author: Kirby, J.,

text:
    Lybarger v. Lieblong.
    4-2833
    Opinion delivered February 6, 1933.

      George W. Clark and Clark & Clark, for appellant.

      B. W. Robins, for appellee.
   Kirby, J.,

(after stating the facts). The undisputed testimony shows that appellant had for years been a customer and depositor of the bank where his notes and business papers were all kept, the bank looking after this business and making credits upon the notes of payments by the debtors; and also that the cashier, Mr. Har-tón, who afterwards became president of the bank, advised with him about the execution of papers, notes and mortgages securing the money loaned by him, that he prepared this particular mortgage for execution and it was taken out by appellant and the signatures procured at the distant town and returned by mail immediately thereafter to the bank. The president of the bank had prepared the mortgage, evidently knew that it had not been recorded, collected payments on the note secured thereby, and before the note became due the bank took a mortgage conveying the same property to it for further security on a pre-existing debt due it, knowing at the time that the appellant’s mortgage tbereon had not been recorded.

These transactions established the agency of the bank, and it conld not take advantage of the information thereby acquired, and, failing to record this mortgage as their relationship required should be done, the bank could not then take a mortgage on the same property to further secure a pre-existing indebtedness from the mortgagors to it and thus acquire a prior lien upon the lands already mortgaged to appellant for the security of his loan, in effect taking advantage of its own wrong and violating its duty to its principal for its own benefit and to the injury of appellant whose agent it was, and the court’s finding to the contrary is not supported by the preponderance of the testimony, and it erred in holding otherwise. 21 R. C. L. 819-20; Walthour v. Pratt, 173 Ark. 617, 292 S. W. 1017; Rose City Mercantile Co. v. Miller, 171 Ark. 872, 286 S. W. 1010; Moore v. Ziba Bennet Co., 147 Ark. 216, 227 S. W. 753; Bell v. State, 93 Ark. 600, 125 S. W. 1020.

Every one, whether designated agent, trustee, servant or what not, under contract or other legal obligation to represent and act for another in any particular business or line of business or for any valuable purpose must be loyal and faithful to the interests of such other person in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to that of his principal. “This is a rule of common sense and honesty, as well as of law. ’ ’ In 21 R. C. L. 825, it is also said: “He may not use any information that he may have acquired by reason of • his employment, either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interest.” See also Houston Rice Co. v. Reeves, 179 Ark. 700, 17 S. W. (2d) 884; Dudley v. Wilson, 180 Ark. 416, 21 S. W. (2d) 615, where the court quoted with approval from Trice v. Comstock, 121 F. (C. C. A.) 620, 61 L. R. A. 176, the following: “Every agency creates a fiduciary relation, and every agent, however limited Ms authority, is disabled from using any information or advantage he acquires through his agency, either to acquire property or to do any other act which defeats or hinders the efforts of his principal to accomplish the purpose for which the agency was established.” See also 2 C. J. 692.

The fact that the agency is gratuitous does not affect the rule requiring good faith and loyalty on the part of the agent if he has entered upon or assumed the performance of his duties. Walthour v. Pratt, su/pra.

The bank could perform these duties, had been doing so for a long time, and certainly it could be expected to continue, under the circumstances of this case where appellant was a customer and depositor with a substantial account to his credit in the bank, the bank having charge of all his notes and securities and advising him as to the form of such instruments, actually preparing them, and receiving payments on said notes in settlement thereof.

The decree will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion holding appellant’s mortgage constitutes a prior and superior lien to that of the bank on the property and applying the money received from the foreclosure to the payment of appellant’s note accordingly. It is so ordered.


source: Caselaw Access Project

author: McHahey, J.

license: Public Domain

text:
    Massengale v. Massengale.
    4-2842
    Opinion delivered February 6, 1933.

      J. M. SMnn, for appellant.

      W. P. Spears and V. D. Willis, for appellee.
   McHahey, J.

Appellant and appellee were married in April, 1925, but their marital life was of brief duration, being separated in September, 1927, and later the same year, December 20, 1927, being divorced. In the decree of divorce appellant was ordered to pay appellee $15 per month beginning December 20, 1927, and a like sum thereafter on the 20th day of each month, and an attorney’s fee of $15. Appellant failed to comply with the order of the^ court, and failed to make the payments of alimony so ordered to be paid, as well as the fee allowed the attorney.

By deed dated March 9, 1923, appellant conveyed to Laura E. Massengale, his former wife, his homestead, containing 160 acres, and described as the west half of the northeast quarter and east half of the northwest quarter in section 26, in township 17 north, range 21 west, Newton County, together with certain other lands in said county, but which was not delivered by the grantor to the grantee until after the separation above mentioned. Thereafter appellee brought suit against appellant and his then wife, Laura E. (he in the meantime having been married to his former wife), to cancel said deed and to subject same to her alleged lien for accrued alimony. On April 15,1930, decree was entered canceling said deed as prayed, and judgment was rendered in her favor against appellant for accrued alimony in the sum of $450. Said deed was canceled because the court found it was executed for the fraudulent purpose of cheating and defrauding the appellee out of her dower rights and to prevent her from realizing any sums of money for attorney’s fees, alimony and suit money in the divorce action, and from obtaining her portion of said lands in the divorce action. Decree was also entered in appellee’s favor for a one-third interest in the lands described in said deed (the homestead lands included) for her life, and that same he sold, subject to said interest, as might he necessary to pay the judgment rendered. A commissioner was appointed to sell said lands as ordered, sale was had, and appellee became the purchaser. Writ of possession was thereafter issued and delivered to the sheriff. Whereupon appellant filed his amended complaint, setting up the foregoing facts, claiming his homestead to he exempt from said sale, and praying that said writ of possession be quashed in so far as it relates to his homestead. Appellee demurred to the complaint, which was sustained, the complaint dismissed, and this appeal followed.

The learned court erred in so holding.

The statute, § 3511, Crawford & Moses’ Digest, provides that in every final judgment for divorce granted the wife against the husband the court shall make an order that each party shall be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof ; “and the wife so granted a divorce * * * shall be entitled to * * * one-third of the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property, both real and personal, to which such wife is entitled.” The statute provides for sale of the property if same is not susceptible to division without great prejudice to the parties, and a proper division of the proceeds. It is then provided that “such order, judgment or decree shall be a bar to all claim of dower in and to any lands or personalty of the husband then owned or thereafter acquired on the part of said wife divorced by the decree of the court. ’ ’

This court has several times held that a decree or order for future payments of alimony does not constitute a lien upon real estate: that only sums ordered to be paid at once and for which execution may then issue constitute a lien npon lands as other judgments. Kurtz v. Kurtz, 38 Ark. 119; Casteel v. Casteel, 38 Ark. 477; Whitmore v. Brown, 147 Ark. 147, 227 S. W. 34; Warren v. Moore, 162 Ark. 564, 258 S. W. 361. The reason given for the rule denying liens for future alimony is that it would likely embarrass alienation.

At the time appellant delivered the deed to the land in controversy and other land to Laura E. Massengale, there was no judgment for accrued alimony or otherwise against him. The land here involved was his homestead. The decree of divorce granted in December, 1927, awarded alimony of $15 per month to appellee, but failed to designate any real or personal property to which appellee was entitled. It is not necessary to decide whether she acquired any title to the land other than the homestead by her purchase at the commissioner’s sale, but certainly she did not acquire any interest in his homestead. He had previously conveyed it to Laura E. Massengale, at a time when it was free from any lien in appellee’s favor, and, being a homestead, could be conveyed without regard to general judgment creditors.

Appellant made no defense to appellee’s suit to cancel said deed, nor to the sale of his land, but when his possession of his homestead was sought to be interfered with, and he be ousted therefrom, he brought this action. His action was in time as provided by statute and many decisions of this court. Section 5543, Crawford & Moses ’ Digest, reads as follows: “A debtor’s right of homestead shall not be lost or forfeited by his omission to select and claim it as exempt before the sale thereof on execution, nor by his failure to file a description or schedule of the same in the recorder’s or clerk’s office; but he may select and claim his homestead after or before its sale on execution, and may set up his right of homestead when suit is brought against him for possession, and, if the husband neglects or refuses to make such claim, his wife may intervene and set it up; provided, if the debtor does not reside on his homestead, and is the owner of more land than he is entitled to hold as a homestead, he or his wife, as the case may be, shall select the same before sale.” See cases there cited and numerous others since decided. Appellee’s judgment for accrued alimony in the sum of $450 was of no more force than any other judgment, and had no more validity against the homestead than any other judgment. Since appellee had no lien on the homéstead and no decree for any interest therein when her divorce decree was granted, she had no cause to complain of any disposition appellant made of it, whether to his ex-wife or to any other person, and no matter with what intent he conveyed it.

Decree reversed and cause remanded, with directions to overrule the demurrer, and for further proceedings in accordance with this opinion.


author: Butler, J.

text:
    St. Louis-San Francisco Railway Company v. Burns.
    4-2817
    Opinion delivered January 23, 1933.

      E. T. Miller and Warner & Warner, for appellant.

      Partain >& Agee, for appellee.
   Butler, J.

This action was brought by the appellee against the appellant in the circuit court of Crawford County to recover damages for personal injuries alleged to have been caused by an injury to his eye while cutting a cotter pin with a chisel and hammer at the shops of appellant company. There was a verdict and judgment for the amount sued for, from which is this appeal.

Several questions are presented which we find it unnecessary to decide, as it is onr opinion that the first assignment of error urged by the appellant is well taken, and our determination of that question disposes of the case.

