege tax is imposed by statute upon each person practicing law. The statute imposing the license tax contains the following provision: “All contracts made with any person who shall violate this act, in reference to the business carried on in disregard of this law, shall be null and void.” The court interpreted the statute as invalidating the contract signed by a firm of lawyers when one of them had paid his license tax and the other had not. There- is no statute in our State nullifying a contract made by a lawyer who- has not paid his license tax. The case cited is not applicable to the facts in the instant case.

■Continuing, appellant argues that a void contract cannot be ratified. Three cases are cited in support of this position. Texarkana v. Friedell, 82 Ark. 531, 102 S. W. 374; First National Bank of Waldron v. Whisenhunt, 94 Ark. 583, 127 S. W. 968; Dell Special School District v. Johnson, 129 Ark. 211, 195 S. W. 373. These cases all turn upon a lack of power to make the contract in the beginning. In the instant case there was no lack of power to make the contract. Such a contract as this is not prohibited and condemned as null and void by statute.

Appellant’s last contention for a reversal of the judgment is couched in the following language:

“Proof as to the alleged ratification of the contract was not competent, in view of plaintiff’s intervention, in which he sought to recover and fix the statutory attorney’s lien on the judgment rendered in the Pulaski Circuit Court, solely on the existence of the written contract introduced in evidence.”

It is true that the written contract was attached to the intervention as an exhibit, hut the conduct and acts of Mrs. Armstrong after her husband’s death with reference to the case were alleged in the intervention. We do not understand that appellee relied solely upon the written contract as a basis for recovery, but relied upon the conduct and acts of Mrs. Armstrong after the death of her husband as a ratification or adoption of the written contract as her own. We think the proof of ratification was competent.

No error appearing-, the judgment is affirmed.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Wilson v. Interstate Construction Company.
    Opinion delivered November 26, 1928.

      U. C. May and Starbird & Starbird, for appellant.

      Evans & Evans, for appellee.
   Kirby, J.

Appellants brought this suit to enjoin the appellee company from proceeding with the construction of the State highway through the city of Booneville, over the route condemned therefor by the county court at the instance of the State Highway Commission.

The complaint alleged that, under the order and judgment of the county court condemning the land, at the instance of the State Highway Commission, a copy of which was attached to the complaint, the appellee, under its contract with the State Highway Commission, was about to forcibly enter and appropriate plaintiffs’ lands, without compensation; that the county judge, Bay Blair, had made the order of condemnation, but had not paid or offered to pay for the lands taken; that the lands were wholly within the city of Booneville, a city of the second class, and the highway will be and is a part of the streets of the city of Booneville; and the county court was wholly without jurisdiction to condemn lands for streets in the city of Booneville, and without jurisdiction to make an order allowing a claim for damages for lands condemned wholly within such city.

A general demurrer and answer was filed. The answer alleged that the State 'Highway ICommission, prior to any date in the complaint, took over the road, now State Highway No. 10, and had a survey made for the purpose of determining the proper route of the same, and, after such survey and determination, called upon the county court of Logan County to open, change and lay out said Highway No. 10; that the county court, on February 6,1928, made and entered an order, changing, opening and laying out a right-of-way for said highway, and the same crosses the farms of the plaintiffs Speer and Wertz, and takes a few feet of the north side of the land of plaintiff Wilson; that the lands condemned by the county court for said Highway No. 10 were within the corporate limits of the city of Booneville; that the State Highway Commission has taken over said highway for the purpose of construction and maintenance, including that part of it which is a part of Main Street, in Boone-ville; denied that plaintiffs had no adequate remedy at law, and that no* provision for damages was made, and that the county court was without authority to make the order, and prayed dismissal for want of equity.

A temporary injunction was granted, and the cause was tried on June 14, 1928, upon the amended complaint, answer, and demurrer of the defendant. The temporary injunction was dissolved, and the demurrer to the amended complaint sustained, and, the plaintiffs refusing to plead further, the complaint was dismissed for want of equity.

The order of the county court attached to the complaint reads:

“On this the 6th day of February, 1928, is presented to this court the petition of the State Highway Commission of the State of Arkansas, asking for changes in whole or in part of State Highway No. 10, section No. 2, which is a part of the State Highway system located in this county; said road being commonly known here as the G-reenwood-Booneville road. It is further ordered that, if there is any landowner who is affected by this order, who feels himself aggrieved or damaged by reason of any changes in whole or in part of route over his land, he must present his claim to this court within one year from the date of this order, or be forever barred.”

The lands condemned for the right-of-way were to widen and also slightly change the route of State Highway No. 10.

Appellants insist that the county court was without power or jurisdiction to condemn the lands in a city of the second class to widen a street which was designated and had become State Highway No. 10. Section 3 of act No. 5 of the Extraordinary Session of 1923 designates as State highways primary and secondary roads as designated by the Highway Commission and approved as shown on the Highway Commission’s map, and provides “except that portion of said roads traversing in towns of 2,500 or over inhabitants.” See Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24.

Section 69 of said act No. 5 provides:

“-The State Highway Commission shall call upon the county court to change or widen, in the manner provided by § 5249 of Crawford & Moses ’ Digest, any 'State highway in the county where the State Highway Engineer deems it necessary, for the purpose of constructing, improving and maintaining- the road. In the event the county court should refuse to widen the road, as requested, the commission may refuse to construct, improve or maintain that portion of the road until a suitable right-of-way is provided,” This statute has not been repealed by later acts. England v. State Highway Commission, 177 Ark. 157, 6 S. W. (2d) 23.

Section 1 of act 184 of 1927 authorizes the State Highway Commission to designate such streets or parts of streets within the corporate limits of cities of the first and second class as are actual or direct continuations of duly designated and established State highways, passing through such cities of the first and second class, selecting the most direct and practical route through such municipal corporations to make the State highway passing through continuous. The amendment to this section, by act No. 8 of the special session of 1928, § 1, gives the Highway Commission additional power to designate streets or parts of streets within incorporated towns as a continuation of duly designated and established highways passing through such municipalities. This later act gave the authority to the Highway Commission to select and designate the route of the State highway through cities of the first and second class, and the amendment thereto appears to authorize the Highway Commission to designate the streets or parts of streets as a route'for the State highway through corporate towns.

Since the Highway Commission is given authority to* designate the streets and select the route for continuation of a State highway passing through cities of the first and second class, selecting the most direct and practical route for the continuous highway, and the county court is given authority to change or widen in the manner provided any State highway in the county where the State Highway Engineer deems it necessary for the purpose of constructing, improving and maintaining such State highway, the county court had the power to provide a suitable right-of-way by the changing and widening of the streets selected and designated as such highway. It follows that the court did not err in so doing.

It has also been held that payment for the taking of private property for the construction of a public road need not precede the taking of the property, and that, in order to give courts of equity jurisdiction to prevent the taking of the property on the g’ronnd that the complainant had no adequate remedy at law, it devolves upon him to show there was no sure and certain way for him to be paid, the burden being upon him to prove that there were no funds on hand in the county treasury with which to pay his claim for damages. The allegation here, however, was only that the county court had made the order of condemnation but had not paid or offered to pay for the land condemned. Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. (2nd) 561. See also Independence County v. Lester, 173 Ark. 796, 293 S. W. 743.

The court did not err in sustaining the demurrer and dismissing the complaint, and the judgment is affirmed.


text:
    Dunn v. Turner Hardware Company.
    Opinion delivered November 26, 1928.

      Henry Stevens, for appellant.

      McKay & Smith, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment in the Columbia Circuit Court rendered against appellant upon a supersedeas bond. It was alleged that appellee herein obtained a judgment on the 24th day of July, 1923, in the chancery court against defendants, Gr. A. Dunn, J. M. Dunn, J. W. Rushing and Joe Joiner, for possession of a brick store building, situated on lot 351, in Magnolia, Arkansas, and for damages in the sum of $1,000; that on August 4, 1923, the defendants, for the purpose of staying'proceedings on the judgment, executed an appeal ibond, with C. C. Taylor as surety, agreeing to perform the judgment appealed from, in case it should be affirmed or any judgment or order rendered, not exceeding the amount of $1,000, “and all rents and damages to the property during the pendency of the appeal upon which the Turner Hardware Company is kept from possession of said property by reason of the appeal.” That the appeal was perfected and the decision of the chancery court affirmed in December, 1924. That plaintiff was deprived of the possession of the property during the pendency of the appeal, upon a supersedeas issued by the clerk of the chancery court upon the filing of the bond, preventing the sheriff from taking possession of the said property and delivering it to plaintiff. That the rental value of the property during the pendency of the appeal until the final determination of the cause in the Supreme Court amounted to $1,350, for which judgment was prayed. A copy of the original judgment and the appeal bond are exhibited with the complaint.

