author: Smith, J.

text:
    Missouri Pacific Railroad Company v. Johnson.
    Opinion delivered April 10, 1922.
    1. Railroads — not suable for injury during federal control.— A railroad .company was not liable for injury to a passenger while its road was under Federal control.
    2. Railroads — federal control — substitution of parties. — The •substitution of the name of a United States agent appointed under the Transportation Act of February 28, 1920, as defendant in an action for injuries to a passenger on a railroad under Federal control when at the time of such substitution he had been succeeded in office by another, was improper.

      3. Railroads — federal control — substitution of parties — process. —The substitution as defendant of the United States Agent for the Director General of Railroads after trial did not constitute a new action requiring service on the party substituted, where such substitution was made merely to correct an error in the another instruction covering that subject.
    4. Trial — instruction already covered. — Refusal to give an instruction as to the duty of a railway brakeman to protect the appliances of his train was not error where the court gave another instruction covering that subject
    Appeal from Johnson Circuit Court; A. B. Priddy, Judge;
    reversed in part.

      Pryor S Miles, for appellant.
    The court erred in refusing to direct a verdict in favor of the defendants.

      Heartsill Bagon, for appellee.
    Appellant having failed to ask for a ruling on his demurrer is in no attitude to object to the jurisdiction of the court. 134 Ark. 254; 95 Ark. 405; 27 Ark. 235; 90 Ark. 86; 114 Ark. 87.
    There was no error in substituting the agents of the government for "Walker D. Hines, Director General. New service was not necessary. 147 Ark. 604; Payne v. Stockton, 147 Ark. 598.
    The action was properly brought against the railroad and the Director General. 225 S. W. 639; 146 Ark. 170; 146 Ark. 232; 225 S. W". 640; 106 S. E. 755.
    It was not error to refuse to give an instruction which was covered by an instruction already given. 136 Ark. 272; 126 Ark. 310.
   Smith, J.

Plaintiff sued the Missouri Pacific Eailroad Company and "Walker D. Hines, Director General of Eailroads, alleging that on the 14th day of December, 1918, he had received certain injuries while a passenger between Hartman and Clarksville, Arkansas, as a result of an assault made upon him by the brakeman on the train. A separate answer was filed by the railroad company, in which it denied that it was operating passenger trains at the time alleged in the complaint; and an answer was filed by the Director General- denying specifically the allegations of the complaint in regard to the assault.

There was a trial before a jury on May 6, 1921, and at the conclusion of all the testimony each of the defendants asked the court for a directed verdict, -but the ground therefor is not stated in the record. This request was overruled, and the case proceeded to the jury, and a verdict was returned against the defendants jointly in the sum of $250. Judgment was entered on the verdict, and thereafter separate motions for a new trial were filed. Upon the. argument of the motion for a new trial the court entered an order substituting the names of John Barton Payne and James M. Davis, as agents of the government, in place of the name of Walker D. Hines, and overruled both motions for a new trial. There appears to be a judgment against the railroad company, Hines, Payne and Davis, and each of these defendants has appealed.

It is first insisted that judgment was improperly rendered against the railroad company; and this insistence appears to be well taken. Missouri Pac. R. Co. v. Ault, 256 U. S. 554.

It is next insisted that error was committed in substituting the names of the successors in office of Walker D. ITines after the rendition of the judgment, the contention being that a retrial should have been ordered after the substitution of parties, and that the name of Payne should not, in any event, have been substituted, as at the time of the substitution he had himself been succeeded in office by Davis; and this appears to be a fact. It appears, therefore, to have been unnecessary and improper to substitute the name of Payne, as Davis was the substituted agent then acting for the Federal Government under the designation of the President of the United States, as ■ required by the Transportation Act of Congress approved February 28, 1920. But should a retrial have been ordered after the substitution of the name of Davis?

A similar question was presented in the case of Payne v. Stockton, 147 Ark. 598. In that case the name of Payne was substituted for that of Hines, and, while the substitution in that case was made before the trial of the cause, the objection was made in that case, as in this, that no service had been had against the person substituted, which is, of course, the point in the case, for, if service is required, the substitution could not be made either before or after the trial without service being first had. In the case just cited we said: “We do not think, however, that any new service was necessary. The object of the suit was to bring an action against the United States. The United States employed the same attorneys to act for John Barton Payne as had acted for Walker D. Hines as Director General. When these attorneys entered the appearance of Walker D. Hines, as Director General of Bailroads and Special Agent, they entered the appearance of the United States to the suit, and the substitution of John Barton Payne, Agent, instead of Walker D. Hines, Director General of Bailroads, was merely to correct an error in the name of the representative of the United States.”

In the instant ease an answer was filed in the name of Hines as Director General, alleging misconduct on the part of the passenger, which, if established by the testimony, would have defeated a recovery. The cause was tried on the issues there joined. The answer entered the appearance of the alleged agent of the United States, and there' is no contention that any other or different defense could or would have been made had the substitution of names been made before the trial, as was done in the case of Payne v. Stockton, supra, instead of after the trial, as was done in the instant case; and we conclude here, as we did there, that no error was committed in correcting an error in the name of the representative of the United States.”

Error is also assigned in the refusal of the court to give certain instructions. It is the theory of appellant that plaintiff, who is a boy fifteen years old, got on the rear end of the train, with a number of other boys who were not passengers, but that plaintiff acted in unison and in conspiracy with these other boys on the back of the train to turn on the emergency air, and an instruction was asked to the effect that, if this was true, the brakeman would have been justified in using reasonable force in preventing the boys from turning on the air in the emergency brake, but the instruction was not given.

Plaintiff admitted that he went to the rear end of the last coach, but he says he did so for the purpose of watching the boys, who had climbed on to the steps of the rear car, jump off as the train passed a railroad crossing; that he knew nothing about the air whistle on the rear of the train, and had nothing to do with turning it on, and when it was turned on by one of the boys he became frightened and started into the coach to deliver up his ticket, but as he started into the coach the brakeman grabbed him around the throat and choked and otherwise assaulted him.

It is true, of course, that the brakeman had the right, and. was under the duty, of protecting the appliances of the train, and especially those as important as the air-brakes, from officious meddlers; and for the protection of these appliances and the consequent safety of other passengers he had the right to use such force as was reasonably necessary for that purpose. This right and duty was covered, however, by an instruction numbered 3, which was given at appellant’s request, reading as follows : “You are instructed that the law imposes a duty upon a railroad company, as a carrier of passengers, to exercise the highest degree of care in the operation of its passenger trains for the safety -and protection of passenger's thereon, and to use all reasonable means within its power to keep its equipment in a reasonable safe condition and to prevent interference therewith, or annoyance to the passengers, and, \in ¡doing so, and through its agent and employees, may use such reasonable force as may seemingly be necessary under the peculiar facts and circumstances to prevent interference with its trains or jeopardizing the safety of its passengers and employees thereon, and, in doing so, would not be liable in damages therefor.”

The case presents a sharp issue of fact between the plaintiff and two of the other boys who were on the back of the train, on the one hand, and the brakeman, on the other, and, however much we may be disposed to accept as true the version of the brakeman as to what occurred when the air was applied and the train suddenly stopped, the verdict of the jury concludes that question in plaintiff’s favor.

The judgment against the railroad and that against Hines and Payne will be dismissed. The judgment against Davis will be affirmed.


source: Caselaw Access Project

author: Smith; J.

license: Public Domain

text:
    Woodson v. McLaughlin.
    Opinion delivered April 10, 1922.
    1. Trial — testimony op parties when undisputed. — Though statements of a party will not ordinarily make a case of undisputed evidence, they will be so considered where the opposing parties were called to the stand, and did not deny the truth of their testimony.
    2. Malicious prosecution — termination op prosecution. — Where a prosecution was dismissed by compromise or settlement with the prosecuting witness, it is not such a final determination of the matter in the defendant’s favor as will support an action for malicious prosecution.
    . Appeal from Pulaski Circuit Court, Third Division; Archie House, Judge;
    affirmed.

      Oscar H. Winn, for appellants.

      Hendricks & Snodgress, for appellee.
    None of the defendants could have been guilty of false imprisonment under the facts. 34 Ark. 105; 95
      Id. 227. It devolved upon plaintiff to show affirmatively both malice and want of probable cause. 101 Ark. 37.
   Smith; J.

This suit grows out of the differences between the parties which led to the suit of Woodson v. McLaughlin, 150 Ark. 340, and many of the circumstances there involved were again inquired into at the trial from which this appeal comes. This present suit is one to recover damages for an alleged malicious prosecution instituted in furtherance of McLaughlin’s wrongful purpose to eject J. F. Woodson and the members of his family from the house which they were occupying as share-croppers on McLaughlin’s farm.

In support of the allegations of the complaint, testimony was offered tending to show that McLaughlin had used threatening- and abusive language toward J. F. Woodson, and had instigated one Davis to cause a warrant to be issued for the arrest of J. F. Woodson and his brother, E. F. Woodson, who was living with him, charging them with a breach of the peace by using-threatening and abusive language, and that this was done without probable cause therefor.

Davis testified that he had a contract to move the house, and attempted to do so, but was driven away by the Woodson brothers, who abused him and threatened him with personal violence. This the Woodsons denied, and, according to their version of the affair, they were themselves the persons threatened and abused, and they were arrested without probable cause.

