text:
    United Order of Good Samaritans v. Grigsby.
    Opinion delivered December 9, 1929.

      A. D. Whitehead, for appellant.

      W. G. Dinning, for appellee.
   Humphreys, J.

This is an appeal from a judgment for $300 rendered 'by the circuit court of Phillips County against appellant upon an insurance policy issued by it upon the life of Annie Grigsby, in which appellees were the beneficiaries.

Appellant filed an answer to the complaint, denying liability under the policy upon the ground that the insured, Annie Grigsby, died during the time that she was automatically suspended from the order for failure to ¡Day her July, 1927, dues, on or before the 10th day of said month, or within the time prescribed by the constitution and by-laws of the order.

The cause was heard upon the pleadings and testimony introduced by the respective parties, at the conclusion of which each party requested an instructed verdict, and made no request for additional instructions. The court refused appellant’s request, and instructed a verdict for appellee. The only question therefore presented by the appeal is whether there is any substantial evidence to support the verdict and consequent judgment.

The insured died on August 1,1927. She did not pay her July dues until July 11, 1927. The policy provided that the constitution and by-laws of appellant’s order should be read tog-ether as a part of the contract. Appellant introduced §§ 7 and 10 of article 9 of the by-laws and constitution of the order to fix the status of the insured as a delinquent and a suspended member of the order at the time of her death. The sections are as follows:

“Section 7. If the dues are not received at the home office by the tenth of each month, policy is automatically lapsed and becomes null and void; should the member fail or refuse to pay any taxes or fines levied by the supreme, grand or subordinate colony, should sickness or death occur after thirty days from the date said taxes were due, neither the supreme, grand or subordinate colony shall be liable for any benefits, and the certificate shall become absolutely nuil and void, although the endowments have been paid.”
“Section 10'. If the dues are not paid by the 10th of the month due, the insured shall be automatically suspended, and in case of sickness or death neither the supreme, grand or subordinate colony shall be liable for any sum under the contract. 'Should the dues be paid, neither the insured nor the beneficiaries shall be entitled to any benefit, if sickness or death occurs before the expiration of thirty days; also the subsequent payment of such arrears shall not entitle the insured or beneficiaries to any benefits for sickness or death occurring during the period of such suspension. ’

The section quoted, standing alone, under the construction placed upon similar provisions in fraternal insurance policies in the oases of United Order of Good Samaritans v. Thompson, 172 Ark. 884, 290 S. W. 965, and United, Order of Good Samaritans v. Betts, 179 Ark. 203, 14 S. W. (2d) 1108, would relieve appellant of liability in this case; but the 'sections do not stand alone in the policy in the case at bar. Appellee introduced in evidence the second paragraph of § 6, article 9, of the constitution and by-laws of the order, not called to our attention in the cases cited, if there was such a rule, which is as follows:

“The dues are payable in advance, and must be paid on or before the first of the month, with ten days grace. ’ ’

This section applies to policies upon which monthly dues are payable, and means that the insured had ten full days after the first day of the month within which to pay her July dues. She paid the dues on July 11, within the period of the ten days grace allowed her under the clause last quoted. If there is a conflict between this provision and the sections first quoted, which there seems to be, the provisions most favorable to the insured should be applied and the beneficiaries allowed to recover. Under onr construction of the latter provision, the trial court’s peremptory instruction in favor of appellee was correctly given.

No error appearing, the judgment is affirmed.

Kirby, J., dissents.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Hunter v. State.
    Opinion delivered December 9, 1929.

      White S White, for appellant.

      Ral L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Kirby, J.

Appellant prosecutes this appeal from a judgment of 'conviction for the crime of manufacturing intoxicating liquors, and contends that the evidence is insufficient to support the verdict, and.that the court erred in refusing to grant his motion for a continuance.

It appears from the testimony that the sheriff of Logan 'County, with one of his deputies, went to the home of appellant with a search warrant. Finding the house locked, he asked another man whom they saw there with a bucket where Dick Hunter was. He replied that he was in town, and he would go and get him. This man not returning', the sheriff left his deputy at the house and went to town, where he found Dick Hunter, who said he would be home shortly. The sheriff returned, and, Hunter not appearing, he and his deputy found a key, and searched the house, finding a ten-gallon jar of “home brew” in process of fermentation. It was sitting behind the kitchen stove, on a lard can, with a lighted lamp under it. They found several bottles of “home brew” in the house and about a gallon of liquor in the barn. Witnesses stated that, from experience .as officers and examinations made of various intoxicating liquors, that “home brew” was an intoxicating and alcoholic liquor, and that-the “home brew” in the bottles was intoxicating liquor, although he admitted that he did not drink any of it.

No evidence was offered on behalf of appellant. The officers, experienced in such matters, testified that the liquor found fermenting in the container, in process of manufacture, was “home brew,” and intoxicating when manufactured, and the testimony was sufficient to support the verdict. Burns v. State, 179 Ark. 1, 13 S. W. (2d) 820; West v. State, 179 Ark. 28, 13 S. W. (2d) 821; Mahan v. State, 179 Ark. 189, 14 S. W. (2d) 1113; Fuller v. State, 179 Ark. 93, 18 S. W. (2d) 913; Kindle v. State, 174 Ark. 1179, 297 S. W. 827.

Neither was error committed in denying the motion for a continuance. The motion states that the absent witnesses, Jim Snelling and his wife, who were absent from the State temporarily, would testify that they were living in the house of the defendant, using and occupying a part of it with him, and knew of the circumstances of the case, and would swear that the liquor found in the house was not in the custody of the defendant, nor in any manner intoxicating and alcoholic, and that the defendant was not in any manner connected with the said substance in its manufacture; that the witnesses were residents of the Northern District of Logan County, Jim Snelling in the regular employ of one of the coal companies, and that, if the continuance be granted, the witnesses would be present and testify as alleged at the next trial; that it was useless to have subpoenas issued for them, as they were in Kansas City, Mo.

The indictment against appellant was returned on the 6th of August, and his trial had on the 15th day of August, 19'29. No subpoenas were issued for the absent witnesses, and the motion shows only that they were absent from the county on the day the case was set for trial, not stating that they were not in the county at any time after the indictment wás found. No evidence was taken or showing made that the testimony of witnesses who were out of the jurisdiction of the court could be had if the continuance was granted to the next term, except the opinion of the appellant, stated in the motion, that they would return and could be served with process before the next term of court. Appellant knew of the search of his dwelling on the day it was made and the purpose of it, although he failed to accompany the officers in making the search, after invitation to do so, and necessarily knew that he would need the testimony of the witnesses who lived in the house with him, and certainly after the indictment was returned, but made no effort to procure their attendance by legal process. It thus appears that no abuse of discretion by the trial court in overruling' the motion was shown. James v. State, 325 Ark. 269, 188 S. W. 806; Eddy v. State, 165 Ark. 289, 264 S. W. 832; Lewis v. State, 169 Ark. 340, 275 S. W. 663; Harris v. State, 169 Ark. 627, 276 S. W. 361; Adams v. State, 176 Ark. 927, 5 S. W. (2d) 946; Edwards v. State, ante p. 363.

Appellant only requested one instruction on reason-. able doubt, and made no objection to any of the instructions given by the court. The instruction given by the court on reasonable doubt was a correct one, and fully covered the question, and no error was committed in refusing to give the instruction requested by appellant on the same point.

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


author: Kirby, J.,

text:
    Jones v. Model Laundry.
    Opinion delivered December 9, 1929.

      C. A. Holland, for appellant.

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

(after stating the facts). It is first contended for appellant that the court erred in overruling its demurrer to the answer of appellee challenging its sufficiency, it being contended that the law does not warrant the set-off. The statute, § 477, C. & M. Digest, provides: “Nothing contained in this act shall change the nature of the defense, or prevent the allowance of discounts or set-offs, either in law or equity, that any defendant may have against the original assignor previous to the assignment, or against the plaintiff or assignee after the assignment.” Also § 1197, C. & M. Digest, provides: “A set-off may be pleaded in any action for the recovery of money, and may be a cause of action arising either upon contract or tort.” The general rule is stated in 24 R. C. L. 819, as follows: “The general rule is that the assignee of a chose in action, for the assignment of which no protection is especially provided by law, takes subject to all rights of set-off then held by the debtor against the assignor. Likewise the right of recoupment is attached to a contract and goes with it into whosoever hands the right may come to sue on the contract.” See also 23 Enc. of Proc. 742, 744. In a suit between the assignee on" a note against the maker, where it does not appear affirmatively that the assignment was made before the maturity of the note,, the maker is entitled to all the defenses which he could have made against the note in the hands of the original owner. Robinson v. Swigart, 13 Ark. 71; Ruddell v. Landers, 25 Ark. 238. No error was committed therefore in overruling the demurrer.

There is no merit in appellant’s contention that the warranty as set out in the memorandum of sale only related to the new padding and other new appliances, in stating, after mentioning them, “to carry guaranty same as new machine,” the first part of the description being “1 used 24 watts flat work ironer,” the obvious meaning being* to guarantee the machine with the new equipment on it, “to carry .guaranty same as new machine,” and as though there had been no period after the word “ironer,” and the whole of it had been one sentence. It is true the testimony does not show what guaranty was given with new machines, but the law implies in the purchase of a new machine a warranty that it is reasonably fit for the purpose for which it was to be used and for which it was sold. Dyke v. Magdalena, 171 Ark. 225, 283 S. W. 374; Bixler Co. v. Hall, 134 Ark. 96, 203 S. W. 257; Indiana Silo Co. v. Harris, 134 Ark. 218, 203 S. W. 581.

