text:
    Starr v. City National Bank.
    Opinion delivered June 11, 1923.
    1. Homestead — use op PART for business purposes. — The fact that a debtor used part of a lot adjoining his dwelling- for a poultry house in connection with his business did not deprive him of the right to claim the lot as part of his homestead.
    2. Homestead — loans as purchase money. — While money loaned for the specific purpose of buying a home is “purchase money,” for which the lender may claim a lien within the exception' in art. 9, § 3, of the Constitution, the rule.is otherwise in the case of a general loan.
    3. Homestead — purchase not fraudulent. — It is not a fraud upon ■ creditors for an insolvent debtor who is a resident of this State and the head of a .family to purchase a home, within the constitutional area and value, out of his assets upon which there is no existing lien.
    4. Homestead — conveyance not fraudulent. — Creditors cannot attack as fraudulent the conveyance of a homestead as made without consideration and in bad faith as to them.
    5. Homestead — selection.—Where an insolvent debtor conveyed urban lots on which his dwelling stood to his wife without consideration, and the lots exceeded in area one quarter of an acre, he will be allowed to select as exempt one quarter of an acre, and the remaining area will be subjected to the claims of his creditors.

      Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourlcmd, Chancellor;
    reversed in part.

      Hill & Fitshugh, for appellant.
    The court erred in subjecting so much of the property as constituted the homestead of appellants to the payment of the debts; The bank cannot have a claim against Starr for money loaned him1 and at the same time claim a resulting trust in the property that he bought with the money. 107 Ark. 535; 56 Ark. 586; 103 Ark. 145; 114 Ark. 128; 102 Ark. 451; 42 Ark. 503. There could be no trust, nor specific lien, or any kind of lien upon the homestead under these facts. See also 123 Ark. 360; 27 Ark. 77; 30 Ark. 230; 40 Ark. 62; 102 Ark. 309; 96 Ark. 281; 79 Ark. 164. To establish a constructive trust the evidence must be clear and convincing. 118 Ark. 146. The two lots were used together, occupied as a homestead, and belonged to Mrs. Starr, and appellee had no claim against them.

      James B. McDonough, Cravens S Cravens and Joseph R. Brown, for appellees.
    A portion of the bank’s money went into the property, lots 7 and 8, which are situated in the city of Fort Smith, and constitute a larger area by 10 x 140 feet than is allowed for a homestead. By taking the money he procured from the bank under false representations and putting; it in this property, appellant Starr was fraudulently avoiding the payment of debts. 33 Ark. 762; 65 Ark. 373. During insolvency money was taken from Starr’s assets and put in property claimed in his wife’s name, which creates a resulting trust, and the property is subject to a lien of a judgment against the debtor. 55 Ark. 116. It is difficult to see how authorities cited by appellants are in point. A constructive trust arises on account of some fraud committed, and whenever the circumstances under which the property was acquired make it inequitable that it should be retained by him who holds the legal title. 26 Ark. 24; 39 Cyc. 169. Such trusts are called trusts ex maleficio, and are not within the statute of frauds. 51 Ark. 351; 84 Ark. 189; 73 Ark. 310; 41 Ark. 261. Under the law and findings of the court, the lots were subject to the payment of the hank’s debt. Evidence also shows lot 8 not part of homestead.
   Humphreys, J.

This suit was instituted by appellee against appellants in the chancery court of Sebastian County to subject lots 7 and 8, block 560, Reserve Addition to the city of Fort Smith, to the payment of indebt-ednesses owing by F. C. Starr, an undischarged voluntary bankrupt, to appellee and other creditors. The bill is threefold in purpose, and first sought to subject both lots to the payment of said indebtedness, upon the ground that a large part of the money loaned by appel-lee to F; C. Starr to finance his business was fraudulently diverted to the payment of the purchase money of the lots and the cost of the improvement placed thereon; and, failing in the first purpose, next sought to set aside ■certain conveyances made by F. C. Starr to Edith Starr to the undivided one-lialf.interest in the lots, and subject his interest therein to the payment of said indebtedness, on the ground that they were voluntary and made in fraud of the rights of creditors; failing in the second purpose, to set aside said conveyances as to the excess over one-quarter of an acre contained in said lots, and-to subject such excess to the payment of said indebtedness, on the ground that the lots were within the city and exceeded in value the sum of $2,500.

The material allegations of the bill were denied, and, as a further defense, appellants pleaded that each of them, at the time of the purchase of the lots and at all times thereafter, were citizens and residents of the State of Arkansas; that F. C. Starr was a married man and the head of a family; that both resided upon said property, as and for their homestead, after same was purchased, long prior to the adjudication of F. C. Starr in bankruptcy, and prior to the time the indebtednesses were incurred.

Tlie cause was submitted to the court upon the issues joined and the testimony adduced by the respective parties, which resulted in a decree setting aside the two deeds executed byr F. C. Starr to Edith N. Starr, his wife, conveying his interest in said lots to her, and subjecting said lots to the payment of said indebtednesses subject to a mortgage lien in favor of the Arkansas Building & Loan Association on lot 7, and a lien of $283.33 in favor of Mrs. W. S. Cochran on lot 8, from which is this appeal.

Appellant’s first insistence for reversal is that the court erred in subjecting so much of the property as constituted the homestead of appellants to the payment of said indebtedness. The record reflects by stipulation that, on December 3, 1917, Dennis Potts conveyed to appellants, as tenants by entirety, said lot 7 for a consideration of $850, the deed of conveyance being immediately placed of record; that on June 1, 1920, F. C. Starr conveyed to his wife, Edith N. Starr, a one-half interest in the lot for the recited consideration of $1, which deed was also recorded immediately thereafter; that on February 13, 1920, Adams & Boyle Realty Company conveyed to F. C. Starr and wife, as tenants by the entirety, said lot 8, for the consideration of $850, retaining a lien on same in deed for all of the purchase price except $283; that on May 10, 1921, F. C. Starr conveyed to his ’wife, Edith N. Starr, a one-half interest in said lot for' a recited consideration of $1, which deed of conveyance was also placed of record; that at the time lot 7 was purchased from Dennis Potts, F. C. Starr-and wife executed to the Arkansas Building & Loan Association of Little Rock, Ark., their mortgage thereon for $700, and that said mortgage was immediately recorded.

The record also reflects that on December 22, 1919, F. (1 Starr borrowed from appellee bank $500, and on the 21 st dav of February, 1921, $3000, on promissory notes, which were renewed from time to time and were existing’ indebtednesses at the time Starr failed in business; that, immediately after the purchase of lot 7, appellants took actual possession of and occupied same thereafter, as their homstead; that lot 8 was purchased as an addition to their homestead and occupied and used by them in connection with lot 7; that a poultry house was built on the hack part of lot 8, which Starr used in connection with.his business. The fact that the poultry house was built on lot 8 and used by Starr in connection with his business is urged by appellees as proof conclusive that lot 8 was not intended or impressed as part of the homestead.