It is claimed, and we agree, that there was no actionable negligence shown by the evidence, and the court should have given the peremptory instruction requested by the appellant. In arriving at this conclusion, we do not overlook the rule that the evidence on appeal should be viewed in the light most favorable to the appellee and given the greatest weight to which it is entitled, if by so doing the verdict may be sustained. The appellee, Burns, at the time of the injury was at work in appellant’s shops engaged in repairing- a locomotive with the help of one O. N. Meeks'. These two were the only persons present at the time of the injury and the only witnesses testifying regarding the occurrence. Their testimony is not in conflict except in one particular.

The evidence, which is undisputed, establishes the following facts: Appellee was 29 years old and his position with the appellant was that of a “second-class mechanic”, in which position he had worked for approximately five years. Meeks was his helper at the time of the accident, which occurred during the night, as they were preparing to put truck wheels on the engine. Meeks was working under the direction of the appellee, and was told to place a cotter pin on the rail and hold it there while Bums cut off the end of it. The cotter pin was a round pin about three or three and a half inches long and about three-eighths of an inch in diameter, with a slit down the middle so that when the pin was placed through a hole in the shaft the protruding ends of the pin could be bent back on either side and prevent it.from slipping out. Meeks testified that he was holding the pin with his hand with the end lying on the rail as he had been directed to do; that he did not turn the pin at all, and that it had not moved in any way at the time the appellee struck the final blow cutting off a portion of the pin, which flew out and injured Hm. Meeks stated tliat as tbe blow descended be turned bis bead to one side.

Appellee testified, in substance, tbat be directed tbe pin to be placed and held so tbat tbe slit in it would rest upon tbe rail, and, when it was so placed and beld, be adjusted tbe cutting edge of bis cbisel on tbe pin and fixed it in place by striking- with bis hammer two ligb't blows upon tbe bead of tbe cbisel, thus “setting” it. He tben prepared for tbe blow by wbicb be proposed to sever tbe end of the pin, and stated tbat, as the hammer was falling, “it seemed as if something attracted tbe attention of Meeks, and be turned bis bead, and at the same time tbe pin was turned”; tbat be bad already started down with the blow, and it was impossible to stop it then. At this time lie was standing down in a pit, and, when tbe pin turned as be delivered tbe blow, one side of it was cut off, wbicb flew out, striking him in tbe eye; that tbe cbisel and hammer were his own tools, and tbat be had bad five years’ experience and understood tbe work.

The question presented by this evidence is, does it show tbat Meeks, while helping the appellee, failed to exercise ordinary care? No fixed rule can be stated as to what constitutes “ordinary care,” except tbat it is tbat degree of care wbicb an ordinarily prudent person would exercise under tbe circumstances of tbe case. Care in one case would be negligence in another, and vice versa. Tbat degree of care must be exercised commensurate with tbe danger reasonably to be anticipated. Therefore, ordinary care is a relative term, dependent upon tbe facts and circumstances of each particular case, and tbe degree of care required must always be measured by tbe exigencies of tbe ease under consideration. Meeks v. Graysonia N. & A. R. Co., 168 Ark. 966, 272 S. W. 360; Evans v. B. L. & A. Ry. Co., 147 Ark. 28, 227 S. W. 257; Murphy v. Clayton, 179 Ark. 225, 15 S. W. (2d) 391. The cbisel was set in tbe pin by two preliminary blows, and it is difficult to see bow the pin could turn without turning the chisel also, or indeed bow tbe pin could turn except by some considerable effort, as tbe cbisel was set in it and held in place by Burns as be was striking the bead of it. This would seem more sufficient to bold the pin steady than the bold Meeks bad upon it, since it must be remembered that the pin was round, only three-eighths inch in diameter and not more than three or three and one-half inches long. A considerable portion of the pin must have been resting on the rail*, so that the projecting end which was held by Meeks could not be held very firmly, and without the support of the chisel the pin was likely to turn by a very slight muscular contraction. The fact that Meeks turned his head as the blow descended is not disputed, but that he was not attending to his business, because of his attention being attracted by something else, as suggested by the appellee, is not warranted, for there are no circumstances related which would cause his attention to be attracted elsewhere. It appears to us that the turning of his head was the natural and instinctive act of one in his position, for his head and face could not have been very far from where the impact of the hammer upon the chisel would fall.

There is no contention that Meeks wilfully moved the pin, and the mere fact that he turned his face aside as the blow was descended does not seem to us to be sufficient to show that he was failing to exercise ordinary care. The cutting off of the end of the cotter pin was a simple operation, attendant with no particular danger, although, in the light of common experience, it was to be expected that the end of the pin, when cut by a violent blow, would fly off some appreciable distance. Ordinarily this would be attended by no particular danger, for it is not to be doubted that, if the fragment had struck the person of the appellee anywhere else -but in the eye, no injury would have resulted. That it did strike his eye was a remote mischance which no one contemplated, or else the appellee, who was experienced, would have taken some precautions other than shown to protect his eyes from flying fragments.

In the case of Booths Flynn Co. v. Pearsall, 182 Ark. 854, 33 S. W. (2d) 404, the plaintiff sued for personal injuries sustained while working for the defendant by being struck in the eye by a sliver broken from an iron gas pipe. While the plaintiff was bending over a metal pipe, a fellow-servant working next him threw a block of wood from his shoulder on the pipe, causing a sliver to fly off and strike the plaintiff in the eye. In commenting upon thef testimony, it was. said: ‘ ‘It cannot be said that, even though the sliver which struck the plaintiff in the eye came from the iron pipe, when his fellow-servant threw down the block of wood on it, the master or fellow-servant was guilty of negligence. The work was being done in the ordinary and customary way of doing such work, and there is nothing to show that it was not reasonably safe. * * * It was an unanticipated and unexpected occurrence which no reasonable person would have likely foreseen.” It is a matter of ordinary observation that frequently there is some danger attendant upon the most common and ordinary transactions, but the care required is only to provide against such dangers as ought to be foreseen in the light of the attendant circumstances, and the ideal “prudent person” will therefore not neglect what he can foresee as probable nor divert his attention to the anticipation of events barely possible, but will order his conduct by the measure of what appears likely in the ordinary course of events. Walloch v. Heiden, 180 Ark. 844, 22 S. W. (2d) 1020; Booth & Flynn Co. v. Pearsall, supra; Mo. Pac. Rd. Co. v. Medlock, 183 Ark. 955, 39 S. W. (2d) 518; Mo. Pac. Rd. Co. v. Richardson, 185 Ark. 472, 47 S. W. (2d) 794.

It may be that Meeks could have held the pin more firmly and prevented its slightest movement, had he foreseen the consequences, but were they such as would reasonably be expected to probably flow from a slight turning of the pin? We do not think so. Hence, although he might have exercised greater care, it does not appéar that he should have ordered his conduct by a measure of prudence against every possible risk, but only as to what would ordinarily likely occur.

From the views expressed it follows that the judgment of the trial court must be reversed, and, as the cause appears to have been fully developed, it will be dismissed. It is so ordered.


author: Mbhaeey, J.

text:
    Crowe v. Futrell.
    4-2937
    Opinion delivered February 6, 1933.

      Ingram i& Moher, for petitioner.

      Frank G. Douglas, for respondent.
   Mbhaeey, J.

W. S. Davidson and J. R. Crowe, on May 10, 1930, entered into a contract to exchange lands. The contract provided that Davidson was to convey to Crowe, free of all incumbrances, certain lands in Mississippi County, Arkansas, and Crowe agreed to convey, and did convey, to Davidson certain lands in Prairie County, Arkansas, subject to a government loan in the sum of $7,000, which Davidson assumed and agreed to pay. The contract also provided that Crowe was to retain possession of the Prairie County land for the years of 1930 and 1931, rent free, and further, as a part of the consideration, Crowe agreed to lease the Prairie County land for the year 1932 for the sum of $3,600, and agreed to execute and deliver a note for this amount. There are several other paragraphs in the contract, but it is unnecessary to set them out here.

Crowe did not pay the $3,600, but sometime in October, 1930, Davidson filed his complaint in the chancery court of Mississippi County against J. R. Crowe and Mrs. J. R. Crowe, and, at the time of filing the suit Davidson filed lis pendens notice, setting forth the nature of his suit and his effort to secure lien on the 160 acres of land in Mississippi County, which he had deeded to Crowe.

At the time complaint was filed, and for several years prior thereto, J. R. Crowe and Mrs. J. R. Crowe had been citizens and residents of Stuttgart, in Arkansas County, and summons was issued by the clerk of Mississippi County, directed to the sheriff of Arkansas County.

On November 23, 1932, the petitioners appeared specially and filed a motion to quash the service. In said motion they did not enter their general appearance, hut appeared specially for the purpose of filing the motion to quash the service. In said motion they alleged that they are both citizens and residents of the northern district of Arkansas County, Arkansas, and were citizens and residents of Arkansas County at the time of filing the suit; that they were served by the sheriff in Arkansas County, and that the court acquired no jurisdiction over them by virtue of the service of the summons, and that the court had no jurisdiction of the cause of action, and prayed that the service of summons upon them be quashed, and the cause dismissed.

The court heard the motion, overruled the same, and required the defendants to answer within 20 days. They excepted to the ruling of the court. Petitioners then filed their petition in this court, praying that summons and service thereof be quashed, and that said court be prohibited from proceeding further therein.

It is the contention of the petitioners that the suit filed in Mississippi County by respondent is a suit to collect $3,600 as rent, and is a transitory action, and must be brought in the county in which the defendant or one of several defendants resides or is summoned. They rely on § 1176 of Crawford & Moses’ Digest, which reads as follows: ‘ ‘ Every other action may be brought in any county in which the defendant or one of several defendants resides or is summoned.”

If this were a transitory action and no right to a lien on the land in Mississippi County existed, this section would apply.

