text:
    Jonesboro Compress Company v. Simpson.
    Opinion delivered November 17, 1930.

      E. P. Matties, for appellant.

      Caraway, Balcer $ Cautney; Knott S Spencer and Gordon Frierson, for appellees.
   Humphreys, J.

Appellant operated a compress at Jonesboro, received cotton from the appellees as warehouseman and stored it in section or shed “A” of the’ compress which was totally destroyed ¡by fire during the noon hour on December 8, 1927.

Appellees herein and many other owners of cotton which was destroyed in the fire brought separate suits in the circuit court of ¡Craighead County to recover the value of their respective lots of cotton.

The separate cases of appellees and those of H. J. Boolin, W. F. Rogers, Joe Edwards, W. ¡S. Harris, and Mrs. Mary Neyman were consolidated for the purposes of trial. After the consolidation W. S. Harris and Joe Edwards were each permitted to take a nonsuit in his case. The other cases were transferred on change of venue to the circuit court of Mississippi County, Chickasawba District, for trial. After the transfer of the consolidated oases to the latter county, Mrs. Mary Neyman took a nonsuit in her case. The other cases proceeded to trial upon the pleadings, testimony and the instructions, of the court which resulted in separate judgments in favor of each of the appellees for the value of his cotton, from which is this appeal.

The consolidated cases are companion cases with the consolidated cases which were before this court on appeal in the case of Jonesboro Compress Company v. A. W. Hall, 178 Ark. 753, 13 S. W. (2d) 298. The pleadings are identical, involving the same issue, and the testimony in the two cases is not materially different. The issue joined was succinctly stated in the Hall case, supra, and the facts were fully set out therein,.so reference is made to that casé for a statement of both the issue and the facts, rather than to restate them in the instant case.

The undisputed facts in the instant case reflect that section “A” of the compress company, containing about 3,000 bales of cotton, was left during the noon hour without any employee under any instruction to watch or guard against fire. True, the foreman, Peter Batch, testified in the instant case that when he left the compress at four ¡minutes after 12:00 o’clock he left Will Shelton, Charlie Watson, Robert Snow, Joe Perkins, Mack Campbell and Annie Williams there, and that, had it not been that they were to remain in the compress during the noon hour, he would not have left the compress. He did not testify as to what he would or would not have done in the Hall case, siopra. The parties mentioned by him were negro laborers, none of whom worked or were paid during the noon hour except Snow. Snow and Watson were in the boiler room which was separated from section “A” by a fire wall, and to get into section “A” they would have to go on an outside platform fifty feet. The others were accustomed to and did go into the old office, for the purpose of eating their dinner, adjoining section “A” but also separated from it by a wall containing some windows up quite a distance above the floor. None of them were watching or guarding section “A” against fire, and did not observe or discover the fire until too late to extinguish it. We do not think the additional testimony of the foreman changed the condition or situation in the least from the situation and condition reflected by the record in the Hall case, supra. The record in the Hall case reflected that section “A” ivas abandoned during the noon hour, and the record in the instant case reflects that no duty was imposed upon the employees by the foreman to watch and protect section “A” during the noon hour, and as a matter of fact none of them remained in section “A” during the noon hour.

The law of negligence declared and applied in the Hall case was declared and applied in the instant case, and correctly so, as the facts of the two cases are parallel in all material respects. The instant case therefore is ruled by the Hall case, supra.

Appellant contends for a reversal of the judgments because a change of venue was granted to appellees after consolidation of the cases without sufficient affidavits in each and every case, naming four of the cases in which the affidavits were defective or insufficient. Appellant has not favored us with an abstract of the proceedings on the question of removal, and we cannot intelligently pass upon this contention and therefore refrain from doing so.

Appellant also contends for a reversal of the judgments because, after the cases were consolidated, three of the parties were permitted to 'take nonsuits. They were permitted to dismiss their suits under § 1261 of Crawford & Moses ’ Digest, and that section accords them the privilege and right to dismiss their causes before the final submission of same to the jury or court. Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89. It is even within the sound discretion of the court to permit a non-suit without prejudice after final submission of the cause. St. L. S. W. Ry. Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S. W. 96. The mere fact that cases are consolidated for the’ purposes of trial cannot take from a party his statutory right to dismiss his suit under said section of the statute.

No error appearing, the judgments are affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. Ransom.
    Opinion delivered November 17, 1930.

      E. T, Müler, E. L. Westbrooke, Jr. and E. L. Westbrooke, for appellant.

      J. F. Johnston, for appelj.ee.
   Humphreys, J.

Appellee brought suit in the circuit court of Craighead County, Lake City District, against appellant to recover damages in the sum of $3,000 for injuries received by him in a collision between appellant’s motor train and an automobile in which he was riding at the public crossing east of Monett in said county through the alleged negligence of appellant’s employees in approaching the crossing’ in'failing to keep a lookout and ring- the bell or blow the whistle.

Appellant filed an answer denying negligence on its part and pleading negligence on the part of appellee as the sole cause of the collision and consequent injury.

The cause was submitted upon the pleadings, the testimony and, instructions of the court resulting in a verdict and judgment against appellant for $2,000, from which is this appeal.

The collision occurred on September 25, 1929, at said crossing just as the automobile in which appellant was riding had almost crossed over the track. The train struck the rear wheels of the automobile and carried it about three hundred feet before coming to a stop, killing the driver and severely injured appellee.

The testimony introduced by appellee tended to show that as the automobile approached the crossing at a reasonable rate of speed the occupants looked and listened for the train, but failed to see it on account of growing-cotton and high weeds upon the right-of-way or to hear any warning because the employees failed to blow the whistle or ring the bell on the motor train for the crossing, and that it was possible for them to have observed the automobile in time to stop the train and avoid the collision, had they been keeping a constant lookout, owing- to the elevation of the track above the highway.

The testimony introduced by appellant tended to show that the statutory signals were given as the train approached the crossing, and that, although a constant lookout was kept, the automobile was not discovered in time to prevent the collision, notwithstanding the engineer immediately set the brakes in emergency.

Appellant’s first contention for a reversal of the judgment is that the court erred in giving instruction number 1, which is as follows:

“You are instructed, if you find from a preponderance of the evidence that the plaintiff was injured by the operation of any train being run on the tracks owned or controlled by the defendant, then you are told that this makes a prima- facie case of negligence against the defendant, and casts on the defendant the burden of proof to sjiow that the injury complained of was not the result of its negligence, and if you find from the proof in the case that this burden has been met, then it devolves upon the plaintiff to make out its case by a preponderance of the evidence showing- some negligence on the part of the defendant, and that the injury complained of was the direct and proximate result of said negligence. ’ ’

It is argued that the instruction should have told the jury to return a verdict for appellant if they found from the evidence that it was not guilty of negligence. This is, in effect, what the court told them in the instruction. We cannot agree with appellant that the form of the instruction was prejudicial, as it clearly stated the law. An instruction cannot be said to be prejudicial if it embodies the law applicable to the facts in a given case, even though it might have (been framed differently. The matter of form is really immaterial.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 2 upon the issue of contributory negligence. The instruction follows the statute which provides that one cannot recover for an injury inflicted throug’h the negligence of a railway company if his own negligence contributing thereto- was equal to or greater, than the negligence of the railway company; but that he might recover in proportion to the degree of negligence if his negligence was less than that of the railway company. The contention is therefore without merit.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 3 upon the lookout statute and the doctrine of discovered peril. The argument is made that the undisputed evidence showed that a constant lookout was kept, and that, after the presence of appellee was discovered on the track, the employees did all they could to prevent the collision. We cannot agree that the instruction was abstract and therefore improper. On the contrary, the testimony tends to show that, on account of the elevation of the track, appellant’s employees might, have discovered appellee in time to have prevented the collision, had they been keeping a constant lookout.

The next and last contention of appellant for a reversal of the judgment is that the court admitted evidence relative to the height of the weeds and cotton growing upon the right-of-way. The argument is made that the testimony was not responsive to the issues joined. We think the testimony admissible upon the issue of contributory negligence. If the weeds and growing cotton concealed the train from the view of the occupants of the automobile as they approached the crossing, certainly it was permissible to show the existence of such obstruction as tending- to prove that appellee did not drive upon the track in front of a moving- train that he could see by looking. The testimony tended to show that these obstructions prevented appellee from seeing the train as it approached the crossing.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Central Life Insurance Company of Illinois v. Thompson.
    Opinion delivered November 17, 1930.

      Arnold ■<& Arnold and King, Mahaffey, Wheeler & Bryson, for appellant insurance company.

      II. M. Barney and Frank 8. Quirni for Thompson; J. M. Garter and B. E. Garter, for Texarkana National Bank; James D. Head for Louis Ileilbron.
   Kirby, J.,

(after stating’ the facts). Appellant insists that the chancellor erred in refusing to render a personal judgment against Louis Heilbron, upon his obligation to pay the indebtedness due under the mortgage, upon foreclosure thereof; while it is contended for Heilbron that upon his conveyance of the lands to Floyd Thompson, who assumed the debt, he became thereby only a surety for Thompson, and was released from the payment of the debt by appellant’s granting Thompson an extension of time for payment of the loan, without his assent or notice to him thereof.