The undisputed testimony shows that the written guaranty was made in the memorandum contract of sale, and also the defective condition of the machine as delivered and installed, rendering it unfit for the purpose for which it was intended, in violation of the warranty, and that the damages suffered because of such condition were more in amount than the balance due on the account to the selling company purchased by appellants. The issue was fairly submitted to the jury on the instructions given, and the instructions requested by appellants were more in the nature of peremptory instructions and not clear statements of the law, and no error was committed in refusing to give them.

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


author: Mehaeey, J.

text:
    Harrell v. Southwest Mortgage Company.
    Opinion delivered December 9, 1929.

      Ward <& Ward, for appellants.

      Arthur Sneed, for appellee.
   Mehaeey, J.

Appellants had borrowed money from the Missouri State Life Insurance Company, upon which they were paying- 6 per cent, interest. The Clay County Abstract Company advertised that it had money to lend at a low rate of interest, a long- time to repay, and no commission. Appellants saw this ad, and applied to the Clay County Abstract Company for a loan on their farm. They desired to increase the loan; that is, to borrow more money than enough to take up their loan with the Missouri Life Insurance Company, and they also wished to get it at a lower rate of interest.

The -Clay County Abstract Company was operated by Ira C. Langley and O. E. Winto-n. The Missouri State Life Insurance Company at first refused to permit payment of the loan to it because it was not due, but finally, through the efforts of Ira C. Langley, it agreed to accept payment of its loan.

The appellee, through the Clay County Abstract Company, agreed to lend appellants $5,000, and they executed note and mortgage to secure the payment of the $5,000, together with ten interest notes, the loan being for ten years.

The appellants went to the office of the Clay County Abstract Company to execute the necessary papers to complete the loan. The papers were signed and acknowledged before O. R. Winton. At the same time that the mortgage for $5,000 and notes were executed, it is alleged that a second mortgage for $500 was executed to secure four notes of $125 each for commissions. This suit was brought to foreclose the second mortgage.

There is no controversy about the first mortgage for $5,000, and no controversy about the interest notes, but appellants contend that they did not sign the second mortgage and the notes which it secured, and did not agree to pay any commission.

Copies of the notes and mortgage sued on were filed with the complaint. Defendants answered, denying the execution of the second mortgage and notes which it secured, and their answer was verified, and later appellants filed an affidavit denying the genuineness of the four promissory notes and mortgages involved in this suit.

O. R. Winton, who took the acknowledgment of plaintiffs to the mortgages, and in whose presence it is alleged that the notes were signed, was dead at the time the testimony was taken, and, of course, his testimony could not be had.

The evidence shows conclusively that the attorney, Arthur Sneed, had in his possession the original mortgage and notes in court, but they disappeared, and could not be found during „the trial. The clerk testified from the mortgage record, and introduced a certified copy of the mortgage.

The appellants testified that they did not sign the four notes sued on as commission for securing the loan, and that they knew nothing about the second mortgage or the notes which it secured, and did not agree to pay any commission. The commission was not payable to the Clay County Abstract Company or to Langley or Winton.

On cross-examination appellant, Frank A. Harrell, was banded a photostatic copy of the second mortgage, and asked whether the signature resembled his, and he said it did a little bit; that it looked something like it, but that he did not sign it, even if it did look like his signature.

Witness had written, requesting the mortgage to be sent to the Bank of Piggott, but, instead of sending the original, they sent copies. They admitted that they signed the $5,000 mortgage and the notes which it secured, and this mortgage was introduced for the purpose of showing the signature, and for no other purpose. They contended that they did not sign the second mortgage and notes, but that, if they did sign, it was a fraud, and that they had been tricked into signing it; that, if the signature was theirs, it was obtained by some kind of a scheme; by 'fraud. Both of them could read and write, and testified that Winton handed them the mortgage, and Harrell read it, and then Winton picked up ten papers which he called coupons. They represented interest on the loan, and he told them to sign them, and after Harrell had signed they were passed over to his wife, and she signed them.

Harrell testified that the signature on the copies looked very much like his, but, if it was, it was obtained by error, and he did not mean to sign them; testified that what he really meant was that his signature was obtained through fraud. Witness does not know whether he read all the papers that he signed or not. He said Winton was in a hurry, and that he sat at one table and signed the papers and his wife sat at a different table in the same room.

Mrs. Harrell, the wife of Frank A. Harrell, testified substantially the same as her husband, but she said she did not know whether it was her signature or not, and she did not know whether it was her husband’s signature, but that they resembled her signature all right, but she did not sign them. She just signed what was handed to her after Mr. Harrell had signed them, and did not pay close attention.

The only question involved is a ■ question of fact. If the appellants signed the notes and mortgage without being induced to do so by fraud, they are liable. If they did not sign them, or if their signatures were obtained by fraud, and they did not agree to pay any commission, then they are not liable.

It is appellants’ contention that the proof is not sufficient, 'because they filed an affidavit denying the genuineness of the second mortgage and notes, and that when they filed this affidavit the burden was upon the appellee to show that the signatures were genuine. The fact that the answer was sworn to by the parties makes no difference, because Harrell simply swore that he verily believed that he had a good and valid defense, and that the facts stated in the answer were true to the best of his knowledge and belief. But there was an additional affidavit denying the genuineness of the mortgage and notes, and a proper affidavit denying the genuineness, either in the answer or a separate affidavit, would be sufficient. This affidavit was made in compliance with § 4114 of C. & M. Digest, which provides: “Where a writing purporting to have been executed by one of the parties is referred to in and filed with a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun.”

The purpose of the statute is to permit the party who files a written instrument with his pleadings to introduce it in evidence as genuine, unless its genuineness is first denied under oath. When this affidavit is made and its genuineness is denied, then the party, without some other evidence, could not introduce the instrument as genuine.

This court said, in discussing this statute: “It means only that, in the absence of such an affidavit, the party offering the instrument may introduce it without proof of its execution, and that it is taken prima facie as genuine, but its genuineness may be contested. In other words, the statute merely establishes a rule of evidence, and does not bar the opposite party absolutely of his right to contest its genuineness, nor does the 'failure to deny its genuineness by affidavit give it the force of absolute verity. Where such an instrument is pleaded in a complaint, its genuineness is not in issue unless denied in the answer; but the pleading of such an instrument in the answer by way of defense does not call for a reply from the plaintiff. He may, by failing to file the necessary affidavit, permit it to be read as prima facie genuine, and then introduce evidence contesting its genuineness.” St. L. I. M. & S. R. Co. v. Smith, 82 Ark. 105, 100 S. W. 884; J. R. Watkins Medical Co. v. Montgomery, 140 Ark. 487, 215 S. W. 638; Mo. Pac. Ry. Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943; Weaver v. Carnall, 35 Ark. 198, 37 Am. Rep. 22; Hall v. Rea, 85 Ark. 269, 107 S. W. 1176.

Where the affidavit is filed in compliance with the statute, it is then necessary for the plaintiff to prove the execution of the instrument. If the affidavit is not filed, the instrument may be introduced in evidence without other proof of its execution.

The Supreme Court of New Mexico, in construing a similar statute, said: “The genuineness of an instrument evidently goes to the question of its having been the act of the party just as represented; or, in other words, that the signature is not spurious, and that nothing has been added to it or taken away from it which would lay the party changing the instrument or signing the name of the person liable to forgery. The due execution of an instrument goes to the manner and form of its execution, according to- the laws and customs of the country, by persons competent to execute it.” Puritan Mfg. Co. v. Toti & Gradi, 14 N. M. 425, 94 Pac. 1022; Moore v. Copp, 119 Cal. 429, 51 Pac. 630; Baldwin v. Van Deusen, 37 N. Y. 487.

The Idaho Supreme Court said, in discussing a question similar to the one in this case: “Could it be contended that setting np those facts of fraud and deceit was denying the genuineness and due execution of the note? Clearly not. We think that the law in the case at bar set up for plaintiff every defense agiainst this release that the company set up in their answer in our supposed case, unless it should he contended that their defense of fraud and misrepresentation was a denial of the genuineness and due execution of the instrument, which we do not think could be maintained, even if their answer was verified.” Cox v. Northwestern Stage Co., 1 Idaho 376.

It is clear, from all the decisions that we have found construing this statute, that the only purpose and effect of the statute is to require proof of the execution of the instrument before its introduction. Or, in other words, to require proof other than merely the certificate of the officer or the alleged signatures of the parties. And, even if the affidavit is not filed, still the. alleged maker of the instrument may show that it was procured by fraud, and that it is void. Even where the signature is genuine, the party may prove that the instrument is void because obtained by fraud. Therefore the only question involved is whether the evidence in this case shows that this second mortgage and notes which it secured were genuine. That is, whether the appellants executed the mortgage and notes. If the affidavit had not been filed, they would have been admitted as genuine. That is, that they, in fact, executed the instrument. It would, however, not prevent the makers from showing that they were obtained by fraud. As to whether the appellant signed the notes and mortgage was, as we have already said, a question of fact, and the finding of the chancellor is sustained by the evidence.

It is contended, however, by appellant that some of the evidence introduced on the part of the appellee was incompetent, and that for that reason the case ought to be reversed. We try chancery cases here de novo, and if there was incompetent testimony before the chancellor it was his duty to disregard it. But when it is here on appeal this court, no matter what the chancellor ¡may have considered, disregards all incompetent testimony, and not only tries the ciase de novo, -but tries it on the competent testimony in the case. Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402, 200 S. W. 1029.

