text:
    McDaniel v. Forrest Park Cemetery Company.
    Opinion delivered January 22, 1923.
    1. Nuisance — -cemetery.—A c-emetery is not a nuisance per se, and ordinarily courts of equity will not interfere but will leave the complainants to an action at law, unless it clearly appears that a nuisance will be brought into existence by the acts of the parties sought to be restrained.
    2. Nuisance — cemetery.—When it appears that a place of sepulture is so situated that the burial of the dead there will endanger life or health by corrupting either the surrounding atmosphere -or the water of wells or springs, the court will.grant its injunctive relief, upon the ground that the remedy at law is inadequate.
    3. ' Nuisance — cemetery.—Evidence held insufficient to enjoin the establishment of a cemetery.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Hughes & Hughes, for appellant.
    The case rests upon the proposition that the cemetery will necessarily be a nuisance to appellant. This court has defined a private nuisance as “anything that works a hardship or annoyance to the lands of another. ’ ’ 18 Ark. 252. -See also, 92 Ark. 538; 85 Ark. 552; 102 Ark. 290; 116 Ark. 386. Equity will enjoin the use of land as a cemetery where it appears with reasonable certainty that the burial of dead bodies there will injure life or health by corrupting the water of wells of adjoining landowners. 5 R. C. L. 236; 34 L. R. A. (N. S.) 565; 46 L. R. A. 237; 131 Iowa 169; 109 N. W. 203; 190 111. App. 455; 82 N. T. S. 973; 59 N. O. 83; 79 Am. Dec. 241; 159 111. 385.

      Mann & Mann, for appellee.
    1. A cemetery is not a nuisance per se. 5 R. C. L. 234, 235; 174 Pac. 961; 1 A. L. R. 541. See also 95 Ark. 545. To sustain his action there must have been clear proof on the part of the appellant of a strong probability that the use of the land as a cemetery will poison the wells on his property to such an extent as to endanger the health and lives of persons using water from them. Mere diminution in value of the property is not sufficient. 102 Ark. 290.
    2. Injunction will not be granted upon the mere ground of proximity of a cemetery and consequent depreciation in value of plaintiff’s property, or that its proximity would cause unpleasant reflections. Ill Pac. 392, 31 L. E. A. (N. S.) 945; 69 Neb. 300; 5 A. & E. Ann. Cas. 132.
    3. The chancellor’s findings will be sustained unless they are clearly contrary to the preponderance of the evidence. 87 Ark. 537; 101 Ark. 522; 105 Ark. 512. See also 72 Ark. 305; 75 Ark. 52; Id. 72; 90 Ark. 426; 96 Ark. 171; 143 Ark. 319.
   Smith, J.

This is a suit to enjoin the use of a certain tract of land as a cemetery. Appellant McDaniel owns two tracts of land just south of the city of Forrest City: One of them is the southeast quarter of section 4, the other the south half of the northeast quarter of section 9, township 4 north, range 3 east. The cemetery tract is the north half of the northeast quarter of section 9, township 4 north, range 3 east, lies between the two tracts above described. Practically all of the laud in all three tracts is in cultivation.

Appellant alleges that appellee is threatening to use the middle tract as a cemetery; that he has numerous wells of water on his land for drinking purposes, and that, oil account of the slope of the land and the porous character of the soil, the water will soak through the land from the graves to appellant.’s wells and poison them, and make the water injurious to health and life. The answer alleged the intention to use only ten acres' of the land for immediate cemetery purposes, and denied that the burial of dead bodies in the land would poison the wells of appellant and make the water injurious to health and life.

The case presented is an interesting one, and was tried with great care and skill, and scientists of national reputation were called as witnesses on both sides.

The law of the subject appears to be very well settled. The annotated cases of Nelson v. Stwedish, etc, Cemetery Assn., 111 Minn. 149, 126 N. W. 723, 127 N. W. 626, 34 L. R. A. (N. S.) 565; Lowe v. Prospect Hill Cemetery Assn., 58 Neb. 94, 78 N. W. 488, 46 L. R. A. 237, and Rea v. Tacoma Mausoleum Assn., 103 Wash. 429, 174 Pac. 961, 1 A. L. R. 541, cite the leading cases on the subject. See also cases cited in briefs of counsel, and authorities cited in the notes to the text in 5 C. J. 56 and 5 R. C. L. 236. The law of the case is summarized in 5 R. C. L. 235 as follows: “As public cemeteries for the orderly and decent sepulture of the dead are necessary requirements for all populous communities, private convenience must yield to the convenience of the public in fixing sites for tliem, and the courts should be particularly careful not to interfere to prevent such establishments, unless the mischief be undoubted and irreparable. The decided weight of authority may be said to 'be to the effect that a cemetery is not per se a nuisance, and .ordinarily in such cases courts of equity will not interfere, but will leave the complainants to an action at law, unless it clearly appears by competent evidence that a nuisance will be brought into existence by the acts of the parties sought to be restrained, and that the party complaining will be injured unless the injunction is granted. Whether a place of interment of the dead is a nuisance depends on the.position and extent of the grounds, and especially on the manner in which the burials are effected. If the grounds be arranged and drained, and the burial of the dead be conducted in a proper manner, it will not be a nuisance, either public or private. The unpleasant reflections suggested by having before one’s eyes constantly recurring memorials of death is not such a nuisance as will authorize the intervention of equity. It is well settled, however, that it is within the province of a court of equity to restrain the location or maintenance of a cemetery which will endanger the public health or operate as a nuisance. Accordingly, when it appears that a place of sepulture is so situated that the burial of the dead there will endanger life or health, by corrupting either the surrounding atmosphere or the water of wells or springs, the court will grant its injunctive relief, upon the ground that the act will be a nuisance of a kind likely to produce irreparable mischief, and one which cannot be adequately redressed by an action at law.”

The parties agree that this is a correct statement of the law as declared in the adjudicated cases, and it becomes therefore a question of fact whether the landowner has made a case entitling him to enjoin the establishment of the proposed cemetery.

On behalf of the cemetery association it is insisted, first, that the soil of the cemetery tract to a depth of twelve to fifteen feet is practically impervious to the passage of water; second, that the slope of the ground is such that no water from the cemetery will reach the wells on plaintiff’s property; 'third, that if the water from the cemetery should reach the wells it would be so purified that it would not be dangerous to health for one to drink from the wells.

Thé testimony is in hopeless conflict as to the porosity of the soil. Dr. Tucker, who is professor of geology at the University of Indiana and a specialist in hydrology, spent three and one-half days making tests of the soil. He made tests of the soil both on the ground and in his laboratory, and he testified that to a depth of ten to fifteen feet the soil was as impervious to water as any he had ever examined, and he expressed the opinion that there was no underground drainage at that depth, and that there was absolutely no danger of contamination to wells situated on adjoining property. He further testified that, after an examination and study of the soil, as well as a study of the books and pamphlets of other geologists covering the soil of that section, he had concluded that the soil covering the cemetery tract was “hill drift,” that is, a soil which had drifted down from Crowley’s Ridge, and in its transportation thereto' the soil liad been exposed to weathering processes which had produced a clay practically impervious to water. He testified that trees and growing crops gather moisture in such soil by capillary attraction, which is a microscopic movement in a horizontal direction, and this movement has nothing to do with the movement of underground waters. This witness devoted more time to the examination of the soil than did any other expert witness who testified on that subject.

Dr. Glenn, professor of geology at Vanderbilt University, and Dr. Drake, professor of that science at the University of Arkansas, testified in behalf of the plaintiff ; and the same wide difference of opinion on' the part of the experts was found here as exists in all other cases where witnesses are called to testify as experts. It was the opinion of Dr. Glenn and Dr. Drake that there was a movement of subsurface waters from the cemetery traer towards the lands of plaintiff which would contaminate his wells if dead bodies were buried in the cemetery tract; and it was their opinion that the use of steel coffins, hermetically sealed, would only delay this injury, as in the course of time steel coffins would be eaten through with rust and the entire contents set free. It was their opinion that bacteria live and travel in subsurface waters, and that plaintiff’s wells would be poisoned thereby if the land in question was devoted to use as a cemetery.

The plaintiff himself, two neighboring farmers,, a grave digger, and a tenant who had put water in test water-holes, gave testimony tending to show that there was in fact a subsurface movement of water in harmony with the slope of the surface, and that the underground water probably moved at the rate of from five to fifteen feet per day.

M. Z. Bair, who is the chief sanitary engineer of the Arkansas State Board of Health, made an examination of the proposed cemetery, and testified that the character of the soil was such that it was impervious to water, and that it would be impossible to detect any contamination of the water in wells on plaintiff’s land by accepted methods of analysis, by reason of the burial of the dead in the cemetery tract.

Two non-expert witnesses gave testimony as to certain facts within their observation confirmatory of the opinions of the experts who testified in behalf of the defendant. The conflict in the testimony of the experts as to the imperviousness of the soil is such that we should be left in much doubt about othe merit of the cause if the decision had to be made without the consideration of any other testimony.

Mr. Herring, a drainage engineer, made a survey of the lands in question, and exhibited with his testimony topographical maps which he had made showing the surface drainage of the cemetery tract. He testified that the drainage of the east forty acres of the cemetery tract is directly west, and that water thus drained would escape plaintiff’s lands, which lie north and south of the eemeiery tract; and that the drainage of the west forty acres of the cemetery tract is southwest, and g*oes into a ditch which flows off across the corner of the plaintiff’s eighty-acre tract. This witness testified in regard to the wells on plaintiff’s lands, which had been respectively numbered, and stated that his survey showed none of these wells would be affected by drainage from the cemetery. Dr. Tucker and Mr. Bair were examined in regard to the survey made by Herring, and each stated that the subsurface water could not reach any of the plaintiff’s wells.

