author: Woon, J.

text:
    Sovereign Camp Woodmen of the World v. Peaugh.
    Opinion delivered October 17, 1921.
    1. Insurance — war risk — additional premium.' — A provision in a contract of life insurance requiring the insured, in the event he entered the United States Army or Navy, to notify an agent of the insurer at its home office and to pay to such agent a certain sum in addition to the regular premium, in order to keep the policy alive for the full amount specified, is a valid and binding provision.
    2. Insurance — payment of additional war premium' — estoppel.— Where a policy of life insurance required that if insured entered the army he should notify insurer’s general agent at its home office and pay to such agent an additional sum, in order to keep the policy alive, the insurer is not estopped to avail itself of the defense that such requirement was not observed by reason of the fact thát insured left sufficient money in bank to pay the additional sum and instructed the cashier thereof to pay his dues, and that the local agent of the insurer did not notify the cashier to pay such sum;, the local agent not having authority to give such notice or to receive such payment.'
    Appeal from 'Clay Circuit Court, Western District; R. II. Dudley, Judge;
    affirmed with modification.

      T. E. Helm, for appellant.
    Tlie insured failed to notify tbe sovereign clerk of the fact of his having entered the army, and also failed to pay the additional premium as required by the terms of his contract. The insured was charged with such notice, and the local clerk could not waive any of the conditions of the contract. 188 S. W. 941; 58 So. 100; L. R. A. 1915 E 152; 4 L. R. A. (N. S.) 421; 183 IT. S. 308, note; 180 Pac. 2; 40 S. W. 553; 174 Mo. App. 250; 186 Cal. 204; 69 N. E. 718; 141 S. W. 1055; 84 Conn. 356; 151 Mo. 552; 153 Wis. 225; 93 Kan. 485; 87 Minn. 417; 188 S. W. 941; 60 Col. 585; 42 Okla. 25; 181 N. W. 819; 230 S. W. 540.
    The appellant has power to make by-laws fixing and regulating its own duties and that of its members. 71 Ala. 436; C. & M. Dig. § § 6071, 6086, 6095. All parties are bound by the terms of the contract (71 Ark. 295), and relief can only be granted according to its terms (52 Ark. 201; 112 Ark. 171). It is not against public policy for an insurance company to exempt itself from death of insured while in military or naval service. 138 Ark. 442. This is true whether such service is voluntary or result of draft. 106 S. E. 32; 107 S. E. 177.

      F. G. Taylor, for appellee.
    Appellant is estopped by the acts and conduct of its local clerk. 79 Ark. 315; 142 Ark. 132; 144 Ark. 345. The fact that deceased had entered the army was communicated to appellant’s clerk, who promised his1 mother to look after the matter of his assessments. The knowledge of the local clenk was the knowledge of the company. Sovereign Gamp W. O. W. v. Key, 148 Ark. 562; Illinois Bankers’ Life Assn. v. Dotvdy, 149 Ark. 72. This has been the rule in this1 State since the decision in 52 Ark. at p. 11. Since the appellant failed to introduce the local clerk as a witness, it is presumed his testimony would be against the company. 32 Ark. 337.
   Woon, J.

The appellee instituted this action against the appellant on a benefit certificate issued by the appellant on February 23, 1918, to the son of the appellee. The appellee was named as the beneficiary in tbe certificate, and in her complaint set up the certificate, and alleged that she had complied with all of the terms of the contract and was entitled to recover thereon the sum of $500. The appellant admitted that it had issued the certificate, but denied that the appellee was entitled to recover the sum of $500. It admitted that, under the contract, it was due the appellee the sum of $17.76, and offered to confess- judgment for that amount. The essential facts are substantially as follows:

The appellant is a fraternal benefit society doing business in this State. Its constitution and by-laws are expressly made a part of the contract of insurance. The contract contained the following provision:

“In the event the holder of this certificate shall die while serving in any branch of the United States army or navy, either as an officer or enlisted man, outside of the boundaries of the United States of America, then the amount due under this certificate shall be such proportion of the amount thereof as the period he has lived since becoming a member bears to his expectancy of life at the time of becoming such member, determined by the National Fraternal Congress Table of Mortality; provided that, should the holder of this certificate so desire, he may, within thirty days after entering the service in any branch of the United States army or navy as an officer or enlisted man, notify the sovereign clerk at the home office of the society, Omaha, Nebraska, United States of America, that he has entered such service of the United States of America and pay in advance to the sovereign clerk, for the society, the sum of $37.50 per one thousand dollars insurance per annum in addition to the regular assessment prescribed by section 56 of the constitution and laws of the Sovereign Camp of the Woodmen of the World; and upon so doing at the death of the member, or as soon thereafter as possible, the amount prescribed in this certificate shall be paid to his beneficiary or beneficiaries.”

Peaugh enlisted as a private in the United States army on April 13, 1918, and on October 26, 1918, he was killed while engaged in a battle in France. The insured did not pay the additional $37.50 to the sovereign clerk, and did not notify the sovereign clerk that he had enlisted in the United States army. Before leaving for France, Peaugh arranged with the cashier of the Bank of Success to pay all of his assessments as they were presented. He had on deposit with the bank more than $100. The cashier paid the dues for several months as they were presented by the clerk of the local camp, and would have paid the additional sum of $37.50 if it had been called to his notice that it was necessary to do so in order to keep Peaugh’s policy alive. Appellee went to see the clerk of the local camp concerning the payment of her son’s dues. The clerk told her that he was looking after the payment of the dues. He knew that her son had gone to the army.

The court, in effect, instructed the jury that if the insured had made arrangements with the cashier of the hank where he had sufficient money on deposit for the payment of his dues to pay these dues and had arranged with the clerk of the focal camp to collect the dues from the hank, and the clerk of the local camp told the appellee that he was looking after the collection of the dues and premiums on the policy in her favor, and failed or neglected to collect the $37.50 additional insurance, and they further found that it was his duty to collect the same and report the same to the sovereign clerk, the appellant would be estopped from saying that the required notice was not given and the additional premium was not paid. The appellant asked the court to instruct the jury to find for the appellee in the sum of $17.76, and to instruct the jury that upon the uncontroverted facts they could not return a verdict for the appellant in a greater sum.

The provision in the contract requiring the insured, in the event he entered the United States army or navy, to notify the sovereign clerk at Omaha, Nebraska, of such fact and to pay the sovereign clerk the sum of $37.50 in addition to the régular sum in order to keep the policy alive for the full amount of $500 specified therein, was a valid provision and mutually binding upon the parties to the contract. Miller v. Illinois Bankers’ Life Association, 138 Ark. 442; Security Life Insurance Co. of America v. Bates, 144 Ark. 345. See also Sovereign Camp W. O. W. v. Ricks, 106 S. E. 185; Nowlan v. Guardian Life Insurance Co., 107 S. E. 177; Marks v. Supreme Tribe of Ben Hur, 230 S. W.540; Huntington v. Fraternal Reserve Association of Oshkosh, 181 N. W. 819; McQueen v. Sovereign Camp W. O. W., 106 S. E. 32. The contract expressly required of the insured, in the event that he entered the service of the United States army or navy, to notify the sovereign clerk at the home office of the Society at Omaha, Nebraska, of that fact and to pay “in advance to the' sovereign clerk for the society the snm of $37.50.” The undisputed testimony show's that this was not done.

The facts in this case clearly differentiate it from the cases of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132; Security Life Insurance Co. of America v. Bates supra; Sovereign Camp W. O. W. v. Key, 148 Ark. 562; and Illinois Banker s’ Life Association v. Dowdy, 149 Ark. 72. The appellant is not estopped by its conduct from availing’ itself of the defense that the requirements of the “war clause” of the contract were not observed in the matter of giving the notice and paying the additional sum of $37.50. The local camp clerk was not a general agent, and there is no testimony to show that he was authorized to act for the sovereign clerk in giving the notice and receiving the payment required by the above express provision of the contract. The court therefore erred in submitting this issue to the jury and in not instructing .the jury as requested by the appellant. Since the above provision of the contract was not complied with on the part of the insured, the appellee under the undisputed evidence is only entitled to recover the sum of $17.76, for which the appellee offered to confess judgment.