The evidence in this case shows that the mortgagee for $5,000, and the notes which it secured were signed by the appellants. They both admit signing these notes and mortgage. There is evidence tending to show that the signature on the $5,000 mortgage and notes which it was given to secure wias the same as the signature on the second mortgage and notes sued on. The parties themselves admit that the signature is very much like their signature, but contend that, if they had signed, they were induced to do so by the fraud of the other party. These were questions of fact, and this court has many times held that a chancellor’s finding -on a question -of fact will be permitted to stand unless it is clearly against the preponderance of the evidence.

This court recently said: “It is the settled rule of this court that the findings of fact made by a chancellor will not be disturbed upon appeal unless they are clearly against the preponderance of the evidence.” Turner v. Adams, 178 Ark. 67, 10 S. W. (2d) 41; Fort Smith v. Norris, 178 Ark. 399, 10 S. W. (2d) 861; Barton v. Hardin, 178 Ark. 1150, 13 S. W. (2d) 624.

The chancellor found in favor of the appellees, and he therefore must have found that the second mortgage and notes which it was given to secure were executed by the appellants, and they were not induced to sign the same, because of any fraud practiced by the other party. And, since the chancellor’s finding’s on these facts are not against the preponderance of the evidence, it becomes unnecessary to discuss other questions discussed by learned counsel.

The chancellor’s finding beings supported by the evidence, it is binding upon this court, and the decree is therefore affirmed.


author: Mehaffy, J.

text:
    Wallace v. State.
    Opinion delivered December 9, 1929.

      Elmo CarlLee, for appellant.

      Eal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Mehaffy, J.

The indictment in this case charged the appellant with grand larceny, alleged to have been committed on the 15th day of December, 1928, by unlawfully and feloniously stealing, taking and carrying away 171 pounds of seed cotton, of the value of $15, and two cotton-pick sacks of the value of $1.50, the property of Roger Williams.

Appellant was convicted and sentenced to one year in the penitentiary, and he prosecutes this appeal to reverse said judgment. Appellant, in his motion for a new trial, urges a reversal of the case because one of the jurors left the other eleven of his fellow-jurors, and appeared before the court and asked the court if he would suspend the sentence during good behavior, if they found him guilty and fixed his punishment at one year in prison.

In support of his motion for new trial, appellant filed the affidavit of W. B. Mayer, one of the jurors, who testified, in substance, that, after they had deliberated quite a while, and the jury were divided, they agreed to send one juror, Sanford Davis, to the court to ascertain if he would suspend the sentence on good behavior if the jury would return the verdict of guilty, and fix his punishment at one year, and recommend that the sentence be suspended during’ good behavior; that said juror went to the court, and was gone ten or fifteen minutes, and came back and said it was all right.

This juror testified that he would not have consented or returned a verdict if he had not been assured that Wallace would not be sentenced, but that his sentence would be suspended. He also testified that he felt that the evidence did not warrant conviction at all, but thought this sort of a verdict and suspended sentence would be better for the defendant than to keep him and subject him to the third trial, with its expense and worry.

Also, in support of his motion for a new trial, appellant filed the affidavit of W. J. Dungan, an attorney, who stated that, after the case was submitted to the jury, one of the jurors, Sanford Davis, came from the jury room and approached the court and said, substantially: “ Judge, we can agree on a verdict of guilty and punishment at one year if you will agree to suspend the sentence during good behavior. ’ ’

It is earnestly insisted by the appellant that this'conduct of the juror was improper, and that ‘because of this misconduct he should have a new trial.

The statement of the court is that the juror came to him and made the statement, in substance, as detailed by the attorney, and that the court directed the juror to return to the other eleven without instructing him. In other words, when he came and made the statement to the court, the court immediately directed him to go back to the jury-room where the other eleven were, and did not give him any instructions or any intimations at all.

It is argued that the juror had to go from one floor to another and pass bystanders, but there is not even a suggestion that he spoke to anybody or that anybody spoke to him, either while he was going to the courtroom or going back to the jury-room.

In trials of felony cases at common law it was necessary to keep the jury together in charge of an officer, and not to permit them to separate from the time of their being impaneled and sworn, but in this State the matter is regulated by statute.

Section 3187 of C. & M. Digest reads as follows:

“The jurors before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officers,” etc.

Section 3190 of Crawford & Moses’ Digest provides:

“After the cause is submitted to the jury they must be kept together in the charge of the sheriff, in the room provided for them, except during their meals and periods for sleep, unless they be permitted to separate by order of the court,” etc.

The statute also provides that certain instructions shall be given to the jury, and this court has repeatedly held that it was within the discretion of the court to keep them together or permit them to separate.

The record is silent in the instant case as to whether the court had made any order at all, and there is no contention that the court had made an order to keep them together. ¡Some courts have held that where, under a statute like ours, the court may keep them together or permit them to separate, if he once makes an order to keep them together, it is error to thereafter permit them to separate. However, that question is not involved in this case. There is no contention that any order to keep them together was ever made by the court. There is no contention that the juror that separated talked to any■body or that anybody talked to bim during his absence from the other eleven.

Where the court permits the jurors to separate, or where there has been no order keeping them together, the burden rests upon the complaining party to show that prejudice resulted. There is no evidence in the record tending to show that anything was done by the juror or anyone else while he was absent from his fellow-jurors that resulted in any prejudice to the appellant. Kennedy v. State, 119 Ark. 611, 178 S. W. 920; Carlton v. State, 109 Ark. 516, 161 S. W. 145; Reeves v. State, 84 Ark. 570, 106 S. W. 945; Beason v. State, 166 Ark. 142, 265 S. W. 956.

The affidavit of the juror, however, is to the effect that when Davis came back to the jury-room he reported that he had been to the judge, and it was all right, and for that reason he voted for a conviction, and agreed to a punishment by imprisonment for one year. He testifies that but for that he would not have agreed to convict at all.

■Section 3220 of O. & M. Digest is as follows: “A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.”

In discussing the question of the admissibility of the testimony of a juror, this court said: “But this evidence was not competent for that purpose, and would be insufficient to support a finding that members of the jury had read these articles, because jurors are not thus allowed to impeach their verdict.” Capps v. State, 109 Ark. 193, 159 S. W. 193, 46 L. R. A. (N. S.) 741, Ann. Cas. 1915C, 957. See also Wilder v. State, 29 Ark. 293; Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. Rep. 20 ; Hampton v. State, 67 Ark. 266, 54 S. W. 746.

Since there was nó order of the court shown requiring the jury to be kept together, the burden is upon the appellant to show that something was done to his prejudice because of the separation of the jury, and this cannot be shown by the affidavit of one of the jurors, because he is prohibited by statute from giving testimony to impeach the verdict of the jury, except to show that it was arrived at by lot.

Appellant discusses several cases, but none of them announce the doctrine contrary to what we have here said. It is also contended by the appellant that the verdict is indefinite, and that it does not show what the defendant was found guilty of. The verdict is as follows:

“We, the jury, find the defendant guilty, and fix his punishment at one year, and recommend to the court to suspend the sentence on good behavior.”

It is true that the verdict must, either in itself or by reference to the indictment or information, contain a finding of every essential element of the crime of which the appellant is convicted. But a verdict of guilty implies a finding of every element essential to constitute the crime as charged, and it need not state the specific crime, it being sufficient that it finds the defendant guilty as charged in the indictment or information, or that from its language as a whole no doubt can arise as to the offense of which the accused is convicted.

“As a general rule, where an indictment charges separate and distinct crimes of different degree, a general verdict of guilty, without mentioning the degree, will be held to apply to the crime of highest degree, and, if defendant is guilty of a higher degree, the jury need not pass upon the lower ground.” 16 C. J. 1109.

" The prevailing rule, and the one that is adhered to by this court, is stated by Mr. Bishop as follows: A general finding of guilty will be interpreted as guilty of all that the indictment well alleges. It is sometimes said that such finding, where different grades of an .offense are charged, means guilty of the highest grade; but this is only another form of saying that it means guilty of all, because a higher grade includes the lower.” Porter v. State, 57 Ark. 267, 21 S. W. 467.

It is only in cases of murder that the statute makes it necessary for the jury to state in their verdict the degree of the crime.

Section 3205, C. & M. Digest, reads as follows:

“The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but, if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the- degree of the crime shall be found by such jury.”

But there is no such requirement in indictments for other felonies.

In Porter v. State, supra, this court said: “In this indictment only murder in the second degree, is charged. When therefore the jury return a verdict of guilty as charged, it is manifest, under the rule above stated, that they intend to return a verdict for that degree of murder. The object of the statute was to make sure that the accused should not 'be subjected to capital punishment unless the jury specially find that he is guilty of the first degree of murder. Simpson v. State, 56 Ark. 8, 19 S. W. 90. The statute does not apply to degrees of homicide less than murder. Fagg v. State, 50 Ark. 506, 8 S. W. 829. No inquiry can arise as to whether one has been convicted of murder in the first degree when he is indicted only for murder in the second degree. We conclude therefore that it is only on the trial of an indictment for murder in the first degree that the verdict must specify the degree of which the accused is convicted.”

The verdict in the instant case is sufficient to authorize a judgment and sentence for grand larceny. We find no reversible error, -and the judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    Estes v. State.
    Opinion delivered December 9, 1929.

