text:
    Stewart v. Hunnicutt.
    Opinion delivered January 7, 1929.

      Wilson & Wilson and Evans S Evans, for appellant.

      W. P. Strait and Hays, Priddy, Borex é Madole, for appellee.
   Mehaffy, J.

The appellant filed suit in Yell Circuit Court to contest the nomination for the office of assessor of Yell County, the nomination having been awarded by the Democratic County Central Committee to the defendant, J ess Hunnicutt. The chairman and secretary of the Democratic Central Committee of Yell County were made defendants also.

The complaint alleges, in substance, that plaintiff and defendant were both candidates for the office of assessor at the primary election held on the 14th day of August, 1928, and that Clarence Georace, Jacob Anderson, Hubbard Winehell and Walter Howell were also candidates at said election for the nomination for the same office. There are allegations of fraud, and specific statements with reference to the townships in which the fraud was committed, and it is alleged that, on the face of the returns, Hunnicutt received 996 votes, Clarence George received 296 votes, Jacob Anderson 231 votes, Hubbard Winehell received 459 votes, and Walter Howell received 637. Plaintiff also alleged that he received the highest number of votes, and was entitled to the certificate of nomination.

The defendants answered, and demurred to the complaint. The court overruled the demurrer. The answer denied specifically all the material allegations of the complaint. Defendant Hunnicutt filed a cross-complaint, in which he alleged fraud. Stewart, as shown by the returns, received 950 votes. The court made an order placing all the election returns in the custody of C. C. Sharp. This order was made with the consent of all the parties. Hunnicutt had filed a special plea, and the court, when it overruled the demurrer, took this special plea under advisement. The parties then took proof, • and, after taking some proof, appeared, and it was shown that, after taking the proof and throwing out the votes that were illegal, both those cast for Stewart and for Hunnicutt, each of them had fewer votes than Walter Howell was shown to have. Howell was not a party to the suit. The court’s order is as follows:

“On this day this cause comes on to be heard, the plaintiff appearing in person and by Evans & Evans and Wilson & Wilson, his attorneys; the defendant, Jess Hunnicutt, appearing in person and by W. P. Strait and Hays, Priddy, Rorex & Madole, his attorneys; and it appearing to the court, by the admission of both contestant and contestee, that the proof now taken by both parties shows that contestant and contestee have each received a less number of votes than was alleged in the complaint to have been received by Walter Howell, who was a candidate for tax assessor at the same time with the parties to this suit, and who has hot been made a party to this suit, and the court holds:

“That, by reason of the admission of the parties contestant and contestee, that said number of votes alleged to have been received by said Howell, as shown by the returns of the central committee, destroys contestant’s cause of action, and the court holds that it is incumbent upon contestant to legally show that he has received a plurality of votes cast in said election over and above any and all candidates.”

The court then dismissed the complaint, and the contestant has appealed.

It is first contended by appellant that the court erred in holding- that, by reason of the admission of the parties contestant and contestee, the number of votes alleg-ed to have been received by Howell for tax assessor in the primary, as shown by the returns of the central committee, destroys the contestant’s cause of action. We do not ag-ree with appellant in this contention. The right of contest is conferred by statute. The statute provides that a right of action is conferred on any candidate to contest the certification of nomination and certification of votes made by the county central committee. Section 3737 of 'Crawford & Moses’ Digest, among other things, provides:

“If the complaint is sufficiently definite to make a prima facie case, the judge shall, unless the circuit court in which it is filed is in session or is to convene within 30 days, call a special term,” etc.

It will be observed that the statute provides that if the complaint is sufficiently definite to make a prima facie case, etc. The complaint in this case, when filed, was sufficiently definite, and the court so held. But the plaintiff thereafter in open court conceded that Howell, as shown by the returns, received more votes than he did. Howell was not a party, and the presumption is that the returns showing the number of votes that Howell received are true. Therefore, when the contestant made the admission that the returns showed more votes for Howell than he had received, he thereby showed that he was not entitled to contest the election. Howell was mot a party; the presumption is that he received the votes shown by the returns, and therefore the pleadings on their face showed that the contestant was not entitled to the nomination, and he had no right to maintain the action.

The complaint in a contested election case must show that the contestant had such an interest in the election as will entitle him to maintain the contest under the statutes authorizing- it. That is, he must show that he has a rig’ht to the nomination himself. Where an election is contested by a defeated candidate, he must allege that he was a candidate for election to the office in controversy, and that he was duly elected. That is, that he received more votes, than the contestee. In other words, he must show that he received a plurality of the votes in said election.

The contestant recog-nized this principle of law, and stated in his complaint: The plaintiff received the high-’ est number of legal votes cast in said primary for the office of tax assessor for the county of Tell, and is entitled to be declared and certified as the Democratic nominee for said office.

The plaintiff received 958 legal votes in said primary, and the defendant Hunnicutt received, or is credited with receiving, 996 legal and illegal votes, etc.

But afterwards, in open court, the contestant conceded that, according to the returns and the proof taben, he had not received the highest number of legal votes cast in said primary election. This is true because the presumption is that Howell’s votes were all legal. There is nothing to indicate to the contrary. And therefore, when the ¡contestant made this statement and this admission, it amounted to an amendment to his complaint so that it stated that he had not received the highest number of legal votes. To have continued the trial of the lawbuit after this admission, without Howell being a party, would have been a contest simply for the purpose of determining which of two defeated candidates received the greater number of votes.

“The ordinary statutory contest is an adversary proceeding, the contestant defeated on the face of the returns being the contestant.and the candidate returned as elected being the respondent or contestee; and all parties-having interests adverse to the contestant should be brought in .as contestees. Where the only question presented by the pleadings is whether the petitioner or the incumbent of the office was elected, other defeated candidates not claiming the office need not be made parties. But, where several candidates are voted for on the same ticket, each candidate being opposed to every other candidate for the office, and none of them running for any particular one of the several places to be filled, all successful candidates and all persons who were candidates in the same election are necessary parties, although a successful candidate, whose election as one of several city commissioners is conceded by all parties, need not be made a party to a proceeding contesting the election of other commissioners.” 20.B. O. L. 223.

But in the instant case, the contestant, as we have already said, admits that Howell received more votes than contestant did. Appellant states in his brief that Howell was not a party, and that there was no investigation of or proof taken with reference to the character of the votes credited to Howell by the central committee. Howell did not contest the nomination of Hunnicutt, and Stewart did not have a right of action- against Howell. That is true, but the right of contest is given to a defeated candidate who alleges that he is entitled to the nomination, and if no proof is taken with reference to the character of votes credited to Howell, the presumption is that all the votes credited to him are legal. This number of votes shows that he received more than contestant. The contestant therefore is in the attitude of claiming that he is entitled to the nomination and at the same time admitting that he did not receive as many legal votes as Howell did.

Appellant calls attention to § 1096 of Crawford & Moses’ Digest, which provides that any person may be made a defendant who has or claims an interest in the controversy, or who is a necessary party to complete determination and settlement of questions involved in the action. And he then argues that Howell was not a necessary or proper party. “ That may be true, but, when the plaintiff himself shows that he is not entitled to any relief, it would be useless to continue the investigation after he has already shown that he did not receive as many votes as Howell, and he could not be entitled to any relief when his own showing was that Howell received more votes than he did. In other words, in order to entitle plaintiff to the relief he asked, he must show that he received a plurality of the legal votes cast, and it would be idle to continue to take proof as between contestant and contestee after an admission that contestant did not receive a plurality of the votes.

In the ease of Hill v. Williams, 165 Ark. 421, 264 S. W. 964, this court said: “It alleged that there were four candidates for the office of sheriff and collector, including appellant and appellee, but failed to set out the number of votes received by each. A demurrer was interposed to the complaint, which, upon hearing-, was sustained by the court, and, upon failure to plead further, the complaint was, dismissed, from which judgment of dismissal an appeal has been duly prosecuted to this court. * * * It was incumbent upon appellant to allege facts, and not conclusions, which would disclose, if true, that he received a plurality of all the votes cast for sheriff and collector in said county. The allegation that certain votes were cast for and accredited to one of his three opponents would not of itself show that he received the highest number of votes in the election for said office. ■ There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to appellee, that appellant would then have more votes than either one of his opponents.”

The instant case comes squarely within the rule- announced by the court in the above case. To begin with, there was an allegation showing that contestant was entitled to the office, but, after his admission that one of the other candidates received more than he himself received, he would then not be entitled to continue the contest, because, as the court said in the above case, it must appear, after deducting the alleged fraudulent votes, from the number accredited to the appellee, that appellant would then have more votes than either one of his opponents.

This court has- also said: “The question necessarily presents itself in the beginning, whether or not appellant is in an attitude to contest the certificate of nomination awarded to appellee. Appellant’s contention being that there was no valid nomination at all, he is not a claimant himself for the nomination, and all that can be done by the court is to cancel the certificate of nomination awarded to appellee. This is therefore not really a contest for a nomination as contemplated and authorized by the statute. In order to make a contest for the nomination, appellant must show that he is entitled to the nomination himself, which he fails to do. The statute (Crawford & Moses’ Digest, 3772) declares that a right of action is conferred on any candidate to contest the certificate of nomination or the certification of vote as made by the county central committee. This confines the right of contest to a candidate at the primary election, and to one who claims to be the rightful nominee. He must show that he is the nominee instead of the contestee, and he fails to show a cause of aption unless he so states in his complaint.” Storey v. Looney, 165 Ark. 456, 265 S. W. 51. -

Finding no error, the judgment is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Ellis v. State Printing Board.
    Opinion delivered January 7, 1929.

