text:
    Little Rock Street Improvement District No. 508 v. Taylor.
    Opinion delivered July 6, 1931.

      Horace Chamberlin, for appellants.

      Nat R. Hughes and Sam Rorex, for appellee.
   Smith, J.

On February 28,1931, appellants filed an intervention in the proceedings in the Pulaski Chancery Court wherein the affairs of the American Exchange Trust Company were being wound up as an insolvent bank.

The intervention contained allegations to the following effect. Street Improvement District No. 508 was organized under the provisions of c. 89, Crawford & Moses’ Digest, and amendments thereto, for the purpose of paving certain streets in the city of Little Rock. Three surety companies, which are parties to the intervention, are engaged in the corporate surety business in this State.

The American Exchange Trust Company ivas a banking corporation, organized under the laws of this State, but was insolvent on November 15, 1930, at which time it was taken over by the State Bank Department for liquidation purposes. Notwithstanding its insolvency, the bank never had less than $375,000 in money on hand at any time after incurring the obligation therein stated since March 24, 1930. On the date last mentioned Improvement District No. 508 appointed the American Exchange Trust 'Company, hereinafter referred to as the bank, 'as its treasurer, and the bank accepted the appointment, pursuant to §§ 5702-5707, Crawford & Moses’ Digest, and the district thereupon “placed with its said treasiirér and in its trust department several hundred thousand dollars of its funds, accompanied by written instructions prepared by the treasurer but signed by the district, as follows: ‘Funds are to be drawn out only in payment of necessary expenses and on engineer’s monthly estimates.’ ” It was alleged that the bank charged, and the district agreed to pay, the fee allowed by § 5705, Crawford & Moses ’ Digest, as compensation for services as such treasurer and for disbursing funds by paying outstanding bonds and interest coupons. It was alleged that the relation thus created between the district and the bank was not one of creditor and debtor, but a fiduciary one authorized by the statute referred to.

That, to secure the faithful accounting and proper payment of such funds, the bank, at the date of its appointment as such treasurer, executed three separate bonds, aggregating $500,000, with the surety companies— parties interveners, as sureties. That on the date the bank closed it had on hand as treasurer of the district, “asa remainder of such funds so placed with it on March 24, 1930, the sum of $110,769.33,” which the Bank Commissioner refused, on demand, to pay over, but did allow the same as a common claim.

It was further alleged that, upon the demand of the district, the surety companies paid it the full ¿mount of the deposit on December 20, 1930, and took an assignment of the demand to themselves and thereby became subrogated to all the rights of the district.

It was prayed that the Bank Commissioner be ordered to pay the full amount of the demand as a preferred claim. A demurrer to the intervention was sustained, and it was dismissed as being without equity, and the interveners have appealed.

This case is sufficiently similar to the recent case of Taylor v. Street Imp. Dist. No. 343, 183 Ark. 524, 37 S. W. (2d) 84, to be controlled by the principles there announced. In that case it was recited, in the agreed statement of facts upon which the case was tried, that certain improvement districts in the city of Little Rock had turned certain moneys over to the American Exchange Trust Company as treasurer of the districts, and that the bank had on hand at all times thereafter until it closed its doors a sum of money in excess of these deposits. It was agreed that the money had been deposited in the bank for the purpose of paying bonds and interest thereon outstanding against the districts. That each of the districts had executed a pledge, which had been duly recorded, of all assessed benefits and other resources of the districts, for the payment of the bonds and the interest thereon. This pledge required the boards of commissioners of the districts to draw vouchers against the deposits to pay bonds and interest when due, and authorized the bank, if such warrants were not drawn, to apply the funds on hand for such purposes and to charge the same to the districts, and that this had been done in several instances.

The pledges constituted the bank as the trustee and treasurer of the districts, and funds of the districts were deposited in the bank in that capacity, and in no instance were funds used by the districts other than for the purposes for which they had been raised.

Upon the trial of that case in the court below, it was held that the claims of the districts constituted trust funds and special deposits and entitled the districts to preference and to payment in full. In reversing the decree so holding it was pointed out that § 1 of act 107 of the Acts of 1927 had classified creditors of a bank of which the Bank 'Commissioner had taken charge as “secured creditors,” “prior creditors,” or “general creditors.” We there quoted from that act as follows: “(4) the owner of a special deposit expressly made as such in said bank, evidenced by a writing signed by said bank at the time thereof, and which it was not permitted to use in the course of its regular business, (5), the beneficiary of an express trust, as distinguished from a constructive trust, a resulting trust, or a trust ex maleficio of which the said bank was the trustee, and which was evidenced by a writing signed by said bank at the time thereof. *' * * All creditors not in this section hereinabove classed as secured creditors of said bank, including the State of Arkansas and any of its subdivisions, shall be general creditors thereof. ’ ’

Upon the authority of this statute, it was held that the claims of the districts were not preferred, but were common claims, and should be classed as such. In so holding we said that a. special deposit, under the law, must be expressly made as such in the bank and evidenced by a writing signed by the bank at the time it is made, and which the bank was not permitted to use in the course of its regular business, and that the Legislature appeared to have restricted the definition of special deposits in providing for their preferential payment to such only as are made expressly and evidenced by a writing signed by the bank at the time of the making thereof, showing such deposits as not permitted to be used by the bank in the regular course of its business.

It was not alleged in that case, nor is it in this, that there was any written agreement between the bank and the district expressly making the deposits of the district special deposits, which denied to the bank the right to use the money in the course of its regular business. It is insisted, however, in the instant case that the law under which the deposit was made imposed this condition. Section 5706, Crawford & Moses’ Digest, is cited to support this condition. This section reads as follows: “It shall be unlawful for the collector or treasurer of the improvement district, or of any other subordinate officer appointed by the board, to loan or use, or to be interested in the loan or use, of any funds raisedby the improvement district. ”

We do not think, however, that this was the purpose or the effect of the statute. It was not made unlawful for an improvement district to make a general deposit in a bank. Indeed, act 182 of the 1927 session of the General Assembly, approved March 22, 1927, expressly gave the commissioners and treasurers of all improvement districts the right to deposit the funds of the districts in any bank, requiring a bond conditioned for the apt, full and complete payment of all funds so deposited, together with the interest thereon. It affirmatively appears, from the allegations of the intervention, that the commissioners of District 508 had proceeded under the authority of this act 182 and had taken bonds from the intervening surety companies to indemnify the district against loss on account of such deposits.

It may be conceded, as learned counsel for appellants contend, that, by subrogation, the surety companies had succeeded to all of the rights which the districffpossessed in this deposit; but they have no greater rights than the district had. The allegation of the intervention that the district’s funds were placed in the bank, read in connection with all the other allegations of the intervention, mean nothing more than that the funds were deposited in the bank, and § 5706, Crawford & Moses’ Digest, quoted above, has no application to this deposit. This deposit did not constitute a loan or use of this money, nor make the commissioners of the district interested in the loan or use thereof, and was nothing more than a deposit which the district was authorized to make, and had made, pursuant to the authority of act 182 of the Acts of 1927.

This was, of course, a deposit of trust funds of an improvement district, but so also was the deposit in the case of Taylor v. Street Imp. Dist. No. 343, supra, but we there said: “The deposit of the trust funds of the improvement districts, taxes collected and benefits assessed, although they were trust funds, so far as the particular officials collecting and depositing them is concerned, and known, by the bank to be such, did not become special deposits, in the absence of a written agreement by the bank making them such at the time of their deposit, and the deposit was a general one under the law, the owner or creditor standing upon the same footing as the other general creditors, entitled to no preference or priority of payment. (Citing numerous cases).”

We think, under the allegations of the intervention, that there was no such agreement, as is required by the act of 1927, to constitute the improvement district a secured or prior creditor, and its rights are those only of a general creditor, and its claim was therefore properly allowed as a common claim.

The decree of the court below to this effect must therefore be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Climer v. State.
    Opinion delivered July 6, 1931.
    J. Arthur SpinTcs and Partain <& Agee, for appellant. Hal L. Norwood, Attorney General and Pat Mehaffy, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Crawford County for selling liquor and, as a punishment therefor, was adjudged to serve a term of one year at hard labor in the State penitentiary, from which judgment of conviction, he has duly prosecuted an appeal to this court.

The only assignment of error urged for a reversal of the judgment is the action of the trial court in overruling appellant’s challenge to W. V. Boatright as a juror- in the case. His voir dire examination revealed that he was a commissioner of the Fort Smith & Van Burén Bridge District, which was organized under authority of act 119 of the Acts of 1909. The district embraces Upper Township of Sebastian County and all of Crawford County except three townships. The district is divided into two divisions, one being called the Sebastian Division and the other the Crawford Division. Under an amendatory act to the act referred to, three commissioners are elected by each division, and the six commissioners constitute the board of commissioners who represent the property owners of the district in the management of same.

After appellant exhausted all of his challenges, he challenged W. V. Boatright on the ground that he was a county officer and subject to peremptory challenge under § 6382 of Crawford & Moses’ Digest. That section is as follows:

“Whenever any juryman shall be presented for examination in impaneling any jury, it shall be a ground for peremptory challenge, that said juryman is a postmaster, .justice of the peace or county officer.’-’

Agents or representatives of the owners of the land in an improvement district are in no sense county officers. This court has so ruled in the cases of State ex rel. Going v. Higginbotham, 84 Ark. 537, 106 S. W. 484, and Nakdimen v. Fort Smith & Van Buren Bridge District, 115 Ark. 194, 172 S. W. 272. It necessarily follows that W. V. Boatright was not subject to a peremptory challenge as a juror under § 6382 of Crawford & Moses’ Digest.

