text:
    Russellville Special School District No. 14 v. Tinsley.
    Opinion delivered December 18, 1922.
    Schools and school districts — wrongful discharge of teacher— damages. — When a teacher employed for a nine months’ term at a certain salary was wrongfully discharged after she had taught for three months, it is no defense that the district offered her the position of truant officer at same salary for the remainder of the term, as the teacher was not required to engage in employment of a different character in order to mitigate the damages for her wrongful discharge.
    Appeal from Pope Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Hays, Ward & Hays, for appellant.
    When a servant is wrongfully discharged, it is his duty 4o make a reasonable effort to secure other similar employment. 58 Ark. 617. Here the plaintiff could have secured similar employment and suffered no damage.

      R. B. Wallace and Jas. H. A. Baker, for appellee.
    The school board had no power to employ an officer except as provided in § 9051, C. & M. Dig. The duties of a truant officer are entirely different from those of a teacher., 58 Ark. 623.
   Wood, J.

This is an action by the appellee against the appellant on a written contract by which the appellant agreed to employ the appellee to teach a common school in the appellant district for the term of nine months, commencing on the 20th day of September, 1920, and to pay her for her services the sum of $45 for-each school month for lialf-day teaching, and the appellee agreed on her part “to keep said school open three hours each school day; to keep carefully the register required by law; to preserve from injury to the utmost of her power the district property; to give said school her entire time and best efforts during school hours'; to use her utmost influence with parents to secure a full attendance of scholars, and generally to comply with all other requirements of the laws of this State in relation to teachers, to the best of her ability.”

The appellee alleged that she had complied with the contract on her part, and that the appellant had violated same by discharging her without reason and just cause, after she had taught the school for three months; that the appellant was due her-for the balance of the school term of six months in the sum of $270, for which she asked judgment.

The appellant defended below upon several grounds, all of which have been abandoned here except that the appellant had the right, under the contract, to transfer appellee from one department of work to another at the same salary, which appellant proposed to do, but to which the appellee refused her consent. The testimony of the appellee on this issue was substantially as follows: The superintendent of the Russellville public school wrote to her to the effect that on December 7th the directors of appellant unanimously voted to transfer appellee to truant work, and if she did not report soon for that work her salary would be discontinued immediately. The appellee was unwilling to accept the truant work employment. Slie gave as her reason for so doing that she thought her contract as a teacher was good and binding on the district, and that she was not required under the contract to perform truant work. The board thereupon discharged appellee and refused to pay her for' the remainder of the term.

The testimony on behalf of the appellant was to the effect that it did not discharge the appellee, but transferred her to truant work, and she quit. It was the duty of the truant officer to see that the children who played truant came to school; to see that the parents understood the troubles and differences that came up in the- school, and notify them when their children were out of school; also to report to the teacher who had charge of any truant child, and to also report truants to the civil authorities.

Over the objection of appellant, the court instructed the jury as follows:

“3. If you find from the testimony in the case that they hired her to teach school for nine months and at the expiration of three months, if you further find from the proof that they discharged her without just cause, or without cause, then she would be entitled to recover damages; and her measure of damages would be what she was to receive under the contract during its unexpired period, less what amount she could receive from other occupations during that time. That is to say, if she didn’t get to teach six months of the term,- and find that she was discharged without cause, she would be entitled to recover six times $45. But if she made anything or could have made anything and did make anything at other avocations, you would, of course, deduct that from the $45 per month.”

The court refused appellant’s prayer for instruction as follows:

“2. The court instructs you that, if you find from the evidence in this cause that, at the time the defendant school district notified the plaintiff that it could no longer use her as a teacher, offered her employment as a truant officer at the same salary she was getting as a teacher, and that the requirements as truant officer would not have required 'any more work on her part, and she refused to accept said employment, then in. that event she would not have been damaged and would not be entitled to recover from the school district on account of loss of time or compensation, and, if you so find, then it will be your duty to return a verdict in favor of the defendant.”

The court also refused to instruct the jury that it would be the duty of the appellee to use reasonable diligence to obtain other employment in order that she might minimize her damages, and that if she refused to accept the position of truant officer at the same salary she could not recover.

The jury returned a verdict in favor of the appellee in the sum of $150. From the judgment in her favor for that sum is this appeal.

Under section 9051 of Crawford & Moses’ Digest the board of directors of any common school district is authorized to select attendance officers. Truant officers and attendance officers as used in the statute are the same. It is the duty of these officers “to investig’ate all cases of non-attendance and to give the parents or guardians of any non-attendants due warning and notice, in person or in writing, of the provisions of this act; and if such parent or guardian fails, neglects, or refuses to place such child or children in such school within five school days after receiving said notice, said attendance officer shall immediately file complaint against such parent or guardian with some peace officer, which peace officer shall at once issue a warrant of arrest for such parent or guardian. Such attendance officer shall serve such warrants of arrest issued under the provisions of this act.”

Sec. 9052 of Crawford & Moses’ Digest provides in part as follows: “All cases of non-attendance at school in violation of the above requirements which are not the fault of the parent, guardian or other person having control of such child or children, but are’due to truancy on the part of the children, shall be considered as cases of delinquency, and the teachers or truant officer shall’report such child or children to the juvenile court or to the county court as delinquent children, ’ ’ etc.

It-is clear from the above provisions that the duties of an attendance or truant officer as therein prescribed are wholly different from the duties which the appellee was bound to perform under the terms of her contract with the appellant. The duties as teacher which she was required to perform under her contract were entirely different from the duties which the testimony tends to prove that she would have had to perform had she accepted the position of truant officer-, which appellant attempted to thrust upon her.

In Van Winkle v. Satterfield, 58 Ark. 617-620, Judge Battle, speaking for the court, quotes from Gardenhire v. Smith, 39 Ark. 280, as follows: “Where a servant is employed for a particular term at stipulated wages, and his employer discharges him without cause, before the expiration of the term, he may elect to treat the contract as continuing, keep himself in readiness to perform it on his part, and, after the expiration of the term, sue and recover of his employer on the contract the whole of the wages due him by its terms; less what he had an opportunity to make by like service after his dismissal. ’ ’ Judge Battle further said: “When' a servant is wrongfully discharged by his employer, it is his duty to use reasonable efforts to avoid loss by securing employment elsewhere. It is not, however, his duty, if he was employed in any special service, as in this case, to engage in business different from that in which he was employed. * * * . The burden of proof is on the employer to show that the servant might have obtained similar employment; for the failure of the servant to obtain other employment does not affect the right of action, but only goes in reduction of damages, and, if nothing else is shown, ‘the servant is entitled to recover the contract price upon proving the employer’s violation of the contract and his own willingness to perform.’ ”

The law as thus declared in Van Winkle v. Satterfield, supra, rules this case. See, also, Sweet v. McEwen, 140 Ark. 162. Under the above doctrine the instruction of the court was really more favorable to the appellant than it should have been.

The record presents no error, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Brown v. State.
    Opinion delivered December 18, 1922.
    1. Criminal law — presumption as to intention. — While it is tru-e as a general rule that every person is presumed to contemplate the ordinary and natural consequences of his. acts, such presumption does not arise where the act fails of effect or is attended by no consequences; and where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act.
    2. Homicide — instruction—presumption.-—It was error in a prosecution for assault with intent to kill to instruct that every sane man is presumed to intend the natural and probable consequences of his acts.
    3. Homicide — instruction.—An instruction in a prosecution for assault with intent to kill which told the jury that the proof must show a specific intent to take life, but also that every sane man is presumed to intend the natural and probable consequences of his acts, was contradictory within itself and was calculated to confuse and mislead the jury.
    4. Criminal law — general objection to instruction. — An instruction in a prosecution for -assault with intent to kill which 'told the jury that the proof must show the specific intent -to take life, and also that every man is presumed to intend the natural and probable consequences of his acts, is so inherently erroneous -that, a general objection to it was sufficient to call attention to the erroneous portion of it.
    5.. Criminal law — refusal of instruction. — A contention on ap- . peal that the trial court -erred in refusing a prayer for instruction cannot be considered where appellant fails to set out all of the instructions given.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    reversed.

      G. P. George, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Wood, J.

This is an appeal from the conviction of appellant on an indictment which in proper form charged him with the crime of assault with intent to kill one Dewey Pierce. The testimony on the part of the State tended to show that a dance was given at the home of Zack Robertson in Ashley County, Arkansas, on the night of the 22d of April, 1922. At the conclusion of the dance Deverous Brown, son of appellant, and Aubrey Chadwick were engaged in a fight. Brown shoved Chadwick off the gallery. Brown was a man and Chadwick a mere boy. Dewey Pierce asked Brown to let Chadwick alone. Brown thereupon turned and started toward Dewey Pierce. Whereupon Pierce struck him in the head with his fist. Brown and Pierce then began to fight. As soon as the fight stanted, appellant drew his knife, ran upon the gallery behind Pierce and began cutting him in the back. Pierce started to run and fell off the gallery and became entangled in some vines or wire. Appellant jumped off the gallery, went around to where Pierce was, and again cut him with the knife in several places. Pierce broke loose from appellant and ran. Appellant pursued him and caught him while he was climbing the front yard fence and again cut him with the knife. Pierce succeeded in getting away from appellant, and as he was running away appellant remarked, “Dewey, what in the world is the matter with you? By G-, I’ll kill you.” Appellant also stated soon after the difficulty, “I sure did give Dewey a bad lick when he went over the fence. Some of them will find him out in the bushes dead some time right away.” Pierce received nine wounds as the result of the attack by the appellant, which almost resulted in the loss of his life. Pierce at no time made any hostile move toward the appellant.

