text:
    Sparks v. Holloway.
    Opinion delivered February 28, 1921.
    1. Highways — determination op ownership. — In determining whether or not a majority in acreage of lands within a proposed road improvement district was represented by the signers to a petition, under Acts 1915, No. 338, the assessment of lands for general taxation is conclusive evidence of ownership of lands within the district.
    2. Highways — legislature may organize road district without consent OP majority. — The Legislature may organize a road improvement district without the consent of a majority in land value, acreage or number of landowners and may provide for the organization of such a district on any basis it might choose.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Emmet Vaughan, for appellants.
    The court erred in refusing to declare as requested by appellants. There is a conflict between sections 1 and 2 of act 338, Acts 1915, which can be reconciled only upon the theory that the assessment in force at the time is prima facie evidence of ownership. The court’s interpretation of the act is error. The Legislature did not intend more than to malm the assessment book in force at the time a prima facie showing of ownership. The court’s ruling is manifestly unjust to the actual landowners, and the judgment should be reversed.

      F. E. Brown and Carmichael $ Brooks, for appellees.
    1. The circuit court is a court of general jurisdiction, and all presumptions are in favor of its judgments. 137 Ark. 462. There is no proof that the petitions contained a majority in land value or. in number of landowners. One is entitled to a judgment upon a prima facie showing on evidence. If even prima fade evidence, it was sufficient, as appellants offered no proof to the contrary; they did not even introduce the assessment book. See 140 Ark. 10.
    2. There was no motion for a new trial.
    3. Appellants show no* injury by the court’s refusal to declare that the assessment books wore only a prima facie showing. If any error was committed it was* invited error. The remonstrants set forth that no plans or sketch were filed with the county clerk before the circulation of the petition, and no plans or • specifications made by the State Highway 'Commission were filed with the county clerk before the circulation of the petition, and there was no proof to overcome the allegation. The judgment is correct.
   Humphreys, J.

This is an appeal from a judgment rendered in the Northern District of the Prairie Circuit Court, affirming the judgment of the county court of said county in dismissing the petition of appellants for the organization of Des Arc-Steinville Eoad Improvement District, under act 338, Acts 1915, commonly known as the Alexander Road Law. It was admitted by the petitioners that a majority in acreage within the proposed district had not been signed for by parties in whose names the same had been assessed at the time, for the purpose of general taxation, and no contention is made that the petition contained a majority of the landowners or a majority in land value within the district, according to the last assessment for the purpose of general taxation in said county. Based upon the admission, appellants requested the court to declare that the assessment book for general taxation, in force at the time the petition was filed, presented only a prima facie showing of ownership, which might be rebutted by evidence of ownership in the petitioners signing the petition. The court refused to so declare, but, on the contrary, ruled that, in determining whether or not a majority in acreage of lands within the proposed district was represented by the signers of the petition, the assessment of lands within the district in force at the time for general taxation governed. This appeal is for the purpose of testing the correctness of that ruling.

It is insisted by appellants that there is a conflict between sections 1 and 2 of said act, which can be reconciled upon the theory only that the assessment in force at the time is prima facie evidence of ownership, subject to be rebutted by evidence of actual ownership at the time of the filing of the petition. It is true that section 1 of said act provides that a majority in acreage within a certain district may petition for the organization of a road improvement district therein, but we see no conflict between that provision and the provision in section 2 providing that the majority in acreage within the district shall be determined by the assessment for the purpose of general taxation in force in the county at the time the petition is filed. The second section simply provides the method by which a majority of the acreage, referred to in said section 1, shall be ascertained or determined. The Legislature had a right to organize the district without the consent of a majority in land value, acreage or number of landowners, and could therefore provide for the organization of such a district upon any basis it might choose. Section 2 of the act, by clear and unambiguous language, made the assessment record, at the time the petition was filed, conclusive, and not prima facie, evidence of the ownership of the land. The language is that a majority in acreage shall “be determined by the assessment for the purpose of general taxation in force in said county at the time.”

The court’s interpretation of the act was correct, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Roberts v. Pratt.
    Opinion delivered March 7, 1921.
    1. Trusts — parol agreement — statute of frauds. — A parol agreement that another shall he interested in the purchase of lands, or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, falls within the statute of frauds, and can not give birth to a resulting trust.
    2. Trusts — trust ex maleficio. — An heir purchasing from his deceased father’s estate held not a trustee ex maleficio, though he orally agreed to hold as trustee for the widow and the other heirs, in the absence of any contention of fraud or sale for inadequate price or that the parties were induced to refrain from attending the sale or from adopting other means for protecting themselves from an improvident sale, and where there was no showing of wrong, and the other heirs did not furnish any of the purchase money.
    Appeal from Pulaski Chancery Court; J. E. Marti-neau, Chancellor;
    reversed.

      Will O. Akers, for appellants.
    The only issues are, (1) Can a parol express trust be engrafted upon the absolute administratrix’s deed? (b) Are the appellees estopped by the fact that they agreed to or permitted the conveyance of the lots to Q-abe Pratt, Jr., by a deed absolute on its face?

      1. A parol trust can not be engrafted upon the absolute administratrix’s deed. Kirby’s Digest, §§ 3666-7. These sections prohibit the creation of express trusts by parol, but do not prohibit the creation of implied trusts by parol. 73 Ark. 310, 312-13. There was no trust which arose or resulted by implication, and the court erred in declaring a trust. 103 Ark. 145-9; 3 Pomeroy on Equity, pp. 1981-2, § 1030; 73 Ark. 310-13; 84 Id. 189-192. This was not an implied trust nor a constructive trust. 3 Pom. on Eq., p. 2007, § 1044; lb., p. 1983, ■§ 1031; lb. There was no gift, and the instrument does not state a consideration, the consideration being $1,000. See, also, 3 Pom. on Eq., pp. 1991-2, § 1037. An advancement of money by the person claiming to be the beneficiary of a resulting trust is necessary to the creation of a resulting trust. 50 Ark. 71, 76-7. There was no fraud and no trust.
    2. Appellees are estopped from asserting as against appellants the existence of a trust relation. They have received adequate compensation for the lots, arid no injustice can be done by holding that they are not entitled to take the surplus in the commissioner’s hands after the foreclosure sale, but injustice has been done Roberts unless it is held that that surplus, or at least enough thereof to repay the moneys he has expended on Gabe Pratt, Jr.’s, account, is appellant’s property and should be delivered to heirs. |84 Ark. 227; 86 Id. 486; 92 Id. 315-20; 126 Id. 595. Roberts is clearly entitled to all the surplus, and the decree should be reversed.

      T. E. Helm, for appellees.
    1. The holding was not an express trust in-the sense claimed by appellants.
    1. The purchase of the lots by Gabe Pratt, Jr., at the sale, under the agreement and the conveyance to him by the administratrix, constituted and was an implied, resulting or constructive trust. The argument of appellants that it was a parol express trust in the sense contended for is misapplied, and counsel has wholly misconstrued and misapplied the law applying in this case. C. & M. Digest, § 4868; 70 Ark. 145; 59 Miss. 148; 41 Conn. 278; 25 la. 43; 40 Ark. 62, 68. See, also, 132 Ark. 408-9. The statute of frauds does not apply. 70 Ark. 145; Id. 146; 105 Id. 323. Under the facts of this case, the findings are correct. Cabe Pratt, Jr., was heir to one-sixth interest in the property, and in addition he had the deed from Mary E. Pratt, his mother, to all her dower interest in the property. The decree is in all things correct.
   McCulloch, C. J.

Cabe Pratt was the owner of two lots in the city of North Little Rock and died intestate, survived by his widow and children, who are appellees in this case. The widow of Gabe Pratt administered on the estate under the orders of the probate court of Pulaski County, and for the purpose of raising funds to pay debts of the estate she sold said lots pursuant to the orders of said probate court; all the proceedings being regular and in accordance with the statute governing such sales. The lots were duly appraised at the sum of $1,300, and at the sale G-abe Pratt, Jr., one of the children and heirs at law of said decedent, became the purchaser for the sum of $1,000. The sale was duly confirmed by the probate court, and a deed was executed to said purchaser by the administratrix.

Gabe Pratt, Jr., the purchaser of said lots, borrowed the sum of $1,000 from the People’s Savings Bank of Little Rock and mortgaged the lots to secure the debt. The sum borrowed was used in payment of the purchase price to the administratrix of the Pratt estate. The widow had previously advanced the money to pay off the debts of the estate, and this sum went to her, and she conveyed her dower interest in the lots to Gabe Pratt, Jr.

Appellant, C. G. Roberts, obtained judgment against Gabe Pratt, Jr., in the circuit court of Pulaski County for the recovery of a sum of money' paid by said appellant as surety for Gabe Pratt, Jr., on a note executed to another person for borrowed money. Execution was issued on said judgment and levied on said lots, and appellant became the purchaser at the sale.

The present action was instituted in the chancery court of Pulaski County by the People’s Savings Bank and W. E. Lenon, as trustee, to foreclose said mortgage. The suit was against Gabe Pratt, Jr., and appellant Roberts was joined as a defendant as a subsequent purchaser of the mortgaged property. Appellees, who are the heirs at law of Gabe Pratt, deceased, intervened in the action and filed a plea in the nature •of .a cross-coinplaint against appellant Roberts and also against Gabe Pratt, Jr., alleging, in substance, that Gabe Pratt, Jr., was not the owner in fee simple of said lots, but that he had purchased the same at the sale by the administratrix under the express agreement that he would hold the title to said lots as trustee for the other heirs, and that he now holds said title in such capacity as trustee. The prayer of the cross-complaint was that the deed to appellant under the execution sale be canceled, except as to the one-sixth interest of Gabe Pratt, Jr., in the land, as one of the heirs at law, and that said interveners be decreed their proportionate part of all the funds raised from the foreclosure sale in excess of the amount necessary to satisfy the mortgage to the plaintiff People’s Savings Bank. Appellants answered the cross-complaint and denied that Gabe Pratt, Jr., held the lots as trustee for appellees as alleged, but that on the contrary, the said Gabe Pratt, Jr., became the owner in fee simple as purchaser at the sale by the administratrix, and also that at the time of the execution sale at which appellant became the purchaser he held title to the said property in fee simple subject to the mortgage to the plaintiff People’s Savings Bank.

