author: Hart, J.,

text:
    Butts v. State.
    Opinion delivered June 28, 1926.
    1. Continuance — absence of witnesses. — It was not error to deny a continuance for the absence of witnesses where the affidavit stated merely that their attendance could be procured at the next term of the court, and did not state where the witnesses were nor why their attendance could not be had, nor why théy were absent.
    2. Continuance — discretion of court. — Much discretion must be left to the trial court in granting or refusing continuances.
    3. Robbery — indictment of accessory. — An indictment for the crime of being "accessory before the fact to a robbery which charges the principal offenders with robbery and defendant with aiding, abetting and encouraging the robbery, is not insufficient for omitting the words, “in manner and form aforesaid.”
    4. Criminal law — confession of principal offender. — It was not error to permit an officer to testify, in a prosecution of an accessory, that one of the principals confessed his own guilt, without implicating, the accessory.
    5. Criminal law — corroboration of accomplice. — Evidence held ' to corroborate an accomplice in a trial for robbery.
    .Appeal from Madison Circuit Court; W. A. Dickson, Judge;
    affirmed.
    STATEMENT OF FACTS.
    The body of the indictment agáinst the defendant reads as follows:
    “The grand jury of Madison County, in the name and by the authority of the State of Arkansas, accuse J, S. Campbell and Jess Butts of the crime of accessories before the fact of robbery committed as follows, to-wit:
    “The said J. S. Campbell and Jess Butts, in the county of Madison, in the State of Arkansas, on the 9th day of February, 1926, Charley Williams and Fred Conway feloniously and violently from the Citizens’ Bank of Pettigrew, Arkansas, a corporation, by putting in fear Chas. E. Crawford, the president of said Citizens ’ Bank, having the legal charge and custody of the funds of said bank, did feloniously and violently take the sum of $1,355.55 gold,, silver and paper money, current and lawful money of the United States and the State of Arkansas, and circulating as such, and of the value of $1,355.55, from said Chas. E1. Crawford, and against his will, the same being the property of the Citizens’ Bank of Pettigrew, Arkansas, and the said J. S. Campbell and Jess Butts, not being present, aided, abetted, advised and encouraged the perpetration of the robbery of said bank aforesaid, against the peace and dignity of the State of Arkansas.”
    The defendant filed a motion for a continuance and then a supplemental motion on account of the absence of Floyd Dickson and Ed Donahue, for whom subpoenas had been issued in his behalf. In his motion he alleges that Dickson lived in Newton County, Arkansas, and that a subpoena for him was directed to that county; that Dickson’s postoffice address is Backer, Newton County, Arkansas, and that Donahue’s postoffice address is Pettigrew, Madison County, Arkansas; that each of said witnesses are residents and citizens of the State of Arkansas, and are temporarily absent without the consent, procurement or connivance of the defendant. The testimony which the witnesses would give is then set out in the motion.
    The witnesses for the State testified that, on the first day of February, 1926, about three o’clock in the afternoon, Chas. Williams and Fred Conway entered the Bank of Pettigrew, in Madison County, Arkansas, armed, and forcibly took from the bank $1,355.55.

      Fred Conway was a witness for the State, and admitted that he was one of the parties who robbed the bank. He testified in detail about the planning of the robbery and how it was committed. According to his testimony, the defendant directed him how to reach the home of his father, where they took dinner on the day following the robbery. The defendant had been given his share of the money secured, in accordance with a previous agreement had with him. According to his testimony, the defendant helped them plan the robbery and furnished them with sacks with which to carry away the money. On the day of the robbery the defendant wént to town to see if there were any officers there, and came back towards where the others were hidden and gave them a signal to go ahead and rob the bank.
    Other evidence tending to corroborate the testimony of Conway, will be- stated under an appropriate heading Ttn the opinion.
    The defendant was a witness for himself, and denied that he took any part whatever in the robbery, and introduced witnesses tending to show that he was at another place on the day the robbery was committed.
    The jury returned a verdict of guilty, and fixed the punishment, of the defendant at three years in the penitentiary.
    From the judgment of conviction the defendant has •duly prosecuted an appeal to this court.

      J. Wythe Walker, for appellant.

      H. W. Applegate, Attorney G-eneral, and John L. Carter, Assistant, for appellee.
   Hart, J.,

(after stating the facts). It is first insisted that the court erred in refusing to grant the defendant’s motion for a continuance.

The record shows that the defendant was arrested on February 20, 1926, charged with accessory before the fact of robbing the Bank of Pettigrew, and was placed in jail and kept there until an indictment was returned against him on the 2d day of March, 1926, and his trial was set for March 8, 1926. He expected to introduce Floyd Dickson and Ed Donahue as witnesses in his behalf to establish an alibi.

It is true that he states in his motion that Dickson lived in Newton 'County and Donahue lived in Madison County, and that he could procure their personal attend7 anee at the next term of .the court. He-does not state, however, where the witnesses were; but only makes a general statement that they were temporarily absent, from the court without his consent or procurement. He 'did not ask for a postponement of the trial, and did not state where the witnesses were, or what business carried them away from home. He does not state when they will return, but only makes a general statement that he could procure their personal attendance at,the next term of the court. Much discretion must be left to the trial court in granting or refusing a motion for a continuance. He is on the ground, and knows the local conditions and the situation of the absent witnesses. A general statement that they would be back' by the next term of the. court, which would be six months away, is too indefinite. Then, too, a statement should have been made of ^here the absent witnesses were, and whether they were gone on business or pleasure, so that the court would be fully advised of the likelihood of obtaining their presence at

court within a reasonable time. If so, the court might have postponed the trial of the case for a short time until they could return. Lewis v. State, 169 Ark. 340, 275 S. W. 663; Scott v. State, 169 Ark. 326, 275 S. W. 667; and Harris v. State, 169 Ark. 627, 276 S. W. 361.

It is next insisted that the court erred in not sustaining a demurrer to the indictment. The indictment in this case substantially conforms to the rule of law laid down in Jones v. State, 58 Ark. 390, 24 S. W. 1073, as to the essential elements of an indictment of an accessory.

It is true that the indictment in that case charges that the defendant had advised and encouraged the principals in the crime, whose names are set out, had committed the murder “in the manner and form aforesaid,” against the peace and dignity of the State of Arkansas, while the indictment in this case leaves out the words, “in the manner and form aforesaid.” We do not think, however, that the omission of these words changes the rule of law. The use of the words, “in manner and form aforesaid,” are simply formal and add nothing to the substantial elements of the crime.

In the case at bar, the indictment, after charging the principal offenders with robbery of the bank, concludes by charging that J. S. Campbell and Jess Butt, the defendants, although not being present, aided, abetted, advised and encouraged the perpetration of the' robbery of the said bank. As said in the Jones case, this averment relates back to and adopts the words used in the principal charge. Therefore we hold that it is a good indictment for accessory before the fact of robbery.

It is next contended that the circuit court erred in permitting, the sheriff of Madison County to testify that he arrested Fred Conway in the State of Missouri for the robbery, and that Conway confessed that he was guilty. We cannot see how this testimony can in any way prejudice the rights of the defendant. Conway was a witness for the State, and testified before the jury about robbing .the bank. In his confession to the sheriff he only implicated himself, and did not attempt to tell him, or at least the sheriff did not testify, anything whatever implicating the defendant in the crime. He only made a statement to the .jury that Conway had confessed his guilt to him when he arrested him. Hence we hold this assignment of error is not well taken. Monk v. State, 130 Ark. 358, 197 S. W. 580, and Middleton v. State, 162 Ark. 530, 258 S. W. 995.

It is next insisted that the testimony of Fred Conway was not sufficiently corroborated to warrant the jury in convicting the defendant.

We cannot agree with this contention. The president of the bank was a witness for the State, and identified Fred Conway as one of the men who robbed the bank. He told in detail about the commission of the robbery. According to his evidence, he lived, near a hotel which was run by the defendant. After J. S. Campbell had been arrested as being implicated in the robbery and placed in jail at Fayetteville, Washington County, the president of the bank went to Fayetteville. Upon his return, the defendant asked him if Campbell was trying to implicate him in the robbery. This was before the defendant was arrested. The defendant also paid off a note which he owed the bank, and made the payment mostly in one-dollar bills. The proof for the State shows that a good many one-dollar bills were taken from the bank when it was robbed.

Conway testified that four persons who planned to rob the bank, including himself and the defendant, met in a hollow near the town on the morning of the robbery.

Another witness for the State testified that he saw the defendant and three other parties in the hollow that same morning.

The father of the defendant was a witness for the State, and admitted that Fred Conway and Charley Williams came to his house the next day after the robbery, just as testified to by Conway. They ate dinner with him, and then left.

Other witnesses for the State testified that the defendant was seen near the bank a short time before the robbery occurred. These facts and circumstances were sufficient to corroborate the testimony of Fred Conway and to warrant the jury in returning a verdict of guilty against the defendant. Middleton v. State, 162 Ark. 530, 258 S. W. 995, and cases cited.

Objections were made to certain instructions given and refused by the court, which are now pressed upon us as grounds for reversal. We do not deem-it necessary to set out these instructions. The instructions given by the court fully and fairly covered the respective theories of the State and of the defendant. The jury was fully instructed on the question of corroboration, in accordance with the rule laid down in the Middleton case above cited, and many other cases which might be cited.

