text:
    Old American Insurance Company v. Deloney.
    Opinion delivered February 18, 1929.

      John L. Crank and Brickhouse & Brickhouse, for appellant.

      Feazel & Steel, for appellee.
   Smith, J.

Appellee brought this suit against the appellant insurance company to recover the amount of a policy of insurance issued by the appellant company on the life of appellee’s wife, in which he was the beneficiary'. The company denied liability, upon the ground that the insured falsely represented in her application for insurance that she did not have, at the time of the application, nor had she had, during the two years pre ceding the application, certain diseases mentioned in the application for the policy.

There was a failure to prove that the insured had, or had had, the mentioned diseases, but there was some testimony to the effect that, between the date of the application for the policy and its delivery, the insured had a spell of influenza. At the conclusion of the testimony, defendant requested an instruction numbered 2, reading as follows: “You are instructed that, if you find from the evidence that plaintiff became ill after applying for insurance with defendant company and before the delivery of the policy, and if you further find that the contract of insurance provided that, if applicant became sick during the pendency of the application, the application should then be considered as withdrawn, then your verdict will he for the plaintiff in the sum of such amounts as you find were paid as premiums on said policy, together with 6 per cent, interest thereon.”

The court refused to give the instruction, whereupon defendant asked leave to amend its answer to conform to the testimony, showing a breach of the warranty contained in the application reading as follows: ‘.‘In the event I should become ill or die between the date of the application and before such delivery of the policy to me, then it is agreed that any premium paid with the application shall be returned to me or my legal representative, the application being treated as withdrawn.”

The court overruled the motion, for the reason stated, that the evidence was closed and the witnesses discharged, and this amendment to the answer injected a new issue in the case.

There was a verdict and judgment for appellee, for the reversal of which it is insisted that the court should have given the instruction set out aboye, and should have permitted the answer to be amended to raise the issue covered by this instruction.

The defense that the insured became ill between the date of the application for the policy and that of its delivery was one not raised by the answer nor by the motion to amend it, until after the witnesses had been discharged, and it was therefore a matter of discretion on the part of the trial court whether then to permit this new defense to be interposed, and we are unable to say that the court abused its discretion. Butler v. Butler, 176 Ark. 126, 2 S. W. (2d) 63.

It becomes ■unnecessary therefore to determine whether the instruction correctly interpreted the language of the application quoted above, as this issue was not raised in apt time. The judgment must therefore be affirmed, and it is so ordered.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Howell v. Duty.
    Opinion delivered November 19, 1928.

      Schoonover & Schoonover, for appellant.

      Pope & Booth, for appellee.
   McHaney, J.

Appellant instituted this action to recover damages against the appellees for the alleged breach of on oral contract to rent land from appellee, Roy Duty, for the year 19'27, who, prior to the beginning of the term, sold and conveyed same to E. Duty, who had knowledge of the outstanding rental contract. Appellant was to pay the usual and customary part of the crop as rent for the land, one-fourth of the cotton and one-third, of the other crops. Appellant offered to prove as damages his loss of profits- that he probably would have made had he been permitted to cultivate the land, but the court refused to permit him to make such proof, and ruled that the measure of damages appellant suffered, if any, was the difference between the actual rental value of the land and the rent reserved or agreed to be paid in the contract, and that, since there was no evidence as to what the actual value of the land was, appellant had failed to make a case for the jury, and instructed peremptorily for nominal damages only.

It is conceded by appellant that the former decisions of this court sustain the ruling and judgment of the trial court, but it is insisted that this court has gone too far in its prior decisions, and we are now asked to overrule these cases. We do not agree with appellant in this regard. This rule is so firmly established by the former decisions of this court that we do not think it would be either wise or expedient to either modify or overrule its former holdings. It has been the established rule of this court since 1883, Rose v. Wynn, 42 Ark. 257, that the general rule for the measure of damages in an action by a lessee against his lessor for damages for his refusal or failure to deliver possession of the demised premises is the difference between the rent reserved and the value of the premises for the term, and that, if there be no difference between these values, the lessee can only recover nominal damages, even though the lessor wrongfully refused to give possession. It was there said:

“The books agree that, in an action by a lessee against a lessor for damages for refusal or failure to deliver possession of the demised premises, the general rule for the measure of damages is the difference between the rent reserved and the value of the premises for the term. If the value of the premises for the term, is no greater than the rent which the tenant has agreed to pay, then the latter is not substantially injured, and can in general recover only nominal damages, though the landlord, without just cause, refused to give possession. But, if the value of the premises is greater than the rent to be paid, the lessee is entitled to the benefit of his contract, and this will ordinarily consist of the difference between the two amounts. ”

In McElvany v. Smith, 76 Ark. 468, 88 S. W. 981, 6 Ann. Cas. 458, the court adhered to this same rule, and there said:

“If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess, and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place.”

In Thomas v. Croom, 102 Ark. 108, 143 S. W. 88, the case of Rose v. Wym%, supra, was cited with approval, and the court ag'ain said:

“The measure of damag’es for the breach of this inn plied contract for possession is the difference between the rental value of the demised premises and the rental price named in the leas.e, tog'ether with such .special damag’es as have necessarily resulted from such breach.” See also Andrews v. Minter, 75 Ark. 589, 88 S. W. 822; Young v. Berman, 96 Ark. 78, 131 S. W. 62; Reeves v. Romines, 132 Ark. 599, 201 S. W. 822; Malone v. Wade, 148 Ark. 548, 230 S. W. 579.

It wül therefore be seen that this court has many ■times passed on the question now presented for decision, and has never varied from the rule herein announced. We do not see proper to do so in this case, nor is any good reason advanced why this case should be an exception to the rule.

Affirmed.


author: Humphreys, J.

text:
    Burns v. State.
    Opinion delivered February 18, 1929.

      P. T. Staggs, for appellant.

      Hal L. Norwood, Attorney General, and Pat Me-hajfy, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Hempstead County for manufacturing alcoholic, vinous, malt, spirituous and fermented liquors, and was. adjudged to serve a term of one year in the State Penitentiary as a punishment therefor, from which verdict and judgment he has duly prosecuted an appeal to this court.

Appellant assigns as reversible error the insufficiency of the testimony to support the verdict and judgment, contending that there is no substantial evidence in the record to support them. It is argued that, because the officers who found the liquor and arrested appellant were unable to state the per cent, of alcohol it contained and to state definitely that it would intoxicate a person, they only surmised that it was intoxicating, and that it was an inference on their part, and purely conjectural. Both of the State witnesses testified that the liquor contained alcohol. Witness Booker determined this fact from smelling and tasting the liquor.” Witness Lewellen concluded that it contained alcohol on account of its odor. Booker also testified, on direct examination, that it was intoxicating. The attending facts and circumstances were corroborative of their testimony. When they went to appellant’s home he informed them that he did not live there, but lived up at his- father’s on the hill. They went up there, and, after making a search, found no liquors, hut ascertained that appellant lived where they first found him. They returned, and found liquor which had been poured out on the ground in the back yard. They also found a keg practically empty, which' contained about a tablespoonful of liquor. Booker tasted the liquor in the keg. They also found three or four crates of bottles and a capper in the house. Appellant told the officers that if they would tell him where they got their information he would inform them where there wasi another outfit just like his.

We cannot agree with appellant that the testimony thus detailed, in substance, is insufficient to support the verdict and judgment.

Appellant also cites the cases of Sheridan v. State, 159 Ark. 604, 252 S. W. 579, and McCoy v. State, 177 Ark. 1053, 9 S. W. (2d) 241, in support of his contention, but neither case is parallel in its facts to the instant case. In the Sheridan case the witnesses did not profess to know whether the liquor contained any alcohol, and in the McCoy case the witnesses did not testify that either one of them tasted the liquor and found it contained alcohol, or that it was intoxicating.

Appellant also assigns as reversible error the refusal of the court to instruct the jury that, unless they found that he manufactured intoxicating liquors, they should acquit him. The 'court instructed the jury that, unless they found from the evidence, heyond a reasonable doubt, that appellant made or manufactured either vinous, malt, spirituous, or alcoholic liquors, it would be their duty to acquit him. The court instructed the jury in the language of the statute under which appellant was indicted, and each hind of liquor mentioned therein is intoxicating. Alcohol means intoxicating liquor, and to have given appellant’s, requested instruction would have been a repetition of what the court had already .told them. Trial courts are not required to repeat instructions of like tenor and effect.

No error appearing, the judgment is affirmed.


text:
    Moran v. State.
    Opinion delivered February 18, 1929.

      O. E. Williams and John G. Waggoner, for appellant.

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

Appellant was indicted, tried, convicted and sentenced in the'circuit court of Lonoke County to pay a fine-of one hundred dollars and to serve thirty days in jail on an indictment charging him with criminal libel, in the following- language, omitting the formal parts:

“Unlawfully, willfully, maliciously, did defame by causing to be printed, and by writing, and caused to be published of and concerning Jack See, Arthur Eobinson and Joe Wilson, in words and figures as, follows: (Then follows the alleged libelous printed circular, consisting of fifty-seven interrogative and affirmative statements, each beginning with, “Did you know,” etc., or “Do you know,” etc.) which words in their common acceptation are false, and tended to and did impeach the honesty, integrity and veracity, virtue and reputation of the said Jack See, Arthur Eobinson and Joe Wilson, who were at the time living, and thereby did unlawfully, willfully, maliciously and falsely expose the said Jack See, Arthur Eobinson and Joe Wilson to public hatred, contempt and ridicule, against the peace and dig-nity of the State of Arkansas.”

