author: "Wood, J.

text:
    Kansas City Southern Railway Co. v. Arkansas Railroad Commission.
    Opinion delivered November 21, 1927.
    1. Railroads — power over train service and stations. — In the absence of a statute, railroad corporations authorized to do business in the State would have plenary power over such matters as train service and stations.
    2. Railroads — petition as to train-service, depots and stations. —Under Acts 1907, p. 356, as amended by Acts 1907, p. 821, a petition signed by at least 15 bona fide citizens is essential to the jurisdiction of the Railroad Commission to consider and adjudge questions of train service, and stations, and their establishment, enlargement, etc.
    3. Railroads — discontinuance of station. — Where a railroad is seeking to have a station agent discontinued, the statutory requirement of a petition-of 15 bona fide citizens is inapplicable.
    4. Railroads — jurisdiction • of railroad commission. — The Railroad Commission has jurisdiction under the statutes over the subject-matter of abolishing station agencies as well as creating them, though the agencies were created by special acts of the Legislature, and the Commission has the implied power,' in the absence of statutory regulation,' to formulate rules of procedure for hearing of applications by -the railroad for permission to abandon an agency.

      Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    reversed.

      James B. McDonough, for appellant.

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

On the 7th of October, 1926, the Bailroad Commission of Arkansas issued the following order:

‘ ‘ There came on for hearing before the Commission the application and amended application of the Kansas City Southern Bailway Company, asking that the Commission issue an order to permit the Kansas City Southern Bailway Company to discontinue its agent at Bavanna, Arkansas, and, after due consideration of said application and all facts in the premises, doth find: That, by a special act of the General Assembly of the State of Arkansas, approved February 23,1905, the Kansas City Southern Bailway Company, under the provisions of said act, was required to erect a depot at Bavanna and keep an agent therein, .to supply tickets, to receive freight for shipment, issue bills of lading, and to attend to all other services required of a station agent. The Commission holds that it does not possess the power to-authorize the Kansas City Southern Bailway Company to discontinue its agent at Bavanna, Arkansas, so long as the special act of the Legislature establishing the agent at Bavanna is in force. It is therefore by the Commission on tins day ordered that the original and the amended application of the Kansas City Southern Bail-way Company, for authority to discontinue its agent at Bavanna, Arkansas, be and it is hereby dismissed from the docket of the Commission for the want of jurisdiction. ’ ’

The railroad company appealed to the circuit court, and, on the 27th of January, 1927, the circuit court entered a judgment which recites, in part, as follows:

“This cause was submitted to this court upon the record duly certified to by the Bailroad Commission of Arkansas, as required by law, and upon briefs of counsel. The court, being well and sufficiently a'dvised in the premises, finds that this cause must he affirmed, for the reason that the Arkansas Bailroad Commission did not have .jurisdiction, because no petition signed by fifteen bona fide citizens residing in the territory at the station of Bavanna, Miller County, Arkansas, was filed for the discontinuance of the agency at that place. This court holds that, under § 1638 of Crawford & Moses’ Digest, the Arkansas Bailroad Commission is without jurisdiction, unless a petition for the relief prayed for is signed by at least fifteen bona fide citizens residing in the territory sought to be affected by the petitioners. It is therefore by the court ordered, adjudged and considered that the decision of the Arkansas Bailroad Commission be affirmed and the case herein dismissed.”

Prom the above judgment the railroad companies duly prosecute this appeal.

It will be observed that the only question for decision is whether or not the Bailroad Commission has jurisdiction to entertain the petition of appellants to discontinue their station agent at the town of Bavanna, Arkansas. The Bailroad Commission held that it had no power to discontinue, because of the special act of the Legislature of 1905 requiring the maintenance of an agency at Bavanna, while the circuit court held that the Bailroad Commission had no jurisdiction because no petition was filed signed by fifteen bona fide citizens residing in the territory at the station of Bavanna for a discontinuance of the agency at that place. Both decisions are wrong.

1. Act 149 of the Acts of 1907, as amended by No. 338 of that session, provides, in part, as follows:

“Section 1. That the Bailroad Commission of Arkansas be, and the same is, hereby authorized, empowered and required to hear and consider all petitions for train service, depots, stations, ispurs, sidetracks, platforms, and the establishment, enlargement, equipment and dis-continuance of the same along and upon the right-of-way of any railroad in this State; provided, said petition shall be signed by at least fifteen bona fide citizens residing in the territory sought to be affected.”

Section 2 requires tlie Railroad Commission, within thirty days after filing of the petition, to make a personal inspection of the conditions complained of and to investigate the objects sought to be accomplished by the petitioners, and gives the Commission power to hear testimony to determine the amount, degree and character of construction,, equipment, changes, enlargements of stations and depots which should be supplied by said railroad, railroad company, its lessees or operator. Section 2 concludes as follows: “And shall have the power and authority to require a reasonable train service for each and every railroad station and depot within the State of Arkansas, and their* finding shall be binding upon all such railroads within the State of Arkansas.”

Section 3 provides for the filing of the findings and decrees of the Commission with the Secretary of State, Attorney General, and circuit clerk of the county where the decree is granted, and for notice upon the defendant railroad company of such decree by delivery of a copy of its findings and decrees to the nearest local station agent, and to the superintendent, general manager, or other operator of such railroad or railroad company.

The 4th section provides foi; the penalty wherein a railroad company shall refuse to comply with the findings and decrees and mandates of the Railroad Commission, and provides that no order for doing anything under the act shall be made by the Commission until all parties concerned shall have received ten days’ notice of such proposed change.

The 5th section provides that the act shall not repeal any other act now in force or limit or curtail the powers and duties of the Railroad Commission of the State of Arkansas. See §§ 1638-.1641, inclusive, C. & M. Digest.

In the absence of a statute, railroad corporations authorized to do business in this State would have plenary power over the matters set forth in the above statute. A consideration of all of its provisions convinces us that it was not the purpose of the Legislature to take away or to curtail these powers, except in so far as railroad companies might attempt to exercise them in a manner detrimental to the public they serve. The only justification for the lawmaking body or the courts to place limitations or restraints upon the rights and powers of railroad companies under their charters is because such corporations may, in the absence of such limitations or restraints, in some manner seek to promote their own private and financial interests to the detriment of the public. The administrative functions of these corporations in the matters .specified in the statute are peculiarly within the power and discretion of their managing boards, and it was not the purpose of the Legislature to interfere with their power and discretion to serve as best they may the financial interests of these corporations and their stockholders, so long as, by so doing, they do not conflict with the duty which they owe the public in such matters.

In Northern Pacific Ry. Co. v. Washington Territory, 142 U. S. 492, 12 S. Ct. 283, 35 L. ed. 1092, the Supreme Court of the United Stales, among other things, said:

“The location of stations and warehouses for receiving and delivering passengers and freight involves a comprehensive view of the interests of the public as well as of the corporation and its stockholders, and a consideration of many circumstances concerning the amount of population and business at, or near, or within convenient access to one point or another, which are more appropriate to be determined by the directors, or, in case of abuse of their discretion, by the Legislature, or by administrative boards intrusted by the Legislature with that duty, than by the ordinary judicial tribunals.”

See also 2 Elliott on Railroads, § 739, and notes 73 and 74.

It was with a view of conserving the interests of the public that the Legislature provided, in the above statute, that at least fifteen bona ficle citizens residing in the territory affected should petition for the matters therein specified when petitioners conceived that the public interest would be subserved by the granting of the prayer of their petition. Such petitions are required and are essential to the jurisdiction of the Railroad Commission to consider and adjudge of any of the matters specified in the statute and set forth in the petition where the interest of the public is involved.