In Wallace v. Hammonds, 170 Ark. 952, 281 S. W. 902, the court held, that a purchaser of lands from the mortgagor, who assumed or agreed to pay the mortgage indebtedness, would become personally liable therefor, saying: “It is well settled in this State that, where a purchaser of mortgaged lands from the mortgagor assumes and agrees to pay the mortgage thereon, he becomes personally liable therefor, which liability inures to the benefit of the mortgagee, who may enforce it in an appropriate action. Felker v. Rice, 110 Ark. 70, 161 S. W. 162 ; Walker v. Mathis, 128 Ark. 317, 194 S. W. 702 ; Kirby v. Young, 145 Ark. 507, 224 S. W. 970 ; and Beard v. Beard, 148 Ark. 29 ; 228 S. W. 734.

It has also been held, that an agreement, between the purchaser of mortgaged lands with the mortgagor, to pay the mortgagor’s debt to the mortgagee, may be rescinded without the latter’s knowledge or consent, where no privity of contract has been established by the mortgagee’s acceptance of the purchaser as the debtor; but such agreement cannot be rescinded by reconveyance to the mortgagor without consent of the mortgagee, after the latter has been notified of such assumption and has extended the time of making the payment to the purchaser, and the property has, meanwhile, decreased in value. McCown v. Nicks, 171 Ark. 260, 284 S. W. 739.

The lands were conveyed by the mortgagors to Thompson and Heilbron, subject to the mortgage only, without the assumption by them of the debt or agreement to pay it. When the debt became due, however, Thompson and Heilbron procured an extension of five years’ time thereon, from appellant company, executing at the time their written contract, designated “Mortgage Renewal Agreement,” reciting the whole transaction, and, as owners of the fee title, jointly and severally bound and obligated themselves to appellant company, “present owners and holders of the mortgage,” to pay the said principal sum of money, together with interest thereon at the rate of six per cent, per annum, payable annually, from November 1, 1922, on the first day of November, 1927, to which time the payment of the said principal debt is hereby extended with the terms, tenor and stipulations contained in the said mortgage.

“As evidence of the installments of interest on the said principal debt, Floyd Thompson and Louis Heilbron have this day signed five interest coupons for the sum of nine hundred ($900) dollars each, and we expressly agree that such interest coupons shall form a part of the contract evidenced by said note, mortgage and this renewal agreement and be subject to the terms, conditions and stipulations therein contained.” Thus it will be seen that, although a vendee of a mortgagor of the lands included in the mortgage ¡may rescind the contract of purchase, where the lands were conveyed subject only to the mortgage, without the consent or assent of the mortgagee, he cannot do so when the conveyance of the mortgaged lands was made to him upon his assumption or agreement to pay the mortgage debt, without the knowledge, consent or acquiescence of the holder of the mortgage debt after privity has been established between the lien holder and the vendee, who has assumed the debt. A fortiori in the instant case nothing could be done by the vendor of the mortgaged lands and the purchaser thereof, subject to the mortgage, that could release such vendee from liability on his joint and several note to the mortgagee, binding himself to the payment of the mortgage debt by the valuable consideration of an extension of time thereon. Having bound himself by a valid written contract to the mortgagee for a valuable consideration for the payment of the mortgage debt, he could not escape liability under such obligation upon any contract, agreement or conveyance thereafter made between himself and his co-obligor on the contract to pay the mortgage debt without the assent or consent of the holder of such obligation, which was not given in this case..

The conveyance by Heilbron of the mortgaged land, purchased by him and Thompson subject to appellant’s mortgage, to Thompson, subject to said mortgage and upon assumption by him of the mortgage debt, could not therefore have had effect to release Heilbron from the binding force of his obligation made to the mortgagee to pay the mortgage debt without the knowledge and consent of the mortgagee. There was no agreement between the parties by which Thompson became the principal debtor of the mortgagee and Heilbron the surety, and certainly, without such agreement, the conveyance by one of the grantees of the mortgaged land to the other subject to the mortgage and the grantee’s assumption of the debt could not have effect to release Heilbron from his obligation to the mortgagee to pay the mortgage debt. Even if it had been shown that Heilbron had only become the surety of Thompson, it was incumbent on him to show, as a part of his defense, that the indulgence given by the mortgagee in the extension of time to Thompson was without his assent, which was not done. Heilbron was not bound to pay the mortgage debt because of the conveyance of the mortgaged lands to him and Thompson subject to the mortgage, not having agreed to assume the debt, but by his contract with the mortgagee for its payment, from which he could not be released without the consent or acquiescence of the lien holder. In other words, he was bound upon his valid contract for a valuable consideration made direct to the mortgagee to pay the mortgage debt, and any assumption of such debt or agreement between him and his coobligor upon the contract to pay the mortgage debt, for the conveyance of his interest in the lands, could not have released him from such obligation, the mortgagee not consenting thereto. McCowan v. Nicks, supra ; Sheppard v. May, 115 U. S. 505, 6 S. Ct. 119 ; Watson v. First State Bank, (Tex.) 237 S. W. 1106 ; Shapleigh Hardware Co. v. Chestnut, 90 Tex. 110, 37 S. W. 411 ; Johns v. Wilson, 180 U. S. 448, 21 S. Ct. 445 ; Willard v. Wood, 164 U. S. 520, 17 S. Ct. 176 ; Cucullu v. Hernandez, 103 U. S. 756. Im the latter case the court said: “It cannot, we think, be reasonably claimed that a debtor is converted into a surety, by his creditor’s acceptance of an additional promise from a third person to pay the debt due him by his debtor. There is no element of suretyship in such a contract, unless it be that the additional debtor might be regarded as surety for the original debtor. The relation between the creditor and the original debtor is not changed by such an arrangement.” See also Felker v. Rice, supra ; Walker v. Mathis supra ; Iowa Title & Loan Co. v. Clark Bros., (Ia.) 224 N. W. 744 ; Herbold v. Shelly, 224 N. W. 781 ; Royal Union Life Co. v. Waggoner, 227 N. W. 599 ; Wolfe v. Murphy, 47 App. D. C. 296 ; and Hamiter v. State National Bank, Texarkana, 106 Ark. 157, 153 S. W. 94.

Little need be said in disposing of the appeal of Thompson against the bank. It is insisted by the bank that the court erred in allowing the admission of parol testimony to contradict, vary and add to the terms of the contract of settlement between the parties, and the contention must be sustained.

The written contract recites the many reciprocal agreements and obligations of the respective parties, and the statement therein, as to the consideration, is more than a mere statement of fact and acknowledgment of páyment of a money consideration, and is of a contractual nature, and the part of the contract relative thereto can no more be changed or modified by parol or extrinsic evidence than any other part. Mott v. American Trust Co., 124 Ark. 70, 186 S. W. 631 ; Williams v. C. R. I. & P. Ry. Co., 109 Ark. 82, 158 S. W. 967 ; Delaney v. Jackson, 95 Ark. 135, 128 S. W. 859 ; 10 R. C. L. 1044 ; Sims v. Best, 140 Ark. 384, 215 S. W. 819 ; 30 L. R. A. 442 ; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405, 131 S. W. 878 ; Ashley D. & N. Ry. Co. v. Cunningham, 129 Ark. 346, 196 S. W. 798 ; and Harris v. Trueblood, 124 Ark. 308, 186 S. W. 836.

Moreover, a careful examination of the record of all the testimony does not disclose that the chancellor’s finding that the bank had not assumed to pay off any of the prior mortgages or liens against the property conveyed to it by Thompson in settlement of his obligations to the bank, is contrary to the preponderance of the testimony, but rather that the preponderance of the testimony supports the chancellor’s finding that no such agreement or obligation was imposed upon the bank by said settlement; and the decree as to the bank must be affirmed.

It follows that Heilbron was liable to the payment of the mortgage debt, his note or obligation therefor, and the court erred in not so holding and rendering judgment against him for the balance remaining due after the application of the proceeds of the lands sold under foreclosure to the payment thereof. For such error the decree must be reversed, and the cause remanded, with directions to enter a decree in conformity with this opinion as to Heilbron, and the decree on the appeal of Thompson against the bank will be affirmed. It is so ordered.

MoHaney and Butler, JJ., dissent on the reversal.


text:
    Lutes v. Lerner.
    Opinion- delivered November 17, 1930.

      Harrison, Smith & Taylor, for appellant.

      Lowell W. Taylor and Keeble T, Herron, for appellee.
   Kirby, J.,

(after stating the facts). No error is alleged to have been committed by the trial court in the {first phase of the case, and the verdict of the jury is conclusive df that issue.

There was much testimony introduced, but it was shown that the potatoes delivered to appellant were “certified” indicating there had been four inspections of them before delivery, and others testified that the potatoes were examined upon being unloaded from the car and appeared to be in good condition, there being no evidence of their having become overheated or injured from cold. 'The appellant, himself, admitted that the potatoes were of good and uniform size and appeared to be in good condition when received by him.

The testimony upon the part of appellees by farmers of long experience conduces to show that the season of 19¡27 was so unusually wet at planting time as to cause most of the potatoes planted in appellant’s vicinity to rot in the ground and bring about almost a total failure of the potato crop. The weather bureau records were introduced in addition to the other testimony showing the unusual and excessive rainfall in March and April of that year. Appellant claimed to have commenced planting the potatoes on the 17th day of March, and the report showed it had rained on 7 preceding days of that month a total of 5.79 inches and 2.14 inches fell on the l'2th; and that the rainfall of 12 days in April from the 1st to the 16th was a total of 10.80 inches.

Some of the testimony of the witnesses, the operators of farms, as to the cause of the failure of the potatoes to sprout was objected to, but after a careful examination. of the record we are convinced that no error was committed in the introduction thereof, the witnesses all. shotwing themselves to be experienced in farming and the raising of potatoes and acquainted with the conditions surrounding the planting of the crop in April, 1927. The verdict is amply supported by the evidence, a decided preponderance of it in our opinion justifying the jury’s finding, while the burden was upon appellant to establish his defense.

