author: Mehaepy, J.

text:
    Hempstead County v. Star Publishing Company.
    4-2765
    Opinion delivered December 5, 1932.

      Garrigcm & Monroe, for appellant.

      W. S. Atkins and 0. A. Graves, for appellee.
   Mehaepy, J.

The appellee, Star Publishing Company, filed its claim in the county court of Hempstead County for $1,211.50, which was 50 cents a tract for publishing delinquent tax list. The court disallowed the claim as filed, but did allow a claim of $605.75.

An appeal was prosecuted to the circuit court of Hempstead County, where it was tried, and the court instructed the jury to find for the plaintiff, Star Publishing Company, the full amount of $1,211.50. There was a verdict and judgment for that amount. The ease is here on appeal.

The evidence tended to show that the county judge had refused to pay more than 25 cents for each separate tract of land.

Judge Higgason testified that Mr. Hawkins, the publisher of the Washington Telegraph, a paper published in Hempstead County, agreed to publish the list for 25 cents a tract, and Hawkins himself testified that he agreed to publish it for that amount. Several witnesses testified about conversations between the county .judge and the publisher of the Star Publishing Company, and the publisher of the paper testified that he never did agree that he would publish the list in the Star Publishing Company for 25 cents a tract. The evidence shows that the connty judge stated in all these conversations that he would not pay more than 25 cents a tract.

The evidence showed that the clerk delivered the list to the Star Publishing Company; that it was customary to do this, and that it was customary to publish the list in one paper one time, and the other paper the next time.

The law provides, in act 92 of the Acts of 1929, that the fees for advertising the sale of delinquent land shall be 50 cents for each tract or town lot advertised to be sold for delinquent taxes, which amount shall be added to the tax as cost of the sale. The act then provides how the fees shall be computed and paid, etc.

The effect of this act is to require the taxpayer to pay 50 cents for advertising, and that this 50 cents shall be added to the cost. We know of no law, however, which prohibits the county judge from making a contract with the publisher of a paper to advertise the list for a smaller sum, 'and, if such contract is made, it is binding between the parties to the contract, the publisher and the county.

There is some conflict in the evidence, and we think it was a question of fact as to whether there was a contract made between the 'Star Publishing Company and the county judge. This question should be submitted to and determined by the jury.

The judgment of the circuit court is therefore reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: McHaNey, J.

license: Public Domain

text:
    Reed v. Rea-Patterson Milling Company.
    4-2766
    Opinion delivered December 5, 1932.

      Partain & Agee, for appellant.

      Roy Gean, for appellee.
   McHaNey, J.

Appellee sued appellants in one count of tlie complaint on open account in the sum of $847.88, and in another count on a promissory nóte in the sum of $1,276.85, for flour sold and delivered by it to them. Appellants do not dispute the amount of the indebtedness, but defend on the ground, first, that the last car of flour bought was damaged, unfit for use and was not of the quality expressly warranted by appellee, with the result that a part of the flour remained unsold and unsalable, and a part .was returned by their customers, a total of less than fifty sacks of forty-eight pounds, worth, at retail, $1.15 per sack; and, second, that the flour they did sell, and which was not returned by their customers, was of such inferior quality that it caused them the loss of about thirty customers or more, entailing a consequent damage to them of $5,000- in loss of future profits, good will, etc., for which amount judgment was prayed in a cross-complaint. They also claimed damages to the amount of the purchase price of the flour because of its worthless condition, which they claimed in offset of their indebtedness.

The court sustained a demurrer to the cross-complaint for damages for loss of future profits on customers lost, and for damages to good will, and refused to permit any proof in support thereof. At the conclusion of the testimony, appellee offered to abate its claim to the extent of 50 sacks of flour at $1.15 per sack, and the court directed a verdict for it for the balance, all over the objections and exceptions of appellant.

It is undisputed that appellants had on hand less than 50 sacks of 24’s and 48’s of all flour bought from appellee that he either did not sell or that were returned to him. All the other flour had been sold at the full retail price, and no customer had asked for or been refunded the purchase price therefor. Appellants say the flour was expressly warranted to be absolutely satisfactory in every way. Mr. T. Gruy Reed testified: “Mr. Roy Fornin, agent for this State, and Mr. Evans (meaning appellee’s agents) stated in front of our store that any flour that was not absolutely satisfactory in every way could be returned.” He further testified that it was with that understanding that he bought the flour. Since appellees have made good that warranty by giving credit for the fifty sacks of flour, it is difficult to perceive why it should be held liable for the difference between the value of the flour received and its value if it had been as warranted. Appellants did not return, or offer to return, any of the flour to appellee. No witness testified that the flour was damaged when received by appellants, but, assuming this to be the effect of the testimony, the express warranty, also assuming there was one, was that, if it was not satisfactory in every way, it might be returned. But appellants returned no flour to appellee, and made no complaint about the flour in any way until this suit was brought. They were buying from appellee and selling to their trade about one car per month. The last car, the one in controversy, was delivered February 9,1931. The note which is the basis of the second count in the complaint was not executed until April 1, 1931, and in the meantime, and long after the flour had been sold, appellants wrote appellee regarding their indebtedness to it, but no claim was made that the flour was unsatisfactory.

Moreover, this, is a sale by one dealer to another, and, as said in Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288: “In the sale of provisions by one dealer to another in the course of general commercial transactions, the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness. 77 But see exception to this rule in Bunch v. Weil, 72 Ark. 343, 80 S. W. 582. Appellants cannot therefore base their action on implied warranty. The only warranty attempted to be proved was an express one, as already stated, and, of course, there could not be both an express warranty and an implied warranty of fitness or satisfaction in the sale of the flour. “The reason is,” said this court in J. S. Elder Grocery Co. v. Applegate, 151 Ark. 565, 237 S. W. 92, “that, if there was an express warranty upon this subject, it would govern as being the contract between the parties. There would be no room for an implied warranty if there was an express warranty on the same subject.77 Reliance is placed on Hixon v. Cook, 130 Ark. 401, 197 S. W. 698, but it has no application here. This is a sale from dealer to dealer. ‘

For the same and other reasons appellants were not entitled to recover future profits, or loss of customer's, or damage to their business or for loss of good will. The express warranty, assuming it to be established by the evidence, precludes it. Such damages were not in the contemplation of the parties. They were not included in the contract by the express warranty. Unsatisfactory goods might be returned for credit. This appellants have received, and they are in no position to claim more. Such damages are also too speculative, remote and uncertain. 55 C. J. 1190, § 1166; Goodell v. Bluff City Lumber Co., 57 Ark. 203, 21 S. W. 104; Bunch v. Weil, 72 Ark. 343, 80 S. W. 582.

The court correctly instructed a verdict for appellee, and this judgment is accordingly affirmed.


author: Butler, J.

text:
    Brookfield v. Harahan Viaduct Improvement District.
    4-2768
    Opinion delivered December 5, 1932.

      J. F. Gautney and J. G. Brookfield, for appellant.

      J. L. Shaver and S. W. Ogan, for appellee.
   Butler, J.

The Harahan Viaduct Improvement District was created by an act of the General Assembly of 1923 for the purpose of constructing and maintaining an approach to the Harahan bridge spanning the Mississippi River opposite the city of Memphis. This approach is in Crittenden County, and is known as the Harahan Viaduct. Shortly after the creation of the district, its commissioners met, and Renfrow Turner was elected chairman, and, on the first day of November, 1923, by resolution duly passed, it employed the appellant and M. B. Norfleet, Jr., attorneys, to represent the said district for an agreed sum of $7,500 and other necessary expenses while engaged in the discharge of their duties. Sixty per cent! of the fee was to be paid upon the completion of the transcript of the proceedings of said district for the bond issue, and the balance due and payable at the discretion of tlie board. It developed that the commission was unable to function under the act, and the board met on October 28, 1924, for the purpose of arranging for the obligations it had incurred, which included some preliminary expenses for engineering and legal services. On that occasion the board passed the following resolution:

“In consideration of legal services performed to date by J. C. Brookfield and M. B. Norfleet, Jr., attorneys for the district, the district having heretofore issued to them certificates of indebtedness in the total sum of two thousand dollars ($2,000) on their fee, as provided by contract between the district and them, in the total sum of seventy-five hundred dollars ($7,500), it being now the purpose of said district to suspend further expenses for legal services until hereafter decided by a majority of the board of commissioners of the district. It is hereby ordered by the board that the president and secretary issue certificates of indebtedness of $500 each to said attorneys in consideration of their preliminary legal services to date.