We have carefully examined the record and find no reversible error in it, and the judgment will therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Farmers' Home Mutual Fire Association v. McAlister.
    Opinion delivered June 28, 1926.
    1. Insurance — fire policy — loss recoverable. — Under Crawford & Moses’ Dig., § 6147, making the full amount of the insurance named in a fire insurance policy payable in the event of a total loss, an instruction, in an action on a fire policy for the total loss -of a ibarn, to return a verdict. for insured for the value of the barn, as fixed in the policy, held proper.
    2. Insurance — valued . fire policy — stipulation as to amount payable. — A stipulation in a valued fire policy, limiting the insurance to two-thirds of the actual value of the property, held void as conflicting with Crawford & Moses’ Dig., § 6147, making the full amount of the policy payable in the event of total loss.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    affirmed.
    statement by the court.
    Leo McAlister sued the Farmers’ Home Mutual Fire Association to recover the sum of $600 alleged to be due on a fire insurance policy on his barn and its contents. In the policy the barn was valued at -$500, and the grain, corn and other feed in the barn were; valued at $100. The policy contains a clause that no property, real or personal, shall be insured by the company for more than two-thirds of its actual value. The barn and its contents were totally destroyed by fire without any fault on the part of the insured.
    The jury returned á verdict in favor of the plaintiff for the sum of $500 as the'value of the barn.
    The case is here on appeal.
    Joe D. NXepXerX, for appéllant.
   Hart, J.,

(after stating the facts). The principal-ground relied upon for a reversal of the judgment is that, the court instructed the jury that its verdict should be for the plaintiff for the value of the barn as fixed in the policy. This instruction is in accordance with § 6147 of Crawford & Moses ’ Digest, which makes the full amount of the insurance named in the policy payable in the event of a total loss, and limiting the recovery to that amount. Statutes of this sort are commonly called valued policy laws, and have been sustained .by. this court and by .the Supreme Court of the United States. Minneapolis Fire & Marine Mutual Ins. Co. v. Fultz, 72 Ark. 365, 80 S. W. 576; American Central Ins. Co. v. Noe, 75 Ark. 406, 88 S. W. 572; National Union Fire Ins. Co. v. Kent, 163 Ark. 7, 259 S. W. 570; Liverpool & London & Globe Ins. Co., Ltd. v. Payton, 128 Ark. 528, 194 S. W. 503; and Orient Insurance Co. v. Daggs, 172 U. S. 557, 19 S. Ct. 281.

The contention of the insurance company in this case is that this statute does not apply, because the policy contains a provisión that no property, either real or personal, shall be insured by the association for more than-two-thirds of its actual valúe, and that the proof shows that this was done in the present case.

Counsel for the insurance company, in making this contention, have not taken into consideration the Payton case cited above, in which' it was expressly held that a stipulation of the policy in conflict with the terms of the statute is void. Statutes of this sort are passed for the purpose of avoiding the uncertainty of determining the value after the fire. The. manifest policy of the statute is to 'guard against over-insurance of the property. The agents "of the company have the opportunity to inspect the property fully before taking the insurance and fixing the amount of the premiums. It is the valuation fixed in advance by the parties by way of liquidated damages in case of a total loss by fire of the property insured without the fault of the insurer.

No errors of law appear in the record, and the judgment of the circuit'court will therefore be affirmed.


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

text:
    Martin v. State ex rel. Saline County.
    Opinion delivered June 28, 1926.
    1. Appeal and error — conclusiveness of .chancellor’s finding.— A finding of fact by the chancellor -will be sustained on appe.al when not against the preponderance of the testimony.
    2. Counties — authority of county court. — Under the Constitution, the county court is the general fiscal agent of the county, and has power to do all things necessary to the preservation of its funds.
    3. Counties — power to issue bonds. — Constitutional Amendment No. 11, authorizing county courts to issue bonds to secure the indebtedness outstanding at the time of its adoption, is self-executing, and the county court need not await the passage of an enabling act to order a sale of bonds.
    4. Counties — agreement of judge to'issue bonds. — Where county warrants were worth not exceeding 60 cents on the dollar, an agreement of the county judge with one owning a considerable amount of such warrants to issue bonds and redeem the warrants held and to be acquired by the other, held supported by a sufficient consideration.
    5. Frauds, statute of — oral agreement — part performance,— Purchase by a dealer of county warrants and issuance of bonds to pay same, in accordance with an oral agreement for redemp'tion of such warrants, held a sufficient part performance to take the agreement out of the statute.
    6. Equity — jurisdiction—multiplicity of suits. — Equity held to have jurisdiction to determine rights of a dealer in county warrants relating to numerous warrants, which might involve a multiplicity of suits, if resort were had to law.
    7. Injunction — payment of public money. — Injunction at the instance of a citizen to prevent payment of more for county warrants than a dealer in such warrants was entitled to under an agreement with the county judge, held to present a proper case for equitable jurisdiction.
    Appeal from Saline Chancery Court; W. R. Ruffle, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    The State of Arkansas, on the relation of Saline County, brought this suit in equity against A. V. Martin and George H. Ramsey as treasurer of Saline County, to enjoin the county treasurer from returning to Martin certain county warrants, and praying that Martin he required to accept the price for said warrants which had been agreed upon between him and the county judge of Saline County in order to induce the county judge- to issue-bonds in payment of said warrants.
    Martin defended the suit on the ground that he did not make suehari agreement, and upon the further.'ground that-any. such agreement would'be void because there was no-consideration for it.
    The chancellor made a special'findings''of"facts, which is' embodied in his decree'; and which redds as follows:
    “That John P.- Kirkpatrick was elected county judge of Saline County-in the year 1924, arid assumed*the duties of office as such on or about January 1,1925, and thereafter decided if was advisable to'place' said county'upon a cash basis, issuing bonds under Amendment 'Number Eleven (11)- to the Constitution of the'State of Arkansas, in case same should be declared adopted/or -by some other ineáns in case decision' bri said árriendhient Should be that it'was not adopted, and, in deciding "tipori this, talked- with defendant, A. V. Martin,'who; at'-that time; stated he had approximately $16,000 of the' scrip or warrants'of said county, and agreed with the said, county judge' to purchase other outstanding ' warrant's, which, with' the warrants held by him, would make approximately $30,000/and that he, said" A. Y. Martin, would'sell-all the county warrants held arid which'should be acquired by him issued prior to October 7,1924, at the price of 75-cénts' on the dollar,-or turn same'over to such-person as’the cbunty judge might select at said price; and; after said amendment had been'declared adopted by the Supr'errie Court of the State of Arkansas, bonds were issued by said county and the' amount for same received by .said courity immediately preceding the"filing Of this" shit; and; after said decision of the Supreme Court, said Martin agreed to turn over to said county and accept said price for all of said warrants held by him which were issued prior to said October 7,1924, and which were held by- said defendant Martin immediately prior to- the' iristitiition of this suit, and turned over by him to the said treasurer of. said county for payment, amounting to $18,612.03, and for which the county treasurer erroneously..issued his check in the sum óf TOO cents on the dollar instead of 75 cents on the dollar, but which check had not been paid at the' time, of the institution of this suit; and that said county judge, acting on behalf of said county, would not have caused bonds to have been issued under said amendment except for the agreement with said defendant. Martin.' That, at'the time the negotiation between said county judge, acting on.behalf .of 'said. county, and said defendant Martin, began, the general market price of the scrip of said county' was around 60 cents on the dollar, and, in pursuance, and fulfillment of the contract between said county judge, acting'.on. behalf of said county,'and defendant’Martin, and said county judge, acting for said Martin, purchased several thousand dollars’ worth of scrip, and was'instrumental in assisting said defendant Martin to purchase a material amount of. other scrip, and that the scrip held by said Martin and purchased by and for him up to the time When bonds were issued by said county under the provisions óf said amendineht, amounted to $30,158.55, and that bonds wéfe issued by said county in the amount of the'indebtedness of said county. ‘ That said .coiitract was made'between said county through its county judge and officers, and, had it not been for the said defendant Martin, the county jvould. not have acted to its detriment in issuing.bonds.”
    A decree was entered in accordance with the findings' of the chancellor, and the county treasurer was enjoined from paying to A. V. Martin'more than 75 cents on the dollar for the county warrants which had been deposited with him, in accordance with the contract between Martin arid the county judge. The cáse is here on appeal.

      B. M. Cloud and W. B. Bonham, for appellant.

      W. A. ‘Utley and Brouse S 'McDaniel, for appellee.
   Hart, J.,

(after stating the facts). We deem it unnecessary to make an abstract of the evidence. While the testimony of A. Y. Martin flatly contradicts that of John F. Kirkpatrick, county judge of Saline County, to the effect that the agreement found by the chancellor, was made, still the testimony of Kirkpatrick was corroborated by that of other witnesses, and we think that it cannot be said that the finding of the chancellor was against. the preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.

It may be then taken as settled, in so far as this opinion is concerned, that the chancellor was warranted in finding that Martín and the county judge of Saline County made á contract whereby the former was to receive 75 cents on the dollar for the county wárrants Which he owned at'the time the agreement was made and those purchased pursuant to the agreement, and’ that; these Warrants had been deposited with the county treasurer for payment in accordance with the agreement.

The main reliance of Martin 'for a reversal of the decree is that the agreement in question was Without consideration,’and is.'unenforceable.

