author: Hart, J.,

text:
    Swaim v. Martin.
    Opinion delivered April 30, 1923.
    1. Attorney and client — business transactions — burden of proof. — As the relation of attorney and client is one of trust and confidence requiring a high degree of fidelity and good faith, the ¡burden is on the attorney of proving the fairness and equity of the transaction and the adequacy of the 'consideration, and, upon his failure to make such proof, a court of equity will treat the case as one of constructive fraud.
    2. Attorney and client — business transactions — burden of PROOF. — The rule that an attorney who contracts with his client has the burden of proving that no advantage has been taken of the situation of the latter is not restricted to contracts or dealings with respect to the rights or property in controversy in the particular proceeding in which the attorney is acting for the client, but it may extend to other transactions and contracts where the relationship may be presumed to give the attorney some advantage over the client.
    3. Tender — when no defense. — Where, after a suit to vacate a conveyance from a client to his attorney was brought, the plaintiff dismissed the suit in consideration of the execution by defendant of a check, which was not paid, a subsequent tender of the amount by the defendant was unavailing as a defense.
    Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    C. W. Martin and Ruby Martha Martin, his wife, brought this suit in equity against W. D. Swaim and H. W. Anderson to set aside a deed which had been made by the plaintiffs to the defendants in consideration of legal services rendered by W. D. Swaim.
    It appears from the record that C. W. Martin invented a device known as moving grocery, and on or about March 1, 1920, he employed W. D. Swaim, an attorney, to assist him in procuring a patent upon his device. An attorney in Washington was also employed, who, after some correspondence between the parities,, secured the patent. Swaim carried on the correspondence in behalf of Martin. The latter paid Swaim on different occasions the sum required to procure an attorney to obtain the patent, and Swaim paid all of this money to the patent attorney at Washington. A corporation was organized on February 9, 1921, to be known as the Little Rock Gro-See-0 Company, for the purpose of operating trucks or moving groceries under the Martin patent. Swaim.attended to the legal end of organizing the corporation, and received in consideration therefor stock in the corporation in the amount of $250. The corporation was capitalized for $100,000. A Mr. Hoffman and Martin put in one truck and one store for $5,000 in stock. They were allowed an additional $3,500 in stock for the city rights in the patent to Pulaski County and the cities thereof. Mr. Swaim was one of the directors.
    The company did not make a success financially, and its creditors began to threaten suit. Swaim, acting’ for the corporation, had sold $1,000 in stock to C. W. Clement and had taken his note therefor. $3,000 in stock had been sold to E. B. Plummer, and Plummer had given to Martin a deed to six lots in Carlisle, Ark., valued at $4,500, upon which there was a mortgage for $1,500. On the 29th day of June, 1921, C. W. Martin and his wife executed a deed to these lots to W. D. Swaim for a consideration of $4,500, and it was provided in the deed that Swaim should assume the mortgage indebtedness of $1,500 on the propert}7;.
    C. W. Martin admitted that he executed an instrument in writing in favor of W. D. Swaim, but says that he did not know that the instrument in question was a deed, but supposed it to be a mortgage on the property, which would be used by Swaim in securing the creditors of the corporation. According to the testimony of Martin, he was greatly interested in the success of the corporation, and executed the mortgage on the lots in question to Swaim in order to secure its creditors and to prevent them from suing and otherwise embarrassing the corporation. According to his testimony, Swaim represented to him that tjiis would be the effect of the instrument which he was asked to execute, and, on account of the fact that Swaim had been his legal adviser throughout the whole proceedings, he had unlimited confidence in him, and signed the instrument in question without examining it. Subsequently he ascertained that the instrument in question was a warranty deed executed to Swaim absolutely, and that it in no manner protected the corporation from its creditors. When Martin ascertained this to be the effect of the instrument, he demanded its return from Swaim. Swaim refused to return it; hence this lawsuit..
    According to the testimony of W. D. Swaim, the deed was intended by the parties to be an absolute deed, and it was given to him by Martin in payment for legal services performed in securing the patent to the moving grocery and in organizing and acting as attorney for a corporation to operate said patent in the city of Little Rock. Swaim carried on all the correspondence with the patent attorney at Washington, and paid him all of the fees that Martin paid to him for securing the patent. Swaim drew up the articles of incorporation for the moving grocery concern, and was given $250 of paid-up stock for his services in that behalf.
    In the latter part of June, 1921, Swaim and other directors indorsed the corporation’s note for $2,000. They did this because the corporation had become financially embarrassed, and the board of directors could not, or would not, do anything towards the satisfaction of its creditors. C. W. Clement had purchased $1,000 worth of stock in the corporation, and had given his notes for it. He soon became dissatisfied, and demanded his notes back. Martin told Swaim that Clement was his grocery-man, and that if he would give him back his notes he would deed him his Carlisle property. The Carlisle property was subsequently conveyed to Swaim in consideration of his returning to Clement his notes for $1,000 and for other legal services that he performed for the moving grocery corporation.

      Martin, on the other hand, was equally positive that he was conveying the property to Swaim in trust to be used in protecting the corporation against its creditors. Other facts will be stated in the opinion.
    The chancellor found that, as between Martin and Swaim, the deed of the former to the latter to the Car-lisle property should be set aside, but also found that Anderson was a bona fide purchaser, for value, of the property. Hence it was decreed that Martin should have a judgment against Swaim for $2,000, which was found to be the value of the property in suit, less the $1,500 mortgage on it, and certain personal property which had been paid by Anderson to Swaim for the purchase price of the property, and which bad been impounded in the chancery court, was ordered sold and the proceeds to be applied towards the payment of the $2,000.
    The defendant Swaim has duly prosecuted an appeal to this court.

      Wallace Townsend, for appellant.
    The decree is contrary to .the evidence and in disregard of the settlement by the parties of the whole matter. The deed to appellant was duly made for an adequate consideration rendered, and there was no fraud in its procurement. 4 Ark. 302; Holt v. Moore, 37 Ark. 145. No fraud was proved, and the chancellor’s findings are clearly against the preponderance of the testimony, and should be set aside. 31 Ark. 85; 102 Ark. 658; 102 Ark. 383; 104 Ark. 475. The testimony shows the agreement of settlement made and that appellant was ready, able and willing to perform it, which is conclusive of the whole matter, and the suit should have been dismissed in accordance therewith. 117 Ark. 504; 120 Ark. 389; 111 Ark. 514; 75 Ark. 266; 101 Ark. 335. Under any construction appellee was only entitled to recover the amount agreed on, $200.

      Trimble & Trimble, for appellee.
   Hart, J.,

(after stating the facts). The procuring of the conveyance of the Carlisle property from Martin to Swaim was during the existence of the relation of attorney and client. In such oases the burden is upon the attorney of proving the fairness and equity of the transaction and the adequacy of the consideration, and, upon his failure to make such proof, a court of equity will treat the case as one of constructive fraud. The reason is that the relation of client and attorney is one of trust and confidence requiring a high degree of fidelity and good faith. Thweatt v. Freeman, 73 Ark. 575, and McMillan v. Brookfield, 150 Ark. 518.

The rule that an attorney who contracts with his client has the burden of proving that no advantage has been taken of the situation of the latter, is not restricted to contracts or dealings with respect to the rights or property in controversy in the particular proceeding in which the attorney is acting for the client, but it may extend to other transactions and contracts, where the relationship may be presumed to give the attorney some advantage over the client.

It appears from the record in this case that Swaim acted throughout the whole proceedings as the attorney and confidential adviser of Martin. The rule of equity which oasts upon the attorney the burden of showing perfect fairness on his part in all his dealings ydth his client is based upon the consideration that the confidential relations existing between the parties is such that the attorney has it in his power to avail himself of his influence over his client, and of the sense of dependence which the latter has in him, and of the confidence which the relation always imposes to a greater or less extent.

In the instant case both Martin and his wife testified that the deed to the Carlisle property was executed in order to protect the wholesale grocers who were giving credit to the moving grocery corporation, and thereby enable that corporation to continue in business. They say that it was expressly understood that, after the debts were paid, the instrument in question would be returned to them. Martin expressly denied that any part of the consideration was that he should return to Clement his notes given for stock in the moving grocery corporation.

In this respect he was corroborated by the -testimony of Clement. Clement testified that he purchased .stock through the representations of Swaim, and that he obtained the return of his notes by employing -an attorney for that purpose. Swaim was paid in stock for organizing the '’corporation. He was paid for his -services in securing the patent, and it does not make any difference that he paid all the amounts received by him for this purpose to the Washington attorney, who, in reality, appeared before -the department and -obtained the patent. The only -other service performed by Swaim was to act in conjunction with the other directors in getting the creditors to delay bringing suit against the moving grocery corporation for the collection -of their debts.

The chante-ellor found the is-sues in this respect against the attorney, and it cannot be said that his finding is against the preponderance of the evidence.

Again, it is claimed that, after the -suit wa-s brought by Martin against Swaim, Martin gave a written order for the dismissal of the suit. This order, however, was conditioned upon the payment to him of $200 by Swaim, and the latter represented to liim that he had the money in a bank in the city of Little Bock for that purpose. The evidence showed that he did not have anything like that amount to his credit in the bank at that time. It is true that Swaim made a tender of the $200 in court, but it was too late to avail him at that time. He did not have the money in the bank at the time he procured Martin to sign the -order for the dismissal of the case, and it was too late for him to get the money after Martin discovered that he did not have the money in bank and recalled his order of dismissal. In this respect the finding of the chancellor was also against Swaim, and it cannot be said that his finding is against the preponderance -of the evidence and therefore should be overturned on appeal.-

Martin lias taken a cross-appeal, and but little need be said on this branch of the case. The evidence shows that Anderson was an innocent purchaser for value of the Carlisle property from Swaim. This seems to be conceded by counsel for Martin; but they contend that the court erred in finding the value of the Carlisle property to be only $2,000 in excess of the mortgage indebtedness of $1,500 upon it. They point to the fact that several witnesses testified that the property was worth from $4,500 to $5,000. It appears, however, that the property is rented for only $30 per month, and, when this and other facts and circumstances introduced in evidence are considered, we do not think that the chancellor erred in rendering judgment in favor of Martin against Swaim for only $2,000.