The judgment of the court will be modified by reducing same to the sum of $17.76, and as thus modified it is affirmed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Garrett v. Big Bend Plantation Company.
    Opinion delivered October 17, 1921.
    1. Bankruptcy — annulment op garnishment lien. — Under § 67f of the Bankruptcy Act of 1898, nullifying all levies, judgments, attachments or other liens obtained within four months prior to the filing of a petition in bankruptcy against an insolvent person in case he is adjudged a bankrupt, a garnishment lien procured against a creditor of an insolvent person is annulled by adjudication of bankruptcy against such person had within 4 months from the date the 'garnishment lien was obtained.

      2. Bankruptcy — evidence of adjudication.— While the record of the bankruptcy court is the best evidence of the rendition of an adjudication of bankruptcy, it is unnecessary to prove such fact where it is admitted.
    3. Garnishment — deposit in lieu of garnished fund. — Where a defendant filed a bond to secure the release of a garnished fund, and subsequently deposited in the registry of the court a sum of money equivalent to that fund, such sum will be treated as in lieu thereof.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.
    STATEMENT OF FACTS.
    R. B. Garrett, receiver of the First National Bank of Judsonia, 'brought suit by attachment against the Big Bend Plantation Company, a corporation duly organized under the laws of the State of Arkansas, and as grounds for the attachment alleged that said corporation was disposing* of its property with the intention of delaying and hindering the plaintiff in the collection of his debt.
    A writ of garnishment was issued against the Bald Knob State Bank, alleging that it had in its possession money belonging to the said corporation.
    The garnishee filed an answer in which it admitted that it was indebted to the Big Bend Plantation Company in the sum of $1105.69. Avery M. Blount intervened in the action, and asked that the money garnished be turned over to him, as receiver for the Big Bend Plantation Company, which had been adjudged a bankrupt by the federal court.
    On the trial, it was shown that, at the time the garnishment was issued, a bond was given, and the Big Bend Plantation Company drew the money out of the bank. Subsequently the Big Bend Plantation Company deposited in the bank $1105.69 to procure the release of the bond, and the bank paid that money to the circuit clerk anf! authorized him r°l°ase the bond. This was sometime before the Big Bend Plantation Company went into bankruptcy. The writ of garnishment was issued on Aug. 19, 1920, and the answer of the garnishee was filed on September 11, 1920.
    According- to the testimony of Avery M. Blount, the Big Bend Plantation Company filed a petition in bankruptcy on the 4th day of December, 1920. We quote from his testimony the following:
    Q. Has the Big’ Bend Plantation Company been adjudged a bankrupt?
    A. They have.
    (We object to that because they cannot prove it in that way).
    A. I have the original record.
    Q. Do you know what date the petition was filed?
    A. Yes, sir, I know the date.
    Q. What date was it?
    A. Dec. 4, 1920.
    Q. Has the Big Bend Plantation been adjudged a bankrupt?
    A. Yes, sir.
    I- object to it.
    The objection is sustained.
    Note the exception.
    Q. Do you know whether or not the Big Bend Plantation had been adjudged a bankrupt?
    We object, it is a matter of record.
    The objection is sustained.
    Note the exception.
    Mr. Barber: “I want to call the court’s attention to the fact that when this question came up last Monday the attorneys admitted that the voluntary petition bad been filed and that the Big Bend Plantation Company had been adjudged a bankrupt.”
    Mr. Brundidge: “That may be true, and I guess they have been adjudged a bankrupt, but we object to that way of proving it. ’ ’
    The circuit court found that the garnishment proceedings in this cause were commenced within four months prior,to the filing of the petition in bankruptcy against the defendant, Big Bend Plantation Company, and that the Big Bend Plantation Company was duly adjudged a bankrupt in the Federal court.
    The court further found that the garnishee, the Bald Knob State Bank, had turned over to the clerk of the circuit court $1105.69 belonging to the Big Bend Plantation Company. Judgment was rendered turning it over to Avery M. Blount, receiver of the Big Bend Plantation Company, bankrupt, in the Federal court.
    The case is here on appeal.

      Bnmdidge & Neelly, for appellant.
    Appellee was not insolvent at the time of the filing of the suit and issuing of attachment and garnishment, and the fact that it was placed in involuntary bankruptcy just a few days before the expiration of the four months period, would not avail the appellee anything unless it can be shown that the 'company was insolvent at the time of the filing of the suit in the circuit court. 7 C. J. 197; 227 Fed. 975 and cases cited; 260 Fed. 93 and cases cited.

      Rogers, Barber S Henry, for appellee.
    This is a case for the bankruptcy courts. 2 Remington on Bankrupty, § 1599. Where the possession of the State court has created a lien by legal proceedings within four months of the bankruptcy and while the debtor is insolvent, the State court does not retain jurisdiction. Remington on Bankruptcy, Vol. 2, § 1500, also § 1461; 2 A. B. R. 97; 3 A. B. R. 283; 115 Fed. 906.
   Hart, J.,

(after stating the facts).

Sec. 67f of the Bankrupt Act of 1898 provides:

“That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall'be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on clue notice, order that the right under such levy, judgment, attachment, or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustees for the benefit of the estate as aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect. Provided, that nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry.”

In the case of Clarke v. Larremore, 188 U. S. 486, it was contended that, inasmuch as the sheriff had sold the goods levied upon before filing the petition in bankruptcy, the proceeds of the sale were the property of the plaintiff in execution, and not of the bankrupt at the time of the adjudication, and that the trustee therefore had no title to the same. The contention involved the construction of the section of the bankruptcy act quoted above.

Mr. Justice Brewer in construing the section, and disposing of the contention made, said: null and void from its inception. Further, the statute provides that ‘the property affected by’ — not the property subject to — the lien is wholly discharged and released therefrom. It is true that the stock and fixtures, the property originally belonging to the bankrupt, had been sold, but having, so far as the record shows, passed to a bona fide purchaser for value,’ it remained by virtue of the last clause of the section the property of the purchaser, unaffected by the bankruptcy proceedings. But the money received by the sheriff took the place of that property.”

‘ ‘ This contention cannot be sustained. The judgment in favor of petitioner against Kenney was not like that in Metcalf v. Barker, 187 U. S. 165, one giving effect to a lien theretofore existing, but one'which with the levy of an execution issued thereon created the lien; and, as judgment, execution and levy were all within four months prior-to the filing of the petition in bankruptcy, the lien created thereby became null and void on the adjudication of bankruptcy. This nullity and invalidity relate back'to the time of the entry of the judgment and affect that and all subsequent proceedings. The language of the statute is not ‘when’ but fin case he is adjudged a bankrupt,’ and the lien obtained through these legal proceedings was by the adjudication rendered

In the application of the rule there announced to the present case, when the Big Bend Plantation Company was adjudged a bankrupt, the bankruptcy statute quoted above operated to nullify and render void the garnishment lien obtained by the plaintiff garnishing the Bald Knob State Bank and to wholly release and discharge the debt due the Big Bend Plantation Company from such .lien. The plaintiff obtained his garnishment lien subject to the lien being defeated if a petition in 'bankruptcy was filed against the defendant, Big Bend Plantation Company, within four months from the date the garnishment lien was obtained and it was adjudicated a bankrupt. In such-cases the invalidity relates back to the inception of the lien, so that, for all purposes, the lien may be said never to have existed.