In St. Louis I. M., etc., Ry. Co. v. Belamy, 113 Ark. 384, at page 394, 169 S. W. 322, 324 (L. R. A. 1915D, 91), we said:

“A petition for the establishment of stations, depots, etc., or the discontinuance of the same, at one point and a relocation and establishment thereof at another, is necessary to give the Commission jurisdiction of the subject-matter.” See also St. Louis-S. F. Ry. Co. v. State, 120 Ark. 182, 179 S. W. 342, Ann. Cas. 1917C, 873, where we again held that a petition, as required by the act, “is essential to give the Commission jurisdiction to act upon the matters mentioned in the act quoted from. ” We also said' in that case, at page 187 (179 S. W. 343): “Evidently the Legislature did not intend to burden the Railroad Commission with the consideration of petitions for the things authorized to be petitioned for unless at least fifteen bona fide citizens residing in the locality to be affected were sufficiently interested to petition therefor.” These were oases in which petitions were filed seeking relief for the public against the railroad companies under the statute, and they clearly hold that, where the interests of the public are affected in the matters set forth in the statute, a petition as therein specified is essential to give the Railroad Commission jurisdiction. But the statute does not require such a petition, and same; is not essential, when the railroad itself is seeking relief through the Railroad Commission from a burden which involves, as it in substance alleges, great financial loss to it, while the removal of such burden would not in any manner injure the public it serves at its station at Ravanna. The petition specified and required by the statute, where the public is to be affected as against the railroad, is not essential to give the Railroad Commission jurisdiction to grant relief to the railroad itself, which it asserts will not in any manner interfere with the service it renders the public at that station.

2. This brings us to a consideration of the quest ion as to whether or not the Eailroad Commission had jurisdiction to discontinue the agency at Eavanna, notwithstanding the act of 1905 creating such agency. Act No. 50 of the Acts of 1905 requires the Kansas City Southern Eailway Company to erect a depot at Eavanna of suitable convenience for the traveling public, and to provide a room at such station for the protection and storage of freight, and that this railroad' company shall keep an agent at Eavanna to sell tickets, receive freight for shipment, issue bills of lading, and to attend to all services required of a station agent. Act No. 571 of the General Acts of 1919, page 411, created an Arkansas Corporation Commission, and gave it jurisdiction over common carriers, railroads, etc. That act abolished the Eailroad Commission, and transferred fall of its powers and duties to the Corporation Commission. Section 6 of that act, among other things, provides: “Every person, firm or corporation engaged in a public service business in this State shall establish -and maintain adequate and suitable facilities, etc., * * * and shall perform such services in respect thereto as shall be reasonably safe and ’sufficient for the security and convenience of the public,” etc. Section 10 of that act gives the Corporation Commission power, among other things, “to make any suitable order that the Commission may determine reasonably necessary to accommodate and transport the traffic, passenger or freight, transported or offered for transportation.” Act No. 124 of the Acts of 1921, General Acts, page 177, abolished the Corporation Commission and transferred all of its proper functions to the Arkansas Eailroad Commission. By act No. 124 of the Acts of 1921 it is provided that the jurisdiction of the Eailroad Commission “shall extend to and include all matters pertaining to the regulation and operation of all common carriers, railroads,” etc., and “(b) all other jurisdictions, if any, possessed by the Arkansas Eailroad Commission under the laws of Arkansas in force on March 31, 1919.” On March 31, 1919, the Arkansas Corporation Commission possessed all the jurisdiction that had been before possessed by the Arkansas Railroad Commission. Amendment No. 2 to the Constitution was declared adopted January 13, 1899. That amendment, in substance, provides that the General Assembly “shall pass laws to correct abuses and prevent unjust discriminations and excessive charges b}^ railroads for transporting passengers, freight,” etc., and “shall provide for the creation of such offices and commissions and vest in them such authority as shall be necessary to- carry into effect the powers hereby conferred.” The General Assembly, on March 11, 1899, created a Railroad Commission. An examination of that act will discover that the powers conferred upon the Railroad Commission by the act creating it had reference to the regulation of railroad freight and passenger traffic in the State and the prevention of extortions and unjust discriminations therein.

The General Assemblies of 1901 and 1903 passed acts pertaining only to the powers of the Railroad Commission over tariff rates and the regulation thereof. Acts No. 149 and No. 338 of 1907, which are of the same purport, conferred upon the Railroad Commission additional powers to those of merely regulating* tariff charges and discriminations therein, and provided as set forth in act 149 as amended by act 338 of the Acts of 1907 as set. forth above. The next act affecting the jurisdiction and powers of the Railroad Commission was that of April 1, 1919 (act No. 571), abolishing the Railroad Commission and creating* the Corporation Commission and conferring upon it all the powers and duties that were at that time exercised by the Railroad Commission. The next act was No. 124, approved February 15, 1921, supra, abolishing the Corporation Commission, creating, or re-creating, the Railroad Commission, and transferring all the proper functions of the Corporation Commission back to the Railroad Commission.

Now, before the passage of the General Acts of 1907, supra, conferring upon the Railroad Commission the power, and requiring it to hear all petitions for train service, depots, stations, etc., there had been many special acts passed such as the act of 1905 under consideration, and kindred acts, such as those requiring railroads to open and maintain depots, stations, to stop trains- at certain points and to keep and maintain agencies, etc. Many of Ihe acts of this character were passed during the session of 1905, when the act under review was passed, and many such acts also were passed during the session of 1907, which conferred upon the Bailroad Commission jurisdiction over such matters. The purpose of Amendment No. 2 to the Constitution was to confer upon the Legislature the power to create offices or commissions and to confer -upon such offices or commissions the power to correct abuses and to prevent, unjust discriminations, excessive charges in the matter of transporting freight and passengers, and to confer upon them such power as the Legislature .itself had in the matters pertaining to trains, depots, stations, etc., as set forth in the act of 1907. It was doubtless conceived by the framers of tho amendment and by the people in the adoption thereof, that such an administrative body as a Bailroad Commission, composed of few members, constituted and given jurisdiction over such matters, could more efficiently serve the public as -well as the common carriers than the G-eneral Assembly itself could- serve them. Therefore the Legislature was given power to create such a commission 'and to delegate to it jurisdiction over the matters mentioned.

In Helena Water Co. v. Helena, 140 Ark. 597, at page 605, 216 S. W. 26, 28, speaking of Amendment No. 2 to the 'Constitution, we said: “The argument in this case is that the amendment to the Constitution restricts the poivers of any office or commission created thereunder to those therein enumerated, viz., to the regulation of ‘excessive charges by railroads, canals and turnpike companies,’ and that it is beyond the authority of the Legislature to impose any further duties on any offices or commissions created for that purpose.” In answer to this argument we held, in effect, that it was within the power of the Legislature to create either a railroad commission or a corporation commission to carry out the powers enumerated in the amendment to the Constitution and other powers. We further said: “It is, in other words, the power to correct abuses by transportation corporations which is conferred by the Constitution, and not the' creation of any particular offices or commissions, and the Legislature could, in the first instance, have created the present commission, and conferred upon it the enumerated powers and others.”