It follows that the decree will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Boyce v. Goodwin.
    Opinion delivered April 30, 1923.
    1. Rewards — conditions.—He who offers a reward has the right to prescribe any terms he sees fit, and these terms must be complied with before any contract arises between him and the claimant.
    2. Rewards — AMOUNT.'—Where defendant offered a reward of $35 “for information resulting in the arrest and conviction of any one cutting trees” on his land, and plaintiff discovered three men cutting the same trees on defendant’s land, and reported this fact to defendant’s agent, thereby causing the arrest and conviction of the three men, the words “any one” were used to mean all persons participating in the same act, and plaintiff was entitled to recover only $35.
    Appeal from White Chancery Court; John E. Martineauj Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    C. L. Boyce sued C. L. Goodwin to recover a reward offered for information resulting in the arrest and eonviction. of - any one cutting trees on the land of the defendant. The offer of the reward is as follows:
    “All persons, including hunters, are prohibited from cutting any trees on this land under any condition, and will be prosecuted for so doing, when caught.
    “$35 Reward
    “For information resulting in the arrest and conviction of any one cutting trees on this land.
    “C: L. Goodwin, Owner.”
    On Feb. 10, 1922, O. L. Boyce discovered three men engaged in unlawfully cutting timber on the land of C. L. Goodwin. He reported the matter to an agent of Goodwin, and the offenders were arrested, tried, and convicted. No appeal was taken from the judgment of conviction. The plaintiff asked for judgment in the sum of $105 against the defendant. The defendant tendered the sum of $35 to the plaintiff, and, upon his refusal to accept it, tendered the amount in court. In his answer, the defendant further alleged that the three parties were engaged-in cutting the same trees, and that they were tried and convicted together.
    The proof corresponded with the pleadings, and the court rendered judgment in favor of the plaintiff for $35.
    The plaintiff has duly prosecuted an appeal to this court.

      Culbert L. Pearce, for appellant.
    An offer of reward becomes a binding contract when accepted and service performed. Clark on Contracts, 47; 23 R. O. L. 1114; 24 Am. & Eng. Enc. of Law, 945. One offering reward has right to prescribe terms and .conditions, which cannot be changed after service rendered. 43 Ark. 337; 117 Ark. 243; 8 Ann. Cas. 860, note; 24 Am. & Eng. Enc. of Law, 942, 952, 955; 23 R. C. L. 1115, 1128, 1129. If contract not understood alike by parties, it is subject to construction by the court. 24 Am. & Eng. Enc. of Law, 946. ‘‘ Any one77 defined: Bouvier’s Law Dictionary; Webster’s International Dictionary; 1 Words & Phrases, 412,2nd Series; 216 Ann. Cas., 1916-E, note; State ex rel. v. Kansas. City; see Chambers v. Ogle, 117 Ark. 242. In ease of doubt, rule requires construction most favorable to promisee. 6 R. €. L. i854; 4 Ark. 199; 73 Ark. 338; 74 Ark. 41; 84 Ark. 431; 90 Ark. 88; 105 Ark. 518; 112 Ark. 1; 171 S. W. 136.

      Brvmdidge (& Neelly, for appellee.
    The reward of $35 was offered for the arrest and conviction of “any one cutting trees on this land.” Definition of “any one,” Webster’s Unabridged Dictionary; 3 C. J. 249. Of course appellant cannot recover a reward for each of the three persons convicted of cutting one tree at the same time.
   Hart, J.,

(after stating the facts). The judgment of the chancery court was correct. As stated in Amis v. Conner, 43 Ark. 337, he who offers a reward has the right to prescribe any terms he may see fit, and these terms must be complied with before any contract arises between him and the claimant.

The plaintiff seeks to reverse the judgment upon the ground that he was entitled to a reward of $35 for each of the three persons convicted. The record shows that the three persons were convicted of cutting the same tree at the same time. The reward was for information resulting in the arrest and conviction of any one cutting trees on the land of Goodwin. The word, “any one,” in the sense it was used, included all persons participating in the same act. The word frequently extends to an indefinite number of persons included in the same transaction. Here the three persons were engaged in cutting the same tree at the same time, and we think, when the reward is construed as an entirety, the word “any one” was intended to include all who might participate in the same act of trespass.

The decree is affirmed.


author: Smith, J.

text:
    Day v. Johnston.
    Opinion delivered April 30, 1923.
    1. Executors and administrators — guardian and ward — probate SALES. — Tinder Acts 1919, No. 263 (Crawford & Moses’ Dig., §§ 181, 5028) providing “that in all guardians’ and administrators’ sales- heretofore or hereafter made, the finding and recital in the judgment and decree of the probate court authorizing and ordering any such sale that the guardian or administrator was duly and legally appointed and qualified; that the sale was conducted according to law; and that the facts set forth in the petition entitled the said guardian or administrator to make the said sale, shall be conclusive and binding on all parties having or claiming an interest in the said sale, save upon direct appeal to the circuit court made in such cases as are now provided by law; and such finding and judgment or decree of the probate court shall not be open to collateral attack save for fraud or duress; provided, that as to sales heretofore made, all parties having any interest therein shall have 12 months after the passage of the act in which to attack such sales,” held that as to sales previously made the act is valid as a statute of limitations.
    2. Executors and administrators — guardian and ward — appointment of nonresident. — Though the statutes providing for the appointment of administrators and guardians contemplate that only residents of the State shall be appointed, yet where the probate court approved the appointment of nonresidents, such order imported a finding that the appointees were qualified, and is conclusive on that question upon collateral attack.
    3. Executors and administrators — guardian and ward — confirmation of private sales. — A private sale of the lands of a decedent, made under an -order of the probate court for the payment of his debts, as also a private sale of the lands of a minor to provide funds for -his education, is not void when confirmed, under Acts 1919, No. 263 (Crawford & Moses’ Dig., §§ 181, 5028).
    Appeal from Clay Circuit Court, Western District; W. W. Bandy, Judg’e;
    reversed.

      G. T. Bloodworth, for appellants.
    The probate court had jurisdiction to sell the lands of the minors. Sec. 5037, C. & M. Dig’est. The deeds of the guardian and administratrix are regular on their faces, and show.that the court had jurisdiction, and the recitals are evidence of the legality and regularity of the sales. Sec. 1534, C. & M. Digest. The fact that the administratrix and guardian were not residents of the State is not indicated by their letters, and the question is concluded by curative act of 1919. Secs. 181, 5028, Crawford & Moses’ Digest. Appellees do not come within the saving clause of the 'statute, and the court erred in not directing a verdict for appellants. The court erred in directing a verdict for appellees for two-thirds of the lands in any event, both widows having conveyed their dower interest therein and appellees making no claim under said conveyances. 19 C. J. 558.

      Oliver & Oliver, for appellees.
    The findings, record and recitals in the probate court’s record of the sale of these lands do not bring the transaction within the provisions of the curative act, which has no application. Secs. 181, 5028, 0. & M. Digest. The person assuming to' be guardian was a nonresident of the State and could not act as guardian. Sec. 4992, O. & M. Digest. This question not having been raised below, cannot be urged here. Appellants did not acquire the dower interest of either of the widows through their quitclaim deeds to Lewis. The widow of P. C. Johnston was seized of both dower and homestead interest in the land, upon the death of her husband, and the dower being the lesser was merged in the greater homestead interest. 98 Ark. 118; 21 C. J. 1034, § 234, 1035, § 235, 1038, § 240. The grantee acquired no interest of her quitclaim deed, as it worked an abandonment of the homestead interest. 147 Ark. 555. The title immediately vested in the heirs of P. C. Johnston. 147 Ark. 555,' supra. If dower not merged, no title to the interest passed to appellant’s grantor, as dower had never been assigned to Mollie Johnston. 31 Ark. 334; 111 Ark. 305; 84 Ark. 557. Minnie Johnson had no dower in any part of the 160-acre tract, as it constituted the homestead of her husband’s mother, Mary Johnston. H. Y. Johnston was never seized of any part of the land. See. 3514, C. & M. Digest; 98 Ark. 118.
   Smith, J.

Judgment was rendered for appellees in the court below upon the assumption that the question presented was one of law, and not of fact, and there appears to be no substantial conflict in the testimony on which the court directed the jury’s verdict.

The litigation arose out of the following facts. P. C. Johnston died about the year 1900, owning and in possession of a quarter section of land in Clay County, Arkansas, of which about forty acres were in cultivation. At the time of his death he was survived by his widow and an adult son, H. Y. Johnston. Soon after P. C. Johnston’s death his widow moved to Corning, Arkansas, where she lived with her son until his death about two years later, in 1903. H. Y. Johnston was survived by his widow and three minor children.

The land was Mrs. P. C. Johnston’s homestead, but, after the death of her son, she and her son’s widow moved across the State line into Missouri, where it appears they have since resided. These widows decided to sell the land, and contracted its sale to R. L. Lewis, and, pursuant to this agreement, they, on August 14, 1903, each executed to Lewis a quitclaim deed conveying such interest as they had in the land. In June prior to the execution of these deeds Mrs. P. C. Johnston was appointed administratrix of her husband’s estate, and Mrs. H. V. Johnston was appointed guardian of H. Y. Johnston’s minor children. These appointments were duly approved and confirmed by the probate court. Thereafter petitions were filed by both the administratrix and the guardian, praying that an order be made directing the sale of the land. The administratrix’s petition recited that it was to the best interest of the estate, and that of the guardian, that the sale of the land was necessary to educate the minor children. The prayers of both petitions were granted,, and, in separate orders of the court, both the administratrix and the guardian were directed to sell tlie land, after having it appraised, at a private sale to Lewis, for the sum of $1,500. The land was appraised at a thousand dollars; and it is not questioned that $1,500 was a fair and reasonable price for the land at that time. After living on the land until the date of his deed to appellants, Lewis sold it to the appellants here. Two of H. V. Johnston’s children brought this suit to recover an undivided two-thirds interest in the land, the other child not having joined in the suit; and, as we have said, there was a judgment in their favor under the direction of the court.

