text:
    Meadors v. State.
    Opinion delivered July 12, 1926.
    1. Corporations — proof of existence. — Where, in a larceny case, a corporation is alleged to he the Owner of stolen-property; proof of its de facto existence is sufficient.
    2. Corporations. — Where a corporation is alleged to be the owner = of stolen property, an employee’s testimony that, he knew it. was .. a corporation was admissible to prove its corporate character.,- as the-fact of .corporate existence may be proved, by .-reputation or by the oral testimony of a witness who has knowledge of the fact.
    3. Larceny — sufficiency of evidence. — Evidence held sufficient to support a conviction of grand larceny.
    4. - Criminal law- — questions for JURY&wkey;The credibility of witnesses and the weight of their testimony, are-for the jury.
    5. - Larceny — instruction.—An instruction to find -the defendant -guilty, if he “did.unlawfully and.feloniously steal, take,and carry , away,” etc., was not defective in failing to add “with .the intent to steal.”
    6. Criminal law — repetition of- instructions. — Refusal of an instruction covered by one given was not error.
    7. Criminal law — instruction as to circumstantial evidence.— Refusal of an instruction on circumstantial evidence was' not error where the State did not rely upon,evidence of that character for conviction.

      Appeal from .Sebastian Circuit Court, Sebastian District; Jo hn E. Tatum, Judge;
    affirmed.

      Roy Gean, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.

The appellant was indicted in the Sebastian Circuit Court in two counts for the crimes of burglary and grand larceny. He was tried on both counts, and convicted of the crime of grand larceny and sentenced to' one year’s imprisonment in the.State Penitentiary. Prom that judgment he appeals. We will dispose of the assignments of error for reversal in the order in which they are presented by counsel for the appellant.

The second count of the indictment charged that the money alleged to have been stolen was the property of the Gibson Oil Company, a corporation. Leon Johnson testified that he was employed at the filling station which was operated by the Gibson Oil Company; that the Gibson Oil Company is a corporation; that the appellant took the money belonging to thé Gibson Oil Company out of the cash drawer, where it was kept at the Speedway. Pilling Station in Port Smith. .¡Counsel for appellant contends that the above testimony was not competent to prove that the Gibson Oil Company is a corporation. In the case of Brown v. State, 108 Ark. 336, 339, 157 S. W. 934, we held, quoting from 3 Bishop’s New Criminal Procedure, § 72, that “if a corporation is alleged as owner, only its de facto existence need be shown in evidence.” See 7 R. C. L., p. 103, paragraph 79.

We have held in several cases that the existence of a corporation may be proved by general reputation. See Fleener v. State, 58 Ark. 98, 23 S. W. 1; Pearrow v. State, 146 Ark. 182, 225 S. W. 311; Kelly v. Stearns Pub. & Novelty Co., 147 Ark. 383, 227 S. W. 609. These cases do not hold that the existence of a corporation may not be proved by oral testimony of a witness who has knowledge of the fact. Here the de facto existence of the corporation was proved by the testimony of Leon Johnson, to the effect that he knew that the Gibson Oil Company was a corporation, and that it operated the filling station and owned the money which appellant took. In 3 Ency. of Evidence, p. 604, the rule is stated as follows: “In criminal prosecutions for offenses charged to have been committed.upon the property of a corporation, the fact of corporate existence may be proved by reputation, or by the oral testimony of a witness who has knowledge of the fact.” See also Reid v. State, 15 Ohio, 217; Norton v. State, 74 Ind. 337.

Counsel urge that .the testimony was not' sufficient to sustain the verdict. Leon Johnson, who' was operating the filling station, testified-in substance that, after opening the filling station about 6:40 or 6:45 a. ;m., he put the change in the money drawer, and had his back to . the door when'he opened same, looked around, and there was a fellow standing there. He came in and drew his gun,' and witness realized what was up. He faced witness, and told him to put his hand's up, and kept his mouth closed tight, and nodded to witness two or three tinies. He then'said to witness', “Stand still,” when witness discovered his gold tooth, his light eyelashes arid blue eyes. These attracted witness’attention. The gold tooth was in his upper jaw on the right side of' his mouth.' He had a cap on, and it looked as if he had taken the stopper to an ink bottle and dotted it around under his .eyes. Witness was in a position to see the person closely.' A'big bright light was 'hanging in the' center of the station. T,he witness was then asked, “Is this the man. here?” (indicating the defendant), and answered, “Yes sir.” He was asked, “You are positive .that he is the man?” and answered “I would be safe'in saying positive — could not be .mistaken. ”

•Several witnesses for the appellant testified to the effect that the appellant was seen at certain places ón Friday morning, which would have -made it physically impossible for him to have been present arid to have robbed the filling station operated by Leon Johnson in Fort Smith at 7 or 7:02 o’clock a. m., that morning, as testified to by Leon Johnson. The credibility of ail these witnesses and the weight of their testimony was for the jury. Certainly the testimony of the witness Johnson for the State was sufficient to justify the .jury, if they credited his testimony, which they did, in returning a verdict of guilty against the appellant. This testimony proving the, identification of. the appellant was something more than mere suspicion or conjecture. It was the positive statement that Johnson recognized the appellant, and he stated the facts establishing thé identification.

The court gave the following instruction: “The court further instructs the jury, if you believe from the evidence, beyond a reasonable doubt, that the defendant Bob Meadors, in the district, county and State aforesaid, $13.36 gold, silver or paper money, the property 'of the Gibson Oil Company, a corporation, unlawfully and feloniously did steal, take and carry away, then you should convict the defendant of grand larceny; otherwise you should acquit him on this charge. ’ ’ The appellant interposed a general objection to this instruction. Counsel insist that' the instruction is inherently defective because .it does not contain the phrase, “with the intent to steal,” after the words “unlawfully and feloniously did steal, take and carry away.” It will be observed that the court told the jury, in the above instruction, that it was necessary for them to find from the evidence, beyond a reasonable doubt, that the appellant did “unlawfully and feloniously steal, take and carry away,” etc. It is wholly unnecessary, after the use of these words, for the court to have added the words “with the intent to steal.” - To have added them would have been useless redundancy, because, if the appellant “feloniously did steal, take and carry away” the money, he necessarily did so with the animo furandi essential to constitute larceny. See Cox v. State, 72 Ark. 544, 81 Ark. 1056.

The appellant prayed the court to instruct the jury as follows: “You are instructed that, while the burden of showing an alibi is on the defendant, but if, on the whole case, the testimony raises a reasonable doubt that the defendant was present when the crime was committed, lie should be acquitted. The burden in the whole case is upon the State to prove, beyond a reasonable doubt, that the defendant was present and committed the offense as alleged in the indictment. ’ ’ The subject-matter of this instruction was fully covered by instruction No. 6, which the court gave in the language of an instruction approved by this court on the defense of alibi in Ware v. State, 59 Ark. 379, 386, 392, 27 S. W. 485, and many subsequent cases.

The appellant prayed the court to instruct the jury as follows: “You are instructed as a matter of law that, when a conviction for a criminal offense is sought upon circumstantial evidence alone, the prosecution must not only show beyond a reasonable doubt alleged facts and circumstances are true, but they must show by such facts and circumstances as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the defendant, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant.” The court refused this prayer, and" the appellant duly excepted to that ruling. The ruling of the court was correct. The State did not. depend for conviction upon circumstantial evidence, and the instruction really had no place in the case. Furthermore, the court fully covered the subject-matter of the rejected prayer by its instruction No. 7.

"We have already disposed of the contention that the testimony was not sufficient to sustain the verdict and that the court should have granted the appellee’s prayer for a peremptory instruction at the conclusion of the testimony in the whole case.

The court gave instruction No. 9 in regard to the testimony of the defendant and the weight to be "given his testimony. This instruction followed the language that has been approved by this court in numerous cases since Vaughan v. State, 58 Ark. 353, 24 S. W. 885, where we held that the giving of such instruction, although not to "be approved as a precedent, was nevertheless not reversible error. An instruction in this form has been brought before this court in many subsequent cases, but we have never changed the ruling in Vaughan v. State supra.

