text:
    Sanders v. Wilmans.
    Opinion delivered June 25, 1923.
    1. Highways — construction op special act. — Special act of extra session of 1920, relating to Road Improvement District No. 2, Jackson County, organized under the Alexander law (Crawford & Moses’ Dig., § 5399 et seq.) did not attempt to change its organization as an existing entity, and, except as it conflicted therewith, did not repeal §§ 5426-8, providing for including benefited lands in a district already organized, and containing nothing which prevented the district from incorporating new territory into the district.

      2. Highways — consent op landowners to annexation of terri- • TORY to improvement district. — There being no constitutional requirement that the consent of property owners must toe obtained for the formation of a highway improvement district lying partly outside of a municipality, Craw'ford & Moses’ Dig., §§ 5426-8, providing for the inclusion in an organized improvement district of adjacent lands benefited thereby is not invalid because owners in the annexed territory have no opportunity to be heard on the question of the organization of the district.
    3. Highways — organization of improvement district — collateral ATTACK. — In proceedings to annex benefited territory to an organized improvement district, the original organization of the district is not subject to collateral attack for errors or irregularities merely, but only for lack of jurisdiction appearing on the face of the proceedings.
    4. Highways — conflict between petition and maps. — Finding of the county court that there was no conflict between a petition for organization of a road improvement district and the plat or map filed therewith, held, under the evidence, to be conclusive on collateral attack.
    5. Highways — remonstrance against annexation of territory to district. — Where a paragraph of a remonstrance against the annexation of territory to a road improvement district charged that the notice of the organization of the district described lands not mentioned in the petition or in the order creating the district, a demurrer to such paragraph was properly sustained, for the reason that the paragraph stated a mere conclusion.
    6. Highways — annexation of territory to district. — It is no ground for denying the anexation of additional territory to a road improvement district that the commissioners of the district have .exceeded their authority in constructing with funds of the district a part of the road not authorized in the organization of the district.
    7. Highways — improvement district — inclusion of urban property. — Urban real property which is benefited by a rural road improvement may be included in the district in order that it may contribute from the benefits received to the cost of the improvement.
    8. Highways — failure to annex benefited lands. — An order annexing contiguous benefited lands to a road improvement district created under the Alexander law (Crawford & Moses’ Dig., § 5399 et seq.) is void where it fails to include all the benefited lands, though the original organization is not invalidated thereby, •since the statute provides for annexing all benefited lands.

      Appeal from Jackson Circuit Court; Dene E. Coleman, Judge;
    reversed.

      Boyce & Mack, Jno. W. and Jos. M. Slayton, Thos. B. Pryor, H. L. Ponder, Thos. S. Busbee, Geo. B. Pugh and E. T. E arris on, for appellant.
    The action of the commissioners in designating the benefited lands in their special report and the order of the county court responsive thereto are both void as being arbitrary and discriminatory. Territory in the city that would necessarily be benefited was left out. 130 Ark. 74; 139 Ark. 574; 142 Ark. 73; 145 Ark. 49. Demurrer should not have been sustained to sixth ground of appeal set out in the affidavit and prayer for appeal of H. C. Sanders. The appellee road district, under provisions of Act 390, has entirely different powers and authority from a road district organized under the general road law, act 338, Acts 1915, under which it was organized. 150 Ark. 94. If appellant’s property had been included in the district when it was created, the variance between the petition and the plots, the order creating the district, and the notice of the hearing of the petition could have been raised by them to invalidate the district. 147 Ark. 352; 113 Ark. 566; 50 Ark. 116. The lower court erroneously held that they could not raise the question now, since it would be a collateral attack on the judgment. The authority for annexation of lands is contained in § 15 of the Alexander law. The said variance defeated the jurisdiction of the county court to create the district. If the remonstrances of appellants can be said to be a collateral attack on the ■order of the county court creating the district, the lower court erred in sustaining the demurrer, the jurisdiction of the county court was in issue, and a judgment is always open to collateral attack for want of jurisdiction. 142 Ark. 509; 127 Ark. 165; 59 Ark. 483; 64 Ark. 108; 124 Ark. 234; 127 Ark. 310 ; 23 Cyc. 1081, note 50. Doctrine of collateral attack does not apply, there having been no prior opportunity for attacking organization of district. Page & Jones, Taxation by Assessment, § 1008. The landowner whose property is later annexed to the district should have the same right and time 'to question the validity of the1 district as have the owners whose lands were included when district was organized. 123 Ark. 205; 133 Ark. 498. Certainly appellants had no status to complain of invalidity of district before these lands were included in it.

      Gustave Jones and Rose, Hemingway, Cantrell & Loughborough, for appellees.
    The testimony shows that the city of Newport is within a mile and a half or two miles of the west end of the main road artery, and witnesses were of opinion that the road would greatly increase the travel to and trade within that city. 251 IT. S. 182. Said city is adjacent to and benefited by the improvement. 139 Ark. 153. Act 390 of 1920 did not reserve district from provisions of the Alexander law, but only recognized its organization thereunder, gave the commissioners some additional powers, and reserved the 30 per cent, limitation on cost. 146 Ark. 287; 145 Ark. 438; 134 Ark. 30; The Alexander law authorizes the extension of boundaries to include city. The boundaries of the district are as clearly shown on the plot as could reasonably be expected, considering its situation. The land not correctly shown on plot was a negligible quantity, and the cases cited by appellant, 147 Ark. 352; 113 Ark. 566; 104 Ark. 298, can have no application here. Act 290, approved March.26, 1920, confirms organization of district. 146 Ark. 287; 145 Ark. 438; 134 Ark. 30. Question of variance may not be raised in this special proceeding. Inquiry is confined to single question, whether the district boundaries should be extended. Counsel, in relying on 127 Ark. 165, and 127 Ark. 310’, overlook that the application of the rule announced therein and in similar prior cases was expressly overruled in 139 Ark. 424, and the new rule was expressly applied in 134 Ark. 292, 137 Ark. 587, and in 143 Ark. 341. No arbitrary and discriminatory action in not including the 12 acres on the north line of section 12 that -would invalidate proceedings, and cases cited by appellant are not applicable to facts of this case. Boundaries can yet be extended to include the twelve acres. 140 Ark. 474; 153 Ark. 5; 13 Law Reporter, 702. Ball was a de facto officer, and his action as assessor cannot be attacked in this proceeding. 117 Ark. 30, 52 Ark. 386; 129 Ark. 286. 126 Ark. 231; 65 Ark. 343; 133 Ark. 277; 138 Ark. 339; 147 Ark. 181; 142 Ark. 519; 55 Ark. 81. Evidence not sufficient to overturn the assessments, which were regularly made and are presumed to be fair and equitable. 113 Ark. 493; 143 Ark. 44; 143 Ark. 261. The proceedings for extending boundaries of the district were' regular and lawful, and the assessment of benefits should be sustained.

      Boyce & Mach, Jno. W. and Jos. M. Slayton, Tbos. B. Pryor, PL. L. Ponder, Tbos. S. Busbee, Geo. B. Pugb and H. T. Harrison, in reply.
    The law requires the boundary lines of the district to be accurately, plainly shown on the plot, and does not excuse the making of the plot on so small a scale as not to do it. 146 Ark. 288; 147 Ark. 349. Act 390 of 1920 does not cure irregularities in the organization of the district, does not even purport to be a curative act, as in 145 Ark. 438; 134 Ark. 30. Roads built outside of district. Rector v. Board of Imp., 50 Ark. 116; 103 Ark. 269; 131 Ark. 60, have no application here. Sixth ground of appeal to which demurrer sustained not a collateral attack upon judgment creating district. Cases cited in support of contrary contention reviewed and distinguished, supported by 142 Ark. 509, which is not overruled by 139 Ark. 424. Construction of § 15 contended for by appellants results in class legislation without any proper basis for the distinction or classification. 174 U. S. 96; 135 S. W. 773; 184 U. S. 540. The assessment is invalid. Rule as to officers de facto does not apply in this case, which is a direct attack. 71 Ark. 17.
   McCulloch, C. J.

Road Improvement District No. 2 of Jackson County was organized under the general statutes (Act No. 338 of the G-eneral Assembly of 1915, Crawford & Moses’ Digest, § 5399 et seq.) for the purpose of constructing a road in Jackson County beginning near the eastern ¡boundary of the city of Newport and running east and southeast, with branches to two different points. The district, as first organized, contained approximately 125,000 acres of land extending up to the city limits of Newport. Plans were formed for the construction of the improvement, bonds were issued, ’and the road was partially constructed, when the board of commissioners of the district determined that other adjoining lands, including the whole of the city of Newport, would be benefited by the improvement, and they caused the anticipated benefits to said lands to be assessed, and filed a special report with the county court asking that the lands thus assessed be added to the district for the purpose of taxing the benefits. The lands described in the special report, including the city of Newport,' constituted about 3,000 acres.

Appellants are the owners of lands embraced in the territory to be added, and they appeared in the county court, pursuant to the notice published by the commissioners, to resist the entry of an order of the court including these lands, and. also to challenge the fairness and correctness of the assessment of benefits.: The county court overruled the objections of appellants to the addition of the territory to the district, but sustained their objections to the assessment of benefits, and reduced the same fifty per centum of the amount as returned by the assessor. Appellants prosecuted an appeal to the circuit court of Jackson County, where the •cause was heard anew, and the circuit court sustained the order of the county court adding the new territory to the district, but found that the assessments were discriminatory and void, and entered a judgment striking out said assessments. There is an appeal on the part of both, sides to the controversy, and the original contestants will be referred to as tbe appellants and the commissioners of the district will be referred lo as the ap-pellees.

