author: ¡Smith, J.

text:
    Fitzhugh v. First National Bank of Batesville.
    Opinion delivered May 21, 1928.

      Ernest Neill -and 8. M. Casey, for appellant.

      Cole & Poindexter, for appellee.
   ¡Smith, J.

.Appellants filed suit against the First National Bank of Batesville, and for their cause of action alleged the following facts:

'They were sureties on the official bond of William J. DeCamp, as sheriff and collector of Independence County. On the 30th day of December, 1926, the accounts of the said DeCamp as collector were being examined and audited by the commissioners of accounts of Independence County, and it appeared certain at the time that the said De'Camp was short in his accounts in a considerable sum, and, as his term of office expired December 31, 1926, it was necessary for him to make some arrangement satisfactory to the county regarding said shortage. At that time DeCamp had not filed his final settlement with the county as collector, and did not have his final report ready to file. The commissioners of accounts, the prosecuting attorney and the county judge required that said DeCamp make some provision that would insure the county in collecting said shortage when the amount thereof was finally determined, and thereupon DeCamp gave to J. A. Kennard, one of the commissioners of accounts, a check signed by him, drawn upon the defendant bank, in blank, payable to the said Kennard, agent for Wm. J. DeCamp, to cover the amount that the said DeCamp might later be found to owe Independence County for or on account as collector of delinquent personal taxes, and assured Kennard that he had the money in the bank to pay said check for such amount as might be inserted therein. That the said Kennard presented said check to the defendant bank and requested it to guarantee the payment of said check when later presented, and the defendant bank thereupon executed to Kennard the following agreement:

“Whereas, Wm. J. DeCamp, sheriff and collector, Independence County, Arkansas, has represented to us that he, as such official, is now due to make settlement of certain delinquent personal taxes collected by him for the years 1924 and 1925, together with other amounts checked by commissioners of accounts, now in session, and charged against him; and he not having’ time to make his report and settlement covering same ¡before the close of his term of office, December 31, 1926; and said Wm. J. DeCamp, advising that he had employed J. A. Kennard to make up, report and make settlement with the proper officials authorized to receive and receipt for .such sums or amounts as may be found due to (be paid -by said W. J. DeCamp, as sheriff and collector for said years, and asked that the First National Bank honor his (W. J. DeCamp’s) check for the amount filled in by said J. A. Kennard upon blank check given this date to said Ken-nard bearing signature of said Wm. J. DeCamp, not to exceed $3,500; therefore, as assistance to the carrying out the foregoing request and agreement, we, the First National Bank of Batesville, Arkansas, do hereby agree to honor such check upon presentation and filing with us of a certified copy of such report and settlement, and also the costs of preparing same, check not to exceed $3,500. (Signed) John Q. Wolf, cashier.’

“That the county authorities and plaintiffs, as sureties upon DeCamp’s bond, relied upon this signed agreement of the defendant bank that it would pay the check of De’Camp on account of his shortage in any amount not exceeding $3,500, upon presentation of a certified copy oif the settlement made up by Kennard, as stated in the agreement, and thereafter, resting secure in the belief that they would not be required to pay anything to the county as sureties of DeCamp, unless the shortage exceeded $3,500, these plaintiffs, sureties, took no steps to protect themselves from such liability and made no effort to obtain any security from the said DeCamp to protect themselves as his bondsmen, which they could and otherwise would have taken.

“That, after the completion of the audit and the amount of the shortage was determined, a judgment was rendered therefor by the county court, and the county judge, on May 10, 1927, caused the check to be presented to tlie defendant bank, signed by DeOamp, filled out for $3,500, accompanied by a certified copy of tbe report and settlement made up by Kennard, as stipulated in tbe agreement made (by tbe defendant bank, showing an indebtedness due Independence County of more than $3,500 for delinquent personal taxes collected by DeCamp, and demanded payment of tbe check. Tbe check as presented was dated.May 10, 1927, was payable to J. .A. Kennard, • agent for W. J. DeCamp, and was indorsed £ ‘J. A. Kennard, agent for W. J. DeCamp. ’ This demand for payment was refused, and tbe cashier of tbe bank made tbe following indorsement on the back of tbe check: ‘Payment stopped by due written notice by W. J. DeCamp.”

Thereafter, on account of tbe refusal of the bank to pay said check, tbe plaintiffs, as sureties on DeCamp’s official bond, were required to pay to Independence County tbe sum of $3,530.54, that sum being the amount of tbe shortage.

Plaintiffs alleged that, by reason of such payment to the county, they became- and are subrogated to all the rights and remedies of the county against the bank on account of its agreement and promise to pay the check, of DeOamp, as set out albove. Wherefore they prayed judgment against the bank for $3,500.

The defendant bank filed a demurrer to the complaint, which was sustained, and, plaintiffs standing on the complaint, the same was dismissed, and this appeal is from that decree.

We think the complaint stated a cause of action, and that the court was in error in sustaining the demurrer. The agreement signed by the bank in regard to the payment- of the check was, in legal effect, a certification thereof in a sum not exceeding $3,500, and making the same payable to the holder thereof upon the presentation to the bank of the report of Kennard showing the amount of the shortage.

In the recent case of Causey v. Eiland, 175 Ark. 929, 1 S. W. (2d.) 1008, it was held that the certification of a check constitutes a new contract between the holder and the certifying ■ bank, whereby funds of the drawer are, in legal contemplation, withdrawn from his credit and appropriated to the payment of the check, and the bank becomes the debtor of the holder, and absolutely liable to pay the check when presented for payment.

It i>s true plaintiffs were not mentioned in this agreement, but it is also, true that the purpose of the agreement was to pay the shortage of DeCamp in a sum not exceeding $3,500, and the refusal of the bank to perform this agreement made it necessary for the plaintiff sureties to pay this sum, in addition to the excess above it, to discharge their liability as sureties on DeCamp’s bond. The county was the beneficiary of this agreement, but it received the benefit thereof when the sureties paid the shortage to the county.

In the case of Carroll County Bank v. Rhodes, 69 Ark. 43, 63 S. W. 68, it was held that the sureties of a county collector, who paid to the State a sum of money misapplied by the collector to. the payment of a debt due by him to a bank, will be subrogated to the State’s right of recourse against the bank. To the same effect see also Boone County Bank v. Byrum, 68 Ark. 71, 56 S. W. 532.

In the case of Wilson v. White, 82 Ark. 407, 102 S. W. 201, 12 Ann. Cas. 378, a sheriff took a bond as security for a fine and costs in a criminal case which did not conform to the requirements of the statute in that behalf (§ 3278, C. & 'M. Digest), and it was held that the sheriff was not acquitted of his liability for the fine and costs, as he would have been had the bond taken by him conformed to the statute, and he was required to pay to the county the amount of the fine and costs; but it was also held that, in making this payment, he was not a volunteer, and that he became subrogated to the rights of the county in the bond, and a judgment in favor of the sheriff against the surety on the bond, which was not a statutory bond, because of its failure to conform to the statute, was affirmed.

In the case of Bank of Midland v. Harris, 114 Ark. 344, 170 S. W. 67, Ann. Cas. 1916B, 1255, it was held (to quote a syllabus) that “the county officer who pays to the county money due the county in the regular course of his settlement with the county, is subrogated to the right of the county against the stockholders of a bank refusing to turn over to him county funds deposited therein. ’ ’

We conclude therefore that the plaintiffs are entitled to be subrogated to any right the county may have had in this certified check.

Appellee insists that the demurrer was properly sustained for the reason that Independence County was not made a party to this suit. This contention may be answered by saying that appellee filed only a general demurrer, and the statute provides (§ 1190, C. & M. Digest) that the demurrer shall distinctly specify the grounds of objection to the complaint, and, unless it does, it shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action. Murphy v. Myar, 95 Ark. 32, 128 S. W. 359, Ann. Cas. 1912A, 573; Tomlinson Chair Mfg. Co. v. Joppa Mattress Co., 122 Ark. 566, 184 S. W. 32; Creamery Package Mfg. Co. v. Wilhite, 149 Ark. 576, 233 S. W. 710.

Appellee also insists that the complaint fails to show any cause of action in favor of the county on the check, for the reason that it was payable to the agent of the drawer, and was therefore, in effect, a check payable to the drawer himself, and also that the complaint does not allege the performance of the conditions under which the bank agreed to honor the check.

We think the allegations of the complaint sufficiently recite facts to make it appear that, although Kennard was the agent of DeCamp, the check was not to foe collected for DeCamp’s account, other than that the proceeds of the check, when collected, should be applied to the discharge of an obligation for which DeCamp was primarily liable, and in this sense only was the payee the agent of the drawer.

It is also true, as appellee insists, that the check was dated some months later than'the agreement; but we think: the agreement contemplated this, as the check was to remain unfilled as to amount until the amount of the shortage had been ascertained.

It is true also, as appellee insists, that the check was not payaJble to the plaintiffs, was not indorsed to them, and was not indorsed by them or by the county; but the agreement did not so contemplate. ICennard was constituted as agent, not only for DeCamp but for all parties concerned, and the agreement contemplated that Ken-nard should collect the money from the bank on the check and should see to the application of its proceeds.

It is finally insisted that the complaint does not allege that the report of the audit as made by Kennard shows that the cost of the audit had been paid. We are of the opinion that this is an immaterial allegation, as the obligation of the bank was to honor the check for a sum not exceeding $3,500, although a part of that amount was for the cost of the report, and the allegations of the complaint are that the plaintiffs paid on account of the shortage a sum greater than the amount for which the bank had agreed to honor the check.

We conclude therefore that the court was in error in sustaining the demurrer, and the decree will therefore be reversed, and the cause remanded with directions to overrule it.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Kirkpatrick v. American Railway Express Company.
    Opinion delivered May 21, 1928.

      Tom F. Digby, for appellant.

