author: McCulloch, J.

text:
    Hardy v. New Rocky Grocery Company.
    Opinion delivered May 14, 1923.
    1. Exceptions, bill of — agreed bill — sufficiency of approval.— Under Crawford & Moses’ Digest, § 1323, providing that where the parties to an action agree in writing upon the correctness of a bill of exceptions by indorsement thereon, it may be filed, held that when the attorneys on both sides o. k. a bill of exceptions and sign their names, it will be accepted as a correct bill of exceptions.
    2. Appeal and error — matters not included in bill of exceptions. — Where a bill of exceptions as approved does not contain the court’s instructions nor any call for them to be copied, instructions found among the papers and certified by the clerk cannot be considered on appeal.
    3. Principal and agent — unauthorised act of agent — ratification. — Where a landlord signed a -"ote with her tenant to procure supplies for the tenant from one merchant named as payee, and the note was in good faith altered by substituting another merchant as payee, without the landlord’s knowledge, held where the landlord by letter treated the note so changed as being an existing liability, she will be considered to have ratified it, and it is immaterial that at the time of such ratification she supposed that the note had been transferred by the original payee, instead of another payee being substituted.
    4. Landlord and tenant — ratification of tenant’s act — evidence. — Where it was contended that a landlord ratified the substitution of the payee in a note executed by her jointly with her tenant, to secure supplies to be furnished to the tenant, it was competent on the issue of ratification to prove that it made no difference to the landlord where the tenant obtained his supplies.
    5. Appeal and error — necessity of request for restriction of testimony. — Where testimony was admissible for one purpose, but not for another, appellant cannot complain because the court failed to restrict the consideration of the testimony, if no request was made tó that effect.
    6. Landlord and tenant — advances to tenant — evidence.—■ . Testimony of a merchant supplying a tenant that he would not have advanced supplies to the tenant without security was competent to show that the merchant made advances in good faith in reliance upon the landlord’s note executed as security for such advances.

      Appeal from-Little River Circuit Court; James 8. Steel, Judge;
    affirmed.

      Reynolds & Steel, for appellants.
    The court erred in permitting appellees to change their cause of action and sue on the note and also on account for supplies furnished. There is mo testimony showing either that appellant purchased or authorized the purchase of supplies from appellees, nor that she executed the note payable to them. The evidence does not support the verdict. The note was altered after its execution by appellant, the name of the payee being erased and appellee’s name substituted, without appellant’s knowledge or consent, rendering same void as to her. Sections 7890, 7891, C. & M. Digest; 1 Ark. 117; 111 Ark. 263; 113 Ark. 127; 49 Ark. 40; 30 Ark. 186.; 9 Ark. 122; 48 Ark. 426; 102 Ark. 302. There was no assent to or ratification of the alteration by appellant. 7 Words & Phrases, 528-531; 9 Ark. 1922; 73 Ala. 446; Am. & Eng. Enc. 1189; 11 Ark. 189; 29 Ark. 139; 55 Ark. 423. Error, in permitting appellant to be asked if it made any difference to her whether the supplies were purchased from Gathright or appellees, whose name was substituted in the note. Court erred also in admitting testimony of witnesses Pullen and Covington. Instructions 1 and 2 were abstract and misleading. 67 Ark. 593; 76 Ark. 599; 77 Ark. 567; 85 Ark. 390; 88 Ark. 454. Agency. 93 Ark. 600; 80 Ark. 231; 96 Ark. 506; 31 Ark. 212; 46 Ark. 222; 92 Ark. 315. Persons dealing with agent must ascertain nature and extent of authority. 62 Ark. 33; 117 Ark. 173; 55 Ark.' 423. The court should have directed a verdict for appellant in note sued on. Erred in refusing appellant’s requested instructions C to J, inclusive.

      Johnson & Shaver, for appellees.
    There must be an affirmance, since there is no proper bill of exceptions in the case. There is no certificate of the judge, nor does the purported bill contain any of the instructions given or refused. Secs. 1321, 1322, 1323, C. & M. Digest. Not a sufficient compliance with. § 1323 to constitute a bill of exceptions by agreement of counsel. 109 Ark. 120; 100 Ark. 244; 65 Ark. 330; 114 Ark. 261; 112 Ark. 80. Instructions brought up on cer-tiorari cannot be considered part of bill of exceptions. 46 Ark. 482; 45 Ark. 485; 74 Ark. 88; 91 Ark. 443; 101 Ark. 84. This leaves nothing but question of .sufficiency of evidence to support the verdict for consideration here. Appellant signed the note for supplies for her tenants, and the alteration did not release her from liability to pay it. 101 Ark. 135. ¡Burden of proof on appellant to show material alteration. 27 Ark. 108; 102 Ark. 305; 69 Ark. 140; 112 Ark. 83; 191 S. W. (Ark.) 960. Where there is any substantial evidence to support the verdict it wall not be disturbed. 40 Ark. 144; 60 Ark. 250. If note void, recovery may be had on contract of sale. 70 Ark. 200; 97 Ark. 19. There was no error in the introduction of testimony. The judgment is right, and should be affirmed.

      Reynolds & Steel, in reply.
    Bill of exceptions sufficient. Sec. 1323, C. & M. Digest. The O. K. signed by counsel constituted an agreement in writing to the correctness of the bill. Meaning of term “O. K.” 28 S. E. 474; 56 Fed. 570; 90 Ill. App. 117; 133 Ind. 433; 32 N. E. 722; 5 Words & Phrases 4871. The bill of exceptions shows the numbers of the instructions given and refused; identifies them, and the certiorari brings them into the record so numbered. 43 Ark. 391; 45 Ark. 490; 19 Kan. 335; 56 Iowa 520: 46 Ark. 485: 50 Ala. 503; 73 Ark. 49; 89 Ark. 58. Note never delivered to payee and did not become binding on appellant. 84 Ark. 610; 77 Ark. 89.
   McCulloch, J.

Appellant, Mrs. Ida M. Hardy, resides in the city of Little Rock, and she owns a farm, consisting of several hundred acres of land in cultivation, near the town of Foreman, in Little River Oounty. ■ Sbe caused the land to be cultivated by tenants from year to year, and in the year 1920 she rented the land to J. D. Hensley and his son, Osh Hensley. She agreed to assist the Hensleys in obtaining supplies during the year, and on March 27, 1920, she joined them in the execution of- a note for the sum of $800, payable to W.. M. Gathright, a merchant at Foreman, with the agreement that the note should be delivered to Gathright for the purpose of inducing him to furnish supplies to the Hensleys to the extent of the amount of the note, which was made payable on October 1, 1920, with interest. Appellant was living in Little Rock at that time, and the negotiations between her and .the Hensleys were conducted by correspondence, The note was mailed to her, and she signed it and returned it to J. D. Hensley, with authority to deliver it to Gathright. Hensley, after receiving the note, decided to trade with appellee, a copartnership composed of certain individuals doing business under the name of New Rocky Grocery Company, and he took the note to the managers of appellee’s business and opened up negotiations in order to have appellees furnish the supplies. Appellees agreed with Hensley to furnish him supplies to the amount of the note, and there was a change made in the note by erasure of the name of Gathright as payee and the substitution of appellees, under their copartnership name.

Appellees proceeded to furnish supplies throughout the year to the Hensleys, and they instituted this action, after the maturity of the note and refusal of appellant to pay, to recover the amount of the note.

The suit was first instituted in the chancery court, but the court treated a demurrer to the complaint as a motion to transfer, and ordered the cause transferred to the circuit court, where an amended complaint was filed, which, in addition to setting out the cause of action on the note, contained k second paragraph asking a recovery on the account. There was a trial of the case before a jury, and a verdict resulted in favor of appellees. Judgment was rendered accordingly, from which an appeal has been prosecuted.

Time was given by the court for filing a bill of exceptions, and what purports to be a bill of exceptions, with, the approval of counsel on both sides, was filed within the time allowed. Counsel for appellees contend, however, that the bill of exceptions was not properly certified. The bill of exceptions was not signed by the judge, but it was signed by counsel on both sides and marked “O. K. ” The bill of exceptions was designated as such in the caption, and was only certified by the stenographer, who stated in his certificate that it was a correct transcript of the oral proceeding. At the conclusion it is marked in pencil, ‘‘bill of exceptions,” immediately preceding the signatures of counsel, and, as before stated, the signatures followed the designation “0. K”

The statutes of this State provide that a bill of exceptions may be certified in a civil case by agreement of counsel, and we have held that it must be an unequivocal certificate.

We think that the use of the well-bnown term of approval is sufficient to indicate that it was intended as a certificate to the bill of exceptions, which bore the caption as such. This term has a well-known significance. While its origin is in doubt, it is now recognized by lexicographers as indicating unequivocal approval, and we see no reason why the term should not be accepted as a certificate of the correctness of the bill of exceptions. The statute provides no express form in which the approval shall be manifested, and any word which clearly indicates the intention of the parties to agree upon the instrument as a bill of exceptions, or history of the trial, will be accepted as such. We therefore accept the bill of exceptions as approved, as far as it goes.. There are, however, many exceptions presented here with reference to the court’s charge,-but the bill of exceptions, as approved, does not contain the instructions nor any call for them, therefore we are not at liberty to consider these exceptions. It is true that on certiorari appellant has brought up, under certificate of the clerk, instructions found on file with the other papers in the case, but, as before stated, there was no call in the bill of exceptions for these instructions, and they cannot be considered as a part of the bill of exceptions. Newton v. Russian, 74 Ark. 88. All of the assignments of error with respect to the instructions must therefore fail.

