author: Wood, J.

text:
    Jerome Hardwood Lumber Company v. Davis Brothers Lumber Co., Ltd.
    Opinion delivered November 26, 1923.
    1. Principal and agent — prima facie showing of authority.— In an action by seller for breach of a contract to accept goods, defended on the ground .that the buyer’s alleged agent had no authority to enter into the contract, letters written on buyer’s letterheads, signed by buyer, by such agent as its sales manager, and a telegram signed by buyer, referring to a letter so signed, held to make a prima fade showing- of authority.
    2. Principal and agent — burden of showing want of authority. • — In a seller’s action for refusal of buyer to accept goods sold, where the defense was that the buyer’s agent had no authority to make such contract, the seller had -the burden of proving such authority.
    3. Contracts — letters and telegrams. — Contracts may be made ■by telegrams and letters.
    • 4. Sales — order and- acceptance. — Where an order requiring seller to “acknowledge receipt of- this order promptly, stating when shipment will be made,” was remailed by shipper to buyer with .the word “accepted” written thereon, this constituted a contract, notwithstanding seller’s failure to .state time of shipment, in view of the buyer’s subsequent recognition of the contract as binding.
    5. Sales — indefiniteness of contract. — A contract for the sale of “2 carloads 4-4" No. 2 and 3 common plain oak” held not too vague and uncertain as to quantity and classification of grades to form a basis for damages; the terms used being explained by testimony as to trade usages.
    6. Sales — refusal to accept shipment — damages.—Seller’s damages for buyer’s refusal to accept lumber was the difference between the contract price and the market price on the date when the buyer notified the seller it would not accept the shipment.
    7. Sales — interest on damages. — Where the amount of damages to which the seller was entitled was easily ascertainable on the date on which the buyer notified the seller of its refusal to accept the shipment, the seller was entitled to interest on the amount of such damages from such date until the date of the judgment.
    8. Trial — directed verdict. — Where both parties prayed for a directed verdict, but the party against whom the verdict was directed asked for additional instructions, the undisputed evidence should be given its strongest probative force in favor of such party.
    Appeal from Drew Circuit Court; Turner Butler, Judge;
    affirmed.

      J. G. Williamson, Lamar Williamson and Adrian Williamson, for appellant.
    The contract was not accepted according to its terms, and1 never became binding. The acceptance of an offer must be in accordance with the terms of the offer. 23 R. C. L. 1284; 35 Cyc. 53; 112 Ark. 380; 97 Ark. 613; 90 Ark. 131; 107 Ark. 224; 25 Ark. 545. There was no evidence that the contract was signed by any person authorized to bind appellant. The authority of an agent cannot be proved by his own declarations. 114 Ark. 301; 92 Ark. 315. The purported contract of purchase is entirely too vague and uncertain as to quantity and proportional classification of the material ordered, to form a basis for the calculation of damages. See 9 C. J. p. 1293; 14 S. W. 1069,1079; 88 Ark. 492; 23 Ark. 63; 96 Ark. 188; 117 Mo. App. 19; 13 C. J. 266-268, § 59; 6 R. C. L. 643-644, § 59; 6 R. C. L. p. 647, § 61. It was error to direct a verdict. But in no event should interest have been awarded on unliquadated damages before judgment. 8 R. C. L., p. 533, § 86; 72 Cal. 498, 1 Am. St. Rep. 75; 17 C. J., p. 815, § 137; 21 Ark. 350; 52 Ark. 473; 11 A. L. R. 576; 3 A. L. R. 805, and note at p. 809. Acceptance of an offer or order must be made within a reasonable time, and the jury should have been allowed to say whether the offer, was so accepted. 96 Ark. 27; 105 Ark. 575; 113 Ark. 221. By failing to ship within a reasonable time, the appellee itself was in default. 88 Ark. 491.

      Henry & Harris, for appellee.
    Appellant is estopped to deny the validity of the contract, as it recognized same as binding, both by numerous letters and telegrams, and even went so far as to ask a cancellation of the contract! 33 Ark. 465; 147 Ark. 555. On the question of uncertainty as to quantity sold, raised by appellant, the case cited by appellant in 96 Ark. 184 is against him. The other cases cited' on the point are not applicable. A carload is 1 ‘ a load that fills a car. ” 9 C. J. 1293. A directed verdict was proper, as the question of the sufficiency of the evidence was one of law for the court, the facts being undisputed. 97 Ark. 442. Upon a breach of contract the rule is that the measure of damages is the difference between the price fixed by the contract, and the market value at time of delivery or offer to deliver. 92 Ark. 116; Ann. Cas. 1913-C., 765, and notes. Interest was properly allowed, as compensation for the wrongful detention of the money. 50 Ark. 169; 69 Conn. 228; 88 Ark. 557; 26 C. C. A. 23; 192 Mass. 391; 93 N. Y. S. 319; 68 S. W. 53; 116 S. W. 783.
   Wood, J.

This is an action by the appellee against the appellant tó recover damages, for an alleged breach of contract. The appellee alleged, in substance, that the appellant, on the 17th of May, 1920, sent to the appellee an order for certain lumber; that appellee accepted the order, and was at all times .ready, willing and able to perform the contract on its part, but that appellant breached the contract on the 30th of March, 1921, by canceling'the order, to appellee’s damage in the sum of $1,642.50, for which the appellee prayed judgment.

The appellant answered denying specifically the allegations of the complaint.

F. M. Sparks testified, as a witness for the appellee, to the effect that he was the sales manager of the appellee. He identified the order for the purchase of the lumber, which order was attached as an exhibit to appellee’s complaint, and introduced the same in evidence. That order is as follows:

“Lumber Purchase Order
“Jerome Hardwood Lumber Company.
“Put this number on your inv.
“Jerome, Arkansas, May 17,1920.
“Order No. F267.
“To Davis Bros. Lumber Co.,
“Ansley, Louisiana.
.“Ship from Jerome Hardwood Lumber Co.
“Ship to Jerome Hardwood Lumber Co.,
“Jerome, Arkansas.
“Route via Mo. P. at El Dorado, Ark.
“Terms cash less 2' per cent.
“All agreements contingent upon strikes, fires and other delays unavoidable and beyond our control.
“Please enter our order for the following material for shipment in accordance with above instructions:
“2 carloads 4-4" No. 2 and 3 common plain oak, as follows:
“4-4" No. 2 common............................................................$80.00
“4-4" No. 3 common............................................................$30.00
“The stock to be nicely manufactured, of good average widths and lengths, good dry stock, and otherwise in accordance with verbal order given you by our Mr. Smith, and the National rules. Show ourselves as shippers and consignees, inserting in each B-L:
“For manufacture and reshipment.
“F. O. B. cars Ansley, La.
“Lengths standard — G-ood average.
“Widths standard — Good average.
“Inspection — Mutual—According to the National Hardwood Lumber Association rules of inspection, in case of dispute the stock to be loaded by a National inspector, the expense of said to be divided equally.
“Acknowledge receipt of this order, promptly, stating when shipment will be made. Mail invoice in duplicate for each shipment, together with original and duplicate bill óf lading on date of shipment.
“Jerome Hardwood Lumber Company.
“By J. M. Wells.-
“Accepted: Davis Bros. Lumber Co., Ltd.
“By P. M. Sparks.”
The witness, over the objection of appellant, identified a letter addressed to the appellee, dated May 18, 1920, in which the above order in duplicate was inclosed. Witness wrote the word “Accepted” on the order and returned it to the appellant. This letter of May 18,1920, was written on the letterhead of the .appellant, and showed the names of the president, the vice-president, the secretary and treasurer, and the name -of J. P. Moeller as sales manager of the appellant, and set forth the business in which appellant was engaged. The letter set out the terms and conditions upon which the order was made, and concluded as follows: “Our Mr. Smith advises that he called on you last week and placed order with you for two carloads of 4-4" No. 2 and 3 common plain oak on basis of $80 and $30 f. o. b. cars Ansley, and we are herewith inclosing our formal order P-267 covering these two cars of oak. Please accept duplicate ■order, returning for our files, and please also advise when you will be ready to ship this stock, and we will arrange to have one of -our inspectors accept same.
“Tours very truly,
“Jerome Hardwood Lumber Co.
“J.M. W.-B. (Signed) J. M. Wells.”
Seven other letters were introduced, written on what purported to be the letterheads of the appellant as above set forth, addressed to the appellee. All of these letters were signed with the appellant’s name by J. M. Wells, “manager of lumber sales,” except one, which had the appellant’s name signed thereto by M. A. Bates. Appellee also introduced two telegrams dated at Jerome, Arkansas, and signed by the J eróme Hardwood Lumber Company. One of these telegrams, dated July 28, 1920, was as follows: “Sorry unable to send inspector see letter. ” The other was dated March 22,1921, and stated as follows: “Answer yours 15th delayed again manager absent writing fully today.”

It would unduly extend this opinion to set out this correspondence m haee verba, and we will therefore only state the substance as we deem it material. It pertains to the alleged contract between the appellant and the appellee for the sale and purchase of the lumber.

The witness further identified and introduced the letters of the appellee to the appellant. The first one of these letters was dated June 23, 1920, in which the appellee, in substance, stated that it had the lumber ready for shipment which had been ordered by the appellant on May 17, 1920, but was then unable to ship the same on account of scarcity of cars, and suggesting that the appellant allow the appellee to inspect the lumber for the appellant and ship the same on the guaranteed inspection, and concluded this letter by requesting the appellant to advise the appellee immediately whether appellant would be willing to allow appellee to ship more than three cars on appellant’s order.

