text:
    McCulla v. Brown.
    Opinion delivered February 25, 1924.
    Vendor and purchaser — rescission—misrepresentation.—Where a purchaser had had considerable experience with Johnson grass and was on the land for the purpose of inspecting' it ¡before she closed the deal, took immediate possession, and had ample opportunity to discover such grass before making the final payment, and took no action to rescind until after a slump in prices of lands and agricultural products, and some months after a suit had been instituted to foreclose a mortgage, held that she did not rely upon the vendor’s representation that the farm was free from Johnson grass.
    Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor;
    affirmed.

      E. L. Matlock and G. L. Grant, for appellant.

      The fact that Mrs.. McCulla went upon the land and failed to discover the Johnson grass does not relieve appellee of .the fraud practiced by his agent. 47 Ark. 335; 71 Ark. 99; 159 Ark. 479. Brown is responsible for the false statements made by his agent, as such statements were within the scope of his employment. 129 Ark. 49i8. Appellant relied upon the statements of the agent. Appellant gave appellee to understand she was not familiar with the character of land in suit, and a failure thereafter to reveal material defects amounted to fraud. 38 Ark. 343; 95 Ark. 136.

      Evans £ Evans and W. E. Neal, for appellee.
    Where there is any evidence to sustain the finding of a chancellor it will not 'be overturned. 130 Ark. 470. For appellánt to recover, it is necessary that she show that she relied upon the misrepresentations in making the purchase. 83 Ark. 403; 195 Pac.' 263: If a purchaser, choosing to judge for himself, does not avail himself of the knowledge or means of knowledge open to him, he cannot be heard to say that he was deceived. 6 Clark & F. 232. Appellant’s contention does not meet the test laid down by this court in 71 Ark. 97, and followed in 123 Ark. 492; 137 Ark. 397; 237 S. W. 99. Misrepresentation without injury affords no ground of relief. 53 Ark. 275. Where the means of knowledge is open to both parties, neither has a right to rely upon the other’s statements. 11 Ark. 58; 16 Ark. 114; 31 Ark. 170; 46 Ark. 137; 47 Ark. 148.
   Humphreys, J.

On the sixth day of April, 1921, appellant instituted suit against appellees in the chancery court of Crawford County to rescind a sale of lands, known as the Lucas farm, made by them to her on the seventh day of May, 1920, for $28,000, $7,000 of which amount was to be paid in sixty days, and was paid September 17, 1920, and the balance to be paid later. The remaining deferred payments consisted of two items, one for $5,000, secured by a second mortgage upon a farm owned by appellant at Dyer, and $16,000, secured by a mortgage on the Lucas farm. It was alleged in the bill that the sale was induced by two false and fraudulent representations made by appellees’ agent who negotiated the sale, viz: that the farm had no Johnson grass upon it, and that it was securely protected by a levee from overflow from the Arkansas River.

Appellees filed an answer, denying the material allegations in the bill.

The cause was submitted to the court upon the pleadings and testimony,-which resulted in a dismissal of appellant’s bill for want of equity, from which is this appeal.

The following undisputed facts are disclosed by the record: In January, 1920, Giles T. Lucas and wife sold the farm in question to W. J. Jones for $21,000, $5,000 in cash and $16,000 in deferred payments, secured by a mortgage on said farm. In March, 1920, James and wife sold the farm to George Daugherty for $21,500. Daugherty purchased the farm subject to a $16,000 mortgage-in favor of Lucas, and paid the difference in cash. Later in March, 1920, Daugherty sold the land to John B. Brown for $24,000. He was paid $8,000 in cash, and conveyed the farm to Brown, subject to the Lucas mortgage. In May, 1920, Brown sold the farm to appellant for $28,000, conveying same to'her, subject to the Lu-cas mortgage. She gave Brown two promissory notes-for the difference between the Lucas mortgage and the amount she agreed to pay him, one note being for $7,000 and the other for $5,000, each secured by a second mortgage -on separate tracts of land. She afterwards sold the tract upon which she gave a second mortgage. to secure the $7,000 note, and paid the larger part thereof on September 17, 1920. Under her agreement of purchase she was entitled to the rents of the Lucas, farm for the year 1920, and, after closing the deal, went into the immediate possession and control thereof. One of her reasons' for purchasing the Lucas farm was to,,get a farm close to her place of residence. She,,resided in Fort Smith, and the Lucas farm was on the Arkansas River, below Van Burén; near the end of the street-car line. At the time of the purchase of the land the Lucas farm had been plowed, bedded and harrowed for planting cotton. All the rich bottom lands in the vicinity of the Lucas farm, including it, were infested with Johnson grass, which made them more expensive and harder to cultivate than lands not so infested. Appellant had had considerable experience with such lands. Three years before, she purchased eighty acres near this farm from Brown, which was infested with Johnson grass, and in September, 1920, sold same for nearly twice as much as she had given for it. At the time she purchased the Lucas farm, bottom lands found ready salé in the market at very high prices, due to the high prices of cotton and other products. In the fall of 1920 and winter of 1921 there was a great slump in the prices of lands and agricultural products. Several years before she purchased the Lucas farm the levee on it washed away during a rise in the river, but subsequently a new levee was built, and, in constructing it, provision was made to turn the current of the river away from the farm. After the new levee was built no encroachments were made upon it by the river. Before purchasing the land, appellant accompanied John Q. Adams, the agent who negotiated the sale, to the land for the purpose of inspecting same. While there she walked over a part of it, but was told by the agent that all of it was like that part which she had inspected. At the time she was inspecting the land the tenant was at work on it, but she made no inquiry of him concerning Johnson grass. After inspecting the land, she expressed a desire to deal directly with Mr. Brown, and was driven to his home by the agent. She and Mr. Brown discussed the land and deal at considerable length, in the absence of the agent. She made no inquiry of him concerning Johnson grass, but did ask him about the levee and whether the land was secure against, overflow. Brown informed her -that he regarded' the levee as safe, and that the engineer for the lévee district was of the same oniniou. They discussed the terms, and he finally agreed to hold the land for a week to see whether she eoulcl make any arrangement to make the cash payment. She returned at the expiration of that time, and the deal was consummated upon the terms heretofore set out.

The disputed facts disclosed by the record related to the issue of whether Allen represented to appellant that the farm was free from Johnson grass, and, if so, whether the misrepresentation induced her to make the purchase. Appellant, her son Henry, a Mrs. Carroll, who was visiting her, and Lucy Bell, who worked for her, all testified that Allen represented to her that no Johnson grass was upon the land. Appellant testified that she informed Allen that she would not buy the land unless it was free from Johnson grass, and that he assured her none was upon it. According to the testimony of-appellant and her witnesses, these assurances were made to her at her home in Fort Smith, before she went to see the land. She also testified that she made only one visit to the land before she purchased same.

John Q. Adams testified that appellant did not ask him whether Johnson grass infested the land, and that he did not represent that the land was free from Johnson grass. He testified nothing was said between them about Johnson grass. The tenant on the place testified that appellant visited the farm again a few days after she was there with Mr. Allen, but that «he said nothing to him when there. He said that she was not very close to him, but that he took her to be the same woman who was there with Mr. Allen.

