author: Humphreys, J.

text:
    Gurley v. State.
    Opinion delivered March 5, 1923.
    1. Embezzlement — indictment—variance.—Where the indictment charged embezzlement of $800 gold, silver and paper money of the value of $800, property of the prosecuting witness, and the proof showed that the company which accused owned and managed had collected $800 in the form of a check for the prosecuting witness, received credit therefor at the bank, and "expended same for its private uses, there was no variance between the indictment and proof.
    2. Criminal law — judicial notice. — It is common knowledge that banks deal in money only in giving credit to depositors.
    3. Embezzlement — criminal intent. — Where there has been a wrongful conversion of a fund, criminal intent to embezzle may be inferred from the act itself, and proof of concealment on defendant’s part is unnecessary.
    Appeal from Pulaski Circuit Court,-First Division; John W. Wade, Judge;
    affirmed.

      Lewis Rhoton and X. O. Pindall, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Win. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and convide;] of the crime of embezzlement in the First Division of the Pulaski Circuit Court, and as punishment therefor was adjudged to- serve one year in the State Penitentiary, from which judgment an appeal has been duly prosecuted to- this court.

The indictment, omitting formal parts, is as follows: “The said J. A. Gurley on the 1st day of May, 1922, in the county and State aforesaid, then and there being over the -age of sixteen years, and being the agent of E. T. Foster, and having then and there in his custody and possession, as such agent as aforesaid, eight hundred dollars ($800), gold, silver and paper money of a value of eight hundred dollars ($800), the property of the said E. T. Foster, did unlawfully, fraudulently and feloniously make away with and embezzle and convert to his own use the said sum of eight hundred dollars ($800) as aforesaid, without the consent of the said E. T. Foster, against the peace and dignity of the State of Arkansas.”

The facts pertinent to the questions presented by this appeal for determination are as follows: E. T. Foster, at the instance of appellant, loaned Mrs. Anna Grantham $800, taking her note due January 1, 1921, to which bank stock was attached as collateral security. On December 8, 1920, appellant, as vice-president of J. A. Gurley Company, a -corporation, advised E. T. Foster, who was then residing in Oklahoma City, Oklahoma, that Mrs. Grantham wanted to know where she could pay the note, offering to handle the collection according to Foster’s wishes. The note and attached collateral were in a lock box in a Memphis bank. E. T. Foster directed a friend to forward the note and collateral to appellant by registered letter, and wrote appellant to have Mrs. Grant-ham purchase and mail him a cashier’s check for the amount due, and, when she did so, to deliver the note and collateral to her. Instead of doing this, appellant procured a check for the amount from Mrs. Grantham, payable to the J. A. Gurley Company, which he owned and managed, and upon receipt of said check delivered the note and bank stock to her. The check was deposited to the credit of' J. A. Gurley Company, and checked out for company purposes, and not for a cashier’s check, payable to E. T. Foster. J. A. Gurley, as vice-president of J. A. Gurley Company, notified E. T. Foster of the collection by letter, stating therein, “as soon as we g'et a return on her cheek, will forward cashier’s check to you.” After the expiration of a month, failing to receive a remittance, E. T. Foster made written request of appellant to forward cashier’s check, to which he received the following íeply.

“J. A. Gurley Company
“Investment Bankers
“Little Bock, Ark., 3-1-21.
“Mr. E. T. Foster,
“Dear sir:
“I have your letter of February 17th and have carefully noted contents of same. I am going to tell it to you just as it is. I received bank stock just as they were sent from Memphis by registered mail, delivered same and bank check for collection. Now in the meantime my company issued stock, and it was up to me to take the majority of the stock or lose control of my company, and in doing so I drew my bank balance below the $800 mark, and it was continued below. I have about $5,000 in collections that are past due and have been'expecting to get at least a sufficient amount of this to remit to you, but have so far failed. I am responsible for the rule not to allow any officer of our company to borrow any money from the company, consequently I have not asked them to advance it to me.
“Now, Mr. Foster, I am attaching a 10 per cent, note to $3,000 worth of my stock and am leaving the time open. I would like to have you make it six months, if entirely satisfactory to you. If you will give me the time you prefer, I will mail you a- check for the interest. It has not and is not my intention to misuse you in this matter, and if the above arrangement is not entirely satisfactory I want you to notify me at once, and will make a sacrifice somewhere and raise the money for you.
“With best personal regards, I remain,
“Yours truly,
“J. A. Gurley.”

Foster returned tlie 10 per cent, note and stock immediately, stating that he could not use them, and again requested appellant to forward cashier’s check for $800. Foster was unable to get any further response or to collect the account from appellant. The company subsequently went into the hands of a receiver.

At the conclusion of the testimony, appellant requested the court to direct a verdict of not guilty, and now insists that the court committed reversible error, in not doing so, for two alleged reasons. First, because there is a variance between the indictment and the proof. Second, because there is no evidence in the record showing any criminal intent on the part of appellant in his transaction with reference to the money referred to in the indictment.

The indictment, charged appellant with embezzling $800, gold, silver and paper money, of the value of $800, the property of E. T. Foster. The proof shows that the company which he owned and managed collected $800, in the form a check for E. T. Foster from Mrs. Anna Grantham, received credit therefor in the bank with which the company did business, and expended same, contrary to instructions, for the private use and benefit of said company. The transaction, in substance, amounted to the same thing as if appellant had drawn the money out on the check and deposited it in the bank to his company’s credit, thereby converting it to the use of his company, contrary to instructions. It is common knowledge that banks deal in money only when giving credit to their depositors. “The giving of credit is practically and legally the same as paying the money to the depositor and then receiving the money again on deposit. The intent of the parties must govern, and presenting a check on the bank with a pass book in which the receiving teller notes the amount of the check is sufficient indication of intent to deposit and to receive as cash.” Morse on Banks, and Banking, § 569. The rule quoted from Morse wa,s adopted by this court in the case of Skarda v. State, 118 Ark. 176. In that case Joe Skarda, cashier of The Bluff City Bank, was indicted for receiving on deposit from Joe Janet fifty-five dollars, gold, silver, and paper money, knowing at the time that the hank was insolvent. The proof showed that Joe Janet presented a check to the bank for $70, receiving a credit for $55. and the balance in cash. The court treated the credit as cash money, and held that there was no variance between the indictment and the proof. The rule thus announced is not in conflict with the rule in Wilborn v. State, 60 Ark. 14, and the reiteration thereof in Starchman v. State, 62 Ark. 538; Marshall v. State, 71 Ark. 418; and Silvie v. State, 117 Ark. 108, but is in harmony with them. The cases last cited enunciate the doctrine that the State must prove the character of money alleged to avoid a variance between the indictment and the proof, and the Skarda case, the doctrine that the State must prove what amounts in fact to a transaction in money of the character alleged.

According to appellant’s interpretation of the testimony, there is nothing to show a felonious intent on his part because he made no concealment of the amount in his hands belonging to E. T. Poster. We are unable to adopt appellant’s construction of the testimony, but, if his construction is correct, it is not the law that some degree of concealment must be shown in order to establish a felonious intent, where the property has been wrongfully converted or appropriated. The case of Fleener v. State, 58 Ark. 98, cited by appellant in support of Ms contention, that the concealment of the fund was necessary to establish a felonious intent on his part, is not in point. In that case there had been no misappropriation of the property. Upon this point the instant case is ruled by Russell v. State, 112 Ark. 282, in which it was said that “one guilty of embezzlement cannot claim immunity because he did not attempt to conceal the evidence of his crime.” Where there has been a wrongful conversion of a fund charged, a jury may infer a criminal intent from the act itself, and proof of the concealment of the fund is unnecessary.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Wilson v. Chisholm.
    Opinion delivered March 5, 1923.
    1. Taxation — right to redeem prom tax sale. — Ove going into possession of, and claiming title to, land in good faith under a donation certificate may redeem it from a tax foreclosure sale under the overdue tax act of March 12, 1881, as against anyone other than the true owner.
    2. Taxation — presumption of redemption prom tax sale. — Where one who went into possession in good faith under a void donation certificate in 1882 made the necessary improvements and procured a deed two years later, and he and his successors in title have paid the taxes up to the present time and have held actual, peaceful and uninterrupted possession, it will be presumed that such donee or his successors in title redeemed the land from the overdue tax sale made in 1883.
    Appeal from Union Chancery Court, J. Y. Stevens, Chancellor;

    affirmed.

      Joe Joiner, for appellants.
    TM-s case comes clearly within the law announced heretofore by this court. 66 Ark. 48. The court also in Wallace, v. Hill, 135 Ark. 353, recognized the principle that a purchaser of State lands during the period of redemption acquires nothing. See also C. & M. Dig., § 6695. This has become a rule of property in this State, 95 Ark. 23.

      Marsh & Marlin, for appellee.
    It will be presumed that one remaining in possession and paying taxes after an overdue tax forfeiture had redeemed, within the time allowed by law for redemption from the overdue tax sale. 135 Arlr. 353; 147 Ark. 247. The same principle will protect one who entered, as Owen did in this case, under a donation certificate. Either the persons whose titles were forfeited under the collector’s sale or the donee under the tax deed could have redeemed from the overdue tax sale. Sections 11 and 13 of the “overdue tax act, provided for redemption by the “owner.” The word “owner” in tax redemption statutes is uniformly given a highly remedial and liberal construction. 39 Ark. 580; 42 Ark. 215; 59 Ark. 147; 74 Ark. 572; 74 Ark. 343. The right to redeem is remedial, and statutes conferring that right must be liberally construed as to the class of persons to whom the right is extended. 66 Ark. 141; 52 Ark. 132; 96 N. W. 902; 64 W. Va.. 673; 3 Words & Phrases, 2d Series, 845, defining “owner”. See also 49 Ore. 419. Payment of taxes under a void donation deed gives one a right to redeem. 74 Ark. 572; 75 Ark. 308; 76 Ark. 551.

