text:
    W. P. Galloway Company v. Puryear.
    Opinion delivered May 13, 1929.

      Ben D. Brickhouse and Linwood Brickhouse, for appellant.
   Humphreys, J.

This is an appeal' from a verdict and judgment in favor of appellee against appellant for $300, rendered in the circuit court of Washington County, on appeal from the court of a justice of the peace in Springdale Township, wherein appellant was plaintiff and appellee was defendant, in an action of replevin to recover a Frigidaire electric refrigerator, which appellant had sold to appellee under a title-retaining contract and note, after default had been made of the first installment set out in said note.

Appellee filed no written answer in either court, and the record made up and brought up to this court does not reflect what oral defenses she interposed to the complaint. It was not necessary for her to file any written answer, as the suit was commenced in the court of a justice of the peace. In a magistrate’s court pleadings may be oral. Section 6426, Crawford & Moses’ Digest; Morrison v. Railway, 87 Ark. 424, 112 S. W. 975; Lochridge Dry Goods Co. v. Daniels, 115 Ark. 423, 171 S. W. 863. The verdict which was returned in the instant case is as follows:

“We, the jury, find for the defendant in ,t!he sum of $300. W. H. Johnson.”

The judgment rendered by the court upon the verdict is as follows:

“It is therefore ordered, considered and adjudged by the court that the plaintiff take nothing from the defendant by reason of this suit, and that the defendant do have and recover of and from- the plaintiff the sum of $300 and her costs herein laid out and expended.”

The appeal to this court is from alleged errors appearing on the face of the verdict and judgment because mot in the alternative for the return of the property or i,tte value. Appellant contends for a reversal of the verdict and judgment because same are not responsive to the issues which could have been joined in a replevin suit. As there were no pleadings, and the testimony was not preserved and brought into the record, it is impossible to determine what issues were joined in the replevin suit. We cannot agree with appellant in its contention that the verdict and judgment could not have been justified .¡by any issues which might have been joined. It may be that appellee pleaded and proved that the Prigidaire electric refrigerator was worthless on account of defects, and that she had made a $300 cash initial payment, under the belief thaf it was perfect, which appellant should refund to her; or it may be that she pleaded and proved a warranty as to the quality and kind of the machine, which appellant had breached, and on thaf account entitled her to recover such purchase money as she might have paid; or it may be that appellee pleaded and proved payment or a set-off, and that, after the seizure of the machine under the writ of replevin, it was losjj or destroyed and could riot be returned, which would have authorized the return of a verdict and the rendition of a judgment for its value. Since the verdict ciould have been returned and the judgment rendered upon an issue properly joined in a replevin suit, this court must presume that the issue or issues were joined which warranted the verdict and judgment in the forms returned and rendered. In § 1195 of Crawford & Moses * Digest counterclaims may now be interposed as defenses in any cause of action, replevin or otherwise.

This court said in the case of Brunswick-Balke-Collender Co. v. Culberson, 178 Ark. 957, 21 S. W. (2d) 903, that: “There is no reason why a counterclaim is not proper in a replevin suit, where it is simply replevin in form and is an action in debt in reality.” The instant case is one for an action in debt in reality, although in form an action in replevin.

No error being apparent oh the face of the record, the judgment is affirmed.

Smith, J., concurs.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Crockett v. Missouri Pacific Railroad Company.
    Opinion delivered May 13, 1929.

      John P. Vesey, for appellant.

      E. B. Kinsworthy and R. E. Wiley, for appellee.
   Kirby, J.,

(after stating the fac,ts). The undisputed testimony shows that appellant’s intestate, the person injured in the collision or accident, executed a full release to the railroad company fior all damages or injuries, including both known and unknown injuries and future developments thereof growing out of or in any way resulting from the accident or collision, describing it, for the consideration paid; and, there being no fraud alleged or proved in the procurement of the injured person’s acceptance of its terms, no mental incapacity alleged or shown, and no claim ¡of the injured person having executed the release in reliance upon the statement of a physician as to the extent of the injury suffered, both parties were necessarily bound by it, and the court did not err in directing the verdict. Kansas City S. R. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123; Francis v. St. Louis, I. M. & S. Ry. Co., 102 Ark. 616, 145 S. W. 534; St. Louis, I. M. & S. Ry. Co. v. Campbell, 85 Ark. 592, 109 S. W. 539; Mo. Pac. Ry. Co. v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528.

It is unnecessary, in view of this holding, to determine any other questions raised. The judgment is affirmed accordingly.


text:
    Bennett v. Kelley.
    Opinion delivered May 13, 1929.

      John Baxter and Will J. Irvin, for appellant.

      A. Z. Golden and J. M. Golden, for appellee.
   Kirby, J.,

(after stating the facts). The law is well settled that the publication of the ordinances of the city or town council establishing the improvement district, as required by the statute, is mandatory and essential to the creation of a local improvement district, the publication of the notice in the manner prescribed by the statute being jurisdictional, and without which the district cannot be created. McRaven v. Clancy, 115 Ark. 163, 171 S. W. 88; Voss v. Reyburn, 104 Ark. 298, 148 S. W. 510; Crane v. Siloam Springs, 67 Ark. 30, 55 S. W. 955; Norton v. Bacon, 113 Ark. 566, 168 S. W. 1088.

This case is unlike McRaven v. Clancy, supra, wherein a lot which was included in the petition for and ordinance creating the district was omitted from the publication of the ordinance, and Voss v. Reyburn, supra, wherein one-half of two blocks containing 12 lots was omitted from the publication of the ordinance, and such omissions held to be material variations from the petitions and ordinances as passed, destroying the validity of the attempted organization of the districts.

Here no territory was omitted from the ordinance as published, but only an alley, the paving of which was provided for, described as “between lots 1 and 2, block 3, from Iowa Street south to tbe alley running east and west across block 3,” the alley in fact being between lots 2 and 3, block 1, there being no alley between said lots 1 and 2, block 3. The alley is shown by the plat exhibited with the complaint and located between lots 2 and 3, in block 1, as correctly described in the petition and ordinance, which is the only alley running south from Iowa Street in the district. This incorrect location of the alley in the published ordinance could not have had effect to authorize the opening* and laying out of such an alley in the block where none existed, nor could it have misled the commissioners in any way, nor prevented their making the improvement of the alley as laid out in fact and correctly described in the petition for and the ordinance creating the district, it being the only alley in the district for improvement leading south from Iowa Street, as designated, in the publication of the ordinance even, and the variance cannot be regarded as material.

Neither can the other alleged variance in the boundary of the district in the publication of the ordinance from the boundary correctly described in the petition for and ordinance creating the district be regarded as sio material or important as to affect the validity of the organization of the district. As already said, it excludes no territory from the district as created by the ordinance, but includes a small triangular piece of School Street and a part of the southeast corner of lot 3, block 5, Lambert’s addition, outside of and immediately north of lot 4, block 5, inside of the district. The amount of the territory included is negligible, being only the small sfirip taken in by extending the line diagonally* across School Street to the northwest corner of lot 4, block 5, Lambert’s Addition, 57.2 feet wide, instead of across said street to the northeast corner of said lot 4 and thence straight west to the northwest corner of lot 4. The description of the boundary as published and as it should have read is as follows:

“Thence across School Street to the northwest corner of lot 4 of block 5 of Lambert’s Addition; thence west to the northwest corner of lot 5 of block 5 of Lambert’s Addition,” when said description should have read, and so read in the original petition and ordinance: “Thence across School Street to the northeast corner of lot 4 of block 5 of Lambert’s Addition; thence west to the northwest corner of lot 5 of block 5 of Lambert’s Addition. ’ ’

A property owner within the district seeking to ascertain its true boundaries could not have been misled by this description in the published ordinance, and on comparison thereof with the correct description in the original petition for and ordinance as enacted by the council, would easily have perceived that designating the northwest corner of lot 4, block 5, Lambert’s Addition, instead of the northeast corner of said lot as correctly included in the ordinance, was but the result of a clerical misprision, and certainly the owner of said lot 4 could not have been misled about its inclusion in the district, since both descriptions showed it to be within the boundaries thereof. These patent clerical or typographical errors in the published description of the boundaries of the district did not invalidate the ordinance creating it.

The chancellor erred in holding otherwise, and the decree is reversed, and the cause remanded with directions to sustain the demurrer and dismiss the complaint for want of equity.


author: Mehaffy, J.

text:
    Lane v. Smith.
    Opinion delivered May 13, 1929.

      Pace & Davis, for appellant.

      G. M. Gibson, for appellee.
   Mehaffy, J.

This suit was instituted by appellee against appellant in the Lawrence Chancery Court, to recover for a breach of contract.

It was alleged that on the 9th day of November, 1927, appelle.e entered into a contract with the appellant to purchase the Lawrence Hotel, together with lots 10, 11 and 12, in 'block 11, of the city of Walnut Ridge, Arkansas. The hotel was located on said lots. Appel-lee was to pay $1,000 upon the signing and delivery of the contract as earnest money, and was to pay $9,000 additional when possession was delivered. He was also to execute 80 notes for $500 each, payable monthly. The plaintiff paid the $1,000, and paid a further sum of $1,000 to F. M. Messer, and alleged that this was for the benefit of the appellant. Appellant agreed to furnish an abstract of title showing good and clear title, and pay all taxes due or which should become due between then and January 1, 1928, and the general taxes assessed in 1927, and deliver possession of the property January 1, 1928, or as soon thereafter as could by due diligence be done, and to .make a proper -warranty-deed.

