author: McCulloch, C. J.

text:
    Sanderson v. Marconi.
    Opinion delivered June 6, 1921.
    1. Trial — requests for peremptory instruction — effect.—Where each party asks for a peremptory instruction, no other instruction being asked for, this was tantamount to an agreement that the court might decide the issue, and it was not erfor to give a peremptory instruction to render verdict for the plaintiff if the evidence was legally sufficient to sustain the verdict.
    2. Indemnity — recovery of money not used. — Where money was paid to bondsmen as indemnity against loss, there was an implied promise to return any of the money not used in discharging liability under the bond.
    3. Appeal and error — question not raised below. — Where no exception was saved in the trial court to the exclusion of testimony, the appellate court is not called on to decide anything in that regard.
    Appeal from Miller Circuit Court; Geo. R. Haynie, Judge;
    affirmed.

      T. E. Webber, Jr., and M. E. Sanderson, for appellants.
    Appellee can not recover any part of the money deposited, because it was put up by appellee for the express purpose of obstructing or perverting the due administration of justice. 46 Ala. 523; 81 Ark. 41. Contracts to suppress evidence, or in any way interfering with or obstructing the course of justice, are against public policy and void. 80 Ark. 332. Where a claim or right to recover depends on a transaction malum in se or prohibited by law, and that transaction must necessarily be proved to make out the case, there can be no recovery. 91 Ark. 205. Money paid or advanced under an unlawful agreement, there was but one issue left, viz.: Plaintiff vanced it. 119 Ark. 502. See also note to L. R. A. 1918 C, p. 73.

      John N. Cook, for appellee.
    1. The material allegations of the complaint — putting up the money, paying out $350 in compromise of the judgment on the bond and the conversion of the remaining $350 by appellants — ’are not denied by the answer or evidence. The court properly ruled that there was an implied promise or assurance that any part of the money put up and not used would he returned. 110 Ark. 578; 140 Id. 512.
    2. The second paragraph of the answer does not allege the corrupt agreement appellants now contend for —that the bond was executed for the purpose of enabling appellee’s son to get out of jail and run off.
    The law presumes every man is honest until the contrary is shown. 87 Ark. 358. A party can not complain that the court did not give an instruction on matter which the court held was not an issue in the case and to which no objection was made. 113 Ark. 120. When the court ruled that paragraph one of appellants ’ answer was not a defense, and that their answer alleged no fraudulent agreement can not be recovered by the person who ad-further understood from defendant Frank Carrara and from the advice of defendant M. E. Sanderson that none of this money would be returned to him in case his son failed to appear under the requirements of the bond. This phase of the case was never presented to the court by any kind of request, and it was a provision for a penalty and would not be enforced. 73 Ark. 432; 106 Id.
      274. A defense not relied on in the lower court can not be relied npon on appeal to the Supreme Court. 71 Ark. 242. The answer of appellants and the evidence constituted no defense to the suit, and the peremptory instruction was proper. See 48 Ark. 491; 103 Id. 114.
    3. The testimony for appellants was not uncontra-dicted or undisputed, and the court properly refused the oeremptory instruction asked by appellants. 142 Ark. 240: 82 Id. 86; 113 Id. 190.
    4. Both parties aske a peremptory instruction, and the court’s findings are the same as the verdict of a jury. 142 Ark. 100; 118 Id. 134; 100 Id. 71.
   McCulloch, C. J.

The plaintiff, Louis Marconi, instituted this action against the defendants alleging that he delivered to them the sum of $700, consisting of $600' in cash and a bond of the United States of the denomination and value of $100, to indemnify them against loss as sureties on the appearance bond of plaintiff’s son; and that the defendants accepted said sum and executed said bond on condition that the funds would be returned to him in the event plaintiff’s son complied with the terms of the bond, and that the defendants should use such part of the funds so paid over as would be required to discharge their liability in event of forfeiture on the bond, plaintiff delivered the money to defendants “with any bond and a judgment in favor of the State which had been compromised by defendants on the payment of the sum of $350, and the prayer of the complaint was for the recovery of the balance of the money so paid over. Defendants answered, admitting the receipt from plaintiff of said funds and government bond, but denied that Plaintiff alleged that there had been a forfeiture of the promise or assurance whatever from said defendants that any part of this money would be returned in case a forfeiture was taken upon said bond.” The answer contained a further statement ‘ ‘ that the plaintiff well understood, and it was so explained to him, * * * that if he executed said bond that his son * * * would flee the country and would not be in attendance when his case was called in said court, and that if plaintiff put up the money for said bond the whole of the same * * * would be entirely lost te> him. The plaintiff further understood * * * that none of the money would be returned to him in case the son failed to appear under the requirements on said bond.” There was a trial before a jury which resulted in a verdict in favor of the plaintiff for the sum of three hundred and fifty dollars. This verdict was rendered on the peremptory direction of the court.

The facts of the case, as related in the pleadings and set forth in the testimony, are that plaintiff’s son was arrested and held in custody on a charge of felony, and, in order to induce one of the defendants, Frank Carrara, to sign a bail bond, the plaintiff delivered to one of the .banks in Texarkana, where Carrara resided, the sum of $600 in money and a government bond of the denomination of $300 and drew a check in Carrara’s favor for the amount of the money. Carrara signed the bond, and the accused, after being liberated on the bond, fled the country. A forfeiture was taken on the bond, and judgment was rendered against the sureties in the sum of $500, which appellants compromised for the sum' of $350 and paid it. The contention of plaintiff is that he paid over the money under a promise that it was to be returned to him if there was no forfeiture of the bond, and that any part of it not used in paying a judgment on the bond was to be returned to him. The defendants contend that there was no express promise to return the money, but, on tiie contrary, that the money was received from plaintiff with the understanding that none of it was to be returned to him in any event, whether there was a forfeiture on the bond or not. One of the defendants offered to testify concerning an agreement that the money was paid with the understanding that the accused was to flee the countrv, but the court excluded that testimony on the ground that such agreement was not pleaded in the answer. There was no exception saved to the ruling of the court in that regard.

The state of the proof is such that the jury might have found that the agreement between the parties was

that the money was to be paid over to defendant Carrara as compensation to him for making the bond, and that no part of it was to be returned in any event, or the jury might have found from the testimony that the money was paid over to Carrara merely to indemnify him against any loss which he might sustain by reason of becoming surety on the bond. Each party asked for a • peremptory instruction, and the court granted the plaintiff’s request and refused the request of the defendants. This was tantamount to an agreement that the court should decide the issue, and it was not error to give a peremptory instruction under those circumstances!, if the evidence was legally sufficient to sustain the verdict, no other instructions being asked for or given. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71. There was, as before stated, sufficient evidence to warrant the jury in ’ finding that, while there was no express promise to return the money, there was in fact an agreement that the money was paid to Carrara as indemnity against loss, ■and under those circumstances there was an implied promise to return any of the money not used in discharging liability under the bond.

It is argued here that there was evidence offered sufficient to show that the contract was unlawful, in that it was especially agreed that the money was paid over in consideration of the fact that the defendants would make the bond and the boy was to flee the country. There was no exception saved to the ruling of the court excluding this testimony, therefore we are not called on to decide anything in that regard. Even if the language of the answer be regarded as sufficient to present this issue, the findings of the court on the request for a peremptory instruction are sustained by sufficient evidence on such issue.

The judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Spivey v. Spivey.
    Opinion delivered June 6, 1921.
    New trial — time op presenting motion. — Where a judgment was rendered against plaintiffs on the day before the court adjourned, but was not presented to the circuit judge in vacation until after thirty days after its rendition, as required by Crawford & Moses’ Digest, § 1314, plaintiffs were in the same attitude as if they had permitted the term to lapse without having filed a motion for new trial or having had the same passed upon by the court within the time allowed by law.
    Appeal from Desha Circnit Court; W. B. Sorrells, Judge;
    affirmed.

      John T. Cheairs, Jr., for appellants.
    • 1. Argues the merits of the controversy which are not passed on by the court, citing Kirby’s Digest, §§ '2698-9, 2700 to 2715; 52 Ark. 193-201; 40 Cyc. 1966; 21 Id. 568; 53 Ark. 261.
    2. The widow of Louis Spivey was absolutely barred from participating in the fund. She must renounce the will in order to claim dower. 40 Cyc. 1968; should be divided among the appellant heirs.

      Danaher & Dcmaher and DeWitt Poe, for appellee.
    1. The statute has not been complied with, and there is no bill of exceptions. C.- & M. Digest, § 1314. The motion for new trial was not presented to the judge within the time prescribed by law. Ib.

    2. The provision in the will was not in lieu of dower, and it was not necessary for the widow to renounce the will to take dower. 52 Ark. 200. The money 64 Ark. 1; 117 Id. 144; 121 Id. 479. Jarman on'Wills, p. 502; C.'&M. Dig., § 3526.
   McCulloch, C. J.

Appellants are the next of kin and heirs at law of Louis Spivey, who died testate and by his will disposed of all his property except a certain sum of money. The testator by his will gave certain land and personal property to his widow, and the balance of his estate, except a sum of money not disposed of, was devised to certain of his relatives, and to his wife’s grandchildren — these last being the descendants of children born to the widow of the testator by a former marriage.

