author: Humphreys, J.

text:
    St. Louis-San Francisco Railway Company v. Norman.
    Opinion delivered December 7, 1925.
    1. Master and servant — negligence of fellow servant — evidence. —In a suit by a servant for injuries received through the negligence of a fellow servant, evidence tended to show that plaintiff was injured by the negligence of such fellow servant.
    2. Master and servant — employers’ liability act — assumed risk. ■ — -The Federal Employers’ Liability Act eliminates the defense ■ of assumed risk where the injury was the result of the negligent act of a fellow servant of which the plaintiff was not aware, and which was not so obvious that -an ordinarily careful person would have observed it.
    3. Damages — when not excessive. — An award of $500 for an injury to plaintiff’s foot was not excessive where he was unable to work for three months thereafter, suffered meiital and physical pain, and-a yéar after the injury vVas still unable to do heavy labor.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.

      King, Mahaffey <&■ Wheeler, for appellant.

      Shaver, Shaver & Williams, for appellee.
   Humphreys, J.

Appellee recovered judgment in the sum of $500 against appellant in the circuit court' of Little River County for an injury he received in the left foot while engaged, with other employees, in replacing old rails with new ones on -the main line of appellant’s- railway. It was alleged that the injury was caused through the negligence of a fellow-servant by the name of Abe Cowens, who prematurely struck the rail or bolts at the connection joint of two rails after the last nut had been severed with the chisel held by appellee, thereby causing the steel rail which had been pushed over to one side to spring back, and strike him on the foot before he could move back or get out of the way.

Appellant filed an answer denying that appellee was injured through the negligence of one of its employees as alleged in the complaint, and, by way of further defense, pleaded the assumption of the risk by appellee under the Federal Employers’ Liability Act.

The cause was submitted to a jury upon the pleadings and testimony introduced by the respective parties, which resulted in the judgment mentioned above, and from which an appeal has been duly prosecuted to this court.

Appellant’s main contention for a reversal of the judgment is the alleged total failure of any substantial evidencetendingto show'that appellee was injured through the negligence of appellant’s employee,. Abe Oowens. We do not so interpret the testimony. Appellee testified that he was a member of a section gang, and that, at the time he received the injury to his foot, he and his colaborers were working under the direction of a foreman on appellant’s main line of railway near Bed Bank, replacing old rails with new ones; that, in doing this, the spikes holding the north rail were drawn, and it was pushed over with bars off the ends of the ties before being disconnected, but that, in order to make a connection with the new rail for a train to pass ov<er the track, it became necessary to disconnect the old rails at one of the joints; that he and Abe Cowens were directed by the foreman to cut the taps off the bolts at the joint; that he held the chisel against the taps while Abo struck it; that the joints were held in place by bolts and angle bars when all taps were removed; that, when the last tap was removed at this particular joint, Abe struck the rail or bolts to loosen the joint and break it apart before he (appellee) had time to move back or get out of the way, which lick caused the joint to break, thereby permitting the rail to spring back in place and strike him on the left foot.

If appellee testified truthfully, the injury was caused by the negligent striking of the rail or bolts by Abe Cowens. Abe should have waited until appellee had an opportunity to move back or get out of the way before striking the rail or bolts to loosen the joint. The premature striking of the bolts by appellant’s servant was not an incident to the employment assumed by appellee, for he had no means of knowing that Abe Cowens would strike the rail or bolts to break the joint before he could get out of the way. There is no substantial evidence in the record tending to show that appellee was aware of or could have observed the negligent act of his co-laborer in time to have avoided the injury. One purpose of the Federal Employers’ Liability Act was to eliminate the defense of assumed, risk where the injury was the result of a negligent act of a fellow-servant, of which the injured party was aware or which was so obvious that an ordinarily careful person would have observed. St. L. S. F. R. Co. v. Blevins, 160 Ark. 362.

Under this view of the evidence the court did not err in refusing to give the instruction which appellant requested defining assumed risk, nor was appellant prejudiced by the instructions given upon this question by the court.

We have carefully examined the instructions of the court submitting the only issue in the case to the jury, as well as the objections made to them, but find no substantial defects in them. We think the issue of negligence was fully covered by the instructions of the court, and that it was unnecessary to give those asked by appellant bearing upon that issue.

We cannot agree with learned counsel for appellant that the verdict is excessive. There is testimony in the record tending to show that appellee was unable to do any work from July 9th, the date of his injury, until about the middle of October following; that he suffered much pain mentally and physically; and that at the time of the trial, about a year after the injury, he was unable to do heavy labor on account of his foot.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Coal District Power Company v. Booneville.
    Opinion delivered December 7, 1925.
    1. Municipal corporations — judgment fixing rates of electricity. — Acts 1921, No-. 124, §§ 19, 24, authorizes the circuit court to certify its judgment -fixing the rates -of a public service corporation immediately to the city council, and empowers the city council thereupon to adopt such rates, with the privilege of an appeal within 30 days; as the pendency of an appeal prevents collection of the penalty for violation of -the rates fixed, but not proceedings in preparation for imposing the penalty.
    2. Municipal corporations — judgment and ordinance fixing rates — notice.—The action of the circuit court in certifying its judgment fixing rates for electricity to the city council immediately after rendition thereof, -and the adoption of rates by the city council, held to be public acts within the authority conferred by the Legislature, of which the parties to the suit must take notice.
    3. Municipal corporations — establishing rates fixed by court.— Neither Acts 1921, No-. 124, nor Crawford & Moses’ Dig., § 7494, requires the city council to establish by ordinance the rates for electricity fixed by the circuit court and -certified to the city council, and such rates may toe established by resolution.
    4. Electricity — judgment fixing rates — -final when. — U n d e r Acts 1921, N.o. 124, § 24, providing that no penalty for violation of rates fixed by the city council shall be incurred until an appeal from an order of the circuit court fixing such rates has been finally disposed -of, held where the judgment of the circuit court fixing such rates was affirmed by the Supreme Court, it became final upon expiration of the time for filing a motion for rehearing, and the -contention that the appeal was not finally disposed of until the Supreme Court’s mandate was filed in the circuit court was without merit.
    5. Appeal and error — necessity of mandate. — Mandates to the lower court are necessary only in cases of reversal, and, upon the affirmance -of a judgment, it may toe enforced 'by process out of the Supreme Court. .*
    Appeal from Logan -Circuit 'Court, Southern District; James Goehr am, Judge;
    affirmed.

      James B. McDonough, foT appellant.

      Evans & Evans, for appellee.
   Humphreys, J.

This is a continuation of a suit between appellee and appellant herein, the purpose of which was to fix and promulgate rates for electrical energy to fie furnished by appellant to the consumers of the city of Booneville. The rates were fixed by the city of Booneville pursuant to authority conferred by act 124 of the Acts of the General Assembly of 1921. Appellant herein prosecuted an appeal to the circuit court of the Southern District of Logan County from the action of the city council of 'Booneville fixing and promulgating said rlates. The case was tried de novo in the circuit court. resulting in, a judgment fixing rates which, in the opinion, of the court, would afford appellant herein reasonable compensation for its electricity. ' The judgment was rendered by the circuit court on September 1, 1923. Appellant herein immediately prayed an appeal from that judgment to the Supreme Court, which was granted by the circuit court. On the same day the circuit court ordered its clerk to certify the judgment fixing the rates down to the city council of Booneville. The clerk immediately complied with that order. On the 3rd day of September, 1923, the city council, by resolution, at its regular meeting, adopted the rates contained in the judgment of the circuit court, and spread them upon its record. On September 26, 1923, the appellant herein filed a supersedeas bond and lodged a transcript, of the proceedings in the office of the clerk of the Supreme Court. On the '24th day of December, 1923, this court affirmed the judgment of the circuit court fixing the rates that appellant herein might charge the consumers for electricity within the city of Booneville. The mandate of the Supreme Court was filed in the circuit court on February 26, 1924.

This suit Was brought on the 6th day of March, 1924, by appellee herein against appellant herein, its officers, agent, and employees to recover the penalty provided in § 24 of act 124 of the Acts.of 1921 for charging the consumers more than the rates fixed by the city council, under order of the circuit court, from the time this court affirmed the circuit court’s judgment and the date on which appellant herein put the rates fixed by the circuit court and adopted by the city council into effect. The penalty imposed upon a public utility for violating the rates fixed by a city council under § 24 of said act for furnishing its commodity to consumers within the city is not less than $10 nor more than $500 for each day the violation occurs. The trial court ruled that the appeal in the original case was finally disposed of fifteen judicial days after the affirmance by this court, the time allowed for filing a motion for a rehearing. Pursuant to this finding a judgment was rendered against appellant, penalizing it in the minimum amount for thirty-nine days, from which judgment it has prosecuted an appeal to this court.

'A reversal of the judgment is sought on three grounds: first, that, after appellant herein prayed and was granted an appeal under the provisions of said act, the trial court was without authority to certify the judgment to the city council, and the city council was without authority to adopt and fix the rates contained in the judgment. so certified to it; second, that, if the council had such authority, it must-have adopted the new rates by ordinance duly published; and, third, that in no- event could appellant be penalized until after the mandate of the Supreme 'Court was filed.

