text:
    Farmers’ Bank & Trust Company v. Farmers’ State Bank of Brookport.
    Opinion delivered May 23, 1921.
    BANKS AND BANKING — FORGED CHECKS — LIABILITY.—Where plaintiff bank issued its cashier’s check to -a customer and mailed it to him, and it was presented to defendant bank by a third person of the same name who represented himself to be the payee, and forged the payee’s name, and received a part of the funds called for, leaving the rest on deposit, and defendant bank indorsed the check with a guaranty of prior indorsements, and transmitted it to plaintiff bank for payment, which was made, plaintiff bank, after discovery of the forgery, could recover from defendant bank the amount so paid.

      Appeal from Mississippi Circuit Court, Chickasawba District; R. II. Dudley, Judge;
    affirmed.

      Davis, Costen & Harrison, for appellant.
    The only question we desire to present is, Can a bank which pays a check drawn upon itself, the indorsement upon which is forged, recover the amount paid from the bank which originally cashed the check? The trial court rested its judgment upon the theory that defendant bank was negligent in not requiring the indorser to be identified. Under the agreed facts an attempt at identification would have been futile. Neely was a stranger in Blythe-ville, and there was no one to whom appellant could apply for identification.
    Appellant was not guilty of any negligence. The correct rule is laid down in 168 N. C. 605. A bank which pays a check upon itself, the signature of the drawer and indorser upon which are forged, can not recover the amount paid the bank which originally cashed the check, although it indorsed thereon, “All prior indorsements guaranteed.” L. B. A. 1915, p. 1138; 85 S. E. 5; 10 Yt. 141; 33 Am. Dec. 188. The rule of .North Carolina court is recognized in 73 Ark. 561-566. The court erred in refusing defendant’s declarations of law, Nos. 1, 2 and 3, and in finding for plaintiff, as defendant was not liable.

      W. D. Gravette, for appellee.
    Had appellee known and recognized the forgery, appellant would be in the same position it is now on account of the fact that the money had been paid to this forger at the time the check was presented and before appellee had time or opportunity to see or examine the forgery. All the harm had been done before the check came into possession of the appellee bank. Ap-pellee bank was not required, on account of the payee having once been a customer of said bank, to know whether the payee’s name was forged or genuine, in the face of the indorsement of appellant bank’s guaranty that all prior indorsements were guaranteed. 152 Ill. 296; 43 Am. St. Rep. 454. Plaintiff had a right to rely on the bank’s guaranty that all prior indorsements-were genuine. 88 Tenn. 299; 17 Am. St. Rep. 884. See, also, 159 Ky. 141; 166 S. W. 986; 137 Ark. 251. The findings and declarations of law were amply justified by the court below. Magee on Banks, etc., 352; Michie on Banks, 1090-3 and 1190; 151 Mass. 280; 5 Cal. 124; 98 Ark. 1.
   Wood, J.

This cause was submitted to the trial court sitting as a jury upon an agreed statement of facts, as follows:

On or about December 1,1919, J. W. Neely, a former citizen and resident of Brookport, Illinois, and a patron of the Farmers’ State Bank, the plaintiff herein, emigrated to Arkansas, and located near Blytheville, his correct postoffice address being Blytheville, Arkansas, R. F. D. No. 1. Before leaving Illinois, he had disposed of some property there, and on the 4th day of December, 1919, the plaintiff bank issued its cashier’s check payable to J. W. Neely for the sum of $540.85, which was put in the mail properly addressed to him at Blytheville, Arkansas, R. F. D. No. 1. The check never reached the person for whom it was intended, but was presented to defendant bank between the 4th and 13th of December, 1919, by a person, a negro, who represented himself to be J. W. Neely, and who indorsed the name “ J. W. Neely” upon said check, without the consent or authority of the person for whom said check was intended.

The person presenting said check received from the defendant bank the sum .of $140.85 in cash and left the balance of $400 on deposit in said bank to the credit of J. W. Neely. After receiving- said check as above, the defendant bank indorsed said check on the back as follows: “Pay to the order of any bank, banker or trust company, all prior indorsements guaranteed.

“Farmers’ Bank & Trust Company,
“Blytheville, Arkansas.
“H. E. Barnett, Cashier.”

Defendant bank then transmitted same to plaintiff bank for payment, which was made on December 13,1919. Upon learning that said check had not reached the hands for which it was intended, the' defendant bank paid over the $400 left on deposit to plaintiff bank, but refused to pay over the sum of $140.85, the amount paid upon presentation of said check, and this suit is by plaintiff bank to recover that sum.

It is further agreed that, upon receipt of information that the party for whom the said check was intended had never received same, plaintiff bank immediately wrote defendant bank, advising it that said indorsement was a forgery, but that said letter was not received by defendant bank, and that plaintiff bank had paid to the person who purchased said cashier’s check the amount represented thereby.

The finding and judgment of the court was in favor of the appellee, from which is this appeal.

Learned counsel for appellant rely upon the case of State Bank v. Cumberland Savings & Trust Company, 85 S. E. (N. C.) 5, L. R. A. 1915 D, p. 1138; Bank of St. Albans v. Farmers’ & Mechanics’ Bank, 10 Vt. 141; 33 Am. Dec. 188.

The first of the above cases is comparatively recent, the opinion having been rendered by the Supreme Court of North Carolina in 1915. The facts and the law announced as applicable thereto reported in the syllabus to that case in 85 S. E. 5, are as follows: “Plaintiff bank, which, in the course of business, received through another bank a check purporting to be drawn on it and indorsed by a third person, whose signatures were both forged, and which had been cashed by defendant bank, in reliance upon the indorsement ‘ ‘ all prior indorsements guaranteed” and the custom to take such checks relying upon the exercise of due diligence on the part of the bank first cashing it, could not recover the amount paid bn the forged check, as it should know the signature of the drawer, its own depositor.”

This doctrine has no application to the facts of this record. Here its cashier’s check made the appellee both the drawer and the drawee. In this case the drawee was not required to know the signatures of the indorsers. To apply the doctrine of State Bank v. Cumberland Savings & Trust Co., supra, to the facts of this record would be to ignore a wholesome principle of natural justice and equity which has also been thoroughly established as a rule of law, towit: That, as between two innocent parties to a transaction which must result in financial loss, the loss must fall upon that one whose acts contributed most to produce it. The principle is well expressed in the case of Danvers Bank v. Salem Bank, 151 Mass. 280, as follows: “Where a loss which must be borne by one of two parties alike innocent of the forgery can be traced to the neglect or fault of either, it is reasonable that it should be borne by him, even if innocent of any intentional fraud, through whose means it has succeeded. To entitle the holder to retain money obtained by a forgery, he should be able to maintain that the whole responsibility of determining the validity of the signature was placed upon the drawee, and that the vigilance of the drawee was not lessened, and that he was not lulled into a false security by any disregard of duty on his own part, or by the failure of any precautions which from his implied assertion in presenting the check as a sufficient voucher the drawee had a right to believe he had taken. # * * When this check was forwarded by the defendant for redemption, the plaintiff was without the means it would have had if it had been presented at its own counter of ascertaining the character of the person offering it. It had a right to believe that the defendant, in cashing a check purporting to be drawn by one not its own customer or entitled to draw upon it, had by the usual and proper investigation satisfied itself of its authenticity. The indorsement, which was not necessary to the transfer of the check, was a guaranty of the signature of the drawer, and the plaintiff had a right to believe that the indorser was known to the defendant by-proper inquiry.” See, also, People’s Bank v. Franklin Bank, 88 Tenn. 299; 17 Am. St. Rep. 84; Farmers’ National Bank of Augusta v. Farmers’ & Traders’ Bank of Maysville, 159 Ky. 141; Cureton v. Farmers’ State Bank. 147 Ark. 312.

The rule invoked by appellant is an exception to the rule that money which has been paid through a mistake can generally be recovered. This exception is mentioned by Judge Riddick, speaking for the court, in LaFayette v. Merchants’ Bank, 73 Ark. 561-66. This exceptional rule, however, as held in the case of Farmers’ National Bank of Augusta v. Farmers’ & Traders’ Bank of Maysville, supra, does not “require the drawee bank to know the signature of an indorser. That burden is upon the holder, who is bound to know that the previous indorse-ments, including that of the payee, are in the handwriting of the parties whose names appear upon the check, or were duly authorized by them.” In First National Bank v. Northwestern National Bank, 152 Ill. 296, it is held (quoting syllabus): “A bank indorsing and collecting a check warrants the genuineness of all pre-exist.-ing indorsements thereon, including the indorsements of the respective payees named in such check, and is answerable for moneys received by it if any such indorse-ments are forgeries.”

