author: Butler, J.

text:
    City National Bank v. Friedman.
    4-3068
    Opinion delivered July 10, 1933.

      Joseph R. Brown and James B. McDonough, for appellant.

      Cravens, Cravens & Friedman, for appellee.
   Butler, J.

The appellants brought this suit to recover judgment on a promissory note given by Fred Browne and others, and for foreclosure of a mortgage on property in Fort Smith given to secure the same. They also caused a garnishment to be issued on Paving District No. 16, which was served July 13, 1932.

The garnishee answered admitting that it held $123.-60 due Tancred-Browne Realty Company, a corporation of which Fred Browne is president, and $417.55 due Fred Browne individually, but that Lewis Friedman claimed the funds so held. Friedman intervened claiming to have purchased the funds from Fred Browne in his individual capacity and as president of the Tancred-'Browne Realty Company. There was a judgment in his favor from which is this appeal.

The appellants contend that the funds in the hands of the garnishee had never been assigned to the intervener ; that, if there had been an assignment, such assignment was never accepted by the garnishee, and that this want of acceptance rendered the attempted transfer of the funds ineffectual. Appellants also contend that the court erred in refusing to let them establish by the intervener on his cross-examination the fact that at the time of the purported assignment Browne was in serious financial difficulties, and that Friedman was familiar with this condition. They argue that this was proper testimony, and, if admitted, would have established a fraudulent intent or collusion between Browne and Friedman to defeat Browne’s creditors in the collection of their debts. Appellants lastly contend that the court erred in permitting Friedman to testify over the objection of the appellants that the money passing from him to Browne was intended as a purchase price of the funds in the hands of the garnishee, and not as a loan from him to Browne.

The evidence establishes the following facts: Browne was the owner of certain property in Paving District No. 16, and Tancred-Browne Realty Company was also the owner of property therein. They were entitled to a refund. Friedman had made some investigation regarding the refund, and knew the amounts which were due Browne and the realty company. Browne was in need of immediate cash on June 29, 1932, and, acting for himself and the realty company, sold to the appellee, Friedman, claims for a refund from said district for 75 cents on the dollar. This amounted to $400 in cash which Friedman there and then paid Browne. On the same day Browne addressed a letter to the commissioners of the district, attention Henry C. Lane, collector, as follows: “Please pay to Lewis Friedman the amount due me on the refund in the above district.”

On July 2, 1932, Browne called the attention of Friedman to the fact that he had not given him an order for the realty company refund which was included in the purchase made on June 29th. Accordingly Browne addressed another letter to the commissioners, signing it Tancred-Browne Realty Company by Fred Browne, president, as follows: “Please deliver to Lewis Friedman check due us on refund in above district.”

Friedman delivered these two letters to Henry C. Lane, collector and acting secretary of the commission, in the office of the commissioners, who filed them on the same dates they were written. Lane stated that he told Mr. George Dodd, the regular attorney for the city of Fort Smith, about these letters, but that he did not remember the date; that the commission did not have a meeting nntil July 16 but it was his recollection that Dodd was informed of the filing of the letters before the answer of the garnishee was made. He also stated that he told the commissioners of the filing of the orders after they had been filed, but was not able to fix any given time when this information was communicated to them.

Mr. Dodd and Mr. Henderson, one of the commissioners, testified in the case. Dodd stated that he had not heard of Friedman’s claim until after the writs of garnishment were served; that he is the attorney for Paving District No. 16; that he usually attended the meetings of the commissioners, but that they might have had a meeting at which he was not present; that they had never had a meeting at which he was present when they discussed the assignment of the refunds.

Mr. Henderson stated that he had never seen the orders from Fred Browne to the district to pay the refunds to Friedman, and that the orders were never presented at a meeting of the commission prior to the date the garnishment was served; that the orders had not been accepted by him; that some time before the 15th of July, 1932, something was said, “In there one day about an order”; that he had never seen the orders, but knew they had been given, but that they had never been acted on by the board.

At the date of the purchase by Friedman from Browne of the refund, Browne was. in serious financial difficulties. The appellants offered to show by Friedman that he knew of Browne’s financial plight, but the court held this testimony immaterial, and sustained an objection to it.

This is the state of the case upon which the appellant’s contentions are based, and with which we do not agree. The principle governing is stated in Moore & Moore v. Robinson, 35 Ark. at page 297, as follows: “It was not necessary that it should have been accepted by the appellants. To constitute an assignment of a debt, or other chose in action, in equity, no particular form is necessary, and it may be by parol.- Judge Story says: ‘If A, having a debt due to him from B, should order it to be paid to C, the order would amount in equity to an assignment of the debt, and would be enforced in equity, although the debtor had not assented thereto. The same principle would apply to the case of an assignment of a part of such debts. In each case, a trust would be created in favor of the equitable assignee on the fund, and would constitute an equitable lien upon it’.”

In the instant case the evidence is uncontradicted that the transaction between Browne and Friedman was a purchase by the latter of the refund, and the court did not err when it permitted Friedman to so testify, and that it was not a loan, for he was simply stating a fact. The rule stated in Moore v. Robinson, supra, is thus stated in 5 C. J. p. 922, § 83, note 70: “Where draft or order is drawn in favor of a third person for the whole of a particular fund or debt, it will operate as an equitable assignment, *' * * and, after notice of such is communicated to the drawee, it will bind the debt in his hands.” Here it is undisputed that the orders were filed with the secretary of the commission, and this served to give it notice of the assignment of the refund to Friedman, whether the individual commissioners were actually informed of this or not. The only reason for giving any notice of an assignment of a debt to the debtor is to direct him to whom it should be paid and thus protect him from any subsequent claims by the assignor.

We are of the opinion that the court properly held the evidence of Friedman’s knowledge of Browne’s financial condition immaterial, in the. absence of some evidence that the purchase of the refund was only colorable and made with the intent of aiding Browne- in defeating his debts. Wood v. Keith, 60 Ark. 425, 30 S. W. 756. The facts justified the conclusion reached by the trial court, and its decree is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    T. M. Dover Mercantile Company v. Dover.
    4-3079
    Opinion delivered July 10, 1933.

      W. N. Martin and Hardin & Barton, for appellant.

      Abe Collins, for appellees.
   Butler, J.

This suit was instituted against appellant company by J. A. Dover, Mrs. Daisy Morrow, Mrs. Flora Weaver, Mrs. Oza Butler, James Freeman Dover (minor son of F. D. Dover, deceased) and Mrs. Lima Dover, widow of F. D. Dover. They allege that the appellant was indebted to the estate of T. M. Dover, deceased, for two items of $59.20 and $70, arbitrary charges against the Dover estate made under the direction of M. J. Dover, president of the Dover Mercantile Company ; that said company was indebted for $300 rent for the year 1932 on the store building, for the dividends collected on stock of the Berry Dry Goods Company and for the $4,050 received from the sale of the dry goods company stock belonging to said estate, for which they •prayed judgment for the amount of their respective interests therein.

The mercantile company answered denying the allegations of the complaint and averring in effect that the dry goods company stock was a part of the assets of the Dover Mercantile Company; that the items complained of were proper charges, and it was not indebted to the estate for any rent. It further alleged that the plaintiffs had previously sold all of their right, title and interest in the said corporation, and prayed that their complaint be dismissed for want of equity. The facts sufficiently appear in the decree of the trial court as follows: “This cause was submitted to the court for trial and determination upon the complaint with the interrogatories propounded to the defendants by the plaintiff attached thereto, the answer of the defendant, together with its answers to said interrogatories and the amendment to the answer of the defendant, all of which papers are on file herein, upon the deposition of A. T. Berry and upon oral and documentary evidence taken in open court at the time, from a careful consideration of all of which the court finds that T. M. Dover, who formerly resided at Hatfield, in Polk County, Arkansas, departed this life intestate, on the 18th day of February, 1917, leaving surviving him as his sole and only heirs at law, his wife, America Dover, who departed this life in 1927, and the following children: M. J. Dover, Mrs. Dora Carper, Mrs. Dovie Hilton, E. M. Dover and all of the above named plaintiffs, save and except Joseph Freeman Dover and Mrs. Lima Dover, who are the sole surviving heirs at law of F. D. Dover, who was the son of said T. M. Dover, but who has departed this life since the death of said T. M. Dover, and that all of the indebtedness of the estate of said T. M. Dover and F. D. Dover and America Dover, has been fully paid.

