text:
    Smith v. Freeman.
    Opinion delivered December 19, 1927.
    1. Taxation — redemption of lands sold at tax sale. — Where the statute providing for the mode of redemption of lands sold for ■general taxes was complied with, except that the county clerk acted for the county treasurer in receiving the redemption money and executing the receipt therefor, held that there was a substantial compliance with the statute, and that the redemption was effective, especially where the tax purchaser was not prejudiced by the irrgularity.
    2. ■ Taxation — redemption from tax sale. — Redemption of land from a tax sale under the statute was effective, though the county clerk, acting for the county treasurer, accepted a check from, the owner instead of cash.
    Appeal from Garland Circuit Court; Bari Witt, Judge;
    affirmed.

      Cobb •& Cobb, for appellant.

      Murphy & Wood, for appellee.
   Smith, J.

Appellant brought five suits in the Garland Circuit Court against appellee Freeman, as the clerk of the county court of that county, to compel him to issue tax deeds for lands sold to appellant for the nonpayment of the general taxes for the year 1922. Gwners of the respective tracts of land thus sold -were made parties to the several suits. Appellant alleg-ed his purchase of the various tracts of land at the tax sale; that he had received certificates evidencing such purchase; that the time for redemption had expired, and that redemptions had not been perfected; that he had presented his certificates of purchase to the clerk and demanded deeds in exchange therefor, with a tender of the fees allowed the clerk by law, and that this demand had been refused, wherefore mandamus was prayed requiring the clerk to execute deeds.

An answer was filed by the clerk, alleging that each of the tracts had been-redeemed by the respective owners. The court found the fact so to be, and dismissed the suits, iand this appeal is from that order and .judgment.

There appears to be no substantial controversy about the facts, which may be briefly stated as follows: Appellant liad for many years been engaged in buying lands at tax sales, and in these operations was represented by Jack Hudgins, an experienced land man, who was -thoroughly familiar with all the public records, and especially so with the tax records. Appellant furnished the money with which delinquent lands were purchased, and Hudgins attended to all the details of the' same, including the bidding in of the lands, the collection of redemption money when redemptions were effected, and the procuring of deeds where no redemptions were made, and as compensation for his services he was given a one-third interest in all lands for which tax deeds were obtained.

■Section 10100, C. &M. Digest, provides the “mode of redemption” of lands sold for general taxes. Its provisions are that: “Any owner * * * desiring to redeem any land * * '* sold for taxes * * * may, within the time limited by law for such redemption, deposit with the county treasurer, upon the certificate of the clerk of the county court describing such land, * * * an amount of money equal to the taxes for which such land * * * was sold, together with penalty and cost and the taxes subsequently paid thereon by such person, * * * with interest at the rate of ten per centum per annum on the whole amount so paid, and the county treasurer shall, upon the payment of said sum, within ten days thereafter notify the purchaser that said sum is in the treasury and subject to his order.”

Section 10101 prescribes the “duty of county treasurer.” Its provisions are that: “Upon the presentation of such certificate of the clerk of the county court to the county treasurer, and upon the payment of the money to the treasurer as aforesaid, he shall give the person making such payment duplicate receipts therefor, describing the land * * * as the same is described in or upon the certificate of the clerk of the county court aforesaid, one of which receipts shall be registered by the treasurer and immediately filed with the clerk of the county court by the person receiving the same, and thereupon the clerk of the county court shall forthwith cancel the sale and transfer such land, * * * and such receipt when so filed shall operate as an extinguishment of all rights, either in law or equity, conferred in any way or manner by such sale. ’ ’

Section 10102 prescribes the “duty- of the county clerk.” Its provisions are that: “In all cases where such deposits shall be made within two years from the time of sale of such lands for delinquent taxes, the clerk of the county court shall, at the request of the person presenting the receipt of the county treasurer for such deposit, note such fact on the back of said certificate, and .sign his name thereto. When any tract * * * is thus redeemed, or any deposit with the county treasurer is thus made, it shall be the duty of the clerk of the county court to note such redemption or deposit, the date thereof, and by whom made, on his record of tax sales, and sign his name officially thereto. ’ ’

Appellant insists there has been no substantial compliance with these provisions of the statute, but the testimony establishes the following- facts: The respective landowners applied to appellee, as county clerk, to redeem their forfeited lands. The clerk made out the proper certificates of redemption and advised the -owners the amounts necessary to effect-a redemption, including the fee .of the clerk, and this sum was paid to the clerk by the owner, and the clerk signed the receipt acknowledging the payment of the money in the name of the county treasurer, and the clerk, thereupon made the notations upon the. records required by the .albove-quoted sections of the statute.

The clerk testified that he signed the name of the treasurer with the knowledge and consent and by the express authority of that official, and that he held the money thus paid to and for the use o-f the treasurer until it was actually delivered to that official. The county clerk further testified that his office and that of the county treasurer were in adjoining rooms, with -a connecting door, -and that each was in the other’s office very frequently. At the time of the attempted redemptions the treasurer was an invalid, and was receiving treatment in connection with the baths at Hot Springs every other day, and these treatments consumed a large part of the afternoon on the days when they were administered, and during such times the treasurer was absent from his office.

All of the redemptions were effected in the manner above stated, well within the time allowed by law, except in the case of one owner, who applied to redeem his land the day before the expiration of the two-year period allowed by law for redemption. Hudgins was present on this occasion,' and, when the owner had received his redemption certificate, signed by the clerk as such, and by the clerk in the name of the treasurer, Hudgins protested that a proper redemption had not been effected, for the reason that a check, and not money, had been paid, but the clerk testified that he received the check as cash, and that he would then have paid Hudgins the amount due appellant -on the redemption of the land in cash had.Hudgins been willing to receive it, but Hudgins admitted' that he did not ask for the money, and did not want it; that what he did want was a deed to that and the other land.

It was not shown that the tax purchaser was not properly advised of the various redemptions; indeed, the clear implication from all the testimony is to the contrary in each case, it being the admitted purpose of the purchaser to demand deeds upon the theory that the law had not been complied with in effecting the redemptions.

It was shown that the custom in regard to redemp- ■ tions stated above had prevailed in that county for many years, and Hudgins had been engaged in buying lands at tax sales for more than twenty years, was familiar with this custom, and had frequently been paid redemption money by the clerk for the treasurer.

Of course, this testimony could not change the law, but it -does show that appellant and his agent were advised of the maimer in which the redemptions in question were effected, and that appellant could have had the return of the. money due him at any time after the attempted redemptions, but Hudgins candidly admitted that he wanted the land, and not the money.

There was a literal compliance with the statutes quoted, except the receipt of the money 'by the clerk for the treasurer, instead of the payment to and the execution of the receipt for the money by the treasurer himself. ¡But we think, under the facts stated, that there was such a .substantial compliance with the statute as to make the redemptions effective, and that the court below was correct in so holding. • The money reached the hands of the officer entitled to its custody, and the tax purchaser could have had his money had he been content to take it. None of his rights were prejudiced by the irregular manner in which the money reached the treasurer’s hands.

The check above referred to was paid in due course, but it was accepted by the clerk at his peril, and it is unnecessary to decide whether he could • have canceled the redemption had the check been dishonored, as it was piaid.

The judgment of the court below is correct, and it is therefore affirmed.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Cone v. Garner.
    Opinion delivered November 14, 1927.
    • 1. Taxation — fees of assessor — liability of state. — Acts 1889, p. 12, requiring the State to pay half of the county assessor’s compensation, means either salary or fees, and may include also the expenses of making land assessments, half of which the State must pay under Acts 1919, p. 348.
    2. Taxation — authority to assessors to employ additional deputies. — Acts 1925, p. 160, § 2, authorizing the county court, on application of the assessor, to grant authority to employ additional deputies or assistants at salaries to be fixed by the assessor, is void as delegating the power of the Legislature.

      3. Statutes — salary of county assessors' — effect of partial invalidity. — Acts 1925, c. 51, providing for the assessor’s salary and for the number of deputies with their salary, is a complete act without § 2, whose invalidity does not affect the remainder of the act.
    4. Statutes — partial invalidity. — Where the unconstitutional portion of an act is severable, and there is a complete act without it, the fact that one section or one portion of' it violates the Constitution does not necessarily invalidate the entire act.
    5. Constitutional law — local bul. — Acts 1925, c. 51, § 2, fixing the salary of a county assessor and authorizing the employment of deputies, though a local act, is not invalid, having been passed prior to the adoption of constitutional amendment prohibiting the passage of local bills.
    6. Taxation — compensation of county assessor. — Although Acts 1925, c. 51, § 3, requires all fees, penalties, and other compensation then allowed the county assessor to be paid to the county treasurer, the assessor’s necessary expenses incurred in the performance of his official duties, are part of his compensation, half of which must be paid by the State under Acts 1889, p. 12, and Acts 1919, p. 348.
    7. Statutes — germane amendment. — Acts 1919, p. 348, which abolished the township boards of assessment in certain counties and created county boards of equalization, in providing that half of the expense of the real estate assessment shall be paid by the State and the other half by the county, is not such an alteration as to change the purpose of the bill, contrary to Const., art. 5, § 21.
    8. Statutes — amendment.—The purpose of art. 5, § 21, of the Constitution, prohibiting the altering or amending of a bill on its passage through either house so as to change its purpose, was to prohibit amendments not germane to the legislation expressed in the title of the act amended.
    9. Taxation — constitutional limit of salary of assessor. — Const., art. 19, § 23, limiting the salaries of county and State officers, does not invalidate Acts 1889, p. 12, and Acts 1919, p. 348, requiring the State to pay half of the compensation and expenses of a county assessor for making assessments, since the salary of such officer is fixed at a certain amount, and the excess thereof cannot be retained by the assessor.
    10. Mandamus — presumption in absence of contrary showing.— On appeal from, an order requiring the State to pay half of the compensation and expenses of the county assessor for making assessments, under Acts 1925, c. 51, § 2, which section is invalid, in the absence of a showing in the record that part of the assessor’s expense was because of assistants or deputies employed under § 2, it will be assumed on appeal that the compensation or expense in question was legally incurred.
    11. Constitutional law — policy op legislature. — The policy of legislation and its expediency are questions peculiarly within the province of the Legislature, and the courts cannot hold an act void because it may be thought to be bad policy.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellant.

