text:
    Whittaker v. State.
    Opinion delivered May 9, 1927.
    1. Criminal law — reopening case for re-examination of a witness. — Under Crawford & Moses’ Digest, § 4190, reopening a case for re-examination of witnesses or taking of further testimony after testimony on 'both sides has been concluded and cause has been submitted to jury is matter within discretion of trial court.
    2. Criminal law — discretion as to reopening case. — Under Crawford & Moses’ Digest, § 4190, the Supreme Court will not reverse the ruling of the trial court for the re-examination of a witness or for taking further testimony after case had been submitted to the jury, unless there appears to be an abuse of discretion.
    3. Criminal law — reopening case — abuse of discretion. — The trial court did not abuse its discretion in accepting the statement • communicated to him by a deputy sheriff that a witness denied admission that his testimony in the case was untrue and in refusing defendant’s request to reopen the cause for re-examination of the witness after the cause had been submitted to the jury.
    4. Criminal law — new trial for newly discovered evidence.— Generally, the Supreme Court will not reverse the ruling of the trial court in refusing a new trial on the ground of newly discovered evidence, where such evidence tends merely to impeach the credibility of the witness.
    5. Criminal law — newly discovered evidence — impeachment of witness. — Refusal of a new trial on the ground of newly-discovered evidence tending merely to impeach the credibility of a witness, held proper where the witness did not make an affidavit retracting his testimony at the trial, since the court was warranted in 'finding that he had not altered and would not alter his testimony.
    C. Intoxicating liquor — evidence of sale. — Testimony of a witness to the effect that he and another talked to accused regard- . ing liquor and paid him for some and later went and got the liquor was sufficient to justify a verdict finding the accused guilty of selling intoxicating liquor.
    7. Criminal law — admonition to jury. — Where the record on appeal did not set forth the language of court’s admonition to jury, the Supreme Court will presume that the trial court admonished the jury as required by law.
    8. Criminal law — harmless error. — A criminal cause will not be reversed where a ruling made by the trial court in. defendant’s absence could not possibly have resulted to his prejudice.

      9. Criminal law — admonition to jury in accused’s absence. — The fact that the trial court admonished the jury after separation, while the accused was confined in jail, did not require a reversal of the judgment of conviction.
    Appeal from Logan Circuit Court, Southern District; J. 0. Kmcannon, Judge;
    affirmed.

      John P. Roberts and Evans é Evans, for appellant.

      PL. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

Ray Whittaker was-indicted and put on trial in the Logan Circuit Court for the crime of selling intoxicating liquor. Paul Bean, a witness for the State, among other questions, was asked the following:

“Q. State to the jury whether or not you and Claude Suttles bought some liquor from Ray Whittaker about the 25th of last September? A. I never. Claude came to me and asked me if I wanted some liquor, and I told him I didn’t know. We started up the street, and he stopped and talked to some guys. When we got through, he said, ‘Let’s go up the street,’ and when he had gone a little way he asked me for $1.25, and I gave it to him. Q. Where did you go ? A. Out the highway. Q. How far was it from town? A. About a mile. Q. How much did you buy? A. A pint, I think. Q. Was it in ajar? A. Yes sir. Q. What kind of a jar A. A fruit jar. Q. What was it? A. Whiskey.”

Claude Suttles, a witness for the State, testifies that he and Paul Bean, on September 25, 1926, in Logan County, Arkansas, bought some liquor, but witness could not say they got it from Ray Whittaker. Witness and Paul Bean met in front of Plarp’s Garage, and Paul stated that he would like to have a drink. Witness saw Ray Whittaker, and went over and had a talk with him. Whittaker said he had some, and witness asked him what it was woir-th, and he said $2.50 per quart. “We paid him for it then.” Later on they went out and got it, but witness didn’t see Ray Whittaker any more. Witness and Paul Bean contributed $1.25 each to the purchase of the liquox;. Witness didn’t- remember( whether he or Paul turned the money over to Ray Whittaker. The money was.given Ray before they got the liquor. Witness was asked who had the liquor, and stated, “Paul”; that he had about a quart in a fruit jar. Witness and Paul were together when they gave Ray the money. Witness did not know which one gave him the money. Witness gave him $1.25. Paul did not give witness $1.25 to give Ray, and witness did not know from whom Bean got the liquor. Witness did not get it from Ray Whittaker. Bean said something first about buying the liquor.

The cause was submitted to the jury, under instructions to which the appellant made no objection. The .jury returned a verdict finding the appellant guilty and assessing his punishment at imprisonment in the State Penitentiary for a period of one year. Judgment of sentence was entered in accordance with the verdict, from which is this appeal.

1. The fifth ground of the motion for new trial is as follows: “After the jury retired to consider of their verdict in this case, the State’s witness, Bean, told Elmer Bryant that the testimony of said witness given in this trial was not true; that said witness did not go with the defendant and receive from defendant a quantity of whiskey or other intoxicating liquor, as testified to by said witness on the trial; that this was a frame-up against-the defendant, and that the defendant was not guilty of the charge made against him. Elmer Bryant stated this matter to counsellor defendant while the jury was still out considering of their verdict, and the counsel for defendant immediately reported this fact to the court, and asked the court to reopen the case and permit the defendant to examine said witness Bean with reference to said matter and to introduce in evidence the statement of said witness Bean made to Elmer Bryant. This request was refused by the court, and defendant saved his exceptions. The court erred in refusing this request.”

Learned counsel • for the appellant insist that' the above' assignment of error is well taken, and that the trial court erred in not granting the appellant a new trial for the reasons set forth in the above assignment.

The reopening of a case for the reexamination of a witness, or the taking of further testimony after the testimony on both sides has been concluded and the cause has been submitted to the jury, is a matter, under our statutes and decisions, within the sound discretion of the trial court, and this court will not reverse the ruling of the trial court unless it appears that the court, in making such ruling, has abused its discretion. Section 4190, C. & M. Digest; Teel v. State, 129 Ark. 180, 195 S. W. 32; Smith v. State, 162 Ark. 458, 258 S. W. 349. The record recites that the court, in refusing the request of the appellant to reopen the cause for the reexamination of the witness Bean, stated: “That, while the court had not talked to the witness Bean, the deputy sheriff waiting upon the court had reported to the court that the witness Bean had stated to the deputy sheriff that he (Bean) had mot made the statements to Bryant that had been reported to the court. ’ ’ While it would have been more appropriate for the trial judge to have interrogated the witness Bean to ascertain whether or not he denied that he had made the statement to Bryant as reported to the court, nevertheless the trial judge had the rig’ht to accept as true the statement of the deputy sheriff, who was the sworn officer of the court, to the effect that Bean had denied making the statement attributed to him by Bryant. The court did not abuse its discretion in accepting the statement communicated to° him through the deputy sheriff as a denial of the statement of Bryant to the effect that Bean had stated that his testimony as á witness in the case was untrue. If the court had granted the appellant’s request to reopen the case and to recall the witness Bean for reexamination, and Bean had adhered to his original statement, then nothing would have been gained, but, on the contrary, considerable time would have been lost in an endeavor to impeach witness Bean. If Bean had been recalled and had altered his -testimony, he would have been guilty of perjury. There is. nothing in the record to slxow that, after the taking of the testimony was closed and the case was finally submitted to the jury, witness Bean was still in attendance on the court and that he was therefore readily accessible and could have been called without any considerable delay. As already stated, the deputy sheriff had informed the court that witness Bean denied that he had made the statement to Bryant which Bryant had reported to the court. All these were reasonable and cogent considerations which doubtless influenced the trial court in refusing the request of the appellant to reopen the ease for the reexamination of Bean. In so ruling the court did not abuse its discretion. The assignment of error set up in appellant’s fifth ground of the motion for a new trial is not well taken.

The appellant’s sixth ground of the motion for a new trial was because of- newly discovered evidence, as set forth in the fifth ground. The ground of the motion was supported by the affidavit of Bryant et al. as.to the facts set forth in the fifth ground of the motion for a new trial. The only effect of the newly discovered evidence as set forth in the affidavit of Bryant would be the impeachment of the testimony of the witness Bean. It is the general rule of practice in this court not to reverse the ruling of the trial court in refusing a new trial on the ground of newly discovered evidence -where such evidence tends merely to impeach the credibility of witnesses. McMaster v. State, 163 Ark. 194, 260 S. W. 45; Lewis v. State, 169 Ark. 340, 275 S. W. 663 ; Hayes v. State, 169 Ark 883, 277 S. W. 36; Snetzer v. State, 170 Ark. 175, 279 S. W. 9.

In the cases of Bussey v. State, 69 Ark. 545, 64 S. W. 268, and Meyers v. State, 111 Ark. 399, 163 S. W. 1177, L. R. A. 1915C, 302, Ann. Cas. 1916C, 933, we held that a new trial should be had upon the ground of newly discovered evidence. The prosecuting'witness in those cases, without whose testimony there' could not have been a conviction, made an affidavit retracting the testimony given at the trial. In the case at bar the witness Bean does not make an affidavit retracting his testimony at the trial, and the trial court was warranted in finding that he had not altered and would not alter his testimony. Morever, we canuto concur with counsel for the appellant in the view that the witness Bean was the only -witness in the ease who testified to any facts that would warrant the conviction of the defendant. On the contrary, it occurs to us that the testimony of the -witness Claude Suttles, which we have set out above, was amply sufficient of itself to justif}r the verdict. Canaday v. State, 169 Ark. 221, 275 S. W. 327. Therefore the cases of Bussey v. State and Meyers v. State, supra, cited by appellant, have no application. Likewise, for the same reason, the case of Little v. State, 161 Ark. 245, 255 S. W. 892, does not apply.