The record presents no reversible error, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Reed v. Paving District No. 2 of Jefferson County.
    Opinion delivered July 12, 1926.
    1. Highways — improvement district — invasion op county court’s jurisdiction. — Acts 1923, p. 84, as amended by Acts 1923, p. 538, authorizing certain county courts to create suburban improvement districts, on petition of a majority of property owners in the territory adjacent to the proposed improvement, held not invalid as invading the jurisdiction of the county court, in that the owners might impose public roads on the county court, since it might refuse to' create a district if the road to be improved was not already a highway.
    2. Highways — petition—withdrawal op signature. — -In proceedings for establishment of an improvement district for grading and paving a highway, it was not error to exclude a letter attempting to withdraw the writer’s name from the petition for the improvement after it was filed, since this signature could not be withdrawn without leave of court-.
    3. Highways — petition—right to withdraw signature. — Under Acts 1923, pp. 84, 538, providing for creation of suburban improvement districts, and that “any number of identical petitions may be circulated and identical petitions with identical names may be filed at any time until the county court acts,” held not to authorize a petitioner to withdraw his signature after the petition had been filed but before the court acted.
    4. Highways — judgment affirming existence of district — validity. — A judgment of the circuit court affirming a judgment of the county court establishing an improvement district for grading and paving a highway, which recites “that such district is validly organized in all respects as is provided by law”, is sufficient.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      Rowell S Alexander, for appellant,

      A. F. Triplett, for appellee.
   Wood, J.

On March 3,1926, certain persons claiming to be the owners of a majority in value of the real property described in the petition, filed the same in the Jefferson. County Court, praying that the court lay off the territory therein described into an improvement district under the provisions of act No. 126 of the Acts of the General Assembly of 1923, approved February 15, 1923, and the acts amendatory thereof, for the purpose of grading and paving with concrete, asphalt, or such other suitable paving material as the commissioners of said district may determine, including- the construction of all necessary concrete or other suitable gutters, culverts and drains. The street and highway to be improved' is described in the petition as follows’:

‘ ‘ Twenty-fifth Avenue, in the said city of Pine Bluff, extended west from the west line of Mulberry Street to a line drawn from the northwest corner of block 59 of Austin & Taylor’s Addition to the city of Pine Bluff to the southwest comer of block 56 in said addition, said extension being itself commonly known and called Twenty-fifth Avenue, from the west line of Mulberry Street to the east line of Hazel Street.”

They asked that the work be done according to the plans and specifications adopted by the commissioners of the district, and that the cost of the improvement be assessed upon the real property within the district; that the- district be designated as Paving District No. 2’ of Jefferson 'County, and that the same embrace the property described in the petition, which the petitioners alleged is adjacent to, and no part thereof within, the city of Pine Bluff.

The county court entered an order noting the filing of the petition, and set March 22, 1926, for its hearing, and directed the clerk of the court to give notice to all persons interested, who might wish to be heard upon the question of the creation of the district, to appear on that day. On the day set for the hearing, certain persons, in person and by their attorney, appeared, and, at their instance, the hearing on the petition was reset for March 29, 1926. On March 29, 1926, certain persons, through their attorneys, filed a remonstrance against the creation of the district, setting up, among 'other things, that they already had a good street; that the property was not of sufficient value, and that the creation of the district would be confiscatory on the owners of the property therein; that the district would cost more than it would benefit the property; that the property was already in a sewer district, and that this would increase the tax on the property; that the property was mostly vacant, and there was no sale for same, and that, on account of the conditions, they requested the court not to grant the petition. It was further alleged in the remonstrance that the act under which it was proposed to create the district was unconstitutional and void, both under the State and Federal Constitutions. Among others signing this counter-petition or remonstrance was O. "W. Clark. O. W. Clark’s name also appeared on the original petition filed March 3, 1926. The clerk of the county court certified that the petition in remonstrance of the creation of the district was filed before the hearing in the county court at which the original petition was taken up and granted by the court. The order of the county court creating the district recites that all the requirements of the law necessary to give the court jurisdiction had been complied with, as to the filing of the petition, the fact that it contained a majority in value of the owners of the territory embraced therein, and that it was wholly adjacent to, and no part of, the city of Pine Bluff, and that no part of the territory embraced therein was included within the corporate limits of any town or city; that the city of Pine Bluff had a population of more than 10,000 inhabitants and Jefferson County more, than 60,000 inhabitants, according to the last Federal census; that notice had been given as prescribed by law of the time of the filing and of the time for the -hearing on the petition.

The court’s order recited that “the persons signing said petition constitute a majority in value of the owners of real property in the proposed district, as shown by the latest county assessment records for general taxes. ’ ’ The court thereupon granted the petition, and created the district as prayed for therein, appointed the commissioners, and directed that the improvement be done according to the plans and specifications adopted by them, and that the cost of such improvement be assessed and charged against the real property in the district. The remonstrants excepted, and prayed an appeal to the circuit court, which was granted. The circuit court heard the cause upon the transcript of the appeal and the testimony of R. H. Williams, E. Gr. Weems and Exhibit A to his testimony, John Mason and L. T. Sallee, from which the court found that the petition for the formation of the district contained a majority in value of the owners of real property situated therein, as shown by the last county assessment, and that the district had been in all respects validly organized, and entered its judgment reciting that the s.aid order of the county court establishing and laying off the district be and the same is hereby affirmed, and directed the clerk to certify a copy of the judgment to the county court. Two of the property owners and remonstrants excepted to the judgment of the court, and duly prosecute this appeal.

The constitutionality of the act and amendments thereto under which the district was created has been passed upon in the recent case of Newton v. Altheimer, 170 Ark. 366, 280 S. W. 611, where we said: “The statute authorizes the county court to create suburban improvement districts on petition of a majority of the owners of property in the territory adjacent to the proposed improvement. The authority relates.to different kinds of improvements, among others ‘grading, drainage, paving, curbing and guttering streets and highways, ’ and there is no authority for formation of a district for the improvement unless it is a public highway * * * The statute., for this reason, does not constitute an invasion of the jurisdiction' of. the county court, and the validity of the statute in this respect is ruled by our decision in the case of Sallee v. Dalton, 138 Ark. 549, and numerous other cases following it.”

There is no contention in the case at bar that the order creating the. district was to improve an avenue or street that was not already a public highway. So the question could not arise in this case as to the invasion by the act of the jurisdiction of the county court over public highways. The first sections of act No. 126 and of act No. 645, amendatory thereof, provide for the filing of petitions for the creation of improvement districts in 'territory adjacent to cities having more than 10,000 inhabitants. Séction 2 of the original act and the amendatory act provides in part as follows: “Any number of identical petitions may be circulated; and identical petitions with additional names may be filed at any time until the-county court acts.” Learned counsel.for appellant contend that, under the peculiar wording of this statute, the jurisdiction of the county court is not called into play until the day the court acts on the petition. At the trial the appellants offered to introduce a letter written by O. W. Clark, one of the signers of the original petition for the creation of the district, dated March 26, 1926, addressed to the county judge of Jefferson County, as follows: “In regard to proposed paving of West 25th Avenue: Several weeks ago a petition was presented to •me favoring paving of said street. I signed same, believing the majority of the home owners were in favor of said paving. After having signed said petition, another petition was presented against said paving, and I signed this petition, for the reason my lots are vacant lots and it is immaterial with me at the present time as to whether pavement is constructed. I wish to withdraw my name from both petitions, and will leave the matter entirely with the home owners in said district.” The trial court refused to allow the introduction of this letter, to which ruling the appellants duiy excepted.

Counsel for appellants contend that the court erred in excluding the above letter, for the reason that it proves that O. W. Clark had withdrawn his name from the original petition three days before the county court called the petition and considered the same, and, on such hearing, granted the petition and entered the order creating the district. The certificate of the clerk of the county court of Jefferson County showed that, before the county court took up the original petition for the creation of the district, there was on file in the county clerk’s office a remonstrance or counter-petition against the creation of the district, signed, with others, by O. W. Clark. It is conceded by counsel for the appellees that, if O. W. Clark’s name should be eliminated from the original petition, under the facts as stated, then such petition would not contain a majority in value of the property owners of the district and that the district was therefore illegally established. We do not find anything in the language of the statute supra, upon which the appellants rely, to distinguish this case in principle from the cases of O’Brien v. Root, 167 Ark. 119, 266 S. W. 931; Pope v. Nashville, 131 Ark. 429, 199 S. W. 101; Bordwell v. Dills, 70 Ark. 175, 66 S. W. 646.

In the case of O’Brien v. Root, supra, there was a clause in the statute which reads as follows: “Said order of exemption may be rescinded or modified at any time, upon petition of a majority of the qualified electors in the affected territory, as in the original petition' for exemption.” In that case we said: “This clause of § 11 does not contemplate that those who have signed the petition for exemption provided for in the first párt of the section and who have filed the same with the clerk of the county court, and thus given the court .jurisdiction to hear the petition, shall thereafter withdraw and erase their names from the petition without leave of the court. Those who have signed the original petition for exemption will not thus be permitted ‘to march up the hill’ to give the court jurisdiction, and then ‘march down again’ to destroy such jurisdiction in the same proceeding. The signers of the original petition for exemption should not be allowed, as is said in Bordwell y. Dills, supra, ‘to play fast and loose with the interest of society’. The law makes no provision for protests and remonstrances, for signing and counter-signing. The clause quoted, upon which counsel relies, does not permit a change of heart in the same proceeding after the jurisdiction of the court has attached by the filing of the petition for exemption.”

