author: Humphreys, J.

text:
    Loewe v. Shook.
    Opinion delivered June 14, 1926.
    1. Parent and child — custody of child. — As between a mother and grandparents, the mother is entitled to the custody of her child, unless incompetent or unfit, because of poverty or depravity, to provide the physical comforts and moral training essential to its life and well-being.
    2. Habeas corpus — custody of child — evidence.—In a proceeding of habeas corpus, evidence held to sustain an award of the custody of a three-year-old girl to her mother rather than to her grandparents.
    3. Infants — protection of courts. — In awarding the custody of a child to its mother rather than to its grandparents, chancery retains jurisdiction to restore the child to its grandparents if it becomes necessary for the best interest of the child to do so.
    Certiorari to Drew Chancery Court; E. O. Hammock, Chancellor;
    affirmed.

      Wilson & Norrell, for appellant.

      Poff & Smith, for appellee.
   Humphreys, J.

This case is before us on review to determine the correctness of an order of the chancellor of the Second Chancery District awarding the custody of a three-year-old girl to her mother, Mrs. Thelma Shook, in a contest between the child’s grandparents, H. C. and Minnie Loewe, and herself. The contest was instituted by Thelma Shook, who petitioned and obtained a writ of .habeas corpus from said chancellor for the custody of her child, Virginia Bernice Loewe, against the grandparents named above and the child’s two uncles, Oscar and Ted Loewe, who were residing with the grandparents, their father and mother. Mrs Shook’s first husband was Arthur Loewe, a son of H. C. and Minnie Loewe. After their marriage they resided with his parents, where the child was born. Mrs. Shook nursed and cared for the child while living -with- his parents. They subsequently moved to a farm in Kansas, where they had resided only four months when he died. After her husband’s death Mrs. Shook came back to Arkansas, going first to her sister, then to her parents, then back to her sister, then to the Loewes’, and then back to her parents, taking the child from place to place with her. She remained with her parents the entire summer until some time in November, 1924. In February, 1925, she went to work as a saleslady at McGehee, leaving the child with the Loewes. She went from there to Tripp Junction, where she worked in a filling station until April, 1925, at which time she married her present husband, Dalton Shook, who is in the employ of the government making $175 to $200 a month. After marrying, they lived for a while with Mr. Shook’s mother, then moved to Halley, where they are keeping house. Mrs. Shook visited the child during the six months she was working prior to her second marriage. After marrying Shook, she got her child and kept it for about two weeks. She then became ill, and requested the Loewes to keep the child until she got well, at which time they refused to give it to iier. This suit followed.

There can be no question in the law that, as between a mother and grandparents, the mother is entitled to the custody of her child, “unless incompetent or unfit, because of poverty or depravity, to provide the physical comforts and moral training essential to the life and well-being of her child.” Washaw v. Gimble, 50 Ark. 351; Baker v. Durham, 95 Ark. 335.

Appellants’ contention for a reversal of the order is that Mrs. Shook is not a fit person to have the custody of her child. In support of this contention, learned counsel for appellants have called our attention to the testimony tending to show that Mrs. Shook was an immoral woman. Practically all of the testimony tending to show this fact related to her conduct prior to her marriage to Dalton Shook and while she lived with him. Her reputation for immorality .was based largely upon the fact that she went riding at nights during that period with a married man or two. There is nothing in the record of consequence tending to show that she has continued this alleged conduct or that she has been guilty of any indiscretion since she married Dalton Shook. The child is barely four years of age at this time, and, if her mother is conducting herself discreetly, we can see no good reason why she should be deprived of the joy of parental relationship. If she is leading and will continue to lead a righteous life, the pleasures incident to motherhood should be accorded her by the courts. According to the record, she is not lacking in affection for her child. She is keeping house in Halley, and her husband is amply able and willing to maintain, support, and educate the child. We are unable to discern anything in the record, to indicate that the present and future welfare of the child will be imperiled by placing it under the care and control of the respondents. If the welfare of the child should at any time in the future be jeopardized by the misconduct of the mother, or for any other reason'it becomes necessary for the best interest of the infant to restore its custody to the grandparents, the chancery court always has jurisdiction in such matters.

The order is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Moore v. Moore.
    Opinion delivered June 14, 1926.
    1. Appeal and error — matters not shown by record — presumptions — Where a decree of divorce recited that evidence not incorporated in the transcript was heard, and found that defendant had due notiee, the Supreme Court will presume that the trial court found from evidence not incorporated in the record that summons was properly served, though the sheriff’s return did not show proper service.
    2. Appeal and error — conflict between decree and clerk’s certificate. — Where there is a conflict between the recitals of the decree and the certificate of the clerk to the transcript, the recitals of the decree must prevail.
    3. Appeal and error — matters not shown by record — presumption, — Where a decree of divorce recited that other evidence than that contained in the transcript was heard by the court, the Supreme Court will presume that such other evidence was' sufficient to support the decree. '
    Appeal from Calhoun Chancery Court; J, Y. Stevens, Chancellor;
    affirmed.
    : C. L. Poole, for appellant.

      John Baxter and J. S. McKnight, for-appellee.
   Humphreys, J.

Appellee brought a suit for divorcé' against appellant in the chancery court of' Calhoun County, alleging as a ground therefor’’that she offered' him such indignities as to.render his life with her miserable and his condition intolerable. . She did not appear. in person or, by attorney in the trial of the, cause,' and he obtained the following decree:

“Now on this 17th day of February, 1925, a regular day of the February term of the Calhoun Chancery Court, this cause having been regularly reached on the docket and the plaintiff, J. H. Moore, appearing in person and by his attorney of record, J. S. McKnight, and the defendant, having been called three times at the bar of the court, failed to plead in any manner, but made default, and the court, after hearing the depositions of the plaintiff, Floyd Newton, Lovisa Kitchens and other evidence, and being well and sufficiently advised in the premises, finds.that the defendant had due and legal notice of the pendency of this suit for the time and in the manner required 'by law, and that the allegations of-the plaintiff’s complaint, alleging indignities to the plaintiff, have been fully proved, and that he is entitled to a divorce. It is therefore considered, ordered, adjudged and decreed- by the court that the bonds of matrimony heretofore existing between the plaintiff and defendant be canceled, set aside, and held for naught, and that the plaintiff be restored to his rights as a single man.”

Subsequent to the rendition of the decree an appeal was prayed and granted out of this court. A reversal of the decree is sought upon two grounds: first, that there was not sufficient service upon her; and second, that the evidence was insufficient to support a decree dissolving the bonds of matrimony between the parties.

(1). The contention, is made that the service was fatally’defective because the return of the sheriff failed to "show that a copy of thé summons was left at appellant’s usual’place of abode with some member of the family over fifteen years of age, as provided in §-1144 of Crawford & Moses’ Digest. The return of the sheriff is as follows:

“Sheriee’s Return.
“State of Arkansas, County of...............’_________._________’_______....
“On the 22d day of January, 1925, I have duly served the within writ by delivering a copy, .and stating the substance thereof, to the within named, by leaving a copy of same with Mrs. Moore’s daughter, with whom she lived, as I am herein commanded.
“I. C. Abbott, Sheriff.”

Although the return on its face is deficient, the decree recites that .other testimony than that contained' in the transcript was heard, and “that the .defendant (appellant) had due and legal notice of the pendency of the suit for the time and in the manner required by law.” Under a well established rule of this court, we follow the recitals in the decree when there is a conflict between the recitals therein and the certificate of the clerk to the transcript. Dierks Lbr. & Coal Co. v. Cunningham, 81 Ark. 427; Toll v. Toll, 156 Ark. 135. According to the certificáte of’ the clerk, no evidence was introduced to supply the defect in the return, but the recitals of the decree show that the court made its-findings from evidence introduced and not incorporated in the transcript. Under the rule aforesaid we must presume that the evidence showed that the summons was served upon appellant by leaving a copy thereof at her usual place of abode with a member of her family over fifteen years of age, and that the court treated the return as amended to conform to the proof as a basis for its finding that appellant had due and legal notice of the pendency of the suit for the time and in the manner required by law.

(2). It is unnecessary to set out and analyze the testimony contained in the transcript to ascertain whether it is sufficient to sustain the finding of the court to the effect that appellant had offered such indignities to appellee as to render his condition in life intolerable, for the decree recites that other evidence than that contained in the transcript was heard by the court as a basis for its finding. We must indulge the presumption that the other evidence referred to was sufficient to support the decree dissolving the bonds of matrimony between the parties.

No error appearing, the decree is affirmed.


text:
    Berg v. State.
    Opinion delivered June 14, 1926.
    Forgery — insufficiency of evidence. — Proof merely that defendant filed with the recorder a deed to himself in which a consideration of $100' is recited, whereas the same deed, reciting a consideration of $1,000, was filed for record a year previously, was insufficient to show a forgery of the deed, since the alteration might have been made by the grantor or by some authorized person.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      E. D. Chastain and Cravens & Cravens, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Crawford County for the crime of forging a deed and uttering the forged instrument. The first count in the indictment charged the forgery and the second uttering the deed.

On a trial of the cause, appellant was acquitted of the forgery but convicted of uttering the instrument, and adjudged to serve a term of two years in the State Penitentiary therefor, from which is this appeal.

