text:
    Dennis v. Dennis.
    Opinion delivered February 27, 1922.
    1. Reformation op instruments — mistake..—Though the name of the plaintiff’s husband did not appear in a contract to convey land to plaintiff, for which she furnished the consideration, yet where, with her knowledge and consent, the deed was executed to her and her husband, equity will not reform the deed so as to convey title to her alone.
    2. Husband and wipe — estate by entirety. — The common-law doctrine of estates by entirety has not been abolished by the married women’s enabling acts.
    3. Husband and wife — estate by entirety. — Though a deed to plaintiff and her husband named other grantees, this did not affect the estate by entirety in the undivided interest conveyed to plaintiff and her husband.
    4. Husband and wipe — estate by entirety — interest of husband. —Where a husband and wife have an estate by entirety in land, the husband has such interest as may be mortgaged.
    Appeal from Pulaski Chancery Court; Jolm E. Marlin eau, Chancellor;
    affirmed.

      Carmichael & Brooks, for appellant.
    Gertrude Dennis and Alicia Watkins were the only parties to the contract. One does not acquire rights under a contract to which he was not a party, simply by signing the contract. Anson on Contracts, p. 273; 127 Am. St. Rep. 77; 119 Fed.. 191; 19 Am. St. Rep. 517. Therefore, the husbands of these parties obtained no rights under the contract to be named as grantees in the deed. In sales of real estate it is absolutely essential that the parties be named. 1.1. L. R. A. 143; Elliott’ on Contracts, vol. 2, sec. 1306, p. 550; Page on Contracts, vol. 2, p. 1022, sec. 698; Underhill on Landlord and Ten-' ant, vol. 1, p. 341; 119 Fed. 191. The deed was not in keeping with the contract, and the name of Griffin Dennis was inserted by mistake.
    The grantees in the deed were tenants in common. A husband and wife cannot take an estate by the entirety. While this question has not been directly decided by this court since the passage of the act of Feb. 11, 1919!, the following cases from other States bear on the question. 84 N. W. 92; 43 Am. St. Rep. 768; 156 Pa. St. 628; 36 Am. St. Rep. 64. See also, 13 R. C. L. sec. 126, p. 1103.
    An estate by the entirety cannot be created without the parties intended to create such estate. Devlin on Deeds, vol. 1, sec. 117. A court of equity may 'correct it where the husband’s name was inserted by mistake in a deed. Sec. 119 Devlin on Deeds.

      Mehaffy, Bonham & Mehaffy and Saye & Satye, for appellee.
    Appellee and Sim Watkins signed the contract as parties of the second part, and also signed the notes called ■ for under the contract. One who signs a contract, though not named in the body thereof as a party, is liable as a party thereto. 123 N.' T. S. 231; 16 Pac. 713; 77 S. E. 353; 177 S. W. 1091. He is presumed to have intended to bind himself. 328 Mass. 335; 2 Denio (N. T. ) 135.
    The recent case in 227 S. W. 1, decided by this court, settles the contention against appellant that an estate by entirety can be created under the present laws of this State. The burden was upon appellant to show that the mistake was mutual, which resulted in the deed conveying to them an estate by entirety. 134 Ark. 152; 60 Ark. 304; 71 Ark. 614. Such evidence must be clear, unequivocal and decisive. 75 Ark. 72; 79 Ark. 592; 81 Ark. 166.
    Appellant is estopped to deny appellee’s interest in the lands in so far as it affects the intervener’s right, since she has stood by and allowed him to use the property as he saw fit during all these years. 218 S. W. 177; 62 Ark. 26; Desha Bank $ Trust Company v. Doran, 147 Ark. 174.
   McCulloch, C. J.

Appellant instituted this action in the chancery court of Pulaski County, praying for the reformation of a deed conveying a certain tract of land to herself and her husband and other persons. Her bus-band was one of the defendants, and he and his mortgagee, who intervened in the action, are the appellees. ‘The rights of the other parties to the.suit have passed out of the litigation, and the present appeal concerns the respective rights of appellant and her husband, one the appellees, and the latter’s mortgagee.

The deed sought to be reformed is one which was executed to appellant and her1 husband and her sister and the latter’s husband, as grantees. The reformation sought is to strike out the name of appellant’s husband, Griffin Dennis.

The land now in litigation was inherited by appellant from her father, and another part of the land embraced in the deed has passed out of the controversy. Appellant and her sister, Alice Watkins, inherited 80 acres of land from their father, and this is the land in controversy. They purchased another tract of 80 acres in the same quarter-section from one Kay and executed a mortgage on that tract and the inherited tract. The mortgage was foreclosed, and at the sale Mr. IT. S. Turner purchased the land for the price of $4,160. The sale was confirmed, and commissioner’s deed was made to Turner. Turner purchased the land at the request of appellant and her sister, and there was an understanding that he would give them an opportunity to repurchase the land at the sum of $5,000. Immediately upon receipt of the deed Mr. Turner entered into a written contract with appellant and her sister in accordance with his verbal promise to them. The contract was prepared by an attorney, and in the body of the writing only the names of appellant and her sister were mentioned. The two women with -their husbands were present on the occasion, and at the suggestion of. the attorney who prepared the instrument the two husbands joined in it by attaching their signatures. There is a slight conflict in the testimony as to what was said on that .occasion, but the testimony establishes the fact that the husbands signed the contract at the suggestion of the attorney that they should do so for the reason that they were interested and would have control of the property. Subsequently the parties were unable to pay the purchase price, and' they transferred their rights to a kinsman, K. II. Cunningham, to the 80-acre tract purchased from Kay, and Cunningham paid one-half of the price to Turner. The remainder of the payment was made by the two women and their husbands, and upon the payment of the full price .to Mr. Turner he executed and delivered a deed conveying the property to appellant and her husband, naming him as her husband, and to her sister, Alice Watkins, and her husband Sim. Subsequently, Sim Watkins conveyed all of his interest to his wife, Alice. The parties then divided the land among themselves (without deeds) by setting off 80 acres to Cunningham’s estate and dividing the other 80 by giving a 40-acre tract to Alice Watkins and the remaining 40 to appellant and her husband, Griffin Dennis.

The contention of appellees is that the deed of H. S. Turner conveyed to appellant and her husband Griffin an estate by the entireties, and the contention of appellant is that the deed should be reformed for the reason that her husband Griffin was not a party to the purchase from Mr. Turner, and that his name was included in the conveyance 'by mistake.

We have examined the testimony carefully, and we are of the opinion that the finding of the chancellor to the effect that there was no mistake made in the execution of the deed was not against the preponderance of the testimony. The parties present at various conversations testified with respect to what was said and done when the original contract with Mr. Turner was executed, and also when the deed was executed and delivered. While the names of Griffin Dennis and Sim Watkins, the two husbands, did not appear in the body of the original contract, it is clear that they signed their names to the contract in the presence of their ivives, and with the intention of all parties that they should become parties in interest in the contract. The evidence also tends to show that they had control of the property, and that they assisted in making payments of the price, and that when the deed was .executed their names were included with the knowledge and consent of the two women. They accepted the deeds with the knowledge that the conveyanee had included their husbands as grantees. This being true, a court of equity should not grant a reformation.

It is also contended by learned counsel for appellant that under the present statutes of this State completely .emancipating married women from former disabilities of coverture, there is no such thing as the creation of mi estate by the entirety. We have, after careful consideration, decided that question against the contention of counsel, and held that none of the statutes on this subject destroy the common-law doctrine of the creation of estates by entirety. Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7; Parrish v. Parrish, 151 Ark. 161.

The fact that other grantees were named in the deed does not destroy the effect in creating an estate by the entirety so far as concerns the undivided interest conveyed to appellant and her husband. In such a conveyance the husband and wife are regarded as one person and take, not as joint tenants, but as tenants by entirety of the share which they together hold as tenants in common with the other grantees named. 13 R. C. L. 126; Hall v. Stephens, 65 Mo. 670.

The chancery court having properly refused to reform the deed, it follows that there was conveyed to appellant and her husband a joint estate with the fight of survivorship, and that the husband had the power to mortgage his interest therein.

Decree affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Dalton v. Lybarger.
    Opinion delivered February 20, 1922.
    1. Vendor and purchaser — record title — confirmation decree.— As a decree confirming a tax title does not become impervious against attack until three years have expired, under Crawford & Moses’ Dig., § 8370, until that period has expired, such a decree does not have the effect of perfecting a record title.
    2. Vendor and purchaser — record title. — A contract calling for an abstract “showing a good merchantable title” contemplates a record marketable title, and not a marketable title by limitation.

      Appeal from Washington Chancery Court; B. F. McMahan, Chancellor;
    reversed.

      E. B. Wall, for appellant.
    The title tendered by plaintiffs is a title by limitation, whereas, the one called for by the contract was a record marketable title. Appellant was not obligated to accept anything less than the title -contracted for. See 121 Ark. 482 and 120 Ark. 69.