The proceedings in the probate court' appear to have been regular on their face. There are two separate and distinct proceedings directing the sale of the land, and every step leading to the sale was first directed, and later approved, by the court. The administratrix and the guardian reported the sale, and the court approved the report thereof. A deed was executed by the administratrix, and another by the guardian, and each of these deeds was approved.

It appears, however, from the testimony of both the administratrix and the guardian, that, at the time of their sales, they were both residing in Missouri, and it appears, from the face of the proceedings in the probate court, that the land was sold privately. If there was any other defect in the sale, it is not pointed out.

It is conceded that the action of the court in declaring the deeds to Lewis void would have been correct but for act 263 of the General Acts of 1919, page 193, entitled “An act to render conclusive judgments and decrees of the probate court in guardians’ and administrators’ sales.”

Section 1 of this act reads as follows: ‘ ‘ That, in ail guardians’ and administrators’ sales heretofore or hereafter made, the finding and recital in the judgment or decree of the probate court authorizing and ordering any such sale, that the guardian or administrator was duly and legally appointed and qualified, that the sale was conducted according to law, and that the facts set forth in the petition entitled the said guardian or administrator to make the said sale, shall be conclusive and binding on all parties having or claiming an interest in the said sale, save upon direct appeal to the circuit court, made in such cases as are now provided by law; and such finding and judgment or decree of the probate court shall not be open to collateral attack, save for fraud or duress. Provided, that, as to sales heretofore made, all parties having any interest therein shall have twelve months after the passage of this act in which to attack such sales.” Section 2 of the act contains the emergency clause, and the act was approved March 12, 1919.

This section 1 twice appears in Crawford & Moses’ Digest. ■ It is first found as first § 181 in the chapter on Administration, there being two sections numbered 181; and is next found as § 5028 of the chapter on Guardian and Ward.

It applies alike to sales by administrators and guardians, and appellees do not come within the saving clause, for this suit was begun February 15, 1922, and the time limited by the act within which existing sales might be attacked expired in 1920.

It will be observed that the act applies to all sales “heretofore or hereafter made,” and the question of its constitutionality, although not discussed in the briefs, has been raised in the consultation of the judges.

The act, in so far as it relates to sales heretofore made, might well be sustained as a statute of limitations, as a reasonable time was allowed after the act was passed in which an interested party could prevent the consequences .of the act falling upon him. Towson v. Denson, 74 Ark. 302, and cases there cited to this point. Cottonwood Lbr. Co. v. Harris, 78 Ark. 95.

The act applies also to future sales, and the question of the separability of these provisions would arise, if one should be held valid and the other void, so that, if we hold the provisions of the act valid so far as they relate to past sales, we must also consider the validity of its provisions affecting future sales, unless it clearly appears that the provisions are separable. There is such doubt about the separability of these provisions that we prefer to consider the validity of the act in its entirety. In doing this it will be necessary to consider prior decisions of this court and preceding legislation on this subject.

By § 140, C. & M. Digest, the probate court is directed, upon a proper showing made by the administrator of the estate of any deceased person, to order the sale and conveyance of any lands belonging to such estate, whenever, in the judgment of such court, it would be materially of advantage to the estate to make such sale,- and to reinvest the proceeds, etc. And by § 5037, C. & M. Digest, the probate court is authorized to sell minors’ lands to provide funds for their education. There was therefore no lack of jurisdiction on the part of the court to order the sales which were made.

Our statutes contemplate that only residents of the State shall be appointed administrators and guardians; and, while it now appears that both the administratrix and the guardian were nonresidents at the time they made their respective sales, and possibly at the time of their appointment, the probate court approved each appointment, and this order of approval imports a finding that the appointees were qualified for appointment. The court may have erroneously found the fact, but its order involved a finding of fact, and is conclusive of the question.

There appears to have been no authority under the' law to sell this land, privately, either by the administratrix or the guardian, yet the act quoted appears to cure that defect. Is the act effective for that purpose?

A very famous case in our probate jurisprudence is that of Apel v. Kelsey, which was twice before this court, the first opinion appearing in 47 Ark. 413, and the second in 52 Ark. 341. The case involved the validity of a probate sale in the making* of which it was alleged no' proper notice had been given of the application for the order of sale. This objection was disposed of by saying that the non-publication of the notice was merely an error, to be corrected on appeal, and one which did not affect the jurisdiction of the court. An objection that the land had not been viewed and appraised was disposed of in a similar manner, the court saying: “Upon a collateral attack, the only inquiry commonly is, had the court jurisdiction? For, if it had, the purchaser is not bound to look behind the order of the court, or inquire into its mistakes.”

The court, however, expressly reserved its decision on the effect of a private sale on the validity of the title for future consideration, and in so doing said: “Itmay be that this is such a patent error, on the face of the proceedings, as to affect the purchaser and all claiming under him with notice.”

It did not satisfactorily appear whether the sale had been confirmed, and the court reversed the judgment and remanded the cause, with certain directions, “unless the plaintiff will undertake to show by record evidence that the sale therein recited was duly confirmed.”

The cause was remanded, and it was shown that the sale had been confirmed, and it became necessary therefore for the court to decide the effect of the confirmation of a private sale. This the court did in the following language: “It is impossible upon principle to distinguish the question here presented from those so often decided heretofore, and, in obedience to the settled doctrine of this court, fixing the character of the probate court, and the effect of its judgments, we hold that a private sale of land by an administrator, upon order of that court, is not void when confirmed.”

The court then proceeded to deprecate the state of the law growing out of the prior decisions of the court, which had become rules of property, .and the aid of the Legislature was invoked to change the rule, giving the same verity to the judgments of probate courts as was given to the judgments of other courts of record.

Thereafter, at the next session of the General Assembly, an act was passed entitled “An act to protect estates of minors from loss,” which reads as follows: ‘ ‘ All probate sales of real estate, made pursuant to proceedings not in substantial compliance with statutory provisions, shall be voidable.” Act 106, Acts of 1891, p. 189. This act is found in C. & M. Digest as second § 181 thereof, also as § 5027.

The meaning of the word “voidable” appearing in this act was interpreted by us in the case of Mobbs v. Millard, 106 Ark. 563, and in reviewing the legislation we said: “This decision (Apel v. Kelsey, 52 Ark. 341) was rendered at the November term, 1889, and the court, speaking through Mr. Justice Sandels, deplored this condition of the law, and in clear and forceful language set forth at length the reasons why the law should be changed in this respect. The learned justice said that the courts were powerless because former interpretations of the law had become rules of property, but called attention to the fact that the Legislature had the power to render invalid future transactions of this kind. At the next session of the Legislature § 3793 of Kirby’s Digest was enacted. It is reasonably certain, then, that the Legislature had knowledge of the condition of the law as announced in the case of Apel v. Kelsey, 52 Ark. 341, and, in response to the suggestion made by the court, expressly intended to make a change in the law. If this is not true, it is evident that the act in question can have no force and effect whatever.”

We held that the sale there attacked was not in substantial compliance with the statute, and was invalid, but we there also said: “We do not wish to be understood as holding that errors and irregularities in making the appraisements or in otherwise complying with the provisions of the statute in regard to the sale would not be a substantial compliance with the provisions thereof. See Harper v. Smith, 89 Art. 284. But we do hold that an essential requirement of the statute in regard to the sale of a minor’s land cannot be entirely omitted and wholly disregarded. ’ ’

Upon the authority of this case we would be constrained to hold that the sale here attacked, having been privately made, was not in substantial conformity to the law, and therefore void; but the General Assembly, by the act of 1919, set out above, has enacted otherwise.

In other words, the General Assembly of 1891 changed a rule of property as announced by this court, and a subsequent session of the General Assembly has. reenacted the rule of property, at least in the particulars stated therein. We gave effect to one act, and we perceive no reason why we should withhold giving effect to the other; and, when we have given it effect, we must hold that the judgments of probate courts become impervious to collateral attack if they contain the jurisdictional recitals which the General Assembly has determined are essential to constitute a valid sale against collateral attack. In short, the decision of Apel v. Kelsey, 52 Ark. 341, is reenacted as to those probate court judgments which contain the recitals that the court authorized and ordered the sale, that the guardian or administrator was duly and legally appointed and qualified, that the sale was conducted according to law, and that the facts set forth in the petition entitled the guardian or administrator to make the sale; and, this being true, private sales made under the orders of the court are not void when confirmed, and are subject to attack only on the direct appeal to the circuit court allowed by law, save for fraud or duress, as provided in .this act of 1919.

As to past sales, the act is sustained as a statute of limitations. As to future, sales, it is valid as prescribing the recital of facts which are essential to confer jurisdiction on the probate court and make such sales impervious to attack on account of the omission of other requirements which are not made jurisdictional.

Without setting out the recitals of the numerous prohate court orders appearing in the record, we announce our conclusion to be that these orders contain substantially the recitals required by the act of 1919.

It follows therefore that the verdict should have been directed for appellants, and the judgment against them, not only for the land but for the rents also, which the jury found, will be reversed, and the cause remanded with directions to dismiss the complaint.

Hart, J., dissents.


author: Smith, J.,

text:
    Smith v. State.
    Opinion delivered April 30, 1923.
    1. Intoxicating liquors — making mash pit for distillation— sufficiency of evidence. — Evidence held sufficient to sustain a conviction of making mash fit for distillation.
    2- Criminal law — statement made in accused’s presence._ Where, under an indictment for making mash fit for distillation, evidence was introduced tending to prove that defendant was present at M.’s house aiding and abetting in making the prohibited mash, testimony of the officers who arrested defendant that M., in defendant’s presence, showed them the bed on which defendant slept, was admissible as a remark calling for a denial by defendant if untrue, and also admissible to contradict M.’s testimony at the trial.
    3. Criminal law — instruction singling out evidence. — While it is improper for the court to direct the jury to consider certain matters in determining defendant’s guilt, the giving of such an instruction was not prejudicial error where the court instructed the jury to consider all the facts and circumstances offered in proof, and further instructed them on the question of reasonable doubt.
    4. Criminal law — incriminating statements of accused. — The statements of an accused tending- to incriminate him are presumptively admissible against'him, in the absence of any showing that they were not voluntary or were induced by fear or hope of favor.