The parties defendant were McLaughlin, the owner of the land, Davis, who had the contract to move the house, and Cox, the deputy constable who served the warrant. These defendants filed a joint auswer, in which they denied all the allegations of the complaint.

Without reviewing the testimony, it may be said that a case was made for the jury that the Woodsons had been arrested without probable cause; but the testimony shows that when the case was called before McLaughlin, who, as justice of the peace, had issued the warrant, the parties began to talk compromise and settlement, and the prosecution was finally dismissed by consent after the parties had discussed and compromised their differences.

McLaughlin testified that while the parties were assembled at his store, where he was accustomed to hold his court as a justice of the peace, J. F. Woodson approached him and proposed a settlement of the case, and that he told Woodson the prosecution was under the control of Davis, and that Woodson asked him to speak to Davis about dismissing it; that he did so, and that Davis declined to dismiss the prosecution on the ground that the Woodsons had threatened him, and he was afraid they would commit some act of violence against him-; that he communicated this statement to the Woodsons, and received-assurances from them that they would do Davis no harm, and he reported that fact to Davis, whereupon, in consideration of this promise, Davis asked that the prosecution be dismissed, and that order was entered. McLaughlin testified that J. F. Woodson agreed to pay the costs of-the ease, and that he later did so. This testimony in regard to the compromise and settlement of the prosecution does not appear to have been denied, although both the Woodsons were recalled to the stand after that testimony had been given.

J; F. Woodson did deny that he agreed to pay the costs. After being recalled he testified that nothing was said, when the prosecution was dismissed, about paying the costs, but that some days later, when a bale of cotton, which he had grown, had been sold by McLaughlin, the constable’s costs, amounting to $2.50, (the only costs charged in the case) were deducted by McLaughlin from Woodson’s share of the proceeds of the cotton, and that he (Woodson) protested at the time against the deduction being made. This occurred several days after the prosecution had been dismissed; but there appears to be no denial of McLaughlin’s statement that a compromise of the matter was effectuated as a result of his negotiations between Davis and! the Woodsons, even though there was a misunderstanding about the payment of the costs. Davis substantially corroborates McLaughlin about the compromise and settlement of the case. There was a directed verdict in favor of the defendant, from which is this appeal.

It is true Davis and McLaughlin are parties to this litigation, and their statements would not, therefore, ordinarily make a case of undisputed evidence; but, inasmuch as the Woodsons testified, and were recalled to again testify after McLaughlin and Davis had given their testimony in regard to the terms of the compromise, without denying the truth of this testimony, it will be taken as making a case of undisputed evidence. Gish v. Scantland, 151 Ark. 594.

In the article on Malicious Prosecution in 18 R. C. L., p. 25, it is said: “It is generally held that where the original proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties, or solely by the procurement of the accused as a matter of favor, or as the result of some act, trick, or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of an action for malicious prosecution. ’ ’

. Among the annotated cases cited in the note to the text quoted is that of Baxter v. Gordon Ironsides, etc, Co., 13 Ont. L. Rep. 598, 7 A. & E. Ann. Cas. 452. In the note to this case it is said: “The rule is well settled that, where the proceeding is dismissed or abandoned by procurement of the party prosecuted, by settlement or compromise with the prosecutrix or plaintiff in the action, it is not such a final determination of the matter in his favor as will support an action for malicious prosecution.” Many cases are cited in the notes supporting it.

A case very extensively annotated is that of Graves v. Scott, 51 S. E. 821, 2 L. R. A. (N. S.) 927. Beginning at page 945 of this annotated case many cases are cited in support of note E, reading as follows: “If the prosecution is brought to an end by settlement or compromise, or by the hand of the accused, it is not a sufficient termination upon which to found an action.”

See also Craig v. Ginn, 53 L. R. A. 715; Waters v. Winn, L. R. A. 1915-A 601, and the cases cited in the notes to these cases.

The testimony being undisputed that a compromise was effected as a result of which the prosecution, out of which this litigation arises, was settled, a verdict was properly directed in defendant’s favor. It is- true J. F. Woodson did testify that he did not agree to pay the costs, and we must assume that the jury would have so found in view of the fact that the verdict was directed against him; but this was only a detail of the compromise, and one which did not prevent the consummation of the settlement by the dismissal of the original prosecution.

It is true also that McLaughlin was the justice of the peace who issued the warrant, and that the case was tried upon the theory that he had instigated and prompted Davis in making the affidavit before him upon which the warrant of arrest was based, and, as we have said, there was testimony upon which the jury might have found that this was done without probable cause. If these things were true, then McLaughlin was disqualified to try this case by reason of his interest in the prosecution; but the Woodsons admit that they did not ask the change of venue to which they would have been entitled if their theory of the case is true. But the justice court of that township had jurisdiction of the offense charged in the warrant of arrest, and McLaughlin was a justice of the peace, and, as such, he made the order dismissing the prosecution. So that, whatever may be said about his right to try this case, it was a part of the compromise and settlement that he should make the order which ended the prosecution, and that order was entered and the prosecution was ended, and that prosecution was as effectually and finally disposed of as if there had been no question about his jurisdiction.

No error appearing, the judgment is affirmed.


text:
    Union Marine Insurance Company v. High.
    Opinion delivered April 10, 1922.
    Insurance — breach of promissory warranty to keep fire extinguisher. — Where an automobile insurance policy, in consideration of a reduction in the premium, stipulated that a' fire extinguisher would be kept on the automobile insured, and a fire destroyed the automobile where no extinguisher was oh it, the extinguisher having been exhausted at a fire two weeks previously, there was a breach of a promissory warranty, which avoided the policy, though there was evidence that the loss would have occurred had the extinguisher been on the car.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;
    reversed.

      McMillen é Scott, for appellants.
    The undisputed testimony shows that appellee is not entitled to recover. The court should have directed a verdict for the insurance company. There was not only no substantial compliance, but no compliance at all, on the part of the insured, with the contract. 57 Ark. 279; 58 Id. 277; 83 Id. 126.

      Chas. A. Walls, for appellee.
    A substantial compliance with the contract was all that was required. C. & M. Digest, § 6148; 85 Ark. 33.
    The proof is that, had the fire extinguisher been filled and on the car, it could not have extinguished the fire. 104 Ala. 176.

      Melbourne M. Martin, for cross-appellant, Yale Automobile • Company.
   Smith, J.

This is a suit on a fire insurance policy covering an automobile and containing the following recital: “In consideration of the reduction in premium granted under this policy, it is made a condition thereof that the insured will at all times during the life of this policy carry on the automobile insured, in a readily accessible place, at least one fire extinquisher known as Pyrene, approved by the Underwriters’ Laboratories of (he National Board of Fire Underwriters, and bearing their label; and that the insured will use due diligence to maintain the said fire extinguisher in full and complete working order during the life of this policy.”

The owner of the car equipped it with an extinguisher, which he exhausted in extinguishing a fire in his car on or about December 21st. Later, on the 1st or the 4th of January, the car again caught fire, and on this occasion was destroyed. At that time there was no extinguisher in the car, which failure the owner explained by saying that he had tried to have the extinguisher recharged at his home (Lonoke), but there was no one there to do the work. Someone told him to bring or send the oar to Little Rock and have the extinguisher recharged, but he had no way to bring or send it to Little Rock after his first fire. He also testified that the fire was of such a character that it could not have been extinguished, even if he had had an extinguisher.

An instruction was given which told the jury that if the extinguisher had been provided and exhausted in extinguishing a fire, and that the owner had thereafter 4 4 exhausted every effort to have it refilled and could not by said efforts have said extinguisher ready to use at the time of the fire,” to find for the owner, although there was no extinguisher on the car when the fire occurred.

Another instruction told the jury that if 4 4 the fire which” destroyed the car was beyond control of the party when it was' discovered, and that the fire extinguisher could not have extinguished the flame had it been attached to the car at the time the fire was discovered, and that the fire could not have been put out and the oar saved by the use of the extinguisher, had it been attached to the car,” to find for the plaintiff,.if the jury also found that every effort had been made to have the extinguisher refilled.

There was a verdict and judgment for the plaintiff, and the insurance company has appealed.

It is insisted that there was a substantial compliance with the provision of the policy set out above requiring that a fire extinguisher be carried on the car, and that the instructions set out above properly submitted to the jury the question of substantial compliance. We do not think so. In our opinion no case was made for the jury, and the verdict should have been directed in favor of the insurance company.

It does not appear what' use the owner had made of the car between the date of the first fire and that of the second. He had completed the journey during which the first fire occurred. He had taken the car home, and an interval of from ten days to two weeks intervened after he had exhausted his extinguisher by use in extinguishing a fire before the second fire occurred. His use of the car after the first fire was purely voluntary and in violation of the requirement that it should be equipped with an extinguisher.

