text:
    Pine Bluff Heading Company v. Bock.
    Opinion delivered March 17, 1924.
    1. Appeal and error — sufficiency of evidence — question of law. —The legal sufficiency of evidence to support a jury’s finding is a question of law.
    2. Principal and agent — evidence.—An agent may testify as to his agency and the extent of the authority with which he was clothed.
    3. Principal and agent- — delegation of authority. — Evidence held legally insufficient to show authority of an agent to employ a subagent on behalf of his principal.
    4. Principal and agent — delegation of authority. — The mere fact that one was employed to buy heading bolts for his principal did not authorize him to hire other buyers, as an agent cannot delegate his authority.
    5. Principal and agent — special authority. — A contract of employment to buy heading bolts for a fixed price and a commission of $2 per cord, on the agent’s inspection, subject to reinspection by the employer, the buyer to pay loading expenses and sustain loss from culled bolts, held to involve a personal trust and confidence, requiring special -authority in the agent.
    6. Principal and agent — ratification of employment — jury question. — Testimony as to ratification of the employment of a sub-agent held to present a question for the jury.
    7. Principal and agent — authority to employ subagent. — If an agent employing plaintiff to purchase heading -bolts for defendant had authority to employ plaintiff, or if such employment was ratified by defendant, the latter became liable, though plaintiff did not inquire of defendant concerning such agent’s authority.
    8. Principal and agent — dealing with agent. — One dealing with an agent without inquiring of the principal as to his authority does so at his peril.
    9. Principal and agent- — instruction.—In an action for advances and commissions for buying heading bolts for defendant where the employment contract called for inspection by -plaintiff and reinspection by defendant, an instruction requiring proof that defendant inspected and passed the bolts as marketable, to enable plaintiff to recover advances and commissions, was properly refused, since thereunder defendant might avoid liability by failure to perform its duty to inspect and accept those bolts conforming to the contract.
    10. Trial — instruction—necessity of specific objection. — In an action for advances and commissions under contract of employment to purchase heading bolts, an instruction that plaintiff was not authorized to advance his own funds and could not recover any funds advanced unless the -bolts purchased met the requirements of the contract, was not erroneous on the ground that plaintiff’s payment was voluntary, in the absence of a specific objection raising the distinction between the amount due for advances and the amount due if staves which defendant refused had stood inspection.
    11. Principal and agent — recovery of advances. — In an action for advances and commissions for buying heading bolts, plaintiff being entitled to recover the contract price of such bolts as met the requirements of his contract, it was immaterial whether he recovered the amount as advances made or as the sum due him under the contract.
    12. Principal and agent — recovery of expenditures. — One employed to buy heading bolts could recover from his principal sums required to be paid before the seller would make delivery, such expenditures being necessary to execution of the agency and their payment being contemplated.
    Appeal from Monroe Circuit Court; George W. Ciarle, Judge;
    reversed.

      C. F, Greenlee-and E. L. Westbroolee, for appellants.
    1. Appellant’s motion for a directed verdict should have been -sustained, because the allegations of the complaint were in no sense sustained by the plaintiff’s evidence, and there was nothing to go to the jury. 147 Ark. 206;-150 Ark. 423; 103 S. W. 24, 25.
    - 2. Plyler was appellant’s, agent to inspect, take up and pay for timber. He had no authority to employ men to buy timber, and no such authority was provided. 2 C.' J. 573; 140 Ark. 313; 132 Ark. 155; 92 Ark. 315; 94 Ark. 301. ,.
    • 3. Appellant was entitled to an instruction to the effect that funds advanced by one employed as a buyer are advanced at his peril, unless he is specifically authorized to advance such funds, or the employer, ratifies his act or accepts the .property purchased with the funds so advanced. 60 Ark. 9.7. - ■ ■
    4. Bock, under his own evidence, speculated on his employer. 2 C. J. 692.

      Lee & Moore and W. A. Leach, for appellee.

      1. On appeal, the pleading will be considered as amended to conform to the proof. 67 Ark. 426; 149 Ark. 658; 98 Ark. 529; 149 Ark.. 257; 98 Ark. 312; 97 Ark. 576; 106 Ark. 379.
    2. The testimony of Plyler was competent and legally sufficient to establish, not only the fact of his agency, but also the extent of his authority. 31 Cyc. 1651-1652; 159 Ark. 445-; 122 Ark/357; 80 Ark. 228; 55 Ark. 627.
    3. The failure of appellee to inquire as to Plyler’s authority would not preclude him from showing that Plyler did have such authority, nor prevent his recovery. 105 Ark. 511.
    4. Appellant’s requested instruction with reference to funds advanced by one employed as a buyer did not correctly declare the law. ’ If appellee was employed by the appellant to buy heading for its'account, this carried with it the authority to pay for the heading out of-his own funds, even though he had not been directly authorized to make such advances. 31 Cyc.' 1349'; 60 Ark.-97.
   Smith, J.

Appellee, the plaintiff below, lives at Roe, Arkansas, and in 1920 was engaged in operating a gin and sawmill at that place. ' Appellant, a corporation, hereinafter referred to as the compány, is engaged in the • manufacture of heading, with its principal place of business in Pine Bluff, and with a branch plant' at Brinkley, which is operated under the name of the Brinkley Heading Company. • ■ ■

'It is the contention of appellee that in August,' 1920, the appellant, through its agent, Joe Plyler, entered’into a verbal contract with him whereby he was to purchase for the company certain heading bolts] to be by him loaded on cars at Roe, and that he was to'have for this service $2 per cord.- According to appellee, a maximum price of $24 per cord for white oak and $17 per cord for red oak was fixed, and his commission was' to be earned by buying at less than those prices, and was estimated at $2 per cord: He was to buy on his-own inspection, subject to the company’s right of reinspection, and was to sustain the loss of any bolts which were culled or thrown out through failure to meet the requirements of the company, and out of his commission he was also to. pay the expense incurred in loading the holts on cars for shipment.

Appellee alleged that, pursuant to this contract, he purchased bolts which met the specifications of those he was authorized to buy, and paid for them with his own money, but appellant refused to inspect them or to receive a shipment of them when tendered, whereby the bolts spoiled. Appellee sued for his commissions and his advances.

Appellant denied all the allegations of the complaint, but, upon a trial before a jury, there was a verdict in appellee’s favor, and from the judgment pronounced thereon is this appeal.

It is appellee’s insistence that Plyler had authority to employ him, and did employ him, to buy bolts for the company on the terms stated, but that, if this employment was not originally authorized, it was subsequently ratified and became a 'binding contract, and that, under this contract, appellee is entitled to recover his commission and advances.

The court submitted to the jury the question of Plyler’s authority to employ appellee as an agent of the company, and directed the jury to find for the company, unless Plyler’s authority to employ appellee was shown. We therefore assume that the jury accepted as true the testimony, which tended to show that Plyler possessed the authority to employ appellee; but the legal sufficiency of the testimony to support that finding is a question of law for our decision.

Of course, it was competent for Plyler to testify as to his own agency and the extent of the authority with which he was clothed. Arkmo Lbr. Co. v. Cantrell, 159 Ark. 445; Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357.

The only testimony tending to show that Plyler possessed the authority to employ appellee is that of Plyler himself, as the managing officer of the company who employed Plyler, and to whom Plyler made reports of his actions as agent, and to whom he went for instructions, testified categorically that Plyler was authorized only to inspect and pay for holts, and that he knew nothing of the alleged employment of appellee as the company’s agent until after' the bolts had been purchased and the company’s plant had closed down because of the slack demand for staves, and that this information was conveyed to him by appellee himself, who applied to him to take the bolts off his hands, and that he was asked to take these bolts, not as appellee’s principal, but as a purchaser from him.

Plyler’s testimony was to the following effect: He had been employed by the company for about four or five months, and he was paid a wage of $5.50 per day when engaged in the discharge of his duties. On his direct examination as a witness for appellee he was asked: “Q. What business were you engaged in in 1920?” and he answered: “A. Taking up timber for the Brinkley Heading Company.” He was asked, “Q. What were your duties in your employment?” and he answered, “I was supposed to go out and buy all the timber I could ■ get, logs and bolts.” On his direct examination he gave no other testimony tending to show his authority to employ other agents, although he did testify that he employed appellee to buy bolts. On his cross-examination Plyler gave the following testimony: “Q. What was your line of duty? A. To go out and buy all the bolts I could get, bolts and logs. Q. He (Mr. Bounder, the manager) just told you to go ahead and buy everywhere? A. Yes sir. Q. Don’t you know it is a fact, Mr. Plyler, in the first place, that he only authorized you to go out and take up the stuff and pay for it where- it was on the road, and he would send you to a particular place, isn’t that a fact? A. No sir.” The witness was then asked about a communication to the company which he had signed, in which it was recited that he had never at anv time employed appellee to work for the -company, and that he had no authority to do so. The witness aidmitted signing this statement, and said it was the truth, hut he made explanations of this statement, more or less equivocal, and, when asked to open up and explain it, he answered as follows: “A. All right. When I went out down there Mr. Bounder gave me orders to buy this stuff, and I didn’t go into any written contract with Mr. Book, as I told you before, but I did buy the stuff on a verbal contract, told him to put it out. I went to him, and he said no, his brother was buying bolts there, and he wouldn’t buy bolts against his brother. Well, Í went to his brother, Mr. Ed Bock, and the two of us went to him and talked it over with him, and he said it was all right, go ahead and go to work, and he went to work and bought the stuff, had it put out. I don’t know in what way he bought it; that is all I know about it.” He was further interrogated in regard to this statement as follows: “Q. That is your explanation, is it? A. Yes sir. Q. That is the explanation of why you say now that you employed him, and at the time you signed this contract, which you say is the truth, that you didn’t employ him, that is the explanation you give to the jury, is it? A. Yes sir. Q. That is the best’you can do? A. Yes sir. Q. That is the explanation of why you say now to go out and act as agent of the Brinkley Heading Company?' A. I didn’t hire Mr. Bock, as I told you, I simply went there and got him to buy bolts. Q. Wasn’t that emploving him? A'. He was to get out these bolts and load them on the car at so much a cord. Q. What else did you have to do besides going out any employing people to get out bolts at so much a cord and the Brinkley Heading' Company paying for them? A. ’ That is what I was hired to do. Q. Why did you say here that you had no authority to'do that, unless vóu had done that by contract? A. Well, I did contract with Mr. Bounder to do these things. Q.' What kind of a' contract? A. ' Yerbal contract; he hired me to go out arid do this. Q. Didn’t he employ you-to go out and take up stuff on the road and pay for it? A. And buy stuff. Q. Buy stuff that he would send you out to buy? A. No sir, when I bought Mr. Bock’s logs he didn’t know there was a log at Roe.” Witness then stated the terms of his contract with appellee, and that he reported what he had done to Mr. Rounder, who approved what he had done. Witness was then asked: “Q. You heard my statement of the case, that your authority extended to go out and get stuff that was on the road, and report that, and scale it up and pay for it, but you had no authority any further than that to employ people to go out and get out stuff on a commission?” and answered: “A. You get the stuff as can be gotten out, before it can be loaded and shipped in it has to be taken up.” He was then asked: “Q. You answer my question. Of course, it had to be gotten out. In one place it was already out, and the other it wasn’t out, that is some difference, isn’t it?” and he answered, “A. Very little.”