A proper solution of the points liaised must be found in the correct interpretation of parts of §§ 19 and 24 of said act"124 of the Acts of 1921, as follows:

Part o.f § 19: “The court, in reviewing the action of the -council or commission, shall hear evidence and determine what rates would afford the appellant valid and reasonable compensation for the services rendered, and shall enter -an -order setting out such rates and cause the same to be certified to the council or commission, and such council or commission shall thereupon fix such rates as -shall be in conformity with the finding of the court; provided either party shall have the right to appeal to the Supreme Court within thirty days from the rendition of su-ch order, in which event the s'aid council or commission shall await the further orders of the court. ’ ’

Part of § '24. “Provided, however, that there shall be no penalty or damages for any sneh violation until the appeal from such rule, regulation, or order of the municipal council or city commission shall have been finally disposed of,, if such an -appeal be taken within the time and in the manner provided by this act. ’ ’

(1) A careful reading of these two sections- leads us to the view that the Legislature intended to authorize the circuit court to immediately certify its judgment fixing the rates to the city council, and to empower the council to adopt such rates at once, with the privilege of appeal within thirty days, in which event the penalty provided in § 24 should not -attach -until the appeal was finally disposed of. The purpose was to inhibit the collection of a penalty for a violation of the rates fixed until a final disposition of the case on appeal, and was -not to prevent proceedings in preparation for the imposition of a penalty for a violation of the rates unless -and until the rates were affirmed by the Supreme Court. The action of the circuit court in certifying its judgment down to the city council and the adoption of the rates fixed in the -circuit court’s judgment by the city council were public acts, within the authority conferred by the Legislature, of which parties to the suit must necessarily take notice.

(2) There is nothing in the act requiring the city council to establish by ordinance the rates fixed by the circuit court and -certified back to it. The act provides that when the judgment of the circuit court- is certified to the council, it ‘‘shall thereupon fix such rates as shall 'be'in conformity with the finding of the court.” The authority conferred upon the city council to fix rates for public utilities is not within any one of the classes required to be- exercised by ordinance under § 7494 of Crawford &.Moses ’. Digest. Where the law conferring authority on the city council to act does not require same to- be exercised by ordinance, it'm-ay be exercised by resolution. Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 350; Bentonville v. Ball, 100 Ark. 496.

(3) The statute requires that the penalty sued for in this case cannot he imposed until the appeal from the circuit court’s judgment fixing the rates has been finally disposed of. Appellant contends that the appeal was not finally disposed of until the mandate of the Supreme Court was filed in the lower court. We cannot agree with the learned attorney for appellant in this contention. The judgment of t'he circuit court was affirmed and became final after the time expired for filing a motion for rehearing. There was nothing further for the trial court to do. It was unnecessary for it to make further orders; hence there was no necessity for a mandate. It is only in cases of a reversal that mandates to the lower court are necessary. Upon affirmance of judgments they may be enforced ¡by process out of the Supreme Court.

N;o error appearing, the judgment is affirmed.

Justices Wood and Smith dissent.


text:
    Holt v. Crawford County.
    Opinion delivered December 7, 1925.
    1. Highways — acquirement by PRESdRlPTroN. — Evidence that ia road was continuously used toy the public without let or hindrance ■ for more than seven years with the knowledge of .the landowner and without any act on his part showing that the use was permissive, held sufficient to support a finding that the public had acquired the road by prescription.
    2. Eminent domain — offset of benefits. — Where the public had a prescriptive right in an old road through a forty-acre tract, an application by -the public for a new road parallel to the old one held an abandonment of the old road, and to warrant an offset of ¡benefits 'against damages.
    3. Eminent domain — surrender of easement rights. — 'Where the public had acquired prescriptive rights in a road which the landowner was threatening to fence, application by the public for a ■ new road parallel to the old one was not such a surrender of the rights in the old road as would prevent the offsetting of damages and benefits, as the abandonment of the old and taking of the new amounted to one transaction.

      4. Eminent domain — set-off of ^damages. — The benefits accruing to an owner’s land may be taken into account in assessing damages for taking land for a public road.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Starbird <& Starbird, for appellant.

      R. S. Wilson and Dave Partain, for appellee.
   Humphreys, J.

The 'only question presented ¡by this appeal for determination is whether the trial court, sitting as a jury, erred in refusing to allow appellant compensation for building and maintaining a fence on each side of the public road laid out through his land on petition in the county court, and for the cost of an underground passage for hogs and cattle to pass from one side of the road to the other in order to get water. The trial court allowed appellant damages only for the land taken in laying, out the road.

The record reflects the following undisputed facts: the public had passed over the land for twenty-five or thirty years on a road west of a creek running through the land, which had not been worked by the road overseer; the old road ran through land susceptible to cultivation, and part of it was bottom land; the land was an unfenced, wooded tract, which appellant decided to fence in for a stock pasture after the passage of a stock law in that community, and, when he notified the public of that fact, they proceeded 'by.petition in accordance with law to lay out a road through the forty-acre tract on the hillside east of the creek. After the same was laid out, the public used the new, instead of the old, road.

The disputed issues of fact revealed by the record relate to whether the public had acquired the right to the old road by prescription, and whether the benefits growing out of the removal of a road from the west to the east side of the creek offset the damages to appellant’s land resulting from taking the new road.

On the first issue most of the witnesses testified that the old road had been used by the public generally for twenty-five or thirty years without let or hindrance hy appellant until he threatened to fence the tract through which it ran. Appellant himself testified that the old road had been used by his permission. Oh the second issue some of the witnesses testified that the benefits accruing to appellant’s land on account of the removal of the road exceeded the damages thereto on account of opening the new road. The court found against appellant on both issues.

Appellant contends for a reversal of the judgment offsetting his damlages with benefits because the public had no prescriptive rights, under the law, in the old road. In support of this contention, he cites the case of Brumley v. State, 83 Ark. 236, in which the rule was announced that where the road was used by the public without an order of court through wild, unused land, the presumption is that it was used by permission or consent of the owner of the lands. In the instant case, even if such a presumption existed, it was not conclusive, and might be overcome by facts and circumstances adduced in evidence. All the witnesses testifying upon the point, except appellant, testified that the road was continuously used by the public without let or hindrance for more than the statutory period of seven years, with the knowledge of appellant, and without any act on his part, showing that the use was permissive. This testimony, under the rule announced in the case of McCracken v. State, 146 Ark. 300, is legally sufficient on appeal to support the finding and verdict of the court to the effect that the public had acquired the old road by prescription. Appellant argues, however, thlgt there is no evidence in the record tending to show an abandonment of the old road, so that appellant could fence in the land through which it ran and thereby derive la benefit from its use. The application by the public for a new road near and parallel to the old road through the same forty-acre tract on account of appellant’s threat to fence up the land constituted an abandonment of the old road in exchange for the new road and warranted an offset of benefits against damages on account oí the exchange of roads. We think there is .nothing in the suggestion of learned counsel for appellant that the abandonment of the old road wlas in itself a surrender of its easement rights to appellant in the sense that the public could not thereafter use the benefits accruing to appellant as an offset against his damages on account of talcing the new road. The abandonment of the old road and the taking of the new 'amounted to one transaction, and there is no good reason why the benefits accruing to the appellant in the exchange of the roads could not be taken into account in assessing his damages. The rule is well settled that, in taking private property for public use, the benefits accruing to the owner’s land may be taken into account in measuring his damages. Cribbs v. Benedict, 64 Ark. 555; Scott v. Bridge District, 103 Ark. 412; Weidemeyer v. Little Rock, 157 Ark. 5.

No error appearing, the judgment is affirmed.


text:
    Hayes Grain & Commission Company v. Federal Grain Company.
    Opinion delivered December 7, 1925.
    CONTRACT — PERFORMANCE—FINALITY OF INSPECTION. — Where parties ■ to a contract of sale agreed that inspection of a grain inspector at Kansas .City should be final in case of dispute, his inspection was final, in the absence of fraud'or gross, mistake, and the fact that several inspections by competent inspectors.elsewhere differed from, that of the inspector named did not tend to show bad faith on the latter’s part.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      .Price Shofner, for appellant.

      Gray, .Burrow & McDoimell, for appellee.
   Humphreys, J.

This is the second appeal in this case. Since the pleadings and evidence .reflected by this record are identical with the pleafiings and evidence reflected by the record .on the first appeal, reference is made to the case of Federal Grain Company v. Hayes Grain & Commission Co., 161 Ark. 51, for a statement herein. By-reference to that case it will he seen that the judgment was reversed- and the cause remanded for a new trial because the trial court erroneously instructed the jury to the effect that the inspection of the grain inspector at Kansas City that parties had agreed should be final in case of a dispute arising between them might be disregarded if the inspection was the result of gross mistake. The 'Supreme Court announced the true rule to be that such an inspection could -not be disregarded unless it could be shown that it was either the result of actual fraud or such gross mistake as necessarily implied bad faith or a failure to exercise an honest judgment upon the part of the inspector. In remanding the case for a new trial the court specifically refrained from passing upon the legal sufficiency of the evidence to support the verdict in favor of the appellant herein. Upon the retrial of the case appellant herein requested an instruction embodying the rule announced by the court applicable in such cases, which the court refused to give because of an insufficiency of proof to meet the requirements o.f the rule, but instead peremptorily instructed a verdict in favor of appellee herein. A judgment was rendered in accordance with the instructed verdict, from which an appeal has been duly prosecuted to this court.' The only question presented by the appeal is whether or not there is any substantial testimony in the record tending to show that the result of the inspection in Kansas City was reached throug'h the fraud of the inspector or through such a gross mistake on his part as would necessarily imply bad faith or a failure to exercise an honest judgment. The record fails to disclose lany evidence- at 'all tending to show that the Kansas City inspector was guilty of actual fraud in making-the inspection. The only fact in the record from which appellant contends that fraud may be inferred is the fact that several inspections made in Little Rock by competent inspectors showed that the oat’s were grade No. 4, instead of grade No. 3, as shown by the Kansas City inspection. "We do not think this Was such a gross mistake that it tended to show bad faith on the part of the Kansas City inspector. Since there is a total failure of evidence tending to show fraud or such a gross mistake- in grading the oats that fraud might reasonably be inferred, the judgment must be affirmed. It is so ordered.


author: McCulloch, C. J.

text:
    State v. Harvey.
    Opinion delivered December 14, 1925.
    L Indictment and information — ground of demurrer. — That an indictment apparently is barred by limitation is not ground for demurrer, as the State may prove that the offense was committed ■ within the period of the statute bar, or else that the running of the statute has been suspended by accused fleeing from justice or by the pendency of another indictment for the same offense.

