author: ■Smith, J. Humphreys, J.

text:
    Adams v. State.
    Opinion delivered March 24, 1930.

      Colemcm & Reeder, for appellant.

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

Appellant was indicted and tried in the Independence Circuit Court upon a charge of having made or caused to be made a false entry upon the books of the Union Bank & Trust Company, of which institution he was the president, whereby he was falsely given credit for a deposit of $75,000, which was not in fact made, with the intention to deceive the State Bank Commissioner, the bank examiner, and the directors and stockholders of said bank, as to the true condition of the account of the said Adams with said bank. He was convicted, and appealed to this court, where the judgment was reversed, and the cause remanded for a new trial. The facts out of which the prosecution arose, and upon which the conviction was had, are fully stated in the opinion rendered on that appeal. Adams v. State, 179 Ark. 1047, 20 S. W. (2d) 130.

It was assigned as error on that appeal, that the court should have g*ranted a change of venue as prayed, but we held that no error was committed in this respect, for the reason that the petition for a change of venue was not supported by the affidavits of two credible persons as the statute requires, but the judgment was reversed for another reason.

Upon the remand of the cause a new petition for a change of venue was filed, and the prayer thereof was denied by the court, as was the former petition, upon the ground that the affiants were not credible persons within the meaning of the statute. Upon the first petition the court held that only one of the affiants was credible, whereas, at the trial from which this appeal comes, there was only a general finding upon the subject that the petition did not meet the requirements of the law-in respect to the credibility of the supporting affiants.

W. L. Seymore, an affiant "held credible by the trial court at the first trial, was one of four affiants who supported the petition for a change of venue at the second trial, and he and three others were examined at the trial from which this anneal comes at great length touching the extent and source of their information upon which thev based the oninion that the defendant could not obtain a fair and impartial trial.

No affirmative testimony was offered affecting tlie credibility of any of the affiants, and it is only contended that the}* were not sufficiently advised as to the state of the public mind to afford a substantial basis for the opinion that a fair and impartial trial could not be obtained.

The law of this subject was clearly and sufficiently stated in the opinion on the former appeal, and no useful purpose would be served by a restatement.

Seymore’s testimony was even more comprehensive upon his examination at the second trial than it had been at the first. W. J. DeCamp -was an affiant who signed only the second petition for a change of venue. He testified that he was a former sheriff of the county, was in the insurance business, and had heard the case discussed practically all over the county by people who resided in different sections thereof; that there were but few days when he was out in the country that he did not hear the case discussed, and that it appeared to be the principal topic of conversation, that is, the failure of the bank of which defendant was president, and his connection with the bank and its failure, and that nothing had ever occurred in the county which had been more generally discussed or had aroused more feeling. This affiant and the others gave names of persons in each township about which they were asked who had discussed the prejudice existing against defendant, and among others named as having expressed the opinion that great prejudice existed were the prosecuting attorney • and special counsel employed in the prosecution.

As the witnesses, 'Seymore and DeCamp, testified as to the state of the public mind throughout all parts of the county, and do not appear to have sworn recklessly or without knowledge of the facts, and there was no fact or circumstance adversely affecting the credibility of these affiants, the venue should have been changed as prayed. We find it unnecessary to review the testimony of the other affiants.

The second trial, like the first, resulted in a verdict of guilty, and it is now insisted that certain questions presented on this appeal were also raised on the former appeal but were not there discussed or dispoesd of. "We do not think so. The former opinion discussed and disposed of all the assignments of error which we thought were sufficiently important to require discussion, and this opinion appears to have been substantial^ followed at the trial from which this appeal comes.

The defense is threefold: (1) That there was no false entry within the meaning of the statute under which the indictment was drawn; (2) if there was, defendant did not make it or cause it to be made; (3) the entry was not made with the intention of deceiving the Bank Commissioner or the examiners representing his department.

The testimony in the present case is not substantially different from that offered at the first trial, and in the former opinion we defined a false entry, and held that the testimony was sufficient to support a finding that a false entry was made, and we adhere to what was there said on that subject.

