text:
    Maryland Motor Car Insurance Company v. Newell Contracting Company.
    Opinion delivered April 20, 1925.
    1. Insurange^-evidence op damage. — In an action on a fire policy insuring a motor truck, where there was an issue a® to whether in fact an award of damages had been made, it was not error to admit evidence of damage, as against the objection , that it impeached the award.
    2. Insurance — award—finding.—In an action on a fire policy on a truck where an award relied on iby defendant was denied to have been authorized, evidence held to sustain finding'that the awiard was not binding.
    Appeal from Crittenden Circuit Court; G. E. Keck, Judge;
    "affirmed.

      Hughes <& Hughes and R. L. Bartels, for appellant.

      Scott é Burnett, for appellee.
   Smith, J.

This is the second appeal in this case, the opinion on the first appeal 'being found in 156 Ark. 424. The suit was brought on a fire insurance policy issued by the defendant insurance company to recover the damage by fire to an automobile truck owned by the plaintiff.

As appears from the former opinion, the suit was brought on the theory that there had been an arbitration of the damages and an award fixing the loss at $1,675.

It appears that the plaintiff had selected M. L. Aldridge as his representative, and the insurance company had selected J. K. Dobbs to represent it, and that, in the agreement for the arbitration, the name of Phil Wilenzick had been inserted as the umpire. At the first trial the court, over the objection of the defendant, submitted the cause to the jury on the sole issue whether an award was made by Wilenzick, who had been selected by both parties as umpire. We there said that the agreement for the appraisal provided that the award should be in writing and signed 'by any two of the appraisers, and that, as the Wilenzick award failed to comply with this requirement, it was error to submit the question whether there had been an award in which Wilenzick participated.

It was the contention of the insurance company that W.' W. Harris had been substituted as umpire for Wilen-zick, and that there had been a written award made by Harris, in which Aldridge and Dobbs had participated, and we said the issue whether the Harris award conformed to the submission agreement should have been submitted to the jury.

Upon the remand of the cause the plaintiff elected to abandon the allegation of the complaint that there had been an award, and sued directly on the policy, and the court treated the complaint as being so amended. The defendant objected to this change in the plaintiff’s cause of action, but the objection does not appear to have been based on the ground of surprise.

The policy was for $2,500, and there was testimony legally sufficient to support the verdict of the jury that the damage by fire was as much as $2,000, for which amount the jury returned a verdict, and from the judgment pronounced thereon is this appeal.

The testimony on behalf of the insurance company was to the effect that the Wilenzick award was never completed, and, by consent of both Aldridge and Dobbs, Harris was selected as umpire. According to appellant, Aldridge suggested Harris as the third man, and the suggestion was accepted by Dobbs, and the name of Wilenzick was stricken from the agreement and that of Harris was inserted. The testimony on behalf of appellant is to the further effect that N. A. Carter, a mechanic, was employed to inspect the car and to estimate the damages to the various parts thereof, and, according to Carter’s estimate, the damage was $650, but, when Aldridge dissented, $100 was added, and an award was drawn up in the sum of $750, which was signed by Dobbs and Harris.

If the facts thus stated were undisputed, there would be nothing to this lawsuit. The insurance company would have been entitled to have the court instruct the jury to return a verdict in the plaintiff’s favor for $750, the amount for which the insurance company offered to confess judgment.

The defendant objected to much of the testimony offered by the plaintiff, and especially to that tending to show the extent of the damage, this being done on the theory that the award could not be thus impeached. The defendant also excepted to the refusal of the court to instruct the jury that the award was presumptively valid, and that the award, valid upon its face, and presumptively good, could not be impeached except by testimony that was clear and convincing.

We think no error was committed in admitting the testimony objected to, and in refusing the requested instruction, for the reason that the sole question in issue, aside from the damages, was whether there had in fact been an award.

Upon tlús issue the cause was submitted to the jury under an instruction reading as follows: “If you find from the evidence in the case that the appraisers selected by the parties, namely, J. K. Dobbs and M. L. Aldridge, agreed upon and selected W. W. Harris to act as umpire, and if you further find that any two of the three parties named, that is, J. K. Dobbs, M. L. Aldridge and W. W. Harris, made an award in writing by which the amount of damage of the car was determined, you should find that that is the amount for which the plaintiff is entitled to a verdict in this case. ’ ’

In another instruction the court told the jury that, although Aldridge did not participate in the selection of Harris as umpire, yet “if, after Harris began to act as such umpire, Aldridge and Dobbs acquiesced and concurred in his acting as such, and proceeded with the appraisement, participating and concurring in same, and recognized him as the duly acting umpire, then in that event Harris would be authorized to act as such umpire the same as if he had been duly appointed before he began to act.”

Defendant could not ask that the issue be submitted under more favorable instructions.

Aldridge testified that he participated in only one arbitration, and that was the one in which Wilenzick participated. The plaintiff undertook to prove by this witness that an award was arrived at under the first submission, but that it was not signed by himself and Wilenzick because Dobbs was not satisfied with the award. This testimony was excluded by the court, and the witness was not permitted to testify that an award had been made in which Wilenzick participated, because, under the decision of this court on the former appeal, that award was not according- to the agreement for the arbitration.

But the witness did testify that he did not agree to the selection of Harris as umpire; that he and Dobbs signed the agreement naming Wilenzick as umpire, and that, after he had signed this agreement, Dobbs drew a pen through the name of Wilenzick and inserted that of Harris, 'but that this was done without his consent. He admitted that Dobbs asked him to name a good man, and that he suggested the name of Harris, and was present when the truck was examined and the damage figured up, but he testified that he was never a party to this arbitration, and that he assigned then as his reason for refusing to -participate the fact that the matter had already been arbitrated.

Under the conflict in the testimony the court was correct in holding that the award signed by Dobbs and Harris was not conclusive and binding,.and the question whether Harris had been selected was properly submitted to the jury, and the testimony of Aldridge, if credited, is sufficient to support the finding of the jury that Harris had never been selected as umpire, and, if this is true, there was, of course, no award.

No error appears, and the judgment is affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    St. Louis Southwestern Railroad Company v. Alverson.
    Opinion delivered April 20, 1925.
    1. .Appeal and error — necessity for motion for new trial.— Where plaintiff filed no motion for new trial, her cross-appeal will not raise the question whether the court erred in directing a . ": new trial on one of the counts of her complaint.
    2. - - Carriers — penalty for excessive charge. — Where the first con- ! . ductor.on defendant’s train on which plaintiff was a passenger failed to punch plaintiff’s ticket and return it to her, -and the second conductor required plaintiff to pay a second time, the ■1; defendant was responsible for the acts of both conductors, and - ' plaintiff, being required to pay excess fare, was entitled to recover the statutory penalty provided by Crawford & Moses’ Dig., §. 887. . ...
    3. Carriers — -penalty for. excessive . charge — defense.—Where ‘ defendant’s conductor deliberately and intentionally charged excessive fare from a passenger, it is no defense to an action to recover the statutory penalty that the conductor promised to return the money if the fare had been paid and did offer to return it after ascertaining that it had been paid.
    Appeal from Lonoke Cirenit Court; George W. Clark, Judge;
    affirmed.
    J. D. Turney, A. H. Kiskaddon and W. T. Wool-dridge, for appellant.

      E. H. Timmons, for appellee.
   Smith, J.

On August 8, 1923, appellee, a young lady, and Howard Gentry, a young man, who is her cousin, bought tickets from the appellant railroad com-* pany from North Little Rock to Geridge, a station on appellant’s railroad, for which they each paid the sum of $1.44. After purchasing the tickets they boarded the train and became passengers in a coach which went through from North Little Rock to Gillette, a station beyond Geridge. This train passed through England en route to Geridge, and at England the car in which appel-lee was a passenger was attached to a train which ran from England to Gillette. After the train left North Little Rock the conductor in charge of the train took up the tickets of appellee and her cousin, and placed a ticket check in the curtain of the window by which they were seated. The conductor should have punched these tickets to show that they had been used to England, and should have returned them, as there was a change of conductors at England.

The appellee did. not leave the coach at England. The railroad company has a rule that no one is allowed to enter a train without exhibiting to some employee of the company a ticket entitling the holder to passage on the train. An employee of the company performed this service for it at England.