The appellant’s defense was that he did not attack Pierce with a knife; that the fight was between his son and Pierce, in which- both used their knives, and that his son inflicted the wonnds upon Pierce in self-defense.

Among the court’s instructions was the following: “While it is necessary that the proof should show a specific intent to take life in order to constitute the crime of assault with intent to kill, it is not necessary that this intent should be shown by direct and positive evidence, but it may be shown by facts and eircumstances, and, in determining whether such intent existed, you will take into consideration the manner of the assault, the nature of the weapon used, the manner in which it was used, the nature and location of the wounds inflicted, the statements of the defendant, if any, and all other facts and circumstances tending to show the state of his mind, and in this connection you are instructed that every sane man is presumed to intend the natural and probable consequences of his acts.”

The appellant entered a general objection to this instruction.

Instruction No. 12 was erroneous because it concludes with the following clause: “ * * * and in this connection you are instructed that every sane man is presumed to intend the natural and probable consequences of his acts.” In Lacefield v. State, 34 Ark. 275-280, we said: “Whilst it is true that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect, or is attended by no consequences, and where such act is charged to have been.done with a specific intent, such intent must be proved, and not presumed from the act.” See also Scott v. State, 49 Ark. 156; Chrisman v. State, 54 Ark. 283; Beavers v. State, 54 Ark. 336; Clardy v. State, 96 Ark. 52; Davis v. State, 115 Ark. 566; 13 R. C. L. 99, sec. 103; 3 Bishop’s New Criminal Law, 1289 to 1290; 7 Ency. of Evidence, 584.

The clause of the instruction above quoted was erroneous because it was necessary for the State to prove that the appellant assaulted Pierce with the specific intent to take his life. While the court correctly so told the jury in the first part of the instruction, yet, by the language of the concluding clause, the jury were told that the intent would be presumed from the consequences of his acts. The instruction as a whole was thus rendered contradictory within itself, and was calculated to confuse and mislead the jury. The instruction was prejudicial, because the appellant denied that he assaulted Pierce at all. If appellant had admitted the assault and that he intended to kill Pierce, but that the assault was in the defense of his life, the instruction would not have been prejudicial. See Coulter v. State, 110 Ark. 209.

The Attorney General concedes that the instruction was erroneous and prejudicial, but suggests that the court consider whether or not the attention of the trial court should have been drawn to the erroneous language by a specific objection. The objectionable language rendered the whole instruction erroneous, and inherently so. Therefore a general objection to the instruction was sufficient.

The appellant also contends that the court erred in refusing his prayer for another instruction, which we do not set out and comment upon, because all the instructions are not set out in appellant’s abstract. Therefore if the refused prayer were correct and should have been given, the record does not show any error in the court’s ruling, for the reason that the court may have covered the prayer for instruction by other instructions which were given. For the error in giving instruction No. 12, containing the erroneous language indicated, the judgment is reversed and the cause remanded for a new trial.


author: Hart, J. (after stating the facts).

text:
    McReynolds v. First National Bank.
    Opinion delivered December 18, 1922.
    1. Mortgages — mistake as to mortgagor's initials. — Where one ‘ full Christian name of the grantor in a deed or mortgage is used, this imparts notice to one examining the title, though there is an error in the middle initial of his name; but where initials only are used, they take the place of the Christian name, and in such case the correct initials are necessary to give notice.
    2. Banks and banking — presumption as to signature. — Where the signature of mortgagee bank appeared after the indorsement on the mortgage, “This instrument to be filed but not recorded,” and the proof showed that the mortgage was executed to the bank to secure a bona fide note due to the bank by the mortgagor, it was inferable that the .bank’s signature was placed -there by some one having authority to do so.
    Appeal from Conway Chancery Court; W. E. AtIcinson, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    The First National Bank brought this suit in equity against W. A. Hunter and T. M. McReynolds to obtain an ■accounting for certain property alleged to belong to the plaintiff under a mortgage executed to it by W. A. Hunter.
    The facts, briefly stated, are as follows: On the 10th day of February, 1920, W. A. Hunter executed a chattel mortgage on his crop and other personal property to T. M. Reynolds to 'secure a note for $220 and an open account. The mortgage was duly filed for record on the 18th day of February, 1920, and was signed by said Hunter, “W. H. Hunter.” On the 14th day of April, 1920, W. A. Hunter executed a mortgage to the Citizens’ Bank on the same property to secure a note for $257.57 and .an open account. This mortgage was filed for record on the 20th day of April, 1920, and bears the following indorsement: £ ‘ This instrument to be filed, but not recorded. (Signed) Citizens’ Bank.”
    The correct name of the mortgagor is W. A. Hunter.
    T. M. McReynolds did not know Hunter personally and did not know what the correct initials of his name were at the time Hunter executed the mortgage in question to him. The notes and the mortgages given to secure the same were offered in evidence by each party. The Citizens’ Bank duly transferred its note and mortgage to the First National Bank, the plaintiff in the court below.

      The chancery court found that the mortgage of the plaintiff was a superior lien to that of T. M. McReynolds, and. a decree was entered accordingly. To reverse that decree- T. M. McReynolds has duly prosecuted an appeal to this court.

      Edward Gordon, for appellant.
    Sec. 7384, C. & M. Dig., requires the indorsement on a chattel mortgage to be signed by the mortgagee, his agent or attorney. 130 Ark. 290; 37 Ark. 507; 43 Ark. 144; 52 Ark. 164; 83 Ark. 109; 121 Ark. 346. The case is ruled by 59 Ark. 151. The middle initial of a name is immaterial. 12 Ark. 622; 3 Pet. 1; 14 Pet. 322.

      Strait & Strait, for appellee.
    The indorsement was properly signed. 60 Ark. 112; 40 Ark. 431. A mortgage executed by a person signing false initials does not constitute notice. 59 Ark. 151; 32 L. R. A. N. S. 243; 97 Am. St. Rep. 54; Sup. Ct. Rep., vol. 9, No. 6, p. 448; 7 L. R. A. N. S. 415; 25 L. R. A. N. S. 1211; 25 L. R, A. 543; 26 S. W. 821; 53 Am. Dec. 586; 47 Am. Dec. 305; 24 Am. St. Rep. 728.
   Hart, J. (after stating the facts).

It will be noted that the correct name of the mortgagor is W. A. Hunter. The mortgage to T. M. McReynolds was executed first, but it was signed by Hunter as W. H. Hunter instead of W. A. Hunter. The mortgage to the Citizens’ Bank, while executed on a later date, was signed by Hunter under his correct name, W. A. Hunter.

Counsel for the defendant seeks to reverse the decision of the chancellor on the authority of Fincher v. Hanegan, 59 Ark. 151. In that case the court held that a mistake in the initial of the middle name of a mortgagor does not necessarily defeat the effect of the record as notice; under the common-law rule that the middle initial of a name is immaterial where the Christian name is used, and where it did not appear that there was more than one person of that name in the county. In that case the true name of the mortgagor was Henry N. Ward, and he signed the mortgage as Henry N. Ward. By the common law, a full name consists of one Christian or given name and one surname, and the two constitute the legal name of the person. The middle name or middle initial ■of a person does not affect his legal name. So the court held that, because the law knows only one Christian name, a wrong middle initial might be inserted in a mortgage without affecting its validity.

We do not think that case is an authority in the present case. There the mortgagor executed the mortgage by his full or true Christian name and surname. Here he executed the first mortgage by using his initials only.. It has grown into such universal practice to sign one’s name by using the initials instead of the full Christian name that it would not do to hold that a mistake in the middle initial amounted to no more than such a mistake when the Christian name is written in full. If such is the case, the recording act will fall short of its purpose. The difference in the two classes is apparent. To illustrate, suppose two brothers should be named William H. Hunter and Wiley A. Hunter. If each one should sign a deed or mortgage by using his initials instead of his full Christian name no harm would result, for one would sign W. H. Hunter and the other W. A. Hunter. In such case there could be no confusion about who signed the mortgage, and no one would be misled by examining the records.

Again suppose one should use his full Christian name “William” and the other his full Christian name, “Wiley;” any one who knew the parties, in examining the records would not be misled, even though the wrong middle initial might be inserted after the Christian name. The reason is that the party searching the record would be guided by the Christian name, “William” or “Wiley,’.’ and this would call his attention to the fact that a mistake had been made in the middle initial, and he would not be misled.

On the other hand, if the initials only were used, it is obvious that confusion, which might lead to harm or injury to the person searching the records, if a mistake in the middle initial should be considered as immaterial, might result. In such case, no Christian name being used, the initials take the place of it and the correct initials must be used, else the record will not operate as notice. In other words, when the full Christian name is used that imports notice to the one examining the records as to the identity of the grantor in the deed or mortgage. If the initials only are used, the correct initials must appear in the record in order to give notice or to prevent mistakes. Johnson v. Wilson (Ala.), 34 Sou. 392, 97 Am. St. Rep. 52, and case note to Burns v. Ross (Pa.), 7 L. R. A. (N. S.) 415, and First National Bank v. Hacoda Mercantile Co. (Ala.), 53 Sou. 802, 32 L. R. A. (N. S.) 243.

