author: . McHaney, J.

text:
    Camden Fire Insurance Association of Camden, New Jersey, v. Meloy.
    Opinion delivered May 16, 1927.
    1. Insurance — record of sales of rice. — Under a fire policy requiring insured to keep an inventory of the kind and quantity of rice on hand and a record of transactions if same has been graded, priced, bought, or sold by the assured, held that a daily record of the rice put into assured’s granary was sufficient where none of the rice had been graded, priced, bought, sold or removed from the granary before the fire.
    2. Insurance — necessity of inventory. — A fire policy requiring an inventory showing the quantity and kind of rice insured, and the record of the transactions, if graded, bought or sold, has no application where the assured is-merely storing his rice in his own granary and neither buying nor selling same.
    3. Insurance — iron-safe clause — waiver. — In a suit upon a fire policy, demand and acceptance of a premium after a fire and after the adjuster had knowledge of an alleged breach of a provision in the policy requiring assured to keep an inventory, held a waiver of such defense.
    4. Appeal and error — refusal to adjourn — harmless error.— Where one of defendant’s attorneys was called away by his father’s illness, and defendant was ably represented by another attorney, overruling a motion to adjourn the case from 6:30 p. m. until the following morning, and ordering an adjournment at 7:45 p.m., was within the discretion of the trial court, and such action will not be disturbed on appeal, without a showing of abuse or prejudice.
    5. Appeal and error — question not raised below. — Where the record failed to show that insurer objected or excepted to the judgment of the trial court fixing the amount of the attorney’s fee on recovery by insured, the Supreme Court cannot reduce the amount allowed.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      Mike Danaher and Palmer Danaher and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      John W. Moncrief, for appellee.
   . McHaney, J.

Appellees brought two separate suits in the Arkansas Circuit Court, Southern District, one against , appellant, Camden Fire Insurance Association of Camden, New Jersey, and the other against the Mississippi Fire Insurance Company of Jackson, Mississippi, to recover on separate policies issued by appellants, insuring the appellees against loss by fire in the sum of $6,493.50 each, on rough rice while located in the granary of the appellee, Meloy, in the Southern District of Arkansas County. The cases were consolidated and tried together, resulting in a judgment for the amount sued for against each company, in the sum of $6,437.50, or a total of $12,875, with interest from March 10, 1925, at 6 per cent, and the statutory penalty, and was based upon proof satisfactory to the jury that there were 10,300 bushels of rice in the granary, of the value of $1.25 ppr bushel. After the verdict and judgment were rendered, the question of the attorney’s fees to be fixed by the court was postponed to an adjourned day, at which time the testimony of several witnesses on behalf of the attorney for the plaintiffs was taken, and the court, after hearing such testimony, fixed the attorney’s fees at $2,000, for which judgment was accordingly rendered. There was no objection or exception, on the part of counsel for appellants to the action of the court in so doing. Thereafter,' in due time, a motion for a new trial in each case was filed, overruled, and an appeal was prayed and granted to this court, where they have been submitted and briefed together on one transcript.

Appellants first urge as a ground for reversal that appellees were not entitled to recover because they failed to comply with what is known in one of the policies as the “iron-safe” clause, and in the other as the “record warranty” clause. These clauses are almost identical, and, in substance, provide that the assured shall, at the beginning of each season, make a complete itemized inventory, showing the quantity and kind of rice on hand, “and if same has been graded, priced, bought or sold, will preserve an exact record of such grade of rice;” that he shall keep a set of books and a record showing the quantity and kind of rice on the premises, and removed from the premises, and ‘‘if any of the rice * * * is graded, bought or sold by the assured, shall produce accurate records of the grades, quantities and prices involved in such transaction; that the assured shall keep such inventory, books, records, accounts, including record of grades and prices * * * securely locked in a fire-proof safe at night, and at all times when such books or records are not actually in use, and/or failing in this, shall keep same in some place not exposed, to fire which would destroy aforesaid premises.” And further provides, if this is not done, the policy shall be null and void. '' ¡ I; ■ ■

B.. A. Scott, a witness for appellees, testified that he kept a daily record of the number of bushels of rice threshed and put in the granary, but appellants insist that this is not sufficient, because he did not claim to have kept any record of the grades. A sufficient answer to this is that the policies do not require that a record of the grades be kept unless the “same has been graded, priced, bought or sold.” The rice in the granary had not been graded, neither had any riee been bought and none sold, except 650 bushels delivered to the Rice Growers’ Association prior to the 18th day of February, the date of the issuance of these policies. The same amount of rice in the granary at the time of the issuance of the policies was still there at the date of the fire. There had been no change in any respect, and a sufficient record of the amount of rice put in the granary was kept by the appel-lees. It is manifest from a casual reading of these clauses that they can have no application in the case of' a farmer or other, person who was not buying or selling rice as a dealer or warehouseman whose stock is subject to change from day to day by the increase of the amount bought, or the decrease thereof by the amount sold. In the case of Queen of Arkansas Insurance Co. v. Dillard, 96 Ark. 378, 131 S. W. 946, where the property insured in the policy was “$400 on office furniture, fixtures and supplies, including desks, tables, chairs, stands, type, type cases, presses and electrical fixtures as are necessary to bis .use, and such other furniture and fixtures,” this court, in disposing of the contention of the insurance company that the insured violated the “iron-safe” clause by keeping no books and making no attempt to comply therewith, said:

“The requirements of the iron-safe clause have reference to such articles of merchandise as constitute the stock in trade of the insured, and has no application to property in a policy like that under consideration.”

Again the court said:

“The object in requiring a set of books to be kept showing a record of the business transacted and of the changes taking place from day to day in the stock of goods of the insured, is that the insurer may have the means of ascertaining the amount and value of the goods destroyed. Southern Ins. Co. v. Parker, 61 Ark. 207 [32 S. W. 507]. In cases like this, where no stock of goods or other wares are kept on hand, it is apparent that the requirement of the iron-s.afe clause can serve no useful purpose, and the maxim that ‘the law does not compel one to do vain or useless things,’ applies.”

In the case of Miller v. Delaware Ins. Co., 14 Okla. 81, 75 p. 1171, 65 L. R. A. 173, 2 Ann. Cas. 17, the court ■used this language:

“This inventory and iron-safe provision is intended to have reference only to such articles of merchandise as constitute stock in trade, and the purpose of the clause is to provide evidence from which to determine what the actual loss sustained is, in case of fire. * * * General merchandise, however, is a character of property which is at all times changing. . The amount of stock in trade on hand one day is but little, if any, evidence of what may be on hand at another timé. Upon the one hand, the stock is being depleted'by sales made, while, upon the other, it is being replenished by purchases. All business men know that the amount of stock kept by any merchant fluctuates very materially. *• * *”

Since Meloy was not a dealer in rice, but was only storing bis own rice in bis own granary, and no change taking place in the amount thereof from day to day, it would be a vain and useless thing to say that he must comply with these so-called “iron-safe” and “record-warranty” clauses by keeping a set of books and doing the other things required therein.

Appellants’ nest contention is that the record, such as was kept, showing the amount of rice in the granary, was not exhibited to their adjuster, and that the failure to do this canceled the policies. Powell, the adjuster, testified that he asked Meloy to show him the record, and that Meloy had nothing to show him, but Meloy testified on this point as follows: “Q. Did you have that book at the time? A. It may have been at the house. I didn’t show it to Mr. Powell. It was. at the house, and Mr. Powell did not want to see it. I showed it to the State Fire Marshal; he copied it;” and further testified that Powell said the only question was the amount of the rice. The record of the amount of rice threshed and put in the granary was introduced in testimony, and showed the exact amount of rice in the granary at the time the-policies were issued and at the time of the fire, and the jury has decided this question against appellants’ contention.

Furthermore, the demand and acceptance of the premium after the fire, and after the adjuster had made his •investigation, and with full knowledge of the alleged breach of the “record-warranty” or “iron-safe” clause, constituted a waiver of these-defenses. After Powell had been to see Meloy about adjusting the loss in the latter part of April, and after the appellees had furnished original and supplemental proofs of loss, and 54 days after the fire, appellants demanded and accepted, on the 8th day of May, the premiums on these policies. They did not return the same or offer to return same up to and including the time, of the trial. Under these circumstances, appellants will be held to have waived these defenses.

In Scottish Union & National Ins. Co. v. Wylie, 110 Miss. 681, 70 So. Rep. 835, the court said:

“By the acceptance of the premium by the agent of the insurance company after the fire, when he had knowledge both of the mortgage on said property and of the other additional insurance upon the same, he waived all irregularities which might or could have existed, either in the issuance or during the continuation of said policy.” Insurance Co. v. Smith, 79 Miss. 144, 30 So. 362; Insurance Co. v. Dobbins, 81 Miss. 623, 33 So. 504; Farmers’ Alliance Ins. Co. v. Ferguson, 78 Kansas 791, 98 Pac. 231; Manning v. Connecticut Fire Ins. Co., 176 Mo. App, 678, 159 S. W. 750.

It is next urged that the court erred in refusing to postpone the trial on appellant’s motion so to do from 6:30 in the afternoon until the following morning, instead of adjourning to 7:45 p. m. This is based on the ground that the father of one of the attorneys for appellant was seriously ill and was calling for his son to be with him during the night, and the attorney wished to be with his father during the night. A physician, who was the brother of the attorney, testified to the effect that the presence of his brother at his father’s bedside was unnecessary, and the record further shows that appellants were ably represented by another attorney, who proceeded with the trial of the case. The court overruled the motion, and took an adjournment to 7:45 p. m. Appellants do not undertake to show that they were prejudiced in any way by the absence of the other attorney. This was a matter wholly within the discretion of the trial court, and its action will not be disturbed on appeal, unless there is a positive showing of abuse of such discretion, or prejudice against appellants’ right.