We do not think this testimony, fairly interpreted, is sufficient to support the finding that Plyler was authorized to employ other agents to buy bolts, and we think he exercised an authority which he did not possess. The mere fact that he was an admitted agent of the company did not confer this authority, for it is a well-settled principle of the law of agency that the agent cannot delegate his authority. Of course, the function of an agent might be to employ other agents, but that function does, not appear here. Plyler does not claim to have appointed other agents, nor does he testify that he was expressly clothed with this power, and he shows nothing in the character of his own employment which would make the employment of a subagent essential to discharge his own duties. The very terms of the alleged agency show that the elements of personal trust and confidence are involved here, as the sum sued for approximates a thousand dollars. DeCamp v. Graupner, 157 Ark. 578.

We are of the opinion, however, that, while it does not appear that Plyler had the authority to employ appellee as an agent, Plyler’s testimony does make a question for the jury whether his unauthorized act was ratifiéd by the company. He testified that he reported to Bounder that he had. employed appellee, and that Bounder assented to what he had done. If this testipany is true, appellee became an agent, by ratifioation of Plyler’s unauthorized act in employing him, and appellee is entitled to have this question submitted to the jury. As we have said, however, Bounder flatly denied this testimony, so that issue cannot be treated as undisputed. It appears that the case was not submitted to the jury on- the question of ratification, but on the question of Plyler’s original authority to appoint an agent, and, as the testimony does not support the jury’s finding that he had such authority, the judgment must be reversed.

Inasmuch as the jury may find that there was a ratification of appellee’s agency, we proceed to consider the other questions raised on this appeal.

Appellant asked an instruction which, -had it been given, would, in effect, have told the jury that it was appellee’s duty to inquire of the company whether Plyler had the authority to employ him. This instruction was properly refused. It is true that, in the absence of such inquiry about Plyler’s authority or confirmation thereof by the company, appellee acted at his peril and took his chances on holding the company liable; but if Plyler, in fact, had that authority, or if his unauthorized act was ratified by the company, it'became liable, notwithstanding appellee’s failure to inquire. United States Bedding Co. v. Andre, 105 Ark. 111.

It is insisted that appellee should not recover because the bolts purchased by him did not meet the specifications for bolts which he was authorized to buy, and the testimony on the part of appellant is to the effect that the bolts tendered it by appellee did not conform to these specifications. But this testimony is far from being-undisputed. On the contrary, the testimony in appellee’s behalf is that the bolts tendered conformed to the specifications. This issue of fact was submitted, in an instruction in which the jury was told that, before there could be a verdict for appellee, there would have to be a finding by the jury “that the bolts so delivered were merchantable and fit for nse for tight barrels, and such character of bolts as the contract required him to deliver, if he had such a contract.”

Appellant requested an instruction numbered 6, reading as follows: “You are instructed that, under the evidence of the plaintiff himself, Plyler did not authorize the plaintiff, Bock, to advance funds of his own to purchase heading bolts, and you are instructed that the plaintiff cannot recover any funds he advanced unless the bolts so purchased with his funds were accepted by the defendant, and, before the defendant in this ease can be held liable for the bolts in question, they must have been properly inspected and passed as marketable bolts for the purpose for which they were gotten out.”

This instruction was refused, and properly so. It is undisputed that the company did not inspect or accept the bolts, and, as appellee points out, the company might have avoided its liability by a failure to inspect or to accept, although it was under the duty of inspecting the bolts and of accepting those which conformed to the specifications.

The court modified this instruction, and, as modified, it read: “You are instructed that, under the evidence of the plaintiff himself, Plyler did not authorize the plaintiff Book to advance of his own funds to purchase heading bolts, and you are instructed that the plaintiff cannot recover any funds he advanced, unless the bolts so purchased with his funds met the requirements of tight barrel heading and to be good merchantable timber for their purposes.”

The modified instruction was excepted to upon the sround that appellee had not testified that he was authorized to nay for the bolts, and that his payment was therefore voluntary and could not be recovered.

We think no error was committed in divine: this instruction. It did not authorize the jury to find for a DP elle e for the full amount of the payments made bv him, but it told the jury not to find for apuellee at all unless the bolts he had paid for met the requirements of the contract. According to the terms of the agency, as testified by appellee, himself, he was not entitled to be reimbursed for any payments except for bolts which met the specifications, and the instruction does not permit a larger recovery. In this respect the instruction is one which would require a specific objection to distinguish between the amount due on account of the payment made and the amount due if the staves had stood the inspection.

Appellant insists, however, that ' appellee cannot recover any part of the payments, as none of them were authorized. In view of what we have said, this question is really unimportant. If appellee can recover the contract price of such of the bolts as met the requirements, and his recovery is thus limited, it is immaterial whether he recovers that amount as payments made or as the sum due him under the contract.

We think, however, that a recovery could be had for money advanced if, according to appellee, the execution of his agency required him to make this advance to buy the staves. He bought the bolts from various persons upon his own inspection, subject to the company’s right of reinspection, but he was required to pay for them when they were delivered to him, and his agency, according to his testimony, contemplated that he should dó so.

In Clifton v. Ross, 60 Ark. 97, it was said: “A request, to undertake an agency or employment, the proper execution of which involves the expenditure of money on the part of the agent, operates not only as an implied request on the part of the principal to incur such expenditure, but also as a promise to repay it. Mechem’s Cases on Agency, 544.” See also § 458, chapter on Agency, 2 C. J. 793; § 17, chapter on Principal and Agent, 21 R. C. L. 834; § 1601, vol. 1, Mechem on Agency (2d ed.) ; § 118, Tiffany on Agency.

There is no error in the record, except the one indicated, but for that error the judgment will be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. L. B. Stone Grocery Company.
    Opinion, delivered March 17, 1924.
    1: Railroads — liability for setting out fire — evidence.—In an action for loss of a stock of groceries by fire alleged to have been set by a spark from defendant’s locomotive, evidence held to sustain a finding that defendant was liable.
    2. Appeal and error — weight of testimony. — It is - not within the province of the iSupreme Court to pass upon ■ the weight of •testimony. ■ ■ • . .
    3. Evidence — opinion of non-expert. — In an action for a fire loss alleged to have been caused by a spark from defendant’s locomotive, where there was a dispute as to whether a heavy freight train had passed just before the fire, and a witness testified that he slept on the floor by an open door not more than 100 feet from the fire, and, though unaccustomed to the noise of trains, did not hear any train passing at .this time, it was not error.to refuse to permit him to testify whether, in his opinion, he would have been awakened by a heavy freight train being pulled up grade about the time of the fire, since a jury- of ordinary intelligence would not require the aid of such opinion to reach a conclusion.
    4. Trial — instruction—necessity of request. — Where .the court properly instructed the jury as to the measure of damages being the market value, if the defendant desired to have the jury instructed as to the proper method of arriving at the market value, he should request a correct instruction on that' subject.
    5. Appeal and error — instruction—harmless error. — In an action for destruction of goods by fire, an instruction that the measure of damages was the reasonable cash market value at the time and place of the fire, not exceeding the amount claimed, was not prejudicial as allowing the jury .to fix the. retail market value without deducting overhead expenses of selling and delivering, where there was no testimony as to the retail "market value, and the judgment was for less than the value of .the goods destroyed according to the undisputed evidence.
    Appeal from Ouachita Circuit Court; C. W. Smith, Judge;
    affirmed.

      E. B. KinsiV'Orthy and Samp Jennings, for appellant.
    1. After the witness Shirey had detailed the facts, defendant was entitled to have his opinion as to whether or not, if a heavy train had gone by when they claimed one went by, be would have beard it. 4 Wigmore on Evidence, 2d ed., §§ 1920, 1929, and cases cited; Id. § 1924; McKelvey on Evidence, 222, § 132; Id. 224, § 134; 11 R. C. L. 568, 569, § 5; 111 U. S. 612, 2S L. ed. 536; 3 Wigmore on Evidence, § 1918; 84 Conn. 169; 79 Atl. 59; 37 L. R. A. (N. S.) 591; 87 Ark. 443, 112 S. W. 967; 77 Kan. 580, 96 Pac. 68; 155 Mo. App. 70; 135 S. W. 98; 107 N. W. 1102, 6 L. R. A. (N. S.) 150; 91 Tex. 454; 40 L. R. A. 209; 44 S. W. 274.
    2. Instruction No. 3 on the measure of damages was erroneous in that it did not properly direct the jury to the actual cash value of the goods destroyed. Since the goods were a total loss, the question of the value of the goods as damaged did not arise. 110 Ark. 49, 160 S. W. 889.

