text:
    Union Sawmill Company v. Pace, Campbell & Davis.
    Opinion delivered April 14, 1924.
    1. Attorney and client — when lien attaches. — The lien of an attorney on his client’s cause of action attaches, under Crawford & Moses’ Dig., § 628, when complaint is filed and summons issued; the' term “commencement of an action,” employed therein, being defined by § 1049, Id.

      2. Attorney and- client — attaching op lien — due process. — Crawford & Moses’ Dig., § 628, giving attorneys a lien on their client’s cause of action from the time complaint is filed and summons issued, does not deny due process, since the filing of complaint and issuance of summons thereon constitute constructive notice; as it is only where property is taken without any notice, actual or constructive, • that the taking offends against the constitutional provision.
    Appeal from Union -Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Buzbee, Pugh £ Harrison and A. 8. Buzbee, for appellant.
    The mere fact that suit was instituted and summons issued, was not sufficient. It is evident that the Legislature intended that summons be served and notice given the defendant before the lien would attach. Section 1196, C. & M. Digest; 165 S. W. 715; 30 S. É. 745; 70 S. E. 1101.

      Pace, Campbell ■£ Davis, for appellee.
    The compensation of an attorney -or counsellor at law for his services is governed by agreement, express or implied, which is not restrained by law. Section 628, C. & M. Digest- A civil action is commenced by filing’ in the office of the proper court a complaint and causing a summons to be issued thereon. Section 1049, C. & M. Digest; 138 Ark. 10; 104 Ark. 627; 57 Ark. 459; 57 Ark. 229.
   Humphreys, J.

This is an appeal from a judgment rendered in the circuit court of Union County in favor of appellees against appellant for $750. The case was submitted and tried upon the following stipulation:

“Comes the plaintiff, E. L. Garner, by his attorneys, Pace, Campbell & Davis, and also come the interveners, Frank Pace, T. W. Campbell and Wallace Davis, in tbeir own proper persons, and comes tbe defendant, Union Savraiill Company, by its attorneys, Buzbee, Pugh & Harrison, and said, parties waive a jury and agree to submit this case to tbe court upon tbe pleadings and following statement of facts:
“On June 22, 1922, plaintiff, E. L. Grarner, entered into a contract in writing with tbe interveners, Pace, Campbell & Davis, in wbicb plaintiff employed interveners to bring and prosecute for bim a suit for damages against tbe defendant, Union Sawmill Company, growing out of personal injuries suffered by tbe plaintiff on or about tbe 17th day of April, 1922, wbicb injuries are more particularly described in tbe complaint in tbis cause, by tbe terms of wbicb contract said attorneys were to receive a contingent fee of one-half of whatever amount of damages that might be recovered or received by tbe plaintiff, whether by litigation or compromise. A copy of said contract is hereto attached, marked exhibit ‘A.’
“That, pursuant to said contract, interveners, Pace, Campbell & Davis, on June 30,1922, prepared a complaint for tbe plaintiff in tbis cause, and on July 3, 1922, said interveners filed said complaint in tbe office of tbe circuit clerk of Union County, Arkansas, and that summons was duly issued thereon on July 3, 1922, by said clerk, and said summons on said date was duly delivered to tbe sheriff of Union County, Arkansas, for prompt service upon tbe defendant, Union Sawmill Company; that without fault or hindrance on the part of the plaintiff or interveners, but solely by oversight of said sheriff, said summons was not served on tbe defendant until July 24, 1922, on wbicb date it was duly served.
“That the defendant, Union Sawmill Company, without actual knowledge that suit bad been brought by the plaintiff against it or that any suit was pending against it by tbe plaintiff, but with actual knowledge that interveners bad been employed by tbe plaintiff to bring and prosecute a suit for him against defendant under tbe contract aforesaid, on July 19, 1922, effected a compromise settlement with, the plaintiff for his claims against it growing ont of the personal injuries suffered by the plaintiff on the 17th day of April, 1922, including any claim for workmen’s collective insurance under any policy of such insurance that might be carried by the defendant with the Union Indemnity Company for the benefit of its employees; and defendant, in consideration of said compromise settlement on the 19th day of July, 1922, paid to the plaintiff, E. L. Garner, the sum of fifteen hundred dollars ($1,500), and said plaintiff then and there executed to the defendant a full release in writing of his said claims, a copy of which is attached hereto, marked exhibit B.’
“That interveners have not received nor been paid anything whatsoever upon their said contingent fee, and that said compromise settlement between plaintiff and defendant was made without the knowledge or consent of interveners, or any of them.”

This appeal involves the construction of § 628 of Crawford & Moses’ Digest relating to a lien of an attorney or counsellor upon his client’s cause of action, and the particular question presented for determination is whether the lien attaches upon the issuance of the summons or upon the service thereof. Appellant’s contention is “that the lien contemplated in this statute does not attach, in so far as appellant is concerned, and that this statute does not defeat the right of one to make settlement with a claimant of damages against him, free from any claim of claimant’s attorneys, until the service of summons in an action is brought upon the claim.”

When the statute involved was enacted the time at which a civil action should be regarded as commenced had been fixed by statute and determined by this court to be when a complaint was filed and a summons was issued thereon in the office of the clerk of the proper court. Section 1049. Crawford & Moses’ Digest: Burleson v. McDermott, 57 Ark. 229; Railway Co. v. Shelton, 57 Ark. 459; Barker v. Cunningham, 104 Ark. 627; K. C. S. R. Co. v. Akin, 138 Ark. 10. We think there can be no doubt that the Legislature, in the enactment of § 628 of Crawford & Moses’ Digest, used the particular language, “from the commencement of an action or special proceeding” in the sense defined by § 1049, Crawford & Moses’ Digest, as interpreted in the cases cited above.

Section 1049 of Crawford & Moses’ Digest is broad and applies without exception to all kinds of civil cases.

Appellant suggests that this section should be confined in its application to cases involving a statute of limitations. It is true that the cases in which said § 1049 has been involved pertain to questions of limitation and lis pendens. There is nothing, however, in any of the cases or in the language of the statute indicating that the construction given the statute in these cases would not also apply in other classes of cases.

Appellant also suggests that to construe the lien as attaching before the summons is served would amount to taking property without due process of law. We think not, for the filing of the complaint in the clerk’s office and the issuance of summons thereon constituted constructive notice. It is only when property is taken without any notice, actual or constructive, that the taking offends against the due process clause of the Constitution.

Appellant also suggests that, if the statute is construed so as to give a lien to an attorney on his client’s cause of action before the service of a summons, it would necessitate a search of the records in every county where the defendant might be sued before he would be protected in compromising a cause of action with a claimant. .This may be s'o, but it is one of the 'burdens placed by statute upon a defendant in order to protect an attorney or counsellor of a client to whom he has contracted his services.

Appellant also suggests that the Legislature must have intended that a lien should attach when a summons was served and not before, because it was provided in § 628 of Crawford & Moses’ Digest that an attorney’s lien should not attach to a counterclaim in an answer until service of the answer. It was within the exclusive province of the Legislature to make a distinction as to when attorneys’ liens would attach to different causes ■of action, and whether it should attach to* all causes of action at the same time. There is no ambiguity in the language making a distinction as to when the lien would attach upon actions or special proceedings and upon a counterclaim contained in an answer. It was to attach upon an action or special proceeding when commenced, and upon a counterclaim contained in an answer upon the service of the answer.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J. McCulloch, C.J.,

license: Public Domain

text:
    Road Improvement District No. 1. v. McAlpin.
    Opinion delivered April 14, 1924.
    1. Eminent domain. — damages for taking roadway — limitation.— Under Crawford & Moses’ Dig., § 5412%, authorizing commissioners of a road improvement district to condemn land in accordance with § 5249, which requires the landowner to file his claim for damages in the county court within twelve months, the owner, though entitled to require assessment of the damages by a jury in the circuit court, on his failure to so elect, is barred from recovery of damages resulting from appropriation of his land, claim for which was not made within twelve months from the time the commissioners commenced condemnation proceedings.
    2. Eminent domain — opening highways in cities and towns.— The Legislature may select another agency than the town council to open highways .through private property in cities and incorporated towns.
    S. Municipal corporations — liability for acts of officers.. — An incorporated town cannot be mulcted in damages for the unauthorized acts of its marshal or official in removing a fence and cutting a levee, thereby flooding plaintiff’s land in rainy seasons.
    Appeal from Clark Circuit Court; J. II. McCollum, Judge;
    reversed.

      W. E. Haynie and McMillan £ McMillan, for appellant.

      Callaway £ Callaway, for appellee.
   Humphreys, J.

Appellee instituted this suit, 'on the first day of February, 192'2, against appellants in the circuit court of Clark County to recover damages in the sum of $1,500 alleged to have been spent by him in the construction of the highway through the town of Gurdon. It is alleged that in January, 1920, the marshal of the town of Gurdon moved the fence back twenty-five feet on the side of a ten-acre tract of land owned by him in said town; that said town cut a levee near his land that caused it to overflow in rainy seasons; that in April or May, 1920, appellants appropriated a strip of land and caused dirt and gravel to be hauled therefrom, which left a trench along the entire length thereof in which water stands almost continuously, causing an unhealthy condition and damaging the adjoining lands for rental purposes, as well as obstructing the entrance thereto.

Appellants filed separate answers denying the material allegations of the complaint, and interposed the further defense that the action was barred because appellee failed to present his claim to the county court of said county within twelve months after said court condemned a right-of-way across his land for road purposes.