The purported letter of the appellant, in answer to the above letter, dated June 26, 1920, stated that appellant preferred to have all the lumber purchased under its form of order inspected by its own inspector, but was unable to state definitely when it could send its inspector, and stating that, if satisfactory to the appellee, appellant preferred to cancel the order, requesting appellee to advise appellant if it would be satisfactory to cancel the order. Appellee answered this letter on June 26th, notifying the appellant that it was not satisfactory to cancel the order, and saying: “As we reserved the stock for you and have been holding it for some time.”

In answer to this letter the appellant wrote on July 2, 1920, in substance reiterating that it preferred to have the lumber inspected by its own inspector, and that it would arrange as soon as it could to have one of its inspectors go to appellee’s plant and load the stock out. As late as July 28,1920, the appellant wrote the appellee, acknowledging receipt of a telegram from the appellee, and stating that it was sorry that it was unable “to send an inspector to taire up the two cars of oak,” and that it was not in a position to take the stock at that time, but just as soon as it could arrange to do so it would advise the appellee.

The appellant, after this letter, did not advise the appellee to ship the lumber. Appellee, at all times, had the lumber on the yards ready for shipment, but did not, from the time of receiving the last letter until February 16, 1921, have any correspondence or conversation with the appellant in regard to the lumber. On the latter date the appellee wrote appellant, stating, in substance, that it had been holding the stock for appellant since May, and asking appellant to send its man down to load the stock out during the month of February, and concluded by saying: “We shall expect to hear from you definitely within the next ten days.” The appellee again wrote the appellant on March 15, 1921, referring to its letter of February 16, and stating that it had not received any answer thereto, and therefore assumed that appellant did not intend to take the lumber, and requested appellant to send its cheek to appellee for the difference between the then value of the lumber and the price named in the purchase order, which it estimated to be the sum of $1,642.50, and stating to appellant that it would cancel its order and relieve appellant from any further connection with the lumber upon receipt of appellant’s check for the above amount. The appellant answered the above letter, stating that it was under the impression that the order had been canceled, as it. had been placed with the appellee since May, nearly a year previous, and suggesting that appellant had shut down and had no place to use the lumber, and that the best way to settle the matter was to have a meeting of their respective representatives to discuss the same, and suggesting the time and place of such meeting for March 30 at Ruston, Louisiana.

The appellee answered this letter on March 24, saying in substance that its representative would meet the representative of the appellant to talk the matter over at the time and place mentioned in appellant’s letter. The appellant answered this letter on March 25, saying in substance that it would have its representative on hand at the time and place designated. Appellant objected to the above letters of the appellee, on the ground that they were self-serving.

Witness further testified that Wells, representing the appellant, met the witness at Ruston at the time and place designated, and Wells informed witness that the appellant could not use the lumber covered by the order. Appellant objected to this testimony.

Of the letters referred to in the correspondence, one was written by M. A. Bates, dated May 6,. 1921. This letter was signed with appellant’s name by M. A. Bates, and it acknowledged the receipt of a letter from appellant of the 5th instant, and stated that the matter would have to be held in abeyance “for the reason that our Mr. J. M. Wells is now absent'from the office.” The letter stated that, upon Wells’ return, the matter would receive prompt attention.

The court, over the objection of appellant, permitted the witness to read a purported letter from the appellant dated May 10, 1921, which concluded as follows: “So if, after further consideration, you desire to accept our offer, please advise and we will forward cheek, otherwise we will of course be compelled to stand suit. Yours very truly, Jerome Hardwood Lumber Company. (Signed) J. M. Wells, mgr. lumber sales.”

The appellee announced that it offered that part of the letter to show that appellant had canceled its order in the conference with Wells, and for no other purpose. The court thereupon announced that the letter would be admitted for that purpose and no other, and instructed the jury that the above portion of the letter was admitted for the purpose of enabling them to determine whether in fact the cancellation of the contract was made on or about the time of the conference between Wells and Sparks at Buston, Louisiana.

The witness testified that the appellee had the lumber on hand to fill the order from the time same was accepted until March 30, 1921, when it was. sold with other lumber to Bruce & Co. The witness testified as to the market value of the lumber, which we will refer to hereafter.

Witness further testified that a carload of lumber of the grade and character specified in the order was anywhere from ten to twenty-five thousand feet, depending upon the size of the ear. Fifteen thousand feet was considered a carload. It would sometimes run more and sometimes less, but the average shipment was 15,000 feet. Dry oak runs about 4.240 pound's per thousand feet, and 15,000 feet would load a 60,000-pound capacity car; that is the maximum. The minimum weight of a 34-foot car is 30,000 pounds. A carload of lumber is a car loaded to its capacity — a load that fills the car. A 60,000-pound capacity car should be loaded to 60,000 pounds. A 30,000-pound capacity car should be loaded with 8,000 feet. That is a minimum carload on a 34-foot car. A carload would be anything from eight thousand to twenty-five thousand or twenty-eight thousand feet. Witness had loaded 28,000 feet of oak in a 60,000-pound capacity car. Large box-ears are 100,000 pounds capacity.

Over the objection of the appellant, witness stated that the first time he met Wells after he was employed by the appellant was at Buston, La., March, 1921. Witness stated that the lumber could not have been shipped for the lack of cars and labor until after its letter of June 23,1920. The lumber was never loaded on the cars. The buvers were supposed to send an inspector to receive the stock and inspect the same before it was loaded, and appellant’s inspector never came.

Other witnesses for the appellee, lumber inspectors, testified that, among hardwood lumber men, an average carload was considered something about 15,000 feet. There was testimony to the effect that the oak lumber grades run first and second, No. 1 common and No. 2 common and No. 3 common. Nos. 1 and 2 are stacked in one pile and considered all one grade. It develops something like five per cent. No. 3. No. 3 common is stacked in separate piles. One witness stated that not exceeding ten per cent. No. 3 common plain oak would develop in a pile of Nos. 1 and 2 — probably thirty per cent, would be No. 2. After an order is placed like the order in suit for Nos. 2 and 3 common plain oak, it means that Nos. 2 and 3 common should be taken out of such piles as would be convenient to get it out of. "Where the lumber is stacked from the mill with Nos. 1 and 2 in one pile and No. 3 in another pile, you would get the order out of the Nos. 1 and 2 piles, for the reason that there would be some No. 3 in it.

One of the witnesses testified that he was in the employ of the appellant in June, 1919. At that time J. M. Wells was the sales manager of appellant. This witness stated that he worked at Jerome in 1918 and 1919. He couldn’t recall the name the company was operating under at that time. Witness believed' that the company was operating under the name of Bliss-Cook Oak Company. It was agreed that the appellant was incorporated the latter part of December, 1919', and started business on January 1, 1920; that it boug’ht all the assets of the Bliss-Cook Oak Company.

The above states substantially the material testimony adduced at the hearing. The appellant prayed the court to instruct the jury to return a verdict in its favor, and also prayed the court to .give other instructions, all of which the court refused. The appellant duly excepted to the rulings of the court. The appellee prayed the court to instruct the jury to return a verdict in its favor for the sum of $1,642.50 with interest at six per cent, thereon from March 30, 1921. The court granted this prayer, and appellant duly excepted to the ruling. The jury returned a verdict as directed, and judgment was rendered in favor of the appellee, from which is this appeal.

1. The first and principal question in the case is whether or not the undisputed' testimony shows that J. M. Wells was the agent of the appellant, with authority to enter into the alleged contract with the appellee for the sale and purchase of the lumber. The onlyproof of such agency and authority is the letters and telegrams in the record, signed with the appellant’s name by J. M. Wells. It was admitted by the parties that the appellant succeeded to all of the assets of the Bliss-Cook Oak Company at Jerome, Arkansas. A witness testified that he worked for the appellant at Jerome in 1918 or 1919, and that, while he was at work there, appellant was operating under the name of Bliss-Cook Oak Company, and witness knew J. M. Wells, who was employed' by the appellant as sales manager. The testimony of the witness further showed that he left Jerome about July 1, 1919.

The undisputed testimony shows that the appellant was not incorporated until the latter part of December, 1918, and did not begin business at Jerome until January 1, 1920. So it appears that the above witness was confused in the dates, and that he really never worked for the appellant at the time stated. His testimony, standing alone, would not be sufficient to establish the fact that Wells was the sales manager of appellant on May 18, 1920, when the appellee received the purported letter of appellant, signed by appellant through J. M. Wells, and inclosing the lumber purchase order. But the undisputed fact does appear in the record that the appellant, having succeeded to the Bliss-Cook Oak Company, was in the hardwood lumber business at Jerome, Arkansas, at the time the appellee received the purchase order. This letter containing the order, and all the subsequent letters purporting to be signed with the name of the appellant by J. M. Wells as sales manager, and one letter signed with appellant’s name by M. A. Bates, were upon stationery with printed letterheads showing the' business of .appellant. The letters were written and mailed at Jerome, Arkansas. The order itself was upon a printed form designated as “Lumber Purchase Order, Jerome Hardwood Lumber Company, Jerome, Arkansas,” and appearing upon its face-throughout to be prepared especially for the use of the appellant. In answer to a pur-, ported telegram from appellee to appellant asking the appellant to send an inspector to take up the two cars of lumber, a letter and telegram purporting to be signed by the appellant, through J. M. Wells, were sent July 28, 1920. The letter was on the usual letterhead, and referred specifically to the telegram.

There was also a telegram dated March- 22, 1921, purporting to be signed by appellant alone, which referred expressly to a letter written March 15 by appellee to appellant, referring to the alleged contract and also referring to a letter of the same date written by Wells for appellant, which letter referred to the alleged contract evidenced by the purported order and acceptance thereof. The letters and the purchase order purporting to have appellant’s name signed thereto, by J. M. Wells as sales manager, and the letter purporting to be signed by appellant by M. A. Bates, all on stationery of the appellant appearing to be prepared with great minutiae, ' especially for appellant’s use in its business at Jerome, Arkansas, and the telegram dated March 22, 1921, it occurs to us, make at least a prima facie showing that Wells was the sales manager of the a.ppellant, and that he had the authority to order the lumber of the appellee as evidenced by the sales order signed by him.

