author: McHaNey, J.

text:
    Matheny v. Patton.
    Opinion delivered June 11, 1928.

      Coleman & Reeder, for appellant.

      J. Paul Ward, for appellee.
   McHaNey, J.

On June 18,1926, appellant purchased from the Moore Motor Company an automobile, and executed his note for part of the purchase price, payable in monthly installments of $26.45 each. This note was assigned by indorsement by the Moore Motor Company to the Kirkpatrick Finance Company of St. Louis, Missouri, without recourse. Payments were made on the note from time to time, leaving a balance of $132.31. The Kirkpatrick Finance Company assigned the note to appel-lee ¡by the following indorsement: “For value received, pay to the order of R. H. Patton. (Signed) Kirkpatrick Finance Company. ’ ’

Appellant failed to pay the balance due, and appel-lee brought this suit in- the justice court, where judgment was rendered against" appellant, and an appeal was taken to the circuit court, where it was tried de novo before the court, without a jury, and judgment again rendered for appellee.

The only defense made to the note in the court below was that it is usurious. Appellant testified: “ Q. You are not much interested in any phase of this case except just beating it, are you ? A. That is all; just beating it right squarely on usury, here. I trusted them to put their interest in there at 10 per cent., and any amount over that was not understood nor agreed to 'by me. That is all. I knew they told me in plain English that I had to pay 10 per cent, interest and insurance, that is all.”

This issue was found against appellant by the circuit court, and he does not raise the question here.

The only question presented for our consideration is whether appellee was a proper party plaintiff. He insists that the note was assigned to Kirkpatrick Finance Company, which is the real party in interest, and that it alone had the right to sue upon the note, and that it could not maintain the action because it is a foreign corporation transacting business in this State in violation of the laws of this State relating to foreign corporations. But the question was not raised in the court below.

Appellee was the only witness who testified in this case, and if there is any evidence in the record showing that the Kirkpatrick Finance Company is a Missouri corporation, or a corporation of any kind, there is nothing in the abstract presented by appellant to show it. Neither is any such assignment of error contained in the motion for a new trial, there being only three assignments, that the verdict is contrary to the law, to the evidence, and to both the law and the evidence. These assignments of error are insufficient to present the question now raised for the consideration of the circuit court, and are therefore insufficient to raise the question here.

Moreover, if it be conceded that the Kirkpatrick Finance Company is a foreign corporation doing business in this State in violation of law, of which there is no evidence in the record, still the assignment by indorsement to appellee, being a valid indorsement, constitutes him a valid holder of the instrument, with power to sue in his own name, and therefore with the right to maintain this action.

The Negotiable Instruments Law, § 7761, Crawford & Moses’ Digest, defines the word “holder” as “the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.” By § 7817 it is provided that “the holder of a negotiable instrument may sue thereon in his own name, and payment to him in due coarse discharges the instrument. ”

Appellee was the holder of the note in question, and, under the above- sections of the -statute, had the right to maintain this action. Whether appellee was the agent of the Kirkpatrick Finance Company, and whether appellant would have had the right to plead a set-off or counterclaim in this action against the Kirkpatrick Finance Company, are questions not necessary for us to decide, as it is- not contended that the appellant had any right of set: off or counterclaim against it.

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


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Pyramid Life Insurance Company v. Belmont.
    Opinion delivered June 11, 1928.

      Brooks Hays and Marsh, McKay i& Marlin, for appellant.

      Coulter & Coulter, for appellee.
   Mehaeey, J.

Appellant brought this suit in the Union 'Circuit Court to recover from the appellee the sum of $1,611 and inter est upon a note, said note having been given fior first premium on a life insurance policy.

Defendant answered, specifically denying the allegations of the complaint, and denied that policy was ever delivered to him by the company, or that it was ever intended by the parties to be delivered. He further alleged that the note was obtained on the fraudulent representation that it was necessary that the note accompany appellee’s application for life insurance; that it was fraudulently represented to him that, in the event of a failure to issue and deliver the policy, said note would be canceled and returned to him; that no policy of any kind was ever issued or delivered to defendant. He further alleged that it was fraudulently represented to him that stock in the Pyramid Life Insurance Company in the sum of $1,000 would also be delivered to him, and that no stock of any kind had ever 'been delivered, and that there was a total failure of consideration for said note; that this suit was begun by plaintiff with a full knowledge of the above facts, and that no cause of action existed on the note; that, notwithstanding ■ they knew all the facts, and knew there was no liability on the. note, they sued out a writ of garnishment, and wrongfully, illegally and maliciously impounded his funds, and that he was damaged in the sum of $2,000. . .

The appellant introduced the .following note:

‘ ‘$1,611. El Dorado, Ark., 5-22,1926.

“On or before ninety days after date, I, we, or either of us promise to pay to the order of myself or legal holder, one thousand six hundred eleven- and no 100 dollars, for value received, negotiable and payable, without defalcation or discount, at the office of.., with interest from date at the rate of >6 per cent, per annum', and at the rate of 10 per cent, per annum after maturity until paid. The makers and indorsers of this note hereby severally waive presentment for payment, notice of nonpayment and protest.

“This note is given for premium for life insurance policy which has been issued in the form applied for and delivered to the maker of this note.

“Henry B. Belmont

“G-arrett Hotel, P. 0. El Dorado, Ark.”

Indorsed at bottom of note in pencil: “Claude Hol-lan, 1027.” Indorsed on back: “H. B. Belmont.”

The appellee introduced the following testimony:

Brooks Hays testified that he was sales director and local counsel for the plaintiff. He had actual supervision of the sales contracts of the company. The original contract has been in the possession of Mr. Hollan ever since the date of issuance. Mr. Hollan is the local agent of the company. Does not know that he has seen the original policy. Might have looked at it in the court room. Hollan had it last spring in the court room, and tried to get appellee to take it, and he would .not. The grace period had not expired at that time. The thirty days had not elapsed, and it was in floree at that time. Twelve months had elapsed when witness tendered it to Mr. Coulter for the defendant. Witness did not become associated with the company until after this policy had been held by Mr. Hollan for some time. According to the company’s viewpoint, the policy had been delivered. It held it for Mr. Belmont’s benefit. This, referring to exhibit to pleadings, is a copy of the policy, and this is a photostatic copy of the application.. The original application is very likely in their files, but this is an exact copy. The policy was not to be in force until it was delivered to applicant in good health, and premium paid. The premium was paid by note. The policy and application which is made a part of the policy is the usual contract of insurance, the parts of which that are material to the issues in this case are as follows:

“B. That every declaration hereinabove contained is true. That there shall he no contract of insurance until a policy shall have been delivered to me and the first premium paid to said company, or its duly authorized agent, during my lifetime and good health.”

“I hereby declare that I have paid to Claud L. Hol-lan sixteen hundred eleven dollars in cash, and that I hold his receipt for same.

“Henry B. Belmont.

(Signature of applicant).

“Dated.

“Reo. note, $1,611.”

The policy was sent to Belmont about September. No part of the note had been paid.

The appellee testified that he made application to Mr. Hollan for his policy of insurance. He stated: “About May of last year Hollan came to me and started talking about insurance, and I wouldn’t listen to it; I told him I didn’t have the money; and he kept on talking to me about it. If I would take out a policy he would give me some stock in the company, but I didn’t have any money at that time, and he says, ‘Well, you don’t' have to pay on your policy now, and the stock will be delivered to you.’ He says: ‘I will give you stock equivalent to $1>000,’ and I says, ‘Well, I will talk to you about it later’; so I took the matter into consideration, and he come back in the evening again, and I says, ‘I will take out a policy for $25,000,’ and he says, ‘Well, the company don’t write any more than $20,000 to one person,’ and I told him, ‘I want a $25,000 policy,’ and he made up the application and passed it over for me to sign, and I thought he made it out like I told him to. He wrote up the application, and had me examined; and I says, ‘When are you going to send me the policy?’ and he says, ‘You will get it in thirty days, the company will send it to you.’ I didn’t have any ready money, and I executed the note for the premium. Thirty days went by, and I never got nothing, and I met him and asked, ‘ Say, what is the matter with the policy?’ and he said he would write to the company and find out what was the matter. Ninety days went by, and I never got the policy. I asked him a dozen times about the policy, and in October I stopped him and says, ‘Why didn’t I get the policy? I haven’t got it yet,’ and he says, ‘Is that so?’ and I says, ‘No.’ A few days later he says he had the policy. He never did anything about it. In February he showed me the policy; that was nine or ten months after I made the application. When he showed me the policy I asked him if it was for $25,000, and he said no, it was for $20,000. I told him that was not the policy I ordered. He said the policy was in force when I paid the first premium, and said after the second premium was paid I would be entitled to $8,000, and I told him I did not order any policy like that. He told me it would be in force when I- executed the note for the face of the policy. I asked him about the stock, and he said I would get it. I told him it was not satisfactory. He took it from my hand and put it iii his envelope, and he never delivered it to me, and he never delivered me any stock. Two days later the bellboy came with a note with a check written out. I wouldn’t sign the check, and then he told me he wanted me to sign the check; “it is important to the company; we want to put that paper in advertising.” I did not sign the check nor anything. No one ever delivered to me this policy. I would not have accepted it if they had delivered.it. It is not the kind of policy I bought. At the time they sued out a writ of garnishment in this cause I had checks outstanding. They were turned down on account of my money being garnished.

