text:
    Hornor v. Craggs.
    4-2709
    Opinion delivered June 27, 1932.

      Sevens & Mundt, for appellant.

      Moore, Baggett S Burke, for appellee.
   Butler, J.

Appellant, who' owns land in Cotton Belt Levee District No. 1, hereinafter referred to as the district, brought this suit against the' directors of the district, to restrain them as such directors from issuing and delivering bonds of the district in payment of, rights-of-way required for the relocation of certain parts of the system of levees Avithin the district.

The pleadings in the case disclose the folloAving facts: The district Avas organized by the county court of Phillips County under the provisions of chapter 109, Crawford & Moses’ Digest, and pursuant to the authority thus conferred the directors of the district have built twenty-four miles of levees alongythe west bank of the Mississippi River to protect the lands of the district from overfloAV by that stream. Prior to the passage of the National Flood Act by the Congress of May 15, 1928, the cost of the levees Avithin the district was borne as folloAA,'s: one-third by the district.and two-thirds by the Federal government. Since the passage of this act the entire cost of construction of levees along the front line of the Mississippi River from Cape Girardeau, Missouri, to “Head of Passes” is borne entirely by the Federal government, but the Federal act provides that the local levee districts shall provide, Avithout cost to the United States, all rights-of-Avay for levee foundations and levees. Recent surveys by the corp of engineers of the United States army, having supervision of levee construction, discloses that there are several miles of leAme Avithin the district Avhich avíII haAre to be relocated or set back on account of the caving banks of the Mississippi RiA^er, and tentative contracts have been made by the Federal government with Amrious contractors to build the levees so relocated, but, in accordance Avith the provisions of the flood control act above referred to, the Federal government has demanded of the district’s directors that they acquire, at the cost of the district, the necessary rights-of-Avay and foundations for such relocated levees. The damages to the landoAAmers A\diose lands must be taken for the purposes stated harm been adjusted between the district and the landowners, and the sum of money required for this purpose is $50,000. The district can pay these damages only by the issuance of the bonds of the district. It has no money available for this purpose at this time from any other source. On account of the general depression and the lack of a suitable market for securities of this character, the district is unable to sell these bonds except at a great discount, but the landowners have agreed to accept these bonds at par in payment of their damages. The requirements of the statute in the matter of procuring the assent of the landowners to the bond issue have been complied with.

The point raised in the landowner’s complaint is that the district has no authority under the law to issue and deliver bonds in payment of this right-of-way. A demurrer was filed to this complaint, and a demurrer was filed by the plaintiff landowner to the answer of the district, and the cause was heard upon these demurrers. The court sustained the demurrer to the complaint and overruled the demurrer to the answer, thus holding, in effect, that, under the allegations of the pleadings set out above, the district had and has the authority to issue its bonds for the purpose stated.

Full power to construct: the levee is conferred by chapter 109, Crawford & Moses’ Digest, title “Levees.” The power is there conferred not only to acquire necessary rights-of-way, but to pay the construction cost of the levees themselves, and pursuant to this power rights-of-way were acquired and the levee constructed. The power to construct and maintain these levees is not exhausted by their original construction, but is a continuing one, and incidental thereto the right exists under the statute to relocate and reconstruct levees, as the exigency of the case may require. It was so expressly decided in the case of West v. Cotton Belt Levee Dist. No. 1, 116 Ark. 538, 173 S. W. 403.

That case involved this identical district. The relocation of certain levees in the district had then, as now, become necessary on account of the encroachments of the Mississippi River, and there was involved in the former case the power of the district to assess and collect betterments to pay the cost thereof. The district there proceeded under the same statute which it has here invoked.

In holding that the district had the power to relocate the levees and to assess and collect betterments to pay for this new work, it was there pointed out that § 4938, Kirby’s Digest, (which is now a part of chapter 109, Crawford & Moses’ Digest) provides that it shall be the duty of the directors of the district to determine what work is necessary to protect the district from overflow and to do that work, and the acquisition of right-of-way, Avhich must be paid for, is a necessary part of this work.

Discussing the continuing poAver of the directors in this behalf, it Avas pointed out in that case that the eAmrshifting, yet always present, danger of OAmrfloAv makes it imperative that the directors of the district shall have the broadest, latitude in dealing with the situation, and for this reason the construction of the lerdee is never completed, as work is constantly necessary to be done on it for the purpose of accomplishing the results intended by the organization of the levee district, and it Avas there said that if the poAver Avere exhausted by a single exercise the purpose of the statute Avould be defeated.

It is pointed out that, Avhile chapter 109, Crawford & Moses’ Digest, authorizes the issuance of bonds, it is silent as to the manner of their disposition, and it is insisted therefore that the bonds must be disposed of pursuant to the poAArer there implied, which can only be to sell the bonds for cash to the highest bidder, and Avith the cash derived from such sale to construct the improvement.

We think hoAveAmr that the poAver of the directors is not thus limited. There may be, and no doubt there is, an implied limitation on the poAA-er of the directors in this behalf, Avhich avouIc! prevent them, at the suit of any landowner in the district from disposing of the bonds in a manner amounting to waste, but under the allegations of the pleadings before us this is not the case here. On the contrary, the bonds are being disposed of at par.

It is true the pleadings before us do not disclose how the right-of-way was acquired, whether by condemnation or otherwise, but this is an unimportant detail. The case of Young v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604, held that the act of February 24, 1905 (Acts 1905, page 143) was a general law and applied to all levee districts in the State, whether organized under general or special statutes. Under § 1 of this act (which appears as § 3933, Crawford & Moses’ Digest) the power is conferred upon the directors of all levee districts “to enter upon, take and hold any lands or premises whatever, whether by purchase, grant, donation, devise, or otherwise, that may be necessary and proper for the location, relocation, construction, repair or maintaining any line of levees” which may be necessary in promoting the purposes of the district.

There is no allegation that the landowners whose lands are to be taken for the new right-of-way are to be paid an excessive price for their lands, and the good faith of the directors is not questioned. The plaintiff landowner by this his suit questions only their authority and power to pay these damages with bonds even at par.

The case of Hopson v. Hellums, 108 Ark. 460, 158 S. W. 771, has no application to the facts in this case. It was there held that act 279 of the Acts of 1909 did not contemplate that-by a single offering a contract might be ■let for the construction of the proposed improvement, to be paid for in the bonds of the district, by a single bid which disposed of both the bonds and the work. The reason for so holding was that some bidders might desire to bid on the construction work who would not be able to handle a bond issue, while other bidders might not want their purchase of bonds hampered with the contractor’s obligation ■ to construct the improvement, and there would be therefore no common basis for these two classes of bidders.

Here we have no question of different landowners offering their lands for right-of-way purposes, and no question of competitive bids is involved. We have only the question of the power of the district to take the lands of a particular owner and to pay him therefor with bonds of the district. We think the district has this power, and the decree of the court below, which accords with this view, must be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    McDaniel v. Missouri State Life Insurance Company.
    4-2622
    Opinion delivered July 4, 1932.

      Ivan McMullin and Baker■ $ Gautney, -for appellant.

      Allen May, J. R. Bu/rcham, Charles Frierson, Jr., and Chas. D. Frierson, for appellee.
   Hart, C. J.,

(after stating the facts). The correctness of the judgment depends upon the construction to be placed upon the policy in connection with the application for it. The application was dated September 4, 1928, and the date of the policy was September 11, 1928. The policy was not delivered nor the premium paid until October 5, 1928. The premiums for the first and second years were paid. If .the eight months extended insurance is to be counted from the date of the policy, -September 11, 1930, it would expire on May 11, 1931, which was before the death of Mrs. McDaniel on June 4, 1931. If, however, the extended insurance is to be counted from the delivery of the policy, which did not take place until the' payment of the premium on October 5, 1928, then the insured would have one year thereafter with a grace period of thirty-one days in which to pay the second premium. Thus it will be Seen that the policy lapsed if the extended insurance period is to be counted from the date of the policy; and it would be in force at the time of the death of Mrs. McDaniel if it is to be counted from the date of the delivery of the policy.

It is sought to reverse the judgment upon the well-settled doctrine in this State, as well as elsewhere, that, where there are two inconsistent clauses in a policy of insurance, that one should be adopted which is more favorable to the insured. The reason is that policies of insurance are written on forms prepared by the insurance company, and the insured has no voice whatever in their preparation. Travelers’ Protective Insurance Association of America v. Stephens, ante p. 660.

As will be seen from our statement of facts, the policy itself provides that the first year’s insurance will end on the 11th day of September, 1929, and the insurance will be continued upon the payment of the annual premium of $28.62 on the 11th day of September in every year during the continuance of the policy. It is earnestly insisted that this provision of the policy is inconsistent with the clause of the application copied in our statement of facts. It provides that if the first premium is not paid in cash at the time the application is made, the insurance shall not take effect until the first premium thereon shall be actually paid to and accepted by the company during the life and good health of the insured.

In making this contention, reliance is placed upon the cases cited in the brief and upon case notes to 6 A. L. R., at page 774, and to 32 A. L. R., at page 1253. The case notes cited recognize a division in the authorities on this point. We do not deem it necessary to review them, however, for we are of the opinion that there is no ambiguity whatever when the whole of the provision of the application is considered. As we have just seen, it provides that, if the first premium is not paid in cash at the time the application is made, the insurance shall not take effect until the first premium has been paid to and accepted by the company or its duly authorized agent, and the policy delivered to and accepted by the insured during the life and good health of the insured. The provision, however, continues as follows, “but, in that event, the policy shall bear the date of its issuance, and all future premiums shall become due on such policy date, and all policy values and extended insurance shall be computed therefrom.”