Under the issue raised by the pleadings, the burden of proof was on the appellee to establish the agency and authoritv of Wells. The above facts were sufficient to establish Wells’ agency and authority to enter into the alleged contract, and, in the absence of any testimony to the contrary, justified the trial court in so finding and declaring as a matter of law. Morris v. Breedlove, 89 Ark. 296; Crane v. Morris, 6 Peters 598, and other cases in 6 Words and Phrases, 5549-50.

2. The next question is, do the purported sales order and the correspondence pertaining thereto constitute a complete and enforceable contract? “It is well settled in this State that contracts may be made by telegrams and letters, and, when so evidenced, it is the duty of the trial court to interpret the contract and declare its terms.” Procter & Gamble Distributing Co. v. D. C. Goff Co., 159 Ark. 292; Hart v. Hammett Gro. Co., 132 Ark. 199, and cases there cited.

Appellant contends that the order was not accepted according to its terms, and that it is too vague and uncertain to constitute an enforceable contract. The order contains this provision: “Acknowledge receipt of this order promptly, stating when shipment will be made.” The appellant contends that appellee did not accept the order in accordance with these terms. The undisputed testimony shows that the appellee wrote the word “Accepted,” on the order, and remailed the same at once to the appellant. Appellee, however, did not notify the appellant that it had the lumber ready for shipment until June 23. Treating the above provision of the order as an essential part of the contract and assuming that a compliance therewith on the part of the appellee would be necessary to complete the contract, nevertheless, it is clear that such provision was made for the benefit of the appellant, and appellant therefore could waive, a compliance with such provision on the part of the appellee. The correspondence clearly shows that, long after June 23, when the appellee notified appellant that it had the lumber ready for' shipment, the appellant did not then repudiate the contract, because of delayed notification as to when the shipment would be made, but recognized repeatedly the binding force of the contract, as evidenced by the' order and the acceptance thereof.

The contract, evidenced by the order and acceptance thereof, was not too vague and uncertain as to quantity and proportional classification to form, a basis for the calculation of damages. In Jerome Hardwood Lbr. Co. v. Beaumont Lbr. Co., 157 Ark. 220-225, we had under review an order on the same printed form as in the case at bar, the only difference being in the number of carloads ° specified and the kind of lumber. It was contended there, as here, that the contract was too indefinite as to quantity and classification of different grades to form a basis for damages. Answering this contention, we there said: “Under the terms of the contract appellee had a right to deliver four carloads of at least minimum capacity, and the specification, we think, was not too indefinite to constitute an enforceable contract. It is also contended that the' contract was too indefinite because it did not specify the quantity of lumber of the different grades. The effect of the contract is to bind the purchaser to accept carloads-of lumber of any of the kinds specified without regard to the qucmrtity of the different grades.. In other words, the contract constituted am undertaking to accept lumber of any of the grades specified.”

The undisputed testimony was to the effect that, among hardwood lumbermen, 15,000 feet of oak lumber is generally considered a carload. It is also undisputed that oak lumber grades run first and second and No. 1 common, No. 2 common, and No. 3 common; that an order calling for No. 2 and No. 3 common plain oak means that No. 2 common and No. 3 common shall be taken out of such piles as would be convenient to get it out of; that lumber at appellee’s mill was stacked No. 1 and No. 2 common in one pile and considered all one grade, and No. 3 common in one pile and considered all one grade, and No. 3 common in separate piles; that in a No. 1 and No. 2 pile there develops something-like 5 per cent., not exceeding 10 per cent. No. 3, and in a pile of No. 1 and No. 2 common there would be 30 per cent. No. 2. A minimum car was 34 feet, and it would take 15,000,feet of lumber to make a full carload of a minimum car. The average carload was 15,000 feet;

In Connelly v. Parkes, 160 Ark. 496, where a technical term peculiar to a building trade was used in the. contract, we said: “The parties must be held to have used the language of this paragraph in the light of the custom that obtained among engineers, contractors and builders, showing the meaning of such language when applied to building contracts. ’ ’ See also authorities there cited. So here'the word “carload,” and other words describing the kind and quantity of lumber in this contract, are trade terms and must be construed with reference to the understanding of these terms as they are used in the trade to which they belong. In Indianapolis Cabinet Co. v. Herman, 34 N. E. 579, it is held that “a contract to furnish a certain number of carloads of white wood is not void for uncertainty because a carload varies from 35 to 65 thousand feet.” We conclude therefore that, under the undisputed evidence, the “lumber purchase order” was not void for uncertainty.

3. Since the contract was a complete and enforceable one, and since the undisputed testimony shows that, among hardwood .lumbermen, the average carload of hardwood lumber of the kind contracted for is 15,000 feet, and that a minimum 34-foot car, when loaded to its capacity, holds 15,000 feet, the appellee, under the contract, was required to sell and the appellant to purchase two carloads, or 30,000 feet, of lumber of any of the grades specified in the order. Jerome Hardwood Lbr. Co. v. Beaumont Lbr. Co., supra. The order specified No. 2 common and No. 3 common plain oak. Under the authority of the above ease the appellee could have charged the appellant for 30,000 feet of No. 2 common plain oak, or, under the undisputed evidence, at its option it could have loaded the cars with ninety per cent. No. 2 common and. ten per cent. No. 3 common plain oak, and required appellant to take the cars so loaded; but, instead, tbe appellee based its claim for two cars in the proportion of seventy-five per cent. No. 2 common and. twenty-five per cent. No. 3 common, which was more favorable to the appellant than it was entitled to under the contract.

4. It follows from what we have said that the court did not err in holding that J. M. Wells was the ‘‘manager of lumber sales” of the appellant, with authority to purchase lumber from the appellee. Such being the case, the letters and telegrams between the parties relating to the contract between them were competent. Likewise the testimony of appellee’s,agent to the effect that he met appellant’s representative, J. M. Wells, at Ruston, La., on March 30, 1921, who informed appellee’s agent that appellant would not take the lumber as per order, was competent evidence. This testimony was undisputed, and gives the date when appellant definitely breached the contract. The undisputed testimony shows that on that day the market value of No. 2 common plain oak was $15 per thousand feet. There was no market value at all for No. 3 common, but the appellee allowed appellant $6 per thousand feet for No. 3. The difference, therefore, between the contract price and the market value was $65 per thousand feet on Nó. 2 common and $24 per thousand feet on No. 3 common. The appellee’s claim for damages is predicated upon that difference, which, in the aggregate, amounts to $1,642.50. This, under the law, was the correct measure of appellee’s damage. Kirchman v. Tuffli Brothers P. I. & C. Co., 92 Ark. 112, and cases there cited; Lanier v. L. R. Cooperage Co., 88 Ark. 557; L. R. Lbr. & Mfg. Co. v. Boynton, 147 Ark. 19.

5. The court instructed the jury to return a verdict in favor of the appellee in the sum of $1,642.50, with interest at sis per cent, from March 30, 1922. The interest on the date the verdict was rendered amounted to $143.33, and judgment was rendered for the principal sum and the interest. The appellant contends that in no event could interest have been awarded on the amount claimed by the appellee, because the same was for unliquidated damages, and it cites to sustain its contention, among other authorities, the cases of Tatum v. Mohr, 21 Ark. 350, and Clark v. Hershy, 52 Ark. 473.

The facts of the above cases readily distinguish them from the case in hand. Here, upon the breach of the contract by the appellant, the amount of damages growing out of such breach was distinctly fixed by the law and easily ascertainable under criteria mentioned in the contract. The value of the kind and quantity of the lumber specified could be readily calculated and the difference between the actual cash value of the lumber on March 30, 1921, the date when the appellant refused to fulfill his contract, and the amount which the appellant agreed to pay therefor, as specified in the contract, with six per cent, interest, as damages thereon from the date of the breach till the rendition of the judgment, was the measure of appellee’s damages.

The appellee made demand upon the appellant for the sum of $1,642.50 as the amount of its damages for appellant’s failure to comply with its contract a few days before the appellant announced that it could not take the lumber. Thus the appellee gave the appellant an opportunity to pay a fixed sum which was really less than the amount due at that time. The loss to the appellee of the use of this sum of money from that date should be compensated by the payment of six per cent, interest as damages. Lanier v. L. R. Cooperage Co., supra; L. R. Lbr. & Mfg. Co. v. Boynton, supra; see also St. L. I. M. & S. Ry. Co. v. Biggs, 50 Ark. 169; Healy v. Fallon, 69 Conn. 228, 37 Atl. 495.

The parties prayed for a directed verdict, but the appellant asked other instructions. The rule in such eases is to give the undisputed evidence its strongest probative force in favor of the party against whom the verdict is directed, and determiné therefrom whether different minds could reasonably draw different conelusions. King v. Bank of Pangburn, 150 Ark. 138; Webber v. Rodgers, 128 Ark. 25; Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378; Brigham v. Dardanelle & Russellville Ry. Co., 104 Ark. 267.

Applying the above rule, we are convinced that there were no errors in the rulings of the trial court. Its conclusion is correct, and the judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Flake v. State.
    Opinion delivered November 26, 1923.
    1. Criminal law — credibility of witnesses — instruction.—An instruction authorizing the jury to disregard all the other testimony of a witness who has sworn falsely to any material fact, without regard to whether the jurors believe such other testimony to be true or false, held reversible error where specific objection is made.
    2. Homicide — instruction on apparent danger. — Where, in a prosecution for murder, the defendant’s testimony, if believed by the jury, warranted a finding that deceased had struck at defendant with an axe at the time defendant killed the deceased, an instruction on apparent, as distinguished from real, danger was properly refused.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    reversed.