“That the defendant corporation, T. M. Dover Mercantile Company, was organized on or about March 1, 1917, by taking over the merchandise, notes and accounts belonging to the estate of the said T. M. Dover to amount of $30,000, which property constituted all of the assets of said corporation, which issued 300 shares of stock of the par value of $100 each, 23 shares of which were issued to each of said children of said T. M. Dover, deceased, and 93 shares of which were issued to said America Dover, widow of the said T. M. Dover, deceased. That at the time of the death of said T. M. Dover, deceased, he was the owner of 120 shares of stock of the par value of $25 each in the Berry-Beall Dry Goods Company of Fort Smith, Arkansas, a corporation, now known as the Berry Dry Goods Company; that said stock in said corporation was never owned by the defendant, T. M. Dover Mercantile Company, but at all times remained the property of said heirs of said T. M. Dover, deceased, but that the defendant, T. M. Dover Mercantile Company, has at all times since its organization acted as the agent or trustee for all of the said heirs at law of said T. M. Dover, deceased, in the handling of said stock in said Berry Dry Goods Company, collecting the dividends thereon and in the collection of rents on property owned by said heirs at law of said T. M. Dover, deceased.
“That on March 10, 1926, said defendant, T. M. Dover Mercantile Company, without any right or authority, had the stock of T. M. Dover, deceased, in said Berry Dry Goods Company transferred to said defendant on the books of said Berry Dry Goods Company, and on April 19, 1928, sold said stock to A. Y. Berry and received therefor the sum of $4,050; that oil February 23, 1926, it collected a dividend on said stock amounting to $240, but has not accounted to any of the plaintiffs herein for their portion of the proceeds collected from the sale of said stock and said dividends, although due. demand has been made therefor, said demand having been made on March 1, 1932; that the plaintiff J. A. Dover did not knowingly treat said items as assets of the defendant; but that the proof is not sufficient to establish the allegations of the complaint that the defendant ever received the other dividends on said stock mentioned therein.
“That on February 15,1929, said defendant charged the heirs at law of said T. M. Dover, deceased, with $59.20 on account of a loss sustained by said corporation on the note and account of one Ola Barnes, to whom it has sold merchandise without any of the said heirs at law of said T. M. Dover being in any way bound therefor; that on February 15,1929, said defendant corporation, also without any right or authority, charged the heirs at law of said T. M. Dover, deceased, with $70 as commission on $700 rent money collected by the defendant for said heirs at law of said T. M. Dover, deceased, $600 of which was rents paid by said corporation on the buildings occupied by it and belonging to said heirs at law of said T. M. Dover, deceased; that both of said last-mentioned charges are arbitrary and unauthorized, and that the plaintiffs herein should have and recover of and from the defendant their portion of said sum of $4,290 collected by the defendant from the sale of said stock in the Berry Dry Goods Company and the dividend collected thereon as well as said sums of $59.20 and said item of $70, together with interest thereon at the rate of 6 per cent, per annum, to this date, amounting to $187.76, making a grand total of principal and interest amounting to $4,606.96.
“That the sum of $300, together with improvements made by the defendant on the store buildings occupied by it was a sufficient rental to be paid by it for said buildings for the year 1932, and that the plaintiffs are not entitled to recover anything on said item.
“That the plaintiff, Mrs. Daisy Morrow, sold all of her interest in the T. M. Dover Mercantile Company and Berry Dry Goods Company to Mrs. Dora Carper, save and except her 1/9 interest in said estate belonging to her mother; that the plaintiff Mrs. Oza Butler, likewise sold all of her interest in said T. M. Dover Mercantile Company and Berry Dry Goods Company, save and except her 1/9 interest in said 1/3' interest of her mother in said property to the plaintiff, J. A. Dover; that the plaintiff, J. A. Dover, still owns all the interest in said estate he has ever owned, together with said interest so purchased from the plaintiff, Mrs. Oza Butler, save and except his stock in T. M. Dover Mercantile Company, or 5/27 of all the amounts involved herein; that the plaintiff, Mrs. Flora Weaver, sold her interest in the real estate belonging to said estate of said T. M. Dover, deceased, and in the T. M. Dover Mercantile Company to M. J. Dover, but has never parted with her interest in the dividends sued for herein, but is not entitled to participate in the amounts allowed herein on said items of $59.20 and $70 because she has sold her interest in said real estate; and that the plaintiff, Mrs. Lima Dover, and Joseph Freeman Dover, still retain all interest in the amounts involved herein which were formerly owned by said F. D. Dover, now deceased:
“It is therefore by the court considered, ordered and decreed that the plaintiffs have of and recover from the defendant, T. M. Dover Mercantile Company, as follows: Mrs. Daisy Morrow the sum of $170.62, Mrs. Oza Butler the sum of $170.62, J. A. Dover the sum of $853.10, Mrs. Flora Weaver the sum of $496.91 and Mrs. Lima Dover and Joseph Freeman Dover the sum of $511.86, all of said sums to bear interest from this date until paid at the rate of 6 per cent, per annum; and that the plaintiffs recover of and from the defendant all the costs of this action, for which let execution issue.
“The plaintiffs and the defendant each duly object and except to each of said orders, rulings and findings of the court, in so far as they are against them, respectively, and pray and are granted an appeal to the Supreme Court. And each side is hereby given 120 days within which to file a bill of éxceptions.

The appellant, T. M. Dover Mercantile Company, first insists that the finding of fact by the chancellor is against the preponderance of the evidence; second, that the plaintiffs are barred by laches and limitation; and, third, that the plaintiffs, and especially A. J. Dover, are estopped from asserting any right to the amounts claimed.

On the question as to the ownership by the Dover Mercantile Company of the dry goods company stock, the principal question in the case, M. J. Dover testified that at all times the dry goods company stock was treated and used as a part of the assets of the Mercantile Company, and that this was with the full knowledge and assent of all the heirs — his mother in her lifetime and his brothers and sisters, including the plaintiffs. He perhaps might have so intended it, but all of the heirs testified that they did not so understand it and presumed that the Mercantile Company was handling the dry goods company stock for the benefit of the estate, just as it was renting the farms and managing the other property left by T. M. Dover which was not included in the corporation formed shortly after his death. It is manifest that M. J. Dover was the guiding spirit in the management of the affairs of the family after the death of the father. He was fully trusted by his mother and by his brothers and sisters, and they relied upon his business experience and ability. We are constrained to think that he, in fact, managed the corporation and the Dover estate with unusual ability, and we find no evidence of any actual fraud intended or practiced by him. Under his guidance the farms were made to produce annually an adequate revenue, and the assets of the corporation more than doubled in value under his administration, having in its treasury on January 1,1928, more cash than the value of its entire assets in the beginning. But it is also apparent that he managed the entire business as if it were his own, without consulting his brothers and sisters, and who, if they had anything at all to do with the business, did just as he bade them.

It is practically undisputed that the dry goods company stock was not included in the assets of the corporation at the time of its formation, hut remained a part of the Dover estate, just as the lands and other property, and the inference is warranted that, in the transfer of the stock to the Mercantile Company and its sale, M. J. Dover was acting purely on his own initiative and without any adequate knowledge on the part of his brothers and sisters of what he did or what his intentions were. Therefore it cannot be said that the finding of the chancellor is against the preponderance of the evidence on the question of the ownership of the Dry Goods Company stock, for the act of M. J. Dover in having the stock transferred in the name of the Dover Mercantile Company and the subsequent sale could not change the ownership without the knowledge and consent of the other heirs, and, if the stock was the property of the estate, then the $240 dividend item was correctly charged against the mercantile company.

M. J. Dover, as president of the mercantile company, attended to all the business of the heirs with respect to their farms. These services were no doubt valuable, but they appear to have been voluntary, and he served without compensation either expected by him or consented to by the heirs. The $70 item as commissions, considering the work he did for the heirs, is not at all unreasonable, the trouble is he had no authority to make this charge. Likewise, as to the item of $59.20, loss sustained on account of one of the tenants, as there was no agreement on their part shown to assume or pay this account, it, too, was an improper charge.

The doctrine of laches invoked by the appellant has no application in this case, for, as pointed out by the appellees, it was not pleaded, as a defense to the action in the trial court. We are also of the opinion that, under the facts which will be discussed on the question of limitation, there was no unreasonable delay or such delay as has prejudiced any of the rights of the appellant.

The contention that the statute of limitation applies and bars plaintiffs ’ action is the one which has given us the most difficulty. After a careful deliberation, we conclude that, under the peculiar facts of this case, it has no application. The chancellor found that the mercantile company had at all times, since its organization, acted as the agent or trustee for the heirs at law of T. M. Dover in handling the stock of the dry goods company, collecting the dividends thereon and collecting rents on the property owned by the said heirs at law. This finding is fully warranted by the testimony, and not only are these the facts, but it is evident the mercantile company not only collected the rents, but managed the farms and other property of the Dover estate.

It is well. settled that one receiving money as an agent for another, or which is to be applied to some particular purpose, is not necessarily a trustee of an express trust within the rule exempting such from the operation of the statute of limitation, but such a trust may arise where the agent assumes, or is given duties and responsibilities beyond those incident to the ordinary relationship of principal and agent, and therefore, while not technically a trustee of an express trust, may become substantially one.

“ An action by a principal against his agent * * * is one of those to which the statute of limitation is applicable unless the agent is something more than a mere agent to conduct business for his principal and remit to him goods or moneys received on his account. * * # But the duties of an agent are often much wider than those above alluded to; he is often more than an agent, and is a trustee, or has duties similar to those of a trustee; and in such case an action against him is not barred by the statute of limitations.” In Re Sharpe, [1892] 1 Ch. Div., p. 168; Commissioners v. Lash, 89 N. C. 159; Oliver v. Hammond, 85 Ga. 323, 11 S. E. 655; Shepherd v. Shepherd’s Estate, 108 Mich. 82, 65 N. W. 580 Dovey v. Shaltz, 104 Neb. 108, 175 N. W. 888.

