text:
    Newell Contracting Company v. Lindahl.
    Opinion delivered March 10, 1930.

      McMillan & McMillan, for appellants.

      J ohm, L. McClellan, for appellee.
   Smith, J.

Appellee, plaintiff below, brought this suit to recover damages to his automobile resulting from a collision with a truck driven by L. D. Corn. The complaint alleged that the defendants, Newell Contracting Company and Henry Allison, had employed Floyd Clover to use his and other trucks in hauling and placing gravel on a public highway which was being improved under a contract with the State Highway Department, and that Clover employed Corn to drive and use his truck for the same purpose.

In the separate answer of the Newell Contracting Company and Allison, they alleged that “It is true that these defendants had a contract with the State Highway Department of the State of Arkansas for surfacing with gravel a certain part of State Highway No. 67 between Malvern and Donaldson, in Hot Spring County, Arkansas,” and it was on this road the collision occurred. They then adopted the answer of Clover and Corn, denying that the injury had been occasioned by Corn’s negligence, and alleging that appellee had been guilty of contributory negligence.

There is a controversy, which, for the reason hereinafter stated, we do not review, in regard to the opening statement to the jury of counsel for the defendants. It is insisted on the one hand and denied on the other that counsel then stated that the Newell Contracting Company had a contract with the Highway Department to do this work, and had sub-let a portion of it to Allison, who was doing the work as an independent contractor, and when testimony was offered to this effect the court refused to admit it upon the ground that the pleadings raised no such issue. A request was then made for permission to amend the answer to set up this defense, and an exception was saved to the action of the court in refusing to grant it. Under the circumstances we are unable to say that the court abused its discretion in this respect. Butler v. Butler, 176 Ark. 126, 2 S. W. (2d) 63; Old American Ins. Co. v. Deloney, 178 Ark. 1194, 13 S. W. (2d) 825; Hughes, etc., Co. v. McWilliams, etc., Co., 172 Ark. 79, 287 S. W. 580. But, as. the case is to be remanded for another reason, we think this permission should be granted upon the remand, if an offer to amend is made in apt time. ■

It is very earnestly insisted that the undisputed testimony shows that plaintiff’s own negligence caused or contributed to the collision, and that there can be no recovery for this reason. The testimony on the part of the defendants tends to establish this defense, but the conflict in the testimony which usually appears in cases of this character is present here. The testimony on the part of the plaintiff is to the effect that he was driving along a public road which had been graded and was being surfaced with gravel, and was being used by the public as the work progressed. That, as he met some wagons loaded with gravel and was passing them, going in the opposite direction, a truck driven by Corn drove rapidly between his car and the wagons, in the same direction the wagons were moving, and in a cloud of dust which had arisen the vision of all the drivers was obstructed, and a violent collision occurred, and plaintiff’s car was wrecked. Judgment was rendered in plaintiff’s favor for the damage to his car, from which is this appeal.

The cause of action was defended by the Newell Contracting Company upon the ground that Allison was an independent contractor; and by Allison upon the ground that Glover was also an independent contractor, and that they had no control over Glover or his employee as to the manner in which they should haul the gravel, and that the engineer of the Highway Department gave directions as to spreading it, and that the collision occurred while gravel was being hauled, and not in spreading it, but that they were without authority to direct the manner in which it was hauled or spread.

The recent case of Ellis & Lewis v. Warner, 180 Ark. 20 S. W. (2d) 320, arose out of facts sufficiently similar to those of the instant case to be controlling as to the law upon the question whether Allison and Glover were independent contractors, and we adhere to the statement of the law there appearing, and we do not again review the authorities upon this question, as it was there fully considered. The testimony in the instant case was sufficient to present the issue for the decision of the jury whether Allison and Glover were independent contractors, and the instructions on this issue appear to conform substantially to the law as announced in the Ellis case, supra.

We would therefore be constrained to affirm the judgment of the court below except for the error appearing in instructions numbered 2 and 4, given at the request of the plaintiff and over the objections of all the defendants. Instruction numbered 4 reads as follows: ‘ ‘ You are instructed that it is the law of the road that drivers in meeting each other shall bear and keep to the right in passing, and, if you find from a preponderance of the evidence in this case that the defendant, L. D. Corn, negligently and carelessly failed to bear or keep to the right when attempting to pass the plaintiff, and on account of his negligence and carelessness in so failing to keep to the right, as aforesaid, a collision resulted between the car of plaintiff and the truck driven by said defendant, and the plaintiff’s car was damaged as a result of said collision, then it will be your duty and you are instructed to find for the plaintiff.” Instruction numbered 2 is of similar purport.

These instructions undertook to tell the jury the conditions under which a verdict should be returned for the plaintiff, and they should therefore have been each com-, píete in itself. Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676.

These instructions told the jury under what conditions they might find the defendant Corn guilty of negligence, and then, if the collision occurred on account of this negligence, to find for the plaintiff. It was, of course, necessary for the jury to find that Corn was negligent before returning a verdict for the plaintiff, but this showing alone was not sufficient to support a verdict even against Corn. It was essential also that it be found that plaintiff’s negligence did not contribute to the damage to his car, and the instructions did not impose this requirement. That the instructions in this respect were erroneous is elementary law and requires no citation of authority.

For this error the judgment must be reversed, and the cause remanded for a new trial, and it is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Rector v. Hill.
    Opinion delivered March 10, 1930.

      Sam E. Leslie, for appellants.

      Feazel ■& Steel, for appellees.
   Humphreys, J.

Appellees purchased lots 13, 14, 15, 16 and 17, in block 5, of the incorporated town of Nashville, Arkansas, for $5,000, from W. A. Beauchamp, executor of the last will and testament of J. N. Rector, deceased, under authority conferred by the testator upon his executor in the second paragraph of the will, which is as follows:

“And I hereby desire1 that, without the necessity of legal action or sanction, my executor be authorized and empowered to make, execute and complete any and all transfers and deeds of conveyance necessary to fully and effectually control, manage and dispose of or sell or alienate any or all of my real or personal estate, if such should’be necessary in the discharge of his duties.”

The executor was also made a party defendant, and filed a separate answer expressing a willingness to have the will construed, but agreeing with appellees that the will conferred full power upon him to sell and convey the real estate.

Appellants filed separate answers expressing a willingness to have the will construed, but joined issue with appellees and the executor as to his authority to sell and c onvey said real estate.

The cause was submitted to the court upon the pleadings and testimony adduced by the parties, which resulted in a decree that it was within the authority of the executor to sell and convey the land to appellees and quieting their title thereto against appellees, from which is this appeal.

Appellant contends that paragraph three of the will bequeathing one-half of all the testator’s property to his child, Mary Ellen Rector, and vesting same in her absolutely when she should become twenty-one years of age, and bequeathing his wife, Della Lambert Rector, one-half of all his property, during her natural life, or as long as she remained his widow, and directing that at her death all the property so bequeathed should be given to his child, Mary Ellen Rector, and further providing that in the event of the marriage of his wife she should be given absolutely one-third of the personal property at such time belonging to his estate, and that the real property at such time belonging to his estate should vest in his child, Mary Ellen Rector, is in conflict with the power and authority conferred in paragraph two upon said executor to sell and convey the real property belonging to said estate. The argument is made that paragraph three, devising the property as therein set out to his child and wife, is the last expression of the will and, in’ view of the conflict between the two paragraphs, must prevail.

The testator was engaged in the drug business and, incidental thereto, quite extensively in the real estate business. His executor had been in his employment for about thirty years, assisting him in his business, and, owing to his illness the last fifteen years, had been his chief adviser and manager of his business. In opening the second paragraph of the will, the testator expressed a desire that the property should be kept intact as far as possible and that the executor should continue the business just as he had done as long as he could possibly do so, handling the income just as he would have done, and then providing that he might sell or alienate any or all of the property of the estate if it should be necessary in the discharge of his duties. It is apparent that the intention of the testator was to confer a large discretion upon his executor who had been with him for many years, and the language used clearly meant that he might sell or alienate any or all of the property of the estate if in his judgment he deemed it necessary to do so. The correctness of this construction' of the second paragraph is emphasized by the fact that it is provided in the third paragraph that, in the event of the marriage of his wife, she should be given absolutely one-third of all personal property at such time (meaning the date of the marriage) belonging to his estate; and to his daughter, Mary Ellen Rector, all the real property belonging to the estate at such time. The second paragraph, thus construed, in no way conflicts with the third paragraph bequeathing the property of his estate to his wife and daughter. By reading both paragraphs together, it is apparent that the intention of the testator was to place all his property in a trust to be managed with broad discretionary powers by his executor, and that his devisees should take what was bequeathed to each at the expiration of the trust. It is unnecessary to a decision of the point involved in this ease to determine when the trust will expire. We think during the execution of the trust full and complete authority was given to the executor of the testator to sell and convey any property belonging to the estate if, in his judgment, he deemed it to the interest of the estate to do so. This was the construction placed upon the will by . the trial court, and the decree is therefore affirmed.


text:
    Claibourne v. Smith Rice Mill Company.
    Opinion delivered March 10, 1930.

      W. A. Lead, for appellant.

      G. W. Botts, for appellee.
   Humphreys, J.

This is an appeal from a default decree rendered against appellant on the cross-complaint of appellee in a suit brought by the Arkansas Rice Growers ’ Agricultural Credit Association in the Chancery Court of Arkansas County, Southern District, against W. B. Fulton, Missine Fulton, his wife, and appellee, to foreclose a mortgage executed to it by the Fultons on a rice crop for a balance due thereon, and to recover from appellee the value of the mortgaged rice purchased by it. The rice in question was raised by appellant, as the tenant of the Fultons, upon lands owned by Missine Fulton, and other lands leased by W. B. Fulton. Ap-pellee purchased the rice from appellant, Will Claibourne, and paid him therefor by check, one-half of which amount he paid to the Fultons, less $80 for their part of the threshing.

