author: Smith, J.

text:
    Ouachita County v. Stone.
    Opinion delivered May 9, 1927.
    1. License — motor vehicle registration. — Acts Sp. Sess. 1923, p. 11, relating to the operation of a system of State highways, held to repeal Acts 1921, p. 490, § 15, amending Crawford & Moses’ Digest, § 7414, relating to registration of motor vehicles, since the entire subject-matter of the former act was covered and the later act was evidently intended as a substitute.
    2. Statutes — implied repeal. — While the courts are slow -to hold a prior statute repealed by implication, a later statute may have the effect of repeal, though such purpose is not expressly declared.
    Appeal from. Ouachita Circuit Court; W. A. Speer, Judge;
    reversed.
    • E. W. Applegate, Attorney General, John L., Carter, Walter L. Brown and Gus W. Jones, for appellant.

      T. J. Gaughan, J. T. Sifford, J. E. Gaughan and E. E. Godwin, for appellee.
   Smith, J.

Appellee, who is the assessor of Ouachita •County, filed two claims with the county court of that county for services rendered pursuant to § 15 of act 494 of the Acts of 1921 (Acts 1921, page 490), which reads as follows: “That § 7414 of Crawford & Moses’ Digest is amended to read as follows: ‘The tax assessor of each county shall annually return to the county clerk a sworn list of all persons who own automobiles or other vehicles subject to any State license tax, and, as soon as any additional vehicle is acquired or brought into the county subject to such license tax, he shall promptly assess and return the name of the owner thereof, as herein required. The assessor shall be allowed fifteen (15) cents for every license fee assessed in this manner, to be paid out of the county highway improvement fund.’ The said amount allowed the assessors undei the provisions of this act shall be paid in the manner now provided by law for paying claims against the county after the claims have been duly verified and approved by the county court, and shall be in addition to any other compensation, and shall be paid out of said county highway improvement fund.”

Appellee’s claims were disallowed by tbe county court, but were allowed by tbe circuit court on appeal, and the county has duly prosecuted this appeal to reverse that judgment.

In support of his claims, appellee testified that he copied from the stubs in the collector’s office the names of all persons who had paid the collector the automobile license tax, and, after copying the lists, he verified them and filed them with the clerk of the county court. The first list contained the names of all persons who had paid the license fee to the collector for the year 1925, and the fee claimed for that service was $615.45. The second list contained the names of persons who had paid the license fee for the year 1926, and the fee claimed for that service was $690.

In opposition to the claims of the assessor .it is insisted by the county (1) that the act did not authorize the fee claimed, and (2) that the act was repealed by the subsequent act No. 5 of the special session of 1923,-approved October 10, 1923. Acts Special Session 1923, page 11.

As we have concluded that the county is right in its second contention, we do not stop to inquire whether it is not also right in its first contention.

The act of 1921 is entitled: “An act to regulate the registration of motor vehicles, and for other purposes.” By this act it is declared unlawful to operate a motor vehicle on any highway of this State without registering it, and a fee for the registration is provided, from which certain vehicles are exempted. Provision was made by which dealers might register cars before sale, and for computing the fee to be collected on all vehicles. The Highway Commissioner was charged with the duty of preparing a table or chart showing the fees to be collected, which he was required to furnish to the collecting officers of the different counties. The calendar year for the collection of the fee was stated, which fee was declared to be in addition to certain privilege taxes. Provision was made whereby the licenses might be applied for and secured, and for the collection of delinquent fees against owners subject to the license tax who had failed to pay. By § 11 it was provided that the collector of each county should pay into the treasury of his county, to the credit of a fund to be known as the “county highway improvement fund,” seventy per cent, of the collections, less the fee for collection, and that the balance should be paid into the State Treasury to the credit of the State highway fund.

Other sections provided for the return of blank applications for licenses which had been sent out to the collectors, for the operation of vehicles owned by nonresidents, and for the replacement of registration plates. Section 15 of the act has been quoted. The office of State Highway Attorney was abolished, and an additional assistant was provided for the Attorney General. The time was fixed in which the collection of the license fees should begin, and all laws in conflict with the act were repealed.

It will be observed that § 15 provides that the assessors shall be compensated for the service which that section requires them to perform out of the county highway improvement fund, and that § 11 of the act requires the collectors to pay into this fund seventy per cent, of their collections. • j

Act 5 of the special session of 1923 is entitled: “An act to be entitled, An act to lay out and operate a system of State highways, and providing for the construction, reconstruction and maintenance of said roads; fix automobile, gasoline and oil taxes, and participate in the payment of bonds of certain road improvement districts, provide limitations ón costs on and certain of such districts, and for the distribution of certain funds to the various counties. ’ ’

This act consists of eighty-five sections, and extends from page 11 to page 91 of the Special Acts of 1923. It is a very comprehensive act, and embraces all the matters covered in the act of 1921 and other subjects in addition. By § 84 of the Acts of 1923 numerous sections of Crawford & Moses’ Digest are specifically repealed, but no reference is there made to the act of 1921, but the act of 1923 does repeal all laws and parts of laws in conflict therewith. Such, of course, is its necessary effect.

Section 11 of the act of 1921, which directs the collector to pay seventy per cent, of the collections to the treasurer of the county where the collections were made to the credit of the county highway improvement fund, was not specifically repealed, yet such is the necessary effect of § 6 of the act of 1923. By this section all fees which the act of 1921 authorized to be collected, with certain additional fees, were made payable to the State Treasurer, to the credit of the State highway fund.

The act of 1923 omits entirely the provisions of § 15 of the act of 1921, and we think the effect of this omission was to repeal it as well as the remainder of that act, and, having been repealed, there were no duties for the assessor to perform thereunder, and consequently that officer was not entitled to compensation for the service rendered by him pursuant thereto.

A comparison of the act of 1921 with that of the act of 1923 makes it clear that the legislative intent was that the later act should supersede the earlier one and thereby repeal it.

Where there is no express repeal of a prior statute by a later one on the same subject, it is to be presumed that no repeal was intended, and the courts are slow to hold that the prior statute was repealed by implication, but such may be the effect of the later statute, although that purpose was not declared. The rule in this behalf has been frequently declared by this court, a late case being that of State v. White, 170 Ark. 880, 281 S. W. 678, in which numerous earlier cases on the subject 'are cited. It was there said:

“In a recent decision we undertook to cover this subject in the following statement: ‘It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible; but there are two familiar rules or classifications applicable in determining whether or not there has been such, repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one, which governs the subject, so far as relates to the conflicting provisions, and to that extent only. * * '* The other is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject-matter of a former statute, and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new’ (Citing cases).”

We think it is obvious that,, by the act of 1923, the Legislature took up the whole subject of the act of 1921 and covered the entire ground of the subject-matter of the prior statute, and was intended as a substitute for it, and, this being true, the act of 1921 was repealed.