The act of 1907 is sufficiently comprehensive in its terms to give jurisdiction to the Railroad Commission to abolish agencies that have been created by special acts of the Legislature as well as to establish agencies where the Commission finds it necessary to do so. But, if we are mistaken in this conclusion, certainly the Legislature, in the subsequent acts of 1919 and 1921, supra, enlarged and extended the jurisdiction of the Corporation Commission, and the Railroad Commission to which the Corporation Commission’s powers were transferred, so as to necessarily include, by implication at least, the power to abolish an agency as well as to establish one. This power is embraced in §§ 6 and 10 of act No. 571 of the Acts of 1919, creating the Corporation Commission and conferring .upon it the power to establish and maintain adequate and' suitable facilities, etc., and also, in § 10, “to make any suitable order that the Commission may determine reasonably necessary to accommodate and transport the traffic, passenger or freight,” etc. It is also conferred- upon the Railroad Commission by act No. 124, transferring to it 'all proper functions of the Corporation Commission and giving the Railroad Commission -jurisdiction over all matters pertaining to the regulation and operation of all common carriers, railroads, etc. A consideration of Amendment No. 2 to our Constitution and of the various acts passed since its adoption creating the Railroad Commission and conferring upon it the broad general powers prescribed in these several acts, convinces ns that the Bailroad Commission has jurisdiction over the subject-matter of abolishing railroad agencies as well as creating the same, and, by virtue of the powers expressly conferred upon it over the matters mentioned, it has the implied power, in the absence of a statutory regulation, to formulate rules of procedure for the hearing of applications on the part of the railroad company to be permitted to abandon an agency, or to correct any abuses to which the railroad companies themselves are subjected. These rules must provide for notice to be given the public and all parties interested in the subject-matter.

The Legislature, by vesting the Bailroad Commission with these broad general powers over all matters pertaining to the regulation land operation of all common carriers, railroads, etc., and especially pertaining to the matters mentioned in Acts of 1907, relating to train service, depots, stations, etc., did not intend to repeal the 'special acts that had been passed, such as the act of 1905 under review, relating to the subject-matters specified in the Acts of 1907. 'But it was the purpose of the General Assembly, in enacting these statutes, notwithstanding these special acts, to confer upon the Bail-road Commission the power, if the circumstances' justified, to consider all matters over which the Bailroad Commission is given jurisdiction under the general laws of Arkansas in force on March 31, 1919, which included the jurisdiction over the matters specifically mentioned in act No. 149 of the Acts of 1907, as amended by act No. 338 of that session and the enlarged jurisdiction conferred by the latter acts of 1919 and 1924, supra. The comprehensive jurisdiction vested in the Bailroad Commission by act No. 124, supra, which, as above set forth, extends to and includes all matters pertaining to the regulation and operation of trains and all other jurisdictions possessed by the Arkansas Bailroad Commission under the Constitution and laws of Arkansas in force on March 31, 1919, unquestionably confers jurisdiction on the Bailroad Commission to correct, all abuses that then existed, or might in the future obtain, by virtue of any act of the Legislature covering the special matters designated by act No. 149, as amended by act 338 of the Acts of 1907, and all other matters pertaining to the regulation of all common carriers, railroads, etc., set forth in act 124 of the Acts of 1921. Such sweeping' jurisdiction necessarily embraces the power, at the instance of a railway company, to discontinue an agency at a station where justified by the circumstances, although created by special act of the Legislature.

Our conclusion therefore is that the Railroad Commission had jurisdiction to entertain the petition of appellants for permission to abolish the agency at Ravanna, and that the Commission should provide for notice to be given of the pendency of the petition and an opportundy for all parties interested to appear and protest the application, and an opportunity for petitioner and protestants to take proof and to be heard on their respective contentions. Prom the final order entered by the Railroad Commission, after such hearing, the statute (act No. 124, § 20) makes provision for an appeal to the circuit court, and (§21 of act 124) makes provision for an appeal by any party aggrieved from the circuit court to the Supreme Court.

The circuit court therefore erred in affirming the decision of the Railroad Commission and in dismissing the application or petition of the appellants asking for authority to discontinue the agency at 'RaVanna. The judgment is reversed, and the cause is remanded with directions to the trial court to enter a judgment setting aside the order of the Railroad Commission denying the appellant’s petition, and to certify its judgment to the Railroad Commission for further proceedings.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Hemm v. Goodwin.
    Opinion delivered October 31, 1927.
    1. Vendor and purchaser — right to enforce vendor’s lien. — An owner of land may contract in his conveyances to two different grantees for each of them, as a part of a consideration of the lands he separately conveyed to them, to pay any part or all of a prior mortgage upon said lands, and, upon the payment of the entire mortgage debt by one of his grantees, may enforce. a vendor’s equitable lien against the land sold to the other grantee for the proportion of the mortgage debt he agreed to pay as a part of the purchase money for the land he bought.
    2. Vendor and purchaser — equitable vendor’s lien. — An equitable vendor’s lien arises by operation of law out of a contract for the payment of purchase money.
    3. Limitation op actions — enforcement of equitable vendor’s lien. — As regards the plea of the statute of limitations, a vendor’s right to enforce an equitable lien for the amount which the purchaser assumed on a mortgage as against the successor in title of such purchaser did not accrue until'the successor in title of the purchaser of another tract, covered by the same mortgage, who had assumed full payment of the mortgage, had paid same.
    4. Taxation: — lien for taxes paid. — A vendor having an equitable lien had a right to pay the taxes to protect his interest, and was entitled to a lien on the land for the amount he paid to redeem it from the tax sale.
    5. Interest — amount assumed on mortgage. — Where the purchaser of a 40-aere tract assumed $350 of a $500 mortgage on the land, and the mortgage was paid by the purchaser of another tract covered by the same mortgage, the vendor was entitled to interest only on $350, as against the successor in title of the 40-acre tract, from the time the mortgage was paid and the right of action accrued.
    . Appeal from Sevier Chancery Court; C. E. Johnson. Chancellor;
    reversed in part.

      Lake, Lake é Carlton, for appellant.

      Steel S Edivards, for appellee.
   Humphreys, J.

The purpose of this suit is to enforce an alleged equitable vendor’s lien for $350 and accumulated interest against a certain forty-acre tract of land in Sevier County, and the additional sum of $40.60 and interest, which was paid by appellee on November 13,1922, to redeem said forty-acre tract of land from forfeiture to the State.

Appellants filed an answer, denying* the right of appellee to an equitable lien upon said land for either amount. Appellants also interposed the defenses of the statute of frauds and limitations.

The cause was submitted to the chancery court of Sevier County upon the issues joined and the testimony introduced by the parties, which resulted in a decree in favor of appellee for $350 and interest at the rate of 6 per cent, per annum from June, 29,1916, and for $40.60 at the rate of 6 per cent, per annum from the 13th day of November, 1922, and the establishment of a vendor’s lien for said amounts, and order of sale of said lands to satisfy same. From that decree an appeal has been duly prosecuted to this court.

Appellee owned 110 acres of land in said county, which he mortgaged to the Conservative Loan Company on June 29,1916,-payable eight years after date, and bearing interest at the rate of 6 per -cent, per annum from date until paid. On the 3d day of August, 1917, appellee and wife executed and delivered to Z. Baldwin their warranty deed, conveying said forty-acre tract to Z. Baldwin in consideration of $300 cash in hand paid and the assumption of $350 of the indebtedness to the Conservative Loan Company, which conveyance, as well- as the mortgage aforesaid, was recorded at the time of the execution and delivery in proper record books in said county. On October 7,1918, Z. Baldwin executed and delivered to "W. O. Hobbs his warranty deed for said forty-acre tract, with lien retained, in consideration of $900, $200 in cash, notes for $350, and the assumption by said Hobbs of $350 of the indebtedness to the Conservative Loan Company, which deed was recorded shortly after the execution thereof in the proper record book in said county. On December 30, 1919, W. O. Hobbs conveyed by warranty deed said forty-acre tract to B. F. Coyle for a consideration of $1,400, $500 cash and notes payable to Hobbs for $550 and the assumption by Coyle of $350 of the indebtedness to the Conservative Loan Company, which deed was filed for record in the proper record book in said county a short time after the execution and delivery of same. The notes executed by Coyle to Hobbs were not paid at maturity, Coyle having died intestate. Hobbs instituted suit in the Sevier Chancery Court against the heirs of Coyle to foreclose the amounts due him, evidenced by notes which Coyle had given him, and, at the October term, 1922, of said court a decree was entered in favor of Hobbs, and the land ordered sold in satisfaction of the indebtedness. On October 28, 1922, Hobbs assigned said judgment to appellants without recourse on him. The land was sold by the commissioner, and appellants became the purchasers of same for the amount of judgment assigned to them by Hobbs. The sale was reported to the court at the October, 1923, term, at which time same was approved and a deed executed and acknowledged by the commissioner conveying said land to appellants.

