text:
    Coffman v. Citizens’ Loan & Investment Company.
    Opinion delivered February 14, 1927.
    1. Equity — exhibits to complaint. — Exhibits to a complaint in equity become, for all purposes of pleading, a part of the complaint, and on demurrer may be used in aid of a defective statement in the complaint itself, and may be looked to for the purpose of testing the sufficiency of the allegations of the complaint.
    2. Mortgages — fraudulent conveyance. — Chattels brought for the express purpose of daily, indiscriminate sale to the general public, exposed for such sale at the place of business of a dealer, and over which the dealer is permitted to exercise the dominion of owner, cannot be made the subject of a valid chattel mortgage, though, as in the case of an automobile, they may be of considerable size, value and capable of identification.
    3. Mortgages — stipulation against sale — waiver.—A stipulation in a mortgage on automobiles against the sale, conversion or removal is waived by the mortgagee knowingly permitting its violation.
    Appeal from Pulaski Chancery Court; John E. Martillean, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    On June 19, 1925, the Citizens’ Loan & Investment Company filed a complaint in the Pulaski Chancery Court against the Yale Automobile Company, H. E. Coffman, receiver of said company, and the General ■Motors Acceptance 'Corporation, to foreclose a lien claimed by it on certain Chevrolet cars of the Yale Automobile Company, sold by said company to various customers, and notes • retaining title in the cars until paid for, which were transferred to the Citizens’ Loan & Investment Company. Judgment is sought against the General Motors Acceptance Corporation for the valúe of a car upon which the plaintiff claimed a lien, and which, it is alleged, the latter corporation converted to its own use. A decree of foreclosure of the lien of the plaintiff is also asked and judgment against the Yale Automobile Company for the amount of the plaintiff’s debt.
    The General Motors Acceptance Corporation brought suit in replevin against the Yale Automobile Company and the England National Bank, in which it sought to recover the possession of certain automobiles turned ov.er to said bank by said automobile company under certain mortgages, which are claimed to be void. The complaint alleged that the General Motors Acceptance Corporation was the owner of said automobiles, and entitled to possession thereof. The ground upon which the plaintiff in that suit claimed title and possession to the cars is that they were sold to customers by the Tale Automobile Company and notes taken for the purchase price thereof. The title was retained until the purchase price was .paid, and the notes for the purchase price were assigned to the plaintiff in the replevin suit. By consent, the replevin suit was transferred to the chancery court and consolidated with the suit brought in that court by the Citizens’ Loan & Investment Company.-
    The England National Bank filed ,an answer and cross-complaint, and, by consent of all parties, the cases were consolidated for trial. Inasmuch as a demurrer was sustained to the cross-complaint by the chancellor, we need only set out the issues raised by the cross-complaint.
    The cross-complaint of the England National Bank alleges that the Tale Automobile Company was indebted to said bank on different dates for various sums of money, and to secure said indebtedness executed its several mortgages on certain automobiles, which are specifically described in the cross-complaint. Said mortgages were duly filed for record in Pulaski County, Arkansas. Copies of the mortgages are exhibited with the cross-complaint. In order to save cost, it is agreed that the exhibits A to J inclusive, which are copies of said mortgages, are identical in form, words and figures, except for the difference in car numbers and types as set out in the cross-complaint. It is further agreed that Exhibit K, which is a copy of one of the mortgages, is the form upon which all of them were prepared. We copy from this mortgage the following:

      “Whereas, party of the first part is indebted unto party of the second part in the sum of (amount) dollars ($ ), which is payable ninety days after date, and which is evidenced by the promissory notes of the party of the first part of even date herewith. This chattel mortgage is given as security to above note or any renewal thereof.
    “Whereas, party of the first part is to retain possession of automobiles above described as long as the party of the second part shall deem said debt and said security safe and secure, and as long as the conditions of this mortgage shall be faithfully observed and fulfilled, and the party of the second part may take possession of the automobiles above described at any time it may deem the security unsafe, or that the conditions of the mortgage are not being faithfully observed.
    “Now it is hereby agreed that the party of the first part will, until payment of the said indebtedness shall have been made in accordance with.the terms set forth, hold and keep all of said automobiles in brand-new condition, and will not operate any of them for demonstration or for any other purpose, and it is further agreed that said party of the first part will not sell, loan, rent, deliver, mortgage, pledge, or otherwise dispose of any of said automobiles until it shall first have paid to said party of the sécond part the amount which the party of the first part may desire to dispose of and shall have obtained from party of the second part an instrument of writing releasing the said automobile or automobiles from the lien of this instrument.”
    Another exhibit to the cross-complaint contains a copy of the form of notes prepared by the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation for the use of the Yale Automobile Company in selling cars to its customers. Title is retained in each car sold until it has been paid for, and the notes were transferred to the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation for money advanced by these companies to the Tale Automobile Company for use in carrying on its business.
    The exhibits to the cross-complaint are very voluminous, and for that reason we do not set them out. It is sufficient to say that it is fairly inferable from them that the Tale Automobile Company was a dealer in Chevrolet cars in the city of Little Rock, and, from time to time, transferred notes to the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation to secure money with which to carry on its business as such dealer in automobiles. These notes were on printed forms prepared by said companies, and retained title in the 'Car until the purchase price of the car was paid. There is no dispute about the Tale Automobile Company being indebted to the England National Bank, Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation. The mortgages executed by the Tale Automobile Company to the England National Bank were filed for record prior to the time the dealers’ notes above referred to were transferred by the Tale .Automobile Compaq to the. Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation.
    The chancellor was of the opinion that the mortgages by the Tale Automobile Company to the England National Bank were invalid as against bona ficle creditors of the Tale Automobile Company, and rendered a decree in favor of the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation. To reverse that decree the England National Bank has duly prosecuted an appeal to this court.

      J. A. Sherrill, for appellant.

      Frank II. Dodge, John W. Newman and Rogers, Barber S Henry, for appellee.
   Hart, C. J.,

(after stating the facts). At the outset, it may be stated that, under the practice in equity, exhibits to a complaint become, for all purposes of pleading, a part of the complaint, and consequently on demurrer may be used in aid of a defective statement in the complaint itself, and may he looked to for the purpose of testing the sufficiency of the allegations of the complaint. Moore v. Exelby, 170 Ark. 908..

It is fairly inferable from the allegations in the cross-complaint, when read in ■connection with the exhibits thereto, that the Yale Automobile Company was a dealer in Chevrolet cars during the time all the transactions involved in this suit were had. The exhibits show that the Yale Automobile Company sold cars to individuals and took notes for all or a part of the purchase money, retaining title in itself until the purchase price was paid. These notes were made on printed blanks furnished by the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation. This arrangement was made pursuant to agreements between the Yale Automobile Company and the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation, whereby the former was to borrow money from the two latter companies for use in its business and transfer said conditional sale notes to them in payment of the same.

The England National Bank had taken mortgages on all cars furnished to the Yale Automobile Company by the manufacturer of the cars and had duly filed said mortgages of record. All these chattel mortgages were filed for record before the cars were sold by the Yale Automobile Company to customers and conditional sale notes were taken for the purchase price thereof and transferred to the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation.

It is the contention of counsel for the England National Bank that the chattel mortgages given by the Yale Automobile Company were valid and gave it a lien prior to that which might be subsequently secured by the creditors of the Yale Automobile Company. We do not agree with counsel in this contention. We think the case is settled 'by the principles of law decided by the Virginia Supreme Court of Appeals in Boice v. Finance & Guaranty Corporation, 102 S. E. 591, 10 A. L. R. 654,

In that case the court held that property bought for ■the express purpose of daily indiscriminate sale to the general public, • exposed for such sale at the place of business of a licensed dealer, and over which the dealer is permitted to exercise the dominion of owner, cannot be made the subject of a valid chattel mortgage, though, as in the case of an automobile, it is of considerable size and value, and capacity of identification.