It was alleged tbat tbe plaintiff paid tbe sums called for, and stood ready to pay tbe $9,000 upon tbe furnishing of an abstract and making a deed and delivery of possession.

Appellee alleged tbat appellant purposely delayed tbe delivery of tbe abstract until December 30, 1927, and tbat, when delivered, it showed numerous defects. It was further alleged that time was of the essence of tbe contract. Appellee notified appellant on tbe 2d day of January, 1928, tbat she bad failed to comply with her contract; tbat said contract bad been breached by her; and demanded the return of -the $2,000 paid by him, and also $2,500 damages.

The appellant filed answer-, denying tbe material allegations of tbe complaint.

Tbe contract of sale was as follows:

“This contract for sale, made this 9th day of November, 1927, by and between Mrs. W. E. Lane, party of the first part, and E. H. Smith, party of tbe second part, witnesseth: Tbat the said party of tbe first part has this day agreed to sell to tbe party of the second part the Lawrence Hotel building in Walnut Eidge, Ark., together with lots 10,11 and 12, in block 11, city of Walnut Eidge, Ark., on which tbe same is located,- and all the furniture and fixtures which belong to tbe party of the first part and which are now being used in said hotel, this being to except any furniture belonging to the present lessee, upon the following terms and conditions, to-wit: That said party of the second part is to pay to the party of the first part, upon the signing and delivery of this contract, the sum of $1,000 as earnest money to show his good faith in making this contract, and shall pay to the said party of the first part the further sum of $9,000 when possession is delivered to him as hereinafter provided for; and further agrees that he will execute his eighty notes for $500 each, payable one the first of each month until all are paid, said notes to bear interest from date until paid at the rate of six per cent, per annum, interest to be paid annually on all unpaid notes, and if not so paid, to become as principal and bear tbe same rate of interest. Provided further, that the said notes shall have written in them an accelerating clause, making all notes due and payable at once when default is made in the payment of any one of said notes.
“The said party of the first part agrees to furnish abstract showing good and clear title to the said property, and to pay all taxes now due or which will become due between now and January 1, 1928, and the general taxes assessed in 1927, and to deliver possession of the same on January 1, 1928, or as soon thereafter as can, by due diligence, be done, and to make proper warranty deed, retaining lien for purchase money.
“The said party of the second part further agrees that he will keep up all repairs on said building and keep all taxes and assessments paid up, and that he will keep the same insured in some reliable company against loss by fire or tornado, for the benefit of the party ¡of the first part, in the sum of at least $35,000, if possible, and any failure of the said party of the second part to comply with these conditions shall forfeit the contract.
“It is agreed that an inventory is to be taken of the furniture and fixtures as soon as can be done after the signing of this contract, and one copy shall be retained by each party.
“Signed in duplicate this day and date first above written.
(Signed) “Mrs. W. It. Lane.
“R. H. Smith.”

The appellant took the abstract to Smith’s place of business on the 29th of December, but did not find Smith there, and the abstract was not delivered until the 30th day of December, 1927.

On the 2d day of January appellee wrote plaintiff the following letter:

“January 2, 1928.
“Mrs. W. R. Lane,
“Walnut Ridge, Ark.
“Re Lawrence Hotel building.
“Dear Mrs. Lane: In tbe above matter, a contract of sale dated November 9, 1927, relative to Lawrence Hotel property, was executed between yourself and tbe undersigned, R. H. Smith.
“On November 10, 1927, $1,000 was paid to you by me as earnest money, and I also paid for your account and as additional earnest money and part of the purchase price, in ease this contract was consummated, $1,000 to F. M. Messer.
“The fourth paragraph of this contract was as follows : ‘ The said party of the first part agrees to furnish abstract showing good and clear title to the said property and to pay all taxes now due or which will become due between now and January 1, 1928, and the general taxes assessed in 1927, and to deliver possession of the same on January 1, 1928, or as soon thereafter as can by due diligence be done, and to make proper warranty deed, retaining lien for purchase money.’
“Abstract of title was not furnished me until December 30. I had it examined as soon as possible, and I am now advised by my attorney that same does not show good and clear title to the property in you.
“None of the provisions of the paragraph' above quoted nor of this contract Have been complied with by you, and the time within which these matters were to be done has elapsed. On this account, this is to advise you that this contract of sale has been breached by you, and that I am no further obligated thereunder in any way, and that you are due to return the $2,000' paid by me as above mentioned. • Please return to me the $1,000 which I paid you as earnest money on November 10, 1927, also the $1,000 which I paid to Mr. Messer for your benefit and in connection with this contract, as above mentioned.
“On account of your noncompliance with, your contract, I have been to considerable trouble and expense and lost a sum of money- totaling* approximately $6,000. You may consider this letter a demand for the return of the $2,000 above mentioned, together with interest at the rate of six per cent, per annum from date of payment thereof, and in case this money is returned to me by January 7,1 will be willing to waive further damages. In case it is not, however, I shall expect you to return to me the $2,000 and interest, and to respond to me in damages for such sum as I have been damaged by reason of your breach of your contract.
“I am herewith returning to you the abstract of title.
“Yours very truly.”

The contract was made on November 9, and the evidence shows that'the abstract was completed on December 21, but appellant did not deliver it to appellee until December 30. An effort was made to deliver it on the 29th of December, but Smith was not at home, and his wife refused to receive it.

The attorney who examined the abstract for appel-lee called attention to the fact that the abstract did not show good and clear title to the property, but at that time did not specify any particular defect. He after-wards wrote a letter, calling attention to numerous defects. All of the defects to which attention was called by the attorney were such defects as could be easily remedied and, in fact, were afterwards corrected. If the abstract had been delivered to appellee on the 21st of December, when it was completed, it is probable that there would have been time then to cure the defects in the title and give possession by the first of January. The abstract, however, not having been delivered to ap-pellee until the 30th of December, it was impossible to have the defects in the title cured by January 1.

The contract provides that possession shall be delivered on January 1, 1928, or as soon thereafter as can, by due diligence, be done. The question to be determined is, did appellant nse due diligence in an effort to deliver possession by the first of January? The contract expressly provides for the delivery of possession to be the first of January, or as soon thereafter as can, by due diligence, be done. "Whether or not appellant used due diligence was a question of fact under the circumstances, and we have reached the conclusion that the finding of the chancellor was not against the preponderance of the evidence on this issue.

When one agrees to furnish an abstract showing good title, and an abstract which shows defects is furnished, and attention is called to the defects, the seller would have a reasonable time in which to make the title good. This court said:

“When that defect was called to the attention of appellee, George T. Blair, he at once had that corrected by procuring deeds from the three married women, describing the land correctly by metes and bounds. When this was done, Blair went back to appellant for the purpose of closing the deal, and appellant, according to the testimony, refused to negotiate any further or to complete the purchase. It is evident that appellees were doing all that they could to fully comply with the undertaking to furnish a marketable title, and they did in fact cure all the defects which were specially called to their attention. If the other defects in regard to the description in the other deeds had been insisted upon, appellant would have been in the attitude to demand that those defects be cured, but, instead of doing that, he arbitrarily broke off the negotiations and declined to go further with the trade. Appellees still had the right, and have now the right, under the contract, to perfect the title so as to make it marketable.” Mays v. Blair, 120 Ark. 69, 179 S. W. 331.

The appellant in the instant case, if she had used due diligence, would have had the right to have the defects shown in the title corrected. The contract was made on the 9th-of November, and possession was to be delivered, if it could be done by the exercise of proper diligence, on the first of January, nearly two months. While the contract does not specify when the abstract shall be furnished, it was necessarily understood that it would be furnished a sufficient length of time before the first of January, if it could be done with the exercise of proper diligence, to enable the appellee to examine the abstract, and, if there were any defects, to have them cured, so that possession might be delivered by the first of January. The contract does not provide that possession must be delivered the first of January, but it does provide that it shall be delivered then or as soon thereafter as can be done with diligence. Diligence, used in this connection, evidently means diligence on the part of the appellant in doing whatever is necessary to be done in order that possession may be delivered on the first of January or as soon thereafter as can be done with the exercise of diligence. As we have said, however, the question of whether appellant used diligence was a question of fact, and we cannot say that the finding -of the chancellor, on this issue was against the preponderance of the evidence. There is nothing to indicate that the abstract might not have been made within 30 days, or less, and it appears that, if proper diligence had been used, it could have been done within this time.

Most of the objections to the title appear to be technical, and all could evidently have been cured in a very few days. Several of the objections are with reference to paying the taxes of the improvement districts, but there was no obligation on the part of appellant to pay either these taxes or the general taxes until the first of January, and the taxes were all paid after the abstract was examined. The parties to the contract knew that the taxes assessed in 1927 had not been paid, because the time to begin payment of taxes was January 1. Appellee knew these -taxes had not been paid, and knew that the other taxes had not been paid, and evidently, for that reason, provided in the contract that appellant should pay them. It is not important, however, to go into the question of the defects in the title pointed ont by the attorney, because we have reached the conclusion that appellee was not hound to complete the sale and take the property, since the appellant had not used due diligence to the end that possession might he given him on January 1, and the chancellor properly found against appellant as to the $1,000 paid her by appellee.