This district was formed by order of the court pursuant to the general statute, a section of which (Crawford & Moses’ Digest, §§ 5626-28) provides that, when it is found by the commissioners that other lands not embraced within the boundaries of the district as originally organized will be benefited by reason of the improvement “made or about to be made,” they shall cause to be made an assessment of the anticipated benefits to said lands, and file a special report to the county court; that the court shall set a date for hearing, and that notice shall be given of such hearing, at which time the court is authorized to make an order including said additional lands in the district, and confirming the assessment of benefits.

The General Assembly, at the extraordinary session in February, 1920, enacted a special statute with reference to the district, conferring additional powers in certain respects and removing certain restrictions. The effect of the statute was to remove from the operation as to this district the feature of the general statute limiting the cost of the improvement to thirty per centum of the assessed value, and the act also authorized the construction of two lateral roads connecting with the main road. The remainder of the act is substantially a reiteration of certain powers conferred in the general statute, such as borrowing money, making additional levies to complete the improvement when found necessary, and authority to the county court to contribute funds to assist in the construction of the improvement. The statute also contained provisions prohibiting damage to the improvement, and certain other particulars with regard to maintenance of the road and non-interference therewith.

It is the contention of counsel for appellants that the effect of the special statute was to convert the district into a separate and distinct entity from its original" status as a creation under the general statute, and that this took the district out of the operation of the general statute altogether, and particularly with reference to-the section of the original statute which authorized the taking in of additional territory. We cannot agree with counsel in this respect. The new statute recognizes the existence of the district as an entity already lawfully created, and the statute does not attempt to change the organization, -but treats it is an existing entity, and removes certain restrictions upon its operations, and enlarges its powers in other respects. The effect of this statute is not to repeal, either expressly or impliedly, any portion of the general statute in the operation of this district, except to the extent that it may he found in conflict with the provisions of the new statute. There is nothing in the new statute relating to the powers of the district to take in additional territory, and there is no provision in the statute which is in conflict with the section of the general statute which authorizes the incorporation of new territory into the district.

It is next contended that the section of the general statute authorizing the incorporation .of additional territory is void for the reason that the owners of property in the territory to be added have no opportunity to be heard on the question of the organization of the district. This contention is unsound for the reason that there is no constitutional requirement that the consent of the owners of property must be obtained to the formation of an improvement district outside of a municipality. The only provision in our Constitution in this respect relates to the formation of improvement districts wholly within cities and towns. This court has, at least inferentially, treated this particular section of the general statute as valid.

It is also contended by counsel for appellant that the organization of the district is absolutely void on account of a variance between the petition of property owners and the plats accompanying the same with reference to the designation of boundaries, and that for this reason there cannot he an annexation of additional territory. Counsel for appellees contended below that appellants, as owners of property in'the territory to he added, could not attack the validity of the original organization, and the trial court sustained the contention of appellees on this point. The solution of this question depends upon the character and subject-matter of the attack upon the organization of the district. In the proceedings adding additional territory found to be benefited by the improvement, the question of the validity of the original organization only arises collaterally, and the validity of the district cannot be challenged on account of mere errors and irregularities in the original organization. If, however, the organization is void on account of jurisdictional defects — in other words, if the lack of jurisdiction appears on the face of the proceedings — the question could be raised collaterally. Churchill v. Vaughan, 123 Ark. 298; Griffin v. Boswell, 124 Ark. 234; Pritchett v. Road Improvement District, 142 Ark. 509; Householder v. Harris, 147 Ark. 349.

We held in the cases cited, supra, that the provisions of the statute with respect to filing plats showing the boundaries were jurisdictional, and that failure to comply with those provisions rendered the order of the county court creating the district void. We proceed therefore to determine, from the 'face of the original proceedings as brought into this record, whether or not there is a substantial conflict between the petition and the plat as to the description of the lands originally included in the district when it was .created.

In the petitions circulated for the signatures of landowners and in the published notice the lands were described by terms having reference to government plats, except in a few instances where there-were subdivisions into lots and blocks, and in those petitions there was a description of the north half of section twelve (12), in township eleven (11) north, range three (3) west, except that part embraced in blocks 1, 2, 3, 4, 11, 12, 13, 14 and 18 of McLain-Holden Land & Lumber Company’s Addition, known as East Newport, of the city of Newport, Arkansas.” It is shown by the proof in the present case that the blocks in the McLain-Holden Addition, as referred to in the petition and notice, constitute approximately twelve acres in area, and lie full length along the northern boundary of said section 12. Lands lying on the north of section 12, described as section one (1), township twelve (12) north, range three (3) west, are not included in the boundaries of the district, and on the map which accompanied the petition the north boundary line of the district at that place was indicated by a broad line drawn parallel along the boundary line of section 12. The contention is therefore that, from the appearance of the map, all of the north half of section 12 is included in the district, whereas the petition distinctly recites that the lots in the McLain-Holden Addition which lie along the north side of section 12 are expressly excluded from the district. This is what is claimed to be the variation. It is seen, however, from the description of these lots and the area as described in the testimony, that they constitute a very narrow strip along the north boundary of section 12, and this strip is too narrow to be accurately shown on the map, * which is small and drawn to a scale of one-half inch to the mile. An area so narrow as this width would hardly be perceptible on a map drawn to a scale of one-half inch to the mile. Of course, the map and the petition and notice should correspond, and the map should be s-o drawn that the boundaries will be clearly indicated (Householder v. Harris, supra), but the statute was only intended to impose a reasonable requirement, and, unless it is affirmatively shown that there is a conflict between the map and the petition and the notice which designates with absolute accuracy the boundaries of the district, it should not be held that there is an avoidance by reason of this apparent defect. It became the duty of the county court, when, it passed upon the petition, to carefully examine and compare the petitions and maps to ascertain whether there was any conflict, and, unless the conflict affirmatively appears from an examination of the papers, the findings of the county court on that question are conclusive on collateral attach. Considering the narrowness of the area as compared with the remainder of the lands in section 12 which were included in the district, we think that it cannot be said that this plat affirmatively shows that the narrow strip of land was indicated on the plat as being included in the district so as to put it in conflict with the precise description in the petition-expressly excluding this area.

The ruling of the court in sustaining a demurrer to the paragraph of appellants’ remonstrance, charging that the notice described the lands not mentioned in the petition or in the order creating the district, was correct, for the reason that the allegation in that regard stated a mere conclusion.

It is also contended that the annexation of additional territory should be denied on the ground that the commissioners had, with funds of the district, constructed a part of the road not authorized in the organization of the district. This affords no ground for preventing the annexation of territory under the statute. If the commissioners have exceeded their authority, other remedies must be sought to hold them responsible or to obtain relief from the unauthorized acts.

Our conclusion is that, on collateral attack, the judgment of the county court is not void, and that the attack on its validity is unfounded.

There is a further contention in this connection that the addition of territory should not be made for the reason that the original district was made up almost exclusively of rural lands, and that the city of Newport, being a separate entity for road or street purposes, should not be included in a rural district. This point of attack is untenable, and has often been decided against the contention of appellants in cases where whole cities and towns were inclnded in road districts. It is abundantly shown by the testimony in the present case that the real property in the city of Newport will be substantially benefited by this improvement, and there is no reason why it should not be included for the purpose of having these lands contribute, from the benefits received, to the cost of the improvement.

The special report of the .commissioners describing the new territory to 'be annexed describes all of the rural lands north of section 12, and also the whole of the city of Newport except the aforementioned blocks in the Mc-Lain-Holden Addition. We have already seen that these blocks were expressly excluded from the boundaries of the district as originally created, and now since these lots are not included in the area to be added in the present proceedings, there is presented a case where lands are omitted which are contiguous to the roads to be improved, as much so as surrounding lands, and are completely surrounded by other lands which are included in the district. It is a case where these lands are necessarily benefited by the district if the other included lands are benefited, yet they are omitted from the district. We think this situation brings the case within the control of several decisions where we have held that the exclusion of lands which necessarily receive benefits from the improvement rendered the organization void. Heinemann v. Sweatt, 130 Ark. 70; Milwee v. Tribble, 139 Ark. 574; Johns v. Road Improvement Districts, 145 Ark. 49. Appellants had a right to raise that question in the proceedings to include their lands in the district.

Counsel for appellees rely upon our decision in Hill v. Echols, 140 Ark. 474, where we held that the exclusion of benefited lands, or the failure to include such lands within the prescribed boundaries of the district, will not operate as an unjust discrimination so as to invalidate the organization, where authority is conferred to subsequently add all benefited lands to the district. Where there is such a provision as is contained in the general statute, supra, to subsequently take into the district benefited lands which have ¡been excluded, the failure to include the lands in the original 'Organization does not invalidate the district on collateral attack. It is an error, however, of the court to fail to include all the benefited lands, when it is shown that they are lands which will be benefited. Such an error, however, must be corrected by direct attack on appeal. Therefore the failure to include the blocks in the McLain-Holden Addition did not invalidate the district, for the reason that the failure to include them was a mere error, which was not sought to be corrected on appeal, and cannot be corrected in the present appeal, but the failure to include them now, when it is obvious, from the proof in -the case, that they will be equally benefited with other lands surrounding them, is an error of the court to add the new territory without including these blocks, and it is an error which can be taken advantage of in the present proceedings, which is a direct attack upon the correctness of the order of the county court adding the new territory. The question of the right to raise that question does not come within the principles announced in Hill v. Echols, supra. The owners of the lands which are sought to be taken into the district have a right to insist that all other lands equally benefited should be taken into the district. At the same time it is an error for the court to fail to take in the added territory without including all such lands. It does not relieve the proceedings omitting the lands from the effects of the error merely because they can be subsequently added, for the property owners have a right to insist that those omitted lands be taken in at the same time that their lands are taken in.