Inasmuch as this is the only case bearing directly upon the issues involved in the case at bar, we copy extensively from the opinion and adopt the reasoning thereof. The court said:

“It is a matter of common knowledge, and will therefore be judicially noticed, that, in the large cities, there are department stores in which a customer can buy almost anything from a nut-cracker to a threshing machine, from a doll carriage to an automobile. It would never occur to a customer that he must be on his guard to see whether the article was bulky, of large value, and easily susceptible of identification, and, if so, to examine the registry for liens thereon. Besides, many of the articles carried in such stores would be on the border line, and it would be unreasonable to require a purchaser to determine what could be mortgaged and what could not. To require an examination of the records for liens in such cases would break up the business, and indeed be an embargo on legitimate trade. Capital must seek a more substantial security for its protection. Otherwise, it were better that the few should suffer than the general public, who have been lured into purchasing from a dealer who has been intrusted with the indicia of- ownership. A purchaser in such case is not bound to see to the application of the purchase money.
“It is true that, as a rule, the seller of personal chattels cannot confer upon a purchaser any better title than he himself has; but, if the owner stands by and permits a seller, who is a licensed dealer in such goods, to hold himself out to the world as owner, to treat the goods as his own, place them with other similar goods of his own in a public showroom, and offer the same indiscriminately with his own to the public, he will be estopped by his conduct from asserting" his ownership against a purchaser for value without notice of his title. The constructive notice furnished by a recorded mortgage or deed of trust in such cases is not sufficient. The act of knowingly permitting the goods to be so handled and used by the seller in the ordinary and usual conduct of his business is just as destructive of the rights of the creditor as if such permission had been expressly granted in the mortgage or deed of trust.”

The case was decided upon the principle that, where one of two equally innocent persons must suffer, he should bear the burden whose conduct has induced the loss. In the present case, the England National Bank took mortgages from time to time upon the automobiles of the Yale Automobile Company, which were to be placed on sale and sold by said company. If these mortgages are to be considered valid, no one would be safe in purchasing a car from a dealer until he first went to the records at the county seat and made an examination to see if there was a chattel mortgage on the car which he was about to purchase, and he also would have to see to it that the mortgage was released or that the purchase price of the car was paid to the mortgagee.

The mortgage given by the Yale Automobile Company to the England National Bank contained a provision that the former company was to retain possession of the automobiles as long as the mortgagee deemed its security safe, and provided that the bank might take possession of the automobiles described in the mortgages at any time it might deem the security unsafe. It is also true that the mortgages contained a provision that the mortgagor agreed, until payment of the said indebtedness, to hold and keep all of said automobiles in brand-new condition and not to operate any of them for demonstration or for any other purpose; and agreed, further, not to sell, loan, rent, deliver, mortgage, pledge, or otherwise dispose of any of said automobiles until he should obtain from the bank an instrument in writing releasing the said automobile from the terms of the' mortgage.

This does not help the case of the bank any. Indeed, it shows that it was the obvious intention of the parties that the automobiles should be exhibited for sale; and, from the long course of dealing between the "parties and the number of mortgages given, it is plainly inferable that, while the mortgage stipulates against sale, conversion or removal of the automobiles without the written consent of the bank, the stipulation was waived, if its violation was knowingly permitted by the bank. It is plainly inferable from the length of the time the transactions in question were in progress, and from the number of mortgages taken by the bank, that it must have know that the automobiles were being sold and that the proceeds were not being applied to the payment of its indebtedness.

It is said in the case cited that it would be a travesty on justice and a fraud on the rights of third persons to permit a creditor to take such chattel mortgages as were taken in this case and immediately destroy their effect by permitting a use of the property inconsistent with the terms of the mortgages. In that case the court further said that it was immaterial whether the permission to use the property as owner was given contemporaneously with or subsequent to the mortgage. In either event it has the same effect as if it had been set out in the mortgage. The case cited above was followed by the Virginia Supreme Court of Appeals on the same day in O’Neil v. Cheatwood, 102 S. E. 596.

This view is in accord with our previous decisions bearing on the question. In Lund v. Fletcher, 39 Ark. 325, it was held that a mortgage of articles of meichandise left in the possession of the mortgagor, with power to sell in the ordinary course of business, is void except between the parties to it. The court had under consid-eration a mortgage of a stock of drugs, paints, glassware, etc., and the majority of the court approved the views on this question expressed by Chancellor Cooper of Tennessee, considering them based on good reason and sound policy. In adopting the views of Chancellor Cooper for the decision of the case, the court said: “That eminent jurist, whose ability, judicial temperament and profound study entitle his opinions to the highest consideration, whilst conceding that a mortgage may be made to cover after-acquired property, and that there may be left in the mortgagor a limited power of disposition, such as tools, machinery, rolling stock, etc., denies that such power or disposition consists with a valid lien on personal goods, which can only be profitably used as articles of commerce. He says that such a fluctuating lien,' opening to release what is sold, and to take in what may be purchased, is invalid in law, and not enforceable in equity. ’ ’

In Gauss Sons v. Doyle & Co., 46 Ark. 122, it was held that, when there is an agreement or understanding between the mortgagor and mortgagee of a stock of goods that the mortgagor may remain in possession of the goods and sell them as his own, the mortgage is as fraudulent and void as to other creditors as if the agreement were expressed in the mortgage; and, to arrive at their true meaning, the concurrent acts, surrounding circumstances and subsequent conduct of the parties are taken together for the consideration of the court or jury trying the issue. It was further held that it was against public policy for the mortgagor to remain in possession and sell the mortgaged goods, except as agent of the mortgagee.

This principle was again recognized in Felner v. Wilson, 55 Ark. 77, where it was held that a mortgage of a stock of goods was not invalidated by a provision that the mortgagor should retain possession of the property as agent of the mortgagee and sell for him. This view of the law is supported by the Supreme Court of the United States in Robinson v. Elliott, 22 Wall. 513.

The Citizens’ Loan & Investment.Company and the General Motors Acceptance Corporation were bona fide creditors of the Yale Automobile Company. We think that the England National Bank, in taking the -mortgages under the circumstances alleged in the. cross-complaint, can stand on no higher footing than one who sells to a retailer and gives him the power of sale to his customers.

Therefore we are of the opinion that the .mortgages given by the Tale Automobile Company to the England National Bank are void as to the claims of the Citizens’ Loan & Investment Company and the General Motors Acceptance Corporation against the Tale Automobile Company. It follows that the decree of the chancery court was correct, and must be affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Midland Valley Railroad Company v. Barkley.
    Opinion delivered February 14, 1927.
    1. Courts — interstate shipments — jurisdiction of state courts. —Under the Interstate Commerce Act, § 22, a State court has jurisdiction of an action against a railroad for failure to furnish cars for use in interstate shipments of coal, in violation of Crawford & Moses’ Dig., §§ 895, 951, since the Transportation Act (Acts of Cong, of Sept. 20, 1920) and act of Congress of Sept. 22, 1922, do not vest in the Interstate Commerce Commission exclusive power in the matter of distribution of coal-cars.
    2. Commerce — jurisdiction of interstate commerce commission.— A complaint alleging that the rules and orders of the Interstate Commerce Commission are unreasonable or unfair, or that they result in unlawful or unreasonable practice or in unjust discrimination or undue prejudice to shippers, would involve an administrative question - over which the Interstate Commerce Commission alone would have jurisdiction.
    3. Carriers — duty to furnish car service. — Under the Interstate Commerce Act (U. S. Comp. Stat. § 8563 et seq.) it is the duty of a carrier by railroad to make just and reasonable distribution of cars for transportation of coal among the coal mines served by such carrier, and, when the supply of cars available for service does not equal the requirements of the mines, it is the duty of the carrier to maintain just and reasonable ratings of such mines and count against such mines each car furnished for transportation of coal.
    4. Carriers — duty to furnish car service. — The- law requires a carrier to make reasonable effort to provide instrumentalities for accommodating the business of the localities which it assumes to serve.
    5. Appeal and error — invited error. — Appellant cannot on appeal complain that the court submitted an issue which it requested to be submitted to the jury.
    6. Trial — cautionary instructions. — A cautionary instruction telling the jury “if the majority are for the defendant (appellant) the minority ought to seriously ask themselves whether they may not be reasonable and ought to doubt the correctness of their judgment” held not an invasion of the jury’s province.
    7. New trial — misconduct op juror. — Alleged misconduct of a juror in riding back and forth from his home during the progress of the trial in plaintiff’s automobile, and paying for plaintiff’s dinner as return for such courtesy, held insufficient to justify setting aside of verdict.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    affirmed.
    O. E. Swam and Pryor, Miles & Pryor, for appellant.