One does not lose his homestead for using part of it for 'business purposes. Berry v. Meir, 70 Ark. 129. The records fails to show that the money borrowed from appellee by Starr was loaned to him for the specific purpose or purchasing the lands in question.' The relationship of debtor and creditor, and not that of vendor and vendee, was created by the loans. This court is committed to the doctrine that borrowed money for the specific purpose of buying a home and so used is “purchase money” within exception to article 9, section 3, of our Constitution, for which a lien may be declared on the property purchased (Acruman v. Barnes, 66 Ark. 442), but is not “purchase money,” within the meaning of said section, for which a purchase money lien may be declared on the property purchased, if a general loan. Phillips v. Colvin, 114 Ark. 14. It is not and cannot be a fraud upon creditors for an insolvent debtor, who is a resident of this State and a head of a family, to purchase a home, within the constitutional area and value, out of his assets, upon which there is no existing lien. This court ruled in the case for Ferguson v. Little Rock Trust Company, 99 Ark. 45 (quoting syllabus 2): “An insolvent debtor may exchange lots which are subject to the claims of his creditors, but upon which they have no liens, for a homestead which is not subject to their claims.” And in the case of McIlroy Banking Co. v. Dickson, 66 Ark. 327, ruled (quoting syllabus 4) : “Money borrowed of a bank by its casbier by means of an overdraft in the usual course of business, and used by him to build a house, cannot be followed into the building as an express trust fund, so as to subject the building to execution, under Constitution 1874, art. 9, sec. 3, providing that the homestead shall be subject to execution against “trustees of an express -trust for moneys due from them in their fiduciary capacity.” And in the case of Pullen v. Simpson, 74 Ark. 592, in which it appears that a debtor was residing with his wife upon her homestead, ruled (quoting syllabus): '“An insolvent debtor may use his means, upon which his creditors have no lien, in improving his wife’s homestead, if such homestead is within the maximum area and value permitted by the Constitution.” Under the rule announced in the three cases last cited, the homestead of appellants, to the extent of oné-quarter of an acre, is exempt from the indebtednesses owed by F. C. Starr to appellee bank and his other creditors in bankruptcy.

Appellants’ next insistence for reversal is that the court erred in canceling the two deeds from-F. C. Starr to his wife conveying his interest in their homestead to her. We think it practically imdisputed, and quite clear, after a careful reading of the testimony, that appellants acquired, occupied, and used the lots as their homestead. According to the undisputed evidence the lots are urban property, exceeding in value $2,500 and in area one-quarter of an acre; that the conveyances sought to be canceled were voluntary. Under these facts the creditors had no interest in or right to that part of said property constituting the homestead of appellants. There are no creditors, as far as a homestead is concerned, save those entitled to liens thereon under the Constitution. For this reason creditors cannot attack, as fraudulent, the conveyance of a homestead made without consideration and in bad faith as to them. Fluke v. Sharum, 118 Ark. 229, and cases cited therein. The chancery court erred therefore in setting aside the deeds in question in so fai as they conveyed appellants’ homestead and in subjecting that part of the property constituting the homestead of appellants to the payment of the creditors in bankruptcy.

Appellants’ last insistence for reversal is that the court erred in setting aside the two deeds from F. C. Starr to his wife and subjecting the excess over one-quarter of an acre contained in lots 7 and 8 to the payment of said debts. We cannot agree with learned counsel for appellants in this contention. It is true that F. C. Starr and Edith N. Starr testified that both lots were purchased with her individual money, and that none of his money was used in the purchase or improvement of them. We are convinced that this was the case in the purchase of lot 7, but are exceedingly doubtful whether lot 8 was purchased with her money. Mrs. Starr had an individual checking account in the First National Bank from the time they came to Fort Smith, some eight or nine years before she testified. It was her practice to pa}T her debts with checks on that bank. She made the two initial payments on lot 7 and a number of the payments to the Building & Loan Association with checks, as was her custom. Not so when she came to buy lot 8. According to the evidence of herself and husband, she called in her neighbor, Mrs. W. S. Cochran, to count her money (or “boodle,” as she denominated it), and, not having enough to make the first payment, borrowed the deficiency from her friend, Mrs. W. S. Cochran. She was unable to say whether she had $200 or $250, and' could not tell how much she borrowed from Mrs. Cochran. She testified that she gave Mr. Starr the money to go down and buy the lot for her. When pressed, she was unable to make a satisfactory explanation as to why he had the deed made to the two of them instead of to her. She could not satisfactorily explain why he deeded Ms interest in lot 8 to her on May 10, 1921, only a few months before he failed, and in attempting to do so made several contradictory statements. Her attempted explanation that lie deeded the lot to lier because it was paid for with her money was not plausible. He was not moved by an impulse of that kind at the time he bought the lot, else, when he paid her individual money for it, he would have taken the deed in her name. At the time he conveyed lot 8 to his wife his business was not prospering1, and, if not then insolvent, he was on the eve of bankruptcy. He conveyed lot 8 to her without consideration when indebted to the bank in the sum of $3,500. We are convinced that he made this conveyance with the purpose and intent of placing his property beyond the reach of his creditors. The chancellor found that said lot purchased by F. C. Starr was purchased with his own money, and, after a careful reading and consideration of the testimony, we are unable to say the finding was against a clear preponderance of evidence.

The decree is therefore affirmed as to the excess over one-quarter of an acre, but reversed and remanded as to that portion of the lots claimed as a homestead, with directions to allow appellant to select one-quarter of an acre as exempt from the claims of appellees.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    E. A. Steininger Construction Company v. Bates.
    Opinion delivered June 18, 1923.
    1. 'Sales — delay in shipment — damages.—Where supply merchants agreed to ship “about February 20” certain material to defendant to be used in erecting a building, and failed to ship same until October 1Í, defendant, in a suit for the purchase money of such material, was entitled to counterclaim the following items of damage, viz., the cost of shipping material to a wrong destination and paid for by defendant, the additional cost of using a different material during delay in shipment, the price of material left over on account of using different material, and the cost of maintaining construction crews during the period of such delay.
    2. Sales — delay in shipment — construction of contract. — Where plaintiffs undertook to ship material about February 20, and failed to ship until October 11, they were not excused for such delay by a clause in the contract exempting them from delays caused by “strikes, fires, accidents, and acts of providence and general conditions beyond seller’s reasonable control”, as the ' clause “general conditions beyond seller’s reasonable control” refers to the class of obstacles mentioned in the . preceding language, and do not justify the plaintiffs in awaiting their own convenience to furnish the material.
    3. Sales — mutuality of contract. — A contract of sale hy which the sellers were not bound to ship the articles sold unless thpy could procure it for that purpose, was lacking in mutuality and not binding on either party.
    4. Sales — -delay in shipment — waiver.—Where the sellers of material to be used in the construction of a building failed to ship the material within the time agreed, the acceptance of the 'material by the buyer was not a waiver of the delay.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    reversed.

      Seneca C. Taylor and Jno. F. Clifford> for appellants.
    Appellants were entitled to damages for breach of the contract in delay of the shipment of tiling and to recoupment thereof in the amount claimed, and the chancellor’s finding’s to the contrary are clearly against the preponderance of the testimony. -Appellees were more than eight months late in the delivery of the materials under the terms of the contract, and are answerable for the resulting damages.