Counsel invoke the application of the common-law rule, which has been followed in this State, that,, where. part payment of a liquidated demand is made iii full settlement of the debt, no consideration exists for this promise of the creditor to release the remainder of his debt, and an action may be maintained for , it by the creditor. North State Fire Ins. Co. v. Dillard, 88 Ark. 473, 115 S. W. 154; Pettigrew Machine Co. v. Harmon, 45 Ark. 290; St. L. Sw. Ry. Co. v. Mitchell, 115. Ark. 339, 171 S. W. 895; Ledwidge v. Ark. Nat. Bank, 135 Ark. 420, 205 S. W. 808; United States v. Bostwick, 94, U. S. 53; said Fire Insurance Assn. v. Wickham, 141 U. S. 564.

In Clayton v. Clark, 21 So. 565, 37 L. R. A. 771, 60 Am. St. Rep. 521, the Mississippi Supreme Court, in a vigorous opinion, declared the rule to be absurd and unreasonable, and expressly set it aside.

In a case-note to 41 A. L. R. 1490, it is said that the. general rule that part payment of a liquidated indebtedness is no consideration for the discharge of the entire debt has-always been regarded as technical and unjust, and that the modern tendency of the courts has been to enlarge-the exceptions to the rule in order to avoid its harshness, and to carry into effect settlements,' adjust7 ments and compromises.

In Chicago, Milwaukee & St. Paul Ry. Co. v. Clark, 178 U. S. 353, the Supreme Court of the United States, in commenting upon the rule, said:

‘‘The result of modern cases is that the rule only applies when the larger sum is liquidated, and when there is no consideration whatever for the surrender of part of it; and, while the general rule must be regarded as well settled, it is considered so far with disfavor as to be confined-strictly to cases within it.”

While our own court has adhered to the rule,'it has recognized exceptions to it. One of these is' that part payment of a liquidated indebtedness by a third person is a .sufficient consideration for its acceptance by the creditor in the discharge of the entire debt. Pope v. Tunstall, 2 Ark. 209; Gordon v. Moore, 44 Ark. 349; and Wilks v. Slaughter, 49 Ark. 235, 4 S. W. 766.

In the Pope v. Tunstall case the court said that any change or alteration which renders the creditor’s situation more advantageous or the debt more secure, will suffice.

This court has also held that, in cases of contract for the payment of a liquidated sum-of money, the payment of a less sum will not be a good satisfaction unless it was-paid 'and accepted before the time when it'was to have been paid, or at a different place from that appointed for the payment. Cavaness v. Ross, 33 Ark. 572, and Martin-Alexander Lumber Co. v. Johnson, 70 Ark. 215, 66 S. W. 924.

So, too, it has been held that an agreement by a debtor not to go into bankruptcy and thereby be discharged from his debts furnishes a sufficient consideration to support a contract by the creditor to accept less for his debt than the full amount thereof. Dawson v. Beall, 68 Ga. 328; Hinckley v. Arey, 27 Me. 362; and Her man v. Schlesinger, 114 Wis. 382, 91 A. S. R. 922, 90 N. W. 460.

We think that, under the facts of this case, the contention of Martin that the agreement to take 75 cents on the dollar for his county warrants was without consideration and for that reason invalid, is without merit, In the first place, it may be said that, under our Constitution, the county court is the general fiscal agent of the county, and has power to do all things necessary to the preservation of its funds. Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 572. In the exercise of this power the county court might have called in all the county warrants for cancellation and reissuanee, and might have canceled all those which had been illegally issued or whose issuance had been procured by fraud. Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40; Izard County v. Vincennes Bridge Co., 122 Ark. 557, 184 S. W. 67; and Izard County v. Bank of Melbourne, 123 Ark. 458, 185 S. W. 794.

Constitutional Amendment No. 11, authorizing county courts to issue bonds to secure the indebtedness outstanding at the time of its adoption, is self-executing, and the county court need not await the passage of an enabling act to order a sale of bonds. Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22, and cases cited.

Before the agreement under consideration was made between Martin and the county judge, the former owned certain county warrants, which are general orders payable when funds are found in the county treasury, and which are to be paid in the order of their presentation. These warrants could not be paid until there were funds in the county treasury available for the purpose. Since the issuance of the warrants in question, it appears that there had been no funds out of which they could be paid, and they had not been paid for want of funds.

It is true that the warrants could be used in the payment of taxes by the holders thereof, but, on account of there being no available funds from which to pay them, they had depreciated in value until they were not worth exceeding 60 cents on the dollar. In order to secure the price of 75 cents on the dollar, Martin made an agreement with the county judge that, if he would exercise his discretion in issuing bonds, he would buy up other outstanding warrants and take 75 cents on the dollar for them.

Upon the situation being explained to the prosecuting attorney and others who held county warrants, they sold their warrants to Martin at a discount, and the county judge assisted Martin in buying up these warrants, so that he could make a profit by the county paying him 75 cents on the dollar for them. Then, pursuant to the agreement, he exercised his discretion and issued bonds to an amount which would pay off these warrants at 75 cents on the dollar, and thereby put the county on a cash basis.

These facts differentiate this case from Schlessinger v. Schlessinger, 39 Col. 44, 88 Pac. 970, where it was held that payment by a debtor of a sum less than is due under his agreement to the creditor, who executes a release, not under seal, purporting to discharge the debtor of all claims under the agreement, is not a satisfaction of the debt, though the debtor borrowed the money with which to make the payment.

In the first place, it may be said that one reason for so holding was that there was no averment that the plaintiff knew about the defendant’s borrowing the money. Then, too, the debt was due at a certain date, and it was the duty of the defendant to pay it on that date, either with his own money or with borrowed money. It was a question whether the county judge could be compelled to issue bonds under Amendment No. 11 to secure money to pay off the existing county warrants. Martin is also charged with knowledge that the county judge had the power to call in the scrip for cancellation and reissuance, and that he might refuse to issue scrip which was illegal or whose issuance had been fraudulently procured in the beginning.

It is true, that there is no evidence in the record tending to show that any of the scrip held'by Martin was illegal or fraudulently .issued, hut Martin was a scrip dealer, and had purchased all of his county warrants from various persons, and knew the hazards attached to the calling in of the county warrants by the. county judge for cancellation and reissuance. Martin also knew that no levy of taxes could be made beyond the. constitutional limit for the purpose of paying county warrants. These facts were sufficient to make the case at bar .an exception to the general rule, and the mutual promises and forbearance of the county judge and Martin were sufficient consideration for the execution of the agreement in question.

On the question of the statute of frauds, but little need be said. The facts recited above constituted such a substantial part of the performance of.the contract as in any event to take it out of the statute of frauds. Storthz v. Watts, 117 Ark. 500, 175 S. W. 406; and Newton v. Mathis, 140 Ark. 252, 215 S. W. 615.

Again, on the question of the jurisdiction of the chancery court a short discussion will suffice. The record shows that Martin had numerous county warrants of various denominations, which would cause a multiplicity of suits, had a resort been made to 'law; Again, under the allegations of the complaint and the proof made' in the case, Martin'was not entitled to collect more thah 75 cents oh the dollar of the facé value of his county warrants, and the' collection of an amount in excess of that sum would have amounted to an illegal exaction, which any citizen of the county might prevent by the injunctive process of a court of equity. ' '

' The result of our views is that the decree of the chancery court was- correct, and it will he affirmed.

DISSENTING OPINION.

McCulloch, C: J.

My conclusion is that the alleged contract is not enforceable against appellant, for several reasons.. In the first place, the contract was not made by the county court, but with the county judge in vacation, and there was no authority for the execution of such a contract by the county judge. Ross Drainage District v. Clark County, 153 Ark. 175, 239 S. W. 740. In the next place, there was no consideration to support the contract, which was, in substance, one to accept payment of county warrants at less than face value. It was merely ah executory contract to accept, without other consideration, payment of a smaller sum than due in full discharge of the debt. This court held in Dreyfus v. Roberts, 75 Ark. 354, 87 S. W. 641 (departing from the rule theretofore adhered to by this court), that, when an agreement to discharge a debt by the payment of a smaller sum has been fully executed, “and such discharge is evidenced in writing, * * * it is a valid and irrevocable act”; but in the later case of North State Fire Ins. Co. v. Dillard, 88 Ark. 473, 116 Ark. 154, it was said that ‘‘where the agreement is not executed, and is not evidenced by any writing, then it is not a bar to an action on the original debt; and, not being a bar, it is immaterial why the agreement is not executed.” Later on, in the opinion in that case, this court said: “Still, the promise- is to satisfy, and until that promise is fulfilled the agreement has not become binding.”

There was no other consideration than the promise of the county judge to issue bonds under Amendment No. 11, fpr, if the bonds were issued, it could only be. for the purpose of paying old indebtedness of the county, of which appellant’s warrants formed a part, and,when the bonds, were issued and the proceeds thereof received by the county treasurer, these funds could only be applied in the payment of such old indebtedness. In other words, appellant had the absolute right to have the warrants paid out of the funds which accrued from the sale of bonds; therefore the promise of the county judge was merely to comply with the law in that respect.