Our conclusion is that the failure to include the blocks in the McLain-Holden Addition was an error, and calls for a reversal of the judgment adding the new territory. Of course, this reversal does not prejudice the right of the district to inaugurate new proceedings for the annexation of territory in accordance with, the terms of the statute. This view of the matter obviates the necessity of discussing the correctness of the assessment of benefits, for we cannot reach that question until there has been a valid proceeding to add the territory and a decision as to the correctness and uniformity of the assessments would be premature.

The judgment of the circuit court is accordingly reversed, and the cause is remanded for further proceedings in accordance with this opinion.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Sessoms v. Ballard.
    Opinion delivered July 9, 1923.
    1. Trial — transfer of cause — waiver.—The right of a party to have a suit in equity transferred to the law court .is waived by failure to ask that this be done in the lower court.
    2. Partnership — jurisdiction of suit to collect assets. — Where certain parties sold partnership property to one of the partners, and some of the partners subsequently died, suit by the other surviving partners against the purchasing partner to collect the purchase money was properly brought in equity,
    3. Partnership — suit on partnership contract — parties.—Neither the heirs nor the legal representatives of deceased partners were necessary parties to ah action by surviving partners to enforce a partnership contract, as, on dissolution by death, right of action to enforce such contracts survives to the surviving partners.
    4. Partnership — right of action on partnership note. — Where a note for property sold by a partnership was executed to the president of the partnership, he could maintain action thereon after dissolution by death of some of the partners.
    5. Partnership — action on partnership note — set-off.—In a suit . by surviving partners on a note given by one of the partners for purchase of partnership property, defendant could not set-off debts due to by him by individual partners.
    6. Fixtures — removable machinery. — A gin and grist-mill consist- • .ing of gin built on oak sills resting on posts, a boiler set in a brick wall, scales' set in an excavation, and á double revolving press set in an opening in the earth, when sold separate from the land and being removable therefrom, held not to constitute fixtures.

      Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      LeCroy & Betts, for appellant.
    1.. The chancery court was 'without jurisdiction. The relief sought was purely legal, and should have been decided on legal principles alone. Therefore, defendant was entitled to have the facts tried by a jury. 27 Ark. 158; Id* 164; 16 Cyc. 31 and cases, cited; 95 Ark. 618; 8 Ark. 63; 90 Ark. 195; 159 S, W. (Ark.) 208.
    2. The interests of the deceased partners should have been represented. They were not made parties, though necessary. 124 Ark. 344; 30 Cyc. 561; 67 Ark. 27; 66 Ark. 550; 47 Ark. 54; 93 Ark. 447.

      S. E. Gilliam, for appellees.
    1. The chancery court, under the circumstances of this case, was the only proper forum.' It does not fall within the exception stated in Phillips v. Mantle, 136 Ark. 338. Even if appellant had had the right to a trial at law, he waived that by failing to ask for a transfer. C. & M. Digest, § 1041-1044; 31 Ark. 411; 46 Ark. 524.
    2. The legal representatives of the deceased partners were not necessary parties to this unit. 17 Ark. 473; 54 Ark. 395; 69 Ark. 237; 47 Ark. 54.
   Wood, J.

On the 22nd day of February, 1919, the appellant executed his promissory note to J. P. Ballard, president of the Midway Grin Company, a partnership (hereafter called partnership) for the sum of $1,022.59. The note recites that it was given for the purchase price of a steam gin and grist mill, and bears interest at the rate of eight per cent, per annum from September 15, 1918, until paid. Title was reserved in the partnership until the purchase price was paid in full. On July 26, 1921, the appellees, as sxirviving partners of the partnership, instituted this action against the appellant on the note. The appellant, in his answer, admitted the execution of the note and that it was for the purchase price of the machinery recited therein, which machinery was the property of the partnership. He admitted that the appellees were members of the partnership, but denied that they-composed the whole partnership, and alleged that the estates and heirs of certain deceased members of the partnership, naming them, were interested therein, as well as the creditors of such deceased members. He alleged that no administrator or other person authorized •to represent their interests had been joined with the ap-pellees as plaintiffs in the suit. He -alleged that, for that reason, the action should abate. He further alleged that the sale of the property to the -appellant was unauthorized and void, on ¡account of the death of certain members of the partnership, and because their interests were wholly unrepresented. He further alleged that the appellees had not executed to the appellant any deed, bill of -sale, or other instrument conveying the property for which the note was executed, and that -same was, for that reason, without consideration and void.

Appellee Ballard testified that the Midway -Grin Company was a partnership, -and he was president thereof. He named the members of the partnership, and stated that the purpose of the partnership was to run a gin ¡and grist mill. Witness thought there were twenty partners. They sold the property described in the- note to the appellant, who paid $178 cash, and executed the note which is the foundation of this action, for the balance of the purchase money. The sale covered only the gin and mill, and not the land on which they are situated. Witness knew of no members of the partnership who were objecting to the action except appellant’s father. There were -a dozen or more of the partners present when -the -agreement was made to -sell the property. No bill of sale was executed-to the -appellant. The property was turned • over to him. Appellant had done witness’ ginning ever since the property was -sold to him, and witness owed appellant for the ginning of fifteen bales of cotton. • The property was sold as personal property. Witness had talked to a majority of the stockholders about the deal. The various partners had different amounts invested in the partnership.. The gin. had been 'built since 1908. Posts were set np and the house built upon them — oak sills. The boiler was set in a brick wall, and the scales were set in an excavation. The press was double revolving, and set in an opening in the earth some eight or ten feet. Witness supposed that the gin was built with the idea' of becoming permanent and substantial. It was all substantially constructed and was a permanent improvement on the two acres of land.

The gin and mill could have been moved to another location and set up without injury to the machinery. The appellant stated when the sale was made to him that he was going to run it for a season or two and then move it to his home. It was shown that the owner of the freehold did not object to the removal of the machinery by appellant. It was shown also that part of the property had been moved to the home of the appellant before and after the institution of this action. There was testimony for the appellees substantially to the same effect as the testimony of Ballard. The testimony showed that there had been no dissolution of the partnership by action of its members; that demand was made for the payment of the note, which was refused. The business was conducted by the president and secretary and directors. The sale was authorized by a resolution to that effect.

It was shown that several members of the partnership owed the appellant for ginning since the sale of the property to him. One of the witnesses testified that appellant authorized the bringing of the .suit. It was shown that several members of the original partnership had died, and some of them left families surviving them.

The court found that the Midway Gin Company was a partnership, composed of the appellees and certain other members, who had died before the institution of the action ; that the note was executed for the purchase money of the property, the sale of which was duly authorized, and that-the appellant was indebted to the partnership in the amount of the note; that the sale did not cover the land upon which the machinery stood. Thereupon the court entered a decree in favor of the appellees as surviving members of the Midway Gin Company “for the use of said partnership and for the amount of the note, with interest.” From that decree is this appeal.

The appellant urges a reversal of the judgment upon four grounds, namely: (a) that the chancery court had no jurisdiction; (b) that all the living members of the partnership were not made parties, and that none of the heirs or legal representatives of the deceased partners were parties; (c) that the action and the decree was for the full amount of the note, without any deduction in favor of appellant of the sums due him by various members of the partnership for ginning done for them since his purchase of the property; and (d), that there was a failure of consideration.

1. The appellant is not in an attitude to raise here the issue that the court was without jurisdiction, for, if he had the right, under the allegations of the complaint, to move to transfer the cause to the circuit court, he did not ask that this be done by the lower court, and hence he has waived such right. See §§ 1041-1044, Crawford & Moses’ Digest, inclusive; Talbot v. Wilkins, 31 Ark. 411. See also Cogswell v. McKeough, 46 Ark. 524.

Moreover, the allegations of the complaint, supported by the facts developed at the hearing, without objection, proved that the chancery court only had jurisdiction of this action. For it is in the nature of an action by surviving partners, after dissolution of the partnership by the death of some of its members, to collect tfie assets of the partnership, of which appellant himself was a ¡member. The facts showed that there were many partners, some living, and others who had died leaving representatives. The members of the partnership had varying interests, and each partner or his representative was entitled to a pro tanto distribution of tbe assets of the partnership according to the amount he had invested. in the capital of the partnership. Equity was the proper and only forum for an action of this kind.

The case is clearly differentiated by the facts from the case of Phillips v. Mantle, 136 Ark. 338. There the partnership had ended, and all the debts had been paid and ■all the partnership affairs otherwise adjusted, and nothing remained to be done but to pay over the amount due from one living partner to the other by reckoning, without any complications. Here the facts prove that the appellant himself was a member of the partnership and was interested in the distribution of its assets. While the suit was brought against him 'by other partners to recover the amount due by him to the partnership, yet it was for his benefit to the extent of the interest that he had, as a member of the partnership, measured pro rata by the amount he had contributed to the capital of the partnership. The case is analogous, in effect, to a suit between partnerships with a common member, which can only be determined by a court of equity. See §§ 922, 923, 924 of 2 Story’s Equity Jurisprudence.

As is said by Mr. Story: “The relation of partners having been established between contending parties, their rights and duties as between themselves are to be governed by the rules applicable to trustees and agents, and the trust relation which exists between them is not terminated with the dissolution, but continues until a final adjustment and settlement of the partnership affairs is had.” Sec. 911, 2 Story’s Eq. Jur.

