author: Humphreys, J.

text:
    Woodley Petroleum Company v. Willis.
    Opinion delivered January 17, 1927.
    1. Appeal and error — presumption—refusal to direct verdict. — ■ In determining whether the trial court erred in refusing to direct a verdict for appellant, the facts must be weighed in the light most favorable to the appellee, and the judgment will be affirmed if there is any substantial evidence to sustain it.
    2. Master and servant — assumed risk — jury question. — Generally, the question whether an employee assumed the risk of an injury is one for the jury, and is always so where a servant is acting under instructions of a superior, unless he appreciates the danger incident to obeying the order, or unless such danger is so obvious that a reasonably prudent person would refuse to obey the order.
    3. Master and servant — assumed risk — jury question. — Evidence held not to establish that the risk of obeying an order of plaintiff’s foreman was so obvious that a reasonably prudent person would have refused to obey such order.
    4. Master and servant — contributory negligence — instruction. —Where, in an employee’s action for personal injuries, the evidence justified submission of the issue of assumed risk, it was not error to submit a correct instruction on contributory negligence where there was evidence tending to establish that defense.
    5. Master and servant — assumed risk — instruction.—An instruction to the effect that an employee is in duty bound to obey his employer, and has the right to rely upon the superior knowledge of his employer as to the danger involved in obeying him, unless he knows of the danger himself and appreciates it, or unless the danger is so obvious and imminent that a man of ordinary prudence would not encounter it, held correct.
    6. Trial — abstract instruction. — An instruction, in an action by an employe^ for personal injuries, that the defendant was not negligent because plaintiff was obeying the orders of his foreman at the time he was injured, was properly refused, where neither party contended that the employer was negligent simply because the employee attempted to obey orders.
    7. Appeal and error — invited error. — Any prejudice resulting from testimony elicited on direct examination of a witness was waived where appellant subsequently elicited the same testimony on cross-examination,
    8. Appeal and error — improper argument — necessity op objection. — An alleged erroneous. remark of an attorney will not be considered on appeal where no objection was made at the time and no exceptions were saved.
    9. Damages — when not excessive. — An award of $20,000 for a fractured skull, debarring the plaintiff from work and constituting permanent injuries, when he had previously earned $5 per day, held not excessive.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judgu;
    affirmed.

      Roscoe R. Lyim, Marsh & Marlin, and Rusbee, Pugh & Harrison, for appellant.

      Powell, Sinead & Knox and G: E. Wright, for appellee.
   Humphreys, J.

Appellee instituted this suit against appellant in the circuit court of Union County to recover damages in the sum of $50,000 for injuries received by him on account of the alleged negligence of the foreman of appellant in ordering appellee into a dangerous place to perform his work and in failing, to provide a reasonably safe place in which said work could be performed. The gist of the complaint is that he received permanent injuries, which entailed great pain and suffering, in attempting to obey the order of appellant’s foreman to ascend a beam inclined to an unusual angle, and which was covered with fresh oil and mud, for the purpose of slipping a sand-trap hanging to a cable in an oil well derrick over a standing-valve in order to put tubing and piping back which had been pulled out of said well to clean it.

Appellant filed an answer to the complaint, denying the material allegations therein relative to the negligence and injury, and interposing the further defenses of contributory negligence and assumption of the risk.

The cause was submitted to a jury upon the pleadings, testimony adduced by the respective parties, and the instructions of the court, resulting in a judgment in favor of appellee in the sum of $20,000, from which is this appeal.

The first and main contention of appellant for a reversal of the judgment is that the undisputed facts reflected by the record show that appellee assumed the risk of whatever injuries he received, and that the trial court erred in refusing to peremptorily instruct a verdict in its favor.

In analyzing the testimony to ascertain whether appellant is correct in its contention, the settled rule of this court requires that the facts be viewed by the court in the most favorable light to appellee, and to affirm the verdict and judgment if there is any substantial evidence to sustain them.

Beviewing the evidence responsive to the issue of the assumption of risk in the most favorable light to appellee, the facts are about as follows:

The accident occurred eight months before appellee attained his majority. He quit school at the age of fourteen years, having reached the eighth grade; he then worked at almost anything around sawmills for four years. He then moved from Texas, his native State, to Louisiana, where he engaged for two years in the oil business, doing nearly every kind of work connected with drilling oil wells, except the work of a derrick-man. In December, 1921, he came to the Arkansas oil-fields, and commenced to work for appellant in the capacity of a roustabout. The duties of a roustabout were to pull rods and tubing in an oil well. About two months before the injury occurred he was promoted to the position of derrick-man, when it became his duty to do all of the work up in the derrick, which required that he walk, crawl, and climb from one place to another. Appellant was pumping four wells on its lease, and appellee was serving as derrick-man on all four of the wells. When the wells clogged or sanded up, in order to clean them it was necessary to pull the tubing and piping out of them, and, in replacing it the quickest way, it was necessary for the derrick-man to climb'up the samson-post and go out on the whlkingbeam to slip the sand-trap, or large pipe hanging to the cable in the derrick, over the standing-valve or smaller pipe, in order to connect them. There was a safer but slower way of replacing the tubing and pipes by disconnecting the standing-pipe on the floor of the derrick and inserting it in the trap before pulling the trap up and hanging same to the cable in the derrick. The walking-beam is a heavy piece of timber, 14 inches across the top, 22 inches thick in the middle, but tapering towards the ends, and 26 feet long, supported in the center by the samson-post, which is a strong piece of timber 15 feet long, standing firmly in an upright position. The inside end of the beam is directly over the well, to which the rod is attached that goes to the bottom of the well and operates the pump when the walking-beam works up and down, by a timber called a “pitman” connecting the outside end thereof to an eccentric wheel turned by an engine. On April 19, 1922, the well on which appellee was working as derrick-man, under the direction of O. C. Willis, foreman for appellant, clogged with sand, and, in order to clean it, the tubing and piping was pulled out and disconnected about every 60 feet. The sections were about 20 feet long. The tubing and piping were covered with oil and mud, which dripped onto the floor and other parts of the derrick. After the tubing and piping had been pulled out, they began bailing the sand out of the well, and continued this work at intervals for about two and one-half hours. The bailing line was saturated with oil and mud, which dripped on the walking-beam continuously and covered it with oil and mud, making it slick and dangerous. The pitman had broken through the floor and rested on the ground, causing the walking-beam to incline to the dangerous angle of 45 degrees. A short time after the bailing was finished, and before the oil and mud had dried, or dripped off the walking-beam, the foreman and employees cleaned out the sand-trap, pulled it up in the derrick, and started to put the tubing and piping back into the well by the quickest method in order to get through without having to work overtime. They made an effort to pull the trap down over the standing-valve, but could not get it stabbed in without sending a man out on the beam to hold and slip the trap over the standing-valve, so the foreman told appellee to go up on the beam and stab the large pipe over the small one in order to finish the work up, and call it a day. Appellee attempted to obey the order by climbing the samson-post and crawling out on the walking-beam on his hands and knees. He had gone only a few feet when he slipped off the beam, on account of its slick condition and the angle at which it stood, and fell to the floor on the tubing and piping, resulting in a fracture of his skull and three of his ribs'. The injuries rendered him unconscious for fifteen or twenty minutes. After being restored to consciousness by dashing water into his face, he was taken to a hospital, where a trephine operation was performed upon his head by removing the pressure of the skull from his brain. He remained in the hospital for treatment for about a month, during’ which time he endured much pain and suffering. ■ At the time of the injury he weighed 180 pounds, and thereafter lost 27 pounds, weighing only 153 pounds at the time of the trial, some three years after the injury. As soon as the wound healed he began to-work at intervals, but could not do so long at a time, on account of pains in his head, dizziness, and nervousness; There is testimony in the record tending to show that his injuries are permanent.

Appellee testified that he had gone out on the walking-beam frequently to perform his duties incident to his employment, but had never done so when the beam was covered with fresh oil and mud, or when it was inclined to an angle of 45 degrees; that he went up on the samsonpost and out on the beam in obedience to the order of his foreman, without realizing the danger; that he was going out hurriedly because the foreman wanted to get the tubing and piping back into the well without working overtime, and that he did not take time to examine the condition of the beam or take into consideration the danger of crawling out on it at the angle at which it was inclined; that, had he taken time to observe the beam, he could have seen its condition and discovered the danger incident to climbing it, but that he had his eyes upon the pipe and was thinking about the performance of his duties.

The foreman testified that appellee had never been directed, during his employment, to go out on the beam while it was covered with fresh oil and mud, or when it was inclined to an angle of 45 degrees; that, although he (the foreman) knew at what angle the beam was inclined and that oil and mud had dripped off of the bailing line onto the beam, completely covering it, he did not himself realize the danger entailed by his order until appellee slipped and fell.

