text:
    Conway v. Summers.
    Opinion delivered March 26, 1928.
    1. Highways — method op road working-^-repeal op special act.— Sp. Acts 1911, p. 1015, relating to the working of public roads in cities and towns in Faulkner County, held repealed by Sp. Acts 1919, p. 222, the latter act providing a complete scheme for road work in such county.
    2. Statutes — title op act. — While the language of the title of an act is not controlling, it has some force in interpreting the meaning of the lawmakers, when such meaning is otherwise in doubt.

      3. Highways — distribution of road funds. — Sp. Acts 1919, p. 222, conferring power on the Faulkner County Court over the expenditure of county funds on public roads and bridges, was repealed by Acts 1927, p. 221, which provides for appropriation of 50 per cent, of the road tax collected on real and personal property situated within cities of the second class for improvement of streets in such cities.
    4. Highways — distribution of road funds. — Acts 1927, p. 221, rel- . ative to distribution of the road tax collected in cities of the second class, held to apply to taxes levied in 1926 and collected for the year 1927, as well as to taxes levied and collected thereafter, in view of § 2, making the act applicable to the year 1927 and future years.
    Appeal from Faulkner Chancery Court; W. E. Atkinson, Chancellor;
    reversed.

      Geo. F. Hartje, for appellant.

      Guy E. Williams, for appellee.
   Mehaffy, J.

The appellant, a city of the second class in Faulkner County, Arkansas, brought this suit against the appellee, the sheriff and collector of Faulkner County, and alleged, among other things, that the appellee had in his possession the sum of $6,000, collected within the corporate limits of Conway, and that the city of Conway was entitled to 50 per cent, of the amount.

The defendant filed a demurrer on the ground that, by virtue of the provisions of special act of 1911 and 1919, the provisions of act 81 of 1927 did not apply to the city of Conway, in Faulkner County, in so far as the provision of the three-mill road tax is concerned; and second, that, under the provisions of act 81 of 1927, the 50 per cent, division did not apply to and affect the division of the said road tax levied and collected by the defendant for the year 1927.

Act No. 361 of Acts of 1911 is a special act, and is entitled, “An act to better provide for the working’ of public roads in cities and towns in Faulkner County,” and to that end provided for the expenditure of not less than one-third of the road tax collected in any such city or town on the roads situated in such city or town.

Section 1 of the act provides that not less than one-third of the tax collected on property located in any city or incorporated town in Faulkner 'County, Arkansas, under the provisions of an act of the General Assembly of Arkansas approved'May 8, 1897, entitled “An act to provide for levying a road tax for working roads and highways, repairing and building bridges, ¡and for other purposes,” shall be expended in working and making public roads and buildings'and repairing public bridges located within said city or town, respectively. And it shall be the duty of the county court of said county, upon the examination and approval of the annual report and settlement of the tax collector, to determine the amount of road tax that has been paid on property located in any city or town in said county, and to appropriate and set apart not less than one-third of the amount of said tax collected in such city or town, to be expended on the roads and bridges in such city or town;”

Under the provisions of this act the city of Conway, the appellant, would be entitled to not. less than one-third of the tax-collected on property located in said city.

One of the questions to be determined by this court is whether this act was repealed by act 143 of the Acts of 1919. Act 143 is entitled, “An act to change the method of working public roads in Faulkner County, Arkansas. ’ ’ And § 1 provides that the county court shall have power to provide, by proper order of said court, for the expenditure -of funds of the county and funds arising from the levy of the three-mill tax: in said county, in any road district or on any public road or bridge or culvert of said county, regardless of the district in which said tax has been, or shall be paid.

While the writer does not believe that the act of 1919 repeals the act of 1911, a majority of the judges are of opinion that it does, for the reason that the act of 1911 is an act to provide for the working of public roads in cities and towns in Faulkner County, and the act of 1919, as expressed in-its title, is an act to change the method of working the roads in Faulkner County, Arkansas, and the act of 1919 provides a complete scheme for working the roads and highways and collecting and distributing the road fund in said county. And the act of 1919 covers the entire subject of working roads in Faulkner County.

This court said in a recent case:

“There are certain well settled rules to determine whether or not a former statute has been repealed by a later one, but there is always some difficulty, in applying these rules, in determining whether or not ¡a repeal has been effected in a given instance. It is a rule of universal application that implied repeals are not favored, and yet it is equally well settled that there is an implied repeal where there is found irreconcilable repugnance between the two statutes, and also when the Legislature appears to have taken up the whole subject anew and covered the entire ground of the subject-matter of the former statute. In a recent decision we undertook to cover this subject in the following statement: ‘It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible; but there are two familiar rules or classifications applicable in determining whether or not there has been such repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one which governs the subject, so far as relates to the conflicting provisions, and to that extent only. * * * The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject-matter of a former statute, and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new’.” State v. White, 170 Ark. 880, 281 S. W. 678.

The above ease cites a number of cases in the application of the above principle, and proceeds:

“Applying those tests to the statute now under consideration, we are of the opinion that, in enacting the last statute, the Legislature took up the whole subject anew as a substitute for the former legislation on the subject, and that it operated as a repeal of the former statute.”

It is therefore the opinion of the court that, under the authority of the case last cited, the act of 1919 repealed the act of 1911; that it was a substitute, a change of the method of working public roads' in Faulkner County, and, being a substitute, repeals the act of 1911.

It will be observed that the title of the act of 1911 is, “To better provide for the working of public roads,” etc., and the title of the act of 1919 is, “To change the method of working public roads in Faulkner County.” While the language of the title of an act is not controlling, as was said in the case of State v. White, it has some force in interpreting the meaning of the lawmakers when otherwise in doubt, and the language of this caption leads to the conclusion that the lawmakers intended it as a substitute for former legislation, and the caption, as we have said, recites that it is an act to change the method of working public roads in Faulkner County, Arkansas.

The next question is whether act 81 of the Acts of 1927 repealed act 143 of the Acts of 1919. The title oí; act 81 of 1927 is as follows: “An act to appropi’iate 50 per cent, of the road tax collected on real and personal property situated in cities of the second class for improvement of the streets in such cities.”

Section 3 of act 81 of 1927 is as follows: “That the provisions of this act shall not rescind, repeal or otherwise amend any special law now in force which governs the division of similar road taxes in any city of the second class, within the purview of this statute.”

The act of 1919 does not govern the division of the road taxes. It merely provides that the county court of Faulkner County shall have power to provide, by proper order of said court, for the expenditure of the funds of the county and funds arising from the levy of the three-mill tax in said county in any road district or upon any public road or bridge or culvert in said county, regardless of the district in which said tax has been or shall be paid.' But it does not provide for a division, and the act does not govern the division of road taxes. It simply leaves the question of the expenditure of the road fund to the county court as it was prior to the act of 1911.

The city of Conway, in Faulkner County, is therefore entitled to 50 per cent, of all road taxes collected by the tax collector in Faulkner County on property situated within the corporate limits of the city of Conway.

It is earnestly contended that, even if the provisions of act 81 of 1927 are ¡applicable to the city of Conway, said provisions do not apply for the year 1926, as the road tax for the year 1927 will not be due until the year 1928. The act of 1927 was approved March 4, and § 2 of said act is as follows:

“That the provisions of this act shall apply to the road-tax collections on property within the corporate limits of said cities of the second class in this State for the year 1927 as well as for future years.”

We think that this section means taxes collected in the year 1927. That seems to have been the intention of the Legislature as contained in § 2 of the act. And the Legislature, of course, had the right to enact this statute, and we therefore conclude that the provisions of the act apply to collections for the year 1927; that this means taxes collected in 1927, and not road taxes levied in 1927.

The decree of the chancery court is reversed, and the cause remanded .with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. ■


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Bennett.
    Opinion delivered March 26, 1928.
    1. Carriers — liability for death op cattle. — Under allegations that a carrier accepted cattle for shipment knowing that part of them were weak and thin, and which should have been kept separate from bulls and steers, but that the carrier carelessly turned the cattle together, causing the death of 24 cows, evidence held to sustain a finding that the injury to the cattle resulted from the railroad’s negligence.
    2. Appeal and error — conclusiveness of verdict. — A verdict supported by substantial evidence is conclusive on appeal.
    3. Carriers — instruction as to negligence. — Where a shipper alleged that the railroad accepted cattle for shipment knowing that some of them were thin and weak, and that it carelessly turned the weak cattle with bulls and steers, thereby causing the death of 24 cows, defendant’s request for instruction that defendant was not required to furnish separate pens for weak and thin cattle, and that, if the jury found from the evidence that the cattle were killed in pens through no carelessness of defendant, the verdict should be for it, was properly modified by adding that, unless the jury found defendant negligently turned strong cattle in with the weak, causing the injury complained of, it would not be liable.
    4. Trial — refusal of instruction ignoring issue.' — Where a shipper alleged that the railroad accepted cattle for shipment some of which were weak and thin, and that it was necessary to separate them from the bulls and steers, and that, while the cattle were in the railroad’s custody, it carelessly turned them together, thereby causing the death of 24 cows, it was proper to refuse defendant’s instruction that, under the rules of the experiment station, the railroad was not liable for injury of the stock in quarantine pens while being held to be dipped, and that, if the cattle died in pens while being dipped, it was not liable, such instruction ignoring the question -of the railroad’s negligence in mixing the weak with the strong cattle.
    Appeal from Faulkner Circuit Court; W. J. Wag-goner, Judge;
    affirmed.