It is earnestly contended, however, that the evidence is not sufficient to sustain the verdict, .and this question is properly presented, for the evidence is fully set forth in the bill of exceptions, and in the motion for a new trial the question of the insufficiency of the evidence is properly raised.

Appellant contended, and so testified, that, while she joined in the execution of the note to be delivered to Gathright, she did not authorize the erasure of Gath-right’s name and the substitution of appellees’ as payees in the note, that she did not have any knowledge of the substitution until after the maturity of the note, and that she did not ratify it. She testified that she did not enter into any obligation with appellees in any other form to pay for supplies furnished to her tenants.

It is undisputed that appellant did not authorize the substitution of appellees as payees in the note, and that she did not know of the change at the time, and intrusting to Hensley the custody of the note, with authority to deliver it to Gathright, the payee, did not carry with it apparent authority to change the name of the payee. The change was apparent on its face, and it is undisputed that appellees knew of the substitution. There is a little conflict in the testimony as to the circumstances under which the substitution was made, but it is undisputed that the change was made in a conference between Hensley and witness 'Covington, who was then a member of the firm. According to Hensley’s testimony, he proposed to Covington that the note be returned to appellant and that a new note be obtained from her, payable to appellees, but Covington said that it'would be hnnec-essary to do that, that, it would be just as easy to erase Gathriglit’s name and substitute appellees’ as the payees, and that this was done. Covington testified that Hensley authorized hin-n to make the substitution. We think, however, that the evidence is sufficient to sustain the finding that appellant, with knowledge of all the facts, had ratified the substitution of appellees as payees of the note. Appellees furnished to the Hensleys supplies to the extent of the note, and about the time the note matured, or at least a few days afterwards, appellees wrote to appellant notifying her of the maturity of the note, and calling on her for payment. The letter is not brought into the record, but appellant was examined with reference to it, and it is fairly inferable from her testimony that she was apprised of its contents, to the effect that ap-pellees were holders of the note that she had signed, and that, with this knowledge, she ratified the act of substitution. She immediately replied, in a letter to appellees, acknowledging receipt of their letter, and, after making some reference to the crops of the Hensleys, she made this statement: “I am not able to pay anything now myself, so you will look to him for pay. I did not know the note was due yet. You surely can wait until he gathers his crop and let him pay as he gets his cotton out. Let me hear from you how he gets on. ’ ’

There was other correspondence, which shows that appellant was treating the note as a valid liability. Letters were written by her husband, 'which she says were not expressly authorized, but it is a .fair inference to be drawn from the testimony that she intrusted her business to her husband, who wrote the letters. The letter referred to above, however,, was written by appellant herself. She states that at the time she wrote this letter she did not know of the erasure and substitution of ap-pellees as payees, but supposed that the note had been transferred by Gathright.

According to the evidence, the substitution was made innocently and without any intention to perpetrate a fraud, and for the sole purpose of securing supplies for appellant’s tenants. Tlie parties, in making the erasure and substitution, clearly intended merely a method of transferring the note from Gathright to appellees.

If appellant, with knowledge that appellees had furnished supplies to the Hensleys on the faith of this note, ratified it by treating it as an existing liability on her part, it is unimportant that she supposed at the time that the note had been transferred by Gathright, instead of the name of appellees being substituted.

There are several assignments of error with respect to the admission of testimony. The first one is that the court erred in permitting appellees to ask appellant the question whether or not it made any difference to her where the Hensleys obtained supplies — whether they obtained them from Gathright or from appellees. We think this testimony was competent for the purpose of showing appellant’s state of mind with respect to the ratification. In other words, it was competent to show, in determining whether or not she ratified the substitution, that it was a matter of indifference to her whether the tenants obtained the supplies' from Gathright or appel-lees. Moreover, the answer of appellant to the inquiry completely dissipated any prejudicial effect which the inquiry might have had, even if it was incompetent. She replied to the inquiry by stating that she preferred to deal with Gathright because she liad met him and had had a talk with Gathright prior to the execution of the note.

Again, it is contended that error was committed in permitting witness' Covington to state that the erasure in the note and the substitution of appellees as payees was made at the suggestion or request of Hensley. This was competent as tending to show that the substitution uvas innocently made and without intention to defraud, and under an assertion of authority by Hensley to act for appellant. It was not competent as substantive evidence of any authority on the part of Hensley to direct the change to be made, but, if appellant desired a re-. striction to be put upon the consideration of tbe testimony to a particular purpose, a request to that effect should have been made. It does not appear from the record that any such request was made, and we do not think there was any error in this respect.

Another assignment relates to the admission of the testimony of the witness Pullen, one of the appellees, to the effect that they would not have advanced supplies to .Hensley without security. This was competent to show that appellees advanced the supplies in good faith and upon the honest belief that they were holding the note executed by appellant as security for the debt.

There are other assignments not of sufficient importance to discuss, and, on the whole, we find no error in the record, and the judgment is affirmed.

Hart, J., dissents.


source: Caselaw Access Project

author: Smith, J. McCulloch, C. J.,

license: Public Domain

text:
    Perdue & Hill v. Road Improvement District No. 1.
    Opinion delivered May 14, 1923.
    1. Highways — impRovement district — right to suspend wore.— Where a contract for the construction of a road provided that the engineers “may stop the work for such period as they may deem necessary because of unsuitable weather or such other conditions as are considered unfavorable for the prosecution of the work,” the action of the engineers in stopping the work was not a breach of the contract unless it was done arbitrarily or in bad faith.
    2. Highways — improvement district — abandonment—anticipated profits. — Under a contract for the construction of a road which stipulated that if the contractor refused to prosecute the work the cost of completing the work shall be deducted from any moneys due or that may thereafter become due the contractor, but that, if the expense incurred by the district “shall be less than the sum which would have been payable under the contract if it had been completed by such contractor, then the contractor shall be entitled to receive .the difference,” held that where the cost of completing the road was less than the contract price the contractor who abandoned the work was entitled to the amount of the difference.

      Appeal from Cross Chancery Court; A. L. Hutchins-, Chancellor;
    affirmed.

      Caldwell, Triplett & Ross, for appellants.'
    The chancellor erred in finding that the contractors breached the contract. The district so harassed, obstructed and unnecessarily delayed the contractors in the work of construction as to justify the contractors in abandoning the work on account of expense entailed, not contemplated of the time the contract was made. It was a breach of contract to arbitrarily estimate and pay the contractors for work done in December and January upon a basis of 3,300 pounds of gravel to the yard, notwithstanding entered into by the district and appellants in conformity with a requirement of the proposal to do the work, fixing the measurement of a yard of gravel at 2,800 pounds. The contractors were arbitrarily suspended on Jan. 20, 1921, and suspension was permanent, and not contemplated by the contract, was not justified on .account of unfavorable weather conditions, was without their consent, and such an interference with the contract as to constitute a breach of it, regardless of the obvious purpose of defendants to force the contractors to give up the contract and to relet it to Newell. The indefinite suspension of January 10 without prospect of resumption of work within a reasonable length of time was in itself a breach. A suspension of work can only be had for the causes specifically provided for in the contract. 68 S. E. 124; 67 W. Va. 503. The contractors did not agree to the suspension, nor did the weather conditions require it, and it constituted an actionable breach. 93 Ark. 477; 39 Sup. (U. S.) Ot. 102; 178 Pac. 906; 175 Mo. App. 165; 157 S. W. 811; 56 Pac. (Mont.) 316; 34 Wash. 238; 75 Pac. 815. • They were entitled to anticipated profits as damages also, as well as expense of men and team® during suspension of work, for excavators’, shortages, etc., and interest from May 1,1921, the date proof shows appellants would have finished contract.

      tí. W. Ogan and Killough, Lines & Killough, for appellee.
    There are, as stated by appellants, practically no issues in this case except those of fact. There was no conspiracy on the part of the commissioners and their employees to take the contract from appellants .and relet it to Newell or others. The board had the right to suspend the work, under the terms of the contract, on account of bad weather conditions which required it! The method for determining measurement of gravel was not definitely agreed on before the beginning of work, and it could be thereafter correctly ascertained as was attempted to be done. The appellants breached the contract by refusal to resume work under notice of April 30, 1921, from the board requiring them to do so. The contractors, having breached the contract and abandoned the work, are certainly not entitled to anticipated profits. On cross-appeal it is insisted that the allowances to the contractors are excessive and erroneous.
   Smith, J.

Eoad Improvement ■ District No. 1 of Cross County was organized in 1917 under the Alexander road law for the construction of an improved road from Wynne, at Station 0, to the Crittenden County line at station 980+35. For some reason the improvement was not completed as planned, but, after the road had been built from Wynne to what is known as the “Bay,” an arm of the St. Francis Eiver, at station 405+85, the work was discontinued.

At the special session of the General Assembly of 192Ó an act was passed for the relief of this district, which, among other things, appointed new commissioners, who advertised for bids for completion of the road. Appellants were the lowest bidders, and in April, 1920, a contract was awarded them for the construction of the road.

' In their proposal to do the work appellants inserted a provision that the method of determining the measurement of a yard of gravel should be agreed upon ■between themselves and the engineer of the district before beginning the work; and appellants insist that such an agreement was made, and that it was agreed that a yard of gravel should be fixed at 2,800 pounds, railroad weights.

It is undisputed that the parties had agreed to fix the rate which should constitute a yard of gravel, but it is denied by the district that a final agreement had ever been reached. This became a very important question in the litigation which arose between the contractors and the district, and the court found in favor of the contractors, and the district has appealed from that finding.

