text:
    Arkansas Cotton Growers’ Cooperative Association v. Brown.
    Opinion delivered April 8, 1929.

      Earl B. Wiseman and Clayton ■& Cohn, for appellant.

      Coleman & Reeder, for appellee.
   Hart, C. J.,

(after stating the facts). The plaintiff asked for an instructed verdict, which was denied by the court, and the court submitted the case to the jury upon the question of fact whether or not the association obtained during the season the “best prices obtainable by it under market conditions.”

It is earnestly insisted by counsel for the plaintiff that there was no evidence upon which to submit such question of fact to the jury, and in this contention we think counsel are correct.

The articles of the association provide that it shall not have any capital stock, and it is organized for the purpose of protecting the producers of farm products from depreciation in the prices thereof by combination of large manufacturing corporations and speculators. Its object is to sell the raw product annually from time to time as there is a legitimate demand therefor, and, by the extension of credit to farmers, to enable them to collectively market their crops. Arkansas Cotton Growers’ Cooperative Association v. Brown, 168 Ark. 504, 270 S. W. 946, and McCauley v. Arkansas Rice Growers’ Cooperative Association, 171 Ark. 1155, 287 S. W. 419.

The contract under consideration in this case provides that the association shall pool all cotton of a like grade and staple delivered to it by its members, and that its classification shall be conclusive. The agreement provides that each pool shall be for a full season. Then it is provided that the association shall resell such cotton “at the best prices obtainable by it under market conditions.” This does not mean the best prices that could be obtained by it in any one day or on several different dates during’ the same season. Such a conclusion would tend to defeat the very purpose of the organization. The farmers are located all over the State, and each acting separately could not protect himself against speculators. To meet this condition and to enable the farmers to combine their resources, the Cooperative Marketing Association Act was passed, and the farmers were enabled to place their combined products in the hands of an association as a selling agent selected by them to the end that prices might be stabilized and that they might receive the worth of their crops. The association was given full power to sell the cotton of the same or different pools at such time or times as might be deemed to’ the best interest of the members.

It will be noted that the marketing agreement made the classification of the association conclusive upon the members, and provided that each pool should be for a full season. This made the judgment of the association in classifying and selling the cotton conclusive, except for fraud or gross mistake which would amount to fraud.

It would be destructive of the purposes of the association if it was compelled to account to the members for the highest price it could have obtained for the cotton on any particular day or days. In the very nature of things, no one could know what would be the highest market price obtainable, under such a construction of the contract, until after the cotton season was over. The cotton growers were associating themselves together as authorized by the act, and have signed agreements for marketing their cotton with the association, which had for its purposes the classifying and grading of the cotton, the selling of the same for the best market price obtainable, in the judgment of the officers of the association..

The association was allowed to advance funds to its members, and this of itself showed that it was intended that the cotton should be held and sold by the association when, in the judgment of the officers, the best price could be obtained. It is true that the defendant introduced witnesses that better prices could have been obtained upon several different dates during the cotton' season of the year 1925. There is nothing whatever to show that the officers of the association acted in bad faith in selling the cotton or that they acted in such a reckless or careless manner as to impeach the sale made by them.

The contract between the association and the members expressly provides for advances to the members, and if, by mistake, the association shall make an excess advance to any one member, it would be entitled to recover the excess from the member. In California Bean Growers’ Association v. Williams, 82 Cal. App. 434, 255 Pac. 751, it was held that a contract between a cooperative association and grower, expressly providing for advances to the grower and specifying that such advances might be deducted from remittances on sale of the crops, necessarily implies that the grower would reimburse the association for all such advances. See also Re Joseph Murphy Company, 214 Pa. 258, 63 Atl. 745. This prin-op^^the present case necessarily results from the con-The contract provides for advances by the agSQJHiatkaljataláts members, and this carries with it an jffifdi'^BaMseenie-fft - to pay back any excess advance. Hbi?2gA\ffi'dei!iffiesfii(!tlBof the present case, we are of the S?fe1ffiSPf'^Kí&ríiSt.dÍre0tÍIlg & V6rdiCt ^

-noo iípiaiiaááifo^p.^ti«Ln®É áknpssmgiiíhej appeal of the plaiistí.iffisiB.ü'tbeiéiFeuife'iícTOits? bmfaM^tfeatiebdibeMeaid. In thfé ífifdpteáfr9áfI)l35#Mt&fe^Wbeace Mm «e fcfwMsíf'We° mMOT WM 0f the peace and was not a dismissal for want of prosecution. The plaintiff appeared in court and asked for time to produce its witnesses. The court thought that the plaintiff had been negligent in not having its witnesses in court, and rendered judgment that the cause be dismissed for want of witnesses, and that the defendant be discharged with costs. The plaintiff appealed to the circuit court. When the case was carried by appeal to the circuit court, it was there for trial de novo on the merits, rather than for 'correction of errors committed by the justice of the peace. Hopkins v. Harper, 46 Ark. 252. As said in Martin v. State, 46 Ark. 38, when a case is carried by appeal to the circuit court it is there for trial on its merits, and technical objections to the forms of procedure in the lower court are futile.

Because the court erred in refusing to direct a verdict for the. plaintiff, the judgment must be reversed; and, inasmuch as the testimony of the defendant on the question whether the association sold the cotton ‘ ‘ at the best prices obtainable 'by it under market conditions” might be different on a retrial of the case, the cause will be remanded for a new trial.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Coe v. State.
    Opinion delivered April 8, 1929.

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

Fletcher Coe has appealed from a judgment of conviction against him for the statutory crime of keeping in his possession an unregistered still.

The first assignment of error is that the evidence is not legally sufficient to warrant the verdict. According to the evidence for the State, the sheriff and his posse, upon information, located a copper still in Miller County» Arkansas, about three o’clock in the morning, during the latter part of October, 19'27. The still was complete and ready for operation, but no one was at it. The officers hid, and remained near the still until after daylight. They saw the defendant and Fred Lolla approaching, with a horse upon which were two sacks of chops and a sack of sugar. Several barrels of mash were already at the still. They filled up the copper pot with mash, and lighted the gasoline burner with which the still was operated. After they had been working around the still for about forty-five mi-nutes, the officers arrested the defendant and Lolla. Whiskey was running out of the still at the time. The defendant and his companion claimed that they were out hunting cows, and came upon the still by chance, and so testified at the trial. The evidence for the State, if believed by the jury, was legally sufficient to warrant a'verdict of guilty. Lacefield v. State, 171 Ark. 655, 286 S. W. 818; Conley v. State, 176 Ark. 654, 3 S. W. (2d) 980; Miller and Gregson v. State, 171 Ark. 756, 286 S. W. 949; Vincent v. State, 171 Ark. 759, 286 S. W. 944; and Francis v. State, 177 Ark. 401, 7 S. W. (2d) 769.

The next assignment of error is that the court erred in refusing to instruct the jury that the testimony given against the defendant “must be of such a character as to exclude every reasonable hypothesis save his guilt.” The conviction did not rest upon circumstantial evidence. The testimony of the witnesses for the State was direct and positive as to the matters they saw. Hence the instruction requested was not predicated upon any facts proved at the trial, and the court properly refused to give it. Vincent v. State, 171 Ark. 759, 286 S. W. 944.

The next assignment of error is that the court refused to give an instruction asked by the defendant, to the effect that the mere presence of the defendant at the sitill should not he considered against him, unless other testimony connected him with the possession of the still. It was the theory of the defendant that he was out hunting cows, and came upon the still by chance, and did not have or keep it in his possession in violation of the statute. The court instructed the jury that, if it should find that the defendant was at the still by chance, and had nothing to do with the operation or nse of it, he would not be guilty. It was not error to refuse the instruction asked by the defendant when the same subject was covered by an instruction given by the court. Rosslot v. State, 162 Ark. 241, 258 S. W. 348; and Burns v. State, ante, p. 1.

We find no reversible error in the record, and the judgment must be affirmed.


author: Smith, J.

text:
    Lolla v. State.
    Opinion delivered April 8, 1929.

      J. D. Cook, for appellant.

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

This appeal is from a judgment sentencing appellant to a term in the penitentiary for unlawfully possessing a still. For the reversal of this judgment it is insisted that the testimony is not legally sufficient to sustain thé conviction; that the court erred in refusing to give certain instructions and in permitting the prosecuting attorney to make an improper and prejudicial argument.

As to the sufficiency of the testimony, it may he said that four officers testified that they were searching for a still, which they found about daylight. ' After finding the still, they watched until about nine a. m., when appellant and another man were seen coming to the still, leading a horse laden with sacks, which were later found to contain chops and sugar. Near the still were tubs, buckets and other equipment used in operating a still, and several barrels of mash ready to run were found. When the men arrived they began to carry water to the still and to fill the still with mash. There was a gasoline burner under the still, which they lighted, and began to cook the whiskey. After watching these operations for about forty-five minutes, they arrested the men, who made a futile attempt to escape. This testimony sufficiently supports the finding that appellant was in possession of the still. Conley v. State, 176 Ark. 654, 3 S. W. (2d) 980; Vincent v. State, 171 Ark. 759, 286 S. W. 944; Miller and Gregson v. State, 171 Ark. 756, 286 S. W. 949; Lacefield v. State, 171 Ark. 655, 286 S. W. 818; Day v. State, 170 Ark. 786, 281 S. W. 11; Davis v. State, 167 Ark. 472, 268 S. W. 853; Goodwin, v. State, 161 Ark. 266, 255 S. W. 1095; McGuffin v. State, 156 Ark. 392, 246 S. W. 478; Wright v. State, 155 Ark. 169, 244 S. W. 12; Ring v. State, 154 Ark. 250, 242 S. W. 561; Francis v. State, 177 Ark. 431, 7 S. W. (2d) 769; Coe v. State, ante, p. 344.