After the train left England the new conductor, whose name was Williamson, went through the train collecting fares, and, when he came to appellee, he demanded her fare. She explained that she had .no ticket, as she had given it to the conductor in charge of the train out of North Little Rock. Conductor Williamson said it was strange that the first conductor had not returned the ticket, as he should have done. Appellee explained that she did not know this, and that she- supposed the first conductor knew what he was doing, and she called the attention of Conductor Williamson to the ticket check in the window curtain which the first conductor had placed there. Notwithstanding this explanation, Conductor Williamson stated that appellee and her companion would each have to pay 58 cents — the fare from England to G-eridge — or he would put them off the train. They told the conductor that they did not have that much money, but he said that made no difference, as he was not running an excursion train. A passenger sitting near appellee and her companion stated to the conductor that he had seen them buy tickets in North Little Rock, but the conductor told this passenger to keep his bill out of it.

The conductor told appellee and her companion they would have to get off, and gave a signal for the train to stop. The conductor opened the door of the coach and told appellee and her companion to come on out, and they got up and went to the door of the coach, and, as voung Gentry was about to get off. appellee asked the conductor to put her baggage off at Geridge. The conductor asked her if she had a baggage check, and she told him she had, and she exhibited it to him. The conductor examined the baggage check, and, after doing so, told appellee and her companion to go back and sit down, that he would let them go on to Geridge, but that he would put the trunk off at Humnoke and hold it for the $1.16, the amount of the two fares to Geridge.

Appellee and young Gentry, her cousin, were on their way to visit Tom Alverson, a brother of appellee. Mr. Alverson boarded the train at Humnoke to meet his guests, and they explained what had happened to him, and he told the conductor he would pav the two fares the next morning on the return trip of the train, as lie did not have with him the amount of money required to pay the two fares. This was not satisfactory to the conductor, and the trunk was put off at Humnoke. The conductor testified that he did this because there was a station agent at Humnoke, who could collect the $1.16 when the trunk was called for, while there was no agent at Geridge who could make the collection.

Mr. Alverson met this train the next morning on its return trip; and paid Conductor Williamson the $1.16. Williamson stated to Alverson at the time that he had wired the first conductor to ascertain if a mistake had been made, and that, if a mistake had been made, he would refund the money. After paying these fares Alverson hired an automobile, for which he paid $1.75, and drove over to Humnoke for the trunk. In passing through Humnoke Conductor Williamson told the station agent at that place to release the trunk, and this was done, and Alverson carried it to his home.

As soon as Williamson saw the first conductor, he told him what had occurred, and the first conductor admitted that he had neglected to return the tickets to appellee and her companion. On his next trip through Geridge, Williamson looked around for Alverson, but he failed to see him. He did this on each successive trip through Geridge for several days. Williamson then told the railroad section foreman at Geridge what had happened, and requested the foreman to tell Alverson that the money would be returned to him. This message was delivered by the foreman, but Alverson stated that he had not made the mistake, and that he would not meet the train. About a week afterwards Williamson himself saw Alverson at Geridge and tendered him the $1.16. Alverson declined to accept the money, and stated to Williamson that the matter had been placed in the hands of his attorney.

Williamson testified that he had no intention of collecting any excess fare from appellee and her companion, and that he demanded the fare because they had no tickets. He admitted that his attention was called to the conductor’s train check in the window curtain, and that it may have had the letter ‘ ‘ G- ” on it, but that the letter “G” did not necessarily stand for Geridge. He testified that, when he explained to Alverson what he proposed to do about the trunk, assent was given. This was denied by Alverson, who testified that he had no alternative, and could only do what the conductor required.

Appellee prayed for judgment, for the statutory penalty for an overcharge by a carrier on account' of the 58-eent overcharge of fare, and in a second count she prayed for the penalty on account of the $1.75 .she was required to pay for delivery of the trunk to the destination to which it had been checked. Young Gentry also sued for the statutory penalty, and the cases were-tried together. The jury returned a verdict for appellee on the first count of her complaint in the sum of $52.33, and, under the direction of the court, found against her on the second count of her complaint. In the case of Gentry there was a verdict and judgment for the sum of 58 cents.

The railroad company has appealed from the judgment in favor of appellee on the first count of her complaint, and she has prayed a cross-appeal on the second count.

This cross-appeal will be disposed of by saying that appellee filed no motion for a new trial. Gentry did not appeal. It remains therefore only to determine whether the judgment in appellee’s favor on the first count of her complaint should be affirmed.

The railroad company made a tender to appellee of $2.33, this being the amount of the excess fare and the sum required to haul the trunk from Humnoke, and, in the instructions requested by the railroad company, the recovery would have been limited to that amount.

Under the instructions given by the court the question submitted to the jury was whether the conductor Williamson had acted as a reasonable, careful and pru-deñt person in deciding-whether appellee had paid her fare and in demanding the additional fares.

This instruction was more favorable to the railroad company than the law requires. It is an undisputed, admitted fact that appellee had paid her fare, and it was only through the negligence of the first conductor that the question arose.

The doctrine of the case of St. L. I. M. & S. R. Co. v. Frisby, 95 Ark. 281, is controlling here. In that case there was a question whether the ticket agent or the train auditor had made a mistake which resulted in the auditor collecting from the passenger an additional fare. It was there said that the statute under which the suit was brought (§ 6620 Kirby’s Digest, which is now § 887 C. & M. Digest), and which is the same section under which appellee brought the instant case, was intended “to compensate the party injured for his expenses in the prosecution, and to compel the payment of such a sum by the company violating the law as will effectually stop the practice.”

It was there further said: “The language of the statute is £ shall eharge, demand, take or receive from any person or persons any greater compensation,’ etc., and is referable to the company itself, and not to its agents. Of course, a corporation can only act through agents; but where it is, in direct and explicit terms, forbidden to do a thing, the acts of all its agents who contributed to the thing done must be considered the acts of the corporation itself. The thing forbidden by the statute under consideration is charging- or receiving fare in excess of the maximum rate provided by law. The tickets in question seem to have been of the kind merely naming the places between which they were good for passage, and, as such, were in the nature of receipts for the passage monev. 1 Fetter on Harriers of Passengers, § 275; Moore on Carriers, p. 806.

“The undisputed evidence shows that the tickets were exchanged by mistake. The plaintiff’s evidence shows that the mistake was explained to the train auditor, and that she was entitled to have the mistake corrected. When that is done, we have the case of a passenger presenting to the auditor a receipt for passage money of the amount the company was allowed by law to charge. The auditor refused it, and demanded and received an additional sum in excess of the amount so tendered. The ticket seller and the auditor were each entitled to receive money for passage, and their acts must be deemed to be those o.f 'a single agent; and, when so treated, it is evident that a greater fare than that allowed by law was demanded and received by the railroad company.”

So here the first conductor, as well as the second, was entitled to collect fares, and the first conductor took from appellee the ticket which was intended to evidence the payment of the fare to appellee’s destination. Each conductor acted for the railroad company, which was as much responsible for the acts of one of the conductors as it was for the other, and the joint action of the two conductors resulted in appellee being required to pay excess fare. She was, of course, a party aggrieved within the meaning of the statute. St. L. I. M. & S. R. Co. v. Frisby, supra; St. L. I. M. & S. R. Co. v. Freeman, 95 Ark. 218.

It is insisted, however, that the undisputed testimony shows that there was in fact no intention of exacting an excess of fare; that, when Conductor Williamson collected the $1.16, he announced that he would return the money if he found that the fare had been paid, and that he did offer to do so within a reasonable time after ascertaining that a mistake had been made.

We have held that a railroad company is liable for the penaltv prescribed by the statute only when its agent intentionally charged a passenger an excessive fare, and that if the excess was collected as a mere inadvertance, the penalty could not be imposed. St. L. I. M. & S. R. Co. v. Baker, 118 Ark. 69, and casos there cited.

Here, however, there was no such inadvertence as existed, in the case cited. The excess was collected by Conductor Williamson, and was done deliberately, under circumstances which, according to the verdict of the jury, under the instructions given, would have satisfied a reasonable man that appellee had paid her fare.

It is true Conductor Williamson said he would return the fare if he found a mistake had been made, and that he later offered to do so; but this did not justify the collection of the excess fare. If a railroad company could defeat an action of this kind by saying that it would rectify any mistake it might make after ascertaining that a mistake had been made, passengers would be deprived of much of the protection which the statute was intended to afford.