2. The jury, not having reached a verdict on their first sitting, after the case was finally submitted to them, were permitted to separate several times under the usual admonition of the court. The record recites the following: “When the court convened on Tuesday morning, the jury in the case was called, and all of them having answered to their names in open court, the court- sent them out to further consider of their duties, and instructed them as to their duty in connection therewith. At this time the defendant was not- present in court, but was confined in jail. Counsel for defendant called the attention of the court to the fact that the jury had been instructed as to their duties and permitted to retire to consider of them while the defendant was in jail and not present in court and the defendant’s counsel saved an exception to the action of the court in instructing the jury as to their duties and sending them out. to consider thereof in the absence of the defendant and while the defendant was in custody in jail.”

The statute provides:

- “The jury, ivhether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit any one to speak to or communicate with them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, or form or express any opinion thereon until the cause is finally submitted to them. This admonition must be given or referred to by the court at each adjournment.”

The record does not set forth the language of the admonition the court gave the jury, and it must be presumed, in the absence of a showing to the contrary, that the court admonished the jury as required by law. The law requires that the defendant be present during the trial. Section 3136 of C. & M. Digest; also see art. 2, § 10, of the Constitution. In Davidson v. State, 108 Ark. 193-197, 158 S. W. 1103, we said: ‘ ‘ The language of the Constitution, ‘to be heard by himself and his counsel,’ is a guarantee that an accused shall have the privilege of being present in person and by counsel whenever any substantive step is taken by the court in his case. Bearden v. State, 44 Ark. 331. Chief Justice Cockriií,, speaking for the court in the case just cited, said: “Under this rule it is not necessary that the accused shall show that he was actually prejudiced by the proceeding had in his absence. It is sufficient to annul the verdict against him if it appears that he may have lost an advantage or been prejudiced by reason of a step taken in his absence. The reason of the rule is to secure to the accused full, facilities for defense. However, while he cannot be deprived of his right to be present at all stages of his trial, it does not follow that he must be. The statute provides that certain proceedings may be had in the absence of a defendant who absconds, or is on bail and absents himself. Where also no prejudice could by any possibility result from the action of the court, there is no reason for requiring the presence of the defendant. ”

It has been the uniform practice of this court to reverse convictions in felony cases where any ruling of the trial court was made during the progress of the trial when a substantive step was being taken, the accused not being present, calculated to prejudice his rights in his absence. In such cases, as stated in Bearden v. State, above, “it is not necessary for the accused to show that he was actually prejudiced by the ruling in his absence.” Some of the earlier eases are Sneed v. State, 5 Ark. 431, 41 Am. Dec. 102; Cole v. State, 10 Ark. 318 (5 English);. Brown v. State, 24 Ark. 620. See also Kinnemer v. State, 66 Ark. 206, 49 S. W. 815; Pearson v. State, 119 Ark. 152, 178 S. W. 914. But we have also uniformly held that a cause will not be reversed where ia ruling is made by the trial court in the absence of the defendant that could not by any possibility result to his prejudice. As is said in Mabry v. State, 50 Ark. 492, 8 S. W. 823 :

“We do not depart from the rule that the probability of prejudice by an order made in the absence of a defend- • ant prosecuted for a felony is all that need be shown to reverse a judgment of conviction, but adhere to its corollary, that we will not reverse for that cause when it is plain the defendant has lost no advantage by his absence.” See also Polk v. State, 45 Ark. 165-168. Assuming, as we must do in the absence of any showing to the contrary, that the trial judge-admonished the jury as the law requires, such admonition could not have resulted in any prejudice to the appellant, but was solely to protect the purity and integrity of the trial, and must have been for appellant’s benefit. The appellant therefore lost no advantage by his absence, and the trial court did not err in so holding.

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


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. H. Rouw Company.
    Opinion delivered May 16, 1927.
    1. CARRIERS — notice .op shipper’s claim. — Under Act of Congress, March 4, 1915, § 1, (U. S. Comp. St. § 8604a), providing- that a common carrier'may not limit the time of giving notice of claims, or filing claims or instituting suits to less than specified periods, and providing further that, if the damage is caused by negligence in transit, no notice of claims or filing of claims shall be required as a condition precedent to recovery, held, where a shipper gave no notice of a claim and filed no claim, but alleged negligence for failure to provide proper refrigeration of an interstate shipment of peaches, the shipper had the burden of showing this negligence as a fact.
    2. Appeal and error — conclusivHness op jury’s finding. — The jury’s finding that the railroad was negligent in failing to refrigerate a oar of peaches properly must be upheld if there is any substantial evidence of negligence.
    3. Carrier — finding op negligence. — In an action by a shipper of peaches against the railroad for a failure to refrigerate a car during transit, evidence held sufficient to sustain a finding that the railroad was negligent.
    4. Trial — province of jury. — The jury are the judges of the credibility of the witnesses and of the weight of the testimony.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      E. T. Miller and Warner, Iiardin & Warner, for appellant.

      G. M. Wofford, for appellee.
   Hart, C. J.

This is an appeal by common carrier to reverse a judgment against it for $100 in favor of a shipper for damage to an interstate shipment of peaches.

The record shows that, on the 28th day of July, 1925, the hi. HoilW Company delivered to the St. Louis-San Francisco Hallway Company at Budy, .Aikansas, a car of peaches consigned to itself at St. Louis, Missouri. On July 29, 1925, before the car of peaches arrived at St. Louis, it was diverted to Fred Brennison & Son, Buffalo, New York. The peaches arrived at their destination and were delivered to the consignee on August 1, 1925. Damage on account of their decayed condition amounted to more than $100.

As a part of its defense the defendant set forth the provisions- of what is commonly called a uniform bill of lading, one provision of which is that claims for loss or damage must be made in writing to the originating or delivering carrier, issuing the bill of lading, within six months after delivery of the property, with the proviso “that, if such loss, damage or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.’’

This provision in the bill of lading was inserted pursuant to an amendment of the Interstate Commerce Act, which, as construed in Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, reads as follows:

“Provided, further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise, a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: provided, however, that if the- loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”

The present suit was not instituted until more than six months after delivery of the property to the carrier, and the plaintiff did not show compliance with the bill of lading requiring written notice of its claim to the carrier. On the other hand, plaintiff relied upon the negligence of the carrier in failing to properly refrigerate the car of peaches as a ground for recovery. In construing this provision, the Supreme Court of the United States has, in effect, held that a claimant must either allege and prove notice as required by the act of Congress and the filing of a claim, or must allege and prove negligence as a fact. Where the plaintiff brings suit under the proviso and alleges negligence on the part of the carrier in transit, the burden of proof is upon him to prove negligence as alleged.

In Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, in the construction of this provision concerning the duty of the carrier to issue receipts or hills of lading for interstate freight and their liability for loss or damage, it was held that, in an action ag’ainst an express company for damages due to delay, the shipper not having given notice and filed a claim as required by the uniform express receipt, must prove that the delay Avas due to the carrier’s carelessness or negligence. In discussing the question, the court said:

“It must be assumed that Congress intended to make the classification on a reasonable basis,, having regard to considerations deemed sufficient to justify exceptions to the rule. The element of carelessness or negligence is important. There are such differences between liability without fault and that resulting from negligence that Congress, upon good reasons, might permit carriers to require notice and filing of claim within the specified times where the carrier is Avithout fault, and forbid such a requirement in the cases' referred to where the loss results from the carrier’s negligence. Notice and filing of claims warns the carrier that there may be need to make investigations Avhich otherwise might not appear to be necessary; and, if notice of claim is given and filing of claim is made Avithin a reasonable time, it serves to enable the carrier to take timelA7- action to discover and presence the evidence on Avhich depends a determination of the merits of the demand. As to claims for damages not due to negligence, in the absence of notice, there may be no reason for anticipating demand or to investigate to determine the fact or extent of liability. But, as to damages resulting from carelessness or negligence, it reasonably may be thought that the carrier has such knowledge of the facts or has such reason to'expect claim for compensation to be made against it, that the carrier should, not be permitted to exact such notice and filing of claim as a condition precedent to recovery. No other basis of classification seems as well supported in reason as the element of carelessness or negligence.”

Again, in C. & O. Ry. Co. v. Thompson Manufacturing Co., 270 U. S. 416, 46 S. Ct. 318, in a precisely analogous case, it was held that the burden of proof is on the shipper to establish negligence within the meaning of the proviso. In that case it was also held that the second or last proviso relieves the shipper from filing notice of his claim, where damage to goods in transit is due to the carrier’s negligence, only when the damage is due to the carrier’s negligence in fact.

In the case at bar the plaintiff brought this action against the railway company to recover damages which it claims to have suffered as a consequence of the negligence of the defendant company and its connecting carriers in transporting for it a carload of peaches from Rudy, Arkansas, to Buffalo, New York. Inasmuch as the plaintiff alleged negligence under the terms of the proviso, it was incumbent upon it to prove negligence as a fact.

In this inspect it is earnestly insisted by counsel for the defendant that there is a total lack of proof. It is true that the evidence adduced for the defendant tended to show that the car of peaches was promptly carried from the point of delivery to its destination, where it was delivered to the consignee, and that the car was kept properly refrigerated during transit and up to the time that it was delivered to the consignee. It does not make any difference that we might believe that the decided preponderance of the evidence was in fa-vor of the defendant on this branch of the case; for, under our settled rules of practice, the verdict must be tested by the evidence for the plaintiff. Therefore, if there is any evidence of a substantial character tending to prove negligence in fact to properly refrigerate the car on the part of the defendant, while the peaches were in transit, it will be our duty to uphold the verdict of the jury.