We find no error in the record, and the judgment is . affirmed.


author: Mehappy, J.

text:
    Hot Springs Golf & Country Club Association v. Community Bank & Trust Company.
    Opinion delivered November 17, 1930.

      Geo. P. Whittington, for appellant.

      C. T. Gotham, S. W. Garratt and G. Floyd Huff, for appellees.
   Mehappy, J.

The 'Southwestern Marble & Tile Company brought suit in the Garland Chancery Court against appellants, Robert Higgins and Hot Springs Golf & Country Club Association, and against appellees, A. W. Griffee, C. J. Horner and Community Bank & Trust Company. It alleged that the Hot Springs Golf & Country Club Association was the owner of certain real property situated in Garland County, Arkansas, and that it had entered into a contract with appellant, Robert" Higgins, for the erection of a building on said lands, and Higgins sublet a part of said contract to appellee, Griffee. . That Griffee purchased certain materials from the Southwestern Marble & Tile Company in the sum of $1,432.67, which materials went into said improvement, and it claimed a lien on the lands on which the building was erected. It also alleged that Horner and the Community ■Bank & Trust Company claimed an interest in the property. It had previously filed a mechanic’s lien in proper form and in the time prescribed by law for the sum sued for. It asked judgment against Griffee, and that the same be declared a lien upon the real property described in the complaint. The Community Bank & Trust Company filed answer admitting the contract between the Hot Springs Golf & Country Club Association and Higgins for the erection of the building and the subletting of part of the contract to Griffee. This answer also alleged that it had no knowledge in reference to the claim of the Southwestern Marble & Tile Company and denied that it had any claim. The Community Bank & Trust Company made its answer a cross-complaint alleging that on July 11, 1928, it at the instance and request of Griffee, and in pursuance to the agreement of 'Higgins, agreed to advance tp Griffee certain sums of money for the purpose of paying for labor and materials on the subcontract which Griffee had with Higgins, and with the provision that the payments of estimates due Griffee by Higgins should be paid to Community Bank & Trust Company, and provided that in no case should any advances be made in excess of the contract price $5,500, the amount which Higgins had agreed to pay Griffee. That Higgins was the general contractor, accepted the agreement and agreed to pay the amounts as they became due to the Community Bank & Trust Company. The agreement between Higgins and Griffee as to the bank advancing money, was as follows:

“July 11, 1928.
_ “Mr. Robert Higgins, General Contractor,
“Hot Springs Golf and Country Club, City.
“Dear Sir: The Community Bank & Trust Company is advancing me money for labor and material on the Hot 'Springs Golf and Country Club job and request that you make all payments direct to them as estimates become due, in no case to exceed the amount of the contract: fifty-five hundred dollars ($5,500).
“Yours very truly,
“A. W. Griffee.
“I accept the above agreement and -will pay the amounts as they 'become due direct to the Community Bank fe Trust Company.
“R. T. Higgins.”

The Community Bank & Trust Company alleged that it loaned Griffee, on the security of its agreement and the acceptance thereof by Higgins, sums aggregating $1,675 evidenced by three promissory notes executed by Griffee to it, and that the money was loaned for the purpose-of paying for labor and material; that it went into the work Griffee was performing for Higgins. That, while the bank did not enter into any agreement with Griffee and Higgins to do so, it acted with their consent and approval and honored checks and paid for material alleged to have been used in the building in the amount of $2,928.98, and for labor $2,849.93. It alleged that Higgins executed and delivered to it on October 27,1928. his check for $2,456.75 drawn on the Arkansas National Bank of Hot Springs with the notation on the check, “Paid in full Country Club Job for A. W. Griffee, contract.’’’ That at the time said check was delivered to it Griffee was indebted to it in the sum of $1,675 principal on said notes executed by Griffee for the purpose of securing money to pay for the labor and materials which went into the building and interest on said notes of $15.16, aggregating $1,690. That no part of this sum had been paid. That the bank had agreed to apply the balance of the proceeds of said check after paving these notes, upon bills which had been presented to it and had been approved by Griffee and Higgins. It accepted the check, and the bank refused to pay same, and it was returned to 'Community Bank & Trust Company. It asked judgment against Higgins and Griffee for $2,456.75 with interest and that upon the payment of the check it would be authorized and directed to first pay the sum due it on said notes with interest, and that the balance be applied under the order and direction of the court. Copies of the notes and check were attached to the complaint as exhibits, also a list of cheeks drawn by Griffee which purported to be payments for material and labor. The total amount paid out by the bank being $5,778.91.

C. J. Horner filed answer alleging that he had furnished materials for Griffee to go into the Country Club job; had filed his mechanic’s lien against the property of the Hot Springs Golf & Country Club Association and asked for judgment and a lien for $251.90.

A. W. Griffee did not answer.

Peyton Bondurant filed intervention alleging that he furnished materials to Griffee which went into the Country Club job and claimed a mechanic’s lien and judgment for $223.97.

Robert Higgins filed answer denying that at the request of Griffee the Community Bank & Trust Company agreed to advance to either Griffee or him sums of money for the purpose of paying for labor and materials. He admitted that Griffee executed the instrument, and that he signed the memorandum at the bottom, but stated that he at no time entered into any agreement with the Community Bank & Trust Company other than that contained in his acceptance of the order directed to him and signed by Griffee; denied that money was paid by the bank to Griffee with his consent and approval. He alleged that the agreement entered into between himself and Griffee formed a part of and was subject to the agreement and specifications for the erection of the building. Higgins also alleged that on October 27 Griffee delivered to him receipts showing payment of $1,432.67 to the Southwestern Marble & Tile Company the sum of $472.21 to Homer, which receipts purported to be in full payment of all materials furnished to Griffee and used in the erection of the building. That Griffee also exhibited to him a receipt from Peyton Bondurant, and that the Southwestern Marble & Tile Company, Horner and Bondnrant were claiming liens on the building and premises and claiming they had never been paid, and alleged that, if the liens were established, Higgins would be compelled to pay and discharge them as a liability against Griffee, and that, if the liability on the liens was established, it should be discharged out of the sums due on his contract as a part of the consideration for the performance thereof. He admitted that, at the time his check was delivered, Griffee was indebted to the Community Bank & Trust Company $1,675 and interest, but denied that he entered into any agreement with the bank to apply any sum of money represented by said check upon the bills. He admitted that he stopped payment of the check because the sum of money was not due Griffee, and was not payable to the Community Bank! & Trust Company. He alleged that, if the claims of the Southwestern Marble & Tile Company, Higgins and Bundurant were established as liens, he would be compelled to pay them, and that he was entitled to deduct any sum which he might be compelled to pay from the amount due said Griffee and payable to the Community Bank & Trust Company under his acceptance of the order, and that he was willing to pay the sum of $2,456.75 to such person or persons as the court might determine were entitled to the same.

Higgins and the Hot 'Springs Golf & Country Club Association answered complaint of the Southwestern Marble & Tile Company, admitting the ownership of the lands owned by the Country Club Association, admitting the contract for the erection of the building and that Higgins sublet part of the contract to Griffee. They admitted that Griffee purchased materials from Southwestern Marble & Tile Company which were used in the construction of the building, but had no information as to the amount, and denied that they were liable for the payment thereof, and denied that the Southwestern Marble ■& Tile Company were entitled to a lien on the building; denied that Horner and the bank had any claim upon the property. They then alleged that Griffee ayas to install the marble and slate AYork for $5,500, and that Griffee did install and furnish the material and that on October 27,1928, there AYas a balance due Griffee on the contract of $2,189, and that the Southwestern Marble & Tile Company claimed it AYas entitled to receive $1,432.67, and that on October 26, the Southwestern Marble & Tile Company executed its receipt acknowledging payment in full, and that, acting upon the faith of said receipt, Higgins delivered to the Community Bank & Trust Company his check for $2,456.75 in full payment of the sum due Griffee under the contract. The receipt of the Southwestern Marble & Tile Company Avas attached as an exhibit and was signed by A. N. Mc-Aninch. That Higgins would not have issued said check to the bank for the use and benefit of Griffee if the receipt of the Southwestern Marble & Tile Company had not been exhibited and delivered to Higgins. Higgins and the Hot Springs Golf & Country Club Association filed their answer to the cross-complaint of Horner, denying the allegations in Horner’s cross-complaint. About the same allegation was made with reference to receipt by Horner and allegation that the Southwestern Marble & Tile 'Company and Horner were estopped by giving the receipts.

The court rendered judgment in favor of the Southwestern Marble & Tile Company against the estate of A. W. Griffee and Robert Higgins and the Hot Springs Golf & Country Club Association for the sum of $1,432.67, with interest from October 27, 1928, at 6 per cent, per annum and costs, and in favor of C. J. Horner against the same parties for the sum of $251.90, Avith interest from October 27, 1928, at 6 per cent, per annum and costs, and in favor of the Community Bank & Trust Company against the estate of A. W. Griffee and Robert Higgins for the sum of $1,903.32, Avith interest at 8 per cent, per annum from date of judgment and costs. Judgment was also rendered in favor of Peyton Bondurant against the estate of A. W. Griffee, Robert Higgins and Hot Springs Golf & Country Club Association for $223.97, with interest from October 27, 1928, at 6 per cent, per annum and costs. The judgments of the Southwestern Marble & Tile 'Company, C. J. Horner and Peyton Bondurant were declared liens upon the property of the Hot Springs Golf & Country 'Club Association and provided for sale of property. While appellants call attention to the receipts given by the Southwestern Marble & Tile Company, Bondurant and Horner, and say that Higgins relied on these receipts, they close their brief with the statement that the court should have found that the claims of Southwestern Marble & Tile Company, Horner and Bondurant should be paid. The undisputed evidence shows that these parties furnished the materials, and that said materials actually went into the building. Neither Higgins nor the Hot Springs Golf & Country Club Association was in any way prejudiced by the receipts. Neither of them relied on the receipts nor changed their position in any way. Higgins was present when receipts were given and knew that they were given for a check and knew their claims had not been paid. He knew all the facts.