Appellant requested an instruction numbered 3, which the court refused to give, reading’ as follows:

“You are told that the State in this case depends upon circumstantial evidence for the conviction of the defendant, and in such cases you are told that the testimony given- against the defendant must be of such a character as to exclude every reasonable hypothesis save his guilt, and you are further told that, if it is as reasonable that the offense charged could have as well been committed by another as. by the defendant, you should find the reasonable dou'bt in favor of the defendant, and acquit him.”

No error was committed in refusing to give this instruction, as the 'State did not depend upon circumstantial evidence, and the jury was correctly charged as to the necessity of finding appellant guilty beyond a reasonable doubt before convicting him.

When appellant took the stand as a witness in his own behalf he was asked, on his cross-examination, if he had not entered a plea of guilty in the Federal court to an indictment based on his arrest as set out above, and he admitted that he had entered such a plea, and was given a sentence under Avhich he had served a term of five months and five days in prison. The prosecuting attorney, in his argument to the jury, referred to this testimony, and the court, upon . objection being made thereto, admonished the jury that the testimony could be considered only in passing on the credibility of appellant as a witness, and not as evidence of Ms guilt. The record is in some confusion, and counsel for appellant apparently acquiesced in this ruling. But, whether he did or not, no error was committed in the ruling made. Indeed, it was more favorable to appellant than he had a right to ask. The testimony of appellant touching his plea of guilty in the Federal court on the same charge was a circumstance which the jury had the right to consider, not only as affecting his credibility as a witness hut also as a circumstance tending to show his guilt of the offense here charged. His plea of guilty was in the nature of a declaration against interest, and was admissible as such. . Of course, he had the right to offer any explanation of this plea, just as he would to explain any other declaration against his interest tending to show his guilt of the offense charged against him. Any statement made by appellant in entering this plea would have 'been admissible against him, just as any other oral admission made elsewhere would have been.

In the case of McCarty v. Commonwealth, 254 S. W. 887, the Court of Appeals of Kentucky said: “That a plea of guilty in another case involving" the same facts is competent evidence against a defendant in a criminal case, is generally recognized (16 C. J. 630), and this court so held in Ehrlich v. Commonwealth, 125 Ky. 742, 102 S. W. 289, 31 Ky. Law Rep. 401, 10 L. R. A. (N. S.) 995, 128 Am. St. Rep. 69.” See also Addington v. Commonwealth, 254 S. W. 889; Thornsbury v. Commonwealth, 268 S. W. 342; Bibb v. State, 83 Ala. 84, 3 Sou. 711; Commonwealth v. Callahan, 108 Mass. 421.

Certain other assignments of error are argued, but they do not appear to require discussion, and, as no error appears, the judgment must be affirmed, and it is so ordered.


text:
    Inter-Southern Life Insurance Company v. Butts.
    Opinion delivered April 8, 1929.

      Sheffield, Walker & Coates, for appellant.

      W. G. Dimving, for appellee.
   Smith, J.

Appellee filed a complaint in which he alleged that the defendant insurance company had reissued a policy of insurance on the life of Sarah Medley, payable to her husband, James E. Medley, and, while said policy was in full force and effect, the beneficiary had murdered the insured, wherefore appellee, as administrator of the insured, brought suit to recover the amount of the policy.

The insurance company filed an answer, in which it denied that the beneficiary had unlawfully killed the insured or had forfeited his rights under the policy. It admitted that it was indebted to the beneficiary or to the estate of the insured in the amount of the policy. It was further alleged that "in no event can the estate of the said Sarah Medley (the insured) succeed to the funds in question until the rights of the said James E. Medley (the beneficiary) have been forfeited. The defendant further states that the said James E. Medley stands innocent of any wrongful acts whatsoever, and not until he is tried and convicted of the alleged offense and his rights adjudicated can the administrator of said estate, of Sarah Medley maintain an action on said policy of insurance.”

With the issues thus joined, appellee offered testimony to the effect that the beneficiary had unlawfully killed his wife, the insured, and there was' no contradiction of this testimony. Thereupon the court charged the jury, over appellant’s objection, if the fact were found that the beneficiary had unlawfully killed the insured, to find for the plaintiff. There was a verdict for the plaintiff, and judgment accordingly, from which is this appeal.

Public policy prohibits the beneficiary in an insurance policy, who unlawfully kills the insured, from receiving any benefit from his wrongful act. But this public policy does not exonerate the insurer from liability on the policy, as the reason for the rule is to prevent the wrongdoer from profiting by his wrongful act, and not to reheve the insurer from the liability it contracted to pay upon the death of the insured. If therefore the beneficiary unlawfully killed the insured, he forfeited his right to recover under the policy, and a right to sue arose in favor of the estate of the insured as if no beneficiary had been named in the policy. Mutual Benefit Health & Accident Assn. v. Tilley, 176 Ark. 525, 3 S. W. (2d) 320.

It is the opinion of the majority that the pleadings in the case tender no issue except that of the unlawful killing of the insured by the beneficiary; that the insurance company, had it desired so to do, might have assumed the attitude of an interpleader, rather than that of a defendant, by paying into court the amount of the policy and asking the court to adjudicate, for its protection, to whom the money should be paid. But, instead of so •doing, the insurer elected to litigate with the insured’s administrator the question whether the beneficiary had unlawfully killed the insured, and this issue was submitted to the jury, and is concluded by the verdict.

It is the opinion of the writer — in which Justices Kirby and Mehaeey concur — 'that the allegation that the beneficiary had forfeited his right to sue is in the nature of a condition precedent, and, that fact being denied, the necessary parties to adjudicate that question should have been brought before the court, and the beneficiary, who was such a party, was not brought into court. We, the minority, are therefore of the opinion that the judgment should be reversed, and the beneficiary made a party, to save the insurance company from .the possibility of having to pay this policy twice. Sections 1096 and 1101, C. & M. Digest; Choctaw, O. & G. R. R. Co. v. McConnell, 74 Ark. 54, 84 S. W. 1043.

The judgment of the circuit court is affirmed.


author: Humphreys, J.

text:
    Lewis v. Merchants' & Planters’ Bank.
    Opinion delivered April 8, 1929.

      DuLaney & Steel, for appellant.

      Shaver, Shaver & Williams, for appellee.
   Humphreys, J.

Appellant brought this suit in the circuit court of Little River County against appellee to recover $300 it paid but of his deposit in appellee’s bank, upon an alleged forged check payable to E. L. Broom-field. In addition to alleging that the check was a forgery, appellant alleged that he never received any statement of his account with reference thereto, and that, immediately after receiving information that the forged check had been charged to his account, he made demand that the amount be refunded to him, which demand was refused.

Appellee filed an answer, denying the material allegations of the complaint. The cause was submitted upon the pleadings, the testimony, and instructions of the court, which resulted in a verdict in favor of appellee, and a consequent judgment dismissing appellant’s complaint, from which is this appeal.

Appellant testified that he lived at Arkinda, Arkansas, a small village seven miles west of Foreman, where appellee operated a bank and where he did business; that on July 5,19‘27, appellee charged his account with a check for $300, purporting to have been issued by him to E. L. Broomfield, who was the postmaster at Arkinda; that he never issued or authorized the issuance of the check, and that same was a forgery; that he never received a statement from the. bank thereafter showing that it had paid said check; that, in December following, he was in Kansas visiting, and drew a small check on his account, which was dishonored, whereupon he immediately returned and called at appellee’s bank to ascertain why the check he had drawn while away had not been honored, when he was informed that his deposit had been consumed by the payment of other checks, including the $300 check in question; that he told appellee’s officials that the $300 check in question was a spurious or forged check, and demanded that the amount paid thereon out of his deposit be refunded to him, which request was refused.

The testimony introduced by appellee tended to prove that the $300 check in question was genuine, and that, on the first day of August, 1927, appellee mailed a statement of appellant’s account to him, to which was attached the $300 check in question, stamped “Paid and canceled,” and that it mailed a statement to him each month thereafter for several months, showing his balance; that there appeared upon each statement the following notice: “Please examine this statement upon receipt, and report at once if you find any difference, so that we may know definitely whether our books' agree with yours. If no error is reported in ten days, the account will be considered correct. All items are credited subject to final payment.”

There is nothing in the record in the way of testimony showing that appellee’s special attention was ever called to this notice or that he had ever read it. He had no education of consequence, and was an old man, being-past eighty-two years of age.

The cause was sent to the jury upon conflicting-theories reflected by instructions numbers 2 and 3, requested by appellee and given by the court over appellant’® several objections and exceptions. The instructions are as follows:

“2. You are further instructed that, even though you should find from the.evidence that the check was a forgery, you cannot find for the plaintiff if you should further find from the evidence that the defendant bank mailed a statement to the plaintiff of his account and inclosed therewith the cheek in 'Controversy, and that the plaintiff did not report any error or make any complaint of the correctness of the account sent him until more than ten days after the said account was sent him.
“3. You are further instructed that, if the defendant bank mailed to plaintiff a statement of his account and the check in controversy, and plaintiff waited more than ten days after receiving same before reporting any error or making any complaint to the bank of the correctness of the account, it would thereupon become an account stated.”

It will be observed that the duty was imposed upon appellant by instruction No. 2 to object to the statement within ten days after same was mailed to him, whereas it was made his duty by instruction No. 3 to enter an objection to the correctness thereof within ten days after receiving same. The conflict between the two instructions was misleading and prejudicial. Although the jury might have believed appellant never received the statement, yet they could have found against him under instruction No. 2 if he had not challenged the correctness of the statement within ten days after it was mailed to him.

Both instructions, however, were erroneous because they limited appellant’s right to object to the statement within ten days, whereas the law gave him a reasonable time within which to challenge the account after receiving same, and the jury might have found that ten days was not a reasonable time. Bank of Commerce v. Fairbank, 153 Ark. 61, 239 S. W. 387; Bank of Hatfield v. Clayton, 158 Ark. 119, 250 S. W. 347.