The language quoted is plain and unambiguous. It is true that the policy itself would not take effect until it was delivered to the insured, and the first premium was paid by him while in good health. If the insured should die prior to the delivery of the policy, liability under the policy would not attach. But the insured, by agreeing that the policy should bear the date of its issuance in the same clause and that- all future premiums should become due on such policy date and all extended insurance should be computed therefrom, in express terms, about which there could be no mistake, fixed the date of the policy as the date from which the extended insurance should be computed. The parties were capable of contracting, and made a contract plain and unambiguous in its terms, and courts have no right by construction to give it a different meaning. McCampbell v. New York Life Company, 288 Fed. 465, certiorari denied in 262 U. S. 759.

The judgment of the circuit court was therefore correct, and it will be affirmed.


author: Butler, J.

text:
    Lewis Supply Company v. Galloway.
    4-2621
    Opinion delivered July 4, 1932.

      Jo M. Walker, for appellant.

      Moore, Daggett x& Burke, for appellee.
   Butler, J.

The Lewis Supply Company, hereinafter referred to as appellant, a dealer in automobiles in the city of Helena, brought suit in the municipal court of that city against appellee to recover from her $451.92, the balance alleged to be due upon the sale of an automobile. The balance of purchase money was evidenced by a number of small notes payable monthly and each within the jurisdiction of the municipal court. A number of these notes had been executed to-appellee’s order by a third party and by her indorsed to appellant.

Appellee filed an answer, in which she admitted the purchase of the automobile for the ‘agreed price of $870, and upon which there was due the balance alleged. By way of defense she pleaded that the automobile had been sold “under the usual ninety day dealer’s guaranty as to soundness of the car” and upon the express warranty that the car was “free from defective workmanship and mechanism.” She alleged that the car had a defective wheel, which collapsed and caused it to run off of an embankment, thereby being demolished and its value destroyed. She therefore denied that she was indebted to appellant in any sum.

Inasmuch as appellee claimed damages, on account of the alleged breach of the warranty, in a sum in excess of the jurisdiction of the municipal court, she filed a separate suit for the amount thereof in the circuit court, in which suit she prayed judgment for the payments made by her and for the return to her of her notes or the value thereof.

Upon an appeal being perfected from the judgment of the municipal court, that cause was, by consent, consolidated with the suit brought originally in the circuit court by appellee, and from a judgment in appellee’s favor is this appeal.

Appellee had the right to institute a separate suit to recover her damages; indeed, she could not have interposed this demand as a set-off without remitting so much thereof as would bring it within the jurisdiction of the municipal court. Kilgore Lbr. Co. v. Thomas, 95 Ark. 43, 128 S. W. 62.

According to the testimony on behalf of appellee, she was driving on one of the State’s highways, about twenty-five miles per hour when the rig’ht rear wheel collapsed, and the car ran off the road and rolled down an embankment, turning over twice as it did so. This completely demolished the car and totally destroyed its value. This wheel was later examined and its spokes were found to be defective. Witnesses testified that the spokes “were brashy and some of them were decayed,” and that they had been made of timber “mixed between the white and the heart of the timber,” and were worm-eaten.

The testimony was conflicting as to the cause of the wreck, that on the part of the appellant company being to the effect that appellee was driving at an excessive speed. The testimony was also conflicting as to the condition of the spokes, but a witness who testified as an expert on behalf of appellant in regard to the spokes stated that spokes were of three grades, A, B and C, the latter being the lowest grade, and as to the spokes of this car he stated, “That would be about ‘O’. If you could work one of those in without the man knowing it.”

Upon the whole case we think the testimony sufficient to support the finding that there had been a breach of the “general sales guaranty as to the soundness of the car” and of the special warranty that the car was free from defective workmanship.

After the demolition of the car it was examined by a representative of the appellant, to whom appellee stated: “That car is yours; it isn’t mine.” The car appears however after the wreck to have been of so little value that no one wanted it:

It is insisted that appellee waived the breach of the warranty through the following facts: As a part of the purchase price appellee executed to appellant four notes for $17.50 each, and paid one of those notes when due, but payment of the other- three was refused. These three unpaid notes were included in the suit in the municipal court, where judgment was rendered thereon. This judgment was paid by appellee. This was no waiver, as appellee was compelled to pay this judgment, and she was asking for her damages in a separate suit, and she did not elect to remit her demand to a sum low enough to be within the jurisdiction of the municipal court, thereby defeating a recovery in that case.

In the case of Parrett Tractor Co. v. Brownfiel, 149 Ark. 566, 233 S. W. 706, it was held not to be error to refuse an instruction, in substance, that an unconditional promise to pay the balance of the purchase price of goods with knowledge of a breach of warranty constituted a waiver of the breach, it being there said that where there is a breach of an express warranty, the vendee may rescind the contract, or he may affirm the contract, keep the property, and, when sued for the price, set up the false warranty by way of recoupment.

Appellee did not elect to keep the property, and so advised appellant. If there was, in fact, a breach of the warranty, and the jury has so found under the instructions correctly submitting that issue, appellee had the right to rescind the sale and to demand a return of so much of the purchase money as had been paid. This is the remedy which appellee elected to pursue, as soon as she was advised of the breach of the warranty, and she was within her legal rights in so doing. Neel v. West-Winfree Tobacco Co., 142 Ark. 505, 219 S. W. 326. This offer to rescind must be made within a reasonable time. Here it was made immediately, although it has been held that where the property is entirely worthless and wholly unfit for the intended use, an offer to return the property, in order to rescind, is not essential. The Neel case, just cited, so holds.

In the judgment from which this appeal comes it was adjudged that appellee recover the amount paid, and as to the notes held by appellant it was adjudged that they “are without consideration and are ordered canceled and held for naught.”

Under the verdict of the jury, which we find was returned upon testimony legally sufficient to support it, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Atlas Supply Company v. McAmis.
    4-2629
    Opinion delivered July 4, 1932.

      R. S. Dunn, for appellant.

      Evans <db Evans, for appellee.
   Humphreys, J.

Appellant intervened in an attachment suit brought by appellee against J. H. Flower in the circuit court of the Southern District of Logan County alleging that prior to the issuance and levy of the writ of attachment upon the property involved, J. H. ..Flower had executed a mortgage to it upon said property to secure an indebtedness of $1,554.88 and that its mortgage lien thereon was superior to the attachment lien. The intervention contained a prayer for the dismissal of the attachment and for the enforcement of the mortgage • lien against the property.

Appellee filed an answer denying the material allegations contained in the intervention and praying that its attachment be sustained, and that the property levied upon be sold to pay the debt J. H. Flower owed him.

The cause was submitted upon the pleadings and testimony, which resulted in a personal judgment against J. H. Flower in favor of both appellant and appellee for the respective amounts claimed by them, and a finding and judgment declaring appellee’s attachment lien upon the property superior to appellant’s lien.

This appeal is for the sole purpose of ascertaining whether the trial court erred in adjudging' appellee’s lien on the property paramount to appellant’s lien thereon.

The mortgage executed to appellant was not acknowdedged as required by § 1521 of Crawford & Moses’ Digest in order to give it any validity as to third parties. It omitted the -word “consideration” or words of similar import, and the attempted record of same constituted no notice to third parties of the existence thereof. Although good as between the parties thereto, as to third parties it was just as if it had never been executed or filed. Drew County Bank & Trust Company v. Sorben, 181 Ark. 943, 28 S. W. (2d) 730.

Again, had appellant’s mortgage been properly acknowledged, the filing thereof was fatally defective and was no notice to third parties of the existence thereof. In order to constitute notice to third parties of the existence of the mortgage by filing only, it was necessary that appellee or some one for him sign the following indorsement : “This instrument to be filed but not recorded.” CraAvford & Moses’ Digest, § 7384. Appellant’s mortgage had no such indorsement upon it.

The judgment of the trial court is therefore affirmed.


text:
    Little Red River Levee District No. 2 v. State.
    4-2691
    Opinion delivered July 4, 1932.

      Culbert L. Pearce, for appellant.

      Brundidge <$ Neelly, and Ilal L. Norwood, Attorney General, for appellee.
   Humphreys, J.

This is a suit by the State of Arkansas to quiet or validate its tax titles to certain lands in White County by curing the informalities and irregularities contained in the forfeiture proceedings by which it acquired its tax titles thereto. The authority for the suit is found in act No. 296 of the Acts of 1929, which was. construed by this court in the case of State v. Delinquent Lands, 182 Ark. 648, 32 S. W. (2d) 1061, to mean that the State, upon notice by publication, might confirm its tax titles in courts of equity against informalities or irregularities connected with the forfeiture and sale thereof to the State.

Appellant, in response to the notice by publication, intervened in the action alleging that it acquired title to certain of the lands (describing them) embraced in the suit under proceedings to enforce its lien for improvement taxes.

The intervention contains three paragraphs.

Paragraph one alleged that the sales of said lands to the State for State, county, and school taxes were totally void on account of irregularities in levying the taxes and sales of the lands for nonpayment of same for the following reasons:

(1) The proceedings of the levying courts in levying the taxes and in making appropriations thereof were irregular, null and void. (2) The assessors did not properly prepare, certify and file the lists of assessable lands with the county clerks, at the time and in the manner prescribed by law. (3) The collectors did not post notices in the respective townships, showing the days and places taxes would be collected. (4) The clerks did not comply with the requirements of the statutes in furnishing the collectors a complete list of delinquent lands in the county, giving the names of the owners, etc. (5) The tax collectors did not prepare, certify and file in the county clerk’s offices a list of delinquent lands, within the time prescribed by law. (6) Notices of sale were not published for the time and in the manner prescribed by law. (7) The county clerks did not record the lists of delinquent lands at the times and in the manner prescribed by law. ’ ’

Paragraph two alleged that the proceedings by which appellant acquired its tax titles to said lands for the nonpayment of improvement taxes were regular.