The judgment is affirmed.


text:
    Spann v. Langston-Williams Lumber Company.
    Opinion delivered July 6, 1931.

      Hughes d Davis and Randolph, Randolph d Clifton, for appellant.

      James G. Coston and J. T. Coston, for appellee.
   Humphreys, J.

Appellee brought this suit against appellant to recover $2,500 for a breach of warranty in a deed to standing timber on certain lands in Lauderdale County, Tennessee, executed by appellant and her husband, J. C. Spann, to appellee on December 7,1925.

Appellant filed an answer denying the breach or any liability on the warranty and a cross-complaint to reform the timber deed so as to show that she joined in the deed for the sole purpose of conveying her marital rights therein.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a dismissal of appellant’s cross-complaint and a judgment against her for $2,600 upon her breach of warranty, from which is this appeal.

The facts in the ease material to a determination of the issue involved on the appeal are undisputed and are as follows:

J. C. Spann bought the lands upon which the timber was standing from Rice and Kirkpatrick on August 11, 1920, and executed a mortgage thereon to secure a large part of the purchase money. On the 7th day of December, 1925, J. C. Spann and appellant executed a deed to appellee for the timber thereon in consideration of $9,500, which deed contained the following clauses:
“This indenture, made this 7th day of December, A. D. 1925, by and between J. C. Spann and Mary E. Spann, his wife, parties of the first part, and unto and .with Langston and Williams Lumber 'Company, Inc., parties of the second part.” * * *
“And the said parties of the first part do hereby' covenant with the second parties, and their lawful heirs, successors and assigns, that they will forever warrant and defend the title of said timber and right-of-way, against all lawful claims whatsoever.”

The deed was signed by J. C. Spann and Mary E. Spann and the acknowledgment is as follows:

‘ ‘ A CKNOWLEDGMENT.
“State of Arkansas, County of Mississippi, ss.
“Be it remembered, that on this, the 29th day of December, 1925, before me, Nora Wise, a duly commissioned and acting notary public in and for said county and State, personally appeared J. C. Spann, grantor in the foregoing indenture, and known to me to be the person whose name appears signed to the same, and acknowledged that he had signed the same for the consideration and purposes therein mentioned and set forth and desired me to so certify, which is accordingly done.
“And I further certify that on this day voluntarily appeared before me Mary E. Spann, wife of the said J. G. Spann, to me well known as the person whose name appears on the foregoing instrument, and in the absence of her said husband declared that she had of her own free will signed the relinquishment of dower and homestead therein contained for the purposes herein contained and set forth, without compulsion or undue influence of her said husband.
“In witness whereof, I have set my hand and seal the day and date first written above.
(Seal) “Nora Wise, Notary Public.”

When the deed was presented to appellee by J. C. Spann, it refused to accep't same and close the deal until Mary E. Spann had signed it. At the time she signed and acknowledged the deed she told the notary public that she was doing so to convey her marital rights in the land and without any intention of binding herself personally on the warranty contained therein. This statement to the notary public was not communicated to appellee. After she executed the deed, appellee accepted it and closed the deal without demanding an abstract to the lands in reliance on the covenants and warranties contained in same. The mortgage held by Rice and Kirkpatrick on the lands for the purchase price was foreclosed and the land sold on January 25, 1927. The mortgagees purchased the land at the foreclosure sale and thereafter brought suit to enjoin appellee from cutting and removing the timber. About two years after the injunction suit had been pending, appellee compromised the claim and suit for $2,500 and by doing so prevented a $7,000 loss. It then brought this suit against appellant on her warranty, her husband having in the meantime, died.

The testimony failed to show a mutual mistake in the execution of the timber deed, so the trial court did not commit an error in refusing to reform the deed and in dismissing appellant’s cross-complaint.

The only question remaining to be determined on the appeal is whether a married woman who joins in the execution of a deed with her husband to lands belonging to him is liable upon the covenants and warranties contained therein. Prior to the emancipation act, Crawford & Moses ’ Digest, § 5577, liberating married women from marital unity in respect to contracts, a married woman was not bound by the covenants in a deed executed by her and her husband to lands. Benton County v. Rutherford, 33 Ark. 640. Since the adoption of the emancipation act, a married woman may exercise all the rights of a .feme sole and is liable upon her covenants and warranties just as much so as her husband or any third party would be. As we understand, the disabilities of married women with respect to their contracts have been as completely removed by act in Tennessee as in Arkansas. In Tennessee a married woman is bound upon the covenants in a warranty deed to lands belonging to her husband in which she .joins as a grantor unless she is entitled to a reformation thereof showing that she joined therein for the sole purpose of conveying her marital rights. Watts v. Ramsey, 156 Tenn. 463, 2 S. W. (2d) 411. In, the instant case, appellant was not entitled to a reformation of the deed under the proof. Therefore, she is bound by the covenants of the timber deed.

No error appearing, the decree is affirmed.


text:
    Connor v. Bowers.
    Opinion delivered July 6, 1931.

      June P. Wooten, for appellant.

      Fred A. Is grig, for appellee.
   Humphreys, J.

This is an appeal from a judgment of the circuit court of Pulaski County, Second Division, sustaining on appeal on trial de novo the purported will of Mrs. Mamie Hollen Casaretto of date August 22, 1929, which was filed for probate in the probate clerk’s office by appellee and rejected by the probate court upon the ground that the instrument was a forgery.

The purported will devised all the property of the testatrix to appellee, the beloved nephew of her departed husband except $1 to her surviving nephews and nieces of blood kin.

The testimony adduced upon the trial of the cause was in sharp conflict as to the genuineness of the instrument and signature of the testatrix thereto.

The testimony introduced by appellant tended to "show that the instrument, including the signature, was a forgery, and the testimony introduced by appellee tended to show that the instrument and signature were genuine.

This issue of fact was submitted to the jury under correct instructions, and, in view of the conflict in evidence, this court on appeal is precluded from passing upon the weight of the testimony or the merits of the cause. We have carefully read the testimony and find that the verdict of the jury is sustained by substantial evidence.

Appellant contends, however, for a reversal of the judgment upon the alleged grounds that the trial court, in the course of the trial, admitted incompetent testimony and excluded competent testimony; and in overruling* her motion for a new trial.

The testimony objected to as incompetent was that of John Monteath and James F. Moore, who testified to the genuineness of the signature of the testatrix to the purported will and the testimony of C. L. McWilliams to the effect that on or about the date of the will he took the attorney who prepared same to his office and was requested by the attorney to witness a will he was going to prepare for a woman in case the witness returned from North Little Rock in time.

It is argued that witnesses Monteath and Moore did not sufficiently qualify themselves to testify as experts concerning- the genuineness of the signature of the testatrix of the will. This court ruled in the case of Newport Manufacturing Co. v. Alton, 130 Ark. 542, 198 S. W. 120, that a witness might testify as an expert where experience and observation in the special calling of the witness gives him a knowledge of the subject in question beyond that of persons of common knowledge. Witness Monteath testified that he had 45 years’ experience in handling checks in cotton transactions, and that in the position occupied by him it was necessary for him to compare signatures and handwriting. Moore testified that he had had Ii8 years’ experience as a bank teller, in which position it was imperative for him to distinguish between genuine and fictitious signatures. Both witnesses sufficiently qualified themselves by experience to testify as experts concerning- the g-enuineness of signature to instrument under the rule announced by this court in the case of Newport Manufacturing Co. v. Alton, supra.

The record reflects that testimony was introduced without objection to the fact that George M. Heard, about three weeks before he died, prepared the purported will, and it was not error to admit the testimony of McWilliams in corroboration of the testimony unobjected to.

The testimony excluded by the trial court, over the objection of appellant, consisted of letters written by the testatrix in her lifetime to appellant and her brothers and sisters, in which she expressed affection for them. The general rule announced by this court in the cases of Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33, and Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242, is that declarations of a decedent either before or after the execution of a will, unless a part of the res gestae, are inadmissible where the issue is one of forgery.

The testimony of John Vick, excluded by the court over the objection of appellant, tended to show a desire on appellee’s part to participate in the distribution of the estate of his aunt or to receive a gift of money from her nephews and nieces by blood. The issue involved was one of forgery of the instrument, and we do not think testimony of this character would tend to prove or disprove that issue.

The trial court did not abuse its discretion in overruling appellant’s motion for a new trial on the ground of newly discovered testimony. The evidence alleged to have been discovered after the trial of the cause was testimony tending to contradict McWilliams as to the time he took the attorney who prepared the will to his office and to show that Mrs. Mary Bettis, who testified that she typed the purported will on August 22,1929, was not in Arkansas at the time, and that some time before the filing of the purported will Winfield Heard, one of the subscribing witnesses, was seen tracing signatures and remarked that he could trace a signature so as to make it look like a genuine signature. It was not set out in the motion by whom the facts alleged could be proved or the whereabouts of the witnesses by whom such proof could be made. On account of the failure to set out the names and whereabouts of the witnesses by whom the newly discovered evidence could be established, the trial court did not abuse its discretion in ■ overruling the motion.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Lange v. Taylor.
    Opinion delivered July 6, 1931.

      Carmichael <& Hendricks, for appellant.

      Sam Rorex and Nat R. Hughes, for appellee.
   Kirby, J.

The only question for determination here is one of law, whether the owner of shares of stock in a failed bank in the,hands of the State Bank Commissioner may set off a sufficient amount of her deposit in the bank to discharge the 100 per cent, assessment of her stock therein levied by the Bank Commissioner in accordance with the statute.

