author: Humphreys, J. McCulloch, C. J.

text:
    Johnson v. Johnson.
    Opinion delivered June 30, 1924.
    1. Divorce — evidence.—A finding that defendant, was not guilty o;’ adultery held supported by the weight of evidence.
    2. Divorce — amount op alimony. — The amount to be allowed as alimony is within the sound discretion of the trial court, and all circumstances should be considered in fixing it, such as the husband’s ability to pay, the station in life of the parties, and the conduct of the wife bearing upon the cause of separation.
    3. Divorce — amount op alimony. — Where a wife’s persistent association with immoral characters was largely responsible for the separation of the parties, an allowance to her as alimony of $250 per month will be reduced to $150 per month.
    Appeal from Garland Chancery Court; J. P. Render - son, Chancellor;
    modified.

      Martin, Wootton & Martin, for appellant.
    Adultery need not be established by direct evidence, the law merely requires proof by circumstantial or inferential evidence. 143 Ark. '277; 101 Ark. 522; Schouler 'on Marriage and Divorce, p. 1794; 19 Corpus Juris, p. 129. The difficulty of proving adultery is well recognized in the law of divorce. Abbott’s Trial Evidence, pp. 2033-3042; Encyclopedia of Evidence, vol. 1, p. 628; 2 Bishop •on Marriage and Divorce, § 1353. In proving adultery on the part of the wife it is only necessary to prove’ a lascivious disposition toward her paramour and a favorable opportunity for its exercise. 19 Corpus Juris 129; 143 Ark. 277; Schouler on Marriage and Divorce, p. 1794. Wilful and continued association with a man of known immoral character in reference to his relations with women is in itself evidence of adultery and sufficient ground for divorce. Abbott’s Trial Evidence, pp. 2033, 2044; 19 Corpus Juris 129.

      Murphy, McRcmey & Runaway and Murphy '& Wood, for appellee.
   Humphreys, J.

On the 11th day of April, 1922, appellant instituted suit against his wife, the appellee, in the chancery court of Garland County for an absolute divorce upon the ground of indignities, and1, on the 5th day of May following, filed an amendment to his bill, charging her with having committed adultery with one Elmer Walters on the night of March 28, 1922, at the Marion Hotel in Little Rock, and at various other times and places, the particulars of which were unknown to him.

Appellees filed an answer specifically denying the material allegations in the bill and amendment thereto, and1 a cross-bill for alimony and attorney’s fees.

On motion the court allowed appellee $200 per month alimony pendente lite, and a preliminary attorney’s fee of $500. These allowances were paid by appellant.

The cause was submitted to the court upon the pleadings and testimony responsive to the issues of adultery, permanent alimony and attorney’s fees, which resulted in a decree dismissing appellant’s bill for the want of equity and an additional allowance of $1,500 for her solicitors, and permanent alimony in the sum of $250 per month, from which is this appeal. Appellee has prosecuted a cross-appeal from the allowances, seeking to have them increased.

The testimony introduced by appellant tended to support the specific charge of adultery, and that introduced by appellee tended to show that she was innocent of the charge. The record of the testimony is voluminous, and it would extend this opinion to great length to set it out in detail, so we shall only attempt to set out in a general way the history of the case leading up to the alleged act of adultery, and then briefly summarize the testimony responsive to that issue. The specific charge of adultery, is entirely dependent upon the identity of the woman who was discovered and1 arrested with Elmer Walters in the Marion Hotel, room 379, in Little Rock, about 11 o’clock on the night of March 28, 1922. The burden was upon appellant to show that the woman in question was his wife. Appellant, having suspected the existence of an intimacy between Elmer Walters and his wife, had employed a detective by the name of Roy Stegall to watch her. On the 27th day of March appellee drove over to Little Rock in the afternoon, in company wfith Mrs. Jeff Freeman and Mrs. Freeman’s brother, Paul King. They arrived in Little Rock between five and six o’clock p. m. Before leaving Hot Springs appellee had got a clerk in the Como Hotel, partly owned by her husband, to telephone to the Marion Hotel to reserve a room for her and another lady. She and Mrs. Edith Brown, who had come to Little Rock earlier in the day, had arranged to occupy the same room at the hotel. When appellee arrived in Little Rock she stopped at the Marion Hotel for Mrs. Freeman and her brother to get out, and then went over to see the Pollocks on Scott Street. After visiting them she returned to the hotel, and registered in the name of Mrs. Ed Johnson, Hot Springs, and was assigned to room 3791 on the third floor. "When she registered the clerk remarked that another lady was to occupy the room with her, whereupon she asked whether she should register the other lady, and wag told that it was unnecessary. She then met Mrs. Edith Brown on the mezzanine floor of the hotel, and they went to their room. Mrs. Brown informed her that Miss McFadden was at the Merchants’ Hotel, and wanted appellee to spend the night with her. She left her grip in the room, and took her handbag, which contained her toilet articles, nightgown and other necessities, and went to the Merchants Hotel to spend the night with her lady friend. Later in the evening she called up another friend, Mrs. W. H. Park, who resided at 1900 Johnson Street, and invited her to go to the picture show. ■ Mrs. Park came down in her car and,' after the show, invited appellee and Miss McFadden to spend the night with her. They accepted the invitation. Early the next morning, the 28th, Mrs. Park took Miss McFadden and appellee to the Rock Island depot, and, while at the depot, appellee telephoned Mrs. Freeman to take breakfast with her. Miss McFadden left on 'the train, and Mrs. Park then took appellee down town, where they parted, with the understanding that they would meet that evening at the Famous Cafe for dinner. Appellee then went to her room, took a bath, and, while resting on the bed, went to sleep. She was aroused by a telephone message from Mrs. Freeman, who was waiting to go to breakfast with her. She left Mrs. Brown in the room, who said she never ate breakfast until 10 or 11 o’clock. After breakfasting with Mrs. Freeman, appellee entered upon the performance of her duties as a delegate to the American Legion Auxiliary Convention, which was in session in Little Bock. She went to her room at the Marion about noon, where she again met Mrs. Brown. In the afternoon she attended the convention, and, in the performance of her duties, went on an inspection tour of the hospital at Fort Logan H. Boots. Upon her return she went to her room, where she found Mrs. Brown. After remaining there a short time she went to the cafe on Main Street to have dinner with Mrs. Park. According to the testimony of appellee and Mrs. Park, they drove around awhile after dinner, then went to the Merchants’ Hotel, where appellee paid $4 for the room which Miss McFadden had engaged, and then to the home of Mrs. Park, where appellee spent the night on March 28. Mr. Park was away from home on the night of March 27, but returned on the 28th. He testified that appellee spent the night of the 28th in their home. Mr. and Mrs. Park fixed the date by the meeting of the convention of the American Legion Auxiliary. They knew of this meeting, and that appellee was in attendance upon it as a delegate.

Boy Stegall testified that he found out that room 379 in the Marion Hotel had been assigned to appellee, and that, early in the evening of the 28th, he had seen Elmer Walters enter an elevator in the basement of the Marion Hotel, and suspected that he was going to that room; that, upon inquiry, he ascertained that he had got off on the third floor; that he, Stegall, made arrangements to occupy a room across the hall from room 379, and stationed himself on a table so that he could look through the transom and observe any one entering or coming out of room 379; that the bell-boy came up twice, first with ice water and then with lemonade, and that the door was opened on both occasions by appellee, who was dressed in a kimono; that later he heard a man cough in room 379, whereupon he notified Tom Moore, assistant manager of the hotel, that a man was in the room with appellee; that Moore, in company with E. A. Young, the hotel detective, and a man by the name of Evans, the hotel engineer, entered the room, and found Elmer Walters in the bathroom, in his night clothes; that appellee and Elmer Walters were arrested and turned over to T. L. Hooter, a policeman, who had accompanied the hotel proprietor and the detective to the third floor, and who waited for them in the hall until they came out of the room.

After Elmer Walters and the woman dressed they were taken by the police officer to the city hall, the woman into the chief’s office and the man into the turnkey’s office. The woman was interrogated by J. L. Bennett, the night chief, and a record was made, describing them. She gave her name as Vera Johnson, her residence as Hot Springs, and the following description of herself to the chief: weight, 140 pounds; height, 5 feet 4 inches; eyes, gray; hair, brown. This was a correct description of Mrs. Edith Brown. Appellee has brown eyes, black hair, is about 5 feet high, and weighs 118 pounds. Cases for immorality were docketed against the man and woman in fictitious names, and they were released upon cash bonds of $15 each, which were deposited by the woman. After being discharged, the woman went to the Capital Hotel and registered under the name of Mrs. L. Johnson, Hot Springs. Several days afterwards the name of Mrs. L. Johnson was erased, and that of Mrs. Edith Brown was substituted for it on the Capital • Hotel register by Elmer Walters.

Elmer Walters testified that the woman arrested with him in room 379 on the night of March 28,1922, was Mrs. Edith Brown. • -

- Mrs. Edith Brown testified that she was the woman arrested with Elmer Walters in the room on the occasion referred to, and that, after their arrest and discharge, she registered for the remainder of the night at the Capital Hotel in the name of Mrs. L. Johnson, because she understood that was the way Mrs. Johnson had registered at the Hotel Marion, and that the baggage would be sent over from the Marion to the Capital Hotel in that name; that, several days afterwards, she had Elmer Walters change the register and substitute her own name for fear she would implicate Mrs. Johnson.

Tom Moore and it. A. Young testified that appellee was not the woman who was arrested in the room with Elmer Walters by them and turned over to the police. They described the woman who was found in the room, and their description tallied with the description of Mrs. Edith Brown.