Again it is sought to reverse the decree on the ground that it is not shown that the bank signed the indorsement “This instrument to be filed but not recorded.” There appears after the indorsement the signature “Citizens’ Bank.” It is true there is nothing in the indorsement to show that it was duly authorized by the board of directors. The proof shows that the mortgage in question was executed to the Citizens’ Bank to secure a tona fide note due by W. A. Hunter to that bank. The mortgage was delivered to the recorder of deeds “to be filed but not recorded,” as provided by the statute. The .indorsement was in the language of the statute and bore the signature of the mortgagee. Under the circumstances it is fairly inferable that the signature of the mortgagee was placed there by some one having authority to do so. See Price v. Skillern, 60 Ark. 112.

It follows that the decree must be affirmed.


text:
    Beckler Produce Company v. American Railway Express Company.
    Opinion delivered December 18, 1922.
    Carriers — penalty for failure of express company to settle for lost GOODS. — Crawford & Moses’ Dig., § 937, imposing a penalty of $2 per day for failure of an express company to settle for goods lost in transit within 20 days after notic-e contravenes the equal protection and due process clauses of the Constitution, in that it gives the option to the shipper to make the penalty excessive'-by delaying action till the penalty becomes disproportioned to the loss.
    Appeal from Arkansas Circuit Court, Northern District; George W. Claris, Judge;
    affirmed.
    statement op pacts.
    On the 16th day of July, 1918, J. B. Polk delivered to the Wells Fargo & Company Express at Stevens, Ark., twenty bushels of peaches to be shipped by express to Beckler Produce Company at Stuttgart, Ark. The express 'company failed to deliver the peaches to the consignee, and this resulted in a loss to it of $48.66.
    The American Railway Express Company took over all the property belonging to. the Wells Fargo & Company Express, and assumed all its debts and liabilities.
    The Beckler Produce Company gave notice, as required by the statute, within twenty days of the loss of the peaches while in transit. The express company failed to pay the claim, and the consignee sued it to recover damages for the loss of the peaches and also for the sum of $1,743.66, being the sum of $2 for each day from the date of the failure of the express company to pay the claim commencing August 21, 1918, and continuing to the 10th of January, 1921, the day this suit was filed.
    The court directed the jury to return a verdict for the value of the peaches sued for, and instructed it not to consider the allegations of the complaint as to the statutory penalty.
    The jury returned a verdict in the sum of $48.66 with interest at 6 per cent, from July 18, 1918, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      E. H. Timmons, for appellant.
    The two-year statute of limitations does not apply. See. 6954, C. & M. Dig. The statutory liability here comes under §' 6950, sub-sec. 1, C. & M. Dig. The -statute creating this liability is remedial. 68 Ark. 433; 95 Ark. 327; 58 Ark. 407; 100 Ark. 248; 90 Fed. 220; 12 Ga. 104. The burden was on defendant to prove -the action was barred. 86 Ark. 309; 92 Ark. 465.

      Bridges S Wooldridge, for appellee.
    No proper bill of exceptions has been filed, and the case should be affirmed. 147 Ark. 197. The case should be affirmed under Rule 9. 143 Ark. 388.
    Sec. 6954, C. & M. Dig., applies, as this is for the recovery -of a penalty. 59 Ark. 165; 82 Ark. 309; 256 U. S. 554.

      E. H. Timmons, for appellant, in reply.
    The bill of exceptions is sufficient. 147 Ark. 197. The abstract is sufficient. 74 Ark. 320; 143 Ark. 388.
   Hart, J. (after stating the facts).

Under our statutes express companies shall settle in twenty days after notice given for the loss of goods in transit. Crawford & Moses’ Digest, § 936.

The statute further provides that any express company refusing to pay a claim within twenty days after notice given shall be liable in damages to the owner of the goods to the amount of damages sustained by the loss, and also the sum of $2 for each day that the express company fails and refuses to settle after the twenty days’ notice has been given. Crawford & Closes’ Digest, § 937.

Counsel for the express company contend that the statute, in so far as it provides a continuing penalty of $2 per day after failure to settle, is unconstitutional, because the amount allowed is arbitrary and excessive.

In Seaboard Air Line v. Seegars, 207 U. S. 73, it was held that a State statute may, without violating the equal protection clause of the Fourteenth Amendment, put into one class all engaged in business of a special and public character, and require them to perform a duty which they can do better and more quickly than others, and impose a not exorbitant penalty for the non-performance thereof.

Statutes of this character do not violate the due process or equal protection clauses of the State and Federal Constitutions; but, on the contrary, merely provide a reasonable incentive for the prompt settlement, without suit, of just demands of a class admitting of special legislative treatment; and in this connection it may be said that such statutes are not objectionable in so far as intrastate shipments are concerned. Yazoo & Miss. R. Co. v. Jackson Vinegar Co., 226 U. S. 217; and St. Louis, I. M. & So. Ry. Co. v. Williams, 131 Ark. 442, affirmed in 251 U. S. 63.

So it may be said that, in general, the amount of the penalty prescribed is a matter for the Legislature to determine in its discretion, and courts will not interfere with its ■ discretion in the premises as long as it keeps within the fair and reasonable scope of its power.

We are of the opinion, however, that the penalty exacted in the statute under consideration is so exorbitant and unreasonable as to render the statute unconstitutional. The statute provides a continuing penalty of $2 per day, and leaves it to the discretion of the owner of the goods to bring suit at any time within the period of the statute of limitations.

In the instant case the shipment consisted of twenty bushels of peaches valued at $48.66, and the penalty asked for amounted to $1,740. This amount is unreasonable, and serves to defeat the beneficent purpose of the statute, which, as we have said, was to compel the. carrier to perform with reasonable diligence the duty which peculiarly appertains to its business as- a carrier of freight. A pen-, alty which is unreasonable in amount would not accomplish-this purpose, but would have the effect to deprive the carrier of its property without due process of law-Southwestern Telegraph & Telephone Co. v. Danaher., 238 U. S. 482; Kansas City So. Ry. Co. v. Anderson, 238 U.S. 325, and Exparte Young, 209 U. S. 123.

The object of statutes of this kind is not to penalize the carrier for refusing to pay olaims within the time required, whether just or unjust, but the design is to bring about a prompt investigation and payment of all proper claims. The penalty is intended to make the. carrier prompt in the discharge of its duties and to allow to the owner of the goods compensation for the trouble and' expense of a suit which the unreasonable delay and refusal of the carrier to pay has- made necessary. In such cases penalties may be made cumulative in order to make it to the interest of the carrier to perform its duty. For instance, section 7525 provides that when a railroad company shall discharge, without cause, any employee, his wages shall become due at once, and, upon the refusal to pay him, a penalty for the nonpaj’ment of such wages shall continue from the date of the discharge at the same rate until paid.

The section, however, contains a proviso that such wages shall not continue more than sixty days unless an action therefor shall be commenced within that time. This section has been held constitutional by this court in numerous cases. Other statutes have heen held constitutional which provide a cumulative penalty to railroads failing or refusing to deliver freight or perform other duties required by the statute within a specified time.

In the first mentioned case the cumulative penalties only run for a stated length of time where suit is not brought, and this prevents them from becoming excessive and unreasonable.

In the latter class of cases the continued negligence of the carrier renders the penalties cumulative. Under the present statute there is no limitation to prevent the penalties from becoming excessively cumulative at the will of the owner of the goods. This makes the statute oppressive and unreasonable. It ceases to be a statute for the protection of the public, but becomes one which enables the shipper, by delay in bringing his suit, to force the carrier to pay his claim, however unjust and unreasonable it might be, or, for its refusal to do so, to pay a penalty which, by the action of the owner of the goods and not the carrier, had been allowed to continue until it became wholly disproportionate to the loss suffered. In other words, the statute gives the option to the shipper to make the penalty cumulative and to become oppressive. Therefore, the cumulative penalties provided by the statute are unreasonable, and by the act of the owner may become so excessive as to prevent the carrier from resorting to the courts to contest the correctness of the claim. The penalty clause of the statute is unconstitutional in that it denies to the carrier the equal protection of the law and deprives it of its property without due process of law.

It follows that the judgment must be affirmed.


text:
    Eminent Household of Columbian Woodmen v. McCray.
    Opinion delivered December 18, 1922.
    i. Insurance — fraternal society — constitution and by-laws._ The constitution and by-laws of a fraternal insurance company become part of its contract of insurance, so as to bind insured, provided they are not inconsistent with the terms of the contract.
    '2. Insurance — by-law inconsistent with policy. — A by-law of a fraternal insurance company providing that “death by one’s own hands, whether sane or insane,” shall not be contested, but in such event only one-fifth of the benefits are payable, is inconsistent with the policy provision reducing the amount of benefits to one-fifth in case of “suicide,” the term “suicide” meaning self-destruction by a sane person; and the policy provision controls, so that full recovery can be had for self-destruction while insane.
    3. Insurance — policy construed against insurer. — Doubtful language of an insurance policy is given the strongest interpretation against insurer which it will reasonably bear.
    4. Insurance — construction of statute. — -Crawford & Moses’ Dig.-, § 6076, as to contents of benefit certificates issued by fraternal benefit societies, has no application to an insurance contract issued before enactment of the statute.
    Appeal from Saline Circuit Court;' W. H. Evans, Judge;
    affirmed.
    STATEMENT OE EACTS.
    Lula McCray brought an action in the circuit court against the Eminent Household of Columbian Woodmen to recover the sum of $2,000 claimed by her as due upon a benefit certificate on the life of her husband, Willie N. McCray, in winch she is named as beneficiary. The policy was dated November 11, 1915, and the insured paid all the dues and assessments on the certificate. On the 18th day of June, 1921, the insured committed suicide by hanging himself with a rope from a rafter in his barn. Proof of death was furnished the company, as required by the policy.
    The policy, or beneficiary covenant, as it is termed, contains the following: “This covenant shall not be contested for suicide, but there shall be due and payable, in the event of said destruction, only one-fifth of the amount of benefits which would have been payable in the event of death by natural causes. ’ ’
    The defendant is a fraternal insurance company organized under the laws of the State of Georgia for the purpose of doing a general life insurance business, and is duly authorized to do business in the State of Arkansas. Sec. 236 of its constitution and by-laws reads as follows:
    “Suicide, or death by one’s own hands, whether sane or insane, shall not be contested, provided all the requirements and conditions of the covenants and the constitution have been complied with, but there shall be due and payable, in the event of such self-destruction, whether sane or insane, only one-fifth of the amount of benefits which would have been payable in the event of death by natural causes.”
    The case was tried before the court sitting as a jury. The court found that the plaintiff should recover the face of the covenant or insurance policy sued on, less the lien accrued against it. Whereupon judgment was rendered in favor of the plaintiff against the defendant for $1,817.86.
    To reverse that judgment, the defendant has duly prosecuted 'an appeal to this court.

