text:
    Union Indemnity Company v. Covington.
    Opinion delivered December 3, 1928.

      Buzbee, Pugh & Harrison and Ward & Caudle, for appellant.

      Richard M. Priddy, J. H. A. Baker, George F. Hartje, Robert Bailey, and C. M. Wofford, for appellee.
   Smith, J.

The 'building committee of the Russell-ville Masonic Lodge, on behalf of the lodge, entered into a contract on September 10, 1926, with the T. P. Miller Construction Company, to erect a Masonic temple in the city of Russellville, and on September 27, 1926, a bond was executed by the construction company, with the Union Indemnity Company as surety, to the building committee as obligee, in the sum of $30,500, which recited the building contract, and obligated the contractor and the indemnity company to “save harmless the said obligee from any pecuniary loss resulting from the breach of any of its terms” on the part of the contractor, with the provision, however, that the bond was issued subject to the following conditions:

The bond was conditioned that no liability should attach to the surety unless, in the event of any default, the obligee should, within thirty days after being advised thereof, deliver written notice of the default to the surety. The bond provided also that, in case of default, the surety should have the option to complete the contract, in which event the surety should be subrogated ‘ ‘ to all the rights and properties of the principal arising out of the contract, including all deferred payments and retained percentage.” It was also provided that “in no event shall the surety be liable to other than the obligee, or for a greater sum than the penalty of this bond, or be subjected to any suit, action or other proceeding thereon that is instituted later than the first day of August, 1927. ’ ’

Notwithstanding the fact that the bond was executed September 27, 1926, it was not filed with the clerk of the circuit court of the‘county in which Russellville is situated until May 18,1927.

On May 11, 1927, the Twin City Brick & Tile Company filed a claim for a lien for material'furnished against the temple building', and suit was brought to enforce this lien on October 30, 1927. The surety company was not made a party to' this suit.

On September 3, 1927, Willie T. Covington brought suit against the building committee and the surety company, praying- judgment for the amount of certain material used in the construction of the building. This suit was for putting on the roof, which was completed about March 1, 1927.

The suit of the brick company, praying a lien against the building, and that of Covington, praying judgment against the surety company, were consolidated, and several material furnishers intervened in the consolidated case and were made parties thereto. Certain of these interveners filed their accounts with the clerk of the circuit court as required, and within the time limited by ■§ 6922, C. & M. Digest, and, upon the assumption that the bond of the surety company was a statutory bond, inuring to the benefit of all persons who had furnished material or performed labor on the building, they prayed judgment for the amount of their respective demands. Other interveners, who did not within ninety days file their accounts with the clerk of the circuit court, prayed .judgment upon their interventions filed after the expiration of that time against the surety company, upon the theory that the bond had been executed pursuant to § 6915, C. & M. Digest,- and that suit might be brought upon the bond at any time within six months after the completion of the 'building.

A member of the building committee testified that the building was completed, so far as the contractor was concerned, on July 25, 1927, although some work was done after'that date.

The court below decreed that, inasmuch as the brick company had proceeded to enforce and foreclose its lien 'before the bond of the surety company had been filed with the clerk of the circuit court as the statute required, its right to a lien became fixed, and was not displaced by the subsequent filing of the bond, but that, after the filing of the bond, the right to foreclose a lien ceased, and the material furnishers and laborers, except the brick company, were relegated to a suit on the bond of the surety company, and upon this theory rendered judgment against the contractor and the surety company for the amount of all claims except that of the brick company.

The surety company has perfected an appeal, and the Masonic lodge has prayed and perfected a cross-appeal.

It is necessary, first, to determine the character of the bond executed by the surety company. It is insisted that it was executed under § 6915, C. & M. Digest, and that any cause of action arising under it could have been sued on at any time within six months after the completion of the building, and that the filing of this bond displaced the right of the plaintiffs and interveners in this suit to assert a lien against the building’, and that the plaintiff brick company should have sued on this bond, and that the others properly did so. We are of the opinion, however, that the bond is not a statutory bond, and, if it were, the applicable statute is not § 6915, C. & M. Digest, but is § 6912, C. & M. Digest.

Act 446 of the Acts of 1911 (Acts 1911, page 462) contains three sections relating to the execution of a bond by the principal contractor, whereby any building, etc., under construction may not be subject to the liens provided for in § 6906, C. & M. Digest. These sections of the act of 1911 became and are §'§ 6912, 6913 and 6915, C. & M. Digest.

Section 6912 is applicable to buildings generally, that is, all buildings, etc., not covered by § 6913 or by § 69T5, O. & M. Digest, and it has been held that, in cases where § 6912 is applicable, it is optional on the part of both the owner and the contractor to make a bond, that is, it is a matter of contract between the owner and the contractor as to whether a bond shall 'be executed or not. Stewart-McGehee Construction Co. v. Brewster, 171 Ark. 200, 284 S. W. 53. And it has been held that, if no bond is given, the laborer or material furnisher must comply with § 6922, C. & M. Digest, by filing a verified account with the clerk of the circuit court; but, where the bond is given, the person who, in the absence of the bond, would have a lien, might sue on the bond without complying with § 6922, C. & M. Digest. But the beneficiaries under the statute who do not comply with § 6922, U. & M. Digest, must institute suit on the bond before the time has expired for establishing liens, which, as was said in the case of Acme Brick Co. v. Swim, 168 Ark. 185, 269 S. W. 369, is within ninety days after the last item of material was furnished or work done. See also StewartMcGehee Construction Co. v. Brewster, supra. If § 6922, C. & M. Digest, is complied with, suit may be brought on the bond at any time within fifteen months. Section 6913, C. & M. Digest, relates to public buildings, and it, of course, does not apply here.

Section 6915, C. & M. Digest, relates to the building or repair of “any church, hospital, orphanage or charitable institution or benevolent institution,” and there is no testimony in the present record showing it to be such.

There is certainly no presumption that the temple or building of a fraternal organization is a benevolent or charitable institution, and there is no testimony here to that effect. If it were, suit might be brought on the statutory bond covering its construction at any time within six months after the completion of the building. Section 6916, C. & M. Digest.

We conclude therefore that, if the contractor’s bond upon which the indemnity company became surety were a statutory bond, the applicable statute is § 6912, C. & M. Digest, and, as we have seen, suit on this bond must be brought within ninety days after the material has been furnished or the work done by those who do not comply with § 6922, C. & M. Digest.

The suit of the brick company was brought within that time, and was brought, not upon the bond, but to foreclose the statutory lien, and we think the court properly granted the relief prayed.

We are of the opinion, however, that the court was in error in rendering judgment against the surety company in favor of other material furnishers, for the reason that the bond was not a statutory one, and was executed for the sole benefit of the Masonic lodge.

It was held in the case of Mansfield Lbr. Co. v. National Surety Co., 176 Ark. 1035, 5 S. W. (2d) 294, that a bond given by a contractor, binding- him and his surety to indemnify the owner against claims for labor and material, which was not filed with and approved by the clerk of the circuit court as required by the statute, was not a statutory bond, but that, even though it were not a statutory bond, if its obligations were broad enough to cover the demands of persons having contracts for labor or material, such persons might sue on the bond for the amount of their demands. Here the bond, though dated September 27,1926, was not filed with the clerk until May 18, 1927, and was not even then approved by the clerk.

Contrary to the provisions of the statute that the statutory bond shall be for the benefit of all material furnishers, etc., the bond here sued on recites “that in no event shall the surety be liable to other than the obligee, or for a greater sum than the penalty of the bond, or be subjected to any suit, action or other proceeding thereon that is instituted later than the 1st day of August, 1927.” This limitation as to the time within which suit may be broug'ht is contrary to the statute.

It was held in the case of Union Indemnity Co. v. Forgey & Hamson, 174 Ark. 1114, 229 S. W. 1032, that naming the commissioners of a drainage district as the obligee in a bond, instead of the 'State of Arkansas, and making the bond in a less sum than the statute required, did not prevent' the bond from being a statutory one, where it had been executed under a statute requiring the execution of a bond and in attempted compliance with the statute.

But we cannot construe the bond here sued on to be a statutory bond, when its obligations expressly negative that construction. This is not a case where the bond contains conflicting obligations; on the contrary, there is nothing in the bond to indicate that its protection inures to any one except the obligee, the Masonic lodge, and the recital is express that the surety shall be liable only to the obligee. We may construe contracts, but we have no right to make them, and we must therefore hold that the bond protects only the Masonic lodge, and the court was therefore in error in rendering judgment in favor of any of the interveners on the bond, and that judgment will be reversed and the interventions dismissed as to the surety company. Wallace Equipment Co. v. Graves, 132 Wash. 141, 231 Pac. 458; Massachusetts Bonding & Ins. Co. v. Hoffman, 34 Ga. App. 565, 130 S. E. 375. See also City of Erie, to use of Schafer, v. Diefendorf, 278 Pa. 31, 122 Atl. 159.