The executor named in the will administered the estate, and this proceeding was begun in the probate court to require the executor to pay appellants the sum of money not disposed of by the will. The case was heard in the probate court, and an appeal was duly prosecuted to the circuit court, where a trial of the issue was had. The decision there turned upon the question of the duty of the testator’s widow to elect whether she would take under the will or not. The court rendered judgment in favor of the widow on August 25, 1920, and on the following day adjourned for the term. A motion for ¡a new trial was filed on August 26, the day of adjournment, but the motion was not presented to the court until the 28th day of September, when the same was heard by the judge in vacation and overruled. In overruling the motion for new trial the court did not endorse on the back of the motion therefor an order granting an appeal and specifying a time within which a bill of exceptions might be filed.

In prosecuting this appeal appellant has proceeded . under section 1314, C. & M. Digest, which reads as follows:

“The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision seven of section 1311, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented; provided, that where the verdict or decision is rendered within three days of the expiration or adjournment of the term, a motion for a new trial, with an alternative prayer for appeal to the Supreme Court in case said motion' be overruled, may be presented, upon reasonable notice to the opposing party or his attorney of record, to the judge or chancellor, or his successor in office, of the district in which said verdict or decision was rendered, wherever he may be found, at any time within thirty days from the date of said verdict or decision, and such judge or chancellor shall pass upon said motion and indorse his ruling thereupon, upon the back of the motion, either granting the-motion,or overruling same; and if said motion be overruled he shall also indorse upon said motion, Ms order granting an appeal to tlie Supreme Court, and Ms further order specifying a reasonable time allowed in said cause for filing a bill of exceptions. Upon filing such motion and the judge’s order thereon with the clerk of the court where the cause is pending, it shall become a part of the- records and files of the cause, and shall have the same legal force and effect as if same had been filed in term time, as now provided by law.”

It is insisted that this statute has not been substantially complied with, and that there is, therefore, no bill of exceptions bringing into the record for review the testimony in the case.

This contention appears to be well taken. The statute requires that the motion for a new trial be presented to the court for its action and be acted upon by the court within thirty days of the date of the verdict or decision. This was not done within the time limited by law; nor did the court fix the time within which a bill of exceptions might be filed. The statute not having been substantially complied with, appellants are in the same attitude they would be in if they had permitted the term to lapse without having filed a motion for a new trial or of having had the same passed upon by the court during the term at which it was filed, and the judgment must, therefore, be affirmed. Field v. Waters, 148 Ark. 325, and cases there cited.

It is so ordered.


text:
    Jordan v. Adams.
    Opinion delivered June 6, 1921.
    1. Evidence — parol evidence to explain writing. — Where a written contract required the buyers to accept all apples on the ground after a certain date, parol testimony was admissible to prove that it was the seller’s duty to take away the fallen apples on such date; such testimony being introduced, not for the purpose of varying or adding to the terms of the contract, hut for the purpose of showing what was essential to a compliance with its terms.
    2. Appeal and error — harmless error. — In an action by buyers of a crop of apples to recover the balance of a deposit advanced by the buyers to be held by the seller in reserve, where the latter defended on the ground that the buyers broke the contract by refusing to pay for the last car load delivered, to seller’s damage, the buyers contending that the amount so held in reserve was more than sufficient to pay for that car and for the remainder of the crop, it was harmless error to permit cross-examination of the seller as to why he refused an offer of the buyers to place an additional sum in a bank to cover any subsequent indebtedness; such testimony being admitted to test the seller’s good faith and credibility, and there being no dispute in the case that the written contract controlled.
    3. Sales — breach op contract. — Where the contract price of the remainder of a crop of apples to be delivered amounted to a comparatively small sum in excess of a balance on deposit held by the seller in reserve to apply upon final settlement, on the buyer’s refusal to pay for a car load upon the ground that the amount so held in reserve was sufficient to pay for such car load° and for the balance of the crop, the seller was not justified in treating the contract as broken by the buyer, and selling the apples to third persons at a price less than the contract price, and holding the buyer liable for the difference.
    4. Appeal and error — harmless error. — Where the contract price of the remainder of a crop of apples to be delivered amounted to a comparatively small sum in excess of a balance on deposit held by the seller in reserve to apply upon final settlement, an instruc-, tion that the buyer did not break the contract by refusing to make further payment for the last car load delivered, so as to justify the seller in treating the contract as rescinded if the buyer, in good faith, believed that the deposit would be sufficient to pay for the remainder of the crop, held harmless.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Rice & Rice, for appellant.
    The court erred in the admission of testimony and its rulings thereon and in giving the third instruction for plaintiff. This instruction is erroneous because it permits plaintiff to breach their contract, which carries with it the legal duty to pay for all apples on delivery, “if they acted in good faith as reasonable men, etc.” 56 Ark. 320. This is a similar case and is controlling here.
   McCulloch, C. J.

Appellant and appellees entered into a written contract on August 7, 1919, for the sale and delivery by appellant to appellees of all apples grown on certain farms in Benton County during the year 1919, at the price of $2.50 per cwt. The contract specified that appellees were to take, at the price mentioned, all of the apples “except what is called rots and knots, a knot being defined as an apple so badly misshapen as to be unmerchantable. ’ ’ The contract also contained the following provision: “Purchaser also agrees to take .all apples on the ground after September 15 that are not knots, and rots, except that for Jonathan date to be August 22, and Peerless September 1.” The stipulation in the contract with reference to mode of payment and delivery reads, as follows:

“Fifteen hundred dollars to be paid upon the signing of the .contract, this amount to be held in reserve to apply upon final settlement. Payment for all fruit shall be due when delivered to the said Lowell Fruit Company, f. o.. b. cars at Centerton, Arkansas.

‘ ‘ The said J. N. Jordan agrees to place the fruit .on the screen and stand expense of removing rots 'and knots, also stand the expense of delivering the fruit to Center-ton, Arkansas, to the car or the evaporator, whether in package or in bulk.”

The parties proceeded under the contract until most of the fruit from the orchards mentioned had been delivered, the last delivery being a carload on November 5, 1919, the price of which amounted to $712.75, and a controversy arose between the parties after this carload had been hauled away from the place of delivery by the railroad company as to whether or not appellees should pay this amount to plaintiff or charge it against him on the amount advanced as a reserve on final settlement.' Appellant insisted on payment of the amount, and appellees refused to pay the money, claiming that the amount due on that car and the price for the remainder of the apples would not be sufficient to exhaust the sum of $1,500 which had been advanced. Appellant then refused to deliver any more apples under the contract and gave appellees written notice to that effect. He sold the remainder of the apples to other parties at a price which he claim a resulted in a loss to him.

Appellees instituted this action against appellant to recover the sum of $608.60, alleged to he due on the balance of the sum of $1,500 advanced, after crediting the price of the last carload of apples delivered and also after crediting a certain amount paid into court by 'appellant after the commencement of the suit, leaving a balance of six hundred eight dollars and sixty cents. Appellant 'answered alleging that appellees broke the contract by refusing to pay for the last car delivered and asked for damages for loss on the remainder of the apples, and he also included in his counterclaim certain items of charges against appellees for improper culling of appellees, making the total of his counterclaim $608.60, the precise amount claimed by appellees. It will be observed from the-foregoing recitals that this ‘action is to recover the balance of the money advanced as a guaranty under the contract after crediting the last shipment of apples and the counterclaim represents items for damages claimed against appellees for alleged breach of the contract in refusing to accept apples. The issues were submitted to the jury, and there was a verdict in favor of appellees for the sum claimed, $608.60, and appellant has prosecuted his appeal.

There were numerous assignments of error in the motion for new trial, but we will only discuss those which are argued in the brief. In the first place, it is argued that the court erred in permitting witnesses to testify concerning the duty of appellant to clean up under the trees — in other words, to take away the fallen apples— on the dates .specified in the contract for appellees to begin taking apples. The argument is that the contract is unambiguous, and that additional requirements can not be engrafted upon it by parol testimony. This testimony was introduced, not for the purpose of Varying the terms of the contract or to add terms, but for the purpose of showing what was essential to a compliance with the terms of contract. Appellees being bound under the contract to accept all apples on the ground after a certain date, this testimony tended to show that it wtas essential that the fallen 'apples be cleared away from the trees on the date mentioned so as to determine what appellees were to accept. We think the court was correct in permitting this testimony to be introduced.

The next assignment argued here relates to the ruling of the court in requiring appellant, on cross-examination, to give the reason why he was unwilling to (accept a certain offer made to him by the agent of appellees for the deposit of $2,000 in a bank at Centerton. When the last carload of apples was delivered, the price amounting to $712.75, a controversy arose between the parties as to whether this price should be paid to appellant or whether it should be. credited on'the amount of the $1,500 held as reserve. The testimony shows that appellees claimed that the amount held in reserve was more than sufficient to pay for that ear and the remainder of the apples. A witness for appellees testified that during the controversy he made- an offer to appellant that appellees would put up in a bank at Centerton an additional sum of $2,000 to cover the price of any additional apples and that appellant refused this 'offer. On the cross-examination of appellant he was asked to give Ms reason why he refused this offer. Appellant’s reply was that the deposit might be withdrawn from the bank as soon as he finished delivering apples. We are unable to see any prejudice whatever in this question and answer. It merely occurred in the cross-examination of appellant for the purpose of testing his good faith and credibility. It was undisputed in the trial of the case that the written contract between the parties controlled, and the court adhered to that view in is various rulings.