Here there was a young lady, referred to by some of the witnesses as a girl inexperienced in traveling, who surrendered her ticket to the agent of the railroad company who had the right to demand it. She -did not ask its return, because she did not know that she would have further use for it. Like many other passengers might be, she was not fortified with funds to meet any illegal exactions, and, but for the fortuitous circumstance that she had a check evidencing her right to the possession of a trunk which was being transported on the train, and which the conductor regarded as sufficient collateral for the $1.16 railroad fare, she would have been subjected to the inconvenience, discomfort and humiliation of being put off the train, and this trunk, which was put off the train before it reached its destination, was not surrendered until the excess fare was paid.

The act of the first conductor in failing to return to appellee her ticket was, no doubt, an act of carelessness, but the railroad eomnany was responsible for that act. as it was done bv the conductor in the discharge of his duties as such, and it proximatelv resulted in the second conductor demanding and deliberately receiving 58 cents in payment of a fare which had already been fully paid.

Under the circumstances of the case no error would have been committed had the jury been directed to return a verdict in appellee’s favor for the penalty. The verdict of the jury was for the minimum amount of the penalty prescribed by the statute, and, as no error appears, the judgment is affirmed.


author: HumphReys, J. Humphreys, J.

text:
    White Company v. Bragg.
    Opinion delivered April 20, 1925.
    1. Trial — impeachment of verdict — evidence of juror. — A juror will not be heard to say that he never assented to the verdict after an opportunity had 'been given him to express his dissent when the verdict was rendered. .
    2. Sales — conditional sale — liability of seller on resale.— Under a Tennessee statute providing that, in case of a conditional sale with retention of title, “should the 'seller, having regained possession of said property, fail to advertise and sell the same as provided by this article, the original purchaser may recover from said seller that part of the consideration paid,” held that where the seller failed to advertise and sell the regained property in the manner and time required by the statute, the original purchaser may recover from him the entire amount paid on the contract, without set-off or 'abatement for the use, hire or rent of the property; the statute providing a right which by comity will be enforced in other States. .
    3. Appeal and error — change of theory on appeal. — A party cannot on appeal, contend for a theory of the case different from that for which he contended in the trial court. .
    Appeal from Crittenden Circuit Court; G. E. Keck, Judge;
    affirmed.

      Gmada & Williams, and S. V. Neely, for appellant.

      Caraway <& Isom, for appellee.
   HumphReys, J.

Appellant brought this suit in the circuit court of Crittenden County against appellee to recover a 'balance of $1,760 upon a note given for the purchase money of an automobile bus. It was alleged iu the complaint that appellant sold the bus to appellee in Memphis, Tennessee, under a conditional sales contract, for $6,134, of which sum $1,134 was paid in cash, the balance being payable in installments, evidenced by seven promissory notes; that the conditional contract provided that the title to the bns should remain in appellant until the purchase money was paid in full, and that, upon failure to pay same at maturity, appellant should have the right to repossess and sell it at public auction, credit the amount received on the purchase money, and recover the balance from appellee; that, on December 12,1922, there remained due and unpaid $2,288.08, whereupon appellant seized and sold the bus at public sale, at which sale it brought $528.08, and that said amount was applied upon the debt, leaving a balance of $1,760.

Appellee filed an answer admitting all the allegations in the complaint, except the allegation that appellant sold the bus at public sale in the manner provided under the law in Tennessee, and also filed a cross-bill to recover $4,000 which he had paid appellant on the purchase price of said 'bus, upon the ground that appellant had rescinded the contract by failing to advertise and sell the bus in accordance with the laws of Tennessee.

The cause was submitted to a jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict in favor of appellee on his cross-bill for $4,200, which was reduced by the court to $3,900. A judgment was rendered in accordance with the verdict as reduced, from which is this appeal.

A motion for a new trial was filed upon several grounds, one of which was that the verdict returned by the foreman was not the verdict of the jury. Appellant introduced two of the jurors in support of his motion, who testified, in substance, that the verdict agreed upon by the jury was to the effect that neithof appellant nor appellee should recover anything from the other, and that neither had assented to the verdict returned into court by the foreman of the jury. On cross-examination, however, they admitted that, when the verdict was returned and read by the clerk, the court asked if it was the verdict, and they, with the other jurors, held up their hands in approval. Section 1300 ot Crawford & Moses’ Digest provides a method for testing the correctness of a jury’s verdict. The statute reads as follows:

“The verdict shall be written, signed by. the foreman, and read by the court or clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again, but, if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.”

The purpose and intent of this statute was to prevent a juror from impeaching the verdict after it had been returned into and accepted by the court.

“It is well settled that a juror will not be heard to sav that he never assented to the verdict after an opportunity has 'been given him to express his dissent, when the verdict was rendered. ” 3 Ene. Ev„ 228; 8 Enc. Ev., 973. The motion to set aside the verdict was properly overruled. *

The statutes of Tennessee covering conditional sales of property, digested in Shannon’s Code, is as follows:

“When any personalty is sold upon condition that the title remains in the seller until that part of the consideration remainsunpaid, it shall be the duty of the seller, having regained possession of said property because of the consideration remaining unpaid at maturity, to, within ten days after regaining said possession, advertise said property for sale to the highest bidder, by printed notice, said notice to be posted at least ten days before the day of sale, and contain a description of the property to be sold and the time and place of sale, under the debt unsatisfied before the day of sale, then it shall be the duty of said original seller to sell said property, and, with the proceeds of said sale, satisfy the amount of his claim arising from said conditional sale, and the expenses of advertisement, if any, and the remainder of said proceeds, if any, he shall pay over to the original purchaser; but the said original seller and purchaser may, at any time, by agreement, waive the sale provided in this article.
“Should said property, at the sale provided by this article, fail to realize a sufficient sum to satisfy the claim of the seller, the balance still remaining due on said claim shall be and continue a valid and legal indebtedness as against said original purchaser.”
“Should the seller, having regained possession of said property, fail to advertise and sell the same as provided 'by this article, the original purchaser may recover from said seller that part of the consideration paid, in an action before any justice of the peace or court having’ jurisdiction. ’ ’

The Supreme Court of Tennessee upheld this act as constitutional, and construed it as meaning that “it is the positive duty of the original vendor to resell the property upon his reclamation thereof, under the contract, and, for his failure to do so within the manner and time required by the statute, the original purchaser may recover from him the entire (amount) paid on the contract, without setting off or abatement for the use, hire or rent of the property. ’ ’

• The undisputed testimony shows that on December 32,1922, default was made in the payment of the balance of the purchase money due on the notes; that the balance due thereon was $2,288.08, and that appellant took possession of the bus in Memphis for the purpose of selling it in accordance with the terms of the. contract and the laws of Tennessee. There is a conflict in the testimony as to whether the sale of the bus was advertised and made in accordance with the law. This issue was submitted to the jury, under correct instructions, and decided adversely to appellant. The finding of the jury is therefore conclusive upon it.

Appellant makes the further contention, however, that, because appellee had sold his equity in the bus to O. B. Cook, he had no right to recover the amount he paid appellant as purchase money for the bus. The record does show that, by and with the consent of appeb lant, appellee sold his equity in the bus to O. B. Cook, but also shows that appellant did not release appellee from the original contract. On the contrary, appellant brought suit against appellee upon the original contract. We are unable to see why appellee cannot maintain a cross-action under the original contract, if still bound by the contract. The Tennessee statute provides that the original purchaser may recover the purchase money paid to the vendor if said vendor retakes the property and fails to sell it at public sale after advertising the sale in the manner and for the time prescribed by the statute. The statute created a right and not a remedy, and the right will be enforced, through comity, by courts of other States.

No error appearing, the judgment is affirmed.

Humphreys, J.

(on rehearing).. Our attention has been called to the facts that appellee sold his equity in the bus to 0. B. Cook, and that his right as original purchaser under the statute of Tennessee to recover the amount he paid appellant had passed to the subvendee. Appellant has cited the case Tschopik v. Lippincott (Tenn.) 48 S. W., p. 130, in support of its contention that appellee had no right to recover on his cross-bill because he had sold his equity in the property to O. B. Cook before filing same. This question was not made an issue in the trial court by the pleadings, testimony, and instructions of the court. It is well settled in this State that “a partv cannot, on appeal, contend for a theory of the case different from that which was contended for in the trial court.” Southern Ins. Co. v. Hastings, 64 Ark. 253; Shinn v. Plott, 82 Ark. 260. In view of this rule, it is unnecessary for us to discuss the effect of the decision cited upon the Tennessee statute involved in the instant case.