It is finally insisted that the action of the court in fixing the attorney’s fee in each case at $1,000 is erroneous and excessive, in view of the decisions of this court in Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S. W. 387; Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720, and in other oases where the fees were reduced to 10 per cent, of the' amount of the judgment. We would follow these cases in this case if the record reflected that counsel for appellants objected and excepted to such allowance as being excessive. But the record in this case does not show that appellants either objected or excepted to the ruling and judgment of the court, and we cannot therefore'reduce it.

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


source: Caselaw Access Project

author: McIIaney, J.

license: Public Domain

text:
    Marion Machine Foundry & Supply Company v. Colcord.
    Opinion delivered May 16, 1927.
    1. Mines and minerals — materialman’s lien. — One furnishing steel to a contractor building an oil derrick cannot sue the owner more than 90 days after furnishing the last material, where neither he nor the contractor filed an affidavit for the lien.
    2. Contracts — mutuality of'contract. — One furnishing steel to a contractor building an oil derrick cannot sue the owner for its value where he had no contractual relation with the owner.
    3. Mines and minerals — materialman’s lien — parties. — The contractor is a necessary party to a suit by a materialman to establish a lien against an oil lease, which cannot be declared until judgment has been had against the contractor.
    4. Mines and minerals — enforcement of a materialman’s lien. —A contractor building a- steel oil derrick is entitled to a lien against the owner’s leasehold for payment without giving 10 days’ notice and filing an affidavit for lien with the circuit clerk, where suit was brought within 90 days, as provided toy Acts 1923, p. 499.
    5. Appeal and error — harmless error. — In an action toy the builder of an oil derrick, the owner of the oil lease has no ground of complaint 'because the adverse decree did not fix the lien in'favor of the plaintiff.
    6. Mechanic’s lien — liability of contractor. — One furnishing steel to a contractor for building a derrick, if dissatisfied with the recovery in an action against the owner in which it joined as plaintiff with the contractor, may still sue on its account against the contractor.

      Appeal from Ouachita Chancery Court, Second Division i George M. LeCroy, Chancellor;
    affirmed.

      Goodwin & Goodwin, for appellant.

      Marsh, McKay & Marlin, for appellee.
   McIIaney, J.

Appellee, being the owner of a certain oil lease in Ouachita County, and being desirous of having same drilled for oil, entered into a contract with the Alliance Drilling Company for this purpose, in which the erection of a wooden derrick was called for. He decided that lie preferred to have a steel derrick, and the drilling company agreed that, if he would erect the steel derrick and release it from the erection of the wooden derrick, it would abate $650 from the contract price. Appellee then entered into contract with D. D. Nowlin, a derrick contractor, to erect on his lease a steel derrick, referred to as a No. 881 Marion tubular rotary derrick of 2x2s with four sets of relegs of 4x4-inch drill stem, of first-class material and construction, for the price of $1,900. The contract was dated July 10, , 1925. Appellant, on July 15, 1925, sold to Nowlin the No. 881 Marion tubular rotary derrick for $836, and on'July 20 sold and delivered to him four sets of relegs for $619.20, making a total of $1,455.20, on which Nowlin made a payment of $309.60, leaving a balance due $1,145.60. The Stout Lumber Company, on July 14, sold and delivered to Nowlin certain supplies amounting to $288.10. Nowlin proceeded to the erection of said derrick, and completed same on July 21. The drilling company began to drill a well on said lease, and, after drilling approximately 2,550 feet during a period of about 30 days, the drill-stem got stuck in the hole, and, in an effort to extricate same, on account of the great strain placed on same in pulling the drill-stem, as claimed by appellant, the steel derrick collapsed.. Appellee claims that the collapse and destruction of the derrick were caused by defective material used therein. After the collapse of the steel derrick the appellee caused a wooden derrick to be erected, the material in the steel derrick being so twisted,- bent and distorted that it was useless to him in the further drilling of his well. Thereafter, on October 19, Nowlin, not having been paid by Colcord for the construction of the derrick, brought this suit, in which the material furnishers mentioned joined, for the amount of the contract price, and to have a lien declared and enforced on the lease, etc., as provided by act 615 of the Acts of 1923, and that the materialmen be protected for the amount of their claims. The court, after hearing the evidence, entered a decree in favor of appellant for $495.50, being the difference between $1,145.60, the balance due it by Nowlin, and $650, the cost of the new wooden derrick, and in favor of Stout Lumber Company on its bill of $228.78, and in favor of Nowlin for $525.62. From this decree comes this appeal and a cross-appeal.

Neither the appellant nor the contractor, Nowlin, filed an affidavit for a lien. Appellant furnished its last material on July 20. It brought suit or joined with Nowlin in bringing suit on October 21, more than 90 days thereafter, and therefore was barred on this account. Moreover, appellee was not indebted to appellant. It had no contractual relation with him and could not maintain a separate action against him. The contractor, Nowlin, was its debtor, the material being sold to him, and he was a necessary party defendant, against whom a judgment must have been had before a lien could be declared and enforced against appellee’s leasehold. Simpson v. J. W. Black Lbr. Co., 114 Ark. 464, 172 S. W. 883; Cruce v. Mitchell, 122 Ark. 141, 182 S. W. 530; Hess v. A. L. Ferguson Lbr. Co., 155 Ark. 244, 244 S. W. 5. In these cases it was held that, where goods are sold to the contractor instead of to the owner, the contractor is a necessary party defendant.

However, Nowlin, the contractor, brought suit against appellee in apt time, and he, being the original contractor with the owner, was not required to give the 10 days’ notice and file an affidavit for a lien with the circuit clerk, the bringing of suit within the 90 days being sufficient to entitle him to a lien. Leifer Mfg. Co. v. Gross, 93 Ark. 277, 124 S. W. 1039; Hess v. A. L. Ferguson Lbr. Co., supra. Nowlin sued for the full amount of his contract price of $1,900, stating that he was indebted to appellant in the sum of $1,145.60 and to Stout Lumber Company $228.78, for which he asked that judgment and liens be given, and for himself he asked judgment and a lien for .$525.62, and the court did this, except that appellant’s claim was reduced by $650, the cost of the new derrick, evidently on account of defective material furnished by it for the steel derrick. The effect of this was to decree in Nowlin’s favor the sum of $1,250 and to divide this amount among the plaintiffs according to their respective interests. While this is not the best practice, appellee has no cause to complain on his cross-appeal, for the court should have entered a decree for this amount in favor of Nowlin and fixed a lien in his favor therefor. The evidence as to the defective material in the steel derrick is conflicting, and we cannot say that the court’s finding in this regard is clearly against the preponderance of the evidence. Nowlin appears to be satisfied with the decree, as he has taken no appeal therefrom, and appellant cannot be heard to complain, as we have already shown that he was not entitled to maintain a separate direct action against appellee, for the reasons heretofore stated. Appellant may yet pursue Nowlin on its account against him if it is not satisfied with the recovery herein.

We find no reversible error, and the decree is affirmed.


author: McIíaNEy, J.

text:
    McFarlane v. Giller.
    Opinion delivered May 16, 1927.
    1. Licenses — liability of .lessor for severance tax. — Under the Severance Tax Act of 1923, p. 73, § 8, providing that a tax “shall be required of the severer or producer actually engaged in the operation of severing natural products, whether as owner, lessee, concessionaire or contractor,” the lessor of oil and gas lands held not liable for such tax, though part of the consideration was to be paid out of seven-sixteenths of the first oil and gas produced, saved and marketed from the leased premises.
    2. Mines and minerals — right of lessee to deduct severance tax. —Where an oil and gas lease required the lessee to pay a deferred cash consideration out of the first production, the lessee could not deduct from the payment to the lessor the severance tax paid on the first production under the provisions of the Severance Tax Act (Acts 1923, p. 73), § 8.
    'Appeal from Union Chancery Court, Second Division ; George M. LeCroy, Chancellor;
    affirmed.

      Mahony, Yocum & 8aye and Powell, Smead & Knox, for appellant. . '

      Patterson & Rector, for appellee.
   McIíaNEy, J.

Counsel for appellants have stated the case correctly as follows: “Anna W. Giller, the appellee, in the year 1923 executed an oil and gas lease to the appellants,' J. H. McFarlane and Ed Hollyfield, thereby leasing and letting unto the said McFarlane and Hollyfield 80 acres of land in Union County, Arkansas, for a consideration of $25,000 in cash and $100,000 payable out of 7/16 of the first oil and gas produced, saved and marketed from the leased premises. Hollyfield and McFarlane entered upon the leased premises and produced therefrom a large quantity of oil and gas. These products were marketed to various pipe-line companies and refineries. As provided by the severance tax law, the pipe-line companies and refineries received such oil and gas, deducted 2y2 per cent, of the purchase price thereof and paid such amount to the State of Arkansas as a severance tax.

“The various pipe-line companies and refineries receiving said oil paid the sum of $97,500 of the purchase moijey paid for the first oil or gas produced, saved and marketed from the leased premises, $2,500 (or 2y2 per cent.) being remitted to the State of Arkansas as severance tax. After these payments were made, the appellants refused to- make further payments to appellee. Appellee has instituted this suit, and contends that the sum of $100,000 payable from oil is not such an interest in oil as is taxable under the law.