The Fultons filed an answer pleading payment of the mortgage indebtedness to the Rice Growers’ Agricultural Credit Association. Appellee filed an answer denying that it purchased rice from the Fultons mortgaged to the Rice Growers’ Agricultural Credit Association, and a motion to make appellant, Will Claibourne, a party; and a cross-complaint against him alleging that he and the Ful,tons had conspired to defraud it. by selling it mortgaged rice, and praying for judgment against appellant in whatever sum the Rice Growers’ Agricultural Credit Association should recover from it.

In accordance with the prayer of the motion and cross-complaint the following summons was issued by the clerk of the court and served by the sheriff upon appellant, to-wit:

“In the Chancery Court.
“Arkansas Rice Growers’ Agricultural Credit Association, Plaintiff, v. No. 2608, W. B. Fulton, et al., Defendants. Arkansas County, Arkansas in the Southern District thereof.
“summons.
“The State of Arkansas, to the sheriff of Arkansas County:
“You are commanded to summon Will Claibourne, io answer in twenty days after the service of the summons upon him motion to make Will Claibourne, party defendant, a complaint filed against him in the Chancery Court of Arkansas County, Arkansas, Southern District, and warn him tha,t' upon his failure to answer said complaint that same will be taken for confessed; and will make due return of this summons on the first day that said court is in session after twenty days after the date of the issuance hereof.
“Witness my hand and seal of said court, this 22d day of March, 1929. F. E. Stephenson, Clerk.
“Chancery court, summons, Arkansas Rice Growers’ Agricultural Credit Ass’n., Plaintiff, No. 2608, v. W. B. Fulton, et al., Defendants. Filed the 23d day of March, 1929. F. E. Stephenson, Clerk.
State of Arkansas, County of Arkansas — ss.
“On the 22d day of March, 1929, I have duly served the within writ hy delivering a copy, and stating the substance thereof, of the within named Will Claibourne
Ser..................................................................................$ .75
Mi..................................................................................... 1.40
Ret...........................................................:.......................10
$2.25
as I am herebv commanded; C. C. McAllister, Sheriff, ,7. R. G. D. S.”‘

The cause was tried upon the pleadings and testimony which resulted in a decree in favor of the Arkansas Rice Growers’ Agricultural Credit Association for a balance of $1,365.69 due upon the mortgage, and in its favor against appellee for $771.16, the value of the mortgaged rice purchased by it; and a,t a subsequent date a decree by default in favor of appellee against appellant on its cross-complaint against him for $771.16. The decree recites that the cause was submitted upon certain pleadings, naming them. There is no mention of anv pleading having been filed in the case by appellant, so it must be presumed from the recital in this decree that no answer to the cross-complaint of appellee was filed by him. The decree also recites that the cause was submitted upon the depositions of certain witnesses, naming them, and upon other proof. All of the depositions are omitted from the record, except the depositions of W. B. Fulton on recall, and of William Claibourne and Otto Leibrock. Tbe other proof submitted in the case according to the decree is also omitted from the record.

Appellant makes two contentions for a reversal of the decree, one being that the summons was insufficient to ■bring him into court, and the other that the evidence was insufficient to warrant the court in rendering a decree by default against him.

(1) The alleged insufficiency of the summons is because it failed to set out the name of appellee therein, and that the purport of the summons itself was notice to appellant to answer a complaint against him by the Arkansas Rice Growers’ Agricultural Credit Association, and not Smith Rice Mill Company, the appellee herein. It is true that the summons did not mention the Smith Rice Mill Company as the plaintiff, but it did state that in the case of the Arkansas Rice Growers Agricultural Credit Association against W. B. Fulton et al. a complaint had been filed against appellant, as well as a motion to make him a party. The summons gave the number of the case in which such complaint had been filed. By reading the pleadings in that case appellant would have discovered that the motion and complaint referred to were filed by the Smith Rice Mill Company, which was mentioned as a defendant in the case referred to in the summons. The summons was issued under § 1136 of Crawford & Moses’ Digest, which is as follows :

‘ ‘ The summons shall be directed to the sheriff of the county, and command him to summon the defendant or defendants named therein to answer, the complaint filed by the plaintiff, giving his name, at the time stated therein, under the penalty of the complaint being taken for confessed, or of the defendant being proceeded against for contempt of court on his failure to do so. The summons shall be dated the day it is issued, and signed by the clerk.”

A substantial compliance with this -statute was sufficient to give the court in which the case was pending jurisdiction over the-defendant mentioned in the original suit or over the defendant against whom a cross-complaint had been filed. 32 Cyc. 438. Appellant does not contend that ,the rule is otherwise, but makes the argument that the summons does not substantially comply with the statute. We think it is a substantial compliance with the statute. The case of Ex parte Cheatham, 6 Ark. 532, 44 Am. Dec. 525, cited by appellant, is not in conflict with our construction of the statute. In that ease no complaint was pending in the court out of which the summons issued, in which case William Cunnington was plaintiff and Robert Carrington was defendant. In the instant case a suit was pending in the court out of which the summons issued in which the Arkansas Rice Growers’ Agricultural Credit Association was plaintiff, and W. B. Fulton et al. were defendants, and in which the defendant mentioned therein, the Smith Rice Mill Company, filed a motion to make appellant a party and a cross-complaint against him praying in the alternative that, if the plaintiff in that case recovered judgment against it, then for a judgment over against him in its favor. It was impossible for appellant to have read the pleadings in the case mentioned in the summons without discovering the fact that a cross-complaint had been filed against him by one of the defendants in that case.

(2) Appellant’s further contention that the evidence was insufficient to warrant the court in rendering a judgment by default against him is, we think, without merit. The record does not purport to bring up all the evidence that was heard in the case, so it must be presumed by this court that the evidence was sufficient to justify the rendition of the decree by default against appellant. Hershy v. Baer, 45 Ark. 240; Matlock v. Stone, 77 Ark. 195, 91 S. W. 553; Hardie v. Bissell, 80 Ark. 79, 94 S. W. 611; Floyd v. Booker, 161 Ark. 87, 255 S. W. 288.

No error appearing, the decree is affirmed.


author: Kirby, J.,

text:
    Johnston v. Lowery.
    Opinion delivered March 10, 1930.

      G. L. Grant, for appellant.

      Hardin ■<& Barton, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that he is entitled to the custody of his child as against the child’s aunt under the circumstances of this case, and that the order of the judge holding otherwise should be quashed. The general rule is well understood and well established that the father is the natural guardian of his child and entitled to its custody. Mantooth v. Hophins, 106 Ark. 197, 153 S. W. 95. The law recognizes the preferential rights of parents to their children over relatives and strangers, and where no,t detrimental to the welfare of the children, they are paramount, and will be respected, unless special circumstances demand that such rights be ignored. Herbert v. Herbert, 176 Ark. 858, 4 S. W. (2d) 513; Loewe v. Shook, 171 Ark. 474, 284 S. W. 726.

The courts will not always, however, award the custody of an infant to the father, but, in the exercise of a sound discretion, will look into the peculiar circumstances of the case, and act as the welfare of the 'child appears to require considering primarily, three things: “(1) Respect fior parental affection, (2) Interest of humanity generally, (3) The infant’s own best interest.” Mantooth v. Hopkins, supra; Verser v. Ford, 37 Ark. 29; Coulter v. Sypert, 78 Ark. 193, 95 S. W. 457. The majority of the court is of opinion, in which the writer does not concur, that there was only an exercise of sound discretion by the judge, and not an abuse of it, in awarding the custody of the infant child, under the circumstances of this case, to the aunt, to whom she was much attached, with whom she had long lived, and with whom she expressed a decided preference to remain.

Appellant pursued the correct practice by bringing the action or decision of the judge upon the habeas corpus proceeding to this court by certiorari for a review, revision or correction. Ex parte Good, 19 Ark. 410; State v. Williams, 97 Ark. 243, 133 S. W. 1017; Ex parte Dame 162 Ark. 382, 269 S. W. 754.

Having found the petitioner is not entitled to the relief sought, the petition will be dismissed. It is so ordered.


text:
    Wharf Improvement District Number One of Helena v. United States Gypsum Company.
    Opinion delivered March 10, 1930.

      Bevens & Mundb and J. G. Burke, for appellant.

      A. D. Whitehead, W. G. Dinnmg, amici curiae.

   Kirby, J.,

(after stating* the facts). Appellant insists for reversal that the court erred in overruling its demurrer to the complaint of appellee, and that' the funds due from the appellant improvement district to the contractors were not subject to garnishment for debts due from the contractors to appellee company for materials furnished, and used in the construction of the improvement when the suit was brought, and the decree rendered. It has long been the established rule that an improvement district or governmental agency is not subject to garnishment prior to the completion* of the improvement to construct which it is created. Newell Contracting Co. v. Elkins, 161 Ark. 625, 257 S. W. 54, and cases cited. It is likewise true that insolvency of the debtor must be alleged or shown before funds due from the improvement district to the debtor are subject to garnishment. Appellant’s contention that the court erred in not sustaining its demurrer to the original complaint of appellee, which did not allege the insolvency of the debtors sued, and did allege that the buildings of the improvement district have never been completed and remain uncompleted at the present time, avails nothing here. A hearing was had wherein it was shown that the buildings the contractors were bound t'o construct, and for which materials were furnished them by appellee company, were substantially completed, as the chancellor found, and had long been in the possession of the district before the bringing o°f the suit. The insolvency of the contractors was also alleged by way of amendment to the complaint, which was not denied, before the hearing was had. Appellant’s answer also disclosed that it would be the contention of the contractors that the improvement was completed, although it denied that such was the case. Conceding that the complaint as filed was demurrable, the facts themselves shown on the hearing supplied any defects óf the complaint existing because of the allegations thereof not having been made therein.