      U. C. May and Evans £ Evans, for appellee.
   Wood, J.

Plaintiffs below, appellees here, instituted this action against the defendant helow, appellant here, to recover damages for failure to furnish cars in which to ship coal from appellees’ mine, located near Excelsior, in Sebastian County, Arkansas. Appellees alleged in substance that, in June, 1922, they were operating under a lease a coal mine on which they had expended and were expending large sums of money; that the appellant was an Arkansas corporation, having a line of railroad extending to appellee’s coal mine, over which appellee shipped coal in carload lots; that, about the date above mentioned, when the appellees were preparing to mine and load one car of coal per day from their mine, the cars containing an average of 45 tons of coal each, the appellant demanded of the appellees that they sell to the appellant their output of coal at a price of $3.75 per ton, when coal was selling on the market at a much greater price; that appellant threatened appellees that, unless they sold their output of coal to appellants at the above price, the appellant would refuse to furnish appellees with coal-cars; that appellees refused to accede to the demand of appellant, and appellant thereupon wrongfully refused to furnish the appellees coal-cars to ship the output of their mines, from August 1, 1922, until January 1, 1923, during which time the appellant only furnished to appellees twelve coal-cars. The appellees alleged that the refusal of appellant to furnish coal-cars compelled appellees to shut down their mine. Appellees then set forth in detail the damages alleged to have accrued to them by reason of the alleged wrongful failure of the appellant to fur-nish coal-cars as demanded by the appellees. The concluding portion of the complaint is as follows:

“But for the wrongful failure and refusal of defendant to furnish coal-cars as aforesaid, when and as requested and demanded by the plaintiffs, the plaintiffs would not have been compelled to give up their mine and lease, and plaintiffs could and would have mined, shipped and sold from their said mine from January 1, 1923, to September 1,1923, a period of eight months, twenty cars of coal during each of said months, or a total of one hundred sixty cars of coal during said period, and plaintiffs could and would have realized thereon a net profit of seventy-five dollars per car, or a total profit of twelve thousand dollars.
“The plaintiffs have sustained damages in the total sum of $33,676, as hereinbefore set forth in detail, as approximate result of the defendant’s wrongful failure and refusal to furnish plaintiffs coal-cars when and as requested and demanded by them in which to ship coal from their said mine. Wherefore the plaintiffs pray judgment against the defendant for the sum of $33,676, with interest, for costs of suit, and for all legal relief.”

The appellant demurred to the complaint on the ground that it did hot state a cause of action within the jurisdiction of the court, that “the act of Congress known as the Interstate Commerce Act, as amended by the Transportation Act and other acts of Congress amendatory thereof, confer exclusive authority upon the Interstate Commerce Commission in the matter of distribution of coal-ears and jurisdiction in matters of alleged failure to furnish the same.”

Appellant’s demurrer was overruled, and it answered, denying specifically the allegations of the complaint. It was alleged in substance that, under the orders of the Interstate Commerce Commission, certain rules and regulations adopted by the United States Railroad Administration in December, 1923, were in effect during the period alleged in the complaint. The appellant alleged that the appellees’ mine was what is termed a “wagon-load mine,” in that the coal produced at the mine was hauled in a wagon to the spur or switch-track upon which it was loaded into the cars, and was therefore not rated as mines loaded from a tipple were rated under the rules of the Interstate Commerce Commission. Appellees then set forth certain bulletins issued under the rules and regulations of the Interstate Commerce Commission fixing the rates for tipple mines, which it attached to its answer, and made' exhibits thereto. The appellant alleged that, notwithstanding the appellees’ mine was without a rating for furnishing cars under the orders and rules of the Interstate Commerce Commission,' the appellant did furnish appellees cars in which to load their coal, but, acting under the orders of the Interstate Commerce Commission, when unable to obtain a sufficient supply of open cars or regular coal-cars, appellant furnished to appellees box-cars in which to ship their coal, until the appellees finally refused to use such cars. The appellant further alleged that, from August 1, 1922, to January 1,1923, there was an unusual and unprecedented and unforeseen demand for cars in which to ship coal on appellant’s railroad, and that appellant was therefore unable to supply the demand for cars to ship coal from' wagon-load mines, and was not able to supply the demand for cars to mines that loaded directly into the cars by use of tipple. The appellant also set up that the claim of the appellees for damages accruing one year prior to the filing of the complaint was barred by the statute of limitations.

The testimony is exceedingly voluminous, and we deem it wholly unnecessary to set forth the testimony bearing upon the issue as to whether or not the appellant failed to furnish ears as alleged in the complaint, and, if so, the amount of damages appellees sustained by reason of such failure, because, if the trial court had jurisdiction of the action, we are convinced that the testimony was amply sufficient to sustain the verdict on the issue of whether or not the appellant failed to furnish cars and also as to the amount of damages which accrued to appellees by reason of such failure. The trial resulted in a verdict and judgment in favor of the appellees in the sum of $2,000. Judgment was entered in favor of the appellees for that sum, from which is this appeal.

1. Section 402 of what is designated as the Transportation Act of Congress, February 28, 1920, amends § 1 of the Interstate Commerce Act, approved May 29, 1917, to read as follows:

“(10). The term car service’ in this act shall include the use, control, supply, movement, distribution, exchange, interchange and return of locomotives, cars, and other vehicles used in the transportation of property, including special types of equipment, and the supply of trains, by any carrier by railroad subject to this act.
“ (11). It shall be the duty of every carrier by railroad subject to this act to furnish safe and adequate car service and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect to car service; and every unjust and unreasonable rule, regulation, and practice with respect to car service is pro-’ hibited- and declared to be unlawful. ’ ’

Paragraph (32) makes it the duty of carriers by railroads to make just and reasonable distribution of cars for transportation of coal among the coal mines served by them, whether located upon their own lines or lines dependent upon them for car supply. When the car supply is not equal to the requirements of the mines, it is the duty of the carriers to maintain and supply just and reasonable ratings of snob mines and to count each and every car furnished to or used by any such mine for transportation of coal, against the mine, and a penalty is attached for failure to comply with this provision.

Under paragraph 13 the Interstate Commerce Commission is authorized to order any or all carriers by railroad subject to the act to file with the Commission, from time to time, their rules and regulations with respect to car service, which rules and regulations shall be incorporated in their schedules, showing rates, fares and charges for transportation, and making the carrier subject to all provisions of the act.

Under paragraph No. 14 the Commission may, after hearing on a complaint, or upon its own initiative, establish reasonable rules, regulations and practices with respect to car service by railroads subject to the act, and prescribe a penalty for nonobservance of these rules, etc.

Under paragraph 15, whenever the Commission is of the opinion that shortage of equipment, congestion of traffic, or other emergency exists, with or without complaint, or on its own initiative and with or without notice to the carrier, and without hearing or filing of report, it is empowered (a) to suspend the operation of any or all rules, regulations, or practices then established with respect to car service, for such time as may be determined by the Commission; (b) to make such just and reasonable direction with respect to car service, without regard to the ownership, as between carriers of locomotives, cars, and other vehicles, during such emergency, as, in its opinion, will best promote the service in the interest of the public and the commerce of the people, upon such terms of compensation as between the carriers as they may agree upon, or, in the event of their disagreement, as the Commission may, after subsequent hearing, find to be just and reasonable, etc. 41 U. S. Statutes at Large, ch. 91, p. 476, § 402.

By an act of Congress, September 22, 1922, 42 U. S. Statutes at Large, p. 1025, an act was again passed entitled “An act to declare a national emergency to exist in the production, transportation, and distribution of coal and other fuel, granting additional powers to the Interstate Commerce Commission, providing for the appointment of a Federal Fuel Distributor, providing for the declaration of car-service priorities during the present emergency,” etc. Section 2 of that act provides, in part, as follows:

“That the powers of the Interstate Commerce Commission, under the act entitled ‘An act to regulate commerce’, approved February 4, 1887, as amended, including the Transportation Act, 1920, and especially under § 402 of said Transportation Act, 1920, are, during.the aforesaid emergency, enlarged to-include the authority to issue, in transportation of coal or other fuel, orders for priorities in car service, embargoes, and other suitable measures in favor of or against any carrier, * * * and to take any other necessary and appropriate steps for the priority in transportation and for the equitable distribution of coal or other fuel so as best to meet the emergency and to promote the general welfare, and to prevent, upon the part of any person, partnership, association or corporation, the purchase or sale of coal or other fuel at prices unjustly or unreasonably high. This act shall not be construed as repealing any of the powers heretofore granted by law to the Interstate Commerce Commission, but shall be construed as conferring supplementary and additional powers to said Commission and as an amendment to § 1 of the Interstate Commerce Act, and subject to the limitations and definitions of commerce controlled by said act, and all powers given said Interstate Commerce Commission shall be applicable in the execution of this act. ’ ’

Learned counsel for the appellant contend that it was the purpose of Congress, in the above enactments, to vest the Interstate Commerce Commission with supreme power in the matter of distribution of coal-cars, regardless of whether the coal was to be shipped in intra or interstate commerce. Counsel for appellant say: “It is the contention of the defendant that all State statutes and common-law obligations are swept away, as far as the transportation of coal, or the furnishing of cars in which to transport the same, by the provisions of the Transportation Act, and the later emergency act of September 22, 1922.” We cannot agree with counsel in this contention.

