text:
    Arkansas Drilling Company v. Gross.
    Opinion delivered May 27, 1929.

      Buzbee, Pugh & Harrison and John M. Shackleford, for appellant.

      MeRae & Tompkins, for appellee.
   Mehaffy, J.

This suit was commenced in the Ouachita Circuit Court 'by the appellee, who alleged that, while in the employ of the appellant, he was injured by reason of appellant’s negligence. There was a verdict and judgment in favor of the appellee for $5,000, from which an appeal has been duly prosecuted. The injury was alleged to have occurred on the 15th day of July, 1928, and the case was tried on December 7, 1928.

The appellant was engaged in drilling an oil well in Ouachita County, and had a crew of men working under the direction of one Louis St. Vine, as driller or foreman. The appellee was a member of this crew. The floor of the derrick is about 24 feet square. The hole which the drillers are drilling is about the center of the derrick floor. A steel pipe, called drill-stem, is used in drilling a well, and the • drill-stem consists of pipes about twenty feet long, which can be joined 'together. When two lengths of pipe are joined together, it is called a double. When four lengths are connected, it is referred to as a fourble. Sometimes a four-inch pipe is used, and sometimes a two and one-half. The pipe being used at the time of the injury to appellee was a two and one-half inch pipe. This pipe is much more limlber and sways much more than a four-inch pipe.

The only question with reference to negligence or liability of the appellant is whether the driller, in ordering the derriclonen to push the drill-stem forward before it was picked up by the line, and the action of the derrickman in complying with this order was negligent. This is the only question of negligence submitted to the jury'by the court, and is therefore the only question’ to be considered here.

If pushing the drill-stem forward before it was picked up by the line was negligence, the appellant is liable; if this is not negligence, the appellant is not liable. There is no question of contributory negligence or assumption of risk, and there is no dispute about the fact that appellee was injured.

Appellant contends that there is no evidence of negligence, and that the court should have directed a verdict for the defendant. It is .contended that other drillers adopted the same method used by appellant, and that it was simply a question of judgment, and it is argued that no one is liable for an error in judgment. It contends that, if there were two methods by which the work could have been done, and the appellant, in consequence of a mere error in judgment, adopted a method which resulted in the injury, it is not liable. And it is also contended that the proof shows that the method of performing the work at the time of the injury was the method used by other drillers, and that this was all that could be required of the appellant.

On the question of the manner in which the work was done at the time, the derrickman, Paul Martin, testified that he had been working in ,the oil fields since 1922; that the derrick was 112 feet high; that there is a double board in the derrick where the man stands to latch the elevators and unlatch them in. taking two joints of pipe out or in the hole. The derrickman sometimes has to stand on the double board. He also testified that, when you use two and a-half inch pipe, the double board has a finger-board on it. Where you use a four-inch pipe, it doesn’t, but is on the fourble board. It is necessary to use finger-board when you use two and one-half inch pipe, because it is limber, and the handling of it would be impracticable if you did not use the fingerboard. They were using two and one-half inch pipe at the time.

When witness came on. duty the day of the injury, the double-board had been knocked out of its place and pushed back about a foot and one-half. Instead of putting it back in place, they nailed it down where it was— about a foot and a-half further back than it was when first put there. This made the finger-board too short, and it became necessary to splice it. This witness, in obedience to the direction of the foreman, spliced the finger-board.

When asked whether it was customary in drilling operations to throw the drill-stem oyer from behind the finger-board before the line takes up, this witness said: “They hadn’t done it on that job; that was the first time we tried it on that job'. The drill-stem was racked mighty close, and in lifting it they come near picking up some of the other joints with it.” When asked, if the drill-stem is left behind the finger-board until the line picks up, is it easier or harder for the men on the floor to handle it, he answered that he imagined it would be easier, but, if straightened out by its own weight, it would have a tendency to swing out or kick when you first pick it up. That he threw the drill-stem. out in obedience to the order of the foreman, and, when he did this, it broke the finger off on the double-board. When he threw the drill-stem out from behind the finger-board it jerked in the middle where the sag was and kicked back and broke the finger-board off. The piece that was broken off fell about 40 feet, and hit appellee on the head. It staggered him when it hit him, and he grabbed a pair of tongs. This was the first time he ever threw a drill-stem before the line picked it up. This is the first job witness ever worked on that had two and one-half inch pipes.

When the pipe was pushed out, it broke the fingerboard in two. Witness had seen finger-boards broken by pipes, but had never seen them broken by two and one-half inch pipes. The finger-board on the fourble is subjected to a strain. The double-board had -been knocked out of place, and that caused the finger-board not to stick out as far as it had, and witness spliced it so the finger-board was sticking out as far as it originally did.

Two-inch drill-stem is limber and will go all over the derrick, and you could not operate it if you did not have a finger-board on the double-board. The way they had been operating was to latch on the pipe before pushing it. The pipe swiped the finger-board and broke it off. Witness does not know whether it was a backward or forward swipe. The limberer the drill-stem is, the more substantial the finger-board should be.

With the drill-stem standing in the double-board there a foot and a-half back, that would make the pipe bend back in the middle towards the board. When the double-board is pretty far out, there is considerable sag in the two-inch drill-stem. There is¡ always some sag.

Witness has been in the oil fields since 1922, and worked for various companies, and held all positions in drilling crews except running a rig. It is an unusual thing for drill-stem, where two and a-half inch drill-stem is being used, to be thrown out from behind the finger-board on the double-board before the line picks up where there is a bend in the pipe. Where the fingerboard is in line, you don’t have to do that. You have to push it a little, and then it goes up.

When asked if what he did was out of the ordinary or was the customary practice, he answered that that was the first time on that job. It was out of the ordinary there.

Bill Evans testified that he had been engaged in the oil fields about 10 years, and has done drilling, and had drilling crews under him. That he never worked on a rig where they made a practice, with two and a-half. drill-stem, of throwing it out from behind the fingerboard before the line picked up, and that he did not think he would like to because it causes it to give a kick back at the bottom, and it will sway when it is thrown out from behind the finger-board. When they throw it out from behind the finger-board, it swings it so much that when it comes back it swings back with lots of force. Two and a-half inch pipe is harder to handle than four-inch. It is limberer, and sways more.

The first witness kney about the injury was when he heard the block hit Gross’ head. Then he saw him stagger. It cut him on the head. He had on a heavy felt hat, and it knocked this off. Witness took hold of him and supported him. The piece that hit Gross’ head was from a foot to eighteen inches long, a piece of fence rail, three-cornered shape, and had some nails driven in it. Would weigh from four to six pounds. It fell from 40 to 45 feet.

Witness said it was unusual, as far as he knew, to throw the two and a-half inch drill stem out from behind the finger-board on the fourhle hoard before the line picks up. There is a good deal of sway, and when the elevator picks the pipe up it straightens out, and the pipe is standing on the derrick, and if it is thrown out, the jerk is more than if it is left behind the fingerboard when the elevators pick it up. If it is picked up by the elevators, it does not whip the man around if it is behind the finger-board. It steadies it when it comes past. It is out of the way to push it forward before lifting up on it. Out of the way to pick it up behind the finger-board. The normal thing to do is to pick it up with the elevators before they push it out. All the drillers he ever worked for would object to it being thrown out on account of it being liable to hurt the pipe raeker in the swing and kick it gets. The names of the drillers witness worked under were John Chew for the Slaughter Drilling Company, D. McWhirter for Dr. Bussey, in Drew County. These men objected to the derrickmen throwing out the drill-stem before the line picked up. He worked with two and one-half inch pipes on the Bussey job and four-inch pipe on the Slaughter job. With a limber two and a-half inch stem the danger would be increased, and has a greater bow in it. If the double-board was a foot and a-half out of line, the drill stem would come up against it on account of its limberness.

The appellee himself testified that he was 28 years of age; was working at the time of the accident under St. Vine, and using two and one-half inch drill-stem; that he had worked around two and a-half inch drill-stem before. They were harder to handle than a drill-stem of larger size. It will not stand up like a stiffer stem. It will sag out over the rotary, and the block won’t clear unless you use two finger-boards, and so you use one on the double-boards to hold the slack. Fingerboards on the double-board would be about the middle of the stem. St. Vine gave the orders when witness was hit, but he did not hear St. Yine tell Martin to throw the drill-stem out from behind the finger-board. First he knew, something hit him. He had never worked before where they made a practice of throwing the two and a half inch drill-stem out from behind the fingerboard before the elevators picked up, and would not work in a crew where it was done. He was working on the floor, and did not expect to be injured while working there. The piece that hit appellee weighed something like five or six pounds. There were some nails sticking out, about forty-penny spikes. Two and a half inch drill-stem is bad about swaying from one side to the other. He should not have pushed it out until the elevator picks up. Witness had worked as a derrickman himself, and always pushed the pipe out after the pipe is taken off the floor.

W. M. Coates, a witness for the defendant, testified that he had seen the work performed that way by drillers a. number of times. That, when pushed out, that throws the bend out, tending to straighten the pipe, as the elevator picks up; that keeps the bottom from switching and whipping around. If you pick it up without throwing it out from behind the finger-board, the bow in the pipe swings around. That is likely to hurt the men on the floor. 'When the elevator jerks thejfipe up, that slack comes out with such force that it causes the bottom to swing around. It becomes a matter of judgment, under the circumstances under which they are working, whether to push it out first or elevate it without pushing it. The safest way is to throw it out. There is nothing unusual for a drill-stem like this to be pushed out before it is picked up. Nothing unusual about the finger-board being broken. That is one of the things they have to look out for. It is safer for the man on the floor to push it out first. It depends on the pipe. When you are using heavy pipe, it is stiff as a board. There might be more danger of knocking off the finger-board the more limber the pipe is.

