author: Smith, J.

text:
    Patterson v. Rogers.
    Opinion delivered April 11, 1921.
    1. Contracts — restraint op trade. — Contracts in partial restraint of trade will be upheld unless they result in the creation of a monopoly.
    2. Good will — contract not to engage in business. — An agreement by the seller of a business not to engage therein, in order to be enforced, must be definite and certain as to the extent to which trade or business is restrained, so that it may appear to what extent the rights of the public have been infringed.
    3. Good will — sale op business. — One who sells his business with its good will must in good faith do nothing which directly tends to deprive his purchaser of the benefits and advantages of the purchase.
    4. Good will — sale op business — effect.—An agreement not to engage in the same business is not to be implied from mere sale of the business with its good will or from loose expressions of the seller during the negotiations for the sale indicating a purpose not to re-engage in the business he is selling.
    5. Good will — sale—right to re-enter business. — Where the purchasers of a milling business saw fit to rely on general expressions of the seller as to his intention not to re-engage in the business, without providing therefor in the written contract, they will be held to have taken the chance that the seller might later change his plans, in which event he would not be precluded from reentering business.
    Appeal from Benton Chancery Court; B. F. McMa-han, Chancellor;
    affirmed.

      Rice & Rice and J. W. Nance, for appellants;.
    ■There was no written contract regarding the salé'óf the property, good will and established business,, and the-court erred in its findings. Nor was there any oral.agreement on these points. Appellants certáinly understood that Rogers was selling .them, not only the property, but all that was inseparably connected with it — the good will and the long-established business, in the community. 9 Cyc. 246. There was a partial failure of consideration, and the chancellor erred in dismissing appellant’s cross-bill. 62 Ark 101; 91 Id. 367 ; 95 Id. 387. The contract was reasonable and enforceable and not void as against public policy.' 112 Ark. 126; 9 Cyc. 738; 23 Ark. 196; 18-A. & E. Ann. Cases 433.

      Duty & Duty and McGill & McGill, for appellee.'
    1. As the good will existed only in connection'with the business, it is presumed it passed with the- other assets sold, unless expressly reserved. 12. R. C. L. 985. While contracts in general restraint of trade are invalid as against public policy, contracts ancillary to the sale of a business are valid and enforceable. 127 Ark. 590; 5 Id. 318; 6 R. C. L. 786; 112 Ark. 126. The question whether appellant had the right to go back in the milling business in Rogers is involved. 12 R. C. L. 990; 60 Penn. St. 458; 100 A. D. 584. The good will passed with the other assets, unless expressly reserved. 12 R. C. L. 985. While contracts in general restraint of trade are invalid, yet contracts that are ancillary to the sale of a business and the good will thereof, with proper restrictions as to time and place, are valid and enforceable. 127 Ark. 590; 112 Id. 126; 6 R. C. L. 786. While the rule is, in some jurisdictions, that one who sells the good will of his business is precluded from setting up a competing business, the general rule is that, in the absence of an express covenant, there is nothing to prevent the seller from re-establishing in the same business, provided he does nothing to injure the good disposition of the public toward the old place of business, or impair any of the advantages which the purchaser has acquired by the purchase of the good will of the old customers in the vicinity. 12 R. C. L. 988. See, also, note to Ann. Cases 1914 B 587; 29 Id. 582 and note; 118 Md, 29.
    2. The contention that the mill property was sold for $7,000 and the good will for $3,000 is not supported by the evidence;
    3. The measure of damages is the injury which the buyer has sustained. There can be no recovery, in the absence of evidence showing that the good will of the business was injured by defendant’s wrongful act. 12 R. C. L. 996-7; 20 Oye. 1282-3 ; 131 La. 204; Ann. Cases 1914 A and note; 92 S. W. 1104; 108 Ala. 451; 42 Ohio St. 474; 54 Am. St. 177; 112 Ark. 126.
    There was no testimony that any actual damages had been suffered by appellants.
    4. The testimony fails to show that Rogers was inspired by ill-will or intended to breach the contract. The evidence shows that appellants made a splendid trade, and there is no error in the findings and decree.
   Smith, J.

W. J. Rogers operated a general milling business in the city of Rogers under the name of the Rogers Milling Company. He sold the property, good will and business to R. B. Patterson and three associates, who are the appellants here. The sale was made July 18, 1918, for the consideration of $10,500, of which sum $2,500 was cash in hand paid. The balance was evidenced by a note due one year after date, bearing eight per cent, interest. A payment of $1,000 was made on the note on January 2, 1919, and on August 1, 1919, an additional payment of $5,000 was made. This suit was brought at law to collect the balance, but on motion was transferred to equity.

The execution of the note was admitted, but, by way of defense, it was alleged that Rogers was a successful and experienced miller, and his plant had an established good will and business, and a part of the consideration for the note sued on was an oral agreement by Rogers not to build or operate, or to become interested in the building or operation of, another mill in the city of Rogers, and that the good will of the business and the agreement on the part of Rogers not to re-enter the milling business were worth $3,500; that Rogers, in violation of his agreement, had erected another mill and was engaged in operating the same and transacting a general milling business, to the injury of the defendants in the sum of $3,500; and there was a prayer for judgment in accordance with these allegations.

Rogers testified in his own behalf, and denied that there had been any agreement on his part not to re-enter the milling business in Rogers. He stated that he went to Colorado for his health, and after a year’s absence returned and re-entered the milling business.

John Putnam was one of the four who formed the copartnership for the purchase of the mill and who signed the note sued on. Putnam conducted the negotiations leading up to the purchase, and was the principal witness for the defendants. He stated he understood the mill had cost about $7,000, and he told Rogers $10,500 was too much for the property; but Rogers insisted that the price was reasonable, as the mill was running in good shape and had a good business. Putnam further testified that Rogers stated his physician had advised him to go West for his health, and that he was forever through with public business if he could sell his mill. This witness repeated these representations to his associates, all of whom: testified that they were induced to buy by reason of the fact that they were getting the mill with its good will and business, and that they proceeded on the assumption that they would have no competition in business, at least none from Rogers.

This court has in more than one case upheld contracts in partial restraint of trade; but in doing so we have recognized that the contract is of such character that the rights of the public may be involved; and where the contract results in the creation of a monopoly, it is void as contrary to public policy. Wakenight v. Spear & Rogers, 147 Ark. 342; Shapard v. Lesser, 127 Ark. 590.

The courts, therefore, require that such contracts be definite and certain , as to the extent to which trade or business is restrained, so that it may appear to what extent the rights of the public have been infringed before lending aid to their enforcement.

The Supreme Court of Pennsylvania in Hall's Appeal, 60 Pa. St. 458, a case in which one undertaker had bought the business of another, including the good will of the business, said: “As the alleged agreement is in restraint of trade, its existence should be established by clear and satisfactory evidence in order to justify the court in restraining its breach by injunction. There should be no doubt or uncertainty in regard to its terms, or the consideration upon which it was founded.”

. One who sells his business with its good will must in good faith do nothing which directly tends to deprive his purchaser of the benefits and advantages of the purchase. But it is said in the note to the case of Brown v. Benzinger, 84 Atl. 79, A. & E. Ann. Cas. 1914 B 582, that the rule is well settled that the vendor of the good will of a business may, in the absence of a restrictive agreement, engage in a competing business. Cases are there collected supporting the text of the note.

The reasons generally assigned for the rule are that it is quite usual for one to sell his business, while agreements not to engage in the same business are exceptional; and, as such agreements result in at least a partial restraint of trade, they are not to be implied from the mere sale of the business with its good will or from loose expressions of the seller during the negotiations for the sale indicating a purpose not to re-engage in the business he is selling. The rule, as stated in 12 R. C. L. 988, is as follows: “But the more generally accepted doctrine is that, in the absence of an express covenant, there is. nothing to prevent him from re-establishing himself in the same business, provided he does nothing to injure the good disposition of the public toward the old place of business, or to impair any of the advantages which the purchaser has properly acquired by the purchase of the good will of the old customers in the same vicinity. ’ ’

Appellee was not asked to agree not to re-enter the milling business in Bogers as a condition upon which the purchase would be made; nor is it contended that he agreed not to go into business again. There is no allegation or proof of fraud. After selling the mill Bogers did go West, as he had said he intended to do, where he remained for about a year. The purchasers saw fit to rely on general expressions by the vendor as to his future intentions, without incorporating those statements into the contract of sale, and they must therefore be held to have taken the chance that the seller might later change his plans, in which event he would not be precluded from re-entering business, as he did not so expressly agree.

