text:
    Trimue v. McCaleb.
    Opinion delivered November 15, 1926.
    1. Appeal and error — review of direction of verdict. — In reviewing the correctness of a direction of verdict for plaintiff, the testimony will be viewed in the light most favorable to defendant.
    2. Brokers — failure to complete transaction. — Evidence held to sustain finding of the insolvency of the makers of purchase-money notes, payment of which was a condition of liability for a broker’s commission.
    3. Bills and notes — bona fide purchaser. — One who acquired notes after maturity is not a holder in good faith under Crawford & Moses’ Dig., § 7767.
    4. Brokers — rights to commission. — Where a broker’s commission was payable when the first purchase money should be paid, the fact that the purchasers became insolvent and deeded the land back to the vendor did not constitute such a payment as would render the vendor liable for the broker’s commission, though the purchasers had made a cash payment exceeding the amount of the commission and also a small payment on the first purchase-money note.
    5. Brokers — right to commission. — Indorsement of satisfaction of a vendor’s lien on the margin of the record where the deed was recorded held not payment of such lien, so as to render payable a note given to a broker payable on payment of the first purchase-money note.
    6. Brokers — right to commission. — The rule that the insolvency of a purchaser after the owner has accepted him will not deprive the broker of his commission for procuring a purchaser held inapplicable where payment of such commission was conditioned upon the purchaser paying his first purchase-money note, which was never paid.
    Appeal from Craighead Circuit Court, Jonesboro District; W. W. Bandy, Judge;
    reversed.

      Basil Baker, for appellant.
   Smith, J.

Appellee recovered a judgment against appellant as the maker of a note for $250, dated January 1, 1920. The note was payable to the order of T. W. Altman, a real estate agent, and by him indorsed to appellee. At the conclusion of all the testimony the court directed the jury to return a verdict in appellee’s favor, and we must therefore view the testimony in the light most favorable to appellant, and, when thus viewed, the testimony may be summarized as follows:

Appellant owned a small farm, which he authorized Altman to sell at a price which would net appellant $3,500 in cash, and Altman procured Moskopp and Haas as purchasers, but they were able to pay only a thousand dollars of the purchase money in cash. A sale to Moskopp and Haas was negotiated at the price of $4,000, of which $1,000 was to be paid in cash. One thousand and nine hundred dollars of the purchase money was evidenced by three notes, two for $633 each, and a third for $634. The balance of $1,100 consisted in the assumption of the payment of a mortgage for that amount outstanding against the land at the time of the sale. The purchase price of $4,000 which Moskopp and Haas agreed-to pay was $500 in excess of the price which appellant agreed to take, and this excess represented Altman’s commission in the sale.

Appellant was unwilling to accept Moskopp and Haas unconditionally as purchasers of the land, so far, at least, as the payment of the commission was concerned, and, in payment of the $500 commission, he executed two notes to Altman’s order, each for the sum of $250, the note here sued on being one of- them, and the first one to fall due. The understanding between appellant and Altman was that the first note for the commission was to be paid when the first purchase money note was paid, and the second note for commission was to be paid when the second purchase money note was paid. As evidencing this agreement, the note here sued on has written in its face this condition: “This note is payable when Moskopp and Haas pay their first land note in favor of J. S. Trimue” (appellant).

At the time of the negotiations for the sale of the land it was understood and agreed by all the parties, including Altman, that, upon the maturity of the outstanding mortgage against the land, Altman would aid' the purchasers, Moskopp and Haas, in procuring a new loan, and for a sum sufficient to pay the mortgage indebt-edness and to discharge another lien against the land for $275 and the interest thereon.

Altman negotiated a new loan in the sum of $1,500 for Moskopp and Haas, and out of the* net proceeds thereof paid the $1,100 mortgage and the accumulated interest and the $275 lien, which, with the interest thereon, amounted to $305'. The small balance remaining was credited equally on each of the three purchase money notes.

The loan company agreed to make this loan only upon the condition that it be given a first lien, and, to accomplish this purpose, it was required, not only that the two outstanding liens above referred to be canceled and satisfied, but also that appellant cancel his vendor’s lien to secure the unpaid purchase money due him, and this he did by indorsement of payment of the purchase money notes on the margin of the record where his deed to Moskopp and Haas was recorded. Thereafter appellant took from Moskopp and Haas a second mortgage on the land to secure the unpaid purchase money due him. Evidencing this indebtedness, three notes of Moskopp and Haas were taken, which gave a more extended time for payment than the original purchase money notes gave.

. Altman was aware of and was a party to all these arrangements; indeed, it was he who negotiated and consummated the new arrangements, and this was done pursuant to an understanding had at the time of the original sale of the land.

Moskopp and Haas were unable to make any additional pajments, either on the purchase money or on the mortgage which they had given to the loan company. Moskopp and Haas had both become insolvent. The court below found the fact so to be, and, if their insolvency is not shown by the undisputed .evidence, it may at least be said that the testimony was sufficient to support that finding. Moskopp testified that both he and Haas were insolvent, that Haas realized his inability to pay anything on the land, and he abandoned it. Moskopp further testified that he, too, was insolvent, and he was. shortly thereafter adjudged a bankrupt, and at the time he gave his testimony at the trial.below he had received his discharge in bankruptcy.

Haas abandoned the land, but joined with Moskopp in reconveying it to appellant in satisfaction of their notes for the purchase money, and-'a quitclaim deed was executed by them for that purpose, and appellant, with the knowledge and consent of Altman, accepted this deed in satisfaction of the debt due him from Moskopp and Haas, but he testified that this was done Only because he knew that Moskopp and Haas were insolvent, and that a suit against them could result in nothing more favorable than a decree foreclosing the mortgage under which the land could be sold, and that he accepted the quitclaim deed to accomplish the only purpose which a foreclosure, suit could accomplish and to avoid the expense of foreclosure. He thus recovered the land, but took it subject to the $1,500 mortgage which Moskopp and Haas had executed to the loan company.

The court below had the view that, when Moskopp and Haas' deeded the land back to appellant and he surrendered to them their notes, this was, in law, a payment, and made the note here sued on due and payable, and, upon this theory, directed the jury to return a verdict in appellee’s favor for the amount of the note, and this appeal is from the judgment pronounced on the verdict so returned.

There is no question in the case about appellee being the holder in good faith of a negotiable note, for value, before maturity. This is true for two reasons. First, according to the testimony on appellant’s behalf, appellee did not acquire the note until after its maturity; and, second, the note was not an unconditional promise to pay money, either on demand of at a fixed or determinable future time. Section 7767, C. & M. Digest.

The question therefore is whether there was such a payment of the purchase money notes as matured and made payable the notes given for the ’broker’s commission.

We think the court was in error in holding that the purchase money notes had been paid, under the circum-' stances herein recited, and, not having been paid, the ■ agent’s commission was never earned.

The doctrine announced in the ‘case of Boysen v. Frink, 80 Ark. 254, 96 S. W. 1056, applies here. In that case the broker had negotiated a sale of a tract of land, under a contract with the owner which provided that the broker should have a commission of seventy-five cents per acre on the land sold, one-half of which was to be paid when one-third of the purchase price had been paid, and the other half of the commission was to be paid when one-half of the purchase price of thé land had been paid the owner. The proposed purchaser was insolvent, and did not pay any of the purchase money notes. The agent recovered judgment for. the full amount of the commissions.