The cause was submitted upon the pleadings, testimony, and instructions of' the court, which resulted in verdicts and consequent judgments against Road Improvement District No. 1 for $175 and against the town of Gurdon for $200, from which an appeal has been duly prosecuted to this court.

The record reflects that Road Improvement District No. 1 of Clark County was organized under the act of the General Assembly of 1915 (§§ 5399-5462 inclusive, Crawford & Moses’ Digest), and on its application to the county court of said county under § 36 of said act (§ 5412%, Crawford & Moses’ Digest), the court made and entered an order on the 28th day of October, 1919, condemning a right-of-way sixty-five feet wide over and across the ten-acre tract in Gurdon belonging to appellee for the road it was constructing; that, after the order was made, the marshal of the town of Gurdon moved appellee’s fence back twenty-five feet; that appellant cut a horrow-pit eighteen feet wide and about two and one-half feet deep on said strip of land to obtain dirt with which to grade the road, that held water most of the time; that the borrow-pit came to within one hundred and fifty-feet of the rent-house upon the land, which had the effect of creating an unhealthy condition and which obstructed the direct entrance to the house and the land upon.which same was situated; that, some time during the year, an official of said town cut a levee which was built to protect an adjoining tract of land, so as to permit water to escape and overflow appellee’s land in rainy seasons.

Appellants contend for a reversal of the judgment upon several g’rounds, among them, that the action for damages was barred when this suit was instituted. The road improvement district proceeded under § 5412% of Crawford & Moses’ Digest to condemn the right-of-way for the road it was constructing. That section adopted the procedure specified in § 5249 of Crawford & .Moses’ Digest for taking private property for public purposes. Said section 5249 reads, in part, as follows:

“If the owner of tire land over which any road shall hereafter be so laid out by the court shall refuse to give a right-of-way therefor, or to agree upon the damages therefor, then .such owner shall have the right to present his claim to the county court, duly verified, for such damages as he may claim by reason of said road being laid out on his land; and if he is not satisfied with the amount allowed him by the court, he shall have the right of appeal as now provided by law from judgments of the county court; provided, however, no claim shall be presented for such damages after twelve months from the date of the order laying out or changing any road.”

It will be observed that, under this section of the statute, appellee had twelve months after the order was made condemning the land to present his claim for damages to the county court, which he failed to do. The statute in so many words precludes the landowner from presenting a claim for damages after the lapse of twelve months from the date of the order. The act contains ample provision for a hearing as to compensation for damages sustained by the property owner, so said this court in Sloan v. Lawrence County, 134 Ark. 121. Appellee contends, however, that he was entitled, to bring this suit under § 5417 of Crawford & Moses’ Digest, and, in support of the contention, cites the' case of Road Improvement Dist. No. 6 of Lawrence County v. Hall, 140 Ark. 241. In the Hall case the road improvement district commenced its suit under said § 5417 and the court refused to allow it to dismiss the action, oyer the protest of Hall, and proceed under said § 5412%. It is true that in the Hall case this court held that % 5412% and 5417 should ¡be' read together, and, when so read, that they allowed the landowner the right to elect under which section the road district should proceed to condemn the land, but it was not ruled that the landowner might delay his election' until the district had condemned the land under one of the sections, and then insist that it should afterwards condemn it under the other. The election, of course, must be made in apt time. In the instant ease the district proceeded under said § 5412%, without objection, and more than two years thereafter appellee instituted this suit. When the district commenced the condemnation proceeding under § 5412% appellee was put to the election whether he would present his claim to the county court within the time prescribed in the statute, or whether he would demand an assessment of his damages by a jury in the circuit court. Having failed to make the. election and the time limit having expired, his cause. of action was barred before the institution of this suit, for all damages resulting from the appropriation of’ the land. It is immaterial that appellee’s land is within the incorporated town of Gfurdon. The Legislature, by virtue of its reserved authority, may select another agency than the city council to open highways through private property in incorporated towns and cities. Bulloch v. Dermott-Collins Rd. Imp. Dist., 155 Ark. 176.

When all the testimony had been introduced, • appellee abandoned his claim for damages against the town of Gurdon except for those resulting from moving his fence and cutting the levee. Relative to damag’es flowing from those alleged acts he requested and obtained the following instruction to the jury:

“You are instructed that, if you find from a preponderance of the evidence that the authorities of the town of Gurdon moved plaintiff’s fence, or cut a levee which allows water to overflow on plaintiff’s land, and that plaintiff’s land has been damaged or decreased in value by the aforesaid acts, you will find for the plaintiff against the town of Gurdon. ’ ’

We are unable to discover any evidence in the record showing that the fence was moved or levee cut by authority of the town of Gurdon. It appears that the fence was moved by the town marshal, and that some official cut the levee, 'but the town cannot be mulcted in damages for an unauthorized act of an official. It seems that this issue was not fully developed. As the record stands, the evidence is not sufficient to support the' verdict and judgment against the town.

For the errors indicated the judgments are reversed, and the cause dismissed as to Road Improvement District No. 1 of Clajrk County, and remanded for a new trial as to the town of Gurdon.

McCulloch, C.J.,

(concurring). I agree fully with the result announced in this case, but I do not agree to that part of the opinion which holds that the owner of 'land may, after there has been a condemnation for road purposes under § 5249, Crawford & Moses ’ Digest, make an election to proceed under ■§ 5417, Crawford & Moses’ Digest, for the purpose of securing compensation for damages. I do not think that the case of Road Improvement District No. 6 of Lawrence County v. Hall, 140 Ark. 241, decides that to the extent indicated in the opinion in this case. In that case the road district had proceeded under § 5417, supra, and had deposited the amount to cover compensation in accordance with the statute, and had taken possession of the land to be condemned, but, on the appearance of the property owner to contest the proceeding, the district then sought to dismiss the proceeding’s and institute proceedings anew, under § 5’249, Crawford & Moses’ Digest. This court held that the landowner had the election to stay in the circuit court, where the suit had been originally brought, rather than to be carried into the county court. In the present case there had been a condemnation in the county court pursuant to § 5249, supra, and the time allowed for appeal from that order or for presentation of the claim had expired. The question of election is not involved in this case, but the opinion lays down the law that the landowner may, after condemnation in the county court under § 5249, elect to require proceedings under § 5417. Section 5249 provides a complete scheme for condemnation for road purposes and for the protection of owners of property in securing compensation. It provides for presentation of the claim in the county court where the condemnation order was made, and bars a recovery for damages unless the claim be presented within twelve months. My view is that, where there has been a condemnation under that section, the owner must proceed under the conditions therein prescribed.


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

text:
    Bost v. Road Improvement District No. 4.
    Opinion delivered April 21, 1924.
    1. Highways — necessity of special election. — Koad Improvement District No. 4 of Pope County, created by special act of extraordinary session of 1920, as amended by special act of 1923, p. 11, held to fall within the exception in the general highway statute (Acts Sp. Sess. 1923, p. 11, § 25) forbidding road improvement districts to proceed with the construction of improvements until an election has been held by the landowners, but excepting those districts which were created by acts providing for petition or election of the landowners.
    2. Highways — reasonable time for petitioning for election. — A statute providing for election as to the construction of a road' improvement, upon petition presented to the county court within thirty days after the statute takes effect, held not void as against contention that the time within which to present the petition was unreasonable.
    3. Evidence — -notice of statute. — -All persons are chargeable with constructive notice of the enactment of statutes.
    Appeal from Pope Chancery Court; W. E. Atlcmson, Chancellor;
    affirmed.

      Robert Bmtey, for appellant.
    The Harrelson Act, act No. 5, approved October 10, 1923, takes precedence over all special acts. Article 5, § 25, Constitution 1874; 135 Ark. 106, 223 S. W. 378; 138 ,Ark. 471, 212 S. W. 334; 142 Ark. 91; 218 S. W. 179; 145 Ark. 229; 137 Ark. 280. When it became a law, it immediately repealed all road -improvement districts in the State that had not performed certain requirements specified in § 25 in that act. The commissioners must have done the things specified in the act, before it was passed, otherwise the district has no legal existence. Here, it is undisputed, there was no construction work actually done, no -bonds actually sold or delivered2 whereas, the requirement is that bonds must have been outstanding, actually sold and delivered, 'before the passage of the act. The original act creating the district does not provide for a referendum, and the district was not established by a petition of a majority of the property owners. The amendment, approved February 23, 1923, in providing for a petition for an election to be signed by not less than 100 real property owners, within 30 days after the passage of the act, was impossible of accomplishment, unreasonable, and amounted to a virtual prohibition of the landowners in the district from being heard.

      E. A. Williams, for appellee.
    • The doing of any one of the things enumerated in § 25 •of -the Harrelson act, before the passage of the act, makes a district valid. In this case it is admitted that bonds were issued. Not only is the district valid under the first •paragraph of that section, but also under the last paragraph, the proviso to the effect that the act shall not apply to improvement districts, where the act creating the district or amendments to it provide for an election . to ascertain the will of the landowners. As to the office of a proviso, see 26 Am. & Eng. Enel, of L., 2d ed. 678. The enacting clause of an act cannot be construed as repealed by a proviso, so as to make of the latter the enacting clause. 46 Ark. 306; 63 Ark. 559; 74 Ark. 306. It is the duty of the courts to construe a statute, as nearly as possible, so as to carry out the intention of the Legislature. If it is susceptible of two constructions, one leading to an absurdity, and the other not, the latter construction will be adopted. 91 Ark. 5; 37 Ark. 495; 61 Ark. 226; 71 Ark. 556.
   McCulloch, C. J.