      Appeal from Little Biver Circuit Court; B. E. Isbell, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Appellant was convicted under an indictment charging him with the crime of making a mash fit for distillation as alcohol. He has not favored us with a brief, but we have examined the record in the case, and will discuss such of the questions raised by the motion for a new trial as appear to be of sufficient importance to require discussion.
    The sufficiency of the evidence is raised by the motion for a new trial. On that question it may be said that the officers who arrested appellant testified that he voluntarily made certain admissions, which, if true, very strongly indicated his guilt. Appellant denied, at his trial, that he had made these admissions, but the evidence is amply sufficient to sustain the conviction aside from them.
    A white man named Moore was engaged in the manufacture of whiskey, and his premises were under surveillance, and the sheriff, accompanied by- two deputies, secreted themselves near Moore’s house to watch developments.
    Shortly after dark the officers saw appellant, who is a colored man, approach Moore’s house. He called to Moore, who came out of the house and engaged in a conversation with appellant. Moore and appellant then went into the horse lot, and hitched a horse to a slide, on which they loaded what the sheriff testified was a still. - The slide was driven near enough to the sheriff’s place of concealment for him to recognize the object as a still. Appellant testified that the object placed on the slide was a barrel of tar which he was hauling- to the river to caulk a boat. The river was about a mile from the house, and Moore did have a boat on the river. Appellant explained his action in hauling the barrel after night by saying that he had been hunting that day and forgot to haul the barrel, as he had been directed to do, until after night had fallen. He admitted that he had killed no game. The officers followed appellant through the woods for about a quarter of a mile, and were able to do so by the noise made by the metal vessel on the slide. Appellant admitted he did not go the regular road to the ferry on the river from Moore’s house, but testified that he went the short way. The officers lost appellant in the woods, and returned to Moore’s house, and, about a half-hour after their return, appellant came back, and unhitched the horse and turned it loose. The officers overheard a conversation in which Moore told appellant he would probably 'be asleep when he returned, but to awaken him. The officers made the arrest before appellant left again, and explained that the arrest was not made earlier because they expected to catch appellant in the act of making whiskey. When first arrested, appellant denied knowing anything about the still or the slide, but later admitted the fact. The •officers searched until late in the night, but were unable to find the slide. The sheriff testified that he found where the slide had been driven into the river, but did not find the slide itself.
    The officers searched Moore’s premises, and they detailed the things found around the house which indicated that whiskey had been recently made there. A still liad been in operation only about one hundred yards from the house, and a number of jars and jugs were found which had recently contained whiskey. A copper still was found under some hay about seventy-five yards from Moore’s house, and three barrels of mash were found concealed under a woodpile, which the officers testified was about ready “to run.”
    At the time appellant was arrested he had with him a two-gallon bucket, a lantern, and a gallon demijohn, and a pocket of shotgun shells. The officers also found around the premises bottles and jugs which had contained potassium permanganate and carbolic acid. The officers testified that, after appellant’s arrest and during the night, appellant talked about the affair, and that he did so freely and voluntarily, without duress or coercion of any kind; but one of the officers admitted striking the appellant the next morning, but he testified that this was done because appellant refused to leave the pump-house where he then was.
    Moore was unmarried, but he kept house, and the officers testified that he showed them, in the presence of appellant, a bed on which appellant occasionally slept in the house. The admission of this testimony is assigned as error.
    As a witness Moore admitted the ownership of the mash, but denied appellant had anything to do with its preparation, and he and appellant testified that appellant had been engaged in operating a ferry across the river, and on the pight in question had hauled away a barrel of tar. Moore also testified that the tan was bought by Knighton, the owner of the farm on which Moore lived, for the purpose of tarring his fishing nets, of which he had fifteen or twenty. Other facts will be stated in the opinion.
    No 'brief for appellant.

      J. 8. TJtley, Attorney G-eneral, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    Only such .assignments of error as were properly excepted to will be noticed. Yaeoo $ Miss. Val. Ry. v. Solomon, 123 Ark. 66.
    No error in giving .State’s instruction No. 3. He was not charg’ed with “aiding and abetting” but all present were principals. 'Sec. 2311, Crawford & Moses’ Digest. Instruction No. 7 not erroneous. ■ The testimony of the officers relative to the alleged confession of appellant was properly admitted. Meyer v. State, 19 A^k. 156; Young-blood v. State, 35 Ark. 35; Hammons v. State, 73 Ark. 495. Assignments 14-19 are without merit, as the testimony to which' they relate was admissible for the purpose for which it was given under the restrictions placed on it by the court. The weight of the testimony and credibility of witnesses was for the jury, and their verdict is supported by the evidence. Rhea v. State, 104 Ark. 174; Denison v. State, 120 Ark. 312; Hughes v. Sebastian County Bank, 129 Ark. 218; Harris v. Bush, 129 Ark. 369.
   Smith, J.,

(after stating the facts). We think the facts recited are sufficient to sustain appellant’s conviction. It is true he was not seen around the mash in the woodpile, but neither was Moore, who admitted his guilt; and we think that, if Moore was guilty, appellant was guilty also, for we think it fairly.inferable that appellant not only stood by and aided and assisted, but that he did most of the actual work.

The testimony of the officers that Moore showed them the bed on which appellant slept is admissible on two theories: (1) It was an accusation of guilt, which the jury might have found called for a denial by appellant if it was untrue (Davis v. State, 14 Ark. 170; Sheptine v. State, 133 Ark. 239). (2) Moore testified that appellant had nothing to do with the mash, and denied that appellant ever stayed at his house. The testimony was competent therefore for the purpose of contradicting Moore.

An exception was saved to the action of the court in telling the jury that, if appellant made the mash or beer, or was present aiding and abetting, or ready and consenting to aid and abet, in its manufacture, to convict him. The objection made to the.instruction was that appellant was indicted as a principal, and the instruction was therefore improper. Section 2311, C. & M. Digest, reads as follows: “All persons being present, aiding and abetting, or ready and consenting to aid and. abet, in any felony, shall be deemed principal offenders, and indicted and punished as such.” The instruction complained of was proper under this section of the statute, and, as we have said, there was testimony that appellant Was present aiding and abetting, if, in fact, he did nothing more.

An instruction numbered 7 was given which reads as follows: “In determining whether or not the defendant was interested in the making and manufacture of the mash or beer, as alleged in the indictment, you have a right to take into consideration the fact that he visited the home of the witness Moore in the night time, if you so find; the fact that he procured a horse and slide and moved a still away from the home, if you so find; his actions and conduct at the time; his statements to the officers, if any; and all other facts and circumstances offered in proof; and, if you find from the testimony beyond "a reasonable doubt that he was connected with the manufacture of the mash or beer, as charged, you should convict him.”

This instruction is substantially in the form of an instruction set out in the case of Benson v. State, 149 Ark. 633. We there said that it was not commendable to give an instruction in this form. The Constitution prohibits judges from charging in regard to matters of fact, and the judges should avoid the appearance of doing so. However, we said in that case that the facta stated were recited hypothetically, and that the consideration of the jury was not limited to those facts alone, and we declined to reverse the judgment, because, as we said (quoting from the case of Hogue v. State, 93 Ark. 316): “But the giving of such an instruction is not -prejudicial error where the court, in the whole charge, directs the jury to consider all the facts and circumstances proved in the case, and especially where, as in this case, the court instructs that ‘the facts and circumstances in evidence shall be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of defendant’s innocence-.’ ”

We have in this case an instruction which was given there on the question of reasonable doubt.

The court properly refused to give an instruction numbered 10, which told the jury to disregard the testimony of the officers as to the statements of appellant in regard to hauling the still on the slide, and certain other statements, as the same had not been shown to have been made without the influen. of threats or fears or inducement held out to him at the time. The statements of an accused are presumptively admissible against him., Austin v. State, 14 Ark. 556; Youngblood v. State, 35 Ark. 35; Greenwood v. State, 107 Ark. 568; Dewein v. State, 114 Ark. 472.

It is only when the showing is made that his statements were not voluntary, or that they were induced by fear or hope of favor, that they are inadmissible. Appellant did not ask to have that question submitted to the jury. Upon the contrary, he made no confession at all, according to Ids testimony and that of Moore.

If, at the time this testimony was offered, the contention had been made that the confession, if such it may be called, had been procured by fear of punishment or hope of favor, then the court should, as a preliminary matter, have heard testimony on that question; and, if there had been substantial testimony showing that the confession was tainted, the court should have given cautionary instructions touching it, notwithstanding its admission. Shufflin v. State, 122 Ark. 606; Thomas v. State, 125 Ark. 267; Love v. State, 22 Ark. 336. But, in the absence of such a contention at the time the testimony was offered, the court properly refused to inject into the case an issue not raised by the testimony.

Upon the whole case we find no prejudicial error, and the judgment is affirmed.


text:
    American Railway Express Company v. Davis.
    Opinion delivered April 30, 1923.
    1. Removal of causes — nature of right to removal. — Where a petition ,and bond for removal of a cause to the Federal court were filed in due time and overruled, and judgment was rendered against the defendant, and the cause was appealed to this court, where a new trial was granted on other grounds, and on ■a second trial an amendment of the complaint was filed, not affecting the right of removal, and a second judgment was rendered against the defendant, from which he appealed, the right of removal on the second appeal must be determined as of the time when the petition and bond were filed; it being unnecessary to file a new petition and bond.
    2. Courts — federal question — conclusiveness of decision of federal cqurt. — Where, on a former appeal, this court sustained the action of the trial court in denying a petition for removal, relying upon a decision of the Supreme^ Court of the United States, and subsequently that court reversed its ruling and held a similar case removable, -such -decision is binding upon this court.
    3. Removal of causes — diversity of citizenship. — An action is removable on the ground of diversity, -though brought in a Federal district of which neither party is a resident.
    4. Appeal and error — former decision not binding when. — A decision of this court on a former appeal herein that the case was not removable to the Federal court is not conclusive on this appeal where, in the meantime, the Supreme Court of the United ' States had ruled otherwise, though appellant did not appeal from ■the former decision of this court, he having no occasion to do so since the case was reversed upon another ground.
    Appeal from Little River Circuit Court; James S. Steel, Judge;
    reversed.

