author: McCulloch, C. J.

text:
    Bray v. Woodley.
    Opinion delivered February 4, 1924.
    1. Appeal and error — effect of sustaining demurrer to answer. —In determining upon appeal whether a valid defense was stated in an answer, to which the trial court sustained a demurrer, the facts stated therein will be treated as true.
    2. Pleading — legal conclusion. — An allegation that a contract was framed in the language used through fraud and mistake amounted to no more than a legal conclusion, and was insufficient to secure a reformation of the contract.
    3. Evidence — parol evidence rule. — A provision in a written oil and gas lease for a forfeiture unless a well was commenced or rental paid before a certain date could not be varied or contradicted by parol testimony that the actual agreement allowed a longer time, and an answer setting up such an oral agreement stated no defense.
    4. Mines and minerals — forfeiture of lease — notice.—Under an oil lease providing for its termination if no well was commenced by a certain date, unless the lessee paid a stipulated rental, notice of forfeiture was unnecessary to terminate the contract, and execution of new lease to others gave them the right to have the prior lease canceled as a cloud on the title.
    5. Mines and minerals — oil lease — waiver of forfeiture. — Under an oil lease, which lessor had become entitled to forfeit because of failure of lessee to pay the stipulated rental in lieu of drilling a well, if thereafter the lessee deposited the stipulated rental and the lessor agreed to accept the same as payment therefor, there was an acceptance of the rental money and a waiver of the right to insist upon a forfeiture.
    6. Mines and minerals — rights of purchasers of oil lease.— Under an oil lease, a waiver of forfeiture would be ineffective against subsequent purchasers or lessees without notice.
    Appeal from Union Chancery Court; J. 7. Stevens, Chancellor;
    reversed.

      Frank M. Betts, for appellant.
    1. If the facts stated in the answer, and every reasonable inference that may be drawn therefrom, constitute a defense, the demurrer should have been overruled. 52 Ark. 378; 75 Ark. 64; 107 Ark; 142; 96 Ark. 163, and cases cited; 210 S. W. (Ark.) 143.
    2. Contracts may lie reformed on the ground of mutual mistake, misrepresentation, etc. They may be reformed where there is no mutual mistake, as when there is mistake on one side and misrepresentation of material fact on the other. 174 S. W. 1158; 2 Pomeroy, Eq. Jur. 847-870; 104 Ark. 475. Plaintiffs’ remedy was by motion to make more definite and certain, not by demurrer, if the allegations in the answer were incomplete, ambiguous or defective. 91 Ark. 400; 96 Ark. 163.
    3. Acceptance of rent for the alleged defaulted period was a waiver of appellees’ right to declare a forfeiture. 180 Pac. 528; 175 Pac. 920; 180 Pac. 959; 79 Tex. 256, 15 S. W. 228; 220 S. W. 1078.
    4. .The third parties purchased the lease and assignment thereof with full knowledge of appellants’ rights.

      Patterson & Rector, for appellees.
    1. Appellant cannot invoke reformation, because (al the amended answer shows clearly that the terms of the contract were agreed upon and reduced to writing at the time the purchase.money was paid in escrow to the joint agent, or immediately thereafter, and, since the parties could not have known when the title would be approved, 'if at all, it would have been physically impossible for the forfeiture clause in the lease to have been written as appellant claims it should have been written; (b) because he does not definitely allege in his answer how the mistake occurred.
    2. There was no waiver or other act upon the part of Lovett that would estop him from claiming’ a forfeiture under the lease to Bray. 54 Ark. 499; 70 S. C. 195; 36 Ark. 114; 100 Ark. 399; 96 Ark. 609.
   McCulloch, C. J.

This is an action instituted in the chancery court of Union County to cancel a gas and oil lease executed by Sam and Ella Lovett to appellant Bray. Appellees are subsequent lessees under the Lovetts, and allege that appellant had forfeited his lease prior to the execution of the lease of the Lovetts to appellees, on account of the failure to begin drilling or to pay the stipulated rental. The lease contract between the Lovetts and appellant is in the customary form, stipulating a time for the beginning of the term within which drilling may be begun and consummated, and the arrangement for paying rentals for delay. The contract was dated January 15, 1921, and it contained the following clause :

“If no well be commenced on said land on or before the 15th day of January, 1922, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessor, or to the lessor’s credit in the First National Bank of El Dorado, Arkansas, or its successors, which shall continue as a depository, regardless of changes in the ownership of said land, the sum of forty dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date.”

It is alleged in the complaint that no well was commenced nor rentals paid on or before the 15th day of January, 1922. It is also alleged in the complaint that the Lovetts notified appellant of the forfeiture, and on February 11, 1922, executed to appellees another oil and gas lease covering the same land. .The Lovetts joined with the subsequent lessees as plaintiffs in this action.

The court sustained a demurrer' to appellant’s answer, and, upon the latter declining to plead further, rendered a final decree in favor of appellees, canceling the lease.

The case having been decided on demurrer, the facts must be ascertained from the face of the pleadings, and what We have to determine now is whether or not a valid defense was stated in the answer. The facts stated in the answer must, in determining’ that question, be treated as having been correctly stated.

Tt is, in substance, stated in the answer that- the stipulation in the deed providing a forfeiture if no well be commenced, or rental paid, on or before the 15th day of January, 1922, does not correctly state the agreement of the parties, and that the insertion of the stipulation in that form was done by fraud and mistake — that the contract was to be prepared and placed in escrow, subject to delivery upon approval of title, and that appellant was to have one year from. and after the date of the actual delivery of the contract, which was on February 2,1921. The allegation as to fraud and mistake amounts to no more than mere conclusion; no facts are stated upon which the charge of fraud or mistake is based. The allegation merely is that the contract was framed in that languag’e through fraud and mistake. This is not sufficient to constitute an allegation sufficient to entitle the party to a reformation of the contract. The remainder of the allegations in this regard constitute an attempt to vary the written contract by parol evidence. The stipulation in the lease with reference to time for operating under the lease was of the essence of the contract, and those terms cannot be varied or contradicted by parol testimony. The allegations are in conflict with the contract itself, which appellant admits in Ms answer that he executed, and no valid defense is shown by alleging a contrary parol agreement.

Under the contract, the forfeiture operated automatically, without notice of an intention to declare a forfeiture, and the lease subsequently executed to appellees by the Lovetts, covering the same premises, was sufficient to entitle them to cancel the prior lease, which was a cloud on their title. Harrell v. Saline Oil & Gas Co., 153 Ark. 104. Unless a well was commenced, or the rentals paid, within the time specified in the contract, or unless the forfeiture was waived by some act of the Lovetts prior to the execution of the second lease to appellees, or subsequently by appellees themselves, they had a right to cancel the lease.

In another paragraph in the answer it is stated that' appellant resides in the State of Missouri, and that he mailed to the First National Bank of El Dorado, St. Louis exchange for $40, the amount of the rentals due, which was received by the bank on January 23,1923, and placed to the credit of the Lovetts in accordance with the contract, and the next paragraph reads as follows:

“14. Defendant, answering further, says that plaintiffs are estopped from claiming any forfeiture of the lease in this: that immediately after placing the money to his credit in the First National Bank the defendant advised in person that the money was there, subject to his order, and plaintiff advised defendant, in the presence of disinterested witnesses, that he would accept of it, and did come to El Dorado for the purpose of accepting of it and withdrawing it from the bank, when he was over-persuaded by his co-plaintiffs to refuse same and demand a cancellation of the lease, which was more than fifteen or twenty days after plaintiff had stated he would accept of said money. He therefore expressly waived any right that he might have had to have insisted on a forfeiture, and, by reason thereof, plaintiffs, by his words and conduct, are estopped from seeking a cancellation of defendant’s lease in this cause.”

It will be noted that the two paragraphs, when considered together, allege, in substance, that the money was actually received by the designated depository, First National Bank of El Dorado, on January 23, 1923, and that immediately thereafter the lessor entered into an oral agreement with appellant to accept payment of the rental. If there was an actual acceptance of the rental after the expiration of the stipulated time for such payment, it constituted a waiver of the forfeiture. Cordell v. Enis, ante p. 41. The date of the alleged acceptance on the part of the lessor is not stated so as to expressly show that it was done before the subsequent lease to appellees, but it is fairly inferable, from the language used in the answer, that this acceptance was made prior to the execution of the second lease, for it «ays that it was done immediately after the money was placed by the bank to the credit of the lessor, which was on January 23, and the lease to appellees Woodley and others was not, according to the allegations of the complaint, executed until February 11. Of course, the waiver of the forfeiture would not be effectual against subsequent purchasers or lessees without notice. Is this language sufficient to show that there was an acceptance of the rental money? We think it is. The money was in the bank mentioned as the depository, and had1 been placed to the credit of the lessor, and the agreement to accept the money constituted a ratification of the act of the bank in placing the money to his credit. The effect was the same as if the money had been actually turned over to the lessor. It passed beyond the control of appellant, for he could not then have withdrawn the money from the bank. But, even if he did have the right to withdraw the money, he did not attempt to do so, and, on the contrary, relied on the promise of the lessor to accept it in payment of rental, thereby depriving appellant of the use of the money for a period1 of fifteen'or twenty days, according to the allegations of the answer. Under the principles announced in Cordell v. Enis, supra, this constituted a waiver.

Appellees were entitled to have the complaint made more definite and certain by a statement of the exact time and place and circumstances under which the alleged acceptance of the money was made; but the allegations are sufficient, we think, to show, in an imperfect way, that there was an acceptance of the rental, which constituted a waiver of the forfeiture, and which was effective not only against the lessor, but also against subsequent lessees with notice.

The court erred therefore in sustaining a demurrer to the answer, and for this error the decree is reversed, and the cause remanded with directions to overrule the demurrer.


source: Caselaw Access Project

author: ■ McCulloch, C. J.

license: Public Domain

text:
    Yancey v. Parnell.
    Opinion delivered February 4, 1924.
    1. Fraud — sufficiency of evidence. — -In an action for damages for misrepresentation in a contract for the sale of a farm, evidence held to sustain a finding of the chancellor that there was no misrepresentation by the vendor as to the acreage under cultivation.
    2. Fraud — sufficiency of evidence. — In a purchaser’s action for damages for misrepresentation as to the amount of land under cultivation in the farm sold, the fact that the written contract contained no stipulation as to the acreage under cultivation was a significant fact in determining the weight of evidence as to misrepresentation.
    Appeal from Chicot Chancery .Court; E. G. Hammock, Chancellor;
    affirmed.