      H. L. Pearson and John Mayes, for appellee.
    By a “clear record title,” it is not meant that there shall be an unbroken chain of conveyances from the Grovernment down to the vendor. 120 Ark. 76. The title tendered by appellee was a good one as held by the chancellor, and his decree should be affirmed.
   Humphreys, J.

Appellant and appellees entered into a written contract for the sale and purchase of certain real estate and personal property. Appellees instituted suit for specific performance of the contract. Appellant answered that all the personal property covered by the contract had not been delivered to him, and that the part which had been delivered to him was in bad condition; and, by way of cross-complaint, asked for damages and for specific performance of the contract. Appellant was awarded $200 as damages, and a specific performance of the contract was decreed, and the decree, following the contract in reference to the character of title contracted for, ordered appellees to convey the lands to appellant by good and sufficient warranty deed and to furnish abstract of title to all of said described lands showing good and merchantable title thereto. The decree was entered February 28, 1920, and no appeal was prayed by either party therefrom. Before the rendition of the decree appellant had taken possession of the lands and personal property and had had an opportunity to inspect the abstracts, which were placed in escrow, but had not done so. Subsequent to the rendition of the decree appellees tendered deeds and an abstract for the lands to appellant, which appellant refused to accept upon the ground that the abstract did not show a perfect record title to the lands. Exceptions were filed to the title, showing record breaks in the chain of title. Appellees attempted to meet the objections and exceptions to the title tendered, by proceedings in the chancery court of Washington County to quiet the title to the lands. They obtained two decrees in suits instituted for that purpose. The first decree was entered by nunc pro tunc order as of the 16th day of August, 1920, and the second on April 19, 1921. The trial court held that the first decree did not cure all the defects in the title, but held that the second decree did cure the defects alleged in the title, and was a full compliance with the requirement in the contract and decree for a specific performance to furnish appellant an abstract showing a good and marketable title to said lands. One of the objections and exceptions of appellant to the last decree, attempting to cure the record defects in the title, was that it was not impervious to attack upon proper showing until three years after its rendition. The court overruled this and other objections and exceptions to the title, holding that the amendment to the abstract, incorporating* the decree quieting title to the lands, rendered the title good and marketable under the terms of the contract for sale and the decree for specific performance, and rendered a decree accordingly, from which is this appeal.

The first question to be determined on this appeal is whether the decree quieting the title, of date April 19, 1921, converted the defective record title into a good record title. The purpose of the decree, of course, was to cure all defects in the chain of title, but the decree itself, under the statute, was not impervious to attack for three years. Crawford & Moses’ Digest, § 8370. Until the -decree itself became effective by limitation, it could not have had the effect of perfecting the record title. In the case of Shelton v. Ratterree, 121 Ark. 482, this court refused to give effect to a decree quieting a title during the priocl that it was not impervious to attack. The decree quieting the title in the instant case did not, therefore, convert the title tendered into a good or merchantable record title.

The next question for determination is the character of title required under the contract. The rule of this court until recently was that a merchantable or marketable title must be a clear record title, and that a title by limitation sufficient to bar the rights of any adverse claimant would not meet the requirements of a contract for a merchantable or marketable title. Mays v. Blair, 120 Ark. 69; Shelton v. Ratterree, supra. This court, however, recently changed the rule announced in Mays v. Blair, supra, and confirmed in Shelton v. Ratterree, supra, so as to embrace within the definition of “marketable,” “merchantable” and “good and indefeasible title” a title by limitation if clearly proved and free from doubt. For example, such a title as can be held without reasonable apprehension of 'being assailed and that can be readily transferred in the market. Hinton v. Martin, 151 Ark. 343. So a vendee contracting for a “marketable,” “merchantable,” or a “good and indefeasible” title will be required to accept a title by limitation as defined above, and cannot, in that event, insist upon a clear record title. In the last-cited case the court recognized the right of one to contract for a record title and demand it. The contract in the instant case as evidenced by the decree for specific performance, from which neither party appealed, was for an ‘ ‘ abstract * * * * showing a good merchantable title.’’

In the case of Hinton v. Martin, supra, this court quoted with approval the language used by the Supreme Court of Missouri in the case of Danzer v. Moerschel, 214 S. W. 849, in construing a contract similar to the one in the instant case, as follows: “The great weight of authority supports the rule that an abstract is an epitome of the record evidence of title; that a contract calling ‘for an abstract showing good title’ calls for record evideuce; that nothing will 'satisfy the condition no matter what the vendor’s real title might he;’ that ‘it is not sufficient that the title is good in fact — that is, capable of being made good by the production of affidavits or other oral testimony; it must be good of record; that in such case title by adverse possession will not suffice.” Applying this rule to the instant case, the contract called for a record marketable title, and not a marketable title by limitation. The court therefore erred in holding that the abstract tendered met the requirements of the contract.

Appellant suggests that, in the event of the reversal of the decree particular instructions should be given concerning the restoration of the status quo of the parties. We see no necessity for doing this. The chancellor did not pass upon this feature of the case, and the evidence is not sufficiently developed in order to restore the parties to their original positions.

The decree is therefore reversed, and the cause remanded under the general direction to restore the status quo of the parties.


author: Wood, J.

text:
    Wolf v. State.
    Opinion delivered February 27, 1922.
    1. ' Criminal law — harmless error — evidence.—In a prosecution for maintaining a nuisance by operating a resort for betting on horse races, testimony of a witness that another witness went with him to the alleged resort and looked in a booth where somebody had taken bets, and said, “He went through the floor,” such testimony, while not competent as part of res gestae, was not prejudicial where the other witness testified to the same effect concerning what he did during the visit to the resort.
    2. Gaming — evidence.—Where defendants were charged with maintaining a gambling resort, testimony tending to prove that they kept accounts in banks under assumed names was competent in determining whether defendants were conducting a legitimate business.

      3. Gaming — evidence.—On a charge for maintaining a resort for betting on horse races, it was competent to prove by the manager of a telegraph office that the tlegraph companies were receiving horse race messages.
    4. Criminal law — harmless error — evidence.—Evidence which had no probative force against the defendants could not have prejudiced them.
    5. Criminal law — instruction.—In a prosecution against two defendants, it was not error to refuse an instruction which might justify the inference that the jury would have to return a verdict finding both defendants guilty or both not guilty.
    6. Criminal law — instruction.—The omission in an instruction to tell the jury that, in considering the circumstances of aggravation or mitigation, they must be guided by the evidence, was not error where, taken in connection with the other instructions, it was manifest that the jury was not authorized to consider any facts or circumstances not shown by the evidence.
    7. Criminal law — instruction—just and pair punishment. — An instruction that the jury should fix a punishment that would be “just and fair” was tantamount to telling the jury that it was not proper to go beyond the evidence to increase or aggravate the punishment.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      A. J. Murphy and Geo. P. Whittington, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and William T. Hammoch, Assistants, for appellee.
   Wood, J.

On the 17th of November, 1921, appellants were tried and convicted on the charge of maintaining a common nuisance by operating a place in the city of Hot Springs, Garland County, Arkansas, known as the Blumensteil & Wolf cigar store for the purpose of permitting and encouraging divers and' ill-disposed persons to resort thereto for the purpose of betting on various horse races run outside of the State of Arkansas. This is a second appeal from convictions on the indictment against appellants. See Blumensteil v. State, 148 Ark. 421.

M. A. Eisele testified that he was a city commissioner of the city of Hot Springs between January 1 and December 1, 1920; that he went to the Blumensteil & Wolf cigar store on one occasion with some of the other commissioners; that they went through the store and into the back room. There was an immense crowd congregated there, and as the commissioners went in, the crowd ran out through the front, back and side doors and every other way. There didn’t seem to be any kind of furniture there except a booth, apparently a window screened off, where somebody had taken bets, and Mr. Belding, the city manager, went and looked in there and laughed and said, “He went through the floor”. The appellant objected to that part of the statement of the above wit ness “that Belding went and looked in there and laughed and said ‘He went through the floor.’ ” The objection was overruled, to which ruling appellants duly excepted.

Appellants contend that the above ruling of the court is error for which the judgment should be reversed. After this testimony was given by Eisele, he further testified that “Belding picked up some cards off of the floor and said, ‘I want you gentlemen to see this.’ Then he pulled a card off the wall with apparently some betting odds or the names of horses, or something. He said he would use it.” There was no objection to this latter statement by the witness. The witness further testified that he thought there were about fifty people in the back room at the time the commissioners got there. This all occurred in the spring of 1920 in the city of Hot Springs, Garland 'County, Arkansas.