The statute, § 702, Crawford & Moses’ Digest, reads as follows: ‘ ‘ The stockholders of every bank doing’ business in this State «shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock; .provided, that persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to liability as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in such trust fund would be, if living and competent to act and hold the estate in his own name.”

In Davis v. Moore, 130 Ark. 128, 197 S. W. 295, the court construing this statute, said: “The language of this section, as well as many other provisions of the statute, are copied from the National Banking Act of Congress, which had been construed by the Supreme Court of the United States prior to the passage of our statute. In other words, our statute is a borrowed one, and, according to established canons of construction, we take the statute with its judicial interpretation. * * # The provisions of our statute are almost identical with the National Banking Act with regard to the enforcement by the Bank Commissioner of the double liability of stockholders.” * * * Each iof the statutes declares the double liability in precisely the same language.” See usca, title 12, § 64, p. 112.

The liability provided by the statute to be enforced against the stockholders is not a debt due the bank, although it arises out of the contractual relation incident to the purchase or ownership of the stock, and can not be considered a penalty, but a sum of money equal to the par value of their stock, for which the statute requires they “shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock.”

Stockholders in National banks, it is almost uniformly held, cannot set off their superadded and increased liability under the National Banking Act against their individual claims against the insolvent bank, since this would operate as a preference of the stockholder over all the other creditors. Hobart v. Gould, (D. C. N. J. 1881) 8 Fed. 57; Wingate v. Orchard (Wash. 1896) 75 Fed. 241, 21 C. C. A. 315; Williams v. Rose (D. C. N. J. 1914) 218 Fed. 898.

It was said in Robinson v. Brown (1901 C. C. A.) 126 Fed. 429: “The object of the double liability is to realize a fund for the ratable payment of all corporate debts. This fund could not be realized if those who were at once creditors of the corporation and its stockholders were permitted to offset their credits and liabilities. Such creditors would thus gain a preference over all others.”

In Duke v. Force, 120 Wash. 599, 208 Pac. 67, 23 A. L. R. 1354, the court held, construing a statute like ours, that a stockholder creditor could not set off his claim against the bank against his statutory liability for the additional assessment, the two claims not being in the same right, one being a claim in favor of the creditor against the stockholder, and the other in favor of the stockholder against the bank.

In Wehby v. Spurway, 30 Ariz. 274, 246 Pac. 759, the court, construing the liability of the stockholder of a bank under the National Banking Act, held his liability was such as could not be set off against the depositor’s claim against the bank, saying: “The bank itself has no authority whatever over .it; it can neither compel its payment nor release the stockholders from their liability for it. In the collection and distribution of it the receiver represents the creditors as distinguished from the bank, even though in collecting what is due the latter and paying- what it owed at the time of insolvency he represents it.” The Supreme Court of the United States denied a petition for a writ of certiorari in this case on November 1, 1926, 273 U. S. 722, 47 S. Ct. 112.

Under the Montana statute on stockholder’s liability, which is identical with ours, the Supreme Court of that State held in Barth v. Pock, 51 Mont. 418, 155 Pac. 282, that the fund collected from the assessment of stock was of such a character as to preclude the idea that a stockholder can have his creditor’s claim set off against his stockholder’s liability. See also Reimers v. Larson, 52 N. D. 297, 202 N. W. 653, 40 A. L. R. 1177.

For construction of other like statutes holding that the superadded liability of a fund for equal and ratable distribution among the creditors of a bank is not subject to set-offs by stockholders of their claims against the bank, see Hood v. French, 37 Fla. 117, 19 So. 165; Gentry v. Alexander, 16 Ind. 471; Parker v. Carolina Sav. Bank, 53 S. C. 583, 69 Am. St. Rep. 888, 31 S. E. 673. Also Hughes v. Marvin, 216 Ky. 190, 287 S. W. 561.

In 1 Morse on Banks and Banking (6th ed.), p. 788, it is said: “A stockholder is not entitled to set off against an assessment on his stock the amount of his individual claim against the bank.”

' Notwithstanding our statute on set-offs is a liberal one, it is readily apparent from the language of the statute fixing the liability of the stockholder of an insolvent bank “for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock, ’ ’ that it was not the intention to permit the settlement of such liability by a set-off of the failed bank’s indebtedness to such stockholder.

It follows from what has been said that no error was committed in sustaining the demurrer to the intervention of appellant in which it was attempted to set off against her double liability as a stockholder to the bank a sufficient amount of the indebtedness due her by the bank as a depositor to satisfy and discharge her additional liability as a stockholder.

l’he judgment is accordingly affirmed.


text:
    Howell v. State.
    Opinion delivered July 6, 1931.

      Cravens & Cravens, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Kirby, J.

Upon information filed in the Fort Smith municipal court a slot machine, known as a “Mills Mint Vending Machine,” was seized as a gambling device, and upon a hearing H. C. Howell, one of the proprietors of the Hattaway Drug Company’s stores where the machine was being operated, filed an intervention claiming that he was the owner of the machine and prayed that it be returned to him.

The intervention was denied, and an appeal was taken to the circuit court, where, upon trial, the mint vending machine was held to he' a gambling device and subject to seizure as such, and the intervention of appellant was denied accordingly, from which .judgment this appeal is prosecuted.

The undisputed testimony shows the machine was operated as a mint vending machine, and upon the deposit of a nickel in the slot and the pulling of the operating lever it uniformly released one package of mints of the usual value of 5c, never more or less, and when the container was empty, the machine automatically returned the nickel to the player.

Upon depositing a nickel in the slot and a lever being pulled, reels are caused to revolve displaying pictures of fruit and bells; and at irregular intervals, in addition to the mints delivered, brass tokens or slugs, which can be played back into the machine, are delivered in number from 2 to 20, the machine not releasing a package of mints when a token is put into the slot, but the reels do spin showing the pictures of the fruits, etc.

The contract between the owner of the machine and the operator recites that the tokens would not be used as trade checks for any purpose other than the playing of the machine when delivered. The machine upon being operated by a nickel put into the slot, not only delivered a 5c package of mints upon the lever being pulled, but also displayed on the reels the “fortune” of the player or wise sayings or maxims. The fortune telling feature was removed from the machine by the owner or operator upon advice of counsel that it would not be considered a gambling device after this was done before it was set up and operated. The machine as operated only delivered a nickel package of mints and the tokens on uncertain and irregular occasions, and although the tokens upon being-put back into the machine operated it, nothing resulted from such operation except the spinning of the reels with the pictures of the advertisements thereon. No mints could be delivered except by playing the machine with a nickel deposited in the slot.

In Rankin Mills Novelty Co., 182 Ark. 561, 32 S. W. (2d) 161, this court held that a mint vending machine of like kind as the one exhibited herein, except that the tokens delivered at irregular intervals with the mints could be put back into the machine, enabling the player to play a game of “symbolic baseball,” was a gambling-device, the operation of which was prohibited by statute. It was there said: “In order to constitute a gaming device under the statute, it must be one that is adapted or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, and any one who shall bet any money or other valuable thing, or ‘any representative of any thing that is esteemed of value,’ is guilty under § 2634 of Crawford & Moses’ Digest of betting on a gambling device. By § 2640 of the same chapter of the Digest, gambling is defined as the betting- of any money or any valuable thing on any game of hazard or skill. It is clear from these sections and the entire chapter on g*aming that the word ‘property’ as used in § 2630 and words ‘valuable thing’ mentioned in other sections are used synonymously, and that any valuable thing or ‘any representative of any thing that is esteemed of value’ is ‘property’ within the meaning of § 2630, supra.”

In 27 C. J. 989, in describing rules formulated by courts for determining when a slot machine is a gambling device, it is said: “But one which seems to have been accepted very generally is that, where one who plays a slot machine stands to win or lose money, trade, or checks, by hazard of chance, the machine is a gambling device. The machine is a gambling device where its operation is such that, although the player in any event will receive something, he stands a chance to win something in addition.” See also State v. Marvin, 233 N. W. (Iowa) 486; Harvie v. Heise, 150 S. C. 277, 148 S. E. 66; Moberly v. Deskin, 169 Mo. App. 672, 155 S. W. 842.

The machine is usually held to be a gambling device where its operation is such that; although the player in any event will receive something, “he stands a chance to win something in addition.”

The majority is of opinion that since, by the operation of the machine, the player stands a chance to win something in addition to the package of mints sold and delivered him at the regular price by the delivery at irregular intervals of the tokens, which may be played back into the machine, causing the machine to operate and the pictures to be exhibited thereon, that they are included in the expression in the statute “any representative of anything that is esteemed of value, ’ ’ and that the machine as operated is a gambling device within the meaning of the statute, as construed in Rankin v. Mills Novelty Co., supra.

The judgment is accordingly affirmed.


author: Mehaffy, J.

text:
    Courtney v. Reap.
    Opinion delivered July 6, 1931.

      Carmichael & Hendricks, for appellant.

      J. 8. Utley and E. G. 8hoffner, for appellee.
   Mehaffy, J.

On December 3, 1930, the State Bank Commissioner took over the Citizens’ Building & Loan Association of Little Rock, Arkansas, an insolvent building and loan association. The bank commissioner brought suit in the Pulaski Chancery Court alleging that the officers and directors had made illegal and unlawful loans without taking proper security. On December 17, A. J. Reap was appointed receiver by the Pulaski Chancery Court for the Citizens’ Building & Loan Association.