Davidson and Crowe agreed to an exchange of lands. Davidson assumed and agreed to pay an indebtedness of $7,000, which was a lien on the lands in Prairie County. Crowe agreed to keep the lands and rent them for the year 1932 for $3,600. The contract, however, expressly states that, as a part of the consideration of this exchange of properties, the party of the second part agrees to rent or lease the land from the party of the first part for the year 1932 for $3,600. In the suit brought in the Mississippi court, the plaintiff alleged that this $3,600 was a part of the consideration, that it had not been paid, and that he was entitled tof a lien on the lands in Mississippi County to secure the payment. If this was a part of the consideration entitling the plaintiff in the case to a lien on the lands in Mississippi County, the court had jurisdiction.

We have held: “It is well settled that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.” Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421.

The chancery court, in the action brought in Mississippi County, had jurisdiction of the subject-matter, and it had jurisdiction to inquire into the fact whether the $3,600 was as alleged in plaintiff’s complaint, a part of the consideration for the Mississippi County land, entitling plaintiff to a lien on said land.

We must take the cause of action as it was alleged in the original complaint. Otherwise, we would try the merits of the controversy for the purpose of determining whether or not we have power to try them.

If the allegations in the complaint are true, the court had jurisdiction, not only of the subject-matter, but of the person of the defendants; and, since the allegations in the complaint depend upon the proof, the chancery court bad a right to pass upon the facts, and the writ of prohibition is denied.

      See Roach v. Henry, ante p. 884 (Rep.).


author: McHaney, J.

text:
    Abston-Wynne & Company v. Wasson.
    4-2850
    Opinion delivered February 6, 1933.

      Maddox S Greer and J. Brinkerhoff, for appellant.

      J. G. Waskom, for appellee.
   McHaney, J.

At the time of his death, Aaron McMul-lin was indebted to the Bank of Tyronza on nine promissory notes in the sum of $15,542 and accrued interest. Said bank was or became insolvent and was taken over by the State Bank Commissioner for liquidation. The notes had been hypothecated with a Memphis bank to secure a loan from it. On June 10,1931, the Commissioner caused a claim to be prepared and presented to the executors of the estate of Aaron McMullin with copies of said notes attached to the claim and exhibited to the executors who allowed the claim. This claim, as- allowed by the executors, was filed in the probate court on July 24,1931, and in December following, the claim was presented to, allowed and properly classified by the probate court. Appellants, who claim to be creditors and devisees under the will of Aaron McMullin, objected to the allowance of the claim in the probate court on several grounds, the principal one being that the original notes were not exhibited to the executors in compliance with § 100, Crawford & Moses’ Digest. From the order allowing the claim in the probate court, appellants appealed to the circuit court, where the appeal was dismissed on the grounds. (1) that appellants made no showing that they or either of them had any right to he made parties to the proceeding in the probate conrt, or to appeal from the judgment of such conrt; and (2)-' that the executors had knowledge of the existence of the original notes, although copies only were exhibited, and the allowance of the claim was based on such knowledge.

Assuming for the purpose of this opinion that appellants were proper parties and had the right to appeal, we are of the opinion that the judgment of the court in dismissing the appeal, which amounts to an affirmance of the judgment, is correct.

The undisputed proof is that the executors were familiar with this indebtedness, knew of the existence of the notes, that they had not been paid, and that it was a valid subsisting claim against the estate. Whether we say the statute was substantially complied with, or that the executors waived the requirement of ‘ exhibiting the original,” the result would be the same.

This court has at least three times held that the administrator may waive the copy required by the statute. Borden v. Fowler, 14 Ark. 474; Grimes v. Bush, 16 Ark. 647; Grimes v. Booth, 19 Ark. 224. Section 100 of the statute reads as follows: “Any person may exhibit his claim against any estate as follows: If the demand be founded on a judgment, note or written contract, by delivering to the executor or administrator a copy of such instrument, with the assignment and credits thereon, if any, exhibiting the original, and if the demand be founded on an account, by delivering a copy thereof, setting forth each item distinctly and the credits thereon, if any. ’ ’

If the executor or administrator may waive the copy required by the statute, we think it necessarily follows that he may waive the exhibiting of the original. It is true that we held in Friend v. Patterson, 150 Ark. 577, 234 S. W. 978, that the provision of the statute requiring the original to be exhibited is mandatory, but in that case the administrator, Friend, contested the allowance of the claim on the ground that the original written instrument was not exhibited. The court there stated the reason for the rule and the purpose of the statute as follows: “The statute conserves a wise purpose, inasmuch as it was intended to prevent possible mistakes, frauds, or forgeries, by giving to the executor or administrator the opportunity to examine the original instrument which is the basis of the claim before approving or rejecting it.” The court, in the cases above cited, gave a similar reason for the provision of the statute relating to a copy. In the case of Friend v. Patterson, there was no evidence of waiver, and no substantial compliance. Here, however, when the claim was presented to the executors, they promptly allowed it, knowing of its justice, and made no demand for the original notes.

There was substantial evidence to support the findings of the circuit court, and its judgment is affirmed.


text:
    Clark v. Bowen.
    4-2844
    Opinion delivered February 6, 1933.

      O. A. Feather ston, for appellant.
    P. L. Smith, for appellee.
   Butler, J.

This is an appeal from the action of the trial court vacating’ a judgment of that court made and entered on the 15th day of September, 1930, which was appealed to this court and affirmed.

In the court below the appellant filed a motion to dismiss the petition on the ground that the subject-matter involved had been adjudicated, and the plea of res judicata was interposed in said motion. This motion was overruled, and issue was joined. The court, having heard the evidence adduced, vacated its former judgment, and the appellant here urges the same grounds for reversal as those contained in his motion to dismiss.

The judgment sought to be vacated has been before this court on appeal and here affirmed. The appellant invokes the rule that matters involved and litigated in a former suit, or which might have been litigated therein, are res judicatae, and cites a number of our cases in support of the rule. It is our opinion that the rule and the decisions have no application here, for the reason that this is a special statutory proceeding authorized by the first subdivision of § 6290 of Crawford & Moses’ Digest and prosecuted under § 1316 of the Digest, which section provides that, where grounds for new trial are discovered after the term at which the verdict was rendered, an application for vacating the judgment may be made .by petition filed with the clerk on which a summons shall issue as on other complaints requiring the adverse party to appear and answer. By that section it is also provided that the case shall be summarily decided by the court upon evidence, either in form of depositions or the testimony of witnesses examined in the court.

It was alleged, and the court found, that the plaintiff (appellee) had discovered new evidence material to the issue in the former suit, and that, if the evidence was true, it constituted a valid defense. The court thereupon granted the prayer of the petition and vacated and set aside the .judgment and set down the case for trial. Subsequently, the case was again tried, and the verdict of the jury and judgment of the court were adverse to the appellant.

There appears to have been sufficient testimony to justify the action of the court in vacating the judgment and to sustain the verdict of the jury in the subsequent trial. In the matter of vacating judgments on the ground of newly-discovered evidence, a wide discretion is given the trial court, and its judgment should not be disturbed unless it is manifest that there has been an arbitrary abuse of that discretion. The right to have a judgment vacated on the ground of newly-discovered evidence, or for any other of the grounds mentioned in § 6290, supra, is not affected by an appeal to this court or a reversal or affirmance. It is an independent action to be instituted and conducted as in ordinary actions at law, and is not affected by whatever might have been done with respect to the judgment sought to be vacated.

In the case of Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1104, there had been a trial and judgment in the lower court, from which Bilby had appealed to this court, in which court the judgment of the trial court was affirmed. Afterwards, proceeding under the statute was instituted to vacate the judgment. It was there said: “It is next insisted by counsel for appellant that, Bilby having appealed from the judgment of the circuit court and the judgment having been affirmed, he was precluded from instituting proceedings to vacate it. This objection is not tenable. The appeal was merely a continuation of the suit below. An appeal does not have the effect of vacating the judgment of the court below. Even where a supersedeas is granted, an appeal does not have the effect of vacating a judgment, but only stays proceedings thereunder. Miller v. Nuckolls, 76 Ark. 485 [89 S. W. 88, 113 Am. St. Rep. 101, 6 Am. Cas. 513]. If supersedeas is granted, the judgment of the court below is suspended pending the appeal; and, if the cause is reversed, the rights of the parties stand as though, no action had ever taken place in the court below. Harrison v. Trader, 29 Ark. 85. On the other hand, if the judgment is affirmed, the rights of the parties will stand as if no appeal had been taken. Therefore we do not see how the rights of a party to have a judgment set aside for the grounds set out in § 4431 of Kirby’s Digest can be affected by an appeal taken from the judgment. The appeal and the proceedings to set aside the judgment for the grounds mentioned in § 4431, su-pra, are wholly separate and independent proceedings, and are intended to effectuate different purposes. Therefore it is difficult to perceive how the use of the one remedy will preclude the right to exercise the other. ’ ’

From the record before us, we are of the opinion that the action of the trial court in vacating the judgment was not an arbitrary exercise of his power, and, since on a new trial there was substantial evidence to warrant the verdict, the judgment will be affirmed.


author: Smith, J.

text:
    Dalton v. Huskey.
    4-2841
    Opinion delivered February 13, 1933.

      Bush & Bush and MctJRae S Tompkins, for appellant.

      William F. Denman, for appellee.
   Smith, J.

