author: Hart, J.,

text:
    Missouri Pacific Railroad Company v. Pfeiffer Stone Company.
    Opinion delivered November 17, 1924.
    1. Carriers — liability, of consignor for freight charges. — A carrier, contracting with a consignor to transport goods, may look to him for payment of the freight charges, waiving its lien on the goods by delivering them to the consignee.
    2. Carriers — delivery of goods to consignee. — Stipulation in a bill of lading that the goods are to be delivered to the consignee, “he paying freight,” is for the carrier’s benefit, and delivery to the consignee without collecting the freight will not discharge the consignor, in the absence of special stipulations to that effect.
    3. Carriers — recovery of difference between interstate and contract rate. — On interstate shipments a carrier can compel the shipper to pay the difference between legally established interstate rates and a lower rate fixed by contract and collected by ' mistake or otherwise.
    4. Carriers — departure from schedule of interstate1 rates. — A carrier cannot depart to any extent from its published schedule of rates for interstate shipments without incurring the penalties of the act of Congress.
    5. Limitation of actions — action to recover freight charges.— An action by an interstate carrier to recover the difference ■ between the interstate rate and a contract rate is an action on writing, and is governed by the five-year statute of limitation (Crawford & Moses’ Dig., •§ 6955).
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    reversed.
    STATEMENT OF FACTS.
    Tbis as an action by the Missouri Pacific Railroad Company against the Pfeiffer Stone Company to recover abalance of freight charges which, through the carrier’s mistake, had not been claimed or collected at the time of the delivery of the stone.
    The case originated in the justice court, and was appealed to the circuit court and tried there on an agreed statement of facts. The action is based upon a shipment of cut stone by the Pfeiffer Stone Company, a corporation, from Pfeiffer, Arkansas, to Alexandria, Louisiana. The shipment was made on the 21st day of April, 1917, and the weight of the stone was 44,700 pounds. The freight collectéd was based upon a rate of 12 cents per cwt., making a total of $53.64. The shipment of stone was consigned to the Hudson Construction Company, at Alexandria, Louisiana, f. o. b. cars at Pfeiffer, Arkansas.
    The bill of lading* issued at the time of the shipment was introduced in evidence. The published tariff rates of the Interstate Commerce Commission upon cut stone is 34 cents per cwt. This made an undercharge difference of $98.34, which is sought to be recovered in this suit.
    The circuit court was of the opinion that the Pfeiffer Stone Company was not liable because it ceased to be the owner of the stone shipped when it was delivered to the carrier, and was also of the opinion that the claim was barred by the statute of limitation of three years.
    From the judgment against it the railroad company has appealed to this court.
    ' Thos. B. Pryor and Ponder £ Gibson, for appellant.
    A consignor with whom a contract of shipment is made is liable for the charges provided for therein. 6 Cyc. p. 500; 85 Am. Dee. 707; iS Gray (Mass.) 281; 15 Am. Dec. 615. 97 Ark. 353; 24 A. L. R. 1160. Even though the bill of lading provides for the delivery of the goods to the consignee on his paying freight, the consignor remains 'liable on his contract. 69 Am. Dec. 74; 47 Am. Dec. 162-; 23 N. C. 236; 10 Watts (Pa.) 384; 10 C. J. 445; 130 Fed. 860. When a consignee does not pay the proper amount of freight charges, an interstate carrier may look to the shipper, and is not required to sue the consignee. 241 Fed. 727; 130 Fed. 860. The collection of a, less rate than that fixed by law does not relieve the shipper of paying the true amount. 49 L. R. ,A- (N. S.) 92; 100 Ark. 221. A bill of lading represents a written contract between the shipper and carrier. 118 N. Y. Supp. 982; 243 U. S. 592; 251 Fed. 230; 127 Ark. 247. And actions thereon may be brought within five years after the cause of action accrues. C. & M. Dig., § 6956. A carrier, upon the performance of its contract to transport goods to another State, may sue in a State court to recover, as its right of recovery is based upon contract. 97 Ark. 354.

      McCaleb & McCaleb, for appellee.
    Appellant’s claim is barred by the statute of limitations. The bill of lading was not a written contract, as it ' does not show the amount of freight to be paid. A contract partly in writing and partly oral is in legal effect an oral contract, and governed by the period of limitations for oral contracts. 25 Cyc. 1042 ; 5 N. E. 408; 12 N. W. 780; 49 Atl. 66. Where parol evidence is-necessary to establish a part of the contract, it is treated as an oral contract. 32 N. E. 424. 'See 47 Ark. 317. The right to recover on an implied contract is limited to three years. 67 Ark. 27; 47 Ark. 301; 99 Ark. 105.
   Hart, J.,

(after stating the facts). As stated, this is an action to recover a balance of freight charges which, through the carrier’s mistake, had not been collected at the time of the delivery of the goods. The -shipment was an interstate one, and the undercharge resulted from a mistake made by the agent of the carrier in putting a less rate in the bill of lading than that established'by the Interstate Commerce Commission and promulgated by the railroad company on its tariff or rate sheets. St. L. I. M. & S. R. Co. v. Faulkner, 111 Ark. 430; K. C. & Memphis Ry. Co. v. Oakley, 115 Ark. 20; and St. L. I. M. & S. R. Co. v. Starbird, 243 U. S. 592.

These cases and many others hold that the Carmack Amendment requires the receiving carrier to issue a through bill of lading, and makes that bill of lading the contract of shipment.

In the case before us, the Missouri Pacific Railroad Company, as a common carrier, entered into a contract with the Pfeiffer Stone Company whereby it agreed to transport a oar of stone from Pfeiffer, Arkansas, to Alexandria, Louisiana. In such cases the carrier had the right to look to the consignor or owner of the goods for the payment of the freight, and it may waive its lien upon the goods by delivering them to the consignee and still hold the consignor liable upon the contract of shipment. St. L. S. W. R. Co. v. Gramling, 97 Ark. 353.

In the case note to 24 A. L. R. 1163, the general rule is declared to be that stipulations in a bill of lading that the goods are to be delivered to the consignee, “he paying freight,” or any similar provision, are for the benefit of the carrier, so that delivery to the consignee without collection of the freight will not release the consignor from liability therefor, in the absence of a special stipulation to the contrary. Many decisions of various courts of last resort of the different States are cited in support of the rule. The rule is well established that, on interstate shipments, a carrier can compel the shipper to pay the difference between the legally established interstate rate and a lower rate quoted or collected by mistake or otherwise. Louisville & N. R. Co. v. Allen (Ky.), 153 S. W. 198; New York, N. H. & H. R. Co. v. York & Whitney Co. (Mass.), 102 N. E. 366; and Central R. Co. v. Mauser (Penn.), 49 L. R. A. (N. S.) 92, and case note.

The reason given is that the aim of the Interstate Commerce Act is to secure for each and every shipper of goods in interstate commerce absolute equality of reasonable rates, without discrimination or preference. No excuse which operates as an evasion of the rates established by the Interstate Commerce Commission and promulgated by the carrier, has any standing as a matter of law in defense of a proved violation of such rate. It is now the established rule that a carrier cannot depart to any .extent from its published schedule of rates for interstate transportation on file without incurring the penalties of the act of Congress. Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467. The schedule of rates, when established by the Interstate Commerce Commission and promulgated by the carrier, becomes a rate established by law, and cannot be varied by the act of the parties.

The tariff on file necessarily entered into and formed a part of the contract of shipment by the mere operation of law. Texas & Pacific Ry. v. Mugg, 202 U. S. 242. Hence it is immaterial that the bill of lading had a less rate, than the tariff rate on cut stone. It was beyond the power of the parties to make a valid contract for a less rate than the published schedule filed with the Interstate Commerce Commission, and, notwithstanding a contract of this kind, the shipper is liable for the undercharge. If the rate did not prevail, the act of Congress would be ineffectual to secure uniformity in the treatment of all shippers and to prevent special and secret agreements Avith respect to rates for interstate transportation.

It is sought to uphold the judgment upon the authority of Louisville & Nashville Railroad Co. v. Central Iron & Coal Co., 265 U. S. 59. In that case it was held that, in the ■ absence 'of a governing tariff provision, delivery of the goods for shipment does not necessarily import an obligation of the shipper to pay the freight charges, and the carrier and shipper are free to contract as to when and by whom payment shall be made, subject to the rule against discriminations. The ruling of the court and the facts upon which it is based are stated in the third syllabus as follows:

“Where bills of lading, acknowledged receipt of goods from the shipper but proAdded for delivery to the "order of another as consignee, were not signed by the shipper, and contained no express agreement on his part to pay or guarantee payment of the freight charges, and there was evidence that the goods were sold and shipped by the shipper to the consignee upon agreement between them that the latter should pay those charges, and were transferred by the consignee with the bills of lading to a third party, who received delivery from the carrier, held, that a finding that the shipper did not assume the primary obligation to pay the freight charges was justified.”

The facts in the case before us are essentially different. The bill of lading recites that the freight is received at Batesville, Arkansas, at the Pfeiffer quarry from the Pfeiffer Stone Company. It is consigned to Hudson Construction Company, at Alexandria, La. The Pfeiffer Stone Company is named as shipper. The bill of lading purports to be a contract between the consignor and the railroad company, and recites that every service to be performed by the railroad company shall be subject to all the conditions on the back of the bill of lading. It recites that these conditions are agreed to by the shipper and accepted for himself and his assignees.

Section 8 of the conditions on the back contains the following’:

“The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.”