Section 8 of the Interstate Commerce Act, 24 Statutes at Large, p. 379 (1 Supp. to Revised Statutes of the United States, 529) provides as follows: “That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, ’ ’ etc.

Section 9 provides that “any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission, as hereinafter provided for, or may bring suit in his or their own 'behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction. ’ ’

Section 22 provides in part as follows: “And nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”

These provisions of the Interstate Commerce Act, approved February 4, 1887, were, not repealed, expressly or by implication, by the provisions of the Transportation Act of Congress of February 8, 1920, and the Emergency Act of September 22, 1922, upon which counsel for appellant reliés. On the contrary, the above provisions of §§ 8, 9 and 22 of the Interstate Commerce Act were in full force and effect when appellee’s causó of action is alleged to have accrued. Counsel for the appellees concede that the cars which it is alleged appellant failed to furnish were ordered for and to be used in interstate shipments. Such 'being the case, the provisions of § 22 of the Interstate Commerce Act supra, confer jurisdiction upon the State court. The question, we believe, is thoroughly settled against the contention of counsel for the appellant by decisions of the Supreme Court of the United States.

In Pennsylvania Railroad Co. v. Puritan Coal Mining Co., 237 U. S. 121, Mr. Justice Lamar, speaking for the court, said: “But §§ 8 and 9, standing alone, might have been construed to give the Federal courts exclusive jurisdiction of all suits for damages occasioned by the carrier violating any of the old duties which, were preserved and the new obligations which were imposed by the commerce act. And, evidently for the purpose of preventing such a result, the proviso to § 22 declared that ‘nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.’ * * * But for this proviso to § 22, it might have been claimed that, Congress having entered the field, the whole subject of liability of carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the State courts, and this clause was added to indicate that the commerce act, in giving rights of action in Federal courts, was not intended to deprive the State courts of their general and concurrent jurisdiction. ’ ’ It was further declared in that case concerning §§ 8, 9 and 22 of the Interstate Commerce Act, construing the same as a whole, that “it did not supersede the jurisdiction of State courts in any case, new or old, where the decision did not involve the determination of matters calling for the exercise of the administrative power and discretion of the Commission, or relate to a subject as to which the jurisdiction, of the Federal epurts had otherwise been made exclusive.”

And in the case of Pennsylvania Railroad Co. v. Sonman Shaft Coal Company, 242 U. S. 120, Mr. Justice Van Devanter, speaking- for the court, among- other things, said: “Thus we have held that a manifest purpose of the provision in § 22 is to make it plain that such ‘ appropriate common-law and statutory remedies’ as can he enforced consistently with the scheme and purpose of the act are not abrogated or displaced.” Then, after reviewing and reiterating the doctrine of the above case of Railroad v. Puritan Coal Co., supra, and other cases, he further says: “Applying these rulings to the case in hand, we are of the opinion that a State court could entertain the action consistently with the Interstate Commerce Act. Not only does the provision in § 22 make strongly for this conclusion, but a survey -of the scheme-of the act and of what it is intended to accomplish discloses no real support for the opposing view.”

In Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426, at page 446, Chief Justice White, speaking for the court, concerning § 22 of the Interstate Commerce Act, supra, said: “This clause, however, cannot be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot destroy itself. The clause is concerned alone with rights recognized in or duties imposed by the act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the act should be regarded as cumulative when other appropriate common-law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the act.”

The case of Midland Valley Railroad Co. v. Hoffman Coal Co., 91 Ark. 180, was an action by the coal company against the railroad company to recover damages for an alleged failure of the railroad company to furnish cars for shipment of coal for interstate shipments. The jurisdiction of the State court was challenged in that case, as-it is in this. We quoted the above clause from Railway v. Abilene Cotton Oil Company, and, among other things, said: “The case now under consideration involves the liability of the carrier to the shipper for an alleged breach of its common-law or contractual duty for its failure to furnish cars, and does not involve any infraction of the provisions of the interstate commerce act; and we are of the opinion that the suit was properly brought in the State court. This view, we think, is the logical result to be deduced from the reasoning of the authorities cited above and from the opinion of this court in the case of Holliday Milling Co. v. La. & N. W. Rd. Co., 80 Ark. 536. Hence the court properly overruled the demurrer to the jurisdiction of the court.”

The appellant sets up in his answer and maltes an exhibit thereto various orders and rules of the Interstate Commerce Commission and the rules adopted by the United States Railroad Administration relating to the supply and distribution of coal-cars, which were in effect during the period covered by the appellees’ action. We deem it wholly unnecessary to set out and comment upon these rules and the authorities upon which the appellant relies to support its contention that the State court was without jurisdiction. We have examined all these rules and considered the authorities, and especially the decision of the Interstate Commerce Commission in the case of Interstate Commerce Commission v. Victor American Fuel Co. and Salt Lake Rd. Co., of July 20, 1926, and we are convinced that these authorities have no application. As we construe the complaint, no attack is made by the appellees upon the rules and orders of the Interstate Commerce Commission relating to the supply and distribution of cars by railroads for the shipment .of coal. We cannot discover in the complaint any allegation to the effect that the rules and orders of the Interstate Commerce Commission are unreasonable or' unfair, that these rules themselves result in unlawful or unreasonable practice or in unjust discrimination or undue prejudice to shippers. That would involve an administrative question over which the Interstate Commerce,' Commission alone would have jurisdiction. • ■ •

As is said in Penn. Rd. Co. v. Puritan Coal Co., supra, at page 131: “In a snit where the rule of practice itself is attacked as unfair or discriminatory, a question is raised which calls for the exercise of the judgment and discretion of the administrative power which has heen vested by Congress in the Commission. It is for that body to say whether such a rule unjustly discriminates against one class of shippers in favor of another. Until that body has declared the practice to be discriminatory and unjust, no court has jurisdiction of a suit against an interstate carrier for damages occasioned by its enforcement. * * * But if the carrier’s rule, fair on its face, has been unequally applied and the suit is for damages occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the court being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage. Such suits, though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the State or Federal courts.”

The Interstate Commerce law which we have quoted above makes it the duty of carriers by railroads to make just and reasonable distribution of cars for transportation of coal among the coal mines served by such carrier, and, when the supply of cars available for service does not equal the requirements of the mines, it is the duty of the carrier to maintain and apply just and reasonable ratings of such mines and count against such mine each and every car furnished for transportation of coal. It is the duty of the carrier, under the Interstate Commerce Act, to furnish safe and adequate car service and to establish, observe and enforce just and reasonable rules, regulations and practices with respect to car service.

This is purely an action against the appellant company for its failure to furnish cars, which is its common-law and statutory duty, both Federal and State. But' the allegations of this complaint show that this action is bottomed upon appellant’s alleged failure to comply with its common-law or contractual, as well as statutory,' duty to furnish, cars under §§ 895 and 915, 0. & M. Digest. According to the above decisions of the U. S. Supreme Court and our own court, appellees had the right to maintain this action under § 22 of the Interstate Commerce Act. It follows that the court did liot err in overruling the appellant’s demurrer to the complaint.

2. No useful purpose could be subserved by setting forth and commenting upon the separate instructions given by the court, constituting its charge as a whole to the jury, in submitting the issue of appellant’s alleged failure to furnish cars. The appellant,' in its prayer for instruction No. 1, asked the court to instruct the jury to return a verdict in its favor, which prayer the court refused, and the ruling was correct. In its prayers for instructions numbered 2 and 3, and in a modification of prayer for instruction by the appellee, the court, in effect, told the jury that the burden was upon the appellee to prove that the appellant, in failing to furnish cars, had violated the act of Congress of February 28,1920, known as the Transportation Act, and the rules and orders of the Interstate Commerce Commission pursuant thereto, concerning the supply and distribution of coal-cars, and, if the jury so found, their verdict should be for the appellant. It follows, from what we have already said in discussing the question of jurisdiction, that the court erred in granting these prayers for instruction, but they were granted at the request of the appellant. The only issue, as we have seen, that the court should have submitted to the jury was whether or not the appellant wrongfully failed, neglected or refused to furnish the appellees cars for the shipment of coal from their mines, and, if so, the amount of damages appellees were entitled to recover by reason of such neglect, refusal or failure. The court submitted this issue to the jury, in instructions at the request of the appellees, in substantial conformity with the law as announced by this court in numerous decisions; some of the more recent being Gage v. Arkansas Central Rd. Co., 160 Ark. 402, 254 S. W. 665; C. R. I. & P. Ry. Co. v. Simms, 161 Ark. 289, 256 S. W. 33; and Express Co. v. Bald Knob Fruit Exchange, 162 Ark. 588, 258 S. W. 995. In the last case we said: “The law requires a carrier to make reasonable effort to provide instrumentalities for accommodating the business of the localities which it assumes to serve. This is not merely a statutory requirement, but it is an elementary principle originating in the common law.”