We are of the opinion, however, that the court erred in rendering judgment in favor of the appellee for $1,000 paid to Messer.

The appellee testified that he knew Messer represented the appellant, and that he had seen a previous contract between appellant and Messer, and this contract is introduced in evidence. The contract places this property for sale with P. M. Messer for a term of six months, and authorizes Mm to contract with the purchaser for the sale and conveyance, etc. But it expressly provides that the price, $55,000, is to he net; so, whatever sale was made, the appellant agreed in this contract that she was to have net $55,000.

The contract between appellant and appellee provides that appellee is to pay $1,000 as earnest money to show his good faith, and the further sum of $9,000 when possession is delivered, and that he shall execute his 80 notes for $500 each, payable one the first of each month. This aggregates $50,000. They discussed the payment of the commission to Messer before the contract was signed, and it was suggested that the contract be written for $51,000, but the appellant did not agree to this, and did not agree to pay Messer his commission, and it was expressly agreed that the contract should be written for $50,000, and that the appellee should pay Messer’s commission. Whatever conversation was had prior to the signing of the contract was merged in the written contract, and parol evidence was not admissible to vary or contradict the terms of said contract, and the written contract fixes the purchase price at $50,000.

“Prior oral agreements and antecedent writings forming a part of negotiations for a contract become merged in the subsequent written contract, and are incompetent as evidence for the purpose of enlarging the scope of such written contract.” Harrower v. Ins. Co. of N. America, 144 Ark. 279, 222 S. W. 39; Doniphan K. & S. Rd. Co. v. Missouri & N. A. Rd. Co., 104 Ark. 475, 149 S. W. 60; American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50.

But, even if oral testimony was admissible to vary or contradict the terms of the written contract, the evidence in this case, we think, shows conclusively that the appellant did not agree to pay any commissions to Messer. On the contrary, she stated very positively that she would not pay any commissions, and, for that reason, the purchase price was fixed in the written contract at $50,000, and this was $'50,000 net to her.

If an agent agrees to sell property for an owner at a certain price net to the owner, and sells at that price, the owner, of course, would not owe him any commission. Under the evidence in this case, Messer did not at any time have any claim against the appellant for commission, because she stated and he admitted that she was not to pay any commission, and that he was to get his commission out of Smith. She stated that they tried to get her to sign the note to Messer for the deferred payment, and she refused to do this. She also testified that she was to get $50,000 net; Smith was to pay the commission, and she was ready and willing at all times to carry out her part of the contract.

Messer testified, exhibiting his card, to which we have already called attention, showing that he was authorized to sell the property for $55,000 net to appellant; that the price was first $55,000, and that the price in the contract of sale with Smith was finally written as ■$50,000. He testified that the price agreed on at first was $51,000, and that Mrs. Lane did not want to place herself in a position to have to pay commission. She wanted the net price of $50,000, and Messer agTeed, according to his testimony, to this, and stated it did not make any difference to him, and that he then agreed that if Mr. Smith would pay the commission it would he all right.

The purchaser of property can employ a 'broker to buy just as a seller can employ one to sell, and may become liable for commissions. Certainly he could not recover commissions against the owner when she was stating all the time that she would not pay it, and he agreed to changing the contract so that she would not have to pay it, and Smith agreed to pay it.

We think the overwhelming weight of the testimony shows that the appellant was not pay the commission, and we also think that the written contract, made after their conversations with reference to the commissions, clearly shows that she was not liable for the $1,000 paid to Messer.

It follows therefore that the court erred in rendering a decree in appellee’s favor against appellant for-the sum of $1,000 paid to Messer, and in this respect the decree will be reversed, and appellee’s cause of action dismissed. In other respects the decree of the chancellor was correct, and it is affirmed.


text:
    Yeates v. Yeates.
    Opinion delivered May 13, 1929.

      King & Whatley and Henry Stevens, for appellant. McKay & Smith, for appellee.
   Mehaffy, J.

William Baker Yeates died about the 14th day of February, 1922, in Lafayette County, Arkansas, leaving Mrs. S. A. Yeates, his widow, E. C. Yeates, Ella Broack, Emma Todhunter, Effie Yeates McClellan, Beatrice Yeates Martin, Nellie Yeates Barney, William Clinton Yeates and Clifton Yeates as Ms cMldren and only lieirs. He owned, at the time of his death, certain real estate, described in plaintiff’s complaint.

On the 17th day of January, 1922, William B. Yeates executed the following instrument as his will:

“Last Will and Testament of William Baker Yeates.
“Taylor, Arkansas, January 17, 1922.
“Be it known by these presents, that I, William Baker Yeates, being of sound mind, do execute this instrument of writing as my last will and testament as to the distribution of my property after death, fully realizing that we have to meet it sooner or later, and being in full possession of all my faculties, and as before states of sound mind, do choose this an opportune time, also being under obligation to some of my children for care and attention during sickness I do feel a sense of obligation to them for their favors, and not to run any risk as to others contesting their rights after my decease.
“List of William Baker Yeates’ real estate.
“List of property to be distributed after my death.
“Eighty acres in Lafayette County, Arkansas; 80 acres in Columbia County, Arkansas; about 13 acres in Lafayette County, Arkansas; about 3y2 acres in Columbia County, being in town of Taylor, Arkansas; the numbers ,of said lands will be expressed when this instrument will be rewrote in legal form after deducting from these lands and other perishable property, constituting the real and actual expenses will be bequeathed to W. C. or more familiar name of Boss Yeates (William Clinton Yeates) and after bequeathing $1 to each of the other contestants’ just claims as being my children, all other contestants being debarred.
“I, William Baker Yeates, do name and call as being citizens of Lafayette and Columbia counties, and having’ known me and the property in question all their lives. Names of witnesses as named by myself and written by myself:
“William Baker Yeates, donor.
“Monroe Glasgow, J. P.
“Wash McDonald, Jim Fish, Willie J. Collier. Names of witnesses in their own hand: Wash McDonald, J. F. Fish, W. J. Collier. •
“Witness and subscribed before me this 17th day of January, 1922.
“Monroe Glasgow, J. P.”

This will was probated in March, 1923, the probate court of Lafayette County ordering and adjudging that the above will was the last will and testament of William Baker Yeates, and that it is established and probated, and the clerk ordered to record same in record of wills in Lafayette County, Arkansas.

On the 26th day of March, 1925, the plaintiffs filed their complaint in the Columbia Chancery Court against William C. Yeates, alleging that they, together with the defendant, are the owners as tenants in common of the lands described in the will and in plaintiff’s complaint. They alleged that William Baker Yeates died about the 14th day of February, 1922, leaving surviving him the plaintiffs and the defendant, who are the only heirs at law of William Baker Yeates, deceased. The plaintiffs in the lower court are appellees here, and the defendant in the lower court is the appellant.

William Clinton Yeates, the defendant, filed answer, denying the material allegations in plaintiff’s complaint, and alleged that he was the owner of the property,- both by gift and under the will of his father. He further states that the will was probated, and that an appeal was taken by the plaintiffs to the circuit court, and that the findings of the probate court were approved, and that no appeal was ever taken from the circuit court. All of the parties to this suit were parties to the suit in the circuit court contesting the will.

There were numbers of witnesses examined, and the testimony was somewhat conflicting, several witnesses testifying, in substance, that William Clinton Yeates did not look after his father and care for him in his sickness ; that he lived separate from him, and that some of the other children contributed as much or more than William 'Clinton Yeates to the father during his sickness. And the court found that the will of William Baker Yeates, introduced in evidence, was ineffective to transmit the title to the property described to the defendant as against the plaintiffs, and also found against the appellant for six-sevenths of the value of the timber which he had cu,tJ from the land. The court found that the plaintiffs and the defendant each was entitled to one-seventh undivided interest in the lands described in the complaint, subject to the dower interest of Mrs. Sarah Alice Yeates.

The only question before this court is whether the will which was admitted to probate is effective .to transmit the title to the real estate described to the appellant. That is, whether it is effective to give the appellant all the real estate described as against the other children of the testator.

Section 10507 of Crawford & Moses’ Digest is as follows:

“When any person shall make his last will and testament, and omit ,tlo mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate, and such child shall be entitled tlo such proportion, share and dividend of the estate, real and personal, of the testator, as if he had died intestate; and such child shall be entitled to recover from the de-visees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections. ’ ’
‘ ‘ The omission of .the name of a child does not make the will void, but the child whose name is omitted may recover his share of the estate that he would have been entitled to if the testator had died intestate.” Trotter v. Trotter, 31 Ark. 145; Bloom v. Strauss, 70 Ark. 483, 69 S. W. 548; 72 S. W. 563.

This court, in construing this statute, said:

“We think it! is manifest that what was intended by the statute was to declare intestacy as to children of a testator, and thus provide compulsory provisions for them, unless the testator expresses a contrary intention in the will toward the children. Such an intention may he expressed by the testator in his will by providing for them as a class, without naming them separately, or by naming them without providing for them. Either method is equivalent to the other, and either the one or the other clearly excludes any intention on the part of the testator to omit his children from the testament. It would, we think, be disregarding entirely the purpose of the statute, and would be putting form over substance, to say that! the names of children must be individually mentioned in a will which provides substantially for each and all of them.” Brown v. Nelms, 86 Ark. 368, 112 S. W. 373.