It is earnestly insisted, however, that the undisputed testimony shows that the defendant did not make a false entry, nor cause it to be made, and that a verdict of not guilty should have been directed for that reason; but we do not agree with counsel in this contention. It is true the testimony affirmatively shows that defendant did not personally make the false entry upon the books of the bank, and gave no specific directions that it should be made, but the testimony does show that defendant presented the draft to Kennard, the cashier and bookkeeper, with a deposit slip covering the draft. Defendant, as president of the bank, did not keep the books, but he knew, of course, how they were kept, and they were kept under his supervision or at least the jury might have so found. The testimony shows the manner of handling items of this character. An entry of the transaction must necessarily have been made upon the books of the bank before defendant could receive credit for the deposit, and when defendant, as president of the bank, presented the •draft and a deposit slip covering it to the cashier, there was an implied direction from defendant, as chief executive officer of -the bank, that the transaction in which he participated be handled in the usual and ordinary way, and its entry on the books of the bank was a part of this routine.

It was, of course, necessary for the State to show that the purpose of the transaction was to deceive the Bank Commissioner, or the examiner, but this was a question of fact which the instructions submitted to the jury.

The judgment of conviction on the former appeal was reversed, because the court had excluded testimony tending to show the good faith of the defendant and the absence of any intention to deceive, and this testimony was admitted at the trial from which this appeal comes. The defendant testified that he thought, and had good reason to believe, that the draft would be honored and paid in due course. As tending to rebut this contention, the State was permitted to show the relation of defendant to the account against which the draft was drawn, and the admission of this testimony is assigned as error.

We think this testimony was competent as bearing upon the important question of the defendant’s good faith. If defendant had the right, as we held on the former appeal he did have, to show a reasonable expectation that the draft would be paid, it was competent for the State to'show in rebuttal that such was not the fact, and this could only be done by showing defendant’s lack of. authority to draw -and deposit the draft, and to cause an entry thereof to be made.

Certain other assignments of error are discussed, but we think the present and former opinion sufficiently dispose of them without further discussion being necessary.

No error appears except the refusal to change the venue as prayed, but for this error the judgment must be reversed, and tlie canse remanded, with directions to enter an order changing the venne, and for further proceedings according to law.

Humphreys, J.

I dissent because the trial court did not abuse his discretion in reaching the conclusion that the affiants in support of the petition for a change of venue were not credible persons within the meaning of the statute.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Maddox v. Hamp Williams Hardware Company.
    Opinion delivered March 24, 1930.

      J. B. Long, for appellant.

      Walter J. Hebert, for appellee.
   Humphreys, J.

This suit was brought 'by appellee against appellant for a balance of $300 due upon a note executed by appellant to appellee for a used Ford truck.

Appellant filed an answer and cross-eomplaint, in which, he admitted the execution of the note, alleging the return of the truck, stating that he was not bound by the contract because he was a minor at the time he executed the note and praying for judgment for $180 which he had paid appellant on the truck.

The cause was submitted to the court without the intervention of a jury upon the pleadings and testimony, resulting in a judgment in favor of appellant for $180, the amount he had paid appellee on the contract; and against him for $300, the balance due on the note.

From the judgment against him’, appellant has duly prosecuted an appeal to this court.

Appellant and his mother testified that he was a minor at the time he purchased the motor truck and executed the note therefor. Appellee objected to the introduction of the testimony as a defense to the note on the ground that he had not pleaded his minority as a defense thereto in his answer. The court admitted the testimony over the objection and exception of appellee.

Porter Wilson, secretary-treasurer of appellee, testified that appellant had been working for himself about two years; that he represented that he was twenty-one years of age when he signed the note, and that he was buying the motor truck for his brother to use for business purposes and profit; that neither appellee nor any of its employees accepted the truck in satisfaction of the debt when returned by appellant, and notified him it would not do so; that when it was left there appellee put the truck in storage to protect it from the weather.

The undisputed testimony showed that before the truck was returned appellant paid appellee $180 on the purchase price thereof.

