author: Humphreys, J.

text:
    Hawkins v. Bradley.
    Opinion delivered February 4, 1929.

      Wallace Townsend, for appellant.

      Owens & Ehrman, for appellee.
   Humphreys, J.

Appellees brought suit against appellant in the chancery icourt of Pulaski County to enjoin him from filing a lien for material against the south 47 feet of the north 94 feet of lots 13 and 14, in Newton Addition to the city of Little Rock, Arkansas, valued at $813.60, which he had furnished and which was used in the construction of a residence thereon. It was alleged that appellant had executed a builder’s bond in the sum of $2,000 to appellees for the construction of the residence, conditioned that their contractor, M. O. Gardner, should perform all the conditions of the contract and pay all bills for labor and material, and, in addition, had' waived the right to file a lien against the property for the value of the materials to be furnished by him.

Appellant filed an answer, admitting the execution of the builder’s bond and written waiver to file a lien for material to be furnished by him, but alleged appellees had breached the bond in that, without his knowledge and consent, they had made a material change in the contract for the construction of the house with M. O. Gardner, their contractor, by having the house extended four feet in length, which added materially to the cost of the house, and operated to relieve him as surety on the builder’s bond; and further alleged that his waiver of a lien was conditioned upon agreement for him to furnish all material for the construction of the house, which appellees breached by failing to permit him to furnish everything, which operated to relieve him from the waiver. Appellant also filed a cross-complaint, alleging that the balance of $813.60 was due him for materials furnished to construct the residence, and prayed for a lien and foreclosure of same against the property.

Appellees filed a reply, denying that they breached the bond or the 'conditions in the waiver to a lien, and also denied that appellant was entitled to a lien for materials furnished to construct the residence.

■ The cause was submitted upon the pleadings and testimony introduced by the parties, from which the court found that appellant was not entitled to a lien because he executed the bond and written waiver of the lien, and dismissed the cross-complaint for want of equity, from which is this appeal.

The facts reflected by the record are in substance as follows: The Bradleys owned the lot, upon which they desired to build a residence suitable to the needs of Mrs. Beauchamp, in contemplation of selling same to her. M. O. Gardner, the contractor, was building a house at the time for Mrs. Dever, in the same neighborhood, which it was thought would suit Mrs. Beauchamp. Appellant was surety on Gardner’s builder’s bond to Mrs. Dever. He was in the lumber business, and selling material to Gardner for the construction of several houses, and in this way was interested in getting building contracts for Gardner. Gardner had drawn the specifications and rough plan for the Dever house. He was not an architect.

The specifications of the Dever house shoAv that it was 28 feet Avide by 42 feet long. The sizes of the rooms are designated on the sketch or plan, but not in the specifications. The dimensions of the rooms were designated on the sketch or plan before the contract to build the Bradley house and the bond were signed. The Dever house was in the course of construction, and was actually 46 feet and 1 y2 inches long. L. H. Bradley, M. O. Gardner and appellant called on Mrs Beauchamp at her apartment and showed her the Gardner sketch or plan of the Dever house She liked the plans, except the front. She had in mind the front of another house, and she preferred it if it could be applied to the DeArer plan. iShe was assured that it could be. 'They then took her to see Mrs. Dever’s house. It was determined that this change could be made, and the suggested changes in the front were marked on the sketch or plan. The sizes of the rooms were also agreed upon and noted in pencil on the sketch or plan, at Mrs. Beauchamp’s. apartment, or when they inspected the Dever house. The outside measurements of the Dever house were not mentioned when the parties met at either- place. After the changes were made, the plans and specifications of the Dever house were handed to L. H. Bradley by Gardner to use in the preparation of the contract for constructing the Bradley residence. Bradley added the following’ statement to the specifications:

“The house is to be in all essential details a duplicate of one being built for A. G. Dever on lot 13, in block 22, Newton Addition, except where differently noted on the plans and specifications.”

The Dever plan and specifications, including this statement, were incorporated in the contract which the Bradleys made with Gardner to build their residence. The contract and bond were signed on October 5, 1927, and on the same day appellant executed and delivered the following release for a lien against the building to the Bradleys:

“We agree to furnish everything but labor for the construction of the brick veneer residence to be built by M. O. Gardner and L. H. and Brooks Bradley, on lot adjoining 2108 North Van Burén Street, immediately south, and waive any liens on same when contract made with Gardner is fulfilled.

“Hawkins Lumber Co.

“L. M. Hawkins.”

On October 8, three days after the contract and bond for a lien were executed, at Gardner’s suggestion,, in the absence of appellant, Bradley and Gardner stipulated that the length of the residence should be changed from 42 feet to 44 feet. After the construction of the Bradley residence was begun it was discovered that, in order to construct the rooms of the dimensions designated on the plans, the house Would have to be extended in length to about 46% feet. Gardner thereupon instructed the foreman to extend the length of the house a sufficient distance to build in the rooms according to the dimensions noted on the plan. When extended, the house was 46 feet 5% inches long, or 4% inches longer than the Dever house.

Appellant testified that he did not discover that the length of the Bradley house had been changed until nearly completed. He was at both houses frequently during their construction. The Bradleys paid the full contract price to Gardner during the construction of the house. The plumbing and wiring were sublet to other parties, and the payment of the plumbing bill was authorized by appellant. Gardner lost money on the job, and did not have enough to pay appellant for all materials furnished by him. Appellant requested the Bradleys to help him g-et his money out of Gardner. After the completion of the building, appellant and Gardner met in Bradley’s office for the purpose of going over the account and settling. At the conclusion of their interview, appellant took notes from Gardner for $1,000, after he failed to get an assignment of an out-of-town contract from him.

Appellant’s first contention for a reversal of the decree is that the specifications were conclusive with reference to the length of the house that was to be constructed for the Bradleys. The specifications provided that the outside dimensions of the house should be 28 feet wide by 42 feet long, and, by subsequent stipulation, 44 feet long. It is argued from this premise that a material change was made in the. length of the house without appellant’s consent, which operated to release him from the undertaking in the bond. This argument would be sound if, as a matter of law, this provision expressed the intention of the parties, although in open conflict with another provision in the specifications and with the dimensions of the rooms designated on the plan. The other provision in the specifications 'with which this provision conflicted was to the effect that the house should he in all essential details a duplication of the Dever house. It also conflicts with the dimensions of the rooms marked on the sketch or plan, because the undisputed testimony shows that rooms of the dimensions specified could not be built within the length space of either 42 or 44 feet. The rule is that, where a contract contains conflicting provisions, resort must be had to extraneous testimony to ascertain the intention of the parties. According to the weight of the oral testimony, the parties contracted .with reference to the dimensions of the rooms noted on the plan for the Dever house and with reference to the Dever house in all essential details. In negotiating, the dimensions of the rooms were fixed, ■but nothing' was said at all about the outside dimensions of the house. It is apparent that the outside measurements of 28 feet by 42 feet were inserted in the contract through error by copying the measurements from the Dever specification without giving the matter a thought. If this provision in the contract is stricken out (and it should be because erroneously included), the conflict between the provisions in the specifications and plan will be eliminated, and will reflect the intent of the parties according to the weight of the oral testimony. There is little or no difference in the length of the two houses as built. The Bradley house is only 4y2 inches longer than the Dever house. As there was no material change after the contract and bond were executed, the immaterial change will not operate to release appellant from his obligations under the bond.

Under this interpretation of the contract it is unnecessary to discuss the next contention of appellant for a reversal of the decree, to the effect that he has a right to file a lien for his claim against the property because the condition of the waiver was broken in failing to allow him to furnish all the material for the building. The purpose of the bond was to protect the house from liens for material furnished, and appellant, being the surety in the bond, is bound according to its purpose. Under the terms of the bond it was and is his duty to pay for all the material used in the construction of the house.

Appellant’s last contention for a reversal of the decree is that the court overruled his motion to reopen the case to enable him to show definitely that the construction of the Dever house had not progressed sufficiently, at the time the contract and bond for the Bradlej^ house were signed, to determine the length space of the Dever house, as a basis for the length space of the Bradley house. The motion was not filed until after the adjournment of the term at which the decree was entered. The motion did not contain the necessary allegations to reopen the case after the adjournment of the term. Section 6290, Crawford & Moses’ Digest. The motion fails to set np sufficient facts to reopen the case upon a hill of review under the chancery practice. Felker v. Rice, 110 Ark. 70, 161 S. W. 162.

No error appearing, the decree is affirmed.


source: Caselaw Access Project

author: Humphreys, J. Humphreys, J.,

license: Public Domain

text:
    Bank of Shirley v. Bonds.
    Opinion delivered February 4, 1929.

      Brundidge & Neelly, for appellant.

      Opie. Rogers and Garner Fraser, for appellee.
   Humphreys, J.

Appellant brought this suit against appellees in the chancery court of Van Burén County, upon several notes; also to set aside and cancel two deeds to certain real estate which S. S. Bonds made to his son, R. J. Bonds, and a mortgage conveying said real estate so conveyed from R. J. Bonds to the Van Burén County Bank upon the allegation that they were without consideration and executed for the purpose of defrauding appellant in the collection of said no'tes. Ancillary remedies of lis pendens, attachment and garnishment were invoked to reach all other personal and real property alleged to belong to the Bonds. A writ of garnishment was served upon the Van Burén County Bank, seeking to impound any funds S. S. Bonds might have on deposit. A receiver was appointed, on application af appellant, to take charge of the real estate conveyed by 'S. S. Bonds to R. J. Bonds.

