author: McHaney, J.

text:
    Martin v. Bogard.
    Opinion delivered February 6, 1928.
    1. Clerks op courts — distribution op funds — negligence.—A clerk of court and sureties on his bond are liable for his negligence in not promptly obeying an order for the distribution of'a fund paid to him as clerk, which he deposited in bank of which he was director, without order of the court, which bank became insolvent.
    2. Clerks of courts — negligence in failing to cash check. — A clerk of court and sureties on his bond are liable for his negligence in not promptly cashing a check drawn by his predecessor in office for a fund paid to him in his official capacity and by him deposited in a bank which became insolvent, without an order of court authorizing such deposit.
    3. Clerks of courts — excuse for failing to distribute funds. — In a suit against a clerk of court and the sureties on his bond for negligence in failing to obey promptly an order to distribute a fund in his hands, the clerk is not excused from obeying the order because of a supersedeas bond filed more than 30 days after the order was made, since, under Crawford & Moses’ Dig., § 7160, the bond was filed too late to authorize the issuance of supersedeas.
    4. Appeal and error — time for filing supersedeas bond. — Under Crawford & Moses’ Dig., § 2160, the clerk was without authority to accept and file' a supersedeas bond executed more than 30 days after the judgment had been rendered, or to issue a supersedeas thereon.

      5. .Clerks of courts — effect of order to distribute funds. — An order of the court directing the clerk to distribute funds held by him in his official eapáeity, held to apply to his successor in office without the necessity for a new order.
    6. Clerks op courts — deposit of fund in bank. — A clerk of court who deposits in bank, without authority from the court, moneys which constitute a fund in court, does so at his peril, and will be responsible on his official bond if the bank fails.
    7. Appeal and error — ineffective supersedeas- bond-. — While a supersedeas bond filed more than 30 days after the judgment is ineffective as a supersedeas - bond, it is nevertheless good as a common-law bond, and the sureties are liable thereon for damages sustained by appellees.
    8. Appeal and error: — liability of sureties on ineffective supersedeas bond. — Where a bank which was one of the distributees of a fund failed to prosecute an appeal from a judgment ordering distribution, the sureties on its ineffective supersedeas bond are liable to the other distributees only for the interest on the fund to which each of such distributees was entitled under the judgment.
    9. Clerks of courts — liability for failure to- distribute fund.— A clerk of court, though negligent in not promptly obeying an order of court to- distribute a certain fund, is not liable to the sureties on an ineffective supersedeas bond for the sureties’ liability to certain distributees, because a dissatisfied distributee had not prosecuted an appeal from the order of distribution.
    10. Banks and banking — distribution of assets o-f insolvent bank. — Distributees of a fund which a clerk of court had deposited in a bank, which became insolvent after taking over another -bank which was a distributee, held entitled only to the proportionate share of 20 per cent, dividend paid by the Bank Commissioner under order of court, and hence it was error to order a surplus payment on hand to be paid to- one of the distributees, since such surplus should have been ordered returned to the Bank Commissioner for distribution among all of the bank’s creditors.
    Appeal from Cross Chancery Court; C. D. Frierson, Special Chancellor;
    reversed in part-.

      Maim & Maim, Ogam, & Shaver and Bloch & Kirsch, for appellant.

      Sivley, Evans & McCadden, Killough, Killowgh & Killongh, and M. B. Norfleet, Jr., for appellee.
   McHaney, J.

Appellant R. A. Martin was, until January 1, 1925, and for some years prior thereto, clerk of the circuit and chancery courts of Cross County, and the appellants R. L. Block and N. B. Martin were the sureties on his official bond. Appellant E. L. Cooper became the clerk of said courts on January 1, 1925, and is now such clerk, and the appellants "W. W. Stacy and O. C. Beamon are the sureties on his official bond. In a suit which originated in the circuit court of said county, but which was later transferred to the chancery court, in which the Parkin Home Bank, was plaintiff, A. N. Beattie and A. R. Bogard were defendants, and certain insurance companies that admitted liability to said Bogard in the sum of $7,311.19 were garnishees, and appellee F. W. Dew-son, doing business as the Shelby County Oil Mill, was intervener, the court made an order, on the 17th day of April, 1924, directing the garnishees to pay said sum to R. A. Martin, as clerk of the court, which they did, and were discharged from any further liability in the case. Martin accepted said sum from the garnishees, and deposited same in the Bank of Parkin, of which he was a director, on April 18, 1924. Thereafter, on the 22d day of September, 1924, the chancery court entered a decree in that cause, by which judgment was given in favor of the Parkin Home Bank against Beattie in the sum of $4,943.45, with interest, against the defendant A. R. Bogard, in the sum of $3,000, with interest at the rate of 8 per cent, per annum from August 4, 1922. In the same suit the intervener, Dewson, recovered judgment ag’ainst Bogard in the sum of $2,812.70, with interest at the rate of 8 per cent, per annum from April 15, 1924, and it was further decreed that A. R. Bogard recover judgment against the plaintiff, Parkin Home Bank, in the amount of the interest at 6 per cent, per annum from December 17, 1923, on the sum of $7,311.19. And it was further decreed “that R. A. Martin, clerk, from the funds in his hands pay all costs herein accrued, the judgment of F. W. Dewson and the judgment of the Parkin Home Bank against the defendant A. R. Bogard, after first deducting from said judgment of Parkin Home Bank against the defendant, A. R. Bogard, an amount equal to the interest on the sum of $7,311.19, as stated.”

This judgment was rendered on September 22, 1924, as heretofore stated, but was not entered until December 17, 1924. The Parkin Home Bank, not being satisfied with the decree of the court, prayed and was granted an appeal to the Supreme Court, and on December 20, 1924, filed with Martin, as clerk, its supersedeas bond, with R. Y. Wheeler, Sidney P. Stallings and R. W. Minnie as sureties thereon. No appeal was prosecuted from this judgment, and the clerk, Martin, did not comply with the order of the court by paying out the funds in his hands, as directed. On January 1, 1925, Martin went out as clerk, and was succeeded by Cooper, and on February 23, 1925, Martin gave his check to Cooper for the full amount of the deposit in the Bank of Parkin.

On January 9, 1924, by direction of the Bank Commissioner, the Parkin Home Bank ceased doing business as a banking institution, and was taken over by the Bank of Parkin, a new institution organized for such purpose, with substantially the same officers and stockholders as the Parkin Plome Bank, which purchased all the assets of the Parkin Home Bank, except a list of assets that the Bank Commissioner would not permit to be taken over by the new bank, in the sum of approximately $140,000, for which the Parkin Home Bank executed its note to the Bank of Parkin, and the assets not acceptable to the Commissioner' were pledged as collateral to secure'the note of the Parkin Home Bank. The Parkin Plome Bank was insolvent at the time on account of the paper the Bank Commissioner required to be taken nut of the assets. Martin continued to be a director in the Bank of Parkin. Thereafter, on the 23d day of March, 1925, the Bank of Parkin was declared insolvent, and taken over by the Bank Commissioner for liquidation. At the time its doors were closed appellant Cooper had never presented the check given him by Martin for the fund in court, but still held it, without making any effort to collect same or to perform the order of the court in distributing said fund in accordance with the decree rendered September 22,1924, and entered December 17, 1924.

So, in August, 1925, appellees Bogard and Dewson brought this suit against all the appellants and all the other appellees, including Sidney F. Stallings, who does not appear to be a party to this appeal, and Loicl Rainwater, the then State Bank Commissioner, to recover from them the respective amounts of their judgments as heretofore set out and due them as determined in the prior suit, and which was not paid by reason of the failure of the Bank of Parkin. ■ Neither Martin nor Cooper filed any claim with the Bank Commissioner for the $7,311.19, but later a dividend was paid by the Bank Commissioner, under order of court, to the Cross County Bank, as registrar of the court, in the sum of $1,462.23, which was 20 per cent, of said fund in court, pending determination as to who was rig’htfully entitled thereto.

The Bank Commissioner answered that, under the terms of the original decree, and of the fund in court deposited in the Bank of Parkin, he was entitled to offset the amount of the .judgment in favor of the Parkin Home Bank, which, with interest .to the time the Bank of Parkin was taken over by him, amounted to $3,634.70, and which, when taken from the original fund, including interest to said date, amounting to $7,865.62, would leave a balance of $4,241.38, held by him as a general deposit as of said date, on which dividends are payable as made to all creditors of the bank. He further alleged that, on said date, the amount of Dewson’s claim, with interest, was $3,024.10, and Bogard’s $1,206.82, which latter amount was the balance due Bogard under the terms of the original decree, after paying his indebtedness to the bank, ■with interest, and taking out the indebtedness due Dew-son; that, after paying the 20 per cent, dividend on said respective sums, there was a balance in the hands of the Cross County Bank, as registrar, in the sum of $616.05, which should be paid back to the liquidating agent into the general assets for distribution among the general creditors of the Bank of Parkin.

On a final hearing the court entered a decree in favor of Bogard and against appellants, the two clerks and the sureties on their respective bonds, in the sum of $1,206.82, with interest at 6 per cent, from March 23, 1925; in favor of Dewson against the same appellants in the sum of $3,024.10, with interest at 6 per cent, from March 23, 1925; and in favor of Bogard and Dewson against Minnie and Wheeler for interest on their, respective sums due them from the fund in court from the 22d day of September, 1924; and in favor of Minnie and Wheeler against the two clerks and their sureties, the amounts decreed against them in favor of Bogard and Dewson. The court denied the prayer of the Bank Commissioner for the return of $616.05, and ordered the amounts paid to Bogard and Dewson as a dividend on their claims, to be credited therewith, and that the additional sum of $616.05 in possession of the Cross' County Bank be paid to Dewson and applied as an additional credit on his claim; that Minnie and Wheeler should pay one-half the costs in this action, and that the two clerks and their sureties should pay the other one-half thereof, and that Minnie and Wheeler should pay all costs in the original action. The court also allowed, as a claim against the Bank Commissioner, the amount due Bogard in the sum of $1,206.82, and the amount due Dewson in the sum of $3,024.10. From this judgment the two clerks and their sureties have appealed, and Bogard and Dewson have taken a cross-appeal against Minnie and Wheeler.