J. L. Bennett and T. L. Hooter testified that appellee was the woman who was brought by T. L. Hooter from the Marion Hotel to the police station-with Elmer Walters. They testified six or seven months after the episode, .and, when appellee and Mrs. Edith Brown were presented to them, they identified appellee as the woman who was arrested upon the charge of immorality, and who deposited cash bail for herself and Elmer Walters on the night of March 28, 1922.

When appellee first testified she denied having seen Elmer Walters while in Little Rock, but, after Mrs. Jeff Freeman testified that appellee introduced Elmer Walters to her while they were lunching together on the 29th of March, she was recalled, and testified that she had seen him at that time, .and that he went back to Hot Springs that afternoon in the car with Mrs. Freeman and herself.

There was some conflict between the testimony of appellee and Mrs. Freeman relative to statements made by appellee when registering at the Marion Hotel and with reference to visiting the Pollocks on Scott Street.

It was shown that appellee associated with Elmer Walters and Mrs. Edith Brown both before and after the separation between appellee and appellant. Elmer Walters had taught appellee how to swim, and had, on various occasions, danced and gone automobile riding with her. Appellee testified that her husband had encouraged and sanctioned her association with both these parties.

After the episode at the Marion had gained notoriety, appellee went to see Mrs. Freeman and Mrs. Maggie King, who had testified in reference to -appellee’s association with Elmer Walters, and, according to their testimony, made an effort to get them to suppress these facts. On cross-examination, however, Mrs. King admitted that their conversation pertained to the proposition that appellee regarded her as a good woman who would tell nothing -but the truth, and Mrs. Freeman admitted that she requested appellee not to draw her name into the affair if it could be avoided.

John Oreen, one of appellant’s attorneys, testified that he -sent for appellee -after the escapade at the Hotel Marion, and openly charged her with being in room 379 with Elmer Walters, which charge she denied, -claiming that she spent the night of the 28-th of March, 1922, at the Merchants’ Hotel with Ona McFad-den, and did not •intimate that she had spent the night with Mr. and Mrs. Park.

There was a conflict between the testimony'of Roy Stegall and Moore and Young. Moore and Young testified that, when they asked Stegall whether the man and woman were the parties he wanted, he said the man was, but that he did not see the woman, and would rely upon the register for her identification. Stegall denied making this statement to them.

Other discrepancies exist in the testimony, but I deem it unnecessary to refer to them. Suffice it to say, without further detail, that the charge of adultery was supported by the testimony of Roy Stegall, J. L. Bennett and T. L. Hooter, whose testimony was corroborated by circumstances testified to by other witnesses as above set out; and that appellee’s innocence was supported by the testimony of herself, Mrs. Edith Brown, Tom Moore, R. A. Young, Mr. and Mrs. Park, Elmer Walters, and the recorded description in the police record of the woman who appeared there, as well as other favorable circumstances which were developed in taking the testimony.

After a careful reading and analysis of the testimony, a majority of the court are of the opinion that the finding of the trial court, purging appellee of the charge of adultery, is supported by the weight of the evidence. Mr. Justice Hart is of the opinion that the charge of adultery was established by the preponderance of the testimony.

The next and last issue presented by the appeal and cross-appeal for determination by this court is allowances of attorney’s fees and permanent alimony. The record reflects that appellant is a very wealthy man. The estimated value of his estate is $250,000, and his annual income at about $25,000. Appellee, however, did not assist him in accumulating this fortune. He was a widower of sixty-eight years of age, and appellee a divorcee, thirty-one years of age, at the time of their marriage. They only lived together six years before the separation. This lawsuit has been a hotly contested long-drawn-out affair, involving much skill and time on the part of eminent counsel employed by the parties. Taking into consideration the nature of the charge made ■against appellee, the successful defense made in her behalf, and the ability of appellant to pay for legal services, we think the amount allowed by the chancellor to appellee for her attorneys is fair and just. We cannot affirm the allowance, however, made by the learned chancellor to appellee as permanent alimony. In affirming the finding of the trial court upon the issue of divorce, the majority did not intend to place the stamp of approval upon the conduct of appellee. While the evidence is insufficient to brand appellee as an adulteress, it did show that she had been and was associating with Mrs. Edith Brown and Elmer Walters, who were arrested and fined upon the charge of immorality. Appellee’s association with Elmer Walters was continued, over the protests of her husband, and with both of them after she ascertained that they had been arrested in her room at the Marion Hotel for immorality. We do not think such conduct on her part becoming or circumspect, and must take her persistent association with them into account in fixing the amount of alimony. Her association with Elmer Walters had a great deal to d'O with the separation. This court said in the case of Shirey v. Shirey, 87 Ark. 175 (quoting from syllabus 6):

“The amount to be allowed as alimony is within the sound discretion of the trial court; and all the circumstances of the particular case should be considered in fixing it, such as the husband’s ability to pay, the station in life of the parties, and the conduct of the wife bearing upon the cause of separation.” A good discussion by the Supreme Court of Alabama of the reasons for this rule will be found in the case of Jones v. Jones, 11 So. 11.

Applying the rule thus announced to the facts in this case, we think the allowance made by the trial court should be reduced to $150 per month, and so order.

The decree is therefore modified in this respect, and, as modified, is affirmed.

Chief Justice McCulloch dissents from the modification.

Mr. Justice Hart dissents from that part of opinion refusing to grant a divorce.

DISSENTING OPINION.

McCulloch, C. J.

If I thought that appellee had, before and after the episode at the hotel in Little Rock, habitually associated with men and women of bad character, I would-be in favor of granting appellant a divorce on the sharply disputed question whether the appellee or Mrs. Brown was the woman found in the room with Elmer Walters. In other words, if the association of appellee was so bad that she is not entitled to a proper allowance for her support, it has such an important bearing on the question of her relations with Waiters that it is of ■controlling force in determining the issue of adultery.

The evidence does not show that either Mrs. 'Brown or Walters was a person of bad. character before the incident at the hotel occurred nor since that time, except as their reputations may be affected by that occurrence. The proof shows beyond any dispute that all of appellee’s association, both with Walters and Mrs. Brown, before the incident, was with the knowledge and consent of appellant. When appellee danced with Walters, it was in the presence of her husband, and the testimony shows that he encouraged her to attend the dances. When she rode with Elmer Walters and went to the swimming pool, it was with the knowledge of her husband, and they were accompanied by another lady in Hot Springs whose reputation and character has not been brought in question.

Appellee frankly admitted in her testimony that since the occurrence at the hotel and the accusation of adultery made against her by her husband, and the conduct of Mrs. Brown in openly acknowledging that she was the woman in the room with Walters, she could not find it consistent with her feeling of gratitude to Mrs. Brown to cut her acquaintance and to refuse entirely to associate with her. Appellee gives, I think, a very reasonable explanation of her conduct, and one that is consistent with the natural impulses of most any person situated as appellee was with an ugly accusation against her. She should not be blamed for indulging friendliness toward one who, as did Mrs. Brown, acknowledged herself to be the sinner.

The Shirey case, cited by the majority in their opinion, has no application to the present case, for the facts are different. In that case, the wife sued the husband for divorce, but was denied a divorce on the ground that she had condoned her husband’s wrongdoing. The court allowed the wife support, but, in fixing the amount, took into consideration her own improper conduct. In the present case no such state of facts exists. Appellee has not asked for a divorce. On the contrary, she has, according to the undisputed evidence, sought in every way to regain her. husband’s affections and confidence, and, as before stated, there is nothing in the record rightly affecting her character. Her husband is shown to be a man of wealth and large income. Certainly the allowance made by the chancellor is not out of keeping with the ability of appellant to pay. I dissent therefore from that part of the judgment of this court which reduces the allowance to appellee.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Cain v. Lane.
    Opinion delivered July 7, 1924.
    1. Quieting title — evidence.—In a suit to remove cloud on title to land created by execution sale under judgment against plaintiff’s father, evidence held to support finding that plaintiff, and not her father, owned the land.
    2. Execution — title of purchaser. — Where a judgment debtor did not own land sold under execution, but had in good faith conveyed it to his daughter, to whom it already belonged, purchasers of the land at execution sale took subject to the daughter’s rights, though the record title was in the judgment debtor at the time when judgment was recovered against him.
    3 . Fraudulent conveyances — right' of creditors. — Though a judgment debtor paid for land and had it conveyed to his daughter to put it beyond the reach of his creditors, judgment creditors had no remedy unless he was insolvent.
    Appeal from Faulkner Chancery Court'; ‘W. E. Atkinson, Chancellor;
    affirmed.
    ' G. A. Holland, for appellant.

      P. H. Prince, for appellee.
   Humphreys, J.

On the 8th day of December, 1922, appellee instituted this suit in the chancery court of Faulkner County against appellants to remove the cloud cast upon her title to the S% of the NE% section 5, township 7 north, range 13 west,' in said county, by a levy and sale under an execution issued on a judgment obtained in the circuit court of said county by the Bank of Conway against her father, J. P. Lane, and others. The judgment referred to was procured on April 3, 1922. At the instance of the bank an execution was issued thereon and levied upon the real estate aforesaid as the property of J. P. Lane, one of the judgment debtors, and advertised for sale on December 15, 1922. On December 11, 1922, C. B. Cain, Eula Hovis, and "Winnie Waddell, also judgment debtors, purchased the judgment from the bank for $1,650, and purchased the land in controversy: for $25 at the execution sale on December 15, 1922, and' received a certificate of purchase’ therefor. On December 19,1922, they filed an intervention in this suit, claiming title to said real estate under and by virtue of their purchase thereof at said execution sale, and the bank filed a disclaimer, alleging that it had sold and assigned the judgment to the interveners. The regularity of the proceedings under the execution sale was not challenged, so the only issue presented by the pleadings and testimony introduced by the parties was whether the real estate in controversy was owned by J. P. Lane, a judgment debtor, or appellee, when the bank procured its judgment against J. P. Lane and others on April 3, 1922. This issue of fact was determined adversely to appellants, and they have duly prosecuted an appeal to this court. According to the record, only two witnesses testified in the case, J. P. Lane, the father of appellee, and G-. S. McHenry.