Appellant contends that the decree of the chancellor was contrary to a clear preponderance of the testimony, and, for this reason, insists upon a reversal thereof. The tests laid down by this court in the cases of Matlock v. Reppy, 47 Ark. 148, and Neely v. Rembert 71 Ark. 91, to determine whether sales should .be rescinded on account of fraudulent misrepresentations, are as follows:

“a. Was the fraud material to the contract; did it relate to some matter of inducement to the making of the contract?
•'•u. and it worn injury?
"c. Yvas tne relative position of tne parties suon mat tne one must necessamy oe presumed to contract upon tne iaitJi reposed, m tne statements of tlie other?
"d. JJrd tne injured party rely upon tne fraudulent statements of tne otner, and did ne nave tne ngnt to rely upon them, m lull belief of their truth!”

We are inclined to agree with appellant, that the weight of the evidence shows that Allen represented that the farm was free from Johnson grass, but we cannot agree with her that this misrepresentation induced her to purchase the land. She had had considerable experience with Johnson grass, and was upon the land for the purpose of inspecting same before she closed the deal. There is some testimony tending to show that she made a second investigation of the land before the deal was closed. The land was purchased by her on account of its being close to her place of residence, so that she could more easily look after it. She took immediate possession, and had ample opportunity to discover Johnson grass before she made the first payment of $7,000. This payment was not made until September following the purchase in May. She testified that she discovered Johnson grass upon the land in the fall of 1920, and she did not take any action until April 6, 1921. This was after the slump in prices of lands and agricultural products, and some months after Lucas had 'brought his suit to foreclose his mortgage. We think this great delay in taking action indicates that she was not induced to make this purchase on account of any representations made by Allen. Had she relied upon his representations she would,' or should, have taken action upon the discovery of their falsity. The eighty acres she bought from Brown in 1918. almost doubled in value in three years, notwithstanding it • was infested with Johnson grass. This particular farm was sold three times in quick succession, in the winter and spring of 1921, notwithstanding the fact that it was infested with Johnson grass. All the rich bottom lands in this vicinity, wore infested with. Johnson grass. These circumstances indicate that there was a ready market for lands at that particular time, irrespective of whether they were infested with Johnson grass. In other words, Johnson grass did not prevent people, at that time, from investing in lands of that character, either for speculative or agricultural purposes. When these facts are considered in connection with appellant’s opportunity to inspect the land, her failure to complain until prices slumped, and that she did not bring action for a long time after she admits she discovered Johnson grass on the farm, we are impelled to the view of the learned chancellor, that the moving cause of this trade was not misrepresentations made by Brown’s agent. We think the moving cause of the trade was the high prices of agricultural products and the rising value of lands.

The decree is therefore affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Arkansas Reo Motor Car Company v. Goodlett.
    Opinion delivered March 3, 1924.
    1. Infants — estoppel by misrepresentation as to age. — An infant is not estopped by his misrepresentations as to age to avail himself of the right to disaffirm his contracts.
    2. Infants — right to disaffirm contracts. — An infant may dis-affirm his contracts, except those made in the course of his necessities, notwithstanding the other parties may be unaware of the infant’s disabilities, and without requiring the infant to return the consideration received, except such part as may remain in specie in his hands.
    3. Infants — liability for necessaries. — An infant is liable for purchases of articles which are necessaries of life, and is liable in law for the price, and cannot recover same if paid.

      Í. Infants — automobile not a "necessary.” — An infant is entitled to recover the price paid for an automobile purchased by her on returning the car, though she had misrepresented her age to the seller, such article not constituting a “necessary” for an infant.
    Appeal from Pulaski Chancery Court; John JQ. Martmem, Chancellor;
    affirmed.

      ■Carmichael & Hendricks, for appellant.
    Can an infant, by rescinding a contract partly executed and partly executory, after lie lias damaged the property by wrongful act, or in the nature of a tort, return the property contracted for and recover back that part of the purchase money paid by the infant, and after he has abused, misused and destroyed the property? We think that the better reasoning is with that line of decisions holding that the infant must restore the status quo, and therefore cannot recover his money back, as against damage. Williston, Commercial Law, p. 20; 160 N. Y. 578; 97 Ore. 464; 11 A. L. B. 495. The infant is liable under an executed contract where he has received full benefit for the thing for which he has paid, or has destroyed it negligently, wilfully or wrongfully. 14 B. C. L. 240, § 21, Infants, and 'note 13, citing* 184 Ala. 223, 63 So. 159, Ann. Cas. 1915B, 672 and note; 47 L. B. A. (N. S.), 543 and note; 4 Blackf. (Ind.) 337; 30 Am. Dec. 662; 41 Mich. 191; 1 N. W. 923; 32 Am. Bep. 152; 56 Minn. 265; 57 N. W. 934; 59 N. W. 992; 45 Am. St. Bep. 473; 26 L. B. A. 187; 84 Minn. 14; 86 N. W. 613; 87 Am. St. Bep. 326; 97 Ore. 464; 161 Pac. 660. See also 91 Ark. 262. It must not be overlooked that this is an equity case, and that, in the matter of restoration' of consideration, the privilege of infancy, while it is a shield, cannot be used as a sword. 8 Elliott on Contracts (Supplement) § 347; 73 Am. St. Bep. 705; 2 Bosw. 257; 11 A. L. B. 489, beginning at bottom of page; 67 Md. 53, 1 Am. St. Bep. 379, 8 Atl. 664; 7 Mont. 171, 14 Pac. 761. The conduct of the infant in this case amounted to a tort, and she should be held liable for the resulting damage. 76 Am. St. Bep. 64; 10 Am. & Eng. Encyc. of Law, 668, 669. To permit the infant to disaffirm the contract in this case, and recover back the consideration, is contrary to public poliejq because it encourages dishonesty. 97 Ore. 464.

      Gray, Burrow & McDonnell and Frank E. Chownincr for appellee.

      1. An infant is entitled to disaffirm his contract and recover the consideration which moved to the other party, notwithstanding the consideration received by the infant has been spent or •consumed, or has depreciated in value and it is impossible to put the other party in statu qtw; it being sufficient if the infant tender to the other party such of the consideration as remains in his hands at the moment the contract is disaffirmed. 133 Ark. 536; 103 Ark. 312; 44 Ark. 293; 14 R. C. L. 238; 90 Ark. 351, 119 S. W. 75; 26 Ala. 246; 111 Ala. 178; 61 Fla. 720; 129 Ga. 508; 241 111. 398. We have no quarrel with the maxim, insisted upon by appellant, that “he who seeks equity must do equity.” It does not conflict with appellee’s case. Bielde v. Turner, 133 Ark. 536, was an equity case and sustains appellee’s contention. On the question of torts, the law, in holding an infant liable for his torts, is solicitous not to impair the immunity given him against liability on his contracts. 14 R. O. L. 261. And, to enforce liability against the infant in this case as for a tort would be, in effect, to enforce the contract against her. The majority rule is concisely stated as follows: “An infant, on disaffirming his purchase of personal property, returned or tendered back by him, may recover what he has paid therefor, without deduction for the use or for the depreciation in value of the property.” 11 A. L. R. 491, citing 208 111. App. 171; 119 N. E. 177; 138 Mass. 310 ; 180 Mass. 140, 91 Am. St. Rep. 265, 61 N. E. 813; 183 Mich. 157; L. R. A. 19150, 362; 149 N. W. 985; 180 Pac. L72; 27 Vt. 268, 65 Am. Dec. 194; 51 Vt. 79, 31 Am. St. Rep. 678.
    2. No merit in the contention that to permit the infant to disaffirm, etc., would be contrary to public policy. 65 Am. Dec. 196; 106 Me. 104, 75 Atl. 330.
   McCulloch, C. J.