In the case of Schaap v. State National Bank of Texarkana, 137 Ark. 251, we said: “In other words, the true owner of a check, with a forged or unauthorized indorsement, may ratify the act of a bank in receiving it in that condition, and collecting the proceeds or paying them out without authority, and yet not ratify the forged or unauthorized indorsement. In such cases the bank can not avoid liability by showing that its conduct was governed by good faith, and the payee is entitled to recover .unless he has been guilty of fraud or negligence in the matter. ’ ’

The facts of this record show that the appellee was not guilty of any fraud; and if it could be said to be in the least negligent, its negligence in a measure was superinduced by the indorsement of the appellant, which was calculated to lull the appellee into a sense of security in reliance upon such indorsement and thereby lessen the diligence which it doubtless otherwise would have exercised. It follows that the rulings of the circuit court are in all things correct, and its judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Berger v. Jonesboro Motor Company.
    Opinion delivered May 23, 1921.
    1. Contracts — construction — question for court. — Where the terms oí a written contract are unambiguous in the light of the undisputed evidence, it is the duty of the court to construe it.
    2. Sales — CONSTRUCTION.—Where a contract for the purchase of an automobile provided that the car was sold f. o. b. at the city of purchase, the written contract stipulating that in case the car costs the seller $100 more the buyer will pay same, and there was an understanding between the buyer and seller that if there was an advance of $100 in the price the buyer was to pay it, the parties did not have in mind that there might be an increase in cost of the car on account of transportation charges.
    Appeal from Craighead Circuit Court, Jonesboro District; R. H. Dudley, Judge;
    reversed.

      Sloan & Sloan, for appellant.
    1. Tbe court should have instructed a verdict for appellant, and erred in submitting the case to a jury, as the facts are undisputed. It is clear beyond doubt that it was the intention of the parties to charge Berger the additional $100 only in the event that the manufacturer charged the Jonesboro Motor Company that amount by reason of an advance in price.
    2. There was error in the admission of evidence which was highly prejudicial to appellant. • -
    3. The court erred in refusing to give instruction No. 1 asked by appellant and in giving No. 2 of its own motion. The verdict is totally unsupported by any testimony showing the value of the car. 21 Ark. 488. 'While this case was replevin, yet the suit was in effect treated as a snit npon a contract to decide the contract price agreed to be paid for the car, instead of determining what was the actual value of the car,' the only issue.

      Lamb & Frierson, for appellee.
    This case was tried by both parties upon the sole question of whether Berger was to pay $1,750 or $1,650 for the car. An appellate court will not permit parties to repudiate the theory upon which a trial court proceeded and- insist upon a different theory upon appeal. The theory can not be changed on appeal. 101 Ark. 95; 108 Id. 490; 77 Id. 177; 64 Id. 253; lb. 305; 121 Id. 124; 83 Id. 10; 95 Id. 593; 71 Id. 242; 74 Id. 88, 557; 78 Ark. 1; 106 Id. 525. Appellant chose his own ground in the trial below, and it is too late now for him to contend that the trial was not carried out strictly and technically as a re-plevin suit. All the pleadings, evidence and argument were directed to the one controversy, the price of the car, was it $1,750 or $1,650? A shift of position like the one claimed can not he allowed on appeal. Verdicts which are responsive to the issue will he sustained, although not strictly in statutory form. 103 Ark. 422; 123 Id. 261. See, also, 96 Ark. 190; 32 Id. 612; 68 Id. 580; 50 Id. 506, 94 Id. 548; 2 Bibb 178; 4 Dana 271; 1 Tex. 93; 22 Enc. PI. & Pr. 877.
    The verdict is sufficiently certain. 3 W. Va. 37; 9 W. Va. 184; 47 Pa. St. 376; 105 Mo. 411; 112 N. Y. 364; 15 Cyc. 106. Where the only issue is the amount due, an assessment of the value of the property is not necessary. Cohbey on Replevin (2 ed.), § 1065, p. 601. Appellant on appeal can not raise the issue as to the value of the car, nor as to the form of the verdict. The contract is unambiguous. 143 Ark. 143. Written contracts by letter are sustained if not ambiguous. 81 Ark. 337. The construction of such contracts is for the courts. 81 Ark. 337; 89 Id. 368. When a verdict is instructed by the court, this court will give to the evidence its strongest probative force to the opposing side. 103 Ark. 231; 76 Id. 520. Berger admittedly never complied with his contract. Considering this then as strictly a replevin suit, appellee is entitled to recover the car. Berger never made a sufficient tender of compliance with his contract. He is in default if the price were' $1,650. Appellant willingly submitted the construction of the contract to the jury, and can not complain here for the first time. Cobbey on Replevin (2 ed.), § 1083.
   Wood, J.

This suit was instituted by the appellee against the appellant to recover the possession of a certain automobile which is described in the complaint and affidavit for replevin. The appellee alleged that it was the owner and entitled to the immediate possession of the automobile. The complaint and the affidavit contained the usual allegations in replevin. The appellant answered, denying all the material allegations of the complaint, and set up that he purchased the car of the ap-pellee for the sum of $1,650; that he made tender of payment as contemplated by the contract, and that the ap-pellee demanded of appellant $100 in excess of the contract price; that it was the understanding that, if the Buick Automobile Company raised the factory price of the car in controversy $100 before the same could be delivered to the appellant, then the appellant was to pay this .additional sum, but the appellant alleged that the ap-pellee procured the car from the factory at the market 'price existing on the day of appellant’s purchase.

J. R. Lane testified that he was the manager of the appellee on March 29, 1920. He exhibited the contract between appellant and the appellee under which the car was purchased, which contained, among .others, the following provision: “In case this car costs the Jonesboro Motor Company $100more, J. M. Berger will pay same.” "Witness testified: “We signed up this contract, and I told him that it would cost more money; that the factory would raise the price the first of April, and he said that would be all right, and he signed up the contract like I wrote it. He saw me write this (the above provision) in the contract.” Witness further testified substantially that the above provision meant in case the car cost ap-pellee $100 more to get the ear to Joneboro, which witness said it did, as follows: He and three others went to Flint, Michigan, and drove the cars from there to Lima, Ohio, a distance of two hundred miles, and witness paid the expenses, which made it cost appellee more than $100 to get the car to Jonesboro. Witness had in mind in entering into the contract two prices — the delivered price and the cost to witness. The delivered price was the price to the man who bought. The cost provision in the contract meant that the delivered price would have been less than $1,700. The testimony of witness showed that the appellant had complied with the contract except that appellant was only willing to pay $1,650 for the car at Jonesboro, whereas the appellee was unwilling to accept less than $1,750.

Another witness testified that he heard the discussion between Lane and the appellant at the time of the execution of the contract regarding the $100, and that the agreement between them was that, if the car cost the appellee $100 more than the factory price, appellant was to pay that additional amount.

The appellant testified in substance that the provision in the contract above quoted meant the advanced price of the car, and the price was supposed to advance about April 1. Lane told appellant that there would be an advance at that time. He said he had several cars bought at the old price, and, if this car cost him more money, appellant would have to pay it. There was nothing said at the time the deal was made about some fellows being- sent up to Flint to drive the car back. Witness told Lane that he did not want his car driven at all. Witness wanted the car shipped from the factory to Jonesboro. When the car arrived, Lane did not say a word with reference to the increase in the factory price. When witness went to settle with Lane, Lane said witness would have to pay him $100 more. Witness asked Lane if it cost him more, and he said, “No;” that he got it at the old price, but it cost him $100 more on the car to get it to Jonesboro, and he was charging appellant that much more. Witness told Lane that such was not the contract. Witness bought the car f. o. b. Jonesboro.

The above are substantially the facts upon which the appellant asked the court to instruct the jury to return a verdict in his favor, which the court refused. The court, instead, instructed the jury in effect that, if the provision in the contract was intended by the parties to cover either an advance in the cost of the car or expense incurred by the appellee in procuring and delivering the car, they should return a verdict in favor of the appellee and fix the value of the car at $1,750. On the other hand, if the parties intended the above provision to cover only the advance, if any, in the price of the car, then the jury would fix the value of the car at $1,650. The jury returned a verdict in favor of the appellee, fixing the value of the car at $1,750, and judgment was rendered in favor of appellee, from which is this appeal.

The court erred in refusing to instruct the jury to return a verdict in favor of the appellant. The undisputed evidence showed that the price of the automobile was f. o. b. Jonesboro; that it was the custom of automobile factories to quote the price of their automobiles f. o. b. city of purchase. The testimony of Lane, the manager of the appellee at Jonesboro, as well as the testimony of the appellant, shows that when this contract was entered into the parties had in mind that there would be an advance in the factory price of cars about the first of April. This was clearly the meaning of Lane’s language when he said, “I told him that it would cost more money — that the factory would raise the price the first of April.” Berger also said, “Russell told me there would be an advance in the price of the car the first of April. He said he had several cars bought at the old price, and, if this car cost him more money, I would have to pay it. ’ ’

When the provision of the contract quoted is construed in the light of this undisputed evidence of the intention of the parties, it is absolutely unambiguous, and the court erred in submitting it to the jury for construction, but should have construed it to mean that the appellant was to pay an additional $100 to the contract price of $1,650, in case the factory advanced the price to the appellee; that is, in the event appellee had to pay the factory $100 more, then the appellant should pay the advanced price to the extent of $100. The price of the car was fixed f. o. b. Jonesboro, and showed that the parties did not have in mind at the time the contract was entered into that there might be any increase in the cost of the car to appellee on account of transportation charges. The provision under review was clearly intended to cover the advance price of $100, which the parties contemplated at the time the appellee, might have to pay the factory. It was not intended to cover any additional cost or expense that appellee might have to incur in order to deliver the car f. o. b. Jonesboro.

