author: Humphreys, J.

text:
    McKinley v. Black.
    Opinion delivered February 19, 1923.
    Mortgages — limitation—effect of unrecorded payments. — Undei Crawford & Moses’ Dig., §§ 7382, 7408, providing that payments on a mortgage shall not revive the indebtedness or extend the operation of the statute of limitations, so far as the same affects the rights of third parties, unless, prior to expiration of the period of limitation, a memorandum of such payment be indorsed on the margin of the record, held that a purchaser at his own execution sale, not a party to the mortgage, is a “third party,” and where payments on the mortgage were not indorsed on the margin of the record until after the debt was apparently barred, and after the execution sale, the payments did not stay the running of the statute as to such purchaser.
    Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor;
    reversed.

      Duty & Duty, for appellant.
    The mortgage was barred, so far as pertains to the rights of this appellant. Crawford & Moses’ Digest, §§ 7382, 7408. Appellant was a third party within the meaning of the statute, § 7382, supra. 106 Ark. 207; 64 Ark. 317; 68 Ark. 257-9'; 91 Ark. 394-8; 99 Ark. 213; 91 Ark. 394; 42 Ark. 140; 41 Ark. 186.

      W. O. Young, for appellee.
    A purchaser at his own execution sale can acquire no greater rights to the property than the debtor could himself claim. 23 C. J. 746 et seq. The purchaser at a valid execution sale takes what title the defendant in execution has, no more, no less. 131 Ark. 492; 215 S. W. 611.
   Humphreys, J.

Appellant instituted suit in the Benton Chancery Court to quiet title to the SE¼ NW¼ sec. 16, T. 21 N., R. 29 W., in Benton County, Arkansas, ag’ainst appellee, alleging ownership thereto under purchase at his own execution sale under an execution issued out of the Benton Circuit Court, upon a judgment obtained by him against C. S. and Sarah Mitchell.

Appellee filed an answer and crossbill, asserting and seeking to enforce a mortgage against the property which he obtained from the owners, C. S. and Sarah Mitchell, on the 17th day of February, 1909, to secure a note of even date in the sum of $295, due on the 17th day of February, 1910, on which the following payments had been made: September 13,1909, $49; June 20, 1914, $10; and June 17, 1919, $10. The mortgagors were made parties defendant in the crossbill, who filed an answer admitting the indebtedness and the execution of the mortgage to secure same.

Appellant filed an answer to the crossbill, alleging that the mortgage indebtedness was barred as to him under §§ 7382 and 7408 of Crawford & Moses ’ Digest.

The cause was submitted to 'the court upon the pleadings and the oral and documentary testimony, which resulted in a refusal to sustain the plea of the statute of limitations, and the rendition of a decree in favor of appellee for the mortgage indebtedness, and foreclosure of the mortgage to pay same, and a dismissal of appellant’s bill for the want of equity, from which decree an appeal has been duly prosecuted to this court.

The facts are undisputed, and are as follows: On February 17, 1909, C. S. and Sarah Mitchell were indebted to W. L. Black in the sum of $295.62, and to secure the indebtedness executed a mortgage to him on said real estate. The indebtedness was evidencd by note of even date with the mortgage, bearing interest at the rate of 8 per cent, per annum from date until paid, being due and payable on the 17th day of February, 1910. Three payments were made upon the indebtedness and credited on the notes, as follows: September 13, 1909, $49; June 20, 1914, $10; and June 17, 1919, $10. The mortgage was recorded, but the credits were not noted on the margin of the record until April 18, 1918. Appellant obtained a judgment against C. S. Mitchell in a magistrate’s court for $226.85, which was filed on the judgment docket of the Benton Circuit Court on November 3, 1917. On the 12th day of. April, 1918, the execution was issued upon the judgment levied on said land, which was sold to satisfy the judgment. Appellant purchased the land at the execution sale, and, after the expiration of the right of redemption, procured the sheriff’s deed thereto. On the 18th day of April, 1919, before the sheriff’s deed was executed, a notation of the amounts theretofore paid on the notes was made upon the margin of the record. The only question presented by this appeal is whether the mortgage lien was barred as against appellant. This must depend on whether the purchaser at an execution sale is a third party within the meaning .of §§ 7382 and 7408 of Crawford & Moses’ Digest. Those sections provide that payments upon a mortgage indebtedness shall not operate to revive the indebtedness or to extend the operation of the statute of limitation, so far as the same affects the rights of third parties, unless the mortgagee, trustee or beneficiary shall, prior to the expiration of the period of the statute of limitation, indorse .a memorandum of such payment with date thereof on the margin of the record where such instrument is recorded, which indorsement shall he attested and dated by the clerk. In construing these statutes this court has ruled that strangers to the mortgage, with full knowledge of the existence of such mortgage, may avail themselves of an apparent bar of the debt, if payments which would stay the limitation are not indorsed on the margin of the record of the mortgage. Martin v. Ogden, 41 Ark. 186; Wright v. Graham, 42 Ark. 140; Hill v. Gregory, 64 Ark. 317; Morgan v. Kendrick, 94 Ark. 394. Third parties, as used in the statutes under construction, necessarily mean strangers to the mortgage. This being true, we think an execution purchaser at his own sale, who was not a party to the mortgage, is a third party within the meaning of the statutes. In the instant case the payments which prevented the statutory bar between the mortgagor and mortgagee were not entered upon the margin of the record of the mortgage until long after the debt was apparently barred, and after appellant had purchased the land at the execution sale. The payments did not therefore stay the limitation as to appellant.

On account of the error indicated the decree is reversed and the cause is remanded, with directions to quiet appellant’s title to said real estate as against the mortgage lien of appellee.


source: Caselaw Access Project

author: Humphrey:, J.

license: Public Domain

text:
    Spier v. State.
    Opinion delivered February 19, 1923.
    1. Homicide — sufficiency of evidence. — In a prosecution for murder, evidence held to warrant submission of the charge of murder and to support conviction of voluntary manslaughter.
    2. Homicide — origin of quarrel. — In a prosecution for murder, evidence of the victim’s wife that about two years before the killing defendant had ravished her, was admissible as being the cause of the quarrel between defendant and her husband, which never abated.
    3. Homicide — evidence of deceased’s insanity.' — Evidence as to an insanity proceeding against the deceased, either not objected to or else elicited by defendant, cannot be ground for complaint on appeal.
    4. Criminal law — argument of counsel. — In a murder trial, where there was testimony that the killing of defendant’s brother grew out of defendant having ravished his wife, statements of the prosecuting attorney that defendant shed more tears in the preceding 24 hours than he had shed for years prior to the trial, that evidence showed that he didn’t shed tears at his brother’s grave, that when defendant ravished his brother’s wife he forfeited the right to live, and that the man who would ravish his brother’s wife and then murder him would fabricate a defense like defendant had done, were mere expressions of opinion and proper argument.
    5. Criminal law — argument of counsel. — In a murder trial, argument of the prosecuting attorney that defendant could have turned aside when he saw he was going to meet deceased, and, having failed to do so, he did not do everything in his power consistent with his safety to avoid difficulty, and therefore was not entitled to invoke the law of self-defense, was not prejudicial in view of the court’s instruction that defendant had a right to pursue his intended course without turning aside, and that a failure to turn aside would not deprive him of the right of self-defense.
    6. Criminal law — requested instructions already covered. — Refusal of instructions fully covered by other instructions given was not error.
    Appeal from Conway Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Gordon & Combs, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphrey:, J.

Appellant, Charlie Spier, was indicted in the Conway Court for murder in the first degree for killing his brother in Conway County on October 24, 1921, and on the trial of said charge was convicted of voluntary manslaughter and adjudged to serve two years in the State Penitentiary as punishment therefor. From the judgment of conviction an appeal has been duly prosecuted to this court.

Appellant’s first assignment of error is that the evidence is not sufficient to support the judgment. It is contended that the undisputed evidence reflects that appellant killed his brother, Arthur Spier, in necessary self-defense. The record of the testimony is quite voluminous, and it would extend this opinion to great length to set out the testimony of each witness. Only a brief statment of the fasts therefore will be attempted. The tragedy occurred on the public highway near Morrilton. It was the culmination of a quarrel between the brothers, of two years standing, growing out of a charge that Charlie had ravished Arthur’s wife. Arthur had threatened appellant’s life on many occasions, and had compelled him to leave home. Charlie had resided with his father and mother only a few hundred yards from Arthur’s home. After leaving the country, Charlie returned secretly on several occasions to visit his parents. During one of these visits, the brothers engaged in a shooting affair near a neighborhood store. Neither was injured at that time. The sympathies of the father and mother were with Charlie, which caused a bitterness between the two families. On one occasion, during the absence of Charlie, a charge of insanity was preferred against Arthur on account of frequent outbursts of anger toward his father and Charlie, in the hope that treatment in the Hospital for Nervous Diseases would restore his former equanimity. 'Charlie did not participate in the proceedings. On the night before the killing, Charlie spent the night with his brother, Elmer, who lived in the same neighborhood. Early the next morning he went to his father’s home, in company with a friend, taking a single-barrel shotgun and two cartridges with him. In going to his father’s house he saw Arthur, but avoided meeting him by going through the woods. In a short time after arriving at his father’s home, he saw Arthur passing in a wagon on his way to Morrilton. Later in the morning Mr. Spier went to Morrilton in his buggy, and Charlie decided to go with him as far as Ed Bradshaw’s, in order to collect some money which Bradshaw owed him. He procured two more cartridges at his-father’s home, making four in all, and took the gun with him. He testified that his purpose was to collect the money, return home by way of a neighborhood store, buy some more shells and hunt squirrels in the woods on the way back; that Bradshaw was not at home, so he decided to go on to town with his father; that after going about one-half mile he saw Arthur coming*; that just before meeting him he observed a pistol in Arthur’s hand; that he said, “Arthur, don’t you get it,” at which time Arthur began to fire, hitting him the first shot in the hip; that when Arthur fired the second shot he reached for lbs gun and shot him; that Arthur then fired four more shots at him.