Appellant instituted this action in the chancery court of Pope County to restrain the commissioners of Road Improvement District No. 4 of that county from proceeding further under the statute creating the district. The district was created by special act of the extraordinary session of the General Assembly of 1920, authorizing the improvément of a certain road in Pope County running out from the incorporated town of Atkins. The case was tried below on an agreed statement of facts, which recites that benefits to the property of the district had been assessed, and taxes levied thereon had been collected for the years 1921 and 1922, except against some of the property owners, who had refused to pay, and-that the suit had been brought iby the commissioners of the district to collect the delinquent taxes.

At the regular session of the General Assembly of 1923 a special statute was enacted amending the act creating Road Improvement District No. 4 of Pope County, and % 5 of that statute reads as follows:

‘ ‘ The commissioners of said Road Improvement District Number Four of Pope County shall not proceed under this act for the space of thirty (30) days after it has become a law. In the meantime, if a petition, signed by not less than one hundred real property owners residing in the district, shall be presented to the county court of Pope County, demanding that an election be held to determine whether this act shall be put into operation, it shall be the duty of said county court or judge to require the election commissioners of Pope County to call a special election, to be held on a day to be fixed by the board of commissioners of said district, at which election only persons owning real property within the district will be allowed to vote. Said election shall be conducted as special elections are required to be conducted under the general election laws, and the voters shall vote at such precincts as may be designated by the county court or judge. The returns of said election shall 'be made to the county court of Pope County, in whose presence the votes shall be counted, and whose determination shall be final. The ballots shall be marked, ‘In favor of Road Improvement District Number Four of Pope County,’ and ‘Against Road Improvement District Number Four of Pope County; ’ and the property owners 'shall vote b}?- erasing the clause which does not express their wish. Only persons owning- property within the district subject to taxation under this act will be allowed to vote; but executors and administrators may vote for the estates represented by them, guardians of minors and insane persons may vote for their wards, corporations may vote by their duly constituted agents. If the county court shall find that a majority in numbers, acreage or assessed value of the owners of real property in the district have voted-in favor of said district, it shall enter its order to that effect, and it shall be the duty of said commissioners to proceed hereunder. If no such petition is presented within thirty (30) days, the commissioners of said district will proceed to carry out the terms and provisions of this act, and to improve the roads as heretofore authorized. In determining the value, the court shall be guided by the assessment for State and countv taxes in force at the time of the passage of this act; and to facilitate the counting of the votes, each landowner shall describe upon his ballot the lands owned by him.” Special Acts 1923, p. 360.

Section. 25 of the general highway statute enacted at the extraordinary session of the General Assembly in 1923 (Acts Special Session 1923, p. 11) reads, in part, as follows:

“The commissioners or directors of any road improvement districts created by special acts of the Legislature enacted since the session of the General Assembly in the year 1915, except St. Francis River Rload Improvement District of Poinsett County, Arkansas, and St. Francis River and Bridge Road Improvement District, Poinsett County, Arkansas, that have not, at the time of the passage of this act, let any construction contracts, actually done construction work, or issued, sold or delivered to the purchaser thereof any bonds of the district, shall not proceed with the construction of the improvements under their charge, and shall not issue any bonds to secure funds therefor, unless a majority in number and value of the landowners in fee simple in such district, voting at the election provided for in this act, shall express by their ballots a desire that the construction of such improvements be proceeded with. (Here follow provisions for giving notice and holding the election). This section of this act shall not apply to improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or an election to ascertain their will, or to those districts where actual construction work has been begun or contracts therefor have been made, or bonds sold and delivered and are outstanding before the passage of this act.”

It is alleged in the complaint that the commissioners of Road Improvement District No. 4 of Pope County are about to proceed without an election being held pursuant to the requirements of the general highway statute, supra, and that no election was ever held under the act of the regular session of the General Assembly of 1923, supra, amending the statute creating the district. The contention is that, as no election was held under the act amending the statute creating the district, all further proceedings are suspended under the general highway-statute until an election be held. It is recited in the agreed statement of facts that “the act creating the said district and the amendment thereto provided for an election by the landowners to ascertain their wish, but no election was demanded and none held.”

Our conclusion is that Road Improvement District No. 4 of Pope County does not fall within the requirements of § 25 of the general highway statute, which provides that “this section of this act shall not apply to improvement districts where the act creating the improvement districts or amendments to it provides for petitions of any majority of property owners, or an election to ascertain their will * * This district falls within the exception stated in the general highway statute, for it appears that the amendment to the statute creating this road distinct did, in fact, provide for an election to ascertain the will of property owners. It is true, as contended /by counsel for appellant, that the amendatory statute referred to above placed a condition upon the election that there should be a petition of one hundred property owners, but the general highway statute does not specify the conditions or terms upon which an election should be held. It merely declares that the act shall not apply to districts created by a statute which provides for an election to ascertain the will of the owners of property. Rayder v. McGehee East & West Highway District, 161 Ark. 269. In the case just cited we said:

“The exemption in the general highway bill does not specify what kind of an election must be held in order to come within its terms. The only specification is that districts formed under previous statutes, where there was a provision for a majority of property owners to petition or to vote at an election, should fall within the exemption. This only meant that, where there had been a reference of the statute, in such mode and upon such terms and regulations as the Legislature saw fit to provide, and the election was held in accordance therewith, there was to be no requirement under the latter statute for another election.”

It will be noted that the clause containing the exemption in § 25 of the general highway statute does not restrict the exemption to a district where an election has been actually held, but it exempts all districts where the act creating them provides for an election. There is, as before stated, an express provision in the act of 1923 providing for an election and specifying the terms and conditions upon which it shall be held. That is sufficient to bring it within the exemption clause of the general highway statute. '

It is also argued, as grounds for holding that this district does not fall within the exemption, that the time for property owners to present their petition is too short, being thirty days from and after the day the statute went into effect. We cannot say, as a matter of law, that the provision with respect to time is so unreasonable as to render the statute void. All persons are chargeable with constructive notice of the enactment of statutes, and we think that thirty days is sufficient opportunity for all interested persons to obtain actual knowledge of the enactment of the statute- and the provisions thereof. It will be noted that this statute does not require that the election be held within thirty days, but merely that the petition for the election must be filed within that time.

There is also a question in the case as to whether or not there was such an issuance of bonds as would bring the. case within the exemption contained in the general highway statute, but, as we have reached the conclusion that the exemption -covers the case because of the provision for an election in the act of 1923, it is unnecessary to discuss the other question.

The chancery court reached the correct, conclusion in holding that .operations in this district were not suspended by the general highway statute, and dismissing appellant’s complaint for want of equity, so the decree is affirmed.

Hart, J.,

(dissenting). Judge Wood and myself think that the construction placed by the majority upon § 25 -of the act of the special session of 1923 providing for a system of State highways is contrary to the plain import of the language used by the framers of the act.

Section 25 provides that the commissioners of any road improvement district created by a special act of the Legislature since the session of 1915, with certain exceptions, that have not let any construction contract, shall not proceed with the construction of the improvement unless a majority In number and in value of the landowners in such district shall express, by their ballots, a desire that the construction of such improvement be proceeded with. The section provides that the election shall be held on a day designated by the commissioners, after two weeks ’ notice. A form of the notice of the election is given, and concludes with the following: “All owners in fee simple of real property within said improvement district will be entitled to vote at such election. ’ ’

The section also provides that the commissioners shall supply each polling- place with a list of the lands and the owners thereof in the district and the value of each tract, as shown by the assessment for State and county taxes then in force.

Another part of the section provides that, if a majority in number or value of the owners of lands voting at the election shall vote against the construction of the improvement, the commissioners shall take no further action toward the construction of the improvement. Other parts of the section contemplate that the commissioners shall hold the election and that all the landowners in the district shall be entitled to vote at it. The concluding part of the section is that it shall not apply to an improvement district where the act creating the improvement district provides for a petition by a majority of the property owners or an election to ascertain their will. When this proviso is construed in connection with the whole section, we think it means an election held by the commissioners of the district in the same manner as the election provided for in § 25 is held. It does not mean an election conditioned upon action taken by the landowners. If such construction is to be placed upon it, it is obvious that the main purpose of the act will be defeated. In this way it would include districts where the provisions for an election contain conditions or limitations so burdensome to the landowners that the beneficial purpose intended by the section would be lost.

We do not think that the proviso of § 25 intended to exempt acts creating* improvement districts where restrictions were placed upon the elections to be held. The provisions of the former acts with regard to the election provided in them must be as broad as the terms of § 25, providing an election thereunder, in order to save the acts from the provision of § 25 referred to.

In short, we think that the Legislature intended that an election should be held in all cases under the provisions of § 25, unless the special act creating the improvement district provided for an election in all essential respects similar to the one provided in § 25. ■

Therefore we respectfully dissent.


author: McCulloch, C. J.

text:
    Imboden v. Citizens’ Bank.
    Opinion delivered April 21, 1924.
    Mortgages — priority op mechanics’ lien.' — Under Crawford & Moses’ Dig., § 6909, a mechanic’s or materialman’s lien is superior to a prior mortgage only on a separate building constructed with the labor and material furnished, or such addition as is separable from the original building, without injury thereto.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Strait & Strait, for appellant.
   McCulloch, C. J.