Paragraph three is as follows:

“The assessed values placed on said lands for State, county and school purposes were made at a time when lands were much more valuable than at this time. Said assessed values averaged more than $6 per acre while the áctual market value of said land at the time did not exceed $4 per acre. Under the laws and rules adopted by the State Tax Commission, said assessments should have been fixed at no more than one-half of the fair market value of said lands at the time of assessment. This would have reduced the assessed value from more than $6 per acre down to $2 per acre. All subsequent assessments were made, extended and carried forward in the same manner as the assessment upon which said void tax sales were made, and each and all of said assessments are therefore null and void for the same reasons.”

The prayer of the intervention is that on account of the void assessments and void sales of the lands for State, county, and school purposes, appellee be denied the right to quiet its title thereto; but, if allowed to do so, the sales be canceled and assessments reduced to fair and equitable amounts, and that appellant then be allowed to pay same, including subsequent taxes based upon the re-valuation.

Appellee demurred to paragraphs one and three of appellant’s intervention for the following reasons:

“Because said paragraphs do not state facts sufficient to constitute an ansAver to the complaint of plaintiff, neither do they set up facts sufficient to entitle it to the relief prayed for in said intervention.
“Because, if said lands were erroneously assessed, the intervener had a plain, adequate remedy at law, of which the intervener failed to avail itself, and cannot now take advantage of it in this proceeding.

The demurrer was sustained to paragraphs one and three of the intervention and appellant declined to plead further, whereupon the court dismissed the intervention and rendered a decree in accordance with the prayer of appellee’s complaint, from which is this appeal.

Appellant contends that the trial court should have overruled appellee’s demurrer to the first paragraph of the intervention because the State cannot confirm, under act 296 of the Acts of 1929, the title to tax lands acquired by it on void levies and void sales. The answer to this contention or argument is that the State is not attempting to do so. It is only attempting to validate or cure tax sales on account of “informalities and irregularities” in the levy of taxes or sales thereof. This is the extent of the State’s authority under the act. State v. Delinquent Lands, 182 Ark. 648, 32 S. W. (2d) 1061. It is true that appellant alleged in paragraph one of the intervention that the levy of taxes and sales were void. This allegation is a mere conclusion of law, and not sufficient on demurrer. Appellant assigns in said paragraph seven reasons for the invalidity of the levies and sales, but all of the reasons assigned are mere informalities and irregularities in making the levies or sales. These are the very defects the State can cure in confirming her tax titles; hence the demurrer to that part of the intervention attacking them was properly sustained. The only right of an improvement district claiming to be the owner of lands to defend against the confirmation of the State’s tax titles on account of informalities and irregularities in the levy and sale thereof is found in § 8 of said act, which is as follows:

“Any special improvement district claiming that there is owing it overdue taxes on any lands described in the State’s petition shall have a right to be made a party defendant to the State’s suit for the purpose of contesting the sale under which the forfeiture to the State was made. Any such improvement district, upon payment of the amount of taxes, penalty and costs for which the land was forfeited and all past-due taxes which would have accrued had the land remained on the tax books at the valuation against it immediately prior to the forfeiture, shall be subrogated to the State’s lien for the amount so paid, and such improvement district may include such amount due the district for taxes, and shall have the right to foreclose for such amount as though the same had been assessed against such land in favor of the improvement district.”

As appellant’s allegations in paragraph one of its intervention failed to comply with § 8 of said act by tendering into court the amount due the State thereunder, the demurrer thereto was properly sustained. The State’s right to levy and collect taxes for the support of government and to make its taxes a first lien on the property in the State cannot be questioned. The State exercised this paramount right in the passage of the following statute in 1879:

“Taxes assessed upon real and personal property shall bind the same and be entitled to preference over all judgments, executions, incumbrances or liens whensoever created.”

Act 269 of the Acts of 1929 provides a method by which to inforce this paramount or prior lien of the State for its taxes against the former owners of forfeited lands, including improvement districts, which acquired lands through foreclosure proceedings for the nonpayment of improvement district taxes.

Appellant also contends that the trial court should have overruled appellee’s demurrer to the third paragraph of the intervention on account of an overvaluation of lands for taxation. Chancery courts have no .jurisdiction to correct erroneous assessments. Appellant’s remedy was by appeal. Crawford & Moses’ Digest, § 9911; Cooley on Taxation, vol. 2, p. 1382; Desty on Taxation, vol. 1, p. 605; State v. Little, 94 Ark. 217, 126 S. W. 713; Pulaski County Board of Examiners cases, 49 Ark. 518, 6 S. W. 1; Clay County v. Brown Lumber Company, 90 Ark. 413, 119 S. W. 251; Wells Fargo & Company v. Crawford Co., 63 Ark. 576, 40 S. W. 710.

Appellant’s last contention is that act 296 of the Acts of 1929 is void because it impairs the obligation of contracts contrary to the provisions of the Constitution of Arkansas and the Constitution of the United States. The contract it says the act impairs is the lien accorded it by the act creating it for improvement taxes which declared the levee district’s assessments shall be a lien in the nature of a first mortgage. The act creating appellant district, in thus declaring its lien a first mortgage, had reference, of course, to contractual liens and not to the State’s paramount lien for taxes for governmental purposes. This right on the part of the State was a part of the district’s charter, and every contract it has made, as much so as if it had been written therein. Act 296 of the Acts of 1929 is valid, and it is not in conflict with art. 1, § 10, of the Federal Constitution and art. 2, § 17 of the State Constitution.

No error appearing, the decree is affirmed.


author: McHaney, J.

text:
    Safeway Stores, Inc. v. Ingram.
    4-2619
    Opinion delivered July 4, 1932.

      Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Sam T. and Tom Poe and George W. Clark, for appellee.
   McHaney, J.

Appellee sued appellant for damages, and in Ms complaint alleged that on the 22nd day of November, 1930, he purchased from appellant a piece of cheese loaf to be used and consumed as food; he ate a portion thereof and immediately thereafter became violently ill, sick at his stomach, causing a continuous emission therefrom for more that 12 hours, accompanied by a high temperature, followed by nervousness and nervous rigors; and since that time he has been unable to retain any substantial food in his stomach, but has been forced to exist on a very restricted diet; that said cheese loaf was unfit for human consumption, was poison and caused him to be stricken with ptomaine poison; that -the servant of appellant knew said food was unwholesome, and that he was buying same for food, and that he relied upon the recommendation of said servant that said food was wholesome and nutritious. Appellant denied all the allegations of the complaint. A trial resulted in a verdict and judgment for appellee against appellant in the sum of $3,000.

For a reversal of the judgment appellant first argues that the court erred in giving instructions 2 and 5 at the request of appellee for the reason, it is urged, that the action was based upon a breach of implied warranty that the food sold was fit for consumption, whereas the two instructions mentioned defined the duty of appellant to exercise ordinary care in the sale of food for human, consumption to s.ee that the food they sell is reasonably fit for the purpose for which it is intended, and that, if appellant’s employee knew, or, by the exercise of ordinary care, could have known, that the cheese loaf sold was unfit for human consumption, defendant would be liable. It is said that these two instructions are at least confusing to the jury, as instructions 1 and 3 given at appellee’s request are based on the theory of implied warranty, and that it permitted appellee to recover on a theory not alleged in the complaint. Only a general objection Avas made to instructions 2 and 5, and the objection now argued is not raised by a general objection. The instructions complained of were correct declarations of law, were not inherently wrong, and a general objection fails to raise the question now argued. This court has held that the retail dealer of food for immediate consumption may be liable for damages both for a breach of implied Avarranty and for negligence in failing to use ordinary care. Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58. Therefore the rule relating to breach of implied Avarranty does not relieve- appellant from the exercise of ordinary care.

Complaint is also made to instruction No. 9. This instruction told the jury, in substance, that, if appellee Avas suffering with stomach trouble at the time he ate the cheese loaf, but the unwholesome cheese loaf aggravated or accentuated his condition, causing him to suffer the disorder from which he complains, if any, still appellant Avould be liable. In other Avords, even though appellee might be sick, or his stomach in poor condition, appellant would have no right to sell him unwholesome food causing him to suffer ptomaine poisoning. We think no prejudice resulted to appellant in this regard. It defended on the ground, first, that the cheese loaf was pure and wholesome, and, 2d, that any illness suffered by appellee was caused by a prior condition of his stomach. No specific objection was made to this instruction, and we think it correctly states the law applicable to the facts in this case. Appellant Avould have no right to sell even a sick man poisoned food. See St. L. I. M. & S. R. Co. v. Steel, 129 Ark. 520, 197 S. W. 288, for similar rule. Moreover, the court instructed the jury in No. 3 given at appellant’s request, that if they believed from the evidence appellee suffered with a. stomach trouble at the time he bought the cheése loaf; that same was pure and wholesome; and that the trouble he suffered after eating it was due to his then condition and not to the unwholesomeness of the food, the verdict should be for appellant. We are therefore of the opinion no error was committed in this regard.