In the instant case appellant denied receiving the statements appellee claimed to have mailed him, and said that he informed appellee that the $300 check in question was a forgery as soon as he was told same had been cashed. His testimony, contradicting that of ap-pellee, made a question of disputed fact for determination by the jury under a correct declaration of law and under instructions that were not conflicting.

Appellant makes the contention that the court erred in excluding the testimony of A. O. Stewart and him-, self to the effect that, when they called at the bank to discuss the matter with its cashier, T. H. Duke, he told them that Broomfield had forged other checks on him, one of which was drawn against his account in the Citizens’ Bank. The court excluded this testimony, on the theory that they could only testify as to what Dulce knew. We think the court erred in thus limiting their testimony, as the only way they indicated that Duke had such knowledge was from his statement to them. We think his statement was admissible as tending to show that this particular check was a forgery and as a circumstance going to the credibility of Duke’s testimony to the effect that the check was genuine.

On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    Philpot v. Taylor.
    Opinion delivered April 8, 1929.

      Rowell & Alexander and Wooldridge & Wooldridge, for appellant.

      A. F. Triplett, for appellee.
   Humphreys, J.

This suit was brought by appellants against appellees to enjoin the commissioners of Paving District No. 104 of the city of Pine Bluff and Annexation No. 1 thereto from carrying ont agreements of date December 10, 1928, with J. P. McNulty, for the construction of the improvements therein at a total cost of $69,452.59, and with the Merchants’ & Planters’ Title &' Investment Company for the purchase of the bonds at $98.15, upon the ground, among others, that the agreements were illegal, and contrary to public policy.

The material allegations of the complaint were denied by appellees, and the cause proceeded to trial upon the issues joined and the testimony adduced by the parties, which resulted in a decree setting aside the agreement for the sale of the bonds to make the improvements in the original district, because one of the commissioners of the district was a director in the Merchants’ & Planters’ Title & Investment 'Company, but upholding the sale thereof in the annexation because none of the appellants were property owners in the annexation, and for that reason were without right to question the sale of the bonds to construct the improvement in the annexation, and in the dismissal of appellants’ complaint with reference to the agreement to construct the improvements in the annexation, for the same reason with reference to the construction of the improvement in the original district, because same was not illegal and against public policy.

Appellants have only appealed from the decree upholding the construction of the contract in the original Paving District No. 104, so we shall limit the substance of the statement of facts and our decision .to the matters involved on the appeal.

The facts reflected by the record are practically undisputed, and are substantially as follows:

Early in November, 1928, the commissioners of said district decided that they would let the construction work in the district to the lowest bidder, and that they would sell the bonds of the district to the highest bidder on the 26th day of November, 1928. Pursuant to a published notice to that effect, the commissioners met on the 26th day of November, 1928, and received bids for the construction work from three contractors, viz., J. P. Mc-Nulty, T. L. James & Company, Inc., and Philpot Construction Company. The total of each bid for the construction work in the original district, as well as the annexation thereto, was as follows:

J. P. McNulty.:.....$73,198.20'
James Construction Co. Inc... 71,960.34
Philpot Construction Co..._....: 69,745.64

After the bids were opened, the commissioners announced that they would not award the construction contract until after they had received • bids for the bonds. A number of bond bidders were present, who bid upon the bonds. The highest bid was made by the Simmons National Bank, its offer being 97.78 cents on the dollar. After the bidding ceased, the bond buyers and the contractors were requested to retire, in order that the commissioners might consider the bids for the construction work and bonds together. As they were leaving the room, the representative of the James Construction Company, Inc., stated to the commissioners that his construction company was controlled by a banking concern, and that, if it were awarded the contract at the price bid, it would also pay an increased price over the best bid for the bonds. The commissioners then went into executive session, and decided to accept the bid from his company on bonds on the condition stated by him, with the understanding* that each contractor who bid should have a like opportunity. The contractors were then called in and given the like opportunity to bid on the bonds on condition that they be given the construction work in the district at the price bid by him. T. L. James & Company, Inc., was called first, and offered 99.78 cents on the dollar for the bonds, provided the contract was awarded to it at its bid. J. P. McNulty was next called, and offered 103.78 cents on the dollar for the bonds, provided he should be awarded the work at the price he bid. C. E. Philpot, representing the Philpot Construction Company, was next called, but declined to entertain the proposition, stating that his hid- on the contract represented the cost of doing the work, and that he was a contractor, and not a bond bnyer. The commissioners then figured that, by accepting McNulty’s bid upon both the contract and bonds, the district would save $229.40 beyond the best separate offer on the bonds and contract, after which it called all the contractors and bond-buyers into the room, and announced that the contract would be awarded to McNulty upon his bid of $73,198.20, and that the bonds would be sold to him upon his bid of 103.78 cents on the dollar. On the 10th day of December thereafter the commissioners privately agreed with Mc-Nulty to release him from his bid of 103.78 cents on the dollar for the bonds on condition that he would reduce his bid to $69,452.59, which was $293.05 lower than the lowest bid at the public bidding on the 26th day of November, 1928, and on the same day agreed to sell the bonds to the Merchants’ & Planters’ Title & Investment Company for 98.15 cents on the dollar, which amounted to $229.40 more than the -Simmons National Bank’s bid publicly made on November 26, 1928. Fred Ingram, one of the commissioners, was a stockholder and director in the Merchants’ & Planters’ Title & Investment 'Company, with whom the commissioners contracted to sell the bonds at 98.15 cents on the dollar. Frank R. Allen, who was the engineer of the district, was a business partner of J. P. McNulty in the-sale of rock asphalt, which was a different kind of material from that to be used in the construction work in the district.

In the ease of Hopson v. Holmes, 108 Ark. 460, 158 S. W. 771, this court condemned the policy of letting contracts for public improvements upon any other basis than a money basis. 'It is apparent from the testimony detailed above that the award of the contract on the 26th day of November, 1928, to J. P. McNulty, was not on a money basis, but was hampered by a requirement to pay the highest price for bonds which were being sold to pay for the work. It would be contrary to sound public policy to adopt any other than a money basis for letting public work, as it would tend to keep bona fide contractors, not interested in bond purchases, from attending and bidding. In fact, in the instant case the lowest bidder for the work was eliminated from the bidding because not able to handle or purchase the bond issue.

Appellees contend, however, that, even though the award of the contract to J. P. McNulty, who was the highest bidder, was made because he indirectly accepted bonds in payment therefor by offering the highest price for same, was illegal, yet he was released from purchasing or taking bonds for the work, and a subsequent legal contract was made with him to do the work upon a money basis. It is true that on December 10, 1928, the commissioners released him from his bond bid and awarded the contract to him for $69,452.59, which was $'293.05 less than the lowest public bid on November 26, 1928, but at the same time, and as a part of the same transaction, a private agreement for the sale of the .bonds was made by the commissioners to the Merchants’ & Planters’ Title & Investment Company, in which Fred Ingram, one of the commissioners, was interested. This latter transaction on the 10th day of December cannot be reasonably separated from the first transaction on November 26. It is (conceded that the bond sale to the Merchants’ & Planters’ Title & Investment Company was void because Fred Ingram, one of the commissioners, was a director therein, so the net result is that a private agreement awarding the contract to J. P. McNulty was made, without any money to pay him. The transaction was contrary to public policy, and void throughout. Even though the latter transaction was not so interwoven with the first that there could be a reasonable separation of the two, yet it would be contrary to public policy for commissioners to let a contract, either privately or publicly, to a contractor whose business partner was the engineer of the district. The engineer of the district is practically the final arbiter in the settlement of all disputes, and it would be contrary to public policy to burden him with the temptation to favor his partner when such disputes should arise or to favor him in the grades of materials to be used and the character of workmanship to be done.

On account of the error indicated the decree is reversed, and the cause is remanded, with directions to enjoin thé commissioners from carrying out any contract made with J. P. McNulty with reference to construction work in the original district.


author: Kirby, J.

text:
    Offenhauser & Company v. Cupp.
    Opinion delivered April 8, 1929.

      Feasel & Steel, for appellant.

      J. G. Sain, for appellee.
   Kirby, J.

Tbe sole question for determination on this appeal is whether the contractor’s bond for the construction of a warehouse in the State of Texas is liable to the payment of the premium for employers’ liability insurance, required by the building contract to be carried for the owner by the contractor.

The contract for the construction of the building was made in Texas, where it was to be. performed, and expressly required the contractor to carry insurance during the progress of the work against loss or damage by fire, tornado, wind, etc., “and employers’ and public liability insurance,” * * * “the policies to be made payable to the owner and deposited with him,” etc. It also provided it should not become effective until the contractor should execute and deliver to the owner a sufficient bond, acceptable to him, in the sum of $33,000.

The bond was executed with the Union Indemnity Company, appellee, as surety, binding the contractor “to perform and fulfill all and each of the covenants, conditions and agreements as written and required in said contract, plans and specifications,” and provides “this bond is made for the use and benefit of all persons, partnerships, firms or corporations who may establish a lien against said warehouse for any material furnished or labor performed, for or on account of said contractor or any of his subcontractors, under the laws of the State of Texas now in force or hereafter enacted, and they and each of them are hereby made obligees hereunder the same as though their own proper names were written herein as such, and they and each of them may sue hereon.”

The appellant company brought this suit against the contractor and his surety for the premium conceded to be unpaid for the liability insurance policies issued, and recovered judgment against the contractor, who admitted liability, and, failing to recover against the surety under its denial of liability, brings this appeal from'an adverse judgment.

The building contract was made and to be performed in the State of Texas — was a Texas contract — and the bond expressly states it “is made for the use and benefit of all persons * * * who may establish a lien against said warehouse for any material furnished or labor performed, for or on account of said contractor, or any of his subcontractors, under the laws of the State of Texas now in force or hereafter enacted,” * * * and each of them are made obligees and given the right to sue thereon. J. R. Watkins Med. Co. v. Johnson, 129 Ark. 384, 196 S. W. 465; Wilson v. Todhunter, 137 Ark. 207, 207 S. W. 221; Parsel v. Barnes, 25 Ark. 26; Roberts v. Brown, 40 Ark. 423.