      Gottmghmn, Hayes, Green & Mclnnis, and June R. Morrell, for appellant.
    The court erred in permitting the amendment to the complaint which states a new and different -cause of action. 102 Ark. 20; 60 S. E. 805; 89 Atl. 277; 107 Atl. (Yt.) 569, 204 S. W. (Mo.) 954; 45 S. E. 220; 186 IT. S. 365; 143 Mo. 137, 32 S. E. 30. Court erred in permitting and refusing the introduction of certain -testimony, 6-17 assignments. Should have directed a verdict for appellant. No testimony showing that Davis had authority to compel deceased to line iip the trucks. 93 Ark. 397, 125 S. W. 439. 88 Ark. 20. The court erred in giving instructions and in refusing to give appellant’s requested instruction No. 7, defining “scope of employment,” which was not done in instructions given. 67 111. App. 460. Erred also in not giving appellant’s requested instruc-' tions Nos. 2 and 3 on the burden of proof, none being given on the point. 105 Ark. 213; 116 Ark. 125; 117 Ark. 572. Erred in not giving requested instructions Nos. 6, 9, 10, 11, 13 and 14, presenting appellant’s theory of the ■case. 91 Ark. 572; 122 Ark. 125; 80 Ark. 854; 103 Ark. 260; 152 Ark. 258.

      Stephenson & Holloway and A. P. Steel, for appellee.
    No error in permitting amendment to complaint. Gould have been treated as amended in first instance to conform to evidence introduced without objection. Case was reversed on account of erroneous instructions. 40 Am. & Eng. Ann. Gas. 1916-B, 508; 29 Am. & Eng. Ann. Cas. 1913-D, 735; 36 Am. & Eng. Ann. Cas. 1915-B, 1155; 21 B. C. L. 132; 131 S. W. (Ark.) 963; 96 S. W. 993; 53 S. "W. 572. No error in introduction of testimony neither was there error in refusing to direct a verdict for appellant. The record presented a question for the jury. 75 Ark. 579; 132 Ark. 282; 137 Ark. 341; 238 S. W. 50. The instructions as a whole submitted the issues fairly to jury, and the judgment .should be affirmed.

      Gottingham, Hayes, Green & Mclnnis, and June B. Morrell, in reply.
    Burden was on plaintiff to show that Garrison was acting within scope of his employment. 90 Ark. 104; 105 Ark. 130; 124 S. W. 1073; 105 Ark. 326. Court erred in refusing to give appellant’s instruction numbered 1 to 5, to the effect that the court was without jurisdiction of the cause, which should have been transferred to the Federal court. 203 IT. S. 449, and 209 IT. S. 240.

      Stephenson é Holloway and A. P. Steel, in reply to motion to remand and transfer.
    No motion to transfer filed in this case; petition and bond filed in case heard on first appeal and not reversed after amendment made to complaint after reversal, Can’t experiment on case in State court and then remove to Federal Court. 23 B. C. L. 716. Bemoval Cases, 25 IT. S. (L. ed.) 593; 26 IT. S., L. ed. 129; 37 IT. S., L. ed. 399. Appellant tried, its case in the State court, and now, for 'the first time, seeks to raise the question of removal here oil a record made in the old case and on the former appeal. It has waived its question, of privilege, and motion to remand should be denied.
   Smith, J.

This is the second appeal in this case. The opinion on 'the former appeal is reported in 152 Ark. 258 (American Ry. Express Co. v. Davis).

A recovery of damages was had upon the theory that the express company, by which Davis, the deceased, was employed, had placed a dangerous instrument, to-wit, a pistol in the hands of Garrison, another employee, of immature judgment, and that, at a time when Garrison was not required by his duties to use or handle the pistol, he had done so wrongfully and negligently, thereby causing its discharge and killing Davis. We held on the former appeal that no case was made on tiie grounds alleged, and reversed the judgment of the court awarding damages, but did not dismiss the case because, in the opinion of the majority, there was a question in the case whether Garrison had used the pistol in the discharge of his duties as Davis’ superior for the purpose of compelling compliance with the directions to Davis to return to work, and had used excessive force in doing so.

Upon the remand of the cause the pleadings were amended to conform to this suggestion, and the cause was tried on that theory, and a verdict was again returned in favor of the plaintiff, from which is this appeal.

The defendant, in apt time, as appears from the former opinion, presented its bond and petition for removal to the Federal court on account of diversity of citizenship. The court overruled that petition, and this action was assigned as error. We disposed of the assignment of error by saying: ‘ ‘ The case in that respect falls within the decision of the Supreme Court of the United States in Ex parte Wisner, 203 U. S. 449, to the effect that, an action instituted in a Federal district other than that of the residence of either the plaintiff or defendant cannot be removed on the ground of diversity of citizenship. "We have followed that rule in numerous cases. See the recent case of C., R. I. & P. Ry. Co. v. Cobbs, 151 Ark. 207.”

This assignment of error is now renewed, but appellee insists that no relief should be granted on that account for the following reasons: (1) That, upon the remand of the cause, a new petition and bond should have been filed when the complaint was amended; (2) That the former opinion is the law of the case.

There was nothing in the amendment to the complaint affecting the right of removal. If that right existed at all, it existed both before and after the filing of the amended complaint. The cause of action sued on was the alleged wrongful death of Davis, and the ground of removal was that of diversity of citizenship.

In the case of Texarkana Telephone Co. v. Bridges, 75 Ark. 116, we said that the right of removal from the State to the Federal courts, so far as concerns the action of the State court, depends upon and must be determined by the condition of the record in the State court at the time the removal is sought, and we there quoted from the case of Burlington, etc., R. Co. v. Dunn, 122 U. S. 514, the following statement of the law: “The theory on which it (the right of removal) rests is that the record closes, so far as the question of removal is concerned, when the petition for removal is filed and the necessary security furnished. It presents, then, to the State court a pure question of law, and that is, whether, admitting the facts stated in petition for removal to be true, it appears on' the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit.”

The amendment to the complaint gave no right of removal which did not exist when the petition and bond therefor were filed, and the right to remove must therefore be determined as of the time when the petition and bond were filed (they have been filed in apt time), as u is well settled that the right to insist upon a removal of the cause is not waived by filing answer and contesting the suit upon its merits. Texarkana Telephone Co. v. Bridges, supra, and cases there cited on this proposition.

As appears from our former opinion, we upheld the action of the trial court in denying the prayer to remove upon the authority of the case of Ex parte Wisner, 203 U. S. 449. Since then that case has been expressly overruled by the Supreme Court of the United States in the case of Lee v. Chesapeake & Ohio Ry. Co., decided January 22, 1923, 43 Sup. Ct. Rep. 230. In this case Mr. Justice Van Devanter, for the court, said: “The decision was given in 1906, and was a departure from what had been said of the same provisions in prior cases, fiotably Mexican Nat. R. Co. v. Davidson, 157 U. S. 201, 208, and Sweeney v. Carter Oil Co., 199 U. S. 252, 259. Much that was said in the opinion was soon disapproved In re Moore, 209 U. S. 490, where the court returned to its former rulings respecting' the essential distinction between the provision defining the general jurisdiction of the circuit courts and the one relating to the venue of suits originally begun in those courts. But, as the decision was not fully and expressly overruled, it has been a source of embarrassment and confusion in other courts. We had occasion to criticize it in General Invest. Co. v. Lake Shore & M. S. R. Co., supra, and now, on further consideration, we feel constrained to pronounce it essentially unsound, and definitely to overrule it.”

It was by the same learned justice there also said: “In this connection it should be observed that the opinion In re Moore is open to the criticism that it seemingly assumes that, where neither party is a resident of the district, the removal, to be effective, needs the plaintiff’s assent. We find no support for such an assumption in the provisions we are considering. Under them, as before indicated, the exercise of the right of removal rests entirely with tlie defendant, and is in no sense dependent >on the will or acquiescence of the plaintiff. The opinion In re Moore is qualified accordingly.”

The case of General Investment Co. v. Lake Shore & M. S. R. Co., 258 U. S. —, 43 S. C. Rep. 106, was decided November 27, 1922, that decision also being subsequent to our own opinion on the former appeal in this case, which was delivered February 27, 1922.

Our former opinion cannot, therefore, be the law of the case, for the reason that the case which we'followed in declaring the law has been expressly overruled; and, as this is a Federal question, it is our duty to follow the decisions of the Supreme Court of the United States, and in so doing we must now hold that the case is removable, notwithstanding our former decision that it was not removable.

In the syllabus to the case of Danaher v. Southwestern Telegraph & Telephone Co., 137. Ark. 324, it is said: “Where the issues and facts on a third appeal were the same as they were on the last of the former appeals, the decision of the Supreme Court of the United States reversing the decision of the Supreme Court of Arkansas on such second appeal would be the law of the case.”

The principle controlling here was announced by Sanborn, Circuit Judge, in the case of St. L. & S. F. R. Co. v. Quinette, 251 Fed. 773, a case which, like the one under review, originated in the State of Oklahoma.