It is next urged that the testimony of Dr. Ponder, an expert witness for appellee, was incompetent. Dr. Ponder sat in the court room, heard appellee and Dr. Harrod, his physician, testify concerning his symptoms and was asked to state whether or not in his opinion appellee’s condition as testified to by him and Dr. Harrod could be attributed to food poisoning. He answered that it could. It is said this was error, and that to permit the witness to base his opinion upon the testimony of Dr. Harrod would deprive it of the right of pointing out such parts of Dr. Harrod’s testimony as would be improper in a hypothetical question. No objection was made to any part of Dr. Harrod’s testimony. There was no conflict in the testimony at the time Dr. Ponder testified. We are therefore of the opinion that this point is ruled adversely to appellant by the decision of this court in the recent case of Arkansas Baking Co. v. Wyman, ante p. 310.

The next assignment of error is that the court erred in giving at appellee’s request instruction No. 5-A, which reads as follows: “The court instructs you, notwithstanding evidence may have been offered seeking to impeach the testimony of the plaintiff, yet, notwithstanding such impeaching evidence, the jury are the sole and exclusive judges of the weight and credibility of a 11 the witnesses who have testified in this case.” It is said that this is an instruction upon the weight of the evidence and unnecessarily stresses the fact that the jury could disregard the impeaching evidence. Appellant introduced a number of witnesses who testified that appellee’s reputation for truth and morality was bad, and some of them said they would not believe him on oath on a matter in which he was interested. We do not think this instruction amounts to a comment on the weight of the evidence, and, while it mentions the fact that impeaching evidence had been introduced, the concluding part of the instruction is that “the weight and credibility of a]l the witnesses who have testified in the case” was for their exclusive determination. This is not a comment upon the weight of the testimony, nor do we think it emphasizes any particular testimony, as it applied to all the witnesses in the case. Cases cited by appellant holding that it is error for the trial court to emphasize any particular testimony do not apply.

It is finally insisted that the verdict is excessive and that the amount thereof resulted from certain improper remarks made by counsel for appellee, who stated that it was possible that an insurance company might have protected appellant against loss in this case. Objection was made to the language, which the court sustained and specifically instructed the jury to disregard it. In addition counsel himself withdrew the remarks. It is admitted this cured whatever error might have been committed in this regard, but that such statement, when taken in connection with the evidence of pain and suffering and loss of time, caused the jury to render a larger verdict than it might have otherwise been. We cannot agree with appellant in this regard. While the evidence is unsatisfactory and was in sharp conflict, we have reached the conclusion that there is substantial evidence to support the verdict which is not clearly excessive, and that the judgment must be affirmed. It is so ordered.


author: Smith, J.

text:
    Dunbar v. Howell.
    4-2473
    Opinion delivered June 6, 1932.

      J: V. Bourland, for appellant.

      Paul M. Lynch, for appellee.
   Smith, J.

On July 13, 1931, Mrs. Bessie Howell filed suit in the Sebastian Chancery Court, Fort Smith District, against E. C. Dunbar and his wife to foreclose three separate mortgages executed to her by them. Each mortgage secured a separate debt and conveyed a different lot as security therefor. Summons issued as is provided by law, and was duly served the day after the issuance thereof. After service of summons, a receive was appointed by order of the court to take possession of the mortgaged property. The receiver qualified as the law requires, and Collected certain rents, a report thereof being later made and confirmed by the court.

No answer was filed, and a decree was entered ordering" the foreclosure of the mortgages, and pursuant to this decree a sale was had by a commissioner named for that purpose-. The decree of foreclosure directed that the sales he made on a credit of three months and that the purchaser be required to give bond, with approved security, for the purchase money, with lien retained upon the property sold as security.

Tom Dunbar, a brother of E. C. Dunbar, was the highest bidder at the commissioner’s sale, and all three lots were sold to him. He failed to comply with his bid by executing’ the bond which the decree of sale required. The sale occurred at Fort Smith, and Tom Dunbar asked that he he given two- or three days in which to return to his home in Dardanelle and secure the execution of the bond which the decree of sale required. The commissioner refused to give the three days’ time requested, but did give three hours, and when Tom Dunbar failed to complete his bid by executing the bond required the commissioner, on the same day, reoffered the lots for sale and sold them to Mrs. Howell, the plaintiff in the action, for $500 each, or the total sum of $1,500, which was only $25 less than the sum total of Tom Dunbar’s bid.

The commissioner filed on October 3-, 1931, a report of the sale, which came on for confirmation at the same term of the court. Exceptions were filed to this report, which have been lost and do not appear in the record. There was filed a response to these exceptions, which does appear in the record.

An order was entered at the October, 1931, term of the court which recites.that on October 7, 1931, a day of that term, the exceptions came on to be heard, and that “this is the date and hour previously fixed for the hearing of said exceptions of which plaintiff and defendants had notice,” and that the plaintiff appeared, hut the defendants did not, and that “the cause is submitted upon the exceptions of the defendants and plaintiff’s response thereto, and the testimony of witnesses, and on the whole record, from all of which the court finds the issues of law and fact in favor of the plaintiff.” The testimony, which this order recites was heard by the court, has not been brought into the record. Upon this finding the exceptions to the report were overruled, and the report of sale was approved and confirmed.

Later a “motion for review and amendment” was filed by E. C. Dunbar, which recites that the motion is in the nature of a bill of review. This motion recites the various reasons why the report of sale should not have been approved, and, among others, that Dunbar had no notice of the hearing of the report. Testimony was heard on this motion and the response thereto, which has been 'brought into the record before us. It was alleged in the response that objections and exceptions to the report were made which had not been originally made.

Upon hearing this motion and the response thereto the court prepared a written opinion, which was incorporated in the decree rendered therein and from which is this appeal. This opinion contains the following recitals:

“OPINION OP THE COURT.

“Referring to the matter we had on hearing this morning in the case of Bessie Howell v. E. C. Dunbar et al, No. 8192; I have gone into the matter very carefully and read the motion to substitute exceptions for those filed in the case on the 5th day of October, 1931, and relying principally upon my own memory as to what the exceptions contained at that time, I shall be compelled to deny the motion to substitute the exceptions filed today for the ones filed at that time and alleged to have been lost.

“The original motion, or exceptions, in the case were filed some time near the 5th of October, and, upon proof being made on the 7th day of October that the attorney for defendants had been notified that there would be a hearing on his exceptions, the hearing was' had and proof taken with regard to all matters- in the exceptions as filed at that time. The exceptions were overruled, and, upon request of the defendant, an appeal to the Supreme Court was granted. At the same time the court signified that, while the court was in session, the case, on his motion, would be reopened and any additional testimony might be heard, but attorney for defendant said that would not be necessary; that he would just go on with the appeal.

“I find that the new exceptions proposed to be substituted for the original ones to contain many matters that were not in the original exceptions. The original exceptions were practically as testified to, I think, today by Mr. Wood — in substance, at least. I think he covered about all the issues raised at that time; so, that being the case, it is necessary that I deny the motion to substitute the substituted exceptions.”

The findings of fact there recited do not appear to be contrary to the preponderance of the evidence.

The original decree overruling the exceptions to the report of sale and approving the sale was rendered October 7, 1931, and the transcript on the appeal from that decree was filed December 21, 1931, and the record has been amended to bring before us the subsequent proceedings above recited. We have before us all the papers and proceedings in the cause save only the original exceptions to the report of sale, and we find no irregularity calling for the reversal of the decree approving the report of sale and ordering deed to be made pursuant thereto.

It appears that the decree of foreclosure was rendered fifty-one days after service of summons was had. In the meantime there had been several adjourned sessions of the court. The rendition of the decree under the facts herein stated was authorized by act 290 of the Acts of 1915, page 1081. This is an act entitled “An Act to regulate pleading and practice in the Circuit and Chancery Courts of the State of Arkansas,” and was construed in the case of Tuggle v. Holman Real Estate Co., 126 Ark. 25, 189 S. W. 169. It was there held (to quote a headnote in that case) that: “Under Kirby’s Digest, § 6188, as amended by act 290, p. 1081, Acts of 1915, the answer or defense to any complaint or cross-complaint must be filed before noon of the first day the court meets in regular or adjourned session where the summons has been served twenty days in any county in the State; and judgment by default may be rendered on any day of any regular or adjourned session when the defense has not been filed on or before noon of the first day of court twenty days after service of summons. (For good cause, however, the trial court has a discretion to allow further time.) ” See also, Southwest Power Co. v. Price, 180 Ark. 567, 22 S. W. (2d) 373.

As defendants were in default of an answer' when the decree of foreclosure was rendered, the decree was properly rendered. It may be said, moreover, that no valid defense to the foreclosure suit is alleged.

We are also of the opinion that the exceptions to the report of sale were properly overruled, and that no error was committed in approving the report. We do not know upon what testimony that action was taken, and we know only that testimony was heard which has not been brought into the record.

As an original proposition, the only reasons requiring discussion for not approving the report of sale are: (1) that the decree of foreclosure was prematurely rendered; (2) that the commissioner should have given Tom Dunbar the time requested to comply with his bid; (3) that the report was heard and confirmed without notice; and (4) that the sale was for a grossly inadequate price. But, as has already been stated, the decree was not rendered prematurely. There was no error in refusing Tom Dunbar the time requested to complete his hid. The terms of sale were provided in the decree of sale and in the notice thereof, and the purchaser should have been prepared to comply therewith. Had the time requested been given, and had the purchaser failed to comply with his bid, a resale might and probably would have been necessary. The law contemplates that the sale shall be made on the day advertised, and the execution of the bond on that day was a part of the sale, and the purchaser should have been prepared to execute the bond on that day. See § 41, chapter Judicial Sales, 35 C. J., page 29. The court found that the exceptions were heard at the time appointed for that purpose. And, as to the inadequacy of price, it suffices to say that the bid of Tom Dunbar for all the lots was only $25 more than the bid approved by the court.