Answers were filed admitting the execution of the notes, except one for $2,000, and pleading full payment of the indebtedness evidenced by the notes. The Bonds denied that the two deeds were voluntary and executed for the purpose of defrauding appellant in the collection of its indebtedness, and the Van Burén County Bank and R. J. Bonds denied that the mortgage from R. J. Bonds to it was executed without consideration and for the fraudulent purpose of defrauding appellant in the collection of said indebtedness. The grounds alleged for the attachment were also controverted. The Van Burén County Bank answered, in the garnishment proceeding, that it only had in its possession eighty-eight cents belonging to S. S. Bonds.

The cause was submitted to the court upon the pleadings and testimony, which resulted in the finding that there were no grounds for the issuance of attachment or garnishment, and decreed a dismissal thereof; also that the two deeds from S. S. Bonds to R. J. Bonds and the mortgage from R. J. Bonds to the Van Bnren County Bank were not fraudulently executed, and dismissed the complaint for the want of equity, attacking them. The court also found that S. S. Bonds signed the $2,000 note, and that he was indebted to appellant on the several notes in the sum of $2,672.59, after allowing some of the credits and disallowing others claimed by him, and rendered judgment in favor of appellant against him for said amount. The court also found that there were no grounds nor necessity for the appointment of a receiver, and that said receiver should be discharged; and that one of the appellees, R. J. Bonds, was damaged by the wrongful appointment of such receiver in the sum of $250, the rental value of the lands over which the receiver was appointed; that said sum of $250 should be offset against two of the notes sued upon which were signed by the said R. J. Bonds, and that, after striking a balance, appellant owed R. J. Bonds on account of said damages the sum of $111.99, and rendered judgment in his favor against appellant for said amount. Exceptions to the adverse findings against appellant and appellees were made by the respective parties, and appellant prosecuted a direct and appellees a cross-appeal to this court.

Appellant contends for a reversal of the decree in so far as adverse to it and a modification thereof so as to conform to its contentions, upon the following grounds:

(1). Because the court erred in allowing damages in the sum of $250 to R. J. Bonds on account of the appointment of a receiver to take charge of lands conveyed to him by S. S. Bonds. (2). Because the court erred in allowing S. S Bonds credit for $202.50 and $582.50 on certain checks which he had deposited with appellant and which were known as the Grilmore and G-ammill checks. (3). Because the court erred in allowing damages for cottonseed purchased from appellants by the Bonds. (4). Because the court erred in refusing to grant judgment against the Van Burén County Bank in the garnishment' proceedings.

(1) . ’ Appellant cites the case of Riner v. Ramey-Milburn Company, 166 Ark. 221, 265 S. W. 963, in support of its first contention, to the effect that the trial court erred in allowing R. J. Bonds $250 on account of the wrongful appointment of a receiver to take charge of his lands. It is not argued that, under the facts in the case, a necessity existed for the appointment of a receiver, but that it was within the discretion of the chancellor to appoint one without bond, because there is no statute in Arkansas requiring an indemnifying bond as a prerequisite to obtaining the appointment of a receiver, and that no damages can be assessed in favor of an injured party on account of the appointment of a receiver in a case by a chancellor or court where the chancellor or court had not ordered that a bond be given. The case cited recognizes the rule that, if a party litigant obtains the appointment of a receiver maliciously and without probable cause, he will be liable for resulting damages, although there is no statute in the State requiring the execution of indemnifying bonds as a prerequisite to obtaining the appointment of receivers. The court found in the instant case, upon testimony that justified the finding, that no ground or necessity existed for the appointment of the receiver, which was tantamount to finding that the appointment was obtained without probable cause, and inferably -with malice. Under the facts in the case and the rule announced, the court did not err in allowing R. J. Bonds $250 on account of the wrongful appointment of the receiver.

(2) . Appellant’s next contention, to the effect that the court erroneously allowed S. S. Bonds credit on the notes for two checks, the Gilmore check for $202.50 and the Gammill check for $582.50, depends upon whether the allowance of them by the trial court is clearly against the preponderance of the testimony It cannot possibly serve any useful purpose to set out the conflicting testimony relating to these two items in this opinion. Suffice it to say that, after a careful reading of the testimony, we are of opinion that the weight thereof supports the allowance of both credits.

(3) . Appellant’s next contention, to the effect that the court erroneously allowed appellees the value of worthless, cottonseed which it sold them, is justified on the ground that it did not own the seed but merely acted as the agent of the merchants of 'Shirley in the sale thereof. 'Cottonseed was sold the appellees by appellant without disclosing its ag-ency for the merchants of Shirley and without disclosing its principal. An agent who does not disclose his agency and the principal for whom he is contracting may be held liable as a principal. Cooley v. Ksir, 105 Ark. 307, 151 S. W. 254, 46 L. R. A. (N. S,) 527; Beatrice Creamery Company v. Garner, 119 Ark. 563, 179 S. W. 160; Collier Commission Company v. Redwine Bros., 169 Ark. 814, 277 S. W. 2.

(4) . Appellant’s next contention, to the effect that the court should have rendered judgment against the garnishee, is without support in the testimony. The weight thereof is clearly to the effect that the Yan Burén County Bank owed S. S. Bonds nothing of consequence at the time or after his writ of garnishment was served upon it.

Appellees contend on cross-appeal for a reversal of the decree in so far as adverse to it and a modification thereof, because the court did not allow an additional credit of $203.04 -on the G-ilmore check, and William Bonds and R. J. Bonds $100 each, and S. S. Bonds $150 damag-es for breach of the warranty as to the cottonseed.

As stated above, after a careful reading- of the testimony we are convinced that the weight thereof supports the amount of the allowance made by the court.

Appellees cite the case of Earle v. Boyer, 172 Ark. 536, 289 S. W. 490, in support of their contention that the trial court adopted the wrong rule for the measure of damages relative to the sale of seed for planting-purposes. Appellees -did not bring themselves within the rule announced in that case by proving the proper preparation of the soil for the reception of the seed and that same were planted at the proper depth.

No error appearing, the decree is affirmed.

Humphreys, J.,

(on rehearing). ' Appellant insists, on motion for rehearing, that the evidence does not warrant the conclusion reached by the chancellor and confirmed by this court, that S. S. Bonds was solvent, and that no necessity existed for the appointment of a receiver. We have read the testimony again, and think the finding of the chancellor is supported by the weight thereof. The testimony brings the case -within the rule recognized in Riner v. Ramey-Millburn, referred to in the original opinion, to the effect that, where a litigant obtains the appointment of a receiver without probable cause, and inferably with malice, he will be liable for resulting damages, although there is no statute in the State requiring* the execution of an indemnifying bond as a prerequisite to obtaining the appointment of a receiver.

Appellant also insists that it is not bound by the answer of the Van Burén County Bank to the writ of garnishment filed on January 19,1927, to the effect that it had only eighty-eight cents belonging to S'. S. Bonds, because the answer was prematurely filed. The answer was filed on the return day named in the writ, and the truth of the statements contained therein was not traversed in writing. This court ruled in the case of Beasley v. Haney, 96 Ark. 568, that the untraversed answer by a garnishee must be presumed to be true, even if an issue had properly been joined in the garnishment proceeding*. We think the finding of the chancellor to the effect that there was no ground for the issuance of the writ of garnishment is sustained by the weight of the testimony. Van Burén County Bank had a bona fide indebtedness against the 'Bonds, and took a mortgage on unincumbered real estate to secure same. There'is nothing in the record to indicate that the mortgage to the bank was fraudulent. It is true that, after the Van Burén bank filed its answer, it loaned $300'to Herman Bonds, 14-year-old son of S. S. Bonds, and that S. -S. Bonds bought cattle with it, under an agreement to divide the profits with his son. The record does not reflect that S. -S. Bonds deposited any of his individual money in the bank. A little later on it seems that he purchased cattle with money which he borrowed from Brad Fraser, the cashier of the Van Burén County Bank, and checked on Fraser’s account for such amounts as he used. As stated above, there is nothing in the record to indicate that S. S. Bonds ever deposited any of his own money in the bank after he filed his answer, which was not controverted.

The motion for rehearing is therefore overruled.


author: Kirby, J.,

text:
    Hyatt v. Wiggins.
    Opinion delivered February 4, 1929.

      Sam T. Poe, Tom Poe and McDonald Poe, for appellant.

      Fred A. Isgrig and PhilUp McNemer, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the court erred in the giving of the instruction objected to, relative to the changed specifications for the use of galvanized wire instead of steel in reinforcing the concrete, the jury being told, in effect, that the changed specification had been agreed to by appellants; but the majority is of opinion, in which the writer does not concur, that a fair construction of the instruction does not warrant this conclusion, and that, since the law was properly declared" in other instructions in harmony with and not contradictory thereof, there was no error committed in the giving of the instruction in the form requested, and that no prejudice could have resulted therefrom.

The evidence is sharply in conflict as to whether there was any parol agreement made between the parties about the use of galvanized wire for reinforcing in lieu of steel provided to be used in the written contract, but the jury has found against appellants on this point,.and, there 'being substantial testimony supporting the verdict, it will not be disturbed here.