The answer admitted the recovery of the judgment, the appeal therefrom, the execution of the bond, and the supersedeas. Alleged that the $1,000 judgment appealed from had been paid, and denied liability for the payment of rent during the pendency of the appeal, alleging a breach of the bond that released the sureties because of the filing of another suit for possession of the store by appellee before the determination of the cause on appeal. It was alleged that appellee had filed suit for possession on the 5th day of April,-1924, and caused a writ to be issued and placed in the hands of the sheriff for execution, making it necessary for defendant, Dunn, to execute a bond in the sum of $4,800 in order to retain possession, which he did,-and under which he held possession of the property till June 1, 1924, at which time it was delivered to appellee. Denied that he had been in possession of the property or in control of same, under the bond sued on, since the 5th day of April, 1924, when the appeal in the case was still pending and undetermined.

A reply was filed, denying the allegations of the answer and any violation of the terms of the appeal bond by appellee herein, and that defendant was dispossessed by any action of appellee before the disposition of the appeal. There was testimony introduced tending to show the rental value of the property from the execution of the supersedeas bond until its delivery to appellee, and a judgment for the rents rendered against appellants.

Appellants insist that the sureties were released from liability upon the appeal and supersedeas bond for any rents accruing during the pendency of the appeal, because appellee had attempted to procure possession of the property by a written demand and suit brought before the case had been finally determined. It does appear that the appellee demanded possession of the property after the bond was made and before the cause was decided by the Supreme Court, and also brought suit against appel-' lants and had a writ of possession issued on the 5th day of April, 1924, but appellants refused to surrender possession, and gave bond for its retention. Later appellants surrendered'possession of the building on June 3, 1924. The appellants, upon signing the supersedeas bond, became liable for all rents and damages to the property during the pendency of the appeal, by which the Turner Hardware Company was kept from possession of the property. Had appellants surrendered the possession to appellee after the appeal was perfected and the supersedeas bond executed, before the determination of the appeal, they could not, otf course, have been held liable to the payment of any rent thereafter accruing’, and this without regard to whether the possession was voluntarily surrendered or upon a writ of possession sued out in another case. The answer shows, however, that the possession was never surrendered by appellants until in June, when the building was turned over to and accepted by appellee. The fact that a bond was given by appellants to retain possession in the later suit brought .before the determination of the appeal by the Supreme Court, and that the sureties on such bond would also have become liable to the payment of the rents upon judgment against appellants for the possession of the property, could not release the makers and sureties upon the appeal bond from liability to the payment of rent accruing during the pendency .of the appeal, until the possession of the property was delivered to the appellee.

Some of the instructions are complained of, but, on the whole, they declare the law correctly, and the testimony objected to as incompetent and having been erroneously admitted was brought out upon cross-examination of the witness by appellants, and the error, if any, was invited, and harmless under the circumstances.

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


author: Mehaffy, J.

text:
    Dumas v. Daniels.
    Opinion delivered November 26, 1928.

      Pat McNalley and Jordan Sellers, for appellant.

      W. J. Goodwin, for appellee.
   Mehaffy, J.

This is a snit brought by appellee, R. B. Daniels, to reform a mineral deed so as to show a conveyance of 1/32 of the mineral rights and so as to give plaintiff the right to collect and receive % of any oil royalties and gas rentals that may be produced on the following described land: “The southwest quarter of northeast quarter, section 11, township 17 south, range 14 west, Union County, Arkansas.”

It is alleged that on October 28, 1922, appellant, Gr. C. Dumas, ag'reed with appellee, Daniels, to sell and convey to him a 1/32 interest in the oil, gas and mineral rights in, on, under and pertaining to the following described lands; then ¡follows a description of the land.

It is further alleged that it was the agreement between the parties that by said sale it was intended that Gr. O. Dumas should convey to R. B. Daniels a one-fourth interest in the 1/8 royalty reserved and to be reserved under any oil and gas lease pertaining to said property; that the said deed recited in the granting clause a conveyance of 1/32 part of the oil, gas and mineral rights, but, in designating the amount of royalty to be collected by virtue of said instrument, a mutual mistake was made, and the amount was stated in the deed as a 1/32 interest of any oil royalty or gas rentals, when it should have stated a one-fourth interest in any oil royalty or gas rentals.

Appellee states that he paid the appellant, and the appellant refused to correct the error, and that said error prohibits him from making a sale of the mineral rights owned by him, and the prayer is to reform the deed as above mentioned.

Gr. C. Dumas filed answer, denying all the material allegations of the complaint. There was thereafter an amendment to the complaint filed, making Medford Dumas a party, alleging that said Medford Dumas had purchased some interest in the land in controversy, and praying a reformation against him also.

Medford Dumas ¡answered, alleging* that he purchased without notice, and asking* that the' complaint he dismissed.

Thereafter, on the 9th day of February, E. Holt Ash-ford, Aylmer Montgomery, Kate Ward and Emma Henderson filed petition to be made parties, setting up the deed of A. E. Ashford, one of the grantees in the deed sought to be reformed, and alleging* that they were the only heirs, and they adopted the complaint of the appellee, R. B. Daniels.

The testimony of appellees tended to show that the allegations in the complaint were correct. The deeds were introduced, and defendant’s testimony tended to show that the deed was according to the intention of the parties.

It is unnecessary to set out the testimony in full. The testimony ¡as far as necessary will be referred to in the opinion.

The court entered a decree to the effect that the deed under which appellees hold title to said mineral rights provided that the grantees should, take a 1/32 part of the royalty reserved under the original lease, now expired; and that said clause is repugnant to the granting clause, which conveyed 1/32 part and interest in and to all of the oil, gas and mineral rights, and the said clause is therefore rejected. The court also held that the appellees, other than R. B. Daniels, were the sole heirs at law of A. E. Ashford, who had died in the year 1923. The court further found that Medford Dumas, one of the defendants, was not an innocent purchaser of any part of the mineral rights sued for, and that the sale under which appellees claim title is in all things legal, and that R. B. Daniels is the owner of one-half of 1/32 mineral rights, and that E. Holt Ashford, Aylmer Montgomery, Kate Ward and Emma Henderson are the joint owners of one-half of the 1/32 mineral rights, and that they are entitled to take and receive as their portion of the gas, oil and minerals of the said deed, 1/32 part of the total production from the Said described lands. It was ordered by the court that the title to 1/32 part be vested in the plaintiffs, free from all claims whatsoever of Gr. C. Dumas and Medford Dumas,.and the appellee’s title thereto was forever quieted. The appellant excepted, and prayed ¡an appeal to the Supreme Court.

It is first contended that the complaint does not state a cause of action, and that it is contradictory in its allegations, and sets out as a basis for reformation ¡an impossible agreement between the parties.

A case very similar to the instant case is that of Dumas v. Crowder, ante, p. 143. It involves the same lands; the same contentions are made, although the plaintiff in that case was different from the plaintiff in this case; but the same contention was made as to the complaint not stating a cause of action, etc. In the case decided in October of Dumas v. Crowder, ante, p. 143, this court said:

“Appellants now say that there remains only one question for this court to consider, and that is, whether the complaint states a cause of action against any or all of the defendants. Appellants cite Rowe v. Allison, 87 Ark. 206, 112 S. W. 395, and quote therefrom the following: ‘There is no oral testimony before the court, and there ¡are no recitals of evidence in the judgment, and therefore a conclusive presumption must prevail that the evidence sustains the decree of the court, so far as ■it is possible for a decree based on the complaint to be sustained by evidence. If the decree is without the issues, or the complaint does not state a cause of action, this presumption cannot ¡aid the appellee. Jones v. Mitchell, 83 Ark. 77, 102 S. W. 710. Where -the decree is not responsive to the issues, it is void. Rankin v. Schofield, 81 Ark. 440, 98 S. W. 674.’

“Appellants say that the complaint herein does not state a cause of action against any of the appellants. We cannot agree with counsel in this contention, except as to M. L. Dumas and Olive E. Dumas, who should be eliminated from the second deed of appellant Gr. O. Dumas to appellee, as reformed by the chancery court. Both parties agree that they 'should be eliminated from this deed, and we concur with this agreement. The deed referred to "is Exhibit B to the complaint.

