text:
    Berry v. Harris.
    4-2721
    Opinion delivered November 14, 1932.

      W. A. Dickson, for appellant.

      John W. Nance, for appellee.
   Smith, J.

Appellant resides on an improved road eight miles from Bentonville, and has his mail delivered daily by a rural route mail carrier. Appellee is his neighbor and first cousin. On Tuesday, December 2, 1930, ap-pellee purchased certain cattle from appellant, and in payment therefor gave a check for $600! on the Benton County National Bank, located in Bentonville. Appel-lee did not have this amount of money on deposit with the bank at the time he delivered the cheek, but he had arranged with the bank for its payment, and he told appellant that he could get his money at any time. The cattle were loaded in a truck by appellee and taken to Kansas City, Missouri, where they were sold, and the proceeds of the sale were deposited by him to the credit of the Kansas City correspondent bank of the Benton Connty National Bank.

Appellant is á farmer, and it was his custom — known to appellee — to go to Bentonville to sell produce and to uake purchases on Saturdays, and, except in eases of emergency, he did not go on other days.

On the Saturday following the sale of the cattle appellant went as usual to Bentonville, and upon arriving there he found that the bank upon which his cheek was drawn had closed its doors that day, and it has not since reopened.

The parties had several conversations about the check, and appellant has at all times demanded that ap-pellee pay it. The position of the latter was that they should divide the loss between them. Finally appellee paid appellant $200, which the latter refused to accept in full settlement of his demand, but when this payment was made appellee stated that he would pay nothing more unless the court compelled him to do so.

This is a suit on appellant’s part to recover the balance of $400, and is defended by appellee upon two grounds: (a) that appellant had negligently delayed to cash the check, and (b) that an accord and satisfaction had been accomplished.

The court found there had been no accord and satisfaction; and we concur in that view.

The difficult question is, whether, as found by the court below, appellant, by his delay, has not himself sustained the loss.

The law of the subject was reviewed in the recent case of Federal Land Bank of St. Louis v. Goodman, 173 Ark. 489, 292 S. W. 659, where the court quoted as follows from the case of Burns v. Yocum, 81 Ark. 127, 98 S. W. 956: “ CA cheek, like a bill of exchange, must be presented for payment within a reasonable time, and what is a reasonable time will depend upon the circumstances of each particular case. ’ ’ ’

It was said in the Goodman ease, supra, that what was a reasonable time in any case depends on the circumstances of the particular case, and “means such time as a prudent man would exercise or employ about his own affairs. ’ ’

The instant case is on the border line, hut, when the situation and circumstances of the parties are taken into account, we have concluded that the check was not held for a time so unreasonable as to require the payee to sustain the loss. The payee was a farmer, not engaged in a commercial business. He resided eight miles from the trading town, in which the bank was located upon which his check was drawn, and only three days intervened before the check was presented for payment. Under all the circumstances we have concluded that appellant was not guilty of unreasonable delay in presenting the check for payment.

Having found that appellant had negligently failed to present the check within the time required by law, the court below decreed that appellant be subrogated to the rights of appellee in the deposits of the latter with the insolvent bank, to the extent of $400.

The entire decree will be reversed, and the cause will be remanded with directions to enter a personal judgment against appellee for the unpaid balance of $400 with interest.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Lile v. State.
    Crim. 3817
    Opinion delivered November 14, 1932.

      Hays S Smallwood and Cochran & Arnett, for appellant.

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

This appeal is from a judgment of conviction for the murder while attempting’ robbery of one Cyrus Luman, who was killed by being struck on the head with a blunt instrument on the night of April 3,1932, at about 7 or 8 o’clock, as he was closing his store, located in the Northern District of Logan County.

The only eye-witness stated that, while Mr. Luman had his back turned trying to lock the store door, a man with a white mask over his face ordered him to “Stick ’em up! ” and as Luman turned the robber struck him on the head two or three times, knocking him down, and took witness’ horse, upon which he had come to the store, and fled. The robber was about the same size and height as defendant.

The defense was an alibi, and 12 or 15 witnesses testified about having seen the defendant at other places during the day and on the night of the killing, which, if true, would have rendered it impossible for him to have been present at the time of the killing.

A witness, Frank Faulkenbury, who testified he was with the defendant all day, said he was in the vicinity of the killing and turned back near a certain filling station, and when they arrived at a graveyard a little before sundown he and his wife got out of the car, and Owen Lile, the appellant, went north for the purpose of getting some wine. That he was gone about an hour, and returned shortly after dark. This witness was called for further cross-examination the next day, and, being asked if he had not made the statement to certain people, naming them, on the night before that he was so drunk after he left Harkey Yalley that he didn’t remember anything, admitted that he made the statement, and said that he was so drunk after he left Harkey Yalley that he did not know what happened. He also said that his first statement made to the deputy prosecuting attorney and a deputy sheriff was made upon their promise to turn him out of jail and let him go to work, he being in jail at the time charged with the murder of Luman. Thereupon, the prosecuting1 attorney, in the presence and hearing of the jury, arose and said to the court, “If the court please, I want this man arrested and held on a charge of perjury.” And the court replied: “Mr. Sheriff, you will take this witness into your custody.” Defendant’s attorney objected to the statement made by the prosecuting attorney and the action of the court, and saved exceptions. This is the only error urged for reversal of the cause.

In Crosby v. State, 154 Ark. 20, 241 S. W. 380, it is held that the commitment of a witness for perjury during the trial of the cause before a jury was prejudicial error. See also the note in the case of State v. Swink, 151 N. C. 726, 66 S. E. 448, 19 A. & E. Annotated Cases, wherein it is said to be the general rule that the commitment of a witness for perjury during’ a trial is prejudicial error. It was an invasion of the province of the jury by the trial judg’e to tell them in effect that the witness perjured himself in his testimony that would have been beneficial to appellant on the trial, necessarily discrediting his former testimony placing the defendant in the vicinity of the murder where he could have been present at the time of the killing.

The court might well have ordered the witness arrested after he left the court room and the presence of the jury, if he thought it should have been done, without having it done at the time, and, for this error, the judgment is reversed, and the cause remanded for a new trial.


author: Mehaffy, J.

text:
    United States Ozone Company v. Morrilton Ice Company.
    4-2731
    Opinion delivered November 14, 1932.

      W. P. Strait, for appellants.

      Robinson, House & Moses and Edward Gordon, for appellees.
   Mehaffy, J.

On June 28,1926, the appellants sold to the Morrilton Ice & Fuel Company, Charles Daugherty and James Daugherty certain material for $2,020, who paid cash with the order $510, leaving a balance of $1,510. This sum was not paid, and on September 30,1926, appellants filed suit in the Conway Chancery Court against the Morrilton Ice & Fuel Company and the Daughertys for the balance due and prayed judgment for the debt, interest and costs, and that a lien be declared, and the property described be sold to pay the indebtedness, interest and costs.

A decree was entered in favor of appellants for the indebtedness, a lien was declared, and the property was ordered sold. An appeal was taken to this court, and the case was affirmed here. Morrilton Ice & Fuel Co. v. Montgomery, 181 Ark. 180, 25 S. W. (2d) 15. The Morrilton Ice & Fuel Company was a partnership, composed of J ames Daugherty and W. Charles Daugherty.

Before the above case was determined, a corporation was organized by the Daughertys under the name of Morrilton Ice Company, and the property of the partnership was conveyed to this corporation in November, 1927. About December 5, 1925, W. Charles Daugherty and James Daugherty executed and delivered to the Bank of Morrilton a note for the sum of $10,000. The note became due and payable December 12, 1925, and bore interest at the rate of 10 per cent, per annum until paid. The mortgage was properly recorded, and it contained the following clause:

“This mortgage is also given to secure any other indebtedness that we, or either of ns, may be due the said Bank of Morrilton at any time prior to a foreclosure of this instrument.”

Thereafter, in February, 1926, the Bank of Morril-ton made another loan of $12,000 which became due in February, 1927. This note also bore interest at the rate of 10 per cent, per annum until paid. There was still another loan made July 29,1926, for $4,216, and this note also bore interest at the rate of 10 per cent, per annum until paid.

The Bank of Morrilton thereafter became insolvent, and the Bank Commissioner took charge and sold the assets of the Bank of Morrilton to the First State Bank of Morrilton. In October, 1927, the First State Bank of Morrilton assigned and delivered the notes above mentioned, together with the mortgage securing the payment of said notes, to the Bankers’ Trust Company of Little Rock, Arkansas, and thereafter the Bankers’ Trust Company transferred and assigned said notes and mortgage to the Southwest Public Service Corporation.

It is alleged by the intervener, Southwest Public Service Corporation, that there is still due $37,607.80, with interest at the rate of 10 per cent, per annum from November 1, 1930, until paid.

The assignment to the Bankers ’ Trust Company was as follows: “For value received, this note, together with all mortgage liens securing the payment of same, is hereby transferred and assigned to the Bankers’ Trust Company without recourse on the First State Bank.”

This suit was begun by appellants in the Conway Chancery Court, who alleged the indebtedness of $1,510 with interest, for which they had a materialman’s lien; that the lien had been foreclosed, the property ordered sold, and appeal taken to this court, where the judgment was affirmed. They also alleged the indebtedness claimed by the interveners and their mortgage were fraudulent and void, and that the transfers were fraudulent and void, and it was further alleged that the debt to the Bank of Morrilton had been paid.