Witness never inquired about any of the big companies, as to whether they used this method or not, but said they all do it. Witness and Dr. Palvey and Mr. Johnson owned the lease, and have a contract with the Arkansas Drilling Company to drill a well. He was not interested in the drilling of the well.

Louis St. Vine, a witness for the defendant, testified that he was the driller on the job, and that the end of- the finger-board on the double-board was broken off, and hit Gross on the head. That he was handling the operation in the usual and customary way. Been working in oil fields on drilling rigs since he was 17. He told the derrickman. to push the fourble away from the finger-board before he picked up on it. Has worked derricks and done it, and has done it for other fellows. Figured it would be easier all the way round to handle the stem that way. There is considerable bow in two and a-half inch pipe. You don’t take the strain off with a double-board finger-board, it is- to catch the sag. Doesn’t know what knocked the finger-board off. The pipe was the only thing that would kick it off. If there is no bow in the drill-stem, it will pick up straight. There is not any set rule or instruction to the fellow that is handling the pipe. Some throw it out before and some don’t. It is left to the opinion of the man handling the pipe. He would not say that his opinion in this case was wrong and resulted in the boy getting hurt. Doesn’t know exactly whether or not the board would not have been broken if it had not been thrown out, probably would, or would not have. As to which method they use, it depends upon the opinion of the crew. Witness’ opinion was that it would make it easier to the pipe racker. The first one they threw out this way hit the boy. Where the bow is, is at the double-board. If he pushes the top out, this finger-board holds the bow and makes it pick up straight.

Joe Modisette testified that he had seen a great many drill-stems pushed out 'before lifted. When asked if the big companies made a practice of throwing out limber drill-stems before the line picks up-, he answered that they used to throw it out. That some men do now; the companies don’t have anything to do with it. He doesn’t think it is any more dangerous than to take it up behind the finger-board.

H. M. Neal, a witness for defendant, testified that he was a driller; worked for practically all the major companies as- a driller. Has heard the method described by the witnesses used by the Arkansas Drilling Company when plaintiff was hurt, and there was nothing in the method used that was out of the ordinary. He did not see the rig, and does not know how much bend there was in the drill-stem, nor the exact position of the fingerboard on the double-board where it was knocked back, nor how quick the line picked up after the thing was thrown out. That would depend on the length of the fourble. It all depends on the shape of the drill-stem. If the stem is crooked, the collars are liable to hang on other fonrbles standing in the derrick. Has nsed two and a-half inch lots of times. It is customary to throw it out from behind the finger-board to keep it from hanging under the other collars. One is not necessarily taking chances of injuring men when he orders the derrick-man to throw out the drill-stem from behind the fingerboard before the line picks up. It is owing to the condition of the drill-stem. Witness does not know whether this drill-stem was crooked or straight. If it was straight it would be easier to elevate it behind the finger. Not knowing the condition, he could not say if it was right or wrong.

Johnson, vice president of the Arkansas Drilling Company, saw the accident just as Gross was hit on the head. The way the drill-stem was handled was not an unusual or out of the ordinary method of handling it. If the double-board had been put back in its original position, it' would have' been fiable to be hit again or broken off, and it would have fallen down on some one, and been a serious accident. It would not be clear of the block. As to whether they would order the derrick-man to throw out the drill-stem, they could agree among themselves, the derrickman, the driller and the crew. If they wanted to throw it out to make it easier for the pipe rackers in the handling of the pipe, it is the custom to do so.

The above is, in substance, the testimony on the question of the method of doing the work at the time, and also on the method used 'by other companies.

As stated by the appellant: “The only issue of liability submitted to the jury in this case was the alleged negligence of the defendant’s driller in directing the derrickman to push the drill-stem from behind the fingerboard before the elevator fine picked it up, instead of waiting for the fine to pick it up from its place in the stack and then pushing it out beyond the finger-board.”

And appellant asks: ‘ ‘ Should a jury of laymen, uninformed in the technique of the business, be permitted to- consider alternative methods, having the sanction and judgment of experienced operators, and arbitrarily substitute their judgment for that of the experienced operator and convict him of negligence solely on the ground that the method did not meet their own conception of what was reasonably safe in the circumstances V’

A jury of laymen, uninformed in the technique of the business, certainly would be permitted to determine whether the act was negligent when there was a conflict in the evidence. And, while there is some testimony that other drillers have used the same method that was used by the appellant at the time Gross was injured, there is no testimony that careful, prudent men adopted the method used by appellant, and the first case to which attention is called by the appellant states:

“The rule of law is that the employer must exercise such care and skill as, under the circumstances, reasonable and ordinary prudence requires to be used, * * * but it may be said generally that a man cannot be held responsible in damages for the consequence of an error in judgment carefully formed, after an intelligent survey of all the elements in the problem which he is called upon to solve” O’Neal v. Chicago, R. I. & P. Ry. Co., 66 Neb. 638, 92 N. W. 731, 60 L. R. A. 443, 1 Ann. Cas. 337.

The undisputed proof in this case shows that this is the first time that the drill-stem had ever been pushed out from behind the finger-board before picking it up. The abstract of the testimony does not show how long they had been at work at this job, but it does show that the well was down 3,245 feet at the time of the injury. We agree with counsel for appellant that it is negligence which makes the master liable, and not a mere error of judgment. But. in this particular case there was a conflict in the testimony as to whether this method was more dangerous and whether the adoption of this method, that is, the pushing out of the drill-stem from behind the finger-board before taking.it up, was negligence, and this question was properly submitted to the jury.

Appellant calls attention to a number of other cases which announce the correct rule of law, but we do not think that the facts in this case bring it within the rule announced. It is true that, if one adopts the method used by careful and prudent men, he is not guilty of negligence, because negligence means the doing of something that a person of ¡ordinary prudence would not do under similar circumstances, or the failure to do something* that a person of ordinary prudence would do. And the test of the master’s liability, in suits for injury to the servant, is the exercise of reasonable and ordinary care, and not whether he has employed customary methods. If the method employed is not the exercise of ordinary care, then the master is liable. He might refuse to adopt the customary and ordinary method and still not be liable, if he exercised reasonable and ordinary care.

“While the test of a master’s liability is the exercise of reasonable and ordinary care for the safety of the servant, and not whether he has employed customary methods, yet, as a general rule, a master will not be held responsible for injuries to a servant in the course of his employment where the usual and customary methods of work are employed, provided such methods are generally employed by prudent and careful men engaged in similar business, and provided they did not disregard the safety of the servant. ” 39 C. J. 467.
“Testimony as to the common experience of custom or usages of railroads, without reference to whether they are wisely or badly managed, or to their particular location or surroundings, or to peculiar circumstances which, in any given instance, would tend to illustrate the diligence or negligence of a company in recovering or failing to recover its switch keys, or in guarding or failing to guard its switch, would be too vague, uncertain and indefinite to aid a jury in determining a case on trial, whether or not the railroad company was diligent or negligent in these respects. East Tenn., Va. & Ga. Ry. Co. v. Kane, 92 Va. 187, 83 S. E. 18. 22 L. R. A. 315. Testimony as to custom of other drillers is a circumstance which the jury may consider in determining whether due case has been exercised. ’ ’ Donelly v. Ft. Dodge Portland Cement Corp., 168 la. 393, 148 N. W. 982.
“Defendants insist that, if the master conducts his business in the manner customarily followed 'by experienced men in the same line of business, it is conclusive against negligence. * * * The rule, to be correctly stated, should include the qualification that the other similar business conducted in the same way should be conducted by prudent and ordinarily careful men. Thus, if the triers of fact believe that the other similar business was conducted by suich prudent and careful men in a certain way, they would not be permitted to say such mode, followed in the given ease, was negligence. For a mode of business which is adopted and followed by men of ordinary prudence and care is the standard not only in this State, but in others to which we will refer. It is for the jury to find the preliminary fact whether the men shown to have so conducted their business were, in fact, prudent and careful men. ’ Fairfield v. Bichler, 155 Mo. App. 45, 190 S. W. 32; see also Hamann v. Milwaukee Bridge Co., 136 W. 39, 116 N. W. 854; Jackson v. St. L. & S. F. Ry. Co., 81 So. 797; Cramer v. Aluminom, Co. of America, 239 Pa. 120, 86 Atl. 654; Rupp v. Chicago B. & L. Ry. Co., Mo. Ap., 234 S. W. 1050; Johnson v. Waverly B. & C. Co., 276 Mo. 42, 205 S. W. 615; Boos v. M. St. P. & S. S. M. Ry. Co., 127 Minn. 381, 149 N. W. 660.

The evidence in this case being in conflict as to whether the method adopted was negligent or not, it was properly .submitted to the jury, and if there is any substantial evidence to support a verdict of a jury, their finding will not be disturbed.

“In testing the question of the legal sufficiency of the evidence we must, under rules well settled by the decisions of this court, view the testimony in the light most favorable to appellee, and give it such force as the jury migi.it have given it.” St. Louis-San Francisco Ry. Co. v. Whitfield, 155 Ark. 560, 245 S. W. 323.