At the trial of the cause there was oral testimony introduced establishing the fact that Gabe' Pratt, Jr., purchased said property at the sale by the administratrix at the request of the widow and heirs and upon an express oral agreement that he would hold the title to said land as trustee for the other heirs. There was no writing between the parties in evidence of the alleged agreement. On the trial of the cause the court decreed a foreclosure of the mortgage to the People’s Savings Bank and ordered a distribution of any surplus funds remaining in the hands of the commissioner after the satisfaction of said mortgage, awarding to appellant the share of Grabe Pratt, Jr., as one of the heirs at law of Grabe Pratt, deceased, and the dower interest of the widow which had been conveyed to Grabe Pratt, Jr., and the remainder was apportioned to the appellees as the other heirs of Grabe Pratt. The court held that there was a valid and enforcible trust estate in the land in favor of appellees.

The testimony clearly shows' an attempt to establish an express trust by oral agreement, but this is forbidden by the statute of frauds. In the case of W. B. Worthen Co. v. Vogler, 145 Ark. 161, we said:

“It is too well established for controversy that a parol agreement that another should be interested in the purchase of lands without the advance of money by the other person, and there being no other element in the case than that of a broken promise to reconvey, is within the statutecof frauds, and can not be made the basis of a trust, either express or implied.”

In that case we also quoted the following from Bland v. Talley, 50 Ark. 71: “Now, a parol agreement that another shall be interested in the purchase of lands., or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, falls within the statute of frauds, and can not give birth to a resulting trust. ’ ’

Nor does the transaction contain any of the elements of a trust ex maleficio. There is no contention that there was any fraud committed — not even a broken promise to reconvey the property. There is no contention that the property was sold for an inadequate price, or that the parties were induced to refrain from attending the sale or from adopting other means for protecting themselves from the consequences of an improvident sale. There is, in fact, nothing in this case to establish a trust except the express agreement of the parties. Therefore, it can not be said that there was any wrong, either actual or constructive, committed by the trustee sufficient to justify a court of equity in declaring the existence of a trust ex maleficio. Ammonette v. Black, 73 Ark. 310; W. B. Worthen Co. v. Vogler, supra. It is clear that no trust resulted, for appellees did not furnish any of the funds used in purchasing the property. They did not furnish the property itself nor an interest therein because it was sold under an interest (that of the creditors of the estate) which was superior to that of the heirs-. It is therefore unnecessary to cite any authority to show that there was no resulting trust.

It is not contended that the conveyance constituted an equitable mortgage. There is no testimony tending to show that there was an agreement on the part of Gabe Pratt, Jr., to hold the property as security for debts or for funds advanced to pay off the debts of the estate. There was no intention to create a mortgage and no basis in the facts of the case for the court to declare an equitable mortgage. .In other words, we find that, according to the undisputed testimony, there is nothing in the way of an attempt to create a trust except an express agreement on the part of Pratt, Jr., that he would hold the land and title for himself and as trustee for the other heirs. This agreement, as before stated, is within the statute of frauds and is unenforceable.

The chancery court was, therefore, in error in declaring a trust, and the decree is reversed and the cause remanded with directions to dismiss the cross-complaint of appellees for want of equity, and to render decree in favor of appellant C. G. Roberts for the surplus funds in excess of the amount necessary to pay off the debt due the plaintiff, People’s Savings Bank.


text:
    Bertig Brothers v. Independent Gin Company.
    Opinion delivered March 7, 1921.
    1. Appeal and error — waiver of filing of mandate. — On the reversal of a case on appeal, the parties may waive the filing of the mandate; such waiver not being a case of attempt to confer jurisdiction on the lower court by consent, but merely of the formal evidence of the jurisdictional, fact.
    2. Certiorari — affirmance on quashing writ. — Where the record of the trial court is brought up on certiorari, which questions only the jurisdiction of the trial court, the practice is either to quash the judgment if the trial court had no jurisdiction, or to affirm the judgment if the court had jurisdiction, and thereby to cut off the right of appeal.
    3. Election of remedies — effect.—Where a party has two remedies, one limited, the other general in scope, he should, in the first instance, adopt that remedy which will give him complete relief; otherwise he is bound by his election to pursue the limited remedy.
    Appeal from Greene Oironit Court; R. H. Dudley, Judge;
    affirmed.

      Huddleston, Fuhr & Futrell, for petitioner.
    The judgment is void, as the circuit court, notwithstanding the waiver of the filing of the mandate, did not acquire jurisdiction to retry the cause. Where a judgment is reversed, the circuit court proceeds to try the case again until the mandate is filed. 10 Ark. 454. Consent can not confer jurisdiction. The certiorari should be quashed. The rule in 10 Ark. 454 has been often followed. 79 Ark. 185; 93 Id. 168; 38 S. E. 575.

      Bloch & Kirsch, for respondents.
    No question as to the mandate being filed was raised. The case was reversed and remanded.
    The filing of the mandate was not necessary for jurisdiction, if the parties voluntarily appear at the trial. Their appearance is a waiver. 4 C. J. 1208; 1 Col. 491; 35 Conn. 97; 50 la, 139; 135 Pa. 176; 15 111. App. 520; 63 Neb. 34; 16 S. C. 621. Where both parties go to trial after remand of a cause without raising the issue of the filing, of the mandate, the trial is conclusive. The certiorari should be quashed and the judgment, affirmed.
   McCulloch, C. J.

Appellants were the plaintiffs below in an action against appellees to recover damages alleged to have resulted from furnishing false samples of baled cotton. The trial of the cause resulted in a verdict and judgment against appellants who prosecuted an appeal to this court. This court reversed, the judgment of the circuit court and remanded the cause for a new trial. The judgment of reversal was rendered on April 12, 1920, and on October 11, 1920, the parties waived the issuance and filing of the mandate of this court and proceeded to a retrial of the cause in the circuit court. The second trial resulted in a judgment against appellants and' they now attempt to bring the record of the last proceedings before us by certiorari to quash the judgment.

The contention is that the judgment is void for the reason that the circuit court, notwithstanding the waiver of the filing of the mandate, could not and did not acquire jurisdiction to retry the cause. They rely in this contention on decisions of this court holding that on the reversal of a judgment the lower court acquires jurisdiction by the filing of the mandate in that court. Lafferty v. Rutherford, 10 Ark. 454; Hollingsworth v. McAndrews, 79 Ark. 185; Bowman v. State, 93 Ark. 168. In neither of those cases did the question arise as to the effect- of an express waiver of the filing of the mandate. It is undoubtedly true that a trial court loses jurisdiction when an appeal is taken from its judgment, and it reacquires jurisdiction only on the. reversal of the judgment by the appellate court and the filing of a mandate of reversal; but the written mandate is merely the evidence of the action of the appellate court, and this may be waived by the parties themselves. This is not a case of an attempt to confer jurisdiction by consent, but is merely a waiver of the formal evidence of the jurisdictional fact. The waiver itself presupposes that the Supreme Court had entered the judgment of reversal and ordered a remand of the cause for further proceedings. Therefore, the parties had the power to waive the written evidence of those proceedings.

The writ of certiorari is therefore quashed and the judgment of the circuit court affirmed.

OPINION ON MOTION TO MODIFY.

McCulloch, C. J. We are asked to modify the judgment of this court by eliminating the affirmance of the judgment of the circuit court, leaving in force only that part of our judgment which quashes the writ of certiorari, so that appellants will be left free to prosecute an appeal from the judgment of the circuit court. They say that there are errors in the record of the trial below which will be brought before us for review in a bill of exceptions if they are allowed to prosecute an appeal.

It has always been the practice in this court where the record of the trial court is brought before us on certiorari which questions only the jurisdiction .of that court, either to quash the judgment if it appears that the court had no jurisdiction, or to affirm it if the court had jurisdiction. Auditor v. Davies, 2 Ark. 494; Pulaski County v. Irvin, 4 Ark. 473; Jefferson County v. Hudson, 22 Ark. 595; Baxter v. Brooks, 29 Ark. 173; St. L., I. M. & S. Ry. Co. v. Barnes, 35 Ark. 95. Such is the universal practice in other courts of the country, and it is approved by the text-writers on the subject. Harris on Certiorari, § 38; 11 C. J. 209.

The rule stated in the encyclopedia above cited, with numerous authorities to support it, is as follows: “Unless otherwise provided, the judgment should be that the proceedings below be quashed, or that they be affirmed. ’ ’ We do not (find in any of the authorities, either among the adjudged cases or the text-writers, where the reasons are stated for the adoption of this practice of affirming a judgment brought up on certiorari, where it is found that it was rendered within the jurisdectional powers of the court. But there can be but one reason, and it is this: Certiorari can not ordinarily he used as a substitute fox appeal, but the aggrieved party has the election to test the validity of the judgment on its face, either by appeal or by certiorari; land if he adopts the latter remedy, he can not afterward resort to the former, for it is the duty of an appellate court, if it is found that a judgment is not void, to affirm it, which cuts off any further review by appeal. Remedy by certiorari is not one which may be had as of right, but it is only at the discretion of the court, and it would be the duty of the court to refuse that remedy if the aggrieved party could afterward, prosecute an appeal and had that remedy in contemplation.