The contractors entered upon the work and proceeded with its construction, and were thus engaged when, on January 20, 1921, they received a notice from the engineer of the district reading as follows':

“ Wynne, Ark., Jan. 20, 1921.
“Messrs. Perdue & Hill, "Wynne, Ark.

“You are hereby notified that you will not be called on before the first of May, 1921, to resume your work under your contract with Road Improvement District No. 1 of Cross County. This does not mean that you will be authorized to resume work upon that date, but only that you will not be called upon before that time, the idea of the board being to suspend work until after the expiration of unfavorable weather conditions.

‘ ‘W. S. Newsum, Engineer. ’ ’

This notice suspended the work, and this litigation, which grew out of it, must be decided by a consideration of the conditions under which, and the purpose for which, the notice was given.

The contractors assert this notice' was a breach of their contract, and afforded ample justification for this litigation. Of it we shall have more to say.

' • By this suit the contractors seek toYecover for work and labor performed under the contract, and for damages for its alleged breach, and there is a counterclaim by the road district to recover certain construction costs in completing the improvement.

The big question in the case is, Who breached the contract? And the court below decided that question in favor of the road district. Other questions grew out of this one, some of which were decided in favor of the contractors, while others were decided in favor of the ■ road district; and the contractors have appealed, and there is a cross-appeal b}^ the road district. These other questions will also be discussed.

The record is remarkable alike for its size and for the numerous irreconcilable contradictions in the testimony, and the conclusion one reaches depends entirely upon the testimony which is credited and accepted. The contractors present a story of wrong and oppression. They insist that the engineer of the district had colluded with certain of the commissioners, if not all of them, to so oppress them (the contractors) that they would be compelled to surrender their contract. It is asserted that the purpose of this oppression and corrupt plan was to give the work to another contractor, who was a favorite of one of the engineers and one of the commissioners.

We will not set out the testimony of the numerous witnesses, but we will give a summary of it. According to the contractors, the district’s engineer was incompetent, inefficient and inattentive, and was rarely on the job. According to the engineer, he was over the job personally every other day, and the cause of the friction between himself and the contractors was not inattention but his assertion of the district’s rights.

The contractors say the plans of the improvement were incomplete and insufficient, and were especially defective in failing to provide drainage. They also say the engineer did not furnish sufficient and proper grade stakes.

The plans complained of were' those on which the contractors had based their bid, and they no doubt had the opportunity to familiarize themselves with these plans before bidding. The engineer testified that the plans were not defective, and no delay occurred on that account; and, in regard to the grade stakes, the testimony on the part of the district is to the effect that no complaint on that account was ever made except upon one occasion, and the engineer was then nailed upon the carpet by the board, and explained that there were stakes at all places where he wished the work done, but the contractors were insisting on working at another place where there were no grade stakes.

The district appears never to have been satisfied with the weight agreed upon as constituting a yard of gravel, and, while it is admitted that there was an agreement fixing 2,800 pounds as a yard, it is insisted that this agreement was tentative and subject to correction, and that it was later ascertained that 2,800 pounds did not make a yard. On November 8, 1920, the engineer wrote the contractors that he had made a test of a car of gravel, and that a mistake had been made against the district, and the contractors were asked when they would be ready to join in an accurate test. The contractors answered this letter the next day, and stated in their reply that they were not interested in the subject, as 2,800 pounds had already been agreed upon as the weight of a yard of gravel, and estimates had been given and paid upon that basis, and they regarded the question as settled.

This is a very important item, but, without further re'cital of the testimony in regard to it, we announce our concurrence in the finding of the court below that 2,800 pounds of gravel constituted a yard, .under the contract and agreement of the parties.

This and certain other contentions between the contractors and the engineer had resulted in friction and disagreement between them, and the contractors say. they had become convinced that the'engineer was not acting in good faith with them, and intended, by his ex-, actions, to drive them off the job, and that he had the active support of some, if not all, of' tlie commissioners in accomplishing that result. It .is ctintended that the notice set out above was a part of this plan, and was given for the purpose of depriving the contractors of the opportunity to earn the profit which compliance with the contract would have given them.

The testimony does show that construction costs had fallen materially between the date of the engineer’s notice to them and the contract, and it is very earnestly insisted that the testimony also establishes the-following facts: that the suspension of the work was unnecessary; that the reason assigned (the condition of the weather) was a mere subterfuge. In this connection, it is pointed out that the contractors were put to work in June following a month of unusual rainfall, and they were taken off the work following a period when the precipitation had been below the average for the preceding month. The records of the weather bureau show that November, 1920, had less rainfall than any November for three years preceding. The rainfall for December, 1920, was 6.48 inches, which was 1.70 inches above the average, but of this December rain 2.40 inches fell on December 22 and 2.30 inches fell on December 26.

The contractors also insist that the tesitimoiry not only shows that it was unnecessary to suspend work at all, but that it was wholly unnecessary to suspend for the long period intervening between January 20 and May 1, and that the engineers must have known, and did know, that the suspension would be very expensive to them, and would, in effect, drive them from the job, and did have that effect.

The commissioners and engineers denied categorically that they had airy purpose of driving the contractors from the job. They admit the contractors were put on the job following a spring of unusual precipitation, but they say this was the season when the soil finally dries out.

The testimony does not impress ns that January is a better month than June to Tguild roads in the St. Francis bottom. Commissioners who had lived in that district for fifty 3rears ur more testified that the soil was largety gumbo, and that when it becomes thoroughly saturated in winter, it did not dry out until the spring, and they testified that it was after conference with the contractors that May 1 was fixed as the earliest date when the work could be resumed.

The testimoi^ on the part of the district is to the effect that the commissioners understood the contractors were not objecting to the suspension of the work, but we are of opinion that the contractors did not consent. In fact, we think their attitude was one of protest against the suspension. However, we accept the statement of the commissioners that the3r did not understand the contractors had taken the position that the suspension of the work would be treated as a breach of the contract. The testimony shows that the commission- ■ ers had determined at the meeting of the board on January 10 to suspend the work, but had not then determined the period of suspension. The contractors frankly concede that the3r went to the board meeting on January 20 for .the purpose of fortifying themselves for the prosecution of the litigation which they had alread3r decided to institute. They admit this was their purpose, and to that end they brought their attorney to the meeting, but they sa3r they did this because they had become convinced that litigation had become inevitable.

.We have carefully considered the testimony in regard to the meeting of January 20, for it is upon the happenings there that the contractors predicate their cause of action. They say it was then and there the district breached the contract.

We have said that the contractors did not asseut to the suspension of the work, but we are equally as certain that their never advised the commissioners, or the ■ attorney for the district, who also attended the meeting of January 20, that they would treat the suspension of tlie work as a breach of the contract. It may he that the commissioners would have ordered the suspension of the work even though the contractors had stated their position candidly, but their failure to say they would treat the suspension of the work as a breach of the contract does appear, in a measure, to support the contention of the commissioners that the suspension was ordered by the consent of the parties.

The attorney for the road district testified that he understood the contractors preferred to proceed with the work, hut he did not understand they would treat the order of suspension as a breach. In fact, when the attorney for the contractors stated that they wanted the order of suspension in writing, the attorney for the district wrote up an agreement to that effect, and the district’s attorney testified that the objection made to what he had written was that it appeared to he by consent, and this would not be satisfactory to the surety company which had made the contractors’ bond, and that company would not agree to the suspension except upon the order of the district. Thereupon the attorney for the contractors dictated to the attorney for the district the notice set out above, the same being written as dictated, on the typewriter.

There are charges and countercharges of lack of candor and good faith. The contractors frankly admit that they had this notice so prepared as to serve their purpose in the litigation which they had already determined to bring. We think, under the circumstances, they should have stated that they would treat the suspension of the work as a breach of the contract.

The commissioners testified that they did not intend to discharge the contractors, and that they never suspected the contractors would not complete the work when called upon to do so, until they were served with summons notifying them the district had been sued. There was offered in evidence a letter from the engineer to the contractors dated Feb. 21, 1921, in regard to spreading gravel on a certain part of the road. The contractors replied to this letter in one dated March 3, 1921, in which they stated that the hoard had taken from them any liability or discretion, and on that account they declined to act on the board’s request; but not even in that letter was it stated that the contractors considered the contract at an end.

As soon as the notice of suspension had been delivered, the contractors repaired to Little Rock, where they emploj^ed three civil engineers to go over the district. These engineers immediately went over the district, and all testified that, in their opinion, the order of suspension was not justified by the condition of the road on which the contractors were, proposing to place gravel, or on account of the state of the rveather. The contractors insist that this testimony shows the weather had nothing to do with the suspension.

This testimony is by no means undisputed. Many landowners in the district testified that the road had become a long mud-bed, and in many places had become nearly impassable, and at once plhce for about a mile had become entirely so, and that, to enable the people to travel the road with any degree of safety from Prince-dale to Parkin, two points on the road, would have required the road to be planked like a bridge for a distance of two or three miles, and in some places this was done to make the road passable.

The commissioners insist their action in suspending the work, under the facts stated, was justified by a clause of the contract which reads as follows: “Temporary SUSPENSION op WORK. The board of engineers may stop the work, wholly or in part, for such period or periods as they ma3?' deem necessary because of unsuitable weather, or such other conditions as are considered unfavorable for the prosecution of the work, or for such time as they may consider necessary because of the failure on the part of the contractors-to carry out orders given,” etc.