“The sole question involved in this appeal is whether deferred money payments to be made from the production of oil and gas is such an interest as would be chargeable with the tax.”

Demurrers to the separate answers filed were sustained, and, appellants declining-to plead further, the court entered judgment against them for $2,500 and interest from May 9, 1925, at 6 per cent., and decreed a lien in favor of appellee on 7/16 of the oil and gas and on 7/16 interest in thq lease, and ordered same sold to satisfy said debt, from which comes this appeal.

The contention of appellants is that, since the consideration for the oil and gas lease executed by .appel-lee to appellants, McFarlane and Hollyfield, in addition to' the $25,000 cash paid, is the agreement “to pay the lessor (appellee) the further and additional sum of $100,000, payable out of 7/16 of the first oil and gas produced, saved and marketed from said leased premises, as arid when said oil and gas and either of said products are marketed by lessees, payments for said 7/16 of such-oil and gas to be made by the pipe-line company or other purchaser thereof direct to the lessor for credit on said purchase price until fully paid, and for which payments the lessor shall have and does hereby reserve a lien on said undivided 7/16 of all the oil and gas produced from said lands, until said purchase price shall have been fully paid,” appellee held such an interest in the oil produced- therefrom as would make her liable for the severance tax. This contention is based on § 8 of act 318 of tlie Acts of 3913, known as the Severance Tax Act, which is as follows:

“Tax due from severer. Except 'as otherwise in this section provided, the making of said reports and the payment of said privilege taxes shall be required of the severer or producer actually engaged in the operation of severing natural products, whether as owner, lessee, concessionaire or contractor.
“The reporting taxpayer shall collect or withhold out of the proceeds of the sale of the products severed the proportionate parts of the total tax due by the respective owners of such natural resources at the time of severance.
“And in the case of oil and gas, such production as shall be sold or delivered to any pipe-line company and transported by it through pipes connected with the oil or gas well of the owner, shall, notwithstanding such sale or delivery, be liable for the tax herein levied.
“Every producer actually operating any oil or gas well, quarry or other property from . which natural resources are severed, under contract or agreement requiring pa3unent direct to the owners of any royalty, excess royalty or working interest, either in mone}7- or in kind, is hereby authorized, empowered and required to deduct from any such royalty or other interest the amount of the severance tax herein levied before making such payment.”

This section of said act has been construed by this •court in Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S. W. 741, as follows:

“Section 8 provides that the payment of said privilege taxes shall be required of the severer or producer actually engaged in the operation of severing natural products, whether as owner, lessee, concessionaire or contractor.
“It is apparent then that the owner of lands who cuts down trees for the purpose of building fences or repairing and constructing- houses and other improvements on the land from the timber thus severed from the soil, is exempted from paying the tax..It is equally evident that, when the timber severed from the soil is sold, it falls within the terms of the act, and the tax must be paid by some one. To illustrate: If the owner of timber lands desired to sever it for the purpose of clearing the land and putting it in cultivation, and hired other persons to sever the timber for him, he would be required to pay the severance tax. If the owner should lease his land to another person for a designated number of years in order to have his lessee clear the land and put it in cultivation, and if the consideration for the lease, in whole or in part, was that the lessee should have the timber so removed from the land, the severance tax would have to be paid by such lessee. It will be noted that the language of the act is specific on this subject, and provides that the severer, or'producer, as he is called, shall pay the tax. The act is very broad and comprehensive, and is levied upon all persons engaged in severing the timber from the soil for sale or commercial purposes, regardless of the purpose for which it is done.”

By way of comparison and further illustration, the court further said:

"Where a landowner makes a contract with another person to cut and remove the timber from his land for sale or commercial purposes, the owner must pay the severance tax; for such contractor and his servants who actually sever the timber act for the owner in the premises, and their act of severing the timber is the act of the owner.”

It will be noted, from the language of the lease above quoted, that appellee sold the whole lease, and not a part of it; that the $100,000 was to be paid to her in money as the oil and gas were produced, saved and marketed; that this was a part of the purchase price in money for the lease; that she did not retain in the lease any title to the leasehold, or to the oil and gas produced therefrom, but only a lien on 7/16 thereof until the purchase price is paid in full, except the usual 1/8 royalty interest, about which there is no controversy. Manifestly she is not required to pay the severance tax, as contended by appellant, under the plain and unambiguous language of the lease, or the law, and under the construction placed on the. act by the decision of this court heretofore cited.

The decree of the chancery court is correct, and it is accordingly affirmed.


author: Hart, C. J.

text:
    El Dorado v. Jacobs.
    Opinion delivered May 23, 1927.
    1. . Municipal corporations — authority to issue bonds. — Constitutional Amendment No. 15, giving to cities of the first and second class power to issue bonds for certain purposes with the consent of a majority .of qualified electors voting on the question at election, held sufficiently definite to be enforceable.
    2. Municipal corporations- — validity of bond election. — The fact that the usual number of voters did not vote at a bond election authorized by Constitutional Amendment No. 15, did not avoid the election, in the absence of a showing of fraud; the amendment specifically providing for determination of the result by a majority of those voting.
    3. Municipal corporations — validity of bond election. — An election to determine whether • city bonds should be issued, held in substantial compliance with the requirements of Amendment No. 15, and an ordinance enacted in conformity therewith, held not invalidated by irregularities, not affecting the result in the appointment of election officers.
    4. Municipal corporations — absence from election of regular judges. — The fact that judges appointed by the election commissioners did not appear and hold an election with reference to the issuance of city bonds, held not to invalidate an election, in the absence of a showing that the persons holding the election were not elected to fill vacancies in the manner provided by Crawford & Moses’ Dig. § 3729, or that votes were not honestly cast and counted, or that any attempt was made to interfere with voters’ freedom of action.
    5. Municipal corporations — validity of bond election. — A municipal bond election was not invalidated by holding the election in one precinct at an unauthorized place 200 feet from the usual polling place on the same street because the election judges could not have access to the latter place. •
    6. Municipal corporations — validity of bond election. — A municipal bond election was not invalidated because the polls were not open as early as permissible under the statute, where every voter was given an opportunity to vote.
    7. Municipal corporations — validity of bond election. — A municipal bond election was not invalidated because private booths were not erected in polling places as provided by statute, where each voter was given opportunity to retire to a part of the room where he could vote in secrecy, where no electioneering went on at the polling places, and where no attempt was made by persons holding the election to influence voters.
    8. Municipal corporations — appointment of election officers.— Appointment by the election judges of officers to serve them at polling places in the city bond election, on the sheriff’s failure to appoint deputies for such purpose, held a substantial compliance with the statute, especially where no attempt was made to influence voters.
    9. Municipal corporations — requirement as to reading of resolution — waiver. — Adoption of a resolution by a unanimous vote of all members of a city council dispenses with the requirement of Crawford & Moses’ Dig., § 7502, that all bills and ordinances of general and permanent nature be fully and distinctly read on three different days.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.
    J. G. Ragsdale and Powell, Sinead & Knox, for appellant.

      Stewart & Oliver, for appellee.
   Hart, C. J.

J. F. Jacobs, a citizen, taxpayer and owner of real property in the city of El Dorado, brought this suit in equity against said city and the mayor and members of the common council thereof, to enjoin them from issuing or selling bonds or making any contract towards the purchase and erection of a city hall. The chancellor found the issues in favor of the plaintiff, and a decree was entered of record in accordance with the prayer of his complaint. To reverse that decree this appeal has been prosecuted.

The record shows that, at the general election held on October 5, 1926, Amendment No. 15, giving cities of the first and second class the power to issue bonds for certain puruposes upon certain conditions, was adopted. On January 5,1927, pursuant to the provision of an ordinance to that effect, an election was duly held in the city of El Dorado, which is a city of the first class, to determine whether or not bonds should be issued for the purchase of a site and the erection of a city hall. A great majority of the votes cast at said election were in favor of issuing the bonds for the construction of the city hall.

The chancellor held that Amendment No. 15 was illegal and inoperative. No valid reason is assigned by counsel for the court so holding, and none can be perceived by us. It cannot in any sense he said that the amendment is too indefinite to be capable of enforcement. It provides that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election. The purpose of the election in question was for the purchase of a site and the construction of a city hall. Such purpose is expressly provided for in the amendment. It further provides that no bonds issued under the authority of the amendment shall bear a greater rate of interest than six per cent, per annum. The section also provides that such bonds must be sold at public sale after twenty days’ advertisement in some newspaper of a bona fide circulation in the municipality issuing the bonds. Provision is made for the levy and collection of a special tax, not to exceed five mills on the dollar, in addition to the legal rate permitted, for the purpose of paying said bonds and interest thereon. The amendment prevents such municipal corporations from granting financial aid towards the construction of railroads or other private enterprises, and specifically provides that no money raised by the sale of bonds shall ever be used for any other or different purpose than that specified.

Another section provides that the election shall be held at such time as the city council may designate by ordinance, which shall specifically state the purpose for which the bonds are to be issued, the total amount of the issue, the dates of maturity and the date of election, so that it shall not occur earlier than thirty days after the passage of the ordinance. It further provides that said election shall be held and conducted and the votes thereof counted and the result thereof determined under the law and in the manner now or hereafter provided for municipal elections, so far as the same may be applicable, except as’ herein otherwise provided. Provision is made for giving notice of the election by advertisement, and only qualified voters have the right to vote at said election.

