author: Wood, J.

text:
    Missouri Pacific Railroad Company v. Kirby.
    Opinion delivered February 20, 1922.
    1. Railroads — defective platform — instruction.—Where, in a personal injury action, plaintiff contended that he was hurt on defendant railroad’s defective platform while delivering cotton for shipment, and there was no evidence that he was hurt on a gin platform, it was error to instruct that defendant was liable if the plaintiff was injured upon the gin platform, both because it was contrary to plaintiff’s contention, and because there was no evidence that plaintiff was injured on the gin platform.
    2. Railroads — custom to use platform — evidence.—The fact that a railroad received freight from one or two shippers on a cotton gin platform adjoining its freight platform does not prove a custom to receive freight thereon.
    Appeal from Cross Circuit Court; B. H. Dudley, Judge;
    reversed.

      Thomas B. Pryor and Daggett & Daggett, for appellant.
    The instruction numbered 6, given by the court, was abstract and misleading. Its-effect was to allow the jury to consider evidence insufficient to support a verdict. Worthen v. Smith, 149 Ark. 278. Proof that the company received cotton at the gin platform at some isolated and remote town is not sufficient to establish a custom. 17 Ark. 428; 58 Id. 125; 137 Id. 137. Evidence sufficient to establish a local custom must be clear and convincing, and show that it had existed long enough to have become generally known. 108 Ark. 437; 105 Id. 518.
    Number 2 requested by appellant was intended to cover the failure of appellee to prove the custom, and to prevent the jury from finding for him, if they found the injury occurred on the gin platform. It was error to refuse this instruction. Proof that the injury occurred on the railroad platform raises no presumption of negligence. 20 R. C. L. § 52; 94 N. W. 64; (Ky.) Ann. Cases, 1915-D, 861. In view of appellee’s positive testimony that the injury occurred on the railroad platform, there being no proof of negligent maintenance, the question of the exercise of reasonable care by the appellant was material; and if there was a defect in the platform which was not apparent, or discoverable by the exercise of ordinary care, the accident was unavoidable, and the appellant was not liable. This principle is recognized, inferentially, in these cases. 89 Ark. 122; 77 Id. 561.

      John W. Brawner and J. F. Gautney, for appellee.
    1. Appellant was required to keep its platform in reasonably safe condition, and it failed to exercise ordinary care in that respect, and injury resulted as a consequence thereof. It is liable to the party injured, if he was on the premises for the purpose of transacting business with the company, and was himself not guilty of contributory negligence. 22 R. C. L. 904; § 150; 100 Ark. 433; 96 Id. 311.

      2. Instruction 6 was justified by the evidence. It was sufficient to establish the fact that appellant used the gin platform for the purpose of receiving- cotton for shipment, and that on this occasion appellee was acting-under the direction the ag-ent in placing the cotton. The obligation to exercise ordinary care extends to premises used by the railroad, though it may not be the owner thereof. 102 Ark.
    It was not necessary for appellee to prove a custom. The railroad company had the right to select a place at which it would receive shipments, — and in this instance exercised it. 16 Am. Rep. 618; 80 Ky. 82.
   Wood, J.

This is an action by the appellee against the appellant for damages for personal injuries. The appellee alleged that on the 19th of November, 1920, he delivered on the cotton platform of appellant in the town of Parkin, Arkansas, one bale of cptton which appellant’s agent received and tagged; that thereafter such agent directed the appellee to move the cotton to another point on the platform, and, while undertaking to move the cotton as directed by the agent, a defective plant in the platform broke and caused the injury to the appellee to his damage in the sum of $1,800, for which he prayed judgment. The appellant, in its answer, denied all the material allegations of the complaint and alleged that, if the appellee was injured, his injury was due to his own negligence.

The appellee testified that on the evening of November 19, 1920, he went to Parkin for the purpose of shipping a bale of cotton. He got a dray to haul it and put it on thQ-railroad platform. He put the tag on the bale of cotton and waited until the ag-ent came. Appellee told the agent that he had a bale of cotton he wanted the agent to get out. The agent said, “All right,” and got up on the platform, and sat down on the bale of cotton, and wrote out the bill of lading. He then said, “You will have to move this bale of cotton. ’ ’ Appellee then called upon two gentlemen who were near to assist him. There was a box car standing on the north end. of the switch at the north end of the platform ready for the cotton to be loaded. It was some sixty feet from where the cotton was to this car, and in rolling it they conld not roll it flat-ways but had to “end it over and over.” In doing so appellee was right behind the 'bale of cotton' and stepped into a hole with his left foot, and that threw the 'bale of cotton back against him. It struck him in the left side, and appellee had been suffering every minute since. The agent did not assist the appellee and the men in moving the bale of cotton. When appellee stepped in the hole and the bale struck him in the side, it fractured some of his ribs and knocked the breath out of him for a minute or more.

Appellee then further describes his injuries, his suffering, and his treatment by his physician, which it is unnecessary to set forth. Appellee was asked the following question: “Q. You say that bale of cotton was on that railroad platform over there?” And answered, “If it wasn’t put on the railroad platform, there never was one.” A plat was exhibited to the appellee, and he described the direction that he and his assistants went over the platform in moving the bale of cotton and the place where he was hurt. He stated that he again examined the platform the first time he went back to Park-in after he was hurt, about ten days after. He had his rule with him and measured the hole and found that it was about 24 inches long and about six inches wide. He was asked, “Was that on the railroad platform?” and answered “Yes, sir.” The agent never gave the appellee any bill of lading until after he got hurt.

On cross-examination the appellee, in answer to questions, stated that the railroad platform and the gin platform formed an “L” in there on the east side. He backed the dray into that “L.” He then stated that the railroad platform ran north and south, and the gin platform ran east from the railroad platform. Appellee further stated that he supposed the railroad platform was 24 feet wide and 65 or 70 feet long. The appellee stated that they couldn’t roll the bale flat-ways because the platform was full of cotton — “had to roll it around and’end it over.” He was asked, “Was there any cotton on the gin platform?” and answered, “Plenty of it.” He stated that there was very little room for the cotton on the platform at the place he unloaded the bale. He again repeated that he knew it was on the railroad platform. He also said that they received cotton over both platforms. He didn’t go around before moving the bale to see whether there were any boards or rotten planks in the platform or not. ' Appellee saw the hole that he fell through on thé day of his injury, but didn’t see it before he fell. It looked like a fresh break when his leg went through it. The appellee was asked if he did not tell Mr. Matheney that he got hurt on the gin platform and answered, “No, sir, nor nobody else.” He was asked if the railroad company maintained the gin platform and answered that he did not know about that, but they used it, and stated also that the gin company used it. He was again asked if he hadn’t stated to Doctor Smith, in describing his injuries, that he got hurt on the gin platform of Head & Beaty and was going to make them pay for it, and answered, “No, sir.”

The claim agent of appellant testified that he was acquainted with the railroad company’s platform at Parkin where the injury is alleged to have occurred; that ho went to that platform a short time' after the alleged injury to examine it. He made a careful examination and stated that it was 22x60 feet. He found that it was comparatively new, and at the time he examined it comparatively full of cotton. It was floored with 2-inch lumber apparently sound. There was absolutely no break in the platform, and no evidence of any recent repairs and none yet. He had pictures made of the railroad company’s platform and of the gin platform. The pictures, after proper identification, were submitted to the jury.

The station agent at Parkin testified that the railroad platform at the time of the alleged injury to the appellee (November 19, 1920) was in good condition. They trucked over it and went over it with tbeir feet, and that it was in good condition. He was asked about the condition of the other platform, and the attorney for the appellee objected to the question. The court overruled the objection^ and the witness then stated that the gin platform was dangerous. It was full of holes— some of them large ones. He further stated that the only place that the railroad company received cotton for shipment was on the railroad platform — that was the invariable rule.

Dr. Smith testified that on the day that the appellee first called on him for treatment he stated that he got hurt on a cotton platform, but did not state which platform it was. On a subsequent day appellee stated to witness that he would have to call on witness again; that he expected to make Head & Beaty pay for it.

The drayman who hauled the bale of cotton for the appellee testified that he did not remember whether he put the bale on the railroad platform or the gin platform. He put it on the easiest place. He was hauling cotton to the depot for shipment. Both the railroad platform and the gin platform were crowded with cotton most of the time. His business brought him in touch with the platform practically every day. The railroad platform was in good condition in November, 1920. He did not see any holes in the railroad platform, and if there had been any he would have seen them. He was also acquainted with the gin platform. There were three or four holes in it.

Another witness at the instance of the appellant testified that he helped the appellee to the doctor’s office on the day he is alleged to have been injured. The appellee stated to this witness that he unloaded his bale of cotton on the railroad platform. About ten days after that the appellee took witness bask to the platform and showed witness where he was hurt. There was a hole about 18 inches long and five or six inches wide. The hole was in the railroad platform (that was the first day of December, 1920). This witness further testified that he thought the appellant received cotton on both platforms. A statement made to the railway claim agent by this witness was identified and introduced,' and in that statement witness stated that the appellee told him he got hurt at the gin platform of Head & Beaty, but as witness understood it the railroad company owned or controlled part of that platform.

A witness who was a merchant testified that he shipped cotton all last fall. He didn’t know whether the appellant had a rule there that they would receive cotton only on the railroad platform. He more than likely shipped cotton from the gin platform. They were tagging it there. The agent does the loading.

The appellant among others asked the court to instruct the jury to the effect that it was the duty of appellant to exercise ordinary care to keep in a reasonably safe condition all portions of its platforms- on which it received freight for shipment; but, before the jury could find for the plaintiff, it must find from a fair preponderance of the evidence that plaintiff was on the premises of the defendant for the purpose of delivering freight for shipment at the time the alleged injury occurred, and that the defect in the platform which caused the injury was apparent to, or by the exercise of ordinary care the defects in the platform could have been discovered by, the defendant. The court refused this prayer, to which the appellant duly excepted.