It is not important at this time to consider whether or not creditors of a county can compel the county court to issue bonds pursuant to Constitutional Amendment No. 11, for, if they have that right, it is one which exists under the law and does not result from contract, and therefore the promise of the county judge to issue the bonds added nothing to appellant’s legal right. On the other hand, if the issuance of bonds was merely discretionary with the county judge, Ms agreement to do so was merely a promise to pay in part the debts of the county in discharge of the whole, and, as before stated, the unexecuted ag’reement was unenforceable.

Finally, it is clear, I think, that the contract was unenforceable against appellant for the reason that there was no mutuality, in that it was unenforceable against the county. As before stated, the power to issue bonds is one created by law, and such power, or duty to exercise the same, cannot be enlarged or restricted by contract; and if the county court cannot be compelled under the law to issue bonds, then it is under no such compulsion by virtue of the contract. And the contract, even if it had been made by the county court itself, would have been unenforceable, hence appellant is not bound, I dissent therefore from the conclusion of the majority.


author: Smith, J.

text:
    Road Improvement District No. 1 of Conway County v. Mobley Construction Company.
    Opinion delivered June 28, 1926.
    1. Highways — relation of district to subcontractor. — Approval by a road improvement district of the contractor subletting a portion of the work did not create a contractual relation between the district and the subcontractor.
    2. Contracts — rights of third person. — Where a contract is ' . made between two parties, in order that a third person may sue the promisor for a breach of the contract, the obligation of the promisor to the third person must be one which existed, at the time of making of the contract, or one which grew out of the contract itself, and where the benefit to the third person accrued subsequently, as a mere incident, he cannot recover.
    3. Highways — liability of district to subcontractor. — The fact that a road improvement district consented to subletting of a portion of the work did not render it liable to the subcontractor, on stopping the work, for profits which the latter might have made by performance of the subcontract.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Strait & Strait, for appellant.

      Carmichael & Hendricks, for appellee.
   Smith, J.

The Mobley Construction Company, hereinafter referred to as the Mobley company, the plaintiff below, alleged as its cause of action the following facts: Road Improvement District No. 1 of Conway County, hereinafter referred to as the road district, entered into a contract with the P. J.- Lewelling Construction Company, hereinafter referred to as the Lewelling company, to- build and construct a road in Conway County, Arkansas, according to plans and specifications on file at that time in-the office of the engineer of the road district. On March 15, 1920, by and with the consent of the road district, the Lewelling company sublet to the Mobley company certain portions of the work included in the contract 'between the road district and the Lewelling company. The contract between the Lewelling company and the Mobley company was made an exhibit to the complaint, and it was there provided that that contract should be governed by the contract between the road district and the Lewelling company as to prices, grades and payments.

It was further, alleged in the complaint that the road district consented to this action by a resolution adopted by its. board of directors on the............day of January, 1920, which reads as follows: “On this............day of January, 1920, is filed with the board of commissioners of Road Improvement District No. 1 of Conway County, Arkansas, a copy of the agreement between the P. J. Lewelling Construction Company, the contractor for the surfacing of the roads being improved within the district, and the Mobley Construction Company, a subcontractor, in which agreement the subcontractor undertakes to perform certain,portions of the work undertaken by the original contractor, and the board in open session, after the adoption of a resolution approving the foregoing contract and agreement, by its individual members, hereunto sign this approval in the name of the district and by the members as its commissioners.”

It was alleged that the Mobley company entered upon the performance of the contract and was ready, willing and able to complete it, when, the road district ordered the cessation of all work.

The Mobley company sued both the Lewelling company and the road district for damages for the breach of contract. Neither the road district nor the Lewelling company answered, and the Mobley company offered testimony to the effect that it would have earned, had it been allowed to complete the contract, a profit of $73,585.01, the amount for which it sued, and a decree was rendered in. its favor for that amount against, both the road district and the Lewelling company, and the road district has appealed.

For the affirmance of the decree of the court below it is insisted that the road district was liable because it had adopted and approved the subcontract, and, by the passage of the resolution set out above, the road district approved the contract of the Mobley company with the Lewelling company, and this made the district' a party to that contract, and it became a joint contract whereunder any party in -interest might sue for damages for its breach.

We do not agree with counsel in this contention. There was no contractual relation between the road district and the Mobley company. The contract between the road district and the Lewelling company was not; abrogated, nor was the contract between the two contractors substituted for it. The- second or subcontract covered only a part of the work required to be performed by the first contract, and the sum due by the district would have been dependent on the completion of the entire improvement, and not on a portion thereof.

We think the purpose and legal effect of the resolution set out above was that the district consented to a subletting of a portion of the work, and in doing so the district assumed no contractual relation with the subcontractor. So far as the district was concerned, there was only one contract for the construction of the improvement, and not two. The subcontract between the Lewelling company and the Mobley company left the original contract between the road district and the Lewelling company in full force and effect, and the liabilities of the road district for the construction of the completed improvement are determinable by that contract, and by it alone, and the Mobley company was not a party thereto. Had the Mobley company defaulted in the performance of this subcontract, the recourse of the district would have been against the party with whom it had contracted, which was the Lewelling company, and not the plaintiff Mobley company.

It is insisted that the Mobley Construction Company was a party for whose benefit the original construction contract was made, and it had the right therefore to sue for the damages sustained by it. We do not'agree with counsel in this contention. In the first place,' the' contract did not inure to any one’s benefit except the P. J. Lewelling Construction Company, which was'The- only party to it.

The- decision of this court in the case of Dickson v. McCoppin, 121 Ark. 414, is a second answer to this contention. In that case an improvement district had let a construction contract to McGoppin, and Dickinson was employed as engineer by the district. A controversy arose over the compensation due Dickinson, and he sought to avail himself of certain provisions of the contract between the district and McGoppin,. but. it .was held (to quote a head-note) that:

“Where a contract is made between a promisee and a promisor for the benefit of a third party, in order that the third party may sue the promisor for breach of the contract, the obligation of the promisor to the third-party must be one which existed at the time of the making of the contract, or one which grew out of the contract itself; and where the benefit to the third party accrued subsequently, as a mere incident, he cannot recover.”

There was no obligation to the Mohley company when the •construction contract was made, and such rights as it had itself arose out of the subsequent contract between itself and the Lewelling company, a contract to. which, as we have said,- the road improvement district was > not a party. ' ..

. ¡We conclude therefore that, in consenting.to the subletting, of a portion of the work which, the Mobley-company contracted with the Lewelling company to-perform, the district assumed no contractual relation. with. the Mobley company, which rendered it liable to that company for any profits it might have made by the performance, of its subcontract.. .

The judgment against the road district-is therefore reversed, and, as no cause of action is stated against it, the cause against the road district is dismissed. ,■


author: Smith, J. McCulloch, C. J.,

text:
    Bacquie v. State.
    Opinion delivered June 28, 1926.
    1. Intoxicating liquors — sale—sufficiency of evidence. — Evi- : denee held to sustain conviction of selling - liquors. '
    2.-. Witnesses — impeachment .op witnesses. — Under Crawford. & Moses’ Dig., § 4187, providing that a witness may. not be impeached “by evidence of particular wrongful, acts, except that it may be shown, by the examination of a witness, or record of a judgment that he had been convicted of a felony,” held in 'a prosecution for selling intoxicating liquor, , where' accused, denied having .been convicted of selling intoxicating liquor, which is a misdemeanor, it was error to impeach her by proof of her having been' convicted of selling same, such conviction having no relation to the offense charged.
    Appeal from Pulaski Circuit Court, First Divisiqn; John W. Wade, Judge;
    reversed.

      Booker & Booker, for appellant.

      E. W. Applegate, Attorney General, and Darden Moose, Assistant, for. appellee.
   Smith, J.

Appellant was tried under an indictment containing two counts, the first charging her with selling intoxicating liquors and the second, with the offense of procuring intoxicating liquors, She was convicted on the first count and acquitted on the second, and has appealed.

Mrs. Calvin Wilson, a white woman, testified that she and her daughter, Mrs. Hazel Naylor, went to the restaurant of appellant, a colored woman, and asked for. some whiskey. They went hack into the kitchen and told appellant that Mrs. Naylor was cramping to death, and they wanted some whiskey, and that appellant produced a bottle of whiskey, and the cramping lady and the- non-cramping lady each took a drink, for which they paid appellant a dollar.

Appellant admitted the women were at her restaurant, and that they came into -her kitchen and inquired for whiskey, but she denied that she sold them any, and her cook corroborated her in this denial. This conflict was, of course, a question for the jury, and the testimony is legally sufficient to support the verdict returned by the jury.

We think, however, that error was committed in the cross-examination of appellant, and that this cross-examination may have weighed with the .jury in determining this conflict in the testimony. We quote from the transcript the following cross-examination of appellant:

“Q. In February, 1922, did you sell any whiskey? A. No, it was Spot McNutt. Q. In May, 1924, didn’t you disturb the peace? (Objected to; objection overruled, and exceptions saved by defendant). A. I don’t know that I did. Q. In January, 1922, didn’t you disturb the peace? (Objected to by defendant; overruled, and exceptions saved). (No answer). Q. In April, 1925, didn’t you transport whiskey? A. No.. Q. In April, 1925, didn’t you possess liquor for the purpose of sale? (Objected to by defendant; overruled, and exceptions saved). A. No. Q. Decemlber 9, 1921, were you not convicted in this.court for procuring liquor? A. I don’t know whether I was convicted, but I paid ¿ 'fine.' Q. June 7,1922, in this court you were convicted on another charge for procuring liquor? (Objected to by defendant; overruled, and exceptions saved). A. No.” .