The instructions which the court gave, both at the instance of the appellant and the appellees, fairly submitted the issues to the jury, and the appellant is in no attitude to complain because the instructions which the ■court gave at its request introduced the issue of whether or not the appellant had violated the Interstate Commerce Act of February 28,1920, and the rules and orders of the Interstate Commerce Commission pursuant thereto. We are convinced that the appellant was not prejudiced by these rulings of the court in its favor, because there was testimony in the record to have warranted the verdict of the jury, even if the action had been based on violation of the Interstate Commerce Act and the orders and rules of the Commission passed pursuant thereto, it being assumed that those rules were, on their face, in every respect fair and reasonable.

3. It would unduly extend this opinion to set out all the instructions constituting the court’s charge. It suffices to say that we find no error prejudicial to appellant, when the charge is carefully analyzed as a whole. Instruction No. 6 of the instructions given by the court on its own motion is a cautionary instruction, which the appellant contends is the same instruction as that condemned by us in the case of McGehee & Co. v. Fuller, 169 Ark. 920, 277 S. W. 39. The special language of the instruction in the Fuller case complained of is as follows: “ On the other hand, if a majority are for the defendant, the minority ought to doubt the correctness of their judgment, which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.” The language of the instruction which the appellant asks us to condemn in the present case is as follows: “And, on the other hand, if a majority are for the defendant, the minority ought to seriously ask themselves whether they may not be reasonable and ought to doubt the correctness of their judgment which is not concurred in by most of those with whom they' are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”

After a careful comparison of the instructions, we are convinced that the language is not the same as that used in the Puller case, and the instruction in the present case does not invade the province of.the .jury. It does not direct or advise the minority of the jury that it is their duty to yield their own independent judgment to that of the majority. The language of the instruction quoted in effect but tells the jury that it is the duty of the minority to seriously compare their own views with the views of the majority and determine, in the light of the evidence, whether it is more reasonable that the majority should be mistaken in its conclusion than the minority. This part of the instruction, taken in connection with the other part thereof, is but cautionary to the jury, and tells them to endeavor to arrive át a verdict by reconciling, if possible, their conflicting views, but without any of them surrendering their own convictions for the sake of arriving at a verdict by mere acquiescence in the judgment of his fellows, without being really convinced of the correctness of such judgment. The instruction is not out of harmony with what we have said concerning cautionary instructions in the case of McGehee & Co. v. Fuller, supra, and in St. L. I. M. & S. R. Co. v. Carter, 111 Ark. 272, 164 S. W. 715; Simonson v. Lovell, 118 Ark. 81, 175 S. W. 407; and St. L. I. M. & S. R. Co. v. Devanty, 98 Ark. 83, 135 S. W. 802. Indeed, the instruction under consideration follows substantially the instructions that were considered and approved by the Supreme Court of the United States in the case of Allen v. United States, 164 U. S. 492-501, which were taken literally from a charge approved by the Supreme Court of Massachusetts in Commonwealth v. Tuey, 8 Cushing 1, and by the Supreme Court of Connecticut in State v. Smith, 49 Conn. 376, 386.

4. We have carefully examined the record concerning the alleged error of the trial court in refusing to set aside the verdict on account of the alleged misconduct of one of the members of the jury. One of the plaintiffs lived in the same neighborhood with the juror, whose conduct is challenged, both of them living in the country some ten or twelve miles from the county seat. This plaintiff, during the progress of the trial, and after the cause was finally submitted to the jury for its determination, allowed the juror whose conduct is challenged to ride back and forth in this plaintiff’s car. Other persons accompanied them. The juror, as a return for this courtesy and kindness on the part of this plaintiff, paid for the plaintiff’s dinner. It is not shown that there was any conversation between the juror and this plaintiff in regard to the case. All the parties who accompanied plaintiff back and forth in the car were required to be in attendance at court. Counsel for the appellant, who made the motion to set aside the verdict on this ground, stated that he knew the juror intimately and did not claim or allege any corruption or corrupt motives on his part; he was as far from that as any one, and counsel wanted the record to so show. Such being the facts, we are unwilling to say that the integrity of the trial was destroyed by the alleged misconduct of the juror. It cannot 'be said, under the showing made, that the plaintiff was endeavoring to influence in his favor the mind of this juror. It was conceded, and the court found, that the juror was a man of unimpeachable integrity.

In the case of St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768, we quoted from Brookhaven Lumber & Mfg. Co. v. Ill. Central Ry. Co., 68 Miss. 432, 10 So. 66, as follows: “While it cannot be too strongly insisted that the stream of justice shall be kept pure— so pure as to afford no suspicion of corrupt or improper intermingling of any foreign or hurtful matter — yet it must not be forgotten that no mere irregularities of beha- ■ vior in this day of greater and wiser freedom for jurors, at least in civil trials, will be permitted to disturb the stability of judicial procedure.” See also Bealmear v. State, 104 Ark. 616, 150 S. W. 129. In Jetton v. Toby, 62 Ark. 91, 34 S. W. 533, we held that the “treating, feeding, or entertaining of jurors by the parties or their counsel during .the progress of a trial in a cause in which they had been selected as a jury, whatever the motive might be, is highly improper and deserves severe condemnation.” But in that case we did not set aside the verdict because of the alleged misconduct, and it occurs to us it would be going too far, under the facts proved in this case, to attribute a corrupt motive to the conduct of the plaintiff and the juror involved. Counsel for appellant could hardly expect the trial court and this court to believe that a corrupt motive instigated the conduct, when counsel himself did not so believe. This we would have to do before we would be justified in setting aside the verdict.

Upon the whole case we find no reversible error in the rulings of the trial court, and the judgment is therefore affirmed.


author: Smith, J.

text:
    Sullivan v. Wilson Mercantile Company.
    Opinion delivered February 14, 1927.
    1. Equity — conclusiveness of verdict. — The verdict of a jury in a chancery case is advisory to, but not binding- on, the court.
    2. Equity — submission of issues to jury. — Where a, decree was rendered in accordance with the verdict of a jury in an equity case, it will he assumed that the court concurred in the jury’s finding, and that the verdict indicates what the court’s finding would have been, in the absence of a jury.
    3.- Landlord and tenant — wrongful dispossession — damages.— The lessee of farm land, having been wrongfully dispossessed by a purchaser from the lessor, was entitled to recover the difference between the fair rental value of.the demised promises and the rental value named in the lease.

      4. Landlord and tenant — wrongful dispossession — damages.—A lessee wrongfully dispossessed from farm land is not entitled to recover damages for a rake purchased to use on alfalfa to be grown on the land or for loss on hogs or cattle purchased for pasturing on the land, such damages being too remote.
    5. Appeal and error — trial of equity cases. — On appeal in an equity case, the trial is de novo.

    Appeal from Randolph Chancery Court; Lyman.P. Reeder, Chancellor;
    reversed.

      David L. King, for appellant.

      G. G. Dent and Walter L. Pope, for appellee.
   Smith, J.

Upon the former appeal in this case, reported in 168 Ark. 262, it was adjudged that appellant, Sullivan, had been erroneously enjoined from occupying a certain lease. The facts upon which that conclusion was based are stated in the former opinion, and need not be restated here. Appellant has asked a dissolution of the injunction and ah award of damages, but that relief had been denied because, in the opinion of the trial court, appellant’s lease was void. We reversed that finding, and, in doing so, said that, if appellant’s cross-complaint had been an independent action for damages, his remedy was complete at law, and he could not have invoked the jurisdiction of a court of equity, but, as appellee had obtained an injunction which had deprived appellant of substantial rights, the latter was entitled, under the statute, to a restitution of the possession of the lease of which he had been deprived by the injunction and to an assessment of damages sustained by reason thereof. Sections 5822 and 5825, C. &. M. Digest, were cited in support of the law as there stated.