      Thomas B. Pryor and Harvey G. Combs, for appellant.

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

The appellees, plaintiffs below, filed a complaint in tbe circuit court, alleging tbe delivery to the appellant, defendant below, at North Little Rock, of a shipment of 242, head of cattle to be transported by the defendant to East St. Louis, Illinois. That the defendant accepted said cattle for shipment. It is alleged that some of the cattle in said shipment were weak and thin, and it was necessary that they be separated from the bulls and steers, and that the defendant had notice of these facts, hut that, on January 8, 1927, the cattle having been delivered on the first of January, while said cattle were in the custody of defendant, it carelessly and negligently turned said cattle together, thereby causing '24 of the said cows to be killed by the bulls and steers. Said cows that were killed were of the average value of $25 each, and, by reason of the negligence of the defendant, plaintiff prays judgment for $600.

Defendant filed answer, denying specifically each material allegation in the complaint.

There was a jury trial; and a verdict in favor of the plaintiff for $350, and judgment for that amount, from which this appeal is prosecuted.

The plaintiff’s testimony tended to show that the cattle were delivered to and accepted by the defendant on the first day of January; that they were all right, and none crippled; that the bulls and steers were put to themselves, and the yearlings ¡and small cows to ‘ themselves; that when Bennett, the plaintiff, was in North Little Rock, on the 8th or 9th of January, they were all mixed up; and a portion of them dead. Some of them trampled to death, some were hooked, and some of them had lost their calves. They were crippled up in every way they could be. That plaintiff arranged for six pens, and paid $15 per pen. That it was arranged with the stock foreman to keep the thin cattle separate. It is not good practice to put bulls and steers in a close pen with calves and weak cows. That 24 of them died as a result of-injuries. The cattle were dipped, and none died from dipping. When they were unloaded they were all put in pens together, but were cut out as'quickly as plaintiff could cut them out. The average pen holds a car of cattle. The steers and bulls were loaded together. There was a load of small yearlings in the. shipment. Some of them were thin and weak. The weather was cold at the time of dipping, and the cattle were held for two dip-pings. Some of them might have died from dipping, but those that were trampled, smashed, did not. Twenty-six were crippled. The cattle.came from Louisiana, a tick-infested area. The shipper signed the usual shipper’s uniform contract. The contract signed was the one prescribed by the Interstate Commerce Commission. The contract was here introduced, and plaintiff Bennett admitted that he signed it, and admitted making the affidavit required by the provisions of the Arkansas rules and regulations and the supplemental regulations issued by the Department of Agriculture for the movement of cattle from tick-infested areas.

After the cattle were unloaded they immediately cut out the weak, thin cattle, and put them to themselves. Did not rent any pens, but understood they were to have six pens. They had six carloads of cattle. The railroad company does not dip them, but they are dipped by the government. Witness later found them in four pens. One pen had weak cattle, and in the others they were all mixed up.

Another witness testified that the cause of the death of the 24 cattle was fighting’ and being ridden by big males. They were getting along all right until they were turned together. Does not think they died from dipping, and testified that the average cost of cattle was around $26. They .shipped the big and the strong and the weak all together. They were unloaded together, and, after unloaded, the stock foreman was requested to separate the cattle, or permission was requested from him to separate the cattle, and he directed them to go ahead and do it. It is not true that most .of the cattle that died were weak.

On the day after they came to North Little Bock the weak ones were separated from the steers and bulls. There was evidence of the cattle having been trampled. The evidence on behalf of the defendant tended to show that this was a mixed load of cattle, some big ones and some weak and poor. It was just a mixed shipment. That they were held for two dippings, from seven to twelve days. A government inspector does the dipping. The railroad company has nothing to do with it. They furnish the pens, and the shipper pays for the feed. After they had been there a day or two, the shipper asked if he could get pens to separate the cattle. Witness told him it was all right, but they would probably have some heavy shipments on Saturday, and if they did, they would have to put them back together, so they could have the pens for other stock. They were separated in seven or eight and sometimes nine pens. When they were separated, the weakest ones out of each car were put in a pen by themselves. They wouldn’t get anything to eat when with the other cattle. Some of the cattle in that pen died after the first and before the second dipping. It was cold and rainy. The cattle came on the first of January, and they were taken out on the 12th. They were dipped the second time on the 10th. On the night of the 7th six carloads of other cattle arrived there, and twelve loads on the morning of the 8th, for dipping. Defendant has 20 quarantine pens with sheds, and four open. After the cattle are dipped, they must be put in a covered pen. Every shipper of live stock signs a uniform live stock contract, the' one introduced here. The pens are locked, and the railroad employees'keep the keys, but they are under the jurisdiction of Federal officers. Eailroad employees transferred the cattle.

The testimony of the plaintiff in rebuttal was to the effect that the cattle were in four pens after they were rearranged by the railroad company. One pen contained, as nearly as they could pick them out, the weakest. The hurt and crippled ones were in another pen. They were shipped all together. They were getting along all right before the railroad company changed them up, and they didn’t die from those injuries. Some of the cattle died from being trampled.

The person who fed them testified that he found the cattle trampled up and crowded pretty had. It appears that there were too many in the pens. The hulls and steers were mixed up generally with the weak and thin cattle. The cattle that were down appeared to have been trampled and gored. Some of the cattle were weak and thin. • One pen of weak thin cattle were put together and kept together until morning, when they were all mixed up. It was not big steers that were killed. One of the steers died. At one time, while witness was feeding them, they were in as high as seven pens.

Appellant insists for reversal of this case on- the ground that the defendant acted as a person of ordinary prudence would have acted under the circumstances, and we think that the only question for this court to determine is whether there was any substantial evidence upon which the jury might have found that the injury to the cattle resulted from the negligence of the defendant. If there is such evidence of negligence, this would justify the jury in finding a verdict in favor of the plaintiff.

The plaintiff introduced testimony to show that, when they delivered the cattle to the railroad company, they were all right, and none of them crippled, and that the hulls and steers were picked out and put to themselves and the yearlings and small cows put to themselves, and that on the 8th or 9th they were fall mixed up, and a portion of them dead. The testimony shows that it is not safe to put the hulls and steers with the weak cattle and calves, and that, after they were delivered to the defendant, they 'were all mixed up, and there is no testimony tending to show that, even when the railroad company had to have some of its pens, the bulls and steers which caused the injury mig*ht not still have been kept to themselves, and not mixed up with the weak cattle. Whether or not there was any negligence in this respect was a question of fact for the jury, and its finding is conclusive on this court.

The evidence of negligence is rather meager, hut that is not la question for this court, if there is any substantial evidence to support the verdict, and we think there is some substantial evidence upon which the verdict of the jury could be based.

It is next contended that the court erred in its refusal to give instruction No. 1, requested by the defendant. That instruction is as follows. “The court instructs you that the defendant is not required to furnish separate pens to separate the weak and thin cattle from the strong; and if you find from the evidence in this case that the cattle were killed in the pens in North Little Rock through no carelessness or negligence on the part of the defendant, its agents or employees, then your verdict must be for the defendant. ”

The court refused to give the instruction as above set out and as requested by the defendant, but added, “unless you further find.that the defendant negligently turned the strong cattle in with the weak, causing the damage complained of.” We think the instruction as given by the court was correct. Whether the defendant was required to furnish separate pens to separate the weak from the strong or not, if it did do that, and then negligently turned the strong cattle in with the weak, causing the damage complained of, it would be liable, and there was no error in the modification of the instruction.

It is also contended that the court erred in its refusal to give instruction No. 2 requested by the defendant, which is as follows: “The court instructs you that, under the law and rules promulgated by the Board of Control of Agricultural Experiment Stations, the railroad company is not liable for damages where stock is injured and dies in quarantine pens in North Little Rock, through no carelessness or negligence of the defendant, its agents or employees, while being held to .be dipped, and if you find from the evidence in this case that the cattle died in said quarantine pens, while being held to be dipped, then your verdict must be for the defendant.”

The above instruction ignores the question of negligence, which defendant denies, the latter part of the instruction stating to them that, if they died in the pens while being held to be dipped, the defendant was not liable. That would be true if there was no negligence Which caused the injury. But if they were separated, and the defendant afterwards negligently put them together, and this negligence caused the injury and damages, the defendant would be liable.