In the case of Mechanics’ Insurance Co. v. Thompson, 57 Ark. 279, the policy sued on made the application for insurance a part thereof and a warranty, and the following question and answer appear in the application: “Will you agree as a condition of this insurance to keep in the same room, and within ten feet of the gin-stand, one barrel full of water and two buckets?” Answer: “Yes.” Construing this question and answer, Judge Battle, for the court, there said: “The object of the second agreement or warranty is apparent. The barrel of water and two buckets were evidently required to be kept within ten feet of the gin-stand for the purpose of being promptly used in extinguishing any fire that might originate in or at the gin-stand. The terms of the agreement necessarily imply that the water and buckets should have been at all time readily accessible. Its purpose could not have been subserved in any other manner. The barrel within ten feet of the gin-stand was not readily accessible. It was not known where the buckets were on the night of the fire. The assured therefore failed to perform the second agreement.” For the failure to keep this promissory warranty the judgment against the insurance company was reversed.

At section 316 of the article on Fire Insurance in 26 C. J., p. 248, it is said: “In the absence of a stipulation in the policy the fact that there was not a constant and ever ready water supply and appliances for the ex-tinguishment of fires will not relieve insurer from liability; and a stipulation to maintain such equipment during the life of the policy cannot be implied from the fact that it is described as a part of the property insured. But if it is provided that the premises shall be so equipped, a failure to comply with the provision will avoid the policy. Such provisions, if inserted in the policy or properly referred to therein, are generally regarded as promissory warranties. But a statement as to fire appliances not clearly made a warranty is a representation only, and is governed by the principles relating to representations generally.” See cases cited in note to the text quoted; and see, also, 2 Clement on Fire Ins. p. 62; 3 Joyce on Fire Ins., sec. 1970; 1 May on Fire Ins., sec. 157; Southern Ins. Co. v. White, 58 Ark. 277.

It having been agreed, in consideration of a reduced premium, that a fire extinguisher should be carried on the car, this agreement became a promissory warranty, and it was breached when a voluntary use of the car was made without that equipment.

Nor is it important that the fire might not have been extinguished had the extinguisher been provided. There is no question in this ease of the sufficiency of the extinguisher, as there was no extinguisher of any kind on the car when it burned. The insurance company had contracted for a certain protection, to which it was entitled, whether efficacious under all conditions or not. The failure to furnish this protection was a breach of the warranty and avoided the contract.

The judgment will therefore be reversed, and the cause dismissed.


author: Humphreys, J.

text:
    Knapp v. Gray.
    Opinion delivered April 10, 1922.
    1. Vendor and purchaser — evidence.—In a suit by a vendor on a contract which made the purchaser’s agreement to buy land dependent upon the purchaser's selling other land to a third party, defendant having denied having made such sale, a judgment rendered in favor of the purchaser’s broker for his commission in procuring such sale was competent on the question whether the purchaser had sold such other land.
    2. Evidence — explanation of judgment: — In a vendor’s action against a purchaser for breach of a contract whereby the purchaser’s agreement to buy the land was to depend on his selling other land to a third party where the purchaser denied having sold the other land, upon proof of a judgment against the purchaser in favor of his broker for commission for procuring such sale being introduced, it was competent to prove that the purchaser assented to the judgment, not because the sale had been effected, but to prevent the inconvenience and expense of litigation.
    3. Garnishment — against maker of note. — In a garnishment proceeding against the maker of a note payable to the defendant, the court erred in rendering a personal judgment against the maker without impounding the note or requiring proof that it was non-negotiable.
    4. Garnishment — conclusiveness of garnishee’s answer. — The answer of a garnishee, not traversed, must be presumed to be true.
    Appeal from Franklin Chancery Court, Ozark District; J. V. Bourland, Chancellor;
    reversed in part.

      Partain & Garter, for appellants.
    The attachment should not have been sustained. C. & M. Digest, sec. 570.
    Judgment should not have been rendered against the garnishee. 96 Ark. 568; 53 Ark. 523. The court should have permitted proof of interpleader’s ownership of the attached property. 47 Ark. Ill; 114 S. W. 621; 154 S. W. 81; 63 Ark. 289; 120 S. W. 920; 119 S. W. 899; 114 S. W. 172; 153 S. W. 304; 71 Am. St. Bep. 50; 119 Am. St. Bep. 581.

      A judgment or decree is conclusive only between parties to an action or their privies. 64 Ark. 330; 64 Ark. 447; 87 Ark. 418; 150 S. W. 397; 35 Ark. 450.

      WiUarcl Pendergrass and Evans $ Evans, for appellee.
   Humphreys, J.

The issues in this case as finally made up by the pleadings presented the questions: First, whether appellees, W. H. Gray and Laura Gray, were entitled to a personal judgment against appellant I. J. Knapp in the sum of $8,967.66, and a decree declaring a lien and for a foreclosure of same against about 280 acres of land.in section 35, township 10 north, range 26 west, in the Ozark district of Franklin County, Arkansas ; second, whether judgment should have been rendered against L. S. Swepston on a writ of garnishment issued in the foreclosure proceeding; third, whether the attachment issued in the foreclosure proceeding, directed to the sheriff of Crittenden County and levied upon the east half of the northeast quarter of section 28, township 7 north, range 7 east, should be sustained; and fourth, whether Isa D. Knapp should recover the lands in Crittenden County on her interplea.

The cause was submitted to the chancery court upon the pleadings and evidence, which resulted in the rendition of a personal judgment in favor of appellees W. H. and Laura Gray against I. J. Knapp for the amount claimed and a decree declaring a lien upon and a foreclosure and order of sale against the lands in Franklin County. Also the rendition of a personal judgment against L. S. Swepston upon the writ of garnishment in the sum of $1,200, and a decree sustaining the attachment on the Crittenden County land for the payment of any deficiency judgment that might exist after the sale of the Franklin County lands.

The record reflects that on the.9th day of February, 1920, appellee W. H. Gray, acting for himself and his wife, Laura Gray, entered into a written contract with appellant, I. J. Knapp, conditionally selling the Franklin County land to the said Knapp. The condition incorporated in the written contract was that it should become binding and effective on the said Knapp if he could complete an executory sale of his Crittenden County lands to L. S. Swepston. The sale of the Crittenden County lands to Swepston depended upon whether the title thereto could be perfected and whether1 payment of certain mortgages existing upon the lands could be arranged. Thereupon W. IT. Gray and I. J. Knapp proceeded to Crittenden County, where they arranged with the Crittenden County Bank & Trust Company to remit to W. H. Gray the major portion of $5,400 when L. S. Swepston should make the first payment on the Crittenden County lands. Thereafter I. J. Knapp took possession of the Franklin County lands and managed and controlled them. Subsequently I. J. Kjnapp paid W. H. Gray $350 upon the purchase price of the Franklin County lands. The receipt recites that it was a payment on the contract. Knapp explained that it was paid to enable Gray to purchase another place, and without intention to waive the condition in the written contract. Later on I. J. Knapp and L. S. Swepston canceled their executory contract for the1 sale and purchase of the Crittenden County lands, and entered into a lease contract with an option on the part of L. S. Swepston to purchase it for the same consideration at a fixed future time. This option on the part of Swepston was never exercised. The rental contract provided that Swepston should pay $200 to an' attorne}^ and $1,200 to I. J. and Isa D. Knapp. The $1,200 note was executed to them jointly. The title to the Crittenden County lands was in the name of I. J. and Isa D. Knapp, his wife, appearing as an estate in entirety on the face of the deed. Isa D. Knapp interpleaded for the land on the ground that it was her individual property, and in the course of the trial offered to prove that the lands were purchased with her individual money, and that the name of I. J. Knapp was inserted through mistake and not for the purpose of creating an estate by the entirety. This evidence was excluded by the court, over the objection and exception of appellant Isa D. Knapp.

L. S. Swepston filed an answer to the writ of garnishment, in which he admitted executing a note for $1,200, due and payable on the first day of January, 1921, for the rent of the lands in Crittenden County, payable to I. J. Knapp and his wife, Isa D. Knapp, and stating that he did not know whether the said I. J. Knapp and Isa D. Knapp were the legal holders of said note, and therefore prayed that the court require the surrender of the note before rendering judgment on the writ of garnishment, which answer was sworn to and filed on the 8th day of Juty, 1920. Judgment was rendered against Swepston for the amount of the note, over his objection and exception, without proof that the note was non-negotiable or requiring the production of same.

The alleged grounds for the issuance of the attachment were that “said defendant Knapp has sold, conveyed or otherwise disposed of his property, or suffered or permitted it to be sold with the fraudulent intent to cheat, hinder or delay his creditors; and that said defendant Knapp is about to sell, convey or otherwise dispose of his property with such intent. ’ ’ The grounds for the attachment were controverted under oath. No proof was introduced tending to show that. I. J. Knapp had sold or was about to sell and dispose of his property with the fraudulent intent to cheat, hinder and delay his creditors in the collection of their debts.