“Where the terms of a written contract are unambiguous in the light of the undisputed evidence, it is the duty of the court to construe it.” Capitol Food Co. v. Mode & Clayton, 112 Ark. 165; Starnes v. Boyle, 101 Ark. 469, and other cases cited in 2 Crawford’s Digest, Contracts, § 81. '

Now, the undisputed evidence shows that the factory price of the car in controversy at the time of its purchase was $1,595 with war tax added. The factory did not advance the price, and the undisputed evidence shows that the appellee did not have to pay $100 more on account of the advance in factory price to it. On the contrary, Lane testified that the car cost him $1,650, counting in his profit. He added the $100 because it cost him more than that to get it to Jonesboro. For the error in refusing to give the appellant’s instruction No. 1, the judgment is reversed and the cause is dismissed.


text:
    G. H. Hammond Company v. Joseph Mercantile Company.
    Opinion delivered May 23, 1921.
    PRINCIPAL AND AGENT — APPARENT AUTHORITY OF AGENT. — To the general rule that no man can get a title to personal property from a person who himself has no title to it, there is an exception where the owner has conferred upon the seller the apparent right of property as owner or for disposal as his agent.
    Appeal from Greene Circuit Court, First Division; R. E. Dudley, Judge;
    affirmed.

      D. G. Beauchamp, for appellant.
    1. The giving of instruction 6 was prejudicial error. It was abstract and not based upon any evidence. There is no evidence that Perkins sold the meat to defendant company in accordance with any custom of the trade and usual course of business conducted by Perkins or others engaged in that line of business at Paragould and shown to plaintiff company.
    The instruction is erroneous in that it ignores the powers and limitations placed upon Perkins by the plaintiff company under the contract.
    2. Appellee was estopped. Under the contract Perkins could not pass a good title to defendant. 97 Ark. 43-9; 33 Id. 465; 48 Id. 426; 82 Id. 367. Any statements made by Perkins to defendant company, or any acts of Perkins with defendant company concerning his dealing could not bind appellant. All such statements and acts were res inter alios actae as to appellant. 97 Ark. 43-49.
    3. Instruction No. 6 is indefinite and uncertain. Taking the entire record and all the evidence in the case, there is no theory upon which can be based an instruction that would authorize the jury to find for the defendant and a verdict should have been instructed for plaintiff. 222 S. W. 27-8. The former appeal settles the law of this case, and it was error to give instruction No. 6.
    4. On the question of estoppel, see 36 Ark. 96; 80' Id. 404; 82 Id. 367; 97 Id. 43; 89 Id. 394; Ann. Oas. 1914 B 984.

      5. On question of innocent purchaser, see 42 Ark. 373; 47 Id. 363; 48 Id. 160 ; 49 Id. 63; 54 Id. 305; 44 Id. 210; 7 Pa. Co. Ct. 637; 32 Ill. 411; 167 Ala. 109; 3 Am. Dec. 740; 80 N. 0. 275; 56 Minn. 244; 53 W. Va, 415.

      Ihoddleston, Fuhr & Futrell, for appellee.
    The question is not, “What was the authority actually given to Perkins'?” hut is, “‘What was the party dealing with Perkins justified in believing?” The authority of the agent must depend, so far as it involves the rights of innocent third persons who have relied thereon, upon the character bestowed rather than the instructions given. The principal is bound to third persons, acting in ignorance of any limitations, by the apparent authority given and not by the express authority. 5 Atl. 504; 75 Ill. 426; 56 Id. 23; 79 Mich. 516; 44 N.‘w. 942. Whatever attributes properly belong to the character bestowed will be presumed to exist, :and they can not be cut off by private instructions of which those who deal with the agent are ignorant. Among those attributes is the power to do all that is usual and necessary to accomplish the object for which the agency was created. 54 N. W. 50.
    Parties dealing with an agent have a right to presume that his agency is general and not limited. 33 Me. 169; 78 Id. 160; 3 Atl. Rep. 185. The presumption is that one known to be an agent is acting within the limits or scope of his authority. 79 Mich. 516; 44 N. W. 942.
    The customs and usages of business are silently adopted in to the contract. Story on ¡Bailments, § 384. One who is engaged in a trade or business is bound to know its usages at the place where he acts and is presumed to have contracted with reference to them. 13 Wall. 363; 49 N. Y. 464; 21 N. E. 160; 46 N. Y. 325.
    The plea of the contract means the place of its making unless its terms indicate another place of performance. 78 N. W. 562.
    No negligence can be charged to appellee, and where, as between two innocent parties, the title of the one or the other must be lost the misfortune must rest upon the one who designedly or by negligence has placed some third person in such apparent control of the title as to enable him to perpetrate a fraud upon the other, if that other be deprived of the title. 42 Ark. 473. See, also, 20 Wend. 278; 128 Ark. 600; 137 Id. 475; 48 Id. 147; 46 Id. 210; Story on Agency (8 ed.), § 127; 96 IT. S. 84. There was no error in sending the case to the jury, and the verdict is amply supported by the evidence.
   Wood, J.

The appellant, a corporation of the State of Michigan and doing business in Arkansas, entered into a contract with one Ray Perkins of Paragould, Arkansas, the material parts of which are as follows:

The appellant appointed Perkins its broker for the sale of certain of its products in Paragould, Arkansas. The appellant was to pay Perkins a commission for his services. Perkins was to keep an account of goods consigned to him by the appellant in books furnished by the latter, which were subject to recall and inspection by the appellant at all times. Perkins was to make weekly reports of the stock on hand and delivery .of goods on blanks furnished by appellant. Perkins was to sell the goods on behalf of appellant and on terms prescribed by the appellant. Perkins was to bill no goods from consigned stock to himself under any circumstances. Perkins was to bill all goods on blanks furnished by the appellant and to forward a duplicate thereof to appellant on the day the goods were delivered. He was to keep the receipts for goods delivered on file subject to the order of the appellant. He was not to handle on consignment any packing house products except appellant’s with appellant’s consent. Perkins was to account to appellant for all weights shipped. He was to keep all goods in a suitable building and not mingle them with other merchandise and to sell and handle the same without expense to the appellant except his commission.

This action was brought by the appellant against the appellee to recover the sum of $308.10.- The appellant alleged that the appellee had taken possession of 1?165 pounds of bacon extras which belonged to the appellant, and that appellee had converted the same to its own use without authority of appellant. This is the second appeal in this case. The complaint remained the same on both trials. On the first trial, the answer to the complaint set up that Perkins was in the employ of the appellant as a factor and in possession of its products with full power'and authority to sell, deliver, and collect for appellant’s products, either in his own name or in the name of appellant; that appellee purchased the meat in controversy from Perkins as his individual property; that he represented to the appellee that it was his property, being the accumulation of what was known as ‘ ‘ overs, ’ ’ and was billed out to the appellee as the individual property of Perkins and paid for by the appellee as such; that the appellee in purchasing the meat from Perkins followed the custom and course of trade which had prevailed at Paragould for many years and was well known to the appellant; that the appellee believed that the meat was the individual property of Perkins and had no knowledge to the contrary.

The issue as thus raised on the first trial was sent to the jury, and in one of its instructions the court declared as follows: “If the plaintiff authorized and knowingly permitted its factor, Perkins, to sell overs or any other of its goods, or his own goods, on his individual account as individual owner to customers, * * * and the defendant at the time believed Perkins to be the true owner, or authorized to sell in his own name, then you will find for the defendant.” In passing on this instruction, this court explained the difference between factor and broker as follows: “A factor may buy and sell in his own náme, and he has the goods in his possession, while a broker as such can not ordinarily buy or sell in his own name and has no possession of the goods sold.”

In passing on the facts as developed at the former trial, we said: “Perkins was not a factor Qr commission merchant and had no right to sell the products of the plaintiff in Ms own name. Therefore, the conrt erred in assuming to the jury that Perkins was a factor and in telling the jury to find for the defendant if it should further find that the plaintiff authorized or knowingly permitted its factor, Perkins, to sell overs or any of its goods, or his own goods, on his individual account. ’ ’ For the error in giving the above instruction the court reversed the judgment and remanded the cause for a new trial.

On the second trial the appellee filed an amended answer in which it alleged that Perkins was an independ-ant dealer in meat products in Paragould, Arkansas, and was conducting his individual business in connection with that of the plaintiff; that he combined his own and the plaintiff’s business in this way to such an extent that his customers could not tell whether they were dealing with Mm individually or as the agent of the plaintiff; that the plaintiff knew, or should by the exercise of reasonable prudence and care have known, that Perkins was conducting his own individual business in conjunction with the plaintiff’s business; that the defendant, acting in good faith and ignorant of plaintiff’s alleged interest in said meat, purchased the same according to the custom of trade and paid Perkins for the same, honestly and in good faith believing Perkins to be the true owner thereof, and that plaintiff company is, therefore, estopped from now claiming payment from the defendant.