At the instance of the appellee the court gave among others the following instructions: “No. 6. Even though the injury, if any, received by plaintiff was upon the gin platform, still, if you find from the evidence the defendant company used the gin platform -and received cotton for shipment upon the gin platform and received plaintiff’s cotton there, and if you further find from the evidence that plaintiff was; injured while rolling the bale of cotton, under the directions of defendant’s agent, to another place on said platform, and while in the exercise of dne care upon his part, you will find for the plaintiff. ’ ’

The appellant objected to the giving of the instruction on the specific ground that there was no evidence to show that the defendant received the cotton from the plaintiff on the gin platform, and because, even though there is evidence of the receipt of cotton from others on said platform for the purpose of shipment, such evidence did not 'bind defendant to maintain and keep'the platform in repair for the plaintiff who took his cotton to the railroad platform. The court overruled the abjection, to which ruling appellee duly excepted.

' The jury returned a verdict in favor of the appellee in the sum of $666. Judgment was entered in his favor for that amount, from which is this appeal.

The court erred in giving on its own motion instruction No. 6. It will be observed from the appellee’s own testimony and the testimony adduced in his behalf that he was contending that his injury occurred on what he designated the railroad platform. Appellee, in answer to specific questions intended to elicit from him whether or not his injury occurred on the railroad platform or the gin platform, answered emphatically two or three times that his injury occurred on the railroad platform, and not the gin platform. It was the contention of the appellant in the first place that the appellee was not injured at all, and, if injured, that his injury was caused on the gin platform, and not on the railroad platform; that the appellant did not receive cotton for shipment on the gin platform.

These were the issues sharply drawn by the testimony adduced by the respective parties. Instruction No. 6, given at the instance of the appellee, enabled the appellee at the last moment to shift the issue and to contend that the appellant was liable, even though the appellee received his injury on the gin platform and not on the railroad platform. The court should not have permitted the recovery to be had by the appellee on this theory. It was contrary to his own evidence and contention and was unfair to the appellant. The appellant, as shown by the testimony adduced, by it and its prayers for instructions, was counteracting the theory of the appellee that the injury occurred on the railroad platform; and if it had been advised before the testimony was closed that the appellee was going to shift the issue to the gin platform, it might have desired further evidence, and to direct its proof to the new issue as to whether or not the injury occurred on the gin platform instead of the railroad platform. At least, if the appellant had been advised, in advance of the instruction given, that the appellee intended to insist that the injury occurred on the gin platform, the appellant would have had the right to ask for a postponement or a continuance of the cause to prepare for and meet this issue. Furthermore, the appellant is correct in its contention that the instruction was abstract. There was no testimony to prove that appellant had leased the gin platform for its use in receiving and shipping cotton, and the testimony is not sufficient to show a use by custom that would bind appellant. The fact that appellant received cotton from one or two individuals for shipment from the gin platform would not prove its use of same by custom. Burr v. Sickles, 17 Ark. 428; Jones v. Malvern Lbr. Co., 58 Ark. 125; Beal-Burrow Dry Goods Co. v. Levy, 137 Ark. 137.

Instruction No. 6 given by the trial court was therefore erroneous and prejudicial to the appellant. Appellant made specific objection to the instruction, and the court therefore erred in overruling such objection and in granting appellee’s prayer for this instruction. For rhis error the judgment, must be reversed and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Krow & Neumann v. Bernard.
    Opinion delivered February 20, 1922.
    1. Parent and child — purchase by parent of child’s land.— Where land belonging to minor heirs was sold under a mortgage executed by their mother, from whom they inherited, a purchase of the land by their father within the period of redemption from the purchaser at the foreclosure sale was tantamount to a redemption by the father for the benefit of such minor heirs.
    2. Vendor and purchaser — bonv fidf. purchase1’.--To overcome a plea of innocent purchaser, it was only necessary to show that the purchaser had actual knowledge of defects in his vendor’s title, or had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry, which, if diligently pursued, would lead to such knowledge.
    3. Vendor and purchaser — notice to partner of defect in title.— Where one member of a partnership had knowledge of such facts as would put him on inquiry as to a defect in the title to land, his partner cannot hold his partnership interest therein under the plea that he did not have knowledge of the same facts and circumstances connected with the title which his partner had.
    4. Cancellation of instruments — restoration of consideration.— Where a father redeemed land belonging to his infant children from a mortgage foreclosure by paying the amount of the indebtedness with interest, and sold the land to defendants, the latter are entitled, on the sale being canceled, to recover the amount of the mortgage indebtedness with interest, but not to recover the value of the consideration paid by them for the land, where it is not shown that the children received the same.
    5. Homestead — right to recover — laches.—A suit by heirs to recover their parents’ homestead is not barred by laches where the suit was instituted before the youngest child became of age.
    Appeal from Phillips Chancery Court; A. L. Hutch-ins, Chancellor;
    affirmed.

      Sevens (& Mundt, for appellants.
    1. Fraud will not be presumed. The only thing in relation to the foreclosure sale to Bush that would indicate fraud is the circumstance that he sold to 'Bernard on the same day that he bought the land. But a circumstance negativing the idea of fraud is the fact that appellees waited fourteen years before bringing suit, all persons with, actual knowledge of the transactions having died in the meantime. 135 Ark. 240.
    The fact that a lawyer skilled in examining titles, examined and approved this title only a few months after the forclosure and while all the fasts were easily obtainable, is another circumstance which negatives fraud.
    2. Appellants are innocent purchasers. 135 Ark. 206.
    3. If appellees are to be allowed to recover, appellants should have judgment against them not only for the amount of the mortgage debt assumed by them, and paid, but also for the additional cash consideration and the house and lot given to Bernard for the land. 135 Ark. 206.

      Moore & Vineyard and J. G. Burlce, for appellees.
    1. J. D. Bernard, at the time of the foreclosure sale, was the natural guardian of his minor children, and, under the law, he was not permitted to purchase, either directly or indirectly, at such sale for his own use and benefit. ' The trust relation was not destroyed by virtue of the fact that the sale was made to a third party, and the latter deeded to ¡Bernard. 129 Ark. 149'; 89 Id. 168; 54 Id. 627.
    2. Appellants are not innocent purchasers. The chain of title reflects a state of facts clearly sufficient to put any prudent person upon notice as to the rights of the appellees in the land. 50 Ark. 322-327; 103 Id. 425-429; 118 Id. 192-198; 108 Id. 490; 87 Id. 490; 107 Id. 487; 135 Id. 216; 58 Id. 984; 137 Id. 18; 138 Id. 215.
    Neumann, being a partner with Krow, is chargeable with knowledge of all the facts and circumstances which were known by Krow. 76 G-a. 302; 68 Ala. 380; 124 Ala. 451.
    3. The decree as to the purchase money was right. 38 Ark. 584; 37 N. T. L. 503.
    4. Appellees are not barred by laches. Fitzhugh Lee Bernard was still a minor when suit was brought and Mrs. Guthrie’s right of action did not accrue until the youngest child reached majority. 92 Ark. 143; 53 Id. 400.
   Wood, J.

This suit involves the title to fifty-three acres of land in Phillips County, Arkansas. On the 3rd of March, 1899, Mrs. M. M. Bernard purchased from one Joseph S; Miller the land in controversy. On the 19th of March, 1903, Mrs. M. M. Bernard and her husband, J. D. Bernard, executed and delivered a deed to the land in controversy to C. N. Biscoe, trustee named therein, for the use and benefit of F. F. Kitchens, to secure the payment of $550, evidenced by two promissory notes bearing interest at the rate of 10 per cent, per annum from date until paid. On the 1st of February, 1905, the deed of trust above mentioned was foreclosed by C. N. Biscoe, the trustee named therein, under the power and according to the terms provided in the deed of trust. James B. Bush'purchased the lands at the sale for the sum of $947.50. On the same day Bush and his wife by quitclaim deed conveyed the land to J. D. Bernard for the consideration of $957.50. On the 17th day of August, 1905, Bernard executed a warranty deed conveying the land to S. Krow & Son for the consideration of $973.75.

On the 29th of September, 1903, Mrs. M. M. Bernard died intestate. Surviving her were J. D. Bernard, her husband, and four minor children, to-wit: Percy L., Ora Thelma, Fitzugh Lee and Effie May, who afterward married one Guthrie. Percy L. and Ora Thelma Bernard died in infancy, leaving as their sole heirs at law Fitzhugh Lee Bernard and Effie May Guthrie. At the time of the death of Mrs. M. M. Bernard she and her minor children resided upon the lands in controversy as their homestead. After her death her husband, J. D. Bernard, and the minor children continued to reside upon the lands until the property was sold and conveyed by him to S. Krow & Son.

This action was 'begun in the chancery court of Phillips County by Fitzhugh Lee Bernard, through his next friend, T. W. King, and Mrs. Effie May Bernard Guthrie against Ira Krow and Victor Neumann, a partnership doing business under the firm name and style of Krow & Neumann, successors to S. Krow & Son, to recover the possession of the lands in controversy. It was alleged in the complaint that the property was the sole and separate property of Mrs. M. M. Bernard, the mother of plaintiffs, and at her death passed to the plaintiffs, subject to the indebtedness due Kitchen under the deed of trust. It was further alleged that at the time of the foreclosure of the deed of trust and the sale of the property thereunder, plaintiffs were minors; that J. D. Bernard was their natural guardian; that whatever interest J. D. Bernard acquired under the foreclosure sale mured to their use and benefit; that Bush, who purchased at the foreclosure sale, acted only as an intermediary for the purpose of transmitting the title to the property to their father, and that the effect of the deed from Busli and wife to Bernard was to vest the title to the land in their father as trustee for them; that the sale from Bernard to S. Krow & Son was void, as the plaintiffs did not convey their title to the lands, but it was neverthelessa cloud upon the title. . It was alleged that the defendants had knowledge of all the facts above stated; that, notwithstanding such knowledge, they entered into possession of the land on or about the- 17th of August, 1905, since which time they had been in possession, colleeting the rents and profits. The plaintiffs prayed that title to the property be divested out of the defendants and vested in the plaintiffs; that the deed from Bernard to S. Krow & Son be canceled -as a cloud upon their title; that a master be appointed to ascertain the amount of rent and profits collected by the defendants during their occupancy; and that the plaintiffs have judgment for same, and for all other and proper relief.