“In this case appellants did not demur to the complaint. They filed an answer, thereby treating the allegations of the complaint as .sufficient to put them to answer. They are therefore asserting for the first time, in this court, that the complaint does not state a cause of action. As said by this court in Cohn v. Hager, 30 Ark. 25: ‘If the defendant had doubted the sufficiency of the pleadings, he should have demurred, and brought the question of its legal sufficiency before the eourt; but, instead of this, he has treated them as sufficient in law to put him to answer, and, having answered and gone to trial upon the issue formed, even if the pleadings were technically insufficient, the question cannot for the first time be raised in this court.”

It will therefore be seen that the identical question presented here wias presented to the court in the case of Dumas v. Crowder, supra, and it was there held that, since the appellant did not demur to the pleadings, but filed answer and treated the complaints as sufficient, and testimony having been introduced without objection, the pleading's must be treated as amended to conform to the testimony taken without objection. This question is ruled by the case of Dumas v. Crowder.

It is next contended that the decree is not responsive to thé issues, and many authorities are cited in support of the contention, such authorities holding that a decree reforming a.n instrument must be responsive to the issues presented. Appellant ¡argues that the sole issue in the case at bar was the right to reformation, and that this issue is not mentioned or hinted at in the .decree.

“The term ‘reform’ means to correct; to make anew; to rectify. .Here we "have all the foundation of the judgment, including the verdict of the jury, which is the basic rock on which the .judgment is formulated. We have, following this, the final judgment of the court, which is the sentence. This itself adjudicates the guilt of appellant and sentences him, in accordance with the verdict and judgment. From this data certainly we can do this which the court a quo, in due order, should have 'done. We accordingly hold that the judgment of the court below should be reformed and corrected, so as to mate it read, in connection with the judgment as entered and following the verdict, as follows * * * The 'State’s motion to reform is accordingly granted.” Wm. McCorquodale v. State of Texas, 211 U. S. 432, 29 S. Ct. 146, 53 Law ed. 269.

“The equitable remedy of reformation of written intruments, or the equity to reform a written instrument, is the remedy afforded by courts of equity to the parties and the privies of parties to written instruments which import a legal obligation to reform or rectify such instruments whenever they fail, through mistake or fraud, or a combination of both fraud and mistake, to express the real agreement or intention of the parties.” 23 R. C. L. 308.

“Reformation is that remedy in equity by means of which a written instrument is made or construed so as to express or conform to the real intention of the parties, when some error or mistake has been committed. This rule is usually limited to mistakes of fact, although relief has-been granted'because of a mistake o| law.” 34 Cye. 904.

It will therefore be seen that the chancery court corrected and rectified the instrument; reformed it so as to make it what he found the parties intended. This was responsive to the issues. This was what the appellee asked. To be sure, they possibly did not get all they asked in reforming the deed, but they asked for a reformation, a correction, and the court entered a decree correcting it.

It is next contended that the Ashford heirs were never made parties. ' They came into court, asked permission to be made, parties, alleged that A. E. Ashford wias dead, and that -they were his sole heirs at law. Testimony was taken; no objection was made to their being made parties; and the court found that one of the original grantees, A. E. Ashford, had died, and these appellees were his sole heirs at law.

The appellant next argues that there was a variance; that no deed similar to the one set out in the complaint was exhibited or introduced in evidence. There was no objection on the part of appellants to the Ashford heirs being made parties; it clearly appeared that their ancestor ‘Was one of the original grantees, and no objection was made to proof on this issue.

It is next contended that there is not sufficient proof of a mutual mistake. We think that the testimony of the witnesses, together with the conveyance itself and the provisions therein, justified the chancellor in finding that there was a mistake, and that the decree reforming the deed was proper. But it is said that no reformation could be had against M. L. Dumas. We do not agree with the appellants in this contention. The testimony shows that M. L. Dumas was a brother of Gr. C. Dumas, and he testified that he acquired an interest in this land in 1925, and that he had a conversation with R. B. Daniels and Mr. Ashford, but that this conversation was with reference to a seven-eighths interest.

There is other testimony tending to show7 the knowledge of M. L. Dumas, and it is further shown in the testimony that Daniels was wholly unfamiliar with conveyancing, knew nothing whatever about it, and that this was the first transaction of the kind he had ever been interested in, and that he accepted the deeds on the statement of Mr. Dumas, thinking he was getting the interest to which he was entitled, and that he understood from Dumas that he was to get 1/32 of the output of the entire 40 acres, and that this included one barrel out of every 32; and, if _this wrere true, of course it would include a portion of the part reserved by Dumas. On the other hand, Dum'as was in the habit oif dealing in leases of this character; familiar with transactions of this kind; knew the appellees, and must have known that they were not familiar with transactions of this kind, and that they relied on his statement.

Onr conclusion is that the chancellor was justified in reforming the instrument as he did, and the decree is therefore affirmed.


text:
    Kull v. Noble.
    Opinion delivered November 26, 1928.

      June R. Morrell, for appellant.

      Collins & Collins, for appellee.
   Mehaffy, J.

The appellee, plaintiff below, brought this suit in the 'Sevier Circuit Court against the appellant, defendant below, to recover the sum of' $104, with interest, alleged t-o be the balance due on the price of a -certain piece of machinery known as a hog machine. The evidence shows that there is a difference between the make of the hog machine used in sawmills and the machine used in veneer mills; that they required a different arrangement. The appellant operated a veneer mill, and manufactured boxes, baskets, crates, caskets, etc., and it is contended that this machine was unfit for use in a veneer mill. The machine was bought by correspondence, and it was described and known as 2-C Mitts-Merrell hog machine. The appellant contended that the machine was bought through representations in advertising matter, and that it was represented as of the (kind and character used in a veneer plant. And he also contended that it was wholly unfit for use in a veneer plant. Efe also alleged that he had made an advance payment of $96, and asked judgment in a cross-complaint for that amount, with interest.

Appellant, according to his testimony, bought the machine, relying solely upon the representations of the plaintiff in its advertising matter, and had no opportunity to inspect the machine, but that it Was shipped subject to an inspection; that, when he saw it, he found that it was not the kind and character represented by appellee, and he refused to accept it, and promptly notified the appellee that the machine was at the station subject to his order. The appellee refused to take the machine back, and brought suit for the balance due. There was a verdict for the appellee for $104, with interest, and this appeal is prosecuted to reverse the judgment entered thereon.

The evidence showed that the machine was a known, described and defined article of manufacture, and was bought by appellant, relying on the description in advertising matter. The appellee is not a manufacturer, but a dealer in second-hand machines. The undisputed proof shows that this was the kind of machine ordered, and the undisputed proof also shows that it was unfit for use at appellant’s plant.

Appellant’s first contention is that the court erred in refusing to permit witness Kull to testify that he would not have bought the machinery if he had seen the description as contained in appellee’s Exhibit G-. Appellee’s Exhibit Gr was a description of machine which appellee’s evidence showed was mailed to the appellant, but which appellant’s evidence shows was never received. And it appears from appellant’s testimony that, if he had received this exhibit, he could have told from it that the machine was unfit for his use. But this testimony was not competent, because, when one buys a known manufactured article, calls for that article and gets the article that he asked for, it is not competent to show that, if he had possessed more accurate information about it, he would not have purchased it, or would have purchased some other kind of machine.

If one should order an Underwood typewriter of a certain make and certain number, and an Underwood typewriter of that make and number was shipped to him, it would be wholly immaterial whether it was fit for his use or not, and he would not be permitted to testify that, if he had known anything more about it, or if he had seen the machine, he would not have purchased it. And that is true of the testimony offered by appellant as to this exhibit. He himself says that he purchased or ordered what is known as 2-C Mitts-Merrell hog machine from the appellee. He says he knew nothing about this kind of a machine, but that he ordered it from the list that'appellee furnished hita; that, when he inspected it on its arrival, he ascertained that it was not the 'kind of a machine he wanted; that it was a sawmill hog, instead of a veneer hog, and that he could not use it. He said he relied solely, in ordering this machine, upon the representations contained in the list which he had, and that he never received the cut introduced as Exhibit Gr to the testimony of appellee.

Appellant next contends that the court erred in refusing to submit appellant’s theory of the case to the jury. He insists that a peremptory instruction should have been given on behalf of the appellant, for the reason, as he contends, that the undisputed testimony shows that the machine in question was not such a machine as that used in veneer plants; and that, if appellee did not know the kind of ¡business in which appellant was engaged, it had the machine advertised as a veneer machine.