J. P. Lane testified, in substance, that his daughter, the appellee herein, purchased the 80-acre tract of land in controversy from the Missouri Pacific Railroad Company for $600 several years before she obtained a deed thereto on March 5, 1920; that she paid $200 of the purchase money out of her earnings, and that she mortgaged the land and he mortgaged some of his to Mir. Hartón to get the balance of the purchase money; that she after-wards worked and earned the money to pay off the mortgage ; that she worked out some, but worked for him and her mother most of the time; that his daughter was twenty-nine years old at the time he was testifying; that he made the payments for his daughter, but that she helped to furnish the money; that, in the spring of 1921, he arranged to borrow some money from the Conservative Loan Company upon the real estate of himself and daughter, and procured G. ,S. McHenry, an abstracter, to prepare an abstract of title to the lands; that the ■abstracter suggested it would be cheaper to get up one abstract than two, and advised him to get a deed from his daughter to the 80-acre tract, and that he would embrace all the lands in one abstract; that, pursuant to this advice, she made him a deed to the 80-acre tract on March 14, 1921, reciting the nominal consideration of $1, and that he- placed the deed on record; that, later, he decided not to include his daughter’s land in the mortgage, and conveyed it back to her on January 12, 1922, and that she recorded same on November 11, 1922.

G. S. McHenry testified, in substance, that he made an abstract for J. P. Lane in the spring of 1921, who was putting up all his and his daughter’s land for a loan from the Conservative Loan Company; that he advised him to get a deed from his daughter, and, after obtaining the loan, to deed the land back to her, subject to the mortgage; that it was not included in the mortgage, and was deeded back to her, on his advice; that the deed from appellee to her father was a deed of convenience, and without consideration.

The record reflects that the note upon which the bank obtained its judgment was over four years old at the time of the rendition of the judgment.

The interveners were purchasers at their own execution sale, and took the land subject to the rights of appellee. Beidler v. Beidler, 71 Ark. 318. Notwithstanding the fact that the record title was in J. P. Lane, one of the execution debtors, when the judgment was rendered against him and his co-defendants, the bank and its assignees acquired no lien upon the land, if he conveyed it to appellee in good faith before the judgment was rendered against him. Appellee acquired title by delivery of the deed, so that it could not be reached by her father’s creditors unless it was conveyed to her to defraud them. According to the testimony of the witnesses, the land belonged to appellee all the time, and her father never acquired it. She conveyed it to her father as a matter of accommodation, so that he might borrow some money on it and thereafter reconvey it to her, subject to the mortgage. He did not embrace it in his mortgage, and conveyed it back to her before the judgment was obtained against him. It is argued, however, that J. P. Lane paid for the land in the first instancé, and that he had the railroad company convey it to his daughter for the purpose of putting it beyond the reach of his creditors. The record does not show that he was insolvent when the company sold and conveyed the land to appellee. If J. P. Lane was not insolvent at that time, he had a right to give the land to his daughter. Again, the testimony reflects that appellee earned the money with which to pay for the land. It is true that her father made the payments, but he testified that she earned and furnished the money with which to do so. It is not unreasonable that appellee could have accumulated this amount of money by working for her father and mother and for other people. She was twenty-nine years of age when her father testified, so was old enough to have earned money long 'before the deed was made to her by the railroad company.

We think the finding of the chancellor is supported by the weight of the evidence.

No error appearing, the decree is affirmed.


author: Smith, J..

text:
    Greer v. Craig.
    Opinion delivered July 7, 1924.
    1. Brokers — agent becoming purchaser — commission.—Where an agent, employed to sell land, became a purchaser without the vendor’s knowledge, he could not be allowed to retain a commission as agent.
    2. Brokers — right op principal to rescind. — Where an agent employed to sell land became a purchaser without disclosing that fact, the vendor was entitled to rescind if she elected' to do so within a reasonable time after discovering the facts.
    3. Brokers — liability for actual price. — Where an agent sold land for a greater price than disclosed, and secretly became the purchaser of an undivided interest, the vendor need not rescind, but could elect to affirm and require the broker to account for the actual price.
    4. Brokers — good faith. — Where a broker, employed to sell land, became a purchaser from the vendor without disclosing that fact, the vendor was under no duty to inquire whether the broker had acted in good faith, as she had a right to assume that fact.
    5. Costs — on appeal. — Where, though the decree of the lower court was modified, and the cause remanded, the appellate court awarded appellee the relief prayed for by her, which is not substantially less than that awarded in the lower court, the costs of the entire case will be assessed against appellant.
    Appeal from Prairie Chancery Court; John E. Martinecm, Chancellor;
    modified.

      Emmet Vaughcwt, and John E. Miller, for appellant.
    This action was barred by the three-year statute of limitations. If there was any breach of trust by M. H. Greer, the right of action arose immediately when that occurred, viz., on October 28, 1919, or, at any rate, not later than November .1, 1919, the date the deed was recorded, and this suit was not instituted until January 16,1923. C. & M. Dig., §4 6950, 6963; 132 Ark. 32; 145 Ark. 306-310; 17 R. C. L. 860, § 219; 108 Iowa 250; 75 A. S. R. 219; 158 U. S. 172, 15 S. Ct. 769, 39 Law. ed. 939; Ann. 'Cas. 1917A, 265; C. & M. Dig., § Í536; 46 Ark. 25-34.

      Sage é Sage, for appellee.
    ": The- three-year statute of limitations is not applicable in this case. M. H. Greer is attempting to obtain title to appellee’s land through fraud. The object of the suit was not to recover possession of the notes held by Greer, but to recover the purchase price of the land, which appellee understood had passed into the hands of innocent purchasers, the purchase money not having been paid over to Greer at the time the suit was filed. But, in any event, the cause of action is not barred by the three-year statute. Appellee received no information that Greer had perpetrated the fraud, until February 12,1920. 92 Ark. 618; 25 Ark. 462; 132 Ark. 32; 17 R. O. L. 796, § 163; Id. 856, § 217; Id. 853, § 214; 22 L. R. A. (N. S.) 215; 119 Iowa, 97, 93 N. W. 58; 71 Iowa 129; 72 Iowa 161; 2 Am. St. Rep. 232, 33 N. W. 448; 76 Iowa, '522, 14 Am. St. Rep. 235, 41 N. W. 207; 22 Minn. 287; 26 Wis. 614; 77 Wis. 414; 28 Kan. 292; 34 Tex. 544; 76 Kan. 169, 12 L. R. A. (N. S.) 493; 36 S. W. (Tenn.) 953. Appellant Greer is estopped to plead the statute of limitations by his own conduct in misleading the appellee and keeping her from coming to Arkansas at the time of the sale, and for some time thereafter, thereby preventing her from discovering his nefarious scheme. 134 Ark. 351.
    2. On appellee’s cross-appeal, attention is called to the court’s error in refusing to give judgment against M. H. Greer for the $300 which she paid him as a commission for making the sale. Loyalty is one of the first duties that an agent owes his principal, and “it is unquestionably good law as well as good morals that the unfaithful broker who seeks a profit from the transaction other than the commission for his brokerage, cannot recover from his principal any commission.” 74 Ark. 396, and1 cases cited; 142 Ark. 189; 150 Ark. 210. The fraudulent sale of an undivided one-third interest in appellee’s land by M. H. Greer to himself, was void, and he thereby forfeited his commission. 21 R C. L. 829; 82 Ark. 381; 126 Ark. 64; 143 Ark. 3; 248 S. W. 900; 247 S. W. 1052; 159 Ark. 178.
   Smith, J..

Appellee was the plaintiff below, and, for her-cause, of action, alleged that appellant, M. H. Greer, .-was employed by her. as her agent to sell certain lands which she owned, and that he sold 1,200 acres of her land for $12.50 per acre, and reported the sale to her as having been made at $10 per acre, and on this sale she paid him a commission of $300.

Appellee testified that, in July, 1919, appellant reported to her that he had an offer of $12.50 per acre for this land, bnt, acting upon appellant’s advice, she declined the offer.

In October, 1919, he reported that he had an offer of ' $10 per acre for the land, and appellant advised her to accept it. Appellee knew but little about the land or its value, and relied entirely and implicitly on the judgment and opinion of her agent.

Appellant informed appellee that he owned eighty acres of land of the same quality, which he proposed to sell at $10 per acre, and, at appellant’s request, she deeded her land to him in order that he might make one deed to the proposed purchaser, and might attend to the collection of the deferred payments.

Appellee also testified that appellant represented to her that three persons were interested in this purchase, and, in order to make a sale, it would be necessary for him to finance one of the proposed purchasers. ' She accordingly made a deed to him for the recited consideration of $12,000, of which $6,000 was paid in cash, and two notes for $2,500 each were given, payable, respectively, January 1, 1921, and January 1, 1922, and a third note was given for $1,000 payable January 1, 1923.

This deed was executed and delivered on October 17, 1919, and on October 28, 1919, appellant conveyed the same land to G. A. Greer, G. W. Sparks and M. A. McCall, for $12.50 per acre, of which he received $8,000 in cash and two notes, each for $'2,500, maturing, respectively, January 1, 1921, and January 1, 1922, and a note for $3,000 maturing January 1,1923. This deed included the eighty acres owned by appellant.