The reason expressed in the above cases for holding that, when petitions upon which the jurisdiction of the court is. predicated are once filed, they cannot thereafter bq changed by the erasure of names without leave of the court, obtains with as much force here as in those cases. As is said in Bordwell v. Dills, supra: “The law makes no provisions for protests and remonstrances, for signing and counter-signing. It only provides for the petition.” The provision of the act above, authorizing any number of identical petitions to be circulated and additional names to be filed at any time until the county court acts, has reference to the filing of petitions for the creation of the district.’ It does not contemplate that, when property .owners have once signed and had the petition filed for creating the district, they may then change their minds for any reason whatever and have their names erased from the original petition and placed on a petition protesting against the creation of the district. The doctrine of the above cases is against such procedure, and it is sound.

It is urged by counsel for appellknt that the judgment of the circuit court is fatally defective because it does not contain all the essentials required by law before creating the district, and is, in effect, only an affirmance of the judgment of the county court creating the district. This contention is not tenable, for the reason that the recitals of the trial court’s judgment show that it heard the cause upon the transcript of the judgment of the county court and the testimony of witnesses with the exhibits thereto. In other words, the recitals are tantamount to showing that the circuit court heard the case de novo and found that the petition for the formation of the idistrict was signed by a majority , in value of the property owners therein, and the recitals of the judgment show that “such district is validly organized in-ajll respects as provided by law, and that the order, of the said county court organizing,, establishing and laying off such district- should-be. affirmed. ’ ’ Certainly,- it cannot be said, from the recitals of.the-trial cburt’s judgment, that the judgment it .rendered was not its own judgment but; rather that of the county court. - While the recitals show that the trial court agreed with the county- court in all. of its findings and-.judgment,- nevertheless' the' findings in- all the essentials for the creation of=the district under the statute were'made and' entered by- the trial court. Indeed, the finding and recital in the-judgment of the trial cotirt “that such district is validly organized in all respects as is provided.by law’’ wasiall that was. neeessary- for such judgment to.- contain, since further procedure was wholly within, the jurisdiction of the county court, to which the cause was by the trial- court duly certified..

■ There are no reversible errors in the record, and the judgment is therefore affirmed. -

Hast, J., dissents.


author: Hart, J.,

text:
    Bandy v. Bandy.
    Opinion delivered July 12, 1926.
    Divorce — premature' decree — waiver' of 'defense. — A. petition to set aside a decree of divorce on the ground that it was prematurely-rendered after the case had been postponed to give petitioner an opportunity to defend, held properly ref.us.ed where petitioner 'was in the court room and made no defense when the .case was called. '
    - Appeal from Lawrence Chancery Court, .Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      STATEMENT OE EACTS.
    On the 2d day of December, 1924, Joe Bandy filed a petition in the chancery court of Lawrence County to set aside a divorce decree against him rendered by said court on October 31, .1924.
    According to the allegations-of his petition and the proof made by him, on September 19, 1924, his wife, Fredea Bandy, filed a complaint for divorce against him on the statutory ground that he had offered such indignities to her person as to render her condition in life intolerable.
    On October 28, 1924, Joe Bandy filed an. answer in which he denied the allegations of the complaint. On the 31st day of October, 1924, the chancery court tried the case upon the complaint and answer and the oral testimony introduced by the plaintiff. It was decreed that the plaintiff, Fredea. Bandy, be divorced from the defendant, Joe Bandy. No appeal was taken from this decree.
    The motion to set aside the divorce decree was filed at a subsequent term to its rendition.
    Joe Bandy has duly prosecuted an appeal from an order or decree of the chancery court denying his petition to set aside the divorce decree against him.

      Cooley, Adams & Fufar, for appellant.

      Smith, Jackson & Blackford, for appellee.
   Hart, J.,

(after stating the facts). Joe Bandy filed his motion to set aside the divorce decree in favor of his wife, on the second day of December, 1924, and it was overruled by the court on January 5, 1925, which was during the same term of the court. The sole ground relied upon to set aside the divorce decree was that it w;as prematurely rendered. The record show's that it was the practice of the court to hear divorce cases on oral testimony; and the case against the defendant, Joe Bandy, was postponed for the purpose of giving him an opportunity to defend the suit.

When the case was called for hearing, the defendant, Joe Bandy, was present in the courtroom, and made no defense to the action. Under these circumstances, his presence in court amounted to a consent that the case should he heard and determined. He had the opportunity to make any defense to the action that he might have, and, having failed to do so, he is not in an attitude to complain that the court refused to set aside the divorce decree.

.The record shows that the plaintiff, Fredea Bandy, acted throughout in the. utmost good- faith, and, since the decree of divorce was determined, has married another man in the State of Missouri.

It follows that the decree of the chancery court refusing to set aside the divorce decree should be affirmed, and it is so ordered.


text:
    Pictorial Review Company v. Rosen.
    Opinion delivered July 12, 1926.
    1. Evidence — pakol evidence rule. — As a general rule, a written contract cannot be contradicted or varied by evidence of a contemporaneous or antecedent oral agreement.

      Í. Contracts — fraud in reducing to writing. — Where a party’s agent, who was trusted to write a contract, omits some of its terms, or inserts provisions not agreed to by " the parties, such conduct constitutes fraud, and-makes the contract-void.
    -3. Sales — fraud of seller’s agent. — Where a buyer, upon discovering that the. seller’s agent had fraudulently written a sales contract different from that agreed upon, notified the seller not to ship the goods, he could decline to receive and refuse to pay for the goods.
    Appeal from Randolph- Circuit Court; John C. Ashley, Judge;
    affirmed.
    STATEMENT OP PACTS.
    The Pictorial Review Company, Inc., brought this suit against H. Rosen and A. Schuman, doing business in the name of the .New Leader,-to, recover $396.29 alleged to be due it for merchandise.

      The defendants filed an answer in which they admit that they signed a contract for the purchase of merchan.dise from the plaintiff, but pleaded that the contract is void on account of the fraud of the plaintiff’s agent.
    • .According to the averments of the answer, the traveling salesman o.f the plaintiff called upon the defendants at their store id the town of Pocahontas, in- Randolph County, Arkansas, and made a contract with them to purchase goods from them to be delivered in monthly shipments. It was agreed that the total shipments would be $150 and that the monthly shipments would not exceed $8. The traveling salesman of the plaintiff explained to the defendants that he was in a hurry to catch the next train, and told them that, if they would sign a printed form of contract in blank, he would fill it in according to their agreement and send it to his company. The defendants had confidence in the statement of the plaintiff’s agent and relied upon his representations. It was agreed that a copy of the contract should be sent to the defendants.
    When the defendants received a copy of the contract, they ascertained that it provided for the purchase of $300 worth of goods by them, and that each shipment would be $60. They at once wrote the plaintiff that this was not .according to their agreement-with the plaintiff’s agent, and notified the -plaintiff not to ship' the goods. The plaintiff shipped the goods according to the terms of the -contract sent in by its agent, and the defendants refused to receive them.
    The plaintiff filed a demurrer to the answer, which was overruled by the court. The plaintiff then introduced in evidence the written contract for the shipment of the goods signed by the defendants, and proved that the goods had -been shipped in accordance with the terms of the written contract and that the defendants had refused.to receive the goods or to pay for them.
    The defendants, over the objections of the plaintiff, introduced witnesses and proved by them the facts alleged in their answer.

      The jury returned a verdict in favor of the defendants, and the plaintiff has duly prosecuted an appeal to this court.

      John L. Bledsoe, for appellant.

      Pope & Bowers, for appellee:
   Hart, J.,

(after'stating the facts)." The sole reliance of the plaintiff for a never sal of the judgment is’that the court erred in overruling-its demurrer to the answer of the defendants 'and in permitting the - defendants to introduce evidence to sustain the allegations of their answer.

In making this contention the plaintiff relies upon the general rule that a written contract cannot he contradicted or varied by evidence of an oral agreement between the parties before or at the timé of the execution of isiich contract. This- general rule has been often applied by this court, but exceptions to the general rule have also been recognized by the court.

According to the. allegations of the answer and the proof made by the defendants, the traveling representative of.. the-plaintiff was trusted to reduce, the contract for -the purchase of the goods to-writing, and-he was bound to do it truly. In such cases this court has recognized that, where the party who was trusted to write .the’contract omits some of its 'terms, or inserts provisions not agreed to by the parties, such.conduct constitutes Fraud and makes the contract void. Barton-Parker Mfg. Co., v. Taylor, 78 Ark. 586, 94 S. W. 713; Main v. Oliver, 88 Ark. 383, 114 S. W. 917; William Brooks Med. Co. v. Jeffries, 94 Ark. 575, 127 S. W. 960; White Sewing Mach. Co. v. Atkinson & Son, 126 Ark. 204, 190 S. W. 111; and J. I. Case Threshing Mach. Co. v. Southwestern Veneer Co., 135 Ark. 607, 205 S. W. 978.

According to the allegations of the answer, the agent of the plaintiff fraudulently wrote' the contract different from the one really madé, and, as soon as ‘the defendants found this out, they countermanded the order and notified the plaintiff not ’to ship the goods. Nevertheless1, 'the plaintiff shipped the'good's, and'the defendants, as they had a right to do, declined to receive and refused to pay for them.