In order to render judgment in favor of appellant for $180 on account of the money paid by him to appellee under the contract, it was necessary for the court to find appellant was not bound on the contract because of his minority. There is ample testimony in the record to sustain this finding which the court necessarily made. After rendering a judgment in favor of appellant for said sum upon the theory that he was not bound upon the contract, it was inconsistent on the part of the court to render a judgment against him for the balance due on the note or under the contract.

' Appellee argues that the judgment against appellant for the balance due on the note was correct, because he had not affirmatively set up in his answer that he was an infant or minor when he signed the note. The answer and cross-complaint were filed under one cover, and, when treated as one pleading, appellant sufficiently interposed his minority as a defense to the action. It is true this defense was set forth in the cross-complaint proper, but it was set forth therein as a defense to the action as well as a basis for the recovery of the $180 he paid to appel-lee under the contract. It would indeed be very technical to hold otherwise. We think in the pleading filed appellant’s minority was affirmatively pleaded as a defense to the cause of action.

Appellee also argues that the contract was for a necessity, and that the judgment rendered by the trial court against appellant is correct for that reason. The record reflects that appellant did not buy the truck for himself or for his individual use, but on the contrary bought it for his brother. Certainly it cannot be said that a minor can buy anything for the use of his relatives and be -bound on the contract on the theory that it was a necessity for himself.

On account of the error indicated, the judgment in favor of appellee against appellant for $300 is reversed, and the cause of action dismissed.


author: Humphkeys, J.

text:
    Rainey v. Rainey.
    Opinion delivered March 24, 1930.

      R. M. Hutchins and Coulter S Coulter, for appellant.

      Marsh, McKay $ Marlin, for appellee.
   Humphkeys, J.

The only question for decision presented on this appeal is the priority between two chattel mortgages, both of which were executed by W. P. Rainey, the first in point of time to appellee, J. Gr. Newkirk; and the second in point of time to appellant, R. T. Rainey. The question of priority, if raised at all in the trial court, turned upon whether the J. Gr. Newkirk mortgage had the proper' indorsement thereon at the time it was filed in the office of the circuit clerk and ex-officio recorder of Union County. Section 7384 of Crawford & Moses’ Digest provides, in substance, that a mortgage of personal property shall become a lien upon the property therein described against strangers from the time of filing, provided the following words are indorsed thereon, “This instrument is to be filed, but not recorded,” and which indorsement is signed by the mortgagee, his agent or attorney.

The trial court decreed the J. Gr. Newkirk mortgage prior and paramount to the R. T. Rainey mortgage.

Appellant contends for a reversal of the decree upon the alleged ground that the record reflects at page 110 of the transcript that the R. T. Rainey mortgage, filed after the J. Gr. Newkirk mortgage, had the following notation on the back thereof: ‘ ‘ This instrument is to be filed but not recorded. R. T. Rainey, mortgagee”; whereas, the J. Gr. Newkirk mortgage, found on pages 6 to 11 of the transcript, had the following notation on the back: “Filed but not recorded,” which, it is claimed, was not a proper filing for a chattel mortgage under the section of the statute referred to.

It is true that a purported copy of the Newkirk mortgage appears as an exhibit to appellant’s complaint on the pages of the transcript referred to, and that the copy does not reflect the indorsement required by the statute, but page 76 of the transcript reflects that the original J. Gr. Newkirk mortgagee on file in the clerk’s office of Union County had the following notation on the back thereof: “This instrument is to be filed but not recorded,” which is signed by J. Gr. Newkirk.

The indorsement complies with the statute, and fully sustains the decree of the trial court to the effect that said mortgage was prior and paramount to the R. T. Rainey mortgage.

No error appearing, the decree is affirmed.


author: Kirby, J.

text:
    Supreme Lodge of Woodmen of Union v. Walker.
    Opinion delivered March 24, 1930.

      J. D. Shackelford, for appellant.

      Arthur D. Chavis, for appellees.
   Kirby, J.