We think, however, that those laborers and material furnishers who complied with § 6922, C. & M. Digest, should have liens declared in their favor. It is true they did not pray this relief, but did pray judgments against the bond. However, this prayer was upon the assumption that the filing of the bond had displaced the liens.. The lodge was a party to the proceeding, in which the amount and validity of these demands were adjudged, and the court, instead of awarding judgments on the bond, should have declared liens on the building.

It appears that the building committee has on hand six thousand dollars which would be due the construction contractor (against whom judgment was rendered by default, and who has not appealed) had the building been constructed and completed according to the contract. This sum will be prorated and credited to the claims of those laborers and material furnishers who are entitled to liens under this opinion, and liens will be declared upon the building for the balance, to be enforced in the manner provided by law, and the cause will be remanded, with directions to enter a decree in accordance with this opinion.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Smith v. Union County.
    Opinion delivered December 3, 1928.

      Allyn Smith, for appellant.
   Humphreys, J.

Appellant filed petitions in the county court of Union County, in the years 1926 and 1927, to be relieved from the payment of his personal property tax in Union County, which was assessed to him in said county over his protest. He based his petitions for relief upon the ground that he had assessed and paid taxes upon the same property in Baxter County for both years, alleging that he was a resident of the latter county within the meaning and intent of § 9890 of Crawford & Moses’ Digest, which is as follows:

“Every person of full age and sound mind shall list the real property of which he is the owner, situated in the county in which he resides, the personal property of which he is the owner, and all money in his possession; and he shall list all moneys invested, loaned or otherwise controlled by him, whether for himself or as agent, attorney, or on account of any other person or persons, companies or corporations whatsoever, and all moneys deposited, subject to his order, cheek or draft, and credits due from or owing by any person or persons, 'body corporate or politic, whether in or out of said county or State.”

On a hearing each petition was denied, from which appeals were taken to the circuit court, the first appeal being filed November 8, 1926, and the second on November 14, 1927.

In the circuit oonrt the cases were consolidated and tried on the 12th day of March, 1928, resulting in an affirmance of the judgments of the county court denying the petitions, from which is this appeal.

The facts reflected by the record are as follows: Appellant established a home at Cotter, Baxter County, in 1906, in which he and his mother actually lived until her death in January, 1922. Immediately after her death he opened a law office in connection with iSizer & Gardner in Monett, Missouri. He left his home and law office in Cotter furnished, locked, and unrented, when he went to Monett. He made his personal property returns for that year in Baxter County, Arkansas, and returned to Cotter to cast his vote. He later severed his connection with Sizer & Gardner, and returned to Cotter on account of ill health, where he actually occupied his home and office for a period of eighteen months, assessing and paying taxes on all his personal property in Baxter County. In December, 1924, he went to Smackover, in Union County, and opened a law office, leaving his home and law office in Cotter furnished just as it had been, looked, and unrented. In 1925 he assessed all his personal property and paid his taxes, including his poll tax, in Baxter County. In June, 1925, he purchased a lot in Smackover, and built a law office. In September of that year hé shipped his Arkansas Reports and some of his office furniture to his office in Smackover, leaving a desk and most of his office furniture and library in his office at Cotter. In 1926 he assessed all his personal property, including the property he had shipped to Smackover, and paid taxes thereon, including his poll tax, in Baxter County. He returned to Cotter to cast his vote at each election since he opened his office in Smackover. In 1925 and 1926 the assessor of Union County, over the protest of appellant, assessed the personal property he had moved to his office in Smack-over from Cotter. Occasionally he returned to Cotter, and during, the time he was there he would actually occupy his home and office, and he and his daughter, Who teaches school in Kansas City, spend a part of each summer in Cotter, at which time they actually occupy the home and he actually occupies his office. At all other times the home and office remain furnished, looked, and unrented, since opening his office in Smackover. He does a general practice at Smackover, and has been there constantly, except when he went away on business and such time as he spent with his daughter in Cotter during the summer months. He has always claimed 'Cotter as his home.

In the case of Crone v. Cooper, 43 Ark. 547, after reviewing many cases discussing the meaning of residence, domicile and citizenship, we said: “We may conclude from the cases that, in contemplation of the attachment laws, residence implies an established abode, fixed permanently for a time for business or other purpose, although there may be an understanding existing all the while to return at some time or other to the principal domicile; but so difficult is it found to provide a definition to meet all the varying phases of circumstances that the determination of this question may present, that the courts say that, subject to the general rule, each case must be decided on its own state of facts.” In the case referred to the court ruled that, notwithstanding the fact that the debtor had a home or domicile in St. Louis, Missouri, yet he was a resident of Walnut Ridge, in this State, where he spent about three-fourths of his time, conducting a partnership contract business in connection with his partner, Oppenheimer. In that case his family actually resided in St. Louis, and the debtor was in the habit of speaking'of St. Louis as his home. According to the facts in the instant case, appellant spent most of his time in Smackover in the practice of his profession, and actually lived there, from the time he opened his office, instead of at Cotter, where he maintained a closed, unrented and unfurnished home and office. Residence, as used in •§ 9890, 'Crawford & Moses’ Digest, means the place of actual abode, and not an established domicile or home to which one expects to return and occupy at some future time. We think the construction placed upon the word “residence” under the attachment laws of this State should be placed upon the same word under the taxing laws of the State.

No error appearing, the judgment is affirmed.


text:
    Great Southern Fraternal Union v. Ewing.
    Opinion delivered December 3, 1928.

      Frank B. Pittard and John H. Quidor, for appellant.

      Philip McNemer, for appellee.
   Humphreys, J.

This suit was instituted by appellees against appellant, in the Third Division of the Pulaski Circuit Court, to recover $300 upon a life insurance policy issued by appellant to their father, who died'on November 24,1925. in which they were named as beneficiaries.

Appellant filed an answer to the complaint, interposing the defense that appellees’ father, the insured, committed suicide, which was an excepted risk under the terms of the policy.

The cause, by agreement, was submitted to the trial court sitting as a jury, resulting in a verdict and consequent judgment against appellant, from which is this appeal.

Appellant’s sole contention for a reversal of the judgment is that the undisputed testimony, and the only reasonable inferences that might- be drawn therefrom, overcame the presumption that the law indulges against a person taking his life with his own hands. The rule of presumption against suicide was succinctly stated in the case of Grand Lodge of A. O. U. W. v. Bannister, 80 Ark. 190, 96 S. W. 742, in the following language:

“In the first place, there is a presumption against suicide or death by any other unlawful act, and this presumption arises even where it is shown by proof that death was self-inflicted; it is presumed to have been accidental, until the contrary is made to appear. This rule is founded upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being.”

The record reflects, according to the undisputed testimony, that Lem Briggs, the insured, was living with his daughter, the appellee, and that during her absence, not to exceed ten minutes, her father was shot in the abdomen. Appellee had left her father alone in the house, and gone for a few minutes to the home of her mother-in-law, who lived a block away. Upon her return she found her father, who had been shot, in a semi-conscious condition, sitting in a rocking-chair, with his eyes partially shut. There was a burnt place in his clothing where the bullet had entered his body on the left side. Appellee tried to talk to him, but he made no statement to her then, nor afterwards in the hospital where he was taken for treatment, and where he died. No pistol or gun was found in the house where the insured was shot. Appellee met no one coming from the house as she returned after her short visit to her mother-in-law.

It. F. Montague, who resided near appellee at the time her father was shot, testified that he went over to her home to offer his assistance, and heard an old woman by the name of Ewing talking to the insured, and heard him say to her, “I did it myself.”

The record reflects that appellee stated to several parties that her father committed suicide, but she denied making the statements, so this issue of fact was not undisputed.

The undisputed facts detailed above are insufficient to overcome the presumption of law against suicide. The rule relative to the presumption against suicide announced by this court plainly states that such presumption cannot be overcome by simply showing that the death of an insured was self-inflicted. The shot may have been an accidental one, and the presumption is that it was, unless shown that it was purposely fired. If the language used by the insured to the Ewing woman had reference to the wound, the statement failed to disclose whether he fired the shot accidentally or purposely. The burden rested upon appellant to show that the shot was purposely fired by the insured. As the undisputed proof did not show that the shot vas intentionally fired by the insured into his body, it became a question of fact for determination by the jury. The test as to when the facts are sufficiently disputed to become an issue for the jury was correctly stated in the case, of Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S. W. 532, and is as follows:

“If reasonable men, viewing the facts, which are undisputed, might come to different conclusions as to whether the deceased committed suicide, then the facts, although undisputed, were properly submitted to the jury. ’ ’

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Salzer Chevrolet Company v. General Motors Acceptance Corporation.
    Opinion delivered December 3, 1928.