As we have already seen,, the present suit was instituted by the plaintiff on the ground that the defendant failed to keep the car in which the peaches were shipped properly refrigerated during transit. On this point the plaintiff introduced as a witness an experienced grader, who testified that he graded the car of peaches and supervised the loading of the car in question. He testified that the car contained all No. 1 peaches and that there were no soft ones among them. The peaches .were all sound and firm. He said that he saw the men pack and load the peaches in the car, and that all the peaches that went into the car were good. A salesman for the consignee inspected the peaches as soon as they arrived at their destination, and found the quality of the peaches to be good. A few of the baskets were found broken, and the peaches in them were considerably bruised. This witness had had twenty-five years’ experience in handling peaches, and, basing his opinion upon the condition in which he found the peaches, he would say that the car had not been properly refrigerated during transit. The amount of damage to the peaches was also established by the plaintiff. Accepting the testimony as representing the facts in the case, the jury was warranted in finding that the defendant was negligent in failing to keep the car properly refrigerated during transit. The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony. Hence, when the evidence for the plaintiff is viewed in the light most favorable to it, the jury was warranted in finding as a fact that the defendant was negligent in not keeping the car properly refrigerated during transit. American Railway Express Co. v. H. Rouw Co., 173 Ark. 82; Mo. Pac. Ry. Co. v. Bell, 163 Ark. 284, 259 S. W. 745; C. R. I. & P. Ry. Co. v. Walker, 147 Ark. 102, 227 S. W. 12; and Mo. Pac. Ry. Co. v. Wellborn & Walls, 170 Ark. 469, 280 S. W. 18.

Counsel for the defendant also asks for a reversal of the judgment on account of alleged errors of the court in instructing the jury. We do not deem it necessary to set forth the instructions or to review them. It is sufficient to say that the respective theories of the parties to this lawsuit were correctly submitted to the jury under the principles of law decided in the cases last above cited.

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


text:
    American Railway Express Company v. H. Rouw Company.
    Opinion delivered May 16, 1927.
    1. Commerce — suit against foreign corporation.- — A suit against a foreign corporation lawfully doing business within the State for negligence in failing to refrigerate a car of strawberries ■during transit in an interstate shipment is not an unconstitutional burden on interstate commerce.
    2. Courts — tenue of action against carrier for negligence. — An action for damages for negligence of carrier for failure to refrigerate a car of strawberries during transit in interstate commerce need not be brought where the injury arose, since the cause of action is transitory.
    3. Corporations- — jurisdiction of suits against foreign corporations. — -Courts of this State have jurisdiction over a suit against a foreign corporation which has complied with the law with respect to doing business in the State, brought by a domestic corporation, for negligence in handling an interstate shipment made wholly without the State.
    4. Carriers — interstate shipments — notice of claim. — The fact that an interstate shipper gave no notice of its claim and made no claim of loss under the act of Congress and the Uniform Bills of Lading Act held immaterial where the damages were claimed by reason of negligence in failing to refrigerate a car of strawberries during transit.
    5. CARRIERS — NEGLIGENCE IN SHIPMENT — BURDEN OP PROOF. — Where a shipper gave no notice of its claim to an interstate carrier and made no claim of loss but based its claim for damages for negligence in failing to refrigerate an interstate shipment during transit, it was bound to prove actual negligence, something more than a delivery of the strawberries to the carrier in good condition and its delivery to the consignee in bad condition.
    6. Carriers — sufficiency of evidence of negligence. — In an action ■ of-a shipper of strawberries against a railroad for negligence in failing to refrigerate the car during transit in interstate commerce, evidence held to sustain a finding that the railroad was guilty of negligence. ' ■■,
    7. Appeal and error; — review of evidence. — Where it is a question on appeal whether the evidence was sufficient to sustain the jury’s ■finding that the carrier was negligent in failing to- refrigerate the car of strawberries during transit in interstate commerce, the Supreme Court will view the evidence in the light most favorable to the appellee.
    8. Trial — province of jury. — A jury had a right to disregard as untrue the testimony of the defendant’s witnesses and to accept as true the evidence of the plaintiff.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      A. M. Harfomg and Warner, Hardin & Warner, for appellant.

      C. M. Wofford, for appellee.
   Hart, C. J.

The issues raised by these two eases are the same, and one opinion will suffice. Each case is an appeal by a common carrier from a judgment against it in favor of a shipper for damages for the alleged negligence of the carrier in failing to refrigerate a oar of strawberries during transit in an interstate shipment.

It appears from the record that the car of strawberries in each case was shipped from a point in Louisiana to New York City, and did not, at-any time while en ■route, come into the State of Arkansas. The plaintiff is a domestic corporation organized under the laws of the State of Arkansas, and.is engaged in business at Van Burén, Arkansas. The defendant is a foreign corporation, but lias complied with tlie laws of the State of Arkansas with regard to carrying on its express business in tlie State. It is claimed by counsel for tlie appellant tbat the appeal should be dismissed under these circumstances, because it would be a burden on interstate commerce to require the defendant to answer to a suit in this State. The contention of counsel for the appellant on this point is concluded against.it by the opinion of this court in American Railway Express Company v. H. Rouw Co., 173 Ark. 82, where it was expressly held that an action of this sort may be maintained against a foreign corporation by a resident of this State or by a domestic corporation.

In the case at bar the cause of action was a transitory one, and the court had jurisdiction of the subject-matter of the action. The plaintiff is a domestic corporation carrying on its business in this State and, as such, is subject to suit in the courts of this State at the hands of any one having a cause of action against it. The defendant is a foreign corporation, and has complied with our laws with reference to such corporations doing business in this State. Our courts are open to it, and its property within the State is protected by our laws. Its express business is of necessit}r operated as a unit, and its agents in this State have facilities for investigating claims against it.

Other reasons might be given why the courts of this State should entertain jurisdiction over a foreign corporation in behalf of a domestic corporation for a cause of action arising out of the State, but, inasmuch as no good reason appears to us why the court should refuse to entertain such jurisdiction, we do not deem further comment necessary. Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152, 139 N. E. 223, 32 A. L. R., p. 1, and case-note.

It is next insisted that the judgment should be reversed because plaintiff never gave any notice or made any claim of loss as required by the act of Congress governing actions of tliis sort and the uniform bills of lading issued pursuant to such act. The damages claimed by the plaintiff were for negligence in failing to properly refrigerate the car during transit, and no claim of loss was necessary. It devolved upon the plaintiff to prove actual negligence on the part of the carrier in failing to properly refrigerate the car. of strawberries during transit as one of the facts essential to recovery. American Railway Express Co. v. H. Rouw Co. post.

Because the plaintiff had the burden of proving the carrier’s negligence as one of the facts essential to recovery, it was bound to show something more than a delivery of the strawberries to the carrier in good condition and its delivery to the consignee in bad condition. It is earnestly insisted by counsel for the defendant that no such additional proof was made. The defendant introduced the evidence of various witnesses to show that its car was properly iced at the point of shipment and was kept properly iced during transit and until the car of strawberries was delivered to the consignee. The carriage of the shipment was made in the usual time. We cannot agree with counsel for the defendant that there is not sufficient proof to show actual negligent conduct on the part of the carrier in failing to properly refrigerate the car of berries during transit. The proof on the part of the plaintiff shows that the car of strawberries was inspected by competent inspectors at the time it was delivered to the defendant. The berries were sound and in good condition. They did not show that they had been rained on. In fact, they showed that no rain had fallen upon them. When they were delivered to the consignee they were inspected at once by competent inspectors. Their appearance showed that they had become soft and moldy. Some of the berries had decayed, and their appearance indicated that the decay was due to laclr of refrigeration in transit. One of the witnesses had had twenty-five years’ experience in the shipment of berries, and said that, from his experience and the appearance of the berries, their condition was dne to lack of proper refrigeration during transit. The witnesses were examined at length, but we deem' the above to ¡be the effect which the jury might have drawn from their testimony ás a whole. In testing the legal sufficiency of the evidence to show actual negligence on the part of the carrier in failing to properly refrigerate a car of berries during transit, we must view the evidence in the light most favorable to the plaintiff. The jury had a right to disregard as untrue the testimony of the witnesses for the defendant and accept as true the evidence given in favor of the plaintiff. - We believe that the evidence for the plaintiff, if true, is of such a substantial character as to warrant the jury in finding that the carrier was guilty of actual negligence as alleged in the complaint.

Therefore the judgment in each case will be affirmed.


author: Wood, J.

text:
    St. Louis-San Francisco Railway Company v. Cole.
    Opinion delivered May 16, 1927.
    1. CARRIERS — sufficiency OF EVIDENCE OF NEGLIGENCE. — In an action against the carrier for damages resulting from negligence in an interstate shipment of peaches, evidence held to make an issue for the jury on the ground of the carrier’s negligence in failing to keep the car refrigerated.
    2. Carriers — delay in delivery of shipment. — Although delay in the delivery of peaches after arrival of car was on account of the absence of the bill of lading, the carrier in possession was required to exercise ordinary care to see that they were iced in order to preserve them as far as possible.
    “3. Commerce — conclusiveness of federal decisions. — The law as declared by the United States Court governs in determining the rights and liabilities under an interstate shipment.
    4. Carriers — action for damages — limitation. — Where an action is brought against the delivering carrier for damages within three months after date of an alleged loss,, this is a substantial compliance with a contract requiring claims for loss to be made in writing to the original or delivering carrier within six months after delivery.