      Robert G. Knox and Hamilton Moses, for appellant.
    The constitution and by-laws of appellant formed a part of the contract. 81 Ark. 512; 52 Ark. 201; 104 Ark. 528; 135 Ark. 65; 145 Ark. 313; § 6076, C. & M. Dig. The suicide provision of the policy should be enforced. 15 Wall. 580; 36 Atl. 734; 65 N. Y. 232; 66 S. W. 37; 68 N. W. 48; 60 N. E. 39; 79 N. E. 160; 118 Fed. 377; 41 S. W. 464; 31 N. W. 780; 79 N. E. 160; 41 Atl. 362; 88 N. W. 687; 222 S. W. 967; 117 S. W. 788; 49 S. W. 153; 17 L. R. A. -N. S. 364; 239 S. W. 37; 221 S. W. 758; 190 S. W. 712; 151 N. W. 314; 66 N. W. 697; 103 N. W. 402; 108 Pac. 870; Kerr on Ins. 395; 17 L. R. A. 91; 93 U. S. 284; 127 U. S. 661; 150 U. S. 475; 166 S. W.' 598; 39 So. 751; 49 Atl. 784; 4 Cooley, Briefs on Ins. 3248; Elliott on Ins. 368; Bacon on Benefit Societies 352; Yance on Ins. 552; Elliott on Contracts, sec. 4369; 14 R. C. L. 1232; 31 N. W. 779; 88 N. W. 687. .

      N. A. McDaniel, for appellee.
    The constitution and by-laws are a part of the contract unless inconsistent with the terms of the certificate. 52 Ark. 201; 55 Ark. 210; 80 Ark. 419; 81 Ark. 512; 105 Ark. 143. Sec. 6076, C. & M. Dig., was passed after the contract was made. The policy should be construed most strongly against insurer. 102 Ark. 1; 84 Ark. 432; 97 Ark. 425; 116 S. W. 314.
   Hart, J. (after stating the facts).

It will be noted that the covenant or policy sued on provided that it shall not be contested for suicide. The defendant was a fraternal insurance company, and one of its by-laws provided that “suicide, or death by one’s own hands, whether sane or insane, should not be contested,” etc.

In Sovereign Camp W. O. W. v. Compton, 140 Ark. 313, it was held that the constitution and by-laws of a fraternal insurance company become a part of the contract of insurance so as to bind the insured, provided they are not inconsistent with the terms of the contract. This rule is conceded by counsel for the defendant, but they claim that the covenant and by-laws above referred to, when read together, may be harmonized and have the same meaning as the by-law. On the other hand, it is claimed by counsel for the plaintiff that the terms of the covenant and the by-law are inconsistent with each other, and that therefore the language of the covenant must control.

We are of the opinion that counsel for the plaintiff is correct in his contention. As we have already said, the language of the covenant is that it shall not be contested for suicide. A leading case construing a clause of this sort is that of Life Insurance Co. v. Terry, 15 Wall. (U. S.) 580. The court said: “We hold the rule on the question before us to be this: If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.”

Again, in Connecticut Life Ins. Co. v. Akens, 150 U. S. 468, in discussing the question the court said: “This case is governed by a uniform series of decisions of this court, establishing that if one whose life is insured intentionally kills himself when his reasoning faculties are so far impaired by insanity that he is unable to understand the moral character of his act, even if he does understand its physical nature, consequence, and effect, it is not a ‘suicide’ or ‘self-destruction’ or ‘dying by his own hand,’ within the meaning of those words in a clause excepting such risks out of the policy, and containing no further words expressly extending the exemption to such a case.”

Many other cases stating the rule might be cited, but the rule is too well settled to render a further citation of authorities necessary. In order to avoid this construction placed by courts upon the words, “suicide,” “or death by his own hands,” insurance companies began to insert in their policies stipulations against “suicide, sane-or insane. ’ ’

In Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284, the policy excluded liability in case the insured should “die by suicide, sane or insane,” and it was held to be avoided upon proof that the insured shot and killed himself while insane. The court said that if the insured was conscious of the physical nature of his act and intended by it to cause his death, the policy was avoided, although at the time he was incapable of judging between right and wrong and did not understand the moral consequences of what he was doing. Continuing, the court said: “As the line between sanity and insanity is often shadowy and difficult to define, this company thought proper to take the subject from the domain of controversy, and by express stipulation preclude all liability by reason of the death of the insured by his own act, whether he was at the time a responsible moral agent or not. Nothing can be clearer than that the words, ‘ sane or insane, ’ were introduced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the insured was of sound mind or in a state of insanity. These words have a precise, definite, well, understood meaning. No one could be misled by them; nor .could an expansion of this language more clearly express the intention of the parties.”

Many other cases are cited by counsel for the defendant to the same effect, but, inasmuch as this is a leading case on the subject, we will not make any further citations, but will treat the by-law as having the meaning contended for by the defendant and as construed by the court in the case last cited. ■ When this is done, however, we. do not think that the'by-law and the covenant can be harmonized with each other. Stipulations against “suicide, sane or insane,” were placed in insurance policies in order to relieve the company from payment of the policy in all cases where the insured takes his own life. The “sane or insane clausev was inserted for the avowed purpose of changing the rights of the parties since the courts had construed the stipulation against suicide merely as referring only tó the acts of a sane mind. The language of the covenant would have to give way to the language of the by-law in order to harmonize them. This is contrary to the general rule on the subject. The covenant is the contract between the parties, and it is only where its terms are not inconsistent with the by-laws that the latter become a part of the covenant or policy of insurance. To hold otherwise would be to make the by-laws control the express language of the contract which the parties signed and to which their attention was expressly directed at the time of signing. Insurance policies are usually prepared on blank forms prepared by experts of the company, and where the language used is doubtful it must be given the strongest interpretation against the insurer which it will reasonably bear. Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1.

Sec. 6076 of Crawford & Moses’ Digest was passed by the Legislature of 1917, and has no application to this case, because the contract sued on was issued by the defendant in November, 1915, before the passage of the act.

It follows that the judgment will be affirmed.


author: Smith, J.

text:
    Mangrum v. State.
    Opinion delivered December 18, 1922.
    1. Intoxicating liquor — liability as accessory. — Where a constable took whiskey from one whom he caught manufacturing it, instead of arresting the latter, and returned from time to time for more liquor as the price of continued silence, he was an accessory after the fact to making intoxicating, liquor.
    2. Criminal law — repetition op instructions. — Refusal of instructions fully covered by the instructions given was not error.
    3. Criminal law — instruction—false testimony. — An instruction that “if you find that any witness has wilfully sworn falsely as to any material fact in issue in the case, then you may disregard all the evidence of such’ witness if you see fit and proper, or you may give regard to that portion of the evidence of such witness which you believe to be true and disregard that portion you believe to be false,” is open to a specific objection.
    Appeal from Craighead Circuit Court, Lake City District; B. E. L. Johnson, Judge;
    reversed.

      T. A. Turner and Oliver Hurst, for appellant.

      J. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was convicted under an indictment charging him with being an accessory after the fact to making intoxicating liquor, the crime' of making liquor having been committed by one Linzy Gyngard.

It is suggested by the State that none of the alleged errors assigned for the reversal of the judgment appear upon the face of the record, and that, as the bill of exceptions was not filed within the fifty-five days allowed by the court for that purpose, there are no questions presented for our review.

The judgment overruling the motion for a new trial and sentencing the defendant was entered on August 24, and in response to a writ of certiorari the clerk of the court below now certifies that the bill of exceptions was filed on October 17, 1922, which was within the fifty-five days allowed.

There are two motions for a new trial, one filed on August 24th, and another which the clerk of the court below certifies was filed as a substitute for tbe one filed on August 24th.

We must, of course, confine our consideration to the . motion for a new trial filed August 24th, as that is the motion passed upon by the court below. There appears to have been no authority for filing the substituted motion for a new trial, and we do not therefore consider the errors assigned which are not also assigned in the motion filed August 24th.

The first error assigned is that the indictment was not returned as required by law. An error was made by the clerk of the court below in numbering the indictments returned by the grand jury; but the court heard testimony showing the facts, and entered an order nunc pro tunc, from which, it now appears that the indictment was properly returned.

The second error assigned is that the court erred in overruling .the demurrer to the indictment. No error in the indictment is pointed out, and we perceive none.