Appellant next contends that the verdict is excessive. The evidence shows that a block of wood several inches long, and weighing from four to six pounds, fell 42 feet, and struck the appellee on the head. He went to a doctor at El Dorado, who is not interested in the drilling company, hut who is interested in the lease, and the owners of the lease had the contract with the drilling company. While he would not be permitted to testify as to anything he learned by reason of treating him, he was permitted to examine the appellee in court in the presence of the jury. And while he testified, in substance, that from that examination he did not think the injury was serious, yet it was done in the presence of the jury; they saw and heard the examination, and the appellee testified that he was still suffering from the injury. That he became dizzy; could not work, and could not see to read for any length of time, and the muscles on the inside of his arms and legs twitch and jerk; that he has headaches which prevent him from sleeping well at night, and he often wakes up with a jump at night. That his neck was stiff and sore; that he has always clone hard manual labor, but was unable to perform such labor after the injury. He must also have suffered mental pain and anguish as well as physical pain. The amount of damages awarded by the jury has given us more concern than any other question in the case, but we have reached the conclusion that there is some substantial evidence to support the verdict.

It is next contended by appellant that the court erred in giving to the jury plaintiff’s instruction No. 2. That instruction tells the jury that it is proper to take into consideration the bodily injury received by the plaintiff, if any, the physical pain and mental anguish suffered or endured by him in the past, if any, as well as such physical pain and mental anguish as he is reasonably certain to endure in the future, if any, Ms loss of time, if any, together with his decreased capacity for earning money, if any is shown, and from these, as shown by the evidence, assess his damages at such a sum as they may find from tlie evidence will' reasonably and fairly compensate him for the injury received.

Appellant argues that this instruction submits to the jury the issue of future pain and decreased capacity for earning money, and contends that there is n.o testimony sufficient to show, with reasonable certainty, that the plaintiff would suffer pain or that his earning capacity had been decreased.

We cannot agree with appellant in this. Appellee’s testimony shows that he still suffers with headache, and suffered pain up to the time of the trial. It also shows that his weight is 125 pounds, whereas it was 145 pounds before the injury, and certainly, if he was telling the truth about suffering at the time of the trial, it is reasonably certain that he would continue for some time, at least, to suffer pain. He testified also that he could not labor as he had before; could not earn the money, and therefore there is testimony showing that his earning capacity had been diminished, and we therefore think there was testimony justifying the court in giving this instruction.

In addition to this, the appellant asked the following instruction, which the court gave: “The jury are instructed that, if you find from a preponderance of the evidence in this case that the plaintiff is entitled to recover damages from the defendant, you would not be justified in awarding him damages oh the theory of permanent injuries, unless the evidence shows with reasonable certainty that he has suffered permanent injury.”

This instruction, requested by the appellant and given by the court, submitted to the jury the question of permanent injury. Appellee’s instruction did not submit the question of permanent injury. It did submit the question of future pain and suffering and loss of earning capacity, but there might be future pain and suffering and loss of earning capacity without the injury being permanent. That is, it might continue fo” a time only. But the appellant says that, under the ruling of this court in the case of St. L. I. M. & S. R. Co. v. Bird, 106 Ark. 177, 153 S. W. 104, it was error to give this instruc tion. The court said in the Bird case:

“The court erred in not granting appellant’s prayer for instruction No. 2. The testimony, viewed in the strongest light in favor of appellee, does not make it reasonably certain that Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable 'certainty that the injury is permanent, the court should not permit the jury to assess any damages for permanent injury. * * * Mr. Hutchinson says: ‘The jury may take into consideration future as well as past physical pain and suffering, but, to justify them in doing so, it must be made reasonably certain that such future pain and suffering are inevitable, and if they be only probable or uncertain, they cannot be taken into the estimate.’ ”

The court in this case told them, at the request of the appellant, that they would not be justified in awarding damages on the theory of permanent injury unless the evidence was -with reasonable certainty that he has suffered permanent injury.

We think the instructions given by the court fully and fairty state the law by which the jury was to be governed, and that there was no error in giving instruction No. 2 requested by the appellee.

As we have said, the testimony was conflicting on the question of negligence and the extent of the injury, and this court does not pass on the credibility of witnesses nor the weight to be given to their testimony. This is the province of the jury, and, if there is any substantial testimony to support the verdict of a jury, the verdict will not be disturbed by this court on the question of the insufficiency of the evidence.

We find no error, and the judgment is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Witherspoon v. State.
    Opinion delivered May 27, 1929.

      Glover & Glover, for appellant.

      Eal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaney, J.

Appellant, a 'colored barber of Mal-vern, Arkansas, was convicted of selling intoxicating liquor, and sentenced to a year in the penitentiary.

1. He first insists that the evidence is insufficient to support the verdict and judgment against him. He admits procuring the whiskey for the witness, Tommie Kelly, a white youth about 21 years of age, but says that he did so only as a matter of accommodation to the boy, not as a sale to him, and that he did not receive anything therefrom, or have any interest therein whatsoever.

Kelly testified that lie went to appellant’s barber shop in December, 1928, with Ralph Langham, gave appellant $1.50 for a pint of liquor, and that appellant went out the 'back door of the shop, and in a few minutes delivered the pint of liquor to them in the back room of the barber shop. He further testified that he went baisk on the same day with another person and purchased a quart of liquor from appellant, who left the barber shop and returned in a few minutes with the liquor. The testimony of the witnesses Langham and Head corroborates the testimony of Kelly in these regards.

At the request of appellant, the court instructed the jury that it was not against the law to purchase liquor, and that, if they believed from the evidence that appellant did not sell the prosecuting witness liquor, had no interest in the sale, and received nothing for purchasing it, but merely bought the whiskey to accommodate the 'witness, the defendant would not be guilty of the charge, and they should acquit him.

In Bolo v. State, 105 Ark. 462, 151 S. W. 1000, 153 S. W. 1104, after setting out the facts, which are substantially the same as in the case at bar, and after distinguishing that case from Whitmore v. State, 72 Ark. 14, 77 S. W. 598, the court said:

“The facts in this case are essentially different (referring to Whitmore v. State), and we think the present case is controlled by the principles of law announced in the case of Foster v. State, 45 Ark. 361. In that case Foster was indicted for selling liquor to a minor. The proof was that Foster took the money of the minor and purchased the liquor for him at a saloon in which he was not interested, and delivered the liquor to the minor. The court said that Foster was not the actor in making the sale to the minor, and to this extent was not within the language of the statute which prohibited the sale of whiskey to minors. The court held, however, that, following the rule of the common law, all persons concerned in the commission of a crime less than a felony. if guilty at all, are principals, and that Foster was guilty because he aided- and abetted the liquor seller, which was the offense prohibited by the statute.”

Quoting* again from the same case, it is said: “Under the facts of the present case the defendant Bobo aided Bussell in making the sale of the whiskey to Mul-key, and thereby became a principal in the offense. Mulkey did not kn.ow that Bussell was engaged in the illegal sale of whiskey. He came into the restaurant where Bo'bo was working and asked him if. he could get him any whiskey, and gave him money to pay for it with. Bobo went out and got the whiskey from Bussell, and came back and delivered it to Mulkey. * * * This shows that Bobo was a necessary factor in making the sale, and that he acted for the seller as well as the buyer, and, as such intermediary, he was interested in the sale of the liquor within the rule announced in the case of Dale v. State, 90 Ark. 579, 120 S. W. 389, and became thereby a principal offender.”

Here appellant says that he procured the whiskey for Kelly from a person whom he called “Mississippi Bed,” that he received no benefit from the sale, and did it purely as an accommodation to the young man. But. there was sufficient evidence to submit the question to the jury as to whether he was acting as an intermediary and not solely as agent for the buyer. We held in the case of Ellis v. State, 133 Ark. 540, 202 S. W. 702, that a person who acts as an intermediary in the unlawful sale of intoxicating liquors and thereby induces the transaction, is guilty, even though he received no pecuniary benefit from the sale, and that, in order to escape criminal liability, he must act solely for the purchaser. And it was further held in this same case that, under such circumstances, it is a question for the jury to determine whether he was the agent of the buyer, or whether his claim of agency was merely a cloak to conceal an unlawful sale by himself. The court correctly instructed the jury, as already stated, touching on this question, and the jury has found, on evidence that was sufficient to take the question to it, against him, and this court cannot disturb the verdict of the jury under such circumstances. See also Snead v. State, 135 Ark. 303, 203 S. W. 703; Harris v. State, 140 Ark. 46, 215 S. W. 497; Beck v. State, 141 Ark. 102, 216 S. W. 497; Whittington v. State, 160 Ark. 257, 254 S. W. 532; Anderson v. State, 161 Ark. 46, 255 S. W. 319; and Brown v. State, 161 Ark. 253, 255 S. W. 878.

2. It is next insisted that the court erred in overruling appellant’s objection to a statement made by the prosecuting attorney in argument regarding the law of the case. The prosecuting attorney stated that “when the State proves'that he took the money and delivered the whiskey, that, under the law, constitutes a sale.” When .counsel for appellant objected to this statement, the prosecuting attorney added the' words, “unless he went and procured it.” When the entire statement is considered, the prosecuting’ attorney correctly stated the law; but, even if it had been a misstatement, any possible prejudice resulting to appellant by the overruling of the objection was removed 'by the court in its instruction, after counsel had concluded their arguments, to the effect that the jury was not to consider any argument of counsel which was not based upon the evidence and the law as submitted to the jury by the court; that all the instructions given by the court constituted the law in the case, and that they should consider those instructions in applying the law to the facts; and that the instructions should be considered as a whole. Appellant therefore suffered no prejudice in this regard.

3. It is next said that the court erred in permitting one of the witnesses to testify, over appellant’s objections, that bootleggers usually tell you they will go and get the liquor for you. The witness had testified that he had frequently bought liquor from bootleggers, and he was evidently in a position to know their custom in this regard. We do not think appellant could have been prejudiced 'by this testimony, in view of the instruction given by the court at appellant’s request, heretofore mentioned, that appellant would not be guilty if he merely procured the liquor for the witness.