      5. CARRIERS — presumption op negligence. — In an action against a carrier for damages resulting from negligence in transporting a shipment of peaches, the shipper made out a prima fade case of negligence by showing that the peaches were received by the carrier in sound condition and were damaged on delivery to the consignee.
    6. Appeal and error. — invited error. — Appellant can not complain of conflicting instructions where the conflict resulted from the court giving instructions requested by appellant.
    7. Appeal and error — harmless error. — Appellant was not prejudiced by the fact that the court erred in placing the burden of proof on appellee.
    ■Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      E. T. Miller and Warner, Ilardin & Warner, for appellant.

      D. H. Howell, for appellee. •
   Wood, J.

This, is action by the plaintiff, Cole, against the defendant railway company to recover damages in the sum of $409.19, which plaintiff alleged he sustained on a carload of peaches shipped by him on July 25,1925, from Highland, Arkansas, via Prescott & Northwestern Railroad Company and Missouri Pacific Railway Company, consigned to the plaintiff at Kansas City, Missouri, and diverted by him to G-eorge Floyd at Ellsworth, Kansas, over the defendant railway. The plaintiff alleged that the injury and damage to the peaches were caused by the negligence of the defendant in not keeping the car properly refrigerated in which the peaches were being transported. The defendant answered, and denied the allegations of negligence, on the part of itself or its connecting carriers, and alleged, by way of affirmative defense, that, if the peaches were damaged, it was caused by the failure on the part of the plaintiff to properly load, brace and pack same. For further defense it was alleged that, under the contract of shipment, claims for loss, damage or injury must he made in writing within six months after delivery of the shipment. That this was a condition precedent for recovery under the contract, and that plaintiff had failed to comply with the same; and, for further defense, that the damage, if any, was caused from inherent defects and infirmities of the peaches.

The plaintiff introduced testimony tending to prove that the peaches were delivered to the Prescott & Northwestern Railway Company at Highland, Arkansas, shipped under the name of Bert Johnson Orchard Company, billed to T. 0. Cole at Kansas City, and diverted from there to George Floyd at Ellsworth, Kansas. The car arrived at its destination over the defendant railway on July 31, about seven o’clock a. m., and was called for by plaintiff about nine o’clock a. m. Cole’s agent handling the car at Ellsworth asked permission of the defendant’s agent at that place to let him unload the ear. The car had been sold to three merchants at $2.50 per bushel delivered. The defendant’s agent refused to let Cole’s agent unload the car, saying that he had to have a bill of lading or a written order from the shipper. Cole’s agent offered to pay the freight, and wired Cole to instruct the defendant’s agent at Ellsworth to release the car. The car was released at six o’clock p. m. on July 31. It was found that the bracing had been shaken loose and 24 baskets of the peaches had been spilled. The top layer and the second layer were moulded, caused from getting warm after being under refrigeration. Plaintiff’s agent sold the car in that condition, after paying the freight, for $360.78. If the peaches had been in good condition they would have brought $1,005. The loss on the car was $409.10. The peaches were properly iced at first, and were damaged because, somewhere along the route, the ice had melted, and the car had not been re-iced. It was shown that the peaches, when delivered to the railroad for shipment, were what is designated as a commercial or standard pack-ones, twos and threes, all in firstclass condition, sound in every respect. On the hill of lading was the following notation: “Delivered only on written order of Patterson Orchard Company, sales agent, without surrender bill of lading. ’ ’

The witness who stated, over the objection of appellant, the condition of the peaches as to decay, and, in his opinion, the canse thereof, had had five years’ experience in handling peaches, and, during that time, had handled 100 cars. When this witness was permitted finally to enter the car at Ellsworth, Kansas, he found about one-half the hunker full of ice. The freight hill was introduced, which showed that the peaches had been consigned to the plaintiff’s agent, George Floyd, at Ellsworth, Kansas, and it had a notation made on the same by the defendant’s delivering agent, as follows: “Car received in very bad condition. Peaches badly molded, braces in car loose at one end. Looked as if some gone. Thirty-six baskets total loss — others badly damaged.”

Plaintiff’s agent was permitted to testify, over the objection of appellant, that he was allowed to enter the car at six p. m. without producing a written order or bill of lading.

There was testimony on behalf of the appellant to the effect that, on July 28, the time the car was turned over to the appellant, appellant’s agent at Kansas City inspected the same and found the temperature to be 45 degrees at the top and 46 degrees at bottom. Peaches firm to ripe, decay two to five per cent., brown rot, fifty to seventy-five per cent, blemishes; 75.to 100 per cent, curculio, or insect stains, and no whiskers. There was also testimony by the defendant tending to prove that the assistant cashier and divergent clerk of the Missouri Pacific Railway, who handled this car at Kansas City, carried.out the orders given by him to divert the car to the Frisco. PTe had had eighteen years’ experience in the railroad service. The bill of lading is a contract of shipment. The original is presented on" the arrival of the goods, and is the authority for delivery. The waybill is made from the bill of lading, and travels with the car, carried by the conductor. On the arrival at destination the way-bill is delivered to the depot agent, and then to the consignee. The depot agent does not receive the bill of lading until the consignee brings it to him.

The court instructed the jury, and we will refer to these instructions later. The. jury returned a verdict in favor of the plaintiff in the sum of $200. Judgment was entered in plaintiff’s favor for that sum, from which is this appeal.

The appellant first contends that there is no evidence to establish negligence on the part of the appellant. We cannot concur in this view of learned counsel for the appellant. The salient features of the evidence hearing on this issue are set forth above. The testimony of the appellant’s own witness, Evers, who inspected the car when it arrived at Kansas City over the Missouri Pacific Railway, between nine and ten o’clock a. m. on July 28, was to the effect that, when he went into the car, the ice bunkers were full of ice; the fruit was firm to ripe. He stated that it contained some blemishes, describing the same, but said that there were no whiskers. The jury might have found that there was no unnecessary or unusual delay in the diversion of the car from the Missouri Pacific Railway to the appellant. The appellant therefore had possession of the car from about 1:40 p. m. on July 28 to about seven a. m. on July 31, a period of something more than two days. The testimony of appel-lee’s agent- to whom the peaches were consigned at Ellsworth, Kansas, and who had had -large experience in handling shipments of this character, was to the effect that, .when he was permitted to enter the car at six o’clock p. m. on the day of its arrival at Ellsworth, he found the peaches badly decayed, and that the peaches were properly iced at first, and that, somewhere along the line, they had not been re-iced, and the ice had melted until there was only half a bunker of ice, which was too low. He further stated that a twelve-hour delay in re-icing the car would have made the condition worse. The testimony was sufficient to warrant the jury in finding that the car was properly iced when appellant received the same at Kansas City and that the appellant neglected to re-ice the same while the car was in its possession, and tliat because of this neglect the peaches were found in a decayed condition when appellee’s agent obtained possession thereof at .Ellsworth, Kansas. Even if it be conceded that there was delay in delivering the peaches to the appellee’s agent after the arrival of the car because of the absence of a bill of lading, nevertheless during this delay the appellant was. still in possession of the peaches and it was its duty to exercise ordinary ca,re to see that they were properly iced in order to preserve them as far as possible. It was a question of fact for the jury under the evidence as to whether or not the appellant was negligent in handling the peaches. It occurs to us that this question was not a matter of presumption, but the affirmative testimony tended to prove that the appellant Avas negligent.

The contract of shipment provides as follows: “Claims for loss, damage or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property, * * *; provided, that if such loss, damage or injury was due to delay or damage Avhile being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim or filing of claim shall be required as a condition precedent to recovery.” The appellant alleged that the plaintiff failed to comply with this provision of the contract and pleaded such failure as a defense to the action.

Among other instructions on this issue, the court at the instance of the appellant told the jury in instruction No. 12. that the burden Avas on the plaintiff: to prove that claim for loss, damage or injury to the peaches was. made in writing to the Prescott & Northwestern Railway Company or the defendant Avithin six months after the delivery of said peaches to the consignee at EllsAVorth, and if the plaintiff failed to prove that such written notice was given, the defendant Avas not liable unless the jury found that it was negligent in failing to ice the car during the time defendant was in possession thereof, and the burden of proving such negligence, if any, by a preponderance of the evidence was on the plaintiff.

The court also instructed the jury on this issue, in instruction No. 5, that the burden was on the plaintiff to prove by a preponderance of the evidence that the peaches were delivered to the initial carrier in good condition and of the kind and quality .susceptible of transportation without damage en route if the transportation was handled without negligence on the part of the carriers, and, if the plaintiff failed to prove this fact by a preponderance of the evidence, the defendant was not liable.

The court also, at the instance of the appellee, in its instructions numbered 2 and 3, in effect told the jury that, if it believed from a preponderance of the evidence that the peaches were in a good, sound condition at the time they were received by the appellant for shipment, and were in a damaged condition at the time they were delivered to the consignee at Ellsworth, Kansas, plaintiff had made out a prima facie case against the defendant, and the burden was on the defendant to show that the damaged condition of the peaches did not result from any negligence on the part of the defendant.

This is an interstate shipment, and the law as declared by the Supreme Court of the United States must govern. In one of its most recent pronouncements upon.the subject the Supreme Court of the United States, among other things, said:

“¥e think that, by the use of the words ‘carelessness or negligence,’ it was intended to relieve the shipper from the* necessity -of making written proof of claim when, and only when, the damage was due to the carrier’s actual negligent conduct, and that by carelessness or 'negligence is meant not a rule of liability without fault, but negligence in fact. * * * There is no language in the statute from which a purpose may be inferred to vary or limit the common-law rules governing proof of negligence as a fact in issue, and the shipper may follow these rules when he seeks to show that no notice of claim was necessary. The respondent therefore had the burden of proving the carrier’s negligence as one of the facts essential to recovery.” C. & O. Ry. Co. v. Thompson Mfg. Co., 270 U. S. 422, 46 S. Ct. 320; Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437; see also Davis v. Roper Lbr. Co., 269 U. S. 158, 46 S. Ct. 28. On the theory that there was no compliance with the contract in regard to the filing of the written claim for loss, damage or injury, as we have already seen, there was positive, affirmative, proof to justify the jury in finding that the ■ appellant was negligent in handling the peaches, and, if that were the only theory, the court would have ruled correctly in granting appellant’s prayers for instructions Nos. 12 and 5, supra.

