text:
    Southern Improvement Company v. Road Improvement District No. 5.
    Opinion delivered May 18, 1925.
    1. Exceptions, bill of — statutory methods of preserving exceptions. — Where a party in a chancery cause undertakes to preserve exceptions to rulings of the trial court not appearing of record by bill of exceptions, the statutory methods must be pursued.
    2. Exceptions, bill of — bystander’s bill — time of filing. — A bystanders’ bill of exceptions, not filed within the time provided by Crawford & Moses' Digest, § 1318, cannot be considered as part of the record.
    Appeal from Arkansas Chancery Court, Southern District; Jolvn M. Elliott, Chancellor;
    modified.

      Sam W. Trimble, R. W. Wilson and W. G. Riddick, for appellant.

      J. M. Erice and John W. Moncrief, for appellee. .
   Wood, J.

Road Improvement District No. 5 of Arkansas County, hereafter called district, was created by act No. 169 of the Acts of the General Assembly of Arkansas in the year 1919. The district contained 84.5 miles of road radiating in four main branches from the town of DeWitt. The main branches or roads out of DeWitt were divided into sections, and these sections were subdivided into two or more lines. The contract for building the road was awarded to the Southern Improvement Company, hereafter called appellant. The district entered into a contract with the appellant for the construction of the improvement, and the appellant sublet a small portion or line of the road to one McNulty, who assigned his contract to one A. M. Perdue. Perdue, claiming that he had completed the work according to his contract, demanded of the district inspection and acceptance of the same, upon the refusal of which he instituted this action in the chancery court of Arkansas County on the 5th of August, 1922, against the appellant and the Southern Surety Company, the surety on appellant’s bond, for the performance of its contract. Perdue alleged that the appellant was due him the sum of $12,000; that the district was indebted to appellant in a greater sum than appellant owed him, and he asked that garnishment issne against the district, which was done. On the 27th of September, 1922, the court entered an order allowing the district thirty days to answer, and enjoining the parties from taking depositions until the expiration of that time. On October 27, 1922, the district answered denying liability to any one for the work done by Perdue, and, in answer to the writ of garnishment, alleged that it had retained $12,000 out of the first estimates of the engineers after the service of the writ.

On January 22, 1923, the appellant and the surety company answered denying the allegations of Perdue’s complaint. On February 3, 1923, one Spratlin, for himself and other taxpayers in the district, filed what he designated an intervention and cross-complaint, alleging that the action by Perdue against the appellant and the district involved the construction of the contract between the appellant and the district, and that Perdue and the district and its commissioners and the appellant and its subcontractors and engineers had entered into a collusion to defraud the taxpayers of the district. He alleged that the district and its officers had paid to the appellant approximately $1,500,000. He denied that the district was indebted to the- appellant and Perdue in any sum, and prayed that the district and its officers be enjoined from paying to appellant, and that the appellant be enjoined from receiving, any further sums upon the contract for the construction of the improvement, and that the writ of garnishment be dismissed.

Upon the filing of this intervention, summons was issued and served on February 3, 1923, and on that day temporary injunction was issued, restraining the district from paying over any funds to the appellant or the subcontractors. On the 5th of February, 1923, an order was entered making the district a party defendant to the action, and on the next day an order was entered by the chancery court allowing the commissioners of the district twenty days in which to complete their proof, and allowing appellant and Perdne ten days for taking proof in rebuttal, and allowing the interveners an additional thirty days after the expiration of the ten days allowed appellant and Perdne in which to take their proof, and directing that the canse should he submitted for consideration and judgment of the court without further delay. Later, on the 20th of February, 1923, Spratlin filed an amendment to his intervention and cross-complaint, seeking further judgment against the- appellant and certain subcontractors and their sureties, upon which summons was issued March 12, 1923. On the 21st of March, 1923, Spratlin filed a second amendment to his intervention and cross-complaint, alleging collusion between the commissioners of the district and the appellant, and seeking to recover additional sums, amounting to several hundred thousand dollars, and also asked a mandatory injunction to compel the commissioners to proceed with the work and to restrain them from accepting any portion of the road as completed.

On the 27th of March, 1923, the record shows permission to file, and the filing of, an amendment to their pleadings by the interveners and an answer thereto by the disti'ict, and also there was noted of record the filing of depositions. On the same day an order was made directing that the cause be submitted ■ on the 30th of April, 1923, and directing that all parties take proof by deposition, and granting the right to all parties to take oral testimony on submission of the cause.

On April 27,1923, the interveners filed a petition for temporary injunction to restrain the appellant from disposing of its property. . In the absence of the circuit judge and chancellor from Arkansas County, the county judge granted the petition and entered an order on April 28, 1923, restraining the appellant from disposing of its property. On the 30th of April, 1923, depositions of certain witnesses taken in vacation were noted as having been filed on the part of the district and the interveners and made a part of the record. These depositions were noted as having been taken at various dates from March 1, 1923, to and including April 25, 1923. According to the recitals in the record, the following proceedings were had on April 30, 1923:

“On the call of this case comes A. M. Perdue, by counsel, A. P. Triplett, and announces ready for trial, and none of the parties object thereto, whereupon the court required the pleasure of all parties as to the submission of this cause; and come interveners, Spratlin et al., by counsel, J. M. Brice; board of commissioners by their chairman, J. H. Boone; Southern Improvement Company (a corporation organized under the laws of Delaware) and Southern Surety Company (a corporation organized under the laws of Iowa), by their attorney, Sam "W. Trimble; and Arkansas County Road Improvement District No. 5 (organized under act 169 of the Acts of 1919), by counsel, Jno. "W. Moncrief, and all parties announced ready for trial, and consent to the submission of this cause upon the complaint of Spratlin et al., answer of Southern Improvement Company, answer of Southern Surety Company, answer of Road Improvement District No. 5, additional or supplemental answer of said district, answer of board of commissioners, and thereupon this cause is submitted to the court on said pleadings with exhibits, all depositions taken with exhibits, and all other files in the case, and, by consent of all parties-, this cause is taken under advisement by the court, and, by their consent, the judgment and decree of the chancellor and court is to be rendered in vacation, and it is so ordered.”

On May 7,1923, the court entered a decree in favor of Perdue against the appellant and the surety company in the sum of $11,844.37, and in favor of the district against the appellant and the surety company in the sum of $190,000, and restraining the commissioners of the district from paying the appellant any money and the appellant from accepting or receiving any money from the commissioners of the district. The record shows that on May 31, 1923, the court entered an order approving' a settlement and a decree between the surety company and the district by which the surety company paid the sum of $55,000, and was released from all liability on the decree against it, $12,500 of which was to be paid to Perdue. The appellant announces in its brief that it is not interested in the appeal in the original suit between Perdue and the appellant; that it only prosecutes the appeal from the decree in favor of the district in the sum of $190,000.

The appellant contends that the cause was not submitted by consent; that the recitals of the record of the submission of the cause, as above set forth, to the effect that the appellant, together with the other parties, announced ready for trial and consented to the submission of the cause upon the pleadings, exhibits and depositions, and that the cause, by consent of all parties, was submitted and taken under advisement, that they consented that the decree should be rendered in vacation, were all erroneous recitals. Counsel for appellant contends that the record itself shows that, some days prior to the 30th of April, 1923, counsel for appellant objected to the taking of testimony by the interveners, and gave notice that it would offer to file pleadings, and stated that, if the pleadings were overruled, appellant reserved the right to introduce testimony in defense of matters that had been brought out in the depositions taken for the interveners, and notified counsel for the interveners that appellant would take no depositions until the court had passed upon the motions which counsel for appellant proposed to offer to file. This all occurred prior to the recitals of the order showing the submission of the cause by consent of all parties, and in no manner tended to contradict the recitals of the record showing that the cause was submitted by the consent of all parties.

Furthermore, to sustain the contention that the cause was not submitted by consent, appellant relies upon ■what is designated as a “supplemental transcript, or bystanders’ bill of exceptions.” This document was filed in this court November 6, 1923, three days after the filing of the original transcript. It does not contain a certificate of the clerk of the chancery court of Arkansas 'County identifying it as a part of the original transcript of the record in the cause. It was not filed in the office of the clerk of the chancery court of Arkansas County. The document contains what purports to be the affidavits of W. F. Coleman, E. B. Reynolds, and J. P. McGfaughey. These affidavits were to the effect that the affiants were in the courtroom of the chancery court of Arkansas County on the 30th of April, 1923, when said court was in session and being presided over by the Hon. John M. Elliott; that the affiants saw and heard Sam W. Trimble, attorney for the appellant, on a call for motions, offer to file a supplemental answer, a motion to strike intervention, and motion to suppress testimony in the case of Perdue against appellant, and saw and heard the judge refuse to allow the papers to be filed; that Mr. Trimble and Mr. R. W. Wilson, attorneys for the appellant, stood with these papers in hand, and requested permission to file the same; that the presiding judge stated that he was not going to let any papers whatsoever be filed by the attorneys; that Mr. Wilson, attorney for the appellant, then asked the court to let the record show that these papers were offered for filing and to note their exceptions to the court’s refusal to allow the same to be filed; that the judge thereupon refused to let the papers be filed, and said that the record should not show anything whatever as to the offer to file the papers, or any refusal of the court in not allowing them to be filed, or to note any exceptions on the record of the court’s ruling. These affiants stated that they were not interested in the cause, and were merely bystanders in the courtroom. The affidavits, on their face, show they were made before a notary on the 5th of November, 1923. This document also contains the affidavit of Sam W. Trimble, attorney for the appellant, to the effect that on Monday, November 5, 1923, at 10 o’clock a. m., lie presented to the Hon. J. M. .Elliott, chancellor and chancery .judge of Arkansas County, Southern District, at the chancellor’s office, in Pine Bluff, the “ supplemental transcript or bystanders’ bill of exceptions,” and requested him to sign the certificate, either certifying or refusing to certify the same as contained therein; that he refused to sign the same.