Appellant was engaged in constructing a concrete highway near Prescott, and was operating under the trade-name of D. H. Dalton Construction Company— not incorporated. A concrete, mixer was placed on the highway, and a number of trucks hauled sand, cement and gravel to it. At a distance of about 150 feet from tbe mixer there was what was called a “turn-around,” at which point the trucks were driven on to the highway, which was 18 feet wide, and were then backed down to the mixer. About half way between the mixer and the turn-around, at a curve in the road, the plaintiff was engaged in lining up the forms. He described his work as follows: “My duties were as form liner. The 'forms were on each side, about 18 feet across, and they are first pinned down in a straight line. It was my job to go back and straighten them out and make them cross-section straight, and make them 18 feet in between forms, and then level them up on top, and the forms are 10 feet long and 9 inches high. ’ ’

To do this work it was necessary for plaintiff to lie down so as to sight along the forms and to signal to his helpers to raise or lower the forms in order to level them. There was a constant stream of trucks backing down to the mixer or going back to the turn-around. While plaintiff was lying down in the performance of his duties, as stated, a truck was backed from the turn-around upon him, inflicting the serious injuries, to compensate which this suit was brought.

There was a verdict and .judgment for the plaintiff, and for its reversal it is insisted, among* other assignments of error, that the testimony is not sufficient to sustain the verdict. We do not pass upon this question, for the reason that the testimony does not appear to have been properly and fully developed upon this controlling question of fact. Indeed, the judgment must be reversed for this failure.

The defendant offered several witnesses by whom he proposed to prove that Deaton, the driver who ran over appellee, was a good, capable and efficient driver, but the court only permitted these witnesses to answer that Deaton drove the truck in the same manner that the other drivers customarily drove their trucks.

We think the court should have permitted the defendant to prove that Deaton was careful and efficient. In the case of Missouri Pacific R. Co. v. Riley, 185 Ark. 699, 49 S. W. (2d) 397, a headnote reads as follows: “On the issue of contributory negligence, evidence of witnesses acquainted with the skill and experience of plaintiff automobile drivers that they were careful and competent drivers, held admissible.”

In the instant case the issue is not whether Deaton, the truck driver, was negligent, for, being plaintiff’s fellow-servant, no liability would arise from that fact. The plaintiff, to establish his case, must prove something additional, and that is, that the master knew, or, in the exercise of ordinary care, should have known, that Dea-ton, the driver, was inexperienced or incompetent, or so reckless that a careful man would not have employed him as a truck driver. In other words, that it was negligence to have employed such a driver.

It was said, in the case of Duff v. Ayres, 156 Ark. 17, 246 S. W. 508, that the common-law rule as to responsibility for the negligent acts of fellow-servants has not been changed by statute, so far as concerns individuals who are employers of servants, but the master is liable for the act of an unskillful fellow-servant where he has been negligent in the employment, on the theory that the negligence in employing such a servant is the proximate cause of the injury. Certainly, upon such an issue it was competent to prove that the driver was efficient and careful.

It is insisted that this error of the court was invited by the defendant, in that the court excluded testimony offered by the plaintiff on this issue upon the motion of the defendant. In developing his case in chief, the plaintiff called Mr. Blakely, the foreman of the truck drivers, who testified that he did not think Deaton had had any experience in driving such a truck as the one which inflicted the injury, and that he knew he had not been using such a truck. The witness was then asked: “Did you think it would be dangerous to turn that boy loose?” An objection was sustained to the question, and the court also excluded the following question and answer: “Q. Ton then say he was too small to look over and properly operate that truck? A. Yes, sir.” Other questions and answers to which objections were sustained appeared to be directed to the alleged negligence of Deaton at the time of the injury.

The excluded testimony was to the effect that Deaton lacked only a few days of being 19 years old, and had been driving trucks for from '2% to 3y2 years to the knowledge of the witnesses, and that they regarded him as a capable and efficient driver. The father of Deaton would have testified that his son had been driving trucks since he was 12 years old, and had driven many different kinds of trucks.

The defendant should have been permitted to offer testimony tending to show that he was not guilty of negligence in giving young Deaton employment as a truck driver, and, for the error in excluding this testimony, the judgment must be reversed, and the cause will be remanded for a new trial;


author: Mehaffy, J.

text:
    Sydeman Brothers, Inc., v. Whitlow.
    4-2852
    Opinion delivered February 6, 1933.

      I. J. Friedman and Cravens i& Cravens, for appellant.

      Hill, Fitslvugh '& Briszolara, for appellee.
   Mehaffy, J.

On April 30, 1930, the appellee and appellant entered into a written agreement whereby the appellee let, rented and leased to the appellant certain property in the city of Fort Smith, Arkansas, for the term of five years, commencing on June 1, 1930, at a yearly rental of $2,400, payable monthly in advance.

One clause in the lease reads as follows:

“That said lessee shall keep the premises in good repair, reasonable use, wear and tear and damage by the elements excepted, except that the lessee shall not be required to make repairs to the roof or structural repairs and the lessor agrees to keep the roof and the structural parts of the building in good repair.”

A later clause in said lease reads as follows:

“In case the premises are destroyed by fire, or so damaged by fire or any unavoidable casualty as to make them uninhabitable or unfit for use and occupation, the lessor agrees to repair such damage as promptly as possible, and the rent shall be abated until the completion of such repairs. In the event that the said premises are completely destroyed and the lessor decides not to rebuild, then this lease shall terminate and come to an end. ”

The above are the only clauses in the lease about which there is any controversy.

The appellant conducted a retail clothing business in said building, and the building was damaged by fire on September 10, 1931. Immediately after the fire, the lessor employed the contractors to restore said building. The contractors made a survey of the general damage to the building, and made notes of the damages, prepared an estimate of loss and damage caused by the fire, water and smoke. The contractors were ready to go to work the day after the fire.

The manager for the appellant, Mr. Frazier, told the contractor that Mr. Schachter would be there in a few days; that he was the road manager, and that the goods could not be removed until Mr. Schachter came. When Mr. Schachter came, he insisted that no repairs be made until they got their goods out of the building. He asked the contractor not to do anything until after everything had been moved out.

The insurance adjuster undertook to adjust the loss. He directed the contractor to make separate estimates for the papering, painting and all fixtures, and all interior work; that the appellant had that covered by insurance, and would collect for it, and he should make separate estimates, which he did, and the appellant collected for the damage to these items.

The appellant concedes that, if the appellant was to make repairs, its failure to do so and to continue to pay rent would constitute a breach of the contract, and justify the judgment against it. But if it was the duty of the appellee to make these repairs, then her failure to do so constituted a breach of the contract.

The question for onr determination therefore is, whether the lessor or lessee was to make repairs on the items upon which appellant carried insurance.

The two clauses of the contract or lease must he construed together. There is no conflict between the two clauses; and, if we had nothing hut the two clauses and had to determine from them alone, the appellee would be required under them to repair all the damage done by the fire.

A contract of lease is construed like any other contract, and the rule is, in the interpretation of contracts, to ascertain the intention of the parties, and give effect to that intention, where this can be done consistently with legal principles. 6 R. C. L. 835, 13 C. J. 520; Coca-Cola Bottling Co. of Ark. v. Coca-Cola Bottling Co., 183 Ark. 288, 35 S. W. (2d) 579.

In ascertaining the intention of the parties, this court, in the last case cited, quoted with approval the following:

“It is a well-established principle of law that, in the interpretation or construction of contracts, the construction the parties themselves have placed on the contract is entitled to great weight and will generally be adopted by the courts in giving effect to its provisions.”

It is to be assumed that parties to a contract know best what was meant by its terms, and are the least liable to be mistaken about its intentions. Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. (2d) 673; Gauss Sons v. Orr & Lindsey, 46 Ark. 129; Keopple v. Nat. Wagonstock Co., 104 Ark. 466, 149 S. W. 75; Craig v. Golden Rule Life Insurance Co., 184 Ark. 48, 41 S. W. (2d) 769.

■Courts may acquaint themselves with persons and circumstances that are subjects of the statement in a written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and judge of the meaning of the words and clauses used by the parties, and the conduct of the parties should be considered in determining what they meant by the contract. 13 C. J. 546.

The appellant secured a policy of insurance protecting it from loss or damage by fire, on certain items of the interior. It suggested that separate estimates be made, one for the landlord, including the items that she was to repair, and one for the tenant, on the items insured, for its benefit and in its name.

We therefore think that the parties themselves, and especially the appellant, understood the contract to mean, and construed it to mean, that it was to repair the damage to these items. We are therefore of opinion that, when the two clauses of the contract are considered together, and the conduct of the parties and all the attendant circumstances are considered, it was the intention of the parties that the appellant should repair the items insured in its name for its benefit.

It also appears from the evidence that the landlord would have repaired the building immediately, but for the objection of the appellant. The contractor offered to go to work at once, and to give the appellant a bond to protect its goods and its interests while repairs were being made, but the> appellant declined to permit repairs to be made until it had disposed of its goods.

About the time the repairs were completed, the appellant, after disposing of all of its property in Arkansas, and after requiring the appellee to spend considerable money purchasing linoleum for the floor, wrote to the Secretary of State .that it had disposed of its last store in Arkansas, and wished to retire from business in the State of Arkansas. When this suit was brought, it filed a petition in this court for a writ of prohibition, alleging that about four months before the appellee instituted her suit, it, a foreign corporation, had withdrawn by discontinuing its business in the State of Arkansas, and by notifying the Secretary of State of such cessation of business, and its retirement from the State, alleging that, by reason of these facts the chancery court acquired no jurisdiction by service of summons upon the Secretary of State.

We do not think that the contract as construed by the parties, shows that the repairs to the interior were to be made by the appellee, but we think appellant is estopped by its conduct from claiming that the appellee breached the contract.

We think it evident from the proof that the appellant did not intend to occupy the building, nor did it intend to sublet it.