      Golden S Golden, for appellant.
    Plaintiff was not estopped by his 'settlement for the land taken up by tlie railroad, nor by his other acts. Under the facts in this case, he was entitled to hold to his contract, and to demand what he had purchased and paid for. 47 Ark. 168. Where a representation is made of a fact that has nothing to do with opinion, and is peculiarly within the knowledge of the party making it, the one receiving it has tlie absolute right to rely upon its truthfulness, though the means of ascertaining its falsity were fully open to him. 47 Ark. 339; 97 Ark. 269; 96 Ark. 371; 99 Ark. 438, 442; 89 Ark. 325. It does not, therefore, lie with the defendants to say that plaintiff should not have believed the representations made. They were made as facts, backed with guaranties, and were, or should have been, within the knowledge of defendants or their agents. 71 Ark. 91, 97, 98; 82 Ark. 20, 23; 30 .Ark. 535, 536; 142 Ark. 189; 218 S. W. 657, 659; 109 Ark. 109; 101 Ark. 95. See also 19 Ark. 102; 25 Ark. 541; 61 Ark. 120. The principle of laches cannot apply. Plaintiff had the right to take what he was offered and bring suit for what he purchased and failed to receive, within the three years’ limitation. 139 Ark. 447.

      Williamson £ Williamson, for appellees.
    The decision of the chancellor was reached on a hearing and consideration of conflicting testimony, and his findings upon the facts must be affirmed on appeal, unless contrary to a clear preponderance of the evidence. 129 Ark. 121; J4. 301; 130 Ark. 178. Had this been a very large tract of land, there might have been some excuse to presume that the appellant relied upon some other person’s statements as to the amount of cleared acreage; but here the rule is applicable that, where a small tract of land is involved, the vendee must exercise reasonable prudence, and not rely upon the person with whom he is dealing to protect his interests. 147 Ark. 505. Fraud will not be presumed. One who alleges fraud must prove it bv evidence which is clear, satisfactory and convincing’. 82 Ark. 24: 20 Ark. 216; 18 Ark. 123: 6 Ark. 308; 31 Ark. 554; 25 Ark. 225; 33 Ark. 259; Id. 727; 17 Ark. 151; 37 Ark. 145; 99 Ark. 45; Am. Oas. 1913-A, 960. On the question of representations, see 95 Ark. 875; 82 Ark. 20; 71 Ark. 91, 97; 83 Ark. 403; 19 Ark. 522. If the means of information as to the subject of a misrepresentation are equally accessible to both parties, they will be presumed to have informed themselves, and, failing therein, must abide the consequences of their own carelessness. 95 Ark. 131; Id. 523; 47 Ark. 148; 46 Ark. 337; 31 Ark. 170; 16 Ark. 114; 11 Ark.-58. See also 74 Arle. 231.
   ■ McCulloch, C. J.

Appellant purchased from appellee a tract of land in Chicot County, and a lot in the town of Dermott, in that county, aggregating in area about 100 acres, for the price of $100 per acre, making a total price of $10,000, payable partly in cash and the balance in installments, evidenced by promissory notes. Appellant instituted this action against appellee in the circuit court of Chidot County to recover damages alleged1 to have been sustained by reason of fraudulent misrepresentations of appellee and his agents in regard to the amount of land in cultivation. Appellant alleged in his complaint that appellee and his agents represented to him that there were ninety-three acres of land in cultivation, and thereby induced him to' make the purchase, but that he ascertained by actual survey, after consummation of the purchase, that there were only sixty-eight and one-lialf acres cleared and in cultivation. Damages were laid in the sum of $2,450, the difference in the market value of the land as represented and as its condition 'was found to be in fact:

Appellee answered, denying all of the allegations of the complaint with respect to false representations, and also pleaded a settlement with appellant whereby he paid to appellant the sum of $100 in adjustment of differences in regard to shortage in acreage, as well as all other claims for reduction in the price.

The cause was transferred to the chancery court, without objection, and proceeded to trial in that court, which resulted in a decree in favor of appellee, dismissing appellant’s complaint for want of equity.

Appellant testified, in substance, that he lived in Faulkner County at the time he entered into negotiations for the purchase of this land from appellant, and that he was induced to go down to Chicot County to look at the land by an advertisement issued and circulated by Bennett & Daniels, real estate agents, who were acting as agents for appellee in the sale of this land, representing the total area of the tract, and stating that there were ninety-three acres in cultivation. He testified that he went to Chicot County and looked at the land, being shown by Bennett & Daniel, and that the representation was made to him that the tract contained at least ninety acres in cultivation. He testified that those agents told him that, if he would purchase the land, they would guarantee that there was as much land as ninety acres in cultivation. He testified that appellee Parnell also made the same statement to him, and that these statements were relied on and constituted one of the inducing causes for making the purchase. Other witnesses corroborated appellant in his statement concerning the alleged representations. Appellant also introduced as a witness another real estate dealer in Chicot County, who testified that.this land had been placed in his hands for sale by Bennett & Daniel, with authority to represent that the tract contained eighty-five acres in cultivation. On the other hand, Bennett & Daniel, as well as appellee Parnell himself, testified that they made no such representations to appellant concerning the amount of acreage. Bennett & Daniel testified that the advertisement which the}7' circulated did not contain any representation as to the amount of acreage, as claimed by appellant. The advertisement was not introduced in evidence by either party, and appellant stated that he had lost or misplaced the copy of the advertisement which had come into his possession.

It also appears, from proof adduced by appellee, that a controversy arose between the parties as to a slight shortage in acreage, something less than an acre, and that they settled this controversy by appellee deducting $100 from the purchase price. Appellee and his witnesses testified that the agreement was that $100 credit was allowed in satisfaction of any claims for reduction in price, either by reason of shortage in amount of land or in the amount of cultivated lands.

The decision of the case comes down to a question of fact, and, after due consideration of all the evidence, we are unable to discover that the finding of the chancellor is not supported by a preponderance of the evidence: There is a sharp conflict on both of the issues as to whether or not there was a misrepresentation as to the amount of land in cultivation, and also as to the substance of the settlement between the parties when the sum of $100'was credited. There was a written contract between the parties concerning' the sale and purchase of the land, and it contains no statement with reference to the amount of land in cultivation, nor as to any guaranty by appellee as to the amount of acreage. The failure of the contract to contain such a stipulation, however, does not preclude appellant from recovering damages for appellee’s misrepresentations, but it is a significant fact, in testing the weight of the evidence, that, notwithstanding appellant’s testimony that there was a misrepresentation as to the amount of land in cultivation and a verbal guaranty concerning it, all reference to it was omitted from the written contract.

After reaching the conclusion that the finding of fact by the chancellor is not against the preponderance of the evidence, and there being no questions of law involved, it becomes our duty to affirm the decree, and it is so ordered.


author: ¡Wood, J.

text:
    Grimes v. McKee.
    Opinion delivered February 4, 1924.
    1. Appeal and error — insufficiency of abstract. — Where appellant’s abstract does not contain the material parts of the decree, nor show the manner of giving testimony, or that the testimony as abstracted was all that was considered by the court, the decree will be affirmed for non-compliance with rule 9.
    2. Appeal and error — presumption of correctness of decree. — It will be presumed on appeal that the decree appealed from is correct until the contrary appears by compliance with rule 9.
    Appeal from Benton Chancery Court: Ben F. McMahan, Chancellor;
    affirmed.

      Sulims S Ivie, J. Wythe Walker and W. D. Mauck, for appellants.
   ¡Wood, J.

The appellants, in their abstract, state that “the only issue in this case is the right of curtesy of John Grimes, appellant, the right of the court to order a sale of a portion of his land, and the principal contention in the whole matter is his establishing’ the validity of the deed said to be executed by John Grimes to his wife, Martha Grimes. In order to sustain the allegations of the separate answer and cross-complaint of the appellant, the following testimony is submitted for the consideration of the court.” Then follows what purports to be the testimony of appellant, John Grimes, and also of the witnesses John -C. Grimes, Dr. T. M. Rice, Munce Grimes, and the rebuttal testimony of John Grimes, followed by what purports to be the testimony of Ira Grimes in his own behalf. After setting out this testimony, the appellants state in their brief that there are three questions to be considered: First, the right of curtesy of appellant; second, the order of sale as to a certain parcel of land — -200 acres; and third, the validity of the deed of appellant to his wife. Then follows a statement in the brief to the effect that the most important question is the validity of the conveyance of the appellant to his wife. We do not find that this deed, or the purported contents thereof, the validity of which appellants seem to be calling in question, and which the trial court held to be valid, has anywhere been set forth in the abstract. The only reference to the pleadings which made up the issue upon which the trial was had- and the decree below rendered is as follows:

“The separate answer and cross-complaint of Ira Grimes, the separate answer and cross-complaint of John Grimes, cross-complaint against Ira Grimes, Myrtle Hudson, guardian of Levi Grimes, and the separate answer and cross-complaint of John O. Grimes, J. M. Grimes, Elizabeth Brown, Mae Grimes, cross-complainants, against Ira Grimes, Myrtle Hudson, guardian of Levi Grimes, a minor, contain the following allegations and denials: Appellant, John Grimes, denies that Martha Grimes was the owner of the land mentioned in the cross-complaint of Ira Grimes, and alleges his physical condition during the fall and winter of the year 1914. Also alleges the condition in which the deed, if a deed was procured at all, or if a deed was executed by him to his wife, Martha Grimes, showing the manner of the execution of the deed, his condition - at the time of the execution, and the allegation of the children of Grimes as to the execution of a deed by them to their father, John Grimes, appellant herein, and further allegation of the conduct of Ira Grimes, and alleging the amount of indebtedness, to whom paid, prior and since the death of his wife, and the prayer of the- separate answer and cross-complaint of appellant.”