      W. U. McCabe, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   McHaney, J.

This is an appeal from, an order of the court overruling’ appellant’s motion to withdraw a plea of guilty to an indictment for grand larceny and permit him to enter a plea of not guilty instead. This motion was filed and overruled before judgment. 'The plea of guilty was put in by the appellant himself, in open court, which is the only way it can be made. Section 3075, C. & M. Dig. By § 3076 it is provided that: “At any time before judgment the court may permit the plea of guilty to be withdrawn and a plea of not guilty to be substituted.” Construing this statute, this court has many times held that it is within the discretion of the trial court to refuse to permit a defendant to withdraw his plea of guilty and to substitute a plea of not guilty, and that such action will not be reversed by this court unless it clearly appears that its discretion in this regard has been abused. Greene v. State, 88 Ark. 290, 114 S. W. 177; Joiner v. State, 94 Ark. 198, 126 S. W. 723; Duncan v. State, 125 Ark. 4, 187 S. W. 906; Dudney v. State, 136 Ark. 453, 266 S. W. 898; McClain v. State, 165 Ark. 48, 262 S. W. 987.

Did the trial court abuse its discretion in this case? We think not. The record shows that the court explained the nature of the charge in the indictment to appellant, and asked him whether or not he was guilty of the crime of grand larceny as charged in the indictment, “and he stated that he was, whereupon the court explained that the penalty attendant upon such crime is from one to five years in the State Penitentiary, and he, being further asked, with the foregoing information before him, if he still desired to enter his plea of gnilty of the crime of grand larceny,” he answered that he did, and the court accepted his plea.

There is no showing that appellant did not understand the nature of the charge. There were two indictments for larceny — one for stealing the cattle of James and' one for stealing the cattle of Minge. He pleaded guilty to stealing Minge’s cattle. He knew the extent of the punishment provided by law, and admitted that the court fully explained the matter to him.

The record fails to reflect any abuse of discretion of the court in any manner, and the judgment must accordingly be affirmed. It is so ordered.


text:
    United Order of Good Samaritans v. Betts.
    Opinion delivered December 9, 1929.

      A. D. Whitehead, for appellant.

      Sheffield S Coates, for appellee.
   McHaney, J.

This is the second appeal of this case. The opinion on the former appeal may be found in 179 Ark. 203, 14 S. W. (2d) 1108. The case was reversed because of an erroneous instruction given by the trial court which, in effect, nullified a by-law of the order providing that dues should be paid by the 10th of each month, and that, if they were not so paid, the delinquent member should be automatically suspended, and no liability enforced against the order during such suspension.

On a retrial there was ag'ain a verdict and judgment for appellee. For a reversal it is again urged, as in the former appeal, that the evidence is insufficient to support the verdict as to the time of payment of dues, and that no proof of death had been made within sixty days after death of the insured, as required in the by-laws. The evidence on both points is substantially the same in this record as in the other, and the former opinion concludes appellant on both points. We there said: “The testimony was conflicting as to whether the dues had been paid within the time required by the by-laws, and was legally sufficient to support a finding either way on that subject.” On the other point we said: “There was conflicting testimony as to whether the proof of death had been made within sixty days after the death of the insured, as the by-laws of the order required. On behalf of appellee the testimony was to the effect, (1) that proof of death was furnished within the sixty days, and (2) that, within that time, the order denied liability on the certificate: Proof of either of these facts would suffice to meet the requirement in regard to proof of death, and we think the testimony was legally sufficient to support both of them.”

Appellant requested an instruction providing against a ¿recovery if the jury should find no proof of death was made within sixty days. The court modified it by adding, “unless you further find that defendant denied liability on the policy within said sixty days.” It is said that this modification was error. But not so. We specifically so held on the former appeal .of this case. See also Mut. Ben. H. & A. Assn. v. Tilley, 176 Ark. 525, 3 S. W. (2d) 320.

It is finally said that the court erred in admitting the receipt for dues, which did not show on its face what it was for, .and was not dated. Appellee identified the receipt as dues for January. Appellant’s witness Burton identified it as having been issued by her as a receipt for dues, but for a different time. Since both parties agree that it was a receipt for dues, we can see no error in admitting the writing. Since it did not speak for itself as to what dues were being paid, it was proper for each party to testify to its purpose, and for the jury to determine the truth of the matter.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Baker v. State.
    Opinion delivered December 9, 1929.

      W. U. McCabe, for appellant.

      Blal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Butler, J.

The appellant, Don Baker, was tried and convicted of the offense of transporting liquor, and on appeal contends, first, that the evidence was insufficient to warrant the conviction, and second, that the court erred in permitting incompetent and prejudicial testimony to be introduced on the trial.

On the date of the alleged offense the appellant appeared at the jail door in Baxter County, in company with one Leonard Wilks. On the outside, near the door, was the jailer’s son. The jailer, who was just inside the jail door, with his back to the outside, upon hearing a commotion, turned, and saw the appellant in the act of throwing a fruit jar against the jail wall. The jailer testified that the jar had contained whiskey, which he identified by reason of the odor from the liquid spilled upon the wall and ground. The appellant was drunk at the time. He was immediately arrested and placed in jail.

At the trial the appellant testified that he had not carried any whiskey to the jail, and in this he was corroborated by his companion. He accounted for having the fruit jar in his possession in the following manner “I saw a pint jar sitting there by the side of the jail, and reached down to pick it up, and Lloyd (the jailer’s son) grabbed me and knocked it out of my hand just as I picked it up. There was a flat rock there, and it fell on the rook and broke. I didn’t know what was in the jar.” The appellant admitted that he was drunk, but claimed to remember everything that had happened.

The jailer testified, in rebuttal, that he had been going in and out of the jail just before the occurrence, bringing' in wood, and that there was no fruit jar in the locality as testified to by the appellant; that if there had been he could and would have seen it.

This is practically all the material testimony in the case. The explanation of the appellant as to how he got possession of the whiskey, under all the circumstances in the case, was unsatisfactory, and a majority of the court are of the opinion that the jury might have reasonably inferred that he not only had the liquor in his hands, but that he brought it to the jail, and that the evidence, while slight, is sufficient to support the verdict. The testimony, which the appellant contends was incompetent and should have been excluded from the consideration of the jury, was that of the jailer, who testified that at the time of the incident the appellant was drunk. We think this was a circumstance which tended to substantiate the theory of the State. The appellant’s condition of itself showed that he had had contact with liquor, in addition to his handling- the fruit jar by the jail wall. The jury had a right, not only to consider his actions at the time of his arrest, but his condition at the time, in determining whether or not he was guilty of the crime charged.

In view of what we have said, it follows that the judg7 ment must be affirmed.


author: Hart, O. J.,

text:
    London & Lancashire Insurance Company, Ltd., v. Payne.
    Opinion delivered December 16, 1929.

      Powell, SmeadS Knox, for appellant.

      Gus W. Jones, for appellee.
   Hart, O. J.,

(after stating the facts). It is first contended that the decree should be reversed because the proof of loss was not filed within the time prescribed by the policy. The compliance with this provision of the policy was expressly waived by the local agent of the insurance company who issued the policy and delivered it to the insured. The local -agent had authority to- issue fire insurance, write and deliver policies, and collect premiums, and to notify the insurance company of loss. Having been clothed with these powers, he had prima facie authority to waive presentation of proof of loss. National Union Fire Insurance Co. v. Wright, 163 Ark. 42, 257 S. W. 753; Liverpool, London & Globe Ins. Co. v. Payton, 128 Ark. 528, 194 S. W. 503; National Union Fire Ins. Co. v. Crabtree, 151 Ark. 561, 237 S. W. 97; and Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212, 139 S. W. 1114.

It is next insisted that the insurance company was not subject to garnishment in this action, because the money was due by it to Grover C. Payne under the terms of the policy, who was a nonresident of the State at the time garnishment was issued and served upon the insurance company. The insurance company was transacting business in this State, and had complied with the laws thereof permitting foreign insurance companies to do business in the State. This court has held that a debt due from a foreign corporation to a nonresident, who is only constructively served with process, is subject' to garnishment in a State in which the corporation does business, although the debt is not payable in that State, and did not arise out of business transacted therein. Stone v. Drake, 79 Ark. 384, 96 S. W. 197.

In Johnson v. Foster, 69 Ark. 617, 65 S. W. 105, it was held that, by publication of a warning order against a nonresident defendant and service of a writ of garnishment upon a resident who was indebted to the defendant, the court acquired jurisdiction to ascertain the amount due from the defendant to plaintiff, and to adjudge that the money due from the garnishee to defendant should be applied towards the satisfaction of plaintiff’s claim.

In St. Louis Southwestern Ry. Co. v. Vanderburg, 91 Ark. 252, 120 S. W. 993, it was held that the situs of a debt for the purpose of garnishment is where the debtor may be found. It was further held that service of process upon a garnishee creates a lien in favor o'f the plaintiff on the money due from the garnishee to the defendant, and upon constructive service the court may ascertain the amount due from the garnishee to the plaintiff, and subject such money to the satisfaction of the plaintiff’s claim.

Again, in Person v. Williams-Echols Dry Goods Co., 113 Ark. 467, 169 S. W. 223, it was held that the situs of a debt, for purposes of garnishment, is not only at the domicile of the debtor, but in any State in which the gar.mishee may be found, provided the law of that State permits the debtor to- be garnisheed, and provided the court acquires jurisdiction over the garnishee throug’h his voluntary appearance or actual service of process upon him within the State. Power over person of the garnishee confers jurisdiction on the courts of the State where the writ issues. Blackstone v. Miller, 188 U. S. 189, 23 S. Ct. 277; and Harris v. Balk, 198 U. S. 215, 25 S. Ct. 625, 3 Ann. Cas. 1004.