It follows that, while Bogers has no right to do anything which would impair the value of the business, and the good will thereof, sold by him to appellants, he did not bind himself not to re-enter the milling business, and his act in doing so can not, therefore, be the subject-matter of an action for damages, and the decree of the court below is therefore affirmed.


source: Caselaw Access Project

author: Smith, J. Humphreys, J.

license: Public Domain

text:
    American Railway Express Company v. Mackley.
    Opinion delivered April 11, 1921.
    1. Appeal and error — conclusiveness op verdict. — In a case of conflicting evidence, the jury’s verdict in favor of the plaintiff must be accepted as true on appeal.
    2. Master and servant — liability for servant’s act. — The test of a master’s liability for the act of a servant is, not whether a given act is done during the existence of the servant’s employment, but whether it was committed in the prosecution of the master’s business.
    3. Master and servant — liability for Killing by servant.— Where, in a dispute concerning a shipment, plaintiff accused defendant express company’s driver of lying, and subsequently the driver armed himself, and returned to plaintiff’s place of business for the purpose of obtaining a receipt and payment of the express charges, and demanded an apology from plaintiff’s husband and in connection therewith shot him, the demand for an apology was no part of his employment; and the express company was not liable.
    Appeal from Hempstead Circuit Court; George R. Hayme, Judge;
    reversed.

      Mehaffy, Donharn & Mehaffly and King, Mahaffey & Wheeler, for appellant, and A. M. Hartung, general attorney, of counsel.
    1. The master (appellant) was not liable for the unauthorized tort of the servant. He was not acting within the scope of his employment. 255 S. W. 597; 133 Ark. 327; 131 Id. 411; 136 Id. 123; 119 Id. 28. His act was not done in the prosecution of the master’s business, and the master was not liable!
    2. The argument of plaintiff’s attorney, Mr. Parks, to the jury, was improper and prejudicial.
    3. The verdict is excessive. 65 Ark. 619; 89 Id. 522; 106 Id. 177; 115 Id. 101.
    4. The court erred in its instructions for plaintiff Nos. 1, 5 and 6. No liability was shown by the evidence. 75 Ark. 589; 225 S. W. 597. The act was not committed in the prosecution of the master’s business. This is the test. 77 Ark. 606; 23 Neb. 582; 40 Ark. 323; 84 Id. 193; 93 Id. 397; 111 Id. 208; 132 Id. 282; 96 S. W. 1073; 113 Pac. 386; 107 Ala. 233; 115 Ark. 288; 153 S. W. 694. The rulings of this court are sustained by all the text writers. See Sh. & Redf. on Neg. (6 ed.), § 148; Clark & Skyles on Law and Agency, § 502; 2 Cooley on Torts (3 ed.), § 627; Wood on Master and Servant (2 ed.), p. 585, § 307.

      Tillman D. Paries and Jamies D. Head, for appellee.
    1. The express company was liable for the acts of its agent; he was acting on the master’s business, and was done in the course of his employment. 93 Ark. 397; 75 Id. 579; 115 Id. 288; 59 S. E. Rep. 189; 93 Fed. 936; 222 Id. 889; 82 N. W. 304; 93 N. W. 598; 135 Ind. 524; 113 S. W. 429 ; 21 Am. Bep. 597; 2 Cooley on Torts (3 ed.), § 630, p. 1024 ; 21 Am. Bep. 597; 175 Fed. 61; 242 Id. 926; 231 Id. 926; 143 S. W. 555; 57 So. Bep. 718; 64 N. Y. 136; 125 S. W. 925; 182 Id. 981; 7 S. E. Bep. 411; 25 Id. 565.
    2. The verdict is not excessive. 71 N. Y. 531; 118 Ark. 36; 77 Id. 1; 93 Id. 183; 135 Id. 56; 115 Id. 308; 216 S. W. 1057; 153 S. W. 651; 76 Ark. 377; 106 Id. 177; 82 Id. 504.
   Smith, J.

On and prior to the 7th day of March, 19191, Jeff Hines was in the employ of the appellant express company in the city of Texarkana as a driver, and delivered the perishable express, which included consignments of flowers. Peter W. Mackley was a florist in that city, and his wife worked in his place of business. On the afternoon of March 7 a shipment of flowers from Neosho, Missouri, was delivered by Hines to the floral shop. Mackley was absent at the time, and his wife was in charge. The flowers were in a damaged condition, and Mrs. Mackley asked when they had been received, and Hines answered by giving the number of a train on which they had been shipped. Mrs. Mackley asked Hines why he wanted to tell a lie about the flowers, as the train on which he said they had arrived did not pass through Neosho. While the controversy was going on, Mrs. Mackley telephoned the agent of the express company, who sent his subagent, one Stuckler, over to the floral company, and, about the time Stuckler arrived, Mackley, who had also been called by his wife, came into the shop, and Mackley and Stuckler agreed on an adjustment of the damage to the flowers by reason of the delay in the delivery thereof. In the meantime Hines left the premises of the floral company in the course of his business without having taken the receipt of the floral company for the flowers and without having collected the charges on the express.

On the next afternoon Hines returned to the floral company for the purpose of collecting the charges on the shipment and of taking the receipt of the floral company therefor. Mackley walked to the front of the store to sign the receipt in the hook of the express company provided for that purpose and to pay the charges on the shipment of the previous day. There was nothing about signing the book or paying the charges over which Mackley and Hines could disagree or did disagree. The signing of the book was a perfunctory act which Mackley was performing when the trouble arose which forms the basis of this litigation. Mackley had written the words “Peter W. Mack” without having quite finished the “k,” whenHines referred to the dispute with Mrs. Mackley on the day before. Mrs. Mackley and her friend, a Miss Van Treese, were seated in the rear of the shop, and heard the word “apologize”, spoken in a tone loud enough to attract their attention. Upon looking up Mrs. Mackley saw that her husband's hands were in the air, and that Hines had a pistol pointed in her husband’s face. She started at once to her husband’s assistance, and in going to him passed a drawer in which her husband kept a pistol. She picked the pistol up and continued on her way. She testified that she had never shot a pistol and did not intend to shoot Hines, but that it was her intention to give her husband the pistol so that he could defend himself, but before she could do so Hines shot and killed Mackley and shot and seriously injured her.

Two suits were brought against Hines and the express company, one being by Mrs. Mackley in her own right, and the other by her as administratrix of her husband’s estate. There was a recovery in each case; but upon appeal here the cases have been briefed together.

Hines gave a different version of the shooting, and claims to have fired in self-defense. But we must, of course, accept Mrs. Mackley’s version as true in view of the jury’s verdict. Hines was tried and given a long term sentence in the penitentiary for the shooting.

Hines testified that Stuckler offered to go to the floral company and collect for the shipment and obtain the receipt; but he declined the service, No attempt was made to show, however, that any representative of the express company knew that Hines contemplated renewing the difficulty of the day before. Hines testified that he revolved in his mind, after he went to bed that night, what Mrs. Mackley had said to him, and he determined to demand an apology from her husband. With this thought in mind he borrowed a pistol from a friend. The pistol had only one cartridge — an old one — in the cylinder, so Hines bought new cartridges and loaded the pistol. Hines had no duties which required him to go armed, and he had only armed himself the day of the shooting; and there is no contention that any other employee of the express company was advised of that fact.