In reversing this judgment it was said that it was the duty of the broker to furnish a customer able and willing to comply with the proposed sale before he is entitled to commission, when the commission is conditioned on payment of the purchase price. In that case the owner accepted from the proposed purchaser a thousand dollars as reimbursement for losses and expenditures caused by the breach of contract, and there was testimony on the part of the owner that he made diligent, but unsuccessful, effort to collect the purchase money notes. It was said that, if the thousand dollars was accepted in good faith as a reimbursement of losses for- the proposed purchaser’s breach of contract, and-that the contract, to the extent of the agent’s interest, could not be enforced, the agent had no case against the owner. The court also said that, if the thousand dollars was not accepted in good faith as a settlement of an otherwise uncollectable debt, but was accepted as a deal more advantageous to the owner than the enforcement of a valid sale, the owner would have to pay the1 agent before casting up his profits on the venture.

The court said: “If the purchaser was insolvent, no harm could be worked to Prink (the agent) by surrendering worthless notes; nor could any harm be worked him if the purchaser was irresponsible and yet paid Boysen (the owner) something (less than one-third the purchase price) for return of the notes, because Prink could not recover any commission until payment of one-third of the purchase price was made, nor all of his commission until payment of one-half the purchase price was made.”

In this case,' as in that, the owner had protected himself against the demand of the agent for a commission by stipulating when the commission should be paid, and the condition was never met in either case. The proposed purchaser in each case was insolvent, and, because of insolvency, the owner there, as here, was unable to enforce the contract of sale.

It is true Moskopp and Haas paid appellant a thousand dollars in cash, and that this sum exceeded the agent’s commission; but it is also true'that this payment was not the one which determined when the broker’s commission should be paid. That was dependent..up on the payment of the first and .second purchase money notes, and the payment of these notes could not be enforced because of the insolvency of the makers, and it may therefore be said here, as was said in the Prink case, that no harm was done the broker by surrendering worthless notes.

If it be said that Moskopp and Haas made appellant a small payment on each of the three purchase money notes, it may be answered that the total sum credited on all three of these notes did not equal the first purchase money note, and it may be further said that the amount so paid was derived from the proceeds of the mortgage to the loan company,.and appellant, in retaking-the land, took it subject to this increased indebtedness.

We think the views here announced are not in con■flict with the opinion in t'he case of Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35. There a broker had negotiated a sale under which his commissions were payable when certain parts of the purchase money were paid, and it was held that the fact that the real estate broker was postponed in his right to recover his commission until the purchase money was paid did not relieve the vendor of liability to pay such commission if, notwithstanding the purchaser was financially responsible, ■ the vendor refused to collect the purchase money. But in that case the opinion recites the fact to be that the purchaser of the land was able to carry out the contract of purchase, and, this being true, the court held that it was the duty of the owner to sue the purchaser and compel payment, but that, having failed to discharge this duty, he must pay the broker his commission.

But just here is the distinction between that case, on the one hand, and the Frink case and the instant case, on the other. The purchasers here and in the Frink case were insolvent, and suit against them would have been fruitless, and the law does not require one to do a vain and useless thing. In the Pinkerton case the owner, by suing the proposed purchaser, could have enforced the contract or have collected damages for its breach, while here and in the Frink case suit against the proposed purchasers would have been unavailing, so far as collecting the purchase money is concerned.

The indorsement of satisfaction of the vendor’s lien in appellant’s favor on the margin of the record where his deed to Moskopp and Haas was recorded, was not a payment, and was not understood to be; indeed, the court did not so hold. The payment, in the opinion of the court below, consisted, not in the’satisfaction of the vendor’s lien, but in accepting a deed from Moskopp and Haas and the surrender to them of their purchase money notes; but, as we have shown, this was not a payment, because the notes were worthless, and the deed was accepted on that account, at least the jury might have found the fact so to be, and would have done so had they accepted appellant’s version of the transaction, and, for this reason, the court was in error in directing a verdict in appellee’s favor.

There are numerous cases in which it has been held-that, if the owner accepts a proposed purchaser and enters into a binding contract with him, the existent or subsequent insolvency of the purchaser does not deprive the broker of his commission; but the rule is otherwise where the owner stipulates that the commission shall be payable under certain conditions, and those conditions áre not complied with .through no fault of the owner. Harnwell v. Arnold, 128 Ark. 10; Moore v. Irwin, 89 Ark. 289; Coleman, v. Edgar Lumber Co., 155 Ark. 275.

The judgment of the court below must therefore be reversed, and the cause remanded for a new trial, and it is so ordered.■


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Heagler & Sons v. Biggs.
    Opinion delivered November 15, 1926.
    1. Drains — allowance of claims against defunct district — burden OF* PROOF. — Where a drainage district had been -dissolved under Sp. Acts 1921, No. 590, before the assessment of -benefits had been 'completed, and the chancery court, pursuant thereto, found the amount due to- the several claimants against the district, the burden was on landowners of the district to show that the allowances were inequitable or unjust.
    2. Drains — abandonment—-claims.—Where a drainage district was abandoned before the assessment of -benefits was completed, the engineers and attorneys were entitled to recover, compensation for their services only on a quantum, meruit basis.
    3. Drains — abandonment—reasonableness of allowance. — In determining the reasonableness of an allowance to engineers made by the trial court upon a quantum meruit basis on abandonment of a drainage project, the fact that the engineers’ contract with the district provided that, in case of abandonment, they should receive 10 per cent, above the amount actually expended by them, should be considered in determining whether such allowance was fair and just.
    4. Drains — abandonment—attorneys’ fees. — In determining the value of attorneys’ services on the abandonment of a drainage project, it is proper to take into account, not- only the skill and learning of the attorneys, but also the net results achieved by them.

      5. Drains — abandonment-—allowance of claims. — Evidence held to sustain findings of the court fixing fees for attorneys at $1,500 and for engineers at $13,685.48 for services on a drainage district that was abandoned.
    .Appeal from Greene Chancery Court; P. A. Lasley, special Chancellor;
    affirmed.

      Robert E. Fuhr, for appellant.

      Block & Kirsch, for appellee.
   Smith, J.

On February 18, 1915, by an order of the county court of Greene County, a small drainage district was established embracing lands on each side of what is known as Locust Creek ditch, including about ten sections of land. Huddleston, Fuhr & Futrell, attorneys, were appointed attorneys for the district. They prepared the papers necessary for the establishment of the district, and found there were three or four sections of land which were embraced in what was known as the St. Francis Drainage District of Greene and Clay counties, an improvement district created by a special act of the General Assembly, which act provided that no other improvement district should be created within its borders, and no further action was taken in the organization of the Locust Creek Drainage District.

In 1917, apparently for the purpose of curing this defect, the General Assembly passed act 357, creating a drainage district which embraced practically the same lands' as were included in the order of the county court, with an additional section of land. Under this act the viewers of the original district were named as the commissioners for the new one, and the act creating the St. Francis Drainage District was amended so that the lands of that district might also be included in another drainage -district. C. E. Waddell was appointed engineer for the new district, and the same firm of attorneys was named as attorneys for the new district.

A survey was made by Waddell, and a number of meetings were held by the commissioners, and the engineer finally filed a report, in which lie stated that the cost of the project would be too great to impose on an area so small, and be recommended that the district be enlarged to include other lands which would, in his’’opinion, be benefited by the proposed improvement.

For the purpose, evidently, of carrying the recommendations of the engineer into effect, the General Assembly, at its 1919 session, passed act 39, enlarging the district by adding thirty-four sections of land. New commissioners were named in the act of 1919, and, after they had qualified and organized, they employed the firm of W. R. Heagler & Sons as engineers, and the same firm of attorneys was employed as attorneys for the district.

The new engineers made a survey and prepared plans for the proposed improvement, which were filed with the commissioners, and an assessment of benefits was made, based upon these plans.