Neither does the court find that error was committed in the giving or refusing to give instructions relative to the measure of damages for injury resulting from failure to construct the culvert in accordance with the contract therefor. Under the instruction" given, the jury were authorized to find the damages consisted in the difference between the value of the property sold had the conduit been constructed in accordance with the contract and its value without such properly constructed and after the collapse thereof. The conduit was without value except as a neicessary drainage way for carrying off the surface water from the premises, and, under the circumstances, the -damages would have been the difference in value of the property with the conduit or drain properly constructed in accordance with the icontract and its value, with the conduit constructed as it was in fact made.

The undisputed testimony showed what the value of the property was before and after the collapse of the conduit, and that the difference in such value was decidedly more than the cost of reconstruction of the conduit, and also the complaint alleged appellants were entitled to such damages of reduced value in addition to the cost of reconstruction of the conduit.

After a careful examination the court has concluded that there is no prejudicial error in the record, and the judgment is accordingly affirmed.


author: Mehaffy, J.

text:
    Gibson v. Continental Casualty Company.
    Opinion delivered February 4, 1929.

      Wills & Wills, for appellant.

      Roscoe R. Lynn, for appellee.
   Mehaffy, J.

This suit was -begun in the North Little Roelc Municipal Court, where there was a judgment, and appeal taken to the Pulaski Circuit Court. The plaintiff, who is appellant here, alleged that on July 17, 1927, the defendant, appellee here, by its agent, applied to and solicited the plaintiff to take insurance in defendant company with sick and accident indemnity, and plaintiff -subscribed for and took the same; that, in consideration therefor, -plaintiff executed and delivered to said agent of defendant a deduction order on the Missouri Pacific Railway Company in payment of the premium, and defendant, through its said agent, issued to plaintiff a receipt and contract to the effect that the accident policy would begin July 18, 1927, and the illness insurance would begin August 3, 1927. A copy of the statement referred to is attached to plaintiff’s complaint.

It was further alleged that the insurance indemnified plaintiff against loss of time from July 18, 1927, to the extent of $140 a month while confined in the hospital and $70' while unable to work on account of the accident.

Plaintiff alleged that, after said accident insurance became effective on July 30, 1927, and before the policy had been issued and delivered to plaintiff, he was injured while pursuing his usual occupation, by having his hand severely mashed. One of his fingers was mashed off and two others badly bruised. That, on account of said injury, he was confined to the hospital and unable to work for a period of 24 days, and is entitled to pay at the rate of $140 per month. And that, on account of said injury, he had been unable to work up to the time of filing the complaint, and is entitled to pay for this time at the rate of $70 per month, and that there is due him the sum of $224.67. He alleges that he complied with the terms of the insurance contract.

The following is the stipulation entered into by the attorneys:

“It is agreed by the parties that a jury be waived and the case submitted to the court sitting as a .jury, upon the record in the municipal court and the following statement of facts:

“R. B. Henderson, a representative of the defendant, solicited the plaintiff for health and accident insurance. On July 17, 1927, the plaintiff signed an application for insurance, marked Exhibit A. Henderson handed the plaintiff a statement on form 2896, marked Exhibit B. The plaintiff at the same time executed and delivered to the agent what is called a deduction order, marked Exhibit O. Henderson testified that he understood that he was authorized to issue the statement just as he did. And plaintiff testified that he understood he was insured against accident from July 18, 1927, the time stated on form 2896, and made Exhibit B as above. The plaintiff was injured July 30, 1927, and made necessary proof of his injury, showing that the same was received in the ordinary performance of his duties. The defendant declined to accept proof, for the reason that the policy had not been issued at the time of the injury. If the policy had been issued it would have been on defendant’s form 1174, marked Exhibit D.

“The correspondence shows that the defendant declined to issue the policy because the records of the company apparently indicated that the plaintiff was susceptible of kidney stones. • The plaintiff advised R. B. Henderson, the representative of the defendant, that there was a mistake; that he had never had Iddney stone, and had never had any insurance with defendant, and had never filed any claim of any kind with defendant other than for -the injury here sued for. But, at the request of defendant, he signed a waiver, marked Exhibit E, of any loss resulting directly or indirectly from kidney stone, under date of August 3, 1927.'

“It is agreed that the claim herein sued on is for loss of time from accident, and not on account of sickness, and that, if there is any liability against the defendant, it amounts to two hundred ninety-four and 67/100 dollars, plus interest from November 8, 1927, the date of the judgment in the lower court, at 6 per cent, per annum.

“It is further agreed that, if plaintiff is entitled to recover, he is entitled to have $35 attorney’s fee taxed up as costs.

(Signed) “J. F. "Wills,

“Attorney for plaintiff.

“Boscoe B. Lynn,

“Attorney for defendant.”

The application signed by the plaintiff was also introduced in evidence. It is quite lengthy, and it will not be necessary to set it out in full.

When the application was signed, B. B. Henderson, the representative of the insurance company, thereupon gave plaintiff the following statement on defendant’s form No. 2896:

“Continental Casualty Company. General Offices, 910 S. Michigan Avenue, Chicago.

“7-17-27.

“Name: Will Gibson.

“Occupation: Coach builder.

“Date application secured: 7-17-27.

“Date accident policy becomes effective: 7-18-27.

“Date illness insurance becomes effective: 8-3-27.

“Principal sum: $2,000.

“Accident indemnity: $70.

“Illness indemnity: $70.

“Premium: $59.40.

“First payment due from wages earned in month of August.

“No. of installments: 11.

“B. B. Plenderson, representative.”'

Plaintiff thereupon gave Henderson, representative of defendant, the following deduction order:

“Paymaster’s Order No..............................

“Agent, notice: To avoid errors and for the benefit of paymaster, write applicant’s name here, very plainly, giving correct spelling and first name in full:

“Will Gibson.

“Annual plan: I also agree that, if my wages are paid to me more often than once a month, then each installment, instead of being deducted and paid from a month's wages as herein provided, is to-be deducted and paid from that part of the month’s wages first payable to me.

‘ ‘ 1. The annual premium of my said policy is $............, and I have agreed to pay it in ............installments. The amount to be deducted from my wages for the month of......................................................, 19............, is $.................., and the same amount is to be deducted monthly thereafter until the above number of installments have been paid.

“Monthly plan. 2. The annual premium of my said policy is $59.40, and I have agreed to pay it in monthly installments. The amount to be deducted from my wages for the month of August, 1927, is $9.90, and the amount to be deducted monthly thereafter is $4.95 until further notice. ¡Should I desire to discontinue my policy after it has been maintained in force for at least one year, by reason of said payments, I agree to give the company thirty days’ written notice.

“I hereby make this order a part of my application for insurance, and waive for myself and beneficiary under said policy notice of nonpayment of any premium for any reason.

“I understand that no agent of the company has any authority or power to waive or -change any of the printed provisions hereof.

“My employer is: Missouri Pacific R. R.

“Division or department head: H. C. Ralls.

“My occupation is: Coach builder.

“My time is kept at: Little Rook.

“I am employed at Little Rock.

“Division: Arkansas, shop or section No. 4477.

“Dated at Little Bock, the 17th day of July, 19.....:.......

“Signature: Will Gibson.”

A copy of the policy which would have been issued was also introduced in evidence.

On August 3, 1927, three days after plaintiff had been injured, the defendant had him sign the following waiver:

. “To induce the Continental Casualty Company to issue (or, if it be already issued, to continue) its policy of the above number, notwithstanding the fact that I have heretofore suffered from kidney stones, I hereby agree that no indemnity of any kind or amount shall be payable to me or to my beneficiary under said policy for loss which results wholly or partly, directly or indirectly, from kidney stones and/or any disease of the urinary tract in any form; this notwithstanding any provision there may be to the contrary in said policy contained. This agreement is executed by me in duplicate, one copy to be attached to the said policy as a part thereof, and the other to be retained by the company.

“Dated at Little Bock, this 3rd day of August, 1927.

(Signed) “Will Gibson.”

“Approved as part of said policy. Continental Casualty Company.

“By H. G. N. Alexander, President.”

The court, after considering the evidence mentioned above, held that, as no policy had been issued, there was no contract for the accident insurance.

Motion for a new trial was filed, overruled, exceptions saved, and the case is here on appeal.

The only question involved in this appeal is whether the insurance was in force at the time of the accident, or whether it did not become effective until application was received at the home office, approved, and policy issued. This court has held that an oral contract for temporary insurance until policy is issued is valid, and that an agent with authority to issue policies may make a valid, binding oral contract for temporary insurance.

It is a general rule that an agent with power to make and issue policies may agree orally for temporary insurance. Of course, if he could agree orally for temporary insurance, or insurance to begin at a particular date, he could do the same in writing. 14 R. C. L. 880-881.

The appellee contends that the insurance was not in force and that it was not intended to be in force until the application was received and the policy issued. The agent of appellee, however, filled out and signed appellee’s form No. 2896. That stated: “Date application secured: 7-17-27; date accident policy became effective, 7-18-27; date illness insurance became effective: 8-2-27. ’ ’ This was appellee’s form.

There is no dispute about Henderson being the agent of appellee and having possession of these forms for the purpose of soliciting insurance, and no question about his having authority to sign these orders; and appellee does not contend that he did not have the right to write in the dates and fill the blanks; they were evidently there for that purpose. And the appellee furnished the agent with these documents, and it was certainly within the apparent scope of his authority to make the contract that he did make. There is nothing in the application or in any of the forms introduced in evidence that in any way contradicts the statement in this form 2896.