      2. Criminal law — limitation of prosecution — suspension.— Under Crawford & Moses’ Dig., § 3037, providing that, if there are two indictments pending against defendant for the same ■ offense, the indictment first - found shall toe deemed suspended and shall be quashed, and § 2889, providing that when an indictment is quashed the .time during which it was pending shall not be computed as part of the time of limitation prescribed for the offense,- held that the fact that the former indictment was not dismissed until after the second one was returned, or until the court sustained a demurrer to the second indictment, was immaterial.
    3. - Indictment and information — designation of person. — Where, in 'a prosecution for malicious mischief, two- indictments appear to charge the same offense, a difference in the names of alleged owners of the property may be- explained by parol proof that the ' difference was due to a clerical error, and that the -same offense was intended to be charged.
    Appeal from Lonoke Circuit Court; George W, Clark, Judge;
    reversed.

      H. W. Applegate, Attorney General, John L. Garter, Assistant, and. W. J. Waggoner, Prosecuting Attorney, for appellant.

      Williams & Holloway and Guy E. Williams, for appellee.
   McCulloch, C. J.

The grand jury of Lonoke County, on September 5,1924, returned an indictment against appellee for the statutory offense of malicious mischief (Crawford & Moses’ Digest, § 2511), alleged to have been committed on May 1, 1923, by wilfully and maliciously shooting and killing a dog, the property of William Beggs, of the value of fifty dollars. The court sustained a demurrer to the indictment on the ground that it was apparently barred by the statute of limitation.

. In the case of State v. Reed, 45 Ark. 333, this court said: “But it is no ground for demurrer that a prosecution is apparently barred by limitation. On the trial, the State must prove that the offense was committed within the period of the statute bar, or else that the running of the statute has been suspended, as by a fleeing from justice, or the pendency of another indictment for the same crime.” In the more recent case of James v. State, 110 Ark. 170, we declared the same rule and made the above quotation .from State v. Reed, supra, but in the opinion it was inadvertently said that “the State must allege and prove the commission’ of the offense within the statutory period of limitation.” In that case the indictment did not show on its face that the prosecution was apparently barred, and the question arose, on the trial of the case, in regard to the burden of proof. The language just referred to wias an inadvertence and must be disregarded, for the rule as announced in State v Reed, supra, is the settled rule in this State.

There has been brought into the present record another indictment against the appellee, returned by the grand jury on February 8, 1924, charging the same offense of malicious mischief by wilfully and maliciously killing a dog, the property of William Weggs, of the value of fifty dollars, on May 1, 1923. The record in regard to the disposal of this indictment is also brought into the present transcript, and shows that the former indictment was not dismissed until September 7, 1925, the same day on which the demurrer to the second indictment was sustained by the court. Counsel debate the question whether or not the pendency of the former indictment arrested the statute of limitation so as to prevent a bar of the prosecution under the second indictment. The statutes of this State (Crawford & Moses’ Digest, § 3037) provide that if there shall be pending against the same defendant “two indictments for the same offense, or two indictments for the same matter, # # * £ke indictment first found shall be deemed to be suspended by such indictment, and shall be quashed.” The statute also «provides that, when an indictment shall be quashed, set aside or reversed, “the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.” Crawford & Moses’Digest, § 2889. In the trial of this case it will devolve upon the 'State, in order to show a suspension of the running of the statute of limitation, to prove that the former indictment was for the same offense, but the fact that the former indictment was not dismissed until after the second indictment was returned, or until the court ¿sustained a demurrer to the second indictment, is not important. The two indictments appear to charge the same offense, and the difference in the names of the alleged owners may be supplied by proof that it was a clerical error, and the fact that the same offenses were intended to be charged. Stafford v. State, 59 Ark. 413.

It follows that the court erred in sustaining the demurrer, and the judgment is therefore reversed, and the cause remanded with directions to the court to overrule the demurrer to the indictment, and for further proceedings.


text:
    Fontaine v. Fontaine
    Opinion delivered December 14, 1925.
    1. Wills — -instrument appointing executor. — -An instrument duly-executed in testamentary form which merely selects ¡and nominates an executor is in legal effect a will.
    2. Wills — executor as subscribing witness. — The executor of a will, as a rule, is competent -as a subscribing witness to its execution, within Crawford & Moses’ Dig., § 10535, as his interest is -derived from the statute and not from the will itself, the word “appointment” in the statute referring to some appointment coupled with a beneficial interest.
    Appeal from Sebastian Circuit -Court, Ft. Smith District; John E. Tatum, Judge;
    affirmed:

      Gallaher $ Gean and Pryor S Miles, for appellant.

      W. L. Curtis, for appellee.
   McCulloch, C. J.

Charles B. Fontaine, a resident of Sebastian 'County, Arkansas, died -leaving a properly attested testamentary instrument in the following form:

“Last Will and Testament of C. B. Fontaine, deceased.”
“I, C. B. Fontaine, -being of sound mind and memory being in bad health and having confidence in J. P. Blakely, do hereby constitute him my executor to settle up my. estate in ¡Sebastian and Crawford counties, Arkansas, consisting of real and personal property according to the laws of Arkansas or any other I may have- property. This August 18,1923. ’ ’

Oine of the witnesses to the instrument was J. P. Blakely, the person named as executor. This instrument was presented for probate,- and there was resistance on the part of the appellants, who are the heirs at law of the decedent. The instrument was admitted to probate, and an appeal has been prosecuted through the circuit court and to this court.

It is first contended that the instrument is. not" a will, and for that reason not entitled to probate. The authorities are very, generally against this contention, and the rule seems to be settled, almost without exception, that an instrument duly executed in testamentary form which merely selects and nominates an executor is in legal effect a last will and testament. 1 Underwood on Wills, 9; Schouler on Executors, § 31; Sumner v. Crane, 155 Mass. 483; Rood on Wills, § 68. It is unnecessary to determine whether the provision in the instrument that the said estate be administered “according to the laws of Arkansas” constitutes a bequest or devise of property, for, as above stated, we follow the general trend of authorities in holding that without any disposition of property a mere appointment of an executor in ia duly attested instrument constitutes a will.

It is next contended that the instrument is ineffectual for the reason that the person named as executor is incompetent as a witness. Our statutes on the execution of wills provides as follows:

“'Section 10535. No person to whom any estate, interest, gift or appointment shall be given or made which is by this act declared to be void, or who shall have refused to receive any such legacy, or bequest, or tender made, and who shall have been examined as a witness concerning the execution of such will, shall, after he has been examined, demand or receive any profit or benefit from any such estate, interest, gift or appointment so given or made to him ’by such will, or demand, receive or accept from any person any such legacy or 'bequest, or any satisfaction or compensation therefor.” Crawford & Moses’ Digest.

The general rule established by the authorities is that an executor of a will is competent as a subscribing witness to its execution. Davenport v. Davenport, 116 La. 1009; Hodgman v. Kittredge, 67 N. H. 254; In re Kessler, 221 Pa. 314; Meyer v. Fogg, 7 Fla. 292. Our statute does not change the general .rule, for the word “appointment” used therein necessarily refers to some appointment coupled with a. beneficial interest. All the benefits which accrue to an executor on his appointment are. derived from the statute prescribing the fees, and not by way of a gift or bequest under the will. In other words, the interest which an executor 'has' in the appointment is indirect, and he ¡has no interest within, the meaning- of the statute prescribing- the qualification of witnesses.

Affirmed.


text:
    Marrable v. Hamilton.
    Opinion delivered December 14, 1925.
    1. TRUSTS-t-RESULTING trust — PAYMENT of purchase money. — To constitute a resulting trust in property by reason of payment of purchase price, the payment must be made at the same time or previous to the purchase, so as to constitute a part of the same transaction, and will not result from1 payments made subsequent to the consummation of the purchase. . .
    2. Trusts — burden of proof. — One alleging a resulting trust has the burden of establishing the essential elements of a trust by clear and satisfactory evidence.
    Appeal from Columbia Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      John Marrable and Joe Joiner, for appellant.

      Henry Stevens and Edwin TJpton, for appellee.
   McCulloch, C. J.

Appellee instituted this action against appellant in the chancery court of Ooliimrjia County seeking to establish a resulting trust in certain real estate in the town of Magnolia. He seeks to have the trust established on the ground that by agreement between him and appellant the latter was to purchase the lots from W. A. Scott, the owner, that he (appellee) should pay one-sixth of the purchase price and become the owner of an undivided one-sixth of the property to be purchased, and that this arrangement had been carried out by appellant consummating the purchase from Scott and securing a deed, but that appellant had refused to comply with the terms of the agreement by executing to him a conveyance for his undivided one-sixth. On the trial of the case in the chancery court there was a finding in favor of appellee, and a decree was rendered establishing a trust in his favor.

Appellant resided at Magnolia, and purchased the property in controversy from W. A. 'Scott and received a deed of conveyance from Scott, dated April 22, 1921. The consideration for the purchase, as recited in the deed and as shown by the testimony in the case, was the tota1 price of $1,000, payable $300 cash and the balance in seven equal monthly installments. Appellant made the cash payment of $300 and executed to Scott hiá notes for the balance in installments with interest at ten per cent, per annum.