At this juncture the General Assembly, on the 24th day of February, 1920, passed act 224, enlarging the district so that its area embraced 61,000 acres of land, and included practically all the territory in Greene County between Crowley’s Ridge and the St. Francis River. This act reappointed the three commissioners of the previous district, and added-two more. After the commissioners qualified, the same firm of engineers continued to do the engineering work, and the same firm of attorneys was re-employed to do the legal work.

In the district established under act 39, as amended by act 224, two plans for the reclamation of the lands in the district were submitted by the engineers. The engineers were admonished by the commissioners that previous plans had been found to be impractical, and they were enjoined to profit by the previous failures and to prepare the new plans with great care. A plan was finally adopted, and the commissioners proceeded to assess the betterments based upon the plan adopted, but, before the assessment was' completed, the General Assembly, on March 28, 1921, passed act 590, repealing the prior acts creating the district.

The estimated cost of the improvement under the plans finally approved was $1,181,082.60, and the number of acres of land in the district was 61,081.

The engineering problems were shown to be quite difficult, and involved taking care of the run of water from the hills on the one hand and the flood water of the St. Francis River on the other.

The act dissolving the district provided that all claims against the district should be presented to the commissioners of the district within a time limited, and that the commissioners should pass upon and approve such claims as were found to be proper, and the commissioners were required to file with the circuit clerk a certificate showing the demands which had been approved and allowed, and the amounts thereof.

Pursuant to the provisions of the dissolution act, the attorneys presented a bill for $3,000, this bill to include all work necessary to be done in winding up the affairs of the district. The claim was allowed by the commissioners in the sum of $2,750.

The engineers presented a bill for $16,245.59, against which there was a credit of $6,000, leaving the balance claimed of $10,245.59. The commissioners allowed the engineers the sum claimed. In addition, the commissioners approved claims for their own services. Having thus ascertained the amounts for which, in their opinion, the district was liable, the commissioners filed a complaint in the chancery court, in which it was prayed, pursuant to the provisions of the dissolution act, that the sum found by them to be due by the district be declared a lien on the lands of the district, and that an assessment be made against the lands to discharge this indebtedness.

Certain owners of lands in the district intervened in this proceeding, and challenged the allowances-made by the commissioners to the engineers and the attorneys and to the commissioners themselves as excessive. The chancery court heard testimony, and reduced the fee of the attorneys from the sum of $2,750 allowed by the commissioners to the snm of $1,500. The claim of the engineers, with the interest thereon, as allowed by the commissioners, was for $17,761.35, and the court found that this was excessive, and the claim was reduced to $13,685.48. The court found that the claims of the commissioners for their per diem were just and equitable, and the intervention as to those items was dismissed, and a decree was entered in favor of the engineers and the attorneys for the amounts stated, and they have appealed.

It thus appears that the question presented is one of fact — whether the chancery court allowed the engineers and attorneys a fair and reasonable compensation for their services.

The case presented is not unlike that of Gould v. Toland, 149 Ark. 476, 232 S. W. 434, and .the principles there announced are controlling here. In that case it was said that, “while much weight must lie given to settlements made by the board under the act (of dissolution), they cannot be regarded as final. The effect of the ascertainment and settlement-necessarily casts upon the landowners in the district the burden of showing that the allowances were inequitable and unjust.” That case is authority also for holding that the engineers and the attorneys must be compensated upon a qucmtum meruit basis.

The engineers presented an itemized statement of their account, which embraced' many items, all of which appear to have been allowed except an item which reads as follows: “Engineering services, rendered during period February, 1919, to August, 1921, as per detailed statement, page 12, $2,320.”

It appears from the brief of appellees that, when this item is excluded and the interest is calculated on the remaining items, the court allowed all other expenses and charges claimed by the engineers.

It will be remembered that the appellant engineers are not the only engineers who made surveys relating to the proposed project, and it appears also that the above item, covers services rendered to August, 1921, a period of time extending five months after the dissolution of the district.

The contract between the engineers and the district contained a clause in which it was provided that, if it appeared, after completed plans of the proposed improvement had been made, the project should be abandoned on account of the excessive cost, the engineer should be compensated by “the payment to him of the amount of money actually expended in making said survey, plans, estimates and costs, drawings, etc., plus ten per cent, of this amount.” It appears that the court, in fixing the sum to be allowed the engineers, took into account this provision of the contract, and allowed this additional ten per cent., but the property owners make no complaint of that action. We need not therefore determine whether this allowance should have been made in ascertaining the sum earned by the engineers in settling with them upon a quantum meruit basis in accordance with the rule announced in the case of Gould v. Toland, supra, but it is at least proper for us to consider this allowance in determining whether a fair and just settlement was made with the engineers.

This item of $2,320 is a comprehensive one, but, as we understand the testimony, numerous charges are included in the itemized statement filed by the engineers between February, 1919, and August, 1921, which would be covered by and included in the general designation of engineering services. We do not know whether this is a duplication or not. It may not be, at least not entirely so, but the court appears to have allowed the engineers all the charges which were itemized, and they were varied and extensive.

We do not review these items, as we think no useful purpose would be accomplished in doing so, but, after considering the testimony and assuming that the court below had in mind our decision in the case of Gould v. Toland, supra, that the burden was on the landowners of showing that allowances made by the commissioners were inequitable and unjust, we are unable to say that the conclusion reached by the court below is contrary to the preponderance of the evidence.

As to the attorneys’ fees, it may be said that, in determining their value, it is proper to take into account, not only the skill and learning of the attorneys, but also the net results achieved by them. Vaughan v. Woodruff-Prairie Road Imp. Dist. No. 6,158 Ark. 236, 250 S. W. 870. It is not questioned that the attorneys have served the district faithfully and well, but it stands as an undisputed fact that the project was terminated by the repealing act of the General Assembly, so that no actual benefits have been received by the landowners. The project did not proceed to the point where an assessment of betterments was approved, and no part of the plans were ever executed. This fact is not controlling in determining what the compensation of the attorneys should be, but it is one which cannot be ignored.

The attorneys attended numerous meetings of the board of commissioners, and no doubt were called upon for opinions on many subjects, but they appear to have actually drawn only one contract, the one being the contract between the district and the engineers. It appears that the attorneys successfully resisted an attempt to eliminate certain lands from the district, but the trial of that question in the court below where it originated was conclusive of the question, as no appeal was prosecuted.

It appears that a suit is necessary ag’ainst the landowners- of the district to enforce the lien which was decreed against the lands of the district to discharge, the allowances made pursuant to the act of dissolution, but it also appears that $500 of the $1,500 allowed was allowed for this purpose, and, as we understand it, a single proceeding for this purpose will suffice. It is not contemplated that annual suits will be brought, as occurs in going districts where there are annual delinquencies for the nonpayment of taxes.

It does appear that the fee allowed the attorneys here is a more modest one than has been allowed in other cases which have come before us for review, but each case must be considered on its own merits, and, after a careful consideration of all the testimony, weighed as we have weighed the testimony in regard to the engineers’ claim, we are unable to say that the finding of the court below is contrary to the preponderance of the evidence, and we must therefore affirm the decree fixing the fee of the attorneys as well as that of the engineers. It is so ordered.


author: Humphreys, J.

text:
    St. Louis, Kennett & Southeastern Railroad Company v. Ballard.
    Opinion delivered November 15, 1926.
    1. Evidence — opinion as to land values. — In an action for damages to strawberry land from a railroad fire, witnesses acquainted with the values of surrounding lands were competent to testify as to the value of land adapted to strawberry culture, of land set with strawberry plants, and of the comparative productive value of land set with one,, two and three-year-old plants.
    2. Appeal and error — estoppel to allege error. — Where the railroad company, in an action for damages to strawberry lands from fire, contended in the trial court for a certain measure of damages, it cannot, on appeal, contend for another measure of damages.
    3. Railroads — liability for fires — instruction.—An instruction in effect that a railroad company is liable for negligently allowing hoboes to build fires on its right-of-way from which injury resulted to plaintiff’s land held proper.
    4. Trial — argument of counsel. — Where counsel for defendant asked leading questions from its witness, it was not error to permit plaintiff’s counsel to express the opinion that the manner of interrogating witnesses amounted to coaching or cautioning the witnesses.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      Arthur Sneed, for appellant.