‘ ‘ That this provision of the board shall not be deemed to effect said contract of said attorneys as to the cancellation thereof, but the board, in its best judgment, deems said attorneys fully paid to date for their services.

“It is agreed that, in the event said district does not operate further and function, that said legal services have been fully paid to date.”

On the 24th of March, 1925, the board had a meeting and adopted a resolution reciting the fact that the district had been unable to function, and that certain necessary preliminary steps had been taken and expenses incident thereto incurred, including engineering, legal and incidental services, in a total amount of $15,698.59; that the Supreme Court had held that such preliminary expenses are binding liens upon all the real property within the district, and provided for the payment of these from tolls to be collected under the supervision of the county court of Crittenden County.

There were some other meetings of the board, the final meeting appearing to have been on the 16th of October, 1926, at which time the preliminary expenses referred to in the resolution of March 24, 1925, had been paid. The Harahan Viaduct, in the meantime, had been taken over and constructed by the State Highway Department, and the cost of constructing the same and the preliminary expenses had been paid out of tolls collected from the wooden structure, and the structure as finally completed became a part of the State Highway system, and, as such, is now maintained by the Highway Commission. It is undisputed that the appellant, Brookfield, has received the amount authorized by the resolution of October 28,1924. The last payment of $500 was in the form of a voucher which was issued to him on October 28th, following. On the 27th day of November, 1929, the appellant filed suit against the improvement district in the chancery court of Crittenden County, Arkansas, (cause No. 3830) in which he sought to recover judgment against the defendant district in the sum of $2,366 as balance claimed by him under his contract of employment aforesaid. On March 17,1930, the court rendered judgment by default against the district for the sum sued for and retained jurisdiction of the cause, for the purpose of fixing a lien and appointing a receiver to enforce the same if the judgment was not paid within sixty days, and for that purpose, continued the cause.

On the 14th day of July of the same year the appellant filed a separate complaint in the said court (cause No. 3939), setting up the judgment he had previously obtained, and asking for a receiver and that a tax be levied upon the lands to pay his judgment. Judgment was rendered on the supplemental complaint by the chancellor in vacation in conformity with its prayer. Various newspapers, having a circulation in eastern Arkansas, published the action of the court as a news item, and by this means it was brought to the attention of the interveners, who are landowners and taxpayers within the boundaries of the district and against whose lands the tax was to be levied. This action was instituted by the St. Francis Levee Board, and two of its members, as taxpayers, to vacate the decrees aforesaid, on the grounds that they were rendered without notice, and that there was a valid defense to the claim of Brookfield. Testimony was taken, and, by agreement, this case was submitted to the chancellor on the pleadings and testimony adduced, who entered a decree finding that, at the time of the rendition of the decree in the case of Brookfield v. Imp. Dist., cause No. 3830, the court was without jurisdiction of the. defendant district, and appellees were without knowledge of the suit prior to the rendition of the decree, and that “the court was not correctly advised as to the service of summons on it and waivers by the commissioners of defendant district, and was not advised of the circumstances under which the defendant had paid to the plaintiff the sum of $1,500; that there is a valid defense to the original cause of action, as alleged, in which judgment was rendered herein, against said Harahan Viaduct Improvement District, ’ ’ and, in accordance with these findings, a decree was rendered cancelling’ and setting* aside the judgment complained of and all subsequent proceedings had thereunder, and holding “that said original complaint be not dismissed, but left to the end that the said J. C. Brook-field may, if he so desires, cause proper service to be had upon said Harahan Viaduct Improvement District.”

From that decree this appeal is prosecuted, and for a reversal it is contended, first, that the board of directors of St. Francis Levee District, J. L. Williams and H. N. Pharr, being strangers to the original suit, did not have the legal right to bring an action to set aside the .judgment obtained by the appellant. The facts are that the St. Francis Levee District and the two individuals named are large landowners and taxpayers within the boundaries of the improvement district, and, while not parties to the original action by name, they are in fact the real parties in interest. In the pleading filed by them it is alleged, as a ground for the vacation of the decrees complained of, that they are such landowners and taxpayers, and the facts alleged show that the burden sought to be placed npon their lands was an illegal exaction.

Section 13, article 16, of the Constitution provides that: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” Courts of chancery are vested with the jurisdiction in actions under this constitutional provision. Harrison v. Norton, 104 Ark. 16, 148 S. W. 497. And in Seitz v. Merriwether, 114 Ark. 299, 169 S. W. 1175, cited by appellee, we held: “That provision of the Constitution does not include improvement districts, but the principle is the same, and it is the duty of the court of equity to mold a remedy for taxpayers whose interests are involved in the operation of improvement districts.” Therefore the appellees were justified in instituting suit to protect themselves and others from the alleged unlawful exaction.

It is next insisted that suits to set aside a judgment may only be for the causes mentioned in § 6290 of Crawford & Moses’ Digest, and only in the manner provided in § 6292, id., and that the allegations in the pleading filed by the appellees do not sufficiently allege the rendition of the decree for want of service of summons, and, because of that, the judgment is void. It is immaterial by what name the pleading be designated; if it contains the elements required by § 6290, it will be sufficient. The allegation of the complaint regarding the procurement of the decree without service is as follows:

“Your interveners allege that the judgment rendered in favor of the plaintiff and against the viaduct district is void for following’ reasons:

“1. That, although said judgment recites that service of personal process was had upon all of the commissioners of said district, said statement is false and untrue, and the true facts are that said commissioners of said district were not personally served with any personal process whatsoever, and that they, your interveners herein, had no knowledge that said cause of action was pending in the chancery court until notices appeared in several papers stating that all the property in said district would be sold to satisfy said judgment. ’ ’

Section 6238 of the Digest is as follows: “All judgments, orders, sentences and decrees made, rendered or pronounced by any of the courts of the State against any •‘one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences or decrees, shall be absolutely null and void.”

The proceeding in this case is for the purpose of vacating the decree complained of, and is therefore a direct attack. Hall v. Huff, 122 Ark. 67, 182 S. W. 535; Morgan v. Leon, 178 Ark. 769, 12 S. W. (2d) 404. And the allegation is sufficient to allege a fraud practiced by the successful party within the meaning of the statute. “A judgment by default, procured through the representation of plaintiff’s attorney that there was a return of service of process, when in fact there had been no service and no return of service by the officer, is a judgment obtained through ‘fraud practiced by the successful party,’ within the meaning of the fourth subdivision of § 3909, Mansf. Digest, though the attorney acted under a mistake.” Chambliss v. Reppy, 54 Ark. 539, 16 S. W. 571.

It is contended by the appellant that the proof was insufficient on the question of notice and the defense alleged, to justify the setting aside of the decree. The decree complained of, as to the service of summons, recited as follows: “And the defendant, although duly served with summons upon Renfrow Turner, chairman, and other members of its board of commissioners, as required by law, came not but made default.” On the question of service of summons, a number of witnesses testified. Appellant testified that he had caused service of summons to be had upon Renfrow Turner as chairman of the board of commissioners, and upon J. T. Robinson and R. M. Barrett, two other members of the board, and that he obtained the waivers in writing of four other of the commissioners upon the back of copies of the summons. Renfrow Turner stated that he did not remember; R. M. Barrett was not questioned about tbe service of summons; and tbe others disputed tbe testimony of tbe appellant. Tbe officers, whose duty it was to serve tbe various summons, were not called, and did not testify. Appellant testified that be bad taken all of tbe original papers to bis office to prepare tbe decree, and, after tbe same bad been approved by tbe chancellor, be bad mailed tbe decree and exhibits back to tbe clerk, but none of tbe summons could be found in the files of tbe court. There was testimony also which tended to show that Renfrow Turner was not the chairman or a member of tbe board of commissioners at tbe time of the alleged service of summons upon him, and bad not been for a considerable length of time, having resigned upon bis appointment to tbe office of county judge, and Z. T. Bragg being appointed by tbe Governor in bis stead. It therefore appears that tbe chancellor was justified in bis finding* that the court was without jurisdiction because of want of service.