      John E. WIiller and Charles W. Mehaffy, for appellee.
   Smith, J.

Appellant brought this suit for damages to compensate an injury -which he alleged was sustained by him through the negligence of a fellow-servant of the defendant express company while he and his fellow-servant were engaged in loading* express into a motor truck. His testimony was to the effect that, while he was in a stooping position through placing an express package in the truck, his fellow-servant negligently permitted a rod or shaft of iron, which had been shipped by express and was being placed in the truck for delivery, to strike him across the back. The testimony on the part of the defendant express company was to the effect that appellant had not been struck at all, and that, if appellant was struck, the blow was a slight one, and did not cause the sickness and loss of time of which appellant later complained.

There was a trial before a jury, and a verdict and judgment in favor of the defendant, from which is this appeal.

The instructions given at the trial are not set out in the brief of counsel for appellant, but he does set out an instruction numbered 3, which was given over his objection. This instruction reads as follows:

“You are instructed that the burden of proof in this case is on the plaintiff to establish his right to recover by a preponderance or a greater weight of the evidence. In the beginning of the trial the law assumes that the defendants were not guilty of any negligence with respect to the cause of the alleged injury received iby the plaint tiff, if you find that he did in fact receive an injury. This presumption attaches and extends throughout the trial in favor of the defendants, unless it is overcome by evidence to the contrary. If you find that the greater weight otf the same is in favor of the defendants, or if you find that it is evenly balanced, then in either event your verdict will be for the defendants. ’ ’

Only a general objection was made to this instruction at the trial, and the objection now urged against it is that appellant, “at the time of his injury, was in a place where he had the right to be, and that this place was safe until made dangerous by the negligence of the fellow-servant, and the platform from which the piece of shafting was being loaded into the truck was under the exclusive control and management otf the defendant, and the accident would not have occurred in the usual and ordinary method of its handling without negligence, and the fact that the accident occurred, if it did occur, would raise the presumption of negligence, and the doctrine of res ipsa loquitur applies.”

We think counsel is mistaken in the objection made to the instruction, as the doctrine of res ipsa loquitur does not apply to the facts of this case. . If that doctrine applied here, it would apply in any case where a servant was injured through, the negligence. of a fellow-servant, and the doctrine has never been so broadly applied.

In the case of Chiles v. Fort Smith Commission Co., 139 Ark. 489, 216 S. W. 11, 8 A. L. R. 493, we quoted with approval from the chapter on Negligence in 20 B. C. L., § 156, as follows:

“More precisely, the doctrine res ipsa loquitur asserts that, whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as, in the ordinary course of events, does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery, in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. * * * :The presumption oif negligence herein considered is, of course, a rebuttable presumption. It imports merely that the plaintiff has made out a prima facie case which entitles him to, a favorable finding unless the defendant introduces evidence to meet and offset its effect. And, of course, where all the facts attending the injury are disclosed by the evidence, and nothing is. 'left to inference, no presumption can be indulged — the doctrine res ipsa loquitur has no application. ” -

Here appellant detailed all the circumstances attending his alleged injury, and these, in so far as they tended to show negligence on the part of the fellow-servant, were denied by the latter. There was therefore nothing left to inference, and no presumption could ¡be indulged, and the doctrine res ipsa loquitur therefore has no application. Moreover, it is said in the 'Chiles case, supra, that “this doctrine (res ipsa loquitur) does not dispense with the requirement that the party who alleges negligence must prove the fact, but relates only to the mode of proving it.”

The instruction is in a form not to toe approved, as it appears to toe argumentative, tout that objection was not made to it; tout it is not inherently erroneous.

The burden of proof was on the plaintiff to establish his right to recover toy a preponderance or greater weight of the evidence, and this burden was on him though the doctrine res ipsa loquitur applied, although the application of that doctrine in a proper case might enable him to discharge the ¡burden of proof resting upon the plaintiff. The burden of showing a right to recover rests upon the plaintiff in the whole case, and there can be no recovery unless that ¡burden has been discharged.

Strictly speaking, the instruction makes the burden of showing negligence analogous to the presumption of innocence which attends one accused of crime, and in this respect it is not correct, but this is a defect which should have been raised by a specific objection.

The plaintiff’s ¡burden in suits of this character is not that of overcoming a presumption of law, like that of innocence in a criminal trial, but is rather that of establishing affirmatively a .state of facts which, if true, warrants the finding that one has been injured through the negligence of another under applicable principles of law .governing the particular case, and, if that burden is not discharged, the plaintiff has simply failed to make such a case as the law requires him to make before recovering a judgment for damages.

We conclude, in view of the absence of a specific objection, that the instruction, while objectionable in form, was not prejudicial in fact.

The testimony shows very clearly that, at about the time of plaintiff’s alleged injury, he became very ill, and (for some months was unalble to perform manual labor. But, as we have said, it was the theory of defendant that appellant’s illness was not occasioned by his alleged injury.

It appears that appellant carried a policy in the Continental Casualty Company, which insured him against accidental injuries, and which provided certain sick (benefits in case of disability through illness. Appellant became ill about the '2'2d of December, 1925, and it is on this date that he claims to have been injured by the negligence of his fellow-servant. He was compelled to give up his employment, and, having been an enlisted man during the World War, he was admitted as a patient in one of the veterans’ hospitals in Oklahoma, where he went for treatment, but, before ' going there, he had received treatment from local physicians in 'Stuttgart, the place of his employment by defendant and of his alleged injury.

Appellant presented a claim to the insurance company under his policy, which was not allowed, and he finally employed an attorney to bring a suit on the policy, which was later compromised by the payment of $250. Defendant offered in evidence the complaint filed in that case and the proof submitted to the insurance company in support of the claim for sick benefits. Thé complaint against the insurance company alleged that the insured .became ill and unable to work, and prayed judgment for the amount of the sick benefits, but contained no allegations in regard to an injury, although the policy sued on specifically covered accidental injuries.

The admission of this complaint in evidence is assigned as error. But we think no error was' committed in its admission. Appellant admitted that the filing of the complaint was authorized (by him, and was based upon information furnished by him to the attorney who prepared it. As was said in the case of Taylor v. Evans, 102 Ark. 640, 145 S. W. 564: “It was competent, for the purpose of proving* an admission on the part of the plaintiff, and also for the purpose of impeaching him, to read the complaint in evidence, or to prove by him, on cross-examination, that he had made allegations in the original complaint inconsistent with his present contention.” See also the recent case of Greer v. Davis, ante, p. 55, where the authorities on the admissibility of pleadings as declarations against interest or by way of impeachment were considered.

After appellant’s discharge from the hospital, he wrote the superintendent of the express company two letters, in which he asked to be reinstated as an employee, in both of which he discussed his physical condition, but he did not refer in either letter to his alleged injury. In one of these letters he wrote, under date of March 17, 1926: “I have improved a bit, and I feel that about the first of April I could do some kind of light work, as I could not say if I wi'll be able to continue to work at truck delivery any more,' from what the doctors told me. Yon can go to the Veterans’ Bureau, when my files get there from the hospital, and learn from them more than I can tell you. ’ ’

After the institution of this suit the defendant took the deposition of R I. Betty, who was the chief claim adjuster of the insurance company, and that official made exhibits to his deposition the correspondence which the company had with appellant and the reports of the physicians who had attended appellant. In the agreement to take these depositions it was stipulated that “all formality in the taking, transcribing and forwarding of said depositions is hereby waived. The right to except to all evidence adduced for incompetency, irrelevancy and immateriality is expressly reserved.”

No exception to these depositions was filed before the trial, as required (by §§ 4248 and 4249, C. & M. Digest, but, when they were offered in evidence at the trial, appellant objected to their admission upon the ground that “the evidence in the deposition is irrelevant, collateral to the issues, and immaterial.”

No objection was made to the exhibits to Betty’s deposition upon the ground that they contained hearsay testimony, and much of the testimony was not irrelevant, collateral to the issues, nor immaterial.

In the case of Jarvis v. Andrews, 80 Ark. 277, 96 S. W. 1064, it was said: “There was an objection to the reading of the deposition, but that was a general objection to all of it; and if any part of the evidence was admissible, the objection falls.” It was there also held (to quote a syllabus), that “a general exception to two depositions is insufficient to point out the objection that one of them contains hearsay testimony.”

It must be confessed that the depositions contain hearsay testimony, but that objection was not made. It may also be said that the depositions which contained the reports of the doctors on the condition of appellant and the cause thereof, contained statements which would have been inadmissible as privileged under § 4149, C. & M. Digest, had that right not been waived in the letter to the superintendent of the express company directing that officer to secure this information. 'Moreover, that objection was not made to the testimony.

Among the exhibits to the deposition of Betty were the claimant’s preliminary notices of illness, in which he was required to state in detail the cause and extent of his disability, and in neither did he mention his alleged injury. The reports of the doctors were to the effect that appellant had suffered from influenza, chronic colitis, and stone in the kidney.

.There was offered in evidence, over appellant’s objection, the draft of the insurance company for $250 in full settlement of all claims against the company for appellant’s illness and consequent loss of time. This document was offered in evidence as a part of tlie defendant’s proof that appellant had made no contention that his alleged injury had anything- to do with his illness, thereby contradicting* the testimony given iby him at the trial. It was not competent for any other purpose, but, inasmuch as the instructions have not been abstracted, it must be conclusively presumed that the instructions given limited the jury’s consideration of this document to the only purpose for which it was admissible.

Finding no prejudicial error, the judgment must be affirmed, and it is so ordered.


text:
    S. E. Lux Jr. Mercantile Company v. Jones.
    Opinion delivered May 21 1928.