But, on the other hand, if the requirements of the law and contract in regard to giving notice in writing of claims for loss, damage or injury to property have been complied with, then the court ruled correctly in instructing the jury as it did in granting appellee’s prayers for instructions Nos. 2 and 3, supra. The bill of lading required that the claim for loss or damage or injury to the property must'be made in writing to the delivering carrier or carriers issuing'' this bill of lading within six months after delivery of the property. In St. Louis-San Francisco Ry. Co. v. Keller, 90 Ark. 308, 119 S. W. 254, we said:

“The object of the conditions of this character, it is said, is to enable the carrier, while the occurrence is recent, to better inform himself of what the actual facts occasioning the loss or injury were, and thus protect himself against claims which might he made upon him after such a lapse of time as to frequently make it difficult, if not impossible, for him to ascertain the truth.”

This action was begun by the appellee against the appellant on October 22, 1925. That was within less than three months after the alleged loss and damage to the appellee by the appellant occurred. The appellee’s complaint certainly set forth in writing its claim for the loss and the damage sustained by him with sufficient certainty to precisely advise the appellant of the nature of his claim. The appellant was summoned at once, and therefore notified in a definite way of the claim appellee was making, and, after being thus served with notice of appellee’s action, a period of more than five months intervened before the cause was brought to trial, during which period the appellant had ample opportunity to make all the investigation necessary or that could have been reasonably desired to ascertain the truth connected with the claim and to shape its course with reference thereto. This is all that the provision of the law and the contract under review contemplate.. We hold therefore that the appellee complied with his contract in regard to making the written notice for claim of loss, damage, or injury to his property. Such being the case, it follows that, when appellee introduced evidence to show" delivery of the shipment to the carrier in good condition and its delivery to the consignee in bad condition, the petitioner became subject to the rule applicable to all bailees, that such evidence makes out a prima facie case of negligence. The effect of appellee’s evidence was to make a prima facie case for the jury. See C. & O. Ry. Co. v. Thompson Mfg. Co., supra, pages 422-423, and cases there cited; also the case of H. Rouw v. St. L. S. F. Ry. Co., ante. p. 1, and other Arkansas cases there cited.

Having granted appellee’s prayers for instructions Nos. 2 and 3, to be sure the court should not have granted the appellant’s prayers for instructions Nos. 5 and 12, because the latter prayers were in conflict with the former and made the charge of the court on the burden of proof as to negligence inconsistent and contradictory; however, appellant is not in an attitude to complain of the ruling of the court in granting its prayers for instructions Nos. 5 and 12. Appellee’s prayers for instructions Nos. 2 and 3 were correct, and appellant cannot claim that to be a reversible error which it invited the court to make by granting its prayers Nos. .5 and 12. Appellant certainly was not prejudiced because the court erred in placing the burden to prove negligence on the appellee.

There is no reversible error in the record, and the judgment is therefore affirmed.


author: Smith, J.

text:
    Prouty v. Guaranty Loan & Trust Company.
    Opinion delivered May 16, 1927.
    1. Appeal and error — time for appeal. — Where, after a foreclosure sale and before confirmation, the mortgagor’s grantee intervened and asked to he allowed to redeem, and the court confirmed the sale without allowing the right to redeem, such confirmation must be construed as a final decree overruling the prayer of intervention, and an appeal by the intervener within six months after confirmation but more than six months after foreclosure was within time.
    2. Mortgages — right to redeem from foreclosure. — The grantee of one to whom a mortgagor transferred land held entitled to intervene in a foreclosure suit against the mortgagor, and to redeem from the foreclosure sale.
    3. Mortgages — priority of lien. — One acquiring from a mortgagor notes of a prospective purchaser under a sale contract not acknowledged and recorded held to acquire no lien superior to ■the mortgage, where such purchaser had abandoned his contract of purchase.
    Appeal from Phillips Chancery Court; A. L. Hutch-ins, Chancellor;
    reversed.

      Bevens & Mimdt, for -appellant.

      Moore, Walher & Moore, for appellee.
   Smith, J.

On March 26, 1917, T. J. Jackson conveyed to J. T. Eddins and B. B. Campbell the west half of the northeast quarter of section 1, township 2 south, range 3 east, and certain other lands, for a sum paid in cash and the assumption of payment of a deed of trust from Jackson to the Guaranty Loan & Trust Company securing a loan of $1,200. The lands thus conveyed to Eddins and Campbell were later divided, and Campbell took title to the land above described, and agreed, in consideration of this partition, to satisfy the deed of trust thereon. He was unable to do so, but renewed and increased the loan to $2,000 and, on July 21, 1921, executed a deed of trust on the land to secure a note evidencing that indebtedness.

Suit was commenced February 24, 1925, to foreclose this deed of trust, and a decree of foreclosure was rendered, pursuant to which a sale was made by the clerk of the court, who had been appointed commissioner for that purpose. A report of this sale was duly made, and, pending its confirmation, appellant filed an intervention, in which he alleged that he was a necessary party to the foreclosure proceedings, but had not been advised thereof until he saw the commissioner’s notice of sale.

Intervener alleged the following facts: Prior to the execution of the deed of trust from Campbell to the trust company, the instrument here sought to be foreclosed, Campbell had, on November 2, 1917, entered into a contract with one Spencer Wilson for- the sale of this land, by the terms of which it was agreed that, for a consideration of $3,100 to be paid Campbell, a deed would be executed by Campbell to Wilson. The $3,100 purchase money was evidenced by notes for $500, $600 and $2,000, due, respectively, December 1, 1919, 1920 and 1924, but the contract provided that, until the first and second notes had been fully paid, any and all payments made should be treated as payments of rent, and these notes were delivered to intervener as collateral to a loan made to Campbell by him. On October 1, 1921, Campbell conveyed the land to F. L. Mallory, who, on June 30, 1922, conveyed to intervener.

It was alleged in the intervention that the trust company had taken its deed of trust with notice, both actual and constructive, of the contract of sale between Campbell and Wilson, and it was prayed that the indebtedness there secured be adjudged to constitute a lien prior and superior to that of the. deed of trust from Campbell to the trust company. There was a prayer in the alternative that, if this was not done, the commissioner’s sale be not approved and the intervener he allowed to redeem from the decree of foreclosure by paying the indebtedness there declared to be due’ the trust company.

Upon the filing of the intervention time was given to take, testimony, and testimony was taken, and the clerk.has certified, in the transcript filed in this case, that he has shown all the proceedings had in this behalf. It does not appear that the court made any affirmative robing upon the intervention and the testimony, taken in support thereof, but it does appear that the court approved and confirmed the report of sale and approved the deed of the commissioner to the trust company, it having been the purchaser at the sale.

Upon this state of the record, appellee insists that there is no final decree, except the decree of foreclosure, and an appeal was not perfected within six months of its rendition, and, inasmuch as it does not appear that the court has adjudged the rights of the intervener, it must be conclusively presumed that the intervention was not disposed of and that there was no decree from which he could appeal.

We do not agree with learned counsel in this contention. It was prayed by the intervener that his intervention be treated as an objection to the confirmation of the report of sale and that he be granted the alternative right of redeeming from the commissioner’s sale, and, as the sale -was confirmed contrary to the prayer of the intervention, it must be conclusively presumed that the court overruled the prayer of the intervener, although no express recital of that fact appears in the record. Such, however, is the necessary effect of the court’s action, and we hold therefore that the present appeal was properly taken.

We think intervener, hereinafter referred to. as appellant, had the right to intervene, for, through the conveyance above-mentioned, he acquired CampbelPs right to redeem from the deed of trust from Campbell to the trust company.

It was developed, in tlie testimony taken on the intervention, that the contract of sale between Campbell and Wilson was not acknowledged or recorded. It is insisted, however, that the trust company took its deed of trust subject thereto, for the reason that an abstract of the title had been submitted, which showed that‘Wilson had himself executed a deed of trust to secure a loan to one party and had given tan oil lease to another, thus making it appear that Wilson claimed an interest in the land. The officer of the trust company who examined the abstract admitted that the abstract showed this last-mentioned deed of trust and the oil lease, and that, upon investigation, Campbell told him he had contracted to sell the land to Wilson, but Wilson had abandoned the contract and had removed from the land at the time the trust company’s deed of trust was taken. The undisputed testimony shows that, pursuant to the contract of sale, Wilson moved on the land and made certain improvements thereon, but he left the land in March or April, 1921, and has not at any time asserted any right under his contract of purchase, and 'his present residence appears to be unknown. The land was unoccupied after Wilson abandoned it until about Christmas, 1921, when Campbell put another tenant on it. It thus appears that, while appellant acquired the notes given by Wilson to Campbell as collateral to a loan made by him to Campbell, he acquired no lien on the land superior to that of the deed of trust from Campbell to the trust company. The trust company had the right to assume, inasmuch as Wilson had abandonéd the land, that Wilson had acquiesced in assuming the relation of a mere tenant in possession having an option to purchase, as the contract provided he should be regarded until he made his first and second payments, neither of which were made. Under the contract Wilson would not have become a purchaser in possession until he made the first two payments. Wilson did not make these payments, and, when he defaulted and abandoned the land and refused to pay, he lost his right to purchase, and any payments he may have made were mere payments of rent. The validity of contracts having this effect has been frequently upheld. Nelson v. Forbes, 164 Ark. 460, 261 S. W. 910; Thompson v. Johnston, 78 Ark. 574, 95 S. W. 468; Murphy v. Myar, 95 Ark. 32, 128 S. W. 359, Ann. Cas. 1912A, 573.