It is true that the undisputed proof shows that the machine was not such a machine as was required by the appellant. But it was the identical machine that appellant ordered, and, as we have already said, when one purchases a well-known article of manufacture, orders a particular kind of machine, and receives the kind he ordered, there is no warranty that it shall ¡answer the particular purpose intended by the buyer.

Appellant next contends that the court erred in refusing to give its requested instruction number six. That instruction, in effect, told the jury that, if appellant had no opportunity to inspect the machine, he had a right to rely upon'the representations of the plaintiff as to the ase for which the machine was intended. And that if they found, through advertising matter or otherwise, that appelleq, had represented to the appellant that the machine was suitable, when in truth and in fact it was not, the appellant had a right to reject it and rescind the contract, provided they further found that the appellant did not 'know that the machine was not suitable for use 'in a veneer mill, and relied upon the representations of the plaintiff that it was suitable.

There was no contention on the part of appellant that he had any representations from the appellee in any way except the advertisements; and instruction number 6 permitted appellant to recover if he relied on the advertisements, although he ordered a known, described and definite article and received the kind of a machine he ordered. The court did instruct the .jury as follows:

‘ If you believe from the evidence that the machine in controversy, shipped to defendant by plaintiff, was of the described kind and condition, and equipped as agreed upon by the plaintiff and defendant, your verdict will be for the plaintiff in the sum of $104, with interest thereon at the rate of 6 per cent, per annum from April 2, 1927, to this date.”

This instruction was given by the court upon its own motion, and was numbered one.

It will be seen that, before they could find for the plaintiff, the machine must be of the described kind and condition, and accepted as agreed upon by the plaintiff.

The court also of its own motion gave instruction number 2, which is as follows:

“If you find from the evidence that the said machine was not of the described kind and condition, and equipped as agreed upon in the contract between plaintiff and defendant, you will find for the defendant upon his counterclaim in the sum of $96, with'interest thereon from April 5,1927, to this date, at the rate of 6 per cent, per annum. ’ ’

It appears to us that the instructions are so plain that they oould not have been misunderstood by the jury, and they were in harmony with the principles of law governing cases of this kind, and were all on that particular question that either party was entitled to.

Appellant also complains that instructions‘numbers 2, 3 and 4, requested by him, should have been given; that they are upon the theory of an implied warranty. -He contends, however, that there is an express warranty that the machine is reasonably fit for the use intended. There is no warranty, either express or implied, as to the fitness of an article when the buyer indicates a known and described article, and purchases it. There is, of course, a warranty that it is the article that he purchased, but there is no warranty, either express or implied, that it is fit for the purpose for which the buyer intends to use it. If one should purchase a typewriter, as said above, he would not be required to take it, unless, of course, it was the kind of a typewriter he ordered. But if the seller shipped him the kind ordered, it would be wholly immaterial whether it was fit for the purchaser’s use or not.

The appellant says that the court evidently relied on the case of Western Cabinet & Fix. Mfg. Co. v. Davis, 121 Ark. 370, 181 S. W. 273, but insists that the court there said that the designation “’Western 30 iceless” fountain was not such a designation as would make it a known and definite article of commerce, and that that case supports the contention of appellant here. But the article mentioned in the Davis case was a soda fountain, and the court said it was a soda fountain or nothing. It was stated by the court that it was either adapted to that use or it was worthless, and that the use which appellee proposed to make of the fountain was the only use to which any one could put it, and that, for that- reason, the term “Western 30 iceless” fountain did not designate a known, defined and definite article of commerce, the employment of which evidenced a meeting of the minds of the parties upon the thing boug’ht and sold, and excluded the implication of a warranty. The court further said: “But here these parties were contracting for a fountain to be used in furnishing -cold -carbonated drinks, and as an incident thereto to preserve the flavors, fruits, and 'condiments used in that connection, and the manufacturer knew, of course, the uses to which it was to be put, and the jury was justified in finding that there was an implied warranty.”

But the court also said in'that -opinion: “But no such warranty arises out of a contract to make or supply a specific, described, or definite article, although the manufacturer or dealer knows that the vendee buys it to accomplish a specific purpose, because the essence of this contract is the furnishing of the specific article, and not the accomplishment of the purpose. In other words, a warranty that a machine, tool, or article sold is fit and suitable to accomplish a particular purpose or to do a specific work may be implied when the manufacturer or dealer knows the purpose or work to !be effected, and the purchase of the machine, tool, or article is in reality an employment of the vendor to -do the work by making or furnishing a machine, tool, or article to effect it.”

The ieeless fountain, according to the proof in the Davis case, was a brine system for keeping the soda fountain cool, and it was admitted that it was an experiment; that the fountain had not done what the seller expected it to do, and that, in saying it' was a usable fountain, he meant that a person could go ahead and use it by putting ice in the drinks if they were not drawn cool enough. It was also admitted in that case that the company which manufactured the fountain had only been engaged for seven or eight months, and that the fountain was not in general use. It is also shown that they had ceased to manufacture the fountain.

We think that the case not only may be distinguished from the case at bar, but the principles announced in that case justify the giving of the instructions by the court in the instant case. That was a-sale by the manufacturer of a soda fountain. It was not a known and described article of commerce; it was not in general use; was manufactured as an experiment, and discovered, after it was manufactured, that it was unfit for the purpose for which it was manufactured. In the instant case the machine was not manufactured by the seller, but was advertised and sold as a second-hand machine, and was a known and described article of commerce.

Appellant calls attention to a number of other decisions of this court, and quotes from the case of Curtis & Co. v. Williams, 48 Ark. 325, 3 S. W. 517, as follows:

“Proof of the express warranty by the defendant of the quality of his machinery was not essential to a recovery. Ordinarily, upon the sale of 'chattels, the law implies no warranty of quality, but there are exceptions to the rule as well established as the rule itself. One of these exceptions is where the manufacturer undertakes to sell goods manufactured by himself to be used for a particular purpose, and the vendee has not had an opportunity to inspect the goods. In that case the vendee necessarily trusts to the judgment and skill of the manufacturer, and it" is an implied term in the contract that he shall furnish an article reasonably fit for the purpose for which it is intended.”

One difference between the case in the 48th Ark. and the instant case is that there a manufacturer undertakes to supply goods manufactured by himself, to be used for a particular 'business, and the purchaser has no opportunity to inspect the goods. Here the seller was not the .manufacturer; it was not made or sold, so far as the seller was concerned, for any specific purpose. But here a particular defined article was ordered by the purchaser and shipped by the seller.

Attention is called to the case of S. F. Bowser & Co. v. Kilgore, 100 Ark. 17, 139 S. W. 541. The court in that case said:

“Where there is a contract for the sale of an article which is not at the time in existence or ascertained, or where there is a sale by sample, the agreement that such article shall be of a certain description or quality is not merely a warranty, but it is a condition upon the performance of which depends the completion of the contract of sale, and the sale does not become absolute until the article has been inspected and found to conform to the description of kind or quality.”

* In the first place, this is not a case where an article was not at the time in existence; it was not only in existence, but it was held by the seller for sale as used or second-hand machinery, and it was not a sale by sample. We therefore think the above case is not authority for the contention made by the appellant in this case.

Then attention is called by appellant to 24 R. C. L. 164, and it is urged that the text supports the contention of appellant here. The text quoted is to the effect that there may be warranty without any technical set of words, and that it may be inferred upon the affirmation of a fact which induces the purchase and on which the buyer relies, and on which the seller intended that he should do so. But, immediately following the part quoted by appellant, is the following: ‘ ‘But it has 'been said that the words -used must be tantamount to a warranty, and not dubious or equivocal.”

Again it is said: “Where a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” Williston on Sales, 2d ed. 229.

"There would be no reason for the seller to be bound by an implied warranty when the buyer described particularly the kind of article it wanted to purchase and the manufacturer sent that particular article. It might not be suitable for the use intended by the purchaser, but the seller would certainly have a right to assume that, when the purchaser described the article, called for a particular kind, that was the kind desired. * * * Even though inspection would not reveal the defect in the goods, it is possible for the buyer to select them, relying upon his own judgment, and, if he does this, the seller, at least in the absence of guilty knowledge, will not be liable on an implied warranty.

"The rule excluding implication of warranties in sales of known, described and definite articles is simply an application of the general principle stated in both statutes, that reliance on the seller’s skill and judgment is a prerequisite to the imposition of an obligation upon him.” Crow v. Fones Bros. Hdw. Co., 176 Ark. 993, 4 S. W. (2d) 904.

