text:
    Southern Express Company v. Couch.
    Opinion delivered March 19, 1923.
    1. Appeal and error — harmless error. — Undisputed testimony that the American Express Company was operated at the same place where another express company was doing business when a certain shipment was made, and that, nine months after the shipment, the American Express Company delivered the property to plaintiff without explanation as to how it came into possession of the property, is sufficient to establish’ that the American Express Company had succeeded to the business of the other company, so that defendants were not prejudiced by permitting a witness to testify to that effect.
    2. Appeal and error — harmless error. — An instruction that it was a carrier’s duty to transport a shipment as promptly as possible, and that a failure to do so would constitute negligence, • even if it imposed too high a degree of care upon the carrier, was harmless where the undisputed testimony established the carrier’s, negligence, as where a shipment which should have reached its destination in a few days was misplaced and not delivered until nine months ’ later.
    3. Carriers — damages in excess of value claimed. — Where a shipper in his claim filed with the carrier placed a reduced value upon the articles in order to procure an immediate settlement, he was not bound by such valuation in a suit by him to recover the true value of such articles.
    4. Carriers — penalty for delay — constitutionality of statute, —Crawford & Moses’ Dig., § 937, imposing upon an express company a penalty of $2 per day for delay after 20 days* notice in paying for damages to or loss of goods, is unconstitutional because the penalty fixed is exorbitant and unreasonable.
    Appeal from Columbia Circuit Court; G. W. Smith, Judge;
    affirmed.

      Henry Stevens, for appellant.
    Case should be reversed for error of court in allowing the station agent of the express company to testify that the American Express Company succeeded to the business of the 'Southern Railway Express Company. 2 Morawetz on Private Corporations, sec. 940. Vassar v. Ford, 37 Ark. 27. Peremptory instruction should have been given in favor of American Railway Express Company. Wiggins Ferry Go. v. Ohio & M. By. Go., 142 U. S. 396, 35 L. Ed. 1055; McAlester v. American Bailway Express Go., 103 S. E. 129; Austin v. Tecumseh National Bank, 35 L. R. A. 114. The judgment is excessive and not supported by the evidence. 1 Sutherland on Damages, 785; 9 Enoyc. of Evidence 958; 32 Ark. 346. The court erred in giving instruction 4. Goodell v. Bluff City Lbr. Go., 57 Ark. 203; St. Louis, I. M. é S. By. v. Beecher, 65 Ark. 12; St. Louis I. M. $ S. By. v. Thornn_ son-Hailey, 79 Ark. 12; Cornish v. Friedman, 94 Ark. 282. Erroneous instruction not cured b}^ a correct one on same subject. Hoyle v. Kavanauqh, 87 Ark. 364; Merchants’ Ins. Go. v. Adams, 88 Ark. 550. Conflicting instructions leave the jury without a correct guide and error in giving prejudicial St. L. I. M. & S. By. v. Hudson, 95 Ark. 506; Helena Hardwood Lbr. Go. v. Maywood, 99 Ark. 377; Hodge-Downey Const. Go. v. Carson, 100 Ark. 433; Hove v. Harper, 101 Ark. 37; K. G. S. By. v. Brooks, 84 Ark. 233.

      Joe Joiner, for appellee.
    Transcript does not contain all the evidence nor all the court’s instructions. Judgment against the American Railway Express Company should be affirmed. American B.a-ilway Express Go. V. Howninq (Va.), Ill S. E. 265. Neither is the judgment excessive.. On the cross-appeal the judgment should be reversed and appellee allowed the penalty for delay. Crawford & Moses ’ Digest, § 937.
    Two 'years’ statute applies. Sec. 6954, C. & M. Digest; 199 S. W. 707; 10 Mo. 781; 112 Me..234; 127 Fed. 23; 123 Ark. 266; 277 Fed. 433.

      Henry Stevens, in reply.
    Record is complete. Sec. 937, C. & M. Digest, provides a penalty and two-year statute applies. Western Union Tel. Go. v State, 82 Ark. 309. Black on Interpretation of Laws, p. 470. Court ruled correctly on demurrer.
   Humphreys, J.

This is the second appeal of this case to the Supreme Court. On the former appeal the judgment was reversed because the trial court submitted an issue of special damages to the jury. Upon remand of the cause the pleadings were amended to include the American Railway Express Company as a party defendant, alleging that it had taken over the Southern Express Company and assumed the latter’s liability, and, in addition to claiming damages for depreciation in the value of appellant’s goods for negligent delay in delivering them, claimed a penalty of $2,472, under sec. 937 of Crawford & Moses’ Digest, for not doing so. For a statement, in the main, of the facts in this case, reference is made to the opinion on former appeal, which is recorded at page 513, vol. 143 Ark. Reports. In addition to the statement found there it may be added that the testimony in the instant case was directed to the depreciation in the value of the trunk and its contents occasioned by a delay in delivering same. Appellee testified that at the time he expressed the trunk it contained a set of jeweler’s tools worth $200, wearing apparel worth $150, and a watch and stick-pin worth $160; that on November 9, 1918, the American Railway Express Company delivered the trunk and contents to him in a damaged condition; that when he received them the trunk was worth $10, the tools about $25, the wearing apparel $50, and the watch and stickpin worthless. On February 4, after the trunk was expressed, appellee filed a claim, verified by oath, with the Southern Express Company for $261.50, on account of the loss of the trunk and its contents. On cross-examination he was questioned concerning this claim and the value placed by him at that time on the various articles, to which he responded that he undervalued the articles in the claim, believing that by so doing the company would pay him immediately; that he was very anxious to get an immediate settlement, because he needed the money. It may also be added that J. K. Mooney testified in the instant case, over .the objection and exception of appellants, that the American Railway Express Company succeeded the Southern Express Company in business. The cause was submitted upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment in favor of appellee for $400.

Appellants contend for a reversal of the judgment on several grounds.

It is first insisted that the trial court erred in allowing J. K. Mooney to testify that the American Express Company succeeded to the business of the South-» ern Express Company. Learned counsel for appellant argues that tlie only way to have established this fact was by the introduction of the resolutions of the stockholders or directors of the respective companies, showing the consolidation of the two companies. We deem it unnecessary to pass upon this point, as the undisputed testimony in this case shows that the American Express Company was operating at the same place where the Southern Express Company was doing business when the shipment was made, and nine months after the shipment, delivered the trunk and its contents to appellee. The American Express Company made no explanation as tu ■how it came in possession of the trunk, and the reasonable inference is that it succeeded to the business and assumed the liabilities of the Southern Express Company. The testimony was sufficient to establish this fact without the evidence of J. K. Mooney. So no prejudice resulted to appellant, American Express Company, on account of the testimony given by Mooney.

It is next insisted that the court erred in giving instruction No. 4. The particular part of the instruction assailed by appellant as erroneous is as follows:

“It was defendant’s duty to transport the trunk in this case as promptly as possible, and a failure to do so by the defendant would constitute negligence, and if the plaintiff was damaged by such negligence, * *

It is urged that too high a degree of care was imposed by this instruction upon appellants; that the degree of care imposed upon them by the law was to deliver the shipment within a reasonable time, and that they could be held for damages only in case of an unreasonable delay in delivering. We deem it unnecessary to discuss the question raised, because the undisputed facts in the case show that the delay in delivery was unreasonable. The trunk was expressed from Magnolia, Arkansas, to Kansas City, Missouri. It should have reached its destination in a few days; but was misplaced in transit and was not delivered to appellee until nine months later. The delay in delivery was unreasonable, and the instruction given would not have prejudiced the rights of appellants in any way. In other words, the undisputed evidence conclusively establishes negligence in law upon the part of appellant.

The next and last insistence for reversal is that the judgment is excessive. It is true that the testimony of appellee conflicts with the claim filed by him, in so far as the value of the various articles is concerned, but he was not bound by the values fixed in the claim filed with appellants. He explained that he placed a reduced value in the claim upon the articles in order to procure an immediate settlement with appellants. His testimony was sufficient to support the verdict, if believed by the jury, and the weight to be attached to it was a question solely for them.

Appellee has prosecuted .a cross-appeal and asked that appellants be penalized $2 per day for failure to pay the*claim, under sec. 937 of Crawford & Moses’ Digest. The penalty statute referred to is unconstitutional because the penalty fixed is exorbitant and unreasonable. Beckler Produce Co. v. American Ry. Exp. Co., 156 Ark. 296.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Carpenter v. Phillips.
    Opinion delivered March 26, 1923.
    1. Brokers — contract—jury question — Whether a landowner contracted with a firm of brokers to sell his farm held under the evidence to be a question for the jury.
    2. Brokers — right to commission. — Where a real estate agent employed to sell land introduces a purchaser to .the owner, and through such introduction a sale is effected, the agent is entitled to his commission, though the sale is made by the owner.
    3. Appeal and error — instruction—necessity of specific objection. — In an action for a commission for selling land, an instruction that if plaintiffs procured a buyer by contract with defendant, or if they introduced the purchaser to him, and the sale was effected through their efforts, they were entitled to their commission, held not reversible error as being in conflict with other instructions or as being an erroneous declaration of law, in the absence of a specific objection.
    4. Brokers — telegrams as evidence. — In an action by -brokers for a commission for procuring a purchaser of land, a telegram and letter from the purchaser to plaintiffs, directing them to hold the farm, held admissible, in view of testimony tending to prove that plaintiffs were then acting as defendant’s agent.
    Appeal from Pulton Circuit Court; J. B. Baker, Judge;
    affirmed.