The court no doubt found, although that finding is not reflected in the record, that the trust company was an innocent purchaser in taking its deed of trust from Campbell, and that the lien thereof was superior to any rights acquired by appellant in taking title to the notes by an equitable assignment of them from Wilson to Campbell. These notes were delivered to appellant by Campbell without being indorsed by Campbell, but, as appellant had acquired Campbell’s title, he thereby acquired the right to redeem, and this right should have been accorded him. The deeds under which this -right was acquired were of- record when the original suit was filed.

In the case of Dickinson v. Duckworth, 74 Ark. 138, 85 S. W. 82, 4 Ann. Cas. 846, it was said:

“It must be conceded that appellants were necessary parties to the foreclosure suit under which appel-lee Duckworth obtained title, and their rights in the property were not cut off by the sale. Having been omitted from the foreclosure proceedings, what remedy therefore remained to them in the assertion of their rights'? A right merely to redeem from the lien which had been foreclosed, upon the payment of the debt, or the right to require a foreclosure order and a sale thereunder? While there is some conflict in the authorities, we think that, by the decided weight of authority, it is settled that a subsequent lienor, or holder of the equity of redemption, after foreclosure against the original mort-gag’or, can only claim the right to redeem where he has been omitted from the foreclosure suit. (Citing authorities). This rule was adopted by this court in the case of Allen v. Swope, 64 Ark. 576, 44 S. W. 78. ”

Appellant was the owner of the equity of redemption, and, as such, should have been accorded the right' of redemption, and the court erred in confirming tire sale, thereby denying appellant this right.

The decree of the' court below will therefore be reversed, and the cause will be remanded with directions to vacate the order confirming the sale, and appellant will be given a reasonable time within which to redeem from the decree of foreclosure, failing which the court will again confirm the sale.


text:
    Mayhue v. Matthews.
    Opinion delivered May 16, 1927.
    1. Fraud — sufficiency of evidence. — Evidence held to justify submission of the issue of fraud in the sale of oats.
    2. Principal and agent — fraud of agent of disclosed principal.— Though an agent disclosed his principal, he will he liable for fraudulent misrepresentations in the sale of oats.
    3. Venue — transitory action — several defendants. — In an action against principals and agent for alleged fraudulent representations, where service was obtained on the agent in one county, the principals were properly joined and sued in the same county though they were served with process in another county.
    Appeal from Lincoln Circuit Court; T. G. Parham, Judge;
    affirmed.

      Bemberger & Beinberger, for appellant.

      A. J. Johnson,-for appellee.
   Smith, J.

Appellee brought suit in the court of a justice of the peace in Lincoln County against M. and Dan Silbernagel, who were partners doing business as Silbernagel & Company, and against Ambrose Mayhue, their traveling salesman, to recover the sum paid Silber-nagel & Company for fifty sacks of oats. Service of summons was had on Mayhue in Lincoln County, but the members of the firm of Silbernagel & Company were served with process in Jefferson County, in which county they reside and have their place of business.

The Silbernagels filed a motion to quash the service on the ground that they lived in and were served with process in Jefferson County, commanding them to appear and answer a cause of action pending in another county. This motion was overruled, and judgment was rendered by the justice, of the peace in plaintiff’s favor, and an appeal was duly prosecuted to the circuit court, where the motion to quash was renewed and again overruled, and exceptions saved.

Testimony was offered in the circuit court by the plaintiff to the effect that he bought from Mayhue 50 sacks of white oats, whereas there was sold and delivered a lot of oats.which had been bleached and which, when thus treated, were white oats, but were sold as “sulphurized bleached,” that name being stamped upon the sacks containing.them. The testimony was also to the effect that the oats were dark and moldy, and that the stock would not eat them. It was admitted by plaintiff, however, that he knew, when he bought the oats, that Mayhue was merely the agent and was acting for Sil-bernagel & Company, his principals.

Upon this testimony being- offered, the motion to quash the service upon the' ground that plaintiff had contracted with an agent whose principal was disclosed, and the agent was therefore not liable for the damages sued for and was not a proper party thereto, and this being the case there was no authority to maintain the suit against the Silbernagels, who were served in an adjoining county. The motion to quash was again overruled.

The case was submitted to the jury under instructions which required a finding, before returning a verdict for the plaintiff, that Mayhue had intentionally misrepresented to plaintiff the kind and quality of oats sold and that Matthews had relied upon these false representations.

The testimony was sufficient to warrant the submission of this issue, and the verdict returned in plaintiff’s favor reflects the essential finding’ that Mayhue had fraudulently procured the contract, of sale, and, this being true, he was liable, although he had acted only as agent and had disclosed the name of his principal. Cleveland v. Biggers, 163 Ark. 377, 260 S. W. 432.

Mayhue was properly sned and served with process in Lincoln County, and, this being true, the right existed to sue the Silbernagels there also, although they were served with process in another county. Hoyt v. Ross, 144 Ark. 473, 222 S. W. 705.

Under the allegations of the complaint, plaintiff was entitled to judgment against both the agent and his principals, and the testimony sufficiently supports these allegations to sustain the verdict of the jury.

The testimony on behalf of plaintiff tends to show that the oats delivered were not the oats purchased, and were valueless, as the stock would not eat them, and there was an offer to return them as soon as their character was discovered, which was within a few days after their delivery, and that this offer was declined.

There appears to be no error, so the judgment is affirmed. •


text:
    Clark v. Friend.
    Opinion delivered May 16, 1927.
    1. Homestead — abandonment by widow. — Where a widow removes from the homestead, she thereby abandons her homestead rights, affording ground for re-entry by the holder of the title in remainder.
    2. Limitation of actions — abandonment of homestead. — Where a widow abandoned her homestead, its subsequent occupancy by an adverse claimant created a right of re-entry by the holder of title in remainder so as to start the statute of limitation against both the widow and an heir not under disability.
    3. Limitation of actions. — A widow’s unassigned dower right will not bar right of re-entry by heirs so as to prevent the statute of limitation from running in favor of an adverse occupant.
    4. Deeds — consideration. — The cancellation of a mortgage and satisfaction of a debt which it secured is sufficient consideration for a deed by the mortgagor to the mortgagee.
    5. COMPROMISE AND SETTLEMENT — conolusiveness. — Where there was a mutual settlement between a mortgagor and mortgagee in which the latter obtained the land, the heirs of the mortgagor can not question the 'validity of such settlement.
    6. Quieting titled-laches. — A suit to establish title to land is barred by laches where it was not brought until after all parties to the mortgage under which defendants claim were dead, the debt itself was barred, and 'large sums of money had been expended and oil discovered on the land, which otherwise was of little value.
    7. Quieting title — laches. — A court of equity may, in the exercise of its inherent powers, refuse .relief where it is sought after undue and unexplained delay and where injustice would result in the particular case by granting the relief asked.
    Appeal from Union Chancery Court, First Division; J. T. Stevens, Chancellor;
    affirmed.

      Coleman & Gantt, J. Bernhardt and U. J. Cone, for appellant.

      Mahony, Yocum & Saye, for appellee.
   Smith, J.

In September, 1923, W. S. Biles, trustee, instituted suit in the Union Chancery Court against A. W. Friend and his lessee, the Pure Oil Company, to establish title to the southwest quarter of the southeast quarter of section 6, township 16 south, range 15 west, claiming title by sundry conveyances from the alleged collateral heirs of one Charlie Wilson, deceased. Defendants claimed title under an alleged deed from Charlie Wilson to J. M. Young, or under a foreclosure of a mortgage from Wilson to Young, who conveyed to Friend, the lessor of the Pure Oil Company. Defendants also claimed title by adverse possession and under a sale for the nonpayment of the taxes for the year 1917, and that plaintiff’s cause of action is barred by lachés. Various-parties intervened claiming as and under alleged collateraUheirs of Charlie Wilson and his widow, Lizzie Wilson.

O. W. Clark, trustee, intervened and claimed title under a warranty deed from Fannie Watt,’who, it is alleged, is the granddaughter and sole heir at law of Charlie Wilsori, who is the common source of title of all claimants.

The decree of the court below was in favor of Friend and his lessee upon the finding that the cause of action was barred by limitations and laches, and from this decree Clark, trustee, has appealed. It will be unnecessary to set out the claims of the other parties, as this appeal concerns only the respective claims of 'Friend and his lessee and Clark, trustee.

Charlie Wilson owned, at the time of his death, an adjoining forty-acre tract of land, described as the southeast quarter of the southwest quarter of section 6, township 16 south, range 15 west, which the witnesses refer to as the west forty in contradistinction to the forty acres involved in this litigation, which is called the east forty. We will employ the same designations. Both tracts are now very valuable, as there are .a number of producing oil wells on each. The west forty was the subject of the litigation in the case of Wilson v. Biles, 171 Ark. 912. Much of the history of Charlie Wilson and his heirs is set out in the former opinion, but the decision in that case has no bearing on the decision in the present appeal.

