text:
    H. Rouw Company v. American Railway Express Company.
    Opinion delivered March 14, 1927.
    1. Carriers — perishable goods — liability.—In an action against an express company for damages to strawberries in transit, refusal of an instruction that, if the berries were in good condition when shipped, the law presumes that their damaged condition on arrival at destination was caused by defendant’s negligence held not error, in view of evidence that the berries were inherently infirm and defective, though apparently in good condition when delivered to defendant.
    2. Trial — repetition op instructions. — Refusal to give- a requested instruction fully covered by another» instruction that was given was not error.
    3. Carriers — liability for perishable goods. — In an action against an express company for damages to strawberries en route, instructions to find for defendant if the damage resulted from decay, waste or deterioration in quality, due to their inherent nature or infirmity, or if they were in a defective condition when loaded in the car, held not erroneous or abstract, in view of expert testimony that inspection at the destination revealed evidence of disease which might have caused deterioration in transit.
    4. Appeal and error — invited error. — Appellant cannot complain of an instruction submitting the same issue as -an instruction requested -by him.
    5. Appeal and error — specific objection to instruction. — That instructions in an action against an express company for damages to strawberries en route were incomplete in not placing the burden on defendant to show that the berries were inherently defective was not prejudicial, where no specific objection thereto was taken.
    6. Appeal and error — admission of evidence — harmless error.— The admission of incompetent evidence was harmless if the fact it tended to prove was otherwise established 'by competent evidence.
    7. Appeal and error — admission of evidence — harmless error. • — Where the real issue in a case was properly submitted the erroneous admission of testimony foreign to the issue was not prejudicial where it. had no tendency to mislead the jury.
    8. Evidence — expert testimony. — In an action- against an express company for damage to strawberries by furnishing a defective refrigerator car, testimony of an expert witness that the car furnished was one of 50 constructed exactly alike so as to produce proper refrigeration was admissible to prove that the car was properly constructed, though the witness did not examine it.
    9. Evidence — expert witness — competency.—In an action against an express company for damage to strawberries en route because of negligence because of failure to ice the car properly, a witness held qualified to testify as to sufficiency of the amount of ice furnished at various stations.
    Appeal from. Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      C. M. Wofford, for appellant.

      Warner, Hardin & Warner, for appellee.
   Humphreys, J.

Appellant instituted this suit against appellee on the 11th day of June, 1925, in the circuit court of Crawford County, to recover $1,280.87 damages on a car of strawberries delivered by it to appelleé. on May 6, 1925, at Hammond, La., for shipment to Longfellow Brothers, in Minneapolis, Minnesota, occasioned through the alleged negligence of appellee in furnishing a defective refrigerating car in which to ship the berries, or one that did not properly refrigerate, and in failing to properly ice said car, and to re-ice same en route.

Appellee filed an answer, specifically denying each allegation of negligence contained in the complaint.

The cause was submitted to a jury upon the pleadings, testimony adduced by the respective parties, and instructions of the court, which resulted in a verdict in favor of appellee, and a consequent judgment dismissing appellant’s complaint, from which is this appeal.

Appellant’s first contention for a reversal of the judgment is that the trial court erred in not giving its requested instruction No. 3, to which it claimed it was entitled, on the theory that the undisputed evidence revealed that the berries were in good condition and would grade U. S. No. 1, when loaded and ready for shipment, and that a large part of them were over-ripe, moldy and decayed when they arrived in Minneapolis, Minnesota, although reaching their destination on schedule time. Appellant’s requested instruction No. 3 is as follows

“3. You are instructed that, if you find from a preponderance of the evidence that the strawberries, at the time they were received by the defendant, were in a good, sound, merchantable condition, and that, upon their arrival in Minneapolis, Minn., they were found to be in a damaged condition, then the law presumes that the damaged condition was caused by the negligence of the defendant carrier, and the burden is upon the defendant to show by a preponderance of the evidence that such damaged condition was not the result of any negligence on its part.”

We cannot agree with appellant that the undisputed testimony showed that, the berries were in good condition at the time they were loaded and delivered to appellee. The most that can be said is that they were apparently in good condition, for there is much testimony in the record tending to show that they were inherently infirm and defective; but, even if they were in good condition at that time, it was not reversible error to refuse to give instruction No. 3, for instruction No. 2 tells the jury that, if they found the berries were delivered to appellee in good condition and that, upon arrival at their destination they were in bad condition, appellant made a prima facie case of negligence, and that the burden was then upon it to show that the damage did not result from its negligence. Although the two instructions were not couched in precisely the same words, they cannot be distinguished in meaning. It was not error to refuse to give instruction No. 3, as it was fully covered by instruction No. 2, which the court gave at the request of appellant.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instructions Nos. 6 and -13 requested by appellee. The instructions are as follows:

“6. The court charges you that the defendant is not responsible or liable for any loss which was caused by decay, waste or deterioration in quality of said strawberries, resulting’ from their inherent nature, infirmity and defect, if any. Therefore if you find from the evidence that the damage, if any, to the berries involved in this case resulted from decay, waste or deterioration in quality, occasioned by their inherent nature -or infirmity, if any, then your verdict should be for the defendant.”

‘ ‘ 13. The court charges you that, if you find from the evidence that the strawberries were in a defective condition when loaded in the car at Hammond, La., or that their inherent nature was such as to cause them to ripen prematurely, then the court charges you that the defendant is not-liable for damages, if any, resulting to the berries from such condition, if any.”

It is admitted that the instructions correctly announce the law as far as they go, but they are assailed because alleged to be abstract. They are not abstract, for a number of expert witnesses testified that an inspection of the berries at Minneapolis revealed evidences of diseases which might have caused the berries to deteriorate en route. In the next place, appellant requested and obtained an instruction submitting the very same issue to the jury, which instruction is its requested instruction No. 1.

A further objection is made to the instructions because they did not place the burden upon appellee to prove that the berries were inherently defective. The fact that the instructions were to some extent incomplete did not render them prejudicially erroneous. Appellant should have made an effort to have the omission supplied in the trial court. White v. McCracken, 60 Ark. 613, 31 S. W. 882.

Appellant’s next contention for a reversal of the judgment is that the court erred in permitting H. M. Green, division superintendent of appellee’s business on the Illinois Central and the Yazoo & Mississippi Yalley railroads, to testify respecting the general method employed by appellee in handling shipments of perishable products and to testify concerning the manner in which this shipment -was handled, from permanent records in his possession. It appears from the records that nine other witnesses who actually handled the shipment from the time the car was inspected at McCombs, Mississippi, ón May 4, preparatory to loading the berries, until its arrival in Minneapolis, Minnesota, on May 9, testified relative to the movement of the car, the manner in which it was handled, iced and re-iced, during the entire time same was en rotate. Their testimony tended to show that it was properly and carefully handled, iced and re-iced. No contention was- made that the testimony of these nine witnesses was incompetent. In view of this fact it is unnecessary to decide whether the testimony of Mr. Meeks was competent, for, even though incompetent, it was not prejudicial, under the well-settled rule of law that it does not constitute reversible error to admit incompetent evidence if tlie fact it tends to prove is otherwise established by competent evidence. Pace v. Crandell, 74 Ark. 417, 86. S. W. 812; Maxey v. State, 76 Ark. 276, 88 S. W. 2009; Waters-Pierce Oil Co. v. Burrows, 77 Ark. 74, 96 S. W. 336; Bispham v. Turner, 83 Ark. 381, 103 S. W. 1135; Hunt v. Davis, 98 Ark. 62, 135 S. W. 458; Payne v. Thurston, 148 Ark. 456, 230 S. W. 561.

Appellant’s next contention for a reversal of the judgment is that the court erroneously admitted the testimony of John ~W. Iiealey, the local agent of appellee at Minneapolis, relative to what took place in handling the car after its arrival there. This agent was permitted to testify to telephone conversations he had with Gr. C. Early, the representative of the O’Connell Brokerage Company, that negotiated the sale of the car of berries, and D. W. Longfellow, a member of the firm of Longfellow Brothers, the consignee of the shipment, relative to the contention between them of whether Longfellow Brothers purchased the car of berries at prevailing prices for good stock, or at $2.50 a crate, or merely to bid on the car when it arrived. It is argued that the testimony was hearsay and calculated to cause the jury to lose sight of the real issue in the case. The testimony was foreign to the issue, which was whether the strawberries were damaged en route through the negligence and carelessness of appellee in furnishing a defective car that would not refrigerate, or in failing' to properly ice and re-ice the car. The real issue in the case was submitted to the jury under proper instructions, and we are unable to say that testimony wholly foreign to the issue had a tendency to or did lead them astray. The admission of the testimony did not therefore constitute reversible error.