      Emerson-, Donham <& Eulh, for appellee.
   Mehaeey, J.

The appellee filed in the Pulaski Circuit Court the following petition for a writ of mandamus :

“Plaintiff is the duly elected, qualified, commissioned and acting tax assessor of Pulaski County, Arkansas, and the defendant is the duly elected, qualified, commissioned and acting Auditor of State for the State of Arkansas.
“Under the provisions of act 51 of the Acts of the General Assembly for the year 1925, fixing the compensation to be paid assessors in counties having a population in excess of 75,000 persons as shown by the last Federal census, plaintiff and his assistants are entitled to the sum of $25,000 for compensation in making the assessment of the real and personal property for taxation in Pulaski County for the year 1927; and, under the provisions of act 14 of the Acts of 1889, one-half of the assessor’s compensation for making the assessment of real and personal property is required to he paid by the State of Arkansas, and the other half by the county. Under the provisions of act 477 of the Acts of 1919 it is specifically provided that one-half of the expense of the real estate assessment shall be paid by the State and one-half by the county, which act further provides that the county court shall draw its warrant on the county treasurer for one-half the amount due the assessor, and that it shall, at the same time, certify to the Auditor of State the amount due said assessor on the part of the State, the same being one-half of the total amount due said assessor; and that thereupon the State Auditor shall draw his warrant on the State Treasurer for said amount.
“Plaintiff states that the expense of assessing the real estate in Pulaski County for the year 1927 was $16,185, one-half of which has been paid by Pulaski County. Plaintiff further states that, on August 29,1927, the county court of Pulaski County, pursuant to the provisions of the above statutes, certified to the defendant, as State Auditor, the amount due plaintiff from the State of Arkansas for making said assessment in the sum of $8,092.50, ia certified copy of said' order and certificate being attached hereto, marked exhibit A and made a part hereof; that plaintiff presented said certificate to the Arkansas Tax Commission, which said Commission approved same for payment in the sum of $8,092.50, as shown by the indorsement thereon, and that thereafter plaintiff presented said certificate to the defendant and requested him to draw his warrant on the State Treasurer in favor of plaintiff for said amount, but that said defendant declined and refused to do so, and continues to decline and refuse to draw his warrant on the State Treasurer in favor of plaintiff, for the expense of making said assessment, for any sum in excess of $75.”

There was a prayer for a writ of mandamus ordering appellant to issue his warrant for one-half the expense of assessing the real estate in Pulaski County.

Attached to and made a part of the petition for mandamus was the following-order of the Pulaski County Court:

‘ ‘ On this day is presented to the court the duly verified claim of W. H. Grarner, assessor of Pulaski County, Arkansas, against Pulaski County and the State of Arkansas, in the sum of $16,185, for services rendered by him in making the assessment of real property for taxation in said county for the year 1927, and, upon examination and consideration of said claim, it appearing to the court that the same is just and correct, it is ordered that the same be and is hereby allowed and ordered paid, one-half the amount thereof, or the sum of $8,092.50, to be paid by the State of Arkansas, and one-half the amount thereof, or the sum of $8,092.50, to be paid by the county of Pulaski, and the clerk of this court is ordered and directed to draw his warrant on the treasurer of Pulaski County, in favor of said W. H. Garner, for the sum of $8,092.50, payable out of any money in the treasury appropriated for the expense of ‘ assessment and tax-books,’ and it is further ordered that a duly certified copy of this order be delivered to the Auditor of the State of Arkansas, as his authority for payment by him to the said W. H. Garner of the sum of $8,092.50, the amount due by said State for making said assessment.”

The above -order was certified to by the clerk as a true and correct copy of the order of court.

'The Attorney General filed the following demurrer:

“Comes the defendant, J. Carroll Cone, Auditor of State, and demurs to the petition for writ of mandamus in the above styled cause, and for cause states that the complaint does not state facts sufficient to constitute a cause of action.”

Thereafter the circuit court entered the following judgment :

‘.‘On this day comes the plaintiff by his attorneys, Emerson, Donham & Pulk, and comes the defendant by Honorable John L. Carter, Assistant Attorney General; and the defendant herein files a demurrer to plaintiff’s petition, which demurrer, being duly presented and argued before the court, and the court being well and sufficiently advised in the premises, doth overrule same, to which action of the court in overruling said demurrer defendant at the time duly excepted, and asked that his exception be noted of record, which is done. Whereupon, the defendant electing to stand upon his demurrer, and declining to plead further, the cause was submitted to the court upon the verified petition of plaintiff and exhibits thereto; and the court, after hearing argument of counsel, and being well and sufficiently advised in the premises, is of the opinion that the prayer of said petition should he granted.
“It is therefore by the court considered, ordered and adjudged that the defendant, J. Carroll Cone, as State Auditor, be and he is hereby directed to draw his warrant upon the' State Treasurer in favor of plaintiff for the sum of $8,092.50, for one-half the expense of assessing real estate in Pulaski County, Arkansas, for the year 1927, and deliver same to plaintiff.”

To reverse this judgment the State prosecutes this appeal.

Appellant contends that the act of the Legislature under which appellee began the action provides for the payment of one-half of the assessor’s compensation, whereas the petitioner seeks to collect one-half of the expenses.

Compensation which is used in the sense of reimbursement means either salary or fees, and it may also include expenses.

It was held by the New Jersey court that the surplus of moneys furnished the sheriff by the county for the policing of the .jail, after paying the salaries of the deputy keepers, comprised compensation for services rendered as custodian of the jail, and therefore, under the above act of 1905, belonged to the county. Board of Chosen Freeholders of Hudson County v. Kaiser, 75 N. J. Law 9, 69 Atl. 25.

It was held by the Kentucky, court that compensation included all amounts paid for any services required to be performed by the officer.

The word “compensation,” as used in the session laws of 1909, chapter 240, providing that county game wardens shall receive such compensation as the .State Game Warden shall determine, but shall not exceed $50 per month, includes amounts paid for expenses incurred as well as for services rendered, and such compensation cannot in any one month exceed $50. Jenkins v. Holstrom, 30 S. D. 192, 138 N. W. 12.

There are numbers of cases in Words & Phrases, from which we have copied above, which show that salary or compensation means whatever the officer may receive, including the expenses incurred by him, and, when he incurs expenses in assessing property or in any other way in the performance of his official duties, reimbursing him for the money thus expended is compensation, the same as salary or fees received by him.

It is next contended by the 'State that § 2 of act. 51 of 1925 is void, because it authorizes the county court, on application of the assessor, to grant authority to employ additional deputies or assistants at salaries to be fixed by the assessor,' and cites the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45. The court there said: “The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function which, within the limits of the 'Constitution, is lodged in the supreme lawmaking power of the State — the Legislature.” The court cites numerous authorities supporting this declaration of law.

Section 2, as contended by the Attorney General, we think, is void, and the reason given by the court in the ease of Nixon v. Allen, supra, applies equally in this case_ to § 2.

Act 51 of the Acts of 1925, however, is a complete act without § 2. It provides for the assessor’s salary, and for the number of deputies with their salaries, and is a complete act without § 2, and, since that is true, the fact that § 2 is void does not affect the remainder of the act.

This court has many times held that, where the unconstitutional portion of an act was severable, where there was a complete act -without it, the fact that one section or one portion of it violated the Constitution did not necessarily make invalid the entire act, and, in the case of Nixon v. Allen, supra, this court said (quoting from Cooley’s Constitutional Limitations):

“If a statute attempts to accomplish two or more objects, and is void as to one, it may istill be in every respect complete and valid as to the other. But, if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invialid portion. And, if they are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them. ’ ’

The court, in addition to quoting from Cooley’s Constitutional Limitations, cites a number of authorities.

It will readily be seen by an inspection of act 51 that § 2 is not dependent, conditional or necessarily connected with the rest of the act in any way.

It is next contended by the Attorney General that, notwithstanding the Legislature undertook to make this a general act, it is purely local, and calls attention to the case of Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335. The Attorney General, however, does not contend that the act is void, eveii if a local act, and we think it is immaterial whether the act was general or local. It was passed prior to the adoption of the constitutional amendment prohibiting the Legislature from passing local bills, and is valid, even though a local bill.

Appellant calls attention to § 3 of the act, which provides that “all fees, penalties and other compensation now allowed such assessor shall be by him paid quarterly unto the county treasurer, taking his receipt therefor,' one copy of which receipt shall be retained by the treasurer, one placed on file with the county clerk, and one retained by said assessor.” He then argues that it is clear that it was not the purpose of the Legislature to abolish fees, penalties, etc.

That is true with reference to all, or nearly all, of the acts of the Legislature fixing salaries for county officers, instead of fees. In all cases they are required to -.collect the same fees that the law required them to collect before the passage of the law putting them on a salary and to turn the fees so collected over to the county treasurer. In some instances the law requires that they be paid from the fees collected; in others they are paid salaries by the county without regard to the amount of fees collected. The fees collected might be more or less than the salary fixed by the Legislature.

We think, however, that the Legislature, in passing the law, intended that one-half of the compensation should be paid by the State, and that it is wholly immaterial whether the officer’s compensation was fees or salary, and, whether fees or salary, the -necessary expenses incurred in the performance of his official duties are part of the compensation. .