      Powell & Smead and Smead & Meek, for appellees.
    1. The opinion evidence of the witness Skirey was not admissible. The rule is clearly stated in Traction Co. v. Nelson, 66 Ark. 494.
    2. Instruction 3 bn the measure of damages was correct. If appellant desired that the jury be instructed on a proper method of ascertaining the reasonable market value of the goods at the time and place of the fire, a separate request should have been made for such instruction. 110 Ark. 49, cited by appellant, supports this view.
   Humphreys, J.

Appellees brought suit against appellant in the circuit court of Ouachita County to recover $5,288.43 for the destruction of a stock of groceries and certain fixtures owned by L. B. Stone Grocery Company, by fire alleged to have been started with sparks from one of appellant’s locomotives. The complaining insurance companies had issued policies of insurance upon the stock and fixtures to the L. B. Stone Grocery Company, partially indemnifying it against loss bv fire, and settled with it. They joined as plaintiffs in the suit, claiming the right to recover the several amounts paid by them upon the policies, by way of subrogation to the rights of said grocery company. The grocery company claimed a balance of $3,321.90 after settlement with the various companies.

Appellant filed an answer, denying the material allegations of the complaint.

The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, which resulted in a verdict and consequent judgment against appellant for the amount claimed, from which is this appeal.

Appellant contends for a reversal of the judgment upon the alleged ground that the evidence is insufficient to sustain the verdict. The fire occurred about 2:30 o’clock on the morning of July 13, 1921. The building which contained the stock and fixtures was situated about fourteen feet from the railroad track, near the depot, at Camden. Appellant introduced its records made by its dispatchers and agents, showing that no trains passed through Camden later than 11:30 p. m. July 12, or earlier than 4 a. m. July 13. It also introduced a number of witnesses who testified that no train passed through Camden upon its tracks between those hours, and that the fire originated inside the building. The argument is made that, while the train sheets are not conclusive, yet, when considered in connection with its other testimony, the evidence is so strong that it is apparent the verdict was the result of passion and in disregard of the evidence as to passing trains. We cannot agree with learned counsel for appellant in this conclusion, for appellees introduced substantial testimony to the effect that a heavy freight train, pulled by a locomotive, emitting sparks, passed by the scene of the fire about thirty minutes before it was discovered, and that the fire originated on the outside of the building. C. U. Mendenhall, die Seals, and Hezekiah King testified that they saw such a train pass just before the fire, and that the engine was emitting sparks. Jim White and Will Wood testified that they heard the train pass. Appellees introduced a number of witnesses who testified that the roof was the first part of the building to catch on fire. There is sufficient testimony in the record, of a substantial nature, to support the verdict. It is not within the province of this court, on appeal, to pass upon the weight of the testimony.

Appellant also contends for a reversal of the judgment because the court refused to permit J. D. Shirey, who was asleep oh' the floor by an open door, in a house not more than 100 feet from the scene of the fire, to testify whether, in his opinion, he would have been awakened by a heavy freight train being pulled up grade, had it passed the depot about 2:30 o ’clock on the morning of the 13th. Shirey testified that he was a farmer, not used to the noise of trains, and that he was not aroused by the passing train a short time before the fire was discovered. A jury of ordinary intelligence could have determined from the facts detailed, and other facts which might have been detailed, whether the noise made , by such a train would have awakened Shirey, as well without as with his opinion. The court said, in Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, “as a general rule, witnesses who are not required to testify as experts must state facts, and not conclusions.” And also that “opinion evidence is not admissible when the fact is susceptible of being adequately exhibited to the jury in the ordinary way.” The ordinary way to have ascertained whether a passing train would have likely awakened Shirey, as a circumstance tending to show that such a train had not passed, would have been to show that his hearing was acute, and that he was a light sleeper, in addition to the circumstances which were developed. The subject of the inquiry did not call for or require the opinion of a non-expert witness to aid the jury in arriving’' at the truth.

Appellant also contends for a reversal of the judgment upon the alleged ground that the court erred in instructing the jury upon the measure of damages. The court instructed the jury that the measure of damages, if any, was the reasonable cash market value of the property destroyed at the time and place of the fire, not exceeding the amount asked for in the complaint. In objecting to the instructions, appellant pointed out that the proper measure of damages was the market value of the goods at the time of.the fire, at the point where they were bought in bulk, plus the cost of transportation, less depreciation by reason of time or otherwise. The suggestion of appellant was not a proper measure of damages, but was simply a method by which to ascertain the market value of the goods at the time and place of the fixe. The request to substitute' the method of ascertaining the value for the measure of damages was improper. The request should have been embodied in a separate instruction and requested by appellant, if it desired that the jury- be instructed as to the proper method of arriving at the market value. Appellant 'did' not request a separate instruction to this effect. Objection is also made to the instruction .that it allowed the jury to fix the retail market value of the goods destroyed without deducting overhead expenses of selling and delivering same. The instruction could not have been thus construed by the jury, for no testimony was introduced tending to show the retail market value of the goods. The proof as to the value, of the goods was undisputed, and based upon the purchases as shown by the invoices, after deducting the net merchandise sales therefrom. The judgment was for $2,484.76 less than the value of the goods destroyed, according to the undisputed evidence. Appellant was not therefore prejudiced in any way by the instruction.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Rogers v. State.
    Opinion delivered March 24, 1924.
    1. Seduction — indictment.—An indictment for seduction held not fatally defective for failure to allege the day and month on which the offense was committed.
    2. Seduction — corroboration of prosecutrix. — Evidence held sufficiently corroborative of the testimony of the prosecutrix in a seduction case to sustain a conviction.
    3. Criminal law — instruction as to circumstantial evidence.— In a prosecution for seduction, an instruction that, if the State, in whole or in part, relied upon circumstantial evidence for a conviction,' the circumstances relied upon must not only be consistent with defendant’s guilt, but inconsistent with his innocence, was properly refused where the State did not rely entirely upon circumstantial testimony.
    4. Criminal law — singling out testimony. — In a prosecution for seduction, where defendant and prosecutrix had been engaged to be married for three years before the offense alleged to have been committed, an instruction that the jury might consider the fact of such engagement as tending to contradict the testimony of the prosecutrix was properly refused.
    Appeal from Dallas Circuit Court; Turner Butler, Judge;
    affirmed.

      D. D. Glover, for appellant.

      J. 8. TJtley, Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose and J. S. Abercrombie, Assistants, for appellee.
   McCulloch, C. J.

Appellant was convicted of the crime of seduction under an indictment which, omitted the day and month the crime was alleged to have been committed. The court overruled appellant’s demurrer to the indictment, and this ruling is assigned as error. The indictment was returned by the grand' jury on November 24, 1921, and it is alleged that the offense was committed “on the-day of--, 1921.” We have heretofore decided that the omission of the date of the alleged offense is not such a substantial defect as renders the indictment demurrable. Grayson v. State, 92 Ark. 415; Threadgill v. State, 99 Ark. 126.

'The principal contention in the case is that the evidence is not sufficient to sustain the verdict, in that there is no corroboration of the testimony of the injured female.

Appellant and Ida House, the female alleged to have been seduced, lived in Dallas County, on adjoining farms, the girl living with her father, who was a widower, and appellant living with his father. They had known each other for a long time, and, according to the testimony of the girl, became engaged to marry during the year 1917, and the engagement continued until about Easter Sunday in April, 1921, after the girl had become pregnant as the result of her intercourse with appellant. The girl testified that appellant induced her to have intercourse with him by his promise to marry her; that the first act of intercourse occurred in November or December, 1920, and that the intercourse continued from time to time until appellant quit going with her the following April. Her baby was born on November 14, 1921, and she testified that appellant was the father of the child, and that she had never indulged in sexual intercourse except with appellant.

Appellant joined the army at Camp Pike in September, 1918, and remained there until he was discharged in December, 1918. The State introduced in evidence numerous letters written by appellant to the girl during his stay at Camp Pike. These letters were full of words of endearment, which tended to establish the close relation between appellant and the girl and corroborate her in the statement that they were engaged to be married.

It was proved by numerous witnesses that appellant visited the girl and accompanied her to church and other places, and in other respects showed her marked attention during the whole time she claims they were engaged to be married. Appellant’s attentions to the girl were not exclusive, but it is shown that he went with her a great deal, and only occasionally with other girls, and that she was visited by other young men at times, but not to the extent of appellant’s attentions to her.

Two of the witnesses in the case testified' to statements made to them by appellant, which the jury might have interpreted as admissions on the part of appellant that he was engaged to be married to the girl.

We are of the opinion that, if full force be given to all circumstances proved in the case and the legitimate inferences which may be’ drawn therefrom, the evidence was sufficient to furnish substantial testimony tending to show that appellant was engaged to be married to the girl, and that he obtained sexual intercourse with her by virtue of his promise to marry. The evidence was sufficient therefore to sustain the verdict.

There are numerous assignments of error with regard to the court’s charge to the jury, but many of them 'are not of sufficient importance to discuss. • Some relate to the refusal of the court to give certain instructions which were covered in other parts of the court’s charge. One of the assignments relates to the refusal of the court to give instruction No. 15, which would have told the jury that “when the State, in whole or in part, relies upon circumstantial evidence for a conviction, the circumstances relied upon must not only be consistent with defendant’s guilt, but must be inconsistent with his innocence ; they must be so clear and strong that they exclude every hypothesis save that of his guilt.” This instruction was erroneous and properly refused, because it was made applicable where the State did not rely entirely upon circumstantial evidence. Green v. State, 38 Ark. 304; Logi v. State, 153 Ark. 317. Furthermore, it was not prejudicial, for the reason that it was covered, in substance, by the instructions given by the court on the subject of reasonable doubt. Green v. State, supra; Thompson v. State, 130 Ark. 217.

