text:
    Blume v. Lightle.
    Opinion delivered October 1, 1928.

      George J. Crump and John E. Miller, for appellant.

      Brundidge & Neellg, for appellee.
   Hart, C. J.,

(after stating the facts). It is insisted by counsel for appellants that, under the evidence adduced in favor of appellees, appellants were renting the property from month to month, and that, under the circumstances, they were entitled to thirty days’ written notice to terminate the tenancy. Reece v. Leslie, 105 Ark. 127, 150 S. W. 579. The undisputed evidence shows that appellants did not receive thirty days’ written notice to terminate the tenancy, and that there was no agreement between the parties for a less notice. Hence they insist upon a reversal of the judgment.

The circuit court, however, proceeded upon the theory that, under the evidence, the jury might find that appellants had waived the thirty days’ written notice which is necessary to the termination of a tenancy from month to month, in the absence of an agreement between the parties for a notice of different time. It is true, i>s insisted by counsel for appellants, that, in the case of a tenancy from year to year for a term of years, six months’ notice is required. Peel v. Lane, 148 Ark. 79, 229 S. W. 20, and Jonesboro Trust Co. v. Harbaugh, 155 Ark. 416, 244 S. W. 455. Appellants insisted upon having six months in the present case. Hence the court correctly submitted to the jury the question whether or not they had not waived the thirty days’ notice required in a tenancy from month to month by refusing to vacate the premises unless a six months’ written notice was. given, as is required in a tenancy from year to year.

In Wood v. Davenport, 156 Ark. 598, 247 S. W. 69, this court held that, where a tenant from month to month, on the sale of the premises asserted the right to hold for a year from the time of his contract, and refused to move until the expiration of that term, there was a disclaimer of the landlord’s right to terminate the tenancy, and formal notice was not necéssary. The court said:

“The notice of the termination of a lease may be waived by the tenant, and a disclaimer of the landlord’s title or the right of the landlord to terminate the lease is sufficient to operate as such waiver. 1 Underhill on Landlord & 'Tenant, § 131.”

In 1 Underbill on Landlord & Tenant, § 125, the author says that the refusal of a tenant to quit on the ground that he is a tenant from year to year waives any formal insufficiency of a notice to terminate a tenancy from month to month. In support of the text the case of Drey v. Doyle, 28 Mo. App. 249, is cited. In that case it was expressly held that the formal insufficiency of a notice to quit is waived by the tenant’s repudiation of the monthly tenancy and his refusal to quit on the ground thlat he has a tenancy for years in the premises. The court there cited Boynton v. Bodwell, 113 Mass. 531, to support its holding. There the court had the converse of the proposition, and it was held that, while a notice given by a tenant at will to terminate his tenancy, which fails to state the time when he will quit, is defective, yet, if the landlord does not object to the insufficiency of the notice, when the tenant in fact does deliver to him possession on a subsequent day, the jury are authorized to infer a waiver of the defect.

The same principle controls here. The undisputed evidence shows that appellees gave appellants the privilege of entering into a new lease at $250 per month, which they had been offered by another party, and that they gave appellants a reasonable time in which to consider the proposition and decide upon it. After mature deliberation, appellants decided not to accept a new lease on such terms, and appellees entered into a new lease with another party for $250 per month. They then gave appellants notice to quit the premises on the first day of January, 1928. It is true that the notice was given on December 12, 1927, and that the thirty days’ notice required in a tenancy from month to month was not given to appellants, but appellants expressly declined to vacate the premises until they received .six months’ notice, as is required to terminate a tenancy from year to year. Hence the court was correct in submitting the question of waiver of the insufficiency of the notice to the jury, and the verdict of the jury against appellants is 'binding upon us upon appeal.

Therefore the judgment will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Bank of Charleston v. Hill.
    Opinion delivered October 8, 1928.

      T. A. Pettigrew, for appellant.

      Dobbs & Yoimg, for appellee.
   Smith, J.

The parties to this litigation entered into a stipulation, from which we copy the following facts:

R. B. Clark drew a check on the First State Bank of Keota, Oklahoma, for $575, payable to the order of R. H. Hill, who indorsed the check in blank and deposited it with the Blank of Charleston on February 15, 1927. On the same day the Bank of Charleston sent the check to the Merchants’ Nátional Bank of Fort Smith for collection, and on the following day the Fort Smith bank sent the check direct to the First State Bank of Keota for collection, and on the 21st day of February received from the Keota bank a draft for $575, drawn on the First National Bank of Fort 'Smith, in favor of the Merchants’ National Bank of Fort Smith, which draft was presented to the First National Bank on February 21, 1927, during regular banking hours, but was not paid for the reason that the First National Bank had been advised that the Oklahoma hank had failed and had been taken over iby the Bank Commissioner of that State. Clark received from the Oklahoma bank a statement of his account, which showed the payment of the check by the bank, the check being returned to him marked “Paid.”

In addition to this agreed statement of facts, Hill testified that he had been a depositor in the Bank of Charleston for twenty-four years, during which time he carried an active account with that institution, and that he was carrying such an account at the time he deposited the check here in question. At the time of making this deposit, and before the check could have been collected in the usual and ordinary course of business, Hill drew checks against his account with the Charleston bank, which would have overdrawn his account but for the $575 credit given him when he made the deposit, but his account was not shown on the books of the bank to have been at any time overdrawn.

Hill brought this suit to recover from the Bank of Charleston the amount of said check after the bank had recharged it to his account, and seeks to maintain this suit upon the theory that the bank received the check as a purchaser, any charge of negligence in the collection of the check against the bank being expressly disclaimed.

The bank defends upon the ground that it received the check in accordance with its usual course of business for collection, to be charged back to the account of the customer if not paid, and its cashier was offered as a witness in support of this defense.

The cashier of the defendant bank was asked if the bank received checks for deposit, to be recharged if not paid, or whether the bank purchased checks from customers, and an objection to the question was sustained hy the court.

The cashier was then asked: “I will ask you if the check (sued on) was received by you for the purpose of collection, to be recharged if not collected?” In sustaining 'an objection to this question the court said: ‘ ‘-Let him state what took place, and the jury will determine that.”

The witness was then asked if it was the custom of the bank to purchase checks from its customers, and he answered: “No sir, we don’t buy checks. We never bought any checks or drafts. We take them subject to final payment, just like it is stated on the deposit slip.” On motion this answer was excluded.

We think this testimony was competent, and that the court erred in excluding it, and this error was accentuated by the following instruction, which was given at the request of the plaintiff depositor:

“1A. You are instructed that, if you find from the testimony that plaintiff, in the ordinary course of business, deposited the check in question with the defendant, and that defendant received said check without reservation or restriction, and credited same as money to the checking account of plaintiff, you will find for the plaintiff the amount in controversy.”

It is undisputed that plaintiff deposited the check in question, and that the bank permitted him to draw against the deposit before the collection was made. But this does not prove that the bank had purchased the check. Of course, the bank might have purchased this particular check, and so also it might have received it merely for collection for the account of the depositor, to be recharged to him after the credit therefor had been given, in the event it were not paid. But, if there had been no special agreement in regard to the particular cheek, the presumption would be that the check had been received pursuant to the banking custom, and it would in such case be proper to show what the custom was.

If the banking custom was to receive checks, in the absence of special agreement, for collection only, to be recharged in the event the collection was not made, although credit for the amount of the check had been given the depositor when the deposit was made, the presumption would be that the parties contracted with reference to this custom.

The court should therefore have permitted the bank to make this proof, and, for the error in excluding this testimony, the judgment must be reversed, and it is so ordered.


text:
    Brown-Hinton Wholesale Grocery Company v. Ware & Son.
    Opinion delivered October 8, 1928.

      W. L. Curtis, for appellant.
   Smith, J.

Appellant, a corporation, brought suit against appellees, a copartnership doing a general mercantile -business, to recover a balance alleged to be due upon ¡an account for goods, wares and merchandise sold appellees hv appellant.

Appellees answered, and alleged that there had been a composition and settlement of the demand whereby they had been discharged from individual liability for the debts of the copartnership. In support of this plea the following testimony was offered.

C. A. Goodwin testified that he was a vice president of a corporation which was one of appellees ’ largest creditors, and that in February, 1927, he called a meeting of appellees’ creditors “to save the creditors any loss.” A letter was written to ¡appellant company advising the time and place of this meeting, which was duly held and attended by creditors representing eighty per cent, of the indebtedness due by appellees. .At this meeting it was determined that appellees should execute an assignment of all of their assets, including the accounts due them; that a trustee should take ‘charge of the business and continue it until fall, and collect the accounts, and, until that time, should have the right to purchase such goods as were necessary to continue the business. This assignment was duly executed, and Goodwin was made trustee, and a committee-of the creditors was named to advise the trustee in the discharge of his trusteeship.

After this meeting of the creditors and the execution of the assignment, the trustee mailed to appellant and all other creditors the following letter:

“At a creditors’ meeting, held in the office of the Williams-Echols Dry Goods Company, March 7, 1927, at which thirty-five creditors were represented, totaling about 80 per cent, of the indebtedness, as shown by their statement, it was decided that the best interest of the creditors would be to appoint a creditors’ committee of three, one of which was to act as trustee, to liquidate the above estate, under the direction of the other two members of the creditors’ committee, who will advise the trustee the wishes of the creditors. It was also decided to liquidate the estate gradually, as the assets would bring very little at this time if placed on the market at forced sale, as a large part of the assets consist of notes and accounts receivable; that Mr. M. N. Ware, who is manager, thinks a large part can be collected this fall.