Upon a consideration of the entire record, the decree appears to be correct, and it is therefore affirmed.

      Crawford & Moses’ Digest, §§ 1208, 1285. (Rep.)


author: Haet, C. J.

text:
    Harris (Lester) v. State.
    Crim. 3802
    Opinion delivered June 20, 1932.

      George T. Humphries and Oscar E. Ellis, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Haet, C. J.

Lester Harris prosecutes this appeal to reverse a judgment of conviction against him for grand larceny.

The principal assignment of error is that the evidence is not legally sufficient to sustain the verdict.

According to the testimony of O. C. Coekrum, at the time of the trial, he lived in the west end of Fulton County; and sometime before this, when he lived in the east end of Baxter County, four hogs were stolen from him. Upon investigation, he found his hogs in a field of Mrs. Harris and identified them by their color, earmarks, and a scar on the right foot of one of them. He instituted a replevin suit for the hogs against Richmond and Lester Harris and obtained possession of them. Several relatives and neighbors testified that they examined the hogs and knew them by their color, flesh marks and general appearance, and that they belonged to the prosecuting witness. Some of the witnesses testified that one of the' hogs had been caught in a steel trap, which left a peculiar scar on the right forefoot, by which they were able to identify the hog. They were full-blooded red Duroe hogs, and there were no other hogs of that kind and color in that part of the country.

The evidence on the part of the defendant tended to show that the hogs belonged to his brother, Richmond Harris, who had raised them. He testified that the earmark on the hog with the sear on the right forefoot was his own. He admitted, however, that the hogs were fonnd in the field of his mother, Mrs. Harris, and that he lived in Fulton County, Arkansas.

According to the evidence for the State, the hog had been recently stolen, and that .was a fact to be taken into consideration by the jury in determining the guilt or innocence of the defendant.

The prosecuting witness, in addition to the testimony he gave which we quoted above, testified that the hogs ranged from his home in Baxter County, across the line into Fulton County, near where they were found after having been stolen. It would make no difference whether the theft of the hogs occurred in Baxter County or in Fulton County. By the common law, larceny is a crime committed by the movement of the stolen property from one county to another, and the indictment may be had in any county in which the stolen property may be carried. State v. Alexander and Moore, 118 Ark. 357, 176 S. W. 315.

The evidence for the State tended to show that the hogs were stolen from the prosecuting witness, and soon afterwards they were found at the farm of the defendant’s mother, where he lived, in Fulton County, Arkansas, and that one of the hogs was in the defendant’s mark.

The evidence for the State, if believed by the jury, was sufficient to warrant a verdict of guilty. Dennis v. State, 88 Ark. 418, 114 S. W. 926; Starnes v. State, 128 Ark. 302, 194 S. W. 506; and Yelvington v. State, 169 Ark. 359, 275 S. W. 701.

Another assignment of error is that the court erred in instructing the jury. We do not deem it necessary to set out the instructions complained of. It is sufficient to say that the court defined larceny within the meaning of § 2490 of Crawford & Moses’ Digest. The court also explained to the jury that all persons present aiding and abetting in any felony may be deemed principal offenders and indicted and punished as such. This conforms to § '2311 of Crawford & Moses’ Digest; and there was no error in so instructing the jury, because, under the evidence for the State, the jury might have found that Lester Harris was present, aiding and abetting his brother, Richmond Harris, or that he took the hog with the scar on the right forefoot himself and carried it to his mother’s farm with the intention of stealing it. The jury might have believed that there was no reasonable explanation of his story of the stolen property, and that, if it was in his mark, it had been marked after it was taken by him. It is true that he testified that the earmark was his own; but the jury might have believed the prosecuting witness in this particular, who testified that he was familiar with the earmarks,0 and that one of the hogs was in the earmark of the defendant.

It is next insisted that the court erred in remarks made to the jury while they had the case under consideration. The record shows that, after the jury had been out for sometime considering the case, the court called them back into the courtroom and asked how they stood as to numbers. On being informed that the jury stood eight to four, he related an anecdote which the counsel for the defense construed as meaning that the minority should yield to the majority. The court then expressly told the jury that it did not mean that any juror should yield his honest conviction to the balance of the jury. On the other hand, the court impressed on them the fact that each juror should render a verdict according to his own conviction. The language of the court would remove any possible prejudice which might have resulted from the language first used.

We find no reversible error in the record, and the judgment must therefore be affirmed.


text:
    Harris (Richmond) v. State.
    Crim. 3803
    Opinion delivered June 20, 1932.

      George T. Humphries and Oscar E. Ellis, for appellant.

      Hal L. Norwood, Attorney General, Robert F. Smith and Pat Mehaffy, Assistants, for appellee.
   Smith, J.

This appeal is from the judgment of the Fulton Circuit Court sentencing appellant to a term of one year in the penitentiary for the larceny of four hogs, the property of O. C. Cockrum.

For the reversal of this judgment, it is first insisted that the venue was not proved. It has been many times decided that it is essential to prove the venue of a crime, that is, the place of its commission, in order that it may appear that the court trying the case has jurisdiction. It is ordinarily so easily proved that many prosecuting officers neglect to prove it except inferentially. It is, however, a fact which may be inferred from all the circumstances shown by the testimony, and we hold the venue to be proved when the place of the cominission of the crime appears from all the testimony in the case to have been within the county (or in the district of the county) in which the indictment was returned. Atwood v. State, 184 Ark. 469, 43 S. W. (2d) 70.

There is some uncertainty as to whether the hogs were stolen in Fulton County or in the adjoining county of Baxter. But we think the jury was warranted in finding from a preponderance of the evidence that the larceny was committed in Fulton County. The owner of the hogs testified that he lived two and one-half miles west of Yiola, which village we judicially know is in Fulton County, and an inspection of the maps of the county, with reference to the public surveys, shows that village to be about ten miles east of the line between Fulton and Baxter counties. The owner testified that his hogs ran at large “east of my place and near the county line, ’ ’ and, when asked when and where he lost the hogs, he answered in May or June, 1931, and “in this county and State.” As the trial was being had in Fulton County, the inference is inescapable that this is the place in which the witness said the larceny had been committed. We therefore hold that the venue was sufficiently proved.

There was a question as to the identity of the hogs and their ownership by Cockrum. But this question was submitted to the jury under correct instructions, and is settled by the jury’s verdict. According to the State’s testimony, one of the hogs had been caught in a steel trap, and still had the scar of the trap on his right front leg, and the marks of all the hogs had been recently changed. Without further recital of the testimony, we announce our conclusion that it was legally sufficient to support the jury’s verdict.

Among other instructions, the court gave one numbered 4, which reads as follows: “You are'instructed, gentlemen, that any person who stands by, aids and abets and encourages in the commission of a felony, being present, is deemed in law a principal, and- punished as such. ’ ’ Upon objection being made to this instruction, the court said: “The court withdraws this instruction from your consideration, in view of the fact that in this case, in the trial of this defendant, there is no evidence on which to submit that instruction. ’ ’

As an abstract declaration of the law, the instruction is correct, and no objection can be made except that it was abstract. But, even so, there was no prejudicial error in giving it, as it was promptly withdrawn upon objection being made to it, and this action cured the error. Middleton v. State, 162 Ark. 530, 258 S. W. 995.

The most serious question in the case relates to the condition of the record. As- certified in the original transcript, the judgment recited that the cause was heard before seven members of the regular panel and five jurors selected from a special venire, their names not being recited. Section 6378, Crawford & Moses’ Digest. Upon this point being raised, a writ of certiorari issued upon the suggestion of the Attorney General that there had been a diminution of the record. Upon the return of this writ the clerk of the Fulton Circuit Court has certified a judgment in proper form, which contains the names of the five bystanders, together with those of the seven members of the regular panel, it being recited in the judgment that all members of the jury had qualified as jurors and that the jury had been duly sworn.

In the reply brief of counsel for appellant there appears a copy of an affidavit of counsel for appellant to the effect that, as originally entered, the judgment did not recite the names of the jurors. It does not appear, however, when, where or with whom this affidavit was filed, and it has not been made a part of the record in this case.

The judgment of the circuit court cannot be impeached in this manner. We have before us, under the seal of the clerk of the Fulton Circuit Court, a judgment conforming to the law, and we must take it as being correct.

In the ease of Hagerman v. Moon, 68 Ark. 283, 57 S. W. 935, it was said: “Parties aggrieved by errors in the record of the circuit court, and desiring to have them corrected, should apply to that tribunal for correction, and not to this court. This is not the proper forum in which to institute such proceedings.”

In the case of Memphis Land & Timber Co. v. Board of Directors of St. Francis Levee District, 70 Ark. 409, 68 S. W. 242, it was said: “We must presume that the transcript of the case filed here is a true and perfect copy of the record. If incorrect or incomplete, it should have been corrected by appropriate proceedings. This has not been done, 'and we cannot go outside the record for facts, but must determine the case from the facts as they appear in the record.”