Another assignment is with reference to the refusal of the court to give an instruction telling the jury, in substance, that, in determining whether or not sexual intercourse was obtained by a false promise of marriage, the jury might consider the fact that the alleged engage-. ment between appellant and Ida House existed from the year 1917 until November, 1920, before the first act of sexual intercourse occurred. This was a circumstance which might have been argued, with more or less force, as one tending’ to contradict the testimony of the girl that appellant was the author of her fall from virtue, but it was improper for the court to emphasize it by incorporating it in the instructions. The court instructed the jury to consider all the circumstances proved in the case in determining the question of appellant’s guilt or innocence. It is not good practice to single out facts or circumstances in the court’s charge to the jury.

Upon consideration of the whole case, we are of the opinion that there is no error in the record, and, there being sufficient testimony to support the verdict, the judgment must be affirmed, and it is so ordered.


text:
    St. Louis-San Francisco Railway Company v. Britton.
    Opinion delivered March 24, 1924.
    1. Removal op causes — sufficiency of petition. — In an action for the death of plaintiff’s intestate, against a railroad company and its engineer and fireman, a petition by the railroad company which alleged that the engineer and fireman were not responsible for the killing, and that they were joined as defendants fraudulently for the purpose of depriving petitioner of its right to remove the cause to the Federal court, held to show a right to removal.
    2. Removal of causes — determination of right. — The right of removal must be determined by the state of the record in the State court when the removal is sought, and, where the right to remove depends upon the determination of an issue of fact, that issue must be tried by the Federal court on a motion to remand.
    3. Removal of causes — issue of fact — how raised. — An issue of fact upon a petition for removal can arise only upon direct allegations of fact which show fraud in the unauthorized joinder of defendants, and not upon mere conclusions or deductions from facts.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      W. F. Evans and Warner, Hardin & Warner, for appellant.
    It was reversible error to deny appellant’s petition for removal of the cause to the United States District Court on the ground of diversity of citizenship. True that resident codefendants were joined in the complaint, but the allegations of the petition recited facts which compel the conclusion that this joinder was a fraudulent one and done to defeat the removal to the Federal court. The right of removal must be determined by the condition of the record in the State court at the time the removal is sought, and that court has no jurisdiction to try an issue of fact raised by the petition. 75 Ark. 116; Lewis on Removal of Causes, 432, § 258; 226 Fed. 323, 326; i87 Ark. 136; (U. S.) 66 Law. ed. 144; 128 Fed. 85; 57 Fed. 169; 180' Ky. 848; (U. S.) 51. Law. ed. 430.

      J. Seaborn Holt, for appellee.
    In order to make the petition for removal sufficient, it was necessary to traverse or deny in such petition that the engineer and fireman, who were joined with the defendant railway company in the complaint, were in charge of the train that caused the accident. In .the absence of such denial, the case should not be removed. 144 Ark. 65; 127 Ark. 179; 232 U. S. 146.
   McCulloch, C. J.

Appellee’s intestate, W- D. Brit-ton, was run over and killed by a train of cars, operated by appellant’s servants, on the night of July 1,1922, at a point on G Street, in the city of Fort Smith, where appellant’s tracks cross said street. According to the pleadings and proof, there were seven parallel tracks of appellant at that place, and Britton was run over by one or more freight cars in a train of sixteen cars being switched along one of those tracks. Britton was employed as night watchman at an oil mill near the tracks, and it is alleged in the complaint that, as he was crossing the railroad tracks along G Street, he was struck by the train, which was being backed down the track, and was knocked down, run over, and killed. The engineer and fireman operating the engine of the train which is said to have caused the injury were joined as defendants, upon general allegations that the injury and death of Britton was caused by the joint negligent acts of appellant and of the fireman and engineer, A. E. Kimes and W. L. Corrotto, respectively.

The complaint contains allegations as to four acts of negligence which caused the injury, viz: (1) failure to keep a constant lookout for persons and property on.the track, when, if the lookout had been kept, the peril of deceased would have been discovered in time to avoid the injury; (2) failure to place a signal light on the end of the rear car in the train, or to place some person on the end of the train to keep a lookout and give warning to persons approaching the track; (3) failure to ring the bell or. sound the whistle, or give any kind of warning signal, as the train was being backed over the crossing; and (4) the failure to maintain an automatic electric alarm bell at the crossing.

In apt time appellant filed its petition and bond for removal of the cause to the District Court of the United States for the Western District of Arkansas, Fort Smith Division, which petition the court overruled, and a trial of the ease before a jury resulted in a verdict in favor of appellee against appellant railway company, but in favor of defendants Corrotto and Kimes.

Appellant’s petition for removal contained appropriate allegations as to diversity of citizenship of appellee and appellant, and as to the jurisdiction of the Federal court with respect to the amount involved. It. also contained allegations to the effect that there was no cause of action against appellant’s codefendants, Corrotto and Kimes, and that they were fraudulently joined as defendants in the action for the sole purpose of depriving appellant of its right to remove the cause to the Federal court. It was alleged in the petition, in substance, that defendants, Corrotto and Kimes, were neither, in any way, responsible for the injury alleged to have been sustained; that the injury to Britton was not caused by the failure of either of said codefendants of appellants to keep a lookout; that said codefendants, Corrotto and Kimes, were the engineer and fireman of the train, which was in charge of .a conductor, or foreman of the switching crew, and that said codefendants, Corrotto and Kimes, were not charged with the duty of placing signal lights or lookout on the rear end of the train, or with maintaining an automatic alarm signal at the crossing. It also denied that the injury to Britton resulted from any failure on the part of Corrotto and Kimes to keep a lookout from the engine. The allegations of the petition were sufficient to traverse every allegation of the complaint which tended to charge negligence on their part which resulted in the injury to Britton. It is also alleged in the petition that appellee, when the suit was instituted, was apprised of all the facts, but had fraudulently joined Corrotto and Kimes as defendants in the action for the purpose of depriving appellant of its right of removal to the Federal court. The petition made a case, we think, for removal, and the court erred in failing to grant the petition and remove the cause.

It has long been established by decisions of the Federal court, as well as by decisions of this court, that the right of removal must be determined by the state of the record in the State court at the time the removal is sought, and that, where the right to remove depends upon the determination of an issue of fact, that issue must be tried by the Federal court on a motion to remand. Texarkana Tel. Co. v. Bridges, 75 Ark. 116; St. L. S. W. Ry. Co. v. Adams, 87 Ark. 136; Wecker v. National E. & S. Co., 204 U. S. 176; Wilson v. Republic Iron & Steel Co., 257 U. S. 92. It has been decided, however, that the issue of fact can only arise upon direct allegations of facts which show fraud in the unauthorized joinder of defendants, and not mere conclusions or deductions from facts. Chesapeake & Ohio R. Co. v. Cockrell, 232 U. S. 146; Lusk v. Osborn, 127 Ark. 170; Neto Coronado Coal Co. v. Jasper, 144 Ark. 58.

Counsel for appellee rely on the case of New Coronado Coal Co. v. Jasper, supra, as militating against appellant’s right of removal upon the facts set "forth in the petition. We do not, however, agree with counsel in this, for, in the petition in the present case, there is a complete traverse of appellee’s right of action set forth in the complaint upon every theory. In the case cited there was a failure to allege in the petition facts which would negative one of the theories upon which recovery was sought in the complaint, and we said that this was not sufficient to show grounds for removal oh account of improper joinder of codefendants. Such is not the state of the present case. Counsel for appellee contends that the petition contains no denial of the allegation that Corrotto and Kimes were in charge of the train which caused the injury, but we think that there is a specific denial in the petition, so far as concerns the acts of negligence for which they might have been responsible, other than failure to keep a lookout from the engine. It is alleged in the petition that the train was in charge of a conductor or foreman of the switch crew; that Corrotto and Kimes were not in any way answerable for the injury or damage alleged to have been sustained as the result of the death of plaintiff’s decedent; that it was not the duty of either of them to place a signal or warning light on the rear end of the train, but that that duty devolved upon the conductor of the train, if any one was chargeable with such duty; and that it was not the duty of Corrotto or Kimes to station other men on the train or at other places to keep a lookout.

The petition, as before stated, contained denials that there was a failure on the part of Corrotto or Kimes to keep a lookout from the engine, or that the injury resulted, from any failure on the part of either of them to keep a lookout.

There is no escape from the conclusion that the allegations in the petition were direct to. the effect that appellant’s codefendants were not responsible in any way for the injury, that appellee was aware of the fact, and fraudulently joined them for the purpose of preventing a removal of the cause to the Federal court. This, as before stated, made out a case, on the face of the record, for removal of the cause, and the petition should have been granted. For this reason the judgment is reversed, and the cause remanded with directions to grant the petition in accordance with its prayer.


author: Wood, J.

text:
    OSBURN v. LINDLEY.
    Opinion delivered March 24, 1924.
    1. Exemptions — purchase money.— Under Const., art. 9, § 1, providing that “no property shall be exempt from execution for debts contracted for the purchase money therefor,” held that the rents and profits of land, after institution of a suit to foreclose a vendor’s lien and the appointment of a receiver, stand in the same category as the land itself, and are not exempt.
    2. .Vendor and purchaser — nature of vendor’s lien. — A “vendor’s lien” in equity is of the same nature as a mortgage, and is treated and enforced as such.
    3. VuNDOR AND PURCHASER — VENDOR’S LIEN — APPLICATION OF RENTS.— Upon default in payment of the purchase money of land, the vendor may file his bill in equity and procure the appointment of a receiver pendente lite to sequester the earnings of the property for his benefit during the pendency of the suit.
    Appeal from Washington Chancery Court; Ben V. McMahan, Chancellor;
    affirmed.