The witnesses all agree that the subsurface drainage, where it exists, is in harmony with the surface drainage. A study of the maps made by Herring, as explained by liim, greatly weakens the plaintiff’s case.

In addition to the testimony of other experts, Dr. Manglesdorf. the State bacteriologist, testified, and he did so after having made observations and experiments with certain test holes which he had excavated on the ten acres which it is proposed to immediately use for cemetery purposes, as well as certain test wells on the remainder of the land. He was the only bacteriologist who testified, and as a result of his observation and experiments he expressed the opinion that, in view of the distance of the wells from the proposed cemetery and the character of the soil any water which might flow through the ground to the wells would be filtered, and all bacteria and other poisons removed, and that there would be no contamination to the wells.

, The chancellor dismissed the bill as being without equity, and in our opinion this decree must be affirmed, as the testimony does not -show that probable injury which must be shown to entitle one to have the location of a cemetery in his proximity enjoined.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Cauley v. State.
    Opinion delivered January 22, 1923.
    1. ' Criminal law — conclusiveness op verdict. — The jury’s verdict on conflicting evidence, is conclusive.
    2. Rape — sufficiency of evidence. — In a prosecution for rape, evidence held sufficient to sustain the conviction.
    3. Criminal law — argument of prosecuting attorney. — In a prosecution of a negro for rape on a negress, the prosecuting attorney’s argument that defendant should be convicted, if guilty, in order to protect the white women of the State from such assaults, was not prejudicial, being a mere expression of his opinion as to the consequence of a failure to enforce the law.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Emmet Vaughan, for appellant.
    J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was convicted of rape and given a life sentence in the penitentiary, and has assigned two errors for the reversal of that judgment. The first is that the testimony did not warrant the verdict; the second that the conviction resulted from the inflammatory and improper argument of the prosecuting attorney.

As to the first assignment of error, it may be said that Sallie Burton testified as follows: Witness is a colored woman, nineteen years old, married, and the mother of two children, one a year old, the other three. She lived with her brother, but on the day she was assaulted she was at home alone with her two children, when appellant came to her house and made her a proposition to have sexual intercourse. She refused; he persisted, and said he would take it anyway. She threatened him with arrest, and started to run., when he caught her, dragged her into the house, threw her down on the floor and accomplished his purpose. She did not cry out, because he told her he would kill her if she did. When he had done, he jumped up and ran around the rear of the house, down to the bay, where he leaped into a boat and crossed over. As.soon as witness was released, she secured a gun which was in the house and pursued appellant, but he escaped. The following day she had him arrested.

Appellant admitted the act of intercourse, but testified that he promised Sallie a dollar, and she consented ; that he did not pay her because he did not have the money at that time, and she became angry and abusive and threatened to kill him, and when she attempted to execute the threat by getting the gun he ran away, and she pursued, but he soon outdistanced her.

The verdict of the jury is, of course, conclusive of this conflict in the testimony; and the testimony of the woman is sufficient to support the conviction.

On. the exception to the alleged erroneous argument of the prosecuting attorney the record contains the following recital:

“Because the court erred in overruling defendant’s objection to the argument of the prosecuting attorney in his argument to the jury ‘that, if guilty, the defendant should be convicted in order to protect the white women of the State from such assaults, and that if he was turned loose our wives and sisters and daughters would be in danger of such assaults by the defendant’, to which statement in the argument the defendant at the time excepted and asked the court to admonish the jury not to consider that part of the argument; and because the court permitted the prosecuting attorney to continue the argument of the case in the same prejudicial strain throughout, and, the court having refused the request of the defendant and permitted the prosecuting attorney to so continue his argument, the defendant saved his proper exceptions and asked that his exceptions be noted of record, which was accordingly done.”

It is insisted that this statement was an 'appeal to race prejudice, and that the judgment should be reversed on that account. But the majority of the court do not think so. In their opinion it was a perfervid appeal to the jury to convict the defendant if he was found guilty, but that no appeal was made to the jury to convict the defendant unless he was found guilty, and the plea to convict him if found guilty was not improper. There was no statement to the jury of any fact not in evidence, and the argument amounted to no more than the expression of the opinion that if convictions of colored men were not returned by juries when assaults were committed upon females of the colored race, those assailants would be encouraged to make victims of females of the white race, and the argument was therefore the mere expression of opinion as to the consequence of a failure to enforce the law, and resulted in no prejudice to the defendant. Poe v. State, 95 Ark. 172; Cravens v. State, 95 Ark. 321; Blackshare v. State, 94 Ark. 548.

In the opinion of Justice Wood and the writer the argument was an appeal to race prejudice, and the judgment should therefore be reversed.

It being the opinion of the majority that no error was committed, the judgment is affirmed.


author: Humphreys, J.

text:
    Bryant v. State.
    Opinion delivered January 22, 1923.
    1. Intoxicating liquors — participating as intermediary in sale. —In a prosecution for selling intoxicating liquor, where defendant told the purchaser that he had found a person from whom he could procure whiskey and was given money by the purchaser with which to buy it, and did so, defendant became a necessary factor and participant in the sale on account of being an intermediary between seller and purchaser without disclosing the seller’s name to the purchaser.
    2. Criminal law — instruction on credibility, op witness. — In a criminal prosecution where there was a conflict between the testimony of defendant and of the prosecuting witnesses, an instruction on the credibility of witnesses was justified.

      3. Criminal law — instruction on credibility op witnesses.— An instruction that the jury are the sole judges of the credibility of witnesses and thát if any witnesses have sworn falsely to material facts they may disbelieve their whole testimony if believed to be false, or believe that part which they think true and disbelieve that part which they regard to be false held correct.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge;
    affirmed.

      James Davidson and Holland é Holland, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted at the October, 1922, term of the Sebastian Circuit Court, Fort Smith District, for selling intoxicating liquor, and, as punishment therefor, sentenced to serve a term of one year in the State Penitentiary. From the judgment of conviction appeal has been duly prosecuted to this court.

Appellant’s first insistence for reversal is that the undisputed testimony disclosed that he acted as agent of the purchaser, and not as agent of the vendor of the whiskey. This court, in the case of Wilson v. State, 124 Ark. 477, ruled that one was not guilty of selling or being interested in the sale of intoxicating liquor, who acted solely as agent for the purchaser. We cannot? agree that the undisputed testimony in the instant case brings appellant within the rule announced in Wilson v. State, supra. It is true, appellant testified that he was requested and directed by Sam Moore to go and purchase one quart of whiskey from Will Lewis, who kept a boarding house at 523 Belle Avenue in the city of Fort Smith, for him, and that he gave him six dollars with which to purchase same; that, in obedience to his request, he purchased the whiskey from Will Lewis and delivered it to Moore at an appointed place; that he received nothing out of the transaction, but, on the contrary, paid the entire amount to Lewis for the whiskey; that he delivered the package to Moore in exactly the condition he received it. Sam Moore, however, testified that he inquired of appellant if he knew where he could purchase some liquor; that appellant told him he did not; that appellant left his car with him to be repaired, and returned in a short time, stating that he had found a “guy” from whom he could purchase some whiskey, whereupon he asked him what it would cost; that appellant replied, six dollars a quart; that he gave appellant six dollars with which to buy a quart, and requested that he meet him at. the city scales with it; that a short time thereafter they met at the city scales, and appellant handed him the whiskey. Under the rule announced in the case of Bobo v. State. 105 Ark. 462, and approved in the case of Williams v. State, 129 Ark. 344, the testimony of Moore made appellant a necessary factor and participant in the sale of the liquor, on account of becoming an intermediary between the seller and the purchaser without disclosing the name of the seller to the purchaser.

Appellant’s next insistence for reversal is, that the court erred in giving instructions numbers 1-B and 1-C. Substantially the same instructions were given in the similar cases of Williams v. State, supra, and Dean v. State, 130 Ark. 326, which were approved by this court. •The instructions correctly declared the law applicable to the case.

Appellant’s next insistence for reversal is that the court erred in giving the following instruction:

“You are the sole judges of the credibility of the witnesses and the weight that should be given their testimony. It is your duty to reconcile the statements of these different witnesses so as to believe as much of this testimony ns you can, but, if you cannot do so, on account of contradictions, then you have the right to believe the witnesses whom you think most worthy of credit, and disbelieve the witnesses whom you believe, from the evidence, to be least worthy of credit. And if you find any witnesses have sworn falsely to any material facts in this case, you may disbelieve their whole testimony, if you believe it to be false, or believe that part which you think to be true, and disbelieve that part which you regard to be false. And, in weighing a witness’ testimony, you may take into consideration his candor or lack of candor, his knowledge about the things he testifies, the reasonableness or unreasonableness of his testimony, and his interest, if any be shown, in the result of your verdict.”

It is said no witness was impeached, and for that reason the instruction was abstract. It was not abstract. The conflict in the testimony of appellant and the prosecuting witness, as well as other conflicts appearing in the testimony, justified the instruction.

It is also said that the instruction authorized the jury to disregard the entire testimony of a witness, whether it believed the testimony false or not, if it believed the witness testified falsely to any material facts. The instruction is not open to that criticism. "When correctly construed, the instruction means that the jury was empowered to disregard the entire testimony of a witness if it believed the entire testimony false.

Appellant’s next and last insistence is that the court instructed the jury after the case had been argued. It is unnecessary to discuss or determine this alleged error, as the record reflects that the instructions were given before the arguments were made.

No error appearing’, the judgment is affirmed.


text:
    Missouri Pacific Railroad Company v. Prude.
    Opinion delivered January 22, 1923.
    1. Carriers — liability in selling ticket over connecting koad.— A railroad company, selling a passenger a ticket for through transportation to destination over its own and connecting roads, ■ enters into a contract rendering itself responsible for the entire journey. •
    2. Carriers — limitation of liability. — A passenger, who has no knowledge of a condition printed on her ticket, which she did not sign, limiting the railroad’s liability for safe carriage to its own lines, is not precluded from recovering for an assault and battery committed by the auditor of a connecting road.
    3. Carriers — assault on passenger — damages.—In an aetion for breach of a contract for the safe carriage of a passenger, compensatory damages only can be recovered for an assault and battery on a passenger.
    Appeal from St. Francis Circuit Court; R. J. Williams, special judge;
    reversed in part.