In the preparation of the respective briefs counsel have, through their research, collected many cases dealing with the liability of the master for the unauthorized tort of the servant committed during the course of his employment. It would be a work of supererogation to attempt to review these cases. The subject is one which has frequently engaged the attention of this court, and the law on the subject is thoroughly well settled. A very recent case is that of Wells Fargo & Company Express v. Alexander, 146 Ark. 104.

The Alexander case, supra, collects a number of our cases on the subject. In addition to the cases cited in the Alexander case, supra, see also other cases more or less recent as follows: Healey v. Cockrill, 133 Ark. 327; C., R. I. & P. Ry. v. Womble, 131 Ark. 411; C., R. I. & P. Ry. Co. v. Gage, 136 Ark. 123; St. L., I. M. & S. Ry. Co. v. Lavensduskey, 87 Ark. 540; St. L. & San Francisco R. Co. v. Van Zant, 101 Ark. 586; St. L., I. M. & S. Ry. Co. v. Robertson, 103 Ark. 361; Arlington Hotel Co. v. Tanner, 111 Ark. 337; E. L. Bruce Co. v. Yax, 135 Ark. 480; St. L., I. M. & S. Ry. Co. v. Robinson, 95 Ark. 39; Mayfield v. St. L., I. M. & S. Ry. Co., 97 Ark. 24; St. L. & S. F. R. Co. v. Rie, 110 Ark. 495; Pine Bluff & A. R. Ry. Co. v. Washington, 116 Ark. 179; St. L., I. M. & S. Ry. Co. v. Tukey, 119 Ark. 28.

The doctrine of all these oases is that the test of the master’s liability is, not whether a given act is done daring the existence of the servant’s employment, but whether it was committed in the prosecution of the master’s business.

In the case of St. L., I. M. & S. Ry. Co. v. Grant, 75 Ark. 579, we said that if “the agent was acting for his principal, and in pursuance of his real or apparent agency, at the time the tort was committed, then it may be said that he was acting in the course of his employment, and the principal will be liable for such a tort; whether authorized or not.”

Appellee cites and relies on the case of Bryeans v. Chicago Mill & Lbr. Co., 132 Ark. 282. In the second appeal of this case (Chicago Mill & Lhr. Co. v. Bryeans, 137 Ark. 341), an application of the law of the case, as announced in the first opinion, was made to the facts as developed at the second trial. It was the duty of the servant who committed the tort in that case to prevent nonemployees from interfering with employees in the discharge of their employment, and the shooting in that case grew out of the act of the servant in discharging that duty. The defense was made by the master in that case that the killing grew out of a private quarrel. We there said:

“In one of the latest cases upon this subject we said: 'No hard and fast rule has been or can be prescribed by which to determine what acts are within the scope of a servant’s employment. Each case is governed by its own particular facts, under certain general rules of law.’ Cooley says: ‘Where a servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the acts or omissions of the servant.’ Cooley on Torts, 1032; 26 Cyc. 1536. Conversely, when the servant acts with reference to the services for which he is employed and for the purpose of performing the work of his employer, and not for any independent purpose of bis own, but purely for tbe benefit of bis master, it is generally beld, under sucb circumstances, tbat tbe acts so done are witbin tbe scope of tbe servant’s employment.” .

We can not make tbe law of tbe subject plainer. Tbe difficulty in tbat case, as in tbis, and in most cases of tbis character, is in determining whether or not tbe servant has stepped aside from tbe employment; whether be was undertaking to discharge tbe duties of bis employment, however erroneous or mistaken his conception of bis duties may have been; or whether be is pursuing bis own plans and purposes which have no relation to bis employment?

Applying tbis test, we think there is no liability in tbis case. Tbe matter over which the difficulty arose bad been settled twenty-four hours before. Tbe company bad admitted its liability, and bad agreed to discharge tbat liability. Tbe settlement was mutually satisfactory, and was final. There would have been no trouble but for tbe fact tbat Hines thought an apology was due him for what Mrs. Mackley bad said tbe day before. His demand for an apology was made during bis employment; but it was no part of bis employment. It was in no manner necessary for him to obtain this apology to discharge bis employment, and bis act in demanding it must be attributed to a feeling of personal resentment, or injured pride, or some other emotion impelling him to rashness, of which tbe master was not advised and for which tbe master was not responsible, because it was a matter in which the master bad no concern.

Tbe judgment of tbe court below must therefore be reversed, and the cases will be dismissed.

Humphreys, J.

(dissenting). Even if it be conceded tbat an express company is liable to third parties for only sucb torts as their servants may commit tbat grow out of, or have relation to, the particular business being transacted at tbe time by tbe employee for tbe master, I can not agree with, the conclusion of the majority that the tort committed by Hines in the instant case was independent of, or disconnected from, his agency. He shot and killed Peter W. Mackley and wonnded Mrs. Chloe Mackley while obtaining a receipt and collecting the charges on a shipment of flowers, over which a controversy had arisen the day before, in the course of which Hines had been charged with falsifying as to the train on which the shipment arrived. While it is true the amount of damage caused by the delayed shipment was agreed upon the day before the tort was committed, the transaction, out of which the dispute arose, leading to the commission of the tort was not closed, and during the continuation of the same transaction and before completed, Hines renewed the controversy by demanding an apology for what had been said to him in the course of the dispute the preceding day. The tort resulted on account of the quarrel begun one day and continued the next, growing out of and relating to the same business transaction, which transaction was clearly within the scope of the agent’s authority; and I think, on that account, the appellant is clearly liable for damages resulting from the tort.

I therefore dissent from the judgment of reversal and dismissal in each case.


text:
    Jackson v. Barnes.
    Opinion delivered April 11, 1921.
    Vendor and purchaser — right to rescind sale. — Where a vendor of land agreed that, if the title was not approved by the ven-dee’s attorney, the vendor would pay the costs of a suit to quiet title, the vendee, by taking possession and cutting sixty-three trees in reliance upon the vendor’s bringing a suit to remove defects pointed out by the vendee’s attorney, did not accept the title as it stood, and, upon the vendor’s failure to bring such suit, could sue for the value of property given in exchange, instead of suing on the covenants Df warranty.

      Appeal from Desha Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      E. E. Hopson and Coleman, Robinson & House, for appellants.
    1. The Omaha property was valued too high by the lower court.
    2. Appellants have not broken their contracts. A merchantable title was furnished as per contract. A reasonable time after defects are found, or pointed out, to cure them. 128 Ark. 361; 126 Id. 498; 120 Id. 69; 119 Id. 418.
    3. Appellee having entered into possession is not entitled to the relief sought. Where a purchaser has been let into possession and continued without interruption, under a paramount title, he is not, in the absence of fraud, entitled to equitable relief from the payment of the purchase money on the ground of defect of title. He must seek his remedy at law on the covenants of his deed, etc. Appellee entered into possession and is not entitled to recover until evicted. 24 Ark. 456; 21. Id. 588; 38 Id,. 202. A purchaser under a deed with covenants of warranty who has entered into possession can not, so long as he retains possession, deny the vendor’s title or refuse to pay the price. 24 Ark. 61; Hempstead 502; 3 Pet. 43; 1 Nott & McCord 373; 27 Ark. 588; 47 Id. 296. Under these decisions appellee is entitled to no relief in this suit.

      Williamson & Williamson, for appellee.
    Appellants have broken their contract. The assumed modification of the original contract by the “supplemental” contract is void as to appellee-, as he did not sign it; and if he made any such agreement, it is void within the statute of frauds. 69 Ark. 513; 91 Id. 133.
    No contract is binding without a consideration to uphold it. 26 Ark. 160; 70 Id. 232. No benefit accrued to appellee nor loss or damage to appellants, ‘and there was no consideration for the assumed agreement 101 Ark. 28.

      The land is wild and unimproved. The mere cutting of timber is not possession such as to require ejectment. The cases cited 'by appellant are cases of adverse possession under warranty deed. Appellee never accepted the deed nor title. 49 Ark. 266; 88 Id. 318; 84 Id. 587. On the whole case the decree is equitable and just.
   Smith, J.