On March 19, 1931, the appellant, Ethel Courtney, filed an intervention in the Pulaski Chancery Court, alleging that about nine years ago she borrowed $4,000 from the building and loan association. She alleged that she intended to pay this back in installments, and did not intend to buy stock in the association. She received a little less than $4,000 from the association, and paid $53.35 monthly for 108 months, the total payments being $5,761.80. She alleged that the receiver refused to credit her with any amount whatever, and that she was entitled to an offset in satisfaction of the loan.

She also alleged that she paid more than 10 per cent, interest, and that the loan was usurious and void on that account.

Answer and cross-bill was filed by the receiver. It was alleged at the time that appellant borrowed the $4,-000 she purchased 160 shares of stock of the par value of $25 per share, and that, as collateral security for the money borrowed, appellant hypothecated and pledged to the association the shares of stock; that she at the time executed and delivered a bond to the association and a mortgage on lot 5 in block 3 of W. B. "Worthen Addition to the city of Little Rock, Arkansas.

The receiver asked .judgment against the appellant, and that the real estate included in the mortgage be sold for the payment' of said judgment.

The case was tried in the chancery court on an agreed statement of facts. The court dismissed the intervention of appellant and decreed a foreclosure. The appellant had paid a total of $5,761.80.

"We do not deem it necessary to set out the agreed statement of facts because, as stated by appellant, the main question is the.right of set-off, or whether the appellant is entitled to any credit for dues paid, on the value of her stock against the loan.

It is conceded by appellant that she is not entitled to a set-off unless the cases of Hale v. Phillips, 68 Ark. 382, 59 S. W. 35, and Taylor v. Clark, 74 Ark. 222, 85 S. W. 231, should be overruled.

Appellant calls attention to the rules adopted by the different courts, but it would serve no useful purpose to discuss these rules or to decide whether one or the other is more equitable and just because the cases referred to establish the rule in this State, and, the rule having been established and followed for many years, we think it should not now be departed from. We do not think the former decisions should be overruled.

The facts in the case of Hale v. Phillips, supra, are the same as in this case, so far as this question is concerned, and the court there said, speaking of the principle of the building and loan association: “Its principal object is to raise a fund to advance to those of its members who may desire to borrow money. For this purpose each member subscribes for the number of shares in its stock he desires, and at stated times and short intervals pays upon the same small sums of money, called dues. He continues payments until they, with the profits derived from other sources, after deduction of expenses and losses, equal the face value of the stock, when the stock is matured. The shares are then called in, and the owner receives the face value thereof in cash, unless he has received an advance on his shares, and in that event the obligation based upon such advance is canceled. * * * The member who has received the advance on his stock still holds his interest in the common fund and in the management and success of the association. He is as much interested as the members who have received no advance. All are bound in proportion to the amount of their shares for the payment of the expenses and losses of the association. The latter class of members is interested in the increase of the common fund because upon it depends the payment of its shares; and the former is interested because upon it depends his discharge from the obligation to pay dues and interest until the maturity of his shares.”

Whether one who subscribes for stock is a borrower or not really makes no difference. If one subscribes for stock and is not a borrower, he makes payment on the stock in exactly the same way and the same amount that one does who has subscribed for stock and pledged it as collateral security to pay the loan.

The non-borrowing stockholder may pay dues for years, and if the association becomes insolvent and the stock is worthless, he loses all he has paid. The same is true of the borrowing member. He pays on his stock, and, if the association becomes insolvent, he loses ¿11 he has paid on his stock, but in addition to paying on stock, the borrowing member pays interest on the money he has borrowed, and if he has paid no more than the interest on the loan, he of course still owes the entire amount of his loan. Both the borrower and the investor lose all they have paid on the stock if the stock becomes worthless. There is no difference between the situation of the borrower and the investor as to the stock.

In case of insolvency, if the stock is worthless, the borrower should be charged with the amount advanced to him, together with the interest agreed on, and should be credited with all the amount he has paid on the loan, but he should not be credited with the amount paid on the stock. He owes the debt as a borrower, and as a stockholder, if the stock becomes worthless, he loses what he has paid on the stock. So far as the stock is concerned, and the payments thereon, he bears his part of the burden in the same way that the non-borrowing stockholder does.

As said in Hale v. Phillips, supra: “Were it otherwise, and he entitled to be credited with dues on the amount of his indebtedness for advances, it is evident that he would receive the value of his shares, so far as that value is the result of dues, while the members who have received nothing would be compelled to bear all the losses.”

In other words, if the payments made on stock by the borrowing members were applied on the debt, the borrowing member would receive for his stock all that he had paid on the stock if it were worthless, and the non-borrowing member would lose everything he had paid on his stock.

■The rule adopted by this court requires each to bear his part of the burden, and, so far as the payments on stock are concerned, each stockholder, whether he is a borrower or not, is treated like every other stockholder. The borrowing member’s duty as a stockholder is not changed because he borrows money from the association.

The court said in a later case: “The court is of the opinion that the rule adopted in Hale v. Phillips, supra, and here followed, more nearly conserves than any other the principles of equality, mutuality and fairness, upon which building and loan associations are supposed to be founded.” Taylor v. Clark, 74 Ark. 220, 85 S. W. 232.

The rule adopted in Hale v. Phillips, supra, is followed here, and the decree is therefore affirmed.

Mr. Justice McHaney not participating.


author: McHaney, J.

text:
    Lummus Cotton Gin Company v. Daggett.
    Opinion delivered July 6, 1931.

      II. B. Mixon aud Earl King, for appellant.

      Smith S Fitzsimmons, for appellee.
   McHaney, J.

Appellant sold and delivered to Lem Banks and Soudan Mercantile Company certain cotton gin machinery in September, 1926, under a conditional sales contract by which title to the gin machinery was retained in it until two certain notes were paid, -one due in January, 1927, and the other in January, 1928. Neither of said notes were paid. This machinery was installed in certain buildings owned by Banks and the Soudan company, located on Missouri Pacific Railway. Company’s right-of-way. In December, 1929, appellee purchased said buildings at an execution sale under a .judgment against Banks and the Soudan company. The ma-, chinery was still in the building, but no claim was made, by appellee to it.,. Shortly after acquiring title to the buildings, appellee notified appellant’s agent that it would have to pay rent to keep the machinery in the building, at the rate of $40 or $50 per month. In October, 19'29, appellant made a contract with Lee County Planting Company to sell the gin machinery to it, but such contract was never carried out. John W. Mann, as receiver, operated the Soudan plantation prior to the organization‘of the Lee County Planting Company; and rented the gin machinery at $1 per bale from appellant, with consent of Banks, the rentals to be applied on said notes. July 24, 1930, Banks and the Soudan company re-conveyed the machinery ,to appellant on the return of. the two unpaid purchase money notes,, and on August 12, 1930, this suit was broug’ht to collect $308 in rent, and a trial resulted in a verdict and judgment for $300.

A reversal is first sought on the ground that a directed verdict should have been given at appellant’s request for the lack of any substantial evidence to support a verdict against it. The court, at appellant’s request, correctly told the jury that, if it “did not actually retake possession and regain the use and control of the gin machinery until August 6, 1930,” there was no occupation of the gin buildings by it, and no verdict could be returned against it; and that the mere fact that default was made in payment of the notes by Soudan Mercantile Company did not work a forfeiture of its right to possession, use and control of the machinery, but on the contrary it retained such right until appellant either demanded the property or repossessed it. This is true because the conditional vendee has an interest in the property which he can sell or mortgage. Clinton v. Ross, 108 Ark. 442, 159 S. W. 1103; Loden v. Paris Auto Co., 174 Ark. 720, 296 S. W. 78. But we think the evidence, although meager, was sufficient to take the case to the jury, under the above instructions. If appellant retook possession after default in the payment of the last note on January 1, 1928, or after January 1, 1927, under the accelerating clause in such notes, it became liable to appellee for a reasonable rent after his purchase of the buildings, as the occupancy thereafter was its occupancy and not referable to Banks or the Soudan Mercantile 'Company. There being sufficient evidence to go to the jury on this question, its verdict is binding here.

Mr. Mann testified that in his opinion the reasonable rental value of the gin buildings was $40 or $50 per month. Appellant objected to this testimony for the reason that the witness did not qualify to give his opinion. He had lived there about a year, had been in charge of the property and operated it, and we think it sufficiently appears that he was qualified to give his opinion. Moreover, appellee had warned appellant that it would be expected to pay at that rate if it continued to occupy the building after December 21,1929. It did so for nearly eight months thereafter. Nor do we think the verdict excessive. Appellant offered no evidence of the rental value, so the jury was justified in finding it to be approximately $10 per month. Neither the cost to appellee at the execution sale, nor its sale price to his vendee, furnishes a safe criterion for the rental value of the buildings.

Affirmed.


author: Mehaeey, J.

text:
    Wilson v. State.
    Opinion delivered July 6, 1931.

      Deem, Moore é Brasil, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mehaeey, J.

Appellant was indicted and convicted of the crime of forgery and the crime of uttering a forged instrument, and his punishment was fixed at two years’ imprisonment in the penitentiary.

Motion for a new trial was filed and overruled, and the case is here on appeal.

He was charged with forging a check and the name of the supposed maker, who was alleged to be a fictitious person. He was also charged with uttering the forged instrument.

The evidence on the part of the State tended to show that the appellant had drawn a check on the Bank of Scotland, bearing the signature of R. O. Jones, for the sum of $6; that said check was returned marked No. AC.; and that there was no R. O. Jones in Van Burén County. A number of witnesses testified to different checks alleged to have been forged and passed in the same way, and the evidence also shows that the persons whose names were signed to the checks were fictitious, persons.