Belding testified that he was city manager of the city of Hot Springs and visited the Blumensteil & Wolf cigar store on the occasion mentioned by witness Eisele and the other commissioners, who accompanied him. The visit had reference to the suppression of 'book-making. He found there a crowd gathered in the back room of the store. Witness took a card off of the side of the wall pinned up there with horses’ names on it and found a crowd of people assembled, and they all made a mad rush for the doors and got out of there. When witness went in, he ‘ ‘ saw a cupboard or a door fall down and somebody in there — didn’t know who it was or where he went. He just disappeared suddenly.” Witness saw the shape of a man, but it was all done so quickly he couldn’t tell who it was.

The testimony of the witness Eisele, to which objection was made, was not a part of the res gestae, as the trial court seemed to think, but nevertheless there was no prejudicial error to appellants in admitting the testimony, because witnesses Eisele and Belding testified further without objection to the effect that the man standing behind the window in the booth in the back room in the cigar store suddenly disappeared — went through a trapdoor in the floor. In other words, there could be no prejudice to the appellants in not excluding the testimony of Eisele as to what Belding said and did, because Belding, who was a competent witness, testified fully to the same effect concerning what he did during this visit to the cigar store, and his testimony was relevant to the charge against the appellants.

Witness Stanley Lee testified that he was cashier of the Como Trust Company in the city of Hot Springs. He was acquainted with the- appellants. Appellant Wolf had one account at witness’ bank which was carried in his name and interest in three or four accounts. He had one in the name of “Blumensteil & Wolf,” one in the name of “Princess Theatre,” and one in the name of “Zero & Company”. Witness testified that the account in the name of “Zero & Company” was placed in his bank in the fall of 1919 or spring of 1920; that checks were drawn on that account signed “Zero & Company, by Wolf.”

Witness Bobert Neal, the vice president of the Arkansas National Bank of Hot Springs, testified that during the year 1920 there were accounts on the books of the bank in the names of Blumensteil & Wolf and Zero & Company; that the accounts were opened up as early as 1918 and were closed in 1921. The Zero Company never had a balance in excess of $10,000 at any one time, and that much only for a very short time. At one time there was on deposit the sum of $5,000. The account of the Zero Company was opened up by John C. Wolf. No check, so far as witness knew, was ever signed by any one except him. The cheeks were made payable to “Cash”. . Both the appellants also carried personal accounts in the bank. The appellants duly objected to the testimony of the above witness relative to the accounts other than the personal accounts of the appellants.

Several witnesses testified on behalf of the State to the effect that during the year 1920 they had made bets on horse races in the back room of the Blumensteil & Wolf cigar store; some of them had made bets with the appellants, and some of them had seen the appellants make bets there with others, and some of them had made bets over the telephone with the appellants, recognizing their voices. One witness testified that during the year 1920 he had bet about five or ten times with the appellants, most of it in December, 1920. There was testimony tending to show that when the parties making bets with the appellant won, the bets were paid by the appellants in cash. The testimony as to the names under which appellants were carrying their bank accounts in the city of Hot Springs was revelant. The testimony for the State tended to prove the allegations of the complaint that the appellants were conducting a place for the purpose of permitting certain persons' to resort thereto and to bet on horse races outside of the State, and the number of the accounts and the different names under which these accounts were carried were circumstances for the jury to consider in connection with the other testimony in determining whether the appellants were conducting a legitimate business in the city of Hot Springs at the place designated in the indictment.

One witness, Nobles, testified on behalf of the State that he was manager of the telegraph office of the Western Union Telegraph.'Company in the city of Hot Springs, and during the early part of 1920 handled messages for the appellants concerning horse races. He was asked this question: “Do you know anything about the extent of your messages or have you had any contract or relations with the defendants herein with reference to that sort of business?” The witness answered: “Not since the first of the year, but last year, I believe that they were receiving messages over the Postal — race messages.” Counsel for appellants thereupon objected “to anything the witness may believe”. The court thereupon ruled that the witness could not testify to what he believed unless his belief was based upon what he had heard the defendants say. The witness thereupon testified that he knew the telegraph companies were receiving messages for the appellants. Witness, representing the Western Union, said, “I made a call on the appellants for their busines, and they gave us a trial in 1920. When New Orleans opened up, we handled some of their business.”

There is no error in the ruling of the court in allowing the above testimony to go to the jury.

Witness Ledgerwood, police judge of the city of Hot Springs, was called as a witness for the State, and asked the following question: “During the month of December, 1920, were there any convictions before your court of either of the defendants herein for betting on the handbooks?” 'Counsel for the appellants objected on the ground that the records were the best evidence. The prosecuting attorney thereupon stated that he thought counsel for the appellants were not going to require him to bring the records. Thereupon counsel for appellants stated as follows: “He can testify concerning the convictions what his records show, but we don’t want him to go any further. We waive the records. ’ ’ The witness was then asked whether the defendants or either of them were convicted for book-making, hotting on the horse races, and answered, “I don’t recall whether they were or not. ’ ’ Manifestly, there was no error prejudicial to the appellants in the ruling of the court upon the above assignment. The testimony of the witness, to which objection was made, was without any probative force whatever against the appellants, and they are not in an attitude to complain of the manner in which the testimony was elicited.

The appellants next contend that the court- erred in refusing to give their prayer for instruction as follows: “You are instructed that, if you find the defendants guilty, you shall fix their punishment at a fine of not more than one hundred dollars or imprisonment in the county jail for a period of not more than ninety days, or both such fine and imprisonment.” And in giving to the jury on its own motion the following instruction: “If the defendants, or either of them, aré found guilty, the jury will fix a punishment which, in the sound judgment of the jury, is a just and fair punishment for the offense committed, if any, taking into consideration all of the circumstances that may tend to show aggravation or mitigation of the offense, if any has been committed. ”

The court did not err in refusing appellants’ prayer for instruction nor in giving the instruction on its own motion. It was within the province of the jury to determine under the evidence whether one or both the appellants were guilty or innocent of the crime charged. The appellants ’ prayer for instruction did not make this plain to the jury, but rather left the inference that the jury would have to return a verdict finding both the appellants guilty or both not guilty. It failed to instruct them that they were -at liberty, under the indictment and the testimony, if they found only one of the appellants guilty and the other innocent, to so find, or, if they found both guilty, or both innocent, to so find. The first part of instruction No. 8 covered the same subject-matter as to the punishment, in case of a verdict of guilty, as appellants’ prayer for instruction, and correctly informed the jury of its province to return a. verdict of guilty against one or both of the appellants if they so found. The instruction as to the punishment for the crime charged correctly declared the law as announced by this court on the former appeal. The specific objection to the latter portion of the instruction to the effect that it omitted to tell the jury that, in considering the circumstances of aggravation or mitigation, they must be guided by the evidence, we conclude is not tenable for the reason that, when taken in connection with all the instructions given to the jury, it is manifest that the jury was not authorized to consider any facts or circumstances that were not shown by the evidence in determining the guilt or innocence of the appellants or in assessing their punishment in the event of a verdict of guilty.

The jury was told in the instruction that if they found the appellants guilty they would fix the punishment that would be “just and fair.” This of itself was tantamount to telling the jury that it was not proper to go beyond the evidence, which they were sworn to consider, in order to increase or aggravate the punishment of the appellants. For, it would be obviously unjust and unfair to violate their oaths by considering any facts or circumstances not in evidence in order to aggravate the punishment of appellants. The law applicable to the .-facts developed at the trial was fully and correctly declared. The instructions certainly were as favorable to the appellants as the facts in evidence would warrant, and as they were entitled to ask. There was testimony to sustain the verdict. The appellants have had a fair trial. The judgments are therefore affirmed.


text:
    Henson & Sons Coal Company v. Strickland.
    Opinion delivered February 27, 1922.
    1. Witnesses — rule limiting number. — When the testimony on a certain point in a cause becomes merely cumulative, and the court can see that further development on that line is unnecessary, it is within the discretion of the court to control the number of witnesses testifying to that particular issue; but it is error to limit the number of witnesses to the issues in the case generally.
    2. Appeal and error — harmless error. — While it was error to limit the number of witnesses to two on a side, appellant cannot complain if the rule was not enforced as to it.
    3. Appeal and error — amendment of pleading to conform to proof. — On appeal a complaint will be treated as amended to conform to the issues that were raised by the testimony introduced by the parties without objection.
    4. Appeal and error — conclusiveness of chancellor’s finding.— Evidence held to sustain the findings of the chancellor.
    Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor;
    affirmed.

      Holland & Holland, for appellant.
    1. It was an abuse of discretion, and highly prejudicial, to limit the number of witnesses to two on each side. 116 Am. State Rep. 516; 42 111. App. 553; 83 Id. 329; 98 Id. 444; 26 R. C. L. 1033-4, § 37; 97 S. W. (Mo.) 867.
    2. The decree was erroneous in that it granted relief not prayed for in the complaint. Even under a prayer for general relief, the court cannot go outside the case made by the pleadings. 1 Black on Judgments, 2nd Ed. § 141.
    3. The contract involved here is to be interpreted in the light of the intent of the parties at the time it was made. 149 S. W. 75; 94 Ark. 461; 90 Ark. 272; 46 Id. 130.