Defendants in their answer denied all the material allegations of the complaint and deraigned title under the deed of trust of Mrs. M. M. Bernard to Biscoe, trustee, and the foreclosure sale and purchase thereunder as set forth, in the complaint. They denied that the foreclosure sale and the purchase thereunder were void. They set up that that the sale and the purchase were regular and according to law. Among other things they alleged that the defendants purchased the land in good faith at a time after the foreclosure sale when the lands had enhanced in value and after the purchaser thereof at the foreclosure sale and his grantees had placed valuable improvements thereon; that they believed that they were getting a good and perfect title by their purchase and purchased without any knowledge or notice of any possible claim of the plaintiffs. They therefore alleg-ed that they were innocent purchasers for value and entitled to protection as such. They alleged that they had peaceably improved the land, paid the taxes and assessments thereon for nineteen years.

For the purpose of obtaining alternative relief in the event it should be adjudged that the lands belonged to the plaintiffs, the defendants alleged that.S. Krow & Son bought the land on the 17 th day of August, 1905, from J. D. Bernard and paid therefor in the following maimer: By assuming the mortgage debt of $973.75 and interest thereon due under the mortgage of J. D. Bernard to Mrs. Clara S. Bush, and by deeding to the said Bernard a house and lot in Trenton, Arkansas; that the defendants paid full value for the lands; that the mortgage debt was satisfied by the defendants; that the mortgage had been placed on the lands to pay the mortgage debt due F. F. Kitchens, which in turn was incurred to pay off a mortgage debt to T. W. King; that by reason of these facts defendants were entitled to be subrogated to the rights of the lien-holders to secure the defendants repayment of the money advanced and used in discharging the lien debts on the land; and in addition to this that the plaintiffs should do equity by repaying, to the defendants the value of the house and lot in Trenton, Arkansas, to-wit, the sum of $500, and also the sum of $225 in cash. The answer also contained a plea of the statute of limitations and of laches.

Various deeds were introduced showing the deraignment of title by the respective parties as set forth in their pleadings, and also a deed from Krow & Neumann to Bernard conveying a house and lot in Trenton, Arkansas. After considering these documents and the depositions of the various witnesses introduced on behalf of the parties, the court made the following findings:

“That the land in controversy was purchased by Mattie Matilda Bernard, on or about the 17th day of March, 1899, from one Joseph S. Miller, and that the said Mattie Matilda Bernard entered into immediate possession of said land and occupied the same as her homestead until the day and date of her death, on the 29th day of September, 1903; that on the 19th day of March, 1903, the said Mattie Matilda Bernard joined with her husband, J. D. Bernard, in the execution of a certain deed of trust given by them to C. N. Biscoe, trustee, for the use of F. F. Kitchens, to secure an indebtedness due by J. D. Bernard to the said F. F. Kitchens; that the said Mattie Matilda Bernard departed this life intestate on the 29th day of September, 1903, leaving surviving her J. D. Bernard, her husband, who died during the month of September, 1908, and four minor children, namely, Percy L., Ora Thelma, and the plaintiffs, Effie May Bernard, now Guthrie, and Fitzhugh Lee Bernard; that all of' said children were minors at the time of their mother ’s death, and that the said Percy L. Bernard and Ora Thelma Bernard, two of the children above mentioned, died in infancy, subsequent to the death of their mother, Mattie Matilda Bernard, and that the plaintiffs herein are the sole living heirs-at-law of their mother, Mattie Matilda Bernard; that the land in controversy was occupied by the said Mattie Matilda Bernard as a homestead at the time of her death, and that the title upon her death passed to the children above mentioned, subject to the life estate of J. D. Bernard, which life interest was postponed until after the expiration of the homestead interests of the said minor children; that the said land at the time of the death of the said Mattie Matilda Bernard was subject to the mortgage indebtedness due by the said J. D. Bernard to the said F. F. Kitchens; that on the first day of February, 1905, the deed of trust given by J. D. Bernard in which the said Mattie Matilda Bernard joined with him in the execution thereof to F. F. Kitchens, to secure a mortgage indebtedness due by the said J. D. Bernard to the said F. F. Kitchens,was foreclosed under its powers by C. N. Biscoe, trustee, and the lands in controversy were purchased at said sale by J ames R. Bush, who on the same day and date of said sale deeded the said property to J. D. Bernard, father of the plaintiffs herein, who were minors at the time of said foreclosure sale; that the said James R. Bush, in purchasing said land at said foreclosure sale, acted only as a medium for the purpose of transmitting the title to said lands to the plaintiff’s father, J. D. Bernard; that at the time the mortgage in favor of F. F. Kitchens was foreclosed under its powers by C. N. Biscoe, trustee, the said J. D. Bernard was the natural guardian of his minor children, who wore the owners of the fee title to said lands in controversy by inheritance from their mother, Mattie Matilda Bernard, and that any and all right, title, claim and interest acquired by the said J. D. Bernard was that of trustee for the use and benefit of the minor children, the plaintiffs herein; that the sale of the land in controversy by J. D. Bernard to S. Krow & Son was void in so far as the same affects the right, title, and interest to said property of the plaintiffs herein; that the said J. D. Bernard held the record title to said property as trustee only for the use and benefit of the plaintiffs herein, and therefore could not sell and convey their interests in said land; that the defendants, Ira Krow and Victor F. Neumann, purchased the lands in controversy from J. D. Bernard, father of the plaintiffs herein, under circumstances creating actual and constructive notice of such trusteeship, and are therefore not entitled to avail themselves of the defense that they were and are now bona fide purchasers for value of said land, but the court finds that said defendants, Ira Krow and Victor F. Neumann, are entitled to recover of and from the plaintiffs herein the sum of $973.75, the amount of the original mortgage indebtedness, together with ten per cent, interest from the 17th day of August, 1905, and that the defendants are further entitled to recover the sum of one hundred and twenty-seven and 46/100 dollars, expended by them for the payment of taxes, together with interest thereon at six per cent, per annum, and are further entitled to recover the sum of six hundred and sixty-two and 61/100 dollars for improvements made upon the said place during the time that they have occupied the same since-the 17th day of August, 1905; that the defendants are not entitled to recover the sum of $225 alleged to have been paid by them in cash to the said J. D. Bernard at the time that they purchased the land in controversy, nor are the defendants entitled to recover the value of the house and lot given by them to J. D. Bernard in exchange or as a part of the consideration for the purchase of the land in controversy; that the plaintiffs are entitled to recover the rent from said land in the sum of $175 per annum from 1905, which finding as to the rental value of said land is based upon agreement between counsel for plaintiffs and defendants; that the plaintiffs are entitled to the immediate possession of the land in controversy.

The court thereupon entered a decree adjudging that the plaintiffs were the owners and entitled to possession of the land, which is described in the decree. There was a decree also for the plaintiffs in the sum of $2,800. The court further entered a decree in favor of the plaintiffs in accordance with his finding for the rents and profits against the defendants, less the amount of the mortgage indebtedness; taxes and interest thereon, and improvements. The-sum thus ascertained was $70. The decree also canceled the deeds from Biscoe, trustee, to Bush; from Bush and wife to Bernard; from Bernard to S. Krow & Son; and from Bosa Krow to Ira Krow and Victor F. Neumann. From that decree is this appeal.

1. The appellants contend that the court erred in •finding that “James R. Bush, in purchasing said land at said foreclosure sale, acted only as a medium for the purpose of transmitting the title to said land to the plaintiff’s father, J. D. Bernard;” and that the court erred in holding that Bernard acquired no title by his purchase from Bush. It is unnecessary for us to determine whether the court erred in finding that Bush acted as a mere intermediary in making the purchase. For, if it be conceded that the purchase by Bush was valid, nevertheless during the period of redemption Bernard could not acquire any title from Bush adverse to the appellees, his minor children. The purchase, therefore, of Bernard from Bush must be held as tantamount only to a redemp-. tion by him of the land from the foreclosure sale for the benefit of the appellees. Even though the court erred in its finding of fact, its declaration of law and conclusion therefrom that Bush acquired no title but that the title was in the appellees,, is correct.

2. It is in proof that the Krow and Bernard families lived in the same neighborhood. S. Krow, of the firm of S. Krow & Son, purchased the land from J. D. Bernard, and the appellants acquired title from S. Krow & Son. Ira Krow, one of the appellants, testified that he had known Mrs. Bernard and knew when she died, and had known J. D. Bernard a long time. He knew that the land belonged to Mr. and Mrs. Bernard; that it was bought after they married. They had several young children at the time of Mrs. Bernard’s death. At the time they bought the land Judge Nichols was their (appellants’) attorney and examined the abstract of title and pronounced it all right. He was a skilled lawyer and appellants relied absolutely on his examination. But this opinion of Judge Nichols, however skilled as an abstracter and learned in his profession he may have been, did not exonerate the appellants from making further and more diligent investigation, if by such investigation the defects in Bernard’s title, from whom they claimed, could have been discovered. A diligent inquiry into the record title of Bernard and an inquiry into the facts and circumstances under which he acquired the record title to the lands would have discovered the defects therein. The appellants deraigned title through him and are bound by the knowledge of the defects in his title which an investigation thereof would have disclosed. See Gaines v. Summers, 50 Ark. 322-327; Abbott v. Parker, 103 Ark. 425-429; Graysonia & Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 192; White v. Moffett, 108 Ark. 490; see also Little Rock Lumber Co. v. Rankin, 107 Ark. 487-493. A dilligent inquiry upon the part of appellants would have discovered that Mrs. Bernard was the owner of these lands at the time of her death; that the same was her homestead; that the children had the right of inheritance and homestead, subject to the incumbrance that she had placed upon it, and that the title that Bernard acquired through the foreclosure sale was only that of a trustee for his children, and at the time of the purchase of S. Krow & Son the right to redeem the land from the foreclosure sale had not expired-. His purchase was but tantamount to a redemption of the lands from the foreclosure for their benefit.