The evidence on the part of the appellant tended to show that he was a dentist, and did work in 4 or 5 counties, and that he did dental work for R. O. Jones and received the check in part payment of the account. The appellant testified that he made special engagements at different towns in Van Burén County and had done this for 15 or 16 years for the practice of dentistry; that he did not know R. O. Jones personally, but that he knew his face, and that Jones came in and spoke to him as if he were glad to see him, and J ones told him he lived out 4 or 5 miles from Scotland; that he took the checks because he thought Jones would be back to get the work finished. He testified about the other checks that were introduced, but he did not know the parties from whom he claimed to have received the cheeks, and these parties could not be found.

The appellant contends that the court erred in admitting testimony relative to other checks than the one to R. O. Jones. The appellant was tried for forging the R. O. Jones check and uttering the R. O. Jones check.

The court admitted in evidence a list of checks ranging in amount from $2.50 to $12.50, one of the checks'being dated July 14, 1927, one in 1928, one in 1929, and the others during the year 1930. All of the checks introduced were passed by the appellant about the same time that the check of E. O. Jones was cashed, but the State introduced evidence of these other checks of an earlier date, but did not introduce the checks themselves. All of this testimony was introduced over the objection of appellant. This court recently said:

“And so, too, it is held that one offense cannot be proved by the evidence of the commission of another offense unless the two are so connected as to form a part of one transaction. But, as wholly independent acts, the commission of one offense cannot be shown by evidence of the commission of another. And the introduction of such testimony is also inadmissible because it raises another and different issue which would call for the introduction of other testimony upon such issue and. thus would involve the true and specific issue presented to the jury for its determination, whether the defendant was guilty of -the specific crime charged in the indictment.” Williams v. State, 183 Ark. 870, 39 S. W. (2d) 295.

The above is a statement of the general rule to which there are many exceptions. Evidence of similar forgeries is admissible to show a uniform course of acting from which guilty knowledge and criminal intent may be inferred. In other words, the evidence of other forgeries is admissible, not to prove the commission of the crime for which the party is being tried, but to prove guilty knowledge or intent. Underhill’s 'Criminal Evidence, § 629.

“Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. * * * It is equally important in forgery or counterfeiting to establish scienter. The accused is charged-with holding or circulating forged paper. He may hold one without being justly chargeable with knowledge of its character; when 3 or 4 are traced to him, suspicion thickens; if 15 or 20 are shown to have been in his possession at different times, then the improbability of innocence on his part decreases in proportion to the improbability that such paper could have been in his possession without his knowledge of the true character of the paper. If the accused is charged with knowingly making or holding- or passing the forged paper, the possession being shown but knowledge of its character being disputed, the fact to be proved is that the knowledge was guilty knowledge; and it is admissible to show that shortly before or after the fact charged he had made or had held or had uttered similar forged instruments to an extent that renders it improbable that he should have been ignorant of the forgery.” 1 Wharton’s Criminal Evidence, page 135 et seq.

As a general rule, it must appear that the evidence of other offenses relate to offenses that occurred shortly before or after the commission of the offense for which the accused is being tried. Melton v. State, 165 Ark. 448, 275 S. W. 701; Beck v. State, 141 Ark. 102, 216 S. W. 497; Yellington v. State, 169 Ark. 359, 275 S. W. 701.

It would be difficult to lay down any rule fixing the time of the commission of the collateral offenses before or after the commission of the crime for which the party is being tried. All the checks that were introduced in this case were competent, because they tended to show a system of operating from the date of the first check continuously to the date of the check for the forgery for which he was being tried.

“The evidence of these crimes tended to show the system or method of procedure employed by appellant to defraud, and the comparison of the handwriting in the check here alleged to be forged, and the signature written in the presence of the jury tended to identify him as the author of all. the writings and as the person who bought the clippers and tendered the forged check in payment thereof.” Walker v. State, 171 Ark. 375, 284 S. W. 36.

Moreover, this class of evidence must be limited within such a period that it may naturally be seen to throw light as to the intent with which the act under investigation was committed; and the question of time during which other acts may be proved seems to be largely within the trial court’s discretion. However, evidence of distinct offenses of the same character committed by the accused is admissible, though not contemporaneous nor a part of the same transaction, if it shows or tends to show that the accused had adopted the same plan to utter forged instruments in other cases as is charged by the prosecution in the case on trial.” 12 R. C. L. 168.

The testimony as to the other checks tended to show that the appellant had adopted a certain plan to utter forged instruments, and that all of the checks were forged in the prosecution of this plan.

It is next contended that the court erred in giving the jury instruction No. 7, which is as follows: “The defendant is specifically charged in this indictment with forging the check signed by R. O. Jones, and in the second count specifically charged with uttering a forged instrument, the same being a check of R. O. Jones. The other checks alleged to have been written by the defendant have been introduced in evidence, and the court instructs you that you cannot convict the defendant of any of these other alleged checks. They are only introduced to you for the purpose of shedding some light on whether the defendant is guilty or innocent of the charge in this particular indictment. ’ ’

The appellant does not set out any other instruction. No specific objection was made to this instruction. There was a general objection. The instruction is not inherently wrong. Doubtless the trial court would have made any corrections suggested by appellant, but no modification was suggested. The purpose of introducing evidence of collateral offenses is to show intent or guilty knowledge, but the instruction was not objected to on this account.

“The instruction was not inherently defective and the intention of the court should have been called particularly to the objectionable language. It is true the language was an exaggeration, but we do not think it was prejudicial.” Ross v. State, 181 Ark. 331, 25 S. W. (2d) 769; Edwards v. State, 180 Ark. 363, 21 S. W. (2d) 850.

There is substantial evidence to sustain the verdict, and the judgment is affirmed.


author: MoHaney, J.

text:
    Hoskins v. Adkins.
    Opinion delivered July 6, 1931.

      Paul McKennon, Barber ■& Henry and Troy W. Lewis, for appellant.

      G. T. Gotham, for appellee.
   MoHaney, J.

This case is an aftermath and grows out of the case of Adkins v. Hoskins, 176 Ark. 565, 3 S. W. (2d) 322. We there affirmed the action of the court in refusing to cancel certain instruments executed by appellant in that case to his wife, the appellee here, conveying certain property to her in settlement of their marital rights. This action grows ont of that settlement. Appellee sought to employ appellant as her attorney in that matter. She had separated from her husband and was living in Texas. She communicated the facts to him and desired him to meet her in Clarksville, the home of her husband. He demanded and received from her a retainer of $100 before he would go to Clarksville. When they met there and conferred about the case, he refused to have anything to do with it until an agreement was had as to his fee. They then entered into a written agreement in this regard in.which appellant agreed to bring for her a suit for divorce against her husband, and to recover her separate estate in the sum of $3,766, which had been invested in property, title to which stood in the name of her husband, and also to recover her dower, alimony, attorney’s fees and costs, for a compensation of $100 which had already been paid as a retainer, and 25 per cent, of the recovery of her separate estate, and 33 1/3' per cent, of the recovery of dower and alimony, which sums were to be paid whether the recovery was had either by suit or compromise, and she was to pay his necessary traveling expenses. It was* provided that this contract should not interfere with a reconciliation between the husband and wife.

Acting as her attorney, appellant entered into negotiations with the husband of appellee and succeeded in effecting the settlement mentioned in Adkins v. Hoskins, supra. After that was accomplished, appellant and appellee entered into another agreement settling the amount of the fee based on the contract above mentioned. Appellee figured out the amount she was due appellant according to the percentages fixed in said contract on a valuation of the property deeded to her by-her husband, which she fixed at $7,000, and agreed that appellant was due $2,019.50, for which amount she executed and delivered to him her note and a mortgage on said property to secure same. This suit was brought to foreclose said mortgage to collect the amount of said note. It was defended on the ground that the consideration therefor had failed; that her title to said property had been assailed by her former husband, and that she had been forced to employ other counsel to represent her, and had expended large sums of money in attorneys’ fees and expenses, due to his neglect in properly defending said suit, and that he had otherwise breached the contract of employment She prayed a cancellation of the note and mortgage and a judgment on cross-complaint in the sum of $956.70, which she itemized as having been paid out by her in attorney’s fees and expenses. The court found that the contract was void because of fraud practiced by appellant upon appellee, she being a client without means and inexperienced in business; that the fee contracted for was out of proportion to the work done; that the change in the original contract, from an interest in the property recovered to a sum of money certain secured by a mortgage on the same property, was accomplished by fraud upon her, she having placed confidence in him; that he did not perform his contract with her, and for that reason she contracted with another attorney to do the work appellant should have done, and that he exacted excessive expense money from her, which amounts constituted ample compensation for all work done by him; and that the contract was champertous, against public policy and void. For these reasons the court decreed a cancellation of the note and mortgage.

We think the court erred in decreeing a cancellation of the instruments sued on.' There is nothing in this record to show that appellee was overreached or that fraud was practiced upon her. She is a grown woman, sui juris, is not' non compos, but, on the contrary, she is shown to be a good business woman, having accumulated nearly $4,000 which she permitted her former husband to invest in property, which was recovered for her. She is a woman of ability, being a school teacher, and knew what she was doing when she made the contract with appellant. The courts will not make contracts for parties, nor relieve them of their contracts for fraud unless' it be proved by clear and convincing evidence. In Adkins v. Hoskins, supra, it was said: “It has been said that.the cancellation of an executed contract is an assertion of the most extraordinary power of a court of equity, and that it ought not to be exercised except in a clear case upon strong and convincing proof, and a court would not be justified in canceling a contract unless the proof was clear, strong and conclusive.”