4. It is finally insisted that the court erred in giving the State’s instruction No. 2, charging, in the language of the statute, that “all persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and punished as such.” This instruction is substantially in the language of § 2311, C. & M. Digest. We think this a proper instruction, under the facts in this case. Appellant was being tried for selling liquor as a principal, and his defense was that he only procured the liquor for the buyer. It can readily be seen therefore, if the jury should find that he was acting as an intermediary, and not merely as the agent for the buyer, this instruction was proper.

No error appearing, the judgment must be affirmed.


author: Butler, J.

text:
    Burke v. International Life Insurance Company.
    Opinion delivered May 27, 1929.

      W. G. Dinning, for appellant.

      Breiver & Gracraft, for appellee.
   Butler, J.

The appellee, International Life Insurance Company, plaintiff in the court below, is the owner of Modoc Plantation in Phillips County, Arkansas, and on the 9th day of February, 1927, rented the same to the appellants, Bennie H. Burke and Bennie H. Lucy, for and during that year, for the sum of $5,200, and, in a lease contract executed on that day, waived its lien for rent on the crops produced in favor of the Interstate National Bank, located at Helena, to the extent of any sum which might he advanced by said bank to Burke and Lucy necessary for financing them during the year, in making and harvesting the crops on said plantation. Burke and Lucy executed a note for $20,000, with interest, to the bank and executed on the same day a deed of trust to secure it for the sums advanced on the note and for other moneys which might be advanced during the year, necessary to the production and harvesting of the crops.

The rent not having been paid, appellee instituted this suit against Burke and Lucy on the 15th day of February, 1928, and made the bank also a defendant, and asked for judgment against Burke and Lucy for $5,200 for rent, and for the appointment of a master and an accounting between the bank and Burke and Lucy to determine the amount of indebtedness incurred by Burke and Lucy in the operation of said plantation, and the value of the crops thereon which had been received by the bank, and that a lien be declared against the surplus in favor of the appellee. Attached to the complaint were a number of interrogatories propounded the defendants, Burke and Lucy, by which interrogatories the appellants sought to elicit the following information: the amount and value of the cotton and other crops produced ion appellee’s plantation during the year 1927; the amounts paid by Burke and Lucy to defendant bank; the amount actually necessary to furnish the plantation, and the amount in excess of that paid by Burke and Lucy to said bank; how much cotton and other crops grown on said plantation was then in their hands, and the number of bales iof cotton then stored with the Helena Compress Company; and the amount actually owing at that time under the deed of trust to the bank.

On the 24th day of March, 1928, following, there was filed an amendment to the complaint, setting out that there were 39 bales of cotton, described by certain numbers, grown on the plaintiff’s plantation and then in possession of the Helena Compress Company, with prayer that the compress company be made a party defendant and that a lien be fixed on the cotton in their possession. On the same day as the amendment was filed there was also filed with the clerk of the court a stipulation, signed by appellee and the defendants, Burke and Lucy, appellants here, and the defendant, Interstate National Bank, by which the allegations of the amendment to the complaint were admitted, and the consent of all parties noted that said cotton should 'be delivered to Burke and Lucy, and in consideration :of which a bond had been executed by Burke and Lucy, with the Fidelity & Deposit Company of Maryland as security, agreeing to pay plaintiff, the insurance company, the value of the cotton released if it should succeed in having a lien adjudged in its favor. Contemporaneous with the filing of the stipulation, the Interstate National Bank advanced to Burke and Lucy the sum of $2,600 to be applied to the payment of the rent, and on the same day, namely, March 24, on motion of plaintiff, an order was made by the court and entered ¡of record, by which the suit was dismissed with prejudice as to the Interstate National Bank, “but none other.”

There is nothing in the record to indicate that the compress company was ever served with summons or answer, so that company passed out of the case with the defendant hank. On the 14th day of April, 1928, the defendants Burke and Lucy filed their joint answer, admitting the 'ownership of the demised premises in plaintiff, the rent contract, the waiver of the lien in favor of the Interstate National Bank, and that “a portion of amount due by them as rent had not been paid.” They averred that all of the cotton grown on the plaintiff’s plantation had been delivered to the Interstate National Bank, and that the proceeds thereof were insufficient to repay the bank the sums advanced by it for the making and gathering of the crops, and that, since the institution of the suit, the bank had advanced, at their request, an additional sum of $2,600 to be applied towards the satisfaction of the claim of plaintiff against them. In answer it was denied that the 39 bales of cotton mentioned in the amendment to the complaint were grown on the lands rented from plaintiff, or that plaintiff had any lien upon same.

On the 2d day of September, 1928, the defendants, Burke and Lucy, made and filed identical answers to the interrogatories appended to the original complaint, in which they stated the number of bales iof cotton produced on the plantation of plaintiff, the amount of cotton and seed, the aggregate value of same, and stated that the whole of the proceeds from said plantation were paid to the Interstate National Bank. They stated the amount of money actually necessary to the operation of the plantation, and that this amount had been received by them from said bank, which was in excess of the proceeds of the cotton and cottonseed, and that this amount had been increased in the sum of $2,640, advanced them since the institution of the suit, to be applied to the rent due, which made a total excess over amounts received by the bank in the sum of $5,015.66. They further stated that the amount of cotton and its description in the hands of the Helena Compress Company was correctly stated in the stipulation of the parties theretofore filed, and that this cotton had been grown on plaintiff’s plantation. No master ¡or receiver was appointed, and the question as to the amount and'disposition of other crops than cotton and cottonseed appears to have been ignored by plaintiff.

Upon the pleadings and facts as heretofore stated the court, on the 26th day of ‘November following, rendered its decree, finding for the plaintiff a lien on the 39 bales of cotton described in the amendment to the complaint, and giving- judgment to the plaintiff against the defendants, Burke and Lucy, and the Fidelity & Deposit Company, for the sum of $2,789.45, from which finding and judgment Burke and Lucy and the Fidelity & Deposit Company have prosecuted this appeal.

The appellants do not question the correctness of the finding as to the amount due for balance of rent, but only that part of the decree adjudging a lien on the 39 bales lof cotton mentioned. Therefore it is to this question only that we direct our attention. Appellants, defendants below, have proceeded in this case upon the assumption that the waiver made in favor of the Interstate National Bank inures to their benefit, and have endeavored to show that the cotton produced was not sufficient -to pay the bank the sums advanced by it, and that therefore the court below erred in finding a lien in favor of plaintiff on said cotton. We think appellants are mistaken in their theory, and the right to make the defense offered was peculiarly that ¡of the Interstate National Bank. By the order of dismissal, made and entered on the 24th day of March, the -only party which might have availed itself of the defense offered went out of the case. It was the bank in whose favor the lien was waived, and not the tenant, who admits the rent has not been paid. It is ¡often necessary, as in this case, that landlords waive their liens in favor of those financing the farming operations, and if the theory of appellee was sound, then it would be equally reasonable that, where the waiver is not claimed by the one in whose favor it is made, any creditor of the tenant might assert the waiver for his own benefit, and the landlord he thus defeated in the collection of his rent. This would be absurd. This court has held that a waiver does not extinguish the lien, but only renders it dormant as to the person in whose favor the waiver is made (Varner v. Rice, 39 Ark. 344), and as to all other persons it is unavailable, even as to the assignee of one who might hold a mortgage on the tenant’s crop and in whose favor a waiver has been executed. Neeley v. Phillips, 70 Ark. 90, 66 S. W. 349. See also 36 C. J. 1545, and 16 R. C. L. 993.

In our opinion, the decree of the chancellor should not be disturbed, even though the theory of the appellants might have been correct, for we do not think that the appellant’s contention that the decree was without evidence to support it is sustained by the record in the case. It is true, the answer of Burke and Lucy t!o- the interrogatories is the only direct testimony in the case, and that the chancellor could not rightfully arbitrarily disregard the same, but, in order for this testimony to have weight sufficient to overturn the finding of the chancellor, as they are interested parties, their testimony must not only have been reasonable and consistent with itself, but consistent with the other circumstances in the case. In the first place, it is to be noted that they were parties in interest, and, as such, it cannot be said that their testimony was uncontradicted. Blankenship v. Modglin, 177 Ark. 388, 6 S. W. (2d) 531. But the testimony of Burke and that of Lucy was not all ¡of the evidence in the case. There are significant circumstances surrounding the entire transaction which protrude prominently, and which the chancellor could not ignore. He doubtless weighed the testimony :of the appellants, and considered it in the light of the aittendant circumstances. The bank, which was the only party at the commencement of the suit that could have benefited by establishing an amount of indebtedness in excess of the value of the cotton and cottonseed received, and with the means available to make the necessary proof, not only failed to avail itself of the opportunity to do so, thus losing the 39 hales of cotton, hut actually advanced to' 'Burke and Lucy $2,640 additional. This conduct can be explained on no other reasonable hypothesis than that the hank had already been paid more than the amounts it had advanced for the making and gathering of the crop on the Modoc plantation. It is possible that this might not be true, and that some ¡other motive might have impelled its action, but an abandonment of the right to valuable property and the payment of considerable sums in addition is not the ordinary conduct of business institutions of the known prudence ¡of the average bank.

In view of all the evidence, both direct and circumstantial, we think that the finding of the chancellor cannot be said to be against the preponderance of the testimony. The Fidelity & Deposit Company, having executed bond substituting that for the cotton released from the compress, has made itself a party to the case, and it follows that the court, having found a lien on the cotton, was correct in rendering judgment against it.

In view of the conclusions we have reached, the decree must be affirmed. It is so ordered.


author: Hart, C. J.,

text:
    Belyeu v. Hudson.
    Opinion delivered June 3, 1929.