“I talked to Mr. Hollan about the policy, and I told him I wanted $100,000. I finally told him I would take $25,000, and we talked about $25,000 all the time. He said if I would sign the note my policy would be delivered in 30 days, but it was never delivered. Did not have a conversation in the Harrett Hotel, in the presence of Cubage and Claud Hollan, when he tendered me a policy for $20,000, and did hot tell him as soon as a judgment was paid me I would pay it. Had conversations with them, and knew Cubage. I told Hollan I would not have anything to do with it. ’ ’

This witness testified at length, hut the substance of it was that he wanted a policy for $25,000, and never did agree to take a policy for less than $25,000; that he understood the face of the policy was to be paid, and after-wards found that the policy that Hollan had was for $20,000 only, and that it only provided for the payment of a portion the first year, a larger portion the second year, and the face of the policy after that. .

Claud Bollan testified that he represented the appellant,, writing insurance for it, taking applications. That Belmont did not apply for $25,000, but applied for $20,000. That the note sued on was the one executed by Hollan at the time, and he also executed a receipt which was introduced in evidence, which showed that Belmont had paid to Hollan $1,611, and on the bottom of it was written, “Note $1,611,” signed “Henry B. Belmont.” Took Belmont’s application and sent it to the company, and it was in the neighborhood of 90 days before he got policy back from, the company. When he got the policy the note was due. He called on Mr. Belmont and told him he had his policy and his note was due, and Belmont said he could not pay the note. “I told him to pay tiie interest and we would- renew the note, and he said he couldn’t pay anything until he got his money, and then he would pay the whole thing in advance. I told him it would be three years before he got his stock, and he said he wanted to pay all three years up when he got his money. I had this conversation with Belmont at the Garrett Hotel, in August, and then, in the latter part of September, tendered him the policy. Belmont stated, £ You hold the policy here. ’ ” Witness sent the note back to the company.

Witness said he met Belmont in the lobby of the hotel, took him up to his room, and asked him about the payment of the note, and Belmont said he was drilling a well out south of town, and he says, “Just as soon as I get the money out of that well, I will pay you, or if I get it out of my suit I will pay you.” At that meeting, when he assured witness he would have the money in a few days, witness asked him if he did not want to buy $100,000. He said, “ No, I have got $25,000 on the other, ’ * and I says, “No, not $25,000, but $20,000,” and he just folded the policy up and handed me the policy, and he says, “You keep the policy until I can make enough to pay off the note, but I won’t take any more insurance now.” Mr. Belmont at the second meeting read most of the policy over. The policy was issued between 40 and 90 days after the application was signed. The insurance was in effect at the time the note was taken. The insurance company is in Little Bock, and the re-insurance company is in Des Moines-, Iowa. “I gave him the policy with the Pyramid Life Insurance Company just like the other people receive. I offered to deliver this policy in August. His note was due at that time. Belmont handed the policy back to me to hold it until he paid the note. I was not holding it as security upon the note. The insurance was in force during all that time. When I gave him the policy, he kept it long enough to read it, and handed it back to me.”

Cubage testified that he was in the G-arrett Hotel, and heard a conversation between Hollan and Belmont, in which Hollan said, “When you bring in that well, I want to write you a policy for $100,000.” Mr. Belmont said no, $25,000 was enough for him, and Mr. Hollan said he only had $20,000, and went and got Belmont’s policy. Mr. Belmont said he thought it was $25,000, and said he did not want any more now. Mr. Belmont told Hollan just to keep the policy until he got his money, and he would get the money soon, and he need not worry about it.

We have set out the substance of the evidence, but it would serve no useful, purpose to set it out in detail, but enough is set out to show the intention of the parties and the issues.

The court, at the request of the appellant, instructed the jury as follows:

“1. You are instructed that, the defendant having admitted the execution of the note sued on, the burden is upon him to show by a preponderance of the evidence in this case that the same is without consideration, and, unless you find from a preponderance of the evidence in this case that no consideration was given for the note sued upon or passed from the payee to the payer, then you will find for the plaintiff.

“2. You are instructed that if you find from the evidence that the insurance policy was issued by the plaintiff company on the life of Mr. Belmont, and that the same was tendered to him by the agent of the plaintiff company, and that the defendant asked the plaintiff’s agent to keep the same for him until the note was paid, then you will find for the plaintiff the amount of the note sued upon.”

“7. In determining whether or not there was a delivery of the policy in question, you are instructed that it is the intention of the parties and not the manual possession of the policy which controls, and if you find that an insurance policy was issued in the form applied for and was accepted by the insured, being thereafter treated as in force by the parties, the delivery is complete, though it remain in the hands of the insurer’s agent, and if you do find that it was the intention of the parties that the contract should be considered in force, then your verdict should be for the plaintiff.”

And the court refused to give the following instructions requested by appellant:

“3. You are instructed as a matter of law that the consideration for the note given was the issuance of the insurance policy referred to, by the plaintiff upon the life of the defendant, and if you find that said insurance policy was issued and was tendered to the defendant, that is sufficient consideration to support the note, and you will find for the plaintiff.

“4. You are instructed that, when the insurance company issued its policy of insurance as applied for upon the life of H. B. Belmont, defendant in this case, it became bound to pay tbe same in tbe event of bis death, and whether there was manual delivery and actual taking possession of the policy by PI. B. Belmont is not material to the validity of the note sued upon, ’and if you find that said policy was so issued upon the application of the defendant, and that the defendant was notified thereof, then your verdict will be for the plaintiff.

“5. You are further instructed that the test as to whether there was a valid consideration for the note is whether or not the insurance company, plaintiff herein, became bound to the beneficiary named in the policy at' any time to have paid the amount of the policy in event of the death of the defendant, and if the insurance-company was bound to have paid the policy in the event of his death, then your verdict will be for the plaintiff.

“6. You are further instructed that, if the insurance company, plaintiff in this case, acting upon the application of the defendant, H. B. Belmont, and in consideration of the note sued upon, actually executed the policy of insurance, and tendered it to the defendant, then the company was liable for the amount of the policy in the event the defendant died during the life thereof, or.the period for which said note was given to pay the premium, and your verdict will be for the plaintiff. ’ ’

The f ollowing instructions were given at the request of the appellee:

“2. You are instructed that, unless you find from the evidence that plaintiff, Pyramid Life Insurance Company, issued to defendant a policy or certificate in the form applied for, and that the same was delivered to and accepted by defendant while he was in good health, your verdict should be for the defendant. ’ ’

“4. You are instructed that, if you find from a preponderance of the evidence that the agent of plaintiff life insurance company made any material misrepresentations to the defendant by which he was induced to execute the application for insurance, either with reference to the terms and conditions of- the policy or certificate itself, or with reference to the issuance and delivery of stock in the plaintiff company, such misrepresentations, when discovered by defendant, would be a complete justification for his refusing to accept such policy or certificate; and if you find that such representations were made, your verdict should be for the defendant.”

The jury returned a verdict for the defendant, and the plaintiff filed motion for new trial, which was overruled, exceptions saved, and this appeal prosecuted to reverse the judgment of the circuit court.