“We sent a man today to take a complete inventory of the merchandise, notes, accounts, etc., and as soon as same can be miade, we will advise you further. Would like to have a letter from you stating that you will cooperate with the other creditors in making this effort to reach an adjustment of the affairs of G. L. Ware & Son, also send us verified itemized statement of your account. ’ ’

Appellant sent to the trustee a verified itemized statement of its account. The trustee proceeded to discharge his trust, and, in doing so, bought certain goods from appellant, for which the trustee paid appellant, but it was found that the operating expenses and overhead costs were so large that the continuation of the trusteeship was not advisable.

Goodwin further testified that, while he was acting as trustee, Mr. Brown, the president of the appellant company, talked with witness about the trusteeship. In the course of this conversation witness told Brown that any hill for goods thereafter bought for the defendant firm would have to be o. k. ’d by the trustee. Brown expressed to witness his regret that he did not attend or have a representative present at the creditors’ meeting; that he had intended doing so, but had overlooked it.

The trustee determined, upon the advice of his advisers, to sell the assets of the defendant copartnership, and this was done, and from the proceeds of this sale a sum was derived sufficient to pay creditors a dividend of twenty-seven per cent. A check for thiat amount was sent the appellant company, and returned by it, after which this suit was brought.

The trustee and certain other witnesses testified that there was a custom in the trade vicinity of Fort Smith whereby, when the creditors of an embarrassed debtor took over the assets of the debtor and wound up his business, /all creditors participating or agreeing to participate in the equal distribution of the proceeds derived from the receivership were thereafter concluded from prosecuting any proceeding to enforce payment of the unpaid portion of their demand.

Mr. Brown, in rebuttal, testified that he learned that a creditors’ meeting would be held, and discussed it with Mr. Ware, of the defendant firm, but that he had never heard of the trusteeship, and that Goodwin told witness he was going to run the business of the debtor firm and would pay its liabilities, and that witness knew of no custom whereby the creditors might take over the assets of a debtor and thereby extinguish their debts after receiving a pro rata share of the proceeds of the sale of the debtor’s assets, in the absence of an agreement to that effect upon the part of all the creditors, and that his company had not so agreed.

The validity of appellant’s d.emand is not questioned, and it is insisted only -that, iby participation in tlie trusteeship, appellant is estopped from demanding anything more than its pro rata share of the funds derived from the trusteeship. The question for decision is therefore whether appellant is estopped 'by its conduct from prosecuting this suit.

The instant case is somewhat similar to that of Brown Shoe Co. v. Stone, 172 Ark. 1156, 292 S. W. 117. That case arose in the Fort Smith trade territory, as did the instant case, and testimony similar to that in the instant case in regard to the custom of creditors taking over the assets of their debtor was offered.

Such custom, if it exists, can have no binding effect except upon persons who contract with reference to it, as it is in contravention of what would otherwise be the law in this State, as is pointed out in the opinion in the Brown Shoe Company case, supra. .

The case of Simmons Hardware Co. v. Rhodes, 7 Fed. Rep. 352, cited in the Brown Shoe - Company case, arose in this State, and after a review of the cases in this State which are cited, it was there said:

“An examination of the decisions from the Supreme Court of the State of Arkansas discloses it to be the settled rule of decision in that State that a conditional stipulation in a general assignment for the benefit of creditors, if accepted, shall extinguish and satisfy all liability of the maker of the assignment to creditors, renders such ian assignment invalid, because the same tends to hinder, delay, and defraud creditors in the collection of their just debts.” (Citing numerous Arkansas cases).

In the Brown Shoe Company case the opinion recites that the testimony showed or that the jury might have found that the particular custom referred to existed; that the parties were aware of it, and contracted with reference to it, and that, after the discharge of the trust by the trustee, the creditor received from the trustee a check which stated on its face that it was in full payment of the debt due the creditor. Under these facts the court held that the testimony supported a verdict in favor of the debtor.

In the instant case the court, over appellant’s objection, charged the jury as follows:

“1. You are instructed that, if the defendants made an assignment for the benefit of their creditors and turned over their property to a trustee for an advisory committee of such creditors for the purpose of extinguishing their debt and to avoid bankruptcy, and that the plaintiff did participate in the assignment by filing its claim with the trustee and by dealing with the trustee, you will find for the defendants.”

This instruction is not warranted by the opinion in the Brown Shoe Company case supra.

It will be observed that this instruction does not require the jury to find that there was a trade custom, or that appellant was 'aware of it and had contracted with reference to it.

So far as appellant is concerned, the instruction required only that it ‘ ‘ did participate in the assignment by filing its claim with the trustee and by dealing with the trustee” for its debt to be extinguished. Appellant dealt with the trustee after the assignment by selling him goods, 'and filed its claim with the trustee, but the president of the appellant company testified that this was done without his knowing that he would be expected, in accordance with the alleged local custom, to cancel such portion of his debt as the trustee did not pay.

'The instruction is therefore erroneous. Appellant would not be bound by merely filing its claim with the trustee, unless in so doing it thereby assented to accept its pro rata share of the proceeds of the trusteeship in full settlement of its claim, and the proof of the custom was competent as tending to show whether, in conforming thereto, appellant had agreed to cancel such portion of its debt as the receiver did not pay.

We do not discuss the conditions under which a local custom, which is not mentioned by the contracting parties, becomes a part of the contract, on the presumption that the parties contracted with reference to it, as we must assume that, on the retrial, when this question is submitted to the jury, it will be under correct instructions. Exchange National Bank v. Little, 111 Ark. 263, 164 S. W. 731.

For the error in giving the instruction set out above the judgment must be reversed, and it is so ordered.


author: Hart, C. J.

text:
    Fair Oaks Stave Company v. Cross.
    Opinion delivered October 8, 1928.

      E. L. Westbrooke, Jr., and E. L. Westbroohe, for appellant.

      Killough & Killoibgh and Elmo GarlLee, for appellee.
   Hart, C. J.

Tom Cross, a minor, was killed while operating an equalizer in the stave factory of the Fair Oaks -Stave Company, a partnership, and William Cross recovered judgment against said partnership for his son's wrongful death. The Fair Oaks Stave Company denied negligence, and pleaded assumption of risk.

The main reliance of appellants for a reversal of the judgment is that the court erred in not directing a verdict for them. Inasmuch as the correctness of the ruling of the trial court in this respect must he tested by the evidence for appellee when viewed in its most favorable light, we need only abstract the evidence tending to show the negligence of appellants.

On July 7, 1925, Tom Cross, a minor between seventeen and eighteen years of age, was killed while operating an equalizer at the stave factory of appellants. The equalizer consisted of two saws on a single axis, and it was the duty of Tom Cross to cut off the ends of the holts on these saws as they were delivered to him on small trucks running on iron rails. The track on which the trucks were operated ran up behind the operator and between the two saws in question. The rails were laid on the floor, and there was no stop or bumper at the end of th.e track next to the equalizer to keep the trucks from running off the track. The end of the track was between thirty and thirty-six inches from the equalizer. Cross would indicate to the pushers of the trucks when to stop pushing the trucks, and he would then take the ■bolts from the trucks and cut off the ends by placing the bolts between the two saws. Just before the accident, Cross was standing with his face to the equalizer, after he had finished cutting off the ends of a car of bolts. Two men pushing another car of bolts approached from behind him and pushed the car off of the end of the track, and hit him in the back, which threw him into the saws, where.his body was mangled so that he died. The saws were running at the time of the accident, but were stopped immediately afterwards.

Tom Cross had not worked at the equalizer more than a day and a half at the time he was killed. He had worked around stave factories considerably before that time, but had never operated an equalizer. He would have been eighteen years old the following September. He was without experience in operating the equalizer, and had not been warned that there was any danger to him from there not being any bumper at the end of the track to stop the trucks from running off. One witness testified that he had worked around the stave factory for some time, and that he had seen trucks run off the end of the tracks twice before that. Witnesses of the plaintiff testified that it was usual and customary to run the tracks to the side of the equalizer instead of behind the operator and between the saws of the equalizer. Witnesses for the appellants testified that it was the better construction to have the tracks run behind and between the saws of the equalizer.

Two grounds of negligence on the part of the appellants were relied upon for a recovery. In the first place, it is alleged that the track used to carry the trucks of bolts to the equalizer ought to have been on the side of it instead of running directly behind the equalizer and between its two saws. The other ground of negligence was that the appellants should have put a stop or hamper on the end of the track to keep the trucks from being pushed off the track and against the operator of the saws of the equalizer.

In the first place it is insisted by counsel for appellants that there was no allegation in the complaint of the failure to put a stop or bumper on the end of the track, and that, on this account, the court erred in allowing proof to go to the jury of the negligence of the appellants in this respect. We cannot agree with counsel in this contention. The appellee alleged that the holts were delivered to the operator of the equalizer by means •of small trucks running on iron rails which came up to the rear of the equalizer, and that the rails were so constructed that the trucks operated on them could easily run off the end of the track and strike the operator of the equalizer. This was tantamount to an allegation that the appellants were negligent in not putting a stop or bumper at the end of the track to keep the trucks from running off the track when they were pushed up to the equalizer. Under the circumstances we are of the opinion that the jury was warranted in finding that appellants were guilty of negligence in not either running the track to the side of the equalizer or in not placing a stop or bumper on the end of the rails, if they ivere run up behind the operator and between the saws of the equalizer. This Avould have been an inexpensive matter; and if the appellants deemed it best to run the tracks up to the rear and between the saws of the equalizer in order to facilitate the operator in taking the bolts from the trucks for the purpose of saAving off their ends on the saws of the equalizer, it would have been a comparatively simple matter to have placed a stop or bumper on the end of the track so that the trucks could not have been easily pushed off the track. At the least the jury ivas warranted in finding the appellants guilty of negligence in failing to do this.