The corporation began to function in the early part of 1917. None of the girls had any knowledge at all of the conduct of the business. J. A. Dover was about 18 years old and worked as an ordinary clerk in the business for several years until about 1922 when he was given charge of the boohs. The only knowledge he had of the conduct of the business was just what he might gain from the entries he made on the books. He was the one who entered the two items of stock dividends on the books of the company, one to the credit of Mrs. Dover and one to the credit of the mercantile company, and he had an opportunity of knowing of the entry made on the books of the company immediately after the sale of the dry goods company stock, but it is not clear that he realized the significance of these entries or that he knew what they imported. He testified that he did not know just how the dry goods company stock was to be handled. Prom-1917 down to the sale of the dry goods company stock in 1928, annual dividends were remitted to the Dover Mercantile Company, but only two items entered. What became of these dividends is uncertain. There is no contention made that M. J. Dover got them personally and the inference seems to be that they were given to Mrs. Dover, the mother, or used for her convenience. During all this time the Dover Mercantile Company, acting through M. J. Dover, was the continuous general agent and manager of the property of the Dover estate. It was therefore something more than a mere agent and sustained such relation to the heirs as to raise its position from that of a mere agent to one of trusteeship, and thus makes applicable the rule announced in the authorities Cited supra.

We do not overlook the cases cited by the appellants, and especially the case of U. S. F. & G. Co. v. Smith, 103 Ark. 145, 147 S. W. 54, where it was held that the statute of limitations would run against a claim of the, principal for money collected by its agent which said agent had failed to pay over. In that case, however, the agency was not a continuous general agency, nor was the agent clothed with the management of the property of its principal generally, as in the case at bar. In the instant case no cause of action arose in favor of the plaintiffs, the agency being a continuous one, until they became apprised of the fact that the trustee intended to convert the moneys in its hands belonging to the plaintiffs, and this appears not to have been known until demand was made upon it to account for the funds thus held and converted, and the demand was refused.

The observations we have made dispose of the plea of estoppel. Under the circumstances of the case, as they understood the facts to be, the plaintiffs were not required to sooner assert their rights, for they were under no duty to speak until they became apprised of the intention of the mercantile company to convert their funds to its use. Also there is nothing to show that their failure to sooner assert their claims has led to any change for the worse in appellant’s position. Therefore the plaintiffs were not estopped to maintain this action. Geren v. Calderera, 99 Ark. 260, 138 S. W. 335.

The court found that Mrs. Flora Weaver sold her interest in the estate of T. M. Dover, deceased, and in the Dover Mercantile Company, except her interest in the dividend item, to M. J. Dover. In entering the decree for the amount due Mrs. Weaver, this finding of fact was overlooked, and the judgment in her favor should have been for the sum of $165.66. In that respect the decree will be modified.

There was no evidence to show that the mercantile company received any benefits from the annual dividends paid by the dry goods company except one item of $240, and there was evidence that the reduction of rent on the store building was compensated by improvements fnade by the mercantile company. From other circumstances it does not appear equitable to allow interest as claimed by appellees.

The decree will be modified as to the amount adjudged to Mrs. Weaver, and in all else is affirmed.

Johnson, C. J., disqualified and not participating.


author: Smith, J.

text:
    Hampton v. State.
    Crim. 3846
    Opinion delivered September 25, 1933.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellee.
   Smith, J.

At the trial from which this appeal comes appellant sought to challenge, three citizens who were present as veniremen, for the reason that they had been members of a regular panel within two years prior to that date. Appellant had exhausted the challenges allowed him by law, and sought to challenge these veniremen for the reason stated. The court denied his right to do so, and these jurors served at the trial. Appellant was convicted, and has appealed.

The Attorney General has confessed error, upon the authority of the case of Beavers v. State, ante p. 722, 61 S. W. (2d) 1113, in which case we construed act 135 of the Acts of 1931, page 363, entitled,'“An Act to regulate jury service. ” We there held that under this Act of 1931 it was ground for peremptory challenge that a juror had served on a regular panel of a petit jury or of a grand jury within two years next preceding the time he is called for jury service, and that this disqualification for service applied to special jurors as well as to regular jurors.

It is not'service as a special juror which disqualifies. The person rendered ineligible under the Act of 1931 is one who has served on a grand or petit jury during a regular term of court, and this ineligibility continues for two years thereafter, and for that period of time disqualifies for further jury service, either as a regular or as a special juror.

Appellant should have been permitted, therefore, to challenge these jurors, and the confession of error will be sustained, and the judgment is reversed and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Sutton v. State.
    Crim. 3847
    Opinion delivered September 25, 1933.

      Robert Bailey, for appellant.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted by the grand jury of Pope County for killing W. K. Smith, and on the 8th day of April, 1933, was tried upon the charge and convicted of involuntary manslaughter, and as a punishment therefor was adjudged to serve a term of one year in the State penitentiary.

On trial of the cause, the dying declaration of W. K. Smith concerning the tragedy was admitted in evidence over the objection and exception of appellant. The objection to the admission thereof was that neither it nor any of the evidence in the case tended to show that W. K. Smith believed that he was in extremis, and that his death was impending when he made the declaration,

Over the objection and exception of appellant, the trial court submitted the issue to the jury of whether the declaration was made by W. K. Smith under the belief that he was going to die as a result of the wounds he had received at the hands of appellant.

The admission of the declaration and the submission of the issue of whether it was made under belief of impending death is urged by appellant as reversible error.

The. declaration itself contains the following statement: “I realize that I may die from my injuries and make the statement at 9:34 a. m., October 23, 1932.”

The record reflects that, before signing the declaration, Smith never said that he was going to die. or that he expected to die, but, on the contrary, said he was going to do his damndest to get well, and that he was not going to give up until he had to, and that at the time he asked the sheriff for permission to carry a gun. The record also reflects that, when asked if he realized that he was as liable to die as to get well, he replied: “Any damn fool would know that. ”

The rule is that, in order for dying declarations to be admissible as evidence, they must have been made under a sense of impending death, and that they are inadmissible if the declarant at the time had any expectation or hope of recovering. Greenleaf on Evidence, Fifteenth Edition, § 158; Stewart v. State, 148 Ark. 540, 230 S. W. 590.

The undisputed testimony in the instant case reflects that at the time the declaration was made the deceased retained the hope that he might recover, and that he had made up his mind to fight for his life.

The declaration was inadmissible under all the facts and circumstances in the ease.

After the trial judge erroneously admitted the declaration, he should have admitted the testimony to the effect that the declarant, W. K. Smith, had served a term in the penitentiary. His testimony contained in the declaration was subject to impeachment the same as the testimony of any other witness. It is provided by § 4145 of Crawford & Moses’ Digest that: “No person shall be disqualified to testify in any action, civil or criminal, pending in any of tlie courts of this State by reason of having been convicted of any felony or other crime whatsoever, but evidence of his former conviction of any crime by a court of this or any other State or territory of the United States shall be admissible for the purpose of going to his credibility or the weight to be given to his testimony.”

On account of the errors indicated, the judgment is reversed, ánd the cause is remanded for a new trial.


author: Kirby, J.,

text:
    McPherson v. State.
    Crim. 3849
    Opinion delivered September 25, 1933.

      Mark E. Woolsey, for appellant.

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

(after stating the facts). It is uniformly held that a court of record may correct mistakes in its record which did not arise from the judicial acts of the court but from the mistakes of its recording officers. Smith v. Wallis-McKinney Coal Co., 140 Ark. 218, 215 S. W. 385. It is also thoroughly settled that it is within the court’s discretion to enter a nunc pro tunc order correcting the record at a subsequent term in criminal as well as civil cases. Richardson v. State, 169 Ark. 167, 273 S. W. 367; Goddard v. State, 78 Ark. 226, 95 S. W. 476; Bowman v. State, 93 Ark. 168, 129 S. W. 80, and Hydrick v. State, 103 Ark. 4, 145 S. W. 542.

The evidence was ample to justify the court in making the order nunc pro turne sentencing the appellant on the pleas of guilty already long entered, and it does not appear that any discretion was abused in so doing. It was established that appellant had pleaded guilty to the two indictments in question, and it is not necessary to consider the demurrer or any plea of former conviction or the plea that more than two terms of court had elapsed since the return of the indictments without appellant having been brought to trial. The pleas of guilty formerly entered precluded any consideration of the questions attempted to be raised by these three pleas at the time of the rendition of the judgment.

It is true the judgment did not follow until long after the pleas of guilty were entered in these two cases, but the prosecution had not been abandoned nor the cases dismissed, as appears from the testimony, and appellant could not have been prejudiced by the failure of the court to sooner enter judgment and sentence against him. Stocks v. State, 171 Ark. 835, 286 S. W. 975.

Neither was any showing made of abuse of discretion in refusing to allow the defendant to withdraw his pleas of guilty and enter pleas of not guilty to the said indictments. Estes v. State, 180 Ark. 633, 22 S. W. (2d) 36.

It may be that appellant had the impression at the time the pleas of guilty were entered that these two cases against bim would be dismissed or nol' prossed upon entry of judgment in the other seven cases in which pleas of guilty were made, but the evidence herein discloses that there was no such agreement made by the State at the time or any conduct that would warrant such belief on his part, and, there being no error in the record, the testimony being amply sufficient to support the court’s findings, the judgment must be affirmed. It is so ordered.


author: Mehaffy, J.

text:
    Driver v. Driver.
    4-3075
    Opinion delivered September 25, 1933.

      James G. Coston and J. T. Coston, for appellant.

      L. C. B. Young and A. F. Barham, for appellee.
   Mehaffy, J.

The appellant, Janice V. Driver, was the former wife of the appellee, William Walter Driver. She was granted a divorce from him in April, 1929, in Missouri, where she resided at that time.