      John Mayes, for appellant.
    1. The judgment here is on debt by contract, and appellant was entitled to the exemptions allowed by law. Const., art. 9, § 2; C. & M. Digest, § 5545.
    2. Appellant claimed his exemptions in the manner prescribed by the statute. C. & M. Digest, 5549. Being a fund in court, it was proper to apply directly to the court. 131 Ark. 5'31; 202 S. W. 241; 31 Ark. 652; 68 Ark. 102; 56 S. W. 635; 82 Am. St. Rep. 282; 79 Ark. 399; 155 Mo. 166.

      S. L. Pearson, for appellee.
    ' ■ 1. The fund in the hands of the receiver, derived from the rents and profits from the land on which existed the vendor’s lien, was not subject to the exemption claims to the debtor. 65 Ark. 129; 73 Ark. 589; 71 Ark. 484; 65 Ark. 316; 97 Ark. 397. See also 72 Ark. 350; 141 Ark. 572; 144 Ark. 79; 146 Ark. 472; 147 Ark. 211.
    2. The appointment of a receiver in this instance was authorized by the statute.. C. & M. Digest, § 8612. And equity has extended the practice of appointing receivers to impound the rents and profits of mortgaged property, to all holders of liens, where the lands are insufficient to pay the indebtedness, or the defendant is insolvent. 19 B. C. L. 369-372; 202 Ala. 677; 1 Jones on Mortgages, 5th ed., 609; 2 Id., 5th ed., 442.
   Wood, J.

On October 2, 1920, the appellants purchased of the appellee certain real estate in Washington County, Arkansas, and paid thereon, in cash, the sum of $2,000, and executed tlieir two promissory notes in the sum of $1,000 each for the balance of the purchase money. These notes were secured by a vendor’s lien. The purchase by appellants was subject to a mortgage in favor of the Farmers’ & Merchants’ Bank of Springdale, Arkansas, for the sum of $3,000. • The appellants failed to pay the notes when due, and the appellee instituted an action to recover the amount of the.notes and to foreclose his vendor’s lien. A receiver was appointed to take charge of the property. He did so, and reported to the court that he had in his hands, after deducting all expenses of the receivership, the sum of $454.22, which he had realized from the fruit and berries produced on the lands during the year 1922. The court entered its final decree on June 22, 1922, in favor of the-appellee for the sum of $2,269.74, and directed the lands to be sold, subject to the prior mortgage in favor of the bank, to pay the judgment.

On November 22 the appellants filed a. claim for exemptions in the sum of $500, and prayed the court to direct the receiver to allow them that sum out of the amount in hi-s hands. The court refused this prayer, and directed that the amount in the receiver’s hands, less the sum of $25, be applied toward the satisfaction of the decree in favor of the appellee against the appellants. The appellants appeal from that part of the decree which refused their claims for exemptions.

No attack is made upon the order of' the court appointing the receiver to take charge of the property. Article 9, § 1, of our Constitution provides “that no property shall be exempt from execution for debts contracted for the purchase money therefor while in the hands of the vendee. ’ ’ The bringing of this action and the petition asking for the appointment of a receiver to take charge of the rents and profits of the lands on which the vendor’s lien existed had the effect of .impounding the proceeds of those rents and profits in the hands of the receiver for the benefit of the vendor, to be appropriated in satisfaction of the decree in his favor for the purchase money. The rents and profits on the lands, after their sequestration by the institution of this suit and the appointment of a receiver, stand in the same category as the land itself. A vendor’s lien in equity is of the same nature as a mortgage; and is treated and enforced as such. Priddy & Chambers v. Smith, 106 Ark. 79; Corcorren v. Sharum, 141 Ark. 572, at page 578.

The vendee, up to the time of the institution of the suit, was entitled to the possession of the lands and the rents and profits derived therefrom, but, after this suit was instituted, the vendor had the right to have these rents and profits applied toward the satisfaction of the debt for the purchase money. See Mo. Pac. Ry. Co. v. Frost, 146 Ark. 472. A vendor, upon default in the payment of the debt for the purchase money, may file his bill in equity to obtain foreclosure and sale, and may, in proper cases, apply for the appointment of a receiver, or any other proper method to sequester for his benefit the earnings of the property during* the pendenev of the suit. 2 Jones on Mortgages, § 670. The undisputed facts of this record show that the appellant was insolvent, and that the proceeds of the sale of the lands and the funds in the hands of the receiver were not sufficient to pay the debt of the appellants to the appellee for the purchase money. It follows that the appellants were not entitled to the exemption claimed by them. The decree of the trial court to that effect is in all things correct, and it is therefore affirmed.


text:
    Davis v. Davis.
    Opinion delivered March 24, 1924.
    1. Divorce — burden op proof. — The burden of proof in divorce suits is upon the plaintiff.
    2. Divorce — indignities .to the person — evidence.—Testimony of a husband that his wife followed him wherever he went with unfounded accusations of infidelity, exhibiting toward him a violent and uncontrollable temper, accompanied with profane language and abusive epithets, and that she smashed dishes and slammed doors, and refused to permit him to pick up his mother while driving in an automobile, and drove his mother from his home, was sufficient, if corroborated, to entitle the husband to a divorce on the ground of such indignities as rendered his condition in life intolerable.
    3. Divorce — uncorroborated testimony of spouse. — Divorces will not be granted upon .the uncorroborated testimony of either party, even if admitted by the other party.
    4. Divorce — incompatibility of parties. — A divorce will not be granted merely upon the ground of incompatibility of the parties and the futility of any hope of future reconciliation.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    reversed.

      Martin, Wootton & Martin, for appellant.

      Geo. P. Whittington and Coleman & Gantt, for appellee.
   Wood, J.

This is an action by the appellee against the appellant for divorce. The grounds alleged in the complaint are that appellant had offered such indignities to appellee as to render his condition in life intolerable; that appellant had deserted him' for more than a year; and had been guilty of such cruel and barbarous treatment toward him as to endanger his life. *

The appellant admitted that appellee was a resident of the State, but denied that he was a resident of Jefferson County, and denied specifically all the alleged grounds for divorce set up in the complaint. The appellant also alleged adultery and abandonment on the part of the appellee, but she asked for no affirmative relief other than the expense incident to the defense of the action. The court found in favor of the appellee on the ground that the appellant had offered such indignities to appellee as to render his condition in life intolerable.

Much irrelevant and incompetent testimony has been brought into this voluminous record of over six hundred pages. We have eliminated from our consideration such testimony, as far as possible. There is absolutely no evidence in the record to sustain the first and third grounds, and, as we view the abstract and brief of the appellee, he seems to have abandoned these grounds and insists only on the second ground, to-wit, that the appellant offered such indignities to appellee’s person as to render his condition in life intolerable. This is purely an issue of fact, which concerns the appellant and appellee only. No useful purpose as a precedent could be served by setting out and arguing in detail the evidence which, we conceive, sustains the conclusion we have reached. Besides, the testimony is so voluminous it would be wholly impracticable to do so. We shall therefore state the rules of law and the reasons for our conclusion generally, without undertaking to set forth the testimony in detail.

The burden of proof was upon the appellee, and, if his testimony, without corroboration, could be accepted, it would be entirely sufficient to show that the conduct of the appellant toward the appellee had been such as to render his condition in life intolerable. For he shows by his testimony that she had dogged his footsteps in an insane jealousy to such an extent that he could not attend to his ordinary business affairs in the city of Hot Springs in peace and with efficiency; that he could not go about the streets without being hounded by her at every turn, with» accusations that he was too intimate with other women, and thus disloyal to her; that, when he was called out of the city on business, she charged that his alleged business was but a mere subterfuge to cover appointments with other women out of the city for lecherous purposes, when such was not the case at all. He testified unequivocally that he had never in a single instance violated his marriage vows, and yet, whether he was at home or abroad, on legitimate business or legitimate pleasure, she followed him with her suspicions and accusations of his infidelity. He testified to facts which, if true, showed that appellant had a violent and uncontrollable temper, which often manifested itself in profane language and the most abusive of epithets. He relates various instances where appellant, without apparent cause, and without any cause, so far as appellee knew, flew into violent fits of passion. On one occasion, in the presence of his mother, aunt and brother-in-law, she got mad and smashed the dishes, slammed the door, and broke the glass. On another occasion, when appellee and appellant were returning home in their car, appellee discovered his mother and nephew going in the same direction, and suggested that he would pick them up. Appellant demurred, and said, “G--d-you, if you do, I will get out of this car.” Appellee, not wishing to have a scene, did not stop the car, but, on arriving home, remonstrated with the appellant as to her conduct, and she replied, “Gr- — ■ d-you, take yo.ur mother and go to hell with her. I will never get into the car again.” Appellee testified that, on another occasion, when appellee was absent from home, appellant had ordered his mother out of their house; and on another that she cursed, raved and carried on because he would not make her a deed to property which he and appellant held by the entirety; and on another that she instituted an action against him, which she afterwards dismissed; that appellant’s conduct was so abusive of the appellee, when his mother was in the same house with him, and so abusive to his mother, that the latter could not live with them; that, after his mother left and set up her own home, when appellee would visit Ms mother appellant would. fuss at him about it, and say that he was out there talking about appellant.

These are samples of the innumerable acts of misconduct on the part of the appellant which the testimony of the appellee tended to prove, and which, if true, would indeed be sufficient to show that appellant had offered such indignities to appellee as to render his condition in life intolerable. But all these alleged acts are categorically denied by the appellant, except she does confess that she was jealous of the attention appellee was giving to other women, and suspected him of infidelity.

After a careful consideration of the entire record, we find that appellee has wholly failed to adduce proof to corroborate Ms testimony to such an extent as to entitle him to a divorce. Appellee’s aunt corroborates him as to the incident when, according to her testimony, in 1907, twelve years before the institution of the suit, the appellant flew into a 'rage on account of appellee’s mother, and broke the dishes and mirror in the room. One other witness corroborated the testimony of the appellee to the effect that, one evening while appellee was at the Elks Club, appellant came to the door and told witness to tell that “Jew s-of a b-to come out here — to come out here, and come out quick.” This witness .also testified to two or three occasions, when he and appellee were driving in the automobile, that appellant would drive around where they were, and that on one occasion, as she went by, she said, “There is that skunk! ’. ’ Witness didn’t know whether appellant referred to witness or appellee. And still another witness testified that appellant called appellee a skunk.