      R. W. Robins, R. G. Bruce, for appellant.

      J. 8. Utley, Attorney General, JohnL. Garter, Assistant, for appellee
   Wood, J.

This is the third appeal in this case. Flake v. State, 156 Ark. 34; Flake v. State, 159 Ark. 37. The facts developed by the testimony at each of the trials are substantially the same. For :a statement of these facts see Flake v. State, 156 Ark. 34. The law of the case is thoroughly settled and announced in the opinions on former appeals.

At the last trial the court gave the following instruction on the subject of the credibility of witnesses: “Now the law constitutes you the sole and exclusive judges of the weight and credibility of these witnesses; that is the province of the jury and not the court, to weigh this testimony. You determine the weight and credit that you will attach to the testimony of any witness who has testified in this case, by considering his demeanor upon the witness stand before you, the interest that he may manifest, if any be shown, in the result of your verdict, the reasonableness or absence of the reasonableness of the statements that he makes to you while under oath before you as a witness, the friendship for or bias or prejudice against the accused that may be manifested by such witness, and by these rules of law it is for you to determine just what weight and what credit you will attach to the testimony of each and every witness who has testified in this case. Weighed by these rules of law, if you find that any witness has wilfully sworn falsely to any material facts necessary to a determination of the issues raised by the return of the indictment and the different pleas interposed by the defendant, then you may disregard the testimony of such witness entirely, or you may believe that part which appears to you as being reasonable and true, which is corroborated or 'may have been corroborated by the testimony of other witnesses in whom you believe, and reject that part which you find unworthy of your belief. In other words, you can believe in whole or in part, just as the testimony of each witness has impressed you, weighed by these rules of law that I have declared to you in this case.”

The appellant made a general objection to this -instruction at the time it was offered, and also objected specifically to “that part of the instruction that told the jury that, if they found that any witness had wilfully ’ sworn falsely to any material fact, they might disregard the testimony of such witness in whole or in part.”

In Taylor v. State, 82 Ark. 540-545, an instruction was given which contained language substantially the same as that quoted above. Commenting upon this language, Judge Riddick, speaking for the court, said: “This, in effect, tells the jury that, if a witness has wilfully sworn falsely to any material fact, the jury may disregard his entire testimony, even though they should believe part of it to be true. But the jury has no right to reject any material testimony they may believe to be true. If a witness testified to a wilful falsehood in reference to a material fact, the jury should take that into consideration in weighing other portions of his testimony ; and if they conclude that none of his testimony is worthy of belief, they should reject it; but they have no right to reject any truthful statement simply because the witness has told a falsehood about something else. It may happen that a witness, because he wishes to shield himself, or for some other reason, may fail to tell the whole truth, may be guilty of a wilful misrepresentation as to his own interest in or connection with the crime, and yet, as to other facts throwing light on the crime, he may give evidence of the greatest importance. The jury, after being satisfied that he has sworn falsely as to any material matter, should scrutinize his other statements with great caution before accepting them as true; but, when once they become convinced that he has told the truth, they should not reject it.” While thus condemning the instruction because of similar language and the same purport of that above quoted, the court did not reverse the judgment because of the error in giving the instruction containing the above language. The court said: “But, while this instruction was not strictly correct, there was no objection to it, and the language used was probably the result of inadvertence or oversight, which did no harm.”

In the case of Griffin v. State, 141 Ark. 43-45, in construing an instruction couched in somewhat similar language to that under review, we said: “Taking the instruction as a whole, its purpose, as we view it, was to tell the jury that, if they believe that any witness had wilfully testified falsely to any material fact in the case, they were at liberty to disregard the whole of such testimony if they believed the same to be false, or any part of the same which they believed to be false.” In that ease there was no specific objection to the instruction offered. Concerning this, we said: “If counsel conceived, at the trial of the cause, that the instruction is open to the suggestion which he here urges against it, it was his duty to have called the attention of the trial judge to such instruction by a specific objection. If they had done this, the court doubtless would have so framed the instruction as to have contained the exact language the omission of which, they now insist, renders the instruction erroneous. The instruction is not one so inherently defective as to fall under the condemnation of being an erroneous and misleading-declaration of law. In the absence of specific objection, the giving- of the instruction as written was not a reversible error.”

In Johnson v. State, 127 Ark. 516-532, the appellant asked the court to give an instruction similar in purport to that under review, which the trial court refused.' This court held that the instruction, taken as a whole, was not the law, and that the trial court did not err in refusing to grant it.

In Johnson v. State, 120 Ark. 193-203, an instruction was given containing similar language to that in the first part of the instruction under review, ' and we refused to reverse the judgment because of such ruling. There was no specific objection calling the court’s attention to the particular defects complained of.

In Bruder v. State, 110 Ark. 402-410, an instruction was given containing- three paragraphs on the subject of impeachment and credibility of witnesses, and concluded with the following- language: “If the jury believe any witness has sworn falsely to any material fact, they may disregard the whole or any part of his testimony.” While condemning this language, we held that it was not reversible error, because no specific objection was made to such paragraph. There was a general objection to the instruction as a whole.

In Burgess v. State, 108 Ark. 508, an instruction was given on the subject of impeachment and credibility of witnesses, and we held that the instruction was not .reversible error because its language was not objectionable, and there was only a general objection made to the instruction.

In Bloom v. State, 68 Ark. 336, the following instruction was given: “If you believe that any witness has sworn falsely as to any material fact, you are at liberty to disregard his entire testimony, or you may receive that portion you may believe to be true, and reject that you may believe to be false.” The court held that the giving of the above instruction was error, and reversed the cause. The court said: “The instruction is erroneous and prejudicial, according to the decision in the case of Frazier v. State, 56 Ark. 244, which holds that, before you can disregard the testimony of a witness for false swearing, the false swearing must be wilfully done.”

In the last two cases we quoted the following language from the opinion of Judge Hemingway in the case of Frazier v. State, supra: “False swearing as to a particular fact warrants a jury in discrediting the entire testimony of a witness only when it is wilful, and the instruction is- incomplete in omitting this. Moreover, the instruction might be construed as warranting a jury in disregarding testimony which it believed to be true, if it emanated from a witness who had sworn falsely to some other fact. Thus construed, it does not reflect the law, for, although a witness is found to have wilfully testified falsely to a material fact, the jury will not be warranted in disregarding other parts of his testimony which appear to be true.” But the court did not reverse the judgment in the Frazier case on account of the error in giving the instruction.

Therefore, the effect of all these holdings of onr court is that an instruction couched in language like that here under review, or of the same purport, does not strictly and accurately state the law, but the refusing of such an instruction is not reversible error, because it is not error for the trial court to refuse an instruction that does not correctly declare the law. And the giving of such an instruction is not error in the absence of an objection calling attention to the specific language to which the objection is made and which is claimed to be erroneous and misleading. The appellant specifically called the attention of the trial court to such language of the instruction under review. It was therefore the duty of the trial court, under the rule established by the above decisions, to have the instruction corrected so as to meet these objections and to frame the instruction in conformity with the law as declared in the above decisions. Where a specific objection is offered, as was the case here, the jury should be plainly told that, if they find that any witness has wilfully sworn falsely to any material fact, they may disregard the whole of his testimony if they believe same to be false, or any part of the testimony of such witness which they believe to be false; but if they believe that any portion of the testimony of a witness is true, they should not ignore or reject such portion, even though they believe that the witness has wilfully sworn falsely to some other material fact in the case. It follows that the court' erred in giving the instruction under consideration.

2. The appellant contends that the court erred in giving instructions which ignored the right of appellant, in self-defense, to act upon the circumstances as they appeared to him, and in refusing the prayer of appellant in which he asked the court to tell the jury that he had such right, if, without fault or carelessness on his part, he honestly believed that he was in danger of death or great bodily harm at the hands of the deceased. The court did not err in its ruling on this phase of the case, because the undisputed evidence, as we view the record, did not raise the issue as to whether the appellant acted upon appearances. The testimony of the appellant, which was all the testimony bearing on that issue, was to the effect that, immediately prior to his striking the deceased, the deceased struck at Trim, with an axe, and he knew that the deceased was going to kill him unless he did something. He said, “I knew he was going to kill me; he dropped his saw, turned on me with the axe, and I think it was time to do something.” This testimony, if believed by the jury, warranted a verdict of not guilty on the ground that appellant acted in the face of a real and not an apparent danger. The deceased, if the appellant told the truth, was attacking appellant with an axe at the time he struck the fatal blow. Therefore instructions on the issue of appearances or an apparent danger would have been abstract. The instructions of the court fully and correctly declared the law of self-defense applicable to the fasts of this record. See Pendergrass v. State, 157 Ark. 364, at pp. 377-78.

3. The instructions of the court on the defense of insanity were likewise correct. They conformed substantially to the doctrine of this court on that subject in the cases of Bell v. State, 120 Ark. 530-538; Hankins v. State, 133 Ark. 38; Kelley v. State, 146 Ark. 509; Woodall v. State, 149 Ark. 33.

4. Counsel for appellant have not insisted in their brief that the ruling of the court in giving its instruction No. 9, on its own motion, on the subject of reasonable doubt, is a reversible error. But in view of a new trial, inasmuch as the same instruction might be given again, we deem it proper to call attention to the fact that an instruction substantially in this form has been condemned in the case of Darden v. State, 73 Ark. 315-320, and also in Gilcoat v. State, 155 Ark. 455. In the.latter case it was expressly held reversible error to give such an instruction.