The defendants in the action, Morrilton Ice & Fuel Company and the Danghertys, filed answer denying the material allegations of the complaint. The Southwest Public Service Corporation filed an intervention alleging the indebtedness above set out, and the case was tried on the evidence of witnesses and the notes and mortgage and assignments thereof.

There is some conflict in the evidence, and the chancellor entered a decree in favor of the appellees, thereby holding that the intervener’s lien was superior to appellants’ lien. There were some charges of fraud in the transfer of certain property to Daisy Hines Daugherty, wife of W. Charles Daugherty, but these questions are not argued by appellants, and we will not discuss them. The only question for our consideration is, whether the ap-pellees’ lien is prior to the mechanic’s lien established by appellants.

As we have already said, there is some conflict in the evidence, and there is no question about the priority of appellees’ lien, unless appellants have established fraud.

It is contended by the appellants that, at the time the Morrilton Ice Company was organized as a corporation and issued shares, the appellants had a valid, subsisting lien on the new ice plant, and they contend that the pen-dency of their suit is constructive notice of the matters involved in the suit.

This is true, but the mortgage now held by appellees was executed to the Bank of Morrilton prior to the time of the bringing of the suit, and also prior to the time that appellants purchased the property for which they claim and have established a lien, and, unless there was some fraud, either in the debt, notes and mortgage, or the transfers, then unquestionably the mortgage lien would be prior to appellants’ lien, so that, after all, it is a question of fraud.

If the transactions described by appellants were in good faith, and such transactions took place prior to the rights of the appellants, the appellants would have no right to complain, and appellees’ mortgage would have priority.

Appellants call attention to many authorities which we do not deem it necessary to discuss, because there is no dispute about the law. We do not deem it necessary to set forth the evidence, because, as we have already said, there was some conflict, and the only question is whether or not the evidence established fraud. Fraud is never presumed, but must be affirmatively proved, and the burden of proving fraud is upon the party who alleges it and relies on it. 27 C. J. 44 et seq.

Whether or not there has been fraud in any case is usually a question of fact. Fraud is a question of law only when the facts are undisputed and but one reasonable conclusion can be reached from the evidence, or where there is an entire failure to sustain the issue. 12 R. C. L. 444-445.

The rule is well established in this court that the finding of the chancellor on questions of fact will not be set aside by this court unless we can say that the finding of the chancellor is against the preponderance of the evidence.

We have very carefully examined the evidence, and have reached the conclusion that the finding of the chancellor is not against the preponderance of the evidence, and the decree is therefore affirmed.


author: McHaNey, J.

text:
    Hickman v. Weidman.
    4-2732
    Opinion delivered November 14, 1932.

      H. P. Smith-, for appellant.

      Boss Mathis, for appellee.
   McHaNey, J.

Appellant sned appellees to recover damages for personal injuries received by liim while in their employ as a log-hauler in the woods. He was driving a four-mule team hitched to a log wagon, riding the lead mule of the rear span, and, while avoiding an obstruction in the log road, the wagon ran over a sapling which was dragged down onto appellant, striking him on the back and neck with such force as to crush him down on the pommel of the saddle, break three of his ribs and otherwise seriously injure him. Negligence of appellees was alleged to be that they failed to furnish him a safe place to work — failed to furnish him a safe road over which to haul logs. The particular allegations from the complaint in this respect being as follows: “That it was the duty of defendants to furnish plaintiff with a reasonably safe road over which to travel to said log yard, they having cut out said road and furnished it for plaintiff’s passage thereover. That defendants, in -cutting said road, failed to exercise ordinary care, but cut said road hurriedly and carelessly, leaving it narrow, crooked and dangerous. That plaintiff had used said road only on a few occasions, and at most of those times only for the purpose of taking his team alone to and from his work. That he had suggested to defendants that said road was not wide enough to haul logs over. That on said date plaintiff advised defendant, Weidman, when directed to go for said load of logs, that he, Weidman, according to his information, had recently, and since plaintiff had been over said road, cut certain special order logs along the course of said road and thrown some of the tops thereof in said road, which tops had not been entirely removed, thereby causing said road to be dangerous for the purpose of driving a wagon and team thereon. That defendant, Weidman, thereupon advised this plaintiff that he could get over said road and directed him to go for said load of logs. That plaintiff, without fault or carelessness on his part in carrying out said orders and attempting to pass around a tree top thrown in said road by defendant, Weidman, the said road thereby being made narrow, caught the bumper on the front end of said log wagon against a sapling, frightening the teams, one of which he was riding, throwing said sapling against his back and neck, crushing him down against the pommel of the saddle, breaking three of his ribs, and severely injur-1 ing his back and neck, causing him great physical pain and mental anguish.”

Appellees interposed a general demurrer to this complaint, which the court sustáined, and upon his declining to plead further, his comjplaint was dismissed.

We think the court was correct in so holding, and that this case is ruled in principle by the recent case of Williams Bros. v. Witt, 184 Ark. 606, 43 S. W. (2d) 237. We think the complaint fails to allege any negligent act upon the part of appellees. An experienced log-hauler, such as appellant alleges himself to be, knows without investigation that in hauling logs from the woods he doesn’t have an improved highway to travel over, and that the roads are crooked by reason of the necessity of avoiding obstructions. All these facts are known to the employee, as well as to the employer. He simply took the trail through the woods as he found it and voluntarily assumed all the risk and hazard in passing over it. The complaint shows that appellant knew and appreciated the danger incident to driving over the road. The driving of the team over or upon the sapling which was dragged down and struck appellant was his own act, and was not participated in by the appellees in any respect whatever. He was simply instructed to haul the logs and necessarily had to use his'own judgment in doing so. His employers were not present and were not immediately directing his actions. If there was any negligence, it was that of appellant himself. In Williams Bros. v. Witt, supra, we said: “The right-of-way where appellee received his injury was his accustomed place of work. Its condition was open to his observation when he took the job. Appellee had been engaged in farming and logging all of his life, and the work he was performing was no different from hauling wood on a farm or in hauling logs. An unavoidable accident is a complete defense against liability.”

So here, appellant’s injuries were not caused by any negligence of the appellees, but was simply an unavoidable accident, for which no person is responsible.

The court correctly sustained the demurrer, and the judgment of the court must be affirmed.


text:
    Cantley v. Irby.
    4-2822
    Opinion delivered November 14, 1932.

      W. E. Rhea and G. B. Segraves, for appellant.
   McHaNey, J.

Petitioner is the receiver of the St. Louis Joint Stock Land Bank, and respondent is the judge of the chancery court of Lawrence County. It is sought to compel, by mandamus, the respondent to appoint a receiver in certain mortgage foreclosure suits now pending in his court. In addition to the mortgage indebtedness and default in its payment, the complaints alleged that the lands were not of sufficient value to pay the amount of the judgment that should be rendered against them, and that the mortg’ag’ors were insolvent. The respondent declined to appoint a receiver or to hear any testimony in support of the above allegations, because of the provisions of § 1 of act 253, Acts 1931, p. 791. This section reads as follows: “In an action by a mort gagee for the foreclosure of Ms mortgage, and the sale of the mortgaged property, a receiver may be appointed where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the conditions of the mortgage have not been performed, and that the property is probably insufficient to discharge the mortgage debt; provided, however, that no receiver shall be appointed at the instance of the holder of the mortgage where it appears that the debtor or mortgagor has mortgaged his crops, or his interest therein, for the purpose of obtaining money or supplies for the making of the crop and/or waived his rents, for said purpose, and that said mortgage debt and/or the consideration for said waiver of rents has not been repaid. ’ ’

This statute does not make it obligatory on the court to appoint a receiver, but the provision is that it “may” do so, except in case the mortgagor has mortgaged his crops or waived his rents to obtain money to make the crops, which is thé situation in the cases now pending in respondent’s court.

The writ of mandamus will not issue to control the judicial discretion of an inferior court, but only to compel an exercise of such discretion. Such has always been the rule in this court since Gunn v. County of Pulaski, 3 Ark. 427, and still is. Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002. The respondent was vested with the discretion to appoint or to refuse to appoint a receiver. He exercised such discretion by refusing to appoint, and his action in so doing can be reviewed in this court only by appeal on the whole case. In this court, on a proper showing that the fruits of the litigation might be lost through delay, the case would be advanced.

Therefore petitioner had a complete and adequate remedy by appeal, and the writ of mandamus will be denied.


author: Butler, J.

text:
    Allen v. Barnett.
    4-2867
    Opinion delivered November 14, 1932.

      Ernest Neill, for appellant.

      8. M. Casey, for appellee.
   Butler, J.

Independence County was the owner of a common claim for deposits it bad on hand in an insolvent bank amounting to the sum of $28,882.42. This bank has been in the course of liquidation since its failure in 1930, and no dividends have been paid on this claim, or any other of its class, except by special trade-out by -conveyance or by assignment by the Bank Commissioner of lands or personal property other than money in satisfaction of such claim.

With this condition existing, the county court, on September 5, 1932, entered into a contract with the ap-pellee by which it undertook to sell to him the aforesaid claim at the rate of twenty-five cents on the dollar, aggregating the sum of $7,220.60, and on that date entered an order directing the manner in which said contract should be carried into effect by the clerk and treasurer of said county. These officers questioned the power of the court to make the contract and order, and refused to -comply therewith.