In answer to the contention by the brief of amici curiae for the surety company, that the appeal should be dismissed, not having been taken in the time allowed by law, appellant insists that such brief cannot be considered, since no appeal was taken by the surety company, upon whose part the brief and motion was filed, and also that the contention is without merit. It is true that upon the first hearing the court decreed on the 23d day of July, 1928, that appellee company was entitled to recover the sum claimed from the insolvent contractors, and judgment against the garnishee district subjecting the- amount due from it to the insolvent contractors to the payment of the judgment recovered by appellee against the contractors for materials furnished which was impounded and ordered paid to appellee in satisfaction of said indebtedness, and from which no appeal was taken. It also held that it was necessary to have an account stated in order to determine the amount due from the district t'o the contractors and appointed a master for the purpose. No appeal was taken from this decree by the appellant, but only from the one called a final decree entered the 23d day of May, 1929. An appeal must be taken from final judgments and decrees within the time prescribed by the statute for perfecting appeals, six months in this instance. Section 2140, C. & M. Digest. This first decree determined the rights of the appellee to recover the amount of its claim against the insolvent contractors, and io have the balance remaining due such contractors from the improvement district ascertained, impounded and paid on the garnishment in settlement thereof. There was nothing further left for adjudication but only an ascertainment of.the amount due, which .was subjected to the payment of the judgment rendered, and the las,t decree appears to have recognized that such was the case in making the first decree perpetual. It was a final decree adjudicating the rights of the parties, and the appeal should have been taken therefrom. Flanagan v. Drainage District, 176 Ark. 31, 2 S. W. (2d) 70.

Appellant insists further that the decree sustaining the equitable garnishment and fixing a lien on the funds due from the district to the insolvent contrae,t'ors is void under the provisions of the National Bankruptcy Act, § 67, paragraph F (11 U. S. C. A., § 107f). There is no evidence in the record of the time of the adjudication in bankruptcy of the insolvent contractors, or that there has been such adjudication, and there is no indication that any claims have been or will he made against the improvement district for collection for the bankrupt estates of the money that was due from it to the contractors under the contract for the construction of the improvement. If appellant feared that there was any liability on its part for the payment of the money due from it to the contractors upon a claim by the trustee for the benefit of the bankrupt estates, it should have made the trustee a party to the proceeding, that all the rights might be finally adjudicated. It neither did this nor made any allegation showing the condition or asking any relief against the contingency of a liability to payment of the money due the contractors to the estates of the bankrupts for the benefit of its creditors, and cannot, under this contention, avoid or evade the force and effect of appellee’s judgment.

We find no error in the record, and the decree must be affirmed. It is so ordered.


author: Mehappy, J.

text:
    Kettle Creek Refining Company, Inc., v. Scales.
    Opinion delivered March 10, 1930.

      Ragsdale <& Matheney, for appellant.
   Mehappy, J.

On September 17, 1929, the appellant filed its complaint in the Union Circuit Court against J. M. Scales, or Jim Scales, and his wife, Tillie Pauline Scales, doing business as the Terminal Cleaners, or the Owl Cleaners & Dyers, alleging’ an indebtedness of $256.09. Summons was served September 18, 1929. At the same time of the filing the complaint, the appellants filed allegations and interrogatories, naming as garnishees the First National Bank of Huttig, Arkansas, and the Exchange Bank & Trust Company, El Do-rado, Arkansas, alleging that the garnishees, and each of them are indebted to the defendants in the sum of $300. Garnishment bond was filed and approved by the clerk. On September 17,1929, a writ of garnishment was issued by the clerk directed to both banks as garnishees. The ■ clerk signed and affixed his seal to three copies of the writ, each copy being’ identical, and containing the names of both garnishees. The writ was served on the Exchange Bank & Trust Company on the 17th of September, and on the First National Bank of Huttig on the 18th of September.

On September 18, 1929, the appellees filed their bond for the release of the garnishment, with B. K. Landreth and Frank Hodges as sureties, and on that day the clerk issued a supersedeas, releasing the g-arnishees.. Nineteen days thereafter appellees filed a motion to quash the writ of garnishment, alleging that it was void because it included more than one garnishee without alleging a joint liability or indebtedness. On November 13,1929, the court sustained the motion, quashed the garnishment, discharged the garnishees, and released the sureties on the garnishment bond, from which ruling of the court,- this appeal was taken. Judgment by default was rendered against James M. Seales for $271.45, including interest to October 16,1927.

On October 9th the First National Bank of Huttig filed an answer admitting an indebtedness of $3.00.

The only question presented for our consideration is. whether the court erred in releasing from liability the sureties on the bond executed for the release of garnishment.

On September 18, 1929, the appellees filed a bond for release of said garnishments with R. K. Landreth and Frank Hodges as sureties, and the garnishees were thereupon released. The motion to quash the writ of garnishment was several days after this bond was given. Without passing upon the question as to whether the allegations were sufficient for the writ in the form it was issued, the appellees and the sureties on their bond waived any irregularity in the issuance or service of the writ of garnishment. .

“As, by force of statute, a garnishment proceeding is discontinued and eliminated on the giving of a statutory dissolution bond, it cannot thereafter be quashed or dismissed on motion. Any inquiry as to its regularity or validity ceases to be material. By giving the bond, defendant waives defects and irregularities in the proceedings and estops himself from setting them up. However, the giving of a dissolution bond does not amount to a waiver of a positive lack.of jurisdiction which renders th.e entire action and proceeding illegal and void, and which cannot be supplied by any act of defendant. Alter the dissolution of the garnishment by the giving of the security, the main action proceeds in due course as at common law.” 28 C, J. 365.

“While the giving of a statutory bond is essential.to dissolve a garnishment'as a matter of right under-the statute, and the filing of a bond which differs in its terms from the statutory bond presents no legal obstacle to the entry of judgment against the garnishee, yet, where a common-law bond has in fact accomplished the purpose for which it was executed, and there has been a breach thereof, liability thereon may be enforced-by action as distinguished from a statutory summary remedy.” 28 C.J.366.

Here'the appellees, themselves, executed and filed the bond with sureties for the purpose of releasing the garnishees, and this action on their part estopped them and the sureties on their bond from denying the validity of the garnishment.

“The sureties on such a bond are estopped from denying the validity of the garnishment.” 12 R. C. L. 861.

Act 177 of the Acts of 1925, page 538, provides, among other things, that the defendant may have such garnishment discharged and all funds or property of his in the hands of the garnishee released therefrom by filing with the clerk of the court or the justice of the peace before whom such action may be pending a bond in double the amount for which the garnishment was issued, that he will pay any judgment which may finally be rendered against him in the action. Upon judgment being rendered against the defendants, summary judgment may be rendered against the sureties in such bond. Castle’s Supplement to Crawford & Moses’ Digest, § 4907 A; Wilkinson v. U. S. F. & G. Co., 119 Wis. 296, 96 N. W. 560; Dierolf v. Winterfield, 24 Wis. 143; Billingsley v. Harris, 79 Wis. 103, 48 N. W. 108; Rich v. Sowles, 65 Vt. 135, 26 Atl. 585; St. Louis Cordage Mills v. Western Supply Co., 54 Okla. 757, 154 Pac. 646; Gist v. Johnson Corey Co., 161 Wis. 179, 151 N. W. 382.

Many authorities might be cited to the effect that, when the defendant in a garnishment or attachment suit executes and files a bond with sureties, the defendant and his sureties are estopped from claiming any irregularity in the attachment or garnishment. If the garnishment proceedings were erroneous, this could and would have been determined by the court on a proper proceeding. But, without any regard to whether there was any irregularity or not, when the defendant secured the discharge of the garnishees by giving the bond in this case, he estopped 'himself and sureties from taking any advantage of any irregularity, if such existed. It has been many times held, that in attachment suits, after the giving of the bond to release the attachment, the validity or regularity of the attachment cannot be inquired into. After the giving the bond mentioned, the garnishees were no longer in court, and the lower court should have directed judgment against the sureties on the bond.

The cause is therefore reversed and remanded, with directions to enter judgment against the sureties on the bond.


author: Butler, J.

text:
    Gaster v. Hicks.
    Opinion delivered March 10, 1930.

      Bcscoe R. 'Lynn and .June P. Wooten, for-appellant.

      8am T. Poe, Tom Poe and'McDonald Poe-, for appel-lee. ' ’
   Butler, J.

This suit was brought by the'appellee to recover damages for personal injuries claimed to have been received while working in the employ of R. L. Gastar, now deceased, which injuries were received on June 3, -1925. The appellee was working on a grader used to spread gravel upon the highway, the grader being drawn by - a tractor, and in attempting to start the tractor -the appellee’s arm was caught in a large fly-wheel attached to the same, and was so badly injured as to render it useless and deformed. The appellee seeks to hold the appellant liable because of appellant’s failure to furnish him reasonably safe equipment with which to work, in that, first, the tractor had been equipped with a cranking device which, at the time of the injury to the appel-lee, was out of repair and not being used, and that the appellant’s failure to maintain such cranking device made the tractor dangerous to start; and, second, the ignition and timing device was not properly arranged, the result of which was to cause the tractor to improperly function in starting; that these defects were unknown to the ap-pellee, and were not of such an obvious character as to impute to him the knowledge of their unsafe condition.