      Sam T. & Tom Poe, and Louis Tarloivshi, for ap-pellees.
    The chancellor’s findings are not against the weight of the testimony. The delay in the shipment of the tiling beyond the date specified in the contract caused no damage to appellant, since it was not yet in a position to use it even on the date of their letter, .Tune 7, about three and a half months after the delivery date. Under the clause in the contract providing the seller shall not be subject to any damage or penalties for delays caused by “strikes, etc.,” appellees are not answerable for damages, and the decree should be affirmed.

      Seneca G. Taylor and Jno. F. Clifford, in reply.
    There was no waiver of a timely performance of the contract, nor were appellees relieved from liability for nonperformance by the provision against damage for delays caused by “strikes, etc.” 140 Ark. 397; 126 Ark. 50; 191 S. W. 920.
   McCulloch, C. J.

Appellees, a partnership composed of F. D. Bates and B. J. Chamblin, instituted this action against appellant, a foreign corporation, to recover an amount alleged to be due for the price of certain building material (tiling) sold and delivered under written contract. The total account for the purchase of the tile was $2,050.75, according to prices stated in the contract, subject to a credit for freight paid by appellant, which, the contract provided, was to be refunded, leaving a balance of $1,718.98 claimed to be due by ap-pellees.

Appellant admitted in its answer that the account for the price of the tiling was correct, and pleaded a credit of $562.92 for freight paid, leaving a balance of $1,487.83. It also pleaded a counterclaim for certain items as follows: $165.75, tiling shipped to'another destination and paid for; $387.92, additional cost of using brick instead of tile during the period of delay ih delivery of tile under the contract; $300 for the price of tiling left over on account of having to use brick during the period of delay in deliveries; and the sum of $508, cost of maintaining construction crews during the period of delay. The credits claimed left a balance of $126.16 due appellees, which appellant conceded and offered to pay.

On the final hearing the court rendered a decree in favor of appellees for the amount of the account after crediting the freight claimed in appellant’s cross-complaint, $562.92, and the item of $165.75 for tiling shipped to Little Rock, the decree being for a balance of $1,322.08.

Appellant has'its principal office at St. Louis, and is engaged in building construction. It took a contract to construct a large building in Stuttgart, Arkansas, to be used as a bank and hotel. The plans called for the use of tiling, and appellees, being engaged in the business of selling such material, entered into a contract with appellant to furnish the specified amount of the material for use in tbe building at Stuttgart. There was a written contract between the parties, entered into on November 12, 1919, which specified the terms and the quantity (approximately) of the material, and also contained a provision that said material was “to be shipped about February 20 to E. A. Steininger Construction Company at Stuttgart, Arkansas.” The contract specified the material to be furnished thereunder as follows:

“Quantity Approximately Description Price-
8,800 8x12 interlocking tile, including specials, $ 125.00
15,000 to
17,000 6x12 interlocking tile,
more or less including specials, 125.00
“The 6-inch interlocking to take a reduction in price, provided we can get it made in Arkansas in time for the job.”
There was also a provision that the prices were to be “f. o. b. seller’s plant, freight allowed to destination,” and that the purchaser should pay the freight at destination and take credit for the amount. Another clause in the contract which, it is ■ claimed, is material to the present controversy, reads as follows:
“All promises of delivery are as closely estimated as possible, but seller does not guarantee deliveries, the same being contingent upon strikes, fires, accidents, acts of Providence, and general conditions beyond seller’s reasonable control, and seller shall not be subject to any damages or penalties for delays caused thereby.7’

The account filed with the complaint shows the dates of shipment. The first shipment under the contract was July 9, 1920, ,of 5,000 standard interlocking tiling, and 2,750 standard interlocking tiling’ on the same date; the next shipment was October 11, .2,800 6x12x12 hollow building tile, and the last shipment was on November 8, 1920, 4,000 6-inch interlocking tiling. According to the testimony in the case, the shipment of July 9 did not reach destination until late in August, and the shipment of October 11 did not reach destination until some date in November. The testimony does not show the date of the arrival of the last shipment 'at destination.

Appellant introduced testimony to show that, on account of the delay in shipment, it became necessary to use brick instead of tiling, and that there was an additional expense incrvu d of $387.92 on that account, and that, during the period of delay, the construction crews were held in waiting at an expense of $508, and that when the building was completed there was left over tiling of the value, at cost price, of $300, for which there was no use.

We are of the opinion that appellant established its claim of damages by a preponderance of the evidence, and that it is entitled to recoup thesé damages, if there was a breach of the contract which caused unnecessary delay in delivery of the material.

It is undisputed that there was a suspension of the work at Stuttgart on account of the owners of the building holding up construction for lack of money to make payments, but there is evidence in the record that there was delay caused by the failure of appellees to make shipment of tiling in time. In other words, the proof shows that the work was held up by the failure of ap-pellees to make delivery, and that appellant sustained damages on that account. The other items in the counterclaim, or cross-complaint, are supported by a preponderance of the testimony. The question therefore which remains for decision is whether or not appellees broke the contract with respect to the time of delivery.

The contract specified that deliveries were to bo made about February 20, which was two. months after the date of the contract. According to the undisputed evidence, there was not a single shipment of tiling until July 9, and the shipment did not reach destination until some time in August. It is true that the tiling was not actually needed hy appellant in construction until midsummer, and there was no complaint about the delay until the time approached for the tiling to he put into the building. There is a letter in the record, addressed to appellees on June 7, in relation to shipment, and which contains a notice to appellees that brick-laying would begin within sis weeks or two months after that date, and that material should be on the ground within that time: The first shipment contained only eight-inch tiling, and; according to the evidence, it was necessary to have the six-inch interlocking tiling to he used first. When the first shipment arrived, appellant notified appellees that it could not use the other tiling until the six-inch tiling was received. There was considerable correspondence between the parties from time to time, and appellant was continually insisting upon a shipment of the six-inch tiling. During this correspondence appellees suggested to appellant that 6x12x12 hollow tiling be substituted for the six-inch interlocking tiling at a different price, and, on October 8, appellant wired to appellees its willingness to accept one car -of the hollow tiling as a substitute. In accordance with this agreement a carload of six-inch hollow tiling was shipped on October 11, reaching destination some time in November.

It is obvious from the testimony that there was an unreasonable delay in the shipment of material. Ap-pellees reserved in the contract a period of sixty days within which to deliver the material, but there was no shipment until nearly six months after the stipulated time, and then it was a shipment of eight-inch tiling, which could not be used until after the six-inch tiling had been used. It is true there was no express notice, either in the contract or in the correspondence between the parties, until after the shipment of the eight-inch tiling, that the six-inch tiling would have to be used first, but the contract itself required shipment of all of the material, not merely a part of it, within the time specified. Besides that, appellees were expressly notified, as soon as the eight-inch tiling was received, that it could not be used until after the six-inch tiling had been received and used. There is no satisfactory explanation of the delay after that time.