Therefore it was not necessary to prove that the Big Bend Plantation Company was insolvent at the time the garnishment lien herein was obtained. See 2 Remington on Bankruptcy, (2nd. Ed.) § 1467.

It is admitted that the record shows that the petition in bankruptcy was filed within four months from the time the garnishment lien was obtained, but it is insisted that the record does not show that the Big Bend Plantation Company was adjudged a bankrupt, and that on this account the motion of Avery M. Blount to dismiss should have been overruled. The court expressly found that the Big Bend Plantation Company had been adjudged a bankrupt upon a petition filed in the Federal court, and we are of the opinion that the record fairly supports its finding. We have copied in onr statement of facts the record on this phase of the case. It is true the record of the bankruptcy court was the best evidence of the rendition of the judgment. The record here shows that, upon objection 'being made to the oral testimony of Avery M. Blount, the receiver in bankruptcy, to the effect that the Big Bend Plantation Company had been adjudged a bankrupt, he answered that he had the original record of the bankruptcy court.

The court sustained an objection to the adjudication being proved by oral testimony. The attention of the court was then called to the fact that the question had already been before the court in the ease, and that the attorneys for the plaintiff had admitted that a. voluntary petition in bankruptcy had been filed and that the Big Bend Plantation Company had been adjudged a bankrupt in the Federal court. The attorneys for the plaintiff 'then responded that this might be true. Under this state of the record, it was not necessary to prove the fact again. If it had already been admitted in the case, this avoided the necessity of again proving the fact, and the court might find that an adjudication of bankruptcy had been made in the Federal court. . The record clearly shows that the petition was filed within four months after 'the garnishment lien was obtained. Therefore, the court properly sustained the motion to dismiss filed by the receiver in bankruptcy.

It is further insisted, however, that the judgment should be reversed because the Big Bend Plantation Company had withdrawn and spent the money which was the subject-matter of the garnishment proceedings.

Under the state of the record here presented, it is fairly inferable that the plaintiff in this action deposited $1105.69 with the Bald Knob State Bank to take the place of the bond it had filed when the attachment proceedings were sued on and that, with the consent of the plaintiff, the Bald Knob State Bank deposited this money with the circuit clerk to be paid out under the orders of the court. In short, the parties treated this as the deposit of the money in the registry of the court to be ordered paid by the courl after a judicial ascertainment of the proper person to receive it.

It follows that the judgment must be affirmed.


text:
    Cummins Brothers v. Subiaco Coal Company.
    Opinion delivered October 17, 1921.
    1. Deeds — construction.— A deed must be so construed that all of its parts may be harmonized and may stand together, if the same can be done, and yet carry out the manifest intention of the parties.
    2. Deeds — construction.— To ascertain the intention of the parties, not only must the contents of the deed as a whole be considered, but also the relation of the grantor to the property conveyed.
    3. Guaranty — construction.—On February 19, 1917, plaintiffs conveyed to defendant’s incorporators a one-acre tract of land to be used as a coal tipple. On May 17, 1917, defendant entered into an agreement to guaranty to plaintiff a minimum royalty for coal to be mined under 40 acres of land. On May 14, 1918, plaintiffs conveyed to defendant 4.2 acres of land by description which included the one acre described in the deed of February 19, 1917, reciting that the latter deed is in addition to the former deed conveying the one-acre tract, and for the purpose of conveying the additional land described in the latter deed. Held that the latter deed did not cancel the guaranty agreement.
    4. Appeal and error — necessity op bill of exceptions. — Where a decree itself contains a recital of the testimony as to a certain fact, no bill of exceptions is necessary to bring up such testimony.
    5. Appeal and error — exhibits to pleadings as part op record.— In an equity case, exhibits attached to pleadings become a part of the record, and may be considered on appeal.
    Appeal from Logan Chancery Court, Northern District; J. V, Bou,rlcmd, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    Appellants brought this suit in equity against appellee for the recovery of a sum of money alleged to be due them by appellee as royalty under a coal lease and to cancel a coal lease and deed to one acre of land.

      The facts are as follows: Oil Feb. 19, 1917, appellants, by their deed, conveyed to Jas. P. Hoye and R. B. Chitwood one acre of land in Logan County, Ark., described as follows:
    “Beginning at a point (40) forty feet due east of the center of hoisting shaft sunk by Hoye and Chitwood and running due north (60) sixty feet, thence west to west line of the 40 acres, thence south to a point directly west of the point. One hundred and twenty feet south of the point of beginning, thence east and north to beginning, containing one acre more or less, and which is located in the SW% of the NE)4 of section 23, township 8 north of range 24 west.” Immediately following this description is the following: “It is expressly agreed and understood, that the essence of this conveyance is to facilitate the opening of the mine and conducting mining- operation; and when this land'ceases to be used for this specific purpose for a continuous period of three years, it shall thereupon revert to the within grantors, and this title shall be null and void. This conveyance covers only the surface and gives no title to coal cr mineral.”
    Then follows the habendum clause of the deed. The deed was duly recorded on the day of its execution and filed for record on the 17th day of March, 1917.
    Jas. P. Hoye and R. B. Chitwood organized a corporation called the Subiaco Coal Company, to take over their leases to mine coal on a certain tract of land owned by appellants. On May 17, 1917, Jas. P. Hoye, R. B. Chitwood, and the Subiaco Coal Co., by Jas. P. Hoye, president, entered into the following agreement with appellants, Cummins Brothers:
    “We, the undersigned, hereby agree to' guarantee to the Cummins Brothers, owners of the NW14 of the SE% of sec. 23, township' 8 north, of range 24 west, a mininum royalty of two hundred and fifty dollars per annum, commencing January 1, 1918, until all of the coal under the above-described land is worked out or can be worked at a profit from the shaft to be sunk on land adjoining. The above obligation is made in consideration of a certain tract of land given to us for tipple purposes.”
    On the 14th day of May, 1918, appellant conveyed to the Subiaco Coal Co., for the consideration of $200 recited in the deed, 4.2 acres of land in Logan County, Ark. The land described in the deed also includes the one acre described in the-deed of Feb. 19, 1917. Immediately after the description of the land in the deed is the following :
    “This deed is in addition to former deed executed by the grantors herein to Jas. P. Hoye and R. B. Chitwood on the 19th day of February, 1917, and for the purpose of conveying- the additional land described herein and not described in the deed to Hoye and Chitwood.” Then follows the habendum clause of the deed.
    The complaint alleges that appellee had refused to mine the coal on the forty acres of land leased from appellants and had refused to pay appellants the minimum royalty of $250 per year for the years 1918 and 1919.
    The appellee answered, denying all the material allegations of the complaint, and asked that the 'complaint be dismissed. The lease and deeds above described were made exhibits to the complaint and answer. The decree recites that the parties come by their respective attorneys, and that the cause “is submitted to the court upon the exhibits attached to the pleadings, which were introduced in evidence, and the admission of the parties as to the deed to one acre; and the court being well and sufficiently advised in the premises, doth find the facts to lie that, after the execution by the plaintiffs of the conditional deed conveyed to the defendants the right to use the surface of a certain one acre tract of land described in the deed for mining operations, which became and was the consideration for instrument executed by R. B. Chit-wood and Jas. P. Hoye and Subiaco Coal Co., guaranteeing a minimum royalty of $250 per annum, that the defendants purchased from the plaintiffs an additional tract of land, .and plaintiffs executed and delivered to the defendants their warranty deed conveying- four acres, which is admitted includes the acre mentioned in said conditional deed, for the consideration of $200 paid in cash.”
    The court declared the law to be that the deed conveying- the four acres of land was controlling, and that under it the title to the land including the one acre conveyed by the first deed passed to appellee, and that it was thereby released from its agreement of guarantee to pay a minimum royalty of $250 per annum, which was the only consideration for the first deed of the day of February 19, 1917.
    From the decree entered of record the plaintiffs, who are the appellants in this court, have duly prosecuted their appeal.