Appellee argues that, while it is not necessary for the policy to be delivered before it takes effect, when it contains a provision that it shall take effect immediately upon its issuance, the court cannot say, under the ag*reed facts in this case, that it can take effect prior to its issuance. And, 'since in this case it was not issued, it is contended that no contract of insurance was made. This however is contradictory of the statement in form 2896.

It is argued that the intention of form 2896 was merely a receipt or memorandum, and that the transcript does not show what the agent’s instructions were in reference to filling out the slips. There is no dispute about the fact that he had the slips and for the purpose for which they were used. The blanks were there, and it was at least within the apparent scope of the agent’s authority to fill these blanks. It would have been an easy matter to have form No. 2896 so printed as to show that it became effective when the policy was issued, and that would have been the most reasonable thing to do if that were a fact. But the very fact that the blank was left there following the words, “date accident policy becomes effective,” shows that it would be unreasonable to hold that it was not the intention that these dates be filled by somebody sometime. And we think the most reasonable construction of the instrument is that the agent himself was to fill them. And especially is this true when we keep in mind the rule that the contract is to be construed most strongly ag’ainst the insurer. In contracts of insurance, like other contracts, the intention of the parties must govern. And it certainly appears that the intention here was for the ag’ent to fill in the blank showing the date when the accident policy became effective.

The policy was not issued, as the testimony shows, because the appellee got the idea somehow that appellant had some ailment. They afterwards learned, however, that they were mistaken about this. It is contended, however, that there is nothing in the stipulation of facts indicating’ that the agent had any authority other than as a mere soliciting agent, authorized to take applications and forward them to the company for approval, and, as such agent, had no authority to issue a policy. It may be that his agent had no authority to do what he did, but, under the circumstances, the acts of- the agent appear to be clearly within the apparent scope of his authority.

Appellee calls attention to the case of New Hampshire Fire Ins. Co. v. Walker, ante, p. 317, and says that the opinion in that case seems to be decisive of the case at bar. We said in that case: “The undisputed proof shows that the agent had no authority to issue a policy for the appellant on property at Hensley.”

There is no testimony in the instant case that disputes the authority of the agent Henderson to fill the blank, thereby stating the date when the accident policy became effective. We have already said that this action on the part of the agent was within the apparent scope of his authority. Of course, if he had no right to make this, and had not had the blanks for the purpose of filling them up, or if the undisputed proof showed that he had no authority to fill the blanks or to make the contract, then, of course, it would be controlled by the case of New Hampshire Fire Ins. Co. v. Waller, supra.

We also said in the above case that, while the authorities are in conflict, the appellant is bound only by such acts of the agent as are done in the ordinary course of the business in which he is engaged, and that, since he had no authority to write insurance for appellant in this territory, the appellant is not bound, even if a contract was made by Wells. In the instant case, so far as the record shows, the acts of the agent were done in the ordinary course of business in which he was engaged, and he had apparent authority to do the things he' did.

It follows that the judgment of the circuit court must be reversed-, and remanded for trial, and it is so ordered.

Kirby and McHaney, JJ., dissent.


text:
    First National Bank of Belleville, Illinois, v. Tate.
    Opinion delivered February 4, 1929.

      A. G. Little and C. M. Buck, for appellant.

      J. T. Coston, for appellee.
   Mehaffy, J.

Adolph Knobeloch owned the north half of section 34, township 11 north, range 8 east, and northwest quarter and west one-half of the northeast quarter and southeast quarter of the northeast quarter of section 35, township 11 north, range 8 east, icontaining 600 acres, in Mississippi County, Arkansas, and entered into a contract to sell said land to Harold White. This contract was entered into some time prior to October, 1919. The contract expressly stated 600 acres, and it did not contain the words “more or less.”

On October 3, 1919, White entered into a contract with Tate and Fitzhugh to sell them the land for $75,000, .which would be $125 per acre if the tract contained 600 acres. This contract between White and Tate and Fitzhugh contained the same description of the land, followed by the words “containing 600 acres in Mississippi County, Arkansas, ’ ’ and this contract did not contain the words “more or less,” or any similar words.

In the contract of sale by White to Tate and Fitzhugh there was to be a cash payment and five promissory notes for the sum o,f $11,000, each payable in 1, 2, 3, 4 and 5 years from date, bearing interest at the rate of 6 per cent, per annum from date, and a lien was retained for the balance of the purchase money.. Said '.contract also provided for the delivery by White to the purchasers of an abstract of title to the land, and the parties were to have 30 days in which to examine the abstract, for the purpose of making such corrections as might be necessary and meet the requirements of the attorney for the purchasers. The contract also provided that White should have possession of the land until January 1, 1920, at which time he was to deliver a warranty deed and the possession of the land. Said contract further provided for furnishing the purchasers a good and merchantable title to said land, the same to be approved by the attorney for the purchasers.

No deed was ever delivered, as. provided for in the contract, and on the 12th day of January, 1920, White assigned the contract with Tate and Fitzhugh to Knobeloch. The assignment reads as follows:

“January 12, 1920. For and in consideration of the sum of $8,350 I assign all my interest in the above contract to Adolph Knobeloch.

“H. B. White.”

Thereafter a deed was prepared and signed and acknowledged by Knobeloch and his wife in accordance with the White contract. But Fitzhugh and Tate declined to accept this deed, made some objections to the contract, and Fitzhugh, Tate and Knobeloch mutually agreed to a different contract. That is, it was different as to the amount of the deferred payments and the interest, and this deed to Fitzhugh and Tate from Knobeloch and his wife described the same land which is above described, said description followed by the words “containing 600 acres,” but did not contain the words “more or less.”

The testimony on the part of the appellees shows that, at the time they entered into this contract and before it was executed, Fitzhugh insisted on knowing the number of acres, and Knobeloch told him that there were 600 acres. Fitzhugh and Tate both swear that they purchased the land, not for $75,000 for the tract, but for $125 per acre. After some of the payments had been made, Knobeloch borrowed money from the First National Bank of Belleville, Illinois, in the town where he lived, and pledged these notes as security for the payment of his note. These notes were not paid at maturity, because Tate and Fitzhugh claimed to have discovered that there was a deficiency; that there were several acres less than 600 in the tract, and thereupon the First National Bank filed suit in the Mississippi Chancery Court.

The defendants filed answer and ¡cross-complaint, in which they alleged that a new contract was made; that they paid all of their notes promptly, and would have continued to do so if it had not been lor the deficiency in the number of acres.

The chancery court found that the sale of the land was by the alores, and not en masse. The court also found that Knobeloch represented to Fitzhugh, before the sale was consummated, that the lands contained 600 acres, and that this representation was material and induced the execution of the contract, and that it was false. The court further found that appellees were entitled to a reduction on the punchase price for 11.8 acres at $125 per acre, amounting to $1,475. This appeal is prosecuted to reverse this decree.

The appellant first contends that there is. no shortage ; that the tract sold contained 600 acres.

Fitzhugh testified that it was distinctly understood that the price was to be $125 per acre, and that Knobeloch represented that the tract contained 600 acres. He also testified that Knobeloch agreed to make a reduction in the price, according to the deficiency in acres.

There was some correspondence, most of the letters having been written by Mr. Fitzhugh, but he also' details a conversation with Mr. Knobeloch, which Mr. Knobeloch does not deny.

Fitzhugh then employed a surveyor, and, after agreeing to make good the shortage, if there should be any, Mr. Knobeloteh employed a surveyor himself, who made a survey of the land and made a. map or plat, which was introduced in evidence, and this plat shows a shortage of 11.8 acres. And Mr. Knobeloch’s employee or surveyor, Mr. Gauss, made the plat and testified to its. correctness. He testified that he had been in the business of surveyor and engineer practically all of his life; was with the government for about 13 years in this line of work, and since that time has engaged in private practice; that he was requested to make a survey by the appellees, but stated to them that he had already made one for Mr. Knobeloch ■ and did not feel like it was necessary to make any more measurements, because they had already been made. He testified that, basing' his answer on property lines, the shortage in the total tract was approximately 11 acres— 11.8 acres. He was unable to find the corners established by the government because the monuments and evidence had been destroyed, and he stated:

“The original survey by the government was made about a hundred years ago, and then they have been re-established from time to time by local surveys, and to say that an attempt was made to find that original corner would not be true, because it was not, but I have a little better authority than the mere property lines for the location of the quarter corner on the west side of section 34, because there is a local corner 5,280 feet due south of the center o,f the canal along that line of road, and that quarter corner, which is at the corner of the fence which marks the south line of section 34, is midway between the two corners, which, in the absence of any further evidence, would have to be accepted as the quarter corner. On the east side of 35 there is nothing there but the property corner, that fence corner.”

And this witness also testified that he found the accepted corners, and this testimony, together with the testimony of the other surveyor, and the plat made and introduced in evidence, was sufficient evidence to justify the court in finding that there was a shortage of 11.8 acres.

It would be impossible, in many instances, to find anything but alccepted corners. After a long period of time the corners and evidences of the corners established by the government are destroyed, and, in many instances, corners established by subsequent surveyors, and the proof of those things cannot be had. This was a question of fact as to whether there was a deficiency in the acreage, and, unless we icould say that the chancellor’s finding was against the preponderance of the evidence, we would not be justified in reversing his finding.

It is also contended by the appellant that, if there is an actual shortage, this is not an action on the covenants in the deed. And it is contended that the White contract was assigned by White to Knobeloch, and that this is the contract entered into by Fitzhugh and Tate.