The above indictment was based on § 2390 of Crawford & Moses’ Digest, which reads as follows: “A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures or the like, tending to blacken the memory of one' who is dead, or to impeach the honesty, integrity, veracity, virtue or reputation, or to publish the natural defects of one who is living, and thereby expose him to public hatred, contempt and ridicule.” The penalty for a violation of said section of the statute is. fixed by § 2391 of Crawford & Moses’ Digest, and is as follows: “Every person, whether writer, printer or publisher, convicted of the crime of libel, shall be fined in any sum not exceeding five thousand dollars, and may also be imprisoned not exceeding one year.”

(1). Appellant demurred to this indictment on the ground that it does not state the offense with such a degree, of certainty as to enable the defendant to know what he is charged with in order that he may prepare for his defense and meet the issues.

Appellant is in error in this contention. The indictment charges the offense substantially in the language of the statute, and the alleged libelous article consisted of a printed circular making certain statements regarding Jack See, Arthur Robinson and Joe Wilson, in the form of interrogative accusations which directly tended to impeach the honesty, integrity, virtue and reputation of all three parties. These statements, which we do not deem it necessary to set out herein, were libelous per se, and the appellant could not misunderstand the nature of the offense with which he was charged.

(2). It is further urged as a ground of demurrer that the indictment is defective because it did not point out the particular questions or statements that were alleged to be libelous. This was not necessary. The fact that several of the statements referred to other parties were properly inserted in order to show the connection between the statements made about the persons named in the indictment with the other matters contained therein. Several of the statements contained in the circular called these gentlemen by name, and accused them of unlawful acts and immorality.

(3). It is further said that the indictment is bad in that it charges more than one offense in the same indictment, contrary to the provisions of § 3015 of Crawford & Moses.’ Digest, and several decisions of this court, cited by appellant.

The indictment charged only one offense, that of libeling three persons. A person may be guilty of libeling two or more persons in one written statement, and we know of no rule of procedure that would prevent the offender from being indicted therefor under one indictment. The cases cited by appellant in this regard are not in point. If a person be indicted for selling liquor to Smith, and Jones, proof that he sold to either would he sufficient to support a conviction. So here the indictment charges that appellant libeled See, Robinson and Wilson, and proof that he libeled either or all would support a conviction.

(4). It is next said that the court should have given appellant’s request for a peremptory instruction at the conclusion of the testimony, on the ground, among others, that, although the venue was laid in Lonoke County, no testimony was introduced to show that appellant caused the alleged defamatory article to be written, printed or published in Lonoke County, where the venue wasi laid. There is no proof .at all in the record tending to show that the article was written in Lonoke County. The testimony introduced by the State tended to show that the article was printed by Frank Porbeck, in Pulaski County. Frank Porbeck, a printer in Little Rock, testified that appellant brought the article to him in typewritten form to be printed, and delivered it to him personally in Little Rock, and that he printed five hundred copies of it, after appellant read the proof; that the article was dated Pasadena, California, August 13, 1927, and signed “Karl;” that, while he was at lunch, the original and printed copies of the article were delivered to some one by the office boy, named Steele, who is now in Canada; that the office boy had authority to deliver supplies and receive the money therefor.

Copies of the article were mailed in Pasadena, California, to many persons in Lonoke County, in and about Cabot, the home of the prosecuting witnesses. Several witnesses testified that they knew appellant was the author of the article, because they were familiar with his style of writing, and that he had written other letters like the one set out in the indictment.

Appellant denied writing the article, or that he delivered it to Frank Porbeck to be printed, or that he got the original and printed copies thereof' from the office boy in Porbeck’s office, or that he mailed copies of the printed article, or had them mailed from Pasadena, California, to parties in Lonoke County. There is no testimony in the record to the effect that appellant published the printed copies of. the article in Lonoke County. Two inferences must be indulged, one dependent upon the other, to show that appellant published the printed copies of the article in Lonoke County, the first being that the office boy delivered the printed copies of the original' article to appellant at Porbeck’s printing office, and the second being that appellant either took them or sent them to California and mailed them at Pasadena, California, to parties in Lonoke County. It is not allowable, under the rules of evidence, to draw one inference from another, or to indulge presumption upon presumption to establish a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry .the deduction into the realm of speculation and conjecture.

"We do not think the venue was shown, and for that reason the judgment is reversed, and the cause remanded for a new trial.

Hart, C. J., Smith and McHaney, JJ., dissent.


author: Kirby, J.

text:
    Scott v. Miller.
    Opinion delivered February 18, 1929.

      8am T. Poe, Tom Poe and McDonald Poe, for appellant.

      Ira J. Mach, for appellee.
   Kirby, J.

Appellant insists that the chancellor erred in not holding that the fund could be impressed with a trust, and that the testimony warranted a decree in her favor.

It appears to be well settled law, in the absence of statutes providing otherwise, that a trust in personal property may be declared, created, or admitted verbally, and proved by parol testimony. It is said in K. C. L.:

“In some jurisdictions an express trust cannot be created by parol, even as to personal property, but the great weight of authority is to the effect that the statute of frauds does not extend to trusts of personal property, and that such trusts may be created and proved by parol. In accordance with this rule it has been uniformly held that an oral promise by a beneficiary in a life insurance contract to pay the proceeds of such policy or a portion thereof to a third person is a valid and enforceable trust.” 26 R. C. L., p. 1194. See also 3 Pomeroy’s Equity (4th ed.) §§ 1008, 1009, pp. 2232-39; Chew v. Brumagen, 13 Wall. 497, 20 U. S. (L. ed.) 663; Hirsh v. Auer, 146 N. Y. 13, 40 N. E. 397, 398; Catland v. Hoyt, 78 N. E. 55, 5 Atl. 775. The rule of evidence for the establishment of such a trust, however, is different' from the general preponderance rule insisted upon by appellant, clear, convincing and satisfactory evidence being required. 3 Pomeroy Equity, supra.

It is stated in R. C. L. that the same degree of proof should be required — clear, convincing and satisfactory evidence — to prove such an express trust as to establish a resulting trust. 26 R. C. L., pp. 1203, 1231, § 44, § 77; see also Colegrave v. Colegrave, 89 Ark. 182, 116 S. W. 190, 131 Am. St. Rep. 82; Bray v. Timms, 162 Ark. 247, 258 S. W. 338; Scoggin v. Scoggin, 176 Ark. 1009, 4 S. W. (2d) 953.

The majority of the court is of opinion — in which the writer does not agree — that the proof of appellant is not sufficient to meet the requirements of the rule or establish the trust, and the case must be accordingly affirmed. It is so ordered.


text:
    Weldon v. State.
    Opinion delivered February 18, 1929.

      Berry H. Randolphf for appellant;

      Hal 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 assault with the intent to rob one Bnd Smith.

Bnd Smith detailed the circumstances, and stated that, when he had stopped his ear at the forks of the road on the night of the robbery, on the way back from Ozark Lithia Springs to Hot Springs, on a bright moonlight night, about 8:15, the defendant and appellant walked up and “threw a gun on him,” and told him to get out of the car, to which he replied, “What is this, a stick-up?” Appellant said, “Yes,” and, while he talked further with appellant, he took out his watch and put it down on the seat. Appellant made him get out of the car, and took him over and searched him, and came back to the car and looked over it with his flashlight, and took the watch. He reported the robbery, and appellant' was arrested next morning, and identified by him. Smith stated that he positively identified the appellant as the man who robbed him, and denied that he had not been positive about his identification of appellant in the examining trial, although he admitted that he might have said that he could be mistaken.

Appellant relied upon an alibi as a defense, and introduced testimony in support of his plea, also some witnesses who stated what appellant had testified to in the examining court, Judge Ledgerwood among the number, who testified that, in answer to the question from defendant’s attorney, “Bud, is there not a chance of your being mistaken as to the identity of the defendant?” Smith replied, saying, “Yes, there is always a chance for one to make a mistake.”

There were no objections to the court’s charge to the jury, and the only contention here is that the testimony, is-insufficient to support the verdict.

Smith, the injured party, however, positively identified the appellant as the man who had presented a gun against him, searched and robbed him, and that testimony was sufficient to warrant the verdict, the weight of the evidence and the credibility of the witnesses being for the determination of the jury. Canada v. State, 169 Ark. 211, 275 S. W. 327; Cox v. State, 160 Ark. 283, 254 S. W. 542; and Nelson v. State, 139 Ark. 13, 212 S. W. 93.

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


author: Mehaffy, J.

text:
    Price v. Williams.
    Opinion delivered February 18, 1929.

      J. R. Linder and Brundidge & Neelly, for appellant.

      John E. Miller, for appellee.
   Mehaffy, J.