The reference to the decree is as follows: “Said cause aforesaid, to-wit, cases 2341 and 2388, were consolidated by agreement and to proceed as case 2109. The further orders and proceedings appearing in Tr. 45 to 55, inc. Issues between the various parties to this suit are, by order of the court, set'for hearing April 15, 1922, to be heard upon such depositions as may have been taken in the case and oral evidence produced by the parties in open court.”

Now, it is impossible for this court to get at the merits of. this lawsuit upon the above abstract. The only reference to the decree in the abstract shows that the cause was to be heard upon oral evidence, and, for aught the abstract' shows, the decree itself may recite that' it was heard upon oral testimony. The abstract recites that “in order to sustain the allegations of the separate answer and cross-complaint of appellant, the following testimony is submitted for the consideration of the court.” 'But there is nothing in the abstract to show whether this was testimony by deposition or oral-testimony, and nothing to show that the testimony as thus abstracted was all the testimony considered by the court upon which the decree was bottomed. We do not know what other testimony, oral, written, or documentary, the court might have considered. The abstract wholly fails to comply-with rule 9 of this court, which requires that “the appellant shall file with the clerk of this qourt an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary t-o a full understanding of all questions presented in this court for decision.”

In one of our late cases we said: “It is quite apparent that it would be necessary for each judge to take the transcript and explore it in order to fully understand the questions presented by this appeal to the court for decision. The business of this court could not be dispatched without the enforcement of this rule. It is a rule of long standing, and has been rigidly enforced by this court, as will be seen by reference to the 'following cases, covering a long period of time.” (Citing numerous cases). Hubbert v. Mo. Pac. Ry. Co., 136 Ark. 188. In order to conserve the time of this court, in the present congested condition of its docket, it is now more important, perhaps, than ever before in the history of the court that this rule be strictly enforced.

The presumption is that the decree of the trial court is in all things correct, until the appellants make the contrary appear by complying with rule 9, supra. This they have not done. Tire decree is therefore affirmed.


author: Wood, J.

text:
    Missouri Pacific Railroad Company v. Warren.
    Opinion delivered February 4, 1924.
    1. Assignments — statute regulating assignment of wages. — - Crawford & Moses’ Dig., § 7133, relating to the assignment of wages to secure a loan, has no application to an assignment of a portion of an employee’s wages to pay for a watch.
    2. Assignments — binding effect. — Where an employer accepted and paid an order of his employee to pay to another a certain part of his wages, the employee was bound by the order.

      3. Master and servant- — right to recover wages and penalty. — In an action by a discharged employee for wages and for the penalty, under Crawford & Moses’ Dig., § 7125, where the undisputed testimony showed that the money due him, less the amount of his order in favor of a creditor, which the defendant had paid, was ready for him within seven days after his discharge, and that when he called for his pay he failed to identify himself, it was error to direct a verdict for the whole amount of his wages and the statutory penalty, instead of a verdict for the balance due with interest.
    Appeal from Cross Circuit Court; W. W. Bandy, Judge;
    reversed.

      Thomas B. Pryor and C. E. Daggett, for appellant.
    The evidence does not disclose a request by the plaintiff to have his money sent to a regular station, or that he applied at such station within seven days for payment. Hence, the verdict should have been directed for the appellant. 87 Ark. 574. The case does not fall within the rule announced in Biggs v. Railway, 91 Ark. 122. The verdict should have been directed for the defendant,’ because the evidence shows that the plaintiff obtained the benefit of the order given against his wages. 83 Ark. 445.

      J. G. Brookfield, for appellee.
    Appellant was liable for not paying the balance,- even if the assignment was a good defense. 75 Ark. 137; 130 Ark. 266. But the assignment was no defense. C. & M. Digest, § 7133, 7134. As to the propriety of enforcing the penalty, see 86 Ark. 147. .
   Wood, J.

This action was instituted by the appellee against the appellant, before a justice of the peace,’ to recover the sum of $32.70 alleged to be due the appellee by the appellant as wages. The appellee alleged that he was in the employ of appellant as laborer, and that appellant was due him the above sum for his labor; that appellant discharged the appellee on August 16, 1922, without paying his wages as above, but agreed to pay him at Wynne Station; that appellee demanded of the agent at Wynne Station, each day for seven days, his wages, and same were not paid. Appellee prayed judgment for his wages and for a penalty in the sum of $2.90 per day from the date of Ms discharge.

The trial before the justice resulted in ,a judgment against appellant, on the 15th day of September, 1922, for $32.77 as wages, and $52.77 penalty, and costs. The company appealed to the circuit court. There the appellee amended his complaint and set up . the judgment in the justice court, alleged that it had not been paid, and prayed for judgment in the sum of $240.70 in addition to the judgment in the justice court, the same being the amount of the penalty, at the rate of $2.90 per day, which had accrued at that date, and for the sum of $2.90 per day until the amount of his wages and penalty for nonpayment had been paid.

According to the undisputed evidence, the appellee was in the employ of appellant as day laborer, and was discharged on August 16, 1922, at which time appellant was due him for wages the sum of $31.90, less seventy cents hospital fees. Before his discharge the appellee had purchased a watch, and had given .an order on the appellant, directing it to pay to the party from whom he had purchased the watch the sum of $27 out of his wages, as same came due. The order contained a provision to the effect that, in the event the employee was discharged, the total amount of wages due at that time should be deducted from the amount of the order. The appellant' accordingly deducted from the amount of wages due appellee the amount of the order, leaving a balance then due appellee of $4.20.- The foreman, under whom appellee worked, issued to him at the time of his discharge the following:

“Missouri Pacific Railroad Co.
“Certificate of Identification. .
“Pay Time Voucher.
“At Wynne Station. Wynne Station, August 16, 1922.
“That W. Warren was employed as laborer during the 1st period month of August, 1922, and is entitled to the amount reported in his favor on time-book for (B and B).
(Extra Gang).
“No.-Section No. 210, Memphis Division, for that
month. (Signed) D. Sanders, foreman.
“W. Warren, workman.
“Notice: This certificate is not transferable, and will not be honored if presented by any other than the person to whom issued, who must sign the same in the presence of person issuing same and at time of issuance. Voucher payable at station indicated in upper left-hand corner of this form, unless forwarded, at the request of person in whose favor issued, to another station for delivery.”

The appellee testified that, when the foreman handed him the above paper, he said: “Here is your time, boy; you will get your money at the depot.” Appellee went over to the station on the third and fourth days thereafter, and did not get his money, and then went to see the timekeeper, who told him his time was not there, but that he would “get it out pretty soon.” Appellee went back to the station on the eighth day, qnd the agent came up to the window, and lie had about three one-dollar bills in his hand and some more change — appellee did not know how much — and said to appellee, “Where is your identity?” and appellee replied, “I have not got it,” and the agent said, “You will have to get it,” and appellee told him that he did not have it. Appellee further testified that they were to take twenty dollars out of his wages.

Upon the above testimony, appellant asked the court to instruct the jury to return a verdict in its favor, which request the court refused, but, on its own motion, instructed the jury to return the following verdict:

“We, the jury, find for the plaintiff in the sum of $32.77, actual wages due, and penalty in the sum of $182, total $234.90. F. S. Payne, foreman.”

The appellant objected, and duly excepted to the instruction of the court. Judgment was rendered in favor of appellee for the amount of the verdict, from which is this appeal.

Act 34 of the Acts of 1911, page 15, entitled “An act to regulate the assignment of wages,” §§ 7133 and 7134 of C. & M. Digest, has no application to the facts of this record, for the order adduced in evidence by the appellant was not an assignment of wages to secure a loan. It was simply an order from the laborer to pay a certain amount of his wages to the one from whom he had purchased a watch. The appellant had accepted .and taken up this order of the appellee, as shown from the indorsements of the payee on the back of same. Appellee admitted that he signed the order, and he is. therefore bound by it. The undisputed testimony shows that the appellant’s timekeeper, who had charge of the record of the time made by laborers, deducted from appellee’s wages the amount of the above order and seventy cents hospital fee, and made out a check for $4.20, and delivered it to appellant’s agent at ¡'Wynne within seven days, and the check for this amount of money was in the hands of the station agent at Wynne on August 21, 1921, less than seven days from the time of appellee’s discharge on August 16, 1922. When the appellee was discharged he was given a certificate of identification, or pay-time voucher, naming Wynne as the station where he was to receive his pay. Appellee testified that, after three days, he went over to the station to get his money, and didn’t get it, and went on the fourth day and didn’t get it. He then went back to the timekeeper, then on the eighth dav back to the window, and was asked where his identification card was, and replied that he did not have it. He also testified that the one making this incmirv had about three one-dollar bills in his hand, and more change — appellee didn’t know how much.

The appellee was bound by his order which the company accented and paid to the Payee therein. This order was a valid contract between the appellee and the appellant, by which the appellee bound himself to pay the latter the amount of the order out of his wages. The appellant therefore, at the time it discharged the appellee, was due him only the sum of $4.20. Stewart v. Weaver, 83 Ark. 445.

The burden was upon the appellee to prove that the appellant had not complied with the provisions of § 7125 of Crawford & Moses’ Digest, and that he was therefore entitled to the penalty prescribed therein for the nonpayment of the wages due him. The proof upon the part of the appellee does not meet this burden. On the contrary, the undisputed testimony shows that the wages due the appellee at the time of his discharge were sent to appellant’s station agent. But, if it be conceded that it was understood between the appellee and the foreman, at the time of his discharge, that the appellee was to receive his pay at the station of Wynne, nevertheless the undisputed testimony shows that the amount due appellee on his wages at the time of his discharge was sent to the station agent at Wynne within seven days after appellee’s discharge, as above stated, and the appellee does not prove that within that time, or after, he called for his money and identified himself so as to justify the agent in paying him the amount. On the contrary, his testimony shows that, on the eighth day after his discharge, when he called at the station for his pay and was asked for his identification card, he replied that he didn’t have it. The appellee does not prove that he called for his wages at Wynne within the seven days after his discharge and identified himself as the one who was entitled to it. He does not ¡Drove that he presented his identification card. See Wisconsin-Arkansas Lumber Co. v. Thompson, 87 Ark. 574. It occurs to us therefore that the court erred in instructing a verdict in favor of the appellee. The judgment will therefore be reversed, and, inasmuch as the ease has been fully developed on the evidence, judgment will be entered here in favor of the appellee for the sum of $4.20, the amount due from the appellant to the appellee, with interest thereon at the rate of six per cent, from August 16, 1922.


text:
    Cook v. State.
    Opinion delivered February 4, 1924.
    1. Criminal law — specific objection to language of instruction.— Where an instruction is not inherently erroneous, the attention of the court should be drawn to any objection which goes merely to the language of the instruction.
    2. Witnesses — cross-examination of state’s witness. — In a prosecution for murder it was not error to refuse .to permit defendant to ask a State’s witness concerning a threat against defendant by deceased, where such matter' was not relevant to the examination of the witness in chief, and defendant refused to make the witness his witness.
    3. Homicide — threats to kill defendant’s daughter. — It was not error in a murder case to exclude testimony of defendant’s daughter that deceased had threatened to kill her.
    4. Homicide — admissibility of threats. — Where it was a question as to who was the aggressor in a conflict resulting in a homicide, it was error to exclude evidence of threats to kill defendant, recently made by deceased.
    Appeal from Baxter Circuit Court; John C. Ashley, Judge;
    reversed.