The appellant’s first contention is that, under the undisputed testimony in this case, the contract of .insurance was consummated upon the approval of the application by the 'company’s medical director and became a complete and binding contract without the issuance or the delivery of the policy. In the application signed by Belmont, which is made a part of the policy, is the following clause: “That there shall be no contract of insurance until a policy has been delivered to me and the first premium paid to said company, or its duly authorized agent, during my lifetime and good health.”

The appellant says that this was a part of the policy. It was attached to the policy, and it was therefore the intention of the parties expressed in writing that there should be no contract of insurance until the policy was delivered. It therefore appears clear from the contract entered into that there was to be no contract of insurance until the policy was delivered.

Suit was brought on a policy that contained the following statement in the application: “'That if this application is accepted, the policy issued hereunder shall not take effect until the first premium shall have been paid to and accepted by said company or its authorized agent and such policy delivered to and accepted by me, and all during my continuance and while I am in good health.” The court, in construing this policy, said:' “It is elementary that delivery, either actual or constructive, of an instrument of writing of the character of this policy is essential to give it legal effect, and the stipulation quoted from the application for the policy in express terms was tliat the policy should not take effect until it should he actually delivered to and accepted by the applicant. This was a clear and explicit agreement, the effect of which could not be varied by Stewart’s intention that the policy should be effective as soon as he executed it. If he had actually tendered the policy, yet, under the terms of the agreement, it would not become a completed contract until accepted by Melton, and there was no evidence to show that he even intended to accept it until after he was fatally ill, and which illness precluded his right then to demand its delivery, according to the terms of his agreement with the company.” American Home Life Ins. Co. v. Melton, 144 S. W. 362.

In the instant case substantially the same agreement was made in the application signed by Belmont. It was expressly agreed that* there should be no contract of insurance until the policy was delivered. It therefore seems clear that the contract made by the parties and the agreement signed by Belmont and accepted by Hjollan for the company were to the effect that there should be no contract of insurance until the policy was delivered, and it was not offered to be delivered for about 90 days. The understanding was that it should be delivered in 30 days.

yfe do hot agree with appellant that the contract of insurance was consummated upon the approval of the application by the company’s medical director and became a complete and binding contract without the issuance and delivery of the policy, because the application itself expressly stated that it should not be a contract of insurance until the policy was delivered. Therefore, if Belmont had died after his application had been approved by the medical director of the company, he could not have recovered the amount of the policy.

But appellant argues that a parol contract of insurance was entered into by the parties, which was binding upon the company when the application was approved by the medical director, and that the issuance of the policy and delivery to Belmont were not essential to the completion thereof. This contention is in the face of the policy itself, or the application which is attached to and made part of the policy.

It is a well’established rule that, whatever agree-, ments may he made, or whatever conversation or statements precede a written contract, when the writing is signed, as it was in this instance, it takes the place of all the discussions and propositions preceding it. It is admitted by appellant that there is nothing in the application or in the policy to the effect that the insurance was to become effective upon the approval of the application by the medical director, but it insists that it was agreed that it should be effective from the date of the note and application. And the application provides for the medical examination, as well as the delivery of-the policy, before it can become effective.

It is true that contracts of insurance may be made by parol, and delivery of the policy is not essential to the completion of the contract in such cases; but that is where the minds of the insured and insurer, for a valuable consideration, have met on all the terms of the contract, the contract is complete and enforceable, even though it was intended by the parties to be evidenced by a policy which might not be delivered before the death of the party. But that is where the intention of the parties is to make a contract of insurance by parol. Here it is expressly stated by the parties that this was not to be done. Besides, the minds of the parties must meet before any valid contract can be made.

The appellee testifies positively that he made application for, and expected to get, a policy for $25,000; that no such policy was ever offered him. A part of the consideration for the note was also $1,000 stock in the company, which he never did get. The evidence is not disputed that the stock was to be given, and it is not disputed that the policy was to be delivered within 30 days. There is a dispute about whether the policy was to be for $20,000 or $25,000, and this was a question of fact for the jury. Then, besides that, one of the instructions given at the request of the appellant was as follows:

“You are instructed that, if you find from the evidence that the insurance policy was issued by the plaintiff company on the life of Mr. Belmont, and that the same was tendered to him by the agent of the plaintiff company, and that the defendant asked the plaintiff’s agent to keep the same for him until the note was paid, then you will find for the plaintiff the amount of the note sued upon.”

It will be seen from this instruction that the question was • submitted to the jury, the very contention made by the appellant in the case, and the jury found against it.

Appellant also asked, and the court gave, the following instruction:

“In determining whether or not there was a delivery of the policy in question, you are instructed that it is the intention of the parties and not the manual possession of the policy which controls, and if you find that an insurance policy was issued in the form applied for and was accepted by the insured, being thereafter treated as in force by the parties, the delivery is complete, though it remain in the hands of the insurer’s agent, and if you do find that it was the intention of the parties that the contract should be considered in force, then your verdict should be for the plaintiff.”

.So, whether it was the intention of the parties to make the contract by parol or not, was submitted fairly to the jury. As we have already said, the application, which was a part of the policy, said that there should be no contract until the policy was delivered. But, notwithstanding this, the court submitted the question to the jury whether there was an intention for it to be in force before delivery, and told the jury that, if this was the intention of the parties, they should find for the plaintiff.

Appellant calls attention to the case of Jenkins v. International Life Ins. Co., 149 Ark. 258, 232 S. W. 3. It is true that the court said in that case: “The general doctrine is that contracts of insurance may 'be made by parol, and, sncb being tbe case, of course delivery of the policy is not essential to the completion of the contract of insurance; and, where the minds of the insured and the insurer for a valuable consideration have met upon all the terms of the contract, the contract is complete and enforceable, even though it was intended by the parties to be evidenced by a policy, but which, because of some fortuity, was not delivered before the death of the insured.” The court further said in the same case: “But, of course, the parties may agree, as a condition precedent to a complete and enforceable contract of insurance, not only that there shall be a delivery of the policy, but also a delivery while the insured is in good health. ’ ’

Numbers of authorities are cited in the above case, and there is no question about the rule in this State. But the record shows that the parties in the instant case agree that there should be no contract of insurance until the policy was delivered.

Appellant also calls attention to the case of Mutual Life Ins. Co. v. Parish, 66 Ark. 612, 52 S. W. 438. In that case the court said :•

“Whether a contract for insurance has been completed depends upon the question whether the respective parties have come to- an understanding upon all the elements of the contract — the parties thereto, the subject-matter of insurance, the amount for which it is to be insured, the limits of the risk, including its duration in point of time and extent in point of hazards assumed, the rate of premium, and, generally, upon all the circumstances which are peculiar to the contract and distinguish it from every other, so that nothing remains to be done but to fill up the policy and deliver it on the one hand, and pay the premium on the other. ’ ’

Some of the issues in this case, about which there is a conflict of evidence, were the terms of the 'Contract. And these questions were submitted to the jury, and its verdict is controlling here.

Appellant next calls attention to Cooley’s Brief 442, and to Ætna Life Ins. Co. v. Short, 124 Ark. 505, 187 S. W. 657, but there is nothing in either of these authorities contrary to the rules above announced.

Another case, and the last one to which appellant calls attention, is the case of Huntington Ins. Agency v. Wyoming County Court, 98 W. Va. 352, 127 S. E. 64, 41 A. L. R. 642. In that case the court said, among other things:

“"Whether an insurance policy has or has not been delivered, after its issuance, so as to complete the contract and give it binding effect, does not depend upon its manual possession by the assured, but rather upon the intention, of the parties, as manifested by their acts or agreements. The manual possession of the thing which it is intended to deliver is a matter of little consequence. Such possession may exist without any legal delivery, and it may not exist where a legal delivery has been effected; The controlling question is, not who has the actual possession of the policy, but who has the legal right of possession.”

And, as we have already shown, the question of the intention of the parties was submitted to the jury by instructions requested by both parties, and the finding of the jury is conclusive here.

In the notes to the above case, to which attention is called, a number of Arkansas cases are cited.