      Thos. B. Pryor and Daggett & Daggett, for appellant.
    The sale by a carrier of a coupon ticket for through transportation over its own and connecting lines, in the absence of a specific contract, does not render the- initial carrier liable for injury sustained by a passenger on connecting lines. 10 C. J. 818; 6 Cyc. 571; 5 R. C. L. Carriers, § 779. The selling carrier may lawfully contract with the passenger limiting liability to its own line. 136 S. W. 793; 20 Ann. Cas. 311; 88 S'. W. 35; 112 111. 295; 114 Mass. 48. In the absence of statute or special contract, each connecting carrier is bound only to carry safely and be liable for injury, over its own line. 42 Sup.'Ct. Rep. 332.

      8. 8. Hargraves and Mann é Mam, for appellee.
    In the absence of an express contract, the initial carrier who sells a passenger a through ticket and checks his baggage to its destination is liable for the loss- of such baggage by a connecting carrier. 74 Ark. 9; 74 Ark. 125. The same rule should apply to the passenger. 10 C. J. 818; 5 R. C. L. “Carriers,” ^'779.
   Humphreys, J.

Appellee instituted this suit against appellant in the St. Francis Circuit Court to recover $2,400 compensatory, and $500 punitive, damages, on account of an assault and battery committed upon her by the auditor of the International & Great Northern Railroad Company, a connecting line of appellee in the transportation of passengers. It was alleged that on the 24th day of October, 1920, appellee purchased a ticket from appellant good for passage from Forrest City, Ark., to Houston,' Texas, and return; that, before retiring on the night of said date, she delivered the ticket to the auditor, who receipted her for it; that on the next day she gave the receipt to the auditor, expecting him to return her ticket, which he failed to do; that when near Houston she attempted to procure the return portion of her ticket, and was assaulted by the auditor; that by reason of the assault and battery she suffered both physical pain and mental anguish.

Appellant filed an answer admitting the purchase of the ticket, but denying the assault and battery and any pain and 'anguish resulting therefrom.

By way of further defense, appellant alleged that the ticket covered its own and two independent connecting lines; that the ticket was good for transportation over its own line from Forrest City, via Wynne, Arkansas, to Texarkana, Arkansas; over the Texas Pacific Railroad Company from Texarkana, Arkansas, to Long-view, Texas; and over the International & Great Northern Company from Longview to Houston, Texas; that each of the three lines or companies are independent corporations; that the ticket contained the following agreement:

“In selling this ticket and 'checking baggage hereon, the selling carrier acts only as agent, and is not responsible beyond its own lines”; that if any assault and battery was committed upon appellee it was committed by the auditor of the International & Great Northern Railroad Company, for the acts of whom appellant was not liable.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment against appellant for $1,600 compensatory, and $500 punitive, damages, from which is this appeal.

The facts are undisputed, and, briefly stated, are as follows: Appellant, the initial carrier, sold appellee a round trip ticket from Forrest City, Arkansas, to Houston, Texas, at a reduced rate, to the Confederate Reunion. The ticket covered three independent lines of railroad, and contained six coupons, three for the going trip, and three for the. return trip. A paster contract was attached to the ticket which contained the following stipulation: “In selling this ticket and checking baggage hereon, the selling carrier acts only as agent, and is not responsible beyond its own lines.” The ticket was purchased over the telephone. . When appellee reached the depot she paid for the ticket, which was handed to her in an envelope. She did not sign nor inspect the ticket. She proceeded to Wynne, where she took the Sunshine Special and continued her journey. Upon retiring for the night the auditor issued her a receipt and took her ticket. The next day the auditor took up the receipt, assuring her that her ticket was all right. Just before reaching Houston, appellee asked the auditor for her ticket, and was informed that he had given it to her and that she must have lost it. She denied that he had given it to her. He looked through his papers, and said he did not have the ticket and could do nothing about it. After further controversy she picked up some of the auditor’s papers and told him she would keep them until he returned her ticket, The auditor demanded his papers, and, upon her refusal to return them, called her a robber, caught her left arm' twice very firmly, and shook her, then stepped back and put his hand in his hip pocket as if to draw a pistol, He then left and said he would get an officer. As a result, appellee became indignant, felt outraged, and went to pieces. She was unnerved, and still suffers from the effects of the assault.

The cause was sent to the jury upon the theory that the assault and battery constituted a breach of contract on the part of the initial carrier for the safe transportation of the appellee from Forrest City, Arkansas, to Houston, Texas, and return.

Appellant contends that the court erred in thus declaring the law. The instruction given by the trial court followed the English doctrine as announced in the text of Ruling Case Law, vol. 5, in the first two sentences of section 779, which is as follows: “The English courts seem to regard the sale of a passenger ticket by a railroad company over its owm and connecting roads as evidence of a contract for through transportation to the point of destination, and hold that the company making the sale enters into a contract which renders itself responsible for the entire journey. In the United States the decisions on this point are not entirely in harmony, some of them favoring the English rule, and holding that the initial carrier is responsible for the wrongful acts and omissions of the connecting carriers, in the absence of a valid agreement between the initial carrier and the passenger limiting the liability of the latter to its own line.”

Several of the States have adopted the English rule because of the reasoning in support thereof, but the great majority of the American courts hold to a contrary rule, as announced in the same section of R. C. L., which, is to the effect that “the mere issuance and sale by a railroad company of the ordinary coupon ticket, good: over its own and connecting lines, does not import an undertaking on the part of such initial carrier to become responsible for the safe carriage of a passenger beyond its own line. The first carrier in such a case is regarded as the ag*ent of the succeeding carriers, and the coupons are considered as separate tickets, binding the successive carriers in practically the same manner as thoua’h issued and sold (by themselves.”

This court deliberately adopted the English doctrine as being the sounder in reason and applied it to a shipment of baggage. K. C., Ft. Scott & Memphis Rd. Co. v. Washington, 74 Ark. 9; L. R. & H. S. West. Ry Co. v. Record, 74 Ark. 125. We cannot agree with the suggestion of appellant that the intention of the court was to adopt the rule in part only.. The rule relates to the sale of tickets for carrying passengers, and the checking of baggage is a mere incident to travel. In applying the rule to the carriage of bag-gage the purpose was to adopt the rule in its entirety.

Appellant contends, however, that its liability was limited for the safe carriage of appellee over its own line only, by an express provision in the contract to that effect. According to the rule announced in the ease of Little Rock & Hot Springs Western Railway Co. v. Record, supra, a passenger is not 'bound by conditions printed on the ticket limiting the liability of the carrier, of which he was not cognizant. Appellee did not sign the ticket, and the testimony tends to show she had no knowledge of the liability limitation in the ticket.

Lastly, appellant contends that the court erred in refusing to instruct the jury a,gainst the return of a verdict for punitive damages. The suit was based upon the violation of the contract for the safe transportation of appellee. Compensatory damages only can be recovered for a breach of contract. It was error to allow punitive damages in any sum. The jury returned separate verdicts for compensatory and punitive damages. The separate verdict of $500 for punitive damages will therefore be reversed and disallowed. The judgment in other respects will be affirmed.


text:
    White-Wilson-Drew Company v. Ahrens.
    Opinion delivered January 22, 1923.
    1. Execution — liability op sureties on stay bond. — Though the sureties on a stay bond become principals as to the creditor, so that the creditor may issue execution against them alone, yet if he, after having levied execution upon the property of the principal, release such property over the objection of the sureties, he thereby releases-such sureties to the extent of the value of the property so released.
    2. Statutes — adopted construction. — When one State adopts a statute of another State, the previous construction of such statute goes -with it.
    Appeal from Arkansas Chancery Court, Soutlierp District; John M. Elliott, Chancellor;
    affirmed.

      Young & Elms, for appellants.
    At the expiration of the stay, the bond, per force of the statute, became a judgment against the sureties. C. & M. Digest, § 4306. The liability of the principal and the sureties in the bond thereupon became a joint and equal liability, so far as the judgment creditor was concerned. 94 Ark. 453.

      John W. Moncrief, for appellees.
    Appellant’s theory of the case and his contention is refuted by the opinion in Wilson v. White, 82 Ark. 407. See also, 7 Heisk. (Tenn.) 50; 69 Tenn. 488; 27 Am. & Eng. Enc. of Law, 2d ed., 520-521; 32 Cyc. 218-220; Brandt on Suretyship & Guaranty, 3d ed., § 495; Id. § 480; 21 R. C. L.' 1042-3; 94 N. W. 853, 855;.17 Am. Dec. 590; 48 S..W. 724; 126 S. W. 547, 550; 20 Am. Dee. 179; Freeman, Executions, 259, 269; 79 Inch 578; 70 S. W. 842, 843; 38 S. W. 1141, 1142; 59 Ark. 47; 9 B. Mon. 325.
   Smith, J.

Appellees Avere plaintiffs below, and their complaint contained the following allegations. Certain creditors of T. TT. Bowers reeoA^ered judgments against him, amounting to $400 in the common pleas court of the Southern District of Arkansas County.- Executions were issued and placed in the hands of the sheriff. Thereupon BoAvers executed stay bonds upon the respective judgments, with the plaintiffs as sureties. These bonds were accepted and approved by the sheriff, and were duly returned with the executions. Upon the expiration of the bonds, executions were issued against Bowers and these plaintiffs as bondsmen. At that time Bowers owned a stock of-merchandise worth twenty-five hundred dollars and other personal property, on which there were no prior liens. The executions were levied on this property, and the sheriff was about.to advertise the same for sale, when the judgment creditors directed the sheriff to hold up the executions and to release the property of Bowers, and this was done. Plaintiffs protested against the. release of the property, and requested the sheriff to proceed with the sale, but the sheriff did not proceed with the sale because the judgment creditors directed him not to do so. Thereafter Bowers disposed of his property and became, and is, insolvent, and the judgment creditors have now caused executions to be levied upon the property of the plaintiffs. There was a prayer that the judgment creditors and the sheriff, who were the defendants, be restrained from proceeding under the executions with the sale of the property belonging to the plaintiffs.