We do not agree with the appellants in this contention, for the testimony, we think, conclusively shows that the White contract was not carried out, but, according to the preponderance of the evidence, there were not only changes in the interest and the amount of the payments and number of notes, but the contract entered into was for $125 per acre, and it was represented by Mr. Knobeloch that there were 600 acres, and, according to the preponderance of the evidence, this was the contract finally entered into.

Any persons competent to make a 'contract can as validly agree to rescind it as they, could agree to make it in the beginning. It is entirely competent for parties who have entered into a contract to modify it, to waive their rights under it, to vary or modify its terms, or to substitute a wholly different contract from the original one. And this may be done by mutual consent, and, according to the preponderance of the testimony in this case, it was so done.

This not only applies to oral contracts, but to contracts in writing as well. It is argued, however, that there is no consideration for the new contract or for the statement that there were 600 acres. It has been many times decided, however, that, so long as a contract remains executory, a mutual agreement of the parties to rescind it requires no new or individual consideration; for the release of each of the parties from his duties, and obligations under the existing contract is a sufficient consideration for his agreement to release the other.

It is also true, as we have already said, that the parties may not only agree to rescind, but they may make a new contraje! with reference to the same subject-matter, the new contract taking the place of the old, and the substitution of one for the other is a sufficient consideration to support the new agreement. Black on Rescission and Cancellation, vol. 2, 1234; 6 R. C. L. 914.

"We think that Mr. Fitzhugh’s and Mr. Tate’s testimony as to the 600 acres and as to the purchase being by the acre instead of en masse is corroborated by the conduct and testimony of Knobeloch himself. Fitzhugh swears positively that that was the understanding, and that Mr. Knobeloch stated that there were 600 acres. Mr. Knobeloch does not deny having said this, except to say that he was not positive about it; ¡could not have been, because he had not had the survey. It is argued that Mr. Knobeloch’s promises thereafter to pay‘for any shortage are without consideration, and this is true so far as that conversation is concerned, but it is competent as evidence because it corroborates, or strengthens rather, the claim of Fitzhug'h that that was the agreement originally.

It is contended also that the mention of the number of acres in the deed is not a matter of covenant. But it was certainly, if made as the preponderance of the evidence shows that it was. made, a representation which turned out to be untrue, and, according to the undisputed testimony of Fitzhugh, was not only an inducement, but he would not have entered into this ¡contract but for that representation.

Appellant calls attention to Harrell v. Hill, 19 Ark. 108, 68 Am. Dec. 202, and there are a number .of other Arkansas cases to which attention might be called. In all of them, however, the words “more or less” were used after the mention of the number of acres, and it is generally held that “more or less” simply means approximately. And, if there is a very small discrepancy or insufficiency, that a statement of “more or less,” ¡or “estimated,’’will prevent the purchaser from recovering where the difference is trifling or small. But, even where the terms “more or less,” or “estimated,” or “approximately” are used, or either of them, if there is a very great discrepancy, the purchaser is entitled to recover.

But these cases to which appellants have referred are oases where the sale was en masse, and not by the acre. And it is generally held that, where the sale is by the acre, unless the number of acres called for in the deed are actually in the tract, the purchaser may recover the price per acre for the number of acres short.

The first case referred to by appellant is that of Harrell v. Hill, supra, and the court said:

“The general rule is that, when a misrepresentation is made as to quantity, though innocently, the right of the purchaser is to have what the vendor can give, with an abatement out of the purchase money for so much as the quantity falls short of the representation. * * * The same principle is thus expressed by Mr. Justice Story: ‘The general rule is that the purchaser, if he chooses, is entitled to have the contract specifically performed, as far as the vendor can perform it, and to have an abatement cut of the purchase money or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate.” Harrell v. Hill, 19 Ark. 104, 68 Am. Dec. 202.

It is immaterial whether the representations as to acreage were made innocently or otherwise. It might be a mistake or a fraud, but the rule is that, if one buys a 'certain number of acres, a misrepresentation as to the number, whether made innocently or fraudulently, entitles the purchaser to recover for the deficiency. And this is not an action for false and fraudulent representations.

The contention of the appellee is, and the preponderance of the evidence shows, that there were 600 acres represented by Mr. KInobeloch to be in the tract, and he may have thought that it contained that. But, if he made the representation, and it was bought by the acre, and there were not that many acres, the purchasers would be entitled to recover without regard to whether there was any fraud or not.

“It is not charged that Solmson knew this representation was false, but it is not essential that that fact be shown. This was a material matter, and he was bound by Ms representations, however innocently made.” Solmson v. Deese, 142 Ark. 189, 218 S. W. 657; Neeley v. Rambert, 71 Ark. 91, 71 S. W. 259.

If the contract was for $125 per acre and it was represented that there were 600 acres, it would be wholly immaterial whether there was any fraud or intentional misrepresentation, because the contract was to pay so much per acre. And the purchaser would in no event be liable for the price of any more acres than the tract contained, no matter how innocent the vendor may have been in- mailing the representations.

There is no evidence of any fraud or any intentional wrong, but we think the great preponderance of the evidence shows that it was a purchase by the acre at $125 per acre; that it was represented to Fitzhugh that there were 600 acres.; that he declined to purchase until this statement was made; and the evidence shows a shortage of 11.8 acres. And on the questions of fact involved in the case and determined by the chancellor, his finding is supported by a preponderance of the evidence.

The decree of the chancellor is correct, and is therefore affirmed.

Hart, C. J., and Kirby, J., dissent.


text:
    Yarnell v. Mechanics' Insurance Company of Philadelphia.
    Opinion delivered February 4, 1929.

      John E. Miller, for appellant.

      Golden Blount, for appellee.
   Mehaffy, J.

The appellee brought this suit to collect $81. The suit was based on the following note:

“The company is authorized to insert the number of policy-in this note.

“$81.00. For value received, in policy No. CF 110, dated....................................19............, issued by Mechanics’ Insurance Company of Philadelphia, I promise to pay said company, or order, at its office in Chicago, Illinois, with expenses of collection and attorney’s fees, and without relief from valuation or appraisement law, the sum of eighty-one and no/100 dollars, payable without interest in installments as follows: Twenty dollars and twenty-five cents on the first day of December, 1926, and twenty dollars and twenty-five cents on the first day of December, 1927, and twenty dollars and twenty-five cents on the first day of December, 1928, and twenty dollars and twenty-five cents on the first day of December, 1929.

‘ ‘ This note is for insurance, and, in case of loss under the policy for which it is given, the company is hereby authorized to deduct from the amount of said loss the entire amount of unmatured installments of this note. And it is hereby agreed that, in ease any one of the installments herein named shall not be paid at maturity, or if any single payment promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium for said policy, shall not be paid when due, this company shall not be liable for loss during such default, and the said policy shall lapse until payment is made to this company, and the whole amount of installments or notes remaining unpaid on said policy may be declared earned, due and payable, and may be collected by law. In case of the sale of the property insured under said policy before maturity of this note, this note shall become due and payable immediately.

“Dated at Searcy, Arkansas, this 5th day of December, 1925.

“J. Pitts Yarnell.

‘ ‘ Witness: C. A. Foster. ’ ’

The circuit court directed a verdict in favor of the appellee, and appellant prosecutes this appeal to reverse the judgment of the circuit court.

In addition to the note above given in evidence, the appellant testified as follows: The policy of fire insurance was delivered, and appellant paid the yearly premium of $20.25; paid this sum at the time the policy was issued. That kept the policy in. force one year. At the same time the company requested that a note be executed as evidence of four additional years at $20.25 per year, and the note which has been introduced in evidence was executed 'by him at the time. Witness was to pay $20:25 each year to keep the policy in force. The policy was dated December 5,1925, and the premium which witness paid in this case made the policy' in force until December 5, 1926.

On March 25, 1926, a fire destroyed the property and destroyed the copy of the policy which was in appellant’s possession, and he did not have a copy. The adjuster came to see appellant, and had a copy of the policy, and made settlement with him for the face of the policy. Appellant afterwards received a letter from the company, asking him to pay the other installments of the note. He wrote the company, giving it as his understanding of the contract, and stated to the company that he did not consider he owed anything; and, in response to that letter, he received the following reply:

‘ ‘.Mr. J. Pitts Yarnell,

Searcy, Aransas.

“In re-. Policy No. CF-110.

“Dear sir: Please disregard our letter to you of December 22, concerning an apparent delinquent note payment under this policy. This notice was sent to you through a misunderstanding, the above canceled policy having been in our possession at that time.

“Regretting any inconvenience we may liave occasioned you, we remain,

“Very truly yours,

“W. J. Schmidt,

“Assistant Secretary.”

' When the adjuster came to see appellant he had a copy of the policy, and stated that the settlement was made in accordance with the copy of the policy which he had.

The appellant contends that the court erred in instructing the jury to find for the plaintiff, and cites and relies on the case of American Ins. Co. of Chicago v. Storey, 41 Mich. 385, 1 N. W. 877.

The majority of the court, however, are of opinion that the court did not err in directing a verdict for the plaintiff; that he was justified in so directing the jury under the authority of American Ins. Co. v. Austin, ante, p. 566. The installment note in the above case contained provisions very similar to the installment note in the instant case.. In that case the court said:

“The cash payments made on the premium at the time the application was taken, although one-fifth of the premium on the policy for five years, did not constitute a payment of the premium for'one year’s insurance, but only a partial payment of a premium on a five-year policy of insurance. ’ ’

And, in the instant case, the cash payment, according to the opinion of the majority, did not constitute a payment of the premium for a one-year policy of insurance. And in this case the undertaking of the insurer was not to insure the appellant’s property from year to year, but for a period of five years, on condition that he pay cash one-fifth of the premium, and execute note for the balance, payable at intervals mentioned in the note.