Generally the question of whether an employee assumes the risk of an injury is one for the jury, and is always so where a servant is acting in obedience to the instructions of a superior, unless he knows and appreciates the danger incident to obeying the order, or unless the danger incident to obeying the order of his superior is so obvious and patent that a reasonably prudent person would refuse to obey the order. We cannot say as a matter of law, in the instant case, that appellee knew of the danger, or that the danger was so obvious or patent that he should have known it. The evidence shows that he exposed himself to the danger in an effort to obey the order of his foreman. The order of the foreman carried an implied assurance that appellee could perform the work without danger to life or limb. Appellee had never before attempted to climb a walking-beam which was covered with fresh oil and mud and standing at an angle of 45 degrees. The order was a hurry-up one for the purpose of replacing the tubing and piping in the well so that the crew would not have to work overtime. Appellee attempted to obey the order in the spirit in which it was given, without taking time to observe the condition of the beam or the angle at which it was inclined. It is clearly portrayed by the evidence that he acted without knowledge or appreciation of the danger, and that the danger was not so obvious or patent that a reasonably prudent person would have refused to obey the order. Even the foreman, with years of experience, did not realize that, his order entailed danger to life or limb, although he knew that the beam was covered with fresh oil and mud which had dripped on it from the bailing line, and that it was tilted to an acute angle. The facts in the instant case bring it within the rule announced and applied in the following cases decided by this court: A. L. Clark Lumber Co. v. Northcutt, 95 Ark. 291, 129 S. W. 88; Dickinson v. Mooneyham, 136 Ark. 606, 203 S. W. 840; Central Coal & Coke Co. v. Fitzgerald, 146 Ark. 109, 225 S. W. 433; St. L. Sw. Ry. Co. v. Gant, 164 Ark. 621, 262 S. W. 654; Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357; Choctaw, O. & G. Ry. Co. v. Jones, 76 Ark. 367, 92 S. W. 244; Griffin v. St. L. I. M. & S. R. Co., 121 Ark. 433, 181 S. W. 278.

Appellant next contends for a reversal of the judgment because the court gave appellee’s requested instruction No. 2, which is as follows: “You are instructed that it was the duty of the defendant company to use reasonable care to provide the plaintiff with a reasonably safe place in which to work, and, if you find from a preponderance of the evidence that it failed to do so, and the plaintiff was thereby injured, while he was in the exercise of ordinary care for his own safety, and had not assumed the risk, then your verdict will be for the plaintiff.”

The instruction is assailed 'because it submitted the issue of an assumed risk to the jury. Under our interpretation of the evidence, heretofore expressed, the assumption of the risk was a jury question, and properly submitted by this instruction, together with others upon the same subject.

Appellant next contends for a reversal of the judgment because the court gave appellee’s requested instruction No. 3, which told the jury, if appellant and appellee were both guilty of negligence, this would bar a recovery by appellee. The instruction is assailed because it is said, under the facts reflected by the record, that contributory negligence is swallowed up by the doctrine of assumed risk. The testimony in the instant case does not show that appellee was aware that the walking-beam was covered with fresh oil and mud and that the danger was so imminent and obvious that a person of ordinary prudence would not continue in the work. It is only where the record reflects such to be the fact that the doctrine of contributory negligence and assumed risk become indistinguishable. Appellee, in the instant case, may have been guilty of contributory negligence in failing to observe the condition of the walking-beam, but he could not be held to an assumption of the risk if he did not know of the defect, or if the defect was not so obvious and patent that a reasonably prudent person would refuse to perform the labor. No prejudice resulted, to appellant on account of a correct declaration of law relative to the doctrine of contributory negligence.

Appellant next contends for a reversal of the Judgment because the court gave appellee’s xequested instruction No. 4, which is as follows:

“You are instructed that, when an employee is directed by his superior to do a certain work or peform service in a certain place, he is justified in relying upon the superior knowledge and judgment of his employer as to his ability to perform the work with safety under the circumstances. He has the right to suppose that his superior will not expose him to unnecessary danger. If, when acting under the direct commands of his superior, he is required to go into a place of danger, he does not assume the risk of such danger unless he knew of the danger and appreciated it, or unless the danger was so obvious and imminent that no servant, in the exercise of ordinary, care and prudence, would have encountered it, notwithstanding the directions of his superior so to do. So, if you find from a preponderance of the evidence in this case that the plaintiff: was specifically directed by defendant’s foreman to climb upon the walking-beam, then you are told that plaintiff did not assume the risk incident to the use of said beam in such manner, unless he knew of and appreciated the danger arising from his going thereon, or unless the danger was so open and obvious that no person in the exercise of ordinary care and prudence would have undertaken the task, notwithstanding the directions so to do. ”

The instruction is assailed on the alleged ground that its effect was to relieve appellee from an assumption of the risk if he acted under the order of his foreman. We do not so interpret the-instruction. We think it a correct declaration of law to the effect that an employee is in duty bound to obey his employer, and has the right to rely upon the superior knowledge of his employer as to the danger involved in obeying him, unless he knows of the danger himself and appreciates it, or unless the danger is so obvious and imminent that a man of ordinary prudence would not encounter it.

Appellant next contends for a reversal' of the judgment because the court erred in refusing to give its requested instruction No. 19 as follows: “You " are instructed that, under the facts in this case, you cannot find that the defendant was negligent because plaintiff was obeying the orders of the foreman at the time he fell.”

This instruction, we think, is abstract, as neither party contended in the trial that appellant was negligent merely because appellee attempted to obey the order of the foreman. The court did not err therefore in refusing the instruction.

Appellant’s next contention for a reversal of the judgment is that the court erred in allowing O. C. Willis, in his direct evidence, to testify that the pipe could have been broken up and slid into the sand-trap before it was pulled up into the derrick. We think the evidence is responsive to the issue of negligence, but, if not, any resulting prejudice was waived, because the same information was elicited from said witness by appellant itself, on cross-examination, as evidenced by the following question and answer:

“Q." And you did that the usual and ordinary way you had done all other operations of that kind out there on this lease while he was employed there? A. No sir; we had put them in laying down on the floor; we have broken them up and laying down on the floor — we put them in that way. ’ ’

This question and answer had reference to -the method in assembling the sand-trap and standing-valve preparatory to replacing the tubing and piping in the well.

The appellant also contends that the attorney for the appellee made a remark in the presence of the jury prejudicial to its, rights at the time he elicited said information in the direct testimony of O. C. Willis. It is unnecessary to set out the remark of the attorney, because there was no objection made and no exception saved thereto at tjae time.

Appellant’s last contention for a reversal is that the verdict was excessive. At the time of the injury appellee was a young man in good physical condition and earning $5 per day. His skull was fractured and he was compelled to submit to a trephine operation. At the expiration of three years he was 27 pounds under weight, and could only work at intervals of short duration without suffering from headache, dizziness, nervousness and insomnia.

Dr. Mayfield testified that, if the headaches, dizziness and nervousness still existed after a lapse of three years, such symptoms indicated a permanency of the injury. When it is remembered that the verdict is intended to compensate appellee for both mental and physical suffering in the past as well as the future, and for his decreased earning capacity on account of permanent injury, we cannot say that $20,000 is excessive.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Gosnell Special School District No. 6 v. Baggett.
    Opinion delivered January 24, 1927.
    1. Judgment — collateral attack. — A decree which recites that it was entered by consent is not open to collateral attack upon the ground that no such consent was given.. ■
    2. Judgment — res judicata. — A decree restraining plaintiffs from teaching a certain school held res judicata of their subsequent action for damages for breach of their contract to teach, where the former decree necessarily implied a finding that plaintiffs had no contract to teach, and it is unimportant that plaintiffs asked no affirmative relief for breach of the contract in the prior suit.
    3. Judgment — res judicata. — The judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.
    4. Equity — granting complete relief. — Where the chancery court assumed jurisdiction to restrain parties from teaching a certain school, it could grant them affirmative relief in damages for breach of their alleged contract to teach in the school, if the testimony warranted it.
    5. Judgment — res judicata. — Where it is doubtful whether a second suit is for the same cause of action as the first, the two actions will be considered the same if the same evidence would sustain both, and the judgment in the former is a bar to the subsequent action, although the two actions are different in form.
    Appeal from Mississsippi Circuit Court, Ohickapawba District; G. E. Keck, Judge;
    reversed.

      Crowcler <& Cooper, for appellant.

      JIarrison, ¡Smith & Taylor, for appellee.
   Smith, J.