Appellant argues that the undisputed testimony shows that the contract was completed, and insists that it appears that the company issued the kind of policy applied for, but we do not agree with appellant in the contention that the undisputed proof shows there was a completed contract, nor that the undisputed proof shows that the kind of policy applied for was issued. There is a sharp conflict in the testimony of Belmont and Hollan. Belmont swears very positively that it was not the kind of policy he applied for, and Hollan testified it was. This was one of the issues submitted to the jury. The application and agreement to take a $25,000 policy is not met by an offer to deliver a $20,000 policy. The minds of the parties must meet on all the essential terms of an insurance contract, just as they are required to meet on the terms of other contracts. And, according to the testimony in this case, there was a dispute as to whether the minds of the parties met.

The court properly instructed the jury, and there is substantial evidence to support the verdict.

The judgment is therefore affirmed.


author: Hart, C. J.,

text:
    Buchanan v. Commercial Investment Trust.
    Opinion delivered June 18, 1928.

      McRae ■& Tompkins, for appellant.

      Bush, Bush & Bush, for appellee.
   Hart, C. J.,

(after stating the facts). We will first take up and determine the rights of the parties on the cross-appeal of the Commercial Investment Trust, because it is based upon the motion of the Commercial Investment Trust to dismiss the appeal of A. S. Buchanan in the circuit court on the ground that the appeal taken 'by bim from tbe judgment of tbe court of common pleas was not taken within tbe time prescribed by statute.

The Legislature of 1893 passed an act to establish a court of common pleas in Nevada County. Acts of 1893, p. 190. Tbe act provides for quarterly sessions of said court in tbe town of Prescott, and tbe judge of tbe county court was made tbe judge of the court of common pleas. Tbe clerk of tbe circuit court was made ex-officio clerk of tbe court of common pleas. Section 12 of tbe act provides that any party aggrieved by the judgment rendered by tbe court of common pleas might take an appeal to the circuit court at any time witbin thirty days from tbe rendition of tbe judgment, by filing a proper affidavit with tbe clerk of the court and giving tbe bond prescribed by tbe statute, in case it was desired to suspend the judgment. The judgment by default was rendered in tbe court of common pleas on tbe 16th day of November, 1927. According to tbe testimony of tbe judge of tbe court of common pleas, tbe attorney for A. S. Buchanan exhibited what be called an affidavit for appeal and bond for appeal in tbe office of tbe judge of tbe court of common pleas on tbe 19th day of November, 1927. He laid tbe papers down on tbe desk of tbe judge, and there was some discussion between the attorneys as to the proper form of tbe judgment. Tbe clerk was not there at that time, but came in later with some of tbe original papers in tbe case. Subsequently tbe papers became lost, and there was some effort made to substitute copies of all tbe original papers in tbe case. A few days after the thirty days since tbe rendition of tbe .judgment had expired, the judge of tbe court of common pleas found tbe original affidavit and bond for appeal in bis office, and attempted to indorse thereon tbe file mark of a date witbin thirty days from tbe rendition of tbe judgment. Tbe affidavit and bond for appeal, in fact, however, did not have any file mark on them.

Tbe circuit court properly overruled tbe motion to dismiss tbe appeal. Tbe act of leaving or depositing tbe paper in the proper office constitutes a filing of it. A paper is filed within the meaning of the law when it is delivered to the proper officer and received by him to he kept on file. The file mark is evidence of filing, but is not the essential element of the act. Eureka Stone Company v. Knight, 82 Ark. 164, 100 S. W. 878. Hence the circuit court was justified in finding that the affidavit and bond for appeal were left in the proper office to be filed, and that the act of leaving them there within thirty days after the rendition of the judgment constituted a filing within the legal meaning of the word, although there was no indorsement on the affidavit and bond for appeal that they had been filed.

It is earnestly insisted that there was no filing with the clerk as required by the statute. It is true that the clerk was not in the room at the time the attorney for Buchanan first laid the papers on the desk of the presiding judge and told him that he was intending to take an appeal, but the clerk came in later with some of the original papers in the case, and it is fairly inferable that he knew that the affidavit and bond for appeal had been deposited in the office for the purpose of being filed. They were afterwards found by the presiding judge among the original papers in the case, and it is fairly inferable that they were placed there by the clerk. The original papers were subsequently lost, and a bona fide. effort was made by the attorneys on both sides to supply them; but, before this was done, the judge of the court of common pleas found the original papers, and the affidavit and bond for appeal were among them. In this state of the record the circuit court was justified in finding that the affidavit and bond for appeal were deposited by the attorney for Buchanan in the place where the official record and papers of the court of common pleas were usually kept, and were placed there for the purpose of being filed in accordance with the provisions of the statute creating the court of common pleas.

In this connection it may be stated that the attorneys on both sides of the case testified about the matter, but we do not deem it necessary to set out their testimony. They are both men of high standing in their profession, and we deem it proper to say that there is nothing in the testimony of either of them which would tend to reflect in any way on their; honesty or integrity. On the contrary, their testimony reflects credit on their official character as lawyers, and justifies the continuance of the former good opinion in which each of them is held by this court.

This brings us to a consideration of the appeal on the merits. In a case-note to Ann. Cas. 1916A, p. 90, it is said that, if a vendor makes a conditional sale of goods to a retailer for the express or implied purpose of resale, the vendor will not be permitted to maintain title thereto as against a person who buys in the ordinary course of trade from the retailer; and decisions of numerous courts of last resort in the United States are cited in support of the text.

Again, in the case-note to 47 A. L. K., at page 87, it is said that, where goods are sold on conditional sale, with express or implied authority to the buyer to resell them, a purchaser from the buyer obtained good title thereto, and numerous cases are cited in support of the text.

In the reported case of Gump Investment Co. v. Jackson, 142 Va. 190, 128 S. E. 506, 47 A. L. R. 82, it was held that an automobile financing company, which permits a dealer to keep a new car in his salesroom after a pretended sale under a recorded conditional sales contract, the note representing the purchase price of which, and the contract securing the same, it has purchased, must bear the loss, where the dealer sells the car to an innocent purchaser for cash, which he retains, and becomes insolvent without satisfying the note.

This is in accordance with our decisions. It has been decided in this State that, if a person makes a mortgage of automobiles to another for the purpose of being re-sold by him as retail dealer, the original seller cannot retain title thereto as against a bona fide and innocent purchaser from the original purchaser. Coff- man v. Citizens’ Loan & Investment Company, 172 Ark. 889, 290 S. W. 961. Again, in Commercial Credit Company v. Hardin, 175 Ark. 811, 200 S. W. 434, it was held that, in an action by one who had purchased an automobile left with the dealer by the owner to sell, in which it was shown that the ear had been transferred to another before plaintiff purchased, and note and sales contract had been taken by the dealer and sold to a credit company, evidence tended to show that the first transfer was fraudulent as to the owner.

In the application of this rule to the facts in the record in the case at bar, the court erred in excluding from the jury the testimony of Horace J. Estes, to the effect that he told the representative of the Knight Overland Company, when he purchased the oar in question, that he was buying the oar for the purpose of selling it in his business. The witness had already testified that he was a retail dealer in Willys-Knight automobiles at Prescott, Arkansas, and that he had purchased between forty and fifty cars from the Knight Overland Company. This results from the application of the rule above declared. The excluded testimony would have tended to show that the seller of the car in controversy knew that the purchaser was a retail dealer in automobiles and was buying the car for the purpose of selling it in his business. It is true that, in his written statement, he said that he was buying the car for his own use, but the excluded testimony would have tended to show that his written statement might not be true, and would have tended to show what the real agreement between the parties was.

A case directly in point is Spooner v. Cummings, decided by the Supreme Court of Massachusetts, 151 Mass. 213, 23 N. E. -839. In that case it was held that a purchaser from a vendee in possession of a chattel under a written contract, by which the title to remain in the vendor -until the price was paid, and to which the purchaser was not a party, may, in replevin by. the vendor under a general denial, contradict the contract by showing the real agreement of the parties thereto. In that ease the plaintiff had sold a horse to one Pope under a conditional agreement that the title should remain in plaintiff until the horse was paid for; and Pope, without paying for the horse, sold it to the defendant, who was an innocent purchaser. It was held that, evidence tending to show that, according to the course of dealing between the plaintiff and Pope, it was expected that Pope was to resell the horse, was admissible, and that, if it appeared that the plaintiff expressly or impliedly authorized the sale, the defendant, having" bought it in good faith from the appellant owner, acquired a good title by estoppel.