      J. E. Gregson and John W. Nance, for appellant.

      G. A. Fuller, f.or appellee.
   Smith, J.

Separate suits were brought by appellees against appellant, which were by consent consolidated and tried before the court, without the intervention of a jury, as a single suit. The trial court made an elaborate finding of fact, which states the issues, and from which we copy as follows:

The S. E. Lux Jr. Mercantile Company operates a mercantile business in Topeka, Kansas, and in that-connection buys and sells canned tomatoes in carload lots. On March 30, 1927, the mercantile company purchased 5,000 cases of canned tomatoes from H. H. Wampler, trading as the Fort .Smith Canning Company, by a contract in writing, to be delivered when directed, but within ninety days, and paid therefor by an acceptance draft, which was duly accepted on April 9,1927, and later paid; that, in order to perform his contract with the mercantile company,' Wampler commenced negotiations with the plaintiffs about May 1, 1927, for 3,000 cases of tomatoes, the same to be paid for before delivery; that on May 14, 1927, P. F. Schilling, the secretary and treasurer of the mercantile company, went to Fort Smith to ascertain why the Fort Smith Canning Company had not made delivery of the tomatoes, and there learned that the latter company had no tomatoes for shipment. Schilling then visited the plaintiffs to see about tomatoes which Wampler claimed to have bought from plaintiffs for shipment to the mercantile company, and was informed by the plaintiffs that no tomatoes would be sold and delivered to Wampler until payment therefor was first made. The following Sunday Wampler appeared, and .gave plaintiffs checks covering the purchase price of the tomatoes, but plaintiffs advised Wampler that the tomatoes could not be shipped until the checks had been paid.

Plaintiffs had been furnished labels' which the mercantile company desired placed on the tomatoes, and which had been placed on them, and the tomatoes-were loaded in ears of the 'Missouri & North Arkansas Railroad Company, but it was agreed that bills of lading would not be taken out until the checks were paid or it was ascertained that they would be paid.

After giving the checks to plaintiffs, Wampler, without the knowledge or consent of the plaintiffs, obtained bills of lading, and ordered the tomatoes shipped. The following day, which was Monday, plaintiffs telephoned the bank on which Wampler’s checks were drawn, and were advised by the bank that the checks were worthless.Plaintiffs thereupon went to the railroad station agent and advised him that the tomatoes must not be shipped, and were informed by the agent that the tomatoes had already been shipped and bills of lading issued therefor. A representative of the plaintiffs hurriedly consulted an attorney, who brought separate attachment suits for each of the plaintiffs, and the cars containing the tomatoes were located at Eureka Junction, and the attachments were levied upon them and the cars were reshipped to iBerryvi'lle, where they had been loaded, and were there unloaded.

Before the cases were called for trial the plaintiffs amended their complaints, and recited in detail the facts above -summarized, and alleged that the possession of the tomatoes had been fraudulently obtained from them. They alleged their ownership of the tomatoes, and prayed judgment for the possession thereof. As thus' amended the complaint contained two counts, one in attachment and the other in replevin. A demurrer to the first count was filed and sustained upon the ground that the tomatoes at the time of the institution of the suit were in transit in interstate commerce under through bi'll-s of lading.

The judgment of the court also found the fact to be that Schilling had attempted to persuade plaintiffs to consent to the shipment of the tomatoes before the issuance of the bills of lading, upon the representation that Wampler would pay, but that plaintiffs had declined to consent to the shipment until they were first fully paid for their tomatoes. The court expressly found the fact to he that the consignee, the mercantile company, was not an innocent purchaser of the tomatoes.

The testimony fully sustained all the findings of fact herein stated, and, in view of the fact that the mercantile company paid plaintiffs nothing for the tomatoes, ¡but received them in consideration of advances previously made to Wampler, it was not an innocent purchaser of the tomatoes. Hamilton v. Rankin, 108 Ark. 552, 158 S. W. 496.

The court further found that the ¡bills of lading issued by the railroad company, which were produced at the trial, were returned to it.

Judgment was rendered by the court in favor of the plaintiffs for the possession of the tomatoes, and from this judgment only the mercantile company has appealed.

For the reversal of the judgment of the court ¡below it is earnestly insisted that by attaching the tomatoes the plaintiffs had ratified the sale thereof, and could not later amend their complaint to sue in replevin, although it had been agreed that the title to the tomatoes should not pass until they were fully paid for.

Appellant is correct in its contention that a vendor who has made a conditional sale, by which the title to the property sold is reserved until the purchase price has been fully paid, may waive the reservation of the title and sue for the purchase price, and, when this election has been deliberately made, he cannot thereafter reassert his title. Baker v. Brown Shoe Co., 78 Ark. 501, 95 S. W. 808. We are of the opinion, however, that there was no such election in this case, because, before the trial, the plaintiffs amended their complaint and alleged their title to the tomatoes and their right to the possession thereof, and the cause was tried upon that issue. Under the cause tried by the court the plaintiffs did not pray for judgment for the amount of the purchase money.

It was shown that, when the attorney who prepared the original complaints was more fully advised as to the facts, he amended the complaints and prayed for the recovery of the possession of the tomatoes. The demurrer to the original complaint was sustained, and no objection was or is made to that action.

In legal effect the suit in attachment was abated and one in replevin was substituted.

In the case of Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585, it was said:

“Nor were appellees estopped, on account of having instituted a suit at law against Law and Bunn, to seek a foreclosure in equity. That was not assuming an inconsistent position. They had the right to sue at law on the notes, without waiving their mortgage lien. Whitmore v. Tatum, 54 Ark. 457, 16 S. W. 198; Rice v. Wilburn, 31 Ark. 108. It is only where one of two or more inconsistent remedies is pursued that the election to.pursue the one is an abandonment of the other. Besides, when appellees instituted the suit at law they did so in ignorance of a material fact concerning the matter, viz., that there had been no appraisement of the land. They were not bound by any election made in ignorance of material facts. White v. Beal & Fletcher Gro. Co., 65 Ark. 278, 45 S. W. 1060; Dudley E. Jones Co. v. Daniel, 67 Ark. 206, 53 S. W. 890.”

In the chapter on Sales, in 23 R. C. L., § 211, page 1388, it is said:

“The acceptance of the buyer’s check is not regarded as payment, but only as conditional payment, and, if the check is dishonored on due presentation, the seller’s right to reclaim the property is not lost. It has been held that the fact that the seller, on the dishonor of a check so given, improvidently sues out an attachment against the buyer, such proceeding, however, being promptly dismissed without the accrual o'f any benefit to the seller or injury to the buyer, will not constitute such an election of remedies as will preclude him from reclaiming possession. ’ ’

See also chapter on Election of-Remedies, in 20 C. J., & 26, page 35; Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107.

By § 1077, C. ■& M. Digest, it is provided that “the plaintiff may strike from his complaint any canse of action at any time before the final submission of the case to the jury or to the court, where the trial is by the court. ’ ’

The portion of the complaint praying judgment for the debt was stricken out before the final submission 'of the cause, and we think there was no such election to sue for the purchase price as precluded the plaintiffs from praying judgment for the possession of the tomatoes.

It must be remembered that our Code of Civil Procedure, as interpreted by this court, is most liberal in the matter of permitting such amendments of pleadings as are necessary to present the questions in issue for submission on their merits.

It is finally insisted that neither a suit in attachment nor one in replevin would lie, because, at the time of the institution of the suit, the tomatoes were in transit in interstate commerce, under bills of lading covering a through shipment. But it will be remembered that this shipment was unauthorized, and was wrongful. The consignor had no authority to make the shipment, and the consignee had no right to the possession of the goods in transit. The true owners of the tomatoes were entitled to retake them wherever they found them. No right existed on the part of the consignor or the consignee to demand that the wrongful shipment be consummated. The case made by the pleadings as submitted to the court was that of the true owners of property seeking to recover the possession thereof from one who, through the fraud of another, had obtained the possession thereof.

By § 8604, U. S. Compiled Statutes 1916 (vol. 8, title “Interstate and Foreign Commerce,” p. 9316), it is provided that: “If goods are delivered to a carrier by the owner, or by a person whose act in conveying the title to them to a purchaser for value in good faith would hind the owner, and an order hill is issued 'for them, they cannot thereafter, while in the possession of the carrier, be attached by garnishment or otherwise, or he levied upon under an execution, unless the bill be first surrendered to the carrier or its negotiation enjoined. The carrier shall in no such case be compelled to deliver the actual possession of the goods until the bill is surrendered to him or impounded by the court.”

• It is insisted that under this statute the tomatoes were not subject to seizure under either the writ of attachment or the order of delivery. This statute does not apply, however, for the reason that the goods were not delivered to the carrier by the owner nor by a person whose act in conveying the title to them to a purchaser for value in good faith would bind the owner. The consignor was without authority to ship and the consignee Avas without authority to receive. Neither acted for the owner, and both were without authority to do so.

The judgment of the court 'below appears to be correct, and it is therefore affirmed.


author: Humphreys, J.

text:
    Pollock v. Hamm.
    Opinion delivered May 21, 1928.

      Daily & Woods, for appellant.

      Pryor, Miles & Pryor, for appellee.
   Humphreys, J.

Appellee, a young woman twenty-six years of age, and an employee of the First National Bank, while on her way to lunch was run over and injured at the intersection of North E and 17th Streets, in the city of Fort Smith, by an automobile truck owned by appellants, which was being driven by a negro, Ike Zackery, while delivering goods for them.

Appellee got off an east-bonnd street car, when it stopped at the intersection of said streets in a residential portion of the city, and, in accordance with a general custom, passed north in front of the street-car in the direction of her home. This action on her part was contrary to the traffic ordinance of the city, which required pedestrians, after alighting from street cars, to proceed to the right-hand curb of the street. When starting to get off the car, appellee looked west, and, as she alighted, east, to see whether any automobiles, were approaching from either direction, but did not observe this truck, or any other.