2. Neither the heirs nor the legal representatives of the deceased partners were necessary parties to this action, bcause “on dissolution of a partnership by death the right of action to enforce -partnership contracts survives to the survivor, and does not go to or vest in the legal representatives of the deceased partner.” Stillwell v. Graves, 17 Ark. 473. See Hill v. Draper, 54 Ark. 395; Coolidge v. Burks, 69 Ark. 237.

Appellant relies upon the ease of Cannon v. Harmon, 124 Ark. 344, and cases there cited, where we held, quoting syllabus: “All the partners are proper and necessary parties plaintiff in an action to enforce a partnership claim.” But the doctrine of those cases is not applicable here, because in none of them was there a dissolution of the partnership by the death of partners, and the actions were not by surviving partners to gather in the assets of the partnership for adjustment, 'séttlement and distribution among those interested in the partnership. The note was executed to appellee, president of the partnership, and he could maintain the action.

3. The appellant contends that, inasmuch as several members of the partnership were indebted to him for ginning since he purchased the property, he was entitled to have these several amounts offset against any judgment rendered against him on the note. But this being an action by the surviving partners to gather in the assets of the partnership, the appellant had no right in such an action to offset his debt to the partnership by debts due him by individual members of the partnership. “The general rule is that, in an application by a partnership to recover a debt, the defendant cannot set-off an individual debt due to him by a member of the firm. The effect of allowing a set-off in such a case would be to permit an indirect application of partnership assets to pay the private debt of one -member of the firm.” 20 R. C. L. p. 942, % 162, and authorities cited in note. See also Houston v. Brown, 23 Ark. 333.

4. The appellant pleads a failure of consideration because he did not get a deed to the land upon which the gin and mill are situated. But this plea cannot avail -appellant, for the reason that the testimony (undisputed) proves that the appellant did not purchase the land. He got what -he purchased. Appellant took possession of the mill and gin. The owner of the land did hot object to his using the same where they were situated and did not object to his moving them away. The court found the facts to be that the sale did not include the land and that appellant, before and since the sale, had moved part of the property purchased by him to his own home. These findings are sustained by the undisputed testimony. The proof showed that the property purchased by the appellant did not 'constitute fixtures.

The decree is in all things correct, and it is therefore affirmed.


author: Hart, J.

text:
    Missouri Pacific Railroad Company v. Cathey.
    Opinion delivered July 9, 1923.
    1. Carriers — negligence in operating mixed train — evidence.— Evidence that a carrier operating a mixed passenger and freight train coupled some cars onto the train with such impact as to cause an unusual jerk to the car in which passengers were riding is sufficient to show negligence.
    2. Appeal and error — conclusiveness of approved verdict. — The Supreme Court is slow to set aside a verdict as excessive where it has been approved by the trial judge.
    3. Damages — personal injuries. — Testimony that plaintiff, previously being in good health and having an expectancy of 20 years, and with an earning capacity of $7.50 a day, by defendant’s negligence suffered a sprain of her sacro-iliac joint which rendered her unable to walk or to use her left arm or to conduct her sawmill business, and that she suffered constant pain, requiring the use of morphine, held to justify a verdict for $15,000.
    Appealed from Chicot Circuit Court; Turner Butler, Judge;
    affirmed.

      E. B. Kinsworthy aud B. 8. Kinsworthy, for au-pellant.
    1. Speculative evidence is not a basis for a jury’s verdict, and, when based on such evidence, the verdict ought not to stand. 105 Ark. 161; 116 Ark. 82. In this case, in order to reach their verdict, the jury had to find on the merest scintilla of evidence, on speculative evidence of the highest degree, that there was an injury to the arm and back, and that the rheumatism, or her present condition, might be the result of such an injury. Not only so, but they had to ignore positive and un-contradicted evidence that there was no such injury, and that her present condition was due to natural causes, and not the result of an accident. 113 Ark. 353; 147 Ark. 481; 116 Ark. 82; 105 Ark. 698, 151 S. W. 288; 118 Ark. 349; 70 Ark. 385.
    2. The verdict and judgment are excessive — not based on the evidence or any proved injury. 182 N. W. 901; 208 Pae. 1059; 230 S. W. 1070; 82 Ark. 61; 87 Ark. 109; 89 Ark. 9; 106 Ark. 177.

      N. B. Scott, for appellee.
    1. There is substantial evidence of the accident, the injuries received, the" permanency of such injuries, and of negligence on the part of the appellant. The verdict therefore should not be disturbed. 107 Ark. 158.
    2. The damages awarded are not excessive. 113 Ark. 265; 107 Ark. 158.
   Hart, J.

This is an appeal by the Missouri Pacific Railroad Company from a judgment against it in favor of Mrs. Addie L. Cathey for injuries alleged to have been received by her from a sudden jolt caused ¡by the coupling of a mixed freight and passenger train in which she had taken her seat as a passenger.

Mrs. Addie L. 'Cathey was a witness for herself. According to her testimony, ion the 25th day of April, 1921, she was at the station of the defendant, Missouri Pacific Railroad Company, at Eudora, Ark., and took passage on a mixed freight and passenger train of the defendant to Kilbourne, La. She paid her fare to the conductor, and took her seat in a passenger coach facing Mrs. Wood Allen, with whom she had become acquainted at the station. While they were sitting there, there was a terrific jerk of the train backward and forward. The jerk of the train was so violent that it threw Mrs. Cathey out of her seat 'and over against Mrs. Allen. She was then thrown violently backward, and fell against the side of the coach by the -window. She was soon in great pain, and vomited in the oar. The character and extent of her injuries, as detailed by her, will be set forth under an appropriate heading in the opinion.

Mrs. Wood Allen was also a witness for the plaintiff. According to her testimony, there was a sudden and violent jerk of the car in which they were isitting. Mrs. Cathey fell forward on Mrs. Allen, and then fell backward in her seat. Mrs. Allen was not injured. Mrs. Oathey soon became sick at her stomach and began to vomit. She continued to be sick until the train arrived at Edlboume.

The conductor of the local freight train was a witness for the defendant. According to his testimony, there was no unusual jolt or jerk to the train. The jerk in question was caused by coupling some cars in the train, and was merely the jolt or jar usually incident to the operation of freight trains. According to his testimony, the accident was caused by a flying switch. The engine was coupled to seven freight cars, and four of them were uncoupled and let run back against the train. The striking of these cars against the train caused the jolt or jar which hurt the plaintiff. *

Prom the evidence adduced in favor of the plaintiff the jury might have found that an unusual jerk caused by letting the four freight cars strike with too much violence ¡against the remainder of the train caused the injury. This would constitute negligence on the part of the defendant, and would entitle the plaintiff to recover damages for whatever injuries she suffered. St. L. I. M. & R. Co. v. Brabbzson, 87 Ark. 109; Ark. S. W. Rd. Co. v. Wingfield, 94 Ark. 75; St. L. I. M.& S. R. Co. v. Hartung, 95 Ark. 220, and St. L. S. W. Ry. Co. v. Overton, 114 Ark. 98.

The question of the negligence or not of the railroad company, under the principles of law testified in the cases just cited, was submitted to the jury under instructions which fully and fairly submitted the duty of a carrier operating a mixed freight and passenger train, to its passenger, and the verdict of the jury, being supported by the evidence for the plaintiff, is conclusive on that point upon appeal.

The main reliance of counsel for the defendant for a reversal of the ease is that the verdict is excessive. Upon this branch of the case the plaintiff was also a witness for herself. According to her testimony, she . was fifty years of age 'at the time she received her injuries on the 25th day of April, 1921. According to mortality tables, she had a life expectancy of 20.9 years. According to the testimony of the plaintiff, the jerk of the train threw her violently forward and then backward against the side of the coach by the window. She soon became sick at her stomach, and vomited over the car. The jolt caused her to suffer great pain, and she has suffered great pain ever since, that time. The trial was had at the October term, 1922, after the injury in April, 1921. One of .the physicians of the plaintiff advised her to .use morphine, oodine, and bromides, to alleviate her pain. Mrs. Cathey had formerly owned a drugstore, and had kept the morphine when she sold her drugstore. She began the use of morphine to allay her pain, and by the time of the trial she had become so addicted to the use of it that she took an injection of a quarter of a grain in her arm almost daily. As she expressed it, she had become a perfect fiend for the drug. Mrs. Cathey was confined, to her bed for five weeks after she received her injuries, and during all of that time suffered great pain. As a result of her injuries her left arm has become smaller than her right one, and she can hardly use it at all. She can move her left arm a little, but her hand is drawn up, and she has lost the use practically of her left arm and hand. Her right leg is very weak and hurts her more or less all of the time. Her back is in a strain all of the time. If she uses her right leg it 'causes a strain in her back and hip which brings on great weakness and gets her all in a jerk. She has not been able to work since she received her injuries, and 'has had to give np the management of her sawmill, which she had begun to operate for the purpose of clearing some land that she owned at the time she received her injuries. Her services were worth as much in operating the sawmill as the services of any employee she paid the most, and this amounted to $7.50 per day. She never used morphine prior to the accident, but had used it ever since that time, which is eighteen months. She has become addicted to the use of it to allay her pain, and, on account of her suffering, her body has become too- disabled to work at all.

A physician -examined her soon -after her injuries and -also at a later time. According to the symptoms described by her and the examination made by the physician himself, he thought that she was suffering from a sacro-iliac sprain. The plaintiff is a large fleshy woman, weighing 190 pounds. Partly -on this account there were no bruises discoverable upon her body after the injury. Her blood pressure was 190. This high blood pressure might -or might not have been caused by the injuries received. She -might have had a high blood pressure from other causes before she received her injuries.