It thus appears from the affidavit of Sam iW. Trim-ble, one of the attorneys for the appellant,' that the so-called ‘‘bystanders’ bill of exceptions” was not presented to the judge of the chancery court of Arkansas County for his approval or rejection until November 5, 1923. The recitals of the record of the chancery court show that the cause was submitted for trial and taken under advisement on April 30, 1923. The recitals in the record do not show that the appellant asked and was granted time beyond the March term of the Arkansas County Chancery Court for preparing and presenting a bystanders’ bill of exceptions. The record shows that the decree was rendered on May 7, 1923, the same being a day of the March term, 1923, of the Arkansas Chancery Court, Southern District. A regular term of the court had intervened the day when the decree was entered and the day when the appellant, through its attorney, presented to the chancellor in chambers its so-called bystanders’ bill of exceptions for his approval or rejection.

Where a party in a chancery cause undertakes to preserve exceptions to the rulings of the trial court, not appearing of record, by bill of exceptions, the statutory method must be pursued.

Now, the statute provides that the party objecting to a decision of the trial court must except at the time the decision is made, and time may be given to reduce such exception to writing, but not beyond the succeeding term. The statute provides that, if the party excepting is not satisfied with the rulings of the trial court upon his exception, he may procure the signature of two bystanders attesting tlie truth of his exceptions, and file the same as a part of the record; that these exceptions may be maintained and controverted by affidavits, not exceeding five in number on each side, to be filed with the clerk within ten days after the filing of the exceptions, which affidavits shall be a part of the record. See §§ 1318 and .1322, Crawford & Moses’ Digest. It does not appear therefore that the appellant observed any of the statutory methods for bringing into the record by “bystanders’ bill of exceptions” its exceptions to the rulings of the trial court, as shown by the recitals of the record of which it here complains. See Boone v. Goodlett, 71 Ark. 577; Ayer-Lord Tie Co. v. Greer, 87 Ark. 543; Cox v. Cooley, 88 Ark. 530; Pearson v. State, 119 Ark. 152; Sneed v. State, 159 Ark. 65-84; So. Improvement Co. v. Elliott, 160 Ark. 633.

The last case cited was a' petition to this court by the appellant herein to compel the chancellor by mandamus to file the same papers which appellant here seeks to bring into the record by a bystanders’ bill of exceptions. The appellant sets up in its petition that, on the day of the submission of this cause, it tendered and asked permission of the court to file these pleadings, and that the court refused its request. The chancellor filed a response to the petition for mandamus in this court, in which he states that the papers were offered after all the parties, through their attorneys, had voluntarily consented to a submission of the cause on the record then made, and that he refused to allow the pleadings filed after submission. In passing upon the issue thus joined in that proceeding, we said: “Bach side has filed ex parte affidavits here on the issue of fact as to whether or not the additional pleas were tendered by petitioner before or after the actual submission of the cause. Permission of the court to a litigant to file pleas or other motions out of time is, or mav he, according to the circumstances, a matter of discretion with the trial court, and the rule has quite frequently been announced by this court that a writ of mandamus cannot be used as a substitute for appbal, nor will the discretion of the trial court be controlled by mandamus. "Where the trial judge refuses to act at all in the matter, this court may compel him by mandamus to do so, but, as before stated, it will not attempt to control the discretion of the trial court or to determine what the discretion of the court shall be. The court may or may not have erred in refusing to allow additional pleas to be filed, but any error committed in that respect must be corrected by appeal. Errors of the trial court in the progress of a case must be shown either by a bill of exceptions or by recitals made by the court on its record. If those methods of completing the record be denied by the trial court, a statutory remedy is afforded by bill of exceptions certified by bystanders. The fact that petitioner let the term of court elapse without effort to obtain a bill of exceptions in either of the modes specified by statute, affords no ground for allowing the extraordinary writ of mandamus.”

Since the appellant has failed to observe the method provided by statute for bringing into this record, by bystanders’ bill of exceptions, its exceptions to the rulings of the trial court as contained in the recitals of the judgment roll, we are bound 'by those recitals. Such being the case, this disposes not only of the contention of the appellant that the cause was not submitted by consent, also of its further contentions that the cause was prematurely decided and that the intervention was improper.

The only remaining question presented by this appeal is whether or not the court erred in rendering its decree in favor of the interveners and the district. This decree is bottomed upon findings of fact by the trial court to the effect that the appellant had wholly failed to comply with its contract; that, by reason of such failure, the district had sustained damages largely in excess of its indebtedness to the appellant and largely in excess of the retained percentage. The court, after giving the appellant credit for all the work it had done under the contract, and after crediting it with the amount of the retained percentage, found that there was still a balance due the district in the sum of $190,000. It was purely a question of fact as to whether or not the appellant had breached its contract by failing to perform the work according to the plans and specifications. The testimony bearing on this issue is set out at length in the purported abstract of the appellant. As abstracted, it embraces more than 300 pages.

It would unduly extend this opinion to set out and discuss in detail the testimony bearing upon this issue of fact. It is impracticable to do so. Suffice it to say we have read and carefully considered it all, and have reached the conclusion that the findings of fact by the trial court are not clearly against a preponderance of the evidence. Indeed, the preponderance of the evidence clearly supports the findings of the chancellor to the effect that the appellant failed to comply with its contract.

The testimony of H. R. Carter, the engineer of the district, and the local engineers under Carter,' having immediate supervision of the work as same was being done, is all to the effect that the appellants did not perform the work in accordance with the plans and specifications- which were a part of the contract. The testimony of these supervising engineers and also of many witnesses who were connected with, and who had opportunities to observe, the work as it was being done, all tended to show that the work was not done according to the plans and specifications. Also W. J. Parke and C. H. Miller, both civil engineers and experts of large experience, testified that they examined portions of the road embraced in the district, and that the work had not been done according to plans and specifications, and they went into detail showing the defects and imperfections in the work examined by them.

So we are thoroughly convinced, from a careful consideration of all the evidence, that the appellant violated its contract,’and that the court was correct in so finding. Tlio court based the amount of its judgment timony and a detailed statement by tí. R. engineer of the district, as follows: on the tes-Carter, the

Work to be done:
Line A, 6 miles of base to rebuild at $1,000 per mile. $ 6,000.00
Line B, 6 miles of base to rebuild and repair at $500. 3,000.00
Line D, 5 miles base to be rebuilt, now covered by asphalt, at $2,000 .'. 10,000.00
Line D, 8 miles base damaged because of neglect in finishing, at $400 . 3,200.00
Túne E, H, I, J, 14 miles gravel repair at $300 per mile. 4,200.00
72 miles shoulder repairs, at $250 per mile. 18,000.00
60,000 yards emb. Line B, Gr. Tichnor Levy settlement. 25,000.00
152,217.68 tons on which rebate of 30c per ton is due board acct. letter attached by S. Imp. 45,665.30
91,228 sq. asphalt of cheaper brand than called for by ■ proposal, at 20c per yard. Amount due board for rock. Overtime, 350 days at $75. 18,245.60 260,000.00 26,250.00
$419,560.90
Credits retained per cent.$186,498.80
Credits on rock acct. 42,232.74 228,731.54
$190,829.36
Credits, $12,000 Perdue. 12,000.00
' $178,829.36

The trial court found., among other things, that “in the construction and work 'by the contractor and defendant, Southern Improvement Company, it did not attempt in good faith to comply with the contract,” and * * * that “the defects in the road and construction work were and are of a substantial and fundamental nature and character, and were in violation of the plans and specifications, agreements, and contract, and resulted from the gross negligence and bad faith of the contractor defendant, Southern Improvement Co., and all of these things were and are to the serious and substantial detriment and damage of said road improvement district.” There was testimony tending to support the above findings of the court to the effect that the appellant “did not attempt in good faith to comply with its contract,” and that its failure to comply with its contract “resulted from gross negligence and bad faith.” In view of these findings by the trial court, we are unable to say that the decree of the court is excessive. It appears however from the record that, since the decree was rendered, the surety company has satisfied the judgment in favor of Perdue against the appellant, and the appellant should therefore be credited with that sum. The decree of the court below will therefore be modified by reducing the same to the sum of $178,829.36, and, as thus modified, it will be affirmed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Polk v. Afflick.
    Opinion delivered May 18, 1925.