A number of alleged errors are assigned for the reversal of the judgment, but the first being all-sufficient to support a reversal of the judgment, we need not advert to the others. The first is the alleged insufficiency of the evidence to support the verdict and judgment. The theory of the State was that appellant forged a warranty deed from Joseph Powell to himself to certain real estate in said county belonging to W. A. Smith, H. G. Seiger and J. W. Smith, for record in the circuit clerk’s office, with intent- to cheat, defraud, and obtain possession of their said property. The circumstances upon which the State relied for a conviction were that, on July 9, 1925, appellant filed a deed with W. A. Bushmiaer, clerk of the circuit court of Crawford County and ex-officio recorder in and for said county, to said real estate from Joseph Powell to appellant, in which a consideration of $100 was recited; whereas the same deed was presented for record a year prior to said,date, which, at that time, recited a consideration of $1,000. The record contains no evidence, other than this • circumstance, in an attempt to prove that the deed was .forged. Por all that appears, the deed had been executed and acknowledged by Joseph Powell and was in every respect genuine. If the consideration had been reduced, there was nothing to show that it was not changed by Joseph Powell, the grantor, or if not changed by him, that it was changed by some one authorized by him to . do so. We do not think the circumstances relied upon by the State are sufficient to show that the deed in question was a forgery, and, unless the instrument was forged; the uttering or publishing of same was not a crime. -The court should have' peremptorily instructed a verdict of not guilty.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    Oliver Construction Company v. Union Trust Company.
    Opinion delivered June 14, 1926.
    1. Evidence} — varying writing by parol. — Where an order drawn by a subcontractor on a construction company to pay a sum of money direct to a trust company named upon the sole condition that a certain estimate due to the drawer at a named date should be sufficient to cover the order, testimony of the presiden}; of the construction company that the acceptance was upon a further condition that the amount named should be due to' the drawer after paying the wages of laborers employed under the drawer, was properly excluded.
    2. Assignments — operation and effect. — Where an order drawn, on a construction company to pay a trust company named a sum of money out of an estimate due the drawer on a named date and the drawee’s acceptance amounted to an absolute agreement to pay the sum out of the estimate if it amounted to the face of the order, and, under the undisputed evidence, the estimate amounted to more than the sum named in the order, held that an instructed verdict for the trust company was properly directed.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Phillip McNemer, for appellant.

      Charles 8. Harley, for appellee.
   Humphreys, J.

This suit was instituted in the circuit court of Pulaski County, Third Division, by appellee against appellant upon the following order and acceptance.

“September 4, 1923.
“Oliver Construction Company, Little Rock, Ark.
“Gentlemen: Please pay direct to the .Union Trust Company of Little Rock, Arkansas, the sum'of one thousand dollars ($1,000) out of estimate due me October 12, 1923. Yours very truly,
(•Signed) “J. C. Stebbins.
“Accepted for payment direct to the Union Trust Company of Little Rock, Ark., on October 12, 1923, this 4th day of September, 1923.
“The Oliver Construction Company,
“By R. B. Oliver, President.”

It was alleged in the complaint that J. C. Stebbins was a subcontractor under appellant, which had a contract with Pulaski County Road Improvement District No. 10 for the construction of certain work for said district; that he executed the aforesaid order, which was accepted by appellant; that the estimate furnished by the engineer of the work done by J. C. Stebbins under the contract up to the 12th day of October, - 1923, amounted to more than the sum specified in the order, and that' appellant had refused to pay the order when presented.

Appellant filed an answer admitting the execution of the order and its acceptance, but denying any indebtedness thereon for the alleged reason that it had paid more than the amount of the estimate of the work done by J. C. Stebbins up to October 12, 1923, to laborers, in accordance with the provisions of the bond which appellant was required to give as original contractor under the act establishing the district. It also denied liability upon the alleged ground that its acceptance was conditioned upon money being due J. C. Stebbins out of the estimate on said date after the payment of his laborers, and that none was due him.

The cause was submitted upon the pleadings and testimony-introduced by the respective parties, at the conclusion of which the court instructed a verdict for the appellee, over the objection and exception, of appellant, upon the theory that the acceptance of the order was an unconditional promise to pay it to the extent of the estimate to be rendered on said date. A judgment was rendered for $1,000 against appellant in accordance with the instructed verdict, from which is this appeal. -

In the course of the trial, appellant offered to prove by its president, R. B. Oliver, that, when, the order was brought to him for acceptance, he told appellee that J. C. Stebbins was a subcontractor of appellant in District No. 10; that he had two big gangs of laborers on the job, which were getting along badly with their work; that the laborers would have to be paid every fifteen days, and that, after paying them, he would pay appellee such amount as he might owe Stebbins out of the estimate on October 1-2, 1923; that, after paying the laborers out- -of the estimate, rendered on that date, there was nothing left to pay on. the order given by Stebbins and accepted by him; that the estimate rendered on said date was the amount due appellant from the district for work done by employees under Stebbins; that the estimate due Stebbins by appellant was determined by first deducting the amount due the laborers from the amount due him according to the contract price he had with appellant.

The court excluded this testimony upon the ground that it contradicted the written order and acceptance, to which ruling of the court appellant objected and excepted.

The undisputed evidence shows that the sum due Stebbins from appellant under his contract with it amounted to more than the face of the order on October 12, 1923, unless appellant had the right to deduct the amount it had paid the laborers employed by Stebbins before .paying anything on. the' order and acceptance. The language of the order and acceptance is unambiguous, and means that appellant will pay appellee the sum of $1,000 out of the estimate to be rendered on October 12, 1923, if it should amount to that much or more. The order and acceptance did not provide for payment out of any balance which might be due Stebbins on that date, but for payment out of the estimate which would be due on that date. There being no ambiguity in the order and acceptance which imported absolute liability upon the sole contingency of the estimate being sufficient to cover the order, the court properly excluded the testimony of Oliver tending to contradict the written contract.

The court also correctly construed the order and acceptance as an absolute agreement to pay $1,000 out of the estimate to be rendered on October 12, 1923, if said estimate amounted to the face of the order or more. According to the undisputed evidence, the estimate amounted to over $1,500. In view of this undisputed fact, the court properly instructed a verdict and rendered a judgment in favor of appellee for $1,000.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    National Refining Company v. Thielman.
    Opinion delivered June 21, 1926.
    1. Principal and agent — ratification of agent’s act. — Where plaintiff sold an automobile to defendant’s salesman, the shipment by defendant to plaintiff of certain goods pursuant to plaintiff’s order, which stated that plaintiff’s delivery of an automobile to defendant’s salesman had paid plaintiff’s account to defendant and would pay the order inclosed, did not constitute a ratification of the purchase of the automobile on defendant’s •credit, nor an agreement to pay the remainder of the purchase price.
    2. Principal and agent — unauthorized act of agent — ratification. — Where defendant’s salesman, without authority, purchased an automobile on defendant’s credit, and plaintiff’s account with defendant was credited as part of the purchase price, held that acceptance by defendant of the salesman’s notes covering plaintiff’s account with defendant did not constitute a ratification of the purchase.
    Appeal from Arkansas Circuit Court, Northern District; George W. Clark, Judge;
    reversed.

      M. F. Elms, for appellant.

      Joseph Morrison, for appellee.
   McCulloch, C. J.

The appellee, L. H. Thielman, is engaged in the automobile business and the business of selling oils, gasoline- and other supplies in the city of Stuttgart, Arkansas, under the style of Stuttgart Auto Company, was so engaged during the year 1923, and he instituted this action against appellant to recover the price of ah automobile alleged to have been sold by appellee to appellant on June 11, 1923. Appellant answered, denying that it purchased the automobile from appellee or authorized its purchase or ratified the sale. The trial of the issues before a jury resulted in a verdict in favor of appellee for the price of the- automobile.

Appellant is a foreign corporation, engaged in refining and distributing gasoline and oil. Its principal office, through which the Arkansas business is done, is situated in Memphis, Tennessee. .At the time of the transaction under investigation, appellant had an employee named Peckenpaugh looking after the Arkansas business. Peckenpaugh was designated as “field agent,” and the testimony shows that his duties were to employ salesmen and superintend their operations. There were numerous salesmen covering the territory, whose business was to solicit sales of commodities and send in orders for approval to the Memphis office. These salesmen traveled in automobiles, which they furnished themselves for their own usé. According to the undisputed testimony, appellant did not furnish automobiles to its agents and did not give them any authority to purchase same.