In the course of the trial appellee was permitted to introduce in evidence, over the objection and exception of appellant I. J. Knanp, the pleadings and judgment for $300 in the case of F. K. Lashbrook v. I. J. Knapp and Isa D. Knapp. This was a compromise judgment for commissions for selling the Crittenden County property for the Knapps to L. S. Swepston. I. J. Knapp offered to explain that he consented to the judgment, not because the sale had been effected through the instrumentality of Lashbrook, but simply to prevent the inconvenience and expense of further litigation. The court excluded this explanation, over the objection and exception of appellants. The evidence was in sharp conflict and quite close as to whether I. J. Knapp waived the condition in the written contract for the sale and purchase of the Franklin County lands. There is some direct evidence and many circumstances tending to show that he agreed to take the Franklin County lands, whether he completed the sale of his Crittenden County lands to Swepston or not. The chancellor made two distinct findings in his decree, one to the effect that Knapp agreed to take the Franklin County lands whether he sold- the Crittenden County lands or not, and another to the effect that there was no failure on the part of Knapp to close the sale of the Crittenden County land. The latter finding seems to have been based largely upon the judgment and decree in favor of Lashbrook against the Knapps for the commission, indicating, that the judgment conclusively established the fact that there was a -completed sale. It was competent to introduce the Lashbrook judgment as a circumstance tending to show that there was a completed sale of the Ci’ittenden County land, but it was clearly error to exclude the explanation offered concerning that judgment. The Lashbrook judgment, in connection with the explanation erroneously excluded by the court, did not conclusively establish a completed sale, nor do we think it and the other evidence in the case, which we have carefully examined, was sufficient to sustain the finding of the chancellor to the effect that the sale of the Crittenden Couiffy land to Swepston was effected or concluded. While we are convinced that the trial court erred in finding that there was no failure on the part of I. J. Knapp to close the sale of the Crittenden County land, we are not convinced that the court was in error in finding that Knapp agreed to take the Franklin County lands irrespective of whether the sale to Knapp was consummated. We do not think the finding in this regard was (dearly contrary to the weight of the evidence. It was therefore proper for the trial court, under that finding,' to render a personal judgment against I. J. Knapp for the contract price of the Franklin County lands, and to decree a foreclosure and sale thereof to pay the purchase price.

The next question to be determined on the appeal is whether the court erred in sustaining the attachment against the Crittenden County land. The grounds of the attachment were controverted, and we are unable to discover any evidence in the record tending to show that 1. J. Knapp had sold or was about to sell any of his property with the fraudulent intent to cheat, hinder and delay his creditors. In fact, W. H. Gray is in the position of insisting upon a sale of the Crittenden County land to Swepston in order to obtain a part of the purchase price therefor as a payment on the purchase price of the Franklin County lands, and therefore is in no position to say, because he rescinded that sale and gave fin option upon the Crittenden County land to Swepston, (hat Knapp was disposing of his property for the purpose of defeating his creditors. In rescinding the sale the property contracted to Swepston was regained. It is not shown that the option given to Swepston to purchase in the future put or tended to put the property or the proceeds of the sale beyond the reach of creditors. We think there is an entire absence of evidence in the record upon which to sustain the writ of attachment against the Crittenden County land.

The next question presented on this appeal is whether the court erred in rendering a personal judgment against L. S. Swepston, the garnishee herein, to apply on any deficiency judgment not satisfied by the sale of the Franklin County lands. The answer of Swepston admitted the execution of a $1,200 note to I. J. Knapp and Isa D. Knapp jointly for rents upon the Crittenden County land, but alleged that the note was not due, and that he did not know who the legal holder of the note was, and asked that the court require a surrender or impounding of the note before rendering judgment against him. As stated before, a judgment was rendered against Mm without requiring proof that the note was non-negotiable or impounding it. This court said, in the case of Head v. Cole, 53 Ark. 523, that “-where it appears that the garnishee is a debtor on commercial paper given to or held by the defendant, the court should decline to render any judgment against the garnishee unless it first compels the delivery of the paper into court, or until the paper matures and it is made to appear that the defendant still holds it. That is to say, the court should protect the garnishee against the danger of paying a debt twice, without destroying the essential properties of commercial paper, which we are confident the Legislature never intended to impair by the enactment in reference to garnishments. These views are sustained by a current of authority, uniform so far as we are advised. Tied. on Com. Paper, § 251, p. 415; Dan. Neg. Inst. § 800a.” We think it inferable from the following allegation in the answer of Swepston that the note was negotiable, to-wit: “And he further states that he does not know whether the said I. J. Knapp and Isa D. Knapp are the legal holders of said note.” This allegation in the answer of Swepston was not traversed and must be presumed to be true. Beasley v. Haney, 96 Ark. 568. Under the rules announced in Head v. Cole, supra, and Beasley v. Haney, supra, it was error to render a personal judgment against L. S. Swepston.

Having ruled that the chancery court should have dissolved the attachment, the court was necessarily without jurisdiction to determine the interest of the interpleader in the Crittenden County land. The only jurisdiction acquired by the Franklin Chancery Court over the Crittenden County land grew out of the issuance and levy of the writ of attachment on said land. The court was therefore without jurisdiction to determine that I. J. Knapp and Isa D. Knapp owned the Crittenden County land in entirety, and the decree to that effect cannot preclude the interpleader from litigating her rights in the property in any court acquiring and exercising jurisdiction over the property. In this view it is not material and it is unnecessary to determine whether the court erred in excluding the evidence offered by her to the effect that the property was purchased with her individual money, and her husband’s name inserted in the deed through mistake.

The decree rendering a personal judgment against I. J. Knapp for the purchase money of the Franklin County lands and for a foreclosure and sale of same is affirmed, but, on account of the errors mentioned, is reversed in all other particulars, and remanded, with directions to dissolve the attachment and discharge the garnishee.


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    Glover v. Glover.
    Opinion delivered April 10, 1922.
    1. Trusts — parol trust. — Where a husband conveyed lands to his wife by deeds absolute on their face, a subsequent decree of divorce awarding the same lands to her in lieu of dower in the rest of her husband’s property in pursuance of her parol promise to reconvey to her husband, was erroneous as an attempt to graft a parol express trust upon the several deeds.
    2. Trusts — constructive trust — parol evidence. — Equity will not impress a constructive trust on property conveyed by a husband to his wife in the absence of allegation or proof that she obtained the deeds through fraud or duress or under circumstances rendering it inequitable for her to hold the legal title.
    3. Divorce — division op property.— A decree of divorce awarding to the wife, in lieu of dower, real estate conveyed to her by defendant, not through wrongdoing on her part or in contemplation of a separation, but as a gift in consideration of love and affection, held erroneous as depriving her of dower on account of gifts theretofore made, to which Crawford & Moses’ Dig., § 3511, relative to a division of property on granting a divorce, is inapplicable.
    Appealed from Pulaski Chancery Court; J. E. Martmecm, Chancellor;
    reversed.

      Geo. A. McConnell and Leivis Rhoton, for appellant.

      Price Shofner and Mehaffy, Donham <3 Mehaffy, for appellee.
   Humphreys, J.

On the 13th day of September, 1920, appellant instituted suit against her husband, appellee, in the Pulaski Chancery Court to dissolve the bonds of matrimony existing between them upon statutory grounds and for a part of his property, both real and personal, in lieu of her dower interest therein. Appellee filed an answer denying the alleged causes for divorcement, and a cross-bill seeking cancellation of deeds executed to him in the years 1910 and 1916 conveying certain real estate to appellant, alleging that it was conveyed to herein trust, and for an accounting of the proceeds of other lands likewise conveyed to her in the year 1916, but sold by her to innocent purchasers. Appellant filed an an.swer to the cross-bill, admitting that deeds were executed by appellee in the years 1910 and 1916, conveying certain real estate to her, but denying that it was conveyed to her in trust. The cause was submitted to the court upon • the pleadings and evidence, which resulted in-a decree granting appellant a divorce and vesting in her, in lieu of dower in appellee’s property, the furniture and jewelry left in her possession when the abandonment occurred, and the real estate, and proceeds of that part sold by her, which appellee had conveyed to her in the years 1910 and 1916. An appeal has been prosecuted to this court from that part of the decree refusing to endow appellant of an interest in the personal and real property held by appellee in his own name at the time the suit was instituted. As no appeal has been taken from the decree annulling the marriage contract, it is unnecessary to incorporate in this opinion the marital infelicities inducing the separation.

Appellant and appellee lived together for more than twenty years, during which time a large estate was accumulated through their joint efforts. In addition to performing her household duties, appellant assisted appellee in the conduct of his business. In the year 1910 appellee conveyed to appellant by warranty deed their home place, the same being lot 6, block 46, in the city of Little Rock. In October, 1915, appellee brought a suit against appellant for divorce, 'but it was dismissed in November, a reconciliation having been effected. In June and August, 1916, while appellant and appellee were living together, lot 5, block 46, city of Little Eock, lots 11 and 12, block 5, Eatterree’s Addition, lot 10, block 20, Kimball’s South Park Addition, and lot 4, block 12, DuVall’s Addition, all being additions to Little Eock, were conveyed by appellee to appellant by warranty deeds. All the deeds were absolute upon their fa&a, containing no provision of trust. Subsequently appellant sold the property in Kimball’s South Park Addition and DuVall’s Addition for a little less than $10,000 net to her. Appellee testified that he made each of the conveyances to his wife for the purpose of protecting himself against his creditors should he fail in business, and that on each occasion she promised to convey the property back to him when he wanted it or should request her to do so. Other witnesses corroborated his testimony in this regard. Their evidence was contradicted by appellant, who testified that the home place was conveyed to her as a birthday present, and the property conveyed to her in 1916 was conveyed in fulfillment of a peace offering made when her husband obtained a reconciliation and dismissal of the divorce suit instituted 'in the fall 'of 1915. The decree of the court awarded appellant certain furniture retained by her at the time of the separation and the real estate conveyed to her in the years 1910 and 1916, and the proceeds therefrom, in lieu of her dower interest in the rest of her husband’s property. The effect of this decree was to graft an express trust upon the several deeds by parol evidence. This was error. Harbour v. Harbour, 103 Ark. 273; Carpenter v. Gibson, 104 Ark. 32.