The testimony introduced by appellee tended to show that, just after she passed beyond the line of the street car, she was struck by the truck, which approached rapidly,' without warning, from the east on E Street and on the left or north side of the standing street car, and she was hurled to the gutter.

The testimony introduced by appellants tended to show that the truck slowly approached the street oar to the rear and left-hand side thereof, and that appellee passed in front of the street car and east, to a distance of about twenty-five feet, and, while hurriedly crossing Seventeenth Street, between the street-car tracks, sprang in front of and was struck by the truck, which the driver ■had turned to the south around the street car, in an effort to get on the right-hand or south side of Seventeenth Street. This action on the part of the driver of the truck was contrary to the traffic ordinance of the city, as well as the State traffic law, which prohibited drivers of motor vehicles from overtaking and passing any street car proceeding- in the same direction when the street car had stopped and when a traversable portion of the highway existed- on the right of said street car, and which restricted the speed at which drivers might drive motor vehicles, and which required them to stop in ten feet in the rear of street cars when they had stopped, -until alighting passengers could reach the adjacent sidewalk.

As a result of the collision appellee was removed to a hospital in an unconscious condition, where she was compelled to remain three or four weeks for treatment. An X-ray examination developed that one of her toes was broken, one of her shoulders slightly fractured, and her pelvis fractured on one side. She also received a number of cuts and bruises. Her hips and thigh were placed in a plaster of paris. cast. She suffered a great deal, and still suffers. The result was a tilted pelvis, which caused the shortening of three-fourths of an inch of one limb and the probable interference with or prevention of the normal process of child-bearing.

Appellee brought suit against appellants in the circuit court of Sebastian County, Fort Smith District, to recover damages for the injuries, alleging that she received them on account of the negligent operation of the truck by their driver.

Appellants'filed an answer to the complaint, denying negiigence on the part of their driver in operating the truck, and interposing the further defense of contributory negligence on the part of appellee.

The cause was submitted upon the issues joined by the pleadings, the testimony adduced by the parties responsive thereto and the instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee for $10,000, from which is this appeal.

Appellants’ first contention for a reversal of the judgment is that the verdict was excessive. According to the weight of the evidence, appellee’s injury to the pelvis is permanent, the tilted position thereof resulting in a shortening of one of the limbs and producing a condition which may interfere, and probably will, with the normal process of child-bearing. In view of the extent and permanency of the injury, the amount awarded is not excessive.

Appellants’ next contention for a reversal of the judgment was the giving of instructions numbers. 7, 8 and 9, with, reference to violations of the State traffic law, and the refusal to give instruction No. 14 requested by appellants. Instruction No. 7 is as follows :

“You are instructed that, in determining whether or not the driver of the truck was negligent, the law is that the' driver of a motor vehicle shall-not overtake and pass any street car proceeding in the same direction when the said street car is temporarily at rest, when a traversable portion of the highway exists to the right of said street car.”

Instructions numbers 8 and 9 are like No. 7, except that they refer to other violations of the regulatory traffic statutes.

Instruction No. 14, which the court refused to give at appellants ’ request, is as follows:

“You are instructed that the mere fact that a motor truck or automobile is driven at a greater rate of speed than prescribed by the statute, or that the driver fails to come to a stop behind a standing street car, or that the driver passes to the left instead of to the right of a street car, do not establish negligence as a matter of law, but the violation of such statutory provisions may be considered by the jury only as evidence of negligence.”

It is argued that by giving instructions numbers 7, 8 and 9 and refusing to give instruction No. 14, the court, in effect, told the jury that a violation of the State traffic law by a driver of motor vehicles constituted negligence per se, whereas the rule is that such violations are merely evidentiary of negligence on the part of such driver. It is true that violations of the State traffic statutes are merely evidentiary of negligence, and not conclusive of the issue. Mayes v. Ritchie Gro. Co., ante p. 35. We do not, however, interpret the instructions to mean that violations of the traffic law constitute negligence per se. Neither one of the instructions told the jury to find for appellee in case appellants’ driver violated the law. They merely declare what acts constitute violation of the State traffic law, and told the jury it might' consider any violations thereof in determining the issue of negligence. Appellants offered instruction No. 14 to cure the alleged defect in instructions numbers 7, 8 and 9, given by the court, and, if such defect existed, it would have constituted prejudicial error to refuse to give it, if such error was not cured by some other instruction given by the court. Instruction number 6, given by the court at the request of appellants, was substantially the same as their requested instruction No. 14 refused by the court. Instruction number 6, given by the court, is as follows:

“The jury are instructed that neither the traffic statutes of this State nor the ordinances of the city of Port Smith which have been introduced in evidence create any civil liability against the defendants, and are only to be considered by the jury in passing upon the question as to whether there was negligence upon the part of either plaintiff or defendants.”

Appellants’ next contention for a reversal of the judgment is that the court erred in admitting the proof of a general custom violative of the city traffic law, in response to the .charge of contributory negligence. If violation of the traffic law constitutes negligence per se, it would have been error to admit a general custom in explanation of such violation, but it will be remembered that such violations are only evidentiary and not conclusive of negligence. The custom which the .court admitted in evidence was to the effect that pedestrians alighting from street cars at the intersection of North E and Seventeenth Streets, who lived on the north side of E Street, had for many years passed north around the front of east-bound street cars, when they stopped and before they started again. The motorman on the street car from which appellee debarked at the time she was injured testified that such custom had existed for eighteen years.

The custom is also assailed upon the ground that it was unreasonable. Unreasonable as countenancing an act which an ordinarily prudent person would not have done. We cannot say, as a matter of law, that walking in front of a street ear which had stopped for the purpose of allowing- its passengers to get on and off was an unreasonable tiling to do. There is no special hazard or danger in doing so, especially when the motorman waited for alighting passengers to do that very thing.

The custom is also assailed because it was not shown that the negro driver had knowledge of its existence. The driver had been delivering goods for appellant in the truck for more than five months when the injury occurred. From this fact alone the jury may have reasonably drawn the inference that he was familiar with the custom.

Appellants ’ last contention for a reversal of the judgment is that, according to the undisputed evidence, appel-lee failed to exercise ordinary care and caution for her own safety and in failing to do so contributed to her own injury. They call our attention to the following excerpt from the testimony of appellee:

“As I got out, started to get off the street car, I looked to the left to see if there were any cars coming and there was not, and as I stepped down I glanced back to the right and did not see any car, and immediately stepped in front of the street car, going to the other side. * * * That is the last I remember; I walked in front of the street car; I suppose the minute I stepped in .front of the street car the truck hit me; I did not see the truck, and don’t even remember being hit; that is the last I remember. I came to in the hospital, in the room.”

The effect of her statement is that, as she started to step off the car, she looked west, and as she stepped off she looked east to see whether any automobiles were approaching from either direction, and immediately stepped in front and around the car, en route home. We have already stated that the mere act of walking in front of and around a street-car from which one has alighted is not per se negligence, even though in violation of the city traffic laws, meaning, of course, to such an one who otherwise exercised ordinary care and caution for his safety. We cannot say as a matter of law that appellee failed to keep the proper lookout. She looked both ways as she started to and was getting off the car, before she proceeded on her way in accordance with the custom. Under these facts and circumstances it became a question for the jury to say whether she was guilty of contributory negligence.

No error appearing, the judgment is affirmed.

Mr. Justice Kirby dissents.

Mr. Justice Smith concurs in the judgment.


author: Kibby, J.

text:
    Maroney v. State. Bulah v. State Stuart v. State
    (No. 3453).
    (No. 3463).
    Opinion delivered May 21, 1928.

      Clary & Ball, for appellant.

      E. W. Applegate, Attorney Gleneral, and John L. Garter, for appellee.
   Kibby, J.

Henry Maroney prosecutes this appeal from a judgment of conviction for the crime of selling intoxicating liquors, fixing his punishment at one year in the State Penitentiary.

Two errors are assigned for the reversal of the judgment, the first that the court erred in the examination of the jurors on their voir dire, and the admission of the testimony of Lee as a witness.

The record discloses that the court said to the jury:

“Gentlemen of the jury, it may develop, on the trial of this case, that the State will depend in part, to what extent I just now am not advised, on the testimony of a special agent or detective. Now I am going to ask you if you, any of you, are so prejudiced against a man who engages in that course of transactions to the extent that you would fail or refuse to bring into court a conviction upon that testimony, although you might believe that testimony was truel

“If, gentlemen, it should appear that the State could rely upon the testimony of a detective to secure a conviction in this case, if you should believe, from the testimony of the detective and together with all the other facts and circumstances, that the defendant was guilty, and be convinced of that fact beyond a reasonable doubt, would you find him guilty, notwithstanding that you might resent in some way the manner in which the testimony was secured?

“I judge, gentlemen, by your silence, that you would not let yourselves be prejudiced against the testimony because it was given by a detective, to the extent that you would disregard it, if you believe it to be reasonable and true. I am taking it for granted, gentlemen, that, although you might resent in some degree the manner in which the testimony was secured, yet if, from it and all of the other testimony in the case, you should believe beyond a reasonable doubt that the defendant was guilty, you would find him guilty. Now, if there is “any man that could not do that, let me know it, ’ ’

Objections were made, overruled, and exceptions saved to each of these questions and statements.

Appellant insists that this question was. improper, invaded the province of the jury, and precluded them from the exercise of their own judgment in weighing the testimony of the witnesses, and cites the case of Turner v. State, 171 Ark. 1118, 287 S. W. 400, in support of his position.

It is apparent from the questions of the court that it was only the intention in asking them to ascertain whether any of the jurors were so prejudiced against testimony procured or given by a detective that they would disregard it, even though they believed it to be reasonable and true, and sufficient, with all the other testimony in the case, to convince them beyond a reasonable doubt of the guilt of the defendant. The jury would have no right, of course, to disregard the testimony of any witness if they believed it to be reasonable and true, and the court assumed, from the silence of the jurors .questioned, that they would not arbitrarily disregard such testimony, and held them to be qualified jurors.