The nature, validity and interpretation of the contract and bond must therefore be governed by the laws of Texas, and the rights of the parties adjudicated by our courts as we understand they would be adjudicated by the courts of that State. Matthews v. Paine, 47 Ark. 54, 14 S. W. 463; Dodd v. Axle-Nut Sign Co., 126 Ark. 14, 189 S. W. 663; J. R. Watkins Medical Co. v. Johnson, supra; Bonner v. Stroud Brothers Gin Co., 172 Ark. 569, 289 S. W. 766.

In Hess v. Denman Lumber Co. (Tex. Civ. App. 218, S. W. 162), the statute (Acts 1915, p. 223, Vernon’s Ann. Civ. St. Supp. 1918, art. 5623A) requiring* the owner to take from the builder or contractor a bond conditioned as required therein for his own protection against liens and the payment of all subcontractors, mechanics, workmen and furnishers of material, was held void as an interference with the law of the liberty of contract. It can make no difference therefore that the bond was not conditioned in the terms of the invalid statute, and the sureties thereon could only be held liable to the payment of the claims covered by or included within its terms as written. The bond expressly provides it “is made for the use and benefit of all persons * * * who may establish a lien against said warehouse for any material furnished or labor performed for or on account of said contractor or any of his subcontractors, under the laws of the State of Texas,” all such being made obligees with the right to sue thereon. The owner, to whom the bond was made, is not sned for the unpaid premium due on the policies procured for his benefit issued and delivered to him, and no contention is made that a lien therefor was attempted to be established against the warehouse constructed. Our attention has not been called by counsel to, nor has 'our investigation discovered, any statute or decision of the courts of that State, of which we take judicial notice, giving a lien upon the building constructed to secure the payment of the-premium for the kind of insurance furnished herein, no lien therefor has been established against the warehouse, and the surety, being bound under the express terms of the bond to answer to all persons who may establish a lien against said warehouse for any material furnished or labor performed, could not be held to the payment thereunder of their non-lienable claim, as the court correctly held.

The judgment is affirmed.


text:
    Cabler v. Anderson.
    Opinion delivered April 8, 1929.

      Cleveland Cabler and Trieber & Lasley, for appellant.

      8. L. White, for appellee.
   Kirby, J.

It is urged that the claim, based upon the judgment, was barred by the ten-year statute of limitations, the judgment not having 'been properly revived, and'that the circuit court erred in holding otherwise and confirming the order of allowance thereof made by the probate court.

It is undisputed that the motion to revive the judgment was filed on January 31, 1927, in the Pulaski Chancery Court, wherein the decree was rendered on March 14,1917, and that the writ of scire facias was issued and served on the defendant, C. P. Waters, the same day. The motion was styled “L. C. Going, trustee for Euth Harold, plaintiff, v. C. P. Waters, defendant, No. 20957,” and both it and the writ recited the recovery of the judgment on the said day of its rendition for $2,400, the realization from the sale of the property foreclosed of $1,800 credited thereon, leaving a balance due and unsatisfied of $600, interest, etc. The defendant, C. P. Waters, was summoned to appear on February 21, 1927, and answer the premises and show cause why the judgment should not be revived against him and plaintiff have execution thereof. The order reviving the judgment was made on the return day of the writ, the said 21st day of February, 1927, reciting the recovery of the judgment, the realization of $1,800 from the sale of the property credited thereon, a balance of $600 due, the death of L. C. Going, the marriage of Euth Harold, her. name now being Euth Harold Anderson, the real party in interest, and the service of a summons on defendant, and his failure to appear or make answer. The original judgment was rendered after personal service upon the debtor, as was also the order of revival, and both the motion for revival and the writ served upon the defendant recited correctly the chancery record, Case No. 209'57, of the judgment sought to be revived.

Although it is true that the judgment revived was entered in favor of Miss Ruth Harold for the amount of it and for foreclosure of the lien by L. C. Going, as trustee, in the deed of trust given to secure the payment of the note to her, upon which this judgment was rendered, and while the motion to revive and the scire facias did not correctly recite the exact amount of the judgment entered for her, and recited a less 'balance after crediting the $1,800 realized from the foreclosure sale than was actually due, these were mere errors and irregularities not affecting the validity of the judgment of revival.

There was no attempt to show, nor any claim made then or now, that any other or different judgment, or more than the said one judgment, had been recovered by the plaintiff against the defendant by the party seeking the revival, the real party in interest, and the whole proceeding pointed to the judgment with such certainty as that it was impossible for the defendant, C. P. "Waters, to have been misled to his prejudice about the identity of the judgment sought to be revived.

The motion for revival was unnecessary, anyway, the writ of scire facias performing the double function of a declaration and a summons, and was not the institution of a new suit but the continuation of the old one, the object being not to procure a new judgment for the debt but. the extension of the judgment that had already been obtained. Greer v. State Bank, 10 Ark. 455; Calhoun v. Adams, 43 Ark. 238; Walstein v. Williams, 101 Ark. 404, 142 S. W. 834, 37 L. R. A. (N. S.) 1162.

The order of revival was made on the 21st day of February, 1927, within ten years from the rendition of the judgment, and the contention that the claim was barred is without merit Section 6316, C. & M. Digest.

No appeal was taken from the order of revival of the judgment, and as against a collateral attack, as this is. it cannot be avoided for mere error or irregularity— the objections urged amount to nothing more — and conclusively establishes the facts necessary to support it as against all persons properly made parties. Ward v. Sturdivant, 96 Ark. 434, 132 S. W. 204; 1. Freeman on Judgments, § 390.

We find no error in the record, and the judgment is affirmed.


author: Mehaffy, J.

text:
    Watts v. Watts.
    Opinion delivered April 8, 1929.

      Rowell & Alexander, for appellant.

      R. W. Wilson, for appellee.
   Mehaffy, J.

The appellee filed his complaint against the appellant in the Jefferson Chancery Court, asking for a divorce on the ground that his wife’s conduct toward him rendered his condition intolerable.

The appellant answered, alleging that a former suit between the same parties and involving the same subject matter had been tried in the Jefferson Chancery Court, decree rendered against C. Y. Watts, and an appeal taken by him to the Supreme Court, where said appeal was 'dismissed for non-compliance with Buie 9. Appellant alleged that the judgment in the former suit was a 'bar to the present suit. She also asked for attorney’s fee, court cost, and alimony.

After the evidence was all in and argument of counsel completed, the court took the matter under advisement, and thereafter the appellee filed a motion in open court, asking permission to take a nonsuit, which was granted by the court..

The following is the decree:

“Now on this day is presented the (motion filed herein 'by the defendant, and this cause is heard upon the motion of the defendant and the response thereto of the plaintiff, and upon the statement of facts therein set forth, and the court finds that on March 9, 1928, the case came on to be heard, all testimony introduced by both sides, argument by counsel for both sides completed, and, after the argument by counsel, the court stated that there was a proposition of laAV that he wanted to look up, and the following entry was made on the court’s private memoranda book: ‘The case heard and the court takes the case under advisement.’ On March 14, 1928, the notation on the court’s private memoranda book reads as follows: “it. W. Wilson, attorney for plaintiff, comes into open court and asks to take a nonsuit, and the court made the following notation on his private memoranda book: ‘Nonsuit taken by plaintiff.’
“That on the complaint appears the following notation: ‘Dismissed or nonsuited by plaintiff the 14th day of March, 1928. B. W. Wilson, attorney. ’ That no record was made by the judge on the chancery court docket and no order was signed or placed on the chancery record, and the court finds from the foregoing facts that the matter of permitting plaintiff to take a nonsuit is in the discretion of the court. It is therefore by the court considered, ordered and adjudged that the motion herein filed by the defendant be and the same is hereby overruled and dismissed. It is further ordered and adjudged that the plaintiff herein be and he is hereby entitled to a nonsuit.”

The appellant prosecutes the appeal to this court to reverse the decree of the chancellor, and she states: “This appeal involves the question of the right of the chancellor to grant a nonsuit in this ¡case after all the evidence in this case had been heard, the argument of counsel on both sides concluded, and the same submitted to the chancellor.”

The only question here, as stated by appellant, is whether the chancellor had a right to grant a nonsuit after all the evidence in the case had been taken, after the argument of counsel on both sides was concluded, and the case submitted to the chancellor.

While the plaintiff, after the case was finally submitted, had no absolute right to take a nonsuit or dismiss his action, it was in the discretion of the court to permit the plaintiff to recall the submission and dismiss without prejudice.

‘‘Where a case has been finally submitted, either to the chancellor or to the court sitting as a jury, but no judgment has been rendered, it is within the discretion of the court to permit the plaintiff to take a nonsuit, and, unless it appears that the court has abused its discretion, this court will not reverse.” St. L. S. W. Ry. Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S. W. 96, 9 R. C. L. 196, 21 C. J. 196; American Zylanite Co. v. Celluloid Manufacturing Co., 33 Fed. 809.

It is the contention of the appellant that the appel-lee dismissed his complaint in the chancery court in vacation, or dismissed it by writing on the complaint in the clerk’s office that plaintiff took a nonsuit. However, the decree of the court shows conclusively that the nonsuit was taken in open court by permission of the court.

“The court treated the agreement to submit the case as the final submission; and if this be right, still it was in the sound discretion of the court to permit a non-suit after final submission, and the court ought to do so when it is in the interest of justice and to enable the parties to obtain a fair trial, which cannot be obtained on the record, as it then stands. * * * It was an arbitrary exercise of discretion not to permit either thait the foundation be laid in that suit for the admission of the transcript or that a nonsuit he taken in order that the record in a. future suit might fairly present the rights of the parties.” Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89.