Is the intention of the testator expressed in this will by providing for his children as a class or by naming them without providing for them? It will be seen that this court has said that either method satisfies the requirement of the statute. Of course it will not be contended that any intention was manifested by naming the children. They are not named in the will. Then the only question to be determined is whether the intention of the testator was expressed by providing for them as a class. It was evidently the intention of the testator to have the will rewritten, as he said, in legal form, bu,t the fact that he did not do so is immaterial, because the will has already been probated in the form in which it was originally written by Dr. Yeates. He states that he owns 80 acres of land in Lafayette County and 80 in Columbia, and also about 13 acres in Lafayette and about 3y2 in Columbia, and states that the- numbers of said lands will be expressed when the instrument is rewritten in legal form. Immediately following this is the statement in .the will: “After deducting from these lands and other perishable property, constituting the real and actual expenses will he bequeathed to W. C. or more familiar name of Boss Yeates (William Clintqn Yeates) and after bequeathing $1 to each of the other contestants’ just claims as being-my children, all other contestants being debarred.”

We do not think that it can be said that the .testator, when he used the expression, “to each of the other contestants,” meant all of his other children, or amounted to designating them as a class. It is impossible to tell from the will whether he meant all his children to have $1 apiece or whether he is referring to his children when he says they are debarred. He uses the word “contestants” and not the word “children.” It is true he says ‘ ‘ that each of the other contestants ’ just claims as being my children,” but this is not sufficient to show that he had in mind all of his children. In the first part of the will he also says: “Being under obligation to some of my ^children for care and attention during sickness, I do feel a sense of obligation to them for their favors, and not to run any risk as to other contesting their rights after my decease. ’ ’ This makes it perfectly plain that he had in mind more than one child that he felt under obligations to, because he says “some of my children,” and put it on the ground that they had cared for him and attended him during his sickness, and that he feels a sense of obligation to them. If he had meant simply one of them he would have said “to one of my children,” or to William Clinton Yeates, if he was the one he intended to provide for. But, when it is perfectly plain that he felt under obligation to some of his children, and that means more than one, then, in using the word “contestants” he cannot have meant all of his children as contestants.

“Some means two or more.” Hurn v. Olmstead, 105 N. Y. Sup. 1091. “Some child” would mean one child, but “some children” means more than one.

The principal or fundamental rule in construing wills is to ascertain the intent of the testator and give it effect, unless the testator attempts to secure a purpose or make a disposition contrary to some rule of law or public policy. The rules of construction are designed to ascertain and give effect t!o the intention of the testator. We think it practically impossible to tell what was the intention of the testator from this will, and if a testator attempts to effect that which the law forbids, his will must yield to the rules of law, no matter what his intention may have been, because the law will not permit the intention of the testator to be accomplished if he undertakes to do a thing which the law forbids. 28 it. C. L. '211 et seq.

It has been repeatedly held that, in construing wills, the intention of the testator is to be collected from the words of the will itself, as applied bo the subject-matter, and read in the light of surrounding circumstances. And the intention mentioned is the intention expressed by the language of the will, and not necessarily the intention the testator had in mind. In other words, we get the intention by the language used, and there is no language used in this will that can be construed to mean a designation of his children as a class. When you take the whole will, it is perfectly plain that he felt under obligations to more than one of his children, and intended to provide for them because they had attended him in his sickness and cared for him. Not only is this manifest by the language used in the will itself, but the testimony shows that his children other than William Clinton Yeates had attended him in his sickness and helped him. Again, we think it clear from the language used in the will that he intended that his property after his death should be distributed. One sentence in the will is: “List of property to be distributed after my death. ’ ’

This court has said: “The rule and the reason for it is seated by Mr. Jarman as follows: 'The most unbounded indulgence has been shown to the ignorance, un-sMllfalness and negligence of testators; no degree of technical informality, or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of -wtords or sentences, will deter .the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part iof the will, and the whole carefully weighed together; hut if, after every endeavor, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence. Conjecture is not permitted to supply what the testator has failed to indicate; for, as the law has provided a definite successor in the absence of disposition, it would be unjust to allow the right of this ascertained object to be suspended by the claim of any one not pointed out by the testator with equal distinctness. The principle of construction here referred to has found expression in the familiar phrase, that the heir is not to be disinherited unless by express words or necessary implication.” Cook v. Worthington, 116 Ark. 328, 173 S. W. 196.

The statute above quoted expressly provides that, when a person makes a will and omits to mention the name of a child, every such person, as regards such child, will be deemed to have died intestate, and such child will be entitled to such portion, etc. And if a person die intestate, children inherit equally. Section 3471, Crawford & Moses’ Digest. They inherit the property, however, subject to the payment of deceased’s debt's and subject to the widow’s dower.

A person can dispose of his property by will to pert-sons other than his children or relatives. He may disinherit all of his children, but, in order to do so under our statute, he must name the children, and, independent of the statute, it must be clear from his will that he intended to disinherit them. Children and those who are entitled to inherit will not be deprived of this right by conjecture or unless it is the manifest intention of the testator to disinherit them.

“The heir will no,t be disinherited unless it be done by express terms of the will or by necessary implication ; and the heir 'being favored in law, there should be no strained construction to work a disherison when the words of the will are ambiguous.” Baer v. Forbes, 48 W. Va. 208, 36 S. E. 364.

Dr. Yeates not only did not mention his children so as to deprive .them of any inheritance, but his wife was not mentioned in his will. Of course he could not have deprived her of her dower anyway; whether he had her in mind when he was talking about contestants, or had some of his children in mind instead of her, it is impossible to tell from the will. The "will is so ambiguous tha,t it is impossible to tell the number of children that he intended to provide for.

“Where any ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will; hence such a construction should be given the will as favors the heirs at law, or next of kin, in preference to disinheritance, or to strangers, or persons not so closely related to the testator, and the heirs at law will not be disinherited by mere conjecture, but only by express words in the will, or by necessary implication arising from them.” 40 Cyc. 1412.

It is again said: “Where the testator’s intention, as expressed in his will, is ambiguous or obscure, such a construction should be adopted, if possible, as will dispose of his property in a just, natural or reasonable manner, such as by an equal, distribution among his children or beneficiaries, where that is his manifest purpose.” 40 Cyc. 1410.

Some of the witnesses testified that Dr. Yeates was a dope fiend, and this may account not only for his failure to mention his wife and his children, font also for the ambiguous manner in which the will was written. At any rate, we think the will so ambiguous that it is impossible to say that he complied with the .statute foy naming his children, either as a class or individually, and that the will should therefore be construed so as to permit all the children to share equally in his property.

The decree of the chancellor is therefore affirmed.


author: Hart, C. J.

text:
    American Portland Cement Company v. Certain Lands.
    Opinion delivered May 20, 1929.

      Shaver, Shaver & Williams, for appellant.
   Hart, C. J.

American Portland Cement Company, a corporation, prosecutes this appeal to reverse a decree of the chancery court refusing to confirm its tax title to certain lands. The petition to confirm the tax title to the lands was. filed under the provisions of §§ 8379-8392 of Crawford & Moses’ Digest, and is in statutory form. What purports to be two tracts of land are involved. The assessment book showed one tract described as follows: “Pt. west half of the northeast quarter of section 2(8, township 12 south, range 32 west, containing 11.48 acres.” The other tract was assessed separately, and is described as follows: “Pt. west half of the northeast quarter of section 28, township 12 south, range 32 west, containing 68.52 acres.” The same description of each tract is carried into all the subsequent proceedings. The two tracts, under the descriptions copied above, were sold separately by the collector on the same day to Natalie 8. Williams, and, after the period of redemption allowed by statute had expired, the clerk ex-excuted to her two tax deeds. The description in each deed followed that copied above. Subsequently she executed a quitclaim deed to the American Portland Cement Company to the west half of the northeast quarter of section 28, township 12 south, range 32 west, containing 80 acres. The chancery court found that the descriptions in the tax deeds were void on their face, and the petition for confirmation was dismissed for want of equity.

The chancellor was correct in his opinion. The object of the description of land on the assessment books and in the subsequent proceeding’s leading up to and including the sale is not only to inform the taxpayer what property is taxed as his, but also to inform the public, if the land is sold for the nonpayment of the taxes, just what land is sold. The description is void where it is so vague and indefinite that it in no way identifies the land. Lonergan v. Baber, 59 Ark. 15, 26 S. W. 13; Buckner v. Sugg, 79 Ark. 442, 96 S. W. 184; and Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, A. L. R. 1225.

The description of each tract in the present case is part of the west half of the northeast quarter of a certain section. The owner conld not know from this description what lands were assessed as his, nor whether the land of others might he included in the assessment. Such an .assessment imposes no duty upon a taxpayer, and has been uniformly held by this court to he absolutely void on its face. Cooper v. Lee, 59 Ark. 460, 27 S. W. 970; Guy v. Stanfield, 122 Ark. 376, 183 S. W. 966; Covington v. Berry, 76 Ark. 460, 88 S. W. 1005; Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199; Cotton v. White, 131 Ark. 273, 199 S. W. 116; and Buchanan v. Pemberton, 143 Ark. 92, 220 S. W. 660.