The last contention of appellant for a reversal of the .judgment is that the court erred in admitting the testimony of H. A. Simms, mechanical superintendent of car equipment for appellee, relative to the general construction of refrigerator cars of the series or type of the car used in transporting this shipment.

The alleged incompetency of the.testimony is based upon the fact that witness did not examine this particular car. One of the allegations of negligence was that appellee had furnished a defective car in which to transport the berries. IT. A. Simms qualified as an expert on the subject of refrigerator cars, after which he testified that the car in question was one of a series of fifty cars which were constructed exactly alike, and that the particular type or series was constructed so as to produce proper refrigeration. This evidence was admissible as tending to prove that the particular car was properly constructed and not defective. Witness further stated that the amount of ice furnished this car at the various icing stations was sufficient to produce and maintain proper refrigeration. His expert knowledge qualified him as a witness for that purpose. The trial court-did not err in admitting his testimony.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Harvey v. Marr.
    Opinion delivered March 14, 1927.
    1. Appeal and error — temporary order.- — -In a suit for partition of an oil and gas lease, an order of court in vacation directing the receiver to pay one-half of the cost of standardizing the well and operating the lease, made1 subject to adjustment of the equities in the final decree, was a mere temporary order from which an . appeal would not lie, where the court later heard the cause and rendered a decree disposing of the matters contained in the former order.
    2. Appeal and error — temporary order. — -An appeal will- not lie from a mere temporary order.
    S. Appeal and error — effect of supersedeas. — The effect of a supersedeas bond on appeal from a final decree was to supersede all temporary orders made during the pendency of the action.
    Appeal from Hnion Chancery Court, Second Division; George M. LeCroy, Chancellor;
    motion denied.

      Haynie, Paries (& Westfall, for appellant.
   Humphreys, J.

This suit was instituted in November, 1925, by appellee against appellant, in- the chancery court of Union County, to partition a commercial oil and gas lease covering the southwest quarter of the northwest quarter of the northeast quarter of section 17, township 16 south, range 15 west, in said county, which they owned half and half, and to hold appellant, E. J. Harvey, liable on a certain drilling contract between appellee and appellant, Bray-Hawthorne Company, incorporated, that they executed before said corporation sold its interest in said lease to E. J. Harvey.

Separate answers were filed by appellants in the month of December following, and by the American Trades and Savings Bank, to whom E. J. Harvey assigned his interest in said lease, denying liability under the drilling contract.

During the pendency of the suit a receiver was appointed by the chancellor to take charge of the alleged Harvey interest in the lease and collect one-half of all moneys due or to become due from sales of oil produced in the operation of the lease. On January 15, 1925, on application of appellee, and over the objection and exception' of appellants, the chancellor in vacation authorized and directed the receiver to join appellee in the employment of some one to drill a well on the lease to deep sand and to standardize same; also to pay one-half of the cost of standardizing the first well, and one-half of the expense in operating the lease. No appeal was prosecuted from the order. Pursuant to the order, the receiver and appellee entered into a contract for standardizing the well on the property, and for drilling a second well to the third, or deep, sand, which was successfully drilled and standardized.

On January 30, 1926, the court heard the cause upon the pleadings and testimony, resulting in a decree and partition in accordance with the interests of the several parties, and an order for the sale of the lease. The interest of E. J. Harvey was charged in part with $lS,000 in ■ favor of appellee for standardizing the first well and drilling and standardizing the second well. Appellants prayed and were' granted an appeal from the decree to this court, and filed a supersedeas bond, which was approved by the clerk of the chancery court of Union County.

After the execution and approval of the supersedeas bond, and prior to the expiration of the six months’’ period allowed appellants to perfect their appeal, appel-lee filed a transcript of the pleadings, orders and decree of this court, and made same a basis for a motion to direct the receiver to pay one-half of the cost of operating the lease, one-half of the cost of standardizing the first well, one-half the cost of drilling the second well to the third, or deep, sand, and standardizing same, and to direct the receiver to carry out the order of the chancellor made on the 15th day of January, 1925. The motion contains allegations to the effect that the receiver has collected one-half of the proceeds of the oil run from the lease and now has more than $10,000 in his hands, but has not complied with the order of January 15, 1925, because he is in doubt as to whether the supersedeas bond supersedes the final decree of date January 30,1925, only, or also supersedes the order of date January 15, 1925.

We have examined the order of date January 15, 1925, and find that it does not purport on its face to be a final judgment. It was made in vacation, over the objection of appellants, in conformity to appellee’s construction of the contract obligations of appellants to pay one-half the cost of standardizing the first well, one-half the cost of drilling the second well to deep sand and standardizing same, and one-half the cost of operating the lease. These matters are the main subjects of controversy in the cause, and were covered in the final decree, from which an appeal has been prosecuted to this court. The order stated that it was made subject to the adjustment of the equities between the parties to the action in the final decree. It was therefore a temporary order from which an appeal would not lie. The effect of the supersedeas bond was to supersede the final decree and all other orders made during the pendency of the action.

The motion is denied.


text:
    Applegate v. Luke.
    Opinion delivered March 14, 1927.
    1. Aliens — validity op alien land act. — Acts 1925, No. 249, known as the “Alien Land Act,” denying to aliens incapable of becoming citizens and not protected by treaty the right to acquire, possess, use, occupy or transfer real estate, held not in conflict with Const., art. 2, §§ 2, 3, 8, 22 and 29, guaranteeing equality, due process of law, and the right not to have property taken for public use without compensation.
    2. Aliens — validity of alien land act. — The Alien Land Act of 1925, No. 249, denying to aliens incapable of becoming citizens and not protected by treaty the right to acquire, possess, use and occupy or transfer real estate held in violation of Const., art 2, § 20, providing that “no distinction shall ever be made by law between resident aliens and citizens in regard to the possession, enjoyment or descent of property.”
    Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      H. W. Applegate, Attorney General, and John Tj. Carter, Assistant, for appellant.

      Breiuer <& Cracraft, for appellee.
   Humphreys, J.

Appellees, Lum Jung Luke, a resident alien, and E. M. Allen, a resident of Phillips County, Arkansas, instituted suit by injunction in the chancery court of said county against C. E. Yingling, prosecuting attorney for the First Judicial District, and H. W. Applegate, Attorney General of the State of Arkansas, from enforcing the alien land act of Arkansas against them, upon the ground that the act is unconstitutional and void.

A demurrer was filed to the complaint, and overruled by the court. Appellants refused to plead further, electing to stand upon their demurrer, whereupon the chancery court declared the act unconstitutional, and perpetually enjoined appellants from enforcing the act, from which is this appeal.

The constitutionality of act 249, Acts of the General Assembly of 1925, known as the alien land act, is the sole question presented by this appeal for determination. The gist of the act is to allow aliens subject to naturalization and those protected by treaty to acquire, possess, enjoy, use, cultivate, occupy, and transfer real estate, and to prevent all other aliens from doing so, under penalty that lands acquired in violation of the act shall escheat to the State, and the violators become guilty of a felony.

It is alleged in the complaint and admitted by the demurrer that Lum Jung Luke is, and has been, a resident of said county for twenty years, and of the United States since 1882, but ineligible to naturalization and citizenship under the laws of the United States, being a person of Chinese extraction; that E. M. Allen is a resident and citizen of said county, State and the United States; that appellants are, respectively, prosecuting attorney of the First Judicial District and Attorney General of the State of Arkansas; that E. M. Allen is the owner of certain real property in the town of Elaine, within the county of Phillips, State of Arkansas, and has made a tentative contract with the said Lum Jung Luke for the purchase of said property for a valuable consideration; that appellee, Lum Jung Luke, is the owner of considerable real estate, and is engaged extensively in the buying and selling of real estate for profit, and more particularly in the buying of property in the town of Elaine for the purpose of renting the premises to workmen engaged in sawmilling occupations in said toAvn; that appellants, C. E. Yingling and H. W. Applegate, are now threatening to institute escheat proceedings for the purpose of vesting the title to said property in the State of Arkansas, in pursuance of act 249 of the General Assembly of 1925, and. are threatening to prosecute the appellees and - cause an indictment to be lodged against them under the criminal portion of said act, if the transfer of said property is made.

Appellees contend that the act in question is in conflict with §§ 2, 3, 8, 20, 22 and 29 of article 2 of the Constitution of the State. We deem it unnecessary to set out §§ 2, 3, 8, 22 and 29 of article 2 of the Constitution, or to give space in this opinion to our reasons for holding that the act is not violative of these sections, further than to cite the following recent cases of the. Supreme Court of the United States construing statutes similar to the one in question, which effectively answer their arguments assailing the validity of the act as conflicting with these sections. Truax v. Corrigan, 257 U. S. 312, 42 S. Ct. 124; Terrace v. Thompson, 263 U. S. 197, 44 S. Ct. 15; Porterfield v. Webb, 263 U. S. 225, 44 S. Ct. 21; Frick v. Webb, 263 U. S. 326, 44 S. Ct. 115.