On January 9, 1918, appellee and his wife executed and delivered their warranty, deed to Mary N. Thompson, conveying the other seventy acres described in the mortgage to the Conservative Loan Company in consideration of $1,400, $400 cash, $500 evidenced by notes payable to plaintiff, and the grantee assuming the full amount of the $500 note and mortgage to the Conservative Loan Company, which deed was immediately filed for record in said county in the proper record book.

On August 2, 1918, Mary N. Thompson and J. C. Thompson, her husband, executed and delivered to C. S. Tebbs their warranty deed, conveying said seventy-acre tract in consideration of $2,000, $1,000 in cash, one' noté for $500 payable to Mary N. Thompson, and the assumption of the indebtedness to the Conservative Loan Company, which deed was immediately filed for record in said county in the proper record book.

In the year 1924 C. S. Tebbs sold the seventy-acre tract of land to J. S. Parson, who assumed and agreed to pay the $500 mortgage to the Conservative Loan Company as a part of the consideration for the land. On June 2,1924, Parsons paid $500 to the Conservative Loan Company. The release deed described and released the entire 110-acre tract from the Conservative Loan Company mortgage. After Parsons paid the $500 mortgage and obtained a release deed for the entire 110-acre tract of land, appellants refused to pay the $350 which the grantors in their chain of title had assumed and agreed to pay, and also refused to refund to appellee taxes in the sum of $40.60 which appellee was forced to pay to redeem the forty-acre tract from the sale of taxes for the years 1920 and 1921:

Appellants contend for a reversal of the decree upon the theory that the lien against the land, including the lien on the forty acres purchased by them, was discharged and extinguished by payment of the $500 mortgage by Parsons to the Conservative Loan Company. This payment did discharge and extinguish the mortgage lien for $500, but did not discharge and extinguish appellee’s right to the balance of his purchase money of $350, which the grantors in the chain of appellant’s title had contracted to pay for the forty-acre tract by the assumption of $350 of the $500 mortgage given by appellee to the Conservative Loan Company. Appellants purchased the forty-acre tract under a junior mortgage lien in favor of C. S. Tebbs, there being upon the forty-acre tract an equitable vendor’s lien in favor of appellee by virtue of the assumption by appellants ’ predecessors in title of $350 of the Conservative Loan Company’s mortgage even after the loan company’s mortgage was paid by Parsons. Otherwise appellee would have received the initial cash payment of $300 for the forty-acre tract, whereas he sold it for $650, $300 cash and the assumption by Baldwin and the other grantors in the chain of appellants’ title of $350 of the Conservative Loan Company’s mortgage. There can be no question in this case that appellee sold the forty-acre tract for $650 to Baldwin and only received $350 of the purchase money, and that appellants ’ predecessors in title assumed the payment of the $350 in their respective deeds by agreeing to pay $350 of the Conservative Loan Company’s mortgage as a part of the consideration for said tract.

We think it cannot be gainsaid that an owner of land may contract in his conveyances to two different grantees for each of them, as a part of the consideration of the lands he separately conveyed to them, to pay any part or all of a prior mortgage upon said lands, and, upon the payment of the entire mortgage debt by one of his grantees, to enforce a vendor’s equitable lien against the land sold to the other grantee for the proportion of the mortgage debt he agreed to pay as a part of the purchase money for the land he bought. One who has acquired the estate of another by purchase should not be allowed to keep it without paying the entire contract price. An equitable vendor’s lien 'arises by operation of law out of the contract for the payment of the purchase money. Beard v. Bank of Osceola, 126 Ark. 420, 190 S. W. 849.

Tn this view of the law the plea of the statute of frauds has no application to the facts in the case. This defense was interposed to meet the allegation and proof that appellee bad an oral agreement with Baldwin to pay him the $350 in case the purchasers of the seventy acres of the tract should pay the entire mortgage debt to the Conservative Loan Company. Appellee was entitled to enforce a lien for the unpaid purchase price of the forty-acre tract by virtue of the provisions of the deeds of appellants ’ predecessors in title, irrespective of the oral agreement.

Under the law thus announced as applicable to the facts in the case, the plea of the statute of limitations must fall, as appellee’s right to enforce his lien did not accrue until Parsons paid the entire mortgage indebtedness to the Conservative Loan Company. Parsons did not pay the mortgage debt and obtain the release deed until June 2,1924, and appellee instituted this suit before his action was brought.

Appellants also contend for a reversal of the decree because the trial court subrogated appellee to the State’s lien for the taxes paid. Appellee had an interest in the land, and had a right to pay the taxes to protect his interest. He was not a volunteer in the payment of the taxes, hence is entitled to a lien on the land for the amount he paid to redeem it from the tax sale.

Appellants also contend that the court erred in allowing appellee interest from the date of the mortgage given by appellee to the Conservative Loan Company. They are correct in this contention. Appellee is only entitled to interest from the time his right of action accrued, and that did not accrue until Parsons paid the entire mortgage indebtedness.

The decree is affirmed except as to the excessive allowance of interest, and as to that is reversed and remanded for correction.


author: Mkhaki-'y, J.

text:
    Bulman Furniture Company v. Schmuck.
    Opinion delivered November 14, 1927.
    1. NEGLIGENCE' — CONTRIBUTORY NEGLIGENCE DEFINED. — Contributory negligence is doing something that a person of ordinary prudence would not do, or failing to do something that a person of ordinary prudence would do under the circumstances.
    2. Negligence — instruction as to contributory negligence. — In a suit for damages resulting from a fire caused by a stove installed by defendant, a requested instruction that, if defendant was negligent in putting a stove too near the wall, but if the plaintiffs, or either of them, knew, or in the exercise of ordinary care should have known and appreciated, the danger of using the stove while it was so placed, and continued to use it, they could not recover, held correct, and the court’s modification that “unless you find that they were assured of its safety by defendant or its agent, and plaintiffs relied on such assurance,” held error.
    3. Negligence — contributory negligence — jury question. — In a suit for damages resulting from a* fire caused by a stove installed by defendant, the question whether plaintiffs, who believed the stove was too near the wall, were guilty of contributory negligence in using the stove, relying on statement of defendant that the stove was safe to use in this position, held for the jury.
    4. Trial — conflicting instructions. — In a suit for damages result- ■ ing from a fire caused by a stove installed by defendant, an instruction in effect that plaintiffs had no right to rely on advice of defendant that the stove was not too near the wall, held conflicting with another instruction telling the jury that the plaintiffs could not recover under such circumstances, unless the plaintiffs were assured of the safety of the stove by defendant, -and plaintiffs relied on such assurance.
    5. Trial — jury question.- — Wherever a question is such that fair-minded men might draw different conclusions, it becomes the duty of the court to submit the question to the jury.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judg’e;
    reversed.

      Doionie & Schoggen, for appellant.

      W. A. Boyd and Emerson, Donham & Eulh, for appellee.
   Mkhaki-'y, J.

The appellees, plaintiffs below, who are husband and wife, filed suit in the Pulaski Circuit Court against the appellant, Bulman Furniture Company, and alleged that they were the owners of lots 13 and 14, block 14, Pfeifer’s Addition to the city of Little Rock, Pulaski County, Arkansas, and also owned a dwelling house.