On October 25, 1923, A. L. Bland was indebted to W. C. Cross in the sum oí $600, and on that day executed his promissory note for said sum, and gave a deed of trust upon certain lands in White County to secure the payment of said debt. After Bland had paid a portion of the debt, W. C. Cross transferred and assigned the note and deed of trust to John P. Williams, on the 31st day of August, 1925. On January 14, 1926, A. L. Bland was indebted to John P. Williams in the sum of $200, and executed his note for said sum, which became due on July 14,1926. The following is a copy of the note given by Bland to Williams:

“$200 Beebe, Ark., Jan. 14, 1926.
“On or before the 14th day of July, 1926, for value received, I or we agree to pay to J. P. Williams, or order, two hundred dollars, with interest at 10 per cent, per annum from date until paid, negotiable and payable at Beebe, Arkansas, it being for money advanced on land, to-wit: S'%, NE pt. SW-NW 17-5-16 acres, more or less, this amount to be added to the original mortgage to W. Cl Cross transferred to J. P. Williams and this day delivered to the maker of this note, with the understanding and agreement by and between the maker of this note and J. P. Williams that the title of above described property is and shall remain, with full power of disposition without notice, in such manner as he may see fit, in said J. P. Williams, until all indebtedness on above mentioned stock is paid for in full.
His
Lat X Bland
Mark
“Due July 14, 1926.
“Witness: J. E. Turnage.
(Indorsed) “Filed May 29, 1928. Ben D. Smith, clerk.”

Bland having failed to pay Williams the Cross debt and also the $200, suit was brought by Williams to foreclose the deed of trust on the property. The deed of trust ran to W. C. Cross and to his heirs and assigns. After the assignment of the note and deed of trust to Williams, and after Bland had executed the note to Williams above set out, on the 13th day of November, 1926, A. L. Bland conveyed the land described in the deed of trust to G. W. Price.

Bland, in his answer, admitted the execution of the note to Cross, and admitted that there was a balance due, and also admitted that he was indebted to Williams in a small amount unsecured. He further alleged that he had conveyed the property to Price, and that Price had assumed all indebtedness due to Cross from Bland.

Price filed an intervention, admitting- that he bought the lands from Bland, and agreed that he was to pay the balance due to W. C. Cross. He alleged that he had no notice that J. P. Williams was claiming a lien on the land for the amount due him, until the filing o.f the suit. He alleged that he is. ready and willing to pay the Cross note.

Plaintiffs filed a reply to Price’s intervention, denying the allegations in said intervention.

The evidence was undisputed about the original indebtedness from Bland to Cross, and about the note and mortgage, and about the balance due on said mortgage. But Bland testified that he did not agree for Williams to have a lien for the $200 note. He also testified that he only gave a note for $50, that he borrowed $50 from Williams and gave his note. However, the testimony of Williams and Turnage, justice of the peace, who wrote the note and witnessed Bland’s mark, testified that he executed the note for the $200, and the testimony shows that the Cross mortgage should cover this indebtedness as well as the original indebtedness to Cross.

There is some conflict in the testimony, but the chancellor’s finding is sustained by the preponderance of the evidence, and it is unnecessary to set out the testimony in detail.

The deed of trust was written on a blank used by the Union Bank & Trust Company, and, while the mortgage was made by Bland to Cross, the name of Union Bank & Trust 'Company was left in by mistake, so that the mortgage read, as to indebtedness other than the note: “Also as security for the payment of any other liability or liabilities of the grantor already or hereafter contracted to the said Union Bank & Trust Company.” Cross being the mortgagee, of course it was understood that this meant indebtedness to him, and, the printed form being used, the parties overlooked the name of the bank being printed in blank, and neglected to strike it out and insert the name of Cross.

The deed of trust did not properly describe the land, and suit was not only to collect the debt and foreclose the mortgage, but also to reform the mortgage or deed of trust before foreclosure. The ¡chancery court entered a decree reforming the mortgage and ordering the land sold to pay the balance of the original debt due Cross and also the debt due Williams.

The appellant’s first contention is that the description in the deed of trust from Bland to Cross does not contain' a description of the land in controversy, and does not contain such a description as from it the land could be located. In the first place, there was a sufficient description of the land to put any person on notice and enable them to locate the land. Besides that, both Bland and Price knew what land it was, and each of them knew that it was the only land that Bland owned in White County. But, in addition to this, this question was not raised in the lower court, and it cannot be raised here for the first time. The complaint asked for a reformation of the deed, and neither Bland nor Price made any contention or suggestion about the improper description of the land. They admitted the indebtedness, and alleged a willingness to pay the original debt to 'Cross, and Bland also admitted the other indebtedness. Not having raised the question as to the description in the lower court, they cannot raise it here.

Appéllant’s second contention is that Price would only be liable for the amount of $240.03, and states that Price had no notice, either actual or constructive, of any indebtedness due by Bland to Williams, and that for that reason the land could not be sold to pay this debt to Williams. Price, however, did have record notice of the fact that the note and mortgage had been assigned to Williams by 'Cross-, and he admits that- he knew abont it, and that Bland told him -about it. Therefore, when Price bought the property he -bought it with a knowledge that the original mortgage was made to Cross and his assigns, and with the knowledge that the note and mortgage were assigned to Williams.

As a general rule, the assignee of a mortgage or deed o.f trust has all the rights thereunder that an assignor has. And in this case Williams had all the rig*hts that Cross had; but the appellant says that it is their contention that the mortgage does not secure the indebtedness evidenced -by the $200 note given by Bland to Williams, and that Price, being an innocent purchaser for value, took the land free from any liens that Williams might have. They say, however, that Williams could doubtless hold the land for any indebtedness due at the time of the transfer of the Cross mortgage, but that he could not impress a lien upon the land against a third party simply by executing a new note and providing in it that the original mortgage should stand as a mortgage for the new note. It will therefore be seen that there is no controversy about the original indebtedness, to Cross, but it is contended that the debt to Williams is not secured by the mortgage; that there is no lien on the land as against Price for the $200 note.

The mortgagor and holder of the mortgage had a right to make any contract or agreement that they wished to make. Neither is a trustee for the other, and they may validly make any contracts or arrangements with each other in regard to the subject of the mortgage or the indebtedness between them, and such agreements are treated as any other contracts would be. 41 C. J. 602.

There is no dispute about the fact that Bland and Williams made this contract. That is, there is no dispute about Williams lending Bland $50 and Bland executing his note. Bland, it is true, swears that he only signed a $50 note, and did not agree for it to be a lien. He is, however, contradicted by Williams and Turnage, and the note itself shows that the agreement was that the $200 should be covered by the original mortgage and should be a lien on the land. Unquestionably Bland and Williams had a right to make this contract, but it is contended that it is not binding so far as Price is concerned. We think a complete answer to this is that the mortgage itself showed that it provided for future advances, and provided that the future advances should be secured by the mortgage. And Williams, the assignee, having all the rights that Cross had, he simply took the place of Cross in the mortgage, and advances by him were secured by the mortgage just as advances made by Cross would have been secured by the mortgage.

“Now, as to the $1,500 advanced by the assignee of the mortgage to the bankrupt on the 4th of December, 1920, there is nothing in the evidence to indicate that this money was advanced under the cover of this mortgage for the purpose of preferring any creditors over another. Of course, a mortgage cannot be used as a vehicle 'by which to prefer a creditor. Money loaned by mortgagee, who knows that the money is to be used for the purpose of preferring creditors, would not be protected as a mortgage lien claim under the Bankruptcy Act. However, with reference to the $1,500, it is not disclosed that there was any intention on the part of the bankrupt or the party loaning the money to use the proceeds of this loan for the purpose of creating a preference. The most that is said about the uses of the money was. that it was to pay bank interest for the purpose of keeping the Great Lakes Lumber Company in condition to go along as a going concern, and this would not be evidence from which to find that the mortgage was to be used as a vehicle for creating a preference. We are of the opinion that the referee was- right in holding that this sum of $1,500 was an advancement under the mortgage for a present consideration, and therefore valid. The except-ants in this case urge that the clause in relation to future advances contained in the mortgage was a personal one to the mortgagee, and that it did not apply to the assignees of the mortgage. The mortgage, however, ran to the mortgagees, their attorneys, executors, administrators, and assigns, and we think the assignees of the mortgage are within the provision with reference to advancement and are entitled to protection for advances which they made under the mortgage.” In Re Great Lakes Lumber Co., 8 Fed. (2d) 96.

The mortgage in the instant case ran to the assignees, and therefore the assignees of the mortgage are within the provisions with reference to advancement, and are entitled to protection for advances which they made under the mortgage. Transactions whereby assignees of mortgages make future advances are frequently made. It is a general custom in this country for planters and farmers and others to execute notes and mortgages for money and future advances. If the mortgagee should .sell out his business and assign the notes, and mortgages, the assignees could continue to carry out the contract, make future advances, and be secured by the mortgage exactly as the original mortgagee would be.

It has been repeatedly held that an assignee takes a note -secured by mortgage exempt from any equities residing in a third person to which it might be subject in the hands of the assignor. 41 C. J. 695; Jones on Mortgages, vol. 2, page 454-5.

There is no contention that the mortgage would not have secured any debt due from Bland to Cross or any advances made by Cross, and the weight of authority is to the effect that the assignee occupies the samé position with reference to the mortgage and with reference to future advances that the assignor did; and that a third person cannot defeat the right of either the mortgagor or his assignee by purchasing the mortgaged property. The mortgagor, of course, has the right to sell or convey the mortgaged property. But by doing so he not only does not relieve himself from liability, but he does not affect the security or the mortgagee’s right to foreclosure.

A mortgage on land is not extinguished nor its lien divested by the sale of the premises to the purchaser who has notice of the mortgage, as Price did in this case. But whatever title he gets is subject to the mortgage, and is no better and no stronger than that of his vendor. 41 C. J. 712.

The purchaser of land acquires the title, rights and equities of his grantor, and no more. And in the instant case'Price is in no better position than Bland himself would have been. The same rule that binds Bland binds his privies, his purchasers.