      Allyn Smith, for appellant.

      Barber & Henry, Troy Lewis and Clayton Freeman, for appellee.
   Kirby, J.

Appellee brought this suit in the Pulaski Circuit'Court, as a holder in due course of a contract note executed by David Connor, to recover $360 balance due of the unpaid purchase price of a Chevrolet truck sold to him on the usual sales agreement by the Smack-over Chevrolet Company.

Connor denied the indebtedness on the note, and alleged that he had been released by the Smackover Chevrolet Company and its successors, by disposition of the truck to a third party with the consent of the sellers. Thereupon appellee amended its complaint, setting up the written agreement, under which it was alleged appellant had become liable upon its indorsement of the Con-nor paper, and appellant company, successors to the Smackover Chevrolet Company, was brought in by proper service. The appellant company demurred generally, and specially to the amended complaint,,and, the demurrer being overruled, answered, denying liability and that Connor had been released by it or its predecessors from his obligation.

It appears from the testimony that the predecessors of appellant company sold the truck to David Connor, in Union County, on a regular automobile title-retaining sales contract, and thereafter sold and indorsed the note and contract to the appellee company, and it is not denied that appellant company, successors to the selling company, takes its place in liability upon the contract of sale and indorsement made by its predecessors. This contract provides that ‘ dealer is not protected against loss resulting from conversion, confiscation and collusion, under the following circumstances: (h), where any settlement is made by the dealer with the purchaser without the consent of General Motors Acceptance Corporation.” After the car had been sold and the contract and note had been transferred to the appellee, Connor was allowed to sell the automobile to a third person; and he claimed release from all obligation under his contract, which was to be performed by the purchaser. This purchaser removed the automobile from the iState, and it has never been found. The appellee company finally located Con-nor in Pulaski County, and brought suit against him for the balance of the unpaid purchase price of the truck. Connor answered, alleging he had been released by the selling company and its successor, and the complaint was amended to include the appellant company as successor to the selling company as a defendant.

There was testimony tending to show that the appellant company had released Connor from his contract of purchase, and permitted the delivery of the truck to Corn, to whom Connor, being unable to pay, had sold it, upon payment by him of a $10 fee for covering the costs of transfer. This was denied by Salzer, of appellant company, and no contention was made that appellee, holder of the note and sales contract, had consented to or been informed of the transfer and delivery of the truck to Corn, who disappeared with it. The court instructed the jury to return a verdict for appellee against Connor, and, under instructions not objected to, the jury returned a verdict against appellant company, who alone appealed.

The appellant company could not release the purchaser of the truck from payment of the note given for the balance of the purchase money thereof and duly transferred to appellee, nor, so far as appellee was concerned, escape liability under its contract by permitting the transfer of the truck by the purchaser to a third person, without the consent of or information to the holder of the purchase money note and sales contract retaining the title thereto. The court did not err therefore in directing a verdict against Connor for the balance due on the note-for the unpaid purchase money of the truck. This is true, even though, it be conceded that Connor might otherwise have been relieved from liability to the selling company on account of its agreement about the transfer and sale of the truck to Corn, the third person. The question of whether appellant company had released Connor from the performance of the contract by allowing the sale and delivery of the truck to Corn, so far as concerns the parties, and would have amounted to a settlement with the seller of the truck and its conversion within the meaning of the contract between the appellee and the selling company, was submitted to the jury under instructions unobjected to, and, there being substantial testimony in support of its finding, the judgment will not be disturbed on appeal. Harris v. Bush, 129 Ark. 269, 196 S. W. 471.

Appellee had the right to bring the suit against Con-nor in Pulaski County, where he was found, this action being transitory, and also to maintain the suit against the appellant company, summoned in another county, upon its liability under its contract of sale and indorsement oP the Connor note for the unpaid purchase money and contract of purchase of the truck, having obtained judgment in the Pulaski Circuit Court against Connor. Section 1178, C. & M. Digest.

The appellant company, having answered after its demurrer was overruled, waived all the grounds thereof, except as to the jurisdiction of the court and the sufficiency of the complaint, and no error was committed in overruling the demurrer. We find no error in the record, and the judgment is affirmed.


text:
    Speck v. Dodson.
    Opinion delivered December 3, 1928.

      Bruce Ivy and J. T. Coston, for appellant.

      Aaron McMullin, B. H. Dudley and J. F. Gautney, for appellee.
   Kirby, J.

Appellee brought this suit against appellant, administrator, and the unknown heirs of Tom Morris, deceased, claiming ownership of the real and personal property belonging to Morris at the time of his death; alleging that in 1901 Morris, who was growing old and feeble, and who was the husband of his annt, induced the plaintiff to change his residence from Mississippi and come to Arkansas and live with him, under the promise- and agreement that, if appellee would do this, and take care.of and assist in supporting and caring for Morris and his wife, appellee’s aunt, he, Morris, would give him all the property that he might own at the time of his death. That appellee accepted the proposition, and moved to Arkansas, and continued to reside with and care for Morris and his wife during their lives. In 1902 Morris bought the land in controversy, then wild -and unimproved, and moved on it in 1903. Appellee moved with the family, cleared and hired the land cleared and put in cultivation, and, during the time, taught school, and used his earnings for paying for clearing and putting the land in cultivation. That Morris died September 6, 1926, withoht issue and without heirs, after the death of his wife in May, 1926. The land was mortgaged to the Southern Loan and Abstract Company for $750, and part of the mortgage remained unpaid. Prayed that appellee be decreed to be the owner of the real and personal property of the estate, subject to the mortgage indebtedness, and that his title thereto be quieted as against said administrator and the unknown heirs of Morris. Also prayed an injunction to prevent the administrator from interfering with appellee in his possession of the property. An attorney was appointed to represent the unknown heirs. Appellant, administrator, answered, denying the allegations of the complaint.

The testimony is rather voluminous, and it is unnecessary to review it at length, but we find, after careful consideration, that it clearly establishes the fact that appellee went to live with his uncle, Tom Morris, the husband of his aunt, under an agreement that he would give him, in consideration of his living with them and taking care of himself and wife during their lifetime, all the property which he owned at the time of his d.eath; that appellee moved from his home in Mississippi to Arkansas, and took np his residence with Morris, and continued to live with and care for him and his wife throughout the remainder of their lives; that the land in controversy was purchased by Morris in 1902, was wild and unimproved at the time; that he moved with Morris from where he had been taking’ care of them on to this land, in 1903, and cleared and hired the land put in cultivation, teaching school part of the time, and using his earning’s in paying for the improvements. Appellee married in 1912, and Morris told him to put his house v'herever he wanted it, and to clear the land on the other side of the bayou, which was his.

Appellee testified that he' was 50 years old; had resided in Mississippi County for 25 years; that Ester Morris, Tom Morris’ wife, was his mother’s sister, and he had known them all his life. That he had, at the invitation of Morris, come to Arkansas, after the death of his mother, and that Morris said to him, “We are old folks,” and, “Seems like you might come and stay with us and live with us — we got no children, no one to take care of us, and we want you to live with us ”; and ‘ ‘ If you will come, what is around us is yours; * * * we have no one else to have it.” Morris had no kin people living. He stated that he married in 1912, and had lived with Morris and wife for eleven years before that. He taught school, attended to the stock, and did the cooking lots of times when they were ill. He looked after them, and after he was married his wife was with them every day, giving them care and attention, and during the latter part of their lives gave up his home and lived with them. He spent his own money in clearing the land, and after his marriage he paid rent to Morris, because that was *all he had to live on. That he did not know that appellant was appointed administrator until after his appointment, and the personal property taken into possession by the administrator was worth four or five hundred dollars.

Many witnesses testified that Morris had told them that he had no heirs or kinfolks, and that-Lewis Dodson, who had lived with and taken care of him and his wife, would get what property he had after his death. One witness said: “Dodson lotoked after Morris and wife as though they had been his father and mother, waited on them like they were children, and his wife was there all the time, and he was there before he went to school and after school was out.”

From a decree for specific performance and quieting the title to the lands in appellee, this appeal is prosecuted.

Appellant insists that the decree is contrary to the weight of the evidence, but we cannot agree with this contention. The evidence is virtually undisputed that appellee came from another State to live with Tom Morris and his wife, aunt of appellee, at their invitation, and under an agreement that he should have what property they owned at the time of their death, and, pursuant to the contract and agreement, did live with, take care of and help support them throughout their lives. See Williams v. Williams, 128 Ark. 1, 193 S. W. 82.