She thereafter brought suit against him in the chancery court of Mississippi County, Arkansas, for support and maintenance of their child, and the court found that Janice Y. Driver had expended $2,138 for the maintenance and support of the child, and that William Walter Driver had expended $35 for the same purpose.

A decree was rendered in favor of Janice Y. Driver against William Walter Driver for the sum of $1,069, but the court dismissed without prejudice her complaint for future maintenance. An attachment had been issued, and this was dissolved without prejudice. Thereafter an execution was issued on the decree and levied on all the interest of Driver in and to certain property described in the decree.

This action was brought by William Walter Driver and C. C. Bowen, trustee, against the sheriff and Janice V. Driver to enjoin the sale under execution.

The contention of the appellees in this case is that the title to the property is vested in Bowen as trustee, and that Driver has no interest in it subject to execution.

It was alleged by appellees in their complaint that Abner Driver, father of appellee Driver, made a will before his death bequeathing to the said appellee Driver the land in controversy; that the will created a spendthrift trust with the said C. C. Bowen as trustee holding-title to and absolute control and possession of all the property bequeathed by Abner Driver to the appellee Driver; that the court held in the decree in favor of*appellant for $1,069; that this property was not the property of William Walter Driver and not subject to be sold for the payment of his debts; that, notwithstanding this holding of the court, appellant caused execution to be issued and served by the sheriff of Mississippi County, and that the lands were advertised as the property of appellee Driver. It was alleged that Driver had no title and no interest subject to sale for the payment of said judgment or any part thereof.

A temporary restraining order was issued. Appellants filed demurrer to the complaint, and thereafter the appellees filed an amendment to their complaint alleging that the court held in the former suit that the title to the property attached was not in a position that it can be reached by the process of that court, and hence on that ground the attachment was dissolved. Sale was made under the execution. Appellants filed answer to the amended complaint.

The court rendered a decree finding that the title to the land was in C. C. Bowen as trustee and not subject to sale under execution for the debts of said Driver; that the sale was void and constituted a cloud on appellee’s title; that the sale should be vacated and a permanent injunction issued.

The eighth paragraph of the will of Abner Driver is as follows:

“I give and devise to my son, William Walter Driver, and to his heirs the following real estate: East one-half of the southeast quarter of section 23, township 15 north, range 10 east, containing 80 acres, northwest quarter of the southeast quarter of section 23, township 15 north, range 10 east, containing .40 acres and that part of the southeast quarter of the northeast quarter of section 23, township 15 north, range 10 east, lying south of the county road containing 25 acres more or less and known as the Allen, L. M. Richardson and M. N. G-owan and Tom Ray tracts. All debts owed to me by the tenants on the lands set apart to William Walter Driver at the time of my decease shall go to the said William Walter Driver.”

Thereafter Abner Driver made. Codicil No. 2 to his last will and testament, which reads as follows: “I appoint, designate and name C. C. Bowen as trustee for my son, Cooper Driver, to take, have, hold, manage, care for and keep all and singular the property herein willed to Cooper Driver, or that may descend to or be inherited by him from my estate; to keep the same for and during the natural life of said Cooper Driver free from his control, supervision or management.

“And I hereby constitute, designate and appoint C. C. Bowen as trustee for my son, William Walter Driver and my daughter, Ruth Driver Florida, respectively ; to take, receive, manage and control all and singular the property herein devised to each of them, and all other property received and inherited by them from my estate; to keep and control the said property until my said children arrive respectively at the age of 35 years, at which time my said trustee is to give to each of said children, respectively, one-half of his or her property so had, held or received by him and not otherwise disposed of, for his or her necessities during said time by my said trustee. It being my intention to put the said property in trust, free from the control of my said three children, free from any debts, contracts or obligations they may have made or may hereafter make. And it is my intention and desire that the residue and remaining one-half of said estate so willed to my two children, William Walter Driver and Ruth Driver Florida, respectively, shall be and remain in trust for and during the period of their natural lives.
“It is my desire that, in case of the death, resignation, incapacity or refusal of the said C. C. Bowen to act as trustee for my said children or any of them, that the chancery judge of this chancery district shall appoint some discreet, suitable person to act in the room and stead of said C. C. Bowen, and it is my desire that the said C. C. Bowen shall serve in the capacity of such trustee without bond, but that any successor to said C. C. Bowen shall be required by the judge so appointing him to give bond in sufficient sum to protect the property so passing into his hands.
“And I will and desire that my said trustee, C. C. Bowen, or any successor he may have as herein provided for shall have full power to manage, control, collect rents, pay taxes and sell and convey by sufficient deeds any and all property conveyed by this will to any of my said children, at any time he deems for their advantage and to reinvest the proceeds therefrom from time to time in such property or securities as he deems to their advantage and to their best interest, protection and security.
“And my said trustee, C. C. Bowen, and his successor or successors in this trust is directed to pay to each of my said three, children any part or all of the income from the respective property belonging to each for his or her support during the time of this trust, and, if at any time in his judgment it becomes necessary to use part of the property beyond the income that he may sell and dispose of such part as he deems best and pay and deliver the proceeds or a suitable part thereof to any such child or children.
“And I will and desire that should any one of my three said children, Cooper Driver, William Walter Driver and Ruth Driver Florida, die without heirs of their body lawfully begotten that all and singular of the property willed and devised and bequeathed to each or any of them so dying without issue, shall revert to and become • a part of my estate and be classed as a residuary part thereof and descend to my wife, M. E. Driver, if then living and if not living, then to my children then living, in equal parts and to the heirs of such children as may have died, per stirpes and not per capita.
“It is my will and desire, that any property real, personal or mixed, not devised and disposed of in my will, shall descend to and become the absolute property of my wife, M. E. Driver.”

The first question for us to determine is whether paragraph eight of the original will, copied above, is revoked by the codicil.

“The cardinal rule of testamentary construction is to ascertain the intent of the testator and give effect to it, unless the testator attempts to accomplish a purpose, or to make a disposition contrary to some rule of law or public policy. All rules of construction are designed to ascertain and give effect to the intention of the testator.” 28 R. C. L., 211; Lavenue v. Lewis, 185 Ark. 159, 46 S. W. (2d) 649; Fine v. McGowan, 186 Ark. 1035, 57 S. W. (2d) 565; Union Trust Co. v. Madigan, 183 Ark. 159, 35 S. W. (2d) 349; First Nat. Bank of Ft. Smith v. Marre, 183 Ark. 699, 38 S. W. (2d) 14.

The general rule is that a will and codicil are to be regarded as a single and entire instrument for the purpose of determining the testamentary intention and disposition of the testator, and both instruments together will be construed as if they had been executed at the time of the making of the codicil. They will not, however, be considered as a single instrument where a manifest intention requires otherwise. The construction of the provisions contained in a will and codicil may be different from that which may be given to the same provisions all embodied in a will. This is due to the fact that the mere making of a codicil gives rise to the inference of a change in intention, and such an inference does not arise in the case of a will standing by itself. When a will and codicil are inconsistent in their provisions, the codicil, being the last expression of the testator’s desires, is to be given precedence.

A revocation by a codicil of a gift in the will, extends only so far as the will is inconsistent with the codicil. 28 R. C. L. 199.

By the original will William Walter Driver was given the property described in the decree in fee simple. The codicil, which is set out above, is clearly inconsistent with paragraph eight of the original will. The codicil appoints Bowen as trustee and directs him to take, receive, manage and control the property bequeathed to William Walter Driver in the original will, and the testator says in the codicil that it is his intention to put the said property in trust free from the control of his children, and free from debts, contracts, or obligations that they may have made, or may hereafter make. He also says in the codicil that Bowen, the trustee, shall have full power to manage, control, collect rents, pay taxes, and sell and convey by sufficient deeds any and all property conveyed by his will at any time that he, the trustee, deems for their advantage. The codicil also provides that, if one of the children die without heirs of their body, all the property devised and bequeathed to them shall revert to and become a part of his estate, etc.

While it is not stated expressly in the codicil that it is the intention of the testator to revoke paragraph eight of the original will, yet we think that such intention is manifest from the codicil and the language used therein.

The word “take,” in the sense used in the codicil, evidently means to take as trustee, as owner. One is said to take an estate by descent, or by purchase. It means to lay hold of, to seize, to deprive one of possession of, to assume ownership. City of Durham v. Wright, 190 N. C. 568, 130 S. E. 161.

Our Constitution provides that private property shall not be taken,, appropriated or damaged for public use, without just compensation therefor. Taken, as used in the Constitution, means to deprive the . owner of the property, to seize it, and assume ownership.

We think the word “take” as used in the codicil, means the same thing, and that it was the intention of the testator that Bowen, the trustee, should take the property just as Driver himself would have taken it under paragraph eight if the codicil had not been executed. When the entire codicil is read, it seems clear to us that the testator intended to revoke paragraph eight when he executed the codicil. He refers in the codicil to the property willed to his children, but he evidently means the property bequeathed in the original will.

Appellant argues that the case of Bowlin v. Citizens’ Bank Trust Co., 131 Ark. 97, 198 S. W. 288, is not in point because the property in that case was bequeathed direct to the trustee, and appellant says: “If in this case the land had been bequeathed direct to the trustee as in the Bowlin case, instead of merely giving the trustee the power to manage, control, collect, etc., we would not be here contending that the land is subject to execution against Driver.”