The appellant denied any defect in the equipment or negligence on his part and pleaded contributory negligence and assumption of risk on the part of the appellee, and alleged that the negligence, if any, was that of appel-lee’s fellow servant for which appellant was not liable.

It may be said that prior to the institution of the suit, R. L. Gaster, appellee’s employer, died, and this suit was brought against Dorothy E. Gaster, as administra-trix. Appellant’s intestate was engaged in building a gravel highway, and the appellee was employed by him as a grader operator. Appellee reached the place where he was to work on June 2nd, and there found the Rumley tractor, which was to pull the grader, being worked on. Appellee assisted to some extent the mechanic .and one Fowler, the tractor man, and in the afternoon, after some repairs had been made on the tractor, they tested it to see if it could be started and found that it would run. At the- time the tractor had no starting device, and this made it necessary for whoever “cranked” it to do so by standing in front of the flywheel, between it and the front of the tractor, and pull the flywheel over. This was done by grasping it with the hands and pulling it forward so that it would revolve, and this was called “cranking” the tractor. Several cranked it on the afternoon of June 2d and also in the forenoon of June 3d, including appellee, when it would start all right. When Fowler, who was running the tractor, and the appellee got ready on the afternoon of June 3d to start on their work, Fowler operated what was called the “choke” — an equipment with which to let the gasoline into the proper part of the mechanism so that it might explode when the wheels turned. Appellee started to crank the engine in the usual way, when, for some reason, as the engine began to run, appellee’s arm was caught in the flywheel and was broken and badly mangled.

As to just how this injury occurred, the testimony is in conflict. It was agreed that one of the witnesses who was absent would testify, if present, that the injury was occasioned by appellee’s foot slipping, causing him to fall forward with his hand into the flywheel just as he started the engine. This witness was Lowell Miller, who, the appellee testified, was about one hundred yards from the place of the accident handling some rock at the time of the injury. Fowler, the only other witness as to the manner of the accident, except the appellee, stated: “Hicks and I went to the machine to start our day’s work after lunch. Mr. Hicks went around to crank the machine while I was choking it — it was the same as a car; it had a throttle with gas on it. In some manner his hand slipped, or, in other words, it got away from him and made a backfire. * * * In this instance it seems -it happened that, instead of bringing it over the firing point, he brought it most to the top point, and instead of firing it turned backwards; it turned back, and this explosion ignited. Couldn’t say whether he didn’t turn it quite far enough or turned loose too quickly. ' The tractor-kicked with me. His arm got caught on a part of the frame.”

The appellee testified, in relating how the injury occurred, as follows: “After dinner was when it happened. It didn’t seem to want to start. * # * I stood on the ground and turned the flywheel to crank it; had seen Fowler crank it that way. * * * I had hold of the spoke and the wheel when it. fired and jerked out of my hands backwards. It came back, and that put my hand through the spokes — jerked it there. By jerking you it would throw you out of balance and throw you in there. I fell into the wheel. My hand got caught between the spoke and the cross-bar; that is, the side part of the frame. Really, I don’t know where it was caught, whether it was on the frame or inside of the water pipe or cooler. Had my hands way down by this thing when it happened. My hands were close to the frame when it fired and went hack the other way. I don’t know how far it went around.”

The above is substantially all of the testimony relative to the circumstances attending the operation of the tractor at the time of the injury, and the manner in which said injury occurred.

Ellis was in charge of the job and testified, among other things, that the tractor had a starting device, hut that it was out of order. Fowler stated, in one part of his testimony, as follows: “I was under the impression that it had a safety cranking device on it. You see, this has been about four or five years ago, and my memory on some things isn’t good, hut the same model tractor I had operated before this one was equipped with a safety cranking device.” And later on in his testimony he was asked if he had examined a tractor that had been shown him the day before he testified, and he stated that it was the same tractor in use at the time of the accident; that it was the same tractor; that he identified it by a camshaft that he had put in there, and that there were lots of parts missing — removed from the tractor; that on examining the flywheel he did not -find any notches or lugs on the inside, and that he had been under the impression that it had starting lugs on it, hut when he went out to the machine on the day before testifying he found it had no lugs. “T believe it did have on the other machine, and I was of the impression that this one did too. I can be mistaken about it.”

The tractor was a six-thirty model, and Joe Lyon, a salesman foi’ the Runley people, introduced a catalogue showing the lugs or indentations on the inside of the flywheel in which a part of the starting device fitted when a tractor was so equipped, and this witness stated that some six-thirty model tractors had starting devices on them and some did not; that he had examined the flywheel of a tractor shown him the day before the giving of his testimony represented to be the tractor in nse at the time of the injury, and that the flywheel had no notches in which the end of the arm of the safety device would be inserted when it was being used to start the tractor. The witness stated that, when the starting device was in use, the tractor could be started without one having to put his hands upon the flywheel or coming in contact with it.

The testimony was given on the 13th day of March, 1929. The tractor was used after the accident in June, 1925, until sometime in August of that year, when it was set aside and had not been used since. The evidence shows that the tractor was old and worn and had to be continuously repaired in order to keep it in working order, and that on the day before the injury to the appel-lee it was being repaired and the timer was being adjusted. The evidence shows that the ignition system was poor, Fowler explaining that, if it had not been, the tractor could have, been started easily by one individual, but that it required, in its condition, the efforts of two to get it started. A gasoline engine mechanic was doing the repair work, and Fowler was helping him. The extent to which the appellee assisted was to hand them tools or parts as required. The mechanic did not testify, but Fowler stated that a change was made from a low tension to a high tension magneto, and the spark was accelerated to fire a little early to get more power; that the timing mechanism, the ignition and the magneto on the tractor were not visible; that a “backfire” is where the spark is advanced, and when you crank it fires early, and instead of turning the right way or forward, it turns backward — it is simply where the spark is advanced too far, and it fires before the piston gets'in the right position.”

F. A. Ussery was called as an expert witness and testified that he had been in the automobile repair business for twenty-three years, and had had experience with internal combustion gas engines. He was asked this question :

' “Q. I wish you would tell the jury what the effect of setting up the timing gears on one of the internal combustion engines is as to whether it is likely to cause backfire more frequently than if retarded? A. Well, did the magneto have a spark control on it? Q. It had an impulse starter on it. A. It had an impulse starter but no spark control? Q. No, no spark control. Well, in timing an engine of that kind a man should be pretty careful to get his pistons at the proper place, his valves at the proper place, in order to determine when it is in time.”

Continuing his testimony, the witness stated, “ There wouldn’t be any difference in a low-tension magneto and a high-tension magneto. Any time you put an impulse starter on any kind of machine, it clearly indicates to you, or any other man, that that car is hard to start. In other words, the compression is so great that a man can hardly turn it over or get momentum without it kicking back on him. By putting an impulse starter on there, or a car— an automobile gas engine — they are a danger to a man cranking that car any time, and he wasn’t careful in pulling up on the crank — even if he moved it slow — even a Ford ear you retard the spark and pull up the crank. You pull up slow on it. The piston will get to the top, and there will he a variation in time — in fact, it would backfire before it goes there itself, and it is likely to kick back at the top of dead center as to go the other way.” He further stated that if the timing mechanism is set to fire before it gets to dead center, it is bad; that “that is not backfire — it is firing too early; it comes back. If it fires before it gets to dead center, it will reverse itself, and the crank will run around with the motor.” He further stated, in speaking of cranking a tractor which might backfire, that if one was accustomed to the motor, or tractor, and if he is a pretty good gas engine man, he might “rock it” on compression and get by, and that if an engine fired too early, or backfired, it was because of some fault in the timing mechanism.

There was other testimony introduced tending to show that gasoline engines would backfire without any apparent cause, and there were circumstances narrated by the witnesses as to the blood on the tractor in question after the injury which indicated that, when said injury occurred, the flywheel was not going backward, but forward. The testimony, as abstracted, is fragmentary, and indeed that appears to be true when the record is examined. Also the testimony is very meager as to just what was done with reference to setting the timing equipment, and as to whether or not the tractor in question had ever been equipped with a starting device. We have endeavored to gather from- the disconnected statements of the witnesses their testimony relative to the question of the manner in which the injury occurred, and that relative to the starting device and the ignition. After a careful consideration of the testimony as abstracted, and as revealed from an inspection of the original record, we have concluded that there was substantial testimony upon which to submit the question of the negligence of appellant’s intestate to the jury.

This court cannot weigh the evidence or pass upon the credibility of the witnesses, that being the sole'province of the jurv. The jurv has found, by its verdict, that there was negligence, and in considering the evidence wé must give to it its highest probative force in favor of the appellee and indulge every inference which is reasonably deducible from the testimony in support of the finding of the jury. Thus viewing the testimony, it may be said that there is substantial evidence to the effect that the appellee was not experienced in the mechanism of gasoline tractors, and that, while he had worked for a number of years where tractors were used, his work was not of such character as to render him a skilled gasoline engine man. In fact, the reasonable inference is that he knew but little of them except that they would run. He was entirely unacquainted with the particular type of tractor that caused his injury, never having worked about one before. The tractors about which he had worked before were equipped with starting devices, and he did not know at the time of his injury whether the Rumley tractor which caused his injury had ever been equipped with such a device. The experience he had had with this tractor was only that acquired on the day before the accident when he had but a casual connection with the repair work being done upon it. Appellee had seen Fowler start the engine in trying it out on the afternoon of the 2d and perhaps in the forenoon of the 3d, and he himself had tried it out, starting it one or more times as he had seen Fowler do, each time the engine starting without a backfire. He knew nothing of the ignition or timing equipment. It was covered so that he could not observe it, and, if it had not been covered, his experience and knowledge of such .equipment would not have been sufficient to'apprise him of any existing defect.