To overcome appellants’ plea of innocent purchaser, it was only necessary for the appellees to show by a preponderance of the evidence that the appellants had actual knowledge of the defects in Bernard’s title, or that they had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry which, if diligently pursued, would lead to such knowledge. Such proof could have been made either by positive or circumstantial evidence. Bland v. Fleeman, 58 Ark. 84; Staples v. Freeman, 337 Ark. 18-22.

The appellants acquired the lands in controversy as a partnership and not as individuals. The deed under which they claimed conveyed the lands to S. Krow & Son, a firm composed of Ira Krow and Victor F. Neumann, and unto their heirs, assigns and successors forever.” This action is against the firm of Krow & Neumann. The knowledge of one partner in a transaction is the knowledge of both. Neumann therefore cannot claim to hold his partnership interest as an innocent purchaser under the plea that he did not have knowledge of the same facts and circumstances connected with the title of Bernard that his partner, Krow, had. See Cunningham v. Woodbridge, 76 Ga. 302. By analogy see Palmer v. Scott, 68 Ala. 380.

3. The chancellor was correct in finding in favor of the appellant in the sum of $973.75 with interest at 10 per sent, per annum from the 12th day of August, 1905. That sum represented the original mortgage indebtedness existing against the land at the time of the foreclosure sale, for which the lands of the appellees were liable under the mortgage executed by their mother to Kitchens. But the appellants were not entitled to recover from the appellees the additional sum of $225 which was paid to Bernard as a part of the consideration of the purchase price of the lands, nor were they entitled to the value of the house and lot which was also conveyed to Bernard as a part consideration of the purchase. There is no proof in the record that the appellees received the benefit of the cash which Bernard received, nor the value of the house and lot given in exchange to him as part of the purchase price. In the absence of proof that the appellees received any benefit from this additional purchase money, there is no principle of equity that would bind their estate to refund the same to the appellants as a condition precedent to their right to recover the property which their father sold in violation of his trust and which the appellants afterward acquired, as we have seen with notice of the trust. Of course, if it had been shown that this money had been used to enhance the value of their estate, the case might be different. See Holloway v Eagle, 135 Ark. 206.

4. The appellees are not barred by laches from maintaining this action. The appellee, Fitzhugh, was still a minor at the time of the .institution of this suit, and the right of action in Mrs. Guthrie dicl not accrue until Lee Bernard, the youngest child, attained his majority. Smith v. Scott, 92 Ark. 143; Kessinger v. Wilson, 53 Ark. 400; Holloway v. Eagle, supra.

The decree of the trial court is in all things correct, and it is therefore affirmed.


text:
    Tri-State Construction Company v. Watts.
    Opinion delivered February 20, 1922.
    1. Specific performance — indefinite contract. — A contract for the construction of a three-story brick building- with walls of a designated thickness and containing a certain number of rooms, without specifying- the size of the building or of the rooms and omitting other essential specifications, is too indefinite and uncertain to be enforced specifically.
    2. Reformation of instruments — sufficiency of proof. — To justify or authorize the reformation of a written instrument on account of a mutual mistake, the proof must be clear, unequivocal and decisive.
    3. Money had and received — unexecuted contract. — Where plaintiff advanced a sum of money to defendant on the assumption that a certain contract would be entered into, plaintiff is entitled to recover same where, without his fault, the contract was never executed.
    4. Money received — evidence.—In' an action for breach of a building contract, where plaintiff was permitted to recover the payments made by him, evidence held to sustain the chancellor’s finding that plaintiff was entitled only to -the proceeds of notes given by him to defendant as payment on the contract which were actually received by defendant, and not to the amount for which the notes were sold by plaintiff, and from which amount he deducted an agreed sum for his services.
    5. ■ Damages — failure to execute contract. — Where, without plaintiff’s fault, a proposed contract was never executed, defendant was not entitled to recover his traveling expenses incurred in endeavoring to have the contract executed.
    Appeal from Garland 'Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      Martin, Wootton & Martin, for appellant.
    Equity will reform a written instrument where there is a mutual mistake and where there has been a mistake by one party, accompanied, by fraud or inequitable conduct of the other. Pomeroy’s Equity, sec. 1376.

      Gibson Witt and A. B. Belcling, for appellee.
    The court will not decree an alteration in the terms of a written contract unless the proof is full, clear, unequivocal and decisive. 71 Ark. 614; 85 Ark. 62; 75 Ark. 72; 81 Ark. 420; 81 Ark. 166.
   Wood, J.

The appellant is a corporation organized under the laws of Tennessee. The appellee is a colored man who resided in Mississippi. On the 3rd of May, 1919, they entered into a contract which provides in part •as follows:

“That the said corporation in consideration of the sum of five thousand dollars cash in hand paid, and of the sum of twenty-one thousand dollars to be paid as herein provided, and the other stipulations and agreements herein contained, doth agree to construct upon a certain lot or parcel of ground in the city of ITot Springs, Arkansas, a tliree-story brick building with 13-ineh walls and fire walls above the roof, the roof to be of gravel and composition material, the first floor to he constructed for store purposes, and the other two floors for rooming purposes, with the necessary plumbing, wiring for electric lights, and piping for gas heating, and with a lavatory, washstand, toilet, and bath on each floor; the interior to be plastered and the wood work painted; that foundation to be of brick and concrete construction, and the work on same to begin upon acceptance and approval of the title to the said lot, and the building to be completed in three.months from the commencement of operations. ’ ’

The contract further provided that the appellee should furnish an abstract showing merchantable' title to the lot upon which the building was to be constructed • that, if the appellee failed io furnish such title to ho approved, by appellant’s attorneys, then the appellant was to refund to the appellee the sum of $5,000 paid to it by appellee and, if the title were approved, the appellant was to begin the construction on the building provided for in the contract upon the execution and delivery to it of a deed of trust upon the lot. The contract provided that the payment of the balance of the purchase money was to be made in monthly payments of $150 each, bearing interest at 8 per cent, per annum on the whole sum remaining unpaid, which interest was due semiannually. The deferred payments to be evidenced by a promissory note and secured by the deed of trust. The appellee was to insure the property, pay all taxes and reasonable attorney’s fees in case the appellant had to place the notes in the hands of an attorney for collection. The insurance, in case of loss, was made payable to the appellant. The above are the essential provisions of the contract which was signed by the appellee and by Mr. Halperin as president of the appellant company.

This action was begun at law in the G-arland Circuit Court. The appellee set up in bis complaint the contract and alleged the performance of its terms on his part and a breach thereof on the part of the appellant, and the refusal of appellant to return the cash payment which he had made appellant. He prayed for the return of this monejr with interest, and also for an additional sum of $2,000 as damages for the alleged breach of contract by the appellant. The appellant, in its answer, admitted the contract, averred that the appellee had paid only $4,000 on account, and alleged the willingness and ability of the appellant to perform the contract provided the appellee would pay to appellant the additional sum of $1,000 according to the contract and would purchase the lot in compliance with the contract. By way of cross-complaint the appellant alleged that the appellee had violated his contract by refusing to purchase the lot on which the building was to be erected, thereby rendering it impossible for the appellant to perform the contract oil its part; that, in contemplation of carrying out the contract, the appellant had purchased large quantities of building material, and had certain mill work done, and incurred other expense, all to appellant’s damage in the sum of $7,000, for which it prayed judgment. The appellee then filed a supplemental complaint alleging that the contract had been fully discussed between the parties ; that the contract was drawn by the appellant, and was not in compliance with their verbal agreement as to the kind of building to be erected; that it omitted essential and necessary stipulations, such as the dimensions of the building, the number and size of the rooms and various other material specifications which he specifically enumerated. The appellee alleged that their verbal agreement which was afterward to be embodied in a written contract was to erect a three-story brick building containing two storerooms and four bed-rooms on the first floor, eighteen rooms on the second and eighteen rooms on the third floor, all of the bed-rooms to be 12x14 feet with a hall 10 feet wide on the second and third floors, running the entire length of the building, and a like hall between the four rooms on the first floor; that the corner rooms were to have two windows and each of the other rooms one window, the building to be of sufficient length and breadth to provide for the number of rooms specified. There were to be suitable stairways connecting the different floors. He further alleged that he informed Halperin that he (the appellee) wns not a carpenter, and was not able to understand the sufficiency and legality of such a contract; that Halperin assured the appellee that he would prepai'e the contract as agreed upon, and the appellee fully trusted him to do so; that before the contract was signed by the appellee he was assured by Halperin that it fully protected the appellee and was in all respects in accordance with their verbal agreement. Appellee, believing and trusting in the statements of Halperin, signed the contract and paid him in cash $2,500 and sold and delivered to him purchase money notes on certain lands in the sum of $3,000; that the representations made by Halperin to the appellee to the effect that the contract was in accord with their verbal agreement were false, and that the written contract was designedly and fraudulently prepared for the purpose of cheating and defrauding the appellee.