The evidence of the defendants was not a contradiction of the writing, but showed what it should have contained as the real agreement between the parties. . If this were not so, the rule that fraud vitiates everything would become the exception instead of the rule itself.

It follows that the judgment of the circuit court was correct, and it will therefore be affirmed.


text:
    Terry v. Cooper.
    Opinion delivered July 12, 1926.
    1.-. Trade name — restraining use op name. — Injunction will lie to restrain the use by one corporation or firm of the name of a prior corporation, which tends to create confusion and to enable such corporation or firm to obtain, by reason of the similarity of names, the business of the other corporation.
    2. Trade name — sale op business. — The sale by a corporation of “all furniture, fixtures, abstract books, accounts receivable, automobile, all records and property, and all assets of every kind and description,” held to include its trade name.
    3. Trade name — restraining use op name. — An abstract company which, by purchase, became entitled to use a certain trade name, ' ' but voluntarily abandoned it and used another trade name and did business thereunder, held not entitled' to restrain the seller from conducting a similar business under his former trade name, where the resulting- confusion was slight, notwithstanding the abstract company still used letter heads with the old trade name and the new name stamped thereon as successor.
    Appeal from Mississippi Chancery Court, Chickasawba District; J. M. Futrell, Chancellor;
    reversed.
    STATEMENT BY THE COURT.'
    The plaintiff seeks in this action to restrain the use by the -defendant of its corporate name, “The Terry Abstract Company,” on the ground that such use is an invasion of the rights of the plaintiff to the corporate name, “The Terry Abstract Company.”

      The suit was originally brought by George N. Bickner against E. M. Terry, but Raymond Cooper, having purchased the interest of Bickner, has been substituted as the plaintiff in the suit. The suit was defended on the ground that the plaintiff had no right to the use of “The Terry Abstract Company” as its trade name, and that the defendant had. not in any way tried to interfere with or to injure the business of the plaintiff..
    The facts are that The Terry Abstract Company was organized as a corporation on the 18th day of October, 1911, with an authorized capital stock of $10,000. E. M. Terry was one of the incorporators. The' corporation was organized for the purpose of abstracting titles in Mississippi County, Arkansas, and at once began to conduct the business for which it was organized. In September, T917, the Farmers’ Bank and Trust Company owned 200 shares of the capital stock of The Terry .Abstract Company, and E. M.' Terry and five other persons owned one share each of the par value of- $25. In 1922 J. W. Rhodes, Jr., C. F.. Rhodes and J. A. Pigg acquired all the capital stock of this corporation. In January, 1923, G. N. Bickner acquired a controlling interest in the corporation, and on the 11th day of June, 1923, the name of the corporation was changed to Chickasawba .Abstract & Investment Company, Inc.-, and the certificate of the Secretary of State authorizing the change was duly issued in the manner provided by law. The corporation operated under its new name until February 25, 1924, when a resolution was adopted authorizing the corporation to sell and convey its assets to J. W. Rhodes, Jr.., and this was done. Rhodes sold and conveyed, the business to George N. Bickner. At the same meeting a resolution was adopted authorizing the corporation to surrender its charter, and a formal dissolution was had on February 25, 1924. ' The bill of sale-to George N. Bickner contained the following:
    “All furniture, fixtures, abstract books, accounts receivable, automobile, all records and property and all assets of every kind and description formerly owned by the Chickasawba Abstract & Investment Company,”
    J. W. Rhodes Jr. and George N. Bickner conducted the business for a time under the firm name of Chickasawba Abstract Company. The letterheads printed for The Terry Abstract Company were used by the Chickasawba Abstract & Investment Company and by the Chickasawba Abstract Company. A rubber stamp was used to show the new name of the company, and the letterheads would read as follows: “'Chickasawba Abstract & Investment Company, Inc., successors to The Terry Abstract Company.”
    In 1924 E. M. Terry, who is an abstracter of long experience, formed a partnership with Ray Worthington for the purpose of abstracting titles in Mississippi County, and conducted their business in the name of Terry Abstract Company. Other facts will be stated in the' opinion.
    The chancellor found that The Terry Abstract Company changed its corporate name to Chickasawba Abstract & Investment Company; that said last named corporation sold its property and assets to J. W. Rhodes, Jr., and surrendered its charter; that J. W. Rhodes, Jr., sold the property and assets of the business to George N. Bickner; that Bickner and his predecessors in title continued to use the name The Terry Abstract Company upon their stationery, and that Bickner was entitled to the trade name of said corporation,. The Terry Abstract Company.
    It was decreed that the defendant E. M. Terry be restrained from using in any manner the name The Terry Abstract Company, or any name closely resembling it.
    The case is here on appeal.

      T. J. Crowder and George Vaughan, for appellant.

      Reed & Campbell, for appellee.
   Hart, J.,

(after stating the facts). At the outset it may be stated that, in respect to corporate names, the same rule applies as to the names of firms or persons, and an injunction lies to restrain the use by one corporation or firm of the name of a prior, corporation which tends to create confusion, and to enable the later corporation or firm to obtain, by reason of the similarity of names, the business of the prior one. Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490, 27 L. R. A. 42; Brunson v. Reinberger & Collier, 134 Ark. 211, 203 S. W. 269; McLean v. Fleming, 96 U. S. 245; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118; Donnell v. Herring-Hall-Marvin Safe Co., 208 U. S. 267; and Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U. S. 554.

. In the case last cited it was held that, although, the trade name may not be mentioned in the sale of a business taken over as a going concern, a deed conveying trademarks, patent rights, trade rights, good will, property, and assets of every name and nature, is broad enough to include the trade name under which the vendor corporation and its predecessors had achieved a reputation. So it may be said that the general language used in the bill of sale to Bickner was broad enough to include the trade name of the corporation selling its assets to him and his associates.

The principle of the cases upon the subject of enjoinr ing a person from using the trade name of another person or corporation proceeds upon the theory that it is a fraud on a person or corporation which has established, a trade name and carries on its business under that name, that some other person or corporation should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him or it in the belief that they are dealing with a person or corporation which has given a reputation to the name.

In applying the rule to the facts and circumstances sh'own in the record in this case, we do not think there is sufficient evidence to justify the issuance of an injunction. The stockholders of The Terry Abstract Company, of their own volition, changed the name of that corporation to the. Chickasawba Abstract & Investment Company, and thereafter conducted its business under that name.

It is true that the printed stationery of The Terry Abstract Company was used, but a rubber stamp was used which made the letterheads read, “Chickasawba Abstract & Investment Company, Inc., successors to The Terry Abstract Company.” This manifested an intention upon the part of the stockholders of the corporation not only to change the name of the corporation, but to conduct its business under the new name, and to inform those doing business with it of that fact. In the very nature of things the stamping of the words, “Chickasawba Abstract So Investment Company, Inc., successors to,” before the printed words, “The Terry Abstract Company,” would show to persons receiving the letters that it was the intention of the corporation to carry on its business under .its new name. The use of the words, “successors to,” would notify those receiving letters that the new corporation had purchased the business of the old corporation and would thereafter carry the business on under its new corporate name.

On this point Bickner testified that the name was changed because the defendant, E. M. Terry, .had been receiving mail addressed to the corporation under its old corporate name, and thereby interfered with its business. On1 this point, however, Terry denied having, in any manner, interfered with the business of the plaintiff. He admits that, on several occasions, he received letters which were intended for the plaintiff, but said that he delivered them to the' plaintiff. He testified, however, that in no instance did he use the mail of the plaintiff to secure business for himself.

' Be that as it may, the fact remains that the plaintiff changed its name from The Terry Abstract Company to the Chickasawba Abstract So Investment Company, and later to the Chickasawba Abstract Company. There is no similarity whatever between these names, and nothing which would, tend to confuse the minds of those wanting to do business with the plaintiff, and to make them believe' that the Chickasawba Abstract So Investment Company intended to .carry on its business under its old name, The Terry Abstract Company. If such had been its intention, no good reason appears why it should have changed its name at all; or, if it intended that the words, “successors to The Terry Abstract Company,” be a part of its new name, it should have made it a part thereof in its articles of association and had the same certified as its new name under the statute by the Secretary of State, instead of simply saying that it had changed its old name, The Terry Abstract Company, to the Chickas'awba Abstract & Investment Company.

The testimony does not show that any confusion resulted, except in a very few instances, and these instances were not numerous enough or sufficiently Continuous as to have warranted the court in granting an injunction in the matter.

The result of our views is that the decree of the chancery court will be reversed, and the complaint of the plaintiff dismissed for want of equity.


text:
    Pine Bluff v. Arkansas Traveler Bus Company.
    Opinion delivered July 12, 1926.
    1. Municipal corporations — control op streets. — Municipal corporations have control and supervision of the streets within their limits.
    2. Automobiles — regulation.—The State can regulate and control the use of motor vehicles, except in so far as it has granted such right to other governmental agencies.
    3. Municipal corporations — regulation op motor vehicles.— Under the provisions of the motor vehicle law (Acts 1911, p. 94), the State has recognized the exclusive right of municipal corporations to make and enforce rules and regulations for motor vehicles to be used for public hire.
    4. Constitutional law — police power. — Private property devoted to public use is subject to regulation under the police power.
    5. Carriers — regulation—delegation op power. — In the absence of constitutional limitations, the Legislature can regulate the business of common carriers, and may delegate such power to municipal corporations.