The question falls within the general doctrine of election of remedies, and it is the duty of the party, where he has two remedies, one of which is limited in its scope and the other is general in its scope, to adopt, in the first instance, the remedy which will give- complete relief; otherwise he is bound by his election .to pursue the limited remedy.

The motion to modify is therefore denied.


author: Wood, J. McCulloch, C. J.,

text:
    Brown v. Waterworks Improvement District No. 1, of Fort Smith.
    Opinion delivered March 7, 1921.
    Waters and watercourses — authority op waterworks district to MORTGAGE plant. — Under Special and Private Acts 1911, No. 158, providing, in § 1, that the Waterworks Improvement District No. 1 of Fort Smith is authorized to take title to the entire waterworks plant of the Municipal Waterworks Company, and to mortgage the same, and in § 2, that the city of Fort Smith was authorized to use the income for the purpose of paying principal and interest on purchase-money bonds, the plant, though mortgaged for the purchase price, may also be mortgaged to raise funds for its maintenance.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourlcmd, Chancellor;
    affirmed.

      Daniel Eon, for appellants.
    There is no law .or statute in this State that authorizes Waterworks Improvement District No. 1 to place any incumbrance on the waterworks plant without legislative authority, and the mortgage was in violation of article 19, § 27, Constitution, and void, and the maintenance and upkeep of the plant must be performed by the city of Fort Smith, which is operating the plant, under Kirby’s Digest, § 5675; Act 158, Acts 1911. The statutes only provide for one assessment, except that § 5716, Kirby’s Digest, provides that, if the first assessment is insufficient to complete the improvement, the board shall report the deficiency to the city council and it shall enter an assessment for the sum sufficient to complete the improvement. See, also, Kirby’s Digest, §§ 5720-1, 5664. See 109 Ark. 99; 50 Id. 116; 112 Id. 259. Defendants were without power to execute the mortgage, and the court erred in refusing the relief prayed by plaintiffs.
    The district was without authority to make the repairs or borrow the money.

      Dailey & Woods, of counsel for appellants.

      A. A. McDonald and J. B. McDonough, for appellees.
    1. The Waterworks District of Fort Smith, under the facts, stands in a class of its own. It has power to maintain the works and the power to mortgage, The money to make repairs and replacements was used to pay bonds and interest, and, under the act, one exercise of the power to borrow money did not exhaust the power. 44 Fed. 224; 86 Iowa 1. Act 15i8 gives the power to borrow money, and it did not'restrict the district to a single mortgage. This case falls within the rule. 217 S. W. 795.
    2. Even if the district is without power to “maintain” the system of waterworks, nevertheless, under the law and the facts, it has the power to mortgage the plant as security to repay the money, thus enabling the city to maintain the system. Kirby’s Digest, ■§ 5675; act 158, Acts 1911; 117 Ark. 93. See, also, 70 N. J. L. 98; 170 Ind. 113; 89 N. J. L. 418.
    3. The borrowing of $200,000 by the Waterworks Improvement District No. 1 did not call for or require any additional assessment against the property in the district.
    4. The improvement district has ample power under the law to borrow the money and secure its repayment by the execution of the mortgage. From the undisputed facts and what has been stated before, it is clear there is no violation of article 19, § 27, of the Constitution, and the board has power to execute a second mortgage. 109 Ark. 90; 50 Id. 116; Acts 1911, p. 415; 160 Cal. 30 ; 161 Pac. 722; 71 S. E. 654; 88 la. 154. Under act 158, Acts 1911, and also prior acts, the district had power to mortgage the water system to secure money to build and maintain the system.
    5. The power of Waterworks Improvement District No. 1 to mortgage the water system is not taken away, under the facts of this case, by Kirby’s Digest, § 5675.
    6. There is no showing in the record that the improvements contemplated are anything other than a part of the original plans. 218 S. W. 381, did not decide the questions raised here)
    7. The district was organized to acquire and maintain. 118 111. 446;.151 111. 634; 140 Mass. 329; 16 Okla. 436; 101 S. W. 414; 133 S. W. 953; 170 U. S. 744.
    8. We also rely on the doctrine of estoppel. 117 Ark. 93; 131 Id. 77; 150 Id. 116.
    9. The city is not borrowing money, and is not issuing interest-bearing evidences of indebtedness.
   Wood, J.

The appellant instituted this action against the Waterworks Improvement District No. 1 of the city of Fort Smith, Arkansas (hereafter called district) and the commissioners of the city of Fort Smith, who were also ex-officio commissioners of the district. He alleged that the district was duly established by ordinance of the city council of the city of Fort Smith, February 4, 1907; that a board of improvement and a board of assessors for the district were duly elected; that on January 6, 1911, an assessment was duly made on the real estate in the district; that on April 3, 1911, an ordinance was duly passed transferring to the district an option, which was then held by the city of Fort Smith, to purchase a waterworks system of the Municipal Waterworks Company (hereafter 'called company), then owning and operating a waterworks plant in the city of Fort Smith; that by special act No. 158 of the General Assembly of the State, approved March 30, 1911, the district purchased and took title to the waterworks plant formerly owned by the company, and to secure money necessary to pay the company for the plant and to make further improvements contemplated, the district mortgaged the plant to the Mercantile Trust Company for $750,000, of which amount still remains unpaid the sum of $664,000; that the city, in the transfer of its option to the district, reserved the right and has the right by law, and is now operating and maintaining the waterworks system, and under act No. 158 of the Acts of 1911, was using the revenues from the waterworks to pay the debt to the Mercantile Trust Company in addition to the use authorized by section 5675 of Kirby’s Digest; that the commissioners of the district, pursuant to a resolution passed by them and an ordinance of the city of Fort Smith, were about to issue bonds in the sum of $200,000 and to mortgage the waterworks plant to secure said sum in order to make certain improvements, reconstructions and enlargements; that these improvements were no part of the original plans of the district and should be made and maintained by the city alone; that assessments for these improvements were not authorized by law nor by consent of the majority of the property owners in the district and were, therefore, in violation of articlé 19, section 27, of the Constitution. The appellant alleged that he was a landowner and taxpayer in the district, and he instituted the action in behalf of himself and all other interested property owners of the district, and he prayed that the appellees be enjoined from creating a debt against the district and issuing bonds and mortgaging the property of the district to secure the payment of the same, and for all proper relief. The resolution of the commissioners of the district setting forth the necessity for the improvements and the issuance of bonds, and the ordinance of the city authorizing the district to issue bonds in the sum of $200,000 to raise money for the improvements set forth in the resolution of the commissioners of the district and to mortgage the property of the district to secure the payment of the same, were made exhibits to the complaint.

The appellees, the district, and its commissioners filed separate answers in which they denied that they are intending to enlarge the waterworks plant, but allege that they intend only to maintain it up to the standard of efficiency required by the obligations of the'-mortgage and pledge to the Mercantile Trust Company. They deny that the improvements contemplated in the organization of the original district were all completed and allege that the improvements now -contemplated are a necessary part of the original plant, although to some -extent they increase the original plant. 'They deny that it is the duty of the city to make the improvements now contemplated. They deny that the borrowing of the money and the issuance of a mortgage and pledge to secure the payment of the same will incumber the property of the district illegally and unlawfully, and allege that the borrowing of the money will enable the district to fulfill its obligations to the first bondholders and keep the water plant in proper condition -and up to the standard of efficiency required. They set up that, without objection. of any property owner in the district, the revenues of the district had been used in part payment of the purchase money of the waterworks plant; that no installments of assessments had been made since installment No. 1; that during the time that these installments were not made, the city had collected $397,000, net revenues, from the waterworks system, which, with the consent of all property owners of the district, had been used for the purpose of paying the principal and interest on the purchase money bonds. It was alleged that in the mortgage and pledge of the district to the Mercantile Trust Company for the purchase money, the district obligated itself to maintain the waterworks system in good condition. It was denied that the city, under the transfer of title of the waterworks system to the district, reserved the right to use the income and revenues of the waterworks system for the payment of the purchase money, and denied that the district or the city had any right or power to waive the collection of the assessments, and alleged that the $397,000, revenues from the waterworks system, should have been applied to the making of improvements necessary to keep the plant in good condition and repair; that, as a result of the payment of this sum on the purchase money bonds instead of necessary repairs, it was now necessary for the city to expend approximately $200,000 for that purpose; that the city had no title to the waterworks plant, and, in order to raise the money to make these necessary improvements, the district would have to mortgage its plant, as the city had no title to the property.

It is averred in the answers that under act No. 158 the district has power to borrow money to make these improvements which are indispensable to the welfare of the city. It is also alleged that the city, during the time it had operated the waterworks system, had not paid the district any sum for hydrant rentals, and that such rentals exceeded the sum of $110,000. It is also alleged that the property owners in the district were estopped by permitting the installment of assessments to go uncollected and by allowing the city to use the revenues from the waterworks plant to pay off the purchase money bonds instead of making the necessary improvements to the waterworks system, thereby endangering the life and health of the citizens of Fort Smith as well as the property in the city.

The city filed a separate answer, and adopted as" far as applicable the answer of the district, and alleged that the title to the waterworks plant was in the district; that it had power to mortgage the plant and consented that it do so in order to raise the necessary funds to make the repairs and improvements set out in the answer of the district. It also alleged that it had no funds with which to make these improvements and repairs, and that its revenues from the waterworks system had been used by the city to pay the purchase money bonds ánd interest. The proceedings of the city council showing the creation of the district were set forth in the answer.