      Joe Joiner, for appellants, in reply.
    The facts are entirely different from the facts in Wallace v. Hill, 135 Ark. 353. There can be no presump tion of redemption here. There can be no isuoh presumption in favor of any one, except the real owner, and in this case there is nothing to show who the real owner was. 139 Ark. 333. One who redeems land from a tax sale, when he has no interest, right' or title, acquires no title. 87 Ark. 360. See also 80 Ark. 43; 99 Ark. 324.
   Humphreys, J.

Appellee, J. Chisholm, instituted suit in the Union Chancery Court against appellant to cancel a State deed to T. E. Wilson for the following described real estate in said county: N. W. ¼, sec. 33, tp. 19 S. R. 18 W., and to quiet and confirm the title to said real estate in him as against said appellants. In the bill filed appellee deraigned his title to said land through mesne conveyances from the State of Arkansas, the origin of his alleged title being a certificate of donation of date August 19, 1882, and deed issued thereon of date March 21, 1884, which were based upon an alleged forfeiture of said land to the State of Arkansas, for failing to pay the taxes, due and assessed for the years 1869 and 1870. It was also alleged that appellee, and those through whom he claimed, had been in the. actual possession of said land, making improvements thereon continuously since August 19, 1882, and had paid the taxes each and every year from and including the year 1885, the year following the date of the donation deed. Appellants interposed the defense in an answer and cross-petition that the land in question was included in an overdue tax proceeding instituted on July 15, 1882, in the chancery court of Union County; that in said suit the alleged forfeiture was declared by the court to be void and of no effect., and that said land* be sold for taxes, due and unpaid, for the years 1869 and 1870; that, pursuant to said order of sale, the land was sold on the 15th day of June, 1883, and that thereafter the sale was duly confirmed by the court; that the donation certificate relied upon by appellee was issued by the State after the institution of said suit, and that the donation deed executed in pursuance thereto was delivered prior to the expiration of the period of redemption allowed in the overdue tax act of March 12, 1881, under which the overdue tax suit aforesaid was instituted ; that the lands were sold and certified to the State in the overdue tax suit, and on December 20, 1919, the State issued a patent to appellant, T. E. Wilson, for-said land, based upon the overdue tax proceeding; that on December 22, 1921, said patent was recorded; that subsequent thereto T. E. Wilson conveyed said land to appellant, A. J. Marsh. Appellants prayed for a dismissal of appellee’s bill and possession of the land.

A demurrer was filed to the answer and cross-petition, which was sustained by the court, and, upon failure of appellants to plead further, the decree was rendered canceling the State deed to T. E. Wilson and quieting and confirming the title in appellee as against appellants. From that decree an appeal has been duly prosecuted to this court.

The facts as gleaned from the -pleadings are as follows : The land in question was certified to the State under a void forfeiture of 1869 and 1870. On July 15, 1882, a suit was filed in the chancery court of Union County under the overdue tax act. of 1881, in which this land was included. On August 19,1882, the State issued a certificate of donation for said land to James M. Owen. James M. Owen took immediate possession thereof, and made the necessary improvements to procure the donation deed which lie obtained, on March 21, 1884. During the time of his occupancy it was adjudged in the overdue tax suit that the tax forfeiture to the. State upon which the donation deed was based was void and of no effect. The land was thereupon ordered sold for the taxes of 1869 and 1870, and on June 15, 1883, was sold under the overdue tax decree to the State, which sale was confirmed by the court. In 1885 after the issuance of the donation deed to James M. Owen the land was assessed to James M. Owen, and he and his successors in title paid the taxes each and every year on said land after and including’ the taxes for the year 1885, and held the actual, peaceful, and uninterrupted possession thereof down to the present time. On December 20, 1919, the State issued patent for said land to T. E. Wilson, based upon the overdue tax proceeding. The record fails to show that James M. Owen or his successors in title ever redeemed the land from the overdue tax foreclosure.

The only question presented by this appeal is whether the presumption will be indulged that the land was redeemed from the overdue tax foreclosure for the taxes of 1869 and 1870 by James M. Owen or his successors in title. Appellants take the position that James M. Owen and his successors in title had ho right to redeem the land because they acquired no interest therein under the donation certificate and the donation deed made pursuant thereto. The case of St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48, is cited in support of their contention that they acquired no interest whatever in said land under said certificate and deed.' That case does hold that the State by purchase at such sale acquired no title which the State Land Commissioner had power to convey until after the redemption period expired; and that during the pendency of the overdue tax suit the Commissioner of State Lands had no authority to issue a donation certificate and deed based upon a forfeiture of land for the nonpayment of taxes; and also that after acquired titles had no application to conveyances made by the State. It is true that James M. Owen and his successors in title acquired no interest in the land as against the true owner under the donation certificate, but it served the purpose of showing that he went into possession of the land in good faith, and not as a squatter or mere trespasser. His possession and claim of title in good faith constituted such an interest in the land as gave Mm a right to redeem the land from the sale in the overdue tax foreclosure against any one other than the true owner. It was held in the cases of Woodward v. Campbell, 39 Ark. 580, and Sanders v. Hill, 42 Ark. 215, and reaffirmed in the case of Hodges v. Harkleroad, 74 Ark. 343, “that almost any right either in law or equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on land, amounts to such an ownership as will entitle the party holding it to redeem.” The facts in this case bring it well within the' rule of a presumptive redemption from an overdue tax forfeiture announced in the cases of Wallace v. Hill, 135 Ark. 353, and Lloyd v. Thornton, 147 Ark. 247. Appellants insist that the rule in those cases relates to real owners only, and that a redemption will not be presumed in favor of any other than absolute owners. We cannot agree with them in this contention. Those cases had in mind redemption laws when they used the word ‘ ‘ owner, ’ ’ and used it as a generic term, embracing even a possessory right. The trial court was correct in indulging a presumption that James M. Owen or his successors in title redeemed the land from the overdue tax foreclosure before appellant, T. E. Wilson, procured a patent to said land from the State.

The decree is therefore affirmed.


author: McCulloch, C. J.

text:
    Chastain v. Arkansas Bank & Trust Company.
    Opinion delivered February 12, 1923.
    1. Homestead — right to acquire. — There can be no such thing- as a fraudulent acquisition of a homestead, for the law permits it regardless of the rights of creditors.
    2. Homestead — actual occupancy. — Actual occupancy in good faith is essential to the impressment of the homestead character; a mere intent to occupy as a homestead in the future is not sufficient.
    3. Homestead — good faith of occupancy. — -Good faith of occupancy may be inquired into to determine whether the occupancy was for the purpose of establishing a home.
    4. Homestead — occupancy-—burden -of proof. — The burden of proof is on one claiming a homestead to show such occupancy as is sufficient to establish a homestead.
    5. Homestead — use for other purposes. — The fact that the property is being partly used for other than residence purposes is insufficient to destroy the homestead right.
    6. Homestead — good faith of occupancy. — Where partners in business, who owned a store building having numerous rooms on second floor but not adapted for a residence, being heavily in debt, made division of it, one taking the north half and the other the ■south, -and each claimed to have establishéd a residence in the upstairs rooms, but the circumstances showed that their occupancy was temporary for the purpose of evading process of creditors and not in good faith to establish homesteads, it was not error to deny them exemption.
    7. Appeal and error — objection to jurisdiction not raised below. — Where the only, thing done below to raise the question of jurisdiction of the chancery court was a motion to dissolve an attachment, the question of jurisdiction -cannot be first urged on appeal.
    Appeal from Jackson Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      M. E. Vinson, for appellants.
    1. The chancery court has no jurisdiction. Allegations as to -debts owing by the defendants to plaintiffs did not confer jurisdiction, nor allegations showing their marriage and claim of the property as a homestead. Partition of the property by the defendants so that it might be claimed as a homestead was not a sufficient allegation showing fraud and that the partition deeds were fraudulent conveyances. As to homesteads there are no creditors, and a creditor cannot complain of a voluntary conveyance thereof by a debtor. 96 Ark. 579; 103 Ark. 145. Conveyance of a homestead is never fraudulent as to creditors. 75 Ark. 205; Id. 591; 109 Ark. 493; 33 Ark. 762; Id. 454; 44 Ark. 180; 43 Ark. 429; 52 Ark. 101; 99 Ark. 45. The lack of jurisdiction was raised in the lower court by the motion to discharge the attachments, by the several controverting affidavits filed by the defendant, and the motions to stay the proceedings; but, aside from that, the objection to jurisdiction may be raised on appeal for the first time. 98 Ark. 595.
    2. Even if the court had jurisdiction, the attachment would not lie in this case. C. & M. Digest, § 554.
    3. There is no conclusive proof that the property involved was ever partnership property. 37 L. R. A. 895, and cases cited.
    Mere use by a partnership of real estate raises no presumption that it is partnership property. 81 Ark. 68.
    4. Almost any kind of an estate will support the homestead claim. Lands held by tenants in common may be partitioned, and homestead set aside out of it. 63 Ark. 289, 299; 70 Ark. 129; 42 Ark. 504, 514; 35 Ark. 49; 39 Ark. 301-4-5; 54 Ark. 9; 99 Ark. 45 ei seq.; Ill Ark. 15. Tenancy by curtesy will support the claim. 66 Ark. 3i82. Homestead may be claimed in lands owned jointly or as tenants by entirety. 83 Ark. 196. See also 70 Ark. 317; 123 Ark. 607; 56 Ark. 589; 74 Ark. 593 et seq.; ■134 Ark. 521, 525, and cases cited; 146 Ark. 51. ■
    5. If partnership property, the partners had the right to partition it and establish homesteads thereon. The purchase by a partner of partnership property is not per se fraudulent. 60 Ark. 18. See also 103 Ark. 105; 54 Ark. 449 et seq.; 91 Ark. 324, 327; 114 Ark. 14; Id. 384.