On April 20,1918, Jackson and Vreeland, the appellants, contracted with T. B. Barnes, the' appel-lee, to convey to him a merchantable title to 240 acres of land in Desha County, for the sum of $9,000, a portion of which was to be paid by the conveyance of certain lots in the city of Omaha, Nebraska. On May 25 a supplemental agreement was entered into, wherein it was provided that the abstract of the title should be examined by Guy C. Reed, the attorney for Barnes; and, if the title was not approved by Reed, then appellants ‘ ‘ agree to pay necessary costs of suit brought in district court of Desha County to quiet said title, including attorney’s fee.”

The abstract was submitted to Reed, who rejected the title. No suit was ever brought to confirm the title. Appellants say the suit was not brought because they were led to believe the title would be accepted without confirmation, as Barnes had taken possession of the land by cutting timber. Barnes denied he ever agreed to accept a title not approved by his attorney, and he testified that he supposed a confirmation suit would be brought, as he signed papers for that pupose prepared by appellants ’ attorney. He admitted cutting sixty-three trees, which measured 4,454 feet, but he testified that when he did this he “supposed a perfect title was forthcoming;” but when he found that suit had not been brought at the term pf the court to which it was agreed the suit should be brought, he treated the contract as at an end and so advised appellants.

Appellants took charge of the Omaha, property and sold it to innocent purchasers without notice of the terms under which it had been sold, the sale being made subject to certain outstanding incumbrances. The court fixed tfie value of the Omaha property at $3,400, whereas appellants received only $1,700 at the sale made by them, and this finding of value is one of the questions raised on this appeal. The testimony on this subject is conflicting; but we are unable to say that the finding of the chancellor is clearly against the preponderance of the evidence.

We think the testimony does not support the contention that appellants had the right to assume that ap-pellee was satisfied with the title and was willing to accept it as it stood. Nor do we agree with counsel for appellants that appellee is relegated to a suit upon his covenants of warranty contained in the deed prepared and tendered by appellants, as having accepted the land. We think there was no such taking possession as amounted to an acceptance. It is true some timber was cut, but this was done on the assumption that a merchantable title would be tendered and that the necessary steps to perfect the title .had been taken. The acceptance was conditional, the condition being that the title contracted for would be furnished, and that was never done.

No objection to the value of the timber as found by the court was made. Appellants were allowed credit for the value of the timber in the decree fixing the value of the Omaha property for Which judgment was rendered.

We think the court’s finding that a merchantable title was not furnished as required by the contract is not clearly against the preponderance of the evidence, and the decree of the court below is therefore affirmed.


text:
    Trieschmann v. Blytheville Steam Laundry.
    Opinion delivered April 11, 1921.
    1. Landlord and tenant — option op purchase. — A provision in a lease that the lessee should have an option during the life of the lease to purchase, and that if the lessor desired to sell he would give the lessee the preferential right to buy at a price named, was an option to purchase, and not an executory contract to convey

      2. Specific performance — option contract. — Where a lessee of land having a legal right to convert an option to buy into an ex-ecutory contract of sale suffers the lessor to sell the property to another, the remedy of the lessee is not specific performance, but an action at law for breach of the contract.
    Appeal from Mississippi 'Chancery Court, Chicka-sawba District; Archer Wheatley, Chancellor;
    reversed.

      M. P. Huddleston, R. E. Fuhr and J. M. Futrell, for appellant.
    1. Complainant must have the equitable title before he can call for specific performance.
    2. Possession imputes knowledge to all persons of the possessor’s title.
    3. The option here was no more than a standing offer to sell, and, unaccepted, created no right, title or claim to the lands in the laundry company.
    4. If the offer had been accepted by the laundry company prior to the sale to Trieschmann, it would have acquired the equitable title which would have been protected against all persons having notice.
    5. An agreement by one party can not be enforced against a third party except when such third party had made an agreement to that effect.
    That Trieschmann had no actual knowledge of the option purchase is fully sustained by the testimony. He had neither actual nor constructive notice.
    The laundry company did not exercise its option prior to the sale, and it 'was error to decree specific performance. 1 Pom., Eq. Jur., §§ 105, 366-7-8.
    The finding of the chancellor is against the preponderance of the testimony. The case should be reversed on the law and the facts.

      Little, Buck.S Lasley, for appellee.
    Appellant purchased with full notice of appellee’s rights and is bound. 39 Cyc. 1756; 6 L. R. A. 205; 31 Cyc. 1592-5; 2 Pom., Eq., §§ 666, 675; 57 U. S. (Law. Ed.) 1310. See, also, 10 Cyc. 1064, 1963; 49 Neb. 618; 61 S. W. 889. As to “reasonable notice,” see, also, 52 Am. Rep. 822. Due notice was given, as the evidence shows. The burden was on appellant and he has failed to meet it.
   Smith, J.

The Blytheville Laundry Company filed its complaint against M. N. Nunn and J. W. Trieschmann, praying for the specific performance of a contract executed by Nunn, as lessor, to the Blytheville Laundry Company, a corporation, as lessee, dated January 25, 1917. The defendant, Nunn, filed an answer, denying all the material allegations of the complaint. .Trieschmann filed a separate answer, denying the material allegations of the complaint, and alleging that bis codefendant, Nunn, desired to sell the premises described in the lease contract, the same being the building used by the laundry company in the operation of its business, and in compliance therewith notified the plaintiff of his desire to sell and gave the plaintiff the preferential right to purchase, but plaintiff refused to exercise its option and declined to purchase.

The lease contained the following provisions: “It is further understood and agreed by and between the parties hereto that the lessee shall have the option, at any time during the life of this contract, but not during the extension thereof, unless mutually agreed to by the parties hereto in the renewal contract, to purchase said premises for the sum of $3,500, and the lessor agrees, upon the exercising of said option by the lessee, or upon notice from the lessee that it desires to purcahse the same for the sum of $3,500, to execute a good and sufficient warranty deed therefor, conveying the said property to the lessee, or to any one whom it may designate; and it is further understood and agreed by and between the parties hereto that, in the event the lessor desires to sell and dispose of said building, he shall give the lessee the preferential right to purchase the same at and for the sum of $3,500, and shall notify it and give it the first opportunity to acquire said premises.”

The court found that, at the time Trieschmann .purchased the property from Nunn, the laundry company was in the actual possession of the property, and that Trieschmann was, therefore, affected with notice of the right of the laundry company to purchase the property at any time prior to January 25, 1922. Trieschmann had no notice except that resulting from the actual possession of the premises by the laundry company. The court decreed specific performance upon the payment to Triesch-mann of the sum of $3,500, and this appeal is from that decree.

It appears that one Mott, a banker, was the secretary and treasurer of the laundry company, and had acted for it in the negotiations leading up to the execution of the lease; and it was to him that Nunn gave notice of his intention to sell. Mott testified that he accepted the offer, but before a reasonable opportunity was afforded. him to consummate the purchase a sale was made to Trieschmann.

Mott testified, however, that he treated the offer as a personal one, and that his acceptance was for his personal benefit; and, because of Mott’s attitude• toward Nunn’s offer to sell, the laundry company insists that it was never given the option to buy. Nunn denied that the offer was accepted by Mott, and stated that he sold to Trieschmann, .after Mott, acting for the laundry company, had refused to exercise its option.

oBut a case for specific performance is not made, even though we accept Mott’s statement that he offered to buy. His offer was for himself, and not for the laundry company. The writing set out above is not an executory contract to convey land. There was here only an option to purchase. It is true the contract gave an option to buy, which continued during the life of the lease. But, so far as that feature of the contract is concerned the contract was unilateral. There was no obligation on the part of the laundry company to buy. It could buy or not, as it pleased. The failure of Nunn at any time during the life of the lease to afford the laundry company the opportunity to exercise its option would have constituted a breach of tbe contract. But tbe laundry company could acquire an equitable interest in tbe land only by exercising its option. Under tbe contract it bad tbe right at any time during tbe lease to acquire tbe equitable title by offering to buy; but it did not acquire this equitable title until it exercised its option.