      Hays, Priddy & Rorex and Ed I. McKinley, Jr., for appellant.

      H. W. Applegate, Attorney General, Hal L. Nor-wood, Assistant, and Daily <& Woods, for appellee.
   McHaney, J.

Appellants, Tod Ellis and J. L. Boyd, operate as partners the business known as the Russell-ville Printing Company, and on December 31, 1927, brought this action against the appellees, who were the then Governor, State Auditor, Secretary of State and State Treasurer, composing the State Printing Board, and the Calvert-McBride Printing Company, to enjoin them from carrying out a contract for State printing let to Calvert-McBride Printing Company. Appellants and the Calvert-McBride Printing Company were competitive bidders for a certain contract known as miscellaneous contract No. 18. Each hid was submitted to the Secretary of State on identical forms, as follows:

Plain composition, per 1,000' ems...........................$ .30 $ .30

Tabular composition, per 1,000 ems...................40 .50

Book paper, per pound, M. F.....................................08% .08

Book paper, per pound, S. S. C.............................11 .09

Book paper, per pound, enamel...............................13 .15

Cover paper, S. S. C., per pound............................03 .05

Manila tag board, per pound.....................................01 .02

Press work, per 100 sheets, first form.............30 .10

Press work, per 100 additional sheets................12 .09

Folding, per 100 signatures or less...................10 .09

Gathering, per 100 signatures or less................04 .05

Stitching, per 100 pamphlets.....................................04 .05

Pasting, covering and trimming per 100...... .04 .05

Binding in full cloth, each, not larger than 6x9.......... 01 .01

Binding in full cloth, each, not larger than 8x11...............................................................................01 . .02

Binding in full cloth, each, larger than above ............................................ 01 .02

The first column of figures above represents the bid of the Russellville Printing 'Company, and the second column that of Oalvert-McBride on the different items entering into the production of the pamphlets covered by contract No. 18. The principal difference in these bids is shown in the item for “press work, per 100 sheets, first form,” the Russellville Printing Company’s bid being 30c and Oalvert-McBride’s being 10c for the same work. However, it is contended by appellants that this item in their bid was based upon sheets containing sixteen pages, and that of appellee, Calvert-McBride, was based upon the assumption that a sheet contained four pages, and that while on the face of the bids appellant’s bid appears to be 300 per cent higher, in reality it was lower, in that it involved four times the amount of work, which would make their bid 7%e> and appellee’s 10c. On this account it is claimed that it submitted the lowest bid, and that it should have been awarded the contract for this work. The bill for an injunction was submitted to the chancery court upon the evidence of both parties, which resulted in a decree dismissing appellant’s complaint for want of equity.

The statute does not in terms define the meaning of a sheet of paper as used in the above bid. It does define the term “signatures” as used in the bid. The word “signatures” among printers has a well defined meaning in accordance with a provision of the statute, which is § 9218, C. & M. Digest, and is as follows: “In all sections of this chapter where the word ‘signature’ occurs, it shall be construed to mean a ‘sheet’ containing sixteen pages.” It appears from the testimony that the standard sheet among printers and printing establishments is a sheet of paper, which, when folded, makes sixteen pages without waste. It may be, probably is, that a sheet of paper means such a size sheet as when folded will make sixteen pages. The above definition of ‘ ‘ signature” seems to indicate such a meaning. But, regardless of whether a sheet contains sixteen pages or less, it appears from the evidence that these bids were submitted in July, and that shortly thereafter the Secretary of State called in to conference the Governor, Auditor and the 'State Treasurer, whose duty it is to approve all contracts that may be let for State printing, who held hearings on this particular contract, and considered the matter thoroughly from every standpoint based on the contentions of appellant and that of appellee, until the latter part of December, when the contracts were finally approved. It does not appear, in fact there is no allegation in the complaint, that there was any fraud, collusion or unfairness on the part of those whose duty it is to let and approve these contracts. The statute vests them with this power, and necessarily gives them some discretion in determining who the lowest bidder is. True, the statute requires the board to let the contract to the lowest bidder, but in contracts of this kind, where the items entering into the bid are numerous, complicated, involved, and require technical knowledge to a determination of the question as to which bid is the lowest, the .judgment of those upon whom the duty rests of letting the contract to the lowest bidder should be and is final in the absence of fraud, collusion, favoritism or demonstrable mistake. It appears from the evidence that the Secretary of State was assisted in figuring these bids by the State Printing Clerk, who at least is supposed to possess technical knowledge in the matter of figuring such contracts.

Moreover, it is conceded that if a sheet means four pages, then Calvert-McB ride’s bid was the lowest, and we think it appears from a preponderance of the evidence that, figuring the appellee’s hid based on a sixteen page,sheet, it is still lower than that of appellants.

In Arkansas Democrat Co. v. Press Printing Co., 57 Ark. 322, 21 S. W. 586, it was held that, where the Board of Commissioners let a contract for binding for the various departments of the State Government to one who was not the lowest bidder, and who had not accompanied his bid with a bond, the lowest bidder to whom the contract was not awarded had no rights under the contract entitling him to an injunction to restrain the board from proceeding under the -contract as let. But in that case the Press Printing Company brought the action to enforce what it conceived to be a private right, and not in the interest of the public, while in this case the appellants bring the suit in the interest of the public as citizens and taxpayers, as well as to enforce a private right. We are therefore of the opinion that, under the (circumstances of this case, this court should not substitute its judgment for that of the Board of Commissioners, even though we might be of the opinion that the board had erred in its judgment in letting the contract, especially so in the absence of any allegation and proof of fraud or demonstrable mistake.

We find no error, and the decree is affirmed.


text:
    Southern National Insurance Company v. Lofton.
    Opinion delivered January 7, 1929.

      Martin K. Fulk, for appellant.

      Oscar Winn, for appellee.
   McHaney, J.

Appellee brought this action to recover on an accident insurance policy issued by appellant to her husband, Ira Lofton, deceased, in which she was named as, the beneficiary. The policy provided protection against accidental death in the sum of $500 “by violent, external and accidental means.” The insured was an employee of the Dixie Cotton Oil Company, and, on November 18, 1926, while he was asleep, one Son Lewis, a foreman in the employ of the Dixie Cotton Oil Company, applied to the insured’s body and over his heart, an electrical shocking machine, which so severely shocked him that he died a few minutes thereafter. Son Lewis did not intend to injure him, but only intended to wake him up'or to play a joke on him. There was a verdict and judgment for appellee.

The only contention made for a reversal of this case is made under clause “T (1) ” which is as follows: ‘ ‘ The company’s liability for death or disability, due directly or indirectly, wholly or in part, to * * *; (b) injuries intentionally inflicted upon the insured for private or personal reasons; * . * * then in all such cases benefits shall be ten per cent, of the amount otherwise payable under this contract. ’ ’

It is the contention of appellant that, under this clause in the policy, its liability should be limited to $50, for which amount appellant offered to confess judgment, and which it asked be entered here. This contention is based upon the fact that Son Lewis intentionally applied the device to the body of the insured, which shocked him, and from which shock he died, and that, under the “limited coverage” clause above quoted, the company is only liable for ten per cent, of the full amount, where he received the injury at the hands of another, which was intentionally inflicted upon him for private or personal reasons.

We cannot agree with, appellant in this contention. Numerous cases are cited by counsel for appellant from other jurisdictions, which he insists tend to support this contention, but this court has held directly to the contrary in the recent case of Mutual Benefit Health & Accident Assn. v. Tilley, 176 Ark. 525, 13 S. W. (2d) 20. In that case the administrator of the insured was permitted to recover on an accident policy for the insured’s death, who was shot by his wife, and who was the beneficiary under the policy, where the jury found that the killing was intentional but not justified, and that such killing was accidental within the meaning of the policy. In this case it is true that the device was intentionally applied to the body of the insured by Son Lewis, but the result was wholly unintentional. His death therefore was accidental within the meaning’ of the policy. The injuries inflicted upon the insured by Son Lewis were not intentional injuries, therefore, within the meaning of the limited coverage clause.

We find no error, and the judgment is affirmed.


author: Smith, J.

text:
    Fulton v. State.
    Opinion delivered January 14, 1929.

      H. B. Means, for appellant.

      H. W. Applegate, Attorney G-eneral, and John L". Carter, Assistant, for appellee.
   Smith, J.

This cause was tried in the court below upon an agreed statement of facts, from which we copy the following recitals:

The grand jury of Hot Spring County, at an adjourned day of its January, 1927, term, returned indictments numbered 1646 to 1662, inclusive, in which appellants, Wallace Fulton and Murl Morehead, were charged with the crime of robbery; that on the 4th day of March’, 1927, Fulton was placed on trial on indictment No. 1649, and was found guilty, and his punishment fixed at a term of nine years in the State Penitentiary; that on the 18th day of April Fulton was placed on trial on indictment No. 1656, found guilty, and his punishment fixed at six years in the penitentiary; that on the 22d day of March, 1927, Morehead was placed on trial on indictment No. 1662, found guilty, and. his punishment fixed at six years in the penitentiary; that on the 27th day of April, 1927, Fulton and Morehead were sentenced by the court as above set forth, and on the same day commitments were issued, and the sheriff delivered the defendants to the penitentiary of the State of Arkansas, and they have been confined in the penitentiary ever since that day; that they have not been brought into open court and put upon trial, or given an opportunity to demand a trial.