We held that the effect of the dismissal of appellant’s cross-complaint was to dissolve the injunction, and that appellant was entitled to the relief provided under the statute cited, and it was ordered that the decision of the court below be reversed, and the cause remanded with directions to the court to make an order of restitution and to assess the damages in accordance with the statute. That opinion was handed down March 23, 1925. Upon the remand the order of restitution was made at the September, 1925, term of the court, and it was ordered that a jury be selected and impaneled on the 26th day of October, 1925, to assess the damages.

The restitution appears to have been delayed and never made, by reason of an intervention filed by W. H. Kelley, which was later dismissed, so that, tvhen the trial of the question of damages came on to be heard, appellee was still in possession of the land. The lease had therefore practically expired when the cause was heard.

Section 5822, C. & M. Digest, referred to in the former opinion of the court, provides that, upon the dissolution of an injunction, the court may, in its discretion, cause a jury to be impaneled to assess the damages, and this was done. Upon the trial before the jury there was a verdict in appellant’s favor for the sum of one cent, and a judgment accordingly, from which is this appeal.

It may be first said that the verdict of a jury in a chancery case is advisory to, but not binding on, the court.. Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049. But, inasmuch as the decree was rendered in accordance with the verdict of the jury, it must be assumed that the court coincided with and concurred in the finding of the jury, and that the verdict indicates what his own finding would have been, had he passed upon the question originally without the intervention of a jury.

It appears, from the facts stated, that appellant was never at any time in possession of the land leased. He had not expended any money in the cultivation or an attempt to cultivate the land. The measure of damages is therefore the difference between the fair rental value of the demised premises and the rental value named in the lease, and the court so instructed the jury. Reeves v. Romines, 132 Ark. 599, 201 S. W. 822; Morrison v. Weinstein, 151 Ark. 255, 236 S. W. 585.

The question presented on this appeal is therefore one of fact, and we will not review the testimony of the witnesses in detail. . •

The land leased embraced twenty-one acres, and the agreed rental was $10 per acre per annum. The lease covered the years 1923, 1924 and 1925. Seventeen acres of the land were in alfalfa and the remaining four acres in Bermuda grass. The testimony of all the witnesses appears to be that the land in Bermuda grass was worth about $10 per acre per year, which was the agreed rental, so we need not consider it further.

The testimony on appellant’s behalf was to the effect that the alfalfa could have been cut from three to five times, and would have yielded in 1923 as much as sixty tons, which would have been worth from $25 to $30 per ton. Most of the alfalfa land was planted in corn in 1924, and all of it was so planted in 1925. The testimony was in conflict as to what the yield in corn for these two years would have been, but we think the preponderance of the testimony shows a production which would have made the rental value greater than the agreed value.

The testimony on the part of appellee concerning the rental value of the alfalfa land shows its value to be less than that stated by appellant and his witnesses, but we think the testimony in its entirety shows that this alfalfa land was worth substantially more than the agreed price.

In the case of Reeves v. Romines, supra, it was held that “ ‘rental value’ is not the probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for, or by evidence of other facts from which the fair rental value may be determined. ’ ’

The value of the alfalfa was not therefore the measure of the rental value of the land, but the tenant was entitled to cut and appropriate it, and the probable yield of the crop and its value was therefore a proper circumstance to consider in determining what the rental value of the land was, its condition considered, at the time the lease was made. So also was the probable productivity of the land in corn, the crop which was subsequently planted, and, when these elements are all considered, we conclude that the lease for the three-year period of its duration was worth $300 more than the agreed price. Had appellant been allowed to occupy the land, as his lease entitled him to, he would have had the right to determine the kind of crops which he would plant and the right to plant the ones which would have been most profitable.

Appellant discusses various items, aggregating $1,650 which he says should be allowed him as damages. Among these are a rake which he bought to rake his alfalfa, and which became worthless to him when he lost the alfalfa field. Other items include a loss on hogs and cattle which he bought to pasture on the land. These items are not recoverable elements of damage, as they are too remote.

We conclude therefore that the judgment should have been rendered in appellant’s favor for a substantial amount, and we have concluded, from a consideration of all the testimony; that three hundred dollars fairly represents the difference between the. actual and the agreed value, and, as we' try the case here de novo, the decree of the court below will be reversed, and a decree entered here in appellant’s favor for that amount.


text:
    McKay v. McKay.
    Opinion delivered February 14, 1927.
    1. Divorce — former decree as bar. — rA decree dismissing a wife’s suit for divorce on the ground of' cruel and inhuman treatment, brought before a cause of action for desertion had accrued, did did not bar her subsequent suit on the ground of desertion brought after such desertion had continued for the required year:
    2. Divorce — bar of cause 0f action. — A decree of dismissal, in a wife’s suit for divorce 0fC;.the ground of cruel treatment, is conclusive of the fact that the wife-was not driven from home by the husband’s cruel treatment; in a subsequent action by her on the ground of desertion. , ■
    3. Divorce — evidence of desertion. — In an action for divorce on the ground of desertion, evidence that the parties have been separated for more than a year and that there was no justification for the desertion establishes a prima, facie case.
    4. Divorce — desertion—completed cause op action. — If one spouse leaves another without cause and absents himself or herself from the innocent spouse for a year, a completed cause of action for divorce arises.
    5. Divorce — desertion—offer to renew cohabitation. — One who without cause deserts his spouse for a year cannot, by offering in good faith to return, destroy the completed cause of action for a divorce.
    6. Divorce — condonation.—Desertion, like any other cause for divorce, may be condoned, but the right of condonation lies with the innocent, and not with the guilty, spouse.
    7. Divorce — offer to renew cohabitation. — A wife’s desertion did not entitle the husband to a divorce on that ground, where, before expiration of a year and maturity of the cause of action against her, she in good faith offered to return and live with her husband.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Price Shofner, for appellant.

      B. 8. Kinsworthy, for appellee.
   Smith, J.

Appellant and appellee were married in 1917 and lived together until October, 1923, at which time they separated. Appellant brought suit for divorce, alleging cruel and inhuman treatment on the part of appellee, her husband. At the trial of this suit in March, 1924, the court denied appellant’s prayer for divorce, and dismissed her complaint.

In October, 1924, appellant employed a different attorney and brought a second suit for divorce, alleging, in substance, the same grounds recited in the first complaint; but this suit appears to have been dismissed.

In May, 1925, appellant employed her present attorney and brought this, her third, suit for divorce, in which she alleged that appellee had deserted her. Appellee filed an answer and cross-complaint, in which he denied that he had deserted appellant, but alleged the fact to be that she had deserted him and had continued her desertion for the period of more than one year, and had annoyed him with frivolous suits for divorce, and he pleaded the decree in the first suit as a bar to the present cause of action.

At the trial from which the present appeal comes the prayer of appellant for a divorce was refused and that of appellee granted. At this trial numerous witnesses were examined, but we think no useful purpose would be served in setting out this testimony in detail.

We think the present suit of appellant is not barred by the decree in the first suit, for the reason that she .alleges a different cause for divorce, one which could not have existed when she filed her first suit — that of desertion — as the parties had not been separated a year when the first suit was commenced. I Nelson on Divorce and Separation, § 555.

It is true, as is insisted by. counsel for appellee, that appellant left appellee without sufficient cause, and the parties have since been separated for more than a year. The decree in the first cause, wherein cruel treatment is alleged, is. not, as we have said, a bar to the present suit, wherein desertion is alleged as the ground for divorce; but the first decree is conclusive of the fact that appellant was not driven from her home by appellee’s cruel treatment. The court was correct therefore in holding that it was appellant who had deserted appellee, and not he who had deserted her.

It is true also that the parties have since been separated for more than a year. This makes a prima facie case of desertion, inasmuch as appellant had left appellee without justification for so doing, but we think it very clearly appears that, before the desertion had continued for a year — and thereby become a statutory cause for divorce — appellant attempted, in good faith, to effect a reconciliation with appellee. She expressed her willingness and desire to return to appellee and to live with him, and he has shown no cause for refusing to permit her to return, except that she left him and instituted a suit for divorce without having legal right to that relief.

If one spouse leaves another without cause and absents himself or herself from the innocent spouse for the period of a year, a completed cause for a divorce arises, and, when the cause of action has been thus perfected, the offending spouse cannot, by offering, in good faith, to return to the conjugal relation, destroy. the right of action which the other has to sue for a divorce. Desertion, like any other cause for divorce, may be condoned, but the right of condonation lies with the innocent spouse, and not with the guilty one.