This clause is in the contact, and we cannot refuse to give it effect. Of course, this clause did not authorize the commissioners to act arbitrarily or in bad faith; but, if their action in ordering the suspension was not arbitrary or in bad faith, the suspension of the work was not a breach of the contract. It could not be a breach of the contract for the commissioners to do a thing the contract authorized them to do; so if, in good faith, they did conclude that the conditions were too unfavorable to continue the work, they were within their rights in ordering the work suspended. Williams v. Board of Directors, 100 Ark. 166; Drainage District v. Kochtitzky, 146 Ark. 494; Lewelling & Price-Williams v. St. Francis County Road Imp. Dist. No. 1, 158 Ark. 91; LeRoy v. Harwood. 119 Ark. 418; Whitener-London Realty Co. v. Ritter, 94 Ark. 263; Hot Springs Ry. Co. v. Maher, 48 Ark. 522.

We do not think the testimony supports the appellants’ contention that the commissioners did not act in good faith, and we conclude therefore that the suspension of the work did not constitute a breach of the contract. The chairman of the board testified that he said to one of the contrators, “You know I would like the best in the world for you all to stop until spring,” and the contractor answered, “I think it is a good thing myself, but you need not say anything about it, or what I said, for I will deny it. Don’t tell anyone I told you that.” The contractor with whom this conversation is said to have occurred did not deny its occurrence.

On April 30 the engineer notified the contractors to resume work, but they did not do so, and they seek to excuse their failure to do so by saying that they did not believe the notice had been given in good faith.

One of the commissioners was asked: “Did not the board get this letter along about the 5th of May, asking, if they resumed work, what the board would do about the • matter of determining gravel weights ? ’ ’ and answered: “I dp not remember; the board might have got it.”

The letter was not produced and does not appear in the record, and we do not know its contents, hut nothing else appears anywhere in the record about it. We do not understand this letter gives any support to the proposition that the contractors would have returned to work if the commissioners had waived their position in regard to gravel weight. They nowhere say they would have done so. On the contrary, they admit the purpose then existing to sue the district in equity. In fact, they had instituted a suit at law on March-, 1921, and had on April 20 taken a voluntary nonsuit with the expectation of suing in equity.

The court gave the contractors judgment for the retained percentage, and this we affirm. The court found that tile gravel should he paid for on the basis of 2,800 pounds to the jard, and this we approve. The court allowed $108.51 for unestimated excavation, and this we approve, although the contractors say it should he more, and the commissioners say nothing should he allowed on that account.

We concur also in the other .findings of the court, which we think require no discussion, except an item of $3,903.03, designated, as difference in construction costs.

Appellants say the testimony shows their anticipated profits were $28,861.79, and that they should have a judgment for this amount in addition to the other allowances made them by the court, amounting in all to $42,515.83. ■ The answer to this insistence is that they did not resume work, pursuant to the notice of April 30, and thereby earn the profits for which they now seek judgment.

But, notwithstanding the fact that we think anticipated profits were properly disallowed toy the court below, we think the court properly allowed the contractors the item for difference in the cost of construction.

. This seemingly anomalous result arises from section 61 of the contract, which reads as follows: “ANNULMENT or contract. Should the contractor fail or'refuse to begin work under contract within the time specified, or fail or refuse to prosecute the work with sufficient rapidity and with such materials and equipment as, in the opinion of the engineer, is necessary to complete the work within the time specified, tlie engineer shall be empowered, ten days after he has given in writing a notice to the contractor and his surety, to secure such additional labor, equipment and material as may be necessary to properly proceed with the work. The cost thereof shall be deducted from any moneys due or that may hereafter become due the contractor. In case the expense so incurred by the board shall be less than the sum which would have been payable under the contract if it had been completed by such contractor, then the contractor shall be entitled to receive the difference; and in case such expense shall exceed the sum which would have been payable under the contract, then the contractor and the surety will be liable and shall pay to the State or board, as the case may be, the amount of said excess.”

This provision of the contract can have application only in the event of the failure of the contractors to comply with the contract in the particulars stated, and the parties have stipulated what the recovery shall be in that event. By this stipulation it is provided that, if the conduct of the contractors shall result in the annulment of the contract (the situation we have here), the district may complete the work, and charge the cost thereof to the contractors and their surety; and, to make the provision reciprocal, it is also provided that, if the cost of doing the work is less than the contract price, the contractor shall be entitled to the difference.

In other words, it is the purpose of this section of the contract to held the contractors and their surety liable for the cost of completing the work upon the failure of the contractors to complete it, even though this additional cost should run the total cost to a sum in excess of the contract price, with the reciprocal provition that the 'Contractor shall he entitled to receive the difference, if the cost does not exceed the contract price.

This section of the contract is, in effect, a stipulation as to what the measure of damages shall be in the event the contractors do not complete the work; and we perceive no reason why the parties might not contract against that contingency.

Chief Justice McCulloch: does not concur in this view, it being* his opinion that the district should not be charged with this item of difference in cost of construction; but Justices Wood and Humphreys do concur with the writer and Justice IIaRt on this item and make the opinion, although Justices Wood and Humphreys dissent on other features of the case, they being of the opinion that the suspension of the contractors constituted a breach of the contract, but on that question the Chief Justice joins with Justice Hart and the writer in making the opinion of the court.

■ Upon the whole case Ave think the decree of the court below was correct, and avg therefore affirm it.

McCulloch, C. J.,

(dissenting in part). I am unable to concur in the vieAV that appellants, if they broke the contract by altogether quitting work without good cause, are entitled to recoAmr anything on the Avork Avhich- the district caused to be done by another contractor after such breach Ava-s committed.

The principle is Avell established that the party who breaks a contract cannot make it the basis of an action to recover compensation under it, or otherwise make it the basis of an action against the other party. Jerome Hardwood Lbr. Co. v. Beaumont Lbr. Co., 157 Ark. 220. The provision of the contract Avas not intended, I think, to disregard that well-settled principle, but was incorporated in the contract for the protection of the district. The contract merely authorized the district to complete the work' — it was not obligated to do so. To use the language of the Supreme Court of the United States iii construing a somewhat similar stipulation in a Construction contract with the government: “The stipulation is made for its 'benefit, and, being optional in form, cannot be construed into a covenant in favor of the defaulting contractor.” United States v. U. S. Fidelity & Guaranty Co., 236 U. S. 512.

The majority of the court concede that the effect of the contract, as construed by them, brings about anomalous results that are in conflict with settled principles of law, and I think that this demonstrates that the construction is erroneous. The language is not sufficiently definite to compel the conclusion reached by the majority, therefore that construction should not be adopted so as to overturn settled principles of the law.


author: Wood, J.

text:
    Selman v. State.
    Opinion delivered May 21, 1923.
    1. Homicide — RES gestae — instructions:—While the declarations of the accused to third persons immediately prior to the alleged shooting were competent as part of res gestae to show the motive or state of mind of the accused, it was not error to instruct the jury, in view of testimony on the part of the State, that “you have a right to judge whether the accused was sincere in the avowal of his purpose or merely made such statements in order to provide testimony in his favor in case of need.”
    2. Homicide — voluntary manslaughter — instructions.—A requested instruction that “if you find from the evidence that the defendant shot deceased under the belief that he was about to be assaulted by the deceased, but that.he acted too hastily and without due care, and for that reason was not justified in taking the life of the deceased, in the absence of malice, he would at most only be guilty of manslaughter,” held properly refused, as being argumentative and as implying that defendant might be guilty of a lower grade of homicide than voluntary manslaughter.
    3. Criminal law — invited error. — Where defendant introduced incompetent evidence as to a collateral matter, he cannot complain because the State introduced rebutting, evidence of a similar character.

      Appeal from Sevier Circuit Court; B. E. Isbell, Chancellor;
    affirmed.

      Lake & Lake and J. 8. Steel, for appellant.
    The court erred in giving instruction numbered 25 as requested for the State. Cornelius v. State, 12 Ark. 782. It was an instruction on the weight of the testimony. Sec. 23, art. 7, Constitution; 133 Ark. 314; 154 Ark. 75. Court erred also in refusing to give appellant’s renuested instruction No. Ó. 102 Ark. 180’; 110 Ark. 402; 74 Ark. 444. Prejudicial error was also committed in permitting the letter of Oct. 12, 1922, to be introduced in evidence.

      J. S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.
    No error committed in giving instruction No. 25. Cornelius v. State, 12 Ark. 786. Res gestae. Wharton on Evidence, 258, 267; 58 Ark. 168; 3 S. W. (Ark.) 51; 157 Mon.; 31 N. E. 961; 2 L. B. A. 235; Words & Phrases, 6136. Appellant’s requested instruction No. 0, refused, was not a correct statement of the law. 74 Ark. 461; 113 Mo. 670; 107 Mo. 36; 52 Ark. 345; 77 Ark. 474; 95 Ark. 409; 106 Ark. 8. If error committed in allowing introduction of letter, it was invited.
   Wood, J.

G. G. Billings, a lawyer living in the city of DeQueen, Arkansas, whose office was situated upstairs in what is designated as the Tobin building, on the morning of September 21, 1922, was shot and killed in his office by Boy Selman. Selman was indicted for the crime of murder in the first degree for the killing of Billings, and was tried and convicted of murder in the second degree, and sentenced, by judgment of the court, to imprisonment in the State Penitentiary for five years, from which judgment he appeals.