Appellees offer justification for the delay under the clause of the contract exempting them from damages on account of delays caused by “ strikes, fires, accidents, and acts of Providence, and general conditions beyond seller’s reasonable control.” The testimony does not support appellees’ contention that the unreasonable delay resulted from any such causes. All that is fairly inferable from the testimony is that it was not reasonably convenient for appellees to get the tiling ready for shipment at an earlier date. ■ The language does not justify the interpretation that appellees should be allowed to await their own convenience to furnish the material. The words £‘general conditions beyond seller’s reasonable control” refer to the class of obstacles described in the preceding language, such as strikes, fires, accidents, and acts of Providence. If the contract is to be construed in accordance with the contention of ap-pellees, they were not bound to ship the material unless they could procure it for that purpose, and then it was lacking in mutuality, and was not binding on either party, for that would be, in effect, making the delivery of the material optional with the seller. Weil v. Chicago Pneumatic Tool Co., 138 Ark. 534.

The acceptance of the material on final delivery was not a waiver of the delay. Appellant could have declined acceptance and recovered damages for any differences in the cost of the material. It also had the right to accept the material at the contract price and sue for the delay in delivery.

Our conclusion therefore is that the chancery court erred in not allowing the credits claimed by appellant, so the decree is reversed, and a decree will he entered here reducing the amount of appellees’ ¡recovery to $126.16, the amount tendered by' appellant.


text:
    Knight v. Farmers' & Merchants' Gin Company.
    Opinion delivered June 18, 1923.
    1. Negligence — dangerous premises — liability to licensee.— While the fact that plaintiff’s intestate was a stockholder in a corporation operating a public gin would not debar him for recovering damages caused by the negligence of the servants of the corporation in operating the gin, she could not recover if • her intestate was a mere licensee in going upon the premises where he was injured.
    2. Negligence — injury to licensee. — Though the manager of a public gin had invited plaintiff’s intestate, who was a stockholder in the corporation which owned it, to come and inspect the gin, yet, since the corporation was not interested in his visit, he was a mere licensee and not an invitee.
    3. Negligence — duty toward licensee. — One who goes upon another’s premises as a mere licensee is in the same attitude as a trespasser, so far as concerns the duty which the owner owes him for his protection; and he takes his license with its concomitant perils and the owner owes him no duty of protection except to do no act to cause his injury after his presence is discovered.
    Appealed from Mississippi Circuit Court, Chicka-sawba District; W. W. Bandy, Judge;
    affirmed.

      J. T. Coston, for appellant.
    Appellant’s intestate was an invitee on the premises of appellee and injured by its negligence, and the court erred in directing a verdict for appellee, 92 S. W. 791. The fact that deceased was a stockholder in appellee corporation did not relieve it from the duty of exercising reasonable care to prevent injury to him who was on the premises by invitation. Corporation is under control of directors. C. &M. Digest, § 1717; 37 Pac. (Kan.) 124, 167 N. W. 1048. The judgment should be reversed and the issues submitted to a jury.

      ■Little, Buck & Lasley, for appellee.
    Choate, although a- stockholder in appellee company, was only a licensee, not an invitee. 156 Mass. 426. No duty owed to him as such. 57 Art. 16; 48 Ark. 493; 74- N. H. 116; 14 L. E. A. 276, 31 Am. St. Eep. 520; 20 L. E. A. 714; 87 Am. Dec. 644; 32 Am. St. Eep. (W. Ya.) 859; 60 N. E. (Ohio) 205; 98 Am. Dec. 317; 11 L. E. A. (La.) 720. If Choate’s status be treated as analogous to a landlord’s' on the rented premises, he was nothing more than a mere licensee. Tiffany on Landlord & Tenant, 13. If Choate was an invitee, he should have notified appellee of his presence, and he was guilty of contributory negligence also. 69 Me. 173; 48 Vt. 127; 2 Thompson on negligence, § 988; 20 E. C. L. 70. The belt was properly laced, and, even though Choate be'considered an invitee, appellee was not liable for his injury. By. v. Dooley, 77 Ark. 566.
   McCulloch, C. J.

This is an action to recover damages sustained by appellant’s intestate, E. C. Choate, by the breaking of a belt at appellee’s cotton gin, which, it is alleged, was caused by negligence of appellee’s employees in failing to properly lace or brad together the ends of the belt. It is alleged in the complaint that Choate was a visitor at the gin on business in which ap-pellee was interested, and at the invitation of the manager of appellee’s business.

The answer contained a denial of the allegations of negligence with respect to the lacing or bradding together of the gin belt, and also denied that Choate was on the premises at the invitation of appellee’s manager, and alleged that Choate was there voluntarily and merely as a licensee.

Choate died during the pendency of the action, ap-pellee was appointed administratrix, and the cause was revived in her name.

At the trial of the cause, after appellant had introduced her testimony, the court peremptorily instructed the jury to return a verdict in favor of appellee. The only question presented therefore is whether or not there was evidence legally sufficient to sustain a verdict in favor of appellant.

Appellee is a domestic corporation, organized in Mississippi County for the purpose of building and operating a public cotton gin at the town of Leachville. it. C. Clioate, a retired merchant and farmer, was the largest stockholder in the corporation, but he was not a director or officer of the company, and was in nowise connected with the management of its affairs.

The gin was completed and put into operation early in October, 1921, and on October 14, according to the undisputed evidence, Choate visited the gin plant and entered the engine room, without the knowledge of any one at the gin. The first one to discover his presence there was the machinist in charge, who testified that he went into the engine room and saw Mr. Choate standing there as if he were examining a pump, and that, as the .belt had broken once before, he was in the act of calling out a warning to Choate when the belt broke loose from the drive-wheel and struck Choate’s hand, breaking the bones in two of his fingers. The gin had been in operation three or four days, and this was Choate’s first appearance at the gin, so far as the testimony in this case discloses. The belt was one which revolved around the drive-wheel, was about seventy-five feet in length, fourteen inches wide, five-ply in thickness, and made of rubber. The ends were fastened together by hooks specialty prepared for that purpose. Originally the belt had been cut too short and had to be spliced by another piece fourteen or sixteen inches in length, and each end of the spliced pieces was fastened to or connected with the main part of the belt by hooks. The proof shows that the hooks were of standard make and in common use for fastening belts, though there is another method adopted by using lace leather. The unfastening of the belt was caused by the hooks pulling ont.

Appellee introduced no testimony, bnt its manager, Rose, and the machinist in charge, G-roves, were introduced as witnesses by appellant, and the testimony of those witnesses was relied upon by appellant as making a case in her favor. Rose testified that several times during the construction of the gin Choate asked him, when they met by chance, how they were getting along at the gin plant; that he made reply to Choate that they were getting along all right, and invited Choate to come down to the plant and look it over. Rose testified that these conversations occurred several times up to about the time, or perhaps after, the gin was started into operation, but the witness was not certain that the conversations occurred after the gin was started. The statements of the witness, as they appear in the transcript, are as follows:

“Q. State whether or not you ever extended to him an invitation to come down to the premises and look the machinery over? A. I had at times. I didn’t that morning. In fact, I didn’t know he was in the gin that morning until he was hurt. I had invited him down at times before that. Q. "Well, was that a general-invitation, or an invitation to come and see certain parts of it? A. Well, I had asked him to come down and look it over.”