The third ground of the motion for a new trial is that, the court erred in not directing the jury to return a verdict of not guilty because of insufficient testimony. On the question of the sufficiency of the testimony, it may be said that Gyngard admitted that he had made a little whiskey, and appellant had caught him doing so. Appellant was the constable of the township, and, instead of arresting Gyngard, as he should have done, he took a quart of the whiskey, with the understanding that he would say nothing about it, and he returned to Gyngard’s house from time to time for more of the liquor as the price of continued silence. This testimony, if true, constituted appellant an accessory after the fact. Stevens v. State, 111 Ark. 299.

The substituted motion for a new trial raised certain questions about the corroboration of Gyngard, which we do not consider, as they are not raised in the motion for a new trial which is properly before us.

The next ground for a new trial is that the court erred in refusing to give an instruction numbered 3 requested by appellant. This instruction appears to be fully covered by other instructions which were given.

The next ground for a new trial is that the court erred in giving an instruction numbered 7, and in refusing to'strike out of that instruction the words, “then you may disregard all the evidence of such witness.”

This instruction numbered 7 dealt with the credibility of witnesses, and concluded as follows: “While you cannot arbitrarily refuse to believe the evidence of any particular witness, on the contrary it is your duty, if y-ou can do so, in considering the evidence in the case, to harmonize the evidence of all witnesses who testify, still, if you find that any witness has wilfully sworn false as to any material fact in issue in the case, then you may disregard all the evidence of such witness, if you see fit and proper, or you may give regard to that portion of the evidence of such witness which you believe to be true and disregard that portion you believe to be false.-”

This instruction is not a correct declaration of the law; .and the objection to it is sufficiently specific to call the defect therein to the attention of the court. This defect is that it tells the jury that if they find any witness has wilfully sworn falsely to any material fact in issue, they may disregard all the evidence of such witness if they see fit and proper so to do.

An instruction of similar import was condemned in the case of Prewitt v. State, 150 Ark. 279, where we said: “In the case of Taylor v. State, 82 Ark. 540, an instruction of identical purport and of similar phraseology was reviewed 'and condemned by the court. Mr. Justice Rid-dick, speaking for the court, said: “This in effect tells the jury that if a witness has wilfully sworn falsely to any material fact, the jury may disregard his entire testimony, even though they should believe-part of it to be true. But the jury has no right to reject any material testimony they may believe to be true. If a witness testified to a wilful falsehood in reference to a material fact, the jury should take that into consideration in weighing other portions of his testimony; and, if they conclude that none of his testimony is worthy of belief, they should reject it; but they have no right to reject any truthful statement simply beeanse the witness has told a falsehood about something else. It may happen that a witness, because he wishes to shield himself, or for some other reason, may fail to tell the whole truth, may be guilty of a wilful misrepresentation as to his own interest in or connection with the crime, and yet, as to other facts throwing light on the crime, he may give evidence of the greatest importance. The jury, after being satisfied that he has sworn falsely as to any material matter, should scrutinize his other statements with great caution before accepting them as true; but, when once they become convinced that he has told the truth, they should not reject it. * * * ’ Other later cases to the same effect are: Griffin v. State, 141 Ark. 46; Johnson v. State, 127 Ark. 524; Johnson v. State, 120 Ark. 202.”

In the later cases of Murchison v. State, 153 Ark. 300, and Holmes v. State, 153 Ark. 399, we again condemned a similar instruction, but did not reverse the judgment in either of those cases, for the reason that no 'specific objection thereto was made. Here, however, there is a specific objection, and the judgment must be reversed.

No other errors appear in the record which we may consider; but, for the error indicated, the judgment is reversed, and the cause remanded for a new trial.


text:
    Crocker’s Heirs v. Crocker’s Heirs.
    Opinion delivered December 18, 1922.
    1. Wills — undue influence — submission op issue. — In a will con- ■ test it was not error to submit the issue of undue influence where such submission would have been an invitation to specu- ■ lation and conjecture on the part of the jury.
    2. Evidence — opinions of medical experts as to sanity. — In a will contest it was not error to permit graduate physicians of a number of years’ experience as general practitioners to testify as to testator’s sanity, though they had made no special study of insanity.
    3. Evidence — opinions op non-experts as to sanity. — In a will contest where the issue was as to testator’s sanity, persons not experts who came into intimate contact with testator may testify their opinions as to his sanity.
    4. Evidence — hypothetical questions. — Hypothetical questions must embrace all the undisputed facts which are essential to- the issue, but they may also include any relevant fact which competent testimony tends to establish and is sufficient to establish if credited by the jury.
    5. Wills — contest—instruction.—Where testator left his entire estate to his wife, it was not error, in a contest by testator’s heirs against -heirs of the wife, to refuse an instruction advising what disposition would be made of testator’s property if the will was not upheld.
    Appeal from Woodruff Circuit Court, Northern District; J. M. Jaclison, Judge;
    affirmed.

      E. M. Carl-Lee and Mehaffy, Donham & Mehaffy, for appellants.
    There was sufficient evidence of undue influence to require submission of the case to the jury. 106 N. W. 610; 88 N. W. 394; 28 S. 687; 29 Ark. 151; 40 Cye. 1337-1338; 109 N. W. 776; 128 S. W. 1092; 45 S. W. 456; 28 Atl. 400; 95 8. W. 200; 94 S. W. 883; 32 Atl. 255; 36 Atl. 139; 62 Atl. 716; 17 S. 516; 28 R. C. L. 405-407; 88 N. W. 394; 90 N. W. 682; 103 N. W. 502; 59 N. T. S. 421; 87 Ark. 148; 191 S. W. 963; 226 S. W. 35; 113 N. E. 958; 171 S. W. 156; 177 Pac. 451; 231 S. W. 630. The opinion of non-expert witnesses should have been excluded. 103 Ark. 196; 61 Ark. 245; 15 Ark. 555; 64 Ark. 523; 76 Ark. 286; 54 Ark. 588; 106 N. W. 610; 19 Ark. 533; 39 L. R. A. 715, note; 118 N. E. 906; 64 Ark. 523; 91 Pac. 542. The hypothetical questions assumed facts not in evidence, -and this is a ground for reversal. 87 Ark. 243.

      Harry M. Woods and Roy D. Campbell, for appellees.
    Influence springing from natural affection is not undue influence. 93 Ark. 75; 49 Ark. 367; 87 Ark. 148. The opinions of non-experts -are admissible as to mental capacity when all facts upon which the opinions are based are in evidence. 97 Arle. 457; 61 Ark. 245; 103 Ark. 220; 136 Ark. 156. The instructions given have been approved. 103 Ark. 187; 97 Ark. 457; 87 Ark. 243. The hypothetical questions were properly admitted. 64 Ark. 532; 94 Ark. 75; 23 Ark. 730; 21 Ark. 349.
   Smith, J.

This case is a contest of the will of L. J. Crocker, made about ten days before his death. The testator was seventy-eight years old, and left no children. He devised his entire estate to his wife, G-abriella Crocker, who survived her husband only a short time, and the litigation is between the heirs of the husband and the heirs of the wife.

It was the theory of the contestants that the testator had senile dementia, and that the manifestations of that infirmity became more pronounced as the testator approached his end, and that he did not have the mentality essential to constitute testamentary capacity at the time the will was executed. There was also certain testimony which contestants say was sufficient to raise an issue for the jury as to whether the execution of the will was procured by undue influence, an issue which the court refused to submit, upon the ground that the testimony was insufficient to warrant the submission of that issue to the jury-

There was testimony tending to support the contention of contestants that the testator did not possess testamentary capacity, and, had the jury so found, we would not disturb the verdict as being without testimony legally sufficient to support that finding. Two physicians testified as experts on behalf of the contestants and expressed the opinion, upon the hypothetical question submitted to them, that the testator was insane. Those physicians never knew the testator personally.

Three other physicians who knew the testator testified as experts and expressed the contrary opinion in response to the hypothetical question submitted to them.

So far as the expert testimony is concerned, it may be said that the usual difference of opinion existed which is found in all cases where witnesses undertake to testify as experts.

Error is assigned in admitting the testimony of the three physicians who expressed the opinion that Crocker was sane, for the reason that they were not shown to be properly qualified, and because the hypothetical question was not itself a proper one. Exceptions were also saved to the giving and to the refusal to give certain instructions.

The issue of the testamentary capacity was submitted on instructions asked by the respective parties, which declared the law of that subject elaborately and correctly, and no objection is urged to the declarations of the law on that subject. It is insisted, however, that the court erred in refusing to submit the issue of undue influence to the jury.

. The testimony which it is said required the submission of that issue was substantially to the following effect: The will gave the entire estate to the widow, thereby excluding all persons of the testator’s blood from participation in the estate. The testimony of a man named Matkins that he had known Crocker for seven or eight years before his death, and that Dr. McGuire, the attending physician, came to witness’ store about a week or ten days or two weeks before the execution of the will here in question, and dictated a will, which witness wrote, and, after writing, returned to Dr. McGuire, and a few days thereafter witness was at Crocker’s house, and went into the sick-room with Mrs. Crocker, who aroused her husband and asked him about making the will, and told him he ought to make a will, and he repeated-the word “will” two or three times and went on talking about something else, and it was decided no will would be executed that day, and witness left the Crocker home. It' may be said that much of the testimony of Matkins was categorically denied by persons in position to know its truth; but we must, of course, assume that it was true and would have been believed by the jury. The remaining testimony tending to sustain the allegation of undue influence was that on one occasion Dr. McGuire had said to the testator that he (McGuire) had made a will and under it had given everything to his wife.