For the error indicated in giving the instruction on the subject of the icredibility of witnesses the judgment is reversed, and the cause remanded for a new trial.


author: Hart, J.,

text:
    Hankins v. Merchants’ & Planters’ Bank.
    Opinion delivered November 26, 1923.
    Vendor and purchaser — vendor’s lien — assignment.—Under Crawford & Moses’ Dig., § 476, providing that a vendors’ lien shown on face of a deed inures to the benefit of the assignee of the purchase money note, and § 7804, providing that an indorsement of a note without recourse does not impair negotiability, an indorsement of a vendor’s lien note “without recourse” to a bona fide purchaser did not release the lien.
    Appeal from Miller Chancery Court; James D. Shaver, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    J. A. Hankins and his wife, Sarah A. Hankins, brought this suit agains-t A. Wakin and the Merchants’ & Planters’ Bank to enforce a vendor’s lien for the purchase money of a certain tract of land in Miller County, Arkansas.
    The Merchants’ & Planters’ Bank stated that it was the owner in due course bf business of one of the notes given for the purchase price of the land in question, and, by way of cross-complaint, asked for judgment for the amount of the aforesaid note and a decree for the foreclosure of its lien.
    It appears from the record that J. A. Hankins and Sarah A. Hankins, his wife, sold to A. Wakin 200 acres of land in Miller County, Arkansas, for the sum of $3,500, evidenced by three promissory notes dated Dec. 30, 1918, and due and payable respectively on Dec. 30, 1919, 1920 and. 1921, to the order of J. A. Hankins and wife. The vendors executed' a warranty deed to the vendee for said lands, and the notes were described in the deed.

      J. A. Hankins was the principal witness for the plaintiffs. According to Ms testimony, he is the owner of the two purchase money notes for $1,00Q each, and they are due and unpaid. Hence this suit was instituted by him for the purpose of obtaining judgment' against the maker of the notes and for the foreclosure of his vendor’s lien. The note for $1,500 given for the purchase money was deposited by J. A- Hankins with the State National Bank as collateral security for a debt due by him to the bank. The Merchants’ & Planters’ Bank paid off this note at the instance of the maker, A. Wakin.
    O. M. Blocker, the cashier of the State National Bank, was a witness for the defendants. The note for $1,500 has indorsed on the back the following: “Without recourse on us. J. A. Hankins and Sarah Hankins.” That part of. the indorsement, ’“without recourse on us,” is in the handwriting of Blocker. The note was deposited with his bank by J. A. Hankins as collateral security for a loan obtained by him from the bank. The Merchants’ & Planters’ Bank was requested .by Wakin to take an assignment of the note for moneys advanced by that bank to him. The Merchants’ & Planters’ Bank agreed to do this, and Blocker, acting for J. A. Hankins and wife, wrote the qualified indorsement, “without recourse on us,” because Hankins and his wife did not wish to be liable as indorsers on the note.
    A. Winham was also a witness for the defendants. He acted for the Merchants’ & Planters’ Bank in the purchase of the note. The only reason for Hankins and his wife making a qualified indorsement of the note was to protect themselves from personal liability. There was no intention whatever to release the lien of the vendor by the transfer and assignment of the note. Wakin at the time was not in good financial circumstances, and Winham would not have purchased the note for the bank had he thought that he was releasing the vendor’s lien.

      The' chancellor found the issues in favor of the defendant, and judgment was rendered in favor of the plaintiffs against A. Wakin for the two notes held ¡by them and in favor of the Merchants’ & Planters’ Bank against A. Wakin for the amount of the note held by it. A lien on the land was decreed in favor of the holders of the notes in proportion to the amounts respectively owned by them, and a sale of the land to satisfy the lien was ordered, with directions to divide the proceeds proportionately.
    To reverse that decree the plaintiffs have prosecuted an appeal to this court.

      M. E. Sanderson, for appellant.
    Where an assignment is made without recourse, it does not carry with it the rights of a lien. 23 Ark. 255. An assignment of a note for purchase money without recourse amounts to an abandonment of the lien on the part of the vendor. 31 Ark. 240. An indorsement without recourse does not .affect the negotiability of the instrument. 4 A. & E. p. 9-276; 29 A. & E. 457; 31 Ark. 240; 60 Ala. 457; 39 Am. Dec. 327. Under the statutes, a lien retained in the face of the deeds becomes a security lor the payment of the notes mentioned- therein. 60 Ark. 90. The voluntary payment by a stranger of a debt due to the vendor of land, and which is a charge upon it, extinguishes the debt and' lien. 44 Ark. 504. Where a note for the purchase money for land is assigned, without recourse upon the assignor, the vendor’s lien does not pass bv such assignment to the assignee. 25 Ark. 130. The right of subrogation cannot be enforced until the whole debt is paid. . 76 Ark. 245; Sheldon on Subrogation, ^ 127: 96 Ark. 594; 4 Pom. Eq. Jur. § 1419; 27- Am. & Eng. Ency. Law, 210; 34 Ark. 113.

      Jno. N. Cook, for appellee.
    The cases, 23 Ark. 255; 30 Ark. 153; 29 Ark. 219; and 31 Ark. 240, relied on by appellants to sustain their -contention, are not in point. They discuss implied liens. Even liens reserved in the face of a deed were not assignable. 26 Ark. 617; 27 Ark. 518. The lien or equity held or possessed by the vendor of real estate, when expressed upon the face of the deed or conveyance, will inure to the benefit of the assignee. C. & M. Digest, §-476. "Where an express lien is reserved, the law does not raise an implied lien, and the rights of the parties depend on their contract and not on the mere implication of law. 27 R. C. L., § 357; 43 Ark. 464; 13 S. W. 722; 39 Cye. 1804. Indorsement of a note without recourse does not indicate that the indorsee takes with notice of any defects, or that he does not take on the credit of the other parties to the note, but that he takes without -recourse on the indorser. 80 Ark. 212. The notes and the liens are inseparable, and the lien passes by the assignment of the notes. 126 Ark. 425; 126 Ark. 177; 115 Ark. 366.
   Hart, J.,

(after stating the facts). The decree of the chancery court was correct. The Legislature of 1873 passed an act providing that the lien held by the vendor of real estate, when the same appears on the face of the deed, inures to the benefit of the assignee of the note for the purchase money, and may be' enforced by such assignee. Crawford & Moses’ Digest, §476.

Since the passage of that act this court has uniformly held that a vendor’s lien reserved in a deed as security for the purchase notes of land is analogous to a. mortgage, and passes with the transfer of the notes to a bona fide purchaser freed from any defenses which the grantor had against the grantee. Stephens v. Anthony, 37 Ark. 571; Pullen v. Ward, 60 Ark. 90; Smith v. Butler, 72 Ark. 350; Beard v. Bank of Osceola, 126 Ark. 420, and Graves v. First National Bank of Bentonville, 126 Ark. 177.

It is true that J. A. Hankins testified that the note for $1,500 held by the Merchants’ & Planters’ Bank was paid by that bank at the instance of the maker, A. Wakin. This, however, is denied by A. "Winham, who acted for the Merchants’ & Planters’ Bank in the purchase of the note, and by C. M. Blocker, who acted for the plaintiffs in the premises.

According to the testimony of Winham and Blocker, the note was purchased' by Winham for value in the usual course of business, and the qualified indorsement was placed on the back of the note in order that Hankins and wife might not (be held personally liable on their indorsement. The indorsement was made by the plaintiffs “without recourse” merely to release themselves from liability as indorsers, and not for the purpose of releasing the lien of the vendor, which passed by the assignment of the note. . ! i -7s!

The chancellor found the issue in this respect in favor of the defendants, and his finding is in accord with the weight of the evidence. An indorsement without recourse merely releases the indorser liability, and is not out of the usual course 'of trade.

In the case of Neely v. Black, 80 Ark. 212, it was held that the fact that the payee of a note indorsed it without recourse did not impair the negotiable character of the instrument, nor put the indorsee upon notice of any infirmity therein between the original parties. Judge Battle, speaking for the court, quoted with approval from a Virginia case the following:

“An indorsement without recourse is not out of the due course of trade. The security continues negotiable, notwithstanding such an indorsement. Nor does such an indorsement indicate, in any case, that the parties to it are conscious of any defect in the security, or that the indorsee does not take it on the credit of the other party or parties to the note. On the contrary, he takes it solely on their credit, and the indorser only shows thereby that he is unwilling to make himself responsible for the payment.”

Moreover, the matter is set at rest by our negotiable instrument law, wherein it is provided that such an indorsement does not impair the negotiable character of the instrument. Crawford & Moses’ Digest, § 7804.