1. As to the liability of the two clerks and their sureties, the lower court found that they were both guilty of negligence in the handling of said fund, and that they were therefore liable to the appellees Bogard and Dew-son therefor. We think the court must.be sustained in this regard. R. A. Martin, clerk, permitted said sum to remain in the Bank of Parkin from April 18, 1924, until February 23, 1925, at which time he gaye a check to Cooper, during all of which time he was a director in the Bank of Parkin, and had been a director in the Parkin Home Bank prior to its failure, and he must have known of the insolvent condition of the Bank of Parkin at the time of giving this check, and prior thereto. The Bank of Parkin was closed within less than thirty days after giving' such check. Cooper was negligent in not cashing said check within a reasonable time after he accepted same, and both were negligent in not distributing the funds to the parties entitled thereto, in compliance with the order of the court. Martin says the reason he did not distribute it was. because of the supersedeas bond, and Cooper says the reason he did not cash the check was because he had no order of court to do so. But the filing of the supersedeas bond did not excuse Martin from distributing said funds, for the reason that said bond was filed too late for the clerk to issue a supersedeas thereon, for at that time only the clerk of the Supreme Court could have done so. Section 2160, C. & M. Digest, reads as follows: ‘‘Where the appeal is granted by the court rendering the judgment or order, and the bond is executed within thirty days thereafter, before the clerk of such court, the supersedeas shall be issued by such clerk; in all other cases it shall be issued by the clerk of the Supreme Court.” Therefore, since the supersedeas bond was filed more than thirty days aft'er the rendition of the judgment, Martin had no authority to accept and file same, or to issue a supersedeas thereon. Hence the filing of the supersedeas bond was no authority for Martin’s withholding the distribution of the fund in •court. Neither did Cooper require an order of court directing him to cash said check and distribute said fund in accordance with the order of the court, as the fund had not been deposited in the Bank of Parkin by order of the court. It was the voluntary act of Martin in so doing, and was the voluntary act of Cooper in permitting it to remain there after receiving the check from Martin, for the period of time shown here. Cooper was the clerk after January 1, 1925, and the order of the court directing the clerk to distribute the funds applied to him the same as to the previous clerk, after he went into office.

Learned counsel for appellant urgently contend that a clerk who receives custody of private funds under the order of court, and places same in a bank reputed to be solvent, and that later the bank fails and the said fund is lost, without any negligence on the part of the clerk, the clerk and his sureties would not be liable therefor. Several cases from courts of other States are cited to support this principle, but we are of the opinion that this court is committed to the contrary rule. In the case of State v. Watson, 38 Ark. 96, this court held, quoting the syllabus, which is sustained by the opinion in the case, as follows:

“"When money in the control of the circuit court is, by its order, placed in the custody of the clerk, he holds it in his official capacity,- and may be punished for contempt for failing to pay it over as ordered by the court, and deprived of his office for malfeasance; and he and his sureties will be liable for it on its official bond to the party entitled to it.”

True, .n that case, the money had not been deposited in a -bank by the clerk, and there is this difference in the facts of the two cases. In that case the court ordered the clerk to pay +he money over to the party entitled thereto, which he failed to do, and this court, in discussing the case, commented upon § 4818 of Gantt’s Digest, now § 1349, C. & M. Digest, relating to the deposit of funds in court in bank by order of the court. No such order was made in that case, and none was made in this. .The clerk, on his own motion, and without any authority from the court, deposited the funds in the Bank of Parkin, a bank of which he was a director, which had taken over a former insolvent bank of which he was a director, and in which the note of the former bank was listed among the assets in the sum of $140,000, and which latter bank failed only a short time more than a year after its organization. See also Howard v. United States (C. C. A.) 102 Fed. 77.

We therefore hold that, unless the clerk of the court is protected by the order of the court, as provided in § 1349 of the Digest, in depositing moneys which constitute a fund in court in a bank, he does so at his peril, and will be responsible therefor on his official bond on failure of the bank. If he desires protection, he should obtain an order of the court directing him to deposit the fund in the bank.

2. The next question for consideration is the liability of the sureties on the supersedeas bond. The lower court held Minnie and Wheeler liable only for the interest on the respective amounts due Bogard and Dewson as of September 22, 1924, with interest thereon from the 23d day of March, 1925, until paid, such amounts being, respectively, $36.85 and $106.40. We think the decree of the court was correct in this regard. The supersedeas bond was filed out of time, and did not become effective as a supersedeas bond, but was good' as a common-law bond to pay appellees, Bogard and Dewson, such costs ■ and damages as they might sustain, and the damages sustained would be the interest on the funds to which Bogard and Dewson were entitled, including the costs, which the court adjudged properly. Moreover, even though said supersedeas bond had been effective as such, there could have been no further .liability thereon to Bogard and Dewson, as they did not obtain any judgment against the Parkin Home Bank, but only a judgment against the clerk, directing him. to distribute the funds in his hands. The bank was dissatisfied with the amount recovered by it in the order of distribution, and was appealing from that order, but not from any judgment of Bogard and Dewson against it. We do not think the appellants are liable to Minnie and Wheeler for these sums adjudged against them.

3. The order of the court directing the Cross County Bank to pay to Dewson the $616.05 held by it was erroneously made. Bogard and Dewson were entitled to the same dividend on their respective claims as the other creditors, of the bank. The liquidating agent had deposited a dividend of 20 per cent, on the total fund of $7,311.19, or $1,462.23, in the Cross County Bank, as registrar of the count, for the benefit of the parties entitled thereto. The claim of Bogard was allowed in the snm of $1,206.82, and the qlaim of Dewson in the snm of $3,024.10, and 20 per cent, of their respective claims was properly paid to them. The $616.05 left over ont of this fund, after paying’ the correct amount to Bogard'' and Dewson, should have been ordered returned to the liquidating agent for distribution to all the creditors of the bank. Otherwise, if the order of the court is carried out, Dewson would become a preferred creditor of the bank, which he is not.

We therefore sustain the contentions of the Bank Commissioner on his cross-appeal. The judgment will ' therefore be affirmed on the appeal and the cross-appeal against Minnie and Wheeler, and reversed on the cross-appeal of the Bank Commissioner and on the judgment against appellants in favor of Minnie and Wheeler, with directions to enter a decree in accordance with this, opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Northwestern Rug Manufacturing Company v. Leftwich Hardware & Furniture Company.
    Opinion delivered February 6, 1928.
    1. Evidence — written contract — parol evidence of fraud.. — In actions where the defense is based upon fraud in procurement of the contract, it is competent to show by parol evidence that the execution of the written contract was procured toy false and fraud- • . ulent representations.
    2. Appeal and erRor — when error cured. — Where the court by specific instructions took a certain issue from the jury, whatever error was committed in admitting evidence upon that issue was cured.
    3. Evidence — former testimony of absent witness. — It was not error to permit 'a witness to testify as to the substance of the testimony of another witness out of the State at the time of trial, given before a justice of the peace on a former trial.
    4. Appeal and error. — .review of testimony — abstract. — An assignment of error as to testimony of a certain witness is not reviewable, where the testimony was not abstracted so' as to inform the court of the ground of complaint.

      Appeal from Logan Circuit Court, Southern District; J. O. Kinccmnon, Judge;
    affirmed.

      W. H. Dunblazier, for appellant.

      Evans & Evans, for appellee.
   McHaney, J.

Appellant sued appellee in the justice court of Logan County for $87.65 on an order given by appellee to appellant for rugs and pillow tops. On judgment being rendered against it there, appellant appealed to the circuit court, where the case was tried de novo. Appellee admitted the execution of the order, but defended on the ground that appellant’s salesman practiced a fraud on it in the procurement of the order by agreeing with it that, if it would purchase the goods and execute the order, appellee would become the exclusive agent in Magnzine, Arkansas, for the sale of appellant’s goods; that said salesman told appellee, before executing the order, that he had not sold any other merchant in Magazine any of said goods, and that he would not do so; that, relying on these representations, it placed the order therefor; that such statements and representations were false and fraudulent, for the reason that said salesman had already sold, and did thereafter, on the same day, sell the same goods to two other merchants in the town of Magazine.

The order which appellee signed contained this clause at the 'bottom thereof: “Any special terms or agreements with the salesman will not be binding unless specified above.”

Witnesses for appellee were permitted to testify, over appellant’s objection, that appellant’s salesman made the representations heretofore stated, and that appellee would not have executed the order except for these representations and promises.

On the same date on which the order was given, A. M. Leftwich, for appellee, wrote appellant, canceling the order that day given, on the ground that he was not to sell any one else in town, and that he had found that two other sales had been made to other stores, and advising appellant not to ship the goods, as he would not receive them. Proof of other sales was also made.

The court, over objections and exceptions of appellant, submitted this issue to the jury, under instructions which are not complained of, except on the ground that the evidence admitted and the instructions given for appellee tended to vary the clause in the written contract heretofore quoted. Evidence was also admitted, over appellant’s objections, as to the quality of the rugs shipped being different from the samples submitted, but this question was withdrawn from the jury by specific instructions of the court not to consider same. The jury returned a verdict for appellee, hence this appeal.