      C. E. Elmore and Oscar E. Ellis, for appellant.
    No evidence of any contract with, appellees to sell appellant’s farm, and there must be a contract to entitle broker to commission. Horton & Co. v. Beall, 116 Ark. 273; Murry v. Miller, 112 Ark. 227; Scptt v. Cleveland, 122 Ark. 229; Brannen v. Poole, 142 Ark. 48; Gammell v. Cox, 143 Ark. 72. Court erred in giving instructions la, 2a, 3a, 4a and 5a, and. also 3 and 5. Also erred in «allowing the introduction of letters, and telegrams from appellees to Thompson and from him to them, same being incompetent and self-serving declarations.

      J. C. Ashley and H. A. Northcutt, for appellees.
    Cases cited by appellant reviewed. Broker employed to sell is entitled to commission when. 53 Ark. 49; 76 Ark. 375. The jury was properly'instructed and the evidence is sufficient to sustain the verdict. 83 Ark. 202; 90 Ark. 301; 89 Ark. 185; 127 Ark. 429. Appellees were the procuring cause of the sale. 132 Ark. 378; 102 Ark. 200; 137 Ark. 23.
   Wood, J.

This action was instituted by the appellees against the appellant to recover the sum of $400 which the appellees alleged that appellant owed them for services rendered appellant in the sale of a certain farm in Pulton County, Arkansas. The appellees alleged that they were partners in the real estate business, and that they were employed by the appellant to sell his farm at the price of'$8,000; that they procured a purchaser for the farm, who purchased the same at that price, and that the appellant agreed to pay them for their services as commission five per cent, of the purchase price, which he had refused to do. The appellant denied all the material allegations of the complaint.

The testimony of Richard Stockard, one of the appellees, was to the effect that the appellees were partners in the real estate business. They were advertising their business in the Daily Oklahoman, a newspaper in Oklahoma. One Mr. Thompson saw their ad. and answered it, telling the appellees that he wished to purchase an improved farm in the Ozarks. Appellees wrote him in regard to a farm they had on Big Creek. Thompson came, and appellees took him to look at certain farms, but Thompson was not pleased with these, and he and the appellees started back to Ashflat, where the appellees resided and had their business office. On the way they stopped at the appellant’s. Appellant said to one of the appellees; “Who have you got with you?” and the reply was “A fellow by the name of Thompson from Castle, Oklahoma — a land buyer.” Appellant said, “Sell him my place.” One of the appellees told Thompson that the appellant wanted to sell his place, and told Thompson that the appellant had an ideal farm. One of the appellees took Thompson in and introduced him to appellant. They all went down to the barn, and appellant showed Thompson a crib full of corn, and Thompson said, “This is the kind of a place I want.” They went back and looked over the house, and Thompson stated that he was going home and tell his wife about the place, and was pretty sure she would take it, and that he would wire the appellees whether to hold the place for him or not. Thompson at that time said to appellant, “I want you to understand that I am dealing through these boys” (referring to appellees). In about three or four days appellees got a telegram from Thompson which read, “Hold Mac Carpenter farm. Letter of instructions will follow.” In about a week Thompson came back. Appellees had received a telegram to meet him and his wife: One of the appellees met him and his wife on the 9th of December and took them out 'to Ashflat, and on out to appellant’s the next morning, to look over appellant’s farm. Thompson said, while they were examining the farm, “This is the farm I want.” After examining the farm they went back to appellant’s house, and there appellant said to the appellees, “You can go on home now, and we will come down Monday or Tuesday, and I will settle up with you,” and of course appellees supposed that he would come and pay them their commission.

Thompson had told the appellees that he was going to take the farm. Appellant came in in about a week and said, “I have got the deed made, and the notes drawn up.” Thereupon one of the appellees said to him, “We are really entitled to ten per cent, on this trade, but we are going to settle with you for $400.” Appellant replied, “Well, that is what Boss Woods charged to sell this farm two years ago, 'but it seems like this deal was made mighty quick.” In a few days he came back again and said to appellees, “I have been studying this over, and all I am willing to pay you is $5 a day and car fare and expenses.” On cross-examination the witness was asked if appellant agreed to pay appellees five per cent, commission for selling the place, and witness answered, “He said, ‘Sell him my place. I would just as soon pay you boys a commission as anybody’.” Appellant knew that appellees were in the real estate business. Appellant’s place had not been listed with the appellees for sale, and they had no other contract for selling same than that made that night.

Phillips, the other appellee, in his testimony substantially corroborated the testimony of Stockard, and further testified that, after the negotiations were on and the place was sold, and while they were trying to settle with -the appellant as to their commission, he remarked that they had never sold the place, and said, “Thompson would not give $8,000 for the place,” and further stated in the same conversation, “If you can sell it for $8,000 I will give you the $400 right now.” Appellees told him that they considered that they had already sold it for that. It was the first time they were out at appellant’s with Thompson that appellant made the contract. He told appellees then, in the presence of Thompson, that he would just as soon pay them as anybody. But the testimony of the appellees further tends to show that, between the time they were first out at the appellant’s with Thompson, appellant had made inquiries of appellees as to whether they had heard anything from Thompson, and when appellees received the telegram from Thompson they called up the appellant and told him about it. They talked to appellant over the ’phone in regard to the deal. The testimony of appellees was also to the effect that five per cent, was a reasonable charge for their services; that it was the usual and customary commission where they sold land as they did this.

Mr. Thompson was introduced- as a witness by the appellant, and he testified, corroborating substantially the testimony of the appellees as to the circumstances under which he became acquainted with appellant. He stated that the appellees said that they did nót know that Carpenter wanted to sell; that if they had known, they would like to have sold it for him. They stated they didn’t have any contract on the farm. Witness bought the farm from Carpenter because it was the ideal farm he had been looking for. It was something over forty days after witness first met Carpenter before he' purchased the farm. Witness and his wife were staying at Carpenter’s, and while they were there Carpenter showed them his farm and other farms. Witness didn’t purchase the farm because of any recommendation or solicitation of the appellees or either of them. He denied that he stated, in the presence of Carpenter and the appellees, that night when he first met Carpenter, that he “was dealing through these boys,” meaning Dee Phillips and Richard Stockard. Witness made no such statement. Carpenter priced the farm to witness and stated the condition on which it could be bought. Neither of the appellees ever told witness the terms of the purchase or the price, or anything about it, and neither of them ever represented to witness that they had it for' sale. Witness, on cross-examination, stated the circumstances of the meeting with Carpenter about as it had been detailed by the appellees, and stated that he was introduced by Stockard to Carpenter as a prospective buyer of a farm. He had decided that night that he would take the farm, but he was buying it for his wife, and she had to see it. Before he came back he sent the telegram to the appellees in which he told them to hold the Mac Carpenter place, and wrote them a letter stating that he would be back some time the next week with his wife, and to be sure to see that “old Mac Carpenter holds the farm,” and wired the appellees to meet him. The appellees did meet witness at the train and went with him to the appellant’s. The deal for the farm was closed between the witness and Carpenter some weeks after that. The consideration of the purchase to Carpenter was $8,000.

The appellant testified, and, without setting out his testimony in detail, it suffices to say it was substantially the same as to the meeting of Thompson as detailed by the appellees and Thompson, that he was introduced to Thompson by Stockard, but closed the deal with Thompson himself. Appellant stated that when the appellees came back the second time with Thompson he decided that they were trying to work into the deal. So he took Stockard out and told him that he would not pay any commission, and wanted to tell him so before he went any further. He said to Stockard, “Mr. Thompson is here, and the place is for sale; he can look at it, and if he don’t want it he don’t have to take'it at any price.” Witness testified that he did not agree to pay the appellees five per-cent. He said to the appellees, when they were claiming that they had sold the place, “I would like to know what you got for it, and to know when you sold it and what you got for it, and how the payments -are arranged, before I pay you $400. I will pay you $400 if you will tell me what you got for it, what the terms are, 'and how the payments are arranged. They just stood there and looked at me.” Witness stated that he never authorized them to sell his farm, and that the night that he first met Thompson was the first time he ever knew that the appellees were in the real estate business. On cross-examination he said that he sold the farm himself, that the appellees had nothing to do with it. Witness acknowledged that he told the appellees at Ashflat that, if they had sold the place, and could tell witness the terms and conditions upon which they sold it and how the payments were arranged, he would give them $400. He denied having any conversation over the telephone with appellees about Thompson’s telegram and letter.

Another witness for the appellant testified that he heard a conversation between Thompson and Stockard about the appellees’ commission, in which Stockard said he wondered if Mac would be willing to pay them anything. Witness asked 'Stockard if there was any understanding about what they were to get and he said “No.” The telegram and letter referred to from Thompson to the appellees concerning the deal were introduced as evidence, over the objection of appellant.

The court, on its own motion, gave several instructions, which, in effect, told the jury that, before they were authorized to find for the appellees, they would have to find from a preponderance of the evidence that they had a contract with the appellant to pay them a commission for selling his farm, and that appellees secured the purchaser, who was willing and able to purchase the farm from the appellant upon the terms agreed upon between purchaser and appellant; that, although the purchaser came to Ashflat at the instance of the appellees, and afterwards purchased property from the appellant, this of itself should not be sufficient to authorize the appellees to recover a commission from the appellant, unless they had' a contract with the appellant by which they were to sell his farm, and, through their influence and effort, brought appellant in touch with the purchaser and thus caused the sale of the lands to be made. The court further instructed the jury that, if they found from the evidence that the appellees were in the real estate business and rendered service to the appellant in the sale of his farm, which he had accepted, appellees were entitled to recover a reasonable compensation for their services.

In its instruction No. 3 the court, in effect, told the jury that, if they found from a preponderance of the evidence that the appellees procured a buyer for appellant’s farm by contract or agreement with the appellant, or if they introduced the purchaser to the appellant and negotiations were begun and the sale of the property was effected through the efforts and influence of the appellees, they were entitled to their commission, although the owner sold the property himself. Only a general objection was saved to the instructions of the court. The jury returned a verdict in favor of the appellees for the sum of $375, and from a judgment rendered in their favor for such sum is this appeal.