They purchased certain furniture and household goods from the appellant, among which was a gas stove. Defendant installed the stove in the kitchen of said dwelling, and it is alleged that the employee's of the Bulman Company negligently and .carelessly placed the stove and the pipe used in connection therewith too near to the Avail of said kitchen; that plaintiffs objected, when the servant Avas placing the pipe, but the employee insisted that same Avas not too close, and that it Avould be entirely safe. Plaintiffs thereafter called Mr. Bulman, complained to him, and he advised that he Avould give the matter prompt attention by a competent servant and employee, and, the next day, sent one of its servant's to said residence, and this servant stated also that the pipe was not too close, but that he would move it further from the Avail, but Avouid not do so until the day following, and that, in the meantime, it would be perfectly safe for plaintiffs to use said stove. That thereafter the walls became ignited on account of the negligence and carelessness of appellant’s employees in placing the pipe too close to the Avails, and said dwelling, furniture and clothing were destroyed by fire. It is alleged that the value of the building- Avas $1,500 and the furniture and clothing Avere worth $1,700. They asked 'judgment therefore for $3,200.

In response to a motion to make the complaint more definite and certain, appellees filed an amendment to their complaint, stating that appellees Avere husband and wife and that they owned the house and personal property jointly. That an itemized statement of the furniture was attached. That they Avere unable to itemize their clothing, and attached a list showing other furniture Avhich had been purchased from the appellant, a part of the purchase price of which had not been paid.

Defendants thereafter filed an answer, denying all the material allegations of the complaint.

There AA7as a trial on October 25, 1926, and a verdict against, the appellant for $1,733. Motion for new trial w-as filed, which Avas by the court overruled, exceptions Avere saved, and an appeal taken to this court.

Mrs. Schmuck, one of the appellees, testified that she was the AAdfe of A. O. Schmuck; that she and her husband Avere living together in the house at 5314 A Street at the time of the fire; that her brother-in-law bought the property from Thomas, and theAr bought it from him: that she put about $400, which she received from her father’s estate, into the property; that she and her husband together owned the furniture and clothing, some of which furniture was purchased from the defendant; that they oAve a balance on this; that they had bought a gas stove from the appellant for $55; that the stove was set up by appellant’s representatives; that the stove Avas placed in the kitchen; it was set so near the wall that you could barely get your hand betAveen the oven part of the stove and the wall; that there was no vent-pipe on the stove; there was no fine in the kitchen; there Avas an opening on the stoAm back of the OAren, which was placed so near the aauJI you could just put your hand 'between it and tile wall. A Mr. Matthews set up the stove; Avitness asked him if he did not think the stove was too near the Avail, and he said n o, it AArould give her more room in the kitchen. He said it Avould be safe. Witness had had no experience in setting up gas stoves, and relied on liis judgment as to whether it was too close or not. Witness afterwards went to see Mr. Bulman, and reported the stove being too close to the wall, and told him, in her opinion, it was too close, and he said he would send a man out to see about it. The man came next day, but said he didn’t have time to change it that day. He told witness he would come back later and change it. The house finally caught fire from back of the oven. The representative of appellant had told her it was all right, and she had to cook.

The lire 'occurred about seven or seven-thirty in the morning; the fire was right at the back of the oven. When witness first discovered it, it -was just a little blaze, and she first went to get a bucket from the garage to put it out, and the whole roof was on fire. The kitchen roof was of tar paper. The fire department was called, and there was nothing saved. Everything* was ruined. Plaintiffs’ clothing was destroyed, except what they had on. The value of the house was between $1,500 and $1,800. The value of the furniture was $312. The value of the furniture purchased from the Bulman Furniture Company was around $200, and she had a statement from defendant showing a balance of $133. She talked to Mr. Bulman, and he said he did not figure he had anything to do with it. Witness told him he ought to compromise with her, as she lost all her furniture she had gotten from her father and that her husband had worked for. This was a couple of days after the house burned.

Witness and her husband bought the property jointly; they got no deed to it; it wasn’t paid for; they had a contract; witness thinks the contract was not made to her and her husband, but in his name; it was just a contract between her husband and his brother, W. P. Schmuek; that they had no title to the real estate. They had an agreement that, when they paid so much, the title would be conveyed to her husband. Witness had an interest in it because she put money in it that she had got from her father. Title was supposed to be in both names, but the contract was just made to the husband. Witness does not know how much had been paid on the place.

Witness asked the representative if the stove was not too close to the wall, and he said it was not. . She still thought it was. Witness had had experience using gas stoves and knew how to use them. She was in the bedroom on the morning of the fire, and her husband had lighted the fire, and they were both dressing when the house caught fire. The stove was lighted about 6:30 or 7 o ’clock. Witness and her husband used the kitchen as a dining-room and kitchen combined, so that it was necessary to warm up the kitchen before serving breakfast. It was a cold morning, and witness had lighted the kitchen stove ahead of time in order to warm up the kitchen. The first witness knew of the fire was when she smelled the smoke. The stove had been used hardly a month. It had been used quite a little while, and used in the condition in which it was installed. It looked too close to the wall to witness, and she thought it was dangerous. The stove was right against the wall. You could put your hand between it and the beaver-board wall; witness left the stove burning in that condition. The man told her it -was safe, and she did not know anything about it. Her husband was in the house when it burned. There was no vent-pipe on the stove, and, when witness got out of the house, she noticed the whole top of the roof was on fire. She does not know how long it took her to get from the kitchen to the garage, but doesn’t suppose it was very long. The garage was right on the back of the lot; the whole top of the roof was on fire before witness went out there. The items of furniture listed in Exhibit A total $312; witness bought that furniture herself; witness ’ husband assisted in paying for it; witness and her husband were married nine years; everything in the house was ruined by the fire. There was in the house the clothing of witness and her husband, and the bed-clothing, quilts and mattresses. "Witness had another gas stove, listed at $25, which was not connected. Witness and her husband just lived in the two rooms, and used the kitchen range for heating as well as cooking; witness had no servant, but did her own cooking; witness used the stove from the time it was bought until the house burned. Witness had been married nine years, and has used gas stoves most of the time.

Mrs. Mabel Beadle was present when the gas stove was set up, and corroborates the statements of Mrs. Schmuek as to what the man who put it up said, and as to how close the stove was to the wall. Mrs.-.Mabel Enabman was at the home of plaintiffs when the man came to see about the stove, and he said he did not have time to disconnect it and connect it again, but that he would come back. Witness did not know why the stove was to be disconnected.

A. C. Schmuek, one of the appellees, testified that he had helped his brother build a part of the house; his brother bought the house and built three rooms to it; witness assisted him, and afterwards contracted to buy the house; wife of the witness paid a part of the purchase price. She paid $350 and then some monthly installments; she obtained this money from the estate of her father. The value of the house was $1,800. There were four rooms, a sleeping porch and bathroom; it was a frame house of good material; the inside of the kitchen walls were beaver-board; bea-ver-board is a kind of cardboard composition. Witness saw the stove after it was connected; it was nearly up against the wall; the opening for the vent-pipe came out of the back of the stove, with a short elbow; that elbow had an offset for .the pipe, and set back about half an inch, and that elbow was placed right against the wall; witness supposes the collar was about three-quarters of an inch from the wall. If vent-pipe had been placed on stove it would sit straight up from this elbow; vent-pipe would have extended up and not out towards the wall; this opening or elbow was against the wall and behind the oven; the fire was on the 1st day of December or the 30th day of November. Witness lighted the stove about seven o ’clock in the morning, and went straight back to the bedroom to put on his clothes; he noticed the smoke before he got his clothes on. When he got out there, there was a little blaze behind the stove; witness was trying to put the fire out, and told his wife to get a bucket, and when she got outside she hollered about it being on fire outside on the roof; witness told her there was no use then to get a bucket; witness ran out, and fire was all over the roof; witness lost two suits of clothes; thinks' clothes he lost were worth $1.60; doesn’t know the value of his wife’s clothes.