This was not an invasion by the court of the peculiar province of the jury to determine the weight and effect to be given the evidence of any witness, nor a usurpation of that function. A large measure of jurisdictional discretion must be allowed the trial court in passing upon the qualification of jurors and ascertaining the state of mind of the jurors under examination affecting their competency. Jackson v. State, 103 Ark. 21, 145 S. W. 559; Maclin v. State, 44 Ark. 115. None of the jurors, in fact, answered the question propounded by the court, nor were any of them excused by the court as incompetent, and this assignment of error cannot be sustained.

The error complained of in the admission of the testimony, over appellant’s objection, of the sheriff* John C. Lee, relative to the whereabouts of witness Harper, cannot be considered, not having been assigned in the motion for a new trial. Poe v. State, 168 Ark. 167, 269 S. W. 355; Owens v. State, 169 Ark. 1118, 278 S. W. 3; Nordin v. State, 143 Ark. 364, 220 S. W. 473.

The judgment is accordingly affirmed.

In 3463, an appeal by 0. G-. Stuart from a conviction for the sale of intoxicating liquors, the errors assigned are the same as in the Maroney case, which is decisive herein. The error as to the admission of the testimony of Sheriff Lee relative to having received a telegram from Jonesville, La., from witness Harper, stating that he had had a fall and would not be able to attend the trial, in which he had 'been recognized to appear, was properly assigned in the motion for a new trial herein.

There was no attempt on the part of the sheriff to relate any statement of the absent witness relative to his knowledge or testimony about the transaction, and certainly no prejudice could have resulted from the sheriff’s statement that he had received a telegram from him, showing he was out of the jurisdiction and unable to attend the trial, and the judgment is affirmed.

In 3453, an appeal by Ed Bu'lah from a judgment of conviction for the sale of intoxicating liquors, only two assignments of error are insisted upon for reversal, the one relative to the questioning of the jurors on voir dire as to whether they would arbitrarily disregard the testimony of a detective in the case, having been passed upon adversely to the appellant’s contention in the Maroney case, supra, is controlling herein.

The other assignment being that the court erred in allowing the introduction of incompetent testimony in permitting Glover, a justice of the peace, to testify from memorj'- and without his' docket that Ed Bulah had been convicted in his court on the 17th day of May, 1926, upon a plea of guilty for transporting alcoholic liquors, and Ted Grates, a deputy sheriff, to testify that • he had arrested the defendant transporting a quantity of liquor at that time.

The record discloses that, in overruling the objection to the testimony of witness Glover, the court admonished the jury that it should receive with caution his testimony, and not receive it as tending- to show whether or not the defendant is guilty of the specific charge of selling liquor for which he was being tried; that the only reason and purpose for which the evidence could be admitted was. to show the course of conduct of defendant. No error was committed in the admission of this testimony, under the admonition of the court to the jury limiting its consideration to the particular purpose, and specially cautioning the jury that it .could not be considered as tending to show the guilt of the defendant upon the charge upon which he was being tried. See Taylor v. State, 169 Ark. 589, 276 S. W. 577; Mobley v. State, 135 Ark. 475, 205 S. W. 827; Noyes v. State, 161 Ark. 340, 256 S. W. 63; Tong v. State, 169 Ark. 706, 276 S. W. 1004.

The same direction was given to the jury about the consideration of the testimony of the deputy sheriff relative to the apprehension of the defendant for transporting liquor, for which he pleaded guilty in the justice court, as was given for the consideration of the testimony of witness Glover, who testified about said conviction, and no error was committed in the introduction of said testimony,'since the court expressly limited the jury to its consideration for the particular purpose, and admonished it that it could not consider it for any other purpose

There being no prejudicial error in the record, the judgment is affirmed.


author: Kirby, J.,

text:
    Arkansas General Utilities Company v. Culbreath.
    Opinion delivered May 21, 1928.

      Wooldridge & Woolridge and Dcmaher & Danaher, for appellant.

      D. A. Bradham, FrmBt Pace and Tom W. Campbell, for appellee.
   Kirby, J.,

(after stating the facts). It is first urgently insisted that the court erred in giving appellee’s requested instruction No. 1, which, it is claimed, entirely ignores the alleged defense of contributory negligence, and concludes Iby telling the jury the verdict should be for the plaintiff. The appellant objected to the giving of the instruction, and requested the court to modify it, which it refused to do, by adding, “unless you further find from the evidence that the plaintiff himself was guilty of contributory negligence which caused or contributed to the injury of which he complains.”

It is true this court has held an instruction should be complete in itself when it undertakes to tell the jury when, the verdict should be rendered for the plaintiff, and that the trial court should not instruct the jury that it must find for the plaintiff or defendant, as the case may be, upon a partial or incomplete statement of the law applicable to the material facts of the case, and that an instruction is inherently erroneous and therefore prejudicial which leaves out of consideration the plaintiff’s contributory negligence or assumption of risk, or leaves to the jury the determination of the defendant’s conduct as the sole issue for the jury’s verdict, concluding with the phrase, “You will find for the plaintiff, or your verdict should be for the plaintiff,” because, under the evidence, the conduct of the plaintiff as well as that of the defendant is essential to a proper verdict. Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676.

There is no question but' that appellant did object to the giving of this instruction and ask the modification thereof, already set out, and that, if the objection was well taken, it would have constituted reversible error, but we do not find the instruction open to the objection urged, since it expressly told the jury it must find “and that plaintiff at the time was in the exercise of ordinary care for his own safety,” etc., before they could render a verdict for him. If the appellee was in the exercise of ordinary care for his own safety at the time the injury occurred, he could no.t, of course, have been guilty of contributory negligence, which only means the failure to exercise, such care in the circumstances of the case.

Neither do we find that the court erred in modifying the second instruction requested (by appellant by striking out the word “sole” in the connection, “and that such negligence of the defendant was the sole cause of plaintiff’s injuries.” 'The instruction as given told the jury that the basis or ground of plaintiff’s suit was negligence, which could not be presumed from the fact that plaintiff fell into the hole dug by the defendant on Railroad Avenue, and was thereby injured, “but such alleged negligence on the part of the defendant must be shown by a preponderance of the evidence, and that such negligence of the defendant was the cause of plaintiff’s injuries.” The law does not require that the negligence complained of shall be the sole cause of the injury to entitle a recovery therefor by the injured party.

•In Bennett v. Bell, 176 Ark. 690, 3 S. W. (2d) 996, the court said: “It is well settled that negligence, in order to render a person liable, need not be the sole cause of the injury, and that one is liable if his negligence concurred with an inanimate cause, producing it. The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause, nor the last or nearest one.” -See also Helena Gas Go. v. Rogers, 104 Ark. 59, 147 ,S. W. 473; Cahill v. Bradford, 172 Ark. 69, 287 'S. W. 595; Coleman v. 'Gulf Refining Co., 172 Ark. 428, 289 8. W. 2.

. No error was committed in the refusal to give appellant’s requested instruction No. 9,- telling the jury that, after it had dug the hole, it was only bound to the exercise of ordinary care to keep it covered and guarded for the protection. and safety of those who might be traveling along the said walk or highway, and that if the jury found, in the maintenance of said hole, it exercised such care, it could not be held liable for the plaintiff’s injury, since this utterly disregarded any negligence of said company in the digging of the hole in the path or walkway across the traveled street. Then, too, the court told the jury, in appellant’s requested instruction No. 1, and appellee’s instructions 3, 10 and 11, that the appellant was only bound to the exercise of ordinary care in the construction and maintenance of its line and the making of holes for the placing of new poles, and the protection of the public against danger of injury therefrom.

The objection to the modification of instruction No. 10 by striking out the word “guarded” in the connection, “maintained a reasonable inspection of said hole to see that it was properly covered or guarded,” and inserting the words “or otherwise properly safeguarded,” could not have been prejudicial in any event, since it appears to have been more favorable to the position of the defendant as given than in the form.in which it was presented, the jury 'being allowed to find that its- duty was discharged if the hole was covered, guarded, we'll lighted, or inclosed. It is not susceptible to the construction urged by appellant, that the jury would have understood from the words of the amendment that appellant was bound to make the place safe for the users of the highway.

The court having properly instructed the jury relative to the measure of damages in its instruction No. 3, no error was committed in refusing to give appellant’s requested instruction No. 12, which limited the recovery of appellee to “such an amount as you believe from the testimony will compensate him for the actual injury, if any, sustained by him, as a result of falling into the hole,” etc. The instruction given, after properly telling the jury what elements should be considered in awarding damages, expressly told them that if they should find, after careful consideration of the evidence, appellee was entitled to damages, “you should award him such an amount of damages as will fully compensate him for the injury sustained by him, if any, ’ ’ etc.

Neither do we think the amount of damages excessive. Appellee was an able-bodied man, 51 years of age, in good health, and earning about $1,500' a year at the time of the injury, which the jury might have found totally incapacitated him from doing manual labor, and he had suffered much pain from the injury, which physicians thought would continue to he painful indefinitely. . .

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


author: Mehafey, J.

text:
    National Stock Yards National Bank v. Williamson.
    Opinion delivered May 21, 1928.

      J. T. Goston, for appellant.

      H. 0. Williamson, for appellee.
   Mehafey, J.

The appellee, H. C¿ Williamson, owned some land in Mississippi 'County, which he had rented to a negro by the name of Jones. In order to enable Jones to farm the land, Williamson waived his landlord’s lien in favor of the Bank of Commerce of Earle, Arkansas, to the extent of $660, and Jones gave his note to the hank for this amount, secured by a mortgage on his crop and also certain personal property, consisting of mules, wagons, implements, etc. The note was dated April 5, 19-24, and was due and payable to the Bank of Commerce, Earle, Arkansas, November 1, 1924. The Bank of Commerce transferred this note to the appellant as collateral security for money -borrowed from appellant, and appellant held this note at the time the Bank of Commerce failed, which was a few days after it received the cheek for Jones’ cotton.