      W. L. Curtis, for appellees.
    1. Before appellant can complain of the action of the court in limiting the number of witnesses as prejudicial, it must be made to appear that it was thereby prevented from introducing testimony which it could have produced, that would have had a tendency to change or alter the established facts in the case. C. & M. Digest, § 2167; 44 Ark. 180; Id. 556; 45 Id. 177; 48 Id. 312; 43 Id. 296; 46 Id. 542; 57 Id. 242.

      2. In the light of the facts and circumstances disclosed in the record, the complaint and the prayer for relief should be treated as amended so as to conform to the decree. 24 Ark. 326; 100 Id. 212; 97 Id. 576; 94 Id. 365; 82 Id. 603.
    3. To effectuate the intention of the parties to a contract is the cardinal rule for interpretation thereof. 94 Ark. 461; 15 Id. 286; 3 Id. 222; 28 Id. 282; 23 Id. 63. The parties are bound only as far as they intend to be bound. 34 Ark. 303.
   Wood, J.

The Western Coal & Mining Company was the owner of coal underlying the NW% of the SW% and the NE% of the SW% of section 31, township 7 N, range 31 west, in Sebastian County, Arkansas. On the 22nd of June, 1915, the Western. Coal & Mining Company executed a coal mining lease upon the above lands to the Mama Coal Company, a corporation. On the 20th of February, 1919, the latter company sub-leased a part of its coal and mining lease to J. L. Henson, J. W. Strickland and Edgar McDonald. McDonald soon thereafter sold his interest to his partners, J. L. Henson and J. W. Strickland. Henson and Strickland opened up what is designated in the record as “Mine No. 17%” near the southwest corner of the east forty acres of the above described tract. The main slope or entry of Mine No. 17% was driven a little east of north. On the '20th of January, 1920, Strickland and Henson entered into an agreement iby which they dissolved partnership. By the terms of the agreement Henson was to assume all liabilities of Mine No. 17%, and Stickland was to open up a new mine west of Mine 17% to be known as “Mine No. 5.”

Soon after the dissolution of the partnership between J. L. Henson and J. W. Strickland, the Henson & Sons Coal Company, a corporation, of which J. L. Henson is the president, took over Mine No. 17%. J. L. Henson was also the president of the Mama Coal Company. On the 24th of January, 1920, the Mama Coal Company executed a coal mining lease of the above lands to J. W. Strickland and Valentine Vervack. This lease covered the period of the lease agreement between the Western Coal & Mining Company and the Mama Coal Company, and the lease between those companies was referred to and made the basis of the lease agreement between Mama Coal Company and Strickland and Vervack, except as otherwise provided. By the terms of the lease between the Mama Coal. Company and Strickland and Vervack “the lessees agree to open a mine about half way between Mine No. Í7% and the old Man-way Mine No. 17, said mine to be known as Mine No. 5, and agree to mine and remove all coal in such a way as will not interfere with the workings of either Mine No. 17% or Mine No. 3.” Mine No. 3 referred to in the above lease between the Mama Coal Company and Strickland and Vervack is situated on the original lease, supra, made by the Western Coal & Mining Company to the Mama Coal Company. The main entry or slope of this Mine No. 3 was near the southwest corner of the west forty acres above described in the lease from the Western Coal & Mining Company to the Mama Coal Company.

After the lease of the Mama Coal Company to Strickland and Vervack was executed, the lessees entered upon the lands to the west of Mine No. 17% near the southern boundary of the west forty acres; and at a point satisfactory to all parties, opened up and drove their' main entry or slope in a northwesterly direction so as to reach a body of coal which was not accessible to either Mine No. 17% or Mine No. 3, on account of a fault in the formation. About the first of May, 1920, Henson & Sons Coal Company, in the course of development of Mine 17%, turned off from the main slope or entry of this mine and opened up from such main slope or entry what is designated in the record as “the second west entry.” This entry ran in a westerly direction from the main entry of Mine No. 17%. Henson & Sons Coal Company continued to work in this “second west entry” until the second ■ of December, 1920, when a temporary in,junetion at the instance of Strickland and Yervack was issued restraining J. L. Henson and Henson & Sons Coal Company from further operating on this “second west entry.” After the temporary injunction was issued and before the day for final hearing, Henson & Sons Coal Company filed its complaint against Strickland and Yervack and against Pink Shaw, who, at the instance of Strickland and Yervack, had ¡been appointed receiver to take charge of the property of Henson & Sons Coal Company. In its complaint Henson & Sons Coal Company, among other things, set up that Strickland and Yervack, in working their mine Ño. 5, were driving an opening and operating their mine in such a way- as to interfere with the workings of Mine No. 17% and Mine No. 3, and in violation of the terms of their lease and of the lease of Henson & Sons Coal Company. Henson & Sons Coal Company prayed that the temporary injunction issued at the instance of Strickland and Yervack he dissolved, and that upon a final hearing they be restrained from interfering with Henson & .Sons Coal Company in the operation of the west entry.

Strickland and Yervack answered the complaint, denying its allegations. They set up the various leases and reiterated the allegations of their complaint for a temporary injunction, and alleged that J. L. Henson aiid Henson & Sons Coal Company were seeking to operate Mine No. 17% without any authority from either the Western Coal & Mining Company or the Mama. Coal Company. Among other things, they alleged that Henson, the president of Henson & Sons Coal Company, was also president of the Mama Coal Company, and that he was in possession of all the facts contained in the various leases, reciting them, and by reason of such knowledge that he was estopped, either in his individual capacity,, or on behalf of Henson & Sons Coal Company, from denying to Strickland and Vervack the right claimed by them under their lease to work Mine No. 5, as they were then working and proposed to work the samé. - .

The causes were consolidated at the hearing. The court, upon the issues above presented, made findings substantially as above set forth, and in addition to the facts as already set forth, made substantially these fur: iher findings:

That the Western Coal & Mining Company, several years prior to the filing of this suit, had operated what is designated in the record as Mine No. 17 upon the lands above described, and had worked out and taken the principal part of the coal underlying these lands, with the exception of stumps or pillars, which had been left in the old Mine 17 for the purpose of supporting the roof or surface above, and had left some additional tracts which were inaccessible to the workings of Mine 17 because of certain faults in formation; that from the main slope of Mine 17 it had various entries running in easterly and westerly directions across the tract; that when Strickland and Henson entered into their agreement dissolving the partnership between them, Strickland did not by that agreement in any way release the rights conveyed to him to mine coal underlying the lands in controversy; that it was the intention of the parties by that dissolution agreement only that Strickland should relinquish to Henson his interest in the development and equipment of Mine No. 17% and not his right to mine coal from the main entry that he had driven and from which he was operating in Mine No. 5.

The court found that Strickland and Vervack had expended in excess of $8,000 in opening up Mine No. 5 in the manner in which they were doing, and that, after they had made this investment in the development of that mine, Henson & Sons Coal Company turned a west entry off of Mine No. 17% and drove the same into the workings of old Mine 17 and into an east and west entry thereof and proposed to lay its mine track along same to a point directly in front of and to the west of the main entry of Mine No. 5, which Strickland and Vervack were driving across their mine lease a little bit west of north; that Henson had begun to shoot down and remove stumps and pillars and remaining coal from the workings of old Mine 17 in such a way as to remove the supports of the roof and earth above said workings, which would cause 'the same to cave in, with the result that Strickland and Vervack would be cut off from access to any minable coal to the north and in front of the direct line of their main entry or slope.

The court further found that Mine No. 17% was being operated by Henson & Sons Coal Company only under such authority as it had under the joint lease from the Mama Coal Company to Henson, Strickland and McDonald. The court found that there was no express agreement between Henson and Strickland as to th,’e boundaries within which Mine No. 17% and Mine No. 5 should be operated, but that, from all the testimony in the case, it was the understanding and intention of the parties that Mine No. 17% should have the privilege and right to take all of the coal underlying the east forty acres of said land to the east of its main north and south slope or entry, and that Mine No. 5 should take all of the coal from a point one hundred feet east of its north and south entry extended to the north boundary underlying the west forty acres of said tract, with the exception of that portion of same which is occupied by the workings of Mine No. 3 to the west.

The court entered a decree in accordance with its findings, forever' restraining J. L. Henson and Henson & Sons Coal Company from proceeding to enter upon and mine and remove the coal from the above described tract of land from a point west of 100 feet east of the main slope or entry extended to the northern boundary of said tract of Mine No. 5. From that decree is this appeal.