G. A. Greer was appellant’s brother and M. A. McCall was his sister, and on October 28, 1919, Mrs. McCall conveyed to appellant her undivided interest in the land. The result of these transactions was that appellant acquired an undivided third interest in the land at a cost to himself of only $1,700.

The testimony shows that Mrs. McCall was never a real party in interest, and that appellant used her name only for the purpose of acquiring this one-third interest.

Appellant testified that he explained the transaction to appellee, and that she was fully advised, and had made the deed to him for the consideration of $10 per acre after having been put in possession of all the facts.

The court below accepted appellee’s version of the transaction; and we concur in that finding; at least we are unable to say that it was clearly against the preponderance of the testimony.

The note due appellee maturing January 1, 1921, was paid, and the time for paying the note due January 1, 1922, was extended to January 1, 1923, on which date payment was tendered, but appellee by this time had discovered that the land had been sold at $12.50 per acre, and she demanded a settlement on that basis. When this was refused she brought this suit on January-16, 1923, in which she alleged the facts set out above, and prayed that appellant be declared a trustee for her benefit, and that she have judgment for the difference in the price, to be paid out of the balance due appellant from G. A. Greer and G. W. Sparks out of the unpaid purchase money, together with.the commission which she had paid appellant.

The court found that Mrs. McCall had no interest in the transaction and had merely permitted appellant to use her name; but the court also found that Sparks and G. A. Greer had bought their respective interests in good faith, and were entitled to the benefit of their purchase.

Upon this finding the court set aside the deed conveying to appellant a one-third interest and declared a lien in her favor on the remaining two-thirds interest for the proportionate part of the unpaid purchase money, at $12.50 per acre, due by Sparks and G. A. Greer, and M. H. Greer has appealed from this decree.

The testimony shows that appellee first became aware of the fact that appellant had made the sale at $12.50 per acre, instead of $10, on February 12, 1920, although it is insisted that she should be charged with notice of the transaction from the date the deed from appellant to his grantees was placed of record, and it is earnestly insisted that her cause of action is barred by the three years’ statute of limitation.

In reply to this insistence it is responded that this is a suit for money misappropriated by an agent, a part of which had not actually been collected when the suit was filed; and it is also responded that the three years’ statute of limitations does not apply.

Without deciding whether the cause of action would be barred by the three years’ statute of limitation, it may be said that, even though it applies to this suit, that time had not expired when this suit was commenced.

There was here a relation of trust and confidence. There was an admitted agency, and a commission as such was charged and paid. The agent had no right to make a profit at his principal’s expense. Good faith required him to sell the land for her at the best price obtainable, and this he did not do. He cannot therefore be allowed to retain the profit which he made out of the transaction; nor can he be allowed to retain the commission. As he became, in effect, a purchaser from his principal without disclosing that fact, he must assume that attitude in accounting to her, and must restore the commission which he improperly charged. Many authorities are cited in the brief of appellee supporting this statement of the law; indeed, it is elementary. Appellee would, in fact, have been entitled to a rescission of the sale, so far as appellant is concerned, had she elected to do so within a reasonable time after the discovery of the facts. This she did not do, nor has she done so yet. This relief was not prayed in her complaint, but we think she had the right to elect, as she has done, to affirm the sale and require her agent to account to her for the actual purchase price.

Appellee was under no duty to inquire whether appellant had dealt with her in good faith. She had the right to assume that he had. Conditt v. Holden, 92 Ark. 618; Crissman v. Carl-Lee, 132 Ark. 32. Appellee lived in Kentucky, and her first actual knowledge to the contrary was obtained when she read a news item in a paper published in the county where the lands are situated concerning them. Upon reading this article she wrote immediately to the clerk and recorder for a copy of the deed from appellant to his grantees, and, when she obtained this copy, she learned that the sale had been made at $12.50 per acre. She did not then and has not yet asked a rescission, but, as we have said, she was not required to do so, as she had the right to affirm the sale the agent had made and to demand a settlement on that basis.

The decree adjudged a lien on the two-thirds interest of G. W. Sparks and G. A. Greer, who were properly made parties, for the balance- of the purchase money due by them to appellant; but this lien must inure to appellee’s benefit until she has first been paid. In addition, she will be awarded a lien on the undivided one-third interest of appellant to secure the balance of the purchase money due-her on the basis of $12.50 per acre, and the court below will enter a decree in accordance with this opinion.

Appellant filed a counterclaim and prayed judgment for compensation for prior services rendered by him to appellee as her agent; but the court found that such services as had been rendered had been paid for, and we concur in that finding.

Although the decree below is modified and the cause remanded with directions (because a lien on land is involved), we assess the costs of the entire case, including the costs of this appeal, against appellant, as we have awarded appellee the relief prayed for by her, which is not substantially less than the relief awarded her in the lower court, and because it appears equitable to us to do so.


author: McCulloch, C. J.

text:
    Williams v. Fort Smith.
    Opinion delivered July 7, 1924.
    1. Municipal corporations — authority op improvement district. —An improvement district is an agency for the purpose of constructing the improvement; it gains no proprietary interest in the street to be improved, and whatever control was given to it for the purpose of making the improvement ceased upon the completion of the improvement.
    2. Municipal corporations — rights op abutting owner. — The taxpayers of an improvement district, neither as such nor as abutting owners, have any proprietary interest in the street or in the discarded materials formerly used in paving the street by reason of the fact that they were paid for by taxation on benefits to adjacent property.
    3. Municipal corporations — right to use discarded paving material. — Whether a city owns the fee or merely an easement in streets, its continuous control over streets carries with, it the rights to use old discarded material paid for by taxation on benefits to adjacent property.
    Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor;
    affirmed.

      W. L. Curtis, for appellant.
    The salvage from the old pavement belongs to the ' abutting property owners, who paid for the original pavement through the agency of an improvement district, and not to the city. While there are no decisions directly on the point, by analogy the following authorities' sustain the contention: 75 Miss. 846, 65 A. S. R. 625 (citing many cases). As to the title and property rights of abutting property owners on a street or highway, see the following: 2 Ann. Cas. p. 497, par. 1; 2 Ann. Cas. p. 594 and note. The following cases hold that a city has no right to take earth from a street, except for grading, and same can be used only on streets forming part of the same general plan of improvement: 78 Ind. 1; 20 Ind. App. 482; 36 Ind. 90. See also 19 da. 89; 58 da. 595; 35 Iowa 89; 24 Mich. 514. The following cases may also be examined with profit: 37 Minn. 423; 34 Mich. 86; 125 Mich. 167; 1 N. H. 16; 24 N. H. 208; 88 N. Y. App. Div. 192. • • .

      George W. Dodd, for appellee.
    The powers of an improvement district are limited to the construction of the improvement, and it acquires no proprietary interest in the street. 56 Ark. 205; 97 Ark. 308; 103 Ark. 269; 105 Ark. 65. Where the city owns the fee, as in this ease, it has full proprietary rights, subject to the rights of the public to free use of the street. 29 C. J., § 258; 13 R. C. L., % 159, p. 184.
   McCulloch, C. J.

Rogers Avenue,.in the city of Fort Smith, was paved many years ago through the agency of an improvement district organized for the purpose of paving that and other streets of the city. The paving was constructed of bricks, which have about worn out, and another improvement district, known as Paving District No. 16, has been organized for the purpose of repaving Rogers Avenue with better material. Paving District No. 16 has no connection with the former district, and the boundaries of the two districts are not the same. In order to repave the district, it has become necessary to remove the old bricks. The city commissioners of Fort Smith propose to use the old bricks for the purpose of paving another street — -little used — and for the paving of which the old bricks, though worn, will be sufficient..

Appellants are owners of real property abutting on a portion of Rogers Avenue which is to be repaved, and they lay claim to the old material as such abutting owners, and they instituted this action in the chancery court against the city of Fort Smith and its commissioners to recover possession of the old material or its value, and to restrain the city commissioners from appropriating, it to the use of the city. The chancery court denied the relief prayed for, and an appeal has been prosecuted to this court.

We are of the opinion that the decree was correct. The old improvement district was but an agency for the purpose of constructing the improvement. The district gained no proprietary interest in the street, and whatever control was given to it for the purpose of making the improvement ceased upon the completion of the improvement. Pine Bluff Water Co. v. Sewer District, 56 Ark. 191; Pulaski Gas Light Co. v. Remmel, 97 Ark. 318. The authority of the municipality over the street did not pass away from it on account of the authority given to the improvement district for a special purpose. Pulaski Gas Light Co. v. Remmel, supra. Neither did the taxpayers of the district, as such, or as abutting owners, gain any proprietary interest in the street or in the material used, by reason of the fact that the improvement was constructed and paid for by taxation on the benefits to adjacent property. Authorities cited by the appellant as to the rights of abutting landowners to trees, minerals or other substances in a street dedicated to public use have no application to the present case. It is immaterial whether the city owned the fee or merely an easement. The city’s continuous control over the street carried with it the right to make use of discarded old material.

There is no question involved in this case of the right of abutting owners or the taxpayers in an improvement district to prevent an improvident waste of an improvement constructed with special taxes levied on the benefits to their property. It is not contended that the street does not need repaving, nor that it is a useless waste of material to tear up the old pavement and put down new. The only question raised is the bare one as to the title to the old material, and we are of the opinion that the city has the right to make use of the old material.

The decree is therefore affirmed.


author: Hart, J.

text:
    Thompson v. Kirk.
    Opinion delivered July 7, 1924.
    1. Appeal and error — ruling directing verdict. — In testing a ruling directing a verdict for plaintiff, the evidence is to be considered in the light most favorable to defendant.
    2. Landlord and tenant — right op landlord to possession. — • Where, in unlawful detainer, the undisputed evidence showed that the tenant failed to pay rent as agreed, that the landlord ’ then made demand in writing for possession, as required by the statute, the landlord was entitled to possession.
    3. Landlord and tenant — right to judgment on retaining bond. —Refusal of the trial court in unlawful detainer to render judgment against the sureties on defendant’s bond, given under Crawford & Moses’ Dig., § 4847, to retain possession, held error.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    modified.