The appellant contends that there is no evidence to prove that there was a contract 'between the appellees and appellant for the sale of the latter’s farm. The testimony concerning this is set forth in detail above, and we are convinced that the issue as to whether or not there was a contract by which the appellant engaged the appellees to sell his farm was one for the jury. There was a sharp conflict in the evidence, but it cannot be said that there was no substantial evidence to prove that appellant agreed to pay the appellees a commission for selling his farm, nor can it be said that there was no legal evidence to prove that the appellees procured a purchaser who was ready, willing and able to purchase on the terms prescribed by the appellant. The law is well settled that, where a real estate agent, employed to sell land, introduces a purchaser to the seller, and through such introduction a sale is effected, the agent is entitled to his commission, though the sale be made by the owner. Scott v. Patterson, 53 Ark. 49; Hunton v. Marshall, 76 Ark. 375; Warmack v. Perkins, 132 Ark. 378; Hodges v. Bayley, 102 Ark. 200.

The instructions of the court were in harmony with the law applicable to the facts of this record, and as announced in the above and many previous decisions of this court.

The language in instruction No. 3, to-wit, “ or if they introduced the purchaser” is inaccurate, but it is manifest, when this language is considered in connection with the other instructions which the court gave, that the court did not mean by the above language to tell the jury that a real estate broker who had no contract to sell land had earned his commission if he had only introduced the purchaser to the seller. Obviously, instead of the word “or” the court intended to use the word “and;” otherwise instruction No. 3 would be in conflict with several other instructions which the court gave. When the instructions are considered together, it clearly appears that the court did not intend to give conflicting instructions. Therefore if the appellant conceived that the language of the clause quoted, to which he now objects, was in conflict with other instructions, and was an erroneous declaration of law, he .should have specifically directed the attention of the court to the objectionable language. Had he done so, the court doubtless would have readily corrected the same to meet his objection. The inaccurate phraseology called for a specific objection.

Instruction No. 6, given by the court on its own motion, was in harmony with the law as announced by this court in Hodges v. Bayley, supra. Poston v. Hall, 97 Ark. 23; Branch v. Moore, 84 Ark. 464. See also Harris & White v. Stone, 137 Ark. 23-29.

The court did not err in allowing the telegram and letter from Thompson to the appellees to be introduced in evidence. Under the testimony tending to prove that the appellees at that time were acting as the agent of appellant as well as the agent of Thompson in bringing about the sale, the letter and telegram were competent testimony.

There is no error. Let the judgment be affirmed,


text:
    Morrow v. Merrick.
    Opinion delivered March 26, 1923.
    1. Appeal and error — conclusiveness op chancellor’s finding.— Where evidence is so conflicting- that the preponderance can not be determined, the chancellor’s findings will be adopted.
    2. Waters and watercourses — diversion of surface water. — A landowner may divert the flow of surface water in good faith for reclamation of his land if injury to adjoining land is not intended ; and where his land could not be reclaimed by reasonable care and expense otherwise than by means of ditches and levees, he may construct them, provided that by so doing he does not necessarily obstruct the natural flow of surface water to an adjoining property owner’s injury.
    3. Waters and watercourses — diversion of-surface water — injunction. — Where a person, by ditch, levee or other means, asserts his right continuously to cast surface waters in a body upon the lands of another to the latter’s irreparable and permanent injury, the party causing such injury is guilty of a private nuisance which the injured party may abate by injunction.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      J. Allen Eades, for appellant.
    Appellant had the right to improve his land by cutting -off surface waters from it, and he did nothing more. American Shovel & Tool Co. v. Anderson, 90 Ark. 235; McCoy v. Plum Bayou Levee Dist., 95 Ark. 349; Little Rock & Fort Smith Ry. Co. v. Chapman, 39 Ark. 476; Baker v. Allen, 66 Ark. 276.

      Edward Gordon, for appellees.
    Proof shows appellant wrongfully changed the natural flow of the water and caused it to flow over lands of appellees. Taylor v. Rudy, 99 Ark. 132; Holtsman v. Boiling Spring Bleachmg Co., 14 N. J. Equity, 335; Clay v. Middleburg Electric Co., 11 L. R. A. (N. S.) 693. See Wellborn v. Davies, 40 Ark. 83.
   Wood, J.

This action was brought by the appellees against the appellant. The appellees alleged in their complaint that they are the owners of certain lands which they described; that these lands are situated at the foot of Pigeon Roost Mountain and north of Point Remove Creek; that there is a branch or ravine into which the waters along the side of the said mountain drain and which flows on to and across the lands of defendant, adjoining plaintiffs’; that defendant is digging a ditch and building a levee at the foot of said hill on his land for the purpose of diverting and changing the natural flow of water and forcing the same to flow on to the lands of plaintiff, which will overflow about fifty acres of plaintiffs’ land, to plaintiffs’ irreparable injury and damage. The complaint concludes with a prayer for a mandatory injunction requiring the defendant to remove all levees and other obstructions and to fill up such ditches as he had dug to divert the natural flow of the water.

The appellant, in his answer, denied all the material allegations of the complaint, and alleged that he was digging the ditch complained of on his own land for the purpose of straightening the natural flow to where it has a natural outlet under the public road by a large culvert that was put there by the road construction people, and that said watercourse had been there for years, unknown to the defendant. He alleges that he is cutting away from plaintiffs’ land a part of the overflow of water that would naturally come through there during high water, and is thus benefiting plaintiff’s land, instead of injuring it.

The cause was heard upon the depositions of the witnesses taken at the instance of the respective parties and the exhibits to these depositions, and the court entered a general finding for the appellees, and entered a decree directing the appellant “to clean out the channel of the branch leading from the road culvert at the foot of the hill north of Point Reimove Creek on the Hattieville & St. Vincent Road in Road District No. 4, from where same passes under said culvert, beginning at the east side, to where same empties into Point Remove Creek, and to completely fill up the ditch dug by him, within ten days from the rendition of the decree.” The court further decreed that the appellant be “perpetually enjoined from reopening said ditch or filling said branch, or placing any obstruction in said branch which might cause same to refill, or in any way change or divert the natural flow of the water. ’ ’

It is the contention of the appellees that the appellant has dug a ditch and built a levee on his own land which has t'he effect of diverting and changing the natural flow of surface waters through a branch or ravine which runs across and through the lands of the appellant, emptying into Point Remove Creek, and forcing them to flow in a body on to the lands of the appellees, to their great and irreparable injury. On the other hand, the appellant, while admitting that he has dug the ditch and built the levee as alleged, nevertheless contends that the ravine or branch, which the appellees claim he has obstructed, was nothing more nor less than the left-hand prong of a wet-weather branch which had only about a quarter of a mile to gather water in, and that this prong really brings water on to the land of the appellant from the appellees’ land, and that it meanders over appellant’s rich bottom land, about two acres, and that he dug the ditch and built the levee for the purpose of reclaiming his own land from the effect of the surface waters which were gathered up and brought on to his land through this wet-weather branch or ravine; that appellant’s purpose was only to control this surface water, and that the building of the ditch and levee only had the effect of turning the water and causing it to flow in a natural channel that went through the appellee’s land and emptied into Point Remove Creek; that the ditch and levee thus constructed did not in any manner injure the appellees’ land, but, on the contrary, would have the effect of benefiting, the same.

The parties litigant introduced testimony to sustain these respective contentions. The testimony is exceedingly voluminous, and it could serve no useful purpose to set forth and discuss in detail the testimony of the witnesses. After a careful reading of the record we have reached the conclusion that this is one of those cases where it is utterly impossible for this court to determine where the preponderance lies. In Leach v. Smith, 130 Ark 465-470, we said: “When chancery causes reach this court on appeal they are taken up for trial de novo on the record made up in the lower court, that is, on the same record, but the law and the facts are examined the same as if there had been no decision at nisi prius. In determining the issues of fact by this court in chancery causes, no weight is given to the findings of fact by the trial court, unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. But the issues of fact, as well as law, are tried by this court anew.”

We have carefully reviewed the evidence in this record, and it is so conflicting, and, to our minds, so evenly poised that we are unable to say which of the litigants is entitled to the preponderance. We are not convinced that the findings of the trial court are clearly against the weight of the evidence, and therefore must adopt the findings of the chancellor as our own. To be sure, if the appellant had done nothing more than merely divert the flow of surface waters, and was doing so in good faith for reclamation of his own land,' and with no purpose of injuring the adjoining lands of the appellees, and if the appellant could not have reclaimed his own land, by reasonable care and expense, otherwise than in digging the ditch and building the levee complained of, then he would have had the right to do so, provided that, by so doing, he did not unnecessarily obstruct the natural flow of the surface water in such manner as to injure the land of the appellees. Little Rock & Fort Smith Ry. Co. v. Chapman, 39 Ark. 463; Baker v. Allen, 66 Ark. 271; Ames Shovel & Tool Co. v. Anderson, 90 Ark. 235; McCoy v. Board of Directors of Plum Bayou Levee Dist., 95 Ark. 345-349.

The converse of the doctrine above stated is equally true. If the trial court found that the appellant was dealing with the surface water, it must also have found that he unnecessarily diverted its natural flow by digging the ditch and building the levee mentioned, and that by so doing he did the appellees an.irreparable injury. We cannot say that such finding of the trial court would be clearly against the preponderance of the evidence, for there was testimony to justify the court in finding that the appellant, instead of handling the surface waters as he was attempting to do, could, at much less expense, and with greater benefit to himself, and without any injury to the appellees, have cleaned out the channel of the branch which he had obstructed and allowed the water to flow through the same and in its natural course and outlet into Point Remove Creek. Furthermore, the court was justified in finding from the evidence that the appellant had gathered up the waters, which, through various small drains or tributaries, made their way into what counsel for appellant called the “left-hand prong of this surface water branch, ’ ’ and by digging the ditch and building the levee had cast these waters in a body into the prong, depression, swale, or slough, that ran into and upon the land of the appellees, where there was no sufficient natural outlet for them, and thereby had caused appellees’ land to overflow, and which overflows, in times of high water, would result in practically destroying several acres of valuable land.