There is nothing- in the record in this case that shows the court abused its discretion. The testimony that was taken is not in the record; there is no way in which we can know the condition of the record at the time the nonsuit was taken; the record here simply shows that the testimony had been taken and the case had been argued by counsel on both sides and submitted to the court. After this was done, the plaintiff, in open court, asked permission to take a nonsuit, and the court granted the request. It was in his discretion to permit the nonsuit, and his ruling -will not be disturbed here, in the absence of a showing that the court abused its discretion. Ry. Co., 80 Iowa 314, 45 N. W. 545; Mullen v. Peck, 57 Iowa 430, 10 N. W. 829; Oppenheimer v. Elmore, 109 Iowa 196, 80 N. W. 307; Gassman v. Jarvis, 94 Fed. 603.

“Here, notwithstanding the court had indicated to the counsel for the plaintiff that the court did not think the proof sufficient to justify a recovery, counsel for plaintiff still had the right to ask permission to argue his client’s cause before the court; and there is nothing in the record to show that the court, if asked, would have denied him this right and privilege. If counsel had availed himself of this right and privilege, he might have been able to convince the court that its view of the testimony before hearing the argument of counsel was erroneous, and thus induced the court to find in favor of his client. Instead of taking this course, counsel for plaintiff elected to take a nonsuit, which he had the right to do. In cases at law, under a similar statute, it is held that a case is not finally submitted to the jury when the last word of a charge is read, and not until the jury are directed to retire and to enter upon a consideration of their verdict.” Mutual Benefit Health & Accident Assn. v. Tilley, 174 Ark. 932, 298 S. W. 215. See Bean v. Harris, 46 Iowa 118; Morrisey v. Chicago, etc.

The plaintiff, as we have said, has no absolute right to take a nonsuit after the cause has been finally submitted. But it is within the discretion of the court to permit plaintiff to withdraw the. submission and take a nonsuit, just as was done in this case. Before it is finally submitted, the plaintiff has an absolute right, to take a nonsuit. If there is a counterclaim or cross-complaint filed by the defendant, plaintiff is not thereby prevented from taking a nonsuit as to his complaint. The defendant, however, can still try the cause stated in his cross complaint, and plaintiff, although having dismissed his original suit, may defend against the cross-complaint. The permission of plaintiff to take a nonsuit does not prohibit the defendant from trying any cause of action set up in his cross-complaint.

It was within the discretion of the court not only to permit the plaintiff to take a nonsuit, but also to permit a trial on any cause of action alleged in defendant’s cross-complaint. Chalkley v. Henley, 178 Ark. 635, 12 S. W. (2d) 18.

“In the absence of statutes otherwise providing, jn an action tried by the court, it seems that plaintiff may dismiss after the court has announced its finding but before a note has been made thereof; but in such an action it is too late to move to dismiss after the court has announced its findings, under a statute providing that the motion ‘may’ be made at any time before the court has announced its findings, or under a statute permitting or requiring plaintiff to make his motion before such submission to the court. The announcement of its finding, within the meaning of this rule, does not occur where the court merely states that there was a lack of evidence necessary to sustain one branch of plaintiff’s case, or merely intimates what its decision or finding will be. ’ ’ 18 C. J.Í153.
“However, as we have said, plaintiff cannot dismiss or discontinue his action after an answer has been filed asking affirmative relief so as to interfere with the defendant’s rights under such plea. The dismissal by plaintiff is operative only as to his cause of action, and the defendant is still in court upon his cause of action in his counterclaim or cross-complaint, and he may demand a trial on his counterclaim or cross-complaint.” 18 C. J. 1160; Dillon v. Hawkins, 147 Ark. 1, 227 S. W. 758; Wiegel v. Road Imp. Dist. No. 1, Prairie County, 126 Ark. 31, 189 S. W. 178.

It is always within the discretion of the court to grant plaintiff permission to dismiss his cause of action at any time before judgment. Plaintiff has the right to dismiss his cause of action before trial, even after answer is filed. And, unless the defendant has a cross-complaint asking affirmative relief, he has no right to complain. A dismissal or nonsuit is at the cost of the plaintiff, and, unless defendant had filed a cross-complaint or a plea asking affirmative relief, he could get no more by trying the case than a dismissal at the cost of the plaintiff. He therefore could not be injured in any way by the court’s permission to plaintiff to take a nonsuit. If, however, defendant has filed a cross-complaint, the dismissal of plaintiff’s cause of action does not affect defendant’s right to a trial on his cross-complaint.

In the instant case,'however, there is no cross-complaint. It is true that the defendant in her answer asked for attorney’s fee, cost, and alimony. If she had been entitled to any of these items she would have had the right to trial as to them, notwithstanding plaintiff’s cause of action was dismissed. But it appears from the record that these issues were tried, and the court held that the defendant was not entitled to suit money, alimony, or attorney’s fee from plaintiff, because of the labor performed, money expended and buildings placed on defendant’s property by plaintiff, which has enhanced the value of said property, and also on account of defendant’s treatment of plaintiff.

But it is immaterial whether these issues were tried out or not. Defendant had the right, notwithstanding the dismissal by plaintiff of his cause of action, to try any cause of action stated in a counterclaim or cross-complaint.

There is nothing in this case to indicate that the court abused its discretion, and the decree of the chancellor is therefore affirmed.


author: Hart, C. J.,

text:
    Farmer v. Franklin County.
    Opinion delivered April 15, 1929.

      Starbird & Starbird, for appellant.

      R. S. Wilson and Linus A. Williams, for appellee.
   Hart, C. J.,

(after stating the facts). It is the settled rule in tins State that county courts act judicially in the allowance or disallowance of claims against the county. State use of Izard County v. Hinkle, 37 Ark. 532; Hutson v. State use of Hempstead County, 171 Ark. 1132, 287 S. W. 398; and Harriman National Bank v. Pope County, 173 Ark. 243, 292 S. W. 379.

The contract made with Farmer for road construction was one contract, and no claim was made by him for any amount due him until after he had performed the contract. He then presented his claim to the county court, which was allowed in the sum of $750. A warrant was issued to him for this amount, and paid. This was a final judgment. Appeals are allowed to the circuit- court from all final orders and judgments -of the county court, and on such appeals the circuit court proceeds to try such oases de novo as other oases at law. Section 2287 of Crawford & Moses’ Digest; and Marion County v. Estes, 79 Ark. 504, 96 S. W. 165.

When Farmer failed to appeal from the .judgment of allowance in his favor for $750 he lost his right to any further claim under the contract. It was not a case where separate allowances were due him, under different claims. The contract was an entire one, and the order and judgment of allowance in his favor for $750 operated as a dis-allowance of thfe 'balance of his claim, and he lost all rights thereafter by failing to appeal to the circuit court within the time prescribed by statute. The notation made by the county judge upon the second presentation of the claim did not amount to a final judgment in favor of Farmer. In Lilly v. Barron, 144 Ark. 422, 222 S. W. 712, where the court made a finding that plaintiff was entitled to a judgment, hut did not enter judgment therefor until a later date, it was held that the time of taking an appeal runs from the date of the entry of the judgment. No judgment was entered in favor of Farmer for the $150, nor was any judgment for that amount rendered. Hence there was nothing to appeal from, as far as the notation, “O. K. in the sum of $150, but no funds,” is concerned.

Farmer does not claim that this was an additional order of allowance, but relies upon the last claim filed by him in February, 1928. He bases his right to recover upon the presentation of this claim upon the fact that, on the original presentation of the claim, the county court did not intend to make a judgment of allowance but only intended to make a judgment authorizing the issuance of a warrant in his favor for $750. The record, however, shows that he presented his claim for the whole amount alleged to be due in the sum of $1,345. The county court made a judgment of allowance in his favor for $750, and, as above stated, this- operated as a. disallowance of his claim for the balance. Not having prosecuted any appeal from the .judgment of the county court, whicih. was a final one, the plaintiff is now barred of relief in the premises.

It follows that the judgment of the circuit court was correct, and must therefore he affirmed.


text:
    Citizens’ Investment Company v. Armer.
    Opinion delivered April 15, 1929.

      Powell, Smeacl & Knox, for appellant.

      Steimrt & Oliver, for appellee.
   Hart, C. J.,

(after stating the facts). The correct-

ness of the decree of the chancery court depends upon the construction to be placed upon that part‘of the deed from Alex Armer and his wife to Claude Armer which is copied in onr statement of facts and which need not be repeated here. That mineral deed was executed on the 23d day of June, 1922. At that time there was a mineral lease on the land in favor of Fred Mellor which had been executed by Alex Armer and his wife on the 17th day of June, 1922. By the terms of that lease it was to run for five years from the date thereof, or as long as oil or gas might be produced or saved from the land. The present suit was commenced on the 21st day of June, 1928. This was more than five years from the date of the execution of the mineral lease to Fred Mellor. The record shows that neither Fred Mellor nor his assignees ever drilled or explored the land for oil and gas. Thus, by the terms of the mineral lease, it expired five years from the date of its execution, which was on June 17, 1927.

It will be noted that the part of the deed under which appellees claim to own an undivided one-half interest in the oil and gas in the forty acres of land in question appears in the granting clause of the deed immediately before the habendum clause. In express terms it provides that, if the Mellor lease shall for any reason become forfeited or terminated, all future lease- interests and rentals on said land for oil, gas and mining privileges shall be owned jointly by Claude Armer and Alex Armer. It expressly provides that Claude Armer is to “own one-half portion of an interest in all oil, gas or other minerals in, under and upon said land, and that may be produced therefrom. ’ ’

It is the settled rule in this State that a deed must be construed according to the intention of the parties, ás manifested by the language -of the whole instrument; and it is our duty to give all parts of the deed such construction, if possible, as that they would stand together. Where there is a repugnancy between the granting and the habendum clauses, the former will control the latter. McDill v. Meyer, 94 Ark. 615, 128 S. W. 364; Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975; Mount Olive Stave Co.v. Handford, 112 Ark. 522, 166 S. W. 532; Georgia State Savings Ass’n. v. Dearing, 128 Ark. 149, 193 S. W. 512; Jackson v. Lady, 140 Ark. 512, 216 S. W. 505; Cummins Brothers v. Subiaco Coal Co., 150 Ark. 187, 233 S. W. 1075; Alexander v. Morris & Co., 168 Ark. 31, 270 S. W. 88; and Pelt v. Dockery, 176 Ark. 418, 3 S. W. (2d) 62.