There was also testimony tending to establish tbe defense alleged, but, as the chancellor did not dismiss the complaint, it would be premature to discuss that testimony or indicate our view of its weight, as under tbe decree appellant may proceed upon proper service obtained to have bis claim adjudicated.

On tbe whole, we are of tbe opinion that tbe decree of the chancellor was correct, and it is therefore affirmed.


author: Thomas C. Trimble, Jr.,

text:
    State Note Board v. State ex rel. Attorney General.
    4-2882
    Opinion delivered December 5, 1932.

      Coleman .& Riddick, for appellant.

      Hal L. Norwood, Attorney General and Walter L. Pope, Assistant, for appellee.
   Thomas C. Trimble, Jr.,

Special Justice. Appellee, State of Arkansas, through her Attorney General, filed suit against the State Note Board, attacking as unconstitutional § 17 of act No. 15, passed at the second extraordinary session of the Legislature of 1932, the same being in words and figures as follows, to-wit:

“ Section 17. It shall be the duty of the State Note Board to issue short-term notes in lieu of all legal vouchers or warrants now or hereafter issued for work, labor, materials, or supplies, heretofore done or furnished by any contractor, subcontractor, materialman or laborer in the construction, maintenance or repair of the State Highways or for the State Highway Department upon request being made therefor by the legal holder or holders of any such obligations; such short-term notes to be in substantially the form of the short-term notes heretofore sold by said State Note Board for the State Highway Commission and executed in the same manner, bearing-interest at the rate of 5 per cent, per annum from the date of issuance, and not more than $750,000 worth of snch notes shall mature on February 1, 1934, and the maturities of the balance thereof shall be equally divided, one-half to mature on February 1, 1935, and one-half to mature on February 1,1936. The State Note Board shall use its discretion in arranging the maturity dates of the various notes issued so that any of such legal holders of said obligations shall not be given preference as to the maturity date of the notes issued to him. Said short-term notes shall be in denominations of $100, $500 and $1,000, and, if the amount due any of the legal holders of such obligations is less than the amount which can he paid by notes of those denominations, then such legal holder may pay the difference in cash and receive such note, or he may take from the State Highway Commission a voucher showing the balance that is due him and which cannot be paid in notes of that description, and which voucher shall be paid as soon as there shall be in the State Highway funds moneys available for the purpose; provided, this act shall not validate any claim, voucher, or warrant or other evidence of indebtedness issued under or pursuant to an illegal contract, and provided further that no note or notes shall be issued in lieu of any such claim in excess of $150, where such claim is based on a cost-plus contract or a contract not let on competitive bidding until such claim is approved and the issuance of such notes are authorized by the State Highway Audit Commission, or until the validity of such claim is finally adjudicated and determined by a court of competent jurisdiction. No additional highway bonds or highway notes shall be authorized, issued or sold in the calendar year of 1932, except those highway notes provided for in this section of this act to be issued in lieu of legal vouchers or warrants for work, labor, material or supplies heretofore done or furnished by any contractor, subcontractor, laborer or materialman in the construction, maintenance or repair of the State Highways, or for the State Highway Department, and not more than $1,750,000 worth of highway bonds shall be issued in the calendar year of 1933 or in any calendar year thereafter, this being the approximate amount necessary to match Federal aid and thereby prevent the loss of such aid; and no highway bonds shall hereafter be issued except with the approval of a majority of the State Note Board including the Governor, or with the approval of at least seven members of the State Note Board, nor shall any highway bonds be issued in any year in excess of the amount of Federal aid allotted to Arkansas under Acts of Congress for that particular year. No bonds or other evidences of indebtedness shall ever be sold under the provisions of this act for less than par.”

The ground upon which the validity of the statute was assailed being that said section was not within the purview of the Governor’s proclamation convening the General Assembly, and asking that the State Note Board, which met and adopted resolutions for the issuance of $2,100,000 in short-term State notes as provided under said section of said act No. 15, be forever enjoined and restrained from causing the printing or lithographing of said State notes and from issuing the same.

Appellant demurred to the complaint because it did not state a cause of action, and that the appellee was not entitled to the relief prayed for, and that the said State Note Board was acting within its authority in issuing the notes mentioned in the complaint.

The demurrer to the complaint was overruled, and the appellant elected to stand on its demurrer, and a decree was rendered perpetually enjoining the board from issuing said short-term notes.

The sole question involved is whether or not the provisions of § 17 of said act are reasonably within the purposes specified within the Governor’s call.

The Constitution of 1874, in reference to extraordinary sessions of the General Assembly, contains the following provisions, to-wit: “The Governor may, by proclamation, on extraordinary occasion convene the General Assembly at the seat of government or at a different place, if that shall have become, since their last adjournment, dangerous from any enemy or contagions disease, and lie shall specify in Ms proclamation the purposes for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.”

The General Assembly of the State of Arkansas convened in special session on March 15, 1932, by proclamation of the Governor of the State of Arkansas, same having been issued on March 12, 1932, that part of the call affecting this suit being as follows, to-wit:

“First. To authorize the issuance of revenue bonds that will bring about an extension of the maturity dates of the road district bonds which the State is now paying under the Martineau road law and thereby prevent a default in the payment of such bonds, and render available sufficient funds for the maintenance of the State Highways and for matching Federal aid for new construction. ’ ’

As will be observed from the proclamation of the Governor, and the act passed by the General Assembly, said call was made for the following reasons: First, to prevent a default in the payment of the road district bonds which the State was paying under the Martineau road law. Second, to render available sufficient funds for the maintenance of the State Highways. Third, to render available sufficient funds for matching Federal aid for new construction.

All of the above subjects are so closely connected and dependent upon each other that no one of them can be entirely segregated from the whole and treated by itself. Act No. 15 embraced all of the subjects and made provisions for each.

The rule announced in decisions of this court, in the cases of Jones v. State, 154 Ark. 288, 242 S. W. 377, and Sims v. Weldon, 165 Ark. 18, 263 S. W. 42, are to the effect that lawmakers when convened in extraordinary session, “may act freely within the call and legislate upon any or all of the subjects specified, or upon any part of a subject; and every presumption will be made in favor of the regularity of its action,” and that the provisions of the Constitution in question merely require the Governor “to confine legislation to particular subjects and not to restrict the details springing out of the subjects enumerated in the call,” and is supported by many other authorities. 59 C. J. 527; State v. Shores, 7 S. E. 31 W. Va. 491, 413, 13 Am. St. Rep. 875; Stockard v. Reid, 57 Tex. Civ. App. 126, 121 S. W. 1144; In re Governor’s Proclamation, 19 Colo. 333, 35 Pac. 530; In re Amendments of Legislative Bills, 19 Colo. 356, 35 Pac. 917; McKee v. English, 147 Ark. 449, 228 S. W. 43; Road Imp. Dist. v. Sayle, 154 Ark. 551, 243 S. W. 825.

The subject embraced in the call should be considered and construed in its entirety and not in subdivisions or detached parts, giving the language its ordinary meaning. In re Likins, 223 Pa. 456, 72 Atl. 858.

As has been observed, the purposes, as indicated in the proclamation, for the calling of said extraordinary session of the General Assembly, were for the three reasons above set forth. The use of the language authorizing the Legislature to issue revenue bonds was merely a suggestion as to how to dispose of the subject-matter designated in the call, and while the Governor may make such suggestions, such suggestions or directions are not binding on the Legislature or restrictive of the legislative power, and the action of the Governor in prescribing in his call the character of bonds to be issued to bring about the necessary legislation is treated as being merely advisory. 25 R. C. L. 805.

“It was never contemplated by the Constitution that the Governor should restrict the Legislature as to details, methods or manner in bringing about the end sought.” Ex parte Fulton, 86 Tex. Cr. R. 149, 215 S. W. 331.

“Specific instructions on the subject-matter in the call can, at best, be regarded only as advisory and not as limiting* the character of legislation that might be had upon the general subject.” People v. Johnson, 23 Colo. 150, 46 Pac. 681.

We are not unmindful of the fact that the construction of the Legislature is not conclusive upon the court, and too great a latitude might abrogate the restrictions of the Constitution, yet it is entitled to the highest consideration by the court. Long v. State, 58 Tex. Cr. R. 209, 127 S. W. 208.