In taking testimony in the present case the fact was developed that Charlie Wilson had a granddaughter, who, if alive and found, would inherit to the exclusion of the collateral heirs. After an extended search Fannie Watt, the alleged heir, was found, and Clark, as trustee, procured a deed from her, and, by an intervention which he filed, the title thus acquired was set up. in opposition to that of all other claimants.

Fannie Watt is not a party to this litigation, but during its progress an attorney representing, her filed a pleading, which 'was denominated “suggestion to the court, ’ ’ -in which she alleged that she had brought suit in the Federal court against her grantee, alleging that the deed from her was void as having been obtained by fraud. The court found that Fannie Watt had declined to become a party to the litigation, and had not been made a party and had filed no pleading whatever making her a party, and the cause was disposed of without attempting to adjudge the merits of her “suggestion” that the deed from her had been fraudulently obtained.

It is claimed by appellant that Fannie Watt is the grandchild of Charlie Wilson, and many -witnesses testified as to her identity and her relationship to Charlie Wilson. We do not set out this testimony, because we have concluded .that, even though it he conceded that the testimony has established her identity as the granddaughter and sole heir at law of Charlie Wilson, and that her deed is valid, her grantee is not entitled to recover in this action.

The testimony establishes the fact that Charlie Wilson lived on the east forty and cultivated portions of both tracts, and continued to reside on the east forty until his death, which occurred in 1910. Neither forty possessed any great value at that time, and the east forty sold for $10 per acre as late as 1920.

It is very clearly established that Charlie Wilson and his wife executed a deed of trust to Young & Anderson, who were merchants doing a farm-furnishing business, to secure an indebtedness incurred for advances. It is not clear whether the deed of trust covered both forties, but it is certain that the east forty was embraced in the deed of trust. It is also clearly established that Young, who appears to be the surviving member of the firm of Young & Anderson, took possession of the east forty as early as 1909, -which is the year preceding the death of Charlie Wilson. It is not clear under what authority this possession was taken. The answer alleged that possession was taken under a deed from Wilson to Young, but the testimony makes it much more probable that the possession is referable to a foreclosure of the deed of trust, or a satisfaction thereof, whereby the east forty was conveyed to Young.

The execution of the deed of trust is established by the testimony of the justice of the peace who took the acknowledgments, and the proof of statements made by both Wilson and his wife in regard thereto. It was shown that the land was advertised for sale by the trustee in the deed of trust, but it was not shown that the land was ever ap.praised or that the trustee ever sold it. The parties Avho could have cleared up these uncertainties died before the institution of this litigation. Wilson and his wife are dead, and so also are Young, the surviving member of the firm of Young & Anderson, and the trustee who advertised the land for sale.. Young kept his papers in his store, and these were all lost when the store was destroyed by fire. The deed of trust had never been recorded.

A number of persons who lived near the land and who knew .Charlie Wilson and his wife testified that both Wilson and his wife had told them that they had satisfied the deed of trust by letting Young have the east forty, and that this tract had become known as the Young land in Wilson’s lifetime, and that Young was in possession thereof by tenant for at least a year before Wilson died, although Wilson did not move from the house in which he lived, which was on the east forty. It does not appear by. Avhat arrangement Wilson retained possession of this house until his death, but it does appear that, after Wilson’s death, his widow changed her residence to the west forty and resided there until her death, which occurred in 1922, and that she said to a number of persons that Young owned the east forty, having taken title thereto in satisfaction of the deed of trust. But, whether under a deed from Wilson and his wife or under a foreclosure sale and a trustee’s deed, or a parol settlement and satisfaction of the deed of trust, the fact is established that, in some manner, Young took actual possession of the east forty during Wilson’s lifetime and remained in possession of it by tenant until 1920, Avhen he sold it to Friend, trustee, for $400. It Avas also shown that Young’s possession was not that of a mortgagee in possession, but that of an OAvner claiming title thereto, and that this title was recognized”by both Wilson and his wife.

As Ave have said, the court found that the cause of action was barred both by the adverse possession of Young for a period of more than seven years and by laches in bringing the suit. It is insisted that Fannie Watt is not barred by laches, because it appears that, after she had been located, she immediately. consulted an attorney in regard to enforcing her rights and that her grantee at once intervened and set np in this litiga.tion the title -which had been acquired from her.

It isdnsisted that the plea of limitations cannot be sustained, for the reason that Lizzie Wilson was in possession of the land as her homestead until her death in 1922, and that Fannie Watt, as heir at law, could not have sued to recover the land until the termination of the homestead right of the widow, and this suit.was, in fact, begun in 1923, and the intervention setting up her claim of title was filed May 25,1925.

It is the contention of appellee (and the finding of the court sustains the contention) that Wilson and his wife in some manner conveyed the east forty to Young, and, while Wilson did not remove from this forty, he occupied only a house on it, the land being cultivated during Wilson’s lifetime by the tenant of Young. It is not shown under what arrangement Wilson occupied the house if he had in fact conveyed the land, but, after Wilson’s death, his widow removed to the west forty and lived there until her death. An adverse occupant and claimant was thus in possession of the east forty from which she removed. This was clearly an abandonment of the homestead right, if it then existed, in the east forty. It is settled law that the abandonment of the homestead right affords grounds for re-entry by the holder of the title in remainder. Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; Garibaldi v. Jones, 48 Ark. 230, 2 S. W. 844; Warren v. Martin, 168 Ark. 682, 272 S. W. 367; Brinkley v. Taylor, 111 Ark. 309, 163 S. W. 521; Fletcher v. Joseph, 105 Ark. 646, 152 S. W. 293; Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Killiam v. Carter, 65 Ark. 68, 44 S. W. 1032; Barnett v. Meacham, 62 Ark. 313, 35 S. W. 533.

It is true, if the title to the east forty had not in some manner been conveyed to and acquired by Young, the widow had an unassigned dower right therein; but this did not bar the right of entry of the heirs so as to prevent the statute of limitations from running. Murphy v. Graves, supra; Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Fletcher v. Josephs, 105 Ark. 646, 152 S. W. 293.

The widow of Charlie Wilson did not remarry, and. she was not at any time after his death undet-' the disability of coverture, and it is not claimed that the granddaughter was under the disability of either infancy or coverture, and there was therefore no reason why the statute of limitations did not run against both the widow and the heir. Indeed, the statute of limitations may have commenced running against Charlie Wilson himself if there was in fact no grant from him.

It is not claimed that there was any consideration for the grant except the cancellation of the mortgage and the satisfaction of the debt which it secured; hut this was a sufficient consideration for a deed. Todd v. Grayson, 168 Ark. 446, 270 S. W. 595. And if there was a mutual settlement of the matter, the heirs of Wilson cannot question the validity of the settlement. Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30.

There may have been no deed from Wilson to Young; there may have been no foreclosure of the deed of trust; but there was a contract of some kind whereby Young was put in possession of the east forty and was allowed to remain without question by the widow, who resided on the adjoining forty, or by the heir, whose whereabouts and residence was unknown. The suit was not begun until 1923, at which time all the parties to the deed of trust — the grantor and his wife, the beneficiary and the trustee — were all dead. The debt secured by the deed of trust was long since barred. Large sums of money had been expended in developing oil before any one attempted to assert any rights through or under Fannie Watt. True, she knew nothing of the discovery of the oil, but that fact proves only her indifference 'to her grandfather and to her inheritance. She, no doubt, would have continued inert and indifferent but for the discovery of oil, which resulted from the expenditure of the large sum of money -always involved in such explorations and tlie diligence of appellant in searching her out.

We said, in the case of Avera v. Banks, 168 Ark. 718, 271 S. W. 970:

“There is no hard and fast rule as to what constitutes laches. It is well settled that a court of equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and where injustice would he done in the particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of .justice or injustice in taking the one course or the other in so far as it relates to the remedy. (Citing cases).”

The doctrine there announced is applicable here, and, after a careful consideration of the testimony, aided by the excellent briefs of counsel, we have concluded that the decree of the court below is correct, and should br> affirmed, and it is so ordered. '


author: Humphreys, J.

text:
    Empire Petroleum Company v. Southern Pipe Line Company.
    Opinion delivered May 16, 1927.
    Vendor and purchaser — agreement to pay taxes for “current year.” — A vendor’s agreement to pay a pro rata part of the taxes for the “current year” held to refer to the calendar year and not to the fiscal or tax year.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      J. W. Finley, Hayes McCoy and Warren T. Spies. for appellant.

      Mahony, Yocum & Saye, for appellee.
   Humphreys, J.

Appellee, successor to the Crusader Pipe Line. Company, brought suit against appellants in ike Second Division of tlio circuit court of Union County to recover $2,289.88 alleged to be due it under written contract for tlie taxes of 1924 on personal and real property in Ouachita County, Arkansas, which it agreed to purchase from appellants on August 28, 1924, and which was turned over to it the first of September following. The third paragraph of the contract, which was set out and made a part of the complaint, is as follows:

“Third. With reference to the taxes on all property which we are selling you, being both oil of the Empire Petroleum Company and real estate and personal property of the Empire Pipe Line Company. We agree that we will pay our pro-rata part' of this year’s taxes, i. e., when these taxes are due, about January 1, 1925, you will pay same and bill us for our portion according to the pro-rata part of the current year during which this property'was in our possession. The date from which this reckoning shall be made will be the date on which the property in question is actually turned over to you.” -

It was alleged in the complaint that the taxes upon the property amounted to $3,431.31, and that, after proper demand, appellants refused to reimburse appel-lee for two-thirds of said taxes.

Appellants filed a demurrer to the complaint, which was overruled by the court, whereupon they declined to plead further, and judgment was rendered against them for the amount claimed, from which is this appeal.