The act in question, however, seems to be in direct conflict with §'20, article 2, of the Constitution of the State. The section is as follows:

“No distinction shall ever be made by law between resident aliens and citizens in regard to the possession, enjoyment or descent of property.”

Distinguished counsel for appellants admit that the section is peculiar to our own Constitution. It seems that other Constitutions do not contain such a provision. The section contains few words, and is unambiguous. The manifest and only intent which can be extracted from the language is that all resident aliens in Arkansas, whether eligible to naturalization and citizenship under the laws of the United States, have the same right to acquire and enjoy the possession of property in this State, either by purchase or descent, that any natural citizen has.

No error appearing, the decree is affirmed.


author: Kirby, J.,

text:
    Richardson v. Reap.
    Opinion delivered March 14, 1927.
    1. Trial — instruction invading jury’s province. — In an action for damages for breaking- a plate g'lass window, an instruction that, if the glass was already cracked, and had a hole in it, and if plaintiff knew the hole was in the glass, and this hole contributed to its breaking when struck by defendant, and the glass would not have broken had the hole not been in it, then to let the glass stay there with the hole in it was contributory negligence on plaintiff’s part, held erroneous in not leaving to the jury to determine whether plaintiff was guilty of contributory negligence.
    2. Negligence — contributory negligence defined. — Contributory negligence is such act or omission of plaintiff amounting to a want of ordinary care as, concurring with a negligent act of defendant, is a proximate cause of the injury.
    Appeal from Bradley Circuit Court; Turner Butter, Judge;
    reversed.
    STATEMENT BY THE COURT."
    Appellant brought this suit for damages for breaking the north plate-glass front or display window in his store building, fronting west on-Street, in Warren, Arkansas, and occupied by Martin-Mosely Hardware & Furniture Company, as a tenant.
    The glass sets on a base 15 inches above the iron ledge which abuts on the sidewalk, the irbn ledge being about 15 inches wide and about the same length as the window.
    , C. W. McMahon, with Hugh and Besta Ashcraft, were standing on this iron ledge, in conversation, on the day of the injury or accident, when Jim Reap, the other appellee, came along the sidewalk and accosted McMahon.
    Besta Ashcraft stated that McMahon was standing in the middle. He was on McMahon’s right and Hugh was on his left when Mr. Reap walked up. He shook hands with Mr. Ashcraft, stuck out his left hand to Mr. McMahon, who said, “Don’t give me your left hand,” and pushed his hand down, and Reap gave him a push, causing McMahon to hunch back and break the glass. “We were standing on the ledge .in front of the glass, about 6 or 8 inches in front of the glass, and when he hunched back he broke the glass.” Mr. McMahon reached his hand up; Mr. Neap pushed him in the stomach, and that caused Mr. McMahon to hunch back and hit the glass. It popped right smart. Witnesses said all this was done in perfectly good humor.
    Hugh Ashcraft stated that Heap came along, good-naturedly and in a friendly way, shaking hands with us. He offered his left hand to McMahon, who said, “I don’t want your left hand,” and made a motion toward Reap, and he pushed Reap back, and McMahon hunched back far enough to ■ break the glass. McMahon stood there, and Reap walked off. McMahon went in the house and talked to Mosely.
    Reap stated that McMahon and two of the Ashcraft-boys were standing on the basement against the store when he came along the sidewalk, shaking hands and giving a left hand to McMahon, who said, “Don’t give me your left hand,” and put his hand here, and I pulled his hand down and the glass broke; that he did not strike him in the stomach. I was just shaking hands in a friendly way. Mosely came ont of the store and asked who broke the glass, and McMahon answered he didn’t know, and I stepped up and told him how it occurred, as I am telling it now. He stated that they were not playing or scuffling, but that he was just shaking hands in a friendly way, and that McMahon backed into the window when he got him by the hand when he took hold of him.
    McMahon stated that he was standing on the iron plate, about, 15 inches from the ground — the plate the glass stands on — when Mr. Reap came along, and he shook hands with Hugh Ashcraft with his right hand, “and reached for me with his left hand, and I said, ‘Don’t want your left hand,’ and,'when he took hold of me with his left hand, which was done that quick, and he turned me loose; all were in a good humor, touched the glass- very light, and didn’t intend to break it.” Didn’t think the glass would have been broken from the push he got from Mr. Reap.

      There was testimony showing that a small round hole had been broken in the glass before, about two or three feet up from the base, by its being struck with a rock, the glass being shivered around the hole on the inside.
    Another witness stated that he was present on the day the glass was broken; that two or three were standing on the base of this glass when Reap came up the sidewalk, shaking hands with first one and .another; about when he got in front of these gentlemen he shook hands with some one with his right hand and offered his left to another man, who said, “Don’t give me your left hand,” reached up and took Mr. Reap by the shoulder, and in some way this man stepped back into the glass and broke it. Didn’t know the man, but the one Mr. Reap offered his left hand to was the one that hit the window. It was all done in play. Mr. Reap pushed this man’s hand back, and it was done this way, just in a joking way.
    The testimony tended to show that the glass would not have been broken by .the action of McMahon in backing or pushing back against it, had it not been weakened by being broken before and shivered by the rock striking it.
    The court instructed the jury, giving, over appellant’s objection, number 5 as follows: “The court instructs the jury that, if you believe from the evidence that the glass window in question had previously had a hole broken through it by some means, and, on the occasion of the injury for which this suit is brought, that the glass cracked or broke from that point, and if the evidence shows that it did so crack, that the plaintiff knew the hole was in the glass, and that this hole being in the glass contributed to its breaking when struck by defendant, McMahon, and if you believe it would not have broken had the hole not been in it, then to let the glass stay there with the hole broken in it was contributory negligence on the part of plaintiff, and he cannot recover in this action.” And the jury returned a verdict for defendants, and from the judgment plaintiff brings this appeal.

      DuVal L. Purlins, for appellant.

      D. A. Bradham, for appellee.
   Kirby, J.,

(after stating the facts). The facts in the case are virtually undisputed, the testimony showing that the glass was cracked or broken by one of the young men, McMahon, pushing or hacking against it when another, Reap, who was coming along the sidewalk, shaking hands with his friends, pushed him or struck at him in a friendly way, after being told by McMahon he didn’t want his left hand, causing him „ to dodge or ‘ ‘ hunch back,” as one of the witnesses expressed it, striking the glass and breaking it.

The testimony also shows that a hole had been broken through the glass some time before, -about two feet up from the base, a small hole through which a tenpenny nail could be passed, and the glass shivered on the inside from its being struck with a rock, and that it was weakened by this former break to such an extent as caused it to break when McMahon backed against it, and that it would not have been broken from this occurrence if it had not been defective from this former break.

In defendant’s instruction numbered 5, complained of, it was attempted to submit the question of the owner’s contributory negligence in continuing to use this broken and defective window as a defense to this suit, but this instruction did not leave the question to the decision of the jury,'but told them if they found certain facts to be true that it was contributory negligence., and the plaintiff could not recover.

This court, in Fourche River Valley & I. T. Ry. Co. v. Tippett, 101 Ark. 386, defined contributory negligence as follows: “Contributory negligence '£in its legal signification is such an act of omission on part of plaintiff amounting to the want of ordinary care as, concurring or cooperating with a negligent act of the defendant, is a proximate cause or occasion of the injury complained of.’ International & G. N. Rd. Co. v. Schubert, 130 S. W. 709. This definition of contributory negligence has been often approved, and the doctrine frequently applied by this court.” 'Citing many cases.

The instruction was erroneous in not leaving it to the jury to determine whether the act or omission on the part of the plaintiff in continuing the use of the glass with a hole broken in it, under the circumstances, amounted to such want of ordinary care on his part as, concurring or cooperating with the negligence of the defendant, was the proximate cause or occasion of the injury complained of and contributory .negligence barring his recovery.