A petition for mandamus was filed in the circuit court, replies were filed by the appellants, and, upon consideration of the pleadings and testimony, the court found “that said order made by the county court was fair and just in its terms and without collusion, and that the price obtained for the deposits was fair and reasonable and as good as can be obtained at this time, and that the other deposits in said bank, both State and individual, have been sold for no greater sum. And that, on account of the uncertainty as to the time of liquidation of said bank, and the date when the county and its various agencies would receive any dividend therefrom, that it is to the best interest of the county that said deposit claim be sold and the proceeds made available now for the county, and therefore the court finds that the petition for mandamus of plaintiff should be,' and it is, hereby granted. It is therefore considered,” etc.

On appeal the appellants do not question the good faith of the county court in making the order or its beneficial effect. Indeed, the evidence is not in conflict, and fully warrants the findings of fact made by the court. The question presented is one of power in the county court to make the sale to afppellee, it being the contention of the appellants that no express authority is to be found in the Constitution or statutes, and that, as a county court could not pay a claim of the county in any greater amount than the value of the claim in lawful money of the United States, they reason that a demand of the county could not be sold for less than its face value. The county court is a creature of the Constitution, and it is not to be doubted that it has only such power as is expressly granted by the Constitution and statutes in aid thereof, or which are necessarily implied from the authority conferred.

The question before us is not the allowance and payment of a claim against the county, but the sale by the county of a demand it has for money due it. Therefore, § 2088, Crawford & Moses’ Digest, quoted by the appellants to sustain their contention, does not apply. Section 28 of article 7 of the Constitution prescribes the jurisdiction of county courts, and § 2279 of Crawford & Moses’ Digest is the statute passed in aid of the constitutional provision. The applicable part of the sections of the Constitution and Digest is as follows:

Section 28, article 7, Constitution: “The county courts shall have exclusive original jurisdiction in all matters relating’ to county taxes, etc., * * * and in every other case that may be necessary to the internal improvements and local concerns of the respective counties.”

Section 22791, Digest: “The county court of each county shall have the following powers and jurisdictions: * * * to have the control and management of all the property, real and personal, for the use of the county; * * * to sell and cause to be conveyed any real estate or personal property belonging to the county and appropriate the proceeds of such sale for the use of the county. ’ ’

We have held that the above provisions of the law authorize the county court, in the exercise of a sound discretion and acting in good faith, to sell real estate in the manner prescribed by statute. State v. Baxter, 50 Ark. 447, 8 S. W. 188; Little Rock Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S. W. 848; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006. Indubitably, the power to sell personal property exists, as does the power to sell and convey real property. Section 9736 of 'Crawford & Moses’ Digest, cited by the appellee, defines “personal property” as including “money, goods, chattels, things in action and evidences of debt”; so, the demand of the county for the deposit in the insolvent bank is personal property within the meaning of the statute, and, under the express provisions of the Constitution and statutes quoted, supra, we are of the opinion that the county court was authorized to make the order, and the circuit court was correct in awarding the mandamus, and its action in so- doing is affirmed.

Kirby, J., dissents.


text:
    Hogan v. Thompson.
    4-2735
    Opinion delivered November 14, 1932.

      J. Boy Howard, for appellant.

      Fred A. Isgrig and Harry Robinson, for appellee.
   Butler, J.

Suit was instituted by tbe appellee in the court below to recover on a promissory note executed by the appellant, due six months after date, with interest thereon at the rate of 10 per cent, per annum from date until paid. The answer admitted the execution of the note, but set up usury as a defense thereto. The case was submitted to the court sitting as a jury on the following agreed facts:

“That on November 17, 1931, the defendant, J. P. Hogan, applied to the plaintiff, Anne Thompson, for a loan of $100. That the plaintiff was engaged in the loan business in Little Bock, Arkansas, and that she was also the agent of the Merchants’ Coupon .Service Company of New York, a large firm dealing in all kinds, of jewelry, radios, washing machines, and other merchandise.

“That the plaintiff agreed to make the defendant a loan of $100 if he would purchase a $10 coupon at the cost of $7.50, which he could use for $10 cash in the purchase of $40 or more merchandise from the Merchants’ Coupon Service Company.

“That the defendant agreed to purchase said coupon, and gave his note for $100, due six months after date and hearing interest at the rate of 10 per cent, per annum, as evidenced by the note filed with the complaint. That defendant received $92.50 cash and a $10 coupon.

“Defendant admits that the coupon may be used for $10 cash upon the purchase of any article of $40 or more, but states that he has not used, or does not intend to use, said coupon, and that he agreed to purchase it in order to obtain the loan.

“It is further agreed that the plaintiff did not know at the time the loan was made that the defendant did not intend to use the coupon in the purchase of merchandise. ’ ’

The conventional rate of interest in this. .State is 10 per cent., and, by § 13 of article 19 of the Constitution, all contracts for a greater rate of interest are declared to be void. This constitutional inhibition cannot be avoided by any trick or device, and the courts will closely scrutinize every suspicious transaction in order to ascertain its real nature; and if it appears that the contract is merely one for the loan of money with the intention on the part of the lender to exact more than the lawful rate of interest, the contract will be declared usurious and void. Ellenbogen v. Griffey, 55 Ark. 268, 18 S. W. 126; Reeve v. Ladies’ Building Ass’n, 56 Ark. 320, 19 S. W. 917; Dickerson-Reed, etc., Co. v. Stroupe, 169 Ark. 277, 275 S. W. 520.

The principles by which the usury laws are to be applied in any given case are well settled. The burden rests upon the party pleading usury to establish it by a fair preponderance of the testimony, and it must appear that there was an intent by the lender to exact more than the lawful rate of interest, and usury will not be inferred where the opposite conclusion can be reasonably reached. Citizens’ Bank v. Murphy, 83 Ark. 31, 102 S. W. 697; Bauer v. Wade, 170 Ark. 1020, 282 S. W. 359; Cammack v. Runyan Creamery Co., 175 Ark. 601, 299 S. W. 1023. Collateral contracts entered into contemporaneously with a contract for the lending and borrowing of money, where the .collateral agreement is in itself lawful and made in good faith, will not invalidate the contract for the loan of money as usurious, although its effect might be to exact more from the borrower than the sum which would accrue to the lender from a legal rate of interest. This is based on the principle that, since the law forfeits the entire loan and interest thereon for an exaction of usurious interest, however small, the intent to exact a usurious interest must be clearly shown and will not be inferred where, from the circumstances, the opposite conclusion can be reasonably and fairly reached. In the application of that principle, it was held in the case of Citizens’ Bank v. Murphy, supra, that a loan of money was not usurious although the lender received certain commissions for collecting money which was applied to the payment of the debt, which commissions with the interest charged exceeded 10 per cent.

In Simpson v. Smith Savings Society, 178 Ark. 921, 12 S. W. (2d) 890, the court quoted with approval the general rule stated in 27 ft. C. L., § 31, at page 230, to the effect that an agreement for a loan is not usurious, even though the lender refused to make it unless the borrower would enter into another contract from which the lender might gain advantage, if the collateral agreement was fair and legal.

In the case at bar the appellee was engaged in the loan business, and was also the agent of a mercantile firm which dealt in various commodities. The $10 coupon which the appellee required the appellant to purchase as a condition precedent to her making the loan could be applied in payment at its face value upon the purchase price óf any article of merchandise amounting to $40 or more purchased from the mercantile company. In the absence of a showing to the contrary, we must infer that the articles in which the mercantile company dealt were such as the company purported them to he, and the price for which they would be sold would be such as was usual and customary for such articles, and that they were worth the price demanded. The borrower did not intend to purchase any of the articles of merchandise or to use the coupon, but only bought it in order to obtain the money. The lender, however, at that time did not know that the borrower did not intend to use the coupon in the purchase of the merchandise. Therefore there can be no presumption that she intended the sale of the coupon as a device by which she might extort a sum greater than the legal rate of interest from the buyer, and, applying to the transaction the principles heretofore announced, we conclude that the court correctly found there was no usury shown, and that the appellee was entitled to recover her debt and interest.

Affirmed.


author: Smith, J.

text:
    Ogden v. Watts.
    4-2738
    Opinion delivered November 21, 1932.

      Gentry & Gentry, for appellant.
   Smith, J.

On May 21, 1921, Henrietta Colter, being-indebted to Emma Anderson, executed a note to evidence the debt and a mortgag-e, of even date, to secure its payment one year after date. The mortgagor died intestate and childless on December 9, 1929. After executing the note and mortgage, the mortgagor married Preston Watts, who furnished his wife the money with which to pay the note, but he took no assignment thereof until December 14, 1929, which was subsequent to the date of the death of his wife. On the last-mentioned date Watts took an assignment of the note and mortgage to himself, and on September 2, 1931, brought suit against the heirs of his wife to foreclose the mortgage. No payments had been indorsed upon the note.

An answer was filed by Ogden, who alleged that he had acquired the interests of the heirs of Henrietta Col-ter. This answer alleged the note was barred by the statute of limitations. Other defenses were also set up, which we do not consider, as, in our opinion, the suit was barred by the statute of limitations at the time it was filed.

The court below found that the note was barred by the statute of limitations at the time it was paid, but it appears to have been the view of the chancellor that, having furnished the money with which to pay the note and the mortgage at the request of his wife, the mortgagor, plaintiff was entitled to a lien on the land for the money paid, against which sum the rent of the property subsequent to the death of plaintiff’s wife was charged him and credited on the debt claimed by him, and this appeal is from that decree.