In the chapter on Divorce and Separation in 9 R. C. L., § 148, it is said: “If a statute declares that divorce may be granted for desertion for a time specified, there seems to be no dissent from the proposition that desertion continued for such period creates a perfect right to a divorce which it is beyond the power of the party in the wrong to destroy without the consent of the other. Hence an offer to discontinue the desertion and return to and live with the deserted spouse, though made in good faith and before the institution of any suit for divorce, cannot, unless accepted, constitute any defense to such suit.” The cases cited in the note to the case of Allen v. Allen, 73 Conn. 54, 46 A. 242, 84 A. S. R. 135, sustain the text quoted.

But, before the desertion had continued for a year — ■ and therefore before appellee’s cause of action had matured — appellant offered more than once, and, we think, in good faith, to return to and live with appellee, and when she did this the desertion on her part ceased.

We conclude therefore that the court was in error in holding that appellant had deserted appellee.

In the case of Griffin v. Griffin, 166 Ark. 85, 265 S. W. 352, we said that “the court cannot grant a divorce because the parties have become dissatisfied with the marriage yoke. In such cases the parties must, by mutual concessions, make the yoke lighter. ’ ’

Appellant, by her recantation and offer to return to appellee, terminated the desertion, and she did so before her desertion matured as a cause for divorce in appellee’s favor, and it was error therefore to grant him a divorce.

. We have concluded that the decree granting appellee a divorce should be set aside, and it is so ordered, and the cause will be dismissed.


author: Humphreys, J.

text:
    Johnson v. White.
    Opinion delivered February 14, 1927.
    1. Wills — testamentary intent. — To constitute a will, a writing must itself evidence a present purpose to declare a bequest, and not merely intention to make such a provision in the future.
    2. Wills — testamentary intent. — A husband’s letter to his wife, expressing his intention to have his war risk insurance policy transferred to her, cannot be interpreted as a will, and is not entitled to probate as a holographic will.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      J. N. Rachels and Hays, Priddy & Rorex, for appellant.

      John E. Miller and Culbert L. Pearce, for appellee.
   Humphreys, J.

This is an appeal from the judgment of the circuit court of White County dismissing the petition of appellant for the probate of a paper writing attached thereto as the holographic will and testament of Fred C. Johnson, deceased, and quashing the judgment of the probate court of said county, entered on January 12, 1925, of record in book N, at page 432, wherein appellee was contestant and appellant was contestee.

The writing or purported holographic will and testament is as follows:

“Oct. 7, 1918. Camp Pike, Arkansas. My darling little girl. How is my darling little wife tonight? Fine, I hope. I am just fine as I told you. I am going to have my policy changed from Esther to you, for it is my will and wishes is for you to have it. I told Arby to watch the mail box and send it to me, for I wanted you to have it. I must go for this time. Hoping to see my dear little wife soon.
“From your H. Fred Johnson, C. C. H. First Tr. Reg.”

There is nothing in the writing evidencing an intent on the part of the writer to bequeath by, through or under the instrument his war risk insurance policy to his wife, the appellant herein. The writing must itself evidence a present purpose of declaring a bequest before it can be characterized as a will. If it merely evidences an intention to make such a provision in the future, then such instrument cannot be interpreted as a will. Cartwright v. Cartwright, 158 Ark. 278, 266 S. W. 11. In the Cartwright case we interpreted the language used in a letter as being sufficient to meet'the requirements of the rule announced above. The language in that case was as follows:

“I have to pay insurance and Liberty bonds out of my part, then you will get the $5,000 when I die, so you should not want for anything.”

The language in the present case does not pretend to declare a present bequest of the writer’s war risk insurance policy, but is merely a message to the effect that the writer intends at a future date to change the beneficiary in his policy from appellee, his sister, to appellant, his wife, because it was his will and wish for her to have it. He did not attempt to give it to her in the letter or to use the letter as a means of bequeathing it to her.

We are unable to interpret the letter in'the instant case as being a testamentary document, hence it was not entitled to probate as a holographic will.

The judgment is therefore affirmed.


text:
    Southern Surety Company v. Simon.
    Opinion delivered February 14, 1927.
    1. Highways — suit on contractor’s bond. — A complaint alleging that one of two defendants contracted with the county to build a highway and to pay for all labor performed and material furnished in constructing it, and to give bond therefor, and alleging that the other defendant became surety in the bond and liable for coal furnished to the contractor, and alleging that the contractor turned over to the surety all of its assets, the surety to discharge all debts incurred by the contractor in constructing the highway, held to base liability of the surety on the bond given by it under Crawford & Moses’ Dig., §§ 6913, 6914.
    2. Highways — liability on contractor’s bond. — A materialman’s claim for coal furnished to a highway contractor and used in running a steam shovel to load shale on trucks for the purpose of hauling it out on the roadbed held not within the protection of the bond for payment by the contractor for labor and materials furnished in constructing the highway, under Crawford & Moses’, Dig., §§ 6913, 6914.
    3. Highways — contractor’s bond — limitation.—Suit on a highway contractor’s bond for payment of claims of laborers and materialmen, brought eight months after the work was completed and accepted by the county, was barred by limitation, under Crawford & Moses’ Dig., § 6914.
    4. Highways — liability op contractor’s surety. — Evidence held insufficient to go to the jury in suit by materialman against surety ■of the county highway contractor on the ground that the surety took over all of the contractor’s assets and assumed its liabilities.
    Appeal from Sebastian Circuit Court, Fort Smith District; Jolm E. Tatum, Judge;
    reversed.

      James B. McDonough, for appellant.

      Webb Covington, for appellees.
   Humphreys, J.

This suit was instituted by appellees against the Otto Y. Martin Construction Company and appellant, in the municipal court of Fort Smith, to recover $192.10 for coal sold and delivered by them to said construction company and used by it in preparing materials for constructing a highway from Fort Smith to 'Greenwood, in Sebastian County. A judgment was obtained in the municipal court in favor of appellees herein, from which an appeal' was prosecuted to the circuit court of Sebastian County, Fort Smith District, where, upon trial de novo, appellees again obtained a judgment for the full amount claimed, from which the Southern Surety Company has duly prosecuted an appeal to this court.

The gist of the complaint was that the Otto Y. Martin Construction Company entered into a contract with Sebastian County to build a highway from Fort Smith to Greenwood according to certain plans and specifications, agreeing to pay for all labor performed and materials furnished in constructing same, and to furnish a satisfactory bond for- the faithful performance of the contract and the payment of said labor and material; that appellant herein became a surety upon the bond and liable thereunder for coal of the value of $192.10 delivered to the Otto V. Martin Construction Company for use in working upon the highway, for which they were not paid; that the bond contained the following paragraph:

“In case of default on the part of the principal, the surety shall have the right, if it so desires, to assume and complete or procure the completion of said contract; and, in case of such default, the surety shall be subrogated and entitled to all the rights and property of the principal arising out of the. said contract and otherwise, including all securities and indemnities theretofore received by the obligee and all deferred payments, retained percentages and credits due to the principal at the time of such default or to become due thereafter by the terms and dates of the contract.”

That, after receiving the coal, the Otto Y. Martin Construction Company turned over to appellant herein all its assets of every kind and description, the latter to pay off and discharge all the debts incurred by the former in the construction of the highway, including the pay for coal furnished by appellees herein.

The Southern Surety Company, appellant herein, admitted the execution of the surety bond, but controverted all the other material allegations in the complaint and any liability thereunder, and, as an additional defense, pleaded that the suit upon the bond was barred under the statute for failing to bring suit thereon within six months after the completion of the road.

The facts in the case are undisputed. The alleged contract was entered into and a surety bond for the faithful performance thereof was executed by appellant herein under §§ -6913 and 6914 of Crawford & Moses’ Digest. The coal was furnished by appellees to the construction company between August, 1923, and March, 1924, and was used by it in running a steam shovel to load the shale on trucks for the purpose of hauling same out on the roadbed. On January 10, 1924, the construction company breached its contract, and the appellant herein was notified by the county to take over the work and complete the road, which it did. As the work progressed it collected all money possible from the county, but received none that had been earned by the construction company before breaching the contract. It paid all debts which were liens upon the highway and turned the road over to the county on the first of August, 1924. It did not agree with the construction company or county to pay the debts incurred by the construction company when it took the hig'hway over on June 10, 1924, to complete same. This suit was brought eight months after the work was completed and the county received the road.