For the error in giving this instruction the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. .


text:
    Barnes v. Jeffus.
    Opinion delivered March 14, 1927.
    FIXTURES — removable houses. — Dwelling houses, necessary for employees operating a mill for the manufacture of timber, erected by a lessee with the landowner’s consent, and removable without injury to the land, held, to be personal property which the lessee had a right to remove.
    Appeal from Ouachita Chancery Court, Second Division ; J. W. Warren, Special Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    The question of the right of the lessee to remove buildings and sheds erected on a mill-site in manufacturing timber sold and conveyed to the manufacturer is involved in this appeal.
    The appellees sold and conveyed the timber on the lands to one G-arland Anthony, giving him ten years in which to remove it, and the free and uninterrupted possession thereof during the term for the purpose, with the right to cut out and construct roads, tramways and railroads over the land, with the further right to maintain logging camps while engaged in removing the timber, “and to use sufficient of said lands outside of inclosed and cultivated fields for site for mill and lumber yard.”
    Anthony conveyed the timber on the lands to Barnes by deed, with a like right to remove the timber within ten years from the -6th day of September, 1922, and the right to uninterrupted possession during the term, with free ingress and egress; the right to build trams and operate trams or railroads transporting the timber cut from the lands, and any other timber belonging to grantee, to bring suit for the possession thereof, and the right to use sufficient of said lands outside of inclosed and cultivated field for site for mill and lumber yard.
    Barnes, appellant, put úp a sawmill on the tract of land for manufacturing the timber, covered it with a shed, erected two small box-houses on blocks, with paper composition roof, one four and the other three rooms, for the use of the employees of the mill, and a mule-shed and some small outhouses. He removed the machinery from the mill before the end of the term and before using all the timber, and was engaged in tearing down the mill shed for removal when appellees brought this suit and procured an injunction preventing the removal of the improvements.
    Upon the hearing the testimony showed that appellant was tearing down the mill-shed and intended to remove the two small dwelling houses, which were constructed for use of the employees in operating the mill, and built with the intention of removing them upon the removal of the machinery.
    Appellees knew that the houses had been erected by appellant in the putting up and use of the sawmill for the manufacture of the timber, and consented thereto, having granted the right for the use'of the land as a mill-site upon the sale of the timber, but insisted that the dwellings became fixtures to which they were entitled upon removal of the mill.
    The lower court took this view, and rendered judgment accordingly, giving the appellant the right to move the sheds and small outbuildings, and permanently enjoined him from removal of the small,dwelling-houses, and from this judgment he appealed.

      G. W. Smith and B. II. Little, for appellant.

      B. K. Mason, for appellee.
   Kirby, J.,

(after stating the facts). The undisputed testimony shows that the small dwellings were of temporary construction, the kind necessarily and usually built on such mill-sites for the use of the employees in the operation of -the mills, and that the appellants intended, at the time of their construction, to remove them with the mill when the timber had been manufactured.

These small dwelling-houses were put upon blocks that were sitting on boards on the ground, and could be removed- without reducing them to raw material, and without injury to the land. Since they were also such houses as could be used and of the kind in general use for tenants on farms in that particular community, it could have been urged with more reason that they were fixtures and not removable had the contracts for sale of the timber not restricted the use of the lands for mill-site and lumber yard to those outside of inclosed and cultivated fields.

These houses were necessary for use of the employees in the construction and operation of the mill for the manufacture of the timber, and constructed with the consent of the owner of the land, and the intention on the part of the mill owner to remove them, with the machinery, when the timber had been manufactured, and fall within the classification of trade fixtures,'which the lessee or tenant had the right to remove. Field v. Morris, 95 Ark. 268, 129 S. W. 543, 11 R. C. L. 1082, §§ 25-26; 26 G: J. 701, § 87; 2 Underhill, Landlord & Tenant, 1247, § 736.

In said ^ 26, R. C. L., it is -stated: ‘‘G-enerallv it. is considered that, where the landowner consents to the placing of a building on his land by another, without an express agreement as to whether it shall become a part of tlie realty or remain personalty, an agreement will be implied that it is to continue personal property.”

There was no intention on the part of the mill owner in constructing' the houses, and nothing in the method of construction and materials used indicated an intention, to make a permanent accession to the land or irremovable fixtures, and they did not become such, but remained personal property.

The court erred in holding otherwise, and its judgment permanently enjoining and prohibiting appellant from removal of the said buildings is reversed, and the cause dismissed.


text:
    Maryland Casualty Company v. Rainwater.
    Opinion delivered March 14, 1927.
    1. BANKS AND BANKING! — INSOLVENCY—PREFERENCE OP STATE.— Where the State made a deposit in a ’bank which became insolvent, the State was not entitled to preferential payment <8: its claim over other creditors, the common-law rule of preference of the sovereign over the subjects not being applicable.
    2. States — effect of making deposit in bank. — The State, in making a deposit in a bank, does not exercise a governmental function, but merely engages in ordinary business, in which it is divested of sovereignty.
    S. States — preference on insolvency of depository. — Where the State has declared no intention by its statutes to claim priority of its deposits in insolvent bank over the rights of other creditors, , it will be held to have waived any right to such preference.
    4. Subrogation- — -claim of sureties against insolvent bank.— Sureties on depository bonds, having repaid the State for amounts for which an insolvent depository was liable, were subrogated to the State’s right of collection against the insolvent bank.
    5. Banks and banking — insolvency of depository. — Sureties on a bond covering the State’s deposits in an insolvent bank held not entitled to preference as against other creditors and depositors.
    Appeal from Franklin Chancery Court; J. V. Bour-Icmd, Chancellor;
    affirmed.

      STATEMENT BY THE COURT.
    The People’s Bank of Ozark, Arkansas, a duly designated State depository, on January 22 was insolvent and failed, its assets being taken over on January 22, 1926, by Loid Rainwater, the State Bank Commissioner, for administration and distribution under the laws providing therefor.
    This bank had applied to the Treasurer for a deposit of State funds, offering with its application a bond of State depository, dated June 1, 1925, with the Maryland Casualty Company as surety thereon, in the penal sum of $10,000, and a like ibond of the .¿Etna Casualty and Surety Company for $15,000. The applications were granted, and the State’s funds deposited in said bank accordingly.
    When it was taken over by the Bank Commissioner, the State of Arkansas had on deposit with said bank, as such State depository, the sum of $20,000 of money, all of which had been deposited in said failed bank since the execution and approval of the bonds mentioned.
    On March 15, 1926, the surety companies, on demand of tSe State, repaid the $20,000 to the State of Arkansas, in accordance with the terms of their bonds, prorating the loss in proportion to the amount of the respective bonds. The surety companies presented their claims to the Bank Commissioner against the estate of said bank for repayment of their losses, and the Commissioner refused to allow them as preferred claims, but allowed them as common claims for the amount paid.
    Suits were then brought in the Franklin Chancery Court by the bonding, companies, claiming, the State was entitled to priority and preference payment of its claim of $20,000 for money deposited, against all other depositors and creditors of the insolvent bank; that, by reason of the payment of said debt to the State of Arkansas by the surety companies, they had become subrogated to all the rights of the State as against the assets of said bank for the repayment of that amount, and are entitled to preference above all creditors and depositors of said bank for the amount so paid by them as sureties. The State’s contracts with the depository bank were made exhibits to the complaints.
    The appellees demurred separately to the complaints, and to all parts of each which sought allowance of the claims over and above the amount allowed by appellee, and to have said claims treated otherwise than as common claims.
    The court sustained the demurrers, after ordering the cases consolidated, and from this decree the appeal is prosecuted.

      R. R. Lynn and J. A. Sherrill, for appellant.

      Trieber <£ Lasley, for appellee.
   Kirby, J.,

(after stating the facts). The appellants contend that the State of Arkansas, by virtue of its sovereignty, is entitled, under the common law, to preference of its claims in this instance over and above the claims of all its citizens or subjects, and that the sureties herein, through the payment of the State’s claims and the right of subrogation resulting therefrom, are likewise entitled to the . same preference as the State of Arkansas had at the time of the payment of said claims.

The common law of England has been adopted by our State by statute, § 1432, Crawford & Moses’ Digest, as follows: “The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defect of the common law, made prior to the fourth year of James the First (that are applicable to our own form of government), -of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of the United States, or the Constitution and laws of this State, shall be the rule of decision in this State, unless altered or repealed by the General Assembly of this State.”

It will be seen from this statute that the State adopted nothing from the common law contrary to the genius of our institutions, but only that part of the common law, general in its nature, applicable to our own form of government, and not inconsistent with the Constitution and laws of the United States or the Constitution and laws of this State, providing that such should he the rule of decision in this State, unless altered or repealed by our Legislature.

It is true also that, under the common law of England, where the King’s title and that of the subject concur, or conflict, the King’s title was preferred. 'Broom’s Legal Maxims, 55. In Marshall v. New York, 254 U. S. 380, 41 Sup. Ct. 143, 65 L. ed. 315, Mr. Justice Brandéis, for the court, said: “At common law, the Crown of G-reat Britain, by virtue of a prerogative right, had priority over all subjects for the payment out of the debtor’s property of all debts due it. The priority was effective alike whether the property remained in the hands of the debtor or had been placed in possession of a third person or was in custodia legis. The priority could he defeated or postponed only through the passing of title to the debtor’© property absolutely or by way of lien, before the sovereign sought to enforce his right.”