      6. Municipal corporations — regulation op bus lines. — An ordinance requiring ¡bus lines, with permits from the Railroad Commission, to establish stations at designated places, and prohibiting busses from stopping on streets to take on or discharge passengers, except at stations, held valid.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    reversed.
    STATEMENT oe eaots.
    The city of Pine Bluff' prosecutes this appeal to reverse the judgment of the circuit court holding invalid an ordinance regulating the operation of motor busses in the city of Pine Bluff. The record shows that the city of Pine Bluff passed an ordinancé that public busses operating in’and out of the city should be required to establish stations at their own expense, at designated places within thb city, for the purpose of taking on and discharging passengers.
    Section 2 of the ordinance provides that such public busses be further prohibited from stopping on the streets of the city for the purpose of taking on or discharging passengers, except at the stations to be provided by them tinder the ordinance..
    Section 3 provides that any firm or corporation violating any provisions of the ordinance shall, upon conviction, be fined as prescribed by the ordinance..
    The Arkansas Traveler Bus Company is an intercity bus line operating between the cities of Pine Bluff and Little Rock, and has been granted a permit to engage in such business by the Railroad Commission of the State of Arkansas. It violated the provisions of such ordinance, and was adjudged to pay a fine of $25 in a prosecution in the municipal court of Pine Bluff.
    The Arkansas Traveler Bus Company duly prosecuted an appeal to the circuit court, and that court,under the facts stated, held the ordinance to be invalid, and the defendant was ordered discharged.'
    From the judgment rendered the city of Pine Bluff has duly prosecuted an appeal to this court.

      L. Dewoody Lyle, for appellant.
   Hart, J.,

(after stating the facts). In Willis v. City of Fort Smith, 121 Ark. 606, 182 S. W. 275, it was held-that, under our statutes, municipal corporations have expressly been given control and supervisión of the streets and highways within their limits. It was further. held that the State has a right to regulate and control- the use of motor vehicles except as it has granted such right to other governmental agencies, and that, under the -provisions of our motor vehicle law, the State has recognized the exclusive right of municipal corporations to make and enforce rules and regulations for motor vehicles tó be used for public hire.

It is a rule of universal application in this country that, when private property is devoted to a public use, it is subject to regulation under the police power. It is well settled that, in the absence of constitutional limitations, the Legislature has the right to regulate and prescribe the rules according to which the business of common-carriers may be conducted, and this power may be delegated to municipal corporations to be exercised for the promotion of the public convenience. Hence it is well settled that the right of a citizen to travel upon the streets and transport his property thereon in the ordinary course of things is wholly different from that of a common earr rier who makes the streets his place of business and uses them for private gain in the running of motor busses. The former is the common right of every one, and the latter

is a special or exceptional use of the streets not common to all the citizens of the State. See Dickey v. Davis (W. Va.), 85 S. E. 781, L. R. A. 1915F, 840; Hadfield v. Lundin (Wash.), 168 Pac. 516, L. R. A 1918B, 909; Commonwealth v. Kingsbury (Mass.), 85 N. E. 848, L. R. A. 1915E, 264; Cummins v. Jones (Ore.), 155 Pac. 171; Peters v. San Antonio, 195 S. W. 989; Memphis v. State, (Tenn.), 179 S. W. 631, L. R. A. 1916B, 1151; Allen v. Bellingham (Wash.), 163 Pac. 18; and State v. Spokane (Wash), 186 Pac. 864.

The Arkansas Railroad Commission was established, among other things, for the purpose of regulating motor busses, but there is no inconsistency between its powers arid the power given cities to control their streets. Indeed, one of the rules of the Arkansas Railroad Commission provides for the loading and unloading of passengers of public busses operating as common carriers at only privately owned depots in the cities and towns requiring it by valid ordinances.

The result of our views is that the circuit court erred in holding the ordinance in question to be invalid, and for that error the judgment will be reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Fuller v. State.
    Opinion delivered July 12, 1926.
    1. Criminal law — evidence—statements op conspirator. — In a . prosecution for larceny, testimony as to the conduct and statements of an alleged co-conspirator, done and made in defendant’s absence and after commission of the larceny,, held erroneously admitted.
    2. 'Criminal law — evidence—possession op stolen-article. — Evidence showing possession by an alleged accomplice of a car • answering to the description of one stolen, and as to his aiding in recovery of the stolen car, is admissible, and not contrary to the rule against admitting statements of a co-conspirator made in defendant’s absence and after the commission of the oifense.
    3. Criminal law — instruction—harmless error. — Where the jury reported their inability to reach a verdict and stated that they stood 10 to 2, an instruction that, if the majority was for defendant,- the minority should doubt their judgment, although erro- . neous, was not prejudicial, though the verdict was against the defendant.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    reversed.

      John P. Roberts -and Evans & Evams, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Smith, J.

Appellant was indicted for burglary and grand larceny, alleged to bave been committed by breaking and entering the garage of one E. B. Brown and stealing therefrom an automobile. The indictment contained two counts, the first charging burglary and the second grand larceny. Appellant was acquitted on the burglary count and convicted on the grand larceny count, and has appealed.

It was the theory of the State that appellant broke and entered into the garage and stole the automobile therefrom, and was assisted by one Hubert Smith in disposing of the car after it had been stolen.

Much testimony was offered, over the objections and exceptions of appellant, touching the conduct and statements of Smith,, in the absence of appellant, after the larceny had been committed. The purport of this testimony was to the effect that Smith had come into the possession of the car some weeks after the larceny, through a man named Allen, who, it was contended, had received the car from appellant. Such, at least, was the effect of the testimony concerning th§ declaration and admissions of Smith.

The Attorney General confesses error in the admission of this testimony, and we think properly- so. The testimony was incompetent. In the case of Stroud v. State, 167 Ark. 502, it was said that “after the accomplishment of the enterprise, the acts or declarations of a co-conspirator are not evidence against the others unless done or made in their presence.” It was there further said “that acts and declarations of a co-conspirator done and made after the accomplishment of the enterprise are not evidence against any one of the conspirators except himself. ’ ’

Objection was made to certain testimony showing that Smith was in possession of a Ford car, which was slightly used, and such a car as was stolen from Brown; and testimony was also admitted, over appellant’s objection, to the effect that Brown went with Smith to Wichita, Kansas, where the stolen car was recovered. The admission of this testimony does not offend against the rule just quoted. It was competent for the State to show what became of the car, and who was seen in possession of it, and where it was found, if such testimony tended to connect appellant with the larceny of the car; but this is an entirely different matter from proving the declarations and admissions of Smith made after the larceny was complete and in. the absence of appellant. Any admission or declaration of Smith, in the absence of appellant, and after the completion of the crime, was merely hearsay evidence, and was inadmissible for that reason.

Exceptions; were saved to certain proceedings in the trial had on Sunday, but, as these exceptions relate to matters which fire not likely to recur on the retrial, we do not discuss them.

. The jury reported several times their inability to reach a verdict] and were asked each time they reported how they stood. Without stating whether the majority was for the State or the defendant, it was answered that they stood ten to two. The court then gave, over appellant’s objection, .an instruction numbered 11, which is very similar to an instruction condemned in the case of McGehee & Co. v. Fuller, 169 Ark. 920. The concluding part of this instruction reads, as follows: “And, on the® other hand, if a majority are for the defendant, the minority ought to seriously ask themselves whether they (doubts) may not be reasonable, and ought to doubt the correctness of their judgment which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows. ’ ’

It appears that the language quoted is very similar to the portion of the instruction condemned in the case of McGehee & Co. v. Fuller, supra. In that case the jury found for the defendant, and, in condemning the portion of the instruction similar to the language quoted from the instruction given-in the present case, we said: “Now, it is evident tha;fc this part of the instruction is materially different from that which just precedes it. It specifically tells the jury that, if a majority is for the defendant, the minority ought to doubt the correctness of its judgment, wbicb. is not concurred in by its associates, and distrust tbe weight of tbe evidence which fails to carry conviction to the minds of their fellows. This constitutes advice by the court for the minority to yield to the majority, if the majority is for the defendant, and this, without considering whether their own conclusions are reasonable, in the view of the fact that majority believes the other way.”

But, unlike the case of McGehee & Co. v. Fuller, supra, where the verdict was for the defendant, the verdict here was against the . defendant. So, while the instruction was erroneous, it was not prejudicial here, as it was there, for the reason that the error was. in favor of the defendant, who prevailed in the former case.