If, under the codicil, we are correct in holding that Bowen was to take this property as trustee, and that paragraph eight of the original will was modified to that extent, then the situation ivould be the same as if it had been bequeathed to Bowen as trustee, and we are of opinion that the codicil placed the legal title in Bowen as trustee, and that it cannot be sold under execution. We think the Bowlin case above cited is controlling here.

Numerous authorities are cited and discussed by counsel. We do not review these cases because we hold that the codicil is inconsistent with the original will, and revoked its provisions so far as there is a conflict. It is not necessary that there should be express words of revocation in order that the codicil may revoke the provisions of the original will.

“The provisions of a will may be revoked, when these are legal, in express terms, or by inconsistent or repugnant provisions of a later, with an earlier instrument. The codicil does not, in its terms, revoke the will. The revocation of a will by a codicil because of repugnant provisions is a rule of necessity, and operates only so far as it may effectuate the intention of the testatrix. Revocation is altogether a matter of intent.” Russell v. Hartley, 83 Conn. 654, 78 Atl. 320.
“It does not, however, require an express revocation to make the. intent to revoke clear. It is sufficient that the intent to make a disposition of the estate, which is inconsistent with the prior gift, is made clear as the original gift." Frelinghuysen v. N. Y. Life Ins. & Trust Co., 31 R. I. 150, 77 Atl. 98, A. & E. Ann. Cas. 1912B, 237; Anderson v. Williams, 262 Ill. 308, 104 N. E. 659, A. & E. Ann. Cases, 1915B, 720.

When a will and codicil are inconsistent or repugnant in their provisions, the codicil, being the latest expression of the testator’s desires, is to be given precedence. If the provisions of the will and the codicil are conflicting, the codicil governs. Little Rock v. Lenon, 186 Ark. 460, 54 S. W. (2d) 287.

Since we hold that the. codicil revokes the provisions of the will, we deem it unnecessary to discuss or decide the other questions discussed by counsel.

The decree of the chancery court is affirmed.


text:
    Arkansas Quicksilver Company v. McGhee.
    4-3086
    Opinion delivered September 25, 1933.

      McRae & Tompkins, for appellant.

      J. H. Lookadoo, for appellee.
   Mehaffy, J.

This is an action by an employee, John F. McGhee, to recover damages for personal injuries. which he sustained while employed by the appellant as a helper to the foreman and hammerman. The appellant was at the time operating cinnabar mines in Pike County, Arkansas, for the recovery of quicksilver.

The method of operating was to drill holes in the rock, and shatter and break the rock with charges of dynamite. After these blasts were fired the rock shattered would be collected and loaded on cars to be carried to the smelters. After the blasts were fired, it was necessary for the workmen to clean up and load the shattered rock, and it was often necessary to pry or pick down the broken rock from the face of the wall in which the dynamite had been fired. These workers were called muckers.”

At the time of the injury, the foreman pointed out the pick and told.the appellee to take this pick and knock the rock loose while the foreman filled np the tank. Under the. orders of the foreman, the appellee picked up the pick and started work. The pick had a warped handle, and, while appellee was picking at the crevice, he hit on the side of the. crevice and struck a rock which hit him in the eye. The crooked handle caused him to miss the crevice.

There is no dispute in the evidence about the handle of the pick being warped, and about the foreman directing him to take that particular pick and go to work. There is some conflict in the evidence as to whether this was the correct or usual method of performing this work. Most of the witnesses testified that the usual method was to use a crowbar and prize the rocks out.

The appellee had never used the pick before, did not know that the handle was warped, and had no opportunity to examine, it, but, in obedience to the order of the foreman, immediately took the pick and began to work. Appellee had worked several months as a mucker, cleaning up the loose, rock, but had worked about ten or twelve days helping on the jack hammer.

The sight of the injured eye was impaired, but not destroyed. There was á jury trial, a verdict and judgment for appellee for $10,000, and the case is here on appeal.

Appellant contends that the court should have directed a verdict for it, and states that the appellee testified that there was nothing wrong with the pick. He did not, however, testify that there was nothing wrong with the handle, and all the proof shows that the handle was warped, or crooked.

It is also contended that the appellee testified that the accident was not caused by the negligence of any one else; that no one else caused him to be hurt.

The appellee testified that there was nothing wrong with the pick, but he was asked if the handle was in good condition, and he said it was not. Witness testified that he told Bird that the pick was all right, but that the handle was crooked.

The statement presented to the witness contained the following: “The accident was not caused by the negligence of any one else; that is, no one else caused me to get hurt. I was doing what my driller told me to do when the accident happened.”

After reading this statement to appellee, he was asked if that was correct, and appellee replied: “Yes, sir, I was doing exactly what he told me to do.”

The witness, in his evidence, makes it perfectly plain that the injury was caused by his undertaking to do what the foreman told him to do, and with a pick which had a defective handle, and that this defect in the handle caused him to miss the crevice, and strike the rock which hit him in the eye.

It is contended, however, that the defect in the handle of the pick was open, patent and visible.

Appellant calls attention to numerous authorities to the effect that an employee is bound to take notice of obvious defects, and this is generally true, but this court has not held that, where an employee is ordered by his superior to use a certain tool without any opportunity to observe its condition, he must take notice of a defect like the one in the pick handle. Moreover, the other witnesses that testified that the handle was warped also testified that you could not notice it if you did not look at it specially.

The rule approved by this court in Owosso Mfg. Co. v. Drennan, 182 Ark. 389, 31 S. W. (2d) 762, is as follows:

“One of the first duties of the servant is obedience. £ It is a fundamental of the relation of master and servant that the servant shall yield obedience to the master, and this obedience an employee may properly accord, even when confronted with perils that otherwise should be avoided. In any case, but more plainly when a command is sudden and there is little or no time for refaction and deliberation, the employee may not set up his judgment against that of his recognized superiors; on the contrary, he may rely upon their advice, assurances and commands, notwithstanding many misgivings of his own. It by no means follows that, because he could justify disobedience of the order, he is barred of recovery for injuries received in obeying. He is not required to balance the degree of danger and decide whether it is safe for him to act, but he is relieved in a measure of the usual obligation of exercising vigilance to detect and avoid danger. Ordinarily, he may assume that the employer has superior knowledge and rely thereon, especially when the act -is one that could be made safe by the exercise of special care on the part of the employer. The employee may assume that such care will be taken. Again, it is a psychological truth that employees form a habit of obedience that overcomes independent thought and action, depriving them of power to exercise intelligence that otherwise would protect them’.”

The appellant insists that this was a simple tool, and that the master was under no duty to inspect it. This is the general rule, but applicable only where the employer has exercised ordinary care to furnish tools that are reasonably safe.

This case, so far as this question is concerned, is controlled by the principles announced in Smith v. McEachin, 196 Ark. 1132, 57 S. W. (2d) 1043. The authorities are reviewed in the two cases mentioned, and it would be useless to review them again.

"Whether the master was guilty of negligence in ordering appellee to use the pick with a defective handle, and whether this caused the injury, were questions for the jury, and there is ample evidence to sustain the finding of the jury on these issues.

It is next contended that the court erred in giving certain instructions and in giving conflicting instructions. We do not set out the instructions, but we have very carefully examined them, and have reached the conclusion that there was no error in instructing the jury, and that there- is no conflict in the instructions.

The appellant next contends that the verdict is excessive, and we agree with the appellant in this contention. The evidence shows that the eye was injured, but not destroyed, and that the sight was permanently and seriously impaired. The apnellee was thirty-seven years of age, and there- is no evidence that the impairment of his vision will decrease his earning capacity or prevent him from engaging in any ordinary occupation.

We have therefore concluded that the judgment, should be reduced to $5,000, and affirmed for that amount. It is so ordered.


author: Johnson, C. J.,

text:
    Hooks v. General Transfer & Storage Company.
    4-3038
    Opinion delivered September 25, 1933.

      F. E. West and J. P. Kerby, for appellant.

      Cockrill, Armistead & Rector, for appellee.
   Johnson, C. J.,

(after stating the facts). From the foregoing statement of facts, it is perfectly apparent that there was a sharp conflict in the testimony as to which truck had the right-of-way in the intersection at Main Street and Washington Avenue at the time of the collision. The damage or injuries to the respective trucks caused by the impact was an important circumstance in determining the rate of speed the trucks were making at the time of the collision. It was the contention of the appellee that the impact between the two trucks was slight and caused but little damage. On the other hand, it was the contention of appellant that the impact between the two trucks was great, and that the ice truck was badly damaged by reason of the collision. Appellant further contended, and introduced testimony in support of it, that the impact was of such force as to produce the injury to his back about which he now complains. Some of appellant’s witnesses testified that appellant’s truck was knocked ten feet by the'impact. Other witnesses testified that the steering rod was broken loose from the car and the ice truck was otherwise badly damaged. For the reason aforesaid, one of the main issues to be determined by the jury was the enormity or insignificance of the collision.

One contention for reversal of the case is that the trial court permitted appellee to introduce in testimony photographs of the two trucks taken a week or ten days after the collision and at a time when the damage had been repaired. Appellant objected to the introduction of these photographs at the time, and stated specifically that the trucks were not in the same condition, at the time the photographs were taken that they were immediately after the collision. The trial court overruled this objection and permitted the introduction of the photographs. In doing this the trial court erred, which calls for a reversal of the case.

It is a well-established rule of law that when the situation and surrounding circumstances are subject to change, photographs, to be admissible as evidence, must have been taken at the time of the transaction or before the situation and circumstances have undergone a change.