The testimony shows that the testator and his wife had grown old together, and that, although in their early married life there had been a separation, there had been a complete reconciliation, and for thirty years or more they had lived happily together. Two children were born to the union, but both of them died in infancy. Later a child was adopted, but it too died in infancy. The testator’s next of kin were some nephews and nieces, and the one living nearest resided in Missouri, and for many years there had been practically no communication between Crocker and his relatives. Of all the nephews and nieces only three had ever visited in Crocker’s home, and these three hád only made one visit each. Several disinterested witnesses testified that they had heard Crocker say that his relatives meant nothing to him; that he and Inis wife had together accumulated what they had^ and that the survivor would .take it all. Crocker and his wife had in fact taken the title to some lands as tenants by the entirety.

In his testimony Dr. McGuire admitted that he and Crocker had more than once discussed the subject of making wills. They were neighbors and friends, and witness was the family physician, and testified that he entered the army and went to France, and before going he told Crocker that he (witness) had made a will devising to his wife all the property he owned. Nothing further was said on the subject of making a will until after witness had returned from France, when Crocker told him that he was going to make a will and give his wife his property, and he requested that he be advised and reminded of this purpose if, in the opinion of the witness, he became seriously ill.

It is undisputed that the will which Matkins said he wrote is not the will which Crocker executed. The circumstances under which the will offered for prohate was written and executed are these. Crocker sent for Judge Summers, of Augusta, who for many years had been his friend and attorney. Summers testified that Crocker had spoken to him about writing the will several months before the will was executed, and had told him then that he wanted his wife to'have all of his property, as he was under no obligation to any of his relatives. This witness detailed the conversation he had with Crocker at the time, and stated that Crocker sat up in bed, unassisted, and signed the will. Witness asked how the will should be written, and Crocker answered: “Everything goes to Gaby, my lands, merchandise and bank stock, and everything goes to her, just make it that way. ’ ’ • Crocker told witness where to find pen and paper, and after the execution of the will Crocker called his wife into the room and told her he wanted her, after his death, to give Mr. Stacy’s son one of the fillies in his lot. Stacy was one of the attesting witnesses to the will, but he died before the trial in the court below. Summers further testified that he discussed with Crocker the details of other matters of business, and after a visit of about an hour and a half he was told by the physician that Crocker was talking too much, and was overtaxing his strength, and witness left and returned home.

There was testimony by a negro house-man that, after the execution of the will, Crocker left his bed and went into his lot to see about some of his stock. There is a conflict, however, about this statement, as the testimony on the part of the contestants is that Crocker was too weak for some time before his death to leave his room.

We think, under the testimony stated, that the court did not err in refusing to submit the question of undue influence. The statement of Dr. McGuire as to what he intended to do about his own will was made two years before, and at a time when there appears to have been no question about Crocker’s testamentary capacity, and this certainly was not undue influence. Assuming that tbe jury would have accepted Matkins’ testimony as true, we think it insufficient to support a finding that undue influence had been exerted in procuring the execution of the will. There was nothing surreptitious or covert about the remark which Matkins said Mrs. Crocker made to her husband. 'Besides, that will was not executed. The will offered for probate was prepared by Judge Summers, and a consideration of the testimony attending its execution leads to the conclusion that there was no testimony justifying the submission of the issue of undue influence.

The case of McCulloch v. Campbell, 49 Ark. 367, is one of the leading cases on the subject of testamentary capacity and undue influence in the execution of wills, and on this last subject it was there said: “As we understand the rule, the fraud or undue influence which is required to avoid a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator .was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. Rutherford v. Morris, 77 Ill. 397; 1 Redfield on Wills, 3d ed., ch. 10, § 30, pp. 523-4.”

When that test is applied to the testimony here, we think it would have been an invitation to speculation and conjecture on the part of the jury to say whether there had been undue influence.

As to the circumstance that the will excluded the blood kin of the testator from participation in ’his estate, it may be said that, according to the testimony of a number of disinterested witnesses, this appears to have long been the fixed purpose of the testator.

Error was assigned in allowing Drs. Dungan, McGuire and Brewer to express the opinion, based upon the hypothetical question submitted to them, that Crocker was sane. These doctors were graduates of reputable medical colleges, and were all actively engaged in the practice of their profession, and Dr. Dungan had practiced his profession for twelve years and had for two years been connected with the State Hospital for Nervous Diseases at Little Rock. The other two doctors admitted that they had made no special study of insanity, and had had no experience in the study and treatment of that disease other than that encountered in the general practice. Dr. Brewer had been engaged in the general practice for nineteen years. Dr. McGuire was the attending physician, and had been actively practicing medicine since 1908.

We think no error was committed in admitting the testimony of these doctors. They were graduate physicians, with an experience of from twelve to nineteen years, and had had the benefit of the observation and study of the disease of insanity which came to them as general practitioners within that time, although two of them admitted they had made no special study of the disease.

Of similar testimony Judge Battle said: “The question, asked Dr. Buchanan and his answer to the. same were competent evidence. He was a graduate of a medical school, and a physician of six years’ experience. Although he had no actual experience with respect to the subject of investigation, yet he can express an opinion as an expert on a matter pertaining to his profession, based upon knowledge derived from reading books upon the subject. It is for the jury to determine what value his opinion is entitled to under the circumstances, and to give it such weight as they think it deserves. Green v. State, 64 Ark. 532.” Arkansas S. W. Rd. Co. v. Wingfield, 94 Ark. 79.

Objection was made'to the testimony of a number of non-experts who testified that Crocker was sane, the ground of the objection being that they did not detail the facts on which they based their opinion. This is, of course, a prerequisite before a non-expert can express an opinion on one’s sanity; but we think the objection not well taken on the facts. Most of these witnesses were the persons who came most’intimately in contact with the testator, and their recital of this contact furnished the proper basis for the admission of their testimony.

A number of objections are made to the hypothetical question submitted to the doctors who testified that Crocker was sane. One of these objections was that it assumed as true certain facts which were, without support, in the testimony, the chief of these being that Crocker had for twenty years before his death enjoyed normal health, and that Crocker had never had a stroke of paralysis. Dr. McGuire testified that for a number of years he had been the physician in Crocker’s family, but that Crocker was himself rarely sick; and he also testified that Crocker had never, to witness’ knowledge, had a stroke of paralysis, and that witness knew the clinical history of Crocker, and there was no stroke of paralysis in that history

The assumption that one had enjoyed normal health for twenty years does not mean that one has not had serious illness within that time, for most persons within that span would have some serious illness, and the testimony of Dr. McGuire warranted the assumption in the hypothetical question that Crocker had had no paralytic stroke. Hypothetical questions must embrace all the undisputed facts which are essential to the issue; but, after embracing them, the questioner may include any relevant fact which competent testimony tends to establish and is sufficient to establish if credited by the jury. Taylor v. McClintock, 87 Ark. 243; Metropolitan Cas. Ins. Co. v. Chambers, 136 Ark, 93.

Under this test we think no error was committed in ' permitting the hypothetical question propounded by the proponents of the will to be used.

An instruction numbered 6, given at the request of the proponents, recited facts which the jury might properly consider in making up their verdict, and one of these was the disposition which the testator, contemplated making of his-property before executing the will. The objection to the instruction is that it did not limit the consideration of the jury to any particular time. No specific objection to this effect was made. Besides, the testimony on that subject did not relate to a time so far distant-from the date of the will as to indicate that it was irrelevant as being too far removed to show the testator’s purpose at the time the will itself was executed.

The court refused to give an instruction requested by contestants advising the jury what disposition would be made of Crocker’s property if the will was not upheld. No error was committed in this respect, as the very purpose of the will, if there was one, was to change the order of the devolution of the property — a fact which the jury, of course, knew — and the jury should have decided whether there was a will without any consideration of the equities of the case. If Crocker had the testamentary capacity to make a will (and that was the question submitted to the jury), then it was no concern of theirs that the testator had, by his will, given property to his wife which, upon her death, went to her heirs, but which, without the will, would have gone to his heirs.

Certain other exceptions in regard to giving and refusing instructions are urged, but we do not discuss them, for the reason that, in our opinion, the case was properly submitted upon numerous instructions given at the request of both parties, which declared the law applicable to the issue clearly and fully.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Olson v. Moody, Knight & Lewis, Inc.
    Opinion delivered December 18, 1922.
    1. Equity — jurisdiction op liens. — The province of equity is -to enforce existing liens against property, not to create them.
    2. Sales — remedy op vendor. — Equity has no jurisdiction to impound personal property in the hands of a vendee until the vendor can obtain a judgment for the purchase money and an execution to satisfy same, as the remedy at law is adequate.
    3. Sales — reservation op title — remedies of vendor. — Reservation of title in personal property until the purchase money is paid does not create an equitable lien in favor of. the vendor; his only remedies for breach being either to treat the sale as canceled and bring suit in replevin or to treat the sale as absolute and sue for the purchase money and attach the property, under Crawford & Moses’ Dig., §§' 8729, 8730.
    4. Equity — cross-bill supplying jurisdiction.- — -Lack of jurisdiction in a bill in equity by a vendor to declare a lien for purchase-money on personal property was not cured by a cross-bill alleging defects in the property and various items of expense and damage because of plaintiff’s alleged breaches of the contracts; such matters being cognizable at law.
    .Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      J. C. Marshall, for appellant.
    The complaint determines the jurisdiction. 87 Ark. 206; 74 Ark. 484; 139 Ark. 90. After delivery of personal property the seller has no lien unless provided for in the contract of sale. 24 B. C. L. 137; 35 Cyc. 486. Under a conditional sale contract, election to sue for the debt makes the sale absolute. 121 Ark. 262; 148 Ark. 151; 117 Ark. 496. The statutory lien may be created and enforced at law, but the statute itself does not create the lien. C. & M. Digest, §§ 8729, 8730; 7 Ark. 253; 39 Ark. 438; 52 Ark. 450; 24 B. C. L. 127; 45 Ark. 136; 49 Ark. 290; 88 Ark. 105; 77 Ark; 14; 99 Ark. 333; 71 Ark. 346; 84 Ark. 132; Pom. Eq. sec. 1235; 130 Ark. 535; 57 Ark. 13; 91 Ark. 218; 47 Ark. 363; 144 Ark. 199. The sale contract must be construed by the lex loci contractus. 233 Ark. 691; 214 U. S. 279; 118 U. S. 285. The conditional sale contract does not give a lien. 233 S. W. 691; 233 S. W. 928; 101 Ark. 469; 33 L. R. A. 854-26 S. E. (Ya.) 390; 53 N. E. (111.) 599; 29 Ark. 612; 140 P. 1051; 46 Ark. 96.