      W. U. McCabe, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Won. T. Hammock, Darden, Moose and J. 8. Abercroonbie, Assistants, for appellee.
   Wood, J.

F. M. Cook, appellant, hereafter called Cook, was indicted by the grand jury of Baxter County, Arkansas, for the crime of murder in the first degree in the killing of one Jasper Wilson, on or about the 24th of August, 1922, in Baxter County. He was tried on the 15th of September, 1923, and convicted of murder in the second degree, and sentenced, by judgment of the court, to imprisonment in the State Penitentiary, for a period of fifteen years. He appealed from that judgment.

The facts are substantially as follows: One Jim Wilson was the tenant of Cook, on a farm in Baxter County. Jasper Wilson was his stepson. The Wilsons had the place rented for the year 1922. Their lease had not expired on the 24th of August, 1922. There were two barns on the place that the Wilsons rented. Cook had taken possession of .what is called, in the record, “the upper barn.” This had aroused the animosity of the Wilsons against Cook. On the morning of the 24th of August, 1922; the elder Wilson was preparing to go bee-hunting, and took his gun along, as Mrs. Wilson testified, to kill a squirrel. Jasper Wilson was taking a cow to the dipping vat. . Cook had brought a load of hay to put in the lower barn. Wilson forbade him, and Cook’s wagon was stopped in the gate. Jim Wilson went 'back to his house for his gun, and Cook went back and called to one Celia Everidge, who was living with Cook, to bring his gun. After they secured their guns they returned to the lot where the wagon of hay was standing, and there the fatal rencounter occurred, in which Cook killed the two Wilsons. When Cook returned, Mrs. Mary Wilson, wife of Jim Wilson, stated that she was present. She had anticipated trouble, and had gone to'the barn. She saw Cook returning, running down the hill as fast as he could. She hollered to him to stop and not have trouble, but when he got as close as he wanted to he threw his gun to his face and fired at her husband. When she saw him throw his gun to his face, she looked around to see where her husband was, and he was raising his gun to his face. They both fired about the same time. Then she looked and saw her stepson standing back of her. Another shot was fired. She was so addled she did hot realize what was going on and didn’t know who fired that shot, but, when she came to herself, she looked and saw her husband staggering down the hill, and falling. She went to him and. commenced working with him. She didn’t know that any more shots were fired. She remembered that'she had seen Jasper, and called to him, but he didn’t answer. Then she started back towards the barn, and saw him sitting against the fence, with blood running' out of his mouth and nose, and she knew that he was killed, too, though he was not yet dead. After her husband fell, Cook came into the lot and walked by, and she told him that he had killed her husband. He replied, “I am shot, too.” He went on towards the-barn, in the direction of where she found Jasper Wilson; didn’t know whether he had shot the boy before or after he passed. Jasper Wilson was eighteen years old. They had had no trouble to speak of before. When she found the boy, there was a shotgun close by, sticking through a crack in the fence, two or three feet away from him. The lot was grown up in weeds, and the boy was standing by the path, and it was low there, so that the weeds hid him from his waist down to his feet. Witness’ husband had a Winchester at the time he fired the shot. He had just one shell.

It was shown that two empty 12-gauge shotgun shells were found at the front end of the wagon, indicating where the party stood who did the shooting. Also there were two empty shells at the back end of the wagon. The weeds had been cut from the hind end -of the wagon to the point where Jasper Wilson’s body lay. His body was found at the back side of the lot, east of the barn, and no shells were found in that vicinity that indicated any shooting. It was found where one load of shot had gone through the weeds and cut them down; there was the sign of blood where Jasper Wilson was standing, and the sign of blood, showing that he went toward the trail way where he fell. Young Wilson was shot in the back, and also in the head. He was lying at the fence, with his head shot all to pieces, and his hat was shot off, and on the opposite side from him was a shotgun, loaded, with one shell in it. He was shot in the left side and in the back part of his head. It was thirty-six yards from where young’ Wilson was to the wagon where they found the two shotgun shells which had been fired. The shot' found on top of the rail fence were in line with the place where the boy fell and the point where they found the shells at the wagon.

There was testimony on behalf of the State tending to prove that, on the morning of the killing, Cook was talking to a bunch of men, and said, “Me and the old man got into trouble, and he shot me and I shot them. ’ ’ He further said, “I have shot those people, and I want yon boys to go over there and take care of them.” He didn’t state who they were, but the witnesses knew that he had reference to the Wilsons, and went over there, and found the Wilsons dead. Oook further said, in the same conversation, “They come out on me with their guns, and the boy popped out of the weeds with a gun and shot me in the eye with a twenty-two, and I went back to the barn and hollered to Celia to bring my shotgun, and she damn sure brought it. ’ ’

Another witness for the State testified to the effect that he saw Cook, on the day of the killing-, after the same had occurred, and Cook told witness that he (Cook) went to put a load of hay in the barn, and Wilson said, “I will kill you before I let you put the hay in the barn,” and dared him to put it in the barn, and he (Cook) went after his gun, and he “damn sure used it.” This witness also said that lie heard Cook tell Doctor Matthews, when the doctor was treating- his wound, as follows: “Just as I come around and raised my gun he raised his gun, and we both shot at the same time, or we both fired about the same time.” Cook was asked, in this conversation, how the boy came to shoot him, and he replied that the boy told him he had killed the old man, and not to shoot any more, and the boy started to shoot, and he shot the boy.

Dr. Smith'testified that he treated Marion Cook and Celia Everidge for injuries about the 24th of August, 1922. He asked Cook what was the trouble, and Cook said, “I have been shot.” He also said that he killed a couple of men, and that he had to do it. Witness found a gunshot wound just inside the left eye and one about his right eye. He took out a shot from one of the wounds, and it appeared to be, a No. 4 squirrel shot. Witness stated that, from the nature of the shots and the direction from which they entered Cook’s face or head, Cook could not have been looking directly at his assailant at the time the shot was fired that inflicted the wounds. Celia Everidere was also shot.

Celia Everidge, who lived on the place with Cook, testified to the effect that Cook and one Brewer, on the morning of the killing, had taken a load of hay to the lower barn, and had been gone only a few minutes when Wilson came by their camp, muttering and growling. He looked at witness for a second and said, “I am getting-tired of looking at that damn son of a b-, and I will settle with him this morning,” and went on in the direction of where Cook and Brewer were. A few minutes later she heard Cook hollering, and supposed he was calling her to come on and go home, and she started and looked up, and saw his gun, and picked it up and started down the hill to where they were, and heard them talking, and knew from the way they were talking that there was going- to be trouble. She hurried on to try to stop it. When she got to Cook, he grabbed the gun out of her hand, and stated that Wilson was going to kill him. She and Brewer and Mrs. Wilson begged Wilson not to kill Cook, and Wilson repeated the words just used. The first tiling witness knew, the shotgun the young man had was right on her. He was over to the right of the wagon, and standing where no one could see him except witness. Cook could not see the boy from where he was. When the boy shot, she fell, and, as she got -up, they shot from the weed thicket from the left of the wagon, and witness heard the gunshot and saw Cook falling, and he got up and -wiped the blood out of his face, and Wilson came over to the back end of the wagon, and, as he came around, Cook was getting up, and, as Wilson got to the back end of the wagon and had his gun to his face, Cook brought his gun up and they both fired at once. Cook stood there, and Wilson ran around back of the wagon and fell. All at once Jasper raised up in the weed thicket and shot Cook, and then squatted down. As the -witness -went to assist Mrs. Wilson she saw the young man kicking- and scrambling by the fence on the ground, and as she came back he was sitting- or lying up against the fence, and holding* his gun in his hand, with the muzzle pointing up.

Witness Mary Cook, the daughter of Cook, stated that she knew Jim and Jasper Wilson. Jasper Wilson made some threats against the life of Cook. She went to see if the mules were wasting the crops, and could not find them, and she went to see Wilson to see if hexhad seen them, and he came out of the house and said, “I intend to kill old man Cook if powder and lead will burn,” and Jasper Wilson said the same thing. She told Cook about this threat a short time before the killing.

Cook himself - testified that, if he killed Jasper Wilson, he did not know it. His testimony was to the effect that he didn’t see Jasper Wilson there that morning, and had not seen him since the day before. He stated that old man Wilson had threatened to kill him that morning, and his testimony substantially corroborates the testimony of Celia Everidge and Thad Brewer as to what occurred at the time of the fatal rencounter; that he and Wilson fired at each other about the same time, and, as the old man went down, he (Cook) was looking to see where he was, and a gun fired over in the weeds and hit him, and he looked and saw the muzzle of the gun sticking up out of the weeds, and he aimed low down, about where he thought the stock of the gun would be in the weeds, and shot twice, and then turned and ran up the hill.- ’

Cook offered to prove by Green Treat the following: ”1 met two parties along about the last of July, 1922, near Marion Cook’s place, who said the}'- lived on Marion Cook’s place; that the young man and the father were together. The young man stated they lived on Marion Cook’s place and renting land from him, and stated that if Marion Cook fooled with him he would kill him, and that the older man, who was present with the boy, said to the boy for him to hush up — that, if he was going to do anything like that, it was best for him not to be talking that way. This conversation took place .a few weeks before the killing of James and Jasper Wilson. Also that witness, a few days before the killing, saw Marion Cook in Big Flat, and told him .that these parties had threatened to kill him, and further, that witness would state that he was near the Marion Cook place, doing some mining work, and just passed through. Marion Cook’s field, where this killing occurred, and that he didn’t know what these parties’ names were, but that he met an old man about sixty years old and a boy whom he judged to be about twenty years old, and that the older man addressed the younger man as his son.”