It appears from the uncontradicted evidence that two other persons, R. Mi. Black and Mrs. Elizabeth M. Cox, wife of J. R. Cox, were interested with appellant in the purchase of the property from Scott, and that it was agreed between them prior to the purchase that each of the parties named was to pay one-third of the purchase price, and become the owner of that much interest in the property to be purchased. There is no controversy between appellant and those two persons in regard to their respective interests in the property. A. L. Brewer and appellee were at that time interested in buying and selling oil leases under the partnership name of Independent Oil & Lease Company. Brewer was staying at Magnolia, carrying on the business, and boarded with appellant at the latter’s hotel. Appellee lived at Hartford and furnished the money to Brewer with which to carry on the business of the Independent Oil & Lease Company. Brewer drew1 drafts on appellee from time to time in carrying on the business.

Appellee testified that on April 23, 1921, he was in Little Rock, and Brewer called him up by telephone and spoke to him about acquiring an interest in the property in 'controversy in the town of Magnolia. Upon his assenting to the purchase, Brewer drew a draft on him for fifty dollars in favor of appellant, and he paid the draft when it came, which was on April 27, 1921. He testified further that about two months later he made two monthly payments of $16.50 each, .and about seven months' later offered to make the remaining payment to appellant, but the latter refused to accept' the payment and refused to make a deed. »

Appellee introduced in evidence a letter received through the mails purporting to be "written by appellant, dated June 18, 1921, setting forth the terms of the purchase from Scott and containing the following statements :

“The purchase price of the lot was ($1,000) one thousand dollars, payable $300 cash, balance $100 per month, and as you have a one-sixth interest your first payment was $50, and then one-sixth of $100 for seven months. When the first payment was due, I paid your part, as I did not know Brewer bought for you.. The second payment will be due the 21st of June this month, so you can send me a check to cover the two payments! The note bears 10 per cent., so you can figure what it is, and send me check to cover the two payments.' It was agreed between the others that when the lot was paid ont I would deed each one his part, as the lot was deeded to me, and the notes made out against me. When are you coming down again? I don’t think there.is much doing at present in trading of leases and etc.”

The letter contained no description of the property in 'controversy.

Appellee also introduced in evidence a receipt signed by appellant, dated April 23, 1921, acknowledging payment of fifty dollars by A. L. Brewer ‘ ‘ as part payment on lots bought of W. A. Scott. ’ ’ • The receipt contained a further recital that the fifty dollar payment was for ‘ ‘ one-sixth interest, ’ ’ and that deeds were to be delivered later,- but the instrument contained ho description of the property purchased.

Appellant testified that at the time of the purchase of the property from Scott he had an agreement with Black and Cox in relation to their interests, and that they paid part of the purchase money, but nothing was said - by him to Brewer about the purchase until after it was consummated.

It is conceded that the testimony is insufficient to establish an express trust,, for the reason that the on'ly writings introduced in evidence fail to describe the property so as to take the transaction out of the operation of the statute,of frauds. It is contended, however, that the evidence is sufficient to establish a resulting trust by reason of the fact that by agreement between the parties appellee was to join in the purchase, and that he paid part of the purchase price pursuant to that agreement. The chancellor based his decree upon the finding that a resulting trust had been established by the evidence.

It has become the settled doctrine of this court that, in, order to constitute a resulting trust by reason of the payment of purchase money, the payment must be made at the same time or previous to the purchase and must be a part of the transaction. In, other words, the payment must be prior to, or contemporaneous with, the purchase so as to ¡make it a part of the same transaction, and a trust "will not result from payments subsequent to the consummation of the purchase. Sale v. McLean, 29 Ark. 612; Red Bud Realty Co. v. South, 96 Ark. 281; Hunter v. Feild, 114 Ark. 128. We are of the opinion that the evidence in this case fails to show that there was a payment made by appellee, or an agreement with reference thereto, at the time of the purchase or prior thereto. The uncontradicted evidence is that the purchase from .Scott was consummated on April 22, 1921, and that the first connection appellee- had with the purchase was a day later, -on April 2.3, 1921. It is true that this is a very narrow margin of time, and, if there were circumstances in the case which justified it, this short period might be bridged so as to hold that the transactions .were contemporaneous, but there is no circumstance proved in the case to show that there was any connection between appellee and appellant or between Brewer, appellee’s agent, and appellant, prior to the payment of the- money on the day mentioned. The receipt shows that the money was paid on April 23, and appellee himself testified that that was the day the payment was made, and appellee does not claim to have had any transaction with appellant prior to that date. Brewer did not testify in the case, and there is nq testimony tending to show that there were any negotiations or agreements between appellant and Brewer prior to April 23, the day after the execution of the deed. Appellant testified- positively that nothing took place between him and Brewer in regard to the matter .until after his purchase from Scott had been consummated, and he is not contradicted, but on the other hand is corroborated by both Cox and Black, who testified that Brewer had nothing to do with the purchase from ’Scott, and that they never knew, until -after the consummation of the deal, that Brewer or appellee were to become interested.

The burden is' on -appellee to establish the trust by clear and satisfactory evidence, and he has failed to prove the essential elements of a trust — the-essential facts from which a trust would result, that is to say, that the payment was made as a part of the transaction of purchase.

The chancery court erred in its decree, and the same is reversed, and the cause remanded with directions to enter a decree dismissing the complaint for want of equity.


author: Wood, J.

text:
    Exchange Bank & Trust Company v. Arkansas Grain Company.
    Opinion delivered December 14, 1925.
    1. Bills and notes — acceptance of rill. — The acceptance of a bill of exchange is the signification by the drawee of his assent to the order of the drawer.
    2. Assignments — receipt and filing of order. — .Where a rice growers’ association received and filed .an order of a customer to pay the amount due him for rice to another, this constituted an acceptance of the order, which then became in legal effect an assignment of funds in the association’s hands belonging to the customer.
    .3. Bills and notes — rights of payee of draft. — The payee of an unaccepted check, order, draft or ¡bill of exchange cannot maintain an action upon it against the drawee, as there is no privity of contract between them; but the payee may sue the drawee after acceptance.
    4. Assignments — acceptance.—Where a rice growers’ association accepted a customer’s order to pay funds due to him to a bank, it was not necessary for the bank to show that .it accepted same since the presumption is that the order, being for the bank’s benefit, was accepted by it.
    Appeal from Arkansas 'Circuit 'Court, Northern District; George W. Clark, Judge;
    reversed.

      John L. Ingram, for appellant.

      Jo.seph Morrison, for appellee.
   Wood, J.

On February 22,1924, the Arkansas Grain Company procured a judgment agiainst Fred E. Bueker in the circuit court of Arkansas County for $368.27, and afterwards on April 9, 1924, filed allegations and interrogatories against the Arkansas Rice Growers ’ Co-operative Association, as garnishee, alleging that that association, on and after the service of the writ of garnishment, was indebted to the defendant in the sum of $400, and had in its hands personal assets belonging to the defendant Bueker of that value. The Arkansas Rice Growers’ Cooperative Association, the garnishee, answered the allegations and interrogatories to the effect that it had in its hands a certain quantity of rice which it believed to be the property of the defendant Bueker, which was delivered to it Tby Bueker; that Bueker, on January 9,1921, delivered to the garnishee the following order:

“Dear Sirs: The Exchange Bank & Trust Company of .Stuttgart, Arkansas, holds a note signed by me in favor of J. F. Whaley for $135.55, and interest at ten per cent, per annum, from. January 7, 1922, until paid. I hereby pledge any’amount that may be due me from this date as additional returns on my 1923 crop of rice to. satisfy said note, and you are hereby, instructed to deliver to 'said bank any additional advances that may come to me. And you are requested to acknowledge receipt to the Exchange Bank & Trust Company of this pledge, land to advise said bank that no other lien is on my crop except this order on you.
“Yours truly,
(Signed) Fred E. Bueker.”

That the garnishee had paid out a large sum on account of the delivery of said rice to the defendant and the holder of the first mortgage on the crop of rice mentioned; that the garnishee did not know whether there would be any moiiey in its hands in excess of the amount necessary to satisfy the order above referred to at the. time of the settlement for 'the rice crop; that the garnishee did not have in its hands any goods, chattels, moneys, credits or effects, except in the manner and to the extent above set forth. The garnishee prayed thati the action be dismissed as to it.

The Arkansas Grain Company, in its reply to the answer of the garnishee, admitted that the garnishee was the holder of the order above set forth, but denied that said order assigned any piart of the funds now in the bauds of the garnishee, but alleged that such order merely directed the garnishee to pay moneys to the Exchange Bank & Trust Company, and that, such being the case, it did not create a lien upon the funds in the hands of the garnishee, and that the writ of garnishment sued out by the appellee created a lien upon the funds prior and,paramount to that created by the order in the hands .of the garnishee. The grain company prayed that the writ of garnishment be declared a prior and paramount lien to the order in the hands of the garnishee, and that the funds now in the hands of the garnishee be applied upon the payment of its judgment against the defendant in the original action.

On August 5,1924, the Exchange Bank & Trust Company filed an intervention alleging that Bueker, the defendant in the original action, was indebted to it in the sum of $508.13, and that, for the purpose of paying that amount, Bueker, on January 9, 1924, had executed and delivered to it his order on the Arkansas Rice Growers’ Co-operative Association, directing such association to pay the amount of his debt to the Exchange Bank & Trust Company; that the Arkansas Rice Growers’ Co-operative Association, the garnishee, accepted the order and filed the same in its office; that, under and 'by virtue of such order, the Eixchange Bank & Trust Company is the owner of the funds garnished, and that its claim is prior and paramount to the claim of the Arkansas Grain Company. The Exchange Bank & Trust 'Company prayed that the Arkansas Rice Growers ’ Co-operative Association be directed to pay to it the sum of $508.13.