Appellant calls attention to numerous authorities holding, in effect, that each instrument must be interpreted according to its particular language, and that, when a mortgage is given to secure future advances, it means advances furnished within a certain time. But there is no limitation in the mortgage in this case. It provides that the mortgage shall be security for the payment of any other liability or liabilities of the grantor, already or hereafter contracted, until the satisfaction of the mortgage. Construing this part of the mortgage according to the rules suggested or announced in the authorities cited, the mortgage necessarily, by its very language, includes liabilities already created or any that may be created hereafter, until the satisfaction of the mortgage. And of course there is no contention that the mortgage was satisfied.

Our conclusion is that the assignee has all the rights and equities that the mortgagee did, and that the mortgage secures future advances made by the assignee the same as if made by the original mortgagee, and that Price occupies no better position than his vendee, Bland.

The decree of the chancery court is therefore affirmed.

Smith and Kirby, JJ., dissent.


text:
    Ham v. State.
    Opinion delivered February 18, 1929.

      D. F. McElhanon, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Mehaffy, J.

The appellant was indicted in Clark County, charged with the crime of murder in the first degree. It is alleged that he committed the crime by shooting and killing L. B. Harrison, on the 25th day of July, 1928.

A motion for continuance was filed by the defendant, and overruled, and exceptions saved. Defendant then filed a motion to quash the special panel of the petit jury, which motion was also overruled, and exceptions saved. The case was tried on 'September 15,1928, and appellant was convicted of murder in the second degree, and his punishment fixed at seven years in the penitentiary. Motion for new trial was filed, overruled, and aippellant prosecutes this appeal to reverse the judgment of the circuit court.

The appellant and Harrison were at a filling station on the Arkadelphia and Gurdon road, on the day of the killing, and they, together with Gerald Bishop, got in a car and drove down the road a short way; they went to an old slaughter-pen, and got some whiskey. After they had been together for some time, Harrison, the deceased, got in his car and left for Gurdon. Both the appellant and the deceased had been drinking. About four o’clock in the afternoon the appellant and Gerald Bishop went down the road in a car in the direction that Harrison had gone. Bishop, who was with Ham, and Ham both testified that they were going to Ike Halsell’s to get a saddle for Ham, and they found Harrison’s car in a ditch, and offered to help him get it out, hut he was drinking, and began cursing. He got out his gun, and made Bishop leave.

Bishop testified that defendant had two guns', one in his right hip pocket and the other in his shirt bosom. After Bishop* left, Ham went in his car down the road, and in about thirty minutes came back and said his car was stuck. They got Harrison’s car out, and went down to where Ham’s car was, to pull it out. Bishop got in Ham’s car and drove it up past Harrison’s car and up the road a little way. Harrison made them, according to their testimony, drink more whiskey, and threatened Bishop, and Bishop walked back up the road about 75 yards, and heard some words, and then heard four shots fired. He started in the direction where Ham and Harrison were, and met Ham coming out in his car. He got in the car with him and asked him where Harrison was, and Ham said: “You don’t know.” They went on, finally reaching Arkadelphia, and in doing so they went around about ten or twelve miles.

The appellant did not tell anybody about the lulling until after he was arrested. The appellant testified that he killed the deceased in self-defense; that deceased had a gun, and that lie killed him because he had to do it. That he had gone down to Halsell’s. to get a saddle; the Bishop boy went with him, and they offered to get Harrison’s car out of the ditch, and that Harrison was doing a good deal of cursing, and said they were going after liquor. Deceased had his gun out, and, when Bishop walked away up the road around the curve, Harrison called him a name, and said he wasn’t looking for anybody, and that Ham promised not to bring Bishop down there, and that he was going to shoot appellant. He pulled his gun, and appellant .backed off; then deceased still threatened to shoot him, and the appellant could not get to his car, and was afraid he was going to hurt some one, but that, when deceased saw that appellant was fixing to get in his car, he prepared to shoot. Appellant knocked his gun out of his hand, and picked it up, expecting to leave, but, as he rose with the gun, deceased was pulling another gun from his shirt bosom; had pulled it far enough out so appellant could see the handle, and then he shot him with the gun he picked up. He did not know what he did with the gun afterwards. Deceased was shot four times.

Numbers of witnesses testified, but there is some conflict in the testimony, and it would serve no purpose to s,et it out in detail.

Appellant’s first contention is that the court erred in overruling his motion to quash the special panel of the petit jury. The special jurors were not selected by jury commissioners, but the court directed the sheriff to summon them, which the sheriff did.

Appellant’s attorney said: “It is agreed by the State that the following named jurors, to-wit, * * *, were not selected by the bystanders, but selected by the sheriff,” whereupon the court said: “Now, didn’t you agree that that jury be summoned?” Appellant’s attorney said: “No sir, I just suggested that we have extra men, but I wanted them selected.” The court: “I know, but you did agree that the court could direct the sheriff to summon men to be here?” Whereupon the attorney for the appellant said: ‘‘I rather suggested to Mr. Carrigan that we have special men here, but 1 wanted them selected according to what I thought was the law.” Appellant’s attorney said: “Let the record show that at this present term of the court, at the time this case was passed over until this 14th day of September, 1928, the attorney for the defendant suggested that a special panel be had the day of trial.” And the court then said: “And that the court ordered the sheriff to summon a special panel of thirty men, and the State agrees that this special panel were summoned by the sheriff in pursuance of that order of the court, the special panel of jurors not to be resorted to until the regular panel were exhausted in the selection of the jury in the case.” Appellant’s attorney said: “And the defendant excepts to the special panel for the reason that they were not selected by the jury commission, as provided by §§ 6352 and 6354 of Crawford & Moses’ Digest.” He further said: “After the regular panel had been exhausted, when the special panel summoned by the sheriff were called for the purpose of being impaneled as jurors, the defendant at the time objected and excepted to the special venire.”

They objected to the selection of the jury from the special venire for the reason that they have not been selected as provided by the above named sections,

The court thereupon overruled the motion to quash panel summoned ¡by the sheriff.

This case, as the record shows, was tried at an adjourned term of the court. The court had, convened in Clark County on the 23d day of July, and the defendant was not tried until the 14th day of September. Before the court adjourned, the attorney for the appellant admitted that, while he did not agree that the jury be summoned, he suggested that they have extra men, but he wanted them selected according to what he thought the law was. It does not appear from the' record that he suggested at that time that he wanted them selected in any particular manner.

The appellant was arrested, and on the 25 th day of July the court set the case for Thursday of the second week, which would he August 2. On the 2d day of August the appellant filed his motion for a continuance, and the court thereupon set the case for hearing on the 14th day of September, 1928. The case was therefore postponed until the adjourned term at the request of the appellant. It is. true that he wanted it continued until the next term of court, hut the question of postponement or continuance was in the sound discretion of the court, and it would appear that from the 2d of August until the 14th of September would give appellant ample time to prepare for the trial.

While the statute provides for the selection of jury commissioners and the selection of jurors by them, the statute provides that the circuit court shall select jury commissioners possessing the qualifications prescribed for petit jurymen, etc. And then the section referred to by appellant provides the. manner by which the jury commissioners shall perform their duty. Section 6377 provides that if, for any cause, any of said jurors shall, at any time, be released from serving for the balance of the term, others! shall be summoned and sworn, so that there shall be at all times a panel of twenty-four regular jurors. Section 6378 provides: “If a jury for the trial of any case cannot be obtained out of said panel of regular petit jurors, bystanders shall be summoned, as the court may direct, to complete such jury, and the oath mentioned in § 6375, adapted to that particular cause, shall be administered to said 'bystanders, and the record shall contain the names of said bystanders, together with the statement that they were selected and sworn according to law.”

There is nothing in the record to show how many jurors constituted the panel when court met on the 14th of September. Evidently both the State and the defendant assumed that other jurors would have to be summoned; the defendant’s attorney suggested that other jurors be summoned, and tbe court thereupon directed the sheriff to summon 30 additional men.

It appears from the record in this case that § 6378 of Crawford & Moses’ Digest was complied with. It appears that the jury could not be obtained out of the regular panel, and that the court ordered 30' additional men summoned. But the appellánt insists that the section mentioned directs that they be summoned from the bystanders, and argues that the men selected by the sheriff were not bystanders. Of course, it may happen at any term of court that the petit jurors selected by the jury commissioners would be disqualified in a particular case, or a sufficient number of them be disqualified until it would be impossible to get a jury without summoning bystanders. It appears that this was true in this case. It dearly appears, from the attitude of both the State and the appellant that additional jurors were necessary, and, if that were true, the court would have to order other jurors selected, and the statute provides that it must order them selected from bystanders. In the case of Commonwealth v. Sacco, 255 Mass. 369, 151 N. E. 839, the court said:

“At the trial the contentions of counsel for the defense were, that the extra jurors should have been summoned from bystanders, and not taken from the jury list of the county at large, and that the sheriff had no right to use his own judgment in selecting names from the jury list. There was no contention that the names were not taken from the jury list; but, had that objection been so made, it would not have affected the whole panel, and therefore is not a ground of challenge to the array. It does not appear that this objection was raised with reference to any particular person called to serve as a juror. * * # yr0 fralxd or partiality in favor of the Commonwealth or material injury to defendants is shown. It was a question of fact to be passed upon by the court, whether or not only talesmen were selected who would be likely to favor the Commonwealth, and the judge’s finding that they were impartially selected is final, no abuse of discretion appearing*.”