The correctness of these decisions is not challenged, but it is contended that they do not apply because the number of acres set out in each .tract, when added together, amounts to 80 acres, and that this showed that the whole west half of the northeast quarter was assessed for taxation and sold at the tax sale. It will be noticed that one tract is described as containing 68.52 acres and the other as containing 11.48, totaling* 80 acres. The trouble about this contention is that the two tracts were assessed separately and were sold separately. The owner of land in the northeast quarter of section 28 could not be put on notice from either description that his land had been assessed for taxation or was to be sold for the nonpayment of taxes. He could not be required to search through the assessment hooks and see if, by any chance, his lands had 'been assessed for taxation and sold for the nonpayment of taxes, by comparing the description with those of other descriptions in the same governmental subdivision. All the owner would be required to do was to take notice that his lands were assessed for taxation and sold for nonpayment of taxes, and, if the description was too vague and indefinite for that purpose, it would be absolutely void on its face, and the tax deed containing the same void description would be equivalent to no deed at all. Hornor v. Jarrett, 99 Ark. 154, 137 S. W. 820.

Appellant in this case could acquire no better rights by the quitclaim deed executed to it by the purchaser than the tax purchaser acquired by the tax deed executed to her. Therefore the decree will be affirmed.


author: Hart, C. J.,

text:
    Cain v. Mitchell.
    Opinion delivered May 20, 1929.

      E. M. CarlLee and W. J. Dungan, for appellant.

      Jonas F. Dyson, for appellee.
   Hart, C. J.,

(after stating the facts). The decree dismissing the complaint of Tori Cain Mitchell was correct. The lands sought to be recovered in that suit were partnership lands belonging to a firm composed of N. N. Cain and A. D. Cain. It is true that, according to the evidence adduced by the plaintiff, these lands belonged to N. N. Cain, and A. D. Cain did not become a member of the firm while the lands in question belonged to the partnership. In other words, according to the evidence of the plaintiff, Tori Cain Mitcliell, the firm of N. N. Cain and his son, W. B». Cain, was dissolved, and the lands in question 'became the individual lands of N. N. Cain. According to the testimony of A. D. Cain, he became a member of the firm at the time his father purchased the interest of W. R. Cain, and the lands continued to belong to the partnership. The chancellor found this issue of fact in favor of A. D. Cain, and it cannot be said that his finding is against the preponderance of the evidence.-

Real estate purchased for partnership purposes, paid for with partnership funds, and held and used as partnership property, will be treated as personalty for the purposes of the partnership, and as partnership property, regardless of the manner or by what agency it is bought and in whose name the title is held. The holder of the legal title will be considered a trustee for the partnership. Cain v. Hubble, 184 Ky. 38, 211 S. W. 413, 6 A. L. R. 146. This is the legal effect of our own decisions bearing on the question. Perciful v. Platt, 36 Ark. 456; Lewis v. Fones, 48 Ark. 557, 4 S. W. 56; and Lewis v. Buford, 93 Ark. 57, 124 S. W. 244.

The evidence warranted the chancellor in finding that the lands in question were purchased by the firm composed of N. N. Cain and W. R. Cain, and that A. D. Cain became a member of that firm at the time N. N. Cain bought the interest of W. R. Cain, and that the lands continued to be partnership lands. Hence A. D. Cain became the owner of an undivided one-half interest in these lands by virtue of the partnership and of an undivided one-eighth interest in them as one of the four heirs of his deceased father. The court correctly held that he was entitled to an undivided five-eighths interest in said lands.

A. D. Cain seeks to reverse the decree setting aside the deeds to certain lands from his mother to himself which were executed in December, 1921. The law relating to transactions of this sort is well settled in this -State. Mental weakness, although not to the extent of incapacity to execute a deed, may “render a person more susceptible of fraud, duress, or undue influence, and, when coupled with any of them, or even with unfairness, such as g’reat inadequacy of consideration, may make a contract voidable, when neither such weakness nor any of these other things alone would do so. ’ ’ Pledger v. Birkhead, 156 Ark. 443, 246 13. W. 510, and cases cited; and West v. Whittle, 84 Ark. 491, 106 S. W. 955. See also Phillips v. Phillips, 173 Ark. 1, 291 S. W. 802; Campbell v. Lux, 146 Ark. 397, 225 S. W. 653. In the case last cited the court said that gross inadequacy of price, although not controlling, is a circumstance to be given much weight in deciding an issue of this kind.

In the present case the record shows that A. D. Cain had moved into the house of his mother at the time she executed-the deed to him in December, 1921. It is true that he testified that she was mentally competent, and that there was no consideration for the deed except the one dollar which was recited in the deed. He testified, however, that he furnished his mother with supplies from that time until the time of her death in 1926, and generally looked after her after he moved out of her home. The fact remains, however, that he moved out of the house soon after she executed the deeds to him, and that he never paid her doctor’s bill nor any part of her funeral expenses. While he paid the taxes on the lands, he received the rents and profits from them, and some of the witnesses testified that it was understood that he was to support his mother and care for her until she died. She was old and helpless at the time she executed the deeds, and doubtless did so with the. expectation that her son would continue to live with her and care for her until she died. The chancellor found that he did not do so, however; and the- evidence shows that she suffered much from neglect during the last two years 'before she died. Under these circumstances it cannot be said that the chancellor erred in finding this issue against A. D. Cain and in decreeing that the deeds executed to him by his mother, Mrs. Susan Cain, in December, 1921, to the lands in controversy, should be canceled and set aside.

We find no reversible error in the decree of the chancery court, and it will therefore in all things he affirmed.


author: Smith, J.

text:
    Desha v. Independence County Bridge District No. 1.
    Opinion delivered May 20, 1929.

      Cole & Poindexter, Charles W. Mehaffy, John E. Miller, and Cul L. Pearce, for appellant.

      Ernest Neill and S. M. Casey, for appellee.
   Smith, J.

By special act No. 338 of the 1925 session of the General Assembly (Acts 1925, page 977), Independence County Bridge District No. 1 was created for the purpose of constructing a bridge across White River at or near Batesville. The district was unable to acquire the right-of-way, and it became necessary to condemn it, and a suit for that purpose was brought pursuant to § 3 of the act. Judgment was rendered in the suit in favor of the landowner for the property so condemned in the sum of $3,040. This judgment was reversed on the appeal to this court, and the opinion then rendered states fully the facts out of which the present appeal arises, and it will be unnecessary to repeat them. Desha v. Independence County Bridge Dist. No. 1, 176 Ark. 253, 3 S. W. (2d) 969. As stated in the former opinion, the landowner whose land was condemned as a site for the bridge owned lands on both sides of the river, and operated a ferry across the river at or near the bridge site. At the time of the trial from which this appeal comes the bridge had been completed and was in operation, and the value of the ferry franchise had been destroyed, and the ferry was no longer operated.

The court charged the jury that the landowner was entitled to recover as damages the market value of the land taken, and “market value” was defined. The jury was also told that the term market value “includes the value for any and all legitimate purposes for which it may be adapted. If, by reason of its location, its natural or physical advantages, and its intrinsic character, it is peculiarly adapted and valuable for a particular use, such as a site for a ferry, or a bridge, such value should be considered in determining its market value.”

The court also charged the jury that: “In determining the damage to which you believe the defendant Desha is entitled by reason of the taking of his land by the plaintiff bridge district, you should not consider any loss or damage he may have sustained or will sustain by reason of the loss of revedme or income from the ferry on accoimt of the construction of the bridge.” Specific objections were made to the portion of the instruction appearing in italics, which raise the questions hereinafter discussed. The court had previously refused to give instructions numbered 1 and 2 requested by appellant, which read as follows:

“1. You are instructed that any person owning lands fronting on opposite banks of a navigable stream in this State is entitled to the sole and exclusive right of ferriage at such place, and when a ferry is once legally established and «01111111168 to operate in the manner provided by law, the owner thereof cannot be deprived of said right and the resulting benefits without compensation therefor.
“2. You are instructed that, in fixing the amount of damages to be awarded to the defendant, you should consider the right or franchise to operate the ferry as a permanent and continuing right, and not subject to destruction or condemnation by legislative act without just compensation to the owner. ’ ’

The jury returned a verdict in favor of the landowner for $6,000, and there appears to be no question that this is full compensation for all damages which he sustained, except for the loss in value of the ferry franchise. Appellant reviews the legislation of this State in regard to ferries and the decisions of this court construing this legislation; but we do not do so, for the reason that the plaintiff improvement district did not propose to establish, and has not, in fact, established, another ferry, nor has it condemned or taken appellant’s franchise to operate the ferry. It is, of course, an undisputed fact that by the construction of the bridge another way to cross the river has been created, which the traveling public uses, and the value of the ferry franchise has been thereby destroyed. Must the bridge district, for this reason, compensate the ferry owner for the loss of profits and future earnings thus sustained? The answer to this question is decisive of the present appeal.

Witnesses for appellant were asked what, in their opinion, was the market value of appellant’s land, and various answers were given, the value being placed at from $25,000 to $60,000, but the witnesses who so answered all admitted that this valuation was based upon the assumption of the continued permanent earnings of the ferry under an undisturbed franchise. When told by the court that this was not the proper basis to establish the market value of the property, these witnesses revised their estimate, and exceptions were saved to these rulings of the court.