In the present case there is no conflict between the granting and habendum clauses of the deed, and by the plain terms of the deed itself Claude Armer became entitled to one-half of the oil, gas and other minerals in said land after the lease by Alex Armer and his wife to Fred Mellor had expired on the 17th day of June, 1927. Claude Armer died intestate in Union County, Arkansas, where the land was situated, on the 24th day of September, 1926; and after Ms death his widow, Sallye A. Armer, and the other appellees, who were his children and sole heirs at law, became the owners of the said undivided one-half interest in the oil and gas in the forty acres of land described in the complaint. The conveyance made by Alex Armer to G-eorge M. LeCroy was made on the 18th day of April, 1927. This conveyance in no wise could affect the interests of appellees, which had become vested in them by a prior conveyance. On the 18th day of June, 1928, George M. LeCroy and his wife conveyed the land to the Citizens-’ Investment Company, a corporation. It could only acquire by said deed the rights of its grantor.

It follows that the rights of appellees to an undivided one-half interest in the oil and gas in said forty acres of land had become vested before the execution of the deed by Alex Armer to George M. LeCroy and the subsequent conveyance by George M. LeCroy and wife to the Citizens’ Investment Company. Therefore the decree of the chancery court quieting the title in appellees to an undivided one-half interest in the oil and gas in said forty acres of land was correct, and must be affirmed.


text:
    Love v. Hoff.
    Opinion delivered April 15, 1929.

      Sam T. Poe, Tom Poe and McDonald Poe, for appellant.

      Boyd Cypert and Tom F. Digby, for appellee.
   Smith, J.

The present appeal is a continuation of the case of Gonlee v. Love, 178 Ark. 23-8, 10 S. W. (2d) 372, and the facts Put of which the litigation arose are sufficiently recited in the opinion on the former appeal to make repetition unnecessary.

Upon the remand of the cause, as directed in the former opinion, application was made to the clerk of the Pulaski Circuit Court for an execution on the judgment rendered against the plaintiff and his sureties on the delivery bond in the replevin suit, this being the suit brought by the Oox-Ellis Lumber Company to recover possession of the car upon which the sheriff had levied the execution which had issued against the property of Cox, the defendant in the original suit in Yell County, for debt. It was in this replevin suit that adjudication was made that the automobile was not the property of the Cox-Ellis Lumber Company, but was the property of Cox, the defendant in the original suit, and it was also adjudged in the replevin suit that the value of the oar, which the replevin suit prevented the sheriff from selling under the execution in his hands, was $700. This value was, of course, fixed as of the date when the automobile was taken out of the sheriff’s hands.

The former appeal was from a judgment rendered in favor of Love, the original judgment creditor, for the amount of the depreciation in the value of the car during a period of about fourteen months, while the sheriff was deprived of its possession for the purpose of selling it. We reversed this judgment, and in so doing held that Love’s unly remedy was to enforce the .judgment he already had in the replevin suit by execution, and not by bringing a second suit against the sureties on the delivery bond. This was upon the theory that Conlee, the surety, by 'signing the delivery bond made himself a party to that suit and liable for any judgment rendered in that case covering the oar, the subject-matter o*f the replevin suit. That decision is the law of this case.

When the clerk of the circuit court refused to issue an execution for the collection of the judgment in the replevin suit, application for mandamus was made to the judge of the court to require the clerk to issue the execution. The petition for the writ of mandamus alleged the fact to be that Conlee had been called upon to perform the judgment in the replevin suit, and was advised that he could have the automobile by paying the judgment for its value in the replevin suit, but refused so to do. The prayer for the writ was denied, and this appeal is from that judgment.

Upon refusing to order the writ of mandamus, the judge filed an opinion, in which he gave as his reason for his order the fact that an execution had previously issued upon the judgment in the replevin suit, and that this execution had been returned by the sheriff as satisfied, the return of the sheriff being that, the car having come into his possession, he had levied thereon the alias execution which had issued out of the Yell Chancery Court, and had again advertised the car for sale under the authority of the alias execution. It was the theory of the learned circuit judge that, the possession of the car having been delivered to the sheriff, the judgment in the re-plevin suit was satisfied, and a second execution could not issue on this replevin .judgment.

It appears, however, from the allegations of the petition, that the execution under which the possession of the car was taken from the plaintiffs in the replevin suit was employed as a special writ to recover possession of the car, and, when so recovered, it was levied upon and sold under an alias general execution from the Yell Chancery Court. In his opinion the learned circuit judge recites that these facts were not before this court when the former opinion was handed down, but he was mistaken in this assumption; these’facts were before us.

In view of the former opinion in this case, the prayer of the petition for mandamus should have been granted. Trice v. People’s Loan & Inv. Co., 173 Ark. 1160, 293 S. W. 1037.

It is true, of course, that in replevin the delivery of the property is the primary object of the action, and that the value thereof is to be recovered in lieu of it as an alternative only in case a delivery cannot be had of the specific property. Trice v. People’s Loan & Inv. Co., supra. But the purpose of the execution which issued in the replevin suit here was not to recover possession of this automobile for the owner, but to recover it for the purpose of selling it as the property of the original judgment debtor, who was adjudged to be the owner. After the sheriff had levied upon the automobile as the property of the original judgment debtor, it was wrongfully taken from his possession, as was later adjudged, under the order of delivery in the replevin suit, and the authority so to do was conferred by the delivery bond which Conlee executed. There could have been no recovery in that case for the usable value of the automobile, as the plaintiff in the execution had no right to the use of the property until after the sale, and then only in the event that he became the purchaser. It was so expressly decided in the case of George v. Dardanelle Bank & Trust Co., 155 Ark. 167, 244 S. W. 25. But the plaintiff in the execution was entitled to have restored an automobile of undepreciated value. In other word's, the plaintiffs in the replevin suit had no right to use the automobile after obtaining possession of it under the order of delivery in that case, and, after destroying its value by using it, return a depreciated oar in satisfaction of the judgment, which fixed its value as of the time when it was wrongfully taken under the order of delivery.

The ‘ judgment of the court below will be reversed, and the cause remanded, with directions to order the clerk to issue the execution after crediting the $100 for which the automobile was sold.


text:
    State v. Dowd.
    Opinion delivered April 15, 1929.

      Hal L. Norwood, Attorney General, and Steve Car-rigan, for appellant.
   Humphreys, J.

Appellant was indicted in tlie circuit court of Miller County for the crime of assault with intent to kill by shooting W. E. Davis, a policeman, in Texarkana, on the 26th day of November, 19'28. On the trial of the cause he was convicted of an aggravated assault, and, as a punishment therefor, was adjudged to pay a fine of $50 and serve a term of thirty days in the county jail. An appeal has been duly prosecuted to this court by the State, to ascertain whether the trial court did not err in giving appellant’s requested instructions numbers 21 and 28, over its objection and exception. The instructions are as follows:

“21. You are instructed that an officer can make an arrest for a misdemeanor only when a warrant is placed in his hands, or without a warrant of arrest when the offense is committed in 'his presence; and, if acting under a warrant of arrest, shall give information thereof, and, if required, show the warrant. If you find from the evidence in this case that Davis and those who were acting with him attempted to arrest the defendant without a warrant of arrest, for a misdemeanor, which was not committed in his presence, then the said Davis and those acting with him were acting unlawfully, and the defendant had the right to resist the arrest, using no more force to prevent same than was reasonably necessary. But you are further told that the fact that Davis and those acting with him -attempted to arrest the defendant without -a warrant of arrest for a misdemeanor which was not committed in the presence of either of them, if you find they did so, did not justify the defendant in shooting Davis, unless you further find that the defendant honestly believed at the time, acting as a reasonably prudent person, without fault or carelessness on his part, that it was necessary to do so in order to prevent Davis from taking his life of doing him great bodily harm.”
“28. You are instructed that, if you find Davis and his party were seeking to arrest defendant for a misdemeanor not committed in tlie presence of some of them, and neither of them had a warrant for his arrest, then yon are instructed that they had no right to enter his home over his protest.”

The trial court gave the two instructions quoted above on the theory that the instant case was parallel in all material respects to the case of State v. Adams, 173 Ark. 713, 293 S. W. 19, in which the trial court erroneously refused to give said instructions, and for which error the judgment in the latter case was reversed by this court. In one very material feature the instant and the Adams cases are unlike. In the Adams case he was not engaged in the commission of any offense at the time the sheriff and his deputy entered the store. In the instant case, according to the undisputed testimony, ap-pellee was walking up and down on his porch with a gun, cursing and threatening to kill any one that came there, and said that he was just waiting for the policemen to come there so he could kill them. The policemen had gone to appellee’s home in response to ’phone calls informing them that appellee had abused and driven his family out of the home, and that he was terrorizing the neighborhood. He was drinking, and had not quieted down when the policemen arrived, and, during the attempt of Davis to reason with him, he walked inside the house and shot back at Davis, who remained on the porch, severely wounding him.

The requested instructions were proper declarations of law in the Adams case, because he was not engaged in the commission of a crime in the presence of the officers, after they arrived, for which they might arrest him, and because they had no warrant to arrest him for any crime committed before they arrived, but were improper declarations of law applicable to the facts of the instant case, because appellee was engaged in the commission of a crime in the presence of the officers after they arrived, for which they had^a right to arrest him without a warrant.