The case was submitted to the jury on proper instructions, and there was evidence sufficient to support the verdict, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Bank of Mulberry v. Hawkins.
    Opinion delivered November 26, 1928.

      Starbird & Starbird, for appellant.

      J. B. Perryniore and O. D. Thompson, for appellee.
   McHaney, J.

Appellant was the holder of a mortgage on certain lots in Mulberry, Arkansas, to secure a note of $10,000 executed to it by S. B. Hawkins. Appellee and his brothers occupied the building on said premises, and operated a grocery store and grist mill therein. Appellee later retired from the firm of Hawkins Brothers, and the building was later rented to others, but the personal property involved in this action was permitted to remain in the building. The note for which said mortgage was given not being paid at maturity, appellant foreclosed same in the chancery court, and purchased the property covered by the mortgage. Appellee was made a party defendant in this action, for the reason, as alleged in the complaint, that he was a tenant of the property subject to the mortgage.

Thereafter appellee instituted this action of replevin to recover the personal property in the building, consisting of counters, grist mill, electric motor, corn sheller, etc. The mill and motor were fastened to the floor, or set on concrete foundations, but the testimony tended to show that they were susceptible of being removed without injury to the re'alty.

The action was instituted before a justice of the peace, who dismissed same on motion oif this appellant, for the reason that, in the judgment of the justice of the peace, he had no jurisdiction, because the action involved the title to real property.

On a trial in the circuit court appellee and his father, S. B. Hawkins, both testified that the property involved belonged to the appellee, and that there was no intention on their part of it 'becoming fixtures when it was installed in the building. The testimony further showed that S. B. Hawkins had been renting the property with this personal property in it, and collecting the rents as though he owned all of it. The appellee testified that he permitted his father to collect the rents with the machinery and equipment in the building’, but did not intend to pass title to the property to him. The court submitted the matter to the jury under an instruction to the effect that, if they found that the property replevied was not permanently attached to the land, but was acquired and placed in the building by the appellee with the intent to use same for his own use and benefit, then they should find for the appellee, but if the jury found that the property was permanently attached to the land and could not be removed without injury to the freehold, it became real estate, and their verdict should be for the appellant. The jury returned a verdict for the appellee, hence this appeal.

It is the general rule that the intention of the party in placing the property in the building, that is, whether it shall remain personal property or ‘become permanent fixtures, will govern. In the recent case of Continental Gin Co. v. Clement, 176 Ark. 864, 4 S. W. (2d) 901, this court said:

"The principles of law governing this case have been many times discussed by this court, and are well settled. And it has been repeatedly held by this court that, as between the vendor and purchaser of articles, the intention of the parties is the real test” ('Citing cases).

See also Ark. Cold Storage Co. v. Fulbright, 171 Ark. 552, 285 S. W. 12. In this case it was said: "The case of Choate v. Kimball, 56 Ark. 55, 19 S. W. 108, is a leading one in this court, and in that case we laid down, as the principal tests of removability, the intention of the party making the annexation and his situation and relation to the owner of the soil — whether the annexation was intended to be made as a permanent accession to the freehold or merely for the benefit of the party making it.”

Here, when the property was put in the building, it was put in as trade fixtures, and the general rule as to the removal of trade fixtures is more favorable to the right of removal where the relation of landlord and tenant exists than in regard to any other relationship. It was so held in the last cited case. The relationship existing between appellee and his father at the time of the installation of this property in the building was that of landlord and tenant, and the property was permitted to remain there in the building by virtue of an arrangement between appellee and his father for the use of such tenants as might occupy the building, the father to collect the rent for the building, but never acquiring any title in said property.

It is urged that appellee had a reasonable time in which to remove the property from the building after he ceased to be a tenant. This would be true ordinarily, but the landlord in this case is not claiming the right to hold the property, but only his purchaser ’at the foreclosure sale. We find no error, and the judgment is affirmed.


text:
    Bush v. Echols.
    Opinion delivered November 26, 1928.

      Jonas F. Dyson, for appellant.

      Ross Mathis, for appellee.
   McHaney, J.

Appellees brought this action against the mayor, recorder and aldermen of the town of Cotton Plant, Arkansas, and against the State Board of Municipal Corporations, to have declared void all proceedings taken by said town and the State Board of Municipal Corporations in raising the town of Cotton Plant from an incorporated town to a' city of the second class, and to enjoin the council from exercising any of the powers conferred upon cities of the second class, including the imposition of a tax upon automobiles, the issuance of bonds under Amendment No. 16 of the Constitution, and the carrying into effect of two ordinances providing for the issuance of sewer and waterworks bonds in the sums of $40,000 and $60,000, respectively.

It was alleged in the complaint that, in order to accomplish these purposes, the mayor and council procured a petition signed by ten qualified electors of said town, praying that a census thereof be taken under §§ 7662 and 7663, C. & M. Digest; that said petition was presented to the council on the 7th day of February, 1928, and that it immediately passed a resolution directing the taking’ of said census, and directing the town marshal to do so as an enumerator; that said marshal was inter' ested in the result of such enumeration, and that he proceeded to take said census and returned his enumeration to the mayor on February 22, 1928, who immediately transmitted to the Board of Municipal Corporations at Little Rock a purported resolution of the town council, praying that it be raised to a city of the second class.

It was further alleged that, if there were any such resolutions as above mentioned passed by the town council, no notice thereof was given as provided by law, no publication thereof, and that the plaintiffs had no knowledge that a census had been returned by the enumerator, and that same was not left on file in the office of the mayor for thirty days, as provided by § 7663, C. & M. Digest; that in taking said census the names of at least 200 persons were included on the list of inhabitants of said town who were not then and are not now inhabitants thereof; that 50 schoolchildren, living in rural territory or in other towns, were included in the list; that 10 persons who were employed by the Federal government, and were only temporarily in the town in the performance of their duties in building a levee on White River, were included, as also 100 persons who do not live in the town, but were there as refugees because of flood conditions; that the names of 10 persons living in rural territory near Cotton Plant were included in the list, and that the whole list, including those wrongfully enumerated, showed a population of 2,011 inhabitants in said town, but that, if the names of those so wrongfully included were stricken from the list, the population would be less than 1,800 persons. It is further alleged that the names of said persons were fraudulently placed in the returns for the purpose of inducing the Board of Municipal Corporations to believe that said town had a population of more than 2,000 inhabitants, when in fact it did not have same, and for the further purpose of enabling the town council to demand illegal exactions in the form of taxes from these plaintiffs and other property owners of said town, and particularly for the purpose of enabling the town council to issue bonds for public improvements, against the will of the majority of property owners of said town, and upon a vote of persons in said town who own no property. The complaint contained further allegations that fraud was practiced on the Board of Municipal Corporations, and that it was thus induced to believe that the city had the required population, when, as a matter of fact, it is and can be only an incorporated town. Farther allegations are contained in the complaint regarding proposed bond issues, the passage of ordinances for the building of sewers and waterworks, and the attempt on the part of the town to operate as a city of the second class.

■ We will not attempt to set out all the allegations of this complaint. Appellant thereupon filed a motion to dismiss the complaint, which the court treated as a demurrer, and overruled same, the order being as follows:

“Being sufficiently advised, the motion of the defendants is overruled in point of law, to which action of the court the defendants except, and pray that their exceptions he noted of record. The defendants standing on their motion to dismiss, and refusing to plead further, it is by the court considered, ordered, adjudged and decreed that the defendants he enjoined from acting in excess of their authority as officers of an incorporated town, and particularly from issuing any bonds or creating any obligations that an incorporated town has no authority or power to issue or create; and the action of the said defendants and the board of municipal corporations in declaring said town a city of the second class is canceled and vacated.”

If the chancery court had jurisdiction, certainly this complaint stated a good cause of action, unless appellees were precluded from maintaining it after the lapse of thirty days from the filing of said enumeration with the mayor. No objection was raised to the jurisdiction in the motion to dismiss, but only that it involved a collateral attack on the proceedings, and could not he maintained after said thirty days had elapsed. This contention is made under § 7663, C. & M. Digest, which is as follows :•

“Before said enumerators shall enter upon their duties they shall make and subscribe to an oath to well and faithfully perform their duties, and their return shall be taken as true. Provided, however, the returns so made by the census enumerators shall be filed in the office of the mayor, and shall be subject to examination of the public for thirty days, and any correction thereof may be made, if proper proof be made before the board of aldermen to their satisfaction, authorizing the correction sought to be made. Said enumerators shall be entitled to and receive two and one-half cents per name for all names found to be authentic by the board of aider-men, to be paid by the town or city.”