‘‘ Bystander ” does not necessarily mean a person in or about the court room. The fact that be is in the court room or about the court room, or in the city where the case is tried, does not alone constitute such person a bystander. He is not a bystander in the sense of the statute unless he has no interest in the business or trial in the court. But a bystander means a qualified juror summoned by the sheriff from the county at large. Baker v. State, 79 Tex. Or. Rep. 510, 187 S. W. 949; Bennett v. State, 161 Ark. 496, 257 S. W. 372; Pate v. State, 152 Ark. 553, 239 S. W. 27; Rogers v. State, 133 Ark. 86, 201 S. W. 845; Sullivan v. State, 163 Ark. 11, 258 S. W. 643.

The court therefore did not commit error in denying defendant’s motion to quash the special panel.

It is next contended by the appellant that the court erred in overruling defendant’s motion to excuse jurors Tom Gibbon, W. A. Calloway and Dick Ward for. cause. These jurors testified that they had formed an opinion, but they had not formed an opinion from hearing the facts or hearing the witnesses’ testimony. The opinions of these jurors were based on rumor, and in each case the juror stated that he would disregard any opinions he might have formed and base his verdict upon the testimony. With the means of communication and information now at hand, if every person who had heard rumors about the case and from that had formed an opinion was disqualified as a juror, it would, in many cases, be very difficult, if not impossible, to get a jury to try a certain case. But the purpose of the law is- to get persons who can and will try the case fairly and base their verdict on the law and the evidence. Of course, if their opinion is based on facts within their knowledge, or evidence that they have heard, they would not be competent jurors. But the fact that they have formed or expressed an opinion does not disqualify them from serving on the jury if the opinion is based on rumor. Corley v. State, 162 Ark. 178, 257 S. W. 750; Poindexter v. State, 165 Ark. 614, 263 S. W. 375; Cobb v. State, 175 Ark. 1169, 299 S. W. 360.

Appellant insists that the court erred in permitting the prosecuting attorney to ask defendant if he had not, just a few days ago, killed a negro. This was on cross-examination, and this court said, in asking a witness on cross-examination how many times he had been fined and pleaded guilty for fighting or other offenses, that this was a proper question on cross-examination in affecting the credibility of the defendant as a witness. But the court also said that the defendant answered the- question in the negative, and no prejudice could have resulted to him from the question when it was considered in connection with the answer. Bowlin v. State, 175 Ark. 1047, 1 S. W. (2d) 546.

In the instant ease, no prejudice could have resulted, because the witness answered the question in the negative. But there was no error anyway, because it was proper on cross-examination as. affecting his credibility. Shinn v. State, 150 Ark. 215, 234 S. W. 636.

This court has said: “It was competent for the State to cross-examine the accused concerning prior unlawful or immoral conduct, regardless of time, for the purpose of testing her credibility.” DuVal and Rice v. State, 171 Ark. 68, 283 S. W. 23; Bowlin v. State, 175 Ark. 1115, 1 S. W. (2d) 553; Barron v. State, 155 Ark. 80, 244 S. W. 331; Groning v. State, 155 Ark. 85, 243 S. W. 959; Lewis v. State, 155 Ark. 205, 244 S. W. 458; Davis and Smith v. State, 169 Ark. 942, 277 S. W. 17.

This court has recently held in several cases, that, on cross-examination of the person charged with crime, he may be asked about other crimes, for the purpose of affecting his credibility. And the questions asked on cross-examination of Ham were proper, and, as we have already said, could not have been prejudicial because the question was answered in the negative.

The appellant next contends that the court erred in giving and refusing instructions. The instructions are quite lengthy, and it would serve no useful purpose to set them out at length. It is sufficient to say that we have carefully considered all of the .instructions, and have reached the conclusion that the instructions as a whole clearly stated the law to the jury. In fact, some of the instructions complained about, or rather, some of the modifications, made the instructions more favorable to the appellant than the instructions were without the modifications. Every feature of the case was covered by the court’s charge, and there was no error either in giving’ or refusing any instruction..

We find no error, and the case is therefore affirmed.


author: McHaNey, J.

text:
    West v. State.
    Opinion delivered February 18, 1929.

      L. F. Monroe aud Dexter Bush, for appellant.

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

Appellant was convicted for possessing a still, and sentenced to one year in the penitentiary. He has not favored us with a brief in his behalf. In his motion for a new trial he says, the verdict is against the law and the evidence. It is against neither. There was ample evidence to send this case to the jury. Two witnesses testified that they found a new copper still, cap, stillworm and connecting tube in appellant’s smokehouse, located about twenty feet from his residence. They also found a barrel of rye mash and several empty kegs that smelled of liquor, and about three gallons and a half of wine, which tasted like corn liquor flavored with wine. Appellant denied that he possessed the still, or knew that it was in his smokehouse. The evidence was sufficient. Martin v. State, 163 Ark. 103, 259 S. W. 6; Bradley v. State, 171 Ark. 1083, 287 S. W. 387. The instructions of the court were the usual instructions, in cases of this kind, including presumption of innocence, burden of proof, and reasonable doubt. No objections or exceptions were made or saved to the instructions, and no request for any instruction was made by appellant.

Another assignment of error in the motion for a new trial is that the court erred in overruling appellant’s motion for a continuance on account of the absence of Lewis Marks. The record shows that on October 12,1928, appellant’s ease was set for trial for Tuesday, November 13, 1928, more than one month, during which appellant had ample time to get a subpoena served on Lewis Marks, which he did not do. Appellant testified at the trial that he thought Lewis Marks was in Prescott at the time. No diligence is shown, and the court correctly overruled his motion for a continuance.

Another assignment of error is that the court erred in refusing’ to permit Claude West to testify that Lewis Marks told him that the still found in appellant’s smokehouse belonged to him, Lewis Marks, and that the defendant had nothing whatever to do with it. This was purely hearsay, and inadmissible. Moreover, appellant could be guilty of possessing a still which belonged to Lewis •Marks. It is not necessary to be the owner of the still in order to be guilty of possessing it. Of course, if he did not own the still and did not know it was in his smokehouse, he would not be guilty, and the court so told the jury.

These are all the assignments of error in the motion for a new trial, and, as we have seen, none of them are well taken.

Affirmed.


text:
    Wallace v. Wallace.
    Opinion delivered February 18, 1929.

      U. A. Gentry and Feasel & Steel, for appellant.

      W. C. Rodgers, for appellee.
   McHaney, J.

Josiah H. Wallace, celibate, late of Saratoga, Howard Connty, Arkansas, died testate, his will, omitting- formal parts, and numbering the several paragraphs for convenient reference, being as follows:

“ (1). I make the following special bequests: To my business partner, W. L. Ellis, Saratoga, Arkansas, and Who has served me faithfully and efficiently for many years, and who is .my beloved kinsman, I give and bequeath ten thousand dollars in cash and also the following real property: Lots 7 and 8, in block 11, in the town of Saratoga, Arkansas, being the lots on which the residence is located in which said Ellis resides. Also the storehouse and lots in Saratoga, Arkansas, Howard County, being a part of section 33, township 11, range 27 west, in said county, where the present storehouse has been situated since 1881, and known now as the W. L. Ellis & Co.’s store. (2). I also give and bequeath to my nephew, A. T. Wallace, to have in addition to his share in my estate, the following lands: The north half of the southwest quarter of section 17, township 12 south, range 27 'west, and known as the Miller Place. Also the northeast quarter section 18, township 12 south, range 27 west, known as the Moore Place, containing 120 acres, more or less, situated in Hempstead County, Arkansas. (3). I also make the following bequest to Joe Duncan, Saratoga, Arkansas: Five .thousand dollars in cash; to Hugh L. Toland, Ashdown, Arkansas, five thousand dollars cash; also to Greo. H. Bell, Nashville, Arkansas, five thousand dollars in cash; also to R. E. Major of Monroe, La., five thousand dollars in cash. (4). It is my desire and I do hereby will that my two plantations situated in Howard County, Arkansas, and known as the McDaniel and Block farm, he held intact and in trust for my legal heirs for the term of twenty-five years after my death. The manager or superintendent of said farm is to use my office or residence in Saratoga, Arkansas, as a residence or .business office, the net proceeds of the rental of said farm to go to my legal heirs each year. After the twenty-five years have expired, said lands may be sold or divided for the benefit of my said heirs. (5). To fulfill a promise made to my beloved brother, D. P. Wallace, deceased, I hereby make his widow, Mrs. Sallie Wallace, of Nashville, Arkansas, one of my legal heirs, provided she is living at my death. (6). To my beloved old friend and kinsman, James W. Ellis, of Ozan, Arkansas, I give one thousand dollars in money, and to his wife, my beloved cousin, Carrie May Ellis, I give the like sum of money, provided they or either of them is living at the time of my death. (7). I hereby nominate and appoint my said kinsman and partner, W. L. Ellis, as the executor of this will and testament, and authorize him to appoint the overseer or manager of my two plantations, the McDaniel farm and the Block farm, in Howard County, Arkansas.”

The above will was duly admitted to probate. The testator’s collateral heirs consisted of his brothers and sisters living at his death, W. B. Wallace, W. P. Wallace, Alice M. Wallace, Lefia A. Roach and Pattie F. Weather-ford, Mrs. Sallie Wallace, widow of D. P. Wallace, deceased, mentioned in paragraph 5 of- the will, by which she was made one of the testator’s legal heirs. W. P. Wallace conveyed all his interest in the land in question to the other heirs above named, and has ho interest in this controversy. Appellant is the son of said W. P. Wallace, and a nephew of the testator. Appellees are all the heirs, except said W. P. Wallace.