This appeal is prosecuted from a judgment against appellant, upon a policy of insurance or a benefit certificate for $500 issued to William Walker, colored, naming appellees beneficiaries therein. The insured was recmired to pay $1.25 per mouth for his membership and insurance, which provided a sick benefit of $5 per week for total disability, and $3 per week for partial disability. Walker was taken sick about the first Sunday in April, 1927, while in good standing in the Union, and continued sick until his death in October, 1927. During the sickness in the last of August, 1927, appellant paid Walker sick benefits amounting to $8 through the local lodge of Pine Bluff, under the policy for which credit was given when suit was brought for the balance of $492, and for which judgment was recovered.

Appellant company claimed that insured had failed to pay his dues or premium for the month of August, during that month, and his policy had lapsed on that account, and denied any liability.

The testimony is in conflict: that on the part of ap-pellees tending to show that the August premium was paid in August within the time designated therefor by the by-laws of the Union, while the evidence upon appellant’s part conduced to show that the August dues or premium was not paid to the local agent until early in September, after the time for payment had expired; that it was never sent to the treasurer of the Union at Hot Springs at all, but later on, after the death of the insured, was returned by the local agent to one of the beneficiaries, the widow declining to accept it. The check for the sick benefit, $8, was for the month of August, and was delivr ered to the insured sometime during the last of that month.

The question for determination is one of fact, whether the August dues Avere paid. Although the insurance company could not declare a forfeiture of the sickness or accident policy for nonpayment of installments of premiums or dues while it had in its own hands due the insured on account of sickness a larger amount of money than was required to pay the installments of premiums or due thereunder (Continental Casualty Co. v. Baker,) and could have deducted from the benefit or indemnity due the member for August the amount of his dues or premium — $1.25—for that month unpaid on the 15th, it did not do so, but paid the whole amount, none of which was returned to it. It may be conceded, that tlie preponderance of the testimony shows that the dues for August were not given to the local agent of the Union at Pine Bluff until after the month of August had expired, and on September.,., hut, as already said, the testimony was in conflict on this point, and the jury found in appellees’ favor on instructions not complained of, and upon substantial testimony sufficient to support the verdict, which cannot be disturbed on appeal.

The judgment is accordingly affirmed.


author: Kirby, J.,

text:
    Dake v. Woodcock.
    Opinion delivered March 24, 1930.

      .0. H. Sumpter, for appellant.

      G. T. Cotham, for appellee.
   Kirby, J.,

(after stating tbe facts). Appellant insists that the court erred in decreeing a foreclosure upon tbe mortgage and tbe rendition of tbe decree against tbe executor, tbe claim against the estate of Emily Dake not having been probated and being barred by tbe statute of nonclaim. Tbe suit was properly brought for foreclosure of tbe lien against tbe property mortgaged or conveyed by tbe deed of trust without probation of a claim against tbe estate of one of tbe makers, deceased, of the secured note. No judgment was sought against the estate of the decedent, but only foreclosure of the lien of the mortgage executed by the decedent as security therefor. Hall v. Denckle, 28 Ark. 506; Arkmo Lumber Co. v. Cantrell, 159 Ark. 456, 252 S. W. 901.

There is no contention that the debt secured by the mortgage ivas barred by the statute of limitations, § 7408, C. & M. Digest. Mueller v. Light, 92 Ark. 522, 123 S. W. 646, 31 L. R. A. (N. S.) 1013.

The executor of the estate of deceased, maker of the note, was a necessary party to the suit for the determination of the amount due on the note for payment of which the lien was to be foreclosed. Under the allegations of the complaint, the money borrowed by Charles Dake, $533, was for payment of taxes, interest, etc., the payment of which was also secured under the terms of the mortgage, and, Charles Dake having succeeded to the ownership of the property mortgaged under the provisions of the will of his wife, and expressly agreed that the payment of the notes was secured by the terms and conditions of the original deed of trust, there was no error in foreclosing the lien of the mortgage for its payment.

We find no error in the record, and the decree is affirmed.


author: Mehaefy, J.

text:
    Austin v. Huie.
    Opinion delivered March 24, 1930.