The facts, as the court might have found them, bring this phase of the case well within the doctrine of St. Louis, I. M. Ry Co. v. Magness, 93 Ark. 46-53, where we said: “Even if these waters had been nothing more than surface waters, appellant'could not gather them into its ditch and cast them in a body upon the lands of appellees. This was practically the effect of appellant’s ditch. For the evidence shows that when the waters of Thomas Creek were by this means added to the waters that usually passed through other lower natural and artificial drains, these drains were insufficient to carry them off, so they passed on over and overwhelmed appellees’ lands.”

Where a person, by a ditch or levee, or other means, asserts his right to continuously cast the surface waters in a body upon the lands of another, to the irreparable and permanent injury of the latter, the party causing such injury is guilty of a private nuisance. The party injured may, if he so elects, resort to a court of chancery for a'mandatory injunction to abate such nuisance and to have the offending party forever enjoined thereafter from causing and maintaining such nuisance. Wellborn v. Davis, 40 Ark. 83; Taylor v. Rudy, 99 Ark. 128; High on Injunctions, secs. 794 et seq.; Farnham on Water Courses, 582a.

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


author: McCulloch, C. J.

text:
    Less v. Grismore-Hyman Company.
    Opinion delivered May 21, 1923.
    Replevin — alternative judgment — tender of property. — Where an alternative judgment is rendered in replevin, a surrender of the property and acceptance thereof by the plaintiff satisfies the judgment except as to' costs.
    Appeal from Crittenden Circuit Court, First Division; W. W. Bandy, Judge;
    affirmed.

      Berry & Wheeler, for appellant.
    There was no delivery of the logs to appellant after he recovered judgment for them in the replevin suit, and he is entitled to recover their value of the sureties on appellee’s bond, executed as required by § 8649, C. & M. Digest. 7 Art. 462; 47 Ark. 202; 114 Ark. 257; 23 R. C. L. 903; 3 Wend. 54; 26 Okla. 707; Ann. Cas. 1912-B 302; 107 Pa. 583.

      W. P. Briggs and 8. V. Neeley, for appellee.
    The logs were on appellant’s land, had never been removed therefrom, and he notified appellee not to come on the land nor attempt to take anything off the place except by law. The logs were delivered to him. The law does not require an unnecessary or vain thing. 93 Ark. 497; 136 Ark. 40. The evidence is amply sufficient to support the judgment, and it will not be disturbed. 107 Ark. 281; 111 Ark. 190; 114 Ark. 170; 90 Ark. 512, 119 S. W. 677; 92 Ark. 41, 121 S. W. 1056; 90 Ark. 494, 119 S. W. 648.
   McCulloch, C. J.

Max Less, the appellant, instituted in the Crittenden Circuit Court an action against appellee, Grismore-TIyman Company, to recover possession of a lot of sawlogs alleged to have been cart from a certain tract of land in that county owned by appellant. A delivery bond was given by the defendant in the action, in accordance with the statute (Crawford & Moses’ Digest, § 8649) with appellee, United States Fidelity & Guaranty Company, as surety.

The trial of the cause resulted in a verdict in favor of appellant for recovery of the logs, and fixing the value thereof at the sum of $1,010.30. The trial court rendered judgment in favor of appellant, pursuant to the verdict, for the recovery of the log’s, and an alternative judgment for $1,010.30, the value thereof.. This judgment was rendered on December 1, 1920, and at a subsequent term of the court an alternative judgment for recovery of the money was rendered against the surety on the delivery bond. Thereafter appellant caused an execution to be issued against United States Fidelity & Guaranty Company on the alternative money judgment, and on January 19, 1922, while the execution was in the hands of the sheriff, both of the appellees, Grismore-Hyman Company and United States Fidelity & Guaranty Company, filed a motion to quash the execution on the ground that the judgment had been satisfied by a return of the property, in accordance with the judgment, and the payment of the costs of the action. The motion was heard by the court on oral testimony, and appellees introduced proof tending to sustain the allegation of their motion that the judgment had been satisfied. After hearing the evidence, the court made an order quashing the execution, and an appeal has been prosecuted to this court.

Conceding that there was a conflict in the testimony, we are of the opinion that there was sufficient evidence to sustain the finding of the court that the judgment had been satisfied.

It appears from the testimony that the logs in controversy were cut on appellant’s land, and that they were lying on the land when the¡ original action was institnted by appellant to recover possession. The logs had been cut by one Herbert, who was also1 a party, and Herbert had sold and agreed to deliver the logs to Gris-more-Hyman Company at the mouth of Tyronza River. Appellees did not remove the logs from the land, but let them remain there until after the termination of the action and the rendition of the judgment in favor of appellant,- and the testimony of Herbert and Hyman, who were introduced as witnesses in the case, tended to show that, after the judgment was rendered, a delivery was tendered to appellant, and that the latter accepted the same and actually took possession of the logs. In support of this testimony there was introduced in evidence a letter written by appellant to Herbert, in response to the latter’s offer to buy the log's, showing that appellant had accepted the logs and had them in his possession, and refused to sell them to Herbert or to permit Herbert to go on the land for any purpose.

The alternative judgment for the value' of the property was for the benefit of the plaintiff in the action. Swantz v. Pillow, 50 Ark. 300. But a surrender of the property and acceptance thereof by the plaintiff necessarily satisfied the judgment, except as to costs, and the proof in the case is that appellees paid the costs. The proof does not show that appellees actually made a tender to appellant with the log’s present, but it does show that they offered to turn the logs over to appellant while they were still on his land, and that appellant thereafter treated them as his own property. If the logs had been in a damaged condition at that time, appellant had the right to refuse the offer of delivery, but it does not appear, from the evidence, that they were damaged; on the contrary, there is sufficient evidence that he accepted delivery and thereafter treated the logs as being in his possession.

We are of the opinion that the finding of the circuit court is supported by sufficient evidence, and the judgment is therefore affirmed.


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    Wasson v. Walker.
    Opinion delivered March 19, 1923.
    1. Lost instruments — weight and sufficiency of proof. — Where a contract alleged to have been lost related to and affected the title to land, its execution and contents must be established by clear and decisive evidence.
    2. Lost instruments — sufficiency of' evidence. — Evidence held insufficient to establish execution and contents of- an alleged lost instrument.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Brundidge S Neelly, for appellant.
    The findings and decree of the chancellor are clearly against the preponderance of the testimony. Appellee pleads a peculiar and unusual contract in defense of a suit to collect a vendor’s lien note which he admits having executed. A contemporaneous contract, or an alleged copy, the original being lost, whereby appellant guaranteed that -he would make a profit on the sale of the farm in one year. Otherwise if appellee failed to sell for more than the purchase price agreed to be paid to appellant, that appellant would refund the cash payment and appellee should have the farm free of rent. The execution of the notes was a new contract made afterwards, into which the whole negotiations were merged, whose terms cannot be changed, varied or contradicted by parol testimony. Smith v. McLcmghUn, 120 Ark. 366. Evidence to overcome written instrument must be clear, unequivocal and decisive. Mc-Cracken v. McBee, 96 Ark. 26.

      Miller & Tingling, for appellee.
    A casual reading of the record will-disclose that the finding and judgment of the chancellor are not against the preponderance of the testimony, and, under the well settled rule, they will not be disturbed on appeal. Teague v. Hutto, 132 Ark. 80; Satterwhite v. Bledsoe, 149 Ark. 670; Ford v. Miller, 149 Ark. 443; Wright v. Bennett, 150 Ark. 154; Williams v. Benton, 148 Ark. 654; Nelson
      v. Murray, 145 Ark. 247. Appellee’s defense is based upon a valid written instrument which transformed the transaction into a conditional sale, and, being lost, could be established by parol testimony without violating the rule against the introduction of parol testimony to change, contradict or vary the terms of a written instrument. 2 Devlin on Deeds, 1541, § 845, also p. 2101, § 1103; Gomvay v. Alexander, 7 Cranch 218, TJ. S. 3 L. ed. 321. The decree should be affirmed.
   McCulloch, C. J.

Appellant owned a farm in White County containing 118 acres, and on December 26, 1919, sold and conveyed it to appellee for the sum and price of $7,670, of which $1,000 was paid in cash by appellee, and notes were executed, payable annually, for the remainder. After the maturity of the first note appellee refused to pay the same, and this action was instituted by appellant in the chancery court of White County against appellee to foreclose the vendor’s lien.

Appellee filed an answer and cross-complaint, admitting the purchase of the land and the'failure to pay the matured installment represented by the first note, but setting forth a contemporaneous contract in writing, alleged to have been executed by appellant, whereby the latter agreed to guarantee that appellee could make a profit on a sale of the farm within one year from date, and that, if appellee should fail to sell the farm for more than the purchase price agreed to be paid to appellant, he (appellant) would refund to appellee the cash payment, and that appellee should, in the meantimev have the use of the farm free of rent. Appellee exhibited with his answer and cross-complaint a copy of the alleged contract.

The cause was tried on oral testimony and the copy of the alleged contract introduced in evidence by appellee, and the court made a finding in favor of appellee and decreed rescission of the sale. The court also decreed in favor of appellee for the recovery of the amount of his cash payment, after deducting the amount of a note-executed by appellee to appellant for the price of certain personal property purchased from the latter.