In the case of State v. Clancy, 30 Mont. 529, 77 Pac. 314, the court said:1‘ The Governor can not in advance tie the hands of the Legislature. Any enactment which will meet the ends sought to be accomplished in his call must be deemed to be embraced within the limits of the subjects submitted for consideration. That a liberal rule for interpretation of these proclamations has been generally applied, to the end that the legislation enacted in pursuance thereof be operative, is apparent from adjudicated eases.”

We are therefore of the opinion that said § 17 of act No. 15 is within the purview of the Governor’s call, and that a fair, reasonable and correct construction of the proclamation authorized the legislation in question. This case will therefore be reversed, remanded with directions to sustain the demurrer, and for further proceedings according to law and the principles of equity and not inconsistent with this opinion.

Kirby and Mehaffy, JJ., dissent.

Humphreys, J., disqualified and not participating.


author: Smith, J.

text:
    Butler v. Arkansas Power & Light Company.
    4-2779
    Opinion delivered December 12, 1932.

      Gaviness S George, Sam, T. & Torn Poe and Donald Poe, for -appellant.

      Bose, Hemingway, Cantrell ■& Loughborough and Elmer Schoggen, for appellee.
   Smith, J.

This suit was brought by Mamie Butler to recover damages to compensate an injury alleged to have been sustained by her while she was a passenger on one of appellee’s street cars in the city of Little Bock. Two grounds of negligence were alleged. The first was that, as the plaintiff was about to alight from the street car on which she had been a passenger, the motorman started the car prematurely, after having- stopped it. But, as the plaintiff herself testified that she fell before the car was put in motion, this allegation of negligence passed out of the case.

The second ground of negligence alleged was that the motorman caused the step from which plaintiff alighted to fold up prematurely, and thus to trip her as she was alighting from the step, throwing her violently to the ground.

The defendant denied all the allegations of the complaint. The husband of the passenger was made a party plaintiff also.

The testimony on the part of plaintiffs as to the negligence was to the following effect: The street car stopped to permit two passengers, both colored women, to leave the car by the rear door. The car was stopped by the motorman applying air to the brake after he- had cut off the electric current to the motor. The rear door was then opened and the rear step let down, by the motorman turning a small lever which automatically controlled the door. After the rear door was opened and the rear step unfolded downward, one of the colored women alighted without mishap. As the other passenger, the plaintiff Mamie Butler, stepped-down on the car step with her left foot, she held to an upright rod at the side of the door; then, turning the rod loose, she placed her right foot upon the pavement, and, before she had time to remove her left foot from the rear step, it started folding up.

It appears, from the facts stated, that the instant case is very similar to the cases of Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211, 87 S. W. 644, and Oliver v. Fort Smith Light & Traction Co., 89 Ark. 222, 116 S. W. 204. The legal principles applicable to the instant case and controlling here were announced in those cases, and the instructions given in the instant case correspond to those principles as to the duty of the carrier to its passengers.

There was a verdict for the defendant, and the only error assigned for the reversal of this judgment is in the instructions given to the jury.

We have said that the instructions given upon the care due the passenger by the carrier were correct, but there was given, at the request of the defendant and over the objection of the plaintiff, an instruction numbered 12, which we think was erroneous and prejudicial. It reads as follows: “You are instructed that in no event would the defendant be liable to the plaintiff because of any condition with which the plaintiff, Mamie Butler, may be suffering’, if any, unless you further find from preponderance of the evidence that such condition was caused as a direct and proximate result of the accident alleged and on account of the negligence of the operator without the aid of any intervening cause.”

In 45 C. J., page 926, chapter Negligence, § 489, discussing intervening efficient causes, it is said: “It is well-settled that the mere fact that other causes, conditions, or agencies have intervened between defendant’s negligence and the injury for which recovery is sought is not sufficient in law to relieve defendant from liability. In other words, an intervening cause will not relieve from liability where the prior negligence was the efficient canse of tlie injury. The test is not to be found in the number of intervening events or agencies, but in their character and in the natural connection between the wrong done and the injurious consequences, and, if the injury is the natural and probable consequence of the original negligent act or omission, and is such as mig’ht reasonably have been foreseen as probable, the original wrongdoer is liable, notwithstanding the intervening act or event.” The case of Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S. W. 473, is cited in the note to the text quoted.

The law of the subject is well-settled. It was said, in the case of Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A. (N. S.) 905, that “it is a well-settled general rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. The difficulty arises in each case in applying the principle to a given state of facts.”

Instruction numbered 12, set out above, does not thus declare the law. Its purport appears to be that the defendant would not be liable, even though it were negligent, unless this negligence was the sole cause of the injury, to which no other cause contributed or intervened. As said in the Horton case, supra, the author of the original negligent act is responsible for its consequences, unless thereafter a new cause has intervened, of itself sufficient to stand as the cause of the injury, in which event the original negligence would be too remote to be charged as the proximate cause. The instruction does not conform to this view of the law, and it was therefore erroneous.

It may be doubted whether there was sufficient testimony to warrant the submission of this question to the jury. The question of liability appears to turn upon the question whether the fall of the passenger was- due to her own carelessness or to some unavoidable accident, on the one hand, or whether, on the other hand, the motorman caused the step to he prematurely folded np. In the latter case there would he liability; in the other there would not.

There was testimony tending to show that the passenger’s condition had been made worse by her conduct and confinement since her fall. Such testimony might have some relevancy on the question of the measure of damages, but it could not affect the question of the negligence of the carrier. The negligence of the carrier either caused the passenger to fall, or it did not cause her to fall, and the question of its negligence in this respect cannot be determined by a consideration of the subsequent conduct of the injured party.

No other error appears, but for the error in giving the instruction numbered 12 the .judgment must be reversed, and it is so ordered.


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    Southern Grocery Company v. Merchants’ & Planters’ Title & Investment Company. Wilkins v. Mead.
    4-2769-2770
    Opinion delivered December 12, 1932.

      Harry T. Wooldridge, for appellants.

      Bridges, McGaughy $ Bridges and Rowell i& Rowell, for appellees.
   Smith, J.

Separate snits were filed on January 17, 1931, to foreclose two different deeds of trnst. An answer was filed in each case which confessed the debt and the liens securing it, hut alleged the fact to be that the defendant debtors were earnestly endeavoring to sell the mortgaged property at private sale for the purpose of paying the debt. The depreciation of values of all kinds and everywhere was alleged, and it was prayed that the court defer and postpone the rendition of a decree condemning the mortgaged property to sale until there should be such recovery and restoration of values as would prevent the sacrifice of the property.

Without further pleadings having begn filed, no decrees of sale were rendered by the court until January 20, 1932, at which time such decrees were rendered, and pursuant thereto the mortgaged property was sold by the commissioner of the court.

The commissioner made report of these sales, to which the mortgagors filed exceptions. Exceptors alleged that the property had sold for less than the debt secured and for less than half its normal value. It was prayed, therefore, that the court refuse to confirm the sales, and that the sales be set aside and that the property be ordered resold when financial conditions had improved and there had been some recovery in commodity prices generally and in land values in particular.

The reports of sale of the commissioner and the exceptions thereto were submitted to and heard by the court, and the exceptions were overruled and the reports confirmed, and appeals have been prosecuted from those orders, which have been briefed and submitted together.

The decrees must be affirmed, for two reasons, first, because the testimony taken at the hearing- of the exceptions has not been brought into the record, and in the absence of this testimony it will be presumed that the evidence heard by the court sustained its action. Alger v. Beasley, 180 Ark. 46, 20 S. W. (2d) 317; Unionaid Life Ins. Co. v. Powers, 180 Ark. 154, 20 S. W. (2d) 610; McGowan v. Burns, 182 Ark. 506, 31 S. W. (2d) 953.

Bnt, if it were assumed that the testimony heard by the court sustained the allegations of the exceptions, we would, nevertheless, hold that the exceptions were properly overruled. The essence of the exceptions is that the sales were prematurely decreed, and should have been postponed until normal conditions had returned and normal values had been restored, and that because of the failure to postpone the rendition of the decrees of sale the mortgaged property had sold for much less than its value had been in normal times.