Upon the record made by the agreed statement of facts, the appellants moved the court to quash the indictments against them upon which they had not been tried. That motion was overruled, and this appeal is from that judgment.

The motion to discharge is based upon § 3132, C. & M. Digest, which reads as follows:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on application of the prisoner.”

The interpretation and proper application of this statute was thoroughly considered in the case of Ware v. State, 159 Ark. 540, 252 S. W. 934, where the previous decisions of this court which had construed this statute were reviewed, and cases from other jurisdictions construing’ similar statutes were cited. We will not again review these authorities. The entire subject was summed up in the Ware case by quoting from the early case of Stewart v. State, 13 Ark. 720, where Chief Justice Watkins had said that, for a person to be entitled to his disoharg’e under this statute, he must place himself in the attitude of “having demanded a trial, at least in an attitude of resisting postponement.”

It is stipulated here that appellants “have not been brought into open court and put upon trial and given an opportunity to demand a trial,” and we are therefore of the opinion that they are entitled to the benefit of this statute.

It is insisted that the word “prison,” as used in the section quoted, has no application whatever to persons committed to the penitentiary, as appellants were, upon a conviction for some other offense against the State. We do not concur in this view, and the weight of authority is ag’ainst it.

In the Ware ease, supra, it was said: “In State v. Keefe, 98 Pac. 122, a statute was under review which reads as though it might have been copied from our statute, or the Missouri statute, from which our statute was probably borrowed. The court concluded a most learned and exhaustive opinion as follows: ‘The court decides that the fact of defendant’s imprisonment in the penitentiary, under the circumstances set forth in the agreed statement of facts, does not constitute a sufficient defense to the application of the defendant for his discharge; that % 5382 and 5384 apply to the. defendant, and, upon the facts, the defendant has not had a speedy trial as provided in the 'Constitution. ’ See also Hollandsworth v. Godby, 117 S. E. 369.”

The opinion in the Ware case also cited the case of State v. Wurdenmann, 295 Mo. 566, 246 S. W. 189, which is to the same effect.

The Keefe case, supra, appears as an annotated case in 17 Ann. Cas. 161, and the annotator says in the note that constitutional and statutory provisions providing that a person accused of crime shall be entitled to a speedy trial apply to one who is already a convict as well as to other persons, for the reason that the convict is not only amenable to the law, but is under its protection as well, and the fact that the defendant is a convict does not prevent him from availing himself of the statute. In 16 O. J., page 442, in chapter on “Criminal Law,” it is said that: “It has been held that the right to a speedy trial does not apply to a convict, but the weight of authority is to the contrary. ’ ’

¡See -also Arrowsmith v. State, 131 Tenn. 480, 175 S. W. 545, L. R. A. 1915E, 363; Ex parte Trammer, 25 Nev. 56, 126 Pac. 337, 41 L. R. A. (N. S.) 1095.

The Constitution guarantees every one accused of crime the right to a speedy trial, and the statute quoted is declaratory of the Constitution, and is an expression of the legislative judgment as to the time within which this right should be accorded an accused person.

Section 3134, C. & M. Digest, provides that § 3132 shall not be so construed as to discharge any person who may have been indicted for any criminal offense, on account of the failure of the judge to hold any term of the court, or for the want of time to try such person at any term of the court. It is also provided in § 3135, C. & M. Digest, that if, when application for the discharge is made, the court shall be satisfied that there is material evidence on the part of the State which cannot be had, that reasonable exertions have been made to procure such evidence, and that there is just ground to believe that such evidence may be had at the succeeding term, the cause may be continued to the next term.

There is nothing in the agreed statement of facts from which to find that either § 3134 or § 3135, C. & M. Digest, applies here, and, as it is stipulated that appellants have not been brought into open court and put upon trial or given an opportunity to demand a trial, we hold that these men, who have had no opportunity to demand a trial, should not be regarded as having waived this valuable right. They are entitled to have the indictments discharged upon which they have not been tried. This order does not, of course, ■ affect the judgments under which appellants are confined in the penitentiary.

The .judgment of the court below is therefore reversed, and the cause will be remanded, with directions to discharge the indictments upon which appellants have not been tried.


text:
    Ouachita Valley Refining Company v. Webster.
    Opinion delivered January 14, 1929.

      Powell, Smead & Knox, for appellant.

      T. O. Abbott, for appellee.
   Smith, J.

E. M. Telle leased a certain pipe line gathering system for the term of one year, which lease he later renewed, and on February 21, 1925, he entered into a contract, which designated him as party of the first part, with the Ouachita Valley Refining 'Company, which was designated as party of the second part, for the joint use of the pipe line. This contract recites that both parties should have the right to- transport crude oil through the pipe line during the life of the lea-se, and that the cost of operation should be borne by the parties in proportion to the quantity of oil each transported through the line for each monthly period- covered by the lease. The contract provided how the accounts should be kept of the oil which each party transported through the- pipe line, and “that there shall be no- attempt to -distinguish the oil belonging to first party and the oil belonging to- second party, each party being entitled to receive oil of approximately the same gravity as that which goe-s into the line from their respective leases. Each party shall be entitled to his proper proportion of the total runs, based on -approximately equal daily -deliveries as shown by the run tickets- signed by the producer from whom said oil is purchased. ’ ’

The contract further provided that, “the pipe line now being full of crude oil, it is understood and agreed that said crude is the property of the first party, and shall -so remain -during the existence o-f this contract.”

This agreement for the joint use of the pipe line was renewed to -cover periods of the renewals of the original lease to Telle.

The parties operated under this contract until January 1, 1927, after which time the second party, the refining company, hereinafter referred to as the company, ceased to use the pipe line, and testimony was offered on behalf of the party of the first part that the company had -abandoned the contract for joint use of the pipe line, and had begun the sole use of a line which it had constructed.

Telle died by his own hand on January 12, 1927, and on the following day the company emptied the pipe line, taking therefrom 424 barrels of oil, this being the quantity of oil required to fill it. The testimony on the part of the company was to the effect that, after it had been charged with this oil, the company had still received 22.86 barrels of oil less than the quantity of oil which it had put into the line. It is insisted that this testimony is undisputed, and that a verdict should have been directed in. favor of the company in this suit, which was brought by Telle’s executor against the company for the value of the oil in the pipe line at the time of Telle’s death.

The testimony as to the quantity of oil which the company had received does not appear to have been undisputed, but, even if it were, we do not think a verdict should have been directed in the company’s favor.

The company requested the following instruction: “7. Even though you should find that the defendant company had not run any oil into said line for several weeks, yet if you should find from a preponderance of the evidence that it had failed to take from said line an amount of oil equal to the amount placed by it into said line (and this oil had been delivered to plaintiff’s intestate), and you should further find that, although plaintiff’s intestate continued to run oil into said line, so that at no time was said line completely empty, then you are told that the defendant at all times had title to an amount of oil in said line equal to the amount which it had placed in said line and had failed to receive, but which had been delivered to plaintiff’s intestate, and you are instructed that it had a right to take said oil by peaceable means at any time, either before or after the death of plaintiff’s intestate.”

This instruction was given after the court had added the following modification:' “Provided yon find the defendant company had not previously abandoned the use •of the line under the contract.” The company excepted to this modification; but we think it was proper, and that the instruction as modified declared the law as favorably to the company as it could ask. 'There was a stipulation -covering the quantity and value of the oil drawn off by the company on January 13, and, as the jury found for the plaintiff for the value of the oil, we must assume that the jury found the fact to be, under the instruction set out above, that the company had previously abandoned the use of the line under the contract. If this be true, the title to the oil in the pipe line on January 13 was in Telle, notwithstanding the contract for the joint use of the pipe line; indeed, the provision of the contract quoted above, that “the pipe line now being full of crude oil, it is understood and agreed that said crude is the property of the first party, and shall so remain during the existence of this contract,” appears to have contemplated that this should be so>. It may be that the company did not receive as much oil out of the pipe line as it put in, but, if so, it should have asked and obtained an accounting for the difference. It had no right to proceed in the summary manner in which it did to have- a settlement of this balance.

The case of Henderson Co. v. Webster, ante, p. 553, is in point. That case, like this, was one brought by Telle’s executor, and it was shown there as it is here, that Telle’s estate was insolvent. Telle’s creditor in that case had sold him a carload of casinghead gasoline, and, upon being advised of Telle’s death, the creditor undertook to retake the oil, and in attempting so to do claimed that it was exercising the shipper’s right of stoppage in transitu, Avhere the insolvency of the consignee was discovered. The jury found that delivery of the shipment had been made to Telle in his lifetime, and upon this finding we said that the right of stoppage in transitu could be not be exercised.

In that case, as in this, Telle’s executor sued for the value of the converted property, and it was there contended that the shipper had the right, under § 1198, C. & M. Digest, to offset its claim for the purchase price of the oil against the demand of the plaintiff’s executor for its value. But we held that the statute “does not authorize one who has sold goods to a person to go to the place of business of the buyer and retake the property which has been delivered, and then, when sued for the value of the property so retaken, set-off debts due to the seller in an action of this kind. ’ ’

So here, the company having retaken oil the title to which was in plaintiff’s testator, could not, when sued for its value, set-off against this demand a claim, however well founded, that the testator owed it for the same quantity of oil, or upon any other account. The company should have probated its claim against the estate for the value of any deficiency in the quantity of oil which it failed to get, for, as we have already said, it had no right to proceed as it did to collect its demand against Telle’s estate.