      M. Rountree, for appellant.

      II. W. Hide, Jr., for appellee.
   Mehaefy, J.

Tliis is an action in ejectment begun by appellee for the recovery of the possession of certain lands described in the complaint. Appellee had recovered judgment against the appellant for four hundred and twenty-five dollars ($425), execution was issued, the land described was sold by the sheriff, and appellee became the purchaser. The sheriff’s sale was June 28, 1928. The sheriff executed a deed to appellee on July 3, 1929, more than a year after the sale. The suit was begun on July 3, 1929, the day the sheriff’s deed was executed. Appellant filed a general demurrer which was overruled, and appellant filed motion to dismiss on the ground that the complaint showed on its face that it was filed on the same day of1 the sheriff’s deed, and that the action could not 'be maintained until the expiration of ten days after the execution of the deed. This motion was overruled, and appellant excepted. Appellant then, without waiving his demurrer, filed answer denying the allegations of the complaint, and alleging that he was a married man, and that the land in controversy was his homestead, and that he and his family had occupied it as a homestead for the past twenty years. He also alleged that the action was prematurely brought. Appellant requested the court to direct a verdict in his favor, which the court refused. There was a verdict and judgment for appellee, and this appeal is prosecuted to reverse said judgment. Appellant concedes that the court properly instructed the jury on the question of homestead, and that the verdict on this question is conclusive. Appellant contends, however, that his demurrer should have been sustained because the statute gives the purchaser his remedy. The following section is cited and relied upon: “Upon the execution of the deed, the grantee, if possession is not delivered within ten days, may proceed, by forcible detainer, to 'be put in possession thereof.” 0. & M. Digest, § 4340.

Appellant also cites and relies on the following section: “Upon the execution-by a sheriff of a deed to real estate sold under execution, tlie grantee, if possession is not delivered in ten days, may proceed, by forcible de-tainer, to be put in possession thereof.” Section 4841, 0. & M. Digest.

While appellant discusses the demurrer, the motion to dismiss and the court’s refusal to direct a verdict separately, he relies on the above quoted section of the digest to sustain his contention as to each. Appellant would be correct if the remedy suggested by him was made exclusive by the statute. But it is not exclusive, but cumulative. As to suits in ejectment the statute provides: “Such action may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises.” Section 3686, C. & M. Digest.

“The fact that a summary remedy is given by statute will not prevent the bringing of a suit in ejectment, where there is nothing in the statute from which it may be inferred that the statutory remedy was intended to be exclusive. Thus ejectment lies where the remedy by forcible entry and detainer is not exclusive, but merely cumulative; but it is -otherwise where such remedy is made exclusive. ” 19 C. J., p. 1032.

‘‘ The contention is urged, that plaintiff had mistaken his remedy in bringing ejectment in this suit, and in not proceeding under § 1020 of the Code of Civil Procedure, by action of forcible entry and detainer. It can hardly be possible, that this contention is seriously relied upon, as it has long been held that, where the holder of the legal title to real estate is dispossessed, his proper remedy is by ejectment. Gregory v. Bank, 16 Neb. 411, 20 N. W., 286. While § 1020 of the Code would have permitted plaintiff in this case to proceed by forcible entry and de-tainer, yet such provision is plainly cumulative, and not an exclusive remedy.” Abbott v. Coates, 52 Neb. 247, 86 N. W. 1058.

“It is true that by §§ 2233-2236, a summary remedy is given, where the unlawful entry and detention is the result of physical force, by a proceeding in a district court, but the plaintiff is not restricted to such a course, any more than in a case where a tenant in possession refuses to surrender upon the expiration of his tenancy. He may, if he so elects, resort to his action of ejectment, and in the same suit recover his damages, which may he trebled if the wrongful entry and withholding are shown to be of the character described in § 1669.” Compton v. The Chelsea, 139 N. Y. 538, 34 N. E. 1090.

Sections 4340 and 4841 of Crawford & Moses’ Digest do not provide an exclusive remedy. Plaintiff could have pursued the remedy therein provided, but he was not required to do so. He had the right to bring his suit in ejectment, as the other remedies are not exclusive but cumulative.