At section 501 of James on Option Contracts the following statement of tbe law appears:

“On this subject one line of decisions (tbe weight of authority) bolds that an option contract to purchase does not vest any estate, legal or equitable, in tbe optionee prior to bis election to purchase. This, it is said, results from tbe nature of tbe option contract in that thereby tbe optionor does not sell tbe property, nor does he thereby agree to do so, but sells to tbe other party tbe right merely of an election to buy, and therefore the rule that a vendor under an agreement of sale bolds tbe title in trust for tbe vendee, and that tbe vendee bolds tbe purchase money in trust for vendor, does not apply to option contracts.

“There is another line of decisions which seems to bold to tbe contrary, but it occurs to us tbe well considered of these decisions hold merely that, when tbe option is supported by a consideration, tbe optionee acquires a right, by timely election, to enforce a conveyance of tbe property as against a purchaser or encumbrancer with notice.

“However, there might be a case where a transaction, taking on tbe form of tbe option, is such as to vest in tbe optionee an equitable right or estate in the property.” See, also, Swift v. Erwin, 104 Ark. 465.

The laundry company bad tbe legal right at any time during tbe life of tbe lease to convert an option to buy into an executory contract of .sale, in which event a right to a decree for a specific performance would have arisen. But tbe laundry company suffered a sale of the property to be made before it exercised its option to buy, and while it had only an option to buy, its remedy, therefore, consisted in an action at law for the breach of the contract. The distinction in the rights of the laundry company before and after exercising its option to buy is shown at sections 367 and 368 of Pom-eroy’s Equity Jurisprudence in the discussion of the effect of an executory contract at law and in equity.

As the laundry company did not exercise its option prior to the sale, it acquired no equitable title to the land, and the court should not, therefore, have awarded a decree for specific performance. The decree is, therefore, reversed and the cause remanded with directions to dismiss the complaint for want of equity.


author: Humphreys, J.

text:
    Malone v. Holly Grove Lumber Company.
    Opinion delivered April 11, 1921.
    1. Mechanics’ lien — notice to owner. — The ten days’ notice to the owner of the land provided for by Crawford & Moses’ Digest, § 6917, where a person other than the original contractor wishes to avail himself of the mechanics’ or materialman’s lien, does not apply if the owner himself purchased the material or employed the labor.
    2. Mechanics’ lien — evidence.—In a suit to recover for material furnished to erect a building, evidence held to sustain a finding that the material was sold directly to the owner, and not to the contractor.
    Appeal from Monroe Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Bogle & Sharp, for appellant.

      8. S. Jeffries, for appellee.
   Humphreys, J.

Appellee, Holly Grove Lumber Company, a partnership composed of Rue Abromson and B. G. Wellborn, instituted suit against appellant in the Monroe County Chancery Court to recover judgment against him for material furnished to erect- a building on lot 1 in block 9, in Blackton, Arkansas, and to enforce a lien upon said property under act No. 146 of the Acts of the Legislature of 1895, securing liens to mechanics, laborers and others, upon property improved.

Appellant filed an answer, denying that appellees furnished him the material to erect the store building in question, and that he was entitled to a lien for same on the property in question.

The cause was submitted to the court upon the pleadings, the deposition of B. G. Wellborn and exhibits thereto attached, offered on behalf of appellee, and the deposition of J. Y. Malone and a copy of a delivery receipt of the Missouri Pacific Railroad Company for certain materials, offered on behalf of appellant, from which the court found that appellant was indebted to appellee in the sum of $530.83 for material that entered into the construction of the building, and $57.18 for roofing that did not enter into the construction of said building, for which amounts judgment was rendered against appellant and a lien for $530.83 declared on said lot. This appeal is from the findings and decree, and the cause is here for trial de novo.

The facts, in substance, are as follows: Appellant owned the lot in question, and, in January, 1919, employed A. B. Carrier to construct a store building on the lot for either $1,000 or $1,100, with the understanding that the contractor was to furnish all labor and material. On January 23, the contractor called at the store of appellee, in the town of Holly Grove, and told B. G. Wellborn that he had an order for him. He gave B. G. Wellborn a list of the material, and, without inquiry as to the price, told him to ship it to J. V. Malone at Blackton, Arkansas. The bill of material was charged on the books and shipped to appellant at Blackton on the 23d day of Janaury, and arrived there on the 25th. Appellant signed a delivery receipt to the railroad company for the material, which showed on its face that he was the consignee and that it was waybilled from Holly Grove. The material was used in the construction of the store building on the lot in question. On January 28, a one-sixth, flue thimble for the building was mailed and charged to appellant. On March 1, a front for the store building was sold to appellant by W. K. Wellborn, who was at the time salesman for appellee, which was charged to appellant on the hooks by appellee and shipped to him directly from Little Rock. In response to a statement of the entire account mailed to appellant by appellee, be wrote the following letter on April 9,1919:

“Mr. Wellborn: I am enclosing you a check for the roofing and front that I bought from you, hoping this will be satisfactory. Now, in reference to the car of lumber: If you sent me a statement, I don’t know anything about that. I never bought any lumber from you. If it is the car of lumber that Carrier sent here, a part of it is here, some of it was used in my house, and the balance left here, so if that is what you sent statement here for, you can get it any time. It was so sorry that I would not allow it to go into the house. I will try to go down to Holly Grove as soon as I ban and see you about this.

“Yours respectfully, J. Y. Malone.”

On April 21 thereafter, B. G. Wellborn wrote to appellant as follows: “Mr. J. V. Malone, Blackton, Ark. Dear Sir: We are holding your check with the memorandum statement, as you said you were coming down in a few days, but, for fear that you have been so busy at this time, we thought best to write about it, so as not to have any misunderstanding. You failed to enclose paid expense bill for freight charges on the front, which is very necessary for us to have to get proper credit from the shipper. You also deducted for extra lumber that was used in the front, and this extra lumber that was needed, as your carpenter explained, was shipped by us without any charge to you whatever. You deducted for hinges, which is as agreed, also the five per cent, is all' right. Now, you say that you don’t know anything about the other lumber, some you could not use; we would be glad to have you ship that back to us and we will credit your account, or as it will cost us about five dollars a thousand to have this shipped here, we will deduct this charge per thousand feet if you could use this, and send me a check to balance the account.

“B. G. Wellborn.”

The lien of appellee was filed in the clerk’s office on the 18th day of May, 1919, and the suit to enforce the lien was commenced on the 28th day of January, 1920. No notice of the intention to file the lien was given to appellant.

B. G. Wellborn testified that lie sent appellant an invoice of the materials and monthly statement of the bill, the receipt of which was not acknowledged until April 9, as per letter heretofore set out.

Appellant testified that he received no invoice for the goods and no monthly statements of account from appellee, except the statement of April 1, to which he replied on April 9; that he advanced the money to his contractor to pay the freight on the car of materials, but had nothing to do with it himself, being of the opinion that his contractor had purchased and shipped them in himself; that he settled with his contractor in full by paying him more than the contract price; that the contractor informed him that he had bought the materials at Heber Springs; that the only items he purchased from appellee were a store front and paper roofing, and that he sent a check to appellee to cover the amount on April 9, which appellee refused to present for payment.

Appellant contends for a reversal of the decree on the ground that appellee failed to give the ten days’ no-' tice to appellant before filing the lien in accordance with the requirement of section 6917 of Crawford & Moses’ Digest. The notice to the owner of the land provided for in the statute does not apply if the owner himself purchased the material, or employed the labor. The issue presented to and determined by the chancery court was whether, in the capacity of contractor, A. B. Carrier purchased the material, or whether, as agent, he placed the order with appellee for appellants. The chancellor found that the material was sold to appellant by order of A. B. Carrier. He based this finding upon the evidence of B. Gr. Wellborn, corroborated by the delivery receipt to the railroad company signed by appellant, which showed on its face that appellant was the consignee and that the material was waybilled at Holly G-rove. The fact that the material was charge to, shipped to, and received by, appellant and the testimony that an invoice and monthly statements were sent to appellant are strong corroborative circumstances that it was sold directly to said appellant on the order of A.* B. Carrier. It can not be said by us, after a very careful consideration of the whole evidence, that the finding of the chancellor was contrary to a clear preponderance of the testimony.