If it be conceded that the words “owner’’’ and “consignee” are synonymous, it was not the purpose of § 8 to relieve the consignor from liability on his contract. The clause was inserted for the carrier’s benefit and is intended as notice of the carrier’s legal rights. Without that clause the consignee, if owner, is bound, by accepting the goods, to do all that § 8 requires him to do. The carrier’s right to collect the freight charges from the consignee does not release the consignor in the absence of a special contract to that effect. The carrier may collect the freight from- either. The consignor is bound on its express contract when it signs the bill of lading, and the consignee is bound on its promise implied by its ownership and acceptance of the stone-

We are therefore of the opinion that the Pfeiffer Stone Company, the shipper and consignor of the stone shipped, is liable to pay the undercharge in freight, and that there is nothing in the record upon which to base a finding by the circuit court that the consignor made a special contract with the railroad company exonerating it from the payment of the freight.

It is next contended that the cause of action is barred by the statute of limitations, and reliance is- placed upon C. R. I. & P. Ry. Co. v. Lena Lumber Co., 99 Ark. 105, to sustain this contention. In that case the suit was brought by the shipper against the carrier to recover an overcharge in freight. There the contract was at an end, and the shipper brought an action for money had and. received to recover the excess charge. The action was founded upon an implied contract, not in writing, to return the overcharge which had been paid by mistake, and we held that § 5064. of Kirby’s Digest (6950 of Crawford & Moses’ Digest), applied.

In the case before us the carrier sued the shipper for a balance due on freight, and relied upon the con- ' tract to recover. As we have already seen, the bill of lading was the contract of shipment between the parties, and the tariff or -rates on file became as much a part of the contract as if written in it. Therefore the bill of lading was a contract in writing, and the five-year statute of limitations governs. This holding is in accordance ■with the decision in C. R. I. & P. R. Co. v. Cunningham Commission Co., 127 Ark. 246. In that -case it was held that a shipper of freight may recover damages for the delay in the transportation and delivery of freight in an action founded on contract, and that the five-year statute of limitations applied.

In the case before us, the undisputed evidence shows that the suit was brought within five years, that the shipment was an interstate one, and that the undercharge sought to be recovered amounts to $98.34.

The result of our views is that the judgment must be reversed, and, because the facts are undisputed, judgment will be entered here in favor of appellant against appellee in the sum of $98.34, with six per cent, interest from November 2, 1923, -the date of the judgment in the circuit court.

It is so ordered.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Four Rivers Mutual Orchard Company v. Wood.
    Opinion delivered November 24, 1924.
    1. Trusts — parol evidence. — Where a trust was established by a written contract, and such writing is not accounted for, parol testimony of its contents is inadmissible.
    2. Trusts — resulting trust. — One not contributing to the purchase of land cannot, by subsequently furnishing funds for improvements thereon, establish a resulting trust.
    Appeal from Madison Chancery Court; Ben F. Mc-Mahan, Chancellor;
    affirmed.

      John W. Nance and J. B. Harris, for appellant.
    The court erred in sustaining the exceptions and objections of appellee and in dismissing appellant’s interplea. 58 Ark. 98; 108 Ark. 836; 109 Ark. 332; 147 Ark. 383. Parol evidence may be introduced to prove the existence of a corporation. 3 Ency. Ev. p. 604; Elliott on Corp. (4 ed. 52). A resulting trust can not grow stale so long as the cestui que trust remains in possession and control of the property with the trustee’s consent. 70 Ark. 145. A contract to purchase timber lands, plaintiff:' to take title, and defendant to advance the purchase price, and take- a mortgage as security, is not within the statute of frauds. 114 Ark. 43; 137 Ark. 407. Where the legal title to lands was obtained under circumstances which render it inequitable, equity imposes a constructive trust in favor of the one equitably entitled to the same as against the wrongdoer or any subsequent holder. 151 Ark. 305. A purchaser at an execution or attachment sale takes at his own risk. 58 Ark. 260. And a purchaser of a trust estate takes subject to the trust. 155 Ark. 235.

      J. 8. Combs, H. L. Pearson and- W. N> Ivie, for appellee.
    The -eases relied upon by appellant to sustain his exception are not applicable, for the reason they apply strictly to criminal cases and are controlled by the statutes of the State. C. & M. Digest, §§ 3119-3120. The court was correct in sustaining appellee’s exception. All declarations or creations of trust or confidences of any lands or tenements shall be manifested and proved by some ‘writing, signed by the party who is, or shall be by law, enabled to declare snch trusts, or by Ms last will in writing. O. & M. Digest, § 4867; 100 Ark. 253; 103 Ark. 273; 104 Ark. 32; 110 Ark. 389; Bracy v. Timms, 162 Ark. 247, 237 S. W. 728. Trusts concerning lands which are not created by contract or agreement between the parties, but which arise or result by operation of law when the lands are conveyed, are implied trusts, and may be established by parol evidence. Section 4868, C. & M. Digest; 101 Ark. 451; 142 S. W.. 848; 103 Ark. 145; 147 S. W. 54; 114 Ark. 128; 169 S. W. 813. Trusts eos maleficio will be declared whenever the legal title to property has been obtained through fraud, misrepresentation, concealment, or through undue influence, duress, taking advantage of one’s weakness or necessity. Pomeroy’s Eq. Jur., § 1053; 113 Ark. 36; 136 Ark. 480. A breach of promise to carry out an alleged trust is not sufficient to create an enforceable trust. 73 Ark. 310; 109 Ark. 335. Where the legal title to land is -held for another and a trust is sought to be established, the trust must be proven by evidence that is clear, convincing and satisfactory. 239 S. W. 1063; 105 Ark. 318; 151 Ark. 305.
   McCulloch, C. J.

F. R. Wood, one of the appellees, instituted an action in the circuit court of Madison County against George A. Reese and Gussie E. Reese to recover on a note in the sum of $4,949, executed by them to the said appellee, and he caused a general attachment to be issued against the defendants and levied on personal property and real estate — numerous tracts of land containing several thousand acres. Said defendants were nonresidents, and were brought in by publication of warning order. The court rendered judgment in favor of appellee Wood against the defendants for the amount of the note; with interest, amounting to the aggregate sum of $7,679.27, and ordered the attached property sold by the sheriff. There was a sale of the property, and the real estate was purchased by appellee C. E. Crawford, and the sheriff reported the sale to the court for confirmation. At the term at which the report of sale came up for confirmation, but' before there was an order of the court in that regard, appellant, a foreign corporation, appeared and filed what was termed an interplea, asking that the sale be not confirmed, but that it be set aside'. Appellant alleged that George A. Reese held the legal title to the lands in controversy, in trust for appellant, and that, shortly after the purchase of the land by Reese, appellant, through its agent, entered into possession of a portion of the lands, cleared up about five hundred acres, and fenced it and built houses and other improvements thereon. The plea contained a prayer for .transfer of the cause to the Madi-' son Chancery Court, and that, on final hearing, appellant be decreed to be the owner of the lands or have a lien on the lands for the amount it had expended on permanent improvements.

Appellees Wood and Crawford answered the inter-plea, denying that appellant was the owner of the land or that the same was held in trust for appellant, and the cause was thereupon transferred to the chancery court. On final hearing, the court dismissed the complaint or interplea for want of equity.

Appellant was not a party to the original action, and was not bound by the judgment or by the sale made thereunder, but its interplea was answered and the cause was transferred to the chancery court, hence we may properly pass over the original proceedings in the action of appellee Wood against defendant Reese and treat the status of the present proceeding as an effort on the part of appellant in a court of chancery to enforce an alleged trust whereby Reese held the title to the lands for the use and benefit of appellant.

Appellant offered the depositions of three witnesses .-to establish the alleged trust, and appellees filed a motion to exclude the testimony as incompetent. It was disclosed in' the testimony of appellant’s witnesses that there was a written contract between Reese and appellant whereby he agreed to hold the land in trust for appellant, and to convey the same to appellant. The writing was unaccounted for, and it was improper to prove its execution and contents by oral testimony. The court was therefore correct in excluding this testimony, so far as it referred to the written contract.

It is further contended that there was a resulting trust on account of appellant furnishing money to use in the improvement of the lands, and which was used in such improvement. There is no proof, however, that appellant furnished money with which to buy the lands. The rule is well settled by decisions of this court that, in order to constitute a resulting trust, the contribution of funds upon which the trust is claimed to have arisen must have been made at the time of, or prior to, the purchase, and not afterwards. Reeves v. Reeves, 165 Ark. 505. The proof in the present case does not show that appellant contributed funds with which to purchase the lands, and no trust arose on account of its having furnished funds later with which to improve the property.

Affirmed.


author: Hart, J.

text:
    Hope v. Dodson.
    Opinion delivered November 24, 1924.
    1. Taxation — exemption op city property. — Heal estate used by a . municipality for storing wood to be used in running the engines of its water and light plant is exempt from taxation, under art. 16, § 5, Const. 1874, exempting public property used exclusively for public purposes.
    2. Taxation — public property. — Where the primary use to which property is put is public, such as a waterworks or electric light plant, the fact that an income is derived from its does not affect its character as property devoted to a public use.
    3. Taxation — exemption op public park. — City property, situated within the corporate limits, used as a public park, for track meets and for keeping the city’s work stock, held used exclusively for public purposes within the meaning of Const. 1874, art. 16, § 5, and therefore exempt from taxation.
    Appeal from Hempstead Chancery Court; C. E. Johnson, Chancellor;
    reversed.

      U. A. Gentry, for appellant.
   Hart, J.

City of Hope brought this suit in equity against J. IVf. Dodson, as tax collector of Hempstead County, Arkansas, to enjoin him from collecting taxes on certain real estate owned by the city of Hope, described in the complaint.

It was claimed that the property was exempt from taxation, and the court sustained the exemption as to all the property described in the complaint, except forty acres of land known as the fair-ground property, and block 22. As to this property it was decreed that the complaint should be dismissed for want of equity, and to reverse the decree in this respect the city of Hope has prosecuted this appeal.