The son of the plaintiff, thirty-three years old, was also a witness for her. According to- his testimony, he operated a hospital for seven months in Prance during the World War, and when he -came home from the war he took the blood pressure of his mother -and sister. He just happened to have the instrument with him -and took their blood pressure at their request. The blood pressure of his mother at that time was about 140. This was prior to the time she received her injuries. Dr. Cathey examined his mother -again after ishe had received her injuries. Her blood pressure was then 190. He diagnosed the injury to her back as -a -sacro-iliac sprain, -and described this as a -sprain of the ligaments holding the sacrodliae joint in a fixed and stable position. As the result of the injuries, the joint was not as strong as it should be, and this caused his ¡mother pain. He described his mother’s injury in detail, and testified that, from his experience in matters of this Mnd, 'he considered that his mother’s injuries were permanent. He said that her left forearm was three quarters of an inch smaller than the .right one; that the measurement of the largest part of her right thigh was one and a half inches smaller than the size of her left thigh. The plaintiff and her son also testified that her health had always been good prior to the time of her injury.

According to the evidence adduced for the defendant, the plaintiff’s injuries were to a great extent simulated, and she had entirely recovered from the slight injuries received by her at the time of the accident. The plaintiff testified that she was unable to walk without a crutch or without holding to a wall or door. The defendant introduced witnesses who had seen her walk without the aid of a crutch or holding to any object for support. The plaintiff also testified that she had almost entirely lost the use of her left arm as the result of her injuries. The defendant introduced witnesses who testified that they had seen her use her left arm freely since- -she received her injuries. Physicians Who had examined her testified that she had wholly recovered from any injuries received by her at the time -of the accident, 'and that -she was not permanently injured. We do not 'deem it necessary, however, to .set out this testimony in -detail. The jury returned a verdict in favor of the plaintiff in the sum of $15,000. As to the verdict being excessive in amount, we find nothing to warrant our -interference with the 'conclusion of the jury on the -subject. It is the primary duty of the trial court to control the 'amount of the verdict, 'and to set it aside if it is against the weight of the evidence. If hears -the evidence, sees the witnesses, and -is in possession of 'all the facts which are testified to before the jury. In our judicial -system therefore the primary duty of correcting an excessive verdict rests on the trial court.

As we Suave just seen, it lias the authority 'and is in possession of the facts which will warrant it in correcting- an error of this kind. The case is 'different with us-The witnesses are not in our presence, as they were in the presence of the court and the jury trying the case. Both of them heard them testify and had a better opportunity of judging their credibility than this court could possibly have. Hence this court has been very slow to set aside the verdict of a jury, where, as in this case, a motion for a new trial on account of the verdict being excessive has been overruled (by the judge who presided 'at the trial.

According to the testimony of the plaintiff and of her son, she was a large healthy woman, fifty years of age at the time she sustained her injuries. She was a business woman, and was accustomed to acting in that capacity. Her life expectancy was twenty years. She had. been injured eighteen months at the time of the trial. During all of this time she had ©uffered constant pain. She says that she has not been able to do any work since she has received her injuries. Her son, who operated a hospital in France, during the World War, says that her injuries are permanent, ¡and gave his reasons therefor. The plaintiff has become addicted to the use of morphine. She says that she never had used it prior to the time of her injuries, and has become addicted to its use because one of her physicians had told her to take it to alleviate her pain. This evidence for the plaintiff was weakened by cross-examination and by the affirmative evidence of witnesses for the defendant, but it was not overcome.

The amount of the verdict is not so great as to indicate that the jury might have found it while under the influence of passion or prejudice. The jury might believe the testimony of the plaintiff and of her son, and, if it did so, their testimony was sufficient to warrant the finding. Upon the whole case, as it appears to us, we cannot say that the verdict is excessive, 'and there is nothing in the record calling for a review of the ruling of the trial court on this point. The instructions fully and fairly submitted to the jury the respective theories of the parties to this lawsuit, and the judgment will therefore be affirmed.


author: Hart, J.,

text:
    Stripling v. Rudy.
    Opinion delivered July 9, 1923.
    Factors — burden of showing factor’s dishonesty. — Where factors handling: the sale of cantaloupes were by contract required to 'furnish statements of sales and to render account for net proceeds thereof, and did so, the burden was on the principals to show that the factors acted dishonestly or did not render a proper accounting.
    Appeal from Nevada Chancery Court; James D. Shaver, Chancellor;
    affirmed.
    STATEMENT OE PACTS.
    Dan Pittman and J. M. Stripling, as agents and trustees for certain cantaloupe growers, brought this suit in the chancery court against L. H. Thomas and E. E. Rudy to recover the sum of. $4,020.88, the balance due them from the proceeds of the sale of twenty-three cars of cantaloupes.
    ft appears from the record that L. H. Thomas made arrangements to handle the cantaloupes grown by the farmers of Nevada County, and was to receive a 5 per cent, commission for shipping and selling them. L. H. Thomas in turn made a contract with E. E. Rudy to sell the cantaloupes, and he was to receive a commission of 10 per cent, therefor, which was to be- divided between them. Prior to this time Rudy had been handling cars of tomatoes and other produce for Thomas, and advancing him money with which to purchase the same.
    During the shipping season the growers became dissatisfied with the way Thomas and Rudy were handling the cantaloupes, and Dan Pittman and J. M. Stripling were appointed by them as trustees to adjust the differences between them and Thomas and Rudy. The cantaloupe growers were afraid that Rudy would not give them proper settlements on the shipments of cantaloupes. The shipments were handled in this way: Thomas bought the cantaloupes from the farmers, and they were delivered to him in sheds. Thomas would then bill out the cantaloupes to Rudy, and he would divert the shipments to the firms to which he had sold the cantaloupes. Rudy had been advancing money from time to time for picking, packing, and shed expenses generally. On August 3, 1921, Dan Pittman and J. M. Stripling, as trustees for the cantaloupe growers, and L. H. Thomas and E. E. Rudy entered into a written contract which is as follows:
    “It is understood that funds deposited in the name of Pittman and Stripling, trustees, are to be held in escrow until final settlement is made for produce shipped by L. H. Thomas for account of various growers, handled by E. E. Rudy. At the time of final settlement, trustees will check said funds to parties to whom it belongs. It is also understood that shed expenses are included in said funds, said Thomas and Rudy to get up satisfactory statements of amount of same, which is to be submitted to trustees for approval, and paid out of said funds, and settlement made with growers for net proceeds. It is further agreed and understood that E. E. Rudy is to forward to First State Bank, Prescott, Arkansas, proceeds of all cars which he has handled for L. H. Thomas, and which have not been accounted for up to present. These to be handled in manner above set out for cars already handled.”
    Rudy deposited $1,220.31, the proceeds of five cars of cantaloupes, in the First State Bank, Prescott, Ark., under the contract. After hearing the testimony in the case, including the statement of Rfudy as to the sale of ■the cantaloupes and the expenses incident thereto, the chancellor entered a decree in favor of the defendants.

      The chancellor found that Thomas was agent of the growers, and, as such agent, employed Rudy to handle and sell cantaloupes on a 'commission of 10 per cent, of the net proceeds; that twenty-three cars were .handled in this way, and, after deducting freight charges' and commissions, they brought net to the growers $4,352.26. The court also found that during the shipping season Rudy had advanced to Thomas, as ag*ent of the growers, the sum of $4,300; that it was agreed between Thomas and Rudy that the latter was to retain an amount equal to the money so advanced by him out of the proceeds of the sale of the cantaloupes, and that no part of said money so advanced by said Rudy to Thomas has ever been repaid him.
    The chancery court further found that Dan Pittman and J. M. Stripling, acting as trustees for the cantaloupe growers, entered into the written agreement copied in our statement of facts; that, under the agreement, the money received from the sale of the cantaloupes by Rudy was to he deposited in the First State Bank, Prescott, Ark., and held in escrow until the retdrn from all the cars of cantaloupes were received; that Rudy, on August 3, 1921, deposited in the bank the sum of $1,230.31; that he afterwards furnished to the trustees an account of sales and an itemized statement of the net proceeds of each car sold by Rudy, showing in detail all advances made by him, all credits to which he was entitled, and the balance due him.
    The court further found that the net proceeds of all the cantaloupes shipped and handled amounted to less than the amount of money advanced by Rudy to Thomas, and that Rudy should be allowed to retain the net proceeds derived from the sale of the cantaloupes, including the sum of $1,230.31 deposited under the agreement in the First State Bank, Prescott, Ark.
    A decree was entered in accordance with the .finding of the court, and the court dismissed, for want of equity, the complaint of the plaintiffs and cross-corn-plaint of Rudy against Tiliomas, and the cross-complaint of Thomas against Rudy.
    It was further decreed that Rudy he allowed to retain the net proceeds for the cantaloupes in Ms hands, including the $1,230.31 deposited in the First State Bank.
    To reverse that decree the plaintiffs have duly prosecuted an appeal to this court.

      H. E. Rouse and A. 1. Roland, for appellants.
    As to the advances made to Thomas by Rudy, the latter had the burden of proving that Thomas was the agent of the growers. He could not rely on his statement alone. He was put on notice of -the limitations of Thomas’ authority, and should have ascertained what that authority was. 105 Ark. Ill; 94 Ark. 301; 92 Ark. 315; 81 Ark. 202; 101 Ark. 68; 85 Ark. 252. A person dealing with an agent is charged with notice that such agent would have no implied authority to borrow money for himself on the credit of his principal. 2 Corpus Juris, 657, and note 56.