In the present case the undisputed evidence shows that Buchanan 'bought the automobile in good faith from Estes and paid him therefor, believing that he was acquiring a good title to the automobile. The excluded testimony would have tended to show that Estes had at least implied authority to resell the automobile, notwithstanding he had declared in his written statement that he was purchasing it for his own use.

For the error in excluding the offered testimony the judgment will be reversed, and the cause will be remanded for a new trial.


text:
    Turner v. Citizens’ Bank of Hickory Ridge.
    Opinion delivered June 18, 1928.

      Cooley, Adams & Fuhr, for appellant.

      Ogam <& Shaver and Hawthorne, Hcmthorne & Wheatley, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for the defendant Turner earnestly insist that the circuit court erred in overruling his motion to dismiss the complaint. Counsel for defendant contend that the answer of the defendant to the suit instituted against him in the circuit court of Craighead County was also a counterclaim, and that the court erred in dismissing the cause of action. Counsel contend that, although the matter set up in his counterclaim constituted a defense to plaintiff’s cause of action, it was also of a nature that entitled defendant to affirmative relief, and that the plaintiff could not affect the right of the defendant to a trial on his counterclaim by a dismissal of its complaint. They rely upon the principles decided in Lay v. Collins, 74 Ark. 536, 86 S. W. 281, and Church v. Jones, 167 Ark. 326, 268 S. W. 7, and other cases of like import.

Conceding that counsel for the defendant is right as to the law on this 'branch of the case, still the court did not err in refusing to sustain his motion to dismiss the complaint. It appears from the record that the circuit court of Craighead County for the Jonesboro District dismissed the whole cause of action in that court, and this included what the defendant Turner called his counterclaim. If the court erred in dismissing the cause o’f action, the remedy of the defendant Turner was to appeal from the judgment. He could not allow a judgment to be entered dismissing’ the cause without prejudice, and then plead it in bar of a subsequent action. The judgment of the circuit court was that the cause of action should be dismissed without prejudice, and this was tantamount to holding that the plaintiff could take a nonsuit, and that he had the right to bring a subsequent suit on the same cause of action.

At most, it could only be said that the judgment of the circuit court dismissing the cause of action in toto was erroneous. In doing this the court did not regard the plea of the defendant Turner as a counterclaim. To be .such, it must amount to an independent cause of action which the defendant, if he had not been sued, might have enforced as plaintiff against the bank. The circuit court had jurisdiction to determine that the plea of the defendant Turner was not a counterclaim by allowing the cause of action to be dismissed; and, as above stated, if Turner thought the judgment was erroneous, he shouid have appealed from it. Not having done so, he is bound by the terms of the judgment, and cannot in a subsequent action have it reviewed. It follows that the judgment of the circuit court in refusing to dismiss the complaint of the plaintiff was correct.

The notes sued on were introduced in evidence, and the record shows that they were duly transferred to the plaintiff bank. Hence the court correctly rendered judgment in favor of the bank against Turner on the notes. Therefore the judgment will be affirmed.


text:
    Laney-Payne Farm Loan Company v. Greenhaw.
    Opinion delivered June 18, 1928.

      John, E. Miller and Charles W. Mehaffy, for appellant.

      Woods & Greenhaw, for appellee.
   Hart, C. J.,

(after stating the facts). This court has steadily adhered to the rule that the findings of fact made by a chancellor will not be set aside on appeal unless they are clearly against the preponderance of the evidence. Tested by this rule, it cannot be said that the decree of the chancery court is erroneous because the finding of fact made by the chancellor is clearly against the weight of the evidence.

According to the testimony of appellee, W. H. Laney, one of the appellants, induced him to purchase the stock in the Booneville bank upon the false representation that said bank was solvent, when in fact it was not. If the testimony of Greenhaw was true, the chancellor was justified in finding that Laney made statements to him of the value of the stock in the Booneville bank, based on his own knowledge of fact and not upon information received from third persons. If a person makes an assertion of facts of which he is ignorant, whether such assertion is true or false, lie becomes responsible in a civil action as if be bad asserted to be trne that which he knew to be untrue. The value of the stock was a material fact which induced appellee G-reenhaw to enter into the contract which is the basis of this action; and if Laney represented as of his own knowledge that the stock of the Bankers ’ Joint Stock Land Bank was worth above par, when in fact he had no such knowledge, then he would be responsible in damages. In other words, it is the settled rule of this court that, if a representation is made by'the seller of the nature of which he had no knowledge, or which he knows to be false, it will constitute fraud. Hunt v. Davis, 98 Ark. 44, 135 S. W. 458; Bell v. Fritts, 161 Ark. 371, 256 S. W. 53; Myers v. Martin, 168 Ark. 1028, 272 S. W. 856; Stroud v. Henderson, 171 Ark. 338, 284 S. W. 45; and Joyce v. McCord, 123 Ark. 492, 185 S. W. 775.

In discussing alleged false representations to induce a person to buy stock in a bank, in the case last cited, the court said:

1 ‘ These representations were • evidently made to assure the buyers of the value of the -stock and induce them to purchase without any further investigation of the matter. If the representations were false, and knowingly made by the seller to induce the purchaser to rely thereon to his injury, and such was their effect, then they were fraudulent, and the seller could be required to answer in damages for the injury to the buyer by reason thereof.”

It is true that Laney denied having made the representations to G-reenhaw; but the chancellor found that he did make such representations, and it cannot be said that his finding is against the clear preponderance of the evidence. If he did make them, he either knew them to be false, or made them recklessly without knowing the facts in the case, and in any event, under the authorities above cited, would be liable in damages.

It is claimed that the representations were not false, and that there is no proof in the record tending to show that the bank was insolvent in August, 1923, at the time when the representations about the value of the stock were made. 'The hank went into liquidation in May or June, 1924, and was never able at any time after the contract was entered into to furnish the money on any of the loans applied for through Greenhaw. Therefore the chancellor was justified in finding that the hank was insolvent at the time the representations were made. Greenhaw testified that he relied on the representations of Laney as to the value of the stock, and that this induced him to enter into the contract in question and to pay the $1,000 in cash for said stock, and to 'give Laney two notes for the (balance of the purchase money thereof; therefore the court rightly rendered judgment for Greenhaw against Laney in this sum.

We are of the opinion, however, that the court erred in rendering judgment in favor of Greenhaw against Laney for $500, claimed to have been expended by him in advertising and traveling expenses. According to the testimony of Greenhaw, he worked throughout a period of eight months in securing applications for loans, and claimed expenses in the sum aggregating $500. He admits that during this time he was also soliciting insurance for his insurance company, and makes, no attempt whatever to give an itemized statement of the money paid out by him in securing farm loans under the contract sued on. If Greenhaw intended to recover his expenses as a part of his damages for an alleged breach of the contract, it was his duty to have rendered an itemized statement of his expenses, and he is not entitled to recover by just stating a lump sum extending over a period of eight months. Therefore we are of the opinion that he failed to establish his claim of $500 for expenses, and that the court incorrectly allowed the same.

It follows that the court erred in rendering a decree in appellee’s 'favor against appellants for the sum of $500, and in this respect the decree will be reversed and appellee’s cause of action dismissed. In other respects the decree of the chancellor was correct, and it will ‘be affirmed.


author: Wood, J. G.

text:
    Aydelotte v. State.
    Opinion delivered March 22, 1926.

      Rogers & Robinson, for appellant.