A demurrer to the complaint w;as filed, and overruled. In overruling the demurrer to the complaint, the court prepared a written opinion expressing the view that the action of the judgment creditors in ordering the sheriff to return the executions unsatisfied, over the protest of the plaintiffs, and the subsequent insolvency of Bowers, had the effect of releasing plaintiffs as sureties on the bonds. The defendants stood on their demurrer, and the temporary restraining order was made perpetual, and this appeal is from that decree.

For the reversal of the decree of the court below it is insisted that the plaintiffs were not mere sureties, and that under the statute they have become primarily liable, and can be released only by the payment of the judgments. Section 4306, C. & M. Digest, provides what the effect of a bond' snch as the plaintiffs executed shall be. That section reads as follows: “All such bonds shall have the force and effect of a judgment, and on which an execution may issue, which execution shall be indorsed that no surety of any kind is to be taken.”

The bond itself has the force and effect of a judgment, on which an execution may issue, and that without the benefit of further stay, and an execution issued thereon must be so indorsed. The purpose of this provision is that there may be an end of the matter and the judgment creditor may finally have his money.

By signing this bond the sureties thereon made themselves parties to the record, and they were thereafter primarily liable for the debt stayed. By executing this bond the sureties stayed the proceedings for the time limited by the bond against the judgment debtor, and in doing so they became liable primarily, so far as the judgment creditor is concerned, for the payment of the debt at the expiration of the stay. These sureties might, if they had elected so to do, have paid the debt and have taken an assignment of the judgment stayed to themselves, after which they would have been entitled, under section 6250, C. & M. Digest, to have had summary judgment against Bowers. Yet it is true that, while the relation of principal and surety exists between the plaintiffs and Bowers, the plaintiffs are all principals so far as the judgment creditors are concerned.

We were first of opinion that the case of Walker v. Files, 94 Ark. 453, was controlling here and called for the reversal of the decree of the court below. That case expressly decided that one who signed a delivery bond in replevin became a party to the suit, and that judgment might be rendered against him upon the decision of the case, and that when such a judgment had been obtained the judgment creditor might cause the property of either the principal or the surety to be levied upon and sold under an execution to obtain satisfaction of the judgment; this being upon the theory that both principal and surety liad become primarily liable upon the rendition of the judgment.

There is a circumstance, however, which distinguishes that case from this, and which is controlling here. This is the fact that an actual levy had been made on sufficient property belonging to the principal to satisfy the judgment debt, and that levy was released without the consent of the sureties. The judgment creditor may, at his election, have a levy made on the property of him who at first was a mere surety, and he may do this although he could as well have had satisfaction out of the property of the principal. The case of Walker v. Files, supra, so expressly holds. But if the judgment creditor cause a levy to be made upon the property of the principal, he may not release this levy without the surety’s consent, except under penalty of releasing the surety to the extent of the value of the property so released.

In 21R. C. L. p. 1041, the law is thus stated: ‘ ‘ Therefore when property of the principal debtor has been levied on, and the levy subsequently relinquished by the judgment creditor, he cannot enforce the collection of the entire judgment against the sureties, but they will be disci) arged to an extent equal to the value of the property so surrendered or relinquished. Once the property of the principal is in the hands of the sheriff, the sureties have a right to the benefit of it. ”

The authorities to which our attention has been called appear to be unanimous in so holding; but the case of ’ Alexander v. Bank of the Commomwealth, 7 J. J. Marshall (Ky.) 580, comes with especial force in the construction of the statute under consideration, which is a part of the Civil Code borrowed from the State of Kentucky.

In the case of State v. Ark. Brick & Mfg. Co., 98 Ark. 125, tins court said: .“The case last cited “comes with especial force, as it arose in Kentucky after her adoption of a Code which was subsequently adopted by Arkansas. When one 'State adopts the laws of another State,- it is quite generally held that constructions of the adopted law go along with it. Without such aid, however, in this case, we would hold the law to be as here expressed.”

The Kentucky case of Alexander v. Bank, supra, was decided October 18, 1832, which was, of course, long prior to the adoption of our Code, and the syllabus of that case is as follows: “If, after a fieri facias issued on a replevin bond has been levied on estate of the principal obligor, sufficient for its satisfaction, it be stayed by order of plaintiff, and the property released, the surety in the replevin bond is thereby released, in equity, from the obligation of the replevin bond.”

In the late case of Darland v. First Nat. Bank, 197 S. W. 826, the Court of Appeals of Kentucky reaffirmed the doctrine of Alexander v. Bank, supra, and held also that the release of the property of the principal without the consent of the surety discharges the surety, whether the property released from the execution levy is sufficient to discharge the whole debt or not.

We do not feel bound by this last decision, and are not required, under the issues joined, to decide whether the surety is relieved beyond the value of the property released from the execution. But we do hold that the sureties are released to the extent of this value, and as the complaint alleged the value of the property released exceeded the judgment debt, the demurrer was properly overruled, and the decree to that effect is affirmed. See ''cases cited in note to 21 R. C. L. 1041 and 23 C. J. 821.


author: McCulloch, C. J.

text:
    Freeman v. State.
    Opinion delivered January 29, 1923.
    1. Larceny — description of property. — It is essential in an indictment for larceny to identify the property alleged to have been stolen -by apt words of description, but the description may be in general terms if sufficient to apprise thé accused of the property he is alleged to have taken.

      2. Larceny — description of property. — In an indictment for larceny, it was sufficient to describe-the property stolen as “500 pounds of' cotton,” without specifying whether it was seed or baled cotton.
    3. Criminal law — motion for continuance properly overruled when. — A motion for continuance for absent witnesses was properly overruled where there was no showing of diligence to secure their attendance, and no proof that they are within the court’s jurisdiction so that their attendance could be obtained at a later date.
    4. Larceny — sufficiency of evidence. — In a prosecution for the larceny of cotton evidence held sufficient to sustain conviction.
    5. Criminal law — instruction as to possession of stolen property. — In a prosecution for larceny, an instruction that the jury might consider the fact of the possession of recently stolen property in determining whether or not the evidence was sufficient to establish the guilt of defendant beyond a reasonable doubt was not erroneous as being on the weight of the evidence.
    6. Criminal law — reading statute to jury. — It was not error for the court to read to the jury, in response to á question by one of the jurors as to whether or not accused could be sent to the reform school, the section providing for sending felons convicted while under the age of 18 years to the reform school.
    Appeal from Sebastian Circuit Court, Fort Smitlt District; John Brissolara, Judge;
    affirmed.

      J. E. London and John London, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwm and W. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was tried and convicted under an indictment charging the offense of grand larceny by stealing, taking and carrying away “five hundred pounds of cotton of the value of $100, the property of H. A. Meadows.”

There was a demurrer to the indictment on the ground that the property alleged to have been stolen was not sufficiently described, in that it was not stated whether the property was seed cotton or lint cotton.

Counsel for appellant rely mainly on the decision of this court in Houston v. State, 66 Ark. 120, where it was held that under an indictment charging the theft of seed-cotton it constituted a variance to prove the theft of lint cotton. The court did not hold that it was necessary to specify the particular' kind of cotton, nor are we aware of any decision of this court which holds to that degree of particularity in an indictment for larceny. It is essential in an indictment for larceny to identify the property alleged to have been stolen by apt words of description, but the description may be in general terms if sufficient to apprise the accused of the property he is alleged to have taken. State v. Gooch, 60 Ark. 218; State v. Haller, 119 Ark. 503.

Our statute provides that an indictment must contain a statement of the acts constituting the offense “in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.” Crawford & Moses’ Digest, § 3028. And it is also provided that an indictment is sufficient if the “act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case.” Crawford & Moses’ Digest, § 3013.

The use of the word “cotton” constitutes a general description of the property indicated, in whatever state it exists, after it is gathered and before it is manufactured into some article of merchandise, whether the seed have been removed at the gin or whether it is still in the seed. • The trial court was correct therefore in overruling the demurrer.

It is next insisted that the court erred in refusing to grant a continuance on appellant’s application. The basis of this assignment of error is that the court overruled the motion because it was in conflict with a rule of the court requiring motions for continuance to be filed a day in advance of the trial, but it is shown by the recitals in the bill of exceptions that this was not the ground of the court’s ruling, and that, on the contrary, the court permitted the motion to be filed and considered it, but overruled it on the ground of it's insufficiency. The names of the witnesses were set forth in the motion, $nd the substance of the testimony which it is claimed they would have given, hut there is no showing in the motion as to where the witnesses were or that their attendance could have been procured at a later date or term of the court. There was a general allegation in the motion that the attendance of the witnesses could be procured and that subpoenas had been issued for them, but there was not a definite statement of facts to show where the witnesses were, nor when the subpoenas were issued. The court was justified therefore in overruling the motion on the ground that there had been no definite showing- of diligence, or that the witnesses were in the jurisdiction of the court and that their attendance could be obtained at a later date. Hayes v. State, 142 Ark. 587.

The next assignment of error relates to the alleged insufficiency of the evidence in failing to show that the defendant stole any cotton or to identify the cotton taken as that of Meadows.