Two sets of school directors assumed to act for Gosnell Special School District No. 6 of Mississippi County, and each set of directors employed teachers to teach the school of the district. These conflicting claims led to the case of Stafford v. Cooke, reported in 159 Ark., page 439, 252 S. W. 597.

C. S. Baggett and his wife had been employed by one set of directors to teach the school, but they were denied the right to do so by the other directors, who were installed as a result of the decision of this court in the case just referred to. Baggett and his wife brought suit •to recover damages for the breach of their contract, and from a judgment in their favor in this appeal.

A number of defenses were interposed by the school district, but we will discuss only one of them, as we find it decisive of the case.

It appears that, before the institution of the present suit, the'directors who prevailed in the litigation involving the title to the office brought suit in the chancery court against Baggett and his wife to enjoin them from teaching the school under the contract which forms the basis of the present suit. It was alleged in that suit that the plaintiffs were the directors of the school district, and, as such, were in charge of its affairs, and had employed teachers who were ready to begin the school, but that Baggett and his wife had unlawfully and wrongfully taken charge of the schoolhouse and were asserting the right to possession thereof for the purpose of teaching school. There was a prayer that Baggett and his wife be enjoined from interfering with the school.

An answer was filed by Baggett and his wife, in which all the allegations of the complaint were denied. It was there also denied that the plaintiffs were school directors, or had employed other teachers, or that the defendants there (the plaintiffs here) were unlawfully or wrongfully in possession of the school.

A temporary restraining order was granted in that case, which was later made permanent, wherein Baggett and his wife were enjoined from teaching the school or otherwise interfering with it. The decree of the chancery court granting this relief was offered in evidence.

Objection was made to the introduction of this decree in evidence upon the ground that it appeared to have been rendered by consent of the attorneys who then represented the directors who had employed Baggett and his wife, when such consent was not given. But the decree cannot be thus collaterally attacked. It must be taken at its face value and given such effect as it purports to have.

It is also insisted that the decree does not sustain the plea of res judicata, for the reason that the defendants in the injunction suit (the plaintiffs here) did not seek in that suit to recover compensation for the breach of their contract to teach the school, the contract here sued on, and the case of Gardner v. Goss, 147 Ark. 178, 227 S. W. 25, is cited in support of that contention.

We think the plea of res judicata is well taken, and that the case of Gardner v. Goss, supra, does not decide to the contrary. In that case the de facto directors had discharged Gardner, a teacher, and we held that the directors had the power and authority to do this, whether that authority had been properly exercised or not, and that, having discharged him, they were' entitled to an injunction against him to restrain him from interfering with the school. In a suit at law Gardner later recovered damages for the breach of the contract between himself as teacher and the district, which was affirmed on appeal to this court. Gardner v. North Little Rock Special School List., 161 Ark. 466.

We held on the first appeal in. the Gardner case, in which an injunction issued by the lower court was sustained, that the acts of school directors who held office by virtue of a fraudulent election are valid as to third parties, though -performed during the pendency of a contest which later resulted in their ouster, as they were de facto officers-, and that, even though the discharge of- a teacher was a breach of his contract! of employment, this did not justify the teacher in refusing to surrender possession of the property and affairs of the district to the directors, as the teacher’s remedy was in an action at law for the breach of the contract. The validity of Gardner’s contract was not an issue in that case. We assumed that it was valid, but held that the directors had the power to discharge him notwithstanding that fact.

Unlike the Gardner case, the issue in the chancery court, in which Baggett and his wife were defendants, was whether they had authority to teach the school. It was alleged that the Baggetts did not have this authority, and they answered that they did. Their defense would have been sustained, had it been shown that they had a valid contract, even though the contract had been made by de facto officers. The chancery court granted the relief prayed, which involved and necessarily implied the finding that the Baggetts had no contract to teach the school; There was no allegation -that Baggett and his wife had been discharged. On the contrary, injunctive relief was prayed and granted upon the theory that they had no contract authorizing them to teach, and, as we have said, a sufficient defense to this suit would have been that they had a contract giving them that right.

In the case of Taylor v. King, 135 Ark. 43, 204 S. W. 614, it was said that:

“The rule has been often announced in this court that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposéd in the former suit” (citing cases).

The defense that appellees were not unlawfully and wrongfully teaching school wpuld have been sustained had the showing been made in the chancery court that they had a contract authorizing them to teach, and, as this defense could have been interposed there, it cannot be interposed here where the same issue is involved— that of the legality of appellee’s contract. ,

■It is unimportant that appellees did not ask the affirmative relief of damages for the breach of the contract in the chancery case. As the’ chancery court had assumed jurisdiction for one purpose, it might have granted appellees that relief had the testimony warranted it; but the chancery court decided, and adversely to appellees, under pleadings which raised that issue, that they had no lawful right to teach school, and that adjudication having been made, it follows that they cannot in another suit litigate that question again. In other words, they cannot recover damages if they had no contract, and the chancery court has adjudged that they did not have a contract.

At § 439 of the chapter on Judgments, in 15 R. C. L., page 964, it is said' that:

“If it is doubtful whether a second suit is for the same cause of action as the first, it has been said to be a proper test to consider whether the same evidence would sustain both. If the same evidence would sustain both, the two actions are considered the same, and the judgment in the former is a bar to the subsequent action, although the two actions are different in form. ’ ’

So here, appellees are not entitled to recover damages for a breach of a contract unless they had a valid contract, and, if they had such a contract, it should have been pleaded in the cause wherein injunctive relief was prayed and granted under the allegation that appellees were wrongfully in possession of the school.

It follows therefore that the plea of res judicata should have been sustained, and the judgment of the circuit court must therefore be reversed, and, as the case appears to have been fully developed, it will be dismissed.


text:
    Rose v. Bray.
    Opinion delivered January 24, 1927.
    1. Mortgages — foreclosure—inadequacy of price — Gross inadequacy of price coupled with any slight circumstances of unfairness in the party benefited by a foreclosure sale will justify the court in refusing to confirm such sale.
    2. Mortgages — foreclosure—inadequacy of price. — A foreclosure sale under a first mortgage will be set aside where the price paid was inadequate, and the purchaser had promised the second mortgagee and the mortgagor to furnish the money to the second mortgagee to purchase the property at the foreclosure sale, but notified them of the refusal to furnish the money too late for them to secure the money elsewhere.
    3. Mortgages — foreclosure—estoppel.—Where a lawyer, employed to collect a second mortgage on land, promised his client to furnish the money to purchase the land at foreclosure of the first mortgage, and failed to notify his client of his refusal to furnish the money until it was too late to secure the money elsewhere, and the client, being unable to procure the money.elsewhere, was compelled to assign his certificate of purchase to his lawyer, held that the client was not estopped by assignment of the certificate of sale from seeking to set aside the sale.
    Appeal from Mississippi Chancery Court, Chickasawba District; J. M. Futrell, Chancellor;
    reversed.

      Shane <£ Bailen, for appellant.

      Bloch & Kirsch, for appellee.
   Humphreys, J.

This is an appeal from a decree of the chancery court of Mississippi County, Chickasawba District, confirming a commissioner’s sale of certain real estate in said county and ordering the commissioner to make a deed to the purchaser thereof, in a foreclosure proceeding wherein B. C. Land Company was plaintiff and appellees herein were defendants. L. W. Rose, one of the appellants, owned the east half of the fractional southeast quarter of section 21, township 16 north, range 8 east, in said district and county, worth between $5,500 and $6,500. He executed a first mortgage thereon to B. C. Land Company for $2,000, and a second mortgage to Mr. Ellis Goodrich for $1,500. He failed to pay the first mortgage at maturity, and the B. C. Land Company foreclosed same, making L. W. Rose, the owner, and Mrs. Alice Goodrich, the second mortgagee, parties defendant in the proceeding. Pursuant to order, the land was sold on April 11, 1925, to Mrs. Alice Goodrich for $2,246.86, which was about $100 more than was necessary to satisfy the first mortgage, interest and cost. She was unable to give security or bond for the first payment of the bid, and assigned her certificate of purchase to W. G. Bray for W.F. Shelton, Jr., in consideration of $100 cash and the release by W. G. Bray of his claim for an attorney’s fee against her. On September 25, 1925, the first day of chancery court subsequent to the sale, appellants filed exceptions to the sale, praying that same be set aside upon the alleged ground that they had been misled and defeated in the protection of their rights at the said sale through misrepresentations and fault of "W. G. Bray, who purchased the land either for himself or W. F. Shelton, Jr., at said sale, for a grossly inadequate price, who took possession of the land by force a short time after the sale. They tendered into court a sufficient sum to redeem the land from the sale.