On the issue thus joined at the last trial, the president of the appellee testified substantially as follows: He had been in business at Paragould, Arkansas, for about fifteen years. The day appellee purchased the meat, Perkins came in and said he had some meat that he would sell to the appellee a quarter of a cent under the market price. Witness purchased it of him and paid for it. He had traded with Perkins and his father for fifteen years and had bought meat from them quite a number of times as their individual property. No question ever came up before, and nothing had happened to arouse his suspicion that the meat was not Perkins’. Witness knew that Perkins was the broker of the appellant to sell its meat products, and that he liad no right to sell appellant’s goods as his own individual goods, but he did not sell the meat in controversy as the goods of appellant. Witness did not know anything about the contract between Perkins and the appellant. Witness knew that nobody had a right to sell goods belonging to some one else without authority. Witness didn’t know that this meat was the property of appellant. Perkins might have bought it from some one else so far as he knew. He supposed that the goods were shipped by the appellant to Perkins. Appellant had done nothing at any time or said anything that would lead witness to believe that the goods were purchased. He trusted Perkins’ word that the goods were his. The products that the appellee bought from Perkins were paid for for sometimes in cash and sometimes by check. The checks were made payable sometimes to Perkins and sometimes -to the appellant. Witness never heard any kick on this. Witness bought the goods from Perkins and not from the Hammond Company. When he bought goods from Perkins that were billed by the Hammond Company, he paid the Hammond Company for them. The only time he gave Perkins checks in his own name was when he owned the stuff himself. Witness didn’t know whether the appellant had any knowledge or information of the individual transactions he had with Perkins or not.

The secretary of the appellee testified that he had been in charge of the office and book affairs of the appel-lee for about twenty years. During this time appellee had been doing business with Ray Perkins and his father. Witness knew nothing about the contract' between appellant and Perkins — made no inquiry about it. Witness knew that the appellee bought the meat in question from Ray Perkins individually and paid for it. Witness had nothing to put him on inquiry that the meat did not belong to Perkins. He would not have bought it if he had known it was Hammond’s. Witness knew that Perkins had no right to sell Hammond Company meat as his own and in his own name. The accounts that the ap-pellee paid Perkins in his own name were for goods that Perkins claimed were his own and sold as his own. Witness didn’t remember how many companies Perkins might have represented. No question ever came up about the purchase of meat. He did not know whether under the contract Perkins had the right to sell the meat in his own name — never saw the contract. Perkins said he was selling his own meat.

Other witnesses testified substantially to the effect that they had bought packing house products from Perkins for several years. One witness stated that he had bought meat from Perkins in the name .of the Hammond Company. Sometimes Perkins would bill it out to witness in his individual name in average amounts from $75 to $700. Witness had transactions directly with the Hammond Company. They would often send him a statement for comparison. Perkins always protected witness against all advances. Witness would make remittances to Perkins. All checks for individual purchases would be made direct to him.

Another witness stated that he had bought quite a large quantity from Perkins — had had transactions for the Bertig Brothers with Perkins in which Perkins sold Bertig Brothers meat as his individual property. It did not occur often, and no question was raised about it.

Another witness testified that for thirteen years he had bought stuff from Perkins. He would mail checks to both Perkins and the appellant. No question was ever raised. Toward the latter part of his business witness thought Perkins was selling meat on a commission, but never gave it any thought. Witness had bought meat from Perkins as his own product and would usually pay Perkins individually when he purchased it from him that way, and there was never any complaint on the part of the appellant. Witness did not know whether they ever knew about it or not.

Another witness stated that for fifteen years he had bought meat from Perkins. He did not know whether he traded with them as individuals or as the agents of the Hammond Company. He would buy stuff from them, and they would send around and collect for it, and he would make the checks payable to Perkins. "Witness “thought Ray Perkins was the whole cheese — didn’t know any difference.”

Ray Perkins testified for the appellee to the effect that he dealt in meats and lards on his own account; that he sold in his own name to a large extent to appellee and other merchants who handled the goods sold by him. These merchants were his customers in buying his individual goods and also the Hammond goods. He would sell them Hammond goods as Hammond’s agent and sometimes as his individual goods and collect for them individually. Customers paid sometimes in checks to the Hammond Company and sometimes to witness individually. Witness would get the money and account to the Hammond Company for their part of it and keep his part. There was never any objection by the appellant to this method of conducting the business. Question never arose. Goods billed out to purchasers along the railroad would be billed in the Hammond Company name when that company sold the goods. If Perkins sold the goods, it would be billed out in Perkins’ name. Perkins transacted considerable business with the defendant company ; sold them goods as his individual property. Witness never had any understanding with the Hammond Company about overs — no written contract. He was in Chicago' talking, to the head of the concern, and the subject of shrinkage came up, and the manager told witness that he would be satisfied to receive the weights they shipped Perkins, and in any case where it would happen to be one-hálf of one per cent, less than they shipped Perkins it would be all right, and he said, “If anything else occurs, you know how to take care of it, I guess.” Witness assumed that he meant if the meat ran over witness was supposed to take it, and lie did. Witness would accumulate stock of Ms own in this way with ‘ ‘ overs. ’ ’ When witness considered the market right, he would instruct his employee to weigh up one or two thousand pounds of meat and put it over on witness’ side .of the warehouse and go to Ms book and charge it to Bertig Brothers at the best market price on that day and pay the money on that invoice and remit it to Chicago, and report the sale as having been made to Bertig Brothers. Witness transacted the business in that way because appellant company would not allow witness to hill anytMng to himself. The bills that were billed in that way were never presented to Bertig Brothers — were not intended to be. Witness paid the company the market price for the stuff he got.

On cross-examination witness stated, among other things, that the contract under which he-was employed by the appellant reflected his authority, and the same had not been changed. Only the manager of plaintiff said “occasionally there are ‘overs,’ and if there are ‘overs’ you know what to do with them,” and witness took it for granted that witness might appropriate the “overs” to his own use. The meat that was sold to the defendant belonged to the Hammond Company. The defendant wanted bacon extras. Witness didn’t have it, but did have dry salt extras, and he told his employee to take the dry salt extras out of his pile and take and put them in place of the bacon extras and take the bacon extras and deliver them to the defendant company; that was the only claim witness had to the meat sold the defendant. The Hammond Company was never advised about the transaction and was never paid for it. The meat was delivered to the defendant in the original packages as received from the Hammond Company. Witness was a merchandise broker and a manufacturer’s agent. He handled meat and lard for the appellant and also bought from the Hammond Company and sold it on his own hook. Witness also handled oil and gasoline and sold it as the agent of the company who owned it. Witness had no authority to buy from the Hammond Company in his own name. Appellant had no information, so far as witness knew, that witness was handling appellant’s goods in his own name, or that he was handling the goods of any one else in his own name. When appellant’s auditors would come to check up witness, whatever witness owned himself he would put out to one side of the house out of the way and take some lard and pack it around in various places, and hauled some to the oil house so that appellant’s auditor couldn’t discover it.

Another witness, an agent in the employ of Perkins since July 6, 1906, testified that any time the auditor came to audit the books and discovered any extra stock he would be told that that was sold and didn’t belong to the stock. After the contract between Perkins and the appellant was executed on July 10, 1917, up to May 7, 1918, if Perldns was engaged in any .other business of any kind except representing the plaintiff and an oil company, it was so slight that witness could not remember it. Witness sometimes made collections for Perkins including oil and other things. If the company had any knowledge of.any of the transactions, witness didn’t know it. These transactions detailed by the witness did not appear on the record. The witness further testified, “Mr. Taylor told us to sell one kind of meat and bill it out as another kind. It would be sold as the company’s meat. ’ ’

Witness Taylor testified that he had been working for the appellant company for about fifteen years. He visited Paragould at irregular intervals of about six weeks; had appellant’s business at Paragould under his immediate control as inspector. He did not discover that Perkins was buying goods on his own account or selling them. During all the time he never found any meat or products in Perkins ’ house that Perkins claimed as his own. He had no information that Perkins was selling appellant’s goods in appellant’s name and collecting for them in his own name. He had no information that Perkins was billing ont goods and not delivering them. The company had no information of any of these things-, so far as witness knew. Witness was familiar with Perkins’ books, and in examining’the books and the business nothing ever occurred, nor did witness ever discover anything, irregular. Witness never made a complete audit of Perkins’ books. If there were any discrepancies, he checked them up.

The court gave instructions correctly defining the issues and interpreting the contract between the appellant and Perkins, and told the jury, among other things, that the undisputed evidence showed that the title to the meat in question was in the appellant and that the possession and sale of it by Perkins as his own would not give the appellee good title to it. The court also told the jury that if the appellee knew that Perkins was the agent or broker of the appellant when it bought the meat from him he was acting as such in the sale of the meat, they should find for the appellant. The court further instructed the jury as follows:

“But, if you find from the evidence in the case that the plaintiff by its manner and course of conduct and dealings with its agent, Perkins, and through him with the public; and plaintiff by its own voluntary acts or consent gave to, or knowingly permitted, said Perkins to sell its goods as his own; and, if you further find from the evidence that the said Perkins sold the meat in question to the defendant company in accordance with the custom of the trade and usual course of business as con-' ducted by Perkins, or others engaged in that line of business at Paragould, and known to plaintiff company; and if you further find from the evidence that the defendant company, acting in good faith, and in ignorance of the fact that plaintiff owned the meat, and in the exercise of such care as an ordinarily prudent person would use under like circumstances, bought the meat in question, believing it to be the property of said Perkins, then you will find for tlie defendant; bnt, unless you do so find, then you will find for the plaintiff.”

The appellant duly excepted to the' ruling of the court in giving instruction No. 6. The verdict and judgment were in favor of the appellee. The appellant seeks to reverse the judgment, and concedes that the only question is as to whether or not the court erred in giving instruction No. 6.