C. C. Harris was the owner of real estate in the city of Morrilton, on which was situated a residence, and appellant, J. H. Imboden, furnished to him building* material to be used in the repair and extension, or enlargement, of the dwelling-house. Appellant filed Ms lien in accordance with, the statute, claiming a balance in tbe sum of $1,000, tbe price of the material furnished, and on April 23, 1921, instituted an action in the .chancery court of Conway County against Harris and wife to enforce his lien. There was a decree in favor of appellant against Harris for the recovery of the amount of his debt claimed and for enforcement of the same as a lien for material furnished. The property (the lots and building) was ordered sold by a commissioner appointed by the court, and the sale was advertised, but, before the date of the sale, the Georgia State Savings Association, a foreign corporation, instituted an action in the chancery court for the purpose of foreclosing a mortgage on the property, and a temporary restraining order was issued against appellant, staying-further proceeding’s under the former decree. Appellant was made defendant in that action, and also appellee Citizens’ Bank was made party as a junior lienor.

Harris and wife mortgaged the property in question to the Georgia State Savings Association in the year 1918, and later executed a second mortgage to the Citizens’ Bank. Both of these mortgages were in force at the time appellant furnished the material to Harris, and are still in force, none of the debts having (been paid by Harris.

The Citizens’ Bank appeared and filed its cross-complaint, asking for a foreclosure of its mortgage, subject only to the prior mortgage of the Georgia State Savings Association. Appellant filed his plea in the nature of a cross-complaint, asking that, in the event the court decided that the respective liens of the Georgia State Savings Association and the Citizens’ Bank were prior to his lien on the land, his lien be declared superior on the building.

The cause proceeded to a hearing on the pleadings and proof, and the court rendered a final decree declaring the respective mortgage liens of the Georgia State Savings Association and the Citizens’ Bank to be superior, in the order named, to the lien of appellant on the building as well as on the land.

It seems to be conceded on all sides that the property is not of sufficient value to discharge all of the liens.

Appellant concedes that the respective liens of the two mortgages are superior to his so far as the land .is concerned, but he insists that his lien is superior on the building, and should be enforced under the statute, which reads as follows:'

“Section 6909. The liens for the things aforesaid, or work, shall attach to the buildings, erections or other improvements, for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements, or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; (a), provided, however, that in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act.” Crawford & Moses’ Digest.

“■Section 6911. The lien for work and materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such building, bridges, boats or vessels or other improvements, on the ground, or either of them, subsequent to the commencement of such' buildings or improvements.” Id.

The character of the added improvement constituted an extension or enlargement of the building on the mortgaged property, and the proof is conflicting as to whether or not it constituted a real betterment so as to enhance its value. It is clear from the proof that the building is not separate from the original building so as to constitute a distinct improvement which is separable from the original building. Appellant’s claim of priority therefore calls for a construction of the statute quoted above.

Our construction of the statute is that, as between the lien of a mechanic or the furnisher of material and the lien of a prior mortgage, the lien of the former is superior only upon a separate building constructed on the land with the labor and material furnished, or to such an addition as is separable from the original building. In other words, in order to give a lien to a mechanic or furnisher of material superior to a prior mortgage, the improvement must be separate from the original improvement, or, if connected in any way with the original improvement, it must be so connected as to be removable without injury to the original building. Under the statute the lien of a mechanic or furnisher of material is not superior to a prior mortgage on the entire improved building, nor even to the extent of the betterment accruing from the repair, extension or enlargement of the original building. It is clear that there was no intention on the part of the lawmakers to attempt to impair the obligation of a prior mortgage or the remedy of the mortgagee. On the contrary, the purpose is clear to give a subsequent lienor a distinct remedy for an independent improvement, or what amounts to an independent and separable improvement. The only remedy conferred by the statute in .such an instance is to give the subsequent lienor the right to have “such building, erection or improvement sold under execution, ’ ’ and to give the purchaser the right to remove the building within a reasonable time. The statute confers no joint lien between incumbrances prior and subsequent in point of time, but merely gives separate and distinct liens where an independent improvement is erected on previously incumbered property. The Supreme Court of Alabama, in the case of Wimberly v. Mayberry, 94 Ala. 240, construed a statute of that State very similar to our statute as giving a statutory lien in favor of a mechanic or furnisher of material to the extent of the betterment, in value or price, to the original building. The theory adopted by the court in the construction of the statute was that, in enforcing the respective liens and in determining the priorities, a court of equity should determine the value of the land and buildings thereon prior to the furnishing of the labor or material for which the new lien is claimed, and then determine the amount of additional value given to the property by the labor or material, and, when the property is sold, distribute the proceeds of the sale in that ratio, giving the first lien priority to the extent of the' proportionate original value and giving the subsequent lien priority to the extent proportionate to the betterment. The Alabama court adopted this theory as an .equitable remedy to be worked out under the statute— not asserting that the statute itself gave that remedy. The Alabama court is not sustained in its conclusion by the decisions of,any other courts, so far as we can ascertain. In Illinois and Virginia there are statutes which expressly give the right to a junior lienor to a superior lien on the betterment, the same as the Alabama court worked out under the statute of that State, and, of course, the courts of those States, in enforcing the lien on the betterment, merely carried out the terms of the statute. Croskey v. Northwestern Mfg. Co., 40 Ill. 481; Fidelity Loan & Trust Co. v. Dennis, 93 Va. 504. Statutes similar to our own and the Alabama statute in the States of Iowa and Missouri have been given the same interpretation which we now give to our statute, and contrary to the construction given by the Alabama court. Getchell v. Allen, 34 Iowa 559; Crandall v. Cooper, 62 Mo. 478. In the opinion by Judge Mitchell, in the case of Meyer v. Berlandi, 39 Minn. 438, the Supreme Court of Minnesota declared a, statute to be unconstitutional which attempted to give to a mechanic or furnisher of material a superior lien on a building situated on previously mortgaged property, but the entire trend of the opinion is against the views expressed by the Alabama court. The Minnesota statute went further than our statute does, but it is clear from the language of the opinion cited above that, if the statute had been identical with our statute, the construction would have been the same which we have now reached with respect to it. There was no attempt in the present case to show that there was a separate removable improvement, but the effort of appellant was, and is, to obtain a superior lien on the original building as enlarged and improved with the materials furnished.

We think that the chancery court reached the correct conclusion in declaring the mortgage lien of appellees superior as to the building as well as the land. The decree is therefore affirmed.


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    Oyler v. Semple.
    Opinion delivered April 21, 1924.
    1. Husband and wipe — liability op husband for wife’s board.— Where a husband and wife separated, and he sent her and their child to her father, the latter was entitled to recover from the husband for the board of his wife .and child, less the value of any services rendered toy the wife and child.
    2. Evidence — weight and sufficiency. — The jury is not bound to accept the testimony of a party as true.
    3. Husband and wife — action for board of wife — evidence.—In an action by a wife’s father against her husband for 'board furnished to the wife and child, evidence held to sustain a verdict •for defendant on the theory that the wife’s services paid for board of herself and child.
    4* Husband and wife — action for wife’s board — evidence.-—In an action by a wife’s father, against her husband for board furnished to the wife and child, evidence that, on an application for alimony, the father had represented that the wife had been working for • • her board was evidence that she had earned her board.
    5. "Appeal and error — harmless argument. — In an action by a wife’s father against her husband for the value of board furnished to the wife and child the statement of defendant’s counsel in argument that “plaintiff has lots of money, he is fond of spondulix,” was harmless.
    Appeal from Sharp Circuit Court, Northern District ; John G. Ashley, Judge;
    affirmed.

      David L. King, for appellant.
   McCulloch, C. J.

Appellant instituted this action against appellee to recover the sum of $110 for board of appellee’s wife and infant child for three and two-thirds months at the rate of thirty dollars per month from May 25, 1921, to September 15, 1921.

It is alleged in the complaint that appellee and his wife, who was .appellant’s daughter, separated on May 25, 1921, and that appellee sent his wife and child to the home of appellant, where they were taken care of for the time stated above.

Appellee filed an answer, presenting issues which were tried before a jury, and the trial resulted in favor of appellee.

According to the testimony in the case, appellee and his wife separated on the day mentioned in appellant’s complaint, and he sent his wife and child over to appellant, who was her father. On that day appellee instituted a suit for divorce, and appellee’s wife and child remained with appellant until December 25, 1921, when appellee’s wife became reconciled, and she returned to his home without the divorce Suit having proceeded to final decree.

• On September 15, 1921, appellee’s wife applied to the chancery court for an order on appellee for the payment of alimony in the sum of thirty-five dollars per month, which sum the court allowed, payments commencing on that.date.

In the present action appellant’s claim against appellee is for board from the time appellee’s wife and child came to his home up to the time the chancery court made the allowance. The court instructed the jury as follows :

“You are instructed that the defendant in this case is liable to the plaintiff, Mr. Oyler, for board and lodging of his wife and child from the 24th day of May, 1921, to September 15, 1921, and, in this connection, you are further instructed that the husband is entitled to the services of his wife, and whatever work she may have done for the plaintiff, Mr. Oyler, or his family, or around his place, for him and his immediate family, such as hauling hay, hauling oats, and helping Mr. Oyler, and doing work which accrued to his benefit, would entitle Mr. Semple to a credit on the sum for board and lodging in whatever sum you might think such services were reasonably worth, basing your findings on the evidence in the case during the three and two-thirds months for which (board and lodging is charged, and whatever amount you may find such services to be worth you will deduct from the sum you find to be a reasonable charge for such board and lodging, and render your verdict accordingly.”