Finally, it is insisted that the decree of the chancery court was erroneous in awarding alimony in a lump sum. It is true that this court has held that it is erroneous to award alimony in a gross sum, and that, in the absence of an agreement between the parties, there should be a judgment for a continuing amount payable at stated periods. Brown v. Brown, 38 Ark. 324; Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; Walker v. Walker, 147 Ark. 376, 227 S. W. 762.

We think, however, that a reasonable construction of the order in the present case is that the naming of the $2,300 was intended as a limitation of the right of the plaintiff to recover anything more from the garnishee than the amount of its indebtedness to the defendant, Grover C. Payne, and that it was also a limitation of the period in which the monthly payments were to continue. The defendant had left the 'State, and the plaintiff probably realized that no further payment could be secured from him. He had been gone from the State for over two years at the time of the rendition of the decree, and had not paid her any sum since he had deserted his wife and their minor children. By the fact of their marriage it became the duty of the defendant to support the plaintiff and their minor children, and this was a continuing duty, notwithstanding the fact that he had willfully deserted and abandoned them and had gone to another State. It was still his duty nnder the law to provide for their support and maintenance, and the court might take that under consideration in fixing a sum for their support and maintenance. The present action was instituted on October 2,1926, and the decree was not entered of record until the 27th day of February, 1929. Thus it will be seen that the entire amount due from the garnishee to the defendant would be consumed at the date of the rendition of the decree. We therefore do not think that the award is erroneous, although it was not in the best form. We think that, reasonably construed, it meant to provide for the payment of the monthly allowance for the support of the plaintiff and the minor children dependent upon the defendant, and that it was an allowance in continuing allotment of sums, payable at regular intervals, and, being such, comes fairly within the principles of law announced in our decisions. Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096; Holt v. Holt, 42 Ark. 495; and Daily v. Daily, 175 Ark. 161, 298 S. W. 1012.

We find no reversible error in the record, and the decree will therefore be affirmed.


author: Hart, C. J.,

text:
    American Bank & Trust Company v. Langston.
    Opinion delivered December 16, 1929.

      W. B. Rhyne, James B. McDonough and Anthony Hall, for appellant.

      Wm. M. Hall, Hill, Fitzhugh <& Brizzolara' and George A. Hall, for appellee.
   Hart, C. J.,

(after stating the facts). The principal question raised by the appeal is the right of priority to the retained percentage fund as between the bank and the surety company, which may be settled as a question of law under the practically undisputed facts. The percentage reserved in the contract by the sewer district out of each monthly estimate served to secure it against any loss it might sustain on account of the nonperformance of the contract, and also served to secure any others who had any rights under the contract. The right of the parties to retain a specified percentage dates from the time the contract was entered into. The right of the bank under its assignment also dates from the execution thereof. The bank, by the assignment to it by Langston of all his rights under1 the contract with the sewer district, acquired only such rights as Langston had, and by its equitable garnishment could only impound in its favor such part of the retained percentage fund as the sewer district has, unaffected by prior liens or equities of other parties. The sewer district made no contract with the bank to pay it any amount it might pay out to Langston to aid him in performing his contract for' the construction of the sewers. The bank was a mere volunteer. It loaned Langston a certain amount of money, and it did not acquire any liens of any kind by loaning money to Langston to be used in the construction of the sewers. On the other hand, the surety company bound itself by the execution of the bond to pay all bills for1 material and labor used in the work. It was obligated to do this, and took an assignment of all the claims for labor and material used in the work when it paid the same. Thus it will be seen that the retained percentage in the contract was not only for the benefit of the sewer district and operated as an equitable assignment of the fund to it for any loss or damage suffered by it in the nonperformance of the contract by Langston, but was for the benefit of any one else who had acquired rights and incurred obligations under said contract and bond executed for its faithful performance. The bank knew that Langston had executed a contract with the sewer district for the construction of the sewer, and it will be deemed to have knowledge of the terms of said contract and the obligation of the surety under the bond, which was required by statute. The rights of these parties had become vested before Langston made any contract with the bank, and could not be divested by any subsequent assignment made by Langston to the bank of his rights under the contract.

The bank knew, when it took the assignment from Langston, that its value depended upon whether or not the contract with the sewer district could be executed by Langston at a profit. The contract of the sewer district with Langston provided for a stipulated percentage to be retained until the completion of the contract. This was not only to protect the district against any claims against the contractor, hut also served to protect the surety company and laborers and materialmen. This is so because the contract expressly provides that Langston is to discharge and pay such claimants, and shall give a surety bond in double the amount of the' cost of construction for the faithful performance of his contract. The bond is conditioned that the principal shall pay all bills for material and labor used in the work. Under the terms of the contract and bond, the district had a right to recover from Langston any amounts it might pay to discharge any legal liability against Langston for the faithful performance of his contract. The surety company was not a volunteer in the premises. Under its bond it became obligated to pay all bills for material and labor used in the work. Having done so, it became subrogated to the rights of the sewer district. The surety company, by the terms of the bond and contract, became obligated to pay the laborers and materialmen, and thus release the contractor from his obligation to them, and to the same extent released the sewer district from all obligations to see that the laborers and materialmen were paid. Having done this, not as a volunteer, but by reason of contract obligations with the sewer district, entered into before the commencement of the work, it was entitled in equity to subrogation to any right of the sewer district arising through the contract by it with Langston for the construction of the sewer, and the bank’s claim, by reason of the assignment, is subordinate to the claim of the surety company. Prairie State Bank v. United States, 164 U. S. 227, 17 S. Ct. 142; Henniggsen v. United States Fidelity & Guaranty Co., 208 U. S. 404, 28 S. Ct. 389; Hardaway v. National Surety Co., 211 U. S. 552, 29 S. Ct. 202; Waco County v. New England Equitable Insurance Co., 88 Ore. 465, 172 Pac. 126; Canton Exchange Bank v. Yazoo County, 144 Miss. 579, 109 So. 1; Lewis v. United States Fidelity & Guaranty Co., 144 Kentucky 425, 138 S. W. 305; National Surety Co. v. Berggren, 126 Minn. 128, 148 N. W. 55; Massachusetts Bonding Co. v. Ripley County Bank, 208 Mo. App. 560, 237 S. W. 182; and Maryland Casualty Co. v. Washington National Bank, 92 Wash. 500, 159 Pac. 689.

That the equity of a surety on a bond given by the contractor, who, by reason of the contractor’s default, has been obliged to pay materialmen and laborers, is superior to that of a bank loaning money to the contractor, secured by the assignments of amounts to become due, has been recognized by this court in Fidelity & Deposit Co. v. Merchants’ & Farmers’ Bank, 120 Ark. 519, 179 S. W. 1019. In that case the court quoted with approval from the case of Prairie State National Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, the following:

“That a stipulation in a building contract for the retention, until the completion of the work, of a certain portion of the consideration, is as much for the indemnity of him who may be guarantor for the performance of the work as for him for whom the wmrk is to be performed; that it raises an equity in the surety in the fund to be created; and that a disregard of such stipulation by the voluntary act of the creditor operates to release the sureties, is amply sustained by authority. ’ ’

These authorities also hold that the surety cannot be denied the right to subrogation in cases like this because it is a paid surety. Subrogation is allowed .because the surety has paid the debt of his principal under his obligation to do so. The question as to what induced the surety to assume the obligation cannot be considered in determining his rig’hts. If he has been compelled under the bond or contract to pay the debt of his principal, he is entitled to’ be subrogated to the rights of the creditor.

It is next insisted that the decree should be reversed because the engineers were not allowed to recover the sum they paid for an assistant engineer during the period of delay in the completion of the contract. The engineers claimed this right under § 30 of the contract. This section provides for an additional compensation to the engineers during the period of time of the delay in the completion of the work at the rate of “$350 per month or fraction thereof, and all expenses incident to the work.” The engineers were paid at the rate of $350 per month for the period of time in which the completion of the work was delayed after the date stipulated in the contract for the completion of it. They were also paid the stipulated percentage for the work that was done by them under the contract up to the date specified for its completion. Their claim, however, is that the decree should be reversed because under the clause, “and all expenses incident to the work, ’ ’ they were entitled to compensation which they paid to an assistant at the rate of $275 per month. We do not agree with them in their construction of the contract. We think that the clause in question means the personal expenses of the engineer in the work. It did not mean that they might employ other engineers to do the work for them, and call this expense incident to the work. They have not shown that tliey were out any personal expenses incident to the work between the date the sewer system was required to be completed under the contract and the date it was completed. Hence the chancellor properly disallowed their claim for additional compensation.

The court was also justified in its finding that the sewer district was entitled to recoyer liquidated damages in the sum of $2,595, and that, on this account, the sewer district only had in its hands, as retained percentage under the contract, the sum of $8,044.64. ’Section 29 of the contract provides that the time of completion is the essence of the contract, and that the board will deduct from the estimate, as liquidated damages only, an amount equal to $15 per day for each day’s delay in completion over the specified time of completion. This was done. The contract price was $66,849'.'60. The contract gave ample time for the construction of the work, and it is clearly ascertainable that the parties intended the sum stipulated to be the measure of damages for breach of the contract by the contractor. The damages were uncertain, and the amount stipulated was not unreasonable. The importance of completing the sewer within the time limit was evident, and the parties had a right, under the circumstances, to agree that $15 per day should be the measure of damages for the delay by the contractor in the performance of the contract. Robins v. Plant, 174 Ark. 639, 297 S. W. 1027, 59 A. L. R. 1128.