Whether the appellant had breached the contract, and whether, under the contract, the appellant was to make the interior repairs, were questions of fact, and the chancellor’s finding will not be disturbed unless we can say it is against the preponderance of the evidence; and, in determining these questions the chancellor had a right, not only to consider the testimony of the witnesses, but the conduct of the parties and all the attendant circumstances.

The conclusion we have reached as to the interpretation of the lease makes it unnecessary to decide the other questions discussed by counsel.

We find no error, and the decree is affirmed.


text:
    Barnes v. Hope Basket Company.
    4-2856
    Opinion delivered February 13, 1933.

      E. F. McFaddin, .for appellant.

      McRae <& Tomphins, for appellee.
   Butler, J.

The Hope Basket Company, appellee, is a corporation, and was engaged on the day of the injury suffered by the appellant, Clarence J. Barnes, in loading its products into railroad cars for shipment. As a car was loaded, it was moved .forward by the employees of the company, and an empty car put in place to he loaded. The loaded cars were moved by Barnes and other employees- by means of crowbars. The employees would get at one end of the boxcar and place the crowbars under the rear wheels and raise them up. This would cause the car to move forward, and was called “pinching” the cars. In moving one of the cars, Barnes was using a crowbar under one of the rear wheels and other employees were assisting in the operation. It was discovered that the brake was set on this car. Some one called attention to this fact, and one of the employees started to crawl onto the car for the purpose of releasing it. Before he had g'otten on the car however, a boy not in the employ of the company and who had been forbidden to meddle or trespass on the property of the company, suddenly appeared and voluntarily climbed up and reached the brake. The brake was kept in place by an appliance called a ratchet, to release which another appliance, called the brake wheel, would be turned. The boy did not seem to have enough strength to turn the wheel without the use of a lever. While he was attempting to move the wheel, some one from the ground below handed him a canthook handle which he inserted in the spokes of the wheel and thus was. able to move it. When he did this, the ratchet was released, causing the wheel to move suddenly with sufficient violence to wrench the canthook from the boy’s grasp, propelling the same downward in such manner that it struck the appellant Barnes on the head, causing the injury and damage for which he brought suit.

The negligence alleged in the complaint was that the Hope Basket Company failed to provide a safe place in which Barnes might do this work, and “that the foreman of the crew gave the order to trip the brakes, knowing Barnes’ position and knowing that there was in the wheel at the time a canthook plainly visible to the foreman, if he had looked, and not visible to Barnes on account of his position.” The answer denied the allegations of negligence and alleged that the injury was not the result of any negligent act of an employee, but of a boy fifteen years of age not in the employ of the company who, without having been directed by any one in authority, and of his own volition, hurriedly climbed to the top of the boxcar, and, using a stick as a lever, performed the act which occasioned the injury to the appellant. On the trial of the case there was but little conflict in the testimony, which established the facts heretofore stated. After a number of witnesses had testified, the court asked if all the testimony relative to liability on the part of the defendant had been introduced, and, on being advised that it had, indicated that the court was of the opinion that the evidence failed to establish a cause of action against the defendant and declined to hear any testimony regarding the extent of the injury or the amount of damage. Thereupon the defendant moved for a directed verdict. Counsel for plaintiff objected on several grounds, and asked that he be given the right to amend the complaint to conform to the proof, and asked the following question: “Will the court let the record show that the request of the plaintiff to amend the complaint to comply with the evidence is granted?” The court answered, “Yes, sir.’’ Counsel then continued, saying: “And the plaintiff excepts to the ruling of the court at this time in granting a peremptory instruction for the defendant for the reasons herein stated and generally. ’ ’

The jury returned a verdict for the defendant at the direction of the court, from which is this appeal.

The record before us shows that the trial judge granted the request that the complaint he amended to conform to the proof, but clearly indicates that in his opinion in any view of the evidence no negligence attributable to the defendant was shown, and, without waiting for any amendment to be offered or made, instructed a verdict for the defendant. It is suggested by the ap-pellee that the appellant’s failure to amend the complaint precludes him from now complaining, but it is manifest that the amendment would have been unavailing in the trial court and a vain thing to suggest what the amendment would be as the court had all the evidence in mind. It is always within the sound discretion of the court to permit a complaint to be amended to conform to the proof; and where the allegations in the complaint are insufficient, it is proper at the conclusion of the evidence to .treat the complaint as amended to conform to the proof, where there are no objections to the introduction of the evidence and no claim of surprise is made. K. C. Sou. Ry. Co. v. Rogers, 146 Ark. 232, 225 S. W. 640; L. & C. Co v Sanders, 173 Ark. 362, 292 S. W. 657; Thomas v. Spires, 180 Ark. 671, 22 S. W. (2d) 553.

It must have been the view of the court that, in any view of the testimony adduced, there was no liability, and, if this be true and all reasonable minds would have drawn the same conclusion from the facts in evidence, the action of the court was proper. C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15. But a case should not be withdrawn from the jury or a peremptory instruction given unless the conclusion follows as a matter of law that no recover can be had upon any view of the facts which the evidence tends to establish. S. W. Bell Tel. Co. v. Shelby, 167 Ark. 488, 268 S. W. 860; Gladys Belle Oil Co. v. McGee, 172 Ark. 1176, 291 S. W. 72. It is apparent that the boy who released the brake did so of his own motion and without the suggestion from any one, and that he was a mere trespasser for whose sole act the company was not responsible. Neither can we see any negligent act on the part of the foreman, and the complaint made that his absenting himself from the work and his failure to supervise it was the evidence of lack of ordinary care for the safety of the employees who were doing the work. He was nearby preparing a boxcar for loading, and the particular operation in which the men were engaged was a simple one; they were experienced in this and required no supervision. The ap-pellee insists that there is no testimony to the effect that any of the employees at the boxcar had authority to employ the boy or that under the circumstances the boy could be deemed to have been an emergency servant. To this we agree. If there is any negligence for which the company is responsible, it was no act of the boy alone, but there is evidence that he was seen by the employees as he was engaged in the attempt to turn the brake wheel, that none of them forbade him to do this act, but that some one from the ground below made it possible for him to perform the act in a negligent way by handing him a canthook handle to aid him in his efforts. If this was done by one of the employees of the company engaged in the work of the company, this would present a question for the jury to say whether or not under all the circumstances this was negligence, concurring with the act of the unauthorized volunteer, which was the proximate cause of the injury.

This being our view, we are of the opinion that the court erred in giving the peremptory instruction to find for the defendant. The case will therefore be reversed, and the cause remanded for such further proceedings as the appellant may be advised in accordance with the law and not inconsistent with this opinion.

McHaNey/J., dissents.


text:
    Taylor v. Calaway.
    4-2819
    Opinion delivered January 30, 1933.

      S. F. Morton and Gaughan, Sifford, Godwin $ Gaughan, for appellant.

      B. H. Peace and II. G. Wade, for appellees.
   Smith, J.

Suit was brought by the Farmers’ & Merchants’ Bank of Bearden, Arkansas, against M. E. Cala-way, who is the widow of J. C. Calaway, deceased, and certain persons as garnishees, and the following facts were alleged as constituting its cause of action.

The bank recovered a judgment on October '23,1930, for $1,045.28 against M. E. Calaway and one E. C. Hawkins, upon which .judgment an execution was issued and returned unsatisfied. Mrs. Calaway had indorsed a note for Hawkins at the bank.

The Stout Lumber Company made a contract to sell certain lands in Calhoun County, which was evidenced by its bond for title to J. C. Calaway, and another to C. L. Witherington, which last-named contract was assigned by Witherington to J. C. Calaway. The payments contracted for were finally made, but before their completion Calaway contracted to sell the lands to William and Emma Boyett for the sum of $2,600, evidenced by ten notes each for $260, payable one note each year, and the last maturing November 1,1934. Calaway gave the Boy-etts a bond for title, wbicb obligated him to convey tbe lands to them upon tbe completion of tbe payments. Tbe Boyetts paid tbe first five of these notes to mature. Mrs. Calaway, tbe wife of J. C. Calaway, did not join ber bus-band in tbe execution of this contract to convey to tbe Boyetts. Tbe complaint alleged that Mrs. Calaway bad acquired tbe title of ber husband to these lands by a deed to ber from him, or, if not so, that she bad acquired tbe equitable title by the indorsement and delivery to ber of the unpaid purchase money notes executed by the Boyetts.

Attached to tbe complaint were certain interrogatories which it was prayed that Mrs. Calaway and the Boyetts be required to answer under oath, showing the interest now owned by Mrs. Calaway in tbe lands and the balance of purchase money still due on tbe notes.

It was prayed that the lumber company be required to execute deeds to Mrs. Calaway, and that the Boyetts be required to pay into court tbe balance of purchase money due by them, or that their interest in the lands be sold, to tbe end, that tbe plaintiff bank have satisfaction of its judgment.

The contract of sale between J. C. Calaway and tbe Boyetts provides that, if they shall fail to make tbe payments, or any of them, within thirty days after maturity, tbe contract should then and in that event be considered and declared a rental contract, “and the said William Boyett and Emma Boyett shall pay the said J. C. Cala-way, or to his heirs and assigns, the sum of two hundred dollars per year as rent on said lands, and the said J. C. Calaway shall have a lien on any and all crops raised on said lands for his said rent; ’ but that, if the payments were made as contracted, he, Calaway, would convey, or cause to be conveyed, to the Boyetts the said lands with warranty of title.

A separate answer was filed by Mrs. Calaway, in which she admitted that the plaintiff bank had a judgment against her which she had not paid. She alleged that, if her husband had executed a bond for title to 'the Boyetts, she was not a party thereto; “that she did not sign away any of her rights in and to said lands, and she specifically claims her dower rights in and to said lands as the widow of the said J. C. Calaway, deceased.” She alleged that default had been made in the payment of the notes to her husband’s order, and that the bond for title to the Boyetts had forfeited on that account, and that the lands now belong to her children, the heirs at law of her husband, subject to her dower. She therefore prayed that the complaint against her be dismissed, and that the lumber company he required to execute deeds in accordance with its bonds for title, and that dower be assigned to her.