It is conceded that, under act 149 of the Acts of 1925, page 441, entitled, “An act to abolish curtesy in this State,” the plaintiff — the husband — had an interest in the mortgaged property upon the death of his wife intestate, and that to protect this interest he had the right to be subrogated to any subsisting lien which he was required to discharge, and had discharged, to protect that interest. He was not a volunteer. Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106, 110 Am. St. Reps. 827; Spurlock v. Spurlock, 80 Ark. 37, 96 S. W. 753; Jefferson v. Edrington, 53 Ark. 545, 14 S. W. 903; McDaniel v. Conlan, 134 Ark. 519, 204 S. W. 850.

It is the law, however, as is very clearly stated in Charmley v. Charmley, supra, that the right acquired by the party thus subrogated is to use the security just as the original holder thereof might have done, and that “the devolution of such cause of action does not interrupt the running of the statute. Upon the termination of the full statutory period measuring the life thereof, it is destroyed. (Citing many authorities.) To enable a person to see what interest one .has in the property of another by the right of subrogation, he must look at the matter from the viewpoint of the original owner before the devolution.” The case of Brown v. Nelms, 86 Ark. 368, 112 S. W. 373, is to the same effect.

The mortgage being barred by the statute of limitations when the husband furnished the money to pay the note it secured, the lien thereof was not extended, nor was it acquired by subrogation. The lien had been extinguished before the payment was made. The money paid the payee in the note was not a payment on the note, but was a payment of the note, which was then an un-enforcible obligation. This payment did not revive the note, nor extend the lien securing it. The husband — the appellee here — acquired therefore no right which he could enforce under this mortgage.

It is to be borne in mind that this proceeding is not one to enforce the husband’s rights under the act of 1925, supra. Nor is it one to probate a demand against the estate of the deceased wife. We need not therefore consider whether it was barred as such demand. The suit is one to enforce, by subrogation, a mortgage securing a note, both of which instruments were assigned to the plaintiff, and the question presented is disposed of by holding, as we do hold, that, the note being barred when it was paid, no right of subrogation was acquired by the payment.

The decree of the court below will therefore be reversed, and the cause will be remanded, with directions to dismiss the complaint as being without equity.


author: Humphreys, J.

text:
    Dillard v. Wilson.
    4-2739
    Opinion delivered November 21, 1932.

      Feasel i& Steel, for appellant.

      Garrigan $ Monroe, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellee in the circuit court of Hempstead County to recover $472.74 for supplies furnished to her tenants, J. L. Rogers and Wyatt Rogers, during the year 1930, on written order of appellee addressed to appellant. The order was in the form of a letter, and is as follows:

“Mr. Dillard: Luther and Wyatt Rogers are renting land from me. I bought pair of mules, wagon, &c, for them to work; of course, I have mortgage on a team and also on crop. They say you furnished them last year and would like to trade with you this year. I have tried to see you so we could talk this matter over, but weather prevents. So yon talk with them; let them have what they need. I am willing to do what yon require, that is, in a reasonable way. Their note for mules &c is $240 with int. Mr. Wilson is to sell their cotton. I will gladly collect your acet. You can call me if I have not made myself clear. I will hack them up in their trade.

(Signed) “Mrs. David Wilson.”

Appellee filed an answer interposing the defense that appellant furnished unreasonable and excessive amounts of supplies.

The cause was submitted upon the pleadings, testimony adduced by the parties, and instructions of the court, resulting in a verdict and judgment in the sum of $250 against appellee, from which is this appeal.

During the progress of the trial, and over the objection and exception of appellant, the court admitted the testimony of E. E. Hughes, S. H. Bryant and Ralph Rou-ten, to the effect that it was the custom of the trade amongst merchants in this locality to limit the amounts furnished tenants from $100 to $150, situated as appel-lee’s tenants were. The court construed the written order as authorizing appellant to furnish appellee’s tenants only such amounts as were customarily furnished by other merchants to tenants similarly situated, and, over the objection and exception of appellant, instructed the jury that, if it found appellant furnished appellee’s tenants unreasonable and excessive amounts, it should deduct this excess from appellant’s claim.

There is no dispute in the testimony as to the amount and value of the supplies actually furnished by appellant to said tenants.

A reversal of the judgment is sought upon the ground that the court misconstrued the order and erroneously admitted evidence contradicting the terms thereof. It is argued that, under the express terms of the order, appellant was authorized to furnish appellee’s tenants with supplies in unlimited amounts provided no collusion was shown to exist between appellant and the tenants to furnish and receive unreasonable amounts.

Our construction of the order is that it authorized appellant to furnish only such supplies as were reasonably needed by the tenants to pitch and cultivate a one-team crop. Under this interpretation of the order, the court properly admitted testimony as to the customary needs of the tenants, and correctly instructed the jury.

No error appearing, the judgment is affirmed.


author: Mehaeey, J.

text:
    Buckeye Cotton Oil Company v. Westerfield
    4-2722
    Opinion delivered November 21, 1932.

      Gockrill & Armistead, for appellant.

      Clark & Clark and George A. McConnell, for appellees.
   Mehaeey, J.

Sometime prior to July 5, 1927, C. W. Jones entered into a contract with the Continental Grin Company for the purchase of the gin machinery involved in this suit. The machinery was delivered at Conway on July 5,1927. The agreement was that one-third of the purchase price was to be paid cash, but when the property was delivered Jones was unable to make the cash payment, and the Continental Grin Company took the note of Jones and Eula H. Jones, his wife, in the sum of $2,317, due September 1,1927, secured by mortgage dated July 5, 1927, on one acre of ground on which the gin was located, and also on the machinery purchased by Jones. On the same date Jones and Ms wife executed two promissory notes in the amount of $1,158 each to the Continental G-in Company, one note due November 1, 1928, and one due December 1,1928. By the terms of the notes, title to the gin machinery was to remain in the Continental Gin Company until the notes were paid. On February 27,

1928, Jones and wife executed two promissory notes to J. S. Westerfield, one note for $500 due August 1, 1929, and one note for $3,500 due February 27, 1930. Wester-field did not at the time advance to J ones the $4,000, but advanced $1,816,69, and the balance of the $4,000 was a debt from Jones to Westerfield secured by mortgage on Jones ’ home. To secure the payment of this $4,000, Jones executed a mortgage on the same property, the one acre of ground and gin machinery, which was described in the mortgage to the Continental Gin Company. This mortgage executed on February 27 was recorded on March 1 1929. Of the cash advanced by Westerfield at the time Jones executed the notes and mortgage, $579.85 was paid to the Continental Gin Company in satisfaction of its note and mortgage executed by Jones and his wife. Qn February 3, 1930, the Buckeye Cotton Oil Company purchased from the Continental Gin Company the two title-retaining notes of Jones and wife, and paid therefor the sum of $2,299.89, the amount of principal and interest due, and the Buckeye Cotton Oil Company took an assignment of the notes without recourse, and on the same day, February 3, 1930, the Buckeye Cotton Oil Company loaned to Jones and wife the sum of $3,000 and took three notes of $1,000 each. The Buckeye Cotton Oil Company did not actually let Jones have the $3,000, but the notes which it had purchased from the Continental Gin Company, which Jones owed, together with the cash which it let Jones have at that time, amounted to $3,000. The three promissory notes given by Jones and wife to the Buckeye Cotton Oil Company, above mentioned, for $1,000 each were due November 1, 1930, November 1, 1931, and November 1, 1932. On the same day, February 3, 1930, Jones and wife, to secure the payment of the three notes, executed and delivered to the Buckeye Cotton Oil Company a mortgage on the same real estate and gin machinery mentioned above. This mortgage was recorded on April 4, 1930.

Suit was begun in the Faulkner Chancery Court by the Arkansas Foundry Company to enforce a material-man’s lien. The appellee, Westerfield, filed answer and cross-complaint, in which he claimed a first lien on the real property and gin machinery in question, and asked that the Buckeye Cotton Oil Company be made a party. The Buckeye Cotton Oil Company filed its answer and cross-complaint, setting up its notes and mortgage and asking that its lien be 'adjudged superior and paramount to the rights of the other parties. It also asked in its cross-complaint that, if the court found that the Continental Grin Company had waived the title-retaining provisions of its notes, the Buckeye Cotton Oil Company have judgment against the Continental Grin Company for the amount due on the notes purchased from the Continental Gin Company. Westerfield contended that his mortgage was superior and paramount to any claim of any of the other parties to the suit. The Buckeye Cotton Oil Company contended that its lien was superior and paramount to the interest of any of the parties to the suit. The Buckeye Cotton Oil Company contended that by reason of the purchase of the title-retaining notes from the Continental Gin Company its rights under these notes was superior to the claim of Westerfield. It also claimed that if the title-retaining provisions in the notes had been waived by the Continental Gin Company it was entitled to a judgment against the Continental Gin Company.

Westerfield testified that, when he took the notes and mortgage from Jones and paid the balance due on the mortgage to the Continental Gin Company, he was informed by the representative of the gin company that the amount he paid it paid the entire debt, and that, unless he had so understood it from the gin .company, he would not have loaned the money and taken the notes and mortgage.

W. C. McGinley, representative of the Continental Gin Company, testified that he told Westerfield that that paid the mortgage, hut that there were title retaining notes held by it which were given for the purchase price of the machinery. This testimony is contradicted by Westerfield.