Shortly before the purchase of the automobile from appellee, a man named Dornblaser was employed by Peckenpaugh as a traveling salesman for appellant. It became necessary for him to purchase an automobile with which to cover his territory as salesman, and Peckenpaugh suggested to him that he buy the car from one of appellant’s customers so as to encourage trade, and, pursuant to this suggestion, Peckenpaugh and Dornblaser went to Stuttgart to confer with appellee about the purchase of a car, and the sale was consummated from appellee to Dornblaser. The usual form of sales contract was entered into, signed by appellee, and by Dornblaser in his individual- capacity; Appellant’s name does not appear in the contract of sale. At that time appellee was indebted to appellant on account in the sum of $383.38 for gasoline and oil previously purchased. In the contract, or memorandum, of sale between appellee and Dornblaser the price of the automobile and certain equipment sold at the time aggregated $1,060, and appellant’s account against appellee for $383 was credited on the account, leaving a balance of $678.62. There was inserted opposite this balance a statement in writing as follows: “Balance to be paid for. with products from National Refining Company.” When the sale was made and the contract was signed, Peekenpaugh was present, and he made out at that time an itemized statement of the amount due from appellee to appellant in the sum of $383.38, and added thereto the following statement: “This account to be paid by Raymond Dornblase'r, salesman for the National Refining Company, in monthly installments, which is covered with notes . in favor of above company; each month a paid-up' note will be forwarded to Stuttgart Auto Company, together with credit memo, showing credit on account.” This was signed, “National Refining Company, by D. L. Peckenpaugh.” Dornblaser then executed installment notes in the sum of fifty dollars each, payable to appellant, and delivered same to appellant. One of the notes was paid, and appellant credited same to the account of appellee and forwarded to the latter a memorandum credit slip.

On June 16, 1923, appellee sent to appellant’s place of business, or substation, at DeWitt, Arkansas, an order for gasoline and oil, as follows:

“National Refining Co., DeWitt, Arkansas.
“Attention Mr. Williams.
“Dear sir: Mr. Parrish called on us last Wednesday and we gave him an order for one-barrel of heavy oil and 200 gallons of gasoline, which was to be delivered Friday of this week.
“We delivered a Dodge car to you people not long ago," which paid our account in full and will also pay for this order. Please deliver this not later than Monday, as we will need it then.
“Yours truly,
“Stuttgart Auto Company.”

There was no reply to this letter, but the quantity of gasoline specified therein was shipped to appellee, and the testimony establishes the fact that the order was forwarded to the Memphis office, where it was approved on August 4, 1923. Appellee wrote to the Memphis office of appellant thereafter informing the manager of the sale of the automobile and that payment would be claimed from appellant. Shortly thereafter there was a reply to this letter, denying liability for the sale of the automobile to Dornblaser. It appears from the testimony that, before this -tim.e, Dornblaser had quit the employ of appellant and had disappeared from the country. No one who testified- in the case knew anything about what had become of him.

The trial court instructed the jury that the undisputed evidence showed that neither Dornblaser nor Peckenpaugh had any authority to purchase the automobile in appellant’s name, and that the question of authority should not be considered. The court, however, submitted to the jury the question of liability on the theory of ratification of Dornblaser’s purchase by appellant. That instruction was in correct form, and, if the evidence is sufficient to sustain the finding of the jury on the issue of ratification, the judgment should be affirmed; otherwise it should be reversed.

It will be observed that the sale on its face does not purport- to be a sale to appellant. According to the undisputed evidence in the case, the purchase was made by Dornblaser in his own name. The car was delivered to him and the contract of sale was made in his name, and he signed it in his individual capacity. There is no proof that Dornblaser acted as the agent of appellant in the purchase of the car or that he had any authority to purchase the car for appellant. The court was correct in holding that there was no evidence of authority on the part of Dornblaser or Peckenpaugh to purchase the car in appellant’s name or upon its responsibility. Both of those men were in the sales department, without any authority to make any. purchase for appellant. Nor is there any testimony tending to show that appellant, with knowledge that the contract had been made for the purchase of the car on its credit, ratified the same.

It is contended that the shipment of the bill of gasoline and oil ordered by appellee through the DeWitt station on June 29, 1923, constituted a ratification of the purchase of the automobile for appellant. Such is not the effect of the shipment, of the oil and gasoline, for appellant had the right to make that shipment without committing it to any promise to pay anything more on the price of the automobile. Appellee was not put to any disadvantage or caused to change his attitude by reason of appellant’s shipping this small bill of oil and gasoline. Conceding that appellant could not demand payment of this bill after shipping the same under the directions contained in the letter, it does not follow that the shipment constituted a ratification of the contract of purchase, or an agreement to pay the remainder of the price. Nor can it be said that the acceptance by appellant of the Dornblaser notes covering appellee’s account constituted a ratification of the purchase. The contract with reference to. these notes is complete in itself and specifies that the particularly described account of appellee to appellant was to be paid by Dornblaser in monthly installments covered by notes in favor of appellant, and •that “each month a paid-up note will be forwarded to Stuttgart Auto Company, together with credit memo showing credit on account.” This contract With reference to the account has no effect upon the contract of purchase, either as confirmation of authority on the part of-appellant for the purchase to be made or ratification of the same. The most that can be said about it is that it is a contract with reference to appellant’s preexisting account against appellee.

Our conclusion is that the court erred in submitting to the jury the question of ratification of the’ contract. The judgment is therefore reversed, and the cause remanded for a new trial,


author: MoCullooh, C. J.

text:
    Polk County v. Frederick.
    Opinion delivered June 21, 1926.
    1. Statutes — clerical error. — Under Special Acts 1921, p. 856, creating the office of county collector in Polk County, and providing that the act should take effect in 1922, a provision therein that the collector should be elected in 1908, and every two years . thereafter, held a clerical error and not to invalidate the act. .
    2. Statutes — payment op salary op county oPpicer. — Though Special acts 1921, p. 856, creating the office of county collector, failed to provide for payment of his salary from any specified fund, the statute is not unenforceable, since the implication is that the salary is to be paid from the general revenue of the county.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      J. B. Campbell, Jr., for appellant.

      Pipián S Frederick, for appellee.
   MoCullooh, C. J.

The General Assembly of the year 1921 enacted a statute separating the offices of sheriff and collector in Polk County, fixing the compensation of the collector at a salary of two thousand dollars per annum and one-half of the fees and emoluments allowed by law to collectors arising from the collection of delinquent taxes. Special Acts 1921, p.'856. The first section of the statute, which relates to the office of collector, reads as follows:

“Section 1. That the office of collector of Polk County is hereby created, and at the general election held in 1908 for the election of all State, county and township officers whose term of office is fixed by the Constitution of the State at two years, and every two years thereafter, such collector shall be elected and shall qualify as other county officers, and shall give bond in the manner now prescribed by law for the collector of the revenue, and shall hold his office until his successor is elected and qualified. It shall be the duty of said collector to collect all taxes in the manner now prescribed by law for the collection of taxes, and he shall receive as full compensation for all his services a salary of $2,000 per annum, payable monthly at the end of each month, and, in addition to said sum, he shall be entitled to one-half of the fees and emoluments now allowed by law to collectors arising from the collection by him of delinquent taxes, and out of such sums so received he shall pay all deputies and assistants that may be necessary for the discharge of the duties of his office and all expenses of his office. ’ ’

The next section relates to the office of sheriff, and fixes the salary of that office, “payable monthly out of the general county revenue fund. ’ There is a provision in the last section of the statute that the same should take effect and be in force from and after the second Tuesday of November, 1922.

Appellee was elected collector, and the county court refused to allow his salary. He appealed to the circuit court, where a judgment was rendered allowing appellee his salary, and the county court has prosecuted an appeal to this court.

' The contention of counsel for appellant is that the statute is too vague and uncertain in every material respect to be enforceable. In' the first place, it is contended that it is uncertain because of the provision in § 1 in regard to the election of a collector in the year 1908. That was an obvious clerical error, and should be disregarded. The statute provides that it shall take effect on the second Tuesday of November, 1922, which necessarily meant that the office of collector, should be separate from that of sheriff from and after that date, and that the collector should be elected at each general election.

It is also contended that, because of fáilure to expressly provide for the payment of the salary out of specified funds, the statute is unenforceable. The collector is a county officer, and there is a necessary implication that the salary is to be paid by the county, and, that being true, it could only be paid out of the general revenue fund of the county, unless there was legislation directing otherwise. We think that the language of the statute is sufficiently definite to render its terms unmistakable, and that the argument of counsel for appellant to the contrary is untenable.

Judgment affirmed.


author: Wood, J.

text:
    Sims v. Craig.
    Opinion delivered June 21, 1926.
    1. Counties — accounting of public funds. — In an action to surcharge and correct the accounting of a county treasurer, where the complaint alleged that errors and fraud therein were not discovered by the use of ordinary diligence until more than two years after settlement with the county court, the chancery court is the proper forum, under Crawford & Moses’ Dig., § 10165.
    2. Counties — accounting of public funds. — Unintentional errors or mistakes in accounting of county officers, resulting.in loss to the county, may be corrected within two years after, the settlement by the county court, and such errors may likewise be corrected by the chancery court after the expiration of two years and before the expiration of five years from the time of such settlement.
    3. Limitation of actions — actions not specially provided for.— After five years from the time of settlement of a county treas- ... urer, a cause of action to surcharge and falsify his, account is barred by Crawford & Moses’ Dig., § 6960.
    4. Counties — accounting of public funds. — A taxpayer’s action to surcharge and falsify the accounts of a county treasurer for the benefit of the county is in effect the same as an action by the county or by the State for the use of the county.
    5. Limitation ' of actions — actions by counties. — The statute of limitations applies to actions by individuals or by the State for the benefit of a county to surcharge and falsify the accounts of a county treasurer.
    6. Limitation of actions — time of accrual. — The right of action of a county to surcharge a settlement of a county-treasurer for accident, fraud or mistake accrues upon the approval of the settlement, unless he was guilty of some fraud or concealment in making the settlement.
    7. Limitation of actions — pleading in anticipation of defense.— Since the law requires that all county warrants be numbered .and show the date of issue, name of payee and amount, allegations, in a complaint to falsify the settlement of a co.upty treasurer, that the treasurer took credit for warrants previously credited to him do not show that the fraud could not have been discovered by the exercise of diligence nor' toll the five-year statute of limitations (Cráwford & Moses’ Dig., § 6960).
    'Appeal from. Prairie Chancery Court, Northern District; John E. Martinecm, Chancellor;
    affirmed.