It is manifest that the tractor was old and worn and required constant attention in order to make it run, and, if the starting equipment had been attached to the tractor, it could have been started without danger to the operator, or if the ignition had been in good condition, the tractor man could have started it without aid of the appellee, who was the grader man. Because the tractor was old and worn, the timing equipment was so arranged as to make it “fire early,” the reason for this being that by so doing the engine would operate with more power, and this made the starting of it a dangerous operation. For, by firing early, the electric spark was emitted and exploded the vaporized gasoline before the piston reached a point known as “dead center,” which would have a tendency when the explosion occurred to cause the wheels to revolve the wrong way — that is, to go backward instead of forward. One acquainted with a particular engine in this condition and so timed, by using care and “rocking it” at a particular point could start the engine without injury to himself. When the time came for the tractor man, Fowler, to start the tractor attached to the grader which was to he operated by the appellee, it became necessary for him to have appellee’s assistance in order to get his engine started, and this the appellee conceived to be, and in fact it was, his duty. He went to the flywheel at a point where he had been shown, and where he had seen others take hold of it to revolve it or crank it, and in the course of that operation the engine fired too early, or backfired, causing the flywheel to suddenly revolve backward instead of forward, as it should have do.ne, causing the appellee to fall forward, so that his arm ■ was thrust between the spokes of the wheel and caught in some manner as the wheel revolved backward, breaking and mangling his arm. The jury concluded that this would not have occurred, had the wheel moved in the proper manner, and it did not so move because of the negligence of the appellant in not having the proper adjustment of the timing and ignition system on the tractor.

It is contended by the appellant that the injury resulted from the ordinary dangers incident to the operation, and that the appellee assumed this risk when he entered his employment. We fully agree with the appellant as to the rules of law governing the question of assumed risk, and that the rule cited is the one applicable to the facts of this case, but we draw a conclusion different to that of learned counsel. “The rule is well settled in this State that, when it appears to be clear that the servant has knowledge of and appreciates the dangers incident to the work, or that the danger is so obvious or, apparent that knowledge of the danger and .appreciation thereof should be imputed to him, then the court should declare, as a matter of law, that the servant is not entitled to recover. It is equally well settled that assumption of risk is not predicable from knowledge of the conditions alone. It must further appear that the danger was, or should have been, appreciated by the servant in order that it may be said that there was an intelligent consent on his part. While the appreciation of the danger is often inferred from complete knowledge on the part of the servant, yet, if the knowledge possessed by the servant is not such as to necessarily make him appreciate the danger of his work, his action for injuries will not be barred.” Brackett v. Queen, 162 Ark. 525, 258 S. W. 635, and a number of other cases cited in appellant’s brief. We think, from an application of this rule to the testimony in the instant case, that it could not be said as a matter of law that it was clear that the appellee appreciated the danger incident to the cranking of the tractor. This ivas the first time he had ever worked about a tractor of this description; he was-not aware that it had, at any time, been equipped with a safety device, and therefore could not have been aware that the engine might be dangerous to start without such device; he had only seen this engine started a very few times; he was not a gagoline engine mechanic, and there is nothing to show that he would have known, had he inspected the ignition system and timing equipment, that the same was not in good condition. Moreover, this equipment was all concealed, and, having just been overhauled by a skilled mechanic, the appellee had the right to assume that it was in proper working order, and that no danger would result to him therefrom. Therefore, the assumption of risk would not be predicable from a knowledge of these conditions, nor were they such that from the experience of the appellee he would, or could, have appreciated the danger, and it cannot be said as a matter of law that he had assumed the risk.

We think the question of the appellee’s contributory negligence was properly submitted to the jury, and that it was for the jury to say whether or not the appellee, from his knowledge of cranking a Burnley tractor, was careless in the manner in which he undertook to do so. The testimony of one of the witnesses, if believed, might have led to the conclusion that the appellee was negligent, and that because of such negligence he slipped and fell into the flywheel, and that the injury was occasioned by that and not by the backward movement of the flywheel. But there was testimony that this witness was a hundred yards away from the accident, and also testimony contradicting his statements, so that it was for the jury to determine this issue. It cannot he said, as a matter of law, that in attempting t.o crank the tractor in question the appellee did not undertake the operation as an ordinarily careful and prudent man would have done under similar circumstances.

The court fully and fairly instructed the jury on the questions of negligence, assumed risk and contributory negligence, none of which instructions are complained of, but it is contended that the court erred in refusing to give appellant’s prayer for instruction No. 15, as follows: “You are instructed that the defendant is not responsible for the negligence of a fellow servant or employee, even in the event you find that such negligence may have been proven in this case. ’ ’

It was not error to refuse the above instruction for the negligence complained of and proved, if any, was not -411 e negligence of a fellow servant, but of the master himself. If it had been some negligent act of Fowler at the time of the injury which in any way caused the appellee to fall into’ the flywheel, then the instruction would have been proper, but the negligence, if any, was in the failure of the master to furnish reasonably safe machinery with which to do the work. This is a duty of the master, which he cannot delegate so as to avoid liability. Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S. W. 740.

All of the questions noted were dependent upon conflicting testimony, and submitted to the jury under proper instructions. The rules of law governing are so well settled as to render the citation of authorities unnecessary.

As we view this case, it depended merely on questions of fact which, on substantial testimony, have been settled by the jury adverse to the contentions of the appellant.

It is evident that the testimony of Fowler as to the repairs on the tractor other than that to the timing mechanism, if improper, was not prejudicial, because it was shown that such repairs had no connection with the defects complained of, and there was other testimony introduced, without objection, relative to the same matter.

We do not deem it important to discuss the objections made to the testimony of the witness Eshe, because it is apparent from the record that his calculations were disregarded by the jury.

On a consideration of the whole case, we are of the opinion that the trial court committed no prejudicial error, and, giving* the testimony its strongest probative force, there is some substantial evidence tending to support the verdict. The jury awarded appellee $15,000.

On the question of the amount of the verdict and judgment, there were three elements of damage to be con.sidered by the jury — pain and suffering endured and likely to be suffered in the future, the embarrassment and humiliation from the maimed limb, and the loss of earning power. The pain and suffering in this case must have been intense and endured over a long period of time. From the testimony of the physician it is apparent that the appellee’s arm can never be restored in any way approaching its normal condition, and that the bones are still not united and perhaps will never be. They are heard to grate as appellee moves his arm, and he testified, and it seems reasonably true,*that he continues to suffer pain and perhaps always will. We cannot measure human suffering in dollars and cents, but we have in numbers of cases held that it entitled the sufferer to a substantial recovery in damages. The mental anguish ap-pellee will suffer through the years is to 'be considered, and it is clearly demonstrable from the testimony that the appellee is unfit to earn a living except by physical labor. We have only to apply common sense to the state of the case where a laborer has lost the use of his right arm to conclude that the injury to him is serious indeed. The evidence in this case shows that the appellee was a comparatively young man, strong and healthy, earning the equivalent of $5.00 a day. He was increasing in efficiency in his particular line of work, and his wages had been raised from time to time. Since he had been injured, he only has been able to earn very much less, and some of the money he has earned has been derived from casual jobs which we have no reason to believe will be permanent. We think it reasonably certain that the loss of the use of a laboring man’s right arm — especially if he is a right-handed man — necessarily prevents him from following a vocation that would require any degree of skill, and he is reduced from the grade of a skilled or semiskilled workman to take up those occupations that are called common labor. We see nothing' in any of our former decisions that would compel us to reduce the judgment in this case, for, as pointed out in the case of Missouri Pacific v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528, a dollar is worth much less than formerly, and a recovery of a sum held to be excessive some years ago would not necessarily mean that for a similar injury now such verdict would be deemed excessive. See cases cited in Mo. Pac. Rd. Co. v. Elvins, supra.

The judgment of the trial, court is correct,-and it is therefore affirmed.


author: McHaney, J.

text:
    Huff v. Freeman.
    Opinion delivered March 10, 1930.

      David L. King, for appellant.

      Smith $ Blackford, for appellee.
   McHaney, J.

The school directors of School District No. 3, in the southern district of Sharp County, entered into a contract with Clayton Nicholson to teach the school in said district for a period of three months, beginning July 8, 1929, at'a salary of $60 per month. Nicholson is related to one or more of the directors within the fourth degree of consanguinity or affinity. He presented a petition to the directors, purporting to be signed by the patrons of the district, in an effort to comply with § 9029, 0. & M. Digest, which prohibits the employment of any person as teacher within that degree of relationship, unless two-thirds of the patrons shall petition them to do so. Appellants opposed his employment by the directors, and brought this suit to enjoin the appellees, who are the directors, and the teacher from carrying out such contract, alleging that the petition presented to the directors did not contain two-thirds of the patrons of the district. The case was tried before the chancellor, and a decree entered on August 8,1929, denying the prayer of the petitioners, and dismissing the petition for want of equity.

The record discloses that Professor Nicholson began teaching the school on July 8, 1929, and the presumption is, although not definitely shown in the record, that he carried out the terms of his contract with the district by teaching the school for three months, and was paid his salary as stipulated in the contract. No bond was given at the time the suit was filed, and the judgment of the chancery court has not been superseded on appeal. It appears, therefore, nothing can he accomplished by this appeal, and that the questions presented have become moot. This court will not decide questions which have ceased to be an issue by reason of facts having intervened, rendering their decisions of no practical application to the controversy between the litigants, though the dismissal of the appeal would leave the costs of the litigation on the appellant. Henry Quellmalz Lumber & Mfg. Co. v. Day, 132 Ark. 469, 201 S. W. 125. In Kays v. Boyd, 145 Ark. 303, 224 S. W. 617, it was held that it was ihe duty of this court to decide actual controversies by judgment which can be carried into effect, and not to give opinions on abstract propositions, or to declare principles of law which cannot affect the matter in issue in the case at bar.