The original contract between the parties was executed before the relation of attorney and client was consummated. The $100 retainer fee paid appellant did not establish this relation, and the undisputed proof is that appellant refused to have anything to do with the case until an agreement was had regarding his compensation. They were therefore dealing at arms’ length when it was made. The proof further is that the note and mortgage were executed after the settlement had been made with appellee’s husband, and that it was entirely satisfactory at that time and presumably remained satisfactory to her until this suit was brought. ' The execution of the note and mortgage put her in no worse condition, except as to interest on the note. As they stood, they were tenants in common, he owning an undivided one-third in some property and one-fourth in other. He could have immediately brought suit for partition and caused the property to be sold, if not susceptible of division in kind, which we assume it to be. So we fail to find in the evidence anything to satisfy the rule above announced, and hold that the court erred in so deciding..

Shortly after the settlement was made with appellee’s husband, he became dissatisfied and brought suit against appellant and appellee to cancel his conveyances. It then became the duty of appellant to defend the action both on his own account and that of appellee. While he had secured a conveyance to appellee of her interest in the property, such conveyance, was almost immediately attacked from the source from whence it came. Her agreement to pay expenses related to such expenses as might be incurred in getting title to the property and not such as were incurred in keeping it. She made no contract with appellant agreeing to pay the expense of that litigation or his personal expenses, for traveling or otherwise, nor was it her duty to hire other counsel. It appears that appellant employed and associated with him in the defense of that action other counsel. Since it was his duty to defend, the employment of other counsel must be held to be at his expense, for the settlement made with appellee’s husband and the recovery of the property by it were without value to either, unless the conveyances were sustained. We therefore hold that the court should have decreed a foreclosure of the mortgage for the amount of the note and interest, less all fees and expenses paid by appellee subsequent to the date of the mortgage.

The decree will be reversed, and the cause remanded with directions to enter a decree of foreclosure in accordance with this opinion, and for other proceedings according to law and the principles of equity.


author: Butler, J.

text:
    Castera v. Commercial Building & Loan Association.
    Opinion delivered July 6, 1931.

      D. K. Hawthorne, for appellants.

      Tom F. Digby, for appellee.
   Butler, J.

Prank Castera procured a loan from the Commercial Building & Loan Association of $1,200 which was evidenced by his promissory note for that amount with interest. To secure the payment of the note, he conveyed to M. L. Altheimer, as trustee for the loan association, block No. 33, Choctaw Addition to the city of North Little Rock, with power to sell the property in default of payment of the note when due. P. Castera died intestate, not having paid the indebtedness aforesaid, and leaving surviving- him as his sole heirs the appellants, Arthur Castera and Lytle Castera, his wife. Arthur Castera and wife entered into possession of block 33 and impressed a part of said block to the extent of one-fourth of an acre with their homestead rights. Subsequent to this, Arthur Castera, being indebted to C. E. Smith, mortgaged said block to the latter to secure the payment of that indebtedness, but his wife, Lytle Castera, did not join in the execution of the deed or acknowledge her relinquishment of dower and homestead rights therein.

The indebtedness to Smith becoming due and being unpaid, Smith brought suit to foreclose his mortgage. The appellee, Commercial Building & Loan Ass ’n, intervened in that suit, setting up its rights under the deed of trust executed by Prank Castera. The appellant, Arthur Castera, answered admitting the allegations of the intervention of the loan association and his indebtedness to Smith, but alleged that a part of block No. 33 included in the deed of trust and mortgage was his homestead at the time of the execution of the mortgage to Smith, and that such mortgage, in so far as it affected that part of the block constituting his homestead, was void for failure of his wife to join in the execution of the deed or its acknowledgment. Mrs. Castera intervened, alleging that she had not signed the mortgage to Smith, and set up her right of dower and homestead. A decree was rendered adjudging the amount due the loan association to be $11,471.25 and declaring its lien by virtue of the deed of trust aforesaid paramount to the mortgage lien

of Smith and to the homestead and dower rights of Mrs. Castera. The decree adjudged to Smith, as the sum due him, $871.25, and declared a lien on all the property subject to the paramount lien of the loan association and the' homestead of one-fourth of an acre. The decree ordered that the homestead be set apart by certain boundaries, and further that, if the sum adjudged to be due the loan association should not be paid within three days from the date of the decree, the commissioner appointed by the court should proceed to sell first all of block 33, except the one-fourth acre, and apply the proceeds to the payment of the debt due the loan association, and, in the event it should not be sold for enough to pay the debt, with accrued interest and costs, that the one-fourth acre set aside be also sold and the proceeds from that sale be applied first to the satisfaction of the debt of the loan association. The decree contained other recitals as to the disposition of any moneys remaining which it will not be necessary to notice as will later appear.

This decree was rendered on June 18, 1929. The judgment debt remaining unpaid, the commissioner gave notice of the sale of the property by publication in the “Arkansas Legionnaire” on June 29, 1929, July 7, 1929, and July 13, 1929, in which notice the day of sale was fixed for the 26th day of July, 1929, on the usual terms, and to be had at the usual place for judicial sales in Pulaski County, and within the hours prescribed for such by law. It provided that the sale was by the authority and direction of a decretal order of the court made on the 21st day of January, 1929, giving the style of the case. The property to be sold was properly described. On the date fixed in the notice the sale was duly had and conducted in the manner ordered in the decree and sold in parcels as therein directed. At this sale the loan association became the purchaser, the total amount for which the-parcels sold not being in excess of the debt and accrued interest adjudged to be due it. The commissioner duly reported the sale as having been made under the authority of the decree rendered on June 18, 1929, which report was filed on August 10, 1929. The report came on for a hearing on August 13, 1929, and was examined, approved, and the sale confirmed. The deed to the purchaser having been executed, it, too, was presented and acknowledged in open court, and by the court duly approved.

On February 27, 1930, the loan association sold lots 4, 5 and 6 of said block 33 to Annie B. Shaeffer for the sum of $4,500, conveying the same to her by warranty deed of that date, and on April 8, 1930, sold lot 9 of said block to W. M. Robinson and his wife, Lucile Robinson, for the sum of $3,657.50. Before the sales by the loan association aforesaid, and in September, 1929, the loan' association had taken possession of the property under its convóyances by the commissioner of the court and had collected the rents from the dwelling houses situated thereon.

On May 7, 1930, the appellants, Arthur Castera and Lytle Castera, filed a pleading designated “Petition of Arthur Castera and Lytle Castera to Redeem,” in which all the facts hereinbefore stated were recited, and the allegation made that the sale by the commissioner to the loan association was void for the reason “that the mortgage on said property given by Arthur Castera to C. E. Smith was void because his wife did not join with him in the mortgage and the property described in the mortgage embraced his homestead, and that Lytle Castera, wife of Arthur Castera, has a right to redeem from said sale because the sale of the property was advertised under the decree rendered on the 21st day of January, 1929, and notwithstanding the commissioner’s report of sale mentioned that decree was rendered on the 18th day of June, 1929, wherein the Commercial Building & Loan Association was a party to the suit; but a sale under the decree of June 18, 19‘29, would be void for the reason that M. L. Altheimer, as trustee, held the legal title to the property, and he was not a party to the suit, and the title still remains in him.” The petition concluded with a prayer that the report of the commissioner and the sale made by Mm be set aside and tbe deed executed by him to the loan association be canceled; that the deeds executed by the loan association to its vendees hereinbefore named be canceled, and that petitioners be permitted to redeem the property sold under the decree of the court, and offered to pay the sum adjudged to be due the loan association as its debt, together with the interest that had accrued on the same from the date of the decree and the costs that had accrued, and offered to pay any other sum which might be lawful and necessary to pay in order to effect the redemption of the property and the investiture of the title free of the liens and mortgages in the petitions, and for an accounting of the rents and profits received by the loan association and its grantees, etc.

On the 23rd day of May, 1930, the loan association filed its motion to dismiss the petition on the ground that the petition shows on its face that the term of court at which the sale was reported and at which the same was confirmed had expired for an approximate period of nine months before the petition to redeem was filed. The matter coming on to be heard on the petition to redeem and the motion to dismiss, the court sustained the motion and dismissed the petition, from which order is this appeal.

It was and is the contention of the appellants that (1) the decree and the proceedings had pursuant to its orders were void because M. L. Altheimer, the trustee named in the deed of trust executed by Frank Castera to secure the indebtedness due the loan association, was not named as a party in the intervention filed by the loan association; (2) that the sale was improperly made because notice was published in a paper not having a general circulation as prescribed by statute; (3) that the sale was void because the notice stated that it was to be made in accordance with, and by virtue of, a decree rendered January 21, 1929, whereas the decree was rendered on June 18, 1929; (4) that the time limit fixed in the decree was three days, after which the commissioner might proceed to make sale; (5) that the time of sale fixed in the notice by the commissioner was too limited, and, because of that, the appellant did not have sufficient time to arrange for the payment of the money found due by the decree.

Assuming that any one or all of the grounds alleged by the appellants were sufficient cause for setting aside the decree or the sale made pursuant thereto in the original proceeding, which we do* not decide, these were unavailing to the petitioner in this proceeding. From the recitals in the decree of June 18, 1930, it appears that the appellants were present in court by their attorney; that they had filed their answer and intervention and the court, in its decree, gave them all the relief prayed, namely, that their homestead should be exempted from sale under the mortgage given to 'Smith. They did not complain of the failure to make the trustee, Altheimer, a party, nor of the time limit of three days fixed in the decree in which they might pay the judgment before the commissioner should proceed to make the sale. It was their duty to take cognizance of all of the steps taken by the commissioner, and, if they felt their rights had been in any way prejudiced by the error in the notice regarding the date of the decree or the newspaper in which the notice was published, or the length of time intervening between the first publication of the notice and the date of sale, they should have made their objections at the time the sale came on for confirmation or at least on some day of the term of the court in which the proceedings were held.