Another witness, appellee’s nephew, testified that, on one occasion, appellant followed the witness behind his car, and that at one time, as they turned down a street, she passed him, when witness had on his uncle’s hat, and called him a “dirty skunk.” Other witnesses testified tending to corroborate the testimony of the appellee to the effect that, on different occasions, the appellant manifested that she was jealous of her husband, and indicated that she suspected that, at times, in the city and ont, he was too .attentive to other women.

The above states substantially the facts which the testimony of the appellee tended to prove, and the extent of its corroboration. But, on the other hand, the testimony of the appellant denies that she used profane language, and denies specifically any alleged abuse or mistreatment of the appellee and of his mother. Appellant concedes that, on une occasion, when she had caught the appellant and a certain woman in what she conceived to be a compromising situation, she was angered to that extent of calling him á “damn rat.” Appellant protests that she. had made the appellee a dutiful and faithful wife, attending at all times to her household duties with scrupulous exactness, .and that she had never given appellee occasion to curse and abuse her, which he. had done frequently. The testimony of other witnesses clearly shows that appellant was a woman whose character was above reproach, and those who were brought in closest contact with her as neighbors, and those who had business relations with her, testified that she was in all respects an industrious and faithful housewife, and did not, in any of her conduct and conversations, indicate that she was a woman who would use profane language. Their testimony tends to prove that appellant was a good woman and that her testimony was entirely credible.

On the other hand, there are two circumstances in this record which convince us that the learned' trial court was not justified in treating the testimony of the appellee as entirely worthy of credit. The appellee testified that the appellant had threatened his life so many times, on account of his supposed intimacy with another woman, that he conceived the idea that, if he changed' the beneficiaries named in one of his policies for life insurance from his mother and wife, and made this woman the beneficiary, this would prevent her from carrying out her threats to kill him; that his mother accordingly signed the application for a change of beneficiary, and that he also signed the name of the woman with whom Ms wife suspected him of having the liaison; that this paper was hut a pretense on his part for the purpose indicated, and was never made effectual. But witnesses who were thoroughly familiar with the handwriting of the woman in question, and who, from their testimony, could not be mistaken about it, including that of a lady who was very intimate with her, and who had kept the child of this woman while its mother was away, and had bad frequent correspondence with her, and had seen her letters to her child, and also the testimony of an assistant cashier of the trust company, the paying teller of the bank where this woman cashed her checks, and who was entirely familiar with her signature, testified that the signature to the application for a change of beneficiary was that of the woman herself. The testimony of- the husband of the woman was to the same effect. ■

The other circumstance is, and it is not denied by the appellee, that, during the time he was being suspected by appellant of infidelity to her and of illicit relations with another woman, he wrote the woman three letters. In two of these letters he began by addressing her “My devoted wife,” and in the third as “My darling wife.” These letters are full of protestations of love and devotion to the woman addressed, and also 'contain expressions showing unmistakably that the woman was equally devoted to him. They conclude by such expressions as, “Groodby, my angel, Grod bless you; with love, hugs and kisses, I am, your affectionate and devoted Daddy.”

There is still another circumstance, the details of which it is not necessary to set forth, which tended to prove that appellee was caught, on a certain occasion, by the appellant and detectives employed by her, in a situation which, to say the least, justified the inference that appellee was too intimate with the woman about whom the appellee charged that the appellant was insanely jealous.

In the comparatively recent case of Pryor v. Pryor, 151 Ark. 150, 157, we said: “Divorces are not granted upon the uncorroborated testimony of the parties and their admission of the truth of the matters alleged as ground therefor.” So, even if the appellant had admitted all that appellee charged against her, we could not grant him a divorce upon his uncorroborated testimony. But the facts of this record demonstrate the profound wisdom of the rule of law prohibiting the granting of divorces upon the uncorroborated testimony of either spouse. Here the uncorroborated testimony of the appellee, if accepted, sustains his case, but the other testimony in the record shows that he is thoroughly discredited, and he lacks the sufficient corroboration in essential particulars to establish the allegations of his complaint.

In the ease of Rhea v. Rhea, 34 Ark. 41, we said: “In conflicts between the two depositions (husband and wife), hers must be deemed of greater weight, because he seeks to obtain a divorce by his own testimony, and she attempts to 'defeat it by hers. He must establish alleged causes of divorce by corroborating evidence. In getting at the truth in relation to private scenes, quarrels and injuries between husband and wife, unwitnessed by others, it may be well to admit the testimony of the parties in divorce cases, but, because of the rule, founded on public policy, that a divorce will not be granted upon the unsupported testimony of the party seeking it, it necessarily follows that the greater weight must be given to the party opposing it, where their depositions conflict.”

The learned counsel for the appellee argue to the effect that the record, as a whole, shows the utter incompatibility of the appellant and the appellee and the futility of any hope of future reconciliation, and that to deny him a divorce under such circumstances, which, they contend, indicate “a continued and enduring estrangement, suspicion and alienation from the appellee, which has finally culminated in a settled hate, would be merely to force upon the appellee the indefinite continuance of an intolerable condition which no sound public policy demands.” We cannot concur in these views. The ease and frequency with which divorces are so often obtained as a matter of expediency to the individuals concerned is not only a menace to orderly society, but also in it lurks one of the dangers to the stability of our great republic. For one of the foundation pillars of our government is the sanctity of the marriage relation and the influences of the home life, where the holy bond of wedlock is looked upon with profound reverence and respect, and where the marriage vows are sedulously observed. As was said in Arnold v. Arnold, 115 Ark. 32-43, “The love and faith that are plighted when parties stand at the marriage altar should suffer long and be exceedingly kind. Marriage vows .are solemnly assumed, and should be sacredly kept. The interests of society demand that the bonds of wedlock should not be severed except upon clear proof of one or more of the grounds prescribed by our statute.” The stability and perpetuity of our institutions, in all their pristine power and purity, as. they were established by our fathers, and which give our country a primacy in civilization above all other nations of the earth, depend very largely upon the manner in which we preserve the sacred institution of marriage and home life and uphold the laws intended for their protection and preservation. Already marital vows rest far too lightly upon the heart and conscience of too many people in this country for the common weal.

This record shows that such was the case with the appellee. Therefore the decree of the trial court granting him a divorce is reversed, and his complaint is dismissed for want of equity.


text:
    Engles v. Oklahoma Oil & Gas Company.
    Opinion delivered March 24, 1924.
    1. Appeal and error — time for filing bill of exceptions. — A bill of exceptions cannot be considered by the Supreme Court if not filed within the time allowed by the trial court.
    2. Appeal and error — presumption where bill of exceptions not filed in time. — Where a decree shows that it was based on evidence which had to be preserved by a bill of exceptions, and the bill was not filed within the time allowed by the court, it will be presumed that the decree was correct.
    3. Exceptions, bill of — time for filing. — Where a decree entered on January 17, 1923, showed by its recitals that it was a nunc pro tunc decree, ordering it to be recorded as of the date of December 19, 1922, and the decree gave plaintiff 90 days in which to prepare and file his bill of exceptions, the time began to run from December 19, 1922, and filing it on April 13, 1923, was too late.
    Appeal from Sebastian. Chancery Court, Fort Smith District; J. V. Bourlancl, Chancellor;
    affirmed.

      Pryor & Miles, for appellant.

      Jas. B. McDonough, for appellee.
   Wood, J.

This is a suit by the appellant against the appellees to recover of the appellees their proportionate part of the sum alleged to be due appellant by the Oklahoma Oil & Gas Company. ' This is the second appeal in the case. See Engles v. Shaffer, 143 Ark. 31. The case, on the former appeal, was reversed, and remanded with directions to, “if it is found proper, order a reference to a master to determine the total indebtedness of the company, and to prorate that among the stockholders in proportion to the stock owned by them, after giving proper credit for sums expended for the company’s benefit. ’ ’ After the cause on remand reached the trial court, by agreement of parties, a master was appointed to take proof and make a report. In the hearing before the master the appellant introduced the opinion and mandate of the Supreme Court and the testimony in the former record. The appellees introduced certain testi- ■ mony, and the master made a report to the court, to which exceptions were filed. The cause afterwards came on for hearing before the chancery court, and what is designated in the record as the “final decree” recites as follows: “This cause was heretofore, to-wit: on the 25th day of November, 1922, heard before the court, and the said cause was taken under advisement by the court. The plaintiff appeared by his attorney, Y. M. Miles, and,the defendants appeared in person and by their attorney, James B. McDonough.

£ £ Thereafter, on the 19th day of December, 1922, the court, being well and sufficiently advised herein, finds as follows: That the reasonable cost of the well did not exceed the sum of $7,000. The court therefore, upon the cost of the well, finds in favor of the defendants, and finds that the cost of said well is $7,000, and in all other respects the court finds that the findings of the master should be sustained.

“The court therefore sustains the exceptions of the defendants to the report of the master in so far as the same relates to the cost of the well, and overrules all other exceptions to the master’s report, and finds that the master’s report should be confirmed in all other respects, and finds that the cost of the well should be tlie sum of $7,000.

“The court, after considering all the testimony, is of the opinion that the cost of the well could not, and did not, exceed the sum of $7,000, and that the plaintiff, for and on behalf of the defendants, expended for the said defendants in drilling of said well said sum of $7,000. The court sustains the finding of the master as to'the amount of payments made by each defendant.

“It therefore appearing to the court that each defendant had paid to the Oklahoma Oil & Gas Company and to the plaintiff sums in excess of the amount due from each defendant, the court therefore finds the issues in favor of the defendants.