There is a conflict in the testimony concerning the alleged contemporaneous contract for the rescission of the sale. Appellant denied that he executed the alleged contract, or that there was any contract between the parties either oral or written, concerning a guaranty or a rescission of the sale. Appellant testified that the extent of the transactions between him and appellee was the sale and conveyance of the land and the execution by appellee of the notes in suit, and appellee’s failure to pay. He testified that he never heard of any claim that there was an additional contract until after the first of appellee’s notes fell due and this suit had been instituted or was about to be instituted.

Appellee testified that the contract, a copy of which is exhibited in the cross-complaint, was executed by appellant and delivered to appellee, but that the instrument had been lost. He produced what he asserted to be an exact pencil copy of the contract, and he says that he wrote the instrument, which appellant signed and which was lost. Other witnesses introduced by appellee, principally members of his own family, corroborated him in the statement that there was a contemporaneous contract executed at the time, or immediately before, the execution of the deed.

There is a conflict in the testimony, and the question presented on this appeal is whether or not the. finding of the chancery court in appellee’s favor was sufficiently supported by the evidence. The only question of law presented relates to the degree, or measure, of evidence required to establish a lost instrument.

This is not an attempt to reform the deed or notes, nor to contradict them in any respect, but appellee relies upon a contemporaneous contract, based upon the same consideration, for a rescission of the sale and conveyance within the time and upon the terms specified. No rule of evidence is violated by permitting appellee to prove the execution and contents of the lost instrument by parol testimony.

The alleged contract relates to and affects the title to land, it constitutes one of the muniments of title in the chain, and a mere preponderance of the testimony is not sufficient to establish it-; Its execution- and contents must'be established by evidence that is clear and decisive. Kenady v. Gilkey, 81 Ark. 147; Queen v. Queen, 116 Ark. 370; Jacks v. Wooten, 152 Ark. 515.

After careful consideration of the testimony in the case, we do not think it is sufficient to meet the requirements of the rule stated above. Conceding that the preponderance of the evidence is in favor of the finding, it falls short of being clear and convincing.

In the first place, the alleged contract is not only an unusual one, but, under the circumstances, it was a very unreasonable one for appellant to execute in connection with his sale of the farm. The evidence shows that, in the first assertion appellee made of the existence of the contract, he stated himself that he was relying upon a very unusual contract, and that he had put it away in the bank with his other papers. He denied this statement, but it was testified to by a wholly disinterested witness. The contract is unreasonable in that appellant was apparently willing to sell the place for a price and then guaranty that a profit would be made on resale within a year, and that if such profit was not realized he would refund the part of the price paid and rescind the sale.

It seems more reasonable that if appellant was willing to guaranty the realization of a profit within a year he would have kept the place hiimself so as to realize the additional price.

While there were several witnesses in addition to appellee himself who testified concerning the execution of the contract, there are discrepancies and inconsistencies in the testimony of each of them. All of the witnesses introduced by appellee, including himself, testified that the contract signed by appellant was written in ink on a certain kind of plain paper, and the copy which is exhibited with appellee’s cross-complaint and testimony is in pencil and is unsigned. That paper has been brought up here for our inspection and shows to be in pencil on ruled paped. It is dated December 26, 1919, the same date as the deed. Appellee testified that the contract was signed on the same day that the deed was signed but prior to the execution of. the deed. He claims that it was signed by appellant at his (appellee’s) home. His narrative of the circumstances is that appellant rode up to his lot, or pasture, that morning, and that he (appellee) went into the house and got the paper and brought it out, and that appellant examined it and signed it with a pen. Appellee testified that he prepared fifi copies of the paper the night before, and this is oorV"ated by his daughter, who testified that she saw her Wfher preparing the papers, and that they were both written in ink. Appellee claims that the original which was signed by appellant was in ink, and that his copy was prepared in pencil. There was no explanation given why the copy was prepared in a different way, and no reason was given why the copy was prepared at all. The instrument alleged to have been signed by appellant was, according to the testimony, delivered to appellee, and there appears no reason why appellee should have made a copy at all of the instrument which he was to keep in his own possession, and there was no satisfactory explanation as to how the original was lost, and why the copy was so carefully preserved.

Appellee testified that the pencil copy was not dated at the time, but that he dated it when he recorded the deed on December 24, 1920, nearly a year after the transaction occurred.

It is undisputed that.the deal for the sale of the property was closed and the deed executed in the office of appellant’s attorneys in Searcy, and appellee concedes that neither the attorneys nor the notary public before whom the deed was executed were apprised of the fact that there was a contemporaneous contract. Appellee testified that appellant requested him to say nothing about the contract because he did not want his wife to know that he had executed such a contract, yet in spite of this explanation appellee introduced several witnesses to show that he made no secret of the contract among those with whom he came in contact. Appellee admits that he said nothing to any one connected with appellant about having such a contract until' after his first note became due. Dr. Moore, a disinterested witness, testified that, after the first note became due, and appellee had failed to pay it, he approached appellee on the subject at the request of appellant, who had written from Illinois, and that appellee then stated that he had an unusual contract which was then with his papers in the bank, and that the contract was written in pencil. It developed that appellee had no papers in the bank, and when he introduced his proof concerning the contract it was to the effect that the lost contract was written in ink and signed by appellant with a pen.

There are many other discrepancies and inconsistencies in the testimony introduced by appellee. The witnesses differ, especialy as to the time the alleged contract was executed. They say that it was before Christmas, and appellee claims that it was the morning that the deed was executed, which was the day after Christmas.

Considering the fact that the contract is such an unusual one and unreasonable in its nature, and the inconsistencies in the testimony as to the details of its execution, the testimony does not appeal Co us as being at all satisfactory or convincing, even if it be conceded that there is a -bare preponderance in favor of the finding that the contract was in fact executed.

Our conclusion is that the chancery court erred in establishing and enforcing the lost contract. The decree will therefore be reversed, and the cause remanded, with directions to dismiss appellee’s cross-complaint for want of equity, and to enter a-decree for the foreclosure of appellant’s lien as vendor, in accordance with the prayer of his complaint.

It is so ordered.


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    Lesser-Goldman Cotton Company v. Adams.
    Opinion delivered March 26, 1923.
    1. Boundaries — evidence.—In a suit by a vendor of land against a purchaser from his vendee to enjoin him from attaching a building to vendor’s wall, in which there was testimony that the wall projected over the boundary between plaintiff and defendant, .evidence held not to ’ show that plaintiff sold the land on which defendant was erecting a building according to its physical boundaries, of which the wall in question was a part.
    2. Evidence — parol evidence to explain deed. — In a suit by a vendor against a purchaser from his vendee to enjoin defendant from attaching a building to plaintiff’s wall, where a deed to defendant described the land by designating lots and parts of lots, giving the exact measurements of land conveyed in feet, there was no such ambiguity or uncertainty in the deed as rendered admissible oral testimony which tended to prove that the land was sold to defendants in gross as determined by physical boundaries, rather than by the number of feet.
    3. Boundaries — evidence.—In a suit by a vendor of land against one who purchased from his vendee to enjoin defendant from attaching a building to plaintiff’s wall, where plaintiff had conveyed to its vendee a tract described as 100 by 75 feet and by lot numbers, evidence held not sufficient to show that there were 75 feet between the west boundary and plaintiff’s wall, claimed to be the east boundary, so as to defeat a defense that the wall in question was partly on land conveyed by plaintiff.
    4. Pleading — refusal to allow amendment during argument.— In a suit by a vendor ap-ainst a purchaser from his vendee to enjoin the latter from attaching a building to plaintiff’s wall, when the sole issue presented at the hearing was whether plaintiff’s building projected on defendant’s land, it was not error to refuse to allow plaintiff to amend his complaint during argument so as to ask a reformation of deeds in the event the court found against it on other points.

      5. Injunction — relief to defendant. — In a suit by a vendor against a purchaser from his vendee to enjoin him from attaching a building on land conveyed by plaintiff to his wall, where plaintiff’s wall projected over the boundary of the land conveyed, a decree permitting defendant to join the building to the wall was correct, since to refuse that right would be to deny to defendant the right to use his own property.
    6. Injunction — damages for wrongful injunction. — In a suit by a vendor against one who purchased from his vendee to enjoin defendant from attaching a building to his wall, where the testimony showed damages amounting at least to $150 to defendant for the wrongful issuance of an injunction, award of that amount in a decree for defendant was proper, under Crawford & Moses’ Dig., §§ 5806, 5822.
    Appeal from Clark Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      Joe Hardage and R. W. Huie, Jr., for appellant.
    Trial court erred in dismissing complaint for want of equity and assessing 'damages to defendant. Appellees admitted they bought the vacant lot and were told their deed conveyed no interest in west wall of appellant’s building, and line was so fixed by agreement. Diggs v. Kuntz, 132 Mo. 250; 53 A. S. R. 488. The Anderson fence was the boundary line, by agreement. 9 C. J. 235; 96 Ark. 168; O’Neill v. Ross, 100 Ark. 555; Butler v. Hines, 101 Ark. 409. Where one buys land with knowledge of a physical encroachment upon it, he is not allowed to complain about it. Kahn v. Cherry, 131 Ark. 49; Skinner v. Stone, 144 Ark. 353; Suter v. Mason, 147 Ark. 505. The court should hav.e permitted amendment asking reformation of deeds to conform to proof.