1. The appellant contends that the court erred in arbitrarily limiting the number of witnesses in the case to two to the respective sides. The bill of exceptions brought into the record shows the following: “The court announced at the beginning of the trial, and after all the witnesses had been sworn, that it would hear only two witnesses each for the respective sides, to which the defendants at the.time excepted.” The rule of the court limiting the litigants to two witnesses to prove their respective contentious was unreasonable and arbitrary. St. Louis, etc. Ry. Co. v. Aubuchon, 97 S. W. (Mo.) 867. Such rule applied to the main issue or issues in lawsuits might result in great injustice and in many instances render it impossible for the person upon whom the burden of proof rests to recover. Por, under such a rule, it might often occur that the witnesses for the respective sides would be equally credible; that the character and nature of their testimony might be such as to cause them to be considered as equally credible, and that their testimony therefore should be given the same weight.

Thus, under such circumstances, the party having the burden of proof must necessarily fail. Whereas, if his witnesses were not limited, it might be within his power, by the number or character of other witnesses, to meet the burden of proof and recover on his cause of action. While preponderance is not determined alone by the number of witnesses, yet numbers are not to be ignored, and the circumstances might be such that the number of witnesses would be an important factor in arriving at a conclusion as to the preponderance of the evidence. Restricting the witnesses to any given number on the respective sides in many instances might lead to a deadlock on the question of preponderance of evidence and cause the party having the burden to lose his case, when otherwise he might meet the requirements of the burden of proof simply by having a greater number of equally credible witnesses to the facts that control the issues involved.

In Jones v. Glidewell, 53 Ark. 161-178, Chief Justice Cockbill, speaking for the court, said: “Limiting the time for the examination of witnesses, the number of witnesses to a given point, stopping repetitions and irrelevant examinations, are matters necessarily confided to a trial judge.” When the testimony becomes merely cumulative on a certain point in the cause, and the court can see that further development on that particular line is unnecessary, of course it is within the discretion of the court to control the number of witnesses testifying to that particular issue. Here the court did not undertake to limit the number of witnesses testifying to a given issue that had already been fully developed, and where further-testimony would be only cumulative, but, under the rule announced witnesses were limited to a given number, not on any given point, but to the issues in the case generally. We cannot give our sanction to such a rule.

Judge Freeman, in his notes to St. Louis, etc. Ry. Co. v. Aubuchon, reported in 116 Am. State Rep., page 516, says: “It is a well settled principle of constitutional law that no person shall be condemned without a hearing, and that every one who is by process called into court in any matter affecting his interests has an absolute right to be heard, and that any judgment pronounced when such hearing is refused is void. Can there be any difference in principle between refusing' a hearing and according a partial hearing only? It would seem that the power to limit the number of witnesses which will be heard on a contested issue can be upheld only when it is apparent that a party is trifling with the court and seeking in bad faith to waste its time and obstruct the administration of justice, and that a verdict or finding against him on such issue must be set aside when he was denied the right to offer and have received all the evidence and witnesses produced by him, for under no circumstances can it be judicially known that such additional evidence or witnessess, if received, would not have overcome those of his adversary. To restrict the parties, as courts sometimes do, to an equal number1 of witnesses on each side of the question, must, under ordinary circumstances, result in a verdict against the person on whom the burden of proof rests, for he cannot be held to have sustained such burden where the testimony offered by him only equals that offered by his adversary.” See also 26 R. C. L. 1034, sec. 37; Cook Brewing Co. v. Ry. 98 Ill. App. 448; Crane Co. v. Stamus, 83 Ill. App. 329; Traders Ins. Co. v. Catlin, 71 Ill. App. 569; South Danville v. Jacobs, 42 Ill. App. 533.

We approve the rule thus expressed by Judge Freeman, and hold that a trial court taking testimony ore tenus should not undertake to limit the number of witnesses introduced by the respective parties until it becomes obvious to the court that the parties by the sheer number of witnesses introduced to some particular fact or issue are merely producing cumulative testimony, thus unnecessarily consuming the time of the court, and hampering the administration of justice. But, while condemning the rule above announced by the trial court, it appears that the court in this case departed from its own rule, for it permitted the appellant to introduce three witnesses. Thus the rule was not enforced to the prejudice of the appellants. Furthermore, the appellant did not offer to introduce any more witnesses whose testimony they desired in addition to the testimony of the witnesses already adduced. Therefore, the appellants were not prejudiced in the rule announced by the trial' court.

2. The appellant contends that the court erred in granting relief “not asked for in the complaint or petition for injunction.” The appellees prayed for an order of the court perpetually “restraining and enjoining the defendant, J. L. Henson, his agents, servants and employees from going into the workings of old Mine No. 17 or any part thereof, and from taking therefrom any of the pillars or supports located therein, or from in any other way obstructing the passage ways of said mine line, or in any other way preventing or obstructing these plaintiffs from using same as a passage way to reach the body of coal located adjacent to and on the north of said workings * * # * and all other proper relief.”

The complaint on appeal should be treated as amended to conform to the issues that were raised by the testimony introduced by the parties without objection. Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212; Pu laski Gas Light Co. v. McClintock, 97 Ark. 576; Rucker v. Martin, 94 Ark. 365.

The prayer of appellees in their petition or complaint was certainly sufficiently comprehensive to justify the court in granting to the appellees all the relief set forth in the decree. Was the testimony adduced sufficient to sustain the findings upon which the court rendered its decree? This is purely a question of fact, and one we have found difficult to decide. It could serve no useful purpose as a precedent to set forth and discuss in detail the testimony, which is rather voluminous. After a careful consideration of the provisions of the various leases and the testimony of the witnesses concerning the workings of the coal mines thereunder, we are convinced that the findings of the trial court are sustained by a preponderance of the evidence. We therefore adopt such findings as our own.

• We are largely controlled in this conclusion by the construction which the Mama Coal Company, the immediate lessor of the parties, placed upon the leases under which the parties -to this record were operating the mines under their respective leases. The record shows that the Mama Coal Company, when its attention was called to the local situation in the operation of the mines by the respective parties, through its board of directors issued a notice in writing to the appellant, which, among other things, specified as follows: “It has come to the attention of the Mama Coal Company that you, in working the Mine No. 17% under your lease from said Mama Coal Company, have removed and are about to remove some of the remaining pillars in Mine No. 17 and in front of slope of Mine No. 5, all of which is contrary to any rights vested in you by your lease on Mine No. 17%, and all of which is not in keeping with good mining, and is contrary to any rights vested in you under your said lease. And you are hereby further notified not to in any way disturb any of the pillars or workings of said Mine No. 17, or to shut off or obstruct the extension of the slope of Mine No. 5, and that any act upon your part in violation of this notice shall and will operate as a cancellation of your said lease on Mine No. 17%. ”

This 'construction of the lease by the Mama Coal Company, taken in connection with the other testimony adduced on behalf of the appellees, shows that the appellants, by undertaking to shut off and obstruct the appellees in the extension of their main slope in Mine No. 5, were violating the rights of the appellees under the contract 'by which the partnership between Henson and Strickland was dissolved, and under the terms of which the appellees opened up Mine No. 5 between Mine No. 17% and Mine No. 3. The lease executed by the Mama Coal Company to the appellees, (which was for the purpose of enabling the appellees to open up Mine No. 5 in pursuance of the contract of dissolution of the partnership between Henson and Strickland) provided that the lessees (appellees here) “should open up Mine No. 5 half way between Mine No. 17% and the old Man-way to Mine No. 17, and agree to mine coal in such a way as not to interfere with the workings of either Mine No. 17% or Mine No. 3.” The preponderance of the evidence shows that the workings of Mine No. 5 by the appellees did not interfere with the workings of Mine No. 17% or Mine No. 3, but the appellants, in driving their “second west entry” into the workings of old Mine No. 17 and in following said entry to the west as they were doing, would shut off and prevent the appellees from extending the main slope of their Mine No. 5 on the lands covered by their lease.

The trial court, after hearing all of the evidence, interpreted the contracts as the Mama Coal Company interpreted them as shown by the above notice. Without entering into further detail, it suffices to say that the findings of the trial court are in all things correct, and its decree is therefore affirmed.


text:
    Argenta Special School District v. Strickland.
    Opinion delivered February 27, 1922.
    1. Schools and school districts — authority to discharge teacher. —Where a contract of a school board employing a teacher stipulated that his services might be dispensed with and his salary discontinued at any time after it has been decided by a majority of said board that his services were unsatisfactory, the board was authorized to dispense with the teacher’s services at any time after he had entered upon the performance of his contract whenever a majority of the board determined for any reason that such services were unsatisfactory, and this could be done without giving him any notice of their contemplated action in that regard; but the board was not authorized to discharge the teacher before he had entered upon his services, upon the ground that his services would be unsatisfactory because of certain protests made by patrons of the school.
    2. Trial — directing verdict. — Where the undisputed evidence established that a school board wrongfully discharged a teacher, and that he was damaged in the sum the board had contracted to pay him, it was not error to direct a verdict for him in that sum.
    Appeal from Pulaski Circuit Court, Second Division ; Guy Fulk, Judge;
    affirmed.