The court would not permit the offered testimony to be introduced. Cook duly excepted to the ruling of the court.

The court instructed the jury on the law of murder, manslaughter, and self-defense. Only a general objection was saved to the instructions. None of the instructions were inherently erroneous, and there was no reversible error in the giving of same. The attention of .the court should have been drawn to any objection which goes merely to the language of the instructions. There was no reversible error in refusing to allow the witness, Mary "Wilson, to testify that Jasper Wilson told her “to tell that red-headed son of a b-, Marion Cook,” not to show himself on the place, or “we will kill him.” The court would not allow this testimony to be introduced unless the defendant made Mary Wilson his own witness. The court ruled correctly that this was original testimony, not responsive to the examination of the witness in chief, and it was only proper for the appellant to elicit such testimony by making the witness his own, which he failed to do. To avail himself of this testimony, appellant did not have to reintroduce the witness, but appellant should have made the witness his own for the purpose indicated.

There was no error in excluding from the jury the testimony of Mary Cook, to the effect that Jim Wilson ran at her with a knife, and threatened to pull her off her mule and kill her. The appellant was on trial in this case for the killing of Jasper Wilson, and this testimony of Mary Cook was not relevant to the issue being tried.

The court erred, however, in refusing to allow the proposed testimony of Green Treat to be introdnred. The court should have permitted the testimony of this witness, which the appellant offered as set forth in the record, to go to.the jury. The foundation for its introduction was sufficiently laid. It was shown to the court that the threat which tlie appellant thus offered to prove was made by Jasper Wilson against the life of the appellant. The testimony was not susceptible of any other conclusion. The description of the parties was sufficiently accurate to identify the elder person as Jim Wilson and the younger one as his son, Jasper. Such being the case, the testimony was competent, because it was an issue in the case as to who was the aggressor in the fatal rencounter, and in all such cases threats are admissible when they tend to explain or palliate the conduct of the accused. They are “circumstantial facts which are a part of the res gestae whenever they are sufficiently connected with the acts and conduct of the parties so as to cast light on that darkest of all subjects, the motives of the human heart.” Patmore v. State, 29 Ark. 248; Burton v. State, 82 Ark. 595, and other cases there cited.

The above proffered testimony was, at least, sufficient to go to the jury to determine whether Jasper Wilson made the alleged threat.

The alleged errors predicated upon the remarks of the prosecuting attorney in argument aré not likely to occur again, and it is unnecessary to comment upon these. For the error indicated the judgment is reversed, and the cause remanded for a new trial.


text:
    Sluder v. State.
    Opinion delivered February 4, 1924.
    1. Criminal law — credibility of witnesses. — The credibility of witnesses and the weight of evidence are questions for the jury.
    2. Criminal law — conclusiveness of verdict. — On appeal from a conviction of selling intoxicating liquor, the evidence will be given its highest probative force iii favor of the verdict.

      3. Intoxicating liquors — sale of jamaica ginger. — A conviction of selling intoxicating liquor held sustained by proof of selling Jamaica ginger of high alcoholic content.
    Appeal from Johnson Circuit Court; J. T. Bullock, Judge;
    affirmed.

      Jesse Reynolds, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Wm. T. Hammock, Barden Moose and J. 8. Abercrombie, Assistants, for appellee.
   Wood, J.

Appellant was indicted under § 6160' of Crawford & Moses’ Digest, which reads as follows: “It shall be unlawful for any person, firm or corporation to manufacture, sell, or give away, or be interested, directly or indirectly, in the manufacture, sale or giving away of any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors, within the State of Arkansas.”

The indictment followed substantially the language of the statute, charging that appellant did “wilfully, unlawfully and feloniously sell and giva away, and was wilfully, unlawfully and feloniously interested, directly and indirectly, in the sale and giving away of ardent, vinous, malt, spirituous and fermented liquors and alcoholic spirits and a certain compound and preparation thereof commonly called tonics, bitters and medicated liquors, ’ ’ etc.

Charlie Crowder testified that about July, 1923, he saw Ward Love buy some extract of appellant at Knoxville. Love bought four or five bottles. He drank it— witness helped him to drink it. It was either lemon or vanilla extract. It was stamped on the bottle, “Ninety-five per cent, alcohol.” It didn’t intoxicate witness or Love — didn’t taste like it was intoxicating — didn’t taste good, and witness didn’t drink much of it. This all occurred in Johnson County, Arkansas.

Witness Love testified, corroborating the testimony of Crowder. He stated that he bought of appellant and drank three, four or five bottles of extract. Witness, among other things, was asked to tell the jury whether the extract had an intoxicating effect on him, and answered, “If it did it had mighty little — it might have had a little.” Witness paid 25 cents a phial for it, and told appellant, when he bought it, that he was getting it for cooking purposes. Witness didn’t remember what the brand whs.

R. C. Temple testified that he was sheriff of Johnson County. He searched appellant’s store, and found a large amount of the extract. Witness couldn’t say how many bottles, but appellant had an unusually large amount of the extract. Part of his shelves were pretty well filled with the stuff. He had a tolerably large store building, and had quite a lot of extract on the shelves. Witness also searched the depot at Knoxville and found two boxes of extract shipped to appellant — found Jamaica ginger there. Witness arrested appellant, and he paid a fine for having that in his possession. He had the Jamaica ginger stored in his- cash safe. Witness found a pile of empty bottles at appellant’s house, two or three feet high and six or eight feet broad, containing one or two thousand bottles. Witness talked to appellant about the amount of alcohol there was in this extract: It wasn’t labeled. It was labeled, but it didn’t have any percentage label on it. There was nothing on the wrapper'or bottle to indicate the percentage of alcohol, and Jamaica ginger was labeled ninety-three per cent. Appellant said: “Well, I sell that all the time for medical purposes. There is all that extract there; it’s got alcohol in it, too.” Witness believed he said about 85 per cent. Witness brought home three or four bottles of the extract, but didn’t'have it examined or analyzed to determine the amount of alcohol. Witness found at appellant’s house a dozen or fifteen empty bottles that had contained Jamaica ginger. Most of them were two-ounce bottles. Most of the bottles he found at appellant’s house were Jamaica ginger bottles and possibly a few extract bottles.

The appellant testified, in his own behalf, that it was not his purpose at any time to sell any extract which contained alcohol. Witness told Sheriff Temple that he had not handled the extract for several years before the Ash-down case or the Supreme .Court’s decision in- this Jamaica ginger proposition. He had been selling it there for years, but hadn’t sold a bottle since that decision and for several months before, waiting for the decision, of the Supreme Court on the real issue in the case as to whether or not it was a violation of the law to sell it. Witness had not sold any extract containing alcohol, within his knowledge. The label didn’t show any, and the revenue department didn’t require that it be labeled. Witness denied that he sold any extract to Ward Love; said that he had never seen him before in his life.. Witness kept pretty well posted on the government regulations concerning the sale of these things, as he didn’t want to violate the law and go to the “pen.” The government didn’t require them to label the bottle any more, showing how much alcohol this extract contained. Witness didn’t know whether it had alcohol in it'or not.. It didn’t show any percentage, and all representatives were selling it all over Arkansas. Witness bought his extract by deals — two or three gross at a time; vanilla, lemon, and six or eight different kinds — all mixed up — some orange and some banana. Witness always doubled his shipments rather than ship them back; and the bottles the sheriff found at the depot may have been two gross. Witness never sold four or five bottles of the extract at a time. The extract cost $2.25 a dozen — about $25 or $30 a hundred. Before the decision of the Supreme Court witness had been selling “jake” about eighteen years, but hadn’t sold'a bottle since. Witness moved the old bottles down to his hou'se -simply to clean up. He never sold a bottle of Jamaica ginger, except for medical purposes, in his life. He would not have sold- extract to any one, if he had known it contained alcohol, under any circumstances. He had not sold any of it as a beverage or for the purpose of intoxication. Witness exhibited to the jury bottles of the Silver Moon extract. All the brands that he kept you can buy in Clarksville by the dozen. Vanilla is one of the leading brands appellant handles, but he didn’t bring a sample of that, because he was out of it.

The jury returned a verdict finding the appellant guilty, and fixing his punishment at one year in the penitentiary. Judgment of sentence was rendered on the verdict, from which is this appeal.

The court correctly declared the law. At least appellant urges no objection to any of the instructions of the court. He only contends here that there was no evidence to sustain the verdict. The credibility of the witnesses— the weight of the. evidence — was for the jury. Field v. Slate, 154 Ark. 191; West v. State, 154 Ark. 555; Cox v. State, 160 Ark. 283; Meeks.v. State, 161 Ark. 489.

We must give the. evidence its strongest probative force in favor of the verdict. Holmes v. State, 132 Ark. 135. Applying the law as announced by this court in Leslie v. State, 155 Ark. 530, to the facts of this record, the testimony as above set forth is sufficient to sustain the verdict. The judgment is therefore correct, and it is affirmed'.


author: Hart, J.

text:
    Shue v. Shue.
    Opinion delivered February 4, 1924.
    1. Divorce — conclusiveness op chancellor’s finding. — In an action for divorce, a finding of the chancellor that plaintiff had no legal grounds for deserting defendant, and that, on this account, her complaint should be dismissed for want of equity, and a divorce be granted to defendant on his cross-complaint for desertion, .held sustained by the evidence.
    2. Divorce — father’s duty to support children. — The fact that a husband was granted a divorce from his wife does not relieve him from the obligation to support his minor children.
    3. Divorce — allowance for support op children. — The chancery-court, in its discretion, may increase the allowance made in favor of minor children as they grow older and need more money for their support and education.
    Appeal from Woodruff' Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.