Instruction No. 1, given at the request of the plaintiff, was as, follows: “The court instructs the jury that, under the law, it was the duty of the defendant- to use reasonable care in the handling of the cattle belonging to the plaintiff, and if it failed to use reasonable care in the handling of said cattle, and they were injured as a result thereof, then you should return a verdict in favor of the plaintiff.”

That submits the question squarely to the jury, and directs them, if the injury was caused by the negligence of the defendant, to find for the plaintiff; no matter what their duty was -with reference to furnishing pens or keeping cattle to be dipped, if they were guilty of negligence in mixing the cattle as they did, and that negligence caused the injury, they would be liable. If it was not guilty of negiigénce, there would be no liability. But, having undertaken to keep the cattle, and having been notified that the bulls and steers must be kept separate or injury would result, then if, after that notice, the defendant’s employees negligently or carelessly mixed the cattle, and that negligence or carelessness caused the injury, the carrier would be liable. And in all of the instructions given by the court the jury are told that, if the defendant was negligent, plaintiff could recover, and it was made perfectly clear to them that the defendant wias entitled to a verdict in its favor unless the proof showed negligence on the part of the defendant that caused the injury. They were properly instructed as to what constituted negligence, and in fact there is no controversy between the parties as to what constitutes negligence, both parties agreeing that, if the defendant failed to exercise the care and diligence that an ordinarily prudent man would exercise under the circumstances or under similar circumstances, they would be negligent. '

The jury were properly instructed. .It was made perfectly clear to the jury that, before the plaintiff could recover, the evidence must show that the defendant was guilty of negligence which caused the injury, and that if the evidence did not show negligence on the part of the defendant, plaintiff could not recover, And, as we have already said, the question of whether or not the defendant was guilty of negligence was a question of fact, and we think the evidence is sufficient to support the verdict, and the case is therefore affirmed.


author: McHaney, J.

text:
    Andrews v. Jenkins.
    Opinion delivered March 26, 1928.
    Insurance — agent’s commissions. — Where an insurance agent was entitled, under his contract, to a commission on premiums aetu- ■ ally collected and accounted for in cash, he was not entitled to commissions on applications procured until the notes received in payment of premiums were actually paid in cash.
    Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge;
    reversed.

      Thomas B. Pryor, Jr., and Robert H. Harper, for appellant.

      O. O. Jenkins and Dobbs & Young, for appellee.
   McHaney, J.

Appellant is engaged in the life insurance business, being the manager of the Gfuardian Life Insurance 'Company. He employed appellee, Jenkins, as an agent to solicit applications for life insurance for said company as .a subagent under him. He required said Jenkins to give a bond, conditioned as follows:

“If the agent shall faithfully discharge the duties as agent of the company, under present appointment or any future appointment, or in any other capacity in which he may hereafter be employed by the company, and shall, upon demand, pay over and account for all moneys and other property belonging to the manager or to the company, including any advances or other indebtedness, and shall at all times have and keep the manager and company harmless from any loss or damage growing out of collections made by the agent or his agents, or out of any misconduct or violation of any of the terms of said contract, then this obligation shall be null and void; otherwise to remain in full force and virtue. And it is expressly understood and agreed that the duties and emoluments of the agent may be altered or varied, or he may be reappointed, or be employed in any other capacity from time to time without notice to us or any of us.”

This bond was executed by Jenkins as principal and appellee, McCord, as surety. This arrangement began in the early part of 1924 and continued until the fall of that year, when Jenkins ceased working for appellant. Appellant -brought this suit against appellees to recover the sum of $220.98, being the amount of moneys advanced appellee, Jenkins, from time to time, less commissions earned. Appellee admitted that he had been advanced the sum of $270 by appellant, but claimed that the commissions earned by him on policies written amounted to $275.36, which was more than sufficient to cover the advances made. The only controversy with reference to the account appears to arise because of notes taken for the Frank Schonebeck policy, on which the commission, if paid, would amount to $164.20, and the Elgin L. Byrnes policy, the commission on which amounted to $22.44, for both of which notes appear to have been given. With reference to the Byrnes policy, appellant charged appellee with $22.44, and on August 11, 1924, credited his account by note from Byrnes in the sum of $22.44. This appears to be a cross entry, and by reason thereof appellee has not been credited with any commission on this policy. "We are unable to tell from the evidence whether this note was paid, and, if so, we do not find any further credit in appellee’s account for the commission thereon.

With reference to the Schonebeck notes, none of them were ever paid, and appellant charged in his account against appellee $36.95 as the net amount paid the company for the time the policy was in force. However, it dismissed this item from its account, and is not claiming that it has the right to charge appellee therewith.

We do not'think appellee is entitled to any commission on the Schonebeck policy, as the notes were never paid. The contract between them plainly provides that a commission is to be paid only on premiums actually collected and accounted for in cash, paragraph eight of the contract being as follows: “The principal will pay the ag'ent, in full compensation for all his services, commissions as shown by the following schedule, on premiums actually collected and accounted for. in cash by him, to the principal, during the continuance of this appointment, on policies issued upon applications effected by the agent in said territory. ’ ’

While it is true that the Schonebeck notes were taken by reason of the authority of appellant, yet this did not have the effect to change the commission agreement, as above set out. True, he was authorized to write the Schonebeck application for a policy, and to accept notes for the premium, but nowhere in the evidence dp we find that appellant agreed that such notes should be treated as cash and that appellee’s commission should'be paid, regardless of whether the notes were collected. This being true, we are of the opinion that the written provision in the contract of employment providing for the payment of commissions, is controlling, and that appellee, Jenkins, would not be entitled to a commission until such notes were actually paid.

The court therefore erred in giving instructions Nos. 1, 2 and 3 at the request of appellee. For the errors indicated the judgment will be reversed, and the cause remanded for a new trial.


text:
    Broadway Bank of Kansas City v. Mason.
    Opinion delivered March 26, 1928.
    'i. Bills and notes — defense against innocent purchaser. — In an action to recover on notes by one who acquired them in due course for value and before maturity, the defense of a failure of consideration was not available, though such matter might have been successfully pleaded as between maker and payee.
    2. Bills and notes — sale op patented articles. — Under Crawford & Moses’ Dig., §§ 7956-7958, requiring negotiable instruments in payment of patented machine, implement, substance, or instrument to show on its face that it was executed for such consideration, notes executed as part payment for emergency medicine cases bearing a registered trade-mark need not show their consideration, since a registered trade-mark does not constitute a patented article within the meaning of the statute.
    S. Bills and notes — statute as to sale of patented articles.— Crawford & Moses’ Dig., §§ 7956-7958, relating to the sale of patented articles, being both penal and criminal, must be strictly construed.
    4. Bills and notes — statute as to sale of patented articles.— Crawford & Moses’ Dig., §§ 7956-7958, requiring negotiable instruments executed as consideration for patented articles to show such fact on their face, held inapplicable to notes given for patent right territory; it being the sale of specific articles or things that is prohibited by the statute under the condition named.
    Appeal from Faulkner Circuit Court; W. J. Wag-goner, Judge;
    reversed.

      George F. Hartje, for appellant.

      R. W. Robins, for appellee.
   McHaney, J.

Appellant brought this action against appellee to recover ion four promissory notes of $200 each, two ’dated April 21, 1925, payable three and five months after date, and two dated April 30, 1925, payable six and seven months after date, at the Farmers’ State Bank, Conway, Arkansas, with 10’ per cent, interest from date until paid. ' These notes were made payable to A. D. Harmon, an employee or salesman for the Home Sales Company, a Missouri corporation, and by him indorsed and delivered to J. F. Cox, president of the Home Sales Company, who in turn'transferred them to appellant before maturity, in due course, as security for a loan by appellant to Cox. The consideration for the notes was the payment of $1 each upon 800 “Home Emergency Cases,” consisting of a small wooden cabinet and a quantity of medicine contained in a number of bottles, with the initials on each bottle “H.E.C.,” presumably representing- the words “Home Emergency Case,” and on each bottle is “Registered U. ¡S. Patent Office.” Appellee at the same time entered into a contract with the Home Sales Company through said Harmon, the pertinent parts of which are as follows:

“In consideration of the payment and advance of one dollar each upon eight hundred home emergency cases, the receipt of which is hereby acknowledged, the Home ’Sales Company agrees to furnish to the undersigned special dealer that number of home emergency cases, at $5 each, f. o. b. cars Kansas City, Missouri, during a period of one year from May 25, 1925, as they shall be ordered by him or Ms authorized agents, in any quantity desired, not to exceed the number specified above, upon payment of the balance of four dollars for each case ordered; the said dealer shall not be bound to pay this four dollars upon any case until he orders it delivered to him. The home emergency cases herein contracted for shall be sold by said dealer or his representatives in the following district: County, Lonoke; State, Arkansas. Number of cases, 800. We agree during the specified period not to place the home emergency cases on sale with any other dealer in the said district, and the said dealer on his part agrees, not to offer them for sale outside this district without our written consent.”