On the first trial the issue was submitted on the theory that the undisputed evidence showed that Perkins was the factor of the appellant. This court held on the former trial that the trial court erred in instructing the jury that Perkins was the factor of the appellant. On the last trial, as shown by the present record, the court avoided that error, and the cause was submitted upon the theory that, although Perkins was the broker or agent of the appellant for the purpose of selling its meat products at Paragould, yet, if the appellant by its conduct knowingly permitted Perkins to sell its goods claiming them as his own in pursuance of a custom or course of dealing which he had established at Paragould of which appellant had knowledge, and the appellee, in good faith and in the exercise of ordinary care, purchased the meat front Perkins believeing it to be his property, the verdict should be in favor of the appellee.

The testimony speaks for itself, and we are convinced that it is sufficient to have warranted the court in presenting the causé to the jury upon the theory which the court did in its instruction No. 6. The testimony is voluminous, and it could serve no useful purpose to discuss it in detail. After a careful consideration of it, we have reached the conclusion that it can not be said as a matter of law that there was no testimony to warrant the instruction and to justify the verdict. The case on the facts as developed at the last trial is ruled by the principle announced by this court in Rogers v. Scott, 128 Ark. 600-603, as follows: “The general rule is that no man can get a title to personal property from a person who himself has no title to it. There are, however, certain exceptions to the general rule. One of these exceptions is that a bona fide purchaser will be protected where the owner has conferred upon the seller the apparent right of property as owner, or for disposal as his agent.” See, also, Andrews v. Cox, 42 Ark. 473-78; Meyer, Bannerman & Co. v. Stone & Co., 46 Ark. 210-214; Jetton v. Tobey, 62 Ark. 84; Jarvis v. Pague, 137 Ark. 475-484.

The instruction of the court was in conformity with the doctrine announced in the above cases, and there was testimony to warrant the court in giving it.

The judgment is therefore affirmed.


author: Smith, J.

text:
    Meyer v. Board of Improvement of Paving District No. 3.
    Opinion delivered May 23, 1921.
    1. Municipal corporations — attack on improvement ordinances— limitation. — After expiration of the 30-day period for attacking improvement ordinances, provided by Crawford & Moses.’ Big., § 5668, third persons who are not parties to actions previously instituted for the purpose of attacking an assessment can not become party plaintiffs by adopting the pleadings of the original plaintiffs.
    2. Municipal corporations — estoppel to attack validity of improvement ordinances. — Persons who signed a petition for creation of a municipal improvement district are not, by signing such petition, estopped to question the validity of the ordinances creating the district or fixing an assessment on the ground that the law was not followed, since the petitions conferred no authority beyond the statute.
    3. Municipal corporations — estoppel of property owners.— Where property owners know that the commissioners of an improvement district are exceeding their authority, they may by some affirmative act estop themselves thereafter from questioning the legality of the commissioners’ action.
    4. Municipal corporation. — boundaries of improvement district. —The boundaries of an improvement district are not indefinite because described as running along a certain street to the place of beginning, though another street intervenes between such street and the place of beginning, where the line between the end of the designated street and the place of beginning is a straight one, as course and distance yield to fixed monuments in land surveying.
    5. Municipal corporations — street improvement — excessive assessment. — Where an assessment in an improvement district exceeded the 20 per cent, limit fixed by the statute (Crawford & Moses' Digest, § 5666), the assessment is void, though the assessment is based on an estimate of costs which includes an item for unforeseen expenses, which might not be needed.
    6. Municipal corporations — street improvement — assessment.— In determining the benefits from street improvements, the assessors should take into consideration the peculiar situation of each lot, including the fact that some of the lots had access to pave- ■ ments already constructed.
    7. Municipal corporations — street improvement — allowance for improvements.- — -Under Crawford & Moses’ Dig., § 5672, where property owners had curbed and guttered their property, and such improvement was of value to an improvement district formed to improve the street, the commissioners of the district should allow the value of such improvement as a set-off against their assessments.
    8. Municipal corporations — assessment of benefits. — Property owners in an improvement district can not object that the assessed benefits equal the cost of the improvement.
    9. Municipal corporations — separate improvement districts.— Where separate improvement districts for paving and guttering streets were attacked on the ground that the work was in reality a single improvement, and that the estimated cost of the combined improvements exceeded the statutory 20 per cent, limit, the prima, facie presumption that the improvements are separate, arising out of the petition of the property owners and the ordinances of the city council, is not overcome by proof that such improvements are ordinarily constructed as a single improvement; it being necessary to show that it would be impracticable to construct one without constructing the other.
    Appeal from Crawford Chan eery Court; J. V. Bour-land, Chancellor;
    reversed.

      Joseph B. Brownv, for appellants.
    1. The petitioners were not estopped to attack the assessment. 2 Page & Jones on Taxation, p. 1696; 35 S. W. 726; 115 Ark. 88; 70 Id. 451; 117 Id. 98. ' The court erred in ruling’ that estoppel precluded signers of either petition in the-creation of the district from attacking the validity of either petition. A petitioner must lie held to intend that the improvement will be constructed and assessments levied in a manner provided by law.
    . The court’s attitude in suggesting a motion to make more definite and certain was well taken. If defendants were at a loss to know the names of parties plaintiff, the motion referred to would have disclosed the information. Authorities need not he cited as it is well settled.
    2. It was error to exclude the testimony of plaintiff’s expert witness, Poos, as a question of fact was raised as to whether or not the two districts were created for the purpose of making one improvement and therefore illegal because the cost exceeded 20 per cent, of the value of the property. This was settled in 75 N. T. 354, which see. Also 138 N. W. 853. 135 Ark. 315 has no application.
    3. The court erred in denying plaintiff’s request for a perpetual injunction on the ground that it was admitted by defendants and proved that the cost of the paving alone within the district was estimated at $84,000 which was more than 20l per cent, of the value of the property in the district as disclosed by the last county assessment. Kirby’s Digest, § 5683.
    4. The court erred in precluding plaintiffs from introducing testimony on the inequality, unjustness, unequi-tableness and discriminatory nature of the assessment, and that they were improperly levied. The imputation of fraud on part of the assessors was not requisite; the issue was raised whether a constitutional right had been infringed, and plaintiffs were entitled to be heard on the question.

      Starbird & Starbird, for appellants.
    1. The assessments are illegal and void. The place of commencement is indefinite and uncertain, and the cost is excessive. Kirby’s Digest, § 5683. The cost exceeds 20 per cent, of the value of property in the district. 115 Ark. 94; 86 Id. 21; 106 Id. 46..

      An assessment which does not take into consideration the fact that the paving needs of property is furnished or partly furnished by former pavements bnilt at the expense of the property by former improvement districts is not valid. The benefits accruing to the property in the old district from the improvement should be considered in determining the benefits to accrue from the new improvement. 109 Ark. 90-7; 97 Id. 342-3. The assessors refused to consider the former pavement, and the assessment is invalid and should be set aside.
    2. The testimony of the assessor was competent, and it was error to exclude it. 86 Ark. 21.
    3. The doctrine of estoppel does not bar appellants. They are not estopped. It was the duty of those who were authorized to exercise powers which might find the property of appellants to see that the provisions of the statutes under which they were acting were complied with. 59 Ark. 344-361. The boundaries of the districts are uncertain, and the commissioners have assessed more than 20 per cent, of the value of the property in the district, and the assessment of benefits is invalid.

      E. L. Matlock, for appellees.
    1. There was no error in refusing to admit the evidence offered or tendered. C. & M. Digest, § 5672. The assessor’s evidence as tendered was not sufficient, if admissible at all. The assessments were not excessive, and the evidence fails to show that they were not fair, equal and just. 80 Ark. 462; 81 Id. 80; 84 Id. 527; 93 Id. 563; 98 Id. 543; 99 Id. 508.
    4. The tender of evidence was objectionable for two reasons. (1) It was not shown by the witness Foos that he had ever seen the plans of two improvement districts or the estimates of cost of same, and he was not qualified as an expert. 132 Ark. 511. (2) Appellants proposed to prove merely a conclusion of law.
    5. There was another failure of proof on part of appellants to sustain their allegations in the complaints. It was not error to admit the new parties as plaintiffs. C. & M. Digest, § 5668. This statute has been sustained by a long line of our own decisions, too numerous to cite. A legal proceeding is not begun when a party empowers an attorney to appear and act for him, but when the attorney in pursuance of authority does appear and act. 45 Atl. Rep. 735. It was error to permit new parties plaintiff to be made.'
    6. The proof utterly fails to overcome the presumption that the improvement board will do its duty and obey the statute and hold the cost within the statutory limit. Appellants have utterly failed to prove their case.
    7. Appellants are estopped by signing the petitions. 115 Ark. 88.
   Smith, J.

On September 9, 1919, an ordinance was passed by the council of the city of Van Burén creating Paving District No. 3 for the purpose of paving certain streets therein designated. On the same day the council passed an ordinance creating Curb and Gutter District No. 1, for the purpose of curbing, guttering, and draining the streets which were to be paved by Paving District No. 3.

Within the time limited by law J. L. Rea, J. H. Butler and H. P. Meyer, filed suits attacking the two districts on numerous grounds. About the same time M. L. G-arrett and W. J. Martin filed suits for the same purpose. All these plaintiffs had signed the petitions for both improvements. The causes were consolidated and tried together, and from a decree dismissing these suits for want of equity is this appeal.