R. I. Spier testified that Charlie was watching Arthur when they met him; that he heard Charlie say, “Don’t you get it,” and Arthur reached over for a pistol; that he became excited, and could not say which om fired first. Other witnesses who heard the shots said they were close together, but the pistol shot was first. Dr. Arthur, the coroner, testified that appellant told him he took the gun that morning for the purpose of killing a hawk, should he see one.

Appellant’s explanation as to why he had the gun, and why he went to town with his father, knowing they would likely meet Arthur, may have been regarded as a ruse by the jury. They may have disbelieved the testimony, and concluded that he took the gun for the purpose of engaging in a shooting fray with his brother. As they were about to meet, he was watching his brother, and quickly warned him not to draw his pistol. The jury may have drawn an inference from his conduct and statement that he was prepared to prevent Arthur from drawing the pistol, or, to put it in common parlance, that appellant liad beaten him to it. While appellant stated that Arthur was the aggressor, his father, the only eye witness, stated that he did not know who fired first. The conflict in the evidence, and the reasonable inferences that might be drawn therefrom, warranted the submission of the charge of murder to the jury, and were sufficient to support the verdict and judgment.

Appellant’s second assignment of error is that the court permitted the wife of deceased to testify that about two years before the tragedy appellant ravished her. This was the cause of the trouble between the brothers. The quarrel growing out of the affair never abated, but continued until it culminated in the tragedy. Being the origin of the trouble, the testimony was clearly admissible.

Appellant’s third assignment of error is that the court admitted proof of the insanity proceeding against Arthur. No objection was made to the testimony of Mrs. Arthur Spier relating to the insanity proceeding, at the time it was introduced. The testimony of the other witnesses- concerning the insanity proceeding was elicited by appellant from his own witnesses. We are unable to see just how the introduction of the testimony prejudiced the rights of appellant, but, even if it did, he is in no position to complain.

Appellant’s fourth assignment of error is that counsel for the State, over the objection and exception of appellant, made the following statements in the course of argument:

“1. The defendant could have turned aside to another road when he saw he was going to meet the deceased, and, having failed to do so, he didn’t use all the means within his power consistent with his safety to avoid the difficulty. He was therefore not entitled to invoke the law of self-defense.
“2. The defendant shed more tears in the last twenty-four hours than he had shed for years prior to the trial; that he should have gone to the grave of his deceased brother at the time of his funeral and shed some tears; that the evidence showed that he didn’t shed any at that time.
“3. When Charlie Spier ravished the wife of deceased, he forfeited the rigid to live, under the law.
“4. The man who would ravish his brother’s wife and later murder him would fabricate a defense just like. Charlie Spier had done.”

The last three statements were expressions of opinions only, and therefore proper argument.

The -first statement did not result in any prejudice to the cause of appellant, because the court instructed the jury “that he (appellant) had a right, under the law, to pursue his regular or intended course without turning aside'to some other road, and that his failure to turn aside to some other road would not deprive him of his rights, under the law of self-defense.”

Appellant’s fifth assignment of error is that the court refused to give four of the instructions requested by him. We have examined the instructions carefullv, and, by comparison with other instructions given by the court, find that the instructions requested were fully covered by other instructions, except that part of appellant’s request No. 1, embraced in the first sentence thereof. The court gave that part of appellant’s request. The court fully and correctly instructed the jury upon every issue involved in the case.

No error appearing, the judgment is affirmed.


author: Per Curiam.

text:
    McIlroy v. Baird.
    Opinion delivered February 19, 1923.
    1. Highways — disallowance op claim against district — limitation op appeal. — A statute limiting to 30 days the time for appealing’- from the disallowance by highway commissioners of claims against a district which had been abolished by the statute, held valid.
    2. Highways — disallowance of claim — limitation op appeal.— Where all the parties have treated a claim against a defunct road improvement district as if it had been rejected by the commissioners, it is too late to raise the question that it had not bean passed on by the commissioners, and that for this reason the statutory limitation for appealing did not apply.
    3. Highways — repeal of statute creating improvement district. —It is immaterial that a suit attacking the validity of a special act creating a road improvement district was brought before an act a.dishing the district went into effect, where the complaint was amended to set forth such repealing act, and the action thereafter proceeded to final decree, in accordance with the statute.
    Appeal from Washington Chancery' Court; Ben F. McMahan, Chancellor;
    appeal dismissed.

      Jas. B. McDonough, for, appellant.

      W. N. Ivie, John Mayes, and J. V. Walker, for appellee.
   Per Curiam.

This is an appeal from a decree of the chancery court of Washington County disallowing a portion of appellant’s claim against Road Improvement District No. 6 of Washington County, created by special act of the General Assembly of 1919 (Vol. 2, Road Acts of 1919, p. 2326) and abolished by special act of the General Assembly of 1921. Special Acts 1921, p. 525.

Appellees moved to dismiss the appeal on the ground that it Vas not perfected within the time prescribed in a section of the repealing act cited above.

The history of the litigation is as follows: Appellees, who were certain owners of real property in the district mentioned, commenced suit in the chancery court of Washington County in June, 1920, attacking the validity of the statute creating the district and the assessment of benefits thereunder. No decree was rendered in that action until after the repealing statute became effective, ninety days after the adjournment of the General Assembly of 1921. After the passage and approval of that statute, but before it went into effect, appellees amended their complaint in the orginal action so as to set forth this statute, and the action proceeded to final decree after the repealing statute went into effect. The court appointed a master to investigate the claims, and specified a time within which the claims might be presented. The master made his report, and appellant filed exceptions to the report, and the court rendered a final decree allowing a portion of appellant’s claim but disallowing the remainder. This is the decree from which appellant seeks to prosecute his appeal, but his transcript was not filed within the time specified in the repealing statute for the prosecution of such appeals.

The section of the repealing statute cited above reads as follows: “Section 3. If the commissioners reject any claim, in whole or in part, presented to them, the holder thereof shall be barred, unless he shall, within ninety days after notice of the rejection thereof, proceed to enforce the same by suit. All suits shall be deemed matters of public interest, and shall be advanced and heard at the earliest possible moment; and all appeals therein must be taken and perfected within thirty days.”

Tliis court has, in numerous decisions, held to be valid statutes similar to this, limiting appeals in certain cases to a time as short as that mentioned in this statute. Crandell v. Harrison, 205 Ark. 220; Miller v. White, 108 Ark. 253; Norton v. Road Imp. Dist. No. 1 of Jefferson County, 143 Ark. 110; Ferrell v. Massie, 150 Ark. 156; Davis v. Cook, 155 Ark. 613.

Appellant insists that this ease does not fall within the terms of the statute, for several reasons; first, because his claim was never rejected by the commissioners,, but was passed on by the court in the first instance. The commissioners of the district were parties to this suit, and appellant presented his claim to the court, or, rather, to the master, in accordance with the instructions of the court, all parties treating the claims as being in the same attitude before the court for adjudication as if it had been rejected by the commissioners, and it is too late now, after the adjudication has .been made by the court, to raise the question that the commissioners had not previously passed upon the claim and rejected it.

The next reason given why the case does not fall within the provisions of the statute is that it was instituted before the repealing statute went into effect. The answer to that contention is that the suit progressed without final decree until after the repealing statute became effective, and the decree was rendered under that statute.

Again, it is urged that the case does not fall within the -statute for the reason that there is an attack made upon the constitutionality of the statute, and that the anpeal ought to stand-as to that nart of the decree under the rule announced in.Davis v. Cook, supra. Conceding it to be true that there is involved an attack upon the constitutionality of the statute, the attack arises entirely in the prosecution of the claim which appellant had filed, and therefore it comes squarely within the statute. The fact that there is a challenge to the constitutionality of the statute does not render it any the less conclusive as to the time for prosecuting the appeal. We have held that that part, at least, of the statute is valid under the rule announced in the cases hereinbefore cited.

It follows from what has been said that the appeal has not been prosecuted within the time specified by the statute, and the‘appeal must therefore be dismissed. It is so ordered.


author: McCulloch, C. J.

text:
    Ætna Casualty & Surety Company v. North Little Rock.
    Opinion delivered February 26, 1923.
    1. Municipal corporations — liability op city collector. — Where funds collected by a city collector belonging to a city and to certain improvement districts were jointly deposited in his name as collector, and it was impossible to show from what source the funds came, further than that they were collected for the benefit of the city and the improvement districts, it was proper to divide the joint fund pro rata,, in accordance with the amounts due each.
    2. Municipal corporations — city collector — repeal op statute. —Crawford & Moses’ Dig., § 5702, providing for the appointment of collectors of improvement districts by the respective boards of improvement except in the cities of Little Rock and Pine Bluff, was not repealed by Crawford & Moses’ Dig., § 5669, providing that the city clerk shall deliver 'to the “city collector” a copy of assessments of benefits and warrants for collection, the reference to the city collector, instead of to the collectors of the various improvement districts, being a clerical error.
    3. Statutes — repeals.—Repeals of statutes by implication are not favored.
    4. Municipal corporations — liability on collector’s bond. — In view of Crawford & Moses’ Dig., § 5702, providing for the election of collectors of improvement districts by the respective boards of improvement in all cities except Little Rock and Pine Bluff, the clerk and the city collector of North Little Rock was not the collector of improvement districts in such city, and bond given for faithful performance of his duties did not cover a defalcation in regard to funds belonging to improvement districts collected by him.
    Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;
    reversed.