The judgment is therefore affirmed.


author: Humphreys, J. Hart, C. J.,

text:
    State v. Kincannon.
    Opinion delivered January 14, 1929.

      E. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellant.
   Humphreys, J.

Appellee was acquitted in the circuit court of Mississippi County, Osceola District, on appeal from a judgment of conviction in the court of a justice of the peace in said county, upon a charge for violating § 4775 of Crawford & Moses’ Digest, which inhibits and makes it a misdemeanor for any person to catch or otherwise take any fish from any of the waters of the State without first procuring an annual license to do so. The case was tried in the circuit court upon the following agreed statement of facts:

“Whereas, Dan Kincannon, a resident of the Osceola District of Mississippi County, Arkansas, has heretofore been arrested upon a charge of violating the game and fish law of the State of Arkansas; and whereas the isaid Dan Kincannon has been fishing for the market with a hoop-net upon the waters of the Mississippi River without license; and whereas he was convicted of this crime in the justice of the peace court before Gr. L. Waddell, a .justice of the peace for Monroe Township, Mississippi County, Arkansas; and whereas this case is before this court upon appeal; it is therefore agreed between the parties hereto that the defendant, Dan Kin-cannon, has been fishing upon the waters of the Mississippi River for market purposes, and has been using a hoop-net, and has not procured a license as set out in § 4775 of Crawford & Moses’ Digest.”

The trial court took the view that § 4775 of Crawford & Moses’ Digest was repealed by act No. 423 of the Acts of the General Assembly of 1923, and that, after the repeal, it was not necessary for a person fishing upon the waters of the State for market with a hoop-net or nets to have a license. The interpretation of the later act by the trial court was incorrect. Section 1 of the later act, standing alone, would have the effect of repealing § 4775 of Crawford & Moses’ Digest, but, when read in connection with the other sections of the act, it is manifest that the Legislature only intended to repeal § 4775 of Crawford & Moses’ Digest so far as it related to Marion County. Section 4 of the act limits all other provisions of the act to Marion County only.

" On account of the error indicated the judgment of acquittal is reversed, and the cause is remanded for a new trial.

Hart, C. J.,

concurs in construction of act, hut dissents on ground that the venue was not proved.

Justices Smith and Mehaffy dissent.


author: Humphreys, J.

text:
    Rowland v. Ward.
    Opinion delivered January 14, 1929.

      Block & Kirsch, for appellant.

      D. G. Beauchamp, for appellee.
   Humphreys, J.

This suit was brought by the administrator of the estate of L. W. Rowland, deceased, against appellees, in the chancery court of G-reene County, to recover certain indebtedness owed to said estate by E. W. Rowland and to set aside a deed executed by him and his wife to Arthur H. Ward to his undivided one-eleventh interest in the real estate described therein, and to subject same to the payment of said indebtedness.

It was alleged in the complaint that the deceased, L. W. Rowland, signed .a note in his lifetime for $1,730.68 to. the National Bank of Commerce at Paragonld, as surety for his son, E. W. Rowland, which was duly pro-hated against the estate of the deceased, and paid by the administrator out of the assets of said estate. It was also alleged that E. W. Rowland borrowed $500 from his father on the 8th day of June, 1925, and executed his note for the amount, and that the administrator had been unable to collect either amount on account of the insolvency of E. W. Rowland. It was further alleged that E1. W. Rowland fraudulently conveyed his undivided one-eleventh interest in all real estate owned by his father at the time of his death to Arthur H. Ward, for the purpose' of .cheating and defrauding the estate of L. W. Rowland in the. collection of said indebtedness, for a pretended consideration of $500, .although his interest in the real estate was worth twice that amount, and that in fact no consideration was paid for the real estate; and that Arthur EL Ward knew of Rowland’s indebtedness to the estate, and participated in and aided him in effecting the fraudulent conveyance.

E. W. Rowland and his wife, although personally summoned, filed no answer to the complaint. Arthur EL Ward filed an answer to the complaint, denying each and every material allegation therein.

The cause was submitted upon the pleading’s and testimony adduced, resulting in a finding in favor of Arthur H. Ward, and a dismissal of the complaint against him for want of equity, from which is this appeal.

On' October 31, 1925, L. W. Rowland died intestate, and one of his sons, GE W. Rowland, qualified and administered upon his estate. Ele died seized and possessed of a large amount of real estate, in addition to his personal property. The personal property was insufficient to pay the indebtedness of the estate, and the administrator sold a part of the real estate to satisfy the unpaid probated claims. During the pendency of the administration all of the heirs, except E. W. Rowland, sold their respective interests in the real estate to Sam McHaney for $700 to $900 a share. Taking into account the indebtedness of the bank, which the administrator paid, E. W. Rowland was indebted to his father’s estate a little over $2,400, including interest.. At the time of his father’s death, in October, 1925, E. W. Rowland was in the grocery business, which he continued until April, 1926. During the time he was operating the grocery business the administrator requested him to deed his interest in the estate in liquidation of the debt which he owed it. The administrator testified that he agreed to do so, but he denied making such promise. In April, 1926, E. W. Rowland failed in the grocery business, and turned his stock, notes and accounts over to creditors. This seemingly satisfied his mercantile creditors, although the amount turned over by him to them did not entirely pay their claims. E. W. Rowland had several children in school, and needed money with which to support his family and keep the children in school. His wife, a sister of Arthur H. Ward, who resided at Peoria, Illinois, wrote to him concerning their financial distress. Ward had moved to Peoria from the neighborhood of Paragould in 1921. After receiving the letter from his sister, he and his family went to St. Louis to visit his wife’s mother, and, while there,"Ward concluded to go to Paragould to see how his sister and family were getting along. E. W. Rowland told him of his failure in the grocery business, and that he had turned over all his accounts and stock to his creditors in settlement of their bills, but informed him that he needed money very badly to live upon. Without telling Ward anything about his indebtedness to his father’s estate, Rowland proposed to sell his undivided one-eleventh interest therein to Ward for $900, but Ward refused to pay him more than $735 for it. Rowland accepted this offer. Ward brought $535 to Paragould in cash, and, on the morning of his arrival, deposited it in the Paragould Trust Company. Rowland and his wife conveyed the land to Ward for an express consideration of $500, and the deed recited that the interest conveyed is “subject to the debts and expenses of administration.” Ward gave Rowland a check on the Paragould Trust Company for $500, and, after he returned to Peoria, he borrowed $200 and deposited it in the bank and sent a check for $235 to Rowland’s wife to pay the balance of the consideration. The money paid Rowland by Ward was used for living expenses, and was not paid on any of his existing- indebtedness. Ward testified that he brought the money in cash, when he came to Paragould because a man would never know when he needed money. He further said that he sometimes bought and sold secondhand furniture. When asked why he deposited the money after arriving, he said that he did not want to walk around with that much money on his person. Before he purchased Rowland’s interest in his father’s estate, he and Rowland, and perhaps his sister, consulted John Gr. Hosldns, an attorney, as to whether Rowland had a right to convey .his interest in the land, and was informed that, as there were no judgments or liens against it, he could do so. Ward testified that his only motive for buying the real estate was to provide means for the support of his sister’s family, and that it was not his purpose or intention to assist Rowland in defrauding the estate. E. W. Rowland testified that his only purpose in selling- his interest in the real estate was to get money upon which to live and send his children to school. Ward did not inspect the real estate before purchasing it, but, having lived there before, was familiar with it. There is no substantial evidence in the record tending to show that the value of Rowland’s interest in his father’s estate materially exceeded $735.

Appellant contends for a reversal of the decree upon the ground that the preponderance of the testimony is clearly against the finding of the chancellor to the effect that the conveyance of Rowland to Ward was not fraudulent. Appellant alleged, in substance, that the conveyance was a voluntary one, but, according- to the weight of the testimony, Ward paid Rowland $735 for his interest in his father’s estate.

Appellant further contends that, as the deed conveying the Rowland one-eleventh interest in the estate to Ward recites a consideration for $500', they were bound 'by the recital, and could not show that the consideration was in excess of that amount. The case of Carmack v. Lovett, 44 Ark. 180, is cited in support of the contention. In that case the consideration recited was love and affection, and the court held that no consideration could be shown other than love and affection, because it would be repugnant to the consideration mentioned in the deed. In the instant case a valuable consideration was recited, and it would not be repugnant to the consideration mentioned by proving that the consideration recited was for more than $500. This court ruled in the case of Galbraith, Stewart & Co. v. Cook, 30 Ark. 417, that it was allowable to prove an additional valuable consideration' because not repugnant to the one mentioned in the deed. We think the rule announced in Galbraith, Stewart & Co. v. Cook, supra, is the correct rule applicable to the facts in the case at bar. Although there are some discrepancies and conflicts in the testimony of the witnesses for appellee, the purport of their testimony was to the effect that the conveyance was made for an adequate consideration in cash, and for the sole purpose of providing means for the support of the Rowland family, and without knowledge on the part of Ward of any facts or circumstances which would put him upon notice that the purpose of Rowland in making the transfer was to defraud the estate out of the indebtedness he owed it. Their direct testimony was to the effect that the transaction was bona fide, and we do not think that a few discrepancies and conflicts in the testimony introduced by appellee— that Ward brought cash to the amount of $535 to Paragould in his pocket; that he failed to inspect the land before he purchased it; and that he consulted an attorney before doing so — are sufficient to overcome the findings of the chancellor to the effect that the conveyance was not fraudulent. In this State an heir inherits the real estate of his ancestor free of any indebtedness he may owe the estate. Wheeler Mercantile Co. v. Knox, 136 Ark. 95, 206 S. W. 46; Falls v. Driver, 177 Ark. 703, 7 S. W. (2d) 780. Under this rule E. W. Rowland had a right to make any disposition of his interest in his father’s real estate he wished to make, unless his purpose in doing so was to defraud his creditors Erven if his purpose was to defraud his creditors, it would not affect his grantee who purchased it for a valuable consideration, unless the grantee had knowledge of facts and circumstances sufficient to put a man of common sagacity upon inquiry so that, by diligent investigation, he would discover the fraudulent purpose of the grantor.