W. F. Shelton, Jr., filed an answer, denying the allegations set out in the exceptions to the sale, and praying for a confirmation thereof and a deed for same.

Appellants contend that the court erred in confirming the sale and ordering the commissioner to make a deed to W. F. Shelton, Jr., under the testimony introduced by them and the rule of law applicable thereto. The rule of law invoked by appellants as applicable to the facts in the instant case is that gross inadequacy of price, coupled with any slight circumstances of unfairness in the conduct of the party benefited by the sale, will justify a court in refusing confirmation thereof. The rule thus announced is supported by the cases of Wells v. Knox, 108 Ark. 366, 159 S. W. 1099; Stevenson v. Gault, 131 Ark. 397, 199 S. W. 112; Hawkins v. Jones, 131 Ark. 478, 199 S. W. 1099; Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445; Chapin v. Quisenberry, 138 Ark. 68, 210 S. W. 341.

Appellee introduced no testimony responsive to the issue joined, so the facts revealed by the record must be treated as undisputed. We shall only attempt a summary of the facts bearing upon the integrity of the sale, in announcing our conclusion. W. G. Bray was an active vice president of the bank of Senath, and its attorney. W. F. Shelton, Jr., was a stockholder in said bank. Quite a while before the sale B. A. Goodrich, acting for his wife, Mrs. Alice Goodrich, employed W. G. Bray to collect her second mortgage, and turned the note and mortgage over to him for that purpose. Goodrich contracted with him for an agreed fee of $100 to either get enough money from the bank or to advance enough to purchase the land at the sale and thereby protect his wife’s interest until they' could borrow the necessary amount from a loan company to repay him. Bray and Goodrich went together to J. C. Chapin to negotiate a loan, and he referred them to his associate, Mr. Kirscher, to whom an application was made for a loan of about $2,500. They informed J. C. Chapin that their plan was for Bray to loan the money to Goodrich, buy' the land at the sale; and, after securing the title, to obtain a loan through Kirscher and Chapin. Kirscher and Chapin viewed and appraised the land at $5,500 to ,$6,000. In February before the sale, Bray or his partner wrote to L. W. Rose to the effect that they had Mrs. Goodrich’s note and mortgage for collection. In response to the letter, he called on Bray, who proposed to represent his interest also at the sale, saying that he was going to furnish the money to Mrs. Goodrich to take care of the first mortgage if Rose would renew the second mortgage to Mrs. Goodrich. About ten days before the sale Bray informed Rose that he had decided not to lend Mrs. Goodrich the money' to take care of the first mortgage at the sale. Rose then tried to get a loan to take up the first mortgage, but did not have time to complete same before said sale. He was informed by an agent of the B. C. Land Company that he would have a right to redeem the land until court convened in September. He did nothing further, counting on redeeming it at that time. Having ascertained that he had been misinformed with reference to the redemption of the land, he joined Mrs. Goodrich in filing the exceptions herein to the sale. About ten days or two weeks before the sale Bray informed Goodrich that he had decided not to advance Mrs. Goodrich the money to take care of the first mortgage at the sale, and advised him to buy it in himself for as small an amount as possible, and give a bond to secure the bid. He accepted the advice, believing that Bray was still acting for them in the collection of Mrs. Goodrich’s note and mortgage. He bid the land in at the sale for $2,246.86, and produced two- bondsmen that he regarded as responsible, but the commissioner refused to accept them, and Bray made no effort to induce him to do so. Being unable to secure his bid to the satisfaction of the commissioner, and coming to the conclusion that he had lost any chance to protect the interest of his wife, he agreed to transfer his certificate of purchase to Bray for $100 in cash and the relinquishment of any claim by him of an attorney’s fee. The certificate was transferred to Bray for W. F. Shelton, Jr. Bray told Rose, immediately after the sale, that he had bought the land for himself. Appellants called Bray as a witness, and interrogated him relative to the purchase of the land at the sale for W. F. Shelton, Jr., as follows: “Q. You came over here that day of the sale representing him, didn’t you? A. No, sir. Q. Didn’t you wire for the money to conduct this sale? A. Yes sir. Q. When you bought the land, you immediately wired Mr. Shelton to get the money to pay for it, didn’t you. A. Yes sir. Q. You say to the court that you did not come over intending to buy the land for Mr. Shelton? How did you know he would want it if you didn’t? A. We had had more or less dealings since 1902. Some time prior we had a sort of understanding that if I found a bargain in land, to buy it and draw on him for the money and he would pay it. Q. In other words, to buy up all the cheap land you could get, and he would furnish the money to pay for it? A. There was nothing said about cheap land, about buy- ■ ing up cheap land.”

Shortly after the sale, and before the confirmation thereof, Bray took possession of the land in question by force, and put a man by the name of Coffee in charge thereof.

We think it fairly inferable from the testimony detailed above that Mr. Bray was, in fact, the real purchaser at the sale, notwithstanding the certificate was assigned to him for W. F. Shelton, Jr., without his knowledge and without- any specific understanding that he would do so. He. had the certificate assigned for the benefit of Shelton on the strength of an old understanding that he would buy land for him if it could be bought at a bargain. Immediately after the sale he told Rose that he had bought the land for himself.’ He took possession of the land before the confirmation of the sale, by force, and put his own man in charge of it. Treating him, then, as the real purchaser of the land, we do not think he should be permitted to profit by the sale. He bought it for an inadequate consideration from his client, who was in financial distress and who had contracted with him and depended upon him for financial assistance until ten days before the sale. In fact, on the day of the sale, Goodrich followed Bray’s advice and bought the land in for a little more than enough to pay the first mortgage. The men he got to secure the bid were refused, and Bray made no effort to get the commissioner to accept them. In trying to arrange matters, Bray had promised Rose to assist him, who relied upon his promise until about ten days before the sale.

We do not think Bray gave Goodrich and Rose sufficient notice that he would not assist them, after promising aid to Rose and contracting to lend Goodrich a sufficient amount of money to protect his wife’s interest against the first mortgage. They were unable to make other arrangements in the short time intervening between the notice and the sale. There can be no question about Rose being able to raise a sufficient amount to take up the first mortgage, had he been given a reasonable time to negotiate a loan. Goodrich should have been given more notice, under the circumstances, to protect his wife’s interest, and we do not think he should be estopped on account of the assignment of his certificate of purchase to his lawyer. It is quite clear that he made the assignment on account of financial distress, which could have been avoided, had his attorney given him ample notice that he did not intend to carry out his contract with him.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    General Motors Acceptance Corporation v. Salter.
    Opinion delivered January 24, 1927.
    1. Bills and notes — negotiable paper.- — An instrument, to be negotiable under Crawford & Moses’ Dig., § 7767, must be payable to order or to bearer.
    2. Bills and notes — non-negotiable paper — defenses.—A purchaser of non-negotiable instruments takes them subject to all defects or infirmities available to the maker against the payee.
    3. Appeal and error — instructed . verdict — effect of court’s finding. — Where both parties requested an instructed verdict, whereupon the court took the case from the jury and rendered a judgment, such judgment was the same as the verdict of a jury, and must stand on appeal if supported by substantial evidence.
    4. Principal and agent — apparent authority. — Apparent authority of an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing, which he appears to have by reason of his actual authority, or which reasonably prudent men, using diligence and discretion in view of the principal’s conduct, would naturally sup-pose the agent to possess.
    .5. Principal and agent — apparent authority of sales agent.— Where an agent took an order for a pumping and a lighting plant, delivered and supervised the installation of them, and took notes .' £or their purchase, a reasonably prudent purchaser would natur- ' ally suppose that the agent had authority to agree to take the plants back if they did- not prove to be satisfactory.

      Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    affirmed.

      Raymond Jones, for appellant.

      R. W. Robins, for appellee.
   Humphreys, J.

Appellant instituted suit in the circuit court of Faulkner County against appellee to recover $381.61 upon a conditional sales contract for a Delco light plant, and $117.84 upon a similar sales contract for a pumping plant, alleged to have been executed by appellee to W. P. Galloway Company, Little Rock, Arkansas, in payment of the balance of the purchase money for said plants, and assigned to it (appellant) in due course, before maturity and for value, by the said W. P. Galloway Company. The substance of the title-retaining notes or conditional sales contracts was set out and incorporated in the complaint, and copies thereof viere attached as exhibits to the complaint; In order to impress a lien upon the property, a summons and writ were issued upon the complaint, directing the sheriff of said county to take the property into his possession and hold same subject to the order of court. The summons and writ were properly served, and the property was left by the sheriff with, appellee.