We agree with appellant that in the instant ease the trial court erred in giving the two instructions quoted, hut not for the reason assigned by appellant, that this court erred in ruling that said instructions should have been given in the Adams case. The reason, as stated above, that the instructions had no place and should not have been given in the instant case, is that appellee was engaged in the commission of a crime in the officers’ presence, for which they had a right to arrest him without a warrant. This court adheres to its decision in the ease of State v. Adams, supra, because the instructions referred to were proper declarations of the law applicable to the facts in that case.

This court cannot reverse and remand the case for a new trial on the State’s appeal, as appellee herein was acquitted of a felony and convicted of a misdemeanor punishable by imprisonment. We can go no further than to declare that the trial court erred in giving the two instructions referred to, over the objection and exception of appellant. State v. Binkley, 123 Ark. 240, 185 S. W. 279.


author: Kirby, J.,

text:
    Fredericktown Milling Company v. Rider.
    Opinion delivered April 15, 1929.

      A. B. Whitehead and Breiver & Craeraft, for appellant.

      W. G. Binning, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in striking out the testimony of its salesman of the information received about the ownership of the Southern Produce Company, upon inquiry from the First National Bank of Helena, and also that the undisputed testimony entitled it to a judgment for the amount of its claim.

In Herman Kahn Co. v. Bowden, 80 Ark. 30, 96 S. W. 129, 10 Ann. Cas. 132, this court said:

“A person who holds himself out as a partner of a firm is estopped to deny snch representation, not only as to those as to whom the representation was directly made, but as to all others who had knowledge of such holding out, and in reliance thereon sold goods to the firm, provided they exercised due diligence in ascertaining the facts. The cases go even further, and hold that, if one has knowledge that he is being held out to the world as a partner, and fails to contradict the report, he may become liable to those crediting the firm on that account. Campbell v. Hastings, 29 Ark. 513; Fletcher v. Pullen, 70 Md. 205, 14 Am. St. Rep. 355. It follows therefore, for much stronger reasons, that, if the party himself puts out the report that he is a partner, he will be liable to all those selling goods to the firm on the faith and credit of such report.”

The undisputed testimony shows, and appellee admits, that she signed the financial statements, reciting in one of them that she was the owner of the Southern Produce 'Company and in the other two that it was owned by herself and R. M. Rider; and, although it is true that she stated this was done without reading the statements and to help her husband in the business, it necessarily was a report put out by her that she was a partner in the business or owner of it, making her liable as such to those selling goods to the firm on the faith and credit of the report. These statements, it is true, were not made directly to appellant company, but it had knowledge thereof, of appellee’s holding herself out as a partner of the firm, and the salesman of appellant company stated that the goods were sold to appellee’s firm or company in reliance thereon, after he had made inquiry of the First National Bank about the rating and ownership of the Southern Produce Company, and upon .being told by its vice president, Mr. Faulkner, now deceased, that appellee, Mrs. R. M. Rider, was a partner in the company, and that it was a responsible concern. The court erred in striking out this testimony. Appellant had the right to show such inquiry made in ascertainment of the facts and the exercise of diligence in the matter; and, since he inquired of the bank and was given the information furnished by appellee, it could make no difference that the vice president of the bank, who supplied the information, had since died.

Instruction No. 3 was correct as requested, including the words stricken out by the court, but it was more favorable to appellant, as given, than it was entitled to, and could not have had any prejudicial effect, but for the erroneous rejection of the testimony relating to the inquiry made at the bank.

Instruction No. 4 should also have been given. The undisputed testimony shows that the amount sued for was the correct balance due for the flour sold, and the testimony is virtually undisputed that appellee put out the report that she was a partner in the Southern Produce Company; that plaintiff made diligent inquiry about the matter, and sold the goods to that company in reliance upon the representations contained in the report. Such being the case, the verdict was without substantial evidence to support it, and the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


text:
    Warmack v. Zingg.
    Opinion delivered April 15, 1929.

      H. B. McKenzie, for appellant.

      McRae <& Tompldns, for appellee.
   Mehaffy, J.

The appellant instituted this suit to partition an oil and gas lease on land described in the complaint and for an accounting on certain royalty interests from oil produced and sold by the appellee, ft. M. Zingg.

The defendant filed answer, denying all the material allegations in plaintiff’s complaint, except as to the royalty interests of appellant, and admitted that the defendant was due appellant $61.80. The court entered a decree finding in favor of the plaintiff against the defendant as to the royalty interests for $61.80 and costs, and dismissed the complaint for want of equity, in so far as the other relief asked was concerned. There are only two questions to be considered by this court. The first is whether there was a forfeiture of the lease, and the second, whether a judgment for all the costs should be against the defendant.

The first is purely a question of fact, and we deem it unnecessary to set out or call attention to the evidence, except that part of it relating to the forfeiture.

Fanny Kendrick testified that the rentals were paid regularly until the lease lapsed; the rentals were paid to Solberry McKinney, who was authorized in writing to collect same. Witness does not remember when the last rentals were paid to her, but it was before the lease was made to Warmack; that no rentals were paid to her after that time. Her portion of the rentals was a little more than $5. Witness never received the rentals due just prior to the lease to Warmack; it was never tendered to her. After the lease was made to Warmack, Warmack paid the rentals.

P. R. Warmack testified that fie took a. lease from Fanny Kendrick, dated February 1, 1924, and that, sis months or a year later, he sold it to J. B. Warmack, the appellant.

J. B. Warmack testified as to the purchase of the lease, and that he paid the rentals. The well had been drilled by Miss Zingg, which produced oil, but he did not know how much. Before he purchased the lease, he had been told that the Zingg lease was forfeited.

Solberry McKinney testified that the rental due December 1, 1923, was tendered to him on the first Sunday in February, and he refused to accept it because it was tendered two months after the time it was due; that he finally accepted it, and sent it to his sister, but she returned it; that Miss Zingg insisted on him accepting the money;.that he told her he had sent Fanny her part of it and that she did not accept it; that, after that time, he never sent any more money to his sister; that Miss Zingg had not settled with him for the royalty; that Miss Zingg paid him $20 on February 7, 1924; that was the only $20 she ever paid; she paid it in cash; that he had collected several payments, and turned the money over to his sister. He also testified that the family did not want Miss Zing’g to drill in the cemetery. Witness testified that the part of the money sent to his sister was returned, with the explanation that she had leased her interest to Warmack, and that she had never received any rental after that.

R. M. Zingg testified that she was the owner of the oil and gas lease in controversy, and that she tendered-the rental due a week or ten days before December 1, 1923. 'She tendered it to Solberry McKinney, and he refused to accept it. Later, she learned that the trouble was that they did not want any drilling in the cemetery, ‘ ‘ and he said if I would not drill in the cemetery he would accept the lease rental;” this was agreed upon, and the $20 was paid. She had always paid the rent to S. D. McKinney. There is a good deal of testimony about the cemetery and a controversy about the McKinneys not wanting any drilling done in the cemetery.

'The appellant insists on a reversal of the case on the ground that the lease had been forfeited, and states that as to whether the tender of rentals was made depends upon the testimony mainly of two witnesses, the defendant, Miss Zingg, and S. D. McKinney. It is undisputed that the rentals had been paid prior to this time to S. D. McKinney and accepted by him up to December 1,19'23. Miss Zingg testified that she tendered the rental a week or ten days before it was due; McKinney testified that the rental was not tendered to him until February 7, 1924. It is conceded by appellant that, under the testimony of these two witnesses alone, the court would probably be justified in saying that the plaintiff had not shown by a preponderance of the evidence that the lease had 'been forfeited; ibut it is contended that the facts and circumstances corroborate McKinney, and that the preponderance of the evidence shows that the lease was forfeited. The lease itself provided that if no well was commenced on said land on or before the 1st day of December, 1921, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessor, or to the lessor’s credit in the Bank of Waldo, at Waldo, Arkansas, or its successors, which shall continue as a depository regardless of change in ownership of said lands, the sum of 25 cents per acre, which shall operate as a rental and cover the privilege of deferring the commencement of a well for six months from said date. It is agreed that a tender to S. D. McKinney, if made before the time expired, would prevent a forfeiture. The lease itself provides that, if the lessee tenders or pays to the lessor, this would prevent a forfeiture, and the lessor had constituted S. D. McKinney her agent to collect, and he had collected up' to that time. Therefore, if the tender was made, as testified to by Miss Zingg, there was no forfeiture. If the tender was not made, as McKinney says it was not, then there was a forfeiture.

It is argued by the appellant that Miss Zingg had the choice of two alternatives; she could tender to the lessor, or to the Bank of Waldo; also, that she should have tendered to the hank, and thereby avoided any litigation or dispute. It is contended that her failure to do so under the circumstances is a circumstance which actually discredits her testimony. We do not agree with the appellant in this contention. She had been paying to McKinney all the time, and if she made the tender when she says she did, she had no reason to believe that it would not be accepted. We think the most natural and reasonable thing for her to do, if she made the tender as she claims, was to make it in the manner she did, because this was the way she had paid all prior rentals. The testimony shows that the McKinneys did not want any drilling done about the graves in the cemetery, and, whether there were any threats or not, the undisputed proof shows that there was some discussion about the drilling in the cemetery, 'and that Miss Zingg finally agreed not to drill in the cemetery, and that McKinney then accepted the rentals. McKinney and Miss Zingg went to Mr. Tompkins’ office, where she made an affidavit that she would not drill a well in their cemetery. This affidavit was prepared at Mr. Tompkins’ office, and McKinney then accepted the rental. Whether the drilling in the cemetery, or the fear that drilling" would be done in the cemetery, was the cause of his refusal to accept the rental, is a question of fact, but it evidently had something to do with it or they would not have gone to Mr. Tompkins’ office, where the affidavit was prepared, and thereafter accepted the rental.