There is no error assigned with regard to the giving of this instruction, and .it is readily seen that the statement of the law was as favorable to appellant as he was entitled to. The instruction was peremptory as to appellee’s liability to appellant for the keep of his wife and child, but submitted the question as to reduction for the value of any services rendered to appellant by appellee’s wife. Of course, appellant could not collect for board, which had been paid for by services.

It is earnestly insisted that there is no evidence to sustain the verdict, but we think that the evidence is legally sufficient to warrant a submission of the issue to the jury as to the value of the services rendered to appellant by appellee’s wife. In the first place, appellant’s case depended mainly upon his own testimony, which'the jury was not bound to accept as true. Skillern v. Baker, 82 Ark. 86. In addition to that, there was some testimony to the effect that services were performed for appellant by appellee’s wife while she was staying there. Appellant himself testified that she helped in the housekeeping, and there was also testimony that she performed labor in the field. Appellant and appellee were both farmers, and lived within-a few miles of each other.

Appellee testified that the application to the chancery court for the allowance of alimony for his wife was made by her attorney, Mr. King, who is attorney' for appellant in the present litigation, and that appellant himself accompanied the wife when the application was made, and that both of them represented to the court, as grounds for the allowance of alimony, that appellee’s wife had been, up to that time, working for her board. This testimony had substantive force in tending to show that appellee’s wife had earned her board and that of her child up to the time the allowance was made by the court. We áre therefore unable to say that the record is entirely free of any testimony bearing on the issues in the case.

There are assignments of error with respect to the rulings of the court on objections to argument of counsel, but there is nothing which appears to have had a reasonable tendency to prejudice the rights of appellant. One of the- assignments relates to a statement of appellee’s counsel in his closing argument, that appellant “has lots of money, he is fond of spondulix. ” The argument had no proper bearing on the issues in the case, but we fail to see any possible prejudice that might have resulted from the statement. It appears from the evidence that appellant was a farmer, having a comfortable home, and the statement to the effect that he had plenty of money and was fond of it was not calculated to arouse the passions and prejudices of the jury.

Of course, we are not concerned with the weight of the evidence further than to determine whether or not there is legally sufficient evidence to support the verdict.

Finding no error, and there being legally sufficient evidence to support the verdict, the judgment should be affirmed, and it is so ordered.


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    Williams v. State.
    Opinion delivered April 21, 1924.
    1. Criminal law — right of defendant to conduct defense.— Where a defendant is mentally capable of acting for himself, and elects to conduct his own defense without an attorney to represent him, it was not error to permit him to do so.

      2, Criminal law — permitting an incompetent to go to trial without counsel. — Where the evidence in a criminal case clearly presented the issue as to defendant’s sanity, it was error to permit the defendant to go to trial without counsel, and such objection could be raised for the first timé in a motion for new trial.
    Appeal from Hot Spring Circuit Court; T. E. Toler, Judge;
    reversed.

      D. E. Waddell, for appellant.

      J. S. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted by the grand jury of Hot Spring County for the crime of assault with intent to kill, committed by firing pistol shots and wounding his father, J. M. Williams, with felonious intent to kill and murder; and, on the trial of the cause, appellant was convicted of assault with intent to kill, and his punishment was fixed at a term of three years in the State Penitentiary.

Appellant was not represented by counsel during the trial, but, after the conclusion of the trial, a motion for a new trial was filed by an attorney who had been appointed by the court, prior to the trial, to represent appellant, and who had not acted in that capacity because of appellant’s election to conduct his own defense. The motion thus filed by the attorney set up as grounds that the verdict was not supported by sufficient evidence, and that the court.erred “in putting the defendant to trial without legal counsel.”

The indictment was returned by the grand jury on July 20, 1923, and the offense was alleged to have been committed on April 22, 1923. • The case was tried on an adjourned day of the July term on November 17,1923.

It appears from the record that, prior to the day of trial, the court appointed a member of the Saline County bar to represent appellant, but, when the case was called for trial, the attorney so appointed failed to make his appearance, and the court then appointed Mr. Wadded, a member of the Hot Spring County bar. The record recites that Mr. Waddell informed the court, upon his appointment, that he “did not feel that he was in a position to properly represent said defendant on snoh short notice,” and that the court thereupon offered to give appellant more time to select counsel, but that appellant asked “to proceed in the trial without an attorney,” which was done, defendant representing himself. After the trial, Mr. Waddell, as before stated, filed a motion for a new trial.

The State introduced only one witness, appellant’s father, on whom the assault was committed. The witness is a practicing physician at Malvern, the county seat of Hot Spring County, and he testified that his son, the appellant, fired two shots at him, one of which struck him in the arm and the other in the back, and he detailed the circumstances under which appellant fired the shots. It appears from his testimony that appellant had been addicted to the use of morphine for many years, and, on the night the offense was committed, at about the hour of twelve-thirty, appellant came to the room of witness with a pistol in his hand, and demanded of witness a hypodermic syringe and morphine, which witness gave him, under threat. He testified that, at a later hour, after appellant had used the drug, his wife, the mother of appellant, went into the room and got the syringe and returned it to witness; that, early in the morning, witness went into the room and tried to get the gun away from appellant, as he knew that he was in a dangerous mental condition. Witness testified that, when he opened the door, he saw appellant standing at a trunk, and asked him about the syringe. The statement of the witness as to what transpired then was as follows: “When I asked about my syringe he cast his eyes up, with a hideous and vicious expression, and said, ‘Your damned old syringe is out in the hall, broken.’ I did not see any gun in his hand. He made about two steps forward toward me, and fired a shot, which struck me in mv right arm. I immediately turned and he fired again, the bullet striking me in the back.” Witness testified that appellant’s mind first became affected by the use of alcohol during the year 1912, and that in that year he lost his mind, and was committed to the Hospital for Nervous Diseases, in Little Rock, and remained there for treatment about five months; that, in the year 1920, appellant began drinking and using morphine, and became violently insane, and was again -committed to the insane asylum, and remained there six or eight months; that, in February, 1922, appellant was again committed to the asylum in Little Rock, and remained there five or six months; that, after the commission of this offense, appellant was confined in jail at Malvern, and was violently insane, and was again committed to the asylum, but had been later discharged. Dr. Williams was recalled by the court and was asked to tell what the condition of appellant’s mind was at the time he committed the offense, and the witness answered as follows:

“The boy’s mind had never been right since he was committed in 1912 in the insane asylum. At times, when he could be gotten out from under the influence of liquor and opiates, he would seemingly be normal. Periodic spells would come on him, when he would do or say things for which I do not think he was responsible, and at times would become violent. This gradually grew worse on him. I regarded him as being violently insane, and not mentally responsible for his acts. After the sheriff came and took charge of him I told him not to harm him or ill treat him, for he was not mentally responsible for what he had done. ’ ’

Appellant took the witness stand in his own behalf, and admitted that-he shot his father,-and that he did so for the reason that his “father had been drinking, and had not been treating his mother right. ’ ’ His statement admitting the shooting was as follows: “I shot my father, as he has testified to here. They thought I was crazy, but I am not; I have a certificate showing that I have been discharged from the Hospital for Nervous Diseases. ’ ’ Appellant then called as a witness- the' sheriff of the county, who testified about arresting appellant and keeping him in jail, and thence carrying him to the Hospital for Nervous Diseases at Little Bock. Tlie sheriff testified that appellant “seemed to he of a vicious nature,” and that he had to use force in handling him and ■carrying him to the asylum. A question propounded by appellant and answered by the witness was as follows:

“Q. Mr. Fisher, didn’t I tell you that my father had been drinking, and that you had better come and get him? A. No, John, you didn’t tell me that. I don’t know anything about Dr. Williams drinking at any time, and I know John never said anything to me about it at any time.”

Appellant called another witness, a servant in the family, who testified that she had seen Dr. Williams drinking and under the influence of whiskey, but had never seen him mistreat his wife in any way. Another witness called 'testified that Dr. Williams was not drinking.

The court gave three instructions, one on the substantive law as to the crime charged in the indictment, another on the subject of reasonable doubt, and a third on the subject of the duty and province of the jury in weighing the evidence. The court also gave three instructions, at the request of appellant, all of them relating to the subject of reasonable doubt. The question of appellant’s sanity at the time of the commission of the offense was not submitted to the jury.

If, at the time of the trial, appellant was mentally capable of acting for himself, there was no error committed by the court in permitting him to go to trial without an attorney to represent him. If, under those circumstances, he preferred to conduct his own defense rather than to await the convenience of the appointed attorney, the court was not bound to force the services of an attorney upon him or to postpone the case. In dealing with this question in a recent case, we said: “He has the right, if he so elects, to conduct his own defense, but he does not thereby become absolved from the duty of observing the rules of practice designed to promote the orderly administration of the law. Appellant should therefore have made objection to such rulings of the court below as he cared to have reviewed by this court, and, as he made no objection to anything that occurred at his trial, there is presented for our review only such questions as can be raised without objection first being made in the court below.” Williams v. State, 153 Ark. 289. The case from which the above quotation is taken was one where the question of the mental capacity of the acused was not involved.