It is next contended by appellant that the act of 1919 violates § 21 of article 5 of the Constitution of Arkansas, which provides that “no law shall be passed except by bill, and no bill shall be so altered, or amended on its passage through either House as to change its purpose.” And it is then argued that there was an amendment providing that one-half the expenses, etc. The appellant argues that the purpose of the original act, as reflected by the title of the act. as well as the act itself, was to abolish township boards of assessment and valuation, and to create a board of equalization in all -counties of the State having a population in excess of 75,000 persons, and that there is nothing in the act which has to do with-the duties of assessors, but the act deals exclusively with the question of the creation, powers and duties of the board of equalization.

One of the duties of the equalization board was to fix the valuation of property in the county, that is, to assess the property.

Subdivision (1) of § 6 of act 177 of 1919 provides: “It shall raise the valuation of such property as, in the opinion of the board, has -been returned below its true value, to such sum or amount as may be deemed its true value. Members of the board may actually enter upon and view any property as to the true value of which they may not be fully satisfied.”

The next subdivision provides for reducing valuations. Then there is a provision for appeals.

All these provisions have to do with the assessment of property in the county.

But our ¡Constitution does not provide, like many constitutions, that each bill shall have a title in which shall be expressly stated the purpose of the bill, or any words to that effect.

In a very recent case this court said: “It is obvious that the title is not as broad as the act, but there is no provision in our Constitution to the effect that the caption of an act must indicate all the subject-matter embraced in the act itself.” Huff v. Udey, 173 Ark. 464, 292 S. W. 693.

We think the amendment was germane, and that the purpose of the act was not altered or amended on its passage as to change its original purpose.

It is said that the object of this section of the Constitution was that the Senate and House of Representatives of the State might not be hampered or embarrassed in amending and perfecting their bills and thus be driven to accomplish by a number of bills that which might well be 'accomplished by one hill, but 'the purpose of the section was to forbid amendments which should not be germane to the subject of legislation expressed in the title of the act which it purports to amend. Hickey v. State, 114 Ark. 526, 170 S. W. 562.

It is next contended that, if it were admitted that the State could be made to pay half the salaries, the expenses in excess of such salaries would be in conflict with article 19, § 23, of the Constitution. The fact that the State pays it, or the county pays it, would certainly make no difference, because the officer’s salary is fixed at-a certain amount, and he cannot lawfully retain anything above the amount fixed by the Constitution. His expenses, however, might be more than the constitutional limitation as to salary, and certainly he would be entitled to compensation for expenses and to the salary fixed by the Legislature not in excess of that allowed by the Constitution.

While we have held that § 2 is void, there is nothing in the pleadings and nothing in the record anywhere to indicate that any part of the expense of the assessor is because of any assistants or deputies provided for in § 2 of the act, and, in the-absence of anything in the records to the contrary, we, of course, assume that the compensation or expense is that incurred under the act, which we hold is valid, except § 2.

The Legislature evidently intended to provide for one-half of the compensation to be paid by the State, and it had authority so to provide. It also has authority at any time to repeal or modify this law,- if it is unjust or unfair, the Legislature can, and doubtless will, remedy it. The courts cannot hold an act void because it may he thought to be bad policy. The policy of the legislation, 'the expediency of it, are questions peculiarly within the province of the lawmaking power.

It follows from what we have said that the judgment of the circuit court must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Ward v. State.
    Opinion delivered December 19, 1927.
    1. Larceny — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of grand larceny.
    2. Criminal law — severance—trial.—■ Where defendant and another were jointly indicted for grand larceny, a severance to the trial was properly allowed, under Crawford & Moses’ Dig., § 3141.
    3. Larceny — variance.—An indictment charging the theft of a set of tools was not too general to charge the crime, and proof of particular tools stolen did not constitute a variance between the allegation and the evidence.
    4. Criminal law — evidence of co-defendant. — In a prosecution for grand larceny, it was permissible for the State to use as a witness against defendant one jointly indicted with him, where such witness voluntarily testified.

      5. Criminal law — statement op court. — Where defendant and another were jointly indicted for grand larceny, and the cases were properly severed under Crawford & Moses’ Dig., § 3141, the statement of the trial court, at a time when the competency of accomplice’s testimony was questioned, that defendant was arrested first, and case against his accomplice was not returned until afterward, and the jury could try one “when you get him before you get the other one, and' that is what we are doing now,” held not prejudicial to defendant.
    6. Criminal law — relevancy op evidence. — Where a defendant and another were jointly indicted for grand larceny, and the cases were severed, and the co-defendant testified for the State as a witness, and the trial court stated that defendant was first arrested, and the accomplice was not brought in until afterwards, refusal to allow defendant to prove the time and circumstances of the arrest was not error, since the time of accomplice’s arrest was immaterial.
    7. Criminal law — relevancy op evidence. — In a prosecution for larceny of automobile accessories, refusal to permit defendant to show iby a witness that he refused to go with the co-defendant to steal automobile accessories the evening before the property alleged to have been stolen was taken, was proper, it being collateral and incompetent.
    Appeal from Howard Circuit Court;. B. E. Isbell, Judge;
    affirmed.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Howard County for the crime of grand larceny, and, as a punishment therefor, wias adjudged to serve a term of two years in the State Penitentiary, from which is this appeal.

Appellant has filed no brief, but, in the motion for ■a new trial filed by him in the circuit court, he challenged the sufficiency -of the evidence and law to sustain the judgment.

Appellant was indicted jointly with Alvin Cecil for stealing one inner tube of the value of $2, one rim of the value of $2.50, one casing of the value of $20, and one set of tools of the value of $10, from Doctor J. I. Philpot. The undisputed evidence showed that the property in question was stolen from Dr. J. I. Philpot on the night of the 27th day of May, 1927, and that it exceeded $10 in value.

' Alvin Cecil, appellant’s brother-in-law and alleged accomplice, voluntarily testified that appellant came to his house on the afternoon of May 27, 1927; that, early in the evening, they went in witness’ oar to Umpire, where appellant got. out; that witness went to Boone Morris ’ home, a mile and a quarter southwest of Umpire; that witness returned between eleven and twelve o’clock, overtaking appellant 200 yards from Umpire, in sight of Dr. Philpot’-s home; that appellant had a casing-, tube, rim and some tools, which he put in witness’ car; that he told witness that he had got them off Dr. Philpot’s car; that witness let appellant have his car to take them away.

Other witnesses testified to facts and circumstances in corroboration of the testimony of Alvin Cecil.

There is sufficient evidence in the record to sustain the verdict and judgment.

We have carefully examined the instructions given by the court" and have concluded that they fully presented the issues and correctly declared the law applicable to the facts in the case.

The motion filed by appellant for a new trial in the circuit court assigned other alleged errors, which will be determined in the order mentioned.

First. Appellant alleged ias error the severance of the joint charge against Alvin Cecil and himself. This was allowable under § 3141 of Crawford & Moses’ Digest, which is as follows:

“When two or more defendants are jointly indicted for any criminal offense, the attorney of the State may sever the trial of such joint defendants when he deems it proper.”

■Second. Appellant alleged as error the admission of the testimony of Dr. Philpot with reference to missing a kit of tools consisting of wrenches, screw-drivers, hammers, etc., because the indictment did not mention’ or describe any particular tools. The indictment was not too general to charge a crime, and proof of particular tools did not constitute a variance between the allegation and the evidence.

Third. Appellant alleged ias error the refusal of the court to allow him to prove by Claude Fair that Alvin Cecil, the State’s main witness, had attempted to get Fair to go with him and steal some automobile accessories the afternoon before Dr. Philpot’s property was stolen. Later on in the trial the court allowed Fair to testify to this fact, so it becomes unnecessary to pass upon the alleged error of the court in first excluding the testimony.

Fourth. Appellant alleged as error the use of Alvin Cecil as a witness for the State, on the ground that he was jointly indicted with appellant. It is permissible to use an accomplice as a witness against his co-defendant if he voluntarily testifies, as Alvin Cecil did in the instant case.

Fifth. Appellant alleged as error the statement made by the trial court at the time the competency of Alvin Cecil’s testimony was' questioned. The statement is as follows:

“Roy Ward was arrested first, and his name was put on the docket first. There are two distinct cases. The returns were first made on Roy Ward, and he was brought in. The case against the other man was not returned until this morning. You can try one when you get him before you get the other one, and that is what we are doing now.” No prejudice resulted to appellant on account of the statement, as the prosecuting attorney had a right to and did sever the cases.

Sixth. Appellant alleged as error the refusal of the court to allow him to prove by the witness, Alvin Cecil, the time and circumstances of his arrest, in explanation of the remark made by the trial court. It was immaterial when Alvin Cecil was arrested. He was not on trial. The cases had been severed.

Seventh. Appellant alleged as error the refusal of the court to show by Claude Fair that he refused to go with Alvin Cecil to steal some automobile accessories the evening before Dr. Philpot’s property was stolen. This was a collateral matter, and entirely irrelevant and incompetent.

No error appearing, the judgment is affirmed.


text:
    Veith v. Jackson.
    Opinion delivered December 19, 1927.
    1. Evidence — weight and sufficiency. — Positive testimony of the witness as to the time of an instrument’s delivery should govern as to the date and delivery of a mortgage, where another witness, whose testimony was in some respects contradictory, had no recollection of the matter or of the time when the mortgage was delivered.
    2. Homestead — validity of mortgage. — Where a mortgage on a homestead was not delivered to the mortgagee until after the death of the mortgagor’s wife, the mortgage was a valid convey- . anee from the date of delivery, though the wife had not signed it, as the instrument was not affected by the Homestead Act of 1887, p. 90.
    Appeal from Union 'Chancery Court, Second Division; George M. L&Croy, Chancellor;
    affirmed.

      N. A. Cox, for appellant.

      Walter • L. Brown, Gus W. Jones and Gaughan S ■ Sifford, for appellee.
   Humphreys, J.