“It is therefore by the court ordered, adjudged and decreed that the plaintiff take nothing by his complaint herein, and that the defendants have and recover of and from the plaintiff all their costs in this action laid out and expended.

“And the plaintiff, Frank Engles, excepted to the finding of the court with reference to' the cost of the well; excepted to the failure of the court to confirm the master’s report in full, and prayed an appeal to the Supreme Court, which was granted, and plaintiff was given ninety days in which to prepare and file bill of exceptions.

“And it appearing to the court that this order was had and taken on the 19th day of December, 1922, and, through misprision, not entered on that day, it is ordered entered nunc pro tunc, which is accordingly done.”

This decree was entered on the 17th day of January, 1923. Its recitals show that it was a nunc pro tunc decree, ordering to be recorded as of that date the proceedings which were had in the cause at a former day of the term. From this decree it appears that, on the 19th day of December, 1922, the court rendered judgment in favor of the appellees, to which the appellant excepted, and the court, on that day, gave the appellant ninety days in which to prepare and file his bill of exceptions. The record shows that the bill of exceptions was signed by the chancellor on April 13, 1923, and was filed on that day, in the office of the chancery clerk.

The appellees contend that there is no bill of exceptions, and they are correct in this contention. A bill of exceptions cannot be considered if it was not filed within the time allowed by the court. Routh v. Thorpe, 103 Ark. 46; Madison County v. Maples, 103 Ark. 44; Early & Co. v. Maxwell & Co., 103 Ark. 569. Where a bill of exceptions in a chancery cause was not filed within the time allowed by the court, the presumption will be that the decree was correct. Tatum v. Crownover, 94 Ark. 58. To be sure, the court could have extended the time for filing the bill of exceptions on the 17th day of January, 1923, as appellees’ time had not then expired for filing, and that was at the same term; but the chancery court did not then extend the time. The nunc pro tunc decree could only reflect what was done at a prior day' of the term, and this decree related back and took effect from December 19, 1922, the day the former decree was rendered. The recitals of the decree show that the cause was heard on evidence which had to be preserved by a bill of exceptions. There is therefore nothing before this court to show that the decree of the chancery court is erroneous, and its decree is therefore affirmed.


author: Hart, J.,

text:
    Bonner v. Coburn.
    Opinion delivered March 24, 1924.
    1. Partnership — power op surviving partner. — A surviving partner is charged with the duty of paying the partnership debts, and, to enable him to discharge this duty, he has a right to dispose of the partnership realty if necessary.
    2. Partnership — real estate. — The real estate of a partnership in equity is considered as personal property, in so far as may be necessary for the payment of partnership debts.
    3. Partnership — enforcing conveyance prom heirs op deceased partner. — Upon the death of a partner, the surviving partners, charged with the duty of paying the partnership debts, are deemed to be- possessed of the equitable title to the partnership realty, which they may dispose of, and they may compel the heirs of the deceased partner to convey the legal title to' the purchaser.
    4. Partnership — evidence.—Evidence as to negotiations for the settlement of partnership debts held to establish that partnership realty .was in fact sold by the surviving-partners for money with which to pay the partnership debts.
    Appeal from Desha Chancery Court; E. G. Hammock, Chancellor;
    affirmed.
    STATEMENT OE PACTS.
    This action was brought in the circuit court by Edward E. Bonner and Lillian Bonner Rafe against Maud P. Coburn and others to recover the possession of certain town lots in the town of Watson, in Desha County, Arkansas, with damages for their' detention. The suit was commenced on the 25th day of July, 1918, and, on motion of the plaintiffs, was transferred to the chancery court on January 20, 1919.
    The suit was defended on the ground that the lots in question were partnership property, and had been sold by the surviving partner to the defendant, Mrs. Maud P. Coburn, for the purpose of paying the partnership debts.
    It appears from the record that the lots sued for had belonged to Preston & Bonner, a firm composed of W. D. Preston and H. L. Bonner, having been purchased by them with partnership funds for partnership purposes. Preston & Bonner were engaged in running a supply store and a saloon in a building situated on some of the lots. The ocher lots purchased by the partnership were vacant lots, and have never been of much value. H. L. Bonner had active charge of the business until his death on December 11,1906. After his.death, W. D. Preston made an investigation of the partnership affairs, and found that the partnership was insolvent. He subsequently settled with the partnership creditors at fifty cents ontke dollar. The partnership real estate was sold by him to his sister, Maud P. Coburn, on December 11, 1907, and the deed was duly filed for record on the 23rd day of December, 1907. Mrs. Coburn went into possession of the property at the time the deed was executed to her, and has been in possession of.it ever since. Other facts will be stated or referred to in the opinion.
    The plaintiffs are the children and sole heirs at law of H. L. Bonner, who died intestate.
    The chancellor found the issues in favor of Mrs. Maud P. Coburn; and it was decreed that the complaint of the plaintiffs should be' dismissed for want of equity and that the title of the defendant, Mrs. Maud P. Coburn, to all of the lots involved in this suit be vested in her in fee simple, free from all claims of the plaintiffs.
    To reverse that decree the plaintiffs have duly prosecuted an appeal to this court.

      J. F. Wallace and Daoiaher <& Danaher, for appellant.
    In the absence of any provision in the partnership articles or in the decedent’s will on the subject, the survivor has no authority to continue the business, as distinguished from winding it up. If he does continue it, he alone is liable for debts incurred; and he must answer for all depreciation and loss due to such continuance. 30 Cyc. 636; 26 Ark. 135; 26 Ark. 154. The possession of land by one of the co-tenants is, in contemplation of law, possession by all of them. 26 Ark. 135; 20 Ark. 359; 55 Ark. 104; 30 Cyc. 119:- The mere fact that one co-tenant receives the entire rents of the land is not sufficient to divest his co-tenants of possession thereof, or to make Ms own possession adverse to them. 99 Ark. 87. In order therefore for the possession of one tenant in common to be adverse to that of Ms co-tenants, knowledge of his adverse claim must be ■brought home to them directly, or by such notorious acts of an unequivocal character that notice may be presumed. 99 Ark. 451..

      Coleman & Gantt and Jach Bernhardt, for appellee.
    All partnership assets of whatever form, by a fiction of equity, for commercial convenience, are personalty in the hands of the surviving partner. 69 Ark. 242. Surviving partners are trustees to wind up the affairs of the concern. 54 ,Ark. 295; 83 Ark. 306. A surviving partner is entitled to the partnership property and effects for the purpose of settling the accounts and paying the debts. 16 Ark. 616; 19 Ark. 443 ; 28 Ark. 140; 26 Ark. 135; '26 Ark. 154; 54 Ark. 395. The heirs of a deceased partner are not necessary parties to proceedings by surviving partner for the sale of partnership property, though part of it is in realty. 83 Ark. 306. Surviving* partner may take notes and a mortgage securing same in name of former firm and sue thereon, on the theory that, while the death of a partner dissolves the partnerslfip, it does not wind up the partnership. 145 Ark. 548. The existence of a partnership may be established by parol evidence. 74 Ark. 437.
   Hart, J.,

(after stating the facts). The decision of the chancellor was correct. The lots sued for belonged to the firm of Preston & Bonner. They were purchased with partnership funds, and the most valuable ones of them were used in carrying on the partnersMp business. The partnership having been dissolved by the death of H. L. Bonner, W. D. Preston, the surviving partner, by deed conveyed the lots to Maud P. Coburn for $5,000, to be used in paying the partnership debts. Upon the dissolution of the partnership by the death of Bonner, Preston, as the surviving partner, was charged with the duty of paying the partnership debts. To enable him to discharge that duty, he had the right to dispose of the partnership real estate, if necessary for this purpose. By the settled doctrine in this State, the real estate of a partnership is, in equity; considered as personal property in so far as may be necessary for the payment of the partnership debts. Coolidge v. Burke, 69 Ark. 237. This court has also held that the widow of a partner is not entitled to dower in lands which were 'bought with partnership funds for partnership purposes, which were sold as partnership property, and the proceeds of which were paid to the partnership. Welch v. McKenzie, 66 Ark. 251.

The deed from Preston to Mrs. Coburn expressly assumes to convey-the lots described in it to her. In case of insolvency of the partnership, it is clearly liable to be applied to the payment of the partnership debts, and the equitable title'thereto must be deemed to be in the surviving partner for such purpose. Upon the dissolution of the partnership by the death of one of its members, the surviving partner, who is charged with the duty of paying the debts, can dispose of this equitable interest, and the purchaser can compel the heirs at law of the deceased partner to perfect the purchase by the conveyance of the legal title: 30 Cyc. 626; French v. Vanatta, 83 Ark 306; Walling v. Burgess (Ind.), 7 L. R. A. 481, and cases cited; Davis v. Smith (Ala.), 2 So. 897; Hanson v. Metcalf (Minn.), 48 N. W. 441; and Shanks v. Klein, 104 U. S. 18, and eases cited.

In the latter case, in an opinion by Judge Miller, it is held that real estate purchased'with partnership funds for partnership purposes, though the title be taken in the individual name of the partners, is, in equity, treated as personal property, so far as is necessary to pay the partnership debts and to adjust the equities of the partners.

It is further held that for this purpose, in ease of the death of one of the partners, the survivor can sell the real estate so situated; and that, though he cannot convey the legal title which passed to the heirs or devisees of the deceased partner, his sale invests the purchaser with the equitable ownership of the real estate and the right to compel a conveyance of the title from the next of ldn or devisee in a court of equity.

But it is insisted by counsel for the plaintiffs that the testimony does not show that the partnership property was sold by the surviving partner for money with which to pay the partnership debts.

We cannot agree with counsel in this contention. One attorney who had claims against the partnership testified that he settled the claims of his clients at fifty cents on the dollar with Preston as surviving partner. Preston was at the time sheriff of Desha County, and, of course, well known to the lawyer. This settlement, tends to show that the lawyer believed that the partnership was insolvent; otherwise he would not have settled at fifty cents on the dollar the claims of wholesale merchants who were creditors of Preston & Bonner.