An ordinance was passed by the city in conformity with the provisions of the amendment, and the election was held on the 5th day of January, 1927, at4he voting place in each of the four wards of the city of El Dorado. As we have already seen, a great majority of those voting at the election voted for the issuance of bonds for the purchase of a site and the construction of a city hall, and the provisions of the law in regard to holding and conducting said election were substantially complied Avith.

Complaint is made that the usual number of voters did not appear at the polls and vote at said election. No proof Ayas introduced, hoAvever, tending to show that any fraud was perpetrated in conducting the election either in casting the ballots, preparing the returns or determining the results of the election.. The mere fact that the usual number of voters did not appear and vote at the election cannot have the effect to avoid it. The amendment itself specifically provides that the result is to be determined by the majority of those voting on the question at the election and not by the majority of those Avho might have participated in the election.

Complaint is made of several irregularities in bold-ing the election. It is well settled, however, that election returns should not be rejected for any irregularity in the appointment of the officers of election, where it does not appear that the irregularity affected the result of the election. 20 C. J., page 90, and case-note. . In State ex rel v. Taylor, 108 N. C. 196, 12 S. E. 1005, 12 L. R. A. 202, 23 Am. St. Rep. 51, it was held that it is essential to the validity of an election that it shall be held under ¡áome proper authority, and conducted substantially in the manner prescribed by law. In the case at bar the record shows that all the requirements as to notice and other matters required by the amendment and by the ordinance enacted in conformity with the provisions of the amendment were substantially complied with. The election was held on the day advertised and in each of the four wards of the city of El Dorado.

Complaint is made that none of the officers appointed by the election commissioners as judges of the election appeared $nd held the election. So far as the record discloses, the regular election officers did not appear, and no election could have been held unless substitute judges took their places. Section 3729 of Crawford & Moses’ Digest provides the manner of supplying the vacancies where the regular election judges shall be absent at the time fixed for the opening of the polls. Here, no attempt is made to show that the persons holding the election were not elected to fill the vacancies caused by the absence of the regular judges, and no attempt is made to show that the votes were not honestly cast and counted or that any attempt was made to interfere with the freedom of action on the part of the voters.

Again, it is insisted that in one of the precincts the election was held at an unauthorized place. The election in that precinct was held at a polling place about two hundred feet distant from the building in which the elections for that precinct or ward were usually held. The changed polling place was on the same street of the city, and was rendered, necessary because the election judges could not have access to the regular polling place.

■ It is next contended that the election was invalid because the polls were not open as early as they might have been under statute. The delay in opening the polls may have been caused by the absence of the regular election judges and the necessity.of filling the vacancies caused by their absence. In any event, no attempt was made to show that any person was prevented from voting on this account. Each of the polls was in a house on one of the streets of the city, and every voter was given an opportunity to vote at the election. .

It is next insisted that private booths were not erected in the polling places as provided by the statute. Only one issue was to be voted on at the election, ánd the undisputed evidence shows that each voter was given an opportunity to retire to a part of the room where he could vote in secrecy and where no one could see how he marked his ballot. There was no electioneering going on at the polling places, and no attempt was made by those holding the election-to influence the voters in any way.

It is next insisted that the sheriff did not appoint deputies to attend and serve the election judges at the polling places. This defect was supplied by the election .judges appointing an officer for that purpose, and this constituted a substantial compliance with the statute. This is especially true when we consider that no attempt was made by any one to influence the voters.

In short, there is' no evidence in the record of any obstruction or hindrance caused by those holding the election which in anywise interfered with the expression of the voters in casting their votes according to their own free will, and there is nothing, as a consequence, which prevented a fair election. .

The facts with regard to the passage of the ordinance bring the action of the council within the rule announced in Young v. Gurdon, 169 Ark. 399, 275 S. W. 890. In that c'ase it was held that, under Crawford & Moses’ Digest, requiring that “all bills and ordinances of a general and permanent nature shall be fully and distinctly read on three different days unless two-thirds of the members composing the council shall dispense with the rule,” the adoption of a resolution by unanimous vote of all the members of the council dispenses with such requirement.

Other matters are urged upon us for a reversal of the-decree, but we do not deem them of sufficient importance to require a separate discussion and review. Suffice it to say that we have carefully considered the briefs of counsel and are of the opinion, for the reasons above given, that the decree of the chancellor was erroneous. It will therefore be reversed, and the cause will be remanded with directions to the chancery court to dismiss th'e complaint of the plaintiff for want of equity. It is so ordered.


author: Hart, C. J.,

text:
    El Dorado Laundry Company v. Ford.
    Opinion delivered May 23, 1927.
    1. Master and servant — use op trade secrets. — Where the employment of a servant is of a confidential nature, there is an implied contract on the servant’s part not to use trade secrets learned in the course of his employment to the master’s detriment.
    2. Contracts — restraint op employment. — A contract in restraint of employment without some reasonable limitation is contrary to public policy and unenforceable.
    3. Injunction — trade secret — names op laundry patrons. — The names of. customers of a laundry learned by a former employee while working: on a laundry route, held not to constitute a trade secret, such as would be protected by injunction at the instance of a former employer to prevent the driver from soliciting patronage of such persons for a rival laundry.
    Appeal from Union Chancery Court, Second Division; George M. LeCro'y, Chancellor;
    affirmed.

      STATEMENT OE EAOTS.
    \ The El Dorado Laundry Company brought this suit in equity against Garland Ford to enjoin him from soliciting its customers, whom he had served while in its employment, to give their business to a rival concern.
    Garland Ford was in the employment of the El Dorado Laundry Company for five months, and had access to a printed list of the customers of the plaintiff. He was instructed to familiarize himself with the list, which was on file in the plaintiff’s, office. The defendant quitted the service of the plaintiff and obtained similar employment from the Crow Laundry, which'also conducts ■its business in the city of El Dorado. While the defendant worked for the plaintiff he used one of its trucks, which showed for'whom he was working’. After he went to work for the Crow Laundry he solicited the plaintiff’s customers, and drove a Chevrolet truck over- the same .route. It is admitted that the defendant had a right to quit working for the plaintiff and enter into the employment of the Crow Laundry. It is also admitted that, while in the employ of the latter company, he went over the route of the plaintiff and solicited business from persons who had been customers of the El Dorado Laundry Company while he was in its employ. According to the testimony of the defendant, he learned the names of the plaintiff’s customers while working for it and did not use the list of customers after he went to work for the Crow, Laundry. He told the customers that he had quit working for the plaintiff and was working for the Crow Laundry. His former customers gave him their laundry with the understanding that it was being carried to the Crow Laundry.
    The chancellor found the issues in favor of the defendant, and the complaint was dismissed for want of equity; The case is here on appeal.

      Goodtoin & Goodtuin, for appellant.

      L. II. South-mayd, for-appellee.
   Hart, C. J.,

(after stating the facts). The proof shows that this is not a cáse where the defendant was hired upon the express condition that he would agree, for a limited length of time, not to solicit trade from such customers of the plaintiff as he might have served while in its employ. This is conceded by counsel for the plaintiff,, hut they insist that the facts bring the case within the settled rule that, where the employment of a servant is of a confidential nature, there is an implied contract on the part of the servant not to use, to the detriment of his master, any, trade secret which he might have learned in the course of his employment. See case-note to 17 Ann. Cas. 144. • 1

We do not think the facts bring the case within this well-settled rule or within the principles announced in New Method Laundry Co. v. MacCann, 174 Cal. 26, 161 Pac. 990, Ann. Cas. 1918C, page 1022; to the .effect that, a list of customers along a laundry-route constitutes a trade secret which is the absolute property of the laundry and is the subject of injunctive relief on the ground of irreparable injury. It is true that the record shows that the defendant had access to the printed list of the customers of the plaintiff, but the defendant testified that he became familiar with the names of the customers along the route while serving them during the five months he worked for the plaintiff. His testimony on this point is uncontradicted, and is reasonable. Any person of ordinary intelligence would become familiar with the customers whom he might serve along a laundry route during a period of five months. It is not claimed that the defendant did not have a right to quit the employment of the plaintiff and enter that of the Crow Laundry. Freedom of employment must not be unreasonably abridged, and a contract in restraint of employment, without some reasonable limitation, is like a similar contract in restraint of trade, contrary to public-policy, and unenforceable.

The facts of this case bring it within the rule laid down in Fulton-Grand Laundry Co. v. Johnson, 140 Md. 359, 117 Atl. 753, 23 A. L. R. 420. It was there held that the names of the patrons of a laundry on a particular route did not constitute a trade secret which will he protected by injunction so as to prevent a driver employed on such route from utilizing it and soliciting the patronage of such persons when he leaves the service of his employer and enters business for himself. In a note at the end of the case it is said that, in the majority of the cases which have passed on the question, it is held that, in the absencé of an express contract, on taking a new employment in a competing business an employee may solicit for his new employer the business of his former customers, and will not be enjoined from so doing at the instance of his former employer. We think that, under the principle announced in these cases and under the facts in the present case, the chancellor properly held that the plaintiff was not entitled to the injunctive relief asked, and that his decree dismissing the complaint of the plaintiff for want of equity should be affirmed. It is so ordered.


text:
    Dixie Culvert Manufacturing Company v. Perry County.
    Opinion delivered May 23, 1927.
    Counties — validity op contract. — A contract of a county for culverts purchased and used in 1926, to be paid for from revenues of a succeeding year, is unenforceable, notwithstanding the county court’s order showing it was imperative to purchase them, since . such order was void, under Amendment No. 11 to the Constitution.
    Appeal from Perry Circuit Court; Richard M. Mann, Judge;
    affirmed.