On cross-examination the statements of the witness were as follows:

“Q. Mr. Choate was a stockholder? A. Yes sir. Q. One of the largest? A. Yes sir; he was the largest. Q. Was he a 'director in the company? A. No sir. Q. He had nothing to do with the running of the gin? A. No sir. Q. You say that you had invited him to come to the gin? A. Yes sir. Q. That is while yon were building it? A. Yes sir. Q. How did you happen to do that? A. Well, I would be talking to him, and he would say, ‘How are yon getting along down there?’ and I would say, ‘All right,5 and he said, ‘Well, I am coming down and see how you are getting along,’ and I said, ‘All right, come down.’ Q. That would be the extent of your invitation, would it? A. Yes sir. Q. You didn’t know he was there that morning? A. No sir. Q. And he had no invitation from you to be there that morning? A. No sir. Q. You had not invited him to be in there at any time while the machinery was in operation, had you? A. I had just invited him down at different times. Q. Well, did you ever invite him to come down there and stand around while the machinery was in operation? A. Well, I had just invited him down is all. * * * Q. Your invitation was just casually made to him to come down? A. I just invited him to come down and look over the proposition.”

The redirect examination on this subject was as follows: “Q. You say you invited him while the gin was being erected to come down? A. Yes sir. Q. And after it was finished, tell the jury whether you then invited him to come down or not? A. Well, I couldn’t say. I could not say whether it was. after it was finished and we were running or not. He would meet me and ask me how we were getting along, and I would tell him all right, that we were going to start up. Q. State whether or not, after you told him that you were going to start up, you invited him down? A. Well, I invited him in that way.”

Further cross-examination was as follows: “Q. You didn’t invite him because of any benefit to yourself or the gin company, did you, but for his own pleasure and convenience? A. It was just out of courtesy to him. He was a stockholder in the company.”

After the court had announced the ruling that a peremptory instruction in favor of appellee would be given, counsel for appellant was granted permission to introduce additional testimony, and witness Eose was again recalled and made the following statements: “Q. When did you invite him to visit the gin in relation to the time yon commenced running the gin? A. Well, I invited him at times before we started running and some time along about the time we started to running. Q. Mr. Choate owned three or four farms around there and was raising cotton on those farms? A. Yes sir. Q. State whether or not the cotton from those farms was ginned at that gin? A. It was. Q. State whether or not you Invited other farmers around there who were prospective customers of the gin to come down and go through and look it over? A. Yes sir; I had a good many people coming down there. Q. You wanted to advertise the gin, didn’t you? A. Yes. sir.”

The only legitimate inference that can be drawn from the testimony is that Mr. Choate went to the gin on his own business as a stockholder in the corporation, and not in the interest of the corporation itself. He was, ■according to the testimony, invited there, but the Invita- . tion was only for his own purpose and interest, and not for any purposes of the corporation.

Counsel for appellant insist that the case should have been submitted to the jury for the reason that the inference might have been drawn that the corporation was inviting farmers to the plant for advertising pur- ' poses in order to induce them to patronize the gin, but we do not think that the testimony warrants any such inference. There is no testimony whatever in the record that Choate was invited there for any such purpose. On the contrary, the undisputed testimony shows that he was invited to the gin plant upon his own inquiry for the purpose of “looking it over,” as one of the stockholders interested in its . construction and operation. That being true, Choate was a mere licensee while on the premises of appellee for the purpose of inspecting the plant. The fact that he was a stockholder in the corporation did not bar him from recovering damages caused by the negligence of the servants of the corporation, if he was rightfully on the premises otherwise than as a trespasser or a bare licensee. Morbach v. Home Mining Co., 53 Kas. 731, 37 Pac. 124. But if he went to the plant for the sole purpose of looking after his own investment, the corporation itself would have no such interest in the visit as would change his status from a licensee to that of an invitee. It is not always clear, under a given state of facts, as to what inference may he drawn as to a person being a licensee or an invitee, but one of the sure tests is whether or not the owner of the premises is interested in the presence of the visitor.

In the case of Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, we said that one who went upon a train at a railroad station merely for the purpose of greeting passengers and without the intention to assist them in any way in embarking or debarking, was a licensee and not an invitee.

In St. Louis, Iron Mountain & Southern Ry. Co. v. Wirbel, 104 Ark. 236, we decided that one who went upon the premises of an owner for the purpose of seeking employment, when it was customary to employ help thebe,-was there on business of the owner so as to make him •an invitee and render the owner responsible in damáges for negligence in failing to properly make the premises reasonably safe.

In Chicago, Rock Island & Pacific Ry. Co. v. Russell, 136 Ark. 365, we held that, where the plaintiff went ■ into the railroad station to meet persons who he thought were friends of his from another town, and he was injured by falling down an open and unlighted stairway, he was a mere licensee, and the railroad company was not liable on account of failure to safely maintain the premises.

In Alfrey Heading Co. v. Nichols, 139 Art. 462, where a person had bought firewood at a manufacturing plant and went there for the purpose of hauling it away, and was injured by negligence in the maintenance of the premises, we held that the owner of the plant had such an -interest in the presence of the visitor as to make the transaction one in which the visitor was an invitee rather Limn a licensee, and that the owner was responsible for damages.

According to these tests, there is no escape from the conclusion that, if Mr. Choate went to the premises merely as a stockholder for the purpose of looking over the subject-matter of his investment, he was a mere licensee, and we think that this state of facts is shown by the undisputed evidence. In all of our decisions on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes his license with its concomitant perils, and that the owner owes- him no duty of protection except to do no act to cause his injury after his presence there is discovered. St. L., I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489; Ark. & La. Ry. Co. v. Sain, supra; C. R. I. & P. Ry. Co. v. Payne, 103 Ark. 227; St. L., I. M. & S. Ry. Co. v. Pyles, 114 Ark. 218; Alfrey Heading Co. v. Nichols, supra; C. R. I. & P. Ry. Co. v. Russell, supra; Mitchell v. Ozan-Graysonia Lumber Co., 151 Ark. 6.

It is unnecessary to discuss any question of negligence of appellee in fastening the belt together, for, since it is found that appellant’s intestate was there as a licensee, and that no affirmative act of negligence was committed after he went upon the premises, there is no liability.

The court was therefore correct in directing the verdict, and the judgment is affirmed.


text:
    Erskine Williams Lumber Company v. Burgess.
    Opinion delivered June 18, 1923.
    1. PRINCIPAL AND AGENT — REVOCATION OP AUTHORITY. — Where an agent’s authority is not coupled with an interest, nor created for a definite period, it is terminable at the will of the principal.
    2. Principal and agent — revocation op authority. — A contract by which exclusive authority is given to an agent to sell lumber without unreasonable delay is a contract for a definite period and is not revocable.
    3. Contracts — construction—clerical misprision.- — Where a contract provided that an agent should sell certain lumber “without reasonable delay”, the word “reasonable” is an obvious error, “unreasonable” being intended.
    Appeal from St. Francis Circuit Court; J. M. Jackson, Judge;
    reversed.

      G. W. Norton, for appellant.
    Appellant’s agency contract was coupled with an interest, and for a definite time, and not revocable at the will of its principal. 8 Wheat., 174, 5 Dec. Sup. Ct. 379; 2 C. J. 530, 533-5, 563. Appellants had the exclusive right to sell the lumber within the prescribed period— the time it could be disposed of ‘ ‘without unavoidable delay, market conditions considered.” 89 Ark. 421; 91 Ark. 212; 96 Ark. 23. Appellees could indirectly terminate the contract.