* For the error indicated in the admission of the testimony concerning the acts and declarations of Smith after the completion of the crime, and in the absence of appellant, the judgment of the court below must be reversed, and the cause remanded for a new trial, and it is so ordered.


text:
    Western Assurance Company v. White.
    Opinion delivered July 12, 1926.
    1. Insurance — limitation op concurrent insurance. — A fire insurance policy may properly limit the total concurrent insurance and invalidate the policy if that amount is exceeded.
    2. Insurance — limitation op concurrent insurance — waiver,— While a clause in a fire insurance policy limiting the total concurrent insurance in the property is valid, it may be waived by the insurer; and where there was evidence that the insurer’s agent knew of the excess of insurance, and the insurer’s subsequent conduct was such as to imply a purpose not to insist upon a forfeiture on that account, a verdict finding that there was a waiver of this provision is conclusive.
    3. Insurance — sole ownership. — A husband who is tenant by the curtesy is not the sole owner within a fire insurance policy requiring to have the sole ownership, since his wife has a right to an equal and separate enjoyment of the proceeds derived from such an estate.

      Appeal from. White Circuit Court; E. D. Robertson, Judge;
    reversed.

      MoMillen & Scott, for appellant.

      John E: Miller, Cul L. Pearce and John D. DeBois, for appellee. ■
   Smith, J.

The appellant insurance company issued to appellee individually a policy of insurance on a building owned by appellee and his wife as tenants by the entirety for the sum of $1,500. The policy contained, a provision limiting the concurrent insurance on the building to $4,000. Additional insurance on the building was taken out by appellee, so that, at the time of the fire which destroyed the building, there was $5,500 insurance oq it. The policy contained a clause which provided ,that it should be void if the total concurrent insurance, exceeded $4,000. The policy also contained a provision that it should be void “if the interest of the insured be other than unconditional and sole ownership.”

The insurance company denied liability upon two grounds: first, because insurance in excess of the concurrent insurance allowed by the policy sued on had been taken out; second, because appellant was not the sole and unconditional owner of the building.

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

The .validity of a clause in an insurance policy limiting, the total concurrent insurance and invalidating the policy if that amount is exceeded has been frequently recognized by this court; indeed, it is recognized and enforced universally, but it has been held by this and all other courts that, while the clause is valid, it may be' waived. That such a provision may be waived was declared by this court in the case of German-American Ins. Co. v. Harper, 75 Ark. 98, 86 S. W. 817, and that case has since been several times followed.

Without setting out the testimony showing knowledge of the Excess of insurance, it may be said that the testimony warranted the jury in finding that the agent of the appellant company had such knowledge of this fact, and that its conduct was thereafter such as to reasonably imply a purpose not to insist upon a forfeiture of the policy on that account, and, this being true, the' verdict. of the jury finding that there was a waiver of this provision .is conclusive of that fact. Ark. Mutual Fire Ins. Co. v. Claiborne, 82 Ark. 150, 100 S. W. 751.

Upon the second question, it may be said that the undisputed testimony shows that appellant and his wiféwere the owners of the insured property as tenants by the entirety, ánd there was.no testimony charging the insurance company, or its agent, with knowledge of that fact,, so that it cannot be contended, in fact it is not insisted, that there was any waiver of the provision of the policy that it should be void “if the interest' of the’ insured be other than unconditional and solé ownership. ’ ’ On the contrary, the insistence is that appellant, as a tenant by the entirety, was the sole and. unconditional owner.

We do not agree with counsel in this insistence. - If being a tenant by the entirety made appellant the sole and unconditional owner, then his wife, the other tenant by the entirety, would also be the sole and unconditional owner, and we would have the anomalous condition of two persons each being the sole and unconditional owner, for her interest is as great as his, and she has the same right to the use and possession of the property and the same right to' share in the rents and profits thereof. In the recent case of Moore v. Denson, 167 Ark. 134, 268 S. W. 609, we had occasion to consider the nature of the respective rights of the holders of an estate of this kind. .In that case a judgment had been recovered against the husband, and we held that his interest in the estate might be sold under execution subject to the “wife’s right of survivorship.

This holding followed from the prior holding of this court in the case of Branch v. Polk, 61 Ark. 388, where the court considered the effect on estates by the entirety of the provisions of our Constitution and statutes which had enlarged the rights of married women. Mr. Justice Rnu dick, speaking for the court, said: “In this State a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our Constitution and statute have excluded the marital rights of the husband therefrom during the life of the wife; Const. 1874, art. 9, § 7; Sandels & Hills’ Digest, § 4945; Neelly v. Lancaster, 47 Ark. 175, 1 S. W. 66, 58 Am. Rep. 752; Roberts v. Wilcoxson, 36 Ark. 355. We think that the effect of these provisions Was to give the wife control of all the property owned by her, including her interest in an estate by tbe entirety as well as other real estate. To say that it did not apply to an estate by entirety would be to deprive her of a share in. the.rents and profits of such an estate during the life of her husband, and would establish an exception to the operation of the Constitution and statute resting on no valid principle or reason. Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337, 43 Am. St. Rep. 766. On the other hand, to say that neither she nor her husband could convey any interest in such an estate except by a joint deed would tie up the estate and prevent either of them from controlling or disposing of his or her interest without the consent of the other. It would also result in placing it beyond the reach of the creditors of either of them, and such is the rule followed in several of the States. McCurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391; Naylor v. Minock, 96 Mich. 182, 55 N. W. 664, 35 Am. St. Rep. 595, and note.”

The learned justice there also said: “The rational construction of these provisions of our Constitution and statute, which ‘uprooted principles of the common law hoary with .age, ’ swept away the marital rights of the husband during the life of the wife, and gave enlarged powers to married women, is, not that they lessen the power of the husband over his own interest in an estate by entirety, but, that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the control of her own interest. The right of the wife to control and convey her interest, we think, is now equal to the right of the' husband over his interest. They each are' entitled "to one half of the rents and profits during coverture, withpower to each to dispose of or charge his or her interest, subject to the right of survivorship existing in the other. Hiles v. Fisher, 144 N. Y. 306; 43 Am. St. Rep. 762: Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52.”

It follows therefore 'that the husband has no longer, as at common law, control over the interest' of his wife in an estate by the entirety, but she has the right jo" an equal and separate enjoyment of the proceeds derived from such an'estate.

The language, ‘ ‘ unconditional, and sole ownership, ’ ’ appearing in the policy sued on, has 'been many times defined'in the textbooks on insurance and in the reported cases as follows;' “An insurance ownership is sole when no. one else has any interest in the property,.as owner, and is unconditional when the. quality of the estate is not limited. or affected by any condition.” Royal Ins. Co. Ltd., v. Shirley, 106 Sou. (Miss.) 884.

Under this definition a tenant by the entirety does not qualify- as a sole owner. Indeed, we -have found no ease holding, that a tenant by the entirety was a' sole owner and entitled to recover a,s such, where the policy of insurance required that the insured be the sole owner. The rule is stated to the contrary in 26 C. J., chapter Fire Insurance, § 219, page 180, where it is said: “When the title is in husband and wife jointly, the husband cannot insure as sole and unconditional or absolute owner.” We have examined the cases cited in the note to the text quoted and we -find they fully sustain the text.

The case of Turner v. Home Ins. Co., 189 S. W. 626, is cited as an apparent exception to the rule. This was a decision by a Court of Appeals of Missouri, but it was recognized and stated in that case that “where the assured’s title is under a deed, making him only- a tenant by the entirety with his wife, he is not the sole and unconditional owner.” The court further said: “If this had been all that was shown in this case as to the title, we would be inclined to hold the policy void, in view of what the Supreme Court (of Missouri) held as to the wife having a substantial interest when holding as a tenant by the entirety, in Holmes v. Kansas City, 209 Mo. 513, 108 S. W. 9, 1134, 123 Am. St. Rep. 495. ”

- But that court said that the undisputed testimony' in that ease showed that the husband had purchased and paid for* the property without any intention that any interest in, it be conveyed to his wife, and that therefore there was a resulting trust in the husband’s favor, and he-was'therefore the equitable owner of the property. It therefore appears that this case is not in fact out of. line with other cases on the subject.

We conclude therefore that appellee was not the sole and unconditional owner of the property, and, as it Was not shown that the insurance company had waived this provision of the policy, it follows that a right to recover on the-policy-was not shown. 2 Joyce on Insurance, § 1048A; 6 Cooley’s Briefs on Insurance, § 1382 (J); Clawson v. Citizens’ Mutual Fire Ins. Co., 121 Mich. 591, 80 N. W. 573, 80 Am. St. Rep. 538; Schroedel v. Humboldt Fire Ins. Co., 27 Atl. 1077; Ostrander on Fire Insurance, § 63; Ætna Ins. Co. v. Resh, 40 Mich. 241; Genesee Falls Assn. v. U. S. Fire Ins. Co., 16 App. Div. N. Y., 44 N. Y. S. 979.