As the services charged for which form the basis of the claims against the county were authorized only by the act of 1921, it follows that there is no authority for the allowance of the claims.

The judgment of the court below will therefore be reversed, and the cause of action dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Bank of Keo v. Bank of Cabot.
    Opinion delivered May 9, 1927.
    1. Banks and banking — delay in presentment — burden of proof. —-Where a hank takes a bill of exchange for collection and is guilty of some bad faith or positive wrongdoing in failing to make prompt demand for acceptance or payment thereof, it has the burden for showing that its Wrongful act occasioned no injury, or of showing the extent of'the injury.
    2. Banks and banking — delay in presenting draft. — Where a bank takes drafts for collection and negligently fails to present them promptly for payment and to return them promptly upon payment being refused, without being guilty of any fraud or positive wrong, it is liable only for the actual damage caused by its negligence.
    3. Banks and banking — burden of showing damage. — Where a bank takes drafts for collection and negligently fails to present them promptly for payment and return them promptly upon payment being refused, but is guilty of no fraud or positive wrong, the burden of showing damage rests upon the plaintiff; Acts 1921, p. 527, § 14, not changing such rule as to burden of proof.
    Appeal from Lonoke Circuit Court; George W. Ciarle, Judge;
    reversed.

      Williams & Holloway, for appellant.

      Trimble & Trimble, for appellee.
   Smith, J.

In December, 1924, Vernon Layne was engaged in tbe neighborhood of Cabot in buying cattle, which, when he had collected as much as a carload, were shipped to market. In payment of cattle purchased he gave drafts on his son, Buck Layne, payable at the Bank of Keo. A number of these drafts were deposited by the payees therein with the Bank of Cabot, which received them as cash items and gave the depositors credit therefor accordingly. Other drafts were cashed by the Bank of Cabot for the accommodation of the payees.

The Bank of Cabot transmitted these drafts to the American Southern Trust Company, its correspondent in Little Bock, and that bank sent the drafts to the Bank of Keo for collection. This was done in what is known as a cash letter, on the face of which was printed in large red letters the direction, “Cash letter — do not hold,” and stamped thereon was the additional direction, “If not paid on presentation — return.” The drafts thus remitted were received by the Bank of Keo, and the testimony supports the finding that there was negligence on the part of that bank in presenting the drafts for payment and in failing to return them when payment was refused.

The Bank of Cabot brought this suit to recover from the Bank of Keo the amount of the drafts, which were finally returned unpaid. There'was testimony that some of the payees had carried accounts with the Bank of Cabot and that, if the drafts had been promptly returned, they could, upon being dishonored, have been charged to the accounts of these depositors. There was also testimony to the effect that the drafts could, and, in the exercise of ordinary diligence by the Bank of Keo, would, have been returned to the Bank of Cabot before Layne fiad shipped out the cattle in payment of which the drafts had been drawn, and,'if the drafts had been so returned, the Bank.of Cabot might, by an appropriate action, have saved itself, in part at least, from loss.

The complaint filed by the Bank of Cabot against the Bank of Keo did not allege, nor was any testimony offered to show, that the drafts were good and collectable, that the drawees were solvent, or that the drafts would have been honored if the greatest diligence had been exercised by the Bank of Keo. It was the theory of the plaintiff that, when it had shown that the drafts were not collected nor promptly returned, and that it had been damaged by that failure, a prima facie case of liability was made, and that the measure of the liability was the face of the drafts themselves, unless it was affirmatively shown by the defendant bank that the drafts could not have been collected and that a loss would have been sustained even though it had not been negligent. The court adopted this theory, and the instructions given conformed thereto. There was a verdict and judgment for the plaintiff bank for the face of certain drafts. As to others, the jury probably found that the drafts were not retained for a period of time so great as to constitute negligence.

The question presented on this appeal is that of the burden of proof. Was the burden on the plaintiff bank to show, not only that it was damaged by the negligence of the defendant bank, and the extent of that damage, or was the burden upon the defendant bank (its negligence being established) to show that its negligence did not cause the damage sued for?

The authorities are divided on this question, and many of the cases are cited in the note to the annotated case of Northwestern Nat. Bank v. People’s State Bank, 19 A. L. R 551, 109 Kan. 506, 200 P. 278.

There are cases which hold that a hank, by a failure to make prompt demand of payment of a bill of exchange which has been placed in its .hands for collection, makes the bill its own and renders itself liable to the owner for the full amount thereof; but the great weight of authority is against this view, and the general rule appears to be that the bank is liable only for the actual loss resulting from its failure to make prompt demand for acceptance or payment. The rule appears to be, however, that, where there is some element of bad faith or positive wrongdoing, the collecting bank is subjected to the higher degree of liability of showing that its wrongful act occasioned no injury, or of showing the extent of the injury caused.

A case of that kind is that of First Nat. Bank of Monette v. First Nat. Bank of Lepanto, 159 Ark. 517, 252 S. W. 594. It was there alleged that the defendant bank had converted a note sent it for collection or renewal. We there said that, if the bank had received the note, it should account for it, and if it had in fact converted the' note, it should pay the plaintiff bank its value, whatever that might be. But, even in a case of that kind, the liability was held to be only the value of the note, which might not necessarily be its face.

In the case of Second Nat. Bank v. Bank of Alma, 99 Ark. 386, 138 S. W. 472, a collecting bank had wrongfully and contrary to its instructions released to a consignee a bill of lading to which a draft had been attached, and which should have been collected before the bill of lading was surrendered. The surrender of the bill of lading enabled the consignee to take possession of the article shipped without paying for it. The right of the remitting bank to recover damages from the collecting bank was declared, and it was there said that, where a collecting bank surrenders a bill of lading accompanying a draft, contrary to instructions, it is, in law, liable as for conversion for any damages which have been sustained by reason thereof. It was there further said:

“By the action instituted in this ca.se the plaintiff could only recover the actual loss which was sustained by reason of any neglect or breach of duty committed by the defendant in the collection of said draft. Defendant had still the right, in its defense, to show that the plaintiff was not damaged by reason of its having surrendered the bill of lading without payment of the draft, although it was done contrary to instructions. It could show this by proving that the plaintiff was not the true owner of the draft and bill of lading, but was simply holding same as the agent of the Judge Machine Company (the consignor), coupled with no interest therein, and by proving any facts which would constitute a defense against the Judge Machine Compaq in event it was seeking a recovery against it.”

Here there was no conversion of the drafts, and the liability of the Bank of Keo is predicated, not upon a positive wrong- or fraudulent act,- but upon the. simple negligence of failing to promptly present the drafts for payment and to return them promptly upon payment being refused. In such a case the liability of the collecting bank is limited to the .damage which its negligence caused, and the burden of showing this damage rests upon the plaintiff bank.