      Stayton & Stayton and Boyce & Mack, for appellees.
    1. The pleadings in which a debtor asserts a homestead right must set forth facts establishing the right, and not a mere general 'allegation that the right exists. And evidence must be introduced to establish the allegations or the claim will fail. 21 Cyc. 635; 34 Ark. 55; 78 Ark. 479; 76 Ark. 575; 69 Ark. 596; 57 Ark. 179’.
    2. It is not material in whose name the title to partnership property stands, whether in the name of one of the partners or all of them, or whether, on the face of the deed, they appear as tenants in common or whether it was conveyed to them expressly as partners. It is the fact that property was bought with partnership money, and that it is used in the partnership business, that impresses on the property the character of partnership real estate. 20 B. C. L. 857; 80 Am. Dec. 450, 451; 56 Ark. 167; 93 Ark. 61; 28 Ark. 259; 67 Am. Dec. 527, 538; 37 L. B. A. (N. S.) 889, at pp. 909, 910; 27 L. B. A. 449, note beginning at p. 550.
    3. Partnership realty is not subject to partition until after the payment of partnership debts. 20 B. C. L. 755; Id. 870; 118 A. S. B. 568-572; 6iS Am. Dec. 604, and note, p. 606; 22 Am. & Eng. Encyc. of Law, 99. Transfers of partnership assets by an insolvent firm which operate to hinder and delay creditors in the collection of their claims are held invalid in most courts. 30 Cyc. 543. And agreements between partners converting firm property into separate property, etc., are, in effect, conveyances of such property, and subject to the rule pertaining to fraudulent conveyances. 22 Am. & Eng. Encyc. of Law, 2d. ed., p. 109. Sales, interchanges and adjustments of partnership property between the partners are clearly alienations within the statute against fraudulent conveyances. Bigelow on Fraudu: lent Conveyances, 136. See also 48 Am. St. Bep. 596; 63 Id. 524; 1 Id. 589; 17 Id. 865; 20 Am. Bep. 762; 60 Am. St. Bep. 677.
    4. Partnership property is not subject to homestead or other exemptions, nor is a widow entitled to dower therein. 65 Ark. 550; 46 Ark. 43; 39 Am. St. Bep. 58; 28 L, R. A. 89, and note on p. 105; 76 111. 109; 21 Cyc. 506; 48 Ark. 557; 66 Ark. 251; 19 C. J. 473.
    5. The chancery court had jurisdiction. C. & M. Digest, § 494 ; 33 Ark. 550; 38 Ark. 397; 20 R. C. L. 1043; 2 Rowley on Partnership, par. 820; 6 C. J. 205; Pomeroy’s Eq. Jur., 4th ed., §§ 112, 171; Id. vol. 2, § 968; 67 Ark. 330, 332; 81 Ark. 7i8; C. & M. Digest, § 4880; 140 Ark. 558.
    6. The property involved here is not of a nature or of such character as could be impressed with the homestead right, so as to place it beyond the reach of creditors. 31 Ark. 468; 134 Ark. 525; 14 Fed. Cas. 1048, 1049; 13 R. C. L. 594.
   McCulloch, C. J.

Appellants, T. B. Chastain and C. H. Chastain, were copartners in the operation of a retail merchandise business at Newport, Arkansas, and in the year 1914 they purchased a lot with a two-story brick building thereon for occupancy in the operation of their business. The lot in question is 50 x 150 feet in size, and the building is 50 x 90 feet, covering the full width of the lot. There is only one room on the ground floor, and the second floor is divided into numerous rooms. After the purchase of the building, appellants continued to occupy it as a place of business.

Appellants were both single men, and roomed elsewhere than in the building, but about two years before the present litigation began the proof shows that they established a dining-room in one of the upstairs rooms of this building.

Appellants increased their business to a considerable extent, and extended it to farming operations, and in the year 1920 became largely in debt, and finally became insolvent.

In May, 1921, appellants made a division of the pronerty in question by one taking the north half of the building and the other taking the south half, and they executed conveyances to. each other to carry out this division. Each of them had married a short time before this division., and it is claimed that each of them established his residence in the upstairs of this building. Within a few weeks thereafter the appellees instituted separate actions in the chancery court of Jackson County against appellants, charging that the property was purchased with partnership funds and for partnership purposes, and that the partition conveyances executed between them was for fraudulent purposes to prevent creditors from collecting their debts. Each of the appellees sued out a writ of attachment, which was levied on the property in question.

Appellants filed answers, denying the charges of fraud, and claiming the respective parts of the property which had been allotted to each in the division as a homestead.

The proof of the marriage of appellants shortly before the commencement of these actions and their occupancy of the property in controversy as a homestead is very meagre, but the case was tried by all the parties upon the theory that appellants had become married men, and that there had been, to some extent, occupancy of the rooms in the second floor.

We fail to discover any direct proof as to the present value of the building, but it appears from the proof that the price paid for it by appellants in the year 1914 was $16,000, and that it has been carried in the list of assets at the value of $25,000.

The chancery court refused to allow the claims of homestead, and rendered decrees in favor of appellees, sustaining the attachments and declaring liens on the building.

The cases instituted by each of the plaintiffs were tried on the same testimony, and have been consolidated here for convenience, as they involve the same issue and the same proof.

It is undoubtedly true, as shown by the evidence, that the property in controversy was purchased with partnership funds and was used, until divided, for partnership purposes.

Pretermitting the discussion of other questions and conceding that, after division of the real estate purchased by copartners for partnership purposes and before the acquisition of specific liens by creditors, the property may, by the individual partners, be impressed with the character of a homestead so that it may be lawfully claimed as such (Richardson v. Adler, 46 Ark. 43), we go to the question whether or not there is evidence sufficient to show that this property was actually occupied in good faith as a home so as to impress it with the character of a homestead.'

There can be no such thing as the fraudulent acquisition of a homestead, for the law permits it, regardless of the rights of creditors. Ferguson v. Little Rock Trust Co., 99 Ark. 45. It is quite another thing, however, to say that a given tract or lot of real estate must be occupied in good faith as a home before it becomes impressed with the character of a homestead under the law. This court has steadily adhered to the rule that actual occupancy in good faith is essential to the impressment of the homestead character. A mere intention to occupy as a homestead in the future is not sufficient. Williams v. Dorris, 31 Ark. 466; Patrick v. Baxter, 42 Ark. 175; Tillar v. Bass, 57 Ark. 179; Gill v. Gill, 69 Ark. 596; Gibbs v. Adams, 76 Ark. 575; Gebhart v. Merchant, 84 Ark. 359.

The good faith of the occupancy may be inquired into for the purpose, not of determining whether the occupant is entitled to impress the property as a homestead, but of determining whether the occupancy was to actually establish a home. Gibbs v. Adams, supra; Kulbeth v. Drew County Timber Co., 125 Ark. 291.

The facts of the case must therefore be examined in the light of these decisions for the purpose of determining whether they are sufficient to show that the property in controversy was actually occupied in good faith as a home by appellants for the purpose of impressing it with the homestead character. The burden, of proof is on them to show that there was such occupancy as was sufficient to establish the homestead. Pace v. Robbins, 67 Ark. 252; Gibbs v. Adams, supra.

The controlling factor in the case is that the property is essentially unadapted for residence purposes. It is true that this court has held that the fact of property being partly used for other than residence purposes is not sufficient,to destroy the homestead right (Berry v. Meir, 70 Ark. 129; Earl v. Earl, 145 Ark. 559), but in each of those cases it was clear that the property was used as a homestead. In the present case we' must consider the character of the property for the purpose of determining whether it was, in fact, occupied in good faith as a homestead, or whether the occupancy was merely colorable and not for the purpose of actually acquiring a homestead, but for the purpose of preventing the creditors from seizing it at that time. Gibbs v. Adams, supra.

The building was, as before stated, a two-story one, adapted solely for business purposes and not as a residence. It was, moreover, a single building, and in its present condition is not susceptible of being divided. Of course, the lot could be divided in ownership, but the building itself was not susceptible of division for purposes of occupation as a place of residence. The facts and circumstances tend to show unmistakably that the occupancy by appellants of their respective halves of the building was merely temporary for the purpose of evading processes of creditors for the collection of their debts, and not in g-oocl faith for the purpose of establishing homesteads. The court was correct therefore in denying the exemptions claimed by appellants.

It is also insisted that the chancery court was without jurisdiction of the causes of action set forth in the complaints of appellees, but there was no objection made below to the jurisdiction of the court, and no motion to transfer to the law court, which should have been done if it was determined that there was an adequate remedy at law. The only thing done below which had any appearance of raising the question of jurisdiction was a motion to dissolve the attachment, and this was insufficient to raise the question of jurisdiction of the court to hear and determine the rights of the parties under the allegations of the complaints. It is too late to raise the question now for the first time.