The last assignment urged here is that the court erred in giving its third instruction, which reads as follows

“I charge you that if the plaintiffs acting in good faith as reasonable men, and upon reasonable observation or inspection, believed that the $1,500 deposited with defendant would be sufficient to pay defendant for the last oar of apples and those remaining undelivered, then there would not be such a breach of contract as would justify or authorize the defendant in treating the contract as rescinded and selling the remaining apples for the account of plaintiff. ’ ’

It is clear that appellees were entitled to recover the balance of the reserve fund left in appellant’s hands unless appellant has sustained damages for a breach of the contract on appellees part. The only issue really in the case is whether or not appellees broke the contract by refusing to pay and whether appellant sustained loss by reason thereof. The verdict of the jury is necessarily a finding against appellant as to any loss sustained by him on account of the improper culling of the fruit by appel-lees or by reason of the sale of the fruit on hand after the alleged breach. Appellant claims to have sold the apples at a price less than his contract price with ap-pellees, but the whole amount of the remainder of the apples at the contract price, amounted to a comparatively small sum in excess of the balance held by appellant in reserve, and it follows that if appellant could "have gotten the contract price by delivering the same to appel-lees under the contract and credited the same on the advance he was not entitled to claim compensation for loss on the sale made at a lower price' to other persons. This instruction, though perhaps erroneous, was harmless, for, as before stated, appellees were entitled to recover the balance of the money held in reserve unless appellant suffered damages which he was entitled to recover on Ms counterclaim.

Our conclusion is that there was no prejudicial error committed, and the judgment should be affirmed. It is so ordered.


author: Wood, J.

text:
    Texarkana & Fort Smith Railway Company v. Adcock.
    Opinion delivered June 6, 1921.
    1. Husband and wipe — wipe suing FOR PERSONAL injuRies. — Under Vernon’s Civ. Stat. of Texas, supplement of 1918, art. 4621a, declaring that all property or moneys received as compensation for personal injuries sustained by the wife shall he her separate property, etc., a married woman may in Texas maintain a separate action for personal injuries.
    2. Venue — action for personal injuries. — An action for personal injuries is transitory and may be brought in a State other than that in. which it arose.
    3. Continuance — cumulative testimony. — It was not error to refuse a continuance on account of a witness suffering from a temporary paralysis of the throat, rendering him unable to speak, where the testimony of such witness would have been cumulative merely.
    4. Appeal and error — instruction—specific objection. — Inaccuracies in the phraseology of an instruction, substantially correct, will not be reviewed where they were not pointed, out by specific objections.
    5. Trial — refusal of requests already covered. — The refusal of requests for instructions already covered by the charge given was not error.
    6. Trial — instruction—specific objection. — The giving of an instruction not in good form is not error where no specific objection was made.
    7. Trial — instruction—weight of evidence. — Though it is proper to charge that the jury are the sole judges of the weight of the evidence and the credibility of the witnesses, it was improper to add that their authority as such was “illimitable, final and unfettered.”
    8. Evidence — determination of preponderance. — In determining the preponderance of the evidence, it is proper for the jury to take into consideration the number of witnesses, but the preponderance is not necessarily in favor of the one who produces the greater number of witnesses to a proposition, as that depends upon the weight which the jury may give to the testimony of the respective witnesses, taking into consideration their interest, relationship, bias, means of information, manner of testifying, etc.

      9. Carriers — opportunity to passenger to alight safely. — It is the duty of a carrier to allow passengers a reasonable opportunity to alight, and, in determining what is á reasonable time, to take into consideration any special condition peculiar to the passenger and to the surroundings at the station and to give a reasonable time under the circumstances.
    Appeal from Miller Circuit Court; Geo. R. Haynie, Judge;
    affirmed.

      James B. McDonough, for appellant.
    1. The court should have directed a verdict for defendant. The injury occurred in Texas, and under its laws damages for personal injuries to the wife are community property for which alone the husband can sue, and the complaint does not state a cause of action. Under the laws of Arkansas defendant never waives the failure of the complaint to state a cause of action. C. & M. Digest, § 1192, and cases cited. The right of plaintiff to recover was raised. As to matters of evidence the law of the former governs. 113 Ark. 265; 142 Id. 159. However, the right of the wife to maintain the suit dé-, pends upon where the injury occurred. 67 Ark. 295; 50 Id. 155; 155 U. S. 190; 98 Ark. 240; 194 U. S. 120; 26 Cyc. 1079. See, also, 79 Fed. 934; 59 N. Y. S. 66; 28 Id. 446; 35 Am. Rep. 705; 39 Kan. 56; 126 Pa. 296. The Texas law governs. 60 Tex. 334; 67 S. W. Rep. 438; 65 Tex. 281; 73 Id. 29; Speer on Married Women, § 227; 223 S. W. 270. The husband alone can sue for personal injury to the wife where the injury occurs in Texas. 79 S. W. 345; 72 Id. 78; 193 Id. 137; 149 Id. 347; 96 Id. 26. Nor can the wife sue for personal injuries in the State of Washington. 182 Pac. 630. The same rule exists in California and Nevada. 108 Pac. 328; lb. 98. The husband alone can sue in Texas. 100 S. W. 791; 124 S. W. 149; 214 S. W. 250.
    2. It was error to overrule the continuance. While a matter of discretion, yet the courts must not abuse their discretion. 100 Ark. 301; 126 Id. 483; 99 Id. 394; 85 Id. 334; 21 Id. 460; 142 Id. 15. A proper case was made and good grounds shown for continuance. .

      3. The court erred in refusing to give instruction 4 for defendant. The carrier was not bound to give personal notice to the passenger that her station had been reached. 134 Ark. 265. The jerk was purely accidental and not due to negligence, and plaintiff can not recover. 129 Ark. 369.
    4. It was error to give plaintiff’s instruction No. 1. A reasonable time was allowed by the carrier for passengers to get off and on trains and a reasonable opportunity was given plaintiff. 128 Ark. 479; and cases cited. 101 Ark. 183-190; lb. 128; 105 Id. 261.
    5. It was error to give plaintiff’s request No. 2.
    6. It was error to give plaintiff’s request No. 3. It gives plaintiff the absolute right to stop anywhere on her journey out and wait until all other persons would come in, without notice to the brakeman. Besides, the instruction comments upon the testimony.
    7. It was error to give plaintiff’s request No. 4. It does not cure the errors in other instructions given.
    8. It was error to give plaintiff’s request No. 5. It does not properly declare the law as to the weight of evidence, and the duty of the jury is to be governed by the preponderance of the evidence. 99 Ark. 69. It comments on the testimony.
    9. It was error to refuse instruction No. 5 asked by defendant. If plaintiff’s detention was due to her own neglect, she can not recover.
    10. It was error to refuse No. 6 for defendant. The evidence shows that plaintiff was extremely rash and negligent in attempting to alight from the train and can not recover. The instruction duly submitted to the jury the question whether or not her injury was due solely to the negligence of defendant or to her own negligence. It was good law.

      J. M. Garter, for appellee.
    There is no error in the instructions, and the verdict is sustained by the evidence. Under the evidence the jury would have been warranted in awarding punitive damages had plaintiff asked them.
   Wood, J.

This action was brought by the appellee against the appellant. The appellee 'alleged that she was a passenger on appellant’s train from Texarkana, Arkansas, to Bloomburg, Texas; that when the appellant stopped its train at Bloomburg for the purpose of allowing the appellee and other passengers to alight, there were standing on its platform other persons who desired to take'passage on that train, and, before the appellee, in the exercise of ordinary care had time to debark, other persons were allowed to board the train in such numbers that appellee thereby was prevented from getting off until the incoming passengers had sufficiently cleared the passage way; that immediately after the passage way was cleared appellee was going down the steps to debark, and the train was put in motion, and the appellee was thrown off her balance. Appellee alleged that the step leading from the coach to the platform was high and dangerous; that the appellant failed to furnish any stool or .step on which to alight .and failed to furnish any one to assist •her in alighting from the coach; that these acts of negligence caused appellee to fall from the coach upon the hard surface of the platform and produced serious personal injuries, which she set forth in detail, to her damage in the sum of $3,000, for which she prayed judgment.

The appellant answered, denying specifically the allegations of negligence, and set up as an affirmative defense contributory negligence on the part of the appellee.

Appellee testified that she and her husband were passengers on appellant’s train as alleged in her complaint, and that when the train stopped at Bloomburg, Texas, they got up to get off, and when they got “to the door people were crowding in so that appellee and her husband could not get out. They started out as quickly as they could. Her husband was ahead of her. She had no baggage except a little hand satchel. Just as soon as they could get out, her husband stepped off, and she started to get off, and the train gave a jerk and threw her backward. She first realized that the train was moving when she made her step. Nobody was there to help her off. There was no stool to step on. She then described her injuries, which it is unnecessary to set forth. Other witnesses corroborated the testimony of the appellee.