The motion for a rehearing is therefore overruled.


author: HUMPHREYS, J.

text:
    Williams v. Layes.
    Opinion delivered April 20, 1925.
    1. Bills and notes — purchase op patented machine — “merchant” defined. — The manufacturer of a patented cotton press held not a “merchant,” within Crawford & Moses’ Dig., § 7959, so as to be able to accept a negotiable note in payment, without showing on face of the note that it was executed in consideration of a patented machine, as required by § 7956, a “merchant” within the meaning of § 7959 being a regular dealer in the mercantile business.
    2. Bills and notes — illegality op note — estoppel.—The fact that the maker of a note which was invalid because given in consideration of a patented machine without showing that fact on its face, assured a purchaser of the note that it would be paid at maturity, did not estop him from setting up its illegality as a defense.
    Appeal from.' Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      Kin,cannon & Kmoannon, for appellant.

      White é White, for appellee.
   HUMPHREYS, J.

Appellant brought this suit in the Northern District of the Circuit Court of Logan County, against appellee, to recover judgment upon a note executed on February 7, 1922, by appellee, to the order of (dinners ’ Compress Trust of Milwaukee, Wis., in the sum of $1,000, bearing interest at the rate of 6 per cent, per annum from date, which had been assigned to him for a valuable consideration before maturity.

Appellee filed an answer admitting the execution of the note, but alleging its invalidity because given in consideration for a complete double system cotton press with condenser, for baling cotton in round bales, a patented thing, in violation of § 7956 of Crawford & Moses’ Digest, which is as follows:

“Any vendor of any patented machine, implement, substance, or instrument of any kind or character whatever, when the said vendor of the same effects the sale of the same to any citizen of this State, on credit, and makes any character of negotiable instrument in payment of the same, the said negotiable instrument shall be executed on a printed form, and show npon its face that it was executed in consideration of a patented machine, implement, substance or instrument, as the case may he, and no person shall he considered an innocent holder of the same, though he may have given value for the same before maturity, and the maker thereof may make defense to the collection of the same in the hands of any holder of said negotiable instrument, and all such notes not showing on their face for what they were given shall be absolutely void.”

Appellant filed a reply alleging: first, that the navee in the note was a regular merchant or dealer, and sold the patented thing to appellee in the regular course of business, and was excepted from the provisions of the statute quoted above § 7959 of Crawford & Moses’ Digest, which is as follows: ‘ ‘ This act shall not apply to merchants and dealers who sell patented things in the usual course of business.” And second, that appellee was estopped from repudiating the note by making the following statement to appellant before he paid for the note, towit: “If nothing bad happens, I am for sure that I will be able to pay the note when due, or before, which I hope I will.”

The cause was submitted to the jury upon the pleadings, testimony adduced by the respective parties, and the instructions of the court, which resulted in a verdict for appellee, and a consequent judgment dismissing the complaint of appellant, from which is this appeal.

The record reflects the following facts: The note was executed in part payment for a patented cotton press to the manufacturer thereof, a Wisconsin corporation, that sold same to appellee through its traveling agent, who was president of said corporation. The patented machine was sold directly from the facto^. For some reason not appearing, the press was never delivered to appellee. The note did not show on its face that it was executed for a patented thing. Appellant purchased the note and procured an assignment thereof, and, before sending a check in payment of it, he wrote a letter to appellee to ascertain whether the note would be paid, in which he stated that he did not know the payee in the note, and was relying for payment thereof on appellee. He requested, in the letter, that appellee reply on the bottom of the letter, and return same to him. The reply to appellee appears in the reply appellant filed to appel-lee’s answer, heretofore set out. After receiving appel-lee’s reply, appellant mailed a check to dinners’ Cotton Compress in payment of the note.

Appellant first contends for a reversal of-the judgment because the patented machine was sold by a merchant or dealer to appellee in the regular course of business. We do not think the manufacturer and the seller of the patented cotton haler was included in the class of business permitted by § 7959 of Crawford & Moses’ Digest to sell patented things and accept negotiable notes in payment thereof which do not show on their face that, they were in consideration of patented machines, etc. The persons referred to in that section are regular merchants or dealers-in the mercantile business.

Appellant’s next and last contention for a reversal of the judgment is that appellee estopped himself from interposing his statutory right of defense to the note by writing appellant that he was sure that he would be able to pay the note before or when due, if nothing bad happened. Under § 7956 of Crawford & Moses ’ Digest, this note was void because it was not stated in the face thereof' that it was given for a patented thing. This court is committed to the doctrine that contracts made in violation of law are not converted into valid obligations by subsequent promises to perform them, and that the maker of a void note will not estop himself from or waive his right to set up the illegality thereof as a defense thereto. City National Bank v. DeBaum, 166 Ark. 18.

No error appearing, the judgment is affirmed.


author: Humpheeys, J.

text:
    Kansas City Southern Railway Company v. Haynie.
    Opinion delivered April 20, 1925.
    1. RAILROADS — INJURY TO STOCK — BURDEN OF PROOF. — In the absence of allegation and proof that stock was injured by contact or collision with a train within the State, no presumption of negligence arose, and it devolved on plaintiffs to show affirmatively by a preponderance of the evidence that the injury was caused by the negligent operation of defendant’s train.
    2. Appeal and error — instruction harmless when. — An infraction that if the jury believed from a preponderance of the testimony that plaintiff's stock was injured on defendant railroad’s right-of-way because of the negligent running of defendants’ train, the burden was on defendant to show that the injury was not due to the negligent operation of the train, held not prejudicial to defendant, though meaningless.
    3. Railroads — negligence in frightening animals. — Evidence held to warrant finding that stock injured on defendant’s right-of-way were needlessly frightened and stampeded across a cattle-guard and thereby injured through the negligent operation of defendant’s train.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.

      June R. Morrell, Jos. R. Brown, and Jas. B. McDon-ough, for appellant.'

      DuLaney & Steel, for appellee.
   Humpheeys, J.

This is an appeal from a judgment, rendered in the circuit court of Little River County, against appellant in favor of appellees, for $315, based upon an injury upon nine head of mules and horses caused through the alleged negligent running of appellant’s passenger train No. 4, leaving out of Wilton about 1 o’clock in the afternoon of June 10, 1923.

Appellant contends for a reversal of the judgment upon the alleged ground that there is no substantial evidence in the record tending to show that the injury of the stock resulted from the negligent operation of its train. It was not alleged, and there was no evidence in the record tending to show, that the stock was injured by contact or collision with appellant’s train while running in the State, so no presumption of negligence arose, and it devolved upon appellees to affirmatively show by a preponderance of the evidence that the injury to the stock was caused by the negligent operation of appellant’s train. Earl v. St. L. I. M. & S. R. Co., 84 Ark. 507; Central Ry. Co. v. Lindley, 105 Ark. 294; J., L. C. & E. Ry. Co. v. Kilgore, 108 Ark. 308. This issue was clearly submitted to the jury in instruction No. 2, requested by appellee, and instruction No. 2, requested by appellant. Instruction No. 1, requested by appellee and given by the court, does not contradict either of the instructions referred to above, as it leaves the burden upon appellee to show that the injury was caused by the negligent operation of appellant’s train. For this reason, although practically meaningless, the instruction was not harmful. It is as follows:

“The court instructs the jury that, if you believe from a preponderance of the testimony in this case that the stock alleged to have been injured in plaintiff’s complaint was injured on the right-of-way of the defendant’s road, and that such injury was due to the negligent running of defendant’s train, then the burden is on it to show that such injury was not due to its negligence in operating such train.”

The only objection urged to the instruction requested by appellees and given by the court is that they are abstract. These objections will be considered and determined in considering and determining whether there is any substantial evidence in the record supporting the verdict.