      Roscoe R. Lynn, for appellant.
    Under the statutes, the city clerk and collector was not, by virtue of his office, the collector also for the improvement districts, and the bond to the city against loss to it did not cover losses to the districts. As to bond required of collectors for improvement districts, see C. & M. Digest, § 5702. The authority for the ordinance under which the city collector gave his bond is § 7517, C. &. M. Digest. In so far as the ordinance requires that the bond be conditioned that the collector account for money taken in as collertor for improvement districts, it is in conflict with § 5702, supra, and is void. The act of May 3, 1901, § 7, being C. & M. Digest, § 5669, did not in any way repeal or affect § 5702.

      J. F. Wills, for appellee, city of North Little Rock.
    If it is found that the improvement districts were not protected by the bond, the city should have judgment for the shortage against the appellant.

      Rose, Hemingway, Cantrell & Loughborough, for appellees, improvement districts.
    The act of 1897, carried into Crawford & Moses’ Digest as § 5702, was repealed by the act of 1921, act No. 143, Acts 1901, p. 264, which intrusts the collection of all municipal local assessments to the city or town collector. The bond covers the indebtedness due the improvement districts as well as that due the city.
   McCulloch, C. J.

R. W. Miller was, in April, 1920, elected to the office of city clerk and city collector of North Little Rock (a city of the first class) and, in accordance with an ordinance, he executed his official bond to the city in the sum of $5,000 with appellant as surety thereon, conditioned that he should “ faithfully discharge and perform the duties of his office, and at the expiration of his term of office shall render unto his successor in office a correct account of all sums of money, books, goods, valuables, and other property, as it comes into his custody, as such clerk and collector of said city of North Little Rock, Arkansas, and shall pay and deliver to his successor in office, or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables and other property which shall be in his hands and due by him. ’ ’

Miller resigned in April, 1921, and it was found that he was short in his accounts to the city and also to three separate local improvement districts for which he had collected funds. According to the audit of Miller’s accounts, which has been found to be correct, he owed, the city of North Little Rock $5,531.63, and also owed the three improvement districts, in the aggregate, the sum of $6,734.37, and he had in a bank, to his credit as collector, the sum of $3,843.61.

This action was instituted in the chancery court of Pulaski County by the city of North Little Rock against appellant to recover the amount on the bond. In the complaint the facts were set forth concerning the amount of funds on hand in bank to the credit of the collector, and an accounting was asked as between the city and the improvement district concerning* the application of these funds. The improvement districts were joined as defendants in the action, and each filed a cross-complaint asking for recovery on the bond of the respective pro rata of the liability to eacli of the districts.

The chancery court decided that each of the improvement districts was entitled to protection under the bond jointly with the city of North Little Rock and to share in the recovery pro rata according to their respective amounts due from Miller, the principal in the bond. The court in its decree credited on Miller’s account with the city and each of the improvement districts a pro rata part of the fund in bank, and, after thus ascertaining the net amount of Miller’s shortage with each party, rendered a decree against appellant for a recovery by the city and each of the improvement districts of their pro rata, part of the liability under the bond. Under this decree the recovery against appellant was as follows:

City of North Little Rock..................................$2,198.33
Street Improvement District No. 15............ 1,209.77
Sewer Improvement District No. 1............ 773.83
Street Improvement District No. 16............ 620.82
Street Improvement District No. 18............ 197.25
Total..............................................................................$5,000.00

Appellant prosecuted its appeal to this court, and the city of North Little Rock has cross-appealed.

The first question arising in the case relates to the apportionment of the credits for the funds in bank so as to ascertain the amount of shortage in Miller’s account with the city of North Little Rock and the local improvement districts. The amounts due from Miller were proved beyond dispute, as hereinbefore stated, and it was also proved that the funds collected by Miller from the city and districts were jointly deposited in bank in his name as collector. It was impossible to show from what particular source these funds came further than that they were collections for the benefit of the city and the districts. There is no way, from the testimony, to separate the funds, and, if being shown to be a joint fund, it can only be divided pro rata in accordance with the .amounts due by Miller to each.

In the recent decision of this court in Miller v. State, 155 Ark. 13, which was a criminal prosecution against R. W. Miller for embezzling funds of the city of North Little Rock, we decided, under the same proof as is involved in this case, that the funds belonged to the city and the improvement districts jointly, to be credited pro .rata on the balances due the city and the improvement districts. We think that the chancery court was therefore correct in ascertaining the amount of shortage in Miller’s accounts with the city and the several improvement districts.

Tlie principal question in the case, however, is whether or not the bond protects the improvement districts .as well as the city, so as to permit the improvement districts to share in the recovery.

The ordinances of the city of North Little Rock provide that the city collector shall give bond in the sum of $5,000, conditioned that he will account for and pay all funds coming into his hands which belong to the city or any improvement districts within the city; but the bond in this case was executed to the city alone, and, unless the city collector is, under the statute of this State, constituted as the collector of improvement districts in a city of the first class, the bond does not afford indemnity to the districts for moneys received by the city collector. This phase of the case therefore comes down to the question whether or not the statutes of this State constitute the city collector as the collector of local improvement districts.

Our laws governing the organization of improvement districts and providing for the procedure in their operation began with the statute enacted by the General Assembly in the year 1881. Acts of 1881, p. 161, Mansfield’s Digest, § 825 et seq., Sandels & Hill’s Digest, § 5321 et seq. A section of that' statute (Sandels & Hill’s Digest, § 5360) provided that the board of improvement of local improvement districts should appoint the collector and treasurer of the district, but that section was amended by the act of April 19, 1895 (Acts of 1895, p, 161), so as to provide that in cities of the first class the city collectors should collect the improvement district assessments. The last mentioned statute was again amended by the act of February 11, 1897 (Acts of 1897, p. 23) reenacting the old statute to the effect that the collector and treasurer of local improvement districts should be appointed by the board of improvement, but providing that the cities of Little Rock and Pine 'Bluff should have the power, by ordinance, to make the city collector ex-officio collector of improvement districts. The last mentioned statute has been brought forward by subsequent digesters, and it appears in Crawford & Moses’ Digest as § 5702.

It is contended on behalf of counsel for the improvement districts that this statute was amended by the act of May 3, 1901 (Acts of 1901, p. 264), so as to provide that in all cities the city collector shall be the collector for the improvement districts. The section of that statute which, it is contended, amends the act of 1897, supra, reads as follows:

“Section 7. That § 5337 of said digest (Sandels & Hill’s) be amended so as to read as follows:
“That within forty days after the passage of said ordinance, unless the time be extended by the city or town council, the city clerk, or town recorder shall deliver to the city collector a copy of said assessment of benefits containing a description of said blocks, lots and parcels of land in said district, and the amount assessed on each, duly extended against each lot, block or parcel of land, and shall deliver it with his warrant attached thereto the city or town collector, which warrant may be in the following form:
“State of Arkansas.
“City (or town) of..........................................ss.
“To the collector of said city (or town) of..........................................
“You are hereby commanded to collect from the owners of real property described in the annexed copy of ordinance No............., the assessments on the same and as extended thereon for the current year and to pay to the treasurer of Local Improvement District No____________of said city (or town) within sixty days from this date.
“Witness my hand and seal of office on this.............day of............, 19.............
“And like writs shall be issued annually until said local assessment shall be fully paid.”

That section has also been brought forward in Crawford & Moses’ Digest as § 5669. There is no direct repeal by this statute (the act of 1901) of the former statute (1897) authorizing the board of improvement to appoint the collectors. If the repeal or amendment has been accomplished, it must be by implication only, and such repeals are not favored. That principle is elemental and needs no citation of authorities to -support it. This court has often announced that rule of construction. There is no reference made in this statute to the act of 1897, but, on the contrary, the section under consideration expressly refers to another statute, viz., § 5337 of Sandels & Hill’ Digest, which relates merely to the method of certifying the assessments by the city clerk. At the time of the enactment of § 5-337, Sandels & Hill’s Digest, the statute provided that assessments for local improvements should be according to valuation as appraised for general taxation purposes, and that section provided that, immediately after the passage of the ordinance authorizing the improvement, the city clerk, should procure, at the expense of the district, a copy of the last assessment made by the county assessor and deliver the same to the collector of the improvement district, with his warrant attached, directing the collection of the assessments. The manifest purpose of the amendment of § 5337 was to give further time for the certification of the list of assessments, giving forty days after the passage of the ordinance, and also providing that there should be certified a list of assessments as appraised by the assessors of the district, instead of a list of valuation made to the county assessor as required under the former statute. That part of the section which prescribes the form of the certificate was a mere formula and nothing more, and it cannot be presumed that the lawmakers intended in this incidental way to repeal or amend an important feature of the former statute. If such had been the intention, the lawmakers would doubtless have adopted more direct language expressing that intention. As an indication that such a change was not in the minds of the framers of the statute in prescribing the formula for certifying the assessments, it was provided that the warrant should be directed to the collector of the city or town, whereas there is no such office as collector of an unincorporated town. The statute does not provide for any such office, and that office pertains only to cities. If the statute in question is construed to repeal the former statute, then there is no provision at all for a collector for local improvement districts in incorporated towns.