A decision of the questions raised in the brief of appellant would be of no practical importance to the parties since the contract to teach the school has been fully executed, and we therefore decline to decide them. The appeal will therefore be dismissed.


text:
    Page v. State.
    Opinion delivered March 10, 1930.

      Hal L. Norwood, Attorney General, and Pal Me-haffy, Assistant, for appellee.
   McHaney, J.

Appellant and two others were charged in the indictments, each containing two counts, with burglary and grand larceny. On his motion to sever, appellant was tried separately, and by consent the two cases were consolidated. He was convicted on both counts in both indictments, and sentenced to two years in the penitentiary.

He has not favored us with a brief in his behalf. The first three assignments of error in the motion for a new trial challenge the sufficiency of the evidence to support the verdict. We have read the abstract of the evidence prepared by the Attorney General, and find it amply sufficient without reference to the testimony of the two accomplices who were jointly indicted with him. We think it would serve no useful purpose to review it, and therefore refrain from doing so.

The next assignment of error is “that the court erred in permitting the prosecuting attorney * * * to prove statements made by other persons when the defendant was not present at the time of the alleged statements. ’ ’ The record fails to disclose any such statements, but, even conceding that it did, this assignment is toe-indefinite to bring to the attention of the court any particular statement complained of. A witness was permitted to testify that the two accomplices had made statements in appellant’s presence, but the witness did not state what the statements were. There is no merit to this assignment.

It is next assigned that the court erred in permitting the State to prove that various stolen articles were found in the possession of persons other than appellant. Some of the stolen articles were found in possession of appellant, and some in possession of the other accomplices. The rule that the acts, conduct and declarations of one co-conspirator, after the accomplishment of the purpose of the conspiracy, are not admissible as against another conspirator has never been extended so as to exclude proof of such facts. The exact question was decided against appellant in Wiley v. State, 92 Ark. 586, 124 S. W. 249.

The last assignment that the court erred in giving instructions numbered “............” to the jury cannot be considered, as it points out no particular instruction, is too general, and is the same as if it had said the court erred in giving instructions.

Judgment affirmed.


author: Per Curiam.

text:
    Thomas v. State.
    Opinion delivered March 10, 1930.
    ' Walter J. Hebert, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Per Curiam.

Richard Thomas prosecutes this appeal to reverse a judgment of conviction against him for the crime of pandering, in violation of the provisions of § 2705 of Crawford <fc Moses’ Digest. The State has confessed error on the ground that the trial court erred in refusing to sustain the motion of appellant in arrest of judgment.

The section of the digest under which the indictment was found provides, in substance, that any person who shall knowingly receive any money without consideration from the proceeds of the earnings of any woman engaged in prostitution shall be deemed guilty of a felony. The indictment left out the words “without consideration.” It will be observed that the exception in the statute, “without consideration,” is so incorporated in the enacting clause that one cannot be read without the other, and the exception becomes one of the essential ingredients of the offense. In other words, the exception is contained in the clause of the statute creating the offense, and it is so interwoven with the definition of the crime as to constitute a material part thereof. If the State were not required to negative the exception in the statute, it would not be required to prove that the person appropriating the money from the proceeds of the earnings of any woman engaged in prostitution must do so without consideration. This would make an offense not created by the statute.

The rule is well settled in this State that when an exception contained in a statute defines an offense and constitutes a part thereof, an indictment for such crime must negative the exception; hut when the statute contains a proviso exempting a class therein referred to from the operation of the statute, the indictment need not negative the proviso; for the reason that the accused in such a case must make the exemption a ground of defense. McIntire v. State, 151 Ark. 458, 230 S. W. 619; Hodgkiss v. State, 156 Ark. 340, 246 S. W. 506; and Tumbelson v. State, 159 Ark. 266, 251 S. W. 868.

The indictment in this case does not allege .that the appellant received or appropriated money from the earnings of the woman engaged in prostitution without consideration. As we have already seen, the offense lies in receiving such money without consideration. It follows that the judgment must be reversed; and, inasmuch as the appellant has not been put in jeopardy,- the cause will be remanded for further proceedings according to law.


author: Hart, C. J., Hart, C. J.

text:
    Lenon v. Street Improvement District No. 512.
    Opinion delivered March 17, 1930.

      Henry C. Reigler and John F. Cliff or cl, for appellants.

      Dillon $ Robinson and Murray 0. Reed, for appel-lees.
   Hart, C. J.,

(after stating the facts). Appellants were property owners within the proposed street improvement district, and appealed to the city council for relief from the assessment of benefits, on the ground that it was excessive. Having been denied relief by the city council, appellants brought this suit in equity against the commissioners of the improvement district to have the assessment declared void on the ground that the assessment of benefits was excessive, and practically amounted to a confiscation of their property. The suit was brought within the time provided by statute, and constitutes a direct attack upon the assessment of benefits filed with the city council. Turner v. Adams, 178 Ark. 67, 10 S. W. (2d) 41.

There was a presumption in favor of the validity of the assessment of benefits, and the burden was upon the property owners who assailed it to show that it was excessive. Ahern v. Paving & Improvement District No. 32 of Texarkana, 168 Ark. 385, 270 S. W. 513.

The purpose of the assessment of benefits is to determine the effect of a proposed local improvement upon the market value of the real property in the proposed district, including the buildings on the lots. This is clearly a matter of the judgment of witnesses; and, in testing the correctness of their testimony, regard may be had to the value, area, and location of the lots, the improvements on them, their relation to other property in the district and out of it, the value of the improvements, their character and everything else which might be considered in determining the value of the benefits assessed. This court has uniformly held that the only sound principle upon which the assessment of benefits for a local improvement can stand is that the property assessed is specially and peculiarly benefited by the improvement. Consequently, when it is found that the cost of the improvement exceeds the total value of the assessment of benefits, the proposed improvement must fail.

Tested by these principles of law, we are of the opinion that the chancery court erred in refusing the testimony offered by appellants. In no other way could appellants get before the court their theory that their property had been assessed too high. They had a right to show that the assessment of benefits made by the assessors was greater than any special and peculiar benefit which would be received by their property from the proposed improvement. The record shows that there was already a good street of gravel and cinders. The buildings in the district consisted chiefly of negro residences of comparatively little value. It was proposed to change the street from one of gravel and cinders to a paved one. The assessed value of the property as shown by the last county assessment amounted to $50,700. The estimated cost of the improvement was something over $25,000. The witnesses for appellants testified that this character of property would not support a paved street. They all ag*reed that the cost of the improvement would greatly exceed a proper assessment of benefits made against the property. When the topography of the district, the character of residences in it, and everything which goes to make up the value of property is considered, we are of the opinion that the proposed evidence would have established that the cost of the improvement would exceed the value of the special benefits which might be derived from paving the street.

Under these circumstances, the city council should have ordered a reassessment of the property; and, not having done so, the chancery court should have admitted the proof offered by appellants and have rendered a decree in accordance with the views herein expressed. Having failed to do so, the decree of the chancery court will be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.

OPINION ON REHEARING.

Hart, C. J.

Counsel for appellee insist that the original opinion is in conflict with Kirst v. Street Improvement District No. 1, 86 Ark. 1, 109 S. W. 526, but we do not think so. On the contrary, we think it is in conformity with the principles of law there decided, as well as those in Turner v. Adams. 178 Ark. 67, 10 S. W. (2d) 41, cited in our original opinion.

■ The record shows that the property owners sought to attack the assessment before the city council on the ground that it was arbitrary and made for the purpose of making the assessment of benefits exceed the cost of the improvement without any regard being had to the actual benefits received by the property. The assessment as a whole was attacked on the ground that each piece of property in the district was assessed at a sum greatly in excess of any actual benefit it might receive, and testimony was offered which tended to establish the fact that the assessment of benefits was made in an arbitrary manner without any relation to the benefits received. Evidence to that effect was offered.

If this cannot be done, there is no use in holding that the individual owner shall never be required to pay a greater sum than the actual value of the benefits received. Assessments for street improvements can only be upheld on the ground that the property assessed is enhanced in value to an amount equal to the sum assessed against it. An allegation that the assessment on the property is substantially in excess of the benefits received raises a constitutional question; and, if the allegation is true, then the assessment is contrary to the Constitution. On a direct attack, this is a question of fact, and we pointed out in our original- opinion that the proof offered showed that the assessment made upon each piece of property was shown to be greatly in excess of any special benefit it might receive. The common council of the city had jurisdiction to pass upon the validity of this assessment; and, if the proof showed that it was arbitrary within the meaning above indicated, the council should have refused to confirm the assessment and have set it aside. This would have left it within the power of the assesso-rs to have made a newT assessment conformable to law, which would be subject to attack in the manner provided by statute as in the case of the first assessment. If the council fails to give the landowners the relief to 'which the proof shows they are entitled, they have the right to bring a suit in the chancery court within thirty days to accomplish that result. Therefore, the motion for a rehearing and to modify the opinion will be overruled.


author: Hart, C. J.,

text:
    Townsend v. Water & Sewer District No. 1.
    Opinion delivered March 17, 1930.