This last-mentioned ruling of the court conforms to the opinion on rehearing on the former appeal, where it was said that “a majority of the court are of the opinion that the evidence as to the amount of revenue or income from the ferry was not competent testimony.” By this it was meant that the market value of the land taken for the bridge could not he determined by taking into account the earnings of the ferry as a right in perpetuity. It was not contended that there was any interference with or diminution in the earnings of the ferry until after the completion of the bridge. This was not a proceeding to condemn and acquire the ferry. Had this been a suit to acquire the ferry for some agency of the State, its earning power would have been a proper matter to take into account in determining its value. But such is not the purpose of the suit. The suit is one to condemn and acquire a site for a bridge. And while it is true, as has been said, that the exercise of this .right and the construction of the bridge has destroyed the value of the ferry franchise, this is an incident to, and not the purpose of, the suit.

Appellant makes the fundamental mistake of assuming that his right to the ferry franchise, resulting from his ownership of the land on the opposite bardes of the river, is a right in perpetuity. It is not. In the case of McClintock v. White River Bridge Co., 171 Ark. 943, 287 S. W. 163, the owner of a ferry franchise made substantially the same contention against the owner of a bridge franchise, it being true in that case, as it is in this, that the erection of a bridge destroyed the value of the ferry franchise, but it was there said: “In the case of White River Bridge Company v. Hurd, 159 Ark. 652, 252 S. W. 917, one of the contentions was that the toll-bridge privilege was exclusive, and, when conferred by the county court, that court could not thereafter grant a ferry franchise to any one to operate a ferry within a mile of tlie bridge. We upheld this contention, and cited § 10258, C. & M. Digest, concerning the exclusive toll-bridge privileges. And in the case of McClintock v. Bovay, supra (163 S. W. 388), we cited the case of White River Bridge Co. v. Hurd, supra, and stated: ‘The effect of that decision was to hold that a franchise to bnild a toll-bridge is superior to a ferry franchise, for the reason that a 'bridge is more to the convenience and benefit of the public, and for that reason the statute, in express terms, had made the bridge franchise exclusive. The fact that appellant has obtained his license from year to year (to operate a ferry) does not deprive the county court of the power, under the statute, to grant an exclusive privilege in that' territory to construct and operate a toll-bridge.’ ”

Appellant points out that he and his predecessors in title have for nearly a century operated the ferry in question; but, while this is true, it is also true that this was done under the annual grant of a right so to do by the order of the county court. Appellant has never at any time been granted nor has he ever acquired a franchise in perpetuity. The franchise, if it may be called such, is not only granted from year to year, but, as appears from the McClintock case .supra, and the oases there cited, the grant was provisional, there being a reservation always of the right to authorize a bridge franchise when the public convenience required that this be done. There has been no infringement of any vested right of appellant, and he is not entitled therefore to have damages assessed in his favor as if there had been.

The very recent case of Larson v. South Dakota, 278 U. S. 429, 49 S. Ct. 196, is in point. In that case the Supreme Court of the United States considered the of a ferry franchise granted under the laws of the State of South Dakota, which are not substantially different from our own on the subject of ferry franchises, except that the lease, as it is called in that State, is for a period not exceeding fifteen years, instead of an annual grant, as with us. The owner of the ferry franchise in that case contended that the erection of a bridge, under the authority of an act of the General Assembly of the State, destroyed the value of his ferry franchise, and he brought suit in the Supreme Court of the State against the State. Larson v. State, 51 S. D. 561, 215 N. W. 880. Construing the meaning of “exclusive ferry franchise” as authorized by the statute of that State, the Supreme Court of the State said:

“All that is contemplated by the statute and all that was granted by the plaintiff’s leases was the right to operate a ferry, together with a prohibition upon the granting boards from granting other ferry leases within the granted area during’ the period. * * * Nowhere in the statute can be found or implied a provision that the State was binding itself not to construct, nor authorize the construction of, a bridge across the river within the 4-mile area, or not to permit carriage by aviation across it. The fair and reasonable construction of the statute is that it refers solely to transportation by ferry.”

On'the appeal to the Supreme Court of the United States, Chief Justice Taft, after pointing out that the question, whether a statute authorizing the construction of a bridge within the limit of the 4-mile area of an exclusive ferry franchise impaired the obligation of a contract, was one which invoked the independent consideration of that high court as to what contract existed and its construction, proceeded to consider the meaning of the term “exclusive lease,” employed in the statute of that State. After a review of numerous cases, it is stated that the contention that an exclusive ferry franchise should be construed to cover all methods of travel and transportation across the water is rejected in most cases, and that, by the weight of authority, it could not be said that an exclusive grant of a ferry franchise, without more, would prevent a Legislature from granting the right to build a bridge near the ferry, and he further said: “Following the cases in this court in its limited and careful construction of public grants, it is manifest that we must reach in this case the same conclusion. ’ ’

We conclude therefore, that it was not error for the court to refuse to permit appellant to prove the value of the land based upon the assumption that his ferry franchise was perpetual and inviolable, and the judgment must be affirmed, and it is so ordered.


text:
    St. Louis-San Francisco Railway Company v. Sub-District No. 1 of Drainage District No. 11.
    Opinion delivered May 20, 1929.

      A. F. Barham, E. T. Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

      James G. Coston and J. T. Goston, for appellee.
   Smith, J.

By appropriate orders of the county court of Mississippi County, a drainage district, known as Subdistrict No. 1 of Drainage District No. 11 of that county, was created. The subdistrict is substantially identical with the original district, and its primary purpose appears to have been to reopen, clean out and to enlarge and deepen the ditches of the original district. It does not appear just when the original district was completed, but testimony was offered on behalf of the railway company, which filed protests against its assessments, that it had paid taxes in the original district for sixteen years.

The subdistriet, as it is called, contains 29,201 acres of land. The main line of the St. Louis-San Francisco Railway Company runs through the district for 8.4 miles and a branch line for a distance of 4 miles. The railway company protested in the county court, upon the organization of the subdistrict, and obtained there a substantial reduction in its assessments, but, feeling aggrieved that no greater reduction had been made, appealed to the circuit court, and, failing there to obtain additional relief, prosecuted this appeal to this court.

The Bank of Commerce & Trust Company, as trustee for the Menasha Outing Club, also filed protests in the county court against the assessments of its lands, and appealed from the order of the county court refusing to reduce its assessments. On the appeal to the circuit court a reduction of fifty per cent, was made in the assessment of a quarter section of the trustee’s lands, hut, as no other relief was given, the trustee has appealed.

These protests were heard together in the county and circuit courts, and come here as a single appeal. No other property owners in the district appealed.

The chief objection to the assessments complained of is that they were made arbitrarily and without reference to the relative benefits to he derived from the improvement, and hv commissioners as a hoard of assessors who were ignorant of and indifferent to the facts upon which an equitable assessment would have to he based.

There are three commissioners in the district, but one of them was not called as a witness. The other two testified that they had been born and reared in the district and knew intimately every part of it. The commissioners decided that the lands should be assessed at from $4 to $60 per acre, the highest lands and those with the best natural drainage to have a betterment assessment of $4 per acre, while the lowest and wettest lands should be assessed at $60 per acre. Other lands were graduated between these extremes. In order to determine the classification of the respective tracts, the engineer of the district was ordered to run levels, and this was done, and the result of this survey was indicated on a map of the district. Because the assessment of benefits to be imposed was in most cases a mere matter of applying these figures of the engineer, it is earnestly insisted that the assessments were in fact made by that officer, and not by the commissioners, who were charged with this duty under the law.

This, does not follow. It is true the assessments were determined by the facts as found by the engineer, but the commissioners were entitled to have the benefit of this information in determining the elevations and the relative benefits; and, while it is true that the calculationS determining the assessment of each tract were made by the engineer, this was done under instructions from the commissioners, who had previously determined the basis of the assessment, and it was therefore the assessment of the commissioners. After these calculations had been made and the assessments arrived at, the commissioners met and spent about half a day verifying the assessments as compiled by the engineer.

It was shown by the commissioners who testified that, in addition to their previous long familiarity with the lands of the district, they had made special observations of portions of the district, and had in a number of cases changed the assessments made by the engineer, where they thought it proper to do so. In connection with this work, one of the commissioners testified that he spent three days on his horse riding over the district But, at last, no information could be as accurate or-was as necessary as that revealed by the levels which the engineer had run.

We conclude therefore that the court below was warranted in finding against the contention of the protesting property owners that the commissioners delegated their duty to assess the lands to the engineer.

The showings was made that the main line of the railroad ran through some of the highest lands in the district, yet the right-of-way of its main line was assessed at $4,250. The railroad right-of-way is 100 feet wide, and it was show that the acreage of its main line right-of-way was 98.6 acres, which would make an average assessment -of $43.10 per acre. The four miles of the branch line had an acreage of 48.4 acres, which was assessed at $750, which is $15.49 per acre. The total acreage of both the main and branch lines is 147 acres, and the total assessment of benefits is $5,000, making the average assessment per acre $34.01.