The cause was heard upon the pleadings and the exhibits thereto and the documentary evidence and the agreed statement of counsel. All the proceedings of the city council creating the improvement district were in evidence, showing that it was established for the purpose of constructing or acquiring and maintaining a waterworks plant in the city of Fort Smith. It is shown that the estimated cost of the improvement was $1,200,000; that there had been an assessment of benefits of $1,255,-103. It was also shown that the city transferred its option to purchase the waterworks system to the district under authority of act 158 of the Acts of 1911. It was prescribed in the ordinance making the transfer that the plant was to be operated by the city as provided by section 5675 of Kirby’s Digest. Act 158 referred to was introduced in evidence. The mortgage of the waterworks plant by the district to the Mercantile Trust Company for the sum of $750,000 was also introduced in evidence. This mortgage shows a loan of $750,000 to the' district and recites the issuance of 750 bonds by the district in the denomination of $1,000 each, bearing interest at the rate of 7 per cent, per annum. There is a recital in each of these bonds as follows: “This bond is issued for the purpose of acquiring and extending a waterworks system for supplying said city and its inhabitants with water for public and private use.” One of the provisions of the mortgage was that the district was required to keep insurance on the property and keep the premises in a good state of repair, and another provision pledged to the Mercantile Trust Company “all rents, issues and profits of the property acquired by or from the operation of its system of waterworks, and all uncollected assessments that had been levied or that might thereafter be levied on the real property of the district.”

The resolution of the district in its preamble set out at length the history of the waterworks plant at Fort Smith and the proceedings under which and the purposes for which it was acquired by the district. It is shown that it was necessary to make extensive repairs, replacements and improvements in order to keep the waterworks system efficient; that the district and the city had determined that these improvements should be made according to the report of a consulting engineer, which states 'specifically and in detail the various improvements, machinery and replacements that were necessary to be made, together with an itemized statement of the cost of same. His report, among other things, states that the new water supply works were completed and placed in operation in 1913 and have been in continuous use without additions or extensions to the present time. It shows that neither the district nor the city had any funds with which to make the improvements.

The preamble to the ordinance of the city of Fort Smith, passed December 4, 1920, sets forth practically the same facts as were set forth in the preamble to the resolution of the district, and the ordinance authorized the district to issue bonds in the sum of $200,000, which bonds were to be a lien upon the entire waterworks system of the district and the income derived from the operation of the plant subject to the first mortgage of the Mercantile Trust Company for the balance due, which was $664,000; and also authorized the district to execute a mortgage on its waterworks plant to secure the payment of the bonds. The ordinance also binds the city for the purpose of securing the loans and to make the payments in the amounts and at the dates fixed for such payments, and authorized its officers to execute all obligations that might be necessary to carry out the provisions of the ordinance. There was introduced in evidence a resolution adopted by the commissioners of the district to borrow the sum of $200,000 at such rate of inter est, and upon such terms as may be"provided by law, fixing the payments and authorizing the issuance of interest-bearing bonds to cover the amount of the loan,' and agreeing to mortgage the waterworks plant and all uncollected assessments on the real property in the district for the payment of the same, subject to the first mortgage of the Mercantile Trust Company. There was a stipulation of counsel in evidence to the effect that there was no express consent of the property owners in the district to the noncollection of assessments, and stating that every property owner knew that the assessments were not being collected and knew that the net revenues of the waterworks plant were being applied to the payment of the first mortgage bonds and interest; that the collector of the district, during each of the years, in keeping his books wrote in the books opposite each tract or parcel of lands the words, “Paid by the city;” but the city, as a matter of fact, never paid any of -the assessments, nor were they collected by the district, and the collector had no authority either from the district or the city to make the above entry on his books. The stipulation showed that two old boilers of the waterworks system were to be kept and held in reserve for use in case of an emergency which might arise at any time.

The court found the issues of fact and law' in favor of the appellees and rendered a decree in their favor dismissing the complaint for want of equity and for costs, from which decree is this appeal.

As shown by the petitions of the original property owners, the district was created for the construction, acquisition, operation and maintenance of a waterworks system for the city of Fort Smith. The real purpose of the district was, not the building of a waterworks' system, but to acquire from a private ¡owner a waterworks system already constructed and to extend, operate and maintain the same for the use and benefit of the inhabitants of the city of Fort Smith.

Section 5739, Crawford & Moses’ Digest, provides that, “in case of the construction of waterworks * * * by any improvement district or districts, the city or town council, after such works are constructed, shall have full power and authority to operate and maintain the same, instead of the improvement district commissioners.” Act of April 12, 1893. Appellant contends that, under the above section, after the waterworks system was acquired by the district the full power to operate and maintain the same was in the city, and that the district therefore had no power to mortgage the waterworks plant to make repairs, replacements, etc., such as are contemplated by the proceedings which appellant here seeks to enjoin. Appellant urges that there is no authority in the Constitution or statutes for mortgaging the waterworks plant, and to sustain his contention he relies upon the cases of Rector v. Board of Improvement, 50 Ark. 116; Improvement Dist. No. 1 of Wynne v. Brown, 86 Ark. 61; Sembler v. Water & Light Improvement Dist. No. 2, 109 Ark. 90; Augusta v. Smith, 117 Ark. 93; Road Improvement Dist. v. Toler, 130 Ark. local citation, 416; Arkansas Light & Power Co. v. Paragould, 146 Ark. 1; Easley v. Patterson, 142 Ark. 52; Commrs. of Broadway-Main Street Bridge Dist v. Quapaw Club, 145 Ark. 279.

"Without reviewing these cases seriatim, it suffices to say we do not consider any of them applicable to the facts of this record for the reason that section 5739 of the general statutes, which controls generally as to operation and maintenance of improvement districts must be read in connection with act 158 of the Special Acts of 1911, under which this district acquired the waterworks plant from the company which the city of Fort Smith is to operate and maintain. Section 1 of that act provides that “the Waterworks Improvement District No. 1 of the city of Fort Smith, Arkansas, is authorized to take title to the entire waterworks plant of the Municipal Waterworks Company under the decree of the United States Circuit Court for the Western District of Arkansas, and to mortgage the same.” Section 2 provides that the “city of Fort Smith, Arkansas, is authorized to use the income arising from said waterworks for the purpose of paying the principal and interest on the bonds issued by the Waterworks Improvement District No. 1 of said city to raise funds for the purchase of said plant in addition to the use authorized by section 5675 of Kirby’s Digest. ’ ’

This act must be construed in the light of the history of the creation of the district and the purpose for which it was established as shown by the pleadings, the resolutions of the district, the ordinance of the city, and the stipulation of counsel. When these are all considered, the uncontroverted facts clearly show that this district is in a class to itself, and clearly differentiate it from the districts in the cases supra upon which counsel for appellant relies. It will be observed that the first section of the act authorized the district to take title to the waterworks plant and to mortgage the same. The contention of learned counsel for appellant that the only purpose of the power to mortgage given under the act was to secure the purchase price is plausible. Undoubtedly, that was one purpose, but is it the only purpose? The act does not say so. No such restriction can be found in the language of the act. On the contrary, the power to mortgage is without any such limitation, and as to whether or not the Legislature intended to place such a limitation upon the power to mortgage must be-gathered from a consideration, of the particular words under review, when taken in connection with the immediate context and the language of the entire act, keeping in mind the subject-matter of the legislation and the end to be accomplished thereby. See Board of Improvement Dist. No. 60 v. Cotter, 71 Ark. 556; State v. Handlin, 100 Ark. 175; McDaniel v. Herrn, 120 Ark. 288, and other cases collated in 4 Crawford’s Digest, p. 4677, § 54.

Special acts are usually passed to effectuate the purpose of those who bring to the attention of the lawmakers the objects to be accomplished by the special legislation. The mortgage and bonds that were issued soon after the passage of act 158, supra, show by recitals contained therein that the purpose to be subserved in the passage of act 158 was not merely the purchase of the waterworks system, but for the purpose of extending same. It is so nominated in the mortgage and bond, which would reasonably include the improvements that are specified in the proceedings here sought to be enjoined.

Now, before act 158, supra, was passed, the Legislature must have ascertained the purpose for which the district was created as shown by the proceedings by which it was established. The Legislature, therefore, knew that the declared object of the property owners and the city authorities was to have the’ district created and organized for the purpose of acquiring the water system from the private company and having the same extended, operated and maintained for the benefit of the inhabitants of the city of Fort Smith. Such being the purpose of the creation of the district, it occurs to us that the Legislature intended by the broad language, ‘£ to mortgage the same, ’ ’ as used in the first section, to give the district the power to mortgage the waterworks plant, not only for the purpose of raising the purchase money on the same, but also to enable it to raise money to aid the city in its maintenance. Such power was certainly germane to the purpose for which the .district was created, and was in no manner in conflict with the power of operation and maintenance to be exercised by the city under section 5739 of Crawford & Moses ’ Digest. As we have seen, the power to mortgage was without limitation, and the exercise of that power for the purpose of securing the purchase money of the plant in the first instance did not preclude its exercise also for the purpose of aiding the city in maintaining the waterworks system according to the proper standard of efficiency. See Ames v. Holderbaum, 44 Fed. 224; Iowa Loan & Trust Co. v. Holderbaum, 86 Ia. 1.