The judgment-of the court- below will-therefore be reversed, and the cause remanded.


text:
    Shewmake v. Hudson.
    Opinion delivered July 12, 1926.
    1. Drains — organization op subdistricts. — Under Crawford & Moses’ Dig., § 3650 and § 3651, as amended by Acts 1917, p. 1446, a subdistrict, of land wholly or partly within a drainage district may be organized and become part of the' principal district, 'though such district was created by Sp. 'Acts 19Í9, p. !972, and has been completed.
    2. ' Drains — creation op‘ subdistriot. — A subdistrict, which is to become part of a drainage district created by Sp.'Acts 1919,'p. 972, may be organized under, the general law provided by Craw- , ford & Mpses’ D.ig., § 3650 and § 3651 as amended by Acts 1917, p. 1446.
    3. Drains — subdistrict a separate entity. — A subdistrict organized under Crawford & Moses’ Dig., § 3650, as part óf a drainage district organized under Sp. Acts 1919, p. 972, becomes a separate entity, so' far as the assessment of benefits necessary to construct it is concerned.
    4. ; Drains — authority op commissioners. — The - commissioners ,of the drainage district created by Sp. Acts 1919, p. 972, have, no authority to do anything .not'authorized by such act, but the commissioners of a subdistrict, created under the general- law (Crawford & Moses’ Dig.,' §§'3650, 3651, as amended by Acts 1917, p. 1446) ‘, derive their authority from the general law, and not from the special .act.
    5. Drains — jurisdiction, to create subdistrict. — Where the principal drainage district was created by Sp. Acts 1919, p.. 972, jurisdiction to create a subdistrict, embracing lands wholly in one county is in' the county' court.
    Appeal from J efferson Chaucery Court; IL Rv Lucas, Chancellor;
    affirmed.

      Wooldridge & Wooldridge, for appellant.

      Rowell Alexander, for appellee.
   Smith, J.

Appellant is the owner, of lands within a proposed subdistrict'.to the Salt Bayou Drainage: District, : -in.' J efferson and Arkansas ¡counties,- a - district created by special act No-. .658 of the Acts of ,1919 (Special-Acts 1919, page-972), and by this, suit he attacksythe organization of the. subdistrict land prays an-injunction to restrain the collection of the taxes assessed against-his lands in and'for the subdistrict.

The commissioners of the subdistrict, who are the defendants in the suit, are. the commissioners of the district created by the special act of the General Assembly, and were appointed the commissioners of the subdistrict by an order of the county court of J efferson County, and, pursuant to this appointment, made the assessment of betterments against appellant’s lands the collection of which he seeks by this suit to enjoin.

It was alleged in appellant’s complaint that the order creating the subdistrict was entered upon the petition of a majority of the owners of land in said subdistrict pursuant to the provisions of § 3650, C. & M. Digest, and that appellant’s property was situated within the boundaries of the proposed subdistrict, and are in Jefferson County, as are all the lands within the subdistrict.

It is alleged that the special act creating Salt Bayou Drainage District conferred jurisdiction over all matters pertaining to said district upon the circuit court of Jefferson County, and that all proceedings had in the organization of the subdistrict were had in the county court of Jefferson County, which court, appellant alleges,, was without jurisdiction to create said subdistrict.

A demurrer to the complaint was sustained and the cause was dismissed, and this appeal is prosecuted to reverse that decree.

For the reversal of this decree appellant makes two contentions: First, that there, is no statute under which a subdistrict can be created to a district created by a special act of the General Assembly, and that therefore the order creating the subdistrict is void because no court has jurisdiction to create a subdistrict to a special district. Second, that, if this contention is not sound, the order creating the subdistrict is void for the reason that the county court of Jefferson County had no jurisdiction; that the act creating Salt Bayou Drainage District, in Jefferson and Arkansas counties,, vested jurisdiction of all matters pertaining to the district in: the J efferson Circuit Court, and, under act No. 270 of the General Assembly for the year 1917 (volume 2, Special Acts 1917, page 1446) of the Special Acts of 1917, the petition for the organization of the subdistrict should have been filed in the circuit court of the couxity within which the main district was organized.

• In support of the first contention, counsel for appellant cites the case of Pumphrey v. Road Imp. Dist. No. 1 of Grant County, 125 Ark. 422, 189 S. W. 59. Bfut we think the case cited does not support the contention made. There a road improvement district created by a special act, which was complete in itself, sought to enlarge its powers in the matter of issuing bonds to complete the proposed improvement by assuming the benefit of a general law which had been enacted before the creation of the road' district. The cost of the proposed improvement would have exceeded the assessed betterments unless there was read into the special act the provision of a prior general . law relating to improvement districts,, thát deferred installments of the assessed benefits should hear interest. It was held in the case cited that this could not be done, because no general law in force at the time of the enactment of the special act could have the effect of enlarging the powers of the commissioners of the road' district created by the special act.

That question is not presented here. The improvement provided for -in the special act creating Salt Bayou Drainage District has been completed, and the question is whether a subdistrict may be organized and become ,a part of this special district.

We think § 3650, C. & M. Digest, confers this power. This section of the' Digest was § 18 of act 177 of the Acts of 1913 (Acts 1913, page 749), which amended the'drainage act of 1909. By this section it is provided that three or more owners of real property wholly within, or partly within and partly without, a' drainage district may petition the county court to establish a subdistrict embracing their property; and, by § 19 of the Acts .of 1913, which appears as § 3651, C.' & M. Digest, it is provided that, if the prayer of the petition is granted, the county court “shall appoint the commissioners of the drainage district in which the subdistrict, or the greater part thereof, shall lie,” to act as commissioners for the subdistrict, and that the proceedings thereafter shall conform in all respects to the provisions of the law relating- to the -creation of the original district. ' . .

Section 3651, C. & M. Digest, was amended by act 270 of the Acts of 1917, page 1446, and by this amendatory act it is provided that, when the county or circuit court establishes a subdistrict, it shall appoint the commissioners of the main district of which the subdistrict is to become a part to act as commissioners of the subdistrict, and that the proceedings thereafter shall conform to, the provisions of the act amended, that is, the general drainage law. It is further provided in the amendatory statute that, where the main drainage district .of which the proposed subdistrict is to become a .part, shall have been organized by the circuit court, the petition for the proposed subdistrict shall be presented to such circuit court and all subsequent proceedings had therein, and that, “where the main drainage district of which the proposed subdistrict shall embrace lands lying in another or other counties, the petition for the organization of the proposed subdistrict shall be filed in the circuit court of the county in which the main district was organized, and all subsequent proceedings shall be had in such court.”

The insistence of appellant is that, under the statutes quoted and referred to, there is (a) no provision for the creation of the subdistrict to the district created by a special act of the General Assembly; and (b), if so, the proceedings so to do would have to be in the circuit court, for the reason that the lands composing the original district lie partly in Arkansas County and partly in Jefferson .County, and, under the special act, all proceedings relating to the assessment of benefits, etc., in the special district were to be had in the circuit, court of Jefferson County, • It is admitted that all the lands lying within the proposed subdistrict are in Jefferson- County.

It appears that .the proposed Salt Bayou Drainage District is now a completed project, and it is not proposed to organize the snbdistriet under the provisions of the special, act which created' that district. The landowners proceeded under the general law in organizing the subdistrict, and we perceive no reason why they may not , do so. Subdistriets -become separate entities so far'as the assessment-of the benefits necessary to construct them is concerned, and the language of § 3650, C. & M. Digest, appears to be sufficiently comprehensive to permit owners of real property “wholly within a drainage district, or partly within and partly without such district,” to petition for the-establishment-of a sub-district,- even though the principal district was created by a special act of the General Assembly.

The ’commissioners' of the district created by the special act have ho authority under that act to do anything not therein authorized, but they did not initiate this proceeding under the special act, and the proposed'sub-district will not be constructéd pursuant to its provisions, and the-construction of the subdistrict is a'new and separate-proceeding whereby the subdistrict becomes attached to the main district.

In the case of Mahan v. Wilson, 169 Ark. 117, 273 S. W. 383, we reviewed the statute authorizing the creation of subdistricts, and said that the only limitation expressed in the statute with regard to a subdistrict is that it must be formed of lands “wholly within a drainage district, or partly within and partly without such district,” and pointed out that it could not be composed of lands wholly outside of the district. "We also said.that it is necessarily implied that the improvement contemplated by a subdistrict must be such that it can be treated as part of the same unit as the improvement provided for in the original district, and not an independent improvement. There is no showing here that these conditions do not prevail concerning the district created by the special act and the subdistrict organized under the statute.

The commissioners of the subdistrict, although commissioners of the special district, derive their authority from the general law, and not from the special act, and, if there is authority for the creation of the proposed sub-district — and we are of . the opinion that there is — the question then arises -whether the proceedings for that purpose should be in the county court of Jefferson County or in the circuit court of that county. As we have said, all of the lands within the proposed subdistrict are situated in Jefferson County, and the county court of that county would therefore have jurisdiction. It is.-true, as appears from the quotation herein .from the. amendatory act of 1917, where the main drainage district has been organized by the circuit court, the proceedings to organize a subdistrict thereto shall be in the circuit cburt, but the Salt Bayou Drainage District was not organized by' the circuit court of Jefferson County. It was created by a special act of the General Assembly, which conferred jurisdiction on the circuit court because the lands embraced in that district were partly in Jefferson County and- partly in Arkansas County.