      McMillan & McMillan, for appellees.
    The case was tried by appellant solely on the theory that its building was on the east 25 feet of lot 10, and not until its closing’ argument did its attorneys raise the point of physical boundaries and.reformation of the deed. Description- of land conveyed was accurately described by specified number of feet. Cox v. Fisher, 146 Ark. 223. There is no uncertainty of description, and parol evidence not admissible to contradict or vary language of deed. Dorr v. School Dist., 40 Ark. 287; Abbott v. Parker, 103 Ark. 425; Jenkins v. Ellis, 111 Ark. 222. Appellant’s wall was on appellees’ land and they had the right to use it. Truloiok v. Parse, 83 Ark. 152; note Dunscomb v. Randolph (Tenn.) 89 Am. St. Rep. 927, 939. Damages were rightfully assessed. Secs. 5806, 5322, C. & M. Digest.
   Wood, J.

This action was instituted by the appellant against the appellees. The appellant alleged that it is the owner of the east twenty-five feet of lot 10 in block 23 of Browning’s survey of the city of Arkadelphia, Arkansas, on which is located a two-story brick building; that the appellees are engaged in the erection of a brick building on the west part of said lot, and have wrongfully trespassed on appellant’s building by morticing holes m the wall and inserting therein ceiling joists, and attaching their building to the appellant’s building; that the appellees were further encroaching on the appellant’s property by making further connections to appellant’s building. The appellant alleged that the west wall is wholly the property of appellant, and that the appellees had no right to join thereto. The appellant prayed that the appellees be enjoined.

The appellees in their answer denied that the appellant was the owner of the property mentioned. They admitted that they were erecting a brick building, but denied that they had wrongfully joined to appellant’s building, and denied that the wall was on appellant’s land, and stated that the wall to which they were joining was on the appellee’s land; that they were the owners of the wall, and had a perfect right to join to the same. The deed under which the appellees claimed title describes the land as follows: “E% of lot 8 and all of lot 9 and 15 feet off the west side of lot 10, measuring 75 feet east and west, 100 feet north and south, located in block 23 of Browning’s survey to Arkadelphia, Arkansas.” This description was according tó a survey made by one Cutler, who testified as a witness for the appellant. The land was sold by the appellant under this description to the Arkadelphia Overland Company, and by that company in turn to the appellees. The surveyor details the method he use’d in making the survey in order to get the legal numbers, as above mentioned, to put in the deed, and he made a plat and marked on the same the legal description of the property, which was inserted in the deed. He stated that the brick building of appellant, at the time he made survey in 1919, was on the east 25 feet of lot 10, and he began his survey at the southwest corner of appellant’s building and ran west 75 feet, thence north 100 feet, thence east 75 feet to the northeast corner of the Lesser-Goldman building, and the description in the deed to the Arkadelphia Overland Company was prepared from the survey and plat just made, which is the same description as that in the deed from the Overland Company to the appellees.

One Tennyson, who was manager of the Overland Company in 1919, and who negotiated the deal for the Overland Company in the purchase of the property from appellant, stated that he saw the survey, and that the Overland Company bought 75 feet west of the Lesser-Goldman building. “It was understood, when we purchased the property,” says the witness, “that we would not have any interest in the west wall of the Lesser-Goldman Cotton Company’s building.” The Overland Company afterwards sold this vacant property to the appellees. This witness further stated that he had a conversation witli Mr. Nowlin, one of the appellees, before he bought the property, and Nowlin asked witness if the Overland Company owned any portion of the wall, and he told Nowlin that it did not. Witness at that time had written to the appellant to see what it wanted for a half interest in the wall. Witness told Nowlin that the Overland Company owned 75 feet west of the building. On cross-examination witness stated that the Overland Company received a warranty deed from the appellant for the land bought by it from appellant, and made a warranty deed to the appellees, conveying the land that is set ont in that deed. On redirect examination he stated that it was not the intention of the Overland Company to convey any property other than the vacant property lying west of the wall, and, if the deed described or called for any other property, it was not the intention of the Overland Company to sell it..

Wilson, who represented the Lesser-Goldman Company in the sale of the property to the Overland Company, corroborated the testimony of the surveyor to the effect that the survey was made for the purpose of getting a legal description of the vacant property so that it could be put in the deed. He states also that he sold the property to the appellees for the Overland Company. It was referred to at the time of the deal as the vacant property of the appellant. Neither of the appellees asked witness if the property carried any interest in the wall, and witness did not represent to them that it carried any interest.

Another witness, by the name of Turguette, also corroborated the testimony of the other witnesses as to the manner in which Cutler made the survey, and to the effect that there were full 75 feet between the west wall of the Lesser-Goldman building and Anderson’s fence, which constituted the western boundary of the vacant property which the appellees purchased from the Overland Company, and wMch that company purchased from the appellant. Correspondence was introduced between Anderson and the representative of the Overland Company, as the result of which Anderson moved his fence back to the line established by Cutler at the time of the purchase by the Overland Company of the vacant property from the appellant. After the appellees made their purchase and started to erect their brick building, they employed J. R. Hay good, a civil engineer and surveyor, assisted by F. A. Gerig, another civil engineer and surveyor, to survey the property described in their deed from the Overland Company. These surveyors testified, giving the method used by them in making the- survey. They ascertained that the brick building of -appellant then on the ground would be three inches too far west of the east line of the appellees’ property, described in the deed, on the front or south end of that building, and fifteen inches too far west at the north end of the building. A map or plat made by these surveyors was introduced as evidence.

The contractor who built the brick building for the appellees testified that he lined the street in front of the brick building of appellant and squared the building, and that it lacked twelv.e inches of being square, and if the southwest corner of the building is on the line, the northwest corner is twelve inches too far west, and is on the property of the appellees. It begins to get on their property as soon as you leave the southwest corner and gradually gets more over the line until the northwest corner is reached, at which point it is twelve inches over the line. This would put the Lesser-Goldman building at the northwest corner two feet over the line, counting twelve inch es for the foundation, and the fact that the building was twelve inches too far over west. Witness put the ceiling joists into the building, and had to build a frame wall after the injunction was issued. In the event the injunction was wrongfully issued, it would cost not less than $150, including the tile flooring, to connect up with the brick wall of appellant. There was testimony of another witness, corroborating the testimony of these witnesses, to the effect that the Lesser-Goldman building at the south end was three inches too far west and at the north end twelve inches over, which, at the northwest corner, would put this building two feet and three inches on the defendant’s property at that end.

The appellees testified to the effect that they purchased the land according to the description thereof as contained in their deed. Their deed calls for 75 feet front, but they did not get that much. When they went to build, they found that the Lesser-Goldman wall was on their property four inches too far west, as shown by the surveys made by the surveyors employed by them to make the survey at the time they went to build, and the measurements made by the contractor.

Nowlin, who negotiated the trade for the appellees with the Overland Company, stated that the deed described the property which they bought, and that he did not know that the Lesser-Goldman building was on their property until it was discovered by the surveyor and measurements as above indicated. Nowlin testified that he did not agree with Tennyson or Wilson, who negotiated for the Overland Company, or .any other person, as to where the lines were. He did not know where the lines were when he bought it. He asked Tennyson how much property he had there, and Tennyson told him that he had 75x100 feet, and told him that was what the deed called for. He bought what they represented to him to be 75 feet of property, and did not know where the lines were, and did not agree with them beforehand upon what the lines were. He thought he was buying 75x100 feet, and supposed that it lay between him and the Lesser-Goldman building. On cross-examination he stated that he asked Tennyson if he owned any interest in the wall, and Tennyson stated that he did not have any interest in the wall. Nowlin thought, when he bought the property, that the Overland Company had 75x100 feet, and that the Lesser-Goldman building was on the Lesser-Goldman property.

The anpellant introduced in rebuttal witness Cutler, who testified that, in his first survey, he measured the whole block 23 and found that there were 200 full feet, and took the east line of the block and ran his west line north and south parallel with the east wall of the Lesser-Goldman building, and set off the 75x100 feet in this way. In his last survey he shows how, by taking different measurements, he found that there was more land in the original Browning’s surve}?- than the plat of such survey called for, and that none of the streets or blocks west oi Sixth Street was actually laid ont and used according to the original plat. By taking the east line of Sixth Street as supposed to be correct, and by using the pro-rated measure, and by assuming that it was correct, the southwest corner of the Lesser-Goldman building would be about on the line and the northwest corner would be 55/100 of a foot further west. He shows that by squaring the Lesser-Goldman building parallel with the east line of Sixth Street made a difference between his last and his first survey outside of the pro-rated measure. His last survey shows that the Lesser-Goldman building was partly on the property of the appellees.

Appellant also introduced one Kauffman, who built the Lesser-Goldman building. He testified that he did not remember when he constructed it. It was built according to the line as given him, and at right angles to the street, and perfectly square, as near as it could be made, and as much so as any of the other buildings he put up. On cross-examination this witness said, <£Of course, if the west wall was over the line, the defendants (appellees) could not,build the wall where there was one already.”

Upon substantially the above testimony the court found that the appellees were the owners of. fifteen feet off of the west side of lot 10, block 23, of Browning’s survey, and that the appellant was the owner of the east •twenty-five feet of said lot 10; that the west wall of appellant’s building extended over on that part of lot 10 owned by the appellees, so, that it prevents the free use of their lot by the appellees and prevents them from erecting a wall on the edge of their lot. The court further found that the defendants (appellees) had a right to join to appellant’s west wall, and that the injunction was Wrongfully issued, by reason of which the appellees had been damaged in the sum of $150. The decree further contains this recital: £ £ The court further finds that the attorneys for the plaintiff, while arguing the case, asked that, if the court should find the property over the line, that, by way of alternative relief, the pleadings be considered as amended asking for reformation of the deeds to conform to the proof.” The court denied this request. From the decree dismissing the complaint for want of equity and awarding the appellees damages in the sum of $150 is this appeal.