W. F. Bradford, representative of the Buckeye Cotton Oil Company, testified about the purchase of the title-retaining notes from the Continental Gin Company, and introduced the notes and letter. The evidence was in •conflict, and the chancellor found that Jones and wife were indebted to Westerfield in the sum of $4,440, for which he should have judgment, and that this sum should bear interest at the rate of 6 per cent, per annum until paid. That Westerfield’s debt was secured by mortgage on the real estate and gin machinery, and that his lien was superior to any right, title, interest or lien of any other parties to the suit. The court also found that Jones and wife were indebted to the Buckeye Cotton Oil Company in the sum of $3,387.50, and that Jones was further indebted to the Buckeye Cotton Oil Company in the sum of $327.69, and that these amounts should bear interest at 6 per cent, per annum until paid. The court further found that the indebtedness due the Buckeye Cotton Oil Company was secured by a mortgage executed by Jones and wife dated February 3, 1930, and that this mortgage constituted a lien against the property above mentioned, and that this lien was subordinate to the lien of Wester-field, but superior to any right, title, interest or lien of the other parties to the suit. The court also found that the indebtedness due Westerfield and the Buckeye Cotton Oil Company was past due, and that each was entitled to a decree for the amounts above mentioned, and also found that the Buckeye Cotton Oil Company had no cause of action against the Continental Gin Company. There was a decree and judgment for the amounts above mentioned, and for the foreclosure of the mortgage and for sale of the property if the amounts were not paid. It was provided in the decree that the commissioner should first pay the cost and expense of sale and costs of suit and then pay Westerfield the amount of his decree with interest; that he should then pay to the Buckeye Cotton Oil Company the amount of its decree with interest; that the remainder, if any, should he held subject to the orders of the court. It was also ordered and decreed that the cross-complaint of the Buckeye Cotton Oil Company be dismissed as to the Continental Grin Company.

It is 'contended by appellant that the Continental Grin Company did not waive title. It cites and relies on Jordan v. Wilkerson & Carroll Cotton Co., 152 Ark. 533, 238 S. W. 780. In that case the court said: “Immediately after sale, and in ignorance of the fact that the purchaser had executed a mortgage, the seller took a mortgage to secure the purchase money. The first mortgage was given by the seller at a time when the vendor had title, and the court said that the first mortgagee was not misled to its disadvantage, and that it was manifest that appellant would not have accepted the mortgage in lieu of the retention of its title if it had actually known that its vendee had theretofore executed a mortgage to appellee.” The court stated that under the circumstances in that case appellant, in good .conscience and equity, should have been restored its rig-hts under the note and contract in which it retained title. The court said: £ ‘ This equitable principle was applied by this court in the restoration of a senior mortgagee’s prior lien, where the senior mortgagee through ignorance of an intervening mortgage to a third party had taken a renewal mortgage and satisfied the first or original mortgage of record. ’ ’ The court cites as announcing the same doctrine, Wooster v. Cavender, 54 Ark. 153, 15 S. W. 192, and Shurn v. Wilkinson, 131 Ark. 167, 198 S. W. 279.

The question we have here was not decided or discussed in either of those cases. In the Wooster case, Judge Hemikgway, speaking for the court, said: “As ■ the appellees acted in good faith and without culpable neglect under a mistake as to a material fact, it is within the ordinary powers of a court of equity to grant them relief, provided it can be done without working hardship or injustice to innocent parties. In the Shurn case, supra, the court reaffirmed the doctrine announced in the case of Wooster v. Wilkerson. None of these cases in any way modify or change the rule announced in the case of Thorton v. Findley, 97 Ark. 432, 134 S. W. 627. This court said in the last-mentioned case: “And, as a general rule, if the vendor takes a mortgage or other security for the price without their reserving title, such act will he regarded as a waiver of the condition of the original sale and an election to consider the sale as absolute.” There is nothing in the mortgage -to the Continental Gin Company reserving- title. When the Continental Gin Company took a mortgage on the machinery without reserving title, such act was a waiver of the title-retaining provision in the note. There is some conflict of authority as to the effect of taking a mortgage to secure the payment of the purchase price of property where the vendor has retained title. Taking a mortgage to secure the payment is inconsistent with ownership in the vendor. If the title remains in the seller and he takes a mortgage, he would be taking a mortgage on his own property. This being true, it is immaterial whether the vendor takes a mortgage on the property sold for all or only a part of his debt, because the taking of the mortgage is a recognition of title in the purchaser and is a waiver of the title-retaining provision of the note. Again, when West-erfield took his mortgage, he testified that he paid the Continental Gin Company $579.85, and was told that that settled the debt. This evidence is contradicted by the witness for the gin company, but he testified that he would not have paid the money to the gin company if he had known it claimed title to the property. Moreover, the gin company accepted the money and knew at the time that Westerfield was lending the money to Jones and taking a mortgage on the property as security. It is next contended that the Buckeye Cotton Oil Company did not waive title. What we have said above as to the mortgage given to the Continental Gin Company applies here. In addition to what we have said, the Buckeye Cotton Oil Company purchased the notes from the Continental Grin Company, and the notes were transferred without recourse. In addition to the amount of the note purchased from the Continental Grin Company, the Buckeye Cotton Oil Company advanced Jones enough money to make the loan $3,000. For this amount it took from Jones three notes for $1,000 each, and at the same time took a mortgage on the gin machinery to secure the payment of these three notes. There was no provision either in the notes or mortgages reserving title. This was inconsistent with a 'claim of title in itself. It took these notes and mortgage after Westerfield’s mortgage and with a knowledge of the Westerfield prior mortgage on the same property. It would make no difference whether the Continental Grin Company had waived the title retained in the notes or not. The Buckeye Cotton Oil Company waived its rights and, since the transfer of the debt was without recourse, it would have no claim against the Continental Gin Company. The Buckeye Cotton Oil Company knew when it purchased the debt that Jones had given a mortgage to the Continental Gin Company on the property, and, if this was a waiver, the Buckeye Cotton Oil Company knew as much about it as the Continental Gin Company.

We find no error, and the decree is affirmed.


text:
    Squire v. Squire.
    4-2743
    Opinion delivered November 21, 1932.

      E. F. Friedell, for appellant.
   McHaNey, J.

This is an action for divorce and custody of an infant child brought by appellant against ap-pellee under our “ninety-day divorce law,” commonly so-called, same being act 71, Acts of 1981, p. 201. This act amends § 3505, Crawford & Moses’ Digest, and, among other things, provides that the plaintiff must prove, but need not allege, “a residence in the State for three months next before the final judgment granting a divorce in the action, and a residence for two months next before the commencement of the action.” Appellant established her residence in Texarkana, Miller County, Arkansas, on November 4,1931. On January 9,1932, she began this action by filing complaint, making affidavit for warning order against appellee, a nonresident, causing same to be published according to law, and having an attorney ad litem appointed, who notified appellee of the pendency of the action and made report thereof. All necessary legal steps to obtain constructive service were taken, and appellee actually appeared and moved to quash the service, at which time he was served with process. On February 12,1932, the cause was tried on the depositions of witnesses theretofore taken and upon oral testimony before the court, with the result that appellant’s complaint was dismissed because the court was of the opinion that it had no jurisdiction of the parties. After reciting the substance of appellant’s testimony in regard to her residence in Texarkana, the decree recites: “From the above testimony it is perfectly apparent that the plaintiff had no permanent intention on November 4, 1931, (the date she moved to Texarkana) and has no permanent intention at this time of making Arkansas her permanent home.”

We think the learned trial court misconstrued the effect of act 71, supra. It does not provide that the plaintiff must, at the time of becoming a resident of this State, or at the time of trial, have a “permanent intention * # * of making Arkansas her permanent home.” All that is required in this respect is that proof must be made of a residence in this State of two months before suit is brought, and of three months before final judgment. The statute makes no mention of a permanent intention of making Arkansas a permanent home. Under the old statute, § 3505, Crawford & Moses’ Digest, it was necessary to allege and prove, in' addition to a legal cause of divorce, a residence in this State for one year next before •commencement of the action. Under this statute this court held in Wood v. Wood, 54 Ark. 172, 15 S. W. 459, that actual and not constructive residence was contemplated. See also Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498, and Wood v. Wood, 140 Ark. 361, 215 S. W. 681. But it has never been held that the plaintiff must have had a permanent intention to make this State a permanent residence. We have held that absence from-the State for a few months on a visit, being temporary, did not interfere with the residence once established. Wood v. Wood, 140 Ark. 361, 215 S. W. 681. The law of divorce is purely statutory, and the General Assembly has enacted the statute under consideration. Whether it be good or bad is not a question for the courts.

In this case the undisputed proof is that appellant had been a resident of the State for more than three months before the trial. The statute relative to jurisdiction had been literally complied with, and the court was of the opinion that the evidence was sufficient to establish a cause of divorce. She frankly admitted that she came to this State to obtain a divorce; that she would remain here if she could secure employment to support herself and child. Even though she moved to this State to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction, if she were actually and in good faith a bona fide resident for the period prescribed by the statute.

The decree will therefore be reversed, and the canse remanded, with directions to grant a divorce and the custody of the child to appellant.


text:
    Temple Cotton Oil Company v. Holliday.
    4-2744
    Opinion delivered November 21, 1932.

      McMillan «£ McMillan, Bmbee, Pugh«& Harrison and Jones & Jones, for appellant.
    J. H. Lookadoo and Bush ■& Bush, for appellee.
   McHaNey, J.