There was no allegation or proof tending to show that appellant, through fraud or duress, or' under circumstances which rendered it inequitable for her • to hold the les’al title and enjoy the beneficial interest therein, obtained the deeds. So equity should not impress a constructive trust upon the property in favor of appellee. There is not a hint in the pleadings or evidence that appellant procured the deeds through wrongdoing on her part or that the conveyances were made to her in contemplation of a separation. On the contrary, the record reflects that the conveyances were made in contemplation of a continued happy and harmonious marital relationship. Under the allegations and the evidence the conveyances should have been treated as gifts. Section 3511 of Crawford & Moses’ Digest, making provision for a division of property where a divorce has been awarded, does not apply to gifts made by the husband to the wife for love and affection. The decree deprived appellant of her dower interest in the property, both real and personal, on account of gifts theretofore made to her by him, and for that reason was erroneous. The decree of the court should not have taken into consideration these gifts in assigning property in lieu of appellant’s dower interest in the estate of her husband. The decree is therefore reversed and the cause remanded, with directions to award appellant property in lieu of dower in the estate owned by appellee, not including the property conveyed prior to the separation by appellee to her.


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    Ft. Smith Spelter Company v. Clear Creek Oil & Gas Company.
    Opinion delivered April 10, 1922.
    1. Appeal and error — necessity op bill op exceptions. — Where the Supreme Court, on remanding a cause, directed the trial court to make a finding as to the reasonableness of a rate fixed by the Corporation Commission, and the trial court refused to make such finding, and found of record that it was bound by directions of the Supreme Court to conform to the rates fixed by the Corporation Commission, the error appears on the face of the record, and need not be brought up by bill of exceptions.
    2. Appeal and error — necessity op motion por new trial.— Where, in a proceeding to fix gas rates, the trial court’s judgment recites an erroneous finding that it was bound to conform the rates to those fixed by the Corporation Commission, the Supreme Court was not required to affirm the judgment for want of a motion for new trial, since, there having been no trial, no motion for new trial was necessary.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;
    reversed.

      Daily é Woods and Mehaffy, Donham <& Mehaffy, for appellant.
    Appellants were entitled to a finding by the circuit court on the reasonableness of the rates fixed by the Corporation Commission, on the evidence adduced before that commission. This court so declared on former appeal, and that is the law of the ease. 148 Ark. 260. This court did not on that appeal fix the rates, neither had it authority so to do, as its jurisdiction is appellate only. Const., art. 7, § 4; 39 Ark. 82; 94 Id. 119; C. & M. Dig., § 2129.

      Mill S Fitshugh, for appellee.
    1. The declaration of law objected to was not brought into the record by bill of exceptions, and there is, therefore, nothing to review. 36 Ark. 491; 59 Id. 178; 60 Id. 260.
    The procedure prescribed by § 28, act 571 Acts 1919, p. 433, relates only to the judicial review of the record made before the Corporation Commission. Questions of practice arising, not out of the record made before that body, but occurring in the circuit court, must conform to the methods prescribed by law for the review of such questions. A motion for new trial was therefore necessary. 148 Ark. 156; Crawford’s (Ark.) Digest, Appeals and Error, 179, § 116 (D), Id. 181, § 181. See also, 107 Ark. 462, 468; 96 Id. 434.
    2. The court said on former appeal, 148 Ark. 260, 268, that “the testimony adduced by appellant tends to establish the facts that the rate specified in these contracts with the parties mentioned is not remunerative, and the evidence is sufficient to support the finding of the commission fixing the rate at approximately nine cents per thousand cubic .feet for use by the manufacturing plants.” That decision is conclusive and was binding on the trial court. 137 Ark. 341; 131 Id. 509; 129 Id. 43; 129 Id. 116; 132 Id. 617; 134 Id. 605; 138 Id. 267; 131 Id. 509; 136 Id. 156; 122 Id. 491.
   Humphreys, J.

This case is before us a second time. On the first appeal the judgment of the trial court, dismissing the petition of the Clear Creek Oil & Gras Company, was reversed and remanded with directions to try the case upon the evidence adduced before the Arkansas Corporation Commission, and to determine therefrom whether the rates fixed 'by said Commission for the sale of natural gas were reasonable. In remanding the cause this court used the following language, pertaining to the directions given to the trial court, to-wit: “The parties are entitled to a finding by the trial court on the issue as to the reasonableness of the rates fixed by the Commission, that is to say, a finding based on the evidence adduced before the Commission. The judgment is therefore reversed, and the cause remanded for further proceedings.” The case on former appeal is reported in 148 Ark. at page 260, under the style of Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Co., and reference is made to the reported case for a full statement of the facts and issues involved therein.

Upon the remand of the cause the trial court was requested by appellants herein to ascertain whether the rates for the sale of gas fixed by the Corporation Commission were reasonable under the evidence presented to the Commission. The trial court refused the request. .The request and refusal were in the form of declarations of law. Appellant’s requested declaration of law, which was refused by the court, was as follows:

“That, under the opinion of the Supreme Court on a former appeal, which was rendered April 18, 1921, and rehearing denied May 30, 1921, that this court has the right to make a finding and fix a rate at what this court thinks the evidence before the Corporation Commission justifies, and that this court is not required by the former decision of the Supreme • Court in this case to find the rate as fixed by the Corporation Commission.”

The court declared as a matter of law that he was bound to find the rates fixed by the Corporation Commission from the following statement appearing in the opinion of the court: ‘ The evidence is sufficient to support the finding of the Commission fixing the rate at approximately 9 cents per thousand cubic feet for use by the manufacturing plants.” The court thereupon approved and confirmed the rates fixed by the Corporation Commission, as follows: 15 cents per M cubic feet for the first 300,000 cubic feet; 13 cents per M cubic feet for the next 300,000 cubic feet; 10 cents per M cubic feet for the next 2,400,000 cubic feet; and 9 cents per M cubic feet for all gas used over 3,000,000 cubic feet, to be computed monthly. From the judgment thus approving and confirming the rates of the Corporation Commission an appeal has been duly prosecuted to this court.

Appellants insist upon a reversal of the judgment because it was rendered without a trial upon the record presented to the Corporation Commission. Appellee’s insistence is that the appellants cannot be heard to complain because the declaration of law requested by appellants and refused by the court, as well as the declaration of law given by the court, were not brought into the record by a bill of exceptions. Also because a motion for new trial was not filed. A number of cases are cited by learned counsel for appellee holding that facts proved or admitted on the trial and declarations of law made 'by the court upon them must be brought into the record by a bill of exceptions. Hall v. Bonville, 36 Ark. 491; Bradley v. Harkey, 59 Ark. 178; Dunnington v. Frick Company, 60 Ark. 250. These cases have application where there has been a trial, but none where a trial had been Jrefused or denied, as in the instant case. Declarations of law erroneously refused and given in the absence of a trial are necessarily in the same category as demurrers erroneously sustained or overruled by the .court. Such |errors appear on the face of the record, and consequently do not have to be brought into the record by a bill of exceptions. Following the same line of reasoiling, a motion for new trial was unnecessary, as the court refused to try the case in accordance with the mandate. Until there had been a trial, a motion for a new trial could have no place. As it was unnecessary to file a motion for a new trial or to bring the declarations of law refused and 'given by the court into the record by a bill of exceptions in the instant case, in order to prosecute an appeal to this court, no useful purpose would be served by construing section 28 of act 571 of the Acts of the General Assembly of 1919, providing a remedy by appeal to the Supreme Court of Arkansas from the judgment of the circuit court.

The error of the trial court in denying appellants a trial upon the merits grew out of a misinterpretation of the following language used by the court in the opinion handed down on the former appeal of the case, to-wit: “The testimony adduced by appellant tends to establish the fact that the rates specified in these contracts with the parties mentioned is not remunerative, and the evidence is sufficient to support the finding of the Commission fixing the rate at approximately nine cents per thousand cubic feet for use by the manufacturing plants.” In. using the language quoted the .court had reference to the legal sufficiency of the evidence to support the finding of the Commission, and had no reference whatever to the weight of the evidence. The cause was remanded for the court to determine the reasonableness of the rates fixed by the Commission upon the weight of the evidence. The law of the case, as declared by this court on the former appeal, is that both parties, appellants and appellee, are entitled to a trial by the circuit court on the issue as to the reasonableness of the rates fixed by the Commission upon the' evidence presented to the Commission. This can only be done by hearing the evidence and determining from' the weight thereof whether the rates fixed by the Commission are reasonable. In other words, this court ruled on the former appeal that the rates fixed by the Commission did not bind the circuit court.

For the error indicated, the judgment is reversed and the cause remanded, with directions to the circuit court to determine from the weight of the evidence presented to the Corporation Commission whether the rates fixed by the Commission are reasonable.


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    Ross Drainage District v. Clark County.
    Opinion delivered April 10, 1922.
    Counties — claim for bridge constructed without authority.-— Under Const, art. 19, § 16, and Crawford & Moses’ Dig., §§ 827-9, when bridges of the second class are built at the county expense, plans must be adopted and contracts for same let at public outcry; and where a county judge in vacation entered into 'a contract with a drainage district to reimburse it for a bridge to be built, and the contract was never ratified by the county court, a claim for constructing the bridge was properly disallowed.
    Appeal from Clark Circuit Court; George R. Ilaynie, Judge;
    affirmed.