John P. Yeasey, the mayor of the city of Hope, was the principal witness in the case. According to his testimony, the city of Hope owned forty acres of land situated within its corporate limits, known as the fair-ground property. The property is inclosed by a wire fence, and has on it a racetrack and buildings for exhibits of different kinds of fairs. It has also barns and stables used for keeping stock exhibited at fairs. No fair has been • held on the ground since 1917. Since that time the land has been used for the purpose of holding track meets and agricultural exhibits, and as a place for keeping about six head of stock belonging to the city; which are worked on the streets. The city does not charge anything for the track meets and agricultural exhibits held on the property. The city owns its own water ¿nd light plant, and uses block 22 as a storage ground for wood used as fuel in its water and light plant. There is also a bandstand in the center of it, and in the summer time it has been used as a band park and for public gatherings of ' different sorts.

The only question in this case is whether the property above described is liable to taxation.

Our Constitution expressly exempts from taxation public property used exclusively for public purposes. Article 16, § 5, of the Constitution of 1874.

Our statute authorizes municipal • corporations to construct or acquire waterworks and works for lighting the streets and other public places by gas, electricity, or otherwise. Crawford & Moses’ Digesit, §§ 7563-7565', and Y 4034-4041.

Block 22 is used by the city for storing wood to be used in running the engines of its water and light plant situated on an adjoining block. Thus it will be seen that block 22 is directly connected with and is a part of the water and' lighting system of the city. It is generally held that a waterworks system owned and operated by a municipality is public property devoted to a public use, and, as such, entitled to exemption from taxation. Commonwealth v. Covington, 128 Ky. 36, 14 L. R. A. (N. S.) 1214; 107 S. W. 231; Augusta v. Augusta Water Dist. 101 Me. 148, 63 Atl. 663; Wayland v. Middlesex County, 4 Gray (Mass.) 500; Perth Amboy v. Barker, 74 N. J. L. 127, 65 Atl. 201; Smith v. Nashville, 88 Tenn. 464, 7 L. R. A. 469; Rochester v. Rush, 80 N. Y. 302; West Hartford v. Water Commissioners, 44 Conn. 360; State v. Toledo, 48 Ohio St. 112; and Stiles v. Newport, 76 Vt. 154, 56 Atl. 662.

The same rule applies to electric -light companies, and, in all cases of this sort where the primary and principal use of which the property is put is public, the mere fact that an income is derived from it does not affect its character as property devoted to public use. Traverse City v. Blair, 190 Mich. 313, 157 N. W. 81, Ann. Cas. 1918E, p. 81; Swanton v. Highgate, 81 Vt. 152, 16 L. R. A. (N. S.) 867, and see generally cases cited in 3 A. L. R., p. 1445 et seq.

Cities and towns are. political corporations, and, under our Constitution, local subdivisions of the State Government, and exist only for public purposes. Hence property held by a municipality in connection with its governmental functions is within the tax exemption clause of our Constitution exempting public property used exclusively for public purposes.

This brings us to a consideration of the forty acres of land known as the fair-ground property. This appeal does not raise the issue of whether or not a city has the authority to purchase ground and erect necessary buildings thereon to be used for holding fairs.

The evidence on this point is that the property has not been used for holding fairs since 1917. According to the testimony of the mayor, the property was used for a fair ground, public park, and a barn for keeping stock used by the city and worked by it exclusively on the streets. He further stated in detail that, at the present time, the property was used by the city for track meets and agricultural exhibits, and, in addition, for the keeping of the stock of the city as above stated.

As we have already seen, our Constitution, exempts from taxation public property used exclusively for public purposes. In discussing this provision of the Constitution, in School District of Fort Smith v. Howe, 62 Ark. 481, Mr. Justice Riddick, speaking for the court, said:

“It' seems clear that the intention was to exempt only that public property which in itself directly sub-served some public purpose by actual use, as distinguished from property belonging to the public but not used by it, and from which a benefit accrues to the public, not by the immediate use thereof by the public, but indirectly through selling or renting the same to private parties.”

In Robinson v. Indiana & Arkansas Lumber Manufacturing Co., 128 Ark. 550, the court recognized that, where the primary use to which the property is put is a public one, it is exempt from taxation' under our Constitution.

Public parks- are essential to the health, comfort and pleasure of the citizens of a city. It is therefore generally held that public parks, maintained at the public’s expense, are within the terms of constitutional provisions exempting from taxation public property used for public purposes. 3 McQuillin on Municipal Corporations, §§ 1115, 1154; Dillon on Municipal Corporations, 5 ed., §§ 976, 1096; Owensboro v. Commonwealth ex rel. Stone 105 Ky. 344, 44 L. R. A. 202; Laird v. Pittsburgh, 205 Pa. 1, 61 L. R. A. 332; People ex rel. v. Chicago, 51 Ill. 17, 2 Am. Rep. 278; and People ex rel. v. Detroit, 28 Mich. 228, 15 Am. Rep. 202. See also Norman v. Kentucky Board of Managers, 93 Ky. 537, 18 L. R. A. 556.

The property in question was situated within the corporate limits, and was not used for any purpose of private gain. The idea of a public park in a city is that it is a place of resort of the people generally for recreation and amusement. The evidence shows that the property was used as a public park, and more particularly for track meets. It is fairly inferable, however, that it was used and kept for the recreation of the citizens. The use of it to exhibit the resources and progress of the county was in the nature of a public use which was calcuted and intended to. benefit the city. Besides this, the property was used for keeping the stock of the city which were used in working the streets. No element of private gain entered into the use of the property at all, and we are of the opinion that’ it was used exclusively for public purposes within the meaning of the Constitution, and therefore exempt from taxation. Of course if, at any time in the future, it should be used by the city for the purpose of private gain, it would-become subject to taxation.

The result of our views is that the decree must be reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion.


text:
    Dillard v. Battle.
    Opinion delivered November 24, 1924.
    1. Trust's — resulting trust. — Where one buys real estate and takes deed in another’s name, a trust generally results by operation of law to him who advances the purchase money, but, where a husband purchases land and take deed to his wife, it is presumed to be an advancement or a gift.
    2. Husband and wife — presumption of gift — rebuttal.—The presumption, where a husband buys land and takes deed to his wife, that he intended a gift or advancement, may be rebutted by antecedent or contemporaneous declarations and circumstances which tend to prove the intention that the wife should hold as trustee.
    3. Trusts — parol proof of resulting trust.. — A resulting trust may be established by parol evidence, but such evidence must be full, clear.and convincing.
    4. Trusts — resulting trust. — Evidence held not to establish a resulting trust in a husband’s favor.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Robt. L. Rogers and Floyd Terral, for appellant.

      Will G. Akers, for appellee.
   Hart, J.

Appellee brought this suit in equity against appellants to quiet title in himself to the town lots described in the complaint.

The object of the bill is to have a resulting trust declared in the lots which appellee,' as husband, had purchased, and, by fraud or mistake, the title to which had been taken in the name of his wife. The appellants claimed title under a will executed in their favor.

The chancery court granted the relief prayed for in the complaint, and quieted the title of the appellee in said lots, free from any right or title in the lots of appellants. The case is here on appeal.

It appears from the record that the books kept by F. M. Fulk in his lifetime showed a sale made on May 11,1907, to A. Battle and Hattie Battle, of lots 14 and 15, block 317, in the city of Little Rock, for the sum of $1,200. Monthly payments on said lots from May 11, 1907, to January 18, 1910, in the handwriting of F. M. Fulk, are shown on his ledger. After his death a deed was executed to said lots to Hattie Battle on February 18, 1911. The notes given for the purchase price of said lots were signed by A. Battle and Hattie Battle.

Aaron Battle was the principal witness for himself. According to Ms testimony, he was 19 years of age when the Civil War commenced, and can neither read nor write. He boug'ht lot 13, described in the complaint, during the lifetime of his first wife. After his first wife died, he married again, and made an agreement with his second wife (Hattie) that he should buy said lots 14 and 15 from Judge F. M. Fulk, and that.the lots should be taken in the name of his wife and himself. It was agreed between them that the survivor should inherit from the other. The witness had a team, and was principally engaged in hauling lumber. In this way he earned the money to pay for the lots. He gave the money to his wife for that purpose, and she attended to the business of making the payments which were due monthly. His wife did not pay any part of the purchase price of said lots, and he did not know that she had taken the deed in her own name. He placed implicit confidence in his wife, and supposed that she had taken the title in their joint names. He learned that his wife had taken the title to the property in her own name after she died, when he applied to a Little Bock bank for a loan upon the property.

It appears from the record that in February, 1911, Hattie Battle mortgaged said lots to secure a loan of . $1,000 with which she built two houses on the lots. The mortgage was satisfied in 1917. During all of this time Hattie Battle took charge of the lots and collected the rents on the houses which she had built on them. On the 17th day of January, 1918, Hattie Battle executed a will in which she gave said lots to her husband, Aaron Battle, during Ms lifetime, and, after his death, lot 14 was to go to two of her nieces and lot 15 was to go to one of her nieces and to the Mount Pleasant 'Baptist Church of Little Bock, of which she was a member. Hattie Battle died on February 17, 1918.

According to the testimony of the minister of her church, Aaron Battle had done very little work for at least nine or ten years before Hattie’s death. Hattie was a hard-working woman, and earned the money by washing and ironing with which she paid for the two lots in question. After she borrowed the $1,000 with which to build the two houses on the lots she rented them out, and, with the rents and what she made by washing and ironing, she paid off this mortgage. The witness very frequently attended to the business of making these payments for her. After her death the witness discussed the conditions of the will with Aaron Battle, and he knew what disposition his wife had made of the lots. Another person who had rented one of the houses from her for several years testified -that he always paid the rent to her, and that Aaron Battle had done but little work since the year 1908.