The districts are attacked on the following grounds:

(1) That the boundaries of the districts have not been designated with the certainty required by statute.

(2) That the commissioners of the district and the city council have assessed and levied more than twenty per centum of the value of the real estate according to the last county assessment.

(3) That the assessors specifically refused to consider the present condition of appellants’ lands in the districts by reason of their paving needs being wholly or partly supplied by public and private pavements and improvements already built.

(4) The fact that the assessments are an expense spread upon the districts, and are not special benefits enjoyed by appellants’ lands fairly assessed against them.

(5) That the improvements proposed as separate improvements constitute in fact a single improvement, the cost of which very largely exceeds twenty per cent, of the value of the real estate lying in the district.

In answer to these objections, it is first contended on behalf of the districts that the plaintiffs are estopped to raise these questions, for the reason that they had signed the petitions for the creation of the districts. The court below appeared to have had this view, and permitted other property owners who had not signed the petitions to become parties plaintiff to the suits, and the trial proceeded in the name of these new parties to a final decree.

We think the court should not have permitted the new parties to be made plaintiffs. Several months had then expired since the publication of the notices of the ordinances creating the districts; and the effect of the court’s action was to permit these persons, by adopting the pleadings of the persons whose names are set out above, to prosecute litigation which the statute required them to begin within thirty days.

Section 5668, C. & M. Digest, prescribes the period of limitation for the institution of suits to test the validity of these ordinances, and is as follows:

“Section 5668. Within thirty days after the passage of the ordinance mentioned above, the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time. And all persons who shall fail to begin legal proceedings within thirty days after such publication for the purpose of correcting .or invalidating such assessment shall be forever barred and precluded.”

We think, however, the court was in error in dismissing the plaintiffs’ complaint because they had signed the petitions for the districts. The petitioners, in signing the petitions, consented only that the law be followed, and the petitions themselves conferred no authority beyond the statute. Rayder v. Warrick, 133 Ark. 491; Nunes v. Coyle, 148 Ark. 365.

Of course, where property owners know that the commissioners have exceeded their authority, they may do some affirmative act which will estop them from thereafter questioning the legality of the commissioners’ action, as was done in the case of Harnwell v. White, 115 Ark. 88. But these plaintiffs took no such action. They merely petitioned in conformity with the statute for the creation of the districts.

We think the boundaries of the districts were sufficiently described. The objection to the boundary is that, after reaching Bois D’Arc Street, the boundary is described as thence northwesterly along Bois D’Arc Street to the place of beginning. Bois D’Arc Street does not extend to the place of beginning. Second Street intervenes between the end of Bois D’Arc Street and Main Street, the place of beginning, and the distance is three blocks. But Second Street is an extension of Bois D ’Arc Street. A line to the point of beginning from Bois D ’Arc Street is a straight one, and this part of the boundary line — a line between two fixed points — is, therefore, definite and certain, as both course and distance yield to fixed monuments in land surveying. Johnson v. Hamlen, post p. 634; Doe v. Porter, 3 Ark. 18; Harrell v. Hill, 19 Ark. 102; Brown v. Hardin, 21 Ark. 324; Chapman & Dewey Lbr. Co. v. Levee Dist., 100 Ark. 94; Scott v. Dunkel Box & Lbr. Co., 106 Ark. 83; Paschal v. Swepston, 120 Ark. 230.

Wo think the second objection is well taken, in so far as it applies to Paving District No. 3. The valuation of the real estate in the district as shown by the last county assessment was $418,420. The twenty per cent, limitation fixed by statute would limit the cost of any improvement in that district to $83,684. Tbe estimated cost of the paving is, we think, $84,000, which is, of course, in excess of the twenty per cent.

On behalf of the district it is insisted that the estimated cost of the improvement is only $78,000. The controversy about the estimated cost arises over an item of $6,764 which is designated as “unforeseen” in the report of the board of commissioners of Paving District No. 3 which was filed in open council meeting March 1, 1920. The court below excluded this item of $6,764 in determining the estimated cost; and that action is defended on the ground that no showing is made that its expenditure will be necessary to complete the improvement, and that the cost of the known and necessary expenditures is only $77,236. Such, however,, is not the case. The expenditure of this item of $6,764 is sufficiently probable to cause its insertion in the estimate of cost contained in the commissioners’ report to the council, and the ordinance creating the paving district, which was passed April 12,1920, contains a recital that “the estimated cost of said improvement is $125,000. ’ ’ While this last named sum appears to include interest — a thing permitted by the statute — it appears also to include the estimated construction cost of $84,000.

We think the third objection is also well taken. It was shown that, before the organization of Paving District No. 3, lots in this district 3 belonging to certain of the plaintiffs herein, fronting on Main Street, had been paved and curbed upon that front at great expense, and that such paving and curbing was in good repair, and was in daily use, and was sufficient for the needs of all the property so fronting on Main Street. But the assessors, in making the assessment, refused to take into consideration the condition of said property by reason of said former pavement which had been built by Paving District No. 1 and that certain other plaintiffs had, privately and at their own expense, paved portions of their own property and had built curbs and gutters; and the assessors bad also refused to take that paving and curbing and guttering into account in assessing the better-ments.

These improvements should have been taken into account. In assessing benefits to accrue to property by reason of an improvement, it is the duty of the assessors to take into consideration the peculiar situation of each and every piece of property to be assessed.

It is true District No. 3 did not propose to repave streets which an older district had paved; but this older district had paved streets on which lots in District No. 3 fronted, and it would have been proper, therefore, to consider that the lots which would be in two districts had access to pavements already constructed in determining what additional enhancement in value would result from the construction of other pavements. This, of course, is a question of fact, and we do not undertake to say what finding the commissioners should have made. We only hold that those conditions should have been taken into account in determining what betterment would result from the construction of the proposed improvements.

Section 5672, C. & M. Digest, applicable to this phase of the case, reads as follows: “Section 5672. If in the construction of sidewalks or making other improvements any owner of taxable property in the district shall be found to have improved his own property in such manner that his improvement may be profitably made a part of the general improvement of the kind in the district, being also as good as that required by the system determined upon by said board, the board of improvement shall appraise the value of the improvement made by the owner, and shall allow its value as a set-off against the assessments against his property. And, in case the owner who has made such improvements shall be found to have failed to come up to the required standard, the board may allow him the value of the materials thereof, so far as the same may be profitably used in perfecting the system aforesaid, as a set-off against his property thus improved. In such cases the board shall issue to the owner a certificate showing the amount of set-off allowed, which certificate shall be received by the collector in lieu of money for the amount named therein charged against said property.”

The commissioners should have taken into account the contention of the property owners in regard to their curbing and guttering. Their curbs and gutters might, or might not, have possessed value as defined in section 5672, C. & M. Digest, supra. iBut the property owners’ contention in this respect should have received sufficient attention at the hands of the commissioners for them to have determined that fact. The assessment of better-ments by the assessors is not influenced by the value to the district of the curbing and guttering; but, when the curbs and gutters have value to the district, that value should be ascertained by the commissioners as provided in section 5672, C. & M. Digest, and certificates issued by the commissioners showing what that value is, to the end that the certificate may be paid to “the collector in lieu of money for the amount named therein charged against said property.”

"We do not think the fourth objection is well taken. It does appear that the betterments assessed exactly equal the total estimated cost. No attempt was made to show that the assessment was otherwise improper than the failure of the assessors to take into account certain existing improvements, which failure we have already discussed. It is not shown that éxcessive betterments have been assessed. The showing is that total estimated betterments equal total estimated cost. This, of itself, is not a fatal defect. The cost of the improvement can, of course, never exceed the betterments. But where the betterments are fairly and uniformly determined, and that finding is not the result of a purpose to raise sufficient revenue to construct the improvement, whether the betterments equal the cost of the improvement or not, there is no legal or constitutional requirement that the full betterment be assessed. No betterment can be assessed unless an honest and impartial finding is made that an enhancement of valufi results from the proposed improvement, and the amount of this betterment can never exceed the estimated enhancement in value resulting from the improvement. But, if, acting honestly and impartially, the assessing officers conclude the betterment will exceed cost, and they decide to proportionately reduce their estimate of betterments, so that the total betterments assessed shall not exceed the known estimate of cost, we think they have not transcended their authority, nor have they acted in contravention of the Constitution or the statutes of the State.

We think the court did not err in the ruling made excluding the testimony of a witness named Poos in regard to the identity of the improvements. In the case of Bottrell v. Hollipeter, 135 Ark. 315, we said: “The petition of the property owners for, and the ordinance pursuant thereto creating, the two districts are at least prima facie evidence that the petitioners and the town council considered that the improvements provided for did not constitute a ‘single’ improvement, as designated in the statute. The facts stated in the answer and admitted by the demurrer of appellant to be true show that they were not essentially one improvement.” The witness was a contractor, and had never seen the plans for the proposed improvement. He would have testified— had he been permitted to do so — that such improvements were considered by the engineering profession as constituting a single improvement. He did not offer to testify, however, that the improvement could not be separately and successfully constructed. He would have testified that they were usually constructed together, and, therefore, regarded by the engineering profession as a single improvement. But that testimony would not have shown that they were essentially one improvement.