No error appearing, the decree is affirmed. %


author: Kirby, J.,

text:
    Interstate Business Men’s Accident Association v. Adams.
    Opinion delivered January 14, 1929.

      Buzbee, Pugh & Harrison and John Marshall Shackleford, for appellant.

      Cox & Cox, for appellee.
   Kirby, J.,

(after stating the facts). It is earnestly urged that the court erred in refusing to grant the continuance and in striking out the defense of the limitation of the amount that could he recovered under the policy for death resulting from a discharge of a firearm, unless shown to be accidental by an eye-witness of the transaction other than the insured or beneficiary.

It will suffice to say, in answer to the assignment of error for denying the motion for a postponement, that this motion also disclosed that there were no witnesses to the killing of the insured except Giles, who, it was alleged, had shot him, and that Giles had refused to testify in the case as he agreed to do, claiming exemption, as he had the fight to do, because his answers or testimony might tend to incriminate him. There was no reason to think that he would change his mind thereafter. The motion itself disclosed that there was no probability of producing" any other witness who had seen the occurrence, in fact that none others did see it. •

This court has concluded, however, that the court erred in striking out the defense alleged, limiting appellant’s liability under the clause of the policy to the payment of $100 only for the loss sustained by the death of the insured as a result of the discharge of a firearm, there being no testimony of any witnesses showing’ the conditions at the time of the shooting.’ This clause is not in any wise in conflict with our statutes, $ 6156 of C. & M. Digest, declaring that no policy of insurance shall contain any conditions or provisions which shall, directly or indirectly, deprive the insured or beneficiary of the right to trial by jury of any question of fact arising under such policy, and that all such provisions or conditions are vcjid. The clause of the policy relied on as a defense is not in conflict with this statute, and is but a limitation of the liability on a risk that could have been excepted altogether from the policy. The liability on the risk to the insured resulting' from the discharge of a firearm was limited, as specifically provided, to the sum of $100, unless the cause of the injury or death was established by the testimony of some witness other than the insured or claimant. This language of the policy is susceptible of no reasonable construction that would require the payment by the insurer of more than the limited amount designated for accidental death of the insured resulting -from the discharge of a firearm, unless proved by the testimony of an eye-witness, as provided therefor. This is not an attempt to control the action of the courts in admission of evidence or in the effect or weight to be given it, nor to oust the court of jurisdiction over such a contract. It does not affect the right of recovery, ■but only limits the amount that can be recovered, in the absence of the establishment of the cause by the kind of testimony designated, a matter about which the parties had the right to contract, as already said, and to except such risk entirely if they chose to do so.

We do not regard the decision of the Oklahoma case of Modern Woodmen of A. v. Michelin, 101 Okla. 217, 225 Pac. 163, as an authority against our conclusions above announced, and certainly entitled to no such conclusive determining effect as appellee insists should be accorded it. Neither do we agree with the contention that the provision of the policy is void as against public policy. It is but .a limitation of the amount of the recovery, unless the cause of the accidental injury is shown by the kind of evidence designated, to a fixed sum, in a matter the parties had the right to contract about, and which could have- been excepted entirely from the policy. Ellis v. Interstate Business Men’s Accident Association, 183 Ia. 1279, 168 N. W. 212, and note L. R. A. 1918F, page 420; and especially Lundburg v. Interstate Business Men’s Accident Association, 162 Wis. 474, 156 N. W. 482; Moses v. Ill. Commercial Men’s Association, 189 Ill. Ap. 440.

This provision of the policy being valid, appellant was entitled to rely upon it in defense of the suit, and the court erred in holding otherwise and striking out that part of the answer setting it up.

■Since the case appears to have been fully developed, and shows that there Avas no eye-Avitness to the transaction resulting in the death of the insured, except Giles, by whom it was alleged he “was accidentally killed by being shot with a rifle,” and refused to testify about the matter, as he had the right to do, on the trial, and there does not appear to be any reason for remanding the cause, the judgment will be modified in accordance with the stipulation or provision in the contract limiting the liability to the recovery of $100, and, as modified, will be affirmed. It is so ordered.


author: Mehaffy, J.

text:
    Feild v. Koonce.
    Opinion delivered January 14, 1929.

      Longstreth & Longstreth and Ernest Whitelcm, for appellant.

      Carmichael db Hendricks, for appellee.
   Mehaffy, J.

The appellants brought suit in the Pulaski Chancery Court against the appellees, alleging that James C. Ward died insane and intestate on the 19th day 'of June, 1927; that he had been legally adjudged insane July 5, 1891, and continued non compos mentis until death; that he acquired the property in controversy by inheritance, gift and purchase while he was insane, and that, while insane, he sold the property to Miss Mondschein, on the 8th of February, 1902, and that she sold the. property to the present owners, and that they executed a mortgage to J. M. Davis, trustee, for $5,000. Appellant alleged that all the purchasers were actually or constructively on notice of the in-competency of J. C. Ward, and -asked the cancellation of all the deeds and mortgages in favor of the heirs of J. C. War'd. They alleged that he gambled away the money he received when he sold the property.

Appellees answered, and admitted that Ward was adjudged insane in July, 1891, but that he was sane on February 8, 1902. It was alleged that Ward, in 1902, needed money, having mortgaged the property for $1,000, and that he sold said property for $2,000 cash, and the purchaser assumed the $1,000' mortgage debt and paid the taxes. It is alleged that the first purchasers lost money on the property — that is, they had to sell it, and received less for it than they paid Ward.

The case was tried in the chancery court on oral evidence and the following agreed statement of facts:

^ “It is agreed and stipulated by all parties hereto, that J. W. Ward died, leaving three children, to-wit, J. C. Ward, Lula Ward and Lila Ward Neal; that the deed records' of Pulaski County reflect the following conveyances after the death of the said J. C. Ward: October 29, 1900, Ralph Neal and wife, Lila, to Lula Ward and J. O. Ward, consideration $900; August 8, 1901, Lila Neal and husband to J. C. Ward, consideration $675; October 28, 1901, J. C. Ward, unmarried, to J. G. Leigh, trustee, deed of trust $1,000; Febrfiary 7, 1902, J. C. Ward, unmarried, to Amelia Mondschein, warranty deed, consideration $2,000; August 16, 1902, Amelia Mondschein to William Mondschein, consideration $4,000; July 17,1907, William Mondschein to George C. and Dora Koonoe; consideration $5,000. It is further stipulated and agreed that the probate records of Pulaski County, Arkansas, show that on the fifth day of July, 1891, the said J. C. Ward was adjudicated insane, and said records do not show any finding that he was restored; that the father, J. W. Ward, was appointed his guardian; J. C. Ward was released from the State Hospital for Nervous Diseases on the eighth day of January, 1892; that thereafter, to-wit, on the 15th day of April, 1897, his father died, and no other guardian was ever appointed for the said J. C. Ward; said probate records show also that on September 8, 1900; said J. C. Ward was accepted as a surety with another on the bond of the administrator of the estate of Adaline Ward; that on December 29, 1900; he was accepted as a surety with another on the bond of the administrator of the estate of Lula Ward. It is agreed that the above stipulation may be introduced and considered by the court as evidence in.this case. (Signed by all attorneys for all parties).”

When the above stipulation was filed, the appellants asked the court to declare that the burden of proof was on defendant to show that Ward was sane on February 8, 1902, at the time the deed was made. The court announced that it held the burden of showing that Ward was sane at the time of the execution of the deed to Mondschein was on the defendant claiming under said deed. The court further announced, however, that, finder the circumstances shown in the agreed stipulation of facts by counsel, the presumption of sanity would be raised, which would shift the burden, and that the burden was on the appellants to show at the time of the execution of the deed to Mondschein that Ward was of unsound mind.

A number of witnesses testified that they had known J. O. Ward and been intimate with him, and that they did not believe he was mentally normal at the time he executed the deed. Other witnesses testified that they had known Ward, and had dealt with him, and that he understood ordinary business transactions and dealings.