The money to be borrowed by the $200,000 bond issue in controversy does not involve any additional assessment against the owners of real property in the district, but these bonds are to be redeemed by revenue derived from the operation of the water system. The property owners of the district, as we have seen, petitioned for, and had created, the district to acquire and maintain a waterworks system for the city of Fort Smith. Act 158, supra, authorized the district to mortgage, and the mortgage in controversy is to aid the city to maintain, and the bonds are to be redeemed out of the net revenue of the waterworks system. Therefore, we conclude that the proceedings of the appellees, which appellant here seeks to enjoin, were not in violation of art. 19, § 27, of the Constitution, nor any statute of the State, and are expressly authorized by act 158, supra. The decree of the chancery court so holding is in all things correct, and it is therefore affirmed.

McCulloch, C. J.,

(dissenting). The point of difference of my views from the conclusion of the majority is in regard to the interpretation of act No. 158 óf the General Assembly of 1911, authorizing the improvement district to purchase the waterworks plant from the Municipal Waterworks Company. The district was organized under the general statutes for the construction of local improvements and the special statute was enacted to authorize the district to purchase the plant, instead of constructing one anew. The statute also contained authority to mortgage the plant, the clear implication being, I think, to mortgage for the purpose of securing the purchase price or for borrowing money to pay the purchase price. Under the provisions of the general statutes (Crawford & Moses’ Digest, § 5739), the waterworks, when purchased by the district, passed to the city to operate and maintain. Improvement Dist. No. 1 of Wynne v. Brown, 86 Ark. 61. This was clearly the intention of the lawmakers in enacting act No. 158, for section 2 of the act expressly refers to the general statute. Having in mind that the plant would pass to the city for maintenance and operation, the lawmakers provided in section 2 of act No. 158 that the city could apply the revenues arising from the operation of the plant, not only to the payment of expenses of operation and maintenance, but also “for the purpose of paying the principal and interest on the bonds issued by the watérworks improvement district.”

The general statute cited above cast upon municipalities the duty and burden of maintaining and operating water and light plants through the agency of improvement districts, and the special statute referred to (act No. 158) clearly recognized the application of that statute to the purchase of the waterworks plant in Fort Smith.

Since it is made the statutory duty of the city to maintain the waterworks and that duty is distinctly recognized in act No. 158, then it is not reasonable to assume that the Legislature meant to authorize the improvement district to mortgage the plant for maintenance purposes. Construing act No. 158 in connection with the general statute (Crawford & Moses’ Digest, § 5739), I think it clearly confers authority to mortgage the plant only for the purchase price or for borrowed money to pay the purchase price, and it does not confer continuing power to mortgage for maintenance or extension of the plant. When a water or light plant is constructed and put into operation by an improvement district, control over the plant passes to the municipality, and the only remaining function for the district to perform is to complete the payment for the improvement — to enforce assessments for that purpose and pay off the indebtedness.


author: Hart, J.

text:
    Payne v. Stockton.
    Opinion delivered March 7, 1921.
    1. Appearance — what constitutes. — Any action on the part of a defendant, except to object to the jurisdiction, which recognizes the case as in court, constitutes a general appearance.
    2. Appearance — filing motion to strike. — When defendants filed a motion to strike certain paragraphs from a complaint, and appeared at the hearing of such motion without objecting to the court’s jurisdiction, this constituted a general appearance on their part.
    3. Railroads — substitution of federal agent for director general. — Where a suit was improperly brought against the Director General of Railroads, instead of against the agent of the United States, as required by the transportation act of February 28, 1920, and the attorneys representing the United States asked that the agent be substituted for the Director General, which was done, it was unnecessary that service should be had upon such agent.
    4. Railroads — construction of federal transportation act. — The Federal transportation act of February 28, 1920, was not intended to destroy vested rights of action, but to' provide for the designation of an agent by the President who might be served as agent of the United States and defend suits which had arisen out of the operation of the raliroads by the President.
    5. Railroads — negligence in maintaining crossings. — Under Crawford & Moses’ Digest, § 8483, requiring railroads to construct and maintain crossings at public highways, a railroad company is liable for injuries to persons or property caused by its negligence in constructing crossings or bridges where the . railroad crosses a public highway in this State.
    6. Railroads — negligence in maintaining bridge over road.— Where the approach to a highway bridge constructed over its track by a railroad company, under Crawford & Moses’ Digest, § 8483, became out of repair, so that when the driver of a team drove near the embankment, the dirt caved away, allowing the wagon to fall into the ditch and injuring a horse, the company was negligent in maintaining the bridge.

      7. Railroads — approaches to bridge as part op crossing. — Approaches or embankments reasonably necessary to enable crossings or bridges to be used are regarded as a part of the crossings, within Crawford & Moses’ Digest, § 8483.
    8. 'Trial — abstract instruction. — It was hot error to refuse an instruction not based on the evidence.
    Appeal from Miller Circuit Court; G. R. Haynie, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    On May 7, 1920, appellee sued appellants to recover damages for injuries alleged to have been sustained by one of his horses in becoming entangled in the approach to a bridge across a railroad track operated by appellants in Miller County, Arkansas. The facts are as follows:
    Appellants operated a railroad in Miller County, Arkansas, which intersected a public road running north and south known as the Lynn Perry Road. The railroad company, under the statute, constructed across its line of road a wooden bridge seventy-two feet long, being thirty-six feet on each side from the center of the bridge. It also built a fence across the bridge, which was extended along the approaches to the bridge. The fence extended from the wooden part of the bridge ninety-three feet on the right-hand side and seventy-eight feet on the left. The approach on the south side of the bridge was in bad condition. On the right-hand side of the embankment the bulkhead, which had been constructed for the purpose of holding the dirt that made the approach to the bridge had given away and the banisters to the fence, or railing down the approach, leaned out at an angle of forty-five degrees. There was a ditch or gully on the right-hand side with a hole under the bottom rail of the fence near the lower side of the approach.
    On December 3, 1919, two of the minor sons of appellee had been to town with a wagon and team of their father’s. On their way home they started across the bridge, described above, with the wagon and team. They passed another wagon on top of the bridge and then saw another one near the bottom of the incline, or approach, waiting for them to pass. The driver of the wagon was twenty years old. He pulled his team to the right to pass the waiting wagon near the bottom of the incline. The dirt was soft and gave away so that the wagon slipped down from the incline into the ditch and pulled the horses over next to the fence. The driver tried to keep the horses out of the fence, but one of the horse’s front feet and two of his hind feet got entangled in the fence. The horse commenced to struggle to get out, but it took some time for him to do so. The boys unhitched the horse from the wagon to extricate him, and after they had pushed the wagon by hand down the approach to the bridge into the public road, they again hitched the horse to the wagon and drove him home, a distance of nine miles. They had a light load of brick on the wagon. "When they got home that night, the boys turned the horse out without saying anything to their father about the accident. When the father learned of the accident on the next day, he commenced to hunt for his horse and found him lying dead two or three days after the accident happened. A veterinary surgeon cut open the horse and from his testimony it is inferable that the death was caused by the injuries received by him in trying to extricate himself from the fence, as stated above.
    Appellee introduced other evidence besides that of his sons to prove that the railroad was negligent in keeping the bridge and the approaches thereto in repair where the horse was injured, and also proved the value of the horse at the time he was injured.
    Evidence was adduced by the railroad company tending to show that it had not been negligent in constructing or maintaining the crossing. Other evidence will be stated or referred to in the opinion.
    The jury returned a verdict for appellee for the value of the horse, and the case is here on appeal.

      King, Mahaffey S Wheeler, for appellants.
    1. It was error to substitute John Barton Payne, Director General, as defendant without service upon him. This suit was not pending at the time the transportation act of 1920 took effect, and no authority was given by that act, or any other, to substitute Payne for Hines as Director General without service, and the judgment was void for want of notice. Kirby & Castle’s Dig., art. 5153; 49 Ark. 397; 5 S. W. 704; 65 Id. 108 ; 74 Id. 13; 76 Id. 555; 87 Id. 621; 69 Ark. 587; 71 Id. 565; 75 Id. 603. Payne should have been allowed full twenty days to answer. 79 Ark. 252; 96 S. W. 374; 140 Id. 996; 101 Ark. 22; 125 Ark. 553; 188 S. W. 1178.
    2. The judgment against the receivers was without proof of their appointment. 186 S. "W. 383; 104 U. S. (Law. Ed.) 126, 672.
    3. The receivers were not liable. 72 Ark. 250; 79 S. W. 773; 26 L. R. A. (N. S.) 710; 5 Thompson on Corp., p. 5667, § 7185; 203 S. W. 1125; Elliott on Railroads (2 ed.), § 581; 10 S. W. 711.
    4. The property was in the hands of the United States government and in the hands of the receivers. 267 Fed. 105; 267 Id. 171; 221 S. W. 459. The judgment against the Texas & Pacific Railway Company is in violation of § 1, art. 14, Const. U. S.
    5. Instruction No. 1 for plaintiff is error. , The bridge was not on the company’s right-of-way, but outside the right-of-way and the duty to keep in repair was on the county authorities. 149 Ky. 459; 149 S. W. 898; 183 S. W. 915; 93 N: E. 307; 161 N. W. 506; 109 N. W. 238; 99 Minn. 280.
    6. It was error to refuse instruction No. 1 for defendant, also No. 6 for defendants. 79 Ark. 484 ; 96 S. W. 168; 101 Ark. 90; 141 S. W. 492; 141 S. W. 440; 29 Cyc. 532. Also error to refuse No. 8 for defendant, as it was supported by the evidence.