The decree is therefore affirmed.


text:
    Baird v. Street Paving Improvement District No. 1.
    Opinion delivered April 11, 1921.
    Municipal coeporations — petition foe improvement disteict.— A petition for the organization of an improvement district in a city or town need state the nature of the improvement only in general terms, and therefore a petition describing the improvement as macadamizing, grading, graveling, paving, curbing or guttering the streets mentioned was sufficient.
    Municipal corporations — petition for improvement district.— A preliminary petition for a street improvement district .which authorizes the improvement to be made with such material as may be determined, for the purpose of macadamizing or graveling the designated streets, contemplates material of the general character used in macadamizing or graveling streets.
    Municipal corporations — petition for improvement district.— A petition for a street improvement may ask for a macadamized or graveled street with curbs and gutters as a single improvement.
    Appeal from Conway Chancery Court; Jordan Sellers, Chancellor;
    affirmed.

      J. W. Jolmston, for appellant.
    The description of the improvement to be made, all of which are set out in the complaint, is too indefinite and uncertain, hence void, and the court erred in sustaining defendant’s demurrer to the complaint. 118 Ark. 119; 115 Id. 594; 59 Id. 344; 116 Id. 167; 130 Id. 44.

      Strait & Strait, for appellee.
    There is no uncertainty of description in the contemplated improvements. They are correctly and fully enumerated, and the descriptions sufficient, and the court properly sustained appellee’s demurrer. 105 Ark. 68; 59 Id. 344; 103 Id. 269; 97 Id. 334. See, also, 31 Iowa 31; 2 Page & Jones on Taxation, 869; 8 Wash. 317; 183 Ill. 57; 138 Cal. 364; 119 Ill. 509; 28 Conn. 363; 41 N. E. 374; 115 Ark. 94; 135 Id. 317; 95 Id. 496; 102 Id. 306. A general description is sufficient.
   Humphreys, J.

This is an appeal from a decree of the Conway Chancery Court, sustaining the sufficiency of the proceedings establishing Street Paving Improvement District No. 1 of Morrilton, Arkansas.

Appellant, a property owner of the district, attacked the validity thereof on the ground that the petitions for the organization of, and the ordinances creating and establishing the district, failed to certainly and definitely describe the improvements to be made.

The preliminary petition, required by section 5649 of Crawford & Moses’ Digest, described the improvements contemplated, as follows: “The said improvement district as above described to be organized for the purpose of macadamizing, grading, graveling, paving, curbing, guttering or improving with such material as may be determined. ’ ’

The petition for the establishment and organization of the district under section 5652 of Crawford & Moses’ Digest described the improvements to be made as follows: “We respectfully petition and ask that the following improvements contemplated be made in said district, of the nature, kind and character, towit: Macadamizing, grading, graveling, paving, curbing, guttering or improving in such a manner and form' as provided and shown by the estimates, plans and specifications prepared and on file be made and constructed on the following streets.”

The ordinance passed by the city council creating the district and fixing the boundaries thereof provided that the improvements to be made should be “grading, graveling and macadamizing, surfacing, paving, curbing or guttering the streets therein mentioned. ’ ’

This court ruled, in the case of McDonnell v. Improvement Dist. No. 145, Little Rock, 97 Art. 334, that the petitions provided for in sections 5649 and 5652 of Crawford & Moses’ Digest for the organization of improvement districts in incorporated towns and cities need not mate particular specifications of the things to be done in order to mate the improvements. It was said in that case: “All that is required is that the nature of the improvement be specified in general terms, so that the purpose of the organization may be set forth in the proceedings. Much must, of course, be left to the discretion of the commissioners in forming the plans for the improvement and making the estimates of the cost thereof.” The ruling in that case was reaffirmed in Board of Improvement of Paving Dist. No. 7 of City of Port Smith v. Brun, 105 Ark. 65. Under the ruling in those cases, the description in the petitions now before us described the proposed improvements with sufficient certainty and definiteness. The petitions and ordinances provide for paving the streets described, by macadamizing or graveling them, as well as for curbing and guttering said streets. It is true that the petitions contain a provision authorizing the improvement to be made with such material as may be determined, but that necessarily means material of the general character used in macadamizing or graveling streets. Appellant makes the further specific contention that, under the descriptive language used, it is impossible to determine whether all improvements therein designated are to be made, or, if not all, what particular improvements so enumerated shall be made. We understand the language to mean that the board of improvement shall either macadamize or gravel the streets, one or the other. We also understand the descriptive language to mean that, in addition to paving proper, the streets shall be curbed and guttered; so the paving, curbing and guttering constitute a single improvement. This court said in the case of Board of Improvement of Paving Dist. No. 7 of City of Fort Smith v. Brun, 105 Ark. 65, that, “If the improvement of the street is authorized, and to make such improvement it is necessary to grade, macadamize and curb the street, the work undertaken is in fact hut one improvement, although parts of the work are called by different names.” The property owners in the petition before us have clearly elected to pave the streets described by graveling or macadamizing them, as well as to curb and gutter said streets by the creation of one district. This they had a right to do, under the ruling announced in Bottrell v. Hollipeter, 135 Ark. 315, and in other cases of this court cited therein.

No error appearing, the decree is affirmed.


author: Humpheeys, J.

text:
    Hudson v. Union & Mercantile Trust Company.
    Opinion delivered April 11, 1921.
    1. Insane persons — time for appeal. — Crawford & Moses’ Digest, § 2140, allowing to an insane person a right of appeal within six months after removal of his or her disabilities, applies as well to a suit brought by an insane person as to one brought against him.
    2. Insane persons — validity of decree against. — Where plaintiff brought suit to set aside a sale under mortgage on the ground that she was insane at the time of its execution, and defendant by way of cross-complaint set up that the loan secured by the mortgage was used to pay valid liens on the land, and asked that such liens be foreclosed, which was done, the decree was hot void for want of an answer to the cross-complaint, which was in the nature of an equitable defense, and did not necessarily call for an answer from the plaintiff’s guardian.
    3. Judicial sales — rights of purchaser under erroneous decree.— A stranger purchasing under a judicial sale based upon a decree erroneous but not void acquires rights which will be protected.

      4. Insane persons — loans—subrogation.—Under the doctrine of subrogation, one lending money to an insane woman to buy land may have a lien thereon for the amount of such purchase money, but it was error to declare a lien therefor in his favor on other land owned by her.
    5. Insane persons — contracts—validity.'—The contracts of insane persons may be set aside though made at their instance without •notice of their infirmity for a fair consideration and without fraud or imposition.
    6. Insane persons — contracts—rescission.—An insane person may rescind a note and mortgage executed by her without restoring or offering to restore the consideration received, provided it is no longer in her possession or control.
    7. Insane persons — rights in land erroneously sold. — Where money was loaned to an insane person, which in part was used to pay off a lien on land owned by her, and part in making payment on other land bought by her and discharging a lien on the latter land, though a sale of both tracts for the entire amount was erroneous, she will not be entitled to restitution of the land purchased by a stranger, but where one of the tracts brought more than the lien against it, she will be entitled to a proportionate part of the purchase money.
    Appeal from Jackson Chancery Court; George T. Humphries, Chancellor;
    reversed.

      W. A. Cunningham, for appellant.
    The decree was rendered upon the cross-complaint of E. G-. Thompson 'and no answer to this cross-complaint was ever filed by a guardian or guardian ad litem of Ada Sims, a person of unsound mind. This was reversible error. 104 Ark. 193; 105 Id. 11. Mrs Sims was insane and was not bound for the purchase price of the lands. She should be allowed to recover her lands or the purchase price with interest, less the amount of the lien at the time the deed of trust then was executed to Thompson.