Witness is a sheet metal worker, and has had experience in connecting up vent-pipes on gas stoves; has been using gas stoves ever since there has been gas in Little Rock.

In the wall there was tar paper. Composition wall was of inflammable material. • The stove was so set that elbow was right against the beaver-board. Witness thought it was dangerous, but was told by one of the representatives that it was perfectly safe; that he connected them that way, and they used the stove. He went ahead and used it, although he thought it was dangerous. The wall began to look a little sooty back there where the pipe was. It looked charred back there, and his wife stopped using the stove for'two or three days; the man said he would come back, and didn’t, and then it got cold and they used the stove. Witness thought it was too close to the wall, and he noticed the scorching of the wall. What the .man said did not necessarily satisfy witness. He said he was coming back and change it.

Mrs. Sarah E. Schmuck, being recalled, testified that her clothing alone was worth $150 and the bedclothing $50.

C. L. Harlan, a building contractor, testified that the value of the house was $1,768.50.

There was some conflict between the testimony as given by the plaintiffs and the testimony of the witnesses for defendants, but we deem it unnecessary to set out the testimony at length. The testimony of the plaintiffs shows that the stove was verv close to the wall, and that, after using it, they noticed that the wail ■was scorched, and that appellant’s representatives said that it was safe, and also said that they would fix it.

Tlie appellant coni end's that the court erred in giving and refusing instructions.

Instruction No. 2, requested by the plaintiff, and which the court gave, reads as follows:

“You are instructed that, although you find from the evidence in this cause that plaintiffs at first believed the stove was so near to the wall as to be dangerous if used, yet, if you find that plaintiffs relied upon the statements, if any, of the defendant, or its servants, that it was safe to use the stove in its position,' then plaintiffs would not be guilty of contributory negligence by using it. ’ ’

We do .not think this instruction correctly states the law. If plaintiffs believed the stove was so near the wall as to be dangerous, the}’- would certainly have no right to rely on the statement of defendant, or its servants, unless they believed the statements to be true, This instruction tells them that, if they believed it was dangerous and yet relied on the statements of the defendant’s servants, they would not be guilty of contributory negligence. If the plaintiffs believed it to be unsafe-, but relied -on the statements of defendant’¡s servants, it would be a question for the jury to -determine whether that was contributory negligence. The court could not tell them as a matter of law that, they would not be guilty of contributory negligence.

Contributory negligence is the doing of something that a person of ordinary prudence would not do or the failure to do something that a person of ordinary prudence would do under the circumstances. Whether a person of ordinary prudence would' continue to use a stove, when he believed it unsafe, because the representative of the appellant told him it was safe, we think, would be a question of fact for the jury. If plaintiffs continued to use the stove, believing it to be unsáfe, because they had been assured by the person' that instálled the stove that it was safe, whether this would be contributory negligence on his part would be a question for the jury, and the court could not as a matter of law state to the jury that, under those circumstances, they would not be guilty of contributory negligence.

Instruction No. 5, requested by the appellant, reads as follows:

"Although you may find from the evidence in this case that the defendant was negligent in putting the stove too close to the wall, yet, if you further find from the evidence that plaintiffs or either of them knew, or, in the exercise of ordinary care, should have known and appreciated the danger of using the stove while it was so placed, and used or continued to use it, then they cannot recover in this case, and your verdict will be for the defendant.”

The court refused to give the above instruction as requested, but added to it the following: "Unless you find that they were assured of its safety by defendant or its agent, and plaintiffs relied on such assurance.”

The instruction was correct as requested, and it was error to modify it as above. If the plaintiffs knew, or, by the exercise of care, should have known -and appreciated the danger, then they could not recover. The fact that they were assured of its safety by the defendant and relied on such assurance would not entitle them to recover if they knew of and appreciated the danger. Certainly the most that the plaintiff could have been entitled to, if the instruction had not been given as requested, would have been for the court to tell the jury that, if plaintiffs knew and appreciated the danger,- and were assured by the defendant of its safety, and relied on this, that as to whether or not this conduct on their part would be contributory negligence was a question of fact for the jury to determine. The court should not have told them that this reliance on the statement of the defendant was not contributory negligence. Whether it was-or was not contributory negligence, under •the circumstances, was a question for the jury. The instructions to which we have called attention, we think, are in conflict with the instruction given at the request, of the defendant, instruction number 9. It reads as follows:

“If you find from the evidence that the danger; if any, in the use of the stove as installed, was known or should have been known • to the plaintiffs, you are instructed that they had no right to rely on the advice of the defendant that it was safe, if you find that they were so advised, and to continue to use the stove to .their damage.” See Western Union Tel. Co. v. Baltz, ante p. 167.

And in instruction number 5, as modified by the court, the court tells the jury that they cannot recover under the state of facts set out, “unless you find that they were assured of its safety by defendants or its agents, and plaintiffs relied on such assurance.” Whereas, in instruction number 9, just quoted, the court tells them they had no right to rely on the advice of the defendant.

The undisputed proof in the case shows that the plaintiffs believed that it was dangerous to use the stove as it was installed. They believed it was too close to the wall. Not only this, but, after they had used it a while, they noticed that the wall was charred or scorched. Although the appellant might have assured them that it was safe after the wall became scorched, they did not rely on this assurance entirely, because they themselves say that they quit using it for a while because of this condition. That is, because they concluded that it was unsafe, although the appellants’ agents had told them that it was safe. When the appellees concluded that it was unsafe to use it, notwithstanding the statements of the representatives of appellant, then the most that the plaintiff could be -entitled to in the way of instructions would be for the court to instruct the jury that it was a question of fact for them to decide from the evidence whether the plaintiffs were guilty of contributory negligence, and not tell them as matter of law that, if they relied on, the statements of appellant’s representatives, they would not be guilty of contributory negligence.

Appellees themselves contend that instruction No. 6, given at the request of the defendant, fairly submitted to the jury the question of fact, that is, the question of negligence and contributory negligence. That i's true. This was a correct instruction. And the appellees quoted as follows: ■ “The rule is that, when the facts admitted to be true are clearly proven and not denied, are such that reasonable men might draw different conclusions from them, the question of negligence is one for the jury.” And, as supporting* this rule, appellees cite Dawler v. Citizens’ Gas, etc., Co., 71 W. Va. 417, 76 S. E. 845, Ann. Cas. 1914C 343, and other cases, and also say the same rule is recognized and has been applied by this court, citing a number of recent Arkansas oases.

The appellee is entirely correct. Wherever a question is such that fair-minded men might draw different conclusions, then it becomes the duty of the court to submit the question to the jury.

We therefore hold that it Avas improper to tell the jury as a matter of law that, if the appellees first believed the stove Avas so near the Avail as to be dangerous if used, but that, if the plaintiffs relied on the statements of the defendant’s servants, they were not guilty of contributory negligence. This was a question about which fair-minded men might differ, and it was therefore the court’s duty to submit this question to the jury — the question of contributory negligence. If plaintiffs thought it was dangerous, and defendant’s servants stated that it-was safe, this raised a question of fact for the jury. And it Avas the duty of the court to let them determine from the eAddence whether the plaintiffs Avere guilty of contributory negligence.

If the jury 'should find that the representatives of the defendant were experienced in the -installing and use of sto\7es of this character, and the plaintiffs did not appreciate the danger, and should find that a person of ordinary prudence would have acted as plaintiffs did under the circumstances, then they Avould find, of course, that the plaintiffs Avere not guilty of contributory negligence.