      Horace Chamberlin, for appellant.

      Boyd Cypert, for appellee.
   Hart, C. J.

This is an appeal by the Dixie Culvert Manufacturing Company to reverse a judgment of the circuit court affirming the judgment of the county court disallowing its claim for materials furnished Perry County and used by it in constructing culverts.

The facts are undisputed, and the case was tried in the county court and in the circuit court upon the same fácts. During the year 1926 the Dixie Culvert Manufacturing Company furnished to Perry County certain materials which were used' in constructing culverts in said county. The company charged Perry County the usual price for such materials, and furnished an itemized statement of the materials so furnished. In the fall of 1926 it became apparent that Perry County would not be able to pay said company for the materials furnished. On t'he 27th day of November, 1926, the judge- of the county court caused to be spread.upon the records of the Perry County Court an order in which it is recited that it was found imperatives to purchase, in 1926, .culverts to use in the proper drainage of the roads of the county during said year. The order recites that the county judge, in his official capacity, entered into an oral contract with the Dixie Culvert Manufacturing Company to furnish Perry County with culverts of certain grades and sizes, which are set out in detail in the order. The aggregate price of said materials amounted to $2,424.76. The order further recites that said county judge and said Dixie.Culvert Manufacturing Company contracted for the delivery of said materials in Perry County in 1926 to be paid for in 1927 out of the road funds of said county for that year. The Dixie Culvert Manufacturing Company presented its petition to the county court of Perry County on the 17th day of January, 1927, asking that its claim in the sum of $2,424.76 for culverts purchased by Perry County in 1926 to be paid for out of the revenues of the county for road purposes received during the year 1927. An itemized statement of the materials furnished .was filed with the petition. This statement shows that the materials were furnished and were used by the county in the construction of culverts during the year 1926.

The county court found, under the facts stated, that the contract made by Perry County with the Dixie Culvert Manufacturing Company was invalid and unenforceable. Judgment was accordingly rendered, disallowing the claim. The circuit court, after hearing the same evidence, was of the opinion that said contract was void, and it was adjudged that the judgment of the county court made on January 17, 1927, should be affirmed.

The judgment was correct. As we have already seen, the culvert material was purchased in 1926 and used by the county in constructing culverts during that year. It is true that there was an order of the county court showing thát it was imperative to purchase said material ■and use it in the construction of culverts in order to drain the roads and prevent them from being greatly damaged. This order of the county court, however, was absolutely void under what is termed Amendment No. 11 to our Constitution. Kirk v. High, 169 Ark. 152, 273 S. W. 289, 41 A. L. R. 782; Nelson v. Walker, 170 Ark. 172, 279 S. W. 11; and McGregor, Collector, v. Miller, Treasurer, 173 Ark. 459, and 30 Law Rep. 225, 293 S. W. 30.

In the case last cited it wsss expressly said that a county cannot incur any obligation in any year exceeding the revenues of that year, and, if this is done, such obligations are void and cannot be paid out of the revenues of a succeeding year. The court pointed out that, if this course could be pursued, obligations could be carried from one year to another, and in effect would nullify, to a certain extent, one of the purposes of the amendment. This was precisely what was attempted to be done in the case at bar. The materials were purchased and used by Perry County in 1926. When it was found that the revenues of that year would not be sufficient to pay for the material, it was agreed between the claimant and Perry County that the claim should be paid out of the road funds for 1927.

No useful purpose could be served by again stating the reasons for our holding in the cases above cited.. We deem it sufficient to say that the facts of this case bring it squarely within the principles of law decided in the cases' cited. Therefore the judgment of the circuit court ■will be affirmed.


text:
    Tatum v. Tatum.
    Opinion delivered May 23, 1927.
    1. Dower — protection op inchoate dower. — While a wife’s right of inchoate dower is merely a contingent expectancy, it is nevertheless of value and entitled to protection, if it can be done consistently with the principles of equity.
    2. Dower — opening op oil wells. — Where a husband conveyed land without the relinquishment of inchoate dower 'by his wife, and the grantees opened oil wells, the wife has a contingent interest, which should be protected.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    Mary Jane Tatum brought this suit in equity against Albert Tatum, her husband, and others, to impound a sufficient portion of the proceeds of oil-runs accruing to the undivided one-fifth^ interest formerly owned by her husband in the lands described in the complaint,, to the end that her inchoate right of dower in said lands may be protected.
    The complaint alleges that the plaintiff is the lawful wife of the defendant, Albert Tatum, and that, subsequent to their marriage, the latter became seized and possessed of an undivided one-fifth interest in certain lands, which are described by metes and bounds. According to the allegations of the complaint, Albert Tatum, with other tenants in common, conveyed said land in fee simple by their warranty deed to Lizzie Minor. She, in turn, conveyed it to the other defendants, who drilled numerous oil and gás wells on said tract and are producing a vast amount of oil from same. The value and extent of the oil and gas production are unknown to the plaintiff, but are known to the defendants. They contemplate drilling additional wells, and will continue to produce oil from said land until it is exhausted. The complaint does not allege whether any children were born as the fruits of the marriage of Mary Jane Tatum and Albert Tatum, or whether or not these parties are now living together as husband and wife.
    The chancellor sustained a demurrer to the complaint, and the plaintiff refused to plead further, and elected to stand on her complaint. It was further decreed that the complaint should be dismissed for want of equity, and the plaintiff has duly prosecuted an appeal to this court.

      Smith & Little, for appellant.

      Marsh & Marlin and Harry E. Meek, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for respective parties say that, after a-diligent search, they have been able only to find two .cases directly bearing on the issues raised by the appeal.

Counsel for the defendants rely upon the case of Rumsey v. Sullivan, 150 N. Y. S. 287, 166 App. Div. 246, to sustain the decree. In that case the court said (quoting from syllabus):

“A wife who did not join in her husband’s conveyance of land could not, during his lifetime, enjoin his grantee from drilling for oil or gas on the land and removing or selling any,oil produced, since she cannot interfere with her husband’s occupancy and use of the land, and whatever right and title he has he may convey to another, as her right of dower is always inchoate and subject to the changes, improvements, dilapidation or depreciation occurring during his lifetime, especially as no wells were dug or opened prior to.the conveyance, and her right, in case she survives'the husband, to operate the wells was therefore acquired by reason of the grantee’s act in opening them.”

There was a dissenting opinion in that case, upon the ground that, while the inchoate right of dower is not an estate in land, it is a substantial interest and highly favored in equity, and, whenever the right has been threatened by destruction or impairment, courts of equity should protect it.

■To reverse the decree, counsel for the plaintiff relies on the case of Brown v. Brown, 94 S. C. 492, 78 S. E. 447. In that case the court held (quoting from syllabus in 78 S. E.):

“An ‘inchoate right of dower,’ while it cannot he 'properly denominated an estate in lands nor a vested interest therein, is a substantial right, possessing the attributes of property to he estimated and. valued as such, a right attaching by implication of law, and which, from the moment that the fact of marriage and of-seisin have concurred, is so fixed on the land as to become a title paramount to that of any other person claiming under the husband by a subsequent act; it is such a right as equity will protect. ’ ’

Counsel for the defendants earnestly insist that the holding in the New York caseds more in- accord with our decisions bearing upon the question. They argue that, inasmuch as this court has held that the inchoate right of dower in lands during the husband’s lifetime is not an estate in lands, she has no interest which is entitled to protection either in a court of law or in a court of equity. In discussing the subject in Smith v. Howell, 53 Ark. 279, 13 S. W. 929, the court said:

“The inchoate right of dower during the lifetime of the husband is not an estate in land — it is not even a vested right, but ‘a mere intangible, inchoate, contingent expectancy.’ The law regards it as in the nature of‘an incumbrance on the husband’s title, ;and the statute cited provides a, means whereby he may convey his title free from the incumbrance. She joins, not to alienate any estate, but to release a future contingent right. The grantee must look alone to the husband’s conveyance for his title.’’

Her interest or right, whatever it may be, is something of value, and is entitled to -protection if it can be done consistently with the principles of equity. It has been well said that “the inchoate rights of the wife are as much entitled to protection as the vested right of the widow.” The public policy of this court on the subject of dower was declared in the early case of Crittenden v. Woodruff, 11 Ark. 82, and it has ever since been recog-' nized that dower is a favorite of the law. • In that case .the court said:

“The old books are full of intimations that dower was a favorite of the common law. In Lilly’s Abr. 666 (Chilton’s Probate Court Law and Prac. 372) it is said that ‘dower is favored in law in a high degree, and is . held sacred only next to life and liberty’.”