The cotton upon -which the bank had a mortgage was sold in Memphis by the Hanley Cotton Company. A check was made payable to the Bank of Commerce, and was handed to Williamson to take to the Bank of -Commerce. Williamson had suggested to the negro, Jones, to let Hanley Cotton Company sell his cotton. The negro told him that he had spoken to the bank about it, and the bank told him it was up to him. Williamson said that was true, but he thought that the Hanley Cotton Company would get about as much for his cotton as anybody else, and would sell it a little quicker. Hanley was unable to finance himself in the cotton business, in which he was engaged, and he applied to Williamson to assist him, and Williamson indorsed for him at the bank and agreed to assist him in securing money to operate his business for 25 per cent, of the profits.

The chancellor entered a decree against Jones for the amount of Jones’ indebtedness to the bank, with interest, and found in favor of Williamson.

It is earnestly insisted that Williamson and Hanley were partners. It is true that Williamson was to receive 25 per cent, of the profits, and receiving a per cent, of the profits is always evidence proper to be submitted on tlie question of whether a partnership exists.

This court has many times decided that a share of the profits alone does not constitute one a partner. And the undisputed proof in this case shows that, while Williamson was to receive 25 per cent, of the profits, he was not to share in the expenses or losses, and had nothing whatever to do with the conducting* of the business. If Hanley had lost money, and if his expenses had exceeded his income from the business, Williamson would not have been liable for any portion of the losses. He might have had to pay the bank the notes that he indorsed there, but he would not have had to pay any of the expenses or losses of the partnership. Rector v. Robins, 74 Ark. 437, 86 S. W. 667; Buford v. Lewis, 87 Ark. 412, 112 S. W. 963; LaCotts v. Pike, 91 Ark. 26, 120 S. W. 144, 134 A. S. R. 48; Drilly v. Armstrong, 94 Ark, 505, 127 S. W. 725.

There are numerous other authorities, but it is unnecessary to call attention to them. This court has repeatedly held that a share of the profits alone does not constitute a partnership.

It is true that Williamson was interested in getting his rent out of the cotton, but the Bank of Commerce had to be paid before he was entitled to his rent, because he had waived his lien in favor of the Bank of Commerce for the express purpose of enabling Jones, the tenant, to get money from the bank, but he was not interested with Hanley as a partner and was not interested in the cotton any further than any landlord would be interested in collecting his rent.

As we view the case, it is wholly immaterial whether Jones and Williamson had a right to pay the note to the Bank of Commerce or not, under the circumstances. Hanley sold the cotton. Williamson was in no Way interested in making* the sale or handling* the cotton, either as an agent or as. a partner. In fact, the bank had told the negro that he, the negro, had the right to sell the cotton, and he did ship it to Memphis through the Bank of Commerce for the purpose of selling it, and Williamson asked him to get Hanley to sell it, which he did. When the sale had been made the check was made, not to Williamson, but to the Bank of 'Commerce, who had shipped the cotton for the negro. And Williamson merely carried the check and sales accounts in an envelope to the Bank of Commerce. Williamson did not know, at least there is no evidence that he knew, that the plaintiff held the note and mortgage, and, whether he had known it or not, the check-was payable to the Bank of Commerce, not to Williamson, and he merely acted as any other agent would in carrying the check from Hanley to the Bank of Commerce. Any person might have done this, and this would create no liability. As a matter of fact-, he had delivered the check to the Bank of Commerce and then told the cashier of the Bank of Commerce that, when they had applied a sufficient amount of the check to Jones’ debt to pay it, to give him, Williamson, credit on his rent for the balance, whatever that was.

Appellant argues that it was the duty of Jones and Williamson, before delivering the cotton or its proceeds to the Bank of Commerce, to demand the surrender of the note, and that they had no right to deliver the cotton or its proceeds to the Bank of Commerce without the surrender of the note. In the first place, Williamson had nothing to do with delivering the cotton to the Bank of Commerce. Jones did this, and Williamson could not have prevented it if he had wished to do so. He had waived all the right he had in favor of the Bank of Commerce. He had absolutely no interest in the cotton until Jones’ debt was paid, because he had waived any interest in favor of the bank.

The learned counsel for appellant has called attention to many authorities, and the propositions of law are therein correctly stated, but we have reached the conclusion that they have no application to the facts in this case.

It is contended that the burden of proof was oh Williamson to prove that the Bank of Commerce had actual authority to collect the Jones note, or had possession of the note. Williamson did not pay or undertake to pay the note of the Bank of Commerce. What he did was to deliver a check given to him in Memphis, in which he had no interest and no right to collect and no right to appropriate to his use or to withhold same from the payee of said check. He delivered it as it was his duty to do, and then requested the bank to credit to his rent account whatever was left after the payment of the note. He was then informed that the note was not in possession of the bank, hut that the hank would write and get it. We know of no way that Williamson could have repossessed himself of the check if he had desired to do so, and, if he had retained possession, he would have done so without right, and could have been compelled to deliver it up to the 'Bank of 'Commerce.

It. is insisted that Williamson destroyed plaintiff’s lien. He simply took the warehouse receipts to Memphis after the cotton had already been shipped there by the bank, and told Hanley about the cotton. Hanley sold it then, Williamson having nothing whatever to do with it, and after Hanley sold it he gave the check to Williamson to take back to the Bank of Commerce.

It is insisted that Williamson is liable because he gave advice resulting in the destruction of the lien. We think counsel for appellant are mistaken in this claim. Jones was told by the bank, the holder of the note and mortgage, that he, Jones, had a right to sell it. He shipped it to Memphis without any advice from Williamson. He shipped it there for the purpose of selling it, and intended to sell it, and would have sold it if he had never seen Williamson. The only thing Williamson did in connection with the sale was that he suggested that Jones have Hanley sell it for him, which the negro did. Whatever advice he gave in this connection had nothing to do with destroying the lien of the appellant. Certainly, when he came hack to the bank with the check and delivered it to the bank, he was not advising or assisting in destroying, the lien. He did not, according to the proof in this case, aid either the1 negro or the Bank of Commerce to destroy plaintiff’s lien. The negro did not know that the appellant held his note, and Williamson did not know it. The appellant had never notified either. Moreover, there is evidence that the Bank of Commerce was in the habit of collecting notes of this kind for the appellant with its knowledge and consent; that it did collect and then remit the proceeds to appellant, and that no objection was ever made to this. This custom, however, was not known to Williamson or to the negro. Neither of them knew that the appellant had the note. The undisputed testimony shows that Williamson, after he gave the cheek to the Bank of Commerce, thought that the Bank of Commerce had the note. It would have been his duty to deliver the check to it whether he did or not, but he certainly did nothing to assist in destroying the lien.

The finding of facts by the chancellor is sustained by a preponderance of the evidence, and the decree is correct, and is therefore affirmed.


author: Mehakfy, J.

text:
    Butt v. Walker.
    Opinion delivered May 21, 1928.

      A. F. Auer, for appellant.
   Mehakfy, J.

Appellant obtained a judgment in the justice court of Howard County and filed same in the office of the circuit clerk of said county, and subsequently filed a transcript with the circuit clerk of Hempstead County and had execution issued and directed to the sheriff of Hempstead ‘County, and the sheriff levied on the lands occupied by the appellee.

Appellee gave notice, and filed his claim of exemption with the circuit clerk of Hempstead County, claiming the land levied on as his homestead and exempt from execution. The clerk sustained the claim, and issued supersedeas, and appeal was taken to the circuit court, and on the trial in the circuit court appellee’s claim of exemption was sustained, and from that judgment an appeal was taken to this court.

The appellee had lived on the land about 23 years. His wife had died, and he continued to live on the land, and finally married a second wife, from whom he obtained a divorce on the 12th day of November, 1926. On the 8th day of November, 1926, the transcript of the judgment was filed with the circuit clerk of Hempstead County. After appellee obtained his divorce in November, 1926, he married again, and is still living on the land in question.

It is the contention of the appellant that, upon the filing of the transcript with the circuit clerk in Hemp-stead County on the 8th day of November, 1926, said judgment became a lien on the land immediately upon the granting of the divorce on the 12th day of November. That the lien attached as soon as appellee was divorced, and it is contended that the homestead exemption is not for the benefit of the husband alone, but to enable him to care for his family or those dependent on him for support, and that, when he is no longer under obligation to support any one, he has no homestead exemption.

Appellant calls attention to a number of cases, but most of the authorities referred to by appellant are unlike the instant case.

The undisputed proof is that the appellee has lived on the place that he claims as his homestead for 23 years; that his wife died, and he afterwards remarried, was .divorced from the second wife, and then married again, but during all tliis time be lived on the place claimed as exempt, and occupied it as a homestead. ■ No one can acquire a homestead unless he is at the time a married man or the head of a family.. But if,- while a married man or head of a family, he acquires a homestead, he does not lose his right to claim it as exempt because his wife dies or because he is divorced, even though he may have no family living with him.

“ While the husband may retain his homestead under the statute of this .State, after having acquired it as the head of a family, though his wife may have obtained a divorce against him and he literally have no family left him, he has been allowed to retain his homestead'but he could not now declare upon an original homestead, as he is not the head of a family.” Waples on Homestead and Exemption, 74.

The authorities are not in harmony on the question involved. There are authorities to sustain the position taken by appellant, but this court has announced the rule which prevails in this State, and, the question having been decided by this court, it is unnecessary to cite or discuss decisions of other States.