The appellant also contends that the court erred in its refusal to give instructions requested by the appellant. And also it is contended that the court erred in its refusal to permit the introduction of the policy in evidenee, but appellant does not offer to show how he was prejudiced by the policy not being introduced.

Having reached the conclusion above with reference to the note and the policy, it necessarily follows that the court did not err either in its failure to give instructions or in its refusal to permit the policy to be introduced in evidence.

The writer of this opinion does not concur in the views above expressed, for the reason that he believes that the policy of insurance and note constituted one contract, and that, when the adjuster came to settle the matter, he had the policy with him, and, according to his statement, it was adjusted and settled according to the terms of the policy. The majority of the court, however, are of opinion that the case is controlled by the case of American Ins. Co. v. Austin, supra, and the judgment of the circuit court is therefore affirmed.


author: McHaney, J.

text:
    Texas Company v. Williams.
    Opinion delivered February 4, 1929.

      Powell, Smead & Knox, for appellant.

      Haynie, Parks & Westfall, for appellee.
   McHaney, J.

Appellee brought this action against appellant to recover $6,500 on an alleged oral contract to pay him such sum for personal injuries sustained by him on or about June 30,1925. He alleged that on January 15, 1927, he entered into an oral contract of settlement with appellant, by which he was paid $1,500 in cash and was to be paid $5,000 in semi-monthly installments of $75 each; that appellant neglected and refused to pay said installments, and that, at the time of filing suit, twenty-six of said payments were past due, in the sum of $1,950, for which amount he prayed judgment. Appellant denied making any such settlement, or that its claim agent had any authority to make such settlement. It set up as a defense a release agreement executed by appellee in full settlement of all claims, in consideration of $1,500 paid to him by appellant, a copy of which is as follows:

“Know all men by these presents: That I, H. B. Williams, for the sole consideration of fifteen hundred and no/100 dollars, to me in hand paid by The Texas Company, have released and discharged, and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge the said The Texas Company of and from all claims, demands, damages, actions, or causes of action, on account of injuries resulting, or to result, from an accident to me which occurred on or about the 30th day of June, 1925, by reason of being injured by pulley shaft and centrifugal pump at Bradley vacuum station, near G-riifin, Arkansas, rupturing my right side, back, hip, and other serious injuries to my body, totally disabling me, and of and from all claims or demands whatsoever in law or in equity which I, my heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or anything whatsoever prior to the date hereof.

“In witness whereof I have hereunto set my hand and seal this 15th day of January, 1927.

“H. B. Williams.

“In the presence of R. R. Brown, R. E. Wood.”

Appellee replied, stating that he did not read the release agreement signed by him, and that appellant’s claim agent falsely and fraudulently misrepresented the instrument to him as only a receipt for $1,500 cash payment, and that he signed same relying on statements of said agent that it was only a receipt for said sum; and that he was weak and nervous from his injury at the time, which was January 15,1927.

Only three witnesses testified who pretended to know anything about the settlement' — the appellee for himself, and appellant’s claim agent, R. E. Wood, and R. R. Brown, who signed the release agreement as a witness, at the request of Wood, for appellant. Appellee admitted signing the release, but said he did not read it; that Wood read it to him, and that, as he understood it, he was to be paid $1,500 in cash and $75 semi-monthly until an additional $5,000 was paid; that, when the first installment came due, he wrote appellant demanding payment, and that he had written several letters since that time inquiring about it, but received only one letter in reply. He then brought suit on the 26 installments past due.

Witness Brown testified that Ms office was next to Wood’s, and that he signed the release as a witness at Wood’s request; that he saw appellee sign it, asked him if he signed it, and he said he did; that he understood that Wood was paying appellee $1,500 for personal injury case, and that appellee wanted to sign the release.

Wood contradicted appellee in all essential particulars. He denied that there were to be any further payments in addition to the $1,500 .cash, but said that the $1,500 was a full and complete settlement with appellee for all claims on account of the injury sustained by him while in appellant’s employ; that it was a case where he did not consider there was any liability, but that he finally succeeded in getting his company to authorize him to pay $1,500 in full settlement, and that this sum was paid more out of sympathy for appellee than on account, of any liability. He stated that he showed appellee a letter from appellant, by which he was authorized to make the settlement and take the release agreement which was taken, and that he had no authority to make the agreement alleged.

Appellee did not deny having been shown the letter authorizing Wood to settle with him for $1,500 and to draw a draft on appellant for such sum.

All the testimony regarding the alleged oral agreement which tended to contradict and vary the terms of the written agreement of settlement was admitted, over appellant’s objections and exceptions. At the conclusion of the testimony appellant requested a peremptory instruction in its favor, which the court refused, over its exceptions. There was a verdict and judgment for $5,000 in appellee’s favor.

We think the request for a peremptory instruction should have been sustained. The evidence shows that appellee is a man 39 years of age, is able to read and write, and possesses reasonable intelligence. There was no confidential relationship existing between appellee and Mr. Wood, appellant’s claim ag-ent, and no reason why he should rely upon his statements as to what the instrument contained. He admitted signing the release agreement, but said he did not read it, but he relied upon Wood to write the release in accordance with their previous agreement, and that he signed it without knowing its contents. He testified that Wood read it to him, but that what he read was not like the instrument exhibited at the trial. The evidence wholly fails to establish any fraud on the part of appellant whereby appellee was induced to sign the release agreement. As said by this court in the recent case of Magnolia Petroleum Co. v. McFall, ante, p. 596:

“The plaintiff was thirty-nine years old, and had been employed by the railway company for eighteen years. He was not an illiterate person, and gave no reason why he did not read over the contract for the release of damages, except that the agent told him that it was only payment for his expenses and loss of time.”

Appellee and Wood were dealing at arms’ length. They were representing conflicting interests, and, as above stated, no relation of trust or confidence existed between them. Under such circumstances, he will not be permitted to say that he did not know what the written instrument contained, that he did not intend to execute such a contract, but intended to execute another; and he will not be permitted to avoid the written instrument by merely stating that the claim agent told him it was something else, and that he did not read it, when he admits himself that he signed the instrument, and was able to read, write and understand the nature of the contract. In Upton v. Tribilcock, 91 U. S. 50, the Supreme Court of the United States used this language:

“It will not do for a man to enter into a contract and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this was permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission.”

The evidence in this case shows that appellee had ample opportunity to read the instrument. It was prepared by Wood, and left with appellee to read and sign while Wood went to a near-by office to get Mr. Brown to witness appellee’s signature to the instrument. When Wood and Brown returned, he had either read the instrument or was still reading it, and was about to attach his signature to the same, which he did in Brown’s and Wood’s presence. Appellee relies most strongly upon the case of St. L. I. M. & S. R. Co. v. Smith, 82 Ark. 105, 100 S. W. 884, but we do not regard that case nor the others cited by appellee iof controlling importance here. This case is controlled by the principles announced in Kansas City So. Ry. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123, where this language was used:

“It will ¡be observed that the release contract in express terms refers to the occasion on which the plaintiff’s claim for physical injuries is based, and covers all claims which she had or could have had growing out of or connected with any injury received by her on that occasion. In other words, the contract, in the most complete terms, contains a covenant for a settlement of all claims in consideration of ten dollars, which was paid. The question is therefore presented whether there is anything in the evidence which affords, the plaintiff any escape from the binding force of her contract, and whether the evidence warranted a submission of that issue to the jury. We think that, under the uncontradicted evidence in this case, the plaintiff is bound by the contract, and that the court should not have submitted the case to the jury. This is not a case where the plaintiff is shown to have been mentally incapacitated from entering into the contract, as in St. L. I. M. & S. R. Co. v. Brown, 73 Ark. 42, 83 S. W. 332; Bearden v. St. L. I. M. & S. R. Co., 103 Ark. 341, 146 S. W. 84; or St. L. I. M. & S. R. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052; nor is it a case where there were fraudulent representations as to the contents of the written instrument, or any trick or subterfuge whereby the papers were substituted so as to induce the contracting party to execute it, as in Hot Springs Railroad Co. v. McMillan, 76 Ark. 88, 88 S. W. 846; St. L. I. M. & S. R. Co. v. Smith, 82 Ark. 105, 100 S. W. 884; neither is this a case where the injured person executed the release in reliance upon the superior knowledge of the physician or surgeon of the company as to the extent of the injuries, as in St. L. I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803. The parties having deliberately contracted with each other for a settlement of the unliquidated claim, they are both bound by the contract, and in the absence of fraud in the particulars indicated above in the decided cases, neither of the parties can be permitted to introduce testimony to show that the release was only partial.”

As we have already stated, the parties were dealing at arms’ length, and, even though the agent misrepresented to appellee the contents of the written instrument, he had no right to rely upon such misrepresentations, since he admitted himself that he was thirty-nine years of age, and able to read and understand the contents of the written instrument. The following from Cherokee Construction Co. v. Prairie Creek Coal Mining Co., 102 Ark. 428, 144 S. W. 927, was quoted with approval in K. C. So. By. Co. v. Arm strong, supra, with reference to the conclusive effect of a release agreement:

‘ ‘ The lease or instrument in question was something more than a mere receipt. It was the final embodiment in writing of the agreement between the parties. It is a comprehensive discharge, not only of the difference between the parties, but of all matters between them. The natural meaning of the language used is broad enough to cover everything connected with the first lease. To permit the plaintiff to show by parol proof that it was not so intended would be to contradict or explain away the instrument, which is contrary to the established rule of law as established by the previous decisions of this court.”