It is next insisted that the court should have directed a verdict in favor of appellants because the evidence, when viewed in the light most favorable to the appellee, shows that Tom Cross assumed the risk of operating the saws of the equalizer. We regard this as a close question; but, when the age and inexperience of Torn Cross is taken into consideration, we cannot say as a matter of law that he assumed the risk. It is true, as held in Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676, and numerous other decisions of this court, that an employee assumes all risks naturally and reasonably incident to his service, where the hazards of the service are obvious and within the apprehension of a person of his experience and understanding. This is in application of the well-settled rule in this State that, by his contract of service, a servant agrees to bear the risk of all the ordinary dangers incident thereto, and no recovery can be had for an injury resulting therefrom. Of course the fact that the end of the rails did not have a stop or bumper on them was obvious to the operator of the equalizer, and, if he had been a person of mature years, he would have been deemed, as a matter of law, to have seen and apprehended the danger of operating the equalizer without demanding of his employer that a stop or bumper be placed at the end of the rails over which the trucks containing the bolts were pushed. The evidence shows that Tom Cross had only operated the equalizer a day and a half at the time he was killed, and that no warning had been given him of the danger he might incur. Assumption of risk in the case of young and inexperienced servants is not always predicable from a knowledge of the conditions alone of his working place. In order to say conclusively that there was an intelligent consent on his part to the danger and thereby an assumption of risk by him, the testimony must show that the conditions surrounding him were such that a person of his age and inexperience must be deemed to appreciate the dangers of his work. Brackett v. Queen, 162 Ark. 524, 258 S. W. 635; and Hogue v. Bundy, 168 Ark. 879, 271 S. W. 979.

Under the existing circumstances as they appear from the record we are convinced that the testimony was sufficient to warrant the jury in finding’ the appellants guilty of negligence in failing to properly equip the tracks on which the trucks were run with a stop or bumper, or else running the tracks to the side of the equalizer instead of to the rear and between the saws of the equalizer, and that Cross could not he said, as a matter of law, to have assumed the risk, when we consider his age ¡and inexperience. It is true, as contended by counsel for appellants, that Cross had worked around stave factories before, but it does not appear that he had ever before operated an equalizer, nor could he be said to have, as a matter of law, apprehended the danger of operating an equalizer without there being a stop or bumper at the end of the track, when the track was constructed as in the present case. Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S. W. 681; and Breece-White Mfg. Co. v. Green, 171 Ark. 968, 287 S. W. 173.

In this connection it may be stated that it is earnestly insisted that the court erred in permitting a witness for appellee to say that he had seen a truck run off the track at the same place twice before within a short time before the accident in the case at bar took place. In this contention counsel rely upon that class of cases which tend to show that a declaration of a servant as to how an accident happened cannot be used to show negligence on the part of his master. In the first place, it may be said that the witness who testified to this fact was not one of the servants who were pushing the truck at the time of the accident. He was another servant of the company, who was in no manner responsible for the accident, and who merely happened to see it. His testimony that he had seen a truck pushed off the track twice before within a short time was competent for the purpose o-f establishing the negligence of the appellants. It tended to show that it was an easy matter to push a truck off of the track where there was no stop or bumper at the end of the track, and appellants were deemed to have knowledge of this fact, and might'thus have reasonably anticipated that just such an accident as did happen was likely to happen.

■Complaint is also made by counsel for appellants to some of the instructions given by the court. We do not deem it necessary, however, to set out these instructions nor to discuss each of them in detail. It is sufficient to say that we have carefully considered them, and that the court was governed by the principles of law above announced in giving them.

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


author: Hart, C. J.,

text:
    Swafford v. Ketchum.
    Opinion delivered October 8, 1928.

      JoJm L. McClellan, for appellant.

      D. M. Halbert and H. B. Means, for appellee.
   Hart, C. J.,

(after stating the facts). The only question argued before us is whether or not our Bulk Sales Law created a lien on the stock of furniture in the hands of Ketchum and Sullivan and made them liable to Swaf-ford to the extent of the value of the goods purchased. Our Bulk Sales Law declares, in effect, that any sale of merchandise in bulk, otherwise than in the ordinary course of trade, shall be void as against the creditors of the seller, unless the purchaser demands and receives from, the seller a written list of the names and addresses of the creditors of the seller, and unless the purchaser shall, at least ten days before taking possession of the stock of merchandise, notify personally or by registered mail every creditor whose name and address is stated in the list. Prins v. American Trust Company, 169 Ark. 455, 275 S. W. 914.

A preponderance of the evidence in the record shows that Ketchum and Sullivan each purchased the stock of furniture in good faith and without any knowledge that Swafford had any claim against it. When Ketchum purchased an interest in the business he was told there was nothing against it except $165 owing for new furniture, and he paid that claim. He did not know that Swafford claimed to he a creditor. When the business was sold to Sullivan, he was told that no one except Fones Brothers Hardware Company had a claim against the firm. .Sullivan paid this claim, and paid the balance of the purchase price to Ketchum. Under these circumstances neither Ketchum nor Sullivan were liable to Swafford. Each of them demanded and received from the seller what purported to be the only creditor of the firm. In McKelvey v. John Schapp & Sons Drug Co., 143 Ark. 477, 220 S. W. 827, it was held that, under our Bulk >Sales Law, a purchaser of a retail business who in good faith demanded and received a list of creditors from the vendor, is not liable where the latter, either by fraud or inadvertence, omitted the name of a creditor. In that case it was further held that failure of the vendee of a stock of goods to take an inventory of the goods sold in bulk to such vendee in good faith will not render him liable to a creditor of the vendor whose name was not listed. 'The court said that a reasonable interpretation of the statute is that a purchaser in good faith should not be held liable on'account of the omission of the name of a creditor.

In the present case of Ketchum and Sullivan, each had an inventory of the stock of goods made at the time of his- purchase. There is nothing to show bad faith on the part of either one. Each demanded and was given what purported to he the name of the only creditor the firm had. Ketchnm paid what was represented to him to he the only claim. Sullivan paid what was represented to him to be the only claim against the firm. The statute therefore affords no protection to Swafford, because Ketchum and Sullivan each acted in good faith in the purchase of the stock of goods, and each was in entire ignorance of the fact that Swafford had a claim against the firm.

In 27 C. J., § 894, p. 887, it is said that the Bulk Sales Law did not render an innocent purchaser for value from an original purchaser liable to creditors of the original seller nor affect his title to . the property. Among the cases cited to support the doctrine is Kelley-Buckley Co. v. Cohen, 195 Mass. 585, 81 N. E. 297. In that case the court said that, while ia creditor could avoid a sale because the statute had not been complied with, he must proceed with reasonable diligence and before the rights of intervening parties acting in good faith shall have become fixed. To the same effect see Prokopovitz v. Chimka, 170 Wis. 190, 174 N. W. 448.

Therefore the decree will be affirmed.


author: M'ehaeey, J.

text:
    Drake v. Howell.
    Opinion delivered October 8, 1928.

      Wade Kitchens, for appellant.

      McKay & Smith, for appellee.
   M'ehaeey, J.

Appellant operated a sawmill and garage, and separate books were kept for each business. A. R. Kimball worked for appellant as manager and bookkeeper of the sawmill, On July 10, 1924, appellant rendered the following account to Kimball:

“Glenville, Arkansas, 7-10-24.

“Bal. due A. R. Kimball for labor $940.92, less 5 per cent, gain for the month of June, $44.51.

“W. W. Drake.

“M. D. Paisley.

$940.72

600.00

$340.72

Check 100.00

$240.72”

It was acquiesced in by Kimball, and therefore became an account stated.

Kimball died, and Ivie E. Howell was appointed administrator, and this suit was brought to collect balance of account due, $240.72.

There is very little dispute about the facts, and we deem it unnecessary to set out the testimony, but will call attention to the part of the testimony relied on by appellant. There is no dispute about the account as stated, about it having been made and signed by appellant and Paisley and delivered to A. R. Kimball, but the appellant testifies that he discovered an error in the books, and, after the account had been delivered to Kim-, ball, called Kimball’s attention to the fact that there was an error, and that he had gone over the books, and that there was a balance due appellant.

Numbers of witnesses testified with reference to page 95 of the books, and all of them testified that there were errors on this page and that the change indicated by the errors there would change the account so that there would be something due appellant. The appellant, however, did not introduce the books nor the whole account, but he contends that the evidence is undisputed that Kimball charged himself with a number of items which were not extended, and then also that it is undisputed that cheeks aggregating $370, drawn by appellant in favor of Kim-ball, became mixed in the garage account, and were never charged to Kimball.

■Conceding that the testimony shows that these facts, together with the errors pointed out on page 95. of the books, amount to more than plaintiff’s claim, this would not justify a reversal of the case.