Appellees' were road contractors, and owned a number of horses and mules with which they were constructing a road near .Wilton. Some one left the lot gate open where they were kept, and nine head of them got out and wandered onto the railroad right-of-way, which was fenced. The railroad ran north and south and curved slightly to the west, north of Wilton. There was a cattle-guard across the track, in a slight cut anywhere between a quarter and a half-mile north of Wilton. There was nothing to obstruct the view of the engineer and fireman between Wilton and the cattle-guard. Passenger train No. 4 left Wilton, going north, at a speed of about twenty miles an hour, and, after traveling two hundred yards, sounded the stock alarm. This' attracted the attention of T. S. Haynie, who was out looking for his mules and horses, and J. A. Miller, who was traveling toward the railroad right-of-way in a lane leading in the direction of the cattle-guard,

T. S. Haynie testified, in substance, that he followed after the train, which made a short stop after the engine crossed the cattle-guard; that he observed the tracks of mules and horses, which had apparently torn up the ground between the rails and on the dump, so as to indicate that they had been running before they reached the cattle-guard from the south; that there was fresh blood on both sides of the cattle-guard, and, just after crossing same, he observed his mules and horses standing on the right-of-way; that a part of them became frightened at a freight train approaching from the north, and ran over the cattle-guard and off the right-of-way; that he had no way to get the others out except to drive them back over the cattle-guard, which he did, with the assistance of J. A. Millpr; that he found from one to four holes in the hoofs of his mules and horses made by spikes in the cattle-guard, which reduced their market value about $1,000 or more.

J. A. Miller testified that he heard the stock alarm, and thought his mules were upon the right-of-way; that he could see the train, but could not see the mules and horses from where he was standing until they reached a distance of about twenty feet north of the cattle-guard; that, when he first discovered them, they were running north; that, when he assisted in driving them out, he observed a mare and two other animals limping, and he observed fresh blood on both sides of the cattle-guard.

Several other witnesses testified to the spike holes found in the hoofs of the mules and horses and to the difference between the market value of the animals before and after the injury.

Learned counsel for appellant argued that all the testimony' shows that a proper lookout was kept, because the stock alarm was sounded and the train stopped; also that there is an entire lack of evidence to show that the train was negligently operated so as to frighten the horses and mules across the cattle-guard from the south to the north side thereof. In fact, it is argued that it was not shown that the horses and mules were over on the south side of the cattle-guard.

The fact that the stock alarm was sounded and the train was stopped,-either just before it reached the cattle-guard or after it got upon it, is not conclusive proof that a proper lookout was being kept at the time the animals were discovered, or that the lookout was properly maintained after they were discovered. It might be that they could have been discovered and the train stopped sooner had a proper lookout been kept and maintained. The cattle-guard was from one-quarter to one-half mile ahead of the train when the stock alarm was sounded, and there was no obstruction to prevent the engineer or fireman from seeing the animals if they were on the south side of the cattle-guard, so the jury may have drawn a reasonable inference that, by keeping and maintaining a proper lookout, the animals could have been discovered and the whistling’ and the train stopped in time to prevent the frightened animals from running over the cattle-guard. It is argued, however, that there is no evidence showing that the animals were on the south side of the cattle-guard when discovered, or when they might have been discovered if a proper lookout had been kept. There are some very substantial circumstances tending to show that they were on the south side of the track at the time the train approached the cattle-guard. These were the only animals seen by Haynie and Brown upon the right-of-way which caused the trainmen to sound the stock alarm. Horse and mule tracks made by running animals in the direction of and south, of the cattle-guard were discovered by these witnesses. Brown first saw the animals running from the south toward the north, about twenty feet north of the cattle-guard, which indicated that they had come across it. Fresh blood was found upon both sides of the cattle-guard before the animals passed over it going out. Brown also noticed that three of the animals were limping before they were driven out over the cattle-guard. Spite holes were found in the hoofs of the animals, indicating that they were made while they were running. We think the circumstances warranted the jury in concluding that the animals were on the south side of the cattle-guard when discovered, and were needlessly frightened and stampeded over ¿uid across the cattle-guard through the negligent operation of the train.

The evidence being sufficient to support the verdict and the hypothesis upon which each instruction was given, the judgment is affirmed.


author: HumphReys, J. McCulloch, C. J.,

text:
    Warren v. Martin.
    Opinion delivered April 20, 1925.
    1. Deeds — FRAUDULENT MISREPRESENTATIONS. — In a suit to cancel a quitclaim deed, evidence held to- sustain a finding that. the deed was procured by fraudulent misrepresentations.
    2. Deeds — ratification.-—-Where plaintiff was induced to execute 'a quitclaim deed through misrepresentations on which she had a right to and did rely, acceptance and retention by her for a week or ten days of money subsequently received therefor did not constitute a ratification, where plaintiff was n-ot fully apprised of the real situation during the time she retained the money.
    3. Mines and minerals — waiver of forfeiture of oil and gas lease. — -Since a surviving widow was entitled to receive payment of the rents under an oil and gas lease covering the homestead property, acceptance by her of payments thereof at a time and place other than that designated in the lease was a waiver of forfeiture for failure to pay rent at the- time and place designated.
    4. Homestead — right of widow to receive rents. — By virtue ' of her homestead rights, a widow i? entitled to receive the rentg and profits under an oil and gas leas© executed on the homestead property in the husband’s lifetime.
    5. Homestead — sale by widow of mineral rights. — A sale by a widow of her interest in the oil, gas and minerals in the homestead constituted an abandonment of her interest .therein by virtue of her homestead right, as much as if she had sold a part of the land constituting her homestead.
    6. Homestead — abandonment by widow — right of heir. — Where a widow abandoned her interest in the mineral rights in the homestead by a sal© and conveyance thereof, an heir of her husband became entitled to receive the rents and ..profits therefrom, and to have an accounting for amounts collected as royalties from the land since the date of such conveyance.
    Appeal from Ouachita Chancery Court, First Division; J. Y. Stevens, 'Chancellor;
    reversed.

      JoJm P. Streepey, for appellant.

      T. J. Gaughcm, J. T. Sifford, J. E. Gaughcm and E. E. Godwin, for appellee.
   HumphReys, J.

Two suits were instituted by appellant in the First Division of the Chancery Court of Ouachita County, one against C. M. Martin et al. to cancel a quitclaim deed executed by her to Mandy Johnson on July 26, 1922, for an undivided one-fourth interest in the S% SW% section 29, township 15 S., range 15 W., in said county, containing 80 acres, upon the ground that it was procured through fraud; and the other against the Standard Oil Company of Louisiana et al., to cancel the oil, gas, and mineral lease upon the same lands, and which S. L. Johnson, the husband of Mandy Johnson, executed to E. P. Edwards on May 19, 1919, for the term of six years, upon the ground that same automatically forfeited for failure to pay rents in accordance with the provisions in the lease.

Many pleadings were filed in the cases, but, when completed, the issues joined were whether the quitclaim deed had been obtained through fraud, whether the lease had been forfeited for nonpayment of rentals, and whether appellant was entitled to an accounting for her share of the oil which had been taken from the land. It was agreed that the cases might be tried together and that all the testimony introduced in either case and in the case of Jane Warren v. Sun Oil Company et al. might be used in all of the cases, when pertinent and relevant.

Upon a hearing of the canse the court found that the quitclaim deed and lease were valid binding instruments upon all parties, but that C. M. Martin was indebted to appellant in the sum of $225 for her proportion of the purchase money he paid Mandy Johnson for sixty-three sixty-fourths interest in the oil, gas and mineral in said land. Pursuant to the finding, the court dismissed the bills and substituted bills for the want of equity, and rendered judgment against- C. M. Martin in favor of appellant for $225, and declared a lien on the interest of C. M. Martin in the lands to secure the payment of same, from which decree appellant has duly prosecuted an appeal to this court.