The judgment of the circuit court is affirmed.


author: Mehaeey, J.

text:
    Mechanics’ Lumber Company v. Yates American Machine Company.
    Opinion delivered March 24, 1930.

      Cravens <& Cravens, for appellant.

      Clinton R. Barry, for appellee.
   Mehaeey, J.

This action was begun by appellee to recover on a written contract for goods and machinery sold and delivered to appellant by appellee. A copy of the contract sued on is attached'to complaint/ and made a part thereof.

Appellant filed answer denying- the material allegations of the complaint. He admitted the execution of the contract sued on, but stated that on the same date, at the same time, and as a part of the same transaction and contract, he entered into a written contract with appellee by which appellee sold him No. 2 á-in. x 8-in. Yates American Sash Clamp Figure 8855, single motion clamp' with sash attachment, nearly new, at and for the price of $260 • to be in fine running condition with all regular equipment; a copy of which contract is attached to appellant’s answer, and made part thereof. Appellant further alleged in its answer that at the time plaintiff’s representative, H. J. Flanders, called upon it on March 14, 1928, and induced it to purchase machine as described in appellee’s exhibit “A” and appellant’s exhibit “A,” the appellant declined and refused to purchase said machine or any part thereof unless it could be assured that the contract marked exhibit “A” to appellant’s answer should be considered a part of the purchase contract, and that appellant should be assured of the sale and delivery of the machine mentioned in its exhibit “A”, otherwise it refused to purchase any of the said machinery, and that thereupon the appellee’s representative, H. J. Flanders, sent to it the following telegram: “C93 13 Collect XU-Fort Smith, Arkansas 14 150P Yates American Machine Company Beloit, Wisconsin. Advise if rebuilt item naught seven naught four four available answer quick. Signed H. J. Flanders.” To which the said representative of appellee received the following reply: “Beloit, Wisconsin, March 14, 1928 2:55 P-.M. H. J. Flanders, Fort Smith, Arkansas, Eetel item No. 07044 Clamp is available. Signed, Yates American Machine Company. ’ ’ Which telegram from Flanders to the Yates American Machine Company was shown to the appellant, also reply telegram, whereupon the contract for the sale of all of the machinery as shown in appellee’s exhibit “A” and appellant’s exhibit “A”, were entered into upon the assurance by the duly authorized representative of the appellee, H. J. Flanders, that the contract for the sale of said machine would be considered as one contract although evidenced by two different writings. It was further alleged in the answer, that it was understood, and so placed in said contract, that the order should he rushed, and that the same rush order applied to appellant’s exhibit “A”, but that appel-lee in shipping the machinery described in its exhibit A failed to ship the two motors described therein, and delayed shipping the same for some five or six weeks, thereby preventing the appellant from the use of said machinery for said period of time, to its damage in the sum of $100, and that when the one No. Gr-44 cut off saw motor was received by appellant, it was found to be defectively wired, which defects the appellant had to have remedied at an expense of $., a reasonable charge therefor, and further deprived the appellant of the use of said machine until the same could be properly conditioned, to the appellant’s damage in the sum of $100, and that the appellee failed and refused to ship the Yates American Sash Clamp Machine with equipment as described in appellant’s exhibit “A”, which was" sold to the appellant for the price of $260, and that, upon the failure of the appellee to ship said machine a'nd equipment, the appellant was advised by the appellee, that such a machine as the appellant had purchased could not be furnished for less than $560, which was $300 in excess of the sale price made by the appellee to the appellant, and said machine at the time the appellee refused to ship same to the appellant was of the reasonable value of $560 to its damage in the sum of $300, and that appellant later had to go into the market to purchase such a clamp sash machine as it had contracted to purchase from the Yates American Machine Company, and paid therefor $480, but that said machine so purchased was not of the same quality or value as the machine appellant had contracted to purchase from the appellee, and was worth $80 less than said machine, and could not be delivered at the time the appellant was advised by appellee it would not ship the sash clamp machine sold by it to appellant; that at the time of the purchase of said sash clamp machine from the appellee, appellant advised appellee’s representative that it had at that time certain larg’e contracts which required the manufacture of a large bill of sash and doors, and that said machinery was needed by said appellant at once in the manufacture of said required stock, and upon the failure of the appellee to ship said machine the appellant was required to manufacture said sash and doors which it had contracted to deliver, by the use of hand clamp machines, which made said sash and doors cost said appellant in filling the orders which had already been contracted for and which the appellee had been advised had been contracted for, in excess of what it would have cost, had the sash clamp machine ordered from the appellee been delivered, in the sum of $500. Appellant admits that it is indebted to appellee in the sum of $1,181 less the amount it claims to have been damaged, and tenders into court the sum of $181 and accrued costs.