      T. N. Robertson, for appellee.
    The title was retained as security for the unpaid purchase money. 82 Ark. 9; 24 R. C. L. 770. In such a case equity will declare a lien. 35 Cyc. 696, 708, 665; 25 Cyc. 662; Pom. Eq. vol. 3, sec. 1235; Tiedman on Sales, sec. 221; 97 Ark. 432; Jones, Chattel Mortgages (5th ed.) sec. 58; 118 N. W. (la.) 393; 35 S. W. 396; 113 N. Y. S. 916; 70 Miss. 54; 50 Wis. 113; 26 S. W. (Ya.) 390; 53 Ark. 37. There is nothing in the statute taking away the inherent jurisdiction of equity. 28 Ark. 19; 80 Ark. 145. The equitable lien exists in a simple sale contract. 46 Ark. 271; 42 Mich. 320; 3 Pom. Sec. 1234. The demurrer and motion was to the complaint as a whole, and properly overruled. 37 Ark. 32; 4 Ark. 76; '72 Ark. 29; 35 Ark. 722; 31 Ark. 301; 31 Cyc. 329; Bliss on Code PI. § 417; 2 Bush 226; 16 Pick. 512; 90 Ark. 241. If the court had power' to give judgment in the cross-action in favor of the appellant, it had power to give judgment ag'ainst him. 77 Ark. 570; 37 Ark. 164; 37 Ark. 292; 14 Ark. 359'.

      J. C. Marshall, for appellant, in reply.
    The sale cannot be absolute and with a lien reserved at the same time. 5 L. R. A. N. S. 475; 149 Ark. 432. Statutes in .other States have changed the effect of conditional sale contracts, but there is no such statute in this State. The cross-action was cognizable at law. 22 Ark. 454; 53 Ark. 155; 139 Ark. 90; 78 Ark. 65; 90 Ark. 241.
   Humphreys, J.

Appellees instituted suit agiainst appellant in the Pulaski County Chancery Court to recover $800, representing the balance of the purchase money due on two Isko electric refrigerators, and $675 representing the purchase money due on an Isko electric refrigerator purchased at a later date, and to have a lien declared for tlie separate amounts upon and enforced against the respective machines. It was alleged that the title to the first' two machines was retained in the appellees- until the payment of the purchase, money; that at the time the third machine was sold to appellant he agreed to pay the balance of $800 due on the first two when that machine was installed in appellant’s place of business, and on that date to execute his note due September 1, 1921, for the purchase price of the last machine.

Appellees questioned the jurisdiction of the court to try the cause, both by demurrer and motion to transfer the cause to one of the divisions of the circuit court. The court overruled each, over the separate objections and exceptions of appellant.

Appellant then filed an answer, and cros-sbill, which was later amended so as to allege, in substance, a failure to install the machines according to the written contracts, made exhibits to the bill, to the damage of appellant in a large sum, for which he prayed a judgment against appellees, after deducting the balance due on the contract price for the machines.

The cause was heard upon the pleadings and testimony adduced by the respective parties, which resulted in a decree declaring a lien upon the machines for the unpaid purchase money and ordering same sold to satisfy the judgment.

From the decree an appeal has been duly prosecuted to this court.

By an agreement of the parties the transcript does not contain the testimony introduced in the cause, but contains the pleadings and exhibits only, as the sole question which appellant desires to present on appeal is whether the chancery court had jurisdiction to try the cause under the allegations of the bill. We proceed at once to. a determination of that question. The purpose of the bill, as gleaned from its allegations and prayer, was to obtain and enforce a lien for purchase money against personal property in the hands of a vendee, a 'part of .which had been sold, and delivered to him unconditionally and a part upon condition that the title should remain in the vendors until the purchase money was paid. This court has frequently decided that no lien exists in favor of a vendor on personal property in the possession of a vendee in absolute.sales for the purchase money thereof; that none existed at the common law after the property passed out of the possession of the vendor (Burnett v. Mason, 7 Ark. 253; Ferguson v. Hethrington, 39 Ark. 438; Fox v. Ark. Industrial Company, 52 Ark. 450); that none was given by sections 8729 and 8730 of Crawford & Moses’ Digest; that said sections provided' a method for seizing personal property in the possession of a vendee until the vendor could .obtain a judgment for .the purchase money and order of sale of the property to satisfy same. Bridgeford v. Adams, 45 Ark. 136; Swanger v. Goodwin, 49 Ark. 287; Roach v. Johnson, 71 Ark. 344; Neal v. Cohn, 76 Ark. 273; Howell v. Crawford, 77 Ark. 12; Mattar v. Watham, 99 Ark. 329; Gordon Hollow Blast Crate Co. v. Zearing, 130 Ark. 535. The province of equity is to enforce existing liens against property, not to create them. No necessity exists in this State for equity to mold a remedy to impound personal property in the hands of a vendee until a vendor can obtain a judgment for unpaid purchase money and an execution to collect same, as the remedy at law is adequate. It is urged by appellee that a reservation of title in personal property until the purchase money is paid necessarily creates an equitable lien in favor of a vendor for the purchase price, enforceable in a court of chancery. This court is committed to the- doctrine that a vendor who has retained purchase money has only two remedies for a breach of the contract. He may either treat the sale' as canceled and bring suit in replevin for' the property, or may treat the sale as absolute and sue for the unpaid purchase money, and, in aid thereof, attach the property, under 8729 and 8730 of Crawford & Moses’ Digest. Butter v. Dodson, 78 Ark. 569; Hollenberg Music Co. v. Barron, 100 Ark. 403; Jones v. Bank of Commerce, 131 Ark. 362. There is no suggestion in any of the Arkansas cases that a third remedy is open to a vendor who has conditionally sold personal property. As stated before, a vendor has an adequate remedy at law, and no necessity exists for equity to mold a remedy to preserve his rights.

Appellees make the further contention that,-if their bill lacks equity for any reason, the defect was cured by the crossbill, which contained allegations calling for affirmative equitable relief. The crossbill contains many allegations with respect to defects in the machines, and installation and operation thereof. It also sets out in detail the various items of expense incurred and the damage resulting on account of the alleged breaches of the contracts on the part of appellees. We have read the crossbill and amendment thereto carefully, and have concluded that the subject-matter contained therein is strictly cognizable in a court of law.

For the error indicated the decree is reversed, -and the cause remanded, with direction to transfer the case to the circuit court.

Justices Hart and Smith dissenting.


text:
    Stone v. Crofton.
    Opinion delivered December 18, 1922.
    Divorce — custody op child. — Where, on a divorce of, his parents, the custody of a boy of four years was awarded to his grandfather, and six years later the mother applied for his custody, in view of the grandfather’s 'advanced age and the ability of the mother to furnish better school facilities, an order transferring the child to the mother’s custody will not be disturbed.
    Appeal from Howard Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      J. G. Sain and D. Ben Sain, for appellants.
    The father is generally to be preferred as custodian of a child. 37 Ark. 27; 117 Ark. 90; 95 Ark. 355; 89 Ark; 501. The evidence does not justify a change of custodian. 78 Ark. 193.

      W. P. Feasel, for appellee.
    The welfare of the child is of controlling importance. 50 Ark. 318; 78 Ark. 193; 102 Ark. 93; 106 Ark. 197.
   Humphreys, J.

Appellee instituted suit against W. C. Stone, in the Howard Chancery Court, to obtain the permanent custody of her son, who was about ten years of age. D. E. Stone, the father of the boy, intervened, and by proper pleadings issue was joined as to ■ which of the three, D. E. Stone, the father, W. C. Stone, the grandfather, or appellee, the mother, was entitled to his custody.

Appellee and her husband, D. E. Stone, were divorced in 1917, and the custody of their boy, then four years of age, was awarded to W.. C. Stone. At that time W. C. Stone owned and resided upon 320 acres of land in Black Land Township. He owned considerable property, and was able and willing to care for and educate his grandson. His immediate family consisted of himself and wife. After obtaining the custody of his grandson he and Ms wife maintained and supported him as became their station in life. The neighborhood in which they lived afforded both school and church facilities. The schools, private and public, were taught about six months during the year. The boy attended regularly, and had advanced to the third grade when this suit was commenced. W. C. Stone is now 73 years of age and his wife 50.' He still owns and resides upon his home place, and is able to and desirous of supporting and educating his grandson.