      Cooper Thweatt, for appellant.
    A contract of lease made orally is taken out of the statute of frauds when the lessee goes on the lands and, in compliance with the oral contract, makes valuable improvements thereon; 112 Ark. 562; 117 Ark. 500; 125 Ark. 393. The facts show an occupancy from year to year. 61 Ark. 377; 227 S. W. (Ark.) 593; 229 S. W. (Ark.) 20. A six months’ notice was necessary to terminate the lease and dispossess appellant in 1923.

      Emmet Vaughan, for appellee.
    It is necessary, in order to take the case out of the statute of frauds, that the lessee must hold1 over under the consent of the landlord and must pay and the landlord receive a part of all of the rent. Nothing of this kind occurred in this case.
   Hart, J.

'This is an action of unlawful detainer brought in the circuit court by J. P. Kirk against A. K. Thompson to recover one-half acre of ground, on which is situated a storehouse occupied by the defendant.

There was a directed verdict in favor of the plaintiff, and, from the judgment rendered1, the defendant has duly prosecuted an appeal to this court.

Inasmuch as there was a directed verdict in favor of the plaintiff, in order to test the ruling of the court on this point the evidence must be considered in the light most favorable to the defendant.

According to the testimony of A. K. Thompson, he made a verbal 'contract with J. F. Kirk in the fall of 1916, whereby he was to erect a store building on a half acre of ground belonging to Kirk, and occupy it for five years. After that he was to continue to occupy the store building as long as he pleased for an annual rental of $25. The storehouse cost him $350. He moved into it in December, 1916, and occupied it until November or December, 1921, which was the expiration of the five years. Kirk did not say anything about his continuing to occupy the building for the year 1922. It was understood that Thompson had it, and was' to pay $25 for thi year 1922. Along about Thanksgiving day, 1922, Thompson told Kirk that his health was bad, and that he would sell his business if he could do so. Kirk talked about buying him out; but, during Christmas week of 1922, Kirk informed Thompson that he would not purchase his stock of goods. Thompson continued1 to occupy the store building during the year 1923. Thompson owed Kirk $25 for the rent of 1922, and has never paid him any rent for that year. Thompson did not pay Kirk any-rent for the year 1923. A written notice to quit, in the form provided by the statute, was served upon Thompson by Kirk in February, 1923. Thompson was notified to deliver possession of the premises to Kirk within three days after the service of the notice. Thompson refused to deliver possession of the premises, and Kirk instituted this action to recover possession of them. He gave the statutory bond required in a suit for unlawful detainer. Thompson gave bond to retain possession of the premises in the form prescribed by the statute.

Under this state of facts the court was correct in directing a verdict for the plaintiff. Our statute regulating the action of unla’ivful detainer confers upon a landlord the right to maintain it- upon the refusal of the tenant to pay the rent when due and to quit possession' upon demand in writing by the landlord. Parker v. Geary, 57 Ark. 301; Lindsey v. Bloodworth, 97 Ark. 541; Texas Hardwood Lumber Co. v. Richardson, 115 Ark. 28; Hallbrooks v. Rosser, 143 Ark. 559, and Martin v. Stratton, 157 Ark. 513.

According to Thompson’s own evidence, he failed1 to pay the rent for the year 1922, and the undisputed evidence shows that Kirk made a demand in -writing for the possession of the premises, as required by the statute. Hence the court properly directed a verdict in favor of the plaintiff for the possession of the premises.

'The plaintiff has taken a cross-appeal. It is insisted by him that the circuit court erred in refusing to render judgment in his favor against the sureties on the bond of the defendant. The defendant gave a bond to retain possession of the premises, under § 4847 of Crawford & Moses’ Digest. When the court .rendered judgment in favor of the plaintiff against the defendant for the possession of the premises, it should also have rendered judgment against the sureties on the statutory bond of the defendant.

Section 4854 of the Digest provides that, in all cases where judgment is rendered against the plaintiff or defendant for any amount of recovery, judgment shall also be rendered against his sureties on the bond given under the provisions of the' act.

The judgment will be modified so as to give the plaintiff judgment against the sureties on the statutory bond of the defendant as indicated, and, as modified, the judgment will be affirmed.


author: Smith, J.

text:
    Guile v. Snyder.
    Opinion delivered July 7, 1924.
    Highways — negligence in driving defective car. — When defendant was requested to drive some ladies home from a funeral, and for that purpose borrowed a car, which, unknown to him, proved to have a latent defect, by reason of which plaintiff was injured, defendant was not chargeable with negligence, since he was under no obligation to make a search for latent defects.
    Appeal from Saline Circuit Court; T. E. Toler, Judge;
    reversed.

      Brouse & McDaniel, for appellant.

      J. W. Westbrook, for appellee.
   Smith, J.

On December 1, 1922, appellant was one of a large number of persons who attended a funeral. After the burial the crowd began to disperse, and a Dr. Walton came to appellant and told him that two ladies had driven to the funeral in a Dodge car, and that the lady who drove the car had become ill and was unable to drive the car home. Dr. Walton asked appellant if he could not drive the Dodge car for the ladies. Appellant answered that he could not, but if some one had driven a Ford who could drive a Dodge he would drive the Ford home and the other party could drive the Dodge. This arrangement was made, and the ladies got in the Ford car with appellant, and they started home.

In leaving the cemetery it was necessary for the car to climb a hill, and, about the time appellant reached the top of the hill, the left hind hub of the car broke. He was thus left without a brake or control of the car, and it started rolling down the hill. Appellant could not stop the car, but he sought to retard its progress down the hill by cutting the car into the ruts of the road. There was nothing else he could do to stop the car or to retard it. He was afraid to turn the car out of the road for fear of overturning it. At the foot of the hill there was a congestion of vehicles, and there was also a little bridge on which there were a number of pedestrians at the time. Appellant sought to avoid running into this crowd, but lie was unable to blow the horn, as it was out of order.

As the car rolled down the hill, appellant discovered a tree, and he attempted to steer the car so that the back end of it would strike the tree and the car would thus be stopped. Jlust as he was about to do this, appellant heard some one call out, “Pull up! Pull off of him!” and he discovered that his car had jammed up against the running board of another Ford, and it caught appellee’s leg, and a painful but not serious., injury, was inflicted.

Appellee brought this suit to recover damages for the injury thus inflicted, and a verdict was returned in his favor, and from the judgment pronounced thereon is this appeal.

Appellee asked two instructions, both of which were given. These were instructions defining negligence and stating the measure of damages. At the request of appellant, the court gave instructions on the burden of proof, and instructions defining negligence.

No exceptions were saved to the instructions given, and the only exception saved to any instruction which was refused was by appellant to the refusal of the court to give an instruction directing the jury to return a verdict in his favor.

It is conceded that the only question in the case is whether the testimony is legally sufficient to support the verdict.

Appellee’s hearing is impaired to some extent, and his attention was not attracted to the rolling car. He was sitting on the running board of a ear which was ■parked on the side of the road, and he was oblivious to any danger until he was struck.

Appellant was thoroughly familiar with the operation of Ford cars, and had driven one for ten years. He had never driven the car in question before. He made no inspection of the car, as he assumed it was in running order. There was no defect about it which was patent and obvious. He assumed, without examination, that the car was in running order, when he started it and began the ascent of the hill. ■ :

The car was shown to have been in exceedingly bad repair, but this fact was unknown to appellant. The hub had ground out, and there was no way to control the car after the hub broke. The brakes would not work, and the car could not be stopped. The horn would not blow, and no alarm could be given.

Appellant was asked to drive the car in an emergency, and we do not think the ordinary care which he was required to use, under the circumstances, imposed on him any duty to search for latent defects.

The emergency under which appellant acted became more acute when the car, because of its condition, began rolling down the hill. Appellant’s time was completely occupied in his effort to prevent the car from overturning or from running into the people of whose presence at the foot of the hill he was aware.

It is not contended that appellant was guilty of any negligence in operating the car. Negligence is predicated upon the proposition that he should not have undertaken to drive a car the condition of which was so defective that it could not be safely operated. But, as we have said, the condition of the car was unknown to appellant, and we think he was not guilty, under the circumstances, of negligence in failing to discover its defects, or in driving it without an examination to discover defects which were not patent or obvious.

At § 9 of the chapter on Negligence, in 20 R. C. L., page 13, it is said: ‘ ‘ The foundation of liability, then, is knowledge — or, what is deemed in law to be the same thing, opportunity, by the exercise of reasonable diligence, to acquire knowledge — of .the' peril which subsequently results in injury. In a word, negligence or contributory negligence is lack of foresight or forethought. ’ ’ See also § 61 of the chapter on Bailments, in 3 R. C. L., page 138; Johnson v. Bullard Co., 12 A. L. R. 766; Huddy on Automobiles (6th ed.) § 339, p. 402.

We think there is nothing in the testimony to show that appellant did anything which an ordinarily prudent man would not have done, nor did he fail to do what an ordinarily prudent man would have done. He was, of course, chargeable with knowledge of any patent defect in the car which would have been discovered by the observation which an ordinarily prudent man would have made; but, as we have said, he was not required, under the circumstances, to make an inspection for latent defects in the car, and, as no negligence was shown, the judgment must be reversed, and, as the cause appears to have been fully developed, it is dismissed.


text:
    Mizell v. Mercer.
    Opinion delivered July 7, 1924.
    1. Landlord and tenant — abandonment of lease. — A lessee may abandon his lease either by words or by equivalent acts.
    2. Landlord and tenant — failure to plant crop. — Failure of a tenant to plant a crop out of which he agreed to pay rent would . amount to a repudiation of the lease, and a holding thereafter by the lessee would be unlawful.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      J. N. Rachels, for appellant.
    The court erred in instructing the jury to find a verdict in favor of the defendant.
    The failure of Mercer to sow oats and plant strawberries set ¡at naught his right to remain in possession of the leased premises. 57 Ark. 301; 97 Ark. 541; 150 Ark. 371.
   Humphreys, J.