Appellee recovered judgment against the appellant in the Clark Circuit Court for damages in the sum of $30,000 for injury and death of Oliver D. Hol-liday, while he was employed by the appellant in its oil mill in Arkadelphia, alleged to have been caused by the negligence of appellant, its servants and employees. The Temple Cotton Oil Company prosecuted an appeal to this court, and the judgment of the Clark Circuit Court was affirmed. On motion for rehearing, this court reduced the judgment to $17,500. After the adjournment of the term of the Clark Circuit Court, and after the judgment had been affirmed in this court as modified, appellant filed in the circuit court of Clark County its motion for a new trial, on the ground of newly-discovered evidence. The motion for new trial on the ground of newly-discovered evidence alleged the trial of the case in the circuit court, the verdict and judgment, and the affirmance by this court on January 18, 1932. It was alleged that Oliver Knapp was the witness in the original trial who testified as to any negligence and as to Holliday’s injuries. Knapp had testified that he was present when the negro, Phillips, and the deceased, Holliday, were at the linters. Appellant sets out at length the testimony of Knapp in the trial in the circuit court, and alleges that it has discovered evidence which was unknown to it and not available before the time of trial nor at any time prior to the January term, 1932, and that it could not have been discovered by the exercise of reasonable diligence until after the adjournment of the term of the Clark Circuit Court at which the case was tried; that the newly-discovered evidence was material in the trial of said cause. The petition then sets forth in substance the newly-discovered evidence and the names of the witnesses. It alleged that these witnesses would testify that Knapp made admissions going to show and showing that he was not present when Holliday received his injuries, and that all of said admissions except those made to Saurie and Keisler were made after the case had been tried, and that they therefore did not exist at the time of the trial; that the admissions made to Saurie and Keisler were made shortly after the accident, but were not disclosed to petitioner until after January, 1932. Affidavits were filed in support of the petition for a new trial. It was also alleged in the petition that its counsel and manager exercised all reasonable diligence to ascertain and produce the testimony of witnesses to sustain the defenses of petitioner; that at the time of the accident petitioner had many employees engaged in the operation of the Arkadelphia mill, and the evidence of none of them was known or disclosed to the petitioner or its attorneys or employees until after the case had been tried and after January, 1932, and after .iudgment had been affirmed by this court. It alleged that none of said witnesses were present or participated in the trial or bad any connection whatever with the trial, or knew anything of the testimony of Knapp until they heard the matter ’discussed after judgment. It also alleged that, if the newly-discovered evidence had been available upon the hearing of the original motion for new trial, it is probable that the circuit judge would have granted the motion. But that it was not available and could not have been discovered and produced at the hearing of said motion with reasonable diligence. Petitioner thereafter filed an amendment to its petition and attached certain affidavits, and alleged that this newly-discovered evidence had come to the knowledge of the petitioner since filing its original petition. Still later petitioner filed a second amendment and offered to prove by other witnesses that Knapp was not present when Holliday was injured. A response was filed'to the petition to which was annexed certain affidavits. There was a specific denial of all the material allegations in the motion. The response also stated that the newly-discovered evidence could only be cumulative, and that it was for the sole purpose of impeaching Knapp and discrediting his testimony. The response also alleged that the petition did not comply with the law which provides that the party asking for a new trial for newly-discovered evidence should not only state in his motion that he did not know of the existence of his testimony, but also should show facts' from which it will appear that he could not have ascertained or obtained such evidence by reasonable diligence, and that neither the petition nor affidavits show any diligence. The response also alleged that the appellant was duly notified that Knapp was present and would testify, and the servants of the company tried to procure from Knapp a written statement before the trial with a full knowledge that he would be a witness; that it knew this five months before the trial. Numbers of the witnesses who testified for the petitioner were at the time of the injury, and still are, employees of the company. The petitioner filed a reply to the response, denying the allegations. A number of witnesses testified, some of tfiem to statements made by Knapp, and others that Knapp was not present at the time of the accident. A number of witnesses were also introduced by appellee, and they contradicted the witnesses of appellant. It would serve no useful purpose and would make this opinion entirely too long to set forth the evidence.

Appellant introduced several witnesses who testified in support of its motion for new trial on the ground of newly-discovered evidence. The appellee also introduced several witnesses who testified, and the evidence is in irreconcilable conflict.

The trial court found, first, that the appellant had failed to exercise reasonable diligence to procure the newly-discovered evidence; second that the evidence set out in appellant’s motion and introduced on the trial of said motion was merely cumulative; and, third, that the newly-discovered evidence would not probably have changed the result.

We find it necessary to consider only the first finding- of the trial court; that the appellant failed to exercise reasonable diligence to procure the newly-discovered evidence. Practically all the evidence upon which appellant bases its right to a new trial is to the effect that Oliver Knapp, who had testified at the trial that he was present when Holliday was injured and testified as to the accident and injury, was not present, and that Knapp had made certain admissions since the trial. A number of witnesses testified that Knapp was not present, and that he had made the admissions since the trial. Knapp himself, and a number of other witnesses, testified that he was present, and the evidence that he had made certain admissions was contradicted. In addition to this, appellant says in its brief in this case that the original complaint which was filed by appellee on October 9, 1930, alleged that “deceased, Holliday, and Oliver Knapp went downstairs and returned to the linter room; that the machinery was not in operation when they left, but was when they returned. ’ ’ The case was not tried until March 2, 1931, nearly five months after the complaint was filed. On March 2, 1931, when the case was tried, Knapp testified to statements in the complaint that they went downstairs and came back, and the machinery was not running when they went downstairs and was running when they came hack np; and he also testified that Mr. Thompson, the superintendent, was upstairs part of the time. Mr. Thompson was present at the trial and testified, but did not contradict Knapp. Mr. Thompson was called as a witness twice on the trial of the motion for new trial, but he never contradicted this testimony of Knapp at any time. Appellant therefore knew when the complaint was filed that Knapp was a witness, and knew, according to its own statement from the statements in the complaint, something of what Knapp would testify. In addition to this, the record shows that the trial was on March 2,1931, and appellant was given until March 23, 1931, to file its motion for new trial. It appears therefore that, by the exercise of any diligence at all, appellant could have discovered the evidence that it produced at the trial of the motion. Appellant says that it tried to get a statement from Knapp as to what his testimony would be, but that Knapp refused to give a statement. This certainly should not have caused appellant to be less diligent in the preparation of its case and the ascertainment of the facts.

Appellant cites numerous cases in support of its contention, but the question has been decided many times by this court. “It has been well settled by this court that applications for new trial on the ground of newly-discovered evidence are to be received with caution, and are to be left largely within the sound legal discretion of the trial court. Unless such discretion has been manifestly abused, the appellate court will not disturb the action of the trial court. An application on account of newly-discovered evidence should be corroborated by the affidavits of other persons than the accused, and, if it can be done, by. those of the newly-discovered witnesses themselves. It is not sufficient that the applicant should state that he did not know of the existence of the testimony in time to have brought it forward at the trial, but it is necessary that be should show facts from which it must appear that he could not have ascertained or obtained such newly-discovered testimony by reasonable diligence. ’’ Rynes v. State, 99 Ark. 121, 137 S. W. 800 ; Freo Valley R. R. Co. v. Rowland, 164 Ark. 613, 262 S. W. 660; Little v. State, 161 Ark. 245, 255 S. W. 892; Northwest Ark. F. M. T. Ins. Co. v. Osborn, 180 Ark. 757, 22 S. W. (2d) 387; Conner v. Bowers, 184 Ark. 102, 41 S. W. (2d) 977; Kearns v. Steinkamp, 184 Ark. 1177, 45 S. W. (2d) 519; Forsgren v. Massey, 185 Ark. 90, 46 S. W. (2d) 20; State use, Calhoun County v. Poole, 185 Ark. 370, 47 S. W. (2d) 590; Citrus Products Co., Inc., v. Tankersley, 185 Ark. 965, 50 S. W. (2d) 582.

It is the well-settled rule of this court that a new trial on the ground of newly-discovered evidence will not be granted unless the applicant has shown reasonable diligence. Whether he has shown diligence is.a question in the sound legal discretion of the trial court, and, unless there is manifestly an abuse of discretion, the finding’ of the trial court will not be disturbed. There was no abuse of discretion in this case, and the judgment is affirmed.


author: Humphreys, .J.

text:
    Missouri State Life Insurance Company v. Johnson.
    4-2591
    Opinion delivered November 14, 1932.

      Allen May, W. II. Glover and Bose, Hemingivay Cantrell .& Loughborough, for appellant.

      John L. McClellan, 8am T. Poe and Tom Poe, for appellee.
   Humphreys, .J.

Appellee instituted suit against appellant in the circuit court of Hot Spring County to recover $2,000 for permanent injuries received by bim in an automobile accident on a certificate of insurance issued to bim by appellant under group policy G--2377, issued by appellant to tbe Missouri Pacific Railroad Company, protecting its employees from total disability on account of bodily injury or disease; and to recover $1,000 for tbe loss of an eye in tbe same accident on a certificate of insurance issued to bim by appellant under group policy ADD-501, issued by appellant to tbe same railroad company, protecting its employees against accidental injuries. Appellee alleged that be was totally and permanently injured in an automobile accident on tbe 8th day of March, 1930, before be attained tbe age of sixty years, and, as a result of tbe accident, also lost tbe sight of his right eye, and prayed for judgment in tbe sum of $3,000 and costs, including an. attorney’s fee.

Appellant filed a motion to transfer tbe cause to the United States District Court for tbe Eastern District of Arkansas, alleging’ a diversity of citizenship, and that the amount sued for., including an attorney’s fee, exceeded $3,000. This motion- was denied over the objection and exception of appellant.

Appellant, reserving its objection to tbe jurisdiction of tbe cofirt to try the cause, filed an answer denying the "^^^ierfal allegations of the complaint.