The court gave the following instruction, requested by the plaintiff:

“You are instructed that the defendant admits that he and the plaintiff’s intestate had' a settlement of their dealings- with each other and adjusted balances on a basis of such settlement, and that, according to said settlement had and agreed to by both the defendant and the plaintiff’s intestate, there was due the plaintiff’s intestate the sum of $940.92, and that since said settlement so had defendant has paid the plaintiff only $700. You are told that said settlement between the parties is presumed to be correct and must stand, unless fraud or mistake is shown in said settlement, by the preponderance of the evidence. ’ ’

At the request of the appellant, the court gave the following instruction:

“The jury was instructed by the admission of the defendant, there was an account stated between the plaintiff’s intestate, A. R. Kimball, and himself, and you are told that the amount ascertained and agreed to be due by such stated account is conclusive against the defendant, unless it can be shown that some error or mistake had been made, and the burden of proving the error or mistake is on the defendant. If, however, you find from the preponderance of the evidence that there was some error or mistake made, either in addition of items of the account, or a failure to charge the account of said A. R. Kimball with checks given him by defendant, then yon may go behind that settlement, and diminish or lessen the amount of said stated account by such sum as you may believe the defendant entitled, and you will return a verdict into court in accordance with your findings. And if you find that there were any made, and that defendant is entitled to credit therefor, are as much or more than the balance of the account here sued on, then your verdict will be for the defendant.”

These instructions, we think, fairly submitted to the jury the questions of fact to be determined in the case. The jury may have reached the conclusion that all these matters were considered when the account was stated. The account stated was prima facie correct, and the burden was on appellant to show that there was an error or mistake, and the jury was instructed that, if he had done this, he was entitled to recover. There is no effort on the part of the appellant to show what the checks testified about were given to- Kimball for, nor is there any testimony tending to show whether the whole account, if considered, would have shown any errors in the account stated.

Kimball, one of the parties, has, since the account was stated, died, and we do not have his testimony. The jury would have a right to conclude that the checks were accounted for or were given to Kimball to get money for the appellant, since there was no testimony to the contrary and no testimony showing what the checks were given for. The jury would have a right to reach the conclusion that, if the whole account or checks had been introduced in evidence, the settlement between appellant and Kimball would have been shown to be correct. There was no offer made to introduce the books and no offer, made to introduce the entire account or to have any examination made of the entire account to show whether or not there were other errors.

M. D. Paisley was the bookkeeper at the time the account was rendered, and did not testify. There was no testimony tending to show how the account rendered was made, nor of the items, nor bow much of the account was considered in making it up. The jury has passed on the checks, under proper instructions, and its verdict is binding on this court where there is any substantial evidence to sustain it, and we think there is substantial evidence upon which to base the verdict in this case. The errors mentioned as existing on page 95 of the record and the cheeks testified about would have justified an examination of the account and justified testimony as to what the checks were given for, and this would have been the only way by which it could be determined whether the account was stated correctly.

“An account stated is an admission that the account is correct, but it does not operate as an estoppel; the person who rendered the account may show that it is incorrect, show that there are mistakes or errors. The account is only prima facie evidence of its own correctness. And it has been said that, while a party may institute an original proceeding- in equity to be relieved from it, yet, when it is interposed as a defense to an action, it may be disputed and overthrown in the same suit.” Gutshall v. Cooper, 37 Colo. 212, 86 Pac. 125, 6 L. R. A. (N. S.), 820.

In this case the appellant was permitted to interpose the defense and to introduce testimony as to the correctness or incorrectness of the account and as to errors, and the court properly instructed the jury that, if they found from the evidence that there were errors and that those errors amounted to as much as the claim of the plaintiff, a verdict should be rendered for the defendant. See also Ripley v. Sage Land & Imp. Co., 138 Wis, 304, 119 N. W. 108, 23 L. R. A. (N. S.), 787.

“An account stated is an acknowledgment of an existing condition of liability of the parties from which the law implies a promise to pay the balance thus acknowledged to be due; the words ‘stated’ and ‘settled,’’ as applied to accounts, being sometimes used as synonymous.” State v. Ill. Cent. Ry. Co., 246 Ill. 188, 92 N. E. 814.

And an account stated, in the absence of fraud, error or mistake, is conclusive between tbe parties; either party, however, is permitted to show that there was fraud, error or mistake. But in this case, whether there was was a question of fact properly submitted to the jury.

This court has said: “An account stated is an account balanced and rendered with an assent to the balance, expressed or implied.” Brown v. Sou. Grocery Co., 168 Ark. 547, 271 S. W. 342, 40 A. L. R. 383.

“The burden was on appellants to successfully impeach the accounts furnished by appellee and accepted by appellants.” Hawkins Bros. v. Lesser-Goldman Cotton Co., 157 Ark. 299, 248 S. W. 275.

An account stated, as we have said, is only prima facie "evidence of its own correctness, and may be impeached, but the burden is upon the person seeking to show errors, fraud or mistake in the account. It is not sufficient to show that, on some page of the books, there was an error, nor is it sufficient to show that the person had given checks without any evidence showing what the checks were for or whether or not they had anything to do with the account.

“When the person sought to be charged thus shows checks upon which an inference may be drawn inconsistent with the presumption of assent to the correctness of the account, the question whether the account became stated becomes one for the jury on all the evidence, under proper instructions from the court.” 1 C. J. 693.

“An account stated, whether expressly or by implication, is prima facie evidence of the accuracy and correctness of the items thereof and of the liability of the party against whom the balance is found. And this is true although the statement of account expressly provides for the correction of errors and omissions; such a stipulation does not render the statement any the less a settled account and subject to all the rules applicable to a stated account. Accordingly, the burden of adducing evidence of fraud or mistake rests on the party who would avoid its binding force, and, in the absence of such evi-deuce, the account stated is conclusive both at law and in equity.” 1 C. J. 175.

The question of whether the evidence showed a mistake or error has been settled against appellant by the verdict of the jury, and the judgment is therefore affirmed.


author: Kirby, J.

text:
    Blount v. Baker.
    Opinion delivered October 8, 1928.

      Brmididge & Neelly, for appellant.

      Joitm- E.'Miller and Gul L. Pearce, for appellee.
   Kirby, J.

This suit was brought by five citizens and taxpayers of Higginson Special School District, three •of whom were formerly directors thereof, to have canceled as illegal a certain $500 warrant of the district issued to appellants, as attorneys’ fees for services, and a $62.50 warrant, payable to the chancery court clerk, Ben D. Smith, of White County.

The court below sustained appellee’s demurrer to the complaint and amended complaint of appellants, and, appellants declining to plead further, dismissed it for want of equity.

From the allegations of the pleading it appears that there were five directors of the Higginson Special School District; that the hoard, by a majority vote, attempted in 1926 to issue and sell $20,000 of bonds of the district for refunding its debts, and other purposes. The two minority directors, with other citizens and taxpayers, brought suit to enjoin the issuance of the warrants, and employed appellants as attorneys. The suit resulted in the district being enjoined from issuing bonds in excess of the amount necessary to refund the old indebtedness, $15,900, etc. Phillips v. Baker, 172 Ark. 727, 295 S. W. 384. Upon remand of the .cause and a final decree entered, the directors of the district proceeded to issue and sell bonds for the refunding of the existing bonded indebtedness, and another suit was brought by appellants, as attorneys representing the same taxpayers, to enjoin the district from selling and delivering the bonds. This suit was evidently brought for delaying the delivery of the bonds until the May, 1927, school election, and the trial court, on May 4,. 1927, overruled a motion for a continuance which had been filed by these appellants, Blount & Blount, representing the plaintiffs in that suit, and upon appeal this court held that the cause would not stand for trial until 90 days after the issues were made up, under § 1288 of C. & M. Digest of the Statutes, and reversed and remanded the cause for trial. Phillips v. Baker, 174 Ark. 403, 296 S. W. 384. Before this cause could be again heard, the school election occurred, and the personnel of the board was changed, three of the former directors being succeeded by those newly elected, and all the members of the new board, except W. N. Spratt, had been litigants through their attorneys, the appellants, against the school board over the issuance of bonds for the district. The new board of directors in control employed appellants as attorneys, and issued the warrants of the district sought to be canceled herein in payment of their services, ¡and for costs of this litigation. Appellants in their 'brief state that they were employed by the new board to assist in its organization, to proceed with the pending" suit to enjoin the issuance of the bonds, and any other litigation that might be brought, “and that the district ratified their employment in the original suit, and issued la warrant for $500 in payment of services rendered and to be rendered, which was alleged to be a reasonable fee.”

Appellants insist that the court erred in holding that the new school board could not ratify the acts of the two minority directors, Phillips and Shouse, with the other patrons and taxpayers, in their employment of attorneys to protect the interest of the district in the litigation against the majority action of the board and to represent the district in the suit pending in the chancery court, but this contention is without merit.

School districts are authorized to employ attorneys or ratify the employment of them in their behalf as a necessary incident to their power to contract and to sue and be sued. State v. Aven, 70 Ark. 291, 67 S. W. 752; see also Denman v. Webster, 139 Cal. 452, 73 Pac. 139; Byrne v. Board of Education, 140 Ky. 531, 131 S. W. 260. It is not contended, however, that the old board even attempted to employ appellants as attorneys to prevent their issuance of the bonds of the district for refunding its indebtedness in the first suit, but that, since the new board had contracted with them for services rendered and to 'be rendered, it thereby of necessity “ratified the employment of appellants in the first instance, as the services inured to the benefit of the district.”