1. The first assignment of error is that the court erred in submitting to the jury the defense that the order sued on was obtained by fraud. This assignment cannot be sustained. The defense relied on did not vary the terms of the written contract, but, on the contrary, if true, made voidable the whole contract. It related to the matter of inducement to enter into the written contract, and constitutes a good defense to the action. Keith v. Herschberg Optical Co., 48 Ark. 138, 2 S. W. 777; French & American Importing Co. v. Belleville Drug Co., 75 Ark. 95, 86 S. W. 836, where Judge Battle, speaking for the court, said:

“The representation was that plaintiff had not sold airy goods of the class contracted for by defendant to any one in the town of Belleville, before the contract sued on was made, when in fact it had already done so. This was one of the material inducements that led to the making of the contract, without which, as shown by the answer, the defendant would not have entered into it. Having been obtained by fraud, it is voidable.”

So, in actions where the defense is based upon fraud in the procurement of the contract, it is competent to show by parol evidence that the execution of the contract was procured by false and fraudulent representations, regardless of the fact that the contract is in writing. Brown v. Lemay, 101 Ark. 95, 141 S. W. 759.

There was therefore no error in the admission of the evidence, or the giving of the instructions in this case.

2. As already stated, the court took from the consideration of the jury the evidence admitted which tended to show that the goods shipped were not in-.accordance with the samples exhibited. Having taken this question away from the jury, by specific instruction, the court cured any error there might have been in its admission.

3. It is next urged that the court erred in permitting Julian Leftwich to testify to the substance of testimony given by Lee Jones before the justice of the peace in the original trial of this ease. Lee Jones had testified before the justice of the peace that he was in business in Magazine, and that he had purchased an order of goods from appellant’s salesman, who promised him the exclusive agency of such goods in Magazine. Jones, at the time of the trial in the circuit court, was shown to be out of the jurisdiction of the court, out of the State, and’ the court permitted Julian Leftwich to testify what Jones had testified to before the justice of the peace. Appellant was represented there by counsel, and cross-examined the witness. There was no error in permitting this testimony.

4. The final assignment of error relates to the testimony of one George Swearingen, with reference to conversations between Julian Leftwich and appellant’s salesman, but appellant has not abstracted the testimony of George Swearingen, so as to inform us of the ground of complaint against it.

We find no error, and the judgment is affirmed.


text:
    Mutual Relief Association v. Barton.
    Opinion delivered February 6, 1928.
    1. Insurance — payment op benefit certificate. — Where a mutual relief association issued a certificate of membership numbered 683, for $1,000, in which the appellee was named beneficiary, payment being conditioned on the other certificate holders meeting their assessments, and where, after the holder’s death, the asso- ■ eiation settled the claim with appellee by issuing a check to him in the sum of $500 marked in payment of policy No'. 683, a presumption will be indulged that it was in full payment, in the absence of proof to the contrary.
    2. Insurance — payment of beneficial certificate — burden of proof.' — In an action against the Mutual Belief Association to recover balance of benefit certificate for $1,000 after receipt of payment of $500 by a check purporting to be. in payment thereof, the beneficiary has the burden to show that the check was not intended to be in full payment.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    reversed.

      John P. Roberts, for appellant.

      Pole McPhetridge, for appellee.
   McHaney, J.

The Mutual Relief Association issued a certificate of membership to Mary P. Barton, insuring her life, after the expiration of 78 months, in the sum of $1,000, in which the appellee, Basel H. Barton, was named the beneficiary. The payment of $1,000, however, was conditioned upon the prompt and due payment, by all the certificate holders in the circle to which she belonged, of any and all assessments that might be made against them. In other words, the company agreed to pay the beneficiary such a sum as might be realized from an assessment of the members of the circle in which the insured member belonged.

The said Mary P. Barton died after the period of 78 months had elapsed from the date of her policy, in good standing, and it is shown that an assessment was made, from which $250 was realized, and, after deducting the expenses of making the assessment, $20, tendered the balance, $230, to the beneficiary, which was refused. Thereafter, on August 15, 1925, the association settled this claim by issuing a check to appellee in the sum of $500, and there was written on the check that it was issued in the payment “Por policy 683 Co. B. Insured: Mary P. Barton.” This check was accepted by appellee, and cashed. He thereafter instituted this > suit to recover the remaining $500, which he claimed to be due under the policy, and the jury returned a verdict against appellant and the sureties on its bond in such sum, from which is this appeal.

We think the check was issued and accepted in full satisfaction of all claims and demands arising under the policy, and that the court should have given the peremptory instruction requested by appellant. There is no substantial evidence in' the record tending to' show that the payment of $500 was in partial settlement of the amount due on the policy, but, on the contrary, the check shows on its face that it was for policy Nó. 683 on the life of Mary F. Barton. It does not say that it was in partial payment for policy No. 683, and the presumption must be indulged that it was in full payment thereof, iñ the absence of proof to the contrary, and the burden was on appellee to show to the contrary.

As heretofore stated, there is no substantial evidence in the record tending to show that appellant promised io pay any additional sum. The judgment will therefore be reversed, and the cause dismissed.


text:
    Sanderlin v. State.
    Opinion delivered February 6, 1928.
    1. Homicide — admissibility op dying declarations. — Where decedent stated, “You had better hurry up and get a doctor, I am dying,” and where there was evidence that he was cut to pieces and that he died seven or eight hours after the wound was inflicted, the evidence was held sufficient to admit proof that he told witnesses that accused had cut him.
    2. Criminal law — instruction as to dying declarations. — In' a prosecution for murder, refusal of the court to instruct the jury at the request of accused, that, although the statement of deceased that accused had cut him was admissible as evidence, still it was a question for the jury to determine what weight they should give such testimony, and in determining this question they should take into- consideration other statements made at a time when deceased had lost hope of recovery, held error.
    3. Homicide — admissibility and weight op dying declarations.— It is the province of the court to determine whether a declaration of a decedent was made under circumstances to justify the court in letting it go to the jury, but its weight is to be determined by the jury.
    4. HOMICIDE — INSTRUCTION ON VOLUNTARY MANSLAUGHTER. — Evidence in a prosecution for murder by cutting, held not sufficient to warrant giving defendant’s requested instruction on voluntary manslaughter.
    • Appeal from Drew Circuit Court; Turner Butler, Judge;
    reversed.

      Patrick Henry, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   McHaney, J.

Appellant was indicted, charged with murder in the first degrefe for the killing of one Harold Robin, by stabbing and cutting him, from which he died a few hours later. On a trial he was convicted of murder in the second degree, and his punishment fixed by the jury at eighteen years in the penitentiary. The facts are substantially as follows:

A party of young people who were boarding with Mrs. Green, in Monticello, went out to the Nelson home, about six miles west of Monticello, on the Wilmar road, to attend a dance, at invitation of Miss Ouida Nelson. A number of them went on a truck. The deceased, with Gertrude and Willie Lassiter, went in a Ford sedan. Appellant, Ed Lane and Basil Boone-also attended this dance, without invitation from Miss Nelson, in a Ford roadster. After the dance was over, J. A. Stith, one of the parties on the truck, heard appellant cursing, thought he was referring to him, and they had a difficulty, in which Stith knocked appellant down, and about that time Boone stuck Stith with a knife. The parties on the truck started for home, and, when they had got a short distance down the road, appellant, Lane and Boone passed them in the roadster, and said something about getting them before they got to town. Up until that time the .deceased had had no difficulty with appellant or any of the others. As they drove on toward town the truck overtook the sedan in which Robin was riding with the two young ladies, who had stopped to repair a tire, or to change tires. The boys on the truck assisted Robin in repairing his tire, and, when he had started up, switched on his lights, they saw the Ford roadster stopped in the middle of the road, something like 40 or 50 feet ahead, on a culvert or narrow wooden bridge. According to the State’s testimony, when Robin drove up to the roadster, Lane was out of the car, and drew a shotgun' on Robin, and Stith says he jumped off the truck and asked Lane not to have any trouble, and that Lane drew the gun on him, which he grabbed, and a scuffle ensued over the gun. While they were tussling over the gun, Stith says Sanderlin ran around the car and stuck a knife in his arm, and that he turned the gun loose and ran something like 25 or 30 yards, crawled through the fence, and got behind a log, where he remained six or seven hours, until after daylight the next morning. He did not see appellant stab Robin.

J ack Fultz testified that, after Stith ran off, deceased was standing to his left, and that Lane and Boone were in front of him, and that it looked to him like appellant ran against Robin, who stepped back two or three steps, dropped to his knees, and that he asked Robin what was the matter with him, and he said “He cut me.” Fultz then put Robin in his car, and Handley brought him to town.

Witnesses were permitted to testify, over appellant’s objection, to statements made by deceased, in the nature of dying declarations, that Sanderlin had cut him, and it is urged that these statements were not made under a sense of impending death, and therefore inadmissible. We have examined the evidence very carefully on this assignment of error, and find that there was sufficient evidence to sustain the court in overruling appellant’s objection on the ground that the declarations were not made at a time when the deceased thought death was impending. Taking into consideration his expression, “If you don’t hurry up and get a doctor here, I am dying,” “You had better hurry up and get a doctor, I am dying,” and other testimony to the effect that he said he was dying, and was cnt all to pieces, together with the nature of the wound, which was a cut in the abdomen, from which his intestines protruded, and the fact that he died some seven or eight hours after the wound was inflicted, we think the court did not err in permitting the witnesses to say that deceased told them that Sanderlin had out him.