In 3 Am. & Eng. Enc. of Law (2d. ed.) chapter “Banks and Banking,” p.'814, it is said:

“Where a bank which has undertaken the collection of a bill or note has been guilty of negligence in the performance of its duties, the damages which the depositor is entitled to recover are measured by the actual loss occasioned by the improper conduct of the bank. It is sometimes stated that the amount of a bill or note placed in the hands of a bank is prima facie the measure of its liability. But it seems that this is so only where the plaintiff shows in 'the first instance that there is a reasonable probability that the bill would have been accepted and paid if the agent had done his duty, or that, by the negligence of the agent, the liability of a drawer or indorser who was apparently solvent has been discharged. ’ ’

In 2 Michie on Banks and Banking, page 1474, it is said:

“The liability of a bank, with which a check is deposited for collection', for negligence in not collecting it and not giving notice of nonpayment till after the bank on which it was drawn suspended payment because of insolvency, is only for such amount as the depositor will lose thereby, which he must allege and prove. ’ ’

At page 1503^ of the same author it was also said:

“In an action against a bank for negligent failure to collect paper intrusted to it for collection, or for failure to .fix the liabilities of the parties thereto in case of failure to collect, the complaint must allege that the plaintiff suffered damages from the defendant’s negligence, and the omission of such allegation will render a complaint bad on demurrer. Since the liability of a bank with which a check is deposited for collection, for negligence in not collecting it and not giving notice of nonpayment, is only for such amount as the depositor will lose thereby, he must allege and prove this.”

In the chapter on “Banks and Banking,” § 295, 7 C. J., p. 622, it is said:

“The burden .of proof is on the plaintiff to show that the paper was collectable, that the bank was negligent in not collecting, and that an actual loss has followed; but, where the bank sets up affirmative facts in order to escape liability, it assumes the burden of proof as to such matters.”

In the chapter on “Banks,” in 3 R. C. L., p. 632, it is said:

“And, where the collecting bank has been negligent in the collection of paper intrusted to it, the customer must allege and prove' the amount of damages he has suffered. On the other hand, there is authority for the position that the on-us is on the bank when sued for neglect, in failing to give notice of demand of payment, and of protest of the note intrusted to it for collection, to show that its principal has incurred no damage from its neglect.”

In the annotator’s note to the case of Northwestern Nat. Bank v. People’s State Bank, supra, it is said: “Despite expressions to be found in some oases to the effect that the measure of damages for breach of duty by a bank in respect to the collection of commercial paper is the face of the paper involved, the true rule, supported by the overwhelming weight of authority, is that the damages are measured by the actual loss suffered by the owner of the paper in consequence of the negligence or misconduct of the bank, at least, 'in the absence of bad faith, or positive wrongdoing, or failure to return the paper.”

One of the leading cases holding .that the burden of proof is on the plaintiff bank to show the negligence of the collecting bank and the damage resulting therefrom is. that of Hendrix v. Jefferson County Savings Bank, 45 So. 136, 153 Ala. 636, which is annotated in 14 A. L. R. (N. S.) 686. A headnote in that case reads as follows:

“The liability of a bank with which a check is deposited for collection for negligence in not collecting it and not giving notice of nonpayment till after the bank on which it was drawn suspended payment because of insolvency, is only for such amount as the depositor will lose thereby, which he must allege and prove.”

The Supreme Court of Alabama, in the case just quoted from, followed the earlier decision of that court in the case of Bank of Mobile v. Huggins, 3 Ala. 206, which last-mentioned case was cited and approved by this court in the case of Pennington v. Yell, 11 Ark. 213, 52 Am. Dec. 262, in which case an attorney was sued by his client for negligence in failing to collect á note which had been placed in his hands for that purpose. The Supreme 'Court of this State .there said that the 'burden was on the plaintiff not only to show that the collection of ' the note was lost by the negligence of the attorney, but that the plaintiff should also have shown that the note evidenced a subsisting debt and that the maker thereof was solvent, “and, unless the latter-be shown, he (the attorney) would be liable only for nominal damages; and under no circumstances would lie be liable for more than the actual damages that the client has sustained by reason of negligence.”

The following cases support the text from which we have quoted: Midwest Nat. Bank & Trust Co. v. Parker Corn Co., 245 S. W. 217, 211 Mo. App. 413; Morris-Miller Co. v. Von Presentin, 114 Pac. 912, 63 Wash. 74; Sahlien v. Bank of Lonoke, 16 S. W. 373, 90 Tenn. 221; Terrell v. Commercial Nat. Bank, 199 S. W. 1133 (T'ex. Civ. App.); Hilsinger v. Trickett, 99 N. E. 305, Ann. Cas. 1913D, 421.

The trial court should not therefore have placed upon the defendant Bank of Keo the burden of showing the value of the drafts, as it did not convert them, but should have charged the jury that the burden was on the plaintiff, Bank of Cabot, not only to prove negligence on the part of the defendant bank, but also the amount of the loss which was sustained as the result of that negligence. The instructions given did not conform to this view of the law, and, for that error, the judgment of the court below must be reversed.

Section 14 of act 496,' Acts 1921, page 514, is cited in support of the instructions given in this case. This section changed certain rules which had previously prevailed in this State (Farmers’ & Merchants’ Bank v. Ray, 170 Ark. 293, 280 S. W. 984), but there is nothing in this act to change what we conceive to be the true rule as to the burden of proof in actions of this character.

For the error indicated the judgment of the court below is reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Insurance Underwriters’ Agency of the Insurance Company of the State of Pennsylvania v. Pride.
    Opinion delivered May 9, 1927.
    1. Appeal and error — defense not raised below. — A defense which was not raised in the trial court will not be heard for the first time on appeal.
    2. Insurance — when policy .binding. — Where the owners of property in a store instructed the agent to keep it insured, without designating the name of the company, a policy written by the agent and turned over to a clerk in the store with a request for surrender of the old policy was enforceable, though the policy had originally been placed with another company, and had been canceled by the agent without notice.
    3. Insurance — instruction to agent to keep property insured.— An instruction to an insurance agent to keep the property insured, leaving the selection of the company to the agent, gave him-authority to accept a policy for- insured when written, to waive cancellation notice clause of old policy, and to accept a new policy in lieu thereof.
    4. Insurance — right of action of lien-holder. — A. lien-holder.can maintain an action on a policy under ordinary loss paydble clause, as his interest may appear, independent of insured, if the lien-holder is entitled to the entire amount of the policy.
    5. Insurance — vested right of mortgagee.- — A mortgagee or lien-holder acquires a vested or enforced right under the ordinary loss payable clause, as his interest may appear, which cannot be destroyed by a settlement between the insurer and insured.
    Appeal from Mississippi Circuit Court, Chickasaw ba District; W. W. Bancly, Judge;
    affirmed.

      G. T. FitsJmgh and J. T. Cosion, for appellant.

      Grave tie & Alexander, for appellee.
   Humphreys, J.