We said recently: “It is true that one by his conduct or statement may he estopped from asserting rights which might otherwise have existed, but, before he will be estopped, it must be shown that another has in good faith relied on such conduct or statements, and has been thereby led to change his position for the worse.” Norton v. Maryland Casualty Co., ante p. 609. However, appellants do not insist that the judgments in favor of these parties were not proper. It is conceded by Southwestern Marble & Tile Company and Bondurant that there should be no personal judgment in their favor against Robert Higgins and Hot Springs Golf & Country Club Association. The appellants do not argue the question. However, since appellees request that the said personal judgment in favor of these parties against Higgins and Hot Springs Golf & Country Club Association is an error, the judgment is accordingly modified as requested. Appellants insist that the judgment in favor of the Community Bank & Trust Company against the estate of A. W. Griffee and Bobert Higgins should be reversed.

The contract as to the furnishing of money is set out above. Higgins as well as Griffee was interested in this matter. The bank furnished the money sued for and did it on the faith of the letter written by Griffee to Higgins, and there is nothing to indicate that the bank was to look after the distribution of the money, but the agreement was to advance money to Griffee to pay for labor and materials. There was no suggestion that the bank was to see that the money so advanced was properly applied. Higgins accepted this agreement as it was written without suggesting any modification or change, and he of course knew that the money under this agreement would be paid by the bank direct to Griffee. It is undisputed that the bank furnished the money.

The questions here are similar to the questions in the case of Oliver Construction Co. v. Union Trust Co., 171 Ark. 482, 284 S. W. 779, and Crow Oil & Gas Co. v. Drain, 171 Ark. 817, 286 S. W. 971.

The modification as to personal judgment above mentioned is made as requested by appellee, and the decree is in all other things affirmed.


author: McHaney, J.

text:
    Missouri Pacific Railroad Company v. Brown.
    Opinion delivered November 17, 1930.

      Thos. B. Pryor and Thos. B. Pryor, Jr., for appellant.

      Robert Bailey and Marveline Osborne, for appellee.
   McHaney, J.

Appellees sued appellant in three separate actions for damages resulting from a crossing accident in the city of Russellville—the Browns for personal injuries, and the Buerkle Buick Company, for destruction of its Buick two-door sedan. The cases were consolidated for trial hy consent which resulted in verdicts and judgments for appellees as follows: For Buerkle Buick Company, $487.50; for George J. Brown, the driver of the car, $G75; and for Jim or J. G. Brown, $100.

1. The first assignment of error is that the court erred in giving instruction No. 3 on the measure of damages for the injury to the automobile of the Buerkle Buick Company, as follows: “Gentlemen of the jury, you are instructed that in arriving at the amount due the plaintiff Buerkle Buick Company that you will take into consideration the cost of the car to the plaintiff and the amount that the car is reasonably worth to the plaintiff, and you may find for him in any sum you find the car to be worth, not exceeding the amount sued for.”1 It is said this instruction is too indefinite and uncertain to furnish a correct guide to the jury as to the measure of damages to the automobile, and the case of K. C. S. Ry. Co. v. Biggs, 181 Ark. 818, 28 S. W. (2d) 68, is cited to sustain the contention. In that case the automobile was not destroyed, but damaged, and the trial court instructed the jury to “fix the amount of her recovery at whatever sum you find from the testimony will fairly and reasonably compensate her for damages to her automobile, if any.” This court held in that case that the proper measure of damages was the difference between the market value immediately before the injury and immediately afterwards. Here, however, the car was destroyed. It had no' value 'after the injury except a nominal value for salvage. Buerlde had, the afternoon of its destruction that night, just acquired the car at a cost of $487.50 and testified that it was worth in excess of that sum. We are of the opinion, therefore, that the court did not err in giving the above instruction.

2. It is next urged that the court erred in part in giving instruction No. 1 on its own motion. This is a long instruction covering the three causes of action in respect to the comparative negligence statute. It correctly told the jury that if the driver of the car was guilty of contributory negligence, then Buerlde Buiek Company could not recover anything for damages to its car. It then incorrectly told the jury if both the railroad company and the Browns were negligent, “then if the negligence of these two plaintiffs exceeded the negligence of the railroad company, then you would reduce the amount of your verdict, if you were to find they were entitled to recover, reduce it in proportion to the negligence of the -plaintiffs as shown by the testimony in comparison with, the negligence of the railroad company.” Of course that is not a correct statement of the law and refutes itself. But the court, in the same instruction, correctly stated the law with reference to Jim Brown as follows: “;So that, if you find him negligent on that act, why you would compare his negligence with that of the railroad company, if you found it negligent. If his negligence was equal to the railroad company or exceeded it, find a verdict against him. If it was of less degree, find a verdict for him and reduce the amount of his recovery in proportion to the negligence of the railroad company and his negligence as compared.” Again, immediately following the above quotation the court said: ‘ ‘ The same rule applies to George Brown. If you were to find the railroad company negligent, then find George negligent, you would apply the same rule.”

This instruction was based on § 8575, C. & M. Digest, commonly referred to as the comparative negligence . statute. It has been many times held by this court under this statute that contributory negligence is not a bar to an action against a railroad company, for a personal injury caused by the running of trains, unless the degree of the plaintiff’s negligence, is equal to or exceeds the negligence of the persons operating the trains. Davis v. Scott, 151 Ark. 34, 235 S. W. 407 ; St. L. S. F. Ry. Co. v. Kirkpatrick, 155 Ark. 632, 245 S. W. 35 ; Powell v. J. L. C. & E. Ry. Co., 166 Ark. 252, 266 S. W. 78 ; St. L. S. F. Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576. No specific objection was made to the erroneous part of the above instruction, and, since the court finally correctly declared the law as applicable to all parties, we do not think the jury could have been misled. If the court’s attention had been called to the conflict in the instruction, it would no doubt have corrected it. Moreover, no prejudice resulted therefrom, in view of the verdict in Buerkle’s favor. The jury necessarily found that the Browns were not guilty of contributory negligence, else they could not have found a verdict for Buerkle, for the court specifically instructed that the contributory negligence of the driver would bar a recovery for damage to the car.

3. It is finally argued that the verdict is contrary to the evidence, that there is no substantial evidence to support it. We cannot agree. The evidence was in dispute. The testimony for appellees was sufficient to take the case to the jury, and we can see no useful purpose in reviewing it, as it would unduly extend this opinion. ' Suffice it to say the evidence was sufficient to support a verdict for either party.

Affirmed.


text:
    Merchants’ Insurance Company v. Barton.
    Opinion delivered November 17, 1930.

      Hayme, Parks •<£ Westfall and Thompson, Knight, Baker S Harris, for appellant.

      Gcmghan, Sifford, Godwin <& Gcmghan, for appellee.
   McHaney, J.

Appellee, Phillips, a merchant of Camden, Arkansas, took out a policy of fire insurance with appellant on his stock of merchandise for $2,500, dated March '22, 1928. Thereafter on May 31, 1928, Phillips sold and assigned the insured property to appellee Barton, as trustee, and appellant’s agent, Benson, made the following indorsement on the policy: “The interest of Prank Phillips, as owner of the property insured under this policy, is hereby transferred to C. L. Barton, as trustee, purchaser, P. P. Benson, agent.” Barton took possession and employed Phillips and other salesmen to conduct the business. On July 12, 1928, Benson secured possession of the policy in question from Phillips for the purpose, according to Phillips of looking it over. He took it to his office, and, without notice either to Phillips or Barton, made this indorsement thereon: “Cancelled 7-12-28, rate pro-rated by the company, return premium $22.40,” and sent same to appellant’s general agents in Dallas, Texas. On July 21, 1928, the building and contents were totally destroyed by fire originating in a property nearby. Proper proof of loss was made in apt time, but appellant refused the claim on the ground that the policy had been canceled. ' This suit followed, resulting in a verdict and judgment for appellees for $2,500, penalty and attorney’s fees. .

Appellants first contention for a reversal of. the case is that the court erred in refusing its request for a peremptory instruction - in its favor for the following reasons:

1. That the total concurrent insurance permitted, including the policy in question, was $12,000, and that the insured had $12,750. It is true that only said sum was permitted, and that at the time this policy was issued, it together with other policies exceeded this amount. But •the proof shows that Mr. Benson had canceled $3,250 of insurance other than the attempted cancellation of this policy, prior to the loss, which reduced the amount of insurance far below the total permitted. .Such being the case, the rule announced in the recent case of North River Ins. Co.v. Loyd, 180 Ark. 1030, 23 S. W. (2d) 988, applies, and this policy was not void because of over insurance. It therefore becomes necessary to discuss the question of waiver on account of the knowledge of Benson of such over’ insurance.