      Ward & Ward, for appellee.
   Humphreys, J.

This suit was instituted in the Eastern District of the. Circuit Court of Clay County hy appellee against appellant to recover damages in the sum of $714.80 for negligently permitting fire to escape from its railroad right-of-way, and from its engine in the operation of its train, destroying about ten acres of strawberries on land belonging to appellee adjoining said right-of-way.

The cause was submitted upon the pleadings, the testimony adduced by the respective parties, and the instructions of the court, which resulted in a judgment against appellant for $585, from which is this appeal.

The record reflects that, during the latter part of October or the first of November, 1923, nine acres of strawberry plants belonging to appellee, which adjoined the right-of-way near Piggott, were destroyed by fire starting near the .track of said right-of-way, and that, soon thereafter, another acre of plants was destroyed in the same way.- The testimony tended to show that the fire originated either from sparks thrown out from a passing engine or from some old ties that were burning on the right-of-way, or from a fire on the edge of the right-of-way built by a bunch of hoboes camping near the side of the track, who had been there for more than a week, making willow chairs for sale. The foreman of the section where the fire occurred and other railroad employees knew that these hoboes were camping near the track and had been building campfires for some time. The foreman saw two of the hoboes building a fire at the edge of the right-of-way on the morning of the day that the berry field was destroyed by fire. Several witnesses testified that it was a common thing for passing engines to set out fire at this point when the grass was dry, and that an engine, which was throwing out a blaze of sparks, passed just before the fire began to spread over the field. One of the witnesses testified that he had often put out fires near this point which had been set out by the passing engines. Appellee, his father, and Lee Knowles, W. 0, English and A. B. Cargill each testified that they were acquainted with land values in that community, and that the lands adapted to strawberry culture were worth $100 an acre, and, when set out in bearing strawberries, were worth $200 an acre. A number of the witnesses testified relative to the productive value of strawberries which had been set out upon the lands in that vicinity for one, two and three years. The strawberries which were destroyed by the fire in question had been planted for two years.

The first contention made by appellant for a reversal of the judgment is that the trial court erred in permitting E. H. Ballard to testify as follows:

‘ ‘ Q. Do you know what is the market value of naked land? A. One hundred dollars an acre. Q. If it is stocked with nursery stock or strawberries like on this, what would it be worth? A. Nursery stock is different to strawberries. Q. Say strawberries? A. One hundred dollars for the strawberries. Q. Making a total of two hundred dollars an acre? A. While we have got as high as seven hundred dollars out of strawberries.”

And in permitting Lee Knowles to testify as follows:

“Q. What would it produce? A. It made around $100 per acre, to the best of my knowledge. Q. Did you know what they would produce, these adjoining lands? A. $100 per acre.”

And erred in permitting E. H. Ballard to testify as follows:

“Q. You may answer. A. I made $1,100 off of ten acres across over there, and it was a year older than the patch that burned.”

The argument is made that this testimony should have been excluded because appellee did not show that the lands about which they were testifying were similarly situated to the land in question, that the cultivation of the crops was not shown to be similar to the cultivation of the berries in question, and that the stand of the plants upon the various tracts of land was the same as upon the tract in question.

These witnesses resided in the community, and were testifying about the value of the lands in that vicinity. They testified that the lands in question had a good stand of berries, how long they had been planted, and the-amount in value they had produced each year, which necessarily showed that the berries had been cultivated. The testimony was competent, and properly admitted under the theory advanced by appellant relative to the proper measure of damages upon which the case was tried.

The next contention made by appellant for a reversal of the judgment is that the latter part of instruction number 4 was erroneous. The latter part of instruction number 4 assailed by appellant is as follows:

“If you find from the proof in the case that there is no general market value for that kind, of lands in the neighborhood and community, then it will be your duty t-o find from the proof in the case, as near as you can, what the value of the land was with the strawberries growing on it, and subtract from that the general market value of the land without the strawberries being considered, and your verdict would be the difference. In arriving at a conclusion as to what the value was with the berries on the land, you may take into consideration all of the facts and circumstances in proof.”

The first part of the instruction announced the rule that the measure of damages should be the difference between the market value of the land set to .bearing strawberries and the market value of the land without growing and bearing strawberries upon it. Evidence was introduced tending to show that land set to strawberries in that community had not been generally sold. The latter part of the instruction was given by the court as a measure for damages in case the jury should find that there was no general market value for lands set to strawberries in that community. Appellant’s contention that, unless there was a general .market value for such lands in the community, there-could be no liability for destroying-plants, is not sound. It is not necessary to decide in this case what the correct rule of damages was, because appellant contended below and procured a trial upon the theory that the correct measure of damages was the difference in value of the land with strawberries growing on it and the value without the berries on it. He cannot be heard, on appeal, to change his theory as to the correct rule for the measure of damages. We think the second clause in the instruction which appellant assailed conforms to the rule for the measure of damages upon which the case was tried at the instance and request of appellant.

The nest contention made by appellant for a reversal of the judgment is that instruction number 3, given by the court, in effect told the jury that, if the fire was set out by the hoboes, they should find for appellee. We do not think that appellant has correctly interpreted instruction number 3. It told the jury, in plain and unambiguous language, to find for the appellant unless the fire which destroyed the plants was set out by it or its employees in the operation of its engines, or that it spread from fires permitted' to be on the right-of-way of appellant. Appellant was just as responsible for damages caused by the spread of fire from negligently allowing old ties to burn upon its right-of-way, or from fires it negligently allowed hoboes to build at their camp, as by fire that was set out by sparks and cinders thrown into the dry grass from its passing engines. The instruction correctly declared the law applicable to the various phases of testimony introduced in the case.

Appellant’s last contention for a reversal of the judgment is that the court allowed O. T. Ward, counsel for appellee, to state in the presence of the jury that Elmer Harwood, one of the witnesses for appellant, had testified that two trains were run to Piggott the day of the fire, instead of one, before he was coached or cautioned. This witness had been asked leading questions by counsel for appellant relative to the number of trains which passed by the strawberry field on that day, for the purpose of refreshing his memory.

In Ms argument to the jury 0. T. Ward expressed the opinion, from the character of questions which had been propounded to this witness, that the manner of interrogation amounted to cautioning or coaching him. Mr. Ward did not state, as a matter of fact, that the witness had been cautioned or coached before he was placed upon the witness stand. As stated above, he simply expressed the opinion that the manner of interrogating the witness amounted to cautioning or coaching the witness.

No error appearing, the judgment is affirmed.


text:
    Smith v. State.
    Opinion delivered November 15, 1926.
    1. Criminal law — res gestae.- — In a prosecution for assault with intent to kill, testimony as to what was done with a gun taken from the person assaulted while the fight was. in progress held admissible as part of res gestae.

    2. Criminal law — improper question- — harmless error. — In a prosecution for assault with intent to kill, to question a witness as to whether he knew of any trouble between defendant and his wife, who was sister of the person assaulted, was not prejudicial to defendant, where the answer was in the negative.
    3. Witnesses — redirect examination — explanation of cross-examination. — Where part of a conversation - is brought out on cross-examination, the entire conversation may be elicited on redirect examination.
    4. Witnesses — impeachment of accused. — In a prosecution for assault with intent to kill defendant’s wife’s brother, defendant’s testimony, on cross-examination, that he had slapped his wife on one occasion, in answer to the question whether he had beaten her, held proper as bearing on his credibility.
    5. Criminal law — evidence—order of introduction. — It is within the trial court’s discretion to admit in rebuttal evidence which should have been introduced as direct evidence.
    6. Criminal law — burden of showing prejudice. — A showing as to what the answer of a witness would have been must be made before advantage can be taken of the court’s refusal to allow the question to be asked.