So here the written contract of release, executed and delivered, was the final contract, between the parties, no matter what had previously gone before. To permit appellee now to testify that, although he signed the instrument- and received the $1,500 mentioned therein, it was not the contract he intended to sign, but that they were to pay him $5,000 more in semi-monthly installments of $75 each until $5,000 additional was paid, would be to put at naught the fundamental rule of evidence with reference to written contracts.

The only attempt on the part of appellee to show fraud is that the claim agent represented to him that he was signing a receipt for $1,500, and not an absolute release. This was not sufficient to justify a submission of the case to the jury.

For a further discussion of the binding effect of release agreements, see the recent case of Mo. Pacific Rd. Co. v. Elvins, 176 Art. 737, 4 S. W. (2d) 528.

Having reached the conclusion that there was no sufficient showing of fraud and that the release agreement executed by appellee was for a substantial consideration and without fraud in its procurement, there was no question to be submitted to the jury. The judgment of the circuit court is therefore reversed, and the cause of action dismissed.


author: Hart, C. J.,

text:
    Martin and Woodard v. State.
    Opinion delivered February 11, 1929.

      Cravens & Cravens, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith,, Assistant, for appellee.
   Hart, C. J.,

(after stating the facts). The main reliance of the defendants for a reversal of the judgment is that the testimony is not legally sufficient to warrant a verdict of guilty of the crime of robbery. Ray Sloan, the person charged to have been robbed, was a witness for the State at the trial. What he testified to at the examining trial was admissible in evidence in contradiction of his testimony given at the trial of the case in the circuit court, but it was inadmissible as substantive testimony tending to show the guilt of the defendants. Midland Valley Rd. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214. Thus we see that the testimony of Ray Sloan is eliminated, so far as establishing the guilt of the defendants is concerned, because he testified positively at the trial that he lost the money in a game of poker, and that the defendants did not obtain it from him by force or intimidation.

This leaves the testimony of Mrs. Ray Sloan alone to establish the guilt of the defendants. It was shown by the State that the attendance of the witness at the court could not be procured, and that she was absent in the State of Oklahoma, where she lived. This made a predicate for the introduction of her testimony at the examining court at the trial of the case. Maloney v. State, 91 Ark. 486, 121 S. W. 28. It is earnestly insisted, however, by counsel for appellants that her testimony is not legally sufficient to warrant a verdict of guilty, and in this contention we think counsel are correct. Robbery is the felonious and forcible taking of the property of another from his person or in his presence, against his will, by violence, or putting him in fear. And this violence must precede or accompany the taking of the property. Clary v. State, 33 Ark. 561; Routt v. State, 61 Ark. 594, 34 S. W. 262; and Coon v. State, 109 Ark. 346, 160 S. W. 226. In these decisions the court also held that the taking must be done through force or fear. If force is relied on in proof of the charge, it must be the force by which another is deprived of his property and the accused gains possession of it. If putting in fear is relied on, it must be the fear under duress of which the possession of the property is parted with.

Tested by these settled principles of law, the testimony of Mrs. Ray Sloan is not legally sufficient to sustain a verdict of guilty of robbery against the defendants. No force whatever was used. The defendant Martin merely took the money out of the coat pocket of Ray Sloan. He was not in any manner jostled or assaulted, according to her testimony. Neither did there occur anything tending to show that any intimidation was used. Ray Sloan was not put in fear by the defendants to induce him to part with his money. In the Routt case, above cited, the court said that it is well established that the snatching of money or goods from the hands of another is not robbery, unless some injury is done to the person, or there be some previous struggle for the possession of the property, or some force used in order to obtain it. This rule was recognized and approved in the Coon case, above cited, and the court said that the State in that case made out a case of larceny, but failed to prove robbery, because no force or putting in fear was established.

It follows that the testimony was not legally sufficient to sustain the verdict, and, for that reason, the judgment must be reversed, and the canse remanded for a new trial.


text:
    Crowe v. State.
    Opinion delivered February 11, 1929.

      McNalley Sellers, for appellant.

      Ilal L. Norwood, Attorney General, and Pat Mel taffy, Assistant, for appellee.
   Hart, C. J.,

(after stating the facts). It is first earnestly insisted by counsel for the defendant that the evideuce is not legally sufficient to warrant the jury in finding him guilty of murder in the first degree. We do not agree with counsel in this contention. The- jury were the judges of the credibility of the witnesses, and, when all the attendant circumstances are considered, it had the right to find that defendant killed the deceased with premeditation and after deliberation. The defendant confessed to killing the deceased, and there is nothing whatever in the record tending to show that the confession was not voluntary. There were three bullet wounds, in the body of the deceased. One of them was in the back, which might indicate to the jury that the defendant shot the deceased while he was running away, and that the deceased did not at any time attempt to hurt the defendant. There was also a knife wound in the body of the deceased, on the left side, which was about two inches long and big enough for a man to insert his fingers in and. feel around. The defendant admitted that he made this knife wound in the body of the deceased before he put it in the ear. The State also proved that the defendant had made threats, against deceased at various times. These facts and circumstances, testified to by the witnesses for the State, if believed by the jury, fully warranted it in returning a verdict of guilty of murder in the first degree. Owens v. State, 120 Ark. 563, 179 S. W. 1014; Thomas v. State, 161 Ark. 644, 257 S. W. 376; Beason v. State, 166 Ark. 142, 265 S. W. 956; Harris v. State, 169 Ark. 627, 276 S. W. 361; Lesieurs v. State, 170 Ark. 560, 280 S. W, 9; and Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946.

It is next insisted that the court erred in admitting the testimony as to the threats made by the defendant against the deceased. According' to the evidence for the State, the defendant was the aggressor, and, according to the testimony of the defendant, the deceased was the aggressor. Threats are circumstantial facts which tend to show motive. In any case, uncommunicated threats are admissible as tending to show who was the aggressor and to show ill will or motive for the killing, if made by the defendant. The threats proved by the State in the present case were made during- the months of May, June, July and August of 1928, and the killing occurred in the latter part of August of the same year. Hence they were not so remote in time as to render incompetent the testimony, nor can it he said that they were so ambiguous as to render them inadmissible. Combs v. State, 163 Ark. 550, 260 S. W. 736; and Humpolak v. State, 175 Ark. 786, 300 S. W. 426.

We have carefully examined the instructions given by the court, and find them to be in accordance with the settled principles of law, except in one respect. The defendant was indicted for murder in the first degree, and the jury returned a verdict in which they found him guilty of murder in the first degree as charged in the indictment. The defendant was sentenced to death by the court. The court did not instruct the jury as to its right to render a verdict of life imprisonment in the State Penitentiary, at hard labor, in accordance with the provisions of § 3206 of Crawford & Moses’ Digest. Under this section of the statute the- jury had the right to fix the punishment of the defendant at life imprisonment, at hard labor in the penitentiary. This was the lesser penalty provided by the statute, and the court erred in not so instructing the jury. There is no other error, however, in the record; and the error in this respect can be ¡cured by modifying the judgment of the lower court by reducing the punishment from the death penalty to life imprisonment in the State Penitentiary, at hard labor. This is accordingly done.

There being no other error in the record, the court can remove all prejudice that might have resulted to the defendant from the failure of the court to instruct the jury that it might impose the lesser penalty provided by the statute by reducing the punishment to life imprisonment. It is well settled that the court does not reverse a judgment and remand a cause for a new trial for errors which the record affirmatively shows could not be prejudicial to the rights of the defendant. That this is the proper procedure was decided in Davis v. State, 155 Ark. 245, 244 S. W. 750, As bearing on tbe question, see Bullen v. State, 156 Ark. 148, 245 S. W. 493; and Clark v. State, 169 Ark. 717, 276 S. W. 849.

With the modification above stated, tbe judgment will be affirmed.


author: Hart, C. J.

text:
    Hively v. Jones.
    Opinion delivered February 11, 1929.

      Oscar E. Ellis, for appellant.
   Hart, C. J.

Tbe complaint in this case was filed .before tbe mayor of an incorporated town, and reads as follows:

“Wm. Jones, in acct.'with Dan A. Hively. 1926.

Oct. — To failure to take deliver bond for 3 acres of cut corn, pea and soy bean bay of value of...$ 35.00 1927.

May 10 — Three bu. cottonseed at $0'.75, $2.75; 3-4 sacks chops at $2, $1.50; 3 wrenches at $2... 5.75

Damages to corn crop, 9% acres, by stock of said Wm. Jones running on said crop in months of May, June and July, 1927; failure to cultivate said crop, and bad stand of same................ 35.60

Damage to Dan A. Hively by failure to plant peas with said icrop by said Wm. Jones as per rental contract, to-wit: Seed peas, 10 bu. at $1.50, $15; 3 tons bay at $12.50, $37.50.................................. 52.50

Wastages of leaves, vines and roots of bay crops as fertilizer, 9% acres, $2 per acre............................. 19.00

Damage to house................ — ................................................................ 5.00

Use of pasture for 8 months for 3 head of animals, $1.50 per head.................................................................. 14.00

$165.85

The complaint consists of several paragraphs, and on motion of the defendant it was dismissed for want of jurisdiction. Plaintiff filed an affidavit and bond for appeal to the circuit court. In that court a demurrer of the defendant to the jurisdiction of the court was sustained, and the plaintiff’s cause, of action was dismissed. Plaintiff has duly appealed to this court.