Mrs. Billings, who assisted her husband in the office work, was in the office on the morning of the killing. Selman was in the office that morning about fifteen minutes before the shooting. He left the office, stating that he was going to the courthouse. While he was in the office, fie showed no feeling of anger toward Billings. Mrs. Billings beard her husband asking Selman if fie had come up there for trouble, and Selman replied, “No,” that lie was not looking for trouble. After fie left the office she took her baby and went to the drugstore, and while standing just outside the drugstore heard that her husband was shot. She ran to the office, and found him sitting in the chair where she had left him. There were two shots in his neck, one almost in the center and the other through the collar, and one' finger of his right hand was almost severed. Billings said, “B-oy Selman walked into the room and says, ‘I have got the dope for you,’ and shot me twice.” She asked Billings what he said to Selman, and Billings replied that he didn’t say anything —that Selman didn’t give him time.

Another witness, who heard two shots fired, in a few seconds thereafter saw Selman emerge from the Tobin building and go towards the courthouse. He saw Selman hand his pistol to another party. Witness asked him what was the matter, and he replied that he had shot Billings. He said: “I started in to see him, and he made for his old gun, and I shot him.” Witness went up to Billings’ office and found him sitting in a rocking-chair, with two bullet wounds in his neck. He spoke to witness and said, “Tom, he has killed me.”

Several witnesses who went into Billings’ office immediately after the shooting' testified to the effect that Billings said that when Selman came in he said, “T have got the drop on you,” and shot me. One of these witnesses, Abe Collins, a lawyer living at DeQueen, stated that when he went into Billings’ office he found Billings sitting in his rocking-chair with his head thrown back. Billings said, “Roy Selman has killed me.” Two or three minutes after this they put Billings on a stretcher and he assisted in carrying him to the hospital. While carrying him he asked Billings what he had done to Selman, and Billings replied, “Tried to collect a debt.” Witness then asked Billings, “What did you do to try to collect the debt?” and Billings replied, “Garnish.” Billing's told witness, in the conversation, that when Sel-man' came in the office he said, ”1 have got the dope on yon, or dope for yon.” Witness asked Billings if he did anything or attempted to do anything to Selman, and Billings replied, “Not a. thing.” Billings died about an honr thereafter.

Other witnesses testified to the effect that they heard Billings say that Roy Selman shot him and had killed him. One of the witnesses stated that he heard Billing say that Roy Selman had made the second trip to his office; that he came to the door the second time and Billings invited him in. He stepped in and said, “I have got the dead wood on you and, d- you, I am going to use it.” Another witness, who was rooming in the Tobin building, just across from Billings’ office, was sitting in his room when he heard the shots, and just prior to the shooting he heard some one come up stairs and go to Billings’ room, and heard Billings say, “Come in.” Then the door slammed, and the two shots were fired.

Another witness, who was on a telephone pole where he could look into Billings’ office, stated that he just hap-pended to look over in the window, and just as he did so he saw something.bright up there, and saw Billings sitting in the chair, and saw whoever it was in front of him with the bright gun. He saw the gun flash twice and Billings sitting in the chair when the first shot was fired. When the first shot was fired Billings jumped out, and when the second shot was fired he jumped back in his chair.

The appellant testified in his own behalf, and, after relating various conversations and controversies he had had with Billings concerning the claims of parties against appellant that had been put in the hands of Billings for collection, stated that Billings had in his hands the claim of one McKinney. He had paid Billings twenty dollars on this claim. Billings denied this, and said to witness, “I am darn tired of fooling with yon.” Billings said concerning this claim, “That is one debt yon are going to pay.” Appellant told Billings that if he would give him credit for the $20 he had paid him, he would give him an order for ten dollars out of every two weeks’ wages until the whole debt was paid, but that-he could not pay it at that time. Billings replied to this, “That is one debt you are going to pay. I will send two or three of you sons of a b-s to hell.” Appellant made no reply to this statement. Appellant stated that he had been to Billings’ office that morning to see him about this claim. He told Billings that he had been summoned. Billings told him to go and get the summons and bring it to him. Appellant went out and found it where he had dropped it, and, after a short conversation with one McCowan, whom he met on the street, in which conversation nothing was said about Billings, he again started up to Billings’ office to carry the paper. When he got to the office the door was closed. He knocked on the door, and Billings told him to come in. He walked inside and closed the door. He had the paper in his left hand. He took two steps and said: “Here is that paper for you.” Billings came over like this (demonstrating) and said, “You son of a b--, I have fooled with you the last time I am going to.” When Billings made that remark he moved toward the drawer of the desk. Appellant jerked his gun out and fired twice. He shot Billings because he thought Billings was preparing to shoot him with a pistol. Appellant had seen a gun in the drawer once or twice before that, and he thought Billings was trying to get it. During all the conversations with Billings the appellant was not mad and used no angry word toward him. He shot at Billings’ hand, thinking that would stop him. The shots were fired abo.ut as close together as a double-action could be fired.

Appellant’s testimony further shows that he was employed by the Kansas City Southern Railway Company, working as night-watchman at the roundhouse. In the performance of his duties as a guard at the roundhouse he had a pistol, and that was the pistol with which he shot Billings. He had been carrying it home with him when he was off duty.

Various witnesses testified on behalf of the appellant as to his conduct on the morning of, and prior to, the killing. One witness, Irwin, a justice of the peace, stated that Selman came to his office on that morning about 7:15 and stated the facts to him with reference to garnishments that had been issued on the McKinney and Tobin claims against appellant. Irwin had succeeded McKinley as justice of the peace, and he prepared certain papers for Selman, reciting that no judgment had been rendered by McKinley against Selman on the McKinney claim.

The attorneys of the appellant, with whom he had consulted on the morning of the killing in regard to the claims that Billings had in his hands for collection, testified to the effect that at the time appellant was consulting with them he talked in an ordinary tone of voice and did not show any malice or anger toward Billings. The testimony of other witnesses on behalf of the appellant was to the effect that they hea] d Billings, in the conversation with reference to these claims, make the remarks which appellant testified that he did malee, showing that he was angry with appellant, and that appellant made no reply to the angry remarks of Billings, and did not manifest any anger himself. On the contrary, two of the witnesses stated that he was not mad at all, and one of them stated that he seemed to be in a good humor. There was testimony tending to show that Billings, shortly before the killing, stated that he had a pistol in his drawer that he kept for fellows that got unruly in his office, and he indicated the drawer right by his side in which he said he kept it. There was testimony that the pistol had been seen in this drawer the Satur-da3r before the shooting and the Thursday before the shooting. Witnesses for the State had testified that there was no pistol in the desk drawer in Billing’s’ office.

The above states substantially the material facts which the testimony for the State and the appellant tended to prove. The court instructed the jury on the law of murder in the first and second degree, and also on the law of self-defense. The motion for a new trial contained forty-one assignments of error, but learned counsel insist here upon only three of these.

1. The first ground urged for reversal of the judgment is that the trial court erred in giving instruction No. 25, requested by the State, which is as follows: “You are instructed that declarations of the accused to third persons immediately prior to the alleged shooting are competent evidence to show the motive or state of mind of the defendant, but, in accepting such testimony, you have a right to judge whether the accused was sincere in the avowal of his purpose or merely made such statements in order to provide testimony in his favor in case of need.”

The testimon}^ as to the conduct of the appellant immediately preceding the killing, to the effect that he had expressed no ill-will on that morning against Billings and that he was in a good humor, and that he went to the office of Billings on a peaceful mission, was allowed to go to the jury without objection on the part of the State. The court admitted this evidence on the theory that it was a part of the res gestae. The pertinent inquiry was whether or not appellant’s visits to Billings’ office on the morning of the killing were on the legitimate and peaceful mission of consulting with him about the claim which he had in his hands for collection against the appellant, or whether these visits were to avenge what he conceived to be a wrong done him by Billings in persistently pursuing him by suits and garnishment of his wages for the collection of these claims. The testimony, under the circumstances, was relevant only to prove motive or the absence of motive and appellant’s state of mind at the time of the killing, and the court, properly so limited it. Appellant’s declarations concerning the summons and Avrits of garnishment pertaining to the claims which Billings had in his hands for collection, and his conduct and appearance while discussing these claims with Billings on that morning, and his declarations, conduct and appearance while talking with others preceding the killing, were so closely connected to the killing in time, and apparently so free from any self-serving purpose, that the court properly admitted same as tending to illustrate and explain the motive of appellant-in going to Billings’ office. Cornelius v. State, 12 Ark. 782-805. See also Prewitt v. State, 150 Ark. 279; Sneed v. State, ante p. 65. But, in the light of what happened — the killing of Billings by .appellant, under the circumstances which the testimony of the State tended to prove — it was for the jury at last to determine whether the declarations of appellant, tending to prove that his mission was peaceful, were truthful and his acts sincere, or whether they were only simulated for the purpose of disguising a motive to kill.

The instruction of the court was not an instruction on the weight of the evidence, and it did not invade the province of the jury, but, on the contrary, left the jury to determine, upon the consideration of the testimony, what the real motive of the appellant was in going to the office of Billings. The ruling of the court in granting this prayer for instruction was in harmony with the law as announced by the court in Cornelius v. State, supra.

2. The appellant next contends that the court erred in refusing to give his prayer for instruction numbered “O” as follows: “If you find from the evidence that the defendant shot deceased under the belief that he was about to be assaulted by the deceased, but that he acted too hastily and without due care, and for that reason was not justified in taking the life of the deceased, in the absence of malice, he would at most only be guilty of voluntary manslaughter.”