It follows that the decree must be affirmed.


text:
    Eddins v. Williams.
    Opinion delivered November 26, 1923.
    1. Justice of the peace — jurisdiction of account. — Under Const., art. 7, § 40, giving justices of the peace concurrent jurisdiction in matters of contract where the amount does not exceed $300 and is more than $100, a justice has jurisdiction in matters of account not exceeding $300.
    2. .Clerks of courts — liability for printer’s fees. — The fact that a circuit clerk delivered to the publishers of a newspaper legal notices to be published, as required by Crawford & Moses’ Dig., §§ 6803, 6805, 6807, did not make the clerk personally liable for the publisher’s fees.
    3. Clerks op courts — liability of surety of clerk. — Even though a circuit clerk should make himself personally liable to the publishers of a newspaper for publishing legal notices coming to his office, the surety on his bond is liable merely for the clerk’s failure to pay over to persons entitled thereto .such printing fees as he has collected.
    4. Clerks of courts — implied promise to pay printer. — Where a circuit clerk sent most of the legal notices which came to him during his term of office to plaintiffs to be published, who, for convenience, charged the accounts to him, without objection on his part, and presented their account to him from time to time, but he paid such amounts only as he had collected from the parties liable, and this fact was known to plaintiffs, evidence held insufficient to submit to the jury on the theory of an implied contract.
    Appeal from Craighead Circuit Court, Jonesboro District; P. A. Lasley, special judge;
    reversed.
    STATEMENT OF FACTS.
    H. L. Williams and J. R. Williams, partners as Williams & Williams, brought this suit against Ben Eddins and the Jonesboro Trust Company, before a justice of the peace, to recover on an account amounting in the aggregate to $289.85.
    Judgment was rendered in favor of the plaintiffs by the justice of the peace, and the defendants duly prosecuted an appeal to the circuit court.
    In the trial in the circuit court, H. L. Williams was 'the principal witness for the plaintiffs. According to his testimony, he and J. R. Williams constitute the firm of Williams & Williams, who are the proprietors of the Jonesboro Daily Tribune, published in Jonesboro, Craig-head County, Arkansas. During the years of the transactions embraced in this lawsuit Ben Eddins was the circuit clerk. During his term practically all the legal notices which came through his office were sent by him to the plaintiffs to be published in their newspaper. In most of the cases Eddins would either take the notices over himself or telephone to the proprietors of the newspaper to send for them. In all cases the notices were published as required by law, and the plaintiffs would then present an account for the amounts due for such publications to Ben Eddins. The plaintiffs charged all the notices which were published to Ben Eddins. They would present a bill to him, and he would look it over and check it. Eddins would then pay the plaintiffs what had been paid in to him as clerk by the various parties interested, and then turn the bill back to the plaintiffs. The plaintiffs would present a bill to Eddins every thirty, sixty, or ninety days. Eddins never made any objections to the form of the bill, and, after checking it over, would only pay the items of it which had been collected by him as circuit clerk from the parties in whose interest the legal notices and publications had been made.
    On cross-examination Williams expressly stated that Eddins never paid anything for warning orders which he had not collected. Williams further stated that the plaintiffs knew that that was the basis on which the clerk was handling the matter, and that he would pay the newspaper when he had collected the items from the interested parties. The items sued on were never paid by Eddins, and bills were presented to him for payment of them from time to time after Eddins’ term of office had expired.
    Ben Eddins was the principal witness for the defendants. According to his testimony, the Jonesboro Trust Company signed his official bond for the faithful discharge of his duties as circuit clerk. It was his custom to send all legal notices which came to the circuit clerk’s office to the plaintiffs, to be published in their newspaper as required by law. When the parties interested in the publication of these notices paid him, he would pay the plaintiffs. In no case did Eddins pay the plaintiffs for publishing the legal notices until he had received payment from the parties for whose benefit the notices were published.
    Subsequent to the institution of this suit, Eddins collected the amounts due from a few parties in whose interest the notices were published,' and tendered the amount thereof to the plaintiffs. The plaintiffs refused to receive payment, claiming that Eddins and the sureties on his official bond were liable for the whole amount. It appears that the total amount of the legal notices published by the plaintiffs during the term of office of Ben Eddins was about $1,500, and Eddins paid them all except the items of the account sued on herein.
    The jury returned a verdict for the plaintiffs, and from the judgment rendered the defendants have prosecuted an appeal to this court.

      Horace Sloan, for appellant.
    The justice of the peace had no jurisdiction, and none was acquired by the circuit court on appeal. 84 Ark. 187. In the absence of special statute costs are recoverable only by proceedings in the cause in which they are awarded. 15 C. J. 298, § 733; 69 Ark. 577. Process for collection of costs must be issued in the name of a party to the action. 15 C. J., p. 91; 5 Ark. 110; 7 E. 0. L., p. 789, § 12. Costs are payable by the party at whose instance the publication was made (C. & M. Dig., § 6803), and are not taxable against the clerk who caused the publication to be made in his official .capacity. See 5 Ene. PL and Pr. p. 148; 5 Ark. 110; 7 R, C. L., p.789, §§ 12,13; 32 111. 446; 1 Mass. 208; 142 N. W. 928; 31 Ark. 643. Instruction No. 5 on the question of “account stated” was erroneous. See 74 Ark. 277; 126 Ark. 266; 1 R. C. L., 211. An account stated was not pleaded in the statement of claim filed in the justice court, which, was necessary. 74 Ark. 468; 39 Minn. 467; 20 Ore. 527. The court erred in not directing a verdict in behalf of the surety. The matter' complained of was not for money collected by the clerk for which he failed to account. The surety would not be liable on private contracts of the clerk.

      Lamb & Frierson, for appellee.
    To support 'the verdict the court will take the evidence at its strongest probative force in appellee’s favor. 129 Ark. 369; 142 Ark. 159; 142 Ark. 378. The action of appellant in failing to dispute or deny any feature of the account justified the jury in finding that there was an account stated. 74 Ark. 468; 41 Ark. 502. All that is required to be filed in the justice court is .The account, or written contract, etc., as set out in 'C. & M..Dig., § 6412. It was not necessary to claim an account stated, but, if so, under the evidence adduced, without objection, the pleadings would be considered amended to correspond to the proof made. 85 Ark. 217; 104 Ark. 500; 123 Ark. 510; 136 Ark. 338. The jury might well have found that the items of costs had been paid to the clerk, and, if so, his bondsman was liable. 38 Ark. 96.
   Hart, J.,

(after stating the facts). It is first insisted by counsel for the defendants that the justice of the peace had no jurisdiction over the subject-matter of this action, and that the circuit court acquired none on appeal. It is insisted that the items of the account sued' on are in no sense a matter of contract, giving the justice of the peace concurrent jurisdiction with the circuit court in matters of contract where the amount in controversy does not exceed the sum of $300, as provided in art. 7,'§ 40 of the Constitution of 1874.

In making this contention counsel rely upon the case of Buckley v. Williams, 84 Ark. 187, in which it is held that, where costs are recovered independent of any other judgment, they do not constitute a debt founded upon contract. The court said that a judgment for costs is a liability created by the statute. We do not think that case has any application whatever to the present one. The costs recovered in that case were incident to a suit between the parties. The account sued on is a list, of the items in cases in the .circuit court where a statute or orders of the circuit court provided for the publication of certain legal notices. The rule governing such cases is well stated in Nelson v. Board of Commissioners of Posey County, 105 Ind. 287. In that case the court said:

“The primary idea of ‘account’ is some matter of debt and credit, or of a demand in the nature of debt and credit between parties, arising out of contract, or of a fiduciary relation, or some duty imposed by law. It is none the less an account that all the items of charge are by one person against another, instead of being a statement of mutual demands of debit and credit, provided the charges arise out of contract, express or implied, nr from some duty imposed by law.”

It follows that the justice court had jurisdiction, and that the circuit court acquired jurisdiction on appeal.

On the merits of the case, counsel on both sides have filed exhaustive briefs. Without reviewing and discussing the arguments of counsel in detail, we will state that we have carefully considered their arguments in this case and feel constrained to hold that there was error in the judgment rendered in the court 'below. In the first place, we think there was no liability on the part of the Jonesboro Trust. Company, under our own decisions, as applied to the facts of this case, except for amounts collected by Eddins.

In the case of State v. Watson, 38 Ark. 96, the court held that when money in the control of the circuit court is, by its order, placed in the custody of the clerk, he holds it in his official capacity, and may be punished for contempt for failing to pay it over as ordered by the court, and deprived of his office for malfeasance; and that he and his sureties will be liable for it on his official bond to the party entitled to it.

Section 6803 of Crawford & Moses’ Digest provides that, when any notice or advertisement relating to any cause, matter or thing in any court of record shall he required by law or the order of the court to be published, the same, when duly published, shall be paid by the party at whose instance it was published, and that the payment may be taxed as other costs in the case.

Section 6805 provides the fees for such legal advertising.

Section 6807 provides that all such advertising shall be done in newspapers published in the county in which the proceedings are had.

The items sued on were for legal notices, which the circuit clerk was required to issue and which, • by the statute and by order of the court, were required to be published in some newspaper. It is true that the clerk acted in his official capacity in delivering the notices to the plaintiffs to be published in their newspaper, but this did not make him personally liable. His official bond was conditioned for the faithful discharge of his official duties, and to that extent his sureties were bound, but no farther. If the clerk should make a personal contract with a newspaper to publish legal notices which came to his office, he would be personally bound therefor, but the sureties on his official bond would not be liable. They would be only liable in case the clerk collected from the interested parties the amount fixed by law for the publication of the legal notices and failed to pay over these amounts to the publishers of the newspapers. In other words, the sureties on the bond of the clerk would be liable for a breach of his bond, and the breach would be in the clerk’s failing to pay over fees which he had collected, by virtue of his office, to persons entitled to receive the same.

It appears from the record that, in a few instances, the clerk had collected fees for publication of newspaper notices which he had not paid to the plaintiffs, but he tendered this amount to them, and the plaintiffs refused to receive the same. Therefore it was error in the court below to render judgment against the sureties for any greater amount than the fees collected by the clerk for legal publications which he had failed to turn over to the plaintiffs.

On the branch of the case relating to the personal liability of the circuit clerk, the law is well stated in Gardner v. Brown, 22 Ind. 447, in which the court held that a sheriff was not personally liable for printer’s fees for advertising, simply because he officially handed the advertisements to the printer, in the absence of a special contract.