This suit was brought in the Chicka-sawba District of the circuit court of Mississippi County by appellee and Paul Howard against appellant upon a fire insurance policy, No. 818634, to recover $3,000, the face value thereof, for the destruction of a stock of goods and fixtures by fire on November 26, 1924. On June 29, 1925, Paul Howard met Bruce Richards, the adjuster of W. L. Nelson & Company, general agents of appellant, in their office in Memphis, Tennessee, and made a statement to the effect that the policy sued upon was never accepted by him but was attempted to be substituted by W. M. Burns, local insurance agent for appellant in Blytheville, Arkansas, for a policy theretofore written by said Burns in the Liverpool, London & Globe Insurance Company, without his authority and consent, and that he (Howard) was not in accord with the action of J. P. Pride, the mortgagee of the goods and fixtures, in the employment of attorneys and the institution of this suit. After making the statement he accepted $90 return premium on the policy sued upon and issued the following receipt for same:

“Receipt for Return Premium.

“June 29, 1925.

“Receipt is hereby acknowledged of the sum of ninety and no/100 dollars ($90), same being the premium under Insurance Underwriters’ Policy No. 818634, being return to me by W. L. Nelson & Company, for the reason that such sum of money is for the premuim of the above policy which I did not order or ever instruct the said company and/or its agent to issue. T do not have the policy contract, for I am of the opinion that the same was destroyed by fire. If the policy contract was in my possession I would freely and willingly surrender same, and do'hereby promise to do so if it is found.

“In witness whereof I have hereunto set my hand, this 29th day of June, 1925.

“Paul Howard, assured.

‘ ‘ Witness: - Jno. Clinton. ’ ’

On the same day Howard wrote and mailed the following letter to the attorneys which he and Pride had employed to bring the suit:

“Memphis, Tennessee, June 29, 1925.

“Messrs. Alexander & Gravette,

Blytheville, Arkansas.

“Gentlemen: Pursuant to my verbal instructions given you Saturday, June 27,1925,1 hereby instruct you to dismiss the suit filed in my name against the Stuyvesant Insurance Company under their Pol. No..1130068, as I have made settlement with the company, they agreeing to pay the court costs, which I am advised is $11.05, and attorneys’ fees of $30.

“You are also instructed to dismiss the suit under Insurance Underwriters’ Pol. No. 818634, as I do not wish this suit further contested, being confident that this company should pay me nothing. Please advise me by return mail that these instructions are understood and that you have complied with my wishes.

“Please let me have your bill for expenses and court cost and attorneys’ fee in filing the suit against the Insurance Underwriters’ Agency.

“Yours very truly, Paul Howard.”

The attorneys answered by return mail to the effect that the suit would not be dismissed unless the court dismissed it.

Appellant filed a motion to dismiss the case when court convened. The motion was granted as to Paul Howard and denied as to J. P. Pride.

An answer was filed, denying liability under the policy, and the cause proceeded to a trial in the name of J. P. Pride, resulting in a verdict and consequent judgment in favor of appellee for $1,200, from which is this appeal.

The facts, briefly stated,- are as follows: Paul Howard purchased a stock .of goods and fixtures in Blytheville, Arkansas, from J. P. Pride, on May 31, 1924, which were insured for $5,000. Pride executed a bill of sale to Howard for the property, reserving the title in himself until the purchase money was paid. The fixtures were valued in the trade at $2,069 and the goods at $1,892. In November, 1924, after the stock had been reduced to some extent by sales, Pride and Howard applied to W. M. Burns, who represented several insurance companies, including the company of appellant, for a cancellation of the $5,000 policy and issuance of a new policy for $3,000, $1,800 on the stock and $1,200 on fixtures, without selecting or designating the company in which the policy should be written. The selection or designation of the company was left entirely to the local agent, Burns. The only instruction given by them to Burns was to keep their property insured. Burns knew that Pride had reserved the title when he sold the property to Howard, or at least that Pride owned an interest in the property. Howard paid the premium, and a new policy was issued in the Liverpool, London Globe Insurance Company conforming to the application. The policy contained a provision for cancellation upon five days’ notice. When Burns reported the issuance of the policy to the home office the Liverpool, London & Globe Insurance Company wired him to cancel the policy, which he did, without giving five days’ notice,, and immediately issued the policy sued upon and took it to the store and delivered it to the clerk in charge, Howard being absent, who put it in the cash register. It was the custom in canceling policies to pay no attention to the notice. The custom was for the agent to rewrite the insured in a new company and take up the old policy. The old pplicy in this instance was locked up in the safe, and the clerk did not have access to it. A rider was placed upon the policy stating that the amount due Howard thereon should be paid to J. P. Pride as his interest might appear. Through mistake or typographical error the rider applied to Insurance Underwriters of New York. The day after Burns left the policy with Howard’s clerk he was in the store, and the clerk offered him the policy, but he informed the clerk that it was the old policy he wanted to take up, and refused to take up the new policy which he had left for Howard. The fire which destroyed the property occurred that night, and the new policy was burned. The old policy was obtained a few days after the fire and returned to the Liverpool, London & Globe Insurance Company.

Before discussing the questions properly raised for determination on this appeal, we will refer for a moment to the contention of appellant that the judgment should be reversed because the rider pasted on the policy applied to the Insurance Underwriters of New York and not to appellant. Appellant made no defense on this ground in the trial court, and he cannot be heard to raise the question the first time on appeal. It is apparent that the reference to the New'York company was a mistake, for, if not, appellant would have interposed the defense that the policy was not written or the premium received by it. #

Appellant contends for a reversal of the judgment upon the ground that’ the policy sued upon was not delivered to Howard. The theory advanced is that, because the policy was not handed to and accepted by Howard, it did not become a binding obligation upon or contract between the parties, the argument being that there was no meeting of the minds of the parties upon the terms thereof, and therefore no contract. It is true that mutuality is one of the essentials of a contract, and such essential is not lacking in this contract. Both Pride and Howard conferred authority in the beginning upon Burns to insure their property in any company he represented, leaving the selection or designation of any company to him. Our court is committed to the doctrine that authority of such breadth and scope has the effect of constituting the agent of the insurer, the agent of the insured also to accept the policy wlien written, and to waive the cancellation notice clause, and to accept a new policy in lieu of an old one. Phoenix Insurance Co. v. State, 76 Ark. 180, 88 S. W. 917, 6 Ann. Cas. 440; Commercial Union Fire Insurance Co. v. King, 108 Ark. 130, 156 S. W. 445; The Allemania Fire Insurance Co. v. Sweng, 127 Ark. 141, 191 S. W. 903.