      L. A. Hardin, for appellant.

      Fred A. Isgrig and Philip McNemer, for appellee.
   Hart, C. J.,

(after stating the facts). The plaintiff relies upon a verbal .contract for his right to a commission. This was sufficient. This court has held repeatedly that it is not necessary that authority to sell land should be in writing. The reason, is that a contract employing an agent to find a purchaser for land is not within the statute of frauds. Blanton v. Jonesboro Building & Loan Association, 176 Ark. 315, 3 S. W. (2d) 964; Vanemburg v. Duffey, 177 Ark. 663, 7 S. W. (2d) 236.

According to tbe testimony of Hudson, be bad yerbal authority from Belyeu to sell tbe seven-acre tract of land for tbe sum of $2,500. He showed this tract of land to J ones and gut him interested in tbe purchase of it. It is true that the sale was consummated by Jones with Belyeu, but the law is settled in this State that, where a real estate agent, employed to sell land, introduces a purchaser to the seller, and through such introduction a sale is effected, the agent is entitled to his commission, although the sale be made by the owner. Carpenter v. Phillips, 157 Ark. 609, 249 S. W. 357, and cases cited.

Again, in Sharp v. West, 176 Ark. 616, 3 S. W. (2d) 692, the court held that, where a real estate broker procures a purchaser, ready, able and willing to buy the property, he is entitled to a commission.

Here the jury was justified in finding that Hudson procured Jones as a purchaser of the land, and that he was entitled to recover his commission, although the sale was consummated between Jones, the purchaser, and Belyeu, the owner of the land.

Counsel for the defendant, however, contend that the judgment must be reversed because the two and one-half acre tract across the road was included in the sale of the seven-acre tract, and that Hudson had no authority to sell the two and a-half acre tract. This did not make any difference. According to the testimony of Hudson, he told Jones that he only had authority to sell the seven-acre tract, and that Belyeu asked $2,500 for it. Hudson further told Jones that he thought he could procure both tracts for $3,000. Jones did in fact procure both tracts from Belyeu for the sum of $2,750. If the jury believed the testimony of Hudson in this regard, under the instructions of the court, he was entitled to recover. Hudson, as broker, procured Jones as a prospective purchaser of the land. In other words, he was the procuring cause of J ones going to see Belyeu about the purchase of the land. He had authority to sell the seven-acre tract. Belyeu voluntarily reduced the price of both tracts from $3,000 to $2,750. He consummated a sale with Jones on these terms, and Hudson was entitled to his commission at the rate specified in his agreement with Belyeu. Belyeu consented to the change in price and the addition of another tract of land in the sale to Jones, and Hudson’s claim for commission could not be defeated by the fact that these changes were made. There is no evidence that Belyeu was compelled to modify the terms as to the seven-acre tract in order to consummate the sale. As far as the record discloses, he might have sold both tracts to Jones for the price of $3,000, and the concession of Belyeu to sell at a reduced price was entirely voluntary. Hence Hudson was entitled to recover his commission of ten per cent, on the purchase price of the seven-acre tract at $2,500. This amounted to $250. Stiewell v. Lolly, 89 Ark. 195, 115 S. W. 1134; Hodges v. Bayley, 102 Ark. 200, 143 S. W. 92; and Chandler v. Gaines-Ferguson Realty Co., 145 Ark. 262, 224 S. W. 484.

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


text:
    Magnolia Grocer Company v. Clayton.
    Opinion delivered June 3, 1929.

      Paul Grumpier, for appellant.

      Henry Stevens, for appellee.
   Hart, C. J.,

(after stating the facts). One opinion will suffice, for each deed of trust contains the same description of the land, and the court held that the description ¡of the property was so indefinite that no lien was created by the execution of the deed of trust.

It is first contended that the description of the property as an undivided interest in the northwest quarter of the northwest quarter of section 19, and northeast quarter of northwest quarter of section 31, the south half of the southwest quarter of section 30, all in township 19, range '20 west, is too indefinite, and renders the deed of trust void on its face. We cannot agree with counsel in this contention. An undivided interest in land may be made the subject ¡of a mortgagee or deed of trust, but the mortgage by one tenant in common conveys only his rights to the‘property. 41 C. J., § 398, page 481. In the application of this rule in the case of Bank of Searcy v. Baldock, 153 Ark. 308, 240 S. W. 399, where one tenant in common executed a mortgage of his undivided one-half interest in real estate, the court held that the mortgage only conveyed what right she had in the property itself. In Carter v. McDaniel, 94 Ky. 564, 23 S. W. 507, the Court of Appeals of Kentucky held that a mortgage by an owner of his undivided interest in his father’s land includes any and all interest which he owns therein, whether in possession, reversion, or remainder. So here the mortgage by the Clay-tons of an undivided interest in certain lands, described by proper governmental subdivisions, embraces all the interest of the mortgagors in the land, and is sufficiently definite to create a lien on the land described in the deed of trust or mortgage. Phillips v. First National Bank of Van Buren, ante, p. 605.

It is next insisted that the description in the deed of trust of an undivided interest in 15 acres in the northeast corner of a quarter section, described according to the government surveys, and 5% acres in a quarter section, described according to the government surveys, is too indefinite, and is void on its face. We cannot agree with counsel in this contention. In the first place, it may he noted that the rights of third parties are not involved in these cases, and that the question the chancery court had under consideration was whether or not, as between the parties to the deeds of trust, the description of the property was too indefinite to create a lien on the property. As between the parties a mortgage or deed of trust will not be held void for insufficient description iof the property if, by any reasonable construction of the terms of the instrument, the description therein used can he held to embrace a tract of land in the contemplation of the parties to the instrument.

The description of the land in the deed of trust is not so vague and indefinite as to be incapable of being aided by parol evidence of identification. This court has gone to considerable length in holding a description in a mortgage sufficient when it appears practical to identify and locate the lands by aid of parol evidence. Tyson v. Mayweather, 170 Ark. 660, 281 S. W. 1; Snyder v. Bridewell, 167 Ark. 8, 267 S. W. 561; Wells v. Moore, 163 Ark. 542, 260 S. W. 411; and Rogers v. Magnolia Oil & Gas Co., 156 Ark. 103, 245 S. W. 802. While none of these cases are precisely in point, they sustain the principle that, while the location of the property conveyed by the mortgage must be determined by the description of it contained in the mortgage itself, still, as 'between the parties to the instrument, the actual intention of the parties in this respect is the controlling factor, and this may be ascertained by extrinsic evidence for the purpose of identifying the property.

Counsel for defendants relies on the case of Freed v. Brown, 41 Ark. 495. We do not think that case applies here, because no effort was made by proof to identify the lands mortgaged, and the mortgagee relied exclusively upon the description contained in the mortgage, which was held to be too vague and indefinite to create a lien on the land. Here the burden was upon the plaintiff to show by parol evidence what particular undivided interest in the 15-acre tract and in the 5%-' acre tract was intended to be described in the deed of trust, and, having failed to do so, we would not reverse the decree if this was all there was in the case. As we have already seen, however, the decree must be reversed because the court held that the description of all the land was so indefinite that a lien could not be declared against it, and the effect of our opinion is that the chancellor erred in so holding as to the undivided interest in the northwest quarter of the northwest quarter of section 19, and the south half of the southwest quarter of section 30, and the northeast quarter of the north half of section 31. Inasmuch as the decree must be reversed on this account, permission will be given to-the plaintiff, if so advised, to introduce parol evidence to locate the 15 acres in the northeast corner of the northwest quarter of the northwest quarter and the 5% acres in the southeast quarter of the northwest quarter of section 31. It may be that the parties owned no other land in these subdivisions except the 15-acre tract and the 5y2-aere tract, and that these two tracts may be located and identified by parol evidence.

This leaves for our consideration the findings of fact made by the court as to the amount of the indebtedness secured by the deeds of trust. The plaintiff introduced in evidence the account books kept by the merchants and the amount of cotton shown on their hooks to have been delivered by the Claytons in payment of the indebtedness secured. Each one of the Claytons, however, testified that the account was not correct. Each one testified as to remnants of cotton which he or she had delivered in part payment of the indebtedness secured by the deed of trust and which had not been credited on his or her account. Upon conflicting evidence the chancellor found this issue in favor of the debtor in each case, and it cannot be said that this finding of fact is against the weight of the evidence. Hence the finding of fact made by the chancellor as to the amount of the indebtedness secured by the deed of trust in each case will be allowed to stand, and the decree in each case will be affirmed in this respect.

The result of our views is that the decreei will be reversed, and the chancellor will be directed to hold good the description as to the undivided interest of each of the Claytons in the. northwest quarter of the northwest quarter of section 19, the south half of the southwest quarter of section 30, and the northeast quarter of the northwest quarter of section 31, all in township 19, range 20 west, in Columbia County, Arkansas. As to the 15 acres in the northeast corner of the northwest quarter of the northwest quarter and the 514 acres in the southeast quarter of the northwest quarter of section 31, township 19, range 20 west, the plaintiff will be allowed to introduce parol proof to locate and identify said tracts if he is so advised. It is so ordered.


author: Smith, J.

text:
    Wilkening v. Layne-Arkansas Company.
    Opinion delivered June 3, 1929.

      M. F. Elms, for appellant.

      John W. Moncrief and A. G. Meehan, for appellee.
   Smith, J.

August W. Wilkening, a nonresident, owned a rice farm near Stuttgart, and early in 1925 received a letter from Ray 0. Burks of that city, proposing to purchase the farm. Burks has for many years been in the real estate business, but his letter contained no intimation that he desired to purchase the farm for another person. A reply to this letter resulted in' an extended correspondence, much of which is copied in the briefs of opposing counsel.