      Colemcm, Robinson & House, for appellant.
    The majority of tlie board had the right to discharge the plaintiff. 13 C. J. Contracts, § 768; 36 Fed. 414; 1 L. R. A. 645; 182 Pac. 428; 6 A. L. R. 1493. The court should have instructed a verdict for defendant.

      Fred A. Isgrig and Hendricks & Snodgrass, for appellee.
   Wood, J.

The appellant and the appellee entered into the following contract;

“teacher's contract with the argenta school board.
“I, J. P. Strickland, hereby enter the service of the Argenta schools in the capacity of teacher, for the sum of $110 per month, with the understanding that my services may be dispensed with and my salary discontinued at any time after it has been decided by a majority of said board that my services are unsatisfactory. Term to begin in September and continue nine months.
“I hold first grade license, which expires........................1919.
“Argenta, Ark.
“April 23, 1919.”

The appellee instituted this action against the appellant, and in his complaint set up the contract and alleged that the appellant arbitrarily refused to permit the appellee to carry out his contract, although he was ready and willing to do so, to his damage in the sum of $990, for which he prayed judgment.

In its answer the appellant admitted the contract, and set up that at a meeting of its 'board of directors held in the city of North Little Rock on the 8th day of August, 1919, a majority of the board found that the services of the appellee were unsatisfactory and discharged him pursuant to the provisions of the contract. It denied that it arbitrarily refused to permit the appellee to carry out the contract.

The undisputed testimony shows that the appellant on August 8, 1919, at a meeting of its board of directors, by a majority of the board, discharged the appellee on the ground that his services were unsatisfactory. The undisputed testimony further shows that the board discharged the appellee without giving him any notice of its contemplated action. At the conclusion of the testimony the court refused to grant the prayer of the appellant to instruct a verdict in its favor, but over the .objection of the appellant granted the appellee’s prayer to instruct a verdict in his favor in the sum of $990. From the judgment in appellee’s favor for that sum is this appeal.

The appellant contends that under the contract it had the absolute right to determine, in advance of the time when the appellee’s services were to begin under the contract, that such services would be unsatisfactory to the appellant and to discharge him without notice. We cannot agree with the appellant in this construction of the contract. The contract contemplated that the appellee would render services to the appellant as teacher, such services to begin in September and to continue for nine school months. The appellant violated its contract by discharging the appellee before the time for his services to commence. The contract was for appellee’s services, and the board could not discharge the appellee on the ground that his “services were unsatisfactory” before he had performed any service under the contract and before the time when he was to begin to render service to the district. The board unquestionably would have had the right under the contract to have dispensed with appellee’s services at any time after the appellee had entered upon the performance of his contract, whenever a majority of the board determined for any reason that such services were unsatisfactory, and a majority had such right to dispense with his services without giving him any notice of their contemplated action in that regard. 13 C. J. sec. 768; Campbell Printing Press Co. v. Thorp, 36 Fed. 414; 1 L. R. A. 645 and note; Tiffany v. Pacific Sewer Pipe Co., 182 Pac. 428, 6 A. L. R. 1493.

But the board, as the undisputed evidence shows, undertook to discharge the appellee, not on the ground that any services actually rendered were unsatisfactory, but on the ground that his services would be unsatisfactory because of certain protests that had been made by patrons of the school, and certain charges brought to the attention of the board against the appellee’s moral character, which, whether true or not, in the judgment of the board rendered his employment as a teacher inadvisable and any services contemplated by the contract unsatisfactory.

To be sure, the board had the inherent power to discharge the appellee as a teacher on the ground of immorality or general unfitness at any time before his services began or after he had entered upon his services under the contract. But, if the board did discharge appellee on the above grounds, it was incumbent upon it to justify its conduct by proof that the dismissal of appellee was because of immoralities or other causes rendering him incompetent or unfit to teach in the public schools. The 'board did not attempt to justify its action by making such proof, but defended solely on the ground that the contract itself gave the majority of the board the right to discharge him at any time after the contract was executed, if they concluded his services would be unsatisfactory, and even before the services began. The undisputed testimony shows that there was a clear breach of contract on the part of the appellant; that the appellee, during the time contemplated by the contract when he was to render services to the ax»pellant, was ready to perform those services; that he had tried to find work and had failed. The undisputed testimony shows that appellant by its breach of contract had damaged the appellee in the sum of $990, the amount the board had contracted to pay him for his services. The court therefore correctly ruled in instructing the jury to return a verdict in favor of the appellee and in rendering judgment in his favor for such sum. Affirmed.


author: Hart, J.

text:
    Johnson v. State.
    Opinion delivered February 27, 1922.
    1. Witnesses — competency of convicts. — Under Crawford & Moses’ ■ Dig., § 4145, State convicts are not disqualified from testifying in any action, civil or criminal; but the evidence of his conviction goes only to his credibility.
    2. Intoxicating liquors — evidence.—Evidence held, to sustain 'a conviction of selling intoxicating liquor.
    3. Criminal law — judicial notice. — The. court takes judicial cognizance of the fact that whiskey is intoxicating.
    4. Criminal law — instruction—when not peremptory. — An instruction that if the jury believes any witness has testified falsely . to any material fact they may disregard the whole of his testimony except such of it as they may believe to be true is not open to the objection that it is peremptory in substance.

      5. Criminal law — proof of another offense. — Proof of another offense than the one charged is admissible where the crimes are so related to each other that proof of one tends to establish the other or to connect the defendant with the commission of the crime charged.
    Appeal from Lincoln Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      A. J. Johnson and Henry W. Smith, for appellant.
    The court erred in admitting the testimony of Tom Cogbill, tending to establish the commission of another crime.
    Instructions 1 and 2 were incorrect and conflicting, and therefore, error. 89 Ark. 213; 55 Ark. 397.
    The verdict is so clearly against the weight of the evidence as to shock the sense of justice, and should be reversed. 70 Ark. 385.

      J. S. Utley, Attorney General, Elbert Godwm and W. T. Hammock, Assistans, for appellee.
    The evidence of Cogbill was admissible as it was a part of the entire transaction and so linked with the offense charged, as to point of time and circumstances, that one cannot be fully shown without proving the other. 8 R. C. L. sec. 195, p. 199; Bishop’s New Crim. Pro., vol. 2, secs. 1120-1121; 37 Ark. 261; 52 Ark. 303; 84 Ark.. 16; 91 Ark. 555.
    Witnesses are not disqualified because they are convicts. Sec. 4145, C. & M. Digest. Their credibility is a question for the jury. 36 Ark. 653; 32 Ark. 220.
    It was not error to instruct the jury as was done in instruction No. 6, that whiskey is intoxicating. 37 Ark. 219; Joyce on Intoxicating Liquors, sec. 34, p. 41.
   Hart, J.

Bull Johnson prosecutes this appeal to reverse a judgment of conviction against him for selling intoxicating liquors,

It is earnestly insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict. The defendant lived near the State convict farm in Lincoln County, Arkansas, and the principal witnesses against him were three convicts and one of the wardens. One of the convicts testified that he bought a pint of corn whiskey from the defendant at his house in October, 1920, and also got some from him at Grady, during the same year; that he paid him a dollar for the whiskey each time, and that his folks sent him the money.

The second convict testified that the defendant lived about a half a mile from the State convict farm at Cummins, and that he bought a half pint of whiskey from defendant just before Christmas in 1920; that he paid him a dollar for the whiskey and got the money from home.

LeRoy Hill, another convict, testified that while he was a trusty he would steal oats from the barn on the convict farm and leave them outside for the defendant, and in this way would pay the defendant for the whiskey he got from him; that he got whiskey from the defendant several .times; that he never paid the defendant any money for the whiskey, but just traded the oats for it; that he escaped from the convict farm soon after he stole the oats.

Still another convict testified that he was with Le-Roy Hill when he got a bottle from the defendant, but does not know what was in the bottle.

Tom Cogbill, a warden at the State farm, testified that he found the stolen oats at the defendant’s house and identified them just after LeRoy Hill escaped.

This testimony was sufficient to warrant a conviction In this State convicts are not disqualified from testifying in any action, civil or criminal; but the evidence of his conviction only goes to his credibility. Crawford & Moses’ Digest, § 4145.

It is true that the defendant denied selling the whiskey to the convicts, and introduced other evidence tending to corroborate his testimony. The evidence in behalf of the defendant, however, did not overcome the evidence for the State. It only made a conflict in the evidence, and the jury, being the judges of the credibility of the witnesses might, under the statute, find for the State, although the witnesses were convicts.