One of the nieces of Hattie Battle, who was also a beneficiary in the will, and her husband both testified that Aaron Battle had never made any claim to the lots in question, and that he admitted, after her death, that it wTas the property of his wife. The will of his wife was read in his presence, and he did not make any objections to it. Aaron Battle understood the contents of the will.

Another witness testified that she rented one of the houses from Hattie Battle, and always paid the rent to her. Hattie Battle claimed to own the lots in the presence of Aaron Battle, and he never made any objection to her ownership. Hattie continued to work up to the time of her death. During the latter years of her life, Aaron Battle did but little work, and that was in making a truck patch. Several years before his wife died he lost one of his mules, and then hauled ice for a short time with the other one. Then he gave up all work, except a little about his truck patch.

The general rule is that, when a man buys real estate and takes the deed in the name of another, a trust results by operation of'law to Mm who advances the purchase money. If, however, the title is taken in the name of the wife of the person from whom the money comes, it is presumed to have been an advancement or a gift. This presumption, however, may be rebutted by antecedent or contemporaneous declarations and circumstances which tend to prove the intention of the person who furnished the money to buy the estate that the grantee should hold as a trustee, and not beneficially for himself. A resulting trust may be established by parol evidence, but such evidence must be full, clear, and convincing. Milner v. Freeman, 40 Ark. 62; Wood v. Wood, 100 Ark. 370; Bray v. Timms, 162 Ark. 247; and Mann v. Mann, 164. Ark. 43.

To uphold the decree, reliance is especially placed upon the case last cited. We do not think, however, that the evidence in favor of the husband in the present case is so strong as that in the case last cited. In that case the testimony of the appellee was not contradicted. He testified in detail, and showed clearly that Ms money paid for the land in question, and that it was intended that his wife should take the land as trustee for him and not for her own benefit.

In the present case several witnesses testified that Hattie Battle exercised sole control over the lots during her lifetime. She referred to the lots, in the presence of her husband, as belonging to herself, and he never contradicted her. It is true that he claims that he was not able to read and write, and, on this account, did not know that the title had been taken in the name of his wife. .The fact that he was uneducated, however, would not prevent him from- knowing that his wife was claiming the lots as her own. He never interfered with her in the least in her assertion of ownership. He knew that she . had mortgaged them for the purpose of securing a loan with- which to build two houses upon the lots. Three of the witnesses testified that he had recognized that the title to the lots was in his wife after her death. They said that the will of his wife was read over to him, and that he understood that she had given him a life estate in the lots and the remainder in fee to her nieces and to her church.

It is true that the testimony of these witnesses was weakened to some extent on cross-examination, and that they were beneficiaries under the will. 'Their interest, however., was at least no greater than that of appellee himself.

The amount earned either by the husband or wife is not shown. So far as the record discloses, the wife might have earned as much by washing and ironing as the husband earned by hauling lumber. Then, too, it was the duty of the husband to have supported his wife, and this would have reduced his earnings, so that it was more likely that the wife paid for the lots than that he paid for them.

The facts and circumstances testified to by the witnesses for appellants tended to contradict the testimony given by appellee, and we are of the opinion that the chancellor erred in holding that appellee had established a trust in his favor by clear and convincing testimony. Under the evidence as disclosed by the record the chancellor should have dismissed the complaint of appellee for want of equity.

It follows that the decree will be reversed, and the cause will be remanded with directions ■ to dismiss the complaint of appellee, indicated in the opinion.


author: Smith, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Brazil.
    Opinion delivered November 24, 1924.
    Taxation — voluntary payment not recoverable. — Where a railroad company, without protest or objection, paid taxes illegally levied on its railroad property on a valuation above that certified by the Tax Commission, it cannot recover the excess as if paid under duress, as the collector, on default, could only return, the property delinquent, in which case a suit would be brought in which the defense of illegality of the tax could be made.
    Appeal from Perry Circuit Court; Marvin Harris, Judge;
    affirmed.

      Thos. 8. Buzbee, Geo. B. Pugh and H. T. Harrison, for appellant.
    Tbe action of tbe county levying court and the officers of Perry County in increasing* the valuation of appellant’s property above that certified out by the State Tax Commission was unauthorized and illegal. 127 Ark. 349; 130 Ark. 261; 146 Ark. 551; 258 S. W. 609. The payment of the tax in the instant case was not made with full knowledge of all the facts rendering the demand illegal. The action of the levying court raising the valuation certified out by the State Tax. Commission was taken without notice to appellant.

      J. E. Brazil and W. H. Donham, for appellee. ■
    The taxes sought to be recovered back were voluntarily paid, with full knowledge of all the facts and circumstances, and cannot now be recovered. 107 Ark. 24; 37 Cyc. 1178.
   Smith, J.

This cause was heard in the court below on a stipulation, from which we copy the following recitals:

Appellant operates a line of railroad through Perry County.

The State Tax Commission, in manner and form prescribed by law, certified to the tax assessor of' that county the valuation of the railroad’s property located therein, upon which valuation the taxes were to be assessed for the year 1922, and the valuation so certified was $791,442.

Subsequently the levying court of Perry County, at its October term, 1922,. increased the valuation of the railroad’s property 100 per centum above the valuation certified out by the Tax Commission for the county taxes only, but the valuation for other purposes was unchanged. No notice of this action was ordered or was given, but, pursuant to this action of the levying court, the valuation for county taxation purposes was extended against the property of the railroad amounting to $1,582,884, which action resulted in an increase of $3,957.21 in the amount of taxes levied against the property of the railroad.

The action of the quorum court was taken pursuant to an order of mandamus issued in the United States District Court for the Eastern District of Arkansas, Western Division, on the 3rd day of December, 1920, commanding the. assessing officers and the county collector to raise the valuation of all property in Perry County 100 per centum for county purposes, said mandamus being issued in aid of a judgment rendered in said 'court in favor of one Con Grabel against the county.

The revenues derived from the increased valuation were to be applied on said judgment, and were applied from year to year. On July 17, 1922, there was due and unpaid on said judgment the sum of $477.19, at which time the collector issued his cheek for $1,269.93, payable to the order of Grabel, to apply on' said judgment. Gaid check was drawn against the special fund realized from the collection of taxes for the year 1921 in the year 1922, and represented the balance of the special fund remaining in the hands of the collector on the day the check was drawn. The cheek was never delivered to Grabel, but was cashed by some one without authority.

A representative of the railroad applied to the collector of taxes for a statement of the railroad’s taxes, and the statement was furnished on April 9, 1923, as requested, and was based upon the increased valuation made by the levying court, and check for these taxes was remitted to the collector, and this was done without any protest or objection. The railroad company made no objection to the levying of the tax complained of as provided in §§ 9870, 9871 and 9872, C. & M. Digest. At the timé the payment was made the railroad was not advised that there had been collected in the year 1922, for the year 1921, sufficient taxes to pay the judgment in favor of Grabel.

At the time of the commencement of this, suit the defendant collector had in his hands, over and above the amount the railroad would have been required to pay upon the valuation as certified out by the Tax Commission, a sum of money equal to the excess thereof which the railroad had paid.

The parties alleged to have been concerned in cashing, without authority, the collector’s check to the order of G-rabel, as well as the banks through whose agency the collection was made, were made parties defendant.

Attached to the stipulation were exhibits showing the order of the levying court and the mandamus from the Federal court, which last-mentioned order contained the following provision: “It appearing that an-increase in the assessment of property above described for the county general purposes is all that is required to enforce the judgment of this court, this court does not assume jurisdiction further; and this order shall not apply to said assessment for any other purpose.”

There was a prayer in the complaint for a judgment directing the collector to return to the railroad the excess taxes sued for, and, upon submitting the cause on the stipulation set out above, each side asked that judgment be rendered in its .favor. Judgment was rendered in favor of the defendant, and the railroad company has appealed.

It is conceded that the taxes assessed upon the increased valuation were illegally levied. This concession is based upon the authority of the cases of State to use of Craighead County v. St. L. S. F. R. Co., 162 Ark. 443, 258 S. W. 609; Dickinson v. Housley, 130 Ark. 261; and Nelson v. Meek, 127 Ark. 349.

Several questions have been raised in the briefs which we find it unnecessary to consider, as, in our opinion, the payment was a voluntary one, the point being ruled 'by the opinion in the case of Brunson v. Board of Directors, 107 Ark. 24. There an owner of land in an improvement district paid to the collector of taxes certain assessments levied against his land. The assessments were illegal, and the payment was made under protest. The statute under which the collections were being made provided that, if the taxes were not paid within the time, limited by law for that purpose, the collector should file a list of the lands upon which the taxes had not been paid, and thereafter the improvement district would bring suit to enforce payment. The statute authorizing these suits provided that a decree directing the sale of the lands so returned delinquent should be entered to enforce the payment of the delinquent taxes. But the collector did not sell for the delinquent taxes; he merely reported the delinquency, and the authority to make the sale was derived from the decree which was to be rendered after the notice provided by the statute had been given to the landowner, in which the lands were adjudged to be delinquent, and were ordered to be sold unless the landowner paid the sum adjudged against the property within the time specified by the decree.

In that case a landowner whose lands had been taken out of the improvement district by an act of the Legislature, paid the taxes which had been illegally assessed against his land, under protest, and thereafter brought suit to recover them.

Under the facts stated we there held that the taxes were not paid under duress or compulsion. Upon tire authority of Lamborn v. County Commissioners, 97 U. S. 181, and Railroad Company v. Commissioners, 98 U. S. 541, we approved the following rule: “ Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot 'be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary.”