Henry Thane, a banker, also testified that Preston had an expert accountant to go through the partnership affairs, after the death of Bonner, and ascertained that the partnership was insolvent. The partnership property was not sufficient to pay the partnership debts, and Preston did not have property of his own sufficient to pay them. Thane, at the request of Preston, undertook to settle with the partnership creditors, and wrote them a letter .proposing to pay them fifty cents on the dollar. All of the creditors accepted the compromise, and gave Preston a receipt in full upon payment of fifty per cent, of the amount of their claims. These creditors were all wholesale merchants living in nearby cities, and the fact that they settled with Preston at fifty cents on the dollar tends to show that there was not sufficient partnership property to pay the partnership debts.

It is true, as urged by counsel for the plaintiffs, that there is some discrepancy in .the statements made by Thane in his letter to the creditors and in his testimony given in the case at bar. This, however, is but natural. The letter of Henry Thane to the creditors was written in December, 1907, and his deposition in the present case was not given until the 16th day of July, 1920. Thane was a banker and man of many affairs, and it is natural that, after he secured a settlement with the -creditors of Preston & Bonner, he dismissed the details of the matter from his mind.

Mrs. Maud P. Coburn was a witness for herself. According to her testimony, she and W. D. Preston had been left orphans when they were respectively fourteen and fifteen years of age. ’They took charge of a younger brother and sister' and raised them. They continued to reside together until she married. Their relationship after her marriage continued to be very close, and she was familiar with his affairs. Her brother was very much surprised when he found that the firm of Preston <& Bonner was insolvent, upon investigating’ the affairs of the firm after the death of Bonner. Her brother sold the partnership property to her for $5,000, for money with which to settle the partnership debts. The amount paid by her was a fair price for the property which she purchased from him. Subsequently Mrs. Coburn moved to Kentucky, and she permitted her brother to manage the property thus purchased by her until his death, which occurred on the 26th day of September, 1911. She permitted him to use the rents because he was in need' of them, on account of the insolvency of the firm of Preston & Bonner. After the death of her brother, Mrs. Coburn looked after the rents herself.

The fact that the creditors of Preston & Bonner settled their claims at fifty cents on the dollar tends to show that the firm was insolvent. Mrs. Coburn and Henry Thane also testified that the partnership was insolvent. Under these facts it became necessary to sell the partnership real estate to pay the partnership debts. The partnership having been dissolved by the death of Bonner, Preston, as the surviving partner, sold and conveyed the partnership real estate to Mrs. Maud P. Coburn for $5,000, which was a fair price. This sale was for the purpose of paying The partnership debts, and Mrs. Coburn acquired the equitable title of the real estate conveyed to her by Preston, and she had the right to the aid of a court of chancery to compel the heirs at law of H. L. Bonner to convey to her the legal title to the undivided one-half of the lots. This was done by the decree of the chancellor, and it results, from the views we have expressed, that the decree must be affirmed.


text:
    Snow v. Wood.
    Opinion delivered March 24, 1924.
    1. Account — evidence.—Evidence held to establish that one furnishing supplies to another over a period of several years had given due credit for cotton received by him in payment.
    2. Payment — appropriation.—The debtor at the time of making a payment on account has the primary right to direct its application to particular items of the account, upon failure of which the creditor may make application, and, in the event both fail to make application, the law applies the payment to the oldest items of the account.
    3. Payment — application op payments. — The rule that the law applies payments to the oldest items of an account will not be enforced when contrary to the intention of the parties.
    Appeal from Lincoln Chancery Court; John M. Elliott, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    On the 12th day of August, 1921, C. E. Wood sued Jim Snow in the circuit court to recover $3,782.86 alleged to he the balance due on a merchandise account owed him by Snow.
    Jim Snow filed an answer, in. which he denied owing C. E. Wood any amount whatever. He claimed that he had paid his merchandise account with Wood, and that the latter had failed to credit him with certain sums to which he was entitled.
    On motion of the defendant the cause was transferred to the chancery court. The defendant also filed a motion for the appointment of a master, which was granted. The master was directed to audit the account sued on, and, for that purpose, to examine the books of the plaintiff and to take such other testimony as was necessary to establish the correctness of the account.
    C. E. Wood and Jim Snow both testified before the master. The máster reported that, after allowing all proper credits, the defendant was indebted to the plaintiff in the sum of $2,965.39, and that this included a balance brought forward from the 1917 account.
    The defendant filed certain exceptions to the report of the master, which were heard by the court. This testimony will be stated in the opinion.
    The chancellor overruled the defendant’s exceptions to the master’s report, and found that Snow was indebted to Wood in the sum of $2,965.35. It was decreed that the plaintiff recover judgment of the defendant for that amount.
    The defendant has duly prosecuted an appeal to this court.

      Crawford & Hooker, for appellant.
    When an action is brought on an account, the account must be itemized and filed with the comulaint. 132 Ark. 386. The suit was barred by limitations. C. & M. Dig., § 5950. Wher'e a merchant sells ’a planter or farmer, the universal custom is that the account is due and payable at the end of the year in which the goods are furnished. The court will take judicial knowledge of such general customs. 12 Ark. 645: 4 Ark. 302; 1 Greenleaf on Ev„ pp. 63, 64, § 56; 130 Ark. 272; 134 Ark. 273; 141 Ark. 164. Where the statute of limitation is pleaded in an action on account, the burden is on the nlaintiff to show that his action is not barred. 69 Ark. 311; 64 Ai’k. 26: 27 Ark. 343; 53 Ark. 96; 43 Ark. 136. A demand for a balance due upon an account stated is not an open account. 135 Ala. 272, 33 So. 28. The 1917 account is not a part of a mutual open account current, and is not covered by C. & M. Dig., § 6964. See the interpretation of this court in 27 Ark. 343. See also Angel, 138''; 17 Serg. B. 347; 12 Ind. 174: 5 Bos. N. Y. 226: 17 Cal. 344: 30 Cal. 126; 74 Ga. 555; 125 .Ga. 82; 32 Md. 86; 16 Mich. 211. Where an account is not a mutual and open account, the parties cannot make it so by agreement. 136 Mass. 30. The statute of limitation is as binding in equity as at law. 47 Ark. 301; 46 Ark. 25; 43 Ark. 469; 20 Ark. 293; 16 Ark. 129.

      Johnson & Smith, for appellee.
    Where there is a running account between parties, the law will apply payments to the several items of the account in the order of their priority. 57 Ark. 597; 91 Ark. 466. Thus the 1917 and 1918 accounts were paid, and the accounts in suit are for 1919, 1920', and 1921.
   Hart, J.,

(after stating the facts). C. E. Wood was a dealer in general merchandise, and furnished supplies to Jim Snow and his tenants for the years 1917, 1918, 1919, and 1920. The principal exception to the account of the plaintiff by the defendant is that the plaintiff failed to account to him for the price of twenty bales of cotton, which the defendant delivered to him in the fall of 1918. According to the testimony of the defendant, he delivered to the plaintiff forty bales of cotton, and the latter failed to account to him for twenty bales. The books of the plaintiff show a credit to the defendant, by cash, of $3,908.79, in December, 1918. The plaintiff states positively that he accounted to the defendant for all the cotton which the latter delivered to him for the year 1918. He states further that the item of $3,908.79, creditéd as cash, represented cotton which the defendant had sold himself and had paid the proceeds to the plaintiff, on his account. The defendant denies that he sold this cotton and paid the proceeds to the plaintiff to be credited on his account. He admits, however, that he does not know where he got the $3,908.79 which he paid to the plaintiff. The result of the finding of the master and of the' chancellor is that this must have been the proceeds of the cotton which the defendant thinks he delivered to the plaintiff. It is not reasonable to suppose that a man farming only between three and four hundred acres of land would have this amount of money and not know where it came from.

The chancellor found the issues in this respect in favor of the plaintiff, and it cannot he said that his finding is against the preponderance of the evidence.

The next contention of the defendant is that the plaintiff failed to credit him'with two checks, one for $75 and the other for $50.

According to the testimony of the plaintiff, he simply cashed these two checks for the defendant, and they had nothing whatever to do with his account. The defendant denies this, and claims that his account should be credited by the amount of these checks. He admits, however, that he did trade some in cash with the plaintiff, and that "these cash transactions were not included in his-account.

The chancellor found in favor of the plaintiff in regard to these two items, and it cannot be said that his finding is against the weight of the evidence. The account of the defendant for the year 1918 starts with a charge of $1,590.63, which was a balance brought forward from the 1917 account.

It is claimed by the defendant that each year’s account is a separate transaction, and that the balance of the account for the year 1917 was due on the first day of January, 1918. The suit was not commenced until August 12, 1921. Hence it is contended that the balance due on the account for 1917 is barred by the three-years statute of limitations applicable to actions on accounts. We cannot agree with counsel for the defendant. The plaintiff was a dealer in general merchandise, and the defendant traded with him during the years 1917, 1918, 1919, and 1920. The balance due from each year’s account was carried forward into the account for the next year. No demand was made by the defendant for the application of the payments made by him to any particular items of the account. - The rule relating to application of pavments is that the debtor, at the time of making payment, has the primary right to direct the application to any particular item of the account. If he fails to make such application, the creditor has the right to make it. Should the creditor fail to .make it, then the law makes it by applying the payment to the oldest items of the account that are due at the date of the payment. Briggs v. Steele, 91 Ark. 458. In this connection it may be also stated that the rule as to the application of payments to the earlier items of an account is not inflexible, and will not be enforced when contrary to the intention of the parties. Terry v. Klein, 133 Ark. 366.

We do not think, however, that the defendant has shown that the credits were not intended to be applied to the earlier items of the account.

Therefore we do not think that his plea of the statute of limitations should be sustained. The result of our views is that the decree of the chancellor is correct, and should be affirmed. It is so ordered.