Appellant also contends for a reversal of the judgment on the ground that one who has a lien upon property cannot maintain an action under an ordinary loss-payable clause as his interest may appear in an insurance policy, independent of the insured. We can see no reason for this petition, if the lienholder is entitled to the entire amount of the policy, as in this case; nor why the lienholder would not have a right to use the name of the insured as well as liis own in prosecuting a suit against the insurer if his interest was as great or greater than that of the insured. We think the case of Burlington Insurance Co. v. Lowery, 61 Ark. 108, 32 S. W. 383, 54 Am. St. Rep. 196, is authority for the maintenance of such a suit by the lienholder in case it appears that his interest is as great or greater than that of the insured. If the doctrine were otherwise there could be no reason or use of inserting such a clause in a policy. It would merely serve as an invitation to every insured to settle with the insurer for a few dollars in case of loss, if the lien amounted to as much or more than the amount due under the policy. We think a mortgagee or lienholder acquires a vested and enforceable right under an ordinary loss-payable clause as his interest may appear in an insurance policy which cannot be destroyed by a settlement or adjustment between the insurer and the insured. •

No error appearing, the judgment is affirmed.


text:
    Morris v. Caldwell.
    Opinion delivered May 9, 1927.
    1. Bankruptcy — illegal preference. — A deed by a bankrupt in an effort to prefer his mother for an antecedent debt and not for a present consideration, made only a few days before he filed a voluntary petition in bankruptcy, and at a time when he was hopelessly insolvent, and when his mother had reason to believe that he was insolvent and that the transfer would effect a preference, held void as an illegal preference.
    2. Bankruptcy — VALpiTY of gift. — The gift of an automobile by a bankrupt to his wife, presented to her about nine months before he filed his voluntary petition in bankruptcy, at a time when he had no expectation of becoming bankrupt, held valid.
    3. Appeal and error — conclusiveness of court’s finding.' — A finding of fact by the trial court will be presumed correct, in the absence of an abstract of the testimony showing otherwise.
    Appeal from Ashl'ey Chancery Court; E, G. Hammock, Chancellor;
    affirmed,

      G. P.. George and II. H. Kays, for appellant.

      A. A. Poff and Jas. M. Smith, for appellee.
   Humphreys, J.

This is a suit by J. H. Caldwell, trustee in bankruptcy of the estate of H. W. Morris, to cancel a deed executed by the bankrupt to his mother, Mrs. M. H. Morris, for approximately 170 acres of land in Ashley County, Arkansas, subject to a mortgage in favor of the Bank of Parkdale for $2,587.48 and interest, and to subject the equity in a certain Ford car presented by the bankrupt to his wife, and a Delco plant, to the payment of the indebtedness of the bankrupt, upon the ground that the conveyance was voluntary, and that it and the gift of the automobile and,the purchase and disposition of the Delco plant were made in violation of the bankrupt law and fo-r the purpose of defrauding the bankrupt’s creditors. Mrs. W. H. Morris, the mother of the bankrupt, and Mrs. Mabel R. Morris, his wife, filed separate answers, denying the material allegations of the complaint.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree canceling the conveyance of the land and subjecting the bankrupt’s equity therein to the payment of his indebtedness, and adjudging the automobile and Delco plant to Mrs. Mabel R. Morris.

Appeals have been prosecuted to this court by 'the respective parties from the decree in so far as sam'e was adverse to them, and the cause is before us for trial de novo.

After a very careful reading of the testimony we have concluded that the decree rendered by the trial court should be affirmed.

The deed was made by the bankrupt in an effort to prefer his mother for an antecedent debt and not for a present consideration. Pie made the deed only a few days before he filed his voluntary petition in bankruptcy and at a time when he was hopelessly insolvent. His mother had reason to believe that her son was insolvent and that the transfer would effect a preference. It could serve no useful purpose to set out the testimony from which this conclusion is drawn, and which would only serve to lengthen the opinion and he of no use as a precedent.

The Ford automobile was purchased in June, 1924, about nine months before the bankrupt filed his voluntary petition in bankruptcy. He traded in an old car on the new one for $225 and executed notes in the sum of $25.83 each for the difference, and paid the last one in June, 1925. Most of the notes were paid out of the business, as other debts. He gave the new car to his wife as a birthday present, which was not unusual. At the time, although in financial straits, he had no idea of failing in business and filing a petition in bankruptcy. He and all of his creditors thought his farm was worth two or three times as much as it sold for, and credit was extended to him on that account. The gift was a modest one, in keeping with the station in which he and his wife lived, and was not made for the purpose of covering up and shielding his property from his creditors. It would he carrying the doctrine to an extreme to allow creditors of a bankrupt to seize and appropriate for the payment of their debts inconsequential gifts made by him while in business to his better half in remembrance and celebration of her birthday. In the ordinary course of life wives and mothers expect outward tokens and evidences of affection from their husbands, and it would indeed be harsh to deprive a man struggling for financial existence from manifesting his affection in this manner and the wife and mother from being the happy recipients of modest gifts on special occasions like birthdays.

It is impossible from appellant’s abstract to form an opinion with reference to the whereabouts or ownership of the Delco plant. It seems that the bankrupt purchased it at some time and sold it before he filed his petition in bankruptcy. The decree abstracted contains a finding by the court that the Delco light plant involved in this action belongs to the wife of the bankrupt, and we must presume that the finding was warranted, else the abstract of the testimony would show otherwise.

No error appearing, the decree is affirmed.


author: Kirby, J.,

text:
    Standard Lumber Company of Pine Bluff v. Wilson.
    Opinion delivered May 9, 1927.
    1. Mechanics’ liens — statement of account. — It is not essential that a materialman’s lien statement, filed with the clerk of the circuit court, should contain an itemized statement of the account for materials."
    2. Mechanics’ liens — itemized account. — Although the statement of a materialman’s lien need not contain an itemized account, yet, when he seeks to enforce the lien by suit, he should present an itemized account.’
    3. Mechanics’ liens — -time of filing statement.- — Evidence showing that the last items of the materials furnished by material-man were included in the original contract for materials, that they were delivered on the premises and used in the construction of the building, and that the statement of the lien was filed within 90 days after their delivery, held to show that-the statement of the lien was filed in time.
    4. Mechanics’ liens — defense.—Where material is delivered on the ground where a building is being constructed, the owner must show that the material was not used in the construction of the building, in order to defeat a lien for the material.
    5.. Action — commencement of cross-action. — Where a cross-complainant issued no summons, but merely filed his cross-complaint, the date of the commencement of the cross-action was the date of the filing of the responses and answers thereto.
    6. Mechanics’ liens — commencement of cross-action. — Where a cross-action to establish a materialman’s lien was begun within less than 90 days from the delivery of the last materials furnished under the contract, the lien was thereby perfected, even if the lien statement filed with the circuit clerk was insufficient.
    7. Action — commencement of cross-action. — Where no summons was issued on a cross-complaint to establish a materialman’s lien, and response thereto was made, and an amended cross-complaint was filed to enforce the lien fixed by the filing of the lien statement, the date of commencement of the action to enforce the lien was the date of filing of answers to the amended cross-complaint.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    This appeal is from a decree deifying the appellant the right to a lien for materials furnished the contractor, J. Alonzo Jones, and used in the construction of a three-story brick veneer residence for J. R. Wilson, upon his lots in block 5, Godwin Addition to El Dorado, Union County, Arkansas.
    Before the contract was given to Jones, Mrs. J. R. Wilson and J. H. Bliss, the architect employed by J. R. Wilson to supervise the construction of the residence, had agreed with the Standard Lumber Company of Pine Bluff on a list of materials that would be required for the construction of the building, the millwork, at a price of $3,650.76.
    After the contract was let to Jones, upon inquiry, the Standard Lumber Company agreed to furnish the materials as already selected, to him for the construction of the building. It was to be delivered and was. loaded on the cars P. O. B. Pine Bluff, billed to the contractor, J. Alonzo Jones, at El Dorado, who was required to pay the freight there and take credit on the price of the materials.
    J. R. Wilson required the contractor to execute a bond for the faithful performance of the contract, furnishing all materials for the agreed price of $19,676.72, but no bond was filed with the circuit clerk under the provisions of § 6912, C. & M. Digest, conditioned for the payment, of all claims which might he the basis of liens.
    The millwork and materials were prepared and constructed at the plant of the Standard Lumber Company at Pine.Bluff and shipped to the contractor, Jones, at El Dorado, from time to time as needed in the construction of the building, the first shipment of said materials having been made on July 30, 1923, and the last shipment, according to appellant’s contention, on March 27, 1924/
    The contractor, Jones, proceeded with the construction of the residence, and on March 27,1924, was indebted to the Standard Lumber Company (having only paid $1,000 on the materials furnished) and to various other persons for materials furnished and used in the construction of the building.