This is a suit by appellant, lessor, to oust appellee, lessee, from the possession of the north half of the southwest quarter, section 30, township 6 north, range 7 west, in White County, on account of an alleged abandonment of the rental contract for same.

Appellee filed an answer denying that he had abandoned the rental contract.

The canse proceeded to a hearing, and, at the conclusion of appellant’s testimony, on motion-of appellee the court directed the jury to return a verdict for him, over the appellant’s objection and'exception, from which is this appeal.

It appears from the testimony that A. B. Hanley owned the land, and contracted to sell same to appellant some time in December, 1921, subject to a rental contract he had theretofore made with appellee for the year 1922. Hanley conveyed the land to appellant on January 30,1922. In October or November, 1921, he had leased it to appellee for a share of the crops, with the understanding that appellee would set out fifteen acres to strawberries in February or March, 1922, plant five bushels of oats, and plant the rest of the land in corn and peas. Appellee did not move upon the land himself, but placed a tenant thereon. According to the. testimony introduced by appellant, appellee failed to plant out the berries or to plant any crop on the land during planting season. The witnesses testified that neither appellee nor his tenant had plowed a furrow at the time this suit was instituted in April, 1922. This indicated that appellee had abandoned the rental contract, in which event he subjected himself to eviction. The lessee may abandon a contract creating a tenancy, either in words or by equivalent acts. A failure to pitch a crop out of which rent is agreed to be paid in kind would amount to a repudiation of the rental contract or lease, and a holding thereafter by the lessee would be unlawful. Buckner v. Warren, 41 Ark. 532; Lindsey v. Bloodworth, 97 Ark. 541; Leehy v. Fullerton, 150 Ark. 371.

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


text:
    Knight v. State.
    Opinion delivered July 7, 1924.
    Burglary — accomplice.—One watching outside while an accomplice broke into and stole from a store is as guilty as if he had committed the actual burglary.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      C. M. Wofford, for appellant.

      J. 8. Utley, Attorney General, and Jolm L. Carter, Assistant, for appellee.
   Hart, J.

Merritt Knight prosecutes this appeal to reverse a judgment of conviction against him for the crime of burglary. He was tried before a jury, and his punishment fixed by it at twelve months-in the State Penitentiary.

The only assignment of error relied upon for a reversal of the. judgment is that the evidence is not legally sufficient to warrant a verdict of guilty.

It appears from the proof that, on the night of the 8th of January, 1924, Otis Evans, a boy fifteen years of age, passed a Mr. Hitchcock’s store in the east part of Yan Burén, in Crawford County, Arkansas. As he approached the store he saw some men standing on the store porch, and one of them broke a window in the store and jerked the screen off of it. He did not recognize the men. Just before this he had seen an automobile with three or four men in it parked under an electric light about a block away. The car with the men in it. had gone around to the side of the store before it was broken into. Evans went to a house near by and telephoned the officers about the burglary.

Oscar Whitson, a member of the police force, received the information concerning the burglary about two o ’clock in the morning. He immediately telephoned Bill Beavers, who came for him in an automobile. As they approached Hitchcock’s store, they saw a car stopped along the side of it. The automobile then started on, and Whitson overtook it, and saw Preston Lea and Leo Campbell in the car. Whitson and Beavers then went back to the store, and they saw Merritt Knight and Speck Kelly standing on the edge of the store porch, which was a part of the sidewalk. Speck Kelly had a flashlight in his hand, and was motioning for them to come on np. Merritt Knight and Speck Kelly both approached the car, and the officers arrested them. They found $3 in money in the pockets of .Speck Kelly, and one dollar of this was in pennies. They also saw some cigarettes on the store porch near where the screen had been taken off of • the window. Knight and Kelly were standing close together in front of the store. Kelly was standing six or seven feet ahead of Merritt Knight.

Mathis Hitchcock was also a witness for the State. According to his testimony, he rah a grocery business with his brother.' After the defendant, Merritt Knight, and Fred (or Speck) Kelly had been captured, he was called to the store. He found that about $14 worth of bacon had been taken out of the store and piled back of the store. The money out of the cash register had also, been taken. He stated that there was about $3 taken, and about $1 of this was in pennies.

Merritt Knight was a witness for himself. According to his testimony, he had been to a dance near Hitchcock’s store on the night in question, and started home some time after one o’clock in the night. When he got down in front of Hitchcock’s store he saw a light in the store, and waited probably thirty minutes. A little later he saw a car coming, and stopped it in order to ride to town in it. Whitson jumped off of the car and arrested him.

Knight further testified that he was not with Speck Kelly at this time, and had not seen him for several weeks. He also testified that he was not with Leo Campbell and Preston Lea on that night. On cross-examination he admitted that he had been in the penitentiary one time and in jail more than one time. Other witnesses corroborated his testimony.

In testing the legal sufficiency of the evidence to support the verdict, it must be considered in its strongest light for the State. When this is done, we think the evidence authorized the jury to find the defendant guilty.

The uncontradicted evidence shows that some one broke into the store on the night in question. The proprietor of the store testified that the cash register was robbed and about three dollars were taken from it. One dollar of this was in pennies. This exact amount and kind of money was taken from Speck Kelly, who, with the defendant, was arrested at the scene of the robbery.

It is true that the defendant denied being with Speck Kjelly on that night, but the other witnesses say that the defendant and Kelly were standing on the porch in front of the store. Kelly had a flashlight, and beckoned the automobile containing the officers to come on. It will be remembered that another car had been parked near the store just before this. It is fairly inferable that Kelly and Knight thought that they were signaling the occupants of this car to come on. The witnesses for the State say that Kelly was .standing about six feet ahead of Knight. While Knight denies being with Kelly, the jury might have inferred that he did not tell the truth about this, and that they were both engaged in the burglary. The defendant admits seeing a light in the store some time after one o’clock in the morning, and that he watched it for thirty minutes. He does not attempt to explain what he saw.

All the'surrounding circumstances, when considered together, warranted the jury in finding the defendant guilty. If he was there, and watched on the outside while Kelly got the money and other property from the store, he was just as guilty as if he had actually taken the money out of the cash register himself. Thomas v. State, 43 Ark. 149; Glass v. State, 109 Ark. 32; Cook v. State, 109 Ark. 384; Marshall v. State, 101 Ark. 155; and Ingram v. State, 110 Ark. 538.

It follows that the judgment must be affirmed.


text:
    Payne v. State.
    Opinion delivered July 7, 1924.
    1. Bribery — sufficiency of evidence. — In a prosecution of a ■county judge for accepting a bribe for letting a certain bridge contract, evidence that the contract was let in an irregular manner and was improvident, and that the contractor was benefited by not being required to comply with the specifications, while competent, was insufficient of itself to prove that the contract was the result of a corrupt agreement.
    2. Bribery — evidence.—In a prosecution of a county judge for accepting a bribe from T. for letting a bridge contract to a certain contractor, evidence that T. stated that accused “is hard-boiled, and wouldn’t .turn a wheel until the money is in his hands,” held insufficient to' show a corrupt agreement between defendant and T.
    3. Criminal law — statement of co-conspirator. — Any adverse statement of a co-consp.irator made during the execution of the conspiracy, in the absence of the other conspirators, is admissible against them, hut not so if made after the consummation of the conspiracy.
    4. Criminal law- — statement of fellow-conspirator. — In a prosecution of a county judge for accepting a bribe from T. for letting a bridge contract’ to T.’s company, held that statements made by T. after the contract had been let, and in defendant’s absence, that T. had agreed to pay defendant $6,000 as a bribe to secure three bridge contracts for his company, and that accused let him off for $5,000, were inadmissible, being hearsay.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    reversed.

      Hill <& Fitzhugh, Bates •& Duncan, and Jno. F. Clifford, for appellant.

      J. S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Scott County for accepting a bribe of $2,000 from Bob Tate for letting a contract to the Southern Boad& Bridge Builders, Inc., to build a bridge over Fourche Biver at Murphy Ford, in said county. The indictment, omitting formal parts, is as follows:

“The grand jury of Scott County, in the name and by the authority of the State of Arkansas, accuses the defendant, Tom Payne, of the crime of bribery, committed as follows, to-wit: The said defendant, in the county and State aforesaid, on the 7th day of September, 1918, being then and there the duly and legally elected and the acting county judge of Scott County, Arkansas, did wilfully, unlawfully, corruptly and feloniously accept and receive- from Bob Tate, then and there being, $2,000 lawful money of the United States of America, of the value of $2,000-, as a bribe for the purpose of inducing and procuring him, the said Tom Payne, as such county judge, to let the contract for the building of a certain bridge over Pourche River at Murphy Ford, in Scott County, Arkansas, to the Southern Road & Bridge Builders, Inc., of Little Rock, Arkansas, and the said defendant, Tom Payne, unlawfully, corruptly and feloniously accepted and received said bribe from said Bob Tate for letting said contract to said Southern Road & Bridge Builders, Inc., aforesaid, against the peace and dignity of the State of Arkansas.”

A change of venue was taken to Sebastian County, Greenwood District, where appellant was tried, convicted, and adjudged to pay a fine of $2,000 and to serve a term of two years in the State Penitentiary as punishment therefor, from which judgment an appeal has been duly prosecuted to this court.