It is true the witnesses for the defendant testified that Tom Morris had said to some of them that appellee was a relation of his wife, and, as he had no other heirs, he would inherit the property at his death, and one of the witnesses testified that when he asked “Uncle Tom,” shortly before his death, what was going to become of his property, he replied “that Lewis thought he was going to get it, but he would show him about that;” and also that he had paid some rents on the land during the last years of Morris’ life. He explained this fact, however, by saying that the rent was paid in order that Morris might have money enough to live on, as he had no means of support, except what was furnished by appellee under his agreement. There was nothing inconsistent in his payment of rent, under the circumstances, with appellee’s claim of being entitled to the property under his oral contract for taking care of and supporting* the decedent to the time of his death. The property did not belong to appellee, nor was it agreed it should become his property until the death of Morris, the owner, whom he was bound to take care of during his life. The case is unlike Walker v. Eller, ante, p. 183.

Appellee, having’ performed his contract, was entitled, after decedent’s death, to enforce the agreement, notwithstanding the same was orally made. Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049; Fred v. Asbury, 105 Ark. 494, 152 S. W. 155; Williams v. Williams, supra.

There being no error in the record, the decree is affirmed.


author: Mehaffy, J.

text:
    Henderson Company v. Webster.
    Opinion delivered December 3, 1928.

      W. J. Goodwin, for appellant.

      T. O. Abbott, for appellee.
   Mehaffy, J.

The Henderson Company is engaged in the manufacture of casinghead gasoline from natural gas, in Union Oountji, Arkansas.

The appellee, N. L. Webster, is the executor of the estate of E. M. Telle, who was a broker, handling gasoline, oil and its by-products, purchasing the same in the local field, and selling to various persons over the States. Telle committed suicide in Little Bock, on the 12tfi day of January, 1927. Prior to that time he had purchased large quantities of gasoline from appellant over a period of years, and at the time of his death hé was indebted to appellant in the sum of approximately $12,000. Appellant was continuing to sell to him on credit, and, a day or two before Telle’s death, the Henderson Company received an order for a certain lot of casinghead gasoline.

On the day of Telle’s death, Webster, who operated Telle’s office, ordered some gasoline from the Henderson Company. It was loaded out and delivered, and the Henderson Company gave the railroad company a stop order. The Telle Company had not only received the gasoline, but had unloaded a part of it, and, after receiving the order to stop the shipment, the railroad company went to get the car, and the Telle Company replaced a portion of the gasoline with a cheaper grade, and permitted the car to go back to the Henderson Company. The Henderson Company presented its account to the administrator for something more than $12,000, but the account presented did not include the price of the gasoline in the car delivered the day of Telle’s death.

The administrator brought suit for the car on the ground that the gásoline had been delivered to the Telle Company, and retaken by the Henderson Company without authority. The case was tried in the circuit court, and a jury returned a verdict for $883.58 against the appellant. The case is here on appeal.

The undisputed proof shows that Telle died on January 12,1927, but that the news of his death did not reach El Dorado until about 5 o’clock on that day. About 8 o ’clock the agent of the Henderson, Company went to Telle’s refinery, and found the car in litigation on Telle’s loading track, with approximately one-half of its contents unloaded. Henderson Company’s agent instructed some of the men at the plant not to unload any more of the contents of the car. But, in order to blend another car of gasoline for which Telle’s plant had an order, a product from. Tellé’s plant .was run into the Henderson Company car, and the railroad company, acting under orders of the Henderson Company, removed the car with its contents from Telle’s plant, and this suit is to recover from the appellant the value of the contents of said car. The railroad company went to Telle’s track the next morning after Telle’s death and removed the car hack to the appellant company’s track. The hill of lading had never been delivered.

The evidence does not' show the exact date that the car was put on the Telle track. That is, does not show the hour; it was on the 12th day of January, probably about 4:30 o’clock. This was before news of Telle’s death had been received.

After the evidence was introduced, appellant requested the court to instruct the jury to return a verdict. for the defendant. This request was refused, and proper exceptions saved. The court, however, instructed the'jury that the burden of proof was upon appellee, and that, if ■the jury found from a preponderance of the evidence that the appellant sold and delivered to Telle, during his lifetime, a carload of casinghead gasoline, and that it was delivered to Telle during his lifetime, and that the delivery had already been made before his death, and that he was due and indebted to the Henderson Company for said gasoline before his death, it should then find for the plaintiff, unless the jury found there had been an accord •and satisfaction of the matter subsequent to the sale and delivery.

It will be seen from this instruction, the substance of which is set out above, that the jury could not find a verdict for appellee unless it found that the car had been delivered to Telle before his death. And the jury was further instructed, in substance, that, unless they did find from a-preponderance of the evidence that the car was sold and delivered during Telle’s lifetime, their verdict should be for appellant.

The court also instructed the jury specifically on the question of accord and satisfaction. It is true that the court instructed, the jury that a delivery to the carrier was a delivery to the consignee, but still they must find that this was done in the lifetime of Telle, and the jury could not find for appellee unless it found there was an actual delivery of the car during Telle’s lifetime.

As we have already said, the proof shows that it was delivered to appellee, or to Telle, and about one-half of the contents removed before the railroad company notified the Telle Company about any order of stoppage in transitu.

The first contention of appellant is that a verdict should have been instructed for it, because of its right to stoppage in transitu.

“The right of stoppage in trmisitu may be exercised by a seller at any time because of the insolvency of the buyer before the goods came to the possession of the buyer. Any effort to stop after they came to the possession of the buyer would not be stoppage in transitu, and a retaking of the goods after they had been delivered to the buyer, of- course, would not be the exercise of the right of stoppage in transitu. It has been said that the right of stoppage in transitu is an extension of the right to a lien for the price anterior to the actual delivery, which lien the seller can enforce by seizing the goods in the pos-, session of a carrier at any time prior to actual delivery into the possession of the buyer.” Wills v. Glenwood Cotton Mills, 200 Fed. 301.

“The death of the buyer during- the transit, if his estate is insolvent, does not terminate the seller’s right of stoppage, but, if the goods are delivered by the carrier to the administrator, the right is thereby terminated, because the transit is duly ended by such delivery. Where the goods sold on credit aré in the custody of a warehouseman or wharfinger, such custody is looked on as of the nature of a transit, and the seller’s right to stop delivery to the buyer has been upheld.” 24 R. C. L. 131.

The proof in this case shows that the goods were delivered during- the lifetime of the buyer, and the jury was directed to find against the appellee, unless the proof showed that they were delivered during- his lifetime. But, if the goods had been delivered to the administrator, the right would have been terminated, and could not thereafter be exercised by the seller, because, as the authorities say, the transit is duly ended by such delivery. These goods were not in the custody of a warehouseman • or wharfinger. They were in the. custody of the buyer himself, delivered to him, and the car partly unloaded. It is also true that, while insolvency gives the right of stoppage in transitu, the insolvency of the buyer must arise after the sale, or, if it existed at the time of the sale, it must appear that it was not discovered until afterwards by the seller.

The evidence in this case conclusively shows that the seller knew about the insolvency before the goods were purchased. We think it shows beyond any question that the goods were delivered prior to any attempt of the seller to exercise his right of stoppage in transitu. Of course it cannot be contended that goods are in transit after they have been delivered to the buyer, and the right of stoppage in transitu did not exist at the time that the appellant sought to exercise it, for the reason that the goods had already been delivered, and were not at the time in transit.

It is next contended by the appellant that, under § 1198 of Crawford & Moses ’ Digest, it had a right to offset any amount that it might owe as against the indebtedness existing on the part of the deceased to the appellant. The section referred to authorizes a set-off in suits by executors or administrators of debts against their testators or intestates and owing to the defendant at the time of his death. But it does not authorize one who has sold goods to a person to go to the place of business of the buyer and retake the property which has been delivered, and then, when sued for the value of the property so retaken, set-off debts due to the seller in an action of this kind. If that were true, any seller could go to the place of the business of a buyer, after the buyer’s death, and repossess himself of property that had been sold, and then, when sued for the value of the goods so taken, set-off. a debt due- from the deceased.

If the'seller, after the death of the buyer, could retake property that had been delivered during the lifetime of the buyer on the same day, he could retake it the next day, or the next month, or any time thereafter before the statute of limitations prevented it.

These are the only questions raised by appellant in its brief, and the trial court properly submitted every question raised by appellant to the jury. The jury was fully instructed, not only on the question of stoppage in transitu or the time of delivery, but also with reference to accord and satisfaction.

The verdict of the jury is supported by substantial evidence; there is no error in the instructions of the court, and the judgment is therefore affirmed.


author: Mehaffy, J. Hart, C. J.,

text:
    Chambless v. Gentry.
    Opinion delivered December 3, 1928.

      O. A. Graves, for appellant.

      Wm. S. Atkins, for appellee.
   Mehaffy, J.