      The Parlor City Lumber Company, which had furnished some lumber for the building, filed suit in the Union Chancery Court, Second Division, against J. Alonzo Jones, the contractor, and J. R. Wilson, the owner, for the amount due it for materials, and made the appellant, Standard Lumber Company of Pine Bluff, and all other material furnishers, defendants in the action.
    On April 8, 1924, appellant filed its response in said action and also a verified cross-complaint and action against the said contractor and J. R. Wilson, owner, for the balance due it for said materials furnished for the construction-of said residence. It alleged in its cross-action that it had sold to the said J. Alonzo Jones, the contractor, the millwork for the construction of said residence for the agreed price of $3,650.76 and had delivered same between the 24th day of May, 1923, and the 9th' day of January, 1924, and attached to its complaint an itemized statement of the materials furnished, and claimed a lien, on the said property for the amount due. No summons was issued on the cross-complaint, and on the 11th of June, 1924, J. R. Wilson, the owner, filed his response to said cross-action, and on June 23, 1924, the defendant, J.'Alonzo Jones, the contractor, filed his response. On July 11, 1925, the Standard Lumber Company; with permission of the court, filed an amended answer and cross-complaint, alleging that its,lien for said materials furnished had been filed in the office of 'the circuit clerk of Union County, Arkansas, within 90 days from the date of delivery of the last materials on the job under said contract. It alleged also that said last materials were delivered on March 22, 1924.
    On July 25, 1924, said J. R. Wilson and Mrs. J. R. 'Wilson filed their joint response to the amended answer and cross-complaint of appellant. On March 20, 1924, appellant lumber company gave notice to J. R. Wilson of its intention to claim a lien upon the residence and property, setting out the amount thereof and from whom due, and that, upon expiration of ten days from the date of service of the notice and before the expiration of ninety days from the date of delivery of the last items of the materials furnished, it intended to file a material lien on the property; and filed on the 31st day of March, 1924, with the circuit clerk of Union County, a verified and just account of the amount due, attaching to its affidavit for a lien a general statement of account, an itemized statement of the materials furnished, and a copy of the notice.
    The itemized statement attached to the affidavit for the lien shows the last shipment of the materials by the Standard Lumber Company, under said contract, was made on the 29th day of December, 1923.
    The testimony shows that the last materials delivered on the job by the -Standard Lumber Company, under the contract, was after M-arcli 29, 1924.
    Prior to November 12, 1925, the day of the trial, the defendant, J. E. Wilson, owner, paid off all the claims against said property and took assignments to himself, except that of the Standard Lumber Company of Pine Bluff, appellant.
    The testimony also shows that Wilson, the owner, had required the execution of a bond by the contractor, but that it was worthless, the contractor and the surety not being financially responsible, that the contractor had abandoned the job before it was finished, and that the owner had already expended much more than the contract price in the completion of the building.
    The court rendered a decree in favor of the appellant against J. Alonzo Jones, the contractor, and his bondsmen for the balance due on its claim, $2,450, with 6 per cent, interest from March 31, 1924, dismissed its cross-complaint against J. E. Wilson and Mrs. J. E. Wilson for want of equity, and denied it a lien against the property on the ground that its lien had not been perfected as required by law, and from this decree the appeal is prosecuted. Other facts will be referred to in the opinion.

      John Carroll and Rowell & Alexander, for appellant.

      E. W. McGough, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the filing of its verified account for materials and millwork furnished to the contractor and used in the construction of the improvement with the circuit clerk of Union County, after notice duly given to the owner, was a substantial compliance with the statute providing for fixing the lien against such improvement, and that the court erred in holding otherwise.

The undisputed testimony shows that the wife of J. R. Wilson, the owner, with the architect employed for designing and supervising the construction of the residence, agreed with the appellant lumber company, the material furnisher, upon the materials to be supplied the contractor and the price thereof, that they were to be furnished as needed, the whole bill of materials for the one price and lump sum agreed upon. That the materials wore supplied upon the order of the contractor as requested, and used in the construction of the building, and that there had been paid, at the time of the filing of the account with the circuit clerk of Union County, only the sum of $1,000 on the account.

The undisputed testimony also shows that appellant filed its claim, duly verified, with the circuit clerk of' Union County, showing the balance due upon the account for materials furnished, the amount for which a lien was claimed, with the description of the lots upon which the building was erected with the materials furnished, and that the ten days’ notice required before the filing of such lien was duly given.

It is not disputed that the amount claimed is correct, but insisted that no lien was fixed by the filing of such claim, since it was not an itemized account and because it was not filed within 90 days after the last item of material was furnished to the contractor, as shown by the account.

The testimony shows, however, that certain items of materials were furnished to the contractor in accordance with the contract of sale of the materials after the date of the last item delivered, as shown on the account filed; being shipped on March 22 and 27, 1924, respectively, and delivered on the job and used in the construction of the building. The last item so delivered and used was shipped on March 27, 1924, the notice of the intention to claim a lien being given to J. R. Wilson, the owner, on March 20, 1924, and the lien filed in the office of the circuit clerk of Union County on March 31, 1924.

The affidavit for the lien claimed described the property to be charged therewith, contained a general statement of the.account showing the amount claimed to be due thereon. The detailed itemized statement filed therewith did not contain the last items shown to have been delivered.