He was able to sell only six of the home emergency cases, for which he paid the balance due of $4 on each case. There is practically no dispute in the evidence. The proof on the part of appellant shows that it acquired the notes for value, before maturity, and without notice of any defects or infirmities therein, or of any defense the maker of said notes might have against the payee. Appellant had taken other notes from -Cox under similar conditions, and these notes had been paid by the makers. The Home Sales Company was not a customer of appellant bank, and it had no business dealings with it, neither was Harmon a customer thereof, but Cox had been a customer of said bank for some two years, and was known to appellant as a reputable, responsible business man. Neither the cases nor the medicine therein was patented, but the trade-mark on the bottles, “H.E.O.” had been registered in the U. S. Patent Office as a trade-mark. Appellee testified that, at the time he gave Harmon the notes, 'Cox was with him, and showed .him how much money he could make out of the deal; that he understood that he was to give the notes and pay the company $4 per case f or the medicine as he sold it, and had the exclusive right to sell same in Lonoke County; that Harmon agreed to help him sell the medicine, and he was to pay the notes out of the proceeds of the sales thereof; that he told Harmon he was no salesman, and he said he would help- him sell it, but that he has not seen Harmon since; that he has not made any money out of the contract. On August 21,1925, appellee wrote appellant that his agreement with Harmon was that he was to sell the medicine before he paid all the notes, and that he had not sold any of the medicine yet, but he believed-he could sell it later in the crop season, and said: “Now if you will have patience will pay when I can. I have got me a new car, and I am going to start out to try again to sell it soon.”

The case was submitted to the jury, and a verdict was returned in appellee’s favor.

We think the court erred in submitting the case to the jury at all. Appellant requested the court to instruct the jury to find for it, which the court refused to do, and this is assigned as error-. In our view of the case, appellant acquired the notes in due course for value and before maturity, without notice of any defects or infirmities therein. 'Section 52 of the Negotiable Instrument Law, § 7818, C. & M . Digest, defines a holder in due course as follows: “A holder in due course is a holder who has taken the instrument under the following’ conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

This was the law in this State prior to the Negotiable Instrument Act. Bothwell v. Fletcher, 94 Ark. 100, 125 S. W. 645; Holland Banking Co. v. Booth, 121 Ark. 171, 180 S. W. 978. Section 56 of the Negotiable Instrument Act, being § 7822 of C. & M.'Digest, provides what is necessary to constitute notice of defect as follows: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument-amounted to bad faith.” This was likewise the law in this State prior to the Negotiable Instrument Act.

We have examined the testimony carefully, and fail to find anything therein that brings to appellant actual knowledge of any infirmity in the instrument,. or defect in the title of 'Cox thereto, or knowledge of any such facts on the part of appellant that would constitute his action in taking the instrument bad-faith. Undoubtedly, as between appellee and Harmon and Cox, failure of consideration might have been successfully pleaded, as well as fraud and misrepresentation in the procurement thereof. But, as between appellant and appellee, there must be actual knowledge of the defective title or infirmities in the instrument as defined by the statute, or knowledge of such facts as would put him on notice. It is true that appellant had taken other similar notes from Oox in the course of its business dealings with him, but it is shown that such other notes had been satisfactorily taken care of.

The principal defense relied on by appellee is that the notes were given for the purchase of a patented article or patent right territory, and are void because the notes did not show on their face that they were executed for such consideration, and it is claimed that they are void as being in violation of §§ 7956-7958, C. & M. Digest, which are as follows:

“Section 7956. Any vendor of any patented machine, implement, substance, or instrument of any kind or character whatever, when the said vendor of the same effects the sale of the same to any citizen of this State on a credit, and takes any character of negotiable instrument in payment of the s'ame, the said negotiable instrument shall be executed oh a printed form, and show upon its face that it was executed in consideration of a patented machine, implement, substance or instrument, as the case may be, and no person shall be considered an innocent holder of the same, though he may have given value for the same before maturity, and the maker thereof may make defense to the collection of the same in the hands of any holder of said negotiable instrument, and all such notes not showing on their face for what they were given shall be absolutely void.
“Section 7957. The foregoing section shall also apply to vendors of patent rights, and family rights to use any patented thing of any character whatever.
“■Section 7958. Any vendor of any patented thing of any character, >or any vendor of any patent right or family right to use any patented thing of any character whatsoever, who shall violate the provisions of § 7*956, shall, upon conviction, be punished by a fine of not more than three hundred dollars.”

These sections have no application .to the notes in controversy, for the reason that they were not given for “any patented machine, implement, substance, or instrument of any kind or character whatever. ’’ The most that can be said -of the home emergency cases, for which the notes in controversy were given, is that the bottles contained in the case had. a trade-mark on them which had been registered in the U. S. Patent Office. An article bearing- a trade-mark which has -been registered in the patent office is not a patented article, within the meaning of the aforesaid statute, and we do not feel that we. can extend the provisions of the statute to cover a case not clearly included within the language of the legislative enactment.

In the recent case of Green v. Jones, 168 Ark. 423, 270 S. W. 515, the court held that the above sections of the statute did not apply to the lease of a patented article, and that the statutes are both penal and criminal, and must be strictly construed. It is there said:

“The statute is both penal and criminal. For its violation the penalty of the forfeiture of the agreed purchase price of the article sold is imposed, and the note or notes executed for the purchase price which do. not conform to the requirements of. the statute are rendered void in the hands of an innocent purchaser, and, in addition, a fine of $300 may be- imposed for a violation of the statute. As the statute is penal and criminal, it must, for both reasons, be strictly construed.”

The court, in that case, quoted from Black on Interpretation -of Laws, § 114, page 286, in support of its construction that the. statute must be construed strictly. However, we are of the opinion that it does not require a strict construction of the statute to say that an article bearing -a trade-mark which has been registered in the U. S. Patent Office does not come within the provisions -of the above statute, and has no application thereto. Neither does the statute cover notes given for the purchase of patent-right territory. It is the sale of a specific article or thing which has been patented that is prohibited by the statute under the conditions named.

We therefore conclude that the court erred in submitting the case to the jury, and that appellant’s request for ia peremptory instruction should have been given. The .judgment of the circuit court is therefore reversed, and judgment will be entered here for appellant for the amount of the notes and interest.


text:
    Morehart v. A. B. Beeler Lumber Company.
    Opinion delivered March 26, 1928.
    1. Mechanics’ liens — necessity for contract with owner.— Where the owner of a lot did not contract for material ordered by her husband for use in constructing a building thereon, in the absence of a showing of authority of the husband to act as agent for his wife, a materialman was not entitled to a lien under Crawford & Moses’ Dig., § 6906, requiring that the lien of material furnisher or laborer must be under or by virtue of contract with owner or agent.
    2. Mechanics’ liens — notice of lien. — Failure of a materialman to serve the ten-day notice required by Crawford & Moses’ Dig., § 6917, on the owner of a lot is a complete defense to a suit to foreclose a materialman’s lien.
    3. Mechanics’ liens — waiver of defense as to notice. — A question as to a materialman’s failure to give ten days’ notice before filing the lien as required by Crawford & Moses’ Dig., § 6917, is waived unless raised in the trial court.
    Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor;
    reversed.

      Terry & Morrow, for appellant.

      John D. Shackleford, for appellee.
   McHaney, J.

This is a suit by appellee to foreclose a materialman’s lien on lot 17, block 1, Riff el & Rhoton’s Forest Park Highlands Addition to the city of Little Rock, the property of appellant, Maible Morehart. She was jointly sued with her husband, B. F. Morehart, but she alone is prosecuting this appeal,'

On or about the. 18th. day of February, 1926, B. F. Morehart, who was not at the time living with his wife, Mable Morehart, purchased a bill of lumber from appellee with which to build -a house on the above described lot, without any authority from his wife so to do. The material was charged to B. F. Morehart, and was sold and delivered to him, without any consultation with her, and without her knowledge and consent. A short time before the lien expired the agent of appellee asked her for a description of the property, and she gave it to him, and the agent testified that he filed a lien on the lot without giving any notice to her, as provided in the lien statute.