The most serious assignment of error, however, and the one we think calls for a reversal of this case, is the refusal of the court to instruct the jury, on appellant’s request, that, although the statements of the deceased, that appellant had cut him, had been admitted in evidence, still it was a question for the jury to determine what weight they should give such testimony, and, in determining this question, they should take into consideration whether the statements were made at a time when deceased had lost all hope of recovery. In Alford v. State, 161 Ark. 256, 255 S. W. 884, this court said:

“Dying declarations are admitted in evidence by the court upon a prima facie showing that they were made in extremis, but, notwithstanding their admission in evidence, it is still within the province of the jury trying the case to decide, from the whole evidence and all reasonable inferences therefrom, whether utterances were made under consciousness of impending death. It is error to take this question from the jury. ’ ’

And in the more recent case of Sullivan v. State, 163 Ark. 11, 258 S. W. 643, this court said:

.“Under this testimony and the instructions relating to it the jury might have found that Hay had not ■despaired of hope of recovery; but we do not think this finding was the only one warranted by the testimony. There was a question for the jury, and the testimony was submitted to the jury under proper instructions.”

The instructions referred to in this, case were not set out by the court, but, on an. examination of the instructions given, we find that the exact question now under consideration was submitted by the trial court to the jury, and they were told therein that, before they could give any consideration to the statement of the deceased as his dying- declaration, “it must be shown by the evidence that he was at the time fatally wounded, and made the declaration under apprehension of impending death without expectation or hope of recovery.” And they were further told that they must first decide whether the statements made as dying declarations were made under an apprehension of impending death. The instructions given in the Sullivan case are too lengthy to set out in full, but they received the approbation of this court in that case.

The rule therefore with reference to the admissibility of dying declarations is that, in the first instance, it is the duty of the court, on the showing made, to determine whether the declaration was made under such circumstances as to justify the court in letting them go to the jury under proper instructions as to the weight to be given them, and in this respect the court seems to have adopted the same rule applicable to the admissibility of confessions. That is, that the court, in determining the admissibility of a, confession, first determines the preliminary question as to whether it was freely and voluntarily made, and, having- admitted it, the jury should be instructed that, in determining’ what weight they should give to the confession, they should first determine whether the confession was made freely and voluntarily. As was said in the case of Spurgeon v. State, 160 Ark. 112, 254 S. W. 376:

“Now, the court refused to exclude this confession from the jury, but submitted it to the jury upon instructions as favorable as the defendant could ask for, and left it to the jury to determine whether or not the confession was free and voluntary.”

We are therefore of the opinion that the court erred in refusing- to submit this question to the jury, as requested in instructions G and IT, or some similar instructions which have heretofore met with the approval of this court.

Other questions are raised in brief of counsel for appellant, including the refusal of the court to instruct the jury on voluntary manslaughter. We will not enter upon an extended discussion of this assignment, or any others, as they may not arise on another trial. Suffice it to say that we do not think there was sufficient testimony in this record on which to base instruction on voluntary manslaughter. For the error indicated the judgment will be reversed, and the cause remanded for a new trial.


author: Hart, C. J.

text:
    Campbell v. High.
    Opinion delivered February 13, 1928.
    Counties — contract for construction of courthouse. — In a taxpayers’ suit to enjoin the county judge and the courthouse commissioners from proceeding under contract for the construction of -a courthouse, the contract having -been let pursuant to statute, held that the contract was valid and binding in the absence of fraud or collusion between the commissioners and the contractor, as - against the taxpayers’ contention that the building could be erected for less money.
    Appeal from Lonoke Chancery Court; Frank H. Bodge, Chancellor;
    affirmed.

      Coleman & Riddick and Pat L. Robinson, for appellant.

      Buzbee, Pugh & Harrison and Charles A. Walls, for appellee.
   Hart, C. J.

Appellants, as taxpayers of Lonoke County, brought this suit in equity against E. M. High, as county judge of said county, and certain other persons as courthouse commissioners, to enjoin them from proceeding further in the erection of a courthouse and in the issuance of warrants for the payment thereof. The chancery court found the issues in favor of the defendants, and the case is here on appeal.

In Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, it was held that a provision of Constitutional Amendment No. 11, that no county court or other county agent shall make any contract in excess of the revenue from all sources during the fiscal year in which the contract is made, does not forbid contracting for courthouses unless the total cost of construction can be paid out of the revenue of a single year, if payments can be so arranged that the total expenditure of the year shall not exceed its revenues. This holding was reaffirmed in the later cases of Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006, and Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554.

It is conceded by counsel for the plaintiffs that all the issues raised by the complaint, except one, are settled against them by the decision in the cases just cited. We have examined the complaint, and find that all th<^ issues raised except one have been decided adversely to plaintiffs in these cases, and no useful purpose could be served by restating the issues and again giving our reasons for so holding.

The main reliance for reversal of the decree is that the court erred in not sustaining the following allegation of the complaint:

“Third. That the consideration provided for by the contract was fraudulently fixed at an exorbitant amount to include carrying charges or interest, because of the fact that the consideration is to be paid in warrants maturing in the future over a number of years, instead of in cash. That said contract calls for the payment of $199,500, but that the cost of said courthouse and jail, if paid for in cash, would not exceed the sum of $150,000.”

The answer of defendants denies that there was any fraud or collusion entered into between them and the contractor for the construction of the courthouse. They aver that they let the contract at public auction, pursuant to the provisions of the statute, to the lowest bidder, and that the Herman & McCain Construction Company was the lowest bidder of five contractors who submitted bids. The defendants let the contract for the construction of the courthouse to said construction company, and said construction company proceeded in good faith to comply with their contract for the erection of said courthouse-.

In Stone v. Mayo, 135 Ark. 130, 204 S. W. 752, it was held that, where a contract to build a county courthouse was let to the lowest bidder and there was no evidence of fraud or collusion between the contractor and the courthouse commissioners, there was a valid and binding-contract between the parties. In discussing the principles of law governing cases of this sort, the court said:

“That case controls this. Here was a straight contract for the construction of the courthouse for $91,-806.90. There was no evidence of any collusion among -the bidders to perpetrate a fraud on the court to have the contract let at a hig’her price because of the depreciated value of the county warrants, nor is there any testimony to warrant the conclusion that the county court entered into a collusion with the contractor to give him the contract at an increased price because the value of the county scrip was less than par. The fact that the bidders made inquiry and ascertained that the value of the county warrants was less than par and made their bid with such knowledge does not establish that there was a collusion between them to- stifle- the bidding- and to defraud the court by securing a contract at a higher price on account of the depreciated value of the county warrants. There is no -allegation that the county -court, or its commissioner, or the bidder, in securing the contract, were guilty of fraud.”

The principles of law announced in that case must govern the present one, there being no proof of fraud or collusion between the commissioners and the contractor. The decree was therefore correct, and will be affirmed.


author: Hart, C. J.,

text:
    Hardin v. Tucker.
    Opinion delivered February 13, 1928.
    1. Tenants in common — possession op one tenant. — The possession of one tenant in common is prima facie the possession of all, and the sole enjoyment of rents and profits by him does not necessarily amount to a disseizin.
    2. Tenants in common — when possession op tenant adverse.— For the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed.
    3. Tenants in common — evidence of adverse possession. — Where defendants, owning the record title to a five-ninths interest in land as tenants in common, knew that a tenant in common therein had conveyed his interest to plaintiff and permitted the land to forfeit for taxes in 1908 and knew that plaintiff went into possession in 1909, but made no effort’ to redeem the land from tax sale, and asserted no right thereto until suit was brought in 1926, a finding that plaintiff acquired title by adverse possession was authorized.
    Appeal from. Benton Chancery Court; Lee Seamster, Chancellor;
    affirmed.
    statement oe facts.
    Appellee brought this suit in equity against the • appellants to quiet title to 102 acres of land in Benton County, Arkansas. The appéllants defended the suit on the ground that they were tenants in common with appellees in the land.
    The record shows that J. R. Hardin died intestate, owning the land, in May, 1901. He left surviving him his widow and three children as his only heirs at law. Minnie Lowery, one of these children, conveyed by deed her one-ninth interest in said land to the appellee in November, 1909. About the same time F. M. Hardin, a son of one of the children, who had obtained title to a one-third interest in the land from his mother, conveyed his interest to the appellee. This gave appellee the record title to a four-ninths interest in the land in Novembér, 1909, and appellants had the record title to the remaining five-ninths interest. Appellee went into possession of the land, and has held possession of it ever .since, paying the taxes on it and claiming it as his own. The land was forfeited to the State in 1908 for the nonpayment of taxes, and in June, 1926, appellee secured a redemption deed from the State to the said land.
    The land was very hilly, and had hut little commercial value. Yery little of it was cleared and in cultivation. Of late years a bathing beach has been established on it by the appellee. Appellee also placed improvements on the land, consisting of a barn and two rooms to the dwelling house, of the aggregate value of $500.
    Andrew Hardin, seventy-two years of age, was one of the appellants, and a witness for them. According to his testimony, his father died in 1901, leaving his widow and three children. After their father’s death, F. M.' Hardin, a grandchild, was permitted to take possession of the land and manage it for the purpose of helping to support his grandmother. The mother of F. M. Hardin conveyed to him her undivided one-third interest in the land.
    The chancellor made an express finding of fact to the effect that the appellee had been in the actual and adverse possession of said land for more than seven years, and had obtained title thereto by adverse possession. It was therefore decreed that title to the land should be vested absolutely in appellee, and divested out of appellants. To reverse that decree appellants have duly prosecuted an appeal to this court.

      John D. DeBois, for appellant.

      Appellee pro se.