      Cooper Thweatt and John D. Thweatt, f or; appellant.

      Emmet Vaughan, Trimble & Trimble, and Gregory & Holtzendorf, for appellee,
   Wood, J.

This .is an action brought in-the chancery court of Prairie County by J. F. Sims, a qualified elector and taxpayer of the county, against une Geo. W.: Craig and Lloyd Eddins. The. appellant, alleged.in, substance that Craig was elected on November 7; 1916, to the .office of . treasurer of Prairie County,, and duly qualified' arid entered.upon his duties as such; that he filed a Settlement as treasurer of the county with the county court: of Prairie County on July 1, .1918,: which was passed on-by':the county ¡court and appr oved, and. confirmed by - such, court on'September 2, 1918; that said settlement was false and fraudulent in -that on October 29, 1917, Craig, -as -treasurer, received from the State of Arkansas-the sum-of $172.78 for.the payment of nomination .fees which should have been placed to the credit of, the general county fund, but Which Craig instead appropriated'to his oWn use; that Craig also, as. treasurer, had received-money from'the •Farmers’ & Merchants’. Barik of Des-Arc,* Arkansas, for interest on county-funds, deposited-therein amounting, in the. aggregate to $352.97, -which amount* should have been placed to the credit of the- county general fund, and instead the said Craig, as treasurer, appropriated to his own use; that Craig paid off certain warrants arid took credit for the same by covering a period of time up to and including-June 30, 1917,andalso took credit-for the same warrants in his settlement covering a period-of time ending June 30, 1918, thereby taking credit twice for the same warrants. These warrants amounted in the aggregate to $5,776.42; that in his final settlement with thé county court, filed on January 1, 1919, covering a period ending December 31, 1918, he showed all the moneys received and disbursed by him and the amount of money left in his hands as treasurer due his successor in office. This final settlement was in all things approved and confirmed by the county court on October 7, 1919. The complaint alleged that this final settlement was false and fraudulent, and a fraud was practiced on the court by including the former fraudulent settlements, as alleged, which final settlement resulted in Craig’s taking credit to himself in the sum of $340.10, which amount in his hands belonged to the county and should have been credited to the general fund of the county, hut which instead was appropriated by Craig,to his own use. Sims alleged that the fraud perpetrated on the county court of Prairie 'County could not have been discovered by 'the use of ordinary diligence, and was not discovered until a 'short time prior to the institution of this suit, when an audit of the treasurer’s- books was made; that these settlements with -the county court were- had more than two years prior to the institution of this action, and the eounty court therefore did not have jurisdiction to correct the errors in the settlement, and that relief could only be had in a court of chancery to surcharge and falsify the settlements of the accounts of Craig as treasurer with Prairie County. The prayer of the complaint is that the settlements of the county court with Craig be reviewed for fraud in the procurement' thereof and that the same be readjusted, and that Sims have judgment for the use and benefit of the county for the amounts found to be due by Craig, together with penalty and costs. The complaint was filed and summons issued’ January 8,1925.

The answer denied specifically all allegations of the complaint as to the fraudulent settlements with the county court. The defendant admitted that certain warrants listed in the complaint were received by him and returned as a credit for a period of time ending in 1918. He alleged that, if the amount of the warrants was not correctly added, the.mistake occurred by failure to list warrants which he was entitled to credit for, which was an error against which the statute of limitations had run; that the evidence of such mistake had been destroyed, rendering it impossible for the defendant to defend the charge. The defendant alleged that all warrants that had been presented to him through the collector’s office were paid and filed with the county clerk, and checked by him, and were then passed to the county judge, and were by him stamped “Redeemed.” The warrants were then filed away by the county clerk and were later checked by the commissioners of accounts, and then rechecked by the county judge and found to be correct, and then were burned by the commissioner and the county judge; that this method of checking and rechecking the warrants paid by the defendant, for which he received credit, rendered it impossible for him to use and receive credit for the warrants a second time; that it was impossible for him to have used the warrants a second time, because there was no money in the treasury sufficient to pay them a second time. Defendant alleged that, if fraudulent warrants were presented to and received by him, he received them through mistake, believing them to be genuine, and that the statute of limitation had now run against such mistake. He pleaded the statute of limitations against the plaintiff’s alleged cause of action. The defendant also filed á separate demurrer to the Complaint in which he alleged that the complaint on its face showed that it was barred by the statute of limitation, in that the matters and facts set forth as alleged fraudulent settlements with the county court occurred five’ years before the filing of the complaint herein, and that the complaint did not allege facts sufficient to take the cause out of the operation of the statute of limitation; that the alleged fraudulent acts occurred prior to December 31, 1918, when the defendant filed the statement of his account with the county; that the complaint was in the nature of a collateral attack upon the judgment' of the county court approving and confirming the statement of the defendant as treasurer of Prairie County, rendered October 7, 1919, and that the remedy of the plaintiff, if any, was by appeal from that judgment to the circuit court. The decree of the trial court recites that the cause was submitted to the court on the complaint of the plaintiff, the answer and demurrer of the defendant, and the separate demurrer of the defendant, and the court sustained.each of said demurrers; that the plaintiff duly excepted to the ruling of the court, and refused to plead further, and stood on his complaint, which was thereupon dismissed for want of equity, and judgment entered in favor of the defendant, for costs, from which is this appeal.

It will be observed that more than five years elapsed from the time of the approval by the county court of the final settlement of the appellee, George W. Craig, with-.the., county court-to the. institution of this suit on January 8,1925. Our statute on the limitation of actions, ch. Ill, C. & M. Digest,- after enumerating various actions and- specifying the time in which same may be brought, and not thereafter, contains this general provision':

‘ ‘ Section 6960. All actions not included in thé foregoing provisions shall be commenced within five yeárs after the cause of action shall halve accrued.”

The action under review.comes within the above provision. It is alleged in the complaint that, the alleged errors and. fraudulent settlement of appellee Craig were not discovered and could not have been discovered by the use of ordinary diligence until a short time prior to the institution, of this action. Therefore the alleged errors and fraud could not have been corrected by the county court itself under the authority of § 10165 of C; & M. Digest, and the chancery court was the proper forum for the correction of such errors and the granting of the relief prayed for in the appellant’s complaint. State v. Turner, 48 Ark. 311, 5 S. W. 302; State v. Perkins, 101 Ark. 364, 142 S. W. 515; Fuller v. State, 112 Ark. 91, 164 S. W. 770. See also Johnson County v. Bost, 139 Ark. 35, 213 S. W. 388.

While this court has held that errors caused by fraudulent settlements of officers handling the public revenue may be corrected and relief granted against such settlements after two years have expired from the date of such settlements, we have not held in any case that a suit to correct mere errors in the settlements of revenue officers with the county courts, in the absence of fraud perpetrated upon that court, could be brought and maintained after the expiration of the five-year period of limitation prescribed by § 6960, supra. Unintentional errors or mistakes in accounting resulting in loss to the county would be a legal fraud upon the county, and all such errors may be corrected within two years after the settlement, under the provisions of § 10165, supra, by the county court itself, and such errors might likewise be corrected by the chancery court after the expiration of the two years and before the expiration of five years from the time of such settlement. But, after the expiration of five years from the time of such settlement in the county court, the cause of action to surcharge and correct such accounting or settlement in the chancery court is barred. Unless the five-year statute of limitation is thus made to apply in the case of officers making settlements with the county court, such officers could have no repose whatever against any mistakes in their accountings and. settlements, and their bondsmen would likewise have no repose against such mistakes. Section 6960, supra, comprehends every character of action not embraced in those before enumerated, and there is no authority for the courts to make exceptions in the case of officers handling the public revenue and their bondsmen. Officers and their bondsmen are as much entitled to this provision of the statute as any others embraced therein, and the statute is comprehensive of all character of actions except those thereinbefore specifically enumerated.

The action by the appellant is for the benefit of the county, and in legal effect is the same as an action by the county itself, or by the State for the use of the county. As is said in People v. Van Ness, 76 Cal. 121, 18 P. 139, “the statute of limitations is as applicable to actions like the one at bar brought by the State as to those brought by private persons, and public officers and their bondsmen cannot be harassed by suits brought after the statutory period of limitation has expired. ’ ’ In State ex rel. Board of Commissioners of Fountain County v. Stuart, 91 N. E. 613 (46 Ind. Appeal 611), it is held: “In actions for the benefit of a county against an officer thereof, the statute of limitations applies the same as between individuals.” People for the use of Knox County v. Davis, 157 Ill. App. 438; Knox County v. Rebstock, 157 Ill. App. 440; Board of Commissioners Woodward County v. Willett, 152 Pac. 365, L. R. A. 1916E, 92.