The Arkansas Grain Company answered the intervention and denied that the garnishee association accepted the order, and denied that the order was an assignment of the moneys due Bueker by the garnishee.

The cause was tried on the following agreed statement of facts:

“It is agreed that on January 9, 1924, before the writ of garnishment herein was issued and served, that the defendant, Bueker, executed-and delivered to the interveners, Exchange Bank & Trust Company,.the order, a copy of which is attached hereto, as exhibit A, and that said order was, on the same date, delivered to the garnishee, Arkansas Rice Growers’Co-operative Association by the said Exchange Bank & Trust Company. That said association received said order and placed same on file, and that same is now on file in its office in Stuttgart, Arkansas. ” '

The cause, by consent, was submitted to., the court sitting as a jury, and the court found generally in favor of the Arkansas Grain Company, and entered a. judgment in its favor directing the garnishee to pay over to it the funds in its hands as .soon as the amount thereof was definitely ascertained, and dismissed the intervention of the Exchange Bank & Trust Company, from which judgment it prosecutes this appeal.

The appellee contends that the order of January 9th, set forth above, was not accepted by the Arkansas Rice Growers’ Co-operative Association, the garnishee, and this contention is the crux of this lawsuit, because, if there was an .acceptance of the order by the garnishee, in the legal- sense of that term, then th'e garnishee became bound to pay the money in its hands belonging to Bueker to the appellant. If there was an acceptance of the order by the garnishee,, its character, by that act, was changed from ia simple order to an assignment. It was stated in the agreed -statement of. facts that said Arkansas Rice Growers ’ Co-operative Association received said order, and placed same on file, and that same is. now on file in its office. It occurs to us that this act .of the association in receiving and filing the order was tantamount to saying to Bueker, the drawer of the order: “We acknowledge receipt of your order, accept the same,, and will pay the money to the Exchange Bank. & Trust Company as you direct.” The language of the order cannot be construed in any other way than as an absolute renunciation of the amount belonging to Bueker in the hands of the association in favor of the appellant and a peremptory' direction to notify the appellant of that fact, and to- pay to the appellant this money. When the association received and filed the order, instead of returning the same to Bueker or notifying him that it would not comply with his instructions, such act, as we have already stated, on the part of the association was equivalent to saying: “We will pay the money to the appellant as you direct. ’ ’

1 ‘ The acceptance of a bill is tbe signification by tbe drawee of Ms assent to tbe order of the drawer.” Bran-non on Negotiable Instruments, 3rd ed., § 132, p. 358; Bouvier’s Law Dictionary, “Acceptance.”

It .occurs, to ns that the receiving and filing of the order 'by the association was an acceptance thereof on its part; and the order then became in legal effect an assignment of the funds in the hands of the association to the appellant. Such was the interpretation of the order by the association itself, and of its act in receiving and filing the same, as shown in the allegations of its answer, wherein it states that “this garmshee is now holder of an order signed by said Fred E. Bueker, defendant herein, by virtue of which order said defendant assigns to the Exchange Bank of Stuttgart the proceeds to be derived from the sale of Ms rice, the sum of $435.55.”

It is the settled doctrine that the payee of an unaccepted check, order, draft, or bill of exchange, cannot, maintain an action upon it against the drawee, for there is no privity of contract between them. Sims v. First National Bank of Fort Smith, 98 Ark. 1; Rogers Comm. Co. v. Farmers’ Bank of Leslie, 100 Ark. 537; Southern Trust Co. v. American Bank of Commerce, etc., 148 Ark. 283;’ First National Bank of Washington v. Whitman, 94 U. S. 343. But, if the drawee has accepted, then the payee may maintain the action. As we construe the action of the association, it accepted the order in controversy, and therefore the above authorities show that the association was liable to the appellant for the amount of the funds in the association’s hands belonging to Bueker. Since the order by the action of the association became in legal effect an assignment, it was not necessary for the appellant to show affirmatively that it accepted the same. The order being for appellant’s benefit, the presumption is, in the absence of proof to the contrary, that it was accepted by it. 4 Cyc. p. 29, note.

It follows that the court erred in holding that the appellee had prior and superior rights to the appellant by virtue of. the garnishment. The, judgment is therefore reversed, and the cause remanded with directions to enter a judgment in favor of the appellant for the amount due Bueber in the hands of the association;


author: Hart, J.,

text:
    Johnson v. Knowles.
    Opinion delivered December 14, 1925.
    Brokers — right to commission. — Where .a broker showed a house to a prospective purchaser who declined to purchase it, but three months later rented the house,, and thereafter purchased it from the owlner, there being no connection between the broker’s efforts .and the sale, the agent was not entitled to a commission.
    Appeal from Sebastian 'Circuit Court, Ft. ■ Smith District; JohnE. Tatum, Judge;
    reversed.
    statement by the court.
    ■ Bettie C. Knowles .sued A. S. Johnson in the municipal court of the city of Fort Smith to recover $180 for commissions alleged to be due her on the sále of certain real estate for the defendant. • The trial of the ease in the municipal court resulted in a judgment for the defendant, from which the plaintiff appealed to the circuit court.
    There the plaintiff was a witness in her own behalf. According to her testimony, she had been engaged in the real estate business for four or five years in Ft. Smith, Ark., at the time of the transaction in question. A. S. Johnson had built a large number of houses in Ft. Smith, and had listed some of them with her for sale.- This included the property which is the basis of the present suit for commissions. The plaintiff had ail oral contract with A. S. Johnson that, if she succeeded in finding1 a purchaser for any of the property listed with him, she was to have the usual commission of five per cent/ 'tShe: advertised in a.local daily paper that she had residence property listed for sale.. Mrs. A. H. Smith saw the advertisement of the- plaintiff, and called to see her. The plaintiff took Mrs. Smith in her car, and showed her some of the property which Mr. Johnson had listed with her. The plaintiff first called Mrs. Smith’s attention to a west front residence which is the property that Mrs. Smith afterwards 'bought, and which is the basis of this lawsuit. Mrs. Smith declined to consider the house, and told the plaintiff that she wanted a residence with an east front. The plaintiff interested Mrs. Smith in a house with an east front just across the street from the one in question, and Mrs. Smith would have purchased that house, but for the fact that Johnson refused to take in exchange a residence that Mrs. Smith owned in Oklahoma. Two or three months later Mrs. Smith rented the house with the west front from J ohnson. This is the same property which Mrs. .Smith had first stated that she did not want, 'because it had a west front. After Mrs. Smith had resided in this house for one month, and while it was still listed’ with the plaintiff, A. S. J ohnson sold it to her for $3,600, and took in on the deal the Oklahoma property which Mrs.< Smith owned.
    Mr. A. H. Smith and Mrs. A. H. Smith were both witnesses for the defendant. According to their testimony, Mrs. Bettie 0. Knowles never ¡at any time showed Mrs. 'Smith the house which she later bought from the defendant, or in any way tried to sell the same to her. On the other hand, she advised them on two occasions that it and another house next to it which belonged to A. >S. Johnson had been sold. They testified further that subsequently they were looking for a house to rent, and a friend called their attention to the house in question, and they authorized him to rent it for them from A. S. J ohnson if he could do so. The house was rented from Mr. Johnson, and after they had lived in it four or five weeks they began to talk to Mr. Johnson about the purchase of the house, and later on completed the deal.
    According to the testimony of A. S. Johnson, he never at any time listed the house in question with the plaintiff, and she had nothing whatever to do with the sale of it.
    The jury returned a verdict in favor of the plaintiff, and from the judgment rendered the defendant has duly prosecuted ¡an appeal to this court.

      W. L. Curtis, for appellant.

      J. Seaborn H)olt, for appellee.
   Hart, J.,

(after stating the facts). Counsel for the plaintiff seeks to uphold the .judgment on the authority of Scott v. Patterson, 53 Ark. 49, where it was held that if a real estate agent employed to sell land introduces a purchaser to the seller, and through such introduction a sale is effected, he is entitled to his commissions, though the sale is made by the owner.

We do not think that the plaintiff’s own testimony brings the present case within .the principles of law decided in the case cited. The «ale in the present suit did not result from any act or course of conduct whatever of the plaintiff. According to her own testimony, she showed the house in question to Mrs. Smith, and the latter declined to purchase it because it had a west front. The plaintiff failed to sell Mrs. 'Smith a house across the street with an east front, because they could not agree on taking in exchange some property which Mrs. Smith owned in Oklahoma. Then the transaction so far as the plaintiff was concerned ended. Two or three months later Mrs. Smith rented from Johnson the property in question, and after she had lived in it for about a month she entered into negotiations with Johnson which led to the purchase of the property by her.

It is true.that, according to the testimony of the plaintiff, the property was still listed with her, but she had nothing whatever to do with making the sale. It may be that after Mrs. Smith had lived in a house with a west front for a while her objection to that kind of a house was removed; but, 'be that as it may, she had definitely declined to purchase the property when it was shown to hér by the plaintiff, and the matter was' closed, so far as the plaintiff was concerned.

■ Thqre is nothing in the record tending to show- that the .subsequent purchase by Mrs;. Smith from .Johnson himself was for the purpose 'of .preventing Mrs. Knowles from receiving commissions, or that Mrs. Knowles was in any manner whatever interested in' making the sale. Her part in trying to sell one of J ohnson’s houses to Mrs. Smith was ended, and there is no rule of law .which would prevent Mrs. Smith from subsequently purchasing- a house from Johnson on her own account.-

If follows that the court erred, in not instructing a verdict for the defendant as requested by -him, and, inasmuch: as the case seems to have. been.fully developed, no useful purpose could be served by remanding it for -a new. trial.