Appellant is a corporation engaged in the business of selling automobiles as a factory agency in the city of Little Rock, and incidentally selling second-hand or used cars.

On March 17, 1921, appellee, Ora Goodlett, a girl then slightly under eighteen years of age, purchased a used car from appellant for the agreed price of $650, of which appellee paid $350 in cash and gave installment notes of $25 each for the balance of the price. She subsequently paid three of the notes, making a-total of $425 which she paid on the price of the car. The car was delivered to appellee, and she ran it three of four months, and then turned it -back to appellant in a badly damaged condition; the gears were stripped; the motor was burned out on account of failure to keep it oiled while running; the tires had been worn out and replaced with cheap ones, and many other injuries had been done to the car. The proof adduced by appellant, which is scarcely disputed, is that the car was wrecked when it was returned, that it would require repairs and replacements which would cost nearly $800, and then it would only be worth about $500 as a used car, and that for these reasons it was not practicable to attempt to repair the car, and that it is only worth what it would bring as junk — from ten to twenty-five dollars.

Appellee instituted this action against appellant to rescind her contract of purchase on account of her infancy, and to recover the sum of $425 paid by her on the purchase of the car. Appellee answered, denying the alleged infancy of appellee at the time she purchased the car, and alleged that she misrepresented her age to appellant, thereby inducing the latter to sell the car, and that she had wilfully and carelessly ruined the car before returning it.

The issues were tried before the chancellor on oral testimony adduced, which has been brought into the record, and a decree was rendered in favor of appellee, canceling the contract to purchase and decreeing in favor of appellee for recovery of the money paid.

The testimony supports the finding of the chancellor that appellee was under eighteen years of age at the time she purchased the car from appellant, the purchase being made on March 17, 1921. and appellee arriving at the age of 18 on December 3, 1921. Appellee returned the car to appellant in August, 1921, and commenced this action in the chancery'court in January, 1922, shortly after she-arrived at full age. There was an attempt by appellant ■to show that appellee misrepresented her age, but this was disputed; however, it is unimportant, since we have held that an infant is not estopped by his misrepresentations to avail himself of the right to disaffirm his contracts. Tobin v. Spann, 85 Ark. 556.

There is wide conflict in the authorities as to the rights of an infant in the disaffirmance of a contract, and different reasons have been given by various courts in reaching the same conclusion.; but this court is firmly committed to the rule that an infant may disaffirm his contracts, except these made in the course of his necessities, notwithstanding the other parties to the contracts may be unaware of'the infant’s disabilities, and without requiring the infant to return the consideration received, except such part as may remain in specie in his hands. St. L. I. M. & S. Ry. Co. v. Higgins, 44 Ark. 29.3; Stull v. Harris, 51 Ark. 294; Fox v. Drewry, 62 Ark. 316; Tobin v. Spann, supra; Beauchamp v. Bertig, 90 Ark. 351; Barker v. Fuestal, 103 Ark. 312; Bickle v. Turner, 133 Ark. 536.

In none of the eases decided by this court has there been involved a contract of purchase made by an infant, .but in the decisions of other courts involving the right of an infant to disaffirm, no distinction seems to have been made between a contract of purchase by an infant and a contract for the sale of his property, and we have followed the line of decisions in other States, some of which apply the rule to a contract of purchase.

It is said to be a harsh rule that permits an infant to purchase property, paying the price therefor, and, after consuming it, wasting it, or carelessly or wilfully destroying it, sue the seller and recover the price paid; but the rule, even in instances where it is harsh in its application, is justified as the only means whereby an infant may be protected from improvident contracts. Of course, an infant is liable for Ms or her purchases of articles which are necessaries of life, and is liable in law for the price, and cannot recover the same back if paid. It can scarcely be said that an automobile is an article among the necessaries of a girl or boy under eighteen years of age.

Following the settled .principles so often announced by this court, we must hold that the appellee is entitled to recover from appellant the amount she paid on the price of the automobile.

Decree affirmed.


author: McCulloch; C. J.

text:
    Black Brothers Lumber Company v. Person.
    Opinion delivered March 3, 1924.
    Trial — withdrawal of argument. — Argument of plaintiff’s attorney that the jury could expect no different testimony from a certain witness, because he was working for defendant and would lose his job if he testified different from what it wanted him to testify, while improper, was not reversible error, where it was withdrawn, though the court refused to reprimand the attorney.
    Appeal from "White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Brundidge £ Neelly, for appellant.
    •Counsel’s remarks in Ms attempt to discredit the testimony of the witness JSamuelson was outside the bounds of legitimate argument. It was highly prejudicial and improper, and the court erred in refusing to reprimand counsel, and in failing to instruct the jury not to consider the argument for the reason that there was no testimony upon which to base it. 71 Ark. 434; 70 Ark. 306; 108',Ark. 694.

      Avery M. Blount and JolvtvE. Miller, for appellee.
    No prejudice resulted from the argument. This court will not reverse on account of improper argument, unless an undue advantage was secured thereby which worked a prejudice to the losing party, not warranted by the law and the facts in the case. 74 Ark. 256; 86 Ark. 600; 71 Ark. 434.
   McCulloch; C. J.

Appellee instituted this action in the circuit court of White County against appellant, a corporation, to recover for the price of drilling a well, the work being alleged to have been done under contract by appellee for appellant. The terms of the contract, as claimed by appellee, were set forth in the complaint, but appellant in its answer denied the terms of the contract as alleged, and, on the contrary, alleged that the contract was that appellee guaranteed that he would procure good water, and had not done so. The ease was tried before a jury on the issue of fact presented as to what the contract was, and, upon correct instructions submitting the issue to the jury, there was a verdict in favor of appellee.

Appellant presents, as the only ground for reversal, an exception to the argument of one of the attorneys for appellee.

The bill of exceptions recites that, during the argument of the case, Mr. Blount, one of the attorneys for appellee, stated to the jury that “they couldn’t expect any different testimony from the witness Samuelson, for the reason that he was working for Black Brothers, a corporation, and that they had subpoenaed him, and brought him here to testify, and if he testified any different from what they wanted him to, it would mean lie would lose his job.” Appellant objected to the statement, and asked the court to reprimand the attorney, whereupon, the bill of exceptions recites, “Mr. Miller, one of the attorneys for plaintiff, told Mr. Blount to withdraw the statement from the jury, which Mr. Blount said he would do; whereupon Mr. Neelly stated to the court that that wouldn’t cure the matter, and asked the court to reprimand the attorney, whereupon the court said to Mr. Blount that his argument was objected to.” Exceptions were duly saved. The argument was improper, but it was clearly withdrawn, and the court, in making reference to it, took cognizance of the fact that it liad been withdrawn. The only thing that counsel for appellant insisted on was that the attorney should be reprimanded. The action of the counsel for appellee and of the court was sufficient to withdraw the improper .remark from the consideration of the jury, and the failure of the court to reprimand the counsel was not prejudicial to appellant, conceding that the conduct called for a reprimand.