Blackstone says the British Crown enjoyed an incidental prerogative which is only an exception in favor of the Crown to those general rules established for the rest of the community, among which was that the King’s debt shall be preferred before a debt to any of his subjects. I Black. Com. (Cooley’s 4th ed.) 240.

Conceding that the State succeeded to whatever prerogative rights the King of England had and exercised under the common law as adopted by it, it has never attempted nor shown any disposition to exercise any such prerogative as claimed here since its organization. It is true, as contended by appellant, that the State does exercise a prerogative right, not to be made a defendant in any of her courts, but this is specifically declared in her Constitution, the grant of power from the people, article 5, § 20.

It is also true that no law has been enacted abrogating or repealing the common law relating to such prerogative rights, but it has been the policy and practice of tlie State, in the exercise of such prerogative rights, to declare them in her laws and not insist npon having succeeded to them as against her citizens under the common law.

There is no doubt hut that the State could have declared, in the law authorizing the establishment of depositories and requiring security for her moneys deposited therein, that she should also be entitled to a preference and priority of payment of her claims for money so- deposited against all other depositors and creditors of such bank depositories. No such right was declared or reserved, however, under the terms of the depository law, it being the apparent intention to have the State rely only upon the security and ability of the banking institution and the solvency of its sureties for the repayment of its money deposited therein according to the law. The State, in making such deposit, was 'not exercising a governmental function, but only engaged in ordinary business. Its attitude with regard to the transaction was just such as might have been assumed by any individual or private corporation,- which might have chosen to lend its money to the bank; and, as said in Calla'ivay v. Gos&art, 45 Ark. 88: “When -a State steps down into the arena of -common business' in concert or in competition with her citizens, she goes divested of her sovereignty.” The State cannot presume, under such conditions, to exercise the ancient prerogative of the King and claim a preference in the repayment of her moneys loaned to, or deposited in, the failed bank, as against all other depositors and creditors thereof, having made no intimation or declared no intention in her laws relating thereto that such would be done. She will be held to have waived or abandoned such prerogative right, which cannot be exercised under existing laws.

The sureties on the bonds of the depository bank having repaid the State the amounts for which the bank was liable, and they were bound as sureties, are, of course, subrogated to the State’s right for collection against the failed institution, but are not entitled to any preference as against the other depositors and creditors under existing laws, providing for none.

No error was committed in sustaining the demurrers and dismissing the complaints, and the decree is affirmed.


author: McHaNey, J.

text:
    Phelps v. Davis.
    Opinion delivered March 14, 1927.
    1. Partnership — loan by partner — interest.—Where a partner, with consent of a copartner, made a loan to the firm, having before loaned the firm- money and collected interest thereon, an agreement of the partnership to pay the legal rate of interest would be implied, though no express agreement regarding interest was entered into.
    2. Partnership — liability on loan by partner. — A partnership may be liable for interest to a partner who makes advances to or for the account of the firm where there is a special contract to that effect or where, from the facts and circumstances surrounding the case, it may reasonably be implied that the firm was to pay interest for the advances.
    Appeal from White Chancery Court; John E. Mar-tineau, Chancellor;
    affirmed.

      Brundid'ge & Neelly, for appellant.

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

Appellants and appellee were' partners, engaged in the mercantile business in the town of El Paso, White. County, Arkansas, up until the 12th day of February, 1923, when the stock of merchandise on hand was divided and the partnership mutually dissolved. The partnership originally was composed of J. A. Phelps, Sr., and appellee, -W. P. Davis, and continued in this way until the death of J. A. Phelps, Sr., in 1908, when J. A. Phelps, Jr., and' two of the other heirs of the senior Phelps took charge of their father’s interest and continued the partnership with Davis until its dissolution, as aforesaid, with the appellee owning one-half interest and the appellants owning the other one-half interest. They could not divide the notes. accounts, land and other assets that had been accumu-" latéd by the partnership, and this suit was brought by the appellee for the purpose of partitioning same. After the partition suit had been filed, the appellee amended his complaint, alleging that the partnership was indebted to him on four promissory notes executed by the partnership to him for money that- he had loaned the firm in the operation of its business. It is not disputed that the partnership owes the appellee the amount of these notes. The chancellor entered .a decree ordering the assets of the partnership sold, appointed a commissioner to make the sale, and directed him to pay out of the proceeds of the sale to the appellee the sum of $2,857.51, which included the principál amount of said notes, with interest from their date until the date of the decree at six per cent, per annum, together with interest thereon from the date of the decree until paid- at the same rate. From the decree allowing interest on said notes comes this appeal.

As stated by appellants in their brief: ‘ ‘ The only question to be determined in this case is whether or not the appellee is entitled to charge interest upon advances made to the firm by himself.” Appellants contend that these advances made by appellee, as represented by said notes, were to the capital fund or account of the firm, and that therefore, in the absence of an express agreement by the partnership to pay interest on same, the firm is not liable for interest, and that the appellee would have to look to the profits of the partnership business to get a return on his investment, rather than to interest for the use of his money.

Appellee admits th.at a partner is not entitled to interest on capital which he contributes to the firm, although his contributions to the capital may be greatly in excess of that of his copartners, unless his copartners have agreed that he may have interest on such excess advancements. But they say that the advances made by appellee in this case were not to the capital account of the firm, but were loans to the partnership, represented .by the notes of the partnership, upon which interest may be collected.

We are of the opinion that appellee is correct in this contention. Appellant, J. A. Phelps, and appellee both testified that the money loaned to the firm by appel-lee was used by the firm to pay its debts, and that they discussed the proposition of borrowing money from the bank, and that they were unable to obtain money from the banks, and that appellee loaned money to the firm for this purpose.

It is shown by the testimony that appellee had loaned the firm money on previous occasions and had collected interest therefor, and, while it does not appear that there was any express agreement between them that interest was to be paid on these particular loans, and no particular rate of interest was agreed upon, we think there was an implied agreement on the part of the firm to pay the legal rate of interest, from the fact that the loan- was actually made with the knowledge and consent of the appellant, J. A. Phelps, Jr.

The correct rule on this subject was laid down in the case of Rodgers v. Clement, 162 N. Y. 422, 56 N. E. 901, 75 A. S. R. 342, as follows: “The appeal presents'but a single question, and that is the right of the plaintiff to be credited with an item of $5,997.66, winch represents the interest upon certain moneys advanced by him for the use of the firm while it was engaged in the execution of a contract for the construction of a railroad. The referee refused to allow this item, and was sustained in this ruling by the court below on appeal. The counsel seem to be in ■substantial accord with respect to the principles of law applicable to such a question. If the moneys advanced by the plaintiff to the firm were contributions of capital or additions to plaintiff’s capital, then he was not entitled to interest on the same, since he must rely upon the profits of the business to compensate him for the investment, unless there was a special agreement between the partners that interest should be allowed. ('Citing cases).

“But, on the other hand, if the moneys so paid or advanced by the plaintiff for the use of the firm were in fact loans, and the plaintiff, as to such advances, was a creditor of the firm, he stands upon the same footing as any other creditor with respect to the right to be allowed interest upon the accounting. A partner may loan money to the firm of which he is a member, and, when he does, his right to interest is to be determined in the same way as that of any other creditor. In such cases the general rule is to allow interest upon the advances, although there was no express agreement by the firm to pay it, in the absence of some agreement to the contrary, express or implied. The right to interest or an agreement to pay or allow it is to be implied in such cases without any express promise, as in like transactions between parties holding no partnership relations to each other; ’ ’ (citing a long list of -cases).

As was said by the authors of L. R. A. in a case-note to Kilworth v. Ice, 84 Kan. 458, 114 P. 857, and reported in 35 L. R. A. (N. S.) p. 223: “The apparent conflict between the decisions as to the allowance of interest to a partner on his advances is due to a failure on the part of some of the courts to state whether they refer to advances of money to be employed as capital, or to advances by way of loan. In the one case, as the partner is considered as looking to the profits for compensation, there is no basis upon which an agreement on part of the firm to pay interest may be implied; while, on the other hand, if it is shown that the advance was not intended as other than a loan, such an agreement may be implied from mercantile' usage. There is a clear distinction between advances made by way of loans beyond the capital, and additional-capital. The intention may be shown to give interest on the footing of debtor and creditor, where otherwise there would be no charge’between partner and partner. Buckingham v. Ludlum, 29 N. J. Eq. 345.”