It does not make any difference that the bond was not filed as required by statute. Its provisions were as broad as the statute, and expressly provided that the surety shall pay all bills for material and labor used in the construction of the system of sewers; and the proof shows that the amounts paid by the surety company were for amounts for material and labor in the construction work, and in each instance the claimant obtained judgment on an express finding that the claim was for labor performed or material used in the construction of the sewer, and the claim was duly transferred to the surety company before it was paid. This was sufficient. Leslie Lumber & Supply Co. v. Lawrence, 178 Ark. 573, 11 S. W. (2d) 458; Ætna Casualty & Surety Co. v. Big Rock Stone & Material Co., ante p. 1, 20 S. W. (2d) 180.

On the cross-appeal but little need be said. The attorney or agent for the surety company who had charge of settling the claims of materialmen and laborers practically admitted that the claims disallowed by the court were not such claims as were required to be paid by the surety company under its bond and contract with the district. Hence the court properly disallowed them.

The result of our views is that the decree of the chancery court will be affirmed, both on the appeal and the cross-appeal.


author: Smith, J.

text:
    Evans v. Argenta Building & Loan Association.
    Opinion delivered December 16, 1929.

      Jacoway, Miles, Donham •<& Fulk, for appellant.
   Smith, J.

This .suit was brought by the Argenta Building & Loan Association, hereinafter referred to as the association, to foreclose a mortgage on a house and lot in the city of North Little Rock, executed to it by E. A. Hayes and Mary, his wife-. The Enterprise Plumbing Company, hereinafter referred to as the company, intervened and claimed the right to remove certain fixtures which had been placed on the premises under a contract between it and one Gr. W. Massey, who was then in possession of the property under a contract to purchase it.

It was alleged, and testimony was offered tending to show, the fixtures were installed, with the knowledge and consent of the association, under an agreement between the company and Massey, whereby the title to the fixtures should remain in the company'until fully paid for; but the general finding of the court indicates that this contention was not sustained by the testimony. However, the testimony does establish the fact that the fixtures were installed under an agreement between the company and Massey whereby the title thereto was reserved in the company until the fixtures and the cost of installation had been paid; and, it being shown that the agreed purchase price had not been paid, the right to remove the fixtures was claimed. The court found against this contention, and dismissed the complaint as being without equity, and made perpetual the temporary order previously issued, which restrained the removal of any of the fixtures, and this appeal has been duly prosecuted to reverse that decree.

The case of Beatrice Creamery Co. v. Sylvester, 179 Pac. 154, 65 Colo. 569; involved the validity of an agreement between the buyer and seller of an article affixed to real estate, that it should remain personalty, and the case is extensively annotated in 13 A. L. R. 441. In a note to the case the annotator says that “the preponderance of authority is to the effect that, where the removal of the fixtures will not materially injure the premises, the seller thereof retaining title thereto may assert his right as against a prior mortgagee of the realty.” A large number of cases are cited in support of this statement, but we do not review them, as the principles announced accord with the law as declared in previous decisions of this court. Hachmeister v. Power Mfg. Co., 165 Ark. 469, 264 S. W. 976; Anderson v. Southern Realty Co., 176 Ark. 752, 1 S. W. (2d) 27. See also Fears v. Watson, 124 Ark. 341, 187 S. W. 178; Continental Gin Co. v. Clement, 176 Ark. 864, 4 S. W. (2d) 901.

The reasoning of the court in the cases cited sustains the law as stated in the annotator’s note from which we have quoted.

The seller of fixtures, who has retained the title thereto, and has installed them on mortgaged premises under a contract with the mortgagor, may, upon default in payment, remove them; but this right cannot be exercised where the removal of the fixtures would materially injure the premises. This is true for the reason, as pointed out in a number of the cases cited in the annotator’s note supra, that the conditional vendor has no right, by injuring the premises, to impair or diminish the mortgagee’s security.

Here th,e testimony shows that, under the conditional sale whereby the title was reserved, the company installed certain lines of pipe by which pure water might be furnished and sewerage connections afforded, and there was also put in place in the bathroom a “closet combination, consisting of bowl, tank and seat.” The testimony is to the effect that these articles were attached to the floor and walls with screws, and might be removed without material damage to the building or the premises; but the testimony also shows that to remove the pipe would leave holes in the floor and walls of the building, and would require the excavation of the premises adjacent to the house, as the pipe had been placed in the ground. This latter work would disfigure the building and damage it, as well as the ground adjacent to it, and the right to remove the pipe does not exist. We perceive no reason, however, why the closet combination, consisting of the bowl, tank and seat, may not be removed, as their removal will cause no material damage to the property.

The decree of the court below will therefore be modified to the extent of holding that the closet combination may be removed. In other respects it will be affirmed.


text:
    Estes v. State.
    Opinion delivered December 16, 1929.

      Wm. U. McCabe, for appellant.

      Mal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellant was convicted upon his trial under an indictment which charged him with having stolen certain cattle, the property of James Miinge, and for the reversal of the judgment has argued the following assignments of error:

That the 'State failed to prove the venue. But witnesses for the State testified that appellant came “here” (Baxter 'County, where the venue was laid in the indictment) with Earnest McCorMe from Wichita, Kansas, in a truck in which the cattle were later transported to Springfield, Missouri, and was seen ¡by other witnesses in the truck in that county with MclCorkle, and the testimony of the latter establishes the venue. Moreover, Minge' testified that the stolen cattle ran on the range between two bayons in Baxter County.

According to the testimony of MciCorlde, he and appellant and Bill Estes, a brother of appellant, stole the cattle, and sold them, and divided the proceeds of the sale into three equal parts, and it is insisted there is no testimony connecting appellant with the commission of the crime except that of McCorkle, and that there was no sufficient corroboration of that testimony to sustain the conviction. The testimony shows, as has been said, that appellant came with McCorkle into the county in a truck in which the cattle were later transported, and was seen in the truck with McCorkle shortly -before the cattle disappeared, and also directly after McCorkle and Bill Estes returned. Huston Moss testified that he was called as a mechanic to repair the truck at Bill Estes’ home a day or two before the cattle were carried away, and that appellant was present at the time, and very nervous, so much so that witness’ -attention was attracted by that fact, and that appellant inquired every time any one passed who the passer-by was. • It is undisputed also that McCorkle sold the cattle in Springfield, and collected the check which was given in payment for them..

It is insisted that the ownership of the cattle was not proved. But Minge testified that he -saw them in the pens after they had been sold at Springfield, and identified them as his property.

It is insisted that the court erred in excluding the testimony of Ethel Estes, a niece -of appellant, but no objection appears to- have been made or exception saved to this ruling of the court. This witness was called by the prosecuting attorney, and the attempt was made to show that she saw McCorkle give appellant some money in bills, and, -when she denied that she had seen this, or had stated that she had, the prosecuting attorney exhibited to her the minutes of the grand jury, which he asked her to read, and to state if she had n-o-t given such testimony before the grand jury. She then denied that she had stated before the grand jury that she had seen Mc-Corkle give appellant any money. The prosecuting attorney then asked that he be allowed to cross-examine the witness, and the court stated that this was what he had been doing. The prosecuting attorney asked that the witness be held for perjury, and counsel for appellant objected to the statement, whereupon the court said: “The objection will be sustained, and the jury is instructed that the statement by counsel will not (be considered by you, and the testimony of this witness will not be considered by you in any way in arriving at your verdict.” The witness was then excused, and no objection was made to the ruling of the court, which was obviously intended as a ruling favorable to« appellant, the clear implication being that, in the court’s opinion, no testimony had been given by the witness which was adverse to appellant, and no request was made that her statement that she had not seen McCorkle give appellant money be allowed to remain in the record. Brown v. State, 168 Ark. 433, 270 S. W. 537.

Objection was made to a certain argument of the prosecuting attorney; but, when the objection was made, the court admonished the jury as follows: “ Any statements made by counsel is not evidence in the case, and in this case you will not be governed by any statement of counsel not based on the evidence. "When you retire to consider of your verdict, you will base your verdict on the testimony of the witnesses as given from the witness stand and upon the law as given you by the court, and upon that, and that alone. What counsel say in the case is not evidence, and you will not SO' consider it. ’ ’

If the argument was improper — which we do not decide — this admonition sufficed to remove any prejudice which might otherwise have resulted from it.

A motion for a continuance was filed to obtain the presence and testimony of witnesses which would tend to establish the defense of an alibi which appellant interposed. The substance of the testimony of these witnesses was set out, and, while its materiality may be conceded, the motion did not recite, as the statute requires (§§ 1270 and 3130, C. & M. Digest), that the appellant believed this testimony to be true. There was therefore no error in overruling it, as it did not conform to the statute. Other witnesses gave testimony which, had it been accepted as true by the jury, would have established the defense of an alibi, but the truth of this testimony was, of course, a question for the jury, and was evidently disregarded, and not accepted as true.

Upon a consideration of the record in its entirety no error appears, and the judgment must be affirmed. It is so ordered.


author: Humphreys, J.

text:
    Mooring v. Wardell & Whitton Road Maintenance District No. 2.
    Opinion delivered December 16, 1929.

      Chas. E. Sullenger, for appellant.

      A. F. Barham and Horace Sloau, for appellee.
   Humphreys, J.

This suit was brought by appellant, a landowner and taxpayer in the Warded & Whitton Road Maintenance District No. 2, in Mississippi County, Arkansas, for herself and ad other landowners and taxpayers therein, against appellees, attacking the vaddity of the district upon the alleged ground that the organization thereof was beyond the jurisdiction of the county court, because organized under the general road maintenance district law, act No. 69,1919 (Crawford & Moses’ Digest, §§ 5463-88), which, it was alleged, had been repealed by special act No. 238, 1920, creating the Warded & Whitton Road Improvement District No. 2, embracing the same landsand that the latter' act itself contained a provision to the effect that the district should not cease when created, but that the district and the powers of the commissioners should continue for the purpose of continuously maintaining the improvement. The prayer of the complaint was that the assessment of benefits and taxes levied thereon be canceled as a cloud upon the title to her real estate within the district, and that the commissioners of the district be permanently enjoined from exercising any powers as commissioners under their appointment.