Section 359, art. “Evidence,” 10 R. C. L., p. 1157, states the rule as follows: “When the situation and surrounding circumstances are subject to change, photographs, to be admissible as evidence, must have been taken at the time of the transaction or before the situation and circumstances have undergone a change.”

According to the uncontradicted testimony in this case, the photographs of the two trucks which were in the collision were not taken until a week or ten days after the collision, and at that time appellant’s ice truck had been fully repaired. We cannot say to what extent the jury may havé been influenced by this incompetent testimony.

The photographs were evidently introduced for the purpose of showing that the trucks were not badly damaged by the collision. If the photographs were introduced for any other purpose, their effect should have been limited by proper instructions by the court.

Other alleged errors are brought forward and insisted upon for a reversal of the case, but we do not deem them of sufficient importance to discuss in this opinion.

For the error indicated, let the judgment of the circuit court be reversed, and the cause be remanded for a new trial.


author: McHaney, J.

text:
    GEISREITER v. STANDARD LUMBER COMPANY.
    4-3082
    Opinion delivered September 25, 1933.

      M. Danaher and Palmer Danaher, for appellant.

      Rowell & Rowell, W. B. Alexander, M. L. Reinberger and Bridges, McGaughy & Bridges, for appellee.
   McHaney, J.

Under date of June 16, 1931, appellants, Mary Gr. Miller and Frank W. Berry, as trustees for appellant S. Greisreiter, leased to K. M. Hall a lot or parcel of land 50 feet north and south by 120 feet east and west, in the northeast corner of block 49, Dexter Harding’s Addition to Pine Bluff, Arkansas, at.a monthly rental of $30, payable July 1, 1931, and on the first day of each month thereafter for a term of five years. The lease contained these clauses, among others:

“The lessee agrees to erect a building upon the land, to be used by him for the sale of ice cream, frozen custards, drinks, cigars, cigarettes and kindred lines, and not to use the premises for any other purpose, without written agreement of lessors. The lessee shall have the right, within thirty days after the expiration of this lease, or its termination otherwise, to remove the building, provided all rent due at'the time, shall have been paid.”

Hall entered into possession and immediately began the erection of the building mentioned in the lease, purchasing certain building material and supplies from appellees, which were actually used in the construction thereof. He failed to pay appellees in full for the material so purchased, and within 90 days from the date of the last item on each of their respective accounts they filed in the office of the circuit clerk affidavits for liens on the building and leasehold interest in the land, describing the property in the affidavit of Standard Lumber Company as “leasehold and building situate on northeast corner of block 49, Dexter Harding’s Addition,” etc., and in the affidavit of Taylor Electric Company as “northeast comer 50 by 120 feet of block 49, Dexter Harding’s Addition, and the building located thereon.” No complaint is made of the description of the land in the affidavit of the other appellee, Barton-Mansfield Company.

Thereafter, on February 2,1932, appellees, Standard Lumber Company and Taylor Electric Company, filed suit in the chancery court to foreclose their liens on the building, the leasehold and the land. Barton-Mansfield Company intervened and sought a foreclosure of its lien. Appellants defended on the grounds hereafter discussed. Hall defaulted in the payment of rent, and on January 5, 1932, appellants brought an unlawful detainer action in the circuit court against him for possession of the property and for judgment for the rent due, which resulted in a judgment in their favor for possession and $120 for rent, and interest on April 20, 1932. Appellees were not made parties to this proceeding, although their affidavits for liens were on file in the proper office.

The decree in this case gave judgment against Hall in favor of appellees for their respective claims which was declared to be a lien upon the building only, prior to the rights of appellants. No lien was fixed upon the leasehold or upon the land itself. This appeal challenges the rights of appellees to a lien on the building.

-The relationship between appellants and Hall was not that of owner and contractor, as appellants contend, but only that of lessors and lessee, and we fail to see how they can get any comfort out of the case of People’s Building & Loan Ass’n v. Leslie Lumber Co., 183 Ark. 800, 38 S. W. (2d) 759. While it is true that we there held that the relationship between the owner of property and the purchaser thereof under an executory contract of sale and purchase, requiring the purchaser to make certain improvements, was that of owner and contractor and not principal and agent (See also Wildwood Amusement Co. v. Stout Lumber Co., 178 Ark. 977, 12 S. W. (2d) 911), it is also true that we held in the same case that, “where a contract for sale of land stipulated that certain improvements should be made, a materialman’s lien was superior to the vendor’s lien for the purchase money,” and that he could not defeat such lien by a stipulation that the vendee should not create any lien on the property. Syllabi 4 and 5.

Here, as we construe the lease, the lessors did not require the lessee to erect the building in question, but consented or stipulated that Hall might do so. The building was to be Hall’s with the right to remove upon termination of the lease with all rents paid. This case is more nearly like that of Hawkins v. Faubel, 182 Ark. 304, 31 S. W. (2d) 401, where we held that the lessor, by merely consenting that the lessee may make certain improvements, does not subject the fee to a mechanic’s lien, but only the leasehold estate. In other words, in order to reach the fee, the contract must be with the owner or his agent. Appellees had no contract with the owners of the fee, appellants, but only with their lessee, who was not their agent. Therefore no notice to appellants was necessary, as the fee was not involved.

Appellants also contend that the descriptions in the affidavits of two appellees (the lumber company and the electric company) were defective. We cannot agree. In Brown v. Turnage Hardware Co., 181 Ark. 606, 26 S. W. (2d) 1114, the late Chief Justice Hart, speaking for the court, said: “We have frequently held that the statute should receive a liberal construction to effectuate its remedial purposes. All that is necessary is that a person of ordinary understanding should be able to find and recognize the premises intended by the description. The mere fact that more land was embraced in the claim filed by appellee under the statute and in the decree rendered by the court will not of itself invalidate the lien; but it will be good to the extent recognized by the statute. It is sufficient that the description points out and indicates the premises so that, by applying it to the land, the structure into which the materials are placed can be found and identified. Arkmo Lbr. Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901; Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; and Georgia State Savings Ass’n v. Marrs, 178 Ark. 18, 9 S. W. (2d) 785.”

A comparison of the descriptions in the affidavits with that in the lease shows that no person could be mistaken about the identity of the property, or at least “a person of ordinary understanding should be able to find and recognize the premises intended by the description. ’ ’ We therefore hold that the descriptions were sufficiently definite, and, as said in the case last cited, “to hold otherwise would subject substance to form, and deny the lien to persons clearly entitled thereto under the,statute.”

It is next urged that the affidavits for liens were not filed in time to cover all the items on the respective accounts. There is no evidence in this record that each separate purchase was made on a separate contract. The accounts themselves show them to be open running accounts, and all the material and supplies for which liens are claimed were purchased within a short space of time. For instance, the Standard Lumber Company furnished material from June 17 to July 2, a period of 15 days, and something was furnished nearly every day. The Electric Company furnished material and labor from June 22 to October 6, and its affidavit for lien was filed October 19, 1931. Barton-Mansfield Company sold material from June 19 to August 12, and its affidavit was filed September 29, 1931.

Under such conditions we have many times held that the 90 days begins to run from the date of the last debit item on the account. Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; Whitener v. Purifoy, 177 Ark. 39, 5 S. W. (2d) 724; Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 288 S. W. 999.

Other incidental questions are argued for a reversal, which we find without merit. Since there is no cross-appeal from the refusal of the court to declare a lien on the leasehold interest, we do not discuss this matter. We find no reversible error, so the decree must be affirmed.


text:
    Gibson v. Moore.
    4-3061
    Opinion delivered October 2, 1933.

      S. V. Neely and R. V. Wheeler, for appellee.

      C. T. Carpenter, for appellant.
   Johnson, C. J.,

(after stating the facts). Section 6074 of Crawford & Moses’ Digest in effect provides, that beneficiaries may be changed in accordance with the laws, rules or regulations of the society. It is perfectly evident that any change of beneficiary in a policy of insurance issued by a fraternal benefit society must be done in substantial compliance with, the constitution and bylaws of such society.

It is perfectly evident that § 212 of the bylaws of the society was not substantially complied with. In effect this bylaw provides that the “surrender clause on the. back of her benefit certificate, designating therein the change desired, and sign the same in the presence of two witnesses, one of whom may be any camp recorder or a notary public or any other person authorized by law to administer oaths.” It is not even contended that the surrender clause on this certificate was executed by the insured.

In behalf of appellant, it is insisted that the purported letter written by the insured requesting the change of beneficiary was a substantial compliance with the constitution and bylaws of the society. The case of Robinson v. Robinson, 121 Ark. 276, 181 S. W. 300, is quoted from in support of this position. The pertinent quotation in this opinion is “the established rule and the one adopted in this State is that the change of beneficiary eannot be made by the insured, unless there is a substantial compliance with the bylaws and regulations of the society.”

No substantial compliance with the bylaws of the society in effecting a change of beneficiary is shown in the instant case. The purported letter written by the insured to the secretary of the local lodge was not acknowledged before any officer and was not signed by the requisite witnesses. The fact is the secretary of the subordinate lodge positively denies receiving any such letter. The rule in the Robinson case is sound, but the facts in the instant case do not come within it.