Counsel for the plaintiff relies for a reversal of the judgment upon the principles of law decided in Little Rock & Fort Smith Ry. Co. v. Smith, 66 Ark. 278, 50 S. W. 502, where it was held (quoting from syllabus):

“In an action before a justice of the peace, plaintiff may combine several causes of action for killing stock, where the damage claimed in each of the several causes of action does not exceed one hundred dollars, though their aggregate amount exceeds that sum.”

We do not think that case applies. There were three paragraphs to the complaint, one for killing a horse, one for killing a cow, and one for killing two hogs. The complaint shows that the stock was killed on different days, and each paragraph constituted á distinct and separate cause of action. In Berry v. Linton, 1 Ark. 252, it was held that the- amount of each separate demand or cause of action, and not the aggregate of various causes which may be joined in one action, determines the jurisdictional amount. This rule has been followed ever since. Brooks v. Hornberger, 78 Ark. 595, 94 S. W. 708; American Soda Fountain Co. v. Battle, 85 Ark. 213, 107 S. W. 672, 108 S. W. 508; and Winer v. Bank of Blytheville, 89 Ark. 435, 117 S. W. 232, 131 Am. St. Rep. 102. '

In the case at bar it is fairly inferable from the complaint that the matters alleged and stated in the different paragraphs all relate to the same transaction and constitute but one cause of action. The various paragraphs are all different elements of damages of the same cause of action, and their aggregate amount is the measure of damages, and' therefore determines the jurisdictional amount. Inasmuch as the aggregate of the items is more than $100, and the cause of action is one in fort, the mayor’s court had no jurisdiction, and the circuit court acquired none on appeal. St. L. S. W. Ry. Co. v. O’Neal, 163 Ark. 193, 259 S. W. 393; and Crawford & Moses’ Digest, § 7676, as amended (General Acts of 1921, p.. 407). Therefore’ the judgment will be affirmed.


text:
    State v. Andrews.
    Opinion delivered February 11, 1929.

      Hal L. Norwood, Attorney General, and Boyd Gypert, for appellant.
   Humphreys, J.

The declared purpose of this appeal is to obtain a construction of 10313-14 of Crawford & Moses’ Digest, being a part of the “Trade Union Label Act,” under which appellee was charged with counterfeiting and imitating the Little Bock Printing Trades Council Union label.

Appellant contends that the trial court misinterpreted the seotionsi of the statute in question. For aught that appears in the record, the trial court may have interpreted the statutes just as appellant contends they should be interpreted. Upon a trial of the cause the trial court found appellant was not guilty as charged, and acquitted him. The testimony was conflicting as to whether the label used 'by appellee was a counterfeit or imitation of the Little Rock Printing Trades Council label, therefore the court may have found, under his construction of the evidence, that appellee was innocent, even though the law meant just what appellant contends it means.

According to the record, no interpretation of the statutes was requested and no declaration as to their meaning was announced by the court. In other words, the icourt made no declaration of law at all which is incorporated in the record. He sat as. a jury in the case, and rendered a general verdict of not guilty. This court cannot presume that he rendered a general verdict under a misinterpretation of the statutes. Since the court might have acquitted appellee on a finding in his favor on the disputed questions of fact, and could have done so under a correct construction of the statutes, it would be an act of supererogation for this court to construe statutes which the trial court did not erroneously construe. As we read the record, the question presented for determination is moot.

No error appearing, the judgment is affirmed.


text:
    Reeves v. Bartholomew.
    Opinion delivered February 11, 1929.

      W. G. Dimming, for appellant.

      J. G. Burke, Bevens & Mundt and E. M. Pipkin, Jr., for appellee.
   Humphreys, J.

Appellant, the owner of lot 12 in West’s Addition to the city of Helena, brought this suit against Bartholomew & Barry, a firm of contractors, to recover damages in the sum of $2,000 for alleged acts of trespass committed by them upon said lot by excavating and removing the terrace and destroying the sidewalk adjoining the property on the south side.

Bartholomew & Barry filed an answer, denying that the excavation was done on said lot, but, on the contrary, was done in St. Mary’s Street, adjoining the lot, and at the request and direction of the mayor, city engineer and street commissioner of the city of Helena, and requested that said city be made a party defendant, in a cross-bill alleging that, if defendant’s property was injured, it was under the direction of the city 'officers, and that said city is wholly responsible.

The city of Helena filed an answer, admitting the excavation was done under the direction of its officers, but alleged that the terrace and sidewalk were built unlawfully in 'St. Mary’s Street, and that the excavation was done by Bartholomew & Barry for the mutual benefit of themselves and the city of Helena, “they to get dirt needed in another contract, and the city to have its street improved for-the better accommodation of the public.” And, as a further defense, said that all of the excavation was done in St. Mary’s Street, and that none of the dirt removed was a part of the lot belonging to appellant, and that the excavation was done willfully, but was done after a careful survey was, made by the city engineer.

The record reflects the following facts: Mary E. West and Mary G-. West platted a certain tract of land adjoining the city of Helena into an addition thereto, and dedicated the streets in said division to the public. Among the streets dedicated was St. Mary’s Street, 60 feet wide north and south by 606.6 feet east and west. They sold lots in the addition according to the plat filed for record, and sold the particular lot in question to appellant’s husband many years ago. After appellant’s husband purchased the property, he expended a large sum in grading the lot and terracing it on the south side and constructing a sidewalk 256 feet in length on the terrace. Owing to the topography of the lots in that vicinity, the sidewalks were built along terraces in the streets near the adjoining lots. Appellant’s husband constructed the terrace in question and the sidewalk under the supervision and direction of the city engineer of Helena and in accordance with the natural grades or lay of the land. Only a portion of St. Mary’s Street was used by the public. It had never been opened up to the terraces, sidewalks, nor to its full width of 60 feet, until in December, 1926. Bartholomew & Barry had a contract near this property to fill in other property, and needed dirt for the purpose. The mayor and the city engineer, in order to widen St. Mary’s Street without cost, requested Bartholomew & Barry to move their steam shovel to St. Mary’s Street and excavate the dirt up to the property line of the lot owned by appellant, without her knowledge and consent. The city surveyor was requested to survey St. Mary’s Street, and set line stakes between the adjoining property and said street. The survey showed that the terrace which constituted the lateral support to appellant’s lot and the sidewalk thereon were in the street. No grade was furnished, and it was not shown that the grade had ever been changed from the surface or natural grade which governed at the time the terrace was constructed and the sidewalk built thereon. In addition to grading the lot, building the terrace and constructing the sidewalk, appellant’s husband had built a house on the back end of the lot in question, which was being used and rented to servants at the time the excavation was made. The porch to this house extended over the property line into the street, the house and porch being constructed with reference to the terrace and sidewalk. The entrance to tlie house was from St. Mary’s Street. The excavation was made according to the survey of the city engineer, up to the property line, and, according to the evidence introduced by appellant, several feet over her property line.

The city engineer testified that, after the excavation had been made and before he testified, he made another survey, and found that several feet had caved in on the lot itself on account of the excavation all along the south line thereof. In making the excavation, the terrace and sidewalk were destroyed. The excavation was to a depth of about 12 feet, and was almost perpendicular. In other words, the excavation took away from the lot its. lateral support, and caused it to cave in at the top. After the excavation had been made, a part of the porch to the house extended over the precipice, and the entrance thereto was entirely destroyed.

The cause was sent to the jury, over the objection of appellant, upon the theory that appellees were not responsible for any damage to the lot resulting from the excavation, if, in making the excavation, they did not encroach upon the lot itself. Every instruction given by the court to the jury told them, in effect, to find for appellees if the excavation was made in St. Mary’s Street. All of the instructions given were erroneous declarations of law as applied to the undisputed facts in the case. In the case of Fayetteville v. Stone, 104 Ark. 136, 148 S. W. 524, this court announced the rule to be that “the use of the natural surface of a grade as a street by a municipality is the establishment of a grade conforming to that surface”;, and, further, that “when the natural surface has been used as the grade line for the streets of a city, and abutting property owners have improved their property with reference to streets and grade lines, if the city after-wards changes the grade from the natural surface so as to damage abutting property owners, the city will be liable for such damages.”

The rule as announced is applicable in the instant case under the undisputed facts. Appellant’s, lot was adjacent bo St. Mary’s Street, and was improved with reference to the natural grade, under the supervision of the city engineer, and, in disregard of this fact, appellees excavated the street 10 or 12 feet deep, without establishing a different grade, and, in doing so, destroyed the terrace and sidewalk on the south side of her lot, as well as all lateral support, so that the lot would and did cave in. Even though the icity council had changed the grade from the surface to the depth the street was excavated, appellees would have been responsible for all damages resulting from the excavation, and the court should have instructed the jury that appellees were liable for all damages resulting to appellant’s lot on account of the excavation, and ishould have submitted the question of the amount of damages to them for determination. The amount of the damages to the lot is the only question that should have been submitted to the jury, and that should have been submitted under a correct rule or measure for ascertaining said amount. . Appellant was entitled to recover the difference in the market value of her lot before and after the excavation.

On account of the error indicated the judgment is reversed, and the cause is remanded with directions to submit the issue of damages to the jury.