For the errors indicated the cause is reArersed, and remanded for ucav trial.


author: Wood, J.

text:
    Withem v. State.
    Opinion delivered November 21, 1927.
    1. Indictment and information — indorsement by foreman of grand JURY. — Under Crawford & Moses’ Dig., § 3009, requiring that an indictment be indorsed “a true bill,” and the indorsement signed by the foreman, held an indictment is not defective because the foreman indorsed his name above the words, “a true bill.”
    2. Criminal law — instruction defining offense. — It was not error for the court to instruct the jury, in a prosecution for selling intoxicating liquors, by defining the offense charged in the language of the statute under which the indictment was drawn.
    3. Criminal law — application of instructions to case. — In a. prosecution under Crawford & Moses’ Dig., § 6160, for selling and giving away intoxicating liquors, where the testimony exclusively involved the issue of sale, refusal of the court, over defendant’s objection, to eliminate the language in instructions submitting the issue of giving away liquor, held error.
    4. Criminal law — ’Abstract instructions. — It is error to give abstract instructions calculated to c.onfuse and mislead the jury.
    5. Criminal law — when abstract instructions not misleading.— In a prosecution for selling and giving away intoxicating liquors under Crawford & Moses’ Dig., § 6160, instructions permitting the jury to convict if defendant gave away or was interested in giving away intoxicating liquors, held not to require reversal as abstract and calculated to confuse and mislead the jury, where the testimony related to the sale only and the jury returned a general verdict of guilty.
    6. Criminal law — argumentative instructions. — In a prosecution for selling and giving away liquor, an instruction that if the jury had reasonable doubt as to whether witness might not be mistaken as to defendant’s identity, they should find that the corroborating evidence produced a degree of certainty so great as to remove reasonable doubt, held properly refused as argumentative and singling out particular witness and particular piece of evidence.
    7. Criminal law — conviction on circumstantial evidence. — A defendant may be convicted upon circumstantial evidence, but, to warrant conviction thereunder, circumstances must be not only consistent with defendant’s guilt, but inconsistent with his innocence.
    8. Criminal law — evidence of sale of liquor. — Testimony of the witness that, several months, before the alleged sale of intoxicating liquors, liquor was found on defendant’s premises, held admissible as tending to prove that defendant was engaged in the * business of selling liquor.

      9. Criminal law — invited error. — Where defendant’s counsel on cross-examination elicited testimony relative to defendant’s payment of a fine in justice court, refusal of court to withdraw such testimony from jury’s consideration was not error, though the testimony elicited might have been otherwise inadmissible.
    Appeal from Little River 'Ciriouit Court; B. E. Isbell, Juclge;
    reversed.

      Dulaney & Steel and Shaver, Shaver & Williams, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

Tom Withem was indicted by the grand jury of Little River County. Omitting formal parts, the indictment charged that “the said Tom Withem, in the county and State aforesaid, on the 15th day of October, A. D. 1926, unlawfully and feloniously did sell and was unlawfully and feloniously interested in the sale and giving away of ardent, vinous, malt, spirituous, alcoholic and fermented liquors,” etc. Indorsed on the back of the indictment was the following:

“No. 482 — State of Arkansas v. Tom Withem, J. R. Wood.' A true bill......................................................................Foreman. Indictment for selling liquor. Filed in open court in the presence of all the grand jurors this 15th day of July, 1927. Natalie S. Williams' Clerk. By.....................D. C. Witnesses: Homer Darby. ’ ’

It is not contended here that the verdict was contrary to the evidence. Therefore it is unnecessary to set out the testimony. The defendant moved to quash the indictment on the ground that no true bill had been presented, inasmuch as the indictment was not indorsed a true bill and signed by the foreman of the grand jury.

The court, on its own motion, gave instructions numbered from one to six. Instruction No. 1 is as follows:

“It shall be unlawful for any person, firm or corporation to sell, or give away, or be interested, directly or indirectly, in the sale or giving away of any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors.”

In the second instruction the court told the jury in substance that, if they believed from the evidence beyond a reasonable doubt that the defendant sold or gave away or was interested, directly or indirectly, in the sale or giving away of the liquors mentioned in the first instruction, they should find him guilty and fix his punishment at imprisonment in the State Penitentiary for a period of one year at hard labor.

The third instruction is as follows: ‘ ‘ The jury are instructed that the indictment is not evidence of defendant’s guilt; that the defendant is presumed innocent and not guilty as charged in the indictment, and that this presumption follows him throughout the trial until the jury are constrained to find him guilty from the evidence in the case, beyond a reasonable doubt; that the burden is upon the State to prove the defendant guilty beyond a reasonable doubt.”

The fourth instruction defines reasonable doubt.

The fifth instruction was on the credibility of witnesses.

The sixth instruction is as follows:

“You are instructed that it is as competent to convict upon circumstantial evidence as upon positive testimony. Positive testimony is that of eye-witnesses, witnesses who testify as to the transaction that shows the guilt or innocence of the defendant. Circumstantial evidence is evidence of circumstances by which guilt or innocence is proved or disproved. In so far as the evi- . dence is circumstantial in this case, to convict the defendant it is necessary that the circumstances not only point to and be consistent with the guilt of the defendant, but should also be inconsistent with his innocence.”

The defendant presented seven prayers for instructions, all of which were refused by the court. The substance of the first prayer was that the burden of proof was on the State to prove the defendant guilty, and, unless the State had shown from the evidence, beyond a reasonable doubt, that the defendant did feloniously sell or give away, or was directly or indirectly interested in the selling or giving away of intoxicating liquors, they should find him not guilty.

The second prayer for instruction told the jury, in substance, that, if they had a reasonable doubt as to whether witness' Darby might not be mistaken as to the identity of the defendant, then, before the jury would be authorized to convict, they should find the corroborating circumstantial or other evidence tending to establish his identity must be such as, with the other testimony, produced a degree of certainty in the minds of the jury so great that they had no reasonable doubt as to the identity of the defendant.

The third prayer for instruction, in substance, told the jury that the indictment was not a mere, fonnal charge or accusation against the defendant, and is of itself no evidence of the defendant’s guilt, and that no juror should permit himself to be influenced to any extent because of the indictment.

Prayer for instruction No. 4 told the jury that the defendant was entitled to the presumption of innocence, which attended him throughout the trial as evidence in his favor, and entitled him to an acquittal, unless the State produced evidence which convinced the jury beyond a reasonable doubt of the defendant’s guilt.

Prayer for instruction No. 5 told the jury that the burden was on the State to prove the defendant’s guilt beyond a reasonable doubt.

Prayer for instruction No. 6 was as follows:

“The court instructs the jury that the facts relied on by the State to show the defendant’s guilt must not only be consistent with and point to his guilt, but must be inconsistent with his innocence; and if all the facts and circumstances of evidence, viewed together, are susceptible of two reasonable interpretations, one of innocence, and the other of guilt, the interpretation of innocence must be adopted in the defendant’s behalf, and you should acquit him.”

Prayer for instruction No. 7 is as follows:

“You are instructed that you will not consider the testimony with reference to the time he entered his plea of guilty in the justice court and the facts concerning that • transaction. ’ ’

The jury returned a verdict finding the defendant guilty, and fixed his punishment at imprisonment in the State Penitentiary for a period of one year. Judgment was rendered in accordance' with the verdict, from which is this appeal.

1. Section 3008 of C. & M. Digest provides: “The concurrence of twelve grand jurors is required to find an indictment.” Section 3009 provides: “When so found, it must be indorsed a true bill, and the indorsement signed by the foreman.” The record shows that J. R. Wood was selected foreman of the grand jury that returned the indictment against the appellant. It is true his name appears above the words, “A true bill” instead of below, but that is wholly immaterial. His indorsement gives sanction to the indictment as being a true bill and is a compliance with the statute. The trial court therefore ruled correctly in overruling appellant’s motion to quash the indictment.