The farm was in bad repair, and Burks did not propose to make a cash payment. His proposition involved a sale on long time, and he wrote that: “As a first payment I will agree to install a complete irrigation well, and repair the house, barn and granary. It will cost something over $5,000 to make these improvements, which will make the place in good condition and secure the deferred payments.” He also wrote that: “It would be perfectly safe for you to make such a deal, as the improvements will be made, and I will furnish you a statement from the contractors that there will be no lien against them whatsoever.”

Wilkening accepted the proposition and turned the .matter over to his attorneys, Messrs. Springer & Buckley, Edwardsville, Illinois, to work out the details, and these gentlemen, in turn, engaged Floyd Wingo, a local attorney in Stuttgart, to assist in closing up the deal. The details had all been agreed upon before Burks disclosed to Springer & Buckley the fact that he did not propose personally to buy the farm, and that he was acting for L. E. Strickler, and Burks testified that he was never at any time the agent of Wilkening, and the testimony shows that he was not. He was at all times the agent of Strickler. As the negotiations progressed under the agreement, Burks arranged with the Layne-Arkansas Company to drill the well and to install a pump and motor, and with the J. I. Porter Company to furnish the building materials to make the repairs which ■he had proposed to make, and on Februarjr 6, 1926, Burks wrote Springer &'Buckley as follows: “We are ready to go ahead and make improvements and take over the Wilkening farm. We are going to get the Layne-Ark-ansas Company to fix the well, and we can get a state-ment from them that they have no liens against the property, as well as furnish a statement from the J. I. Porter Company, that we are going to buy the material from to fix the house, that they will not hold any liens against the property. In other words, you are rather precautions about protecting Mr. Wilkening’s interest.” As this quotation indicates, the attorneys had imposed this requirement, and, in addition, had suggested that a bond be made indemnifying Wilkening against any lien claims.

Burk’s letter to the attorneys continued: “I have given you the biggest bank here, where I have been doing business for 20 years, as reference, and if you do not care to handle this this way, we will let the matter drop, as we are not going to put up a bond for these improvements. In order to do what is right, we are going to get Layne-Arkansas Company to fix the well and J. I. Porter Company to furnish the material, and you can ask either one of them whether or not they will not be willing to carry us for the account, as well as the bank. This should satisfy Mr. Wilkening, as we are not here to try to place liens against Mr. Wilkening’s property, but carry this deal out in a business way, as we always do.”

Upon receipt of this letter, and after communicating with their client, the attorneys wrote Burks a letter accepting his proposition, and in this letter they summarized the contract as they understood it, as follows: The purchase money notes should be secured by a first mortgage ; the buildings should be repaired and painted; and the pump, with electric motor, was to be installed; and “it shall be agreed that all improvements made on said real estate, including electric motor and pump, shall be taken, considered and held as part of the real estate, and shall be included in the mortgage given to secure the payment of the balance of the purchase price, and if it is necessary, under the laws of Arkansas, to give, a chattel mortgage in order to secure a lien for the payment of said notes on said electric motor, fixtures and pump, the same shall be given in addition to the real estate mortgage on said real estate. All of said equipment work and reconstruction work, however, to be done at your cost and expense. It is further understood that you are to purchase the equipment for such plant aforesaid and other improvements from the Layne-Arkansas Company and from the J. I. Porter Company, and that they are to furnish, 'before such equipment or materials are delivered on said premises, a release agreement agreeing that they will look to you for the payment of the amount due therefor, and that they will not claim any lien on said premises therefor, and release and waive the right to claim any such lien.” All parties treated this letter as stating correctly the terms of sale, and, pursuant thereto, the local attorney at Stuttgart prepared an escrow agreement whereunder the deed might he delivered. The escrow agreement was dated March 24, 1926, and the parties thereto were Wilkening and Burks and the Exchange Bank & Trust Company, of Stuttgart, .and recited that Wilkening had contracted to convey to Burks, “or such persons as he may direct,” the farm herein referred to, for the consideration of $9,600, of which amount $1,000 was to he paid the first of each year, beginning January 1,1927, until the 1st of January, 1932, at which time $4,600 was to be paid. The contract recited the improvements which Burks had contracted to make, and that ‘ ‘ all of said improvements so to be done at the cost and expense of the said Bay O. Burks or his assigns.”

The escrow agreement recited that Burks had authorized the deed to be made to Strickler, and the escrow agent was authorized to deliver the deed to him when advised by Wilkening-’s attorney at Stuttgart that the following conditions had been complied 'with: The houses repaired and painted, and the well drilled and the pump and motor installed, “all as provided in a certain contract entered into by and between L. E. Strickler and the Layne-Arkansas Company, dated February 19, 1926; * * * all of said improvements so to be done at the cost and expense of the said Bay O. Burks or his assigns.”

To carry out his contract with Wilkening, Burks negotiated a contract between Strickler and the Layne-Arkansas Company, whereby the latter contracted to drill an irrigation well and to equip same with pump and motor for the consideration of $5,500, of which $2,500 was to be paid in cash, and “balance to be covered by note and chattel mortgage on one-half of all rice grown under this well for the year 1926, subject to Arkansas Light & Power Company claim for current and line charges; and further, if said note is not paid from the 1926 crop, then in that case purchaser will continue to give the same security until the above is paid out on account of contractor releasing title to all equipment.”

The local attorney was shown this contract between Strickler and the Layne-Arkansas Company, and Springer & Buckley were acquainted with its provisions, and the manager of the Layne-Arkansas Company testified that he drilled the well and installed the pump and motor upon the faith of this contract, believing that it gave him a continuing right to a mortgage on the rice crop until the debt of his company was paid.

Upon the delivery of the deed the Layne-Arkansas Company wrote the following letter:

“Mr. August Wilkening,
c/o Floyd Wingo,
Stuttgart, Ark.
“Dear sir: This is to advise you that we have released title on well and pump and motor which was installed for Mr. L. E. Strickler on the farm purchased from you.
“Yours truly,
“Layne-Arkansas Co.
“By C. D. Woodburn, V. P.”

The Porter company wrote a similar letter about the same time in regard to the building material.

After receiving his deed, Strickler executed mortgages on the rice crop for the years 1926 and 1927, but he made default in his payments to Wilkening, and also neglected to pay the taxes for either 1926 or 1927. On January 20, 1928, Strickler executed to the Layne-Ark-ansas Company a chattel mortgage on the rice crop, which was filed for record January 23, 1928. On February 6, 1928, Wilkening brought this suit to foreclose his mortgage lien, and on February 13, 1928, a receiver was appointed, who took charge of the land. Strickler appears to have abandoned the land about this time, and to have left the State without having planted the crop upon which he gave the mortgage. The receiver marketed the rice crop, which appears to have been raised by a man who had been a tenant of Strickler, and made a report of the proceeds of the sale thereof to the court.

The Layne-Arkansas Company intervened in this foreclosure suit, and prayed that its mortgage lien be enforced against one-half of the net proceeds of the sale of the 1928 rice crop, and that relief was granted. It was also decreed that the intervener “is entitled to similar security for the year 1929 upon rice crop grown upon said land in said year,” and that the intervener is entitled to a vendor’s lien upon rice crops of subsequent years until said indebtedness is fully paid, and the receiver of the court was ordered to retain control of the land until the indebtedness due the intervener was paid.

By way of explanation of this decree, which was rendered December 3, 1928, the finding of fact is there made that the sales contract between Wilkening and Strickler contained a specific reference to the contract executed by the Layne-Arkansas Company and Strickler, and, as the Layne-Arkansas Company had waived its right to a lien under the statute, equity required that the mortgage lien for which it had contracted in lieu of the statutory lien be enforced.

The decree of foreclosure was rendered on March 5, 1928, and a sale was had under this decree on April 14, 1928, and at this sale Wilkening became the purchaser. This sale was duly confirmed December 3,1928. At the time of the rendition of the decree of foreclosure the hearing on the intervention of the Layne-Arkansas Company was continued to the December, 1928, term, at which time a decree was rendered as above stated.

We think it was error to decree that the intervener had any interest in the 1928 rice crop, and even more erroneous to decree it an interest in future crops. The effect of this decree is to annul the release contained in the letter of the Layne-Arkansas Company to Wilken-ing-’s attorney, set out above.

We think every writing offered in evidence in this case, and the other testimony as well, makes it plain that Wilkening conveyed his land Avithout receiving a cash payment, upon the condition that he have a first lien upon the land and the improvements placed thereon, and' this he does not have if another party is to be given the rents until the improvements placed by the inter-vener on the land are paid for. It is true, as the court found and 'as counsel argues, that Wilkening’s agent knew of the contract between Strickler and the inter-vener, Layne-Arkansas Company, but we think the purpose of communicating this information was not to subordinate Wilkening’s lien .to that of the intervener, but rather to advise that the improvements would be and had been placed upon the land. It was this assurance which induced Wilkening to sell his land and to surrender its possession without receiving a dollar of purchase money. We find the fact to be that there was no agreement- or understanding on the part of Wilkening that his lien should be subordinate to that of any other person for any purpose.

It was of course contemplated that Strickler should give chattel mortgages on his interest in the rice crops which his tenants grew from year to year until the proceeds from this share sufficed to pay the debt of the intervener; but, so far, at least, as Wilkening is concerned, this agreement contemplated that Strickler should not make default in making the payments required by his deed, and would pay the taxes.

It has been adjudged — and no one complains of the adjudication — that Striekler defaulted in paying the taxes and all the purchase money notes which had matured at the time of the institution of the foreclosure suit.