The court judicially knows that the original proceedings were concluded during the April term, 1929, of the Pulaski Chancery Court, that that term expired by operation of law prior to the first Monday in October, and that the October term of the court expired before the first Monday in April, 1930. Therefore the petition to redeem filed on May 7, 1930, was filed at a term of the court subsequent to that when the orders complained of were made and over which the court had lost jurisdiction except for the grounds set out in § 6290 of Crawford & Moses’ Digest. There are eight grounds for which a judgment or decree may he vacated or modified after the expiration of the term, for newly discovered evidence; where defendants have been constructively summoned; for misprision of the clerk; for fraud practiced by the successful party; for erroneous proceeding against an infant, etc.; for the death of one of the parties before the judgment; for unavoidable casualty or misfortune preventing the party from appearing or defending; for errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in § 6277. It is obvious that the petition sets out none of these grounds. As early as the case of Mayer v. Bullock, 6 Ark. 282, the rule was declared that a final decree becomes absolute at the end of the term and cannot be opened for a new hearing at a subsequent term of the court. With that rule in mind, the Legislature in 1868 promulgated that statute which is now found in § 6290, supra, and in the case of Turner v. Vaughan, 33 Ark. 454, we held: “After the expiration of a term at which a decree is rendered the court rendering the decree has no power to set it aside or modify it except upon application under the statute and for- some cause therein specified.” The case of Turner v. Vaughan was where a decree had been rendered condemning the whole of the lands of the judgment debtor to be sold by a commissioner under a decree of foreclosure, and at a subsequent term the debtor sought to have exempted from the sale under the decree a part of the lands and to show that he had impressed the homestead character upon the same. In denying his right to have these lands exempted, the court said: “If, therefore, appellee had, in his answer to appellant’s bill, not only denied, as he did, that he procured the lands to be conveyed to his wife to defraud his creditors, but, as a further defense, shown that he had impressed the homestead character upon a part of the lands, and asked the court, if it found the conveyance fraudulent and set it aside, to decree to him the benefit of the homestead exemption provided for by the Constitution, the court should have so decreed.” After holding that the court rendering the decree had no power to set aside or modify the decree after the expiration of the term except upon application under the statute, the court further said: “If it be said that it is a hardship for a man to lose his homestead exemption because he failed to assert it at some particular time, or in some special mode, or in some particular proceedings, it may be replied that such is the law in relation to any defense which a man has an oppor-. tunity to make and fails to interpose it.”

In a number of decisions' subsequent to the ease of Turner v. Vaughan, supra, we have recognized the doctrine therein announced which is controlling in the case at bar. We therefore conclude that, appellants having failed to set up any of the matters alleged in the petition for redemption in the original proceeding, which appellants well might have done, the court at a subsequent term could not entertain these objections as its decree had become final. The decree of the chancellor is correct, and it is therefore affirmed.


author: Mehaeey, J.,

text:
    Raines v. Bolick.
    Dissenting opinion delivered July 13, 1931.
    For opinion of the majority of the court, see 183 Ark. 832.
   Mehaeey, J.,

(dissenting). I do not agree with the majority that act 126 of the Acts of 1923 is a general law. I think it is a local law.

The courts have generally held that a law is general, not because it embraces all the governed, but that it may, from its terms, when many are embraced in its provisions, embrace all others when they -occupy like positions to those who are embraced. Sudh a law must be based upon some substantial difference between the situation of a class or classes and another class or classes to which it does not apply.

The constitutional provision prohibiting local legislation reads as follows: ‘ ‘ The G-eneral Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” Amendment No. 12.

By this constitutional provision the Legislature is prohibited from passing any local act, except it may repeal a local act.

This court held that the power to repeal, given by this amendment, carries with it the power to repeal the original act in part. Therefore, if act 126 of the Acts of 1923 is a local act, the Legislature had the authority, under the decisions of this court, to repeal this act or any part of it. All agree that act 231 is a local act, which the Legislature would have had no authority to pass unless it repeals in whole or part act 126 of 1923, which it could not do unless act 126 is a local act.

This court has frequently held that in determining whether a statute is general or local the form of the statute does not control, and a statute in the form of a general act would be a special act if it could only apply to one city or town. McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707.

This court has also held that, while proper classification is allowable, such classification must not be arbitrary. Act 126 of 1923 expressly provides in § 24: “This act shall be operative only in counties with a population exceeding 75,000 inhabitants as shown by the last Federal census.”

The act also provides that the last Federal census shall mean the most recent Federal census taken prior to the filing of the petition for the formation of the improvement district.

This act was passed in 1923, and the last Federal census taken at that time and also at the time the Maibelvale District was formed, shows that Pulaski County is the only county in the State having a population exceeding 75,000. By the Federal census taken in 1920 Pulaski County had approximately 109,000 inhabitants. There are 75 counties in the State and in 1920 there were only four or five counties that had one-half of the required population, 75,000. Ten years later the report shows that there were only eight counties, outside of Pulaski County, that had one-half the required population, and some of these counties had fewer inhabitants in 1930 than they had in 1920.

I do not think it is a reasonable classification because in 40 or 50 years there might be other counties that would come within the provisions of this act. It is wholly unreasonable to suppose that one-fourth of the counties will have the required population in the next 40 years, and in determining whether it is a local or general act, the things .above mentioned, I think, should .be considered. I think it is manifest that there was no intention, that this act should ever apply to more than a few counties, and it is certain that it could only apply to Pulaski County for 15 or 20 years. It therefore seems to me that there can be no question about act 126 being a local law.

This court has held that when the Legislature passes an act leaving out two- counties the act is local because it. can never apply to the two counties left out, and this court holds in this case that, although leaving out two counties makes the act local, leaving out 74 counties does not make it local. If leaving out two counties makes an act local, how can, it be said that an act is general when it never could apply to half the counties in the State?

This court said in a very recent case: “The effect of excepting from the provisions and operation of the act the Grosnell Special School District and the counties of Faulkner and Sharp was to leave the law applicable only to the remainder of the State not so excepted and the law as to the excepted territory unchanged, as though act 149 of 1929 had not been enacted.” Casey v. Douglass, 173 Ark. 641, 296 S. W. 705. “The exclusion of a single county from the operation of the law makes it local, and it cannot .be both a general and a local statute.” Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617.

Nothing can be more certain than that act 126 of 1923 left out more than one-half of the counties, and if leaving out one county makes it local, leaving out more than half the counties, to -which, it never could apply, certainly makes it local.

This court held that an act was unconstitutional and void because it applied only to Mississippi County, and the court quoted with approval the following: “If its •operation and effect must necessarily be special, the act is special, whatever may he its form.” Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 235.

There are statements in some of our eases to the effect that in no other way could certain counties or cities and towns be given relief except by such legislation as act 12*6 of 1923. That may have been true at one time, but our Constitution not only provides that the Legislature shall not pass any local act, but it also expressly provides in Amendment No. 7 for municipalities and counties to pass local and special legislation of every character.

There is no longer any reason for the Legislature to pass local acts. The Constitution says that the municipalities and counties may pass all kinds of local acts.

It was certainly known when act 126 was passed that it could only apply to Pulaski County, and it was just as certain that it never could apply to a majority of the counties. It was therefore intended as a local act, although it was general in form.

As to whether act 231 of the Acts of 1931 repealed in part the provisions of act 126 is a more doubtful question. The Constitution authorizes the Legislature to repeal a special act, and this court held in Gregory v. Cockrell, 179 Ark. 719, 18 S. W. (2d) 362, that under this provision of the Constitution the Legislature could repeal a local act or it could repeal any .part of it. ' '

I think act 231 of 1931, under the decision of Gregory v. Cockrell, repealed that portion of act 126 of 1923 that authorized the creation of the Mabelvale Road District, and I therefore think the case should be affirmed. •


author: Hart, C. J.

text:
    Spence v. State.
    Opinion delivered July 13, 1931.

      Peyton D. Moncrief, J. M. Brice, A. G. Meehcm and John W. Moncrief, for appellant.

      Hal L. Nomvood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

Ruth Spence prosecutes this appeal to reverse a judgment of conviction against her for murder in the second degree upon the verdict of a jury fixing the punishment at five years in the State penitentiary. Counsel for appellant argue three assignments of error, all relating to the admission of evidence.

In the first place, it is insisted that the court erred in the admission of nonexpert evidence on the question of the insanity of appellant. Appellant shot and killed Jack Worls in the courthouse at DeWitt, Arkansas, while he was on trial for the murder of her father. The killing occurred about six o’clock in the evening just after the jury had been excused for the day and were leaving the court room. Appellant at the time was eighteen years of age and gave as a reason for killing Worls that she was afraid that the jury trying- him might turn him loose. Her counsel interposed as a defense that she was insane at the time of the killing. The State introduced several jurors in the Worls case who testified that they had observed the appellant while she was on the witness stand in that case and expressed the opinion that she was sane. She was not on the witness stand over five minutes, and the jurors who testified in the instant case had no previous acquaintance with her upon which to base an opinion as to her sanity or insanity.