TJ. A. Gentry, as executor of the estate of J. E. Chambless, deceased, brought this suit against Ida Chambless, widow of J. E. Chambless, deceased, alleging that J. E. Chambless died on the 26th day of May, 1926, leaving- surviving him his widow, Mrs. Ida Chambless, and no children or direct descendants.

The will of J. E. Chambless, omitting the formal parts, is as follows:

“ (1) I direct that all of my just debts shall be paid. (2) I give and devise to my wife, Ida Chambless, my homestead, legally described as the west half of the east half (W%E%) of the northeast quarter of the northwest quarter (NE^NW^) of section thirty-four (34), township twelve (12) south, range twenty-four (24) west, Hempstead County, Arkansas, with all household goods and personal property of every description and kind or used in connection with said homestead, and all moneys, credits and effects belonging to me that may be on deposit or otherwise in the possession of the First National Bank of Hope, Arkansas. (3) The devise first above mentioned to my wife shall not be in lieu of her dower right, but in addition thereto, and I therefore direct that all the rest and residue of my property, whether real, personal or mixed, shall be divided, one-half to my widow, and, having no children or their descendants, the other one-half to be distributed to my collateral heirs, in accordance with the laws of descent and distribution of the -State of Arkansas. (4) If any person entitled to share in my estate at my decease, should be indebted to the estate, it is my will that said sum be deducted from the share that he, or she, would inherit, so that all of my heirs would be treated the same. (5) I appoint and constitute U. A. Gentry sole executor of this my will, and direct that no bond shall be required of him, and that no other action shall be had in the county or probate court in relation to the settlement of said estate than the probating and recording of this my will, and the return of an inventory, appraisement and list of claims of said estate.”

The only question in the case is whether the widow, who is the appellant, was entitled to one-half of the property other than that specifically given to her after paying the debts, or whether she was entitled to one-half of said property free from debts. The chancellor held that she was entitled to the property mentioned in paragraph two of the will, and that she was entitled to one-half of the residue of the property after deducting the debts. Paragraph two gives to the appellant the homestead, describing it, with all household goods and personal property of every description and kind or used in connection with said homestead, and all moneys, credits and effects belonging to the testator that may be on deposit or otherwise in the possession of the First National Bank of Hope, Arkansas. About this paragraph of the will there is no controversy. It is conceded that she takes this property.

In construing a will, it is always the object of the courts to ascertain the intention of the testator, as expressed in the instrument. And the first and most general rule of construction is that the intention which the will itself, either expressly or by implication, declares, shall prevail and be given effect.

“The will therefore, and meaning of the testator, ought before all things to be sought for diligently, and, being found, ought to be observed faithfully. And as to the sacred anchor ought the judge to cleave unto it, pondering not the words but the meaning of the testator. For, although no man be presumed to think otherwise than he speaketh, yet cannot every man utter all that he thinketh, and therefore are his words subject to his meaning. And as the mind is before the voice (for we ‘conceive before we speak), so is it of greater power; for the voice is to the mind as the servant is to the lord.” Sizer’s Pritchard, Law of Wills and Executors, 2 ed., § 384.

“The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to be g-ained from reading the entire will and construing it so as to give effect to every clause and provision therein, if this can be done.” Kelly v. Kelly, 176 Ark. 548, 3 S. W. (2d) 306.

Again, this court said: “The purpose of all rules for the construction of wills is to ascertain and effectuate the intention of the testator; but these rules are ordinarily resorted to only where there are ambiguous, inconsistent or repugnant clauses.” Cavanaugh v. Madden, 175 Ark. 236, 209 S. W. 1; Hughes v. Strickland, 174 Ark. 554, 295 S. W. 722; Hollowoa v. Buck, 174 Ark. 497, 296 S. W. 74.

It will be seen that, under our own decisions, as well as under..the general law, the object of the courts is to ascertain the intention of the testator.

The third paragraph of the will is the provision about which there is a dispute, and it is this paragraph that the court is asked to construe. This paragraph provides:

“The devise first above mentioned to my wife shall not be in lieu of her dower right, but in addition thereto, and I therefore direct that all the rest and residue of my property, whether real, personal or mixed, shall be divided one-half to my widow, and, having no children or their descendants, the other one-half to be distributed to my collateral heirs in accordance with the laws of descent and distribution of the State of Arkansas.”

It is expressly stated that the property given above is not in lieu of dower, but that it is in addition thereto. The testator then directs that all the rest and residue of his property shall be divided, etc. In other words, we think that the testator necessarily meant that she should have the property described in paragraph two of the will, and that she was entitled to dower in the rest of his property.

Under the provisions of § 3536 of Crawford & Moses’ Digest the widow is entitled, as dower, to one-half of the entire estate of the deceased as against collateral heirs.

'Section 3538 of Crawford & Moses’ Digest provides that, if a husband devise and bequeath to his wife any portion of his real estate of which he died seized, it shall be deemed and taken in lieu of dower out of such estate of deceased’s husband, unless such testator shall in his will declare otherwise.

In this case the testator declared otherwise; declared that this was not in lieu of dower. If there had been no will, she would have been entitled to dower, which, in this instance, would be one-half of the entire estate, and she would also be entitled to the homestead and other allowances provided in the statute.

This court has said: “When the widow elects not to take under the will, but under the law, without regard thereto, she takes as though no will had been executed and the husband had died intestate, and is accordingly entitled to dower, homestead, and the other allowances, as provided in said sections of the Digest.” Jameson v. Jameson, 117 Ark. 142, 173 S. W. 851; Bell v. Altheimer, 99 Ark. 527, 138 S. W. 993.

In the instant case the widow took under the will, but the property bequeathed to her in paragraph two was not in lieu of dower, and was evidently not intended in any way to diminish her dower rights. We think therefore that she took a dower interest in the residue after taking the specific property bequeathed to her in paragraph two. This was, we think, the intention of the testator.

If a testator makes two or more gifts to a person, the question frequently arises whether the second gift is intended to be instead of the first gift or in addition thereto. But in the instant case we have the clear, positive statement of the testator that it was not to be in lieu of, but the property bequeathed in paragraph two was in addition to, dower. If property is given in lieu of dower, this simply means an offer to the widow to accept the property under the will or to take dower. She may do either. But, where a testator makes a specific gift and expressly states that it is not in lieu of but in addition to dower, unless there are expressions in the will that indicate the contrary,- it-will be presumed -that the testator intended that the widow should have dower in the residue of the property. But it is said that, since there was a provision in the will for the payment of the debts, it was the intention of the testator to provide for the payment of the debts out of the residue and give the widow one-half after the payment of the debts. This, however, is in conflict with the idea expressed in the statute, that, as against collateral heirs, the widow is entitled to one-half of the property, and that the debts must be paid out of that portion of the property bequeathed to collateral heirs.

It is insisted by appellees, however, that the only construction that can be placed on the will and giving any forcé to paragraph- one is the construction placed on the will by the chancellor. Paragraph one provided for the payment of all just debts. There is no conflict between that clause and paragraph three of the will as herein construed. Of course, if there were not sufficient property to pay the debts without taking a portion of her one-half, the creditors would be permitted to resort to that property. But, if the testator had simply provided that the widow should take under the statute of descent and distribution, that is, take what she was entitled to under the law, the fact that the first paragraph provided for the payment of debts would not affect her interest in any way. In other words, she would take one-half of the property freed from the debts if there was sufficient other property to pay the debts. She would take one-half of the entire property as against collateral heirs.

£"£ Over and over again we have said that the rule in the construction of wills is to give effect to what appears to be the intention of the testator, in view of all other provisions of the will.” Cook v. Worthington, 116 Ark. 328, 173 S. W. 395. See Campbell v. Campbell, 13 Ark. 513; Cockrill v. Armstrong, 31 Ark. 580; Bloom v. Strauss, 73 Ark. 58, 84 S. W. 511; Parker v. Wilson, 98 Ark. 561, 136 S. W. 981; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782, Ann. Cas. 1914D, 712; Webb v. Webb, 111 Ark. 54, 163 S. W. 1167.

It has been said that, if a gift is made to the testator’s wife for the interest which the law had given her, and, in addition thereto, a given house for a limited time, the latter gift is cumulative to the first. In this instance the testator evidently intended to give the widow one-half of all his property other than that mentioned in paragraph two of the will, and to give her this in addition thereto, because he expressly states that the property specified in paragraph two is in addition to dower. And it makes no difference whether he gave her dower first and then the specific gift, or gave it as he did in this will. There is no conflict between any of the clauses of the will, and our conclusion is that, when the will is construed as a whole, it was the intention of the testator to give the widow dower in all his property, except that mentioned in paragraph two, and to give her that property in addition to dower.