Appellee interposed the defense that the title-retaining notes or conditional sales contracts were not negotiable instruments purchased by appellant in due course before maturity for value, that the light plant and pump did not operate satisfactorily, and that, in reality, there-was no complete sale, because, at the time the machinery was left at his home, the salesman who'was representing "W. P. Galloway Company, and who delivered the outfits, signed an agreement, written on the stationery of W. P. Galloway Company, to the effect that, in the event that' appellee should become dissatisfied with the outfits, or if he should not be in shape to meet the payments, the outfits would be removed from his premises without • charge or cost to him, and that, in pursuance of this agreement, he notified the appellant, as well as W. P. Galloway Company, tliat the outfits were not satisfactory, and that the same should he removed.

The cause was submitted upon the pleadings and testimony, at the conclusion of which both appellant and appellee asked peremptory instructions, whereupon the court withdrew the case from the jury and réndered judgment in favor of appellee, from which appellant has duly prosecuted an appeal to this court.

Appellant introduced in evidence the original orders signed by appellee for the lighting and pumping plants which were accepted by W. P. Galloway Company several days before the title-retaining notes or conditional sales contracts sued upon were signed. It also introduced a statement, signed by appellee, relative to his financial condition, which was made at the time the orders were signed. It also introduced the title-retaining notes or conditional sales contracts made the basis of the suit. It also introduced its assistant secretary and sales manager as witnesses, who testified, in substance, that it purchased the two title-retaining notes or conditional sales contracts from W. P. Galloway Company before maturity, paying $315 in cash for the one covering the Delco light plant and $97 in cash for the one covering the pumping plant; that, in the acceptance of said instruments, the only information appellant had concerning them was the provisions contained in the instruments themselves, the contents of the two orders for said plants, and the financial statement submitted by appellee to W. P. Galloway Company when he signed the orders.

It also introduced John V. Tedford as a witness, who testified, in substance, that he was the secretary of W. P. Galloway Company; that the orders, notes or contracts presented to him were the ones W. P. Galloway Company assigned to appellant before maturity for a valuable consideration; that E. H. Puryear was the salesman for W. P. Galloway Company, and that the only authority he had was to solicit orders for the Delco light products on the company’s regular order blanks; that he had no authority to make any agreements not embraced in the order blanks; that, when he went out to collect from appellee, he claimed to have a contract written on the company’s letterhead and signed by Mr. Puryear, to the effect that he might return the plants if they did not give satisfaction, or in case he was not able to pay for them; that he refused to show the contract to him; that appellee said in the course of conversation that the lighting plant was working fine, but that the pump was not working right.

Appellee testified in his own behalf,- in substance, to the effect that both plants were left with him by Emmett H. Puryear, as the representative of W. P. Galloway Company, for purposes of demonstration only, under a written agreement that they should be removed without expense to him in case he should become dissatisfied with them, or was unable to meet the payments; that the instruments sued upon were represented to him by said agent as receipts to show the company where the plants had been left; that they were long, and that he signed them without reading them, relying upon the statement of the agent as to their contents; that the written contract to remove the plants if he became dissatisfied with them was written upon a letterhead of the W. P. Galloway Company; that he never paid anything on the plants, although the instruments recite that he did; that the plant did not prove satisfactory; that the lighting plant would not carry the light the agent said it would, and that the pump would not work at all; that he notified the company to come and get the plants.

Appellant first- contends for a reversal of the judgment because the undisputed evidence shows that it was an innocent purchaser for value before maturity of negotiable. instruments .madje the basis of the suit. In-support of its contention-íthat the instruments sued upon .were, negotiable,-appellant cites §.7767 of ..Crawford & Moses’ Digest, defining negotiable paper. The.yfifth requisite- of a negotiable instrument under that section is , that it must be payable- to, order or. bearer. The instruments sued upon are lacking in that essential, and are not negotiable instruments. Since the instruments were not negotiable, but assignable only, appellant took them subject to all defects or infirmities available to the maker as a defense against the payee therein.

Appellant next contends for a reversal of the judgment because E. H. Puryear had no authority to enter into a written contract to the effect that the plants would be removed without expense to appellee in case they did not prove satisfactory. This contention is based upon the evidence of John V. Tedford, who testified that the authority of E. H. Puryear was restricted and limited to soliciting orders upon blanks of the company, subject to the approval of said company. Of course, if this was the extent of his actual or apparent authority, his subsequent written agreement would not be binding upon the company. The testimony introduced by appellee, however, tended to show that, in addition to soliciting the order, E. H. Puryear delivered and installed the plants and received the title-retaining notes or conditional' sales contracts. It also appears that the agreement to take the plants back, if not satisfactory to appellee, was written upon a letterhead of W. P. Galloway Company.

These facts and circumstances are sufficient to sustain the verdict and consequent judgment fixing liability upon appellant, under the doctrine of apparent authority. Both parties asked for an instructed verdict, whereupon the court took the case from the jury and rendered a judgment in favor of appellee. The judgment is therefore the same as the verdict of a jury, and must stand on appeal, if supported by substantial evidence under any view of the law. The law of apparent authority is as follows:

“Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably' prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.” 2 C. J. 573.

Where an agent, as in the instant case, took the order for pumping and lighting plants, delivered and supervised the installation of same, and took notes or contracts for the ■ purchase therefor, a reasonably prudent purchaser, in the exercise of diligence and discretion, would naturally suppose that the agent had authority to agree to take the plants back if they did not prove satisfactory.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Watkins v. Walls.
    Opinion delivered January 24, 1927.
    1. Landlord and tenant — lien for rent. — A landlord has a lien upon all the crops grown on the demised premises in any year for the rent accruing for that year, whether raised by the tenant or not, and regardless of any agreement between the tenant' and a subtenant for rent.
    2. Landlord and tenant — liability of subtenant. — Under Crawford & Moses’ Dig., § 6892, a subtenant and his crops are responsible to the landlord only for payment of the rent for the lands occupied by him.
    3. Mortgages — lien on subtenant’s crop. — A mortgage on all crops given, by a tenant for supplies furnished him by the landlord constitutes no lien on crops raised by the subtenant on land sublet to him.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    This appeal is prosecuted to reverse a decree denying appellant the right to a lien, either as landlord or mortgagee, upon cotton raised by a subtenant on a portion of the land rented by appellant to one Spellman and ' sold to Topi & Ivy,

      It is undisputed that appellant rented about one hundred and sixty acres of land to Spellman for one-fourth of the cotton and seed raised during the year 1924, and furnished certain money and supplies to him during the period to enable him to farm _the lands, and that Spellman was indebted to appellant for a balance due thereon of $800 and interest when this suit was commenced. Appellant also took a chattel mortgage, which was duly recorded, on certain other personal property of Spellman, for all crops grown on the land rented for the year 1924, to secure payment for advances made.
    About April 15 defendant, A. Wells, subleased a part of the land from the defendant, J. L. Spellman, appellant’s tenant, upon which he raised nine bales of cotton, which he sold to the other defendants, Topf & Ivy, for $1,203, and the defendant, A. Wells, paid the plaintiff $301, which is one-fourth of the amount received for the cotton as rent for the land rented from Spellman, appellant’s tenant. Topf & Ivy had no actual knowledge of the mortgage on the crop executed by Spellman, and no knowledge of any claim or lien of appellant on the cotton purchased by them.
    The other personal property included in the mortgage by Spellman to appellant, with the exception of a crop to be grown on the lands during 1924, was incumbered by mortgages and vendors’ lien notes for more than the value of the property, having priority over appellant’s mortgage, and rendering it worthless as a security except as against the crops grown on the lands. Appellant furnished no supplies to A. Wells, the subtenant, for the land on which the cotton in controversy was raised.

      McMillen é Scott, for appellant.

      W. R. F. Paine, for appellee.
   Kirby, J.,

(after stating the facts). It is not claimed that appellant furnished any supplies to appellee Wells, the subtenant, to .enable him to make or gather the crop raised on the lands sublet to him by Spellman, appellant’s tenant, and the testimony shows that the subtenant paid to appellant the rent due for the lands cultivated by him.

The landlord has a lien upon all the crops grown on the demised premises in any year for the rent that shall accrue for such year, without regard to whether the crop is to be raised by the tenant or not, and regardless of any agreement between the tenant and subtenant for rent. A person subrenting lands from the tenant, however, can only be held responsible for payment to the landlord for rent of such lands as are cultivated and occupied by him. Section 6892, Crawford & Moses’ Digest; Jacobson v. Atkins, 103 Ark. 91, 146 S. W. 133; Storthz v. Smith, 109 Ark. 552; Embry v. Neighbors, 139 Ark. 313, 213 S. W. 741.