On May 17, 1926, appellant instituted suit in the chancery court of Union County, alleging ownership of the north half of the northwest quarter 'of section 19, township 17 south, range 16 west, in said county, and seeking the cancellation of all title instruments, together with the record thereof, held by appel-lees to said land, and for an accounting of rents and profits thereon from appellee, W. E. Jackson, who had control and possession of said land.

Both appellant and appellees claim title from the same source. Appellant claims title by inheritance from her father and by quitclaim deed from her sisters and brothers to their undivided interests which they also inherited from him. Appellees claim title to the land through anesne conveyances from appellant’s father, who executed and delivered a mortgage deed on said land to W. A. Barksdale, which was subsequently sold under the power in the mortgage deed and purchased by Barksdale.

Appellant based her action upon the ground that the land in question was her father’s homestead at the time he executed the mortgage deed therefor to W. A. Barksdale, and that her mother did not join in the execution thereof, as required by the homestead act of 1887.

Appellees interposed the defenses, first, that appellant’s mother died before the delivery of the mortgage to ¡Barksdale; second, that the mortgage and proceedings therein were validated by the curative act of 1923; third, that appellant was barred by the two-year and seven-year statutes of limitation and by laches.

The cause was submitted to the court upon the issues joined and the testimony adduced by both appellant and ¡appellees, which resulted in a decree that appellant’s complaint be dismissed for the want of equity, because of laches, and quieting title to said land in appellees, W. E. Jackson and'Susan Jackson, from which decree an appeal has been duly prosecuted to this court.

The facts disclosed by the record are, in substance, as follows: J. W. Shaw, the father of appellant, owned and resided on the land in question with his family until the fall otf 1903, at which time he took a part of his personal property and household goods and went to live with his daughter in Louisiana, on account of the Parnell feud which disturbed Union County. He left a part of his property cn his homestead, with the expectation of returning when the feud should abate. While living with his married daughter in Louisiana, Shaw returned to Union County and borrowed $150- from W. A. Barks-dale, a neighbor, which he agreed to secaré by a deed of trust on his homestead. After borrowing the money he returned to Louisiana. According to the testimony of Barksdale, the mortgagee, 'Shaw, took the unsigned mortgage deed back with him for the purpose of executing it. According to the testimony of W. H. Wilson, Barksdale sent the mortgage by him to 'Shaw for execution after he returned to Louisiana. The mortgage deed was dated January 8, 1904, but was not signed by Mrs. Shaw, the mother of appellant. 'She died on January 26, 1904, and was brought back to the neighborhood of the homestead to be buried. Mr. Shaw did not return with the corpse, on account of illness himself. He was confined to his bed with the measles. .W. A. Barksdale testified that the mortgage deed was sent back and received by him at the. time Mrs. 'Shaw was buried. He testified that it was brought to him by W. H. Wilson. W. H. Wilson remembered taking* the mortgage deed to Louisiana, but had no recollection of how or when it was returned to W. A. Barksdale. On October 16, 1904, Shaw was shot and killed on his homestead, bo which he had returned. The small children went to live with their married brothers and sisters after their father’s death. After the death of her father and mother, and while appellant was about two years of age, W. J. Pendleton, the trustee named in the mortgage, purchased same, at a sale under power contained in the mortgage, the date being June 22, 1905. The trustee executed a deed to W. A. Barksdale under the mortgage foreclosure, on December 6, 1906. Appellees and their predecessors in title remained in possession and control of the land after receiving the trustee’s deed under the mortgage foreclosure, and have continuously paid the taxes thereon. Appellant’s brothers and sisters conveyed their interest in said real estate to her by quitclaim deed in 1922. On October 2, 1923, appellant became twenty-one years of age, and instituted this suit within three years thereafter. We deem it unnecessary to a determination of the cause to more-fully state the facts.

The testimony detailed above reflects that the mortgage deed upon which appellees rely as the basis of their title was not delivered to W. A. Barksdale until after the death of 'Sariah Jane Shaw, the mother of appellant. Although Barksdale and Wilson disagree as to the time the mortgage deed was delivered, yet the testimony uf both reflects that it was not executed by Shaw at the time he came back to Arkansas to borrow the money. It was not signed and acknowledged until after Shaw returned to Louisiana. He either took it back to Louisiana himself for execution, or Wilson took it down there to him for the purpose of execution, at the instance of Barksdale. Mrs. Shaw did not sign and acknowledge the mortgage, presumably on account of her last illness. Barksdale testified positively when it was delivered to him. Wilson had no recollection of how or when it was returned to Barksdale. Under the circumstances, the positive testimony >of Barksdale should govern as to the date and delivery of the mortgage. Not having been delivered until after the death of Mrs. Shaw, its validity was not affected by the homestead act of 1887. It became a valid conveyance from the date of delivery without her signature. This court said, in the case of Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033, that: “A deed is defined to be a written instrument, signed, sealed and delivered; and it is essential to the validity of the deed that there should be a delivery of the instrument.” And also stated in the case of McDonald Land Co. v. Shapleigh Hardware Co., 163 Ark. 524, 260 S. W. 447, that: “In pursuance of the agreement between the grantor and the grantees, that these deeds should be executed for the consideration as above mentioned, the deeds were signed by Mrs. Bob McDonald at Paragould, Arkansas, January 28, 1922, and taken by her to her husband, who was then at Havana, Cuba, where he signed and acknowledged the deeds, February 11, 1922, and on that day mailed the same to the respective grantees. These facts constitute in law a delivery to and acceptance of the deeds by the grantees on the 11th day of February, 1922.” In consequence of this view of the law and the evidence, it is unnecessary to determine the other issues in the case.

No error appearing, the decree is affirmed.


author: Kirby, J.

text:
    Warford v. State.
    Opinion delivered December 19, 1927.
    1. Criminal law — sufficiency of evidence. — In testing the legal sufficiency of evidence to sustain a conviction, it must be considered in the light most favorable to the State.
    2. Larceny — admissibility op evidence. — In a prosecution for larceny of goods from a store, it was not error to permit a clerk in the store to testify that other goods in addition to those "charged to have been taken were stolen at the same time, all being of the same make and kind of goods as those charged to have been stolen.
    3. Criminal law — best and secondary evidence. — Admission of testimony as to the contents of receipts given to defendant for money paid by him for goods he had stolen, held not error where the receipts were in possession of defendant.
    4. Criminal law — harmless error. — Admission of testimony as to the contents of receipts given- to defendant for money alleged to have been paid -by him for stolen goods, if error, was not prejudicial, where defendant, who had possession of the receipts, later produced them in testimony himself. ■
    5. Larceny — admissibility of testimony. — Admission of the testimony of a clerk in a prosecution for the larceny of goods from a store, to the effect that considerable goods had been missed shortly before defendant was arrested, was not error where defendant had told the officers that he had been in the store on .three different occasions and had taken goods each time.
    6. Criminal law — evidence of other crimes. — In a prosecution for larceny of goods from a store, testimony tending to show that defendant had stolen goods from the store at other times was admissible for the purpose of disclosing the good faith or the criminal intent of the .accused.
    Appeal from Madison Circuit Court; J. S. Maples, Judge;
    affirmed.

      E. W. Applegate, Attorney. General, and Barden Moose, Assistant, for appellee.
   Kirby, J.

This appeal comes from a conviction for grand larceny upon an indictment returned by the grand jury of Madison County charging appellant with the crimes of burglary and grand larceny.

No brief has been filed for appellant.

'The testimony shows that the store of Nolen Pool, at Delaney, Arkansas, was broken into and merchandise of the value of more than $10 taken therefrom; that the appellant was operating a little restaurant, where lie served short orders, adjoining the store. Goods of con-' siderable value had been missed from time to time, as taken out between the closing of"the store at night and the opening in the morning, and appellant was suspected as having taken them.

A witness, one of the clerks, had seen a car drive up in front of the store, while he was standing in the door with his wife, and noticed appellant come out to the car with a bundle or something in a sack, which he put in the bottom of the car. He knew the lady driver, and received information that the stuff he had seen put in the car had been taken out of the store. They began to watch the store, and, on Christman Eve, witness, with his wife, when the other watchers came out of the store, talked a little while with them, and went to the store to get some candy and some things to put in the boy’s stockings, and found a man in the store, who ran into the side room and slammed the door. Witness was scared, and went back to his house, which was about 15 or 20 steps from the store, and stood inside of the door until the man came out of the store, and he recognized him to be Pete Warford, the appellant. He came out of the back door and turned straight to the left, and went over the palings between two buildings, in direction of Warford’s place. They told the proprietor, and the next day the officers came out and arrested Warford. He was brought to witness’ house, and admitted to him and Mr. Guinn, the sheriff, that he had been in the store about three times, and asked that they be as light on him as they could.

The sack that Warford had put in the car had overalls and jumpers in, it that belonged to the store, and witness did not know how many had been taken, but only the number recovered. Warford’s children had on two small pairs of 'overalls and jumpers when he was arrested. Warford was with the children.

After appellant was bound over, he inquired if he could pay enough to satisfy the owners of the goods and have the matter kept out of court, and was told that, so far as they were concerned, it would he settled, and he paid $500 and was given two receipts therefor, one for $75 and the other for $425, which he produced in evidence.

This witness stated that the stock carried was of the value of three or four thousand dollars', and that he had been in sole charge of the store, as the clerk of Mr. Pool. Thought that the store had lost somewhere between seven and nine thousand dollars in goods taken in the last eight years. This witness stated that a considerable amount of goods had been missed on another occasion, shortly before appellant was arrested, and that he did not know when the goods described in the indictment were stolen nor how much at a time.

.Other witnesses stated that they had found some of the goods, the overalls land jumpers, at Jim Warford’s, where appellant boarded, and some at George Walker’s, which had been bought from appellant and given to his father by Leonard Walker, and also some at Sanford Warford’s, the father of appellant.