      H. W.' Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Wood, J. G.

W. Aydelotte was indicted for the crime of murder in the first degree by the grand jury of Pulaski County in the killing of' one H. D. Edwards in Pulaski County, Arkansas. The testimony adduced by the State at the -trial tended to prove that Aydelotte, on the night of 'September 24, 19215, came over from Memphis, where he resided, to Little Rock after his wife, who, with their two children, was visiting his mother-in-law living at 1214 Rock Street, Little Rook, Arkansas. When Aydelotte arrived at the home of his mother-in-law, he ascertained that his wife was out with another man. He armed himself with a pistol and remained at his mother-in-law’s house until his wife and Edwards came there. He met them on the sidewalk a short distance from the house. An altercation took place between him and Edwards, and the shooting occurred. Edwards was killed by Adyelotte. Witnesses for the State say that just before the shooting occurred they heard Mrs. Aydelotte say, “Oh, my Hod, Grady, don’t do that!” and ran through the house. Then five shots were heard — first one shot and then four others in succession. After the shooting a lady’s voice was heard to ask Aydelotte, “Why did you do that?” and he replied, “I don’t know.” After the shooting' the police were summoned. They arrived in about ten minutes. Ayde-lotte came up to them and said, “I am the man who did the shooting. My God, I am sorry, but I had to shoot the boy; let’s go and find him.” They walked up the street together and found Edwards dead, lying in front of the corner house. An examination of the body showed that he was shot by a .32 pistol carrying steel-jacket bullets. One bullet entered his left side about an inch from the spine. There were five wounds, and Edwards died as a result of those wounds. There were no powder burns on Edwards’ coat or trousers. Aydelotte told one of the officers that he shot Edwards; that the gun used by him belonged to his mother-in-law, and he said he was taking the gun home. He told another officer that he did the shooting — didn’t know who the man was that he shot; that he killed the man on account of his wife— killed him because he was with his wife, and said, “You would have done the same thing.” The officers asked him if Edwards had tried to Mil him or assault him, and Aydelotte replied, “No.” After the officers took him down to headquarters, he asked what the charge was against him, and they told him that it was murder, and he then stated that Edwards had jumped on him and tried to kill Mm, The statements he made were voluntary. He also stated that the man jumped on him and caught him >by the throat. One officer stated that the pistol with which the ¡killing was done would have to he five or sis feet away from the party killed or else it would show powder burns on him; at a distance of three feet it would show powder burns on the clothes. If the clothes were light, it would be more distinct than on dark clothes. Edwards had on dark clothes. There was no weapon of any kind found on Edwards.

Aydelotte gave one of the officers the pistol with which the killing was done. The doctor who examined the body of Edwards at the City Hospital stated that one bullet wound was in the middle of the back about the ninth or tenth vertebra/ one or two in the lumbar region over the kidneys or liver, and one through the hip or thigh. This witness also testified that he didn’t observe any powder burns on Edwards’ clothing.

The testimony adduced by Aydelotte tended to prove that Mrs. Aydelotte was at the home of her mother, Mrs. Morse, where she had been about six weeks. Edwards had visited the house as often as four times a week. A witness who occupied a room down stairs next to the room of Mrs. Aydelotte heard conversations between Mrs. Aydelotte and Edwards. Mrs. Morse testified that Ayde-lotte married her daughter. He was living in Memphis, and his wife had been visiting witness for about six weeks. They received a telegram from Aydelotte, stating that he was coming to Little Eock, and his wife expected to return to Memphis with Mm. Aydelotte arrived about 7:15. His wife had left about ten minutes of seven with EdAvards. Aydelotte wanted to 'know where his wife was, and Avitness told Mm that she was out, but didn’t tell him whom she was with. Aydelotte went out twice trying to find her, and witness had tried to locate her several times, and finally told Aydelotte that his wif e was Avith Edwards, and that Edwards’ had been going with her frequently. Edwards had threatened Aydelotte when Avitness had asked him to remain away from the house; that Aydelotte might meet him there, and Edwards replied that he would be ready for him. When witness told Aydelotte these things, he seemed to be very nervous. The gun that Aydelotte shot Edwards with belonged to witness’ husband. It had been in witness’ trunk. She didn’t see Aydelotte get the gun. Witness and Aydelotte were sitting on the front porch when Ayde-lotte ’s wife and Edwards oame walking up the street together. Edwards had his arm around Mrs. Aydelotte, and kissed her. She was. trying to get away from him, and pushed him away. They were advancing toward witness ’ home, and witness said to Aydelotte, ‘ ‘ There is Hortense” (the name of Aydelotte’s wife). When witness and Aydelotte started off the porch, Mrs. Aydelotte exclaimed, “There is my husband!” Just at that time she ran towards witness, and exclaimed, “Oh, my Grod.” Aydelotte met Edwards and spoke to him, and Edwards grabbed at his throat. They struggled and fell to their knees, and two shots were fired. After a slight intermission the other shots were fired. This witness denied that she or Mrs. Aydelotte asked Aydelotte why he did it, and stated that he did not answer “I don’t know.” Witness told Aydelotte that Edwards’ visits to his wife were frequent, and witness saw Edwards caress and kiss Aydelotte’s wife. Witness didn’t see Edwards with any weapon. When the first two shots were fired, Aydelotte and Edwards were facing each other. Edwards had grabbed Aydelotte by the collar and they had clinched before any shots were fired.

Several witnesses testified that Aydelotte’s reputation as. a peaceable, moral and law-abiding citizen was good.

Aydelotte himself testified that he came over to Little Rock for his wife and two babies, who had been visiting his mother-in-law, Mrs. Morse. His testimony is substantially the same as that of Mrs. Morse as to the threats, the meeting with Edwards, and the fatal ren-counter. He stated that Mrs. Morse told him that Edwards had said to her, “If he ever catches me with his wife, I will be prepared and ready for him.” Witness went into Mrs. Morse’s trunk and got the pistol. Witness stated that when he faced Edwards he had never seen him before, and asked him what he was doing with his wife. Edwards didn’t say a word, bnt grabbed at witness’ throat, and it looked to witness like his other hand went to his hip pocket. Witness thought he was going after something, and pulled out the gun. Edwards then grabbed the gun with the hand he had on witness’ throat, and witness fired two shots. They were on their knees when the last shots were fired. Witness didn’t intend to use the pistol, and did so only because Edwards grabbed at him and tried to kill him. Witness didn’t know where the bullets struck the deceased and didn’t know what position he was in. Witness denied that he told the officers that the pistol was brought from Memphis and didn’t tell them he shot Edwards because he was with witness’' wife.

The court instructed the jury on its own motion, and among other prayers for instructions asked by counsel for Aydelotte was the following:. “No. 7. You are instructed that a person about to be attacked is not bound to wait until his adversary gets ‘the drop on him or draws a bead on him’ before he takes steps to prevent those occurrences from taking place. When a person apprehends that some one is about to do him great bodily harm, and there is reasonable ground for believing.the danger imminent that such design will be accomplished, he may safely act upon appearances, and even kill the assailant, if that be necessary to avoid the apprehended danger, and the killing will be justifiable, although it may turn out afterwards that the appearances were false.” The court refused this instruction,'to which the defendant at the time saved his exceptions. The cause was submitted to the jury and taken under consideration. On the third day of the trial the jury had not reached a verdict, and the court, on its own motion and over the objection of appellant a few minutes after it convened, gave to the jury an additional' instruction designated No. 1. This is a long instruction, and the view we have reached concerning it makes it unnecessary to set it out.

The bill of exceptions recites the folio-wing: “After the court had twice instructed the jury, and while the court was in session, not trying another case, hut waiting for the verdict, and while the jury was in the jury room deliberating, the Rev. A. J. Ashburn, foreman of the jury, left the jury room and went out into the hall and sent word to the court by the deputy sheriff that the foreman of the jury wanted to see the court. The court immediately went out into the hall where the foreman was, not knowing what he wanted, and answered the foreman’s question, telling him that the jury could give less than one year for the lowest degree of homicide, according to the instructions twice given to the .jury. Counsel for defendant was standing within about thirty feet of the court and the foreman of the jury, and could see them, but could not hear what was said. The foreman returned to the jury room, and the court immediately walked to where counsel for defendant was standing and told him what had been said. Counsel replied, “All right,” but that he wanted to save his formal exceptions of record, to which the court consented. The court did not tell counsel for defendant that he was going to answer the foreman’s question, and the first that counsel knew of the occurrence was when he saw the court standing in the hall, not in the court room, talking to the foreman of the jury. Counsel could not have anticipated anything of the kind, and had no opportunity to object before the occurrence took place, and he had no opportunity to request that the answer to the foreman be put in writing before it was given. When the verdict was returned into court, and before it was received, the court told all the jury the foregoing, and inquired if this was their understanding of what happened, and they said that it was. The court then asked them if the conduct of the judge and the foreman had exerted any influence whatever on them in reaching their verdict, to which they answered that it had not.”