The decree in each ease is therefore affirmed.


author: Smith, J.

text:
    Hollingsworth v. Leachville Special School District.
    Opinion delivered February 26, 1923.
    1. Contracts — term “architect” defined. — Where, in a building contract, the term “architect” was expressly defined as referring to a designated architect with his partner as associate, and the contract makes “the architect” the final arbiter between the contractor and the school district which was having the building erected, either partner was authorized to pass on the work, and the contractor could not dispute the authority of either partner to act.
    2. Contracts — substantial performance — damages.—In a building contract, a substantial compliance by the contractor is all that is required, he being charged, where there is such compliance, with the difference in value between the work as done and as contracted to be done, or the replacement of defective work where this can be done without great expense or material • injury to the structure as a whole.
    3. Contracts — evidence.—Evidence held to show necessity of tearing down and removing defective work in a school building and rebuilding in accordance with original plans.
    4. Contracts — building contract — liquidated damages. — Where a certain sum per day was named in a building contract as liquidated damages for delay in completing the building after a named date, and the contractor threw up the job, and it was completed by another contractor, and on a cost plus basis, the original contractor was not liable for such liquidated damages during the period the other contractor was engaged in completing the work.
    5. Contracts — breach of building contract — damages.—Where a contractor failed to complete his contract, and it was necessary to employ another contractor to tear down part of the building and rebuild it, a fee paid to the architect in supervising such work as a necessary expense was properly chargeable to the original contractor.
    6. Contracts — breach of building contract — damages.—Where a contractor failed to complete his contract, and it was necessary to employ another contractor to tear down part of the building and rebuild it, the expense of employing a watchman while such work was being done, not being provided for in the original contract, could not be charged against the defaulting contractor.
    7. Contracts — building contract — liquidated damages. — Where a certain sum per day was named in a building contract as liquidated damages for delay in completing the building after a named date, and the contractor threw up the job, and it was subsequently let to another contractor on a different basis, the defaulting contractor was liable for such liquidated damages from the time the contractor unlawfully refused to complete the work until the district took over the work.
    Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor;
    modified and affirmed.

      L. C. Going, for appellant Hollingsworth.
    The school district contracted with Mitchell Selligman us architect alone, not with Selligman & Edelsvard. See contract of March 20,1919. Article 2 thereof recites: “It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the said architect (meaning Selligman), and that his decision as to the construction and meaning of the drawings and specifications shall be final.” That bound both parties. 88 Ark. 213; 112 Ark. 83. There has been a .substantial compliance with the contract, and that entitled HollingiswOrth to his pay. 97 Ark. 278; 64 Ark. 34; 105 Ark. 353; 122 Ark. 308; 131 Ark. 481.

      Edward B. Klewer, for appellant Maryland Casualty Company; Ashley Cockrill, of counsel.
    1. There was a substantial compliance with the contract. 97 Ark. 278, 133 S. W. 1032. The architect, Selligman, was of the opinion that there had been a substantial performance of the contract. His decision cannot be questioned, except for fraud, or gross mistake, necessarily implying bad faith or failure to exercise an honest judgment. 48 Abk. 522, 3 S. W. 639.
    2. There was no certificate by the architect of such refusal, neglect or failure on the part of the contractor as to justify the owner in termiiiating the employment of the contractor, and taking over and completing the building, Mitchell Selligman being the architect authorized by the contract to make such certificate. Such certificates are conditions precedent to the right of the contractor to furnish labor and material, or the right to terminate the employment of the contractor; and sucia a provision in a building contract is in the nature of a for-. feiture which should be strictly construed, it being incumbent on the owner to show a strict compliance with the contract, or a valid excuse fob noncompliance. 77 Ark. 305, 90 S. W. 1000; 142 Ark. 539, 219 S. W. 328; 100 Ark. 565, 568; 87 Conn. 41, 86 Atl. 755; 127 Fed. 671, 62 C. C. A. 397; 80 Conn. 134, 67 Atl. 369,13 L. R. A. (N. S.) 448; 56 Minn. 410, 57 N. W. 943. Even if Edelsvard was an “architect” within the meaning of the contract, a joint certificate by both was necessary before the owner would be justified in terminating the contractor’s employment. 30 Ind. App. 342, 65 N. E. 1061; 173 111. 179, 50 N. E. 716; 165 Cal. 497, 133 Rac. 280, Ann. Cases, 1916-C, 44; 193 Mo. App. 132, 182 S. W. 143. See also 144 N. Y. 691, 39 N. E. 394; 157 N. Y. Supp. 782; 21 Ga. App. 758, 95 S. E. 113.
    3. If Edelsvard, associate architect, was authorized by the contract to give such certificate, the purported certificate given by him was insufficient in law to comply with the contract, article 5. 157 N. Y. Supp. 782; 70 N. J. L. 4, 56 Atl. 304; 68 N. J. L. 627, 54 Atl. 815; 104 Fed. 930; 144 N. Y. 691, 39 N. E. 394: 193 Mo. App. 132, 182 S. W. 143; 95 S. E. 113; 105 Atl. 467.
    4. The three days ’ notice prescribed by article 5 of the contract to be given to the contractor, by the owner after tlie ¡making of suoli certificate by tlie architect was not given to the contractor. 193 Mo. App. 150 ; 213 S. W. 151; 165 Cal. 497; 213 S. W. 151.
    5. The decision of the architect as to compliance was final, and could be impeached only by clear and convincing proof of fraud,, or mistake so gross as to imply bad faith or the exercise of dishonest judgment, and the evidence does not justify such finding. 70 111. App. 273; 84 111. 225; 158 111. 432; 90 N. Y. Supp. 115, 44 Misc., 555; 165 Pa. St. 394, 30 Atl. 988; 37 Ark. 145; 38 Ark. 419; 92 Ark. 509, 122 S. W. 649; 112 Ark. 83, 164 S. W. 1137; 88 Ark. 213, 114 S. W. 242; 83 Ark. 136, 103 S. W. 620; 79 Ark. 506, 96 S. W. 70; 68 Ark. 185, 56 S. W. 1068; 48 Ark. 522, 3 S. W. 639.
    6. As to liquidated damages for delay in completion, there was no notice of default, and the surety was therefore relieved of its obligation to pay such damages.
    7. The school district waived strict compliance with the. terms of the contract requiring completion within five months of its' execution. 99 Ark. 340, 138 S. W. 467; 104 Ark. 9; 103 Ark. 484,145 S. W. 234; Wait, Engineering & Architectural Jurisprudence, § 325; 9 N. Y. Supp. 538; 121 111. 571; 120 N. Y. 236; 1 N. Y. Sunn. 500; 81 N. J. Eq. 286, 86 Atl. 958; 20 L. R. A. (N. S.) 350, notes; 2 L. R. A. 1916-E, 1180, notes.
    8. The burden was on cross-complainant to legally prove its damages, and there is no legal proof of any damage sustained by it. 44 Ark. 439; 153 111. App: 43; 10 Ore. 440.
    9. The provision of the contract with respect to the certificate of the architect, that he has audited the cost of completion, should be strictly eonstruéd.

      R. A. Nelson, for appellee.
    1. It being a question of fact as to whether or not there was a substantial performance of the contract by the contractor, the trial court’s finding that there wa* not a substantial performance will not be reversed, if supported by the evidence, 148 Ark. 296; 129 Ark. 583; 130 Ark. 178; 6 Cyc. 54, 57, 58. 97 Ark. 282; 79 Ark. 115; 102 Ark. 53.
    2. Propositions 2, 3 and 4 urged by the casualty company go only to the sufficiency of the notice to comply served upon tlie contractor, and of the architect's certificates, to warrant the owner in taking over the building, under article 3 of the construction contract, upon default of the contractor. These alleged defenses were not pleaded in the trial court and cannot be raised here.' 37 Ark. 542; 91 Ark. 30; 129 Ark. 280.
    If these matters were conditions precedent, and therefore defenses to the appellee’s action against the contractor and his surety, they were material defenses, and should have been pleaded in the lower court. C. & M. Digest, § 1231; 85 Ark. 567; 128 Ark. 240.
    3. As to proposition 5, it is not correctly stated in the form submitted to the trial court; but court’s finding that Sellig’man’s conduct was such as to amount to bad faith was in accordance with the proof.
    4. As to liquidated damages and appellant’s argument thereon, reference is had to the surety company’s bond, viz: “Provided, that any alterations which may b.e made in the terms of the contract or in the work to be done under it, or the giving by the owner of any extension of time for the completion of the contract, or any forbearance on the part of the owner, shall not in any way release the principal and surety, or either of them, * * * from liability herein assumed, notice to the surety of any such alterations, extensions or forbearances being hereby waived.” 4 E. C. L., 3547; 29 Cyc. 1117; 32 Cyc. 106,107; 92 Ark. 519.
    5. The above waiver carries with it appellant’s proposition 7. Moreover there is no plea or proof that the school district ever received any consideration for the so-called waiver of completion on time. 4 E. C. L. 3719; 9 C. J. 794.
    6. The method adopted in the audit or certificate of the architect was that agreed upon" by the parties under article 5 of the contract, and the amount of the certificate was never questioned for fraud or mistake in the trial court, and all parties are hound by it. 6 Oye. 40, 42; 48 Ark. 522; 68 Ark. 187; 79 Ark. 513; 83 Ark. 402; 88 Ark. 224; 91 Ark. 421.
   Smith, J.