After thus laying down the law, we said that the landowner “was in no immediate danger of being disturbed in the possession of his property, and he would not have jeopardized it by not paying the taxes at the time he did pay them. ■ No irreparable injury could have resulted from his not paying them at the time.. If he had refused payment to the collector, the latter had no authority to levy upon and seize his land to enforce payment. The statute requires suit to be brought by the board of directors of the levee district to collect the taxes. In the event of such suit, the plaintiff would have his day in court and the opportunity to plead and to offer proof in support of his claim that the taxes were illegal. He could have interposed the same defense to that action which he now asserts as the basis for his recovery in the present action. To hold otherwise would put it -in the power of the party paying under protest to choose his own time and opportunity for commencing suit. To permit a person to ignore the remedies permitted under the statute against the alleged illegal taxes upon real estate and pay them, with knowledge of all the facts, and then allow him to recover them back by suit, would be inconsistent with our tax laws. We are aware that there is a sharp and irreconcilable conflict in the authorities on this question, but we believe that our decision is in accord with the weight of authoritjr on the subject.”

What we there said is applicable here. The collector ■ of Perry County would not have seized or sold the property of the railroad if the payment had not been made. The collector of that county could only have done what the collector of the improvement district ■ did, to-wit: return the property as delinquent, after which a suit would have been necessary before the property of the railroad could have been sold for the nonpayment of the taxes. Sections 10’204'eí seq., C. & M. Digest. And in such a suit, as was said in the Brunson ease, supra, the railroad could have made the defense that the taxes were illegal.

A different proceeding is provided by statute for enforcing the lien for taxes against railroads from that employed against the lands of individuals. As to such owners the collector himself makes the sale, after notice has been given as provided by statute; whereas the collector of county taxes merely returns the property of a railroad as delinquent, as was the case in Brunson v. Board of Directors, supra, and the rule announced in that case therefore applies to the payment made by the railroad company in the instant case.

Our attention is called to the case of Dickinson v. Housley, 130 Ark. 259, where, under very similar facts, we permitted the receiver of the appellant railroad company to recover taxes illegally levied. An examination of that case and of the briefs filed by counsel shows, however, that the question of duress Avas not there raised, and our decision and opinion covered only the points raised by counsel. Had this point been raised, or had it suggested itself to us in our consideration of the case, we Avould necessarily have held, upon the authority of Brunson v. Board of Directors, supra, that the payment was a’voluntary one, and that the taxes paid could not be recovered on that account.

It follows therefore that the complaint of the railroad praying judgment for the taxes so paid was properly dismissed, and the judgment in favor of the defendant is therefore affirmed.


text:
    Powell v. Jonesboro, Lake City & Eastern Railway Company.
    Opinion delivered November 24, 1924.
    1. Appeal and error — direction of verdict — review.—Where a verdict was directed against plaintiff, his evidence must be given its highest probative value on appeal.
    2. Negligence. — contributory negligence — effect.—Under Crawford & Moses’ Dig., § 8575, contributory negligence does not bar recovery for personal injury or death caused by the running of trains where the negligence of the person injured is of less degree than that of the employees of the railroad, hut such contributory negligence merely diminishes the recovery.
    3. Negligence--jury question. — Evidence held to warrant the submission to the jury of the question of' comparative negligence of deceased, who was killed by a train at a crossing.
    4. Executors and administrators — right of administrator to sue. — The fact that the administrator had filed his final settlement would not defeat his action for negligent killing of intestate, where his settlement had not been approved.
    Appeal from Craighead Circuit Court, Lake City District; George E. Keek, Judge;
    reversed.

      O. H. Hurst, J. F. Johnston, Denver L. Dudley and Gautney & Dudley, for appellant.

      Eitgene Slom, for appellee.
   Smith, J.

Appellant sued, as administrator of the estate of C. M. Powell, to recover damages for the killing of his intestate by one of the trains operated by appellee railroad company. At the conclusion of all the evidence the court directed a verdict in favor of appellee, and from the judgment pronounced on this verdict is this appeal.

Inasmuch as the verdict was directed against appellant, we must give the evidence offered in his behalf its highest probative value; and, when thus viewed, the testimony may be summarized as follows:

The railroad tracks ran north and south through the town of Monette, and a street of the town crosses the railroad south of the depot. Powell, the deceased, was in 1 his street, on the west side of the track, and he started walking across the track. As he stepped upon the track, he was seen to stop for a short space of time, and was evidently oblivious of the approach of the train, which was coming from the south. No circumstance was offered in evidence which would have excused deceased from looking up and down the track as he started across and for a short time stood near one of the rails. Stott v. St. L. I. M. & S. R. Co., 79 Ark. 137; Tiffin v. St. L. I. M. & S. R. Co., 78 Ark. 55.

Powell was killed on the morning of November 3, 1920. The weather was not clear, but it was dry and dusty, and the approaching train threw up a cloud of dust. The engineer testified that he was keeping a lookout, and did not see Powell, and did not know that the train had struck him until after it had stopped at the depot, as Powell had come up on the track from the fireman’s side, and, by the time Powell had come near enough to the track to be in danger from the train, the engine so limited the engineer’s range of vision that he could not see Powell. The fireman did not testify.

Witnesses who saw the collision say that PoAvell stood still for a short time before being struck, Avhen he was seen to turn as if to leave the track, Avhen the engine struck him, knocking him sixteen or eighteen feet.

Powell lived for two days, and suffered consciously.

The train approached the station rapidly, and the bell was not rung nor was the whistle sounded.

Under the facts stated, PoAvell Avas guilty of negligence contributing to his death; but it does not follow necessarily that the right of his administrator to recover damages for his death is defeated on that account. Contributory negligence on the part of the person injured was formerly an absolute defense to suits for damages in cases of this character; but that rule was changed by act 156 of the General Acts of 1919, page 1-13, which appears as § 8575, O. & M. Digest, and reads as follows: “In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided that, where such contributory negligence is shown on the part of the person injured or killed, the amount -of recovery shall be diminished in proportion to such contributory negligence. ”

Construing this statute in the case of St. L. S. F. R. Co. v. Kirkpatrick, 155 Ark. 632, we held that.the contributory negligence of the person injured did not defeat a recovery where such negligence was less than that of the operatives of the train inflicting the injury; and it is the opinion of the majority of the court, under the facts herein stated, that it was properly a question for the jury to compare the negligence of Powell 'with that of the operatives of the train, and that it cannot be said as a matter of law that Powell’s negligence was not less than that of the railroad.

Powell should have looked for the train, and, had he done so, he could have seen it; but a proper lookout should have been kept, and, had this been done, Powell would have been seen and the jury might have found that, had the bell been rung or the whistle sounded, he could have stepped aside and have averted his injury, even though the train could not have been stopped in time to avoid striking him.

The majority have concluded therefore that a verdict should not have been directed in favor of the railroad company, but that the jury should have been allowed to consider and to compare the negligence of Powell with that of the railroad, under instructions declaring the law that a recovery could be had if Powell’s negligence was found to be less than that of the railroad company, in which event the recovery should be diminished in proportion to such contributory negligence. St. L. S. F. R. Co. v. Kirkpatrick, supra; Davis v. Scott, 151 Ark. 34.

If is insisted that the administrator had no right to maintain this suit, for the reason that he had filed a final settlement at the time of the institution of the suit. This suit being- only for the benefit of the estate, an administrator only could sue for the damages recoverable on that account. But the fact that the administrator had filed his final settlement would not operate to defeat the suit and as divesting the administrator of his capacity to sue, unless this settlement had been approved and the administrator discharged, as the probate court' might well have continued the administration for the purpose of distributing any recovery by the administrator.

For the error indicated the judgment is reversed, and the cause is remanded for a new trial.


author: Humphreys, J. McCulloch, C. J.

text:
    Harmon v. United Mine Workers of America.
    Opinion delivered November 24, 1924.
    Trade unions — liability for procuring discharge of employee.— Where a mining company had contracted with a miner’s union to employ only its members, the discharge of plaintiff, employed for no definite period, which was procured by the union on the ground that he was no longer a member, gave him no cause of action against the union.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    affirmed.

      L. A. Williams and J. 8. Holt, for appellant.
    A combination of workmen to compel the discharge of a fellow-workman is .an .unlawful conspiracy. 52 L. R. A. (N. S.) 1052. When they make a demand for discharge of a fellow workman, they step beyond the bounds of right (2 K. B. 600), and are liable in damages for the consequences. 90 Me. 167; 77 Md. 396; 45 Fed. Rep. 135. The complaint states a cause of action. 152 N. Y. 33; 46 N. E. 297; 57 Am. St. Rep. 496; 37 L. R. A. 802. A labor trust in restraint of free labor is opposed to public policy. 168 N. Y. 89; 183 N. Y. 207; 5 A. & E. Ann. Cas. 280. The act of Congress approved July 2, 1890 (Stat. at Large 200) applies to labor combinations. 54 Fed. Rep. 994.