We have here no such question as wás presented in the case of Cochran v. State, 169 Ark. 503, 275 S. W. 895. There an indictment for receiving stolen goods as copied in the transcript, and, as certified by the clerk, failed to contain an allegation that the goods were received by the defendant with the intent to deprive the true owner thereof. An attempt was made by certiorari to correct the indictment to show that, as originally drawn, it contained an allegation that the defendant received the stolen goods with the intent to deprive the true owner thereof, and that by some means the allegation was omitted from the indictment when it was copied into the transcript. Evidence was taken before the circuit court and presented to this court, upon which we were asked to correct the record in this court, and to supply the omission in the indictment. We held that we could not do this, as the authority to supply a lost record or to correct a mutilated one is vested in the court in which the case was pending at the time the paper was lost or mutilated.

Here we are not asked to correct or supply a record. On the contrary, we are asked to ignore a record which has been properly certified to ns, and this we cannot do.

As no error appears, the judgment must be affirmed, and it is so ordered.


author: Mehaffy, J.

text:
    Cockrum v. State.
    Crim. 3797
    Opinion delivered June 20, 1932.

      J. Curtis Higginbotham, Eugene H. Schoonover and William J. Schoonover, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Mehaffy, J.

Appellant was convicted of the crime of perjury in Randolph County, Arkansas, and his punishment fixed at one year in the State penitentiary.

The indictment charged that appellant falsely swore and subscribed to an affidavit before a notary public who was authorized to administer oaths, and that said affidavit was to he, and was, used in a motion for a new trial in a cause in the Randolph Circuit Court. It charged that appellant swore in said affidavit that on one occasion Massey jumped up from his chair, kicked his so-called paralyzed leg into the air, and that Massey told appellant his leg was not hurt, and that it perfectly appeared to appellant that he was telling the truth, for he used it naturally enough, and walked without the slightest limp. It was also charged that the affidavit stated that the appellant positively knew that Massey was stalling and faking his injury; that he recovered from his slight injury long before the trial was held.

The indictment charged that the statements in the affidavit were false, and known by appellant to he false, and were feloniously, wilfully, corruptly and falsely made.

The motion for a new trial, in which the affidavit was used, was in the case of Massey v. Phoenix Construction Company. Massey had obtained a judgment and a motion for new trial had been filed in the Randolph Circuit Court, and the affidavit was used for the purpose of securing a new trial.

At the beginning of the trial the following occurred:

“Mr. Jackson: Tour Honor, I believe the- defendant admits the execution of the affidavit; that it was in Randolph County, Arkansas; that it was material to the issue; that Miss Cecelia Jansen was a qualified and acting notary public. I believe you admit all of the allegations except the truth of the statements made in the affidavit1?

“Mr. Schoonover: Yes, sir.

“The Court: As the court understands it, the only question is whether or not the statements made in the affidavit are true?

“Mr. Jackson: I believe that is right.

“Mr. Schoonover: Yes, sir.

“The Court: Then the only question is whether or not the statements are true or false. Proceed, gentlemen. ’ ’

There was therefore no evidence introduced except upon the issue as to whether or not the statements in the affidavit were true.

Massey testified that he was injured in his leg; that his leg and foot were paralyzed; that he could not use it, and testified that all of the statements in the affidavit made by appellant were untrue. A number of physicians and other witnesses testified corroborating Massey.

Bill Cockrum, the appellant, testified that he made the statements alleged in the indictment, and that they were true, and testified about when he saw Massey, saw him using his foot, and testified that Massey told him he was not injured. The appellant was corroborated in part by a number of witnesses. The testimony was in conflict, and it will not be set out in full.

At the close of the evidence, the appellant requested the court to direct the jury to return a verdict of not guilty. This request was overruled, and the appellant filed motion in arrest of judgment, and motion for new trial, both of which were overruled, and exceptions saved. The ease is here on appeal.

Appellant says there are three general errors urged for a reversal of this case: One, that the indictment is fatally defective; two, that the court erred in overruling appellant’s motion for an instructed verdict; three, that the court erred in admission of certain testimony.

It is first contended by appellant that the plain inference is that the petition for a new trial, in which the affidavit was used, was pending before the judge of the circuit court, rather than in the circuit court itself, and that the circuit judge would have no jurisdiction.

The indictment, after stating the cause which was pending in the Randolph Circuit Court, contains the following allegations: “That the said Randolph Circuit Court and the judge thereof, before whom the said petition for a new trial in said cause was pending, had jurisdiction of the persons and subject-matter in each of said causes.”

It is perfectly clear from the indictment that the cause in which the motion for a new trial was filed was in the Randolph Circuit Court, and it appears equally clear that the motion for new trial was pending in the Randolph Circuit Court, and the added words, “and the judge thereof,” do not indicate that it was not being heard by the court. Those words were unnecessary, of course, but they did not change the effect of the allegations that the petition was before the Randolph Circuit Court.

Appellant calls attention to 21 R. C. L. 262 et seq., and 30 Cyc. 407 and 411. These authorities have no application here.

Our statute defines perjury as follows: “Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths.”

It is contended, however, by the appellant that the authorities above referred to by him show that perjury cannot be predicated on an ex parte affidavit not required or authorized by law. A sufficient answer, however, to this is that the affidavit in this case was authorized by law.

Appellant then calls attention to a number of authorities holding in effect that it should be shown either that the affidavit was intended by the accused for. use in the proceeding with which it is sought to connect it, or that it was subsequently so used by him or some one with his consent.

The indictment in this case shows that the affidavit was to he so used, and was used, in a motion for a new trial.

Section 2590 of Crawford & Moses ’ Digest prescribes what shall be set forth in an indictment for perjury. It is as follows: “In indictments for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath or affirmation was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is charged or assigned, without setting forth any part of the record, proceeding or process either in law or equity, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same.”

The indictment in this case is sufficient.

Section 3013, Crawford & Moses’ Digest, provides: “The indictment is sufficient if it can be understood therefrom:

“First: That it was found by a grand jury of a county impaneled in a court having authority to receive it, though the name of the court is not accurately stated.

“Second: That the offense was committed within the jurisdiction of the court, and at some time prior to the time of finding the indictment.

“Third: That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce the judgment on conviction, according t'o the right of the case.”

Section 3014 provides: “No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the, merits.”

“The rule is that in indictments for perjury, the false testimony or statement for which the defendant is' indicted may be shown by the indictment to be material, either by direct averment or by allegation from which their materiality appears.” Loudermilk v. State, 110 Ark. 549, 162 S. W. 569.

The appellant next contends that the court erred in refusing his request for an instructed verdict. As we have already said, the evidence is in conflict, but Massey, the injured party, testified positively as to his injuries. Dr. J. C. Lamm testified that he examined Massey prior to the civil suit, and that his leg and foot were paralyzed; that, if the injury produced the condition he found, there was no way-to relieve the effects, and that he did not think he could have used the leg or moved it at all.

Dr. George W. Brown testified that he examined Massey and that his lower limb was paralyzed. Dr. M. A. Baltz testified to the same effect, as did Dr. H. H. Price. Dr. Reyburn also testified that Massey seemed to have paralysis of the lower limb. Dr. J. W. Brown testified contradicting appellant, Bill Cockrum. There was therefore substantial evidence tending to show that the statements made by Cockrum in the affidavit were untrue. Of course, whether they were true or not was a question of fact for the jury on conflicting evidence.

It is- next contended by the appellant that the court erred in admitting certain testimony. The first objection is to the testimony of R. J. Baker, and appellant says it was error to permit the witness to read all the affidavit to the jury. He contends that there was no necessity for allowing proof of the affidavit when appellant admitted making the same. There could not be any prejudicial error in this testimony, and it did not bring any foreign issues into the case.

It is also contended that the court erred in permitting the jury to examine Massey’s legs, and appellant says that the jurors are not experts. However, whether experts or not, the jury could have some idea of the extent of the injury, and also as to whether appellant or Massey was telling the truth in their testimony. It could not have resulted in any prejudice to the appellant. His only contention was that the statements made in the affidavit were true.

Objection is then made to the testimony of Mrs. Massey, who testified that her husband had been unable to use his limb. There was no error in this. The question was whether he was paralyzed, and this was competent testimony.

We have very carefully examined all the evidence, and we find no prejudicial error in the admission of testimony. The weight to be given to the evidence and the credibility of the witnesses are for the jury. We find no error, and the judgment is affirmed.


text:
    Tarleton Drainage District No. 15 v. American Investment Company.
    4-2676
    Opinion delivered June 20, 1932.

      Ingram & Moher, for appellant.

      G. W. Botts, for appellee.
   Butler, J.

In 1917 the appellant district was organized under the provisions of § 3607 et seq. of Crawford & Moses’ Digest for the purpose of constructing a drain in the Southern District of Arkansas County. After the original district was organized, the assessment of benefits levied and bonds sold, the commissioners discovered that other lands would he benefited by the making of the improvement, and, under the provisions of § 3614 of the Digest, caused the benefits accruing to said lands to be assessed reporting the same to the court with a description of the lands and praying that the assessments be confirmed and the district extended so as to include the lands described.

The county court caused the notice required by said section to he published, hut, on account of typographical errors in the notice furnished the printer, one tract of land was entirely omitted, and section 33, which was intended to be included, was described as section 3. The lands sought to be included and correctly described in the report of the commissioners filed with the court, were the west one-half of section 26, west one-half of southeast section 26, east one-half of section 27, all of section 33, northeast one-fourth of section 34, township 3, range 2 west, while the notice as shown by the proof of publication omitted the west one-half of section 26, and, instead of describing the whole section as section 33, described it as section 3. These errors appear not to have been noticed, for when the matter came on for hearing before the court the prayer of the petition was granted, the assessments confirmed and the boundaries of the district extended as prayed for in the report and the assessments extended against the lands therein described.