      Mann & Mann and Baggett & Baggett, for appel-lees.
    The agency created by the contract did not exist for a definite period of time, and was revocable at the will of the principal. 137 Ark. 23; 4 B. C. L. 2535. Bevocation must be made in good faith. 24 B. C. L. 283, § 8. The contract did not constitute a power coupled with an interest. 21 B. C. L. 824; 52 L. B. A. (N. S.) 255. Neither did the agent have any interest in the lumber. Mechem on Agency, § 204. The contract shows there was no intention to create an irrevocable agency. 138 S. W. (Mo.) 36.

      G. W. Norton, in reply.
    It was manifestly the intention of the parties that the agency should exist till the lumber could be sold, market conditions considered. 6 R. C. L. 849, 835, note 225. This case comes within the exception to the rule as shown in 138 S. W. 36, cited by appellees. 84 Ark. 462; 106 Ark. 543; 111 Ark. 195. No notice of revocation was given appellants. 4 R. C. L. 253; 49 L. R. A. (N. S.) 998, note; 9 C. J. 519-520, §22.
   McCulloch, C. J.

Appellant is a corporation engaged in the lumber business in the city of Memphis. Appellees are engaged in the business of manufacturing lumber for sale at or near the town of Hughes, in St. Francis County, Arkansas. Appellees had a large quantity of lumber stacked on their yard, and they entered into a written contract with appellant whereby appellant was ■ authorized to sell lumber on the market, at prices to be approved by appellees, for a commission of ten per cent.' upon the prices received. ' The contract described the lumber as 200,000 feet of lumber bulked down at Hughes, St. Francis County, State of Arkansas, and also about 500,000 feet of lumber ‘‘now on sticks on , the mill yard of first party, about six miles south of Hughes.” The contract recites that, in consideration of its execution, appellant agreed to advance to appel-lees as a loan the sum of $4,000, to be evidenced by note due April 6, 1921, bearing interest; and it further recites that “it is mutually agreed that first party (appel-lees) hereby gives the second party (appellant) the exclusive sales agency or right to sell certain lumber described as follows, to-wit.” The contract does not expressly name a date for its expiration, nor a definite time limit, but it provides that appellant should sell, without reasonable delay, “market conditions considered, all of the above described lumber, 'as soon as he can obtain orders therefor, said lumber to be sold upon orders at such prices as are approved by first party.” There are further provisions in the contract to the effect that sales of lumber should be credited on the said note of appel-lees until the same be-paid, and that thereafter the net proceeds of sales be remitted to appellees. The contract also provides that appellant will guarantee payment on all lumber sold.

This action was instituted by appellant against ap-pellees to recover damages for breach of the contract. It is alleged that, after a certain- amount of lumber was shipped and sold and applied on the debt of appellees to appellant, appellees refused to ship any more lumber. The action is to recover commissions which would have been earned on the sale of the remainder of the lumber. The contract was exhibited with the complaint.

Appellees answered, denying all the allegations of the complaint, and/upon the issues formed, there was a trial, and testimony was introduced by appellant, but the court gave a peremptory instruction in favor of appel-lees, and judgment was accordingly rendered against appellant.

Counsel for appellees defend the judgment on the ground that the authority conferred on appellant in the contract was revocable, and that it constituted ho breach of the contract to revoke it by a sale of the remainder of the lumber to other parties.

The contract, in express terms, confers an exclusive agency to sell, but it is contended that even this feature of the contract does not render it irrevocable unless a time’ limit is fixed for performance, or the authority is coupled with an interest.

It is conceded to be the rule that, where authority as an agent is not coupled with an interest, nor created for a definite period, it is terminable at the will of the principal. 2 C. J., pages 533, 534; 1 Mechem on Agency, § 570.

Counsel on each side argue with much zeal the question as to what constitutes a consideration or an interest coupled with the authority, but we have concluded that this case can be determined upon the question that a definite time was fixed in the contract for its performance. It is not required that the time of performance be fixed in express words, but, if the necessary result of the authority given is to fix a period for its exercise, then the contract, which is, in terms, exclusive, cannot be revoked. Our conclusion is that this contract, by its own terms, fixes a time within which it must be performed. In the first place, the subject-matter of the contract is merchantable chattels, which, according to the terms of the contract, are to be expeditiously and without unreasonable delay sold upon the market. This contemplates an immediate and continuous effort to sell the property on the market, and the language can only be construed to mean that it should extend until the property should be sold. The timo of performance is not fixed in days and months, but it is ascertainable from the terms specified in the writing. In other words, the contract does not itself specify the time for its performance, but it furnishes the means for its ascertainment, that is, say, an opportunity to sell on the market within a reasonable time. We are of opinion therefore that the contract is valid, and that a sale to another party by appellees, within the time afforded under the contract to appellant to make sale, constituted a breach of the contract, for which appellant was entitled to recover commissions.

Of course, the question whether or not appellant proceeded expeditiously towards the sale of the lumber, or whether there was an unreasonable delay, are questions nf fact to be determined ’by a trial jury. This was taken away from the jury by the court’s peremptory instruction.

There is another feature of the case which should be mentioned, and that is, the interpretation of the following language of the contract: “Second party agrees to sell, without reasonable delay, market conditions considered, all of the above described luftiber as soon as he can obtain orders therefor, said lumber to be sold upon orders at such prices as are approved by first party.”

The use of the word “reasonable” is an obvious error, as it is evident that the word “unreasonable” was intended. In disposing- of the case we have treated the contract as if it read “without unreasonable delay.”

The judgment is therefore reversed, and the cause remanded for a new trial.


author: Wood, J.

text:
    Bullard v. State.
    Opinion delivered June 25, 1923.
    1. Intoxicating liquors — possession op still — evidence.—Testimony held sufficient to sustain a finding that defendant had a still in his possession in violation of the statute.
    2. Criminal law — singling out evidence. — An instruction in a prosecution for having a still that “the facts alone that the defendant resided with his mother and that a still was found on her premises are not sufficient to warrant conviction,” was properly refused, as it singled out a particular phase of the evidence and instructed the jury as to the weight to be given to it.
    Appeal from Cross Circuit Court; G. E. Keck, Judge;
    affirmed.

      J. C. Brookfield, for appellant.
    The court erred in not granting a continuance. The evidence is not sufficient to sustain the verdict. The court erred ’in refusing appellant’s requested instruction No. 1.

      J. S. Utley, Attorney General, John L. Garter and Win. T. Hammock, Assistants, for appellee.
    No diligence was shown in attempting to procure the attendance of the witnesses, and the motion for con--tinuance should have been overruled. 110 Ark. 409; 130 Ark. 592; 133 Ark. 239; 94 Ark. 169. The evidence is sufficient to support the verdict. 132 Ark. 97; 135 Ark. 145; 120 Ark. 312; 104 Ark. 174. The instruction complained of singled out a particular phase of the evidence and. instructed -the jury ay to the weight to be given it, and no error was committed in refusing to give it. 145 Ark. 165; 114 Ark. 243.
   Wood, J.