      Anthony Hall, for appellant.
    The last deed by appellants to appellee did not release the latter from the obligation of the first deed to pay a minimum royalty.
    A deed must be construed according to the intention of the parties, as manifested by the language of the. whole instrument, but where there is a repugnancy between the granting and habendum clauses, the former will control the latter. 98 Ark. 570; 64 Ark. 240; 93 Ark. 5. The stipulation in the second deed is part of the granting clause.

      Pryor & Miles, for appellee.
    "Where a record in chancery court shows that the ease was determined upon oral as well as written testimony, which oral testimony is not preserved, it is presumed that the court’s finding is supported by such evidence. 92 Ark. 622; 83 Ark.. 424; 98 Ark. 266.
    The language used in a deed will be interpreted most strongly against the grantor. Ill Ark. 220; 53 Ark. 107. To arrive at the meaning of a deed, it is admissible to look to the construction placed on the deed by the parties themselves. 68 Ark. 544.
   Hart, J.,

(after stating the facts). In Jackson v. Lady, 140 Ark. 512, the court held that a deed must be so construed that all of its parts may be harmonized and stand together, if the same can be done, and yet carry out the manifest intention of the parties. The court held further that, to ascertain the intention of the parties, not only must the contents of the deed as a whole be considered, but also the relation of the grantor to the property conveyed.

In the application of this well known rule of construction, we think the decision of the chancellor was wrong. Under the terms of the lease from appellants, appellee became entitled to sink a shaft and mine the coal on a certain forty-acre tract of land of appellants for a certain stipulated period. On the 19th day of February, 1917, appellants conveyed to the grantors of appellee one acre of land to establish a tipple to better mine the coal on said forty-acre tract. In the deed it was expressly stipulated that the object of the conveyance was to facilitate the opening of the coal mine and the conducting of the mining operation on the leased forty-acre tract and that,when the land ceased to be used for this purpose, the title should revert to the grantors.

It further provided that the conveyance only covered the surface of the earth and gave no title to the coal or minerals under the surface. On Máy 17, 1917, appellee and its grantors, Hoye and Chitwood, executed an instrument whereby they guaranteed to appellants a minimum royalty of $250 per annum, commencing . January 1,1918, until all the coal on a certain forty-acre tract is worked out from the shaft to be sunk on the adjoining forty acres.

The agreement also recites that it is made in consideration of a certain tract of land given to the grantors' for tipple purposes. Under this clause it is insisted that this obligation became void when the deed of May 14, 1918, from appellants to appellee was executed. In making this contention, however, counsel have not given full effect to the entire deed conveying the 4.2 acres of land. It is true that the latter deed includes the one-acre tract in the description of the 4.2 acre tract; hut, immediately following the description, the deed recites that it is in addition to the former deed conveying the one-acre tract, and for the purpose of conveying the additional land described in the latter deed and not described in the former deed. Moreover, the deed is a deed in fee simple, and does not contain any clause whereby the land reverts to the grantor when the land ceases to be used for the purpose of opening up the mines and conducting mining operations on the leased premises.

So it will be seen by the latter deed that three additional acres of land are conveyed, and the title to the one-acre tract is granted in fee simple to appellee. There is nothing in the language of the instrument to indicate that it was the intention of the parties to cancel the guaranty agreement whereby the minimum royalty was fixed at $250 per annum. It is true that the guaranty obligation recites that it is made in consideration of the one-acre tract for tipple purposes; but it will be noted .that the second deed, as above stated, grants the fee simple title to the one-acre tract as well as the additional three acres. There is no language in the deed, nor is there anything from the surrounding circumstances, that indicates that it was the intention of the parties’to cancel the. guaranty contract by the execution of the later deed.

On the contrary, when all three instruments are read and considered in the light of each other, we think that it was not the intention of the parties to cancel the guaranty agreement by the execution of the later deed conveying the 4.2 acres of land, and that the chancellor erred in so holding.

But it is insisted that the decree must be affirmed, because it recites that the cause was heard on the pleadings and the attached exhibits and the admission of the parties as to the deed to the one-acre tract. There is no bill of exceptions, and the insistence is, that on this account there is a presumption that the admission of the parties as to the deed to the one-acre tract supports the finding and decree of the court. This would be true if the decree did not recite what the admission of the parties was. The decree specifically recites that the admission was that the warranty deed subsequently executed to the 4.2-acre tract also includes the, one-acre tract mentioned in the first deed. It is well settled that when the decree itself contains a recital of the testimony, no bill of exceptions is necessary. Baucum v. Waters, 125 Ark. 305 and Strode v. Holland, Ante p. 122, and cases cited.

So in the present case, the record itself having recited what the admission as to the one-acre tract was, it was not necessary to bring the facts relating to the admission into the record by bill of exceptions. This being an equity case, the exhibits attached to the pleadings became a part of the record and might be considered as well as the recitation concerning the admission contained in the decree itself.

The decision of the chancellor was based upon the pleadings, the exhibits thereto, and the recital of the decree as to the admission of the parties that the deed to the 4.2 acre tract also included the one-acre tract.

Upon this state of the record the court erred in holding for appellee and in dismissing the complaint of appellants for want of equity.

It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


author: Hast, J.

text:
    Smith v State.
    Opinion delivered October 17, 1921.
    1. Rape — assault—instruction.—Where there was evidence, in a prosecution for assault with intent to rape, tending to prove that defendant' was not guilty of a higher crime than a simple assault, it was error to refuse to give a requested instruction on the crime of simple assault.

      2. Rape — reputation of prosecutrix. — It is only when the defendant in a prosecution for assault with intent to rape attacks the character for chastity of the prosecuting witness that the prossecution may introduce evidence of her reputation for chastity to discredit such testimony.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.

      John Mays, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee.
    The court did not commit any error in refusing to instruct the jury on the lower offenses embraced in the indictment. 49 Ark. 543; 36 Ark. 242; 54 Ark. 336; 13 Ark. 317;'93 Ark. 20; 99 Ark. 648; 120 Ark. 179.
    There was no error in permitting the testimony of Mrs. Niel Phillips to be read to the jury. 58 Ark. 353; 90 Ark. 514; 83 Ark. 272; 16 S. W. 577.
    There was no error in permitting the prosecuting witness to introduce testimony showing her good character and reputation for chastity. 22 B. C. L. Sec. 42, p. 1208, 1209.
   Hast, J.

Huel Smith prosecutes this appeal to reverse a judgment of conviction against him for the crime of assault with intent to rape. Smith was indicted for the crime of assault with intent to rape, and was convicted of the crime, his punishment being fixed by the jury at a term of three years in the State penitentiary.

The first assignment of error is that the judgment should be reversed because the court refused to instruct the jury on the lower offenses embraced in the indictment.

The defendant was indicted for the crime of assault . with intent to commit a rape, and the court fully and fairly instructed the jury on that phase of the case. The court, however, refused to instruct the jury on the crime of simple assault.

The prosecuting witness was between eighteen and nineteen years of age at the time the offense is charged to have been committed. According to her testimony, she was well acquainted with the defendant, and went buggy riding with him on the night in question. The defendant first put his arms around her against Her will and rode in that position- for some distance. She would scream for help when they passed houses, but failed to attract the attention of any one. Finally the defendant stopped the horse, wrapped the buggy lines around the whip, and told her that he intended to have intercourse with her. She resisted him with all her power. He took both of her hands in one of his, pressed her down on the buggy seat, struck her on the face and neck and forced her to yield to his embraces. She resisted him in every man'ner possible. The defendant then proceeded to drive on, and presently she dropped her handkerchief out of the buggy. She asked the defendant to get out of the buggy to get the handkerchief, and, when he did so, the prosecuting witness whipped up the horse and left him. The horse in turning a corner overturned the buggy. The prosecuting witness then scrambled out and went for assistance to a nearby house. In a short time the defendant came there and asked if she wanted to go home with him. She refused to go and telephoned for her relatives to come or send for her. She reported the fact of the assault as soon as she reached the house.