It follows that the judgment will be.reversed, and the cause of action dismissed here.


author: Smith, J.

text:
    Furst & Thomas v. Moseley.
    Opinion delivered December 14, 1925.
    Guaranty — fraudulent representation of debtor. — -Where a contract guaranteed payment of the balance of account for goods previously .purchased by the .debtor, - misrepresentations of the debtor to the guarantor that there was no unpaid account do not bind the creditor nor release the guarantor, in the absence of knowledge or participation of the creditor in such misrepresentation.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      Avery M. Blount, for appellant.

      John E. Miller and Gul L. Pearce, for appellee.
   Smith, J.

This suit was brought by appellants, Furst & Thomas, against I. B; Ohrisp, as principal, and Perrie Móseley, Gr. ÍW. Skinner and T. B. Scarborough, as sureties. No service was had upon Chrisp, ¡as he had left the State, and no answers were filed by Skinner and Scarborough, and judgments were rendered against them by default, but appellee Mbseley filed an answer and cross-complaint. From these pleadings it appears that Chrisp had been engaged in the sale of merchandise furnished him by appellants, Furst & Thomas, for that purpose, and on December 23, 1922, a written contract was entered into whereby Furst & Thomas agreed to sell Chrisp certain goods and merchandise on a credit. On the same day Moseley, Skinner and 'Scarborough executed a contract of suretyship guaranteeing the payment of all goods sold and delivered to Chrisp, including any balance due on his contract.

The contract of suretyship was executed by signing one of the printed forms used by appellants for this purpose, and its provisions are as follows:

‘ ‘For and in consideration of the payment of $1, the receipt whereof is hereby acknowledged, and the extension of credit to the above-named merchant by Furst & Thomas, we, the undersigned, jointly and severally guarantee to them the faithful performance of th.e above contract by him and payment for goods furnished to him on credit, as therein provided, including any balance on- his account for. goods previously purchased by him and remaining unpaid at date of its acceptance, waiving acceptance of this guaranty and all notice, and we agree that the written acknowledgment of his account by the said merchant shall bind us, and that any extension of time shall not release us from liability thereon, and we further agree that after three months from the termination of the above agreement by either party and the nonpayment of his account by said merchant, this guaranty shall become absolute as to the amount due from him, and upon demand we promise to pay the amount due Furst & Thomas without any proceeding being taken by them against the said merchant.
“ (Guarantors sign here in ink)
“Name Occupation P. 0. Ad-dress
Perrie Moseley..................Farming....................................Bald Knob
George "W. Skinner.........Farmer.......................................Bald Knob
T. B. Scarborough.........Farmer.......................................Bald Knob”

It was alleged in the -complaint that Chrisp was indebted to appellants, Furst & Thomas, in the sum of $1,123.93, and judgment therefor was prayed.

In appellee’s answer he denied that he was liable for any balance due by -Chrisp for goods and merchandise furnished prior to the execution of the contract set out -above, because that contract did not show on its face that Chrisp was then indebted to Furst & Thomas, and appellee was assured by -Chrisp that there was no outstanding indebtedness. Appellee relied upon this representation of Chrisp and was induced to believe it because the contract -did not show any sum then claimed by Furst & Thomas as due them.

Appellee admitted that certain goods had been furnished Chrisp since the execution of the bond, and he offered to confess judgment for the value thereof.

Appellants demurred to so much of the answer, as denied liability for the goods furnished -Chrisp before the execution of the bond s-ued on. This -demurrer was overruled, and plaintiffs stood on the demurrer, whereupon judgment was rendered against appellee for the amount for which appellee offered to confess judgment, and plaintiffs have appealed.

The writing sued on appears to be an unambiguous contract whereby the sureties -agree, in consideration that goods be furnished their principal, to pay for such goods, together with any balance due for goods previously furnished, and we perceive no reason why the contract must not be enforced according to its terms.

In the case of People v. Lee, 104 N. Y. 441, the court of appeals of that State said: “While the liability of guarantors is strictissimi juris, and cannot be extended by construction beyond the plain and explicit language of their contract, they are still subject to thé rule that effect must be given to all of the language of the contract, and a meaning and effect ascribed to each of the words and phrases used therein, if it can be done without violating its plain intent. ■ The general rule is undoubtedly that a contract cannot be construed to have a retroactive operation, and that such an effect can be given to it only where, by express words or by necessary implication, it clearly appears to be the intention of the parties to embrace past transactions, but, when this does appear, it is undisputably competent for parties to bind themselves for such liabilities. ’ ’ •

By the terms of the contract here sued on the sureties obligated themselves to pay “the regular wholesale price for all goods sold to him (Chrisp) by them (Furst & Thomas), including any balance on his account for goods previously purchased by him,andremainingunpaid at date of acceptance of this contract. ’ ’ There is no allegation that Furst & Thomas were parties to or aware of the alleged fraudulent representation of Chrisp that he was not then indebted to Furst & Thomas.

In the case of J. R. Watkins Medical Co. v. Montgomery, 140 Ark. 487, 215 S. W. 638, Warren, the surety on a contract which was similar to the one here sued on, defended on the ground that he was induced to sign the contract by the fraudulent misrepresentation of Montgomery, the agent of the plaintiff medical company. We said this defense, if true, did not avail Warren, it not being shown that the plaintiff medical company was aware of or a party to.the misrepresentation. We said that Montgomery was the principal in the contract of suretyship, and Warren was his surety, and that, regardless of the nature of the contract between appellant and Montgomery, whether it was 'one creating the relation of agency between them as to their transactions or whether it was a contract for the sale and delivery of merehandise, Montgomery was not the agent of appellant in the procurement of sureties in the performance of his contract with appellant. In procuring sureties Montgomery was necessarily acting for himself and not for appellant. ”

So here Ohrisp was not the agent of the plaintiffs in securing 'sureties to the guaranty contract; he was acting for himself, and his misrepresentations in regard tq his existing liability could not bind the plaintiffs in the absence of knowledge of or participation in the misrepresentations.

The answer did not set out any valid defense, and the demurrer therefore should have been sustained. Watkins Medicine Co. v. Coombs, 166 Pac. 1072; Saginaw Med Co. v. Batey, 146 N. W. 329; Watkins Medicine Co. v. Hunt, 177 N. W. 462; Furst & Thomas v. Sandlin, 94 Sou. 740; Watkins Medicine Co. v. McCall, 133 N. W. 966. These eases cite numerous others to. the same effect, the decision in all of them being in line with our own decision in the ease of J. R. Watkins Medical Co. v. Montgomery, supra.

The judgment of the court 'below will therefore be reversed, .and the cause will be remanded with directions to sustain the demurrer to the answer.


text:
    Pride v. Gist.
    Opinion delivered December 14, 1925.
    Taxation — recovery of land from tax purchaser — adverse possession. — Under Crawford & Moses’ Dig-., § 6947, providing- that no action for the recovery of the possession of land against a person having a tax deed unless the plaintiff was seized thereof within two years next before comnj^ncement of such suit, held that occasional disconnected acts of ownership on the part of a tax purchaser, such as cutting timber for a few days, cutting a way for a fence and removing a house, are insufficient to dispossess the owner of the land or toar his action for its recovery.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    reversed.

      A. D. DuLaney, for appellant.
   Smith, J.

Appellants, who owned the legal title to an eighty-acre tract of land in Little River County, sued appellee in ejectment to recover possession of the land. The land had forfeited to the 'State, and on May 7, 1919, appellee obtained a deed from the 'State Land Commissioner. This suit was originally begun May 31,1921, and at the first, trial thereof in the circuit court a verdict was directed in appellee’s favor upon the ground that the suit had not been brought within two years of the date of the commissioner’s deed, as required by § 10119 C. & M. Digest. Upon appeal to this court we held that the tax sale under which the land forfeited to the State was void, and that § 10119, C. & M. Digest, did not apply. There was some testimony tending to show that appellees had had two years’ possession of the land under the commissioner’s deed, and title was claimed by virtue of this possession under § 6947, C. & M. Digest. We held that this was a question of fact for the jury, and we remanded the cauáe for a trial on the issue of possession. Pride v. Gist, 152 Ark. 368.

Upon the remand of the cause the case was submitted to a jury upon this issue of fact, and there was a verdict and judgment for appellee, from which is this' appeal.

Numerous assignments of error are discussed relating to the admission and exclusion of testimony at the trial below, and to the giving and refusal to give certain instructions; but we do not consider these questions for the reason that in our opinion the testimony did not show such possession on the part of appellee as to entitle him to the benefit of § 6947, C. & M. Digest. This failure of proof was one of the grounds of the motion for a new trial.

By §6947, U. &'M. Digest, it is provided that no action for the recovery of the possession of any lands against a person having a tax deed thereto may be maintained unless the plaintiff in such suit, his ancestor, predecessor, or grantor, was seized of the lands in question within two years next before the commencement of snch suit.

■ In the former opinion in this case we cited a number of the leading cases in which this section of the statute had been construed, and these cases need not be reviewed here. Their holding was to the effect that two years’ actual adverse possession under a tax deed based upon a void tax sale would bar the action of the original owner to recover the land, but that tills possession must be actual and continuous. In our view the testimony at the trial from which this appeal comes is not sufficient to meet this requirement.

It was shown that about thirty-five acres of the land had at one time been 'cultivated, but it had not been cultivated for the eight years immediately preceding the trial in the court below. The land had once been fenced, but the fence had fallen down and was not rebuilt by appellee. There was a house on the land, but it was in bad repair and appellee began'in December, 1920, to tear down and to remove the 'house, and'he finished moving it in 1921. Appellee cleared a few acres of an old field by cutting the brushes which 'had grown up on it, and he cut and sold a quantity of timber from it. After moving the house appellee and his son cut out a way for a fence and built a fence on two sides of the land, but no inclosure was made. This was done in the fall of 1920.