2. That the record warranty clause was violated . in three particulars, to-wit: (1) That no inventory was taken; (2) that no adequate set of books were kept; and (3) that the records were not kept in a fireproof safe. Section 1 of the record warranty clause of the policy provides that the assured must take a complete itemized inventory of his stock at least once each year, “and within twelve months of the last preceding inventory, if such has been taken.” If no inventory has been taken in twelve months prior to the date of policy, “and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of this policy, one shall be taken within thirty days, ’ ’ or the policy shall be void. The undisputed proof is that an inventory was taken in January, 1928, less than 90 days before the policy was issued. The proof further shows that a set of books, such as the ordinary merchant usually keeps, was kept. A substantial compliance with the record warranty clause is all that is required, and we are of the opinion appellees substantially complied therewith. Queen of Ark. Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771 ; § 6148, C. & M. Digest. Section 2 of the same clause requires the assured to keep a set of books showing a complete record of the ¡business done, including purchases, sales and shipments, both for cash and on credit, and it is claimed this was not done. But the proof contradicts appellant. It shows that a complete record of the business done was made, and while it is true some of the invoices were destroyed, duplicates were obtained from wholesale houses and substituted. This likewise was a substantial compliance. As to the failure to comply with the 3d section of this clause, the facts are that the books and records were preserved and not destroyed, except some invoices. Appellant did not ask to see the books. It denied liability and declined to pay the loss before suit on the gro’und that the policy had been canceled. All these matters regarding violation of the record warranty clause were considered and determined adversely to the contention of appellant in Royal Ins. Co. of Liverpool v. Morgan, 122 Ark. 243, 183 S. W. 198.

3. That Barton had completed his trust and should have been discharged; that he had no further interest in the suit. We cannot agree with appellant in this regard. While it is true that the major portion of the object of the trusteeship has been accomplished, it is not all completed. Considerable litigation with insurance companies has necessitated the employment of counsel and an adjuster, who have not been paid for their services, nor has appellee been paid for his services as trustee.

Other questions are argued by counsel for a reversal of the case—that the court erred in refusing to transfer the cause to equity on its motion, that the value of the property destroyed was not proved, and error in the admission of certain testimony—all of which we have carefully considered and find the points not well taken. We think it would serve no purpose to discuss them in detail.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Judd v. Wilson.
    Opinion delivered November 17, 1930.

      John L. Crank, for appellant.

      G. E. Morris and J. W. Barron, for appellee.
   Butler, J.

One Harris brought suit against the Old American Insurance Company in the municipal court of Pulaski County, where, from a judgment adverse to it, the defendant insurance company appealed to the circuit court and executed a bond superseding the .judgment, as prescribed by § 6513 of the Digest, the appellant here executing said bond as surety.

In the circuit court the verdict was directed for defendant insurance company from Avhich an appeal was prosecuted to this court where the judgment Avas reversed and the cause remanded for a new trial. Harris v. Old American Insurance Co., 180 Ark. 1167, 21 S. W. (2d) 856.

On the trial anew, there Avas a verdict against the defendant, and on motion, a judgment was there rendered against it and against the surety, Loyd W. Judd. Said surety has prosecuted this appeal (from that judgment and here contends, ‘ ‘ First, that the court had no right to render a judgment of $400 against the appellant on a summary proceeding on May 12, 1920; second, that the appellant, IT. S. Harris, in 'Series 4, No. 1274, or his assignee, W. N. Wilson, should have exhausted their remedies under the law to enforce the judgment reversed by the Supreme Court, and had no legal right to resort to a summary judgment on the appeal bond from the municipal court to the circuit court.”

Neither of the contentions of the appellant can be sustained. The bond executed by the appellant was for a sum sufficient to secure the payment of the judgment and the costs, and there is no showing made that the judgment rendered against the original defendant and the surety was in excess of the sum nominated in the bond. By executing the appeal bond, appellant made himself a party to' the proceeding and was therefore constructively'present at every step of the litigation, and must be deemed to have had notice of all the orders made and must be held to have assented to' and have assumed all the obligations imposed by law upon a party signing as surety in such cases, one off which was, as provided by § -6531 of the Digest that where on the appeal the judgment should be against his principal, judgment also should be rendered against him as the surety on the appeal bond. The undertaking on the part of the surety was a continuing’ obligation extending throughout the entire process of the litigation, his liability becoming consummate upon final decision against his principal.

“A provision frequently required and inserted in appeal bonds is one stipulating for the payment of the judgment, if affirmed. In the absence of other considerations, it is obvious on general principles that it is the final decision determining* the rights of the parties which must be deemed to have been within the contemplation of the sureties, and they are liable for the payment of the judgment if finally affirmed although it was first reversed and then on a rehearing affirmed.” 2 R. C. L., p. 312, § 269.

This court, in the case of White v. Prigmore, 29 Ark. 208, quoted with approval from Davidson v. Farrell, 8 Minn. 258, where in construing' a statute similar to ours, that court said: “A law does nothing more than to provide the form and manner in which the agreement entered into by the surety shall be enforced. And the surety, in becoming a party to the bond, under the laiw as it then existed, assents to and adopts those provisions for the enforcement of the contract he has entered into with the obligee of the bond. * * * The law has declared what liability the surety assumes in signing such bond, to-wit: that a judgment against his principal shall also warrant a judgment against him. In effect, it is making the judgment against his principal conclusive evidence of the liability of both upon the bond; and the surety, becoming voluntarily a party to the bond under the law, must be held to have assented to assume all the obligations imposed by the law then in force upon a party holding that relation.

Therefore, there is nothing in the appellant’s contention that the appellee should be required to exhaust his remedy against the principal before moving for judgment against him. Sincel this case originated in a municipal court created by act No. 87 df the Acts of 1915, §§ 6513 and 6531 of the Digest apply to this proceeding under the expressed provision of act 87, supra; and appellant’s rights as against his principal are fully protected by § 6532 and § 6533 of the Digest. It follows that the decree of the court below was correct, and it is therefore affirmed.


text:
    United Order of Good Samaritans v. Roebuck.
    Opinion delivered November 17, 1930.

      George F. Earlje, for appellant.

      R. W. Robins, for appellee.
   Butler, J.

At the November, 1929, term of the Faulkner Circuit Court in a case pending there in which appellees were plaintiffs and appellant was the defendant, a judgment was entered against the appellant by default. This appeal is from an order made at the May, 1930, term refusing to-set aside the judgment theretofore rendered.

It is the contention of the appellant that the judgment of the lower court was void and should have been set a.side because it was not served with summons in the manner prescribed (by law. The appellant is a fraternal insurance society, and the service of process in suits against it is prescribed by § 6092 of the Digest. This section requires that the service of process shall be had 'by transmitting the summons to the Insurance Commissioner, who, in turn, shall transmit the same to the secretary of the insurance society. It is admitted that the summons in this case was not served in that manner, but it is contended by the appellees that the summons was delivered directly to the secretary by the deputy sheriff, and that therefore the insurance society had actual notice of the pendency of the suit.

Appellant on its part contended in the court 'below that its secretary had no knowledge of the pendency of the suit nor did any other responsible agent of it have such knowledge. 'This issue olf fact was determined by the trial court on conflicting testimony in favor of appellees. We have examined the testimony adduced, and are of the opinion that the decision of the court below on this question of fact was not against the preponderance of the testimony. Therefore, the question we have to decide is, did actual knowledge on the part of the appellant of the pendency of the suit preclude it from having the judgment set aside af ter the lapse olf the term at which it was rendered?

In the case of State v. Hill, 50 Ark. 458, 8 S. W. 401, Mr. Chief Justice Oockrill, speaking for the court, said: “One who is aggrieved by a .-judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make defense, in order to get relief in equity.” Since that decision it has been held consistently by this court that if one has knowledge that he has1 been sued in ample time to interpose a defense, he will not be permitted to reopen the case and set aside a judgment rendered by default.

The reason for the rule was stated in the late case of Stewart v. California Grape Juice Corporation, 181 Ark. 1140, 29 S. W. (2d) 1077 : “The reason for the rule is that if one wishes to invoke the jurisdiction of the court at all, he should do so seasonably, and not wait until the court had pronounced a judgment which would not have been rendered had the showing been made that no service had in fact been obtained.”

Our decisions on this question are numerous and uniform, a number .of which are cited in Stewart v. California Grape Juice Corporation, supra.

It follows that the judgment of the lower court must be affirmed, and it is so ordered.


author: Hart, C. J.,

text:
    Friedrich v. Southwestern Transportation Company.
    Opinion delivered November 24, 1930.

      W. J. Houghney, for appellant.

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

(after stating the facts). The shipment was an interstate one, and the law as declared by the Supreme Court of the United States must govern. St. L. S. F. Ry. Co. v. Burford, 180 Ark. 562, 22 S. W. (2d) 378; and Chesapeake & Ohio Railroad Co. v. Thompson Mfg. Co., 270 U. S. 416, 46 S. Ct. 318. The respective theories of the parties to the suit on the question of negligence were submitted to the jury upon the principles of law decided in the cases above cited.