The cause was submitted upon the pleadings and testimony, resulting in a judgment for $3,000 and costs, including an allowance of an attorney’s fee in the sum of $550, from which is this appeal.

The group insurance policies were issued and delivered to the Missouri Pacific Railroad Company and remained in its possession in its general office at St. Louis. They were never in the possession of appellee nor subject to his inspection as far as the record reflects. The certificates were the only documents issued to him under the terms of the major policies. The only provision in the certificates as to either notice or proof of loss is as follows:

“Immediately upon receipt of due proof of loss, the company will pay to the employee, in full settlement of all obligations hereunder the amount set opposite such loss:***.”

Only those protected under group policy G--2377 were eligible for protection under group policy ADD-501. Group policy ADD-501 contained the following provision relative to notice and proof of claim:

“Immediate written notice with full particulars and full name and address of insured employee shall be given by the employer to the company of any accident, injury or loss for which claim shall be made under the terms thereof. Affirmative proof of loss, on forms furnished by the company, must be furnished to the company at its home office, St. Louis, Missouri, within ninety days after the date of the loss for which claim is made.”

Group policy G-2377 and the certificate issued under same provide that indemnity benefits of $2,000 shall be payable only if the insured, before attaining the age of sixty years, has become totally and permanently disabled; and group policy ADD-501 and the certificate issued under same provide that an indemnity of $1,000 shall be paid for the loss of one eye resulting from bodily injuries effected through external, violent and accidental means, independently of all other causes, * * *.”

Tbe facts, stated most favorably to appellee, are as follows:

On March 8, 1930, before appellee attained tbe age of sixty years, be was injured in an automobile wreck. As a result of tbe accident, appellee received a severe injury to bis neck and spine and lost tbe sight of bis right eye. After recovering to some extent from tbe injury to bis neck and spine, be returned to bis work on April 28, 1930, and performed tbe light duties connected with tbe character of work be was employed to do with tbe assistance and aid of bis co-laborers until tbe shops closed down in December, 1930. He was unable to do tbe heavy work connected with bis job. He did not realize tbe serious condition .of bis neck and spine until October, 1931, at which time Dr. Law, of Little Rock, made an X-ray picture of tbe injured parts, which revealed that bis neck bones bad been fractured. Tbe picture showed that there was a compression type fracture of tbe bodies of tbe fifth and sixth cervical vertebrae; that tbe sixth cervical vertebra was crushed and tilted; that there was a dislocation of tbe cervical column; that tbe thoracic and dorsal vertebrae were jammed together; that tbe articulation between tbe vertebrae in tbe lower spine were narrowed and tbe bodies of tbe third and fourth dorsal vertebrae tilted; and that ankylosis bad followed as a result of tbe injuries to tbe spine.

According to tbe testimony of a majority of tbe physicians who were witnesses in tbe case, appellee should never have returned to work and bis neck and spine injuries permanently disabled him from performing bard manual labor. His duties required that he perform labor of that character.

Appellant contends for a reversal of tbe judgment upon the gro.und that tbe trial court erred .in denying its petition-for removal of tbe cause to tbe Federal court. It is argued that to include an attorney’s fee in the amount sued for exceeds $3,000, interest and costs, and in amount makes the cause a removable one under tbe Federal Removal statute (28 USCA 41, 71). This court has ruled otherwise in the case of Mutual Life Insurance Company v. Marsh, 185 Ark. 332, 47 S. W. (2d) 585. In the case referred to it was ruled that an attorney’s fee in cases of this nature must he taxed as costs in compliance with the express terms of § 6155 of Crawford & Moses’ Digest.

Appellant also contends for’a reversal of the judgment on the ground that the undisputed testimony reflects that appellee was not totally and permanently disabled. This court has said that total disability as used in contracts of this character exists when the injury of the insured prevents him from doing all the substantial and material acts necessary to be done in the prosecution of his business, and that common care and prudence would require him, in his condition, not to do. Industrial Mutual Insurance Company v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029; Mutual Benefit Health & Accident Association v. Bird, 185 Ark. 445, 47 S. W. (2d) 812. The testimony in the instant case tends to show that appellee should not have attempted to perform his accustomed duties in the due exercise of common care and prudence. The testimony warranted the submission of the issue of total and permanent disability of appellee to the jury.

Appellant also contends for a reversal of the judgment on the ground that appellee failed to notify appellant within a reasonable time of his total and permanent disability and loss of eye resulting from the automobile accident. It is true, as argued, that he did not notify appellant of the accident and consequent injuries for about nineteen months, but he testified that his failure was due to the fact that the major policy requiring that notice be given was not in his possession or subject to his inspection. The requirement for notice and proof of the injuries was not in the certificate delivered to him. When he obtained information that notice was required, he notified appellant. The question as to whether he gave the notice within a reasonable time was a question for the jury and not the court. The facts in this case bring it within the rule announced in the eases of Concordia Fire Insurance Company v. Waterford, 145 Ark. 420, 224 S. W. 953, 13 A. L. R. 1387, and Missouri State Life Insurance Company v. Barron, ante p. 46.

Under onr view of the case, the issue whether the injury received by appellee in the automobile accident resulted in permanent and total disability and the loss of his right eye, and whether he g’ave appellant timely notice, were questions for determination by the jury under proper instructions. We have examined the instructions and find no conflict in them, and that they correctly announced the law applicable to the facts in the case.

No error appearing, the judgment is affirmed.


text:
    Woodmen of Union of America v. Henderson.
    4-2728
    Opinion delivered November 14, 1932.

      J. D. Shacjdeford, for appellant.'

      W. Wilson Sharp, for appellee.
   Kirby, J.

This appeal is from a judgment of the Monroe Circuit Court in favor of appellees upon an insurance benefit certificate in which they were named as beneficiaries.

The appellants filed a general demurrer to the complaint, and later a special demurrer, alleging that the court was without jurisdiction of the defendants or either of them. The demurrers were overruled, and, there being no further pleadings by the defendants, the cause proceeded to trial in the absence of the attorney for appellants, and judgment was rendered for the amount of the policy, costs, etc.

Appellants moved to vacate the judgment because the action was not filed in the proper connty and the court was without jurisdiction over the defendants.

There is no hill of exceptions in the record, and ap-pellees state in their brief that the testimony showed that they were citizens and residents of Monroe County, where the insured died.

It is urged that the court erred both in overruling appellants’ demurrer and in denying their motion to vacate the judgment. The appellants insist that the court erred in overruling the demurrers, and argue that the court was without jurisdiction because the complaint did not allege that the beneficiaries were residents of Monroe County, and that the insured died there. The allegations of the complaint were sufficient without alleging the county of the residence of the insured and where his death occurred; since in fact he was a resident of that county and his death occurred there, and it could and would have been shown upon a motion to make the complaint more definite and certain, or upon an objection to the jurisdiction of the court on that account. The complaint did not show that the decedent, insured, was not a resident of the county and that his death did not occur there (% 6150, Crawford & Moses’ Digest), and the evidence introduced disclosed that he was such resident and died there.

Neither was error committed in overruling the motion to vacate the judgment, since no sufficient cause was alleged therefor, and it contained none of the grounds prescribed by the statute for such vacation, nor was any defense to the cause of action alleged therein.

The presumptions are all in favor of the validity of the judgment, and, as already said, there is no hill of exceptions containing the testimony, and the judgment must he affirmed.

It is so ordered.


author: Mehabty, J.

text:
    Williams v. Mathis.
    4-2730
    Opinion delivered November 14, 1932.

      E. L. Garter, for appellant.

      Isaac McClellan and Wm. J. McClellan, for appellee.
   Mehabty, J.

Appellant brought suit in the Grant Chancery Court on a note for $800, the payment of which was secured by mortgage on certain real estate. The note and mortgage had been executed by William C. Vick-ry and wife, Homie E. Yickry, to the Conservative Loan Company. The note and mortgage were afterwards assigned, and the appellant who brought the suit was the owner at the time of the suit.

In addition to the note for $800 and mortgage securing it, there were other notes given secured by a second mortgage for interest, but there is no controversy about the foreclosure of the second mortgage.

W. A. Mathis filed answer and intervention, alleging that one acre of the land was sold under a mechanics’ lien, and that he became the purchaser.

Paul J. Clark also filed an intervention, alleging that Yickry, after the execution of the note and mortgage sued on, sold the lands to A. L. Hartón; that A. L. Hartón sold these to J. W. Hensley, and that Hensley conveyed the lands to the intervener, Paul J. Clark, and that said in-tervener, Clark, purchased the lands at delinquent tax sale, but the lands had been redeemed. Clark claimed to be the owner by reason of his purchase from Hensley.

The appellants, David Williams and E. L. Carter, filed answer to the interventions, and the case was tried on an agreed statement of facts, and the court entered a decree in favor of E. L. Carter for $41.26 against William C. Yickry and Homie E. Vickry; found that W. S. Mathis held a mechanics’ lien against one acre, which was included in the mortgages; that said lien was for repairs made upon the dwelling house situated on one acre of ground, and that a deed by the commissioner had been executed to W. A. Mathis. The court, however, found and held that Carter, had a second lien on all the lands described in mortgages, except one acre claimed by Mathis, and, as to that one acre, that Carter had a first lien.

The court held also that the mortgage securing the note held by David Williams did not give the date of the maturity, and that there had been no memorandum of credit or of extension entered upon the margin of the record, and that said mortgage was barred by the statute of limitations as to the rights and interests of Mathis to the one acre described in the commissioner’s deed.