      Steve Carrigan and Wofford <& Arbwkle, for ap-pellee.
    Where an agént is acting for his principal, he will, in the absence of notice to the contrary, he presumed to he a general agent, and the burden is on the principal' to show the limitations on his authority. 112 Ark. 63. The fact of ágency may be proved by circumstantial evidence. 93 Ark. 600. Acts of an agent within the scope of his apparent authority bind the principal. 49 Ark.' 320; 87 Ark.' 374. See also 93 Ark. 521; 96 Ark. 456; Id. 558; 21 R. C. L. 853; 78 Ark. 209. '
   Hart, J.,

(after stating the facts). It is insisted by counsel for the plaintiffs that Thomas and Rudy were partners, and should he 'held accountable to the trustees of the cantaloupe growers in that capacity. Without deciding that question, we shall assume that they were partners for the purposes of this decision.

The real question is whether or not Thomas and Rudy accounted to the cantaloupe growers for the pro- ■ ceecLs oí the 'sale of the cantaloupes, 'after deducting all proper charges and commissions.

It will be noted that the cantaloupe growers became dissatisfied with the way Thomas and Rudy were handling the shipments .of cantaloupes. This caused the growers to select Pittman and Stripling to represent them and to adjust the differences between them and Thomas and Rudy. The parties entered into the agreement, dated August 3, 1921, which is copied in our statement of facts. Under that agreement Thomas and Rudy were to1 furnish to the trustees statements showing the sales of the cars of cantaloupes, and render an account to them for the net proceeds. This was done by Rudy. He made a statement showing the proceeds of the sale of each car of cantaloupes. This statement includes the name of the person to whom the cantaloupes were shipped 'and the amount derived from the sale thereof.

The statement also includes freight charges, cartage charges, and the cost of crating the cantaloupes. No useful purpose could be served by setting out each itemized statement in detail. Some of them show that the cantaloupes were .sold at a profit, and some of them show that they were sold at a loss. Rudy rendered an itemized account of all the shipments, as he was required to do under the contract of Aug. 3, 1921. The net result of his whole statement is that the cantaloupes sold for less than the freight charges, expenses of cratins: them, and commissions. The evidence for the plaintiffs does not show that Rudy acted dishonestly in handling and selling the Cantaloupes. The burden of proof in this respect was upon the plaintiffs. Carter v. Franklin County Rd. Imp. Dist., 152 Ark. 302.

The contract between the parties required Rudy and Thomas to make a detailed statement showing the proceeds of the sale of each car of cantaloupes and the expenses of sale. As we have already seen, Rudy made an itemized statement of the amount received from the sale of each, oar of cantaloupes, the name and place of business of the person to whom they were sold, and the freight charges and the oo-st of crating them. If' Rudy did not honestly or in good faith render a proper accounting, the' plaintiffs should have shown that fact by legal evidence. This they could have done by requiring Rudy and Thomas to exhibit to them the bills of lading, which would have shown the freight charges. They could have shown whether or not Rudy and Thomas received the market price for the ¡cantaloupes at the places where they were sold. Of course, this would have required some trouble .and expense on the part of the growers, but this is the fault ¡of the system adopted by them and is not a defect in the law. They had a right to adopt whatever agencies they ¡chose to dispose of their cantaloupes, and, having made a contract with Rudy and Thomas for them to account for the net proceeds derived from the sale of the ¡cantaloupes, they must abide the result of their own agreement, or show that their agents did not faithfully account to them. The law cannot protect the growers from the alleged dishonesty of their selling agents, unless they establish such dishonesty by evidence. There is no proof in the record that Rudy and Thomas have falsified the ¡statement rendered by them of the net proceeds derived from the sale of the cantaloupes.

The plaintiffs, having failed to establish by evidence that the defendants did not properly account to them for the net proceeds derived from the sale of the cantaloupes, are not entitled to recover in this case, and the ¡court properly dismissed their complaint for want of equity.

It follows that the decree must be affirmed.


author: McCulloch, C. J.

text:
    Griffin v. State.
    Opinion delivered September 24, 1923.
    1. 'Master and servant — enticing away laborer — evidence.— On trial for enticing away a share-cropper, evidence held sufficient to warrant finding that there was a contract of employment between the share-cropper and his alleged employer, and that defendant, with knowledge thereof, employed the sharecropper to go to another State in violation of his contract.
    2. Master and servant — employment op contract laborer — consent op master. — The fact that a landowner accepted payment of his share-cropper’s past-due account from defendant did not of itself constitute consent to defendant employing such sharecropper in violation of his contract with a landowner-
    3. Master and servant — enticement op laborer — instruction. —An instruction that if the jury believed that a laborer had contracted as share-cropper with landowners and that defendant enticed away, knowingly employed or induced such laborer to leave before expiration of the contract and without the landowners’ consent, they should convict, necessarily implied that knowledge by accused of the existence of the contract w;as essential.
    4. Criminal law — instructions already given. — Where a requested instruction as to the burden of proof was fully covered by other instructions given by the court, its refusal was not error.
    Appeal from Jefferson Circnit Court; T. G. Par-ham, Judge;
    affirmed.

      Harry T. Wooldridge, for appellant.

      J. 8. Utley, Attorney G-eneral; John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   McCulloch, C. J.

Appellant was convicted upon information filed against him, charging violation of the statute which, makes it a misdemeanor for any person to “interfere with, entice, away, knowingly. employ or induce a laborer or renter who has contracted with another person for a specified time to leave his employer or the leased premises before the expiration of his contract, without the consent of the employer or landlord * * Crawford & Moses’ Digst, § 6570.

It appears from the testimony that one Hutson was employed as a share-cropper by Cox & Alexander, a co-partnership, and worked on their plantation in Jefferson County for the year 1922, and there is evidence that during the latter part of that year a new contract was entered into between Hutson and Cox & Alexander ■for similar employment at that place during the year 1923. The charge against appellant is that, on or about January 3,1923, he induced Hutson to break his contract with Cox & Alexander, and employed Hutson to leave that plantation and go to Mississippi to work for appellant’s employers in that State.

According to the undisputed evidence, appellant was in the employment of the Delta & Pine Land Plantation Company, a corporation operating a large plantation in the State of Mississippi, and that he came to Arkansas in search of tenants or laborers to go to Mississippi to work the land of his employers. According to the testimony adduced, on his first trip to Arkansas he employed a kinsman of Hutson’s, and, after returning to Missis-' sippi, he received a letter from Hutson making inquiry whether appellant desired to employ any more labor, and proposing to hire to appellant to work on the Mississippi plantation. Appellant came back to Arkansas, and, while here, went to the plantation of Cox & Alexander, and, according to his own admission, employed Hutson, while he was still living on that place, to move to Mississippi. Cox, one of the members of the firm, testified that he had a conversation with appellant and informed the latter of the existence of his contract with Hutson. He also testified that he had made a new contract with Hut-son for the year 1923. Hutson denied that he had made a new contract, and appellant also denied that Cox told him about a new contract. Appellant and the other witnesses just mentioned testified that there was a conversation between appellant and Hutson on the one side and Cox on the other with regard to Hutson’s past-due account with Cox & Alexander, and that appellant paid an account for Hutson, to Cox & Alexander in the sum of about forty dollars. This ivas a current account, and there was also a discussion of an old account, amounting to $197, which Cox wanted appellant to pay for Hutson.

It is insisted, in the first place, that the evidence is not sufficient to sustain the verdict, but our conclusion is to the contrary. There was a conflict, but the testimony was sufficient to warrant the jury in finding that there was a contract between Hutson and Cox & Alexander for the year 1923; that appellant, with .knowledge of the existence of that contract, and before Hutson had severed his relations with Cox & Alexander, carried on negotiations with Hutson which constituted an unlawful inducement to Hutson to break his contract with Cox & Alexander without their consent, and -that, with such knowledge, he employed Hutson to go to Mississippi, in violation of his contract with Cox & Alexander. The existence of these facts brought the. case within the operation of the statute, and the verdict of the jury was warranted, both as to the law and the evidence. The fact that Cox accepted payment from appellant of the past-due account of Hutson did not necessarily constitute consent to the employment of Hutson by appellant. Cox. & Alexander had the right to accept such payment without waiving the breach of Hutson’s contract with them and without consenting to appellant’s unlawful interference.

The court gave the following instruction at the instance of the prosecuting attorney:

“1. If you believe from the evidence in this case, beyond a reasonable doubt, that Dan Hutson had entered into a contract as a share-cropper with Cox & Alexander, a partnership composed of Jeff Cox and -S. C. Alexander, for the year 1923, and that the defendant, in Jefferson ■County, Arkansas, and within twelve months next before the filing of the information in the municipal court of the city of Pine Bluff by the prosecuting attorney, interfered with, enticed away, knowingly employed or induced the said Hutson to leave his said employers before the expiration of said contract and without the consent of the said Cox & Alexander, you will convict the defendant.”

The court also gave the following instruction at the request of appellant:

“3. Even though you may believe from the evidence, . beyond a reasonable doubt, that the defendant, P. B. Griffin, 'interfered with, enticed away, knowingly employed or induced Dan Hutson to leave the employment of Cox & Alexander at the time alleged, and at that time the said Dan Hutson had entered into a contract of employment with Cox & Alexander for the year 1923, you cannot convict the defendant unless you further find that, at the time of the alleged enticement, defendant knew of the existence of the contract of employment between Dan Hutson and Cox & Alexander, and the burden of proof is upon the State to prove beyond a reasonable doubt that the defendant knew of the existence of such contract at the time of the alleged enticement.”