The receiver was appointed, not only before the 1928 crop was severed, but before it was planted. In the case of Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859, 271 S. W. 952, it was held (to quote a syllabus) that: “Where a mortgagee of land brings suit to foreclose his mortgage and procures the appointment of a receiver to take charge of the land, this has the effect of impounding the unsevered crop then growing on the land.” See also Osburn v. Lindley, 163 Ark. 260, 259 S. W. 729; O’Connell v. St. Louis Joint Stock Land Bank, 170 Ark. 778, 281 S. W. 385.

It is therefore clear that the agreement between Striekler and the Layne-Arkansas Company for future mortgages could in no event affect the 1928 crop.

The decree of the court below will therefore be reversed, and the cause remanded with directions to dismiss the intervention.


author: Humphreys, J.

text:
    Buerkle v. Greenlee.
    Opinion delivered June 3, 1929.

      George C. Lewis, for appellant.

      John L. Ingram, for appellee.
   Humphreys, J.

This is an appeal from a decree rendered in the chancery court of Arkansas County, Northern District, foreclosing a mortgage and ordering a sale of the land therein described, to satisfy a note for $1,600, of even date therewith, and accumulated interest, and taxes which appellee had paid upon the land.

Appellant had defaulted in the payment of the interest, which matured the note under a provisión in the mortgage to that effect. The note and mortgage were dated January 1,1921, and the note was made payable ten years after date, and bore interest at the rate of 7 percent, per annum from date until paid. There were ten interest coupon notes of $112 each attached to the note, evidencing the annual 'amount of interest due. The note and coupon notes were made payable to the order of Diekinson-Reed-Randerson Company of Oklahoma City, Oklahoma, at Hanover National Bank of New-York. The note and interest coupon notes and the mortgage securing same were duly assigned and transferred on the 29th day of January, 1921, to appellee, by said Diekinson-Reed-Randerson Company, which was incorporated under the laws of the State of Oklahoma for the purpose of doing a loan business, and .which maintained its general or main office in Oklahoma City. It qualified under the laws of Arkansas to do a loan business in this State, and appointed a general State agent, who resided at Little Rock, and local agents who resided in other localities in the State. On the 26th day of December, 1920, appellant applied to the local agent for a loan from the Oklahoma corporation, and appointed it his agent to procure a loan for him on the land described in the mortgage, and on January 1, 1921, executed to it the note and mortgage in question. The note with coupons attached and the mortgage were delivered to the Oklahoma corporation at its home office in Oklahoma City. Immediately after the application had been made for the loan, the State agent inspected the lands, and sent a written report of inspection thereof to the Oklahoma Corporation. All the papers, including an abstract, which had been favorably passed upon by the corporation’s attorney, were submitted to appellee in order to obtain the money from her to make the loan, and, upon her acceptance thereof, duly assigned and transferred the note and mortgage to her. At the time appellant .executed the note and mortgage he also executed a receipt to the Oklahoma corporation for the loan he was to receive. It does not appear when the money was received by the Oklahoma corporation from appellee, but early in February it was paid in cash to appellant by the local agent in Stuttgart.

Appellant filed an answer and cross-complaint in the foreclosure proceeding, pleading usury, and, for that reason, praying* for the cancellation of the note and mortgage as a cloud upon the title to his land. In support of the plea of usury he alleged that, at the time he executed the principal note of $1,600 and the mortgage securing same, he was required to execute three other notes of $160 each, payable to said Oklahoma corporation at Oklahoma City, Oklahoma, in one, two and three years, respectively, and to secure them by a second mortgage on said real estate, as additional interest for the loan; that it was all one transaction, wholly consummated in the State of Arkansas at one and the same time; further alleging* that the requirement to pay $480 of the interest in lump sums of $160 annually for three years, instead of spreading it out in equal annual payments of $48 each, covering* the ten-year term of the loan, was an exaction of more than 10 per cent, per annum, and rendered the contract usurious in both Arkansas and New York; further alleging that the place of payment designated in the original $1,600 note and interest coupon notes attached and that designated in the three $160 notes was inserted arbitrarily for the purpose of covering up the usurious transaction.

Appellee filed a reply to the answer and cross-complaint of appellant, denying the affirmative defense of usury set out in them, as well as all material allegations in support of the plea.

The .testimony as reflected by the record is not materially different from the testimony as reflected by the records in the ease of Boston Mutual Life Insurance Co. v. Newton, 174 Ark. 547, 297 S. W. 1035. In the case mentioned the court found, on a trial de novo, that contracts similar to the one involved in this suit and executed under like circumstances were Oklahoma and not Arkansas and New' York contracts, and declared that such contracts were not usurious under the usury laws of Oklahoma, where the material parts of the transactions occurred.

Appellant arg’ues that in the Newton case the facts were materially different from the facts in the instant case, and points out that in that case the application for the loans was forwarded to the Oklahoma office and approved by it, and that the papers were all prepared in and the money finally paid from the main office of the corporation in Oklahoma City: whereas all these things were done by Mr. Weatherton, its Arkansas State agent, in the State of Arkansas, in the instant case.

We do not so understand the testimony. Appellant testified that the papers were prepared and presented to him and that he executed them in the State of Arkansas. R. S. Banderson, the secretary-treasurer and general manager of the Oklahoma corporation, testified that appellant applied to it for the loan and constituted it his agent to procure the loan for him; that the papers were prepared, and, after being executed by him in Arkansas, were sent to his company, and then submitted to appellee, who finally bought same; that his company had no money with which to make the loan, and simply acted as appellant’s broker. Appellant testified that the money was not paid to him on the first day of January, 1921, at the time he signed the receipt, but was paid to him in cash by the local agent nearly a month after he executed the papers. We think the legitimate inference to be drawn from this testimony is that the application was approved in Oklahoma City by the company, and that the papers were either drawn by it at the home office' or by its State agent in Arkansas, and that, after the execution of same, they were returned to it. ■This is clearly indicated by the fact that the note with coupons attached and the mortgage were afterwards duly assigned and transferred to appellee by said corporation. We also think it clearly inferable from the testimony that, after receiving the papers duly assigned to her, she sent the money to the Oklahoma corporation, and that in some way it was forwarded by the Oklahoma corporation to its local agent at Stuttgart, who paid it in cash to appellant. As stated above, the testimony, ' together with the legitimate inferences to be drawn therefrom, does not present a record materially different from the records in the case mentioned. This case is therefore ruled by the case referred to.

No error appearing, the decree is affirmed.


text:
    Moran v. Young.
    Opinion delivered June 3, 1929.

      M. F. Elms, for appellant.

      W. A. Leach, for appellee.
   Humphreys, J.

Charles Young instituted suit against A. E. Moran, in the chancery court of Arkansas County, Northern District, to rescind an executory contract for the purchase of the west half of section 15, township 3 south, range 5 west, in said county, and to recover escrow deposits made 'by him pursuant thereto, upon the alleged ground, amongst others, that appellant had breached the contract by failing-to procure a loan for him on said land from a State Land 'Bank for the term' of thirty-three years, under its amortization plan, to be secured by a mortgage thereon, which would contain a provision allowing appellee to retire the full amount or any part of the loan on any interest-paying date after the first year up to the fifth year by paying a bonus of one-half of one per cent, plus the amount of interest due at the time.

A. E. Moran filed an answer and cross-complaint, admitting that the contract for the sale and purchase of the land deposited in escrow included a provision requiring him to procure said loan embracing the alleged repayment clause, but alleging full and complete compliance therewith, and praying for a specific performance of the contract.

The cause was submitted upon the pleadings and testimony, which resulted in a decree dismissing Charles Young’s complaint for the want of equity, and for a conditional specific performance of the contract in favor of appellant on his cross-complaint, from which each party has appealed in so far as the decree is adverse to him.

The agreement was entered into on the 2d day of April, 1927, at which time the New England Securities Company of Kansas City, Missouri, was the owner and holder of a mortgage against the entire section of land for $20,000, one-half of which was to be paid out of money Moran was to borrow for Young from said State Land Bank, in order to obtain a release of the west half of said section from the mortgage owned by the New England Securities Company. The escrow contract for the sale and purchase of the west half of said section provided that, in the event Moran could not borrow enough money from said State Land Bank to pay as much as $10,000 on the mortgage of the New England Securities Company, he would apply such amounts as he was able to borrow thereon, and would pay the balance himself and take a note or notes and mortgage from Young on the west half of said section to secure the amount paid by him. The total consideration which Young was to pay Moran for the west half of said section was $35,000, $10,000 of which amount was to be paid by Young’s assumption of one half of the mortgage owned by the New England Securities Company, which he was to pay out of the money to be borrowed from the State Land Bank upon a new mortgage executed by him to it. This undertaking on the part of Moran was incorporated in the escrow contract in the following language:'

“Vendor (A. E. Moran) agrees to secure for purchaser (Charles Young) a State Land Bank loan on the land herein described and hereby sold, said loan to be for the customary term of thirty-three years on the amortization plan, and to be for as great an amount as can be procured through the State Land Bank or Joint Stock Land Bank. It is understood that the interest rate is not to exceed six per cent., and that one per cent, is to be paid on the principal of the loan each year, and that said mortgage shall contain a clause therein whereby purchaser herein shall be granted the privilege of retiring the full amount or any part of the loan on any interest-paying date after the fifth year, or shall have the privilege of retiring the full amount or any part of the loan on any interest-paying date after the first year up to the fifth year by paying a bonus of one-half of one per cent, plus amount of interest due at that time. It is understood that, in the event the loan is made by the State Land Bank or Joint Stock Land iBank, the proceeds of such loan are to be applied on the indebtedness of $10,000, which purchaser herein assumes, and agrees to pay to the New England Securities Company as here-inbefore specified. In the event that the proceeds of such loan shall not he sufficient to retire the full amount of the $10,000 indebtedness due the New England Securities Company (and interest on same, if any due at that time), then in that event vendor agrees to pay to New England Securities Company the amount still due them over and above the amount applied on the indebtedness due by purchaser, and purchaser agrees to execute his note to vendor for the amount so paid by vendor, said note to be due and payable on or before the first day of January, 1931, and to be secured by the same mortgage securing the payment of the three notes of $2,000 each due in 1928, 1929, and 1930, respectively, and bear the same rate of interest.”