This order was made at the October term, 1919, of the county court. Afterward, on a petition filed by the commissioners, additional bonds of the said district were authorized in the sum of $3,000, and the revenues of the district as extended were pledged therefor. The annual installments of the assessment of benefits were extended on the tax books against the lands above described for the years 1919 to 1922, both inclusive, and paid by the landowners without protest. Inadvertently the clerk of the court omitted to extend the amiual installments of the assessed benefits on the tax books for the years 1923 to 1927, both inclusive. The original commissioners had moved away or died, and it became necessary to appoint a new board in the latter part of 1927. This board caused an audit to be made, and the omission above mentioned was discovered. By appropriate proceeding the delinquent assessments were-extended on the tax books, and, not having been paid, this suit was brought to recover, the taxes delinquent.

It was the contention of the appellees (landowners) in the court below that:

(a) The notice published in an annexation proceeding which left out one tract and misdescribed another was jurisdictional and fatal to all subsequent proceedings.

(b) That appellant’s right to subject the lands to the payment of said assessments was barred by the three year statute of limitation.

(c) That the failure of appellant to attach a certified list of the lands to its complaint was jurisdictional, and the court had no jurisdiction to hear and determine this cause.

The appellant contended in the court below and also in this court that the landowners were estopped from setting up the defense interposed in this suit because of their acquiescence in the order of the court extending the district and approving the assessments by having paid the installment of benefits for fonr years without protest.

The commissioners reported, and the court found, in 1919 that the contemplated improvement would benefit the lands of the appellees to the extent of the benefits assessed, and on a hearing of this case the preponderance of the evidence established the fact that these lands, becausee of their slashy and low and flat character, were valueless before the improvement was made, and that the drain constructed has made the lands fit for tillage. When the order was made including the lands of appellees in the district, the drain was extended so as to practically parallel the northeast quarter of section 34 and touch the south boundary of the west one-half of section” 26, and a lateral drain was made to approximately the center of section 33. This appears from a plat filed and introduced in evidence.

By reason of the annual installments extended against the lands of appellees for the years 1919 and 1920 as early as January, 1920, they had knowledge that the drains were being constructed so as to drain their property. An additional bond issue of $3,000 necessitated by the extension of the district was issued and sold, which became a burden not only upon the lands of the appellees, but upon all the lands of the district. It is clear therefore that they acquiesced in the action of the commissioners and accepted the benefits to their lands without protest.

As eárly as the case of Rector v. Board of Improvement, 50 Ark. 116, 6 S. W. 519, it was decided that property owners might estop themselves from questioning the validity of the organization of an improvement district by remaining silent while the improvements are being made when they had an opportunity to speak. In that case, the court said: “The assessment being made for the special benefit and improvement of his and the other real property in the district, he cannot stand by and receive the .benefit of the improvement in the enhanced value of his property, and refuse to pay his proportion of the assessment, on the faith of which it was made. Under such circumstances it would he his duty to speak and assert his rights, and, failing to do so, he would thereby waive them. Having failed to speak when, in the exercise of good faith, he ought to have done so, he will not he permitted to do so, when, in the exercise of the same good faith, he ought to remain silent.”

In Harnwell v. White, 115 Ark. 99, 171 S. W. 108, the court in effect held that mere silence of the property owner with respect to illegality of an improvement district would not estop him from subsequently questioning its validity; hut, where he does some affirmative act which induces persons to spend money or surrender substantial rights on the faith of such conduct, there is no reason for not applying the doctrine of estoppel to his conduct.

In Brownfield v. Bookout, 147 Ark. 555, 228 S. W. 51, it was held that where a person with actual or constructive knowledge of the facts by his words or conduct induces another to believe that he acquiesces in a transaction or that he will offer no opposition thereto, and the other, in reliance on said belief, alters his position, the former is estopped from repudiating the transaction.

The facts of this case bring it within the principle announced in the cases above cited. Here the appel-lees, because of the assessments made in 1920, had actual knowledge that their lands had been included in the district. They paid these assessments without protest when, if they desired to object, it was their duty to make such objection known and not to acquiesce by the payment of the annual assessments while the drains were being extended to their benefit, and when an additional indebtedness was 'incurred which would work an increased burden on the. remaining landowners of the district, if, after the improvement was made, the appel-lees might repudiate the extension of the district, having recognized its validity and permitted the work to progress to completion without demur.

'We are therefore of the opinion that the contention of the appellant is well taken. This makes it unnecessary to discuss the first question raised by appellee, and we consider only questions (b) and (c).

(b) It was the duty of the commissioners to see that the clerk extended the annual installments of the assessed benefits on the tax books. The lien for the assessments attached in 1919, when the order of the court was made approving the benefits to the lands as assessed by the commissioners, and the installment for any one year was due and payable within the period of time in that year in which the general tax for the preceding year would have been payable. Section 3618, Crawford & Moses’ Digest. The annual assessment payable in 1923 therefore would be due and payable within the period from the first Monday in January to and including the 10th day of April, 1923, and became delinquent after said last mentioned date and thus for each of the years succeeding. As no suit for the collection of delinquent taxes shall be brought after three years from the date the same became delinquent (Act 506, 1923, § 2), it follows that the instant suit is barred against all of the taxes which became delinquent three years before the suit was instituted, and appellees’ claim in this particular should be sustained. In this connection we do not agree with the contention of the appellant that the installment for any one year was not due and payable until the year following, but think the language of the act makes it clear that the installment for any one year is payable in that year within the regular tax paying time and not in the following year. Tallman v. Board, etc., 185 Ark. 851, 49 S. W. (2d) 1039.

There is no merit in the contention made by the appellant that the question of limitation was not raised • in the court below. The complaint as amended showed on its face that the assessments due for the years 1923-4-5-6 were delinquent for more than three years before the filing of the complaint and barred. Therefore the question of limitation could be raised by demurrer. This was done, and the decree recites that the cause was submitted upon the pleadings and testimony and that the demurrer was overruled.

(c) We also find no merit in the contention of the appellees that the complaint in the instant case was insufficient in that it failed to have attached to it a certified list of the lands delinquent. The record shows there was such a list attached to the amended complaint to which answers were made by appellees. See also Moore v. Long Prairie Levee Dist., 153 Ark. 85, 239 S. W. 380.

It follows from the views expressed that the decree of the trial court must be reversed, and the cause remanded for further proceedings in accordance with the principles of equity and with this opinion.


author: Hart, C. J.

text:
    Cooper v. State.
    Crim. 3808
    Opinion delivered July 11, 1932.

      D. H. Howell and Partam & Agee, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Hart, C. J.

Chester Cooper prosecutes this appeal to reverse a judgment of conviction against him for grand larceny rendered upon the verdict of a jury.

The principal assignment of error is that the evidence is not legally sufficient to support the verdict. According to the testimony of B. L. Hodges, he lived in Van Burén, Crawford County, Arkansas, for forty-one years, and was in business there. On January 4, 1932, he purchased a license tag for an A model four-door Ford sedan, and paid $20 for the tags. The tags or plates were taken from his car and later recovered. He first missed them from his car in Van Burén, where it was parked in front of his store. He frequently drove his car from Van Burén to the city of Fort Smith, and missed his license tags or plates about the first of February, 1932. He had washed his car a few days before and did not miss the license plates then. He thinks he would have missed them if they had not been on the oar.

According to the testimony of the sheriff and one of his deputies, they found the license plates or tags in the car of Chester Cooper in Van Burén, Arkansas, soon after they had been stolen. There was a Texas license on the car in which they were found. He examined the car because he went to it to arrest Cooper on another charge. According to the testimony of Raymon Irvin, he sold the car to appellant about January 10, 1932, and there were no license tags or plates for that year on it. The sheriff also testified that he saw appellant’s car before he left there on the first of February, 1932, and it did not have any license plates on it. The appellant told him when arrested that the Texas plate was on the ear when he bought it. The trial of the cáse was had on the 24th of March, 1932, and the sheriff and his deputy both testified that they had found the license tags in the appellant’s car in the city of Van Burén, Crawford County, Arkansas, about four or six weeks before. No evidence was offered in behalf of the appellant.

The evidence was legally sufficient to support the verdict. This court has held that unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn, and constitutes legally sufficient evidence of guilt, although it is improper for the trial court to give an instruction as to its sufficiency. Yelvington v. State, 169 Ark. 359, 275 S. W. 701; and Howard v. State, 185 Ark. 132, 46 S. W. (2d) 31.

But it is insisted that the venue was not proved because the prosecuting witness admitted that he frequently drove his car over to Fort Smith, and the license plates might have been stolen there. In the first place, the evidence of the prosecuting witness shows that he first missed the license plates in front of his place of business in Van Burén, Crawford County, Arkansas, and that he had washed his car a few days before, and that he would have noticed then that the license plates were missing if such had been the case. Then, too, the jury might have inferred that, if the license plates had been stolen in the city of Fort Smith, highway officers would have noticed that he was driving a car without license plates when he went home. Hence we are of the opinion that the evidence was legally sufficient to warrant the jury in finding that the license plates were taken from the car in Van Burén.

However, it would not have made any difference had they been stolen in Sebastian County. The reason is that larceny is a crime committed by the movement of the stolen property from one county to another, and the indictment may be had in any county in which the stolen property may be carried. State v. Alexander and Moore, 118 Ark. 357, 176 S. W. 315, and Harris v. State, ante p. 6. The theft of automobile license plates costing more than $10 is grand larceny. Cowan v. State, 171 Ark. 1018, 287 S. W. 201.