To overcome the prima facie presumption arising out of the petition of the property owners and the ordinance of the council, something more is required than a mere showing that paving and curbing and guttering are ordinarily constructed as a single improvement. •

The presumption would not be overcome unless there was an affirmative showing that it was not practicable to construct one without constructing the other, or the showing made that one might not be first constructed as a complete improvement and the other subsequently constructed as another separate and complete improvement.

There are cases cited in appellants’ brief which hold that the question of the identity of these improvements is judicial, and not one of fact. But this court held otherwise in the case of Bottrell v. Hollipeter, supra; and we now hold that the testimony excluded by the court was not sufficient to overcome the prima facie presumption arising out of the enactment of the ordinances creating the districts.

Other objections to the districts are urged in the briefs; but they are questions which we think d'o not require discussion here. These were certain questions of fact in regard to the assessed values of property within the districtsand it does not appear that the finding of the court thereon was clearly against the preponderance of the evidence.

Decree reversed and cause remanded.


text:
    Johnson v. Hamlen.
    Opinion delivered May 23, 1921.
    1. Municipal corporations — improvement districts — separate improvements.- — -Where plaintiff alleged that two separate improvement districts had been created to pave certain streets, and to grade, drain, curb and gutter the same streets, the two districts having the same boundaries, it was not error to overrule a demurrer to the answer of the commissioners of the two districts alleging that the two improvements were distinct, that either improvement could be done without the other, and that the cost of neither district would exceed 20 per cent, of the assessed value of the lands in the district.

      2. Municipal CORPORATIONS — improvement districts — boundaries. A mistake in the last call in the description of the boundaries of an improvement district, in publication of the ordinances creating the district, reading “firty-one degrees west,” where it should have read “forty-one degrees west,” was immaterial where the call was from one known point to another known point, and a line drawn between these points completed the boundary.
    Appeal from Pulaski Chancery Court; J. E. Mar-tineau, Chancellor;
    affirmed.

      S. L. White, for appellants.
    The two districts constitute only a single district, and the double assessment is in direct violation of the law and void. The boundaries of the two districts are coterminous and identical. 105 Ark. 65. The improvement district undertaken exceeds the 20 per cent, cost and is invalid. C. & M. Digest, § 5666; 135 Ark. 315; 115 Id. 95. The grading, curbing, guttering and paving are for one improvement district, and there is no authority under our law for splitting the district into two districts, and district 275 is void because there was not a real copy of the ordinance published as required by law.

      Wallace Townsend, for appellees.
    1. The case presented here is identical and settled by 135 Ark. 315.
    2. District No. 275 is not void because of a misprint in the publication of the ordinance. 104 Ark. 298. Any mistake was cured by a perfect description in another part of the ordinance. Bead as a whole, there is no reasonable doubt as to the property included in the district. The errors are merely typographical and do not confuse or mislead any one and can not be regarded as material. The publication fully complies with the object of such publication and enables property owners to ascertain what property is included in the district and is void.
   Smith, J.

The complaint in this cause contained the following allegations: That appellees constituted the board of improvement for Street Improvement Districts Nos, 274 and 275 of Little Bock; and that appellants, who were the plaintiffs below, are owners of real property within the boundaries of each of said districts. That said district No. 274 was created for the purpose of grading, draining, curbing and guttering certain streets, more particularly described in the ordinance creating same. That district No. 275 was established on the same day for the purpose of paving the same streets. That the petitions for the two districts were circulated at the same time, were signed by the same petitioners, and were a part of the same movement for the improvement. That the boundaries of the districts were identical and coterminous, and that the streets to be graded, drained, curbed and guttered in district 274 were the identical streets to be paved in district 275, and that both districts were created for but one improvement, the grading, etc., being a portion of the street and an essential part of the paving ; that the paving could not be done except without the grading, draining, curbing and guttering; that the organization of the two districts for the one improvement was in violation of the law; that the cost of the improvement would be in excess of twenty per cent, of .the value of the real estate within the boundaries of the district.

It was' further alleged that the ordinance creating district 275, as passed by the city council, correctly described a portion of the district as “thence north forty-one degrees west fifty feet to point of beginning,” but in the publication of the ordinance in the newspaper said portion of the district is erroneously described in the r>rearable to section 1 as “thence north north firty-onr> degrees west fifty feet to point of beginning,” and was erroneously described in section 1 of the ordinance as “thence north forty-one degrees west fifty feet to point of beginning.”

The complaint further alleged that the law required the city clerk to publish the ordinance in some newspaper within twenty days; but the notice published was no notice,. as one could not ascertain the boundaries of the district on account of the error in description set out above.

The commissioners answered, and denied that the improvements contemplated were in their nature essentially a single improvement. They alleged that the streets conld he graded, drained, curbed and guttered, and it would be one complete improvement. That the second district provided for the paving, which was in itself a complete improvement; and that either improvement could be done without the other, and that the cost of neither district would exceed twenty per cent, of the value of the land in the district.

A demurrer to this answer was overruled, and the plaintiffs have appealed.

On the question of the identity of the improvement, the ease is controlled by the case of Bottrell v. Hollipeter, 135 Ark. 315. The question here raised was there decided, and the question arose in that case, as in this, on demurrer.

It was contended in the case of Bottrell v. Hollipeter, supra, that the opinion of this court in the case of Board of Improvement v. Brun, 105 Ark. 65, was controlling, and that therefore the separate districts petitioned for could not be organized. But the court distinguished the cases on the facts and said: “Appellant cites and relies upon the case of Improvement District v. Brun, supra, as authority for his contention, that the districts herein challenged were created to complete what was in fact but a single improvement. The case does not support appellant’s contention. There was no allegation that the underground drainage was unnecessary and not incident to the work of paving. But here the allegations of fact in the answer are that ‘the storm-sewers are not an essential part of the pavement but are entirely separate.’ That ‘the pavement could be made without the storm-sewer.’ * * * That ‘the curbing is no part of the paving, * * * nor is the gutter an essential part of the pavement.’ These allegations were properly pleaded, and the demurrer to the answer admitted the truth of them. * * *

“The petition of the property owners for, and the ordinance pursuant thereto creating, the two districts are at least prima facie evidence that the petitioners and the town council considered that the improvements provided for did not constitute a ‘single’ improvement, as designated in the statute. The facts stated in the answer and admitted by the demurrer of appellant to be true show that they were not essentially one improvement. ’ ’

The objection to the description is not well taken. The description complained of began at a fixed known point, and was given to another known point, which was fifty feet from the point of beginning. This last call in the description — the one complained of — should have read, “Thence north forty-one degrees west fifty feet to point of beginning.” Instead it read, “Thence north north firty-one degrees west fifty feet to point of beginning.” This discrepancy is unimportant. As we have said, the last call was from one known point to another known point, and a line drawn between those two points completed the boundary. This last boundary line was only fifty feet in length, and any discrepancy* in the notice as published as to the number of degrees west of north which this line would run in connecting the two fixed points is immaterial, as both course and distance yield to fixed monuments in land surveying. Doe v. Porter, 3 Ark. 18; Harrell v. Hill, 19 Ark. 102; Brown v. Hardin, 21 Ark. 324; Chapman & Dewey Lbr. Co. v. Levee Dist., 100 Ark. 94; Scott v. Dunkel Box & Lbr. Co., 106 Ark. 83; Paschal v. Swepston, 120 Ark. 230.

Decree affirmed.


text:
    George v. State.
    Opinion delivered May 23, 1921.
    1. Criminal law — evidence—inference of witness. — Where, on a prosecution for murder alleged to have been committed on a stairway, a witness who did not see the parties at the time and had no personal knowledge of their relative positions, was asked as to what the appearance of a freshly scraped place on the third step indicated, and the court properly sustained an objection, and confined his statement to what he saw; the inferences therefrom being for the jury.

      ,2. Homicide — instruction as to self-defense. — Where in a murder trial the testimony warranted a finding that defendant was the aggressor, an instruction that if he was the aggressor he could not plead self-defense was not objectionable as being abstract, nor for failing to contain the qualification “unless he in good faith withdrew from the conflict as far as he could, and did all in his power consistent with his safety to avoid the danger and avert the necessity of killing the deceased;” no objection being taken to such failure, and the qualification being contained in other instructions.
    3. Criminal law — instructions.—Since no- instruction can declare the whole law in a murder case, defendant was not prejudiced by the action of the court in dealing with separate phases of the case in separate instructions.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.
    J. N. Rachels and G. G. McKay, for appellant.
    The court erred in refusing to give the instructions asked by defendant. They correctly state the law of this case, the law is well settled and no citations are necessary.

      J. S. TJtley, Attorney General, and Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. No proper objections were made nor exceptions saved to the instructions.
    2. The error of excluding a statement of a witness will not be considered on appeal if appellant did not offer to show what the statement was. 88 Ark. 562; 87 Id. 123; 133 Id. 599; 93 Id. 410; 215 S. W. 723.
    3. It is inadmissible for a defendant to prove a conversation between himself and one of his witnesses. 72 Ark. 409; 105 Id. 697; 125 Id. 189. Appellant made no offer to show what the statement or answer was.
   Smith, J.

Appellant was convicted of murder in the second degree for killing Bliss Chatman. He admits the testimony is legally sufficient to support the verdict, but insists that error was committed in excluding testimony, and in giving and in refusing instructions.