The testimony adduced by the State tended to show that seed-cotton, the property of Meadows, was stolen from a wagon standing in the latter’s field before daylight on the morning of September 23, 1922, and the circumstances tended to show that appellant was the person, or one of the persons, who committed the theft. -

Meadows testified that he left his wagon, loaded with cotton, in the field on the night in question, and that on the next morning the cotton had been removed from the wagon. He traced the route taken by the thief from the wagon to the public road, a few hundred yards distant, through the field,- by footprints, also by cotton dropped on the ground. There were indications of a motor truck having stood in the road at the place to which the cotton was taken. 'Witnesses testified that they could see where the hind wheels of a truck stood, and also the footprints of persons in front where the engine was cranked up on restarting. About seven o’clock that morning appellant carried a load of seed-cotton in a truck to a gin in the locality, and sold it, and received a check in a fictitious name, that of “Bill Smith.” The person in charge of the gin testified that he identified the defendant as being the man who sold him the cotton, and that he was directed to make out the check in the name of “Bill Smith.” He testified that appellant appeared to be tired and sleepy, and stated to him at the time that he had gotten up very early that morning, and was cold. The ginner stopped the payment of the check at the bank before it could be collected, and when appellant appeared at the bank, to collect the check, payment was refused, and he was immediately arrested.

Appellant made contradictory statements to the officers about the check, first stating that he had left it at the bank, and later stating that he had torn it up, but the check was afterwards found in his possession, and it was exhibited at the trial and shown to have been drawn payable to “Bill Smith.”

There were peculiar marks about the shoes which made the tracks between the wagon and the public road, and appellant’s shoes were fitted into the tracks and found to bear the same peculiar marks.

The ginner observed that the windshield on the truck driven by appellant, when he brought the cotton to the gin, was broken on the left side, and it was shown that there was the same defect in a truck at the home where appellant lived.

All these circumstances were sufficient to show that appellant stole the cotton which he sold to the ginner, and that it was the property of Meadows. The trail of the cotton and the tracks of the thief were followed from the field to the truck, and the truck was then followed by the tracks thence to the gin where the cotton was sold by appellant.

Conceding, as contended by appellant, that there was a discrepancy between the different statements of Meadows as to the quantity, of cotton in his wagon, this discrepancy related only to the weight of the testimony of the witness which has been accredited by the jury. The jury may have found from.the evidence that a larger quantity of cotton was stolen than that described in 'the indictment, and that other cotton- was stolen from another person at the same time, but the circumstances warrant the inference of the fact that appellant stole five hundred pounds of cotton from Meadows, as charged in the indictment.

It is contended that the court erred in charging the jury upon the weight of the evidence in its instruction in regard to the circumstance of possession of recently stolen property. This instruction was not on the weight of the evidence, but merely stated that the jury might consider the fact in determining whether or not the evidence was sufficient to establish the guilt of defendant beyond a reasonable doubt. Pearrow v. State, 146 Ark. 182.

The bill of exceptions contained a recital that, after the argument of counsel liad been concluded and immediately before the retirement of the jury to consider of their verdict, one of the jurors asked the court whether or not the defendant would be sent to the reform school, whereupon the court stated: “Gentlemen of the jury, since you ask that question, and without at this time saying what will be done with the defendant, it is proper for the court to read this section of the law. ’ ’ The court then read the section of the statute which'provides, in substance, for sending female felony convicts and felony convicts under the age of eighteen years to the reform school. It is insisted that the court erred in giving this instruction to the jury.

We have never held that it is error for a trial court to inform the jury of the substance of the statute referred to above, or to read the statute to the jury. On the contrary, the court held, in Pittman v. State, 84 Ark. 292, that it was not error to so inform the jury, unless it was done in a way to indicate the court’s views as to the guilt or innocence of the defendant. It was held in the case cited and in later decisions that it is error to give incorrect information to the jury as to the substance and effect of this statute. It will be observed from the recitals iu the bill-of exceptions in the present case that the court did not volunteer the information on this subject at all, but merely read the statute to the jury when so requested, and read it correctly. We think there was no error committed by the court in this respect.

Judgment affirmed.


text:
    Wood v. Davenport.
    Opinion delivered January 29, 1923.
    1. Landlord and tenant — unlawful detainer — verdict.—In unlawful detainer, where there was an issue as to whether the renting was for a term of one year or from month to month, the verdict on that issue is conclusive on appeal.
    2. Landlord and tenant — waiver of notice of termination of lease. — Notice of the termination of a lease may be waived by a tenant, and a disclaimer of the landlord’s title or the right of the landlord to terminate the lease is sufficient to operate as such waiver.
    3. Landlord and tenant — waiver of notice of termination of lease. — Where a tenant from month to month on sale of the premises asserted the right to hold for a year from the time of his contract and refused to move until the expiration of that term, there was a disclaimer of the landlord’s right to terminate the tenancy, and formal notice was not necessary.
    Appeal from Pulaski Circuit Court; Guy Fulk, Judge;
    affirmed.
    J. F. Wills, for appellant.
    Appellant’s prayer for peremptory instruction should have been granted. It was incumbent on appellee to demand the rent, and, as no other place was designated in the rental-contract, to demand it on the premises, before unlawful detainer would lie. Wood, Landlord & Tenant,. 1034, § 449; Jones, Landlord-& Tenant, § 503; Underhill, Landlord & Tenant, vol. 1, p. 528; 16 E. C. L. § 435; Id. § 648; Woodfall, Law of Landlord & Tenant, 20th ed., 493; Taylor, Landlord & Tenant, vol. 1, § 392; 65 111. 477.

      John D. Shackleford, for appellee.
    The jury found that appellant was a tenant from month to month, and that finding is supported by the evidence. The notice of July 5, 1921, had the legal effect of calling appellant’s attention to the fact that he was in arrears, that he had three days in which to pay- the rent, and tíiat, if not paid, proceedings would be instituted -for possession. 65 Ark. 521. Since he was a tenant from month to month, the three days’ statutory notice was sufficient to maintain the action.
   McCulloch, C. J.

This is an action for unlawful detainer, instituted in the circuit court of Pulaski County by appellee against appellant to recover possession of a lot and dwelling house in the city of North Little Rock. The property was originally owned by L. Morrison and wife, who rented it to appellant during the month of February, 1921. There is a conflict in the testimony as to the terms of the rental.

The Morrisons sold and conveyed the property to appellee on May 20, 1921, and immediately thereafter appellee, accompanied by Mr. Wright, the real estate agent who made the sale, called on appellant and informed him of appellee’s purchase, and also of appellee’s desire to obtain possession as soon as convenient, as he had purchased the place for a home. Appellant declined to remove from the premises, claiming that he had rented the place from Mrs. Morrison in February, 1921, for a term of one year, the rent to be payable monthly in advance.

On July 5, 1921, appellee caused notice to quit in the statutory form to be -served on appellant, and, upon refusal of appellant to yield possession pursuant to notice, this action was instituted.

The facts as hereinbefore cited- are undisputed. There was, as before stated, a conflict in the testimony as to the term of the lease by the Morrisons to appellant. Appellant testified that he rented the place from Mrs. Morrison for a term of one year. Mrs. Morrison testified that she rented the place to appellant by the month, and that there was no contract, either written or verbal, for a term of twelve months,

The court submitted the case to the jury upon the sole issue as to whether or not the renting by the Morrisons to appellant was for a term of one year, and told the jury that if the renting was for a year the verdict should be in appellant’s favor, but that if he did not hold under a lease for a year, as claimed, the verdict should be against him. Appellant requested other instructions, which the court refused.

We are of the opinion that the court was correct in its instruction, for there was no other disputed issue of fact to submit.

Appellant is, of course, concluded by the verdict of the jury upon that issue, and we must treat it as settled that appellant was holding under a lease from month to month, which was terminable by notice of thirty days, expiring coincident with the end of any monthly period. Reece v. Leslie, 105 Ark. 129.

The notice of the termination of a lease may be waived by'the tenant, and a disclaimer of the landlord’s title or the right of the landlord to terminate the lease is sufficient to operate .as such waiver. 1 Underhill on Landlord & Tenant, § 131.

According to the undisputed facts in this case, when appellant was informed of appellee’s purchase of the property from Morrison, he asserted the right to hold the property for the full term of one year from the time of his contract, and refused to move until the expiration of that term. This was necessarily a disclaimer of the landlord’s right to terminate the tenancy from, month to month, and formal notice was not necessary.

The statute (Crawford & Moses’ Digest, § 4838) requires the giving of a notice of three days as a prerequisite of an action of this kind. That notice was given more than a month after appellant expressed a refusal to permit a termination of the tenancy. The giving of the notice matured appellee’s right of action for recovery of possession, and, as before stated, there was no issue of fact to submit to the jury except the' single one whether or not appellant’s contract with the Morrisons gave him the right to occupy the premises for a definite term of one year. This issue having been settled by the verdict of the jury, the judgment of the court is correct, and must be affirmed. It is so ordered.


text:
    Winn v. Simpson.
    Opinion delivered January 29, 1923.
    1. Stipulations — agreed statement. — In an action to quiet title, where plaintiff claimed under a tax deed executed in 1877 and defendant under deed from the State Land Commissioner executed in 1920, and trial was had on an agreed statement of facts that the land was subject to taxation in 1876 and was sold for nonpayment of taxes in 1877, and that the purchaser at such sale and his privies, including the plaintiff, have ever since been in actual possession of -the land and paying taxes for same, a decree for plaintiff will be affirmed.
    2. Stipulations — presumption op title. — In a suit to quiet title the presumption in favor of defendant’s title arising from the recitals of his deed from the State Land Commissioner, executed in 1920, purporting to convey the land as internal improvement land, is overcome by a stipulation that the land was subject to taxation and was sold for taxes in 1877.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor •

    affirmed.

      X. O. Pindall and Oscar H. Winn, for appellant.
    Appellee must- recover upon the strength of his own title and not upon the weakness of his adversary’s title. 75 Ark. 146; 69 Ark. 357.