That case turned upon the construction of a statute of limitations as construed by the Supreme Court of Oklahoma. It was there said: ‘ ‘ The court below first held that the action against the railroad company was barred by subdivision 3, section 5550, and section 5553 of the Compiled Laws of Oklahoma of 1909, which are now subdivision 3, section 4657, and section 4660 of the Revised Laws of Oklahoma of 1910; but in Hale v. St. L. & S. F. R. Co., 39 Okla. 192, 134 Pac. 949. L. R. A. 1915-C, 544, Ann. Cas. 1915-D, 907, the Supreme Court of Oklahoma so construed these sections that they constituted no bar to this action, and, in deference to the opinion of that court, this court was constrained to reverse the judgment in favor of that company and to order a new trial. Quinette v. Pullman Co., 229 Fed. 333, 143 C. C. A. 453. That trial to a jury has been had, and it has resulted in a joint judgment against the companies for $10,000 and costs. After the second trial and judgment, and on October 30, 1917, in St. L. & S. F. R. Co. v. Taliaferro, 168 Pac. 788, L. R. A. 1918-B, 994, the Supreme Court of Oklahoma overruled its decision in Hale v. Frisco Co., and so interpreted these sections of the statutes that this action was, when it was commenced, and is; barred thereby, as the court below had held on the first trial of this case.”

For the reversal of the judgment in that case the appellant railroad company insisted that, according to the latest and true interpretation of the statute,. the cause of action was barred before it was commenced. Counsel for the plaintiff objected to the reversal of the cause because: "(1) The ruling of the court below on the plaintiff’s demurrer to the answer of the defendant pleading the statute of*limitations as a defense has not been assigned as error; (2) the question was not raised on the motion for a new trial; (3) rule 11 of this court provides that 'errors not assigned according to this rule will be-disregarded’; (4)'the decision of this court upon the plea of the statute of limitations in 229 Fed. 333, 143 C. C. A. 453, remains the law of this case”; and also upon another ground.

The court held against the plaintiff on all these contentions, and it was there said: "But the true construction of the sections stated, which have been the subjects of debate and interpretation, has been the same all the time, and from a time prior to the commencement of this action they have barred it. The error has not been in the statutes, but in the first decision of the Supreme Court of Oklahoma interpreting them, an error which, under the rule that the Federal courts follow the interpretation of the statutes of a State which the highest judicial tribunal of that State has adopted, where no question of general or commercial law, or of violation of the Constitution or laws of the United States, is involved, this court followed, as in duty bound; and, while the general rule is that the decision of a legal question by a Federal court, on a review of a trial of a cause, becomes the law of that case in a subsequent trial, and in a subsequent review of that trial by this court, there is a just and salutary exception to that rule, under which this case falls. It is that where, between the time of the decision of a Federal court of a legal question, like the construction of a State statute which is controlled by the decision of the Supreme Court of the State, and the time when the Federal court is called upon again to decide that question, or to enforce its decision in the same case, the Supreme Court of the State has either reversed or changed its former ruling, or made a decision at variance with that of the Federal court, it is the duty of the latter court, that still has jurisdiction of the case, to conform its decision and judgment to the latest decision of the Supreme Court of the State. Messenger v. Anderson, 225 U. S. 436, 443, 444, 32 Sup. Ct. 739, 56 L. ed. 1152. This rule is just and salutary, because the latest decision is presumptively the right decision, and the Federal court should apply that, rather than the erroneous one. ’ ’

This reasoning is so appropriate and conclusive of the question at issue that we have quoted at length.

It is true that there a Federal court was follow ing the State court in the construction of a State statute; while here we are following the construction of a Federal statute by the Supreme Court of the United State; but the point is that neither the Federal nor the State law can be changed by following an erroneous decision which has been overruled before the courts are called upon to make a final application of the overruled case. See also Louisville & N. R. Co. v. State, 107 Miss. 597, 65 Sou. 881, and other cases cited in the briefs of counsel.

It is suggested that appellant should have appealed from our former decision holding that it had no light to remove. But the sufficient answer to that argument is that it had no occasion to appeal, as we had reversed the judgment against it on another ground, leaving no judgment in force against it.

It follows therefore that the right to remove existed, and should originally have been granted; and for this error the judgment of the court below will be reversed, and the cause remanded, with directions to transfer the cause as prayed.


author: Humphreys, J.

text:
    State v. Staples.
    Opinion delivered April 30, 1923.
    Prosecuting attorneys — fees.—Under Crawford & Moses’ Dig., § 8310, providing that a prosecuting attorney who shall attend and prosecute misdemeanor cases before a justice of the peace shall be allowed his fees in'case of conviction where the defendant is charged with an offense by -affidavit or otherwise and shall plead not guilty and shall secure the services to represent him on the trial, held that he is not entitled to a fee where the accused pleads guilty.
    Appeal from Sebastian Circuit Court, Fort Smith District; JohnE. Tatum, Judge;
    affirmed.-

      J. Sam Wood, for appellant.
    Only question involved in this appeal is whether or not the prosecuting attorney, being present and ready to prosecute, is entitled to a fee for conviction in a criminal case .in municipal -court, when charge filed by constable -and -conviction had on a plea of guilty. Act 203, Acts 1921, sec. 7; Brown v. Welch, 151 Ark. 142. “Prosecute” defined. Webster’s New International Dictionary. Court below denied tbe motion to retax costs because the prosecuting attorney did not sign, the affidavit or make the charge against the defendant, and erred in .so doing.
   Humphreys, J.

The purpose of this appeal is to determine whether the prosecuting attorney of the Twelfth Judicial District of Arkansas was entitled to a fee of $25 in the case of State of Arkansas v. Luther Staples, charged with and convicted of the crime of gambling, in the municipal court of the city of Fort Smith, upon the plea of guilty to the charge. The question to be determined was presented to the municipal court upon a motion to tax a fee of $25 for the prosecuting attorney of that district in said cause. The motion was overruled in the municipal court, and on appeal to the circuit court was denied and dismissed, from which latter judgment an appeal has been duly prosecuted to this court.

The motion was heard in the circuit court upon the following agreed statement of facts:

“On Sunday, January 28, 1923, the defendant, together with six others, was arrested by the sheriff and deputy sheriff of Sebastian County and the constable of Upper Township of Sebastian County, while engaged in a game of stud poker for stakes, and was placed in jail. Soon after the arrests were made the sheriff called J. Sam Wood, prosecuting attorney for the district in which Sebastian County is located, to the jail and told him about the arrests and informed him that the trial would be held the following day, the sheriff at the time making the statement that he was busy collecting taxes and did not have- time to attend the trial, and requested the prosecuting attorney to take charge of the case. On the morning of January 29th the prosecuting attornev went to the municipal court for the purpose of filing informations ag'aist the defendants and to prosecute the cases in behalf of the State. In the meantime' the constable had filed informations against the defendants. When the cases were-called for trial the prosecuting attorney was personally present and ready to prosecute the cases in behalf of the State. Three of the defendants (including appellee) when arraigned entered their pleas of guilty, whereupon each was fined $10 and costs (not including prosecuting attorney’s fees). The- other defendants when arraigned entered their pleas, through their attorney, of not guilty. The cases proceeded to trial, the prosecuting attorney representing the State, and, after hearing all the facts, the court assessed a fine against each of the defendants that pleaded not guilty of $10 and costs, including the prosecuting attorney’s fees.”

Prosecuting attorney’s fees are fixed by statutes in this State. In the Twelfth Judicial District the prosecuting attorney’s fees are governed by § 8310, Crawford & Moses ’ Digest, which is as follows: “In any criminal action pending before any justice’s court, where the defendant is charged with an offense mentioned in § 8308, by affidavit or otherwise, and shall plead not guilty, and shall secure the services of an attorney to represent him on the trial, it shall be the duty of the justice to cause the prosecuting attorney, or deputy, for such county to be notified of the nature of the charge, and the time and place of the trial, and such prosecuting attorney shall attend and prosecute in behalf of the State, and in case of conviction shall be allowed the same fee as is now allowed for similar eases in the circuit court. And no prosecuting attorney or his deputy shall receive any fee unless he personally appears and prosecutes in the case, nor shall any court tax any fee where such officer does not appear and personally prosecute.”

It will be observed that, under this statute, the prosecuting attorney, when present and prosecuting, is only entitled to a fee in a criminal case pending in said court, upon affidavit or otherwise, where the defendant pleads not guilty, employs an attorney to make his defense, and is convicted. Appellant contends that the prosecuting attorney’s fees in the Twelfth Judicial District are governed by § 4571 of Crawford & Moses’ Digest, which is a general'statute fixing prosecuting attorneys ’ fees, and providing that they should be entitled to the same fees in cases of misdemeanor before justices of the peace as in the circuit court when present and prosecuting cases either in person or by deputy. This statute was enacted on February 25, 1875, and subsequently amended, its purpose being to fix the fees of all parties serving the public. Section 8310, supra, was enacted on April 9, 1895, and provided the method by which prosecuting attorneys might earn fees in a certain class of cases which had been fixed by § 4571, supra. "We cannot agree with learned counsel that there is an irreconcilable conflict between the two statutes. The first fixes the fees for prosecuting attorneys in misdemeanor cases before justices of the peace when present and prosecuting, and the latter provides the particular manner in which the fees may be earned in a certain class of cases. In the instant case the defendant made no defense, so the prosecuting attorney was not entitled to a fee.