After a careful consideration of the whole matter the majority of us are of the opinion that the inchoate right of dower is more nearly like the interest of a contingent remainderman, who may be protected by impounding the funds in cases like this, as was done in the case of Watson v. Wolf-Goldman Realty Co., 95 Ark. 18, 128 S. W. 581, Ann. Cas. 1912A, 540. In a case-note to 34 A. L. R., at page 1021, the method of computing the value of an inchoate dower right is stated. As was said in the principal case there, the determination of the value is more difficult when dower is inchoate than when it is consummate. The reason is that it involves the consideration of the ages of two persons instead of one and the consideration of the health, habits and expectancy of life of both. We think the case is quite different where the husband has exchanged the land and his grantees have opened up mines. Where the husband opens up mines on his own land and works them himself, the law would presume that his wife consented to his action and was enjoying'the benefits which he might obtain. In the case at bar, the wife refused to relinquish her dower in the land, and this of necessity affected the price thereof. Her inchoate right of dower, by whatever name called, necessarily affected the price t’o be paid, because it would be consummate upon the death of her husband. Thus it will be seen that, if the husband can convey his land without relinquishment of dower on the part of his wife and his grantees can open up mines and work them to extinction, a valuable right or interest of the wife is destroyed. It is no answer to say that she will be entitled to dower in the land if she outlives her husband. It is easy to imagine cases where the lands would have no value whatever except for the oil, gas or other minerals contained in them. The exhaustion of the minerals from the land would leave them of little or no practical value. It is no answer to say that if the mine had not been opened up before the death of the husband the widow could not then open it up, as held in Cherokee Construction Co. v. Harris, 92 Ark. 260, 123 S. W. 485, 135 Am. St. 177. Here, under the allegations of the complaint, the grantees have drilled oil and gas wells and have thereby opened up the mine. The wife has a contingent interest in it which should be protected just as the remainderman had a right to protect his interest in the case last above cited.

Therefore the decree will be reversed, and the cause will be remanded for further proceedings in accordance with this opinion and not inconsistent with the principles of equity.


text:
    Driver v. J. T. Fargason Company. Bank of Commerce & Trust Company v. Driver.
    Opinion delivered May 23, 1927.
    1. Mortgages — redemption prom foreclosure. — A provision in a mortgage that ,a portion of the property constituting the homestead should not he sold until the other property was exhausted, ■and that it might be redeemed from the foreclosure, sale within a year after such* sale, held binding.
    2. Mortgages — validity op decree allowing redemption. — So much of a decree foreclosing a mortgage as provided that a mortgagor might redeem a portion of the mortgaged premises from the foreclosure sale within a ye’ar after such sale, as provided in the mortgage, held binding when not appealed from.
    3. Mortgages — redemption. — The parties to a mortgage may agree that a portion of the ‘ mortgaged land may be redeemed.
    4. Mortgages — assignment op equity of redemption_Where a mortgagor having the right to redeem the homestead from foreclosure sale assigned his right to another, his assignee had the right to redeem whether he paid the consideration, or whether the consideration was an adequate one.
    5. Mortgages — sum required to redeem. — Where a mortgage reserved the right in the mortgagor to redeem the part of the land constituting the homestead from the foreclosure sale, his assignee was required to pay only the price which had been obtained for the homestead at the foreclosure sale, since the mortgage meant redemption from the sale and not from the mortgage itself.
    6. Mortgages — apportionment op costs. — Where a mortgage provided for redemption of a portion of the land covered thereby, ánd that such portion should not be sold until other property was exhausted, and the land was sold as one piece in the foreclosure sale, held in redeeming such portion that it was not an abuse of discretion for the court to apportion the costs of sale and the foreclosure proceedings, instead of charging the portion redeemed with all costs.
    7. Costs — discretion in equity. — In awarding costs courts of equity will take into consideration all of the circumstances of the particular case, the situation or conduct of the parties, and exercise its discretion with reference to these points.
    8. Appeal and error — discretion as to costs in equity_The apportionment of costs by courts of equity will not be disturbed on appeal, unless it appears from the facts that there was a clear abuse of discretion.
    9. 'Mortgages — sufficiency of offer to redeem.- — Whether the purchaser from a mortgagor having a right of redemption under the mortgage had money to meet the check, which he offered as payment when first offering to redeem, held immaterial where he subsequently deposited a sufficient amount i>f money with the court.
    Appeal from Mississippi Chancery Court, Osceola District; J. M. Futrell, Chancellor;
    modified in Driver v. Fargason.; affirmed in Bank v. Driver.
    STATEMENT OE PACTS,.
    These two cases have been consolidated for the purpose of determining the issues raised by the appeal, and the principal question relates to the right of a mortgagor to redeem the mortgaged lands from a foreclosure sale in chancery.
    In case 9708, certain individuals, as trustees for J. T. Fargason Company and others, brought this suit in equity to foreclose a mortgage on real estate executed by William Walter Driver to said trustees for the benefit of his creditors. On April 12, 1921, William Walter Driver executed a deed of trust to certain trustees, conveying all his property, consisting of a large amount of personal property and 3,390 acres of land situated in Mississippi County, Arkansas, to secure debts amounting at that time to approximately $600,000. The deed of trust contained a provision that the trustees should continue the farming operations of Driver for the period of five years, with the right to foreclose the deed of trust at the end of any year that the farming operations showed a loss. On April 3, 1924, a complaint to foreclose said deed of trust was filed in the chancery court, and, as grounds therefor, it was alleged that the farming operations were running at a loss. The deed of trust contained a proviso which reads as follows: “Provided, however, that the home place shall not be sold until all other property is exhausted, and, if it must be sold, I shall have one year from the date of said sale to redeem the 320 acres upon which I live, now known as the ‘home place’ and •that at all times during the life of this trust I shall have the right to occupy and use the residence, outhouses 'and such of the barns thereon as I may need for my individual use,-without cost or expense to me. ”
    On the 16th day of December; 1924, a decree of foreclosure was entered of record and a commissioner was duly appointed to sell the real and personal property embraced in the deed of trust, in case payment of the mortgage indebtedness was not made within the time provided in the decree. The decree of foreclosure contained a provision giving William Walter Driver the right, within a year from the date of sale, to redeem his home place, which is specifically described in the decree. The home place is the same place described in the deed of trust as above set forth. The lands described in the decree were duly sold by the commissioner. L. C. Whit-ton.became the purchaser of said land for the creditors named in the mortgage for the. sum of $230,000. The land was' sold to Mm as a- whole for that price. The personal property was sold for $39,566.75. The sale was duly approved hy the chancery court on October 1, 1925. The commissioner was allowed a fee of $300 for the sale of the personal property and $1,000 for the land. When the report of the commissioner was confirmed, he was directed to execute a deed to tlie purchaser. This case is here on appeal.
    On' the 18th day of March' 1926, Abner Driver filed a petition in the chancery court asking to redeem the home place ábove described, and the trustees named in the deed of trust are made defendants in the suit. The record in this case shoivs that, on the 15th day of December, 1924, William Walter Driver executed to Abner Driver a quitclaim deed to the home place' above described, comprising 320 -acres, which is described by metes and bounds in the deed. The consideration recited in the deed is $500. The deed was duly acknowledged on the same day and was duly filed for record on the 23rd day of March, 1925. The record in this case shows that the land described in the deed of trust was sold under the foreclosure of December 16,1924, by the commissioner appointed for that purpose of March 3, 1925. The commissioner first offered for , sale the lands of Driver in separate tracts, as provided by the .decree, and then offered the land for sale.ás a whole. Whitton bid the sum of $230,000, and, that being more than the aggregate of the separate bids, the 3,390 acres of land described in the deed' of trust was struck, off and sold to said Whitton. On October 1, 1925, the commissioner’s report of sale of said land was approved and confirmed by the chancery court. The decree affirming the foreclosure sale contained the following, provision: “It is further ordered that said clerk and commissioner pay to ft. E. Lee Wilson' the sum of $31,357.56, sáid R. E. Lee Wilson holding a first lien on the property sold, under said decree.”
    In his petition to redeem Abner Driver offered to pay into the court the sum of. $21,000 for the purpose of redeeming thé Driver home place. On September 27, 1926, a decree was entered of record sustaining Abner Driver’s right to redeem said home place, and that, taking into consideration the interest, taxes and rents for the year 1925, the sum necessary to redeem the Driver home place was fixed at $19,392.62. This case is also here on appeal.
    The two cases have been consolidated for the purpose of determining the issues raised by the appeal. The record in the court'below in very voluminous, but we think the facts above stated are all that is necessary for the determination of the issues raised by the appeal, with the exception of such additional facts as may be stated under appropriate headings in the opinion.

      J. T. Goston, for Driver.

      A. F. Barham, and Gautney •& Dudley, for Bank and Fargason.
   Hart, C. J.,

(after stating the facts). The principal question raised by the appeal involves the right to redeem what is called the Driver home place from the mortgage foreclosure decree, and that question is settled by the provisions of the deed of trust. As will He seen from our statement of facts, the deed of trust contains an express provision that the home place of 320 acres shall not be sold until all the other property is exhausted, and that the mortgagor shall have one year from the date of sale to redeem said 320 acres- known as the home place, upon which he resides. This provision was as much a part of the deed of trust as any other provision contained in it and was just as binding upon the parties. The chancellor recognized the validity and binding force of this provision of the deed of trust in the foreclosure decree. It was there expressly provided that the mortgagor should have the right to redeem the 320 acres known as the home place within one year from the date of sale under the foreclosure decree, in compliance with the provisions of the deed of trust on this point. No appeal was taken by the trustees from the foreclosure decree, and that part of the decree providing that the mortgagor might redeem the 320 acres known as the home place is just as valid and binding upon the parties as the other provisions of the decree. It is well settled that there may he a redemption of a portion of the mortgaged land with the consent of the mortgagee. 2 Jones on Mortgages, 7 ed., § 1072; Kerse v. Miller, 169 Mass. 44, 47 N. E. 504; and Dougherty v. Kubat, 67 Neb. 269, 93 N. W. 317. To the same effect see Union Mutual Life Ins. Co. v. Kirschoff, 27 N. E. 91, 133 Ill. 368; Potter v. Brown, 50 Mich. 436, 15 N. W. 540; Heald v. Jarcline (N. J. Ch.), 21 Atl. 586; Cox v. Ratcliffe, 105 Ind. 374, 5 N. E. 5; and Oertel v. Pierce, 116 Minn. 266, Ann. Cas. 1913A, page 854, and case-note,- 133 N. W. 797. The record shows that the right of redemption from the sale in the case at bar was exercised within the period of time stipulated in the deed of trust.