Appellant brought this action to have the will construed. He alleged that he was entitled to a one-sixth interest in the proceeds of a sale of a portion of the land, mentioned in paragraph 4 of the will, to the Arkansas Portland Cement Company; that, by agreement with appellees, the portion of the sale price claimed by him had been deposited in escrow pending a determination of his, rights, and that he had executed a deed to the purchaser. He prayed that the money in escrow be decreed his property, or, if it ¡be held that he is not entitled thereto, that it was the meaning and intention of the testator, as expressed in paragraph 4 of the will, that the McDaniel place and the Block farm be held intact and in trust for 25 years after the death of the testator, and that said property be decreed to belong to those parties who may be the testator’s legal heirs at that time and not to those who are the admitted legal heirs at this time. A demurrer to this complaint was interposed and sustained. Appellant declined to plead further, and his complaint was dismissed for want of equity.

Counsel for appellant say that only two questions are involved in this appeal. First, did appellant have the right to maintain this action? and second, did paragraph 4 of the will create an enforceable trust that cannot be terminated until the expiration of twenty-five years? They say that a negative answer to the first question would remove the necessity for an answer to the second. However, we think the second question must be answered, even though the first be decided against appellant, as it is important to the appellees to know whether they have title to the land mentioned in paragraph 4 of the will.

Appellant contends that he is a contingent remainder-man, and that, under the authority of the case of Watson v. Wolff-Goldman Really Co., 95 Ark. 18, 128 S. W. 581, Ann. Cas. 1912A, 540; Horsley v. Hilburn, 44 Ark. 459; and Tatum v. Tatum, 174 Ark. 110, 295 S. W. 720, 53 A. L. R. 306, he had the right to maintain this action, having* a oonting’ent interest in the lands mentioned in § 4 of the mil. In that section the testator said: “It is my desire and I do hereby will that any two plantations situated in Howard 'County, Arkansas, and known as the McDaniel and Block farm, he held intact and in trust for my legal heirs for the term of twenty-five years after my death. The manager or superintendent of said farm is to use my office or residence in Saratoga, Arkansas, as a residence or business office, the net proceeds of the rental of said farm to go to my legal heirs each year. After the twenty-five years have expired, said lands may be sold or divided for the benefit of my said heirs.” It will be noticed that the testator used the term “my legal heirs” in two places, and at the end of the paragraph he used the term “my said heirs,” which manifestly refers to the term theretofore used, “my legal heirs.” The complaint charges that the testator’s “leg’al heirs” were those persons heretofore named, brothers and sisters of the testator, including the widow of one brother, who was made a legal heir by the terms of § 5 of the will. Nowhere in the will is, appellant referred to except in paragraph 2, where the testator said: “I also give and bequeath to my nephew, A. T. Wallace, to have in addition to his share in my estate, the following lands,” describing them.

In a strict legal sense, a living person has no heirs. As said by this court in Gregley v. Jackson, 38 Ark. 487: “Laws of inheritance rest upon public policy, and, during the life of the person owning the property, may be changed at mil. No one has a vested right to be the future heir of any person not already dead.” * * * See also Carter v. McNeal, 86 Ark. 150, 110 S. W. 222.

In 29 C. J. 290 it is said: “In the strictly proper sense of the word, no one is an heir until after the death of the ancestor, and the word signifies one who has succeeded to a dead ancestor; it is used to express the relation of persons to some deceased ancestor, and cannot be applicable to one whose ancestor is living.”

Appellant, being the nephew of the testator and the son of W. P. Wallace, who conveyed his interest to the other legal heirs, would have no right to maintain this action unless, by proper construction of § 4 of the will, he is in fact a contingent remainderman.

In the recent case of Hurst v. Hilderbrandt, 178 Ark. 339, 10 S. W. (2d) 491, we said: “It is a fundamental rule of construction of both deeds and wills to ascertain the intention the grantor had in mind, as to the course he desired his property to take, from the language used in the instrument, and-to give effect to such intention, if it may be done without doing violence to the law.” We further said in the same case: “And it is also a rule that the law favors the early vesting of estates, and that, if a deed or a will is susceptible of a dual construction, by one of which the estate becomes vested and by the other it remains contingent, the former construction will be adopted.” We there cited Booe v. Vinson, 104 Ark. 439, 149 S. W. 524, and McCarroll v. Falls, 129 Ark. 245, 149 S. W. 524. We quoted at some length from authorities as to the distinction between vested and contingent remainders. We shall not again quote those authorities in this opinion.

“A remainder,” says Mr. Tiedeman, “is therefore a future estate in lands, which is preceded and supported by a particular estate in possession which takes effect in possession immediately upon the determination of the prior estate, and which is created at the same time and bv the same conveyance.” Tiedeman on Real Property (3 ed.) § 296.

A remainder is a residue of an estate in land, depending upon a particular estate, and created together with the same. 2 Tho. Co. 126. After quoting the above definition, Professor 'Graves, in his notes on Real Property, § 173, commenting thereon, says: “In order that there may be a remainder, there must be a particular estate upon which it may depend; hence, a fréehold to commence in futuro is no remainder, and is void at common law.” There are two kinds of remainders, vested and contingent. Blackston'e defines them as follows: “Vested remainders, (or remainders executed, whereby a present interest passes to the party, though to be enjoyed in the future) are where the estate is invariably fixed, to remain to a determinate person after the particular estate is spent. * * * Contingent or executory remainders (whereby no' present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event.” 2 Bl. Com. 168.

It is our opinion that paragraph 4 of the will does not create a remainder, either vested or contingent, because there is no particular estate in possession preceding and supporting it. The words, “it is my desire and I do hereby will,” etc., are merely directory, the expression of a desire or wish, or by way of suggestion. The word “will” used therein is synonymous with the preceding word “desire,” and means the same as if the testator had said “it is my desire and I do hereby wish,” etc. These are precatory words, merely expressive of the testator’s desire regarding such property, and do not amount to an affirmative command which the heirs are bound to obey. They are insufficient to create a trust. No trustee is named, but the executor is given power to appoint an overseer or manager. No directions are given as to what the overseer or manager shall do with reference to the planting and growing of crops, nor how the farm shall be managed or rented. Should the executor named in the will die or refuse to qualify, no power is given to anyone else to name the overseer or manager, and there has been no conveyance of the two farms mentioned to any overseer of manager or to the executor. The testator desired that his farms be held intact, and he merely expressed a wish that his heirs might see proper to do so. Of course, equity would not permit a trust to fail for want of a trustee, but here no trust has been created.

The testator undoubtedly intended that his. brothers and sisters, living at the time of his death, together with Mrs. .Sallie Wallace, should take the fee to the two farms mentioned in paragraph 4 of the will. He referred to them as “my legal heirs” and “my said heirs,” and this is made certain by reference to paragraph 5 of the will, wherein he made Mrs. Sallie Wallace, widow of his deceased ¡brother, D. P. Wallace, one of his “legal heirs, providing she is living at my death.” She was made a legal heir and put in the same class with the others, solely on condition that she be living at his death. He intended by the will for her to share equally with his brothers and sisters, not only in the rents and profits from year to year if the land be held intact for the period of time suggested by him, but also in the fee.

In Williams v. Norton, 126 Ark. 503, 191 S. W. 34, this court said:

“In the old English case of Derm v. Gaskin, 2 Cowp. 657 (1777), Lord Mansfield declared, that ‘though the intention is ever so apparent, the heirs at law must of course inherit unless the estate is given to somebody else. ’ That rule has never been departed from, so far as we are advised, either in England or in this country. The reason for the doctrine is that courts cannot make wills for parties and by so doing annul the laws of descent and distribution. The court in the same case quoted with approval from Virginia and Georgia cases, to the effect that “an heir can be disinherited only by express devise or necessary implication, so strong that a contrary intention cannot be supposed; that the heirs cannot be disinherited unless the estate is given to somebody else.”

Quoting with approval from Wright v. Hicks, 12 Ga. 155 it is said: “Intent to disinherit the heir is essential to raise an estate by implication, the presumption being, in the absence of plain words in the will to the contrary, that the testator intended that his property should go in the legal .channel of descent.”

The Supreme 'Court of the United States, in Wilkins v. Allen, 18 How. 385, said: “Under the law the heirs must take, unless, they are disinherited by express words or necessary implication. Conjecture or uncertainty shall never disinherit him.”

Applying these rules to the paragraph of the 'will under consideration, we hold that there was no intention on the part of the testator expressed in the will to disinherit his “legal heirs’’ for a period of twenty-five years, or any other time.

This case is, quite similar to that of Black v. Bailey, 142 Ark. 201, 218 S. W. 210. It was there held, among other things, that a will which provided that a trustee named in the will should hold the testator’s property “with full power and authority to handle, manage and control my estate as such trustee, as in his judgment may seem best” for the use and benefit of his children, did not vest the legal title in the trustee. It was further held that the beneficiaries of the trust estate might terminate the trust created by the will, for the benefit of the estate, the beneficiaries all being sui juris. $0' here all the legal heirs are sui juris. The appellees are the sole legal heirs interested in this litigation. They are the persons solely interested in either the rents or profits or the fee, and with their consent the property may be sold and a good title conveyed by them.

We pretermit a discussion of the rule against per-petuities. Having reached the conclusion heretofore announced, it becomes unnecessary, even though a valid trust was otherwise created by § 4 of the will, for still it might be void as offending the rule against perpetuities.