In testing the sufficiency of the account, so far as concerns the preservation of the lien, this court has held that it is not essential that the account filed be an itemized one, although, when it comes to enforcement of the claim by suit, then, for the purposes of defense, the owner may insist upon the presentation of an itemized claim.

In Terry v. Klein, 133 Ark. 366, 201 S. W. 801, it was said:

“Conceding that the words ‘just and true account’ mean, as ordinarily construed, an itemized account (Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027), this court has decided that failure to itemize the account does not defeat the lien. Wood v. King, 57 Ark. 284, 21 S. W. 471. In reaching that conclusion the court followed the rule which had been repeatedly announced here, that the lien of a mechanic or material furnisher ‘springs out of the appropriation and use by the landowner of the mechanic’s labor or the furnisher’s materials, and not from the taking of those formal steps which the statute enjoins for the preservation and assertion of the lien and for giving- notice to others of its existence and extent’; that the statute is highly remedial in its nature, and that, when the controversy is between the holder of the lien and the proprietor of the land, an exact compliance with the statute at all points is not indispensable. Anderson v. Seamans, 49 Ark. 475, 5 S. W. 799. ” See also Murray v. Rapley, 30 Ark. 568; Buckley v. Taylor, 51 Ark. 302, 11 S. W. 281; and Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353.

Miller, witness for appellant, testified that the handrail for the stairs and the astrangals .for the doors were shipped on March 22, 1924, and the plate glass for the door was shipped on March 27, 1924; that said items of material were all a part of the original contract, and this testimony is not disputed or denied.

Morehead, foreman for contractor Jones, who completed the residence, stated that he received the astrangals for the doors shipped on March 22 and the plate glass shipped on March 27,1924, and the same were used in the building. He also said that the handrail shipped on March 22, 1924, was delivered, and that he was waiting for the arrival of this material, which was needed for the completion of the building.

Mrs. J. R. Wilson testified that the handrail for the stairs and the plate glass were shipped as part of and included in the original contract; shipped and delivered without extra charge, and arrived near the completion of the, building, which was in April,-1924.

J. Alonzo Jones also stated that the handrail was shipped as part of the original contract.

J. R. Wilson testified that the handrail for the stairs was delivered in March, 1924, but his understanding and belief was that it was not used.

Morehead, foreman, had charge of putting the handrail in the building, but did not know which one was used, another having been ordered from a different company on account of the delay in the arrival of the first, and both being on hand.

The amount of the account for which the lien was claimed'was not increased or diminished by these items of materials last delivered, which were embraced in the original contract to furnish materials, and, the account having’ been filed within 90 days after the same were furnished, was within the limit fixed by the statute. Ferguson Lumber Co. v. Scriber, supra; Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999.

It is not disputed that the handrail shipped on March 22, 1924, was delivered on the ground where the building was being constructed, and, such being the case, the burden was- on the owner to show that the material was not used in the construction of the building, in order to defeat a lien for the material thus furnished. Van Houten Lumber Co. v. Planters’ National Bank, 159 Ark. 535, 252 S. W. 614.

Appellant’s cross-complaint, also claiming a lien for materials furnished, and praying a foreclosure thereof, was "filed on April 8, 1924, and the delivery of the last materials under the contract was after the date of shipment of March 27, 1924.

Appellee, J. R. Wilson, filed his response to the cross-complaint on June 11, 1924, and the separate response thereto of J. Alonzo Jones, the contractor, was filed on June 23, 1924.

This action on-the cross-complaint against appellees was commenced upon the dates of filing of said responses and answers by appellees as shown, and duly commenced as to said appellees within less than 90 days from the delivery of the last materials furnished under the contract. The lien was thereby perfected, if it had not already been fixed by the filing with the circuit clerk. Carr v. Hahn & Carter, 133 Ark. 401, 202 S. W. 685.

On July 11, 1925, appellant filed an amendment to its cross-complaint in effect to foreclose its lien claimed to have been filed with the circuit clerk on March 31,1924.

The appellees demurred to the amended complaint and filed their answer thereto on July 25, 1925, but they had already filed their response on June 11, 1924, to the cross-complaint of appellant for fixing the lien and its foreclosure, and the action to enforce its lien was commenced on that date, long before the expiration of the fifteen months allowed by law for bringing suit for the enforcement of such lien. Such amendment hardly constituted a new cause of action, in any event, but only authorized the introduction of the proof of the filing of the account or lien with the circuit clerk in support of the allegation of the cross-complaint, that appellant was entitled to a lien for materials furnished for the erection of • the building, and no other or different relief was prayed than in the cross-complaint for the enforcement of the lien alleged to exist for furnishing such material.

The chancellor’s findings that the account for a lien was not filed with the circuit clerk of Union County within 90 days from the last item of materials furnished and that the last item of material was not furnished within 90 days from the date of the'filing of the answers, and responses by appellees to appellant’s cross-complaint for establishment of the lien is contrary to the preponderance of the testimony, and his denial of appellant’s claim for a lien for said materials furnished was erroneous.

This court holds that the last items of materials shown to have been furnished were included in the original contract for furnishing materials and that same were delivered on the premises and used in the construction of the building, and the lien claimed was filed with the clerk of the circuit court of Union County within 90 days thereafter, and also that the cross-complaint for establishment of a lien was responded to by appellees and the action begun within 90 days from the furnishing of said materials.

It is unfortunate that appellee shall have to pay again for the materials furnished his contractor and used in the construction of the residence, for which he is shown to have paid already much more than the contract price, but appellant has not been paid for its said materials, and it is in no wise its fault that the bond to the owner required of the contractor to indemnify him against such loss turned out to be worthless.

It follows that the decree must be reversed and the cause remanded, with directions to enforce the lien against the improvement for the amount due appellant for the materials furnished, and for all necessary procedure therefor, according to the principles of equity and not inconsistent with this opinion. It is so ordered.


author: Kirby, J.

text:
    Lescher v. Baird.
    Opinion delivered May 9, 1927.
    1. Specific performance — misrepresentations. — Misrepresentations alleged to have been made by the purchaser of property as to the character of improvements to be erected thereon held no defense Jo a suit for specific performance of a contract for the sale of real estate, where there was no mention of improvements in the contract.
    2. Contracts — representations as to future events. — Statements or misrepresentations as to future events or expectations and probabilities do not constitute “fraud.”
    3. Vendor and purchaser — variance between offer and acceptance. — A purchaser having made an offer to purchase property could insist on performance of the contract according to the vendor’s acceptance, although the acceptance did not cover all of the property mentioned in the offer, the difference not being material.
    4. Vendor and purchaser — sufficiency of description of property. —Description of property in the contract for a deed as that “lying directly south of Twelfth Street pike facing north into Jackson Street, consisting of 300 feet along Twelfth Street pike and 140 feet deep south” held sufficient, where the property could be identified by an engineer with the aid of a map of the city.
    Appeal from Pulaski Chancery ‘Court; John E. Mar-tineau, 'Chancellor;
    áffirmed.