Another agent of appellee testified that, after about 20 months after the sale of the material, and after suit had been filed and judgment entered against the defendants, he went to «appellant and offered to sell the property back to her for $50 cash and the balance on monthly payments, and that she offered $5 a week. Appellant testified that she was the owner of the property in her own right, and that she and her husband were not living together at the time the lumber was purchased; that the first she'knew of the lumber being purchased was on returning home from work, she saw the lumber on the lot; she got in touch with her husband, and was advised that he had bought the lumber; that she told him she didn’t want a house on her property, and he said that it didn’t make any difference what she wanted — that he was going to build a house, and that he would pay for it. She also testified that she telephoned the office of appellee and directed them to get the lumber off of her lot, that she didn’t want a house there. She later moved into the house with her husband, where she lived for about three months, and separated again, and has not lived in the house since; that it is worth about $50; that she didn’t want it, but wanted the lumber company to move it. She also testified that she was not served with a notice before the lien-was filed, and that she had never given her husband authority to.have a house built, or to improve her property in any way.

The court entered a decree foreclosing the lien in , the sum of $137.63, directed the property to be sold, and same has been sold, at which sale appellee became the purchaser.

We think the decree of the chancery court is wrong. In the first place, there was no contract between appellee and the owner of the lot, or her agent, for the purchase of said material, as provided by § 6906, C. & M. Digest. In order for a material furnisher or laborer to have a lien upon the property, it must be “under or by virtue of any contract with the owner or proprietor thereof, or his agent,” etc. This is the plain language of the statute. It is admitted that appellee had no contract with appellant for the furnishing of this material. It is undisputed that the contract was with the husband of appellant, and it is nowhere shown that he was the agent of appellant, with authority to bind her in the purchase of this material. The fact that she saw the material on the lot and knew that her husband was building this house is not sufficient to imply a contract on her part to pay therefor, and there is no testimony in the record to show that she ever agreed to pay for it. There is no alleg*ation in the complaint that B. F. Morehart was the agent of appellant, and there was no proof sufficient to establish this agency.

In the case of Hoffman v. McFadden, 56 Ark. 202, 19 S. W. 753, 35 Am. St. Rep. 101, this court decided th& exact questions now under consideration against the contentions of appellee here. It-was there held that, under the statute creating a lien for work done or materials furnished in making improvements on real property, the lien exists only where the labor is performed or materials furnished under a contract, express or implied, with the owner of the land, or with his agent, trustee, contractor or subcontractor, and'that the husband has no power to make a contract to improve his wife’s property so as to create a mechanic’s lien thereon, unless he had the power and authority to contract for her as her agent; and it was further held that such authority cannot be implied because of the relation of husband and wife, or from.the fact that he assumes to manage her real estate, nor could the agency be inferred because of her knowledge that he is causing improvements to be erected upon her property. In that case, quoting the language of the court, “the 'building erected was located only about 40 feet from a house occupied by the defendant and her husband. She witnessed the progress of the work, and gave some directions to the carpenters as to the manner of executing it. Her husband had expressed a desire to - have the building so constructed that she would be pleased with it, and one of the witnesses testified that ‘she was present every day, and had the work done to suit her. ’ But it is not shown that she manifested any greater interest in the improvement than a wife would usually take in the building of a house upon land belonging to her husband and put up so near to the place of her residence. Nor does it appear that there was any greater deference to her wishes in the plan of the house than is commonly shown by a husband in causing a similar work to be done at bis own expense. The contract for the work was made with the husband, and the labor of the carpenters, was all paid for by him. All the materials purchased from the plaintiff and others were procured on the husband’s order, and, for aught that appears to the contrary, they were sold entirely on his personal credit. The defendant testified that she objected to the erection of the house for reasons which she states; and in this -respect her testimony is supported by that of two other witnesses. She also states that her husband was not authorized to act as her agent, and that she was not consulted about the contract for the improvement, and .had no knowledge of its terms.”

The facts in the above case are very much stronger against the wife than those in the present case, as will clearly be seen, from the statement of facts heretofore made.

In the second place, there was no notice served upon the wife, as provided by § 6917, O. & M. Digest. This statute requires the giving of ten days’ notice before the filing of the lien to the owner or his agvent, that he holds a claim ag'ainst such building or improvement, setting forth the amount and from whom the same is due, and providing that it may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness. This court has held that this statute must be substantially complied with. (Conway Lbr. Co. v. Hardin, 119 Ark. 43, 177 S. W. 408), and that the ten days’ notice must be given. Doke v. Benton Lbr. Co., 114 Ark. 1, 169 S. W. 327, 52 L. R. A. (N. S.) 870. But the question is waived unless raised in the trial court. Whitcomb v. Gans, 90 Ark. 469, 119 S. W. 676.

In this .case, however, the answer raised this defense, and- alleged that no notice had been given appellant of appellee’s claim of lien. This is a complete defense to the action, even though B. F. Morehart might be said to be the original contractor for his wife in erecting such house. Appellee, not having made any contract with appellant for the furnishing of material, but, with her husband, even conceding him to be his wife’s contractor, would be required, under the law, to give the ten days’ notice before filing its lien on her property.

For the errors indicated the judgment will be reversed, and the cause remanded, with directions to disr miss the complaint as to appellant, Mable Morehart, for want of equity. It is so ordered.


author: Hart, C. J.,

text:
    Buchanan v. Halpin.
    Opinion delivered April 2, 1928.
    1. Appeal and error — necessity of motion for new trial. — A motion for now trial is unnecessary where the error sought to be reviewed appears from the judgment record itself.
    2. Mandamus — motion for new trial unnecessary when. — Where the complaint and judgment in a mandamus proceeding, constituting the judgment roll, show that defendant street commissioners failed to comply with the requirement of Crawford & Moses’ Dig., § 5718, by filing annual statements of receipts and disbursements, no motion for new trial is necessary to present the question for review on appeal from a judgment denying the writ of mandamus, as the error appears from the face of the record.
    3. Mandamus — necessity op motion for new trial. — No proof being necessary to establish the allegations of a verified petition for mandamus,' error in denying the petition appeared on the face of the record and is reviewable without motion for new trial, though oral testimony was introduced, where the judgment recited that defendants made default, the presumption being in that case that the testimony was introduced in support of the allegations of the petition.
    4. Mandamus — parties.—The owner of real property within the street improvement district' is entitled to a writ of mandamus to enforce performance of duty of commissioners under Crawford & Moses’ Dig.-, § 5718, to file annual statements of money received and paid out, but the proceeding must be in the name of the State.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    reversed.
    STATEMENT OE EACTS.
    S. A. Buchanan filed a petition for writ of mandamus in the circuit court against B. E. Halpin, O. J. Horner and C. Welcher, commissioners of Street Improvement District No. 70 of the city of Hot Springs, Arkansas, to compel them to file with the city clerk a statement showing all collections and money received and paid out, with proper vouchers for -all such payments, as required by the provisions of § 5718 of Crawford & Moses’ Digest. 5. A. Buchanan alleges that he owns certain real estate situated within the boundaries of said improvement district, which is specifically described in his petition'. He alleges that said commissioners have failed and refused' to comply with the provisions of said § 5718. He alleges that, as ian owner of property within the district, he had demanded compliance by the commissioners with said section of the statute, and caused written notice to he served upon them that he would make application to the circuit court for a writ of mandamus to compel them to comply with the statute. S. A. Buchanan has duly verified- his petition.

      The judgment of the circuit court recites that S. A-Buchanan appeared in person and by attorney, but that the defendants, who are specifically named, came not, but made default. The judgment further recites that the defendants were adjudged by the court to be in default, and that notice had been served upon them as required by law. The judgment further recites that the case is submitted to the court on the duly verified petition of S. A. Buchanan, upon the written notice showing service thereof, and upon oral testimony. It was considered, ordered and adjudged by the court that the petition of S. A. Buchanan for a writ of mandamus should be denied. From the judgment rendered S'. A. Buchanan has duty prosecuted an appeal to this court.

      Appellant pro se.

      Murphy & Wood, for appellee.
   Hart, C. J.,

(after stating the facts). It is sought to uphold the judgment of the circuit court upon the ground that Buchanan did not file any motion for a new trial, and that there is therefore nothing presented for review here, under our rules of practice. We cannot agree with counsel for the defendants in this contention. This court has held that neither a motion for a new trial nor a bill of exceptions is necessary where the error sought to be reviewed appears from the judgment.record itself. Burns v. Harrington, 162 Ark. 162, 257 S. W. 729. In Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002, it was held that, where there'was no motion for a new trial in an action for mandamus, the consideration on appeal will bo. limited to errors on the face of the record.

In the case at bar the record itself recites that the defendants, although duty served with notice as required by the statute, wholly made default, and the case was submitted on the verified petition of the plaintiff. The plaintiff alleged that the defendants, commissioners of' the street improvement district, had wholly failed to file with the city clerk a statement showing all collections and money received and paid out, with proper vouchers for all such payments, as required under the provisions of § 5718 of Crawford & Moses’ Digest. This court has held that, under this section of the statute, boards of commissioners in municipal improvement districts are required to file annual statements with the city clerk in which city such improvements have been ordered made, showing all collections and money received and paid out, with proper vouchers for all such payments. Boullioun v. Little Rock, ante, p. 489. The complaint of the plaintiff and the judgment itself constitute the judgment roll, and show that the defendants failed to comply with the mandatory duty provided by the statute. Therefore the error appears from the face of the record, and no motion for a new trial was necessary.