Again, § 212 of the bylaws further provides “no change in the designation of beneficiaries shall be effected until a substitute certificate has been written by the supreme recorder and within the lifetime of the member, and until such time the old certificate shall be in force. ’ ’ The rule quoted above further provides: ‘ ‘ Any attempt by a member to change the payee of the benefits under her benefit certificate by will or other testamentary document, or by contract, agreement, assignment, or otherwise than by strict compliance with the provisions of this section, shall be absolutely null and void.” According to the record, as we understand it, the only substantial thing done by the insured in reference to effecting a change of beneficiary was to pay the fifty cent fee demanded therefor. This cannot be construed as a substantial compliance with the bylaws referred to. The chancellor was eminently correct in holding that no change of beneficiary .had been effected.

It is next insisted, on behalf of appellant, that the trial court erred in refusing to grant him a continuance of the cause. It is said that S. O. Gibson is a poor man and had no money with which to employ counsel and pay the expense of litigation. This is not cause for a continuance under our statute. It suffices to say that the trial court did not abuse its discretion in denying the continuance.

No error appearing, the judgment is affirmed.


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    Illinois Standard Mortgage Corporation v. Collins.
    4-3095
    Opinion delivered October 2, 1933.

      Roy Penix, Robert S. Keebler and Stickley, Exby, Moriarity & Pierce, for appellant.

      Basil Baker, for appellees.
   Johnson, C. J.,

(after stating the facts). We find it unnecessary to discuss the many interesting questions discussed by counsel. The question of estoppel is decisive of all issues here presented. The testimony shows conclusively that at all the times here in controversy E. W. Collins was president of the Homebuilders’ Corporation and an active member of the board of directors of the Young Men’s Building & Loan Association. During the same period of time' G-. G-. Brooks was the secretary of the Young Men’s Building & Loan Association and the Homebuilders’ Corporation, and, in addition thereto, Brooks was the supervising manager of all the business of both corporations. During the same period of time and in the absence of Brooks from the office, Collins had charge of the affairs of both corporations. Collins and Brooks executed the application for the loan which is secured by appellant’s mortgage. In conformity therewith, they jointly executed the mortgage and notes which accompanied it. The proceeds of the loan was remitted by appellant to Collins and- Brooks, and it in turn paid it over to the Homebuilders’ Corporation, and it is fairly inferable that this identical money was paid over by the Homebuilders’ Corporation to the Young Men’s Building & Loan Association. The fact is, we think no other reasonable inference can be drawn from the testimony. It would be inequitable and unjust to permit the Young Men’s Building & Loan Association to take appellant’s money delivered on the faith of a first mortgage, then assert a superior claim and right under a mortgage which would have been released had attention been directed to it. Under the facts and circumstances of this case, we are convinced that the Young Men’s Building & Loan Association received and accepted appellant’s money with the full knowledge and information that appellant thought it was receiving a first mortgage on the property in controversy, and this based upon the solemn representations of Gr. Gr. Brooks, who was then the supervising manager and secretary of the Young Men’s Building & Loan Association, to the effect that appellant’s mortgage was a first mortgage against the property in controversy. Equity holds a person to a representation made or position assumed, where otherwise inequitable consequences would result to another who has, in good faith, relied thereon. Such an estoppel is founded on morality and justice, and especially concerns conscience and equity. It needs neither a consideration nor a legal obligation to support it. See § 19, vol. 10 R. C. L., p. 689. Again, acceptance of any benefit from a transaction or contract, with knowledge or notice of the facts and rights, would and should create an estoppel. See-§ 22, 10 R. C. L., p. 694. There can be no question in the instant case but that knowledge of Brooks was knowledge to the Young Men’s Building & Loan Association.

This court has held that, “if a creditor of a fraudulent grantor, with knowledge of the fraud, accepts from the grantee the purchase price agreed to be paid for the land, he thereby affirms the sale, and waives right to complain of the fraud.” Millington v. Hill, 47 Ark. 301, 1 S. W. 547. This rule has full application to the facts of this case. The Young Men’s Building & Loan Association had full knowledge that an application was being made to appellant for a loan on the property which it now claims adversely and with this knowledge accepted the proceeds of the loan. By doing this, it is estopped in asserting rights under its mortgage of 1925 superior to that of appellant.

For the reasons aforesaid, the decree is reversed, and the cause is remanded with directions that the property be sold and the proceeds arising therefrom be disbursed; first, to the costs attending the sale; secondly, to appellant in the aggregate sum due it under its notes and mortgages, and, if any balance remain, same to be paid to the Young Men’s Building & Loan Association.


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    Hinton v. Elliott.
    4-3097
    Opinion delivered October 2, 1933.

      Cravens, Cravens & Friedman, for appellant.

      A. M. Dobbs and D. L. Ford, for appellee.
   Smith, J.

This appeal is from the order of the chancery court of the Port Smith District of Sebastian County refusing to confirm a commissioner’s sale made pursuant to the decree of the court foreclosing a mortgage on a house and lot in the. city of Port Smith. Exceptions were filed to the commissioner’s report by both the plaintiff and defendants in the foreclosure suit.

Upon the hearing of the exceptions filed by both the plaintiffs and the defendants, the following testimony was offered: The property was purchased by one of the defendants in 1922 for $9,000, and has since been occupied by her as a residence. The house is a two-story frame building, has nine rooms and a hall, has an attic and a furnace, in the basement. The property is now assessed for general taxes at $2,750, which, is supposed to he fifty per cent, of its value.

The purchaser borrowed $4,000 from the Lyman Eeal Estate Company, evidenced by four notes each for $1,000, and executed a mortgage on the house and lot as security therefor. The real estate company sold one of these notes to E. L. Elliott, another to M. Davis, and two of them to Mary B. Martin, and executed an assignment of the notes and of the mortgage securing them to these purchasers.

The foreclosure suit was brought by «the holders of these notes. The decree adjudged the balance due on the notes, and ordered the foreclosure of the mortgage securing them, and appointed the clerk of the court as commissioner to execute the decree, who was “* * * hereby directed and ordered to sell said land above-described in the manner and form as provided by law for the sale of lands under attachment. ’ ’

Two real estate men familiar with city values placed the market value of the property, even at the present price level, at from three thousand to forty-five hundred dollars, and representatives of the plaintiffs, offered to bid at a resale three thousand dollars for the property. It was sold at the commissioner’s sale to W. L. Hinton for $525, on October 22,1932.

The 'defendants in the foreclosure suit excepted to the confirmation of the report of sale for the reason that the property was not sold in the manner provided by law for the sale of real estate under attachment, the law requiring such sales to be upon a credit of not less than three or more than twelve months for real property, or on installments equivalent to not more than twelve months ’ credit on the whole. Such sales are made subject to confirmation of the court, and from such a sale a right of redemption exists. Beard v. Wilson, 52 Ark. 290, 12 S. W. 567.

It is pointed out in the exceptions of the defendants that if it be said that the direction to sell as under an attachment is a misprision of the clerk, and that it was intended that the property be sold as under execution, the law in regard to execution sales was not complied with, in that no notice of the sale was posted upon the property to be sold, in which defendants resided, and that, had this been done, defendants would have been advised of the sale, whereas the property was sold without defendants being aware that it 'had even been advertised for sale. The right to redeem from execution sales is conferred by statute. Section 4329, Crawford & Moses’ Digest. Defendants also allege-that the property sold for a grossly inadequate price.

Mary B. Martin and M. Davis, owners of three of the four notes for $1,000 each, alleged that they had no knowledge of the sale, and that they relied upon Elliott, the owner of the fourth note, to notify them of the sale, and he failed to do so, and that, if they had been aware of the sale, they would have bid enough for the property to protect their interests. They also alleged that the sale was for a grossly inadequate price.

The purchaser at the sale intervened in the court below, and has appealed from the finding and decree of the court refusing to confirm the commissioner’s sale to him.

In refusing to confirm the report of sale the court made the finding of fact that the property had been sold for a grossly inadequate price, and that on a resale the property would bring at least three thousand dollars. This finding is abundantly supported by the testimony.

The court also found that the notice of sale was published in a paper not having general circulation in the Port Smith District of Sebastian County, and that defendants had no notice of the sale. We are of the opinion that the testimony in the record before us does not support the finding that the newspaper did not have general circulation, but does support the finding that defendants did not have notice of the sale.

In the early case of Brittin v. Handy, 20 Ark. 381, it was said that “we understand the rule to be, in reference to judicial sales, that in the absence of all fraud and unfairness, mere inadequacy of price, however gross, does not invalidate the sale,” and this court has many times since ordered the confirmation of sales where the showing only had been made that the property had been sold for a grossly inadequate price.

We concur in the conclusion of the chancellor that the commissioner’s report should not be confirmed, but not for the reason stated by him. This, however, is not of controlling importance, as we try the case here de novo. The inadequacy of the price, and the fact that the property will bring much more upon a resale, did not authorize the relief granted. The finding that the newspaper in which the notice of sale was published did not have a general circulation in the Fort Smith District of Sebastian County would, if supported by the testimony, warrant the action of the court, for in such case the defendants would not have had the notice contemplated by law. But neither exceptor raised such objection, and we do not think the testimony supports that finding of fact. Smith v. First National Bank of DeWitt, 119 Ark. 235, 177 S. W. 895.