This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for a period of one year, on an indictment the charging part of which it as .follows: “In the county aforesaid, on the 12th day of October, 1922, the said Polk Bullard did unlawfully and feloniously keep in his possession a still, without registering the same with the proper United States officer, against the peace and dig-nit}7' of the State of Arkansas.”-

The appellant moved for a continuance on account . of the absence of two witnesses, Addie Smith and Ray Hambrick. The motion was in proper form, and sets up that the indictment was returned against the appellant on February 6, 1923; that J. C. Brookfield was employed as his attorney; that by agreement with the prosecuting attorney on that day the cause was continued until the following Monday to enable appellant’s attorney, who was a member of the Legislature, to return to his duties at Little Rock; that the attorney returned to court on the day of trial, and found that no witnesses for the defendant had been summoned; that the attorney thereupon caused subpoenas to be issued for Smith and Hambrick, who were within the juris-' diction of the court, and that the defendant was put to trial without said witnesses and without sufficient time being granted to the sheriff to summon said witnesses. The motion then set forth the facts which the defendant expected to prove by the witnesses, which were material.

The court overruled the motion, and did not err in so doing, because the appellant fails to show that he had exercised proper diligence to obtain the absent witnesses. Neither the appellant nor his attorney asked that subpoenas be issued for the witnesses before the day of the trial. This he could and should have done. Sheptine v. State, 333 Ark. 230-239; Jackson v. State, 94 Ark. 169.

The appellant contends that the evidence is not sufficient to sustain the verdict. The officers who searched the premises of appellant’s mother, where appellant resided, stated that they searched the barn and .found a copper still in the corn-crib, covered up with shucks. There was what they called a worm with it, and the outfit that sits on a stove — that.is, a cooker. It looked like it had been used. In talking to the appellant about it he said he found it over in a creek somewhere near his place. He stated that he brought it home and intended to .cut it up and put the copper around his stovepipe, that he was building or remodeling. The officers looked around and found another one in the weeds in the corner of the yard, twenty or thirty feet from the house. That was of the milk-can variety — looked like a five-gallon milk-can. There was a worm there. They also found a quart fruit jar of whiskey fifteen feet from this second still. Appellant stated that he found both stills in the creek. They also found a barrel of mash— two gallons in a keg in tire garden near the house — about a thirty-gallon keg. This keg was concealed partly down in the ground, and had a sack, or weeds or something, thrown over it.

This testimony was sufficient to warrant the verdict of the jury. The jury might have found, from this testimony, that the-appellant had in his possession a still in vioiation of the statute. Act 324 of the Acts of 1921, p. 372, sec. 2; Ammons v. State, 12 L. R. 343; Hodgkiss v. State, 12 L. R. 308.

The appellant requested the following prayer for instruction: “The facts alone that the defendant resided with his mother and that a still was found on her premises are not sufficient to warrant conviction in this case, and, unless you find some other fact or circumstance to connect this defendant with the possession or operation of the still or stills, as alleged, your verdict will be for the defendant.”

This instruction singled out a particular phase of the evidence and instructed the jury as to the weight to be given it. The court did not err in refusing this prayer for instruction. “Circuit judges should avoid telling the jury what importance to attach to the evidence or to the absence of it. It is for the jury, and not the court, to determine its importance or its weight.” Pope v. State, 45 Ark. 165; Whitley v. State, 114 Ark. 243.

It could serve no useful purpose to set out the instructions given by the trial court. Suffice it to say the issues of fact were submitted to the jury under instructions that conform to previous decisions of this court, and were correct declarations of law. If the appellant had prayed for a proper instruction telling the jury that they could not convict the appellant unless they found beyond a reasonable doubt, from the evidence, that the appellant had in' his possession a still, he would have been entitled to such instruction. But he did not present such prayer for instruction. We find no reversible error in the record, and the judgment is therefore affirmed.


text:
    Stafford v. Cook.
    Opinion delivered June 18, 1923.
    1. Schools and school districts — directors as county officers. —School directors fall within the designation of county officers, within the meaning- of the statute regulating contests.
    2. Schools and school districts — validity of county board of education ACT. — Under Const., art. 19, § 24, providing- that “the General Assembly shall provide by law for the mode of contesting elections in cases not otherwise specifically provided for in the Constitution itself,” and art. 7, § 52, providing for an appeal in such contests from any inferior board, council or tribunal to the circuit court, held that Acts 1919, No. 234, § 11, providing that contests over election of school directors shall be heard by the county board of education, with right of appeal to the circuit court, is valid.
    3. Schools and school districts — ballots containing too many names. — In a school district election ballots containing the names of five school directors, where only two could be voted for, must be thrown out, as there is no means of ascertaining which of the candidates the voters meant to favor with their 'ballots.
    4. Schools and school districts — school director — vacancy.— The fact that a school director, who was eligible when elected, subsequently failed to pay his poll tax did not create such a vacancy in his office as would confer upon the electors the right to elect his successor.
    Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge;
    reversed.

      T. J. Crowder, for appellants.
    The ballots with five names voted for, there being only two vacancies and two directors to elect, were fraudulent and could not be counted. C. & M. Digest, 3829. 97 Ark. 221, not decisive of this case. The fact that three directors had failed to pay poll-taxes and were ineligible to hold office did not operate to vacate their offices. 90 Ark. 335. It only furnished grounds for their removal. Since there were but two vacancies and the only legal 'ballots were cast for Stafford and Ledbet-ter, 28 each, they should have been declared elected.

      Gravette & Bayner, for appellees.
    Three of the directors being disqualified to hold office, not having' paid a poll-tax, and there being two other vacancies, the electors properly voted for five directors, and having received the highest number of votes, they were elected. A person not having a receipt for poll-tax paid in proper time is ineligible to vote for or hold office of school director. 97 Ark. 221; § 3, art. 19, Const.; 107 Ark. 272. The failure of the three directors to pay poll-tax was a disqualification authorizing the election of their successors. 145 Ark. 443.

      T. J. Crowder, in reply.
    145 Ark. 443, cited by appellees, has no application here.
   McCulloch, C. J.

This appeal involves a contest between the parties for the office of school director of a special school district in Mississippi Connty.

Crosnell Special School District No. 6, the district in which this contest arises, was created by special statute approved'February 23,192Q, and the statute provides for a board of directors composed of six members. The present contest relates to the regular election in May, 1922, to provide for the succession of two of the directors whose terms expired at that time. There were seven candidates, and, according to the returns, appellants, J. T. Stafford and Gr. R. Ledbetter, received twenty-eight votes each, and appellees, O. E. Cook and P. H. Raspberry, received thirty-three votes each. Three other candidates, according to the face of the returns, received more votes than appellants. The returns were canvassed bj^ the county board of education, and appel-lees, Cook and Raspberry, entered upon the discharge of their duties. Appellants instituted a contest before the county board of education, and appealed to the circuit court of Mississippi County from an adverse decision of that board.

It appears from the evidence in the case, that the ballots cast for appellants contained only the names of two candidates, whereas the ballots received by appel-lees contained the names of five candidates. It is shown that these ballots were oast upon the theory that there were five vacancies, for the reason, it is claimed, that three of‘ the directors, Lloyd, Vernon and Hale, whose terms had not expired, had become ineligible by reason of having failed to pay their poll-tax. The proof shows further that these persons were' still exercising the duties of the office, and that there had been no abandonment or nonuser.