      Stayton & Stayton and Gustave Jones, for appellees.
    1. The appeal was not perfected in time and should be dismissed. C. & M. Digest, § 2131; 104 Ark. 379; 119 Id. 235.
    2. ¡Being the moving party, represented by regular guardian, appellant is bound by the judgment and decree. 55 Ark. 22; 98 Id. 151-155; 105 Id. 440. The appeal should be dismissed. Evidence dehors the record to establish a waiver by appellant of the right of appeal. 53 Ark. 514; 106 Id. 292; 85 Id. 30; 97 Id. 373; 92 Id. 242.
    3. There is no evidence of fraud or overreaching or inadequacy of consideration. At the time of the decree, Mrs. Sims was in possession of the property purchased by the money obtained from appellee Thompson and enjoying the benefit thereof. This case is ruled by 115 Ark. 430. 'See, also, 104 Ark. 187; 105 Id. 5; 135 Id. 440-4.
    Where infants by guardian or next friend go into court to assert their rights, they are under the eye of the court and enjoy its care and protection and the conclusions reached are as binding upon them as upon persons sui juris. 55 Ark. 22. Mrs. Sims was the moving party, and the statute affords her no relief. 9i3 Ark. 151, 155. Appellant has had her day in court and is bound by the decree as a person sui juris. 49 Ark. 399; 85 Id. 272; 70 Id. 415; 103 Id. 67.
   Humpheeys, J.

This is an appeal by Ursel Hudson, as next friend for Ada Sims, from a decree rendered in the Jackson Chancery Court on November 2,1915, against Ada Sims, in a suit brought in said court by Y. G. Richardson, as guardian for the person and estate of the said Ada Sims, a person of unsound mind, against the appel-lees. Y. G. Richardson, Ada Sims’ regular guardian, died May 13, 1918. The prayer for appeal was filed January 11, 1921. The suit was to set aside a mortgage given by Ada Sims, widow, on the 23d day of February, 1914, to E. G. Thompson, agent, and Wm. N. Dunaway, trustee, on 200 acres of land in said county, to secure a loan in the sum of $3,000, due two years after date.

The facts developed in the trial of the cause are substantially as follows: Ada B. Sims owned in her own right the north half of the southwest quarter, and the north half of the southwest quarter of the southwest quarter of section 34, township 9 north, range 2 west, upon which there was a mortgage lien for $500 and interest, in favor of Anna M. Volkmer. Her sister, Mrs. D. S. Stansbnry, owned the south, half of the northwest quarter and the south half of the southwest of the south: west quarter of said section, upon which there was a mortgage lien for $1,000 and interest, in favor of E. G-. Thompson. On February 6, 1914, Mrs. D. S. Stansbury sold and conveyed the 100 acres of land owned by her, heretofore described, to her sister, Ada B. Sims, for $3,000. In order to pay the liens upon the several tracts of land and to pay a part of the purchase money she owed Mrs. Stansbnry for the portion bought from her, she borrowed from E. G-. Thompson, agent, through the instrumentality of Gustave Jones, the sum of $3,000, on the 23d day of February, 1914, and executed the mortgage, or deed of trust, sought to be canceled, to Wm. N. Dunaway, as trustee for E. G. Thomason, agent, on the entire 200-acre tract — the 100 acres owned by her as well as the 100 acres purchased from her sister. Out of the proceeds of the $3,000, Mrs. Sims paid $520.83 in satisfaction of the Volkmer mortgage, $1,006.66 in satisfaction of the E. G. Thompson mortgage against the land purchased from her sister, Mrs. Stansbury, and the balance to Mrs. Stansbury on the purchase money for the 100 acres bought from her. Mrs. Stansbury at the time took a second mortgage to secure the unpaid purchase money. According to the weight of the evidence, Ada Sims was .insane at the time she executed the note and mortgage for $3,000, but her condition was unknown to any of the appellees. On the 8th day of April, 1914, the said Ada Sims was adjudged to be insane by the county court of Independence County, and V. G. Richardson was appointed guardian of her person and estate on the 11th day of May, following. The $3,000 mortgage in question was breached by failure to pay interest, and the trustee advertised and sold the entire 200-acre tract under the terms of sale provided in the mortgage. This suit was then instituted to set aside the sale and cancel the debt and mortgage on the g'round of the insanity of the said Ada B. Sims at the time she executed the mortgage or deed of trust. All the appellees answered, and, in addition to a denial of the material allegations of the bill, it was charged in the separate answer and cross-complaint of E. G. Thompson that the $3,000 loaned by him and secured by the mortgage in question, on the 200-acre tract of land, was used to liquidate mortgage liens upon the land at the time and to pay a part of the purchase money for the land purchased by Mrs. Sims from Mrs. Stansbury, and, on that account, he asked that a lien be declared on the land for the amount advanced, and for a foreclosure of the lien to pay the amount. A summons was issued on the cross-complaint and served upon the guardian of Ada Sims, who had instituted the suit.

The court found that Mrs. Sims was without capacity to contract at the time she executed the mortgage, but that her condition was unknown to any of the appel-lees, and that the money loaned by E. G. Thompson to her was used to liquidate existing liens on the several tracts of land and to pay a part of the purchase money for the 100-acre tract bought from her sister, and decreed a lien for the amount loaned, with interest, upon the entire 200-acre tract and ordered a sale thereof to pay the indebtedness. The sale was made, at which B. W. Jones, who was not a party to the cause, purchased the land for $3,600, which was reported to and confirmed by the court.

The appellees filed a motion to dismiss the appeal on the ground that the time elapsed for taking an appeal on the 2d day of November, 1916. At the time the decree was rendered, the general statute governing appeals allowed one year from the rendition of the decree within which to take an appeal; later, the statute was amended so as to allow only six months. A ruling on the motion was withheld until the final submission of the cause, and appellees now insist on a dismissial for the reason assigned in the motion. It is contended that, because appellant, through her regular guardian, instituted the suit, she was the moving party and was bound by the decree of the court as a person swi juris, and was therefore compelled to appeal within the year period. Section 2140, Crawford & Moses’ Digest, the general statute covering appeals to the Supreme Court, reads as follows: “An appeal or writ of error shall not be granted, except within six months next after the rendition of the judgment, order or decree sought to be reviewed, unless the party applying therefor was an infant, or of unsound mind at the time of its rendition, in which cases an appeal or writ of error may be granted to such parties, or their legal representatives, within six months after the removal of their disabilities or both.” It will be observed that no distinction is made in the statute between persons of unsound mind on account of being plaintiffs or defendants in a suit. This court said, in the case of Evans v. Davis, 146 Ark. 595, that the statute, “permits an appeal to be taken by a person of unsound mind within six months after the removal of such disability.” The motion to dismiss is overruled.

Appellant’s first contention is that the decree was void because rendered on the cross-complaint of E. Gr. Thompson, to which no answer was filed for the non compos mentis, either by the regular guardian or by a guardian ad litem. The matter set up in the so-called cross-complaint of E. Gr. Thompson was in the nature of an equitable defense to appellant’s bill asking for a cancellation of the debt and mortgage and did not necessarily call for an answer from a guardian of a party to the suit. The court had jurisdiction of the subject-matter and parties, so, if any errors were committed in the rendition of the decree, it was erroneous and not void. Boyd v. Roane, 49 Ark. 397. The decree ordering the sale not being void, B. W. Jones, who bought the land at the judicial sale, acquired rights as a purchaser which will be protected. Buford v. Briggs, 96 Ark. 150; Dodson v. Butler, 101 Ark. 416; Evans v. Davis, supra.

Appellant’s next and last contention is that the court erred in failing to return appellant the purchase price of the 100 acres of land which she owned individually before purchasing the 100 acres from her sister, Mrs. Stansbury, less $520.83 with accrued interest, which was paid out of the $3,000 loan made to her by E. G. Thompson, agent.