We therefore adopt the rule that a partnership may be liable for interest to a partner who makes advances to or for the account of the firm, where there is a special contract to that effect, or where, from the facts and circumstances surrounding the case, it may reasonably be implied that the firm was to pay interest for the advances.

The decree of the chancery court allowing six per cent, interest in this case was right, and it is therefore affirmed.


author: McHakey, J.

text:
    Ives v. Anderson Engine & Foundry Company.
    Opinion delivered March 14, 1927.
    1. APPEAL AND ERROR — PRESUMPTION PROM DIRECTED VERDICT. — On appeal from a directed verdict for plaintiff, the evidence must be given its strongest probative force in favor of the defendants.
    2. Sales — warranty—jury question. — In an action on notes for the purchase price of an engine, whether plaintiff warranted the engine to be suitable for defendant’^ purposes and capable of raising a sufficient quantity of water to irrigate defendant’s land held for the jury.
    3. Sales — express warranty. — To constitute an express, warranty, it is not necessary that the word “warrant” be used, but it may be based on the statements of the seller as to the quantity or condition of the chattel sold, on which the buyer relies and on which the seller intended that he should rely.
    4. ' Sales — express warranty. — Statements of the seller’s agent that an engine sold had ample strength and power to pull the well successfully, that it was in good condition and would give satisfaction, amounted to an express warranty.
    5. Sales — waiver of breach. — A breach of warranty in the sale of an oil engine is not waived by an offer of the buyer to pay part of the purchase money, without complaining of the unsatisfactory condition of the engine purchased.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    reversed.

      John W. Moncrief, for appellant.

      M. F. Elms, for appellee.
   McHakey, J.

This is an action by appellee to recover upon two promissory notes in the sum of $1,314 each, both dated March 20, 1923, with interest from date at eight per cent, per annum, on the first of which payment was indorsed in the sum of $296.36, $96.36 of which was for interest and $200 on the principal. One of tlie notes became due nine months and the other twenty-óne months after date. These notes were given for the purchase price of a sixty horse-power Anderson oil engine, title to which was retained in the seller, and were given to the Anderson Foundry & Machine Company, the name of which was thereafter changed to the Anderson Engine & Foundry Company. Appellants defended on the ground that they were induced to purchase the engine on false and fraudulent representations and statements to the appellants that said engine was a good, efficient, sound engine, and was capable of and would operate a certain pump of appellants for watering rice grown by them, and by these representations they were induced to purchase the engine and execute the notes sued on, whereas the engine was not as represented, and would not do the work claimed for it; that appellee knew they were purchasing said engine for the purpose of operating a pump on their rice farm, the well and pump of which were examined by the appellee, and that appellee assured them that the engine was capable of pumping the water to the quantity desired; that these representations were false, and known by the appellee to be false, and that, relying upon said representations, they purchased same; that, if said engine had been as represented, it would have given good service and efficiently operated said pump and well for eight or ten years; that it proved worthless, inefficient, unsound, and that, as a result, they lost their rice crop by failure of the engine to pump water sufficient to irrigate their crops,, and that they had been damaged by reason of the loss of crop in excess of the purchase price of the engine; that the vendor warranted said engine to be capable, sound and efficient to operate said pump, which warranty was breached by. the failure of- the engine to operate efficiently. They made their answer a cross-complaint against appellee, and denied tha't they were indebted to it in any sum.

Appellee replied to the cross-complaint, in which it denied that it made any false or fraudulent representations or statements concerning said engine, and denied that it warranted or guaranteed same as alleged, and states that the engine sold was formerly the property of E. L. Ives, and that E. L. Ives sold said engine to the appellants, and that the notes from appellants were taken to appellee for the reason that E. L. Ives was indebted to it in a like snm on the purchase price of said engine.

On the issues thus joined, the parties went to trial. Ealph Wilson testified, for appellants, that he helped appellant, B. B. Ives, in his rice crop in 1923, and that he heard the conversation and trade between appellant, B. B. Ives, and the agent of the appellee when he purchased the engine; that Mr. Ives did not know anything about oil engines, but that he inquired about the efficiency of the engine and what it would do; that Mr. Miller, the pumper, who was familiar with the well and amount of water required, gave them the dimensions of the well and the amount of water it was pumping, and that the agent of appellee stated the engine was capable of pulling the well, and that it had plenty of power, was in first-class condition, and would properly operate the well, and, after that, Mr. Ives bought the engine. In 1923 two capable men, recommended to Ives by the agent of appellee as being capable, operated the engine; that it would not operate very well, but continually got hot; that Mr. Ives knew that the engine-had been previously operated up north of Stuttgart, and that the company had remodeled the engine. After Mr. Miller had told him the depth of the well, the capacity of it, how much water it would throw if it had proper power, the agent said the engine would pull it and throw the water with ease. He further testified that they had trouble with the engine in the 1923 season; did not have sufficient power, and sufficient water could not be put through it to keep it cool, and would overheat; that perhaps it would run ten days without giving any trouble, and that, if the engine had been as represented, they would have had no trouble with it; that it was worse in 1924 crop than in 1923; continued to grow worse; two of the engine heads burst in 1924, which they had welded, and they would crack over again, and they would try to remedy it by new heads. They got the best of oils, which were recommended by appellee, and had experts to look at it, and it was not due to the oil that the engine would get too hot and was overloaded; that they could not finish the pumping season in 1924 with that engine; that, when the engine got hot, the port-holes would close up with carbon and would show red-hot, and they would have to use an excessive amount of oil, and about half the time the engine would not pull itself and they would have to stop and put in oil. The engine caught fire and burned up, and after that they did not use it any more. . He was asked this question: “Q. Mr. Wilson, if this engine had done the work that they told you it would do, would it have overloaded? A. No sir.” He stated that he had experience in these matters, and that the average life of an oil engine ranges from eight to ten years; that B. L. Ives had used the engine only part of one season before B. B. Ives bought it from the machine company.

On cross-examination he admitted writing, as agent for appellant, B. B. Ives, the following two letters:

“Jlan. 8, 1924.

“Anderson Foundry & Machine Co.

“Mr. Winfield T. Durbin.

“Dear sir: We told the hanker here to inform you as to our condition, hut it seems that he did not do it. We are not in the condition that we would like to he. It is impossible for us to pay the full amount this, year, although we can pay the interest and $200 on the note. If this will he satisfactory with you, let us know,' and we will make this remittance at once. We did not get to put in the rice we expected to on account of the high water we are bothered with here, and we didn’t make a fortune at it. Hoping this will meet with your approval, I remain, Yours truly. ’ ’

“1/18/24.

“Anderson Foundry & Machine Co.

“Anderson, Indiana.

“Gentlemen: In reply to your letter of the 16th inst., which was in reply to one written by me on the 9th, concerning the payment of a note you hold against me for $1,314, will say that it is out of the question for me to pay or make the payments as you have set out in your' letter. The offer I made you, viz., immediate payment of $200 and interest, was made with the ability to make same, this I can do, hut to do more it is a question where I can do so. I am a member of the Arkansas Bice Growers’ Cooperative Association, and I am bound under the contract with them to ship or deliver my rice to them to mill and sell. I have received an advance payment thereon, the balance will be paid at times as the association accumulates funds to distribute to the members of the association. I am unable to .tell when these payments will be made, or how much I will' receive when the payments are made, therefore I am at sea as to the possibility of me making a payment greater than I have named. It might be possible that I will be able when I receive the payments on my rice to pay one-half, with interest, but the. whole is impossible.”

Appellant, B. B. Ives, testified, • substantially corroborating Mr. Wilson, and further, that he told appellee that he wanted to water 200 acres or more, and that the agent told him the engine was “of ample strength and power to pull the well successfully, and said it would do it, and he said the engine was in good condition, just as good as new, and would operate that well successfully and give satisfaction.” Agent also said he would guarantee it; that he believed what the agent told him, and' bought it on his recommendation; that he thought the agent knew what he was talking about; that he had seen the engine up near Stuttgart, but that he had'not paid any attention to it, and that he didn’t know anything about oil engines at the time, and had had no experience with them. “Q. What finally became of that engine? A. It burned.”

He testified that it did not give satisfaction in 1923, and did not in 1924; that fie tried to water 190 acres with it in 1924, but that it would not do it; that the agent of the appellee was there after the engine burned, and stated that he did not expect it to burn down, but did not expect'it to go through the 1924 crop.

At this point the court took charge of the witness and conducted the examination, and the witness stated that the engine was not satisfactory in 1923, and that they wrote the appellee about the trouble with the engine, its getting hot, and they sent a blue-print for them to use in repairing the engine, but that they couldn’t do it as they wanted it done. He thought they wanted them to use the water over again through the engine, and they dug a pool, 'filled it up with water, and then ran the water through the engine and back into the pool again; that he directed his son-in-law, Mr. Wilson, to write the letters and .offer to make a payment of $200 on the notes, and that, prior to the installation of the oil engine, they had a sixty-horse power steam boiler and a forty-horse power engine which would throw 1,200 gallons.