The night after appellant was arrested, he told two or three people that he had been in the store two or three times and had got goods each time, and also stated that he guessed he was. gone.

The sheriff testified about the recovery of the goods, that were identified as the property of Nolen Pool, the owner of the store. Another witness, and also the deputy prosecuting attorney, stated that they had had a conversation with Warford at Mr. Faubus’, the clerk’s house, and that he stated he had gone into the store at the window, and was by himself, and the last time he went into the store was when Mr. Faubus claimed he saw him coming out, and that he did not get anything that time, but got all the stuff at other times shortly before-

Stewart, a deputy sheriff, testified about finding some of the stuff, and, before they put Warford in the car, he asked witness to use what influence he had to help him get out of the trouble as- lightly as possible, telling him at the time that he figured he was in bad, and needed assistance.

Defendant testified that lie was running a restaurant at Delaney, where he had lived for 43 years, and had not been arrested before. That he went to the store about 2 o ’clock and bought a jumper and overalls, and, when he bought them, some one called him to the door, and he told Al he would be back and settle with him. He then went to his restaurant and found a bunch there to cook for, and did not get to go back until late, and A1 was talking to some man, and told him he would be with him in a minute. He stayed about five minutes, and stepped back and picked up the overalls and jumper and two small pairs, thinking he would go hack and pay him in a few minutes, as he could trade on credit there when he got ready, and he wanted to see if the overalls fitted the children, and found they did. He said they had the tags on, and that he did not mean to steal them, and that was all he ever took. Admitted selling a new pair of overalls to Mr. Walker; said they were too small for him, and had them lying on the counter where everybody could see them, and did not try to conceal them. Denied that A1 Faubus, the .clerk, saw him in the store one night, but told the officers that he went in the store because they kept bringing up things against him. Said he was not in there that night, hut was in there when he got the stuff. He paid Pool $500, and said that he had agreed to stop prosecution as far as they were concerned. They did not guarantee him anything. Said he had mortgaged or sold nearly everything he had to get the money which he claimed he paid to stop prosecution, because he heard that Al and his wife claimed they caught him in the store, and he knew that if they claimed that and stuck with it he would sure go to the pen. Said he did not tell Mr. Cruinn the truth when he said he had been in the store three times, and only said it to get rid of the talking.

The first three grounds of the motion for a new trial' challenge the sufficiency of the evidence to support the verdict. In testing the legal sufficiency of the evidence to sustain a conviction, this court .has uniformly held that it must be .considered in the light most favorable to the State, aiid it is sufficient to sustain the verdict; White v. State, 164 Ark. 517, 262 S. W. 338; Cash v. State, 151 Ark. 75, 255 S. W. 311.

There was no error in allowing A1 Faubus, the clerk, to testify regarding goods alleged to have been taken from the store, which were not described- in the indictment. He stated that there were more overalls and jumpers recovered than the number charged to have been taken in the indictment. The testimony shows that other overalls and jumpers that were recovered in addition to those charged to have been taken in the indictment were all the same make and kind of goods as those charged to have been stolen, and no error was committed in proving that more goods were stolen than had been charged in the indictment to have been taken. This constituted no material variance between the allegations and the proof. Hyde v. State, 168 Ark. 580, 271 S. W. 330.

There is no merit in the contention that error was committed in allowing the witness, A1 Faubus, to state what was contained in the receipts given to' the defendant for money alleged to have been paid by him, since the testimony shows this witness had given appellant receipts for the $500 claimed to have been paid for the stolen goods. The receipts of course were the best evidence, but they were in the possession of the appellant, who later produced them in testimony himself, and, if any error was committed in-permitting Faubus to make a statement about their contents, it could not have been prejudicial. Clayton v. State, 159 Ark. 592, 252 S. W. 589.

Neither was error committed in allowing Faubus, the clerk, to testify that a -considerable amount of goods had been missed as taken from the store shortly before defendant was arrested. The defendant told the officers that he been in the store on three different occasions, and it was -not error to show that some goods, had been missed from the store before he was arrested. He admitted having taken some goods from the- store at one time, but stated that he had no intention of stealing them, but intended to return and pay for them. The testimony tending to show that he had taken goods from the store at other times was admissible for disclosing the good faith or .criminal intent of the accused. Cain v. State, 149 Ark. 616, 233 S. W. 779; Davis v. State, 117 Ark. 296, 174 S. W. 567; Howard v. State, 72 Ark. 586, 82 S. W. 196.

The last assignment, that‘the court erred in refusing to grant a new trial on the grounds of newly discovered evidence, is without merit. The name of the witness who was supposed to know the facts and give the testimony was not disclosed, nor any statement made setting out what the witness would testify. Neither did the motion disclose that any diligence had been used to procure the testimony of the witness, and the alleged testimony was only contradictory and impeaching in character anyway, and the court did not abuse its discretion in denying the motion. Hayes v. State, 169 Ark. 883, 277 S. W. 36.

The evidence is sufficient to support the conviction, as already stated, and wc find no prejudicial error in the record, and the judgment is affirmed.


text:
    Shanks v. Clark.
    Opinion delivered December 19, 1927.
    1. Limitation op actions — time op commencement. — Crawford & Moses’ Dig., § 6955, requiring the commencement of An action on a promissory note within five years after the cause of action shall accrue, held not to bar a recovery on a note to May 26, 1921, on which suit was brought and service obtained on May 26, 1926, since the cause of action did not accrue until the day following the date of maturity.
    2. Corporations — liability op promoters. — Promoters of an insurance corporation, who executed a note and signed names thereto, prior to its incorporation, as officers, without stating for whom or what company they were acting, were personally liable for the payment of the note according to its terms.
    3. Evidence — parol evidence rule. — In an action on a promissory note signed .by promoters as officers, without designating the corporation for which they acted, parol evidence was inadmissible to contradict the terms of the note and to show that it was not to he paid except out of surplus to he accumulated hy the insurance company to be organized by the makers of the note, and that the note was in effect evidence of purchase of stock or membership in the corporation.
    4. • Appeal and error — judgment on reversal. — Where a case appears to have been fully developed on the trial, judgment on reversal will he rendered for the party entitled to recover.
    Appeal from Ouachita Circuit Court, Second Division; W. A. Speer, Judge;
    reversed.
    STATEMENT OF FACTS.
    This action was commenced in a justice court of Ouachita County, on the 26th day of May, 1926, upon a promissory note for $100, dated May 26, 1920, due one year after date, with interest at six per cent. Judgment was rendered in the justice court in favor of appellant and against the three appellees, the other signers of the note not having been served with a summons there.
    On the hearing on appeal in the circuit court, appellees filed an answer denying liability on the note, and alleging, that the $100 was paid by the plaintiff and accepted hy the defendants in their official capacity as president, secretary and treasurer of the Mutual Fire Insurance Association of Arkansas, and was. not intended as.a loan to the defendants; hut that the $100 was in payment for an interest in the said association as one of the partners or unit-holders. They also pleaded the 5-year statute of limitations as a bar to recovery.
    The case was submitted to the circuit court, without a jury. The original note sued on was introduced as evidence, and reads:
    “Gruaranty loan fund for the Mutual Fire Insurance Association of Arkansas, as provided for in the by-laws of this association, article 5, section 1. Invest with us and receive interest on your money. From $10, $20, $50, $100, $1,000, with this company for one, two, three or five-year notes at 6 per cent., in denominations of the above statements, interest on each dollar invested, and return all of your money at the end of the time invested for; or, if you desire, we will continue to pay you 6 per cent, as long as the ¡amount is invested in this company. ’ ’
    “Camden, Ark., May 26,1920.
    “One year after date we promise to pay to the order of Mrs. S. 0. Shanks, one hundred dollars ($100), with 'interest at 6 per cent, per annum, value received.
    “Due May 26, 1921.
    “C. J. Allen, Secretary.
    “T S. Sandefur, President.
    “I. A. Clark, Treas.
    “Names of trustees: T. S. Sandefur, Joe Copeland, George Hale, I. A. Clark, J. J. Oliver, N. E. Greer, C. J. Allen. ’ ’
    The summons was also introduced, showing that it was issued and served on the defendants against whom judgment was rendered in the justice court on the 26th day of May, 1926.
    T. S. Sandefur testified, over the objection of appellant, that he was a minister, and pastor of the Baptist Church; that he was president of the Guaranty -Loan Fund for the Mutual Fire Insurance Association of Arkansas, which was not incorporated when the note was executed. They got a permit from the blue-sky department at Little Bock, and had been trying to get up an organization that would comply with the instructions of that department. The company was finally organized into a corporation, suspended business, and was wound up by a receiver. ££ The permit gave us authority to work out the organization, if we could, by pooling certain money together by persons that wanted to have insurance, but we could not issue policies until we got a charter, and had to raise $10,000 before operating a fire insurance company for the protection of the policyholders. It was paid out for losses and other expenses, and so forth.” Said he collected this $100 from appellant, who was one of the promoters. “It was her part she was putting in to help raise the $10,000. * * * This money was to be paid back as the surplus accumulated. There was never any surplus created.” He was paid $100 a month salary after the charter was procured. “There were several hundred policies issued, but not all of the losses were paid — everybody wanted to burn down after we got started.” A motion to exclude this testimony being overruled, exceptions were saved.
    The court held that the note was ambiguous, and the testimony competent to explain its meaning, and found that the persons who signed the note were liable, it having been executed before the charter was procured by the promoters of the corporation, and that the signers were bound and liable thereon as members of a partnership. The court further found that the note was executed on the 26th day of May, 1920, due one year after date, May 26, 1921, and was sued on upon May 26, 1926, summons being issued and served that day, and held the note was barred by the statute, of limitations, and rendered judgment accordingly, from which this appeal is prosecuted.