In the cases of State v. Agnew, 52 Ark. 275, 12 S. W. 563, and McFall v. State, 73 Ark. 327, 84 S. W. 479, we decided that the above provision of the statute was directory. In the case of Taylor v. State, 169 Ark. 589, 276 S. W. 577, the indictment was not signed by the foreman of the grand jury, but was indorsed by him, and in that case we said: “The record reflects that the indictment was indorsed by the foreman of the grand jury. This meets the requirement of the statute.” It will be observed that in none of these cases is it held that a failure to comply with the directory provision of the statute would be ground for quashing an indictment, neither are we called upon to decide, and we do not decide, that ques-lion in this case, for the reason, as already stated, that the indorsement as found on the indictment is a sufficient compliance with the statute, even if the same were a mandatory provision.

2. Appellant, in his exceptions to instruction No. 1 given bv the court on its own motion, states: “The defendant objects generally to action of the court of its own motion reading the statute defining the crime charged in the indictment, generally, and specifically for the reason that the statute defines several separate offenses. It covers the sale directly or indirectly not only of whiskey, but various iand sundry other, items, and also charges the jury as to giving away of liquors, all of which is confusing and misleading to the jury and releases it in the realm of speculation as to other crimes and other offenses described by the statute, when there is no testimony in the case concerning any violation of the statute except a direct sale; and it further authorizes the jury to find him guilty for giving away liquors.”

The appellant’s fourth ground of his motion for a new trial assigns as error that the court erred in reading to the jury, over the objection of defendant, § 6160 of C. & M. Digest. But the bill of exceptions does not show anywhere that the court read § 6160 to the jury. True, the first instruction given by the court defines the offense of which the appellant is charged in the language of a part of that section. Instruction No. 1 followed the language of the statute as it pertains to the sale or giving away or being interested in the sale or giving away of liquors mentioned in the statute, and it is not error for the court to instruct the jury defining the offense charged in the language of the statute. After so defining the offense, thq court submitted the issue to the jury as to whether the defendant was guilty of the crimes charged. It should be stated in this connection that the appellant did not move to require the State to elect to try the defendant on the charge of selling liquor only. But all the testimony in the case shows that the State did in effect elect to pursue the appellant only for the offense of selling liquor by directing its proof solely to that offense. See Rhinehart v. State, 160 Ark. 129, 254 S. W. 351; Gramlich v. State, 135 Ark. 243, 204 S. W. 848; Chronister v. State, 140 Ark. 40, 215 S. W. 634.

Instructions Nos. 1 and 2 were germane to the offense of selling liquor as charged in the indictment, but they also covered the offense of giving away and being interested in the giving away of liquors as charged in the indictment. The appellant objected generally and specifically to these instructions on the ground that “‘they defined several separate offenses, when there is no testimony in the ease concerning- any violation of the statute except a direct sale, and it further authorizes the jury to find defendant guilty of giving away liquors.” Upon these specific objections the court erred in not eliminating the language as to other offenses from the instruction, and should have submitted to the jury solely the offense of selling the intoxicating liquors named. The State, as we have said, in effect had elected to prosecute the appellant for the sale of intoxicating liquors only, and the specific objections of the appellant were tantamount to a request of the court to have that issue only submitted to the jury. One of the witnesses testified that the appellant came by his house and left with him a gallon of liquor; that he didn’t pay appellant anything for it, because appellant didn’t ask him for the money. He had agreed to pay appellant six dollars for it about a year ago. Appellant brought the whiskey down to witness’ house and just gave it to him.

The instructions as to the giving away and being-interested in the giving away of the inhibited liquors wrere abstract, and calculated to confuse and mislead the jury. The doctrine that it is erroneous to give abstract instructions calculated to confuse and mislead the jury is too well established by numerous decisions of this court to cite cases. But see St. Louis, I. M. & So. Ry. Co. v. Denty, 63 Ark. 177, 37 S. W. 719; Frank v. Dungan, 76 Ark. 599, 90 S. W. 17; Emerson v. Turner, 95 Ark. 597, 130 S. W. 538; St. L. S. F. Ry. Co. v. Vernon, 162 Ark. 226, 258 S. W. 126; Wis. Ark. Lumber Co. v. McCloud, 168 Ark. 352, 270 S. W. 599. An error in giving- an abstract instruction will not cause a reversal of the judgment where, notwithstanding- the instruction, a special finding of the jury shows that it was eliminated from their consideration. St. L. I. M. & S. Ry. Co. v. Baker, 67 Ark. 531, 55 S. W. 941. But here the verdict of the jury was general in form, finding the defendant “guilty as charged in the indictment.”

Inasmuch as the cause must be reversed for the error indicated, it is unnecessary and would unduly extend this opinion to discuss the other instructions to which objection is made by counsel for the appellant. We have examined the other instructions given by the court on its own motion and the prayers of the appellant for instructions. We find no error in the other instructions given by the court on its own motion, nor in the ruling- of the court in refusing the prayers of the appellant for instructions. Appellant’s prayers for instructions numbered 3, 4 and 5, relating to presumption of innocence, and- burden of proof, and reasonable doubt, were sufficiently covered by instruction No. 3 given by the court on its own motion. Appellant’s prayer for instruction No. 1 is sufficiently covered by instruction No. 4 given by the court. Appellant’s prayer for instruction No. 2 is argumentative ; it singled out a' particular witness' and drew . attention to a particular piece of evidence. Prayers for instructions Nos. 6 and 7 by the appellant were also argumentative, and the court did not err in refusing them. Instruction No. 6 given b3r the court on its own motion on the subject of circumstantial'evidence was a correct declaration of law.

The court did'not err in refusing to grant appellant’s prayer for instruction No. 7. It will be observed that this instruction told the jury that they would not consider the testimony with reference to the time that appellant entered his plea of guilty 'in the justice court and the facts concerning same. Boy Sellman testified that he, in company with another officer, searched appellant’s premises in the early fall of 1926 and found a thirty-gallon keg in his seed-house with some liquor in it. Counsel for appellant was then granted permission by the court to ask the witness the following:

“Q. Mr. Sellman, what you have related Mr. Withem has paid a fine for that in the Foreman justice court? A. He did. Q. That is a matter of record, is it? A. I suppose it is.”

The appellant objected to the testiinony of Sellman, and asked that the same be excluded for the reason that the “matter is of record, and he cannot go into details.” Appellant was charged with the crime of selling intoyieating liquors on or about tlio lotlr day of October, 1926, and the testimony of Sellman tended to prove tliat, in the late summer or early fall of that year, the liquor mentioned was found on appellant’s premises. The testimony was relevant as a circumstance tending to prove that appellant was engaged in the business of selling intoxicating liquors. Herrin v. State, 169 Ark. 636, 276 S. W. 365; Melton v. State, 165 Ark. 448, 264 S. W. 965; Noyes v. State, 161 Ark. 340, 256 S. W. 63. The testimony of Sellman that appellant had paid a fine in the justice court for possessing liquor was elicited by appellant’s counsel, and therefore this was invited error of which appellant is in no attitude to complain. Smith v. State, 153 Ark. 645, 241 S. W. 37; Tarkington v. State, 154 Ark. 365, 242 S. W. 830. There was no error in the ruling of the court in admitting the testimony of Sell-man, nor in refusing to grant appellant’s prayer for instruction No. 7.

For the error in giving instructions Nos. 1 and 2, over the special objection of appellant, and in submitting to the jury the issues as to whether or not appellant gave away, or was interested, directly or indirectly, in giving away, the contraband liquors mentioned in these instructions, the judgment is reversed, and the cause is remanded for a new trial.