The appellant answered the supplemental complaint of the appellee and admitted that the appellee and Halperin had discussed the details and specifications of the building to be erected under the contract, -and' alleged that their agreement was placed fully before a competent attorney employed by both parties to draft the contract in accordance with their agreement. The appellant admitted that the contract as drafted and signed did not cover their verbal agreement in detail. The appellant admitted that it was agreed that the building to be constructed was as alleged in the supplemental complaint, and alleged that this building was to be a building 32x80 feet, comprising two store-rooms each 15x60 feet and. thirty bedrooms each 10x12 feet x 9 feet 6 inches in height with hallways nine feet in width. The appellant admitted that it liad received in cash the sum of $2,500 from the appellee and denied all other allegations of the supplemental complaint. Appellant set up that the written contract omitted many of the substantial agreements between the parties. It reiterated its willingness to perform the contract when the same was definitely ascertained. It prayed that the cause be transferred to the chancery court in order that the contract might be reformed to express the true intent and agreement of the parties and that the rights and liabilities thereunder might be fully adjudged and determined.

The appellee replied to the allegations of the appellants ’ cross-complaint denying the same. The cause was transferred to the chancery court. The trial court, after hearing the testimony adduced by the parties, to sustain their respective contentions on the above issues, made written findings. The contract was introduced in evidonee, and Ü10 chancellor found il lo be as above set forth. The chancellor in his findings, among other things, states that the “size of the building, the number and size of the rooms are not mentioned, and no one could determine from the written contract the house agreed to be erected. Both parties now claim that the character of house to be built was fully understood between them by parol contract, but they do not agree as to what the parol contract was. * * * Defendant’s president states that he and the plaintiffs thoroughly understood each other; that both wanted to do what was right, but it now appears that they do not agree as to what the parol contract was, and therefore the same cannot be reformed as prayed by the defendant unless he has shown, not by preponderance of the evidence, but clearly and unequivocally, the contract was as he states, which he has not done.” The court, in a written opinion, after discussing the facts and making, among other, the' above findings and declaring the law applicable thereto, concluded its opinion as follows: “The defendant anyway has $4000 of the plaintiff’s money, and, as the true contract cannot be established, and as defendant has never offered to build the house according to its own version of the contract until suit was entered, the plaintiff should have judgment for the sum of $4000 with interest at 6 per cent, per annum from the filing of this suit.”

The court entered a decree in accordance with its findings and the law as declared by it in its opinion, awarding judgment to the appellee in the sum of $4000 with interest at the rate of 6 per cent, per annum from the 13th day of September, 1919, from which judgment is this appeal by the appellants and cross-appeal by the appellee.

It would unduly extend this opinion, and would serve no useful purpose, to set out and discuss in detail the testimony. The contract, on its face, was so indefinite and uncertain that it could not be specifically performed. It was specified that the building was to be a three-story brick building’ witli 13-ineli walls above tlie roof, the roof to ;be of gravel and composition material; the first floor to be constructed for store purposes and the other two floors for rooming purposes, etc. The dimensions of the building as to length and breadth are not given, nor the dimensions of any of the rooms. These, together with many other specifications, were absolutely essential to the specific performance of the written contract. With this mere general outline, if there had been a meeting of the minds of the parties as to the details of construction, as to the size of the building and rooms, doors, windows, stairways, etc., then the contract could be reformed so as to express that agreement and to render the same capable of specific performance.

The testimony of the appellee shows that he had a definite contract with Halperin for a building that was complete in all of its details; that they discussed all the details of the building before the contract was signed. There was nothing left out of it, and he specifies that the building was to be as follows: three stories, rooms 10x14 feet with a 10 foot hall on the second and third floors. The first floor to consist of four bedrooms in the rear and the balance of the first floor to consist of two storerooms. The rooms down stairs to be of the same size as those upstairs. The building to be of thirteen-inch brick walls, roof of cement and gravel. They agreed on the details of the building in all respects.

Halperin testified, exhibiting sketches, which he states were the exact copies of the original, and he gave in minute detail the dimensions of the rooms, halls and the specifications as to material, manner of construction, etc. Among other things he said that the building was to be a three-story brick building 32 feet wide by 80 feet long; that the first story was to have six rooms in the rear; that the rooms on the first floor were to' be 10x12 feet with a five-foot hall between the rooms. On the second and third floors were to be rooms 12x12 with a five-foot hall.

In appellee’s supplemental complaint lie sets forth in detail the dimensions of the rooms and halls that were to be constructed under the contract. In its answer the appellant denies that the details are set forth correctly in the supplemental complaint, and it sets forth that the building was to be 32x80 feet long comprising two storerooms each 15x60 feet and thirty bedrooms, each 10xl2x 9 ft. 6 inches high, with halls nine feet in width. It will thus be seen that the appellant and the appellee not only do not agree as to the specifications of the building as shown by the allegations of their pleadings, but also as shown by their testimony. The testimony of Halperin, the president of appellant, shows that the specifications as set forth in his sketches, and which he testified were the correct specifications, did not correspond with the specifications set up in appellant’s answer to the appellee’s supplemental complaint. In this state of the record, we are convinced that the appellant has not established by a preponderance of the evidence what the oral contract was with reference to the specifications of the building that was to be constructed. The appellant has wholly failed to prove by a preponderance of the evidence such a definite contract as would justify a court of equity in reforming the same and as reformed to declare a specific performance thereof. Appellant has signally failed to establish even by a preponderance of the evidence a cause of action for the reformation of the written contract as set up in its pleadings. Since appellant was asking for the reformation of a written contract and a specific performance of such contract as reformed, it was incumbent upon the appellant to bring itself within the rules of law applicable to the reformation and specific performance governing such contracts.

In Martin v. Hempstead County District No. 1, 98 Ark. 23, 29, it is said: “It must also be borne in mind that to justify or authorize the reformation of a written instrument in such cases the proof must be clear, unequivocal and decisive.” Also Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, 352; Tillar v. Wilson, 79 Ark. 256.

The learned chancellor in his opinion cited the above cases showing that he correctly understood and applied the law applicable to the facts of this record. The above familiar rule has never been departed from and has been reiterated in many later cases. See Welch v. Welch, 132 Ark. 227; Connecticut Fire Ins. Co. v. Wigginton, 134 Ark. 152; Cain v. Collier, 135 Ark. 293; Broderick v. McRae Box Co., 138 Ark. 215; Glasscock v. Mallory, 139 Ark. 83-89.

■ Having concluded that the appellant is not entitled to a reformation and a specific performance of the contract because of a lack of mutuality, it is unnecessary for us to enter upon and discuss the issues as to whether or not the appellant, through its president, perpetrated a fraud upon the appellee which would deprive it of the relief it seeks, even though the contract were sufficiently definite and certain to be enforced. We therefore re! frain from doing so.-

Since the appellant has failed to establish a contract with the appellee that entitled it to specific performance, it follows, as a matter of course, that the appellee is entitled to recover from the appellant the $2,500 in cash and the $1,500 which the appellant realized out of the notes that appellee placed in the hands of the appellant as the balance of the payment of $5,000 cash mentioned in the written contract of May 3, 1919. The trial court found .that the appellant refused to erect the building on the lot selected by the appellee, or by delay put it out of appellee’s power to perform his part of the contract in the purchase of the lot; that the option which the appellee had for the purchase of the lot had expired through the default of the appellant.

Without discussing in detail the facts upon which the trial court based its opinion, it suffices to say that, after a careful examination of the record, we have reached the conclusion that the trial court was correct in these findings. ' The failure to purchase the lot and to agree upon the particulars of the building contract as contemplated by the written contract set forth above was not the fault of the appellee, but that of the appellant. True, appellant alleged in its answer and cross-complaint that it was willing and able to perform the contract, ¡but, as we have seen, appellant failed to establish any completed contract capable of enforcement, and the consideration for such contract necessarily fails, and, as we conclude, not through any fault of the appellee. Therefore, the appellant must refund to the appellee the amount that it obtained from the appellee on the assumption that the contract would be entered into and performed by the appellant:

We have also reached the conclusion that the chancellor was correct in refusing to allow appellee any damages growing out of the alleged breach of contract and also in refusing to allow him the sum of $900 which represented the loss or discount on the notes-for $3,000 which the appellee had placed with appellant as a part of the cash payment contemplated by the contract. Halperin testified that the notes were turned over to him by the appellee, and he accepted the same on the -assumption that they were first mortgage notes; that this was the representation made to him by the appellee; that he afterward ascertained that the notes were not first mortgage notes, but were only secured by a second mortgage, and that they were not valued for more than $1,500. He then returned the notes to the appellee and the appellee promised to send the balance of the $5,000 cash payment mentioned in the contract. That appellee later sent the appellant his check for $1,500 and this, with the $2,500, making the sum of $4,000, was all that was ever paid to the appellant under the contract.

The testimony of appellee tended to prove that after the notes were*returned to him he sold the same for the sum of $2,100; that he first obtained permission of the appellant to sell the notes for that sum, and that appellant agreed to allow him to retain for his services in making the sale the sum. of $600. The testimony of the appellant on this issue as to the cash payment received by appellee from the appellant under the contract is, we believe, sustained by a preponderance of the evidence. The appellant actually realized only the sum of $4,000 out of the transaction, and this sum is all that it should be required to refund to the appellee. The damages which the appellee claims he sustained by reason of the failure of the appellant to carry out its contract, if any, were incurred by the appellee in making trips to Hot Springs in an effort to complete the contemplated contract with the appellant, which, as we have seen, was never consummated. These alleged damages therefore were not established as incidents to or results of any failure upon the part of the appellant to perform its part of the written agreement.. They do not grow out of any breach of contract on the part of the appellant.