      Frank M. Betts, for appellee.
    Appellant, under his cross-complaint, must show a title superior to that of appellee. The only evidence of title he has shown is a deed from the State, and that is only prima facie title. Lawson, Presumptive Evidence rule, 14, p. 67; 96 Ark. 42; 135 Ark. 367. Such deed would only raise a presumption that the land was properly on the books of the land office. As against this evidence, appellee has title, based not only upon the records in the recorder’s office, but actual, uninterrupted possession and payment of taxes for more than forty years, which facts are admitted by appellant. Long continued payment of taxes creates a presumption that there was a legal liability bo pay the taxes, and this furnishes a strong circumstance from which a court may infer a grant from the State. 135 Ark. 232; 114 Ark. 62; 120 U. S. 534. Appellee being in possession under prima facie title, appellant must show more than that, i. e., the real title. 96 Ark. 42; 135 Ark; 367.
    The State, having created its bureau of taxes, is bound to see that its officers impart correct inioranation to parties dealing with it and do not mislead them. 1.40 U. S. 646.
   McCulloch, C. J.

The subject-matter of this litigation is a tract of land in Union County, the title to which is claimed by the parties on each side of the controversy.

Appellants claim title to the land under a deed of conveyance from the State Land Commissioner, executed on January .8, 1920, purporting to convey the property as internal improvement land.

Appellee claims title under a tax sale made in the year 1877 for the taxes of 1876, and continued occupancy and the payment of taxes by appellee and his predecessors down to the commencement of the present action. Appellee instituted the action in the chancery court of Union County against appellants to quiet his title, which is set. forth in the pleadings, and appellants -answered setting forth their-.title under the purchase from the State Land Commissioner, -as aforesaid, and alleging that the forfeiture for taxes under which -appellee -claims was void, for the reason that the land was then owned by the State, and ivas subject to taxation.

The cause was tried on an agreement in writing as to the facts. Among other things, it was agreed that the land in controversy, describing it, “was subject to taxation for the year 1876, and was. sold for nonpayment of taxes June 14,1877, to Jacob M. Webb, and clerk’s deed of tax sale issued. That since said date (1877) said Webb and his grantee down to the present occupant, petitioner G-. D. Simpson, have beeii in actual possession of said land and paying the taxes on same.”

Appellants introduced the deed under which they claimed, which is dated January 8, 1920, and purports to convey the land as internal improvement land at the price of $2.50 per acre.

There was no attack made on the validity of the tax sale under which appellee claims title, further than the allegation in the complaint that the land was not subject to taxation at that time, for the reason that the title was in the State as internal improvement land. However, appellants are concluded by their own agreement, set forth in the written statement of facts, that the land in controversy “was subject to taxation for the year 1876.”

The chancery court based its decree in favor of appellee upon a finding of fact in accordance with this stipulation, and this finding is conclusive of the case, being supported by the agreement of the parties as to the facts. There is nothing in the record in conflict with this stipulation, except the presumption which arises from the deed of the State Land Commissioner under which appellants claim title. But this presumption is only prima facie and may be overcome by other testimony, and the presumption is overcome by the stipulation to the effect that the land was subject to taxation at the time it was taxed and sold.

There is no proof that this land was ever internal improvement land, except the presumption arising from the recitals of the deed, but, as before stated, this was overcome by the stipulation that the land was then subject to taxation, which necessarily implied either that the land was not of that character, or that the title had passed to individual ownership so as to make the land subject to taxation. None of the records of the Land Department were introduced in evidence, and appellants relied entirely upon the presumption arising* from the recitals of the deed.

Decree affirmed.


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

text:
    Phillips County v. Arkansas State Penitentiary.
    Opinion delivered January 29, 1923.
    1. Constitutional law — power of legislature. — The Legislature may prescribe the form in which an action for the benefit of the State may be maintained.
    2. Prisons — liability of county for maintenance of condemned PRISONERS. — Under General Acts 1921, p. 50, § 11, declaring the purpose of the statute to confer upon the commissioners “the management and operation of the penitentiary,” such commissioners were authorized to sue a county for the collection of money due under § 8, providing that the county from which • any person is brought for confinement in the death chamber for electrocution shall pay to the penitentiary $1 for each day each such person is so confined, and $25 for the electrocution; such expense being a' part of the expense of enforcing the criminal laws, and not a contribution toward the maintenance of the penitentiary as a State institution.
    3. Prisons — maintenance of condemned prisoners — jurisdiction of county court. — General Acts 1921, p. 50, requiring counties to pay the State Penitentiary for maintenance and electrocution of condemned prisoners, is not an evasion of the jurisdiction of the county court in fixing the amount to be paid by the county as. the expense of keeping condemned convicts and executing the sentence of the court.
    Appeál from Phillips Circuit Court; J. M. Jackson, Judge;
    affirmed.

      W. G. Dinning, for appellant.
    1. The Penitentiary Commission has no right or authority to bring or maintain for and in behalf of the State, for the recovery of money alleged to be due the State.
    2. Act No. 44, approved February 1, 1921, under which this claim is prosecuted, is unconstitutional and void, as in violation -of §§ 28 and 30, art. 7, and of § 5, art. 12, and § 5, art. 16, Constitution. 114 Ark. 278; 111 Ark. 108; 125 Ark. 350; 140 Ark. 398.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
    1. The Arkansas Penitentiary Commission had the right to bring and maintain the action. C. & M. Digest, §§ 1098, 1092; §§ 1 and 8 of the Act; 88 Ark. 433; 97 Ark. 374; 10Í Ark.,469; 131 Ark. 557.
    2. The act is not in contravention of §§ 28 and 30, art. 7, or § 5, art. 12, or § 5, art. 16, of the Constitution. 89 Ark. 460; 103 Ark. 452; 104 Ark. 425; 113 Ark. 439.
   McCulloch, C. J.

The Board of Commissioners of the State Penitentiary filed for allowance in the county court of Phillips County a verified account against the county for the keep of certain prisoners held in the State Penitentiary under conviction of capital offenses. The statute under which the right to recover from the county is asserted is a section of act No. 44 of the General Assembly of 1921 (General Acts, 1921, p. 50), which reads as follows:

“Section 8. The county from which any person is brought for confinement in the death-chamber and for electrocution shall pay to the penitentiary the sum of one dollar ($1) per day for each day each such person is so confined, and shall pay twenty-five dollars ($25) for the electrocution of each such person.”

The Attorney General appeared on behalf of the commissioners in the prosecution of the claim, which was disallowed by the county court, and an appeal was duly , prosecuted to the circuit court, where there was a trial anew and a judgment against the county.

The case was tried in the circuit court upon an agreed statement of facts showing that the convicts mentioned in tlie claim were sent to the penitentiary under sentence of death, and were held there for that purpose a certain number of days, sufficient to make out the amount of the claim as provided in the statute.

It is contended, in the first place, that the commissioners of the State Penitentiary have no right to maintain a suit for the collection of the amount.

It was within the power of the Legislature to prescribe the form in which an action for the benefit of the State may be maintained, and the language adopted by the lawmakers in this instance clearly indicates their purpose to authorize a claim to be filed and prosecuted in the name of the Penitentiary Commissioners. The statute provides that the counties of the State shall pay the amount named “to the penitentiary,” and'a subsequent section of the same statute (section 11) declares the purpose of the statute to confer upon the Commissioners “the management and operation of the penitentiary.” This clearly shows that all matters relating to the management of the penitentiary are placed in the hands of this board, and that it is necessarily their duty to present and prosecute claims which accrue under the statute. The question whether or not the money is to be paid into the State treasury is another matter altogether, and does not arise at this stage of the proceedings, and the only question we have now to deal with is whether or not the suit for the recovery may be maintained in the name of the Commissioners of the State Penitentiary.

The suit is, in effect, one on behalf of the State, and the Attorney General appeared not only here, but in the trial below, to prosecute the case for the benefit of the State. We are of the opinion therefore that the claim has been properly filed and prosecuted.

The principal contention here is that the statute imposing upon a county the expense of keeping prisoners under death sentence is void because it is'an expense of the maintenance of the State Penitentiary, which the Legislature has no right to impose upon the counties. Counsel for appellant rely upon the following cases in support of their contention: Cotham v. Coffman, 111 Ark. 108; State use Agricultural School Dist. No. 1 v. Craighead County, 114 Ark. 278; Fort Smith Dist. of Sebastian County v. Eberle, 125 Ark. 350; Dobbs v. Holland, 140 Ark. 398.

Those cases merely establish the principle that the cost of paying salaries of State officers, or the expense of maintaining State institutions, cannot be imposed upon the counties. The expense imposed by the present statute is not, we think, a contribution towards a State institution, or towards tlie pajnnent of the salaries of State officers, but is an expense in enforcing the criminal laws of the State, which has always been held to be a matter within the power of the lawmakers.

Prior to the year 1913, the cost and expense of the execution of a death sentence by hanging was imposed upon the county where the prosecution was had, but the General Assembly of that year enacted a statute changing the method of imposing the death penalty from hanging to electrocution. The statute provided that the superintendent of the State Penitentiary should prpvide a permanent death-chamber for the execution of the death sentence by electrocution, and that all persons sentenced to electrocution should immediately be conducted to the penitentiary and there kept until the imposition of the sentence or the reversal of the judgment. Acts 1913, p. 171, Crawford & Moses’ Digest, § 3253 et seq.

There is no constitutional restriction upon the imposition of costs of prosecution, and it has always been held by this court that this was a matter regulated entirely by statute. Lonoke County v. Reed, 122 Ark. 111. This being true, the Legislature could have provided for electrocution of a convict by the sheriff of th e county and at the expense of the county, as had theretofore been the law with respect to execution of sentence of death by hanging. The fact that the execution of the death sentence is within the walls of the State Penitentiary does not make it any the less a part of the expense of the enforcement of the criminal laws. It is not a part of the maintenance of the State Penitentiary, but it is the expense of imposing the death penalty.