No objection is urged as to the instructions on the question of negligence, but it is earnestly insisted by counsel for appellant that the court erred in instructing the jury on the measure of damages. The court gave to the jury four instructions. In two of them the respective theories of the parties on the question of negligence were submitted to the jury, and the remaining two instructions given by the court related to the measure of damages in the event of a recovery by the plaintiff. It is earnestly insisted that the judgment should be reversed because the court erred in giving instruction No. 4 on the measure of damages. We need not set out the instruction because it is apparent from the record that the plaintiff was not prejudiced by the giving of the instruction whether or not it was erroneous. The jury returned a verdict in favor of the defendant and thereby found that there was no negligence on the part of the defendant which would warrant a recovery by the plaintiff for any amount on account of the alleged negligence of the defendant. If the jury found that there was no negligence on the part of the defendant in the carriage of the goods, the plaintiff was not prejudiced by giving an erroneous instruction on the measure of damages. Therefore the judgment will be affirmed.


author: Hart, C. J.

text:
    Storey v. Johnson.
    Opinion delivered November 24, 1930.

      Ben B. Williamson, for appellant.

      W. P. Smith, and O. G. Blackford, for appellee.
   Hart, C. J.

Joe Storey prosecutes this appeal to reverse a judgment of the circuit court dismissing his complaint in an election contest proceeding. At the Democratic primary held on the 12th day of August, 1930, Joe Storey and Sam Johnson were opposing candidates for sheriff of Stone County, Arkansas. The returns from the primary election show that Storey received 544 votes and that Johnson received 1,233 votes. Johnson was duly declared the nominee of the Democratic party of Stone County, and a certificate of nomination was issued to him.

At the trial of the contest in the circuit court, it was shown that a list of poll taxpayers was filed by the collector with the county clerk, but that the correctness of the list was not authenticated by the affidavit of the collector as required by § 3740 of Crawford & Moses ’ Digest. The record also shows that, of the votes cast at said election, there were 26 votes with poll tax receipts attached to them. Of these 26 votes, twenty-one were cast for Storey and five for Johnson.

Under this state of the record the court properly decided in favor of Johnson and dismissed the contest of Storey. Under § 3740 of the Digest, the collector of the county is required to file with the county clerk a list of poll taxpayers of all persons who have up to and including the first Monday in July paid the poll tax assessed against them respectively, and the correctness of this list is required to be authenticated by the affidavit of the collector in person. One of the objects of the statute is to insure that the printed list which the section requires to be delivered to the election commissioners shall only contain the names of those duly qualified to vote. The printed list can only be made the basis of evidence to be used in an election contest where there is a substantial compliance with the statute, and we have held that there is no substantial compliance with the statute where the list of poll taxpayers is not authenticated by the collector in person. Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314 ; Cain v. McGregor, ante p. 633 ; and Tucker v. Meroney, ante p. 681.

It may be conceded that the 26 votes with poll tax receipts attached to them were legal votes, and still he has not made out his case as required by law. As we have already seen, the record shows that of the votes cast at the election for sheriff, Johnson received 1,233 votes and Storey only 524 votes. Prima facie it is presumed that every one who voted at an election is qualified to vote. The official returns are quasi records and import verity until overcome by affirmative proof that they do not speak the truth. Powell v. Holman, 50 Ark. 85, 6 S. W. 505 ; Letchworth v. Flinn, 108 Ark. 301, 157 S. W. 402 ; Webb v. Bowden, 124 Ark. 244, 187 S. W. 461 ; Cain v. McGregor, ante p. 633 ; and Tucker v. Meroney, ante p. 681.

In the application of this rule, there is a presumption that all the votes cast at the election were lawful until their verity was impeached by affirmative evidence. The list of poll taxpayers was not authenticated as required by statute; and for that reason, as above stated, it could not be used as a basis to show that any of the votes cast at the election were illegal. If it be conceded that all the twenty-six votes with the poll tax receipts attached to them were legal votes, and they all have been cast for the contestant, this would not change the result of the election. There would still be a majority of several hundred votes for the contestee. Therefore the circuit court properly held that he was entitled to receive the certificate of nomination and dismissed the plaintiff’s complaint. Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Barber v. State.
    Opinion delivered November 24, 1930.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Smith, J.

This appeal is from a judgment sentencing appellant to a term of twenty-one years in the penitentiary for murder in the second degree, committed by killing Maurice Osborne.

It was the theory of the State that appellant had conspired with Osborne’s wife to commit the homicide, and the revolting details of the crime are set out in the opinion of this court affirming the judgment of conviction against Mrs. Osborne, the wife of the deceased, for her participation in the crime. Osborne v. State, 181 Ark. 661, 27 S. W. (2d) 783.

Among other errors assigned for the reversal of the judgment is that the testimony is not sufficient to support the verdict. This assignment of error would be fully answered if the testimony in the former case'were set out, all of which was offered at the trial from which this appeal comes. There is, in addition to that testimony, the admission of appellant upon his own trial that he shot and killed Osborne, although he claimed that the killing was done in self-defense, a theory which the jury did not believe. There was also the additional testimony of Mrs. Osborne to the effect that appellant had previously stated that he intended to kill Osborne, and that he would do so “to get shed of him.”

No brief has been filed on behalf of appellant, but we have considered all of the errors assigned in the motion for a. new trial, none of which appears to be of sufficient importance to require extended discussion.

One of these errors is that it was error to offer in evidence the gun with which appellant admitted he had shot Osborne, for the reason that its condition was not the same as it was when found. This was a proper and a very damaging bit of evidence, as it tended to rebut the theory of self-defense. It furnished an explanation of the cut found in the back of deceased’s head, the inference being fair and reasonable that, after shooting deceased unce in the face and twice in the back, the gun had then been used as a club, and that it was wielded with such force for that purpose as to break the grin, it being found near the body. The witness who identified the gun detailed the only difference between the then condition of the gun and its condition at the time it was found, this being that some of the wooden pieces which were hanging on to the stock had fallen off. It is competent always to, offer in evidence the instrument used in causing death, where it is clearly identified, as was done here. •

Objection was made to the testimony of Mrs. Osborne to the effect that appellant had said the night before the killing, that he intended to kill deceased. When this objection is stated, it is answered, as its admissibility is obvious.

It is assigned as error that the court refused to permit W. B. Minard to state whether appellant’s reputation for being truthful was good or bad. The witness had testified that appellant’s reputation for being peaceful and law-abiding was good. But appellant had not then testified as a witness, and no attempt had been made to impeach his reputation or veracity. However, it appears that the court, after so ruling’, offered to permit the introduction of testimony on the question of appellant’s veracity.

Peter Fowler testified on behalf of appellant that appellant was a fine shot with a gun, the purpose of the testimony being, no doubt, to show that, had appellant desired to' kill Osborne, three shots would not have been required for that purpose. Upon the cross-examination of the witness he was asked: ‘ ‘ You don’t know what kind of shot J. P. (appellant) would make leveling down a man and the man coming in home with J. P. trying to kill him, do you?” to which question the witness answered: “No, sir.” We see no error in this question, as its effect was to inquire whether one’s markmanship might be affected by the character of his target and related to an opinion which the witness had expressed in response to a question propounded to him by appellant’s counsel. It was invited error, if error at all, but we think there could have been no prejudice, especially when the witness gave a negative answer to the question.

Appellant admitted the identity of the'gun, and that he had thrown it down on the floor after shooting Osborne, but he stated: “I don’t know how hard I threw it down.” He was then asked: “Did you throw it down on the floor hard enough to break it?” when the judge remarked, “He said he didn’t know how hard he threw it,” but when the question was repeated the court permitted appellant to answer it, after first excluding it, and he stated: “If it hits right it would break it. I judge it is according to the way it hit the floor. ’ ’

The only other assignment of error relates to the refusal of the court to require Mrs. Osborne to state why she and her husband went back to the toilet when he first entered the house. No attempt was made to explain the relevancy of this testimony, and we do not see how any prejudice could have resulted from its exclusion.

Upon a consideration of the whole case, we find no error in the record, and the judgment must be affirmed, and it is so ordered.


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    Davidson v. Sewer Improvement District.
    Opinion delivered November 24, 1930.

      B. R. Davidson and F. J. Ptah, for appellant.

      Pearson & Pearson, for appellee.
   Smith, J.

A sewer improvement district, designated as No. 1, was organized in the city of Fayetteville in 1907, and plaintiff has since continuously paid the annual assessment of benefits levied against his property lying therein. On January 5, 1925, another sewer improvement district was organized, which was designated as Annex No. 1 to Sewer Improvement District No. 1. This last district was adjacent to the first, and certain lots, including those of plaintiff, were in both districts.

'Betterments were assessed in the annex, and bonds were issued and. sold to the Mellroy Bank & Trust Company, of which, institution J. II. Mellroy, one of the commissioners, was president. The record discloses no objection or protest from any property owner to these proceedings. With the proceeds of the bonds so sold the improvement was constructed.

These bonds were sold to mature in ten years, but in October, 1928, proceedings were had, under the authority of act 126 of the Acts of 1927 (Acts of 1927, page 388), to refund them upon the basis of twenty years for final maturity. The district had then been in existence for three years, and plaintiff and other' property owners had paid certain installments of the assessed benefits. Section 5 of the act of 1927, su-pra, provides that any property owner may appeal from the refunding order, but that such appeal must be prosecuted within thirty days. No appeal was prosecuted from that order within that time at all. The refunding bonds were sold to the Mcllroy Bank & Trust Company. The resale being merely an exchange of the old bonds for the new ones, with certain adjustments of the difference according to payments already made.

■ A reassessment of benefits was ordered and was made. Plaintiff and certain other property owners appealed to the city council from this reassessment, and the hearing thereof was set for January 7, 19'29. On account of illness in his family, plaintiff was unable to attend the hearing and sent word to the city council asking a postponement in order that he might be heard, but the council refused to postpone the hearing and heard the protests in plaintiff’s absence and denied him any relief. No showing was made that the notice of this action required by § 5668, O. & M. Digest, was not given. No action was taken by plaintiff until May 3, 1929, when he filed a complaint in which he attacked the assessments on numerous grounds and prayed that their further collection be enjoined. There was a general finding against plaintiff, and his complaint was dismissed as being without equity, and he has appealed.