The defendant admitted that he had intercourse with the prosecuting witness on the night in question, but claimed that it was with her consent. He described in detail their- conversation -during the ride, and said that there was no resistance whatever on the part of the prosecuting witness.

Under this state of the record, we think the court erred in refusing to give the instruction. This is not a case where the undisputed evidence shows that the defendant was guilty of the crime of assault with intent to rape or nothing, and the ease does not come within the rule announced in Rogers v. State, 136 Ark. 161.

The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony. According to the testimony of the prosecuting witness, the defendant first put his arms around her and held them there while they rode for some distance, although she screamed for help whenever they passed a house. The defendant did not deny putting his arms around the prose^ cuting witness, but said that she consented thereto. This action of the defendant, as testified to by the prosecuting witness, constituted a simple assault and would warrant the jury in finding him guilty of that offense if it should not believe the subsequent testimony of the prosecuting witness to the effect that the defendant had connection with her forcibly and against her will.

As we have already seen, the jury were the judges of the credibility of the witnesses and might have believed all, or a part of, the testimony of either witness. They might have believed that, under the testimony of the prosecuting witness and of the defendant himself, the latter was guilty of the crime of simple assault, and that he was not guilty of the graver offense. In any event, the defendant had the right to have his theory of the case submitted to the jury; for it cannot be said that the undisputed evidence showed that he was guilty of assault with intent to rape or nothing. Allison v. State, 74 Ark. 444; Bruder v State, 110 Ark. 402; and Hankins v. State, 103 Ark. 28.

It is next insisted that the judgment should be reversed because the trial court erred in permitting the’ State to introduce testimony tending to show the good character of the prosecuting witness for chastity, over his objections.

■ We think counsel for the defendant is correct in this contention. In a prosecution for assault with an intent to rape, the character for chastity of the injured -party may be impeached, not to justify or excuse the offense, but to raise a presumption of her consent. Pleasant v. State, 15 Ark. 624, and Jackson v. State, 92 Ark. 71. It is only when the accused attacks the chastity of the prosecuting witness by evidence of reputation for unchastity that the prosecution may introduce evidence of her reputation for chastity to discredit such testimony. Under-hill on Criminal Evidence (2nd Ed.) § '418, p. 702.

In the present case the defendant did not introduce any evidence as to the reputation of the prosecuting witness for unchastity, or of illicit intercourse on her part. Hence the court erred in admitting the State to prove the reputation of the witness for chastity because her reputation in that respect had not been assailed by the defendant.

It is also insisted that the court erred in permitting to go to the jury the record of the testimony of an absent witness for the State on the examining trial of the defendant. We need not consider this assignment of error. The record shows that the witness was only temporarily ill, -and the question will not likely arise on the retrial of the case.

For the errors in the opinion, the judgment must be reversed and the cause remanded for a new trial.


author: Smith, J.

text:
    Griffith v. Hicks.
    Opinion delivered October 17, 1921.
    1. Account stated — agreement of parties.' — An account stated, under Missouri law, is an account settled between the debtor and creditor in which a sum of money or balance is agreed on and an acknowledgment by one in favor of the other of a balance or sum certain to be due and an express or implied promise to pay the sum by one to the other.
    2. Account stated — agreement of parties. — To constitute an account stated, under Missouri law, the debtor and creditor must both agree to the correctness of the account, and, in addition thereto, the debtor must agree to pay or satisfy the amount agreed upon, and the creditor must agree to accept the payment of the agreed sum in satisfaction of the account.
    3. Account stated — proof.—An account stated, under the Missouri law, may be proved by evidence either direct or circumstantial, as any other fact may be proved, or if the party to whom the account is rendered retains it without objection for an unreasonable length qf time, his so retaining it will justify the inference that he has approved it, and in such case other proof of his acceptance and agreement to pay is not required.
    4. Account stated — conclusiveness.—Where parties have had mutual dealings, and one renders to the other a statement purporting to set forth all the items of indebtedness on the one side and credit on the other, the account so rendered, if not objected to in. a reasonable time, becomes an account stated, and cannot be impeached afterward, except for fraud or mistake.
    5. Account stated — unreasonable delay in making objection.— Where a party to whom a mutual account is rendered delays for more than 20 months before making objection to the other party, he cannot excuse his delay by showing that he. thought he had made objection to a duly authorized agent of the other party, where such supposed agent had no authority to represent the other party.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      John E. Miller and G. E. Tingling, for appellant.
    An account stated is not of itself conclusive but is open to rebuttal by competent testimony. Jones, Commentaries on Evidence, Yol. 2, § 287.
    Whether the balance contained in an account rendered was admitted by the debtor so as to make the account an account stated in a question of fact for the consideration of the jury. Yol. 1 R. C. L. p. 211, § 9.
    The presumption of acquiescence in an account rendered arising from the fact that no objection thereto is made within a reasonable time is not conclusive, but only evidence of an admission, and is, therefore, subject to disproof. Yol. 1 R. C. L. p. 214, § 12; see also page 215, § 13 for rule on question of weight to be given subject under such circumstances, as well as 105 Iowa 488; 67 A. S. R. 306 and 80 Ark, 438. The trial court erred in giving a peremptory instruction to find that the account had become an account stated, as the matter should have been left to the jury. See 80 Ark. 469; 120 Ark. 316; Yol. 1 C. J. p. 680, § 251, also p. 691 § 276, and p. 692 § 277.
    During the time that appellee claims his various fees were accruing, without making any demand therefor, he borrowed money of the appellant, giving his note therefor. This in itself gives rise to the presumption that appellant was not at the time indebted to the appellee. 119 Minn. 441, Ann. Cas. 1914B p. 381.
    J. N. Rachels, for appellee.
    An itemized account, rendered by one and assented to by the other of the parties thereto, becomes an account stated, and as a new cause of action. 47 Ark. 541, 126 S. W. 757; 58 Mo. 83; 79 Mo. 77; .131 Fed. 688; 107 Fed. 881; 108 Fed. 726; 180 S. W. 19; 226 S. W. 610.
    Assent may he given either expressly (verbally or in writing) or impliedly (by compliance or silent acquiescence). 47 Ark. 541; 65 Mo. 661; 129 S. W. 994; 166 S. W. 1126; 184 S. W. 951; 216 S. W. 1009; 21 Wall. 105; 17 Otto 325; 65 Pac. 84; 229 S. W. 833; 185 S. W. 786; 175 S. W. 1140.
    When an account rendered has been assented to, the question of liability is one of law for the court, not one of fact for the jury. 47 Ark. 541; 80 Ark. 469; 19 Mo.. App. 534, etc.
    Whether an account rendered and not objected to within a reasonable time, and not assailed for fraud or mistake has become an account stated is a question of law, not one of fact. 80 Ark. 469 and other authorities cited above.
    An account stated is final and unimpeachable, except for fraud, accident or mistake. 114 Ark. 312; 13 Ark. 609; 21 Ark. 421; 19 Ark. 648; 55 Ark. 155.
    The doctrine of account stated applies to the relationship of attorney and client. 80 Ark. 469; 65 Pac. 84.
   Smith, J.

This is a suit filed by áppellee Hicks against appellant Griffith upon a statement of an account which is alleged to have become an account stated:

Hicks was a resident of this State until 1916, when he removed to St. Louis, where he has since resided. Griffith is also a resident of that city. Hicks was for many years the attorney in this State for Griffith, whose interests here were varied and valuable. The professional relation was mutually satisfactory, and the personal relation was close and cordial, as shown by the. correspondence between the parties offered in evidence.