      Harry M. Woods and W. J. Dungan, for appellant.

      R. M. Hutchins, for appellee.
   Hart, J.

Lula Shue brought this suit in equity against her husband, Charley Shue, to obtain a divorce on the ground of cruel treatment and indignities which rendered her condition in life intolerable.

Her husband denied the allegations of her complaint, and filed a cross-complaint asking for a divorce from her on the ground of desertion.

The parties were married in Woodruff County, Arkansas, in February, 1907, and lived in that county as husband and wife until they separated in February, 1919. The present suit was commenced by the wife on the 28th day of September, 1921. Some eight years ago she brought a suit for divorce against her husband, but dismissed it. They have two girl children, aged, respectively, eleven and fourteen jmars.

According to the testimony of the wife and her witnesses, her husband cursed and abused her until her condition in life became intolerable, and then commanded her to leave him, which she did in about two weeks thereafter, which was as soon as she could obtain another home.

On the other hand, according to the testimony of the husband and his witnesses, he treated his wife kindly, and only upbraided her on the occasion in question, because she refused to turn off a cook of questionable character. He claimed that he was annoyed by his wife’s keeping in their hotel and restaurant women of lewd character.

The chancellor found that the allegations of the complaint as to cruel treatment were not sustained by the proof, and the complaint of the plaintiff was dismissed for want of equity. The chancellor further found that the allegations of the husband in the cross-complaint- for desertion were sustained by tlie proof, and he was awarded a decree of divorce. The two girls were placed in the custody of the mother, and the father was ordered to pay $7.50 per month toward the support of each of the children until the further orders of the court. The court retained jurisdiction of the cause to make any further orders that might become necessary. The plaintiff has duly prosecuted an appeal to this court.

On the whole case we are of the opinion that the decree of the chancellor cannot be said to be against the preponderance of the evidence, and it cannot therefore be disturbed upon appeal.

When the parties first married they lived on a farm of the husband, several miles from any town. Subsequently they moved to the town of McCrory, where the wife operated a restaurant and small grocery store. Later on there were rooms for lodgers in connection with, the restaurant. The parties seemed to have got along very well together until after they moved to town.

According to the testimony of the wife, her husbgnd often cursed and abused her, and on one occasion, after cursing her, grabbed her by the hair and hurt her until she had to scream for assistance. The town marshal came in and separated them. Her testimony in this respect is corroborated by the marshal, who testified that this occurrence was about a year and a half before their final separation.

The plaintiff admitted that, on the night her husband ordered her to leave, in'February, 1919, he became angry because she wuuld not turn off a cook. They went home from the restaurant separately that night, and slept in the same room, but in different beds. The wife did not leave for two weeks thereafter, because she could not secure a suitable home. She said that perhaps she would have continued to live with her husband after this if he had asked her to do so.

According to the evidence of the husband, he complained about the cook because she was of lewd character, and he did not want that kind of a person staying with them. He said that his wife was in the habit of having women of questionable character working in the restaurant, and that he frequently complained about that, but otherwise treated his wife well.

Other witnesses for the defendant testified that the plaintiff kept lewd women working for her in the restaurant and hotel, and permitted lewd people to room there. The witnesses testified that they had frequently seen women sitting in the laps of men in the hotel, and-had heard them cursing and using other bad language.

It seems to he pretty well established that both the husband and wife were accustomed to using profane language, and were of rather coarse temperament. We think that it is fairly inferable that the abuse and cursing done hv the husband was for the most part attributable to the fact that his wife kept women of questionable character as servants in the restaurant and lodging-house. The' last row that they had, which culminated in her leaving-home, resulted from his demand that she turn off a cook whom he considered to he a woman of lewd character. The fact that she stayed in the same room that night, and that she did not leave for two weeks thereafter, tends to show that her condition-in life had not become intolerable on account of the abuse and ill treatment of her husband: hut that she, on the other hand, bore his complaints and abuse about the character of her servants with equanimity. No useful purpose could be served by setting- out all of the testimony and reviewing it in this opinion. We deem it sufficient to say that we have considered carefully the evidence of the whole case, and do-not think that the chancellor erred in, finding that the plaintiff had no legal grounds for deserting- the clefend.ant, and that, on this account, her complaint should he dismissed for want of canity and a divorce granted to him upon his cross-complaint.

It is finally contended that the chancellor erred in directing the plaintiff to pay to the defendant the sum of $7.50 per month each for the support of the two children. This part of the decree is evidently a clerical misprision. The court intended to direct the defendant to pay to the plaintiff the sum of $7.50 per month toward the support of -each of the children. The decree might have been corrected in the court below, upon motion.

In this connection we deem it proper to say that the father is under a legal obligation to support and educate his minor children, and the granting ‘of a divorce to him from his wife does not relieve the father of his obligations to support them. The father must continue to furnish them a maintenance out of his estate, regard being-had to his means and condition in life. Holt v. Holt, 42. Ark. 495, and Gulley v. Gulley (Tex.), 1§ A. L. R. p. 564.

In a case-note to 15 A. L. R., at p. 569, it is said that the rule, supported by the weight of authority, is that a father is not released from his obligation to support or contribute to the support of his infant children by reason of the fact that the mother has been granted an absolute decree of divorce from him, and has been awarded the custody of the children by a decree making no provision for their maintenance. Many decisions from numerous courts of last resort in the United States are cited in support of the rule. The principle is the same, whether the divorce is granted to the husband or wife.

The father has made no complaint in this case that the custody of the children has been awarded to the mother, and, as they grow older and need more money for their support and education, the chancery court may, in its discretion, increase the allowance made in their favor.

The case at bar was very close upon the facts, and the cost of this apneal will, in the exercise of our discretion. be taxed against the husband.

It follows that the decree will be affirmed.


author: Hart, J.,

text:
    Grayling Lumber Company v. Tillar.
    Opinion delivered February 4, 1924.
    1. Taxation — invalidity of tax forfeiture. — As there was no legal assessment, advertisement or sale of land for the taxes of 1868, a forfeiture to the State for nonpayment of such taxes was void, and passed no title.
    2. Quieting title — validity of decree confirming tax title.— Under Crawford & Moses’ Dig., §§ 8862-8373, a decree of confirmation of title to land was void as to a person who has paid the taxes within seven years preceding the filing of the petition for confirmation, where such person was not in any way made a party to the confirmation proceedings.
    , 3. Judgment — direct attack. — A suit brought for the purpose of quieting title in one claiming the land and to cancel and set aside outstanding claims of title, was a direct attack upon a decree confirming the title of another.
    Appeal from Desha Chancery Court; E. G. Hammock, Chancellor;
    affirmed.
    STATEMENT OE EA.CTS.
    Appellees brought this suit in equity against appellants'to quiet their title to certain lands in Desha County, Arkansas.
    Appellants answered, setting up title in themselves and asking that the complaint of appellee he dismissed for want of equity, and, by way of cross-complaint, asked that the title to the lands he quieted in appellants as against appellee.
    The case was tried upon an agreed statement of facts. Appellees deraigned title from the United States. On August 3. 1858, the United States issued a patent to said lands to John D. Kimball. On March 21,1895, John D. Kimball and his wife conveyed said lands by deed to S. O. Roberson. On January 10, 1900, S. C. Roberson and wife conveyed said lands to Frank Tillar. On the 31st day of August, 1900, T. F. Tillar received a clerk’s tax-deed to said lands. T. F. Tillar and Frank Tillar was -the same person.
    Appellants deraigned title from the State of Arkansas. On the 10th day of September, 1894, the State of Arkansas conveyed said lands to the Red Fork Levee District. The Red Fork Levee District had the title to the lands confirmed in it by a decree of the chancery court, entered of record on November 7, 1901. The Red Fork Levee District then, by a deed, conveyed the lands either to appellants or to the grantors of appellants.
    It is also agreed that the lands were forfeited to the State at a sale in 1869 for the taxes of 1868. The lands were advertised to be sold on October 18, 1869, and were actually sold and forfeited to the State for -the nonpayment of taxes on October 28, 1869.
    Other parts "of the agreed statement of facts or reference to the assessment and sale of the lands will be referred to in the opinion.
    At the time the Red Fork Levee District was created, in 1893, the lands in .controversy were included within the boundaries of the district. From the year 1869 to 1894, inclusive, the record does not show the extension or collection of taxes against the lands. For the years 1895 and 1901, inclusive, the taxes were extended and paid by T. F. Tillar. From the year 1902 to the date of the agreed statement of facts, which was the 16th day of October, 1922, the taxes were paid both by appellants and appellees and those under whom they respectively hold title. Some years the appellees and other years the appellants first paid the taxes.
    The chancellor made a specific finding of law and fact in favor of appellees, and the title to said lands was quieted in them as against appellants, and all the tax deeds under which appellants claim title are canceled and held for naught.
    The case is here on appeal.

      E. E. Hopson, for appellant.
    The Legislature of 1893, by act 176, authorized the land1 in question to be conveyed to the levee district, confirmed title, and exempted the land from taxes for five years. An additional period of exemption for five years was authorized by the Legislature of 1899. Act of 1901 confirmed title in levee district and pointed out the procedure Tlie conveyance made by the State to the levee district was prima facie evidence of title. 82 Ark. 31; 89 Ark. 296; 98 Ark. 367; 87 Ark. 185. In view of the acts of 1893 and 1899 exempting the land from taxation, there conld have been no forfeiture during* the prescribed period, and the clerk’s deed to appellees could avail-nothing*. 128 Ark. 550; 159 Ark. 218. Appellees are bound by the confirmation decree of Nov. 7, 1901. 62 Ark. 421; 42 Ark. 330.