The district contains no cities or towns, but there are three villages in it, and the assessments there were on a'basis of $60 per acre, although the property in the villages was assessed as lots. These villages are situated on the highest lands in the district, but the commissioners stated that the right-of-way of the railroad main line and the town lots were given an assessment higher than the elevation of these properties would otherwise have taken because of the intensive use made of them. We are unable to say that this was an arbitrary thing to do.

There was testimony on the part of the railway company to the effect that its tracks were laid upon an embankment higher than the surface water ever reached, and that it maintained ditches along its right-of-way, and it insists that this testimony establishes the fact that it can receive but little 'benefit from the proposed improvement. It was shown, however, that the railroad ditches drained into a large natural watercourse known as “Frenchman’s Dayou,” and that the improvement district furnished an outlet for the waters of this bayou. The general course of the drainage ditches is southwest,- and the main line of the railroad runs in the same direc-' tion. The railroad crosses Frenchman’s Bayou near the west boundary of the district, and the maps of the district indicate that from this point south the 'bayou affords no drainage to the railroad right-of-way; but, although the drainage district extends two miles south of this point of intersection of the railroad and the bayou to the south county line, the railroad is excluded from this portion of the district, notwithstanding the line of the railroad right-of-way is the boundary of the district to the county line, so that the portion of the railroad south of the point of intersection of the railroad and the bayou is not included in the district.

An improved concrete road constructed by Road Improvement District No. 1 of Mississippi County, which runs through this drainage district, was not assessed on an acreage or any other basis, and it is insisted that this failure increases proportionately the amount of taxes all other lands in the district will pay, and invalidates the entire assessment.

The recent case of Board of Commissioners of Buffo Drainage District v. Arkansas County, ante, p. 91, is against this contention. The drainage district in that ease, like the one in the instant case, was organized under §§ 3607 et seq., 0. & M. Digest, known as the alternative system of drainage districts, and it was there held that the statute under which the drainage district was organized failed to provide any method of assessing or collecting taxes against county roads.

The assessment records, containing the description under which the various tracts of land have been assessed, appear in the record, and the motion for a new trial assigns as error the alleged fact that numerous descriptions are so fatally defective that the tax lien could not be enforced against lands thus described, in the event taxes were not paid on them.

This assignment of error might be disposed of by saying that the motion for a new trial does not call to our attention any particular description which is said to be fatally defective, but of the descriptions discussed it may be said a number referred to private surveys. So far as the record before us shows to the contrary, these descriptions may be good and sufficient. The statute provides for the survey of lands not in cities or towns into subdivisions so that the descriptions employed in the Government surveys may not always be essential. Provision is made in § 9932, 0. & M. Digest, for a record book, to be entitled “Becord of Surveyors’ Plats and Notes,” and by § 9933, 0. & M. Digest, it is provided that assessments may be made with reference to these surveys. See also § 9928, C. & M. Digest.

Neither of appellants complain that their property is assessed under descriptions which, if employed • in their receipts, would not afford them protection; but their complaint is that their assessments may be increased because other owners may not be required to pay because of defective descriptions.

Under act 661 of the Acts of 1919 (General Acts 1919, page- 457), it is provided that any ten property owners in an improvement district may petition the county court to cure any defects or irregularities in the organization of the district, and this act may he employed, if found necessary, to collect taxes from delinquent owners. Besides, act 203 of the Acts of 1927 (Acts 1927, page 680), entitled,- “An act in aid of drainage districts,” provides that commissioners of drainage districts shall have power to make re-assessments each year. Moreover, it is not questioned that nearly ninety per cent, of the land in the district is assessed under descriptions which are unobjectionable.

So far as the lands of the appellant hank as trustee are concerned, it does not appear that any just cause of complaint exists that any discrimination was practiced, as these assessments appear to be similar to those of all other landowners. As has been said, the court found that an error had been made as to one quarter section of the bank lands, and a fifty per cent, reduction in that assessment brought it in line with other assessments.

It is earnestly insisted that error was committed in overruling a motion for a continuance. The ground for this motion is that the levee of the St. Francis Levee District, protecting all the property in the district from the annual overflow of the Mississippi River, forms the eastern boundary of the district. In the southeast portion of the district the river makes a wide bend, and it is alleged that it is proposed to shorten this levee line by running the levee across, instead of around, the bend. If this is done, that portion of the land left outside of the levee can then receive no benefits from the drainage ditches, as the new levee will make it impossible for the lands outside of the levee to drain into the ditches. In overruling this motion for a continuance, the court evidently took the view that the construction of this new levee was uncertain, and the -continuance was not asked by the landowners whose lands would he excluded from the benefits of the drainage district if this new levee were built. One of the commissioners who testified in the case was shown to be one of the largest landowners in that area. It is not contended that the construction of this levee will affect the benefits which the property of the appellants will derive from the proposed improvement, and there was therefore no prejudice, so far as they were concerned, in overruling the motion for a continuance.

Certain other objections to the district are discussed, but they relate to matters which have heretofore been decided adversely to the contention of appellants; and, as no error appears in the record, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Langford v. Griffin.
    Opinion delivered May 20, 1929.

      Patterson, Patterson & Patterson and Hugh Basham, for appellant.

      Jesse Reynolds, for appellee.
   Humphreys, J.

This suit was instituted in the chancery court of Johnson County by appellant against ap-pellee to enjoin him from.closing or obstructing an alley 15 feet wide, running east and west between lots 6 and 8, block 5, as shown by the original plat of the city of Clarksville, Arkansas. According to the plat, the lots, as well as the alley in question, fronted on Fulton Street, and the alley intersected another alley running north and south in the rear of lot 8. Appellant alleged in his complaint that he was the owner of lot 8, and that appellee, who was the owner of lot 6, had constructed a garage in the west end of the alley, and was threatening to put a fence across the front or east end thereof.

Appellee filed an answer, admitting that he was in possession of and exercising acts of ownership over the alley, but alleging that he and his grantors had acquired title thereto by continuous, adverse possession, which began before the passage of the act of May 28,1907 (§ 7570, Crawford & Moses’ Digest), prohibiting the acquisition of streets and alleys by adverse possession.

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

The record reflects, according to the undisputed testimony, that lot 8 was owned by A. P. May and lot 6 by John M. Davis in the year 1895; that Davis purchased and procured a deed to the alley in question from the city of Clarksville, and inclosed it with a fence during that year; that in 1896 A. P. May brought a suit in the chancery court of Johnson County against John M. Davis and the city of Clarksville to cancel the deed and to enjoin John M. Davis from obstructing the alley, the trial of which resulted in a decree canceling the deed and perpetually enjoining John M. Davis from inclosing or obstructing the alley, and that, pursuant to the decree, the alley was opened in the year 1896.

The record reflects a dispute in the testimony as to whether the alley was subsequently closed.

In. 1898 John M. Davis conveyed lot G to his mother, Emma Davis, for life, with reversion to him at her death. She died early in the year 1927, and in August of that year John M. Davis conveyed lot 6 to appellee by warranty deed.

According to the testimony introduced by appellee, John M. Davis, who owned the reversionary interest in lot 6, and his mother, who owned a life estate therein, agreed with A. M. McKennon, who then owned lot 8, to close the alley, and that, pursuant to the agreement, it was closed, and never thereafter opened to use by the public; that Emma Davis used it exclusively during her life in connection with lot 6, and that, upon her death, John M. Davis entered into possession thereof and continued to hold the possession until he sold lot 6 to ap-pellee, at which time he delivered possession thereof to him; that appellee and his grantors acquired title to the alley by continuous and adverse possession thereof from 1902 to the present time.

The testimony introduced by appellant was to the effect that the alley was never inclosed or claimed by any one after the rendition of the injunction decree against J ohn M. Davis in 1896 until long after the passage of the act above referred to.

Under the facts detailed above, appellees’ claim of title to the alley is necessarily a claim of title thereto by adverse possession of himself, John M. Davis and John M. Davis ’ mother, Emma Davis. His deed from John M. Davis in 1897 was for lot 6, and did not embrace the alley. If he obtained possession of the alley from John M. Davis and John M. Davis succeeded his mother in possession thereof, and the two of them inclosed the alley in 1902 under an agreement between John M. Davis and A. M. McKennon, who owned lot 8 on the south side of the alley, it was all in violation ' of the decree rendered against J ohn M. Davis in favor of A. P. May in 1896, permanently enjoining him from entering into possession of the alley. It is argued that neither appellee nor Emma Davis were parties to the injunction suit, and were not and are not bound by the decree rendered therein. In this contention appellee is mistaken, for the decree was binding upon John M. Davis and all persons in privity of estate with him. Appellee’s claim of title to the alley is based upon his privity in estate thereto with John M. Davis, else he has no claim at all. As John M. Davis was enjoined from obstructing* or entering into possession of' the alley, the continuity of appellee’s possession was necessarily 'broken. In the face of the decree, he could not acquire title by continuous, adverse possession through John M. Davis.