Griffith is shown to be a man of large affairs, and from time to time loaned Hicks considerable sums of money. One such loan was evidenced by a note dated February 23, 1913, for the sum of $1,781.25, due one year after date. This note was executed jointly by Hicks and one E. A. Robbins, of Searcy, Arkansas.

Finally an estrangement grew up between Hicks and Griffith, and on November 19, 1917, Hicks rendered Griffith what Hicks testified was a complete statement of the account between them, in which he embraced all the items of professional service for which charges had been made, and credited the account with’ payments received and also with the note signed by himself and Robbins. Griffith received the account the day after it was mailed. No objection of any kind to the account was made by him except as hereinafter stated.

Griffith saw Robbins in Searcy and demanded payment of the note, and Robbins communicated that fact to Hicks in July, 1919. When advised of this demand on Robbins, Hicks told Robbins that he would attend to the note, as that was an affair between himself and Griffith, This assurance satisfied Robins, and he gave the matter no further attention. Robbins died in August, 1919, and some months thereafter Griffith filed the note with the administrator of Robbins’ estate for allowance and classification. This proceeding, was had in the probate court of White County, the county in which Bobbins lived and in which the administration on his estate was pending.

On January 5, 1920, which was immediately after Hicks had been advised that the note had been filed as' a claim against Bobbins’ estate, Hicks brought this suit. On January 20, 1920, Griffith filed an answer, denying liability for the items comprising Hicks’ account. At the same time he filed a counterclaim and prayed judgment against Hicks.

In the direct examination of Griffith in the trial from which this appeal comes he was asked if he had talked with any one about the statement he had received from Hicks. He answered that shortly after he got the statement he had a talk with Mr. Cornwell, who was' Hicks’law partner. This conversation occurred in Griffith’s office, where Cornwell had come as the representative of Hicks to discuss a matter of business between Hicks and Griffith, but which had no relation to the items covered in the account which Hicks had mailed to Griffith. Griffith was asked: “What, if anything, did Cornwell represent to you about the contract; I mean about the statement, and about the amount due or claimed to be due Mr. Hicks?” An objection to this question was sustained. Griffith was further asked: “Did Cornwell come there to see you as the representative of Hicks ? ” And, also: “Did Cornwell state to you that he wanted to talk to you about the account which Hicks had rendered to you?” Objections were sustained to both these questions. Thereupon Griffith offered to show that “Mr. Cornwell, the law partner of Mr. Hicks, came to see Mr. Griffith about the account, and asked to talk to him about it, and at that time he denied owing Mr. Hicks anything on the items charged to him. ’ ’

This offer of proof was by the court refused, and Griffith excepted.

Griffith gave testimony sufficient to raise an issue for the jury as to the correctness of Hicks’ account, if the account was not in fact an account stated.

Hicks denied that Cornwell had any authority to represent or act for him in adjusting or settling his account against Griffith.

The court directed the jury to return a verdict in favor of Hicks, and this appeal is prosecuted to review that action.

The statement of the account was mailed and received in Missouri, and we must, therefore, look to the law of that State to determine whether the account became stated. The case of Bloss v. Aurora Milling Co., 229 S.W. 833, is said to be the latest expression of an appellate court of that State on the question of an account stated. This decision is by the Springfield Court of Appeals, and, in defining an account stated, the court quotes from the case of Powell v. Pacific R. R., 65 Mo. 658, the following language of the Supreme Court of that State: “An account settled between the debtor and creditor therein in which a sum of money or balance is agreed on and an acknowledgment by one in favor o'f the other of a balance or sum certain to be due and an express or implied promise to pay the sum by one to the other.” Continuing, Cox, P. J., speaking for the court, said:

“To constitute an account stated, the debtor and creditor must both agree to the correctness of the account, and in addition thereto the debtor must agree to pay or satisfy the amount agreed upon and the creditor must agree to accept the payment of the agreed sum in satisfaction of the account.
“The agreement may be proven by evidence either direct or circumstantial as any other fact may be proven, or, if the party to whom the account is rendered retains it without objection for an unreasonable length of time, his so retaining it will justify the inference that he has approved it, and in such a case other proof of his acceptance and agreement to pay is not required. Kenneth Inv. Co. v. Bank, 96 Mo. App. 125, 135; 70 S. W. 173; Mo. Pacific Ry. Co. v. Coombs & Bro. Com. Co., 71 Mo. App. 299.”

Under this test, the majority are of the opinion that the account rendered became an account stated for the following’ reasons.

Where parties have had mutual dealings, and one renders to the other a statement, purporting to set forth all the items of indebtedness on the one side and credit on the other, the account so rendered, if not objected to in a reasonable time, becomes an account stated, and cannot afterwards be impeached, except for fraud or mistake Lawrence v. Ellsworth, 41 Ark. 502, and Dunavant v. Fields, 68 Ark. 534.

The law requires an objection within a reasonable time. The retention of the account apparently beyond a reasonable time is open to explanation, and Griffith might have explained his waiting for a time by showing that he thought the law partner of Hicks was the latter’s agent in the premises. The objection, however, must be something more than a mental operation on the part of the person receiving the account. The objection must be made to the party rendering the account, or his duly authorized agent. Hence Griffith could not excuse his delay of two years in failing to object to the account by showing that ho thought he had made objection to a duly authorized agent of Hicks.

In determining what was a reasonable time within which to object, the court might permit Griffith to explain the delay by showing that he-made objection to Hicks’ law partner thinking he was Hicks’ agent. He could not excuse himself indefinitely on this account. It was his duty to scertaiu the authority of Hicks’ law partner in the premises within a reasonable time, and he could not retain the account for twenty months without objection and excuse his delay by showing that he thought he had objected to a duly authorized agent of Hicks. This would be to allow his mental attitude in the premises to govern and would excuse the communication of his objection to the other party for an indefinite length of time. This is not the law. The objection must be made to the party rendering the account, or his duly authorized agent, within a reasonable time.

It is the opinion of the Chief Justice and the writer that the excluded testimony of Griffith should have been admitted; that the actual agency and authority of 'Corn-well is not of controlling importance. An account rendered becomes an account stated only by the admission of its correctness by the debtor. This admission may be made expressly or it may arise by implication from the circumstances of the case. But an account cannot become an account stated unless the debtor, expressly or by implication, admits its correctness. The proper inquiry, therefore, is, what did Griffith do? Was his conduct such as that it must be said that he has impliedly assented to the correctness of the account? The assent of the debtor is ordinarily implied from the length of time during which the account is retained by the debtor without objection made. The courts, therefore, hold that the debtor may show any fact or circumstance which repels the implication that he has assented to the correctness of the account.

So here we think the question of Griffith’s assent was for the jury. In determining whether Griffith has, by implication, assented, we view the circumstances from his perspective, for it is his acquiescence or non-acquiescence that we seek to determine. Did he believe, and was it reasonable for him to believe, that, in his conversation with Cornwell, the law partner of Hicks, he liad denied liability, it being borne in mind that Griffith supposed that Cornwell had been sent to him by Hicks to discuss the account, and. that no further communication between Hicks and Griffith occurred after the receipt of the account through the mails and Griffith’s repudiation of liability for any of the items covered by it fin his conversation with Cornwell? Or, to state the proposition conversely, must we say, as a mat ter of law, that, because of the lapse of time herein shown, Griffith must be held to have assented to the correctness of the account, notwithstanding his denial of liability to Cornwell and the absence of any further communication on the subject from Hicks? We think the question of Griffith’s assent, is one of fact which should have been submitted to the jury.

As has been said, Griffith gave testimony questioning the accuracy both of the charges and credits on Hicks’ account; but if the account is, in fact, an account stated, these last questions pass out of the case.