      Arnold & Arnold and Miss Lois Dale, for appellee.
    1. John Barton Payne succeeded Hines as Director General and voluntarily appeared; no service was necessary.
    2. Railway companies are liable, even if the United States was in charge and the railway was in the hands of receivers. 146 Ark. 170, 232.
    3. Instruction No. 1 was correct. 183 S. W. 915; 33 Cyc. 273-5; C. & M. .Digest, § 8483; 118 Ark. 76; 5 Cyc. 1084; 4 C. J. 1454, note 60, 7 (c) and note 8 (a); 138 Mass. 454-5.
    There is no error in the instructions given or refused, and the verdict is sustained by the evidence.
   Hart, J.

(after stating the facts). .Appellee first sued Walker D. Hines, as Director General of Railroads and Special Agent Texas & Pacific Railway Company, and J. L. Lancaster, and Chas. T. Wallace, receivers of and for the Texas & Pacific Railway, defendants.

The suit was filed and summons issued on May 7, 1920. In open court on June 7,1920, the defendants just named, through their attorneys, KJLng & Mahaffey, filed a motion to strike out certain paragraphs of the complaint. On the 10th day of September, 1920, the record shows that this motion was sustained in part and overruled in part. The judgment recites, that both parties appeared by their attorneys on the hearing of the motion to strike out certain paragraphs of the plaintiff’s complaint. Subsequently the same defendants filed an answer and a demurrer to the complaint. They also allege that Congress passed what is known as the transportation act, which was approved by the President on February 28, 1920; that, under the provisions of this act, suits arising out of the management, control or operation of railroads in the United States should be prosecuted against an agent to be designated and appointed by the President; that the President had appointed John Barton Payne as such agent; that the accident which is the basis of this lawsuit occurred about the 1st of December, 1919.

The defendant suggested that, if the plaintiff desires further to prosecute his action, he must cause John Barton Payne, Agent, ;as aforesaid, to be made a party defendant. The prayer is that the action be no longer maintained against Walker D. Hines, as Director General of Railroads.

Then the plaintiff .asked that John Barton Payne be substituted as agent for the United States in the place of Walker D. Hines, which was accordingly done.

John Barton Payne, Agent, by his attorneys, King & Makaffey, filed a plea to the jurisdiction of the court on the ground that he had not been served with process. His plea was overruled, and he thereupon adopted -the answer of Walker D. Hines, Director General, but preserved his protest to the jurisdiction of the court.

This court has adopted the rule that any action on the part of a defendant, except to .object to the jurisdiction which recognizes the case as in court, will amount to a general appearance. Foohs v. Bilby, 95 Ark. 302; Greer v. Newbill, 89 Ark. 509, and Sager v. Jung & Sons Co., 143 Ark. 506.

Hines, as Director General, and Lancaster and Wallace as receivers of the railway company, filed a motion to strike out certain paragraphs .of the complaint- and appeared, by their attorneys, at the hearing thereof without making any objection to the jurisdiction of the court. Thus they took part in the proceedings in the case, and this constituted a general appearance on their part.

Subsequently their attorneys called the- court’s attention to the fact that the transportation act, approved February 28,1920, provided that actions at law based on causes of action arising out of the possession, use, or operation by the President of the railroad under the provisions of the Federal control act of such character as prior to Federal control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, and stated that John Barton Payne had been appointed as such agent. Therefore, they ask that he be substituted in place of Walker D. Hines, Director General, as defendant. This was done without requiring new service on John Barton Payne. The same attorneys appeared for him, and moved to dismiss the cause of action for want of service on him.

We do not think, however, that any new service was necessary. The object of the suit was to bring an action against the United States. The United States employed the same attorneys to act for John Barton Payne as had acted for Walker D. Hines as Director General. When these attorneys entered the appearance of Walker D. Hines, as Director General of Railroads and Special Agent, they entered the appearance of the United States to the suit, and the substitution of John Barton Payne, Agent, instead of Walker D. Hines, Director General of Railroads, was merely to correct an error in the name of the representative of the United States.

King & Mahaffey were the attorneys for the agent of the United States, and had authority to 'enter the appearance of the agent designated by the President. At least their authority to enter the appearance of such agent is not questioned. Therefore, we are of the opinion that, when they filed the motion to strike out certain paragraphs .of the complaint and appeared at the hearing thereof, they entered the appearance of the United States agent who was authorized to defend the action, and that the substitution of Payne for Hines was merely to correct a mistake in the name of said agent.

The railroad had been turned over to the receivers at the time this action was brought. As we have already seen, tliey entered a general appearance to the action when they joined in the motion to strike out certain paragraphs of the complaint and appeared by their attorney at the hearing thereof. This court has held that under the Federal control act of March 21, 1918, authorizing actions against the “carriers,” an action may be properly brought against the railroad itself as well as the Director G-eneral of Railroads. Hines v. Mauldin, 146 Ark. 170, and K. C. S. Ry. Co. v. Rogers, 146 Ark. 232.

It is clear that the transportation act of February 28, 1920, was not intended tb destroy vested rights of action, or to authorize the President or his agents to do so. The sole purpose of the act, as shown by its terms, was to provide for the designation of an agent by the President who might be served as an agent of the United States and defend suits which had arisen out of the operation of the railroads by the President. It did not purport to destroy any right of action which the claimants might have had before the transportation act was passed.

The principal question in the case is as to the liability of the railroad company. Section 8483 of Crawford & Moses’ Digest provides for constructing and maintaining railroad crossings across public roads in this State. It makes it the duty of the railroad company to construct such crossings in such way that the approaches to the roadbed on either side shall be made and kept at no greater elevation or depression than one perpendicular foot for every five feet of horizontal distance. The section further provides that such railroad may be crossed by a good and safe bridge to be built and maintained in good repair by the railroad company.

In construing this statute in St. Louis, I. M. & S. Ry. Co. v. Smith, 118 Ark. 72, the court held that it is the duty of every railroad company to properly construct and maintain crossings over all public highways on the line of its road in such a manner that the same shall be safe and convenient to travelers, so far as it can do so without interfering with the safe operation of the road.

The court also held that it was the duty of the railroad company to use ordinary care to keep public crossings over its tracks in a reasonably safe condition for persons traveling over them. Hence it may be said that in this State a railroad company is liable for injuries to persons or property caused by its negligence in constructing or maintaining crossings or bridges where the railroad crosses a public highway in this State.

The negligence of the railroad company in this respect was properly submitted to the jury by the instructions given by the court. At the crossing in question in this case, there was a wooden bridge seventy-two feet long over the tracks of the railroad company. A fence, or railing, was built along on top of the bridge on each side of it and extended down the approaches to the bridge. The fence on each side of. the approaches had a bulkhead to keep the dirt in the embankment from giving away. The embankment had got out of repair by caving so that the fence extended out at an angle of about forty-five degrees and there were holes along the embankment where the bulkhead had caved away. As the team was turned down the embankment or approach to the bridge the driver had to turn the horses to the right to pass another wagon. This brought the wagon near the edge of the embankment and dirt caved away allowing the wagon to slide down into the ditch. The wagon was partially loaded, and this caused the horses to be dragged down into the ditch, and the feet of one of them to become entangled in the fence. This caused the injuries to the horse from which it subsequently died.

As we have already seen,- it was the duty of the railroad company to construct the crossing and keep it in repair. The statute makes the duty a continuing one and thereby shows that protection to travelers and their property was the dominant idea of the Legislature in enacting the statute. Therefore, we think that the facts of the present case, as proved by the witnesses for appellee, warranted the jury in finding the railroad company guilty of negligence in maintaining the bridge and approaches thereto where the appellee’s horse was injured.

It is next insisted that appellee is not entitled to recover because it is claimed that the horse was injured outside of the right-of-way of the railroad company. The record shows that the fence from the bridge down the incline or approach to the bridge was on the right-of-way. The record shows that the wagon slipped and dragged the horses down so that one of them became entangled in the fence, and it is urged that this accident occurred beyond the southern boundary line of the right-of-way of the railroad company, and that therefore the railroad company is not liable to appellee.

The statute provides that the approaches to the bridges or crossings shall be kept at no greater elevation or depression than one perpendicular foot for every five feet of horizontal distance. Crossings are constructed for the purpose of enabling persons, horses and vehicles to cross the railway tracks, and approaches or embankments are necessary to enable the traveler to get on or off the crossings. Therefore, such approaches or embankments as are reasonably necessary to enable the crossings to be used are regarded as a part of the crossings. This view is necessary to enable the company to fulfill its obligations to the public, and is essential to the safety of persons and vehicles crossing the railroad tracks at such highway crossings. Elliott on Railroads, (2 ed.), vol. 3, sec. 1097, and 33 Cyc., pp. 273-75.

Finally, it is insisted that the judgment should be reversed because the court refused to give an instruction to the jury to the effect that the railroad company will not be liable if appellee knew that his horse had been injured and turned him out so that his death was caused by lack of due care or attention on his part. On this point, it is sufficient to say that there is no evidence upon which to predicate such an instruction.

The undisputed evidence shows that the boys turned the horse out without telling their father about his injury. The father was not told about the injury to the horse until late the next day. He at once began to hunt for the horse and found him lying dead. The evidence is undisputed on this point.

There is no. prejudicial error in the record, and the judgment will be affirmed.


text:
    Burns v. Williams.
    Opinion delivered March 7, 1921.
    1. Mortgages — mortgagee in possession — repairs.—A mortgagee in possession is entitled to reimbursement on foreclosure or redemption for repairs reasonable or necessary for the preservation and beneficial occupation of the property.
    2. Mortgages — right of mortgagee to reimbursement for repairs. —A mortgagee in possesion has no right to increase the burden of redeeming; and if he makes repairs which are not necessary to preserve the estate, he is not entitled to compensation for them, although they are of such a nature as to increase the rental value of the premises.
    3. Improvements — color of title. — A bond for title is not color of title on which to base a claim for improvements made by the occupant.
    4. Mortgages — mortgagee in possession — rents.—Where a mortgagee in possession without authority made permanent improvements, for which he is denied compensation, he should be charged with such sums as are a fair rent of the premises, without such improvements.
    Appeal from Union Chancery Court; J. M. Barker, Chancellor;
    modified and affirmed.