There was testimony on behalf of the appellant tending to contradict the testimony introduced on behalf of the appellee. It was shown that a white man by the name of Marshall was brakeman on the train on that occasion; that he was at his place on the platform where the passengers get on and off and had a step stool. Marshall was not present to testify at the trial, and the appellant moved to continue the cause on that account. Appellant alleged that Marshall was present at a former term of the court when the cause by mutual agreement was continued, and that he could not be present at this term because he was afflicted with paralysis which at this time rendered him, and for some time to come, would render him unable to talk; that his testimony was material because the appellant expected to prove by him facts, which it set forth, directly contradicting the testimony of the appellee as to the acts of negligence to which she had testified. Appellant alleged that it thought that if the cause was continued there would be a reasonable chance of either procuring the attendance of the witness, or his deposition.

The motion for continuance was filed December 8, 1920, and accompanying the motion was a certificate of a physician made on December 2, 1920, to the effect that Marshall was affllicted with throat trouble in the nature of paralysis rendering him unable to- talk and that he would not be able to attend court.

The rulings of the court in the giving and refusing prayers for instructions will be considered as we proceed. The trial resulted in a verdict and judgment in favor of the appellee. The appellant by this appeal seeks to reverse the judgment.

1. Appellant contends that the appellee can not maintain this suit since the injury occurred in Texas, and under the laws of that State damages for personal injuries to the wife are community property for which the husband alone can sue. The Legislature of Texas in 1915 enacted the following statute: “All property or money received as compensation for personal injuries sustained by the wife shall be her separate property, except such actual and necessary expenses as may have accumulated against the husband for hospital fees, medical bills, and all other expenses incident to the collection of said compensation.” Art. 4641a of 191.8 Supplement to Vernon’s Texas Civil & Criminal Statutes.

Since the passage of the above act, compensation’ for personal injuries sustained by the wife is no longer community property, and such compensation is now the separate property of the wife. In the absence of a decision of the highest court of Texas holding that under the above statute the husband alone can maintain a suit to recover compensation for personal injuries to his wife, we are constrained to hold that the wife under the above statute should be permitted to maintain a suit in her own name and right. Such would undoubtedly be the proper construction if the injury had occurred in this State under a similar statute, when construed in connection with section 5577 of Crawford & Moses’ Digest. That statute expressly confers upon married women the right to sue and to be sued and to enjoy all rights and to be subject to all the laws as though she were a. femme sole. Learned counsel for. appellant cite us to cases of the court of Civil Appeals of Texas holding that the husband alone can sue for community property, and that damage for personal injuries to the wife are community property. Ainsa v. Moses, 100 S. W. 791; Cone v. Belcher, 124 S. W. 149; Allemania Fire Ins. Co. v. Angear, 214 S. W. 450. But counsel have not directed our attention to any decision of the Court of Civil Appeals of Texas, or of the Supreme Court, since the passage of the above act holding that compensation for personal injuries to the wife is community property, and that the husband alone can sue for the same. Our own research has not discovered a holding of the courts of Texas to that effect. Therefore, we must construe the statute as we believe it should be construed in harmony with our own laws upon the subject. The action is one ex delicto, personal, transitory, and therefore may be brought in this. State. St. L., I. M. & S. Ry. Co. v. Brown, 67 Ark. 295; K. C. So. Ry. Co. v. Ingram, 80 Ark. 269 ; St. L., I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240; St. L. & S. F. Rd. Co. v. Coy, 113 Ark. 265; Hines v. Rice, 142 Ark. 159.

2. Appellant next contends that the court erred in overruling its motion for a continuance. On the allegations of negligence set forth in the complaint the testimony of the absent witness, Marshall, as alleged in the motion for continuance would have been very material, because he was the brakeman who was stationed at the door where passengers got on and off the train and his testimony as set out in the motion directly contradicted the testimony of the appellee and her witnesses, tending to sustain the allegations of negligence set up by the ap-pellee. But, upon careful consideration of the testimony of several other witnesses on behalf of the appellant, we find that their testimony tended to establish the same facts as would have been testified to by the witness Marshall, if present. Marshall’s testimony, therefore, would have been only cumulative, and the rule has been thoroughly established by this court that the trial court can not be reversed for overruling a motion for continuance where the testimony of the absent witness is but cumulative. See Carpenter v. State, 62 Ark. 286; St. L., I. M. & S. Ry. Co. v. Fisher, 80 Ark. 376; A. L. Clark Lumber Co. v. Northcutt, 95 Ark. 291; James v. State, 125 Ark. 269, and other cases collated in 1 Crawford’s. Digest, p. 1023— “Continuance” — 12 (6).

3. The appellant next contends that the court erred in giving and refusing certain prayers for instructions. We have examined the several prayers in the light of the criticisms by the learned counsel for the appellant, and we find that there are some inaccuracies, but they are mere errors of verbiage and do not relate to matters of substance. The attention of the trial court should have been drawn to them by specific objection which was not done. Some of the prayers of the appellant which the court refused were correct, but these were covered by other instructions which the court gave. Instruction No. 5 (set forth in marginal note) was not in good form, and, if specific objection bad been made to it, tbe court should not have given it. Tbe jury are tbe sole judges of the weight of tbe evidence and tbe credibility of witnesses. After thus instructing tbe jury, it was surplusage and wholly unnecessary and improper to ,add by way of accentuation tbe words “illimitable, final and unfettered.”

In determining where tbe preponderance of the evidence lies on tbe facts at issue, it is proper for tbe jury to take into consideration tbe number of witnesses testifying pro and con, but the preponderance is not necessarily in favor of tbe one who produces tbe greater number of witnesses to a proposition. That- depends entirely upon tbe weight or degree of credit which tbe jury may give to the testimony of tbe respective witnesses after taking into consideration all tbe elements or tests by which tbe credibility of witnesses is determined, such as interest, relationship to tbe parties, bias, means of information, manner of witness in testifying, etc. See St. L., I. M. & S. Ry. Co. v. Evans, 99 Ark. 69, 76; Newhouse Mill & Lbr. Co. v. Keller, 103 Ark. 538-547; Martin v. Vaught, 128 Ark. 293. But, while tbe instruction can not be approved as a precedent, it is not erroneous in substance, and, in tbe absence of specific objection, it was not prejudicial error calling for a reversal of tbe judgment.

Tbe charge as a whole was in conformity with tbe law applicable to tbe facts of this record as announced by this court in many decisions, some of them quite recent. In St. L., I. M. & S. Ry. Co. v. Aydelott, 128 Ark. 479, we said: “It is tbe duty of carriers to allow tbeir passengers a reasonable opportunity of getting on and off tbeir trains, and they must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence should be allowed to take. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known, or should be known by its servants, for a passenger to get on or off its trains.” See, also, Payne, v. Thurston, 148 Ark. 456.

The issues of negligence and contributory negligence were submitted under instructions free from prejudicial error. There was evidence to sustain the verdict. The judgment is therefore affirmed. -

       No. 5. It is not the number of witnesses who testify in a case that creates the greatest weight of evidence. One witness may be opposed by many witnesses, and still the jury would be justified in accepting this one witness’ testimony, as against a number of other witnesses, as to how the thing happened, provided you believe his testimony more nearly comports with the truth, and as to whether their testimony or his more nearly comports with the truth you are the sole, illimitable, final, and unfettered judges.


author: Hart, J.

text:
    Vaughan v. Odell & Kleiner.
    Opinion delivered June 6, 1921.
    1. Brokers — question for jury. — In an action by a broker for his commission for procuring a purchaser of timber, which the owner refused to convey to the purchaser procured, held that it was error to direct a verdict for defendants where the evidence would have sustained a verdict for the plaintiff. '
    2. Brokers — right to commission — defense.— Though a contract employing a broker to sell timber stipulated that his commission depended upon the completion of the contract, the owners of the timber can not set up the failure to complete the contract as, a defense to the broker’s claim for his commission where such failure was due to their refusal to carry out the contract by executing a deed to the purchaser.
    3. Estoppel — .preventing performance. — He who prevents a thing from being done shall not avail himself to his own benefit of the nonperformance which he has occasioned.
    Appeal from Arkansas Circuit Court, Northern District; W. B. Sorrells, Judge;
    reversed.

      James E. Hogue and J. E. Ray, for appellant.
    The court erred in directing a verdict for defendants. 78 N. E. 106, 191 Mass. 483, was a different case and does not apply here. See 111 N. E. 37, a case similar to this. 87 Ark. 506 is in point and is decisive of this.

      Where a real estate broker contracts to produce a purchaser who shall actually buy, he has performed his contract by producing one financially able to buy and pay and with whom the owner actually makes an enforci-ble contract, he is entitled to his commission. The failure to carry out the contract, even if the default be that of the purchaser, does not deprive the broker of his right to his commission. 44 L. R. A. 593 and note,.
    The fact that appellant was postponed in his right to receive the commissions until the purchase money was paid could not relieve appellee, of the duty of collecting the money and paying appellant his commissions when collected. By dismissing his suit in chancery to enforce the contract he immediately became liable to appellant for the commissions.
    This case can not be differentiated from Boy sen v. Frinlc, 80 Ark. 254. See, also, Hill v. Jebb, 55 Ark. 574.
    The allegation in the answer that the purchasers procured by appellant were not financially able to carry out their contract and unable to purchase the timber, and did not purcahse it, is, of course, to be treated as denied by appellant. C. & M. Digest, § 1231. On this point appellees held the affirmative of the issue, and the burden was on them, but the evidence shows that the purchasers were financially able to pay for the timber.
    Upon the evidence it was error to direct a verdict for appellees.