In so holding, we are not unmindful that oral testimony was introduced. As we have already seen, it also recites that the defendants made default. Hence the only reasonable presumption is that .the oral testimony was introduced by the plaintiff in support of the allegations of his petition. The petition shows that it was duly Verified by the plaintiff. Hence proof was not necessary to establish its allegations. It would be unreasonable to hold that oral proof introduced by the plaintiff was for any other purpose than to establish the allegations of his complaint, and, no proof being necessary for-that purpose, the oral evidence had no place in the case; and the case stands here-as if there had been judgment upon the complaint after the defendants had made default. In this, state of the record, the error complained of appears upon the face of the record itself, and no motion for a new trial was necessary.

In this connection it may be stated that the plaintiff alleged that he was the owner of real property within the district, and had a right to enforce the performance of the duty required of the defendants under the statute. In Moses v. Kearney, Clerk, 31 Ark. 261, it was held that, where the writ of mandamus is sought for the enforcement of a public right, common to the whole community, it is not necessary that the relator should have a special interest in the matter, or be a public officer; the statute, however, requires that the proceeding shall be in the name of the State.

The result of our views is that the circuit court erred in not granting to the plaintiff the writ of mandamus as prayed for, and the judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.


text:
    Allison v. Cooper.
    Opinion delivered April 2, 1928.
    Bankruptcy — •fraudulent representations. — Under Bankruptcy Act, § 17, subd. 2, liabilities for obtaining property by false pretenses or false representations are not discharged by bankruptcy.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    reversed.
    STATEMENT OP PACTS.
    This was a proceeding *by scire facias by S. G. Allison against J. F. Cooper to revive >a judgment. Cooper defended on the ground that he had been discharged in bankruptcy in the Federal court after the judgment had been obtained. Allison filed a response, alleging that the judgment sought to be revived was excepted from the discharge in bankruptcy under the bankruptcy statute.
    Allison introduced in evidence the judgment sought to be revived, as well as the pleadings in that case. Cooper appealed from the judgment of the circuit court to this court, and the judgment was affirmed. The action was one for damages for fraudulent representations of Cooper in pretending to secure a purchaser of exchange property at a stipulated price as a* consideration for the exchange of lands. The opinion was delivered on May 17, 1920. Cooper v. Allison, 144 Ark. 82, 221 S. W. 477.

      On May 12, 1921, the Federal Court in Bankruptcy rendered a judgment discharging J. F. Cooper from all debts and claims which were provable under the bankruptcy act against his estate existing on the 26th day of August, 1920, excepting such debts as by law were excepted from the operation of a discharge in bankruptcy.
    ■ The circuit court dismissed the petition of Allison to revive the judgment, and the case is here on appeal.

      O. H. Sumpter and Berry E. Randolph, for appellant.
   Hart, C. J.,

(after stating the facts). Under the Federal Bankruptcy Act, certain debts that are provable are nevertheless excepted from the operation of the discharge decree. Remington on Bankruptcy, 3d ed., vol. 7, § 3533. Under § 3537 it is said that liabilities for obtaining property by false pretenses or false representations are excepted from the operation of discharge. The author adds that this exception was added by the amendment of 1903, and took the place of the former provision that read: “Judgments for fraud or for obtaining property by false pretenses or false representations.”

Upon the same subject we quote from Collier on Bankruptcy, 13 ed., vol. 1, page 613, the following:

“Liabilities for fraud, false pretenses and false representation. Before the amendment of 1903, a bankrupt might have been released from a debt contracted in' fraud, unless the fraud had been determined and ia judgment therefor had been rendered. As the law now stands, the frauds which will bar discharge are those connected with the obtaining of property by ‘false pretenses or false representations.’ ‘Property’ as here used has the meaning usually accorded to the word in similar statutes; it means something of substance; it includes money, but does not include services.”

In Forsythe v. Vehmeyer, 177 U. S. 177, 20 S. Ct. 623, 44 L. ed. 723, it was held that a representation as to a fact, made knowingly, falsely and fraudulently, for the purpose of obtaining money from another, and by means of which such money is obtained, creates a debt by means of a fraud involving moral turpitude and intentional wrong, and such debt is not discharged by a discharge in bankruptcy.

In Bullis v. O’Beirne, 195 U. S. 606, 25 S. Ct. 118, 49 L. ed. 340, it was held that on writ of" error to a State court, reviewing its refusal to cancel a judgment after discharge of the debtor in bankruptcy, on the ground that the judgment was in action for fraud, the Federal question is not whether the complaint sufficiently charged fraud to warrant the judgment, but whether the action was for fraud; and if there are facts charged and found to the effect that false and fraudulent representations were made and relied on which, in the State court, were sufficient to warrant relief on the ground of fraud, the judgment comes within the exception of § 17 of the bankrupt act, and will not be canceled, although the suit may originally have been brought in equity for specific performance instead of for money judgment. A statement made fraudulently with knowledge of its falsity must necessarily be intended to deceive.

In the same case it was said that, whether the complaint specifically charged fraud to warrant the judgment given, was not a Federal question. The court further said that the question for it was whether the judgment rendered by the said court was in an action for fraud, and.that, if so, it was excepted from the effect of a discharge in bankruptcy.

The question therefore presented in this case is, was the judgment in favor of Allison in Allison v. Cooper, in the circuit court, as finally decided in this court, one within the meaning of the second exception to the bankruptcy act above referred.to? We think an examination of the record in that case, as well as the interpretation, of the pleadings and judgment by the opinion of this court in the case referred to, in 144 Ark. 82, 221 S. W. 477, shows that the relief was granted on the ground of false representations by Cooper which induced Allison to make the exchange of lands. Under the principles of law above decided, in order to bring the case within the operation of the bankruptcy statute and prevent the discharge of the bankrupt, it should be made to appear that the money or property was obtained by fraudulent representations, and that it was not therefore released by the discharge in bankruptcy.

The object of the statute is to prevent the bankrupt from retaining the benefits of property acquired or money secured by fraudulent representations. In Cooper v. Allison, 144 Ark. 82, 221 S. W. 477, the court said:

“There is enough evidence, we think, to warrant the conclusion that the purchase by Parnell, and appellant’s (appellee here) representations as to the opportunity to resell the property to Parnell, were not made in good faith, but were collusive between appellant and Parnell, and that those facts constituted ¡actionable deceit practiced by appellant upon appellee, which induced the latter to enter into a contract for exchange of properties.”

As thus interpreted, we are of the opinion that the judgment in question was'based upon the fraudulent representations of Cooper, and the judgment sought to be revived in this case is, in our opinion, in ¡an action for fraud within the meaning of subdivision 2 of provable claims excepted from a discharge in bankruptcy in the Federal court.

It follows that the judgment will be reversed, and the cause will be remanded with directions to the circuit court.to issue the writ of scire facias and revive the judgment in accordance with the petition of S. Gr. Allison, and for further proceedings according to law and not inconsistent with this opinion.