It appears that appellee’s first entry on the land was in the fall or winter of 1920, and, of course, his possession of the land could not have begun' prior to that event, and this suit was brought within two years of that date. Moreover, we think there was never such possession of the land as is required by law to bar the owner of the land from attacking a deed based on a void tax sale. There appears to have been only occasional, disconnected acts of ownership, such as cutting timber for a few days, and at another time a few days were spent in cutting a way for a fence, and a house was removed. A fitful, disconnected possession of this kind is insufficient under the cases cited in the opinion on the former appeal to bar ■appellants’ suit under § 6947, 'C. &. M. Digest, and the trial court should have so instructed the jury.

It is stipulated that a proper tender was made appellee before the institution of the suit, and,' as the case appears to have been fully developed, the judgment of the court below will be reversed, and the cause remanded with directions to enter a judgment in appellants’ favor for the possession of the land.


text:
    Lesser-Goldman Cotton Company v. Miller.
    Opinion delivered December 21, 1925.
    Landlord and tenant — notice op landlord’s lien. — The buyer of cotton on which a landlord’s lien exists cannot escape liability therefor unless he has acted in good faith in making such purchase, and good faith requires a reasonable investigation of any information which he has that is calculated to warn him that a landlord’s lien thereon exists.
    Appeal from Fulton Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Humphries & Goodwin and J. G. Burke, for appellant.

      G. E. Elmore, for appellee.
   Humphreys, J.

This suit was instituted in the chancery court of Fulton County by appellee against appellant to enforce a landlord’s lien for rent on 21 bales of cotton raised on Mrs. Laura Murrell’s farm in 1922 by her tenant, Mrs. Aliene Williamson.

Appellant, who purchased the cotton from Williamson Brothers, a partnership composed of John S. Williamson and Ed Williamson, interposed the defense that it bought the cotton in good faith, not knowing that it had been raised on the farm of Mrs. Laura Murrell, or that she had a landlord’s lien thereon for rent.

The cause was submitted to the court upon • the pleadings and testimony adduced by the respective’parties, which resulted in a finding of the issues of fact and law in favor of appellee, and a decree against appellant for the amount sued for, from which an appeal has ¡been duly prosecuted to this court.

Appellant contends for a reversal of the judgment upon the ground that the finding of the chancellor was contrary to the clear preponderance of the evidence under the law applicable to the case. The rule announced in the case of Van Etten v. Lesser-Goldman Cotton Company, 158 Ark. 432, applicable to -a case -of this kind is as follows: “One who purchases cotton upon which a landlord’s lien exists cannot escape liability therefor except when he has acted in good faith in making such purchase, and good faith requires a reasonable investigation of any information which he has that is calculated to warn him that he is being offered cotton upon which- there exists a landlord’s lien.”

The undisputed facts in the case fix liability upon appellant under the rule quoted above. These facts are as follows:

Appellant has maintained an office in Helena for 23 years under the management of Joseph L. Solomon .for the purpose of buying cotton in Phillips and surrounding counties. It had bought large amounts of cotton yearly for five or six years from Williamson Brothers, who were in business at Holly Grove about forty-five miles from Helena. Williamson Brothers owned a large plantation in Monroe County near Holly Grove, and raised most of the cotton which, they sold to appellant. The senior member of the firm, John S. Williamson, was the husband of Aliene Williamson, who rented the farm of Mrs. Laura Murrell for the years 1920, 1921 and 1922. Joseph L. Solomon was vice president of the Security Bank & Trust Company, and his brother, David L. Solomon, was assistant cashier of said bank. Williamson Brothers did all their business with -that 'bank. They shipped practically all their cotton from time to time during -the season to appellant, and, when it was sold, deposited the proceeds, after paying any drafts which appellant had drawn upon it, to Williamson Brothers’ credit. The individual cotton of Williamson Brothers, when shipped to appellant, wlas marked in their name. The ootton shipped through Williamson Brothers which had been produced on the Murrell farm was marked with the letter “M” in addition to the name of Williamson. Brothers. During’ the years 1920 and 1921 after the cotton raised on the Murrell' place was shipped to appellant, Williamson Brothers drew drafts on appellant in favor of Mrs. Murrell for her rent, which drafts were paid by it. Mrs. Murrell’s lease for 1922 provided for a rental of $850 to be paid on or about November 15th of that year. .Twenty-one bales of cotton were shipped to appellant in small.lots between October 1st and December 15th. - It was-marked with the letter “M” in addition to carrying* the name of Williamson Brothers. On December 1, 1922, Williamson Brothers drew a draft, as usual, upon appellant in favor of Mrs. Murrell for the.rent. At the same time they drew a draft on appellant for $150- to pay' for ginning- the Murrell cotton. Appellant paid the draft for ginning but refused to -pay Mrs. Murrell’s draft for her rent, because they had theretofore applied the proceeds of the cotton to the payment of Williamson'Brothers’ indebtedness to said -bank- . _.

According- to the undisputed facts stated ¡ above, appellant had information that a part of the cotton it got from. Williamson- Brothers in 1920 and 1921 was raised on the Murrell farm,-and that Mrs. Murrell had a landlord’s lien thereon for the rent. It paid the rent drafts for these two years to Mrs. Murrell upon the cotton which Williamson Brothers shipped to it under the mark “M”. Cotton marked in the same way was shipped to it by Williamson Brothers in' 1922, aiid this information was sufficient to put it upon inquiry. Had appellants made inquiry, it -would have -ascertained that the 21 bales 'of ootton marked “Ml” were raised-on Mrs. Murrell’s farm, and that under hér lease she was entitled to a landlord’s lien thereon for $850. Good faith required that it make-an investigation. :

No erro'r -appearing, the decree is affirmed.


author: -Smith, J.

text:
    Sewell v. Umsted.
    Opinion delivered December 21, 1925.
    1. Reformation • of instruments — sufficiency of evidence. — To obtain reformation of a deed for a mutual mistake, it is not essential that the testimony be undisputed which tends to show that the plaintiff is entitled to the relief, but the testimony must show clearly and unmistakably that a mutual mistake was made whereby the deed which was executed did not reflect the real intention of either party.
    2. Reformation of instruments — Evidence.—Evidence held clear and unmistakable that a mutual mistake was made in describing land in a deed, justifying reformation of the deed.
    3. Evidence — statements of grantor before execution of deed.— In a suit to reform the description in a deed on the ground of a mutual mistake, the admission of statements made by the grantor before execution of the deed tending to prove such mistake did not violate the rule that prior writings and oral statements are deemed to be merged in the written contract, as that rule has no application where agreements are executed through mutual mistakes.
    4. Witnesses — suit against deceased grantor’s heirs — grantee as witness.- — -In a suit to reform the description in the deed of a deceased grantor against his heirs, the grantee’s testimony did not violate Crawford & Moses’ Dig., § 4144 (Const, sched. § 2), the -suit not being against the executor or administrator of the grantor.
    5. Reformation of instruments — -laches.—-A suit against a grant- or’s heirs to reform a -description in a deed for a mutual mistake was not barred by laches, though the grantor was dead and the land had greatly increased in value by the discovery of oil, where the land whic-h defendants claim was intended to- be conveyed had also increased in value, and had been leased by the grantor for oil and gas.
    Appeal from Ouachita Chancery Court, First Division; J. Y. Stevens, Chancellor;
    affirmed.

      Powell, Smead & Knox and Thos. W. Hardy, for appellant.

      T. J. Gaughan, J. T. Sifford, J. E. Gaughan and E. E. Godwin, for appellee.
   -Smith, J.

On April 14, 1917, Albert Berry owned the west half of the northwest quarter and the northwest quarter of the .southwest quarter of section 33, township 15 south, range 15> west, and on that date he executed a deed for one of these forty-acre tracts of land to Sid Umsted. The deed described the land conveyed as the southwest quarter of the northwest quarter section 33, township 15 south, range 16 west. Later oil was discovered in the vicinity of these lands, and Umsted, the grantee in the deed,- who was a large landowner, began to have his titles examined and perfected with the view to making them merchantable. He had abstracts of title made to his lands, and he submitted to his attorney for examination an abstract of the title to the southwest quarter of the northwest quarter of section 33, township 15 south, range 16 west. An examination of the abstract disclosed that Umsted’s grantor had no title whatever to this land, whereupon Umsted, so he alleged in his complaint, discovered for the .first time that the deed had not only erroneously described the land as being range 16, when the range should have been stated as 15, but the deed had erroneously described the land conveyed as the southwest quarter of the northwest quarter of section 33, whereas the land purchased and which should have been described was the northwest quarter of the southwest quarter of section 33.

Upon these allegations Umsted prayed the court to reform the deed to conform to the intention of the parties, and from a decree awarding the relief prayed is this appeal.

The tract of land owned by Berry at the time of the execution of the deed in question was described by the witnesses as being three forties long and one forty wide, that is, the land extended three-fourths of a mile north and south and one-fourth of a mile east and west.

It is Umsted’s contention that he bought the south forty-acre tract, whereas the deed conveyed the middle forty, leaving one forty north and the other forty south of the land described in the deed.

At the time of the execution of this deed none of the land was very valuable, and the south forty was the lowest and least valuable, but Umsted testified that he bought this south forty because it had a good building site on it, and adjoined land which he already owned. The middle forty described in the deed did not join any land which Umsted owned.

The county surveyor testified that on the 14th-and 15th of September, 1917, he made, at the request of Umsted, a survey of the northwest quarter of the southwest quarter of section 33, and at the same time made' á survey of an adjoining forty which Umsted owned. He made no survey of the middle-forty.'