It appears that there was a delay of slightly more than a year in rendering the decrees of sale, although there was no denial of the allegations of the complaint praying foreclosure, and we are unwilling to hold that the court abused its discretion in refusing additional delay. It was held, in the case of Federal Land Bank v. Blackshear, 183 Ark. 648, 38 S. W. (2d) 30, that a decree allowing eleven months and thirty days to pay the mortgage indebtedness after foreclosure was unreasonable, and that the chancery practice requires the sale of mortgaged property, on default, within a limited time fixed by the court, which usually does not exceed six months and, in no event, extends beyond the beginning of the next ensuing term of court. The case of Taylor v. O’Kane, 185 Ark. 782, 49 S. W. (2d) 400, is to the same effect.

There was no allegation of fraud or other inequitable conduct relating to either sale, except only that the property did not sell for a sufficient price.

It is well settled, however, that mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness, or other inequitable conduct, in connection with a judicial sale, is, of itself, insufficient to justify the court in setting the sale aside and refusing confirmation thereof. Federal Land Bank v. Ballentine, ante p. 141.

The decrees are correct, and mnst be affirmed, and it is so ordered.


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    Poch v. Taylor.
    4-2761
    Opinion delivered December 12, 1932.

      Tom F. Digby, for appellant.

      Robinson, House & Moses and W. H. Holmes, for appellee.

      Roberts & Stubblefield, amici curiae.

   Smith, J.

Suits were brought by the Bank Commissioner (who alleged that he was liquidating the assets of the Federal Bank & Trust Company) against J. K. Poch, Jr., and E. O. Manees, Sr., to enforce an assessment against them as stockholders in said bank. The cases were consolidated and tried together.

Poch filed an answer, in which he denied all the material allegations of the complaint, and alleged that all of the assets of the insolvent bank had been sold and assigned before the Bank Commissioner had taken charge of said bank, and that the assets of said bank were being liquidated by trustees for said assignees before the plaintiff Bank Commissioner attempted to take charge of the affairs of said bank, and that said trustees have, since that date, continued to manage and liquidate said bank. Manees filed a similar answer, and alleged, in addition, that he had sold his stock in the bank and the same had been transferred upon the books of that corporation before the Bank Commissioner had taken charge thereof. It is undisputed that prior to December 1, 1930, Poch owned stock in the bank of the par value of $2,000, and Manees owned stock of the par value of $8,000.

On November 18, 1930, an agreement was entered into between the directors of the Federal Bank & Trust Company, as parties of the first part, and the other banks in the cities of Little Bock and North Little Bock, comprising the Little Bock Clearing House Association, as parties of the second part, to the following effect: It was recited that the Federal Bank was experiencing a heavy withdrawal of deposits, which endangered its ability to continue in business, and that it had applied to the clearing house for assistance to enable it to remain open.

In consideration of the terms recited, it was agreed that:

‘ ‘ (1) First parties will cause Federal Bank & Trust Company to pledge to second parties all of its assets for the security of second parties’ undertakings herein.

“(2) Second parties hereby severally guarantee and promise each in the proportion hereinafter set out, to advance to Federal Bank & Trust Company sufficient funds as a loan, if necessary, so that each depositor of said company, as of the close of business on November 18, 1930, (except depositors of public funds or other deposits now secured as provided by law) may be paid upon demand.”

The third paragraph names the proportionate parts of the advances which each of the member banks of the clearing house agreed to make.

“ (4) The loans herein provided for to be made to Federal Bank & Trust Company by second parties will be evidenced by notes of Federal Bank & Trust Company executed to T. W. Kirkwood, as trustee, payable upon demand, at six per cent. (6%) interest, and specially secured by collateral from the general assets, acceptable to second parties. The collection of the proceeds of such collateral will be held in a separate account to the credit of T. W. Kirkwood, trustee, and applied as payment to second parties or loaned as approved by second parties for their account. Second parties will nominate an agent to serve with the executive committee of Federal Bank & Trust Company for that purpose.

“ (5) This guarantee and promise shall continue in force as to such deposits, as of the close of business on November 18,1930, for a period of ninety days (90) from this date. Each of first parties hereby guarantees second parties, up to the amount set opposite his signature, against any loss on account of such loans. It is expressly agreed, however, that the amount of the respective guarantees of the parties of the first part hereto is for the use and benefit of all of said parties of the second part collectively, to be prorated among them in proportion to the amount that each of said second parties shall loan to Federal Bank & Trust Company, as provided for herein.

“ (6) It is further agreed that, if said Federal Bank & Trust Company shall be forced to suspend business and liquidate its affairs, such liquidation shall taire place according to the laws of Arkansas, and that the parties of the second part shall be paid, first, out of the assets so pledged; second, out of the general assets of said bank; third, out of the statutory liability of all of its stockholders, including the first parties; and fourth, by recourse upon this guaranty of the signers hereto and according to its terms.

“(7) First parties agree that all due proceedings will be taken at all times by the board of directors of the Federal Bank & Trust Company for the due authority for such loans and for securing second parties according to the terms hereof.

“(8) It is agreed that this document is prepared in an emergency, and the first parties hereto agree to execute such supplements, additions and redrafts hereof as may be required by second parties as necessary to more fully express and carry out the intentions of the parties hereto, and execute such instruments in such number as may be necessary to supply each of second parties with a signed copy hereof. ’ ’

This eighth paragraph contains the names of the directors and stockholders contracting as parties of the first part, and opposite each name was written: “Amount of the respective guaranties of the parties of the first part hereto.” Opposite the name of Manees was written $2,500, while $2,000 was written opposite that of Poch. Both were directors of the Federal Bank & Trust Company.

Upon the execution of this agreement the lending-banks made the advances contemplated therein. The “run” on the Federal Bank & Trust Company continued in increasing volume until finally its officers decided to close its doors and to pay all depositors in full. This was done on or about January 15, 1931, and all depositors were invited to withdraw their deposits, and the lending banks furnished the money required for that purpose. Practically all of the deposits were withdrawn.

In order to secure the advances made by the lending banks, the assets of the Federal Bank & Trust Company were pledged to five trustees, two being named by the parties of the first part, two by the parties of the second part, and these fonr trustees selected the fifth.

Although the Federal Bank & Trust Company ceased to function as a bank- after January 15, 1931, it proceeded to liquidate its affairs through the five trustees. This method of liquidation continued until August 10, 1931, at which time the State Bank Commissioner took over its'assets for the purpose of liquidation, and levied the assessment against the stockholders which culminated in this lawsuit.

Judgment was rendered against both Poch and Manees for the amounts sued for. For the reversal of this judgment, it is first insisted that the suit is, in effect, one by the assignees of the assigned liability of the stockholders, and that such suits cannot be maintained, as such suits can be maintained- only by the State Bank Commissioner/and cases are cited to that effect.

We think, however, that the undisputed testimony shows that there was no sale of any of the assets of the insolvent bank. The transaction was not a sale, but a loan of money, with a pledge, as security therefor, of the bank’s assets, including the respective' amounts guaranteed by the directors and stockholders who signed the original contract pledging the assets.

No one questions the good faith of the transaction. It was an attempt to keep afloat a sinking corporation, and there is nothing about the transaction which operated to discharge the stockholders from the liability imposed upon them by law. Depositors appear to have been paid, but they were paid with borrowed money, and there appears to be other creditors. In any event it is definitely settled that the action of the Bank Commissioner in levying an assessment against the stockholders is conclusive as to the necessity for the call and the amount to "be assessed against the stockholders. Davis v. Moore, 130 Ark. 128, 197 S. W. 295; Aber v. Maxwell, 140 Ark. 203, 215 S. W. 389.

The liability of stockholders is not- confined to re- ' compensing depositors. By § 702, Crawford & Moses’ Digest, it is provided that “the stockholders»of every bank doing business in this State shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock.”

It is our opinion that, under the facts stated, the lending banks were not purchasers, but were creditors. The greatest advantage promised the lending banks under the contract was the return of their money, with six per cent, for its use, and as creditors they are entitled to participate in the proceeds of any money derived from the stockholders under the Bank Commissioner’s assessments.