Tlie trial court .submitted to the jury the question concerning the alleged ineligibility of Lloyd, Vernon and Hale, and the jury made a special finding that they had not paid poll-tax for the previous year. The trial court then decided that these directors had rendered themselves ineligible to continue in office by reason of failing to pay poll-tax, and entered a judgment against appellants in their contest for the office. The effect of this decision of the trial court was to hold that, there being three ineligible directors, three vacancies occurred by reason thereof, and that there were three places to be filled on account of these vacancies, in addition to the places to be vacated by the expiration of terms at that time.

During the pendency of the contest in the circuit court, there was instituted in the chancery court- an action to restrain directors Lloyd, Vernon, Hale, G-. B. Ledbetter and O. S. Ledbetter, the -old directors, from exercising the functions of the office, and a temporary injunction was issued, but later dissolved, and the chancery ease was transferred to the circuit court and consolidated with the election contest. This appeal brings up all of the questions raised in both actions.

. The General Assembly of 1919 enacted a statute creating county boards of education. Crawford & Moses’ Digest, § 8853 et seg. The statute, in effect, substituted the county board of education for the county court in the supervision , of the school affairs of the respective counties in which the statute was applicable. We have decided that the Legislature did not exceed its powers in creating the board and conferring those duties upon it. Mitchell v. Directors of School District No. 13, 153 Ark. 50. Section 11 of that statute provides, in substance, that the returns of all school elections shall be made to the county board, that the board shall canvass the returns and “certify the result to the county court for proper record,” and that “all contests pertaining to school elections shall be filed with the county board of education within fifteen days after such election, and the board shall, as soon as practicable after ¡the contest is made or filed, grant a hearing.” There is a further provision for an appeal ‘ ‘ to the circuit court in the manner now provided by law for appeals from county courts.”

Counsel in the case have not suggested any controversy concerning the question of the power of the Legislature to confer upon an election board as a special tribunal the authority to hear contests for the office of school director, but the question naturally ¡arises, and we proceed to its decision as a preliminary matter in this controversy.

We have decided that the office of school director falls within the designation of county officers within the meaning of our statute regulating contests, and that, prior ho the statute now under consideration, such a contest must originate in the county court. Ferguson v. Wolchansky, 133 Ark. 516. The Constitution itself provides the method of contesting elections for certain offices, and it is specially provided in article 19, § 24, that the Legislature may provide'by law for the mode of contesting elections in cases not otherwise specifically provided for in the Constitution itself. It is thus seen that the Constitution itself has conferred upon the lawmakers adequate authority to provide for all election contests, leaving the matter entirely within the will of the Legislature as to where and by what means contests shall be conducted. The only question which arises is whether or not the exercise of this authority by the lawmakers was intended to be limited to the courts established by the Constitution. This very question was decided by the court in the case of Govan v. Jackson, 32 Ark. 553, where it was said:

“There is nothing in the Constitution, that we can see, which requires that the contest should be made before the county court or that restrains the Legislature from erecting some other tribunal -or board for its determination; on the contrary, the power of the Legislature to establish such, if not distinctly expressed, is plainly implied in § 52 of art. 7, which is as follows: ‘§ 52. That in all cases of contest for any county, township or municipal office, an appeal shall lie, at the instance of the party aggrieved, from any inferior board, council or tribunal to the circuit court, on the same terms and conditions on which appeals may be granted to the circuit court in other cases, and on such appeals the case shall be tried de novo.’ ”

The precise question now before ns was not involved in Govan v. Jackson, supra, but the statement above quoted was an essential part of the reasoning of the court in disposing of the other questions involved, hence it cannot be-treated as mere dictum. This view of the matter is in accord with the great weight of authority in other States, where it is generally held that election contests are not strictly judicial in the sense that they must be determined by the established courts, and it is generally held that, unless the Constitution forbids, the Legislature may refer such contests for settlement to any court or tribunal of its selection. 9 R. C. L. p. 1158.

We conclude therefore that the statute is valid in this respect, and that the contest was properly instituted before the board of education and carried to the circuit court, on appeal.

This brings us to a consideration of the merits of the contest — whether or not the ballots cast for appellees were valid expressions of the will of the voters in favor of their election.

It is undisputed that all of the ballots oast in favor of the election of appellees contained the names of five candidates, and,' if it be found that there were not so many offices to be filled at that election, it follows from well-settled principles that those ballots must be thrown out, for the reason that, with more names on the ballot than there were offices to be filled, there is no means of ascertaining which one of the candidates the voters meiyt to favor with their ballots.

There was no designation on these ballots to indicate which of the candidates were voted for as the successors of the officers whose terms expired iat that time, and this would necessarily result in the election of appellants, as the ballots cast in favor of all of the other candidates contained the names of five candidates, the same as those cast in favor of appellees. The theory upon which the voters cast their ballots for five candidates was that there were three vacancies on account, of the ineligibility of directors Lloyd, Yernon and Hale, but this conception was entirely erroneous, for there were, in fact, no .such vacancies. We must treat it as settled by the finding of the jury, upon conflicting testimony, that Lloyd, Yernon and Hale had not paid poll-tax for the previous year, and were-not qualified electors. White v. Hughes, 97 Ark. 221. There was no attempt, however, to prove that these men were ineligible at the time they were elected and took office.' Conceding, without deciding, that a condition of ineligibility arising after election and taking office would constitute ground for removal, it does not follow that such ineligibility vacates the office ipso fpcto; on the contrary, it seems clear to us that such subsequent ineligibility merely affords ground for removal, and does not vacate the office.

“Vacancy in office” means the absence -of an incumbent of the office who has been legally inducted therein. Words and Phrases, vol. 4, p. 1122 (second series); 22 R. C. L. p. 437. If the office has not been filled by a de jure incumbent, then the vacancy still exists, but, when the induction into office is legal .and the person so inducted is eligible at -the time, his continuance in the office prevents a vacancy until he abandons the office or is removed therefrom in the manner provided by law. Mere existence of grounds for removal do not constitute a vacation of an office so as to confer upon the electors the right to elect a successor. Any other view of the matter would constitute an expulsion or removal of the incumbent from actual incumbency of the-office without an opportunity to be beard. This is tbe principle which governed tbe case of School District v. Garrison, 90 Ark. 335, though the application of the principle was somewhat different than in this case.

Counsel for appellees rely on the decision in Means v. Terral, 145 Ark. 443, as supporting their contention that there were actual vacancies which the electors were authorized to fill. We do not think the principles' announced in that case have any application, for there was an actual vacancy in the office, which was temporarily filled by appointment, and, according to our interpretation of the Constitution, the voters were authorized to elect a successor — not because of an actual vacancy, but because the law authorized the election of a successor to the appointee of the Governor.

Our conclusion upon the whole case is that the judg-'. ment of the circuit court is erroneous, upon the undisputed evidence, and that appellants are entitled to a judgment in their favor, the case being fully developed from the facts.

The judgment is therefore reversed, and the cause remanded, with directions to the circuit court to enter a judgment in favor of appellants, declaring them to be duly elected and entitled to induction into office.