The 'State sought to convict appellant - upon the theory that the contract for building said bridge was let to the Southern Road & Bridge Builders, Inc., through a conspiracy between Bob Tate and appellant. In an attempt to establish the conspiracy, the State introduced evidence tending to show that the contract was let in an irregular manner; that it was an improvident contract, and that the contractor was not required to build the bridge in accordance with the plans and -specifications, which liberality redounded to its benefit and to the detriment of the county. The gist of the bribery charge was accepting the money for an evil or malevolent purpose. While the testimony above referred to was competent as tending to establish the charge, it was not sufficient within itself upon which to base an inference that the contract was the result of a bad motive or corrupt agreement between Tate and appellant. All of it could have been attributed to negligence on the part of appellant. The State attempted to supplement this. character of testimony by hearsay statements made by Tate and appellant to John Harris, and a statement made by Tate to Lee Pile, when issuing warrants to him, to the effect that appellant “is hard boiled, and wouldn’t turn a wheel until the money is in his hands. ’ ’ The statement to Pile was indefinite and did not refer to any specific corrupt agreement. It may have had reference to pay for something he expected appellant to do in the future, and have had no relation whatever to a corrupt agreement which had not been consummated concerning the bridge contract. Had this statement been connected up so as to show that it related to the letting of the bridge contract, the jury might well have inferred from it, in connection with the other testimony, that a corrupt agreement existed between Tate and appellant which was then in the course of completion or consummation. Any adverse statement of a co-conspirator during the execution of a conspiracy, in the absence of the others, is admissible against them, but not so if made after the consummation of the conspiracy.

The hearsay statements of Bob Tate, in the absence of appellant, as testified by Judge A. P. Smith, to the effect that he (Bob Tate) had agreed to pay appellant $6,000 as a bribe to secure three bridge contracts for his company, and that appellant let him off for $5,000, and that at one time appellant threatened to kill him unless he paid the whole amount, were inadmissible for the reason that they were hearsay, and that they were made after the consummation of the conspiracy. Judge Smith testified that he heard John Harris say that Bob Tate told' him that he had bribed appellant, and that the statement was made by John Harris during an investigation of the affair by appellant’s successor in office. The hearsay statement of appellant to the same effect was inadmissible, for the reason also that it was strictly hearsay evidence.

On account of the admission of the hearsay evidence, as well as the insufficiency of the other evidence to support the verdict, the judgment is reversed, and the cause is remanded for a new trial.


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    White v. Hudson.
    Opinion delivered July 7, 1924.
    Judgment — res inter alios acta. — In an action for cutting timber, where there was a conflict as to the boundary between adjoining tracts, plaintiff claiming the “W” line and defendant the “M” line, it was error to admit in behalf of plaintiff a decree between other parties adjudicating the correctness of “W” line through the same tier of sections but relating to other property rights.
    Appealed from Cleveland .Circuit Court; Turner Butler, Judge;
    reversed.

      George Brown and J. C. Clary, for appellant.
    The introduction of the chancery decree was in itself erroneous, and, in addition, it was erroneous to instruct the jury that they might consider the decree, not as binding, but as a circumstance tending, with the other circumstances in the case, to show which, was the true line, first, because it singled out and gave undue prominence to that particular circumstance (38 Cyc. 1674-5); second, it was not shown by the pleadings or otherwise in the case of England v. Dial, that the same issues and none others were involved in that case as in this, and the burden was on the appellees to show identity of issues (23 Cyc. 1532-1535); and third, the decree affected entirely different property, and the suit was between entirely different parties, between whom and the parties to this suit there was no privity of contract, blood or estate. 150 Ark. 594; 246 U. S. 158, 38 S. C. Rep. 301; 254 S. W. (Tex.) 255; 7 Enc. of Evidence, 829; Freeman on Judgments, 3rd ed., § 606.

      Woodson Mosley, for appellees.
   McCulloch, C. J.

Appellees instituted this action against appellant in the circuit court of Cleveland County to recover damages for alleged cutting of timber on lands of appellees. The parties are respective owners of adjoining tracts of land, there being a dispute as to the boundary. Appellant cut and removed timber on a portion of the land claimed by appellees. There is no question involved as to the title or right of possession of the tracts of land claimed by the respective parties, the only controversy being as to the boundary.

Appellees inherited the land from their father, J. B. Hudson, in whose lifetime two surveys had been made of the 'boundary line in controversy. One of the surveys was made by Judge McMurtrey, and the result of his survey is known as the “McMurtrey line,” and the other survey was made by Mr. Watts. The timber in controversy was cut 'between the two lines, and, if the Watts line is the correct boundary, the land between the two lines is a part of the tract owned by appellees, and they are entitled to recover, but, if the McMurtrey line is the correct boundary, the land is a part of appellant’s tract, and he is the owner of the timber in controversy. Each party introduced téstimony concerning the correctness of the surveys, and the court submitted that issue to the jury. There was evidence sufficient to sustain a verdict either way on the disputed issues as to the proper location of the boundary.

The court permitted appellees, over the objection of appellant, to introduce in evidence the record of a decree of the chancery court of Cleveland County in an action between Elizabeth England and E. A. Dial, adjudicating the correctness of the so-called Watts line, as extended through the same tier of sections as the land in controversy. When objection was made to the introduction of this testimony, the court stated that the decree was not binding on the parties to this' suit for the reason that it was rendered in a suit between different parties and related to a different tract of land, but that the jury might consider the decree “as a circumstance tending to shed light, together with all the other circumstances in the case, upon the question that you (the jury) are called upon to determine as to which is the' true line through the center of section four.”

The court, in its final charge to the jury, also gave an instruction, over appellant’s objection, the same in effect as the statement made by the court to the jury at the time the decree was admitted in evidence.

We are unable to call to mind any correct theory upon which this testimony was admissible. It was a decree rendered iñ a controversy between other parties than those connected with the present controversy, and it related to other property rights. The decree had no binding force against either of the parties to this controversy, and it was entirely without evidentiary force in this case. It devolved upon appellees, as the plaintiffs in the case, to prove that they were the owners of the land from which the timber was taken, and the decree in the litigation between other parties had no tendency to relieve them of this burden. There was a conflict in the testimony as to the correct boundary, and we have no means of determining what effect was made on the minds of the jury by this erroneously admitted testimony, therefore we must treat the error in admitting it as being prejudicial.

Reversed and remanded for a new trial.


author: Wood, J.

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    Wakin v. Morgan.
    Opinion delivered July 7, 1924.
    1. Landlord and tenant — unlawful eviction — damages.—In an action for unlawful eviction, evidence of net profits from the business and of the necessity of selling furniture and fixtures was inadmissible as too remote and speculative for consideration as elements of damage, in the absence of evidence that the ■ rental value was greater than the rent agreed to be paid and that the price received for the furniture was affected by the eviction.
    2. Landlord and tenant — unlawful eviction- — restitution.— Judgment for restitution of the premises to defendants, on a verdict awarding them damages for unlawful eviction, was proper, in view of Crawford & Moses’ Dig., § 4854.
    3. Appeal and error — cure of error by remittitur. — Error in a judgment in- forcible detainer awarding defendant damages in addition to restitution of the premises held curable by remittitur.
    Appeal from Miller Circuit Court; J. H. McCollum, Judge;
    affirmed.

      John N. Cook, for appellant.
    The court erred in permitting the appellees to reopen the case iand testify as to damages. The instruction on the measure of damages -given by the court was erroneous and prejudicial, and should not have been given. 36 Ark. 524; 76 Ark. 468; 110 Ark. 504. The question of restitution of the property was not submitted to the jury, and the verdict was not for restitution. It was error to put this in the judgment. 5 Ark. 700; 130' Ark. 575.
   Wood, J.

This is an action of forcible detainer instituted by the appellants against the appellees to recover possession of certain space in a building in Texarkana, Arkansas, owned by the appellants. The appellants alleged that they were the owners of the space mentioned; that they had leased the same to a Greek named Tony, from day to day, at the price of $1 per day; that appellee Morgan acquired an interest in the business with Tony, and entered into possession of the space, and paid appellants $1 per day until about October 26, 1922, at which time Morgan acquired the interest of Tony; that on October 31 the appellants caused a notice to be served upon appellees to vacate the premises on or before the 11th day of November, 1922; that appellees refused to quit and deliver the possession to appellants, but unlawfully detained the same. • Appellants alleged that the appellees were due them for rental the sum of $18, and that they were damaged by the unlawful detention in the sum of $50. They therefore prayed for a writ of possession and judgment in the sum of $68.

The appellees, in their answer, admitted that the appellants were the owners of the space in controversy and that same was rented to Tony at $1 per day; that they purchased from Tony the restaurant business which he was conducting in the space mentioned'; that, prior to the purchase of such business, furniture and fixtures from Tony, they leased the space in controversy from the appellants at a rental of $7.50 per week for a period of one year, for the purpose of conducting- the restaurant business; that the appellant well knew the character of the business which was to be conducted by the appellees, and contracted with them to permit them to use gas on the same meter that was used by the appellants in the building, the appellees to pay one-half consumed as shown by the meter. Appellees alleged that they took possession of the premises, and paid rent for the first week, which was accepted1 by the appellants; that, shortly thereafter, the appellants disconnected the gas from the space occupied by the appellees, which compelled them to úse other fuel to conduct their business; that the appellees tendered the next week’s rent when due, which the appellants refused to accept, and ordered the appellees to vacate the building; that, by reason of the wrongful acts of the appellants, the appellees had been damaged in the sum of $500, and further damaged by reason of the issuance of the writ of possession under which they were unlawfully deprived of possession, in the sum of $200. They prayed judgment in the sum of $700 and for costs.