It will be noticed that the 30-day provision of this statute relates to the time in which interested persons ■may have the enumeration corrected by application and proof satisfactory to the board of aldermen. One of the allegations in the complaint was that the list was not on file in the mayor’s office for 30 days, and was never properly filed there for the inspection of the public, and appellees prayed an order of the court requiring appellants to furnish same to them, to be examined and copied. This procedure was jurisdictional. The mayor and board of aldermen had no authority, under the statute, to take any further steps looking to the raising of the status of the town to a city of the second class until said enumeration list had been filed in the office of the mayor and kept there for the inspection of any interested person for the full period of 30 days. The census taken showed a population of 2,044, but the complaint charged that more than 200 of these names were fraudulently included in the census. If this fact is true, and it must be so treated, as it is not denied, and is admitted on demurrer, then, for two reasons, the State Board of Municipal Corporations had no jurisdiction. First, the census list must remain on file in the mayor’s office for 30 days before action is taken, and second'^ the town did not have a population exceeding 2,000 inhabitants, as provided by § 7451, C. & M. Digest. If these allegations were not true, they should have been denied by an answer and the plaintiffs put to 'their proof.

But it is said that the exhibits attached to the motion to dismiss showed on their face that all proceedings were regular, including the filing of the census list with the mayor and its remaining on file in his office for 30 days. This is shown by the certificate of the mayor attached to the papers filed with the State Board, but the court was not bound to accept this certificate as conclusive of the fact, and it left the. allegation of fraud in the census list undenied. According to the complaint, the whole procedure of the town officials was cloaked with secrecy, no publicity given, no notice, either actual or constructive, and honeycombed with fraud. The proceedings had and done were therefore void.

Did the chancery court have the power to grant the relief prayed?

Section 13 of art. 16 of the Constitution provides: Any citizen of any county, city or town may institute suit in behalf of himself, and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”

This section is authority for this procedure. Appellees are attempting by this action to protect the inhabitants of Cotton Plant from illegal exactions in taxation. The case of Waldrop v. K. C. S. Ry. Co., 131 Ark. 453, 199 S. W. 369, L. R. A. 1918B, 1081, is authority for this action. There the county court had made a void order incorporating the town of Ogden. The railroad company attacked the legality of the organization of the town several years later, to avoid the payment of an illegal exaction of taxes. This court sustained the action of the chancery court in enjoining the collection of such taxes, on the ground that the order incorporating the town was void, and open to the attack made.

We are of the opinion that the court had jurisdiction, and properly enjoined the town officials, under the situation existing and as matters were submitted to it. If, however, the town has the required population, and will take all necessary steps looking to this end, it may yet be raised to a city of the second class.

Affirmed.


author: Hart, C. J.,

text:
    McWilliams v. Kinney.
    Opinion delivered December 3, 1928.

      Hays, Priddy & Rorex, for appellee.

      Jesse Reynolds and Paul McKeimon, for appellant.
   Hart, C. J.,

(after stating the facts). The first assignment of error is that the court erred in giving instruction No. 3 at the request of the plaintiff, which reads as follows:

‘ ‘Gentlemen of the jury, if you find from the evidence that the defendant, McWilliams, at and during the time plaintiff and his wife were living together, began to pay attention to the plaintiff’s wife, and began visiting and courting her during the absence of the plaintiff, and by such methods, or any other methods, wrongfully stole away and alienated her affections from her husband, until she finally deserted the plaintiff, then the plaintiff is entitled to recover such damages as you believe from the evidence he has sustained under these instructions.”

It is insisted that the use of the phrase, “or any other methods, wrongfully stole away and alienated her affections from her husband, ’ ’ submitted to the jury allegations not contained in the complaint. We do not agree with counsel in this contention. The plaintiff alleges that the defendant became a visitor in the home of the plaintiff, and wrongfully began to pay court to his wife; that he would frequently take her out riding in a car when the plaintiff was down in the coal mines at work; that he met her clandestinely many times; that he bought her many costly presents, and that, under the guise of friendship, he alienated her affections until she became dissatisfied with her condition and station'in .life; that she became cold towards the plaintiff, and finally neglected and abandoned him, because of the wrongful conduct of the defendant; that defendant, as a part of his plan, procured her to move to Clarksville for the pretended purpose of sending their son to school, but really for the purpose of getting the plaintiff’s wife more completely under his control; that the defendant, in carrying out his plan to alienate the affections of the plaintiff’s wife, procured her to obtain a divorce, and paid all the expenses thereof. From these allegations of the complaint it will be seen that the object of the court in using the language now complained of was to submit to the jury any of the grounds of the complaint alleged which were sustained by the proof. Only a general objection was made to the instruction by the defendant, and, if he thought the meaning now contended for might have misled the jury, he should have made a specific objection to the instruction, and doubtless the court would have changed the verbiage in order to overcome his objection.

It is next insisted that the court erred in refusing to give instruction No. 2, requested by the defendant, which reads as follows:

“You are instructed that, before the plaintiff can recover, he must prove each of the material allegations in his complaint by a preponderance of the testimony.”

The court did not err in refusing to give this instruction. The plaintiff was not required to prove each of the material allegations in the complaint. He was only required to prove one or more of them. The gist of the action was that the defendant had alienated his wife’s affections.

The next assignment of error is that the evidence is not legally sufficient to warrant the verdict. We cannot agree with counsel for the defendant in this contention. In testing the legal sufficiency of the evidence to support the verdict, we must view it in the light most favorable to the plaintiff. When that is done, the jury was warranted in finding that the defendant broke up the home of the plaintiff and induced his wife to obtain a divorce from him, and to marry the defendant. The jury might have found from the attendant circumstances that he was the procuring cause of the separation of the plaintiff and his wife. It will be remembered that they were frequently seen riding together during the absence of the plaintiff. Two of the witnesses testified that they saw the wife of the plaintiff riding with the defendant in the summer time, with the front curtains of the automobile up, and that she had on a man’s hat and overalls. One witness further testified that, when they would return to the home of the plaintiff, the defendant would take the curtains down and drive off by himself. Then, too, the fact that the plaintiff went to the town of 'Clarksville to live, and soon after brought suit for divorce against her husband, is a fact of some importance. It is worth while to note that she married the defendant shortly after she secured the divorce. These facts, if believed by the jury, warranted it in finding that the defendant had alienated the affections of the wife of the plaintiff, and caused her to abandon him and to secure a divorce from him. Hodge v. Brook, 153 Ark. 222, 240 S. W. 2; and Rainwater v. Emberton, 158 Ark. 573, 250 S. W. 866.

It is generally held that a spouse against whom a divorce has been granted may maintain an action for alienation of affections occurring prior to the divorce, since the decree is not res judicata with respect to the plaintiff’s cause of action, and does not operate as an estoppel by judgment. Case-note to 20 A. L. R. 943; Luke v. Hill, 137 Ga. 159, 73 S. E. 345, 38 L. R. A. (N. S.) 559; Hostetter v. Green, 159 Ky. 611, 167 S. W. 919, L. R. A. 1915C, 870; Durham v. Durham, 125 Mich. 109, 83 N. W. 1005; DeFord v. Johnson, 251 Mo. 244, 158 S. W. 29, 46 L. R. A. (N. S.) 1083; Prettyman v. Williamson, 1 Pen. (Del.) 224, 39 Atl. 731; Knickerbocker v. Worthing, 138 Mich. 224, 101 N. W. 540, and case-note to 6 Ann. Cas. 663.

Finally, it is insisted that the judgment should be reversed because the verdict is excessive. This was not made a ground in the motion for a new trial, and for that reason we cannot consider this alleged assignment of error. Glasscock v. Rossgrant, 55 Ark. 376, 18 S. W. 379; Kansas City Sou. Ry. Co. v. Short, 75 Ark. 345, 87 S. W. 646; Battle v. Draper, 149 Ark. 55, 231 S. W. 869.

Therefore the judgment will be affirmed,


text:
    Security Trust Company of Freeport v. Martin.
    Opinion delivered December 3, 1928.

      Evans & Evans, for appellant.

      Dean, Moore & Brasil, for appellee.
   Hart, C. J.,

(after stating the facts). The decree of the chancellor was wrong in so far as the rights of the Security Trust Company of Freeport are concerned.