The decree of the chancery court is in all things correct, and it is therefore affirmed.


text:
    C. A. Reese & Company v. Kirk.
    Opinion delivered February 20, 1922.
    Principal and agent — principal bound by agent’s act._Where plaintiffs hauling gravel for a road improvement delivered their gravel checks to one D and authorized him to collect them, and he collected the money from the contractor, hut failed to pay it to plaintiffs, they cannot hold the contractor liable.
    Appeal from Little Biver Circuit Court; James S. Steel, Judge;
    reversed.

      A. D. DuLaney, for appellant.
    Dooley was the employer of the appellees, and they created him their agent to collect the sums due them by turning over their tickets to him. 25 Ark. 219.
    There was no privity of contract between appellant and the appellees. The bond was for the protection of the road district and not of the appellees. See 49 Atl. 929; 198 Pa. 9.

      Appellees are barred by the statute of frauds, C. & M. Dig., sec. 4862.
    No brief for appellee.
   Wood, J.

The appellees filed in the justice court separate claims against the appellant for work and labor done by their sons in the hauling of gravel in the construction of the road in Improvement District No. 7, Little Biver County, Arkansas. On appeal to the circuit court the appellant (defendant below) filed a written answer in each case denying that it was indebted to the plaintiffs therein in any sum whatever for gravel hauled or labor performed, and alleging that, if the plaintiffs did any work upon the road for which the defendant was general contractor, it was done for another for whose debts the defendant was not liable. The defendant pleaded the statute of frauds.

The causes were consolidated for trial, and by consent submitted to the court sitting as a jury.

The facts in regard to these claims, so far as it is necessary to set them forth, are substantially as follows: The appellant, Beese & Company, was the general contractor for Boad District No. 7, created by special act of the General Assembly of 1919. One Wyneoop was a subcontractor under Beese & Company. Wyneoop employed one Dooley to haul gravel by the yard on the road. Dooley employed the sons of the appellees, Kirk, Bichardson and Callicott (hereafter called for convenience the appellees) to work for him in the hauling of gravel on the road. The engineers of the district furnished and issued tickets to the appellees Kirk and Bicliardson, to show the amount of gravel they had hauled. To the appellee, Callicott, no tickets were issued. These tickets issued to the appellees, Kirk and Bicliardson, showing the amount of gravel they had hauled, were delivered by the appellees to their employer, Dooley, in order that he might collect the money for the hauling and pay them for their work. All the appellees were employed by Dooley and looked to him for their pay. The district had paid the appellant, and the appellant had paid tlie sub-contractor, Wyncoop, and Wyncoop had paid Dooley, bnt Dooley failed to pay the appellees for the work and labor they performed on the road and for which they sue.

The contract of the appellant with the district and also their bond for the performance of that contract were in evidence, but, under the conclusion we have reached, it becomes unnecessary to set out the provisions of the contract and bond upon which the appellees relied. The trial court upon the above facts made the following written findings: “That Beese & Co. was indebted to Biehardson in the sum of $33.10, to W. W. Callicott in the sum of $13.50 and'to H. M. Kirk in the sum of $44, each amount bearing interest from January 1, 1921, at the rate of 6 per cent.;” and the court declared the law to be that Beese & Co., as the principal contractor for Boad District No. 7, Little Biver County, Arkansas, was liable to the plaintiffs respectively as a matter of law as such contractor for the above-named sums. The appellant requested the court to find among other things, the following:

“3. That W. C. Dooley was the agent of the plaintiffs when the plaintiffs delivered the gravel checks to him for collection; and, if he did not deliver to the plaintiffs the money received therefor, the defendant was not liable for the wrongful act of W. C. Dooley.” And also requested the court to declare the law to be “4. Under the facts the plaintiffs entrusted to W. C. Dooley as their agent all of their tickets to collect the money, and the proof shows that .all the tickets issued to the plaintiffs for labor performed for W. C. Dooley for tlie loads of gravel hauled by Dooley’s teams have been paid for by the defendant, and that the defendant is not responsible to the plaintiffs, if their agent, Dooley, did not turn over to them the money upon said tickets. ’ ’

The court refused to make the finding of fact and to declare the law as requested by the appellants, but did find the facts and declare the laws as requested by the appellees. The court entered judgment in favor of the appellees for their respective claims, from which is this appeal.

The trial court erred. AVe do not find it necessary to decide whether the 'appellant, under the above state of facts, would have been liable to the appellees under its contract and bond with the road district. The undisputed facts of this record do not call for a decision of that question, and we therefore do not decide it. The undisputed testimony, as we view the facts, shows that the appellees were employed by Dooley, performed the work for Dooley, and after the work was performed constituted Dooley, although their employer, their agent to collect and pay the money over to them. Dooley collected the money, -but failed to pay them. Under these circumstances, Dooley was liable to the appellees, but the appellant was not.

It was not incumbent upon the appellant to see that Dooley, as the agent of the appellees, paid over to them the money which they authorized him to collect. The appellees entrusted him to collect and pay over the money to them, and if he violated his trust or agency he alone is responsible, and not the appellant. The evidence is undisputed that the appellees. Kirk and Richardson, turned over their gravel checks or tickets to Dooley to collect for them, and as to the appellee, Callicott, the undisputed evidence also shows that he looked to Dooley for his pay and not to the appellant. The appellees, thus having clothed Dooley with the apparent authority to act for them, are bound by his act in the collection of the sums due them, and must look to him for his delinquency in failing to pay them.

The court should have found the facts and declared the law in favor of the appellant. The judgments are therefore reversed,. and the causes of action are dismissed.


author: Hart, J.

text:
    Wilkerson v. Mobley.
    Opinion delivered February 20, 1922.
    1. Execution — non-keturn—penalty.—A sheriff cannot be made liable to the statutory penalty for the non-return of an execu- . tion where such non-return was the result of the instruction or intermeddling of the plaintiff.
    2. Execution — non-return—penalty.—Where an execution plaintiff, a few days before the return day, directed the sheriff not to levy the execution, but to wait several months and get out a new execution, and the evidence showed that it was not contemplated that the execution should be returned within the time fixed by law, the statutory penalty will not be enforced against the sheriff for failure to return the execution on the return day or to get out a new execution.
    Appeal from 'Clay Circuit Court, Western District; R. H. Dudley, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This was a motion for summary judgment in the circuit court against the defendant, Polk Mobley, as sheriff of Clay County, and his sureties and E. C. Matheney as deputy sheriff, for a failure to make due return of an execution placed in the hands of said deputy in favor of Jas. Wilkerson against E. O. Michaels and others for $173.85 and the accrued interest, issued from the office of the Clay Circuit Clerk. The defense is that the return of the execution was prevented by the interference of the plaintiff, Wilkerson.
    According to the evidence of the plaintiff the execution in question was issued on the 13th day of October, 1920, in the case of Jas. Wilkerson v. J. J. Johns, for the sum of $173.85 and the accrued interest. After the clerk of the circuit court had issued the execution, it was placed in the hands of E. C. Matheney, a deputy sheriff of Clay County. The deputy sheriff first levied the execution upon the horses of Jasper Sailes. It was found out that no judgment had been rendered against Sailes in the action because service of process had never been had against him. His horses were then released from the execution. Jas. Wilkerson, G. W. 'Brown, one of the defendants, and E. C. Matheney, the deputy sheriff, held a meeting a few days before the sixty days from the date of the issuance of the execution had expired. It was agreed between Matheney and Wilkerson that the execution should be returned, and that Matheney was to get out another one to run sixty days from December 15, 1920. Brown told them that he had some cotton that lie expected to sell about the middle of February, 1921, and that he would pay off the judgment with the proceeds. Wilkerson told Matheney to return the execution and get out another one, and Matheney agreed to do so. The execution was not returned. It was agreed between Wilkerson, Matheney and Brown that Matheney should not levy the execution, but that Wilkerson would give Brown until about the 15th day of February, 1921, to pay off the judgment.
    The testimony of Jas. Wilkerson is as follows:
    “I was the plaintiff in the execution issued against Michaels, Brown, Johns, and others. I ordered the clerk to issue the execution. A few days before the time for the execution to run out, Mr. Matheney and Geo. Brown, one of the defendants, came to me at Knobel to see if we could adjust the matter. Geo. Brown said that he could not pay the money then, but he believed that he could sell his cotton by the middle of February and be able to pay it off. Mr. Matheney said that he would have to levy that day, as the execution was about to expire. I agreed that Matheney could return the execution and get oat another one that would expire about the 15th of February, 1921. Brown said he would pay for the execution, and Matheney said he would pay for it, and they could pay him later on. I came up here in March and found that he had not gotten out the second execution.
    “I was willing to give the defendants further time, and I told Mr. Matheney not to levy the execution. I wanted him to return it. Matheney told me there that day that he would have to levy the execution while he was there, as it would expire in a few days, and that something must he done about it at that time. I wanted to give the defendants further time, as I thought that they would pay it. Mr. Brown said he would pay it when he sold his cotton.”
    E. C. Matheney testified as follows: “I told Wilkerson that-I was ready to levy on anything that he could show me. He said he could not find anything but what was under mortgage. Just a few days before the execution was to expire, I went to Knbbel, got Sailes, Brown and Wilkerson together back of Charley Cox’s barber shop in ICnobel, and told them something had to be done. Wilkerson told me not to make any levy, as Geo. Brown thought he could pay it by the 15th of February, 1921. I agreed that I would get out a new execution at my own expense and bring it down there and levy; then I made a return on this execution, placed it in my office so that I could have the information to go and get another one just like it. Mr. Wilkerson, when I first went to him, told me that some had been paid on the judgment, but that he did not know how much. The execution was for a larger amount than was due on the judgment.
    “The reason that I did not return the execution was that I had it there so that I could see what case it was when they wanted an execution. If I had levied this execution, I could not have told from the execution what was the proper amount to levy for.”
    Austin Jett testified for the defendant as follows: “I heard the conversation between Mr. Matheney and Mr. Wilkerson and George Brown at ICnobel behind Cox’s barber shop, in the early part of December, 1920. Mr. Brown said he had some cotton, and that, if Mr. Wilkerson would wait until about the middle of February, 1921. Mr. Wilkerson then told Mr. Matheney not to make the levy. Mr. Matheney told him that he would have to do something with the execution that day. He said the execution would expire in a few days.”