text:
    Cochran v. People's Exchange Bank.
    Opinion delivered April 2, 1928.
    1. Sales — fraudulent representations. — In order to vitiate a contract of sale on the ground of fraudulent representations, they must relate to an existing fact material to the contract upon which the other party has a right to rely and did rely to his injury.
    2. Sales — fraudulent representations — means of information. If the means of information as to the matters alleged to be misrepresented in a sale are equally accessible to both parties, they will be presumed to have informed themselves, and, if they have not done so, they must abide by consequences of their own carelessness.
    3. Appeal and error — conclusiveness of chancellor's findings.— Where the evidence is evenly poised, or so nearly- so that the Supreme Court is -unable to determine in whose favor the preponderance lies, the chancellor’s findings of fact are conclusive on appeal.
    4. Sales — fraudulent representations. — In a suit to recover the price of mill machinery and to foreclose a mortgage thereon, evidence that defendants agreed to furnish the machinery as viewed by them at the place to which it had been hauled from the country, held to justify the chancellor’s finding that they were not induced to purchase by representations as to the value and character of the parts, which they knew were missing when they purchased.
    Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    Appellee brought this suit in equity against appellants to recover judgment for an amount alleged *to be due them and to foreclose a mortgage on lands and machinery given to secure said indebtedness. - Appellants defended the suit on the ground that the mortgage was given to secure the purchase price of certain mill machinery purchased by them from appellee, and that the sale 'had been induced by fraudulent representations.
    L. B. McClure, vice president and manager of appellee hank, was a witness for it. According to his testimony, in May, 1923, It. H. and J. P. Cochran procured a loan from his bank in the sum of $800, and gave a mortgage on certain mill machinery and real estate situated.in Pope County, Arkansas, to secure it. Six hundred dollars of the amount borrowed was to be applied in payment of a sawmill upon which appellee had a second mortgage, and the remaining $200 was to be used in operating expenses of the sawmill. B. F. Harris had a first mortgage on the sawmill outfit, which belonged to B. F. Roof. The Cochrans came to the witness, land told him they were interested in the purchase of the sawmill. McClure sent him to Harris, who had charge of the Roof mill at that time. Roof had turned the mill over to Harris to sell for him. Harris had hauled the mill from its location near G-um Log, in Pope County, to his place on the north side of Russellville. McClure told Cochran to go land look at the mill before he purchased it. Cochran did so, and agreed to pay $600 for the mill if appellee would let him have $200 additional for operating expenses. Appellants gave appellee a mortgage on the sawmill they were purchasing and on one in operation, and also on a tract of land which they had purchased from.W. P. Ferguson, on which they owed $477.50. Appellee subsequently paid off the amount due Ferguson on the mortgaged land.
    B. F. Harris was also a witness for appellee. According to his testimony, he had a first mortgage on the mill machinery owned by Roof, and appellee had a second mortgagé. Roof asked Harris to sell the machinery for the purpose of paying off the mortgage to the bank. The machinery was at Moreland, in Pope County, Arkansas, and was so located that Harris was unable to sell it. After talking with L. B. McClure, Harris had the machinery hauled to his place near Russellville for $20. The Cochrans came out there to look iat the machinery, and asked Harris what it was worth. Harris told them it was worth $600, but that whatever they could do with McClure was all right with him. Harris told the Cochrans that he was selling the machinery to them just as they saw it. He told them that if there were any additional parts of the machinery at Moreland, he would get them for them, but that he was only selling them what they saw. He turned over to them all the saws, belts and pulleys which he showed them. They did not haul the machinery away for two or three months after they bought it.
    According to the testimony of B. F. Roof, he authorized B. F. Harris, who held the first mortgage on the machinery, to sell it for him. Harris made the sale of the machinery, and was paid a commission for selling it.
    According to the testimony of R. H. Cochran, he purchased the machinery from L. B. McClure, and McClure represented to him that he had a complete sawmill outfit, but that Harris only showed him the engine and part of a saw rig and a boiler. The governor, steam gauge, lubricator, lead pipes, lead-pipe fittings and flanges were not there. These parts were a material inducement for making the purchase, and they were never turned over to the witness. Two members of the Cochran family testified to substantially the same state of facts. Two other members of the same family testified that they were employed by appellants to haul the machinery for them, and that the governor, steam gauge, certain belts and lead pipes could not be found, and were not hauled and delivered by them to appellants.
    The chancellor found the issues in favor of appellee, who was plaintiff in the court below; and from a decree in appellee’s favor the appellants, defendants and cross-complainants in the court below, have duly prosecuted this appeal.

      Strait & Strait, for appellant.

      Ward & Caudle, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellants seek to reverse the decree upon the ground that the sale of the machinery to appellants was procured by the false representations of L. B. McClure, vice president and manager of appellee bank. In order to vitiate a contract of sale on the ground of fraudulent representations, such representations must relate-to an existing fact material to the contract, .and upon which the other party had a right to rely, and did rely to his injury. If the means .of information as to the matters alleged to be misrepresented are equally accessible to both parties, they will be presumed to have informed themselves; and if they have not done so, they must abide by the consequences of their own carelessness. Bankers’ Utilities Co., Inc., v. Cotton Belt Savings & Trust Co., 152 Ark. 135, 237 S. W. 707; and Manzil v. White, 161 Ark. 1, 255 S. W. 567.

Thus it will be seen that the issue raised by the appeal is entirely one of fact; and, in determining issues of fact in chancery cases, where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, the findings of fact by the chancellor are persuasive. In short, the findings of fact by the chancery court stand upon appeal, unless they are clearly against the preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.

In the application of this rule to the facts in the record, viewed in the light of the attendant circumstances, it cannot be said that the findings of fact made by the chancellor are clearly against the weight of the evidence. Appellants were experienced sawmill men, and were shown the sawmill outfit before they purchased it. Harris and McClure both testified that they agreed to purchase the sawmill outfit as viewed by them. The machinery composing the sawmill outfit had been hauled from its location in the country and stored at the residence of the witness Harris, who held a first mortgage on it. Appellants saw the outfit before they purchased it. They now claim that certain pakts were missing when they hauled it away. They claim that they asked about the missing parts, and that Harris promised, to get them up. Appellants knew the missing parts were not with the other parts and that the parts examined by them had been hauled into town from their location somewhere in the country. It is not reasonable to think that they were induced to make the purchase by the representations of Harris and McClure as to the value and character of the parts which they now claim are missing. They saw the most valuable parts of the sawmill outfit, and it is more in accordance with reason and human experience that they purchased the machinery relying upon the value of the parts which were shown to them and which they examined before making the purchase. In addition they secured the sum of $'200, which they claim they were to use in operating expenses. •

We think the chancellor was justified in finding that the facts of the case bring it within the principles of law above announced, and it follows that the decree should be affirmed. It is so ordered.


author: Wood, J.

text:
    Smith v. Garretson.
    Opinion delivered April 2, 1928.
    1. Equity — exhibits to complaint. — In suits in equity exhibits to the complaint ■will be looked to on demurrer for the purpose of testing the sufficiency of allegations of the complaint.
    2. Constitutional law — right to question validity of statute.— In a suit to restrain levying of an assessment of benefits within a levee district against plaintiff’s lands, which were brought into the district under a county court’s order under the same notice and procedure prescribed for creating a new levee district, plaintiff was not entitled to contend that the lands were embraced within the district without notice, and that Crawford & Moses’ Dig., § 6813, was unconstitutional in providing that a change of boundary of the district should be made without notice.
    3. Constitutional law — necessity of decision on constitutionality. — As a general rule, the court will not pass on a constitutional question unless a decision on that very point is necessary to determination of the case.
    4. Levees — assessment of land added to district. — Crawford & Moses’ Dig., § 6813, held to authorize assessment of levee district benefits against land added to an existing district by changing its boundary.

      5. Levees — authority to assess benefits to lands added to district. — The board of assessors of a levee district, if not expressly-authorized to assess the benefits to additional lands brought into an existing district by change of boundaries, has such authority by necessary implication under Crawford & Moses’ Dig., § 6823.
    6. Levees — incidental -powers of district. — In the construction of statutes governing levee improvement districts, the grant of powers by the statute includes the incidental powers reasonably proper and necessary for carrying into execution the powers specifically granted.
    Appeal from White Chancery Court; Frank H. Dodge, Chancellor;
    affirmed.

      C. E. Tingling, for appellant.

      Brundidge & Neelly, for appellee.
   Wood, J.

On January 2, 1928, a petition was presented to the White County Court asking that the boundary lines of Levee District No. 1 he changed and that certain territory described in the petition he added to the district “for the purpose of constructing- and maintaining a levee for the protection” of the lands described in the petition and all the lands which had already been included in Little Red River District No. 1. At the regular January term, of the White County Court the court found that notice was given to the resident landowners in the territory described in the petition more than ten days before the application for the change in the boundary lines by posting written notices in three public places in the limits of the district and the proposed addition thereto. The court further found that ¡an election had been duly and regularly held for the purpose of electing one director and assessor for the Little Red River District No. 1, and that one George Akers was elected director and Walter Heathcock was elected assessor.

This action was instituted in the White Chancery Court by L. A. Smith against T. H. Garretson, Swan Garretson and George Akers, as directors, and Walter Heathcock, L. A. Pryor and J. M. Garretson as assessors, of Little Red River District No. 1. The plaintiff alleged that he was a landowner and taxpayer of the district, and that an order was made annexing certain territory to the district, which order is set ont and made an exhibit to his complaint, and the ¡alleged annexed territory is described in the exhibit. He further alleged that the court ordered an election, after due notice, for the purpose of electing a director and also an assessor to fill vacancies in those respective offices, and that ¡at the election so held one George Akers was elected director and Walter Heathcock was elected assessor. He alleged that the directors and assessors were threatening to assess his lands and other lands in the district and to issue additional bonds to repair the levee, which was damaged by overflows, and that there was no provision under the law whereby the lands can he assessed and no right or authority in the assessors to assess the lands which had been annexed to Little Red River District No. 1. The plaintiff prayed that the defendants be enjoined from levying an assessment of benefits on his land.

The defendants filed a general demurrer to the complaint. The cause was submitted upon the complaint with its exhibits and the demurrer of the defendants. The court sustained the demurrer, and the plaintiff stood on his complaint and exhibits. The court entered a decree dismissing the complaint for want of equity, from which is this appeal.