D. E. Stone regarded the home of W. C. Stone as headquarters, but resided elsewhere most of the time. Subsequent to the separation and divorce he rented land at various- places and lived alone. He did his own housekeeping. He liad a small amount of personal property when the separation occurred, and accumulated very little afterwards. Appellee remarried. She and her husband, Wren Crofton, reside in Mineral Springs, Arkansas. They have no children, own a home, and are able and willing to care for, support, and educate appellee’s son. The church and school facilities in Mineral Springs are good. Schools are taught there nine months in the year.

All parties to this suit are moral, upright citizens.

The record reflects that appellee visited the child on an average of three times a year. Her excuse for not visiting him oftener was that she was made to feel unwelcome in the home of W. C. Stone. She was unable to recall any particular act of inhospitality on the part of the grandparents. She testified that she was not permitted, when visiting them, to converse privately with her son. Her statement in this regard was unchallenged. W. C. Stone testified, however, that he extended every courtesy to appellee on the occasion of her visits.

The cause was submitted to the court upon the pleadings and testimony thus summarized, which resulted in the decree for appellee, for the reason that it was to the best interest of the child to be under the care and protection of his mother. The father and grandfather have prosecuted an appeal to this court.

Appellant, I). R. Stone, insists that the decree should be reversed and'the custody of the child awarded to him upon the ground that the father is the natural protector and giiardian of his children. In support of the contention that the father is preferred over the mother or other blood relations with reference to the custody of his children, the following cases are cited: Verser v. Ford, 37 Ark. 27; Baker v. Durham., 95 Ark. 355; Jackson v. Clay, 89 Ark. 501; Andrews v. Andrews, 117 Ark. 90. These cases do lay down the rule that the father will generally be preferred if, under all the circumstances of the particular case, the best interest of the children will be subserved by awarding- their custody to him. The rule announced in these cases, however, has been changed by statute in this State, in contests between parents for the custody of their children. Sec. 3 of act 257, Acts 1921 of the General Assembly, is as follows :

“Where the husband-and wife areliving apart, there may be an adjudication of the court as to their power, rights and duties with respect to the persons and property of their unmarried minor children. In such cases there should be no preference between the husband and the wife, but the welfare of the child must be considered first in determining the custody of such child, -or the control of its property. * * * ” According to the testimony, the mother is in much better condition to care for and educate the child than the father. The chancellor Avas correct in awarding the boy to appellee in preference to D. R. Stone.

Appellant, W. C. Stone, contends that the court erred in preferring appellee OArer him. While the law prefers the mother over grandparents in reference to the custody of children, there are facts and circumstances in this case which militate against appellee. She has shoAvn little interest in her child, and has permitted the grandparents to expend their means and time upon him for five years. Strong ties of affection have been permitted to grow up between the child and his grandparents. If the apparent neglect of the mother and the ties of affection existing between the child and grandparents Avere the only thing’s to be considered, the equities would greatly preponderate in favor of the kind, generous grandparents. There are other things reflected by the record, which, no doubt, appealed very strongly to the chancellor. The school facilities were much better Avith the mother than the grandparents. The grandfather hád passed his three score and ten, and, in the natural order of things, must live on borroAved time in order to be the protector and adviser of the boy during his adolescent age and young manhood. If the child had been permitted to remain Avith the grandparents he' would grow up Avithout either the father’s impress or the mother’s personal toucli, the most wholesome and telling influences in a life* The mother’s seemingly dormant affection had revived and betokened good for the child. With these- things in mind, and regarding the interest of the child of first importance, we are unable to say that the decree of the chancellor was erroneous.

The decree is affirmed.

Justices Hart and Smith concurring.


text:
    Furst & Thomas v. Varner.
    Opinion delivered December 18, 1922.
    1. Guaranty — burden to prove release. — -A guarantor pleading a release has the burden of proving same.
    2. Guaranty — release—jury question. — In an action upon a guaranty, where the guarantors claim a release by reason of letters written to and received from the creditor, the issue of release, being dependent on the authenticity of the letter, was for the jury.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Avery M. Blount, for appellants.
    .The appellees, in substance, admit the execution of the contract, and claim a release. No release was given. There was no laches or presumption against appellants for not producing testimony from the opposite parties to the suit. 20 R. C. L. 293; I Blackford’s Reports 313; 12 Am. Dec. 243. The burden was on appellees to prove Bowers did not have authority. There was no denial of his authority in the pleadings, and the motion for new trial 'should have been granted on the newly discovered evidence therein set up.

      John E. Miller and C. E. Yingling, for appellees.
    Bowers was acting as a volunteer and not as agent, and Varner was not bound. 96 Ark. 505; 60 Mich. 150; Storey on Agency, sec. 255-258; 96 U. S. 640; Clark & Skyles on Agency, §§ 110, 136; 137 Ark. 530. The answer should be considered amended to conform to the proof. 62 Ark. 431; 33 Ark. 811. IJo proper diligence to procure the evidence now set up as new was shown. 132 Ark. 617; 112 Ark. 507; 117 Ark. 71; 142 Ark. 223. The release inured to the benefit of Dewberry. 12 R. C. L. 1086; 44 Ark. 349; 21 R, C. L. 1050.
   Humphreys, J.

Appellants instituted suit in the White County Circuit Court to recover an alleged balance, on open account, of $l,20i.86 from J. H. Goodman, as principal, and T. J. Bowers, E. R. Dewberry and E. T. Varner, as guarantors or sureties, under written contract for the payment of the account.

J. H. Goodman had disappeared, and personal servicé was not obtained upon him.' Personal service was obtained upon the sureties.

T. J. Bowers and the appellees filed answers, denying the alleged indebtedness, and, by way of a separate defense, T. J. Bowers and E. T. Varner pleaded a written release, and by way of an additional defense E. R. Dewberry pleaded that the written release of T. J. Bowers and E. T. Varner, without his knowledge or consent, effected his release, if in fact accepted and bound under the contract of indemnity; he also alleged that he was notified, after signing the indemnity contract, that appellants would not accept him as a surety, which refusal and notification effected his release.

The cause proceeded to a hearing upon the pleadings and deposition of Frank E. Furst. No other witness testified in the case. When the deposition had been read, the court directed a verdict releasing and discharging E. T. Varner and E. R. Dewberry, and rendered judgment in accordance therewith, from which is this appeal.

The record reflects that on the 30th day of July, 1914, appellants entered into a written contract with J. H. Goodman to sell him merchandise, from time to time, on a credit, and on the same day entered into an indemnity contract with appellees and T. J. Bowers, whereby they guaranteed the payment of all goods sold and delivered to the principal, Goodman; that in February, 1915, appellants received a letter purporting to be signed by J. H. Bowers and E. T. Varner, requesting that they be released as sureties upon the indemnity contract; that ap-' pellants responded as follows:

“While wo cannot release you at this time from responsibility for the balance due us on his account, we, of course, will not make any further shipment to him under the contract. We will notify him at once of your desire to be released, and will give him an opportunity to furnish another contract if he cares to do so. Of course,' in the event that he furnishes a new contract, you will be released as soon as the new one is accepted. Should he not do that, then we will hold you responsible, under the contract which you signed, until the balance due on his account is settled.”

In response, they received the following letter, dated March 8, 1915, purporting to be from T. J. Bowers and E. T. Varner, in reply to the above quoted letter:

“Messrs. Furst & Thomas,
“Freeport, 111.
“Dear sirs: After talking to Mr. Goodman and considering the matter, we have decided to remain on his bond, and will kindly ask you to send us a statement of how the account stands at this time, so that I may see how the business is going. I realize tire fact that it would put Mr. Goodman in a bad shape to lose out at this time, and will help him through with this, and feel sure that he will make good.
. “With very best wishes, we are yours,
“T. J. Bowers,
“E. T. Varner,
“By T. J. B.”

Upon receipt of the letter of March 8, 1915, appellants immediately replied to both T. J. Bowers and E. T. Varner, in separately addressed envelopes, as follows:

“We have your letter of March 8th, signed by yourself and Mr. T. J. Bowers, in which you state that, after talking to Mr. Goodman, you have decided to remain on his contract as guarantor, and that we may now ship him goods on his orders and let him go ahead with his business.
“We know Mr. Goodman greatly appreciates this action on your part, and we trust that you will never have occasion to regret it.
“In response to your request we inclose herewith a statement'showing the business reported by Mr. Goodman since January 1st of this year and the balance due on his account. Further statements will be sent you at any time upon your request for them.”

“ The court instructed a verdict releasing appellees upon the theory that the record failed to show E. T. Varner authorized T. J. Bowers to sign his name to the letter of date March 8,1915. Both letters purported to be from Bowers and Varner, but neither was authenticated. Both constituted the correspondence touching upon the same matter. The first letter requested a release and the second withdrew the request. If both letters were genuine, they did not effect a release of appellees. Without something in the record to show to the contrary, both should have been treated as genuine. The)'' were received through the mail by appellants, and, as stated above, related to the same subject and purported to have been written by the same parties. Appellees pleaded a release, and the burden was upon them to establish it. The undisputed proof introduced by appellants does not show a release. It almost, if not conclusively, establishes no release.

In the present state of the record, it would have been more nearly correct to direct a verdict for appellants than for appellees.

The issue of release should have been submitted to the jury upon proper instructions, same being dependent upon the authenticity of the' letters.

For the error indicated, the judgment is reversed., and the cause remanded for a new trial.