Decree affirmed.


author: Hart, C. J.,

text:
    Taylor v. Deese.
    Opinion delivered February 25, 1929.

      Trimble & Trimble, for appellant.

      C. V. Holloway and Reed & Beard, for appellee.
   Hart, C. J.,

(after stating the facts). It is earnestly insisted by counsel for appellant that the judgment must be reversed because the circuit court erred in admitting parol evidence to show that appellees signed the note to the bank under tbe promises of its cashier that tbe note would not become effective until tbe bank took a mortgage from C. F. Deese, tbe principal in tbe note, upon a certain tract of land, and that this condition was never'performed by tbe ¡bank. It is contended that tbe admission of this testimony violated tbe well-known rule that parol evidence is not admissible when it tends to vary or contradict the legal effect of a written instrument. According to tbe parol testimony, tbe note sued on was not to become effective until tbe bank took a mortgage on 80 acres of land from C. F. Deese, tbe principal in tbe note. In other words, tbe note was not effective until this alleged condition was complied with. This made it a condition precedent to the final completion of tbe contract between tbe parties. Tbe testimony of appellees brings tbe case squarely within tbe principles of law announced in Halliburton v. Cannon, 160 Ark. 428, 254 S. W. 687, where tbe principles of law governing cases of this sort are stated in tbe second syllabus. In that case, after reiterating tbe well-settled rule that tbe verdict of a jury, or tbe finding of a court sitting as a jury, will not be disturbed on appeal if tbe evidence is legally sufficient to support it, tbe court held that, where a promissory note, made payable to plaintiff, was signed by defendant as an accommodation maker, upon express condition that two other persons should sign tbe note before it should become binding on defendant, and defendant notified plaintiff of such condition before tbe note was delivered to him, it was not error to permit defendant to prove tbe condition on which be signed tbe note, though plaintiff was not present when tbe note was, signed. The bolding of tbe court in that case was based upon tbe rule in Graham v. Remmel, 76 Ark. 140, 88 S. W. 899, to tbe effect that, in a suit on a note executed in payment- of tbe first premium of a policy of insurance, it is competent in defense to prove by parol evidence that tbe note was executed on condition that it should not be binding unless tbe policy, when it arrived, was satisfactory. In that case the court also had in mind that the payee of the note might be a holder in dne course under the rule announced in Cagle v. Lane, 49 Ark. 465, 5 S. W. 790.

This court is committed to the rule that the parties to the instrument may introduce parol evidence to show that the contract should not become effective unless certain conditions are first complied with. The reason is that such testimony does not contradict or vary the terms of the writing itself, hut simply provides that the written instrument or contract is never to become binding upon the parties unless and until the condition is complied with.

This principle was recognized and applied in American National Bank v. Kerly, 109 Ore. 155, 220 Pac. 116, 32 A. L. R. 262, and Caudle v. Ford (Ky.), 72 S. W. 270.

In the case first cited the Supreme Court of Oregon held that the payee of a note which does not accept it until after notice of conditions upon which some of the makers sign, and which had not been complied with, is not a holder in due course. -Parol evidence was. admitted in that case to show the conditions upon which the note was signed and that the bank had notice of before the note was delivered to it.

In the case last cited the Court of Appeals of Kentucky held that it was competent to show by parol evidence that, at the time the payees of an accommodation note indorsed the same, it was agreed that, before the maker should sell it, he should obtain the name of another party as payee, and that the latter should also indorse it, and the maker should execute a mortgage to indemnify the payees against loss. The court also held that, in an action by an indorsee against the indorsers of an accommodation note, where defendants all testified to an agreement whereby their indorsement was not to take effect until certain conditions were complied with, and that the plaintiff had notice thereof, a verdict for defendants could not be disturbed on appeal, though plaintiff testified that he purchased without notice of the agreement.

This 'principle is not in conflict with onr negotiable instrument statute. Subdivision 5 of .chapter 130 of Crawford & Moses’ Digest deals with the subject of the rights of holders of negotiable instruments to sue. Section 7817 defines a holder in due course. He must be one who has no notice of any infirmity in the instrument at the time he takes it. Under § 7824 a negotiable instrument is subject to the same defenses as if it were non-negotiable in the hands of any other holder in due course.

In the case at bar, .if the note was delivered to Couch as cashier of the bank upon condition that it was not to become effective until the bank took the mortgage of C. F. Deese, the principal in the note, on the tract of land testified to, then the bank was not a holder in due course, and the court did not err in admitting parol evidence to show the condition upon which the note was signed and that the bank had notice of the condition at the time the note was delivered-to it. The evidence on this point was conflicting, and, under our well-settled rules of practice, the verdict of the jury is binding upon us on appeal.

Therefore the judgment will be affirmed.


author: Hart, C. J., McHaney, J.,

text:
    State ex rel. Attorney General v. Lovett-Carnahan Company.
    Opinion delivered February 25, 1929.

      H. W. Applegate, Attorney General, and Wooldridge & Wooldridge, for appellant.

      A. J. Johnson and Rowell & Alexander, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellant rely upon the case of Willey & Brothers v. State, ex rel. Attorney General, 178 Ark. 662, 12 S. W. (2d) 17, for a reversal of the judgment. They claim that, under the principles of law decided in that case, the circuit court erred in not directing a verdict for the State for the amount sued.for, which represented the balance due the State for the hire of the convicts during- the time they were worked by appellee. In the Willey case, as in the present case, the State Board of Charities and Correction made a contract for the hire of the convicts pursuant to an act of the Legislature. Acts of Arkansas 1925, p. 446. Section one of the act provides that the board is authorized to hire any convicts in the State Penitentiary to work upon public highway's in the State, or to do any other useful agricultural work, provided that the convicts, while so employed, shall at'all times be under the management and custody of the board. The section also contains a proviso that said convicts shall not be leased for any definite period, but shall be worked by the day for reasonable wages, -to be paid by the person for whom said work shall be done, provided said wages shall not be less than $1.50 a day.

In the Willey case the board entered into a contract with the appellants to furnish them thirty-two convicts to be used in cultivating their land from February 12, 1926, until December 31,1926, at a price of $1.75 each per day, and it was provided that appellants, should build a modern-style stockade to house the men. Thereafter, on May 10, the contract was modified by reducing the price of each convict’s pay from $1.75 to $1.50 per day. On October 28, 1926, the parties executed another contract for the year 1927 by which the State agreed to furnish forty convicts to cultivate 500 acres of land for appellants on the shares, that is, for one-half the crops grown on said land. A new Board of Charities and Correction came, into office in January, 1927, and this board demanded of appellants payment for the use of the convicts for the year 1926. Appellants refused to pay this until the State assured them that it would carry out the contract for the year 1927. In the first part of February, 1927, the State withdrew all its convicts from appellants and instituted this action to recover the amount due under the contract for 1926. The court properly refused to allow appellants! damages for a stockade built by them under the contract for the hire of the convicts during, the year 1926. The contracts for the hire of the convicts, for the two years were separate and distinct agreements, made on different days, and the two contracts had entirely different terms. Under the statement of facts the stockade was built under the terms of the contract for 1926, and the court properly held that the expense of building this stockade .could not be offset against an alleged breach of the contract by the State for the year 1927. The court also properly held that appellants conld not offset the rental value of 350 acres of land against the alleged breach of the contract by the State for 1927. The court pointed out that, under the statute, the board had no right to lease the convicts except for a money consideration, as provided in the statute, and had no power or authority to make a contract for a definite period. Thus it will be seen that no rights whatever accrued to appellants under the terms of the contract for 1927.

In the instant case the facts are essentially different. It is true that the contract of hiring went beyond the authority conferred by the statute as to the length of time it would run. But this did not have the effect to abrogate the whole contract. It will be observed that the statute confers authority upon the board to hire the convicts to do agricultural work, provided that the convicts should not be leased for any definite period of time, but should be worked by the day at wages not less than $1.50 per day. Now, it is a matter of common knowledge that it takes a year to make a cotton crop in this State, which the record shows was the Idnd of crop contemplated by the parties. "While the terms of the statute prohibited the leasing of convicts for any definite period of time, still the parties might have contracted with reference to the customs and usages of the country in making and gathering crops in this country; and the contract, as thus construed, would mean that the board had a right to hire the convicts to appellee for $1.50 per day each for the year 1926, with the condition or proviso that the State might retake the convicts at any time it was deemed necessary or expedient to do so.

Pursuant to this contract, the board allowed lessee to use the convicts in making and gathering- its crop- for 1906, and the board which was then in existence continued to allow appellee to use the convicts in 1927 until its place was taken by a new board, about the middle of January. The new board canceled the contract with appellee on the 3d day of February, 1927, and retook the convicts. When the ¡board allowed appellee to lease the convicts in 1927, this ¡created an implied obligation on the part of the State to renew, or rather continue, the contract for the year 1927. The proof on the part of the State shows that a certain fixed and definite amount was due for the hire of the convicts for the year 1926, and up to February 3,1927, and it is earnestly insisted that appellee has not the right to ask any affirmative relief against the State on account of any alleged breach of the contract, or even to use any claim for alleged damages for the breach of the contract, as a defense to the action instituted by the State for the recovery of the amount due the State for the hire of the convicts for the year 1926.