The jury returned a verdict finding Aydelotte guilty of involuntary manslaughter and left his punishment to he fixed by the court. The court entered a judgment sentencing Aydelotte to ten months’ imprisonment in the State Penitentiary, from which is this appeal.

1. The court did not err in refusing appellant’s prayer for instruction No. 7. All the law bearing upon the subject-matter of this instruction was fully covered and more accurately stated in instructions given by the court on its own motion. The court very fully and correctly declared the law on the degrees of criminal homicide and on self-defense in its instructions. We deem it unnecessary to incumber the record by setting forth these instructions. They are in conformity with the law as announced by this court in many cases. Appellant’s prayer for instruction No. 7 is not an accurate and complete statement of the law in regard to the rights of a defendant under his plea of self-defense to act upon appearances of danger. The instruction is more or less argumentative in form and its peculiar phraseology cannot be approved as a precedent.

2. The first part of the court’s instruction No. 1 given on the court’s own motion after the jury had been considering the cause is entirely cautionary and does not invade the province of the jury. This portion of the instruction comes well within the bounds of the court’s province to give the jury cautionary instructions where such instructions are not so framed as to express the court’s views or conclusions on the facts of the case, and are so worded as not to intimate to the jury any opinion of the court as to the verdict that should be rendered by them.

The succeeding portions of this instruction No.' 1 are merely explanatory of instructions already given by the court, and are couched in language so carefully guarded and selected by the trial court as not to invade the province of the jury by passing upon the issues of fact. The recalling of trial juries, after the case has been submitted to them for decision, for additional instructions by the trial court on its own motion, where such additional instructions are in effect but a repetition of instructions already given before the jury retired to consider of its verdict, is not a practice to be commended. Unless the trial judge, under such circumstances, proceeds with extreme caution and is exceedingly careful in. the language employed in thus instructing the jury, his conduct is likely to be interpreted by one or the other of the parties to the litigation as manifesting a bias, prejudice, or partiality in the cause and as an effort on his part to argue the case and to unduly influence the jury in its deliberations. The judge should scrupulously avoid any act calculated to impress the parties to the cause with the idea that he is not holding’ the scales of justice in equipoise and weighing their respective rights with a fair and impartial hand. Necessarily the presiding genius of the trial is vested with large discretion to determine when the ends of justice require the recall of trial juries on his own motion to repeat instructions, or to give additional instructions, and, unless there is a manifest abuse of such discretion, his ruling in this regard, when challenged, will not cause a reversal of the judgment. After the most careful scrutiny of the additional instruction No. 1 given by the trial court in this cause, we are convinced that it is not open to the criticism made by counsel to the effect that it was but the expression of an opinion on .the part of the trial judge that the appellant was guilty. Although the instruction, as we have stated, was a repetition of the law that had been previously correctly announced by the court, it was couched in language which on its face was wholly free from any expression of opinion of the trial judge on the merits of the cause. Every presumption, to be sure, must be indulged in favor of the utmost impartiality of the trial court so far as the manner of the delivery of his charge to the .jury is concerned, and there is nothing in this record to justify the criticism of counsel that this additional charge of the court was delivered with such emphasis and tone of voice as to convey to the jury the impression that the court was of the opinion that the appellant was guilty of the crime of manslaughter, and that such instruction had the effect of turning the scales against him and caused the jury to return a verdict finding appellant guilty of manslaughter. Additional instruction No. 1 contained several different propositions of law, and it occurs to us they are all correct, hut, if some were correct and others erroneous, still only a general objection to the instruction was urged by counsel at the trial. In Darden v. State, 73 Ark. 315, 84 S. W. 507, we said: “The objection extended to the whole instruction, consisting of four paragraphs, and, one or more of these being sufficient, it should not have been sustained.” See also Bruder v. State, 110 Ark. 402, 161 S. W. 1067.

3. The most serious question in this case is whether or not the court erred in telling the foreman o,f th’e jury in the hall of the courthouse, apart from his fellows, in answer to a question propounded to the judge by the foreman, that the jury could give less than one year for the lowest degree of homicide according- to the instruction twice given to the jury. If this were all the record showed, it would undoubtedly be reversible error because contrary to § 3192, C. & M. Digest, which provides : “After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court the information required must be given in the presence of, or after notice to, the counsel of the parties.” The provisions of the above statute are mandatory, and where the facts call for an application of its provisions, unless the rulings of the court comply with the statute, they will constitute prejudicial error. The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the 'State, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law unless in open court and after notice to the counsel of the respective parties. While the records show that the communication between the foreman of the jury and the trial judge occurred in the hall of the courthouse, yet the record further shows that appellant’s counsel was standing within thirty feet of the judge and the foreman of the jury at the time, and, immediately after the communication, the judge informed appellant’s counsel of such communication. The counsel stated to the judge it was all right, but he wished to save his formal exceptions. Even this would not have been a compliance with the statute if nothing further had been done, but, after the jury had returned into court with its verdict, and before the court had received the same, the court informed the jury of the communication that the judge had with the foreman, and inquired of them if such was their understanding of what had happened, and asked them if the conduct of the judge and the foreman had exerted any influence on them in reaching their verdict, and they answered that it had not. Thus it appears that the communication between the judge and the foreman of the jury was repeated in the presence of the jury and counsel in the court room before the verdict was received and announced. Counsel for the respective parties were thus notified of what had taken place, and what was then taking place, in open court, and they were then given an opportunity to register any objection they had or might have had to the procedure, and they offered none. Counsel for appellant was immediately informed by the presiding judge of the communication between him and the foreman, and given an opportunity then to request that the jury be brought into open court and that the same information be there given the jury as had been given to its foreman, and counsel for appellant did not make such request.

It occurs to us that the error of the trial judge in communicating with the foreman of the jury in the hall of the courthouse was fully cured by repeating’ the communication in the presence of counsel and jury in open court before the .jury’s verdict was received and announced, when appellant’s counsel were given an opportunity to then and there offer any objection they had to the communication. Wawak & Vaught v. State, 170 Ark. 329, 279 S. W. 997. The statute was complied with both in letter and spirit, and therefore no prejudicial error resulted.

There is no reversible error in the record, and the judgment must therefore be affirmed.


author: Wood, J.

text:
    Shue v. State.
    Opinion delivered June 11, 1928.

      Elmo GarlLee, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

Charlie Sime was convicted on a valid indictment charging him, in the first count, with the crime of grand larceny, and in the second count with the crime of receiving stolen property knowing same to he stolen. He was tried on both counts, and was found guilty on the count of receiving stolen property, and, by judgment of the court, was sentenced to imprisonment in the State Penitentiary for a period of two years, from which judgment he prosecutes this appeal.

I. The appellant contends that the testimony was not sufficient to sustain the verdict. The testimony of Jack Troy and Clarence Bayliss was to the effect that they were employed by the appellant; that they delivered five hogs to the appellant, among which was the hog belonging to W. P. Wiggins mentioned in the indictment. According to their testimony, they were employed by the appellant to catch the hogs, and he was to give them $10 for each hog delivered to him at a certain place designated by the appellant, in Woodruff 'County, on the hard-surfaced road between appellant’s place of business and Memphis, Tennessee. They delivered the hogs to the appellant about twelve or one o’clock at night, in Wood-ruff County, Arkansas. The appellant put them in a truck, and went with them toward Memphis. These witnesses stated that the appellant told them where to catch the hogs and where to deliver them. The witnesses nsed the appellant’s wagon to convey the hogs to the place designated by the appellant, where they were to deliver the same to him. It was shown that one of the five hogs was the property of W. F. Wiggins. He fonnd the hog in the stock pens at Memphis, Tennessee.

Wiggins testified that, in a conversation with the appellant, appellant stated that the hogs were delivered to him on the pike road, and that it was dark, and appellant could not see the marks; that he drove on until daylight, when he looked and discovered that one of the hogs was in witness’ mark. Witness lost the hog in Woodruff County, Arkansas.