On March 11, 1920, J. E. Hollingsworth, a building contractor doing business as J. E. Hollingsworth & Co., sued the Leachville Special School District, alleging that on or about May 20, 1919, he and the said district entered into a written contract, whereby he agreed to erect and complete a certain brick school building in the town of Leachville, according to the plans and specifications made a part of the complaint, for the sum of $34,000. That he began the construction of the building under his contract, and had expended thereon the sum of $20,178.80, and that he had been paid by the school district, on the certificate of the architect, the sum of $12,800, leaving a balance due him of $7,378.80. That on or about December 10, 1919, the school district forcibly took possession of said partly constructed building, and refused and declined to permit him to complete same, and that such action on the part of the school district was unlawful and wrongful, in that he was constructing the building in accordance with the plans and specifications.

On March 27, 1920, the school district filed its answer and cross-complaint. It admitted the execution of the contract sued on, but denied that the building was constructed according to the plans and specifications, and denied that it had, without right, forbidden plaintiff to continue the work, and averred that its reason for not permitting plaintiff to continue was that he had refused to construct and complete the building in accordance with the plans and specifications.

In its cross-complaint the school district set up the contract, and alleged the execution of a bond for its faithful performance by the Maryland Casualty Company as surety. The plaintiff, the surety and Mitchell Selligmail, tlie architect, were made parties to the suit. It was alleged that, the architect had conspired with the plaintiff to obtain the contract for the plaintiff, and that the architect had fraudulently permitted the plaintiff to make substitutions of defective material, and had fraudulently approved defective work by the contractor.

Answers were filed by the cross-defendants, denying all the allegations of the cross-complaint, and alleging that the work of the contractor was in accordance with the plans and specifications, and had been accepted and approved by the architect, whose decision, according to the terms of the building contract, was final with respect to the work, and averred failure to give notice of default.

The final decree dismissed the complaint, and also the cross-complaint in so far as the architect was concerned, but gave the district a judgment against Hollingsworth and his surety, and this appeal is from that decree.

The record is very voluminous, consisting of over a thousand pages, and the briefs, which are correspondingly large, discuss at length the conflicting testimony of the numerous witnesses. We shall not undertake to review all this testimony, although we have considered it, and have reached the conclusion that the findings of fact upon which the decree of the court below was based were not clearly against the preponderance of the testimony except as to two items, which we think were improperly charged against the contractor.

For the reversal of the judgment it is insisted:

1. That there was a substantial performance of the contract on the part'of the contractor up to the time of his discharge; and this is the principal question in the case.

2. That there was no certificate by the architect of a failure on Ihe part of the contractor to comply with the contract, it being’ insisted that Selligman was the architect authorized by the contract to make that certificate.

3. That, if the associate architect, who made the certificate upon which the directors acted in discharging the contractor, was authorized to so certify, he should have clone so in connection with Selligman, and not individually as he did do.

4. That proper notice, as prescribed by the contract, was not given by the district to the contractor of his discharge.

5. That the decision of the architect as to compliance with the contract was final, and could be impeached only by proof of fraud or mistake so gross as to imply bad faith and the exercise of dishonest judgment, and the evidence does not justify that finding.

6. That there was no notice of default, and the surety was, on that account, relieved of its obligation to pay liquidated damages for delay.

7. That the district waived strict compliance-with the terms of the contract requiring the completion of the building within five months.

8 and 9. That the district did not properly prove the damages allowed it.

The propositions stated are substantially questions of fact, as the principles of law which control their decision are well settled and are not in dispute between the parties, and we will not undertake a separate discussion of each of these propositions.

There are provisions in the building contract which make the architect the final arbiter between the contractor and the district, and it becomes important, therefore, to determine who the architect was, as Hollingsworth took the position, when the first disagreement arose, that Edelsvard was not the architect, and Hollingsworth demanded that Selligman approve the findings and directions of Edelsvard before he would as.sent thereto. On that question we quote from the contract as follows : ‘ ‘ This agreement, made this 20th day of March, 1919, by and between the Leachville Special School District, party of the first part, hereinafter called the owner, and Mitchell Selligman, party of the second part, hereinafter called the architect, with G. A. Edelsvarcl, associate, witnesseth:” The same instrument defines the terms, ‘ ‘ owner, ” “ architect, ’ ’ and ‘ ‘ contractor, ’ ’ the definition of “architect” being “the term ‘architect’ refers to Mitchell Selligman or associate.”

Selligman and Edelsvard were partners, as Selligman & Edelsvard, at the time the district contracted with them as architects, although the negotiations leading to their employment were conducted by Selligman, and that member of the firm acted for the firm in the award of the contract to Hollingsworth, the plaintiff in this suit. However, “the plans and specifications were prepared by Edelsvard.

The court below was of the opinion that Edelsvard, as well as Selligman, was the “architect,” as that term was used in tlie contract, and we concur in that finding.

The contract specified what supervision the architect should give the building and what his duties should be in that connection, and we think it was contemplated by the parties that either Selligman or Edelsvard might perform those duties. The contractor was therefore in error in disputing Edelsvard’s authority as architect.

Pour bids were received by the district for the construction of the building as originally advertised. The lowest bid was $34,737, and was made by TI. E. Monk; the next lowest bid was $34,887, and this bid was made by the plaintiff Hollingsworth. The district had only $34,000 to spend for the building, and did not accept any of these bids. Selligman undertook to revise these plans by reducing the cost of the building by $887, and after doing so Hollingsworth’s bid was accepted.

' The alterations thus made were indicated on the plans as “Addenda A,” and much stress is laid on these alterations by the district as tending to show collusion between Selligman and Hollingsworth. Monk testified that the alterations made by Selligman did not reduce the building cost only $887, but that the amount of the reduction was $2,134, and he testified that, if he had been given an opportunity to revise his bid after the alterations had been made, he conld, and would, have reduced his own bid by that amount, whereas Hollingsworth reduced his bicl only to. the extent of $887.

There was testimony on the part of the district that Selligman refused to give Monk an opportunity to revise his bid on the ground that Monk probably could not make the required bond, the intimation being, of course, that Monk was not a responsible bidder. The insistence of the district, in this connection, is that Selligman and Monk were unfriendly, and that the relations between Selligman and Hollingsworth were unduly friendly. Selligman denied that this was true, and he denied that the alterations in the plans which he made warranted a difference of more than the $887 reduction necessary to bring Hollingsworth’s bid within the money the district could pay, and he testified that he was not asked by the directors of the district to figure with any other bidder on any reduction of the amount bid.

The first issue between Selligman and Edelsvard came over the allowance of an estimate which Hollingsworth asked the district to pay. Edelsvard testified that he told Selligman the sum demanded was in excess of the amount then payable under the contract, and Selligman admitted this was true, but insisted that the estimate be approved notwithstanding that fact, but Edelsvard refuse to do so. Selligman denied this. An issue also arose between' Selligman and Edelsvard over the approval of the work covered by this estimate. Edelsvard went to Leachville and condemned -a lot of the work, and, among other things, ordered brick walls torn down. Hollingsworth declined to obey Edelsvard’s direction, and insisted that his work was not defective, and had been approved 'by Selligman. In this connection there were introduced certain telegrams and correspondence, which, it is strongly insisted, show Selligman’s entire good faith. Edelsvard wired Selligman that Hollingsworth had disputed his authority and claimed to have his (Selligman’s) approval of the work. Selligman answered by wire affirming Edelsvard’s authority, and denying that he had given a blanket approval of Hollingsworth’s work. The issue between Edelsvard and Hollingsworth remained unsettled, and Selligman himself went to Leachville. Upon Selligman’s return home he wrote a letter to the school directors, in which he expressed the opinion that Hollingsworth was correct in his contention. In the same letter Selligman insisted, first, that the alleged defective work was not so defective that it could not be remedied, and, in his testimony, explained the remedy he would have applied. He also stated in the letter that such defects as did exist resulted from defects in the plans, and not from faulty materials or work. Edelsvard insisted to the contrary, and the directors accepted his view as correct. There was a meeting at which all parties in interest were present or were represented, and the directors announced their approval of Edelsvard’s position, and called upon the representative of the surety company to comply with Edelsvard’s directions and complete the building after Hollingsworth had declined to do so.

It was insisted at that meeting, as Hollingsworth had all along insisted, that the trouble was with the plans, and there is much testimony in the record which supports that contention. In fact, if the case was disposed of on the testimony of the witnesses who qualified as experts, and testified as such, it must be confessed that the clear preponderance of the testimony shows that the plans were defective, and the troubles complained of by Edelsvard were attributable to the defect in the plans.

The testimony of these experts appears to be overcome, however, by the undisputed fact that the defective work was torn away and the building was completed according to the plans which the experts had testified were defective, and there is no disagreement that the district has a satisfactory building.

The principal defect complained of in the plans was that the weight of the building had not been properly distributed over the foundation, and the explanation is offered that it became possible to erect a good building under the plans used only because the foundation had properly settled. Of this we shall have more to say.

It is conceded that there were numerous departures from the plans. It is said, however; that most of these were unimportant and immaterial, and resulted chiefly from the inability of Hollingsworth to obtain the articles called for in the specifications, resulting from the congestion of railroad traffic existing at the time, and the inability to have builder’s orders promptly filled. It is also insisted that such variations as might be deemed material did not impair the value of the building, and were authorized by Selligman in good faith.