It is not contended that the testimony is insufficient to support the verdict or that there was any error in the court’s charge to the jury.

■ The judgment is therefore affirmed.


author: Smith, J.

text:
    National Union Fire Insurance Company v. Wright.
    Opinion delivered January 28, 1924.
    1. Insurance — payment of premium — evidence.—In an action on a fire insurance policy, evidence that insurer’s agent, having authority to issue policies, to collect premiums and to issue receipts therefor, accepted insured’s check in payment of the first premium and agreed to treat it as .a cash payment until a certain time, prior to which the property was burned, held to justify submission to the jury of the question whether the premium was paid.
    2. Insurance — change of ownership — waiver of forfeiture.— Where, after taking out a fire insurance policy on buildings and personal property, the insured notified the insurer’s general agent that he had sold the buildings, and, if the policy was not still good as to the personal property, he wanted the policy rewritten to, cover the personal property alone, and he was advised by the agent that the policy was in effect as to the personal property, the insurer will be held to have waived the rig'ht to declare a forfeiture on account of a change in the ownership of the buildings.
    3. Insurance — waiver of proof of loss — authority of local agent. — A local agent of a fire insurance agent, having power to issue policies and collect premiums, has apparent authority to waive proofs of loss, and will he held to have done so when he leads the insured to believe that proof of loss will not be required or that the notice given or action taken by the insured will he treated as a compliance with this requirement.

      4. Insurance — waiver op proof op loss — investigation.'—An. insurance company does not waive any defense it may have against a policy by sending an adjuster to make an investigation.
    5. Appeal — right to appeal — inconsistent action. — Where, in an action on a fire insurance policy, insured admitted that he owed to the insurer an indebtedness witnessed by an unpaid note and check, the fact that, after the rendition of a judgment for the amount of the policy, the insurer, with insured’s consent, caused the amount of such indebtedness to be credited on the judgment, did not affect insurer’s right to appeal.
    Appeal from Clay Circuit Court, Western District; TV. W. Bandy, Judge;
    reversed.

      F. G. Taylor, for appellant.
    1. The court should have directed a verdict in favor of the defendant, because the proof showed conclusively that the plaintiff never paid any part of the premium. 74 Ark. 507; 75 Ark. 25; 104 Ark. 288.
    2. Because plaintiff sold the land on which the insured property was located, contrary to the express provisions of the policy sued on.
    3. Because plaintiff failed to give notice and proof of loss as required by the terms of the policy. 156 S. W. 848; 108 Ark. 261; 87 Ark. 171.
    4. Instruction No. 2, given by the court on its own motion, was manifest error. It is an instruction as to a fact not in evidence. Art. 7, § 23, Constitution; 43 Ark. 289; 45 Ark. 165; 49 Ark. 165; 53 Ark. 383; 53 Ark. 244; 58 Ark. 108; Id. 504.
    5. There is no waiver of forfeiture here. The check given by plaintiff to Stephens was not paid when presented, and a notice from the home office to the effect that the premium note, due January, 1922, was unpaid, even if considered a demand for • payment, would not change the result, for the policy was already forfeited. 150 Ark. 60; 156 Ark. 77.

      Oliver & Oliver, for appellee.
    Appellant has recognized the validity of the judgment and made payments thereon. The appeal should therefore be dismissed. 3 C. J. 669; 47 Pac. 835; 175 Pac. 204; 176 Pac. 241; 190 S. W. 468; 243 U. S. 273; 61 L. ed. 715; 171 Pac. 1110; 78 So. 574; 109 Ark. 548; 192 N. W. 250; 251 S. W. 841; 61 S. E. 80.
   Smith, J.

On September 19, 1921, appellee was the owner of a forty-acre tract of land, on which there were a barn and certain other buildings. On the date mentioned the appellant insurance company issued to appellee its policy of insurance, by which it insured said buildings and certain corn and hay and seed stored therein. The policy specified the amount of insurance upon the buildings and upon the agricultural products separately. About the time the policy was issued and delivered appellee sold the land, but he remained in possession of the premises after the delivery of the deed. He did not sell the hay, etc., but it was all destroyed in a fire which consumed the barn.

Suit was brought to recover the insurance on the personal property, and the insurance company answered and denied liability on three grounds: (1), that the premium had not been paid; (2), that the policy was canceled by the sale; (3), that no proof of'loss was made as required by the policy.

Appellee testified that Stephens, the company’s agent, applied to him to take out the policy sued on, but he explained to Stephens that he did not, at the time, have the money to pay the premium; that Stephens told him it would be all right, and could be arranged by appellee giving a check for $15 of the premium and a note for the balance. Stephens was advised that appellee did not have sufficient money in the bank to pay the check at the time it was drawn, but Stephens agreed to carry the check as a cash payment for a few days, until appellee had deposited in the bank against which the check was drawn enough money to pay the check on presentation. Appellee testified that Stephens told him he would remit the company its portion of the premium, and that he later told him that he had done so. The application showed a cash payment of $15, this being the amount of the check. The deposition of the company’s service manager at Memphis, Tenn., through whose hands the transaction passed .and who acted for the company in the matter, was taken, and he was asked to attach the letter of. Stephens to the company which accompanied the application, but it was not done, .and no explanation of the failure to do so was made. It is insisted that, if this letter had been exhibited, it would have appeared that Stephens did, in fact, .remit the premium to the company, less his agent’s commission, as Stephens had told appellee he had done. Appellee further testified that he promised to pay the check on a designated Saturday, but the fire occurred the Friday preceding.

Stephens testified that he accepted the check as a cash payment, and presented it at the bank for payment, but payment was refused because appellee did not have sufficient funds in the bank, and that he called upon appellee to redeem the check, and he never at any time agreed to carry it for appellee, and he denied having remitted the company its portion of the premium. ,

This issue of fact was submitted to the jury under instructions which, in effect, told the jury that no recovery could be had because of the failure to pay the premium unless the facts were found to be as stated by appellee. The company insists, however, that this issue should not have been submitted to the jury, and that a verdict should have been directed in its favor because the check had not, in fact, been paid, and the policy provided that no recovery could be had thereon if any loss occurred during the time any part of the premium was due and unpaid. Appellant cites several cases from this court in which this provision of a policy has been upheld. But, if appellee’s version of the matter is accepted, the premium had been paid. The check was payment thereof. •Stephens had authority to issue policies, to collect premiums, and to issue receipts therefor, and if he, in fact, accepted the check as a cash payment with an agreement to treat the same as cash for .a definite time, there would have been no default in payment of the premium until appellee had failed to redeem the 'cheek, and especially is this true if Stephens clid, in fact, remit to the company its part of the premium. Home Life & Accident Co. v. Haskins, 156 Ark. 77; Robnett v. Cotton States Life Ins. Co., 148 Ark. 199; Hutchins v. Globe Life Ins. Co., 126 Ark. 360.