      7. Witnesses — impeachment.—Where a State’s witness was cross-examined as to collateral matters, defendant was bound by his answers, and could not contradict him by other witnesses.
    8. Criminal law — instructions—applicability.—In a prosecution for assault with intent to kill, evidence held to warrant instructions formulated .on the theory that there was evidence of malice and premeditation.
    9. Homicide — intent—kind op instrument used. — In a prosecution for assault with intent to kill, the jury may consider the nature of the weapon used and the manner of using it, together with all other circumstances, in determining whether the assault was committed with intent to kill.
    10. Homicide — instruction as to self-defense. — An instruction that, to justify an assault as in self-defense, the circumstances must be sufficient to- excite the fears of a reasonable person, and the defendant must act upon that influence, held neither abstract nor argumentative.
    11. Criminal law — abstract instruction. — In a prosecution for assault with intent to kill, omission from an instruction of defendant’s right to defend his father was proper where there was no evidence upon which to base such an instruction.
    12. Homicide — instruction as to threats. — An instruction telling the jury that' threats alone would not justify an assault with intent to kill held proper.
    13. Criminal law — instructions—harmless error. — The giving of two instructions correctly embodying substantially the same principle of law held not prejudicial, though only one should have been given.
    14. Criminal law — instructions—construction as a whole. — Failure to incorporate in a general instruction on self-defense defendant’s right to act upon the danger as it appeared to him in good faith was not prejudicial where another instruction covered that point, and the jury were instructed to consider the instructions as a whole.
    15. Criminal law — instructions as to threats. — Instructions as to the jury’s right to determine, from threats of either party, as to which was the aggressor in a fight, held not conflicting, though one was broader than the other ’in allowing the jury to consider threats made by either, to ascertain the condition of defendant’s mind at the time of the difficulty.
    16. Homicide — instructions—harmless error. — One convicted of assault with intent to kill was not prejudiced by an instruction upon aggravated assault.
    17. Criminal law- — -instruction as to defendant’s right to testify. • — -Though it is within the discretion of the trial court to give an instruction relative to defendant’s right to testify in his own behalf, it is better practice not to refer to this right or to the rules governing his credibility, but to allow him to take his place along with other witnesses under a general charge.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;.
    affirmed.

      Seth G. Reynolds, for appellant.

      II. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant, Walker Smith, was indicted, tried and'convicted in the circuit court of Little River County for an assault with intent to kill Pete Beavers, on the 6th day of July, 1926, and was adjudged to serve a term of one yéar in the State Pentientiary as a punishment therefor, from which is this appeal.

According to the testimony introduced by the State, Pete Beavers came to the home of appellant, on the Carr farm, near DeQueen, in order to protect his sister, appellant’s wife, who had been having trouble with her husband. Beavers came to visit them at the request of his sister. .He brought his pistol along, and carried it on the inside of his shirt almost continuously for the week he visited them. A revival was in progress near the farm, which was generally attended by the people in the community. It was conducted under a small arbor near the roadside. During Beavers’ visit to the home of appellant, he inquired from some of the neighbors concerning the trouble existing between appellant and his wife. During the week there was no friction between appellant and Beavers until the evening on which the affray occurred. His sister had told Beavers of a discussion between herself and appellant, after he had beaten up their boy, at which time the boy had asked his mother to write to Beavers to come, whereupon appellant remarked, Just let him darken the door.” On Tuesday, before the difficulty on Wednesday night, Pete Beavers had gone with Judge Smith and his wife to Foreman for the purpose of sending a message-, but he could not send it from Foreman, so went on to Winthrop, where he sent it. After leaving Foremamhe got to Winthrop before the Smiths did, and returned alone, after night, to the Carr farm. During the trip to Foreman he informed the Smiths he was going to Oklahoma, but did not tell them he was going that day. Services were held at the arbor on Wednesday night, the 6th of July, which were attended by appellant and his immediate relatives and Pete Beavers, his sister, and a number of people in the community. During the services appellant, his father, R. E. Smith, and his brother, Judge Smith, stood outside of the arbor, most of the time, talking. R. E. Smith had what one of the witnesses described as a club, about four feet long and an inch and a-half thick, which he had cut in the woods, and had been using for about a week as a walking-stick. Pete Beavers had his pistol in his bosom, and his explanation for carrying same to church was that he was going to Oklahoma, and had not removed it from his person before going to church. He could make no explanation of why he had carried the pistol constantly after coming to the Carr farm. The preacher and his sister, Mrs. Babcock, who was assisting in the meeting, and her daughter, had accepted an invitation from appellant’s wife to go home with her and spend the night. She remarked that her brother, Mr. Beavers, would walk home with them. Others had gathered around the preacher and were extending invitations to him to spend the night with them, when R. E. Smith came up and told appellant’s wife that her boy had thrown sticks or rocks at his daughter Lee, when they started home. Her boy denied doing so, and, while the dispute was at its height, Pete Beavers stepped forward and asked his sister what the trouble was about. Before she could explain, appellant advanced hurriedly upon Pete Beavers with an open knife in his right hand, clutched him by the throat with his left, and cut him under the arm. At that time R. E. Smith, who was standing near, struck Beavers in the back with his club or walking-stick. Appellant and Beavers swung apart, and immediately came together again, falling to the ground. Appellant had the knife in his right hand and Beavers had appellant’s right hand in both of his. When they were falling, some one said, “Get that gun off of him.” J. B. Tucker tried to pull appellant off of Beavers, but R. E. Smith interfered and demanded that he cease trying to separate them. Some one said to “get that gun,” whereupon Judge Smith jerked Beavers’ shirt open and got the gun, which was tied up in a handkerchief. Judge Smith took hold of the butt and swung the pistol into a shooting position and said, “Stand back.” He then handed the gun to J. 0. Tucker, but immediately requested Tucker to return it to him, which he did. The pistol was afterward turned over to an officer of the law, but just who got the knife and what was done with it was not developed. After the gun had been taken, Beavers remarked that “they had got him,” whereupon appellant released him, when it was discovered that he had inflicted a deep and dangerous knife wound clear across Beavers’ stomach.

The testimony introduced by appellant tended to show that the difficulty was instigated by Pete Beavers, he being the aggressor throughout, and that appellant was the only Smith who participated in the affray, and that the knife wounds were inflicted in necessary self-defense. A number of incidents leading up to and occurring during the affray have not been mentioned in stating the substance of the testimony adduced by appellant, and will not be referred to unless it becomes necessary to-do so in the discussion of alleged errors committed by the trial court in the admission and exclusion of certain pieces of testimony.

The motion filed by appellant for a new trial contains forty-seven alleged errors, but all of them are not urged and argued as grounds for a reversal of the judgment. Those which are relied upon have been argued by learned counsel for appellant under the following heads:

First. That the court erred in admitting certain testimony.

Second. That the court erred in excluding certain testimony.

Third. That the court erred in giving certain instructions.

Fourth. That the court erred in refusing to give certain instructions.

I. The court allowed Mr. Tucker, over the objection of appellant, to state what Judge Smith did with the gun when he took it away from Pete Beavers. The statement objected to was to the effect that Judge Smith handed him the gam, then requested that he hand it back, which request was complied with. This occurred while the fight was in progress and immediately after Walker Smith let Beavers up. The testimony was admissible as a part of the res gestae.