Appellees filed an answer, denying that the effect of act No. 238, Ex. Sess. 1920, creating Warded & Whitton Road Improvement District No. 2, was to make act No. 69,1919 ('C'rawford &Moses’ Digest, §§ 5463-88), inapplicable to said district, or that the effect of the latter act was to repeal the provisions of act ¡No. 69,1919, so far as they might relate to the Warded & Whitton Road Improvement District No. 2, and that it was not within the jurisdiction of the county court to organize the Warded & Whitton Road Maintenance District No. 2 under the provisions of act No. 69,1919 (Crawford & Moses’ Digest, §§ 5463-88).

Further answering, appellees stated, in substance, that the maintenance clause in act No. 238, creating the original special district, was insufficient to make the necessary repairs and maintain the improvement, and that the commissioners had passed resolutions relinquishing all authority to make repairs or maintain the improvement under the special act creating the district, and had employed attorneys to organize the maintenance district under act No. 69, 1919, for repairing and maintaining the original improvement.

Appellant filed a demurrer to the answer, which was overruled by the court. She refused to plead further, and announced that she would stand upon her complaint and demurrer to the answer, whereupon the court dismissed her complaint for the want of equity, from which is this appeal.

The question presented by the appeal is whether the maintenance clause in special act No. 238, 1920, creating the original Wardell & Whitton Road Improvement District No. 2, repealed the operation of the general maintenance district law enacted in 1919 by the Legislature. The act referred to is act No. 69', 1919, and appears in Crawford & Moses ’ Digest as §§ 5463-88, inclusive. Act No. 238, Ex. Sess. 1920, did not expressly repeal all or any part of act No. 69,1919, and we are unable to discover an invincible repugnancy between the two acts. The purpose of the maintenance clause in act No. 238, Ex. Sess. 1920, was to authorize the commissioners to keep the road as completed in good repair; whereas the purpose of act No. 69, 1919, was to authorize the organization of a road maintenance district, not only to keep' the road as completed in good repair, but to improve the character of the road, if necessary. For example, if the original road was a completed dirt road, by proceeding under act No. 69,1919, the district might be organized to surface the original road with gravel. Such was the construction placed upon act No. 69, 1919, in the case of Cowan v. Thompson, 178 Ark. 44, 9 S. W. (2d) 790. Since the authority conferred by act No. 69, 1919, is broader than that conferred under the maintenance clause of act 238, Ex. Sess. 1920, the two acts are not irreconcilably inconsistent, and either mig’ht be invoked, dependent upon the wishes of the property owners therein as to the character of repairs to be made. The Legislature clearly did not intend to substitute the latter act for the first, else it would not have- limited the repairs which might be made under the latter act to keeping and maintaining the improvement in its completed condition. In arguing that the latter act repealed the first by implication, it is said otherwise two boards would exist exercising the same powers and performing the same duties, and both levying the same assessment of benefits for the same purpose. Such a conflict in jurisdiction will not result. Both having jurisdiction, the first assuming same will retain it. No such conflict has arisen in the instant case. The demurrer to the answer concedes that the commissioners appointed under act 238, 1920, are not attempting to function, (but, on the contrary, assisted in organizing the district, now attacked, for the purpose of repairing and maintaining' the original road. The maintenance clause in act 238, Ex. Sess. 1920, was clearly an auxiliary and cumulative remedy extended to property owners to maintain the road in its completed condition if they did not desire to improve the character of the original improvement. The act itself did not extend exclusive jurisdiction to the commissioners to make or maintain the repairs on the original road. Act 69, 1919, applies expressly to special road improvement districts, whether previously or thereafter created. The act does not limit its operation to districts having no power of their own to repair the road. It refers to all special act road improvement districts alike.

No error appearing, the decree is affirmed.


text:
    Person v. Cogbill.
    Opinion delivered December 16, 1929.

      T. E. Lines, for appellant.

      J. G. Brookfield, ior appellee.
   Kirby, J.

Appellee brought this suit against appellant to recover taxes paid by him on lands of appellant, under an alleged express promise of the appellant to repay the amount of the taxes, and to enforce the State’s lien for taxes against the lands upon which the taxes were paid, and from the judgment in his favor the appeal is prosecuted.

It appears that appellee had purchased a tract of land from the Cross County Investment Company, containing several hundred acres, of which he sold and conveyed 80 acres to the appellant. The entire tract was comprised mainly of fractional units, and the 80 acres sold were described by metes and bounds and of a very irregular shape. The 80-acre tract of land was assessed with the entire tract at the time of the sale to appellant, and continued to be so assessed and paid on by the appellee.

Appellee alleged in the complaint that, by virtue of an express agreement between the parties, he was to pay the taxes until such time as appellant should have the land surveyed and properly assessed as his own.

Any such agreement was denied by appellant, who alleged that he protested against the payment of taxes on his lands by appellee, and pleaded laches and the three-year and seven-year statutes of limitations. He also alleged that, after ineffectual efforts to have this 80-acre tract of land separately assessed, there appeared on the assessment records an 80-acre tract in the vicinity of his land, which was assessed to him, and upon which he paid the taxes for several years, until he discovered that this tract was not the one he had purchased, and belonged to appellee.

. Appellee had purchased the larger tract of land from the Cross County Investment Company in the first instance, and, before payment therefor, had then sold and conveyed the 80-acre tract, a part of such purchase, to appellant, the deed being made from the investment company, himself and Brown, upon appellant’s paying $400 in cash and the execution of a mortgage to secure the balance, which later was paid by (borrowing money upon a mortgage to a third party as security.

Appellee testified in.a general way that he had paid the taxes on lands sold to appellant since 1910, but admitted that he had no special agreement with Person that he should refund the money or pay it back. Appellant denied having requested appellee, Cogbill, to pay the taxes or having made any agreement to reimburse him therefor. It also appears that appellant had refused to repay the taxes upon demand made therefor when his land was taken off and separated from the land of appellee, said he was not going to pay any more taxes until his land was separately assessed, which was about three years after the purchase of the land, and the statement was not denied by appellee.

Appellee, after alleging that appellant was the owner of the land and bound to repay the taxes advanced by him under express agreement, amended his complaint to allege the land was. unpaid for, and other lands had been conveyed to appellant in lieu thereof, and that he himself was the owner of the lands in question, and also claimed title thereto by adverse possession and payment of taxes.

Appellant insists that the finding and decree of the chancellor are contrary to the preponderance of the testimony, and his contention must be sustained. Appellee failed to bring himself within the provisions of the statute, § 10053, C. & M. Digest, there being no substantial testimony conducing to show that he paid the taxes on appellant’s lands in the capacity of an agent or attorney, etc.; he does not even claim to have done so, and he was not entitled to enforce a lien for any payment of taxes thereunder. N. Y. Life Ins. Co. v. Nichol, 170 Ark. 791, 281 S. W. 21; Belleclair Planting Co. v. Hall, 125 Ark. 203, 188 S. W. 574. Appellee was but a stranger and a volunteer in the payment of taxes on the lands in the legal sense, since he had no interest in the lands to protect by such payment. N. Y. Life Ins. Co. v. Nichol, supra.

The testimony, as already said, does not support the finding of the chancellor that there was an express promise on the part of appellant to refund the taxes advanced and paid on his lands by appellee, the preponderance of the evidence being rather contrary thereto, in the opinion of this court, and thé chancellor erred in so holding.

Certainly appellee, who had no interest in the land to protect, could not pay the taxes upon appellant’s land for 15 years, for much’ of the time contrary to his express protest, and still expect to recover the amount so' paid and enforce the State’s lien for the collection thereof, and in no event could he have recovered, the statute of limitations being pleaded, more than the amount of the taxes for three years, had the evidence supported his contention of an express promise by appellant to repay the taxes.

It follows that the chancellor erred in holding otherwise, and the decree is reversed, and cause dismissed.


text:
    Carroll v. Waddell.
    Opinion delivered December 16, 1929.

      Oscar Barnett, for appellant.

      D. E. Waddell and D. M. Halbert, for appellee.
   McHaney, J.

Appellee Waddell sued appellant and obtained a writ of garnishment before judgment on the Farmers’ & Merchants’ Bank of Malvern in the justice court of appellee Caldwell, in which suit appellee Halbert acted as Waddell’s attorney. There was a judgment rendered against appellant in said suit, from which no appeal was prosecuted. Instead of appealing the case on account of .feeling himself aggrieved because of such judgment, he brought suit in the circuit court against Waddell, the justice of the peace, 'Caldwell, and the attorney, Halbert, charging that a false affidavit was made to obtain the writ of garnishment or attachment against the bank, and that it was willfully, Wrongfully .and maliciously sued out. Other matters were set out -in the complaint, but we deem it unnecessary to state them. The circuit court sustained a demurrer to the complaint, hence this appeal.