   Hart, C. J.,

(after stating the facts). In Singer v. Naron, 99 Ark. 446, 138 S. W. 958, it was held that, in order for the possession of a tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed. The reason is that the possession of one tenant in common is prima facie the possession of all, and the sole enjoyment of rents and profits by him does not necessarily amount to a disseizin. Hence, ■for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed. Oliver v. Howie, 170 Ark. 758, 281 S. W. 17, and Bowers v. Rightsell, 173 Ark. 788, 294 S. W. 21. Tested by this well-settled principle of law, we do not think it can be said that the finding of the chancellor is against the preponderance of the evidence.

The record shows that J. R. Hardin died owning the land, leaving his widow and three children. By some sort of family arrangement, a grandson of J. R. Hardin was put in possession of the land in order to help support his grandmother. He lived with her and supported her, so far as the record discloses, until she died, a few years thereafter. His mother, who owned a one-third interest in the land, conveyed her interest to him, and a child of a sister of his mother conveyed her one-ninth interest to him, so that he became the owner of a four-ninths interest. After his mother died he conveyed his interest to the appellee. None of the other heirs paid any part of the taxes on the land or asserted ownership in it in any way. They' knew that their mother had died and that there was no occasion for the grandson to longer remain in the possession of the land for her benefit. They permitted the land to forfeit for taxes in 1908, after their mother had died. Appellee went into possession of the land in November, 1909, and claimed it as his own until this suit was brought,.in June, 1926. During all this time appellants made no effort to redeem the land from the tax sale or to assert any rights in it. It is inferable from the record that they knew that F. M. Hardin had conveyed the land to some one, and that his grantee was in possession of it. Under these .circumstances we think the chancellor was justified in finding as a fact. that appellee had acquired title to the land by adverse possession.

The decree will therefore be affirmed.


text:
    Planters’ National Bank v. Lawrence County Bank.
    Opinion delivered February 13, 1928.
    1. Insurance — assignability of policy. — The right oí action on a fire insurance policy is assignable under the statute.
    2. Insurance — effect of assignment of insured’s interest. — An assignment purporting to assign the interest of insured as owner of insured property, subject to the consent of the insurer, made after the property was destroyed by fire, held to be an assignment by insured of his right of action against the insurer, regardless of the insurer’s consent, and the assignee was entitled to the proceeds paid into the registry of court, as against a creditor of the insured afterwards bringing garnishment proceedings against the insurer.
    Appeal from Lawrence Chancery Court, Eastern District; A. S. Irby, Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    It is conceded that the sole issue raised by this appeal is as to' whether the appellant or appellees are entitled to the proceeds of an insurance policy for $1,000 paid into the registry of the court for Charles Jones, a debtor of appellant and appellees.
    The property insured by Charles Jones was destroyed by fire on November 17,1926, and the insurance company was subsequently garnished by appellees as creditors of Charles Jones. Appellant also claimed the proceeds of the policy by assignment dated November 20, 1926, which reads as follows:
    ‘ ‘ Assignment of interest of insured. The interest of Charles Jones, as owner of the property covered by this policy, is hereby assigned to Planters’ National Bank, subject to the consent of Home Fire Insurance Company of Little Rock, Arkansas. (Signed) Chas. Jones (Signature of insured). Dated November 20, 1926.”
    The insurance company paid the $1,000 due on the fire insurance policy into the registry of the court, to be paid out as the court .should direct. The chancery court found the issue in favor of the appellees, and it was decreed that the proceeds of the policy should be paid to them. To reverse that decree the appellant has duly prosecuted an appeal to this court.

      Cunningham & Cunningham, for appellant.

      G. M. Gibson, for appellee.
   Hart, C. J.

We think the decision of the chancellor was wrong*. He evidently proceeded upon the theory that the instrument copied in our statement of facts did not amount to an assignment of a right of action on the policy. This court has held that the right of action on an insurance policy is assignable under orir statute, and that a clause in the policy against assignment without consent of the company applies only to assignments during the lifetime of the policy, and not to an assignment of liability which has already accrued under the policy. McBride v. Ætna Life Insurance Co., 126 Ark. 528, 191 S. W. 5, and Garetson-Greason Limber Co. v. Home Life & Accident Co., 131 Ark. 525, 199 S. W. 547. To the same effect see Mosaic Templars of America v. Mearon, 153 Ark. 568, 241 S. W. 35, 27 A. L. R. 1147, where it was held that, unless a contract of insurance contains a restriction concerning assignments, an insurance policy may ordinarily be assigned in any form recognized by law, even by oral assignment.

After the property insured was destroyed by fire, the assignment of the interest of the insured copied in our statement of facts was made. This was done before the garnishment of the company in favor of the appellee. The instrument purports to assign the interest of Charles Jones as owner of the property covered by the policy, subject to the consent of the insurance company. When we consider that this was done after the property had been destroyed, it is reasonable to construe the instrument as an assignment by the insured of his right of action against the insurance company, and we are of the opinion that the chancery court erred in not SO' holding.

The decree will therefore be reversed, and the cause will be remanded with directions to the chancery court to enter a decree in favor of the appellant.


author: Smith, J.

text:
    Gordon v. Kansas City Southern Railway Company.
    Opinion delivered February 13, 1928.
    Carriers — time for use of limited ticket. — As ¡between a provision of a railroad ticket covering an interstate trip that it will not be accepted if presented after a certain day, and the provision of the tariff sheet, approved by the Interstate Commerce Commission, that the return trip must be completed before midnight of such day, the limitation in the tariff sheet governs.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Pole McPhetrige, for appellant.

      James B. McDonough, for appellee.
   Smith, J.

On December 22, 1926, appellant purchased a full-fare round-tri'p ticket for herself and a half-fare round-trip . ticket for he¡r granddaughter at Mena, Arkansas, from that station to Kansas City, Missouri, ' and return. The usual one-way full fare was $13.66, and the round-trip full fare, was $27.32. The tickets purchased by appellant were excursion 'tickets, and the price paid for her own ticket was $20.49, a reduction from the full regular fare of $6.83. Stamped on both tickets was this condition:

“In consideration of the reduced rate at which this ticket is sold, it will not be accepted for passage if presented after 1-6-1927. ’ ’

At the time these tickets were .sold there had been filed with and approved by the Interstate Commerce Commission tariff sheets regulating Christmas excursion tickets, and a copy of these tariff sheets was on file in the office of the ticket agent who . sold the tickets. These tariff sheets contained the following limitation upon the sale of these excursion tickets: “Dates of sale— December 21 to 25, inclusive, 1926. Final return limit — • January 6,1927. Transit limit — Going—’Tickets must be used from selling station on date of sale, as stamped or perforated on ticket. Return trip — Return trip must be completed to original starting point before midnight of date of final limit.”

Appellant went to Kansas City, where she visited her nephew and niece, and remained until January 6, 1927, at which time she presented her ticket and that of her gnanddaughter to the gateman at the Union Station for admission as passengers to a train of appellee railway company which was - due to leave Kansas City at 11:35 p.m. Admission to the train was denied appellant upon the ground that the tickets would expire in twenty-' five minutes after the departure of the train, and the journey which appellant proposed to make could not be completed within that time; indeed, the train was not due to arrive at Mena, appellant’s destination, until the following afternoon. There was no station at which the train would have stopped in twenty-five minutes, and appellant does not contend that she desired to use the tickets for that period of time. Her contention is that she presented the ticket before its expiration, and that she was therefore entitled to be transported as a passenger on the ticket.

When appellant was denied the right to enter the train and become a passenger, she borrowed from her nephew, who had escorted her to the station, money to pay her fare and that of her granddaughter to her destination. After paying the full regular fare of herself and her granddaughter, she surrendered the return portions of her excursion tickets to the train auditor, and later received from the railway company $10.60 as rebate.

Appellant sued for damages for a breach of the contract of carriage, and offered testimony to the effect that, as a result of the humiliation and chagrin endured by her when her ticket was refused, she suffered a nervous breakdown. Suit was not brought on account of the grandchild’. At the conclusion of the testimony the court directed the jury to return a verdict for the defendant railway company, which was done, and from the judgment pronounced thereon is this appeal.

The question presented by this appeal is whether the stipulation above quoted appearing on the ticket or the limitation as to the period of its validity appearing in the tariff sheets shall govern. As the ticket covered an interstate trip, the tariff approved- by the Interstate Commerce Commission must govern. L. & N. Ry. Co. v. Motley, 219 U. S. 467, 31 S. Ct. 265, 55 L. ed. 297, 34 L. R. A. (N. S.) 671.

The tariff sheet required the completion of the trip to be accomplished not later than January 6, and, as has been shown, it would hardly have been begun by that time, and appellant asked nothing less than that she be carried to her destination, which- she could not have reached until the following afternoon.

In 10 C. J., chapter Carriers, $ 1080, page 662, it is said:

“Under the Interstate Commerce Act a carrier must publish passenger rates, and cannot charge a less or a different rate than that specified in its published rates, unless such rate is found to be unreasonable by the Interstate Commerce Commission, and neither the misquotation of rates nor ignorance is an excuse for charging or paying less or more than the filed rates, since passengers, as well as the agents of the carrier, are presumed to know such rates. ’ ’

In the case of Sanders v. Atlantic Coast Line R. Co., 85 S. E. 167, 101 S. C. 11, the Supreme Court of South Carolina said:

“It is well settled, too, that, under the act of Congress and the decisions of the Supreme Court of the United States construing it, no liability of a carrier can be predicated upon the misrepresentations or mistakes of its agents as to the rates applicable, or privileges or facilities to be afforded under the tariffs filed with the Commission. Passengers and shippers are conclusively presumed to know them, as well as the agents of the carriers. This question has been so recently and frequently considered and decided both by the Supreme Court of the United States and by this court that it is not deemed necessary to state the reasons therefor, or even to cite the decisions. ”

In the case of St. Louis, I. M. & S. Ry. Co. v. Wolf, 100 Ark. 22, 139 S. W. 536, Ann. Cas. 19130, 1384, it was held (to quote the syllabus): “Interstate commerce— Effect of mistake as to rate. — '"Where a railway agent, by mistake, inserted in a bill of lading for an interstate shipment a rate less than the published rate, the railroad company is not bound thereby; and it is immaterial in such case that the shipper and the agent were both ignorant of the published rate. ’ ’

In that case this court quoted from Barnes on Interstate Transportation, § 446, -as follows: “Under the present law, regardless of the rate quoted, the published tariff rate must be paid by the shipper and actually collected by the carrier.” The reason given by the author for this apparently harsh rule is that the integrity of the published tariff must be preserved to prevent discrimination, and that, if it were otherwise, the published tariffs, through collusion or carelessness, would be constantly violated.