A witness named Joyce testified that he was present when the trade between Umsted ánd Berry was made, and the land then agreed to be sold was referred to by both parties as the extreme south forty.

A witness named Hirsch testified, that he applied to Berry for an oil lease on the 120-acre tract, and that he purchased from Berry a lease on the west half northwest quarter section 33, -but Berry declined to give a, lease on the south forty, that is the northwest quarter southwest quarter, for the reason then stated that he had previously sold that land to Umsted.

Allen Fotch testified that he had been for many years a neighbor of Berry, and that Berry discussed the sale of the south forty with him and told him he was, going to sell the south forty to pay his debts, and later Berry told him he had sold the south forty to Umsted. This witness also- testified that, after. Berry told, bim he had sold the south forty, Umsted had rails made, and that Umsted cut and removed timber from that tract.

. Frank Murphy testified that Berry told him he had sold the south forty to Umsted.

Frank Griffin testified that he had applied to Berry to buy the northwest quarter of the southwest quarter of section 33, but Berry told him he had already sold that tract to Umsted.

Sam Bennett testified that Berry told him he had sold the south forty to Umsted, and that Umsted made rails on this forty soon after buying a tract of land from Berry.

John Young testified that he kept books for XJmsted at XJmsted’s sawmill, and that, while he was so employed, checks were issued to pay for the labor of cutting logs •on the northwest quarter southwest quarter section 33, but nothing was paid as stumpage.

XJmsted testified that all the land was low, but there was a good building site on the northwest quarter southwest quarter, and he wanted the land on that account to keep any one from 'building on it, and that this land cornered at a place where he had a gate in a fence around a tract of land which he then owned. Neither of the other two forties owned by Berry adjoined his land. After buying this south forty he employed Berry to assist in cutting rails and poles on that land, and he paid Berry for so doing.

The deed in question was prepared by Joe Cook, a justice of the peace, from a tax receipt which Berry furnished him to secure the description. XJmsted testified that ’both he and Berry told Cook that the land to be described was the south forty, and that after .the deed was written and acknowledged before Cook it was delivered to Cook to file for record, and XJmsted never read the deed until the error in the description was discovered, when the abstract was examined.

Cook testified that he prepared the deed from a tax receipt given him by Berry, and that both XJmsted and Berry pointed out on the tax receipts the land to be described in the deed, and that he wrote into the deed the description which had been pointed out to him. lie admitted, however, that in preparing the deed he had erroneously written the range as 16 west, when it should have been range 15 west.

It appears that a suit was brought in the chancery court, which involved an oil lease on the southwest quarter of the northwest quarter of section 33, and an intervention was filed by XJmsted in this suit in which ■ he claimed to own that tract of land by virtue of the conveyance thereof to him from Berry. This intervention was filed September 16, 1922. This pleading was explained -by Mr. T. J. Gaughan, who prepared and filed it for Umsted. Mr. Gaughan testified that Umsted told him he had bought Berry’s south forty, and the witness, in preparing this pleading, was under the impression that Berry owned only two forty-acre tracts, the two together comprising the west half of the northwest quarter, the south forty of which would, of course, be described as the southwest quarter of the northwest quarter, and when witness discovered a little over two weeks later that Berry had owned three — and not two — forty-acre tracts, he dismissed the intervention and brought the suit to reform the original deed from’Berry to Umsted so that, when reformed, it would convey the south forty, which is correctly described as the northwest quarter of the southwest quarter.

It was also shown that after the execution of the deed sought to be reformed Umsted paid the taxes on the lands described in the deed, and not on the northwest quarter of the southwest quarter; but Umsted testified that he paid taxes from his deeds and did not make any examination of the descriptions to verify their accuracy, and did not discover the error until shortly before the time when this suit was brought.

To obtain a reformation of a deed, it is not essential that the testimony be undisputed which tends to show that the party asking that relief is entitled to it; but it is essential that the testimony, in its entirety, show clearly and unmistakably that a mutual mistake was made whereby the deed which was executed did not reflect the real intention of either party.

One of our early cases on the quantum of proof essential to reform a deed is that of McGuigan v. Gaines, 71 Ark. 614, in which Mr. Justice Riddick/ speaking for the court, said that to establish a mistake the evidence must be clear, unequivocal and decisive, and this court has since adhered to that statement of the law in granting or in denying relief by way of reformation. The difficulty in each, case is to determine whether the testimony measures up to this requirement.

Without further reviewing the testimony, we announce our conclusion to he that the testimony set out above meets the requirement stated by Mr. Justice Rid-dick, and fully justified the court below in awarding the relief prayed.

It is insisted, however, that the court erred in admitting and considering incompetent testimony, and that, if this incompetent testimony is excluded, the competent testimony remaining will not support the decree of the court below.

It is first insisted that the court erred in admitting any of the statements made by Berry before the execution of the deed, and in support of this contention counsel for appellants cite cases holding that all antecedent propositions, correspondence and prior writings, as well as oral statements and representations, are deemed to be merged into the written contract which concerns the subject-matter of such antecedent negotiations when the written contract is free of ambiguity and is itself complete. To make the broad application of this rule of evidence which counsel for appellants here insist upon would result in denying reformation in any case. This rule of evidence does not apply when the agreement signed by the parties was executed through mutual mistake.

At § 2103 of Pomeroy’s Equity Jurisprudence and Equitable Remedies, volume 5 (2nd Ed. 1919) page 4739, it is said: “It is the generally established rule in the United States that parol evidence of mistake is admissible in all cases and for all purposes, notwithstanding the fundamental doctrine of the law of evidence that parol proof is not admissible between the parties to vary a written instrument, and notwithstanding that the effect of the parol evidence, may be to enlarge the scope of an instrument required by the statute of frauds to be in writing. ‘ The authorities all require that the parol evidence of the mistake, and of the alleged modification, must be. most clear and convincing, * * * or else the mistake must 'be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of the evidence, but only upon a certainty of the error’.”

The admissibility of such testimony has been frequently recognized by this court. Cain v. Collier, 135 Ark. 293; Welch v. Welch, 132 Ark. 227.

It is insisted that the testimony of Umsted is incompetent and inadmissible under § 4144, C. & M. Digest, and § 2 of the Schedule to the Constitution, which read as follows: “In civil actions, no witness.shall.be excluded because he is a party to the suit or interested in the issue to be tried. Provided, in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to. any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. Provided further, this section may be amended or repealed by the General Assembly,”

The testimony shows that Berry died in 1921* and that his wife is also dead; that they had an only child named Parthenia, who intermarried with one Arthur Sewell, and two children were born of this union, one named Arthur W., and the other John W. Sewell. Parthenia. is also dead, so that these children constitute the sole and only heirs of Albert Berry, who was the grantor in the deed here sought to be reformed. This suit for reformation was brought against these heirs and their father, and Umsted had had no transaction with any of them and did not testify as to any transactions had with them or concerning any statements made by them.

A syllabus in the case of Lawrence v. LaCade, 46 Ark. 378, reads as follows: “When the widow and heirs, and not the administrator of an intestate, are the parties to an action, the testimony of the adverse party of transactions with the deceased is admissible. The, widow and heirs are not within the proviso of section 2, schedule to the Constitution of 1874.”

In Williams v. Prioleau, 123 Ark 156, Mrs. Prioleau brought suit in ejectment against the widow and heirs of Gabe Williams to recover a tract of land which had been conveyed to her by Williams and his wife. The answer alleged that the deed was in fact a mortgage, and the .cause was transferred to the, chancery court.. ÍJpon the trial there the plaintiff’s husband, who had acted as her agent in the transaction, was permitted to testify concerning the transactions with Williams and his wife both before and after the execution of. the deed. It was insisted that this testimony was incompetent under. § 4144, C. & M. Digest, quoted above.. This contention was disposed o>f by the court in the following language: “The objection, that the testimony of Prioleau is incompetent as relating to transactions with deceased Gabe Williams is without merit, the suit not being against the executor or administrator of his estate. Section 3093, Kirby’s Digest; Bird v. Jones, 37 Ark. 195; Mosley v. Mohawk Lbr. Co., 122 Ark. 227.” See also People’s Savings Bank v. McInturff, 147 Ark. 296; Britt v. Berry, 133 Ark. 589; Blackburn v. Thompson, 127 Ark. 438; Collier v. Trice, 79 Ark. 414; Strayhorn v. McCall, 78 Ark. 209.

It is finally insisted that appellee was guilty of negligence and laches and is barred on this account. It is pointed out that Berry is now dead, and that the land, worth only $2 per acre at the time the deed was1 made, is now worth $500 per acre.

We do not think the testimony sustains this defense. ,It is true that the land claimed has greatly enhanced in value; but so also has the land described in the'deed. Berry executed an oil lease on the west half of the northwest quarter of section 33, and, as- appears from what has been said, this lease covered the land described in the deed and is effective as such for the reason that the deed sought to be reformed did not convey any one of the three forties owned by Berry, for, as has been said, that deed described tbe land as being in range 16, whereas it is an ■undisputed fact (that Berry owned no land in that range and did not intend to convey any there.

It is the presence of oil which gives all these three forties their great value. Berry executed a lease, which is valid, for the reason just stated, on the middle forty which his deed described, and which appellants say it was his intention to convey. It is apparent, therefore, that, if reformation is not granted, appellee will be compelled to take a forty incumbered with an oil lease which Berry had no right to execute, if he did in fact convey and intend to convey the middle forty.

The doctrine of laches has therefore no application here. The equity of the case is with appellee, for to deny him relief would permit appellants to enjoy the benefits of the consideration received for a lease on a tract of land which their ancestor had, according’ to their own contention, previously sold and conveyed to appellee.

The decree is correct, and is therefore affirmed.