      John L. Ingram, for appellees.
    As the timber was never sold and as the -common fund out of which appellees were to receive their fees or pay and appellant his compensation was never created, the judgment is right. Appellant’s interest was in the proceeds of the sale, which was never made, and appellant failed in his part of the undertaking. Walker on Real Estate Agency, § 456; 78 N. E. 196; 81 Ark. 96.
   Hart, J.

T. L. Vaughan brought this suit against Odell & Kleiner in the circuit court to recover a broker’s commission for effecting a sale of certain timber belonging to the defendants.

In the circuit court a verdict was directed for the defendants, and from the judgment rendered upon the verdict the plaintiff has duly prosecuted an appeal to this court.

T. L. Vaughan was a witness for himself. According to his testimony, he made a contract for Odell & Kleiner to sell the timber on a thousand acres of land which they owned in Arkansas County, Ark. They gave him a price of $6 per acre for the timber, and Vaughan was to get all over that price for his commission. Odell & Kleiner did not think that he could get over $7 an acre for the timber. Vaughan sold the thousand acres of timber of Odell & Kleiner to Carver & Bussell of West Plains, Mo., for $8 an acre, and a written contract for the purchase of the timber was duly signed by Carver & Bus-sell, and they deposited $1,000 in a bank at West Plains to guarantee the performance of their contract to purchase the timber. Vaughan then went to Stuttgart and reported to Odell & Kleiner what he had done. They told him that there was another forty acres of timber which was not included in the contract.

The contract was subsequently modified to include the forty acres, and some changes were also made in the time of making some of the payments of the purchase money. The total purchase price under the modified contract was $8>,320, of which $4,000 was to be paid in cash when the deed was signed and of the remainder $2,000 was to be paid in ninety days and $2,320 in four months. It was also agreed that the deposit of $1,000 formerly made in the bank at West Plains should be applied on the first payment. Subsequently Vaughan made a contract to sell the timber for Carver & Bussell to B. B. McIntosh for $11,520. Under this contract McIntosh was to pay the $7,320 due from Carver & Bussell to Odell & Kleiner. When Odell & Kleiner found out that Carver & Bussell had made a contract to sell the timber for more than they had paid for it, they refused to execute a deed to the timber to Carver & Bussell under their other contract. When the •contract was originally entered into between Carver & Bussell and Odell & Kleiner by Vaughan, the latter made an investigation of the solvency of Carver & Russell at the hank in West Plains and found that they were financially able to carry out the contract on their part.

On cross-examination ,Vaughan admitted that he had brought suit against Carver & Russell to recover his commission, and that his complaint in that case states that Carver & Russell “have no property in this State from which the money due herein could be made, except that which comes from the interest which they may have from the property herein described, 'and are wholly insolvent.” Vaughan explained that what he meant by that was that Carver & Russell had no property in this. State, except the timber which they had contracted to purchase from Odell & Kleiner, and which the latter had refused to convey to them.

R. R. McIntosh was a witness for the plaintiff, and testified that he made a contract with Vaughan to purchase the timber in question for $11,520, of this amount he was to pay Odell & Kleiner $7,320 in cash; that he was anxious to buy the timber, and was able to pay for it at the time he entered into a written contract for the purchase of it as above stated.

E. C. Carver was also a witness for the plaintiff. According to this testimony, Odell & Kleiner gave him an extension of time within which to pay for the timber, and, before the extension of time had expired, Vaughan made a contract with R. R. McIntosh for them to. sell him the timber for $11,520. The contract provided that he was to pay for them to Odell & Kleiner $7,320 of this amount. They were prevented from carrying out this contract because Odell & Kleiner refused to convey the timber to them. Subsequently McIntosh purchased the timber from another party for $16,500 and sold it for $19,000.

Some evidence was adduced by the defendants tending to show that Carver & Russell had failed to perform the contract on their part, and that they were unable to carry out their contract for the purchase of the timber without borrowing money with which to pay the pur-abase price. Other evidence tended to show that the contract of purchase bad been abandoned before they made a contract through the plaintiff to sell the timber to E. E. McIntosh.

In this state of the record the court erred in directing a verdict for the defendants. The evidence for the plaintiff warranted the jury in finding for him. According to the evidence adduced in his behalf, he was the agent of the defendants to sell the timber for them, and was to receive as his commission all that he might sell the timber for above $6 per acre. In other words, under the original contract, he sold to Carver & Bus-sell a thousand acres of timber at $8 per acre and under the modified contract he sold them one thousand and forty acres at $8 per acre, amounting in the aggregate to $8,320. He was to have all over $6 per acre that he could get for the timber as his commission. The original contract for the sale of the timber to Carver & Bussell was in writing. Odell & Kleiner made some objections to it because it did not include an additional forty acres of timber which was in the tract they intended to sell. The contract was modified so as to include this tract, and the .modified contract was also in writing. This was a valid and binding contract, and, according to the evidence of the plaintiff, the purchasers were able to complete the contract and were anxious to do so. They were able to pay the purchase money upon the execution and delivery to them of a timber deed, and the defendants refused to execute such a, deed.

It is true that, under the contract between the plaintiff and the defendants, the sale was to be completed and the plaintiff was to receive as his commission any excess over $6 an acre which the defendants might receive for the purchase price of the timber. However, according to the evidence for the plaintiff, the defendants, by their own misconduct in refusing to execute a timber deed to Carver & Bussell, prevented the fulfillment of the contract on their part, and the defendants can not set up their own refusal to carry out the contract by executing a timber deed as a ground of defense to the plaintiff’s claim for his commission.

It is a well settled and sound principle of law that he who prevents a thing from being done shall not avail himself to his own benefit of the nonperformance which he has occasioned. We think tihis rule was recognized by the Supreme Court of Massachusetts in Munroe v. Taylor, 78 N. E. (Mass.) 106. In that case the broker was to receive all over a certain stipulated price as his commission. He sold the land at a price largely in advance of the stipulated amount and entered into a binding contract for the sale of the property. In that case it did not appear that at any time the defendant had refused to make a proper deed of conveyance. It was the plaintiff’s contention that, having found a customer who became bound to buy, his commission had been earned. The court held that he was entitled to a commission only in the event of procuring the consummation of the sale, and not on procuring the execution of a contract of sale which was never performed. He failed to make out his case by not introducing evidence tending to show that the defendant had wrongfully refused to carry out the contract upon his part. This is clearly shown by the concluding part of the opinion. It reads as follows:

“What the plaintiff really undertook was, not only to find a purchaser at a fixed price, but to effect a, sale, which meant a payment of that price, and, this having been done, he would have earned the excess, but, until the consideration became payable, or the defendant refused to convey, he could not demand any remuneration, or maintain an action for breach of the contract.”

The rule was also recognized by this court in Lewis v. Briggs, 81 Ark. 96. In that case the owner of the land was to receive $8,000 net, and the balance of the purchase price was to be paid to the broker as a commission for the sale of the land. The court held that under the terms of the contract the broker did not make out a case for recovery against the owner by showing that he secured a contract with solvent parties to purchase the land. In discussing the question the court said:

“He must under this contract show either that defendants have received some part of the balance of the purchase money to which they were entitled, or that the parties who agreed to purchase were ready, willing and able to perform their part of the contract, and that they were prevented from doing so by the default or failure ■of the defendants to perform their part of the contract.”

In concluding the opinion the court said that under the contract, so long as the purchase price was unpaid, and so long as the defendants were not to blame for its nonpayment, they were not liable. This was a clear recognition of the rule as we have stated it. Upon the principle stated in these cases, the broker might have a ■claim for his services if the sale had failed through the fault of the defendant.

As above stated, in the case at bar, it is fairly in-ferable from the plaintiff’s testimony that Carver & Bus-sell were solvent and were able to carry out the contract on their part, and that they were anxious to do so, but were prevented by the failure of the defendants to execute the timber deed.

It follows that for the error in directing a verdict for the defendants the judgment must be reversed and the cause will be remanded for a new trial.


text:
    Hawkins v. Randolph.
    Opinion delivered June 6, 1921.
    1. Contracts — mental capacity. — The law does not draw any discriminating line by which to determine how great must be the imbecility of mind which will render a contract void, but each case will be found influenced by its own peculiar circumstances.
    2. Mortgages — release showing mental incapacity. — In an action to set aside for mental incapacity a release of a mortgage for $10,000, bearing 6 per cent., executed by an aged and illiterate mortgagee in consideration of the mortgagor’s unsecured undertaking to pay the mortgagee $480 per year during the remainder of his life, evidence held to show the latter’s incapacity.
    3. Contracts — fiduciary relationship. — The rule that transactions between persons connected by fiduciary relations will be closely scrutinized will be applied whenever the relation between parties gives one a controlling influence over the other.