It is undisputed that many defects existed at the time Selligman and Edelsvard disagreed, and, as has been said, the chief issue of fact was the cause of these defects — whether defective plans, or defective work— and it is undisputed that one of the brick walls fell, and the remaining walls were torn down. One of the orders which Edelsvard had given, and which Hollingsworth refused to obey, was to tear down these walls. Hollingsworth accounts for the falling of the wall by saying that the building had been left unoccupied from October 20, 1919, to January 5 thereafter; but the court did not accept this explanation, and neither do we. The walls were shown to have been out of plumb, some of the witnesses placing the variation in this respect as high as four inches; and the testimony shows an insufficient quantity of cement was used, and that the mortar was not properly mixed. A number of witnesses testified that brick could be, and were, pulled out of the walls like pulling books out of a book-case. The other defect in the walls was that the walls had cracked. There was no dispute about that fact, although there was the sharpest conflict as to the extent and cause and probable effect of these cracks.

It was insisted by Selligman that these cracks were not as serious as Edelsvard claimed, and could have been closed by certain excavations of tbe foundation; and the witnesses who testified in Hollingsworth’s behalf as experts expressed the same opinion. One of these witnesses, in response to a hypothetical question which assumed as existing the conditions which Edelsvard and the other witnesses for the district had testified did exist, admitted that, under the facts assumed, the -building should have been torn -down, and nothing else could have been done to make the building safe.

We do not concur in the view that there was any trouble with the foundation. The building was located on “confined” sand, and the testimony is all to the effect that only solid rock makes a better foundation — the coarser the sand the better the foundation.

Building operations entirely ceased on October 20, 1919, this being’ the date when the contractor and the representative of the surety company definitely refused to take down and reconstruct the building; and building operations were not resumed until January 5, thereafter. During this time there may have been, and probably was, some additional settling of the concrete foundation on which the walls were erected; but we do not think this settling made it possible to build a good building, whereas before it had been impossible to do, and such was not the theory of the experts, their chief objection to the plans being that the weight of the building had not been properly distributed over the foundation.

Upon the first submission of the cause the court prepared a written opinion in which he announced certain conclusions which he liad reached. Among other findings of the court was one to the effect that Hollingsworth and his surety did not have the right to rely on the decisions of Selligman, for two reasons. The first was that Selligman had given up the work before the time for the more important decisions; and the second reason was that his inattention to the work amounted to bad faith, though there was no satisfactory proof of fraud. Selligman’s contract with the district provided for personal attention on the job at least once every two weeks, but, despite repeated calls when the board of directors were complaining of defective work, he made only three visits in five months.

The court found as a matter of law that ‘ ‘ a substantial compliance by the contractor is all that is required under the law, he being charged (where there is a substantial compliance) with the difference in value between the work as done and as contracted to be done, or the replacement of defective work where this can be done, or the replacement of defective work where this can be done without great expense or material injury to the structure as a whole.”

We approve both the finding of fact stated and this declaration of law.

The court, after making certain general findings of fact, propounded the following question: “The question for decision therefore is: 'Could the defective masonry have been replaced with reasonable expense without tearing down the whole structure? If it could, then the district is entitled to charge only what such cost would have been, together with difference in value of brick, steel, lugs, caps, bases, etc., furnished and those contracted for. On the other hand, if the inferior masonry was all over the building so that the structure was unsafe (and the maximum of safety is required for school buildings where hundreds of little children are housed) and it was necessary to rebuild in order to be certain of durability, then the district was justified in dismantling the house ás a whole and in the rebuilding to use materials conforming strictly to the contract.”

The court then directed’that additional testimony be taken for the purpose of enabling him to determine the questions stated, and what damages should be awarded the district if it was found the structure had to be torn down; and the additional testimony was 'taken, and the court thereafter rendered a final decree assessing- as damages the cost of tearing down and removing defective work and rebuilding in accordance with the original plans.

We will not set this testimony out in detail. There is much conflict in it, and much of it cannot be reconciled. As we have said, the preponderance of the expert testimony supports the contention of Hollingsworth, but the decided preponderance of the practical testimony — that of the men who tore down the old work and replaced it— supports the finding of the court below. We are largely controlled by the fact that a satisfactory building has been erected according to the plans and specifications which the expert witnesses condemned.

After Hollingsworth was discharged, Monk was employed to complete the building, and was paid for this, service on the basis of cost plus ten per cent. He testified that in tearing down and removing the condemned parts of the building he discovered that much material of a cheaper kind than that called for by the specifications had gone into the building, and he estimated this difference amounted to $2,336. Complaint is made of the commission paid Monk; but it does not appear that the work could have been contracted on more advantageous terms at that time. Monk testified that a wall fell before he took the job, and he did not know what conditions he would find.

Edelsvard furnished the district a certificate that the total cost to the district for the construction of the building was $64,400.59, and that there were credits against this amount of $34,722.63, leaving abalance above the original contract price of $28,677.96, and that the building remained uncompleted for 400 days after October 20,1919, the date of the expiration of the five months’limit allowed for the construction of the building, and that the liquidated damages for that period at $25 per day, the sum specified in the contract, amounted to $10,000.

The original contract gave the architect the right to make such a certificate against the contractor; but we think no binding effect can be given to the certificate of Edelsvard for the reason that Monk’s work was not done under the contract. Edelsvard’s certificate and his testimony in regard thereto are competent as evidence of the facts recited, hut they are not conclusive, and we do not approve the figures made hy him in their entirety for the reasons hereinafter stated.

Objection is made to the fee paid Edelsvard. This fee was not paid Edelsvard under the old contract, but was his compensation for services in connection with the tearing down and rebuilding of the sehoolhouse, and the testimony showed the sum paid him was a necessary expense under the circumstances.

It is said certain errors in addition appear in Edelsvard’s figures amounting to $363.30, and no explanation of what appears to be an erroneous addition is made, and this error must, of course, be corrected.

It is insisted that Monk used a more expensive brick than Hollingsworth was required to use, and an additional cost of $572 was incurred on that account. The testimony does not appear, however, to support the charge that a .more expensive brick was used than the original contract called for. Certain other disputed items may be disposed of similarly.

The court allowed an item of $525 covering the expense of a watchman during the reconstruction of the building. Such an expense does not appear to have been provided for in the original contract, and we think no authority was shown for making this charge against the contractor and his surety.

The court refused to allow the liquidated damages certified by Edelsvard, but did allow liquidated damages from the time Hollingsworth refused to proceed until the directors commenced work on the building. In other words, the court took no account of the period of time in excess of the five months amounting to 400 days, but did charge Hollingsworth for the time covered by his refusal to proceed before the district took over the work. We think this was not unfair to Hollingsworth, and the surety company was advised of the issue between the parties and refused to complete the building, as it had the right to do, and it is chargeable therefore with liability for the liquidated damages assessed as a part of its obligation as a surety.

The decree will be modified by reducing it to the extent of the error in addition, and the charge for the services of the watchman, and, as thus modified, will be affirmed.


text:
    Boas v. Missouri Pacific Railroad Company.
    Opinion delivered March 5, 1923.
    1. Limitation of actions — injunction against obstructing creek. — A suit to enjoin a railroad from obstructing- and diverting the natural flow of a creek by filling in a trestle spanning it and digging a ditch too .small to accommodate the flow during heavy -rains, thus causing- water to back up over plaintiff’s lands, is barred after three years from completion of the embankment,' the nuisance as well as the injuries being- original and permanent.
    2. Limitation of actions — injunction against discharge of water.' — A suit to enjoin a railroad company from discharging water from day to day from its boilers and roundhouse into an insufficient ditch dug by it, resulting in the water being 'backed upon plaintiff’s land and 'becoming stagnant, is not barred within three years from completion of the ditch, the injury being caused by a continuing nuisance.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Feeder, Chancellor;
    reversed in part.

      W. A. Cunningham, for appellants.
    The right of action is not barred. Where the obstruction is not necessarily an injury, or where the party damaged cannot tell the extent of the injury, or where the obstruction may be remedied, the injury is successive, and not original. 57 Ark. 398; 52 Ark. 243; 95 Ark. 302.

      Thos. B. Pryor and Ponder & Gibson, for appellee.
    The action is barred. The trestle was filled in in 1902, at which time the ditch was cut draining the creek down the west side of the railroad. The injury was permanent, and the statute ran from that date. 107 Ark. 169; 62 Ark. 360; 86 Ark. 406; 92 Ark. 465; 93 Ark. 46; 35 Ark. 662; 39 Ark. 463; 56 Ark. 613; Wood on Limitations, 3d ed., § 180.
   Humphreys, J.

Appellants, twenty-eight in number, commenced this suit in the Eastern District of the Lawrence Chancery Court, to enjoin appellee from obstructing the natural flow of Turkey Creek until it provides complete drainage to carry off the water, and from discharging water from their boilers and roundhouse into the ditch cut on the west side of its tracks to turn Turkey Creek, which water backs up to and on the lands of appellant in such way as to stand and become stagnant.

Appellee filed an answer admitting that it obstructed the natural flow of Turkey Creek by damming the 'Channel or filling in the draw where the creek crossed the roadbed east of the lands of appellants, and turning the water into a ditch on the west side of its track, but alleging that the right of action, if any, was barred by the three years statute of limitation; and denying that it is discharging water from its boilers and roundhouse into the ditch which backs up to and on the lands of appellants so as to stand and become stagnant. Other defenses were introduced, but the proof was largely directed to the defenses set out above, so we deem it unnecessary to set out the others.

The court found that the cause of action was barred by the three years’ statute of limitation, and dismissed the bill of appellants for want of equity.

Prom the decree dismissing the bill an appeal has been prosecuted to this court.