Inasmuch as the main district was not organized in the'circuit court, and as all the lands'in the subdistrict are'situated in Jefferson County, we conclude that jurisdiction over the subdistrict was in the county court of Jefferson County.

The court below so held, and that decree is affirmed.


text:
    Clemmons v. Missouri State Life Insurance Company.
    Opinion delivered July 12, 1926.
    Usury — when loan not usurious. — Where a borrower contracted for a loan of $100,000 at-6 per cent, for seven years, receipt of $90,000, instead of $100,000, did not make the loan usurious, since the amount which the borrower would have had to pay on $90,000 at 10 per cent, would have exceeded the amount payable on the above contract by $11,000.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Wooldridge Wooldridge, Pace & Davis and J. C. Marshall, for appellant.

      W. D. Jones, for appellee.
   Smith, J.

This suit was brought 'by appellees to foreclose a deed of trust on lands belonging to appellants, who answered and' admitted the execution of the instrument sought to be foreclosed, but they alleged the same was void for usury, and, by way of cróss-complaint, prayed the cancellation of the deed of trust sought to be foreclosed. The court below found the fact to be that there was no usury in the transaction, and dismissed the cross-complaint and ordered the foreclosure of the deeds of trust, and this appeal is from that decree.

Appellees made appellants a loan through the intervention of a local brokerage concern engaged in negotiating farm mortgages, known as the American Farm Mortgage Company, and hereinafter referred to as the mortgage company, and the principal question of fact in the case is, whose agent was the mortgage company? The original deed of trust taken recited a loan of $100,-000, and it is an admitted fact that only $10,000 was deducted at that time, and there is much testimony as to the purpose for which this deduction was made, it being the insistence of appellants that it was a brokerage fee, which was divided equally between the mortgage company and appellee insurance company. It is the insistence of the appellees that an application was made to it for a loan of $100,000 to appellants, but the application was declined because the rate of interest proposed was only 6 per cent., whereas, at the time the loan was made, appellee was making no farm loans at a less rate than 7 per cent., and the mortgage company, being advised of this fact,; proposed to appropriate $5,000 of its- commission to appellees, which should be treated as the equivalent of a loan at 7 per cent., and that proposition was accepted, and the remaining $5,000 which was not paid to appellants out' of the proceeds of the loan were reserved by the mortgage company as a brokerage fee for its services in negotiating the loan.

We find it unnecessary to determine the issue of fact concerning the $10,000 not paid to appellants, for its deduction did not render the loan usurious, as appears from calculations in the brief of appellees.

The original loan, as evidenced by the deed 'of trust securing it, was for a period of seven years, at' 6 per bent, interest, and if the contract covering this loan had been carried out in accordance with its terms the result would have been as follows: : • •• •.

Appellants contracted to-pay:
Principal :.................................................... $100,000
7 years at 6%........................-..................... 42,000
Total :..................................................... $142,000
But if the appellees be charged with the whole $10,000 which appellants' did not receive, it is undisputed fact that they did receive..:................................$-90,000.00
and interest on that sum for 7 years at TO per cent would be:....-..................-.................................................. 63,000.00
Total..........................$153,000.00

It therefore- appears that appellants contracted to pay a sum $11,000 less than'the amount they admit receiving, with interest calculated át 10 per cent., so that there could have been no usury in the original -loan.

This calculation takes no account of a $1,000 item which' will be discussed in connection with the calculation to determine whether Or not the second' loan was usurious. In'other words, the first loan is not usurious 'even though that item is not taken into account.

The proceeds of the loan were' disbursed by the mortgage company, a large part of if being used in discharging outstanding lien's and incumbrances against the lands mortgaged to appellees, but if is conceded that appellants received'from'this loan at the time it Was made $90,000.

The original loan was-made April I, 1920, and in the' 'fall of that yean it became necessary for appellants ’ to borrow more money. Their live stock and farming implements had been mortgaged to a local bank, and this mortgage had been foreclosed,' and appellants advised appellee that they would be unable to cultivate the land unless an additional loan were made with which to purchase stock and tools and feed and'to pay certain other expenses: Application'whs made for an additional loan of $30,000, but appellee declined to" make, an additional loan for that amount. However, an additional loan of $15,000- was made, and the original deed of trust and the note it secured were canceled and a new deed of trust was given to- secure- both the' original- and the new loan. The new loan, was made at 8 per 'cent., and the'date of final maturity was made the same as that of the original loan.

The second deed of trust was' dated December 1,' 1920, and recited the'execution of two notes signed by appellants and payable-to the order'.of appellees, one being for $100,000 payable 4-1-1927, and the second for $15,000, due 12-1-1921.

It appears that, áftér the consummation of the .original loan, appellee paid appellants" by check $1,000,' and took from appellants a note for that amount, payable on¿ year after date, without interest until after maturity. The explanation of this transaction offered by the managing officer of appellee was that they did ‘not want it to appear that more than 10 per cent, interest had been charged in any one year, although the interest for the entire period of the loan would have been less than 10 per cent, per annum.

It is an undisputed fact' that appellants received this $1,000, and that they executed their noté for the $1,000, but this note was not paid, because,'before its maturity, the new'loan was negotiated.- The'proceeds of the:new loan were also' disbursed by the mortgage company. This additional loan was used in purchasing mules, feed, seed, paying taxes, insurance, and for • other purposes, and checks were introduced — and not questioned — which showed the disbursement of this money. It was out of this $15,000 that the interest on the old loan to thé date of the new loan was paid.

Interest was calculated on the original loan of the $100,000 from- its date to the date of the new loan, and this interest, with the disbursement made by the mortgage company, totaled $15,047.63, exclusive of the $1,000 returned to appellants by appellees. Appellants say this $1,000 should not be taken into account, because it was not-a part of the original loan, being nothing more than a private loan of $1,000 for a,year, and not a part of the secured loan, and that the loan of this $1,000 ran only for one year.

If appellants were not correct in their contention as to the account to be taken of this $1,000, the transaction was not usurious, even though they are correct in all the other contentions made by them.

We do not decide these contentions, among which are these: That the mortgage company was the agent of appellee, and not the agent of appellants. And that the loan was an Arkansas, and not a Missouri, contract, although it was payable in the latter State.

The following calculations show what the result of the second loan would have been if it had been fully carried out, charging appellee with' the $10,000 alleged brokerage fee and crediting it with the $1,000:

Principal note.......................................................................$100,000.00
Interest on this note 6 1/3 years at' 8%...... 50,666.66
Principal note......................................:.............*................. 15,000.00
Interest on this note 1 year at 8 per cent 1,200.00
$166,866.66

. ' Amount borrowers would pay on money actually received at 10 per cent:

Principal advanced 4-1-1920.................................... 91,000.00
Interest at. 10 per cent, for 7 years.................. 63,700.00
Principal advanced 12-1-1920...$15,000.00
Less interest on original loan to date of new loan.............................. 3,665.16
$11,334.84 11,334.84
Interest on net proceeds new loan 1 year at 10 per cent.......................................... 1,133.48
$167,168.32

It appears therefore that the sum which appellants would have heen required to pay,.had the contract been fully completed,.was $301.66 less than would have been paid had the interest on all money received by appellants, including the $1,000, been calculated at 10 per cent/The inclusión or exclusion of the $1,000 as a part óf the loan therefore becomes decisive óf the case when considered only on the facts in issue.,'

, We perceive no reason why the $1,000 should not be,included in the calculation. It is undisputed that appellants- received it, and. did not repay it. It was not a gift, and cannot be considered as a transaction apart from the original-loan and the enlargement thereof.

We. have assumed, in the calculations made,’ that the insurance company wrongfully reserved $10,000 and paid appellants only $90,000, when they should have received $100,000; but, even so, , the $1,000 was received, so .that it is obvious that appellants received, not $90,000,-as. they insist, but $91,000, when this $1,000 is included' in the calculation, as'we think it ,should be.

The $1,000 could have been deducted from ;the $1-5,000 additional loan, as it might have been, or credited on the-sum charged as broker’s fée, but it is a mere matter of accounting to treat it as a part of the original loan, making .that loan $91,000, as we have done in the above calculations', and we think it should be so treated, because' it was received- at-the same time',' or very shortly after, the. $90,000 was received. In other words, it is an undisputed fact that appellants received, nob $90,000, but $91,-000, when the original loan was. consummated. If this $1,000 is taken into the account and figured as a part of the original principal debt, as we think it'should be,' there Was no usury in the transaction,--and the court below was correct in so, holding, and the decree of the'court below is therefore affirmed.