      4. Contracts — inadequacy op consideration. — Where parties are capable of contracting, courts will not set aside their contracts for mere inadequacy of price; but where the inadequacy is accompanied with other facts showing concealment on the part of one who obtains a benefit on account of old age, ignorance, incapacity, etc., on the part of the one granting the benefit, equity will grant relief.
    Appeal from Franklin Chancery Court, Ozark District; J. V. Bourlcmd, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    Robert H. Randolph brought this suit in equity against S. B. Hawkins to annul and set aside a contract whereby the plaintiff released in favor of the defendant, a mortgage on a tract of land to secure an indebtedness of $10,000.
    On the 7th day of July, 1919, R. H. Randolph executed to S. B. Hawkins a deed to 183 acres of land in Franklin County, Arkansas, for the consideration of $12,-500. Of this amount $500 was in cash and the balance in five promissory notes. The first note was for $2,000, ■and the remaining four notes were for $2,500 each. The first note fell due on January 1, 1920, and one each year thereafter. Hawkins gave Randolph a mortgage on the land purchased to secure the payment of these notes. The defendant paid the first note when it fell due, and subsequently the parties entered into a contract as follows:
    “This agreement, made and entered into this 9th day of March, 1920, between S. B. Hawkins, party of the first part and R. H. Randolph, party of the second part, witnesseth, that, in consideration of the release of a certain mortgage dated September 10, 1919, and the return to the said S. B. Hawkins of the notes secured by said mortgage, it is hereby understood, contracted and agreed that the said party of the first part, his heirs and assigns, executors and administrators shall pay unto said R. H. Randolph or his assigns, during the period of his natural life the full sum of four hundred and eighty dollars ($480) each and every year during such life, payable quarterly on the first days of April, July, October and January, beginning on the first day of April, 1920, with the amount of $120 and paying said amount as aforesaid at the beginning of each quarter thereafter so long as said R. H. Randolph shall live-; it being the idea of this contract and the intention of the- parties to- afford said party' of the second part an annuity of $480 for the term of his natural life, payable quarterly in advance, and that at the -time of his death such payments shall cease and no further obligations shall thereafter rest upon the said S. :B. Hawkins by virtue of this contract or the securities surrendered in consideration of this contract.
    “In witness whereof the parties have hereunto set their hands this 9th day of March, 19201. ’ ’
    Pursuant to the terms of the contract, Randolph oh the same day executed a release deed to Hawkins to the property described in the mortgage. The object of this suit is to cancel the contract and the release deed executed by Randolph to Hawkins.
    R. H. Randolph was a witness for himself. According to his testimony, he resided on his land in Franklin County, Ark., but transacted his business at Mulberry, in Crawford County, Ark. For many years he had-transacted' his business with a bank at that place of which S. B. Hawkins was the cashier. Randolph was an uneducated man and could not read or write, except to sign his name. Hawkins had acted as his confidential' adviser for about thirty years. Randolph was a widower without children and was about eighty years of age when he conveyed his land to Hawkins and took a mortgage back to secure the payment of the purchase money. The contract which is the basis of this lawsuit was written by the attorney of Hawkins in a back room of his bank. The lawyer commenced to read the contract to Randolph and Hawkins took it from him saying that the contract was all right, and that it was not necessary to read it over to Randolph. Randolph was just getting over a case of influenza and did not recollect signing the release deed. Hawkins gave Randolph a certificate on the bank for $120 on April 1, 1920, Subsequently he mailed Ran-dolpli a quarterly payment for a similar amount. Randolph. then began to' realize what had been done and sent the money back to Hawkins.
    On cross-examination Randolph admitted that he had attended to his own affairs all of his life and felt that he was competent to do so* when at himself. He stated that he was sick when the contract in question was executed. He admitted that he boarded with Jack Underwood in March, 1920, bnt denied telling him that he wanted to sell-his land for the reason that the road and other taxes were eating it np. He denied telling Underwood that he would like to turn his mortgage over to some one and draw $40 a month on it like he (Underwood) was doing with the government. Randolph farther stated that as soon as Mr. Chew explained the meaning of the contract to him he immediately authorized him to bring this suit.
    The defendant, S. B. Hawkins, was a witness for himself. He admitted having known Randolph for thirty years, and that he had bought the land from him at the time and on the terms described above. In March, 1920, Randolph came to Hawkins and wanted him to pay him a pension. Randolph called it a pension. He reminded Hawkins that he had sold the land to Stewart, and that ‘the mortgage would be in the way. Randolph wanted to release the mortgage so that Hawkins could go on with his trade. Hawldns wrote for his attorney to come down, and on the next day the attorney came to town and the 'Contract in question was executed. Hawkins asked Randolph how much he wanted, and Randolph said that he would have to have $440 per year. Hawkins replied, “ That is all right. If that will keep you comfortable. It is all right with me. ’ ’ The attorney prepared the papers and they were signed in duplicate the next day. After he had acknowledged the release deed, Randolph said, “You ought to have this recorded.” Hawkins replied that he would mail it right away. Randolph then said, “No, that is a valuable paper, it might miscarry or get lost in the mail. You ought to send it by some one.” Hawkins said, “All right, I will send it by my son and have it recorded, ’ ’ and he did so. Randolph came to Haw-ldns a few days later, and said he ought to have $480 a year. Hawldns said, “All right, Uncle Bob, if yon need $480, we will malee it $480.” Hawldns then took both copies and changed them to read $480 per year. On the first day of April, 1920, Hawkins placed $120 to Randolph’s credit and Randolph seemed satisfied. On July 1, 1920, Hawldns mailed him a check for $120 and Randolph returned it. When they first talked about the contract in question, Randolph told Hawkins that the taxes were eating him up, and the people were wanting him to invest his money.
    C. R. Starbird, the attorney for Hawkins, said that when he first got to the bank, Randolph was there waiting for him. Hawldns introduced them and sent them into the back room to fix up the business. From the way Randolph commenced talking, Starbird thought that he wanted to make a will. Randolph replied that he did not want to make a will, but that Hawkins was to give him a pension. He told Starbird that he wanted one just like Uncle Jack Underwood was drawing. Starbird then asked him what amount the pension was to be, and Randolph said that they had not yet agreed on the amount. Hawldns was called into the room, and Starbird told him that they would have to agree on the amount. Hawkins said, “Uncle Bob, tell us how much you want?” Randolph said that he thought about $440 a year. Hawkins said that is all right and left the room. Starbird then took a memorandum of the contract and prepared it at his office and. then mailed it to Hawkins.
    According to the testimony of Jack Underwo'od, Randolph was boarding at his house and told him that a new road was being built past his place, and that he had sold his land to get rid of the taxes which were eating it up. He stated further that he had a mortgage for $10,000 on his land and that the taxes would eat that up. That he wished some one Would take that and give him a pension like he (Underwood) was drawing. Underwood then suggested that he should talk with Hawkins about it, and Randolph said that he would go .right up and see Hawkins about it. A few days later Randolph told Underwood about the execution of the contract in question.
    Mrs. Jack Underwood testified that she heard Randolph tell her husband that the taxes were eating him up and that he wished he could arrange to have some one pay him a pension just like her husband drew from the government and that he would turn over his $10,000 mortgage for it. Subsequently she heard Randolph tell her husband that he had drawn his pension.
    Mrs. Bettie Conatser testified that Randolph told her that he had released the mortgage which Hawkins had given him, and that Hawkins had agreed to pay him $40 a month as long as he lived.
    A physician who treated Randolph for influenza in March, 1920, testified that he could not see that Randolph’s mind, was affected by the disease.
    An employee of the bank of which Hawkins was the cashier took Randolph’s acknowledgment to' the release deed and corroborated Hawkins as to- what took place when the contract and deed were executed.
    The chancellor found in favor of the plaintiff, and it was decreed that the contract of March 9, 1920, should be canceled, and that the release deed should also be canceled.
    It was further decreed that the mortgage on the land and the four notes given by Hawkins to Randolph in payment of the land should be in full force and effect. The defendant Hawkins has duly prosecuted an appeal to this court.

      Evans & Evans, J. P. Clayton and Starbird & Star-bird, for appellant.
    ■ 1. It is contended that the release of the mortgage by appellee and the contract were not really agreed to by appellee, but his signaure was abtained by fraud and false representations. This is denied by appellant. It is also contend that, by reason of age, sickness and mental infirmities, appellee was incompetent to malee the contract entered into and the release executed by him. Appellant resists these contentions upon the facts proved. The evidence is not clear, cogent nor convincing, so as to satisfy the mind beyond reasonable doubt. 71 Ark. 615; 82 Id. 569; 96 Id. 564-6; 130 Ark. 312-22; 132 Id. 227-36. The testimony of interested parties is insufficient to overthrow the presumptions which the law throws around written instruments. 96 Ark. 564.
    2. This was an executed contract. An accord and satisfaction for less than the amount due is .good, if executed. 44 Ark. 252-4; 70 Id. 215-20. An executed release is good without any consideration. 44 Ark. 252. The receipt of part of a debt not yet due in satisfaction of the whole is a sufficient consideration, even if the contract is executory. 70 Ark. 215; 33 Id. 572; 6 it. C. L., § 74, p. 666; 46 So. Rep. 598. From these cases it follows that inadequacy of consideration is no defense to an executed contract. 23 Ark. 735-8; 129 Id. 377; 86 Id. 464; 99 Id. 238-241; 117 Id. 552.
    The conveyance of one’s land to another upon an agreement of support for the life of the grantor is a good contract upon adequate consideration. This was Randolph’s object and intention. Great age alone is no defense. 119 Ark. 466. The decree of the chancellor is clearly against the preponderance of the evidence.