J. D. Willis was allowed, over the objection of appellant, to answer whether he knew of any trouble between appellant and his wife, who was a sister of Pete Beavers. He answered in the negative, so appellant could not have been prejudiced on account of the question.

The prosecuting attorney was permitted, over the objection of appellant, to ask Pete Beavers, on redirect examination, to state the whole conversation between himself and Mr. Willis relative to the trouble between appellant and his wife. The question was a pertinent and a proper one, because counsel for appellant, on cross-examination of Beavers, had brought out a part of the conversation.

The prosecuting attorney was allowed to ask appellant, on cross-examination, over his objection, whether he had beaten his wife. He answered that he had slapped her on one occasion. The question was properly approved by the trial court as bearing upon the credibility of the witness. Martin v. State, 161 Ark. 177, 255 S. W. 1094.

The prosecuting attorney was allowed to introduce the testimony of several witnesses in rebuttal, over the’ objection of appellant, to the effect that they did not hear either Mrs. Walker Smith or Pete Beavers call R. E. Smith a liar when he said Mrs. SmitlPs boy had thrown rocks or sticks at his daughter, and other witnesses to the effect that they did not see Pete Beavers run his hand in his shirt front as if to get the pistol, just before the fight began. The objection made to the testimony was that it should have been introduced as direct and not as rebuttal evidence. The objection was not tenable, for it was within the discretion of the trial court to admit it out of time. Jordan v. State, 165 Ark. 502, 265 S. W. 71.

II. The trial court refused to allow appellant to ask Pete Beavers, on cross-examination, whether he was a confederate of and peddled whiskey for John W. Owens, who was executed for killing a man by the name of Throckmorton. No showing was made by appellant that Beavers would have answered the question in the affirmative, had he been required to answer, and for this reason he -is not in a position to take advantage of the court’s refusal to allow and require an answer to the question. Dixon v. State, 162 Ark. 584, 258 S. W. 401.

Pete Beavers denied, on cross-examination by appellant, that he told Clydia Smith that he was going to Oklahoma and did not do it, and told Mr. Willis that he was supposed to be gone but was not; and that he was told by Judge Smith, on the way to Foreman, that he would get pinched for carrying a pistol if he did not watch out. The trial court refused to allow Clydia Smith, Mr. Willis and Judge Smith to contradict-Beavers on these points, on the ground that they were collateral matters, the answers to which, on cross-examination, bound appellant. The testimony of these witnesses was properly excluded under the rule of evidence thus announced. Crawford v. State, 132 Ark. 518, 201 S. W. 784; Lytle v. State, 163 Ark. 129, 259 S. W. 394.

III. Instructions numbers 1, 2, 3, 4, 5 and 6, given at the instance of the State, over the several objections and exceptions of appellant, related to the law of assault with intent to kill, explaining fully the necessary essentials or ingredients of the crime. These instructions were formulated and given upon the theory that the testimony introduced by tbe State tended to show malice or premeditation in the assault made by appellant upon Pete Beavers, with intent to kill him. Appellant contends that there is no testimony whatever in the record tending to show actual malice or premeditation upon his part to take the life of Pete Beavers, or facts and circumstances from which an inference of malice or premeditation might be drawn. We think otherwise. A short time before the difficulty, the Smiths were seen near the arbor in consultation. Immediately after the services closed, Walker Smith attacked Pete Beavers with an open knife and inflicted two wounds upon his body, one of which was a dangerously deep cut clear across the abdomen. One witness testified that, almost simultaneously with the assault, Walker Smith’s father struck Pete Beavers on the back with a club four feet long and an inch and a-half thick. Other witnesses testified that, when Walker Smith was on top of Pete Beavers, cutting him, Judge Smith took Beavers’ pistol out of his shirt bosom and swung it into a shooting position, saying to those crowding upon them to stand back. These facts warranted the jury in finding that appellant, his father and brother planned the attack, and, when coupled with the circumstance that a dangerous wound was inflicted with a knife clear across the abdomen of Beavers by Walker Smith, to find that the assault was committed with intent to kill and murder Beavers. The rule of law applicable is that “it is within the province of the jury to consider the nature of the weapon used, and the manner of using it, together with all the other circumstances in the case, in determining whether or not the assault was committed with intent to kill and murder a human being.” Chrisman v. State, 54 Ark. 283, 15 S. W. 889; 13 R. C. L., page 800. We think the evidence amply sufficient to warrant the court in giving’ instructions numbers 1 to 6 inclusive, ■which were requested by the State.

Instruction number 7, given by the court at the request of the State, is as follows;

/“The bare fear of those offenses to prevent which the assault is alleged to have been committed shall not be sufficient to justify an assault to kill. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the defendant really acted upon that influence, and not in a spirit of revenge.”

The instruction is not abstract and argumentative, as contended. Furthermore, it is a correct rule of law. Palmore v. State, 29 Ark. 248.

Instructions numbers 8 and 9, given at the request of the State, are assailed as defective because they eliminated the right of appellant to defend his father, if it appeared to him, as a reasonable man, that his father was about to be attacked by Beavers, but we are unable to find anywhere in the record that Beavers was about to attack appellant’s father. Had the instructions embodied the right of appellant to protect his father, they would have been abstract, and for that reason erroneous.

Our special attention is called to the objection made by appellant to instruction number 13, given by the court at the request of the State, to the effect that it told the jury that, if Beavers had threatened appellant, these threats would not have justified the cutting of Beavers. Appellant has misconstrued the purport of the instruction. It told the jury that such threats alone would not justify an assault.

Objection was made by appellant to instructions numbers 9 to 17, upon the ground that they did not embody the idea that appellant had a right to act upon a reasonable apprehension of clanger, provided he did not use greater force than appeared reasonably necessary to him to repulse the assault of Beavers. Our interpretation of both instructions is that they recognized the right of appellant to act upon appearances, if honestly believed by him without fault or negligence on his part. These instructions embody the very idea which appellant contends is not embraced in them. They are correct declarations of law applicable to appellant’s theory of the case, Black v. State, 84 Ark, 126, 104 S. W. 1104. They are, in substance, the same, and only one of them should have been given, but we are unable to see any prejudice resulting to appellant on account of giving both of them.

Objection was made by appellant to instruction number 18, given at the request of the State, upon the ground that it ignored his right to act upon good faith appearances to him of danger in resisting the assault made by Beavers. The instruction was a correct general declaration of law relative to the right of self-defense, not embodying, however, this particular phase of the case; but other instructions were given covering the right of appellant to act upon appearances of danger, if believed in good faith by him. The court instructed the jury that they should consider all of the instructions together as a whole. In view of this instruction, we are unable to see that prejudice resulted to appellant on account of a failure to incorporate in the general instruction on self-defense the right of- appellant to act upon good faith appearances.

Objection was made by appellant to instruction number 22, given at the request of the State, because of an alleged conflict between it and instruction number 14, given at his request. Both instructions related to the right of the jury to determine, from threats made by either party, as to which one was the probable aggressor. Appellant’s instruction number 14 is broader than the State’s instruction number 22, to the extent of allowing the jury to consider threats made by either for the purpose of ascertaining the condition of the appellant’s mind at the time of the difficulty. The mere fact that one was broader than the other does not make them con-, flicting.

Objection was made to instructions, numbers 2 and 3, given by the court, defining manslaughter and the resultant effect in case the jury should find that appellant had been guilty of manslaughter, had Pete Beavers died. The jury was told that, in such an event, appellant should be convicted of aggravated assault, instead of an assault with intent to kill. The court then defined an aggravated assault, which is a lesser offense than an' assault with intent to kill. Appellant was convicted, of the higher offense, therefore he ivas in no position to complain of an instruction on a lower offense, which was necessarily favorable to him. Jones v. State, 161 Ark. 242, 255 S. W. 876.