It is next insisted that, even if William Walter Driver, the mortgagor, had the right to redeem, no such right existed in favor of Abner Driver. The record shows that William Walter Driver conveyed the home place, comprising '320 acres, to Abner Driver in consideration of $500, which was paid him. This quitclaim deed gave to Abner Driver the right to redeem said home place, provided he complied with the terms of the mortgage. It does not make any difference whether or not the consideration was actually paid as recited in the quitclaim deed or whether the consideration was an adequate oné. So long as the lien of the mortgage was recognized, it did not concern the mortgagee whether William Walter Driver continued to hold himself the equity of redemption or gave it to Abner Driver. Bradley v. Snyder, 14 Ill. 263, 58 Am. Dec. 564:

•This court has held that one who purchases mortgaged land from the mortgagor succeeds to the latter’s equity of redemption from the mortgage. Scott v. Henry, 13 Ark. 112; Cohn v. Hoffman, 56 Ark. 119, 19 S. W. 233; and Livingston v. New England Mortgage & Security Co., 77 Ark. 379, 91 S. W. 752.

It will be observed that the language of the deed of trust provides that the home place shall not be sold until all other property is exhausted, and, if it must be sold, the mortgagor shall have one year from the date of sale to redeem it. This means that the mortgagor shall have the right to redeem the. home place from the sale under the mortgage and not from the mortgage itself. Therefore, in exercising the right to redeem, Driver was only required to pay into court what the home place sold for if it had been sold separately, as provided in the mortgage. The record, however, shows that the home place was not sold separately after the other property had been sold, as provided in the mortgage, but the whole of the mortgaged land was sold together. Now, the whole of the mortgaged land comprised about 3,390 acres, and the home place consisted of 320 acres. All of this was sold for the sum of $230,000. The court costs in the foreclosure decree amounted to $3,777.55. Abner Driver deposited a certified check in the amount of $21,000, asking the court to apply the whole or so much as was necessary thereof to the redemption of the home place. The chancery court was of the opinion that the proportionate pa,rt of the amount all the lands sold for, including the proportionate part of the cost which should be borne by the home place, amounted to $19,392.62. The balance of the $21,000 was ordered to be returned to Driver. • In arriving at the amount necessary to redeem the home place, the court apportioned the costs of the case, including the cost of sale and the total cost of the foreclosure proceedings.

It is earnestly insisted that the court erred in not charging the whole of the cost of the foreclosure proceedings against Driver and in computing the whole.cost and fixing the amount to be paid by him for the redemption of the home place. We do, not agree with counsel in this contention. Courts of equity will, in awarding costs, take into consideration the circumstances of the particular case before it, the situation or conduct of the parties, and exercise tlieir discretion -with reference to these points. McCauley v. Arkansas Rice Growers’ Co-op. Assn., 171 Ark. 1155, 287 S. W. 419, and Temple v. Lawson, 19 Ark. 148.

Courts of .equity, by virtue of the discretion vested in them, have power in a proper case to apportion the costs between the parties, and their action will not be» disturbed, unless it appears from the facts disclosed by the record that there was a clear abuse of discretion. In the case at bar no such abuse of discretion is shown. The express terms of the mortgage provided that all the other property should be sold before the home place, and the mortgagor was given the right to redeem it from the mortgage sale. Instead of carrying out the provisions of the mortgage, the mortgagee caused all of the land to be sold in bulk, and the sale was confirmed in that way. There would have had to have been a foreclosure of the land in the deed of trust in any event, and all of it should have been sold before the home place was sold. Not having done so, it became necessary for the court to fix the amount at which the home place would likely have been sold had the provisions of the deed of trust been carried out. It would be inequitable to tax the whole cost of the foreclosure against this tract of land. Indeed, it is probable that no foreclosure would have been necessary as to it. The parties might have agreed upon its value. In any event, it is in accordance with the principles of equity .to apportion the costs, and it cannot be said that the chancellor abused his discretion in the amount of cost awarded as the proportionate part necessary to be taxed agiainst the home place in fixing the amount for which it might he redeemed.

Again, it is insisted that Abner . Driver gave a check when he first offered to redeem the home place. We do not deem it necessary to discuss this phase 'of the case at length. Whether he had the money in the bank with which to pay the check at the time he gave it or not, it is certain that he paid into the court the amount necessary to redeem the laud. The record shows that, when he first applied to the mortgagees to redeem the land, they denied this right to redeem. Under these circumstances it made hut little difference whether he had the money . at the time or not. As we have just seen, he did have the amount necessary to redeem the land when it was fixed by the court. Indeed, before that time, he had *paid into the depository of the court the sum of $21,000 to he used in redeeming the land.

We have carefully considered the matter in all its bearings and have given consideration to all the'arguments made by learned counsel in their briefs. The conclusion we have reached on the whole case, after considering all the evidence and law applicable thereto, is that in No. 9708 the decree should be modified so as to allow a redemption of the home place as herein provided; and the decree in No. 10074 allowing the redemption of the home place was correct, and will therefore be affirmed.

It is so ordered.


author: Wood, J.

text:
    Louisiana & Northwest Railroad Company v. J. P. Machen & Company.
    Opinion delivered May 23, 1927.
    1. CARRIERS — DELIVERY — QUESTION FOR JURY. — In an action against a connecting carrier for failure to deliver goods, the issue whether the carrier in fact delivered the goods in controversy to the consignee’s agents held for the jury, where the testimony was conflicting.
    2. Carriers — liability of connecting carrier for non-delivery.— Where a consignee proved by a preponderance of the evidence that the goods in controversy were delivered to a connecting carrier, he was entitled to a recovery, if the carrier failed to make delivery.
    3. Carriers — instruction. — In an action against a carrier for nondelivery of a shipment of goods contained in a case bearing definite numbers, an instruction referring to the “goods in controversy” held not erroneous as misleading.

      4. Carriers — instruction as to effect of receipted freight bill. —In an action against a carrier for non-delivery of goods, an instruction that a receipted freight bill was only prima facie evidence of delivery, and that the jury might nevertheless find for plaintiff if the goods were not delivered, held erroneous.
    5. Trial — construction of instructions as a whole. — Instructions prayed for by the appellee and granted must be considered in connection with instructions granted in behalf of appellant to determine whether the case was correctly submitted.
    6. Evidence — admissions of agent. — In an action against a carrier for non-delivery of goods, statements of the station agent that the goods had not been received and were not delivered, held admissible as statements made within the line of the agent’s duty, without proof of agent’s control" over receipt and delivery of freight.
    Appeal from Columbia, Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Henry Stevens, for appellant.

      McKay & Smith, for appellee.
   Wood, J.

This is an action by the appellee against the appellant to recover damages for the alleged loss of a case of cotton- fabrics consisting of M. F. C. gingham of the value of $498.22. The appellee alleged that on the 24th of June, 1920, Marshall Field & Company delivered to the Danville & Western Bailway Company at Spray, N. C., to he shipped to the plaintiff at Magnolia, Arkansas, the case of fabrics mentioned, and that the Dan-ville & Western Bailway Company, through its connecting lines, delivered the same to the appellant at Chestnut, Louisiana, to he shipped to the appellee at Magnolia, Arkansas; that the appellant had failed to deliver the same to the appellee, to its damage in the sum above stated, for which the appellee prayed judgment.

The appellant, in its answer, among other things admitted that the said shipment and case of goods was received by defendants, and alleged that same was promptly delivered to plaintiff at Magnolia, Arkansas.

The testimony establishes the following facts: On the order of the appellee there was shipped from Marshall Field & Company, on June 23, 1920, from Spray, N. C., a case of cotton fabrics alleged to contain M. F. C. gingham of the value of $498.22, over the Danville & "Western Rail: road, the initial carrier, and over the appellant, the delivering carrier. The package or pase was numbered 198,139. The case was covered by waybill numbered 2041, dated June 24, 1920, showing shipment from Spray, N. C., to Chestnut, where it was received by the agent of the connecting carrier and by him delivered at that point to the appellant, and from there to Magnolia, Arkansas, under waybill numbered 178, 'dated July 28, 1920. The last waybill covered the waybill No. 2041, dated June 24, 1920, from Spray, N. C. On August 6, 1920, a case numbered 198,139, covered by waybill No. 178, was delivered by the appellant’s agent at Magnolia, Arkansas, to George W. Monroe, drayman and agent of the appellee.