      Sam R. Chew, for appellee.
    1. No sufficient abstract was filed under rule 9 and the decree should be affirmed.
    2. Inadequacy of price paid for land, though not controlling, is a circumstance to be given due weight in cases of this kind. The facts condemn this pretended contract as improvident, and appellee, being non compos and down and out with senile dementia, the contract was void. The pretended contract and release is tainted with fraud and void. Bispham on Equity Jur. (4 ed.), § 219; 38 Ark. 433; 40 Id. 28. Improper influence and undue influence were shown and relief was properly given. 26 Ark. 28. Where one, through age, infirmity and decrepitude or disease, is incapacitated from managing his affairs, an unreasonable or improvident disposition of all bis property will be set aside in equity. 84 Ark. 490. Tbis case is on all-fours with the present case. The decree below is responsive to the law and the facts. After bearing all the testimony, the chancellor found for appellee, and the decree is sustained by a clear preponderance of all the evidence.
   Hart, J.

(after stating the facts). We think the decision of the chancellor was correct. In. the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, the court recognized that the law does not seem to have attempted to draw any discriminating’ line by which to determine how great must be the imbecility of mind to render a contract void; or how much intellect must remain to uphold it. The reason that no exact general rule as to incapacity to contract can be laid down is because each case will be found influenced by its own peculiar' circumstances. In discussing the subject the court said:

“While the solemn contracts between men should never be disturbed on slight grounds; yet it may, perhaps, be assumed, as a safe general rule, that, whenever a person through age, decrepitude, affliction, or disease, becomes imbecile, and incapable of managing his affairs, an unreasonable or improvident disposition of his property will be set aside in a court of chancery. In re James Barker, 2 Johns. Ch. Rep. 232. * * *

“If a contract is freely and understanding^ executed, by a party, with a full knowledge of his rights, and of the consequences of the act, it must stand. This court disclaims all jurisdiction to interfere on account of the improvidence or folly of an act done by a person of sound though impaired mind. But, on the other hand, contracts have been set aside and canceled, when want of consideration, or the improvident nature of the transaction has raised the presumption that fraud and misrepresentations were employed. Shelf or d on Lunacy, 267. "When a gift is disproportionate to the means of the giver) and the giver is a person of weak mind, of easy temper, yielding disposition, liable to be imposed on, the court will look upon such gift with a jealous eye? and strictly examine the conduct and behavior of the person in whose favor it is made, and if it can discover that any •acts or stratagems, or any undue means have been used, to procure such gifts; if it see the least speck of imposition, or that the donor is in such a situation with respect to the donee as may naturally .give him an undue influence over him; in a word, if there be the least scintilla of fraud, a court of equity will interpose.” (Citing cases.)

The court has continued to recognize this as the general rule since that time. Campbell v. Lux, 146 Ark. 397, and Nelson v. Murray, 145 Ark. 247. In the • application of the doctrine to the facts of the present case it may be said that the evidence shows that Randolph freely and willingly entered into the contract in question and executed the deed of release to the mortgage ; but his action, measured as it must be, by the testimony of the witnesses as to the circumstances surrounding the transaction, does not show that intelligent participation characteristic of one who understands what he is doing and comprehends the nature of his act.

The evidence shows that Randolph and Hawkins had lived on the terms of the closest friendship for thirty years, and that Randolnh alwavs advised, with Hawkins in regard to his affairs. He had full confidence in his judgment and integrity. He was an uneducated man and usually followed the advice of Hawkins in all his business transactions. Courts regard with a jealous eye transactions between persons connected by fiduciary relations. The principle is not confined to technical cases of fiduciary relationship. It is applicable to all cases where the relation between the parties gives one the controlling influence over the other.

It is true that, where the parties are capable of contracting, courts will not set aside their contracts for mere inadequacy of price, but where the inadequacy is accompanied with other facts showing concealment on the part of the one who obtains a benefit on account of old age, ignorance, incapacity, etc., on the part of the one granting the benefit, courts of equity will readily grant relief.

The direct testimony of the witnesses, standing alone, shows that Randolph had always been capable of attending to his own affairs, and that he still had intellect enough to make a disposition of his property, but his situation and the surrounding circumstances are proper to be taken into consideration in determining whether á court of equity should interpose. Randolph was over eighty years of age, and was an ignorant person, unable to read or write. Hawkins had. been his confidential adviser for thirty years. Randolph had already sold him his farm and had taken a mortgage back to secure most of the purchase price. His fears about the taxes eating up his lands were groundless; for after the sale he had nothing to do with paying the taxes on the land. Hawkins owed Randolph $10,000, which was secured by a mortgage on the farm. Randolph exchanged this secured indebtedness which bore interest at the rate of six per cent, per annum for an agreement on the part of Hawkins to pay him an amount annually which would be less than the interest. The only benefit that he could possibly derive was to receive this pa3unent- quarterly instead of annually. "While his mortgage was taxable, there is nothing to show that exorbitant taxes were about to be assessed against it.

The whole substance of the transaction was to give up a secured debt of $10.000. bearing interest at six uer cent, per annum, for an unsecured debt of $¿R0 annuallv for the rest of his life. If Randolph bqd lived twentv years longer, which is altogether improbable, these small payments would net have consumed the principal, numb less the interest. The interest would hav® amounted to '$600 per annum as against $4-30 under the new contract. It is evident that Randolph thought that he was getting a pension, and that Hawkins knew that he thought so. This fact is shown, not onlv bv the testimony of Hawkins . himself, but by the testimony of the witnesses introduced by him..- Now a pension is a regalar allowance paid to, an individual by tbe government in consideration of past services, or in recognition of merit. Tbe whole resources of tbe government are pledged to tbe payment of pensions. Here, as we have already seen, Randolph already bad tbe obligation of Hawkins to pay him $10,000 with six per cent, interest per annum, and in addition this obligation on tbe part of Hawkins was secured by a mortgage on tbe land. Randolph exchanged this for the unsecured promise of Hawkins to pay $480 per annum as long as be lived.

Tbe record shows that the amount promised was no more than sufficient to support Randolph in bis old age if be continued in reasonable health. If be became sick ■and bis expenses thereby materially increased, it will be readily seen that be bad deprived himself of tbe means of being supported and cared for in that condition, while if be bad retained bis property be would have bad ample means for that purpose. It is just such conditions 'and situations as this that equity scrutinizes closely and always interposes to grant relief.

It follows that tbe decree will be affirmed.


author: Smith, J.

text:
    Taylor v. Walker.
    Opinion delivered June 6, 1921.
    1. FIXTURES — landlord and tenant. — Parts ,of a ginning plant attached to the realty hy a tenant under an agreement with his landlord that they should he removed upon expiration of the tenancy did not become part of the real estate.
    2. Appeal and error — refusal of instructions. — Refusal of certain requested instructions will not be held error, in the absence of a showing that, in so far as they stated the law correctly, they were not covered hy instructions given.
    3. Appeal and error — objections waived. — Where counsel urge no objections in their brief to instructions given by the court, any objections to them will be waived.
    4. Replevin — verdict in solido. — It was not error to permit the jury in a replevin case to return a verdict in solido for the value of several articles if no objection was raised to the court’s direction to return such a verdict until the jury had returned its verdict, although the jury had not then been discharged, where the parties in their testimony treated the property in dispute as a single unit of value.
    5. Replevin — waiver op separate valuation. — The statute requiring .the separate valuation of each specific article replevied (Crawford & Moses’ Digest, § 8653) may he waived and will be held to be waived where the property replevied is treated as parts of a single unit.
    Appeal from St. Francis Circuit Court; J. M. Jackson, Judge;
    affirmed.

      R. J. Williams and Walter Gorman, for appellant.
    A verdict should have been directed for Mrs. Taylor, as the property had become part of the realty and not subject to replevin, and the court erred in its instructions and in refusing those asked by defendant, Nos. 1 to 11. 11B. C. L. 1071. The instructions are inconsistent with the law and with each other. 9 L. B. A,, 700 and notes.

      Mann & Mann, for appellee.
    The instructions state that the law, and the verdict is sustained by the evidence. The different phases of the rights of the parties as to the removal of trade fixtures from the premises were properly presented by the instructions. 19 Cyc. 1067; 53 Ark. 526. Appellant has failed to specifically point out any error in the rulings of the court.
   Smith, J.

This is a suit in replevin for various parts of a system gin plant. The litigation arose in the following manner: Appellant, Mrs. Taylor, owned a plantation, which she leased to the Beck Company, a corporation, for a term of five years. This lease was dated August 4, 1906, and covered the five-year period beginning January 1, 1907. On May 7, 1908, a second lease was executed for a five-year period, beginning at the expiration of the first lease. Each lease included “the steam gin and sawmill, together with all buildings of every kind” being on the land. These leases were transferred by the Beck Company to George P. Walker on January 8, 1909.

Bp "or - tho term'nation of the last lease, a disagreement arose between Mrs. Taylor and Walker, chiefly over delay in payment of rent, and she served notice on him to vacate. He vacated the premises, but left the gin honse locked and refused to surrender the key. Thereupon Mrs. Taylor put another lock on the gin house. She refused, on demand, to surrender certain pumps, belts, pulleys, gins, presses and other fixtures, whereupon Walker brought replevin therefor. This suit was commenced September 21, 1915.