It is not claimed that appellant, the landlord, furnished any supplies to appellee, the subtenant, to enable him to make the crop, nor is it disputed that the subtenant paid the rent due the landlord from the tenant for the lands occupied and cultivated by him, which discharged his entire liability to the landlord and released his crop from the landlord’s lien.

Neither could the chattel mortgage given by appellee, Spellman, on all the crops to be produced on the lands rented by him from appellant, constitute' a lien on the crops raised by the subtenant on that portion of the lands sublet to him, for supplies furnished by the landlord to the tenant, the tenant having no interest in such crop for more than the pro rata amount of the rent due the landlord therefor, which it is unlawful for him to collect even before final settlement with the landlord. Sections 6894-96, Crawford & Moses’ Digest.

It follows therefore that no error was committed in the rendition of the decree, which is affirmed.


text:
    Parker v. Williams.
    Opinion delivered January 24, 1927.
    Judgment — res judicata. — Where heirs did not perfect an appeal from a judgment of the circuit court reversing the judgment of the prohate court requiring an executrix to make an inventory and file accounts in a proceeding instituted by them, they cannot relitigate the same question in a subsequent proceeding instituted by the probate clerk to which the heirs became parties on their own motion.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judge;
    affirmed.
    statement by the court.
    This appeal is prosecuted from the judgment of the circuit court of Logan County, reversing a judgment of the probate court requiring Mrs. Georgia R. Williams, executrix, to file an inventory of the estate of M. A. Williams, deceased, and a settlement showing the disposition.
    It appears that appellee’s husband, the deceased, made a will disposing of all of his property, real and personal, to her, appointing her executrix thereof. She procured letters from the probate court of Logan County, but never filed any inventory of the estate nor settlements as executrix. No debts were probated against the estate. On petition of some of the collateral heirs of her husband, the appellants herein, stating that she had only a life interest in the property, under the terms of the will, and had not filed an inventory or any statement as executrix, she was cited to appear and show cause why she should not be required to do so. She responded, stating that these heirs had no interest whatever in the estate, which all belonged to her under the terms of the will, setting it out, and that, under its terms, she was not required to file an inventory or make a settlement; and stating also that all debts of the estate and expenses incident to its administration had been paid by her.
    The court, after the hearing, then made an order requiring her to file an inventory and account, from which she appealed to the circuit court, and, upon a hearing there, agreed to the statement of facts in the court below being also presented; and the court held that the petitioners, the heirs of M. A. Williams, Sr., deceased, had no such interest, at the present, in the personal property of said estate as will permit them to call on said executrix to file an inventory of the personal property of same, or make settlement of her affairs as such executrix; that the petitioners and other heirs of M. A. Williams, Sr., would probably be entitled to any portion of personal property, if any, of the estate remaining at the death of the executrix, “but that they cannot require, and the court will not require, the said executrix to filé an inventory o.f the property of said estate, or to file a settlement of the affairs thereof,” and adjudged the said executrix would not be required to file such inventory or make settlement.
    The heirs filed a motion for new trial, which, being overruled, they prayed and were granted an appeal to the Supreme Court, which, however, was not perfected. A nunc pro tunc order was later entered to the judgment as follows: “The court does not decide the question as to the title of the personal property after the death of the respondent, Georgia Ann R. Williams, nor to whom said personal property will go by virtue of said will, or by inheritance, that question not being passed upon or being decided by the court.”
    On March 4, 1925, a citation was issued against the executrix, requiring her to present an account for settlement at the next term of court and show cause why an attachment should not be issued for not having presented her accounts according to law. Citation was served, and the court by order approved it on March 7, 1925. Mrs. Williams filed response thereto, reciting that she had been cited by the probate court before to appear and make settlement, and had been ordered to do so, but had taken an appeal from such order to the circuit court, where the order of the probate court was reversed and judgment entered that she was' not required to make such inventory and settlement; that a motion for new trial was filed and overruled, and the petitioners given time to prepare the hill of exceptions, bnt that they failed to perfect the appeal to the Supreme Court, and she pleaded the judgment of the circuit court as final and res judicata of * the question raised. This response was overruled by the ' probate court, which again entered an order requiring the executrix to make settlement, and adjudged her guilty of contempt and ordered an attachment requiring her to appear on the 11th day of May and file settlement as executrix and submit to examination with - reference to accounts as such, and to show cause why she should not be punished for failure and refusal to file settlement as executrix, as required by law and the citation and orders of this court.
    The appellant was present in court in person and by counsel, and, in response to this order directing her to appear and file settlement, stated: “That all of the personal property belonging to said estate, under the terms of said will, became the property of this respondent, and that she has paid all the debts and obligations of said estate. ’ ’ That at a previous term of the court citation was issued directing her to file settlement as executrix, and, upon the issues raised and the citation axid petition therefor in response, copies of which were attached, a judgment was rendered by the court ordering and- directing her to file a settlement of said estate; that, upon appeal therefrom to the circuit court,' the judgment of the probate court was reversed, and the circuit court adjudged - that she was not required to file a statement of said estate. A copy of this judgment was also attached. Respondents allege that all the matters and things involved in this proceeding are res judicata, the issues being the same as in the former proceeding, all having been determined by the judgment of the circuit court between the same parties hereto; that the said judgment had not been appealed from, and was. still in full force and effect. This response was overruled by the probate court, which again directed the executrix to file settlement, and from the order she appealed to the circuit court, where, upon the hearing, the court held that the matter was res

      judicata, having been determined by it in the former decision, further found that the will did not require the executrix to file an inventory or settlement, and adjudged that she be not required to file'an inventory or settlement.
    The probate court was denied authority to require her to do so, and no other question was decided. . Then appellants, the same persons who were parties to the first proceeding- for a citation, applied to be made parties and allowed to'file a motion for new trial and prosecute an appeal to the- Supreme Court from the order and judgment-of the circuit court, which application was granted, and, the motion being overruled, this appeal is prosecuted therefrom.

      Evans & Evans, for appellant.

      Hill é Fitshugh and Kincannon & Kincaimon, for . appellee.
   Kirby, J.,

(after stating the facts). It is .contended by appellant that the court erred in allowing the plea of res judicata to be made and in deciding that the matters in controversy had been fully" adjudicated. The-law requires executors or administrators of estates, immediately after receiving their letters, to collect and take into possession the property, goods and chattels of the testator or intestate, make a true and perfect inventory thereof, and file additional inventories of any other personal property discovered after the first inventory is made, and to make annual accounts current to the probate court showing the administration of the estate.

This executrix was cited to appear, upon the petition of the heirs of her deceased husband, and make an inventory of the estate, it being alleged that she only had a life estate in the property, and also that she be required to file her account 'showing the disposition of the property. In her response she claimed to own the-property, under the terms of the will, setting out a copy thereof, and alleged that said heirs had no interest in it, and that she was not required to make either an inventory or accounts current showing the disposition of it.

The probate court held otherwise, but, on appeal, the circuit court reversed the order of the probate court and held that she was not required to file such inventory or accounts under the law and-the terms of the will. The heirs prayed an appeal from this judgment, claimed to be erroneous, but it was never perfected.

This proceeding was begun by the citation issued by the clerk of the probate court on his own motion, and afterwards approved by order of the- court, to require the executrix to make an inventory of the property of the estate coming into her hands and file accounts current showing the administration of it. The executrix denied that she was required, under the law or the terms of the will, to make such inventory or account for the property, since all the debts against the estate had been paid by her, and since she was entitled to the'estate under the terms of the will, which made no provision requiring the filing of inventory or account, and also pleaded res judicata, alleging the question had been determined and concluded by the above mentioned judgment of-the circuit court, from which no appeal had been taken, reversing the order and judgment of the probate court requiring the filing of such inventory and account.

The plea was not sustained, and the order requiring the filing of the inventory and account was appealed from to the circuit court, where the plea of res judicata was again made and sustained on the trial. Whereupon some of the heirs of M. A. Williams, the deceased, the same persons who had instituted the first proceeding to compel the making of an inventory and filing accounts by the executrix, were made parties, upon their own application, and permitted to file a motion for new trial and appeal from the judgment of the circuit court, upon its being overruled.

It can make no difference, in legal effect, that these parties, who began the first proceeding and failed to take an appeal from the judgment of the circuit court against them, did not initiate this proceeding for the same purpose as the first was commenced, since they were, on their

own motion, made parties to it in the circuit court and permitted to appeal from the judgment adverse to their interests. They thereby adopted it as fully* and are bound as conclusively, by the .judgment of that court as though they had begun the proceeding in the ■ first instance. Their motion for a new trial discloses that the parties to both proceedings are the'same, and they were not entitled to become parties to the suit, save to protect their rights by appealing from a judgment adverse to their interest and refusing to compel the executrix to file an inventory and account of the estate on which they claim an interest. No error was committed in sustaining .the plea of res judicata, the issue being practically the same and the parties really the same in both cases.