Appellee states, however, that the trial court dismissed appellant’s complaint because he failed to show that he had suffered or would suffer any special damages to his lot not suffered by the public by reason of the alley being closed. In support of the theory that an individual cannot maintain an injunction to prevent the acquisition of an alley without first showing some special or peculiar injury to his own property by reason thereof, appellee cites the cases of Packet Company v. Sorrels, 50 Ark. 466, 8 S. W. 683; Texarkana v. Leach, 66 Ark. 40, 48 S. W. 807, 74 Am. St. Rep. 68; Dickinson v. Arkansas City Improvement Co., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170; Simon v. Pemberton, 112 Ark. 202, 165 S. W. 297. The doctrine contended for is recognized in the cases cited, but in the instant case it is apparent that the closing of the alley would deprive appellant .of the right of ingress to and egress from his lot by way of the alley, in addition to the .injury suffered by the public. Appellee argues that the appellant could not suffer a peculiar injury to his lot on this account, because he had access to same from Fulton Street and from another alley in the rear thereof. The fact that appellant had other entrances to his lot would mot keep him from suffering special and peculiar damages if his entrance by the way of the alley in question were destroyed. The deprivation of any entrance to or exit from one’s property is a special or peculiar damage to it mot suffered by the public in general.

On account of the errors indicated the decree is reversed, and the cause is remanded with directions to enter a decree permanently enjoining appellee from in any way obstructing or closing the alley in question.


text:
    Crawford v. Moore.
    Opinion delivered May 20, 1929.

      Brewer & Cracraft, for appellant.

      Graham Moore and W. G. Dinning, for appellee.
   Humphreys, J.

Appellant brought this suit in the circuit court of Phillips County against appellees to recover $546.76, an alleged balance due for supplies which appellant furnished tenants on farms in the State of Mississippi, operated by A. W. Paslay and his wife, V. H. Paslay. The supplies were charged on the books of appellant to Y. H. Paslay, but appellant alleged, as a ground for recovery ag’ainst appellees, that they were partners of the Paslays in the operation of the farms, and liable to him under their partnership agreement. E. P. Moore was president of his co-appellee, Interstate Grocer Company. The written contract referred to and made the basis of appellant’s alleged cause of action was originally entered into between the Paslays and E. P. Moore, on the 31st day of December, 1924, and it, together with the addenda thereto, is as f oIIoavs :

“This contract of employment, made and entered into this day and year hereinafter named, by and between A. W. Paslay and Vivian H. Paslay, his wife, parties of the first part, and E. P. Moore, party of the second part, witnesseth: Whereas , the parties of the first part are now indebted unto the Interstate Grocer Company of Helena, Arkansas, in large sums, and the condition of the first parties is such that they are not able to make payment iof said amount at this time, and will not he able to do so until such times as they have been able to earn the necessary funds by farming operations; whereas, it is the desire of all parties that the first parties operate one or more places in the State of Mississippi during the year 1925 and the succeeding years until such times as said indebtedness can be paid; and whereas, the second party is now in a position to assist the first parties in connection with the farming operations above named, and in connection with financing their operations and providing them with the necessary equipment to enable them to successfully operate said plantations, and assist them in the marketing of such crops as may be raised on said plantations, all of which the second party hereby obligates himself and agrees to do; now therefore, in consideration of the agreements and undertakings on the part of the second party, the first parties agree to use their best efforts in operating the said plantations for the year 1925 and succeeding years until the indebtedness due and owing said Interstate Grocer Company is fully paid and discharged, and will devote all of their time and attention to the end that said operations may be profitable, and will operate the same in accordance with the suggestions as to the financing and marketing as may he made from time to time by the second party, and upon payment of the whole of said indebtedness that may be now due, or may be hereafter owing to the said Interstate-Grocer Company by the joint efforts of all parties hereto, then and in that event all of the personal property of every kind used by the first parties in connection with the operation of said plantations, and all unsold crops of every kind, shall -be deemed the joint property of the first parties and the second party hereto, and the first parties owning one-half of the said property and the second party the other half, it being understood that the one-half interest in said property shall be taken and considered as compensation for all services to be rendered by the second party in connection with the operation of said plantations, until such time as the indebtedness to the Interstate Grocer Company is fully paid.
“The first parties agree and obligate themselves to apply all funds arising from the operations of said place, aside from the amount required to pay rent and reasonable living expenses-, toward the payment lof the indebtedness to the said Interstate^ Grocer Company, and the first parties agree and obligate themselves to deliver all crops of every kind that may be sold from said place or places over to the said Interstate Grocer Company, for the purpose of applying the proceeds toward the satisfaction of their debt. The first parties agree to keep an inventory of all personal property used in connection with the operation of said place or places, and also an appraisement of each article used, and to deliver a copy of such inventory and appraisement to the second party herein.
“It is further agreed that, in the event it may appear at any time that the personal property used in connection with the operation of said place or places is not being properly oared for, or that same can be sold for a sufficient amount to pay off and discharge the indebtedness that may be then owing the said Interstate Grocer Company, then and in that event tlie parties hereby agree that said property he sold and the proceeds applied toward the payment of the indebtedness owing the said Interstate Grocer Company, and the balance, if any, be divided between the parties hereto in equal sums. It is further agreed that if the said indebtedness has not been paid within five years from the date hereof, then and in that event either of the parties hereto shall have the rig’ht to cause said personal property then owned by the second party to be sold, and the proceeds applied toward the satisfaction of the indebtedness owing the Interstate Grocer Company, so far as it may be necessary for that purpose, and the balance, if any, shall be divided between the parties hereto in equal shares.
“It is agreed hereby that the parties of the first part shall have the right to remove the said property to the State of Mississippi, and that the second party shall have a lien on. said personal property for such amount as may be due him, and for services to be rendered, and that the first parties shall not sell ¡or dispose of any part of said property without the consent in writing of the second party.
“Witness our hands this the 31st day of December, 1924.
“V. H. Paslay,
“.A. W. Paslay,
“Parties of the first part.
“E. P. Moore,
“Party of the second part.
“P. S. Reasonable living agreed to be $125 per month.
‘ ‘ These addenda made to the attached contract, bearing date of December 31, 1924, by and between the said V. II. Paslay and the said A. W. Paslay, as parties ¡of the first part, and E. P. Moore, party of the second part, witnesseth: It is agreed by and between the said parties that the terms, stipulations, conditions, limitations and provisions mentioned 'and set out in said contract shall apply and become binding on all the parties hereto with reference to any other or additional lands that may be bought, leased or rented during the five-year period mentioned in said contract, and also with reference to the management, operation, or control of all such lands that may be purchased, rented or leased in the name of the first parties or either of them, in like manner and with like force and effect as if referred to and embraced in the said original contract.
“Witness our hands and seals this the..day of.. 192-5.
“V. H. Paslay (Seal)
“. (Seal)
“First Parties.
“E. P. Moore (Seal)
‘ ‘ Second party. ’ ’

Each of the appellees filed a separate answer to the complaint, denying the alleged partnership, or that the written contract and -addenda thereto constituted a partnership.

The cause was .submitted upon the pleadings, the written contract with the addenda thereto, and other testimony introduced by the parties, at the conclusion of which the trial court instructed the jury to return a verdict in favor of appellees, and rendered a judgment in accordance with the verdict, from which is this appeal.

The written contract with the addenda thereto, made the basis of appellant’s suit, is unambiguous, -so it became the duty of the trial court to declare its purpose and intent. The construction thereof was a question for the court and not for the jury. By directing a verdict for appellees and dismissing appellant’s complaint the trial court ruled, and correctly -so, that the written instrument did not constitute a partnership agreement between the parties thereto. An analysis of the contract reflects that the parties thereto expressly declared it to be one iof employment. By the terms thereof E. P. Moore agreed to assist the Paslays in financing the farming operations and in marketing the crops, for which services he was to receive an equal joint interest with the Paslays in the personal property and unsold crops remaining in the hands of the Paslays, after their debt to the Interstate Grocer Company should be paid. The purpose of the contract was clearly to enable the Paslays, with the assistance of E. P. Moore, to pay their indebtedness to the Interstate Grocer Oompany. It contained no provision that Moore should share in the losses or share in the profits as profits. Under the terms of the contract, Moore agreed to assist the Paslays in financing the farming* operations and in marketing the crops raised on the farms, and in payment for such services was to receive an equal jioint interest with the Paslays in the personal property and unsold crops after the payment of their debts to the Interstate Grocer Company. An agreement that one shall receive for his services a part of the profits of the business does not make him a partner in the venture. Such an agreement is one of employment, and not of partnership. Haycock v. Williams, 54 Ark. 384, 16 S. W. 3; LaCotts v. Pike, 91 Ark. 26, 120 S. W. 144, 134 Am. St. Rep. 48. The necessary essentials to constitute a partnership agreement do not appear in the written contract. It is a contract in the nature of a joint venture only.

Appellant contends, however, that, though he sought to recover from appellees the account in question on the ground that they were partners with the Paslays, yet, under the terms of the contract, E. P. Moore was directly liable for the indebtedness on account of his agreement to assist the Paslays in financing the farming operations. He argues that the trial court should have treated the pleadings as amended, and should have rendered a judgment in any event against E. P. Moore individually, because he undertook to assist the Paslays in financing and in providing the necessary equipment to operate the farms. We do not think an undertaking of this kind meant that Moore should pay all of the bills that Paslay might make in the operation of the farms. Had this been the meaning of the contract, Moore would have been the employer and the Paslays the employees, whereas the contract provides that the Paslays are the employers and Moore the employee.

No error appearing, the judgment is affirmed.