It was shown on behalf of Walker that the old gin house was in a dilapidated and dangerous condition, and the gin was moved across the road into a new building. According to Walker, it was not only agreed that he should retain ownership and control of any new machinery installed by him. but it was also agreed that he should have the right to remove the building at the expiration of his lease if he desired to do so. In erecting the new plant, Walker used the old engine and certain shafting and a fan belonging to the old plant. All other parts were new.

At the trial testimony was offered as to the value' of these new parts as a unit comprising a ginning plant and the usable value thereof. The jury returned into court the following verdict: “We, the jury, find for the plaintiff for the possession of the property, and fix the value at $650, and find a fair rental value- of said property to ■ be $300 for the five years said property was held by the defendant.”

After the verdict had been read, but before the jury had been discharged, counsel for Mrs. Taylor objected to its form, for the reason that it did not specify the separate value of the various parts of the gin which had been replevied.

It is insisted that a verdict should have been directed in Mrs. Taylor’s favor, upon the ground that the property replevied had become a part of the real estate and was not, therefore, the subject of replevin. Without a full recitation of the testimony on this issue, it suffices to say that, according to the testimony which tends to support the verdict, Walker was unable to operate the gin on account of its age and condition, whereupon it was agreed that he might install such new. parts as were necessary, with the privilege of removing them upon the expiration of his tenancy. Under this agreement the new parts of the ginning plant did not become a part of the real estate, but remained the lessee’s personal property, and were therefore subject to a suit in replevin. Buffalo Zinc & Copper Co. v. Hale, 136 Ark; 10; Cameron v. Robbins, 141 Ark. 607; Vanhoozer v. Gattis, 139 Ark. 390; Heim v. Broch, 133 Ark. 593; Bache v. Central C. & C. Co., 127 Ark. 397.

At the trial from which this appeal comes, instructions numbered from 1 to 11 were asked in Mrs. Taylor’s behalf, but none were given, and counsel complain .of this refusal. It is not shown, however, that these instructions. in so fan as thev cornectlv declare the law, were not covered by other instructions which were given.

Complaint is also made that the court erred in giving instructions, but no, error is pointed out in the instructions given. Reed v. State, 103 Ark. 391; Bass v. Starnes, 108 Ark. 357.

It is finally insisted that the jury was permitted to return a verdict in solido. This point .appears, however, not to have been raised until the jury had returned its verdict, although the jury had not then been discharged.

It appears that the cause was tried upon the theory that the various articles replevied constituted a single unit of value, and the testimony on both sides related to the value of the property as a whole. The request that the articles be separately valued could not have been comnlied with bv the iury even if the request had been made when the jury first retired to consider of its verdict, because, as has been said, each side had treated the property in dispute as a single unit of value.

The statute does provide (section 8653, C. & M. Digest) for fixing the value of each specific article replev-ied ; but this requirement is not jurisdictional. It may be waived. Hobbs v. Clark, 53 Ark. 411; Heal v. Cole, 144 Ark. 547. And will be held to be waived in a case where, as in this, the property replevied is treated as parts of a single nnit.

It is also objected that the verdict returned included the usable value, not only of the property replevied, but of other property used in connection with it owned by Mrs. Taylor. It is not made to appear, however, that such is the case. It is true that property owned by her was used in connection with other property owned by Walker, and that it took all of the property to make a complete gin plant. But there was no question in the case about what property was owned by her, or what parts of the plant had been installed by Walker, and no objection appears to have been made that the testimony in regard to usable value was not confined to the parts installed by Walker.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Road Improvement District No. 9 v. Bennett.
    Opinion delivered June 6, 1921.
    Highways — authority to set aside whole assessment. — Acts Special Session 1920, No. 407, § 9, relating to Improvement District No. 9 oí Sevier County, did not authorize the circuit court, on appeal from the county court, to set aside the whole assessment of benefits to pay for constructing the road, hut provided a method for attacking assessments of benefits against particular tracts of land; section 7 providing a method of attacking the whole assessment of benefits in the chancery court.
    Appeal from Sevier Circuit Court; James 8. Steel, Judge;
    reversed.

      Lake & Lake, for appellant.
    1. The circuit court had no jurisdiction on appeal to set aside the judgment of the county court levying assessments of benefits under act No. 407, Acts 1920, § 9.
    2. The judgment of the circuit court is not supported by the evidence. 139 Ark. 322. This case disposes of every contention made that the lands in zone 4 should not be taxed because not benefited. 139 Ark. 155; 133 Id. 118. Every question raised by complainants has been settled by this court adversely to complainants.

      E. K. Edwards and B. E. Isbell, for appellees.
    The appeal should be dismissed. The situation and condition of the parties litigant has become so changed since the institution of this suit that this court can give no relief. 97 Ark. 372; 76 Id. 424; 73 Id. 194; 55 Id. 633; 78 Id. 388; 92 Id. 81; 113 Id. 26; 132 Id. 462; lb. 469. See, also, C. & M. Digest, § 2162.-
    The repeal of the act creating the district has destroyed the legal entity of appellant district. Appellant has no legal standing in any court. 78 Ark. 388; 92 Id. 81; 141 Ark. 301.
    This court will not decide questions which have ceased to be an issue. 132 Ark. 469; 113 Ark. 26. The act was repealed, and the repealing act provides for winding up the affairs of the district and liquidating its indebtedness. There are no outstanding bonds at the time of trial, and the issue of any certificates of indebtedness was sustained, and the appeal should be dismissed.
   Humphreys, J.

This is an appeal from the judgment of the Sevier Circuit Court, setting aside a judgment of the county court levying an assessment of benefits to pay for constructing a road in Road Improvement District No. 9 of Sevier County. Appellees, four landowners in said district, prosecuted the appeal from the judgment of the county court under section 9 of act No. 407 of the special session of 1920 of the General Assembly of-the State of Arkansas, creating the district. The issue tried and determined in the circuit court on appeal related to the assessment as a whole, and the issue as to the validity or invalidity of the individual assessments made upon the lands of appellees was not developed or determined. Section 9 of said special act, under which the appeal was taken, did not confer upon the circuit court power on appeal to set aside the whole assessment. It only provided a method for attacking, on appeal to the circuit court, assessments of benefits against particular tracts' of land for good cause shown by the property owner, or owners, of the particular tract or tracts. This construction must be given section 9 of the act' aforesaid, because section 7 of the same special act provides a method for attacking the whole assessment of benefits in the chancery court of said county. If both sections provide a method for attacking the assessment of benefits as a whole, there is wanting in the act any remedy or redress for unjust or inequitable assessments of benefits against individual tracts of land, since section 7 of said act provides in unmistakable terms for a remedy or reuress against an unjust or inequitable assessment as a whole by suit in the chancery court. The conclusion is irresistible, that the remedy, or redress provided in section 9, has relation to redress for unjust or inequitable assessments of benefits against particular tracts of land, for it is quite unlikely that the Legislature would give two remedies for correcting unjust or inequitable assessments as a whole and no remedy for correcting individual ' assessments. The circuit court was, therefore, without jurisdiction to set aside the entire assessment of benefits in the district, and should have limited the inquiry to the validity of the assessments against the particular tracts of land owned by the appellees herein.

Appellees insist, however, that this cause should be dismissed, and have filed a motion for that purpose, because, during the pendency of the appeal here, the General Assembly of this State passed an act repealing the special or local act by which the district in question was created. The repealing act bears No. 291 and was approved March 21, 1921. Section 1 of the repealing act is as follows

“That act No. 407 of the General Assembly, approved February 20, 1920, entitled ‘An Act to Create Road Improvement District No. 9 of Sevier County,’ be and the same is hereby repealed.”

Section 2 of the repealing act provides, among other things, for a continuation of the district and the commissioners thereof for the purpose of paying the indebtedness thereof. Said section, in part, is as follows: “On the expiration of said six months, (referring to the time in which claims against the district may be presented to the commissioners] it shall be the duty of the commissioners to levy upon the real property of the district a tax sufficient to pay the indebtedness thereof. If the assessment of benefits of the district has been made and confirmed, said tax shall be based upon such assessment of benefits. If the assessment of benefits has not been made 'and confirmed, it shall be by the assessed value of the property for State and county taxation as it appears upon the county assessment.” The insistence of appellant is that the repealing statute, approved March 21, 1921, is void, because it impaired the obligation of contracts, and, in that respect, infringes upon both the Constitution of the State and of the United States. So far as the issue involved on this appeal is concerned, it is unnecessary to determine whether the repealing act is valid or void. The issue here is whether the circuit court had jurisdiction on appeal to set the judgment of the county court, levying the assessments of benefits against the property in the district, aside in whole. It follows, from our conclusion that it did not, that the levy of assessment of benefits as a whole must stand, whether the repealing act be valid or void. If the repealing act is void, the judgment, levying the assessment .of benefits, will stand as a whole under- the original act creating the district, because not attacked by suit - in the chancery court under section 7 of the original act. If the repealing act is valid, the act Itself provides for a continuation of the district for the purpose of paying the indebtedness thereof and authorizes the commissioners to base the assessment of benefits upon the confirmed assessment of benefits levied under the judgment of the county court. It not being necessary to pass upon the validity of the repealing act, we withhold any opinion as to what might be deemed valid claims against the district within the meaning .of claims, as used in section 2 of the repealing act.

The motion of appellees to dismiss the appeal is therefore overruled, 'and, for the error indicated, the judgment of the circuit court is reversed and the cause remanded for further proceedings.