It is also contended by the appellant that the fact that she took no precaution to get a witness other than herself is a 'circumstance discrediting Miss Zingg; but if her testimony is true, that is, if she made the tender before the time expired, there would be no reason for her to take any precaution or to have a witness present, because she had been paying to McKinney, and he had been accepting the rental up to this time, and it would he perfectly natural for her to go to the person to whom she had been paying the rentals and tender the money.

As to whether the tender was made, as testified to by the defendant, or was made after the time expired, as testified to by McKinney, is a question of fact, and we do not think the finding of the chancellor was against the preponderance of the evidence. The lease provides that she may tender the money either to the lessor or the Bank of Waldo. She had the absolute right to tender it at either place, and, if she tendered it and it was refused, then there was no forfeiture, although the money was not paid. She did all that the lease required her to do.

Appellant also contends that, even if the tender was made, as appellee claims, there is no proof that she ever paid any other rentals. This question, however, was not an issue in the court below, and appellant cannot raise that question here. Winfrey v. People’s Savings Bank, 176 Ark. 941, 5 S. W. (2d) 360; Jones v. Dowell, 176 Ark. 986, 4 S. W. (2d) 949; Burke Construction Co. v. Board of Imp. Dist. No. 20, 161 Ark. 433, 256 S. W. 850; Connelly v. Earl Frazier Special School Dist., 170 Ark. 135, 279 S. W. 13. Besides, as contended by appellee, instead of paying $10, the amount due at that time, $20 was paid, and we think the most reasonable conclusion which can be reached is that this $20 was for rentals. The chancery case will not be reversed by this court unless the chancellor’s finding is against the preponderance of the evidence. We have reached the conclusion that the finding and decree of the chancellor is supported by a preponderance of the evidence, and is therefore binding on this court. Skaggs v. Prince, 176 Ark. 1170; 5 S. W. (2d) 927; Wooten v. Wooten, 176 Ark. 1174, 5 S. W. (2d) 340; Manzie v. White, 161 Ark. 1, 255 S. W. 567; Webb v. Alma Cash Store, 160 Ark. 290, 254 S. W. 670; Griffin v. Eustace, 160 Ark. 508, 255 S. W. 12; Markle v. Fallin, 161 Ark. 504, 256 S. W. 841; Linker v. Rachel, 163 Ark. 426, 260 S. W. 440; McGowne v. Frisby, 163 Ark. 634, 260 S. W. 728; Young v. Knox, 165 Ark. 129, 263 S. W. 52; Griffin v. Whittaker, 167 Ark. 461, 268 S. W. 42.

The appellee contends that the court erred in adjudging costs against her after the date of the offer to confess judgment. Appellee, in her answer, offered to confess judgment for $61.80, and she relies on § 1343 of C. & M. Digest, and Sheppard v. Dudley, 132 Ark. 603, 201 S. W. 1112. In the case referred to the court said, quoting from Hunt on Tender:

“The statutory offer of a judgment must be for a specific sum independent of costs, and the costs accrued at the date of the offer; unless the statute provides that the offer shall carry costs, in which case the costs need not be mentioned. An offer of a judgment for a certain sum, without mentioning any costs, if not accepted, will not avail the defendant as a statutory offer. Our statute on this subject contains no provision in regard to costs.”

The section of C. & M. Digest relied on by appellees does not apply to equity cases, where the giving of costs, which are expenses pending suit, as allowed by .the court, is entirely discretionary. Jones v. Adkins, 170 Ark. 298, 280 S. W. 389; McCauley v. Ark. Rice Growers’ Cooperative Assn., 171 Ark. 1155, 287 S. W. 419; Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017; Driver v. J. T. Fargason Co., 174 Ark. 114, 295 S. W. 35; Union & Planters’ Bank & Trust Co. v. Pope, 176 Ark. 1023, 5 S. W. (2d) 330.

The chancery court takes into consideration all the circumstances of the particular case, the situation or conduct of the parties, and exercises its discretion with reference to costs, and, unless there is' an abuse of discretion, the awarding of costs of the chancery court will not be disturbed. We do not think the chancellor abused his discretion in this case.

We find no error, and the decree of the chancery court is affirmed.


author: McHaney, J.

text:
    National Equity Life Insurance Company v. Bourland.
    Opinion delivered April 15, 1929.

      Bullion S-Harrison and C. M. Buck, for appellant.

      Nelson & Cranoford, for appellee.
   McHaney, J.

On July 13, 1925, John G. Bourland, now deceased, applied to appellant for two policies of life insurance for $5,000 each, carrying an annual premium of $217.99 each. These policies were issued, and dated October 3, 1925, at the request of the insured, who desired the premium® to become due on that date. In order to cover the risk between July 13 and October 3, appellant issued, to be attached to each policy, its “preliminary term insurance rider,” reading as follows:

“In consideration of the request contained in the application for this policy, and the payment of $2.77 (two dollars and 77/100), same being the preliminary term rate for three and one-third months ’ yearly renewable term life insurance, the annual premium date of said policy is hereby changed from the 13th day of July, 1925, being the date of the application for this policy, to the 3rd day of October, and annually thereafter until maturity, and said policy No. 2070 is by this preliminary term insurance rider now placed in effect for $1,000. ’ ’

A like rider was attacked to policy 2071, being the other policy issued at the time.- The insured executed and delivered to the agent of appellant his notes for the total amount of the premium on both policies and the preliminary term insurance, due October 1, which notes were forwarded to appellant by the agent. Prior to the due date of these notes, on September 28, 1925, the insured wrote appellant, -advising it of his inability to pay the notes when due, requesting that the notes be returned to the agent, and that he be permitted to pay the premium in quarterly installments “of $57.77 on each policy, together with the $5.54 additional premium to October 3, on the term rate.” His request was complied with by appellant, and on the 3d day -of October, 1925, the insured executed and delivered to appellant the following written request as to each policy: “I hereby request that the annual premium of $217.99 be changed to a quarterly premium -of $57.77, to be paid in advance on October 3, January 3, April 3, and July 3 of each policy year. The payment of any installment shall not maintain the policy in force beyond the time the next installment becomes due. This request, when accepted by the company, is to be filed with the original application, and to continue in force until changed by agreement.”

Shortly thereafter the insured paid the quarterly premium on each policy due October 3, in the sum of $57.77 each, and the preliminary term premium on both policies, amounting to $5.54, which paid the premiums to January 3,19‘26. Under date of November 3, when these policies had “been in force just one month today” as stated by the insured in his letter to the company, he requested appellant to cancel one of the policies and apply the premium already paid on it to the payment of the quarterly premium thereafter to become due on the other, which appellant did by canceling policy 2071 and giving him credit on policy 2070 for the full quarter’s premium, although 2071 had been in force for one month. The effect of this was to pay the premium on policy 2070 until April 3. On that date the next quarterly premium became due on policy 2070, and although the insured was frequently notified regarding the due date, and thereafter, during the thirty' da3rs of grace allowed in which to pay the premium, due April 3, he was several times warned that, if he failed to pay the premium by May 3, the policy would' lapse, he neglected to pay same, and died on May 17.

Appellees, who are the beneficiaries in this policy, demanded payment of the $1,000 due under the policy if death occurred during the first year, which was refused, and this suit followed. The case was tried to the court sitting as a jury, and it found that, under the terms of the policy, “there are conflicting statements as to the length of time the premium on the policy had been paid, one statement saying the amount paid was the premium for three and a third months, the other saying that it was the premium to the 3d day of October, 1925.” On that account the court held that the policy must be construed most strongly against appellant and in favor of the insured, and that the effect of the clause in the preliminary term insurance rider, that the $2.77 paid, “being the preliminary term rate for three and one-third months,” carried the preliminary term insurance until October 23, and that the quarterly premium date® began at that time, which would have made the premium paid carry the policy to April 23, and that the thirty days of grace allowed to pay the April premium would keep the policy in force beyond the date of the death of the insured. Accordingly judgment was rendered against appellant for $1,000, penalties, and attorney’s fee.

Clearly the court erred in its findings of fact and conclusions of law. Appellant requested the court to declare that, under the facts in this case, the policy sued on lapsed on the 3d day of May, 1926, for failure to pay the premium due thereon on the 3d day of April, and that, under the facts and the law, there could be no recovery. The court should have so found. It is true that contracts of insurance -will be construed most strictly against the insurer, and that, where there are conflicting provisions in the policy, the one most favorable to the insured will be given effect. Here, however, both parties to the contract understood that the preliminary term insurance from July 13 to October 3 was for two and two-thirds months, and until October 3 only, at which time the regular premium on the policy became due. The secretary of the company testified that the $2.77 mentioned in the rider was the preliminary term rate for two and two-thirds months instead of three and one-third months, as mentioned in the rider, and that the mention of three and one-third months in the rider was a mere error in writing the rider. The rider itself says that the preliminary term insurance is only paid from the 13th day of July to the 3d day of October, 1925, and the letter of the insured, heretofore quoted, dated September 28, 1925, to the company, specifically stated that the $5.54, being the amount due on both policies for the preliminary term insurance, paid the preliminary term insurance to October 3 only. So it will be seen that both parties have given the same construction to the contract.

It is clearly manifest that both parties intended that the preliminary term, insurance began on July 13 and terminated October 3, and it is a well established principle of law that, in the interpretation or construction of contracts, the construction the parties themselves have placed on the contract is entitled to great weight, and will generally be adopted by the courts in giving effect to its provisions. This is especially true in case of ambiguity in the written contract. Two of our recent cases to this effect are: Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. (2d) 673, and Webster v. Telle, 176 Ark. 1149, 6 S. W. (2d) 28.

The insured in his lifetime never, at any time, questioned the correctness of the quarterly premium dates', of which he was frequently notified by appellant, but, on the contrary, himself affirmatively stated that the amount be paid on the preliminary term insurance carried it only to October 3. The policy having lapsed on May 3 for failure to pay the premium due April 3, there was no liability, and there can be no recovery.

The judgment will be accordingly reversed, and the. case dismissed.