1. The appellant contends that the appellees admitted- that they thought they were buying the vacant property, and were told that the deed to them conveyed no interest in the west wall of the Lesser-Goldman building, and that by accepting the deed they agreed that the physical boundaries surrounding the property constituted a true line, and were now estopped from contending otherwise. But it will be seen, from the testimony set out above, that there is a decided conflict in the evidence as to whether the appellees purchased the property according to the physical boundaries. The appellee, Nowlin, Who negotiated the deal for the appellees, categorically denied that he ever agreed with the agents who conducted the negotiations for the Overland Company as to where the lines were. On the contrary, he testified positively that he did not know where the lines were, and did not know that the Lesser-Goldman building, or part of it, was on the property that he was buying. He stated that the agent of the Overland Company who sold him the property stated that that company had 75x100 feet.

The testimony of appellant’s own witnesses shows that the property was sold to the appellees according to a plat that was made by Cutler, the surveyor. He made the survey for the purpose of ascertaining the legal description of the property that was to he sold, and it was described in the deed, according to the plat that he made, in language that would not have been used if the property had been sold by physical boundaries, but by description which expressly conveys the lots and parts of lots by feet. Therefore, even if it were proper to consider the oral testimony, we conclude that the preponderan.ce of the evidence does not show that the property was sold according to physical boundaries. Bather to the contrary. But the court, after the introduction of the deed in controversy under which the appellees obtained title, might have very properly refused to consider the oral testimony, which tended to prove that the land in controversy was sold to the appellees in gross, as determined by physical boundaries, rather than by number of feet. There is absolutely no ambiguity or uncertainty in the deed from the Overland Company to the appellees. It describes the lots and parts of lots, giving the exact measurements of the land conveyed by the deed in feet. Dorr v. School Dist., 40 Ark. 237; Abbott v. Parker, 103 Ark. 425; Jenkins v. Ellis, 111 Ark. 222; There is nothing in the testimony to justify a finding that the appellees are estopped by their conduct from claiming the property as it is described in their deed.

2. The appellant contends that the west boundary line of the vacant property had become fixed by agreement between the adjoining former owners, grantors of the appellees, and that the evidence is undisputed that there was a full 75 feet between the Anderson fence, the west boundary line, and the west wall of the Lesser-Goldman building. We cannot agree with appellant in this contention. As we have already séen, the effect of the testimony of Nowlin, who negotiated the deal for the appellees, was that he did not buy any of the property according to physical boundaries, but he bought the property as it is described in the deed, and according to the survey and plat made by Cutler. But, if it be conceded that the Anderson fence, mentioned in the testimony, was the west line of the appellant’s property, still, according to the last survey made by Cutler, there would not be 75 feet between the Anderson fence and the Lesser-Goldman building. For Cutler says if you begin at the southwest corner of the west wall of the Lesser-Goldman building and run west 75 feet, thence north 100 feet, thence east 75 feet, you would come in contact with the ■ west wall of the Lesser-Goldman building before you got 75 feet — you would, hit the west wall of the Lesser-Goldman building at 74% feet. Cutler at first testified that the Lesser-Goldman building, according to his survey, was on the east twenty-five feet of lot 10, and the-witnesses for appellant who swpre that it was 75x100 feet between the Lgsser-Goldman building and Anderson’s fence based this testimony on the assumption that the first survey made by Cutler was correct, and that the Lesser-Goldman 'building was on the east 25 feet of lot 10. But the testimony of Cutler himself shows that, according to his last survey, he was mistaken in.saying that the Lesser-Goldman -building was on the east 25 feet of lot 10, and that his first survey was therefore incorrect, and that, according to his last survey, the northwest corner of the west wall of the Lesser-Goldman building is on the property of Nowlin and Adams about six inches, and the entire west wall for three-fourths of the distance is over the line and on the property of the appellees.

3. In the last place, appellant contends that, under the prayer for general relief, the appellant was entitled to have its pleadings considered as amended so as to grant appellant reformation of the deeds, in the event the court found against it on the other points. The pleadings and testimony show that the sole issue in the case, as the same was presented’to the court at the hearing, was whether or not the building of appellant was on the east 25 feet of lot 10 in block 23, Browning’s survey. The recitals of the decree show that the court found that the appellant did not raise the issue that, if its property were over the line, it was entitled to alternative relief by way of reformation of deeds. The court did not err in refusing to allow the appellant to amend its pleadings and to ask for reformation of the deeds, and thus to introduce a new issue at that juncture of the trial. The request of the appellant came too late, and the court ruled correctly in disposing of the case according to the pleadings and the testimony adduced to sustain the issue thus presented.

4. The court ruled correctly in decreeing that the appellees had a right to join to the west wall of appellant’s building. “This is upon the ground that to permit the appellant’s building to remain without allowing appellees the right to use the projecting wall would be to deny the appellees the free use of their property. Because the testimony shows that appellant’s wall projects over on the appellees’ lot, and appellees cannot use their lot without removing the projection. Therefore, to deny the appellees the right to join to appellant’s west wall would be tantamount to refusing them the right to use their own property.” Trulock v. Parse, 83 Ark. 152. See also note to Dunscomb v. Randolph, 89 Am. St. Rep. pp. 915, 927, 939.

The testimony shows that, by reason of the wrongful issuance of the injunction, the appellees were damaged in at least the sum of $150, which the court awarded in its decree. This award was correct. Secs. 5806-5822, Crawford & Moses’ Digest. The decree is in all things correct, and it is therefore affirmed.


author: Hart, J.,

text:
    Reidmiller v. Comes.
    Opinion delivered March 26, 1923.
    Mortgages — priority.-—-Where two mortgages on the same land were executed on the same day, the one first recorded has priority, under Crawford & Moses’ Dig., § 7381, even though its caption recites that it is “Second Mortgage with Power of Sale, Realty,” and the caption of the other mortgage is “Mortgage with Power of Sale, Realty.”
    Appeal from Conway Chancery Court; W. E. AtJcinson, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    John R. Comes brought this suit in equity against Joseph Reidmiller, F. D. Brockington, W. H. Bruce and George "W. Yance, to foreclose a mortgage on real estate.

      Joseph Beidmiller took a mortgage on the same real estate, to secure an indebtedness to him, which he claimed was a superior lien to the mortgage of the plaintiff, and asked for a foreclosure of the same.
    It appears from the record that on August 16, 1920, W. H. Bruce and George W. Vance executed their promissory note for $325 to F. D. Brockington, and, to secure the payment of the same, executed a mortgage on the forty acres of land in controversy. Before the note became due, Brockington transferred it for a valuable consideration, together with a mortgage given to secure it, to John B.. Comes. Default has been made on the principal and interest of said note.
    George "W. Vance and W. H. Bruce also executed a mortgage on the same land to Joseph Beidmiller .on the 16th day of August, 1920, to secure the payment of $1,184.40, which they owed him, and no part of this indebtedness has been paid. The mortgage of G. W. Vance and W. H. Bruce to F. D. Brockington was filed for record on the 18th day of August, 1920, at eight o’clock a. m., and was duly recorded. The mortgage of these same parties to Joseph Beidmiller on the same land was filed for record on the same day at eleven o’clock a. m., and duly recorded.
    The caption of the mortgage of Vance and Bruce to F. D. Brockington contains a heading as follows: “2nd Mortgage with Power of Sale, Bealty.” The mortgage of these parties to Beidmiller contains a caption as follows : “Mortgage with Power of Sale, Bealty.” The two mortgages appear to have been written on the same kind of printed forms.
    It was the contention of Beidmiller that, although his mortgage was filed subsequent to that of Brockington, it was a superior lien because of the caption to Brockington’s mortgage. On the other hand, the plaintiff, who is the assignee of the Brockington mortgage, contends that his mortgage is a superior lien. Hence this lawsuit.

      The 'chancellor found the issues in favor of the plaintiff, and a decree was entered accordingly. The defendant, Reidmiller, has duly prosecuted an appeal to this court.

      M. H. Bean, for 'appellants.
    The sole question is whose mortgage constitutes a prior lien, it being insisted that appellant’s does. The mortgages were executed and filed for record on the same day, and the one securing the note assigned to appellee shows on its face to be a “second mortgage,” and he was also inf ormed of this fact when he purchased the note at a discount. Bland v. Fleemian, 58 Ark. 84; Miller v. Fraley, 23 Ark. 744; 19 R. C. L. 196.

      Strait & Strait, for appellee.
    The mortgage securing appellee’s note was filed for record before appellant’s mortgage1, and constitutes a prior lien. Sec. 7381, Crawford & Moses’ Digest; Mitchell v. Badgett, 33 Ark. 287; Thornton v. Findley, 97 Ark. 432; Oates v. Walls, 28 Ark. 214; Turman v. Bell, 54 Ark. 273. Nor is there any such reference to or recital of ia prior mortgage in mortgage securing note sued on by appellee as affects the lien thereof. Neither would actual notice to appellee of a prior unrecorded mortgage affect his security. Smead v. Chandler, 71 Ark. 517; Leonard v. Flood, 68 Ark. 168; Bingo v. Wing, 49 Ark. 105; Jacoway v. Gault, 20 Ark. 190; Main v. Alexander, 9 Ark. 112.
   Hart, J.,

(after stating the facts). Sec. 7381 of Crawford & Moses’ Digest provides that every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before.

In the construction of the statute this court has held that, between conflicting mortgages, the one first filed for record will have priority. Mitchell v. Badgett, 33 Ark. 387. This court has also held that, by accepting a mortgage which recites the first mortgage and provides for its payment, the second mortgagee, whose mortgage has been first filed for record, estops himself to deny the existence of said mortgage and the validity of its lien. Clapp Bros. & Co. v. Halliday Bros., 48 Ark. 258, and Rose v. Million, 147 Ark. 530.