In that case the statute required the sheriff to advertise the sale of real estate in a newspaper, if there be one in the county willing to publish such advertisement, and authorized him to incur the expense of so doing. In discussing the question the court said:

“The sheriff, however, will not be personally liable, unless he makes himself so by contract specially. The printer’s fee will be a part of the costs, and collectable as such. If it should be lost by any negligence on the part of the sheriff in failing to have it taxed, or otherwise, he might be liable on that ground; or if he should collect it and fail to pay it over, he might be liable foi money had and received, etc. But he would not be liable on the contract for advertising simply upon the fact that he had officially handed the advertisement to the printer.”

In the application of the rule there announced to the facts in this case we think the trial court erred in submitting the question of personal liability of the clerk to the jury. It is not claimed that the plaintiffs made any express contract with the clerk whereby the latter agreed to become personally liable for the payment of the fees for the legal notices which he sent lo the plaintiffs fór publication. The evidence does show that the clerk sent most of the legal notices which came into his office during his term as circuit clerk to the plaintiffs to be published; but it also is shown that, when the plaintiffs presented their account to him from time to time, the clerk only paid such amounts as he had collected from the parties for whose benefit and in whose interest the legal notices had been published. The plaintiffs knew this fact.

We are of the opinion that the plaintiffs might recover either upon an express or an implied contract upon the part of the clerk to become personally liable' for the payment of the fees for all the legal notices sent by him to the plaintiffs for publication, where the facts are legally sufficient to establish such liability.

As we have just seen, there was no attempt to show an express contract to pay the fees for publication on the part of the clerk. Neither is there any charge of negligence on his part in failing to collect the fees. It is only claimed that the facts established an implied contract on the part of the clerk to pay the fees. We think the evidence falls short of proving that fact. As above stated, he is not liable for such fees ¡because, as clerk, he handed the legal notices to the plaintiffs for publication. '

But it is insisted that he is liable because the plaintiffs charged the accounts to him and that he made no objections to this course. Under the circumstances it would appear that this was done simply as a matter of convenience. According to the testimony of the plaintiffs, they submitted the accounts to the clerk at stated intervals, and knew that he was only paying the amounts which he had collected from the parties interested. In all cases where he made no collections he did not pay. Therefore we are of the opinion that the evidence in the record is not legally sufficient to submit to the jury the personal liability of the defendant, Eddins, upon an implied contract. Under the testimony as disclosed by the record he will be only held liable for the amounts collected by him from the various parties which he failed to pay to the plaintiffs.

For the errors indicated the judgment will be reversed, and the cause remanded for a new trial,


author: Hart, J.

text:
    Moon v. State.
    Opinion delivered November 26, 1923.
    1. Criminal law — new trial — testimony op jurors. — Grounds for a new trial cannot be established by the affidavits of trial jurors, . for any cause other than that the verdict was made by lot.
    2. Criminal law — misconduct of jurors — evidence.—Where it was alleged, on motion for new trial, that the jurors had read an article on the case, published in a daily paper during their deliberations, evidence of the publisher of the newspaper that three of the jurors were subscribers to the paper is not sufficient to show that the article had been read by them.
    3. Witness. — impeachment by pleadings. — Pleadings in a case subscribed by a party can be used to impeach him as a witness only where they contradict evidence given by him at the trial.
    4. Witness — impeachment by motion for continuance. — Where a ■motion for continuance filed by defendant did not tend to contradict his testimony, it was error to permit its introduction to impeach him as a witness.
    5. Criminal law — prejudicial error. — Evidence improperly admitted must be treated as prejudicial unless there is something to show that it was not.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      Brundidge & Neelly, for appellant.

      J. 8. Utley, Attorney General, JohnL. Garter, Assistant, for appellee.
   Hart, J.

Hinton Moon prosecutes this appeal to reverse a judgment and sentence of conviction' against him for the crime of seduction.

This is the second appeal in the case, and reference is made to the opinion on the former appeal for a statement of the evidence, which is not materially different from that on the present appeal. Moon v. State, 155 Ark. 601.

The first assignment of error is that the verdict of the jury should' be set aside because three members of it had read an article on the case, published in a daily paper in the town where the case was tried, during the deliberation of the jury. The testimony of the jurors is mainly relied upon in support of this assignment of error. Grounds for a new trial cannot be established by the affidavits of the trial jurors for any other cause than that the verdict was made by lot. Capps v. State, 109 Ark. 193.

But it is insisted that this ground for a new trial is established by other evidence than that of the jurors themselves. The only other evidence on the point is that of the publisher of the daily newspaper, who testified that three of the jurors were subscribers to the paper. This testimony falls short of showing that the article in question commenting on the case was read by the jurors. Hence we hold that this assignment of error is not well taken.

The next assignment of error is that the court erred in allowing the State to introduce in evidence a motion for a, continuance, subscribed' and sworn to ¡by the defendant, for the purpose of contradicting- his testimony. We think that this assignment is well taken.

The court admitted the motion for a continuance in evidence for the purpose of impeaching the defendant as a witness. Section 4187 of Crawford & Moses’ Digest relates to the mode of impeachment of witnesses. Among other things it provides that a witness may be impeached by the party against whom he is produced, by showing that he has made statements different from his present testimony.

In the application of this statute to civil cases it has been held that -a witness may be impeached by introducing his pleading under oath in another case which is in conflict with his testimony. Texas & St. Louis Ry. Co. v. Donnelly, 46 Ark. 87.

Again, in St. Louis, Iron Mountain & Southern Railway Company v. Faisst, 68 Ark. 587, it was held that an affidavit, which the witness admits having signed, though written down by another, is admissible in the impeachment of his testimony, if contradictory thereof.

In applying the mode of impeachment provided by the statute to criminal cases, in Weaver v. State, 83 Ark. 119, it was held that, where an accused takes the stand in his own behalf, he does so subject to the rule allowing the testimony of a witness to be impeached by proof of contradictory statements, as, for example, in an affidavit for continuance.

In the later case of Baker v. State, 85 Ark. 300, it was held that, where the defendant filed an application for continuance on account of the absence of a certain witness, in which he alleged what the witness would swear if present, which application was refused, and the witness subsequently appeared and testified somewhat differently from defendant’s statement in the application, it was error to permit the application to be read for the purpose of impeaching the defendant, if such application did not conflict with defendant’s testimony.

That case exactly fits the present one. At á former term of the court the defendant had filed a motion for a continuance, in which he set out the testimony of three absent witnesses. The motion was subscribed and sworn to by him. The case was continued for another term. At the trial of the case two of the witnesses testified to a state of facts somewhat different from the facts set out in the defendant’s motion for a continuance.

The.motion for a continuance referred to is somewhat lengthy, and we do not deem it necessary to set it out. It is sufficient to say that it was introduced by the State for the purpose of impeaching the defendant. The defendant was a witness in his own behalf, and there is nothing whatever in the motion for a continuance which contradicts the testimony of the defendant given at the trial.

Under the authorities cited above, it is well settled that pleadings in a case subscribed by a party can only be used to impeach him as a witness where such pleadings or statements are contradictory to the evidence given by the party at the trial.

This rule was recognized by this court on the former appeal. One of the grounds for a reversal was that the trial court erred in allowing the prosecuting attorney to read the defendant’s motion for a continuance in his argument to the jury, where it did not appear that the motion was introduced in evidence. The court said that, if the State desired to use the motion to contradict the testimony of the defendant, and thus to impeach his testimony, it should have introduced the motion as evidence in the case. That was tantamount to saying that the motion could not be introduced in evidence unless it tended to contradict the testimony given by the defendant. If it was prejudicial to allow the prosecuting attorney to read the motion for a continuance to the jury where it had not been introduced in evidence, it would be equally prejudicial to allow it to be introduced in evidence where it did not tend to contradict the evidence of the defendant, and thus become a mode of impeaching him as a witness. The general rule is that evidence improperly admitted must be treated as prejudicial unless there be something to show that it was not. Elder v. State, 69 Ark. 648.

The fact that the State insisted bn reading the motion for a continuance in evidence, over the objections of the defendant, showed that it was believed by the prosecuting attorney that it would affect the jury unfavorably to the defendant. Then, too, the jury might have considered that it tended in some measure to corroborate the testimony of the two witnesses mentioned in it, who, as above stated, testified to a somewhat different state of facts to those recited in the motion for a continuance.

For the error in allowing the motion for a continuance to be read in evidence for the purpose of impeaching the defendant as a witness, the judgment will be reversed, and the cause will be remanded for a new trial


author: Smith, J.

text:
    Gage v. Blount.
    Opinion delivered November 26, 1923.
    1. Appeal and error — conclusiveness op verdict, — A verdict based on conflicting evidence is conclusive on appeal.
    2. Release — consideration.—Where seller and buyer agreed that suit should be brought by the buyer against a carrier for damages to a shipment, such suit to he conducted by and at the expense of the buyer, such agreement was a sufficient consideration to support a release of the buyer’s claim against the seller.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge;
    affirmed.

      Chew & Ford, for appellant.
    1. The action was based upon the implied warranty that the corn was sound and merchantable. Appellant, having had no opportunity to inspect the corn, appellees became liable to him for all damages sustained by him because of its damaged condition.. 113 Ark. 169; 134 Ark. 514; 94 Ark. 318.
    2. Appellees had no cause of action against the railroad company for damage done to the’corn; but if they did have a cause of action, it was non-assignable. C. & M. Dig., § 475; 47 Ark. 541; 80 Ark. 167.

      J. S. Simmons, for appellees.
   Smith, J.

Appellant bought a carload of corn which had been shipped to Bateliffe, Arkansas, subject to shipper’s order. There was no opportunity to examine the corn until appellant had paid to the local bankdhe draft for the value of the corn to which the bill of lading was attached. After opening the car appellant discovered that much of the corn was wet, sour and unfit for use, whereupon he called appellees (whose place of business is in Fort Smith) over the telephone, and advised them the condition of the corn, and was advised by appellees to accept the corn, and, if it was not all right, appellees would make it so. Appellant sold the corn at'less than its cost, and brought this suit to recover the damages.