It has been decided by this court that the Legislature has no right to impose upon a county,a contribution towards the salary of a State officer. Cotham v. Coffman, supra; Dobbs v. Holland, supra. But the court has also decided that a county may be required to pay the fees of the prosecuting attorney as a part'of the cost of enforcing the criminal laws. Phillips County v. Clayton, 29 Ark. 246; Lonoke County v. Reed, supra. The distinction to be drawn from these cases is applicable in the present case, and justifies the conclusion that the requirement for the county to pay the amount estimated to be the cost of keeping prisoners held for execution is not, in effect, a requirement that the county shall contribute to the maintenance of the penitentiary as a State institution.

The statute constitutes no invasion of the jurisdiction of the county court in fixing the amount to be paid by the county as the expense of keeping the convicts and carrying out the sentence of the court. Cain v. Woodruff County, 89 Ark. 456; Dobbs v. Holland, supra.

This answers the contention of counsel with respect to the validity of the statute, and we are of the opinion that none of the attacks upon the validity of the statute are well founded.

The judgment is therefore affirmed.

Hart, J.,

(dissenting). From the beginning a State prison system of some sort has been adopted by statute in this State, and its management and operation nas been placed in the hands of State officers or State boards and its maintenance has been at the expense of the State.

Formerly the State cared for all prisoners who were sentenced to be confined in the State Penitentiary, and it was made the duty of the sheriff of the various counties to imprison convicts sentenced to death until the date of their execution and- to execute them. The statute -also provided- that the expenses attending the imprisonment and execution of said convicts should be paid by the county. This was a valid statute; just as the Legislature could have passed a statute requiring each county to erect and maintain a county prison for the confinement of all its prisoners, whether they had committed felonies or misdemeanors.

Judge Smith and myself are of the opinion, however, that the Legislature cannot establish a penitentiary under the management of a State board or State officers and give them the power and authority to imprison convicts sentenced to death until the date of their execution and to execute them, and at the same time place the cost thereof upon the various counties. If the State adopts the plan of -bestowing upon the officers of the State Penitentiary the duty to confine prisoners sentenced to death in the State Penitentiary until the date of the execution and to execute them, the State must bear the expenses thereof, and the cost cannot be placed upon the counties.

On the other hand, the Legislature has the power to again place the execution of criminals condemned to death in the hands of county officers and to require -such officers to care for the prisoners until the date -of their execution, and in that event it might impose the costs upon the county.

In the instant case, -however, the State has reserved to itself the right and power to execute prisoners sentenced to death and also imposes the duty upon the State officers to confine such prisoners in the State Penitentiary until the date of their execution.

The State Penitentiary is essentially and necessarily a State institution, and taxation for the support and maintenance of which, in whole or in part, cannot be imposed upon a single county, but must be borne by the whole State. The contrary view, in our judgment, is opposed to the principles decided in State v. Craighead County, 114 Ark. 278, and Cotham v. Coffman, 111 Ark. 108.

In other words, the General Assembly may make the execution of condemned criminals, and their confinement for that purpose, a function of the county government, in which event the expense thereof would have to be borne by the county. On the other hand this duty might be imposed upon the State as a function of the State Government, in which event the expense thereof would have to be borne by the State. The controlling question here is which agency has the duty to perform, and it appears to us that the State through its General Assembly has assumed this duty, and, that being true, it follows that the expense thereof must be borne by the State.

The penitentiary is, without question, a State institution, and it has been made the function of the managers of that institution to confine -and execute criminals who have been sentenced to death, and the State should therefore pay the operating expense, for such it is.

We perceive no difference in principle between imposing the expense on the counties and making the counties pay for feeding, housing, guarding and clothing or furnishing medical attention to the convicts from the respective counties, which would in effect apportion the cost of the operation of that institution against the different counties per capita, according to the number of convicts coming from the respective counties. And if this can be done in regard to the penitentiary, why may if not be done in the management of the eleemosynary institutions? And in what manner may it be determined how the exnenses of government shall be borne if we denart from the principle settled in the cases cited, in both this and the majority opinion, of requiring the State to bear the expense of the State’s government?

Therefore we. respectfully dissent.


author: Wood, J.

text:
    Coleman v. Williams & Miller.
    Opinion delivered January 29, 1923.
    Sales — fulfillment of warranty. — In an action for the balance due on the purchase price of a cotton cleaner, purchased under a stipulation that “twenty days’ use of cleaner will be conclusive evidence of fulfillment of warranty and acceptance,” held, where it appeared that such cleaner had been used several months before any objection was made to it, a directed verdict for plaintiff was proper.
    Appeal from Lonoke Circuit Court; George W. Glarh, Judge;
    affirmed.

      Williams S Holloway, for appellant.
    There ivas an issue of fact which should have been submitted to the jury, and it was wrong to direct a verdict. 132 Ark. 441. ’
    Appellant contended there was a breach of warranty under which he was entitled to recover under the authority of 79 Ark. 506.
    Payment of part of the account was made upon promise to remedy defects in the machinery. The acceptance or retention of goods sold does not waive the breach of warranty. 35 Cy. 430. See also 104 Ark. 573; 53 Ark. 155. Where retention and use has been induced by request or promise of the seller, there is no waiver of the warranty. 35 Cyc. 433. Under similar facts part payment is not a waiver. 35 Cyc. 433-4.

      Gray & Morris, for appellee.
    The contract stipulated that “tweiity days’ use of the cleaner will be conclusive evidence of fulfillment of warranty and acceptance.” No- complaint Avas made AA’ithin this time, but by three separate acts, after -this time, the contract Avas ratified. A promise by appellee after this time to repair Avas Avithout consideration and not binding.
   Wood, J.

This action Avas instituted by the appellees against the appellant to recover the sum of $210.83, the balance alleged to be due on a promissory note executed by the appellant. The appellant answered admitting that he executed the note for $410j83, July 9, 1917, payable on the 9th of November, 1917; that on January 17, 1918, he paid on the note the sum of $200. He further alleged that the note was executed for the purchase price of a certain piece of gin machinery called a cleaner; that the appellant purchased the cleaner of the appellees'upon the appellees’ guaranty that the cleaner would perform the work of cleaning cotton in an efficient manner and upon the representation of appellees that the cleaner would be beneficial to the appellant to the amount of at least one-fourth cent per pound on all cotton put through the same; that this warranty of appellees had been broken in that the cleaner would not do the work claimed for it; that the appellant notified the appellees that the same was worthless, and asked them to put the same in running condition or to come and get it, which appellees refused to do; that appellant notified the appellees, as soon as he had thoroughly tested the machinery and found that it was worthless, and that he now holds the same subject to the order of the court.

By way of cross-complaint the appellant alleged that the appellees were justly indebted to him in the sum of $200, the amount that he had paid on the note, with interest, and for the amounts expended by appellant in an effort to put the cleaner in a good condition.

The appellees introduced the contract under which the cleaner was purchased, which consisted of an order and a contract of warranty, dated May 12, 1916. In the order appellant requested the appellees to ship to the appellant at Coy, Arkansas, the cleaner, describing it, and agreed to pay all freight and charges and to notify the appellees of the arrival of the cleaner, so that they could send a mechanic to supervise the erection of the same. The order was countersigned by the appellees, and the cleaner was shipped to the appellant as therein requested.

The warranty specified that the cleaner was to be “of good material and well made, and to do the work, with proper management.” It also provided that if, upon fair trial, it should not satisfactorily do the work, immediate notice should be given to the appellees and reasonable time allowed them to remedy the defect. It also specified that, if the cleaner could not he made to perform the work, appellees were to take it back. The appellant agreed to properly install and operate the cleaner, according to the directions furnished by .the manufacturers, and to pay all expenses incurred in erecting it, if the fault were traceable to incorrect installation and operation according to directions. The- warranty also contained this provision: “Twenty days’ use of cleaner will be conclusive evidence of fulfilment of warranty and acceptance. Any failure on the part of the purchaser to comply with his contract releases the warranty entirely.”

Appellees also introduced the note, which was a plain promissory note, executed by the appellant to the appellees July 9,1917, by which the appellant agreed to pay to the order of appellees the sum of $410.83, due November 9,1917, with interest at the rate of eight per cent, per annum from date until paid. Indorsed on the back of the note was the following: “Jany. 17, Cash, $200.”

A witness, brother of the appellant, and a mechanic in charge of the machinery, testified substantially as follows : The cleaner was- installed by -appellant and the agent of the appellees late in the season of 1916. It was tried out two weeks later. As long as the cotton was fed to the cleaner real slowly, it would do all right, but when they tried to run three or four gin stands with it, it would not work. Appellant tried it one year. The appellees were notified that it would not work. The agent of the appellees came back in December, but didn’t get the cleaner to working at that time. The cleaner would have -to stop two or three times a day and cut off the cotton. Witness wrote a letter to appellees in August, 1916, and asked them to come and install the machine. It might have remained there till November or December before appellant gave it a real test. Witness wrote a letter to appellees November 4, 1916, which was signed by the appellant, commending the machine. At that time they hadn’t used the machine enough to know what it would do. It had then been installed probably fifteen or twenty days. Witness left appellant in January, 1917, and did not know personally how it worked after he left. The machine was taken out in the fall of 1919, just before they started the season. Witness complained to his brother about the machine, and his brother wrote to the appellees three or four times to send a man to fix it, or to move it. Keenan, the agent of the appellees, came a few days after witness quit, and tried to fix it.

Another witness testified that he was present when the machine was installed and an attempt was made to use it; that it would choke up, and they would have to dig the cotton out. It was in 1918 the appellees had their man there to fix it. Witness worked continuously from 1916 up to the time he gave his testimony, and the machine never did work satisfactorily. Appellant tried to use it all along. When it would choke up, they would throw it off.