The demurrer was overruled and the judgment rendered upon the theory that the phrase “current year” used in the contract had reference to the calendar year 1924, and, as the property was delivered on September 1 of that year, appellants owed appellee two-thirds of the amount paid in 1925 for the taxes of 1924.

Appellants contend for a reversal of the judgment upon the ground that the term “current year” in the. contract had reference to the “fiscal” or “tax year,” during which the.1924 taxes were'to be expended to cover the cost of Government. We do not think the “tax year” in Arkansas is the criterion or key by which the third paragraph in the contract is to be construed. The taxes which were to become due on January 1,1925, were the taxes about which the parties were contracting’ and the pro-rata part of which each was to pay; The contract specifies in unambiguous language that the proportionate part of the year’s taxes which each must pay shall he determined by the pro-rata part of the current year during which the property was in their respective possessions, meaning, of course, the pro-rata part of the year in which the contract was made. The word “current” is defined in Webster’s Dictionary, in part, as follows: “Now passing, as time, or pertaining to the present time, as the current month; the current number of a periodical.” Appellants had the possession of the property from January 1, 1924, until September 1 of the same year, and appellee had possession thereof from September 1 to December 31 of the same year, so it follows that the court was correct in adjudging that appellants should pay two-thirds of the taxes.

No error appearing, the judgment is affirmed.


author: Humphkeys, J.

text:
    Twist v. Roane.
    Opinion delivered May 16, 1927.
    1. Judgment — RES JUDICATA. — Recovery against a contractor by the defendant for materials furnished for the house of a third person is not barred under the doctrine of res judicata because in a former suit by the contractor against defendants on account of constructing a house for defendants, they filed a counterclaim for value of such materials, which was withdrawn before judgment; such counterclaim being based on a different transaction.
    2. Mechanics’ liens — lien of materialman. — One who buys materials on his own account and furnishes them to a contractor to build a house for another, even if delivered by the original seller to the contractor at his request from time to time, is entitled to a materialman’s lien under the statute, and is not a mere guarantor of account.
    3. Mechanics’ liens — time of filing lien. — Although materials purchased by a contractor were ordered and shipped at different times, where they were purchased under an open and running account, the date of the last item purchased fixed the time within which the lien should be filed.
    4. Sales — agreement to pay cash — reasonable profit. — Under an agreement to furnish a contractor materials at cost for cash, the materialman was entitled to add 15 per cent, as a reasonable profit when the contractor failed to pay cash.
    Appeal from Cross Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      T. E. Lines, for appellant.

      Ogcm &• Shaver, for appellee..
   Humphkeys, J.

Appellants brought suit against appellees for $790.23, the value of materials alleged to have been furnished by them and' used in the construction of a residence for M. R. Owen and Bessie Owen, on lot 1 and a part of lot 2, Eldridge - Court, in the city of Wynne, and to establish and foreclose a materialman’s lien on said property to pay same.

The following defenses were interposed to the suit:

First, that the amount sued for was fully adjudicated in a suit in the circuit court of Cross County between J. W. Roane and appellants herein. Second, that materials were not purchased from the appellants herein, but were purchased from the Cole Manufacturing Company of Memphis, Tennessee, and guaranteed by appellants. herein. Third, that the purchases were made directly from the Cole Manufacturing Company in three separate and distinct contracts, and that the material-man’s lien was not filed within the time required by law.

The cause was submitted to the court upon the pleadings and testimony, which resulted iu a decree dismissing appellants’ complaint, and the cause is before, us on appeal for trial ele novo.

Appellants were farmers operating a plantation store on their farm at Twist in said county. M. R. Owen and Bessie Owen owned and resided on the lots in question in. Wynne,-and J. W. Roane was the contractor and carpenter who built the residence for them. Pie entered into a contract with appellants to build them a house on tlieir plantation at the same time he contracted with Owen to construct his residence. Appellants were- lumber dealers in another State, and were in a position to buy materials from the Cole Manufacturing Company in Memphis at dealers’ prices, so it was agreed between appellants and J. W. Roane that they would buy a part of the materials for constructing both houses on their own account. J. W. Roane furnished the estimates for the materials which they were to purchase for each house to Clarence Twist, one of the appellants, who went to Memphis and arranged for .the purchase thereof. Three orders were sent in to the Cole Manufacturing Company for the materials used in the construction of the Owen residence. The first order was for doors, windows and similar stuff, amounting to about $450; the second consisted of three or four windows, and the third for a stairway. The second and third orders were made by the contractor, J. W. Roane, without the consent or knowledge of appellants, who canceled the orders as soon as they received notice that they had been made. At the solicitation of J. W. Roane, who promised to bring a check over right away to cover the cost thereof, they reinstated the order. J. W. Roane did not take them the check as he promised. All of the material which was purchased from the Cole Manufacturing Company was used in the construction of both houses and was charged to appellants and paid by them. The small order for windows was shipped last and received by J. W. Roane on March 1, 1923. J. W. Roane admitted that all of the items charged on appellants’ account against him and M. R. Owen and Bessie Owen, made the basis of lien filed and this suit, were used in the construction of the Owen house. ’ M. R. Owen testified that he moved into the house on March 1, 1923, and that all of the windows and. doors were in at that time. In other words, he testified that the house was completed when he moved into it. He did not testify what hour he moved in on the first of March, so it was possible for the contractor to have placed the windows in the house on the morning of March 1 before Owen occupied it. The small hill of windows was the last item charged on the account as of date February 27, 1923. The lien was filed on May 9, 1923, at 10 o’clock a. m.

(1). The defense of res judicata is not sustained by the evidence. It is true that, in the suit brought by J. W. Roane against Twist Brothers on account for constructing their home, Twist Brothers filed a counterclaim embracing the items of material furnished by them to Roane to build the Owen house, but, according to the face of the judgment rendered in that case, the counterclaim was withdrawn and the items, totaling $790.23, were stricken from the complaint and not submitted and considered. The judgment recites: “This cause coming on to be keard this 13th day of November, 1923, J. W. Roane appeared by his attorney, S. W. Ogan, and defendants by attorneys T. E. Lines and T. H. Caraway. The counterclaim of Twist Brothers for $790.23-is withdrawn, and said item is stricken from the complaint and not submitted. The remainder of the complaint and counterclaim of Clarence Twist for $431.95 went to trial, and, a jury being called, J. E. Hargis and eleven others of the regular panel, who returned into open court the following verdict: ‘We, the jury, find for the plaintiff for the sum of $100. J. E. Hargis, foreman.’

“Wherefore it is by the court considered, ordered and adjudged that the counterclaim of Twist Brothers for $790.23 be and the same is hereby withdrawn, and the same is stricken from the complaint and not considered herein, and that the plaintiff, J. W. Roane, do have and recover of and from Ira P. Twist, Clarence Twist and John F. Twist, as Twist Brothers, the sum of $100 ($100) and all costs herein expended.”

We do not think that Twist Brothers were compelled to present their claim against J. W. Roane in that suit, as it did not pertain to their contract with him for building their own house. Tt was a separate and distinct contract, and the subject of separate suits. Had it been a matter growing out of and embraced in a single contract, they could not have split the action and made two out of it. They had two contracts with J. W. Roane, one to build a house for themselves and another'to furnish him certain materials with which to construct a house for the Owens. The maintenance of the two suits was not therefore a splitting of a single cause of action.

(2). We think one who buys materials on his own account and furnishes them to a contractor to build a house for another, even if delivered by the original vendor directly to the contractor at his request, from time to time, is entitled to a materialman’s lien under the statute, and is in no sense a mere guarantor of the account. The record reflects that Twist Brothers purchased materials amounting to $790.23 on their own account to be used by J. W. Roane in the construction of the Owen residence, and that they paid the account to Cole Manufacturing Company when requested to do so. J. W. Roane had nothing to do with the purchase of the materials from Cole Manufacturing Company further than to send in the order in Twist Brothers’ name, as he needed said materials in the construction of Owen’s house. The materials were not charged to Roane or Owen by the Cole Manufacturing Company or paid for by either of them. The long and short of it was that Twist Brothers purchased the materials outright from Cole Manufacturing Company and furnished them to Roane, as contractor, to be used in the construction of Owen’s house.

(3). The record does not reflect that the materials were purchased under three separate contracts. The fact that they were ordered and shipped at different times does not establish that each lot was purchased under separate contract and not on an open and running account. As we read the record, the materials were ordered to be shipped at different times, but bought on open account and credit of Twist Brothers. It is true that Twist Brothers canceled the second and third order because the contractor was getting behind with them on the contract to build their own house, but, on his promise to bring them a check, they reinstated tbe order. Even if the materials bad been purchased on separate contracts from Cole Manufacturing Company, they were furnished by Twist Brothers to the contractor on open account on a single contract to furnish materials for the construction of the Owen residence at original cost for cash. We think the decided weight of the evidence shows that the items of the account dated February 27, 1923, and delivered to the contractor on March 1, following, were used in completing the Owen residence. The offer was made to appoint an efficient man to view the house and ascertain whether the windows which were last shipped had been placed therein, and he refused to allow the inspection.This is a very strong circumstance tending to corroborate the reiterated statement of J. W. Roane that the items charged on the account were used in the construction of the house. Treating these items as the last, materials furnished on open account on a single contract, the lien was filed within the time allowed by law.

The account includes a profit over the cost price of .15 per cent. The agreement was that the material should be furnished at cost for cash, so, when the contractor failed to pay cash, we think it allowable and justifiable for appellants to add a reasonable profit, and we do not think the added amount is unreasonable.

On account of the error indicated the decree is' reversed, with directions to enter judgment for the amount claimed and to declare and foreclose a lien against said lots to pay same.