We are constrained therefore to hold that the act of 1901, supra, was not intended to repeal any former statute, but that the provision for certifying the assessments merely prescribed a form in which there occurred a clerical error with respect to certifying to the city collector, instead of to the collector of the improvement district.

We hold, in accordance with this view, that the act of 1897 (‘Crawford & Moses’. Digest, § 5702) is still in force, and provides for the election of collectors of improvement districts by the respective boards of improvement in all municipalities except in the city of Little Bock and in the city of Pine Bluff, Miller was therefore not a collector of the improvement districts cle jure, and the bond did not cover his defalcations as to funds received by him which belonged to the improvement districts. Having received the funds, however, for the benefit of the improvement districts, he became, in fact, a bailee, and was subject to prosecution for embezzlement, as we announced in the former opinion in the criminal case against Miller, but the sureties on his official bond are not liable for the defalcation, for the reason, as before stated, that Miller was not, in law, the authorized collector of the districts.

It follows therefore that the decree was wrong in awarding any sum to the0 improvement districts, but the bond protects the city of North Little Bock to the extent of Miller’s defalcation of said funds. After crediting Miller’s defalcation to the city with the pro rata of the funds in 'bank, there was a deficit of $3,703.04, and the city is entitled to a decree against the surety on the bond for that sum.

The decree is therefore reversed and dismissed as to the improvement districts, and a decree will be entered here in favor of the city of North Little Rock for the snm mentioned above, to which it is entitled. This decree will be entered here as of the date of the decree below, so as to bar interest from that date. It is so ordered.


text:
    Hawkins Brothers v. Lesser-Goldman Cotton Company.
    Opinion delivered February 26, 1923.
    1. Account stated — action to surcharge — jurisdiction of equity. — An action to recover an additional amount alleged to . be due on an account stated, alleging fraud therein, is an action to surcharge the settlement, rather than an action to recover damages for deceit, and is within the jurisdiction of equity, and is properly transferable to that court.
    2. Account stated — action to surcharge — burden of proof. — In an action to surcharge an account stated and settled and recover an alleged balance, the burden is on the plaintiff to impeach the accounts already furnished and accepted.
    3. Account stated — conclusiveness.—Where, in settling an account, a price is agreed upon for certain damaged cotton, those accepting such price with full knowledge are bound thereby, and cannot afterwards object to it in an action to surcharge the account stated and settled.
    Appeal from Little River Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      Paul Jones, Sr., and James D. Head, for appellants.
    1. This case comes well within the principles announced by this court in Sanders:v. Berry, 139 Ark. 447, 457, as disclosed by the evidence whereby it is made plain that appellee sought to induce the appellants, and did induce them, to believe that the weights on which the settlement was made were the actual compress weights after conditioning.

      The fact that appellants might have learned the true weights hy going to Hope is no defense to appellee. 71 Ark. 305.
    2. The circuit court erred in transferring the case to equity over the objections of the plaintiffs, and the latter court erred in refusing to remand the same to the law court. 40 Ark. 189; 77 Ark. 261; 73 Ark. 542; 101 Ark. 195, syllabus; 76 Ark. 497, 501; 74 Ark. 46; 70 Ark. 189, 191; 6 Ark. 79; Id., 317.

      C. E. Johnson and A. D. DuLaney, for appellee.
    1. As is admitted by the complaint, this is a suit to surcharge an account which has been fully settled and paid. This can only be done in equity, upon specific charges of fraud, mistake or error. Being an account fully stated, agreed upon and paid, more proof is required to surcharge it than is required to surcharge an account stated. 1 R. C. L., § 16, Accounts and Accounting ; Id., § 17; 1 C. J. § 357.
    If the circuit court, as is contended by appellant, had concurrent jurisdiction with the chancery court in this case, since it was transferred to the chancery court and there tried, the decision of the latter court will not be reversed unless there was manifest error. 83 Ark. 1.
   McCulloch, C. J.

Appellee, a foreign corporation with its principal place of business at St. Louis, is engaged in the cotton business and has branch offices at various points in Arkansas, including Texarkana, and on December 23, 1918, appellee, through' its Texarkana office, purchased from appellants, who were engaged in the mercantile business at the town of Foreman, Little River County, 809 bales of cotton, to be delivered at the compress at Hope, Arkansas. The agreed price for the cotton was 30% cents per pound, the price to be paid in advance on the basis of what the parties termed “country weights,” that is to say the book weights kept by the appellants, and there was to be a final settlement according to the compress weights. The cotton was in damaged condition on account of exposure to weather, and it was agreed that the cotton was to be “conditioned,” that is to say, the bagging and ties were to be removed and the damaged cotton removed, appellants to pay the cost of labor, and that the “pickings,” that is to say, the damaged cotton removed, were to be taken by appellee at the highest prices paid at that time for such cotton.

The gross weight of the cotton, as invoiced by appellants, was 427,075 lb., and appellees paid for the cotton in advance on the basis of that weight. The cotton was shipped to Hope, as agreed, and was there “conditioned” and repacked, and on January 30, 1919, appellee furnished to appellants an itemized statement of the amount of cotton, according to the compress weights, aggregating 422,689 lbs. which, at the stipulated price of the cotton, made a debit of $1,337.73 against appellants. Another statement furnished on the same date showed the cost of labor of handling the damaged cotton, the price of the bagging, and also the weights of the pickings at 13,661 lb., and the price, at 4½ cents, aggregating $614.74, which amount was credited to appellants, after charging them with the cost of handling, leaving a credit of $85.69. Appellants immediately repaid the amount due to appellee according to these statements, but later claimed that they had received information that the compress weights of the cotton were falsely understated in the account furnished to appellants, and that the price of the pickings should have been 9 cents a pound, instead of 4% cents.

After communications between the parties, extending over a period of several months, appellants instituted this action in the circuit court of Little Eiver County to recover, on account of the alleged false representations, the additional amount claimed for the price of the cotton.

It is alleged in the complaint that appellee’s agents misrepresented to appellant the amount of the weights, and, instead of there being a shortage of 4,386 lb. in the weights, as shown in the .statement furnished to appellants, there was, in fact, a gain of 1,277 lb., and that appellants were entitled to recover the sum of $1,728.16 on this account, as well as an additional sum on account of the difference in the-price of the pickings, making a total of $2,020.95 sought to be recovered.

Appellee answered the complaint, denying all the allegations with respect to the false representations concerning the weights of the cotton, and also denying the allegations with respect to the price to be paid for pickings.

There was a cross-complaint, in which it was alleged that there was even a greater loss than that set forth in the statement, as subsequently ascertained, and there was a prayer for the recovery of the additional amount of $250 from appellants.

Appellee also moved to transfer the cause to the chancery court, which was done over appellant’s objections. On final hearing of the cause, the court dismissed the complaint and also the cross-complaint, and appellee accepted the decree and has not cross-appealed.

It is first insisted that the chancery court is without jurisdiction, that the circuit court erred in transferring the cause, and that the chancery court erred in refusing to remand it. The contention is that the action is nothing more nor less than one to recover damages on account of alleged fraud and deceit, and that the remedy at law is adequate.

According to the pleadings in the case, to which we must look for the purpose of determining the jurisdiction of the court and in testing the correctness of the court’s ruling in transferring the cause to equity, there was an account stated between the parties and settled, and this is an action to surcharge that settlement on account of fraud and to recover the amount alleged to be actually due. It is not merely a case to recover damages on account of deceit, as, for instance, where a sale of property is induced by fraud. The correction of accounts stated, and settlement thereof for fraud or mistake, is within the original common-law jurisdiction of courts of chancery. It is unnecessary to determine whether or not the jurisdiction of the chancery court is exclusive, for undoubtedly the jurisdiction is at least concurrent, and, under our statute, it is proper to transfer a cause from the law court to the chancery, where “all of the issues are such as heretofore were cognizable in chancery, though none were exclusively so.” Crawford & Moses’ Digest, § 1045.

• The only issue related to the alleged fraud in the account 'furnished to appellants by appellee, and, as we have seen that this was at least within the concurrent jurisdiction of the chancery court, the case was properly transferred to that court.

The evidence was to some extent conflicting as to the correct weights of the cotton when reweighed at the compress, but we are of the opinion that the evidence preponderates in favor of the findings of the chancery court. The burden was on appellants to successfully impeach' the accounts furnished by appellee and accepted by appellants. They offered no direct testimony as to the correct weights of the cotton, but the testimony they introduced merely tended to show that the weights had not been correctly stated. On the other hand, appellee adduced direct testimony by at least two witnesses that the weights furnished were correct.

As to the issue concerning the price of the pickings, there was also testimony preponderating in favor of the finding of the chancellor. Appellants admitted that at the time a settlement was made for the pickings the price offered by appellee was discussed, and at first objection was made to it, but the price was finally accepted, and settlement was made accordingly. After acceptance of the price, under those circumstances, it is too late for appellants to object that the price was insufficient. They knew then all that they know now concerning the price of the pickings, and the acceptance of the price offered’ by appellee was binding on the parties.