Our own court has held that municipal corporations are bound-like individuals by the statute of limitations. See Fort Smith v. McKibbin, 41 Ark. 45; El Dorado v. Grocery Co., 84 Ark. 104, 104 S. W. 549; Clark v. School District No. 16, 84 Ark. 516, 106 S. W. 677.

Since the five-year statute of limitations (§ 6960 supra) is applicable to actions of this character, the next question is, when did the cause of action, if any, accrue? The right of action to surcharge in the chancery court for accident, fraud or mistake, settlements of the county treasurer with the county court, accrues within five years from the time such settlements are made and approved by the county court. Blackwell v. Fidelity & Deposit Co., 173 S. W. (Ky.) 321. The complaint alleges, that final settlement was filed with the county court of Prairie County, by the appellee -Craig as treasurer thereof on January 1, 1919, and the same was confirmed and approved by such court on October 7, 1919. Thus more than five, years had elapsed between that time and the institution of this action on January 8, 1925.

3. So the issue here, in its final analysis, on the demurrer is whether or not the complaint alleges facts sufficient to toll the statute of limitations. Any error, innocent or intentional, on the part of the treasurer in making'the statement of his accounts and final settlemént thereof with the county court, as. we have seen, could have been corrected 'by the county court itself within two years after the date of such settlement. ' Section 10165, C. & M. Digest. The chancery court, after the two years had .expired for the county court to correct the settlement, could have, within the period of five years from the date of the final settlement and approval by the county court, surcharged and corrected the accounts of the treasurer, for error caused by inadvertence, accident or mistake. But, after such five years had expired, an action could not be.maintained in equity to surcharge and correct the settlement and hold the treasurér liable, unless he. was guilty of some fraud or concealment in making the settlement. He could not maintain the action unless he perpetrated a fraud upon the court iñ procuring the settlement, concealed, the fraud, and thereby tolled the .statute of limitations. Now the complaint alleges in substance that, in the settlement by' Craig in June, 1918, he took credit for 61 warrants aggregating ,$1,333.82, and in the settlement of December 31, 1918, he ..took credit for 53 warrants aggregating a total of $4,442.60, or á total credit of 114' warrants aggregating $5,776.42, all of which warrants had been credited to him in- the previous settlement of June 30, 1917; that. Craig ..concealed the misappropriation 'by fálse entries in his books; that the fraud was not discovered and could not have, been discovered by ordinary diligence until a short time before the bringing of the suit. The complaint further sets out the number of warrants drawn on the county general fund of Prairie County, the date of' their 'issue, the. name of the payee and the amount which it is alleged the appellee Craig duplicated in making his final settlement. It is also alleged that Cráig in his settlements showed credits for $20,833.77, when it should have'been $20,043.67, thereby showing that he had taken in excess in the sum of $340.10. While the complaint alleges in general terms that fraud was covered up and concealed from the county court by false statements and that such fraud could not have been discovered by ordinary diligence on the part of the county court, it does not occur to us that the facts stated are legally sufficient to show that the fraud alleged in the statement of his account as set forth in the complaint could not have been discovered by the exercise of ordinary diligence on the part of the county court. The facts as alleged do not show that the appellee Craig intentionally made false statements in his accounts and endeavored to conceal the same from the county court. The law requires all warrants presented and paid to be numbered and to show the date of their issue, the name of the payee and the amount thereof. Therefore if any mistake was made by the treasurer in taking credit twice for the warrants presented and paid by him, surely the county court, by the exercise, of proper diligence in checking these warrants, could have readily discovered any duplication resulting in an excess credit being taken by and given to appellee Craig.

In short, it occurs to us that the complaint wholly fails to properly state facts which, if conceded to. be true, would show that the appellee had intentionally erred in the settlement of his accounts, and had, by false entries and statements in his accounts, perpetrated a fraud upon the county court in procuring his settlement. No fact is stated in the complaint which might not have been the result of an honest and unintentional mistake. The facts here alleged do not show any systematic padding of the accounts of the treasurer, and do not bring this case within the doctrine of Johnson County v. Bost, supra. The facts stated do not show such a confidential relation between the appellee and the county as would constitute the making of a mere, mistake in the duplication of credits a fraud upon the county court in-procuring an erroneous allowance. The facts alleged do not show any mistake in the statement of appellee’s accounts that could not have been readily discovered and remedied by the exercise of reasonable diligence by the county court within two years after the final settlement; and the facts do not show any mistake that could not have been-corrected in the chancery court before the. expiration of five years from the date of. the settlement.. Therefore the allegations of appellant’s complaint are-not-sufficient to toll or defeat the operation of the five-year statute, of limitation. The trial court-ruled correctly in so holding and in sustaining the appellee’s demurrer to the appellant’s complaint. The decree is therefore affirmed.


text:
    Moye & Davis v. Watkins.
    Opinion delivered June 21, 1926.
    Assignments — effect of unaccepted order. — A written order by a landlord’to, her tenant .that he pay the rent to' a particular person is not operative as an assignment of such rents, as against a garnishment, in absence of an acceptance of the order by the tenant.
    Appeal from White1 Chancery .Court; . John,.. E. Mariine.au, Chancellor;
    affirmed.

      Brundidge & Neelly, for appellant.

      John E. Miller and Gul L. Pearce, for appellee.'
   Wood, J.

On December 3, 1919, Addie M.. Garrison executed a note to the Bank of Searcy, hereafter called bank, in the sum of $600, and a mortgage, on certain lands to .secure the same, in White County, Arkansas, described as the east part of the northeast quarter of the southeast quarter of section 14, less, six acres in the southeast corner, sold to W. P. Lattimer; also the east part of the southeast quarter o.f northeast quarter of section 14, less one acre in the northeast corner, sold to School District No. 8 and R. M. Lattimer, all in township 8 north, range 9 west. Payments have been made on the indebtedness reducing the same to the sum of $486.18. In July, 1924, the bank threatened to foreclose the mortgage, and Mrs. Garrison thereupon wrote to the president of the bank and the trustee named in the mortgage the following letter: “July 18, 1924. In regard to the place, I am not able to come down now, but if you will let me keep the place I will turn over the rents until it is paid for; so let me know.”

At the time the above letter was written, one B. F. Lawrence was in possession of the land under an oral contract to pay the customary rent for same. No reply was made to the above letter by Watkins or the bank. No further payments were made, and in. December, 1924, Watkins, the. trustee in the deed, and the bank instituted this action against Mrs. Garrison to recover on the note and to reform and foreclose the mortgage for the amount then due on the note. At the same time the plaintiffs caused a writ of garnishment to be issued against B. F. Lawrence, which was duly served upon him. The garnishee answered, stating that he had in his hands the sum of $186.06, rents from the land which he had rented from Mrs. Garrison and which sum he had deposited in the bank and would pay over to the party or parties entitled thereto under order of the court. On January 2, 1925, Moye & Davis intervened, alleging that they were the owners of the rents from the lands mentioned in the complaint by virtue of a certain chattel mortgage that had been executed to them'by one Garrison, the agent of Addie M. Garrison. They asked that the chattel mortgage be reformed so as to show that it included the rents in controversy. They also alleged that in October, 1925, Mrs. Garrison had made a written assignment to them of the' rents for the year 1923, and they- asked that the court make an order directing the .garnishee to pay over to them the money held in his hands. Mrs. Garrison did not answer the complaint.

Watkins testified that he was the president of the bank and trustee named in the mortgage. The note-in suit was due December 3,1920. She paid the rent, which was credited on the note for the years 1921 and 1922. She didn’t pay- rent for the year 1923, whereupon witness wrote her urging her to make payment, and on July 18, 1924, she wrote the letter above set forth. She had rented the land for the year 1924 to B. F. Lawrence. Witness never replied to the above letter in writing. Witness went to see Mrs. Garrison in October in regard to the payment of her .note, and she stated there would be no trouble about getting the rents for that year: Witness brought suit to foreclose the mortgage and to have the description therein corrected.

Moye testified that he and Davis were partners in business, under the firm name of Moye & Davis. Garrison had been doing business with his firm and giving it a mortgage every year. He gave the firm a mortgage to cover rents on lands in White County. The mortgage didn’t say rent. Garrison had rented the lands to one Lawrence, but they forbade him to turn the rent over to anybody, and witness asked Garrison to give the mortgage. Mrs. Garrison gave witness a statement to. show that Garrison was acting as her agent when he executed the mortgage. Witness knew nothing about Mrs. Garrison’s agreement to give the rent to the bank. Witness let Mrs. Garrison have the money to pay the interest on the note at one time. The mortgage to Moye & Davis was executed by Garrison on February 21, 1924. It included certain personal property and crops to be grown on land in White County, but did not mention the rents. On October 25, 1924, Mrs. Garrison executed the following instrument: “Please pay to Moye & Davis all cotton rents grown on my place in White County this, year (1924), to cover mortgage given by my husband, N. B. Garrison, acting agent for me, same mortgage being given by my husband February 21, 1924, to be paid November 1, 1924.” Garrison and his wife owed Moye & Davis about $250.

Garrison testified that he gave the mortgage to Moye & Davis to cover the rent on his wife’s place for supplies to go bn during the year 1924, the place on which Lawrence was living. Witness was agent for his: wife, and had no other, property in White County. He had been executing a mortgage on her property ever since he had been farming. Witness did not represent to the bank that the payments made on its note were from the rent.