It is no longer questioned that invalid contracts made by a school district may be ratified by the board of directors by their full knowledge of and acquiescence therein, but no contract void for want of power to make it in the beginning can be ratified. Dell Special School Dist. v. Johnson, 129 Ark. 211, 195 S. W. 373.

The old board of directors certainly would not have had the power and there could have been no necessity for its employment of attorneys to resist and enjoin the action of the majority of the board duly taken in proceeding to refund the indebtedness of the district, under the law authorizing it to be done, the board having plenary power to rescind its action and desist from any such proceeding. Consequently the transaction or contract of employment of the attorneys by the minority members and other taxpayers, to resist the action of the board, was beyond the power of the school board to make, and, being so, could not be ratified by the new board of directors.

The question of benefit or advantage derived by or resulting to the district because of the services rendered by these attorneys could not affect the district’s liability, since the board of directors alone could contract a debt against the district or ratify an invalid contract within its power to make. The new board was under no necessity to prosecute further the pending' suit for enjoining the district from the issuance of bonds, since it had ample authority to revoke the action of the old board authorizing it done, to refuse to do it in furtherance of the public interest if it regarded such action necessary.

We do not regard it necessary to pass upon the question of the intervener’s rights, since no judgment was rendered on the intervention, and consequently its rights are not ¡affected by this appeal.

We find no error in the record, and the decree is affirmed.


text:
    Orr v. Johnson.
    Opinion delivered October 8, 1928.

      Ward & Caudle, for appellant.
   Kirby, J.

Appellee brought suit against appellant, a road' contractor, for damages for personal injury resulting from his leg being injured or broken by an I-beam falling over and striking him and crushing it while he was engaged with others in setting up on edge bridge stringers and I-beams, on the ground where they had been unloaded for construction of the bridge near by.

The men had set up three or four of the stringers and were attempting to set up another, which was lying diagonally across one of the other stringers, and, being unable to move it, appellee, Johnson, procured a rail and, while lifting or prizing with the rail near the end of the stringer, stepped over between it and the last one set up, which fell over, catching Johnson’s leg, and fracturing the bone between the ankle and knee.

Appellee sued, alleging, first, as the only ground of negligence, that he was required by the foreman to set up said stringers on rocky and uneven ground, which the foreman must have known, in the exercise of ordinary care, would be likely to fall and injure plaintiff.

A demurrer was interposed and overruled, and the trial had, resulting in a verdict for plaintiff. The court sustained a motion for a new trial, and allowed appellee to amend his complaint by interlineation to include the following paragraph: “That said negligence and injury was caused by the defendant’s foreman leaving said I-beam or stringer in an unsafe and insecure position, "which caused it to fall, crushing.the plaintiff’s leg.” A general and special demurrer was interposed to this complaint, which, being overruled, defendant answered, denying all the material allegations of the complaint, and pleaded contributory negligence and assumed risk as a bar to recovery. Upon trial the plaintiff recovered judgment in the sum of $375, from which this appeal is prosecuted.

No brief has. been filed here for the appellee, and many assignments of error in the giving of and failure to give instructions requested are insisted upon by appellant, and especially does he urge that the evidence was insufficient to support the verdict.

The I-'beam had been unloaded on the most nearly level piece of ground near where they were to be used in the bridge construction, and W. W. Jackson, the foreman of appellant, told the men they would set the I-beams up on edge so that the rain, which seemed to be approaching, would wash the dirt off and save that much work about the painting of them. The I-beams were 31 y2 feet long, about 15 inches high, weighed about 1,400 pounds, with 6 or 7-inch flanges and about 8 or possibly 10-inch channels, as one witness described them, being the stringers that the bridge floor rested upon. There were about 20 of them unloaded at the place, and the men were setting them up, the foreman working with them as a laborer. The men had set up one or two of the stringers on the side of the road where they were working, and had put a small rock under the last one they had set up to keep it from slipping or leaning over. They were trying to set up another stringer, or unloosen the end of it from one it was lying on. Jackson had told all the men to get on one side of the stringer in doing the work, and was working "with them as a laborer. Johnson got a rail, and Avas trying to prize the stringer they were setting up over the end of another one, and, in so doing, stepped over the stringer next to the one last set up, and. it fell, injuring and fracturing his leg.

Appellee stated Me. Jackson believed it was going to rain, and said: “We will set the beams up. It will wash the dirt off of them and will keep them from warping. That is all Mr. Jackson said abont setting them np. He said for us all to get on one side and set them up. I knew just as well as Jackson what was necessary in order to set them up. I knew we all ought to get on one side. * * * We had set up three, not over four, I think it was only three. * * * Mr. Jackson was down toward the other end of the stringer. • We would all get on the same side, take hold with our hands, and set them up. Mr. Jackson was helping us just the same as anybody else. We all got hold and lifted together. I suppose we were all our own boss in lifting. * * * I don’t know what caused the rail to fall, without that rock sticking under it kinder sunk and caused it to turn. It was a little flat rock, put about the middle of the rail. When we put the rock under there and shook the rail, it appeared to be all right. I thought it was safe. I didn’t think I was that close to it noway. I expect I could see the condition as well as Mr. Jackson. I didn’t think I had my foot close enough that if it fell it would fall on it. I didn’t think it was likely to fall. He didn’t show me how to put the rail under there. We weren’t trying, to set the stringer up at the time the other one fell, we were trying to slip it off of that. ’ ’

Other witnesses testified there were some rocks on the ground, but that it was the smoothest place that could be found near where the stringers were to be used for them to be unloaded; and Jackson directed all the men to stand on the same side of the stringer in doing the work. Johnson got the rail, and was prizing on the stringer, and stepped over it between the one they were lifting and the one that fell, and was injured.

The foreman stated that they had gone out to set the beams up so that the rain would wash the mud off them; that five or six men were with him, and it was thought they could set the beams up by catching hold of them. He directed that all the men should stay on the same side of the rail and use their hands in setting them up. Gave no instructions about getting a rail, crowbar, or anything else. They used rocks to steady them or key them up so that they would not fall over. Had put two or three rocks under the beam-last set up, so that it leaned in the opposite direction. “When keyed up, I thought it was safe. Did not tell Johnson to get a rail, and did not know he was going to get one. I was working, and we 'all had hold of the I beam. He had the rail in his hand when he got hurt. The first I noticed him with the rail I looked down the lina and saw him on the opposite side of the beam we were setting up, and about this time the beam back of him turned forward and caught his leg. I figured he stepped on the plate and turned it over on him. These beams were lying about two feet apart, with the ends practically even. Johnson was working at the end next to a pigpen when he got on the wrong side of the beam Just at that time the other beam turned over.”

Another Johnson, not related, stated that he took hold of the rail with appellee to prize the flange over another rail, and they were both lifting on it when he got his leg broken. He got his leg there between the rail that had been set up and the one under the rail they were lifting on. ‘ ‘ I don’t know whether he hit the one that was setting up or not. Mr. Jackson had told us all to stay on one side and lift together.”

Appellee was a man of mature years; saw the conditions existing at the time he began the work of setting up the rails with the other men and the foreman; knew the condition of the ground where the work was being done; said he knew as much about setting up the 'beams as the foreman did, and also that the foreman had directed all the men to stay on the same side of the beams while they were engaged in setting them up. He voluntarily procured the rail which he regarded necessary for facilitating the setting up of the beam, and, while using it under his own initiative, stepped across on the other side of the rail, next to the last one set up, which turned over and injured him. Other witnesses thought he must have stepped on the flange of the last rail set up to cause it to turn over. He said himself that he didn’t think it was close enough to strike him, and that he regarded it safely-keyed up anywajr, knowing that the rocks had been put under the edge of the rail next to where they were working to keep it from turning over.

It appears from the undisputed testimony that appel-lee knew the conditions existing where the work was being done, and appreciated as much as any one else the danger that might arise from its performance in the exercise of the method used, and, contrary to the only direction given by the foreman, who was hut a fellow-servant at the time of the injury, stepped over the rail being set up, and was injured by the one last set up turning over and falling upon his leg. He could not have been injured at all had he stayed on the side of the rail that was being’ set up as directed by the foreman. Having voluntarily and unnecessarily, so far as the evidence shows, stepped over on the wrong side of the rail being set up, he exposed himself to the danger and assumed the risk thereof. Having-done this of his own accord, he was without right to call on his employer to compensate him. for the resulting injury. Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002; Texas Co. v. Jones, 174 Ark. 905, 298 S. W. 342; St. Louis Southwestern Ry. Co. v. Compton, 135 Ark. 563, 205 S. W. 884.

The evidence, too, fails to show any negligence on the part of appellant that would render him liable for damages for appellee’s injury. Appellee violated the instruction given by the foreman at the time of the injury, but for which it could not have occurred, and Jackson, the foreman, was but a fellow-servant of appellee in the work of lifting or helping to turn or set up the beams, appellant, his employer, being an individual, not a corporation. Graham v. Thrall, 95 Ark. 560, 129 S. W. 532; Jones v. Mayberry, 143 Ark. 390, 220 S. W. 477; Ry. v. Torrey, 58 Ark. 217, 24 S. W. 244. See also Archer-Foster Construction Co. v. Vaughan, 79 Ark. 20, 94 S. W. 717; and Texarkana Tel. Co. v. Pemberton, 86 Ark. 329, 111 S. W. 257.