      Williamson S Williamson, for appellee.
    Appellees hold the original title which left the United States Government in 1858. Being* the true owners, possession has always been in appellees, and1 appellant has never had any kind of possession. 57 Ark. 523; 74 Ark. 383; 75 Ark. 194; 81 Ark. 258; 102 Ark. 59. The purported sale of the land to the State for taxes of 1868 was void. 50 Ark. 390; 54 Ark. 665; 74 Ark. 383; and the State had no title to convey. Therefore the act of 1893 did not apply to this land. Appellee’s tax title is valid, and the attempt to exempt this .land from taxation was ineffective. Upon securing* deed to this land the levee board recognized that no title was passed, and disclaimed title, and had taxes extended against the land for 1895, resulting in the sale under .which appellees hold. There is a legal presumption, at least, that this occurred'. 135 Ark. 353; 147 Ark. 247. Until there is an interference with possession, payment of taxes by another is not sufficient of itself to call for action. 70 Ark. 256. Lapse of time will not cure defects in an invalid tax title. 50 Ark. 390. The holder of a void tax deed, not in actual possession, has no such constructive possession as will cause the statute of limitation to run in Ms favor. 60 Ark. 163. Appellee had no notice of the adverse claim of arnoellant. 69 Ark. 95; 76 Ark. 525; 99 Ark. 446; 103 Ark. 425.
   Hart, J.,

(after stating the facts). As will be seen by reference to our statement of facts, the United States issued a patent to said lands to John D. Kimball on August 3, 1858. John D. Kimball and wife conveyed the lands by deed to S. C. Roberson, on March 21, 1895. S. C. Roberson and wife conveyed the lands by deed to Frank Tillar on January 10, 1900.

On the part of appellants it is claimed that the lands were forfeited to the State at a tax sale in 1869 for the nonpayment of the taxes of 1868.

Without going into a particular statement of the facts, it appears that there was no legal assessment, advertisement or sale of the lands for taxes for the year 1868. This court has frequently, held that the forfeiture to the State for the nonpayment of taxes for the year 1868 was void and passed no title.

The facts in similar cases are stated with more particularity, and the reasons for holding such tax sales void are given in detail in Parr v. Matthews, 50 Ark. 390, and Boehm v. Porter, 54 Ark. 665. To the same effect see St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383, and Herget v. McLeod, 102 Ark. 59.

The Red Fork Levee District was created by the Legislature of 1893, and the lands of the State within the boundaries of the district, except 16th section school lands, were granted to the levee district. It is not claimed, on this appeal, that the chancellor erred in holding that the forfeiture to the State at the tax sale in 1869 for the taxes for 1868 was illegal and void. The main reliance of appellants for a reversal of the decree is that the confirmation proceeding’s of the Red Fork Levee District gave them a valid title.

The confirmation proceedings were had pursuant to our statute regulating the procedure in confirming and quieting title to lands. Sections 8362-8373 inclusive. Section 8369, among other things, provides that the decree in the cause shall not bar or affect the rights of any person who, within seven years preceding, had paid the taxes on the lands, unless such person shall have been made a defendant in the petition and duly summoned to answer the same.

The decree in the confirmation proceedings brought by the Red Fork Levee District was entered of record on November 7, 1901. It does not appear, from the record in the case at bar, that appellees were in any way made parties to the confirmation proceedings. It does appear that Frank Tillar had paid the taxes on said lands for the years 1895 to 1901 inclusive, and that the taxes were extended on the taxbooks in his name as the owner for said years.

Therefore the decree of confirmation in favor of the Red Fork Levee District, as far as the appellees are concerned, was absolutely null and void. Quertermous v. Bilby, 144 Ark. 98. In that case it was held that one who had paid the taxes within seven years preceding the filing by another of a petition for confirmation, and who was not made a party thereto, is entitled to have a decree rendered therein vacated in a direct action therefor, without proving that a fraud was practiced by the petitioner.

The present suit was commenced by appellees against appellants, and the object and purpose of the suit was to quiet the title in the appellees and to cancel and get aside all the outstanding claims of title in favor of appellants. Hence the suit was brought for the purpose of vacating the decree of confirmation of title in favor of the levee district, and is a direct attack thereon.

If the decree in favor of the Red Fork Levee District is illegal and void as against appellees, it follows that the grantees of the Red Fork Levee District could acquire no greater rights than those possessed by the levee district. Hence the decree of the chancery court canceling the outstanding title of appellants was right.

It is equally certain that, if the forfeiture to the State in 1869 for the nonpayment of taxes for the year 1868 was void, the appellees have a perfect paper title to the lands, and the chancery court properly quieted their title thereto.

It follows that the decree of the chancery court must be affirmed.


author: Humphreys, J.

text:
    St. Louis-San Francisco Railway Company v. Vernon.
    Opinion delivered February 4, 1924.
    1. Evidence — res gestae — statement of employee. — In an action against a railway company for the death of a child struck by a train, statement by the locomotive engineer to the mother, some time after the injury, as to the cause thereof, was inadmissible as not being part of res gestae, and because the engineer was not authorized to bind the company.
    2. Railroads — failure to keep lookout — jury question. — In an action for the death of a child struck toy a train at a crossing, the question whether the railroad was negligent in failing tu keep a constant lookout, held, under the evidence, to be for the jury.
    3. Railroads' — duty of trainmen to keep lookout. — Under Crawford & Moses’ Dig., § 8568, some one of the trainmen is required to keep a constant lookout to discover persons or property on the highway approaching the track.
    4. Death — conscious suffering. — Evidence that an injured two-year-old child lived five days after the injury, took nourishment in liquid form, apparently recognizing her grandfather, had many convulsions, and on one occasion cried out, held to warrant the submission to the jury of the question whether she suffered conscious pain.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.

      W. F. Evans and Warner, Hardin & Warner, for appellant. ,
    1. The court erred in submitting to the jury the question of failure to maintain a lookout. Where there is no evidence tending to prove .a failure to maintain such lookout, it is reversible error to submit the question to the jury. 151 Ark. 34; 111 Ark. 134, 139. The testimony of the engineer and fireman Avas consistent and reasonable, and there Avas no evidence that either directly or inferentially contradicted them. 101 Ark. 532; 80 Ark. 39689 Ark. -574.
    2. The court erred in quoting literally the lookout statute, in instructing the jury, without explaining its application. 149 Ark. 270, 284. There Avas an issue here as to the interpretation to be'placed upon the statute, in the fact that, while it imposes, by its literal terms, ail absolute duty to keep a lookout, this court has held that such duty is limited to the exercise of ordinary care to maintain a careful lookout. 136 Ark. 246, 256. Instructions requested correctly limited, the duty of keeping a lookout in this respect, and amounted to a specific objection to the instruction given. 153 Ark. 454, 462.
    3. It is error to assume facts, in instructing a jury, the existence of which is not proved. 71 Ark. 518; 152 Ark. 90; 87 Ark. 471.
    4. It was error to submit, as an element of damage in this case, conscious pain and suffering on the part of the child, without proof of such suffering. 82 Ark. 499; 106 Ark. 177; 90 Ark. 278; 138 Ark. 175; 68 Ark. 1; 158 Ark. 271.
    5. If, as the undisputed evidence shows, the defendant was not negligent in failing to keep a constant lookout, it was not negligent, in failing to discover the child in a dangerous position near the track; and, if its presence could not and would not have been discovered in time to avert injuring it, by keeping a lookout, there can be no right of'recovery. 113 Ark. 353, 358; 129 Ark. 80.
    6. The didy with reference to keeping a lookout is not imposed on all members of a train crew, but may be discharged by a single person, if he is in a position to do so as effectively as any other member of the train crew, and the jury should have been so instructed. Ill Ark. 309, 313, cases cited; 82 Ark. 503; 96 Ark. 213; 131 Ark. 150/

      Nance £ Seamster, for appellee.
    1. Unlike Davis v. Scott, 151 Ark. 34, relied on by appellant, the accident in this case occurred at a public crossing, which raised a presumption of negligence against the defendant, and the burden of proof was on it to show by a preponderance of the evidence thát a constant lookout was kept. C. & M. Digest, § 8568; 74 Ark. 606; 107 Ark. 431. If the front brakeman was on his seat and looking ahead, the jury would have the right to infer from the fact that he did not see the child that he was not keeping a constant lookout. 136 Ark. 246, 256. Merely looking ahead.1 does not meet the requirements of the statute. It contemplates an efficient lookout 78 Ark. 251; 63 Ark. 184; 62 Ark. 186; 57 Ark. 194.
    ' 2. The court was warranted by the evidence in giving the instruction submitting the question of conscious pain. 142 Ark. 593; 151 Ark. 549.
   Humphreys, J.

As the judgment in this cause must be reversed and remanded for a new trial on account of admission of incompetent testimony, only such matters will be discussed in the opinion as may be necessary for the guidance of the parties and cdurt in a retrial of ’the case. The action was commenced in the circuit court of Washington County by appellee against appellant to recover damages in the sum of $2,999.99 to the estate and next of kin of the deceased, Helen Vernon, a child two years of age, for fatally injuring her, through the alleged negligence of the employees of appellant in failing to give the statutory signals as the train operated by them approached the wagon-road crossing, where the child was injured, and.by failing to keep a constant lookout required by § 8568 of Crawford & Moses’ Digest. The child was struck by a freight train coming from the north, and fatally injured, at a public road crossing about three miles south of Springdale. The parents of the child resided about one-eighth of a mile east of the road crossing. Without their knowledge or consent she wandered down the road to the place of the tragedy. After striking the child, the train was stopped, and the employees, except the fireman, who remained in the engine, went to the child. They removed her to a spring about seventy-five yards from the track, where the conductor washed her face. He called to a man who was passing, and was informed by him that the little girl was the daughter of the Vernons. He went to their home, and told Mrs. Vernon what had happened to her child.' Mrs. Vernon told her husband, and they went, with the conductor to the child. Mrs. Vernon testified',• over the objections and exceptions of appellant, that, when they reached the child, the engineer said to her, “Lady, I should have stopped on the other side, but I put on the brakes and they didn’t hold.” This testimony was not admissible.

The proper foundation was not laid in order to admit it for contradictory purposes.

The engineer’s employment did not carry with it authority to make declarations or admissions, subsequent to the injury, relative to the manner in which it happened, which would be binding upon the company. Ry. Co. v. Sweet, 57 Ark. 287; Stecher Cooperage Co. v. Steadman, 78 Ark. 381; Caldwell v. Niehol, 97 Ark. 420; River, R. & H. Const. Co. v. Goodwin, 105 Ark. 247.

The statement was a narrative of a past occurrence and not a part of the res gestae. St. Louis, I. M. & S. Ry. Co. v. Kelley, 61 Ark. 52; St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; Webb v. Kansas City So. R. Co., 137 Ark. 107.