Mrs. Garrison testified that Garrison was acting as her agent at the time he executed the mortgage to Moye &.Davis, and she understood that she was mortgaging the rents on her property in White County. When she wrote the letter to the bank on July 18, 1924, she intended .that the bank should have the rent provided it did not close her out. Witness was not willing that the mortgage should be reformed, so that the bank could get the money, since the bank treated her as it had. The reason the witness was willing to turn the rent over to Moye & Davis was because she and her husband had to have supplies to make their crop. Witness knew that the mortgage had been executed at the time she wrote the letter to the bank. It was shown that there was some mistake in the description of the land intended to be embraced in the mortgage to the bank.

Upon substantially the above facts the court rendered a decree in favor of the bank for its. debt in the sum of $584.11 and reforming the mortgage and ordering the same to be foreclosed. The court also entered an order finding that Lawrence had in his hands $183.06 to which the bank was entitled, and directed that this sum, the amount of rents on the lands included in the deed.of trust executed by the Garrisons to the bank, be paid over to-the bank .by the garnishee, such sum to be credited on the note. From that order is this appeal. The court thereupon rendered its decree reforming the mortgage, and directed that the same be foreclosed to satisfy the balance of the indebtedness due the bank on the Garrison note. There is no appeal from the decree of foreclosure.

The order of Mrs. Garrison of October 25,-1924, on her tenant Lawrence, requesting him to pay the rents for the year 1924 on the White County place to Moye & Davis, did not operate as an assignment to Moye & Davis of such rents, for the reason that there is no testimony in the record tending to prove that the instrument was ever accepted by Lawrence, on whom it was drawn. Therefore the amount of these rents in the hands of Lawrence must he treated as money or property of Mrs. Garrison and subject to garnishment at the time the appellees had the writ of garnishment issued and served upon him.

In Exchange Bunk & Trust Co. v. Arkansas Grain Co., 169 Ark. 1084, 277 S. W. 871, we said: “It is the settled doctrine that the payee of an unaccepted check, order, draft, or bill of exchange cannot maintain an action upon it against the drawee, for there is no privity of contract between them. But, if the drawee has accepted, then the payee may maintain the action. ’ ’ See authorities there cited.

The testimony is not sufficient to show that the appellant had a mortgage on the rents in controversy, and, since the appellant had no title by transfer or assignment, it follows that the garnishment issued and served on Lawrence impounded the funds in his hands for the benefit of the appellees and entitles them to subject the same to their debt. The decree of the trial court so holding is correct, and it is therefore affirmed.


author: Hart, J.,

text:
    Nelon v. Nelon.
    Opinion delivered June 21, 1926.
    1. Trial — admonition to jury. — While the .circuit .court may admonish jurors to give due consideration to the opinions of each other, to the end that they may reach an agreement, the court should not use language from which the jury may reasonably infer that the minority should yield to the majority.
    2. Trial — lengthy cautionary instructions. — The circuit judge should not give lengthy cautionary instructions, lest by inadvertence he should .violate the rule against charging the jury upon matters of fact.
    3. Trial — province op jury — weight op testimony. — The weight to be given to the opinions of experts is for the jury, and it would be error for the court to intimate that the testimony of experts would be entitled to greater weight than that of other witnesses.

      4. Wills — competency of testator — jury question. — Whether a testator was mentally competent to make a will held, under conflicting evidence, to be a proper question for the jury.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.
    STATEMENT BY THE COUBT.
    . Jewel Nelon, James Scott Nelon and Tillman Nelon filed for pro'bate the last will and testament of J. E. Nelon, deceased. The probate of the will was contested by George Nelon. The will was duly admitted, to probate, and George Nelon prosecuted an appeal to the circuit court. The cause was tried there upon a state of facts substantially as follows:
    The will was written in proper form and duly executed and attested as required by our statutes. Under the '.terms of the will, George Nelon was given the sum of $5, and the remainder of the testator’s property was devised to his wife, Ella Nelon, during her natural life, and, at her death, to his sons Jewel, James Scott and Tillman Nelon. The property devised consisted of 160 acres of farmland and some lots in the town of England. The will was executed on the 23d day of August, 1910, and J. E. Nelon died in 1920. James Scott and Tillman.Nelon were the children of J. E. Nelon by Ellen Nelon, and Jewel and George Nelon were his children by a former wife. '
    According to the evidence for George Nelon, J. E. Nelon was suffering with rheumatism so badly that it had affected his mind, and that he was so completely under the control of his wife at the time' he executed the will that he was mentally incompetent to make a will.
    George Nelon testified that his father had conveyed to him and Cleve Cantrell in January, 1910, two hundred acres of' land which had a mortgage on it for $1,500, which was a!bout its value. The understanding was that Cantrell was to pay off the mortgage for a half interest in the land. George Nelon sold his interest in the land for something like $300.

      According to the evidence adduced in favor of the proponents of the will, J. It. Nelon was an eccentric but strong-minded man,, and was in full possession of his mental faculties at the time he executed the will. He was suffering with rheumatism, and continued to. suffer with it until the date of his death, but his mental faculties were unimpaired. George Nelon was only given $5 in the will because his father had already conveyed to him a half interest in two hundred acres of land in consideration that Cantrell should pay off a mortgage on it for $1,500. According to their testimony, his interest in the land was worth considerably more than he sold it for.
    The jury returned a verdict for the proponents of the will, and from the judgment rendered George Nelon has duly prosecuted an appeal to this court.
    Lee Miles, for appellant.

      Williams & Holloway, for appellee.
   Hart, J.,

(after stating the facts). The first assignment of error is that the court erred in giving a cautionary instruction to the jury. The record shows that the court instructed the jury, and fully and fairly submitted to it the respective theories of the proponents of the will and of the contestant. The jury retired to consider its verdict, and subsequently returned into open court without a verdict, and the court gave it a very lengthy cautionary instruction. The jury again retired to consider its verdict, and within a short time brought in a verdict in favor of the proponents of the will.. It is insisted that the jury arrived at its verdict because of the cautionary instruction given by the court. On account of its length, we do- not deem it necessary to set out this instruction in full in the opinion. We deem it sufficient to say that we have considered it carefully, and do not think that it is open to the objection that it.is argumentative and tends to single out certain portions of the evidence and give undue emphasis to them. This coiirt has held that the circuit court, in its discretion, may admonish the jurors to give due consideration to the opinions of each other, to the end that they may reach an agreement, hnt has said that it is prejudicial for the trial court to use language from which' the jury may reasonably infer that the court intimates that the minority should yield its opinion to that of the majority. St. L. I. M. & S. R. Co. v. Carter, 111 Ark. 272, 164 S. W. 705; and Stepp v. State, 170 Ark. 1061, 282 S. W. 684.

In this connection, however, it may be stated that, under our Constitution, ..judges are not allowed to charge juries with regard to matters of fact, and should be véry careful to abstain from intimating an opinion to the -jury as to any fact in evidence in the case. On this account it is best that the circuit judge should not give a lengthy cautionary instruction, lest by inadvertence he should violate this rule.

A particular objection is made to that part of the cautionary instruction which is as follows:

“The evidence, it is true, comes from various different witnesses, and they have their peculiar views about the matter. With the exception of one witness, they were all laymen on the question of the capacity of the testator to make a will. Only one witness who could be classed as an expert, if an expert at all on mental diseases, pretended to give testimony. ’ ’

Dr. N. B. Beakley was a witness for the proponents of the will, and testified that, in his opinion as a physician, having known the testator over a period of years, doing his practice and discussing business and social affairs with him, he considered him entirely normal mentally until a few months before he died. It will be remembered that the will was executed in 1910’, and the testator did not die until 1920.

At the outset, it may be stated that the weight to be given to the opinions of witnesses testifying as experts is always a matter to be determined by the jury from all the circumstances appearing in evidence, and it would be.error for the court to intimate to the jury that the testimony of medical experts would be entitled to greater weight than that of the other witnesses. Jenkins v. Tobin, 31 Ark. 306; Maclin v. State, 44 Ark. 115; and Hogue v. State, 93 Ark. 316, 124 S. W. 783.

We do not think, however, that the part of the instruction quoted is fairly susceptible of the construction now placed upon it by counsel for the'contestant. It in no sense tells the jury that greater force should be given to the testimony of the expert witness than to that of the other witnesses. It is true that Dr. Beakley was the only expert witness in the case, but all the other witnesses were permitted to state their opinions as to the mental capacity of the testator and to give their reasons for it. If counsel for the contestant thought that the language quoted might in any sense be construed as an intimation by the court that the testimony of the expert witness was entitled to more consideration than that of the other witnesses, a specific objection should have been made to it.

We have carefully considered the instructions as a whom, and they fully and fairly submitted to the jury the disputed issues of fact as to whether the testator was mentally competent to make a will at the time he executed the will in question.

It is also insisted that the court erred in refusing to tell the jury that there was not sufficient legal evidence to warrant a finding that the will should be admitted to probate. On this point but little need be said. It is true that the evidence was conflicting as to whether or not the testator was mentally competent to make a will at the time he executed the will in question, but, according to the evidence for the proponents of the will, the testator was of sound mind and perfectly capable of making a will at the time he executed the will under consideration in this case. Indeed, the evidence for the proponents tends to show that the mind of the testator remained unimpaired for ten years after he executed his will.