Davies & Davies v. Patterson, 137 Ark. 184, 208 S. W. 592; Butts v. Butts, 152 Ark. 399, 238 S. W. 600; Williams v. M. D. & G. R. Co., 133 Ark. 188, 202 S. W. 228; Brookfield v. Jonesboro Trust Company, 131 Ark. 356, 198 S. W. 697; Black v. Lenderman, 156 Ark. 476, 246 S. W. 876; Coleman v. Mitchell, ante p. 619.

It is not necessary to undertake to construe the will under which the executrix is acting, which has already been passed upon in Williams v. Williams, 167 Ark. 348, 268 S. W. 364. Nor do we determine what the rights of any of the parties may be upon termination of the estate bequeathed by its terms to the widow of the testator, the executrix herein. We find no error in the record, and the judgment is affirmed.


author: Mfhaffy, J.

text:
    Ward v. McIlroy.
    Opinion delivered January 24, 1927.
    1. Evidence — parol evidence to explain writing. — In a suit to enforce a written contract for the purchase of land, where the ■ contract does not describe the land intended to be conveyed, parol evidence is admissible to show what land was intended to be sold.
    2. Appeal and error — conclusiveness of chancellor’s finding.— On appeal in chancery cases, the Supreme Court tries the issues de novo, and the chancellor’s findings are treated as persuasive, and. will be reversed only when they are clearly against the preponderance of the evidence.
    Appeal from Washington Chancery Court; Lee Seamster, Chancellor;
    affirmed.

      Pryor, Miles & Pryor, for appellant.

      Walker d Walker, for appellee.
   Mfhaffy, J.

This suit was begun in the Washington Chancery Court, the plaintiff, J. N. Ward, stating that, on the 25th of February, he entered into an agreement for the purchase of lot 11, block 6, in the town of Fayetteville, Arkansas, and attached to the complaint is a copy of the agreement relied upon by plaintiff. The complaint further states that the agreement has been confirmed and approved by defendants, but that they have refused to convey lot 11, in block 6, and that said lot was the property of the Arkansas Cold Storage & Ice Company at Fayetteville, and that, under the terms of said agreement, plaintiff is entitled to said lot. That the defendants are trustees for the Arkansas Cold Storage & Ice Company, and have conveyed all the property of said company except this lot, and that the plaintiff is entitled to have a decree of specific performance directing defendants to convey to him said lot 11, block 6, in Fayetteville, Arkansas. The defendants answer, admitting that they entered into a written agreement, but deny that they sold to the plaintiff lot 11, block 6,inthecity of Fayetteville, and deny that the lot was owned by the defendants or the Arkansas Cold Storage & Ice Company at the time they made the sale. The answer further states that they sold and placed plaintiff in possession of all the real estate sold by them to the plaintiff, and that they did not sell or contract to sell lot 11. The agreement referred' to, and which was attached to the complaint, is as follows:

“Mr. J. H. Mcllroy, Trustee,
“Arkansas Cold Storage and Ice Co.
“Fayetteville, Ark.
“Dear sir: Confirming my proposition relative to buying the property of the Arkansas Cold Storage & Ice Company at Fayetteville and Springdale, Arkansas, we will buy the same and pay you eighty thousand dollars ($80,000) for the two properties, on approval of abstracts of the real estate and you making me a deed to J.N. Ward, trustee, you paying all bills of indebtedness and giving me a clear title to same, with the exception of grooving and tubing the cans, which contract is $600, which I will pay. Me retaining all old salvage on all machinery and pumps taken out of the Fayetteville plant, and I will allow you the option of buying twenty-five per cent., or $20,000 worth of the interest in the two properties sold, on the same basis of value that you sell same to me. This option good for 15 days.
“I will assume the payrolls account for the erection account for the workmen and labor on the Fayetteville plant from February 23, 1925, excepting the payroll of your regular employees and night engineer, which you will pay. We will all-ow you the use of the rooms in which your apples are stored at Fayetteville and Springdale plants until April 1,1925, you furnishing your fuel and paying your crew to operate the refrigerating machines to take care of the apples, we to take charge and complete plant at Fayetteville, beginning Monday, February 23, 1925, at our own expense. You to assign and transfer to me your contract with the Southwest Power Company, dated December 17, 1924, which I will assume and agree to carry out.
“I understand that the Springdale property, consisting of plant and equipment and the size of the lot, to be that part now occupied by the main building and 60 feet additional on the south side from the brick wall of said building, said 60 feet being of equal width across said lot, from east to west. In case there are any lawsuits pending affecting the title to said property, I agree that you may have the privilege of prosecuting said suits and perfecting the title of said real estate in whatever way is necessary to make good title, provided that you will give me a personal guarantee of yourself and F. P. Hall that you will hold me harmless by reason of any such liens or defect of title, until same are released or title perfected.
“This contract and agreement consists of two pages, executed in duplicate this February 25, 1925.
“J. N. Ward.
“We hereby acknowledge receipt of $1,000 paid by J. N. Ward on the above contract, which we have accepted and signed, on behalf of the Arkansas Cold Storage & Ice Company, this 25th day of February, 1925.
“ J. H. McIlroy, Trustee.
“Approved, F. P. Hall, Trustee.”

The testimony in this case shows that, after a survey was made and the controversy arose with reference to lot 11, the parties went ahead with the transaction and entered into an agreement and bill of sale to close the trade and to litigate the question as to the title to lot 11. The agreement and bill of sale is as follows:

“Whereas, the proposition of J. N. Ward to J. H. McIlroy, trustee, under date of February 25, 1925, relative to buying property of Arkansas Cold Storage & Ice Company at Fayetteville and Springdale, Arkansas, was accepted by J. H. McIlroy, trustee, and approved by F. P. Hall, trustee, and $1,000 was paid on said proposition.
“And whereas, by a warranty deed, the trustees under the agreement and declaration of trust dated May 15, 1922, and recorded in volume 207, at page 478 of the deed records of Washington County, Arkansas, have conveyed to J. N. Ward, trustee, lots 7 and 10, in block 6, in Fayetteville, Arkansas, and a part of lot 1 in block 7, in Fayetteville, Arkansas, more particularly described in said deed; also parts of lots 1 and 6 in block 1 of Holcomb’s Addition to the town of Springdale, particularly described in said deed.
“And whereas it is the contention of the said J. N. Ward that he is entitled to have conveyed to him lot 11 in block 6 in the town of Fayetteville under the terms of said proposition made by him and accepted by the said McIlroy and Hall, trustee:
“It is agreed between the said J. N. Ward and J. H. McIlroy, William J. Hamilton, F. P. Hall, W. H. McIlroy, Luke Powell and C. G. Dodson, trustees, that the .said J. N. Ward may accept said warranty deed and pay the purchase price of the said property without waiving in any way his right to litigate his. claim to said lot 11 under the terms of said proposition of February 25, and the said trustees hereby ratify and approve the acceptance of the said McIlroy and Hall of said proposition of February 25,1925, and hereby agree that, by payment of the purchase price, said J. N. Ward shall not waive any of his rights to insist upon a conveyance from the trustees aforesaid of said lot 11, and said trustees shall not waive any of their rights under said contract of February 25, 1925, by acceptance of the payment, except that théy shall not insist upon a repayment of the amount.
“And we, J. H. McIlroy, W. H. McIlroy, W. T. Hamilton, F. P. Hall, Luke Powell and C. G. Dodson, trustees, doing business under the name of Arkansas Cold Storage & Ice Company, by virtue of an agreement and declaration of trust, dated May 15,1922, hereby transfer, assign and sell to the said J. N. Ward, for and in consideration of the sum of one dollar and other good and valuable consideration, the personal property of every kind and character belonging to us as trustees or to the Arkansas Cold Storage & Ice Company, located on the real estate conveyed by the said warranty deed, and also all personal property which was contracted for by us prior to February 23, 1925, and which has since been delivered and placed on said real estate so conveyed.
“And it is agreed between parties hereto that in all things said proposition of J. N. Ward, as accepted by J. H. McIlroy and F. P. Hall, is confirmed and made a part of this contract, a copy of which proposition and acceptance is hereto attached and marked Exhibit A.
“It is further agreed that, in the event the said J. H. Ward shall bring a suit on said contract of February 25, 1925, for lot 11, we will enter our appearance to said suit, and that said suit may be tried on the merits as to whether or not, under said contract, he was entitled to said lot, without any claim or waiver on his part by paying the purchase price of said property, or any waiver on part of trustees by accepting it.
“In testimony whereof we have hereunto set our hands this 28th day of March, 1925.
“ J. H. McIlroy,
“W. H. McIlroy,
“F. P. Hall,
“Wm. J. Hamilton,
“C. G-. Dodson,
“Parties of the first part.
“J. N. Ward,
“Party of the second part.”