Appellants were owners of certain lands in the town of Hoxie immediately west and across appellee’s railroad track from its terminal and switch yard. Originally Turkey Creek flowed down from the north part of said property and passed under the main line of the railroad and thence in a southerly direction along the east side of Hie roadbed for a considerable distance before crossing back to the west side thereof. In 1902 appellee filled in the gap of its roadbed where' the creek first crossed it, so as to .obstruct the flow of water, and, in order to carry it off, dug a ditch in a southerly direction along the west side of the roadbed to connect with Turkey Creek where it crossed the roadbed a second time. According to the weight of the evidence, the ditch was not large enough to carry off the water, and during the heavy rains the lands of appellants were inundated and greatly damaged with back-water.

The nuisance complained of consisted in filling in the trestle which theretofore spanned Turkey Creek, so as to divert the water from the channel of the creek, and by digging a ditch too small to accommodate the flow of water during- heavy rains. The decided weight of the testimony shows that, before the trestle was filled and the ditch constructed, the water had not backed up over any of appellants’ lands, but immediately thereafter and since (hat time has backed up and seriously affected said lands. The nuisance as well as the injuries were original and permanent, and the rights of action to enjoin the nuisance or sue for damages on account of permanent injuries accrued when the construction was completed in 3902, and suits should have been instituted within three years after that time. This court s'aid in the case of Turner v. Overton, 86 Ark. 406: “When the nuisance is of- a permanent character and its construction and continuance are necessarily an injury, the damage is original and may be at once fully compensated, and the statute of limitations begins to run upon the construction of the nuisance.” The facts in that case are quite similar to the facts in the instant case, and the rule announced therein is applicable and controlling here. Appellants are clearly barred from maintaining this suit to abate the original and permanent nuisance. The case, however, is different with reference to water being continually emptied into the ditch from the boilers and roundhouse. The weight of the testimony is to the effeet that the water discharged from the roundhouse either passed through a sump into the ditch, or directly into it, to such an extent that it -backs up two blocks in dry weather and stands in a stagnant pool near or on said lands. The act of appellee in discharging this water into the ditch from day to day is distinctively a continuing nuisance and injury. It is in no sense a part of the original nuisance and injuries. The action to abate it was not barred when this suit was instituted. The court erred in dismissing this, the second cause of appellants’ action.

The decree is affirmed as to the first cause of -action, but reversed and remanded as to the second, with directions to enjoin appellee from emptying water out of its boilers and roundhouse, directly or indirectly, into the ditch or the bed of Turkey Creek north of the ditch, without preparing facilities for carrying the water off.


text:
    Wisconsin & Arkansas Lumber Company v. Brady.
    Opinion delivered March 5, 1923.
    1. Trial — -assumption of undisputed fact. — An instruction which assumed a fact about which there was no dispute was not erroneous.
    2. Railroads — negligence—jury question. — In actions for personal injuries and for damages to an automobile struck by cars Daeked over a highway without warning, plaintiff’s view being obstructed, held that defendant’s negligence was for the jury.
    3. Railroads — discovered peril. — Where ^defendant’s brakeman on a car being backed over a public crossing testified that he discovered plaintiffs when they were about 40 or 50 feet from the crossing and the front end of the flat-ear nearest the crossing was 30 feeet from it, and the engineer testified that it was possible to stop the train within a distance of 10 or 12 feet at the rate it was moving, the issue of discovered peril was for the jury.
    4. Railroads — duty of travelers at crossing. — While it is necessary for a traveler to look -and listen for trains as he approaches .a public crossing, he is not required to stop for that purpose, unless necessary to do so in the exercise of ordinary care for his safety.
    5. Railroads — contributory negligence. — Where plaintiffs were approaching a crossing slowly when injured, and there was a dispute as to whether a fence and hedge-row entirely obscured the train, which was backing over the crossing, the question of contributory negligence was for the jury.
    6. Negligence op wipe imputable, to husband. — Where a husband was driving in his automobile driven by his wife under his control, her negligence in driving the car when it was struck by a train, if any, was imputable to him, and should have been considered in determining the liability for damage to the car.
    Appeal from Hot Spring Circuit Court; W. H. Evans, Judge;
    reversed in part.

      Henry Berger and Mehaffy, Donham $ Mehaffy, for appellants.

      D. D. Glover, for appellees.
   Humphreys, J.

Appellee, Mrs. Hosea Brady, as mother and next of tin to Louis Lindel Brady, recovered damages in Hot Springs Circuit Court against appellants, in the sum of $500, for injuries received by her child; and appellee, Hosea Brady, recovered damages against said appellants in the sum of $50 for injuries to his automobile, on account of alleged negligence of appellants through their servants. The- particular acts of alleged negligence was the backing of a train of flat-cars across a public road, upon which appellees were traveling in an automobile, without warning them of its approach, and which train was obstructed from their view by an office, other buildings, a fence and hedgerow, until within ten or twelve feet of the track, which train collided with the automobile and caused the injuries complained of,

Appellants filed an answer denying the allegation of negligence, arid pleading, by way of further defense, that the injuries were the direct result of negligence of appellees in driving the automobile onto and against the flat-cars, without taking any care or precaution to look or listen, or, if necessary in • the exercise of ordinary care, to stop for that purpose.

An appeal from tlie judgments lias been duly prosecuted to- this court, and the correctness of the judgments is assailed by appellants because the court gave certain instructions alleged to be erroneous, and refused to give others alleged to be correct, and erroneously modified others before giving them. The facts as reflected by the record.are in substance as follows: two railroad tracks of appellant, thirty feet apart, running north and south, crossed the public road at right angles where the alleged injuries occurred. Buildings between these tracks were on both sides of the public road. The office, fence and hedgerow were on the south side, and the mill and lumber yard were on the north side. Appellees were, going toward the east in the direction of Malvern, in a Ford oar owned by Hosea Brady. Mrs. Hosea Brady was driving, and her husband was sitting beside her holding the baby, then twenty-two months old. According to their evidence, they were driving at the rate of six or eight miles an hour, and, on account of the obstructions on the -south side of the road, did not see or hear the train until within ten or twelve feet of the track, at which time the train rapidly approached the crossing and -collided with their car before they could stop it; that, as soon as they discovered the train, Mrs. Brady put on the brake .and turned off the gas, and Mr. Brady turned off the engine; that the train was running much faster then than they had been traveling, and when they cut all the power off the automobile it reduced the 'speed enough to allow the front end bf the flat-car to get by them -some six feet before the collision occurred; that Mrs. Brady was accustomed to driving the car, and that she was looking to the front, as usual, when approaching the crossing.

According to the testimony of appellants, the flatcar was being backed across the road into the mill yard to place it for loading; that the train was moving about four to six miles an hour; that appellees were discovered forty or fifty feet from the crossing as they approached it; that the front end of the flat-car was then about thirty feet from the crossing; that immediately upon discovering them the engineer shut the throttle, plugged the air valve and threw back the reverse lever; that, considering the speed of the train and other conditions, it could have been stopped within a distance of ten or twelve feet; that the reason the train reached the crossing first was because it was nearer than the automobile to the crossing; that the tracks did not cross a public highway, but a road hat was traveled by the people a good deal.

The undisputed testimony showed that the train was backed across the road crossing, which had been generally traveled by the people for many years, without giving any warning whatever of its approach, and without having any one on the front end of the flat-car to watch and give signals.

At the request of appellants, the jury was permitted to go to the scene and approach the crossing in automobiles as an engine was backing a flat-car up the track toward the road crossing, so that it might observe conditions at first hand. -

Appellants contend the instructions were erroneous because they did not take into account that the place where the injury occurred was private property and not a public road, thereby requiring appellants to exercise the same care to keep from injuring trespassers that they would have to exercise to keep from injuring travelers at a public road crossing. It is true, in instructing the jury, the court assumed that the place where the injury occurred was a public road crossing. All the witnesses testified it was such a crossing, unless it can be said that John A. Millen testified to the contrary. He did say the road was not a public highway, but at the time must have had in mind some technical conception of a public highway, for he admitted that the road had been generally traveled by the public for many years. We think the court’s assumption warranted, for there was no real dispute in the testimony upon the point.

Appellants also contend that the court erred in submitting the issue of negligence on their part. It is argued that there is no evidence upon which to base the issue. We think the evidence warranted the submission of that issue to the jury. The testimony tended to show that appellants backed two freight cars rapidly toward a public crossing without warning of any kind to travelers who might be approaching. The error, if any,' was against appellees, for, according to the undisputed testimony, the bell was not rung or the whistle blown in the manner required by the statute. Aside from the fact that the whistle was not blown or the bell rung, the evidence tended to show that, as the train approached the public road crossing, it was obscured from the view of travelers until they were within ten or twelve feet of the crossing, and, notwithstanding such facts, that no one was stationed at the crossing or on the front end of the flat-car to notify the public or to signal the engineer or fireman. An inference might well have been drawn by the jury from these facts that appellants’ train was operated negligently on that occasion. Appellants go further and assert the court assumed in several instructions that they were negligent in the operation of their train. After a careful reading of the instructions referred to, we do not think them susceptible of that construction.

Appellants also contend that the court erred in giving instruction No. 9, based upon the doctrine of discovered peril, for the alleged reason that there was no evidence to support the instruction. John A. Millen, acting brakeman, testified that the train was moving at the rate of four miles an hour; that he discovered appellees when they were forty or fifty feet from the road crossing, and immediately notified the engineer of their approach; that the front end of the flat-car nearest the road crossing was then thirty feet from it. C. J. Page, the engineer, testified that it was possible to stop the train within a distance of ten or twelve feet, at the rate it was moving. The jury would have been justified from these statement^ in drawing an inference that the appellants discovered the peril to appellees in time to have stopped the train and avoided the injury. It was proper therefore to submit that issue to the jury.