IV. The trial court, over the objection of appellant, refused to give instructions numbered A, 2, 3, 6, 7, 8, 9, 10, 12, 16, 18, and 19. We have carefully read each request and reached the conclusion that the court was right in refusing to give any one of them.

Number A requested an instructed verdict for appellant. Our interpretation of the testimony introduced by the State was to the effect that the evidence is sufficient to support a verdict and judgment for an assault with intent to kill.

Number 2 related to the question of the credibility of witnesses, and was fully covered by instruction number 5, given by the court.

Number 3 related to the right of appellant to testify in his own behalf. It is within the discretion of the trial court to give an instruction relative to the right of a defendant to testify, in his own behalf, but it is the better practice not to refer to this right or rules governing his credibility and the weight to be attached to his evidence, but to allow him to take his place along with all other witnesses under the general charge relative to the credibility and weight to be attached to their testimony. Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Whitener v. State, 120 Ark. 30, 178 S. W. 394; Denton v. State, 131 Ark. 1, 198 S. W. 111; Davis v. State, 150 Ark. 501, 234 S. W. 482.

Number 6, upon the question of reasonable doubt, was covered by number 1 given by the court.

Number 7 was abstract because there was no evidence tending to show that Pete Beavers was turbulent, quarrelsome or dangerous.

Number 8, upon the burden of proof, was covered by number 5, given at the request of appellant himself,

Numbers 10, 12 and 16 were abstract, as there was no testimony introduced tending to show that Beavers was making an attack upon appellant’s father when he assaulted him. _

Numbers 11,13 and 15 were properly modified by the trial court so as to eliminate the right of appellant to defend his father. The testimony did not warrant the court in giving the instructions in the form asked.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Green v. Green.
    Opinion delivered November 23, 1926.
    Appeal and error — insufficiency of abstract. — Where no abstract of proceedings before the lower court is brought up on appeal, a decree refusing recovery on a supersedeas bond was affirmed, since the Supreme Court was not advised as to the grounds on which the ruling was made.
    Appeal from Garland Chancery Court; W. R. Duffie, Chancellor;
    affirmed.

      R. G. Davies, for appellant.

      Murphy S Wood, for appellee.
   McCulloch, C. J.

This is an appeal from a decree of the chancery court of Garland County, refusing to summarily award recovery from appellee and his sureties on a supersedeas bond on appeal to the Supreme Court.

Appellant and appellee were formerly husband and wife, and on August 30, 1923, in a suit for divorce in which appellant was the plaintiff, the court rendered a decree in favor of appellant for the dissolution of the bonds of marriage, and for recovery of continuing alimony in the sum of $25 per month and for accrued alimony in the total sum of $1,325. It is contended by appellant that appellee appealed from that decree, giving the supersedeas bond involved in the present proceeding, and that the appeal was subsequently dismissed by this court. This is disputed by appellee. The court ordered a sale of the property of appellee Green, and it was sold by the commissioner for the sum of $501. The court then made an order on the commissioner, after confirming the sale, to pay to appellant all the proceeds of the sale except the sum of $158.05, which sum the court ordered the commissioner to hold for further orders. Subsequently, on January 21, 1924, the court made another order directing the commissioner to pay over the balance of the proceeds of the sale to appellant, and that, “upon receipt of the same, the said cross-complainant discharge all judgments and allowances ag’ainst the plaintiff, Frank J. Green, in her favor on account of alimony or otherwise, and for all future allowances, the payment of said sum being a full and complete settlement between them.” Appellant prosecuted an appeal to this court, and the judgment was reversed on account of the error of the court below in discharging appellee Green from the balance of the judgment for alimony. Appellant then, after the mandate was filed, applied to the court for summary judgment against appellee and his sureties, which application the court denied.

The contention of appellant is, as before stated, that the supersedeas bond in question was executed on appellee’s appeal from the first decree. This contention is set forth in the abstract and brief filed on behalf of appellant, but there is no abstract of the proceedings before the court, and we are not advised as to the grounds upon which the court’s ruling was made. We are unable 'therefore to determine from appellant’s abstract whether or not the ruling of the court was correct.

For this reason the judgment must be affirmed, and it is so ordered.


text:
    Ætna Insurance Company of Hartford, Connecticut, v. Solomon.
    Opinion delivered November 23, 1926.
    1. Trial — repetition of instructions. — Refusal of requested instructions was not erroneous where appellant’s theory of the case was fully submitted by instructions given.
    2. Insurance — storm policy — modification of instruction.— Where, in an action on a storm policy, defendant asked an instruction that “an ordinary wind, no- matter how long continued or how strong, is not covered by the policy unless it assumed the attitude of a storm,” it was not error to strike out the words italicized, as the instruction as asked would have been contradictory.
    3. Insurance — allowance of interest. — In an action on insurance policies, interest was properly allowed on the amount found to be due, though it was ascertained from conflicting testimony.
    Appeal from Phillips Circuit'Court; E. D. Robertson, Judge;
    affirmed.

      Cockrill £ Armistead and Bevens £ Mundt, for appellant.

      Moore, Walker £ Moore, for appellee.
   McCulloch, C. J.

This is an action instituted by appellees to recover on a policy of insurance issued by appellant indemnifying appellees against damage to certain buildings “by tornadoes, cyclones or windstorms.” There are three separate policies involved in the litigation, and the aggregate sum of $4,188 is sought to be recovered on all of the policies. There was a trial of the issues before a jury, and a. verdict in favor of appellees for $2,891, with interest from the date of maturity of the proofs of loss.

Each of the policies contained the following exception from liability:

“This company shall not be liable for any loss or damage occasioned directly or indirectly by or throúg’h any tidal wave,’ high water, overflow or cloudburst; nor for consequential loss or damage of any kind. This company shall not be liable fox loss or damage caused by water or rain, whether driven by wind or not.”

The defense of appellant was based upon the contention that the damage to the property in question was within the exception from liability.

Appellees were the owners of a large plantation in Phillips County, on which the insured houses — 47 in number — were situated and used for occupancy by tenants on the plantation. According! to the. undisputed testimony, a severe windstorm occurred on April 10, 1922. There is a conflict in the testimony as to the extent of the storm, but the testimony introduced by appellees was to the effect that the houses were blown over, and that the wind was the sole cause of the damag’e. There was at that time an overflow of water from the Mississippi River, and the land was inundated to a considerable depth, in some places nearly up to the floors of the houses, and in other places above the floors of the houses. The testimony introduced by appellant was to the effect that the damage was caused by the overflow — that the wind was not sufficient to overturn the houses except for the depth of the water surrounding them. This issue was submitted to the jury upon conflicting testimony, and the evidence is legally sufficient to support the verdict.