      Callaway £ Callaiuny, for appellant.

      J. II. £ D. II. Crawford and Luke F. Monroe, for appellee.
    The contract entered into between the county judge, in vacation, and the appellant was not binding upon Clark County. Const. 1874, art. 7, sec. 28, C. & M. Digest, § 2279; 36 Ark. 641; 55 Ark. 437; 127 Ark. 470; 117 Ark. 334.
   Humphreys, J.

Appellant, Ross Drainage District of Clark County, presented a claim against the appellee, Clark County, to the county court of said county in the sum of $4,300.35 for the construction of bridges built across certain public highways in constructing the drainage ditches in said district. The county court refused to allow the claim, from which an appeal was prosecuted to the Clark Circuit Court. In the circuit court the issues were tried by the court sitting as a jury, which resulted in a judgment disallowing the claim, from which an appeal has been duly prosecuted to this court.

Special act No. 92 of the General Assembly of Arkansas, 1917, creating the drainage district in question, contained no provision requiring the drainage district to build bridges over ditches dug by it across public highways in the construction of its drainage system. A test case as to whether the district or the county should build bridges over the ditches where they crossed public highways resulted in a ruling by this court, on appeal, that said drainage district could not be required to build bridges over the ditches cut across the public highways, in the absence of a provision in the act requiring it to do so. Board of Directors of Ross Drainage Dist. v. State, 147 Ark. 91. During the pendency of the test case the president of the board of directors of said district entered into the following written contract with the county judge of said county, in vacation, and the prosecuting attorney of' the Eighth Judicial District of Arkansas, which included Clark County, to-wit (omitting formal parts): “This agreement, executed on this, the day and date hereinafter mentioned, by and between Clark County, Arkansas, as represented by J. T. Green and Luke Monroe, respectively county judge of said county and prosecuting attorney of the Eighth Judicial District of Arkansas, and hereinafter referrred to as the county, party of the first part, and Ross Drainage District, of said county, acting by and through W. E. Miller, president of the board of directors, and hereinafter referred to as the district, party of the second part, witnesseth:

“Whereas, the improvement under way by said district crosses certain county roads of said county, and act 92 of the General Assembly of 1917, under which said district is operating, does not specify whether or not the district shall bridge the ditch where same crossed such public roads. And whereas, as the district has already built- one such bridge and the county one, and a third bridge must soon be constructed; and whereas, in view of the further fact that the county will at once institute legal proceedings to determine whether or not the district should construct such bridges; it is therefore agreed between the parties hereto as follows, to-wit:

“The district will proceed to construct the bridge, the necessity for which is now imminent, and, in the event the courts finally hold that it is not the duty of the district to do such bridging, the county agrees that it will reimburse the district for the said bridge heretofore built by it and for such other bridging, bridge or bridges which the district shall hereafter build or contract. Provided, if the courts hold that it is the duty of the district to do such bridging, or build such bridges, the district agrees to reimburse the county for the bridge heretofore constructed by the county as hereinbefore mentioned. It being the intention of this agreement that such obligation or obligations be discharged by the county or district as may be decided by the courts.”

The drainage district proceeded, under the contract, to construct bridges over the drainage canals aforesaid at a total cost of $4,300.35. The bridges constructed were between 30 and 60 feet in length, and, under' the statute law of this State, are denominated bridges of the second class. The statute law provides that when bridges of the second class are ordered built at the expense of the county, plans and specifications therefor must be adopted and posted in accordance with the requirements of the statute, and contracts for building same must be let at public outcry at the courthouse door to the lowest and best responsible bidder. Const. of Ark., art. 19, § 16; Crawford & Moses’ Dig., §§ 827-829. The contract upon which the claim presented was based was made by the county judge in vacation, and was never ratified by the county court. The bridges were not constructed in accordance with the requirements of the statute. The bridges having been constructed without authority, the claim was properly disallowed; otherwise any one might, without authority, construct a bridge on a public highway, whether needed or not, and compel the county to pay for it. The record does not reflect that the county court ever accepted the bridges, or that the county took charge of them and.permitted the public to use them as public bridges. So we are not called upon to determine in this case whether the county would have become liable had it accepted and permitted the public to use the bridges. The only question presented for determination on this appeal is whether a claim presented for the construction of bridges based upon an unauthorized contract can be collected from the county. This question was settled in the negative in the case of Howard County v. Lambright, 72 Ark. 330.

No error appearing; the judgment of the circuit court is affirmed.


author: McCulloch, C. J.

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    Motor Wheel Corporation v. Childs.
    Opinion delivered April 17, 1922.
    1. Sales — rescission op contract. — Where a buyer, on the seller’s refusal to permit his inspector to examine articles sold, telegraphed to seller: “Cancel order and forget it. Our man knows our requirements,” and seller replied: “No stock being loaded. Trouble no inspector. If this man fair sample of your inspectors, the order is already canceled,” there was a mutual rescission of the contract.
    2. Contracts — oral agreement in substitution for written contract. — An oral agreement to carry out a previously canceled written agreement according to its terms must be tested as an oral contract, as it depends for its existence upon an oral agreement.
    3. Contracts — rescission—consideration.—A contract containing mutual obligations may be rescinded by mutual consent, such reciprocal obligations being the consideration for the rescission as well as for the original undertaking. .
    4. Evidence — parol evidence in explanation op writing. — A confirmatory letter written by one of the parties after they had entered' into an oral agreement of sale, which letter did not completely state the terms of the contract, was merely evidentiary in part of what the, contract was, and therefore is subject to explanation by either party..
    Appeal from Calhoun Circuit Court; C. W. Smith, Judge;
    reversed.

      E. L. Westbroolce, for appellant.
    The contract was rescinded by mutual consent by the passage of the various telegrams. 93 Ark. 447; 98 Ark. 219.
    If one party furnishes a legal ground for rescission, his assent to a rescission declared by the other is unnecessary. 13 C. J. 601, § 624; 128 Ark. 535.
    The parties made a new oral contract, which abrogated the written contract (92 Ark. 254; 146 Ark. 385; 136 Ark. 507; 5 Ark. 651) and thereafter the contract was on a “car to car” basis. There was no breach of this contract.
    Had appellee interpreted the matter as a breach of the original contract and expected to insist, upon the performance of that contract or demand damages for the breach thereof, he should have at cnee so notified the appellant. 83 Ark. 533; 55 Atl. 599; 6 R. C. L. p. 1025; 3 Elliott on Contracts, § 2032. His failure to do so amounted to waiver. Bishop on Contracts, § 792; 83 Fed. 684; 103 N. W. 112; 92 S. W. 88; 81 N. E. 574; 148 Fed. 145; 48 So. 213; 84 Pac. 232.
    The verdict should have been set aside by the court. 126 Ark. 427; 47 Ark. 562; 98 Ark. 304; 94 Ark. 566; 100 Ark. 59i8; 98 Ark. 334; 129 Ark. 448; 133 Ark. 166; 132 Ark. 451; 125 Ark. 488.

      Wallace Toimsend, for appellee.
    Appellee did not acquiesce in appellant’s breach of the contract. Appellant was therefore liable in damages for the loss occasioned appellee. 93 Ark. 447.
    The jury settled the conflict in the evidence. 108 Ark. 574.
    The case was properly one for the jury. 71 Ark. 445; 105 Ark. 136. There being substantial evidence to sustain the verdict, the court was correct in not setting it aside. 15 Ark. 403; 15 Ark. 542.
   McCulloch, C. J.

Appellee was the plaintiff below and sued appellant to recover damages in the sum of $23,532 for alleged breach of a contract between the parties for the manufacture, sale and purchase of wood material for use in making -automobile wheels. There wias a trial of the cause before a jury, which resulted in a verdict in favor of appellee for the recovery of damages in the sum of $6,000, and an appeal has been duly prosecuted.

Appellant is a. foreign corporation, organized under the laws of Michigan, but is doing business in the city of Memphis, Tennessee, and the transactions which form the basis of this litigation were conducted by appellant through its Memphis office.

Appellee was engaged in the manufacture of wood materials at Banks, Arkansas, and the contract involved hérein was for the manufacture by appellee of automobile rim-strips and spoke-billets at his plant at'Banks and the sale thereof to appellant at specified prices.

On July 31, 1920, the parties entered into a written contract whereby appellee agreed to manufacture and sell to appellant, at stipulated prices, twenty-five carloads of rim-strips and spoke-billets. Appellant agreed in the contract to purchase and accept said material subject to its own inspection at Banks when ready to load on railroad oars for shipment. The contract provided that shipment should start during the week beginning August 2, 1920, and be completed by November 1, 1920.

It is shown by the testimony that the first car for shipment under the contract was gotten ready immediately prior to August 18, 1920, and appellant sent its inspector, named Bastían, to Banks for the purpose of inspecting the stock as loaded on cars, as per contract, and on the day just mentioned a controversy arose between appellee and the inspector concerning the accuracy and correctness of the latter’s inspection. This controversy resulted in a suspension of the loading of the car, and Bastían telegraphed appellant at its office in Memphis to the effect that the inspection had been stopped, and that the car was being loaded without inspection. Appellant thereupon sent to appellee a telegraphic message worded as follows:

“Bastían advises stock being loaded without inspection. Order reads our inspection. Wire trouble quick.”