      The court found that the failure of the sheriff to return the execution was due to the instructions of the plaintiff, and it was adjudged that the plaintiff take nothing by his suit. To reverse that judgment the plaintiff has duly prosecuted this appeal.

      J. N. Moore, for appellant. '
    The clerk who issued the execution testified that same had never been returned. This made out a prima facie case and appellees should have been held liable under see. 6256, O. & M. Digest. See 56 Ark. 45.
    The only conduct on the part of the appellant which would excuse the sheriff from liability for not making return of the execution would be for him to waive or ratify such action by the sheriff’. 47 Ark. 373; 22 Ark. 524; 118 Ark. 271. A consent to the return of the execution without levy on the part of the appellant did not amount to a waiver of the requirement that the sheriff make due return thereof.

      F. G. Taylor and C. T. Bloodworth, for appellee.
    The instructions and conduct of the appellant caused the failure to make return of the writ, and appellant cannot now take advantage of the omission. 74 Ark. 413; 47 Ark. 373.
   Hart, J.

(after stating the facts.) It is well settled in this State that a sheriff should not be made liable under the statute for the non-return of an execution, when the failure to do so has been the result of the instruction or intermeddling of the plaintiff. The reason is that, where the failure of the sheriff to make the return is caused'by the plaintiff himself, he ought not to be permitted to obtain any advantage by it.

The statute in question is highly penal, and a partv invoking it must bring himself within both the letter and spirit of it. Therefore, he can do nothing which directly or indirectly contributes to the omission of the duty complained of and still hold the sheriff answerable under the statute. Bickham v. Kosminsky, 74 Ark. 413. The proof in this case shows that a few days before the return day of the writ the deputy sheriff who had in his hands the execution told the plaintiff, in the presence of the execution debtor, that he was ready to levy on any property belonging to the defendant that could be shown him, but that something had to be done because the time for the return of the execution would expire in a few days. This was in the early part of December. The plaintiff Wilkerson then agreed with the defendant Brown not to have any execution levied on his property until about the 15th day of February, 1921, at which time Brown thought he could pay off the judgment by the sale of his cotton.

It is true that the plaintiff himself testified that the execution then in the hands of the sheriff was to be returned and another one issued at the expense of the deputy sheriff, or of Brown, but he does not state, however, that it was to be returned within the. sixty days. Indeed, it is inferable from the testimony, read as a whole, that it was not in the contemplation of the parties that the execution should be returned within sixty days from the date of its issuance. It will be noted that the deputy sheriff was complaining that the sixty days would soon be out, and that he must do something with the execution. It was then agreed that the execution should not be levied on the property of Brown, but that Brown would be given until the 15th of February, 1921, before an execution should be levied upon his property. The court might have found that this was tantamount to an agreement by the plaintiff that the deputy sheriff should return the execution then in his hands at his convenience and sue out another if Brown did not make the payment by the 15th of February, 1921, as he had promised.

But it is claimed that the deputy sheriff did not carry out his promise of having another execution issued in the case. That is not the issue in the present case. This is a motion for summary judgment under the statute against the sheriff for failing to return an execution. The court found, as we have just seen, that the deputy sheriff would have returned the execution within the sixty days if the plaintiff had not told him, in effect, to let everything rest until the 15th of February, 1921.

It has been well said that the plaintiff can not first disarm the sheriff and then hold him liable for not returning the writ.

It follows that the judgment must be affirmed.


author: Hart, J. Hart, J.

text:
    Harmon v. Harmon.
    Opinion delivered February 20, 1922.
    1. Divorce — action for alimony. — An independent action for alimony will lie in this State.
    2. Appeal and error — bringing up testimony. — Oral testimony in a chancery case may be made a part of the record by having it taken down in writing in open court and by leave filed with the papers in the case, by bill of exceptions or by embodying it as a recital in the decree.
    S. Appeal and error — presumption where evidence not brought up.— Where oral evidence, heard by the chancellor, was not preserved in the record, the presumption is that the decree is supported by the omitted evidence.
    4. Divorce — imprisonment for failure to pay alimony. — Imprisonment of a divorced husband for a failure to pay alimony is justified only on .the ground of wilful disobedience to the orders of the court; and as soon as it is made to appear that he is unable to comply with such orders, he should be discharged.
    5. Appeal and error — record on appeal. — Although, under Crawford & Moses’ Dig., § 1269, oral testimony given in a chancery case may be made a part of the record by filing a transcript of the stenographer’s notes, such transcript must be filed during the term of court at which the case is tried, and must be indorsed as filed or directed to be filed by an order of court.
    Appeal from Gfarland Chancery Court, J. P. Henderson, Chancellor;
    reversed in part.
    STATEMENT OE FACTS.
    On the 12th day of October, 1920, Minnie Louise Harmon brought an independent action in the chancery court against C. D. Harmon to recover alimony. The husband filed an answer and cross-complaint in which he denied liability for alimony and asked for a divorce on the ground that his wife had wilfully deserted him for the statutory period.
    On the 13th day of June, 1921, the cause was heard in the chancery court as recited in the decree, “upon the complaint of the plaintiff, the answer and cross-complaint of the defendant, the depositions of witnesses, and testimony taken at the bar of the court,” etc. it was decreed that the defendant, C. 13. Harmon, should pay to the plaintiff, Mamie Louise Harmon, the sum of $50 per month for her support and maintenance, and that said monthly payments should begin as of the date her complaint was filed. It was further decreed that the cross-complaint of the defendant against the plaintiff be dismissed for want of equity. To reverse that decree the defendant has duly prosecuted an appeal to this court.
    Subsequently the plaintiff caused a citation to be issued against the defendant charging him with contempt of court for failing and refusing to comply with the order of the court in paying the alimony awarded her. Tbe contempt proceedings came on to be heard on the 25th day of July, 1921, upon oral testimony which has been preserved in the record by a bill of exceptions, and which will be stated in the opinion.
    The chancery court found the defendant had been guilty of contempt in not paying the alimony awarded his wife, and fixed his punishment at a fine of $25.
    To'reverse the decree entered of record against him in the contempt proceedings, the defendant has also prosecuted an appeal to this court.

      R. G. Davies, for appellant.
    The defendant should have been granted a divorce. 44 Ark. 420; 29 Am. Dec. 664; 51 Am. Rep. 86; 36 Am. Rep. 848; 11 N. Y'. Eq. 195; 14 Cyc. 604; 40 Am. Rep. 461.

      Martin, Wootton é Martin, for appellee.
    The defendant was not entitled to a divorce.. 62 Ark. 611: 82 Ark. 278; 107 Ark. 263.

      In an independent action for alimony, a year’s residence on the part of the plaintiff is not required. 54 Ark. 172; 75 Ark. 22.
   Hart, J.

(after stating the facts.) An independent action for alimony will lie in this State. Savage v. Savage, 143 Ark. 388. The chancery court entered a decree awarding alimony to the wife on her complaint and dismissing the cross-complaint of the husband in which he sought a divorce on the statutory ground of desertion.

The deposition of the plaintiff was taken in' the case. It appears from her testimony that she had tuberculosis and went to Texas for the benefit of her health, with the consent of her husband, and remained there for some length of time. Her testimony in this respect was corroborated by that of her physician, who testified that she still had tuberculosis and needed a complete rest of six months.

On the other hand, the defendant testified that the plaintiff was almost completely cured of tuberculosis and stayed in Texas because she wished to follow there her occupation of trained nurse, and that she had deserted and abandoned him of her own accord and without cause. The decree of the chancery court recites that' it was heard upon depositions and oral testimony.

Under our practice an equity case is heard ele novo by this court on the record made in the chancery court. Oral evidence in a chancery case may be made a part of the record by having it taken down in writing in open court and by leave filed with the papers in the case, by a bill of exceptions, or by reducing the testimony to writing and embodying it as a recital in the decree. Fletcher v. Simpson, 144 Ark. 436; Alston v. Zion, 136 Ark. 376; and Weaver-Dowdy Co. v. Brewer, 129 Ark. 193.

The oral evidence taken in the present case was not •preserved in the record, and under the settled rules of this court it must be presumed that the oral evidence which was omitted from the record sustains the chancellor’s finding and decree. Under the pleadings it is obvious that the correctness of the chancellor’s finding and decree depends upon the evidence introduced before him, and if that evidence is not preserved in the record we can not tell whether or not the chancellor erred in his finding- of facts, or the decree based on such finding. Therefore, the presumption in such cases is that the decree is supported by the omitted evidence.

It is insisted by counsel for the defendant that the oral evidence was preserved in a bill of exceptions which appears in the transcript. The decree of the chancellor in the main case was entered of record on the 13th day of June, 1921, and it was decreed that the cross-complaint of the defendant should be dismissed, and that he should pay the plaintiff alimón}? in the sum of $50 per month. The bill of exceptions referred to by the plaintiff shows that was taken at a later date on the trial of the contempt proceedings in July, 392.1, Therefore, this testimony could not have been used in the trial of the main case.

As we have just seen, the contempt proceedings were heard in July, 1921, and the bill of exceptions shows that the defendant was examined by the court and stated his reasons for not complying- with the orders of the court as to paying his wife’s alimony. He testified that he had no money or property out of which to pay the judgment for alimony; that he was only earning on an average of $32.87 above expenses per month; that he exhibited his books to the court; that his health is such as to render him unfit for manual labor and unable to endure physical exertion; that he is willing to pay the allowance when he can, and that he is now compelled to be supported by his mother, with whom he lives.