Appellants also .contend that the court erred in refusing to direct a verdict in their favor as to both appellees, upon the theory that the undisputed testimony showed that the negligence of Mr. and Mrs. Brady was the sole and proximate cause of the injuries. It is insisted that Mr. and Mrs. Brady should have stopped to look and listen as they approached the crossing. While it is necessary for a traveler to look and listen for trains as he approaches a public crossing, he is not required to stop for that purpose unless necessary to do so in the exercise of ordinary care for his safety. We cannot say, as a matter of law, under the facts in this case, that it was the duty of appellees to have stopped their car in order to look and listen. The testimony is in dispute as to whether the fence and hedgerow entirely obscured the train in the direction from which it came. There is nothing in the testimony tending to show that they could not have heard the Whistle, if blown, or the bell, if rung, while riding along at a low rate of speed. The record does not reflect that the train was passing on schedule time. According to the testimony, appellees were approaching the crossing slowly and looking to the front. We think it was a question for the jury, under the facts, to say whether the injuries resulted wholly from the negligence of Mr. and Mrs. Brady, or wholly from the negligence of appellants, or from the concurring negligence of both.

Appellants also contend that the court erred in giving appellees’ requested instruction No. 1, which is as follows:

“You are instructed that if you find from the evidence in this case that the defendant company, in the operation of one of their trains, negligently damaged plaintiff’s car, without fault or negligence on his part, as alleged in his .complaint, it will be your duty and you are instructed to find for the plaintiff, Hosea Brady, in whatever sum you find from the evidence that his oar was damaged.”

This instruction was erroneous because it ignored the negligence of the wife as a defense to the action of Hosea Brady for the injury to the automobile. Hosea Brady owned the automobile, and was in no sense a guest of his wife, so he had control, along with his wife, over the movements of the car. The negligence of Mrs. Brady, if any, therefore was imputable to Hosea Brady, and should have been taken into account just as his own negligence, if any, in determining whether there was liability on the part of appellants, for damage to the ear. The defect in instruction No. 1 was not cured by other instructions given by the court. The only one tending to cure the defect was in conflict with the one given.

The judgment in favor of Mrs. Hosea Brady, as mother and next of kin of Louis Lindel Brady, is affirmed; and, on account of the error indicated, the judgment in favor of Hosea Brady is reversed, and his cause of action is remanded for a new trial.


text:
    Davis v. City Fuel Company.
    Opinion delivered March 12, 1923.
    1. Carriers — liability for freight charges. — Where materials were shipped by the sellers consigned to a government quartermaster under a contract between the sellers and the buyer whereby deliveries were to be made f. o. b. at point of shipment and consigned to the quartermaster, to whom the buyer had resold, and from whom the carrier failed to collect the charges, the buyer was not liable, either upon the theory that sellers were acting as his agent in making delivery or upon .the theory that the buyer was the consignee.
    2. Carriers — liability of consignee for freight charges.— Where goods are delivered by the carrier to the consignee upon condition that the latter will pay the freight charges, the law implies a promise upon his part from his acceptance of the goods.

      3. Carriers. — diversion of consignment — liability for freight CHARGES. — Where carloads of material were resold by the original consignee to a government quartermaster, and, with the . carrier’s consent, the cars were diverted to a subsequent buyer at another destination, who failed to pay the freight charges, the original consignee was not liable for the charges, the consignment being a single one from point of origin to the last named destination, the charges for which could not be split.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed.

      E. B. Kinsworthy and R. E. Wiley, for appellant.
    The consignor is liable for the freight charges; and this is true notwithstanding the provision in the shipping contract that “the owner or consignee shall pay the freight.” 10 Corpus Juris, 445; 21 N. J. L. 292; 47 Am. Dec. 162. The owner of goods for whose benefit and under whose direction they are shipped is liable for the freight. 6 Cye. 500; 97 Ark. 353; 10 Corpus Juris 447. See also 73 Pa. Superior Ct. 588; 93 S. W. 1080; 161 S. W. 954; 105 S. E. 623.

      McMillen & Scott, for appellee.
    The facts are on all-f'ours with the facts in Railroad CompaAiy v. Freed, 38 Ark. 614. Under the ruling in that case the camp quartermaster was the owner of the goods at all times they were in possession of the appellant, which ownership the appellant recognized by delivering the goods to him. On delivery to the carrier, title passes to the consignee. 112 Ark. 110; 106 Ark. 478. See also 255 Fed. 949; 166 S. W. 40; 10 C. J. 447; 2 Hutchinson on Carriers, 3d ed., % 808.
   McCulloch, C. J.

The Director General of Railroads instituted against City Fuel Company, in the circuit court of Pulaski County, two suits, which were consolidated and tried together, to recover freight charges on twenty-one carloads of material shipped during the year 1918 from various points in and outside of this State to Camp Pike. The material was purchased by the fuel company from vendors at the'several points of shipment, the terms of the purchases being f. o. b. at those points, and the fuel company resold the same to the quartermaster at Camp Pike. All of the carloads, save three, were shipped by the original vendors consigned to the quartermaster, to whom delivery was made by the carrier without collecting the freight charges. The bill of lading in each instance named the original vendor as consignor and the quartermaster as consignee. The three cars mentioned were consigned by the original vendors to the fuel company at Little Rock; the latter resold them while in transit, and the consignments were diverted to the quartermaster at Camp Pike.

The trial of the consolidated cases in the circuit court resulted in judgments against the fuel company, but the court granted new trials, and this is an appeal from the order, a stipulation being filed, in accordance with the statute, that “if the order be affirmed, judgment absolute shall be rendered against the appellant.” Crawford & Moses’ Digest, § 2129.

The contention of the plaintiff is that ‘ although ~the City Fuel Company was not named on the billing, either as consignor or consignee, it had sold the goods to the consignee named, and, being the owner of the goods, had caused them to be transported to Camp Pike, consigned to the quartermaster * * * for the purpose of making delivery of its goods to the consignee, it became liable for the transportation charges.”

The law on this subject, which is, in a large measure, controlling in the present case, was stated in St. Louis S. W. Ry. Co. v. Gramling, 97 Ark. 353, as follows:

“The owner of goods under whose direction they are shipped is liable for the freight. The consignee who actually receives the goods becomes responsible for the carriage charges on the ground that the goods are delivered to him upon the condition that he will pay such charges; and, from his acceptance of the goods, the .law implies a promise upon his part to pay such charges. But where the consignee is only the agent of the owner, and this fact is known to the carrier, such contract to pay the freight by the consignee will not be implied. * * * The carrier has the right to look to the consignor or owner of the goods for the payment of the freight, and he may waive his lien upon the goods by delivering them to the consignee and still hold the consignor liable upon the contract of shipment.”

In this statement of the law the court manifestly used the words “consignor or owner” interchangeably as meaning the same, unless the consignor is a different person from the owner and made the contract of shipment as agent for the owner, in which case the owner would be liable as an undisclosed principal.

The determination of this case turns, then, on the question whether, under the facts, the original vendors, as the consignors under the recitals of the bills of lading, acted for themselves or as agent of the fuel company. Under the contracts between the vendors and the fuel company the deliveries were to be made f. o. b. at point of shipment, consigned to the quartermaster at Camp Pike. The consignment was a part of the duty of the vendors in making delivery, and they were acting for themselves, not as agents for the fuel company. This is true, notwithstanding the fact that, under the contract of sale, the freight charges were to be paid by the purchaser at destination. The fuel company was not the undisclosed-consignor, for it did not make the consignment, either in its own name or through an agent. Nor was the fuel company the consignee, either in name or undisclosed. There is evidence to show that the quartermaster was to receive the goods and pay the freight, not as agent for the fuel company, but on his own behalf as purchaser and consignee.

All that has been said thus far relates to the charges on the carloads other than the three which were consigned to the fuel company at Little Rock and resold and diverted in transit. The question of liability or nonliability for the charges on those three carloads rests on other grounds. It falls squarely within the principles announced in St. Louis S. W. Ry. Co. v. Gramling, supra.

The fuel company was originally the consignee, and by acceptance of the goods at destination would, by implied contract, have become liable for the freight charges. But there was, with consent of the carrier, a diversion to another consignee at another destination, and the consignment thereby became, in effect, one from the original point of origin to the last-named destination. It was a single consignment, and liability for the entire .charges could not be split. The fuel company, or the last named consignee, is liable for all or none. The fuel company was consignee only during a part of the period of transit, ceasing to be such before the transportation service was complete. This does not make the fuel company liable for the charges for service.

The decision of the United States Circuit Court of Appeals for the Eighth Circuit in the case of Wallingford v. Bush, 255 Fed. 949, is directly in point and supports our conclusion in the instant case. The only difference between the two cases is that the consignment in the Wallingford case was under contract of sale to shipper’s own order with bill of lading attached to draft, and the purchaser paid the draft and received the bill of lading during transit and then resold the goods and assigned the bills of lading to his purchaser. The court decided that the first purchasers did not, by becoming the owners during a brief period during transit, render themselves liable for the freight charges. There is no difference in principle between the question of liability in that case and in the present case. Our conclusion also finds direct support in the decision of a Texas Court of Appeals in the case of St. Louis S. W. Ry. Co. v. Browne Grain Co., 166 S. W. 40.

The question of liability for freight charges, as between the quartermaster and the fuel company under this contract of sale, is not involved further than is necessary to determine whether or not the former received the consignment as agent of the latter, and, as before stated, there was sufficient evidence to show that there .was no agency.

The judgment is therefore affirmed, and judgment absolute will be rendered here against the plaintiff’s right to recover.

Smith, J., dissents.