      L. Judicial sales — opening sale for increased bid. — Judicial sales will not be opened 'because bids for a greater amount are offered for the property when the report of sale is presented for confirmation.
    2. Judicial sales — reservation of right to reject bids. — Reservation, in a degree ordering a sale by a receiver of property, of the right to reject all bids offered at most authorizes the receiver to reject the bids at the time of sale, but does not authorize the court to reject the highest ibid reported ¡by the receiver and to ■accept a subsequent higher bid of another.
    RECEIVERS — ARM OF court. — A receiver in selling property ordered to be sold is the arm of the court.
    Receivers — effect of acceptance of bid. — On receivers acceptance of the highest bid at a judicial sale, the person so bidding becomes the purchaser, acquiring vested rights as such.
    Judicial sales — opening sale for increased bid. — Where a receiver reported a sale to the highest ¡bidder for confirmation, the court had no authority to set it aside and let in a subsequent higher .bidder, in the absence of a showing of the inadequacy of the first bid, coupled with fraud or other element rendering it inequitable to confirm the sale to him.
    Appeal from Phillips Chancery Court; A. L. Hut-chins, Chancellor;
    reversed.
    STATEMENT OE PACTS.
    E. M. Polk prosecutes this appeal to reverse an order of the chancery court rejecting and setting aside his bid for certain real estate sold at a receiver’s sale.
    It appears from the record that the stockholders and creditors of the "West Helena Consolidated Company, a corporation, brought a suit in the chancery court against it for the purpose of winding up its affairs as an insolvent corporation. A receiver was duly appointed by the chancery court to take charge of the assets of said corporation and to wind up its affairs. The corporation was duly adjudged to he insolvent, and the receiver was ordered to sell the property in his hands at public sale, upon the express condition that the property as a whole could he sold for an amount sufficient to discharge all of the indebtedness of said corporation.
    The first sale was set aside and held for naught. A supplemental decree was then made, in which the property of the corporation was again ordered to be sold by the receiver. It was decreed that the property should be sold in the following order:
    “First: The waterworks, all appliances, equipment, pipe, franchises, and real estate upon which said waterworks is situated.

      “Second: The street railway, including all rolling stock, right-of-way, franchises, poles, wires, buildings, machinery, appliances, and equipment used in the operation of said railway.
    “Third: All the unplatted real estate belonging to the West Helena Consolidated Company, consisting of approximately 1,800 acres of land.
    “Fourth: All lots and blocks situated in the city of West Helena, Arkansas.
    “Fifth: All no,tes, book accounts, choses in action,' including equity of redemption and all collateral of every kind, character and nature possessed,'held and owned by the said corporation.
    “It is further provided that, after the said properties had been offered in unit as above provided, the receiver shall be required to offer all of said property for sale as a whole.”
    The sale was ordered to be made partly for cash and partly on a credit,, with security to be approved by the receiver. The decree also contained the following provision: “The court reserves the right to reject any and all bids offered at said sale.” The receiver was further directed to make a report of his sale at an adjourned day of the chancery court.
    On November 26,1923, the receiver filed his report of sale. The report shows that Edwin GBevens became the purchaser of the West Helena Consolidated Waterworks; that the Home Mutual Building & Loan Association became the purchaser of the interurban railway system; that Fannie M. Hornor became the purchaser of the property that had been mortgaged to her; that J. T. Hornor, trustee, became the purchaser of certain property mortgaged to him; that E. M. Polk became the purchaser of the equity in a certain town lot for the sum of $525; that E. M. Polk became the purchaser of the lots and blocks in the city of West Helena, Arkansas, for the sum of $3,250; that John I. Moore became the purchaser of the notes and book accounts; and that 1,800 acres of unplatted real estate belonging to said corporation remained nnsold on account of no one having bid for it.
    Before the consideration of the receiver’s report by the court, G. W. Afflick filed his bid in the sum of $5,000 for all of said property except the street railway property, the waterworks, accounts and notes, and the cash in the possession of the receiver. Upon the consideration of the report of the receiver, the bids of E. M. Polk, Fannie M. Hornor, and J. T. Hornor,' for property as 'above set forth, were rejected, and the bid of O. W. Afflick therefor was received and accepted by the court. The report of sale as thus amended was confirmed by the court, and C. W. Afflick was declared to be the purchaser of the property which had been struck off, respectively, to E. M. Polk, Fannie M. Hornor and J. T. Hornor, as the highest bidders therefor at the receiver’s sale.
    From the decree confirming the sale upon the offer of C. W. Afflick, E. M. Polk has duly prosecuted an appeal to this court.

      P. R. Andrews, for appellant.

      W. R. Satterfield and J. G. Rwrke, for appellee.
   Hart, J.,

(after stating the facts). The sole question raised by this appeal is whether or not the chancerv court erred in setting aside the sale by the receiver to E. M. Polk for certain property belonging to the insolvent corporation and accepting the increased offer by 'O. W. Afflick for said property.

The record shows that E. M. Polk bid $3,250 for certain vacant lots in West Helena and $525 for the equity in a certain house and lot in West Helena. This property was struck off to him by the receiver, and'E. M. Polk complied with the terms of sale by depositing a certified check for $500 with the receiver and securing the deferred payments on said property. The 1,800 acres of rural land was offered for sale, and no one bid therefor. When the report of sale was presented to the court for confirmation, C, W. Afflick offered $5,000 for the property purchased by Polk and for the rm:al land: His bid was accepted by the court, and the sale to Polk was set aside.

Under these facts the court erred in setting aside the sale to E. M. Polk. The value of the farm land, which was not sold at the receiver’s sale, is not shown; and there is nothing in the record from which to infer that the sum bid by Polk for the property struck off to him by the receiver was inadequate. Even if this be true, the mere fact that Afflick made an advance bid for the property would not be sufficient.

The English practice treats the bidder at chancery sales in the light of one who has made an offer to be reported to the court, and, if a larger offer is made by another, the sale to the former is not confirmed. The practice of the English court of chancery in opening sales whenever an offer of a larger sum for the property is made has never been adopted in this State. Penn’s Adm’r v. Tolleson, 20 Ark. 652.

There is a uniform current of decisions in this State settling that judicial sales will not be opened because bids for a greater amount are offered for the property when the report of sale is presented for confirmation. George v. Norwood, 77 Ark. 216; Brasch v. Mumey, 99 Ark. 324; Miller v. Henry, 105 Ark. 261; Wells v. Lenox, 108 Ark. 366; and Stevenson v. Gault, 131 Ark. 397.

This principle is necessary to maintain the stability of judicial sales. In order to preserve the public confidence in the entire fairness of such sales, it has always been declared to be within the judicial discretion of chancery courts in this State to set aside such sales, where there is inadequacy of price coupled with fraud, or any other element which would amount to unfairness- and render it inequitable to confirm the sale. As we have' already seen, none of these reasons for setting aside the sale made by the receiver exists in the present case.

But it is claimed that the right existed because' the order of sale contains the following: ‘ ‘ The court reserves the right to reject any and all bids offered at said sale. ’ ’

Ill the first place, if this clause be given the broad signification claimed by counsel for appellee, it would not have given the court the right, under the authorities cited, to have set aside the sale to Polk and accepted the bid at the time made by Afflick. At most, it could have only given the court the right to have rejected the bid of. Polk.

Under the principles of law above -cited, this language could not have any greater signification than to authorize the receiver to have rejected bids made at the time of sale. The receiver was the arm of the court, and, after he accepted the highest bid made at the sale, such bidder became the purchaser, and, as such purchaser, acquired vested rights. He 'could be required to specifically perform his contract, and he acquired the corresponding right to appear and claim at the hands of the court his rights as a purchaser at the sale.

It follows that the chancellor erred in setting aside the sale to E. M. Polk, and, for that error, the decree must be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


text:
    Mays v. Missouri & North Arkansas Railroad Company.
    Opinion delivered May 18, 1925.
    CARRIERS — lien por freight charges. — A carrier has a lien on goods transported for its ¡freight charges, so long as it retains dominion and control over the goods.
    Carriers — exclusion of evidence. — In an action against a carrier for loss ‘of cotton stored in a warehouse, exclusion of evidence offered by plaintiffs to show that delivery of the cotton to the warehouse iby the carrier was for the purpose of preserving the carrier’s lien for freight is proper, where such evidence wlould contradict plaintiff’s testimony that the cotton was delivered to the warehouse in pursuance of a direction in the bill of lading.
    Carriers — act of god. — A carrier is not liable for the loss of freight caused by lightning.

      Appeal from Lee. Circuit Court; E. D. Robertson, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    Buck Mays instituted an action in the circuit court to recover the value of cotton alleged to have been destroyed by fire after being transported by the Missouri & North Arkansas Railway Company, and stored in a warehouse by it for its own benefit.
    Similar suits were instituted in the same court against the defendant by Ben Mays, and by Ben Mays and J. T. Myatt, under their firm name of Mays & Myatt. These three separate causes of action were consolidated and tried together.
    The record shows that each of the plaintiffs shipped certain bales of cotton over defendant’s line of railroad from Marshall, Arkansas, to Searcy, Arkansas. The cotton in each case was consigned to “shipper’s order,” Searcy, Arkansas, with the direction, “Notify Searcy Compress Company, at Searcy, Arkansas.” In each case, when the cotton arrived at destination, it was delivered to the Searcy Compress Company, and held by it until it was destroyed by fire, which was caused by lightning striking the warehouse of the compress company in which the cotton was stored.
    The cotton was shipped by the plaintiffs to be sold by the Searcy Compress Company for them. The plaintiffs held the bills of lading, and had received the weight sheets from the compress company showing the weights of the cotton after it had been delivered to the compress company. The plaintiffs knew that the cotton was held by the compress company to be sold for them when directed. They knew that they could get the cotton by paying the freight and delivering the bills of lading.
    The cases were tried before the court without a jury, and, from a judgment in favor of the defendant in each case, the plaintiffs have duly prosecuted an appeal to this court.