After appellant had denied that she had been convicted on June 7, 1922, for procuring liquor, the attorney representing the State said: “Q. June 15,1925,-this record of the circuit court shows you were convicted.for possessing liquor .for sale. (Exhibiting record of circuit court). Q. Listen to these two records of conviction that I read from these records here: . (Here counsel reads records of cases Nos. 21805 and 18881 as follows, to wit.”

Thereafter .counsel read at length from.- the court proceedings had on June 7, 1922, the judgment of the court in cause No. 18881, .showing the- trial and, conviction of appellant on a charge of procuring liquor, wherein she was fined ‡200.. Counsel for the State then read from the court ..proceedings had on June 15, 1925, the judgment of the court, in cause 2Í805, wherein appellant,was fined $100 for possessing liquor.

It is .recited in the transcript that "defendant objects to the reading of .the record of the two., convictions referred to; objection overruled, and exceptions saved.”

Appellant was then asked: “Q. ..Do. you recall these transactions?’’.and-answered: “Á.. No, I do not.'”, She was then asked: “Q. Doesn’t that refresh your memory, my reading .these two 'convictions?” Appellant answered: “A. That one is the only oné, only, one of them; the other one was Solly Magiiess; he paid that fine, that wasn ’t my case. ”

In the course of the'argument the attorney representing the State referred to this testimony as follows:' '“I have tried to show you by the evidence of other liquor, transactions by the defendant that she is an old and constant offender against the liquor law;s of the 'State,” Further on in the argument the prosecutor said: “You will see from the evidence that the defendant is not a virgin in the liquor business, judging from the number of times she has been convicted of liquor violations. ”

Appellant objected to these remarks at the time they were made, and her objections were overruled, and exception's were saved.

We think .this testimony was incompetent, .and. its prejudicial nature is shown by the use which was made of -it in the argument quoted from. These judgments were read -to The jury, and are copied in full in the transcript, and it appears that in the first case she was .fiiied $200, and $100 in second. Appellant was asked specifically if she had not been convicted on June 7, 1922, but denied that she had been. The record read in evidence was, of course, a contradiction of, her testimony. The date of this trial was about four years, prior to the one from which this appeal comes, and there wasrno connection between the two offenses, and. the first offense was necessarily collateral to the other.

Section 4187, C. & M. Digest, reads as follows: "A witness may be. impeached by .the party against whom he is produced; by contradictory evidence. ;by showing that he has made statements different from his present testimony, or by evidence that his general reputation for truth or morality renders him unworthy of belief, but not by evidence of particular wrongful act, except that it m.ay be.shown, bythe examination of a witness, or record of a judgment, that he had been convicted of a felony. ”

The judgments read" into the .record showing prior convictions were not for felonies, and the offenses, upon which these prior-convictions were secured have'no relation to the offense charged. The court should not therefore. have allowed the State to.contradict the witness by proving that she hadbeen convicted of-the misdemeanors which she denied having committed. McAlister v. State, 99 Ark. 604; Perkins v. State, 168 Ark. 710; Tullis v. State, 162 Ark. 116; 7 Enc. of Evidence, page 180.

If the testimony had been competent, it would have been proper for the prosecuting attorney to comment upon it; but its incompetency is shown by the use which was made of it. The necessary effect of the testimony was to leave the impression, not only that appellant was untruthful’and therefore unworthy of belief as a witness in her own behalf, but to show also that she was an old offender or,.as it was expressed in the argument, “not a virgin” in crime.

For the error in admitting this testimony the judgment must be reversed, and the cause will be remanded for a new trial.

McCulloch, C. J.,

(dissenting). The judgments of conviction were not introduced in evidence, but were merely read to appellant, as a witness, to refresh her memory.' This is a technical distinction, but it is as substantial as the theory that appellant may have been prejudiced by the incident further than discrediting her as a witness, which the State had the right to do. When we look, to the. substance of the incident — disregarding the form in which it got to the jury — we see that appellant admitted the correctness of the record showing her conviction of two offenses. She said that one of the convictions was for her own offense, and that the other was for the offense of Solly Magness, who paid the fine. In other words, she admitted that she was twice convicted— once for procuring liquor, and the other for possessing it, but she explained by saying Solly Magness was the real offender in one of the eases. The State was bound by her answer, and the court would have so instructed the jury if so requested, but no such request was made.

It seems to me that the trial court, in substance and effect, merely followed the rule long adhered to. by this court that a witness may, on cross-examination, be interrogated concerning past offenses involving moral turpitude which are calculated to affect credibility.’


text:
    Jones v. Fowler.
    Opinion delivered June 28, 1926.
    1. Taxation — who ' may purchase at tax sale. — One who was administrator of a decedent’s estate and guardian ad litem of his minor children at the time dower was assigned, was not prohibited, after the administration had closed, from buying the land assigned as dower at tax sale after the administration had closed and the widow’s grantee was in possession.
    2. Taxation — who may purchase at tax sale. — One who was commissioner to assign dower to a widow is not prohibited thereafter from purchasing the land so assigned at a tax sale.
    3. Appeal and error — harmless error — admission of evidence.— The admission of • incompetent evidence will not be ground for reversal where it does not appear that it could have been prejudicial.
    4. Life estates — adverse possession — remaindermen.—While a valid tax sale bars the right of all interested parties, those holding remainder interests as well as the life tenant, yet, when the sale is void, one who enters under a void sale is a trespasser, and the statute of limitations does not run against the remaindermen until the expiration pf the life estate.
    5. Appeal and error — necessity of motion for new trial. — Error in directing the jury to find for the plaintiffs is not before the Supreme Court where no motion for new trial was filed.
    6. Taxation — invalid title — compensation for improvements.— Remaindermen who assert title to- land sold for taxes at void sale 50 years before, and since held by assignees of the purchaser in good faith and under color of title, are required to pay for betterments and taxes, though no tax deed was issued until after suit was brought.
    7. Taxation — recovery of forfeited land — betterments.—Crawford & Mioses’ Dig., § 3708, providing that one seeking to recover land sold for taxes should tender to the defendant in possession the taxes paid ¡by him and the value of improvements, applies where the defendant is- in possession under a donation certificate.
    8. Taxation — compensation for improvements — evidence.—In suit by remaindermen to recover land from a tax purchaser, evidence of the cost of improving and fencing adjoining land was admissible in determining the enhanced value of the land by reason of improvements.
    9. Taxation — void sale — recovery of taxes. — Where defendants in ejectment paid taxes on an 80-acre tract and were entitled to recover the taxes paid on two-thirds thereof, the amount recoverable may be computed by taking two-thirds of the taxes paid, where no testimony was offered showing any difference in value between the one-third and the two-thirds.
    10., Appeal and error — presumption.—Although a witness computed the interest on tax payments at 1Ó per cent.,, it will be presumed, in the absence of a contrary showing, that the jury obeyed the court’s instruction to allow 6 per cent. interest thereon.
    11. Judgment — amount.—Where successful plaintiffs ‘ in ejectment were awarded judgment for rents' and profits, and defendants given-a separate judgment for improvements, taxes’ and interest, it will be presumed that the amount of plaintiff’s .recovery was to .be deducted from the larger amount due to the defendants.
    Appeal from Yell Circuit- Court, Danville District; J. T. Bullock, Judge;
    affirmed.
    Ejectment of D. S. Jones and others, heirs of B. C. J ones, against J. S. Fowler, S. Bondi and O. L. Clement. Verdict was directed for plaintiffs, upon payment of the value of improvements. Plaintiffs appealed, and Bondi was granted a cross-appeal.

      Ward & Ward, for appellant.

      Jolm M. Parker,- for- appellee.
   Smith, J.

Appellants are. the children and heirs at law of B. C. Jones, who died in 1863,-and who was survived by his widow' and minor children; Jones owned at the time of his death 400 acres of land in Yell County, and in -1866 a proceeding was - had whereby : dower was assigned to the -widow in these lands. The lands assigned as doWer were described as the east half of the southeast quarter section 23, township 5 north, range 22 west* and .the west two-thirds of the, west half of-the southwest quarter section. 24, township 5 north, range 22 west; The last described tract was described by metes and bounds in', the order-assigning the. dower.

Mrs. Jones,- the widow, married one Columbus Carpenter, and -resided- with - him : on the'-lands above described until February 25,1867, at which timé they executed a deed to Elizabeth Ann White conveying the interest of Mrs. Carpenter in the lands. After conveying her interest in the lands, Mrs. Carpenter moved to, Texas, and resided there for a short time, when she returned to Clay County, in this State, where she resided until her death, which occurred July 25, 1919. Mrs. White allowed the land to sell for taxes, and has passed out of the case and is not a party.

The northwest, quarter of the southwest quarter section 24 was sold in 1869 for the taxes of 1868 to C. B. Mills, who received a certificate of purchase at the sale, blit no'demand was made for a tax deed until after the institution of this suit.

The southwest quarter of the southwest quarter, section 24 and. the east half of the southeast quarter section 23. were sold in 1872 for, the taxes - of 1871 to W. H. Ferguson, who received a tax deed June 29,1874, for both tracts.