Testator cannot deprive his creditors of property out of which they may enforce payment of their debts by disposing of it by will in a manner inconsistent with the rights of the creditors. But it is said that there is a conflict of authority where the question is presented where the testator has bequeathed property to his wife in lieu of her dower, and she has elected to accept such provision. It is not important in this case as to creditors, but the intention of the testator is important as between the widow and the collateral heirs. The testator meant that his debts should be paid. He had a right to determine the property that should be used to pay his debts, as long as he set aside enough property for the purpose of paying the debts.

In this case the appellant is the widow. The other beneficiaries are collateral heirs, and the question to be determined is, did the testator intend to give the widow one-half of the property and that the debts should be paid out of the one-half that went to the collateral heirs, or did he intend that the debts should be paid out of the entire residue of the property and the wife then take one-half ?

The fact that the'widow was entitled to one-half of the entire property as dower as against collateral heirs, and the fact that the testator expressly stated that the property mentioned in paragraph two was in addition to dower and not in lieu thereof, evidences an intention to give the widow the property free from debts and that the debts and expenses of administration should be paid out of that portion of the estate that goes to the collateral heirs. This is the most natural and reasonable thing for him to do, and, as gathered from the entire will, we think his intention was to give the widow her dower free from the debts.

The decree is therefore reversed, and remanded with directions to enter a decree in accordance with this opinion.

Hart, C. J.,

(dissenting). I think that the majority opinion construes the will contrary to the expressed intention of the testator. In § 3 of the will he had in mind to leave his property in accordance with the provisions of § 3536 of -Crawford & Moses’ Digest, relating1 to dower where there are no children, and in addition to give his widow the homestead in fee instead of for life, and to give her absolutely his household goods and personal property used in connection with the house, and all his moneys in bank, absolutely, under the provisions of § 2 of the will, instead of a dower interest therein under the law.

McHaney, J., concurs in dissent.


author: McHaney, J.

text:
    American Insurance Company v. Austin.
    Opinion delivered December 3, 1928.

      Lewis R. Featherstone and McRae & Tompkins, for appellant.

      U. A. Gentry, Randolph P. Hamby and Coleman & Riddick, for appellee.
   McHaney, J.

This is an action upon a fire insurance policy issued by appellant to appellee, dated the 15th day of February, 1926, insuring appellee’s residence in the sum of $1,500 and his personal property located therein in the sum of $500,. for a period of five years from the 13th day of February, 1926, to the 13th day of February, 1931, for the total premium of $162, payable $32.40 cash with the application, and $3-2.40 payable on the first day of February each and every- year thereafter, for which a note was executed in the total sum of $129.60.

Appellant’s local agent at Prescott, Arkansas, took appellee’s application for the policy on the 12th day of February, 1926, and received the first year’s premium therefor on said date, together with the note for the sum aforesaid, payable as stated, and forwarded same to appellant’s general agent at Memphis, Tennessee. The policy issued contained the following provisions :

“In consideration of $32.40 paid and the payment of installments when ¡due on an installmeint note of $129.60 due and payable as follows: $32.40 on the 1st day of each February, J.927, 1928,1929 and 1930 respectively, does insure,” etc. * * * “No agent or employee of this company, or other person or persons, except an officer, or the Southern Farm Department manager, in writing, shall have power or authority to waive or alter any of the terms and conditions of this policy. * * * It is understood and expressly agreed that the company shall not be liable for any loss or damage that may occur to any property herein mentioned while any installment of the installment note given for premiums on this policy remains past due and unpaid,” etc.

The installment note contained this provision: “And'it is hereby agreed that, in case of nonpayment of either of the installments herein mentioned at maturity, this company shall not be liable for loss during such default, and the policy for which this note is given shall lapse until payment is made to the company at Memphis, Tennessee.”

The policy contained this further provision: “This policy shall not be valid until countersigned by the duly authorized agent.” It was countersigned by the agent at Prescott, Arkansas, but the date thereof is not definitely established by the evidence. The counter-signature bore the date of February 15, 1926, but the proof showed that this date was put on the policy in the Memphis office. The agent at Prescott was not able to state the definite date it was countersigned. The uncontradicted proof shows that it was not received by appellee until February 22, the policy being mailed him from Prescott, to his postoffice address at Drab, Arkansas, about twelve miles from Prescott, and would, if delivered in ordinary course, have reached appellee the day following its mailing.

The first installment on the note became due, according to the terms of the note, on February 1,1927, and was not paid when due, and on the 16th of said month a fire occurred which totally destroyed appellee’s property. He then called upon appellant’s agent in Prescott, and advised him of the loss, delivered him the policy, and the agent notified appellant’s general agent at'Memphis, who declined to recognize the claim and to pay the loss, for the reason that said installment on the note had not been paid. This was within the time allowed appellee in which to make proof of loss. The case was submitted to the jury, under instructions authorizing' a recovery b3r appellee if they should find that appellant waived proof of loss by denying* liability within the time, and that the loss occurred within one year from the date said policy was countersigned by the local agent at Prescott, Arkansas, and that appellee had paid one year’s premium on said policy; otherwise they were to find for the defendant. There was a verdict and judgment for appellee in the sum of $2,000 at 6 per cent, interest from May 18, 1927, 12 per cent, penalty, and $250 attornej^’s fee.

Appellant seeks to reverse the judgment on two grounds: First, that the policy was suspended for failure to pay the installment due on premium note before the loss occurred; and second, that the failure to furnish proof of loss avoided the policy.

It will not become necessary to decide the second proposition above stated, in view of the disposition we make of the first. The question is, did the failure of appellee to pay the installment of $32.40 on February 1, 1927, suspend the operation of the policy until it was paid, and, not having* been paid prior to the loss, relieve appellant of liability? It is true that there is a slight conflict between that provision in the policy providing* that appellant insured the property of appellee “for the term of five years from the 13th day of February, 1926, to the 13th day of February, 1931,” and the other provision in the policy that “this policy shall, not be valid until countersigned by the duly authorized agent.” The application was taken on the 12th clay of February, mailed to the general agent in Memphis, Tennessee, who issued the policy, dating it the 13th day of February, and also put in the date of the counter-signature as of the 15th, assuming, no doubt, that it would take until the 15th for it to reach the local agent in Prescott, and be countersigned in the ordinary course of business, as the 13th was. on Saturday. A¥hile the local agent at Prescott did not remember the actual date of countersigning’ the policy, it is quite probable that it may have been countersigned on the 15th, and deposited in the mail on said date for delivery to appellee. But, regardless of Avhether it was countersigned on that date or at a later date, we are of the opinion that, by the plain provision of the policy and the note, the policy stood suspended from February 1, 1927, until the installment due on that date was paid. The cash payment made on the premium at the time the application was taken, although one-fifth of the premium on the policy for five years, did not constitute a payment of the premium for one year’s insurance, but only a partial payment of a premium on a five-year policy of insurance.

The undertaking of appellant in this case was not to insure appellee’s property from year to year, but for' a period of five years, on the condition that he- pay one-fifth of the premium for five years in cash, and the balance at- stated intervals mentioned in the note. Fire insurance policies frequently contain provisions to this effect, and the courts have almost unanimously sustained that construction we are now placing on the policy, which suspends liability thereon in case of and during default in the payment of any installment of premium. This court has heretofore held that provisions of this kind are valid and enforceable, and that, under such conditions, failure to pay a premium note, or a note given for a part of the premium when it is due, constitutes a complete defense to an action upon a policy to recover for a loss occurring while such premium note is overdue and unpaid.

In American Ins. Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213, Mr. Justice Battle, speaking for the court, said: “The effect of so much of the policy and of the notes given for the premium as provides that the policy shall be void during the time the notes for the premium, or any part thereof, shall remain unpaid after they become due and payable until they are fully paid, was to suspend the operation of the policy during the time the notes or either of them remained overdue and unpaid, and to relieve the insurer from any liability for any loss which may occur during the continuance of the default.” The oases of Jefferson Mutual Ins. Co. v. Murry, 74 Ark. 507, 86 S. W. 813, and Fidelity Mutual Ins. Co. v. Bussell, 75 Ark. 25, 86 S. W. 814, are cited in support of the above declaration.

In the Jefferson Mutual case cited by Mr. Justice Battle it was held, quoting the syllabus: “Where a policy of fire insurance stipulated that it should be void during the time the policy note, or any part thereof, should remain unpaid after becoming due, payment of such note after default revives the policy and makes it take effect from the time of payment, but the insurer is relieved from liability for any loss occurring during the continuance of the default.”

' In the Fidelity Mutual case, above cited, it was held that,-under provisions in policy and note heretofore discussed, failure to pay ..the note as stipulated avoids the policy, and further holds that, if the application on which the policy is based or the policy contains a provision that a local agent cannot waive a forfeiture for nonpayment of the premium, such local agent has no power to extend the time of the payment of the premium note, nor to waive the forfeiture for failure to pay it.