According to appellant, he and deceased were good friends prior to the time of the hilling, and spent much of their time together. Appellant testified that some money and a razor and some other personal effects were stolen from a dresser in his room, and he had reason to suspect the deceased had taken them. He further testified that Chatman had made an insulting proposition to his wife; but that fact had not been communicated to him by her at the time of the killing. He went to see Chatman about the lost articles, and upon meeting him inquired, “Bliss, what do you mean- — ” but the question was not completed, as deceased immediately assaulted him. It is the theory of the defense that Chatman supposed appellant was inquiring about the insult to his wife, and, believing he was about to be assaulted — if not killed — he made such a vigorous assault on appellant as that appellant was compelled to shoot in his necessary self-defense, when, in fact, appellant had no purpose of provoking a difficulty, and intended by his question only to inquire about the lost articles.

The testimony on the part of the State is to the effect that appellant armed himself and went in search of Chat-man, and assaulted him as soon as he found him, and killed him by shooting him.

The men met on a stairway, and a witness, Foster, was asked about a freshly-scraped place on the third step from the bottom. Foster was asked what the appearance of the place indicated, and the court sustained an objection to that question, and in doing so said: “Let the witness state what he saw.” The court was correct in this ruling. The witness did not see the parties at the time of the difficulty, and had no personal knowledge of their relative positions on the stairway, and his testimony was properly confined to a statement of what he saw. The inferences deducible from the appearance of the scraped place on the step were for the jury — -and not for the witness — to make.

Over appellant’s objection the court gave the following instruction: “You are further instructed that, if you find from the evidence in this case that the defendant, Lee George, was the aggressor in the difficulty, or that he mutually engaged in the difficulty, he can not plead self-defense in justification of his act in shooting and killing the deceased, Bliss Chatman. ’ ’ This was an oral instruction. In addition, there were written instructions numbered 1 and 2, which dealt with the same phase of the case. These instructions told the jury also that, if appellant was the aggressor, he would have had no right to kill the deceased; hut the written instructions contained this qualification: “Unless he in good faith withdrew from the conflict as far as he could, and did all in his power consistent with his safety to avoid the danger and avert the necessity of killing the deceased. ’ ’ The court would, no doubt, have qualified the oral instruction to conform to the written instructions, had that point been made.

But the absence of this qualification from the oral instruction does not appear to have been the ground of the objection to it. The objection is that the instructions on that phase of the case were abstract, in that there was no testimony that appellant was the aggressor. Counsel is mistaken in this contention. According to appellant’s own testimony, he was hemmed in by deceased on the stairway and viciously assaulted; but the jury did not accept that version of the difficulty as the truth. As has been said, the testimony fully warranted a finding that appellant was the aggressor throughout.

Over appellant’s objection the court gave an instruction numbered 3, which reads as follows: “No. 3. You are instructed that the law has such regard for the sanctity of human life that one person may not kill another, even in his necessary self-defense, except as a last resort, and when he has done all in his power consistent with his safety to avoid the danger and avert the necessity of the killing; so, in this case, if you find from the evidence and circumstances, beyond a reasonable doubt, that the defendant could have reasonably avoided the danger to himself and averted the necessity of killing the deceased, it was his duty to have done so.”

The objection to this instruction is that it leaves out of account the appearance .of danger as appellant saw it. The instruction is a correct declaration of the phase of the case with which it dealt, and another instruction dealt with the appearance of danger as the appellant saw it and correctly declared the law in that respect.

No instruction could declare the whole law in the ease, and appellant was not prejudiced by the action of the court in dealing with different phases of the case in separate instructions, inasmuch as each instruction correctly declared the law applicable to the phase of the case with which it dealt.

Appellant asked a number of instructions which were refused. But these instructions, in so far as they correctly declared the law applicable to the issues raised, were covered by other instructions which were given.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Porter v. Vail.
    Opinion delivered May 23, 1921.
    LANDLORD AND TENANT — CONSTRUCTION OP LEASE. — A lease of land “to be farmed in corn, peanuts and all grain and crops,” which obligated the tenant “to furnish two-thirds of all seed planted, also plant, cultivate, harvest and deliver in barn or wareroom one-third all crops grown on said land,” held not to include a volunteer hay crop, but only cultivated peanut, corn and other grain crops.
    Appeal from Woodruff Circuit Court, Southern District ; J. M. Jachson, Judge;
    reversed.

      Jonas F. Fyson, for appellant.
    The court erred in directing a verdict for appellee. Under the undisputed testimony, appellant was entitled to an instructed verdict. Appellee was not entitled to the possession of the premises because he had not in any way complied with, his contract. 36 Ark. 518; 104 Id. 322; 41 Id. 535.
    Appellee in his contract agreed to move out of the house on ten days’ notice, which was given, and appellant was entitled to possession. 100 Ark. 629; 102 Id. 388. Under the law and evidence, appellant was entitled to possession and the relationship of landlord and tenant existed. 130 Ark. 431; Kirby’s Digest, § 5028.

      Ross Mathis, for appellee.
    1. Both parties asked a peremptory instruction and this was an agreement that the issue should he decided by the court. 100 Ark. 71; 105 Id. 25; 118 Id. 134.
    The court’s instructions as to the measure of damages was correct, and appellant raises no issue as to that part of the instruction. Under the evidence the jury would have been warranted in returning a verdict for a much larger amount.
    2. The contract contained no forfeiture clause; no rent was shown to be due and unpaid and there was no abandonment.
    The absence of a forfeiture clause in a lease will prevent a landlord from terminating a lease, and even if there is a forfeiture clause for breach of covenant, it is strongly construed against the lessor. Forfeitures are not favored by the courts. 24 Cye. 1347, 1360-1.
    3. The title to the hay was in appellee, and the jury would have been warranted in awarding him a larger sum. The title to grass is in the tenant at will. 72 Ark. 302.
   Humphreys, J.

The appeals are briefed separately, but the issue involved on each appeal is between the same parties and dependent upon a construction of the same contract, so one opinion will suffice in the two cases.

No. 6721 is an action of unlawful detainer for the possession of a farm, and No. 6722 a suit in replevin for 266 bales of hay cut and removed from the farm.

The issue joined in the first action is whether appel-lee was unlawfully evicted from the premises, and, if so, the extent of the damages sustained by him on account of the loss of the volunteer hay crop upon the farm, resulting from the eviction.

The issue joined in the second action involved the title to 266 bales of hay which appellee cut and removed from the premises to a barn in the nearby town of Hunter before the eviction.

The causes were submitted upon the pleadings and evidence, at the conclusion of which both appellant and appellee asked for a peremptory instruction in the first case, which resulted in a directed verdict and judgment in that ease for appellee for damages to the amount of $500;, and, in the second case, a directed verdict on the court’s own motion in favor of appellee for the hay, or its value, $266.

Prom the judgment in each case, an appeal has been duly prosecuted to this court.

The evidence in the two cases is, in substance, as follows: In January, 1919, appellant verbally leased ap-pellee the farm in question for the year, to raise rice, cotton. corn and peanuts, for a stipulated rental of one-third of the crops. Appellee failed to comply with the verbal contract, and, on the first day of June, 1920, the following written contract was entered into between the parties, towit:

“Contract by M. A. Porter, first party, and P. M. Vail, second party.

“I, M. A. Porter, party of the first part, agree to lease all farming land in section 20, township 5 north, range 1 west, not in cultivation in rice in this year, 1919, A. D., to be farmed in corn, peanuts and all grain and crops, and party of the first part further agrees to furnish one-third of all seed planted on said land.

“Party of the second part, P. M. Vail, hereby agrees to furnish two-thirds of all seed planted, also plant, cultivate, harvest and deliver in barn or wareroom one-third all crops grown on said land.

“Party of the second part, F. M. Vail, also agrees to vacate residence on said land at any time with ten days’ notice from party of the first part, M. A. Porter.

“M. A. Porter.
“Frank M. Vail.
“Hunter, Arkansas, June 1, 1919.”

Appellee did not plant or cultivate the land leased. He remained in possession, however, and in August harvested about twenty-five acres of wild grass which grew on the land that should have been cultivated. He baled and removed 266 bales of the hay to a bam in Hunter, and, according to the evidence of appellee, hauled one load of the third left in shocks upon the ground to the baler, when he was told by appellant not to touch any more of the hay. Appellee left the rest of the bay_upon the ground, and, in obedience to the written notice from appellant and the writ issued in the unlawful detainer action, moved off of the premises. There was an estimate of 1,500 bales of hay, cut and standing, left upon the ground. It would have cost $500 to harvest it, and its value in the bale would have been about $1,500.

The sole question presented by this appeal is whether the court erred in construing the contract to include the volunteer hay crop. Appellee’s contention is that the contract had relation to all crops grown on the leased land, whether volunteer or cultivated crops. We think the contract entirely unambiguous, and that such crops as were to be harvested and divided in the proportion of two-thirds to one-third were crops to be planted and cultivated by appellee. It was specified in the contract that the landlord should furnish one-third and the tenant two-thirds of the seed to be planted, and the only kinds of crops mentioned were peanut, corn and other grain crops. Beading the contract as an entirety, it is quite apparent that the parties had in contemplation crops to be planted and cultivated, not volunteer crops. The contract did not embrace uncultivated grass grown on lands which should have been cultivated. Under the undisputed facts, the court should have directed a verdict in each case for appellant.

For the error indicated, the judgment in each case is reversed and remanded with directions to enter a judgment in each case for appellant.