      J. 8. Toionsend, for appellant.

      Millard Alford and McMillan $ McMillan, for appel-lee.
   Hart, C. J.,

(after stating the facts). Appellant insists that he is entitled to recover for the labor, time, and trouble involved to him in the preparation of the petition, ordinances, and in the performance of the other work done by him in the formation of the improvement district in the sum of two per cent, on the amount of the bond issue, which was $115,000. He testified himself that this was the customary fee in cases of this sort and was the reasonable value of his Services. His testimony was corroborated by that of another attorney who had much experience in the formation of local improvement districts. Hence he invokes the rule laid down by this court that, where no compensation is fixed by contract, the attorney is entitled to recover for the reasonable value of the services rendered. Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12; Lilly v. Robinson Mercantile Co., 106 Ark. 571, 153 S. W. 820; and Bayou Meto Drainage District v. Chapline, 143 Ark. 446, 220 S. W. 807.

We do not think the record brings the case within the principles of law above announced, and we do not deem it necessary to decide whether or not appellant or Graves rendered more valuable services in the formation of the improvement district. The record shows that, when the commissioners organized, they unanimously passed a resolution appointing Graves and Townsend as attorneys for the district, and expressly recited in the resolution that they wer.e to receive $250 each for their entire compensation as attorneys. It is true that there was another clause providing for additional compensation in case of litigation, but there was no litigation in the organization of the district. Hence, under the resolution, which was accepted by the attorneys, they were only entitled to receive $250 each.

It is true that appellant testified that be did not accept the terms of the contract when he was informed by one of the commissioners of the passage of the resolution. He did, however, accept the fee provided for in the resolution, and this amounted in practical effect to an acceptance of the terms of the contract. The last warrant which was drawn for the payment of his services expressly recited that it was for the balance of his attorney’s fee. He accepted this without protest, so far as the record discloses. His acts and conduct amounted at least to a ratification or acceptance of the terms of the contract, and he was not thereafter in a position to ask for additional compensation. Therefore, the decree will be affirmed.


author: Smith, J.

text:
    Holland v. Myers.
    Opinion delivered March 17, 1930.

      Goehr cm S Arnett, for appellant.

      White <& White, for appellee.
   Smith, J.

This is ail appeal from a decree dissolving a co-partnership, which had operated under the name of the Paris Transfer Company. The partners.were appellant Holland and appellee Myers. Prior to the formation of the partnership, they had been separately engaged as competitors in the transfer business in Paris, Logan County. Appellee had the older and larger business, and, upon the formation of the partnership, they each contributed two trucks, which they owned, and took over another truck owned by appellee, upon which there was a balance of unpaid purchase money, and it was agreed that this balance should be paid out of the earnings of the partnership. Balances due on the other trucks contributed to the firm business were to be paid by the partner owing the debts. In addition, it was agreed that appellant should pay the sum of $50 per month until $1,250 was paid for the privilege of entering an established business.

After operating for about three months, a disagreement arose, it being claimed by Holland that Meyers had not devoted his entire time to the business as had been agreed; that he bought oil and gas at a profit to himself, and a loss to the partnership, from a filling station, which he had sold on a credit; that he operated a transfer business at Charleston in competition with that of the partnership, and had used the partnership trucks in his private business; that he had used partnership funds for his private purposes, and refused to discharge employees who were discourteous to appellant and refused to obey instructions which he gave.

There was a general denial of these allegations, and appellee acquitted himself of any improper use of the partnership funds, but the prayer of the answer was that the partnership be dissolved and an accounting ordered.

As both parties prayed a dissolution, and neither complains of that portion of the decree dissolving the partnership, it will not be necessary to discuss the sufficiency of the testimony to support that order.

The cause was heard .by a master, who took testimony and made a report of his findings, and the cause was tried upon exceptions to.this report. A sale of the partnership assets was had under the order of the court, and this appeal involves the distribution of the proceeds of the sale.

Only two errors are assigned for the reversal of the decree. One is that the court erred in refusing to allow appellant to withdraw the trucks, or the value thereof, which he had contributed to the partnership, and to allow appellee the same privilege.

Appellant cites cases to the effect that, where, on an accounting, it appears that the two owners of a partnership business were to advance capital and share the profits equally, the amount advanced by one partner in excess of another should first be given him out of the assets, and the balance then divided equally between them.

In the application of this principle appellant points out that the testimony shows that the net value of the 1 rucks contributed by him exceeded by $752 the net value of those contributed by arvnellee, and that upon the sale of the assets his trucks sold for $656 more than the trucks contributed by appellee sold for, and that he should have credit for one item or the other.

The court found, however, that this difference in value -was not taken into account when the partnership was formed, and that each contributed his truck without regard to their value, and we think that finding was not contrary to the preponderance of the evidence. There was therefore no error in refusing to take into account ihe difference in value of these trucks in distributing the proceeds of the sale of the assets.

Appellant also insists that the court erred in holding- that the $1,250 was a part of the consideration agreed to be paid upon the formation of the partnership without regard to the length of time it continued in existence; and we think he is correct in this contention.

Upon this question the master found as follows: “The plaintiff is also to be charged at the rate of $50 per month from the inception of the partnership until the partnership ceases its business, but credit is to be given the plaintiff for the $150 already paid. The defendant is to be credited with the amount charged to the plaintiff on this account. The defendant is not allowed the full $1,100 balance claimed by him on this account, as in the master’s opinion this part of the partnership contract is executory and depends upon the continuance in the partnership of the plaintiff.”

We concur in the finding of the master on this question. The testimony is conflicting, but we think the master’s finding is more consonant with the spirit of the agreement. While the partnership was not formed for any definite period of time, it was clearly contemplated that it should continue long enough for $1,250 to be paid a.t the rate of $50 per month. No one contends that it was to be paid otherwise than at the rate of $50 per month. Grounds for the dissolution of the partnership arose before the payments were completed, and the partnership has been dissolved by order of the court. It appears inequitable, therefore, to compel appellant to continue payments the consideration for which has failed.

The master, in stating’ the account, charged appellant with the monthly payment of $50 until the partnership ceased to operate as such, which we understand amounted to $150, but allowed a credit against that amount of $150, which was the agreed value of a cash register which appellant had sold the partnership. One item extinguished the other. The question, therefore, is whether the balance of $1,100 should also be charged to appellant in stating the account. As we think it should not, the decree must be modified in this respect, and, as thus modified, it will be affirmed.


text:
    Ross v. State.
    Opinion delivered March 17, 1930.

      John Mayes, for appellant.

      Hal L. Nonvood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Washington County for the crime of murder in the second degree, and, as a punishment therefor, was adjudged ta serve a term of two years in the State penitentiary. An appeal has been duly prosecuted to this court from the judgment.

Appellant unintentionally killed Rube Phillips, an innocent bystander, when shooting at Toney Eden, with whom he was fighting.

Two assignments of error are urged for a reversal of the judgment; the first for excluding certain evidence, and the other for giving instructions numbered 7 and 11.

1. The evidence excluded had relation to the details of a recent altercation between appellant, on the one part, and Mose and Cliff Brown on the other in which appellant received wounds which the court refused to let him exhibit to the- jury. Cliff Browm was in company with Toney Eden on the night the homicide occurred for which he was indicted, and was heard to say to Cliff Brown: “Leave the son-of-a-bitch to me; I will attend to him” (meaning appellant). This association and remark were made the basis for the request to testify in detail concerning the former difficulty and to exhibit appellant’s knife wounds to the jury for the alleged purpose of showing appellant’s state of mind, and whether Eden or himself was the aggressor. The rule is that previous trouble, threats, etc., between parties are admissible to shoAV the state of mind of either party, and which likely was the aggressor in the subsequent difficulty. Crafford v. State, 169 Ark. 225, 273 S. W. 13; Crews v. State, 179 Ark. 98,14 S. W. (2d) 261. This rule, however, can haA'e no application in the instant case, because, appellant did not offer to connect Eden Avith the difficulty between the Browns and himself. The trial court alloAved appellant to testify that he and the BroAvns had had a serious difficulty a short time prior to the difficulty with Eden, and Ave think the admission of this testimony was more f aATorable to him than he Avas entitled to under the rule.

2. Appellant assails instruction number 7, advising the jury of its duty to reconcile the testimony of all the witnesses, if possible, so that it might stand and be taken as true, because he emphasized the difficulty of doing so. The court remarked, in advising*the jury to reconcile the testimony of the several witnesses, if possible, “that there is not one case in a million Avhere you can”; then proceeded to inform it of its duty in case it should be unable to reconcile the testimony. It is not contended tliat the instruction is erroneous in any other particular. We think the objectionable language should have been met by a specific objection, and not a general one. The instruction was not inherently defective, and the attention of the court should have been called particularly to the objectionable language. It is true the language was an exaggeration, but we do not think it was prejudicial.

•Appellant also assails instruction No. 11, relating to the law of self-defense, because the alleged effect thereof was to deprive appellant of his defense. The instruction complained of had relation to the law of self-defense applicable to one who provoked a difficulty. The rule an-il ouneed was a correct declaration of the law in the instant ease because the evidence was conflicting as to whether appellant or Eden was the aggressor in the difficulty. The testimony on behalf of the State showed that appellant attended a dance at the home of Charles Goldman, where the homicide occurred, and, in the course of a quarrel with Eden, cursed and charged him with being “one of Mose Brown’s men”; that Eden struck him several times and drew a knife whereupon appellant drew a pistol; that Goldman ordered them out of his house; that Eden and Brown left the room first, and that appellant stopped near the door and fired an automatic pistol at Eden three or four times striking him in the arm, and killing Rube Phillips.

The testimony introduced by appellant was to the effect that, as he walked out of the door, Eden attacked him with the knife, and was attempting to cut him when lie fired upon Eden.