The theory upon "which Martin broug’ht this suit is that he released his vendor’s lien in order that Hendricks might obtain a loan and pay him the balance of the purchase price on the land. The parties 'did not intend that the release would be effective until Martin received the money in satisfaction of the amount of the lien. In making this contention, they rely upon the general rule that, where a mortgage or other lien on real estate has been released or satisfied through mistake,,it may be restored in equity and given its original priority as a lien.. 41 C. J. 586.

It is equally well settled that such relief cannot be obtained to the injury of the intervening rights of an innocent third party, who relied upon the release, unless he is chargeable with notice of the mistake or will not be prejudiced by the reinstatement. 41 C. J. 586 and 587, and cases cited in notes 42 and 43; Sheldon v. Holmes, 58 Mich. 138, 24 N. W. 795; Carbon Hill v. Marks, 204 Ala. 622, 86 So. 903; Waltham Cooperative Bank v. Barry, 231 Mass. 270, 121 N. E. 71; and Purdy v. Huntington, 42 N. Y. 334, 1 Am. Rep. 532.

In the case at bar the -Security Trust Company of Freeport furnished to the F. B. Collins Investment Company of Oklahoma City, Oklahoma, which was the agent of J. S. Hendricks, the money with which to discharge the lien of George C. Martin. The money was furnished by it in good faith, and it did not have any notice of facts which would lead to knowledge of the insolvency of the F. B. Collins Investment Company of Oklahoma City, Oklahoma, and did not act in collusion with it in failing to pay the money to Martin. Having furnished the money in good faith, in reliance upon the release or discharge of the lien indebtedness by Martin against the land, its rights could not be affected by the failure of the broker or agent of Hendricks to turn it over to Martin. To' so hold would affect injuriously the vested rights of the Security Trust Company of Freeport.

Such is the effect of our decision upon an analogous state of facts in the ease of Maccabees, Incorporated, v. Pierson, 177 Ark. 243, 6 S. W. (2d) 305.

It is next sought to uphold the decree on the ground that the F. B. Collins Investment Company was a foreign corporation which was not authorized to do business in the State of Arkansas. This contention is not sound. The application for the loan was sent by Hendricks from his-residence in Conway County, Arkansas, to the F. B. Collins Investment Company, at its office at Oklahoma City, Oklahoma. The contract was made there1, and it cannot be said in any sense that the foreign corporation was doing business in this State by entering into a contract with a resident thereof in the State of Oklahoma. Davis & Worrell v. General Motors Acceptance Corporation, 153 Ark. 623, 241 S. W. 44; Commercial Credit Co. v. Blanks Motor Co., 174 Ark. 274, 294 S. W. 999; Equitable Credit Co. v. Rogers, 175 Ark. 205, 299 S. W. 747; Linograph Co. v. Logan, 175 Ark. 194, 299 S. W. 609; Smith v. Brokaw, 174 Ark. 609, 297 S. W. 1031; and International Textbook Co. v. Pigg, 217 U. S. 91, 30 S. Ct. 481.

It follows that the court erred in decreeing the restoration of the lien of George C. Martin, in so far as the rights of the Security Trust 'Company is concerned; and for that error the decree will be reversed, and the case will be remanded with directions to render .judgment in its favor for the notes sued on by it and for a foreclosure of its mortgage as prayed for in its cross-complaint, and for such other proceedings according to the principles of equity as may be necessary to enforce its rights, which are not inconsistent with this opinion. It is so ordered.


author: Hart, C. J., Humphreys, J.,

text:
    Arkansas Natural Gas Company v. Oliver.
    Opinion delivered December 3, 1928.

      Wynne & Miller, for appellant.

      Philip McNemer, for appellee.
   Hart, C. J.,

(after stating the facts). It is earnestly insisted by counsel for appellant that the evidence is not legally sufficient to warrant the verdict, and that, under the undisputed facts, the judgment should be reversed, and the cause of action dismissed. In this contention we think counsel for appellant are correct.

In the first place, there can be no recovery unless the gas company is shown" to have been negligent. Torrans v. Texarkana Gas & Electric Co., 88 Ark. 510, 115 S. W. 389.

This court has’held that a public service corporation furnishing gas to consumers is required to use ordinary care in constructing and maintaining its gas pipes in such condition as to prevent the escape of gas, whereby a person or his property might be injured; and if it fails to use such care, and, by reason of such failure, loss or injury occurs, it is liable in damages. With respect to the responsibility for damages caused by the escape of gas, our own court, in common with various others of last resort, determines ¡the common law liability in such a case upon the principles of negligence appli: cable to the care and maintenance required of the handling of a dangerous substance or instrumentality. In such oases, ordinary care is commensurate with the danger to be avoided. Pine Bluff Water & Light Co. v. Schneider, 62 Ark. 109, 34 S. W. 547, 33 L. R. A. 366; Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 1199, 32 L. R. A. (N. S.) 825; and Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885; and case-note in 25 A. L. R. 262.

In an effort to sustain the judgment, counsel for appellees seek to apply the principles announced in McWilliams v. Kentucky Heating Co., 166 Ky. 26, 179 S. W. 24, L. R. A. 1916A, p. 1224. In that case the gas mains were in the public road near the surface, and at a place where it was expected and intended that vehicles should go. At the time of the accident the county officers were engaged in the reconstruction or repair of the macadam road near the dirt road, and in its work had ¡beenusing a steam roller. In the course of the work the person injured was directed by the county officer in charge to run the roller 'along the dirt road next to the macadam road to a point where it would be needed for use on the macadam road. While doing this, the spike on one of the wheels punched holes in an iron pipe that had been placed in the dirt road, and the-escaping gas, coming in contact with the fire in the engine, caused an explosion and the envelopment of the engine in flames. The dirt road was as much a part of the public road as the macadam road. The gas company was held to ¡be under the duty to exercise ordinary care to keep and maintain its mains in such condition as that the public road would be in a reasonably safe condition, considering the uses and travel to which it 'might reasonably be anticipated it would be subjected at any time, and to take notice of the use and travel over the road, and exercise such care as might, be necessary to maintain the road in a reasonably safe condition to meet such requirement. The court said that the duty imposed upon the gas company was to exercise ordinary care in the maintenance of its gas mains, and imposed upon it the duty of exercising ordinary care at all times, while the mains were in the public road, to guard against injury from any use of the road in view of the modern methods of use that it might be subject to. In the application of this rule it was the duty of the gas company to anticipate that it would be necessary to repair the macadam road, and that a steam roller might be driven over the dirt road alongside of the macadam road for that purpose. Hence it could not be said as a matter of law that the gas company, in the exercise of ordinary care, could not have foreseen this use of the road and was not required to anticipate that this accident might have occurred. In that case, however, the court recognized the law to be that the gas company in maintaining its gas main was not required to provide against extraordinary or unusual conditions, or to anticipate or guard against accidents arising from extraordinary or unusual causes which could not reasonably have been anticipated to exist at the time the injury complained of occurred. The county had a right to use all parts of the road and to operate the steam roller over any part of it that was necessary. Hence it was a question for the jury whether or not the gas company was negligent in not anticipating that the steam roller would have to be driven over the dirt road for the purpose of repairing the macadam road, and for that reason the gas company should have placed its main deep enough under the ground to prevent the steam roller from punching holes in them and thereby causing loss or injury.

In the case at bar the facts are essentially different. The gas main was laid under the ground on the land of a private person, under an easement obtained for that purpose. There was no leak in the gas main at the point where the accident occurred, and the pipe was laid a sufficient depth under the ground to prevent any injury from, any ordinary use that might have ¡been made by the owner of the ground or any one else. The undisputed facts show that the pipe was laid and maintained by appellant in a perfectly safe condition for any use that the gas company might have anticipated would be made of it in the future-, and that this condition had continued for 17 years. It was not required to make a continual inspection of its pipe lines in order to anticipate any extraordinary or unusual excavations which might cause injury to those making them. It was not required to anticipate that the road might be changed and a new-road laid out, and a borrowpit constructed for the purpose of excavating dirt for the purpose of making a dump or roadbed on the new road. If a county or State officer desired to do this, notice should have been given to appellant, in order that it might have the right to test whether or not the public use or’necessity would require it to change its pipe line. It must be remembered that it was under the duty to maintain its pipe line in a safe condition to furnish gas to its customers, and in the exercise of such duty it could not be required to tear up its pipe line for the purpose of securing a borrowpit for a change in the public road, unless the public necessity required such course. In any event it could not be required to' change the location of its pipe lines without notice to do so, and an opportunity to be heard on the question.