As before stated, the majority are of the opinion that the account rendered became.an account stated. The judgment is therefore affirmed.


text:
    Owens v. State.
    Opinion delivered October 17, 1921.
    1. Criminal law — remark op judge. — In a prosecution for assault with intent to kill, in which it was an important point in the inquiry as to the distance between parties when defendant began to shoot, a witness testified that defendant was something like fifteen feet from the boys when he began to shoot, and, upon objection to such testimony, the court directed him to give the indications and let the jury draw the conclusions, and the witness was then asked whether he examined the place as to the tracks of defendant, whereupon the court said: “If you found tracks there, it will be all right.” Held not objectionable as an expression of opinion as to the weight of the testimony.
    2. Homicide — instruction as to malice.— In a prosecution for assault with intent to kill, an instruction that “where no considerable provocation appears and a deadly weapon is used malice is implied,” held not erroneous.
    3. Homicide — assault with intent to kill — instruction.—Where the testimony in a prosecution for assault with intent to kill presented no issue as to the lesser grades of assault, it was not error to -refuse an instruction upon such lower grades.
    Appeal from Little River Circuit Court; James 8. Steele, Judge;
    affirmed.

      A. D. DuLcmey and John J. DuLcmey, for appellant..
    The inferences to he drawn from the facts are for the jury. 91 Ark. 427.
    Instruction No. 1 is abstractly correct, but the court should have defined murder. Instruction No. 3 should not have been given; there was'no testimony to show that he shot with intent to kill. 141 Ark. 13; 84 Ark. 545. The intention to take life cannot be implied in a case of assault simply because a deadly weapon is used. 115 Ark. 572. Such intent must be proved. 34 Ark. 275; 54 Ark. 285. The court should have defined murder. 74 Ark. 451; 52 Ark. 571; 109 Ark. 423.
    J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellants.
    Instruction No. 1 given by the court is based on O. & M. Digest, § 2335, and is correct..
    The law raises the presumption of malice from an unlawful attempt to take life. 82 Ark. 540; 96 Ark. 52.
    If appellant desires a certain issue to be submitted to the jury, he should submit certain instructions. 110 Ark. 567; 109 Ark. 420; 129 Ark. 324.
   Smith, J.

Appellant Owens was given a sentence of three years in the penitentiary upon a charge of assault with intent to kill, alleged, to have been committed by shooting at one Jimmie McDowell.

The testimony on the part of the State showed that Owens and McDowell had cursed each other, following a conversation in regard to a check which Owens had given McDowell’s father and which had not been paid on presentation at. the bank on which it was drawn, and that between ten and eleven o’clock a few nights later McDowell and his brother met Owens in the road, that they spoke as they passed — thus showing their recognition of each other — and that when they had passed and were a short distance apart Owens commenced firing at them and fired his pistol three or four times in rapid succession. Owens was walking, and the McDowell boys were riding, and when the firing commenced they spurred their horses and ran as fast as the horses could go down the road, but they testified they heard the bullets hit the ground around them.

Owens admitted firing the shots, but. denied that he was shooting at the McDowell boys. He testified that just as the boys passed him he saw an opossum and commenced shooting at it.

The McDowell boys reported the incident to their father upon their arrival home.. The sheriff was notified, and the testimony is that, in attempting to arrest Owens, an exchange of shots occurred between Owens and the sheriff, and Owens escaped. The following day Owens was arrested, and at this trial denied that he had shot at the sheriff.

G. W. McDowell, the father of the boys at whom Owens was accused of having shot, went to the scene of the alleged shooting, and there found some empty cartridges. He was asked, “State to the jury what you found.” And answered, “He (Owens) was something like fifteen feet from the boys when he was doing the shooting.” Objection was made; whereupon the court said, “Give the indications, Mr. McDowell, and let the jury draw the conclusions.” The witness was then asked, “Did you examine the place as to the tracks of Will Owens?” In overruling an objection to this question, the court said, “If you found tracks there, it will be all right.” The witness then answered: “There was bis tracks where he stopped and turned around in the road, and it was something like fifteen feet from where these horses commenced jumping.”

It is insisted that this answer of the witness, in connection with the ruling of the court, constituted an expression by the court upon the weight of the testimony and amounted to an expression of opinion by the court upon a disputed question of fact! The objection made to the testimony at the time it was given was that the question and answer assumed the tracks were made by Owens.

It is not denied that Owens made the tracks there, and the important point in the inquiry was to determine the distance from the place where the empty cartridges were found to the point where the stride of the horses increased, the purpose being, of course, to show the distance between the parties when the shooting commenced. It is undisputed that the horses jumped when the shooting began, and that they ran for some distance down the road. The court had, just immediately before this question was asked, admonished the witness himself to give the indications and let the jury draw the conclusions ; and we think the remark of the court set out above is not open to the objection now made to it. •

Over the defendant’s objection the court gave an instruction reading as follows:

“You are instructed, if you find from the testimony in this case, beyond a reasonable doubt, that Will Owens shot at Jimmie McDowell with intent to kill him, because McDowell had cursed him or used abusive or threatening .language, or because he was mad at him, you will convict defendant of assault to kill.”

Objection to this instruction is made upon the ground that it is not predicated, upon the testimony. This objection is well taken if we accept as undisputed the. statement of Owens that he was not mad at McDowell, and had not cursed him, and did not shoot at him; but the testimony presents this issue of fact. The testimony of McDowell is sufficient to support a finding of the facts stated hypothetically in the instruction.

Another instruction given over the defendant's objection'was numbered 4, and reads as follows: “You are instructed that, while it is necessary that you find the defendant had malice at the time of his shooting, you are further told, where no considerable provocation appears and a deadly weapon is used, malice is implied.”

It is contended that it was not proper for the court to tell the jury that as a matter of law simply because a deadly weapon was used the defendant had malice and tlie jury could imply it. It will be observed that the instruction is more comprehensive than the objection to it would indicate. The instruction does not say that malice is implied from the use of a deadly weapon, but that “where no considerable provocation appears and a deadly weapon is used, malice is implied.

However, the absence of that qualification under the issues here joined would' not call for the reversal of the judgment. No provocation or justification was claimed. The defense was that Owens had not fired at McDowell, and the case went to the jury on that issue.

In the case of Taylor v. State, 82 Ark. 540, the court had before it for review an instruction very similar to the one here objected to. Mr. Justice Riddick, speaking for the court, said: “This instruction would be very objectionable if there were any circumstances that tended to justify or excuse the act of the defendant. To constitute the crime of assault with intent to kill, the assault must have been made with malice aforethought. But this instruction tells the jury that, if the defendant shot at Marsh with intent to kill him, they should convict him of the crime of assault with intent to kill, omitting any reference to malice. This would be unwise and prejudicial if there was anything to rebut the presumption of malice which arises from an assault with a deadly weapon with the intent to take life. If death had resulted from the act of the defendant, it is plain under our statute that the defendant would, as the evidence stands in the record, have been guilty of murder, for there is nothing in the evidence to justify or excuse the act. In a case of that kind the court does not have to submit the question to the jury of whether there was malice or not for the law raises it from the unexplained attempt to take life, as, under the facts in this case, if the jury found that the defendant shot at Marsh with intent to kill him, it was their duty to convict, and the instruction was correct. Kirby’s Digest, sec. 1765.”

It is finally insisted that the court erred in refusing to charge upon the lesser grades of assault included in the indictment. But we think that error was not thus committed, for the reason that the testimony presented no such issue. Appellant either shot at Jim McDowell or he shot at the opossum. If he shot at McDowell intending to kill him, he was guilty of ah assault with intent to kill, although his aim was bad, and no physical injury was inflicted; if he shot at the opossum, he was not guilty of any grade of assault. This issue was properly submitted to the jury, and it was not error therefore to refuse to charge on the lesser grades of assault.