The deeds, cheek, stock, etc.,' provided for in the escrow contract were deposited with the People’s National Bank of Stuttgart, to await the inspection of the Mississippi land, the investigation of the stock in the Armour Packing 'Company, the mortgage on the Colorado land, and the procurement of a loan from a State Land Bank by Moran, and the examination and approval of an abstract of title to the west half of said section of land by Young.

On May 2, 1927, A. E. Moran applied to the Southwest Joint Stock Land Bank, located at Little Bock, Arkansas, for a loan of $10,000 on the west half of said section, in accordance with his undertaking in the escrow contract. On May 27 following be was notified that the executive committee of the bank had declined to grant the loan. The declination was based upon the fact that the appraiser’s report indicated that the proposed purchaser of the farm was perhaps a trader or speculator, and nonresident of the State, and not a practical rice farmer. The letter to Moran conveying this information intimated that the committee would be inclined to look on the loan with favor if the title should remain in him. and the farm should have his personal supervision. Subsequently Moran must have informed Young the loan had been declined 'by the Southwest Joint Stock Land Bank, for, in a letter written by Young to Moran on July 20, Young made the following reference to the matter:

“In regard to that loan, I don’t know as it makes any difference to me if they don’t want to make it. Don’t know as I care if I don’t go in debt any more, and if you would just as soon drop the trade, it will be all right with me. You could maybe sell it now for a little more money.”

At a later date, it does not appear just when, Moran had an interview with some of the officials of the Southwest Joint Stock Land Bank concerning the loan, and obtained from them an application for the loan to be signed by Charles Young. This application contained the following clause with reference to the terms and repayment of the loan:

“For a loan of $10,000 for a term of 33 years, with interest at the rate of 6 per cent, per annum, the principal and interest to be payable semi-annually on the amortization plan, according to the amortization table prescribed by the Federal Farm Loan Board, with the privilege of paying additional amounts, or the whole amount of the debt, on any installment date after five years from the date of the loan.”

This application was sent by Moran to Young, but he declined to sign it because it did not contain a repayment clause to the effect that he might retire the full amount or any part of the loan on any interest-paying date after the first year up to the fifth year by paying a bonus of one-half of one per cent, plus amount of interest due at that time. He requested Moran to insert such a clause, but Moran informed him that he had no authority to do so. During the latter part of June, or early in July, Moran requested Young to release the deed to the Mississippi land from escrow, in order that he might sell it to a probable purchaser. On the 8th day of July following, Young declined the request by letter, as follows:

“Mr. Moran:
“Sir: I feel you are asking a right smart of me, when that deed is being held in escrow there. I am only filling my part of our contract. As I see it, that shouldn’t need to hold you up long, if at all. They are certainly taking their time about their loan, but I prefer to wait about this until everything is ready to be completed.
“Respectfully,
“Chas. Young.”

On August 27 following, Young notified Moran that he had examined the abstract, and found that it showed a mortgage for $2,832 unreleased. In the letter he said that he would go down and close the deal at any time they might notify him. Just what occurred in the interim does not appear, but on September 5 thereafter Young wrote the following letter to Moran:

“Mr. Moran:
“Sir: I have been bothered and worried all I am going to. My lawyer tells me that I am perfectly justified in calling that trade off, and you cam return that stuff I have there in the bank, in escrow, and the abstracts that you hold, and I will return yotirs to you.
“As ever,
“Chas. Young.”

Immediately after receiving the letter, Moran wired Young to come to Stuttgart at his expense. In reply Young informed him that he would start down the first part of the following week. He went down, and an attempt was made to adjust the matter, but nothing was accomplished in the way of a settlement. Young testified that Moran tried to get him to assume one-half of the mortgage held by the New England Securities Company without exacting that he get a loan from a State Land Bank to take it up. Moran testified that he informed Young that the Southwest Joint Stock Land Bank at Little Rock had agreed to make a loan for $8,000 and to incorporate in the mortgage the repayment clause which he had been insisting upon. Young then returned to his home, and on September 21 thereafter wrote the following letter to the People’s National Bank at Stuttgart:

"To the People’s National Bank,
Stuttgart, Arkansas:
"You are advised that A. E. Moran of Stuttgart, Arkansas, has failed to comply with his contract with Chas. Young, a copy of which contract you now have, together with other papers, bonds, deeds, cash, note and mortgage, delivered to you to be held in escrow and to be delivered as per instructions attached thereto.
"Now therefore, in view of the inability upon the part of the said A. E. Moran to carry out his agreement, I am compelled to declare the contract at an end; and, in consequence of his failure as aforesaid, I hereby demand that you return to me the aforesaid $5,000 received by you in form of check, the mortgage and note, the stock certificate and the deed to the Mississippi land, and all the papers mentioned and described and delivered in escrow.
"Respectfully,
"Chas. Young.”

On October 29 thereafter he wrote a personal letter to Mr. McCoy, the president of the bank, to the same effect, to which he received a reply refusing to return the escrow papers to him.

Moran testified that he wanted to indemnify Yonng against any loss he might sustain if the Southwest Joint Stock Land Bank refused to incorporate the .repayment clause in its mortgage, hut that Young refused to close the deal on any other basis than a discount on the original contract price.

Both Moran and McCoy testified that the officials with whom they had an interview with reference to making the loan agreed to incorporate in the mortgage the repayment clause contained in the escrow contract between Moran and Young.

G-rady Miller, vice-president and secretary and member of the board of directors of the Southwest Joint Stock Land Bank, testified that, some time after the application for the $10,000 loan was disapproved, Moran and McCoy came to the bank and asked that the application he reconsidered, and that, after further discussion, it was agreed that an $8,000 loan would he made; that an application was made for Young to sign, hut that it was never returned to the bank; that he had no recollection of any agreement to the effect that the mortgage, when executed to secure the $8,000 loan, should contain a repayment clause in accordance with the provisions- of the escrow contract; that the basis upon which payments might he made within the first five-year period was upon payment of a bonus of one-half of one per cent, plus the amount of interest due at the time; that he had no recollection of any special arrangement to allow Young to repay within the first five-year period on the basis of paying a bonus of one-half of one- per cent, plus the amount of interest due at that time.

Moran’s only abjection to the decree rendered by the trial court is that it imposed, as a condition for sper ciñe performance of the contract, that he should procure from the source and upon the terms and conditions set forth in the escrow contract, a loan upon said land for Young. Young contended, on the other hand, that the trial court erred in rendering a conditional decree for the specific performance of the executory contract, and, instead of rendering such a decree, he should have rendered a decree rescinding the contract and ordering a return to him of all escrow deposits which he made. Moran bases his contention:

(1). Upon the theory that the undertaking to obtain a loan was not a part of the consideration of the contract, but was a collateral undertaking, for the breach of which Young might recover damages but could not rescind the contract. The cases cited by him in support of the contention were dealing with contracts fully executed. The rule invoked has no application to executory contracts. (2). Upon the theory that the agreement to obtain the loan was a promise to do something in the future, and would furnish no grounds for canceling the contract. The cases cited by him in support of this contention related to future promises made for the purpose of inducing parties to enter into the contract, and not to promises forming a part of the contract. The promise in the instant case to obtain a loan was a part of the contract itself, and a failure to redeem the promise was just as good ground for rescinding the contract as a failure to furnish an abstract or to perform a part of the contract. (3). Upon the theory that he fully performed the agreement to obtain the loan, and that the accomplishment thereof was thwarted by Young’s failure and refusal to sign the application. The application he secured from the Southwest Joint Stock Land Bank did not contain the provision with reference to the repayment of the loan within the five-year period which was a part and parcel of the written escrow contract. Young therefore had a perfect right to refuse to sign it. On the contrary, Moran told him that he did not have authority to insert such a provision in the application. Moran should have presented an application conforming in substance to the repayment clause in the written escrow contract.

Again, G-rady Miller, who seemed to be in control of this particular loan, stated that he had no recollection of the hank ever agreeing to,make same upon the basis that Young might repay the full amount or any part of the loan after the first up to the fifth year by paying a bonus of one-half of one per cent, plus amount of interest due at that time. He said that it was not the custom to do so, and that he could not recall that any exception had been made in this particular application.

Moran also argues that no time was specified for him to obtain a loan, and for that reason the contract should not be rescinded. "Where no time was fixed, he had á reasonable time in which to perform the conditions and the requirements contained in the written escrow contract. This he did not do. The escrow contract was entered into on April 2,1927, and at the time of the institution of the suit he had not obtained even a promise of a loan on an application embracing the repayment provision contained in the escrow contract relative to retiring the loan during the first five-year period. More than a reasonable time had expired between the date of the contract and the date on which Young demanded a rescission thereof.

Under the evidence Young was entitled to a rescission of the contract, and the court erred in dismissing his complaint praying for a rescission and cancellation thereof and the return of the instruments deposited in escrow.

On account of the error indicated the decree is reversed, and the cause is remanded, with directions to the court to render a decree in accordance with this opinion.