Witness J. Y. Orrell testified, in substance, that he was the overseer of the packing and shipping department of the Carolina Cotton'& Woolen Mills at Spray, N. C., and shipping agent of'Marshall Field & Company; that case No. 198,139 was packed on May 14, 1920, containing 30 pieces of M.. F. C. gingham of the value of $498.22; that this cáse was delivered to Danville & Western Railway Company about June 24,1920, for shipment to the appellee at Magnolia, Arkansas. It was further shown that the M. F. C. gingham was packed in a wooden box numbered 198,139; that the box was constructed of tongue-and-groove plank, 5/8 of an inch thick, securely nailed together and wrapped with Avire at both ends. It atos shoAvn by the shipping- clerk and the billing clerk of the Carolina Cotton & Woolen Mills at Spray, N. C., that they did not receive any information .from the appellee of a failure to receive the case of gingham packed and shipped as indicated. It Avas shown that the initial carrier received written notice on Noa^ember 13,1920, that “one case of M. F. C. gingham numbered 198,139, consigned to the appellee, had not been delivered. ’ ’

J. P. Machen testified, in substance, OA^er the objection of the appellant, that his company never received the goods; that he notified appellant’s local agent of the matter, and the agent stated’ that the shipment had not arrived, and that he had traced the same, but coald not find it, and that the goods had never been delivered. Witness stated that Mooney made an affidavit to this effect, which he forwarded to Marshall Field & Company’s claim department. He was present when the affidavit was signed, and the station agent stated in his presence that the shipment had never reached the railroad station at Magnolia, and that the shipment had never been delivered to Gr. W. Monroe, the drayman and agent of the appellee. He stated that, if the case No.-198,139, involved in this suit, -contained M. F. C. gingham, the Machen Company did not receive it. It received no goods which it did not have an'invoice to cover.

W. E. Walker, another member of the - firm of Mache» & Company, testified to the same effect. He also stated, without objection, that the local agent told him that the case in controversy had never arrived at Magnolia, and that the goods had never been delivered. Another witness, who was an employee of Machen & Company at the time, stated that the M. F. C. gingham had never been delivered.

The cashier of the appellant testified to the effect that the appellant’s records showed that the waybill No. 178 was received at Magnolia on the 31st of July, 1920; that Gr. W. Monroe called for the freight of appel-lee, and that on the 6th or 8th of August, 1920, he delivered to Monroe the three pieces of freight called for by the waybill No. 178 and collected the freight on the shipment and gave Monroe the expense bill covered by the waybill, and that Monroó signed the receipt for the goods, took the freight, and paid the freight bill from Spray, N. C., to Magnolia, Arkansas. On cross-examination he stated that all he knew about the matter was what his records showed, and that these records were correct. He did not deliver the goods. The warehouseman did that. He did not know whether the goods were délivered to Monroe or not. He only knew that Monroe paid him the money and got the receipts. Witness could not testify that the goods arrived at the station. He did not check them in or see them checked — he conld not swear that the three pieces came in, and did not know that either one of them was numbered 198,139.

The court, at the instance of the appellee, instructed the jury, in effect, that the burden was on the appellee to prove that the goods in controversy had been delivered 'to the appellant by its connecting carrier, and that their verdict should be in favor of the appellee unless the appellant delivered the property to the appellee. Also there were instructions to the effect that a receipted freight bill was only prima facie evidence of the delivery of the freight, and that, notwithstanding this receipted freight bill for the goods in controversy, they should find for the appellee if the appellant failed to deliver the goods to the appellee or its agent.

At the instance of the appellant the court, in effect, told the jury that, if they found from a preponderance of the evidence that the appellant delivered a case of goods No. 198,139 at Magnolia, Arkansas, to G. W. Monroe, drayman for Machen & Company, their verdict should be for the appellant, although the case did not contain the goods covered by the invoice of Marshall Field & Company.

The court further instructed the jury that, before the appellee could recover in the case, it must prove by a preponderance of the evidence that the gingham described in the complaint was shipped as alleged, and that the value of the shipment was $498.22, and that it was received by the appellant, and that appellant failed to deliver the gingham to the appellee.

The jury returned a verdict in favor of. the appel-lee, and from a judgment in appellee’s favor is this appeal.

There was testimony from which the jury might have found that a case numbered 198,139, containing 30 pieces of M. F. C. gingham, was delivered to the initial carrier at Spray, N. C., and, through the connecting carrier, was delivered to the appellant for shipment to the appellee at Magnolia, Arkansas. In fact, the appellant admitted that the case of cotton goods alleged was received by it for shipment to the appellee. The appellant contends, however, that the undisputed testimony shows that this same case was delivered by it to Monroe, the drayman, the consignee’s agent, at Magnolia, Arkansas. The material testimony on this disputed issue of fact is set forth above, and it speaks for itself. It was an issue' of fact for the jury, under the evidence, as to whether or not the appellant delivered the case of goods in controversy at Magnolia to the appellee’s agent, Monroe. The appellant contends that the undisputed testimony shows that the case of goods in controversy was delivered to the appellee’s agent, Monroe.

Appellant’s cashier, on his direct examination, testified that his records, which he kept and which were correct, showed that he delivered to Monroe the three pieces of freight covered by waybill No. 178, which includes the case in controversy, on August 6' or 8, 1920; that he paid the freight thereon and signed the receipts for the goods. On cross-examination, however, the witness stated, among other things, that he- could not remember if it were not for the figures on Iris record. He did not remember a thing on earth about the goods. His records showed that Monroe got three cases of something, but witness did not know what they were and did not remember that one of them was ease No. 198,139. That his records did not show that case No. 198,139 was delivered to Machen & Company,. and,»so far as he was concerned, he knew nothing about it except as shown by the records. On cross-examination he stated that he did not deliver anything but the expense bill; that he did not deliver the goods; that that was the duty of the warehouseman, and witness did not know whether they were delivered to Monroe or not. He stated that he did not know whether Monroe got the goods or not, or what he did with them. Witness only knew that he got the money and the receipt. He could not swear that the three pieces came into the station. He did not see them checked in there. Witness did not check them himself and did not see them checked in. He was only testifying from the records.

On the other hand, the members of the firm of the appellee and one of its employees who was working for it at the time stated that the goods in controversy 'were not received. Two of these witnesses stated that the station agent told them, on several occasions, that the goods had never arrived in Magnolia. While appellant’s cashier testified that his records showed that the goods were delivered to appellee’s agent, Monroe, and that these records were correct, his testimony further showed that he did not know whether the goods were actually delivered to Monroe or not, and that it was the duty of the warehouseman of appellant to deliver the goods. The warehouseman of the appellant was not introduced.

The issue as to whether the case numbered 198,139 was delivered to appellee’s agent, Monroe, was submitted to the jury under correct instructions. Appellant contends that the words “goods in controversy” used in appellee’s prayers for instructions' were misleading. But only a general objection was made to the instructions, and it occurs to us that this particular phraseology could not have misled the jury, because the testimony shows that the goods in controversy were designated by a case bearing the number 198,139. If this box, so designated, was delivered to the appellee or appellee’s agent, then appellant was not liable, but, on the other hand, if a box bearing this number was not delivered to the appellee or its agent, the appellant was liable.

The appellant further contends that the appellee’s" prayers for instruction Nos. 2 and 3 were' incorrect because they were abstract in telling the jury, in effect, that, notwithstanding they might find that the plaintiff or plaintiff’s agent receipted a freight bill showing delivery of the goods in controversy, the jury nevertheless might find for the appellee if they further found that the appellant did not deliver the case of goods in controversy. These instructions, in effect, hut told the jury that the receipted freight hill was prima■ facie evidence that the' case of goods in controversy had been delivered to the appellee, and that it ivas the province of the jury, notwithstanding the receipted freight bill, to determine whether or not the goods in controversy had actually been delivered to the appellee or to its agent. In other words, the issue at last was whether or not the case of goods in controversy had been delivered to the appellee or to its agent, and, in determining this issue, the jury should take into consideration the receipted freight bill in connection with the other testimony in the record bearing on that issue.

When these instructions are considered, as they must be, in connection with appellant’s prayers for instructions which were granted, we are convinced that the issues of fact in the case were submitted to the jury under correct instructions.

The appellant contends that the court erred in permitting the witness Machen to testify that Mooney, the station agent of the appellant at Magnolia, Arkansas, said, and made affidavit, in the presence of Machen, that the shipment in controversy had never reached the appellant’s station at Magnolia, and that the goods were not delivered to the appellee or its agent. The reason urged for the objection to the admission of this testimony is that there was no evidence in the record to show that a station agent had any control over the matter of receiving or delivering freight, and that, in the absence of testimony showing that he had such authority, his statement and declaration to Machen was inadmissible.

In Daniel v. Doyle, 135 Ark. 547-550, 204 S. W. 210, 211, we said:

“In its broad sense and in its common signification, a station is a place at which both freight and passengers are received for transportation or are delivered after transportation, and includes a flag station.” See also St. L. etc., Ry. Co. v. Neal, 66 Ark. 543, 51 S. W. 1060.

Since Mooney was tbe station agent at the town of Magnolia, it was within the, scope of his employment and authority to receive' and deliver freight. “It has been held that a shipper may assume, in the absence of anything to the contrary, that a railroad station agent has authority to contract with reference to the acceptance and carriage of freight.” 4 Elliott on Railroads, p. 482, § 2118, and numerous cases cited in. note.

Wood, in his work on Railroads, says:

“Indeed, from necessity, and from the usual course of business, these agents must, in the absence of notice to the public of any special limitations upon their authority, be treated as the representatives of the corporation at their respective stations, with full authority to bind it by general or special contracts relative to the transportation of freights over the road. Being authorized to receive, receipt for, and bill goods for shipment, the public has a right to presume that they have authority to bind the corporation by contracts relating thereto.” I Wood on-Railroads, page 506.

• The statements made by the station agent, Mooney, to Machen, to which the appellant objected, were strictly within the line of his duty and the scope of his authority, and the court did not err in admitting the testimony as to these statements. I Elliott on Railroads, § 254.

There is no reversible erroi’, and the judgment is therefore affirmed.