It is next insisted that the court erred in instructing the jury that whiskey, is an intoxicating liquor. In making this contention, counsel for the defendant recognized that it was held in Edgar v. State, 37 Ark. 219, that the court would take judicial cognizance that whiskey is an intoxicating liquor. Counsel contend, however, that the evidence tends to show that the whiskey charged to have been sold in the present case was made by the defendant himself out of corn.

In Fears v. State, 54 S. E. 661, the Supreme Court of Georgia held that it was not error for the court to charge that corn whiskey was intoxicating, since judicial cognizance is taken of the fact that whiskey is a spirituous liquor. It could make no difference whether the whiskey was made by the defendant or some one else and the court did not err in instructing the jury that whiskey is an intoxicating liquor.

Counsel for defendant -also assigns as error the action of the court in giving instruction No. 3, which reads as follows: “You are not permitted to arbitrarily disregard the testimony of convicts solely because they are convicts, but you should weigh their testimony as you would the testimony of other witnesses and apply the same rule; that is, you will consider their manner of testifying, their motives, if any appear, the reasonableness or unreasonableness of their testimony, their means of knowledge about which they testify, and you are the sole judges of .the weight of the testimony and credibility of all the witnesses. Applying this rule, if you believe any witness in the case has testified falsely as to any material fact, you may disregard the whole of the testimony except such of it as you may believe to be true.”

It is claimed that the first part of the instruction unduly emphasizes the testimony of the convicts, and that. tlie last sentence is peremptory in its nature. We do not think so. As we have already seen, our statute provides that no person shall be disqualified to testify in any action, civil or criminal, by reason of having been convicted of any felony or other crime whatsoever. Crawford & Moses’ Digest, § 4145.

Therefore, the instruction is not open to the objection complained of, and the court properly gave it to the jury. The concluding sentence of the instruction might be said to be faulty in form or verbiage, but it is not open to the objection that it is peremptory in substance.

The next assignment of error is that the court erred in the admission of certain testimony to the jury, and this is the most serious question in the case.

LeRoy Hill, a convict, testified that he bought whiskey from the defendant several times and paid him by stealing oats from the barn on the State convict farm and placing them behind the barn for the defendant to get. Hill was a trusty, and soon after this escaped.

Tom Cogbill, one of the wardens, testified that he missed the oats from the feed house and saw where some of them had been spilled back of the house. He saw tracks of two mules which had drawn a buggy with wobbly wheels from the place where the scattered oats were found back of the barn and followed the tracks to where the defendant lived. The defendant had a buggy and two mules which corresponded with the tracks. Some oats in a sack tied and sewed with blue strings and bands in the same way as the oats taken from the feed house on the convict farm were found in the defendant’s possession. Cogbill identified them as the oats which had been stolen from the barn on the convict farm. The defendant testified that he had bought the oats from a merchant at Grady.

Counsel for the defendant invokes the general rule, that it is not competent in the prosecution of one crime to introduce evidence of other offences. This rule is so well established that citation of authorities in its support is unnecessary, but certain exceptions to it are equally well settled. They are clearly stated in Billings v. State, 52 Ark. 303, as follows: “The general rule is well established, in civil as well as in criminal cases, that evidence shall be confined to the issue. It seems that the necessity for the enforcement of the rule is stronger in criminal cases. The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the-defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule it is generally improper to introduce evidence of other offenses; but if facts bear upon the offense charged, they may be proven, although they disclose some other offense. The test of admissibility is the connection of the facts offered with the subject charged. Such connection exists in a variety of cases, and in them it is often proper to prove one offense in a trial for another. ’ ’

Continuing, Judge Hemingway, who delivered the opinion of the court, stated the exceptions to the rule, and one of them is that such evidence is admissible when the offense charged and the offense proved are so connected that they form parts of one transaction. See also, Starchman v. State, 62 Ark. 538.

In the present case it was of some importance to trace into the defendant’s possession the stolen oats. One of the convicts had testified that he had purchased whiskey from the defendant and paid for it with oats which he stole from the convict barn while he was a trusty. Soon after this he escaped, and one of the wardens discovered that the oats had been stolen and carried away in a wobbly buggy drawn by a pair of mules, .and the warden followed the tracks to the defendant’s house and found that he had a pair of mules and a buggy which corresponded with the tracks which he had traced from the.barn to the defendant’s house. He also found in the defendant’s possession oats, which, by means of a certain kind of sacks and strings, lie identified as being the oats stolen from the 'State farm. This evidence was purely circumstantial and was in itself not very strong, yet it was relevant and proper for-the consideration of the jury in connection with the other facts and circumstances tending to connect the defendant with the commission of the crime charged in the indictment. Another convict had testified that he saw the defendant deliver a bottle of something to Hill. The commission of both crimes was connected with each other and constituted a single transaction. Such evidence is competent where it tends to show that the crimes are so related to each other that proof of one tends to establish the other or to connect the defendant with the commission of the crime charged.

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


author: Smith, J.

text:
    Leahy v. Richardson.
    Opinion delivered February 27, 1922.
    1. Evidence — written instrument — parol testimony. — Where a written instrument is not sufficiently definite to be interpreted from a study of its provisions, parol testimony may be admitted to show what the contract was.
    2. Frauds, statute of — memorandum of lease.' — An oil and gas lease was not within the statute of frauds where cash for the rental was deposited in escrow together with the lease and an abstract of the title, though the lease alone was too indefinite to set out the terms of the lease.
    3. Specific performance — right to enforce lease. — Where a contract for a lease obligated the lessor only to convey such title as the lessor had, and he tendered a lease accordingly, the lessee, upon rejecting the lease for a defect in the lessor’s title, was not entitled to compel specific performance.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      Marsh & Marlm, for appellants.
    The written agreement of sale was so indefinite and uncertain as to require parol evidence to explain it. To entitle one to specific performance, the contract must be complete and free from ambiguity. 25 R. C. L., p. 218, sec. 17; 160 S. W. 854.
    Appellee did not pay or offer to pay the consideration for the lease and was not entitled to maintain suit for specific performance. 184 Pac. 1010; 181 Pac. 964.
    There was no mutuality of obligation, and appellee was not entitled to specific performance. 25 R. O. L., pp. 232, 233, par. 33 Equity will not decree specific performance where performance by one party is entirely optional. 170 Pac. 691; 121 Fed. 674; 57 C. C. A. 428; 25 Okla. 809; 38 Ark. 31; 23 N. J. 336; 4 Ark. 252; 19 Ark. 23; 27 Ark. 704. Nor where it would be inequitable under all the circumstances, resulting in wrong or injustice. 34 Ark. 663; 49 Ark. 306; 14 Ark. 482.

      Goodwin & LeCroy, for appellee.
    The agreement of sale, when read in connection with the assignment, makes the result desired by the parties plain. 'See 45 Ark. 17.
    Appellee was entitled to a marketable title, and that was what he was demanding. 120 Ark. 69; 63 Ark. 548; 11 Ark. 75; 85 Ark. 289; 114 Ark. 436; 211 S. W. 917; 20 Ark. 648.
   Smith, J.

This suit was brought April 29, 1921, to enforce the specific performance of a contract resting partly in writing and partly in parol. The written portion is as follow:

“Agreement of Sale.
“This agreement, made and entered into this 19th day of March, 1921, by and between J. F. Robinson, agent, and T. J. Leahy, trustee.
“Witnesseth: That the said T. J. Leahy has this day executed an oil and gas assignment covering the following described lands in Union County, Arkansas, to-wit: Northwest quarter of the northwest quarter, section 21, township 18 south, range 15 west, consisting of forty acres, to Bank of Commerce, trustee, for the consideration of six thousand dollars, of which the said sum of $-cash has been paid, and the said Bank of Commerce, by D. C. Richardson, for trustee, and the further sum of - when he shall furnish an abstract of title showing a good merchantable title to the above described lands in said Union County, said abstract of title to be furnished at the earliest possible date.
“Witness our hands this 19th day of March, 1921.
“J. F. Robinson,
“J. P. Browder, Agent.”

It is apparent that this writing is not sufficiently definite to be interpreted from a study of its provisions, and it requires a consideration of the oral testimony to ascertain what the contract was. Thompson v. Davenport, 145 Ark. 276; Izard v. Connecticut Fire Ins. Co., 128 Ark. 433. But, when read in connection with the oral testimony, it shows the following contract was made between the parties: T. J. Leahy and I). C. Richardson were each engaged in buying and selling leases in the El Dorado oil field, and in the negotiation of this contract Leahy was represented by Robinson, and Richardson was represented by Browder. The land described in the writing was owned by a Mrs. Craig, who executed an oil and gas lease thereon to Leahy, reserving to herself a royalty of one-eighth of any oil or gas produced. This lease, assigned to Richardson, was deposited in escrow with the writing set out above, together with six thousand dollars in cash, in the Bank of Commerce in El Dorado, Ark., and a few days later the abstract called for in the writing set out above was also deposited with the bank. This action met the requirements of the statute of frauds, notwithstanding the indefiniteness of the writing set out above. Hollabaugh v. Taylor, 134 Ark. 415.