      Geo. M. LeCroy, for appellant.
    The master’s report is clearly against the clear preponderance ¡of the evidence, as the deed, though absolute in form, was in fact a mortgage, as the rents did not in fact pay the mortgage debt. No part of the mortgage debt has ever been paid and there is a large balance due Burns.

      J. B. Moore, for appellee.
    1. The testimony fails to show that appellant ever made or paid for any improvements or repairs on the land. The deed was a mortgage; this is conceded.

      2. The matter of balance due for supplies alleged to have been furnished for 1913 and 1914 was ¡finally disposed of by the court in its dismissal for want of equity and is not before the court now.
    The testimony discloses that John Daniels claims that he made all improvements without color and with knowledge of title that appellees executed the deed of conveyance as a mortgage to secure the repayment of $536.88 advanced as a loan, with notice that it was a mortgage. And he can not be heard to interpose any pleading against appellees for the value of improvements made by him ¡on said lands under such evidence. Kirby’s Digest, § 2754; 67 Ark. 184-8; 72 Id. 601; 53 Id. 545; 59 Id. 144; 97 Id. 397; 89 Id. 41; 93 Id. 93; 101 Id. 9; 128 Id. 15,16.
    The evidence offered was irrelevant and incompetent. The master’s finding and the decree are clearly supported by the evidence. °
   Hart, J.

Nelson Williams and Hester Williams, his wife, brought this suit in equity against W. A. Burns, Jr., to have a deed, absolute in form, executed by them to Bums, declared a mortgage, and for an accounting by Burns of the rents and profits derived from the land described in the complaint.

Bums defended on the ground that the instrument sued on was an absolute conveyance, and also claimed that, if it should be found by the court to have been intended as a mortgage, he had not received sufficient rents and profits to pay off the mortgage indebtedness.

The land in controversy comprised a farm of 118 acres in Union County, Arkansas. Nelson Williams and Hester Williams, his wife, executed a mortgage on the land in controversy to one Jameson to secure an indebtedness of $536. On the 26th day of November, 1912, they arranged with W. A. Bums, Jr., for a loan to pay off the mortgage indebtedness. They executed to Bums a deed absolute in form to the land in controversy, but they intended it as a mortgage to secure the money they borrowed from Burns, and Burns so understood the transaction. In the fall fo 1913 Williams delivered to Burns seven bales of cotton, and in 1914 delivered to him four bales of cotton. Williams had a merchandise account with Burns, and the cotton delivered to Burns was more than sufficient to pay off his merchandise account and the balance of the proceeds of the cotton was applied toward the payment of the mortgage indebtedness. In 1915 Burns took possession of the land in controversy and rented it to John Daniels, a son-in-law of Williams. In 1916 Burns executed to Daniels a bond for title, agreeing to convey to him said land upon the payment of the purchase price designated in the instrument. Daniels remained in possession of the land until the institution of this suit and is still in possession of it.

The case was heard on the 3d" day of December, 1919, and the chancellor held that the instrument sued for, although absolute in form, was intended by the parties to be a mortgage. The chancellor then appointed a master to state an account between the parties. The master reported that Burns was indebted to Williams in the sum of $484.13 for rents and profits derived from the land by him as mortgagee in possession. Burns made no objection to the finding of the chancery court that the deed, although absolute in form, was intended by the parties as a mortgage. He only prosecutes an appeal to reverse that part of the decree which holds him accountable to Williams for' the rents and profits of the land. Burns claims that the finding by the master, which was approved by the court, is erroneous, and that the fact is that the rents did not finish paying off the mortgage indebtedness.

According to the testimony of Williams in the fall of 1913, he delivered to Burns seven bales of cotton and three and one-half tons of cotton seed to be applied toward the payment of his supply account and the mortgage indebtedness. In November, 1914, he delivered to Bums four bales of cotton and two tons of seed to be applied toward the payment of the supply account and the mortgage indebtedness. There is a dispute between the parties as to the amount of cotton delivered by Williams to Burns and the value thereof. We do not deem it necessary to state the testimony on this point in detail; but we are of the opinion that the finding of the master to the effect that this was more- than sufficient to pay off the supply account of Williams, and that the remainder should be applied toward the payment of the mortgage indebtedness is correct.

Burns rented the place to John Daniels during the year 1915. Daniels sold some timber off the place for $230 and paid Burns $200 of it.. He put the balance in improvements on the place. The master properly allowed only $200 of this amount to be charged to Bums. The mortgagee in possession is entitled to reimbursement upon foreclosure or redemption for reasonable or necessary repairs made by him while in possession. Mc-Carron v. Cassidy, 18 Ark. 34; and Green v. Maddox, 97 Ark. 397. The repairs in question were necessary for the preservation and beneficial occupation of the property by Burns, and the- $30 were properly allowed for repairs.

The testimony for Burns shows that Daniels made permanent improvement upon the property by building houses, clearing land, etc., to the value of between $500 and $1,000. Burns was not authorized by Williams to have these improvements made and -is not entitled to compensation for them. The mortgagee has no right to increase the burden of redeeming; and, if he makes repairs which are not necessary to preserve the estate, he is not entitled to compensation for them, although they are of such a nature as to increase the rental value of the premises. Robertson v. Read, 52 Ark. 381, and Green v. Maddox, 97 Ark. 397.

Daniels was made a party defendant to the action and claims credit for the improvements made by him under the betterment act. He was in possession of the land during the years 1916 and 1919, inclusive, under a bond for title from Burns and made the permanent improvements during this time. In White v. Stokes, 67 Ark. 397. The repairs in question were necessary for of title on which to base a claim for improvements made by the occupant. In Beasley v. Equitable Securities Co., 72 Ark. 601, the court reaffirmed this doctrine and declined to overrule White v. Stokes, supra.

The principal item about which there is a dispute in the master’s account is the rent for the four years from 1916 to 1919, inclusive. Williams and three of his boys testified that the rental value of the farm for these years was $200 a year. Daniels also testified that this was the rental value of the farm. Three witnesses testified for Bums that the rental value of the land for those years was only $108 per annum. Burns corroborated their testimony.

The chancellor charged Burns with rent at the rate of $200 per annum for those four years. We think the chancellor erred in so holding. If it can be said that the rental value of the farm for those years was $200 per annum, we think the increased rental value arose from the repairs and permanent improvements made on the land by Daniels. His testimony showed that he built a dwelling house, some out-houses, and cleared some land.

In Robertson v. Read, 52 Ark. 381, the court said that a mortgagee in possession of-a farm is chargeable with such sums as are a fair rent of the premises; but that he should not be charged an increased rent caused by permanent improvements for which he is denied compensation. The court further said that justice is done by charging him with rent without the improvements, and that to the extent the rental value is increased by them he should not be held to account.

In the application of this rule, we think that Bums should have been only charged with the sum of $125 per annum for these four years. This was the amount that Daniels paid as rent before the permanent improvements were made. The permanent improvements were of sueh a character as would necessarily add to the rental value of the land. Therefore, we think the chancellor erred in charging Burns with $800 as rent for the years 1916 to 1919, inclusive. He should have only charged him with $500, being the sum of $125 per annum. This would result in decreasing the allowance made by the master in the sum of $300.

The chancellor approved the findings of the master and made an allowance of $484.13 against Burns in the account of rents and profits. This should be reduced by $300, and the decree of the chancellor should have been for $184.13. •

The decree will be modified to that extent, and as modified will be affirmed.


author: Smith, J.

text:
    W. Y. Bransford & Son v. Smith & Whitney.
    Opinion delivered March 7, 1921.
    1. Appeal and error — review op directed verdict. — In reviewing an order directing a verdict for plaintiff, the appellate court should ■ accept as true defendant’s evidence.
    2. Compromise and settlement — conclusiveness. — Where the seller of a pump denied responsibility for its failure to answer the buyer’s purpose, and refused to install new parts at the buyer’s expense, and the buyer authorized the seller to purchase and install such parts, the seller is entitled to recover, regardless of the rights of the parties under the original contract, as the service sued for was rendered under a new contract and a promise to pay.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.
    J. B. Reed and Carmichael $ Brooks, for appellants.
    1. The court did not have jurisdiction, as there was no proper affidavit for appeal; the style of the court is not given; the venue is not shown and there is no jurat; nor is the title of the officer taking the oath shown. From the record it can not be known whether E. A. Henry is a notary public, a justice of the peace or a clerk, nor in what State he is exercising authority, and the circuit court had mo jurisdiction on appeal. 33 Ark. 747. The affidavit is fatally defective, and there was no jurisdiction in the circuit court. 60 Ark. 524.
    2. The testimony was in conflict, and the case should have been submitted to a jury, and it was- error to direct a verdict. It is too well settled to cite authorities, that where there is a conflict in the testimony it is error to direct a verdict, but the case is one for a jury.