See also Pennington v. Illinois C. Ry. Co., 252 Ill. 584, 97 N. E. 289, 37 L. R. A. (N. S.) 983; Samples v. Georgia & F. Ry. Co., 143 Ga. 805, 85 S. E. 1002; Sherman v. Chicago, etc., Ry. Co., 40 Iowa 45.

It follows therefore that the limitation in the tariff sheet must govern, and not that stamped upon the ticket, and, as appellant did not use the ticket within the time limited by the tariff sheet, the railway company had the right to refuse to accept it and to collect the fare, as was done, and the .judgment of -the court directing a verdict in favor of the railway company must therefore be affirmed, and it is so ordered.


text:
    Peerless Casualty Company v. Daniel.
    Opinion delivered February 13, 1928.
    1. Insurance — notice o<e disability. — In an action on a disability -and illness insurance policy, evidence held to warrant the jury’s finding that insured gave notice within ten days of the time when he had reasonably concluded that his disability from sickness had begun under the policy, as required by its provisions.

      2. Insurance — reinstatement—appearance op good health. — In an action on a disability policy in which the insurer denied liability on the ground that insured was not in good health at the time of his reinstatement in June, 1925, it was not error to admit evidence that insured appeared to be in good health in May, 1925.
    Appeal from. Saline Circnit Court; Thomas E. Toler, Judge;
    affirmed.

      Browse & McDaniel, for appellant.

      A. C. Thomas and W. R. Donham, for appellee.
   Smith, J.

Appellee, as administratrix of the estate of John W. Daniel, deceased, and in her own right, filed suit against the appellant insurance company to recover a sum alleged to be due by reason of a contract contained in a certain insurance policy issued by the said company to the said John W. Daniel in his lifetime, wherein the company agreed to insure the said Daniel against loss of time on account of disability from illness in the sum of $50 per month.

The policy contained the provision that: “Written notice of injury or of sickness on which claim may .be based must be given to the company within twenty days after the date of the accident causing such injury, or within ten days after the commencement of disability from such sickness.” Another provision of the policy required strict compliance with all the terms and conditions of the policy as a condition precedent to a recovery thereunder, and provided that a failure in this respect should forfeit to the company all rights to any indemnity.

The insured had failed to pay certain assessments or premiums, as a result of which the policy lapsed, but he was reinstated in June, 1925, by paying the delinquent premiums and by furnishing a certificate that he was in good health at the time of his reinstatement. •

The insurance company denied 'liability upon the grounds that notice.’ of disability had not been given within the time required 'by the policy, and also that the insured was not in good health at the time of his reinstatement.

There was a verdict and judgment in favor of the plaintiff, from which is this appeal, and for the reversal of the judgment it is insisted that, under the undisputed testimony, a verdict should have been directed in appellant’s favor on account of the failure to give notice, and also because the insured was not in good health, as he had warranted himself to be, at the time of his reinstatement. It is also insisted that the judgment should at least be reversed on account .of the admission of certain incompetent.testimony, and because of the error in submitting the question as to whether the insurance company had waived the requirement of notice as to the insured’s illness.

It was contended by the plaintiff that proper notice of the insured’s illness had been given, and also that there had been a waiver of this requirement as a result of the correspondence between the parties in regard to proof of the claim for the sick benefits. As we have concluded that the jury was warranted in finding that proper notice was given, we do not consider whether the testimony did not also warrant the finding that this requirement had been waived.

The testimony on the part of the plaintiff was to the effect that the insured operated a small store, and, in connection with this business, ran a truck from his store to both Hot Springs and Little Rock, from both of which cities he hauled the merchandise in his truck which he sold in his store. Insured became ill about the 4th of July, 1925, but evidently did not regard his illness as serious until about the 27th of that month, at which time he first consulted a doctor. The doctor advised the insured to rest from his usual employment for a period of ten days, and later renewed that advice. The insured was not confined to his bed until the 15th of August, and, even after that, went to his store, over which he continued to exercise supervision. Mrs. Daniel testified that her husband, the insured, “finally took his bed and was confined to his room about the last of September, some time* in September, when he became worse and was not able to g*o to the store. He was not able to work after that. He went to bed on the rest cure about August 15.”

The court gave, at the request of the appellant insurance company, an instruction which told the jury that the plaintiff could not recover if the jury found that the insured was not in good health or was suffering from any ailment in June, 1925, when the insurance was reinstated.

The jury was told, in another instruction, at the request of appellant, that, before the plaintiff could recover,, it must be found by a preponderance of the evidence ‘ ‘ that all of the material terms of said contract were complied with by the deceased, and, unless you find from a greater weight or preponderance of the testimony in this case that deceased did comply with the terms of the contract, then the plaintiff cannot recover, and your verdict will be for the defendant company. ’ ’

Written notice of the illness of the insured was mailed to the insurance company on September 14, 1925,- and the illness of the insured continued until September 23, 1926, at which time he died.

The insuring clause of the policy contains the following relevant provisions as to the obligations assumed by the insurer:

‘ ‘ Section (B). Disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in continuous force for fifteen days from its date, hereinafter referred to as ‘such illness,’ and
“Section (C). Indemnity will be paid for ‘such injury’ or ‘such illness’ only for the time the insured is under the professional care and- regular attendance of a legally qualified physician or surgeon, at least once in every seven days.”

The insured, when he first became ill, was not under • the care of a physician at least once in every seven days, and he did not go under such care until in September, and he gave the notice within ten days of the time when he did so go under the regular care of a physician every seven days. The testimony shows that, while the insured did not run his truck after the 15th day of August, he was up and occasionally at his store until September.

The policy provides for indemnity against disability, and no indemnity was to be paid until disability began, and the insured claimed no indemnity until he asserted his disability, and we think the jury had the right to find, from the above testimony, that the insured gave the notice within ten days of the time when he had reasonably concluded that his disability had begun. The insurance was not against sickness merely, but against disability caused by sickness, and we conclude therefore that the jury was warranted in finding that due notice of the disability was given. It is not questioned that the insured was in fact -disabled by sickness during the entire period for which the disability benefit was claimed.

Plaintiff offered testimony to the effect that the insured was in good health when the policy here sued on- was reinstated, in June, 1925, and among the witnesses so testifying were L. C. Smith and W. J. Canady, and it is insisted that error was committed in admitting the testimony of these two witnesses.

Smith testified that he was a soliciting agent for the Missouri State Life Insurance Company, and that he took an application from the said J. W. Daniel for' a policy of insurance in that company in May, 1925. The witness was asked: “You remember that it was in May, 1925, that you took the application?” An objection to this question was overruled, and the witness answered: “Yes, the policy was issued, it seems to me, something like a week after I took the application. ’ ’ The witness was then asked: “So far as you were able to tell, at that time Daniel was in good health, was he not?” An objection to this question was overruled, and the witness answered: “He seemed to be in as good health as any man I ever took an application from. ’ ’

The witness Canady testified that he, too, was a soliciting ag’ent for an insurance company, and that he took an application from Daniel on May 15, 192-5, for a policy, which was delivered on June 1¿ 1925, and that Daniel appeared to be in good health at that time, and that witness “had to beg him about two weeks to take the policy.”

No objection appears to have been made to the questions asked Canady or to the answers given by him, and the questions asked the witness Smith appear to be competent. It was competent for any witness who knew the insured at the time of his reinstatement to testify that the insured appeared then to be in good health, and the incident related by the witness about taking the application of Daniel in May, 1925, is a mere circumstance fixing the time at which the applicant appeared to be in good health. No objection was made to the testimony upon the ground that it would not be competent to prove that the insured was in good health by proving that another insurance company had issued a policy about the time of the reinstatement. The court would, no doubt, have instructed the jury that the testimony was not competent for that purpose had such a request been made, but it was not.

The testimony warranted the jury in finding that a proper notice of disability was given, and, as no error appears in the record, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Marley v. Hackler.
    Opinion delivered February 13, 1928.
    1. Principal and agent — authority of agent. — The power of attorney iby which a widow authorized another to transact all business for her and in her name to execute and acknowledge conveyances and to sign all contracts, checks, drafts, or other instruments, held, under the evidence, intended only to enable the attorney to wind up the estate of the widow’s decedent.
    2. Partnership. — construction of written intrument. — Whether a written instrument is a rental contract or a contract of partnership should be determined by the language of the instrument, unless it is susceptible of more than One interpretation, in which case parol evidence or the conduct of the parties under it may be resorted to in determining the intention.
    3. Contracts — construction- against party preparing contract.— In construing a written instrument it should be interpreted more strongly against the party who prepared it.
    4. Partnership — -construction of instrument, — An instrument designated a lease in the opening declaration whereby a party thereto agreed to manage and- operate plaintiff’s plantation and to be responsible therefor, and provided that the parties should share equally the profits derived therefrom, held unambiguous and to create the relationship of landlord and tenant, and not that of a partnership or a share-cropper contract.
    5. Partnership — division op profits. — A division of profits growing out of the business does not necessarily imply a partnership arangement, since such division is often made a basis of salary for business or rents for property.
    Appeal from Crittenden Chancery -Court; J. M. Futrell, Chancellor;
    affirmed.