An intervention was filed in the case by Ella String-fellow and Docia Bailey, who alleged that they were the only heirs at law of J. C. Calaway, which pleading recited the execution of the bonds for title to J. C. Calaway and C. L. Witherington, and the assignment to Calaway of the bond for title by Witherington, and alleged the payment in full of the purchase money due under both contracts. This pleading also alleged the execution of the contract by Calaway to convey the lands to the Boyetts, and that instrument was made an exhibit to their intervention. Interveners alleged the default of the Boyetts in making their payments, and prayed that the lumber company be required to execute deeds to them as the heirs at law of their father, subject to the dower right of their mother.

The Boyetts filed an answer to the plaintiff’s interrogatories in which they denied that they were indebted to Mrs. Calaway in any sum. They also filed a separate answer in which they alleged that they had paid $1,300 of the $2,600 purchase money which they had agreed to pay, and that four of these payments had been made to Mrs. Calaway after the death of her husband, and they therefore alleged that Mrs. Calaway was not entitled to dower in said lands. They alleged that they were at all times ready, willing and able to pay the balance of purchase money, but did not make the payments because the notes were in tlie possession of the plaintiff bank and the title to the lands was in dispute, and that Mrs. Calaway had refused to join in the execution of a deed to them. They therefore prayed the return to them of the $1,300 which they had paid.

The lumber company filed an answer, in which it admitted the receipt in full of the purchase money due it, and prayed the direction of the court as to the execution of the deeds, which it offered to make.

The plaintiff bank filed an amendment to its complaint, in which it admitted that it had possession of the five notes remaining unpaid by the Boyetts, but alleged that the possession thereof had been delivered to it by Mrs. Calaway for safekeeping. It was prayed that any proceeds of the notes be impounded and applied to the bank’s judgment.

Mrs. Calaway filed an answer to the amended complaint of the bank, in which she admitted delivering to the bank five notes of the Boyetts payable to the order of her husband, but disclaimed any interest in them.

The interveners, Ella String-fellow and Docia Bailey, filed an answer to the bank’s amended complaint, in which they alleged that any unpaid notes of the Boyetts are a part of the estate of J. C. Calaway, deceased, and are not subject to the debts of his widow.

Mrs. Calaway filed a response to the intervention of her daughters and to the amended and substituted answer of the Boyetts. In this pleading she alleged that the Boy-etts were at all times aware of her interest in the lands, and denied their offer to pay the balance of purchase money, and denied their right to recover payments made, but alleged that, under the contract which they failed to perform, the payments made should be treated as rent. She denied that she had received any payment from the Boyetts. She prayed that, if the Boyetts be allowed to recover payments made, they be charged with the rent upon the lands which they had contracted to buy.

The Boyetts filed an amended and substituted answer and cross-complaint, reciting many of the facts hereinabove stated and alleging that, inasmuch as Mrs. Calaway had not signed the contract to them, and refused now to execute a deed conveying her interest, their contract was rescinded, and they prayed judgment for the payments of purchase money made, and it was prayed that this sum be decreed to be ‘‘prior and paramount, in point of equity, to the rights of the plaintiff or to those of the widow and heirs of J. C. Calaway,” and, in the alternative, it was prayed that, if the right of rescission is denied, the court decree them a title free from the dower claim of Mrs. Calaway.

Upon the issues raised by the pleadings, much testimony was taken in support of the respective allegations. The plaintiff bank became insolvent, and was taken over for liquidation by the State Bank Commissioner, who was substituted as party plaintiff.

The decree in the cause recites an extended finding of facts upon the testimony as follows: The lumber company has been paid the purchase money due it. Mrs. Cala-way never at any time conveyed or contracted to convey, her right of dower, and never received a deed to the land- from her husband. This was the principal question of fact in the case. It appears that Calaway, in his lifetime, executed a deed to his wife for all the lands. But the deed was never recorded, and the court found that it was never delivered. This deed was dated September 27, 1926, and Mr. Calaway died on January 23, 1927, but the deed was found in 1929 in a different bank at Bearden with other papers belonging to Mr. Calaway, where he kept a number of important papers, among these being a fire insurance policy. The insured property was destroyed by fire, and in searching for the policy the deed was found. Mrs. Calaway testified that she knew nothing of the execution of the deed, and that it had never been in her possession.

The law as to the delivery of a deed is that, in order to constitute a delivery of a deed, it must be the intention of the grantor to pass the title immediately to the land conveyed, and that the grantor shall lose dominion over the deed. Davis v. Davis, 142 Ark. 311, 218 S. W. 827. There is some conflict in the testimony, hut we think the finding of the chancellor that Mr. Calaway had not delivered the deed to his wife, but had retained dominion over it, is not contrary to the ■ preponderance of the evidence.

It was also contended by the plaintiff bank that the purchase money notes which the Boyetts had not paid had been assigned to Mrs. Calaway by her husband, but the decree indicates that the court did not sustain that contention. The notes executed by the Boyetts appear to •have been made payable to J. C. Calaway or Ella Cala-way. These unpaid notes are copied into the transcript and read as stated, but it is stated in the briefs that the originals of these notes, which are not before us, show that the name of Mrs. Calaway was added by interlineation, was written in a different handwriting and with different ink. However this may be, Mrs. Calaway testified that 'the notes were never in her possession, and were never claimed by her. Note No. 6, executed by the Boy-etts, was not indorsed, but the name of J. C. Calaway was written on the back of notes Nos. 7, 8 and 9, and on the back of note No. 10 appears the following indorsement: “For value received, I hereby transfer and assign note to Mrs. M. E. Calaway. (Signed) J. C. Calaway.” No explanation appears as to the time when nor the purpose for which Mr. Calaway indorsed notes Nos. 7, 8 and 9. It may have been when using them as collateral.

The fact remains, however, that these notes were given for purchase money of lands the title to which, under the findings of the court, has failed, and the notes are without consideration and are therefore void, and we are not therefore required to pass upon the conflicting testimony as to whether Mrs. Calaway ever owned any interest in them during the lifetime of her husband. She testified that she had never at any time been in possession of any of these notes, and had never claimed, any interest in them. Mrs. Calaway has no dower interest in these notes which can be subjected to the satisfaction of the bank’s .judgment, for the reason that the notes are void as being without consideration.

As Mrs. Calaway declined to convey her dower interest in the lands, for the reason that she had never contracted to do so, the Boyetts conld not be required to accept a deed which did not convey that interest, and the Boyetts have not appealed from the decree.

The court found that twenty acres of land, which constituted a part of Mr. Calaway’s homestead, had been conveyed by him and his wife to their children, and that they had the right to make this conveyance “free and clear of all rights of creditors, ’ ’ and this part of the decree does not appear to be challenged.

Having found that the contract to convey to the Boy-etts could not be performed, the court gave them judgment for the payments made by them, and charged them with the rental value of the lands.

It is argued that the Boyetts were not charged enough rent, and that judgment was rendered in their1 favor for an excessive sum, and that, if judgment was rendered against them, and not for them, Mrs. Calaway’s interest in this judgment would be subject to the judgment of the bank.

The decree of the court declared the sum due the Boyetts was a lien upon the lands, “which is superior and paramount to all rights and interests of all parties to this suit except the dower interest of Mrs. Calaway.” The bank therefore insists that it is vitally interested in the amount of a judgment to be rendered in favor of the Boyetts, and that the judgment rendered in their favor was excessive. The testimony as to the amount for which the Boyetts should have judgment is undisputed, and may be arrived at by simple calculation. The testimony is in conflict, however, as to the amount for which they should be charged for rent, and, without reviewing this testimony, we announce our conclusion to be that the finding of the chancellor upon this subject does not appear to be contrary to the preponderance of the evidence.

It was decreed that the heirs of J. C. Calaway, his daughters, Ella String-fellow and Docia Bailey, have title to the lands, subject to the dower right of their mother and to the lien of the Boyetts, and- neither the Boyetts nor the heirs have appealed.

The court decreed that an attachment which had issued should be discharged except as to the dower interest of Mrs. Calaway. As to this interest, the attachment was sustained, and it was ordered that that interest be sold in the manner there provided.

Upon the whole case we are of opinion that the findings of fact made by the chancellor are not contrary to the preponderance of the evidence, and that the decree accords with the principles of equity. It is therefore affirmed.


text:
    Carter v. Finch.
    4-2792
    Opinion delivered January 30, 1933.

      E. B. Doionie, for appellant.'

      W. E. Rhea and Gasort & Gronkrite, for appellee.
   Smith, J.

The St.. Louis Joint Stock Land Bank, hereinafter referred to as the hank, made a loan upon a farm in Pulaski County of $25,000, which was secured by a deed of trust describing the farm and reciting1 that there were 620.41 acres of land, more or less. The borrower made default in meeting- his payments, and, to save the expense and delay of foreclosure proceedings, executed a deed to one W. L. Bacon under the direction of the bank. The fact appears without serious question that Bacon was only a nominal purchaser and paid nothing for his deed. The obvious purpose was for the books of the bank to show the ownership of the loan, rather than of the land. On July 29, 1927, Bacon conveyed the land to Mrs. Mary S. Finch, the wife of W. P. Finch, an employee of the bank. Mrs. Finch paid nothing for the land, although she apparently assumed the payment of the mortgage debt. This was also a mere bookkeeping transaction.