      John D. Shackleford, for appellant.

      S. L. White, for appellee.
   Kirby, J.

This appeal is from a decree of the chancery court for specific performance of the contract to convey a strip or tract of land in accordance with the written contract for the sale thereof. The complaint alleged the purchase of the land by the contract made, exhibiting a copy thereof; that the abstract of title was prepared, and plaintiff expressed Ms willingness to accept the warranty deed of the defendants for the land purchased and make the payment of $3,000 in cash; that defendants had refused to perform the contract and execute the deed of conveyance, and were endeavoring to sell the land to other persons, and plaintiff tendered in court the agreed price of $3,000. Plaintiff also alleges the real estate agents, naming them, were entitled to 5 per cent, commission out of the purchase price, and prayed that the defendants be enjoined from disposing of the property, and that they he required to accept the $3,000 and execute a sufficient warranty deed conveying the property to plaintiff, or, upon the failure to do so, that the title to the property be divested out of them and vested in the plaintiff.

■ The answer admits the ownership of the land, the execution of the contract of sale, and alleged that it was procured through misrepresentations of the agents as to what sort of improvements would he erected on it by the plaintiff, and that they had refused to execute the deed upon learning that the erection of such improvements was not in contemplation by the purchaser, as had been falsely represented to them would be made thereon, but for which they would not have executed the contract.

A demurrer was sustained to the answer, and the defendants refused to plead further.

A copy of the contract introduced is as follows:

Exhibit A.

“Sadler & Wilbourn

Little Rock, Arkansas, Aug. 5, 1925.

“Sadler & Wilbourn.

‘ ‘ Gentlemen: I herein submit the following offer to purchase that part of the property of Mr. and Mrs. G. Lescher lying directly south of 12th Street Pike, facing north into Jackson Street, consisting of 300 feet along the 12th Street Pike and 140 feet deep south. I will pay for this property $3,000 cash. It is understood I am to be furnished abstract showing good title, and conveyance to be made to me by warranty deed, all. taxes now dne or delinquent to be paid by seller.

“8/5/25. . (Signed) Jno. P. Baird.

“We accept tbe above offer, and agree to pay Sadler & Wilbonrn their commission (5 per cent.) $150, with the following exception: We think we have 330 feet fronting pike, and we want to leave 20 feet on the east and 20 feet on west for streets, the balance we agree to deed.

“(Signed) Geo. J. Lescher,

“(Signed) Susan H. Lescher.”

The testimony shows the execution of the contract, that abstract of title was approved by the purchaser, who presented a deed conveying the lands to be executed by the owners, and was ready to pay the purchase money upon the execution thereof.

Baird, the purchaser, testified that he was willing to pay the money agreed upon and take a deed conveying the strip of property purchased along West 12th Street Pike either 150 or 140 feet deep from 12th Street Pike; that Mr. Lescher did not seem to know what he had, and that he said he was going to have it surveyed. “He knew that he was selling me the north 140 or 150 feet, the north 140 feet, with a 10-foot alley; that was his agreement. I was to have 290 feet with a 20-foot street at each end.” He was to buy the whole north end of the property, reserving a street of 20 feet on each end, and Lescher thought the strip was 330 feet long. Lescher stated that he did not accept the offer and did not make the deed; did not believe the second deed left with him was right. It called “for 330 feet by 150 feet,” and he did not agree with them on this description, as “I would have had no way to get back and forth to the rest of my property.” That the agreement of sale was not carried out, and that the court declined to allow him to state what the representations were about the improvements to be erected.

Mrs. Lescher admitted execution of the contract of sale, but said she would not have signed it except for the representations of the improvements that would he made. They agreed to take the $3,000 and pay the agent’s commission, and that if they had made the deed to the 330-foot strip they would have had no means of getting back to the rest of their property-. She wanted the improvements agreed to be made specified in the deed, and that she was still willing to make the conveyance if this was done.

The abstract of title was procured at a cost of $17.20, and a civil engineer figured out the true description of the land agreed to be sold from the contract and a map of the city of Little Bock, showing the streets mentioned in the contract.

The decree was for specific performance, that land should be conveyed as described by the engineer, except “a strip of land off the east and west sides of the property as described, 20 feet wide, reserved for a street”; that it was agreed at the time the contract was made that a strip of land 20 feet on the east side and also on the west should be opened for a public street permanently, and the court divested title thereto out of defendants to said 20-foot strip on the east and west sides of said property and vested it in the public forever for use as a street.

Decreed that appellants execute a warranty deed within 10 days conveying the title to the land to the plaintiff, Baird, and it to the clerk of the court. It was also decreed that the clerk make the deed conveying the title, upon failure of appellants to do so, and that he pay the costs of abstract and the brokerage- fee for selling the land out of the $3,000 deposited in the court, the balance to the owners, the appellants. -

Appellants insist for reversal that the contract of sale was not binding because of the misrepresentations made to them in its procurement about the kind of improvements that would be erected on the property purchased, and also that the minds of the parties did not meet and no contract of sale was made, since the offer as made was not accepted.

The contract makes no ^mention of the character of improvements to be erected upon the property purchased, says nothing about improvements at all, and no error was committed by tlie court in its refusal to bear evidence upon that point. If it bad been regarded a matter of moment, appellants doubtless would bave made some reference thereto in their acceptance of the proposition, as they did about leaving 20 feet on each end of the strip of land for streets.

The general rule relative to such matters is laid down in B. 0. L., vol. 12, as follows:

“It may be stated-as a general rule that statements or representations as to future or contingent events, or as to expectations and probabilities, .or as to what will be or is intended to be done in the future, or mere expressions of opinion about what will occur in the future, etc., do not constitute fraud, etc. They are generally regarded as mere expressions of opinion, or mere promises or conjectures, on which the other party has .no right to rely.”

■ It is stated further, under “Illustrations* * * “So, too, promissory representations looking to the future, such as to what the vendee can do with the property, how much he can make on it, or how much he can save by the use of it, do not generally constitute fraud.”

The offer to purchase made by Baird was accepted by the Lesehers, owners 'of the property, with a statement as to the width thereof, being 330 feet frontage on the pike, and their desire that 20 feet on the east and west ends should be left for streets, the balance they agreed to convey. This differs from the offer to purchase describing the property as 300 feet along the pike, but this was not material nor so regarded by the purchaser, who had the right to and did insist upon the performance of the contract.

The land purchased was sufficiently described in the contract to be identified by the engineer with the aid of a map of the city showing the location of the streets mentioned in the contract. Dallar v. Knight, 145 Ark. 522, 224 S. W. 983.

The court decreed the opening of the streets and dedicated to the public use the 20-foot strips on each end of tlie tract purchased, fully meeting acceptance of the proposition for the purchase of the land, and decreed the conveyance of the remainder thereof to the purchaser in accordance with the contract of sale. We find no error in the record, and the decree is affirmed.