      Gaughan & Sifford and Don W. Harrell, for appellant.

      Hayme, Parks S Westfall, for appellee.
   Kirby, J.

Appellant’s first assignment, that the court erred in holding her cause of action on the note barred under the 5-year statute of limitations, is well taken. The statute, § 6955, C. & M. Digest, provides: “Action on promissory notes, and other instruments in writing, not under seal, shall be commenced within 5 years after the cause of action shall accrue, and not-afterwards.” It has long been the settled rule that the maker has the whole of the day upon which the note becomes due in which to pay it, and that he cannot be sued until the next day, the day upon which the cause of action accrues. Zackery v. Brown, 17 Ark. 442; Holland v. Clark, 32 Ark. 697; Moore v. Horsley, 42 Ark. 163.

In Peay v. Pulaski Co., 103 Ark. 601, 148 S. W. 491, the court said: “The rule for computing time in statute of limitations in this State is to exclude the first day and include the last day,” and, although the statute of limitations relative to promissory notes was not under consideration in that case, the rule as announced is not in conflict with the holding here, since the makers had the whole of the day upon which the note became due, one year after date, May 26,1921, in which to pay it, the holder’s cause of action did not accrue until the next day, the first day upon which suit could be brought.

The statute of limitations pleaded requires that an action on promissory notes shall be commenced within 5 years after the cause of action shall accrue, and not afterward. Since the cause of action did not accrue until the next day after May 26, 1921, upon which the note was due, and the suit was brought on May 26, 1926, the action was commenced within 5 years-after the cause of action accrued, and was not barred by the statute, as. the court erroneously held. -

The note given and sued on, disregarding the printed matter above it, “Guaranty Loan Fund for the Mutual Fire Insurance Association of Arkansas,” appears to be an ordinary promissory note signed by the individuals, as makers, with designation of agency affixed to their signatures respectively, as president, secretary, and. treasurer, the appellees against whom judgment was rendered, and the other makers, upon Avhom no service was had, as trustees.

The association Avas still in the promotion stage, the corporation not having been organized, when the note was executed, and the appellees did not sign its name by them as officers of the association, but signed it as such officers without stating for Avhom or what company they were acting, and became personally liable to the payment of the note according to its terms. Lawrence County Bank v. Arendt, 69 Ark. 406, 65 S. W. 1052.

The parol testimony was inadmissible to show that the note, which, considered by itself, appeared to be given for money owing to or borrowed from the payee, was not to be paid at all, except out of a surplus to be accumulated by a corporation thereafter to be organized, and was but evidence of a'purchase of stock or membership in such corporation.

The court found, however, notwithstanding the admission of this testimony, that the signers of the note were personally bound to the payment, and such finding was supported by the testimony.

For the error designated in holding the cause of action barred by the statute of limitations, the judgment must be reversed, and, since the case appears to have been fully developed, judgment will be rendered here for. the appellant in the amount of the note sued on, with interest. It is so ordered.


text:
    Solomon v. Carroll.
    Opinion delivered December 19, 1927.
    Animals — stock law district — detachment op township. — A township which, tinder Crawford & Moses’ Dig., § 330, had on petition 'been added to a stock law district already formed,, has no right, under § 331, to be detached and exempted from the operation of the law.
    Appeal from Greene Circuit Court; W. W. Bandy, Judge;
    reversed.

      M. P. Huddleston, for appellant.

      Jeff Bratton, for appellee.
   Kirby, J.

This appeal challenges the right of Lake Township, in Greene County, to be detached and exempt from the operation of the law in an original unit stock-law district, to which it was added upon petition and election, by order of the Greene County Court, duly made.

The case on appeal from the county court, where the right was denied, was heard upon the following .stipulations of fact:

“It is hereby stipulated by and between the parties hereto that, in the year 1916, Clark, Union and St. Franeis townships were by proper order of the Greene County Court formed into a stock district under the provision of the act of General Assembly of the State of Arkansas, approved March 19, 1915. That in the year 1924 Lake Township, which adjoined the unit district above mentioned, on the east, under proper petition and orders of the county court of Greene County, Arkansas, under an election as required by law, was attached to and became a part of said unit under the provisions of act 156 of Acts 1915, as amended by act No. 258, year 1919.
“The only question for determination is whether now said Lake Township may petition out from under the operation of the stock law, under the provision of § 331, C. &M. Digest.”

No other evidence was offered in the 'circuit court, and from the judgment allowing the township to be detached from the district and exempt from the operation of the stock law this appeal is prosecuted.

Appellants insist that there is no provision of the law warranting such separation from the district, and appellees that the action was rightfully taken under the provisions of % 331, C. & M. Digest of the Statutes.

The original unit district was formed in 1916, under the provisions of the said áct of the Legislature No. 156 of the Acts of 1915, as amended by act No. 258 of 1919, and in 1924 Lake Township was duly attached thereto.

Section 10 of the said act No. 156 (§ 331, C. & M. Digest of the Statutes) provides for the formation of three or more townships into a unit or district for restraining any stock, as enumerated in the act, from running at large after the organization shall have been perfacted, and % 330, C. & M. Digest, provides “any other township, or any group of townships, that would be a contiguous whole to the unit thus formed, may be attached to and become a part of said unit in the same way and manner as herein provided for in the first instance, by merely stating in the petition, in addition to the other requirements, that the petitioners wish their township or townships attached to said unit, naming the townships therein.”

It is insisted that the provisions of § 331, relating to the exemption of any township from the operation of the stock law in the district organized, only applies and has effect to allow such exemption made of a township or territory proposed to he included in the original unit or district, which action must be taken before the completion or perfection thereof, it conferring' no right upon a single township, duly attached .to the original unit district bv the method provided, to be detached and exempt thereafter from the provisions of the stock law operative in such. clistjiTKyfc

In O’Brien v. Root, 167 Ark. 119, 266 S. W. 931, this court had under consideration a like proceeding under the provisions of a special act applicable to White County alone, containing provisions like ■§ 331, C. & M. Digest, except the special act only permitted exemption for a period of not more than 5 years. That case was first before the court and reported in 164 Ark. 156, 261 S. W. 291, where the court construed the provisions of the act relative to the exemption of a township, and held that there was no intention to confer the right of exemption to be exercised after the law went into effect on January 1 of the year following the election, holding, in other words,, that the exemption must be applied for and effected before the district was perfected and the law became effective and operative therein. The court said there:

“The reason for placing this limitation upon the exercise of the privilege of exempting townships is obvious, for such a law would operate with reasonable permanence, so as to avoid great expense and inconvenience to farmers and stock raisers living in the territory, and it would not be good policy to permit frequent changes dependent upon the changing will of the majority. ’ ’

It does not appear, from the provisions of said § 331, that there was any intention of the lawmakers to confer a right upon a single township that had been regularly attached to an original unit or district, to separate itself from such district and be relieved and exempt from the operation of the stock laws therein after becoming attached thereto, and we find no other provisions of the law authorizing such detachment.

The lawmakers doubtless had in mind that the public welfare would be best promoted by the organization of the territory into districts, for preventing the running at large of stock, when the majority of the electors in the territory affected- concluded that it should be done, in order to avoid the great expense and inconvenience to the farmers and stock raisers living in the territory, of fencing to prevent damage from the stock- running at large, and made no provision for the exemption of such territory from the provisions of the stock law after the perfection of the organization of the district and the annexation of the territory thereto.

It follows that the court erred in holding otherwise, and the judgment is, reversed, and the cause dismissed.


text:
    Bates v. Blocher.
    Opinion delivered December 19, 1927.
    1. Trial — -offer of compromise — admissibility in evidence. — It was error to permit counsel ior plaintiff to read to the jury defendant’s offer to confess judgment in a certain amount, where defendant did not admit that he owed such amount, but only offered to confess judgment provided the offer was accepted before further costs accrued.
    2. Trial — reading pleadings to jury. — Under Crawford & Moses’ Dig., § 1292, prescribing the order of trial, it is customary to read pleadings to the jury for the purpose of stating the issue.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed.

      Tom W. Campbell, for appellant.

      Moore, Gray & Burrow, for appellee.
   Mehaeey, J.

Plaintiff, a resident of Bentonville, Arkansas, engaged in buying and selling fruit and fruit waste, sold to the appellant, a resident of Pulaski County, Arkansas, under a written contract, a quantity of apple skins and cores approximating 150,000 pounds. The written contract is as follows:

“November 9, 1925.
“Mr. J. W. Blocher,
“Bentonville, Arkansas.
“Dear sir: This will confirm our phone purchase of your own make of skins and cores at $1.36 cwt. f. o. h. Bentonville, shipments to he made on or before May 15, 1926, plus 8 per cent, interest on the amount of each invoice. Interest to begin December 1, 1925; each invoice to carry its own interest. The volume to be approx. 150,000 pounds.
“Cars to be routed Frisco care of Missouri Pacific at Van Burén.
“Jim, I am sending this in duplicate, so you may sign and return one copy for our files.
“Very truly,
“Ozark Fruit Company,
“By'B. C. Bates,
° “'Sole Owner.
“Accepted: J. W. Blocher.”

The appellant does not dispute the contract, the shipment of the goods, nor the price to be paid, nor the quantity. But, in his answer, he alleges that when the goods were purchased they were in good condition, and it was the duty of the plaintiff to so keep and care for same until shipped that they would be in good condition when shipped; that plaintiff permitted water to get into and upon said apple skins and cores and greatly increase the weight and greatly decrease the sugar content and value thereof; that said apple skins and cores, had they been in good condition when shipped to him, would have produced vinegar at the rate of one gallon to every 2 1/3 pounds, or a total of 69,710 gallons, but that, by reason of the excessive moisture and loss of sugar content, they produced only 48,700 gallons, making a loss to defendant of 21,010 gallons of vinegar by reason of said excessive moisture and loss of sugar content; that, by reason of said excessive moisture, defendant was caused to pay excess freight in the sum of $143.24; that, by. reason of said negligence of plaintiff in handling’ said apple skins and cores while in his storage, defendant was damaged in the sum of $778.57, which amount being deducted from the unpaid balance of purchase price left defendant indebted to plaintiff only in the sum of $259.79, which amount defendant admitted he justly owed, and had tendered to plaintiff.