The validity .of the thirty days’ limitation on the right to attack betterment assessments provided for in § 5668, C. & M. Digest, has been frequently upheld. In the late case of Carney v. Walbe, 175 Ark. 746, 300 S. W. 413, it was said: “"Where the property owner delays until after the period of time prescribed by statute for a direct attack on the action of the council establishing the district and the assessment of benefits to the real property situated therein, a suit by the property owner to review the proceedings of the common council establishing the district or the board of assessors in assessing the benefits to the real property within the district is a collateral attack, and such proceedings can only be set aside when they appear on their face to be demonstrably erroneous.” 'See also Portis v. Ballard, 175 Ark. 834, 1 S. W. (2d) 1 ; Carnahan v. Fayetteville, 175 Ark. 405, 1 S. W. (2d) 10 ; Paving Dists. Nos. 2 and 3 of Blytheville v. Baker, 171 Ark. 692, 286 S. W. 945.

Certainly the action of the council, in refusing the postponement requested by plaintiff of the hearing of his protest against the assessment of his lots, does not make the assessment demonstrably erroneous. Conceding that the council abused its discretion in this respect, its jurisdiction was unaffected by that action. Plaintiff’s right of appeal remained, and his duty to prosecute that remedy was unaffected by the council’s action, even though the showing for a postponement was so strong that the refusal to grant it appears to us to have been arbitrary. It may be said, in this connection, that the statute provides that the appeal from the action of the board of assessors “shall be heard and disposed of at' the next regular meeting of the city council.” Section 5661, C. & M. Digest.

We are not prepared to hold that the sale of the refunding bonds to the Mcllroy 'Bank & Trust Company was in violation of § 5711, C. & M. Digest, which prohibits any member of a board of improvement from being interested, either directly or indirectly, in any contract made by the board for or on behalf of the improvement district. There was no allegation of fraud, or. that the district had not been fairly dealt with. The sale of the bonds was not made to Mcllroy, but to a corporation of which he was an officer. But, if it were held that the transaction was of questionable propriety, or even in violation of law, the validity of the assessment of benefits would not thereby be affected.

It appears that plaintiff owns lots which are assessed in both districts, but this fact alone would not render either assessment demonstrably erroneous. We have held that assessments of benefits may be enforced on the same property by more than one district provided the property receives benefits from each district. Roberts v. Street Imp. Dist., 156 Ark. 248, 245 S. W. 489 ; Harrison v. Abington, 140 Ark. 115, 215 S. W. 255.

In the case of Miller v. Seymour, 156 Ark. 273, 245 S. W. 811, it was held that property included in the original district may also be assessed in an annex to such original district if it receives benefits in both the original district and the annex.

There was no showing that the finding of the board of assessors that plaintiff’s property would receive benefits from the new as well as the old district was. demonstrably erroneous.

It was shown that a considerable part of the revenues of the annex was expended in the construction of a sewer main in the old district; this was done to connect with the main of that district and an outlet was thereby furnished, otherwise the annex district would have had to furnish its own disposal facilities. This action was authorized by the statute. Section'5735, C. & M. Digest. See Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166, 177 S. W. 888 ; Kraft v. Smothers, 103 Ark. 269, 146 S. W. 505.

It was shown that in the assessment of benefits against plaintiff’s property a portion only of certain of his lots were assessed, and it is insisted that no authority exists for the assessment of any portion of a lot less than the whole. We have held otherwise. In the case of Holt v. Ring, 177 Ark. 762, 9 S. W. (2d) 43, it was held: “It is next contended by appellant that the district is void because it divides lots. Certainly, in the formation of. an improvement district, the property owners forming the district can fix the boundaries, and it has been decided by this court that the boundary line may divide lots. If a lot is divided, a portion of it being within the district and another portion without, this does not invalidate" the district. But, in determining whether the petitioners have a majority in value, the value of a lot so divided cannot be considered. * * *”

It was not shown that the council considered the value of these lots in determining whether a majority in value of the property owners had petitioned for the improvement, but it is permissible to consider the betterments against these parts of lots to determine whether the cost of the improvement would exceed the limitation fixed by law and specified in the petition of the property owners for the construction of the improvement, and there was no showing that the cost of the improvement exceeded the betterments or that the law had been violated in this respect.

Certain other questions are argued, which, like those discussed, have been settled 'by numerous decisions adversely to plaintiff’s contention, and as the assessments do not appear, from the face of the record, to be demonstrably erroneous, and as the appeal has not been prosecuted within thirty days as provided by law, the decree of the court below must be affirmed, and it is so ordered.


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    Robeson v. Kempner.
    Opinion delivered November 24, 1930.

      G. B. Andrews, for appellant.

      Murphy & Wood, for appellee.
   Humphreys, J.

This is an appeal from a decree in the chancery court of Garland County cancelling a deed executed by appellant, Martha Bobeson, to appellant, J. E. Page, to blocks 13'2 to 139, inclusive, and blocks 173 to 191, inclusive," in the city of Hot Springs, Arkansas, quieting the title to certain lots in said blocks in appellees and others, and perpetually enjoining appellants from setting up claim or title thereto. The decrée was rendered toy the trial court upon the complaint of appellees for themselves and all other owners of lots in said blocks, and the oral and documentary testimony adduced by appellees, upon the failure and refusal of appellants to plead further after the court had overruled appellants’ motion to transfer the cause to the Federal court and their motion to make the complaint more definite and certain and the demurrer to the complaint. The oral and documentary testimony introduced on the trial of the cause does not appear in the transcript, so it must be presumed that the recital of facts contained in the decree was supported by and was in accordance with the weight of the evidence. The allegations of the complaint were, and the decree found and declared, that appellees and other owners of said lands had been in the actual possession thereof and had paid the taxes thereon for more than forty years; that appellants had no right or title therein but had conspired to and did continually harass and annoy the owners of all lots in said blocks by making false claims of title and by executing and placing of record false deeds and telling prospective buyers that appellant, Martha Bobeson, was the rightful owner of all of said land and interfering with the collection of rents from the tenants occupying said property.

Appellants contend for a reversal of the decree because the court overruled their motion to make the complaint more definite and certain by setting out their claim of title and overruling their demurrer to the complaint for failure to do so.

Our statutes do not require that plaintiffs in suits of this character be required to set out therein their chain of title. In ejectment suits the statutes make such requirements. In suits in equity to quiet titles allegations of ownership are sufficient upon which to base or found the actions.

Appellants also contend for a reversal of the decree because the court overruled their motion to transfer the cause to the Federal court. The petition for the removal, of the cause was properly overruled. The only ground alleged for removal was that gross fraud had been perpetrated on the United States Land Commissioner in obtaining a patent to the lands in question. The allegation was too general to constitute a ground for removal of the cause. It failed to allege the manner in which or when fraud was perpetrated. There are other grounds upon which the court properly overruled the petition for removal which are unnecessary to refer to or discuss.

No error appearing, the decree is affirmed.


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    Mullins v. State.
    Opinion delivered November 24, 1930.

      Brock Williams, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Pope 'County for selling intoxicating liquors on or about the 20th day of February, 1930, and as a punishment for the crime was adjudged to serve a term of one year in the State Penitentiary.

From the judgment of conviction an appeal has been prosecuted to this court.

Appellant assigns as reversible error the insufficiency of the evidence to support the verdict and judgment.

Harvey Morgan and Gfuy Poynter, witnesses for the State, each testified to having purchased whiskey from appellant early in the year 1930. Other witnesses for the State testified to circumstances tending to show that appellant was engaged in the liquor selling business and had been for some time. It developed during the cross-examination of Morgan and Poynter that each had been inmates of the State Hospital for Nervous Diseases. It is argued on this account that their testimony was incompetent, and, when excluded from consideration, there is no other substantial testimony to support the verdict and judgment. Appellant did not object to the testimony nor move to exclude same from the consideration of the jury for incompetency. It is too late on appeal to' raise that question. In view of the fact that their positive testimony stands in the record unobjected to, it is unnecessary to determine whether the other incriminating circumstances are, standing alone, sufficient to sustain the verdict and judgment.

Appellant also1 assigns as reversible error the giving of instruction number 9 by the trial court, which is as follows:

“I am stating further to the jury that the defendant in this case may be convicted on any sale of liquor that you may find him guilty of that occurred within three years before the filing of this indictment. And upon the particular contention of the State that he sold liquor on a certain date to Harvey Morgan the defendant on that occasion contends that he was not here, and that he relies upon what is termed in law as an alibi, that is, that he was not at the place where the witness contends the liquor was sold—that he was away from home. He has introduced his own testimony and the testimony of other witnesses have been heard by you, and it is for you to say upon that particular charge whether or not he was at home. The burden is upon the defendant to show the truthfulness of his alibi by a preponderance of the testimony. If, however, the evidence upon the question of his alibi in that particular case, taken together with all of the other evidence, facts and circumstances in the whole case, convinces you beyond a reasonable doubt, the defendant is entitled to the benefit of the reasonable doubt.”