McCullough v. Home Insurance Co., 118 Tenn. 263, 100 S. W. 104, 12 Ann. Cas. 626, is a case directly in point with the case at bar. In that case it was held that, “a policy of fire insurance, issued on March 19 for a period of five years, for a stated premium, one-fifth of which is paid in cash and the remainder of which, adeording to stipulation, is to be paid in four annual installments, due upon the first da.y of January of each succeeding year, with a provision that the company shall- not be liable for any loss that may occur while any installment of the premium remains past due 'and unpaid, cannot be construed as a yearly contract which the payment of each installment of the premium keeps in force for a full year ending March 19, but is for an entire term of five years-, and becomes immediately suspended by failure to pay an installment of premium on January 1.”

A great many cases are cited in support thereof in the note to the above case in 12 Ann. Cas., and among them is Blackerby v. Continental Ins. Co., 83 Ky. 574, where the court said:

“It is well settled * * * that a condition like this one in a policy of insurance is valid, and that, in case of a breach of it by the insured, without a valid excuse, the obligation of the insurer is at an end, although the premium note of the insured remains binding upon him. The parties have the right to make their own contract, and to fix its terms and conditions; and, unless they are illegal or in violation of public policy, they will be upheld. In this instance they could have agreed upon a higher rate of premium; and they had an equal right to agree that the period of time to .be covered by the insurance should become shorter upon some contingency, without altering the amount of the premium; especially would this be reasonable and just as to any contingency which the legal duty of the insured requires him to, and which he can, prevent. Any other rule would require the insurer to carry the risk, although the insured was at the same time violating the contract without excuse; and to require the company to waive its right to the premium, before it could insist upon a release from the risk, brought about by the failure of the insured to perform his part of a contract executory upon both sides, would establish a rule in favor of the latter resting upon his own default and a violation of his legal duty. If he pays the entire premium in advance, or fails to pay it ad diem, or at maturity, as lie has contracted, the law will not relieve him when the forfeiture of the policy arises from his own neglect. It is vithl to the existence of fire insurance companies, and the interest of both the stockholders and policyholders, that the patrons should be prompt in the payment of their premiums; and, upon the other hand, the insurer should be held to a just performance of the contract; but if the insured, without sufficient excuse, has failed to comply with the conditions which constituted the consideration for the undertaking of the company, his complaint, in case of a subsequent loss, cannot be heard. If he neglects to pay his note without a valid excuse, it is a violation of his plain duty, and if a. subsequent loss occurs, he has no right, upon any legal or equitable principle, to reimbursement.”

Such was the effect of the holding in Hartford Fire Ins. Co. v. Jones, 215 Ala. 488, 110 So. 30, citing Lett v. Liverpool & London & Globe. Co., 213 Ala. 448, 105 So. 553; Home Insurance Co. of New York v. McFarland, 142 Miss. 558, 107 So. 754. The latter case cites Robinson v. Insurance Co., 51 Ark. 441, 11 S. W. 686.

In 3rd Cooley’s Briefs on Insurance,- 2 ed., 2903, it is said: “Policies of insurance usually contain a condition that a failure to pay any premium or note given therefor when due, or within a specified time thereafter, shall render the policy void. Such condition is reasonable and valid, and consequently binding on the insured. ’ ’ Citing a large number of cases. The cases cited on this and subsequent pages of this work support the principle heretofore stated.

Appellee cites a number of life insurance cases to support the theory on which the case was submitted to the jury, but we do not think these life insurance cases are in point in a ease of this kind, and we find a very substantial division of authorities, even in the life insurance cases, but no substantial division of authority on fire insurance cases. It is not contended by appellee, in his brief here, that the local agent at Prescott had authority io waive the payment of the premium when due, or to waive a forfeiture of the policy for nonpayment. Indeed, we think he had no such power, and this too is supported by the authorities heretofore cited.

Having reached the conclusion that the policy was suspended by failure to pay the installment premium on February 1, 1927, according to the tenor of the note, it follows that there was no liability for a loss occurring on February 16, with the note still in default. The judgment will therefore be reversed, and the cause dismissed.


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    Leslie Lumber & Supply Company v. Lawrence.
    Opinion delivered December 3, 1928.

      Caraway, Baker & Gautney and Cook & Trice,.for appellant.

      E. P. Toney and Owens & Ehrman, for appellee.

      Cockrill & Armistead, amici curiae.

   McHaney, J.

Appellant instituted this action in the Chicot Chancery Court to establish the partnership liability of appellees, Lawrence and Horton, in the performance of a contract with Chicot County Drainage District, upon a debt of $2,050.34, and to recover said sum against appellee, TJ. S. Fidelity & Guaranty Company, as surety on the contractor’s bond.

We will not set out the facts nor'discuss the law relative to the alleged partnership relation, nor determine whether that relationship existed between said appellees, for it becomes unnecessary, in view of the disposition we make of the liability on the bond. Lawrence was the principal contractor, so denominated in the contract with the district and in the bond. Horton, for a consideration, agreed to finance Lawrence, who, being unable to give the necessary bond without indemnity, procured Horton to indemnify the IT. S. Fidelity & Guaranty Company, and it executed the bond, conditioned as follows:

‘ ‘ The condition of this obligation is such that, if the said contractor shall pay all persons, firms or corporations who perform labor or furnish equipment, supplies, and material for use in the work thereunder, shall satisfy all claims against the district for damages to life, limb or property, or any of his agents or employees, and shall satisfy all suits or claims brought against the district arising from the violation of any law, ordinance, regulation, order or decree on the part of the contractor or any of his agents or employees; or from any infringements or alleged infringements of patents in the work under said contract; or howsoever originating from any of the operations under said contract; and shall fully indemnify and save harmless the district from all cost and damage which it may suffer by reason of failure to do - so, and shall fully reimburse and repay the district all outlay and expense which the district may incur in making good any such default, and in all other particulars-shall faithfully perform the contract on his part according to' all the terms, covenants and conditions thereof and within the time specified therein, then this obligation shall be void; otherwise to remain in full force and effect.”

The other pertinent provision of thé’ bond is as follows:

“Third. No right of action shall accrue hereunder to or for the use or benefit of any one other than the district, and the district’s rights hereunder may not be assigned without the written consent of the surety.”

• The court entered a decree denying liability against Horton, holding that he was not a partner, and that the bonding company was not liable under its bond. Judgment was rendered against Lawrence, and appellant’s complaint was dismissed for want of equity as to Horton and the U. S. Fidelity & Guaranty Company.

We think the court erred in not holding the bonding company liable as surety for Lawrence. The condition of the bond is “that, if the said contractor shall pay all persons, firms or corporations, who perform labor or furnish equipment, supplies and material for use in the work thereunder,” etc. This condition is, in all material respects, the same as that in Mansfield Lumber Co. v. National Surety Co., 176 Ark. 1035, 5 S. W. (2d) 294. In that’oase the condition in the bond was: “Now therefore, * * * if the principal * * * shall pay all persons who have contracts directly with the principal for labor or materials, then this obligation shall be null and void; otherwise it shall remain in full force and effect. ’ ’ It was there held that, even though the bond might be held not to be a statutory bond because not filed with and approved by the circuit clerk as provided by § 6916, C. & M. Digest, still, by reason of the language above quoted, “its provisions and conditions are broad enough to cover the liability imposed by the statute had it been executed as the statute requires.” So here, the language used, “that, if the skid contractor shall pay all persons, firms or corporations who perform labor or furnish equipment, supplies and material for use in the work,” is just as broad (if not broader) as that used in § 6913 of the Digest, which requires a bond conditioned that the contractor “shall pay all indebtedness for labor and material furnished in the construction of said public building, or in making said public improvements.” The only reason this bond is not a statutory bond, if it is not, which we do not decide, is that' it was not filed in the office of the circuit clerk, as provided by § -6914. We therefore hold that this case, in this respect, is ruled by Mansfield Lbr. Co. v. National Surety Co., supra, and that the bond executed by appellee, U. S. Fidelity & Guaranty Company, was not executed for the sole benefit of the drainage district, but for “all persons, firms or corporations who perform labor .or furnish equipment, supplies and material for use in the work.” Therefore such persons may sue on the bond, on that principle of law “that, when a promise is made to one, upon a sufficient consideration, for the benefit of another, the beneficiary may sue the promisor for a breach of his promise.” Mansfield Lumber Co. v. National Surety Co., supra; Stewart-McGehee Const. Co. v. Brewster, 171 Ark. 197, 284 S. W. 53 ; unless the third clause in the bond heretofore quoted is a bar to such actions, to- the effect that only the district may sue on the bond. This provision is plainly in conflict with the condition in the bond just discussed and with the law applicable thereto as stated. By the first condition the bond company has provided protection for a class of persons who, under the law, may sue, yet, by the last provision, it is provided they may not sue. Both cannot stand. Surety contracts of this character, with a paid surety, are regarded as in the nature of insurance contracts, and will be most strongly construed against the surety. Union Indemnity Co. v. Forgey & Hanson, 174 Ark. 1110, 1115, 298 S. W. 1032, and cases cited. Applying this rule to the contract in question, the third clause in the bond must give way to the first, and be given no force or effect.