The assignment of error with respect to the court permitting the accused to go to trial without counsel could easily be disposed of on the ground that proper objection had not been made so as to call for a ruling of the court, if the question of appellant’s mental condition did not present itself; but, that question being obviously presented, we must treat this assignment in the motion for a new trial as sufficiently raising the question whether or xxot the court erred in ordering the trial to proceed upon appellant’s own election to conduct Ms own defense. There was abundant evidence to show that appellant was not only mentally incapacitated at the time of the commission of the offexise, but also at the time of the trial. It is unnecessary for us to discuss the weight of the testimony further than to say that there are grounds for believing that appellant was not mentally capable at either of those times — that is sufficiently made to appear by the evidence brought forward in the bill of exceptions. Under those circumstances, the court should not have permitted the trial of appellant to proceed without counsel. The assignment of error in the motion for a new trial sufficiently indicates that the error was in permitting the trial to proceed without appellant having counsel to act for him while his mental condition was in doubt. We are at liberty to examine the evidence adduced at the trial for the purpose of determining whether or not the court, after hearing that evidence, should have ordered a new trial so that appellant could have the benefit of counsel. Notwithstanding the affirmative evidence coming from the State’s only witness tending strongly to show that appellant was insane at the time of the commission of the offense, this question was not submitted to the jury at all — no instructions .were asked or given on that subject, and the ease went to the jury solely on the question of the guilt or innocence of the accused, irrespective of his mental condition. Even if the appearance of appellant indicated to the court, at the time he permitted the trial to begin, that appellant was of sufficient mental capacity to conduct his own defense, we are of-the opinion that, after the testimony was adduced in the case and the attorney subsequently appeared for the appellant and asked for a new trial, the court should have granted it.

The judgment is therefore reversed, and the cause is remanded for a new trial.


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    State v. Miller-Butterworth Company.
    Opinion delivered April 21, 1924.
    1. States — gift in praesenti. — The act of Congress authorizing the Secretary of War to transfer certain surplus motor-propelled vehicles and road-making materials to the States (41 Stat. at L. 530) constituted a gift in praesenti by the Federal to the State Government.
    2. States — disposition op unserviceable machinery — A crane constructed and purchased by the Federal Government as a hoisting machine for loading and unloading vessels at dock, not being serviceable for general road-building purposes because too wide for standard-gauge railroad tracks, though capable of limited use for loading and unloading at central points, was not within the prohibition of the Act of Congress (41 Stat. at L. 530) against the sale of property donated to the States, if in serviceable condition.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      J. 8. Utley, Attorney 'General, and B. W. Wilson, special counsel, for appellant.
    1. The State ought to recover on the rental contract. It is a valid and binding contract, based on a sufficient consideration, free from all fraud, duress and undue influence. In addition to the benefit derived by appellee and the disadvantages it avoided, the State at the time waived its right to institute legal proceedings, and that of itself was a sufficient consideration. 31 Ark. 631; 101 Ark. 335; 126 Ark. 549; 134 Ark. 547 ; 74 Ark. 270; -99 Ark. 588; 102 Ark. 428; 105 Ark. 638; 129 Ark. Ill; 141 Ark. 329; 142 Ark. 453. The burden was on the appellee to show by clear, convincing and satisfactory evidence that fraud was practiced on it by the 'State officials. 144 Ark. 7; Black on Rescission and Cancellation, §§ 676-677; 33 Ark. 97, 103. .
    2. The transfer of the property to Wilson & Gregory was invalid, an act ultra vires on the part of the Highway Commissioner. It was new machinery, not in need of repair, and could not have been unserviceable in contemplation of law, that is, so worn and deteriorated from use as to require thirty per cent, of its original value to replace it in usable condition, Wadsworth-Kahn Act of Congress, approved March 15, 1920; 72 N. Y. 279; 143 Ark. 149, 150 ; 154 Ark. 493..

      J. A. Tellier, for Miller-Butterworth Company.
    1. The contract of October 25, 1921, is without consideration, and nonenforceable. It was entered into between the State and this appellee as a temporary arrangement, pending the outcome of the case of the State v. Cox, 154 Ark. 493, and under threat of a replevin suit by the State. The full consideration for the life-lease of the trucks had been paid, and there was no new consideration. 112 Ark. 225 and cases cited; 129 Ark. 82-85; 1 Elliott on Contracts, 414, 366.
    2. If the contract of October 25, 1921, be held as enforceable, there is still no liability on the part of this appellee, since it has paid the rent on the trucks up to February 25, 1922, thirty days after the date it tendered them back to the Highway Department.
    3. The life-lease of the trucks under the executed parol agreement between the State and Miller-Butter-worth Company was a valid and binding contract and precludes recovery for rent on the trucks. 154 Ark. 493, 506, 507.
    4. The Dravo-Locomotive crane, included in the lease of October 25, 1921, did not belong to the State at that time, and no recovery can be had for the crane. The preponderance of the evidence shows that it was unserviceable, and that being true, the State had the right to pass the title to an individual, company or corporation. 154 Ark. 493,

      John F. Clifford, for Gregory & Wilson.
    The evidence shows that the dock crane in question was neither suitable nor serviceable for road building. Under the A|cts of Congress, approved February 28,1919, and March 15, 1920, the machine was donated to the State; the Highway Commissioner had authority to receive it on behalf of the State and to use it or the proceeds thereof for constructing and maintaining public roads. Being both unsuitable and unserviceable for the purposes of road construction or repair thereof, the Highway Commissioner had the right on behalf of the State to sell it. 154 Ark. 493.
   McCulloch, C. J.

The State of Arkansas instituted an action at law in the Pulaski Circuit Court against Miller-Butterworth Company, one of the appellees, to recover the rental price under a lease contract executed by the State Highway Department with said appellee for the use of three motor trucks and a locomotive derrick and steel crane, the last mentioned piece of machinery being designated as a Drave-Doyle locomotive derrick and steel crane, which is a piece of machinery used for hoisting purposes. All of the machinery specified in the contract had been received by the State Highway Department-from the United States Government as unused war material donated to the State under the act of Congress approved March 15, 1920, entitled, “An act to authorize the Secretary of War to transfer certain surplus motor-propelled vehicles * * * and road-making materials to various services in the departments of the government and for the use of the States.” 41 Stat. at L., p. 530.

It is undisputed that the title to the three trucks embraced in the lease contract is still in the State Highway Department, under the donation from the Federal Government, but the title to the crane mentioned in the rental contract is in dispute. Another action involving the title to the crane was consolidated with the suit against Miller-Butterworth Company, and. both actions were transferred to the chancery court and tried together. Gregory & "Wilson, the claimants to the title to the crane, were parties to the action, and the chancery court decided in favor of Gregory & Wilson and against the State as to the title to the crane, and decided in favor of Miller-Butterworth Company and against the State as to the right of the latter to recover rent.

The real issue in the case concerns the title to the crane, for the Miller-Butterworth Company paid the rentals as long as it used the property, and offered to return the trucks. Gregory & Wilson purchased the trucks from the State Highway Department, and after-wards contracted to sell the same to the Miller-Butter-worth Company, but, when the title became in dispute, the sale was rescinded and the property and machine were returned to Gregory & Wilson. It was embraced in the lease contract, but the contention of Miller-Butterworth Company is that the State had no title to the crane, and that it was surrendered to Gregory & Wilson under paramount title. The real issue in the case therefore is, as before stated, concerning the title to the crane.

■The act of Congress, supra, constituted a donation of the title m praesenti by the Federal Government to the State. State v. Cox, 154 Ark. 493. Section 5 of the act of Congress provides that the vehicles and equipment donated “shall be and remain vested in the State for the use and improvement of the public highways,” and the section embraces the further condition that “no such vehicles and equipment in serviceable condition shall be sold or the title to the same transferred to any individual, company or corporation.” The case turns on the proof as to whether or not the machine is one which falls within the condition stated in the Federal statute with respect to serviceability. The testimony in the case is very voluminous, many witnesses being' called to testify as experts and as to their experience in the use of such machine on the question as to its serviceability. The testimony is overwhelming, if there is, indeed, any dispute at all, that the crane is not serviceable for general road-building purposes on account of the fact that it is too wide for a standard-gauge railroad track, and therefore cannot be moved about without being taken down. There is proof to the effect that it is adapted to a very limited service at central points for the purpose of loading or unloading gravel or rock to be used for road purposes. The proof shows that the machine was constructed and purchased by the Federal Government as a hoisting machine for loading and unloading vessels at dock, and, as before stated, it was not serviceable for general road-building purposes. That being the state of the case, it is controlled by the decision of this court in the case of State v. Cox, supra. The testimony in the two cases is substantially the same, each involving the same kind of a machine, and in that case we construed the statute to mean that the language of the exemption referred to serviceability in a practical sense for road-building purposes. We based the decision upholding the sale by the State on the ground that “a preponderance of the evidence shows that the property in controversy at the time of its sale to appellee was' unserviceable and not suitable for general road-building purposes in this State.” In the opinion it was also said: ‘ ‘ The equipment was entirely too heavy, not of standard gauge, and was impractical to be used in building highways in the State of Arkansas.” While the proof shows that the equipment was virtually new, nevertheless it was not serviceable for the building of highways in this State.

The legal title to the machine was, and is,- in appellees, Gregory & "Wilson, and, as' the Miller-Butterworth Company surrendered possession to them under paramount title and offered to return the trucks under the option clause in the lease contract, the latter is not liable to the State for the rent.

The decree is therefore affirmed.