The undisputed proof shows that Ward was committed to the Insane Asylum on the 5th day of July, 1891, and that his father was appointed his guardian; that J. G. Ward was released from the State Hospital for Nervous Diseases on the 8th day of January, 1892, and that J. C. Ward’s father died on the 5th day of April, 1897, and that no other guardian was ever appointed for Ward; that J. G. Ward transacted his own business, and the property in controversy belonged to Ward’s father, and at his death it descended to his three children, J. C. Ward, Lila Ward Neal and Lula Ward. Lila conveyed her interest to Lula and J. O. Then Lula died, and Lila conveyed to J. C. the interest she inherited from her sister, Lula, thus placing- the entire title in J. 'C. Ward. The deed from Lila and her husband to Lula Ward was made on the 29th day of October, 1900, and on the 8th day of August, 1901, Lila and her husband made a deed to J. C. Ward for the interest inherited from Lila’s sister. On the 28th day of October, 1901, J. C. Ward executed a deed of trust to J. Gr. Leigh for $1,000, and on the 7th day of February, 1902., Ward sold the property to Amelia Mondschein. Ward was married on July 20, 1902. Mrs. Ward testified that she had known Ward about 18 months prior to her marriage. She also testified that they had tbe following children: James H. Ward, 24 years old; S. M. Ward, 23 years old; Alice Ward, 21 years old; Ralph Ward, 17 years old; Marvin Ward, 8 years old; Melba Ruth Ward, 5 years old.

The undisputed proof also shows that from the time he was released from the Insane Asylum, January 8, 1892, up to shortly before he died, in 1927, he managed his own affairs, and that his relatives, who now think he was insane, dealt with him as if he were capable of attending to business.

Appellant’s first contention is that the decree should be reversed because the lower court refused to hold that the burden of showing that J. C. Ward was of sound mind at the time of the execution of the deed rested upon the parties claiming under the deed. The chancellor, in fact, held that the burden was upon the person claiming under the deed, but that, under the circumstances shown by the stipulation and agreement of the parties, the burden shifted. In other words, the chancellor simply ruled that, in his judgment, the prima facie case made by showing that Ward had been adjudged insane was overcome by the agreed statement of facts, and that, so far as putting on the proof was concerned, the plaintiff should proceed with the proof, and there was no error in this ruling of the court. In the first place, cases appealed from the chancery court to this court are tried here de novo, and, where the decision of the chancellor is on a question of fact, the case will be affirmed if the finding of the chancellor is supported by a preponderance of the evidence. In a trial before a jury it is proper to instruct them as to the burden of proof, because they are the triers of the facts, and they are required to return a verdict in favor of the party who has the preponderance of the evidence in his favor. And they are required to return a verdict against the party on whom the burden of proof rests if the evidence is evenly balanced or preponderates in favor of the other party.

The statute provides that the party holding the affirmative of an issue must produce the evidence to prove it. Section 4113, Crawford & Moses’ Digest.

Section 4113 of Crawford & Moses ’ Digest provides that the burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.

In this case the court held that, if no evidence was given on either side, the burden rested upon the party claiming under the deed to show that Ward was sane at the time it was made. But evidence had been introduced; the stipulation had been agreed to and filed as evidence in the case, and the court held that that was sufficient to overcome the prima facie case of insanity. However, the burden of proof in a chancery case, so far as the procedure is concerned, is resorted to for no purpose other than to determine who shall proceed with his proof. And, even if the chancellor should require the wrong party to proceed first, it would not affect the decree or the trial in this court, unless it manifestly resulted in prejudice to the other party. This is true because the cases are tried here de novo, and if the chancellor required the wrong party to proceed first and then found in accordance with the preponderance of the evidence, the decree would be affirmed anyway.

Appellant cites authorities in support of the rule that contracts of insane persons are void, and also that when one is adjudicated insane the presumption is that the insanity continúes. This court has held that a contract made by an insane person is not void, but void- ' able. We think the proof conclusively shows that for a number of years after Ward had been adjudged insane he was sane, and for 25 years took no steps whatever to avoid his contract.

The two questions involved in this case are, first, was Ward sane or insane at the time he made the deed to Mondschein? If he was sane, of course that ends the controversy. If he were insane at that time, then the question would arise whether he recovered and lived a number of years here without taking any steps to rescind the contract. Some witnesses testify that Ward was insane. 'Some of these witnesses, however, the interested ones, so conducted themselves prior to, at the time of, and after the execution of the deed, as to contradict the testimony that he was insane at the time.

In Moore on Facts, vol. 2, § 1136, we find the following, which seems to be a correct statement of the law, supported by the great weight of authority:

“In one of the master productions of his luminous intellect, Lord Stowell referred to the testimony of a witness who, as he said, was totally unimpeached as to general character, and therefore, a priori, entitled to be fully credited, and then proceeded as follows: ‘However, it is a good safe rule, in weighing evidence of a fact, which you cannot. compare with any other evidence to the same fact, to compare it with the actual conduct of the persons who describe it. If their conduct is clearly such as, upon their own showing, it could not have been, taking the fact in the way they have represented it, it is a pretty fair inference that the fact did not so happen. If their action, at the very time that the fact happened, represents it one way, and their relation of it, at a great distance of time, represents it another way, there can be no doubt which is the authentic narrative, which is the naked truth of the matter.”

In another case the same great magistrate said: “I am not deaf- to the fair pretensions of human testimony, but, at the same time, I cannot shut my senses against the ordinary course of human conduct. 'Conduct of a witness clearly inconsistent with his testimony and not satisfactorily explained is one of the most fatal species of impeachment; because the trier of. facts is thus justified in disbelieving the testimony without in any degree" reflecting upon the integrity of the witness, who, it may be presumed, is a victim of the proverbial fickleness.of memory — especially after considerable time has elapsed —or of various perturbing psychological influences which affect men of the highest probity as well as those of indifferent moral natures, and operate with peculiar force if the witness is interested or otherwise biased.”

As we have already said, the above statement of the law is supported by authority, and many decisions are cited under the above section. Chamberlayne on Evidence, voh 2, discussing_ admissions by conduct, among other things says: “They are, perhaps, in the popular sense, ‘admissions’ when the act done is.inconsistent with the present contention of the actor, and so tend to weaken the effect of his direct evidence. ’ ’

Acts done by a party suggesting an inference that his present contention is false or an exaggeration, or is an afterthought, may be shown by the adverse interest. Either party may, in like manner, prove that the other has failed to assert a claim which he now makes, has recognized the validity of a demand which he at present disputes, or in other particulars occupied in the past a position inconsistent with his present one.

The 'brother-in-law of Ward went with him, when he was married, on July 20,1902. He was to be married, and did marry a girl about 17 years of age. This was quite a while after he had been adjudicated insane. His sister deeded him her interest in the property, which she certainly would not have done if she had believed him to be insane, and he and his wife lived together, raised a family, and, for more than 25 years after the execution of the deed sought to be set aside, treated him' as if lie were sane. They were ¡bound to know that he executed a mortgage on it; that that mortgage became due, and he was unable to pay it, and that he sold it; and yet no suggestion was ever made by any of the interested parties at any time that the deed was void or that he was insane at the time he made it. If he was insane at the time he inherited the property, his sister is in the attitude of conveying her interest to him and putting it in his power to squander it.

The proof also shows that there was no advantage taken of him; that the price paid for the property was fair. In fact, the purchasers lost money; sold it for less than they had actually been out on it. And, while the fact that Ward was adjudiéated insane and stayed about six months in the insane asylum raises a presumption or inference that his state of mind continued, yet this presumption does no.t prevail where the contrary is made manifest by the conduct of the party and all of his relatives and friends. An adjudication of insanity is only prima facie evidence, as held toy this court, and we think the facts in this case overcome this presumption, and show clearly that, at the time of the execution of the deed, Ward was mentally capable of executing it.

The Virginia court has said: “To this overwhelming array of facts and circumstances the appellee opposes, first, the fact that a committee was appointed for Joseph G-. Rutledge in 1866; and, second, the testimony of a number of witnesses who testify to his mental incapacity, of whom few, if any, had had such opportunities for knowing accurately his capacity, and some of those who testified to his incapacity *even judged only from his appearance and the general reputation in the neighborhood as they understood it. If any inference of continued mental incapacity must toe deduced from the adjudication of the county court in 1866, and the appointment then of Gr. D. Thomas as his committee, such presumption must toe regarded as entirely worthless, from the fact that when, in 1871, Joseph Gr. Rutledge, by his counsel, Gr. Gr. Junldn, Esq., moved to revoke the powers of Gr. D. Thomas as such committee pending which motion Mr. Thomas came into court and tendered his resignation, which resignation, for reasons appearing to the court, was accepted, the said court did not appoint any successor to Mr. Thomas as such committee, but permitted Joseph Gr. Rutledge to resume the custody and control of Ms own property from that time until November, 1881. It was during this- long period of freedom from the control of the court, in which Joseph Gr. Rutledge enjoyed without restraint all the rights of a citizen, that the transactions assailed in this suit were had. * * * Nor was any fraud or unfair dealing or anything proved for which the contracts, or either of them, should be invalidated.” Miller v. Rutledge, 82 Virginia 863, 1 S. E. 202.

In the instant case Ward’s father was appointed his guardian. He afterwards died. No request was ever made for the appointment of another guardian. He was permitted, not only by the court, but by his relatives, who knew all about him and were with him constantly, to conduct his affairs without hindrance or suggestions from them. His relatives conveyed property to him; gave him control of it; he was permitted to marry and raise a family, and this ‘course of conduct on the part of the wife and relatives continued for many years, with the full knowledge, so far as his relatives are concerned, of the fact that he had conveyed the property, and his purchaser conveyed it to others, and valuable improvements have been made, and it would be difficult to believe that his relatives and friends would have thus conducted themselves if they believed at the time that he was insane.

The decree of the chancery court is supported by a preponderance of the evidence, and is therefore affirmed.


author: Kirby, J.

text:
    Sanford v. Bell.
    Opinion delivered January 14, 1929.