We find no reversible error in the record, and the judgment will therefore be affirmed.


text:
    State v. Adcox (two cases).
    Opinion delivered June 21, 1926.
    1. Forgery — false statement. — The term “forge or counterfeit any writing whatever” in Crawford & Moses’ Dig., § 2642, relating to forgery, refers to a writing as being forged and not to the falsity of its statements, and a false statement of fact in an instrument, which is itself genuine, and by which another person is deceived or defrauded, is not a forgery.
    2. Forgery — elements op offense. — A person signing his own name to a check and using it to obtain credit in a lawsuit against him is not guilty of forgery, though' done for the purpose of defrauding another.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    In both of these cases the Attorney General has sued out a writ of error to obtain a review of the record.
    In No. 3222, T. J. Adcox was indicted for forgery and uttering a forged instrument.
    The defendant filed a demurrer to the indictment, which was overruled as to the first count and sustained as to the second count of the indictment.
    The prosecuting attorney then entered a nolle prosequi as to the first count and prayed an appeal to the Supreme Court as to the second count,- which charged defendant with the crime of uttering a forged instrument, which prayer was by the court refused. Whereupon the State, through its Attorney General, obtained a writ of error to review the proceedings as above indicated.
    The second count of the indictment reads as follows:
    “And-the grand jury aforesaid, in the name and by the authority aforesaid, further accuse the said T. J. Adcox of the crime of uttering a forged instrument, committed as follows: The said T. J. Adcox, in the county and State aforesaid, on the 16th day of July, 1925, fraudulently and feloniously did utter and publish as true, in a proceeding in Jackson Chancery Court, wherein the Farmers’ National Bank of Newport, Arkansas, is plaintiff and T. J. Adcox is defendant, and more particularly at the taking of the deposition of F. J. Harmon, in said cause, on behalf of the plaintiff, a certain forged and counterfeited writing on paper purporting to.be a bank check, which said writing on paper is in words and figures as follows:
    “ ‘Newport, Ark., Jan. 6, 1920.
    “ ‘Farmers' National Bank.
    “ ‘Pay to the order of.............................................................................................
    By Cash
    Four hundred eight six 72-100 dollars
    “ ‘T. J. Adcox
    “ ‘H.’
    “The said forged and counterfeited writing on paper being then and there uttered and published by the said T. J. Adcox as true in said proceeding, with the felonious intent then and there unlawfully, fraudulently, and feloniously to obtain credit on his indebtedness to said Farmers’ National Bank of Newport, Arkansas, to which he was not entitled, and to cause said Farmers’ National Bank of Newport, Arkansas, to be injured in its lawful rights, then atid there well knowing said writing on paper to. be forged and counterfeited, as aforesaid, against the peace- and dignity of the State of Arkansas. ”
    It is conceded that the same question of law is presented in case No. 3223 as is presented in case No. 3222.
    - H. W. Applegate, Attorney General, John L. Carter, Assistant, F. ill. Pickens and H. U. Williamson, for appellant.

      Otis W. Scarborough and McCaleb S McCaleb, for appellee.
   Hart, J.,

(after stating the facts). The Attorney General says that the indictment is based on § 2462 of Crawford & Moses’ Digest, which reads as follows: “If any person shall forge or counterfeit any writing whatever, whereby fraudulently to obtain the possession or to deprive another of any money or property, or cause him to be injured in his estate or lawful rights, or if he shall utter -and publish such instrument, knowing it to be forged and counterfeited, be shall, on cónviction, be confined in the penitentiary not less than two nor more than ten years.”

In Goucher v. State, 204 N. W. 967, 41 A. L. R. 227, the Supreme Court of Nebraska held that the genuine making of a false instrument in writing is not generally a forgery, and that this is the usual interpretation of the courts, unless otherwise provided 'by the forgery statutes themselves.

The court said that a check bearing the genuine signature of the maker, though drawn on the bank in which the maker has no money or credit, with the intention of cheating the payee or the bank, is not a forgery. The term, “forge or counterfeit any writing whatever,” refera to the writing as being forged, and not to the falsity of its statements. A false statement of fact in an instrument which is itself genuine, by which another person is deceived or defrauded, is not forgery. Rose v. State, 64 Col. 332, 171 Pac. 359, L. R. A. 1918C, 1193.

In a case-note to 41 A. L. R., at page 231, it is said that, while there is a conflict in the authorities upon the subject, the majority view is that, under the* common law and under statutes defining forgery in the substantial lang-uage of the common law, the genuine making of an instrument for the purpose of defrauding does not constitute the crime of forgery. Numerous cases from the Federal court and from the various State courts of last resort are cited which sustain the annotator. .

According to the allegations of the indictment, the check in this case was written by the defendant for the purpose of defrauding the Farmers’ National Bank upon which it was drawn and was so used by him in. a civil action wherein said bank was the plaintiff and T. J. Adcox was the defendant. ...

According to the allegations of the indictment, the defendant, T. J. Adcox, signed his own name to a check on the Farmers’ National Bank and used the same to obtain credit in a lawsuit brought against him in the chancery court by said bank. He signed his own name to the check, and is not guilty of-forgery, although it was done for the purpose of defrauding another. The falsity of the instrument consists in its purporting to be the chock of some other person than the one actually making the signature. People v. Bendit, 111 Cal. 277, 43 Pac. 901, 31 L. R. A. p. 831; People v. Cole, 130 Cal. 13, 62 Pac. 274; State v. Ford, 89 Ore. 121, 172 Pac. 802; State v. Young, 46 N. H. 266, 88 Am. Dec. 212; New Mexico v. Gutierrez, 13 N. M. 312, 84 Pac. 525, 5 L. R. A. (N. S.) 375; and People v. Pfeiffer, 243 Ill. 200, 90 N. E. 680, 17 Ann. Cas. 703, 26 L. R. A. (N. S.) 138.

T. J. Adcox was charged with uttering a-forged instrument, and, in a prosecution for uttering' a forged Writing, before there can be a cohviction, the State must prove that the instrument' offered was a forgery Maloney v. State, 91 Ark. 485, 121 S. W. 728. in that case it; was held, that forgery may. be committed by the use of a fictitious name with the intention to defraud. The-reason is that, if the drawer of the check has no existence, the name must have been affixed by some one without authority, and such act constitutes forgery.

But in Harrison v. State, 72 Ark. 117, 78 S. W. 763, it was held that forgery is not committed by drawing a cheek on a. bank in which the drawer lias no funds; in the name by which he is generally known, although it is not his real name.

.As.we have already seen, the. instrument in question was not a forgery because T! J. Adcox signed his own name to it and the circuit court properly sustained a demurrer to the second count in the indictment, which charged. T. J. Adcox with uttering a forged instrument.

The conclusion we have reached renders is unnecessary to consider or determine the other objections to the indictment.

The judgment in each case will therefore be affirmed.


text:
    Laws v. Wheeler.
    Opinion delivered June 21, 1926.
    I.-' .'Executors, and administrators-^jurisdíction- -of'-probate ; ; cqurts. — The probate court-has exclusive jurisdiction in admin- . istration proceedings, and an administrator who- pays legacies; or distributive shares before an order of the. probate court for that 'purpose does so at his peril. , '
    •2.'' Executors and administrators — right of action' of distrib- - utee.- — It is only where the probate c’ourt 'has a'scertáinéd the • -amount in the hands - of- an administrator and ordered payment to a distributee that he can sue for the amount ordered to be paid. . , ... ... 'I
    .3., ."Executors, and administrators — jurisdiction of ..probate courts. — The probate court of the county wherein an adminis- ' trator was duly appointed has exclusive jurisdiction to administer the estate of a decedent and complete authority to settle his 'accounts- and order a - distribution of the estáte,- though the .administrator- has, left .the county, without - winding-.up the administration.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge.
    affirmed.
    .STATEMENT BY THE COURT.
    . -.The, same.que.st.ion or- issue of.law is. presented..for our .decision in each of. these-cases, and that is, .whether a claim for a distributive share-in an estate-may--be allowed before an order of distribution is made. In -case 9224, Steven Laws, Jr., .filed his claim with, the administrator of the estate-of Daniel Nelson, deceased, .for. allowance, . In.case: 9378, Genie We.st filed her claim with-the administrator of the estate of Daniel Nelson, deceased, for allowance. The record shows that the claim, in each case was disallowed in the probate court, and each claimant . duly, prosecuted an appeal, to the circuit court. There were separate trials and judgments in the circuit -court, but the facts are the same in each case.-
    It appears that Steven Laws Sr. died intestate in Conway -County, Arkansas, and that Daniel Nelson was duly appointed and qualified as administrator of his estate. It does not appear that Daniel Nelson ever filed an account current as administrator-of said estate, or that any order of distribution was ever made in the probate court of Conway County. Subsequently Daniel Nelson moved to Jefferson County, Arkansas,-and-no administrator in succession was appointed, by the probate court of Conway County, -nor was. there ;any settlement made by .Daniel Nelson in that court as administrator of; the estate of Steven Laws, Sr., deceased.
    In 1923 Daniel Nelson died, intestate in Jefferson County,- Arkansas. An administrator of his estate ivas duly appointed by the probate court of Jefferson County. Steven Laws, Jr., and Genie West duly filed their claims with the administrator of the estate of-Daniel-Nelsorij deceased,, and-in each instance , the-claim is based upon what the,claimant alleges would be’ due him.-as his- distributive share,of the estate of Steven Laws Sr.,.deceased:
    , The circuit .court .was of the opinion that the claims or. demands of Steven Laws, Jr., and Genie West should be dismissed- and judgment rendered" accordingly in; each case. .. Separate- appeals have been prosecuted,-to this court, and-the 'Cas.es have been consolidated for hearing.