Appellee replied by wire on the same day as follows:

“If you want my stock, send inspector. This man cannot inspect my stock.” .

Still later on. the same day appellant sent the following message to appellee:

“Cancel order and forget it. Our man knows our requirements..” ■

Immediately on receipt of that message appellee sent the-following by wire to appellant:

“No stock being loaded. Trouble no inspector. If this man fair sample of your inspectors, the order is already canceled.”

• This was the-last communication between the parties at that time, but on the next day appellee appeared at appellant’s place of business in Memphis, and they there entered into further negotiations concerning the transactions between them.

It is undisputed that there was an agreement entered into between the parties at the meeting in Memphis to the effect that .appellee should proceed to manufacture rim-strips and spoke-billets and ship the same in carload lots to appellant, ¡and that the latter should accept the same subject to inspection in Memphis, but there is a conflict in the testimony as to the full extent of the agreement made there between the parties. Appellee testified that there was no new contract between the parties except with regard to the inspection, and that the agreement was that appellant should accept performance of the original contract, but that a few cars should be shipped to appellant at Memphis subject to inspection there and that if the inspection at Memphis did not prove satisfactory appellant would send another inspector to appellee’s place of business at Banks for the purpose of inspecting the remainder of the stock to be shipped under the contract.

On the other hand, appellant contends, and the witnesses introduced tend to establish the fact, that the negotiations and agreements between the parties at Memphis had no reference to the original contract, which had already been canceled and rescinded, bnt that a new oral contract was entered into whereby appellee agreed to ship carloads of stock to Memphis subject to inspection by appellant there, and that appellant was only to accept such number of oars on those terms as appellee was willing to ship from time to time, and that there was no agreement with respect to the number of cars to be shipped under those terms.-

There is no controversy, however, that the price of the stock was the same as that specified in the original contract.

After this meeting between the parties at Memphis, appellee returned to Banks, and the next day appellant mailed to appellee the following letter:

“Confirming our conversation had with you while at our office today with reference to order for automobile strips and billets which you hold, it is our understanding that you will try out a few cars and ship same subject to inspection at the factory, shipping the hickory and oak rim-strips to Lansing and the spoke-billets to Memphis, you to draw on us at Memphis through the Commercial Trust & Savings Bank for 80 per cent, of the invoice, we to. send you inspection report and balance promptly on receipt of inspection report. It is also understood that we are to take about 25 per cent, red oak in the 54-inch lengths, truck rims only, you making the 45-inch lengths out of hickory only.”

This letter was received by appellee, and it is the only written communication between the parties bearing directly upon the details' of the transactions between the parties at Memphis on the occasion above mentioned.

The contention of appellant is that this letter had reference solely to the new oral agreement made in Memphis. But, on the other hand, the contention of appellee is, and he testified to that effect, that this letter had reference to the original written contract, or “order”— as the witness designated the contract.

Appellee then proceeded to make shipment to appellant, and the car, the shipment of which had been held tip on account of the controversy concerning the inspection, was shipped by appellee to appellant, and the latter accepted and paid for the same on the terms contended for by appellee. There were four carloads shipped, two cars of strips and two cars of billets.

On September 11, 1920, appellee mailed to appellant a letter requesting the latter to send an inspector to load out the stock. That portion of the letter which has bearing upon the present controversy reads as follows:

“Would like for you to send an inspector to load out the stock which I sold you. It takes so long to get a report on car after it is shipped. I have four cars which I shipped to West Chester in June that I have no report on. ****** I do not care to load out any more stock until I get a report on at least one or two cars that I have shipped you. It seems that the first car that I shipped should have been in before this time.

“The last time I was in Memphis, we had an agreement that I was to draw 80 per cent, on the stock. The first draft was returned, but finally paid. You wrote me a letter authorizing me to draw on you for 80 per cent., and to send a draft to a certain bank in Memphis. I did this, with invoice and B/L attached to draft.

“I made a deal with you for this stock, and turned down a deal as fully as good, and with quite a lot less trouble to handle, for this one.

“Let me know when you can have an inspector here, so I can get some oars placed.”

On September 13 appellant wired appellee as follows: “Stop all production for us. Wire amount now cut. Writing. ’ ’ This was followed up by a letter mailed by appellant to appellee confirming the telegram and explaining that the necessity for canceling the business relations between the parties was the decline in the automobile industry, and the letter concluded with the following paragraph:

“It is our intention to take such stock as you have out and cut for us, but cannot take more than what you have cut on receipt of our wire, unless it is necessary to cut just enough to make a minimum ear. Advise amount cut, and we will send inspector. ’ ’

On receipt of this letter, appellee wrote to appellant as follows:

“I have ear rims and car billets. Will wire as soon as I get cars placed, so you can send inspector. You could not use two more cars on the order given me, besides the two I have cut, could you? I have gone to considerable expense to get this order out, and feel that you should take what timber I have out. I have the logs on the road, and would have had them all cut, but the railroad would not furnish me with cars to move them. Let me hear from you by return mail. Also let me know if you can send inspector on short notice.”

The two cars referred to in the above letter were shipped out and were received by appellant at destination.

On September 16 appellee sent a wire to appellant requesting the latter to send an inspector, and appellant replied as follows :

“Impossible send inspector quick. Stack stock on hand. Cut one car each hickory billets strips. Will send best inspector latter part of next week. Load everything cut then.”

There were other telegrams that passed between the parties with respect to the inspection of the cars, but they relate to cars which appellant had expressed a willingness to accept.

On October 25 appellee wired to appellant notifying it that he had a car of rim-strips and about a car of billets, and asked for an inspector. One of appellant’s employees went to Banks on November'1, according to his testimony, for the purpose of making an inspection, but claims to have found no stock ready. This was the last transaction between’ the parties.

Among other instructions, the court gave the following, over the specific objection of appellant:

“If you. find defendant breached its contract of July 31, 1920, with plaintiff, and if you find the plaintiff sustained damages by such breach, and if you do not find that plaintiff acquiesced in the action which he alleges to be a breach of the contracts, you are instructed that plaintiff’s damages is the difference between the contract price of the total amount of strips and billets which defendant contracted for but refused to take and the total cost of the manufacturing and loading them on the cars ready for shipment.”

This instruction was erroneous and prejudicial, for the reason that it submitted to the jury the question whether or not the original contract of July 31, 1920, had been canceled without the consent of appellee, and whether there had been a breach of that contract without the acquiescence or consent of appellee.

We are of the opinion that, according to the undisputed evidence, the original written contract between the parties was rescinded by the communications between them on August 18, 1920, which were in the form of telegraphic messages and about which there is no dispute.

After appellee had unequivocally refused to permit Bastian to inspect the stock, appellant sent the following message: “Cancel order and forget it. Our man knows our requirements.” This was a distinct and unequivocal proposal to cancel or rescind the contract on account of the controversy with regard to the inspection, and appellee made the following answer to that proposal: “No stock being ’ loaded. Trouble no inspector. If this man fair sample of your inspectors, the order is already canceled. ” No other interpretation can be placed upon the language of this message than that it was an acceptance of appellant’s proposal to cancel the contract on account of the controversy with regard to the inspection.

It is true that this message stated the qualification that if Bastian was a fair sample of the inspectors sent out by appellant the order was already canceled, but the parties had already come to the distinct disagreement about the inspection, and the message reads that the contract “is already canceled,” meaning, necessarily, that the cancellation resulted from their failure to agree upon the proper man to do the inspecting.

There was undoubtedly a complete acquiescence on account of the controversy between the parties that they would cancel or rescind the contract and not insist upon a further effort to perform it according to its terms.

The court erred, therefore, in giving this instruction, for it permitted the jury to find that this contract was still in force, and that appellant’s refusal by telegram dated September 13 to accept any more stock further than the carloads already manufactured was a breach of this contract.

If the original contract was in force, the telegram of September 13 was a breach thereof because it constituted a refusal to accept any more carloads other than those already manufactured and ready to ship.

Appellant’s contention is that this telegram was not a breach of its contract, for the reason that the original written contract had been rescinded,' and that, under the terms of the oral contract made in Memphis on August 19, it was not bound to accept any definite number of carloads of stock.

It was a question for the jury to determine what the contract made in Memphis on August 19 was, — whether it amounted, as contended by appellee,' to an agreement of sale according to the terms specified in the original written contract, or whether it was merely a contract, as contended by appellant, for the acceptance of such amount of material as appellee should see fit to ship.

Since we find that the original written contract was canceled by the telegraphic correspondence on August 18, it follows that the contract negotiated in Memphis on the following’ day was an oral one, notwithstanding it had reference to the sale of stock according to prices mentioned in the written contract. Even if it was an agreement to carry out the original contract. according to its terms, it must be tested as ail oral contract, for it depended, for its existence, upon an oral agreement. Izard v. Connecticut Fire Ins. Co., 128 Ark. 433.

The original contract contained mutual obligations of the respective parties, and it was within their province to rescind it by mutual consent, such reciprocal obligations being the consideration for the rescission as well as for the original undertaking. So, after the original contract had been rescinded, the parties could, and, according to the testimony adduced on the part of appellant, did, enter into negotiations for a new contract covering the subject-matter of the old contract.