In a case note to 72 A. L. R. at page 579, it is said that the general rule is that nonexpert witnesses will not he permitted to express a general opinion as to sanity. They cannot give an opinion independent of the facts and circumstances within their own knowledge. They may detail the relevant facts known to them, and then express an opinion as to the sanity of the defendant. The author cites Arkansas cases which support the rule. Bolling v. State, 54 Ark. 588, 16 S. W. 658; Shaeffer v. State, 61 Ark. 241, 32 S. W. 679; Green v. State, 64 Ark. 523, 43 S. W. 973; Byrd v. State, 76 Ark. 286, 88 S. W. 974; Schuman v. State, 106 Ark. 362, 153 S. W. 611; Dewein v. State, 120 Ark. 302, 179 S. W. 346; Thurman v. State, 176 Ark. 88, 2 S. W. (2d) 50; Davis v. State, 182 Ark. 123, 30 S. W. (2d) 830.

In Shaeffer v. State, 61 Ark. 241, 32 S. W. 679, it was held that the nonexpert witnesses who testified as to the sanity of the defendant did not show that they were possessed of information sufficient to form an opinion entitled to be adduced as evidence. J. L. Moore, one of the witnesses, testified as follows: “I have seen the defendant for five or six years. During- that time I have seen him on the street very often. I have never had him work around me. From what I have seen of him during that time and have observed, I don’t think there is anything- wrong with him.” B. C. Black testified: “I have seen the defendant on the street for several years. I never noticed anything peculiar about him. From what I have seen of him, I never thought but that he was all right.”

In Hankins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918D, 784, it was held that the court erred in admitting- the testimony of nonexpert witnesses who gave their opinion as to the insanity of the accused without stating any facts upon which they based their opinion and without showing that they were qualified to express such an opinion by stating the facts upon which such opinion was based. In that case, the nonexpert witnesses had no intimate acquaintance or association with the defendant and were allowed to testify that they saw the defendant at a show on the night of the killing, and that there was nothing in his conduct to indicate that he was insane.

In State v. Von Kutzleben, 136 Iowa 89, 113 N. W. 484, it was held that it was not competent for the State to call nonexpert witnesses from the bystanders at a trial to express their judgment based alone on observation made during- the trial of the accused on the issue of his sanity.

In State v. Turner, 126 Maine 376, 138 Atl. 562, the court said: “We certainly know no jurisdiction in which the opinion of a lay witness as to the sanity of a man, whom he has seen less than twenty minutes, would be regarded as admissible.”

As we have just seen, the witnesses in the present case were jurors in the Worls case and had no previous acquaintance with, appellant. They had no reasonable opportunity to observe her acts and conduct except for a period of time not exceeding five minutes while she was a witness in the case of a man charged with killing her father. The nonexpert witnesses in the present case detailed no facts at all upon which they based their opinion, and the court erred in permitting them to testify as to the sanity or insanity of appellant whose legal accountability was the main matter in issue before the jury.

The next assignment of error is that the court erred in allowing Dr. Brown, an expert witness for the defendant, to be contradicted upon a collateral matter. As we have already seen, the defense was that appellant was insane at the time of the killing. Dr. Brown, the superintendent of the State Hospital for Nervous Diseases, was introduced as' an expert witness in her behalf, and, after reading the hypothetical question propounded to him, stated that in his opinion she was insane at the time of the killing. He'was cross-examined at length by counsel for the State, and in this connection we will state that much latitude should be allowed in the cross-examination of expert witnesses in order to test their credibility by eliciting knowledge of matters about which they give an opinion. Counsel for appellant, however, insisted that the error committed by the court was not in the cross-examination, but in allowing his testimony on the cross-examination to be contradicted by other testimony when the question'elicited on cross-examination was collateral to the main issue. Dr. Brown had testified that another person who had been committed to the State Hospital for Nervous Diseases from Lonoke County was insane, and that the court erred in permitting testimony to the effect that such person was sane. This evidence was given by a nonexpert witness who based his opinion upon an acquaintance of thirty years.

It is well settled, however, in this State that a party, who cross-examines a witness on collateral matters for the purpose of testing his credibility as a witness is bound by his answers and cannot contradict his testimony on a collateral issue. The reason for the rule is to avoid a multiplicity of issues which would tend to confuse and divert the minds of the jury from- the main issue. McAlister v. State, 99 Ark. 604, 139 S. W. 684; Peters v. State, 103 Ark. 119, 146 S. W. 491; and Williams v. State, 175 Ark. 752, 2 S. W. (2d) 36.

In the case last cited, the court said that the object of cross-examination in a collateral matter is to enable the jury to comprehend just what sort of person they are called upon to believe; but because the character of the witness is collateral to the main issue, which is the guilt or innocence of the defendant, the latter is bound by the answer of a witness on a collateral matter.

The reason for the rule would apply with just as much force in cases of contradiction of an expert witness as where an attempt is made to contradict a nonexpert witness on a collateral issue. It is only where the examining party is allowed to inquire about collateral acts that the opposing side will usually he allowed to' contradict the witness by evidence showing to the contrary. McArthur v. State, 59 Ark. 431, 27 S. W. 628; and Howell v. State, 141 Ark. 487, 217 S. W. 457.

The present case especially calls for the application of this settled rule of evidence, when we consider the expert witness was attempted to be contradicted by the testimony of the regular judge of the circuit court who was the principal witness for the State at the trial. We think that the special judge who tried the case committed error in allowing the introduction of evidence to contradict the answers given by'the expert witness in the cross-examination on collateral issues.

It is next insisted that the court erred in allowing the State to show on the cross-examination of appellant’s witnesses that her father had been convicted of murder in killing one Jed Wilsey and had been sentenced to the penitentiary for nine years therefor. The State attempts to justify this action on the ground that in the hypothetical question propounded to Dr. Brown the killing of Jed Wilsey by the father of appellant was treated as an undisputed fact, and that no prejudice resulted to appellant from the admission of the testimony. The 'State was permitted to ask on cross-examination several witnesses for the appellant if her father had not been convicted of the murder of Jed Wilsey and sentenced to nine years-in the penitentiary for the killing. In one instance Wilsey was referred to as an old man seventy years old. These questions were all asked before the appellant placed Dr. Brown on the stand and propounded the- hypothetical question to him. Later on in the trial the same questions with regard to the murder of Wilsey by the father of appellant were asked other witnesses for the State. The repeated and persistent question was such a departure from the legal methods in the introduction of evidence as in our opinion was calculated to prejudice the rights of appellant and call for a reversal of the judgment of conviction.

Counsel for appellant also complain that the court erred in refusing to give certain instructions asked by appellant. We do not deem it necessary to set out or comment on these instructions. We have carefully considered the instructions given by the court and are of the opinion that, they fully conform to the rule with regard to the defense of insanity laid down by this court in Bolling v. State, 54 Ark. 588, 16 S. W. 658; and Bell v. State, 120 Ark. 530, 180 S. W. 186.

For the errors indicated in the admission of evidence, the judgment will be reversed, and the cause will be remanded for a new trial.


author: Hart, C. J.,

text:
    Missouri Pacific Railroad Company v. Pennington.
    Opinion delivered July 13, 1931.

      R. E. Wiley and Henry Donham, for appellant.

      J. H. Loohadoo, for appellee.
   Hart, C. J.,

(after stating the facts).. This court has uniformly recognized that the operation of a railroad is a complicated business, and that it is necessary for the railroad company to make reasonable rules and regulations for its employees and to prescribe the duties which they are to perform. The court has also recognized that, like every other business, there are exigencies which are not anticipated and which require the employee to act for the immediate protection of his employer’s interest, and that he has implied authority to make a contract in such cases which is reasonably necessary to carry out his prescribed duties. St. L. I. M. & S. Ry. Co. v. Jones, 96 Ark. 558, 132 S. W. 636, 37 L. R. A. (N. S.) 418; Henry Quellmalz Lbr. & Mfg. Co. v. Hays, 173 Ark. 43, 291 S. W. 982; and Booth & Flynn v. Price, 183 Ark. 978, 39 S. W. (2d) 717.

There is nothing in the duties usually performed by a station agent which would lead to the conclusion tha,t he had authority to make a contract with a person to remove an automobile or other thing from the right-of-way of a railroad and to store it. In the present case, however, the situation, as shown by the undisputed evidence, was one with which the assistant station agent was suddenly confronted and which had a tendency to seriously interfere with-.- the traffic over the line of the defendant’s railroad, and to endanger the lives of passengers and train operatives. The assistant station agent had the authority to act in the place of the station agent during his absence and could make any contract which the station agent was authorized to do under the circumstances. The assistant station agent, as an agent of the defendant, had the implied authority to remove the wrecked automobile from the tracks of the defendant’s line of railroad so as not to endanger the lives of passengers and train operatives who might pass over the line of railroad at that place. It may be inferred from the evidence that the assistant station agent knew that Cargile, the owner of the automobile, had been injured in the wreck and had been removed from the scene thereof. The automobile had valuable parts which might be stripped from it if it was not protected. Under these circumstances, the assistant station agent had authority not only to engage the plaintiff to remove the wrecked automobile from the right-of-way of the defendant, but also to temporarily store it in his garage until the owner could be notified.

The evidence shows that the plaintiff soon after-wards notified Cargile that his automobile was stored in his garage, and Cargile told him that he would have nothing more to do with it. The plaintiff no longer had authority to keep the automobile in storage without a contract from an agent of the company who had express authority to make such a contract. He would only have been entitled to recover the cost of removing the wrecked car from the line of the company, his storage charges until he notified the owner of the car, who refused to take it, and the cost of removing the car from his garage to some junk pile in case the railroad refused to receive it. There was no testimony to warrant a verdict for $173 in favor of the plaintiff under the principles above announced. Therefore the judgment must be reversed, and the cause will be remanded for a new trial.