      George J. Grump and Daggett & Daggett, for appellant.

      Shouse & Rowland and R. E. Wiley, for appellee.
   Hart, J.,

(after stating the facts). Counsel for the plaintiff insist that the judgment should he reversed because the evidence adduced by them made a prima facie case in their favor, and because the circuit court erred in refusing to allow plaintiffs to offer additional testimony tending to show that the delivery of the cotton by the railroad company to the compress company was not made for the purpose of completing the contract of carriage, but was made for the sole use and benefit of the defendant in order to preserve its lien for freight charges. It is the contention of counsel for the plaintiffs that the evidence adduced, together with the offered testimony, brings the case within the principles of law decided in Southern Grocery Co. v. Bush, 131 Ark. 153. Ark. 153.

In that case the general rule was recognized to be that the carrier has a lien upon the goods transported, for its freight charges, while it retains dominion and control of the same. Under the facts of the case it was held to be a question for the jury whether the compress company acted as agent of the shipper or the railway company before the latter had given the cotton shipped a clearance. In that case the cotton was destroyed by fire; but it does not appear what caused the fire. Therefore if the compress company was the agent of the shipper, the carrier would not be liable.

Under the evidence adduced at the trial the cotton was delivered by the railroad company to the Searcy Compress Company without any reservation whatever. There is nothing in the record to show that the cotton was delivered to the compress company to be held by it for the railroad company until its freight charges were paid.

But it is insisted that the action óf the court in refusing the offered testimony amounted to a denial to the plaintiffs of the right of proving that the cotton was delivered by the railroad company to the compress company to be stored by it in its warehouse for the benefit of the railroad company.

In the first place, the excluded testimony would have been contradictory of the evidence already introduced by the plaintiffs. Under their own testimony the cotton was delivered by the railroad company to the Searcy Compress Company in pursuance of the direction of the bill of lading, and there is nothing to show that it was stored with the compress company for the benefit of the carrier, or for the carrier for the purpose of preserving its lien.

Even if it be conceded that such testimony was not inconsistent with the evidence already introduced at the trial, it cannot be said that it would have helped the case of the plaintiffs any. If it had been shown that the railroad company stored the cotton with the warehouse company for its own benefit, thereby preserving its lien, still the plaintiffs would not be entitled to recover under the undisputed facts.

The railroad company in its answer alleged that the warehouse in which the cotton was stored had been struck by lightning, which caused the warehouse and the cotton stored in it to be destroyed by fire. This was an act of God, and relieved the railroad company from any liability. St. L. I. M. & S. Ry. Co. v. Wood, 99 Ark. 363; St. L. I. M. & S. Ry Co. v. Pape, 100 Ark. 269; and Jonesboro, Lake City & Eastern Rd. Co. v. Dunavant, 117 Ark. 451.

In this case the defendant alleged that the cotton was lost by lightning striking the warehouse in which it was stored, and burning both the warehouse and the cotton. The evidence for the plaintiffs recognizes that the fire was caused by lightning striking the warehouse in which the cotton was stored. So it may be said that the plaintiffs’ own evidence shows that the loss of the cotton was due to an act of God, which was one of the causes excepted at common law from the carrier’s liability as the insurer of goods lost while in its possession.

It follows that the judgment of the circuit court was correct, and it will be affirmed.


author: Smith, J.

text:
    Killgore v. Dudney.
    Opinion delivered May 18, 1925.
    Vendor and purchaser — contract construed. — A contract whereby plaintiff agreed to sell land to defendant for a specified sum, part of wihich was paid down, does not create the relationship of landlord and tenant, nor is such contract an option to purchaser, but is a contract of sale.
    Appeal from 'Columbia 'Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      McKay & Smith, for appellant.

      Joe Jomer, for appellee. •
   Smith, J.

Appellant brought an action of unlawful detainer to recover from appellee the possession of a house and lot. When the answer was filed, the cause was transferred to equity, where there was a decree sustaining appellee’s contentions, from which is this appeal.

It is the insistence of appellant that the possession of the property was taken under an option to purchase which contained no express limitation of time within which the option had to be exercised, and which therefore had to be exercised within a reasonable time, and that, the terms of the option not having been complied with, appellee became a tenant at will. It was upon this theory that appellant prayed judgment for possession and for rents.

It appears however that appellant contracted to sell the property to appellee for the consideration of $825, of which $50 was paid in cash when possession was delivered, and the remainder was to be paid when all liens against the property had been discharged.

This balance was not paid, nor was the outstanding indebtedness, which was secured by a mortgage, discharged, and a settlement of the matter was proposed between the parties by which appellee agreed to surrender possession of the property, and arbitrators were to be appointed, who should determine the amount of rent appellee should pay in view of the improvements he liad put on the place, and the other circumstances of the case. But, before the arbitrators were appointed appel-lee decided to stand on the original contract.

There was a difference between appellant and the holder of the mortgage over the balance due on the mortgage, but appellant testified that this difference was adjusted and appellee was offered an unincumbered title on payment of the balance of the purchase money. Appel-lee testified that there was no offer to convey an unincum-bered title until the suit was brought, at which time he offered to pay the balance due. Appellee also testified that he never at any time had possession as a tenant, and never at any time agreed to pay rent, although he admitted that, at one time, there was a proposition to compromise the matter in the manner hereinbefore stated, but the negotiations for a settlement were never consummated.

The court found that appellee entered into the possession of the lot under a contract of purchase, and that appellant should be required to specifically perform the contract by making and delivering to appellee a title free from any incumbrance, and that appellee should be required to pay $775, the balance of purchase money, and interest thereon from the date he took possession, together with the taxes and insurance which appellant had paid, all of which totaled $1,138.26. Appellee was allowed ten days from the date of the decree within which to pay the sum found due, and it was decreed that, if the said sum was not so paid, a writ of possession should be swarded appellant.

The decree of the court below was correct. The relation of landlord and tenant did not exist between the parties, nor was the contract an option to purchase which was converted into a tenancy at will. The contract was not an option to purchase. The terms of the sale had been fully agreed upon, and there had been a final acceptance of these terms by both parties, pursuant to which possession of the property was surrendered and delivered. . .) ,i

The testimony is conflicting as to which of the parties made default, but the relief awarded was proper in any event. Appellant has a decree for the unpaid purchase money and interest, including taxes and insurance, and is entitled to nothing more. The decree of the court below is therefore affirmed.


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

text:
    Hines v. Consumers’ Ice & Light Company.
    Opinion delivered May 18, 1925.
    1. Electricity — failure to insulate wires — liability.—Although an electric light company is not required to insulate all of its wires, a telephone lineman having a joint right to use its poles may recover for injuries sustained through failure of the light ■company to have the wires with which he might reasonably come in contact properly insulated.
    2. Electricity — joint use of poles — complaint. — A complaint which alleges that a joint right to use a pole for transmitting-electricity existed between an electric light company and a telephone company, and that by reason of the negligence of the former in failing- to insulate its wires property a servant of the latter company was injured, states a cause of action.
    Appeal from Columbia Circuit Court; L. 8.' Britt, Judge;
    reversed.

      E. A. Upton and Henry Stevens, for appellant.

      Chas. L. Neely and McKay & Smith, for appellee.
   Smith, J.

This appeal is from a judgment sustaining a demurrer to a complaint which contained allegations to the following effect: Defendant is a corporation engaged in furnishing electricity to its patrons in the city of Magnolia, and, in doing so, maintains poles upon which wares are fastened in the various streets of the city.

Plaintiff further alleged that on August 30, 1921, he was employed as a lineman, and was engaged in stringing a telephone wire upon one of defendant’s poles upon which one of defendant’s primary wires was also strung, and “that, in stringing said wire to tie same into the said pole up which plaintiff had climbed, the same came in contact with defendant’s said primary wire while same was being used to supply current to defendant’s patrons; that, by reason of defectivo and improper insulation of defendant’s said primary wire, the said telephone wire, upon contact therewith, became heavily charged with electricity, as a result of which plaintiff was severely shocked and burned.”

It was further alleged “that, at the time of the injury complained of, he was employed in stringing the said telephone wire and the same was being strung over and tied to defendant company’s poles with its knowledge, consent and permission, and in its interest. * * '* That the injury complained of was wholly the result of defendant’s negligence and wantonness in failing to properly insulate its said primary wire, and to maintain same in a safe condition for those whose duty brought them in proximity thereto; that defendant owed plaintiff the legal duty to maintain said primary wire in a safe condition by proper insulation, but negligently failed to do so, and, by reason of such negligence, plaintiff sustained a serious injury.”

A motion was filed to require the plaintiff to make the complaint more specific by alleging in what manner the stringing of the telephone wire on defendant’s poles was in the interest of defendant, which motion was overruled. Thereupon defendant filed a demurrer to the complaint, which was sustained, and, as plaintiff stood on his complaint, the cause was dismissed.