This new contract was, as before stated, an oral one, even though it adopted the terms of the old contract by reference thereto. The confirmatory letter written by appellant to appellee on the next day was not complete in itself so as to state the terms of the new contract. It was therefore merely evidentiary, in part, of what the contract was and is subject to explanation by either party.

This state of the proof makes it a question for the jury to determine what the extent of the contract was that was entered into between the parties on the occasion named, and the case should have gone to the jury solely on that question and on the question of the alleged breach thereof.

. It is true that appellee in the complaint asserted the right of recovery solely on the original contract, but proof was directed towards the transaction between the parties on the occasion of their meeting in Memphis, and as testimony was introduced without objection, it constituted an election to treat the pleadings as amended so as to conform to the proof.

We cannot sustain the judgment, however, upon a presumed finding of the jury in favor of appellee on that issue, for the jury may have based the verdict upon the finding that the original written contract had not been rescinded,

The court gave, at appellant’s request, an instruction (No. 4) setting forth the correspondence between the parties between the dates of September 15, 1920, and October 25, 1920, and concluded with directions to the jury that if they found that appellant “within a reasonable time sent an inspector to inspect and accept such material as was tendered by plaintiff, and on arrival of inspector at plaintiff’s premises plaintiff had no stock on hand to inspect of the kind embraced in the contract, that there was no refusal of defendant to comply with the terms of the contract.”

This instruction was more favorable to appellant than it was entitled to, for it assumed that appellee had acquiesced in the agreement to insist on the shipment of only such stock as had been manufactured. It was a question for the jury to determine whether or not,, from this correspondence, appellee acquiesced in the terms proposed by appellant in its letter of September 13 confirming the telegram with regard to accepting no more stock except that which had been manufactured.

For the error in giving instruction No. 3 over appellant’s specific objection, the judgment is reversed and the cause remanded for a new trial.


author: McCulloch,, C. J.

text:
    Acree v. Patterson.
    Opinion delivered April 17, 1922.
    1. Schools and school districts — review of orders of county board of education. — While certiorari is the proper remedy for review by the circuit court of orders of the county board of education making changes in the school districts, the remedy thus ''afforded’ is merely a review of errors of the board, and not a trial de novo upon the merits.
    2. Schools and school districts — review of orders of county board — evidence.—On certiorari to review on order of the county ■board of education changing boundaries of school districts, the circuit court is not bound by the record made before the board, but other evidence may be considered to acquaint -the court fully with all matters presented to such board.

      3. Schools and school districts — notice op proposed change.— In proceedings under Crawford.& Moses’ Dig., § 8823, on petition of the electors of certain districts for a change in the boundaries of the districts, the failure of the petitioners to give notice of the proposed change in the manner required by Crawford & Moses’ Dig., § 8821, renders the proceedings void; such notice being jurisdictional.
    4. . Schools and school districts — attack on order creating new district — parties.—Directors of school districts affected by an order changing their boundaries, being electors, are proper parties to a proceeding to test the validity of an order of the county board creating a new district out of the former districts.
    5. Schools and school districts — creation op new district— parties. — Where certiorari to contest the creation of a new school district out of the three old districts was brought in the name of the old district and of one director of each district, it will be presumed, until the contrary is shown, that the districts were parties, and that each of the three named.directors joined in the petition in their individual capacity.
    6. Schools and school districts — creation op new district— parties. — Each of the three old school districts from which a new school district was formed was a proper party in interest in a proceeding to. test the validity of an order of the county board of education creating the new district.
    7. Schools and school districts — certiorari—parties.—Objection that certiorari to test the validity of an order creating a new school district was directed against the petitioners for the new district, instead of against the county board of education, goes to the form and not the substance of the controversy, especially where the writ ran to the secretary of the board and commanded the production of the records, which was equivalent to making the board itself a party.
    Appeal from Searcy Circuit Court; J. M. Shinn, Judge;
    affirmed.

      W. F. Reeves, for appellant.
    Appellee’s remedy was by appeal and not certiorari. 25 Ark. 32; 37 Ark. 318; 30 Ark. 435; 35 Ark. 180; 52 Ark. 213.
    The petition for the writ of certiorari was not verified, which rendered it fatally defective. 6 Cyc. 781-783.
    ' The petition did not contain proper parties. They were not suing as a board 'but as individuals.

      The petition did not contain proper parties defendant. The board of education was a proper party, as well as the directors of District No. 90.

      J. F. Henley, for appellee.
    The 1919 act created no right of appeal and certiorari was the proper remedy. 49 L. R. A. (N. S.) 565; 44 L. R. A. (N. S.) 1211-14.
    The proper parties plaintiff and defendant were named in the petition. It was not necessary to allege a representative capacity of the petitioners, or that they would suffer any personal loss. The question is purely of a public nature, and any citizen had the right to bring the case. 44 L. R. A., supra. District 90 was not a proper party since it never existed, having been created without the posting of proper notices.
    Appellant waived the failure to verify by failing to call specific attention thereto in his demurrer. C. & M. Dig., §§ 1190 and 1246; 88 Ark. 433; 71 Ark. 609.
    The board of education had no jurisdiction. 116 Ark. 293.
   McCulloch,, C. J.

This appeal is from a judgment of the circuit court of Searcy County quashing an order of the board of education of that county creating a new school district, designated as No. 90, out of territory formerly embraced in districts Nos. 29, 33 and 81.

Several of the questions raised on the appeal 'have been settled in the decision of this court in Mitchell v. School District No. 13, ante p. 50. We decided in that case that the statute creating the county board of education substituted the board for the county court, and only transferred the power to the board without repealing or in anywise affecting the statutory procedure with respect to matters heretofore within the power of the county court.

The statute provides that new school districts may be formed, or changes in boundaries may be made “upon a petition of a majority of all the electors residing upon the territory of the districts to be divided. ’ ’ Crawford & Moses’ Digest, § 8823.

The statute further provides that notice of the proposed change shall he given by posting hand-bills in “four or more conspicuous places in each district to be affected, one of said notices to be placed on the public school building in each affected district.” Crawford & Moses ’ Digest, § 8821.

In this instance the petition was filed with the county board of education for the creation of a new district out of territory of the three districts mentioned above. There was a remonstrance filed, but the court granted the order establishing the new 'district. The district as established, however, embraced a smaller area than that described in the petition.

Appellees, Patterson, Moore and Beck, each of whom was a director of one of the three districts mentioned above, applied to the circuit court for a writ of certiorari to bring before that court for review the proceedings before the county board of education. The writ was granted and on hearing thereof in the circuit court the judgment appealed from was rendered.

The cause was heard upon the pleadings and upon affidavits showing that, according to the evidence adduced before the county commissioners, the notice of the change in the districts -was not given in the manner prescribed by statute.

We have already decided, as before stated, that the power to make changes in school districts has been transferred from the county court to the county board'of education, and that certiorari is the proper remedy for review by the circuit court of such orders rendered by the board. Mitchell v. School District No. 15, supra. The remedy thus afforded is merely a review for errors of the board and not for trial de novo upon merit. But the circuit court was not bound by the record made before the inferior tribunal, and other evidence dehors the record was admissible for the purpose of acquainting the court fully of all the matters presented to the inferior tribunal. Hall v. Bledsoe, 126 Ark. 125.

It is shown that, according to the evidence adduced before the board, the notice was not given as required by statute, and, as the giving of the notice was jurisdictional, the proceedings creating the new district were void. Lewis v. Young, 116 Ark. 291; Mitchell v. School District No. 13, supra.

.It is unnecessary to determine whether or not appellees are correct in another ground which they set forth for declaring the order of the board to be void.

It is contended, however, that appellees are in no position to attack the validity of the order. Appellees are n-anged as “School Districts Nos. 29, 33 and 81, Dan Patterson, Elisha Moore and Robert Beck,” and it is alleged in the petition that Moore is a director in District No. 29, that Patterson is a director in District No. 33, and that Beck is a director in District No. 81.

Conceding that the individuals named, though directors, had no authority to bring their respective districts into the litigation, it is shown that they were directors of the district, which necessarily implied that they were electors, and this gave them such an interest as made them proper parties in litigation to test the validity of the order of the board of education.

It does not appear, however, from the petition that the three districts were represented solely by one director of each. The presumption must be indulged, until the contrary is shown, that the districts were brought in by all three of the directors in each, and that these three individuals also joined in the petition for the writ in their, own individual capacity.

Each district affected by the creation of the new district was a proper party in interest in the proceedings to challenge the validity of the order creating the new district out of that territory. In fact, the old districts were, under the statute itself, parties to the proceedings. School District No. 44 v. School District No. 10, 128 Ark. 383.

Again, it is urged that the writ should run against the county board of education, instead of against the petitioners before tbe board for the 'creation of the new district. This merely goes to the form and not to the substance of the controversy, for the real parties to the controversy were before the court, attacking and defending the validity of the order made by the board of education. The writ, in fact, ran to the secretary of the board and commanded the production of the records, and this was tantamount to making the board itself a party to the proceedings.

"We are therefore of the opinion that the defect, if any, was merely one of form and not of substance.

Judgment affirmed.