The suit was prosecuted upon the theory that the action was based upon a breach of warranty, both express and implied, that the corn was sound and merchantable, and the court gave the instructions prepared by appellant which submitted that issue.

There was a verdict and judgment for the defendants, and1 it is quite obvious that the verdict was based upon the defendants’ instruction numbered 2, as all the other instructions except defendants’ instruction numbered 1, which dealt with the burden of proof, declared the law applicable to appellant’s theory of the case. Said instruction numbered 2 reads as follows:

“2. You are instructed that, if you find from a preponderance of the evidence in this case that Claude Cage, plaintiff herein, made a verbal agreement with the defendants that if they would transfer and assign to plaintiff an alleged claim or cause of action which said defendants had and held against the Missouri Pacific Railway Company for damages to the corn in question, that he, Claude Cag’e, plaintiff herein, would release and hold immune said defendants from liability which plaintiff had or held against said defendants growing out of the damaged condition of the corn here in controversy, and that defendants, relying upon said verbal agreement made with plaintiff, assigned and transferred their said claim or cause of action to plaintiff, and that said' assignment was made under an express contract or agreement with plaintiff releasing them from liability to plaintiff, if any, then your verdict should be for the defendants.”

There was a demurrer to the answer and a motion to strike out of the pleadings all the allegations relating to the defense set out in the instruction quoted. This demurrer was overruled, as was also the motion to strike, and exceptions were duly saved. Our discussion of the instruction will dispose of this assignment of error.

There was testimony on behalf of the defendants to the effect that it was believed that the corn was damaged by reason of the fact that it had been shipped in a leaky car, in which, it had remained twenty-three days after it had been loaded in Nebraska, where the shipment originated, and that, after several conferences between appellees and appellant, it was agreed that appellant should bring suit against the railroad company, and should join appellees as parties plaintiff, as well as the Parker Corn Company, the original consignor, which had itself sold the corn to appellees, and that appellees would turn over to appellant the expense bill and help appellant to make the proof in the case, .and would release any claim they had against the railroad company in appellant’s favor, and that any judgment recovered should inure to appellant’s sole benefit, and that, in consideration of this agreement, appellant released all claim for damages against appellees. Appellant denied that it was any part of the agreement that he should release his claim for damages against appellees.

At the time this agreement was made, whatever its terms may have been, the parties executed the following writing:

“Fort Smith, Arkansas, July 6, 1920.
“Whereas the undersigned, Claude Gage, of Ratcliffe, Arkansas, has sustained great loss from the shipment of carload of corn in February, 1920, in a car branded and numbered as follows: ‘G. N. No. 212040.’ And whereas the railroad company over which the said car of corn was shipped refused to pay said loss. And whereas said car of corn was shipped to shipper’s order, the draft attached to bill of lading; and whereas the said Gage has paid said draft.
“Now therefore -we, the undersigned, do hereby authorize the said Gage to employ counsel and bring suit to recover said damage in our respective names jointly with his, the said Gage. It is agreed and understood that whatever attorney’s fees and court costs may be incurred in said suit is to 'be paid and borne by the said Gage, and the said Gage hereby agrees and obligates himself, his heirs and executors, administrators and assigns, to hold1 the said parties wholly harmless from any costs or attorney fees in the prosecution of said suit.
“Claude Gage.
“Fort Smlth Grain Company,
“By E. L. Yandell.
“Parker Corn Company,
“By C. H. Manning, Secretary.”

Thereafter appellant employed counsel of his own choice, who brought suit against the railroad company in the names of all the parties, and testimony was taken in that case, but, as the testimony appeared to establish the fact that the corn had been stored in open pens before shipment, and thus exposed to the weather, and that the car in which it had been shipped was not leaky or defective,. a nonsuit was taken, and appellees were advised of that fact. Appellees were not consulted about and had no part in the conduct or management of the suit against the railroad, and were not consulted as to the advisability of taking the nonsuit.

It is insisted that error was committed in giving the instruction set out above, for the reason that any agreement, if one was made, to release appellees was without consideration, and therefore void.

Of course, the jury’s verdict is conclusive of the fact that an agreement was made by which appellant was to release his claim against appellees; and we do not think this agreement was void as being without consideration. There might have been some uncertainty in the minds of the parties as to who should sue the railroad, and appellant might have believed that he could recover a larger judgment against the railroad company than he could against anpellees. However, all parties agreed that a suit should be brought in the names of all parties in interest, which should be conducted by appellant at his own expense and risk, and if it was agreed that the proceeds of this litigation should belong to appellant, the agreement that they should be so applied was a sufficient •consideration to support the release of the claim against appellees.

No error appears, and the judgment is affirmed.


text:
    Jones v. State.
    Opinion delivered November 26, 1923.
    1. Criminal law — polling jury — examination of jurors. — It was not error, on polling the jury, to refuse to permit defendant counsel to question each juror as to whether he would have returned a verdict of guilty if the court had not given a certain instruction, as, under Crawford & Moses’ Dig., § 3220, the jurors could not impeach their verdict in such manner.
    2. Criminal law — instruction—sentencing minor to reform school. — Where, in a murder case, the jury requested to be instructed as to their power to sentence defendant to the reform school, the court properly told them that they had no such power, but that, if convicted, the court had power to send him to that school.
    3. Criminal law — instructions—objection.—Instructions not objected to nor assigned as ground for motion for new trial will not be considered on appeal.
    4. Homicide — instruction as to manslaughter. — One charged with murder in the first degree could not complain on appeal that the court charged on the law of manslaugher.
    Appeal from Lafayette Circuit Court; James H. McCollum, Judge;
    affirmed.

      Tillman B. Parks, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Barden Moose, Assistants, for appellee.
   Smith, J.

Appellant was indicted for murder in the first degree, alleged to have been committed by shooting Ed Twitty, and was convicted of voluntary manslaughter and given a sentence of five years in the penitentiary, , and, to reverse that sentence, has appealed.

This killing occurred in the latter part of July, 1923. It appears that, in the early part of 1923, Twitty had shot and killed appellant’s father, and there was testimony that thereafter appellant became moody and constantly brooded over this tragedy, and was much affected by it. There was testimony that thereafter appellant neither slept soundly nor ate regularly, and the defense interposed was that appellant had become of unsound mind.

After hearing the instructions of the court and the argument of counsel, the jury retired to consider its verdict, and thereafter returned into open court and, through the foreman, asked the following question: “The foreman: We want an instruction as to the sentence to the reformatory school — whether we have any jurisdiction as jurors.” To this question the court gave the following answer: “The court: You have not the power to sentence him to the industrial school. Should you convict him and assess his punishment at imprisonment in the penitentiary, the court has the power to sentence him to the industrial school.” Appellant, at the time, objected to the question of the jury, and excepted to the answer of the court.

Thereupon, according to the recitals of the record, “the jury again retired to consider their verdict, and thereafter returned into open court” a verdict finding appellant guilty of manslaughter and assessing his punishment at five years in the penitentiary.

Upon reading the verdict, counsel for appellant requested a poll of the jury, and this was had. Counsel then asked to be allowed to inquire of each juror whether he would have returned a verdict of guilty if the court had not informed the jury that, if a conviction was returned, the defendant would be sentenced to the industrial school by the court. But the court refused to permit the jurors to be thus interrogated. It will be observed, from the question and answer set out above, that the court did not advise the jury that appellant would be sentenced to the industrial school, but only that the court had the power to do so.

The court properly refused to permit the question to be asked the jurors, as the statute prohibits jurors from thus impeaching their verdict. Section 3220, C. & M. Digest; Capps v. State, 109 Ark. 193; Lemons v. State, 155 Ark. 59; Arnold v. State, 150 Ark. 27; Lamb v. State, 135 Ark. 275.

No error was committed in answering the question asked by the jury. As we have pointed out, the court did not tell the jury that the defendant would be sent to' the industrial school, if convicted, but that it was within the power of the court to sentence him to the industrial school if he were convicted; and this is the law.

The case is unlike the cases of Pittman v. State, 84 Ark. 292, and Bird v. State, 154 Ark. 297. The convictions in those cases were reversed because the court, in each case, erroneously declared the law to be that appellant’s sentencé, if convicted, would be served, in any event, in the reform school, and not in the penitentiary.

The record in the present case is like that in the case of Freeman v. State, 156 Ark. 592, where the jury asked to be advised what the law was in regard to the sentence of felons under eighteen years of age. In that case the court read the statute; in this case the court answered the question by a correct statement of the law. In the Freeman case, above, we said, in referring to the Pittman case, supra, that “it was held in the case cited, and in later decisions that it is error to give incorrect information to the jury as to the substance and effect of this statute. It will be observed from the recitals in the bill of exceptions in the present case that the court did not volunteer the information on this subject at all, but merely read the statute to the jury when so requested, and read it correctly. We think there was no error committed by the court in this respect. ’ ’ see also Bohanon v. State, 160 Ark. 431.

Counsel complain that the court charged the jury on the law of manslaughter. It appears, however, that no objection was made to the instruction when it was given, and that the motion for a new trial did not assign this as error. Moreover, we have repeatedly held that this was not error of which the defendant conld complain. Johnson v. State, 156 Ark. 459; Freeman v. State, 150 Ark. 387; Webb v. State, 150 Ark. 75; McGough v. State, 113 Ark. 301; Roberts v. State, 96 Ark. 58.

No error appearing, the judgment is affirmed.