The court then stated that the letters of January, 1924, constituted a complete ratification of the contract made in March, 1923, and that these letters precluded the raising of any objection to any defects that they knew existed at that time, and he thereupon directed the jury to return a verdict for the appellee on the two notes sued on. Thereupon counsel for appellants asked permission of the court to introduce further evidence, and stated that they offered to prove by the witnesses, B. B. Ives and Wilson, that the appellee advised appellants, in the fall of 1923, that, by running more water through the engine, the trouble would not occur, but would be eliminated; and that defendants relied and depended on that, and were expecting to follow those instructions in the spring of 1924 when the season opened, which ordinarily would be in May or June, and that they would follow these instructions, use the quantity of water suggested and indicated by appellee, which did not eliminate or reduce, the trouble at all, but grew worse and increased until the engine finally burned. Also, that appellants had tendered the return of the engine to plaintiff. The court refused the proffered testimony, and the jury, as directed, returned a verdict for appellee for the amount of the notes sued on, with interest, from which comes this appeal.

We think the court erred both in directing a verdict for the appellee and in refusing to permit counsel to proceed with his case as suggested. Giving the evidence* as set out above, its strongest probative force in favor of appellants, as we are bound to do under numerous decisions of this court, we think it was a question for the jury to determine whether the appellee guaranteed or warranted the engine to be.suitable for appellant’s purposes, and that it would perform the work of pumping the well with a sufficient quantity of water to water the land appellant B. B. Ives told him he wanted to water.

To constitute an express warranty it is not necessary that the word “warrant” be used, but may be based on the statements of the seller as to the quality or condition of the chattel he is selling. As stated by this court in the case of Warren v. Granger, 151 Ark. 457, 236 S. W. 608: “It is true Granger did not testify that Warren had used the term ‘warrant’ in stating the quality of the icebox, but it was not essential that he should have done so to establish a warranty, because such was the purport and necessary effect of what he did say.”

The court then quoted with approval from 24 R. C. L. (Sales) § 437, as follows: “To constitute an express warranty the term ‘warrant’ need not be used; no technical set of words are required, and it may be inferred from the affirmation of a fact which induces the purchase and on which the buyer relies and on which the seller intended that he should do so, but it has been said that the words used must be tantamount to a warranty, and not dubious or equivocal.”

Appellant, Ives, testified that the agent of appellee said that the engine had “ample strength and power to pull the well successfully, and said it would do it, and he said that the engine was in good condition, just as good as new, and would operate that well successfully •and give satisfaction.” Again he testified that the agent said he would guarantee it to operate it. “,Q. He guaranteed it would do these things 1 'A. Yes sir.” Admitting this testimony to be true, which wé must do for the purpose of this decision, this amounted to an express warranty by the seller of the engine to do the work the witness testified that he said it would do.

But it is contended by appellee that, since the appellant, B. B. Ives, had used the engine for the 1923 crop and found it unsatisfactory, and that, in January, 1924, he wrote the two letters above set out, and later, in February, made a payment of $200 and interest thereon without making any complaint in these letters about the unsatisfactory condition of the engine, this amounted to a ratification of the purchase and a waiver of any right to insist on a breach of warranty thereafter. But this is not correct. The most that can be said of this is that it is a reaffirmance of the sale after the breach of the warranty, which does' not constitute a waiver of the breach. In Parrett Tractor Co. v. Brownfiel, 149 Ark. 569, 233 S. W. 707, this court said: “The substance of the declaration contained in this instruction is that an unconditional promise to pay the balance of the purchase price, with the knowledge of the breach of the warranty, constitutes a waiver of the breach. This is but another way of saying that a reaffirmance of the sale after the breach of the warranty constitutes a waiver. Such is not the law. This court held in the case of Plant v. Condit, 22 Ark. 454, that, where there is a breach of an express warranty, the vendee may rescind the contract, or 'he may affirm the contract, keep the property, and, when sued for the price, set up the false warranty by way of recoupment,” Weed v. Dyer, 53 Ark. 155, 13 S. W. 592.

In the case of Courtesy Flour Company v. Westbrook, 146 Ark. 17, 225 S. W. 3, we said: “The law on the subject is that, where chattels are purchased under express warranty as to quality, the purchaser may rescind on discovering the inferior quality of the article sold, but is not bound to do so, and, on the contrary, may retain the article purchased and sue on the warranty, or recoup the damages when sued for the price.”

Furthermore, appellants’ counsel offered to prove that, in the fall of 1923, the appellee advised appellants that, by doing-certain things, the trouble with the engine would lie eliminated, and appellants relied and depended on that, and were expecting to follow those instructions in the spring of 1924, when the season opened.

We are therefore of the opinion that the case, as far as appellants were permitted by the court to make it out, was one for the jury, and that appellants should have been permitted to develop their case. For the error in directing a verdict for the appellee the judgment will be reversed, and the cause remanded for a new trial.


author: Hart, C. J.,

text:
    Gower v. Johnson.
    Opinion delivered March 28, 1927.
    1. Elections — primary election contest. — Under the primary election law (Crawford & Moses’ Dig., § 3746 et seq.), a contest is a statutory proceeding which is intended to furnish contestant with a summary remedy and to secure a speedy trial of the issues.
    2. Elections — contest of primary election — time.—The requirement in the primary election law that proceedings to contest a nomination he filed within 10 days after certification of the nomination complained of (Crawford & Moses’ Dig., § 3746 et seq.) is mandatory and jurisdictional.
    3. Elections — contest of primary election — complaint.-—In a primary election contest a complaint alleging that both plaintiff and defendant received votes in the election for the office of sheriff, that defendant did not receive a majority of the legal votes, that plaintiff is the legal nominee, without alleging the grounds of the contest or that the plaintiff received either a plurality or a majority of the votes, held insufficient.
    4. Elections — -primary election — time of filing contest. — Where a complaint in a primary election contest failed to state a cause of action, it cannot be cured by an amendment not filed within the time required by the statute for contesting.
    Appeal from Stone Circuit Court; Bene H. Coleman, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This is a statutory proceeding’ by John B. Gower against Sam Johnson to contest the right of the latter to be declared the nominee for sheriff of Stone County under the primary election held by the Democratic party on the 10th day of August, 1926. The complaint is somewhat lengthy, -and, for that reason, is not set out in full. It is alleged that Gower received - votes in said election for the office of sheriff in Stone County, and that Johnson received-votes in said election. It is further alleged that Johnson is not the legal nominee for sheriff and did not receive a majority of the legal votes cast in the election for said office, and that plaintiff is the legal nominee and should be given the certificate of nomination.
    The ground of contest is that the names of the voters who voted for Johnson do not appear upon the certified list of poll-tax payers required by the statute and because those voting for Johnson did not show a legal right to vote as required by statute. The circuit court sustained a demurrer to the complaint. The complaint was filed August 23, 1926, and, on the 3rd day of September, 1926,. the plaintiff asked leave to amend his complaint by stating the number of voters who voted for hjm and the number who voted for the defendant, and otherwise specifying grounds of contest which were not stated in his original complaint. The defendant also filed a motion to dismiss the complaint because it did not state all of the candidates for sheriff at said primary election, and that the plaintiff received more votes than any other candidate for said office.
    The court found the issues in favor of the defendant, and the complaint of the plaintiff was ordered dismissed. Judgment was entered in conformity with the holding of the court, and the plaintiff has duly prosecuted an appeal to this court.

      J. Paul 'Ward, for appellant.

      Jeffrey é B eng él, for appellee.
   Hart, C. J.,

(after stating the facts). The judgment of the circuit court was correct. Under our previous decisions construing our primary election statute, the right to contest a primary election is a statutory proceeding, the purpose of which is to furnish a summary remedy and to secure a speedy trial. The provision requiring the contest to be filed within ten days has been held to be mandatory and jurisdictional. If the contest is not filed within ten days after certification of the nomination complained of, the failure to institute the contest within that time is fatal to the right of the contestant. Hill v. Williams, 165 Ark. 421, 264 S. W. 964; and Storey V. Looney, 165 Ark. 455, 265 S. W. 51.