The court held that Williams had a prior lien against all the land described in the mortgage except the one acre claimed by Mathis. The court held that the deed to Clark was executed after this suit was begun, and that he was not an innocent purchaser.

There was no appeal from the judgment and decree in favor of Carter, and therefore the only question for our consideration is whether Williams ’ lien was prior to the claims of Mathis and Clark; that is, whether appellant’s claim was barred by the statute of limitations as to the claim of Mathis to the one acre and the claim of Clark under his deed.

The appellee contends that, since the mortgage did not show on its face when it was due, it became due immediately, and that Mathis and Clark had a right to believe, since no memoranda were on the margin of the record, that Williams ’ note and mortgage was, as to them, barred by the statute of limitations.

They contend that, since this mortgage was made in 1920 to secure the payment of a- note mentioned in the mortgage, and since the mortgage did not give the date of the note, the statute of limitations began to run at once, and was barred when this suit was begun.

We do not agree with the appellees in this contention. Where a mortgage is conditioned for the payment of a certain sum with interest, according to the tenor and effect of the note, to secure which the mortgage was given, and the note provides for the payment of interest annually, as shown by the interest coupons of this $800 note,, the terms of such note are imported into the mortgage, and the note and mortgage are to be read and construed as one instrument.

The mortgage provides: “The foregoing conveyance is on condition that whereas the said grantors are justly indebted to the said Conservative Loan Company in the sum of eight hundred dollars for borrowed money, evidenced by certain promissory note of even date herewith executed by the mortgagors to the mortgagee herein, with interest thereon at 10 per cent, per annum, the interest from date until maturity being evidenced by coupons attached to said note (or in partial payment prior to maturity, in accordance with the stipulation of said note). “Now if, the said grantors shall pay or cause the said note to be paid, with interest, according to the tenor and effect thereof, then this instrument to be null and void; otherwise to be and remain in full force and effect.”

There are numerous other provisions in the mortgage, but what we have quoted above is sufficient to show that the note was described, and it also clearly appears that the note was not due immediately, for it is expressly provided that the interest from date until maturity is evidenced by coupons attached to said note.

How could any one assume that the note matured immediately when the mortgage shows on its face that the interest to maturity was evidenced by coupons attached to the note!

If no such provision was in the mortgage, a person desiring to purchase the land would know, at least he would be put on inquiry, as to when the note matured, because, as we have already said, the note and mortgage are to be construed together as one instrument, and the statement in the note as to when it becomes due is imported into the mortgage. 41 C. J. 452; Scheibe v. Kennedy, 64 Wis. 564, 25 N. W. 646.

Where a mortgage contains no express promise of interest and specifies no time of payment, it has been held that it is a mortgage due presently, or as soon as given. There are many authorities holding this, but no authority has been called to our attention holding that, where a mortgage describes a note, shows not only that it bears interest, but that interest coupons are attached to the note, such note is payable presently. The great weight of authority seems to be that, where the mortgage describes the note as bearing interest, and gives the amount, the note and mortgage must be construed together as one instrument.

Not only is this position supported by the weight of authority, but this court has approved this doctrine. It was said:

“The $6,000 note was sufficiently identified in the mortgage. The date and amount were given, together with the interest it bore. The only requirement is that the description be sufficient to put interested parties upon inquiry,' which, when followed up, will inform them of the extent of the incumbrance. ’ ’ Bank of Dyer v. Cole, 157 Ark. 583, 249 S. W. 32.

We therefore hold that the interveners were not innocent purchasers. The provisions in the mortgage were sufficient to put them upon inquiry and it was their duty to ascertain when the note matured.

The evidence conclusively shows that' the note was not due until 1930, and it would not have been barred until five years after that time: No payments had ever been made on it, except the interest had been paid up to 1929, and no extension of time had ever been agreed to. There was therefore no payment made on the note, and no extension of time, and the statutes providing for memorandums on the margin of the record, have no application.

It follows from what we have said that the decree on appeal must be reversed, and, on cross-appeal, affirmed.

The decree of the chancery court is reversed, and the cause is remanded with directions to enter a decree foreclosing the mortgage of appellant, and in accordance with this opinion.


text:
    Washa v. Prairie County.
    4-2746
    Opinion delivered November 21, 1932.

      George W. Craig and W. Wilson Sharp, for appellant.
    J, F. Holtzendorff, for appellee.
   Smith, J.

Appellant brought this suit by filing a claim in the county court of Prairie County against that county for the value of .certain land which the county had condemned for the construction of a part of State highway No. 70 along a changed route. The county court disallowed the claim, and there was a verdict adverse to the claimant upon an appeal to the circuit court, and a trial there before a jury.

The taking of the land is admitted, and it was established by undisputed evidence that the land taken had a market value. It is therefore insisted that the judgment from which this appeal comes must be reversed, inasmuch as the jury allowed the claimant no damages for his land.

It is true, of course, as appellant insists, that private property cannot be taken, appropriated or damaged for public use without just compensation therefor. Section 22 of article 2 of the Constitution so provides. It is true also that, before the owner can be said to have been compensated by benefits derived from the appropriation of his property, such benefits must be, not those enjoyed by the public generally, but must be special benefits accruing to the particular owner of the land from which a part had been taken. Ross v. State Highway Commission, 184 Ark. 610, 43 S. W. (2d) 75; Ross v. Clark County, 185 Ark. 1, 45 S. W. (2d) 31.

But it is also the law that, “where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole before the taking, the owner in such case has received just compensation in benefits.” Cate v. Crawford County, 176 Ark. 873, 4 S. W. (2d) 516. See also Paragould v. Milner, 114 Ark. 334, 170 S. W. 78; Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62.

The testimony on the part of the county was to the effect that highway No. 70 was one of the principal roads in the State, and was a part of the interstate highway known as the “Broadway of America,” and that the route of this highway had been changed to run through the town of Hazen and the land of appellant adjacent thereto, thus giving appellant a frontage along this highway, and that the result of this relocation of the highway was to make the portion of appellant’s land which remained of greater value than the whole thereof would be without the road.

The case was submitted under correct instructions. defining the elements of damage which the landowner had the right to have the jury consider, but an instruction given at the instance of the county told the jury that these damages might be compensated by the enhancement of the value of the portion of the land not taken, and that, if this enhancement was equal to or greater than the damages sustained, the claimant had received compensation and could recover nothing in addition.

The testimony warranted the submission of this issue, and sustains the verdict of the jury. The judgment must therefore be affirmed, and it is so ordered.


author: Kirby, J.,

text:
    Pine Bluff Iron Works v. Arkansas Foundry Company.
    4-2740
    Opinion delivered November 21, 1932.

      Hooker & Hooker, for appellant.

      Barber & Henry and Troy W. Lewis, for appellee.
   Kirby, J.,

(after stating the facts). The case was tried by the court without the intervention of a jury, and without any special findings of facts requested or made or separate conclusions of law stated.

It is insisted that the court erred in treating the complaint as amended to conform to the proof, and that there is not sufficient evidence to support the judgment.

The suit was brought upon the theory of the sale of the materials by the appellee company directly to the appellant company, and the failure to pay the balance due therefor, and apparently decided upon the theory that appellant was the agent only of an undisclosed principal in making the sale of the materials to the Construction Company and in collecting and remitting the money due therefor, the complaint being amended, after the introduction of the proof without objection, to conform and correspond thereto.

If appellant was only the agent, as he claims to have been, in the sale and delivery of the materials to the contractor, he evidently regarded himself bound to the collection and remittance of the money due and received for the materials, and deposited the contractor’s drafts and check paid therefor in his own bank to the credit of his checking account, sending’ the amount due appellee company by his own check after taldng out his commission, etc.

He received the check from the construction company for the balance due the Arkansas Foundry Company, together with the amount due him and his ¡company, deposited it to his own credit in his hank, and sent his own check for the balance due for the materials furnished by the appellee company. This check was put in the hank here, forwarded to the bank at Pine Bluff for collection, and charged against appellant’s account, but the bank failed and was taken over by the Bank Commissioner, who afterwards reversed the charge on the bank’s books against appellant’s account and returned the check unpaid. Appellant made out his claim for all his account in the failed bank, including the $600 not paid out on this •check, which was returned to the payee and afterwards demanded by appellant company, and paid out of the two dividends received on the amount from the failed bank, $120, to appellee company for credit on its account.

Appellant need not have been considered a guarantor of the collection of the account and sale price of the materials delivered by him to the contractor, but, according to his own understanding, he was authorized to collect for the materials, and could, not, of course, accept other than money in payment therefor. The undisputed testimony shows that he deposited the money received for the materials in his own bank to his credit without anything to indicate that he received it on account of or for his principal, or anything to indicate that it was not his own money, and, having so deposited it, he became liable for the loss of it through the bank failure. Of course, if he had deposited it to his principal’s credit or in such a manner as to indicate that it was not to his own personal account, such would not have been the case. Darragh Company v. Goodman, 124 Ark. 532, 187 S. W. 673, 31 Cyc. 1468 (f); see also 2 C. J. 742.

No error was committed by the court in allowing the complaint to be amended to conform to the proof introduced without objection, since no new or different cause of action was stated thereby. Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S. W. 297; Shapleigh Hdw. Co. v. Hamilton, 70 Ark. 319, 68 S. W. 490.

The original suit was on account for goods or ma-. terials sold and delivered to appellant, and the facts showed that the materials were delivered to appellant only as agent and by him sold to the Construction Company without disclosure of his principal and with authority to collect and remit the proceeds of the sale.

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