The instruction given at the instance of the State was objected to by appellant, and it is argued now that the instruction is erroneous- for the reason that it ignored the essential element of knowledge on the part of appellant that there was a contract between Hutson and Cox & Alexander. We do not think that the instruction is open -to that objection, for the jury were told in the instruction that, in order to convict, it must be found that appellant “interfered with, enticed away, knowingly employed or induced the said Hutson to leave his said employers.” The language used necessarily implied that knowledge of the existence of the contract was essential to violation of the statute.

Error is also assigned in the refusal, of the court to give the following instruction requested 'by appellant :

“2. You are instructed that the burden of proof is upon the State to prove 'beyond a reasonable doubt’ that the defendant, P. B. Griffin, interfered with, enticed away, knowingly employed, or induced Dan Hutson to leave the employment of Cox & Alexander before the expiration of Ms contract of employment, if any, with said Cox & Alexander for the year 1923, and the State must further prove beyond a reasonable doubt that the defendant, P. B. Griffin, at the time of the alleged enticement, knew of the existence of a contract of employ-' ment between Cox & Alexander and Dan Hutson for the year 1923. If the State has failed to prove these facts beyond a reasonable doubt, your verdict will be for acquittal.”

This instruction was fully covered by the other instructions given 'by the court, and there was no error in refusing it.

The law applicable to this case, and the construction of the statute under which the charge was laid, is fully discussed in the case of Johns v. Patterson, 138 Ark. 420 and 145 Ark. 46, and it is not necessary to add anything to what was announced in the two opinions, in that case. . . ■

We are of the opinion that there is no error in the record, and the judgment will therefore be affirmed.- '


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    St. Clair v. State.
    Opinion delivered September 24, 1923.
    ■ 1. CRIMINAL law — FORMER CONVICTION — WHEN DEFENSE OF NOT AVAILABLE. — Where separate sales of intoxicating liquors to A and B were made by defendant at the same time, the fact that, in a prosecution for sale to A, B testified regarding the sale to himself does not make the. defense of former conviction,available in a subsequent prosecution for selling to B, when in the former trial the prosecution expressly elected to try the charge of selling to A, and the sale to B was not made an issue.

      Intoxicating liquors — sufficiency of evidence. — Where sales of intoxicating liquor to A and B were coincident with each other, hut there was no concert of action between them regarding purchase or payment, evidence held to warrant a finding that there were separate sales.
    Criminal law — instruction—weight of evidence. — Where the State elected to try defendant on a charge of selling intoxicating liquor to A, a remark of the court that the testimony of B regarding a sale by defendant to him at the same time could be considered only in reaching a conclusion as to the guilt or innocence of defendant on the charge of a sale to A, and not for the purpose of convicting for a sale to B, was not error, as expressing an opinion on the weight of the evidence.
    Indictment and information — disqualification of grand juror. — Under Crawford & Moses’ Digest § 3030, no indictment can be quashed because a grand juror failed to possess the qualifications required by law.
    Appeal from Johnson Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Paul McKennon, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Barden Moose, Assistants, for appellee.
   McCulloch, C. J.

Appellant has prosecuted an appeal from each of two judgments of conviction of the crime of selling whisky, hut, as the cases are similar, the attorneys have, by.consent, briefed them together, and the two cases will be disposed of in one opinion. ■

There are two separate indictments charging the sale ocf whiskey on the same day, but the oases were tried on different days of the term of court. It was the contention of the prosecuting attorney that two separate offenses were involved, and such is the contention of the Attorney General now, but counsel for appellant contends that there was only one offense committed, if any, and in the second trial there was a plea of former conviction.

In the first case which was tried the State relied for conviction on an alleged sale of whiskey to Jim Dickerson and C. T. Jones, and in the second case the State relied on an alleged sale to Mon Patterson and Joe Chandler. The sales were, according to the testimony, consummated at the same time. The facts in the cases are as follows: On the day in question Dickerson, according to his own testimony, met appellant on the street in Clarksville and .asked him if he knew where whiskey could be obtained, and appellant replied that it could be found ih a little hollow about five miles from Clarksville, near a place called Hudson Springs. According to Dickerson’s testimony, nothing was said between them about paying for the liquor. Dickerson called Jones, and the two got into Dickerson’s car and drove out to the designated place and searched for the liquor, but found none. They returned to their car and found that they had tire trouble, and while engaged in repairing the tire Patterson and Chandler drove up in another car, and, after getting out of the car, went to a thicket near by to search for whiskey.

Patterson testified that he applied to a man in Clarks-ville, with whom he was unacquainted, and had never seen before nor since, and inquired for whiskey, and the man told him that whiskey could be found in a thicket out at Hudson Springs. According to Patterson’s testimony, there was no further conversation .about the sale of liquor or about paying anything for it, except that the man told Patterson that, after he found the liquor and drove back toward town, he would meet a man on horseback, who would stop as soon as they met, and Patterson was directed to pay the man for the whiskey when they met on the road. Patterson testified -that he was not acquainted with this man, but that it was a man who had on a soldier’s uniform. Patterson called Chandler, and they went out together in the car and drove to the place where they were directed, finding Dickerson and Jones when they got there. After stopping their car, they went to the thicket to which they were directed, and, after making a search, they found two gallons of whiskey, in four half-gallon fruit jars. Dickerson and Jones were near them at the time, bnt did not see them when they found the liquor. Patterson and Chandler carried the liquor hack to their car, and, after putting it in, they drove up to where Dickerson and Jones were engaged in repairing their oar, and one of the jars, containing a half-gallon of liquor, was delivered to Dickerson and Jones, and the other three jars were retained by Patterson and Chandler. The car in which Patterson and Chandler were riding was found to be slightly out of repair when they started back to town, and, after repairs on both cars had been made, the whole party started back to town, Patterson and Chandler driving in front, and the other car following close behind. After driving about two- miles in the direction of Clarksville they met appellant riding horseback, and, as soon as they approached each other, appellant stopped, and the cars were also stopped. Without anything at all being said, according to the testimony, Patterson and Chandler paid appellant fifteen dollars for the whiskey they got, and Dickerson and Jones paid appellant six dollars for the whiskey they got.

Appellant did not testify in the case, but all of the other parties named — Patterson, Chandler, Dickerson, and Jones — testified that nothing was said when the money was paid. Dickerson testified that he had been acquainted with appellant for a number of years, and identified him as the man who gave him the directions in Clarksville as to where the liquor could be found and as the man to whom the payments for the whiskey were made.

In the first case tried the prosecuting attorney introduced as witnesses Dickerson and Jones, and then rested the case, relying entirely up-on their testimony and upon the alleged sale of whiskey to those two witnesses. Thereupon counsel for appellant introduced Patterson as a witness and drew from him a statement of the facts recited above. At the conclusion of Patterson’s testimony the- following colloquy occurred between tbe prosecuting attorney and the court:

“Mr. Borex (prosecuting attorney): I am relying on the testimony of Jones and Dickerson, and upon that alone. Court: The court will instruct the jury that this testimony is incompetent, except for the fact that it may show the circumstances of the man’s doing business, and what he is following, and that you are not trying him and will not find him guilty for selling to this witness, Patterson and Chandler. The testimony is not introduced for that purpose.”

Appellant’s counsel also called Chandler and introduced him as a witness, and at the conclusion of his «testimony the following occurred:

“Mr. Rorex: I want to ask the court at this time to tell the jury not to convict on the testimony of Joe Chandler, as upon the testimony of Mun Patterson. The State relies upon the sale made to Jones. Court: The court instructs the jury that the State is relying for a conviction in this case on the sale to Jones and Dickerson and not to Patterson and Chandler, and that this testimony is not admissible for consideration as to the guilt of the'defendant in selling to Jones and Dickerson further than it may 'be a circumstance, and you may consider it for whatever light it might throw on the truth or falsity of the charge in general, but not for the purpose of conviction.”

Appellant’s counsel objected to these rulings' and statements of the court in the presence of the jury, and ■saved exceptions. ; -

The court, in its final instructions to the jury, stated that the State relied solely on the alleged sale to Dickerson and Jones, and that the jury “shall only consider ■his guilt or innocence as to that particular transaction.”

On the trial of the other case the State introduced Patterson and Chandler, and announced its reliance for conviction solely on their testimony and the sale alleged to have been made to them. Appellant pleaded former conviction, and introduced the record in tlie former trial, which included the testimony of all four of the .parties mentioned. The contention is now, as before stated, that the facts of the case only constitute one offense — a joint sale to all four of the parties. We are of the opinion that, under the facts of the ease, there were two separate offenses — at least the jury might have so found — and that the State was entitled to make an election, after refraining from introducing all of the witnesses to make out a case for two separate convictions. The' case is ruled in this respect by our decision in Turner v. State, 130 Ark. 48, where, in a prosecution for celling liquor, the State relied on an alleged sale to a particular individual, and expressly made its election to prosecute for that offense, but, for the purpose of showing the circumstances, and character .of the liquor which was sold, introduced other witnesses, who testified about other sales. 'The court in the trial directed the jury to consider the testimony only for the purpose of ascertaining the guilt or innocence of th¿ accused with respect to the alleged sale to the particular individual. Subsequently, in the trial of the defendant for sales to persons who had been thus introduced as witnesses in the former trial, there was a plea of former conviction, and this court held that the trial court properly refused to sustain the plea. In disposing of the case -here we said:

“A plea of former acquittal will not be sustained unless it affirmatively appears that the prosecution in the case where the plea is interposed is for the same offense as that for which the defendant has already been acquitted. ”