On cross-examination he stated that his mother was a woman of small means; that he had not asked her to help support his wife, and that he did not intend to do so.

We think this evidence was sufficient to excuse the defendant, and that the learned chancellor erred in punishing him for contempt. There is nothing in the record tending to contradict his testimony as to his inability to pay the alimony. His mother was under no obligations to pay the alimony and was not required to do so. She might support her son and still refuse to support his wife. Erwin v. Erwin, 120 Ark. 581.

Imprisonment of a divorced husband for a failure to pay alimony is justified only on the ground of wilful disobedience to the orders of the court, and as soon as it is made to appear that he is unable to comply with such orders, he should be discharged. East v. East, 148 Ark. 143; Webb v. Webb (Ala.) 103 Am. St. Repts. p. 30, and Messervy v. Messervy (S. C.) 137 Am. St. Repts. 873, and case note at 883.

It does not appear that the defendant made a fraudulent disposition of his property after the award of alimony against him; or that he failed or refused to perform the decree from mere contumacy. It appears that his neglect was the result of misfortune from want of means and ill health. The court is empowered to punish the defendant by imprisonment for wilful obstinacy where it shall appear that he had the means with which to comply with the decree, but it should not imprison him where he shows that he has not the pecuniary ability to comply with the decree and is in such ill health that he can not earn enough money to do so.

The result of our views is that the decree of the court awarding the plaintiff alimony and dismissing the cross-complaint of the defendant for want of equity, will be affirmed for the reason stated in the opinion.

The decree punishing the defendant for non-compliance with the decree for the payment of alimony will be reversed for the reasons above given, and the citation will be dismissed. Of course, under our practice the de-fendant may be again cited for contempt if it should be shown that his disobedience to the order of the court continues and is wilful or the result of fraudulent conduct in the premises on his part.

opinion on rehearing.

Hart, J.

Counsel for the plaintiff has filed a motion for a rehearing in the divorce case on the ground that the oral evidence is properly a part of the record.

Hnder sec. 1269 of the Digest, the oral testimony given in a chancery case may be made a part of the record by filing a transcript of the stenographer’s notes. The statute does not expressly prescribe the time within which such translation shall be filed, but by necessary implication the time is limited to the term of court at which the case is tried. Equity cases are tried de novo on appeal on the record made in the court below. Therefore, it is necessary that the record in this court should be founded upon the proceedings actually had in the chancery court. The decree becomes final when the term ends and the court loses jurisdiction over it. Hence the record must be made up while the chancery court has jurisdiction of the case. It can not be left to the stenographer to make up the record after the term has ended without the supervision or direction of the chancellor. To allow, this might be to substitute an entirely different record on appeal. Nor does the section give the stenographer and chancellor in vacation the power to make up the record without a bill of exceptions. No order was made allowing time after the term within which to file a bill of exceptions. Neither does it appear from the record that the stenographer’s transcript of the oral evidence was filed in the chancery court, indorsed as filed, or directed to be filed by an order of that court. Lacking these requirements, it cannot be treated either as a bill of exceptions, or as a part of the record under the statute. As pointed out in our original opinion, the decree comes within the issue made by the pleadings, and can not be disturbed on appeal.

It follows that the motion for rehearing will be denied.


text:
    Bankers’ Utilities Co., Inc., v. Cotton Belt Savings & Trust Company.
    Opinion delivered February 20, 1922.
    1. Evidence — varying written contract by parol. — Where a contract for sale of goods stipulated that no verbal agreements should be binding on the parties, the defense that plaintiff had agreed verbally not to sell the same kind of goods to any other person in the city cannot be proved.
    2. Fraud — what constitutes. — To constitute actionable fraud in the sale of property, the representations must be of existing facts' relating to the subject-matter of the contract, must be made by the seller as an inducement to the contract, and must be false and relied upon by the buyer in making the purchase, to his damage.
    3. Fraud — misrepresentation.—A representation by the plaintiff’s agent that he had not sold any goods of the class contracted for by the defendant to any one in the same town before the contract sued on was made, when in fact he had already done so, held to constitute actionable fraud.
    4. Principal and agent — fraud op agent. — A principal is liable for the fraud of his agent perpetrated within the scope of his employment.
    5. Fraud — knowledge op falsity. — A misrepresentation of the seller’s agent as to a material fact affecting the sale, which induced the buyer to make the purchase, is fraudulent, whether the agent knew them to be fraudulent or not.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;

    affirmed.
    STATEMENT OF FACTS.
    The Bankers’ Utilities Co., Incorporated, of San Francisco, California, sued the Cotton Belt Savings & Trust Co., a corporation doing business in Pine Bluff, Ark., for the sum of $1,040 alleged to be due upon a contract for one thousand small savings hanks at $1 each and checks for use with them for $40.
    The defendant answered that the contract sued on was obtained by the fraudulent representations of the seller. The contract is in writing dated March 9, 1920, and accepted by the plaintiff on March 15. 1920. By the terms of the contract the plaintiff agreed to ship to the defendant one thousand small savings banks at $1 each. The contract shows that the small savings banks were to be used in the windows of the defendant for display advertising service. The defendant was engaged in the general banking business in Pine Bluff, Ark. The contract contemplated that the display-of savings banks should be changed twice a week and should be installed in a case in a window of the defendant’s place of business. The contract also contained the following, “No verbal agreements are binding on either party hereto.”
    On March 20, 1920, the plaintiff received -a letter from the defendant dated March 35, 1920, canceling the order because the agent of the seller in making the sale had represented that the plaintiff had not sold the kind of goods in question to any other bank in the city of Pine Bluff, when in fact it had done so and the small display savings banks were in the display windows of another bank in said city.
    According to the evidence adduced by the defendant, the salesman of the plaintiff solicited the defendant to enter into the contract in question and said that the display would not be placed in any other bank in the city. The plaintiff asked the agent of the defendant if they had ever been sold to any other banking company in Pine Bluff prior to this time. The salesman replied'that they had not, and that they had never offered anything of the kind for' sale in Pine Bluff. The defendant relied upon this representation in purchasing- the display banks, and would not have purchased them if it had known that they had been sold to any other banking company in the city prior to this time. A few days after signing the order the defendant saw some of the same banks in the display windows of another banking company where they were being used for advertising purposes in the same way that the defendant intended to use them. The contract had been made with the People’s Savings Bank & Trust Company, for something over a year prior to the execution of the contract sued on. The display in the windows of the People’s Savings Bank & Trust Company, however, was identical with the display that the defendant had contracted to get from the plaintiff.
    The jury returned a verdict in favor of the defendant, and from the judgment rendered the plaintiff has' duly prosecuted an appeal to this court.

      Reinberger & Reinberger, for appellant.
    The court erred in allowing parol evidence to be introduced, when the written contract expressly stipulated that verbal agreements would not be binding on the parties. 75 Ark. 210.
    Appellee read the contract, and had an opportunity to learn the true facts before signing same, and is presumed to have done so. 31 Ark. 170; 30 Ark. 686; 21 Ark. 244; 26 Ark. 28.
    An untrue representation, in order to be fraudulent, must be known to be untrue, by the party making same. 31 Ark. 170; 38 Ark. 334. This was not the case here.

      Crawford & Hooker, for appellee.
    There is no attempt to vary the written contract by parol evidence, but to show that same was induced 'by the misrepresentation of a material fact. It is not necessary that the agent knew the representation to be false, but, if he made same recklessly, without caring whether it be false or true, and the other party acted upon it, the representation amounts to a fraud. Elliott on Contracts, 1 vol. p. 135, secs. 82, 83, 88, et seq; Lawson on Contracts, secs. 237-8, 243; Story, Equity Jurisprudence, sec. 192, 193. 14 A. & E. Enc. Law. p. 99; 75 Ark. 95.
   Hart, J.

(after stating the facts.) To reverse the judgment, counsel for the plaintiff rely upon the rule laid down in Pratt v. Meyer, 75 Ark. 206, to the effect that where an order for goods sold stipulates that verbal or written agreements with salesmen shall not be binding on the seller, it is incompetent to prove as a defense,when sued for the purchase price of the goods, that the plaintiff’s salesman agreed not to sell his goods to any other person in the city.

The contract sued on contained a stipulation that no verbal agreements should be binding on the parties. Under this stipulation the defendant could not, when sued for the purchase price of the display banks, prove as a defense that the plaintiff had agreed not to sell them to any other person in the city. That is not the issue, however, presented by the record in this case. The defense relied upon is that the contract was procured ¡by the fraudulent representations of the seller’s agent. The general rule is that representations of facts that will exist in the future, or which are promissory in their nature, though false, do not afford the basis of actionable fraud. To constitute actionable fraud in the sale of property, the representations must be of existing facts relating to the subject-matter of the contract made by the seller as an inducement to the contract, and such representations must be false and relied upon by the buyer in making the purchase to his damage..

In the application of this rule in French & American Imp. Co. v. Belleville Drug Co., 75 Ark. 95, the. court held actionable a misrepresentation that the plaintiff had not sold any goods of the class contracted for by. the defendant to any one in the same town before the contract sued on was made, when in fact it had already done so. That principle controls here, and the trial court was governed by it in giving its instructions to the jury. It is true that the sale was made by an agent of the plaintiff, but it is elementary that a principal is liable for the fraud of his agent perpetrated within the scope of his employment. The principal can not affirm the action of his agent in making a sale and not assume responsibility for his representations. The plaintiff employed the salesman to sell the display banks and is liable for any false and fraudulent representations made by its agent. It does not make any difference whether the agent knew the representations to be false or not, if in fact they were false as to a material fact affecting the sale and induced the buyer to make the purchase.

Therefore the judgment will be affirmed.