The record reflects, without dispute, that S. L. Johnson, a negro, was the owner by purchase of the land in question and an adjoining forty-acre tract; that he occupied the eighty-acre tract with his wife as their homestead until his death, on October 22, 1919; that his wife has resided thereon since his death; that he left surviving him his wife, L. A. (Mandy) Johnson, his sister, Jane Warren, and his half brother, Jesse Johnson, as his only heirs; that on May 9, 1919, S. L. Johnson and wife, Mandy, executed an oil, gas, and mineral lease on said lands, including the 40-acre tract, to E. P. Edwards, trustee, in which it was provided that the lease should become ipso facto null and void if a well were not drilled upon the land within one year, unless the time should be extended by payment of ten cents per acre in advance as rental, the rental money to be mailed to S. L. Johnson at Louann, Arkansas, or to be deposited to his credit in the Camden National Bank of Camden, Arkansas, and that the lease should extend to his heirs as to all conditions; that the lease was assigned by E. P. Edwards, trustee, to the Standard Oil Company, in July, 1922, and by the Standard Oil Company to the Gulf Refining- Company on August 8, 1922; that'Jane Warren executed a quitclaim deed for herinterest in said land to Mandy Johnson on July 26,1922; that ¡Mandy J ohnson conveyed a sixty-three sixty-fourths interest in all the oil, gas and mineral in or under said land to C. M. Martin for $2,000, subject to the gas, oil and mineral lease therein to E. P. Edwards, trustee; that S. L. J ohnson executed a deed of trust upon said land to W. P. Watts & Brothers to secure a loan of $1,099 due October 1, 1918, which was assigned to E. P. Edwards on January 13,1922; that on August 5, 1922, C. M. Martin conveyed an undivided one-half interest in sixty-three sixty-fourths of all the oil, gas, and mineral on said land to R. E. Davidson for $4,800; that on July 31,1922, E. P. Edwards released the Watts Brothers deed of trust to R. E. Davidson as to the one-half interest bought by him in sixty-three sixty-fourths interest in all the oil, gas and mineral in said land from C. M. Martin, which release contained a recital that R. E. Davidson obtained the conveyance of said one-half interest in said oil, gas and mineral on said land from C. M. Martin on July '28, 1922; that on July 27, 1922, Jane Warren assigned a one-half interest in said land to J. F. Dries-back in consideration of his agreeing to assist her in clearing the title of said land by employing counsel to prosecute a suit to set aside the quitclaim deed she had executed to Mandy Johnson; that, after the institution of the suit, Jane Warren assigned for a valuable consideration all of her interest in said land to the said J. F. Driesback in case she should prevail in the litigation; that the rents were paid upon the Edwards lease in the following manner: the first rental payment, due May 19, 1920, was placed to the credit of S. L. Johnson in the Camden National Bank within the specified time; the second payment, due May 19, 1921, was paid directly to Mandy Johnson either in June or July, 1921; the third rental payment, due May 19, 1922, was deposited to the credit of Mandy Johnson in the Ouachita Valley National Bank at Camden on May 17 or 18, 1922, but was not delivered to Mandy Johnson until July, 1922; that on August 3, 1923, C. M. Martin sent $125 to Jane Warren, purporting to be in full payment of her interest in sixty-three sixty-fourths interest in all the oil, gas and mineral sold in the land after paying off the deed of trust for $1,099 and accrued interest thereon; that she returned the money by postal order to C. M. Martin in about a week or ten days after receiving same, upon the advice of J. S. Driesback; that, at the time lie sent the money, he also sent her a letter informing her of her interest in the land and oil, bht withheld from her that the Y. K. F. discovery well of the Smaekover oil field had come in and was producing a large amount of oil, and also withheld the fact that oil, gas, and mineral interest in lands near the well had greatly enhanced in value. The letter contained several paragraphs indicating that the oil, gas and mineral interests in the land were of little value and that the oil boom was insignificant. The two following paragraphs are indicative that the writer intended to make such an impression upon appellant:

“There is a little oil boom on here, and Mandy Johnson has sold a part of the royalty on this land for $1,600, which is sufficient to pay off the mortgage and have $500 left to divide as follows: one-half to herself and the other one-half to be divided equally between you and your brother, Jesse Johnson. Your part of the money would be $125.”

“If the oil boom amounts to nothing, then Mandy Johnson will deed back to you your interest in this land or buy it from you if you and she can agree upon a price.” The letter also indicated that it was necessary to have executed the quitclaim deed to prevent Mandy from losing her home, when, in fact, the real purpose of obtaining the deed was to clear up the title of oil interests in the land which Martin had bought or intended to buy from Mandy. The price of the interests sold, or intended to be sold, was also incorrectly stated in the letter.

The record reflects a conflict between appellant’s and appellee’s witnesses relative to representations made to procure the quitclaim deed from appellant and Mandy Johnson.

Appellant, Pinkney Warren and Estella Warren, testified that Allen Fortch, a negro man, and Sam Evans, a white man, came to appellant’s home on July 26, 1922, which was 40 miles from Camden and about 20 miles from Smackover, and obtained a quitclaim deed from appellant to Mandy Johnson for her interest in the 80-acre tract of land, upon the representation that Mandy was in distress; that there was a mortgage of $2,500 on her home, which was about to be foreclosed, and that she would lose it unless appellant conveyed her interest in the land to Mandy; and that she yielded to their entreaties and executed a quitclaim deed in order to help Mandy. These witnesses were corroborated by the testimony of Jesse Johnson, the 'brother of appellant, and L. J. Cook, who is a lawyer in Texarkana. Immediately after obtaining the quitclaim deed from appellant to Mandy Johnson, Fortch and Evans proceeded to Texarkana, where they found Jesse Johnson. Jesse testified that they made the same representation to him with reference to Mandy being in distress for fear she would lose her home, which, they said, was under mortgage for $2,500. He said that they represented that he would have to pay the mortgage himself unless he signed the quitclaim deed; that he asked them to go with him to the office of his lawyer, Mr. L. J. Cook, to talk the. matter over; that his lawver advised him to do nothing until they found out definitely about the mortgage, and suggested to the men that they get a verified copv of the mortgage and a certificate from the circuit clerk' that it had. not been satisfied. . ..

L. J. Cook testified that Jesse Johnson came to his office in comnanv with Allen Fortch and Sam Evans, and, when he askpd them wbat tliev wanted, Evans told him that he wanted a quitclaim deed from Jesse Johnson tó Mandy Johnson in order to prevent a foreclosure of the mortagge held hy Watts Brothers, who were represented by C. M. Martin; that he advised Jesse Johnson not to execute the quitclaim deed until they looked into it, and requested Evans to get a verified copy of the mortgage and sworn statement of the deed, and a certificate of the circuit clerk that the mortgage had not been satisfied; that, the next morning, Evans came to his office and told him that he had been hack that night to Camden to get the papers which he requested; that, during the conversation the day before, Evans had represented to him that the mortgage was for $2,500; that, after examining the papers and a letter which C. M. Martin had written him, he told Evans that he would not let Jess sign the quitclaim deed under any circumstances; that he asked Evans if it was not a fact that he was trying to cure title to oil lands in Ouachita County, and that he said “yes;” that Evans told him Jane Warren had signed a quitclaim deed under the same representation which he had made to Jess. The letter which he received from Martin is as follows:

,“C. M. MartiN
Camden, Ark.
Attorney at Law.
July 28,1922.,
“Mr. L. Jean Cook, Att’y at law,
‘ ‘ Texarkana, Ark.-Tex..
“Dear sir: I have been employed hy Mr. Sid Umstead of this city to foreclose a mortgage executed hy Sam L. Johnson and wife, Mandy Johnson, to M. P. Watts & Bro., for- $1,099, which mortgage Mr. Umstead has paid., Mr. Umstead does not desire to foreclose this mortgage, if the brother and sister of Sam Johnson will execute a quitclaim deed to this land, then he will give the widow of Sam Johnson more time to pay off this mortgage. If they do not sign at once, I will foreclose this mortgage, and all of the heirs of Sam Johnson will he forever barred.
“Kindly see Jesse Johnson for me and explain the facts to him, and, of course, he will sign this quitclaim deed to help out his brother’s widow.
“Your friend, •
(Signed) “C. M. MartiN.
“P. S. I would not give the amount of this mortgage for the land, but it is close to some land Mr. Umstead owns, and he may be able to use it, if the mortgage is not paid.”

Sam JDvans testified, in substance, that he and Allen Portch were employed by C. M. Martin to obtain a quitclaim deed to said land from Jane Warren to Mandy Johnson, and, in order to procure same, told her there was a mortgage of about $1,200 on it; that her brother had leased it, and that Mandy, her brother, Jesse, and she owned the land and oil interests, subject to the mortgage and lease; that there was some oil excitement over there, and the only thing to do was to execute a quitclaim deed to one person and sell the oil interests; that the mortgage would have to be paid off before they would get anything out of it; that she agreed to make the deed, so he left Allen Portch there and went after a notary public; that, on account of a storm, he did not get hack until next day, July '26, at which time Jane executed the quitclaim deed, after the notary read it to her; that he returned in about ten days and delivered her $125 and the letter which Mr. Martin sent to her; that he read the letter to her and her husband; that she kept the letter and accepted the $125, stating that she was glad she had done the right thing.

Allen Portch testified, in substance, that he informed Jane Warren of her brother’s death, of which she had not heard, and the interest she owned in the land; that he did not know the exact amount of the mortgage, but thought it was between $1,000 and $2,500; that, if they thought he was trying to persuade them into anything, to come down and pay off the mortgage; that they backed off from that; that she agreed to and next day did sign the quitclaim deed, saying that Mandy could sell the land, pay off the mortgage, and keep the 'balance to live on; that, when they took her the $125 and letter from Mr. Martin, she accepted the money, saying she was glad she did right.