'The case of Beck v. State, 141 Ark. 102, is also clearly in point’ and was the trial of a liquor case. There was a plea' of former conviction and an attempt to sustain it by showing that the witness on cross-examination in the former trial, was asked by counsel for accused in regard to the sale involved in the last trial, but the attorney for the State did not introduce any testimony, and there was not, in fact, any testimony introduced by the State tending to establish the guilt of the accused for the offense on which he was last tried. In that case we said: “It is only where, in such cases, there is evidence introduced for the purpose of sustaining the charge, that the judgment either for conviction or acquittal operates as a bar to further prosecution.” As we have already seen, the State did not, in the present case, introduce any testimony to sustain the charge of a sale involved in the second charge. On the contrary, the prosecuting attorney announced his express election to try the accused on the charge of selling to Dickerson and Jones. The sales were coincident with each other, but it was not a joint sale, according to the testimony, to all of the parties named. There was no concert of action between the parties, except that the liquor was discovered in the search made by Patterson and Chandler, but Dickerson and Jones took the part they desired and paid for it separately. Each of the pair of purchasers had made their separate arrangements for the purchase of the liquor, and the evidence in each case warranted the inference that there was a prearrangement between the purchasers and appellant. It is true that the negotiations made by Patterson and Chandler were not directly with appellant, but were conducted with a stranger “in soldier uniform;” but when the whole testimony is considered together it is evident that the arrangement was made for the sale of appellant’s liquor, and the latter in fact collected the purchase money from Patterson and Chandler. In the other case, as we have already seen, Dickerson actually made his negotiations with appellant and paid the money to appellant. The fact that appellant stopped in the road as soon as he met the parties in the oars and received the money warrants the inference that he was the party to the original transaction and that he would so conduct himself as had been foretold by the man “in soldier uniform. ’ ’

The court submitted the question to the jury as to whether or not the sale was a joint one to all of the four parties, or whether there were two separate sales, and we think the court was correct in doing so — at least that there was no prejudice to appellant in doing that. Certainly the testimony warranted the jury in finding that there were two separate sales, and we need not stop to inquire whether there was enough testimony to justify the conclusion that the sales were joint so as to constitute one transaction. ‘

It is further contended that prejudicial error was committed in the court’s remark to the jury in announcing its ruling in regard to the introduction of the testimony of Patterson and Chandler in the first trial” "We think there was nothing improper in the statement of the court, which amounted, in effect, only to an announcement that, after the prosecuting attorney had elected to try the case solely on the charge of the sale to Dickerson and Jones, the testimony of the other two witnesses could only be considered in reaching a conclusion as to the guilt or innocence of the defendant on that charge, and not for the purpose of convicting the accused on a charge of selling to Patterson and Chandler. It was not an expression of the court’s opinion on the weight of the evidence in any of its phases.

There was a motion in each case to quash the indictment on the ground that one of the grand jurors failed to possess the necessary qualification in that he was not a citizen and elector of the State. The statute precludes an inquiry into that question for the purpose of quashing an indictment. Crawford & Moses’ Digest, § 3030; Calloway v. State, 120 Ark. 204; Borland v. State, 158 Ark. 37.

The record is free from error, and the evidence is sufficient to sustain the verdict, so the judgment in each case is therefore affirmed.


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    Smith v. State.
    Opinion delivered September 24, 1923.
    Criminal law — conclusiveness of verdict. — Where a criminal cause was one that should have been submitted to the jury, and there was testimony legally sufficient to sustain the verdict, the same is conclusive on appeal.
    Criminal law — oath of jurors — waiver.—Where defendant and his ■ counsel were present when the jury was selected, impaneled and sworn, and did not object because all of them were not sworn on their voir dire, as required by Crawford & Moses’ Dig., § 3144, the irregularity was waived.
    Criminal law — new trial — competency of juror’s testimony. —Under Crawford & Moses’ Dig., § 3220, providing that a juror cannot be examined to establish a ground for new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot, held that where jurors in favor of conviction for manslaughter agreed that, if jurors in favor of conviction for murder would agree to convict for manslaughter, they 'might fix the punishment, the verdict was not' reached by lot, and hence testimony of jurors to show the mode of reaching the verdict was. incompetent.
    Criminal law — competency of juror’s testimony. — Defendant, on á'motion for new trial, could not prove by the jurors that they were influenced by the statement of a juror that on a former trial the jury were equally divided in favor of acquittal and conviction for murder in the first degree.
    Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;
    affirmed;

      Ponder & Gibson, for appellant.
    1. The verdict was arrived at by lot, “a contrivance to determine a question by chance or without the action of man’s choice.” By the agreement and compromise of the jury, eight men divested themselves of any voice in the fixing of the punishment of the defendant. Webster’s Diet.; 49 Ala. 396; 22 So. 138; 34 Id. 1019; 144 Ind. 86; 150 Ark. 32. The verdict was in the nature of a quotient verdict. 24 Am. Rep. 808 and noté; Thompson, Trials, § 2602; Thompson & Merr., Juries, § 409; 66 Ark. 264; 91 Ark. 497.
    2. Four of the jurors were not sworn on their voir dire examination as required by law. Constitution, Art. 2, § 10; C. & M. Dig. § 3144. Unless tlie record shows that the jury .were duly sworn to try the case, the judgment must be reversed. 7 Ark. 60; 10 Ark. 536; 11 Ark. 328; Id. 455; 12 Ark. 65; 25 Ark. 83; Id. 106; Id. 282; 29 Ark. 248; 45 Ark. 143; 50 Ark. 492; 154 Ark. 596; 17 Ark. 332; 227 S. W. 186; 68 Wash. 654; 123 Pac.. 1076; 40 L. R. A., N.'S. 1213; 111 Ind. 59 ; 60 Am. Rep. 673; 102 Ark. 180.

      J. 8. Utley, Attorney General; John L. Carter, Wm. T. Hammoch and Darden Moose, Assistants, for ap-pellee.
    1. The facts show that this was neither a lot verdict nor a quotient verdict. The affidavits of juror's could not be taken to impeach the verdict. 0. & M. Dig; § 3220 and Ark. cases there cited; 109 Ark.. 193;' 150 Árk. 27; 138 Ark. 594; 131 Ark. 312.
    2. The record reflects that the jury was duly and regularly selected, impaneled and sworn. If, however, any of the jurors were not sworn on their voir dire, that was an irregularity only, to which objection should have been made at the time, and the failure to do so amounted to a waiver.
   Wood, J.

The appellant was indicted by the Lawrence Circuit Court for the crime of murder in the first degree in the killing of one Wash McCutcheon. He was tried, convicted of voluntary manslaughter, and sentenced by judgment of the court to imprisonment in the State Penitentiary for a period of seven years.

1. The appellant contends that the evidence is not sufficient to sustain the verdict. It could serve no useful purpose as a precedent to set out and discuss the evidence in detail. Our conclusion is that the cause, is one that should have been submitted to the jury under the evidence, and, since there was testimony legally sufficient to sustain the verdict of the jury, the same is conclusive here as to the guilt of the appellant.

2. The record shows that a “jury of twelve men was selected, impaneled and sworn to try the case as provided by law.” It further shows that only three of these jurors were sworn on their voir dire to answer such questions as might be asked them touching their qualifications as jurors in the cause. Our statute provides: “In a prosecution for a felony, the clerk, under the direction of the court, shall draw from the jury box the names of twelve petit jurors, who shall be sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case on trial, and each juror may be examined by the State and cross-examined by the defendant touching his qualification.” Section 3144, C. & M. Digest. The record shows that the appellant and his counsel were present the cause, and it does not appear that he objected because some of the jurors were selected, impaneled, and when the jury was selected, impaneled, and sworn to try sworn to try the cause without being sworn on their voir dire to answer questions touching their qualifications as jurors. The appellant therefore must be held to have waived this requirement of the statute. The statute is not mandatory in the sense that a. trial, if otherwise regular, will be vitiated because of the failure or oversight of the trial judge to have the jurors sworn on their voir dire. If the appellant had asked the trial court to have the jurors sworn and the court had refused, this would have been an error fatal to the proceedings; but, since appellant did not ask that the jurors be sworn on their voir dire, but permitted the jury to be ■selected, impaneled, and sworn to try the cause without requesting the court to have them sworn on their voir dire touching their qualifications as jurors, he could not do so thereafter, and for the first time, on his motion for a new trial. The oversight on the part of the trial judge in not having the veniremen sworn on their voir dire was an irregularity which could be, and was, waived by the appellant.

3. The eleventh ground of appellant’s motion for a new trial is as follows: “Because the verdict of the jury was reached by lot and by chance, and was not the ver-diet of the jury, because the jury was divided, eight for manslaughter and four for murder in the second degree, and those who were in favor of manslaughter made the proposition to those who were in favor of murder in the second degree that if they would come down to manslaughter they' could fix the number of years in the penitentiary, and that this proposition was accepted by all the jurors, and the offense was fixed at manslaughter, and the four who were in favor of murder in the second degree fixed the penalty at seven years in the penitentiary.” The appellant offered the affidavits of four of the trial jury to establish the above ground of his motion for a new trial. But the allegations, if established, do not prove that the verdict was arrived at by lot, and therefore the testimony of these jurors was not competent to prove the facts set up in the 11th ground of the motion. Arnold v. State, 150 Ark. 27-32.

4. For the same reason the appellant would not be permitted to prove by certain jurors that they were influenced in their verdict because J. J. Baker, one of the jurors, said to the other jurors, while they were deliberating on their verdict, that his brother-in-law, Bill Teele, who was a juror at a former trial of the case, told him that the jury in the former trial was hung six to six; six in favor of murder in the first degree, and six in favor of acquittal.

The record presents no error prejudicial to the appellant. The judgment is therefore affirmed.