It appears that on December 15, 1930, E. O. Manees transferred $7,500 worth of his stock to his son, E. 0. Manees, Jr., and that new stock was issued by the officers of the Federal Bank & Trust Company to the transferee, and the. bank paid a dividend to him in January, 1931. In support of the validity of this transaction, Manees offered to prove that Solon Humphreys, as his representative, discussed with a Deputy Bank Commissioner the question whether the Banking Department would approve the transfer of stock owned by Manees to his son, and was assured by the Deputy Bank Commissioner that such transfer would be approved by the State Banking Department. This proffered testimony was excluded, for the reason, no doubt, that, although the Commissioner or his deputy had stated the transfer would be approved, it had not been approved, certainly not in the manner provided by law.

By § 2 of act 102 of the Acts of 1929 (Acts 1929, page 510), it is provided that “whenever any stockholder may wish to transfer his stock, certificates in duplicate of such transfer, signed by the president and cashier or secretary, and setting forth the name and residence of the transferrer and transferee, shall first be sent to the Bank Commissioner,” and that officer is required to indorse thereon his approval or disapproval of the transfer, and to forward the certificate bearing his indorsement to the hank, and the bank files the certificate “with the clerk of the connty in which the bank is located” for record. The statute further provides that: “If a transfer is not approved by the Bank Commissioner as above provided, the transferrer’s liability as a stockholder under § 702 of Crawford & Moses’ Digest of the Statutes óf Arkansas shall continue for one year, notwithstanding the transfer; but a transfer may be effectual to transfer title to the stock (and may, if filed with the county clerk as aforesaid, be effectual as against creditors of the transferrer) notwithstanding the Commissioner’s disapproval of the transfer.”

As the excluded testimony did not propose to show a compliance with this statute, no error was committed in excluding it.

In a brief filed by amici curiae, it is insisted that so much of § 2 of act 102 of the Acts of 1929, above quoted, as extends for a period of one year the double liability of the holder of bank stock under § 702, Crawford & Moses’ Digest, who transfers such stock without the approval of the Bank Commissioner, is violative of § 23 of article 5 of the Constitution. This section reads as follows: “No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. ’ ’

The portion of § 2 of the act 102 of the Acts of 1929 which is said to offend against the section of the Constitution, above quoted, is set out above, and we do not think it is violative of the inhibition of the Constitution.

In the case of Farris v. Wright, 158 Ark. 519, 250 S. W. 889, it was said: “This court has often considered the application and effect of this provision of the Constitution, and in each instance has adhered to the rule that ‘when a new right is conferred or cause of action given, the provisions of the Constitution quoted require the whole law governing’ the remedy to he re-enacted in order to enable the court to effect its enforcement,’ hut that if the statute ‘is original in form, and by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although it may refer to some other existing statute for the purpose of pointing out the procedure in executing the power, enforcing the right, or discharging the burden.’ (Citing cases).” See also Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41.

We have not copied § 2 of act 102 of the Acts of 1929 in full, but it suffices to say that it is original in form and prescribes the manner in which bank stock must be transferred and continues the burden or obligation of a stockholder upon one who sells his stock without complying with its provisions, this obligation being defined in an existing statute, to which reference was made. Section 702, Crawford & Moses’ Digest, was not affected by the act of 1929, except that the burden of double liability imposed by it was made to continue for a year against stockholders transferring their stock without complying with the act of 1929. Section 2 of act 102 of 1929 is therefore valid legislation. Davis v. Moore, supra; Karraken v. Ernest, 4 Fed. (2d) 404.

The judgment of the court below is correct, and it is therefore affirmed.


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    Boullioun v. Constantine.
    4-2786
    Opinion delivered December 12, 1932.

      Isgrig & Morrow, for appellant.

      G. E. McCloud and Edward B. Bownie, for appellee.
   Butler, J.

Block No. 17, Faust’s Addition to the city of Little Rock, is a square parcel of land hounded on the north by Sixth Street, on the east by Summit, on the south by Seventh Street, and on the west by Schiller. It is laid off in lots, lots Nos. 1, 2 and 3 comprising the northwest quarter of said block, lots Nos. 4, 5 and 6 the southwest quarter, lots Nos. 7, 8 and 9 the southeast quarter, and lots Nos. 10, 11 and 12 the northeast quarter. John D. Constantine owns and occupies the east 50 feet of lots 1, 2 and 3; P. W. Crawford is the owner of the east one hundred feet of lots 4, 5 and 6; "W. H. Henson owns the west fifty feet of lots 7, 8 and 9; and the appellant, Boullioun, is the owner of the northeast quarter of said block, the same being lots 10,11 and 12.

Many years ago Constantine, Crawford and Henson established their respective residences on the property owned by them, Constantine’s residence facing on Sixth Street and Crawford’s and Henson’s facing on Seventh Street. The lots on which these houses were erected were practically on a level with the streets upon which they faced, but afterwards the grade of the streets was changed, and they were cut much lower than the lots, so that now, in order to reach the properties from Sixth or Seventh streets, a steep embankment must be ascended, making access by any vehicle quite difficult. Lots 10,11 and 12 have had no structure erected thereon, and for all time have remained, and are now, vacant and uninelosed. "When the grade of the streets was changed, the owners of the several residences mentioned began to enter their properties with, their vehicles to the rear from Summit Street on the east and across a part of the uninclosed northeast quarter of the said block.

At that time Mrs. W. S. Mitchell was the owner of the uninclosed portion of the block, and remained such until a short time ago, when the property was sold under the description of lots 10, 11 and 12, block 17, to George H. Boullioun. Shortly after this purchase he began to take steps to close the passageways across his property, which resulted in the bringing of this action by the adjoining owners, who had been using the same, seeking to restrain Boullioun from interfering with their use of the right-of-way across his property. There was a decree adjudging to the appellees a right-of-way ten feet wide across the property, providing that it should be the south ten feet of lots 10, 11 and 12, but, as suggested by the appellees, it was evidently intended that the right-of-way should be the strip of land ten feet wide along the southern boundary of appellant’s property from Summit Street to the center of block 17.

The question as stated by the appellees is as follows: “Did the appellees have a right to appropriate for their own use the property of the appellant, and use the same for their convenience in going to their garages?” Ap-pellees contend that the use of the property for passage across it was justified as a way of necessity, and that right has become vested in them under the general rule that, where the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for the full period of seven years, a right to the continued user thereof is acquired by prescription, even though the public travel may have somewhere slightly deviated from the original track by reason of any obstacle that may have been placed in it. In support of this proposition, they rely upon the cases of Balmat v. Argenta, 123 Ark. 175, 184 S. W. 445, and McCracken v. State, 146 Ark. 300, 227 S. W. 8, 228 S. W. 739. It nowhere appears in the evidence that Boullioun or his grantor was also the grantor under whom the appellees hold title, and therefore, so far as they are concerned, appellant is a stranger to their title and a private way of necessity cannot be claimed by them, as there can he no private way of necessity over the lands of a stranger. The rule is laid down by Chancellor Kent in his Commentaries in speaking of a way of necessity that “it is either created by express words or it is created by operation of law as incident to the grant, so that in both cases the grant is the foundation of the title”; and Washburn, in his Treatise on Real Property, says: “A way of necessity can only be raised out of land granted or reserved by the grantor, but not out of land of a stranger, for, if one owns land to which he has no access except over the lands of a stranger, he has not thereby any right to go across these for the purpose of reaching his own.” See also Vassar v. Mitchell, 169 Ark. 792, 276 S. W. 605.

It remains to be seen whether or not the facts bring this case within the doctrine that a private way may be acquired by prescription. That such an easement may be established is well settled (Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Medlock v. Owen, 105 Ark. 460, 151 S. W. 995), but it must appear that a definite way was continuously used without interruption for a time which would presuppose an original grant, which in this State is held to be seven years; and also that, the way used was under a claim of right which was known to the owner of the soil and assented to by him. Johnson v. Lewis, 47 Ark. 66, 2 S. W. 329; Kell v. Butler, 147 Ark. 521, 227 S. W. 774.

While not universally recognized, the prevailing rule seems to be that, where the claimant has openly made continuous use of the way over occupied lands unmolested by the owner for a time sufficient to acquire title by ¿dverse possession, the use will be presumed to be under a claim of right; but where the easement enjoyed is across property that is uninclosed, it will be deemed to be by permission of the owner, and not to be adverse to his title.