We are of the opinion, however, that the directions of the court in the decree of foreclosure as to the manner of sale might have confused prospective purchasers, and thus have affected the price for which the property was sold, and this fact, in conjunction with the grossly inadequate price at which the property sold, warranted the court in refusing to confirm the sale. As we have said, sales under executions or attachments are subject to redemption, and the directions of the decree in this respect are confusing. While confirmation of judicial sales will not be denied for inadequacy alone, yet, where there is gross inadequacy, the courts seize upon slight additional circumstances which render confirmation inequitable and therefore deny that relief. Stevenson v. Gault, 131 Ark. 397, 199 S. W. 112; Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445.

We concur in the conclusion of the chancellor that the sale should not be confirmed, and that decree is therefore affirmed.


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    Clay County Ice Company v. Littlefield.
    4-3085
    Opinion delivered October 2, 1933.

      Oliver & Oliver, for appellant.

      C. T. Carpenter, for appellee.
   Smith, J.

The facts in this case, which are few and simple, are as follows. Appellees Littlefield and Companiotte owned lots 3 and 4, respectively, in block 12, of the town of Corning, and have resided thereon for a number of years. Long after appellees had built their residences on the lots referred to the Corning Ice & Electric Company erected, in 1929, an ice, electric light and bottling plant in the same block on lots directly opposite those of appellees. In September, 1930, after the plant had been in operation for some time, Littlefield brought suit against the ice company for damages to his property resulting from the operation of the plant, and recovered a judgment for a thousand dollars. Later Companiotte brought a similar suit, and recovered judgment for the same amount. This last suit appears not to have been contested.

The Corning Ice & Light Company was adjudged a bankrupt, and an execution which issued upon the judgment was placed in the hands of the sheriff, who made a nulla bona return thereon. At the sale of the Ice & Light Company’s assets in the bankruptcy proceeding the holders of bonds issued by the Ice & Light Company, which were secured by a deed of trust on the property, bought it, and thereafter operated the plant after changing its name to the Clay County Ice Company.

The reorganized company abandoned the light plant, and continued operation of the ice plant, and it was shown that whereas the old company had operated two engines twenty-four hours a day, the new company operated only one engine, and that for a portion only of the day. It may be said, however, without reciting the testimony, that the court was fully warranted in finding that the vibration, smoke, and ammonia fumes connected with the plant, constituted it a nuisance.

The law of the case was declared in Bickley v. Morgan Utilities Co., Inc., 173 Ark. 1038, 294 S. W. 38, where it was held, to quote a headnote, that “The operation of an ice plant in a residential district held a nuisance and should be restrained, where it materially injured property and annoyed the residents, regardless of how well it was constructed or conducted.”

The. appellant ice company insists that relief by way of a restraining order abating the nuisance should not have been granted, but that appellees should have been remitted to an action at law, as any damage could have been thus compensated, and that relief by the award of damages only should have been granted because of the disproportionate hardship which abating the nuisance will inflict. The case of City of Harrisonville v. Dickson Clay Mfg. Co., 53 Supreme Court Reporter (U. S.) 602, is cited in support of that contention. We think, however, under the rule announced in the Bickley case, supra, that appellees are entitled, under the facts of the instant case, to the relief granted. The court found the fact to be that the operation of the plant is a nuisance, “has damaged the property of the plaintiffs, interferes with their enjoyment thereof, and probably is also injurious to the health of plaintiffs and their families.” If this finding be true — and the testimony supports ,it— other property owners in the. same residential section would suffer in the same manner, if not to the same extent, and the relief granted was properly awarded.

It is insisted that appellees estopped themselves from asking the relief granted them. The basis of this contention is that they signed a certain petition and a certain agreement. The petition reads as follows:

“We the undersigned citizens of Corning, Arkansas, and users of ice, respectfully request that the Corning Ice Company proceed as rapidly as possible with the construction of the plant which has just been started, in order that there maybe no question about our being supplied with ice in a satisfactory manner the ensuing summer. ’ ’

The agreement reads as follows: “If W. F. Moody, or his assigns, will, pxxrsuant to the terms of ordinance No. 196, make arrangements to furnish light and power to the inhabitants of Corning at a rate which is less than that which is now being charged, we, the undersigned proxxiise that we will become customers and buy current from him.”

One of the appellees testified that he was assured by an official of the Corning Ice & Light Company, before the plant had been coixstrxxcted, that it would be without objectionable features; bxxt we think there is nothing in the petition which Estops a signer thereof from raising the question that the plant had not been properly constructed or was not properly operated and had become a nuisance.

The agreement to use light and power if it be furnished at a rate less than which the signers were then being charged cannot be construed as a written assent that a nuisance nfight be maintained.

The decree appears to be correct, and it is therefore affirmed.


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    Chicago, Rock Island & Pacific Railway Company v. Cook.
    4-3101
    Opinion delivered October 2, 1933.

      Thos. S. Buzbee, for appellant.

      D. D. Glover and W. H. Glover, for appellee.
   Humphreys, J.

Appellee, in Ms own right and as administrator of the estate of his son, Rayburn Earl Cook, brought suit in the circuit court of Dallas County against appellant to recover damages for the death of his son caused through the alleged negligence of its motorman operating its motor car by failing to keep a lookout; by failing to discover the peril of deceased; by failing to blow the whistle or ring the bell, or to give any signal whatever to warn deceased of his impending danger.

Appellant filed an answer denying each allegation of negligence and alleging that the death of deceased was the result of his own negligence, averring the truth to be that the deceased laid down flat on the ends of ties outside of the rail and that, although appellant’s motorman was keeping a constant lookout and saw something along the side of the track, he could not and did not realize that it was an animate object and did not think it would interfere with the running of the motor car until he came so close to it that it was impossible for him to stop the motor car in time to prevent the injury and death of deceased.

The cause was submitted to the jury upon the. pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment in favor of appellee for $1,500 for the loss of services of his son, and to him as administrator of deceased’s estate for $500, from which is this appeal.

Appellant’s first contention for a reversal of the judgment is that the verdict and consequent judgment are not supported by any substantial evidence. The argument is made that the motorman was the only eyewitness to the tragedy, and that his testimony throughout was consistent and uncontradicted, and was to the effect that the deceased was killed without any fault or negligence on his part. He testified that the motor car was moving at a speed of about forty-five miles an hour in a southerly direction on a practically straight track; thát he was keeping a constant lookout and did not discover that deceased, who was lying flat down on the ends of the ties outside the rail, was animate until he was within two hundred feet of him; that he immediately applied the emergency brakes and gave three blasts of the whistle, but was unable to stop the motor car before running over him; that the motor car stopped about two hundred feet after it passed over the body; that he backed up and stopped opposite the body and on alighting found the boy dead; that he blew the whistle for the crossing south of where the body was lying at the proper place, and that about the time he did so he discovered that the object he had seen before he blew the whistle for the crossing was alive; that up to that time he thought the object he had seen was a piece of paper.

It is undisputed that the boy was killed about one mile south of Bunn, and that the track was practically straight between the two points, the curve therein being so slight it would not obstruct the view, and that there was nothing else on the right-of-way to obstruct the- view. Evidence was introduced by appellee to the effect that the motorman did not blow the whistle as he stated for the crossing south of where the boy was sitting or lying and tended to show that about ten or fifteen minutes before the train passed, the boy was sitting on the edge of the track; also evidence showing that subsequent tests were made which revealed that a person standing at Bunn could see and distinguish a man at the point where the boy was killed either sitting or lying down, and that one standing where the boy was killed could see and distinguish a small dog at Bunn; also evidence to the effect that the deceased did not die immediately as stated by the motorman.

We think the. evidence introduced by appellee detailed, in substance, above was amply sufficient to warrant the jury in finding that, had the motorman been keeping a proper lookout, he could, in the exercise of ordinary care, have distinguished the deceased from a piece of newspaper when he first observed the object, at which time he could have stopped the motor car and prevented the injury and death.

Appellant next contends for a reversal of the judgment because the court gave appellee’s instruction No. 5, which is as follows:

“You are instructed that if you find from a preponderance of the evidence in this case that the operator of said motor car discovered an object on or dangerously near its track, and that he could not tell whether it was animate or inanimate, that it became and was his duty to exercise ordinary care to bring said motor car under control so as to avoid striking said object or person as it was found to be, and if it negligently failed to do this and thereby caused the death of the said Rayburn Earl Cook, it will be your duty and you are instructed to find for the plaintiff.”

Appellant argues that the instruction was not within the allegations of negligence. The instruction was responsive to the issue tendered by appellant in its answer, and within the issue invoked by appellee under the lookout statute. Appellant introduced evidence in support of the issue tendered. It was therefore proper to instruct the jury relative to the issue and evidence introduced. It certainly is the intent of the lookout statute to require those operating trains when they discover an object on or dangerously near the track to exercise ordinary care to ascertain whether the object is animate or inanimate, and during the interval of doubt to put the train in control so as to stop same in the event the object proves to be animate. Unless this is the rule, the lookout statute would amount to nothing. Appellant argues, however, that the instruction ignores the defense of contributory negligence. Contributory negligence is no longer a defense in this State for a personal injury or death caused by the running of trains except for diminishing the damages in proportion to such negligence. Section 8575 of Crawford & Moses’ Digest. Appellant asked no instruction on comparative negligence pursuant to said statute. Appellant also argues that said instruction No. 5 is in conflict with instructions Nos. 3 and 4 given at the request of appellant. We have not been favored with any more than a suggestion that an irreconcilable conflict exists between the instructions. After a careful reading of them, we are unable to discover any conflict.

No error appearing, the judgment is affirmed.