W. P. Finch, the husband of the last-named grantee, as the agent of the bank, negotiated a sale of this farm to E. L. Carter. The bank denied that Mr. Finch was its agent, but the court found that he had acted in that capacity, and we think the testimony fully sustains that finding. Finch, as the apparent agent of his wife but as the actual agent of the bank, negotiated the sale of the land to Carter, pursuant to which Mrs. Finch executed a deed on September 6, 1927, to Carter, with the usual„covenant of warranty. This deed described the farm as “containing in all 620.41 acres, more or less.” Carter made a cash payment and assumed the payment of the balance due on the original loan made by the bank, which he testified he would not have done had he known of the deficiency in acreage.

Carter entered into the possession of the land and began to cultivate it, and in April, 1931, wrote the bank that there was a large deficiency in acreage. The hank denied that it was Carter’s grantor, and suit was filed on August 1, 1931, by Carter against the Finches and the hank, in which a rescission of the contract was prayed on the ground of fraud, with the alternative prayer that, if rescission were denied, the purchase price he abated to accord with the actual acreage.

Mrs. Finch filed an answer, in which she alleged that she knew nothing about the farm, and had no interest in it, and that she had received and conveyed the title at the request of her codefendant, the land bank, “without consideration, and without the hope or promise of any compensation; that she was willing and anxious to be of service and to accommodate her husband’s employer, the St. Louis Joint Stock Land Bank,” and that the check which she had received from Carter as a cash payment had been indorsed and delivered by her to the bank at the time she executed her deed. She prayed that she have judgment against the bank for the amount of any judgment rendered against her. The cause, however, was dismissed as to Mrs. Finch.

The bank defended upon the grounds: (1) that it was not the grantor in the deed; (2) that the plaintiff had bought the farm in bulk, without reference to its actual acreage, and (3) that plaintiff had received the acreage described. As to the right of rescission, the bank pleaded the laches of the plaintiff in bringing this suit praying that relief.

We concur in the view of the court below that Carter is barred by laches from maintaining a suit for rescission, for the reason that this relief was not prayed in apt time.

We concur in the findings of the court below on the other questions in the case except as to the extent of relief which should be granted the plaintiff, Carter, on account of the deficiency in the acreage.

The fact that Carter has delayed too long to be granted relief by way of rescission does not affect his right to recover for the shortage in the acreage. It was said in the case of Fort Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S. W. 287: “A party who has been induced to enter into a contract for the purchase of property by the false representations of the vendor concerning the quantity or quality of the property sold may have either of these remedies which he conceives is most to his interest to adopt. ‘ He may annul the contract, and, by returning or offering to return the property purchased within a reasonable time, entitle himself to recover whatever he had paid upon the contract, or he may elect to retain the property and sue for the damages he has sustained by reason of the false and fraudulent representations, and in this event the measure of damages would be the difference between the real value of the property, in its true condition, and the price at which he purchased it; or, to avoid a circuity of action and a multiplicity of suits, he may plead such damages in an action for the purchase money, and is entitled to have the same recouped from the price he agreed to pay.’ Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546.”

In the present case we have not only the testimony of Carter that he was induced to buy the land through the false representation as to the acreage, but we have a confirmation of this testimony-as to the supposed acreage by the recitals of the deed itself.

It is true the bank was not the grantor in the deed, but its agent was, and its liability for the misrepresentation as to the acreage rests upon elementary principles.

As to the defense that the plaintiff Carter bought the farm without express warranty as to acreage, and without reference to the exact acreage, we have to say, as was said by Mr. Justice Biddick in the case of Walker v. David, 68 Ark. 544, 60 S. W. 418, that in a deed conveying a certain number of acres “more or less,” the words “more or less” are precautionary, and are intended to cover slight or unimportant inaccuracies, but do not weaken or destroy the indications of quantity, when no other guide is furnished. Slight discrepancies may be ignored when there is no express warranty as to quantity.

The appellant bank insists that the sale was not made at a given price per acre, bnt at a fixed price for 620.41 acres, “more or less,” bnt, even so, the deficiency in the instant case is too great to be treated as immaterial. In the case of First National Bank of Belleville, Ill., v. Tate, 178 Ark. 1098, 13 S. W. (2d) 587, it was said: “Appellant calls attention to Harrell v. Hall, 19 Ark. 108, 68 Am. Dec. 202, and there are a number of other Arkansas cases to which attention might be called. In all of them, however, the words ‘more or less’ were used after the mention of the number of acres, and it is generally held that ‘more or less’ simply means approximately. And, if there is a very small discrepancy or insufficiency, that a statement of ‘more or less,’ or ‘estimated,’ will prevent the purchaser from recovering where the difference is trifling or small. But, even where the words ‘more or less,’ or ‘estimated,’ or ‘approximately’ are used, or either of them, if there is a very great discrepancy, the purchaser is entitled to recover.”

The court below found that the purchase price of the land which plaintiff Carter agreed to pay, including the cash payment, was approximately $25,000, and that there is a deficiency of 56. acres, for which credit should be allowed at $48.86 per acre, and that credit for this acreage, at that price per acre, should be applied on the principal indebtedness in the same manner as an advance payment upon the principal indebtedness. We concur in this finding, except that we are of opinion that the deficiency in acreage was greater than that found by the court below. We have before us the evidence of an engineer who twice surveyed the land and made a plat of each survey. The first survey was made in March, 1926, and, according to this survey, the farm then contained 511 acres. This survey was made before the flood of 1927, and the undisputed testimony shows that this flood occurred before the purchase of the land by plaintiff and had caused the caving of 56 acres of the land into the Arkansas River. This river forms one of the boundaries of the land, which is described as lying south of tliat stream. The court appears to have allowed credit only for the 56 acres which caved into the river in 1927; but there is equal reason for allowing for the shortage which previously existed.

There was testimony as to certain accretions which, it is claimed, equal the shortage shown to exist by the two surveys. There appears to have been an island in the river near the farm, but the testimony shows that the main channel of the river was originally south of the island, that is, between the island and the original farm. The original owner of the farm claimed no title to this island, but stated that he paid taxes on his original acreage under the expectation that the channel of the river would change and run north of the island and that the old river bed might fill up. This appears to have occurred, and there are certain accretions to this island which equal, in acreage, the shortage claimed, but the testimony does not show that the accretions were made to the farm itself. And there is still a channel of the river, except in very low water, between the farm and the island and the accretions.

The court below did not find, nor do we, that any account should be taken of the alleged accretions, as that land now constitutes no part of the farm.

. We conclude therefore that credit should be allowed both for the 56 acres of land lost through the caving banks prior to plaintiff’s purchase, and for the shortage previously existing, amounting, altogether, to 165 acres, at the proportionate price per acre, which appears to be $40.30 per acre, and the decree will be reversed and the cause remanded, with directions to allow this additional credit as in the nature of an advance payment upon the purchase money.


text:
    United Order of Good Samaritans v. Bryant.
    4-2851
    Opinion delivered February 6, 1933.

      H. B. Mixon, for appellant.

      Smith & Fitzsimmons, for appellee.
   Butler, J.

This is an action brought by appellant order under subdivision 7 of § 6290 of Crawford & Moses’ Digest, in accordance with the procedure prescribed in § 6292 of the Digest to vacate a judgment of the Lee Circuit Court rendered at a former term. To the petition filed to vacate, response was made, and the court, after hearing the testimony on the issues joined, entered its judgment, denying the prayer of the petition and refusing to vacate the judgment theretofore rendered. To that action of the court, the appellant petitioner filed the following exceptions:

I. Defendant, United Order of Good Samaritans, excepts to the ruling of the court on the ground that the record shows an unavoidable casualty or misfortune preventing the defendant from presenting his defense, together with a prima facie showing of meritorious defense.

2. Defendant excepts on the ground that the judgment was partially void on the uncontradicted face of the record as shown by the by-laws of defendant society.

Whereupon, the defendant prayed an appeal to the Supreme Court, and was by the court allowed ninety days 'within which to file hill of exceptions. Bill of exceptions were filed July 9,1932.

The appellant here argues that the judgment of the lower court refusing to vacate its former judgment should be reversed for the reasons, (1) that the undisputed record showed that the appellant was prevented from appearing and presenting his defense because of unavoidable casualty within the meaning of § 6290, supra; and (2) that the records of the company and the statements in the proof of death established the liability of the company, if any, in a sum not to exceed $150'.

The appellee takes the position that it is necessary in proceedings of this nature to file a motion for a new trial as in other suits at law, and obtain the ruling of the court upon that, in order that the testimony taken on the petition to vacate may be brought into the record here and considered by us. Under § 6292, supra, the proceeding’ to vacate or modify a judgment on the grounds mentioned in the seventh subdivision of § 6290, supra, are the same as in ordinary adversary proceedings, i. e., by verified complaint upon which a summons shall issue and be served and other proceedings had as in an action at law. It therefore appears that the procedure prescribed by § 6292, supra, makes this an independent proceeding, and the judgment rendered upon it is final and appealable, and, in order that we may be able to review the judgment of the trial court vacating a former judgment, a motion for a new trial is necessary, and the same must be incorporated with the action of the court thereon in the record; and, when such motion is not made and a rehearing on it obtained, it must be presumed that the judgment of the trial court was based upon sufficient evidence. Martin v. Pierce Petroleum Corporation, 174 Ark. 1161, 298 S. W. 494; Loyal Protective Ins. Co. v. Edwards, 124 Okla. 240, 255 Pac. 700.

The policy sued on provided that, in the event of death of the insured after he had passed a certain age, the beneficiary would be entitled to recover only one-balf of the policy, which would be $150, and it is insisted that the record on its face shows that the insured had reached that” age before he died. However, it appears in the .judgment sought to be vacated that the court heard testimony on this issue, and we must presume that the testimony was sufficient to warrant the finding that the beneficiary was entitled to the sum awarded.