The complaint does npt allege in what manner the stringing of the telephone wire was in defendant’s interest, and this allegation may be treated as a mere conclusion of law; but the complaint does allege that, at the time of plaintiff’s injury, he was on defendant’s pole with defendant’s knowledge, consent and permission, and that he was injured through the negligent failure of defendant to have its light wire properly insulated. Do these allegations state a cause of action?

It will be observed that the complaint alleges that plaintiff was injured in the discharge of his employment at a place where he then was with the knowledge, consent and permission of defendant.

These allegations, by fair intendment, necessarily mean that defendant knew the service in which plaintiff would be and was engaged at the time of his injury, and, as the case is being considered on the sole question of the sufficiency of the allegations of the complaint to state a cause of action, we need not consider what defenses may be available to the defendant.

We quote from the chapter on Electricity in 20 C. J. the following declarations of law which are applicable to the facts alleged in plaintiff’s complaint:

“(Section 39). Location of Wires and Appliances. The duty of exercising care extends to every place where persons have a right to be, whether for business, convenience, or pleasure, and extends to those upon the premises of consumers, and it makes no difference that the injury occurred on private property and not in a public highway, if the person or animal injured had a right to be on such private property” (Pages 345, 346).
“('Section 40). * * * Persons Invited. Where the person injured was present at the place in question by the express or implied invitation of the owner or occupant, he is neither a trespasser nor a bare licensee, and as to him the general laAV of negligence imposes the duty of exercising due care to prevent injury. Employees of independent or subcontractors engaged to do work about the premises are there by invitation within this rule” (Pages 348, 353, 354).
“(Section 50). Joint Use of Poles or Appliances and Joint Negligence. Where the negligence of one party results in injury, that party is liable, although the negligence of another contributed to the injury. If the same poles are used by several employers to sustain their respective wires, each owes to the employees of the others the duty to exercise due care not to injure them while lawfully employed about such wires” (Pages 366, 367).

In the chapter on Electricity in 9 R. C. L., at § 19, page 1210, it is said:

“19. Employees of Other Companies Making Joint Use of Same Structures. Where two companies are making a joint use of a structure to which the wires of each are attached, each should he under the same obligation to the other as persons having common rights in a place or passageway are to one another, not negligently to place a dangerous substance on the common territory where it may he reasonably anticipated that others having common rights may bo injured. Of course the purpose for which the structures are used renders some danger from electrical currents inevitable; but the danger ought to be made as small as practicable by the exercise of reasonable care.” See also Gentzkow v. Portland Ry. Co., 54 Ore. 114, 135 Am. St. Rep. 821; Braun v. Buffalo General Electric Co., 200 N. Y. 484; 34 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370; Knowlton v. Des Moines Edison Light Co., 117 Iowa 451, 90 N. W. 818.

One of the leading cases dealing with the obligation of joint users of poles upon which the wires of more than one company are strung is that of Illingsworth v. Boston Electric Light Co., 161 Mass. 585, 37 N. E. 778, 25 L. R. A. 552. This case ibas been frequently cited, as is shown by the extra annotation to this report.

The question at issue was there stated by the Supreme Judicial Court of Massachusetts in the following language: “The question, then, is, when two business corporations or two persons, under some agreement between themselves, use the same structures, owned by one of them, as supports for separate lines of wire used by each for the transmission of dangerous currents of electricity, what is the duty, at common law, which each owes to the other in regard to the care each must take to have its wires in a reasonably safe condition at or near Lite structures where the servants of the other have occasion to go in .the usual course of business, and where they must come near to, or in contact with, the wires'?”

After thus stating the question under consideration, the court proceeded to say:

“Such servants, when so employed, are more than mere licensees, taking advantage, for their own benefit, or that of their employer, of the passive acquiescence of the licensor. If they are licensees at all, the license, until it is revoked, is coupled with an interest. The two corporations or persons have, in a sense, a common interest in the maintenance and use of the structures to which the wires of each are attached, and each, we think, should be under the same obligation to the other a,s persons having common rights in a place or passageway are under to one another, not negligently to place a dangerous substance on the common territory, where it reasonably may be anticipated that others, having common rights, may be injured by it. The purpose for which the structures are used renders some danger from electrical currents inevitable, but the danger ought to be made as small as is practicable by the exercise of reasonable care. In the absence of any agreement on the subject, other than what is involved in the permission of the owner of the structures to the other to use them in common for the support of electric wires, on paying Some compensation, we are of opinion that the duty of the owner of the structures is to exercise reasonable care in seeing1 that his wires are kept, so far as is practicable, in a safe condition at such places as the servants of the other are expressly or impliedly licensed to go in performing their duties with reference to the wires .attached to such structures. ”

After thus declaring the law, it was said that there ■ was in that case evidence for the .jury that the defendant was negligent in leaving two joints of its wire without insulation, within twelve or fifteen inches of the .frame, up which the plaintiff, in the course of his duty, as a person employed in the fire-alarm service of .Boston, was required or expected to go.

Another case which we find, in our investigation of the authorities, has been frequently cited, and which is extensively annotated in 45 L. R. A. (N. S.) 303, is that of Denison Light & Power Co. v. Patton, 105 Tex. 621. There an electric light company knew that an employee of a telephone company had made use of one of the light company’s poles to repair the telephone line which overhung the light company’s wires at that point, and had not completed the work, and there was reason to believe the workman would return on the following day to complete the repair. The servant of the telephone company was burned while making these repairs, and a judgment in his favor was reversed by the Supreme Court of Texas, but this was done because the injured servant was a mere licensee under the facts of that case.

The court announced principles, however, which are applicable here, and it was there said: £iIn all such cases the relationship between the parties determines the measure of the duty, and this question must be resolved by ascertaining the relation that existed between Patton and the light company at the time of the injury. Patton was the employee of the telephone company, and, at the time, engaged in a work that was solely for its benefit. To perform that work, he made use of the light company’s property in going upon its pole, placing the telephone cable upon a cross-arm attached to it, and suspending his platform beneath the cable in this situation, so as to bring himself in contact with the light company’s Avires. The dangerous situation was produced by himself, and resulted from the use he made of the light company’s property. If Patton had the right to make such use of the property, a relationship was created that imposed upon the light’ company the duty of exercising care to protect him from injury that might result from turning an electric current on its wires. But, under the settled law of this State, the owner of premises is under no general duty to exercise care to make them safe for the use of others coming thereon without authority, invitation, or allurement” (citing eases ).

It was there also- said: “A reasonable belief on Sammon’s part (the manager of the light company) that he (the servant) would probably return to this place on the morning in question to resume his work for the telephone company was therefore not sufficient to charge the light company with the duty 'of exercising care to make its property safe for his prosecution of that work. The owner of a structure of this character is not required to make its legitimate use subservient to-that of others who go upon it without authority or invitation, for purposes of their own, as would be the case if he is bound to anticipate the presence of such persons upon his property, and, on that account, is under a duty to use it, not in its ordinary way, but only in such manner as not to injure them. In the' use of his property the owner is under a duty to exercise due care for the safety of those rightfully upon the premises; that is, those who are there by authority or invitation, or because of allurement. In our view, the charge(of the trial court to the jury)was erroneous in applying this rule to the light company, regardless of whether the plaintiff, at the time of his injury, was rightfully upon its property, or was making an authorized use of it.”

In the notes to the test quoted, the annotator says that “the following cases announce the rule that a company maintaining wires over which a dangerous current of electricity passes upon a pole used jointly by others is bound to know that linemen of the other companies may come in contact with its wires, and must use reasonable care in insulating such wires for their protection. (Citing numerous cases).”

There is involved here no question about the duty of the electric light company to insulate all its wires. The authorities appear to be unanimous in holding that there is no such duty, but the cases do hold, as we understand them, that this duty must be performed, or other' sufficient safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated.

The law is stated in 9 E. C. L. at § 21 of the chapter on Electricity, on page 1213, as follows:

“21. Insulation at Particular Points or Places.— It is only reasonable that the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires, and the law does not compel electric companies to insulate their wires everywhere, but only at places where people may go for Work, business, or pleasure, that is, where they may reasonably be expected to go.”

In other words, there is no duty to insulate or to take other precautions to prevent contact except at such places as persons have a right to go and whose presence at these points of contact should reasonably be anticipated.

The defendant company was under no more duty than any other property owner to make its premises safe for a trespasser or a mere licensee. The duty to such persons is to inflict no wanton injury after discovering their presence.

Here we interpret the allegations of the complaint to be that a joint right to the use of the pole in question had been conferred, and, if this is true, plaintiff was neither a trespasser nor a licensee. If a right to the joint use of the pole had been conferred, defendant should have ¡anticipated that this right would be exercised, and that its exercise might bring some employee of the telephone company in contact with the wires carrying the electric light current.

We cannot anticipate what facts may be developed by the testimony upon the trial of the cause on its merits, but, under the allegations of the complaint, we think there is a prima facie charge that plaintiff was negligently exposed to á danger from which he should have been protected.

The court was iu error therefore in sustaining the demurrer to the complaint, and the ' cause will be remanded with directions to overrule the demurrer.