The question in the case appears to be what the agreement was between these two agents with reference to this lease, and Ave think the testimony of those cognizant of the transaction establishes the facts set out above and the following additional facts. It was supposed that Leahy’s title was good, and that the abstract of the title would show such to be the case. An abstract was to be prepared at the earliest possible date and submitted to the attorney for Richardson for examination, and the Bank of Commerce in El Dorado was to hold the money and the assigned lease until the abstract had been examined; and if, after examination of the title offered, the same was approved, then the bank was to deliver the assignment to Richardson and the cash to Leahy; and, if the title was not approved, then the money .should be returned to Richardson and the lease to Leahy. Upon examination of the abstract, the attorney for RichaiAson found that, although the lease from Mrs. Craig to Leahy was executed on April 20, 1920, it liad not been filed for record until January 18, 1921, and that in the meantime Mrs. Craig had executed to the Frederick Oil Company a lease to this land to an undivided half interest in the oil and gas rights, and that the lease to the Frederick Oil Company had been filed for record before' Leahy had filed his lease for record.

The husband of Mrs. Craig testified that the Frederick Oil Company was a corporation, of which Mrs. Hancock was the president and general manager, and that Mrs. Hancock knew of the prior lease to Leahy, and that the lease to the Frederick Oil Company was intended to convey an undivided half interest in the royalty of one-eighth reserved by Mrs. Craig in her lease to Leahy; but it appears that this lease to the Frederick Oil Company was not thus limited; and that the court was warranted in the finding made that this lease to the Frederick Oil Company constituted a cloud on the title.

Upon discovering this cloud, the parties negotiated without result in an attempt to adjust their differences. In the meantime a well known as the Mack Ward well was being drilled near the land in controversy, and Leahy insisted that Richardson was trying to “ride” this well in, meaning thereby that Richardson was trying to postpone the consummation of the contract until it was.known whether the Ward well would prove to be a producer. The testimony clearly shows that the value of the lease in question largely depended on the outcome of the Ward well. Leahy called on Richardson to accept the lease or to turn it down; but Richardson insisted that Leahy acquire the Frederick Oil Company lease or execute an in demnifying bond against the assertion of any rights under that lease. Leahy did not comply with either of these requests, whereupon Richardson brought this suit to enforce specific performance, and prayed that Leahy be required to acquire the interest of the Frederick Oil Company or that, if -this could not be done, that Leahy be compelled to convey such interest as he was adjudged to own, and that the consideration • be abated proportionately.

Immediately after this suit was filed an assignment of the lease was again tendered to Richardson and a demand made that he pay the six thousand dollars or dismiss the suit, and notice was given that the proposition would not be held open. Richardson refused to pay or to dismiss the suit, whereupon Leahy assigned the lease to C. 'S. McDonald for the sum of $10,000.

Before making this sale to McDonald, Leahy drew on Richardson through the bank at El Dorado. This draft was forwarded on May 3rd by the bank at El Dorado to a bank at Shreveport, where Richardson resided, for collection. On May 5th the bank at El Dorado was advised by wire from the 'bank at Shreveport that the draft was not paid, and that Richardson refused to pay until the required papers were attached. On May 6th the bank at Shreveport wired the El Dorado bank that the draft had been paid, although no papers had been sent as called for in the telegram of the 5th, nor had any message regarding the draft been sent by the El Dorado bank. Between the dates of these two telegrams McDonald bought the lease. The testimony shows that the Mack Ward well came in as a producing well late on the night, of May 4th, and the immediate effect thereof was to greatly enhance the value of the lease in question.

Tlie court found that, because of the lease to the Frederick Oil Company, the title to an undivided half interest in the oil and gas lease was rendered unmerchantable; but the court found that Richardson was entitled to specific performance of said contract to the unclouded half interest, with a corresponding abatement of the purchase price, and entered a decree directing this conveyance; and this appeal is from that decree.

We think the court below erred in its decree. This was not. a contract to make a good title, but was a contract to convey such title only as Leahy had, the right being given to the purchaser to pass upon its sufficiency. It appears to be conceded that the lease to the Frederick Oil Company constituted a cloud, as found by the court, and fully warranted Richardson’s attorney in refusing to approve the title. Richardson had the right to accept this title or to reject it upon the opinion of his attorney; but this right was to accept or to reject it in its entirety. He was called upon to make this decision, and responded by bringing this suit, and declined to pay the draft drawn upon him until after' he knew the Ward well had come in as a producing well.

We think Richardson should not have been allowed thus to speculate on the outcome of the Ward well. His attorney should have approved the title or should have rejected it. Richardson had the right to waive the defect pointed out; but he did not elect to do so. It was unnecessary for Richardson to bring suit to acquire the interest which Leahy had in the lease from Mrs. Craig, as a valid assignment therefor was tendered more than once. Richardson understood this, for on May 6th he paid the draft which he had refused to pay on May 5th.

We conclude therefore that Richardson waived his right to accept the title tendered and was not subsequently entitled to enforce its specific performance. The decree of the court below is therefore reversed, and the cause is remanded, with directions to the court below to dismiss the complaint as being without equity.


text:
    Cuzic v. State.
    Opinion delivered February 27, 1922.
    Criminal law — proof of venue. — Evidence that a killing took place near a certain home shown to be situated within the county of the venue is sufficient proof of the venue.
    Appeal from Crawford Circuit Court; J cunes Cochran, Judge;
    affirmed.

      Wofford & Arlniclde, Starbird é Starbircl, for appellant.
    No venue was proved, and the judgment should be reversed. Bishop’s New. Crim. Proc. sec. 360, 384; 56 Ark. 244; 77 Ark. 19; 92 Va. 824; 24 S. E. 272; 100 Va. 860 ; 42 S. E. 865; 8 Ark. 400; 35 Ark. 386; 58 Ark. 390.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Emnmock, Assistants, for appellee.
    It is not necessary to prove the venue beyond a reasonable doubt, but it is sufficient if proof is made by a mere preponderance of the testimony. 62 Ark. 497; Enc. of Ev. vol. 13, pp. 931-932; 68 Ark. 336; 73 Ark. 484. The necessary proof was made by the witnesses of appellant and the State.
   Smith, J.

Appellant -was convicted of voluntary manslaughter, and has appealed.

The only error assigned for the reversal of the judgment is that the State failed to prove the venue.

The crime was alleged to have been committed in Crawford County by killing one Ellis Edens.

The testimony on the question of venue is to the following effect: A warrant for the arrest of Virgil and Ellis Edens, who were brothers, was issued by W. H. White, a justice of the peace in and for the County of Adair, State of Oklahoma. This warrant was sent by the Oklahoma authorities to the authorities of Crawford County, where the following endorsement was made on it: “Endorsed and made valid in Crawford County, Arkansas. (Signed) John G. Collins, Justice of the Peace Barker township. ’ ’ John Gf. Collins was a justice of the peace for Barker township, Crawford County, Arkansas. The first witness called for the prosecution was asked, “Were you, on or about the 23rd day of January of this year, in Crawford County, called upon to go with a posse to arrest the Edens boys?” He answered that he was, and stated that he went with a posse to the home of Mrs. Mary Wright, the mother of the Eden boys. And all the witnesses testified that the killing occurred near Mrs. Wright’s home. J. P. Dobbs, a witness for appellant, was asked, “Where do you live?” and answered “Barker township, Crawford County.” T. J. Jones, a witness for appellant, was asked where he lived, and answered, “Barker township.” He asked if that township was in the northwesten part of Crawford County, and answered that it was. A. Sipple, a witness for appellant, testified that he lived in Rose-dale, Barker Township. Jim White, a witness for appellant, testified that he lived in Barker Township, and was asked, “Do you know where Mrs. Wright lives in Barker Township?” and answered, “Yes sir.” The sheriff of the county was called as a witness for appellant, and, after stating that he was well acquainted throughout Crawford County, was asked if he knew the general reputation in the community where they resided of Virgil and Ellis Edens, and he aswered that he did, and that their reputation was not good. These boys at that time were living at the home of their mother. Ted Cuzie, a brother of appellant, and who was jointly indicted and tried with appellant, was asked, “How did you happen to go with the officer on this day?” and answered, “The undersheriff at Stillwell sent me these warrants and asked me to get an officer in Crawford County to serve them.”

We think the testimony set out above sufficiently proves the venue of the crime to have been in Crawford County, Arkansas. It is not required that venue be proved beyond a reasonably doubt. It is sufficient to prove it by a preponderance of the evidence; and the testimony set out above meets that requirement. Wilson v. State, 62 Ark. 497; Cranford v. State, 130 Ark. 101; Patrick v. State, 135 Ark. 102.

No error appearing, the judgment is affirmed.