. It appears that Ferguson had been the administrator of the estate of B. C. Jones and was the guardian ad litem for the minor children when the dower was- assigned, and it is.insisted that the tax sale to him .was void for that reason.. . It was stipulated, however, that Ferguson was discharged as administrator in 1869, and the. administration was then closed, and, at the time of his purchase at the tax sale, dower had been, assigned to the widow, whose grantee was in possession and had been for several years before the sale. We perceive, no reason therefore. why Ferguson could not buy at the tax sale in 1872,. long after the. administration had closed. We regard these facts as unimportant, however, for the reason that the. sale at which.Ferguson purchased was void for a number of reasons,; and the court so declared as a matter of law. .

It is. also argued that the. sale to Mills was void' for the reason that he had been a commissioner when .the dower was assigned. His duties as commissioner were performed in 1866, and he did not purchase pntil 1869, and we pe.rceive.no reason therefore why he . could not have purchased. But the fact that he was a commissioner is unimportant for the reason that the sale at which Mills purchased was void, and the court so declared as a matter of law.

Mills conveyed the forty-acre tract which he bought to W. H. Ferguson in 1869; Ferguson conveyed to Choate in 1880; Choate conveyed to John M.'Harkey in 1884; Harkey’s estate was partitioned, and this forty-acre tract was assigned to Olga J. Harkey, who conveyed to Henry M. Corn in 1906, who conveyed to S. Bondi and O. L. Clement in 1912; and Bondi and Clement conveyed to J. S. Fowler February 1, 1918. These deeds conveyed the entire northwest quarter southwest quarter, although* as we have said, the dower assigned to Mrs. Carpenter, in this tract was the west two-thirds thereof.

In a chain of title of equal length, beginning with W. H. Ferguson and ending with Fowler, the other two tracts were conveyed. Fowler’s immediate grantors of all three tracts were Bondi and Clement:

Upon the death of Mrs. Carpenter, her -heirs demanded possession of the land from-Fowler which had been assigned as dower to their mother, and, when the demand was refused, suit was brought to; recover- possession. This suit was begun June 21, 1921, but was dismissed for the reason that there was no affidavit showing tender of the taxes and betterments. Later — -and within a year — this suit was brought, and the affidavit showing a tender was filed.

It is assigned as error that the court permitted counsel for defendants to interrogate. D. S. Jones as to.-the consideration paid iby him to his sister for a.deed to his sister’s interest in the lands. This testimony was incompetent and should not have been admitted, but we do not see wherein it could have been prejudicial.

It is also assigned as error that the court permitted counsel for defendants to interrogate D. S. Jones concerning the tender .of the taxes, improvements ..and interest. But there can be no prejudice .in this, as the court treated the tender — whatever it was — as sufficient, to authorize the institution and prosecution of this suit, and, more than that, directed the jury to find that, plaintiffs were entitled to recover the lands. ¡

The case of Champion v. Williams, 165 Ark. 328, 264 S. W. 972, is authority for the action of the court in directing the jury to find for the plaintiffs for the recovery of the land. ’It was, of course, the duty of the life tenant to keep the taxes paid, and by § 10054, O. & M. Digest, it is provided that, if the life tenant neglects to pay the-taxes on the land so held, and shall not, within a year after the sale, redeem from the sale, “such person shall forfeit to the person or persons next entitled to such land in remainder or reversion all the estate.” But in the case just cited we held that, while a tax sale, if valid, barred the right of all interested parties, those holding remainder interests as well as the life tenant, yet, when the sale is void, one who enters under the sale is a trespasser, and the statute of limitations does not run against the remaindermen until the expiration of the life estate. That case was brought to recover the land within two years of the death of the life tenant, and the cause of action was held not barred by the prior possession of the defendants and their predecessors in title during the life of the life tenant.

Counsel for defendants, appellees here, insist for various reasons that the court erred in directing the jury to find for the plaintiffs for the possession of the land; but nowhere in their brief is it stated that a motion for a new trial was filed by them, and, in the absence of a showing that a motion for a new trial was filed and that this action of the court was assigned therein as error, the action- of the court- in so directing the jury is not before us for review.

It is strenuously insisted by counsel for appellants that the court was in error in charging the jury as to each tract of land “that, whether or not the deed purporting to be a tax deed is valid or invalid, is immaterial on the issues of betterments and taxes, and that, notwithstanding it might be invalid, still the defendants, under the record in the present case, are entitled to betterments and taxes.” There was no error in this instruction. . One tract of land had been sold for taxes fifty years before the death of the life tenant, and nearly that length of time had elapsed since the sale of -the other two tracts, and the defendants in the case had acquired title to all three ‘tracts through a chain of a half a dozen or more conveyances to each. The life tenant and the remaindermen had removed from the State, and when they returned to the State they resided in a distant county, and there is nothing in the testimony to show that the lands were not occupied and improved in good faith and under color of title.

It is true that no tax deed issued on the sale to Mills in 1869 until after the institution of this suit, but we have set out the chain of conveyances by which Mills’ title passed to the defendants, and these deeds constituted color of title. Moreover, as to- this tract of land to which no tax deed issued prior to the institution of the suit, the case of McCann v. Smith, 65 Ark. 305, 45 S. W. 1057, applies. There a donation deed had been issued to a tract of land which had been sold to the State. The sale was void for the reason that the taxes had been paid. There had not been two years’ possession under the donation deed at the time the owner brought suit to recover possession.

Two questions were presented for decision in that case, which the court stated as follows:

“First. Is two years’ adverse possession of a tract of land held by a donee, first under a certificate of donation, and then under a donation deed by the State, sufficient to bar an action against him, when the possession under the deed has not continued two years, and it is necessary to add it to that held under the certificate to make the two years’ adverse possession?
“Second. Is a donee, holding land under a donation deed executed to him by the State, entitled, in an action against him by the owner for the possession of the same, to recover the value of the improvements made by him on the land after a certificate of donation was issued to him, and before the deed was executed, when the land was sold or forfeited to the State after the taxes for. which it was sold or forfeited had been previously and in due time paid, and the owner recovers a judgment against him, in such action, for the possession of the same? ”

The court answered the first question by saying that the possession necessary to bar the “plaintiff, his ancestor, predecessor, or grantor,” must be held .under the donation deed, and, as the donee had not had possession under the. donation deed for that length of time, the recovery of the land 'by the owner was upheld.

' The second question was answered by holding that the donee was- entitled to recover the value of his improvements made after his entry under his donation certificate before as well as after the receipt of his deed. This conclusion was reached by the construction given §§ 2595 and 2597, Sandels & Hill’s Digest, which are to be found- as §§ 3708 and 3710, C. & M. Digest.

Section 3708, C. & M. Digest, so far as it relates to this case, provides as follows: “No person shall maintain an action for the recovery of any lands,- or for the possession thereof, against any person who may hold such lands by virtue of a purchase thereof at a- sale by the collector, * ,* # unless the person-so claiming such lands shall, before the issuing of any writ, file in the office of the clerk of the court in which suit is brought an affidavit setting forth that such claimant hath' tendered to the person holding such lands in the manner aforesaid, * * * the amount of taxes and costs first paid for said lands, with interest thereon from the date of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale, with interest thereon, and the .value of all improvements made on such lands- by the purchaser, his heirs, assigns or tenants, after the expiration of the period allowed for the redemption of lands: sold for taxes, and that the same hath been refused.”

In the case of McCann v. Smith, supra, Mr. Justice Battle, after quoting the provision of the section just quoted from relating to donation deeds, said: “The requirement of §§ 2595 and 2597 of Sand. & H. Digest, which makes it the duty of the owner to pay for improvements, is based' upon the equity and justice of the claim of the party who has made them in good faith, to compensation for the same, and not upon the legality or nonpayment of taxes. The Legislature evidently intended to encourage the purchase of lands sold for taxes, and to protect those making improvements on lands • so purchased in good faith, by securing to them compensation for the same, in the event they should for. any reason fail to hold the land. Color of title is not made, a condition to this right by §§ 2595 and 2597. Our answer to the second interrogatory propounded in the beginning of this opinion is that he is, provided he has made the improvements in good faith, and the owner is entitled to rents and profits.”

The tax deed obtained after the institution of the suit added nothing to the rights of the defendants, but, as appears from the case just quoted from, Mills and his successors would be entitled to recover the value' of their improvements and taxes, even though Mills had only a certificate of purchase and had not procured a deed.

The court permitted one D. F. Montgomery to testify what it had cost him to improve and fence lands adjoining the lands in litigation, and the admission of this testimony is assigned as-error. - The court stated at the beginning of the examination of this witness that the cost of clearing was not the measure of. betterments, but that testimony concerning cost would be admissible if the enhanced value equaled the cost of the improvement, and we think the examination of this witness and.others on .the same subject proceeded along the right line, and we think the rulings of the court in the admission of testimony and in the -instructions on the sub ject made-it clear that the money recoverable was.not necessarily the cost of the improvement but the enhanced value resulting from the improvement,. and that evidence of cost was admissible in determining that- fact- if the improvement enhanced the value of the lands.

The .witness Montgomery owned land adjoining the land in litigation, and. testified what it had cost' Mm to clear similar, land, and that he considered the enhanced value equal to the cost of the improvement. His testimony was, in substance, that it cost from thirty to thirty-five dollars per acre to clear similar land, and that, when cleared, the value of the land was increased from thirty to thirty-five dollars per acre. This testimony was competent.