This court has said:

“On the next point, as to whether the land seized and sold under the execution was the homestead of the defendant, the chancellor found that Thomas was, for a period of about ten years, the head of a family, and resided upon the land in question, of which he was the owner, and that he has continued to reside upon this land, and still resides upon it and claims it as a homestead. The chancellor thereupon held that the land was his homestead, and exempt from execution. On this question we feel that there is more room for doubt, but, after consideration of the evidence, we think it is sufficient to uphold the finding that Thomas, after the death of his father, owned aild lived upon this 110 acres of land, that his mother and a single sister lived with him, that he supported them, and was the head of the family. This being so, it follows that be was entitled, as the head of a family, to claim this land as a homestead. Afterwards, in the course of time, his mother and sister died, and he has now no family. But, though a man cannot acquire a homestead right without a family, yet, when the homestead estate is once acquired, he is not, under the law as construed by the decisions in this iState, deprived of it by the loss of his family. When the association of persons which constitutes the family is broken up, whether by separation or the death of some of the members, the right of homestead continues in the former head of the family, provided he still resides at his old home. ’ ’ Baldwin v. Thomas, 71 Ark. 206, 72 S. W. 53.

In the instant case the appellee acquired this land while he was the head of a family, occupied it as u homestead, and he was not deprived of it by the 'loss of his family. It is true he could not have acquired a homestead if he had not been the head of a family, but, having acquired it and occupied it while he was the head of a family, the fact that his wife died or that a divorce was granted would not deprive him of the right to claim his homestead as exempt if he still resided on it, as the appellee does-in this case.

We think the case above referred to, of Baldwin v. Thomas, is decisive of this case. The judgment is therefore affirmed.


author: Mehafpy, J.

text:
    Adams v. Adams.
    Opinion delivered May 21, 1928.

      Ward é Ward, for appellant.

      Holifield & TJpton, for appellee.
   Mehafpy, J.

Appellant and appellee were married in Greene Connty, Arkansas, in July, 1920. This suit for divorce was brought by appellee in the Clay Chancery Court in October, 1936. The parties at the time lived in Clay County.

Appellee alleged, as cause for divorce, indignities and adultery. The evidence is quite lengthy, and it is unnecessary to set it out in full. It is sufficient to say that there was evidence introduced tending to establish the charges in the complaint, and also evidence on the part of the appellant tending to show misconduct on the part of the appellee. Attention will be called to such parts of the evidence as necessary in the opinion.

There was a decree for appellee, and appellant prosecutes this appeal to reverse said decree.

Appellant insists, first, that the court erred in failing to sustain a demurrer to the amended complaint. The abstract does not show that the demurrer was ever presented to the court or that there was any ruling by the court on the demurrer. Appellant’s objection apparently is that there are two causes of action, and they were not properly stated in separate paragraphs. The complaint, however, was sufficient on demurrer anyway. It stated a cause of action, and, that being true, the demurrer should have been overruled. It appears that the court did sustain a demurrer to thé original complaint, and required the plaintiff to amend so as to show that the parties were separated.

Appellant next insists that the court should .have required appellee to elect on which ground of action he relied, that of indignities or adultery. The appellee had a right to state as many causes of divorce as he had in one complaint, and he was not required to elect, but could take proof on all, and if he proved either ground he would be entitled to a decree, unless the appellant showed that he was disentitléd because of his own conduct. At any rate, there was no necessity for him to elect which cause he relied on.

Appellant’s third contention is that the court erred in not striking the depositions offered by plaintiff, because he states they were taken before the suit was begun. Under our statute the suit was begun when a complaint was filed and a summons issued, and the only defect in the complaint which caused the court to sustain a demurrer was that the original complaint did not state that • the parties were separated. Although the complaint did not state that, the depositions were taken by agreement, and on this issue were taken without objection, and the complaint would have been considered as amended to conform to the proof anyway.

The sustaining of the demurrer, of course, entitled the appellee to amend his complaint, which he did, but he did not amend it by stating another cause of action or a new cause of action. The only defect that the court required corrected was that the complaint did not state that the parties were separated. The causes stated in the original complaint, so far as the record shows, were the same as those stated in the amended complaint. There was no difference in the statement of the canse of action for divorce. The evidence therefore, taken by agreement of parties, was proper to be considered by the court, and there was no error in the court’s refusal to strike the depositions.

It is next insisted that the court erred in its failure to grant the exception of the defendant to certain testimony offered by the plaintiff. The abstract does not show that this exception on the part of the appellant was passed upon by the court.

“But chancery cases are tried upon appeal ele novo. It is presumed that the chancellor heard the case only upon evidence that was competent and relevant to the issues made. Upon appeal in chancery cases, errors which relate to rulings upon the introduction of evidence will not be passed upon; but, in the trial of such chancery cases upon appeal, any evidence that was improperly excluded below will be considered, and evidence that was improperly received will be disregarded, and the case will be decided here solely upon competent evidence.” Greer v. Davis, ante, p. 55; Cox v. Smith, 99 Ark. 218, 138 S. W. 978; Niagara Fire Ins. Co. v. Boon, 76 Ark. 153, 88 S. W. 915; Latham v. First National Bank of Ft. Smith, 92 Ark. 315, 122 S. W. 992.

Since the case is tried here de novo, all evidence that is competent will be considered, and this court will disregard any evidence that was improperly received. Therefore a ruling as to whether the testimony is competent or incompetent is unnecessary.

Appellant also contends that the decree should be reversed because the evidence was legally insufficient to sustain the finding of the court in granting a divorce.

We think there is ample evidence to justify the chancellor in granting a decree of divorce on the grounds stated in the statute as follows: 4 4 offer such indignities to the person of the other as shall render his or her condition intolerable.” And, if that is true, it would be wholly immaterial whether there was sufficient evidence to sustain the other charge or not. There is abundant evidence that appellant’s conduct with Guy Buey was such as to cause gossip in the community; to cause the church to which she belonged to appoint a committee to investigate her conduct; and to amount to such indignities to the person of the appellee as to render his condition intolerable. There is testimony to the effect that appellant admitted that her conduct was improper, and it is shown that, after she had been remonstrated with, she continued to meet and talk with Buoy just as she had before, notwithstanding she knew of the gossip; had been remonstrated with by her husband; the wife of Buey had talked to her and asked her to leave her husband alone; the elders of the church to which she belonged investigated the matter, and, while they did not find any evidence of the truth of the charg-e of adultery, they did testify that they did not think she took the charges as seriously as she should, and moreover, they were not investigating the question of indignities offered to the husband especially, but the other charges.

The facts were found in favor of the appellee by the chancellor, and a finding of fact by the chancellor will not be disturbed by this court unless such finding is against the preponderance of the evidence. We have reached the conclusion in this case that the finding of the chancellor was supported by the evidence, and the decree is therefore affirmed.


author: McHaNey, J.

text:
    Martin v. State.
    Opinion delivered May 21, 1928.

      Clary & Ball, for appellant.

      II. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   McHaNey, J.

Appellant was indicted, tried and convicted for manufacturing alcoholic 'liquor, and sentenced to one year in the penitentiary. He specifies one error of the court on which he relies for a reversal of this case, relating to the admission of certain testimony of Sheriff John C. Lee, wherein the witness Lee was permitted to testify, over appellant’s objection, to a certain conversation he had at the still with one Tom Copeland, to the effect that 20 of the 26 (barrels of the. mash found at the still was appellant’s mash, and that he had run two barrels of appellant’s mash that morning. This testimony was objected to on the ground that the witness did not say positively that appellant heard the conversation. But the witness did testify positively that appellant was present, and that he could have heard the conversation.

The court refused to permit the sheriff to testify to another conversation with Tom Copeland, which was had to one side, and which appellant did not hear, but he permitted the witness to testify to that part of the conversation where appellant was present, and either did hear or could have heard it.

Tom Copeland and appellant were accomplices in the commission of crime, and it is a general rule that the statements of one accomplice made in the presence and hearing of another, which are not contradicted by him, are admissible in evidence against him as ah admission on his part for his failure to contradict them. Polk v. State, 45 Ark. 165; Ford v. State, 34 Ark. 654.

In Polk v. State, supra, this court said:

“On the trial of both defendants, certain statements, in the nature of confessions, made by Henry Polk, were admitted against objections. Any voluntary statement made by Henry, and tending to show he knew something of the matter, was proper evidence against him. And if made in the presence of .Sylvester, and uncontradicted by him, they are also receivable against him, as a tacit admission inferred from his acquiescence in the verbal statement of another. But such implied admissions are to be received with-great caution, affording, at best, but a weak presumption of .guilt. Ford v. State, 34 Ark. 654; Williams v. State, 42 Ark. 382.”

In Thomas v. State, 161 Ark. 644, 257 S. W. 376, a dying declaration by the deceased, to the effect that the shooting by defendant was not accidental, was held to be admissible; where it was shown to have been made in defendant’s presence and defendant made no response thereto.

In Stroud v. State, 167 Ark. 502, 268 S. W. 850, this court held that the acts and declarations of a conspirator, done or made after the accomplishment of the enterprise, are not admissible against co-conspirators, unless done or made in their presence.

Here the sheriff testified to that part of the conversation he had with the witness Copeland, which was made in the presence and hearing of appellant, and it was therefore admissible. Appellant did not deny that such conversation was had* between the sheriff and his co-conspirator or accomplice, Tom Copeland, and did not deny that he heard same. Moreover, the witness, Tom Copeland, testified as follows;

“Q. Did yon point out anything there? A. Yes sir; I showed Mr. Lee which were my barrels and which were Mr. Martin’s. Q. How many were yours? A. Six. Q. How many were Mr. Martin’s? A. Twenty-were Mr. Martin’s. By the court: Where was Martin when you pointed to Mr. Lee the six that were yours, and the twenty that were Mr. Martin’s? -A. He was. standing there. ’ ’

Therefore, even though it might 'be said that the testimony was inadmissible, still it would not be prejudicial, as the witness Copeland testified to substantially the same thing, without objection from appellant.