The appellant himself testified that he bought the machine in May, 1916. He tried to use it, and could never make it work satisfactorily. It was installed the latter part of August or September. Appellant didn’t give it a thorough test until the latter part of 1916, because he didn’t need it badly until then. The latter part of November and December appellant gave it a thorough test and began to use it for the purpose for which it was bought. It did very well with clean cotton, but would choke up and detain appellant for several hours if the cotton was not clean. Appellant tried to get appellees to remedy the defects in the latter part of November. The machine choked up every time it was used, and appellant gave appellees notice of that fact. Appellant made a payment of $200 in January, 1918, because the appellees promised to make the machine satisfactory, and the appellant told the appellees they would have to do so. When the appellant paid the $200, he told appellees’ cashier that he would pay the balance shortly, for the reason that he had several letters from appellees saying they were going to make the machine satisfactory. As soon as appellant saw they would not remedy the defect, he took the machinery out and gave appellees notice to come and get the same. They didn’t come, and made no response to appellant’s letters. The cleaner was connected with the gin, and appellant had to use it or take it out entirely.

The above are the facts upon which the court instructed the jury to return a verdict in favor of the appellees for the amount sued for, with interest. The jury returned such a verdict, and the court entered a judgment in favor of the appellees for the sum of $210.83 and for costs, from which is this appeal.

The ruling of the court was correct. There was a clause in the contract under which the machine was purchased which reads as follows: “Twenty days’ use of the cleaner will be conclusive evidence of the fulfillment of warranty and acceptance.” Under this provision of the contract the -appellant could not, after the installation of the cleaner, use the same for more than twenty days and then set up that there was a breach of warranty on the part of the appellees by not furnishing a machine that was satisfactory to the appellant. The very purpose of this provision of the warranty, as we construe it, was to give the appellant twenty days within which to use and test the cleaner, and if the appellant did not, within that time, notify the appellees that the cleaner was unsatisfactory, he could not thereafter continue to use the machine in an endeavor to make the same work t-o his satisfaction, and, failing to do so, claim that appellees h-ad violated their contract of warranty. ■ The manifest purpose of the provision of the warranty quoted, as plainly expressed therein, was to- make twenty days’ use of the machine conclusive evidence of the acceptance -thereof on the part of the appellant and the fulfillment of the warranty contract by the appellees.

The undisputed testimony shows that the appellant did use the cleaner more than twenty days after its installation, and such use was not at the request of the appellees. The appellant wrote to the appellees as follows: “We have one of your machines in our gin, and we think it has been very valuable to us. ’ ’ This letter was written after appellant had used the machine. The provision of the contract quoted contemplates that the appellant should test out the machine within twenty days after its installation, and make whatever objection he had to offer thereto, and, if he didn’t do so within the twenty days, he was foreclosed from setting up a breach of the warranty on the part of the appellees.

The record presents no error, and the judgment isllierefore affirmed.


text:
    Davenport v. Gray.
    Opinion delivered January 29, 1923.
    1. Appeal and error — appeal from directed verdict. — On appeal from a judgment on a directed verdict, the court must give the testimony its strongest probative force in appellant’s favor.
    2. Accord and satisfaction — jury question. — Whether the amount of a physician’s claim for professional services was disputed and whether there had been an accord and satisfaction in settlement thereof, held for the jury.
    3. Accord and satisfaction — what claims may be settled. — All disputed claims, irrespective of their subject-matter, may be settled by a contract of accord and satisfaction, provided such contract is not tainted with fraud or illegality.
    Appeal from Jaclcson Circuit Court; Dene H. Coleman, Judge;
    reversed.

      G. A. Hillhouse, for appellant.
    It is sufficient to support a settlement of this kind to show an actual controversy between the parties involving a question of doubt on both sides, and that at the time of the agreed settlement there was a compromise fairly and deliberately made. 12 C; J. 334. The evidence raised a disputed question of fact here which ought to have been submitted to the jury. 103 Ark. 61; 107 Ark. 487.

      Fred M. Pickens, for appellee.
    The court properly directed the verdict. The claim was undisputed. An accord and satisfaction of an undisputed claim must be supported by a new or'additional consideration. 1 it. C. L. 179, 183; 75 Ark. 354; 88 Ark. 476; 2 Ark. 45; 70 Ark. 220. Part payment is no consideration for the release of a debt already due. 54 Ark. 185; 55 Ark. 369. See also 40 Ark. 180; 44 Ark. 349.,
   Wood, J.

This is an action by the appellee against the appellant to recover on an account for professional services alleged to have been rendered by the appellee to the appellant, for which the appellee asked'judgment. The appellee testified that the • appellant was indebted to him in the sum of $216. He exhibited an account which was taken front his books. He stated that the sum of $24 had been paid on the account. The appellee stated that he never made any agreement with the appellant to reduce the account to the sum of $24, and denied that he ever made a statement- to the appellant or to any one else that he agreed to reduce the account to $24. He mailed the appellant a statement of the account showing the number of visits charged for, amounting in the aggregate to $240, which was credited -by -check for $24, leaving a balance due of $216. The account was exhibited to the jury. The appellee stated that the account was correct, and was past due and unpaid. On cross-examination the appellee identified a statement which had been rendered to the appellant by the appellee, which statement is as follows:

‘ ‘ Statement.
“Dr. C. R. Gray.
“Newport, Arkansas, Sept. 28, 1921.
“Professional Services Rendered to....................................$24.00
Amount paid
Balance ...................................................................................................$24.00
“To Will Davenport
“Newport No. 1”

Appellee also identified a similar statement dated October 12th.

Appellee also exhibited a check which had been given-to him by the appellant for the sum of $24, which check and statement were introduced in evidence. Appellee testified that the statements showing the account as $24 were due to an error made by tbe girl who worked in his office and who mailed out the, statements for him. The statements should have been for $240 instead of $24. The correct amount of $240 is shown by his books. Appellee did not supervise the sending out of the statements, but told the young lady working in - his office to send them out.

Miss Blanche Hee-bes testified that she was working in the appellee’s office in September and October, and that she mailed out the statements of the accounts which had been exhibited and introduced in evidence. The appellee never instructed her to mail a statement to the appellant for the sum of $24. Appellee was sick from the 29th of September until some time in December. The statements sent out by her showing the amount of appellant’s account to be $24 was a mistake made by witness. The amount of the. account, as shown by appellee’s ledger, was $240, and the ledger showed a credit of $24. The appellee was permitted to exhibit the ledger to the jury.

The appellant testified that the appellee had visited appellant’s wife during her illness, and that appellant discharged him from the case. Afterwards the appellant met the appellee on the road and asked the appellee what kind of a bill he had against the appellant. The appellant told appellee that he had called him to wait on his wife, and with proper attention she would not have had the long spell of sicknes-s. Appellee at that time told the appellant to send appellee $24 in settlement of the account, $20 being for the initial treatment of appellant’s wife and $4 for a previous trip. Appellant told appellee to send him a statement. Appellant received a statement on September 28th for $24, and subsequently received two more statements showing a similar amount to be due. When he received the statement on October 12th he mailed appellee a check for $24. Appellant never received a statement showing $240 to be due. Appellee came to- appellant’s house and had a conversation in regard to the matter shortly before suit was filed, which was after appellant had sent the appellee his check for the amount of the account rendered.

On cross-examination, appellant testified that before his wife got sick he owed the appellee $4. Appellant discharged the appellee on the 4th of February. Appellee came to visit appellant’s wife about the 29th of December and visited her twice a day until appellant stopped it. Appellant had told appellee the reasons he objected to paying more than $24, and appellee agreed to accept $24 in settlement of his bill. Appellant had told appellee that he had not treated appellant’s wife properly, and that appellee’s conduct was ridiculous. The appellee said that he had not done anything wrong. Appellant told him some of the things that he had done wrong, and thereupon appellee stated that he didn’t know that appellant was dissatisfied, and asked appellant to send him $24 and let it go. Appellant then told appellee that he didn’t pay his bills until he got a statement, and asked appellee to send him a statement of the account agreed upon. Appellant got a statement, and mailed a check to appellee after the last statement was received.

Two witnesses testified to the effect that they had seen the-appellant and appellee engaged in conversation about the time and place mentioned by the appellant as the time and place the conversation took place between him and the appellee concerning the agreement for settlement of the account.

Appellee testified that his visits for which he charged the appellant were when he was sent for by the appellant, or in response to a call over the telephone.

The court gave the jury the following instruction: “The plaintiff in this suit seeks to recover from the defendant upon an account which has been verified by the evidence in this case, and the amount of it undisputed, the correctness of the account undisputed. Under the law in this case’, it becomes my duty to instruct you to return a verdict for the plaintiff for the amount of the account, $216 with interest,” The appellant duly objected and excepted to the ruling of the court. The jury returned a verdict, as directed, for the sum of $216. Judgment was entered for that sum with interest, from which is this appeal.

The court erred in instructing the jury to return a verdict in favor of the appellee. . We must give the testimony its strongest probative force in favor of the appellant. When this is done, it occurs to us that, under the testimony, it was an issue of fact for the jury to determine as to whether or not the claim of the appellee against the appellant was disputed. If the jury found that the claim was disputed, it was also an issue for the jury as to whether or not there had been an accord and satisfaction. “All disputed claims, irrespective of their subject-matter, may be settled by a contract of accord and satisfaction, provided such contract is not tainted with fraud or illegality.” 1 R. C. L. p. 179, sec. 4; 12 C. J. 334, sec. 24, and cases there cited in note 4; see especially Harris v. Henderson, 100 A. S. R. p. 386, note at p. 409 et seq. These issues should have been submitted to the jury under instructions applicable thereto. The court therefore erred in telling the jury, as a matter of law, that the amount of the appellee’s account ag-ainst the appellant was undisputed.

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