It is next insisted that the court erred in giving on its own motion instruction No. 5. The court gave to the jury, on its own motion, five instructions, and instruction No. 5 contains five paragraphs. It instructs the jury upon the questions of presumption of innocence, reasonable doubt, and credibility of the witnesses. It is earnestly insisted that the giving of the instruction constitutes reversible error because it is framed in five paragraphs, and that each of them should be considered a separate instruction, and that, when this is done, the last paragraph constitutes reversible error because it does not instruct the jury on the question of reasonable doubt. We do not agree with counsel in this contention. The issue in this case was simple. In another paragraph of instruction No. 5, the court fully instructed the jury on the questions of the presumption of innocence and reasonable doubt. There could be no grounds for thinking that the mind of any reasonable man would be misled by the instruction.

It is next insisted that the court erred in refusing to give, at the request of the defendant, instruction No. 3, which reads as follows: “You are instructed that the defendant is not charged with receiving stolen property, and, even though you find the tags were stolen by some person and later received by the defendant^ it will be your duty to acquit the defendant under this indictment. ’ ’

We do not think there was any error in this regard. No evidence whatever was introduced by appellant. The sole question presented to the jury was whether the evidence adduced by the Staté was legally sufficient to warrant the jury in convicting appellant of larceny. There was no evidence in the case whatever upon which an instruction as to receiving stolen property could be predicated. The instruction was wholly abstract, and was warranted to mislead the jury. For the reasons given, the case of Thomas v. State, 175 Ark. 279, 298 S. W. 1021, relied upon by counsel for appellant, is not in point, and has no application to the facts in the case at bar.

Therefore the judgment will he affirmed.


text:
    East Arkansas Lumber Company v. Moss.
    4-2637
    Opinion delivered July 11, 1932.

      L. Hunter and Carl L. Hunter, for appellant.

      Ward & Ward, for appellee.
   Hart, C. J.,

(after stating the facts). It is first insisted by counsel for the defendant that the great preponderance of the evidence shows that the accident occurred wholly on account of the negligence of the plaintiff, and that the trial court erred in not granting the defendant a new trial. This may he true, and still there is no reversible error on this account. It has been held repeatedly to be the duty of the trial court to set aside the verdict and.grant a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence. On the other hand, after the jury has weighed the evidence, and the trial court has given its approval of the finding of the jury by refusing to grant a new trial on the ground that the verdict is contrary to the evidence, it is the duty of this court to uphold the verdict where there is any evidence of a substantial character to support it. St. Louis, Southwestern Railway Company v. Ellenwood, 123 Ark. 428, 185 S. W. 768; and Chalfant v. Haralson, 176 Ark. 375, 3 S. W. (2d) 38, and cases cited.

The testimony of the plaintiff was as to matters about which she had personal knowledge. She testified that the truck of the defendant was driven so that it collided with her car in which she was sitting and which was parked in a driveway on the premises of the defendant corporation, where she had been on business. She testified that the extension bed of the truck hit her car before her husband had started to move it, and that the collision knocked off the knob of the door next to which she was sitting and broke her arm, which was lying on top of the lowered window of the door of the car. It is insisted by counsel for the defendant that it was a physical impossibility for the accident to have happened in this way, but the testimony of plaintiff shows that, if her arm was lying in the position that she indicated to the jury it might have been, and was struck by the extension bed of the truck of the defendant, which was being driven through the driveway by one of its servants. Her testimony warranted the jury in finding a verdict in her favor on the question of the negligence of the defendant. It cannot be said as a matter of law that she was negligent in sitting in her car in the driveway of the defendant’s place of business with her arm extending to some extent beyond the window of her car. The question of her contributory negligence in this regard was for the jury. Therefore we find that the evidence was legally sufficient to warrant the verdict. Wells v. Sheppard, 135 Ark. 466, 205 S. W. 806; and Kittrell v. Wilkerson, 177 Ark. 1174, 9 S. W. (2d) 788.

It is next insisted by counsel for the defendant that the judgment must be reversed because one of the jurors was related to the plaintiff within the prohibited degree of consanguinity. One of the defendant’s grounds for a new trial was that one of the jurors was related to plaintiff’s counsel within the degree of consanguinity, disqualifying him as a juror, and that such fact of relationship was not discovered by the defendant until after the verdict had been returned and judgment rendered. It is insisted that the juror was disqualified because it is generally known that in damage suits of this sort the attorney of the plaintiff has a contingent fee. There is no proof of this, however, in the record. There is no evidence in the record that the juror was asked questions for the purpose of ascertaining his qualifications. A new trial will not be granted on account of the disqualification of the juror by reason of the relationship to the appellee where the bill of exceptions does not disclose that on the voir dire any questions were asked as to relationship of the jurors to the parties. Fones Bros. Hardware Company v. Mears, 182 Ark. 533, 32 S. W. (2d) 313, and cases cited.

A mere statement in a motion for a new trial that questions were asked the jury and answers made, with no showing in the record, and no evidence supporting the motion for a new trial, is insufficient to raise a question as to the juror’s disqualification. Van Fleet-Ellis Corporation v. Higginbotham, 182 Ark. 812, 32 S. W. (2d) 800.

We find no reversible error in the record, and the judgment will therefore be affirmed.


author: -McHaNey, J.

text:
    Whitlow v. Rogers Wholesale Grocery Company.
    4-2597
    Opinion delivered July 11, 1932.

      Duty & Duty, for appellant.

      Earl Blansett, for appellee.
   -McHaNey, J.

Appellee brought this action against R. JEL Whitlow, now deceased, in which his administrators have been substituted as appellants, to recover the value of certain merchandise sold and delivered to the Sleepy Yalley Hotel, at Monte Ne, near Rogers, Arkansas. Prior to the sale of the merchandise, Whitlow had conveyed the property to his son, but continued to handle it as if he owned it, and contracted" with one Charles Fredericks to operate the hotel, together with a golf course and swimming pool, for one-half the net earnings. Fredericks entered into possession, made certain repairs on the hotel, named it the Sleepy Yalley Hotel, and opened the account with appellee May 2,1930. The account continued to August 26, 1930, during which time numerous purchases were made by Fredericks and five credits given for payments made by him, leaving a balance due, exclusive of interest, of $207.19. It is shown that credit was extended on the credit rating of Mr. Whitlow, but there is no evidence in this record that either he or Fredericks suggested to appellee any connection of Whitlow with the operation of the hotel. Appellee made no inquiry of either as to whether Whitlow would he responsible for the goods, but simply assumed such to be the fact because it was well known that he was the owner of the hotel property.. Liability of Whitlow was and is asserted on the ground that he permitted Fred-ericks to hold him out to the public as principal and that Fredericks was Ms agent in the operation of the property. This claim is based on the fact that the latter was put in possession, operated the property for a time under the name “Sleepy Yalley Hotel, E. H. Whitlow Estate. C. Fredericks, Manager.” One or more signs were placed along’ the highway reading in the upper part, “E. H. Whitlow, Estate. Charles Fredericks, Manager, ’ ’ and underneath ‘ ‘ Sleepy Valley Hotel. ’ ’ Advertisements were placed in the Eogers paper to the same or similar effect. A trial resulted in a verdict and judgment against Whitlow for the amount of the account with interest.

For a reversal of the case, it is insisted by counsel that the court erred in refusing to direct a verdict in Whitlow’s favor because there was no substantial evidence to support it. In this we think counsel are correct. The trial court permitted 'the case to go to the jury on the theory that Whitlow held Charles Fredericks out to the public, or permitted Fredericks to hold himself out as the agent of Whitlow to incur debts. The fact that Whitlow owned the property and that Fredericks operated it would not of itself be sufficient to establish the relation of principal and agent. With reference to the signs and advertisements in which Whitlow’s name appeared in connection the word “Estate” and with “Charles Fredericks, Manager” was not sufficient of itself to show this relationship. Whitlow denied that he had anything to do with the signs or advertisements, knew nothing about them, did not authorize Fredericks to put them out or to use his name in connection therewith; that he did not see the advertisements nor authorize their publication; that he had nothing to do with the operation or conduct of the hotel. This evidence is undisputed, but it is insisted that the above matters were sufficient to take the case to the jury on the question of whether he permitted Fredericks to hold himself out as his agent. The testimony relating to the signs and advertisements was admitted over Whitlow’s objections and exceptions, and it is now urged that it is incompetent in the absence of a showing of knowledge by Whitlow. We pass that question by as we have reached the conclusion that, even though it be competent, it is insufficient to establish a holding out of Fredericks as his agent. It would have been a simple matter for appellee to have made inquiry of either of the parties as to Whitlow’s connection, if any, with the operation of the hotel. This was not done. A reasonable construction of the signs and advertisements is that the property was known as the R. H. Whitlow Estate, and that Fredericks was the manager. With only such information, we think it would be the duty of those seeking to hold the former for the debts of the latter to make further inquiry as to the actual relationship existing between them. In U. S. Bedding Co. v. Andre, 105 Ark. 111, 150 S. W. 413, this court held that one who deals with an agent is put upon notice of the limitations of his authority, must ascertain what that authority is, and, if he fails to do so, he deals ivith the agent at his peril. In that case they were dealing with an agent, a traveling salesman. Here the effort is to show agency by estoppel. For a distinguishment of the difference between implied agency or implied authority of a known agent and agency by estoppel, see 2 C. J. p. 444. Fredericks at no time represented to appellee that he was Whitlow’s agent, nor did Whitlow so state, but the relation was assumed from the facts stated.

We have reached the conclusion the evidence was insufficient, and that the court erred in refusing Whit-low’s request for a directed verdict.

Reversed and remanded for a new trial.