No error appearing, the judgment is affirmed.


author: Humphries, J.

text:
    Dallas v. Moseley
    Opinion delivered October 17, 1921.
    1. Frauds — statute op — employment op agent to sell lands. — A contract for the employment of an agent to find a purchaser of land is not within the statute of frauds.
    2. Pleading — demurrer.—A demurrer to an answer relates back to the complaint.
    3. Brokers — duty toward principal. — In an action by a principal against his agent to recover a sum received by the agent as part payment on the purchase price of certain land, an answer which admitted that the agent received such payment, but alleged that the sale was not consummated, and that it was agreed between the agent and the purchaser that such part payment should be retained by the agent as compensation for his trouble in case the sale was not consummated, was demurrable.
    4. Principal and agent — accounting.—It is the duty of an agent to account for money of his principal- received by him.
    Appeal from G-arland Circuit Court; Scott Wood, Judge;
    affirmed.

      A. Curl, for appellant.
    Equity will enforce performance of a verbal contract for the purchase of land where the purchaser has taken possession thereunder, and made improvements. 1 Ark. 391; 63 Ark. 100; 109 Ark. 310.

      Galvin T. Cotham, for appellee.

      The first duty of an agent is loyalty to his principal. He must account for funds received by him for his principal. 21 R. C. L. 829, 832, 833; 27 Cyc. 849.
    The defense of the statute of frauds cannot be raised by demurrer. 25 R». C. L. 23 Ark. 594. A contract employing an agent to sell land is not within the statute of frauds. 87 Ark. 221; 83 Ark. 202; 90 Ark. 301; 102 Ark. 377; 98 Ark. 10. ,
   Humphries, J.

This is an appeal from the judgment of the Gfarland Circuit Court rendered on the pleadings in the case. The court overruled the demurrer of appellant to the complaint, and sustained appellees’ demurrer to appellant’s answer. Appellant stood upon his answer, and, on his refusing to plead further, the court rendered a judgment against him for $200, which had been received by appellant as part payment on the purchase price for certain laud.

The gist of the complaint is that appellee, owner of the south half of the west half of the southwest quarter of section 12, township 3 south, range 20 west, listed it with appellant, a real estate dealer, for sale at the price of $4500, $500. of which was to be paid in cash as part payment on the purchase price of said property to bind the trade, agreeing to pay appellant as a commission for effecting the sale the sum of $300; that pursuant to the agreement a sale was effected to a Mr. Wood, from Houston, Texas, who paid appellant $200 as part of the purchase price, for the use of the appellee, agreeing to pay the remainder of the purchase price as soon as he could move from Texas to Arkansas: that a week or two later appellant informed appellee that Wood, the prospective purchaser, declined to consummate the deal and pay the balance of the purchase price; that thereupon appellee requested appellant to pay him the sum of $200 which he had received as par:; of the purchase price for said land to bind the trade, but that appellant refused to pay said sum to him, wrongfully converting the same to his own use.

The gist of the answer was that Mr. Wood verbally agreed to purchase the property through appellant, the agent, from appellee for $4500; that Wood paid appellant $200 with the understanding and agreement between Wood and appellant that, if Wood failed to pay for the place and take it, the $200 was to be the compensation of appellant for trouble and expense incurred in the transaction; that Wood failed to pay the $4500, and that no sale was consummated, and for that reason .appellant had not received the sum of $200, or any other amount, for the use and benefit of appellee. The answer also embraced a plea that the entire transaction was not in writing, and was therefore void under the statute of frauds.

The ground of demurrer to the complaint was that the facts stated therein did not constitute a cause of action.

The ground of the demurrer to the answer was that the i acts stated therein did not constitute a defense to the allegations of the complaint.

Appellant first contends that the court erred in rendering judgment in favor of appellee against appellant because the alleged agreement between appellee and appellant in the complaint related to the sale of a piece of real estate and, not being in writing, was void under the statute of frauds. Appellant insists that nobody was bound by the alleged oral agreement, and for that reason no rights or liabilities in favor of or against either party could grow out of the agreement. We do not think the statute of frauds applicable to contracts for the sale of real estate by a broker to third parties for the owners of land.

This court said, in the case of Kempner v. Gans, 87 Ark. 221, that “a contract employing an agent to find a purchaser for lands is not within the statute of frauds.” This doctrine has been re-announced and adhered, to in later cases. Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301; Vaught v. Paddock, 98 Ark. 10; Barr v. Johnson, 102 Ark. 377.

Appellant also contends that the court erred in overruling the demurrer to the complaint, and sustaining the demurrer to the answer. '

The demurrer to the answer relates back to the complaint, and we find no sufficient denial of the allegations of the complaint to the effect that appellant was acting in the capacity of agent for appellee to sell the tract of land in question upon terms therein specified, and that the $200 sued for was received by appellant as part payment of the purchase price for the land by Wood. It is true the answer denies that the initial payment was made to appellant for thb benefit of appellee, but this denial is limited by an explanation which does not negative the. allegations in the complaint' that it was received for appellee’s.benefit. The explanation is that, under and by virtue of side agreement between appellant, appellee’s agent, and Wood, the purchaser, the $200, in the event the.sale was not consummated by the payment of the balance of the purchase money, should be regarded as compensation of appellant for the trouble and expense incurred by him in the transaction. Appellee was not apprised of any such agreement nor a party to it. It could in nowise bind him.

The gravamen of the complaint was an allegation to the effect that an agency was created for the sale of lands. The sufficiency of the answer to the issues tendered must be determined by the rules governing principal and agent in contracts for, the sale of lands.

It was alleged in the answer that' the initial payment of $200 was received by appellant as a forfeit for his personal use by way of reimbursement if the sale was not consummated. It was' not alleged that appellee knew anything about this arrangement or authorized it. Under the rules of principal and agent such an agreement was beyond the authority conferred by appellee on appellant.

Loyalty is one of the first duties an agent owes to his principal. An arrangement such as is pleaded in the answer between tbe agent and the purchaser, without the knowledge and consent of appellee, could not be regarded as loyalty of the agent to the landowner.

The rule is well expressed in the text in Ruling Case Law, vol. 21, p. 828. It is said there: “In the exercise of good faith, skill and diligence, the agent is bound to keep his principal informed of all matters that may come to his knowledge concerning the principal’s rights and interests. For example, if, after receiving instructions to sell property on certain specified terms, the agent learns that other and more advantageous terms can be obtained, it is his plain duty, and he is under every legal and moral obligation to communicate the facts to the principal, that he may act advisedly in the premises.”

The following enunciation at page 829 of the same work is applicable: “The doctrine is familiar that an agent cannot, either directly or indirectly, have an interest in the sale of the property of his principal which is within the scope of his agency, without the consent of his principal, freely given, after full knowledge of every matter known to the agent which might affect the principal. ’ ’

The matter pleaded by way of defense to the allegations in the complaint was not and could not constitute a defense without full knowledge and consent of the appellee. Knowledge and consent on the part of the appellee was not pleaded. Under the pleadings as framed, therefore, the $200 received could have been received for no other purpose than the use and benefit of appellee. Under the allegations, it was not proper for appellant to appropriate the amount paid. It was his duty to account for it to his principal. It is the duty of an agent to account for money received by him for his principal. 21 R. C. L. p. 832.

The allegations in the answer not being sufficient to meet the issue tendered in the complaint, it was proper to sustain a demurrer to the answer. We think the allegations of the complaint constituted a cause of action, and it was therefore proper to overrule the demurrer to the complaint.

No error having been committed by the court in its rulings on the demurrers, nor in the rendition of a judgment against appellant when he stood upon his answer and refused to plead further, the judgment is affirmed.