The testimony on behalf of the appellants tended to prove that they rented the space to the Greek, who stayed over a month and a half, paying the appellants $1 per day. The Greek left on the 26th of October, and Morgan was in charge of the place. The appellants had no agreement with him. They told Morgan to get out. He stated that he was staying there until the Greek went to Little Rock. Appellants didn’t have any trade with him .at all, and served notice on him to get out. He tried three or four times to pay the appellants money, but they refused, and told him they wanted their store. The space was rented to the Greek for no definite time — only by the day. The appellants had ordered the Greek out before the appellees took possession, and demanded possession of the appellees the day .the Greek left the city. Morgan stayed in the building after the Greek left sixteen days, and never paid the appellants a cent. He wanted to pay and offered to pay three times, but the appellants refused to accept any rents from the appellees. They gave appellees notice to quit on November 11, 1922, and filed suit on November 13, 1922, and the sheriff put them out.

The testimony for the appellees tended to prove that the Greek was in possession of the space in controversy, doing a restaurant business. Appellees wished to purchase the business, and did buy it from the Greek. They had an agreement with the appellants before they purchased. Appellants made a contract with the appellees and with the Greek that the appellees should have the space for twelve months, provided they paid the rent once a week. Appellees paid one week’s rent. The Greek stayed with the appellees a few days after their purchase. When appellees took charge they did not owe appellants any rent. They paid' the first week’s rent in advance, and tendered the rent for the next week, but the appellants refused to take it. Appellees were put out by the sheriff. They were in business there about sixteen days.

Over the objection of appellants the court permitted the appellees to prove that their net profits were $35 the first week and the second week about $40. They were also permitted to prove, over the, objection of the appellants, that they were compelled to sell their furniture and fixtures at a loss, and also that they were not able to get any other place to do business in Texarkana. The court also permitted the appellee Morgan to testify, over the objection of appellants, that he remained in Texarkana, looking for work, for about two months.

The court instructed the jury, in effect, that, if they found from a preponderance of the testimony that the appellees entered into a contract with the appellants by which the appellants agreed to rent or lease appellees the room in controversy for one year, they should find for the appellees, “and assess their damages at whatever you find from a preponderance of the evidence that they were damaged by having been evicted from the premises.” The appellants objected to the instruction as to the measure of damages, and requested the court to instruct the jury that, if they found for the appellees, in arriving at a verdict as to the damages they could not consider any evidence as to the net profits. The court refused this prayer. To the rulings of the court the appellants duly excepted1. The jury returned a verdict in favor of the appellees in the sum of $100 damages. The court thereupon entered a judgment that the possession of the premises in controversy be restored to the appellees by the appellants, and that the appellees recover of the appellants the sum of $100 damages, and costs, and ordered a writ of restitution, and also that execution might issue. From that judgment is this appeal.

The court erred in permitting the appellees to testify as to what were the net profits from their business and that, after they were evicted by the appellants, they were compelled to sell their furniture and fixtures, and also that they were compelled to go out of business, and remained in Texarkana two months looking for work. This testimony tended to prove damages which were too remote and speculative to be considered as elements of damage. The appellees were entitled only to the actual damages which they sustained by reason of their eviction from the premises, which the jury found was unlawful.

In McIlvaney v. Smith, 76 Ark. 468, Judge Biddick, speaking for the court, announced the rule applicable to such cases as follows: “When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover in damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess, and, in addition thereto, any other loss directly caused by the eviction, such as the expense of rémoval to another place.” See also Byers v. Moore, 110 Ark. 504; Brockway v. Thomas, 36 Ark. 524.

The court erred in its instructions in not confining the jury to the actual damages and in not telling the jury that they could not consider net profits as an element of damage. There is no testimony in the record tending to prove that the rental value of the premises during the time the appellees were ousted was greater than that which they agreed to pay. The appellees testified that, by reason of the eviction, they were compelled to sell their furniture and fixtures, but there is.no testimony tending to prove that the price of such furniture and fixtures was in any manner affected by the eviction. The testimony in the record furnishes no predicate upon which the judgment for damages in the sum of $100 can be sustained.

The judgment for restitution based upon the verdict was correct and in accordance with the statute (§ 4854, C. & M. Digest). The errors entering into the judgment related only to'the damages, and these can be cured by a remittitur. If therefore the appellees will within ten days remit the damages adjudged against the appellants, the judgment will be affirmed. Otherwise, for the errors indicated, the judgment will be reversed and the cause remanded for a new trial as to the damages.


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    Missouri Pacific Railroad Company v. Wood.
    Opinion delivered July 14, 1924.
    1. Appeal and error — conolusiveness of verdict. — The verdict of a jury upon conflicting evidence is conclusive.
    2. Railroads — fire—evidence.-—Evidence held legally sufficient to sustain finding that fire was communicated to plaintiff’s building by a passing locomotive of defendant.
    3. Damages — building destroyed by fire. — The measure of damages for a building destroyed by fire is its replacement value, taking into consideration the depreciation of the building before the fire; in other words, the cash market value of the building.
    Appeal from Ouachita Circuit Court; L. S. Britt, Judge;
    affirmed.

      E. B. Kinsworthy and Samp Jennings, for appellant.
    Instruction No. 3 as to the measure of damages was erroneous. The proper measure of damages was the difference between the market value of the property before and after the fire. 81 Ark. 13; 67 Ark. 371; R. C. L., p. 480, No. 43; R. C. L., p. 481, No. 44.

      Smead & Meek and Creed Caldwell, for appellee.
    Instruction No. 3 correctly told the jury that the measure of damages sustained by plaintiffs was the reasonable cash market value of the property destroyed at the time and place of the fire. 130 Ark. 522. See also 77 . N. W. (Iowa) 517; 33 Cyc. pp. 1389, 1390, 1391. - The .case in 81 Ark. 13 relied on by appellant is not in-conflict with this view. See also 89- Ark. 418; 88 Ark. 533. The plaintiffs were entitled to the amount allowed by the jury. 119 Ark. 143.
   McCulloch, C. J.

Appellees instituted this action against appellant railroad company to recover the value of a building destroyed by fire, which is alleged to have been communicated to the roof of the building from a passing locomotive. The building was rented by appellees to tenants for business purposes, and it was totally destroyed by fire. The value of the building was alleged to be the sum of $2,000, and recovery was asked for that amount, with statutory penalty and attorney’s fees.

' The appellant answered denying that the fire which eonsnmed thé building of appellees was communicated írom an engine.

There was a trial of the issues before a jury, which resulted in a verdict in favor of appellee for the value of the building, fixed by the jury at the full amount sought to be recovered by appellees.

The fire occurred between two and three o’clock on the morning of July 13,1921. The building was situated ■in the city of Camden, near appellant’s track, and testimony was adduced tending to show that a northbound freight train, operated by appellant, passed • along the track near the building shortly after two o’clock in the morning of the date mentioned, that the engine was throwing sparks at the time, and that the fire was discovered shortly afterwards. One of the witnesses testified that a fire alarm was sounded about thirty minutes after the train had passed. It was a northbound train, according-to the-testimony of appellee’s witnesses. The. .witnesses-also testified that, when the fire was discovered and the alarm was sounded, it was observed that the roof of the building was on fire, and that there was no fire at first on the inside of the building. Testimony was also introduced concerning the value of the building.

■ There was a sharp conflict in the testimony in that appellant introduced witnesses whose testimony, if believed, established the fact beyond controversy that the only northbound train on appellant’s track which passed through Camden on the night in question was a certain extra freight train, which passed Camden about ten o’clock and arrived at G-urdon about twelve o’clock. Appellant introduced its train dispatchers, and the train-master, and the conductor, engineer and fireman of the particular train involved in this controversy. The record of- the movement of trains was also introduced, and all this testimony tended very .strongly to prove that the only northbound freight train'that night was One which passed through Camden about ten o’clock — certainly not later than eleven o’clock. We cannot, however, treat this testimony as uncontradieted, for several witnesses introduced by appellees testified positively that a northbound-freight train passed through Camden on appellant’s road about two o’clock or two-fifteen in the morning. There being a conflict, and there being legally sufficient evidence to justify a verdict either way, we are not at liberty to disturb the finding of the jury on that issue.

There is also a conflict in the testimony as to the location of the fire at the time it was discovered and the alarm given. As before stated, appellee’s witnesses testified that the roof was burning, and that there was no indication of fire on the inside of the building, but, on the other hand, appellant’s witnesses testified that the building was’afire on the inside, not on the roof. Appellant also introduced photographs and other testimony tending to show that the building caught from the flue of a stove in the rear end of the building.

It is earnestly insisted that the evidence is not sufficient to sustain the verdict, but we are of the opinion that there is legally sufficient evidence on all of the issues in the case, and that the verdict of the jury is conclusive.

The only other assignment of error relates to an instruction given by the court on the measure of damages, which stated the measure of damages to be the cash market value of the building. It is contended- that the measure of damages should have been stated as the difference between the value of the premises before and after the destruction of the building. That question has, however, been put at rest by the decision of this court in the case of Bush v. Taylor, 130 Ark. 522, where we said that “if the value of the property destroyed depends upon its connection with the soil, the measure of the damages is the difference in the value of the land before and after the fire. But, if the property destroyed could be replaced in substantially the condition in which it existed before the fire, then the measure of the damages is the cost of so replacing it.” This means, of course, the replacement value, taking into consideration the depreciation of the old building, and'that is tantamount to saying that the cash market value at the time is the true measure of damages. In the opinion in that case there is pointed out the distinction between destroyed property, such as fruit trees, pasture grasses, etc., which depend for their value upon their connection with the soil.

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