      Webb Covington, for appellee.
    The constitution and by-laws of the Miners’ Union constituted a contract between the members of the organization. 159 N. Y. S. 1053; 194 S. W. 1179; 110 Gal. 297; 47 Pac. 887; 102 Ind. 262; 1 3ST. E. 571; 38 Mo. App. 333; 100 Atl. 731; 80 111. 134. The court will not interfere with labor unions in the peaceable enforcement of their rules. 53 Fla. 969; 43 So. 590; 26 Ore. 527; 38 Pac. 547; 46 Am. St. Rep. 640; 28 L. R. A. 464; 47 N. J. Eq. 519-; 20 Atl. 492; 91 Minn. 171; 97 N. W. 663; 103 Am. St. Rep. 477; 63 L. R. A. 753; 121 Fed. 563. Except to see that the proceedings were in good faith. 93 Mo. App. 383; 67 N. Y. S. 819; 96 N. Y. S. 644; 116 Wis. 450; 93 N. W. 473; 75 Oal. 308; 17 Pac. 217; 7 Am. St. R. 156; 44 111. App. 278; 73 N. J. L. 729; 65 Atl. 165; 9 L. R. A. (N. S.) 254. The remedies provided for in the rules of the order must be exhausted before resorting to the courts. 116 La. 27; 40 So-. 700; 114 Am. St. Rep. 549; 5 L. R. A. (N. S.) 891; 144 Mich. 422; 108 N. W. 362; 103 N. Y. S. 1003; 14 N. Y. S. 361; 76 Tex. 552; 13 S. W. 379; Í13 S. W. 144. And the fact that the plaintiff has not pursued these remedies is a good defense to an action in the courts. 110 Cal. 297; 42 Pac. 887; 144 Mass. 175; 10 N. E. 776; 28 Mo. App. 463; 51 How. 92. A contract for the employment of members of the union only is valid. 152 N. Y. 33; 46 N. E. 297; 57 Am. St. Rep. 496; 37 L. R. A. 802; 91 N. Y. S. 185.
   Humphreys, J.

Appellant brought suit in the circuit court of Franklin County, Ozark District, against appellees to recover $5,000 actual and $5,000 punitive damages for prevailing upon his employer, Western Coal & Mining Company, to discharge him as a coal miner from his employment in Mine No. 2 on. its property at Denning, Arkansas.

The. complaint alleged, in substance, that the United Mine Workers of America is a voluntary unincorporated association, composed of appellees and other individuals, organized for the purpose of bringing about an increase in their wages and bettering their condition by legislation, conciliation, joint agreement, and strikes; that appellant was one time a member thereof, but was expelled from the association because he joined the Ku Klux Klan, at which time he was in the employ of the Western Coal & Mining Company, a corporation engaged in .mining coal at Denning, in said county; that he appealed from the local union expelling* him to the district board, where the order was affirmed; that he appealed from the order of affirmance to the Totemalional union executive board, and that said last named board has failed, refused and neglected to act upon said appeal; that the constitution of the International Workers of the United Mine Workers of America prohibited its members from joining the I. W. W., W. C. U. and the Ku Klux Klan; that before, at the time of and after his expulsion, the coal mine in question was operated by the Western Coal & Mining Company under contract with the United Mine Workers of America, by which only members of the association should be employed to dig or mine coal; that, after appellant was expelled, appellee's conspired to and did unlawfully procure appellant’s discharge by serving the following notice upon his employer:

“Denning, Arkansas.
“To Western Coal & Mining Company:
“Oentlemen: You are hereby notified that J. P. Baker, Walter Harmon, W. B. Sublett, Elmer Carter, are no longer members of the United Mine Workers of America, and are not affiliated with any local union of said organization.
“You are therefore notified that we cannot continue longer in your employment, under the terms of the contract existing between yourself and the United Mine Workers of America, and shall cease work on and after November 7, .1922, unless we are otherwise notified by the agents of the Western Coal & Mining Company that the terms of the contract will be strictly adhered to.
“Signed on behalf of the employees and members of Local Union No. 1814, employed at Mine No. 2 and Mine No. 6.
“Chas. Ireland, President,
“E. W. Mackey, Secretary.”

A demurrer was filed to the complaint, and sustained, over, the objection and exception of appellant. Appellant refused to plead further, and stood upon his complaint, whereupon same was dismissed by the court. From the judgment sustaining the demurrer and dismissing the complaint an appeal has been duly prosecuted to this court.

Several questions are raised and urged by appellant as grounds for a reversal of the judgment, but it is unnecessary to discuss or decide them, as no legal damages were alleged. This question raises itself, and is determinative of the case. The complaint only alleged an employment of appellant toy the Western Coal & Mining Company at will. It was not alleged that the employment was for a definite period.. There can be no damages resulting to an employee on account of a discharge from an employment at will. The motive of the employer in discharging him is immaterial, and cannot be questioned. The discharge may have been inspired by a bad motive, for the legal right to determine an employment at will is absolute in either the employer or the employee. This principle of law was announced and applied in the case of Cusumano v. Schlessinger, 152 N. Y. S. 1081, which is exactly in point. The syllabus of that case correctly reflects the purport of the opinion of the court, and is as follows:

“Plaintiff, whose employer was a member of a cloak and suit makers’ association, which had agreed with defendant union that only members of the union should be employed by the association, who was not employed for any definite time, and who was discharged at the' instigation of delegates of the association and of the defendant unión, on information to his employer,' in fact true, that he was not a member of the union, liad no cause of action against the defendant union.”

No error appearing, the judgment is affirmed.

concurring opinion.

McCulloch, C. J.

The writer and Mr. Justice Smith concur in the judgment of affirmance on grounds unnecessary to discuss, since they are not discussed in the opinion of the majority, but we are unwilling to subscribe to the doctrine that a member of an organization under contract with employers for the benefit of its members cannot recover damages for breach of the contract from one who has wrongfully caused the breach, merely because the contract of employment was not for a definite period.

A contract of that kind may not be enforceable against the employer (St. L. I. M. & S. Ry. Co. v. Matthews, 64 Ark. 398), nevertheless one who wrongfully causes a discharge from employment thereunder should be held liable in damages for such wrongful act.


text:
    Sloan v. Newman.
    Opinion delivered November 3, 1924.
    1. Evidence — hearsay.—In a will contest statements of a third person concerning- the habits and condition of the testatrix are hearsay and incompetent.
    2. Wills — evidence as to mental capacity. — In a will contest where contestants alleged that testatrix was a paranoiac and quarrelsome, it was competent to show that she was not of that type and temperament, but was affable and liked by every one.
    3. Evidence — opinion of nurse as to mental capacity of testatrix. — In a will contest it was not error to allow an experienced nurse who had attended testatrix in her last illness to state, by comparison with other persons with whom she came into contact professionally, her opinion of the mental capacity of the testatrix.
    4. Evidence. — photographs.—In a will contest where it was contended by contendants that the devise to the principal beneficiary, who was not of kin to the testatrix, was an unusual and unnatural one, and such beneficiary had testified concerning the intimate relations between testatrix and herself, it was competent for her to introduce photographs of testatrix and herself tending to corroborate her testimony as to such relationship.
    5. Wills — competency op letters of testatrix. — Testatrix’s letters written shortly after execution of her will are competent to show her mental condition.
    6. Appeal and error — necessity for specific objection. — The mere fact that an instruction is argumentative does not call for a reversal unless the objection was specifically pointed out.
    7. Wills — contest—instruction.—In a will contest, it was proper to refuse an instruction that, if the testatrix conceived that her niece, one of the contestants, was unappreciative or neglectful of her,, and that this idea was not based on evidence, the jury might find that she entertained*an insane delusion with respect to such niece; such instruction being on the weight of evidence.
    8. Appeal and error — burden of showing error. — The burden of showing alleged misconduct of the litigant, the attorneys or the trial judge, devolves upon the complaining party.
    9. Continuance — postponement of hearing — discretion.—Where the court adjourned over for about 20 days to hear a motion for new trial, it was not an abuse of error to decline a further postponement. of the hearing.
    Appeal from Deslía Circuit Court; T. G. Parham, Judge;
    affirmed.

      David A. Gates and H. PL. Hays, for appellant.
    It is error to submit to a jury issues that do not exist. 90 Ark. 439. Instructions are erroneous which assume that facts necessary to sustain them have been proved. 14 Ark. 286; Id. 530; 18 Ark. 521; 20 Ark. 171; '23 Ark. 411; 45 Ark. 256. It is error to instruct the jury as to the force or weight of the evidence. 37 Ark. 580. The refusal of an instruction correctly applying the law to the facts in the case, which is not covered by any other instruction, is error.' 127 Ark. 125; 87 Ark. 243.

      E. E. Hopson and Williamson & Williamson, for appellee.
    The court correctly sustained the objections to the testimony of Mrs. Browning, as being hearsay and incompetent; 151 Ark. 157; Crawford’s Digest, Ark., §§ 102-104, pp. 2008-2010. It is not prejudicial error to exclude testimony where the information sought has already been substantially elicited. 87 Ark. 285, 286. An assignment or error in excluding a question propounded to a witness will not be considered on.appeal, unless the record shows what the answer of the witness would have been. 162 Ark. 584 ; 88 Ark. 562; 87 Ark. 123; 105 Ark. 231; 154 Ark. 612. ' The photographs introduced by appellee were corroborative of the testimony that Mrs. Rogers had ¡been devoted to appellee from her babyhood, and they were competent and admissible. 159 Ark. 305; 155 Ark. 585; 111 Ark. 88; 22 Corpus Juris 913, § 1115; Id. 253, § 245; Id. 768, § 866; 10 R. C. L. 1153, § 356; 85 Neb. 175; 7 A. L. R. 1344; 2 R. C. L. 247, § 205, and p. 250, § 206; 84 Ark. 323. If the photographs had no probative force, as suggested, their introduction was harmless. 150 Ark. 215; 152 Ark. 197. The letters written by the testatrix to the mother of appellee were introduced for the purpose of judging her testamentary capacity, and they were competent for that purpose. 122 Ark. 407, 413. It is sufficient answer to appellant’s objections to instructions given, to1 sa.y that they were taken from the decisions of this court, and are all well established rules of law in this State. 49 Ark. 367; 87 Ark. 243, 297; 64 Ark. 349; 66 Ark. 623; 95 Ark. 158; 114 Ark. 69; 133 Ark. 448; 156 Ark. 443; 156 Ark. 528; 154 Ark. 228. Appellant’s requested instruction No. 2 was a comment upon the weight of the testimony, was argumentative, and highly prejudicial. It was therefore properly refused. 31 Ark. 306; 87 Ark. 243; 29 Ark. 151.
   McCulloch, C. J.