■ ■ •The evidence in this case fully establishes the fact that the appellees have continuously used a passageway across the lands of the appellant for a period of time well in excess of seven years with no protest or hindrance on the part of the owner of the soil and with his knowledge; and that the way nsed was fairly definite, although varying slightly because of natural obstacles, but that at no time was the particular way which was decreed to appel-lees used, for it was obstructed so as to make its use inconvenient. We are inclined to the opinion that these facts are not sufficient to create such an easement by prescription as can now be asserted against the wishes of the owner of the soil. There is no evidence that any of the persons using the land were claiming to do so as of right and adverse to the title of the owner, nor any circumstance proved which would put the owner upon notice that the use of the way was under such claim and hostile to his ownership. During all this time, as well as now, the lands were uninclosed, and we do not think it was the duty of the owner, in order to preserve his title intact, to be continuously on his guard or to forbid his neighbors from using the property for their convenience. A number of cases are cited in the 5th note to § 39, 9 R. C. L., chapter on Easements, which support this view, and the rule that the use of uninclosed lands for passage is to be presumed permissive and not adverse is stated to be that supported by the weight of authority and based on the fact that it is not the custom in this country, or the habit of the people, to object to persons enjoying such privilege until there is a desire to inclose. Were the rule otherwise, there would be but few vacant lots in our cities and towns and uninclosed property in the country which might not be burdened by easements of passageways, as fit is a matter of common knowledge that by the indulgence and good nature of the owners people are allowed to go across these uninclosed properties at will and until such time as the owners may desire to inclose them.

Cases might, and do, arise where those using a private way over uninclosed lands may, by their conduct, openly and notoriously pursued, apprise the owner that they are claiming the way as of right and thus make their possession adverse, but there were no such circumstances in this case, and therefore the nser must be deemed to have been by consent of the owner, and, 'being permissive, conld not ripen into a legal right.

In no case to which onr attention has been called, or which we have been able to discover, in the decisions of onr own conrt, is there any real diversity of opinion, bnt, as we interpret them, all sustain the rules we have heretofore announced. There is nothing to the contrary in the cases cited by appellee. McCracken v. State, supra, merely held that the proved facts justified the conclusion that a public road had been used under circumstances manifesting a claim to the use adverse to the owner and for a sufficient time to ripen into a legal right. The case of Balmat v. Argenta, we think, is not in point, for the testimony relative to the right of the property owners to open an alley through the center of the block from north to south is unimportant as beside the real point in issue.

On the question of the presumption arising from the use for a way over unoccupied lands, the only case we have discovered which might be construed to be contrary to the doctrine we have announced is the case of McGill v. Miller, 172 Ark. 390, 288 S. W. 932. In the first para-, graph of the opinion, on page 394, this language is used: “It is true that the use originated as a permissive right and not upon any consideration, but the leng-th of time it was used without objection is sufficient to show that the use was made of the alley by the owners of the adjoining property as a matter of right and not as a matter of permission.” But this statement is qualified by the sen-, fence immediately following, and when all the language of the opinion, the nature of the property on which the easement was located, and the point decided, is considered, it is clear the writer merely intended to say that the length of time the way was used was a circumstance in connection with other circumstances in proof, sufficient to support the trial court’s finding that the way was used as of right and in hostility to the landowner’s title.

As we have seen, the claim is made by the appellee that the right to the way is not based “upon a mere accommodation, but is based upon a necessity.” We have given a reason why that claim is not tenable: i. e., that there is no testimony that appellant or his predecessors in title were appellees’ grantors, but, if that was not a fact, the claim as a way of necessity must fail, because there existed no necessity for a way over appellant’s land when appellees first purchased and built residences on their respective properties. Whatever necessity may now exist arose subsequently and was created by an agency independent of appellant or of those under whom he claims.

If there be in fact a controlling necessity for an easement on and over appellant’s land, appellees are not without a remedy; ample provision is made in our statutes (§ 5250 et seq., Crawford & Moses’ Digest) for securing the way and for compensation to the owner.

For the reasons assigned, the case is remanded with directions to set aside the decree and dismiss the complaint for want of equity.


author: Mehaffy, J.

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    Missouri Pacific Railroad Company v. Swafford.
    4-2729
    Opinion delivered November 14, 1932.

      Thos. B. Pryor and Harvey G. Combs, for appellant.

      V. D. Willis, for appellee.
   Mehaffy, J.

In 1903 the railroad company, at that time the St. Louis, Iron Mountain & Southern Railway-Company obtained a right-of-way deed from John Swaf-ford and his wife, Roxie Swafford, to a right-of-way over certain lands in Boone County, Arkansas. It after-wards built its railroad across the Swafford land, but the evidence does not show at what date. In building its railroad it made a cut of about 100 feet deep and, appellees allege, 300 feet wide. The evidence does not show the width of the cut, but it does show that it is 125 feet deep in some places, and it would necessarily be very wide.

The cut divided the land belonging to Swafford so that 50 or 60 acres was on one side of the road, and the balance on the other. This was the home of the Swaf-fords, and it was necessary to get to portions of the farm, to cross the railroad tracks where this cut was made.

The railroad company, at the time it made the cut and built its road, built a viaduct on a public road which crossed the railroad tracks immediately in front of the Swafford home. This viaduct was maintained and used by the St. Louis, Iron Mountain & Southern Railway Company, and its successor, the appellant, until 1930. In 1930 the State Highway Department made some changes in State Highway No. 43, and built a concrete viaduct across the railroad tracks a considerable distance from the place where the old wooden viaduct crossed the track. When the concrete viadnct was built, the appellant destroyed the wooden viaduct, thereby making it practically impossible for the Swaffords to g'et from their home to the land which was on the other side of the railroad track, without travelling- two or three miles.

This suit was broug-ht by appellees to recover for damages to their land caused by the destruction of the wooden viaduct.

The appellant answered denying all the material allegations of the complaint, alleging that the county court of Boone County had ordered a destruction of the viaduct, and that it acted in obedience to that order, and that it had entered into a contract with the Highway Department, which contract was introduced in evidence.

The appellees introduced evidence as to the destruction of the viaduct and the damage caused to their farm. They claim the farm was damaged in the sum of $2,000. There was a verdict and judgment for $1,000, and the case is here on appeal.

At the time the viaduct was built, the road leading across the track to appellees’ house was a public road. The evidence shows that it is a county road. It has never been, and is not now, according to the evidence, a part of the State highway system. The Highway Department has never had any jurisdiction or control over it.

Section 6681 of Kirby’s Digest, which is now section 8483 of Crawford & Moses’ Digest, provides that whenever any railroad company has constructed or shall hereafter construct a railroad across any public road or highway of this State, now established or hereafter to be established, such railroad company or corporation shall be required to so construct the railroad crossing" that the approaches of the railroad bed shall be kept at no greater than a certain elevation, and further provides that at any crossing of any public highway such railroad may be crossed by1 a good and safe bridge, to be built and maintained in good repair by the railroad company or corporation owning or operating such railroad. It was therefore the duty of the railroad company, when it built its road and made the cut, to build a good and safe bridge, and maintain it in good repair. It did this and maintained the bridge until 1930, when it destroyed it.

The law provides for the bridge over the tracks at crossings like this, and no order of the county court or contract with the Highway Department would affect ap-pellees ’ right to recover if they had been damaged by the destruction of the bridge by appellant.

Section 22 of article 2 of the Constitution of Arkansas reads as follows: “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor.”

Our Constitution provides that the owner of property may recover, although his property has not been taken nor appropriated, if it has been damaged.

It was the duty of the appellant under the law to maintain the bridge, and the destruction of it, according to the evidence, necessarily damaged the appellees.

Appellant filed motions for continuances because, while'it relied on the order of the county court, it discovered that there had been an appeal taken to the circuit court, and the circuit court had held that the order of the county court for the destruction of the bridge was void. The appeal was taken without notice to appellant, and it did not discover the order of the circuit court, it alleged, in time to prepare for its trial.

The court did not err in refusing to grant a continuance, because neither the order of the county court nor circuit court could deprive the appellees of the right to damages if their property had been injured, and no order that any court would make would render ineffective the provision of the Constitution above quoted.

It is therefore unnecessary to set out the order of the county and circuit courts, and the evidence with reference thereto. No matter what the order might- have been, if appellees’ property was damaged by the appellant’s destruction of the bridge, they had a right to recover.