The only controversy in this case is as to whether appellees conveyed lot No. 11. The testimony on the part of the appellees tends to show that, before any action looking to the sale of the property was made by appellees to appellant, appellees had sold lot 11 in block 6 to Sanford. They not only testified to this, but testified that this fact was stated to J. N. Ward, appellant, when he was on the deal for the property. Witnesses for appellant deny this. The testimony is in hopeless conflict, and it would serve no useful purpose to set it out at length.

The appellant’s first contention is that the contract between the parties was in writing, and that parol evidence is inadmissible to vary or contradict the terms of the written contract. But does the oral testimony in this case vary or contradict the terms of the written contract? .The contract says: “Confirming my proposition relative to buying the property of the Arkansas Cold Storage & Ice Company at Fayetteville and Spring-dale,” etc. It would certainly require oral testimony to show what property the seller had, and oral testimony as to this does not vary the terms of the contract.

This court has recently said: “Parol evidence to vary the terms .of a written contract is one thing, such evidence to enable the court to say what the parties to the contract intended to express by the language adopted in making it is quite another thing. The former is not permissible. The latter is permissible, and is often absolutely essential to show the real nature of the agreement. Both rules are' elementary, and do not conflict in the slightest degree with each other. One prevents a written contract from being varied by parol evidence, either, in regard to what was said at the time it was made or prior thereto; the other aids in determining what the contract is when its language, either in its literal sense or as applied to the facts, is obscure. The one rule is to preservó the contract as expressed in writing; the other is a rule of construction to determine what the contract, as expressed, is, it being kept in mind' that the mutual intention of the parties, so far as the same can be ascertained, governs within the reasonable meaning of the language they chose to express it, and that rules of construction to discover it are not resorted to unless there is some ambiguity to be cleared up. A failure to keep in mind the wide distinction between varying a contract by parol evidence and resorting to such evidence in aid of its construction, often leads to error.” Brown & Hackney v. Daubs, 139 Ark. 53, 213 S. W. 4.

If the appellant went to Fayetteville and looked at the property, and it was pointed out to him, and he was told that lot 11 had already been either conveyed or contracted and he knew that this was not included in the property which appellees were offering to sell, then certain parol evidence would be admissible to show the particular property pointed out to him, and, when he made his proposition in writing for the purchase of the property of appellees, it would necessarily mean the property pointed out to him and the property both parties had in mind. We therefore think the court did not err in permitting oral proof to'enable the court to say what the parties to the contract intended to express by the language used.

Appellant’s next contention is thq,t the finding of the chancellor is clearly against the preponderance of the evidence. On appeal in chancery cases this court tries the issues de novo, and the findings of the chancellor are always treated as persuasive, and Ms findings will be reversed only when this court can be convinced that they are clearly against the preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160; Langston v. Hughes, 170 Ark. 272, 280 S. W. 374.

This court has also said in determining the issues of fact by this court in chancery causes: “No weight is given to the findings of fact by the trial court unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. * * The rule was early announced, and has been consistently adhered to, that the findings of the chancellor will not be set aside by this court unless they are clearly against the preponderance of the evidence.” Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.

The testimony in this case was conflicting, and, after a careful consideration of the same, we are unable to say that the findings of the chancellor are clearly against the preponderance of the evidence. The judgment is therefore affirmed.

Mr. Justice Humphreys did not participate in tMs case.


author: Mehaeey, J.

text:
    Fentress v. City National Bank.
    Opinion delivered January 24, 1927.
    1. Appeal and error — former appeal — law of case. — Where a case has been to the Supreme Court and been reversed, the law announced on the former appeal is the law of the case when it comes up on second appeal.
    2. Bills and notes — blue sky law. — In an action by the holder of note executed in violation of the Blue Sky Law (Crawford & Moses’ Dig., § 751 et seq.) evidence that the holder knew of the condition of the corporation for whose stock the note was given was immaterial, since the only issue was whether the holder knew that the note was given for stock sold in violation of the Blue Sky Law.
    3. Licenses — blue sky law. — Where a corporation issued and sold stock in violation of the Blue Sky Law (Crawford & Moses’ Dig., § 751, et seq.), and took the buyer’s note, such note was void in the hands of an assignee with knowledge.'
    4. Appeal and error — Conclusiveness oe verdict. — Where there is any substantial evidence to sustain a verdict of the jury on question of fact properly submitted to it, the verdict wall not be disturbed on appeal.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judgé;
    affirmed.

      Roy Gean, for appellant.

      Cravens <& Cravens and James B. McDonough, for appellee.
   Mehaeey, J.

This is the second appeal in this case. When the case was in this court on appeal first (City Nat. Bank v. Baum, 166 Ark. 18, 265 S. W. 648), this court held that the note was void, and a recovery could not be had unless the bank was an innocent holder thereof. The court stated: “It follows therefore, from the

decision in the Handle case, supra, that the payee in a note executed in violation of the Blue Sky Law cannot recover; but it also follows, from the case of German Bank v. DeShon, supra, that the right to recover on such a note will not be denied an innocent holder because the Blue Sky Law does not contain the declaration that contracts executed in violation thereof are void. The judgment of the court below will therefore be reversed, with directions to submit to the jury the issue whether the bank is an innocent holder thereof.”

When a case has been in this court and reversed, the law announced in the former appeal is the law of the case when it comes here on the second appeal.

“Propositions of law once decided by an appellate court are not open to reconsideration in that court upon a subsequent appeal or writ of error.” Brown v. Zinc Co., 179 Fed. 309; Hunt v. Illmois Ry. Co., 184 U. S. 77.

“An actual decision of any question settles the law in respect thereto for further action in the case.” Mutual Life Ins. Co. v. Hill, 193 U. S. 551.

“Where the facts appearing upon a second appeal are the same as those upon a former appeal, the legal effect of the facts is determined by the decision on a former appeal, which is the law of the case for the second appeal.” Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S. W. 393.

The facts in the present ease are substantially the same as the facts in the case heretofore decided by this court. It therefore follows that the law as announced in 166 Ark. 18, 265 S. W. 648, is the law of this case on this appeal.

It would be useless to set out the testimony at length. There was no dispute about the fact that the notes were given for stock issued by the corporation without having complied with the Blue Sky Law, and were therefore uncollectable, according to the opinion of this court, unless the plaintiff was an innocent holder. This was really the only issue in the case. Appellant offered to introduce evidence tending to show that the holder of the note had knowledge of the condition of the corporation selling the stock when appellee took the note. We think this was immaterial 'because, whether the corporation was solvent or insolvent, in good condition or bad condition, the note was uncollectable if the holder knew that it was given for stock which was issued and sold in violation of the Blue Sky Law. Appellant did not have to prove the condition of the corporation, did not have to prove any representations inducing him to purchase the stock. Even if the corporation had been solvent, and no matter how prosperous it may have been, if it issued and sold the stock in violation of the Blue Sky Law and took the note for said stock, the note was void, and, if the appellee knew these facts, it could not recover. It was admitted that the stock for which the note was given was sold in violation of the Blue Sky Law, and the court instructed the jury that the burden was upon the appellee to show that it was an innocent holder.

The only thing necessary for appellant to show, in order to entitle him to a verdict, was that the appellee knew that the note was given for stock of the corporation which had been sold in violation of the law. Appellant offered no proof tending to show that the appellee knew of any fraud, or knew that the note was given for stock. On the contrary, the appellee’s testimony tended to show that it was an innocent holder, and the question was submitted to the jury under instructions from the court telling the jury that the burden was on the appellee to show that it was an innocent holder. It was a question of fact submitted to the jury under proper instructions, and the jury found in favor of the appellee.

The appellant offered to show that he was approached by the secretary and treasurer of the Crystal Glass Company, solicited to buy stock, and that false representations about others purchasing stock and about the condition of the company were made to him, and that he took these statements into consideration when he bought the stock, but he did not offer any proof tending to. show that the appellee knew that the notes were given for stock issued in violation of the statute.

There was also some proof that the president of the hank advised one witness to not purchase the stock, but this does not tend to prove that he knew that the note which the bank held was issued .for stock. It would be useless to prolong the discussion, for, as we have said, it was a question of fact properly submitted to the jury, and, if there is any substantial evidence to sustain the verdict of a jury, it will not be disturbed on appeal. It therefore follows that the case must he affirmed.