McCulloch, C. J.,

(dissenting). The law is well settled that one who goes upon the premises of another, not as an employee or as 'inviteé, but merely as a licensee, takes his license with its concomitant perils, and that the owner owes him no affirmative' duty of protestation; the measure of the owner’s duty being merely the negative one to do no act to cause injury after the presence of the licensee is discovered. St. L. I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489; Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278; St. L. M. & S. Ry. Co. v. Pyles, 114 Ark. 218; C. R. I. & P. Ry. Co. v. Russell, 136 Ark. 365; Mitchell v. Ozan-Graysonia Lbr. Co., 151 Ark. 6; Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423. This rule of law applies to the use of electricity the same as to other dangers — there are no exceptions as to the character of danger.

It devolved on the plaintiff in this case to.set forth in his complaint a state of facts which imposed on, the defendant the duty to exercise care to protect, him from danger, and he has failed to allege any such state of facts. The statement that at the time of plaintiff’s injury the wire “was being strung over and tied to defendant company’s poles with its knowledge, consent and permission,” was not sufficient to show that .plaintiff was an employee of defendant. The complaint specifically alleged that plaintiff was an, employee of the telephone company when he climbed the poles of defendant to string the wires of his employer. He, was therefore not an employee of defendant, and the “consent and permission” by defendant for plaintiff to string the wire over the poles and tie it to the poles did not constitute an invitation to so use the poles. Mere permission amounted. to no more than ' a license. In order for plaintiff to make himself out to be an invitee, he should have stated the facts upon which the relation between1 him and defendant rested. If there existed a Contract'between plaintiff’s employer, the telephone company, and defendant whereby the latter, for a consideration, permitted the former to use the poles in stringing telephone wires, then; plaintiff was more than a 'mere licensee. But no such state of facts is set forth in the complaint.

My conclusion is that the demurrer was properly sustained.

Mr. Justice Wood joins in this dissent.


author: Humphreys, J.

text:
    Standard Shingle Company v. Berry.
    Opinion delivered May 18, 1925.
    Logs and logging — agreement to pay taxes — effect.—A provision in the habendum clause of a deed conveying cypress timber that, in case the grantee shall require a longer period than five years to cut and remove the timber, he “underbakes and agrees that he will pay all taxes assessed against the lands upon which the cypress is situated” held to be a covenant to pay the taxes, and not a condition upon which the timber might be cut and removed.
    Appeal from Woodruff Chancery Court, Southern District; A. L. Hutchins, Chancellor;
    reversed.

      Colemam & Gantt and Roy D. Campbell, for appellant.

      Ross Mathis and J. F. Summers, for appellee.
   Humphreys, J.

These cases were consolidated in the chancery court of Woodruff County, where brought, for the purposes of trial. Cross & Shields’ case against W. C. Berry et a/.'was to enforce a vendor’s lien for the balance of the purchase money alleged to be due them for timber on a 4,300-acre tract of land in Woodruff County, known as the G-ross & Shields lands, and to question Berry’s claim to the timber standing or fallen upon said land.

The suit of Berry et al. against the Standard Shingle Company et al, was to enjoin the Standard Shingle Company from cutting cypress timber upon said lands and from removing cypress timber therefrom which had been cut and not removed, and for an accounting of that which had been cut and removed. Berry claimed title to the timber under two timber deeds of date March 6,1923, one from H. T. Witwer and wife, and the other from H. E. Kimmel and wife, conveying to him all their right, title, and interest in and to the timber of all kinds, standing or fallen, on the Gross & Shields lands in said county, particularly describing them. It was alleged that H. T. Wit-Aver had acquired said lands from the Cotton Plant Timber and Logging Company on January 26, 1918, who, in turn, had acquired them by conveyance from Cecil Gross and W. D. Shields, and that H. E. Kimmel was interested with H. T. Witwer in the purchase of a part of the land. It was also alleged that Gross & Shields had released their vendor’s lien on the standing timber on said lands, and that, while the Cotton Plant Timber and Logging Company had conveyed the cypress timber on said lands to R. J. Carter, the Standard Shingle Company’s predecessor in title, yet Carter and his predecessors in title had forfeited all right to the cypress timber by failure to pay taxes on the lands in accordance with the terms of their timber deed.

The Standard Shingle Company, a partnership composed of E. H. Elsberry and R. Carnahan, filed an answer denying that it forfeited the right to remove the timber by failure to pay the taxes upon the lands, and a cross-bill alleging that it owned the cypress timber on said lands under a timber deed from W. W. Carter, in his own right and as administrator of A. J. Carter, deceased, to E. H. Elsberry and R. Carnahan, of date April 10, 1918, R. J. Carter having purchased same from the Cotton Plant Timber and Logging Company on May 15, 1916; and praying for judgment against W. C. Berry in.the sum of $1,250, the alleged value of the cypress timber which he had cut and removed from said lands.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a finding that J. W. Berry was the owner of the cypress timber on said lands, and entitled to the value of the timber cut and removed therefrom on and after September 21, 1923, the day he recorded bis timber deed from H. E. Kimmel and H. T. Witwer, and to an order restraining the Standard Shingle Company from removing or molesting the standing or fallen timber; also a finding that the bill of Cecil Cross and W. D. Shields should be dismissed for the want of equity. The decree was rendered in accordance with the finding, from which an appeal has been duly prosecuted to this court.

Aside from the pleadings, the record consists chiefly of the deeds in the chain of title of the respective parties back to the common source of title, and the testimony introduced responsive to the issue as to the amount and value of timber cut and removed by the respective parties from said lands.

The question presented for determination by the appeal is whether the 'Standard Shingle Company forfeited its right to remove the cypress tittiber from said lands on account of the alleged failure of itself and its predecessors in title to pay taxes on the lands. This must depend upon the effect to be given the following provision contained in the timber deed from the Cotton Plant Timber and Logging Company to R. J. Carter, of date May 15,1916:

“It is agreed that, in the event the party of the second part shall require a longer period than five years to cut and remove the timber herein conveyed, the said party of the second part undertakes and agrees that he will pay all taxes assessed against the lands upon which the cypress is situated as the timber herein conveyed, it being understood that, in no event, shall any payment or payments of taxes on the lands aforesaid in any wise convey any title to the lands in question to the party of the second part herein.” The provision appears in the habendum Clause of tlie deed, and is clearly a covenant to pay the taxes on the land, and not a condition upon which the timber might be cut and removed. There is nothing in the language of the provision to indicate that the nonpayment of taxes on the lands should work a forfeiture of the right to remove the timber. It is a promise, nothing more, on the part of the grantee to pay 1he taxes at the expiration of five years from the date of the deed on all lands from which the cypress timber had not been cut and removed. Had it been intended that the title to the timber should revert to the grantor upon a failure to pay the taxes on the lands, after five years, upon which the timber was still standing, it would have been an easy matter to express it in the deed. Bain v. Parker, 77 Ark. 168; Earl v. Harris, 99 Ark. 116; St. L. S. W. Ry. Co. v. Curtis, 113 Ark. 92; Terry v. Taylor, 143 Ark., 208 School Dist. of Newport v. Holden Land & Lumber Co., 149 Ark. 213. This deed was prior in time to the deed from the Cotton Plant Timber and Logging Company to IT. T. Witwer, the predecessor in Berry’s title, anti the court erred in construing the provision therein with reference to the payment of taxes as a condition upon which the timber might be removed.

We are unable to determine from the record the amount and value of the timber removed from the land by Berry. This feature of the case was not fully developed.

The Standard Shingle Company was entitled to the dismissal of Berry’s bill and to a judgment against him for $917.50, the value of the timber which he cut on the premises, and an order restraining Berry from cutting or removing any timber from the lands.

The decree is therefore reversed, and the cause remanded with directions to determine the amount and value of the cypress timber removed from the land bv Berry and to render a decree in accordance with this opinion.


text:
    Stephenson v. Grant.
    Opinion delivered May 18, 1925.
    1. Subrogation — advance op money to discharge vendor’s lien.— One who advances money to pay off an incumbrance on land, such as a vendor’s lien, at the owner’s instance is not a volunteer.
    2. Subrogation — prior lien — culpable negligence. — The agent of a person advancing money to the owner of land to discharge a vendor’s lien, who inquired of the owner whether any other liens existed against the lands and received a negative reply was hot chargeable with culpable negligence in not discovering the existence of a mortgage lien against such property which an examination of the records would have disclosed.
    3. Subrogation — advancing money to discharge lien. — One who advances money to pay off prior incumbrance on realty, at the instance either of the owner of the property or the holder of the incumbrance, either on the express understanding, or under circumstances from which an understanding, will1 be implied, that the advance made is to be secured by a first lien on the property is not a mere volunteer; and in the event the new security is for any reason not a first lien on the property, the holder of such security, if not chargeable with palpable and inexcusable neglect, will be subrogated to the rights of the prior incumbrancer under the security held by him.
    Appeal from Chicot Chancery Court; E. Q. Hammock, Chancellor;
    affirmed.

      Streett & Burnside, for appellant.

      Cook & Trice and W. W. Grubbs, for appellee.
   Humphreys, J.

This is an appeal from a decree of the chancery court of Chicot County wherein Mrs. E. P. Gaddis was subrogated to Friedlander & Oliven Company’s lien for the balance of the purchase money, amounting to $452.46, on a sale of a certain forty-acre tract of land by it to Turner Grant, and for taxes she had paid on the land in the sum of $85.31. The correctness of the decree allowing Mrs. Gaddis to be subrogated to the rights of Friedlander & Oliven Company to the extent of its vendor’s lien is challenged, but not for taxes paid by her on the land.