Upon the proposition that the policy was canceled by the sale of the land, the testimony is as follows: Appellee testified that, when he made the sale, he advised Stephens of that fact, and stated to him that, if the policy was not good as to the unsold personal property, he wanted the policy rewritten to cover the personal property. Stephens told appellee that one of the company’s general agents was in town, and the matter would be submitted to him. This was done, and the general agent was told by Stephens that the premium had been paid in cash and by a note for a year, and the general agent advised, and Stephens concurred in the view, that the policy was in effect as to the personal property, inasmuch as appellee was in possession of it, but this agent and Stephens told appellee that, if they found they were mistaken, a new policy would be issued covering the personal property, and appellee heard nothing further about the new policy. ,

If this testimony is true — and its truth was submitted to the jury upon conflicting testimony — the company will be held to have waived the provision of the policy forfeiting it in case of sale. There had been no sale of the property on which appellee sought to collect the insurance, and the conduct of the agent who issued the policy, and who had the authority to reissue one on the personal property alone, in view of the jury’s verdict, constituted a waiver.

This court had held that the requirements of a fire insurance policy in regard to the unconditional ownership and change of ownership of the insured property may be waived by the company, and will be held to be waived when its agent who issued the policy knew, at the time of its issuance, that the insured’s interest was not sole and unconditional. Georgia Home Ins. Co. v. Bennett, 134 Ark. 52; Westchester Fire Ins. Co. v. Smith, 128 Ark. 92; Queen of Ark. Ins. Co. v. Taylor, 100 Ark. 9; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475; Security Mutual Ins. Co. v. Woodson, 79 Ark. 266.

So here the failure of Stephens to reissue a policy covering the unsold personal property only, because that property was covered by the outstanding policy, is, in effect, a waiver of the forfeiture which' the company might otherwise have asserted.

On the question of the proof of loss, appellee testified that, immediately after the fire, he notified Stephens of the loss, who stated to him that he would later notify the company of the loss, and still later that he had notified the company of the loss. This statement Stephens denied. It is not contended that proof of loss was otherwise made.

We have held that a local agent, such as Stephens was shown to be, has authority to waive proof of loss. National Union Fire Ins. Co. v. Crabtree, 151 Ark. 561; Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212.

But the case was not submitted to the jury on the question of the notice of the loss to Stephens -and a waiver of proof by him. That question was eliminated from the case by the court on another theory, which was presented in an instruction numbered 2, reading as follows : “2. ' The court tells you now that the first objection is not well taken; that is, as to the proof of loss, for the reason that the proof discloses that the defendant, after the loss by fire occurred, they sent an adjuster here to adjust the loss, which was a waiver of that defense, and for that reason that defense, so far as this suit is concerned, goes out of the case.”

The testimony shows that an adjuster came to Corning, where Stephens resided and maintained his office, and examined the loss, and concluded the company was not liable. Appellee was not advised of this visit, and first learned of it during the trial. He could not therefore have been induced by this visit to refrain from making proof of loss, as the policy required him to do.

If an authorized, agent, within the time specified for making proof of loss under the policy, enters into negotiations for the adjustment of the loss, or otherwise treats this requirement of the policy as having been complied with, or :as waived, then the company cannot thereafter .defend upon the ground that a proof of loss was not furnished. Springfield Fire & Marine Ins. Co. v. State, 152 Ark. 79; National Union Fire Ins. Co. v. Crabtree, 151 Ark. 561.

It was not even made to appear that the adjuster visited Corning within the time during which proof of loss might have been furnished. But this investigation would not have been a waiver, even though it had been made within the time specified for making proof of loss. This provision of the policy is waived only when some authorized agent of the insurance company leads the insured to believe that a proof of loss will not be required, or to believe that the notice given or the action taken by the insured will be treated as a compliance with this requirement. The investigation by this adjuster was not a waiver of the requirement that proof of loss be made. Tero Petroff & Co. v. Equity Fire Ins. Co., 167 N. W. 660; Liverpool, London, & Globe Insurance Co. v. Sorsby, 60 Miss. 312; People’s Bank v. Ætna Ins. Co., 74 Fed. 507; Bakhaus v. Germania Fire Ins. Co., 176 Fed. 879.

The question of the failure to make proof of loss as required by the policy was therefore improperly withdrawn from the jury.

Appellee insists that .appellant has recognized the validity of the judgment and has accepted a benefit under it, and cannot therefore appeal. The basis of this contention is that, after the rendition of the judgment, appellant caused, with appellee’s consent, to be credited thereon the amount of the unpaid check and the unpaid note. This, however, does not affect the right to appeal. Under any view appellant was entitled to have this done. Certainly, anpellee could not collect the' insurance without paying the premium, and the effect of the credits on the judgment was to allow the company Credit for the premium, without the payment of which the entire policy would, have been void.

For the error in giving instruction numbered 2, and in failing to submit to the jury the question whether proof of loss was waived, the judgment will be reversed, and the cause remanded for a new trial.


author: Wood, J.

text:
    Augusta Cooperage Company v. Plant.
    Opinion delivered February 18, 1924.
    1. Frauds, statute of — sale of goods — delivery.—The general rule is, when something remains to be done, as between vendor and vendee of personal property, for the purpose of ascertaining either quantity or price of articles, there is no such delivery as passes the title.
    2. Frauds, statute of — sale of goods — delivery.—Where it clearly appears that it was the intention of the parties that it should be deemed and considered that the property has been delivered and the ownership of the property has been abandoned by the one and accepted by the other, and the title has actually passed, then such intention will govern, although there remains something to be done to determine the total quantity or value of the article.
    3. Frauds, statute of — jury question. — Where there is any act from which it can be inferred that the seller has delivered and the buyer has actually taken possession of personal property with intention of seller to deliver and of buyer to accept and actually receive same, the issue whether the oral contract of sale is taken out of the statute is for the jury.
    4. Frauds, statute of — jury question. — Where there are no acts from which it can be inferred that there was an intention on the seller’s part to deliver and on .the buyer’s part to receive a part or all of the property orally sold, the court should declare the contract within the statute of frauds.
    5. Frauds, statute of — jury question. — In an action on an alleged oral contract of sale of timber, whether the contract was made, and whether it was taken out of the statute (Crawford & Moses’ Dig., § 4864) -by delivery and acceptance, held for the jury.
    6. Pleading — amendment.—In an action for failure to pay for • logs claimed to have been delivered under an oral contract, there was no error in allowing the complaint to be amended at the trial to conform to the testimony as to the kind of logs the buyer was to get, and refusal of a continuance after such amendment was not an abuse of discretion, where the amendment did not change the nature of the cause of action, and no ground of surprise or prejudice was shown by the defendant.
    7. Appeal and error — conclusiveness op verdict. — Where the instructions as a whole were harmonious and fully and fairly submitted the issue of fact to the jury, and the verdict was supported by substantial testimony, the Supreme Court will not disturb it.
    Appeal from White Circuit Court; W. D. Davenport, special judge;
    affirmed.

      Geo. B. Webster and J. F. Summers, for appellant.
    1. If appellee’s case can escape the statute of frauds, C. & M. Digest, § 4864, it can only do so by virtue of the second clause, viz: the acceptance and actual receipt of a part of the logs alleged to have been sold. Yet nowhere in the record can there be found any evidence satisfactory to the judicial mind of either receipt or acceptance by the appellant. No statement of Massey’s, unaccompanied by action on his part, could operate to satisfy the statute. 124 U. S. 52. Under the statute both an acceptance and a receipt are necessary; neither, taken alone, is sufficient. The purchaser must have actually received unfettered dominion and control; there must have been a transfer of possession, either actually, by manual delivery, symbolically, by some substituted delivery, or constructively by a change in the nature of the seller’s dominion over the property. 5 Ark. 161; 27 Corp. Juris, 242; 10 Utah 31, 36 Pac. 132; 116 Ga. 1; 43 S. E. 466. There was no dispute over the facts relied on by appellee to prove receipt and acceptance. It therefore became a question of law which the court should have ruled upon as requested by the appellant. 124 U. S. 48. Independently of the statute of frauds, there was no sale, for there was no delivery. 102 Ark. 621; 100 Ark. 510.
    2. The court erred in overruling appellant’s motion for continuance, after permitting the amendment of the complaint. Amendments are not permissible when they change the cause of action. 59 Ark. 105; 75 Ark. 465; 67 Ark. 142; 71 Ark. 222.