The testimony of the appellant, in substance, was to the effect that he bought the hogs from Jack Troy and Clarence Bayliss. The transaction took place in appellant’s store. He told Troy and Bayliss that he would have to get a wagon, or that they would have to get one, and bring the hogs to him. He hired them a wagon and team, and they agreed to bring the hogs to the pike road. They met the appellant at the pike road about two o’clock in the morning. They had five hogs. Appellant put the five hogs in his truck, and took them to Memphis and sold them. After appellant got back from Memphis, Bayliss and Troy came to get their money, but appellant refused to pay them, because he had heard, in the meantime, that the hogs were stolen, and appellant told them that he could not pay until he found out whether or not they had been stolen. Appellant’s business was farming, raising live stock, and trading. He had a little store. It was appellant’s custom to haul hogs to Memphis at night. Everybody hauled hogs at night, so they would not get too hot.

There was other testimony, but it is unnecessary to set it out. It will be seen from what we have already set forth that the testimony was sufficient to sustain the verdict. To be sure, there was a sharp conflict in some respects between the testimony of the appellant and Jack Troy and ‘Clarence Bayliss. But the jury were the sole judges of the evidence and the credibility of the witnesses. While Bayliss and Troy were accomplices, yet their testimony was sufficiently corroborated in essential particulars by the testimony of the appellant himself to justify the jury, where their testimony was in conflict with that of the appellant, to accept their testimony and reject his. It is unnecessary to comment further upon the testimony, as we are 'convinced that the testimony was sufficient to sustain the verdict.

2. The appellant assigns as error the giving’ of the following instruction: “You are instructed that the ■unexplained possession of property recently stolen is a fact from which an inference of guilt may be drawn, but the weight to be given the testimony on this question and the inference to be drawn therefrom are questions for the jury; and it is a matter for you to determine the reasonableness and sufficiency of the explanation given by the defendant as to his possession of the stolen property.” We cannot concur in the view of learned counsel for the appellant that the instruction is an invasion of the province of - the jury. The instruction is in harmony with the law on this subject as declared by this court in many cases, some of them quite recent. Long v. State, 140 Ark. 413, 216 S. W. 306; Pearrow v. State, 146 Ark. 182, 225 S. W. 311; Gilcote v. State, 155 Ark. 455, 244 S. W. 723; McDonnell v. State, 165 Ark. 411, 264 S. W. 961; Yelvington v. State, 169 Ark. 360, 275 S. W. 701; Thomas v. State, 175 Ark. 279, 298 S. W. 1027. In the last case we quoted approvingly the rule as laid down in it. C. L. as follows:

“The rule is, without doubt, that the possession of the property by the defendant, soon after the commission of the alleged crime, is merely an evidentiary fact tending to establish guilt, which should be submitted to the jury, to be considered in connection with all the other facts and circumstances disclosed by the evidence. It does not in any case raise a presumption of law that the defendant committed the alleged larceny, although the unexplained exclusive possession of stolen goods shortly after the commission of a larceny may, and often will, he sufficient evidence to justify a jury in finding the possessor guilty.” ¡See also Harrell v. State, 169 Ark. 1038, 278 S. W. 45.

3. The hill of exceptions recites: 1‘ The cause was submitted to the jury at 5 p. m. and was deliberated upon by the jury until 6:45 p. m., at which time the court recessed until 8 p. m., at which time the jury reconvened for further consideration of a verdict, and deliberated upon the same until 10:30 p. m., at which time the court had them called into the court room, and asked if they had a verdict, and they replied in the negative; thereupon the court gave the following additional instructions: ‘Under the law, gentlemen, if you should find the defendant guilty of either one of the counts in the indictment, then you could not find him guilty of the other. You can find him guilty only cn one count, for he could not be guilty of both stealing the property and receiving the ■same, under the evidence in the case. In case you should arrive at a verdict of guilty upon either one of the counts in the indictment, and are unable to agree on the amount of punishment to be inflicted, then you may return a verdict of just guilty on whichever count you may so find is justified under the evidence in the case, and the court can fix the punishment; but if, on the whole case, you entertain a reasonable doubt as to the guilt or innocence of the defendant, then he would be entitled to the benefit of that doubt, and you should acquit him. ’ ’ ’

The above instruction is the law, and it is proper for the court to so declare in cases of this kind. While larceny and knowingly receiving stolen property are kindred offenses, and may be charged in one indictment (§ 3016, O. & M. Digest), they are nevertheless not the same offense, and the conviction of one would necessarily preclude a conviction of the other. Only a general objection was made to the instruction. The instruction therefore should be considered as a whole, and not in separate paragraphs, as learned counsel for appellant urge. When the concluding portion of the instruction is read in connection with the other portion, it is manifest that counsel are in error in assuming that the court intimated his opinion of the guilt of the defendant. On the contrary, the instruction leaves the guilt or innocence of the defend-. ant to he determined by the jury on either of the two counts in the indictment. Even though the instruction was not embodied in the court’s charge when the cause was sent to' the jury for its deliberation and verdict, this was not error. The court had omitted from its charge an essential proposition of law, under the evidence, to guide the jury in its deliberation, and it was proper to give them such direction before the return of their verdict.

In view of the comment of counsel for the appellant upon the above conduct of the trial judge in recalling and instructing the jury as above set forth, it is well to repeat what we said in the recent case of Aydelotte v. State, ante p. 595, 281 S. W. 369, as follows: “The recalling of trial juries, after the case has be.en submitted to them for decision, for additional instructions by the trial court on its own motion, where such additional instructions are in effect but a repetition of instructions already given before the jury retired to consider of its verdict, is not a practice to be commended. Unless the trial judge, under such circumstances, proceeds with extreme caution, and is exceedingly careful in the language employed in thus instructing the jury, his conduct is likely to be interpreted by one or the other of the parties to the litigation as manifesting a bias, prejudice, or partiality in the cause, and as an effort on his part to argue the case and to unduly influence the jury in its deliberations. A trial judge should scrupulously avoid any act calculated to impress the parties to the cause with the idea that he is not holding the scales of justice in equipoise and weighing their respective rights with a fair and impartial hand. Necessarily the presiding genius of the trial is vested with large discretion to determine when the ends of justice require the recall of trial juries on Ms own motion to repeat instructions, or to give additional instructions, and, unless there is a manifest abuse of such discretion, his ruling in this regard,-when challenged, will not cause a reversal of the judgment.”

In the case at bar the court, having omitted in its original charge to instruct the jury that they could not, under the evidence, find the defendant guilty on both counts of the indictment, it was the duty of the court to complete its charge by so instructing the jury before the verdict was returned.

The record presents no- reversible error in the rulings of the trial court, and the judgment is therefore affirmed.


author: Per -Curiam.

text:
    Smith v. Grabiel.
    Opinion delivered June 11, 1928.

      Lems Bhoton, for appellant.

      Carl E. Bailey, for appellee.
   Per -Curiam.

Appellants are owners of real property situated witMn a street improvement district in the city of Little Rock, and "they brought this suit in equity against the commissioners of the district to attack the assessment of benefits. The -suit was not commenced until long after thirty days -after the assessment of benefits was made by the commissioners, and the attack upon the validity of the assessment is collateral.

In Ferrell v. Massie, 150 Ark. 150, 233 S. W. 1083, a motion to dismiss the appeal on -the ground that the transcript was not filed within the time required by statute was sustained. That was a suit for the collection of delinquent assessments in a street improvement district, as provided in the statute, and the owners of real property filed a cross-complaint attacking the validity of the district and the assessment of benefits. It was claimed that the cross-complaint took the case out of the statute with respect to the limitation of time for taking an appeal and filing the transcript, but the court held against that contention.

In Lewellyn v. Street Improvement District of Russellville, 172 Ark. 496, 289 S. W. 470, it was held that an action instituted by property owners attacking an assessment of benefits in a street improvement district is collateral where it is instituted more than thirty days after approval of assessments at the hearing on notice, pursuant to Crawford & Moses’ Digest, § 5658. The court said:

“In a direct attack upon the validity of assessments, it becomes a question of proof whether or not the assessments are correct, but in a collateral- attack we must indulge the presumption that the assessors considered all the elements of enhancement of value or detriment which might result from the improvement, and the court is not at liberty to disturb the finding >of the assessors, unless the assessment is demonstrably erroneous on its face.”

These decisions control here. We have examined the face of the proceedings, and there is nothing to indicate the illegality thereof. If the property owners desired to attack the assessments on grounds which require proof, they should have taken an appeal within the time required by statute, and, not having done.so, the motion by appel-lees to dismiss the appeal must be sustained. It is so ordered.

Mehaffy, J., dissents.