The court was correct. Appellant’s remedy, if he was dissatisfied with the judgment of the justice of the peace, was to appeal to the circuit court. By failing to perfect an appeal and try the case out de novo in the •circuit court, he must be held to have acquiesced in such judgment. Here the justice had jurisdiction of the subject-matter and the parties, and it is well settled that the judgment of a justice of the peace within his jurisdiction is as conclusive as the .judgment of a superior court, and is ordinarily impervious to collateral attack. A justice of the peace has the same right to determine every question that arises in a cause pending in his court as does a superior court, under like circumstances; and, if he commits error on his conclusions of law, the judgments of his court are no more open to attack collaterally than those of the circuit court. Carolan v. Carolan, 47 Ark. 511, 2 S. W. 105; Webster v. Darnel, 47 Ark. 131, 14 S. W. 550; O. P. Dixon Ptg. & Sta. Co. v. Plank, 144 Ark. 485, 223 S. W. 36. This proceeding constituted a collateral attack on the judgment of the justice of the peace, and could not be maintained. .No error was committed in refusing to permit appellant to amend, as no cause of action could have been stated.

We find no error, and the judgment is accordingly affirmed.


text:
    McCord v. Farmers' Bank of Pittsboro.
    Opinion delivered December 16, 1929.

      Thomas W. Hardy, for appellant.

      Flotvers, Brown Hester, for appellee.
   Butler, J.

The appellee, Farmers’ Bank of Pittsboro, brought suit in the Ouachita Circuit Court against the defendant on a promissory note made payable to it or bearer, at the Bank of Derma, Mississippi, for $1,130.84, with interest at eight per cent, from maturity until paid, signed by the appellants, J. E. McCord and Henry Denton. The defense was that the signatures were procured to the note by reason of false*representations, and that there was no indebtedness due plaintiff (appellee) because of said note.

Testimony was introduced on the part of both the plaintiff and the defendant, and there was a verdict in favor of the plaintiff for the sum represented by the said note with the accrued interest. After the testimony had been introduced, the court permitted the plaintiff to amend by joining N. R. Lamar as a party plaintiff to the suit. This action of the court is assigned by the appellants as error.

It was established by the testimony that the Farmers ’ Bank of Pittsboro was a banking institution organized under the laws of the 'State of Mississippi and doing business in that State; that at the time of the filing of the suit it had become insolvent, and was in the course of liquidation; that its affairs were being handled for the benefit of its stockholders and depositors by N. R. Lamar as “liquidating agent” of the State Banking Department of the State of Mississippi. It was shown by the evidence in the case that the Farmers’ Bank of Pittsboro, while insolvent, was still a legal entity, and, not having- forfeited or surrendered its charter under the laws of the State of Mississippi, might bring suits in its own name when such became necessary in the course of its liquidation. Section 3854 of Hemingway’s 1927 Miss. Code. The banking laws of Mississippi further provide that, in the case of insolvent banks being taken over and liquidated through the State Banking Depart-meat, the Banking Department may act through its liquidating agent, and suits 'for the collection of the assets of the insolvent bank may be brought either in the name of the bank or by such officer. Section 3854, Hemingway’s Code, supra.

By § 36 of act 250 of the Acts of the Ceneral Assembly of Arkansas, 1927, all corporations, whether they expired by their own limitations or are otherwise dissolved, may nevertheless be continued for a term of three years for the purpose of prosecuting or defending suits. The appellee bank was a going concern at the time of the execution of the note sued on, and thereafter, on October 4, 1923, ceased to do a banking business, and its property and assets were taken over by the State Banking Department for the purpose of liquidation. N. R. Lamar was appointed “liquidating agent,” as provided by the laws of the State of Mississippi, and this action was begun on March 9, 1926. Therefore the action was properly brought in the name of the Farmers’ Bank of Pittsboro under the provisions of the statutes above named. N. R. Lamar, the liquidating ageni, was the representative of the depositors and other creditors of the Farmers’ Bank of Pittsboro, and under § 1239 of Crawford & Moses’ Digest it was proper, by way of amendment, to add his name as party plaintiff because of his interest in the subject-matter.

The appellants have cited a number of cases to the effect that an amendment substituting another than the original plaintiff should not have been permitted. However, there was not a substitution, but an addition, and, as the original plaintiff was a proper party, the suit as originally begun was not a nullity, and therefore the cases cited have no application here. We are of the opinion that the amendment was not necessary, but it has not, and could not have, prejudiced the defendant in any way or altered any substantial right he might have had.

Finding no error, the judgment is affirmed.


author: Hart, J.,

text:
    Thomas v. Spires.
    Opinion delivered December 23, 1929.

      Fred A. Isgrig, for appellant.

      Taylor Roberts, for appellee.
   Hart, J.,

(after stating the facts). The record shows that Gilbert Lee, Jr., was the owner of the land, and that he executed a warranty deed to the land to Freed G. Spires. It is true that the record also shows that the land was sold in 1922 for the nonpayment of taxes for the year 1921, but this sale was void because the records in the county clerk’s office do not show that the result of the school election for the school district in which the land was situated was certified as required by § 8955 of Crawford & Moses ’ Digest, 'and the results of the election certified by the county board of election as required by § 8878 of Crawford & Moses’ Digest. This rendered the sale void. Worthen v. Badgett, 32 Ark. 496, and Alexander v. Capps, 100 Ark. 488, 140 S. W. 722.

The proper proof was made 'by L. W. Adams-, deputy county clerk, who said that he had been employed in that office for about fourteen years, and was familiar with the land and the tax records of the office for the years 1921 and 1922. He testified that he had made a thorough examination of the records in the office, and knew that the delinquent list had not been posted as required by the statute, and that there had been no certificate showing that a school tax had been voted in the school district in which the land was situated, and that the record showed that the land was sold for the nonpayment of such school taxes as well as for the other State and county taxes due on it. This was sufficient. "While matters of record must be proved by exemplification of the record, negative matter may be proved by those familiar with the record and papers. Hendry v. Willis, 33 Ark. 833.

But it is insisted that the plaintiff only put the defendants on notice that the tax forfeiture ivas for the sale under taxes for the year 1921. This does not make any difference. The evidence of the deputy county clerk showed that there had only been a -sale of the lands in 1922 for the nonpayment of the taxes of 1921. The defendants did not claim any surprise, and the trial court had a right to treat the pleadings as amended to conform to the proof, in the absence of objections made at the time by defendants on the ground of surprise. Bennett v. Snyder, 147 Ark. 20-6, 227 S. W. 402.

Thus we see that the record shows that the paper title to the lands in controversy is in the plaintiff, and that he i-s entitled to the possession of the lands, unless he is barred of relief by the facts proved on the plea of estoppel in pais by the defendants. In this connection it may be stated that the plaintiff, as grantee of Gilbert Lee, Jr., the original owner of the land, is his privy in estate and must fail if, under the facts proved, Gilbert Lee would fail if he were a party plaintiff. Ripley v. Kinard, 155 Ark. 172, 244 S. W. 3, and Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30.

As a general rule an estoppel in pais may be set up in actions at law as well as in suits in equity. 21 C. J. 1118, § 121, and Pomeroy’s' Equity Juris. (3 ed.), vol. 2, § 801; Dickerson v. Colgrove, 100 U. S. 578, and Barnard v. German-American Seminary, 49 Mich. 444, 13 N. W. 811. In that case the Supreme Court of Michigan, speaking through Mr. Justice Cooley, held that estoppels in pais are called equitable estoppels because they arise upon facts which render their application, in the protection of rights, equitable and just, and that they are just as readily and fully recognized in courts of law as in courts of equity.

The principle invoked is that a party who, by his acts, declarations or admissions, either deliberately or with willful disregard of the interests of another, induces him to conduct or dealings which he would not have otherwise entered upon is estopped to assert his rights after-wards to the injury of the party so misled. Jowers v. Phelps, 33 Ark. 465, and Merchants’ & Planters’ Bank v. Citizens’ Bank, 175 Ark. 417, 299 S. W. 753.

Many other cases laying down the principle might be cited, but we do not deem such action necessary in the present case. The underlying principle is that the conduct of the party misleading the other involves fraud, and the remedy is available for the protection of the party induced to act to his injury by reason of the fraudulent conduct and declarations of the other.

If it be conceded that the conduct and declarations of Gilbert Lee, Jr., to G. W. Thomas, as shown by the evidence for the defendants, were sufficient to operate as an equitable estoppel or an estoppel in pais, still the judgment must be affirmed. The reason is that the case was tried before the court sitting as a jury, and its finding must be upheld, for there is* evidence of a substantial nature to support it. The evidence of Gilbert Lee was of such a substantial character as to warrant the court in finding- that he was not estopped from asserting title to the land. It is true that on cross-examination he testified that he did not remember whether or not he had told Thomas that he was not going to redeem the land, and that he conld donate it, still in other portions of his-testimony he said that he told Thomas that, if he could get anybody to redeem the land, he would keep it. In his direct examination he denied having any talk with Thomas about donating the land. He testified that he allowed Thomas to move on the land because he thought anybody had a right to donate it, and that he could not help himself. Again, he stated that the reason he moved off the land was that the house he lived in had burned down, and stated several times that it was his intention to keep the land if he could get any one to redeem it for him. Thus it will be seen that the court was justified in finding that the admissions he made to Thomas were made in ignorance of his own rights, because the record showed that the forfeiture for the nonpayment of taxes and the sale thereunder were void. It will be remembered that Lee testified that he permitted Thomas to move on the land because he thought he could not prevent it, and that any one had a right to donate the land. Under these circumstances the court was justified in finding that whatever declarations he made to Thomas were not made with the full knowledge of his own rights, and that he was not estopped to claim title to the land.

No other issue is raised by the appeal. The parties agreed that the claim of the plaintiff for rent and damages should be offset by the claim of defendants for taxes and improvements.

Therefore, the judgment will be affirmed.