Certain improvements on the land had been made by O. J. Harkey, and he testified as to the cost and value of the improvements, and that he made them in good faith, believing he was the owner of the land when the improvements were made. This testimony was objected to upon the ground that Harkey was not a party to the litigation. It is true, as counsel insists, that Harkey was not a party to the suit, but he had owned at one time the northwest quarter of the southwest quarter section 24 and the east half of the southeast .quarter section 23, and if, during his .ownership, he made improvements which resulted in an enhanced value, which existed at the time the suit was instituted, it was competent for him to so testify, although he was not a party to the suit.

Witness Henry Chaney had, after examining the taxbooks, made a tabulation of all the taxes paid on the west half southwest quarter section 24 and the east half southeast quarter section 23, and objections were made to this testimony. It was not insisted that the tax records or the tax receipts be produced, but that the tabulation showed the taxes paid on the whole of the west half of the southwest quarter, whereas plaintiffs claimed and sought to recover only the west two-thirds of this tract. ..The witness stated, however, that by taking two-thirds of the taxes paid on the entire tract the amount paid on the land in litigation would be determined, and this he did. We see nothing wrong with this calculation. Defendant and his predecessors in title claimed the whole of the eighty-acre tract and paid on it as a whole, and we see nothing inequitable in apportioning the taxes in proportion to the acreage, especially as no testimony was offered showing any difference in value between the west two-thirds and the east third.

It is insisted that error was committed in admitting Chaney’s tabulation because he had calculated interest at ten per cent., instead of six per cent. Section 3708, C. & M. Digest, from which we have already quoted, provides that the tax purchaser shall have interest on the amount of taxes paid, with interest thereon from the date of payment, “and the amount of taxes paid thereon by the purchaser subsequent to such sale, with interest thereon.” As the rate of interest is not stated, it will, be six per cent., and, while Chaney did calculate interest at ten per cent., the court told the jury the interest should: be calculated at six per cent., and we must assume that the jury obeyed the court’s instruction and made the necessary correction in Chaney’s calculation, the contrary not being made to appear.

It is insisted that the jury allowed an excessive amount for the enhanced value of the land. The evidence on this subject is conflicting, and it would serve no useful purpose to set it out or to review it, and it will suffice to say that the court correctly declared the law on the subject, and the testimony on behalf of defendants is sufficient to support the finding made by the jury.

The jury found the value of the rents recoverable to be $1,033.60, and the improvements, taxes and interest to be $3,771.65, and the judgment was rendered accordingly, without specifically directing that the amount of rents be deducted from the larger item and that plaintiffs pay only the difference. This should have been done, but, in our opinion, such is the effect of the judgment, and we so construe it without remanding it for correction.

Certain other errors are assigned, but they relate to matters already thoroughly settled.

Upon a consideration of the whole case we find no prejudicial error, so the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Sternberg Dredging Company v. Dawson.
    Opinion delivered June 28, 1926.
    1. Damages — breach of conteact.t-Iii an action by a subcontractor against the contractor for abandonment of a clearing contract, the measure of damages is the difference between the contract price and the' reasonable cost of doing the work at the time it should have been done.

      2. Trial — instruction—undue prominence of particular matter. —In an action by a subcontractor against the contractor for ; breach of a contract to clear a right-of-way, an instruction that •. weather conditions may be considered in determining damages for such breach was properly refused as stressing one only of the elements of the subcontractor’s expense to be considered in'ascertaining the cost of the clearing.
    3. Trial — instruction—necessity of specific request. — A general instruction on the measure of damages for breach of a contract ' wás not erroneous in omitting the specific elements of damage,’ in the absence of a request embracing all such elements.
    Appeal from Poinsett Circuit Court; G. E. Keck, Judge;
    affirmed.

      Harrison, Smith & Taylor, for appellant.

      JohA% W. Scobey and Gautney & Dudley, for appellee.
   Humphreys, J.

This is an appeal from a .judgment for $2,000, rendered in the circuit court of Poinsett County in favor of appellee against appellants, and is the second appeál in the cause, the first appeal being reported in 164 Arkansas Reports, at page 24, under the same style as this. Reference is made to that case for a full statement of the facts herein. The judgment was reversed on the first appeal, and the cause was remanded for a new trial because tbe trial court erred in giving instructions Nos. 10 and 11, which are set out in full in the statement of that case. The cause was retried upon testimony not materially different from that introduced in the first trial, and under the same instructions, except Nos. 10 and 11, aforesaid. In the instant case the court eliminated the erroneous matter from the instructions given on first trial and instructed the jury in accordance with the rule for the measure of damages announced by the court. This rule was formulated and given as instruction'No. 9, which is as follows:

“If you find for the plaintiff in this case, the measure of damages he would be entitled to recover would be the difference between the contract price for clearing the right-of-way that remains uncleared at the time (which, under the evidence here, and under the pleadings in this case,.is 125 acres) and the amount that it would have reasonably cost the plaintiff to have cleared said right-of-way at the time at which it should have been clearéd, which was during the year 1922, if there was any difference. If you find that there was no difference, then, of course, the plaintiff would not be entitled to recover, even though you adopt his theory of the case, but, if you should adopt his theory of the ease, and find that he is entitled to recover, then he would be entitled to recover only' such difference, if there was any difference. ’ ’ A general objection was interposed to this instruction, which was overruled; whereupon appellants requested the following instruction upon the measure of damages, which was refused:
“If you find from the evidence that, at the timé improvement No. 59 was relocated, the season was wet and a considerable quantity of water was over the right-of-way, and you further find that it would be necessary for the clearing contractor to have performed the work under such circumstances,'you may take these facts into consideration in determining the amount of profit which he would have made.”

It is now contended that the court erred in giving instruction No. 9 because it did not take into account the weather conditions as an element to be considered by the jury in ascertaining the cost of clearing, and in refusing to give appellants’ requested instruction No. 5 because it did take weather conditions into account as an element for the jury to consider in ascertaining the cost of clearing the right-of-way.

Appellants’ request No. 5 was erroneous and properly refused, because it singled out and emphasized weather conditions alone as an element to be considered in arriving at the cost of the clearing, whereas the testimony reflected that other elements should be considered in arriving at the profits to be made in clearing the right-of-way, sueh as the cost of labor, the nature and the condition of the ground to be cleared, etc. Had instruction No. 9 referred to weather conditions alone as an element' to be considered in arriving at the profit to be reaped from clearing the right-of-way, it would also have been erroneous. It announced the general rule as to the measure of damages applicable in the case without setting out the elements that should be considered by the jury in ascertaining the profits which appellee could have made on his contract for clearing the right-of-way. If appellants desired an instruction specifically setting out every element to be considered by the jury in arriving at the profits, if any, a correct instruction embracing them all should have been requested.

Appellants mate the further contention for a reversal of the -judgment that they were entitled to a peremptory instruction upon the ground that the undisputed evidence shows that appellee either abandoned the contract himself or acquiesced in the abandonment of it by appellant for clearing the right-of-way, and that there had been an accord and satisfaction of his alleged claim.' This court ruled on the former appeal that all these issues were facts for the jury, under the evidence, and that they were correctly submitted to the jury by the court. As stated above, there was no material change in-the evidence on the retrial of the cause, so the contention of appellants is without foundation. -

No error appearing, the judgment is affirmed.


author: McCulloch, C. J..

text:
    State use Arkansas County v. Pollard.
    Opinion delivered July 5, 1926.
    1. Appeal and error — conclusiveness of record. — On appeal the record will be accepted as correct, as against a contention to the contrary in the'brief.
    2. ' Appeal and 'error — presumption in absence of Evidence.— ‘ Where the evidence was not preserved in the- record, it' will be _ presumed on appeal that -the recitals of . the" decree and findings . ^ of-the court were correct.
    3. Sheriffs — tactions for.accounting. — Under Crawford & Moses’ , Dig., § 8312, authorizing the prosecuting attorney “to commence and prosecute actions, both civil and criminal, in which the State or any county in his'circuit may ibe concerned,” the prose- : ciiting attorney may bring an'action for accounting'agáinst a sheriff to recover interest on public funds and excessive fees, without an order of the county court .directing him to .bring such action, and, where such authority is exercised, it will be presumed, in the absence of a contrary showing, that it was rightly .exercised.
    4. -Equity — waiver of objection to jurisdiction. — Where a party has invoked' the jurisdiction of the chancery court, he cannot ' thereafter object to the jurisdiction unless the subject-matter is wholly without the jurisdiction of the court under all circumstances.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    affirmed.

      Botts S O’Daniel and W.J. W.aggoner, for appellant.

      Bogle & Sharp, B, E. Holt and John L.~ Ingram, amici .curiae.

   McCulloch, C. J..

Appellee served as .sheriff and e'x.pffidio collector of Arkansas County for .two consecutive terms, beginning on. January 1, 1921, and ending December 31, 1924; and.on November '21, 1924, an action .was instituted against him by the State of Arkansas for the use. and benefit of the State- and the county and of the school districts of the county, to recover unaccounted-for interest on public funds deposited in bank, and also to recover fees -and emoluments of office in excess of $5,000 per annum. Each of the. four complaints was identical and the prayer of each was for the same recovery, and it does not appear why separate actions were instituted, but this is unimportant, for the reason that they were consolidated and tried as one case, and a single decree was rendered by the court in favor of appellee. The case therefore may be treated as one case.