Our conclusion is that the decree is supported on both branches of the case by sufficient testimony, and it. is therefore affirmed.


text:
    Western Crawford Road Improvement District v. Missouri Pacific Railroad Company.
    Opinion delivered February 26, 1923.
    1. Highways — abandonment of improvement district — preliminary expenses. — The method of assessment prescribed by a special statute creating a road improvement district in case the improvement is abandoned, namely, that the preliminary expenses shall be paid by a levy of a tax based on the assessed value for State and county taxation, held valid.
    2. Highways — legislative assessment op benefits. — The legislative determination that the preliminary expenses of an abandoned highway improvement, levied on the basis of the assessed value of the property in the district for State and county taxation, would not exceed the anticipated benefits from the construction of the improvement is conclusive unless shown on its face to be arbitrary and unreasonable.
    3. Highways — legislative method of assessing benefits. — A legislative assessment for paying the preliminary expenses of an abandoned road district by pro-rating such expenses according to the assessed valuation of property in the district for State and county taxation is not shown to be arbitrary and unreasonable by proof that an incomplete assessment of benefits on plaintiff’s property for the completed improvement was less than the amount they would be required to pay for preliminary expenses under the legislative method of assessment.
    Appeal from Crawford Chancery Court; J. 7. Bourland, Chancellor;
    reversed.

      E. L. Matlock, for appellant.
    The court erred in levying* the preliminary expenses upon a basis of the benefit assessment which 'had been made in the district and abandoned, instead of upon the basis of the assessed valuation of the property for State and county taxation, as required by the act creating the road improvement district, § 25. 151 Ark. 47; 153 Ark. 5.

      Thos. B. Pryor, for appellee, Missouri Pacific Railroad Co.; Warner, Hardin & Warner, for appellee, St. Louis-San Francisco Railway Co.
    Where the amount of the tax to pay preliminary expenses exceeds the anticipated benefits, such an exaction is not warranted, and where the evidence shows that the tax exceeds 'the benefits, and the assessment of benefits has been made under the provisions of the act, the only fair -and just basis for a tax to pay the preliminary expenses would be the benefits as made- by the assessors under -oath. 153 Ark. 5, 239 S. W. 722; 107 Ark. 285.
   McCulloch, C. J.

A road improvement district designated as Western Crawford Road Improvement District was created in Crawford County by -special statute (unpublished) at the extraordinary session of the year 1920, and there were proceedings under the statute up to the assessment of benefits by the assessors and the- filing of the -list of assessments with the clerk of the county court for approval by the board of -commissioners. The statute contained the usual provisions with reference to giving notice of the assessments and providing for a hearing upon the correctness of the assessments-.

On the day provided for the hearing there were numerous protests made by owners of property to further proceedings toward the construction of the improvement, on the ground that the improvement was too expensive,and that the cost would probably exceed the benefits, and the -commissioners, without acting upon the list of -assessments filed by the assessors, decided to abandon the whole project as being impracticable. There were no further proceedings towards -carrying out the construction of the improvement, but there had been preliminary expenses incurred, and the statute contained the following provision with reference to the payment of such expenses:

“Section 25. In case, for any reason, the improvement contemplated by this district is not made, the preliminary expense shall be a first lien upon all of the lands in the district, and shall be paid by a levy of a tax thereon upon the assessed value for the county and State taxation, which levy shall be made by the chancery court of Crawford County and shall be collected by a receiver to be appointed by said court.”

The commissioners of the district, pursuant to the provisions of that part of the statute quoted above, prepared an itemized statement or list of the preliminary expenses, and filed a petition in the chancery court of Crawford County, setting forth in detail all the proceedings in connection with the preliminary expenses incurred, and asked the court to levy a tax upon the property in the district to raise funds for the payment of such expenses. The court disallowed one of the claims, but no appeal has been.prosecuted from that part of the decree. The remainder of the claims were approved by the chancery court and ordered paid, but in the final decree rendered the court refused to order payment of assessments in accordance with the directions of the statute quoted above, but ordered that the payments be made in proportion to the anticipated benefits assessed by the board of assessors.

It appeared from the proof that the property of two railroad corporations whose lines of railroad ran through the district would, under the method of assessment prescribed by the statute, amount to more than the whole of the anticipated benefits as assessed by the assessors of the district. It is shown that the assessed benefits of the Missouri Pacific Railroad were $1,960, whereas the levy of the tax on that property, according to the “ assessed value for county and State taxation,” would amount to $2,396.62. The board of assessors had assessed the property of the St. Louis-San Francisco Railway Company at $2,341.50, and it is shown that the amount to be paid on a levy in accordance with the provisions of the statute would be $2,769.40.

The chancery court based its conclusion on the ground that the assessment made by the board of assessors was conclusive as to the amount of anticipated benefits from the construction of the Improvement, and that the owners of property could not be taxed for preliminary expenses in excess of the anticipated benefits.

It will be observed, that the statute involved in this inquiry expressly provides that, in case the contemplated improvement is abandoned, “the preliminary expense shall he a first "lien upon all of the lands in the district, and shall be paid by a levy of a tax thereon upon the assessed value for county and State taxation.” This court has decided heretofore that the method of assessment prescribed in this statute is valid as applied to the payment of a completed improvement (St. L. S. W. Ry. Co. v. Board of Directors, 81 Ark. 562), or for the method of payment of preliminary expenses. Board of Directors v. Dunbar, 107 Ark. 285; Neterer v. Dickinson & Watkins, 153 Ark. 5. The decisions on this question were based on the ground that the statute constituted a legislative, determination that benefits would accrue in proportion to value. Special application of this rule was made in the Neterer case, supra, where a different method of assessment had been provided under the statute for payment of the' cost of the improvement, if completed. In that connection we said:

“The two methods of assessment are for wholly different purposes. One is for the payment of the cost of the completed improvements, which must be by taxation based upon and apportioned on benefits to accrue. The other is a mere provision for the payment of preliminary expenses where the improvement is not undertaken at all. This provision necessarily implies a determination by.the Legislature that there are anticipated benefits, at least to the extent of the cost of the preliminary expenses, apportioned according to assessments for county purposes, but it is neither unfair nor violative of any right of landowners to provide that, in the event the contemplated improvement is not undertaken, the preliminary expenses shall be paid according to value, and not according to anticipated benefits. The distinction lies between the payment of preliminary expenses and payment of the actual cost of the improvement.”

It is true that we reiterated in that case what had already been held in the Dunbar case, supra, that assessments for payment of preliminary expenses could not be exacted in excess of anticipated benefits, but in each of those cases we emphasized the principle that a provision for payment of preliminary expenses necessarily implied a legislative determination that the cost of the preliminary expenses would not exceed the anticipated benefits from the construction of the improvement. The legislative determination is conclusive unless shown on its face to be arbitrary and unreasonable. Desha Road Imp. Dist. v. Stroud, 153 Ark. 587, and cases cited therein.

There is nothing shown in the present case to overcome the legislative determination except the unapproved assessment lists filed by the board of assessors. The assessment was incomplete because it was never approved by the board of commissioners. The point was never reached for the approval, for there was an abandonment of the district before this was done, and we do not certainly know what the assessments against the railroads would have been, had the assessment of benefits proceeded to finality.

Counsel for appellees lay stress upon the statement in the opinion in the Neterer case to the effect that the payment of preliminary expenses must not exceed the anticipated benefits, but this was a mere reiteration of what we have held in other eases in regard to taxation upon property and was a mere statement of the principle, without undertaking to determine how it might be shown that the taxes exceeded those benefits. We have always adhered to the principle that the right to tax for local improvements is limited to the amount of anticipated benefits, but, at the same time, we have consistently held that the legislative determination of the amount of benefits, or the legislative provision for the method of determining benefits, was conclusive unless shown to be arbitrary. So we hold now that this legislative determination is conclusive, and it is not sufficient to overcome this by showing that an incomplete assessment of benefits made by the board of assessors was less than the amount of taxes that the appellees would be required to pay under the other method prescribed by the statute.

The chancery court erred therefore in refusing to follow the statute, and the decree is reversed, and the cause remanded with directions to enter a decree levying taxes on the property in the district in accordance with the terms of the statute; that is to say, “upon the assessed value for county and State purposes.”

Wood and Hart, JJ., dissent.