Friedlander & Oliven Company sold and conveyed the land to Turner Grant on March 2, 1918, reserving a lien in the deed to secare the balance of the parchase money, evidenced by fonr promissory notes in the snm of $137.50, bearing interest at the rate of 6 per cent, per annnm from date nntil paid, dne respectively on the first day of December in the years 1918,1919, 1920, and 1921. On the first day of April, 1919, Turner Grant and his wife executed a mortgage on the land to W. H. Stephenson to secure an indebtedness to him of $400, evidenced by a promissory note in said sum, due and payable on November 1,1919, and to secure future advances to them, subject to Friedlander & Oliven Company’s lien for the balance of the purchase money. Turner Grant paid one of the lien notes, and afterwards applied to B'. L. Boss, cashier of the Merchants’ & Planters’ Bank of Eudora, Arkansas, for a loan of $1,000 with which to pay the others, and to build a house upon the land. The bank did not want to make a long-time loan, so the cashier agreed to take the loan for Mrs. Gaddis, whom he represented, with the understanding that the lien notes should be paid out of the loan and the lien released, having been informed by Turner Grant and believing that the notes for the purchase money constituted the only lien against the land. Turner Grant then inquired of Mr. Connerlv, Friedlander & Oliven Company’s local agent, whether the bank would have the first lien if he borrowed the money from it to pay the vendor’s lien notes, and was informed that it would, as the notes would be assigned to the party who loaned him the money to pay off the lien. Thereafter he requested Connerly to procure the lien notes and a release of the lien from Friedlander & Oliven Company. Turner Grant and his wife then executed four notes for $250 each to Mrs. Gaddis, and secured same by a mortgage on the land. When the notes and a release were procured, the release deed and mortgage to Mrs. Gaddis were simultaneously filed of record, and the following notation was made on the face of the three Friedlander & Oliven Company’s notes, viz:

“Paid 10-16-1919, by Mrs. E. P. Gaddis.”

The duplicate deposit slip given to Turner Grant from Mrs. Gaddis is as follows:

“Loan.$1000.00 '
Less F. Oliven note. 452.46
$547.54
Less'interest (should be insurance). 81.78
Recording fee, revenue stamps and mtg. fees . 7.75
$458.01.”

There is a dispute in the testimony as to what disposition was made of the. Friedlander & Oliven notes after Mr. Ross made the notation quoted above on the face of the notes. Mr. Ross testified that, according to his recollection, he filed them away with the notes and mortgage to Mrs. Gaddis. Turner Grant testified that the three notes were turned over to him by Mr. Ross. However, the following question and answer appear in his testimony:

“Q. Now, when did you recall that Mr. Ross gave you these three notes I A. Now, Mr. Grubbs, if I make no great mistake, it really seems to me that these notes were turned over to me when this loan was closed.”

Mr. Ross testified that it was his understanding that Mrs. Gaddis was getting the first lien on the forty-acre tract of land when the loan was made, and, while Turner Grant testified that there was no contract or understanding about it before or at the time the loan was made, the following question and answer appear in the testimony:

“Q. You said in your cross-examination that you intended Mr. Ross to have the same rights that Fried-lander & Oliven Co. had. Did you intend Mr. Ross to have any greater rights than Mr. Stephenson? Which was first, the one to Mr. Ross or the one to Mr. Stephenson ? A. The .one to Mr. Ross. The Friedlander & Oliven Company was ahead of Mr. Stephenson. Mr. Stephenson would have second mortgage.”

The mortgage to W. H. Stephenson was on record when Turner Grant and wife executed the mortgage for $1,000 to Mrs. Gaddis, but neither she nor her agent actually knew of the existence of the Stephenson mortgage. At the time Turner Grant applied to Mr. Ross for the loan, he asked him whether the Friedlander & Oliven Company’s loan was the only lien on the land, and Grant informed him that it was.

Appellant insists that, because there was no express agreement that Mrs. Gaddis should be subrogated to the rights of Friedlander & Oliven Company when she advanced the money to pay the lien, and because the lien of Friedlander & Oliven Company was released instead of being assigned to her, she is not entitled in equity to be subrogated to the company’s rights. Mrs. Gaddis was not a volunteer. Rodman v. Sanders, 44 Ark. 504. She was requested by the debtor to pay the vendor’s lien, and it is fairly inferable from all the facts that she, through her agent, and Turner Grant intended at the time that she should have the first lien upon the land to the extent of the vendor’s lien she was to pay. Her agent was not censurably negligent, for he asked Turner Grant whether Friedlander & Oliven Company’s lien was the only lien against the land, and received information from him that it was. It is true that he could have discovered Stephenson’s mortgage, had he gone to the record, but, in view of the fact that he made inquiry as to whether there were other liens, culpable negligence cannot be charged to him. Words & Phrases, Second 'Series, p. 1174. .Stephenson’s rights were not prejudiced by the decree allowing Mrs. Gaddis to be sub-rogated to the rights of Friedlander & Oliven Company. Stephenson only had a mortgage subject to its lien for the purchase money, and there is no showing in the evidence that he furnished more to Turner under the ‘‘future advance” clause contained in the mortgage than lie otherwise might have done had the vendor’s lien not been released of record. In effect, his condition was. improved by the loan made by Mrs. Gaddis to Turner Grant, as almost one-half the money was used to make valuable improvements upon the land for which she was not given a first lien in the decree. These improvements enhanced the value of Stephenson’s security.

The rule of law applicable to cases of this kind is ivell stated in a foot-note on page 473 of 37 Cyc. It is as follows: “One who advances money to pay off an incumbrance on realty, at the instance either of the owner of the property or the holder of the incumbrance, either on the express understanding or under circumstances from which an understanding will be implied, that the advance made is to be secured by a first lien on the property, is not a mere volunteer; and, in the event the new security is, for any reason, not a first lien on the property, the holder of such security, if not chargeable with culpable and inexcusable neglect, will be subrogated to the rights of the prior incumbrancer under the security held by him, and to this end equity will set aside a cancellation of such security, and revive the same for his benefit.”

In discussing the equitable doctrine of subrogation, it is said in 37 Cyc. p. 365, that “its basis is a doing of complete, essential, and perfect justice between all the parties without regard to form, and its object is the prevention of injustice;” and, at page 371, that “generally, where it is equitable that a person, not a mere stranger, intermeddler, or volunteer, furnishing money to pay a debt should be substituted for or in the place of the creditor, such person will be so substituted.”

We think the facts in the instant case are sufficiently similar to the facts in the case of Southern Cotton Oil Company v. Napoleon Hill Cotton Company, 108 Ark. 555, for it to be ruled by that case. We also cite the ease of Blevins v. Rogers, 32 Ark. 258, in support of the conclusion reached by us.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Franks v. State.
    Opinion delivered May 25, 1925.

      1. Rape — sufficiency OF evidence. — Evidence held sufficient to sustain a verdict of guilty of assault -with intent to rape.
    2. CRIMINAL LAW — EXCLUSION OF EVIDENCE — HARMLESS ERROR. — In a prosecution for rape, there was no reversible error in refusing to permit accused to interrogate State’s witness, for the purpose of affecting his credibility, as to his having had intercourse with the prosecutrix on the morning after the alleged offense, where such fact was proved by the prosecutrix, especially where the witness bad thoroughly discredited himself.
    3. Criminal law — instruction not prejudicial when. — In a prosecution for rape, even though the testimony of the prosecu-trix was that sexual intercourse was fully consummated, a charge of the court on assault with intent to rape was not prejudicial, as it operated to accused’s benefit.
    4. Rape — instruction—weight of evidence. — In a prosecution for rape, an instruction that, while the prosecutrix should have offered such resistance as she might to prevent the defendant from effecting his purpose, the extent of such resistance is to be determined by the situation of the parties, the age of the prosecutrix, and whether she was acting under the influence of fear, held not on the weight of the evidence.
    Appeal from' Sevier Circuit Court; B. 1£. Isbell, Judge;
    affirmed.

      June B. Morrell, J. S. Steel and George B. Steel, lor appellant.

      II. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted by tlie grand jury of Sevier County for the crime of rape, alleged to have been committed on the person of Lenora Gill, a girl about thirteen years of age. On the trial of tlie cause the jury found the defendant guilty of assault with intent to rape, and fixed bis punishment at twenty-one years in the penitentiary.

It is earnestly contended in the first place that the evidence is not sufficient to sustain the verdict.

The girl, Lenora Gill, and the appellant were related hv marriage — her sister being the wife of a brother of appellant’s wife. The girl lived with her mother in the same neighborhood with appellant and his wife, and was accustomed to visit at their home.