      A. B. Shafer and Coleman & Riddick, for appellant.

      Allen Hughes and John E. McCall, for appellee.
   Humphreys, J.

This is an appeal from a decree in favor of appellee against Eva A. Marley, special administratrix of the estate of F. N. Marley, deceased, for $35,160.90, and against Rufus Armistead, special administrator of the estate -of K. R. Armistead, for $23,954.41, rendered in a suit brought in the chancery court of Crittenden County by- -appellee against F. N. Marley, for an accounting of rents on her plantation in said county, known as the Perryland Plantation, for a term beginning January 1, 1920, and ending December 31, 1925, and for $52,145.20 in cash to her. -credit with K. R. Armistead & Company, and for an accounting with K. R. Armistead for the amount of $52,145.20 in cash to her credit with said company.

The defense interposed by F. N. Marley to the suit was that the plantation was operated under1 a sharecrop agreement for a five-year period at a loss instead of a profit, and that the funds to her'credit in her account with K. R. Armistead & Company were checked out under authority contained in a power of attorney, executed by her to him, in the operation and improvement of said plantation.

The defense interposed by' K. R. Armistead to the suit was that he paid out the funds to appellee’s credit with his company on checks drawn against it by F. N. Marley, under authority contained in the power of attorney given by her to F. N. Marley. The power of attorney referred to is as follows:

“power op attorney.
“I, Annie M. Hackler, widow, of Crittenden County, Arkansas, do hereby nominate and appoint F. N. Marley, of Memphis, Tennessee, as my true and lawful attorney in fact^with full power and authority to transact .'«"'all business for me, and in my name to execute and acknowledge deeds or other conveyances, and to sign all contracts, checks, drafts or other instruments, it being my purpose and intention by this instrument to give him a general power of attorney to transact all business of every kind for mevand I hereby ratify and confirm all his acts and deeds in the premises as fully as if I were present and doing the same in my own hand.
her
(Signed) “Annie M. X Hackler.
mark
“Witness: K. R. Armistead,
“Rufus Armistead.”

Acknowledged before notary public.

The agreement with reference to the operation of the plantation is as follows:

“agreement.
“This lease agreement this day made and entered into by and between Mrs. Annie M. Hackler and F. N. Marley, witnesseth:
“1. The undersigned, Annie M. Hackler, leases to the said'F. N. Marley her plantation at Bruin, Crittenden County, Arkansas, known as the Perryland Plantation, containing about 600 acres, for the term beginning January 1, 1920, and ending December 31, 1925. Also all the live stock and farming implements of all kinds on said plantation belonging to her and used in operating the same.
“2. The undersigned, F. N. Marley, on his part, agrees to manage and operate said plantation during the term of this agreement, devoting so much of his time thereto as may be necessary; and shall be responsible for the proper management and operation of same.
“3. The undersigned, Annie M. Hackler and F. N. Marley, are to share equally the profits derived from the operations of said plantation during the term of this lease.
“Executed in duplicate this September 24, 1919.
her
(Signed) “Annie M. X Hackler.
mark
“F. N. Marley.
“Witness: M. C. Ketchum, A. W. Ketchum.”

Appellants contend for a reversal of the decree upon the theory that the power of attorney conferred authority upon F. N. Marley to check on the account of Mrs. Annie M. Hackler with K. R. Armistead & 'Company and on deposit in the Bank of Commerce & Trust Company in Memphis for unlimited amounts to operate the plantation which she owned in Crittenden County, Arkansas, under and by virtue of the written agreement set out above, and that the money that Mrs. Annie M. Hackler had on deposit with Armistead & Company and with the trust company, as well as the proceeds derived from the sale of the crops of 1919 and for the five-year period under the agreement, was used for that purpose, except about $6,100. In other words, appellants interpret the agreement relative to the operation of the plantation to be a sharecropper’s or partnership agreement, by the terms of which Mrs. Hackler should furnish the land, the live stock, farming implements, and money with which ■to operate same, and Marley to direct the operation thereof, for which each was to receive one-half of the profits derived therefrom

The chancery court found that the power of attorney was executed to enable F. N. Marley to efficiently administer upon the estate of J. P. Hackler, deceased, with knowledge by K. B». Armistead and his son, Rufus Armistead, of its purpose; and that, when the purpose was accomplished, it had no further force and effect. To state it more directly, the chancery court found that the power of attorney did not confer upon F. N. Marley authority to check out the moneys of Mrs. Annie M. Hackler on deposit with K. R. Armistead & Company and in the trust company in the operation of the plantation, and that K. R. Armistead and Rufus Armistead knew that it was not executed for that purpose. The chancery court also construed the written agreement relative to the operation of the plantation as a rental contract, creating the relationship of landlord and tenant, by the terms of which Mr®. Annie M. Hackler was to furnish the plantation, the live stock and farming implements thereon, and to receive one-half the profits derived therefrom as rents.

The record is voluminous, and it would extend this opinion to unusual length should an attempt be made to set the testimony out in detail. For this reason only a general statement of the facts will be attempted.

J. P. Hackler was a planter, who owned and operated Perryland Plantation, consisting of 850 acres, in Crittenden County, Arkansas, at the time of his death, on June 5, 1919. He had resided upon the plantation forty years -with his wife, Annie M. Hackler. For twenty-five years prior tb' his death he had sold his cotton to and purchased his supplies from K. R. Armistead & Company, merchants and cotton factors in Memphis, and also carried his banking account with them. F. N. Marley was a son-in-law of K. R. Armistead, and the bookkeeper for his firm at and during the time Hackler did business with the firm. During the business transactions Mr. and Mrs. Hackler became well acquainted with the. families of Armistead and Marley, resulting in an association of mutual confidence, respect and esteem. The families visited each other and visited .other cities together. Hackler had prospered until he was able to carry over his cotton crop of 1917 and 1918, and, when sold, just prior to his death, he had a cash balance with Armistead & Company of $38,000. Hackler made a will by the terms of which his entire estate was devised to his wife, Annie M. Hackler, with direction that.she be appointed executrix without bond, and left the will with K. R. Armistead. Hackler then went into the hospital for the purpose of being operated upon. While waiting for the operation K. R. Armistead, his son, Rufus Armistead, and Marley visited him. The day before the operation he .asked all the parties to leave the room, except his wife and Marley. He then stated that he expected to recover from the operation, but requested Marley, in the event of his death, to assist his wife, which Marley agreed to do. He died from the operation on the next day. After his burial the will was opened by Marley and read to Mrs. Hackler, who could not read or write, at the residence of a Mr. Carlos, where Mrs. Hackler was stopping, in Memphis. The following day Mrs. Haclder and a friend went to the Peabody Hotel and had them telephone Marley that they wanted to see him. When he arrived, she stated that she wanted to pay off the debts, which amounted to little, and wind up the estate, but that she did not want to act as executrix. She requested Marley to attend to the details of winding up the estate, which he agreed to do. In order to attend to the details of the estate for the ' executrix, Marley suggested that, as she would be out on the plantation, it would facilitate matters for her to give him a power of attorney to act in her behalf. She inquired of him about an attorney, and Marley suggested M. C. Ketchum, K. R. Armistead’s attorney. The suggestion met with her approval, so Marley procured Ketchum to draw the power of attorney and take charge of ‘the legal features of probating the will and administering upon the estate. The following day Mrs. Marley took Mrs. ' Hackler to the office of K. R. Armistead, where she met Mr. Ketchum, who had drawn the power of attorney.

According to the testimony of Marley, when first examined, he and K. R. Armistead had talked over the necessity and purpose of a power of attorney to wind up the estate. Marley later testified that he was mistaken about discussing the matter of the preparation of a power of attorney with K. R. Armistead. K. R. Armistead also testified that the matter was not discussed between Marley and himself before the execution thereof. After the power of attorney was read, Mrs. Hackler signed it by mark, which signature was witnessed, at the suggestion of Marley, by K. R. Armistead and his son, Rufus. Mrs. Hackler employed Everett Marley, the son of P. N. Marley, at his suggestion, to assist her in gathering the crop of 1919, which was shipped to Armistead & Company. He continued in her employ until January, 1920. In the meantime F. N. Marley, under the power of attorney, performed all the acts necessary to a complete administration of the estate, and, after collecting the assets and paying the obligations, he informed Mrs. Hackler that everything had been done except selling the plantation. Just before the operation, J. P. Hackler had suggested, that the plantation be sold and a home purchaséd for or by his wife in Memphis. Mrs. Hackler preferred to reside upon the plantation instead of selling same, and, according to Marley, requested him to manage it for her. According to Mrs. Hackler, Marley proposed to rent the plantation from her. After talking the matter over several times they entered into the written agreement heretofore set out, on the 24th day of September, 1919, but Marley did not enter into the possession and control thereof until January 1, 1920. Before entering into the possession of the plantation, Marley transferred the account at K. R. Armistead & Company to Annie M. Hackler.. He also transferred the account of J. P. Hackler, of about $8,000, in the Commerce & Trust Company to Annie M. Hackler. He also collected about $4,000 life insurance and placed it in the Annie M. Hack- • ler account at K. R. Armistead & Company. When Marley took possession of the plantation, he employed his son to assist him. His son remained on the place until 1924. Marley took an inventory of the stock in the plantation store, and opened a set of books, which was kept by him and his son on the basis of a partnership during the entire term of the agreement. The business was run under the name of Perryland Plantation. The names of P. N. Marley and Annie M. Hackler appeared on the letterheads. Marley transferred all the money in both accounts, about $52,000 in all, to the Perryland Plantation, and, during the five-year period, expended all that was produced on the plantation and all the money in Mrs. Hackler’s accounts, except $6,100, in the operation thereof, according to his testimony. Mrs. Hackler knew nothing of the manner in which the 'books were kept, and did not participate in the management of the plantation. It was managed and controlled by Marley and his son without consultation with Mrs. Hackler. According to her testimony, she had no information that Marley had used her money' in the operation of the plantation or otherwise until the fall of 1924. He did not make her an annual statement. She testified that she asked him how they had come out, and he always told her that she had come out all right. She said that she had absolute confidence in Marley and Armistead, and trusted them implicitly. She testified that, in the fall of 1921, she observed that a great deal of money was being spent, and heard that Marley had mortgaged her plantation, and that she asked him if he had done so, and he told her no. When pressed with reference to her dissatisfaction on account of the extravagant expenditure of money in 1921, and whether she discovered at that time that Marley was checking out her money, she said “no”; that she had reference to the expenditure of money which she supposed bad been made in the operation of the plantation. She said further that she knew Marley had expended some of her money in the construction of some houses on the plantation, but had no idea he had used any of it in the operation of the plantation. She said she thought the money expended in the operation of the farm had been made on the farm and out of the plantation store.