It follows that, since the .court should have given appellant’s requested instruction No. 1, for la directed verdict, it- is not necessary to designate the other particular requested instructions that were erroneously refused. The judgment is accordingly reversed, and, having been fully developed, the cause will he dismissed. It is so ordered.


author: Kirby J.

text:
    Swim v. Brewster.
    Opinion delivered October 8, 1928.

      Brockman & Reid, for appellant.

      Rowell & Alexander, for appellee.
   Kirby J.

This appeal is prosecuted from a judgment of foreclosure of a deed of trust made by appellant and her husband to a trustee to secure an indebtedness to G-arland Brewster, appellee.

The testimony shows that. Swim, husband of appellant, was a contractor and builder, was awarded a contract to construct a brick building on property in Pine Bluff on the Rutherford estate, upon his bid of $15,600, and, being unable to furnish a bond, appealed to Brewster, who had assisted him before, and to whom he was then indebted in the sum of $9,000 or $10,000. Brewster refused to furnish the bond or finance the contractor, unless he should be assured against loss. Swim urged bis wife, appellant herein, to mortgage her homestead to Brewster and obtain the necessary aid for him. She ’first refused to execute the mortgage, and it appeared that Swim could not carry out the contract. A few days afterwards Brewster met Mr. and Mrs. Swim on the street in Pine Bluff, and again the matter of security for Swim for performance of the contract was raised. Birew-ster and J. J. Swim, husband of appellant, insisted it was her duty to assist her husband, and Brewster agreed, if she would execute the mortgage, he would furnish indemnity for Swim’s bond and finance the job. She finally agreed to execute the mortgage, and, according to Brewster’s statement, the deed of trust sued on was prepared, with a note for $6,000 payable to him, secured by it, and delivered to Mrs. Swim, who refused to sign it until she had had another day to think it over. It was later returned to him by Swim, after being executed by appellant.

Brewster testified he told Swim, the contractor, during the negotiations for having him execute the bond of indemnity in order to have the surety company make the contractor’s bond, that he was no longer in the brick business or furnishing building supplies, and would not assist him in making the bond unless he was secured for the past due indebtedness from Swim, amounting to over $9,000. Brewster and Swim then talked to Mrs. Swim on the street, and told her the condition, and that he would not help Swim to make the bond and procure the contract unless he was secured by a mortgage on her homestead. He testified that he tried to explain to her, and thought she understood that the mortgage was executed to secure the past due indebtedness.

She testified that she had refused to execute any mortgage for any past due indebtedness of her husband, Swim; that Brewster knew this; that no mention whatever was made in the conversation with Brewster about the execution of the mortgage, of its being to secure any ■past due indebtedness; that she would not have executed it at all if she had understood that it was to secure any such indebtedness.

J. J. 'Swim, her husband and the 'contractor, who is no longer living- with his wife, the parties having- separated before the bringing of the snit, testified that nothing was said in the conversation between Mr. Brewster and his wife, when she agreed to the execution of the mortgage', a/bout its being to secure his past due indebtedness to Brewster.

Appellant testified that she got Brewster’s letter, written the day after the execution of the mortgage, informing her that she had executed a mortgage for $6,000 to secure the payment of her husband’s past due indebtedness, and that the indebtedness might be renewed and foreclosure not insisted upon for a certain length of time, if the interest was met, etc. She immediately complained to her husband, who assured her that there was some mistake about it, and that the mortgage was only intended to cover or indemnify Mr. Brewster against any loss he might sustain by reason of having signed his contractor’s bond, and that no loss could occur nor any liability attach to the property if he performed the contract and constructed the building in accordance with its terms.

Brewster explained this writing to the appellant by saying that Swim, her husband, had insisted that she was worried about the probable liability under the mortgage, and wanted to be assured that there would be no foreclosure of the mortgage with any unreasonable haste.

The building contract was performed without any loss to Brewster, appellee, by reason of his having indemnified the surety on the contractor’s bond.

Appellant defended against the suit to foreclose, denying having executed the $6,000 note at all, and alleging that the mortgage was procured by false and fraudulent representations, was intended only to secure any liability that might be incurred by Brewster on account of signing the bond to indemnify the surety company for maldng Swim’s contractor’s bond, and was on that account void,- and prayed for its cancellation. From the decree of foreclosure this appeal is prosecuted.

Appellant urges that the decree is no't supported by the testimony, and is contrary to and in conflict with the preponderance of the evidence. An executed conveyance will not be canceled, unless the ground for cancellation is established ¡by evidence that is clear, unequivocal and decisive. McCracken v. McBee, 96 Ark. 251, 131 S. W. 450.

The majority of the court are of opinion, after a careful review of the testimony, that it did not meet this requirement of the rule and warrant cancellation of the mortgage for fraud, and that the chancellor did not err in so holding. The decree will accordingly be affirmed. It is so ordered.


author: Mehaeey, J.

text:
    Kittrell v. Wilkerson.
    Opinion delivered October 8, 1928.

      W. J. Bung an, for appellant.

      Elmo GarlLee, for appellee.
   Mehaeey, J.

Appellant, who was plaintiff below, brought this suit to recover damag'es caused by a collision which appellant alleges was due to the negligence of the appellee. The appellant was driving a Po-rd coupe along the public highway, about two miles east of Augusta, traveling in a western direction, and the appel-lee was driving a'Chevrolet touring car in the same direction, along the same road. It is alleged that he was driving at an excessive rate of speed and in a reckless and negligent manner. That he overtook appellant, and ran his said ear into the car of appellant, striking it at or near the rear left wheel and turning it and its occupants over into the ditch on the right side of the road. Appellant alleged that he was on the extreme right side of the road, and that the appellee approached him from the rear in such a reckless, careless and negligent manner as to swerve to the right and strike the car of appellant, damaging it in the sum of $204.58, for which sum he asks judgment.

The appellee filed an answer and cross-complaint, and alleged that the road was in splendid condition, and that cars were passing each other without danger; that he passed appellant’s car one time before the accident, and ran ahead for about two miles, and then the appellant passed his car, and'it was while appellee was passing appellant’s car the second time that the accident occurred. He alleges that appellant swerved to the left, causing the two cars to collide, and that each of them went into the ditch. He alleges that appellant was negligent and careless, and disregarded the signal of appellee that he was passing, and that, on account of said negligence, his car was damaged in the sum of $139, for which sum he asks judgment.

The testimony is conflicting, the appellant and his witnesses testifying, in substance, that appellant was driving carefully on the extreme right side of the road and that the appellee carelessly and negligently ran into appellant’s car, causing the damage alleged. There was some testimony about witnesses examining the tracks and as to what they saw at the place of the accident. Appellant and his witnesses also testify that no horn was sounded and no warning given that appellee intended to pass. Appellant and his witnesses also testified that appellant did not swerve to the left.

The appellee and his witnesses testified, in substance, that his car was going at a moderate rate of speed, 25 or 30' miles an hour, and that they drove behind appellant for something like one-quarter of a mile, and that appellee blew his horn and speeded up, and one of the passengers in the car blew the- horn. They testified that appellee’s car was on the left side of the road, and that if appellant had stayed on his side of the road the collision would not have occurred. 'That it seemed that appellant’s oar was pulled to the left some.

The testimony of appellee about appellant’s car swerving to the left was sufficient to submit to the jury the question of appellant’s negligence. If there had been no testimony tending to show that appellant’s ear swerved to the left and that this caused the accident, it would have been the duty of the court to direct a verdict for the appellant. But, under the testimony, the negligence of each party was a question for the jury, and their finding, where there is any substantial evidence, will not be disturbed by this court.

Appellant’s first contention is that the trial court should have directed a verdict for the plaintiff.- "We do not agree with' appellant in this contention, but, under the evidence, the negligence of each party was a question for the jury.

It is next contended by the appellant that the case should be reversed because the court permitted the jury to hear and 'consider irrelevant testimony, as set forth in paragraphs 7 and 8 in his motion for a new trial. The testimony objected to was to the effect that witnesses had seen appellant’s car 'before, and that it had passed appel-lee before and was passing a third time when the collision occurred. Appellee’s witnesses testified that the cars had passed each other once or twice before, and that they had no trouble in passing. That the travel was about as usual.

We think the testimony was competent. The cases relied on by appellant are cases where evidence of other acts of negligence were introduced. Here the testimony objected to does not show or tend to show any negligence' on the part of any one, and it does show that each party knew the other was on the road, and that they were going in the same direction, and about the rate of speed they were traveling, and about this there is no dispute. And, even if the testimony was immaterial, it could not be prejudicial. If there had been testimony introduced tending to show acts of negligence on the part of the appellant at different times, we would have a different question, and the authorities relied on by appellant would be applicable. But, as we have said, the 'testimony objected to did not tend to show negligence on the part of any one.

Where one seeks to recover damages for the alleged negligence of another, he is not entitled to recover if the evidence shows that his negligence contributed to produce the injury of which he complains, so that, but for his negligence, the injury would not have happened. If the appellant negligently swerved his ear to the left and this caused or contributed to produce the injury, he could not recover.

The testimony being in conflict as to whether appellant swerved his car to the left, thereby causing the injury, it was a question for the jury to determine, and the jury returned a verdict against the appellant. The jury, in order to return this verdict, must have found that both parties were guilty of negligence, and that neither of them was entitled to recover from the other.

This court has often held that, where an injured party’s own negligence contributes in any degree to produce the injury of which he complains, he cannot recover. It has been held many times also that, when the verdict of a jury is sustained by any substantial evidence, it will not be disturbed.