It is argued that the last paragraph in the instruction conflicts with the paragraph just above it. We see no conflict in the two paragraphs. The two paragraphs, when read together, mean that, although the burden rests upon a defendant to show the truthfulness of an alibi by a preponderance of the testimony, yet it would be the duty of the jury to acquit him if the evidence on the question of the alibi, taken together with all the other evidence in the case, created in their minds a reasonable doubt as to the guilt of appellant. The paragraphs are entirely harmonious. Appellant cites the case of Wells v. State, 102 Ark. 627, 145 S. W. 531, in support of his contention that the two paragraphs are in conflict. In that case the court ruled that two' instructions were in conflict because one of them told the jury that unless they found from the evidence that appellant had established an alibi it was their duty to convict him, whereas the other said that, if the proof on that subject was sufficient to raise in the minds of the jury a reasonable doubt as to guilt, then it was their duty to acquit. The court did not tell the jury in the instant case, as it did in the Wells case, to convict appellant unless they found from the evidence that he had established an alibi. The effect of the Wells case was to approve the instruction given in the instant case which was objected to.

No error appearing, the judgment is affirmed.


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    Fullerton v. Storthz.
    Opinion delivered November 24, 1930.

      Jones, Hooker, Sullivan A Angert, for appellant.

      Ingram A Moher, Robinson, House A Moses and Harry E. Meek, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in permitting the introduction of parol testimony to contradict, vary or add to the terms of the written contract. Appellee insists, however, that he did not intend for his assignment or indorsement of the note to have any effect other than to evidence the fact of its payment, and asked a reformation thereof to express the true intention of the parties existing at the time it was made.

'The written contract between the Bradley Company and Storthz expressly provides, after the agreement for extending the time for the payment of the note, “and the party of the second part (Bradley Investment Company) hereby guarantees the payment of said note and interest to be paid-in the following manner,” setting out the amount and times for payment, and upon the payment of the note by the Bradley Investment Company, and recites: “The note for $35,203.12, referred to, shall be assigned by L. Storthz to the Bradley Investment Company when said payments on same are completed.” This provision is a guaranty of the payment of the note as provided in the terms of the writing by the Bradley Company, (Gay Oil Co. v. Roach, 93 Ark. 454, 125 S. W. 122, 27 L. R. A. (N. S.) 914, 137 Am. St. 95), whereby it was entitled to an assignment of the note. The parties making the guaranty contract knew when it was made that it would have to be performed by the Bradley Company, making the partial payments as provided, paying the note, and expressly contracted that, when it was paid in the manner provided, same “shall be assigned by L. Storthz to the Bradley Investment Company when said payments on same are completed. ’ ’

The appellant, assignee of the note and contract, understood from its terms that, upon completion of the payment of the amount of the note, it would be assigned by Storthz to him, and his letter remitting the amount due under the guaranty contract to complete the payment of the note directed “that you deliver it to Mr. L. Storthz, and, in turning it over, see that we receive the note in the amount of $35,203.12, and also that Storthz indorses or assigns the note in the proper legal manner necessary in order to protect the Bradley Investment Company.” This letter was read to Mr. Storthz upon delivery of the check for the last amount due under the contract of guaranty completing the payment of the note, which was demanded of him with such indorsement. He instructed the attorney to make the indorsement, “Pay to the Bradley Investment Company or order,” which was done and signed by Mr. Storthz. Regardless of what Storthz?s intention may have been in making such contract or guaranty to assign the note and of his indorsement thereon upon the completion of the payment of it in accordance with the contract of guaranty, he was bound by such contract and indorsement, and there being no ambiguity in the contract and no' doubt albout the effect of it, the parol evidence was inadmissible to contradict, vary or add to its terms by restricting the meaning of his act and indorsement to an acknowledgment on receipt for payment of the note. Bradley Gin Co. v. Machinery Co., 94 Ark. 130, 126 S. W. 81.

In addition, the guaranty contract was prepared by Mr. Storthz’s attorney, and if there were ambiguity about this written contract or necessity for construction thereof, all doubt must be resolved and the contract construed more strongly against the party who prepared it. Wisconsin Lumber Co. v. Fitzhugh, 151 Ark. 101, 235 S. W. 1001.

It is not questioned that under the terms of the written guaranty the note was to be assigned to the Brad" ley Company when the payments were completed in accordance with the contract of guaranty, nor is it questioned that the check completing the payment was delivered to Mr. Storthz, the holder of the note, after the letter of directions to the attorney, to whom it was sent for delivery, had been read to him expressly stating therein that it should be delivered only upon proper indorsement or assignment of the note by Storthz in the proper legal manner necessary to protect the Bradley Investment Company. The indorsement was made upon the request of Mr. Storthz, signed by him, and it is not complained that he was misled or imposed upon in this transaction, and he will not be heard to say that he is not bound thereby bécause he did not intend its legal effect. McDonald v. Thompson, 167 Ark. 338, 268 S. W. 602.

The facts about this transaction are undisputed, and the testimony attempting to show that Mr. Storthz was entitled to a reformation of the written contract and the indorsement made under the terms of the written contract, requiring it to be done, is not established by clear, unequivocal and convincing testimony as must be done to entitle the reformation of a written instrument on the ground of mistake. Wales Plantation v. Banks, 101 Ark. 461, 142 S. W. 828 ; Fagan v. Graves, 173 Ark. 482, 293 S. W. 712 ; Simpson v. Craig, 174 Ark. 1180, 298 S. W. 360.

Moreover, a misunderstanding of the legal effect of the terms of a contract prepared by his own attorney could only be regarded as a mistake of law for which written instruments are not reformed. Utermehle v. Norment, 197 U. S. 56, 25 S. Ct. 291 ; Rector v. Collins, 46 Ark. 167 ; Varner v. Turner, 83 Ark. 131, 102 S. W. 1111.

For is a contract reformed 'for mistake, unless it be clearly shown that the mistake was common to both parties, and that the contract as executed does not express the contract as understood by either of them. Varner v. Turner, supra.

The indorsement on the note was made in accordance with the contract for the assignment thereof upon dhe completion of the payments for the consideration in the guaranty contract, and the maker of the indorsement, long after the execution of such contract, after reading of the instructions therefor that he was expected to assign the note in the proper legal manner necessary in order to protect the Bradley Investment Company, should have refused to make the indorsement, if he did not so understand the contract, and, not having done so, when informed of the purpose for which it was made, he waived any mistake and is estopped from setting it up. Snell v. Insurance Co., 98 U. S. 85 ; 34 Cyc. 942 ; 23 R. C. L. 347. iSee also Hearin v. Union Saw Mill Co., 105 Ark. 455, 151 S. W. 1007.

The assignment of the note carried the vendor’s lien with it, entitling the assignee to the enforcement of such lien. Section 476, O. & M. Digest; Hankins v. Bank, 161 Ark. 221, 255 S. W. 916 ; Robertson v. American Investment Co., 170 Ark. 413, 279 S. W. 1008 ; Porter Lumber Co. v. Bonner, 172 Ark. 828, 290 S. W. 606.

The grantee in the timber deed was entitled to cut the timber upon 2,000 acres of the land sold upon the acceptance by Storthz of the guaranty contract and the extension of the time for the payment of the note until default in the payment of the next note to become due under the sales contract. This right not having been exercised, this timber remained subject to the enforcement of the vendor’s lien for the balance of the purchase money due, including necessarily the sum represented by the note transferred to appellant, and the court should have enforced the lien equally, for the whole amount against all the timber lands, the appellant being entitled to payment of his note along with the balance of the purchase money due upon the timber ratably with 'Storthz, the vendor and holder of such remaining indebtedness.

The court, erred in not so holding, and the decree-must, be reversed and the cause remanded with directions to enter a decree in accordance with this opinion and for any further necessary proceedings to enforce the payment of the vendor’s lien for the benefit of appellant and in satisfaction of his right to payment of the amount due him under the note as assigned ratably with Storthz, the vendor, in proportion to the respective interests of the parties. Iti is so ordered.

Smith and McIIaney, JJ., dissent.


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    McGuire v. Robertson.
    Opinion delivered November 24, 1930.

      Hay me, Paries $ Westfall, for appellant.

      L. B. 8 mead -and H. G. Wade, for appellee.
   Kirby, J.,

(after stating the facts). Appellants insist that the verdict is not supported by the testimony, while appellees contend that the verdict is demonstrably inaccurate, and that they are entitled to a judgment, notwithstanding the verdict, for the full amount of their claim.

It may be said that the testimony is in conflict, and certainly as to whether there was a new oral contract made for the last work and a final settlement for the first work done under the written contract, and same is sufficient to have supported a verdict for either party, the plaintiffs or defendants, under their contentions.

It is true that the verdict is not consistent, but that is no ground for reversal thereof in this court, it being supported by sufficient testimony. The appellants contend that there was only one contract, and that the final estimate of all work done, both at the first stations and after the removal north to the other stations, under the contract amounted to a certain designated sum, and that the payments made were more than the amount thereof —an overpayment, in fact, of a substantial amount. On the other hand, according to appellees’ contention, they were only paid in full for the amount of work first done, and they insist appellants were due them more than a $1,000 for the work done under the oral contract after the removal from the first stations and the completion of that contract and final payment made, and that the jury, having found in their favor, entitles them to a judgment, notwithstanding the verdict, for the whole amount.

There could be no judgment notwithstanding the verdict upon this state of the case within the meaning of the statute {% 6273, Cl & M. Digest), and the rules of this court thereon. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 49 ; Moore v. Rogers Wholesale Gro. Co., 177 Ark. 993, 8 S. W. (2d) 457 ; Oil Field's Corp. v. Cubage, 180 Ark. 1018, 24 S. W. (2d) 328.

The judgment is affirmed.