Appellees contend that at the time they conveyed the right-of-way to the railroad company it was agreed that the bridge would be built and maintained, and that this was a part of the consideration for the right-of-way.

Mrs. Swafford testified that the bridge had been maintained for many years, she thought ever since 1908, and that the cut was 75 feet deep, and at some places 125 feet deep. It had been so maintained for many years when appellees spent considerable money improving their house, with the understanding and belief that said bridge would continue to be maintained.

On cross-examination appellant’s attorney asked Mrs. Swafford: “You allege in your complaint that when the railroad company purchased the right-of-way, they agreed to build the bridge, is that true?’’ Answer: “Yes.” She also testified that she had always understood it that way. Swafford himself died before the trial, and, of course, they could not have his testimony.

The undisputed facts show that this was a county road, running right up to appellees’ house; that the bridge was built when the cut was made; that it was constantly maintained for many years, and the jury had a right to believe Mrs. Swafford when she testified that the building and maintaining of the bridge was a part of the consideration for the right-of-way.

As a general rule, parol evidence is inadmissible for the purpose of contradicting or showing that the true consideration is other and different from that expressed in the written instrument. To this rule, however, there are exceptions. We recently quoted with approval, as stating the rule, the following: “It seems, according to the American cases, that the only effect of a consideration clause in a deed is to estop the grantor from alleging that the deed was executed without consideration, and that for every other purpose, it is open to explanation, and may be varied by parol proof.” Whitlock v. Barham and Duncan, 172 Ark. 198, 288 S. W. 4; Texas Co. v. Snow, 172 Ark. 128, 291 S. W. 826; Rowland v. Ward, 178 Ark. 851, 12 S. W. (2d) 785; Jackson County Gin Co. v. Mc Quistion, 177 Ark. 60, 5 S. W. (2d) 729; Vinson v. Wooten, 163 Ark. 170, 259 S. W. 366; Newell Contracting Co. v. Elkins, 161 Ark. 625, 257 S. W. 54.

But, even if there were no evidence of a consideration other than that expressed in the deed, the fact that the law, at the time, required them to build the bridge; that it was built and maintained for many years, and that it is still the duty under the law to maintain a bridge on a public road, would make it liable for the destruction of' the bridge if such destruction damaged the property of the appellees.

In the view we take of the matter, it is wholly immaterial whether the railroad company had notice of appeal to the circuit court, and it is also true that appellees’ rights could not be affected by any order of the court or any order or contract with the Highway Department.

Finding no error, the judgment is affirmed.


author: McHaney, J.

text:
    Home Indemnity Company of New York v. Bobo.
    4-2756
    Opinion delivered November 28, 1932.

      Buzbee, Pugh •& Harrison, for appellant.

      Coleman & Gantt, for appellee.
   McHaney, J.

Appellee secured a judgment in the Jefferson Circuit Court against C. A. Webkes and wife in the sum of $5,000, for injuries sustained by her in an automobile accident while a guest in their car. After execution was returned nulla bona, suit was brought against the Southern Surety Company, because of "a policy of liability insurance issued by it to the Webkes, and against appellant, the Home Indemnity Company of New York, hereinafter referred to as appellant (the other appellants being garnishees holding money belonging to it), as surety on the bond of the Southern Surety Company to enable it to do business in this State. The complaint in this action, after alleging the judgment against the Webkes, the issuance of execution thereon, its return unsatisfied, and that appellee was entitled to judgment against the Southern Surety Company in said sum, further alleged as to appellant the following: “That, as a prerequisite to its right to do business in the State of Arkansas, the defendant, Southern Surety Company of New York, gave a bond to the State of Arkansas in the sum of $50,000, conditioned for the prompt payment of all claims and obligations arising or accruing in this State to any person during the term of said bond, by virtue of any policy or contract issued by said principal, Southern Surety Company of New York, such as the claim or obligation now sued on, which bond was in full force and effect on and at all times after the 29th day of December, 1930, the time of plaintiff’s injuries, and was signed by the defendant, the Home Indemnity Company of New York, as surety for the said Southern Surety Company of New York. A certified copy of said bond is attached to this complaint, and made a part thereof. ’ ’

The bond executed by appellant and exhibited follows : ‘ ‘ Know all men by these presents: That we, Southern Surety Company of New York, as principal, and the Home Indemnity Company, a corporation organized under the laws of the State of New York, as surety, are held and firmly bound unto the State of Arkansas in the sum of fifty thousand and 00/100 ($50,000) dollars, lawful money of the United States, for the payment of which well and truly to be made, we hereby bind ourselves, our successors and assigns, jointly, severally and firmly by these presents.

“The conditions of the above obligation are such that:

“Whereas: The said principal has filed its charter and statement and in other respects conformed to the requirements of the statutes for the transaction of a guaranty and surety insurance business in Arkansas; and,

“Whereas: The said company proposes to enter this State (or continue in this State) for the purpose of transacting a guaranty and surety insurance business.

“Now, therefore, if the said principal shall promptly pay, when due, all claims and obligations arising or accruing in this State by virtue of any bond or contract made by said principal; and all amounts due the State of Arkansas, by virtue of any statute, and in all respects comply with the laws of the said State, then this obligation shall become void, otherwise to remain in full force •and effect.

“Witness our hands and seals this 17th day of December, 1930.”

The prayer was for judgment and interest. Neither the Southern Surety Company nor appellant answered, although duly served, and judgment was taken by default against them after an agreement to settle had proved abortive.

This is an appeal from a default judgment, and the only question for our decision is, does appellee’s complaint state a cause of action in her favor against appellant? As said by this court in Thompson v. Hickman, 164 Ark. 472, 262 S. W. 20: “The rendition of a judgment by default upon a complaint which fails to state facts sufficient to constitute a cause of action is an error for which the judgment should be reversed on appeal.” See also Wilson v. Overturff, 157 Ark. 389, 248 S. W. 898. It is conceded that the complaint without the exhibit states a cause of action, but it is insisted that the exhibit is a part of the complaint, and, when so considered, it contradicts the allegation above quoted and shows that there is no liability as to appellant on this bond, when read in connection with act 493, Acts 1921, paragraphs 5 and 7 of § 1 and § 6, for the reason that it covers only the guaranty and surety lines written by the principal and not its liability lines of insurance, for which another bond or certificate of deposit was given. We do not copy these provisions of the statute, for, in the view we take of the matter, they become unimportant.

By § 138 of the Civil Code it was provided that, “If the action * * * is founded on a note, bond, * * * the original, or a copy thereof, must be filed as a part of the pleading.” Under this statute this court several times held that, if the instrument sued on was the basis of the action, it should be looked to in determining the sufficiency of the complaint. See Sorrels v. McHenry, 38 Ark. 134; Euper v. State, 85 Ark. 223, 107 S. W. 179; Security Ins. Co. v. Jaggers, 120 Ark. 472, 179 S. W. 1008. But the above section was amended by the act of March 27, 1871, p. 231, and is carried verbatim, into Crawford & Moses’ Digest as § 1222 as follows: “In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims.” By inadvertence, the amendment of 1871 was omitted from both Sandel & Hill’s Digest (§ 5752) and Kirby’s Digest (% 6128), and the opinion in Security Ins. Co. v. Jaggers, supra, erroneously cites § 6128 of Kirby’s Digest as sustaining this statement: “The action is founded on the bond of appellees, which was filed as exhibit to the complaint and may be considered upon demurrer to the pleadings.”

The cases holding that exhibits to the complaint in suits at law may be considered on demurrer or on appeals after'default are now without statutory foundation, and we think the recent case of American Ins. Co. of Newark, N. J., v. Dutton, 183 Ark. 495, 37 S. W. (2d) 875, definitely settles the question. We there said: “Counsel for appellant, in its motion for a rehearing, claims that the court did not take into consideration a clause of the insurance policy which is set out in the brief on the motion on rehearing. We do not deem it necessary to set out this provision of the policy, for, under our settled rule of practice, we cannot consider it. It is true that the policy was made an exhibit to the complaint, hut this court has uniformly held that in actions at law exhibits to the complaint can only be used as explanatory of the allegations of the complaint and not for the purpose of contradicting them.”

We are therefore of the opinion that the complaint states a cause of action sufficient to support a judgment on appeal after default.

Affirmed.