1. It will he observed that the cause was heard on the demurrer to the complaint. In ¡actions in equity exhibits to the complaint will be looked, to, on demurrer, for the purpose of testing the sufficiency of the allegations of the complaint. See Evans v. Pettus, 112 Ark. 572, 166 S. W. 955; Moore v. Exelby, 170 Ark. 908, 181 S. W. 671. The complaint alleges that the county court of White County made an order annexing certain territory in which the plaintiff owned lands, and that the county court made ¡an order directing that an election he held for the purpose of electing a director of Levee District 'No. 1 and also to elect an assessor, and that the election was duly held, all of which was shown by an order of the county court, which was attached and made an exhibit to the complaint. When the recitals of the order of the county court are examined, it will be observed that the court, in making the alleged order of annexation and for the election of a director and an assessor, followed the procedure prescribed by the statute with reference to the formation of new or original districts as regards notice and election of directors and assessors. See §§ 6814-6819 of Crawford & Moses’ Digest. While the recitals of the order designate it as a petition for the annexation of territory and a change in boundary lines, these recitals further declare that the petition was presented asking that the boundary be changed and the territory described therein added “for the purpose of constructing and maintaining a levee for the protection of the above described lands, as well as all the lands included in said Little Red River District No. 1, to the end that all said lands shall be protected from overflow.”

The recitals of the order of the county court upon which the appellant predicates his alleged right to enjoin the appellees from levying- an assessment of benefits on his land, and which recitals must explain and control any allegations of the complaint, really make it uncertain whether the purpose of the county court of White County was simply to lay off and form a new levee district with the same name and including the same territory as that embraced in Little Red River District No. 1 and also the additional territory as that described in the order of the county court, or whether the purpose of the court was to change the boundary lines of the district already existing so as to include therein new territory. However this may be, it is certain that the appellant’s lands have been brought into the district under an order of the county court under the same notice and procedure which would have been followed if the county court had been really creating a new levee district instead of merely changing the boundaries of one already existing. 'Such being the state of the record, the trial court was not called upon to pass upon the constitutionality of the act of March 20, 1879, as amended by the act of March 1, 1889, as set forth in § 6813 of Crawford & Moses’ Digest. Certainly the appellant is not in an attitude to contend that his lands were embraced in the district without notice to him, and that the act of March 1, 1889, is for that reason unconstitutional and void.

In Ry. Co. v. Smith, 60 Ark. 221-240, 29 S. W. 752-754, Judge Battle, speaking for the court, quoted from Judge Cooley on Constitutional Limitations, p. 231, paragraph 2, as follows: “Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will, not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extrajudicial disquisition is entitled. In any case therefore where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case ¡arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.” Such has been the unvarying practice of this court. See also Martin v. State, 79 Ark. 236, 96 S. W. 372; Sturdivant v. Tollett, 84 Ark. 412, 105 S. W. 1073; Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, 110 S. W. 1031.

2. But learned counsel for the appellant contends that no express ¡authority is contained in the statute, § 6813, for the ássessing of benefits against any land that may be added to an existing levee district by a change in the boundary of such district. We cannot concur in this view. The act of March '20, 1879, authorizing the creation of levee districts, provides for ¡a board of three assessors for such districts, whose duty it is, under the statute, to assess the benefits to accrue to the lands in such districts by reason of the levees to be constructed and maintained. This language, “shall assess the value of lands in said district * * * and shall assess the value thereof,” i. e., the benefit of the work or improvement made, is sufficiently comprehensive to include all the lands that may be embraced in any levee district that may exist as originally formed, and also any lands that may be subsequently added by a change in the boundaries of such district. The Legislature of 1889, in § 1 of the act approved March 1, 1889, after amending the act of 1879 so as to authorize the county court to lay off levee districts or change or order the boundaries of existing levee districts, further provided, in § 2 of the act, “that the said board of assessors shall make an assessment of the cost of said work upon the land situated in said district benefited by said work,” etc. The Legislature of 1897 amended § 2 of the act of March 1,1889, so as to read as follows: “Said board of assessors • shall make an assessment upon the cost of said work upon the lands situated in said district benefited by said work and reported at s:aid meeting of landowners,” etc. Then follow certain changes in the section not necessary to set out. See §§ 4365, 4367, 4375 of Mansfield’s Digest, and 4709 of S. & H. Digest, all brought forward and digested in §§ 6813> 6815, 6823 and 6830 of Crawford & Moses’ Digest. When these provisions of our statutes pertaining to levees are considered, it is clear that the assessors of all levee districts ¡are expressly authorized to assess the benefits to accrue to all the lands included in the district by the building and maintaining of the levee. A review of the statutes set forth above convinces us that the Legislature used the words “levee district” intending that they should, be applied to all the lands embraced in such districts, whether ¡as at first formed or created, or as such districts might exist should their boundaries be afterwards changed.

Furthermore, even if the board of assessors were not expressly authorized to assess the benefits to the additional lands brought into the existing levee districts by change of boundaries, they would have such authority by necessary implication, because it is their duty, under § 6823 of C. & M. Digest, supra, to assess the value of the benefits to accrue to the lands by reason of the levee. This necessarily includes all the lands that may be embraced in any existing’ levee district. Any other construction would cast an unjust ¡and discriminatory burden upon some of the lands in the district and defeat the purpose of the law in the creation of such improvements.

In West v. Cotton Belt District No. 1, 116 Ark. 538, 173 S. W. 403 (a levee district case) we held: “In the construction of statutes governing improvement districts, the grant of powers by the statute includes the incidental powers reasonably proper and necessary for carrying into execution the powers specifically granted.” That doctrine applies here.

The decree is correct. Let it be affirmed.


author: Smith, J.

text:
    Blake v. Thompson.
    Opinion delivered April 2, 1928.
    Abatement and revival — when revival barred. — Where a suit to cancel a. trustee’s deed and for an accounting of rents and benefits was .improperly revived against the executor of the grantee on the latter’s death in 1922, and the heirs were not made parties until 1927, held under Crawford & Moses’ Dig., §§ 1063, 1065, the cause of action was barred.,
    Appeal from Woodruff Chancery Court, Central District; A. L. Hutchins, Chancellor:
    affirmed.

      Jonas F. Dyson, for appellant.

      W. J. Dungan, for appellee.
   Smith, J.

The heirs of George Washington, Jr., brought suit to cancel a trustee’s deed which had been executed under a power of sale contained in a deed of trust executed by their ancestor to W. H. Gray, as trustee for Thompson & Gregory, and for an accounting of the rents ¡and profits of the lands, and for the value of certain timber cut by Thompson from the lands. The deed of the trustee was to Thompson. Before the final submission of the cause Thompson, the grantee in- the trustee’s deed, died, and the cause was revived in the name of his executor. Upon the final submission of the cause the relief prayed was granted, the trustee’s deed was canceled, and la judgment was rendered against Thompson’s estate for the amount of the rents in excess of the debt secured by the deed of trust and for the value of the timber cut by Thompson.

An appeal was duly prosecuted from this decree, and it was held by this court, on the submission of that appeal, that, as the action was one to recover lands, the cause should have been revived in the name of Thompson’s heirs, and not against his executor, and-the decree of the court below was reversed and the cause dismissed. Thompson v. Lee, 174 Ark. 868, 296 S. W. 706. Thereafter, on August 2, 1927, the heirs of Washington brought a new suit, in which the heirs of Thompson were made parties, and the complaint recited the facts above stated, and which are -set out in detail in the former opinion.

A demurrer to this complaint was sustained, upon the ground that the original cause of action had not been brought within the time allowed by law after the death of Thompson, which, as the former opinion recited, occurred on May 12, 1924. The complaint in the present case alleges that Thompson died March 28, 19'22.

The opinion on the former appeal is decisive of the present case. It was there said: “The heirs were necessary parties to the suit, after his death, it being ¡an action affecting the title to and for the recovery of real property, and the revivor should have been miade against and in the name of his heirs. Section 1063, C. & M. Digest; Ex parte Gilbert, 93 Ark. 307, 124 S. W. 762; and Dupree v. Smith, 150 Ark. 80, 233 S. W. 812. The court proceeded to a hearing of the cause without revivor against the heirs or devisees of M. D. Thompson or treating them as proper or necessary parties, and the cause could not have been revived against them without their consent, after the expiration of one year from the time the order of revival might have first been made. Section 1065, C. & M. Digest.

The sections of the statute there referred to read as follows:

° “Section 1063. Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an order therefor may. be forthwith made in the manner directed in the preceding sections.”
‘ ‘ Section 1065. An order to revive an action against the representatives or successors of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.”

In addition to the cases cited in the former opinion, see also Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833.

As it appears from the face of the complaint, to which a demurrer was sustained, that Thompson died in 1922, and that this suit was improperly revived against his executor, and not against his heirs, and that the heirs were not made parties until 1927, the cause of action was barred by the statutes quoted, and the demurrer was therefore properly sustained.

The decree of the court below will therefore be affirmed.