The judgment is affirmed.


text:
    Stroud v. American National Bank of Rogers.
    Opinion delivered April 30, 1923.
    1. Continuance — amendment op complaint. — In an action against the maker and an indorser of a note, an amendment of the complaint by inserting,, after the allegation that the indorser had indorsed the note in blank for valuable consideration, the words “and at the time of delivery,” did not change the issue or cause of action, so as to entitle the indorser to a continuance.
    2. Bills and notes — liability op maker and indorser. — The maker and an indorser of a note are initially liable for its payment, regardless of whether the note is secured by collateral.
    3. Bills and notes — indorsement—depense.—To a suit upon a note against an accommodation indorser thereof it is no defense that the holder of the note has colluded with the maker to make the indorser pay when the holder holds collateral out oí which it might make its money.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Sullins <& I vie, for appellant.
    The court erred in denying appellant’s motion for a continuance and also in sustaining the demurrer to paragraphs 5 and 6 of the answer and striking out amended paragraph 6. Should not have permitted appellee to .amend complaint by interlineation to allege that appellant indorsed the note at the time of its execution and delivery, thereby, in effect, changing the cause of action. 103 Ark. 473; 80 Ark. 285. The uniform negotiable instrument law changes the rule of the above cases. 8 C. J. 75, § 12. The court erred in directing a verdict. 82 Ark. 86; 86 Ark. 27; 95 Ark. 144; 97 Ark. 490; 99 Ark. 49. _ '

      Duty & Duty, for appellee.
    The amendment to the complaint by interlineation was not prejudicial, since it only expressed the legal effect uf the allegation before amendment made. Neither paragraph 5 or 6 of the owner stated a defense, nor did 6 after amendment, and no error in sustaining demurrer and motion to strike. 77 Ark. 55; 145 U. S. 205; Jones on Pledges, § 606. No proper showing made for continuance nor error 'committed in denying motion therefor. Rule in this State early promulgated allowing joint action against maker and indorser where mailing and indorsing of note were simultaneous acts. 15 Ark. 511; 17 Ark. 454; 24 Ark. 511; 94 Ark. 333; 124 Ark. 154; 3 R. C. L., 1135, § 350. Not changed by negotiable instrument law. Sec. 7830, Crawford & Moses’Digest. Appellant was in fact the maker of the note, and writing his name across the back of the note when it was executed and before delivery constituted him a joint maker. Cases supra and 180 S. W. 500; 34 Ark. 524; 80 Ark. 285; 77 Ark. 53; 14 L. R. A. (N. S.) 842, 3 R. C. L. 1127, § 342. There was no dispute about the facts, and the verdict was properly directed. 104 Ark. 267; 114 Ark. 574; 89 Ark. 24.
   Humphreys, J.

Appellee instituted suit against appellant and J. M. Henderson in the circuit court of Benton County to recover a balance of $4,000 principal and $74.80 interest, upon the following note:

“$4,500.00 • No. 2485.

“Rogers, Ark., Dec. 31, 1920.

“Feb. 1,1921, after date- — promise to pay to the order of the American National Bank at the office of the American National Bank in the city of Rogers, Arkansas, forty-five hundred dollars, for value received, negotiable and payable without defalcation or discount, with interest from maturity at the rate of 8 per cent, per annum, having deposited and pledged the American National Bank as security for the payment of this note and other indebtedness, whether as principal debtor or otherwise, due to the holder hereof

“O. K. Truck Co. stock certs. No. 4443 (41 shares).

“O. K. Truck Co. stock certs. No. 3122 (431).

“Collaterals in their possession now, or hereafter, or any substitute therefor.

“Now, in the event of the nonpayment of this note at maturity, or any other indebtedness due the holder hereof as aforesaid, the holder hereof is hereby invested with full authority to use, transfer, hypothecate, sell or convey the said collaterals, or any substituted for or added to the above, or any part thereof, or to cause the same to be done, at public or private sale, with or without notice or demand of any sort, at such place and on such terms as the holder hereof may deem best, and the holder of this notice is authorized to purchase said col-laterals when sold for his or its own protection; and the proceeds of such sale, transfer or hypothecation shall be applied to the payment of this note, together with all protests, damages, interest, costs and charges due upon the note, or incurred by reason of its nonpayment when due, or in the éxecution of this power. The surplus, if any, after payment of this note, together with all charges above stated, shall be paid to the drawer of the note, or, at the election of the holder thereof, be paid on any other obligation of the drawer thereof, whether as principal debtor or otherwise, held by the holder thereof; and, if the proceeds of the above sale shall not be sufficient to pay this note, the drawer hereof agrees to make good any deficit. In case of depreciation in the market value of any security pledged for this obligation I agree to furnish, on demand, additional security as and when demanded 'by the holder of this note.

“J. M. Henderson.

(Note indorsed on bask as follows):

“H. L. Stroud.”

Indorsement on interest:

“2-1..............................1921 $..........................to April 1, 1921.

“4-1..............................1921 $...........................to April 1, 1921.

“ 191 $...........................to ........................191 .

“April 1, 1921, By cash $500.

“July 22, 1921, Ex. 60 days.

“Aug. 22, int. pd. 30 days.

“9-15, int. pd. 30 days.

“Int. pd. to 10-1-21.

“12-30, int. pd. 90 days to 1-122.”

The original complaint filed by appellee contained the following paragraph, which constituted the gist of the action:

“Plaintiff states that on December 31, 1920, the defendant, J. M. Henderson, made, executed, and delivered to the plaintiff his promissory note in the sum of $4,500, due February 1, 1921, and that the defendant, H. L. Stroud, indorsed said note in blank for a valuable consideration, and that the money represented by said note, which was borrowed from this plaintiff, went to the defendant, H. L. Stroud, a copy of which note is hereto attached, marked Exhibit ‘A’ and made a part of this complaint and pleaded with the same force and effect as if specifically set out herein.”

Appellant filed an answer denying the allegations embraced in said paragraph, and as additional defenses pleaded matter contained in paragraphs numbered 5 and 6. which are as follows:

“ (5) Defendant, for further answer, herein, alleges that said note sued on herein is a collateral note, and that said note shows on its face that it is a collateral note, and that same is secured by considerable collateral security which plaintiff has failed and refused to dispose of, or attempt to dispose of, in any manner, for the pay' ment of said note, although repeated demands had been made by this defendant upon plaintiff to dispose of said security in the way and manner provided for in this note.”

“(6) Said defendant, for further answer, herein alleges that said plaintiff and defendant, J. M. Henderson, colluded together for the purpose of assisting said defendant, Henderson, and in evading the payment of said note, and for the fraudulent purpose of forcing this defendant to pay same.”

A special demurrer was filed to each of the paragraphs upon the ground that neither stated a defense, which demurrer was sustained by the court over the objection of appellant. At the same time appellee was permitted to amend the paragraph of the complaint set out above by inserting the words “and at the time of delivery” immediately after the word “consideration.” Appellant then amended said paragraphs 5 and 6 of his answer to read as follows:

“(5) Defendant, further answering herein, alleges that the note sued on herein is secured by collateral security as shown from the face thereof, and that said plaintiff still has in its hands said collateral security, and has wholly failed and refused and still refuses to foreclose or sell or dispose of said collateral security for the payment of said note, -but is holding and claiming said collateral security as its own, which collateral security is worth as much or more than the face value of the note sued on herein, and that .the same should be credited upon said note, which would pay said note in full, and this defendant therefore pleads payment of said note as against him as indonser on the note sued on herein.

“(¡6) This defendant further alleges that said plaintiff and defendant, J. M. Henderson, principal debtor on the note sued on herein, have fraudulently and corruptly and unlawfully conspired and colluded together in the filing- and prosecuting this suit as against this defendant, and that said plaintiff is holding said collateral security in an unlawful attempt to make this defendant, as indorser, pay said note and then to turn said collateral back to said defendant, J. M. Henderson, principal debtor on said note, and that, by reason of said unlawful and fraudulent conspiracy and collusion, that this defendant, as indorser aforesaid, should be released as such indorser, and that this cause as to this defendant be transferred to the chancery docket, which has the exclusive jurisdiction and protection of this defendant, under the facts as herein alleged.” On motion of appellee paragraph 6 of the answer was stricken out, over the objection of appellant. Appellant then moved the court to continue the ease for the alleged reason that the amendment, by interlineation of the words ‘ and at the time of the delivery,” changed the issue or cause of action. We think not. The note itself was made the basis of the action and controlled the allegations of the complaint. The note stood for itself, and appellant should have made preparation to interpose and establish all defenses he had thereto.

After the motion for continuance was overruled, the cause was submitted upon the issues joined and testi'mony adduced by appellee, which was, in substance, to the effect that the note sued upon was executed by J. M. Henderson and signed across the back by appellant. H. L. Stroud, at and before the time of delivery, .and that the money borrowed thereon was borrowed for and received by said H. L. Stroud. At the conclusion of the evidence appellee asked the court to direct the jury to return a verdict in its favor for the balance due upon the note, which request was granted, over the objection of appellant. The jury thereupon returned a verdict in favor of appellee for $4,074.80, mid a judgment was rendered in aecordanloe therewith. From the verdict and judgment an appeal has been duly prosecuted to this court.

. Appellant contends that the court erred in sustaining a special demurrer to paragraphs 5 and 6 of his original answer. We think not. The matter set up in the paragraphs did not constitute a defense for either maker or indorser of the note. A maker is initially liable for, and an indorser is a guarantor of, payment. Both are liable, irrespective of whether the note signed by them is secured by collateral. In the instant case appellee had a right to proceed against either or both, and to collect its money out of either or both of them. Appellee had the privilege of selling the collateral and applying the proceeds upon the note, but it was not bound to do so. It was no answer to the suit upon the note to say that the bank held collateral out of which it might make its money, or that the bank had colluded with the maker to compel him to pay the note. If appellant was merely an indorser for accommodation, as contended, he could have protected himself by paying the note and asking to be subrogated to the rights of the bank against the maker, and to the collateral. For the same reason given above it was not error to strike out the 6th paragraph of appellant’s answer as amended.

Appellant’s next and main contention for reversal is that the adoption of the negotiable instruments law in Arkansas changed the rule to the effect that one who signs a note on the back, at or before its delivery to the payee, becomes a joint maker thereof. Sections 7829-7830 of Crawford & Moses’ Digest are cited 'by appellant in support of this'contention. It is unnecessary for us to determine what effect the passage of the negotiable instruments larw had upon the rule alluded to. Appellee has pleaded-no defense to the suit upon the note, either as maker or indorser, except the plea of payment, which was not sustained by any substantial evidence. There was no evidence tending to show that the collateral had been sold or appropriated by the bank. Appellant did not plead or prove the failure of notice of nonpayment of the note or any other defense which would acquit an indorser. The defense of payment having failed for lack of proof and no other valid defense having been pleaded or proved, the court did not err in instructing a verdict against appellant.