As was said by the Supreme Court of the United States in Walsh v. Mayer, 111 U. S. 31: “The provisions requiring it to be asserted in a particular mode and within a fixed time are conditions and qualifications attached to the right itself, and do not form part of the law of the remedy. If it is not asserted within the limited period, it ceases to exist, and cannot be claimed or enforced in any form. ’ ’

The allegations of the original complaint were too .general. It was not stated that one of the candidates received a plurality of votes at the election or that they were the only two candidates voted upon at said election for sheriff, or that the plaintiff received a majorty of the votes cast for that office. Hence the court properly sustained a demurrer to it. The statute under consideration gives both the right to contest and the remedy of the contestant, and he must bring himself strictly within the statute by stating specifically the grounds upon which he contested the election; and his complaint, which merely stated his conclusion in the premises, was properly held to be subject to demurrer. The amendment was not filed within the time required by the statute, and, for that reason, the court properly refused to consider it. Bland v. Benton, 171 Ark. 805, 286 S. W. 976. Under the statute, the contestant is limited to the grounds of contest set out in his original complaint, and these grounds cannot be enlarged by subsequent amendment not made within the time- required by the statute for contesting.

It follows from the views we have expressed that the judgment appealed from must be affirmed.


text:
    Adams v. Harrell.
    Opinion delivered March 28, 1927.
    1. Trusts — -basis of doctrine. — The doctrine of trusts rests on the principle that equity looks on that as done which ought to be done, and in this application of this principle it looks through form to substance and fashions its decrees to protect parties from bad faith.
    2. Appeal and error — chancellor’s finding.- — An appeal in a chancery case is tried de novo, and the chancellor’s finding on disputed questions of fact will not be reversed unless clearly against the preponderance of the evidence.
    3. Trusts — good faith of trustee. — A finding of the chancellor that in the administration of a trust the trustee acted in good faith held supported by the evidence.
    Appeal from Jefferson Chancery Court: Harvey R. Lucas, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    E. T. Adams and Mrs. Angela Cook brought this suit in equity against J. A. Harrell for an accounting by him as trustee, and the grounds of the suit are that he acted in bad faith in the administration of the trust estate and owes them certain amounts as their share of the profits, which he had appropriated to his own use. Harrell filed an answer in which he denied all the allegations of the complaint and averred that he had discharged in good faith his duties as trustee, and had faithfully administered the trust estate. Mrs. Kate Allen was allowed to intervene and claim a certain amount of the trust fund which remained in the hands of the trustee and which-he admitted belonged to her®
    It appears from the record that, some time prior to the 16th day of April, 1924, T. L. Cook had obtained the title to an oil lease at Norphlet, in Union County, Arkansas, comprising three and one-half acres. B. T. Adams ascertained that Cook would sell an-'undivided interest in the lease, and told J. A. Harrell about it. At the request of Adams, Harrell agreed to furnish the money to buy a one-fourth interest in the lease each for himself and Adams. Harrell paid $880 to Cook and took Adams’ note for $440. This made Adams and Harrell each have a one-fourth interest in the lease. Subsequently, Mrs. Kate Allen and William Tierce .jointly purchased an undivided one-fourth interest in the lease, for which they paid $880. Money being needed for the development and operation of the lease, Mrs. Allen lent $4,000 for this purpose and took a note signed by Cook, Harrell and Adams. Cook was made trustee of the operation and development of the lease, and the $4,000 borrowed from Mrs. Allen was turned over to him for that purpose. He did some work in starting drilling .operations and then secretly left the State, taking the $4,000 with him.
    Harrell located him through his wife in Memphis, Tennessee, and, through her, induced him to come back to El Dorado. When Cook arrived there, Adams, Harrell and Mrs. Cook got him in a room and demanded that he assign the lease to Harrell as trustee. Cook finally agreed to do this and did do so. Because Mrs. Cook had induced her husband to return to Union County, she was given ■ the one’-fourth interest in the lease which had been retained by Cook. When Cook assigned the lease to Harrell as trustee, Harrell issued certificates to Adams and Mrs. Cook, showing- that the}^ owned each a one-fourth interest in the lease, and a cerlifieate to Tierce and Mrs. Allen showing their joint ownership of a one-fourth interest. -Harrell retained his one-fourth interest in the lease. \

      Harrell began drilling operations, and two producing wells were drilled on the lease. Thereafter, Harrell sold the lease for the sum of $16,000, to be paid in oil. Then he sold the oil payment for the sum of $5,000 in cash and $6,000 payable in oil. He realized from the sale $11,000. He then made an accounting showing the items received by him and those expended by him in the administration of the trust estate. After accounting for all funds received by him as such trustee, Harrell admitted having in his hands $810.90 which was due Mrs. Allen and for which she was allowed-to intervene.
    The chancellor made a specific finding of facts in favor of Harrell, and found that the plaintiffs failed to establish their charges of bad faith against Harrell, and it was decreed that their complaint should be dismissed for want of equity.' It was decreed that Mrs. Kate Allen should recover from J. A. Harrell the sum of $810.90. To reverse the decree, the plaintiffs have duly prosecuted . an appeal to this court.

      McN alley é Sellers, for appellant.

      Coy M. Nixon and E. W. Brockma,n, for appellee.
   Hart, C. J.,

(after stating the facts). The subject of trust forms a large part of equity jurisprudence, and the equitable doctrine established in relation to trusts and trust estates enables a chancellor to deal with them in a way to maintain justice and good faith between the parties interested. The entire doctrine of trusts rests upon the principle that equity looks updn that as done which ought to be done. In the application of the principle, equity looks through form to substance, and it fashions its decrees. to carry out the purposes of the trust agreement and to protect the parties from bad faith and unnecessary advantage. In this connection it may also be stated that the appeal in chancery is a trial de novo in this court upon the same pleadings and evidence heard in the court below, and the finding of the chancellor upon disputed questions of fact will not be reversed unless it is against the clear preponderance of the evidence. Bearing in mind these well settled principles of equity and our familiar rules of practice in equity appeals, it cannot be said that the decree of the chancellor should be reversed.

Harrell rendered a definite and detailed account of his administration of the trust estate.' It showed each item of money received by him and for what purpose it was expended. It is not shown that Harrell in any manner profited by his administration of the trust estate.

In the beginning, he furnished money with which he and Adams each obtained a one-fourth interest in the oil and gas lease owned by Cook. Mrs. Allen and Tierce then jointly acquired a one-fourth interest. Cook retained a one-fourth interest. The parties borrowed $4,000 from Mrs. Allen to use in drilling operations. Mrs. Allen says that she loaned them this money because Harrell signed the note. The money was turned over to Cook to be used by him in drilling for oil on the lease. Cook did some work, but secretly left the State, taking the money belonging to the trust estate with him. Harrell, through Cook’s wife, induced him to return to Union County and to assign the lease to Harrell, as trustee for those beneficially interested in it. The interest of Cook was' assigned to his wife.

Harrell then undertook to administer the trust estate by drilling for oil on the lease. He brought in two producing wells and sold the lease for the sum of $16,000 to be paid in oil. He then sold the oil payment of $16,000 for $5,000 in cash and $6,000 payable in oil. He obtained in all $11,000, for which he accounted to those owning the beneficial interest in the lease.

It is claimed by the plaintiffs, however, that he acted in bad faith in selling the $16,000 to be paid in oil for less than par value. They introduced witnesses whose testimony tended to establish that he should have obtained par for the $16,000. which was payable in oil. On the other hand, according to the testimony of Harrell and of two other reputable witnesses, who had had considerable experience in that oil field, Harrell sold the $16,000, which was payable in oil, for the full value thereof. It is not shown that Harrell profited by the venture. The most that can be said about it is that he became uneasy about the venture and sold too low in order that he might' reimburse himself for amounts advanced by him in purchasing the interest of himself and Adams in the lease and in borrowing money on his personal security and making other expenditures-in drilling for oil. In this connection, it may be stated that Mrs. Allen was pressing Harrell for payment of the $4,000 which she had loaned to him and Jfis associates. Cook had run off, and nothing could be made out of Adams or Mrs. Cook. Mrs. Allen was looking to Harrell for payment of the $4,000 loaned by her to him and his associates. Adams had never paid any part of the amount advanced by Harrell to him for his one-fourth interest in the lease. Under these circumstances, it cannot be said that the finding of the chancellor that Harrell acted in good faith in the matter is clearly against the preponderance of the evidence.

Again, it is claimed that Harrell acted in bad faith in making certain payments to a man named Koury. Harrell explains that these amounts were paid to Koury for well-drilling On the lease. We do not deem it necessary to set out the evidence in full or to discuss and review it in detail.

The chancellor made a specific finding of facts substantially as above stated and embodied the same in his decree. We deem it sufficient to say that we have carefully read the evidence in the case and cannot say that the finding of facts made by the chancellor is against the clear or decided preponderance of the evidence. The decision of the chancellor shows that it was made in conformity to the. principles of equity above announced, and it is our opinion that the decree should be affirmed. It is so ordered.