Counsel for Reidmiller invoke this rule of estoppel in the instant case. We do not think, however, it has any application under the facts presented by the record. The recitation in the caption or heading’ of the Brockington mortgage that it is a second mortgage is far from being a recital that it was made subject to the mortgage on the same property to Reidmiller. Both-mortgages appear to have been executed on the same day and on the same kind of printed form, and it may be that the mortgage to Reidmiller was executed first, but, as we have already seen, under our statute, between conflicting mortgages the one first filed for record will have precedence, in the absence of a recital that it is made subject to another mortgage on the same property.

It follows that the decree will be affirmed.


text:
    Lipscomb v. DeLong.
    Opinion delivered March 26, 1923.
    1. Trover and conversion — measure op damages. — 'Where the widow of a tenant in common permitted defendant, deceased’s co-tenant, to .take charge of cotton belonging to deceased and defendant, and to sell same to the best advantage, which defendant did, he was accountable for the price obtained, and not for the price the cotton would have brought on a subsequent date on which the deceased’s administrator demanded a settlement; the conversion having occurred on the date of sale.
    2. Trover and conversion — time op conversion. — Where a tenant in common who had an interest in a crop of cotton, in pursuance of directions of the widow of his co-tenant, took charge of the cotton and deposited it in a warehouse in his own name for the purpose of storing it, and later sold it, the cotton was not converted by the storage, but by the sale.
    Appeal from Conway Circuit Court; A. B. Priddy, Judge;
    affirmed.

      STATEMENT OE PACTS.
    J. R. Lipscomb, administrator of the estate of Will, McArthur, deceased, sued W. E. DeLong to recover damages for the wrongful conversion of twenty-two bales of cotton, of the value of $2,218.92.
    DeLong denied the allegations of the complaint, and, by way of cross-complaint, alleged that the estate of Will McArthur, deceased, was indebted to him in the sum of $1,204.89 for supplies furnished as tenant of DeLong.
    Mrs. Sarah McArthur, the widow of Will McArthur, deceased, was a witness for the plaintiff. According to her testimony, her husband died on October 25, 1920, and Charley McArthur looked after gathering the crop. She did not give W. E. DeLong permission to sell the cotton. She admitted that her husband was indebted to DeLong for supplies furnished him with which to work the crop. Her husband and DeLong owned the land on which the crop was raised, as tenants in common.
    According to the testimony of the administrator, he went to DeLong and demanded settlement of the cotton on the 24th day of September, 1921. DeLong refused to deliver the cotton to him or to pay for it. Cotton was worth 22 and 23 cents per pound at that time. J. R. Lipscomb was appointed administrator of the estate of Will McArthur, deceased, on the 22nd day of September, 1921. There was no administrator of said estate before that time.
    W. E. DeLong was a witness for himself. According to his testimony, Will McArthur owed him $1,992.39 for supplies furnished with which to make the crop on the land in question at the time he died. After the death of her husband, Mrs. McArthur turned over the twenty-two bales of cotton to DeLong to handle as best he could. DeLong was to receive one-third of the cotton for rent and enough of the balance to pay for the supplies furnished. The cotton was first hauled to DeLong’s house and left there for the purpose of keeping it in a dry place. DeLong subsequently removed it to bis warehouse, and deposited it there in his own name. He sold the cotton on July 10 for ten cents per pound, which was the highest market price at that time.
    Other witnesses corroborated the testimony of DeLong to the effect that he sold the cotton for the highest market price.
    DeLong then made up a statement of his account with the estate of Will McArthur, deceased, on this basis, and from, this statement there was a balance due him of $601.02. Subsequently he rendered another statement in which he claimed a balance due him of $787.48.
    Mrs. McArthur denies that she gave DeLong permission to sell the cotton, and for this reason the plaintiff demands that he account for the price which it could have 'been sold for on the 24th of September, 1921.
    The court held that the sale by DeLong of the cotton on the 10th day of July, 1921, constituted a conversion of ■it by him, and that he was accountable to the estate of W. A. McArthur, deceased, for its market value at that time.
    DeLong accounted to the McArthur estate on this basis, and his own statement showed a balance of $601.02 owing him. The case was withdrawn from the jury by the court, and judgment was rendered in DeLong’s favor for that amount. The plaintiff has appealed.

      Edward Gordon, for appellant.
    Instructions 1 and 2, declaring as a matter of law that appellee was only required to account for the market price of the cotton when he sold it, were wrong, since he converted it when he removed it in violation of his obligation as bailee. No right of action accrues against a bailee before a refusal to deliver the property when demanded. McLain v. Buff man, 30. Ark. 428; Wilson v. Gurry, 149 Ala. 368, 42 So. 753; Louisville v. Elec. By. Go. 141 Ala. 671, 37 So. 659; Kink v. Franklin, 31 So. 467; Moore v. Monroe Refrigerator Go., 29 So. 447; Salida Bldg. Assn, v. Davis, 64 Pac. 1046; Maynahan v. Prentice, 52 Pac. 94;
      Semons v. Adams, 79 Conn. 81, 63 A.tl. 661; Seeger v. Lynch, 72 111. 498; James v. Gregg, 17 Ind. 84; Brewer v. Sivecker, 116 N. W. 704; Auld v. Butcher, 22 Kan. 400. Same rule obtains in other States and U. S. Sup. Court. If rule in foregoing cases not followed, then the conversion took place when appellee bailee put the cotton in the Morrilton warehouse in his own name, .and the market price was 17 cents. Praseie v. Harmon, 79 Kan. 855, 98 Pac. 771; Wagoner v. Marple, 10 Texas Civ. App. 505, 31 S. W. 631, 38 Cyc. 2033; Dixie v. Harrison, 163 Ala. 304, 50 So. 284; Badger v. Batavia Paper Mfg. Go., 70 HI. 302; Follett v. Edwards, 30 HI. App. 386; Purcell Cotton Seed Oil Mills v. Bell, 7 Ind. Ter. 717, 104 S. W. 944; Porter v. Foster,'20 Me. 391, 37 Am. Dec. 59; Gilmore v. Newton, 9 Allen 171, 85 Am. Dec. 749; Andrews v. Shattuck, 32 Barb. 396; Graham v. Purcell, 126 N. Y. App. 407, 110 N. Y. Supp. 813; Schechter v. Watson, 35 Mise. 43, 70 N. Y. Supp. 1; Gorotinsky v. Cooper, 26 Mise. 138, 55 N. Y. Supp. 970; Biford v. Montgomery, 7 Vt. 411; 47 Century Digest, Trover & Conversion.

      Strait S Strait, 'for appellee.
    The only question here is whether the trial court correctly held that the cotton was converted when appellee sold it, and must account- for its value at that time, and it unquestionably did. Peterson v. Gresham, 25 Ark. 386. The instructions correctly declared this law. American Soda Fountain Go. v. Futrall, 73 Ark. 464; Jefferson v. Hále, Admr. 31 Ark. 286; Parks v. Thomas, 138 Ark. 70; Brown v. Allen, 67 Ark. 386; Kelley v. McDonald, 39 Ark. 333; Ingram v. Marshall, 23 Ark. 115; Wood v. Wilds, 11 Ark. 754.
   Hart, J.,

(after stating the facts). It is the contention of counsel for the plaintiff that the court erred in holding that DeLong converted the cotton at the time he sold it and was only accountable to the McArthur estate for its market value on that date.

Counsel for the plaintiff insists that Mrs. McArthur did not authorize DeLong to sell it, and that the plaintiff should be entitled to recover the value of the cotton of the date of September 24, 1921, when the administrator requested DeLong to sell it.

According to the testimony of DeLong himself, Mrs. McArthur, after her husband’s death, told him to taire charge of the cotton and sell it to the best advantage, and divide the proceeds after deducting the .amount of her husband’s supply account.

If DeLong’s testimony is true, he should only be required to account to the McArthur estate for the price for which he sold the cotton. His own testimony shows that this was the best price obtainable at that time, and his testimony is corroborated by that of cotton-buyers. It is not contradicted or attempted to be contradicted by the other evidence in the case. There is no evidence in the case tending to show that he was negligent in selling the cotton at that time, or that he .acted in bad faith in so doing. On the contrary, the evidence shows that he acted in the utmost good faith in the matter. Hence, under his testimony, he should only account to the estate for its share of the proceeds of the cotton.

On the other hand, if the testimony of Mrs. McArthur is accepted as true, the result would be the same. Under her testimony, DeLong converted the cotton to his own use when he sold it on the 10th day of July, 1921. The administrator of the estate of Will McArthur, deceased, was entitled to recover the value of the crop at that time, less one-third going to DeLong for rent and the amount of his supply account. Peterson v. Gresham, 25 Ark. 380; Jefferson v. Hale, 31 Ark. 286; Kelley v. McDonald, 39 Ark. 387; and Parks v. Thomas, 138 Ark. 70.

DeLong had an interest in the cotton, and the circuit court rightfully held that there was no conversion of it because he carried it from his house and deposited it in his warehouse in his own name for the purpose of storing it. The court was also right in holding that the crop was not converted by DeLong until he sold it on the 10th day of July, 1921.

The case of Papan v. Thomason, 156 Ark 231, has no application under the facts presented by the record. Tn that case the tenant was entitled to one-half of a rice crop, and made several demands npon his landlord for a division or a sale of the rice, and the court held that he had a right to treat the date of the last demand and refusal as the date of conversion, and to sue for the value of the rice on that date.

Here no demand was made on DeLong to sell the cotton before he did sell it. Therefore he was properly held to account for its value at the market price on the clay he sold it and thereby converted it to his own use.

The undisputed evidence shows that DeLong sold the cotton for its highest market price on the. 10th day of July, 1921, and that be accounted to the McArthur estate for its share of the proceeds. The undisputed evidence also shows that the McArthur estate is indebted to him in the sum of $601.02, the amount for which judgment was rendered in his favor against said estate.

It follows that the judgment will be affirmed.