      Rogers, Barber <£ Henry, for appellees.
    1. It is too late to raise the question of a defective affidavit for the first time on appeal to the Supreme 'Court. Failure to raise the question in the lower court is a waiver. 95 Ark. 148; 59 Id. 177; 225 Mo. 116; 135 Am. St. Rep. 566; 35 Ark. 212. Affidavits are amendable in the circuit court on appeal. 33 Ark. 745; 60 Id. 524; 67 Id. 524. The authorities cited by appellants are to the same effect.
    2. Here there is no dispute as to the facts, and no conflict in the evidence. The court properly directed a verdict. The letters and telegrams furnish the basis for this suit, and they are not disputed, and the correctness of the charges as sworn to is not disputed. There was nothing for a jury to pass upon.
   Smith, J.

Appellees sued to recover the purchase price of certain parts of a pump and for the cost of their installation. Appellants answered and denied that they were indebted in any sum, and alleged that they had bought a pump from appellees for $720, and that said pump was to be complete and was guaranteed to do certain work, and that the sum sued for was the amount which was expended in putting the pump in working condition. The court directed a verdict in favor of appellees, and this appeal is from that judgment.

The contract under which the pump was sold was in writing, but was not offered in evidence at the trial. The bill rendered when the pump was shipped on June 13, 1918, was for “one Rees Roturbo Pump, good for 200 GPM against 120 feet direct. ” It is not questioned that the pump met this specification, but it is insisted by appellants that a member of appellees’ firm saw the conditions under which the pump was to operate, and stated that he was an engineer, and that the pump which he proposed to furnish would answer appellants’ purposes. In view of the fact that a verdict was directed against appellants, we must assume that the jury would have accepted that version of the sale, although appellees say they did not know the actual head .against which the pump was to operate was 137 feet, and not 120 feet, until Mr. Connor, their erecting engineer, undertook its installation.

The pump did not do the work, and appellants reported that fact to appellees, who took the position that they were not responsible for this failure. In a letter dated September 2 appellees wrote as follows: “You understand that we are not responsible for the fact that this pump does not handle your actual conditions, but it was made for 120-foot, instead of 137-foot, head. "What we want is your authority to order the parts from the factory at your expense to make the pump fit your conditions. ’ ’

Again, in a letter dated September 6 appellees said: “Your letter of the 4th regarding the head which your pump will have to work against, will say that from the ground to the top of the tank is 91 feet, from the pump to the level of the ground is 18 feet, from the pump to the water is 17 feet, and the friction amounts to 8 feet total left. We can not make a pump which will fit the conditions which we figured on and the conditions which you actually have.”

Under date of September 16 appellants wrote: “If you will refer to our letter of the 4th you will note that we said this pump is useless to us unless it fulfilled our requirements, and that it would be necessary to have the additional parts you suggest. We intended this as authority to order same, and will be glad if you will have them come at once or at earliest possible moment. We have suffered considerable inconvenience already by reason of the delay. Kindly see that this impeller comes as soon as possible.”'

Other letters passed between the parties relating to the time of the installation of the impeller, and the correspondence and negotiations were closed by two telegrams. On January 13, appellees wired: “Shall we send our Mr. Connor to erect your pump? Wire answer.” On January 14 appellants answered by wire: “Yes, send some one to complete erection of pump.”

This correspondence is subject to no other interpretation than that appellees had taken the position that they had delivered the pump contracted for, and were not responsible for its failure to answer appellants’ purposes, and were unwilling to furnish any new parts or to install them except at appellants’ expense.

Appellees may, or may not, have been right in this position, and we must, and do, assume the jury would have found against them. But they had taken that position, and were standing on it, and with this knowledge appellants gave the order for the parts and for the work covered by the account sued on. Appellants can not escape liability by showing that appellees should have rendered this service under the original contract of sale. Appellees denied they were under this duty, and the service sued for was in fact rendered under a new contract and a promise to pay, and the liability thus assumed must be enforced.

In the article on Contracts in 6 R. C. L., page 662, it is said: “The fact that the promisor is mistaken in regard to his liability is immaterial. If there is a doubtful claim, the courts will not investigate into the relative merits or demerits of the claims of the parties. It is not a defense that the claim could not have been maintained if suit or action had been brought upon it, or that the parties were mistaken as to the law; for, if it is, it would follow that a contract by the parties settling their own disputes would at last be made to stand or fall according to the opinion of the court as to how the law would have determined it. If the compromise of the parties is made to depend on the question whether the parties have so settled the dispute as the law would have done, then it may be truly said that a compromise is an unavailing, idle act which questions even the power of the parties to bind themselves.” See, also, Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379.

The judgment was therefore properly directed in appellees ’ favor, and that judgment is affirmed.


author: Humphreys, J.

text:
    Huddleston v. Bernstein.
    Opinion delivered March 7, 1921.

      1. Sales — acceptance by buyeR. — A buyer can not be required to accept goods of substantially different value from those ordered by him.

      2. Sales — delivery to carrier. — The rule that the seller’s delivery of goods to a carrier is delivery to the buyer is inapplicable where the goods . - ^"Hvered substantially differ in value from those ordereu.
    3. Signatures — signing by mark — presumption.—Where a buyer’s "i «'nature to an order, made by mark, was not witnessed as required by statute, and was not admitted by the buyer, the order is not prima facie evidence of a written contract.
    Appeal from Pike Circuit Court; J. S. Steel, Judge;
    reversed.

      J. C. Pinnix and 0. A. Featherston, for appellant,
    io error to direct a verdict for the plaintiff, as tbovn was evidence for a jury to pass upon and the evi- •■¡,- was conflicting. 73 Ark. 761; 76 Id. 520. Where •is any evidence to establish an issue, it is error to from the jury. 63 Ark. 94; 77 Id. 556; 36; 35 id. 146; 62 Id. 63; 84 Id. 57. Where there is • conflict of evidence, the question is for a jury. 38 Ac * • ’0. Where there is any evidence to establish an i^ne, u is error to take the case from the jury. 89 Ark. • •A 368: 39 W; 99 Id. 490; 97 Id. 438. Where the evidence is conflicting, the question is always for the jury. 101 Ark. 376; 105 Id. 213; 97 Id. 438; 98 Id. 334; 96 Id. 379. See, also, 23 Ark. 115; 99 Id. 490; 85 Id. 390; 112 Id. 507; 91 Id. 383; 102 Id. 460; 76 Id. 88; 71 Id. 445; 72 S. W. 220; 210 U. S. 281, 52 Law Ed. 1061; 119 Ark. 581; 120 Id. 206; 98 Id. 334, 370; 34 L. R. A. (N. S.) 1200.
    If there is any evidence to sustain an issue, it is error to direct a verdict, but a case for a jury is made. 37 Ark. 164; Ib. 230; Ib. 580; 35 Ark. 146; 33 Id. 350; 36 Id. 451; 89 Id. 368; 97 Ark. 643; 103 Id. 401.

      W. T. Kidd, for appellee.
    The court properly directed a verdict, as there was no controversy for a jury. 89 Ark. 124; 69 Id. 439. There is no error in the instructions. 69 Ark. 489; 89 Id. 178.
   Humphreys, J.

This suit was commenced by appel-lee against appellant on the 31st day of August, 1920, before a justice of the peace in Pike County, upon a verified account based upon an alleged order for roof paint, of date October 16, 1918. The trial in the magistrate’s court resulted in a dismissal of the suit, from which an appeal was prosecuted to the circuit court. The cause proceeded to a hearing in that court, and, when the evidence had been concluded, the court sent the case to the jury, over the objection of appellant, on the sole issue of whether appellant was indebted to appellee in the sum of $89 or $99.50. The jury returned a verdict for $89. A judgment was rendered in accordance with the verdict, from which is this appeal.

The order made the basis of the suit was signed as follows:

his
“J. W. x Huddleston.”
mark

The signature by' mark was not witnessed as required by the statutes of this State. The materials specified in the order total $99.50 and were to be shipped to Mur-freesboro, Arkansas, f. o. b. destination; terms, net, thirty days, or two per cent, discount if paid .within ten days from date of invoice.

S. B. Graham testified that appellant told him he had ordered roof paint to cover the house he (Graham) was living in, which was then at the depot, but that the bill for it was wrong, being for a greater amount than he ordered; that appellant requested him to write to ap-pellee and explain the error; that he complied with the request.

Appellant testified, in substance, that he could not read or write, and that he had no recollection of having-signed an order; that, if the order introduced in evidence covered the materials to the amount of $99.50, it had been changed and was not the order given by him; that, upon receipt of the bill of lading, he notified appellee by letter that the shipment of roof paint exceeded in value the order made, and that he had refused acceptance of the order on that account and would not accept' the shipment unless made to correspond in value with the order made by him; that he received no answer to the letter.

The effect of the instruction of the court was to peremptorily direct a verdict against appellant in a sum not less than $89. This was error, because it took from the jury the issue presented by the evidence as to whether appellant was indebted to appellee in any sum. Appellant interposed the defense that he was not indebted to appellee in any sum unless the shipment substantially conformed to the order made by him. This was a good defense, for a purchaser can not be required to accept g-oods of substantially different value from those ordered by him. The court instructed the jury upon the theory that a delivery of the goods to the carrier was a delivery to appellant. This assumption would have been correct had the shipment substantially corresponded with the order, but was incorrect if the shipment materially differed from the order. Appellant testified that he only ordered $89 worth of roof paint; whereas, the shipment was for roof paint in the value of $99.50. The court should have instructed the jury to return a verdict for appellant if the order given by him was for only $89 worth of roof paint. Appellee contends, however, that the peremptory instruction was correct because appellant was bound on the written order which specified roof paint in the amount of $99.50. This position is not sound because the order introduced in evidence was not signed by appellant in the manner required by the statutes of this State for signatures bj^ mark. Unless admitted or so signed, it could not be regarded as even prima facie evidence of a written contract.

For the error. indicated, the judgment is reversed and the cause remanded for a new trial.