Appellees say that this contention presents a new or different issue, not determined in the lower court. Not so. This issue was determined adversely to the contention of appellant in the court below when the court, under the doctrine of subrogation, allowed E. G-. Thompson the proceeds from the sale of Ada Sims’ individual lands to repay the money advanced to her to buy other lands. We think it was error, under the doctrine of subrogation, to impose a lien upon appellant’s individual lands for money advanced or loaned to her with which to purchase the 100-acre tract from her sister. In further reply, appellees say that, according to the weight of authority, unless the parties can be restored to their original positions, courts will not set aside contracts made with insane persons at their instance, without notice of the infirmity, if the contracts were for a fair consideration and without fraud or imposition. The mortgage contract between Ada Sims and E. G. Thompson was set aside by the trial court on the ground that Ada Sims was insane at the time she executed it, and E. G. Thompson prosecuted no appeal to this court from that decision. Again, the doctrine contended for by appellee is not in accordance with the doctrine adopted by this court. In the case of Henry v. Fine, 23 Ark. 417, after deciding that contracts of this character made with insane persons without notice of the infirmity might be avoided at their instance, the court ruled that, in order to avoid the sale, it was not necessary to pay or tender the consideration paid by the purchaser. The doctrine there announced was reaffirmed in the later case of George v. St. L., I. M. & S. Ry. Co., 34 Ark. 613, in which this court disapproved an instruction incorporating the doctrine contended for by appellee in the instant case. It is unnecessary to determine where the weight of authority lies since this court has announced the doctrine that an insane person may rescind a contract of this character without restoring or offering to restore the consideration received. It goes of course without saying that, if the insane person, had the possession or control of the consideration received, he would be required to restore it before a rescission would be decreed, but, if the insane person had parted with the consideration, no such requirement is a necessary prerequisite to canceling the contract. It was proper for the trial court, under the doctrine of sub-rogation, after setting the contract aside, to charge Ada Sims’ individual land for money advanced or loaned to her by E. G-. Thompson to liquidate valid, subsisting liens upon that particular land.

While appellant can not have restitution of her individual tract of land which passed at the sale to the purchaser, B. m. Jones, she is entitled to restitution of a proportionate share of the proceeds of the sale. For example : If her individual 100-acre tract was of equal value with the 100 acres purchased from her sister, then she should have, by way of restitution, $1,800, one-half of the purchase price of the 200-acre tract, less the amount used out of the loan to pay the Anna Volkmer mortgage with interest thereon to the date the purchase money was paid into court for distribution.

For the error indicated, the decree is reversed and the cause remanded with directions to proceed in accordance with this opinion.


author: McCulloch, C. J.

text:
    Cochrell v. State.
    Opinion delivered April 18, 1921.
    1. Homicide — evidence of previous quarrel. — In a prosecution of a woman for killing her husband, where she claimed to have killed • him in self-defense, and she was permitted to detail her troubles with her husband and his cruel treatment and threats for a considerable period of time, it was not error to exclude the testimony of a witness concerning an altercation between defendant and her husband several months prior to the killing; there being no evidence to connect it with the killing.
    2. Criminal law — cross-examination—necessity op objection.— Assigned error in the overruling of an objection to a question asked defendant on cross-examination is not reviewable where no exception was saved to the court’s ruling.
    3. Homicide — sufficiency of evidence. — In a prosecution for murder, evidence held to sustain a conviction of murder in the second degree.
    Appeal from Jefferson. Circuit Court; W. B. Sor-rells, Judge;
    affirmed.

      Caldwell, Triplett & Boss, for appellant.
    1. It was error to refuse to permit Mrs. McFall to testify concerning an alleged previous difficulty or quarrel 'between appellant and her husband.
    A trial court should not mate assertions which show to the jury what the court thinks of the testimony. The jury should be the sole judge of the evidence. .51 Ark. 147.
    2. Mrs. McFall was not permitted to testify for appellant after appellant offered to show by the witness actual acts of violence committed by deceased upon appellant, and thus self-defense and justification in the killing. The testimony of Mrs. McFall showing these acts of violence by deceased would corroborate the testimony of appellant and should have gone to the jury. 51 Ark. 147.

      J. S. TJtley, Attorney General, and Elbert Godwm, Assistant, for appellee.
    1. Counsel for appellant never objected nor excepted to any questions or answers relative to the questions propounded to the witness by the court. 130 Ark. Ill; 129 Id. 316.
    2. A general objection to instructions in gross will not be considered if any of them are good. 105 Ark. 15, 555. A general objection to instructions en masse is in-suffieient if any one of them is correct. 73 Ark. 315 ; 75 Id. 182; 76 Id. 41, 482; 78 Id. 7; 86 Id. 103. Errors in instructions must be specifically objected to and the errors pointed out. 93 Ark. 521; 128 Id.'594; 2 R. C. L. 94-5.
    3. The evidence substantially sustains the verdict. 135 Ark. 117; 136 Id. 385.
   McCulloch, C. J.

Appellant was indicted for killing her husband, Wheeler Cochrell, and on the trial of the case was convicted of murder in the second degree.

Appellant and her husband were living in a rooming house in Pine Bluff owned by appellant, and early in the morning of July 6,1920, other persons living in the house heard pistol shots in the room occupied by appellant and her husband. There were three shots fired, according to the testimony introduced. One of the witnesses occupying a room across the hall testified that immediately after she heard the shots appellant came out into the hall and exclaimed that she had “hurt her boy.” Other persons, hearing the noise, ran into the room and found Wheeler Cochrell lying on the floor groaning. A police officer, who had been telephoned for, soon came while Cochrell was still lying on the floor, and Cochrell stated in the presence of appellant that “she,” pointing to appellant, “shot me full of holes for nothing.” Appellant made no reply, though asked by the officer if she had anything to say. They laid Cochrell on the bed, and he expired in a few minutes thereafter. The witnesses found two pistols lying on the bed — one a 38-calibre and the other a 32-calibre. The larger pistol was full loaded and the smaller one had two unexploded cartridges in it, two exploded cartridges and one chamber was empty. Four bullet holes were found in Cockrell’s body. A physician who examined the body after Cochrell’s death gave his opinion that the wounds were inflicted with a 32-calibre pistol. Appellant testified in the case and admitted that she shot her husband two or three times, but claimed that she fired the shots in self-defense. She testified that her husband had been mistreating her for a considerable length of time, that he had endeavored to force her to make a will in his favor and to take out life insurance payable to him, and threatened to kill her if she continued to refuse to do so. She stated that on the morning of the killing he renewed his efforts to induce or force her to execute the will and take out insurance and again threatened to kill her and came into the room where she was and with a drawn pistol declared he would kill her, when she fired the shots. Appellant was permitted to relate all of the details of her troubles with her husband and his cruel treatment and threats from the beginning.

The first assignment of error urged here for reversal of the judgment relates to the court’s refusal to permit a Mrs. McFall to testify concerning an alleged difficulty or quarrel between appellant and her husband. The record shows that appellant’s counsel asked the witness to state whether or not she had, on “an occasion some time prior to the killing,” witnessed a difficulty “at night or in the morning” between appellant and her husband. The prosecuting attorney objected to the question, and the court stated to counsel that the testimony would be admitted if it could be connected with the killing or shown that it led up to the killing. The witness then stated that she could relate such an occurrence which took place “several months before the killing,” and the court excluded the statement. This circumstance was too remote from the killing to be admissible as throwing any light on the tragedy, and the ruling of the court in excluding it was correct.

The next assignment of error relates to the action of the court in propounding a question to appellant on cross-examination concerning her alleged disposition of her husband’s belt and trousers which he wore when shot. No exceptions were made to the ruling, and this assignment can not be considered. These are all of the assignments urged for reversal.

The evidence is sufficient to sustain the verdict, and we find no error in the proceedings. Affirmed.