The last paragraph of defendant’s answer was as follows: “Although defendant contends he owes plaintiff only $259.79, in order to meet plaintiff half-way in the attempt to stop this litigation, the defendant here and now offers to confess judgment in favor of plaintiff in the sum of $800, on condition that said offer be accepted before any further costs accrue; otherwise the defendant will insist upon judgment being limited to the $259.79, which is all that he justly owes the plaintiff. ’ ’

There was a verdict and judgment for the plaintiff, and defendant has appealed.

In defendant’s motion for a new trial there are nine assignments of error, but he states in his brief: “We waive the first eight, and rely solely upon the ninth, which was that the court erred in permitting counsel for appellee to read to the jury appellant’s offer to confess judgment for $800.”

We deem it unnecessary to set out the evidence, for the reason that the only question for this court to determine is whether the lower court erred in permitting counsel for appellee to read to the jury appellant’s offer to confess judgment, which was contained in the last paragraph of his answer.

■Section 1343 of Crawford & Moses’ Digest reads as follows:

“After an action for recovery of money is brought the defendant may offer in court to confess judgment for part of the amount claimed or part of the causes, involved in the action. Whereupon, if the plaintiff, being present, refuse to accept such confession of judgment in full of his demands against the defendant in the action, or, having had such notice that the offer would be made, of its amount, and the time of making it, as the court shall deem reasonable, fails to attend, and on the trial does not recover more than was, so offered to be confessed, such plaintiff- shall pay all of the costs of the defendant incurred after the offer.”

Section 1344 of-Crawford & Moses’ Digest is as follows :

“The offer shall not be deemed to be an admission of the cause of action, or amount to which the plaintiff is entitled, -nor be given in evidence upon the trial.”

The statute above quoted expressly provides that the offer to confess judgment, mentioned in § 1343 of Crawford & Moses’ Digest, shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor -be given in evidence upon the trial. The question is, whether the rule announced by •this statute is violated by the attorney for the appellee reading the offer to the jury in his argument.

Appellee contends, first, that it is discretionary with the court to permit pleadings to be taken by the jury to the jury room, and that it is customary to read the complaint and answer to the jury, and that defendant below had notice of this. It is said that the court below simply held that pleadings in a case are to be treated as in evidence and part of the record. It is true that it is customary to read the pleadings to the jury for the purpose of stating the issues.

■Section 1292 -of Crawford & Moses’ Digest provides:

“When the jury has been -sworn, the trial shall proceed in the following order, unless the court shall, for special reasons, otherwise direct: first, the plaintiff must briefly state his claim and the evidence by which he expects to sustain it. Second, the defendant must then briefly state hi.-s defense and the evidence he expects to offer in support of it. Third, the party on whom rests the burden of proof in the whole action must -first produce his evidence. The adverse party will then produce his evidence, ’ ’ etc.

■ We think it- perfectly clear that the statement' in defendant’s answer was not a confession of judgment, and was n.ot an admission that he owed $800. There was an admission that he owed $259.79, with an offer to confess judgment for $800 if accepted. It was not accepted, and it was therefore withdrawn, and was not proper to go before the jury.

Appellee relies on the statement in Corpus Juris, which is as f ollows:

“A statutory offer of judgment differs from an offer set up in the answer which may operate as an admission or confession of judgment and may authorize judgment on the pleadings.”

In the same paragraph, however, relied on and quoted by appellee, it is stated:

“Where the ease goes to trial before expiration of the time for acceptance, and before,any action on the offer by plaintiff, it has been variously held, under, the different applicatory statutes, that the offer becomes ineffectual for any purpose; that the offer may be accepted during the progress of the trial; that, by going to trial before his time to accept has expired, plaintiff in effect elects not to accept; and that the offer cannot be accepted after trial. * * * An acceptance entitling plaintiff to judgment must be made in the manner prescribed by the statute, as by filing or serving a written notice of acceptance, or by an oral acceptance in open court in the presence of defendant.” 34 C. J. 140.

In the paragraph preceding the one cited in appellee’s brief is the following statement:

“Defendant is not bound by an offer to allow judgment for the sum or relief specified unless the offer is accepted within the time limited by statute, or fixed by the'court, where the statute authorizes the court to fix or extend the time within which an offer • of judgment must "be accepted in order to be binding. If not accepted within the time prescribed, the offer is deemed withdrawn, and cannot be given in evidence or commented on in the presence of the jury, or allowed in any way to affect the judgment, except as to costs, and it is generally expressly so provided by statute.”

The offer to confess judgment made by defendant expressly states that it is defendant’s contention that he only owes $259.79, but, in order to meet the plaintiff half-way in an attempt to stop this litigation, he offers to confess judgment for $800 on condition that said offer be accepted before any further costs accrue. Otherwise, the plaintiff insists upon the judgment being limited to $259.79. This offer was not accepted, and it therefore could not be given in evidence or commented on in the presence of the jury.

Appellee next calls attention to thé case of Maize v. Big Creek Coal Co. (Mo. App.), 203 S. W. 633. The court stated there that the offer of compromise is not like a tender made, perpetually good by a deposit in court, or like one set up in an answer, which is in effect a confession of judgment.

If defendant had simply filed an answer and set up in his answer that he owed the plaintiff $800, then, of course, this answer would have been evidence against him, would have been an admission made by him, but he expressly .states in his. offer to confess judgment that he does not owe $800.

In the case referred to by appellee, the motion was made under a statute providing for an offer to confess judgment. That statute provided, however, that judgment might be rendered upon upon such offer if plaintiff accept the offer and give notice thereof, but that, if the offer is not accepted, it .shiall be deemed to be withdrawn.

The court also stated: “As plaintiff did not see fit to accept the offer, but elected to submit his case to a jury, the offer, by the terms of the statute, was withdrawn, and could in no way afford a basis for a judgment such as plaintiff sought to obtain after he had entered the lists with his adversary and had been unhorsed in the joust.”

Appellee then calls attention to the case of Greene v. Wood-Harmon Co., 173 Mass. 45, 52 N. E. 1070. The court in that case stated the offer of judgment did not affect the case. It was not a pleading, and it was not evidence.

We do not think that either authority supports the contention of appellee.

In speaking of an offer to compromise, the Supreme Court of Utah .said:

“The right of the plaintiff to reject the offer is not, and cannot be, denied. It is a general rule as to all agreements that assent of both parties is necessary, and that the party to whom an offer is made may reject at his pleasure, and thereafter there can be no agreement, unless the offer be renewed. * * * It is a settled rule that an acceptance of any proposition, to be valid and binding, must be unconditional. If a condition be affixed by the party to whom the offer is made, or any modification or change in the offer be required, it constitutes in law a rejection of the offer.”

The court in the same case also .said:

“An offer to compromise is not an admission that anything is actually due. A payment into court is an admission of an indebtedness to the extent of the payment. It is a satisfaction of the debt to the extent of the amount paid.” Orth v. Zion’s Co-Op Mercantile Inst., 5 Utah 419, 16 Pacific 590.

The Court of Appeals of Kentucky, discussing the question of offer to confess judgment, quotes the statute from which ours .seems to have been copied, and then says:

“This expressly provides that the offer to confess judgment .shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor be given in evidence upon the trial. It simply has the effect of making the plaintiff pay all costs incurred after thé offer is made in the manner required in the Code of Practice, provided he fails to recover more than the amount for which defendant offered to confess judgment.” Tyler v. Hamilton, 108 Ky. 120, 55 S. W. 920.

The Circuit 'Court of Appeals of this circuit has said, in discussing our statute:

"Beyond this, if there had been no such statute, this unaccepted offer would have been immaterial upon general principles. It was a mere attempt to buy peace — ■ to compromise the controversy — and for this reason it was neither an admission of liability nor -of the ;truth of any averment of the complaint. It is the policy of the law to favor the settlement of disputes, to foster compromises, and to promote peace. If every offer to buy peace could be used as evidence against him who presents it, many settlements would be prevented, and unnecessary litigation would be produced and prolonged.’' For this reason unaccepted offers to compromise claims or to purchase peace are inadmissible in evidence at the trial of controversies over the claims to which they appertain, and should not be permitted to affect the rights of the parties, or to influence the results of the trials.” Moffit-West Drug Co. v. Byrd, 92 F. 290.

In speaking of the testimony of a witness with reference to his effort to compromise, the court .said:

"These negotiations fell through. Mr. H. Fj. Wal'bridge was permitted to testify to these negotiations, and to produce certain letters passing between him and defendant. They had no relevancy to the issue involved in this case-, and should have been excluded. They contained statements which might have prejudiced the defendant. ’ ’

The court in the same case said:

"The offer was not read to the jury,- and counsel offered it to. contradict hi-s statement that he had never tendered that amount in court. The entire subject was brought out upon cross-examination. The jury must have understood that this was a written offer, and contained the tender of the amount. It was ias effectually before the jury, and just as damaging, as though the written document had been offered in evidence. It was clearly incompetent.” Walbridge v. Barrett, 118 Mich. 433, 76 N. W. 973.
“There was an offer of compromise made by the claim agent of the Missouri Pacific Railroad Company, but the letter also carried with it a denial of liability. We do not think that the mere fact that the Missouri Pacific Railroad Comp.any endeavored to trace the misdirected box of goods and to adjust a claim of loss therefor would create liability bn its part.” Missouri Pacific Railroad Co. v. Stein, 161 Ark. 406, 256 S. W. 373.