We think the declaration was one upon the bond, and that no liability existed against appellant thereon, for two reasons. First, the claim for supplying’ coal was not within the protection of the bond; and second, the suit was barred for failure to bring it within six months after the improvement was completed.

(1). In construing language in a bond and statute given under § 5446, Crawford & Moses’ Digest, similar to the language used in the instant case relative to the character of the claims covered, it was said, in the case of Pierce Oil Company v. Parker, 168 Ark. 400, 271 S. W. 24, that:

“We do not think that oil or other fuels used in operating motor trucks engaged in hauling stone for the construction of an improved highway can fairly and justly be said to be supplying materials to be used in the prosecution of the work. As above stated, oil so used is only incidental to the operation of the motor trucks, and can be no more considered materials used in the prosecution of the work than the motor trucks themselves or the repairs on them. ’ ’

(2). The action of the bond was barred under § 6914 of Crawford & Moses’ Digest at the time same was instituted. If the declaration could be interpreted as one of alleged liability on the ground that appellant took over all of the assets and assumed the liabilities of the construction company, the proof was insufficient to support such an allegation. The undisputed evidence revealed that appellant appropriated none of the assets of the construction company and made no independent agreement to pay the indebtedness of it. Appellant used some of the equipment of the construction company in finishing the highway, but returned it when the road was completed.

Under the undisputed proof the court should have directed a verdict for appellant.

On account of the error indicated the judgment is reversed, and the cause is dismissed.


author: Mehaeey, J.

text:
    O. L. Gregory Vinegar Company v. National Fruit Canning Company.
    Opinion delivered February 14, 1927.
    1. Depositions — right to bead. — Depositions taken on notice by one party cannot be read in evidence by tbe other party.
    2. Depositions — bight to bead. — Depositions taken by agreement of the parties become the property of both parties, and either had a right to read it in evidence, though the agreement stated that the deposition might be read in evidence in defendant’s behalf.
    3. Sales — instruction.—In an action for the price of apple juice sold for making vinegar, an instruction to find for plaintiff if the apple juice at the time of placing same in barrels was reasonably suitable for vinegar making, held not error.
    4. Trial — conflict in instructions. — In an action for the sale price of apple juice sold for making vinegar, an instruction to find for the plaintiff if the juice at the time of its manufacture Was reasonably suitable for vinegar making was not in conflict with defendant’s instructions that the juice must be suitable for vinegar.
    Appeal from Sebastian. Circuit Court, Fort Smith District; John E. Tatum,, Judge;
    affirmed.

      James B. McDonough, for appellant.

      Hill & Fitzhugh, for appellee.
   Mehaeey, J.

This is the second appeal in this case. The opinion in the case on the former appeal is in the 167 Ark. 435, 258 S. W. 598.

The court, in the former appeal, construed the contract and held that it -was one to furnish a commodity for a particular use, and that there was an implied warranty that it was suitable for the particular use for which it was purchased, unless the purchaser actually inspected the method by which the commodity was to be produced or was advised as to such methods and what the contents of the juice would be. The court also stated that the purchaser of an article to be manufactured is not denied the benefit of an implied warranty merely- because he may have had an opportunity to inspect the process of manufacture, but, if the purchaser does in fact inspect, and knows at the time he makes the contract what the article is to be, there is no implied warranty. The purchaser has the right to assume, when he has no opportunity to inspect the article itself, that it will be manufactured so as to be fit for the use for which it is intended.

The contract stated that the purchase of the apple .juice was not for beverage purposes, but for making vinegar; hence, under the ruling of the court in the former appeal, the contract provided for the furnishing of a commodity for that particular use, that is, for vinegar making.

It would serve no useful purpose to set out the testimony at length in this case. It was sufficiently set out when the ease was here before.

The appellant’s first contention is that the court erred in admitting- in evidence the deposition of J. P. Harris. It is contended that the deposition was not taken on any agreement that it might be read by the appellee, and it therefore contends that the appellee could not read the deposition, although it was taken by agreement, because it was agreed that it might be taken and read in evidence on behalf of defendants. Although the agreement stated that the deposition might be read in evidence in behalf of the defendant, it was nevertheless taken by agreement, and the agreement contemplated that the deposition would be read at the trial, and, if it did, then either party could read it. This court has said with reference to the depositions taken by agreement:

“The plaintiff, during the introduction in chief of her testimony, had a right to assume that the defendant would read the deposition which it had caused to be taken; and, after the defendant failed to do so, it was not an abuse of the court’s discretion to allow the plaintiff to read the deposition after the defendant had concluded the introduction of testimony.” Western Union Tel. Co. v. Hanley, 85 Ark. 263, 107 S. W. 1168.

Depositions taken upon notice by one party cannot be read in evidence by the other party. There would seem to be no reason for holding that depositions taken by agreement might not be introduced in evidence by either party. Certainly one need not sign an agreement to take depositions unless he has ample opportunity to examine the witness, and unless he is willing that the deposition may be read by the other party. This court has said: his adversary to do so if taken in his behalf.’’ Greenville Slone (B Gravel Co. v. Chaney, 129 Ark. 95, 195 S. W. 13.

“It is only where depositions are taken pursuant to agreement that they are to be read at the trial, that they become the property of both parties, so that either party may read them, if taken for their joint benefit, or compel

Again: ‘ ‘ It is insisted, however, that the evidence of Hannah Norman, to the effect that she paid the purchase price, cannot be considered because her deposition was taken by the plaintiffs, and counsel invokes the rule that a party to an action has no right to read a deposition taken by his adversary. Her deposition -was taken pursuant to an agreement between the attorneys for the respective parties, and therefore did not fall within the rule invoked by .counsel for the plaintiffs. The deposition, having been taken by agreement, became the property of both parties, and either party had the right to read it to the jury.” Shenoy v. Phipps, 145 Ark. 121, 224 S. W. 393.

The deposition in this case was taken by an agreement of parties, and, .under the law as announced by this court in numerous cases, when so taken it became the property of both parties, and either had a right to read it in evidence.

The appellants’ next contention is that the court erred in giving instructions. Instruction No. 1, given at the request of plaintiff's, was merely a statement of the issues as stated in the pleadings, and no specific objection was made to it, and there is no discussion of it here by the appellant. No objection is made by appellant to instruction No. 2, except that it is in conflict with other instructions. Defendant .only made general objections to the ruling of the court, no specific objections or exceptions having been made when the instructions were given.

It is earnestly insisted that instruction No. 3, requested by the plaintiffs and given by the court, is erroneous, and violates the rule laid down by this court on the former appeal. We do not agree with the counsel in this contention. Certainly the latter part of said instruction, which reads as follows: “And, if you further find that the juice, at the time of its manufacture and the placing of the same in barrels by the plaintiff at Seattle,- Washington, was reasonably suitable for vinegar making, then your verdict must be for the plaintiff, ’ ’ is a correct statement of the law, and the objection to the instruction' made in the court below was a general objection, and, if the appellant thought at the time that it was open to the objection now urged by it, it was its duty to call the trial court’s attention to the objection, and this it did not do.

The same objection is urged to instruction No. 4, to which the same answer may be made; that is, that the specific objection should have been -called to the attention of the trial court, and a request there made for a correction of the instruction or the elimination of the objectionable part of it. In other words, the objection should have been made specific. All of the instructions given at the request of the plaintiff, we think, substantially comply with the ruling of the court when this case was here on former appeal, they were given to understand clearly that the juice must be such as was reasonably suitable for making into vingar; that is all that the contract required. Moreover, an instruction requested by defendant and given by the court submitted the same issue to the jury, and we do not think there was any necessary conflict in the instructions given. They were told, in defendant’s first instruction, that the plaintiff had obligated itself to sell apple juice pressed from peelings, core and waste, and that said juice must be suitable for vinegar making; and also this instruction contained the statement that, if the juice contained a sufficient quantity of salt, so as to render it unusable for vinegar making, then the plaintiff cannot recover.

Appellant’s instruction No. 2 also contained a similar statement. It would serve no useful purpose to comment on all the instructions given and the instructions refused by the court. We have reached the conclusion that the issues were fairly submitted to the jury and that the instructions, when considered together, clearly stated the law as laid down in the former appeal in this case.

When this case was in this court before, all the principles of law governing it were announced. In this case the instructions given as a whole were at least a substantial compliance with the rulings there announced, and we find no reversible error, and the case is - therefore affirmed.