We cannot agree with counsel for the State in this contention. It is true that article 5, § 20, of our Constitution provides that the State of Arkansas shall never be made a defendant in any of her courts, and that this applies to the governmental agencies of the State, because an action against them is, in effect, one against the State. Pitcock v. State, 91 Ark. 527, 121 S. W. 742; Jobe v. Urquhart, 98 Ark. 525, 136 S. W. 663; and Allen Engine Company v. Kays, 106 Ark. 174, 152 S. W. 992. And this court has held that the constitutional prohibition against making the State a defendant in any court applies to a cross-complaint setting up affirmative relief against the State. State v. Arkansas Brick & Manufacturing Company, 98 Ark. 125, 136 S. W. 843, 33 L. R. A. (N. S.) 376. In that case the court held that re-coupment was in the nature of a common-law defense, and, while no affirmative judgment could be had thereon, it could be used in diminution, reduction, or even satisfaction of the plaintiff’s cause of action, since the amount claimed springs out of the very contract or transaction on which the recovery is sought. In that case the State had agreed to furnish the defendant 300 convicts per day for ten years, but failed to furnish that number during the period of the contract. After the expiration of this period the State continued to furnish convicts to the defendant without any new contract. In a suit by the State to recover for the wages of its convicts, it was held that the defendant was entitled to recoup damages for the State’s failure to comply with her contract against the State’s claim for services of the convicts, both during the period of the contract and thereafter.

The doctrine of recoupment was clearly and comprehensively stated by the Supreme Court of Alabama in Grisham v. Bodman, 111 Ala. 194, 20 So. 514. Mr. Justice McClean, in the opinion delivered by him, said that the gist and essence of recoupment is that the defendant does not owe the claim because, through the .plaintiff’s violation of the contract sued on, he has suffered damages which ‘reduce or destroy the plaintiff’s claim. The learned Justice said:

‘ ‘ While recoupment is at common law, in some sense, a means of enforcing a cause of action by the defendant against plaintiff, either wholly or partially, as the defendant’s claim for damages may or may not be less, or greater, than plaintiff’s demand, yet such cause of action is enforced, not as an independent claim or debt of the defendant, but by way merely of cutting off, reducing the plaintiff’s claim; so that the effect of a plea of re-coupment sustained is an adjudication that, to the extent of the sum recouped, the plaintiff had no claim or debt.”

Other courts have recognized that recoupment goes to the right of the plaintiff’s claim, and that, while no affirmative judgment can be had thereon, it can be used in diminution of the amount to be recovered, or to prevent a judgment in favor of the State, when the claim is' equal to or in excess of the demand of the State. This is on the ground that the claim is in the nature of a payment, or a credit, to which the defendant is entitled, and that the demand of the State is, in fact, only for the balance. Battle v. Thompson, 65 N. C. 406; Moore v. Tate, 87 Tenn. 725, 10 Am. St. Rep. 712, 11 S. W. 935; Commonwealth v. Owensboro N. & R. Company, 81 Ky. 572; and Commonwealth v. Todd, 9 Bush 708.

In the case last cited, the Court of Appeals of Kentucky said that the plaintiff’s right to assert his claim for damages in the action against him by the Commonwealth rests upon the broad principle of justice which allows everyone who is sued to show, as a matter of law, that he does not owe the demand for which he is sued. Todd, the defendant in that case, the court said, had a right to have his claim adjudicated to the extent that he was asserting such a defense to shield him, but no further.

The result of our views, is that the circuit court did not err in refusing to instruct a verdict in favor of the State for the amount due for the hire of the convicts for the year 1926* and for the year 1927 up to the time they were taken away from the defendant.

It is next insisted by counsel for the State that the court erred in instructing the jury as to the measure of damages which the defendant might prove to have been suffered for the alleged breach of the contract on the part of the State, and in this contention we think counsel are correct. The court, under the authority of State v. Arkansas Brick & Manufacturing Company, supra, properly allowed the defendant to recoup the amount expended by .it in the building of the stockade and the fair rental of the land which lay idle because the convicts were taken away from the defendant in February, 1927. 'Considering the uncertainties attending farming, it is difficult to define a safe guide for instructing juries as to the amount of damages suffered in cases of this sort; but we are of the opinion that-fair rent for the land which lay out because the defendant was unable to work the same for the year. 1927 was a reasonable standard. As we have already seen, the board allowed the defendant to keep the convicts in January, 1927, .and thereby entered into an implied contract with.it to use the convicts in making and gathering the crops on the lands in 1927 under the same terms as for the year 1926, or at least recognized the continuance of the original contract. Thus the defendant was kept from renting out the land for the year or from obtaining a new source of labor sufficient to work the land.

This principle was recognized in State v. Arkansas Brick & Manufacturing Co., supra, where the board allowed the convicts to remain after the period of time expressed in the original contract had expired, and there was sufficient connection between the two claims made by the State to recover for the hire — one under the contract, the other for labor furnished after the date of its expiration — to make both subject to the defendant’s plea of recoupment. The court erred, however, in allowing the defendant to recoup the loss it claimed to have suffered by reason of being prevented from gathering the crop' of 1926 which still remained in the field. The board first made a contract with the defendant to hire the convicts for the year 1926 at the price of $1.50 per day. It would be reasonably supposed, at least' in the event that the State did not deem it necessary to retake the convicts during the year, that the defendant would have its crop gathered by the first of the year 1927. It did not do so, and the State allowed the defendant to continue in the use of the convicts for a part of the year 1927, which would only be a continuation of the original contract for that year, and it could not be reasonably intended that the defendant would be entitled to recoup from the State any damages which he might have suffered from a failure to gather his crop in the fall of 1926. Such damages would not be within the reasonable contemplation of the parties at the time the contract was made, and would be speculative. Therefore the court erred in instructing the jury as to the measure of damages which the defendant might recoup, and for that error the judgment will :be reversed, and the cause remanded for a new trial.

Mr. Justice Mehaffy concurs in the judgment and the opinion, but goes further, and expresses the view that the Willey case should be overruled. Mr. Justice Wood, Mr. Justice Humpheeys and Mr. Justice McHaney con-our in the judgment of reversal, 'but dissent from the opinion.

McHaney, J.,

(dissenting). I concur in the judgment of reversal, hut dissent on the ground that the court erred in refusing to give a peremptory instruction for appellant. I am of the opinion that this case is controlled by the Willey Brothers case, attempted to be distinguished from this case in the majority opinion. I am furthermore of the opinion that the undisputed proof shows that appellees first breached the contract by refusing to pay the amount due the State at the time agreed on, and on demand of both the old and the new board, and that appellant had the right at that time to withdraw the convicts and sue for amount due, and that appellees were not entitled to recoup anything on account of such breach.

The distinction attempted between this case and that of Willey Brothers is one without a difference. If the Willey Brothers case is wrong, it should be overruled, but the majority agree that it is right. I am authorized to state that Mr. Justice Wood and Mr. Justice Humphreys agree with this dissent.


author: Smith, J.

text:
    Bank of Magazine v. Friddle.
    Opinion delivered February 25, 1929.

      Evans & Eva/ns, for appellant.

      U. G. May and J. 0. Johnson, for appellees.
   Smith, J.

Appellees brought suit and recovered judgment against the appellant bank for the face value of checks drawn in their favor on appellant bank by one Doran in payment of cattle which they had sold Doran. The testimony on their behalf was to the effect that Doran was about to ship a carload of cattle, which the plaintiffs were ready to attach, but did not attach because the cashier of the bank agreed to accept and •pay checks drawn in plaintiffs’ favor by Doran. In submitting this issue the court charged the jury as follows :

“If you find from a preponderance of the testimony that Mr. Kyle, cashier of the Bank of Magazine, agreed with the plaintiff Heathcoate that the Bank of Magazine would pay the checks for the purchase price of said cattle, when they were about to be attached, and if you find that that was for the benefit of the bank that the checks should be paid', then the bank would be liable. If you do not so find, the Bank of Magazine would not be liable.”

The cashier of the bank denied that he agreed to accept and pay the checks, but the verdict of the jury in plaintiffs’ favor.is conclusive of this issue of fact.

However, the undisputed testimony is to the effect that the agreement of the' cashier to accept and pay the checks was an oral one, and it is upon this acceptance that the suit is predicated.

At common law an oral acceptance of a bill or check was sufficient to bind the drawee, but this has been changed by the Negotiable Instruments Law, appearing as §§ 7760 et seq., C. & M. Digest.

Section 132 of the Negotiable Instruments Law, which appears as § 7898, C. & M. Digest, provides that: ‘ ‘ The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing, and signed by the drawee. It must not express that the drawee -will perform his promise by any other means than the payment of money.”

Section 185 of the Negotiable Instruments Law, wbicb appears as § 7951, C. & M. Digest, reads as follows: “A check is a bill of exchange drawn on a bank, payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check.”

It appears therefore that the acceptance of a check must be in writing, and signed by the drawee.

In volume 1, page 5, Patou’s Digest of Legal Opinions as general counsel of the American Bankers’ Association, it is said:

“At common law an oral acceptance was valid, but one of the requirements of the Negotiable Instruments Act is that ‘an acceptance must be in writing and signed by the drawee’ (Section 132). The Negotiable Instruments Act has been passed in every State in the Union. It follows that an oral -acceptance of a bill of exchange or check is not now valid in any State in this country. ’ ’

An indefinite number of cases in all of the States support this statement of the law. To hold the bank liable upon the oral acceptance of the cashier would be to restore the common law -and to disregard the above quoted statute.

The judgment must therefore be reversed, and, as the case appears to have been fully developed, it will be dismissed.