Finding no error, the judgment is affirmed.


author: ÍMcHaney, J.

text:
    Copeland v. National Union Fire Insurance Company.
    Opinion delivered October 8, 1928.

      W. U. McCabe, Noel S..Chaney and Williamson & Williamson, for appellant.

      8. M. Casey, for appellee.
   ÍMcHaney, J.

Appellant, Copeland, was the agent of the appellee in the conduct of a fire insurance business in Stone and other counties, and the other appellants were the sureties on the bond executed (by him to appellee, conditioned that said “L. W. Copeland, as agent of the said company, shall faithfully and punctually pay over to the said company all amounts due or that may become due to it from time to time, for moneys 'collected or received (by bim for premiums on policies of insurance and renewals thereof, or for any other account whatever, and shall with fidelity do and perform the duties assigned to him as the agent of said company, according to the best of his ability,” etc.

This action was instituted against all the appellants to recover the sum of $600.45 as a balance due appellee for premiums collected by appellant, Copeland, which had not been remitted to it. An itemized statement of account was filed with the complaint, beginning in March, 1924, showing in detail the names of the insured, premiums collected, the commission allowed, and the balance due the company.

’Copeland answered, denying that he was indebted in the sum claimed, or any other sum, and claimed that there were various credits to which he was entitled, and which had not been given him by appellee, but that, if given proper credits, he would not owe appellee anything. He did not deny any specific item of the account, nor did he set up the particular credits to which he was entitled, although a motion to this effect was interposed and an order of the court made requiring him to do so.

The other appellants, sureties on the bond, answered, admitting their signatures to the bond, but alleged that it was to indemnify appellee against loss on its agency contract with Copeland in force at that time, which covered only “farm policies”; that later appellee and Copeland, without their knowledge or any notice to them, entered into another agency contract, by which Copeland was authorized to write “recording” or city business, and that they executed no bond to cover this particular contract; that full settlement had been made by Copeland with appellee for the “farm” agency business, and that there is no liability on the bond to cover the business done under the later contract, and that all the items in the account filed were for the “recording” agency business.

There was a verdict and judgment for appellee against all the appellants in the sum of $322.27.

To reverse this judgment, it is first said that the court erred in refusing to permit the appellant, Copeland, to testify to certain credits due him prior to March, 1924. There was no error in this regard, as appellee was not suing on an account prior to March, 1924. He failed to comply with the order of the court, made on motion of appellee, requiring him to make his answer more definite and certain, by setting out what credits he-claimed, both prior to 1924 and subsequent thereto, and he would have therefore been in no condition to complain if the court had refused to permit him to testify regarding all credits, including those during 1924 and subsequent thereto as well as those prior thereto. The court did allow him to testify to the credits he claimed subsequent to March, 1924, and the jury gave him credit for all the items he claimed, thereby reducing the account' to $322.27. In his testimony, Copeland did not question the correctness of any of the items in the statement of account charged against him, but only contended that he was entitled to certain credits, which the court permitted Mm to testify to, over appellee’s objection. Having received credit for all these items, appellants are in no position to complain. Moreover, there is no showing in the record as to what particular credits he claimed on account of cancellations of policies prior to March, 1924.

The next assignment of error is that the court erred in refusing to permit appellant Copeland and his bondsman, appellant Brewer, to testify to the second alleged contract. Only one of the bondsmen, Mr. Brewer, offered to testify that he understood, at the time he signed the bond, that Copeland had a contract with appellee to write “farm” policies only, and that he was told this by Copeland himself, and that later Copeland made an additional contract by which he was to write “recording” or city business, about which he was not consulted, and of which he had no knowledge. Neither of the other bondsmen offered to testify to any such understanding.

There was no error in the court’s refusal of such offered testimony, as the bond, the written contract between them and appellees, makes no reference to any particular contract between it and Copeland. Copeland is referred to in the bond “as agent of the company,” and there is no limitation on his agency contained therein by reference to any agency contract, in writing or otherwise. By signing the bond, the sureties became liable as conditioned in the 'bond, to “punctually pay over * * * all amounts due or that may become due to it from time to time, for moneys collected or received by him for premiums on policies of insurance and renewals thereof, or for any other account whatever.” In this respect it differs from the case of Snodgrass v. Shader, 113 Ark. 429, 168 S. W. 567, and the other cases cited by appellants, as in that case there was a written contract of lease particularly referred to in the bond, which was later changed without the knowledge or consent of the sureties. In the case at bar, however, no contract was referred to in the bond.

As said by this court in Powell v. Fowler, 85 Ark. 451, 108 S. W. 827, 122 Am. St. 41, a case cited by appellants : “If Fowler imposed additional duties upon Powell without altering the original contract, and which did not interfere with the performance of the contract, that would not operate as a release of the surety.” In that case the court quoted from 27 Am. & E. Enc. of Law, page 499, as follows: “The general principle controlling in such cases is that the surety for the performance of the original duties is not discharged unless the new duties materially affect the performance of the old, or affect the obligation of the principal in respect to the old, thus' increasing the risks of the surety.” Since the bond did not refer to any particular agency contract then existing, .but only referred to Copeland as its agent, and since the appellants agreed in the bond to stand good for all premiums collected by such agent, we fail to see why an enlargement of the scope of his business permitting him to write additional risks would be such a change in the duties of the agent as to relieve the sureties.

It is finally insisted that the court erred in instructing the jury that the 'burden was on appellants, and then permitting the appellee to open and dose the argument to the jury. They rely on the recent case of Dickerson v. St. Louis-San Francisco Ry. Co., ante, p. 136. The facts in 'that case are not applicable to this. There the railroad company admitted the injury and death of the boys, for whose injury and death it was being sued for damages, but did not admit the amount of the damages sued for. This court held that the railroad company was not entitled to open and close the case, because it was still necessary for the plaintiffs to prove the amount of the damages. It voluntarily assumed the burden in the case and ashed the right to open and close the argument, but was refused this right because there was still something for the plaintiffs to do in order to establish their case. The 6th subdivision of § 1292, C. & M. Digest, provides that the party having the burden of proof shall have the opening and conclusion. The right to open and close the argument to the jury is a matter to be determined by the pleadings in the case. Beal & Doyle Dry Goods Co. v. Barton, 80 Ark. 327, 97 S. W. 58; Columbian Woodmen v. Howles, 131 Ark. 299, 198 S. W. 286. In this case plaintiff alleged that appellants were indebted to it in a certain sum, which appellants denied. Therefore, under the state of the pleadings at the time the trial began, appel-lee was entitled to open and close, as it had the burden of proving its account against appellants. The fact that appellants did not dispute any of the items of account, but claimed that appellant Copeland was entitled to certain -credits which had not been given him in the account, placed the burden on appellant to establish the credits, but still left the burden on the whole case on appellee.

We find no error, and the judgment is affirmed.


author: McHaNEy, J.

text:
    Laughlin v. Tyler.
    Opinion delivered October 8, 1928.

      F. G. Taylor and Oliver & Oliver, for appellant.

      G. 0. Raley and G. T. Bloodworth, for appellee.
   McHaNEy, J.

This is an action in replevin, brought in a justice’s court by appellant against appellees, to recover the possession of a team of mules, sold by appellant to appellees on December 14, 1926. At the time of the sale, appellant and appellee, John Tyler, entered into an oral agreement for lappellee to cultivate sixty acres of appellant’s land as a sharecropper, and the mules were sold to him to enable him to cultivate the land. Appel-lees on said date executed and delivered to appellant their promissory note, due ten months thereafter, at 8 per cent., for $175, appellant agreeing to keep the mules and winter them, and to deliver them to appellees in the spring, which was done. Appellees moved on appellant’s place, but failed to make any crop, on account of a disagreement between them regarding a settlement for work done by appellees for appellant. Appellees moved off of appellant’s land on May 4,1927, and at the time of their removal appellant presented them their note, and demanded the return of the mules, for the reason that appellees had breached their contract to cultivate the land. Appellant testified that he would not have sold appellees the mules on a credit, except for the contract for cultivation of the land. The note contained no reservation of title in the mules, and no lien was retained in the instrument itself, or by mortgage or otherwise. Appellees gave a cross-bond and retained possession of the mules. The justice of the peace dismissed the writ of replevin, entered judgment for defendants, and appellant appealed to the circuit court, where a trial anew was had. At the conclusion of appellant’s testimony, the court instructed a verdict for appellees, and the case is here on appeal.

In answer to a question as to what the terms of the contract to cultivate the land were, appellant answered: “Well, he was to cultivate the land and give me half, cultivate and gather, etc.” In another place he called him a sharecropper. From the evidence we are left in doubt as to the relation existing between them, whether landowner and sharecropper, or landlord and tenant. If appellees were sharecroppers, then the relation of landlord and tenant did not exist. Woodson v. McLaughlin, 150 Ark. 340, 234 S. W. 185. If the relation of landlord and tenant existed by virtue of the oral contract, which we assume to be the fact, since both parties have apparently so treated it, ¡appellant would have a lien on the crop grown by the tenant for the amount of this note, under § 6890, O. & M. Digest, giving the landlord a lien on the crop raised upon the premises for advances made by him to enable the tenant to make the crop. This statute does not give the landlord a lien on the things advanced themselves, in this case the mules, but only on the crop raised upon the premises. Since there was no crop raised on the premises, there can be no lien. The party must bring himself within the terms of the statute before he is entitled to a lien. Kaufman v. Underwood, 83 Ark. 118, 102 S. W. 718, 119 A. S. R. 121; Etheridge v. Bird Brothers, 176 Ark. 649, 4 S. W. (2d) 9.