      C. D. Poole, for appellant Laws; Osear Winn, for appellant West.

      Rowell db •Alexamder, for- appellee.
   Hart, J.,

(after stating.the facts). The Constitution of 1836 contained a- provision that courts of probate should have jurisdiction in matters relative to :the estates of deceased persons, executors,- administrators’ arid guardians, as may be prescribed by law.

In construing the statutes passed in obedience-to this provision of the Constitution, it was held that the probate court had exclusive jurisdiction in administration proceedings, and that the administrator paid out legacies or distributive shares, before an order of the probate court for that purpose, at his own peril. The court said that the assets are in the custody of the law, primarily for the benefit of creditors; and that it is presumed by the law that they remain in the hands of the executor, or administrator, subject to the claims of creditors only, until ordered by the court to be paid out, or distributed to legatees or distributees. McPaxton v. Dickson, 15 Ark. 41.

Our present Constitution contains an essentially similar provision, and in construing it this court has held that it is only where the probate court has ascertained the amount in the hands of an administrator and ordered payment to a distributee that he can sue for the amount ordered to be paid. Ferguson v. Carr, 85 Ark. 246, 107 S. W. 1177; and Carpenter v. Hazel, 128 Ark. 416, 194 S. W. 325.

It is true that Daniel Nelson, while administrator of the estate of Steven Laws, Sr., deceased, left • Conway County without winding up the administration, but, under our statute, it would have been an easy matter to have made him file his account, and, after the payment of creditors, an order of distribution could have been easily obtained. The jurisdiction of the probate court of Conway County was exclusive in the administration, of the estate of Steven Laws, Sr., deceased, and that court had complete authority to settle his accounts and make an order of distribution, notwithstanding the fact that Daniel Nelson left the county.

It follows that the probate court of Jefferson County had no authority to allow a claim for a distributive share in the estate of Steven Laws, Sr., deceased,' before an order of distribution in said estate 'was made by the probate court of Conway County.

The judgment- of the circuit court will therefore be affirmed in each case.


author: Smith, J.

text:
    Standard Rice Company v. Landers.
    Opinion delivered June 21, 1926.
    Accord and satisfaction — mistake in acceptance of check.— Where the seller of three carloads of rice authorized the cashier of his bank to indorse the buyer’s check when it came to the . bank, neither he nor the cashier knowing that there was any • dispute as .to the price to be paid for. the rice, and the cashier having no authority to adjust any controversy, held that acceptance of a check for a less sum than the buyer had agreed to pay did not bind the seller, such ácceptanee not amounting to ‘ an' accord' and satisfaction.
    Appeal from .Poinsett. Circuit Court; George E. Keck, Judge;
    affirmed.

      Sivley, Evans & McCadden and L. G. Going, for appellant.

      S. T. Mayo, for appellees.
   Smith, J.

Appellees sold to appellant three cars of rice, and they testified that the,sale was made at the price of $1 per bushel. The rice was shipped to appellant at Memphis, where it was weighed and inspected, after which appellant remitted to the Bank of Harrisburg at Harrisburg, a voucher-check, in which was shown the numbers of the cars in which the rice was shipped and the proceeds of the sale. This statement was preceded by a printed notation on the cheek reading as follows: ‘ ‘ Items covered by this check. In full settlement following cars as per wt. sheet attached. ’ ’ The check was for $2,967.15, and was payable to the joint order of J. L. Landers and the Bank of Harrisburg. The rice was owned by appellees, A. H. Landers and his brother, who were copartners under 'the firm name of Landers Bros. The check was made payable in this way for the reason that the bank had.a mortgage on the rice. A. H. Landers testified'that he advised the bank of the sale, and informed the cashier that the check would be sent to the bank, and directed the cashier, when the check came, to indorse it and collect it and apply the proceeds thereof to the- indebtedness secured by the mortgage.

The cashier of the bank did not know what the terms of the sale were, so, when the check was received by him, he indorsed the names of both payees, and in due course collected the check and applied the proceeds thereof as directed.

Appellee A. H. Landers had the rice in charge for the firm of which he was a member, and was not in Harrisburg when the check was received by the bank. He returned to Harrisburg about three days after the check had been received and indorsed, and-was then told by the cashier what the amount of the check was. Landers stated, at the time he received this information, that a mistake had been made, and he immediately called appellant over the long-distance telephone and inquired why he had not -been allowed $1 per bushel for his rice in accordance with the contract of sale. The representative of appellant denied that appellant had agreed to pay $1 per bushel for the rice, and testified that the rice was shipped to be sold at the market price, and that the market price had been paid and the rice accounted for on that basis.

Within a few days after this conversation occurred Landers went to Memphis and demanded a settlement on the basis of $1 per bushel. Appellant’s manager insisted that appellant had not agreed to pay $1 per bushel; that the sale had been made subject to inspection in Memphis, and that, upon inspection, it was found that the quality of the rice was poor, the rice was badly mixed, and some of it was actually rotten. The manager testified that he produced and exhibited to Landers samples of the rice, which confirmed the inspection, and he further testified that the rice was all in the warehouse, and he proposed to deliver the rice back to Landers if he were not satisfied with the inspection and .the price.

Landers admitted that this offer was made to him, but he testified that the rice shown him was not his rice, and that he knew it was not his from the kind of sacks from which it,was taken, these sacks being unlike those in which his rice was shipped,

H. H. Rowe testified that, before tbe rice was shipped, he was employed as a buyer for appellant, and that he inspected the ricé and found it in good condition, and that he communicated to appellant the result of his inspection as-to samples and grade. A rice buyer for another dealer testified that he, too, inspected appellee’s rice, and offered $1.03 per bushel for the ricé, but that his offer was declined for the reason that the ricé had already been sold to appellant.

The cashier of the bank who indorsed the check testified that, at the time.he indorsed it, he did not know there was or would be any question about the correctness thereof.

The jury returned a verdict for appellees for* the amount sued for, thus indicating a finding that the ricé had been sold at $1 per bushel, and from.the judgment pronounced on this verdict is this appeal.

At the trial appellant requested only two instructions, one being a request that the jury -be directed to return a verdict in its favor. The second instruction requested by appellant reads as follows: “2. If you find from a preponderance of the evidence that A. H. Landers "told Tom Flournoy, cashier of the Harrisburg State Bank, that he had sold his rice to the Standard Rice Company and that that company would send a check to the bank for the proceeds of same, and, when said check came, to indorse it and credit him with the proceeds of it, and if you further find from the evidence that Flournoy did that, you will return a verdict, for defendant, although Landers may not have told Flournoy of the contract between himself and the defendant rice company/’

Both of these instructions were refused, and exceptions were saved to the refusal, and exceptions were also saved to the instructions given.

Appellant states the issue presented -by this appeal as follows: “The question to be determined by this court may be concretely stated as follows: Bid the court correctly declare the law with reference to the appellant’s plea of accord and satisfaction. If it did, the judgment in this case should he affirmed; if it did not, the judgment should he reversed and the cause dismissed.”

The court told the jury that there had been no accord and satisfaction, for the reason that the undisputed evidence showed the fact to be that the cashier did not know there was a controversy about the price of the rice and had not been authorized to indorse the check for an incorrect .amount; and then submitted to the jury the question of fact as to what the terms of the sale were. In these, instructions the court told the jury, if the rice had been sold for $1 per bushel, to return a verdict for appellees for the amount sued for, aS there was no controversy about the quantity, but, if the sale had not been made for that price, to find the market value of the rice ánd to credit the amount of the check thereon.

We do not find it necessary to determine what effect should be given the language printed on the check quoted above, for the following reasons: In authorizing the bank cashier to indorse the check, Landers assumed that it would be drawn for the correct amount, as found by the jury, and the cashier did not know- it was not for the c.orrect amount. ,As soon as it was discovered that the check did not cover the contract price, Landers refused to receive it as payment in full. That the cashier had no authority to adjust a controversy — had he known that one existed or would arise — is an undisputed fact in the case. It is also an undisputed fact that appellees sold the rice to appellant, and the question of fact — at what price the rice, had been sold' — -is settled by the verdict of the jury, and, under the testimony, the jury might have found that the market price was even greater than the price sued for, as, there was testimony that appellees had refused an offer of $1.03 per bushel, for the reason that it had previously been sold to appellant for $1. The face of the check was for an amount which appellant admitted owing appellees, and the check itself was never received by them or 'by their authority in settlement of the true price of the rice. It is true the proceeds of the check had been credited to their account at the bank, but it is true also that this money belonged to them, according to appellant’s own testimony.

There was therefore no accord and satisfaction, and the testimony fully sustains the finding that the rice had been sold for $1 per bushel, and the judgment of the court below will therefore be affirmed.