      John E. Miller and G. E. Yingling, for appellee.
    1. Appellant’s contentions that the testimony does not take the contract out of the operation of the statute of frauds, and also that the number of feet of logs was not sufficiently proved by the testimony, both questions having been submitted to the jury under proper instructions, are settled contrary to such contentions by their verdict. Fagan v. Bourland, 5 Ark. 161, and other cases cited by appellant, do not preclude a recovery by appellant. In determining whether a party has accepted the goods or a part of them and has actually received them, in whole or in part, the intention of the parties and all the circumstances should be taken into consideration. 90 Ark. 131-133; 31 Ark. 155; 37 Ark. 483; 54 Ark. 305; 62 Ark. 592. See also 149 Ark. 318; 124 IT. S. 38, 8 Sup. Ct. Rep. 369; 35 Ark. 190; 25 R. C. L. 627, § 246; 27 C. J., § '273. Whether there has been such an acceptance or a receipt of the goods or a part of them by the buyer, under a verbal contract of sale, as will satisfy the statute of frauds and make the buyer liable, is a jury question. 39 Mo. 192; 53 N. H. 605; 71 N. Y. 295; 57 Wis. 358; 15 N. ~W. 442. Any acts from which it may be inferred that the buyer has taken possession of the goods purchased as owner, present a question for the jury to determine whether the acts were done with the intention to accept, and thus take the case out of the statute. 35 Ark. 190; 10 N. Y. 285; 120 N. Y. 213; 24 N. E. 279; 89 Wis. 86; 61 N. W. 307.
    2. Appellant saved exceptions only to the action of the court in permitting the amendment, not to its action in refusing a continuance. There was no error, no abuse of discretion, in denying the motion to continue. 93 Ark. 119, 123, and cases cited; 94 Ark. 430. Cases will be reversed only for prejudicial error. 112 Ark. 507; 137 Ark. 387; 88 Ark. 185, and cases cited; 113 Ark. 83; 152 Ark. 540.
   Wood, J.

The appellee instituted this action against the appellant to recover damages for an alleged failure to comply with an oral contract. Appellee alleged that, on or about March 1, 1922, appellant entered into a contract with the appéllee to purchase all stave timber which the appellee could cut and remove to the bank of White River, in White County, Arkansas, during the year 1922, from the lands located, in what is called “Shadden Bend.” That appellee agreed to pay therefor $10 per M for all logs which would grade No. 1 and $7 per M for all logs which would grade No. 2; that, in compliance with the contract, appellee cut and removed to the bank of White River, at the place agreed upon, 93,750 feet of first grade stave logs and 31,250 feet of second grade stave logs, of the aggregate value of $1,156.25, for which appellee prayed judgment.

The appellant, in its answer, denied all the material allegations of the complaint, and alleged that the contract, if made, was void under the statute of frauds.

The appellee testified that he had been engaged in the timber business about five years. Some time in December, 1921, he entered into a contract with one Massey, the agent of appellant, for the sale of his timber. The appellant objected to the testimony because the complaint alleged this contract was made about March 1,1922. The court overruled his objection, and the witness continued his testimony, stating that he talked to Massey the first time in December, and then about the first of the year, and later, and some time after the first of the year, they entered into the contract, whereby the appellant agreed to buy appellee’s stave stuff. Here the appellant objected to any proof pertaining to any logs other than No. 1 and No. 2, as alleged in the complaint. The court overruled the objection, and the witness continued. Massey stated that they were buying the logs for staves, and cautioned the witness about cutting them in multiples of 32 inches. They were to take five times the length of 32-inch blocks. The timber was located in Shadden Bend, and the logs were to be delivered on the bank of the river, on as bigli ground as possible as they could be conveniently placed, so that the appellant’s rafters could roll them into the river. Massey was to grade them, and to pay $10 per M for No. 1 and $7 per M for No. 2 stave logs. Witness had been furnishing logs to Wilkerson, who represented a veneer plant at Des Arc and was paying appellee $19 per M for logs on the bank. There were some logs left that Wilkerson did not take. These were on the lower yard, down the river. Massey agreed to scale and take those. He scaled some elm, and said he would scale the other when witness got it out. Witness commenced after the first of the year. He agreed to get out the timber, and agreed to put out the remainder of it that year, delivered the spring of 1922. Witness estimated that he put out 125,000 feet, and a few hundred feet over that was delivered, 1,030 logR — 93,000 and some odd feet of No. 1— and the remainder No. 2. The appellant never paid anything, and owed for all these logs. Massey said they had all the stuff,'and they were not going to take it. Massey was on the yard while appellee’s men were cutting and delivering the logs. He looked at the logs, and cautioned the witness about putting the logs on high ground and keeping them from behind trees, so that his rafters could roll them into the river. Massey knew about the character of the timber on that tract of land. He had gone over and tried to buy it before witness bought it, and then bought from witness the next year. Witness was operating only one log job in Shadden Bend. He had several different yards. Witness arrived at the number of feet by going to the log piles and scaling some of the small, medium and large logs, and in this manner arriving at the average per log, and then multiplied that by the number of logs. Witness never sold logs to any one before measuring that way, and he tried to get Massey to scale the logs. Witness did not go by cheeking off and marking each log, but he could make the estimate by looking at the logs, and considering the number of knots, and whether they were shaky or rotten or split logs. Witness had a man to help him make the estimate. Witness saw Massey at Newport, with Captain Huff and Mr. Buchanan. Witness didn’t ask Massey, on that occasion, if he was in the market for logs, and didn’t remember Massey saying that witness didn’t have anything he wanted. Witness sold some logs to Wilkerson in the fall of 1921. Witness was asked the following question: “Now, when you made this sale of logs to Mr. Wilkerson, what did you tell Mr. Wilkerson as to what he was to get?” Here appellee’s counsel asked leave to amend the complaint by inserting the words “stave timber,” which the court permitted, over the objection of appellant. Counsel for appellant stated that it was not prepared to make defense to such amendment, and asked the court to continue the cause that it might prepare its defense. This motion was overruled. ■

The witness, continuing, stated that he sold Massey all the stave timber he put off that place in 1920 and 1921. Massey took up some elm timber under this contract. Witness didn’t remember the date. York, witness’ foreman, kept up with the scaling. Witness received a check for the elm.