Appellant contends, however, that the contract to cultivate the land and the sale and purchase of the mules were one entire contract; that appellant sold appellees the mules to enable them to cultivate the land, and as a further provision of the rental contract, wholly on a credit, to he paid for ten months later; and that, having taken possession of the land and the mules under this contract, appellees breached it by refusing to cultivate the land and removing therefrom. Assuming that this contention is true, still was replevin the proper action?

It is well settled that the action of replevin cannot be maintained merely for the collection of a debt, but is purely a possessory action for the recovery of specific personal property. Spear v. Arkansas National Bank, 111 Ark. 29, 163 S. W. 508, Ann. Cas. 1916A, 735; Jones v. Keebey, 159 Ark. 586, 252 S. W. 591. It is undisputed that appellant sold appellees the mules outright, even though he did so in connection with the rental contract, and even though he would not have done so but for the rental contract. He retained no title to the property, therefore title to the property passed to appellees. “Property in defendant is a good defense in an action o.f replevin, and this is. ordinarily true whether it be an absolute or a special or qualified property in the goods which are the subject-matter of the litigation.” 34 C. J. 1414.

Appellant might have maintained an action to establish and enforce a. lien on the mules under the vendor’s lien statute, after breach of the contract by appellee for the rental of the land, but the action of replevin will not lie. To maintain replevin, plaintiff must show title in the property, and a landlord’s lien is not sufficient to sustain the action. Security Bank & Trust Co. v. Bond, 132 Ark. 592, 201 S. W. 820; Brown & Hackney, Inc., v. Lovelace, 152 Ark. 540, 239 S. W. 21. Having parted with the title to the property by the sale and delivery of possession, appellant is precluded from maintaining this action.

Affirmed.


author: MoHaNey, J.

text:
    Wade v. Saffell.
    Opinion delivered October 8, 1928.

      B. G. Waldron and Smith & .Blackford, for appellant.

      L. B. Poindexter and J. H. Townsend, for appellee.
   MoHaNey, J.

On March 3, 1920, appellee’s mother, Zora 'Saffell, now Zora Claxton, as his guardian, together with 'Cecil Saffell, an adult brother of appellee, executed to the Bant of Black Bock a joint and several promissory note for $1,500, due January 1, 1921, with interest at 8 per cent, per annum until paid. This $1,500' was borrowed to pay one-half the purchase price of a certain tract of land, title to which was taken in the name of Cecil Saffell and appellee, each of whom furnished an additional $750' to complete the purchase price thereof. To secure said note to the Bank of Black Bock, the same parties executing the note executed and delivered to the bank a deed of trust on the land so purchased. Appellee was born September 9, 1901, and, at the time of the execution of this note and mortgage, was little more than eighteen years of age. Some time thereafter the Bank of Black Bock transferred this note and mortgage, with others, to the Liberty Central Trust Company of St. Louis, Missouri, to secure money borrowed from it. Later the Bank of Black Rock became insolvent, and was taken over 'by the Bank Commissioner. This suit was instituted by the Bank Commissioner and the Liberty Central Trust Company, of St. Louis, Missouri, for the purpose of foreclosing the deed of trust securing said note.

Appellee’s guardian did not apply to the probate court for an order authorizing- her to purchase said land with the funds of her ward, nor for an order authorizing her to borrow said money for her ward, or to execute the note and deed of trust for same, nor did she secure an order of the probate court approving same.

The description of the land in the deed of trust was erroneous, and the complaint in the case above mentioned followed the description as set out in the deed of trust. The makers of the note were made parties to this action, but it nowhere appears, either in the complaint or in the decree rendered thereon, that appellee was a minor. The foreclosure decree was rendered September 27, 1921. At that time plaintiff was only a few days over twenty years of age.

This decree was taken by default. He was not served with a summons, as the statute provides, and no defense was made for him in that action. No answer was filed by his regular guardian, and no guardian ad litem was appointed to defend for him, but judgment was rendered against him and the makers of said note, and the land was ordered sold, a commissioner being appointed for this purpose. A. sale was attempted to be made by the commissioner on December 31, 1925. Appellee appeared at the time and place the sale was to be had, and objected to the sale proceeding, and no sale was consummated. He thereupon filed in the chancery court his petition or complaint to vacate the decree of September 27, 1921, making the appellant a defendant therein, for the reason that in the meantime the Bank Commissioner had paid off the debts of the Bank of Black Rock to the Liberty 'Central Trust Company, and "had secured a reassignment to him of the assets of said bank in its bands, which he in burn had sold to appellant. He exhibited a copy of said decree to his complaint, and alleged that the proceedings were erroneous, in that he was -an infant at the time of the rendition of said decree, and that no defense had been made for him therein; that the fact that he was a minor did not appear in the record of said proceeding, and that he had a meritorious defense to that action, for the reason that, being the owner of an undivided one-half interest in the land, the note arid deed of trust upon which the suit was had were executed without authority by his guardian from the probate court, without appraisal of his interest therein, and without approval from any court; that the loan was secured by his guardian for a purpose other than his support and education, and that his interest in said land was of a value of twice the amount of the loan at the time it was obtained. He further alleged that there was a patent error set out in the description of said lands in the decree and deed of trust, as well as in the complaint in said suit, .and that a sale thereof under said description would affect the sale so advertised to his disadvantage.

Appellant filed an answer and cross-complaint, denying that the proceedings in the original foreclosure were erroneous, and that appellee was a minor at the time. He admitted the incorrectness of the description of the lands in the deed of trust and in the decree based thereon. He set out what he contended to be a correct description of the land intended to be inserted in the deed of trust and in the decree, and prayed that the original decree be reformed so as to properly describe the lands in controversy. He further pleaded the statute of limitations against appellee, claiming that he was barred thereby from prosecuting this suit to set aside the former decree.

The court entered a decree setting aside the original judgment and decree of foreclosure in so far as it applied to appellee, Holly Saffell, and permitted the original judgment and decree to stand as to the other judgment debtors, and ordered the undivided one-half interest of Cecil Saif ell in said land to 'be sold. Hopkins Wade only has appealed from such judgment.

Appellant contends that, by § 6277, C. & M. Digest, appellee is barred from maintaining this action. This section is as follows:

“It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age, but in any case in which, but for this section, such a reservation would have been proper, the infant, within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.”

Appellant says that, since Holly Saffell was twenty-one years of age September 9,1922, he had until September 9, 1923, to bring an action to set aside said judgment, and that, if he desired to avail himself of his rights under this section, he should have filed his suit within that time; that he did not do so, but filed it on December 31, 1925, more than three years after the time permitted by the statute. This contention might be true if the fact of his minority appeared in the record of the proceedings in the original suit to foreclose the mortgage. It is admitted that no defense was made for him in the original action, no answer was filed, no proper service was had upon him, as required by § 1153, C. & M. Digest, or at least the officer’s return does not show it, and the ap-pellee’s nonage does not appear. In Pinchback v. Graves, 42 Ark. 222, this court said:

“No judgment should he rendered affecting the interests of an infant until after defense by guardian, and this defense should not be a mere perfunctory and formal one, but real and earnest. He should put in issue, and require proof of, every material allegation of a complaint prejudicial to the infant, whether it be true or not. He is not required to verify the answer, and can maJke no concessions on his own knowledge. He must put and keep the plaintiff at arm’s length. These are wise provisions, and they are so far imperative.” See Ross v. Stroud, 173 Ark. 66, 291 S. W. 996.

It is not contended that the former judgment was not erroneous, hut only that he was barred by the above statute of limitation. 'Counsel have apparently overlooked § 6290, C. & M. Digest, which is as follows:

“The court in which a .judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order: * * * Fifth. For erroneous proceedings ag-ainst an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.”

This is the section applicable in this case. Erroneous proceedings were had against appellee, an infant, and-the condition of such infancy did not appear in the record. There was error in the proceedings by proceeding to judgment against an infant without any defense being made for him. There is no statute of limitations applying to such condition, and § 6277 is not available. That section is applicable to the 8th subdivision of § 6290, and not to the 5th. Paragould Trust Co. v. Perrin, 103 Ark. 67, 145 S. W. 886; Brinkley v. Wales-Riggs Plantations, 108 Ark. 47, 156 S. W. 185; Purcell v. Gann, 113 Ark. 332, 168 S. W. 1102.

In Foohs v. Billy, 95 Ark. 302-308, 129 S. W. 1104, this court said:

“Again, counsel for appellant urges a reversal on the ground that appellee had filed a prior application to vacate the judgment, but it is conceded that this was dismissed on his own motion, without prejudice- to a renewal of it, and we have no statute limiting the time within which the moving party must act to bring himself within the terms of § 4431, supra.”

■Section 4431 of Kirby’s Digest is the same as § 6290, C. & M. Digest.

We think the appellee set out a sufficient statement to show that he had a defense to the action. The allegations with reference to this defense have already been set out, and it is not necessary to repeat them here. Appellant says that the only issue presented is whether or not the appellee is barred (by the statute of limitation, or availed himself of the benefits of § 6277, C. & M. Digest, and, as we have already shown, this section is inapplicable, and the judgment must be affirmed.