Judgment affirmed.


author: McHaney, J.

text:
    Fox v. Pinson.
    Opinion delivered May 21, 1928.

      Coulter & Coulter, for appellant.

      Marsh, McKay & Marlin, for appellee.
   McHaney, J.

This is the second appeal of this case. The opinion on the former appeal may be found in Fox v. Pinson, 172 Ark. 449, 289 S. W. 329. On that appeal the case was reversed on the ground, first, that a decree of foreclosure ordering a sale of eighty feet, on which 'the hotel stood, to satisfy a mortgage which covered only seventy-five feet thereof, was erroneous; second, that one who conveys land by warranty deed against incumbrances cannot foreclose his mortgage for the purchase money before paying off and clearing the record of incum-brances ; and third, that, in the absence of an accelerating clause in the mortgage or the purchase money notes which it secures, -the mortgagor cannot enforce his lien for the whole indebtedness, but for only such part as may be in default at the time.

During the pendency of the former appeal "W. J. Pinson, who was the appellee in that case, died, and George W. Jones, who was the purchaser at the void foreclosure sale, one of the appellees on this appeal, took possession of the property under such sale. The other appellees are the widow and surviving heirs at law of W. J. Pinson. Upon a remand of the former cause, the court appointed John H. Pinson administrator for the purposes of this suit.

Thereafter, appellant filed her cross-complaint in this action, calling on the administrator and survivors of W. J. Pinson to defend her title under the warranty deed of W. J. Pinson against those who were claiming title to the property prior and paramount to hers. She further alleged that the appellees had unlawfully deprived her of the possession of the property involved in this suit from the 6th day of January, 1925, to the 17th day of January, 1927; that the fair rental value of said property for such time was $600 per month, and that, by reason of being unlawfully deprived of the possession thereof, she had been damaged in the sum of $14,640; that, in addition to the rental value, they unlawfully and wrongfully converted to their own use furniture, furnishings and fixtures located in the building on said premises, of the value of $20,000; that during said period of time, and while appellees were unlawfully in possession of said property, they destroyed the building located thereon, of the value of $40,000. 'She claimed the total damage of $74,640, which she admitted should he reduced by the sum of $11,500, being twenty-three promissory notes in the sum of $500 each, which were due at that time, and prayed judgment for the balance. To this cross-complaint appellees filed separate demurrers, which the court sustained, and, on appellant’s declining to plead further, her cross-complaint was dismissed for want of equity.

"While it is true that, since the remand of this case, appellees have not sought or obtained a decree of foreclosure in accordance with the opinion of this court rendered on the former appeal, still we are of the opinion that the cross-complaint stated a cause of action, and that the court erred in sustaining the demurrer. We are furthermore of the opinion that the decree of the court sustaining the demurrers and dismissing the cross-complaint of appellant for want of equity was such a final order as is appealable. The order dismissing the cross-complaint was a final disposition of her right of action against appellees, and one from which an appeal may he prosecuted. In Temple Cotton Oil Co. v. Davis, 167 Ark. 448, 268 S. W. 38, this court said: “As has been said, the court sustained demurrers to the original amended complaint. This action did not constitute a final order from which an appeal could have been prosecuted, as plaintiff did not stand on the sufficiency of the complaint. Had it done so, the court would no doubt have dismissed the complaint, from which action an appeal could have been prosecuted. ’ ’

In the recent case of Flanagan v. Drainage District No. 17, 176 Ark. 31, 2 S. W. (2d.) 70, this court discussed very thoroughly the question as to what constitutes a final decree, and there collected many authorities relating to the subject. The gist of all of them is that a judgment or decree is final which dismisses the party from the court, discharges him from the action, or concludes his rights to the subject-matter in the controversy. This is exactly what the decree in this case did, so far as appellant’s cross-complaint is concerned. 'She does not deny the alleged indebtedness existing by reason of the mortgage and purchase money notes, and we see no reason why her right to recover damages for the unlawful possession, use and destruction, or conversion, of her property could not be litigated in this action. We do not decide whether any damage has been sustained by appellant, nor who is liable therefor, if any one. We merely hold that the cross-complaint states a cause of action, and that a decree sustaining the demurrer and dismissing the complaint for want of equity is a final decree from which an appeal may be prosecuted.

The decree will therefore be reversed, and the cause remanded, with directions to overrule the demurrers to the cross-complaint and for further proceedings according to the principles of equity and not inconsistent with this opinion.


author: Hart, C. J.,

text:
    Clark v. Deupree.
    Opinion delivered May 28, 1928.

      G. G. Pope and Will Steel, for appellant.

      Frcmk S. Quinn, for appellee.
   Hart, C. J.,

(after stating the facts). It will be observed from onr. statement of facts that the testimony relative to the first contract between the parties is in direct and irreconcilable conflict. On the part of the plaintiffs it is shown that Mrs. Denpree had agreed to sell them the land for the price of $3,'250, and that they had paid down in cash $200 of the purchase price, and were ready to pay the balance when Mrs. Denpree should pay some back taxes, amounting to $831, as she had agreed to do under her contract. On the other hand, according to the evidence for the defendants, Mrs. Deupree had sold her interest in the land for the net price of $2,500, and Mrs. Deupree had executed a deed to the plaintiffs for her interest in the land, with that sum as a consideration, which plaintiffs refused to accept. It was understood at the time that Quinn, as her attorney, had also an interest in the land, which was not considered in the purchase of Mrs. Deupree’s interest, and for which he was to receive $1,000.

The conclusion we have reached renders it unnecessary to pass upon these disputed questions of fact.

According to the testimony of Frank S. Quinn, which is uncontradicted, he was not the agent of Mrs. Deupree for the sale of the land. He had merely been her attorney in former litigation regarding the land, and only assured the plaintiffs that. she would ratify any contract he would make with them relative to the sale of the land. .Hence, assuming that he did enter into the contract as claimed, or as testified to by the plaintiffs, Mrs. Deupree refused to execute such a contract, when informed of its terms. The mere fact that Quinn had been attorney for Mrs. Deupree in former litigation relative to the land did not make him her agent to sell the land; and, as we have already seen, according to his testimony, which is not contradicted on this point, he did not attempt to sell the land as agent for Mrs. Deupree. Therefore conceding, without deciding, that the first contract was as testified to by the plaintiffs, such contract was not binding upon Mrs. Deupree, and was never ratified by her.

The plaintiffs testified that, as a matter of compromise, they had agreed to give $3,500 for the land. After the court had made its finding against them, they made a tender of $3,300 to the defendants, which, with the $200 already paid, would amount to $3,500. The court held that this tender came too late, and we think it was right in so holding. The plaintiffs had refused all the way through to pay $3,500 for the land, and in the meantime the defendants had entered into a binding contract with other parties to sell the land to them..

It follows that the decree of the chancery court was correct, and it will therefore be affirmed.


author: Hast, C. J.,

text:
    Blankenship v. Modglin.
    Opinion delivered May 28, 1928.

      O. H. Hurst and Caraway, Balcer & Gautney, far appellant.

      Dudley & Dudley, for appellee.
   Hast, C. J.,

(after stating the facts). Counsel for Modglin seek to uphold the judgment on the ground that the mortgage was too indefinite in the description of the corn. It will foe observed from our statement of facts that the corn is described as all the crop of corn to be grown by Harris on the farm belonging to Earl Keich. We do not think this description is void for uncertainty. This court has laid down the rule that a mortgage of personal property is sufficient as to description if it foe such that a disinterested person, aided only by such inquiry as the instrument itself suggests, is able to identify the property. Johnson v. Grissard, 51 Ark. 410, 11 S. W. 585, 3 L. R. A. 795. Now, any disinterested person would find out from the mortgage itself that it was given by Harris to Blankenship to secure a promissory note and for merchandise supplies to be furnished foy Blankenship to Harris to make a crop during the year 1926 on a farm belonging to Earl Keich. It is claimed that this description is indefinite because' Earl Keich had several farms in Craighead County, where the mortgage was executed and filed. Any disinterested person, however, could-have found out, by reading over the mortgage, aided by inquiry, that Harris lived on one of the farms of Earl Keich, and was going to make a crop of corn and cotton on it. Under these circumstances, we think that the description was sufficiently definite and that Blankenship had a valid mortgage on the corn in controversy.

This brings us to the remaining contention between the parties. According to the testimony of Blankenship, Harris still owed him, under the mortgage, the sum of $189.80, and the corn was not worth more than that sum. On the other hand, there was evidence adduced in favor of Modglin to the effect that Harris had paid off his mortgage indebtedness to Blankenship. The evidence for Modglin also shows that he purchased the corn in good faith from Harris, and, as payment therefor, paid off a note and mortgage which Harris owed Earl Keich. This disputed question of fact was submitted to the jury under proper instructions. Blankenship relied upon his own testimony in the case to show that the mortgage indebtedness was not paid. This court is committed to the rule that the positive testimony of an interested party will not he treated as undisputed. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 A. S. R. 52, 12 Ann. Cas. 243; and Nelson v. Missouri Pacific Rd. Co., 172 Ark. 1053, 292 S. W. 120.

Moreover, there are facts in the record from which the jury might have inferred that the testimony of Blankenship was not reasonable and consistent in itself. His merchandise books were in his store, about eight miles from where the trial in the circuit court was held, and he failed to produce them to show the state of the account of Harris. Blankenship failed to introduce as a witness his bookkeeper, who kept the account of Harris. The note secured by the mortgage was marked paid, and had been delivered to Harris. It is true that Blankenship produced what he calls a renewal note for the balance now claimed to be due, but this note was dated January 23,1927, which was more than four months after the note described in the mortgage was marked paid. Under all these circumstances it cannot be said that the undisputed evidence called for a directed verdict in favor of Blankenship.

It follows that the judgment must be affirmed.