The judgment is affirmed.


text:
    Beeson-Moore Stave Company v. Brewer & Story.
    Opinion delivered April 30, 1923.
    1. Frauds, statute op — executed parol contract. — The plea of the statute of frauds cannot avail against parol contracts of sale of chattels which have ’been fully executed.
    2. Contracts — breach.—Where a contract for the sale of staves required the buyer to make advancements on the staves in the woods, a breach by the buyer is shown where it is proved that the buyer refused to make further advances under the contract.
    3. Accord and satisfaction — acceptance of check. — Acceptance of a check, stated in an accompanying letter to be “balance due you according to -our books,” is not conclusive as to a disputed claim growing out of an alleged breach of contract.
    Appeal from Stone Chancery Court; Lymcm F. Reeder, Chancellor;
    .affirmed.

      Mehaffy, Donham S Mehaffy, for appellant.
    No liability under contract between appellees and Mabry & Son, which was not included in sale -to appellant nor assigned to it. Sec. 481, C. & M. Digest; 2 R. C. L. 625. Nor was there a breach of contract by appellant. There was an accord and satisfaction of all claims of appellees. 148 Ark. 512. Appellees not entitled in any event to recover for staves left in the woods, $1,400. Nor for the 205,000 staves never manufactured, nor for loss on timber purchased for -but not made into staves, $2,000. There is no testimony whatever to show any loss by inspection. Decree should be reversed, and cause dismissed.

      Ben B. Williamson and Rogers, Barber $ Henry, for appellees.
    The evidence shows that the contract between appellees and Mabry & Son was fully performed by them and appellant. Contract was breached by appellant’s failure to malee advances in accordance with its terms. There was no accord and satisfaction. 1 Words & Phrases, 44; 141 Mo. App. 5,121 S. W. 774; 148 Ark. 658; 129 Ark. 82.
   Humphreys, J.

Appellees instituted .suit against appellant in the chancery court of Stone County to recover $10,550, growing out of alleged breaches of contract for the sale and purchase of 800,000 white oak staves. It was -charged in the bill that appellant failed to make advancements upon 35,000 staves manufactured in the woods, or to properly inspect -others a,t shipping points. The items of damage alleged were $6,150 profit on 205,000 staves, $1,400 cost of manufacturing 35,000 staves left in the woods, $2,000 on timber purchased to make 205,000 staves, and $1,000 resulting from wrongful inspection.

Appellant filed an answer denying the material allegations of the bill, and pleaded the statute of frauds in defense of the contract existing between appellees and Mabry & Son on January 14, 1920.

The case was submitted to the court upon the pleadings and testimony, which resulted in a judgment in favor of appellees for $6,150, from which is this appeal. The record reflects the following summary of facts: On the 14th day of January, 1920, appellees entered into a written contract with H. S. Mabry & Son to make and deliver to them, before January 1, 1921, at designated points 300,000' white oak staves of certain dimensions at fixed prices. The contract contained a provision for an advance of $50 per 1,000 pieces, made, bucked and stacked on yard in the woods, and for inspection “mill run, culls out,” at shipping point, and for payment in full when on board cars ready for shipment. On the 7th day of February, 1920, H. S. Mabry & Son sold their entire stave mill business, including three mills, equipment and commissaries at different places on the Missouri Pacific and North Arkansas railroads. Among the assets transferred by Mabry & Son to appellant was an account of $1,200 ■advanced by Mabry & Son to appellees on the stave contract of date January 14, 1920. After the sale of the Mabry stave business to appellant, advances were made by it to appellee, and a large number of staves were delivered and received under the stave contract aforesaid prior and up to July 10, 1920. On that date 153,000 staves had been delivered and paid for, and the balance were made up in the woods. Appellant had made advances on those in the woods. On July 10,1920, appellees entered into a written contract with appellant to make and deliver to it, at designated shipping points, 500,000 white oak staves of certain dimensions, at fixed prices. This contract contained the same clauses with reference to advances and inspection contained in the contract of January 14, 1920. The latter contract was a copy of the first contract, except names and amounts. The testimony is conflicting as to whether the last contract was for 500,000 additional staves or whether it included the 147,000 staves in the woods upon which appellant had already made advances. After the contract in July was executed, appellees delivered about 370,000 staves to appellant, making a total of about 595,000 delivered by them to it. Deliveries and shipments ceased in March, 1921. Disputes arose between the parties as to the manner of inspection and concerning advances upon staves in the woods. On January 28, 1921, appellant wrote appellees the following letter:

“Little Rock, Arkansas, January 28, 1921.

“Brewer & Storey, Mountain View, Ark.

‘ ‘ G-entlemen: Our Mr. Hurt has just come and told us that you would not accept inspection that he put on the staves and load them out, which is quite a surprise to us. We are going to put an association man on these staves and sée whether Mr. Hurt is right or wrong in regard to culls, and then, if you do not want to accept the association man’s inspection, I suppose there is no other way to settle this except through legal proceedings. We are certainly going to have staves clear from this date on. In reg'ard to advance, your contract calls for $50 advance in the woods, which of course we have not given you, as I do not know that you particularly asked for it. We could not advance on these when you refused to take our inspection. Another thing, too, I do not see any use of making advance when stave® are on the R. R. We told you we would pay for them as fast as they were loaded in cars and the doors sealed, hut will not malte advances on the staves on the R. R. under the present conditions.

“Yours very truly,

“ Bbeson-Moore Stave Company,

“By E. W. Beeson, President.”

Beeson and Storey met at Sylamore in February and had quite a wrangle over the inspection. Beeson insisted upon and enforced the letter of the contract relating' to inspection. It seems that Mabry and their inspectors had accepted the lots of staves theretofore delivered when they did not contain more than .six per ©ent. culls. Beeson’s claim, under the contract, was that the staves should he free from culls. Brewer and Storey both testified that they demanded advances on staves which they had manufactured in the woods, and, being unable to get the advances, shipped only about 100,000 staves after the meeting in February; that appellant refused to make further advances on staves, and failed to pay them the full 'amount on staves which it had inspected; that it did not pay the balance due on the staves accepted by it until October, 1921; that, on account of the refusal to make further advances on staves in the woods, they were compelled to shut down; that when they shut down there were 35,000 staves in the woods ready to be bucked and stacked in the yards. In October, 1921, appellant inclosed its check for $905.42 in the following letter:

“October 12, 1921.

“Brewer and Storey, Mountain View, Ark.

“Gentlemen: Inclosed please find our check for $905.42, which is balance due you according' to our books. If this is not in line with your books, we will thank you to let us know at once.

“We want to ‘thank’ you and want you to know that we certainly have appreciated your kindness to us in letting us just take our time to pay you this account, as we have seen some pretty hard places in the last year.

“Again accept our thanks, and we hope to some day be able to do some more business with you. Best regards to you and your families.

“Yours very truly,

“Beeson-Moore Stave Company,

“By Cashier.”

Appellees made no reply to the letter, but accepted and cashed the check. Appellees testified that the check was accepted by them in settlement of the staves which had been delivered; that, in accepting it, they had no intention of waiving their claim of damages growing out of the alleged breach of contract on the part of appellant. Beeson testified that his purpose in sending the check was to settle in full all claims arising out of the contract.

Appellant’s first insistence for reversal is that the court erred in holding it liable" to appellees upon the Mabry contract.. It is argued that the Mabry contract was in writing, and. that no indorsement appears thereon, showing a sale, transfer, or assignment thereof to appellant, and that it was not referred to and included in the written contract of sale and purchase between appellant and Mabry & Son. We deem it unnecessary to discuss the questions .suggested, because, according to the decided weight -of the evidence, the Mabry contract was completely carried out and executed by appellant. When Mabry & Son sold their stave business to appellant, Mabry was made general manager and left in charge thereof. He testified that the contract was taken over by appellant and fully and completely performed by it. He was corroborated in this statement by appellees and W. H. Thomas, the bookkeeper, both before and after Mabry & Son sold their business to appellant. Mr. Mabry testified that he made the contract on July 10, 1920, between appellant and appellees, at the request of Mr. Beeson, because the staves contracted for under the first contract had been made; that the second contract was for 500,000 additional staves, and wholly independent of the first contract. We are convinced that the delivery of staves to the number of 147,000 immediately after the execution of the second contract was in fulfillment of the first contract, and that the first contract was fully performed. The plea of the statute of frauds cannot avail against parol contracts which have been executed.

Appellant’s next insistence for reversal is that the court erred in finding that it breached the contract of July 10, 1920. It is shown conclusively by the evidence that appellant did not pay for the last staves received by it for ten months after being inspected and placed on board cars. The last delivery was in February o.r early in March, 1921, and payment in full for the staves delivered was not made until the following October. It is also certainly revealed by the evidence that appellees permitted appellant to take all the staves which had been placed in the yards at the shipping points upon appellant’s inspection. No staves were withheld by the appellees on account of the inspection made by appellant. This being true, there is nothing in the record showing a breach by either party on account of the inspection. Appellant argues that, under the terms of the contract, it was not required to make advancements on the staves in the woods until they had been bucked and stacked in the yards. It is true that a provision to this effect is contained in the contract, and also true that 35,000 staves in the woods had not been bucked and stacked in the yards at the time appellees shut down the manufacture of staves. According to the weight of the evidence, appellant, through its president, E. W. Beeson, notified appellees that it would not make further advances under the contract.

Appellant’s last insistence for reversal is that the acceptance of the check for $905.42 was an accord and satisfaction. The letter, on its face, restricted the settlement to what was shown on the books. It did not pretend to include an adjustment of the disputed claim growing out the alleged breach of contract. Unless the settlement was intended to include all demands arising out of the transaction between the parties, the delivery and acceptance of the check could not be regarded as an accord and satisfaction. Barham v. Bank of Delight, 94 Ark. 158; Barham v. Kizzia, 100 Ark. 251; Longstreth v. Halter, 122 Ark. 212. No condition was imposed in the face of the check or the letter in which it was inclosed to the effect that the check was tendered in full settlement of the disputed claim growing out of a breach of the contract on the part of appellant. As stated above, the check was sent in full settlement of the amount due appellees for staves which had been delivered to appellant as shown by the book account.

The decree is affirmed.