The appellant introduced evidence supporting the allegations of its answer.

Appellant contends first that the court should have directed a verdict for it, for the reason that it denied in its answer that appellee was a corporation, and no proof was offered to establish the fact that it was a corporation, and also for the reason that there was no proof that the appellee ever approved or accepted the order for new machinery, and offered no proof as to the value of the machinery shipped. The denial that appellee is a corporation is in substance the same words as the denial in Loose-Wiles Biscuit Co. v. Jolly, 152 Ark. 442, 238 S. W. 613, and the court there said: “The effect of this allegation is not to deny that defendant is a corporation, but to deny that it is organized and doing business under the laws of the State of Missouri.” Besides, in this case the appellant dealt with the appellee as a corporation, and sought to recover damages in the case against it as a corporation, and would therefore be estopped from denying that it was a corporation. Wesco Supply Co. v. Smith, 134 Ark. 23, 203 S. W. 6; Jones v. Dodge, 97 Ark. 248, 133 S. W. 828, L. R. A. 1915 A, 472; Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319.

Appellant claims that it was entitled to an instructed verdict also because the contract for new machinery does not show that it was ever accepted by appellee or any one duly authorized to act. A sufficient answer to this contention is that appellant signed the order, and the g’oods described in the order were shipped to appellant and accepted and retained by it and one-third of the contract price was paid in cash. "We therefore, do not think that there is any merit in this contention of appellant.

Appellant's next contention is that the court erred in directing* a verdict for the appellee. It is contended that the two orders for machinery constituted one contract. It is argued that the only apparent reason for the contract to he evidenced hy two separate writings is the fact that appellee’s agent had two forms of contracts, one for the sale of new machinery and the other for the sale of second-hand machinery, and that proof offered upon the part of appellant shows conclusively that appellant refused to enter into the contract unless he could have the goods described in both contracts, and that thereupon the appellee’s agent sent the telegram set out above and received the reply set out above and showed them both to appellant, but the order signed by appellant upon which the goods were shipped showed on its face that it was a mere proposal hy the appellant, and subject to the approval of the appellee at its office in Chicago, Illinois. Each of the orders or contracts contains this provision. The appellant was therefore bound to know when he signed these orders that they were not binding on appellee until approved by it at its office in Chicago. It is true that the fa&t that a contract was evidenced by two different writing’s would not necessarily constitute two different contracts, but in the instant case we think it clear that there were two separate, distinct proposals, and, if accepted in the office in Chicago, would have been two separate contracts. The.first case relied on by appellant is Vaugine v. Taylor, 18 Ark. 65. In that case, however, the court said: “Does the agreement made between Wilson and the heirs of Yallier by reference and recitation become a part of the deed from the heirs of Yallier to Wilson, so that, in construing the one, we may legitimately consider the other, or, in other words, should they properly be construed together for the purposes of this suit?” It appears therefore that, hy reference and recitation, one of the contracts referred to the other, and it also appears that each instrument related' to the same subject-matter. In the instant case, there is no reference in either instrument to the other, and the subject-matter is wholly different.