There are numerous assignments of error in regard to the rulings of the court in refusing instructions requested by appellant, but the court gave six instructions at appellant’s request (one of them slightly modified), which fully submitted appellant’s theory of the case, and, we think, were sufficient without giving the refused instructions. The following instructions were given at appellant’s request:

“No. 2. The jury is instructed that, if you find from the testimony that the windstorm was not sufficiently severe in and of -itself to have caused the injuries to the buildings, your verdict will be for the defendant.”
■ “No. 4. The .jury is instructed that the plaintiffs are insured under the policies introduced in evidence, against loss or damage due directly to tornado, cyclone or windstorms. But the contract of insurance provides, find by its terms both parties are bound, that the defendant shall not be liable for loss or damage occasioned directly or indirectly by high water or overflow. If therefore you find from the evidence that high water or overflow, even indirectly, was the cause of loss or damage, the plaintiffs cannot recover in this lawsuit.”
“No. 9. You are instructed that the damages in this case are limited to such loss or damage to the buildings as was occasioned directly by the wind and would have been occasioned in the absence of and independent of the existence, presence or action of the water, overflow, or water driven by the wind. ”
“No. 12. You are instructed that, before you can find for the plaintiff, you must find from a preponderance of the testimony that there was a loss or damage occasioned by a tornado, windstorm or cyclone. Unless therefore you find that the damage done to the buildings included in the policies sued on was occasioned by a tornado, windstorm or cyclone, as hereinafter defined, you will find for the defendant. To constitute a windstorm within the meaning of the policies, there must not only have been a wind but also a storm. Therefore to constitute a windstorm there must have been a commotion of the elements involving violent force, vehement-action, or turbulent commotion and disturbance of the elements. ’
“No. 13. You are instructed that, if you find from the evidence that, except for the existence of the flood at the time of the windstorm, there would have been no damage-to any particular building claimed to have been damaged, you will find for the defendant as to that claim.”

These instructions were quite as favorable to appellant as could have been given.'

The following instruction No. 11 was given, with the italicized words stricken out:

“You are instructed that an ordinary wind, no matter how long continued, or hoto strong, is not covered by the policy, unless it assumed the attitude of a storm.”

The modification did not, we think, impair the force of the instruction, and was not prejudicial. In fact, if the words had not been stricken out, the instruction would have been contradictory in telling the jury that an ordinary wind, no matter how strong, did not bring the case within the terms of the policy “ unless it assumed the attitude of a storm.”

One of the refused instructions related to the burden of proof, but we think that instruction No. 12, quoted above, was sufficient to cover that subject. That instruction necessarily placed the burden of proof upon appellees, and it was unnecessary to repeat the instruction in another form.

One of the refused instructions was peremptory, and, as we have already seen that the evidence was sufficient to sustain the verdict in favor of appellees, this instruction was properly refused.

Appellees introduced the testimony of an architect who examined the buildings after the storm, and he testified in detail as to the extent of the damage and the cost of restoration. Hach of the houses was dealt with in detail in the testimony, and the items of damage included labor and material for restoration. Among other things, the cost of new wooden blocks and porches and steps for the houses were included. It is contended by counsel that, according to the undisputed testimony, the loss of these portions of the houses was necessarily caused by the overflow and not by the force of the wind, and that the verdict was erroneous in including these items. The answer to this contention is that it does not affirmatively appear that these items were embraced in the verdict. The amount sued for was $4,188, and the recovery was for $2,891, leaving a difference of $1,297 between the amount claimed and the amount of the verdict. There was no objection made to the testimony concerning these items, nor was there any instruction asked excluding the consideration of them from" the jury. We cannot say that the jury allowed for these items, therefore it does not appear that the verdict was excessive. So far as concerns the porches and steps, the loss may have occurred from the wind and not from the water, lienee it was proper for the jury to consider those . particular items.

Finally, it is insisted that the court erred in its instruction to the jury allowing recovery for interest. The contention is that this is an unliquidated demand, and therefore does not hear interest. This is a suit on contract for the payment of money under certain conditions, and the claimants were entitled to interest on the amount found by the jury to be due, notwithstanding the fact that the amount was to be ascertained from conflicting testimony.

Judgment affirmed.


author: Wood, J.

text:
    Shamis v. Seaman.
    Opinion delivered November 23, 1926.
    1. Pleading — motion treated as demurrer. — -A motion to dismiss a complaint in replevin because the court lacked jurisdiction, the defendant holding the property as trustee in bankruptcy, held properly treated as a demurrer to the complaint.-
    2. Replevin — jurisdiction.-—The circuit court in replevin has no jurisdiction of property held by defendant as trustee in -bankruptcy, since it has already passed into the possession of the bankruptcy court.
    Appeal from Phillips Circuit Court; E. D. Robertson, Jiulge;
    affirmed!

      Sheffield S Coates, for appellant.

      Moore, Walker & Moore, for appellee.
   Wood, J.

This is an action begun by George Shamis, hereafter called appellant, against Fred Seaman, trustee in bankruptcy of G. I. Shamis, bankrupt, hereafter called the appellee. The appellant filed his complaint in the circuit court of Phillips County, Arkansas, on January 29, 1925, wherein he alleged that he was the owner and entitled to the possession of a Ford touring* car, described by number, of the value of $450. He alleged that the property was in the possession of the appellee and wrongfully detained by him under the false claim that the same was the property of one G. I. Shamis, who was lately adjudged a bankrupt, and that the appellee was the trustee of his estate in bankruptcy. Such was the effect of the complaint and the affidavit in due form for replevin of the car.

The appellee moved to dismiss the complaint, alleging in his motion that he was an officer of the United States Court for the.Eastern District of Arkansas, the appellee being duly elected, qualified and acting trustee in bankruptcy of the estate of G. I. Shamis, bankrupt, and as such had the car in controversy in his possession. Appellee therefore alleged that the circuit court of Phillips County had no jurisdiction of the action, and prayed that same be dismissed. No written answer was filed by the appellant to the motion to dismiss.

The cause was heard, without objection by appellant, upon the complaint and affidavit in replevin and on the motion to dismiss. The court sustained the motion to dismiss, and entered judgment in favor of the appellee dismissing the appellant’s complaint for want of jurisdiction, and directing that the appellant be required to turn over the property to the appellee as trustee in bankruptcy, and, if such restitution were not made, that the appellee have judgment on appellee’s delivery bond in the sum of $450, the alleged value of the car. From that .judgment is this appeal.

No motion for a new trial was filed, and there is no bill of exceptions in the record. Therefore it is apparent that the trial court treated appellee’s motion as a demurrer to the complaint. The court ruled correctly in so treating it. Since the appellant admits, for the sake of argument, that G. I. Shamis was duly adjudged a bankrupt, and that the appellee was duly elected trustee in bankruptcy of the estate of G. I. Shamis, and, as such, took into his possession the car in controversy, the only question is whether or not the circuit court had jurisdiction.

The admitted facts show that the property in controversy was in possession of the appellee as the trustee in bankruptcy. The property had already passed into the possession of the bankruptcy court when the appellant instituted this action. The circuit court therefore had no jurisdiction. The law applicable to the facts pleaded and admitted is correctly announced in syllabus' to Orinoco Iron Co. v. Metzel, 230 Fed. 40, as follows: “As to property within the custody of the bankruptcy court, its exclusive jurisdiction over the general administration of the bankrupt’s estate carries with it exclusive authority to determine, not only the claims of creditors, but also adverse claims, whether by way of ownership or paramount liens.” Numerous authorities to support the doctrine thus announced are cited at page 44 of the opinion. In Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426,68 Law. Ed. 425, at p. 434, the Supreme Court of the United States says: “Where the bankruptcy court had possession, it could, under the act of 1898, as originally enacted, and can now, determine in a summary proceeding controversies involving substantial adverse claims of title under subdivision (e) of § 67, under subdivision (b) of § 60, and under subdivision (e) of § 70. But in no case where it lacked possession could the bankruptcy court, under the law as originally enácted, nor can it now (without consent), adjudicate in summary proceeding the validity of a substantial adverse claim. In the absence of possession, there was, under the bankruptcy act of 1898, as originally passed, no jurisdiction, without consent, to adjudicate the controversy, even by a plenary suit. ’ ’ See cases cited in notes 17, 18 and 19.

If this were an action by the trustee in bankruptcy' to determine the title and right to possession of George Shamis, the third party, to the property in controversy, the case would be different, and the authorities cited in brief of learned counsel for the appellant would be applicable. But such is not the case. The judgment of the Phillips Circuit Court is therefore correct, and it is affirmed.