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    McGowne v. Frisby.
    Opinion delivered April 21, 1924.
    1. Appeal and error — conclusiveness op chancellor’s finding.— The findings of fact of a chancellor, not clearly against the preponderance of the evidence, will be upheld on appeal.
    2. Vendor and purchaser — remedy for breach of warranty. — A purchaser of land under conveyance with covenant of warranty has no cause of action for rescission or for damages until there has been a failure of title of at least a material portion of the land and an eviction under paramount title, unless there has been fraudulent misrepresentation or concealment of material facts inducing the sale.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Calvim, Sellers and G. B. Colvin, for appellant.
    There can be no question but that the title failed to forty acres of the land. Thereby the appellant was deprived 'substantially of the beneficial enjoyment of his purchase as shown by the failure of the negotiations for a loan on the land. 159 Ark. 611; 129 Ark. 420.

      M. H. Dean and Strcdt & Strait, for appellees.
    If appellant had any objection to the tille, it was his duty to assert it promptly, a thing which, under the facts in this case, he failed to do. 142 Arle. 553; 46 Ark. 337. A vendee is chargeable with notice of any defects appearing in the record title. 150 Ark. 355; 144 Ark. 79; 146 Ark. 247. When appellees learned that appellant was withholding the deeds by which they sought to perfect the title from Mrs. Rump and her children, and was trying to promote a suit against them on his part, appellees themselves procured from her and her children a deed whereby any possible defect in the title was cured, if any existed. This having been done before decree, appellant was not entitled to rescission. 40 Ark. 420. See also 128 Ark. 421; 46 Ark. 337.
   McCulloch, C. J.

Appellees were the owners of a quarter-section of land in Perry County, and, on February 20, 1919, they sold and, by deed with full covenants of warranty, conveyed it to appellant for a consideration of $10,500, of which $4,000 was paid in cash, and appellant executed annual installment notes for the remainder. Appellant made the payment which fell due on January 1, 1920, but failed to pay the next installment note, and appellees instituted suit against him in the chancery court of Perry County to foreclose the lien for the unpaid part of the purchase price. Appellant did not appear in the action, and a decree by default was rendered against him for the recovery of the amount due on the notes and for foreclosure of the lien. The decree was entered on May 19, 1921, 'but the sale was not made, and the decree was reentered and the order of sale renewed on April 20, 1922, and the land was sold by the commissioner-of the court on May 6, 1922, and was purchased by appellees. After the sale by the commissioner, but before confirmation of the sale, appellant instituted an independent action against appellees for a rescission of the sale and recovery of the amount of purchase money paid, and also filed exceptions to the report of sale. The two proceedings were consolidated and heard together, and, on final hearing, the court dismissed appellant’s complaint for want of equity, and overruled his exceptions, and confirmed the sale of the land to appellees.

Appellant bases his right to rescind the sale and recover the portion of the purchase money paid on the ground that appellees represented to him that the title was clear, and that they would assist him in making the title satisfactory to the Federal Land Bank, from which agency or institution appellant was to borrow money to complete the payment.

Appellant alleged and undertook to prove that there was a failure of title to forty acres of the land sold, in that the title .was in the heirs of a man named Driller, and that appellees had failed in their undertaking to clear up the title so as to make it satisfactory to the Federal Land Bank; that application for the loan had been made to the Federal Land Bank and allowed, but that the title was imperfect, and the loan was finally refused on that account.

On the trial of the cause there was a conflict in the testimony as to whether or not appellees had made any express representations to appellant concerning the title or had made any promise to him to clear the title so as to satisfy the Federal Land Bank. Appellant’s testimony was to the effect that such representations and promises were made to him, and he is corroborated by two other witnesses, members of his family, but this is positively denied by each of the two appellees, who both testified that they had been willing at all times to assist appellant in clearing up any apparent defect in the title so as to satisfy the Federal Land Bank, and that they did not refuse any assistance within their power.

According to the testimony, the title-examiner for the Federal Land Bank pointed out certain supposed defects in the title with reference to the forty acres of land, and required affidavits as to who were the heirs of the former owner, Driller, and also required quitclaim deeds from them. The testimony also shows that one of the attorneys for appellees offered assistance to appellant in procuring the necessary affidavits and quitclaim deeds so as to satisfy the Federal Land Bank. Appellees also introduced testimony tending to show that appellant, instead of trying to - comply with the requirements of the Federal Land Bank, encouraged the heirs of Driller to bring suit against him for the land so as to afford him grounds for compelling appellees to rescind the contract.

There was,- as before stated, a conflict in the testimony on the issue as to whether or not appellees made false representations concerning the title, or promises with respect to clearing np the title to satisfy the Federal Land Bank, and we are of the opinion that the finding of the chancellor on this issue is not against the preponderance of the evidence. The decree of the chancery court necessarily indicates a finding against appellant on that issue. The deed of appellees to appellant contains full covenants of warranty of title, and appellees would be liable for breach of the covenants upon proof of failure of title and eviction, and would also, upon such proof, be entitled to a rescission of the sale and purchase. But the proof in this case does not establish any such state of facts. It is shown that the title examiner of the Federal Land Bank made'substantial objections to the condition of the title as shown in the abstract, and required that the apparent defects be cleared up, but those objections were mere reasons given why the loan would not be made until the requirements were complied with, and the proof in the case does not show any actual failure of title or an eviction under paramount title. The rule established by our decisions is that a purchaser under a contract of sale which has been fully executed by a conveyance with covenants of warranty has no cause of action for rescission or for damages until there has been shown a failure of title'of at least a material portion of the land and an eviction under paramount title, unless there had been fraudulent misrepresentation or concealment of material facts which induced the sale. Diggs v. Kirby, 40 Ark. 420.

Appellant failed to make out his case by a preponderance of the testimony, and the chancery court was correct in its decree.

Affirmed.


author: Wood, J.

text:
    Slayden v. Augusta Cooperage Company.
    Opinion delivered April 21, 1924.
    1. Contracts — mutuality.—A contract for the sale of logs which left it optional with the seller whether he would deliver any logs was ladling in mutuality and unenforceable until performance, but where the seller performed on his part by delivering the logs and the buyer accepted and paid for part of the logs but failed to pay for the rest of the logs so delivered, a cause of action on behalf of the seller arose.
    2. Principal and agent — authority op agent. — An instruction authorizing recovery of the contract price of logs by .the seller where the logs were iboomed and accepted by an agent of the buyer having authority to buy logs on the bank of the river was correct, and inconsistent with an instruction that, if the agent had instructions to buy only logs on the river bank and for immediate payment, he was a limited or special agent, and verdict must be for the buyer; the latter instruction being misleading.
    3. Principal and agent — general and special agent. — A general agent acting within the apparent scope of his authority may bind his principal in dealing with one who has no notice of any restrictions upon the agent’s authority, but, as to a special agent, that is, one whose authority is limited to a single transaction, or to a particular act, there is no presumption as to his general authority, so that one dealing with him must ascertain the extent of his authority.
    Appeal from Woodruff Circuit Court, Northern District: E. D. Robertson, Chancellor;
    reversed.

      8. M. Bone, for appellant.
    1. The appellant was entitled to an instruction presenting his theory of the case, and it was error therefore to refuse the requested instruction on the subject of the authority of the agent. Appellee was bound by the contract and agreement made by its agent, unless appellant had actual or constructive notice that he had no authority to make it. It was within the scope of his apparent, if not real, authority to make the contract. 49 Ark. 320; 96 Ark. 456; 140 Ark. 306; 159 Ark. 524; 2 C. J. 573; 132 Ark. 371. Thoma was an admitted agent, and appellant had the right to presume, in the absence of notice to the contrary, that he was a general ag’ent, clothed with authority coextensive with its apparent scope. Id. 55 Ark, 627; 81 Ark. 202; 104 Ark. 150.

      2. The court’s instruction to the effect that, if the jury found from a preponderance of the evidence that Thoma was a special agent, the burden was on those who dealt with him to know the extent of his authority, was in the face of the evidence, and not a correct declaration of the law with respect to limited or special agency. 112 Ark. 63; 137 Ark. 418; 1 Mechem on Agency, 737; 132 Ark. 371; 21 R. C. L. 907.
    3. The contract in this case had been performed on the part'of the plaintiff, and the court’s fourth instruction w ts therefore erroneous, since the doctrine relative t< mutuality did not apply. 96 Ark. 181, 131 S. W. 460; PO Ga. 416; 123 Ky. 854; 97 S. W. 772; 8 L. R. A. (N. S.) 433; 124 Am. St. Rep. 384; 74 S. W. (Ky.) 724; 91 A? k. 367.

      1[. M. Woods and J. F. Summers, for appellee.
    No contract was proved. It does not appear that •appe lant was under any obligation whatever to put out any ¿mount of timber. 96 Ark. 184. If Thoma made proi uses to scale the logs in question, there was no con-side .-ation therefor, and a scale could only be consumma1 id by delivery, that is by scale and acceptance. 95 Ar] . 421.
   Wood, J.