Learned counsel for appellant in their brief say: “In this instruction the jury were told-that if they should find from the evidence that defendant shot deceased under the belief that he was about to he assaulted by the deceased, hut that he acted too hastily and without due care, and for that reason was not justified in taking the life of the deceased, in the absence of malice he would only he guilty of voluntary manslaughter.” If the language of the prayer for instruction “0” had been as set forth above in the brief of counsel for appellant, then the court should have granted the prayer, and would have erred in not doing so. See Allison v. State, 74 Ark. 444; Collins v. State, 102 Ark. 180; Brandes v. State, 110 Ark. 402; Phares v. State, 155 Ark. 75. But the refused prayer was not in the form set forth in the “brief and argument” of counsel, and, in the form presented, it was not a correct declaration of law. The concluding clause of the instruction, to-wit: “he would at most only be guilty of voluntary manslaughter,” was argumentative in form and incorrect in substance, because it carried the implication that the appellant might he guilty, under the evidence adduced, of a lower grade of homicide than voluntary manslaughter. Whereas, the undisputed testimony shows that, if guilty at all, he could not have been guilty of a less degree of homicide than voluntary manslaughter. The jury, under the evidence, could not have found him guilty of involuntary manslaughter. Although appellant would have been entitled to an instruction correctly declaring the law on voluntary manslaughter as applicable to the facts, if such an instruction had been prayed, yet it was not reversible error for the court to refuse the prayer of appellant on that subject, because such prayer was erroneous. See Allison v. State, 74 Ark. 444; Prewitt v. State, 150 Ark. 279, and cases there cited.

3. The appellant testified that his first experience with Billings was in 1921, when the latter had a claim in favor of Tobin Brothers against the appellant, which claim was reduced to judgment-before oné O. Edington, a justice of tlie peace, and on which, judgment a garnishment was issued; that he had settled this claim. The docket entries of the justice of the peace and writ of garnishment in regard to the Tobin claim were identified and introduced in evidence by the appellant. Among these entries was the following: “9-20-22 Garnishment issued Kansas City Southern Railway Company, returnable Oct. 22, 1922. Oct. 13, 1922, settled in full.” The writ of garnishment introduced by appellant showed that it was based on the Tobin Brothers judgment of the 21st of May, 1921, before 0. Edington, justice of the peace. It stated that the judgment remained unsatisfied, and a writ was issued against the Kansas City Southern Railway Company commanding it to appear and answer on Oct. 2, 1922. The writ showed that it was served on the 20th of September, 1922, by delivering a copy to T. H. Short, agent of the Kansas City Southern Railway Company,' as therein commanded. On cross-examination, the State, over the objection of the appellant, was permitted to introduce a letter purporting to have 'been written b}^ an agent of the Kansas City Southern Railway Company which accompanied the justice docket and the other papers which had been introduced in the cause by appellant. It appeared from this letter that inclosed therein to the justice of the peace was a pay-check of the Kansas City Southern Railway Company to Roy Selman, properly indorsed, to settle the claim of Tobin Brothers against Roy Selman. The appellant objected on the ground that the letter purported to be written by the agent of the Kansas City Southern Railway Company after the death of Billings, and that it was therefore incompetent. The court permitted it to be introduced in confirmation of the indorsement on the judgment, “settled in full,” which was not dated.

Counsel for the appellant contend that the ruling of the court in allowing this letter to be read to the jury was erroneous and prejudicial to appellant, as it tended-lo discredit the testimony of appellant to the effect that lie bad paid the Tobin claim in full in 1921. It was error to permit the introduction of the letter in evidence, but the error 'was one which the appellant invited, and therefore lie is not in an attitude to complain. The docket entries and court writs which appellant was permitted to introduce concerning the Tobin claim were wholly incompetent and irrelevant to the issue of the guilt or innocence of the appellant. It was perhaps permissible for the appellant himself to testify concerning this claim as a part of the history of the transactions which led to the fatal rencounter between himself and Billings, but when appellant introduced docket entries and papers before the justice of the peace concerning that claim, in corroboration of his testimony, he was thus permitted to resort to wholly collateral matters in corroboration of his own testimony. The court should not have allowed this, but, having done so at the instance of the appellant, he was then not in an attitude to object to the testimony which the State introduced of the same character tending to rebut the testimony of the appellant on the collateral matters which he had brought into the record. The appellant cannot complain of error which he himself invited. Beck v. Biggers, 66 Ark. 368; Kan. City So. Ry. Co. v. Belknap, 80 Ark. 587; Mitchell v. Smith, 86 Ark. 486; Tarkinqton v. State, 154 Ark. 365-367.

The judgment is correct, and it is affirmed.


author: Wood, J. McCulloch, C. J.,

text:
    Hollan v. American Bank of Commerce & Trust Company.
    Opinion delivered May 21, 1923.
    1. Usury-burden op proof. — The -burden is upon the party who pleads usury to clearly prove it.
    2. Usury — excessive brokerage fee. — Where a lender charged 8 per cent, interest and a brokerage fee of one per' cent, on a loan for 80 days, the contract is usurious, though at the lender’s option the loan was renewable without a brokerage fee at the end of that period.
    3. UsuRY — renewal contract. — A contract is itself usurious which is executed in renewal of a usurious contract.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed in part.

      J. G. Marshall, for appellant.
    The first five mortgage loans were usurious, and the court erred in not so holding, and especially is this true of the second, third and fourth loans'. 39 Cyc. 971; 135 Ark. 578; 54 Ark. 155. Renewal also usurious. 39 Cyc. 1093. The exactions by the hank officers personally for their individual 'benefit made the first and fifth loans usurious. 27 R. C. L. 239; 39 Cyc. 975; 63 N. W. (Minn.) 108.

      Moore, Smith, Moore & Trieber, for appellee.
    The personal gratuities given one of the 'bank officials did not render loans usurious, and the burden was on ■ appellant to prove usury. 105 Ark. 653; 123 Ark. 612; 32 N. E. (Ill.) 534. Case cited by appellant, 63 N. W. 108, not applicable to facts herein. Collection of 1 per cent, brokerage did not render .other loans usurious, as the loans were to' be carried till automobiles could be sold. There must be an intention to take .usurious interest in order to constitute usury. 25 Ark. 258; 91 Ark. 458. The notes were extended indefinitely to 'Carry out intention of parties. 27 R. C. L. 1212. Rate of interest was uncertain and could not be definitely known until loans were paid off. 56 Ark. 335; 69 Árk. 352; 118 N. E. (N. Y.) 622. Usury will not be inferred, where, from the circumstances, the opposite conclusion can be reasonably and fairly reached. 83 Ark. 31; 74 Ark.- 241; 153 Ark. 219. The increase of the rate afterwards was an oversight, and certainly .does not show an intention to make such charge at time loan was made. 25 Ark. 258; 67 Ark. 426; 63 Ark, 225; 138 Ark. 11.

      J. G. Marshall, in reply.
    Bank liad to enter into written contract to charge over 6 per cent, interest, and writing shows intention of parties as to interest and brokerage is undisputed. 62 Ark. 370; 135 Ark. 578; 39 Cyc. 951. Cases of 64 Ark. 426, 153 Ark. 219, have no application here. 115 N. W. (Ia.) 577; 68 S. W. (Mo.) 917; 46 N. W. (Minn.) 360; 88 N. W. (Minn.) 845; 64 N. W. i898. Notice or knowledge of nsnrions charge is presumed where agent making loan has general authority. 45 N. W. 439. The notes sued on, except those for the sixth loan,' are usurious and void, and a decree should be entered accordingly.
   Wood, J.

Claud L. Hollan, hereafter called appellant, doing business under the name of Hollan Auto Company, executed certain notes to the American Bank of Commerce & Trust Co., hereafter called the appellee. We will refer to these loans as the first, second, third, fourth, fifth and sixth loans, in the order in which the notes were executed.

The first note was for $4,000 dated October 23, 1.919, due in thirty days. The note contained this recital: “Negotiable and payable without defalcation or discount at the office of the American Bank of Commerce & Trust Company at Little Bock. Arkansas, with interest from date at the rate of eight per cent, per annum until paid.” This note was extended from thirty days without renewal until June 23, 1920, and from the last mentioned date was extended by renewal notes each month until April 20,1921. Two credits were made on the note, representing the proceeds of sales of cars, the balance of the indebtedness being represented by a renewal note for $1,000 executed April 20, 1921, bearing interest at the rate of 10 per cent, per annum from date until paid.

The second note was for $2,750, due in thirty days after date, at 8 per cent, per annum, bearing the recital, “negotiable and payable without defalcation or discount at the office of the appellee,” etc. This note was extended ■without renewal from thirty days to June 6th. From the last named date it was extended monthly by renewal notes until April 3, 1921. Two credits were made upon the renewal notes, representing proceeds of sales of cars, and the balance of the indebtedness on the second loan is represented by note of April 3, 1921, for $850.

The third loan was represented by two notes, one for $2,511 and the other for $2,631, executed March 10, 1921, due in thirty days after date, bearing interest at the rate of 8 per cent, per annum from date until paid, with similar recitals as to defalcation and place of payment. The note for $2,511 was extended from thirty days without renewal until June 9, 1920, and by renewal note from thirty days thereafter until February 7, 1921. On October 13, 1920, a payment of $850 was credited on one of the renewal notes, and the original indebtedness on the note for $2,511 is now represented by a balance of $1,660, evidenced by nóte of February 7, 1921. The note for $2,631 was extended without renewal from thirty days until June 9,1920, and from the last named date by renewal each month until April 9, 1921. On November 6, 1920, a payment of $881, representing the proceeds of a sale of a car, was credited on the back of one of the extension notes, and the balance of the original indebtedness on the note for $2,631 is represented by note of April 8, 1921, for $1,750.