text:
    Bacon v. Road Improvement District No. 1.
    Opinion delivered February 26, 1923.
    1. Highways — description op lands in improvement district. — Where the Saline River farmed the boundary between Howard and Sevier counties, description of lands in the order creating a road improvement district in Howard County and in a curative statute affecting it as lying “on the left 'bank of the Saline River” is to be construed' as referring ta that portion of the particular section which lies on the east side of that river which is in Howard County.
    2. Constitutional law — impairment of obligation op contract.— Special Acts 1921, No.' 594, excluding from a road improvement district half of the lands originally embraced therein after bonds had been issued for the improvement, is unconstitutional both because it imposes upon the remaining lands the total cost of the improvement and because it impairs the obligation of the contract of the district with its creditors.
    3. Highways — validity op establishment of improvement district. —Where a road improvement district was created under a general statute, the fact that a special statute attempted to' dismember it, thereby impairing the obligation of its contracts, affords no ground for nullifying the. district.
    Appeal from Howard Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      W. C. Rodgers, for appellants.
    Since the answer to the cross-complaint traverses only the allegations to the effect that when the district issued its bonds no assessment of benefits had been made, and that, when act 594, Acts 1921, was passed, the bonds of the district had been sold and contracts for the payment of money borrowed had been entered into by the district, all the other allegations of the cross-complaint must be taken as true. Crawford & Moses’ Digest, § 1231; 56 Ark. 73, 79. The road district was not legally formed because the boundaries were not definitely fixed. The boundaries of such districts must be as accurately and definitely specified as is required for a valid deed. 71 Ark. 211; 106 Ark. 83; 143 Ark. 83; 144 Ark. 240, 244; 122 Ark. 491; 139 Ark. 574; 130 Ark. 70. The Legislature by the curative act, vol. 1, Road Acts 1919, p. 201, made no change in the description of the property of the district except to say it was in Howard County; but, if the district as organized by the county court was illegal and void, how could the curative act legalize and validate it? House v. Road District No. 4, 154 Ark. 218; 122 Ark. 491, 501, 126 Ark. 416, 418, 419. The formation of the district was invalid, because it called for all the property’in the district, which necessarily includes personal property, and the curative act offends in the same way, in describing, in addition to the lands, all the property in the -town of Dierks and all other towns in the district. 147 Ark. 181, 183. It is not sound to say that, because the bonds of the district had been sold and contracts for the payment of money borrowed had been entered info by the district, the special act No. 594 is therefore unconstitutional and void, since, if the proceedings of the district and its officers were void, and its officers without authority to enter into any contract at all, there is nothing for the Constitution to protect. 147 Ark. 252, 266; 40 Ark. 251; 111 IJ. S. 400; 142 Ark. 378. The law authorizing the expenditure of mone3^ or the levy of a tax for road purposes contemulates not onH a legal and regular formation of the district but also a len’al and regular assessment, of benefits. 119 Ark. 188: 149 Ark. 476; 151 Ark. 398, 404. The decree rendered in June, 1920, in so far as it purported to hold the district regularly formed, was erroneous, because the law which alone could give it life has not been complied with. However, that adjudication is not binding upon persons who were not parties to it; and these interveners, any one of whon^ has a right to maintain this suit, were not parties to that litigation. 88 Ark. 355; 52 Ark. 541; 54 Ark. 645; 108 Ark. 306; 141 Ark. 288; 33 Ark. 704; 141 Ark. 140; 101 U. S. 160; Dillon, Municipal Corporations, § 919; 55 Wis. 161.

      Abe Collins, Epperson & Jackson, and Buzbee, Pugh & Harrison, for appellees.
    The validity of the district and the assessment of benefits made therein have been determined by judicial decision, and are no longer open to question. The special statutes, Road Acts 1919, vol. 1, p. 201, and act 285, extraordinary session 1920, were before this court in the case of Payne v. Roacl Improvement District, 149 Ark. 491, and their validity sustained. See also 152 Ark. 170. There is no merit in the contention that these -appellants are not bound by the decree rendered in 1920 sustaining the regularity of the formation of the district, from which no appeal was taken. That suit was brought by thirty-six taxpayers, under the rule that such taxpayers acted for the benefit of the other taxpayers in like situation. The only question open for decision is the validity of the act No. 294, Acts 1921, which undertook to eliminate a. large quantity of land from the district. This court, in 152 Ark. 170, declined to pass upon it for reasons there stated. That act was invalid, being* an impairment of the obligations of the contract between the district and the purchasers of the bonds, and as placing an undue burden on the lands remaining in the district. 130 Ark. 70; 139 Ark. 574; 145 Ark. 49; Constitution, U. S., art. 1, § 10; 150 Ark. 94.
   McCulloch, C. J.

The road improvement district which is plaintiff in this action was originally created under the general statutes by an order of the county court on October 7, 1918, but there was a special statute enacted by the General Assembly of 1919, curing irregularities in the organization and establishing the district as a valid road improvement district covering the territory embraced in the original order creating it. The assessments of benefits were completed, a contract was let for the construction of the road, and a great portion of the improvement was constructed — eleven miles of the seventeen-mile length of the proposed road. Bonds in the sum of $130,000 to raise money to pay for the cost of the improvement were also issued and sold subsequent to the enactment of the curative statute referred to above.

The present action was instituted by the board of commissioners against all delinquent owners of land in the district, including’ appellants, and an appeal has been prosecuted from the decree of the chancery court decreeing payment of the delinquent assessments and declaring a lien on the lands.

Appellants answered, and filed an answer and cross-complaint attacking the validity of the assessments and also the validity of the district itself.

So far as concerns the correctness and validity of the assessments, it is sufficient to say that the attack comes too late, since the assessments have been approved and have become final. There were attacks on the validity of the assessments by owners of property who protested against them in apt time, and the cases were brought to this court from the circuit court, where the questions were adjudicated on appeal from the county court. Payne v. Road Imp. Dist., 149 Ark. 491, 152 Ark. 170. On the last appeal of the case we affirmed the judgment of the circuit court approving the assessments.

The validity of the district is assailed on the ground that the description of the lands embraced in the district were in many instances so vague that it is impossible to determine what lands were meant to be described, and that the district, for that reason, is void.

In the order of the county court creating the district, as well as in the special act of the Legislature curing irregularities and establishing the district, the lands were described by sections and subdivisions thereof, and some of the descriptions specify certain sections “on the left bank of the Saline River”; the lands are described, of course, as being in Howard County. The Saline River forms the boundary between Howard and Sevier coun.ties. These are the descriptions which counsel for appellants insist are insufficient. We are of the opinion, however, that the words of descriptions giving the number of the section and stating that they are on the “left bank of the Saline River” clearly refer to that portion of each section which lies on the east side of the river and is in Howard County. Bush v. Delta Road Imp. Dist., 141 Ark. 247.

The General Assembly of 1921 enacted a special statute (act No. 594) excluding from the district about half of the lands originally embraced therein, and the lands thus eliminated from the district had been assessed more than half of the total benefits. It is contended now by counsel for appellants that the effect of this statute was to nullify the district altogether, for the reason that the Legislature had no power to impose the total cost of the improvement on the lands remaining in the district after the exclusion of others.

Counsel is correct in the contention that the Legislature had no right to thus enlarge the burden on the lands remaining in the district. This, however, affords no reasons for nullifying the district, but it does afford grounds for declaring the act void. The act is also void as an impairment of the obligation of a contract between the district and its creditors.

It is shown by stipulation that, subsequent to the enactment of the curative statute, the larger portion of the •improvement was constructed and that bonds were issued in the sum of $130,000. In the last case which was before us involving the question of the asessments in this case (152 Ark. 170) our attention was called to the act of 1921, supra, but we declined to pass upon its validity for the reason that it was not shown that there had been any indebtedness incurred prior to the passage of the statute.

It needs no citation of authorities to support the view that a statute dismembering a district after obligations are incurred constitutes an attempt to impair the obligation of a contract, and is void; that falls within the inhibition of our Constitution which declares that no law shall ever be passed impairing the obligation of contracts. Constitution of 1874, art. II, sec. 17. The attacks upon the validity of the district are therefore unfounded.

Decree affirmed.


author: Hart, J.,

text:
    Thompson v. Short.
    Opinion delivered February 26, 1923.
    1. Contracts — breach—instruction.—An instruction, in an action for damages for the breach of a contract wherein defendant counterclaimed asking damages for breach by plaintiff, that, if plaintiff failed to comply with the contract by failing to pay defendant, then defendant had a right to treat the contract as null and void and recover, held erroneous, as giving defendant the right to recover regardless of whether he had breached the contract or not.
    2. Evidence — written contract — subsequent parol agreement.— Proof of a subsequent parol agreement is admissible to change the terms- of a written contract.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.
    Statement of Facts.
    W. A. Thompson instituted this action against W. J. Short to recover damages for an alleged breach of contract whereby the defendant agreed to clear 165 acres of land in White County, Arkansas.
    The defendant filed an answer and cross-complaint in which he denied having breached the contract on his part, and asked for damages on account of an alleged breach of the contract by the plaintiff.
    The contract between the parties is in writing, and provides that W. J. Short should clear 165 acres of land for W. A. Thompson in White County, Arkansas, and should receive as compensation therefor the sum of $50 for sixty acres of said land, which had already been cleared but had grown up with underbrush, and the sum of $5 per acre for the remainder of the land, together with the timber on it. The contract provides for payment to be made as the clearing progresses in certain stipulated amounts, which need not be set out in detail. The contract also provides that the land should be all „ cleared by the first of April, 1918.
    The time of the performance of the contract was extended on account of the World War, and numerous letters passed between the parties in regard to the extension of the time of the performance of the contract. The correspondence is too long to be set out in this opinion, and indeed it is not necessary in order to discuss the issues in the appeal.
    It appears from the plaintiff’s own letters that he extended the time of the performance of the contract until January 1, 1920. According to his testimony, the defendant did not clear the land in accordance with the terms of the contract.
    According to the testimony of the defendant, he cleared and prepared for cultivation one hundred acres of the land. This included the sixty acres which had formerly been cleared, but which had grown up in bushes to a certain extent, and had some dead timber standing on it. The plaintiff owed him, under the terms of the contract, at least $100, which he refused to pay him. The defendant demanded this amount of the plaintiff orally in June, 1920, and the plaintiff neglected and refused to pay him. In July, 1920, the defendant wrote the plaintiff a letter in which he refused to further perform the contract because the plaintiff had not paid him in accordance with its terms for the clearing that he had already done.
    Other facts necessary for a decision of the issues raised by the appeal will be stated or referred to in the opinion.

      The jury returned a verdict for the defendant in the sum of $100, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      Brundidge & Neelly, for appellant.

      Miller & Yingling, for appellee.
   Hart, J.,

(after stating the facts). It is insisted by counsel for the plaintiff that the court erred in giving instruction No. 1 at the request of the defendant. The instruction reads as follows:

“You are instructed that if you find that the plaintiff failed to comply with the contract in that he failed to. pay the defendant for work done under the contract as required by the terms of the contract, then the defendant had the right to treat the contract as null and void, and your verdict will be for the defendant.”