Marley and Armistead both testified, that Mrs. Hackler ’s individual money was cheeked out and used in the operation of the plantation under the authority contained in the power of attorney. In the fall of 1924 Marley wanted to rent the plantation for cash rent, but Mrs. Hackler concluded to sell same, and asked him for a statement. The statement disclosed that all of her individual money had been checked out except about $6,000.

As we understand, no question is raised on appeal as to the amount of the judgments appellee is entitled to recover under the facts- and law. Appellant challenged the right of appellee- to recover any amount. Her right to recover depends upon the effect given the power of attorney and the interpretation placed upon the written agreement.

After a very careful reading' and consideration of the testimony, we are of opinion that the power of attorney was executed for the purpose only of enabling P. N. Marley to wind up the estate of J. P. Hackler, deceased. The language is broad, and confers general power upon Marley to transact all business of every kind for her, but, as between the parties to this suit, it only had reference to the business in hand at the time of its execution. The only business in hand at that time was the winding up of the estate of Hackler. The power of attorney was suggested by Marley, and he pointed out that it would facilitate -matters (referring to the administration of the estate) for Mrs. Hackler to give him a power of -attorney to act in her behalf. According to the first testimony of Marley, the necessity for and purpose of a power of -attorney was discussed between him- and K. E. Armistead. Mrs. Hackler testified that its purpose was discussed between them at the time it was executed. It was drawn by Armistead’s regularly employed -attorney, who was employed by Mr. Marley to look after the legal features of probating the will and administration of the estate. It was executed in the office of Armistead, and witnessed by Mm and bis son. We think, as between Annie M. Hackler, F. N. Marley and K. R. Armistead, it should be limited in its effect and operation to winding up the estate of J. P. Hackler, deceased.

The next, and only other, question involved upon the appeal is whether the written agreement is a rental contract or a contract of partnership. This should be determined by the language of the instrument, unless susceptible of more than one interpretation. The purpose of written contracts is to clearly define the intention of the parties. Agreements are reduced to writing in order to avoid any differences between the parties thereto. Of course, if the written instrument is ambiguous it then becomes necessary to resort to parol evidence or the conduct of the parties under it to determine their intention. In construing a written instrument it should be interpreted most strongly against the party who prepared it. The contract in question was prepared by Marley. Mrs. Hackler could neither read nor write. The agreement is characterized as a lease in the opening declaration thereof. In the first paragraph it is clearly and plainly stated that Annie M. Hackler leases to F. N. Marley her plantation (describing it) and all the live stock and farming implements thereon, for a term of five years.

There is nothing in the opening declaration or the first paragraph indicating that the agreement is one of partnership, or that it is a share-cropper contract. On the contrary, the language clearly states that it is a lease or a rental contract.

The second paragraph defines the duties of F. N. Marley, the second party in the contract. We find nothing in the duties assumed by him inconsistent with the duties of a tenant. He agrees therein to manage -and operate the plantation, devoting so much of Ms time thereto as may be necessary, and agrees to be responsible for the proper management and operation of same.

The third or last paragraph provides that Annie M. Hackler and F. N. Marley are to ¡share equally the profits derived during the operation of said plantation under the lease. We do not think any doubt can arise out of •this paragraph as to whether the contract is one of lease. The last paragraph should be construed with the other parts of the agreement so that harmony may prevail throughout, if possible. This effect may be easily accomplished, without doing any violence to the language used, by construing this clause to mean that Mrs. Hackler was to receive one-half of the profits for rent, and Marley the other half for his labor or management and the use of the money advanced in the operation thereof. This interpretation is reasonable in the light of the paragraphs specifically stating what Mrs. Hackler "should furnish. If it had been the intention for her to furnish the money for the operation of the plantation, it would have been very easy to have included in the specific statement all the thing’s she was to furnish. The second paragraph provides for Marley to operate the farm, which necessarily implied that he should provide the funds to do so. The contract provided for him to manage and operate same, not to manage or operate same. The management refers to his mental and physical labors, and operation to the expenses incident thereto. A division of profits growing out of a business does not necessarily imply a partnership arrangement. A division of profits is often made a basis of salary for business or rents for property. We are unable to discover any ambiguity in the agreement. The relationship of landlord and tenant was created by the terms thereof.

The decree is affirmed.


text:
    Graham v. State.
    Opinion delivered February 13, 1928.
    1. Criminal law — continuance—absent witness. — Denial of a motion for continuance was not an abuse of discretion, where there was no- showing that the attendance of an absent witness could be procured by the next term of court.
    2. Criminal law — exclusion op evidence — subsequent admission. —Exclusion of competent testimony was cured by its subsequent admission.
    3. Homicide — deceased’s reputation of carrying pistol. — -Testimony that deceased had the reputation of carrying a pistol was inadmissible, since his general reputation for being violent or turbulent was admissible, but not his reputation for -any particular unlawful act.
    Appeal from -Ouachita Circuit Court, First Division; L. 8. Britt, Judge;
    affirmed.

      L. B. Smead, Dexter Bush and R. K. Mason, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit •' court of Ouachita -County, First Division, for murder in the first degree for shooting’ and killing T. N. Madden. Upon the trial of the cause he was convicted of murder in the second degree, and, as a punishment, was adjudged to serve a term of twenty-one years in the State Penitentiary, from which is this appeal.

A reversal of the judgment is sought upon two assignments of error, the first being the refusal of the court to grant appellant’s motion for a continuance, and the second, the exclusion of certain evidence.

(1). It was alleged in the motion for a continuance that appellant -could prove by James Cooper, if present, that he heard deceased threaten to take the life of appellant, and that, prior to the killing, he informed him of the threat; that he procured a subpoena for the witness, upon which a non est return was made. The motion did not state that the witness was within the jurisdiction of the court, or that he could 'be procured as a witness by the next term thereof. It is not an abuse of discretion to deny a motion for continuance for the term unless it is shown that the attendance of the witness can -be procured by the next term of court. Eddy v. State, 165 Ark. 289, 264 S. W. 832; Harris v. State, 169 Ark. 627, 276 S. W. 361.

(2). A few days before the killing, complaint was made by appellant to the mayor of the town, E. EL Timmons, about the children of deceased imposing upon his children, with the request to the mayor that he see the deceased and prevail upon him to assist him in quelling the disturbance between the children. When the mayor made the request, deceased assumed a hostile attitude to both the mayor and appellant. Appellant sought to show the demeanor of the deceased, and the court refused to allow the witness to answer relative to the demeanor of deceased, over the objection and exception of appellant. Immediately thereafter the court stated the witness might testify to anything that was of a threatening nature.

The appellant then asked the following questions and obtained the following answers thereto :

‘ ‘ Q. State to the court and jury what his demeanor was which gave you the impression that it was a threat? A. After I informed him that Mr. Graham had asked me to take the matter up with him and talk it over with him, he got angry, and grew more hostile as the conversation progressed, and I told him that I only came as a peacemaker, and I told him that if I could not be of any assistance I.would withdraw. Q. Was he angry at you or the defendant? A. He appeared to take some offense at my coming there. Q. Well, how about the defendant? A. He took offense at him, too.”

The admission of the testimony, after first excluding it, cured the error, if any.

Appellant also complains that the mayor and his wife were not permitted to testify that he advised appellant to avoid deceased. He is mistaken in this assump- • tion. The record reflects that both testified that he (the mayor) told appellant to avoid T. N. Madden.

Appellant also complains that witness Vick was not permitted to testify that deceased had the reputation of carrying a pistol. Vick testified that he had never seen deceased carry a pistol. The rule of evidence is that an accused may prove the g’eneral reputation of deceased for being a violent or' turbulent person, but not his reputation for committing any particular unlawful act.

Appellant also complains that he was not permitted to tell why he was afraid of deceased. The record reflects that appellant testified as follows:

“Q. Why were you afraid of him A. The way he was doing and talking to me, and then I went over to Mr. Timmons’ office and asked him what Madden said when he talked to him, and he would not tell me, only he said, ‘You better shun him’.”

No error appearing, the judgment is affirmed.