York testified that he was the foreman of the appellee in the winter and spring of 1922, cutting timber in Shad-den Bend. He had a conversation with Massey, appellant ’s log buyer and scaler. Witness didn’t know person- ■ ally about the terms of the contract between appellee and appellant. After witness learned about the contract, Massey gave him directions about cutting the stave timber. They were there on what they called the gum yard at the river. Massey told witness that he would take the elm and cottonwood and some small sycamore, and to cut it in multiples of 32 inches, that is, make the log long enough to multiply into 32-ineh length, to avoid waste. Massey'told witness how to pile the logs. This was while he was on what is called the cottonwood yard. A few logs had been 'put 'in behind trees and scattered about, and Massey told witness they would have to be piled up before he would scale them, and told witness how to pile them. Witness took appellee’s teams and skidded them, and loaded some on the wagons, and put them up to the pile. This was done at Massey’s request. Massey passed along the river in his boat, and told witness about the condition of the logs on another yard in Shadden Bend. He told the witness to go down' there and put them in shape, so that his rafters could get them into the river. In rafting logs.they cut what they called binders (long poles) to hold them together. Massey told witness to get out hickory, oak and ash binders for these logs in Shadden Bend. The logs at that time were on the yard, and were the logs in controversy. Witness put out the binders like Massey directed. Massey was there on the yard, and there was nothing to prevent him from seeing the logs and knowing the kind of logs they were when he told witness to take the teams and rick them up. Witness measured the number of feet that were delivered on the yards for Massey, and corroborated the testimony of the appellee as to how this was done, saying, “We scaled a few logs in each pile — maybe a third, and sometimes a half in a pile, and sometimes not that many.” They didn’t have time to go through a scale of the logs, and were not trying to get the exact number of feet, but were trying' to get somewhere in the neighborhood of it. According to witness’ estimate there were somewhere about 125,000 or 130,000-feet. There were between 85,000 and 90,000 feet of No. 1 stave logs, and the remainder were No. 2 stave logs. Witness had been in the log business for 12 or 14 years. The logs would run from 11 to 16y2 feet in length. Witness used two teams in repiliug the logs, under Massey’s direction to pile the logs in good shape so that he could get to them to scale them.

Witness stated that a veneer log had to be' a certain size. No. 1 had to be clear of shakes and knots. Two knots will make a No. 2. At the time Massey gave directions about the binders there were on the yard to be rafted only what they called the stave logs, and these did not need any binders, unless they were to be rafted.

Another witness, who was hauling logs for appellee in February and March, stated that he saw Massey on the yards twice, looking at the logs. He asked witness where appellee was and where York was, and said to witness that he would like to have some logs moved and some binders got out. He wanted the logs where he could roll them into the river. He had reference to the stave logs that were right there. All the logs that were there. Massey said a few of these logs were rougher than he wanted. They were back where they had been rolled out uf the veneer pile. Another time, about a week or ten days after the above conversation, Massey was at the yard again, looking for the appellee. Massey then stated he had come there to scale the logs, and that he would like to see the appellee. Witness told him that he was going over where the appellee was, and would tell him, and appellee hurried right back there. Witness supposed that Massey was going to scale the stave logs. Those were all that were there, except a little hickory, and Massey could not use that. Witness saw Massey again, about the first of May, in 'Bald Knob, and asked him why he didn’t scale those logs, and he replied “The reason I didn’t scale them, Plant let some big cottonwood go out that he wanted that he didn’t get.”

Two other witnesses testified for the appellee, to the effect that they saw Massey on the yards while they were getting out timber. One of the witnesses stated that he saw Massey in a conversation with York, appellee’s foreman, and, after Massey left, witness received instructions as to how to cut the timber. The timber was stave timber, and cut in multiples of 32 inches, 11%, 13 and 16% feet long.

Wilkerson testified for the appellant, to the effect that he purchased from the appellee, from Shadden Bend, 260,000 feet of timber, beginning December 15, 1921, and the last scale was made some time in February, 1922. Witness purchased such logs as he could use for veneer. He took all the clear logs, 16 inches and up, and a few less than 16 inches. Witness took all the No. 1 oak and cottonwood that appellee had up to the time witness quit. Witness saw Massey on the yard one time about December 15. He scaled some logs there. Massey and witness had a conversation, and, after the conversation, Massey scaled the logs. Witness bought only gum and very little cottonwood in ten, twelve, fourteen, sixteen and eighteen-foot lengths. The size, cut and purpose for which the logs were to be used governed the price. Witness was asked if he knew the difference in the sizes of logs used for staves and the size used for veneer, and answered, “We use 16-inch and up — sometimes we get smaller logs. ’ ’ He was further asked, “Do they use in the manufacture of staves logs you cannot use in a veneer mill?” and answered, “Yes sir, they do.”

Massey testified to the effect that he bought some logs from the appellee in 1922, but made no contract with him for future delivery of logs from Shadden Bend. He looked at appellee’s logs, and they were cull logs. He testified to a conversation he had with appellee, in the spring of 1922, when Captain Huff and Mr. Buchanan were present, in which appellee asked witness if he was buying logs, and if he would make a scale of appellee’s logs. Witness told appellee that it was no use, as he had culled them out and sold them to Wilkerson. He denied the testimony of appellee’s witnesses to the effect that he had directed the piling of the logs. Witness supposed there were 35,000 feet on all the yards. Appellee had no No. 1 logs.

Witnesses Huff and Buchanan corroborated the testimony of appellant as to the conversation appellant testified had occurred between him and appellee. There was other testimony corroborating the testimony of appellant to the effect that he didn’t purchase appellee’s logs because there was nothing on appellee’s yards that he wanted. Witnesses testified to the effect that a No. 1 stave log -would be clear. To make a profitable business one would want clear logs to make staves, tbe same as lumber or veneer. There was no distinction between them.

Tbe court, in instruction No. 1, given at tbe instance of tbe appellee, told tbe jury, in effect, that, if tbe appellant agreéd to purchase from tbe appellee all tbe merchantable stave timber in Sbadden Bend, during tbe winter and spring of 1922, at tbe prices specified in tbe complaint, and tbe appellee agreed to cut and deliver all such timber, and complied with his contract, they should find in bis favor, unless they found that tbe contract was within tbe statute of frauds, to be defined by the court.

In instruction Ño. 2 the court told tbe jury that, if there was an agreement of sale and purchase between appellee and appellant, as defined in tbe first instruction, and if the appellee delivered the logs pursuant to tbe contract, and if tbe appellant actually received tbe logs, or a part of them, into its possession, and controlled and accepted them, or a part of them, then tbe statute of frauds could not avail tbe appellant, and tbe verdict should be for tbe appellee.

At the request of tbe appellant tbe court instructed tbe jury that, if they should find appellant and appellee entered into a contract as alleged in the complaint, unless tbe appellee was obligated to furnish what log’s be cut to tbe appellant, tbe contract would lack mutuality; and, if they should so find, their verdict should be for the appellant.

Tbe court also instructed tbe jury that, unless the quantity of tbe logs could be reasonably ascertained or approximated, they should find for tbe appellant. Appellant’s prayer for instruction No". 6 is as follows: “If you find that defendant contracted with plaintiff, and that plaintiff cut logs Nos. 1 and 2, you are instructed that defendant bad the right to expect and demand all the logs cut and hauled to White River by plaintiff, and if you find that plaintiff, without giving defendant an opportunity to accept said log’s, but offered and sold a part of the No. 1 logs to other parties, such act would be a breach of the contract on the part of the plaintiff, and he could not compel defendant to accept No. 2 logs as a fulfillment of the contract, and, if you so find, your verdict will be for defendant.” The court modified this prayer by adding the following: “Provided you find that No. 1 and No. 2 logs, as to stave timber, is the same grade of timber as grades No. 1 and No. 2 of veneer and other such numbers of grades of timber.” The instruction was given as thus modified. The appellant duly excepted to the ruling of the court in refusing to give the prayer as offered and in modifying same and giving it as modified. The jury returned a verdict in favor of the appellee in the sum of $750. Judgment was rendered in favor of appellee in that sum, from which is this appeal.