Appellant also contends that the court erred in •submitting to the jury the question of its negligence for failure to keep a constant lookout. Its contention is based upon the claim that the undisputed evidence shows that a constant lookout was kept by some one of the employees of appellant as the train approached the public road crossing. We do not so interpret the evidence. D. C. Blakelee, the engineer, admitted that his view of the crossing' was cut off thirty- rods north of it, on account of the curve in the track. A. M. Bean, the fireman, testified that, after passing the Stockdale farm, which was about one-fourth of a mile north of the road crossing where the child was struck, he observed that the crossing was clear; that he then went to the decluof the engine to put in fire; that he left a brakeman in the seat, looking ahead; that in a minute or two the brakeman informed them that the engine had 'Struck a child. The brakeman was absent from court on account of sickness, and did not testify as to whether he kept a constant lookout, and, if so, why he did not discover the child before tbe train struck her., The jury may have inferred that lie had not kept a constant lookout, else he would have seen the child in time to have prevented the injury. Several witnesses testified that objects at or near the road crossing could have been seen from the fireman’s seat far enough back to have stopped the train before reaching it. Again, a number of witnesses contradicted the testimony of the employees to the effect that the whistle was blown for the crossing and the bell was ringing as the train' approached it; The jury may have concluded that the employees falsified about the signals, and, on that account, disbelieved their testimony relative to keeping a constant lookout. For these reasons it was proper to submit this question of negligence to the jury for determination. ApPellant insists, however, that the instructions submitting this issue imposed a higher duty upon the employees than the law required. In support of this contention, the case of Bushv. Brewer, 136 Ark. 246, is cited. Learned counsel for appellant interpret the language used in that opinion to mean that employees of a railroad need not keep a constant lookout to discover travelers on the highway approaching a train operated by them. Such a construction would have the effect of. abridging the lookout statute, which requires that a constant lookout be kept for travelers approaching the train at public road crossings. The exercise of ordinary care to discover travelers, as used in the Bush case, meant that some member of the crew operating a train, in position to do so, must keep a constant lookout to discover travelers or property on the highway approaching the train, whether upon the track or not.

Appellant also contends that it was entitled to a .....'-'tory instruction, under the claim that the undisputed evidence showed that it was impossible to discover the child in time to have prevented an injury had a constant lookout been kept. As before stated, testimony was introduced by appellee tending to show that objects could be seen at the crossing from the train, as it turned the curve, for a long distance. The testimony therefore was conflicting upon this point, which made a question for the jury.

Appellant also contends that, according to the undisputed testimony, the deceased suffered no conscious pain, and that the court erred in submitting to the jury, as an element of damage, any conscious pain suffered by her. Hypodermic injections were administered by the attending physician to quiet and ease the child. During her illness she smiled at and seemingly recognized her grandfather. He testified that, on one occasion, she cried out. During her illness she took nourishment in liquid form. She had many convulsions. Those who waited upon her said that when they changed her position it seemed to quiet and ease her. She lived five days after the injury. We think this evidence warranted the submission to the jury of whether she suffered conscious pain.

Objection is made to the use of language in several of the instructions given by the court, seemingly submitting an issue to the jury of whether the train ran over the child. The language was, perhaps, inapt, as the evidence tended to show that the child was struck by some part of the engine, and not run over by it. Statements of the law to the jury should relate to the facts. We deem it unnecessary to say more with reference to these objections, as inaccuracies of this nature will likely be corrected when the trial court’s attention is specifically called to them. For the error indicated the judgment is reversed, and the cause remanded for a new trial.


author: Humphreys,-J.

text:
    Globe & Rutgers Fire Insurance Company v. Chisenhall.
    Opinion delivered February 4, 1924.
    1. Insurance — policy on dwelling and barn — acceptance op check.- — ■'Where a fire insurance policy insured plaintiff’s dwelling for $2,000, and his barn for the same amount, it in effect constituted two policies, and, where both buildings were destroyed by fire, acceptance by insured of a check for $2,000 which recited that it was in full satisfaction of the loss by fire on a named date to property described in the policy, which was thereby canceled and surrendered, was a cancellation only of the portion of the policy covering the house.
    2. Appeal and error — objection not raised below. — Objection to the allowance of an attorney’s fee as being excessive in a suit on a fire insurance policy cannot he urged on appeal for the first time.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.

      Hughes & Hughes, for appellant.
    1. A policy of insurance may be canceled independent of its provisions, by mutual consent. 109 Ark. 27; 2 Clement on Fire Insurance, 409, and cases cited; 13 Lea (Tenn.) 340; 105 Fed. 286; 207 S. W. 922; 12 S. W. (Ark.) 155; 14 R. O. L. 1019, and cases cited. The court was in error in treating the writing in evidence as a mere receipt. By its terms it is a contract. 4 Wigmore on Evidence, § 2432; 96 Ark. 405; 102 Ark. 428; 115 Ark. 123.
    2. The amount allowed as attorneys’ fees is excessive. 158 Ark. 199.-

      Driver & Simpson, for appellee.
    1. The attempted cancellation of the policy sued on here was not in contemplation of the parties, nor intended by either appellant or appellee, in the adjustment and payment of the first loss. But appellant relies upon a rescission by mutual consent. There is here an absence of that “concurrence of wills” to unmake the contract, and that “mutual release” from the old contract necessary to constitute the consideration therefor, that is recognized as necessary by the authorities cited by appellant. 105 Fed. 286, 287; 12 S. W. 155; 207 S. ;W. 922. See also 88 Ark. 371; 72 Ark. 234; 21 Ark. 357; 112 Ark. 169; Id. 223.
    2. . If the check given in this case was more than a receipt, if it is a contract, it is without consideration and void. 31 Ark. 728; 121 Ark. 194.
    3. The policy sued on provided for cancellation upon five days’ notice. 2 Black oil Rescission and Cancellation, § 481; Id. § 483. An insurance company can exercise the right to cancel a policy only as therein provided. 76 Ark. 180; 108 Ark. 131.
   Humphreys,-J.

Appellee instituted this suit against appellant in the circuit court of Mississippi County, Osceola District, to recover $2,000 on an insurance policy issued by appellant to him, insuring his barn against loss by fire.

Appellant interposed the defense that the policy had been canceled by written contract before the barn was destroyed by fire.

The cause was submitted to a iury on the pleadings, testimony introduced by the parties and the instructions of the court, which resulted in a verdict and consequent judgment for the amount claimed, including interest of $70, a statutory penalty, and an attorney’s fee. ' An appeal has been duly prosecuted to this court from the judgment.

Appellant contends for a reversal of the judgment upon the alleged ground that the undisputed evidence shows an express cancellation of the policy sued upon.

The facts are that appellant issued a policy .to appellee, insuring his dwelling-house against loss by fire in F'e sum of $2,000, and his barn, on the same farm, against loss by fire in the same amount. The farm was under mortgage to the Deming Investment Company, and the policy contained a mortgage clause protecting it according to its interest. The policy remained in the possession of said mortgagee. It covered a period of three years, the premium thereon being $165, which was paid in advance by appellee. The’ dwelling-house burned on February 12,1921, and appellant paid appellee $2,000, the full amount of insurance carried upon it. The payment was made by check in the following form:

“$2,000.00 30486 No. 159832
“Globe & Rutgers Fire Insurance,Company.
“New York, Apr. 6-1921 192—
“Chemical National Bank.
‘ ‘Pay to the order of R. A. Chisenhall and Deming Investment Company, mortgagee, the sum of $2,000 and 00 cts. dollars, which payment, evidenced by proper indorsement hereof, constitutes full satisfaction of all claims and demands for loss and damage by fire which occurred on or about Feb. 12, 1921, to property described in policy No. 1537545, issued at the Osceola, Ark., agency, and said policy is hereby canceled and surrendered. Loss No. 108244. '
“J. H: Mulvehill, Secy. (Marsh) “W. H. Paulison, Vioe-Prest.”

The following indorsement appeared upon the check:

“In consideration of the sum hereby paid, all claims and demands whatsoever against the Globe & Rutgers Fire Insurance Company, connected with the within mentioned claim, for loss or damage, are released, compromised, settled and forever discharged.
“Amount of loss $2,000. Discount-Expense-
“Amount of check, $2,000. Indorse here. For deposit in 'Birmingham Trust & Savings Co.
“R. A. Chisenhall.
“Pay to the order of R. A. Chisenhall, without recourse. . ■
“The Deming Investment Co., per D. S. Waskey, mortgagee, vice-president.
' “Paid by the Chemical National Bank of New York, June 18, 1921. ’ ’

The amount collected was credited on the mortgage. The policy was not returned to appellant, nor did appellant refund the unearned premium thereon to appellee. In the month, of May, 1922, the barn was destroyed by fire, and payment- was refused, whereupon this suit was instituted.

Appellant contends for a reversal of the judgment upon the ground that it was released from further obligation on the policy by payment -of $2,000 when the house burned. .We do not so construe the check and indorsement thereon. The check recites that it was in “full satisfaction of all claims and demands for loss and damage by fire which occurred on, or about, February 12, 1921, to property described in policy No. 1537545, issued at Osceola, Ark., agency, and said policy is hereby canceled and surrendered.” The indorsement provided that the payment was in release, compromise and settlement of the loss or damage connected with the claim mentioned in the check. The claim mentioned in the check was for the destruction of the dwelling-house. The dwelling-house was the only building destroyed on February 12, 1921. The barn was not destroyed until May, 1922. The cancellation of the policy mentioned in the check necessarily related to that portion therein covering- the house. While the policy was written upon, one paper and bore one number, it covered two pieces of .property, insuring each in separate amounts against loss by fire. In effect, the policy constituted two contracts of insurance embraced in one paper. The cancellation and surrender of the one did not affect the other. Under this interpretation of the contract the check and indorsement thereon was not a cancellation and surrender of the policy on the barn. It was only a cancellation and surrender of the policy on the dwelling-house.

Appellant also insists that the amount allowed as attorney’s fee in the case is excessive. This question is raised here for the first time. No objection was made or exception saved to the allowance in the trial court. This should have been done, if appellant tliought the amount was unreasonable.

No error appearing-, the judgment is affirmed.