While the statement offering to confess judgment for $800 was in the answer instead of a separate plea, we think it was made clear that it was not an admission of indebtedness and that there could not be any dispute about this. This appears from the reading of the paragraph itself, wherein it is expressly stated that he does not owe this amount. And, so far as the record shows, this was merely an effort to buy peace, to settle the lawsuit, and it had no effect, and was incompetent, and was just as damaging when got 'before the jury by reading and commenting 'on by the attorney as if it had been introduced in evidence.

For the errors indicated the case must be reversed, and remanded for a new trial.


text:
    Campbell Baking Company v. Clark.
    Opinion delivered December 19, 1927.
    Master and servant — liability op master for servant’s negligence. — Where an agent, driving a truck over a route for the purpose of delivering and selling merchandise, in returning to the principal’s place of business, towed an automobile of his own accord, and at an intersection skidded the truck through a filling station, causing the car being towed to strike plaintiffs’ car and injure plaintiffs, held that the principal was liable, since, although he exceeded his authority, he had not, as a matter of law, completely abandoned the principal’s business.

      Appeal from Grant Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      Buzbee, Pugh ■& Harrison, for appellant.

      J. 8. TJtley and George A. McConnell, for appellee.
   Humphreys, J.

. This is an appeal from judgments rendered in two cases, consolidated for the purposes of trial, in favor of Mabel Clark for $1,000 on account of injuries received when the car she- was driving was struck by a Bodge sedan car being towed by appellant’s truck, and in favor of W. W. Clark for damages resulting to his car, loss of .service of his wife, and expenditures for medical and hospital bills incurred on account of his wife’s injuries.

Appellant'contends for a reversal of the judgments upon the sole alleged ground that it is revealed by the undisputed evidence in tire record that the driver of the truck had stepped aside from the line of his duties for appellant, and was no longer appellant’s agent at the time of the injury.

As one question is presented for determination-on appeal, it will only be necessary to make a brief statement of the facts.

On the '28th day of -September, 1926, the day of the collision and injury of Mrs. Clark and W. W. Clark’s automobile, appellant had sent John Biggers down to Benton and Malvern to sell and deliver bread and -other merchandise, in one of its delivery trucks, from its place of business on 14th and Main Streets, in Little Rock, Arkansas. Biggers -sold the merchandise and collected for it, receiving both his salary and a -commission on the sales. In performing his duties he followed a regular route in going and coming. On his return trip he allowed W. W. Shoemaker, for Whom he had formerly worked, to attach a large Dodge sedan, that would not run by its own power, to the truck with a tow-chain, and was towing it into Little Rock on his reg’ular route at the time -of the collision. He was returning to appellant’s garage to put the truck away, and to appellant’s bakery to report and account for the day’s business. He was forbidden to haul passengers, and was not authorized to tow dead or disabled oars into the city. He received, no pay for towing the car in on behalf of appellant, but accepted a tip for his own personal use from Mr. Shoemaker. He made no report of having received the tip to appellant. He was driving the truck at a rapid rate of speed on Wright Avenue as he approached Wolfe Street. At the intersection of the two streets he ran the truck, or rather .skidded it, in an effort to check the speed, through a filling station in which the Clark car was standing and which Mrs. Clark was driving. He ran in front of the Clark car with the truck, missing it, but the sedan swerved, breaking the tow chain, and struck the Clark car, greatly damaging it and injuring Mrs. Clark.

Appellant contends for a reversal of the judgments upon the theory that Biggers had completely abandoned the service of appellant and was acting entirely for himself in towing the Dodge sedan that struck the Clark car. This might be true if he had changed his regular route in order to render the service to another and for the time had ceased to perform -services for his regular employer; but, where the service rendered, to a third party was only an incident to the prosecution of his duties to his employer, it cannot be said that he had completely abandoned his employer’s business. In the instant -case Biggers was driving the truck on his regular route at a reckless rate of speed, at the time of the collision, in order to get back to the garage and to report to appellant. As we understand the law applicable to cases of this character, although an agent may exceed his authority to the extent .even of violating instructions, if, at the time, he is engaged in the business he was employed to perform by his regular employer, his employer would be responsible for injuries resulting from his torts. « The exemption from liability on the part of an employer, under the doctrine of Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918B, 115, and Bizzell v. Hamiter, 168 Ark. 476, 270 S. W. 602, can only be invoked where the employee has turned completely aside from his employer’s business to attend to business entirely his own. This court said in the Cockrill case, supra:

“If a servant turns completely aside from the master’s 'business and pursues business entirely his own, the master is not responsible.' On the other hand, if he is engaged in the master’s business, but performs it contrary to instructions or without express authority as to the particular manner of doing the work, the master is liable. * * * Sometimes the extent of the deviation may be so slight, relatively, that as ia matter of law it can be said that it does not constitute a complete departure from the master’s service, while, under other circumstances, the deviation may be so marked that it can.be said as a matter of law that it does constitute an abandonment of the master’s service, while, under still other circumstances, the deviation may be so uncertain in extent or degree that it leaves a question of inference to be drawn by a trial jury as to whether or not there has been such an abandonment as to relieve the master from responsibility for the servant’s act.”

We cannot say as a matter of law, under the circumstances of the instant case, that there was a complete abandonment of appellant’s business by Biggors at the time of the collision.

No error appearing, the judgments are affirmed.


author: Mehaffy, J.

text:
    Sheets v. Swift & Company.
    Opinion delivered December 19, 1927.
    1. Equity — jurisdiction.—In an action to recover the price of produce sold, chancery court had no jurisdiction to consider the claims of intervening- creditors of the estate of a third person, found by the court to he entitled to the fund.
    2. Appeal and error — chancellor’s finding. — In appeals from the chancery court, the decree will be affirmed unless against the preponderance of the evidence.

      Appeal from Sebastian Chancery Court, Fort Smith District; J. V. B ourlmul, Chancellor;
    affirmed.

      A. A. McDonald, for appellant.

      U. G. May, W. L. Eincannon and Evans & Evans, for appellee.
   Mehaffy, J.

Tom Sheets, the appellant, brought suit in the Sebastian Circuit Court against Swift & Company, to recover $3,755.40. He alleged that he is doing a general egg and poultry business in the city of Memphis, Tennessee, under the firm name and style of Arkansas Produce Company, and that, on the 21st day of April, 1922, in the city of Fort Smith, he sold to the defendant, Swift & Company, at its office in Fort Smith, Arkansas, 480 cases of eggs, to be loaded at Booneville, Mansfield and Havana, and to be shipped to Swift & Company at Pine Bluff, Arkansas; and that, on the 23d day o.f April, 1926, defendant paid for said eggs by giving its check for the amount, payable to the order of W. H. Holland, Dewey Holland and John Pendergrass, from whom plaintiff had purchased said eggs, and who were to and did ship same by carload to Swift & Company at Pine Bluff, Arkansas. That said defendant gave said check knowing that the eggs belonged to him, and that plaintiff had paid W. D. Holland & Son for them. But the check was made to Holland & Son because Holland & Son shipped the eggs.

Sheets, the plaintiff, alleged that Pendergrass was a member of the firm of W. D. Holland & Son, and that, he indorsed the check in the presence of defendant and delivered it to plaintiff; that he deposited the check to his credit in the Commercial Bank & Trust Company of Memphis, and that Swift & Company stopped payment on said check, and the plaintiff had to repay the amount to the Commercial Bank & Trust Company. He asked judgment for $3,755.40 against Swift & Company.

The defendant, Swift & Company, denied all the material allegations of the complaint, but admitted that it stopped payment of the check because required to do so by John Pendergrass, the person to whom it was given for Holland & Son.

A number of persons who had advanced money and sold eggs to Holland & Son intervened, and the ease was transferred to chancery court, where it was tried and a decree entered in favor of the defendant. In the meantime, Swift & Company had deposited the money in court.

After some of the eggs had been bought and preparations were being made to ship a carload, W. D. Holland died, and the remainder of the carload of eggs was collected and the car was shipped after the death of Holland. '

The chancery court held that Swift & Company purchased the eggs from W. D. Holland & Son; that W. D. Holland was the owner of the business of "W. D. Holland & Son; that it was his individually, and that his son-in-law, Pendergrass, and his son were employees of W. D. Holland. The chancellor therefore held that the money belonged to the estate of W. D. Holland, deceased, and directed that it be paid over to the administratrix of W. D. Holland, deceased.

The court further held that the Bank of Booneville and other parties who intervened had claims against the estate of W. D. Holland, deceased, but that such claims would have to be filed in the probate court, and that the probate court alone had jurisdiction to allow or disallow said claims. The court also held that drafts that had been paid by Sheets for W. D. Holland & Son were claims against the estate, if they had not been paid, and that his remedy was to file his claim in the probate court in the usual way.

The chancery court had no jurisdiction. The interveners filed their claims with the probate court, and they have not appealed.

The only question to be determind by this court is whether or not Swift & Company was indebted to Sheets for eggs sold by Sheets to Swift & Company. Sheets claimed that Holland’s son and his son-in-law, Pendergrass, were partners in the businéss of W. D. Holland & Son, and .there was also some contention that Sheets himself was a partner.

All these matters of fact were settled by the decree of the chancellor, and we think that his findings are supported by the preponderance of the testimony. He found that W. D. Holland & Son sold the eggs to Swift & Company, and that the money paid into court as the purchase price of the eggs belonged to the estate of W. D, Holland, deceased.

We think that there was ample evidence to support the finding of the chancellor, and in all appeals from the chancery court the decree will be affirmed unless it is against the preponderance of the evidence. We think the finding in this case supported by a preponderance of the evidence, that the decree of the chancery court was right, and it is therefore affirmed.