1. The statute of frauds provides that no contract for the sale of goods, wares and merchandise for the price of $30 or upward shall be binding on the parties, unless, first, there be some note or memorandum signed by the party to be charged; or, second, unless the purchaser shall accept a part of the goods so sold, and actually receive the same. Section 4864, C. & M. Digest. The alleged oral contract here was for the purchase and sale of timber over the value of $30. The principal quéstion in this case, and the one that has given us greatest pause, is whether or not the appellee, on whom was the burden of proof, has adduced any testimony of a substantial character tending to prove that his alleged cause of action was not within the operation of this statute. ¥e early announced the rule, which has not since been departed from, that “where something remains to be done as between vendor and vendee of personal property, for the purpose of ascertaining either quantity or price of the articles, there is no such delivery as passes the title.” Fagan v. Faulkner, 5 Ark. 161.

In Priest v. Hodges, 90 Ark. 131, after reiterating the above doctrine, we said: “But if it clearly appears that it was the intention of the parties that it should be deemed and considered that the property has been delivered, and the ownership of the property has been abandoned by the one and accepted by the other, and the title has actually passed, then such intention will govern, although there remains something to be done to determine the total quantity or value of the article. ’ ’

In King & Clopton v. Johns, 35 Ark. 190-197, we said: “Where the minds of the parties have assented to the present purchase and sale of a specific chattel, which may be clearly identified and separated from other property, and the sale be dependent on no conditions nor contingencies, and such possession be given as the nature of the subject and the situation of the parties with regard thereto will permit of, and the vendor had done all that is required of him with respect to the property, the title will pass. And this will be so, notwithstanding something may be still necessary, on the part of the vendee, to ascertain the exact price.”

In Jones v. Reynolds, 120 N. Y. 213, it is held that, where there is any act from which it may be inferred that the seller has delivered and the buyer has actually taken possession of personal property, with the intention' on the part of the seller to deliver and on the part of the buyer to accept and actually receive same, then the issue as to whether the oral contract of sale is taken out of the statute of frauds is one for the jury. This is the doctrine of the authorities generally. See Becker v. Holm, 89 Wis. 86; Gray v. Davis, 10 N. Y. 285. See also Williams v. Evans, 39 Mo. 206; Pinkham v. Mattox, 53 N. H. 605; Bass v. Walsh, 39 Mo. 192; Burrows v. Whittaker, 71 N. Y. 295; Somers v. McLaughlin, 57 Wis. 358; Hinchman v. Lincoln, 124 U. S. 38-48.

The converse is equally true, as shown by the above cases, that, where there are no acts from which it can be inferred that there was an intention to deliver a part or all of the property by the seller, and no intention to accept and actually receive a part or all of the property by the buyer, then the court should declare, as a matter of law, that the alleged oral contract is within the statute of frauds, and void. Now, applying the law to the facts, ' we have reached the conclusion that it was an issue for the jury, first, to determine whether or not there was an oral contract between appellee and appellant for the sale of stave timber, as set up in the complaint, and, second, whether or not there was a complete delivery of the timber by the appellee to the appellant, and whether or not the appellant accepted and actually received the same so as to take the alleged oral contract, if made, out of the statute of frauds. There is ample testimony to sustain the finding that appellee and appellant entered into a contract by which appellee was to sell all of his stave logs or timber of the grades and at the priced specified in the complaint. While the testimony is meager, it nevertheless occurs to us that there was some substantial testimony which justified the court in sending to the jury the issue as to whether or not the appellant, by the acts of its agent, Massey, accepted and actually received the logs in controversy. There was testimony tending to prove that the appellee delivered the logs at the yards on the bank of the river, where the appellant’s rafters could roll them into the river; that appellant actually received and paid for the elm logs — a part of the stave timber; that, through its agent, Massey, appellant, after they were so delivered, directed the manner of piling the logs so as to make them more readily accessible for scaling and rolling into the river; that Massey directed how the timber should be cut, and ordered binders for tying the particular logs in controversy together so they could be rafted.

These are facts from which the jury might have found that the appellant had actually received and accented the timber in controversy. Without further discussing the evidence, it suffices to say that the issue on the statute of frauds was submitted to the jury under correct declarations of law, and there was testimony to sustain the verdict on this issue. Therefore the court did not err in refusing prayer for a peremptory instruction.

2. There was no error in allowing appellee to amend his complaint, nor in refusing appellant’s motion to continue the cause after such amendment. The amendment was not of such a nature as to change appellee’s cause of action, and the appellant did not show any grounds of surprise which would entitle it to a continuance of the cause. It did not show how it was prejudiced by the amendment. The matter, under the circumstances, was in the discretion of the court, and the court did not abuse its discretion. Brown & Hackney v. Lovelace, 152 Ark. 540; Oakleaf Milling Co. v. Cooper, 113 Ark. 83.

3. We find no error prejudicial to the appellant in the rulings of the court in the admission of testimony.

4. This brings us to the consideration of appellant’s assignments of error in the rulings .of the court in granting and refusing prayers for instructions. The appellant contends that appellee’s prayer for instruction No. 1 is erroneous because of the use of the terms “merchantable timber” and “stave timber.” This language did not render the instruction erroneous, under appellee’s amended complaint and the facts which the testimony of the appellee tended to prove. The amended complaint showed that appellee was suing for the value of certain stave logs of the price and grades mentioned, and his testimony tended to prove that this was merchantable stave timber. Appellee was only contending for the value of stave logs that were merchantable, and there could be no possible prejudice to the appellant in confining the inquiry to logs of that character. There was testimony tending to prove that stave logs of grades numbers one and two, of certain dimensions, constituted the only merchantable stave timber in “Shadd'en Bend,” and that appellee had agreed to sell and appellant to buy all this timber; that the contract between appellee and appellant embraced all this stave timber, but did not include the timber suitable for veneer; that there was a distinction between the timber for veneer and the stave timber; that the veneer timber was of larger dimensions and of higher grade and price than the stave timber. There was testimony also tending to prove that veneer timber would include number one stave timber. There was testimony tending to prove that appellee sold veneer timber, which would include No. 1 stave timber, to another company, during the time covered by the alleged contract with appellant'.

Now the trial court, in its instruction No. 1, given at the instance of the appellee, and in instruction No. 6, prayed for by the appellant, and modified and given as modified, over appellant’s objection, correctly declared the law applicable to the facts which the testimony tended to prove. While the modification to appellant’s prayer for instruction No. 6 is not as clear, perhaps, as it should have been, yet, when considered in connection with the testimony, it could not have misled the jury. The instructions, as a whole, are harmonious, and fully and fairly submitted the issues of fact to the jury; and, since there is substantial testimony to sustain the verdict, we cannot disturb it. Duff v. Ayers, 156 Ark. 17; Franks v. Rogers, 156 Ark. 120.

There are no reversible errors in the rulings of the trial court. Its judgment is therefore affirmed.