This is an action by the appellant against the appellee to recover damages for an alleged breach of cot'.tract. Appellant alleged that appellee is an Arkansas corporation, having its principal place of business at Augusta, Arkansas, and engaged in the manufacture of staves and heading and in the purchase of timber for such purposes. Appellant alleged that he entered into a contract with the appellee by which the appellee agreed to buy and appellant agreed to sell certain lots of timber that appellant would cut and deliver to the appellee on the bank of Black River, at Lockhart; that the appellee agreed to buy all the timber that appellant would cut and deliver at Lockhart on the date of the contract, about the 26th of August, 1920, not exceeding six or seven hundred thousand feet in all, until January 1,1921; that the appellee agreed to pay the appellant the sum of $35 per M log feet for all .the ash and other hardwood, and the sum of $25 per M log feet for all gum and .other soft wood; that appellant entered upon the performance of the contract, and cut and delivered two or three lots of logs, which the appellee took up and paid for at contract prices; that, prior to January 1, 1921, appellant cut and delivered at Lockhart, for the appellee, 71,139 feet of soft wood (gum and elm) which, at $25 per log M, amounted to $1,778.45, and cut and delivered 7,850 feet of hard wood, principally ash, which, at $35 per M log feet, amounted to the sum of $274.05, making a total value of the timber so delivered at the contract price $2,052.50. The appellant further alleged that, after the timber was delivered at Lockhart, the appellee agreed to take the timber up, scale it, and pay for same at the contract price; that it did boom a part of the timber, but wholly failed' to pay appellant for any part thereof, though payment had been frequently demanded; that the batch of logs so delivered to appellee had practically disappeared, and that appellant had realized nothing out of them. The appellant prayed for judgment in the sum of $2,052.50, with interest thereon from January 1,1921.

The appellee, in its answer, admitted that it was a corporation and had its principal place of business at Augusta, Arkansas, and that it was engaged in the manufacture of staves and heading and the purchase of timber for such purposes. It denied specifically all the other allegations of the complaint.

The appellant testified that, on or about the last of August, 1920, lie had some timber contracted for, and went to Pete Thoma, the agent of appellee at Augusta, to see if he was getting all the logs he wanted, and Thoma said he was not. Appellant asked him what his price was, and he said $25 for the gum and elm and $35 for the ash. Appellant asked him how much he would take, and he said he would take all appellant put out, if it is six or seven hundred thousand feet. Appellant told him that he (appellant) would put out next week for him, and he scaled three different lots appellant put out. After appellant made the contract with him, appellant kept teams going, and got some saws and went to hauling next week. Appellant was to deliver the logs on the hank of Black River, at Lockhart. Appellant delivered three hatches of logs at Lockhart, and received the last check for these about October. Appellant delivered 71,000 and some odd feet of soft timber and 7,000 and some odd feet of ash timber, which Thoma agreed to scale and pay for, but did not do so. A man by the name of McGill had a batch of logs there, and Thoma came down to scale these logs. After he finished scaling McGill’s logs, appellant asked Thoma if he wasn’t going to scale appellant’s logs, and Thoma replied that he didn’t have time then, but that he would be back in four or five days to scale them; he said finally that the company would not let him take up the logs,- and he never did anything more about it. They boomed this entire bunch of logs, and Thoma said that he didn’t want them to get away. All the logs appellant is suing for were included in this boom. Appellant means by booming them that Pete Thoma tied them together so that they eoulcl not get away. Appellant tried in every way to get Thoma to scale them. Appellant demanded payment. There was no dispute about the price, but Thoma just refused to take them.

Other witnesses testifying on behalf of the appellant substantially corroborated his testimony.

The testimony of Pete Thoma, on behalf of the appellee, was substantially to the effect that he was employed by the appellant in 1920 as log buyer, and was authorized to buy timber on the bank of the river, but he had no authority to contract for future delivery. He did not make any contract with the appellant for future delivery of logs. He bought some timber from appellant in 1920, but did not have any time contract with him, and did not agree to scale and take up any of the timber in controversy.

Massey testified -that he was employed by the appellee, and that it was his duty to buy and scale logs generally. He employed helpers, and employed Pete Thoma to buy logs on the bank, scale, raft and deliver them, and pay for them in the regular channel. Witness had no authority to employ help, or to authorize an agent to buy timber on time. Pete Thoma had authority in 1920 to buy timber on the bank of the river, and did buy.

The superintendent of the appellee testified that Thoma was appellee’s agent in 1920 to buy, and had authority to buy logs for the appellee. He bought batch after batch and sent them in, and appellee paid for them. Appellee knew he was buying, and held him out as their agent to buy. He did not have authority to make contracts for future delivery, and did not make any such contracts. .

The cause was submitted to the jury upon instructions to which we will later refer. The jury returned a verdict in favor of the-appellee. Judgment was rendered in- its favor, from which is this appeal. •

1. The testimony on behalf of the appellant tended to show that appellee agreed to take all the gum and elm logs at $25 per M log feet, and all the ash logs at $35 per M log feet, that the appellant would put out, amounting to six or seven hundred thousand feet, and that the appellant went to work under the contract and put out 71,139 feet of soft wood and 7,850 feet of hard wood at the contract price, for which amount appellant instituted this action. Appellee defends the action on the ground that there was no contract for the payment of these logs, because it lacked mutuality, and was therefore not binding upon the appellee. The appellee is correct in the contention that the appellant, under this contract, was not bound to put out any'logs, and, if appellee had repudiated the alleged contract before the appellant had entered into the performance thereof on his part, the appellee would not have been liable in damages for breach of the contract. The contract, as alleged, left it entirely optional with the appellant as to whether he would put out any logs for the appellee. There was nothing to bind him to put out any amount of timber, much less the six or seven hundred thousand feet which appellant testified the appellee agreed to buy. Therefore if the appellant were suing the appellee to compel it to take the logs in controversy, or for damages because of appellee’s failure to take the logs, the appellee would not be liable, and appellant could not maintain such an action.

The contract would be unenforceable because of the lack of mutuality, under the doctrine announced in El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, and Emerson v. Stevens Grocery Co., 95 Ark. 421, upon which the appellee relies. But the facts of this record do not bring it within the doctrine of the above cases. The appellant predicates his action upon a contract which he alleged had been performed on his part, and which had been partly performed upon the part of the appellee by receiving and accepting and paying for certain logs that had been delivered under the contract, and by accepting and receiving the logs in controversy, but failing to pay the amount agreed to be paid for the same, for which amount this action was instituted. In other words, the appellant predicates this action upon a contract which, although he was not originally bound by, he had actually performed, by cutting and delivering logs to appellee, for which his action was instituted, and that appellee had received and accepted the same, but had refused to pay for them. The appellant’s complaint stated a cause of action, and his testimony tended to sustain the allegations of his complaint. It was therefore an issue for the jury to determine whether or not the appellee was liable. In El Dorado Ice & Planing Mill Co. v. Kinard; supra, we held: “Where a party, originally not bound, has executed the contract, the doctrine relative to mutuality does not apply. ’ ’

The court submitted the issue raised by the pleadings and the testimony in the case upon instructions which correctly presented appellant’s theory of the case. Among these instructions was instruction No. 7, as follows: “You are instructed that, if you find from the testimony that the defendant’s agent, Thoma, had no authority to contract or buy logs for future delivery, but was only authorized to purchase logs on the bank of the river, and you further believe that Pete Thoma, the agent of the defendant, agreed with the plaintiff to take the logs in controversy after they had been delivered by the plaintiff at Lockhart, on the bank of Black River, at the price alleged in plaintiff’s complaint, and that defendant, through its agent, accepted and boomed the logs in question, that would constitute an acceptance of the logs, and your verdict will be for the plaintiff.”

The court, however, after giving instructions which correctly presented appellant’s theory of the ease, gave, at the instance of the appellee, among others, the following instructions: “No. 3. You are instructed that, if you find from the testimony that Thoma was buying timber under the direction and authority of Massey, the general agent of the defendant, to procure logs, and that his instructions from Massey were to buy only logs on the bank and for immediate payment, then he was a limited or special agent, and could not bind the defendant beyond his authority, and, if you so find, your verdict will be for the defendant.”

These instructions were in conflict, because instruction No. 7, in effect, told the jury that, if Thoma was authorized to purchase logs on the bank of the river, and agreed with appellant to take the logs after they had been delivered by appellant on the river bank, at the price mentioned in the complaint, and accepted and boomed the logs, the appellee would be liable, while instruction No. 3 told the jury, in effect, that, if Thoma had been instructed to buy only logs on the bank of the river and for immediate payment, he was a limited or special agent, and, if the jury so found, their verdict would be for the appellee. It is impossible to reconcile these instructions. Instruction No. 7, given at the instance of the appellant, was a correct declaration of law under the testimony adduced both by the appellant and the appellee.

Instruction number three was also in conflict with other instructions, in which the court told the jury that the apparent authority of an agent is that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing, and that the principal would be bound by the act of his agent within the scope of his actual authority and within the apparent scope of his authority. Instruction No. 3 was not only in conflict with these instructions, but it was calculated to confuse and mislead the jury by telling them that, if Thoma was a limited or special agent, then he could not bind the defendant beyond his authority as such agent, whereas the law is as announced by this court in Pierce v. Fioretti, 140 Ark. 306, where we said: “Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to. have by reason of his actual authority which he has, such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.” And in Three States Lumber Co. v. Moore, 132 Ark. 371, where we said: “The law is that an agent, acting within the apparent scope of his authority, though in violation of specific instructions, may bind his principal in dealing with one who has no notice of the restrictions upon the agent’s authority. An exception to the rule is that, where the agency is special and not general, that is to say, where his authority is to be confined to a single transaction or to a particular act, there is no presumption as to the general authority, and one dealing with him must ascertain the extent of his authority. 'But one dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority coextensive with its apparent scope. ’ ’

For the error in giving appellee’s prayer for instruction No. 3, the judgment will be revérsed, and the cause will be remanded for a new trial,