The crime was said to have been committed on or about July 1, 1924. This was during the peach harvest, and the girl, together with another girl related to her, Dixie Jackson by name, was staying at appellant’s home to help harvest peaches. The girl testified that, during the evening, about dark, appellant requested her and Dixie Jackson to accompany him out to the edge of a thicket near the house to gather some wood, and that, when they got out in the edge of the thicket, appellant, in the presence of Dixie Jackson, seized her and threw her down, and had sexual intercourse with her, forcibly and against her will. She testified that she cried and fought him_ and made every effort to get him to desist, but that he consummated the act of sexual intercourse. She testified that she remained at the house of appellant two or three days, and then went back home, and that she did not tell anybody about it until she started to school about a week later, when she told her mother. She testified also that, early the next morning after the crime was committed, appellant and an associate, Charlie Busbee, took her and Dixie Jackson in a car over to appellant’s mother’s home, ostensibly to peel peaches, but did not remain there, and brought them on back towards his (appellant’s) home, and stopped the car in the woods, and that appellant turned her (witness) over to Charlie Busbee, who had intercourse with her forcibly, and that appellant took Dixie Jackson aside for a short distance, the inference being from the statement that he had intercourse with her.

Dixie Jackson testified, in corroboration of the testimony of Lenora Gill, that she was present at appellant’s house on the night in question, when she and Lenora accompanied appellant, at the latter’s request, into the thicket, and that appellant had intercourse with Lenora, forcibly and against Lenora’s will- She testified that she heard Lenora crying and telling appellant to quit.

Tlie State introduced Charlie Busbee, who, it was shown, was confined in jail on the charge of assaulting one of these girls, and he testified that, on the night appellant is said to have committed the rape on Lenora Gill, he was at appellant’s house; that appellant and the two girls started out into the woods to gather wood with which to cook supper, and that he started with them; that .appellant objected to his going, and that, as they returned, one of the girls was laughing, and said that she knew something on Lon (appellant), and that appellant afterwards told him that he had “had dealings with the girl before.” On cross-examination, counsel for appellant asked the witness if he did not have intercourse with Lenora Gill the morning after this occurred, and, on objection of counsel for the State, the court excluded the question, and appellant’s counsel then offered to prove by this witness that he had had sexual intercourse with Lenora Gill that morning as well as on other occasions. This testimony was offered, as stated by counsel for appellant, “for the purpose of showing his interest in this case and affecting his credibility as a witness.”

Appellant testified in the case, and denied that he assaulted either of the girls or that he had ever had sexual intercourse with them. He stated that, on the night in question, he went out into the thicket, a short distance from his home, about dark, for the purpose of getting wood; that the girls did not accompany him, at least that they did not get out into the thicket where he was, and that he was in full view of the house all of the time, and made no attempt to assault either of the girls.

There was testimony relating to the examination of the girl shortly after the alleged commission of the crime, and her condition at that time. The physician who 'examined her parts testified that there was an a.ppearance of her having been entered shortly before the time of the examination.

The testimony was sufficient to sustain the verdict.

It is next contended that the court erred in refusing to permit appellants to interrogate witness Busbee, í'or the purpose of affecting' the latter’s credibility as a witness, as to whether or not he had had intercourse with Lenora Gill on the morning after the alleged commission of the crime set forth in the indictment. Witness Busbee had shown himself so untrustworthy by his own statements while on the witness stand that it is difficult to see how he could have been any more thoroughly discredited. lie admitted that he had changed his testimony from the statements he had previously made to appellant’s counsel, and made a different statement to the prosecuting attorney,- for the reason that he had ‘ ‘ seen where it would be to my benefit to change my mind.” But, even if proof of Busbee having had sexual intercourse with Lenora Gill would have had any tendency to affect his credibility, under the circumstances, there was no prejudice in excluding the witness’ own statement of that fact, for the State had already proved by Lenora Gill herself that Busbee had had intercourse with her on the morning after the commission of the alleged crime by appellant. The State having proved that fact by its own witness, it was unnecessary to take up any further time in having the witness to narrate the event. We think therefore that the ruling of the court had no material bearing upon the trial of the issues, and did not constitute reversible error.

The court gave an instruction, over appellant’s objection, submitting the issue as to guilt of the crime of assault with intent to rape. It is contended that this was error, as there was no testimony tending to establish a mere ¡assault, the prosecuting witness having testified that the act of sexual intercourse was fully consummated. Even if it be conceded that there was no ground for reducing the degree of the offense, if the testimony of the- girl was believed, still there was no prejudicial error in giving the instruction, for it was for appellant’s own benefit, and enabled the jury to find him guilty of a lower degree instead of the higher degree. In order to find the defendant guilty, it was necessary, as the court instructed, to find that appellant had assaulted the girl with intent to rape her, forcibly and against her will, and it must be assumed that the jury found those facts beyond a reasonable doubt in returning a verdict to that effect. If the testimony of the girl and other witnesses introduced by the Staté failed to convince the jury beyond a reasonable doubt that appellant was guilty, the verdict would not have been returned, and the fact that the jury, under this instruction, found for the lower .offense of assault, operated to appellant’s benefit, and he cannot complain.

It is insisted that the following instruction, given over appellant’s objection, was errqneous:

“14. The court instructs the jury that, while the law requires the prosecuting witness should have offered such resistance as she might to prevent defendant from effecting his purpose, the extent of such resistance is to be determined by the situation of the parties at the time, the mature and immature age of the prosecuting witness at the time, and whether or not she was acting under the influence of fear.”

The argument is that this instruction constituted one on the weight of the evidence. We cannot agree that such was the effect of the instruction. The court gave the following instructions on that subject at the request of appellant:

“10. You are instructed that a mere pretense at resistance by the said Lenora Grill is not sufficient, but that resistance upon her part must have been in good faith, and she must have used all the means within her power consistent with her safety, and, pnless you find from the evidence that she used all the means within her power consistent with her safety, up to the time when the act of sexual intercourse was actually accomplished, if it was accomplished, it will be your duty to find the defendant not guilty.”
“20. In the event that you should find that there was no outcry and that no complaint was made for some time after the alleged occurrence, you may take this into consideration as a circumstance as to whether the alleged intercourse was liad violently and against tlie will, of Lenora Gill.”

The instructions as a whole correctly submitted the issues to the jury. . •

Finding no error in the record, the judgment is affirmed.


text:
    Green v. Green.
    Opinion delivered May 25, 1925.
    1. Divorce — continuing control over alimony. — A continuing order for the payment of alimony remains within the court’s control from time to time, to be altered according to changes in the circumstances of the parties.
    2. Divorce — finality of decree for alimony.- — A decree for an accrued sum as -alimony ¡becomes final with the end of the term, ■ánd cannot be set aside at a subsequent term, even though found to he erroneous.
    Appeal from Garland Chancery Court; J. P. Henderson, Chancellor;
    reversed.

      B. G. Davies, for appellant.

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

On August 30, 1923, the chancery court of Garland County rendered a decree in favor of appellant, against appellee, for divorce and alimony. The decree in appellant’s favor was for the recovery of a monthly allowance of twenty-five dollars, running baclr to the commencement of the action on March 10,1919, and the court decreed the recovery of all of the accrued sums, aggregating $1,325. The court ordered the commissioner to sell certain impounded personal property belonging to appellee for the purpose of satisfying the decree in appellant’s favor. At the next term of the chancery court the commissioner reported the sale of the impounded property for the sum of $500, and the court approved the sale and ordered the distribution of the fund. The court ordered that all of the funds except the sum of $158, which was reserved in the hands of the commissioner subject to further orders of the court, be paid over to appellant and her attorney, which was done. This order was made on December 17, 1923. Thereafter appellee filed a petition asking that the court set aside the order of allowance of alimony, and appellant filed a response, and, on February 18, 1924, the court rendered a decree directing the clerk to pay over to appellant the balance of $158 in the hands of the commissioner, and that, “upon the receipt of the same, the said cross-complainant discharge all judgments and allowances against the plaintiff, Frank J.'Green, in her favor, on account of alimony or allowances and for all future allowances, the payment of the said sum being a full and complete settlement between them.” In other words, the court, in the last decree, remitted the unpaid amount adjudged in favor of appellant and against appellee at the former term of court. This appeal has been prosecuted in apt time by appellant from the last decree.

It is insisted by counsel for appellee that appellant waived her right of appeal by obtaining an order from this court dismissing his (appellee’s) appeal from the same judgment. The answer to that contention is that the motion of appellee to dismiss related to an appeal from the original decree of the court rendered on August 30,1923. The records of this court under date of May 19, 1924, show that the present appellant moved to dismiss the appeal of appellee, Frank J. Green, from the decree of the court rendered on August 30, 1923, and, as the transcript had not been filed within six months so as to give the court jurisdiction, there could be no affirmance r>f the judgment, but that the appeal would be dismissed, and this was done. The present appeal by appellant, Nona Green, is from the last decree of the court, rendered on February 18, 1924. By that decree the court undertook to remit the balance of the amount of alimonv decreed to appellant at a former term of the court. A continuing order of court for the payment of alimony remains within the control of the court from time to time, to be altered according to changes in the circumstances of the parties. A decree rendered for an accrued sum becomes final with the end of the term and cannot be set aside at a subsequent term, even though found to be erroneous. In that respect it is the same as any other judgment or decree of a court of record.

The court having rendered a decree in favor of appellant, she was entitled to have it enforced, and it was beyond the power of the court to set it aside. The court should therefore have ordered the commissioner to pay over to appellant the balance in his hands, and appellant is entitled to process of the court to enforce payment of the remainder of the amount formerly decreed.

The cause is therefore reversed, and remanded for further proceedings not inconsistent with this opinion.