The instruction is erroneous because it gives the defendant the right to recover if the plaintiff failed to pay him for the land which he had already cleared, regardless of the fact of whether or not the defendant committed a breach of the contract on his part. The contract provides that the clearing of the land should be completed by .April 1, 1918, by the defendant. It appears from the letters passed between the parties that the time for the performance of the contract was extended until January, 1920. The undisputed'evidence shows that sixty-five acres of the land remains to be cleared, and, according to the testimony of the plaintiff, the defendant did not in all respects comply with the terms of' the contract in the land which he did clear.

Then too, according to the plaintiff’s testimony, the defendant did not demand payment for the land which he had cleared until some time after the time limit for finishing the clearing had expired. If the defendant committed a breach of the contract oil his part by not clearing the land, the plaintiff would be entitled to recover damages on this account, and might offset the amount which was due the defendant for work already done by the damages which he was entitled to recover from the defendant for the non-performance of the contract by the defendant. In this connection it may be stated that the damages claimed and testified to by the plaintiff for the alleged breach of the contract by the defendant would amount to more than the amount allowed the defendant by the verdict of the jury. Hence the court erred in giving this instruction.

In view of another trial of the case we call attention to the fact that instruction No. 3, given by the court at the request of the plaintiff, is erroneous, although no assignment of error is predicated upon the action of the court iii giving this instruction. The instruction reads as follows :

“You are instructed that if you find that the parties made and entered into the written contract sued on in this case, the defendant cannot, under the law, excuse a breach of said contract by setting up a different and verbal contract claimed to have been made by the defendant with the plaintiff at a different time and subsequent to the written contract sued on.”

It is well settled in this State that no rule of evidence is violated by allowing proof of a subsequent parol agreement changing the terms of a prior written contract. Caldwell v. Dunn, 156 Ark. 126..

In view of a new trial of the case and the fact that additional testimony may be introduced by the parties, we do not pass upon the assignment of error that the evidence is not sufficient to support the verdict.

For the error in instructing the jury, as indicated in the opinion, the judgment must be reversed, and the cause remanded for a new trial.


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    Belford v. Abston-Wynne & Company.
    Opinion delivered February 26, 1923.
    1. Pledges — necessity of delivery. — Delivery of pledged property is absolutely necessary, and there can be no privilege under a pledge, in the absence of delivery, as against a third person.
    2. Pledges — sufficiency of delivery — There was no delivery of possession of a crop which a corporation agreed to pledge to its manager where the manager was already in possession and apparently retained possession for the corporation, and nothing further was done to transfer the property.
    3. Appeal and error — evidence not appearing in record.' — The contention of defendant that a note transferred to him as collateral security was secured by a chattel mortgage on a crop of cotton will not be considered on appeal where the note and mortgage were not introduced in evidence.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    Abston-Wynne & Company brought this suit against Harry Belford and Frank Taylor to enjoin them from interfering with their possession as mortgagees of a certain crop and other personal property in St. Francis County, Ark. Subsequently the plaintiffs amended their complaint and asked for a foreclosure of their mortgage.
    The defendants claimed the property under a pledge to secure an existing indebtedness, and filed a cross-complaint against the plaintiffs for damages for an alleged breach of contract to furnish them funds with which to gather the crop in dispute.
    It appears from the record that the plaintiffs are partners under the firm name of Wynne & Co., as cotton factors, in Memphis, Temí. J. C. Hooten & Co., an Arkansas corporation, became indebted to them in the sum of approximately $50,000. • J. C. Hooten was the owner of nearly all of the stock in said corporation, and was engaged in farming on a large scale in Poinsett and St. Francis counties in the State of Arkansas. J. C. Hooten had charge of the business in Poinsett County and Harry Belford and Frank Taylor had charge of the business in St. Francis County. Harry Belford was the manager and bookkeeper. J. C. Hooten & Co. also ran commissaries in connection with its farming operations in both counties. Harry Belford was working for J. C. Hooten at a salary of $150 per month during the year 1920. None of his salary for that year was paid, and he also furnished the corporation $150 of his own money.
    According to the plaintiffs, in August, 1920, J. C. Hooten and Harry Belford came to their place of business in Memphis, Tenn., for the purpose of making a contract with them to furnish money with which to gather the crops. On the 12th day of August, 1920, J. C. Hooten & Co. executed a mortgage to Abston-Wynne & Co. to secure $10,000 which was to be furnished in gathering and marketing the crop on the land owned by said corporation in St. Francis County, Ark. The mortgage was duly executed and filed for record on the 6th day of September, 1920. Subsequently, J. C. Hooten & Co. became further indebted to Abston-Wynne & Co. for advances made under the mortgage to be used in gathering the crop.
    At the time the contract,for the advances to be used in gathering the crop was made, Abston-Wynne & Co. understood from J. C. Iiooten and Harry Belford that the latter was the manager and in possession of the crop and personal property on the farm as such manager. No information was given them from which it could be inferred that Harry Belford or Frank Taylor had any claim or interest in the crop. After making certain advances, Abston-Wynne & Co., deeming themselves insecure, sent an agent to see J. C. Hooten about taking possession of the crop and gathering it in order to indemnify themselves from loss under their mortgage. Upon being approached about the matter, J. C. Hooten made some evasive answer and told the representative vof Abston-Wynne & Co. that he thought that they had already taken possession of the crop. On the next day he left the county, and has not been heard of since. Harry Belford and Frank Taylor refused to deliver possession of the -crop to Abston-Wynne & Co., and claimed it had been delivered to them in pledge by J. C. Hooten to secure them for their wages. Hence this lawsuit.
    According to the testimony of Harry Belford, J. C. Hooten first turned over to him, as collateral' security for his unpaid salary, a note for $1,200, which was secured by a mortgage on a pair of mules and a wagon. We quote from his testimony the following:
    “Q. What, if any, agreement did he make with you later about the crop and the other property when he couldn’t pay you? A. Well, he was over there later, and I asked him for some money, but he said he didn’t have any, and said that I could get my money out of the crop, and all the farming tools or whatever was there, but later said he would just turn it all to me — to Frank Taylor and I.”
    We also quote from his testimoiry what occurred at the time J. C. Hooten went to Memphis in August to see Abston-Wynne & Co. and make arrangements with them about getting money with which to gather the crop. On this point Belford testified as follows:
    “Q. Tell now what agreement you made there in the presence of Mr. Hooten with Abston-Wynne about this cotton crop. A. We went up there, and there wasn’t any one there but Mr. Wynne. So Mr. Hooten, Mr. Wynne and I were in Mr. Abston’s office . Mr. Abston was gone somewhere, I don’t know where, so he told Mr. Wynne it was impossible for him to be over there at the farm, as he had to keep hooks there at Tyronza, and that whenever he left there things might as well be shut down, because they wouldn’t do anything there, and he said he had just turned everything to me over there, and wanted him to deal with me. So Mr. Wynne asked him what kind of an agreement he wanted to make, and he told him he had gone as far as he could with that crop over there without getting some help, so Mr. Wynne asked him how much help he would need. He said he was so far behind with .the payments over there that he didn’t know, and we told him, as near as we could, about what we were behind. Q. Were you talking? A. Yes sir. Q. To Mr. Wynne? A. Yes sir.”
    The chancellor found the issues in favor of the plaintiff and dismissed the cross-complaint of Harry Belford and Frank Taylor for want of equity. It was also decreed that the plaintiffs were entitled to a foreclosure of their mortgage.
    Harry Belford alone has appealed.

      C. T. Bloodworth, for appellant.
    The property was pledged and delivered to Belford to secure his debt and that of his co-worker. He is entitled, to have his money first out of the property. 98 Ark. 379; 21 B. C. L. 640,' § 7; 31 Ark. 34. ' '

      Mann & Mann, for appellee.
    Appellant’s claim is fictitious and without merit. The court properly dismissed the cross-complaint.
   Hart, J.,

(after stating the facts). It is elementary law that the delivery of pledged property is absolutely necessary to the life of the contemplated pledge, and that, without such possession in the pledgee, there can be no privilege thereunder as against a third person. Lee Wilson & Co. v. Crittenden County Bank, 98 Ark. 379. This is not a case where a pledgee has the pledged property already in his possession, as by a deposit or a loan, so that the very contract would transfer to him possession of the property as a pledge. Here Belford was not in possession of the property for himself; but held possession of' it for J. C. Hooten & Company as its manager. His possession then was the possession of the corporation which employed him.

In order to transfer the property to his possession as pledgee something more must have been done than .the. executory contract which he claims to have made with. J. C. Hooten. According to his own testimony, Hootéii. told him that he could get his money out of the crop arid the farming tools, and later said that he would turn them over to Belford. There is nothing in this testimony to show that the property was actually turned over to Belford. His continued holding as the manager of a corporation would not constitute possession of the property for himself as pledgee. His testimony as to what occurred in August when he went to see Abston-Wynne & Company with J. C. Hooten is contradicted by both Abston and Wynne. They both testified positively that at no time on that occasion did Belford claim any interest whatever in the crop which Hooten proposed to mortgag-e them to secure advances with which to gather it. Hooten was already largely indebted to them, and, according to the testimony of Belford even, he was hard pressed for money and unable to pay him. It is more reasonable to suppose that. the plaintiffs agreed to advance Hooten money with which to gather the crop and took a mortgage from him to secure themselves, than it is to suppose that they dealt with Belford as the pledgee of the crop.