Even should the exceptions filed to the judgment appealed from be treated as a motion for a new trial, we still think that the same should not be disturbed. The trial court is clothed with sound judicial discretion in such matters, and, if we may consider the evidence, we are of the opinion that it was sufficient to warrant the court in its finding that no unavoidable casualty within the meaning of § 6290, supra, has been shown.

Judgment affirmed.


text:
    McDaniel v. Davis.
    4-2859
    Opinion delivered February 13, 1933.

      Puke Frederick, for appellant.
   Smith, J.

Appellee recovered judgment in the court below for the sum of $150, and, for its reversal, it is insisted that the court erred in giving instructions numbered 1 and 3 at the request of the plaintiff. It is insisted also that the verdict of the jury and the judgment thereon are not supported by any substantial evidence.

The nature of the case appears from these instructions,- to which reference has been made, and which read as follows:

“No. 1. If you find from a preponderance of the evidence in this case that the defendant warranted the seed sold to plaintiff to be orange sorghum seed and seeded ribbon cane seed, and that the plaintiff, in reliance on said warranty, bought and planted said seed and cultivated the crop raised therefrom,' and, if you further find that the seed sold to plaintiff was not orange sorghum seed and seeded ribbon cane seed and was unfit for growing cane to make molasses, you are told that the plaintiff is entitled to recover from defendant a sum equal to the value of the crop at maturity which would have been raised from orange sorghum seed and seeded ribbon cane seed less the value of the crop actually raised and the cost of cutting the same and having it made into molasses.”

“No. 3. You are instructed that a sale of seed by name raises an implied warranty that it is true to name; and the fact, if a fact, that the buyer did not inspect the seed before purchasing is immaterial where its character, if shown, cannot ordinarily be ascertained by reasonable inspection.”

It appears that instruction numbered 1 was drawn to conform to the law as declared in the case of Earle v. Boyer, 172 Ark. 534, 289 S. W. 490, whereas instruction numbered 3 appears to be based upon the case of Kefauver v. Price, 136 Ark. 342, 206 S. W. 664.

It‘is insisted that the plaintiff should have been required to recover, if at all, upon either an express or an implied warranty, and that it was error to submit the question whether, if there was an express warranty, there may not also have been an implied one, for the reason that there could not be both an express and an implied warranty.

It was held in the case of Earle v. Boyer, supra, that an express warranty in a sale of seed excludes an implied warranty* but it .was said in that case that the allegations of the complaint were broad enough to support a recovery upon either an express or an implied warranty.

In the later case of Reed v. Rea-Patterson Milling Co., ante p. 595, it was said: “Appellants cannot therefore base their action on implied warranty. The only warranty attempted to be proved was an express one, as already stated, and, of course, there could not be both an express warranty and an implied warranty of fitness or satisfaction in the sale of the flour. ‘The reason is,’ said this court in J. S. Elder Grocery Co. v. Applegate, 151 Ark. 565, 237 S. W. 92, ‘that, if there was an express warranty upon this subject, it would govern as being the contract between the parties. There would be no room for an implied warranty if there was an express warranty on the same subject.’ ”

We are of opinion that no error was committed in giving these instructions, when the testimony in the case is reviewed. Plaintiff testified that he told defendant he wanted “seeded ribbon cane” and “orange cane,” and the defendant said he had it. Plaintiff was accompanied to defendant’s place of business by one McKinney, who examined the seed and expressed the opinion that they appeared to be mixed, and defendant’s salesman spoke up and said, “No, they ain’t.” Plaintiff did not examine the seed, as he did not have his glasses and could not see without them. Plaintiff testified that, when the seed came up, there was cane of several kinds, maize, Kaffir corn, and Egyptian wheat, and “some other stuff I could not pronounce, a various mixture of various kinds.”

The testimony of the defendant was to the effect that there was no representation as to the kind or quality of the seed, and that they were bought after inspection by the plaintiff and the plaintiff’s friend who accompanied him.

Under these conflicts in the testimony, there was no error in giving the instructions set out above. The first instruction declared the law of a case where the seller had warranted the seed sold to be orange sorghum seed and seed ribbon cane and suitable for raising sorghum cane for making molasses. If there was such an express warranty, and breach thereof, the plaintiff would be entitled to recover upon that theory. It is also the law that, if planting seed be sold by a name known to the trade, there is an implied warranty that seed so sold are true to the name. The instruction numbered 3 not only presents this view of the law, but declares the law as favorably as defendant could ask in regard to inspection, this statement being to the effect that the purchaser’s right to recover is not to be defeated by a failure to inspect if the character of the seed could not be ascertained by reasonable inspection.

These conflicts arose in the testimony of the different witnesses called in the case, and are concluded by the - verdict of the jury in the plaintiff’s favor.

The law appears to have been correctly declared as applicable to the different theories of the case; and, as there is sufficient testimony to support the verdict, it must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    New Netherlands American Mortgage Bank, Ltd., v. Little Red River Levee District No. 1.
    4-2860
    Opinion delivered February 13, 1933.

      Golden Blount, for appellant.

      Brundidge & Neelly, for appellee.
   Humphreys, J.

Appellee herein, a levee district in White County, brought a suit on the 21st day of April, 1931, in the chancery court of White County to enforce the collection of delinquent annual benefit tax assessments in the total sum of $1,866.45 for the years of 1923 to 1930, inclusive, against the following described lands owned by T. J. Pryor in said-district, to-wit:

West one-half, southeast one-fourth, sec. 5, Twp. 6, range 5. Southwest one-fourth, sec. 5, Twp. 6, range 5. South one-half, northwest one-fourth, sec. 5, Twp. 6, range 5. Southwest one-fourth, northeast one-fourth, sec. 5, Twp. 6, range 5.

Appellant, to whom T. J. Pryor mortgaged the land, intervened in the suit and specifically pleaded the statute of limitations in defense of the collection of the delinquent taxes.

The trial court ruled that the delinquent assessments were not barred by the statute of limitations and dismissed appellant’s intervention for the want of equity, from which is this appeal.

Section 6831 of Crawford & Moses’ Digest controls, and by it a lien is created upon the lands within the district for the assessment of benefits until paid.

The decree is therefore affirmed.


author: Kirby, J.

text:
    Union Trust Company v. Berry.
    4-2853
    Opinion delivered February 13, 1933.

      Charles 8. Harley, for appellant.

      Pace & Davis and Walter L. Pope, for appellee.
   Kirby, J.

This appeal challenges the correctness of a decree holding appellee entitled to the proceeds of a check given for the purchase price of cattle sold for- him as against appellant and others.

Magness, a member of the firm of Magness & Bar-ham, cattle dealers, and who was also the president of the Bank of Western G-rove, sold 100 head of. cattle belonging to appellee at an agreed price and commission for making the sale to Evans Brothers of Pulaski County, Missouri. The buyer, Evans, after the cattle had been weighed, being in a hurry to get back home on that day, gave a single check for the balance of the purchase price, instead of two checks, a separate one for the balance of the commission Magness was to receive, Magness remarking at the time that he only had $65 coming. There being no bank in Yellville, Magness said he would take the check and collect it. He deposited the check in his name the next day in the bank at Western Grove, telling the cashier when making the deposit slip that he only had $65 interest therein, and he gave a check on his account to appellee for the balance, $2,786.72.

The Western Grove bank immediately sent the check to its correspondent bank, appellant, “for collection and credit,” and the check was sent on for collection,-and payment was stopped, and suit was brought by appellant bank, and an attachment issued and the proceeds of the check was paid into the registry of the court here on stipulation of the parties.

The court found that appellee was the rightful owner of said fund, that appellant had wrongfully prevented its payment to him by its suit in Missouri, and decreed accordingly, directing the clerk of the court to turn over the fund in the registry, $2,786.72, to appellee. A decree was also rendered against appellant for interest and costs, and from this decree the appeal is prosecuted.

Appellant hank, to which the check was sent for collection and credit, did not collect it, and had no other right to it than as agent, and, not being hound by an entry of credit, it had no power to bind the real owner thereby. The owner or holder of the paper, who delivered it to the bank for collection and credit, was at liberty to treat the bank as an agent “until the proceeds are collected by the bank in money, and authority of the bank to credit the customer does not arise until it has actually received the money, ’ ’ as said by this court in First State Bank v. Taylor, 183 Ark. 967, 39 S. W. (2d) 519. See also Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557.

"When payment of Evans Brothers’ check was stopped because of the insolvency of the Western G-rove bank and the check returned to appellant, it charged the amount of the check back to the Western Grove bank, and should have returned the check to the Bank Commissioner in charge of the bank for delivery to the owner. The Western Grove bank had to its credit in appellant bank during December, when the check was received, a balance of nearly $5,000 the day after it was received, and it never fell below the amount of the check, and on December 14th, when the check was returned and charged back, the balance was more than the amount of the check. The owner sending the paper for collection could have controlled the disposition thereof until it was paid in full. Branch Bank v. U. S. Nat. Bank of Omaha, 50 Neb. 470, 70 N. W. 34.

Magness, the president of the Western Grove bank, told Berry, the appellee, who was entitled to the money for which his cattle had been sold, that he would deposit the check for collection, which was done, the cashier being told, when he was making the deposit slip therefor, that he, Magness, only had an interest of $65 therein, the remainder belonging to Berry, for which a check was sent him by Magness, which was never presented or paid. Magness was bnt a trustee for the collection of the money, and his written transfer, assignment and authority authorized Berry to sue for the purchase money in his own name, completing the collection thereof himself.

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