Under the conflict in the evidence, the instruction complained of was not inapplicable or erroneous.

No error appearing, the judgment is affirmed.

Justices Kirby and Butler dissent.


text:
    Wm. R. Moore Dry Goods Company v. Lammers.
    Opinion delivered March 17, 1930.

      M. F. Elms, for appellant.

      Bay S Bay, for appellee.
   Humphreys, J.

Appellant brought suit against J. B. Blackstone in the chancery court of Arkansas County, Southern District, to foreclose a second mortgage on a small tract of land given to secure an indebtedness of about $700 for goods and merchandise, and, deeming the mortgage security insufficient, filed an affidavit for a vendor’s lien on the stock of goods, attachment and bond for attachment, and caused a writ of attachment to be issued and levied upon the stock of goods owned by Blackstone which was located in a building owned by appellee. The building was retained by the sheriff or receiver until the goods were sold, the rent thereon amounting to $305, for which amount appellee filed a claim in the attachment proceeding as follows:

“■Statement of Intervener, Appellee Here,
A. E. Lammers.
“Statement of amount due on 12-18-28.
“To Albert Lammers, of Stuttgart, Ark.
“By Wm. B. Moore Dry Goods Company, of Memphis, Tennessee.-
“For amount of rental on store building, located at 225 North Main Street, Stuttgart, Arkansas, occupied by J. B. Blackstone, but which was taken possession of by you on June 15,1928, under a court foreclosure order:
Rental for June, 1928......................................................$25.00
Rental for July, 1928 ......................................................... 50.00
Rental for August, 1928 ............................................... 50.00
Rental for September, 1928 .................-................ 50.00
Rental for October, 1928...................................-........... 50.00
Rental for November, 1928 ...................................... 50.00
Rental for December, 1928 ........................................ 50.00
Rental (to 12-18-28) ...................................................... 30.00
Total...................................................................................$305.00
“Note.
“Interest is due on this amount at the rate of 8 per cent, per annum as rental is payable monthly in advance.
“Albert Lammers.
“Subscribed and sworn to before me this 3d day of June, 1929:
“ J. E. Ray, Notary Public.
“My commission expires 2-10-1930.”

Upon a hearing of the intervention, the trial court made a finding that appellant retained the building in question through its receiver until the rent thereon amounted to $305, and rendered a .judgment in favor of appellee against appellant for said amount, from which is this appeal. The testimony introduced on the hearing of the intervention was not incorporated in the transcript on appeal, hence appellant relies for a reversal of the judgment upon alleged error apparent on the face of the record. Appellant contends that appellee’s exclusive and only remedy was to present his claim for rents to the sheriff, and for the sheriff in turn to ask that the claim be taxed as costs. In support of the contention it cites § 523 uf Crawford & Moses’ Digest, which provides:

“The sheriff or other officer shall be allowed by the court necessary expense of keeping the attached property to be paid by the plaintiff, and taxed in the costs.”

The account for rent filed by appellee contained the statement that appellant took possession of the building on June 15,1928, and the itemized statement for the rents indicates that possession of the building* was retained until the 18th day of December, 1928. The court found that it retained possession thereof during this time through its receiver. This court on appeal must presume that the testimony adduced on the hearing, and omitted from the record, supported the finding of the court. If it did, the court was warranted in treating the intervention as a motion to tax the costs, either on the retention of the building by the sheriff or receiver. It may have appeared from the testimony that the sheriff or receiver retained the building under the direction of the appellant. In this view the proceeding adopted constituted a substantial compliance with the statute.

No error appearing, the decree is affirmed.


author: Kirby, J. Humphreys, J.

text:
    Jones v. State.
    Opinion delivered March 17, 1930.

      Harney M. McGehee, for appellant.

      Hal L. Nonvood, Attorney General, and Pat Me-haffy, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a conviction of violation of the statute on a charge of possessing burglary tools.

Appellant was indicted jointly with Hollis Ponder for violation of the statutes, § 2438, C. & M. Digest, the indictment charging in the language of the statute, ‘ ‘ accuse the defendants, of the crime of possession of burglary tools,” and specifically that the defendants “unlawfully and feloniously did have in their custody and possession a certain false key, which was then and there adapted, designed and commonly used for breaking and entering into store buildings, dwelling houses, etc.” A demurrer was filed and overruled, and appellant elected to sever and was separately tried.

The testimony shows, that about 4:45 in the morning of October 23, 1929, two officers of the police department of Fort Smith saw the appellant and Hollis Ponder with their car parked in the Cash Oil filling station at Fort Smith. As the officers turned the corner, they saw Jones, the appellant walk away from the filling station and his companion was stooped over the lights of the car. The officers stopped and questioned the appellant and his companion, and were told that they were on their way from Henrietta, Oklahoma, to Little Rock, and had stopped to fix their lights. One of the boys said they had purchased the car in Little Rock, and explained how it came to have an Oklahoma license on it, and the officers said one admitted that it was a stolen car. .They got into a row, and one of the boys drew his gun on one of the officers, who took guns off of both of them. One of the officers struck one of the boys on the side of the ja.w. The officer who stated that appellant had drawn his gun on him drew his gun, and said, “Drop your gun, you son-of-a-bitch, or I will kill you,” “and he dropped whatever he had in his hand at the time. ” The officers carried appellant and his companion up town and put them in jail, and sometime afterwards (the evidence does not disclose how long) one of them went back to the filling station to get his flashlight that he had dropped near the door of the station between the car of appellants and the door, and then discovered a piece of a skeleton key. Next morning it was discovered that the end of the skeleton key had been broken off in the lock of the door of the filling station, and, being taken out and matched with the part of the key recovered on the ground, it was shown to be the same key. Neither of the officers stated that appellant or his companion at any time had the key or any part of it in his possession, and they did state that they did not see the key in the possession of either of them. There was testimony showing that the broken key was “a false key” or a skeleton key, and was of the kind the burglars, used. They also said skeleton keys — “they are keys that open many locks,”'could be used by any one, and were used by a great many people in the opening of doors.

It is insisted for reversal that the court erred in overruling the demurrer to the indictment, and especially that the testimony is insufficient to support the verdict. The indictment charges the offense committed in the language of the statute, which does not provide that the person shall have the key to or implement in his possession with intent to commit the crime of burglary, etc., and was sufficient, and the demurrer was properly overruled. Satterfield v. State, 174 Ark. 733, 296 S. W. 63.

No witness saw or testified, however, that the appellant, his companion, or either of them, “had in his custody or concealed about, his person” this false key or any part of it. The broken key was not in the lock when the filling station was closed the evening before, nor any part of the key discovered, the piece on the ground or in the lock, before the return of the officers to the filling station after having arrested appellant and carried him to jail. The key could as well have been inserted and broken off in the lock between the time of the closing of the filling station the night before and the time appellant stopped the car at 4:45 the next morning, or between the time of his arrest and the return of the officer after taking Mm to jail. Circumstances at most raise an inference or suspicion against appellant, but such suspicion is no substantial evidence of the commission of a crime, and is not sufficient to support the verdict. Reed v. State, 97 Ark. 156, 133 S. W. 604; Cook v. State, 173 Ark. 711, 293 S. W. 32; Holford v. State, 173 Ark. 989, 294 S. W. 33.

The judgment must accordingly be reversed, and the cause remanded for a new trial.

Humphreys, J.

The circumstances are sufficient in my opinion to connect appellant with the skeleton key. Therefore I dissent.


text:
    Comer v. Comer.
    Opinion delivered March 17, 1930.

      Roy D. Campbell, for appellant.

      W. J. Dungan and Jones $ Wharton, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the chancellor correctly held that the transaction, the deed and contract of sale, did not constitute a mortgage, but erred in holding that he had waived his right to declare a forfeiture of the contract and resume possession of the lands. The contention that the deed and contract of resale constituted a mortgage was not supported by clear, unequivocal and convincing testimony, as the law requires, and the chancellor correctly held that it did not constitute a mortgage. Rushton v. McIlvcme, 88 Ark. 300; 114 S. W. 709; American Mortgage Co. v. Williams, 103 Ark. 484, 145 S. W. 234; Edioards v. Bond, 105 Ark. 314, 151 S. W. 243; Henry v. Henry, 143 Ark. 607, 221 S. W. 481; Mathews v. Stevens, 163 Ark. 157, 259 S. W. 736.

The court erred, however, in holding appellant had waived his right to declare a forfeiture of the contract by accepting benefits thereunder after his right to do so had accrued. Appellee failing* to perform the conditions of the contract and make the payments necessary for the repurchase of the lands in accordance Avith its terms, appellant had the right thereunder, also in accordance Avith its terms, to accept payments o>f the rent for the use of the lauds which AAmuld in no Avise be regarded a waiver of his claim of forfeiture of the right to purchase. Ish v. Morgan. McRae & Co., 48 Ark. 413, 3 S. W. 440; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Haus v. Emerson, 75 Ark. 551, 87 S. W. 1027; Carpenter v. Thornburn, 76 Ark. 578, 89 S W. 1047.

It is not claimed that the contract was not fairly entered into, did not express the intention of the parties or that there are grounds for reformation thereof. The testimonv is Anrtuallv undisputed that appellee, W. M. Comer, failed to perform his agreements to pav the installments of purchase money in accordance with the stipulations in the contract of sale and, ha.Au.ng failed to perform the conditions, was bound to the paAunent of rent under the terms of the contract. Having failed to meet. this contingency, plaintiff was entitled to the possession of the lands after giving notice to quit and judgment' for the rents due. The chancellor erred in holding otherwise, and the decree is reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion. It is so ordered.