This appeal involves a contest of the last will and testament of Mrs. Addie Godwin Rogers, who resided at Arkansas City, in Desha County, and died on April 25,1922, at the age of about fifty-five years. Mrs. Rogers had been twice married — first to Henry Townshend, a prominent citizen of Arkansas City, who died about ten years ago, and the last time to Mr. F. M. Rogers, a prominent member of the bar of Arkansas City, who died about a year before her death.

Mrs. Rogers had no children, and her next of kin at the time of her death were her brother and sister, Lennie Godwin and Bets ye Godwin Moore, and her nieces, Dorothy Dickinson Sloan and Eunice Dickinson, the children of her deceased sister, Mrs. J. W. Dickinson, all of whom are contestants, and also her nephew, John A. Dickinson, who was one of the beneficiaries under the will.

Mrs. Rogers appears to have had an estate of about $57,000, and in her will she left $10,000 in money and bonds to her nephew, John A. Dickinson, and the remainder of her estate, both real and personal, to Evelyn Newman, who was not related to Mrs. Rogers, either by consanguinity or affinity. It appears, however, from the testimony, that Evelyn Newman, the chief beneficiary under the will, and who, at the time of the death of Mrs. Rogers, was a child about fifteen years, old,, was the daughter of friends of Mrs. Rogers who resided in a town in an adjoining county. The evidence shows beyond dispute that Mrs. Rogers became very fond of the child during the latter’s infancy, and showed the utmost devotion to her as long as she lived.

The will was offered for probate in the probate court of Desha County, and there admitted, and an appeal was prosecuted to the circuit court.

Appellants contest the will on the ground that Mrs. Rogers lacked sufficient mental capacity to execute a will, and that the execution of the instrument was induced by undue influence. Appellants attempted to prove at the trial that Mrs. Rogers was a paranoiac, laboring under a delusion that one of her nieces was neglectful of her and was unappreciative of what she (Mrs. Rogers) had done for her, and that her niece’s conduct towards her was not considerate or respectful. There was a great volume of testimony introduced— experts on insanity, and many persons who were intimately acquainted with Mrs. Rogers — and there was testimony of a substantial nature tending to show that Mrs. Rogers was a paranoiac, suffering from the delusion mentioned above, but there was substantial evidence to the contrary, .and we must treat the verdict of the jury as settling that issue. In fact, it may be said that the great preponderance of the testimony appears to support the conclusion that Mrs. Rogers was not lacking in mental capacity. We do not discover any evidence of a substantial nature tending to show undue influence, and that issue was not submitted to the jury.

The motion for .a new trial contains forty-eight assignments of error relating to every phase of the trial —the rulings of the court concerning the introduction of evidence, the court’s charge to the jury, alleged misconduct of the trial judge, one of the litigants, a juror, and counsel in the ease. Some of these assignments are of the same nature, and need not be discussed separately; others we find are not properly raised in the record. Hence we will discuss only such assignments as are properly raised and deemed important.

It is contended that the court erred in refusing to permit Mrs. D. U. Browning, a witness introduced by appellants, to testify concerning certain statements of Mrs. Dickinson, a sister of the testatrix. One of the excluded statements of the witness was that Mrs. Dickinson often warned the witness.to take no offense at what Mrs. Rogers did or said, as she used morphine, and was not responsible. Another of the excluded statements of the witness was that she knew that Mrs. Rogers was addicted to the use of morphine because Mrs. Dickinson had told her so. Another statement of the witness related to what Mrs. Dickinson wrote to witness while she was in Hot Springs. The will in question was executed by Mrs. Rogers at Arkansas City on December 30, 1921, and, according to the testimony, the testatrix had been ill and under treatment for several months before that time. Mrs. Rogers came to Little Rock, and stayed with her sister, Mrs. Dickinson, during a portion of her illness, and Mrs. Dickinson accompanied her to Hot Springs, where she went for treatment. Mrs. Dickinson died suddenly in the autumn of 1921, while she was at Hot Springs with Mrs. Rogers, her sister. The statements of Mrs. Browning related to what Mrs. Dickinson had said to her, about that time, concerning the habits and condition of the testatrix. We are of the opinion that this testimony was hearsay and clearly incompetent.

Mrs. Demarke, a lady residing in Arkansas City, and an acquaintance of long standing of Mrs. Rogers, was introduced by appellee as a witness,' and she testified that she had been intimately acquainted with Mrs. Rogers for a long time and up to her death, and that she had seen her frequently just before she went to the hospital where she died, and that Mrs. Rogers was a very bright, alert woman, and took an active interest in all the affairs of the community, and was a woman of fine business qualifications. Counsel for appellee asked Mrs. Demarke the question, “How was Mrs. Rogers received in Arkansas City?” and the witness made this reply, “Everybody liked her and was fond of her.” Objection was made by appellants and overruled by the court, and the ruling is now assigned as error. If it will bé conceded that the testimony is of sufficient importance to form the basis of an assignment of error, we do not think there was any error in permitting the witness to answer the question. The whole basis of the contest was that Mrs. ■Rogers was a paranoiac, that she was a “quarrelsome, querulous and complaining person,” and testimony was introduced by experts that this was an indication of mental unsoundness of the type attributed to the testatrix. It was competent to show by this witness that Mrs. Rogers was not a woman of that type and temperament, but that, on the contrary, she was an affable woman, who was popular among her intimate friends, and that the people in the town where she lived were all fond of her.

It is next contended that the court erred in permitting a witness, Miss Rose, who was a nurse in the hospital in New Orleans where Mrs. Rogers died, to state, by comparison with other persons with whom the witness came in contact professionally, her opinion of the mental capacity -and strength of the testatrix, Mrs. Rogers. Conceding that the form of the question constituted an awkward method of eliciting the testimony, yet it was perfectly competent to take the statement of the witness as to Mrs. Rogers’ .mental capacity at the time she was in the hospital, which was a short time after the execution of the will, and while she'was attended professionally hy the nurse, who was shown to he a person of long experience and who had opportunities of judging the mental capacity of Mrs. Rogers. There was no error in allowing the witness to testify on this subject, and the form of the question was not prejudicial.

The contestee, Evelyn Newman, was introduced as a witness in her own behalf, -and testified concerning the intimate relations between herself and Mrs. Rogers since her own early recollection. She related many evidences of Mrs. Rogers’ generosity and affection for her and her tender solicitude. She ' was permitted, over objections of appellants, to exhibit to the jury photographs of herself and Mrs. Rogers, taken with each of the latter’s husbands, one of the pictures being taken when the witness was a very small child. The tendency of these photographs was to show the intimate relations between the witness and Mrs. Rogers, and they had some probative force in that direction, but they were merely cumulative of the -positive^statements of the witness with reference to the attitude of Mrs. Rogers towards her. The contention of appellants was that the disposition made by Mrs. Rogers of her property was an unusual and unnatural one, and the contestee had the right to meet that theory by testimony showing the -affection of the testatrix for the chief beneficiary under her will. The photographs were, as before stated, merely corroborative of what the witness testified, and, we think, were competent for that purpose.

It is next contended that the court erred in permitting appellee to introduce numerous letters written by Mrs. Rogers to Mrs. Newman, the mother of the contestee, while she was in the hospital at New Orleans. These letters were all written shortly after the execution of the will. The letters discussed personal affairs, such ás the condition of health of the testatrix and the details of her life in the hospital, and also dealt with many ordinary affairs of life. Some of the letters also discussed the conduct of a niece of the testatrix, one of the appellants, concerning a request for a piano. Appellee sought to introduce these letters for the purpose of throwing light upon the mental condition of the testatrix. We think the letters were competent for that purpose. Mason v. Bowen, 122 Ark. 407.

There are several assignments of error with respect to the refusal of the court to permit'appellant’s counsel to propound certain questions to witnesses, and in some of those instances the record has not been perfected by showing what the witnesses would have stated if permitted to answer. In another instance, where such ■ an error is assigned, the record shows that the court, after first holding that the testimony was incompetent, changed the ruling and allowed the testimony to be introduced. In some other instances it is conceded in the argument that there was no prejudicial error.

There are numerous assignments of error with respect to the court’s charge in giving instructions requested by appellee and refusing to give certain instructions requested by appellants. These assignments are too numerous and lengthy for discussion in this opinion, for our conclusion is that the instructions on the issue of mental capacity all conformed to the law as settled by this court in McCulloch v. Campbell, 49 Ark. 361; Taylor v. McClintock, 87 Ark. 243. The only criticism that can be justly made of the court’s charge is that some of the instructions are open to the objection that they are slightly argumentative, but there was no objection made on that ground. Unless an instruction is obviously on the weight of the evidence, the mere fact that it contains statements bearing an argumentative tendency does not call for a reversal, unless the objection is specifically pointed out to the trial court.