The notary testified that he read the deed to Jane Warren, and that she understood what she was signing.

The taxi driver who took them to Jane Warren’s home testified that Jane accepted- the $125, after the letter from Mr. Martin had been read and explained to her.

C. M. Martin testified that he tried to buy the oil interests in the land from Mandy Johnson, who referred him to Sid Umstead, who was looking after her interest; that Mr. Umstead agreed to let him have a sixty-three sixty-fourths interest in the oil, gas, and mineral in the land for $2,000, which he agreed to nay, and that Mr. Um-stead requested him to clear the title to the land; that, in order to do so, he emploved Evans and Fortch to get a quitclaim deed from Jane Warren and Jesse Johnson, who owned a one-fourth interest each in the land, and directed them particularly to inform said parties of the oil situation in the Smackover field, of their interest in the land, and to tell them, if they would make a quite1 aim deed for their interest therein to Mandy, she would sell the oil, gas, and mineral interest in the land for as much as possible, pay off the mortgage and divide the balance, if any, between herself and them, according to their several interests; that, about two weeks after Jane Warren executed the quitclaim- deed, he wrote her a letter explaining that Edwards was about to foreclose the mortgage, but that Mandy had sold an interest in the oil, gas, and mineral in the land for $1,600, which was more than enough to pav the mortgage, and that her share of the excess was $125, which amount Mandv had turned over to him to send her; that Mandy would hold the land in trust for her, and, after selling the oil, gas and mineral in the land and dividing the proceeds according to their several interests, Mandy would either buy the land from her or deed her interest therein back to her; that the value of the oil, gas and mineral in the land was uncertain, and that he paid Mandy a high price for a sixty-three sixty-fourths interest therein.

Sid Umtead testified that he and Ejdwards owned the lease, and that they purchased the mortgage from Watts Brothers in January, 1922; that he got the best price possible for the oil, gas and mineral therein for Mandy.

E. P. Edwards testified that he was a brother-in-law of Sid Umstead; that they owned the lease and bought the mortgage together.

After a careful reading and analysis of the testimony, our conclusion of the whole transaction is as follows:

C. M. Martin, who had kept in close touch with the Y. K. E. discovery well in the Smackover oil field, near the land in question, came into the possession of evidences indicating that the well would become a producer, which it did. Belying upon these evidences, he set about to buy oil, gas, and mineral interests in lands near the well, and, in carrying out these policies, entered into a contract with Mandy Johnson, through her representative, Sid Umstead, to purchase a sixty-three sixty-fourths interest in the oil, gas and mineral in said land for $2,000. and, in order to clear up the title, employed Sam Evans and Allen Fortch to procure a quitclaim deed to said land from appellant and her brother, who had inherited a one-fourth interest each therein, subject to Edwards’ lease and the Watts Brothers’ mortgage, for a nominal sum. The only way the deed could be obtained for a nominal consideration was to make it appear that the equity in the land was of little value and would be swallowed up by the Watts Brothers’ mortgage unless apnebant, her brother and Mandy should dispose of the od. gas. and mineral interest in the land immediately. This plan was in the mind of Martin when he sent Ms agents, as representatives of Mandy, to appellant and her brother to get the deed, as was evidenced' by the postscript to the letter he w;rote to L. J. Cook, and in the clauses quoted above in his letter to appellant. The postscript is' as follows :

“I would not give the amount of this mortgage (referring to the Watts Bros.’ mortgage) for the land, but it is close to the land Mr. Umstead owns, and lie may be able to use it, if the mortgage is not paid. ’ ’

At the time the letter was written Martin was under contract to pay $'2,000 for a sixty-three sixty-fourths interest in the oil, gas, and mineral in the land, and knew that the discovery well near the land was a producer. The well came in on July 26, 1922, and the letter was written on July 28, 1922. At the time Martin wrote the letter to appellant he knew that the discovery well had become a producer, and, according to the recitation in the lease of the Watts Brothers’ mortgage by E. P. Edwards to R. B. Davidson, Martin had contracted to sell one-half of sixty-three sixty-fourths interest in the oil, gas, and mineral in said land that he had bought from Mandy to R. E. Davidson for $4,800.

At the time Evans and Portch procured the quitclaim deed from appellant, she and C. M. Martin were not on an equal footing. The same opportunity to ascertain and know the value of the land was not open to each. Martin was upon the ground, with knowledge of recent oil developments in the field, and appellant was residing at a distance, without information or knowledge that the oil well located near the land was about to, or had, come in, and that oil, gas, and mineral interests in every direction from the discovery well were in demand and being purchased. Appellant could neither read nor write and had not even heard of the death of her brother. The development in the oil field, also known to Martin, was withheld from appellant, and she was induced to execute a quitclaim deed either upon the representation that the land was of little value and that it was necessary to sign the deed immediately in order for her, her brother and Mandy to get anything more than the mortgage out of it, or to prevent Mandy, who was in distress, from losing her home. According to Forteh’s own admission, he led this woman to believe that, unless she signed the deed, she might have- to pay the mortgage herself, which information seemingly produced an effect, for Fortch said “she got back from that.” We are convinced by a preponderance of the evidence that appellant was induced to execute the deed through misrepresentation on which she had a right to and did rely.

Appellees contend, however, that appellant ratified the transaction by accepting and retaining $125 for a week or ten days. . If she had been fully apprised of the real situation, her act in accepting’ and keeping’ the money for that length of time would have amounted to a ratification on her part. The letter, however, accompanying the money was a continuation of the misrepresentations. The oil situation was characterized in the letter as a little boom. It did not inform her that the discovery well had become a real producer. Neither did it contain information that a sixty-three sixty-fourths interest in the oil, gas, and mineral in said land had been sold to Martin himself by Mandy for $'2,000, and that he liad immediately sold one-half of what he purchased for $4,800. On the contrary, it was stated in the letter that Mandy had sold a part of the oil, gas, and mineral interest in said land for $1,600. The purport of the letter was to the effect that Mandy had to sell said interest in the land to prevent the mortgage from being-foreclosed, when, in fact, no such urgent necessity existed. Under these circumstances the receipt and retention of the money did not constitute a ratification of the transaction by appellant.

The next question arising for solution is whether filie oil, gas, and mineral lease had been forfeited for failure to nay rent at the time and place designated in the lease. S. L. Johnson and his wife executed this lease to Edwards on their homestead. Johnson died on the —.— day of October, 1919, and his wife continued to reside on the home place. After the death of her husband, two payments of rent were made to and accepted by her, one of which was out of time and the other made at a placo different from that designated in the lease. An oil well was commenced on the property before the fourth rental was due, so it was unnecessary, under the terms of the. lease, to make further payments on rent. The drilling of the well operated to keep the lease alive. While the last two payments of rent were not made in accordance with the terms of the lease, and while the lease contained an automatic forfeiture clause, we know of no legal reason why the forfeiture could not be waived by Mandy if she was entitled to receive the payment of the rents after the death of her husband. We think she was entitled to receive the rents by virtue of her homestead right in the property. It is true that the well was not drilled until after the death of her husband, but the law is that “a mine lawfully leased to be opened is an open mine within the reason of the rule permitting a life tenant to work open mines.” Koen v. Bartlett, 31 L. R. A. 128; Poole v. Union Trust Company, 157 N. W. 432, and a long list of cases cited therein to this point.

The payments of rent were made 'and received before Mandy sold a sixty-three sixty-fourths interest in the oil, gas, and mineral in said land to C. M. Martin. Up to that time she was entitled to receive the rents or production of the soil above or below the surface of the land by virtue of her homestead right therein. Russell v. Berry, 70 Ark. 317. When Mandy Johnson, however, sold a sixty-three sixty-fourths interest in and to all of the oil, gas, and mineral in, on or under said land, to C. M. Martin, she abandoned her interest therein by virtue of her homestead right as much so as if she had sold a part of the land constituting her homestead, for it was a sale of the body or corpus of a sixty-three sixty-fourths interest in all the oil, gas, and mineral in the land. Gatlin v. Lafon, 95 Ark. 256; Felton v. Brown, 102 Ark. 658. Having thus abandoned her homestead right in a sixty-three sixty-fourths interest in all of the oil, gas, and mineral in, on or under said land, appellant, as an heir, became entitled to her interest therein, and to have Mandy Johnson and C. M. Martin account to her for any amounts collected by them, as royalties for oil taken from said lands, belonging to her, since the date of said conveyance, less her proportionate part of the mortgage paid by Martin for her.