In the complaint it is alleged in substance, alter setting forth the service of appellee in the office of sheriff and collector for the period of time mentioned above, that, during each year of appellee’s incumbency, he deposited public funds in banks in the county and received interest thereon without accounting therefor to the county, and that he had also received- each year fees and emoluments of office largely .in excess of $5,000. The prayer of the complaint was for an accounting of all funds received by appellee by virtue of his office, and that there be a final decree against appellee “for all funds received by him during the four years of his official term as sheriff and ex o'ffieio collector in excess of the $20,000 already determined by- law; * * * for all sums received by him as interest from any 'bank or depositories on account of the-placing of said funds belonging to the plaintiffs or any of them in said banks or depositories.” The name of the prosecuting attorney of the district appears signed in his official capacity to three of the complaints, and all of the complaints are signed by Mr. A. G. Meehan as attorney.

There was an adjourned day of the chancery court held on December 9,1924, and appellee appeared in court on- that day in person and by attorney, and waived service of process and 'filed his answer, denying all the allegations of the complaint. A final decree was rendered by the court, reciting the appearance of all the parties and the announced- rea,diness of both sides- for trial, and the trial of the cause upon the “complaint's of the plaintiffs, the answers of the defendants,-and-the testimony of C. E. - Condrey, M. F. Montgomery, W. B. Pfefer, E. C. Benton, Arch Rawlins and N. P. Burd on behalf of the plaintiffs, and J. S. Pollard, E. B Gibson and Mlrs. Annie M. -Connor on behalf of the defendants, the testimony of said witnesses being taken ore terms at the bar of the court, together with certain documentary evidence, which was properly identified and made a part of the record, and other evidence introduced on behalf of the parties.” The decree also recites a finding in favor of appellee. The court found expressly that appellee had made his settlements regularly and accounted for all public funds which had come into his hands. The oral evidence was not preserved, and no appeal to this court was prayed for at the time. Six months later, and on the last day allowed for an appeal, one was obtained from the clerk of this court on behalf of the plaintiffs below. The transcript contains only the pleadings and the decree.

It is contended, in the first place, that the suit is a collusive one, brought without authority in the name of the 'State, for the purpose of obtaining an adjudication in appellee’s favor to protect him from other hostile litigation which might ensue in the future. The difficulty about this contention is that the evidence' does not justify the charge, which was made only in the printed argument here. The complaint is regular on its face and appears in the record to have been signed by the prosecuting attorney in his official capacity, as well as by another attorney. The court recited in its decree that the plaintiff was represented at the trial by the prosecuting attorney in person as well as by Mr. Meehan. In the brief there is a denial that the prosecuting attorney was in fact present, but we must accept the record here as being authoritative. None of the evidence introduced has been preserved in the record, and we must presume that the recitals of the decree and the findings of the court are correct. There has been no effort made, so far as this record shows, to attack the good faith of the officers in bringing the suit, hence we are not at liberty to infer that there was any collusion merely because • appellee entered his appearance and consented to trial without process being served upon him. In' other words, the decree is regular on its face, and, in the absence of a showing to the contrary, we must assume that it was correct.

It is also contended that the prosecuting attorney had no right- to institute the actioh except on orders of the'county court, ánd there is .’nothing in. the record to show that there was áñ" order of the county court made directing him to bring” the'suit. 'Our attention is not called to • any statute providing, that a prosecuting attorney can only institute an action on’authority granted by the county court.' On' the contrary, the statute confers power, upon the prosecuting attorney to'“commence and prosecute actions, both civil and criminal, in which the Státe or any county in his circuit may be concerned.” Orawfbrd & Moses’ Digest, § 8312. It may bé that the county court''has the power to'control litigation, but, :"even if that be true, it would require'affirmative action on :thé:part of the county’court 'to withdraw litigation instituted'by'the prosecuting'attorney. At any.‘rate, the authority of the prosecuting attorney being expressly granted by statute, wé indulge, the presumption that the authority was rightly exercised.

Finally, it is contended that the chancery court was without jurisdiction, and that therefore the decree should be reversed and the action dismissed for want of jurisdiction. It has .been, held by this pourt in numerous cases, beginning, with, State v. Turner, 49 Ark. 311, that the common-law jurisdiction of the chancery court to set .aside' settlements of.public officers, on account of fraud or mistake was''not tallen away by the statute providing that the county court may, within two years from, the .date of the . settlement, readjust such settlements .for errors. The contention now is that . the jurisdiction in chancery remains as to setting. aside a settlement for fraud after the expiration of two years allowed for readjustment in the county court, but we do not find it necessary to enter into a discussion of that question, for the reason that, even if that contention be sound, both parties appeared and submitted to the jurisdiction of the court, which might or might not have been exercised, according to the facts alleged and proved, and it is too late now + raise the question of jurisdiction for the first time. In other words, this is not a case where the subject-matter of the litigation was wholly heyond the jurisdiction of the chancery court, but it is one where the court-.had jurisdiction of the subject-matter, to be exercised according to- the circumstances of the particular case. Where a. plaintiff has invoked the- aid of the chancery court, he cannot thereafter object to the jurisdiction of the ’court, unless the subject-matter is wholly without jurisdiction of the court under all circumstances. Sexton v. Pike, 13 Ark. 193; Cockrell v. Warner, 14 Ark, 345; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Young v. Fowler, 132 Ark. 145, 200 S. W. 813; Gray v. Malone, 142 Ark. 609, 219 S. W. 742.

The chancery court' found, presumably upon ..sufficient evidence, that appellee, had made his settlement with the county court regularly and in accordance .’with law, and that he had accounted for all of the funds which he is'charged in the complaint in.this cause with wrongfully withholding. The proceedings below.being regular, and, the court having acquired jurisdiction, we find nothing which would justify us in .deciding that the court was wholly without jurisdiction.

The decree is therefore affirmed.


author: McCulloch, C. J.

text:
    Cole v. Branch & O’Neal.
    Opinion delivered July 5, 1926.
    1. Appeal and error — conclusiveness of verdict. — An issue based upon conflicting testimony was properly submitted to the jury, . and their verdict is conclusive. '
    2. Pleading — discretion as to permitting amendment. — A request for leave to amend the complaint by changing or adding to the original cause of action is' addressed to the court’s sound discretion, and'the exercise thereof will not be disturbed unless’’a‘ii abuse thereof clearly appears.
    3. Pleading — refusal to permit amendment. — Where . the- complaint alleged a breach of an express warranty; refusal of a request, made after all the testimony was in, for leave .to .amend by alleging an implied w&rranty and breach thereof will not be disturbed.
    4. Sales — caveat emptor. — Where a dealer sold cotton seed to another dealer for resale, there was no implied warranty of quality or fitness, but the doctrine of caveat emptor applies.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      E. L. Matlock and D. H. Howell, for appellant.

      C. M. Wofford and Starbird & Starbird, for appellee.
   McCulloch, C. J.

This is an action instituted by appellant against appellees to recover damages sustained by reason of the breach of an alleged warranty in the sale of cottonseed. Each of the parties to the action is engaged in the business of handling and selling cottonseed, and appellees sold 201 bushels to appellant, who purchased the same for resale to customers. It is alleged in the complaint that appellees expressly warranted the seed to be of a certain brand and of a certain percentage of fertility. The answer of appellees contained a denial of the warranty, and denied that the seeds were infertile to any appreciable extent. There was a trial of the issues before a jury, which resulted in a verdict in favo. of appellees.

Appellant testified that appellees made an express warranty as to the quality and fertility of the- seed, but there was a conflict in the testimony, and the court correctly submitted that issue to the jury. The verdict is therefore conclusive on that issue.

When all of the testimony had been introduced, appellant asked leave of the court to amend his complaint so as to charge an implied warranty ' and the breach thereof. The court denied the request, and an exception was duly saved. Appellant also asked the court to give certain instructions submitting the issue of implied warranty and the breach thereof, but these requests were denied. The request for leave to amend the complaint by changing or adding to the cause of action'originally stated was one which was addressed to the sound discretion of the trial court, and on appeal the exercise of that discretion will not be disturbed unless an abuse thereof clearly appears. Rucker v. Martin, 94 Ark. 365, 120 S. W. 1062. We are of the opinion that the discretion vested in the court was not abused in this instance, at least it does not clearly so appear.- A litigant cannot, in the trial of a cause, wait until all the testimony is introduced and then ask, as a matter of right, for a change of the issues. His request is not granted purely as a matter of right,but it appeals to the discretion of the court. There is no reason shown why appellant could not have amended his complaint in the beginning as well as at the end of the trial. We think there was np abuse of discretion and that we ought not to disturb the ruling of the court in the exercise thereof. In addition that, we are of the opinion that the evidence fails to show a state of facts from which a warranty can be implied. Appellant was a dealer, and bought the seed for resale, not for his own use, and the rule established by decisions of this court in such cases is that the doctrine of caveat empfior applies in the sale of a commodity by one dealer to another and that there is no implied warranty of quality or fitness. Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 280; Drury v. Armour & Co., 140 Ark. 371, 216 S. W. 40. This rule was announced in cases involving the sale of commodities to be consumed as food, but the rule applies with equal force to planting seed and- other articles of merchandise. Therefore we hold, for both reasons, that there was no error in the court’s ruling, -and the judgment is therefore affirmed.