      C. E. Yingling, for appellant.

      John E. Miller, for appellee.
   Kirby, J.

Appellant, an owner of real property included within the boundaries of Street Improvement District 13 in Searcy, Arkansas, brought this suit to enjoin the commissioners of said district from issuing bonds incumbering the real property and proceeding with making the improvement authorized by the creation of the district, the paving of Pleasure Street from the west corporate limits of the city to the intersection of Spring Street with Pleasure Street, in said city.

The district was alleged to be void, because the city had already, upon the petition signed by more than ten property owners asking that the territory described therein be laid off into an improvement district, duly passed an ordinance creating said territory into Street Improvement District' No. 12, for making the identical improvement of Pleasure Street authorized to be made and provided for by the creation of said District 13.

After said District 12 was created, the city council, upon a petition of twelve real property owners, organized said District 13, which included all this territory, and more than was formerly included in District 12. It only included the territory lying within one-half block on either side of and immediately adjacent to this street to be improved, while 13 included a block of territory on each side of said Pleasure Street.

The commissioners of District 13 answered, admitting they were proceeding, in the discharge of their duties, to issue bonds to obtain funds for making the improvement authorized by the creation of the district; also that the city council did, by ordinance duly passed on May 14, 1928 (No. 179) lay off the territory now included in District 13, into District No. 12, for making the same improvement. Denied that District 13 was void. Alleged that, after District 12 was created and before the second petition was filed asking that the improvements as contemplated be made, it was ascertained by the proponents of District 12 that the total assessed value of the property situated in the district as created was only $30,070, and the cost of making the improvement as contemplated was $49,418.20,- exclusive of interest, an amount far in excess of the assessed value of all the real property in the district, and that the improvement could not be made by the district as laid out. Thereupon the same persons who were interested- in having the street improved filed a petition on June 11,1928, with the recorder, asking that the territory that had been included in District 12, and the additional territory, be organized into another improvement district of such extent as to insure the making of the desired improvement; that the same improvement was contemplated in each district, and the proponents of both districts desiring it should he made, and -because it had been ascertained that the cost of paving the street exceeded the assessed valuation of the property in District 12, making it necessary to create District 13; that District 12 was void because of that fact, and so understood to be by the city council and the proponents of District 12 in creating District 13. That District 13 was legally organized, and the proponents of District 12 had abandoned same, not filing within the three months the second petition asking that the improvement be made as contemplated in the ordinance creating it. That no other proceedings had been taken by any one to make the improvement in District 12, and more than three months had passed since the passage of ordinance 179 authorizing it.- That District 13 had been legally organized, and the commissioners are now engaged in carrying out the purpose and will proceed to make the improvement as therein contemplated by District 12 unless restrained, the improvements contemplated in District 13 being the same in every detail as were intended to be made by District 12.

A general demurrer was filed to the answer, with prayer that District 13 be declared void and the commissioners permanently enjoined from making the improvement contemplated or from issuing bonds incumbering the real estate therein, and for costs, etc.

The cause was submitted to the chancellor in vacation, the demurrer to the answer was overruled, and, plaintiff declining to plead further, the complaint was dismissed for want of equity, and this appeal is prosecuted from that decree.

Appellant owned property in District 13 and also in old District 12, and sued for his own benefit and all other property owners in District 13. Appellant insists for reversal that the court erred in holding, that the city council had authority to create District 13, including the territory embraced in District 12, before the expiration of 90 days allowed them for filing the second petition asking that the improvements be made as contemplated by the ordinance creating it.

Although it is true that the ordinance creating District 13 was -passed before the expiration of three months from the date of the -adoption of the ordinance 179 creating District 12, it is also conceded to be true that no second petition asking that the improvement be made as contemplated in said ordinance creating District 12 was filed during that term, or at all, and the 90 days in which any such petition could be filed had expired before this suit was brought.

It was -alleged in the answer of the commissioners and admitted by the demurrer that, after District 12 had been created by ordinance 179, and before the filing of the second petition asking that this contemplated improvement be made, it was ascertained by the proponents of the district that the total assessed value of the real property within said District 12 as laid out was only $30,070, while the cost of making the improvement as contemplated and described in the petition for an ordinance creating the district would be $49,418.20, exclusive of interest charges, an amount greatly in excess of the assessed valuation of the property in the said district, and the improvement could not therefore be made. No board of improvement had been appointed by the council, it is true, but, when it was ascertained that the assessed value of the real property in District 12 was far less than the cost of the contemplated improvement, then the parties promoting District 12 joined in the movement and procedure for the creation of District 13, including, in addition to the territory that had been included in District 12, sufficient territory to enable the new district to make the identical improvement contemplated in the creation of District 12, which was necessarily abandoned. All the parties active in the creation of each of the districts were interested in having made the same improvement contemplated in 'both districts, and all knew that it could not be done by District 12, the assessed value of the property included therein being far less than the cost of the improvement contemplated, which fact was also known to the city council in the creation of enlarged District 13.

The law provides that no single improvement shall be undertaken by any district, created as this was, which alone will exceed fifty per centum of the value of the real property in the district as shown by the last county assessment, and, although it allows an improvement to be made, the cost of which shall not exceed one hundred per centum of the assessed value of the property in the district when petitioned for by 75 per cent, in value of the property owners, no authority is given for creation of an improvement district to undertake or make an improvement which, will exceed the estimated value of the property in the district from which alone the money is to be collected for making the improvement. Section 5G66,0. & M. Digest, as amended by Acts of 1925, Castle’s Supplement, 548. Gault v. Nolan, 177 Ark. 117, 5 S. W. (2d) 932.

It is not contended that Improvement District No. 13 was not otherwise duly organized, and it is shown to have been regularly constituted and authorized to proceed with the construction of the improvement, as the lower court correctly held.

The court did not err in dismissing the complaint for want of equity, and the decree is affirmed.


text:
    Southwestern Bell Telephone Company v. Bagley & Company.
    Opinion delivered January 14, 1929.

      Edward B. Downie, for appellant.

      Bogle & Sharp, for appellee.
   Mehaffy, J.

Bagley & Company, the appellee, is engaged in the cotton business in Memphis, Tennessee. L. A. Waddell was employed by appellee as a cotton buyer for its Memphis 'branch. On the 30th day of September, 1926, Waddell, representing Bagley & Company in Arkansas, purchased 132 bales of cotton from different parties in Cotton Plant, Arkansas, and, late the same afternoon, called the central office of the appellant at Brinkley, and told the operator that he wanted to talk to A. T. LeFils at Memphis. After making repeated inquiries, Waddell was informed by the operator that he was connected with Mr. LeFils’ home, but that Mr. LeFils was out, and that Mrs. LeFils was on the line. Waddell agreed to talk with her, and did talk with some woman who said she was Mrs. A. T. LeFils,' and would convey to her husband the information that Waddell wanted him to have.

Waddell told her that he had purchased 132 bales of cotton, and she said she would convey the information to her husband. Waddell relied on the truthfulness of the statements made to him by appellant’s operator at Brinkley that he was connected with the home of LeFils and talked with Mrs. LeFils. He did not have an opportunity to talk with LeFils, and did not talk with him until the evening of the following day, after the market had closed. He then learned that appellant’s employees had not connected him with LeFils’ home, and that he had talked to some other party.

If Waddell had talked to Mrs. LeFils or LeFils, and given him the information that he had purchased 132 bales of cotton, LeFils would have sold a similar number of bales on the future market the morning of October 1. He could, on October 1, have sold 132 bales of cotton for 14.25 cents per pound, but, because of his failure to communicate with LeFils at that time, he was forced to sell for 13.53 cents per pound, the market having declined.

Appellee alleges that, on' account of defendant’s carelessness and negligence, it has been damaged 72/100 cents per pound on 132 bales, a total of $475. Appellee’s contention is that he lost the amount of money sued for, not on the bales of cotton that he actually bought in Arkansas, but because he did not buy futures on October 1, and that he lost the difference between the price on October 1 and the price at the time he got the information; that the damage was caused by the telephone company negligently giving him the wrong party.

Waddell testified that he lives at Brinkley, and was a cotton buyer for Bagley & Company, and that Bagley & Company’s main office is in Nashville, Tennessee; that he bought the 132 bales of cotton, as alleged in the complaint, and he was in the habit of telephoning to the Memphis branch when he would buy cotton, so that the Memphis office could sell cotton against it — in other words, hedge. He testified that they would have sold cotton on the board, and would not have sold it for delivery; would just sell at future market, and if the price went up he would be all right, and if it went down, he would take a loss on that purchase. He did.not sell the 132 bales that he had purchased, but what they wished to do was to sell on the board 132 bales to protect the cotton that witness had boug’ht. It was never the intention to deliver that cotton. It was merely sold on the board. After they would sell this on the board, then, when the actual cotton was sold, he would take up his hedge. On that particular business, if he sold the 132 bales, he did not intend to deliver any actual cotton. He would deliver against his .selling. When selling on the 'board, he doesn’t intend that there is going to be an actual delivery.

There was considerable evidence about the negligence of the appellant company, and about the manner in which cotton was 'bought and sold, and the damages that resulted on account of the negligence of the appellant in this case. We do not think it necessary to set out any of that testimony, for- the reason that the appellee itself states that the telephone-communication was desired for the purpose of selling futures.