The fourth loan is represented by a note for $2,650 executed April 5,1920, due in thirty days after date, with interest at 8 per cent, per annum from date until paid, with similar recitals as to defalcation and place of payment. This note was extended without renewal from thirty days until June 4, and from the last mentioned date from thirty days by renewal until April 3, 1921. On June 7, 1920, and Sept. 18, 1920, credits of $850 and $900, respectively, were made on this loan, and the balance of $900 is now represented by note dated April 3, 1920, for that amount.

Tlie fifth loan is represented by two notes of $2,000 each, executed .September 20, 1920, due in thirty days, bearing interest at 10 per cent, per annum from maturity until paid, with similar recitals as to defalcation and place of payment. No payments were made upon these notes, and the indebtedness is now represented by renewal notes executed January 19, 1921.

The sixth loan is represented by two notes dated May 4, 1921, due on or before ninety days, in the respective sums of $1,235.26 and $1,200, bearing interest at the rate of 8 per cent, per annum from date until paid. These notes were never renewed.

This action was instituted by- the appellee against the appellant to recover the balance alleged to be due on the above loans and to foreclose the mortgages on certain automobiles given as security. The notes and mortgages .are set up and described in the complaint. The defense was the plea of usury. The appellant alleged that the loans were usurious because of interest and brokerage and bonus required to be paid by appellant to the appellee, which amounted to a greater rate of interest than 10 per cent, per annum for the use of the money loaned.

The court rendered a decree in favor of the appel-lee for the balance due on the several loans in the sum of $13,231.86, with interest at the rate of 8 per cent, per annum from date of the decree until paid, and foreclosed the mortgages on certain automobiles executed to secure the indebtedness to satisfy the same. From that decree is this appeal.

1. The appellant contends that the first and fifth loans were usurious, because of certain bonuses or commissions exacted by and paid to J. F. Walker as a condition upon which the loans were obtained, and a consideration therefor, in addition to the 8 per cent, interest. Concerning the first loan for $4,000, dated October 23, 1919, the appellant testified as follows: “There was no brokerage to the bank on this first loan. I did not pay Mr., Walker a premium in getting a loan, but I did pay him $25 each, for the sale of the two cars which I sold from that shipment. I had an agreement with him beforehand to do this. * * * He told me beforehand that he would charge $25 for each car. I paid the $50 on the first two. I haven’t paid it on the last because I haven’t sold the car. This made $50 I paid for the,loan, in addition to the small items charged for exchange, stamps, and notary fee.”

Walker testified concerning this as follows: “I am vice-president and treasurer of plaintiff bank, and was in 1919-20. I have had charge of the lending of money to the Hollan Auto Company for which the notes in suit were given, beginning in the fall of 1919. * *' * In regard to the $4,000 of October 23,1919, secured by King cars-, he came to my office with a draft and bill of lading attached and wanted the loan. * * * I told him I would let him have the money, and so the- loan was fixed up. After this he said, ‘It is certainly a relief to get these cars unloaded. You are the only one that takes any interest in helping me.’ He said, ‘I am going to give yon personally $25 out of each car sold.’ I said, ‘You don’t owe me anything.’ That was no part of the making of the loan and no part of the consideration. In April, six months later, he handed me a check for $50’ and said ‘That is for 3rou individually. The bank has got nothing to do with it.’ I took the' check and used it. The bank-got none of the proceeds.”

In regard to the fifth loan the appellant testified as follows: “This deal was a little different from the others. At the time the cars came Walker refused to unload them for me; he said the banks had quit loaning money on the cars at 80 per cent, of the value. They remained on the tracks for about three weeks. I went to him several times, and he finally told me that he would loan me the $4,000 if I would pay the interest in advance and pay him something for giving the loan. I told him I wouldn’t have anything to pay him with. I said, ‘I can get a $25 liat.’ He said, ‘All right, get that and I will.’ I got the hat for him at Poe’s. So he got the hat. I went out and borrowed the rest of the money to unload the cars. The interest was paid in advance. The loan was not made until four or five clays after the hat was agreed on. I sent him the hat the same evening the loan was agreed to. He exacted the $25 of me, and I told him I didn’t have it, and the hat was agreed on instead of the money.”

Walker testified concerning this loan as follows: “He was having some trouble in handling that shipment. He wanted a fuller loan. He first applied for a $4,500 loan on the two Boamer ears, and I told him I couldn’t handle it, so he went out and tried to handle it elsewhere. He came in several days later and said ho couldn’t raise the money. He came in a third time; that is, he met me on the street, near his plane of business, and took it up with me again. He said I must help him unload those Boamers. I said, ‘Claud, I can’t lend you $4,500 on those cars.’ He said, ‘I have prospects; I think I can sell those cars. It won’t be necessary to carry them very long in stock. There’s demurrage piling up against me on those cars. I’ve got to get them out. I’ve got nobody else to go to but you. You have always been my friend, and I depend upon you.’ He asked me what I could lend him, if I couldn’t lend him $4,500. I made him a proposition I would recommend a loan of $4,000 — $2,000 on each car. He said, ‘Well, I’ll he around in the morning. I think I can raise the balance of it.’ As I started away, he said, ‘I’m going to buy you a good hat.’ I said, ‘Don’t do that; I don’t expect that of you.’ He said, ‘If I want to do it, it ought to he all right.’ So he came in the next day and fixed up the loan.' There was nothing said about any brokerage or bonus of any kind, and Mr. Severson fixed up the loan, and, a day or two after that, I went home one afternoon and there was a package there from the Hub Clothing Company. I opened it. It contained a hat. Inside was a ticket, ‘Compliments of Claud Hollan.’ ”

The above is the testimony verbatim from the record concerning the first and fifth loans. It presents a sharp conflict between appellant and Walker. While the testimony of appellant tends to prove that Walker received the $50 and the hat as a commission or bonus paid him as inducements for, or in consideration of, making’ the loans in addition to the 8 per cent, interest, the testimony of Walker flatly contradicts this and tends to prove that these bonuses were not in the nature of commissions paid him for making the loan, and did not enter into the consideration for the loan, and were not exacted or charged by him as a prerequisite to the loan, but, on the contrary, that they were tendered to, and accepted bjq him as mere personal gratuities from Hollan after the loans were consummated.

We have often ruled that the burden is upon the party who pleads usury to clearly prove it. Jones v. Phillippe, 135 Ark. 578, and cases there cited; Briant v. Carl-Lee Bros., 158 Ark. 62. The appellant fails to establish the necessary facts to constitute usury in the first and fifth loans, since he does not show, by a clear preponderance of the evidence, that the alleged bonuses were received by Walker as a part of the consideration for making these loans.

2. The undisputed testimony shows that on the second, third and fourth loans the appellee, through its officers and agents, by agreement with .appellant, charged and collected of him, in addition to the 8 per cent, interest, a brokerage of one per cent, on the principal of the. loans. The notes evidencing these loans were payable in “thirty days after date, without defalcation,” etc. Ap-pellee concedes that this brokerage, in addition to the 8 per cent, interest, would render all these notes usurious, if the contracts were that same were to be paid in thirty days. But it contends that it was not in contemplation of the parties, at the time the notes were executed, that the same were to be paid within thirty days. The appellee was permitted, over the objection of the appellant, to introduce testimony which tended to prove that the notes were to be paid out of the proceeds of the sales of cars as the same were sold, and that until the cars were sold the notes would be renewed or extended indefinitely until that time; that it was understood between appellant and the appellee that the rate of interest would be 8 per cent, for the originals and renewals. That it was understood by Walker and the other officials of the bank that, when the appellee went into the business of financing automobile dealers, it would charge them at the rate of 8 per cent, per annum on short time paper; that the making of the original notes and renewals thereof for thirty days was for the convenience of the appellant, so that in case he sold a car within that time he would not have to pay interest for a longer period.

The appellant testified that there was no agreement that the notes were to run longer than thirty days. When he renewed them, he got more time. The original notes fixed their own maturity. There was no assurance to him that any renewals would ever be made. He just took a chance on paying out the notes by selling off the autos. He never knew in any instance how long it would take to sell them and pay the notes, but figured he could do it inside of thirty days. He did pay off the larger part of each note within that time. He also further testified concerning the renewal of notes as follows: “It has been said that it was customary to renew these loans. Mr. Walker whs the man I always did business with. He was out of town when a note came due, and Mr. Rightsell stated positively, ‘When this is signed for thirty days, it is thirty days; and it is with us whether we renew it or not. You will have to pay this note off.’ I told him to wait until Mr. Walker got back, and he said, ‘No, something will have to be done about it right away.’ I paid part of the note and then renewed it.” And fur-' ther: “When they refused to renew the note, I went to Mr. Rightsell. He knew what the custom of the bank was. He told me that when a note is made for thirty days that is when it is due. ‘We want this note paid.’ I mentioned Mr. Walker. Mr.- Rightsell said, ‘Mr. Walker nothing, I am handling it now. I want the note paid. I am handling the note.’ ” And further in his testimony he said: “I went to Keatts, the note teller, and he said, ‘We can’t renew this note, because Mr. Walker left instructions to pay it off.’ I could do nothing else about it, so I had to see some official of the bank, and I saw Mr. Rightsell. * * * Renewals didn’t come as a matter of course. Walker would tell the note teller when he didn’t want anything renewed or when he did want it. Sometimes it would be one way and sometimes another.”