Error of the court is assigned in refusing to give the following instruction:

“2. The jury are instructed that in any circumstances a niece is a natural object of an aunt’s bounty. In the absence of a will or. other testamentary disposition of property, a niece takes the property of an aunt or an uncle as against persons unrelated to the decedent, and against all others except those nearer than a niece or nephew in blood to the decedent. The effect of a will is to change the manner in which the law distributes the estate of a decedent. In this case, if there were no valid will, the property of Mrs. Addie Godwin Rogers would be distributed under the law, one-third to her sister, Betsie Godwin Moore; one-third to her brother, Lennie Godwin, and the remaining third share and share alike between Dorothy Dickinson Sloan, Eunice Dickinson and John Allen Dickinson, children of her deceased sister, Mrs. Eunice Dickinson. If the jury believed from the evidence that Mrs. Addie Godwin Rogers, the aunt of Mrs. Sloan, conceived the idea that Mrs. Sloan was not nice to her, was unappreciative of what she (Mrs. Rogers) had done for her, or that Mrs. Sloan was neglectful of her; if there was no evidence upon which Mrs. Rogers could have based such a belief ; if, in fact, Mrs. Sloan was nice to Mrs. Rogers, was appreciative of what Mrs. Rogers had done for her, and was careful to provide for the comfort of Mrs. Rogers, the jury may find that there was an insane delusion on the part of Mrs. Rogers with respect to her niece, and, if the jury further finds there was such insane delusion, and that, in making the will propounded in this case, Mrs. Rogers was influenced by such insane delusion with respect to its provisions as they relate to Mrs. Sloan, they must find against the will.”

One of the objections to this instruction, and which, we think, justified the court in refusing it, is that it is argumentative. Another reason, and a more emphatic one, why it was proper to refuse it, is that its language constituted a charge on the weight of the evidence, in telling the jury that, if the conception of the testatrix with respect to the conduct of the niece was without evidence to base it upon, “the jury may find that there was an insane delusion on the part of Mrs. Rogers with respect to her mece.” The effect of this language was to tell the jury that the mere fact that the testatrix conceived the idea, based upon no evidence, was sufficient to justify a finding of an insane delusion. The court was therefore correct in refusing to give that instruction.

All of the assignments of error in the motion for a new trial with respect to misconduct are without support, except the bare statements in the motion. It devolved on the complaining parties to prove this misconduct. It is argued that the burden of proof as to misconduct of the litigant, the attorneys and the trial judge himself, should not be placed on the complaining party. We think that the distinction sought to be made by counsel is unfounded; for, wherever it is sought to impeach the verdict of the jury on account of any misconduct, before the court is justified in setting aside the verdict, there ought to be some proof made, either directly or by circumstances, to establish the alleged misconduct.

It is also argued that the court erred in not postponing the hearing in order to procure the attendance of the court stenographer, but there is no showing in the bill of exceptions that the stenographer was absent. The court adjourned over for about twenty days to hear the motion for new trial, but declined to grant further postponement. This was a matter of discretion for the court, which does not appear to have been abused.

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


text:
    Citizens’ Union National Bank v. Thweatt.
    Opinion delivered November 10, 1924.
    1. Bills and notes — notice op failure of'consideration. — A purchaser of a note, knowing that it was given for a manufactured article, is not charged with notice that the article is worthless.
    2. Bills and notes — innocent purchaser. — Information acquired by a purchaser of a note, a long time after making the purchase, that the manufactured article for which it was given had proved to be worthless, did not affect the purchaser’s good faith.
    3. Commerce — foreign corporation doing business in state. — The shipment of manufactured articles by a foreign corporation from without the State to its agent for delivery within the State to purchasers is not doing a business in the State, but a mere matter of detail in the manner of conducting its business as part of interstate commercé. ‘ •
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    reversed.

      M. F. Elms, for appellant.
    The only inquiry the court should have permitted was the proposition whether the evidence was sufficient to show that appellant was not an innocent purchaser of the note sued on; and, there being no dispute that it purchased the note long before maturity, for a valuable consideration and in due course, the point of the inquiry was whether or not the’appellant, at the time it purchased the note, or before it paid for the same, had any notice of any possible defense to or defects in the instrument. 90 Ark. 93. Mere knowledge that the Louisville Silo & Tank Company was engaged in the business uf selling and distributing silos and cribs was not sufficient to charge appellant with notice of defenses to or defects in the note. 94 Ark. 100. After-acquired knowledge or notice of defenses or defects is not effective. 90 Ark. 93.

      Cooper Thweatt and W. A. Leach, for appellee.
    It being admitted that the Louisville Silo- & Tank-Company was a foreign corporation and had not complied with the laws of this State with reference to such lorporations doing business in the State, the note, even in the hands of an innocent purchaser, cannot be enforced. 136 Ark. 5'2; 148 Ark. 151; 141 Ark. 38. If the trial court erred in its instruction to the effect that if the appellant knew that the note was given for the purchase price of the granary, it was bound by the implied warranty that it was fit fo.r the purpose for which it was sold, and was therefore not an innocent purchaser, a reversal of the case does not necessarily follow, and should not, if the above contention is, correct.

      M. F. Elms, for appellant, in reply.
    The transaction, as shown by the evidence, did not constitute doing’ business in this -State within the prohibition of the statute. The shipment of the granary along with others in the same car, did not alter its character as an interstate shipment, neither did its consignment to the salesman in Arkansas for distribution to the various purchasers change its character as an interstate shipment. 227 U. S. 389, 57 L. ed. 565; 227 U. S. 399, 57 L. ed. 569. '
   Smith, J.

The Louisville Silo & Tank Company, through its salesman, obtained an order for a steel granary from appellee, J. Gr. Thweatt. This order was transmitted to the company’s office in Louisville, and there accepted. The granary sold appellee was shipped from Ohio, in a car consigned to the agent at Stuttgart, along with a number of other granaries for which the agent had taken orders. Each granary was separately packed, and each had the name and address of the purchaser stamped thereon. The shipments were made together to secure the advantage of car lot rates, but some of the granaries were taken out of the car in which they were originally shipped at' Stuttgart and were loaded into a car for delivery at the homes of the purchasers, some of whom did not live at Stuttgart and did not receive their freight at that place-. Appellee resided at DeValls Bluff, and the granary consigned to him was reloaded at Stuttgart and shipped by local freight to DeValls Bluff, where delivery was made. '

Upon delivery of the granary, appellee paid the portion of the purchase price in cash which the contract of sale required,' and executed his note for $469, the balance of purchase money, payable to the order of the silo company. This note was dated September 30, .1918, and matured January 1, 1919, and bore interest at six per cent, per annum from its date. On October 7, 1918, the note was sold, indorsed and delivered by the silo company to the appellant bank, whose place of business is in Louisville, Kentucky, and, according to the testimony offered on behalf of the bank, it paid full value for the note, and acquired the same without notice that there was any defense to it:

The granary was put up, and proved defective and' valueless for the purpose for which it was sold, in that it admitted rain in openings which were intended only to admit air. An unsuccessful attempt was made to amend the defect, which appellee said was structural and not peculiar to the granary purchased by him.

At the time of the sale of the granary to appellee, the agent of the silo company took a large number of other orders, the silo included in the case of Crawford v. Louisville Silo & Tank Co., ante p. 88, being one of them.

Appellee refused to pay the note, and this suit was' brought to enforce its collection. There was a verdict and a judgment in his favor, and the bank has appealed.

A vice president of the plaintiff bank, who acted for the bank in the purchase of the note, testified that the silo company was one of its solvent customers, and that he knew the business in which it was engaged, but no one connected with the bank had any knowledge that there was any defect in the silo which the company was selling.

The undisputed testimony shows that, at the time the bank purchased the note sued on, the defect which is said to render the silo valueless had not been discovered, and the bank’s vice president testified that, upon the maturity of the note, it was sent to a bank in this State for collection, and that the collecting bank kept the note for several months before reporting that' collection conld not be made, and that the employee of the plaintiff bank whose business it was to trace the note, had negligently failed to do so or to report its non-collection, and, when this was finally done, several months had elapsed. The silo company was then called upon to make good its indorsement, but declined to do so on account of the delay in reporting to it the failure to make the collection, whereupon this suit was brought.

It was the theory of the trial court, as is indicated by the instructions given, that there was an implied warranty that any manufactured article was reasonably fit for the use for which it was sold, and that not even an innocent purchaser of such a note could recover on it if he knew that the note was given for a manufactured article and the article proved worthless, even though the purchaser of the note was not aware of the defect in the article sold. This is not the law, and there appears to be no testimony charging the bank with notice of the failure of the consideration for the note, except the fact that the bank knew it was for a manufactured -article.

The testimony does show that the bank was advised of the defect before bringing this suit; but this information was not acquired until long after the purchase of the note, and this after-acquired information would not, of course, affect the bank’s status as an innocent purchaser. Hood v. Thurman, 90 Ark. 93.

There is no testimony in this case which' brings it within the rule announced in the cases of Metropolitan Discount Co. v. Fondren, 121 Ark. 250; Iowa City State Bank v. Biggadike, 131 Ark. 514, and Metropolitan Discount Co. v. Flippo, 163 Ark. 331.

Appellee apparently concedes. now that the ■ judgment in his favor cannot be sustained upon the ground that the appellant bank was not an innocent purchaser of the note. At any rate, a recovery can not be defeated on that ground.

Appellee does insist, however, that the judgment in his favor is correct, and should be affirmed, because the note was executed to a foreign corporation doing business in this State in violation of the laws of this State. Appellee’s brief urging this defense was filed before the decision of this court in the case of Crawford v. Louisville Silo & Tank Co., referred to above, was handed down, and the opinion in that case decides the point adversely to appellee’s contention. That was a suit by the silo company itself to recover -on a note given it for one of the silos which was included in the same shipment as the silo sold appellee, and we there said the.shipment of the silos to the company’s agent at Stuttgart, for delivery from that city to the various consignees whose names' were stamped on the respective silos shipped to various purchasers, was merely a matter of detail in the manner in which the business Was conducted, and did not affect the character' of the transaction as interstate commerce.

It follows therefore that the judgment in favor of the appellee must be reversed, and, as the.case has been fully developed, judgment will- be rendered here for appellant for the face of the note and interest.