Appellant submits four reasons why the judgment should be reversed. First, it is contended that the damages are special, and appellant had no notice or knowledge of the circumstances, etc. It also contends that appellee was guilty of contributory negligence; and also that, under the rule of the company, it does not assume the responsibility of insuring that the party answering the telephone is the party called for. We do not decide any of these questions, for the reason that, according to appellee’s own showing, this was a gambling transaction and is prohibited by onr statute, and for that reason no recovery can be had in this case.

Section 2652 of 'Crawford & Moses ’ Digest prohibits maintaining an office for dealing in futures, and § 2653 of Crawford & Moses ’ Digest reads as follows:

“Every contract or agreement, whether or not in writing, whereby any person or corporation shall agree to buy, or sell and deliver, or sell with an agreement to deliver, any wheat, cotton, corn, or other commodity, stock, bond, or other security, to any person or corporation, when in fact it is not in good faith intended by the parties, or either of them, that an actual delivery of the article shall be made, is hereby declared to be unlawful, whether made or to be performed wholly within this State or partly within and partly without the State; it 'being the intent of this act to prohibit any or all contracts and agreements for the purchase of or sale and delivery of any commodity or other thing of value on margin, commonly called dealings in futures, when the intention or understanding of the parties or either of them is to receive or pay the difference between the ag’reed price and the market price at the time of settlement, and any person violating the provisions of this section, for each transaction shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than five hundred nor more than five thousand dollars, and upon conviction for a second offense, in addition to said fine, the defendant shall be imprisoned in the county jail not exceeding twelve months. ’ ’

The appellee, however, contends that the cases of Harris v. Western Union Tel. Co., 136 Ark. 63, 206 S. W. 52, and Western Union Tel. Co. v. Osborne, 136 Ark. 68, 206 S. W. 54, are cases where the facts are similar to the facts in the present case. Or rather, he contends that the facts in the instant case bring it clearly within the rule announced by this court in the two cases above mentioned.

In the case of Harris v. Western Union Tel. Co., 136 Ark. 65, 206 S. W. 52, this court said: “The testimony affirmatively shows that actual delivery of the corn bought and sold was contemplated by the parties, and the transactions set out above were evidenced by elevator receipts for corn duly assigned.”

In the instant case the testimony affirmatively shows that there was no actual delivery of the cotton contemplated. On the contrary, the appellee’s witnesses themselves and the purchaser, Mr. Waddell, testify that there was no intention to deliver any actual cotton, but that this was merely selling futures in order to hedge or protect themselves on the purchase of the 132 bales. No one claims that there was any actual delivery of cotton contemplated, but, on the contrary, the undisputed proof shows that the intention was not to deliver any actual cotton. It was therefore a transaction to sell in violation of the statute. The statute says that every contract whereby a person shall agree to buy or sell and deliver, * * * when in fact it is not in good faith intended by the parties, or either of them, that an actual delivery of the article shall be made, is hereby declared to be- unlawful, whether made or to be -performed wholly within this State or partly without the State. The statute further provides: “It being the intent of this act to prohibit any or all contracts and agreements for the purchase or sale and delivery of any commodity or other thing of value on margin.”

The appellee’s witnesses all agree that this was on margin; that it was dealing in futures, the very thing prohibited by the statute.

This court has said, in discussing the above statute :

“A mere message containing merely a narrative of a past sale would not be either within the spirit or the letter of the statute, for it would not relate to an unlawful sale merely by giving information that there had been such a transaction. But, where the message constitutes an acceptance or offer, it necessarily relates to a purchase or sale, whether there be a consufnmation of the deal or not.” State v. Western Union Tel. Co., 160 Ark. 444, 254 S. W. 838.

In the instant case appellee’s witnesses all testify that there was to be no delivery, and they claim damages solely on the ground that the failure to connect them with the right party prevented them from buying futures. One cannot recover damages because another refuses to do what the statute forbids.

There seems to be some conflict in authority with reference to the liability of transmission companies, especially where there is no statute on the subject. The following is a fair statement of the law:

“While a telegraph company may not refuse to transmit or deliver messages relating to ‘futures’ or similar gambling transactions, or escape a statutory penalty for failing to transmit such messages, yet the amount of damages to be recovered for an error made in the transmission of such are only nominal, and cannot exceed the amount paid for their transmission. There is a distinction between real gambling and dealing in what is commonly called ‘futures;’ and this distinction gives those dealing in the latter a right similar to that enjoyed in the transmission of ordinary messages. It is presumed in the ‘future’ contracts that there is to be a delivery of the goods; but in gambling there is a wager outright for a loss or a gain. These companies are under no obligations to accept messages for transmission which are purely gambling messages, for to do so would be contrary to law, good morals, and public policy.” Jones on Telegraph and Telephone Companies, § 429.

The distinction made in the above text between messages as to real gambling and dealing in futures is put on the ground that, in buying futures,, there is an intent to deliver the property bought; but in the instant case all the proof shows that this was a gambling contract, pure and simple.

The Supreme Court of Pennsylvania, discussing- this question, said:

“But, when ventures are made upon the turn of prices alone, with no bona fide intent to deal in the article, but merely to risk the difference between the rise and fall of the price at a given time, the case is changed. The purpose then is not to deal in the article, but to stake upon the rise or fall of its price. No money or capital is invested in the purchase, but so much only is required as will cover the difference — a margin, as it is figuratively called. Then the bargain represents not a transfer of property, but a mere stake or wager upon its future price. The difference requires the ownership of only a few hundreds or thousands of dollars, while the capital to complete an actual purchase or sale may be hundreds or thousands or millions. Hence ventures upon prices invite men of small means to enter into transactions far beyond their capital, which they do not intend to fulfill, and thus the apparent business in'the particular trade is inflated and unreal, and, like a bubble, needs only to be pricked to disappear, often carrying down the bona fide dealer in its collapse. Worse even than this, it tempts men of large capital to make bargains of stupendous proportions, and then to manipulate the market to produce the desired price. This, in the language of gambling speculation, is making- a corner — that is to say, the article is so engrossed or manipulated as to make it scarce or plenty in the market at the will of the gamblers, and then to place its price within their power. Such transactions are destructive of good morals and fair dealing and of the best interests of the community. If the article be stocks, corporations are crushed and innocent'stockholders ruined to enable the gambler in its price to accomplish his ends. If it be merchandise, e. g., grain, the poor are robbed, and misery engendered.” Kirkpatrick v. Bonsall, 72 Penn. 155.

Not only are the statements above copied from the Pennsylvania case true, but to hold that a person seeking to transmit messages for the purpose of dealing in futures could recover damages for failure to transmit such messages would be to aid and assist in the gambling transaction. It would be aiding and assisting to violate the statute.

In the instant case, to hold that the appellee could recover would be, in effect, to hold that any one in Arkansas could require a transmission company to receive and transmit messages dealing in futures, in violation of the statute, and that is one of the things the Legislature intended to prohibit.

This court said, many years ago, when the statute was nothing like as plain and comprehensive as it is now:

“'Certainly the Legislature did not intend to impose any restrictions upon legitimate commerce, but only to destroy the parasite that infests it. Contracts for future delivery, if entered into in good faith and with an actual intention of fulfillment, are as valid as any other species of contract. A farmer may sell and agree to deliver his wheat or his cotton for a stipulated price before it is harvested. Nay, one may sell goods to be delivered at a future day which he has not in actual or potential possession, but which he intends to go into the market and buy. But this is not what is commonly known as dealing in futures. This phrase has acquired the signification of a mere speculation upon chances, where the grain, cotton or stocks dealt in exist only in imagination, and where no delivery is contemplated, but the parties expect to settle upon the difference in the market.” Fortenbury v. State, 47 Ark. 188, 1 S. W. 58. See also Huff v. State, 164 Ark. 211, 261 S. W. 654; William W. Cohen & Co. v. Austin, 172 Ark. 723, 290 S. W. 579.

Our statute expressly forbids dealing in futures. The testimony in this ease shows that it was not the intention of the parties to sell cotton, and that it was dealing in futures, because there was no intention to deliver, and this is the thing prohibited by the statute. No person can be required to do what the statute prohibits, and no person is liable in damages to another if he refuses to do what the statute makes a crime.

The appellee referred to the case, as we have already said, of Western Union Tel. Co. v. Osborne, 136 Ark. 68, 206 S. W. 54. In that case there was no wager'— no dealing in futures, and no violation of the statute. But that was a contract for furnishing market reports. Such a contract is not prohibited, and we therefore think that that case has no application here.

In the case last referred to, the court said that it was the foundation of the plaintiff’s cause of action that he purchased 40 bales of cotton on the basis of the market report erroneously furnished him by the defendant, to his loss and damage. The company having agreed to furnish cotton market reports, was required to do so. The court further said that plaintiff was in the business of buying cotton and selling it again at a profit; that the defendant knew this fact, and made a contract with him to furnish the market reports daily, knowing that these reports would be used by him as a basis for buying cotton. It is no violation of the statute to furnish market reports, and in the last case referred to, and relied on by appellee, there is nothing to indicate that there was to be any gambling or dealing in futures.

Having reached the conclusion that this suit is based on the negligence of appellant in failing to give the appellee the right, party, thereby enabling it to deal in futures, it becomes unnecessary to discuss or decide the other questions discussed by counsel. The transaction or contract that the appellee desired to enter into or make was dealing in futures, in violation of the statute. And, as the Pennsylvania court has said, such transactions are destructive of good morals and fair dealings and of the best interests of the community.

The judgment of the circuit court will therefore be reversed, and the cause dismissed.