The escaping gas and the ensuing explosion which caused the loss was not caused by any failure of appellant to keep the gas mains in safe condition. It was due solely to the act of appellee’s.servants in excavating the dirt in the borrowpit to an unusual depth, of which the gas company had no notice .and -of which it was not required to take notice.

The explosion was not due to the negligence of appellant, but was caused by the acts of appellees in making the excavation under such circumstances as constituted negligence on their part.

Under the undisputed facts, we are of the opinion that the loss complained of was not due to the negligence of appellant, but resulted from the negligence of appellees. Therefore the court should have directed a verdict in favor of appellant as requested !by it. For the error in not doing so the judgment will be reversed, and, inasmuch as the cause of action seems to have been fully developed, it will be dismissed here. It is so ordered.

Humphreys, J.,

(dissenting). Appellant was handling a dangerous commodity, and the law imposed a duty upon it to exercise ordinary care to prevent or avoid injury to all persons and their property engaged in repairing or reconstructing the road within the boundaries of the State highway, as designated in the condemnation proceeding.

The court sent the case to the jury upon the theory that appellant was liable for damages to the shovel, provided they found from the testimony that it had a pipe line, through which it conveyed gas, within the right-of-way condemned by the county court for a public highway, if it failed to exercise ordinary care to maintain its gas main in a reasonably safe condition for travel, and to take notice of the kind and type of machinery which might ¡be used for the construction of said road and the changes and improvements constantly being made in all classes of road, as well as the machinery used in improving and constructing same. The duty imposed upon appellant by this declaration of law was predicated upon the county court order condemning the land and authorizing the State Highway Department to enter and reconstruct the road within the designated boundaries of the right-of-way. In other words, the court treated the Highway Department and its contractors as being in the lawful possession of the right-of-way, with a superior right to that of appellant to use the surface, or, to state it differently, that appellant’s right to occupy the right-of-way with its pipe line was subservient to the right of the Highway Department to repair and reconstruct the road.

The rule of law announced by the trial court as applicable to the facts in the instant case is supported by the weight of authority, and I do not understand that the majority opinion contravenes the principle of law enunciated, but asserts that the principle was not applicable. The principle or rule announced was applied to the facts in the case of McWilliams v. Kentucky Heating Company, 166 Ky. 26, 179 S. W. 24, L. R. A, 1916A, 1224, The majority opinion differentiates the instant case from the McWilliams case, and concludes with the statement that the facts in the instant case, according to the undisputed testimony, are insufficient to sustain the verdict and judgment. In interpreting the facts in the instant case the majority opinion, I think, ignores the fact that appellant failed to mark its pipe line so that those rightfully near it might know where it was; and that appellant also failed to notify the Highway Department and the appellee herein of the whereabouts of the pipe 'line. It knew where its line was, but its deed to the easement for the pipe line did not designate what part of the forty-acre tract it passed through so that others might know from reading it. According’ to the testimony, it had a line-walker, wlm passed up and down the line often to ascertain its condition, and who must have seen appellee and his employees working near the pipe line with a large steam shovel that dug into the earth deeper than the pipe line had been buried. Not only had the county court condemned the right-of-way and turned it over to the Highway Department, which extended at least ten feet beyond appellant’s pipe line, but the State Engineer had staked off the boundaries of the highway thus condemned. This pipe-line walker must have known that the pipe line was within the right-of-way as stalled off by the State Highway Engineer. There can 'be no question that, had the Highway Department known where the pipe line was and had notified appellant to bury it deeper in the earth, it would have been compelled to do so. This being the case, its right to use the surface was subservient to that of the Highway Department. It could place its pipe deeper in the earth and accomplish the same purpose as where it was. The highway had to use the dirt on the surface to a depth below where the pipe line was buried to fill in the roadbed. I think the burden rested upon appellant to notify the Highway Department and appellee that its line was within the condemned right-of-way for highway purposes, and, after giving the notice, it was incumbent upon it, under the law, to bury the pipe deeper, if necessary. The majority opinion placed the burden of notice upon appellee and the Highway Department, when neither knew where the pipe line was, and when appellant did know its whereabouts, and that it was Within the highway boundary as condemned and staked off. Although the facts are somewhat different in the McWilliams case, yet they are no stronger than the facts in the instant case when viewed most favorably to appellee.

For the reasons given I think the judgment of the circuit court should be affirmed.


author: Smith, J.

text:
    GANNER v. GANNER.
    Opinion delivered December 3, 1928.

      Wallace Bourland and Cravens & Cravens, for appellant.

      Pryor, Miles & Pryor, for appellee.
   Smith, J.

Appellant brought this suit for divorce from appellee, his wife, on the ground of desertion. Appellee filed an answer, denying that she had deserted appellant, but alleged in a cross-complaint that appellant had deserted her, and upon these allegations she prayed a divorce and permanent alimony.

The court dismissed the complaint of appellant for want of equity, and granted the prayer of appellee for a divorce upon the ground of desertion, and ordered appellant to pay appellee $75 per month as alimony, and also a fee for her attorney, and this appeal is from that decree.

The parties were married in January, 1918, and were finally separated in February, 1927, but, prior to the last-named date, they had lived apart for varying intervals. When the parties first began to live apart there was probably no thought on the part of either that a permanent separation would finally result.

Appellant was employed by the American Railway Express Company, and his duties resulted in his frequent transfer from one city to another. After the marriage, the parties lived with appellant’s parents for about three weeks, when they moved to the home of appellee’s parents in Russellville, and lived there until appellant was transferred to Fort 'Smith, where they lived until May, 1919, when appellant was transferred to Newport, where he was stationed for nine months. Appellee did not accompany appellant to Newport, and the testimony is conflicting as to why she did not do so, the testimony on the part of appellant 'being to the effect that appellee’s parents would not permit her to leave their home to go to Newport, while that on the part of appellee was to the effect that she remained in Russellville in accordance with their understanding, as appellant had made no provision for her going to Newport, but, during the time appellant was stationed at Newport, he spent the Saturdays and Sundays in Russellville with appellee.

Appellant was again transferred to Fort Smith, where he bought a home, 'but this was later sold. The testimony is sharply conflicting as to why the home was sold. Appellant’s version of the sale is that the house was sold because appellee did not want to keep house, while appellee says the house was sold because it was thought that boarding would be less expensive.

There was testimony on the part of appellant to the effect that appellee had deserted appellant by refusing to live in Fort Smith, while that on appellee’s behalf is to the effect that appellant grew tired of the bonds of matrimony, and had so advised appellee. There is certain corroboration of the testimony of each of the parties, which we do not set out, as no useful purpose would be served by so doing.

Appellee testified that, about 'Christmas, 1926, appellant asked her if she would not come to- Fort Smith to live, and she said that she certainly would. Appellant spent the Christmas holidays with appellee, and during that time she asked him when he wanted her to go to Fort Smith. Appellant said “In a few days,” and left. A few days later appellant returned, and she renewed her inquiry, and appellant said that he would advise her. Appellant returned to Fort Smith, and appellee wrote him three letters, asking when he wanted her to come, but these letters were not answered. One of the letters was answered, but not this question. Receiving no answer, appellee went to Fort Smith, and appellant said to her, “I certainly think you had your nerve to come.” On this occasion appellant told appellee he was tired of married life, and offered her $500 to get a divorce. He carried her to the depot, gave her $10, and she had never heard directly from him since.

Appellant denied having told appellee that he was tired of married life, and testified that he wanted her to live with him in Fort Smith, but he admits that he did not ask her to do so.

- Without further review of the conflicting testimony, we announce our conclusion to be that the case is similar to that of Rigsby v. Rigsby, 82 Ark. 278, 101 S. W. 727, and is controlled by it.

If the separation of these parties, which at first was probably intended to .be temporary, was not brought about by appellant, it was, at least, assented to by hrm, and he did not thereafter write appellee to return, nor did he in any manner indicate that it would he agreeable for her to do so; on the contrary, the testimony warranted the court in finding — as was fonnd — that appellant repulsed the advances made by appellee in this respect. As this separation had continued for more than a year when this suit was brought, the court was warranted in finding that appellant had willfully deserted appellee for more than one year without reasonable canse, and that she is entitled to- a divorce.

No complaint .is made of the amount of the alimony allowed if appellee is entitled to a decree, and, as we think the finding of the chancellor is not against the preponderance of the evidence, thé decree must he affirmed, and it is so ordered.