Keatts testified, among other things, that he was the note teller of the bank. The old original notes and extended notes passed into his hands about June 5, 2920. He saw they were bearing 8 per cent, interest. He jumped to 10 per cent., knowing that he was changing the rate. He could not say that any of these notes were hearing 10 per cent, when he began renewing them. He took renewals because the government required that they be stamped each time they were extended. His intention was to collect 10 per cent, every month. * * * When he began taking renewals, he did it oh his own initiative, and advanced the rate to 10 per cent. It was customary for him to have Walker O. K. the renewals, but he had no instructions from him to raise the rate. He presented the notes to’ Walker as renewals, and Walker merely O. K’d them.

Walker testified, in regard to this, that when his bank was consolidated with the appellee, Keatts, the note teller, took charge of the renewals, of these notes. Nothing was ever said to him one way or another about what rate appellant was doing business on. Keatts did not raise the rate, of interest on Walker’s direction or instruction. It was an error of his in doing that. A note clerk in no case is supposed to change the rate of interest on renewals without authority. Appellant would give his note for these loans running thirty days, and the rate of interest was 8 per cent. The notes were made to mature in thirty days, so that he could pay them oif by making the sales of the cars with as little interest as possible. Appellee notified him when the note fell due, and, if the cars were still unsold, appellee would excena for another thirty days at the same rate of interest. All renewals were supposed to be at the same rate. Borne of the cars are yet unsold.

Now, conceding- that the above testimony was competent and relevant to the issue of whether or not it was the intention of the appellee to charge usurious interest, we are nevertheless convinced that the clear preponderance of the evidence shows that such was its intention. The appellee can act only through its officers, and is bound by their acts in the premises. Appellee, through its officers, received of the appellant a brokerage of one per cent, on the principal of the loans in addition to the interest of 8 per cent, per annum, under a contract which on its face absolutely bound the appellant to pay the principal of the loan in thirty days. The payment of the brokerage of one per cent, was not based upon a contingency. It was taken out at the time the loan was made. Nor was the time for the payment of the notes based upon any contingency within the option or control of the appellant. Whether or -not the notes would be extended or renewed when due at the end of thirty days was a matter that was wholly optional with the appel-lee. Extension or renewal of the notes at the end of the thirty-day period was not within the terms of the contract and binding upon the appellee. Appellant could not enforce such extension or renewal as a matter of right under the contract, if he had not sold autos at the end of the thirty-day period, but he had to appeal to the appellee for such extension or renewal as a matter of grace and favor. The appellant testified that such was the interpretation of the contracts by the officers of the bank. On one occasion, when' he sought to have a note renewed, Rightsell stated that when a note was signed for thirty days it meant thirty days, and it was with the appellee whether it would renew it or not. ■ It is significant that none of the officers of the hank denied appellant’s testimony in this respect, or asserted that appellant could have demanded an extension or renewal of the notes at the end of thirty days as a matter of right.

Therefore, wé cannot agree with learned counsel for the appellee that the notes in question evidenced loans which in reality were to be paid only as cars were sold, and which were therefore made for an indefinite duration of time. As we view the oral testimony, in connection with the written contract, wq conclude that a clear preponderance of the evidence proves the intention of the appellee to charge the appellant interest at the rate of 8 per cent, per annum, and one per cent, brokerage in addition thereto, on notes payable in thirty days, but which at the end of that time, at the option of the ap-pellee, might be extended to such a time that the 8 per cent, interest and one per cent, brokerage would not exceed the lawful rate of 10 per cent, per annum. In other words, the so-called contingency for the duration of the time of payment invoked by appellee to relieve the transaction-of usury was left entirely to the appellee. The law does not tolerate a contract of that kind.

The author, on the Usury chapter in 39 Cyc., p. 951, correctly declares the law as follows: “When the lender stipulates for the absolute repayment of principal and interest at the highest legal rate, and for a further profit payable upon a contingency not under the control of the borrower, the contract is usurious. Furthermore, even the chance of the lender’s receiving excessive profit under the transaction or arrangement is more than the lender is legally entitled to require. * * * A forti-ori is the contract usurious when the contingency under which the excessive interest is payable is under the control of the lender.” It could hardly be asserted, even with plausibility, that the notes in question were not to be paid at all unless, or until, the appellant sold the cars. If the payment of the brokerage had been bottomed upon a contingency of that sort, the transactions would be relieved of usury, because tliat might not happen at all, or it might not happen within -a period short enough to render the one per cent, brokerage plus the 8 per cent, interest in excess of the rate of 10 per cent, per annum. The payment of the interest and brokerage ' is not based upon any such contingency as that. On the contrary, the notes in question were made payable in thirty days without defalcation. And the mortgages to secure the same are subject to foreclosure upon the failure of the appellant to pay the notes within the thirty days. Foreclosure is not contingent upon appellant’s failure to sell an automobile within thirty days, or in any other given time. There is in these loans no element of uncertainty, either as to the time when the notes were to be paid or as to the rate of interest and brokerage to be paid. In other words, there is in these transactions no element of uncertainty or hazard “that seems to exclude the idea of a loan of money at a usurious rate of interest.”

. The eases of Reeves v. Ladies’ Bldg. & Loan Assn., 56 Ark. 335, Farmers’ Savings & Bldg. & Loan Assn. v. Ferguson, 69 Ark. 352, and Briant v. Carl-Lee Bros., 158 Ark. 62, upon which the appellee relies to sustain its contention on this point, are not applicable to the facts of this record.

The fact that the original notes were partially paid, and that the balance due thereon is evidenced by renewal notes which are the foundation of this action, does not free such renewal notes from usury. The law is well settled that a contract is itself usurious which is executed in renewal of a usurious contract. “Where the original obligation is usurious, the taint attaches to all consecutive obligations or securities growing out of the original usurious transaction, and none of the descend-' ant obligations, however remote, is free from it if the descent can be traced. ’ ’ See note 2 to Person v. Mattson, 1918 Ann. Cas., p. 755, and numerous cases there cited. 27 R. C. L. p. 251, sec. 54; 39 Cyc p. 1003. See Pickett v. Merchants’ National Bank, 32 Ark. 346. We conclude, for the reasons stated, that the second, third and fourth loans are void for usury, and the chancery court erred in pot so holding.

3. The appellant does not contend that the notes of May 4, 1921, evidencing the sixth loan, were usurious.

The decree of the chancery court as to the first, fifth and sixth loans is therefore correct,.and is in all things affirmed. As to the second, third and fourth loans, for the error indicated, the decree is reversed and the cause will be remanded, with directions to enter a decree declaring such loans null and void, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.

McCulloch, C. J.,

(dissenting). This court is definitely committed to the rule if “a promise to pay a sum above legal interest depends on a contingency, and not upon the happening of a certain event, the loan is not usurious.” Reeves v. Building & Loan Ass’n, 56 Ark. 335; Briant v. Carl-Lee Bros., 158 Ark. 62.

If therefore there was a valid and enforceable contract between the parties for renewals of the notes until sales of the automobiles could be made, then there existed such a contingency as rendered it uncertain whether the rate of interest would or would not ultimately exceed ten per centum per annum, and the loans were not usurious.

The notes executed by appellant called for interest at eight per cent, per annum, they were free from usury, and the burden of proof ££is upon the party who pleads usui’y to show clearly that the transaction was usurious.” Smith v. Mack, 105 Ark. 653; Briant v. Carl-Lee Bros., supra.

Parol evidence is admissible to prove that a promissory note, legal on its face, is in fact usurious by reason of the exaction of excessive interest, but -such testimony is likewise admissible to uphold the contract by showing that the excessive -exaction was not received as interest,' and that usury was not intended. Briant v. Carl-Lee Bros., supra.

It was shown by a decided preponderance of the testimony that the brokerage charge was made because of the fact that the loans were intended to be renewed from time to time until the automobiles could be sold. Walker and another one of appellee’s employees in the bank testified that such was the agreement, and the chancery court found, in favor of appellee on that issue. They testified that such was the custom in making loans’ to automobile dealers; that the notes were made payable on short time (30 days) to enable dealers to make payments as cars were sold and thus to save interest, and that appellant’s notes were renewed in accordance with that custom. Appellant admitted, in his testimony, that it was customary for the bank to renew his notes until he could sell his cars, and that he “understood” that he was to have a chance to sell the cars so as to pay the notes out of the proceeds. He denied, however, that there was any express agreement to that effect. The preponderance of the evidence shows that the contract was made in accordance with the 'Custom, and the finding of the chancellor should not be overturned. ■

But the majority of the court say that “the contingency under which the excessive interest is payable is under the control of the lender,” that appellant cannot control it, and that the contract is not relieved of the taint of usurjr. I do. not think so. The .agreement for extension was an independent contract supported by a valuable consideration, and appellant could have enforced it. No rule of evidence is violated in permit-' ting the oral agreement to be proved, as it was an independent one, and, though contemporaneous with the writing, the proof does not vary the terms of the writing. Weaver v. Fletcher, 27 Ark. 510; Trumbull v. Harris, 102 Ark. 669.

Tlie written contract to pay on a given date is one thing, and the agreement for extension is another. The latter is 'supported by a consideration, and is enforceable.

It is no answer to say that the automobiles might never be sold, and that the extensions might never end. Other principles of law would apply in such a contingency as that.

Mr. Justice Smith concurs in these views.