On account of the error indicated the decree is reversed, with directions to enter a decree canceling the quitclaim deed, and for further proceedings according to law not inconsistent with this opinion.

McCulloch, C. J.,

(dissenting). I do not agree with the conclusion reached by the majority as to the facts in the case, but it would serve no useful purpose to set forth the proof in the record upon which my own conclusions is reached that the finding of the chancery court should not be disturbed. Suffice it to say that my opinion .is that the finding of the chancellor was not against the preponderance of the evidence, and that the decree should for that reason be affirmed.

I dissent from that portion of the opinion of the majority which holds that the execution of the mineral deed by Amanda Johnson to appellee Martin constituted an abandonment of the former’s homestead right. It is, I think, a misapplication of the rule of law which has often been announced by this court that a conveyance by a widow of the homestead constitutes an abandonment of the homestead right, to say that a mineral deed or a sale of royalties without denuding herself of the occupancy or surface rights operates as an abandonment. This is an extension of the rule which is not warranted by anything said in our former decisions on the subject, but, on the contrary, is, I think, in hostility to the very reason upon which the rule is based. The first opinion on this 'subject was written by Judge Battle in the case of Garibaldi v. Jones, 48 Ark 230. In declaring the law as to the riarht of the widow to alienate the homestead, he said: “The law is not concerned about lire precise locality of the family at any time, but it is concerned that, wherever they be carried by convenience, chance or misfortune, there shall be a place, a sanctuary, to which they may return to find the shelter, comfort and security of a home. * * * One of the objects of the Constitution is to secure to the widow and orphans the family roof-tree as a fixed home during the widowhood or life of the widow, and minority of the children. It would be clearly ag’ainst the policy and spirit of the Constitution, in thus providing a homo for her, to permit her to alienate it, and to allow others to enjoy the benefits of the homestead of a deceased husband and father, which were only intended for the widow and orphan. If she could do so, the exemption which passes, under the Constitution, to the widow and minor children upon the death of the husband and father, would not be a reservation of a homestead, but a reservation of land of a certain quantity or value, irrespective of its uses.”

It is thus seen that the reason upon which the rule is based, that an attempted alienation constitutes an abandonment, is that it deprives a widow of the very thing which is guaranteed to her by the Constitution. The widow has the right, however, to the complete and full enjoyment of the homestead Avith all of its uses, and by making use of the benefits in any manner short of a conveyance Avhich would deprive her of those uses, she does not abandon that right. The sale of mineral rights with a reservation of royalties is in effect the same as a lease. It does not deprive the AAddow of any surface rights except those specially granted in order to enjoy the mineral rights, and the right of occupancy is not substantially restricted or cut off. The enjoyment by her of mineral rights is restricted, the same as any life tenant, to wells or mines already opened, and if she goes beyond her rights and attempts to open new wells or mines, she can be restrained by the remainderman, but the attempt to go beyond her rights in that respect does not constitute an abandonment, so long as she does not denude herself of the right of occupancy.

There is still another reason why the execution of the mineral deed by Amanda Johnson should not be treated as an abandonment. The mineral deed was executed after the execution of the deed to her from appellant conveying the title in fee, and, if that deed is set aside, the mineral deed falls with it and should not be treated as an abandonment of the homestead right which the widow had independent of the deed executed to 'her by appellant. A court of equity, in setting aside the deed executed by appellant and restoring her to her rights, should not grant to her greater rights than she enjoyed before the execution of the deed. To do so is to convert the arm, of the court into a sword rather than a shield.

I am in entire accord with the court in holding that the acceptance of rentals by'Amanda Johnson after the stipulated date of -maturity prevented a forfeiture of the original lease executed by S. L. Johnson to Edwards. The property was the homestead and passed to the widow after the death of the husband. The widow was entitled to the rentals as long, as she lived or until she abandoned the homestead, and since the rentals went to her exclusively, she bad the right and power to waive the date of payment. She -could have exonerated the lessee frono. paying at all as long as she was in p-ossesson of the homestead, enjoying her rights as widow. It would be otherwise, of course, if the forfeiture was based upon failure to perform some condition made for the benefit of remain-dermen and the widow. Whe-re it related to the performance of a condition which inured exclusively to the benefit of the widow, it was in her power to waive the performance of those conditions so long as she was the beneficiary.

The Kentucky case relied on by counsel for appellant (Jenkins v. Williams, 191 Ky. 229 S. W. 94) is not directly in point, in that the property involved does not appear to have been the homestead, and the rentals did not become exclusively the property of the widow. The point of that case was Whether or not the widow was a joint obligee m as to bave the right to accept rentals at any time or waive the payment thereof. There was a dissenting opinion in the Kentucky case, hut we are not concerned with the correctness of the decision. In the present case it is undisputed that the leased property fell to the widow as her homestead after the death of her husband, and that the rentals belonged exclusively to her.

Mr. Justice Hart concurs in this dissent.


author: McCulloch, C. J.

text:
    Mutual Aid Union v. Alexander.
    Opinion delivered April 27, 1925.
    Insurance — assignment of ufe. policy — insurable interest. — A life insurance which is valid in its inception will not be invalidated 'by a subsequent assignment to one having no insurable interest.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      J. V. Walker and Duty & Duty, for appellant;

      Starbird & Starbird, for appellee.
   McCulloch, C. J.

Appellant is a fraternal life insurance association, organized under the laws of this State for the purpose of doing business on the assessment plan, and this is an action on one of its certificates of benefit or policies issued to Sinion Simmons, one of its members. Simmons became a member and certificate holder in the association on August 1, 1914, and the original benefit certificate was made payable to his wife, Willie Simmons, but, on March 21, 1917, the designation of the beneficiary was changed, and, on the application of the member and of the old beneficiary, appellee, M. C. Alexander, was properly designated in the manner prescribed by the laws of the organization as the new beneficiary, and the matter thus stood until the death of Simon Simmons, which occurred in the year 1923. Appel-lee M. C. Alexander and also Willi'e Simmons joined in this action, and the judgment below was in favor of Alexander. Willie Simmons has not appealed.

Appellee testified at the trial that he had paid all the assessments on the policy from the time it was issued, and that he did this because Willie Simmons was his aunt. This was not disputed. He was asked by appellant’s attorney whether or not there had been any agreement, when the policy was issued, that he was to eventually become the beneficiary, and he answered in the negative. He testified that the change of beneficiary was made pursuant to a family council,- and that the reason for making the change was that his aunt, Mrs. Simmons, was in bad' health, and it was thought she would not survive her husband, and it was the desire of all that, in the event of the death of the member, the benefit should go to the collateral heirs of Willie Simmons rather than the collateral heirs of Simon Simmons.

The case is defended on the alleged ground that appellee Alexander had no insurable interest, and that the new designation of beneficiary, which was in effect an assignment of the policy, constituted a wager contract, and was void, and counsel rely on the decision of this court in the case of McRae v. Warmack, 98 Ark. 52. That case does not, however, have any application to the facts of the present ease, for the court there merely held that an assignment of a policy to one having no insurable interest was void if made pursuant to an agreement at the time of the issuance of the policy. In later cases this court has decided that, if the policy was valid in its inception, it was not invalidated by a subsequent assignment to one having no insurable interest. Page v. Metropolitan Life Ins. Co., 98 Ark. 340; Prudential Insurance Co. v. Williams, 113 Ark. 373; Langford v. National Life & Acc. Ins. Co., 116 Ark. 527; United Assurance Assn. v. Frederick, 130 Ark. 12. The same ruling has been made by tbe Sunmnie Court, of the United States. Grigsby v. Russell, 222 U. S. 149.

Counsel for appellant contend that the rule of our recent cases should not be applied, because Alexander procured his own designation as the beneficiary, or, at least, participated in the arrangement. This contention is not sound, for there is no proof that the change was brought about by any fraudulent conduct or misrepresentation on- the part of Alexander. Besides that, the former beneficiary, Mrs. Simmons, malees no complaint about the change — in fact it was made at her own request, and appellant is in no attitude to raise that question.

There are numerous assignments of error with regard to the court’s charge, but the material facts of the case aré undisputed, and the verdict is correct, regardless of any instructions the court may have given or refused, -so it is unnecessary to discuss them.

Judgment affirmed.