Their testimony in this respect is corroborated by that of- their representative whom they sent in the fall to take possession of the crop under their mortgage. He testified that Belford told him that Hooten was indebted to him, but made no claim to the mortgaged property as against Abston-Wynne & Compny. Hence we are of the opinion that the chancellor was right in finding the facts- on this point in favor of the plaintiffs and in dismissing the cross-complaint of Belford and Taylor for want of equity.

It is next insisted that the note of Lincoln Johns for $1,200, which wa.s transferred to Harry Belford as collateral security, was secured by a chattel mortgage on the cotton grown on the plantation operated by Hooten & Company in St. Francis County. It does- not appear from the record that this note and mortgage was introduced in evidence. Therefore, any argument based on. the rights of the parties under this mortgage can not be considered by us.

It follows that the decree will be affirmed.


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    O. K. Transfer & Storage Company v. Crabtree.
    Opinion delivered February 26, 1923.
    1. Good will — agreement not to re-engage in business. — A stockholder selling his stock to the corporation may make a valid agreement with it not to engage in the same business again in the same city.
    2. Good will — agreement not to re-engage in business — consideration.- — Where a contract for the sale of stock to the corporation which issued it was made, and the stock and notes therefor were delivered, before anything was said to the seller about agreeing not to re-engage in the same business in the same city, such an agreement subsequently entered into without consideration was invalid and unenforceable by the corporation or its assignee.
    3. Evidence — parol evidence as to separate agreements.' — Parol evidence that -a contract for the sale of stock to the corporation which issued it and an agreement by the seller not to re-engage in the same business in the same city were separate contracts, and that there was no consideration for the latter contract, was admissible in -a suit to enforce the latter contract.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;
    affirmed.
    STATEMENT of Facts.
    O. K. Transfer & Storage Company, an Arkansas corporation, brought a suit in equity against J. W. Crab-tree to enjoin him from conducting a storage and transfer business in the city of Fort Smith, Ark. Subsequently the codefendants of Crabtree were made parties to the suit by an amendment to the complaint.
    In 1912 J. W. Crabtree was engaged in the general transfer business in the city of Fort Smith, Ark., under the name of the Merchants ’ Transfer Company, and consolidated his business with that of the Fort Smith Transfer Company. The Fort Smith Merchants’ Transfer Company was duly organized to take charge of the business of the two concerns. One hundred and ninety sharés of stock in the new corporation were issued to Crabtree in payment for his business. He was elected president of the new company and assumed the management of its affairs. R. G-. Moore was elected first vice-president and Ollie C. Moore was elected second vice-president.
    On the 23rd day of June, 1914, J. W. Crabtree sold Ms stock and good will to the corporation for $9,000. He resigned as president, and R. Gr. Moore was selected to succeed Mm. The minutes of the Fort Smith Merchants’ Transfer Company show that the directors met at 8:30 p. m. on June 23, 1914, in Fort Smith, Ark. J. W. Crabtree resigned as president, and then sold 190 shares of capital stock in said corporation and his good will to the corporation for the sum of $9,000, to be evidenced by notes of $200 each. Crabtree’s stock was Held as collateral by the Fort Smith Bank & Trust Company at the time the sale ws made, and the same was not delivered until the morning of June 24, 1914. On that morning R. Gr. Moore and J. W. Crabtree met at the bank. The stock was delivered to Moore and the notes executed by the corporation for the stock were delivered to the bank. This was in accordance with the terms of the agreement made on the previous evening. On the morning of the 24th day of June, 1914, J. W. Crabtree entered into written agreement with the Fort Smith Merchants’ Transfer Company that he would not at any time thereafter directly or indirectly engage in conducting a transfer business in the city of Fort Smith, Ark.
    This agreement also provided that Crabtree would at all times do everything in his power to promote the good will and prosperity of the business sold.
    According to the testimony of J. W. Crabtree, this written agreement was presented to him after the contract for the sale of his stock in the corporation had been completed. The question of his not again entering into the transfer business in the city of Fort Smith was not mentioned until after said contract for the sale of his stock had been executed. Moore presented the contract to Crabtree at the bank, and, after some insistence, Crab-tree signed the contract, but received no consideration for so doing. The contract was not spoken of until after tlie sale of the stock by Crabtree had been completed. Crabtree’s testimony is corroborated by that of Ollie C. Moore.
    The agreement which Crabtree made with the Fort Smith Merchants’ Transfer Company not to again engage in the transfer business in the city of Fort Smith was assigned by that company to the O. K. Transfer & Storage Company at the time the former corporation sold its property and assets to the latter corporation.
    In September, 1921, J. W. Crabtree again engaged in the transfer business in the city of Fort Smith. After the Fort Smith Merchants’ Transfer Company sold out to the O. K. Transfer & Storage Company, it surrendered its charter and the corporation was dissolved. On this account the plaintiff made all the stockholders in said corporation codefendants with J. W. Crabtree in the present suit.
    The chancellor found the issues in favor of the defendants, and it was decreed that the complaint of th'e plaintiff should be dismissed for want of equity.

      W. L. Curtis and Cravens & Cravens, for appellant.
    The contract is assignable at the common law, and, the assignor being a necessary party, the company having gone out of business, it was proper to make the 'stockholders thereof parties. 97 Ark. 513; 47 Ark. 541; 80.Ark. 167; 120 Ark. 221. We find no decisions of this court on the question whether or not such a contract as is involved here is assignable, but the weight of authority holds that it is assignable. 118 N. W. 166; 16 Am. & Eng. Ann. Cas. 259 and note; 47 Iowa 137; 67 Am.- Dec. 511; 106 N. Y. 487; 13 N. E. 419; 95 N. Y. Supp. 1060; 57 Atl. 1025; 32 Md. 561; 3 Am. Rep. 164; 71 N. W. 654; 26 S. E. 71; 72 N. W. 757; 68 Am. St. Rep. 480 ; 62 So. 514; 66 S. E. 665.

      Warner, Hardin & Warner, for appellees.
    1. There was no consideration for the contract relied upon by the appellant, and it is therefore void and unenforceable. 112 Ark. 126; 76 Ark. 140; 13 C. J. 359;’ 39 N. W. 255. Because Crabtree sold his stock and good will for a consideration, the law will not imply a promise on his .part not to reengage in the same business. 148 Ark. 222.
    2. The contract was strictly personal and not assignable. 64 Ark. 339; 67 Am. St. Rep. 357; 5 Corpus" Juris 882, 883; 128 U. S. 246; 81 Atl. 163.
    3. Assuming that the contract was valid, not intended to be strictly personal, and that it wás, in fact, assigned to the plaintiff, was it, being in partial restraint of trade, assignable? See 67 Am. St. Rep. 357; 18 Am. Rep. 281. While this court, commencing with Webster v. Williams, 62 Ark. 101, upholding the validity of such contracts, if reasonable and founded upon a legal consideration, down to Patterson v. Rogers, 148 Ark. 22, has not passed directly on this question, yet it has throughout hedged these contracts about with limitations and restrictions not applicable to other contracts. And it has held that such contracts are valid only when they afford fair protection to the interests of the party in whose interests they are given and do not interfere with the interests of the public. 95 Ark. 449; 112 Ark. 126. See also 13 Corpus Juris 478.
   Hart, J.,

(after stating the facts). This court has sustained as valid agreements by the vendor of a business, with or without limitations as to time, not to carry on the business within the limits of a certain city. Bloom v. Home Insurance Agency, 91 Ark. 367; Hampton v. Caldwell, 95 Ark. 387; Kimbro v. Wells, 112 Ark. 126; and Kimbro v. Wells, 121 Ark. 45.

Under this rule Crabtree might make a valid agreement with the purchaser of his stock not to engage in the same business again in the same city as the corporation which purchased his stock. Assuming (without deciding the question) that a contract in partial and reasonable restraint of trade, such as a covenant not to engage in a particular business within a designated territory, is assignable, still we do not think that the contract in question is valid under the particular facts and circumstances in this ease as shown by the record.

According to the testimony of Crabtree, which is corroborated by that of Moore, he made and executed the contract for the sale of his stock to the corporation which issued it before he -made or assigned the contract not to engage again in the transfer business in the city of Fort Smith. His sale of the stock was completed on the evening of June 23, 1914. This is shown by the minutes of the board of directors of the corporation held on that evening, and nothing is shown by any agreement on Crabtree’s part not to again engage in the same business.

It is true that the stock was not delivered to the corporation or the notes of the corporation delivered to Crabtree until the next morning. This occurred, however, because the stock of Crabtree had .been deposited in bank as collateral security. The stock was delivered to the corporation by Crabtree, and the notes of the corporation were delivered to Crabtree for the stock before anything was said to Crabtree about making an agreement not to engage again in the business. Crabtree at first declined to sign the agreement, but, upon the representative of the corporation insisting on it, he did sign it, but received no consideration for so doing. His testimony in this respect is corroborated by that of O. C. Moore.

Hence the chancellor was warranted in finding that the contract for the sale of the stock by Crabtree to the corporation and the contract by him with the corporation not to engage again in the transfer business in the city of Fort Smith were separate and distinct contracts, with no consideration for the latter.

It was competent to show by parol evidence that the two instruments were wholly independent and separate agreements, and that there was no consideration between the parties to support the agreement of Crabtree not to again engage in the transfer business in the city of Fort Smith. Kimbro v. Wells, 112 Ark. 126, and Kimbro v. Wells, 121 Ark. 45.

The chancellor found the issues in this respect in favor of the defendant, Crabtree, and it cannot be said that his finding of fact is against the preponderance of the evidence.

It follows that the decree will be affirmed.