The last proposition necessary for consideration is, whether the bond is liable only for material actually entering into the work — such items as might be the basis of a mechanic’a lien. We answer this question in the negative, as does the bond itself. It protected all persons who furnished supplies and material “for use in the work,” and not merely material actually entering into the work. Therefore all material and supplies furnished the contrae.tor “for use in the work,” or reasonably necessary to accomplish the purpose of the work, and which were delivered to the contractor for such use and purpose, are covered by the bond. There is no provision in the statute under which the work was being done giving laborers and materialmen a lien, and could not very well have been. For this reason the law requires the contractor to give a bond. The decisions of this court on bonds given to prevent liens on private property cannot 'be controlling here on this question, as this bond covers all labor and material done and furnished “for use in the work,” and we are dealing with it on the assumption that it is not a statutory bond. Under this construction of the language of the bond, material furnished for bunk-houses, tent forms, cement sheds, a shop, and a commissary, would be covered by the bond if they were reasonably necessary for use in prosecuting the work, as would also cement and other material fabricated for this work and delivered to the contractor therefor, although not actually used therein because the work was stopped by the board, or for any other reason not due to the material furnisher.

By the plain provisions in the bond in suit appellees, Lawrence, the contractor, and his surety, the U. S. Fidelity & (Guaranty Company, are bound to appellant as herein stated. The decree will therefore be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion, and for such further proceedings according to law and the principles of equity as are not inconsistent herewith.


author: Hart, C. J.,

text:
    Jemell v. St. Louis Southwestern Railway Company.
    Opinion delivered December 10, 1928.

      Trimble & Trimble and Bogle & Sharp, for appellant.

      A. H. Kiskaddon, Carter, Jones & Turney, Charles A. Walls and N. F. Lamb, for appellee.
   Hart, C. J.,

(after stating the facts). We need not consider the alleged errors of the plaintiff with regard to the giving and refusing of instructions, for the reason that the court should have directed a verdict in favor of the defendant.

Counsel for the plaintiff seek a reversal of the judgment on the authority of Adler v. St. Louis Southwestern Ry. Co., 171 Ark. 419, 284 S. W. 729; Kelley v. De Queen & Eastern Ry. Co., 174 Ark. 1000, 298 S. W. 347, and other cases of like character which have construed § 8575 of 'Crawford & Moses’ Digest, which provides, in all suits against railroads for personal injury caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured is of less degree than the negligence of the employees of the railroad company. We do not think the cases referred to have any application under the facts in the present case. In all of them there was a disputed question of fact as to whether the proper lookout required hy the statute was kept, and whether or not the lack of keeping a proper lookout was the proximate cause of the accident, and therefore constituted negligence on the part of the company which could not bar a recovery notwithstanding the jury might also find that the injured person was guilty of contributory negligence.

In the case at bar the fireman, who was keeping a lookout on the engine of the passenger train, testified that he saw the plaintiff drive up to the edge of the ties at the public crossing where the accident occurred, and then back down the grade again. He then supposed that the plaintiff would not attempt to run up the grade again until after the train had passed. The plaintiff admitted that he did not look for the approach of the passenger train, and admitted that he could have seen it if he had looked. The track was straight at that point, and the reason that the .plaintiff did not see the approaching train was that he did not look. When he admits that he did not look, when, if he had looked, he could have stopped his car in time to have avoided the accident, he cannot recover, because his own negligence directly-contributed to the happening of the accident, and there was no negligence whatever on the part of the defendant, because the fireman was justified, under the circumstances, in believing that the defendant, when he backed his car down the grade just before the accident, would not drive up1 the grade again in front of a rapidly approaching train. It was the duty of the plaintiff to use his sense of sight to avoid injury to himself when he was about to go upon the public crossing, which is admittedly a place of danger, where he could have seen an approaching train if he had looked for it. The time to look for his own protection was just before going up the grade upon the crossing. His own failure to observe this precaution was the proximate cause of the accident. As we have already seen, the fireman saw him approaching the crossing and then back down the grade just before the accident occurred. The fireman, under the' circumstances, was justified in believing that the plaintiff would not again attempt to go upon the public crossing until after the train had passed.

The facts bring the case within- the rule announced in St. Louis-San Francisco Ry. Co. v. McClinton, ante, p. 73, 9 S. W. (2d) 1060. As said in that case, while there is a presumption of negligence arising out of the fact that the plaintiff was injured by the operation of the train, where the undisputed evidence is such that it must necessarily appear that the plaintiff’s negligence was greater than that of the operator of the train, a recovery is not authorized by § 8575 of Crawford & Moses’ Digest.

It follows that, if the court should have directed a verdict for the defendant, no error prejudicial to the rights of the plaintiff was committed in giving or refusing* instructions. Therefore the judgment will be affirmed.


text:
    Kirk v. Jones.
    Opinion delivered December 10, 1928.

      Culbert L. Pearce, for appellant.

      L. A. Hardin, for appellee.
   Hart, C. J.,

(after stating the facts). Minors are the wards of chancery courts, and it is the duty of such courts to make any orders that would properly safeguard their rights. This is a habeas corpus proceedings and the court had the authority to grant the custody of the child to the aunt, provided it finds that the father had forfeited his rights thereto. Three parties are interested in the custody of minor children, the State, the parents, and the child itself. While the right of the father to the custody of his child is paramount, this is denied in many cases, and, regard being had for the welfare of the child, its custody has been placed elsewhere. Verser v. Ford, 37 Ark. 30; Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Coulter v. Sypert, 78 Ark. 193, 95 S. W. 457; and Clark v. White, 102 Ark. 93, 143 S. W. 587; Ann. Cas. 1914A, 739. Other cases from this court and from many other courts of last resort to the same effect will be found cited in a case-note to Ann. Cas. 1914A, p. 748.

The permanent 'wellbeing of the child more than its present enjoyment is to be considered as of prime importance. No1 hard and fast rule can be laid down on the subject, and each case must be governed to a large extent by its own particular facts.

Tested by this rule, we think that the facts bring the case within an exception to the general rule, and that it would be best for the permanent welfare of the child that it should be in the custody of the sister of the father. In reaching this conclusion we are not unmindful that the father is married again and that his present home is a fit and suitable place for the child. Undoubtedly, however, this is true at the home of his sister. She kept the child for two years after the death of its mother, without any hope or expectation of reward. She loved and cared for it .just as she did for her own children, and never asked its father to make any contribution to its support. It is true that he testified that he contributed more to its support than he received from the United States Government for the support of the child, but his testimony is not corroborated by the other testimony. He admitted that he could not make any statement of the expenses which he had incurred. The record of the Veterans’ Bureau shows that, from the date of the death of the mother of the child, he was allowed and received $20 per month for the support of the child. His sister testified that he never contributed anything to the support of the child except about $12 in money and a few cheap suits of clothes, worth a dollar each. He testified that he visited the child every two weeks, and, if he did so, he must have known that his sister paid the expenses of the operation upon the child. He never offered to pay her back any of this money until after the present suit was instituted. The amount of money he received from the government was based upon the theory that he had the care and custody of the child. During all the time he was collecting this money, the child was in the care and custody of the sister, and he never contributed any substantial sum towards its support. He never lived with his first wife -after the birth of the child, and never gave any material contribution to her support and the support of the child. As far as the record discloses, the only sum contributed by him was the apportionment allowed by the United States Government when the wife is living separate and apart from her husband and has the custody of their minor child. Thus it will be seen that this apportionment, made for the benefit of the wife and child, was kept by the father after the death of the mother, on the theory that he had regained the care and custody of the child. The probabilities are that, if he ceased to receive any compensation from the United States, he would cease to provide for the ohild, and that he might leave it to others to take care of his child just as he did when it came into the world.

On the other hand, the sister has -shown her interest in the welfare of the child and has demonstrated that she would care- for it just as she would for her own, regardless of whether or not she received the compensation apportioned for it by the government.

Therefore the decree will be reversed, and the cause remanded with directions to the -chancery -court to award the custody of the child to Mrs. Laura Kirk, with a right of the father to visit it at all proper times. It is so ordered.