The nest case referred to, that of Pillow v. Brown, 26 Ark. 249, appellant quotes from p. 249 of said opinion. The quotation itself, however, shows conclusively that the connection between the two transactions is established by their contents, without any necessity of referring to other matter to connect them together, and they will be taken as one entire agreement. If the instruments in the instant case referred to each other so as to show that they did constitute one contract, there would be a wholly different case here. There is no evidence, that any knowledge of the conversation or statements made ¡between appellant’s representative and the representative of appellee were ever made known to the ap-pellee. Appellee’s salesman only took orders. The orders signed by appellants themselves show that no sale was made until it was approved at the home office in Chicago. In other words, that the salesman had no right to consummate the- sale.

“Where two or more written statements are executed on the same day and relate to the same subject-matter, and one refers to the other, the presumption is that they evidenced but a single contract; but it does not necessarily follow that this is the fact.” 13 C. J. 530.

As we have already said, these two instruments d'o not relate to the same subject-matter, and neither of them referred to the other. Besides, these instruments referred to different transactions — one of them for the purchase of certain new machinery, and the other for the purchase of second-hand machinery. If both instruments related to the same subject-matter, and either referred to the other, they might be considered and interpreted together.

“But construing contemporaneous instruments together means simply that, if there be any provisions in one instrument limiting’, explaining or otherwise affecting the provisions of another, they will he given effect as between the parties themselves, and all persons charged with notice, so that the intent of the parties may be carried out, and that the whole agreement actually made may be effectuated. This does not mean that the pro-lusions of one instrument are imported bodily into another contrary to the intent of the parties. They may be intended to he separate instruments and to provide for entirely different things.” 6 R. C. L. 852.

We agree with the principles contended for by appellant that where two or more instruments are executed at the.same time, relative to the same subject-matter, and one refers to the other either tacitly or expressly, they are to be taken together and construed as one instrument. Appellant calls attention to many authorities in support of this rule. We do not, however, think they apply in this case, because each contract in this case, or each instrument, was separate and complete, and neither referred to the other in any way. Moreover, there is no evidence that the appellee ever had any notice before the completion of the sale that appellant contended that the two had any connection. Appellant is correct in his contention that contracts may be made by telegrams and letters, and this court has several times held that, when so evidenced, it- is the duty of the court to interpret the contract and declare its terms. In the instant case, however, the only telegrams introduced was a telegram from the appellee’s salesman to appellee, and a reply to that telegram. In other words, an exchange of telegrams between appellee and its salesman, and these do not' purport to make a contract. The contract sued on is plain and unambiguous, and both parties are bound by its terms, and it would serve no useful purpose to review the authorities to which attention has been called by the parties. If the second contract had been executed, if it had tbeen accepted at the Chicago office, then it would have been binding, and the appellant would have been entitled to damages for its breach, but the contract on its face shows that Flanders signed it as salesman for the Yates American Machine Company, stating on the contract itself that it was subject to approval at appellee’s office in 'Chicago. Until accepted, neither of the instruments could be sued upon by either party, and neither party is entitled to damages for breach of a contract which has not been made. In this instance, each had not been accepted by the office in Chicago. Appellant contends that he had the agreement with the salesman, but, after he claims that agreement was made, he signed the separate orders, and in neither was there any suggestion that it was dependent on any. other contract or any circumstances not stated in the contract, but the contract signed by appellant contains the following statement: “In case of rejection or return of the property for any reason whatsoever, the purchaser waives all claims, demands and charges against the seller except to claim recovery of purchase money paid; that a retention of the property forwarded after thirty days from the dale of arrival shall constitute an acceptance, by a conclusive admission of the truth of all representations made by or for the consignor, and void all its contracts of warranty, express or implied.” This is a plain, unambiguous statement, binding on both parties. The appellant might have put in the contract a condition that it was not binding unless the goods mentioned in the other order were shipped, but he did not do so. The contract also contains the following statement : “It is agreed that this contract is not modified or added to by any agreement not expressly stated herein. ’ ’ This statement was in the contract signed by appellant. No matter what the conversation with the salesman was prior to this time, when he agreed to this contract with the above statement in it, he thereby agreed that it was not modified or added to by any other contract. Moreover, the contract stated “that delivery at any specified time is waived; that all claims for damages, actual or speculative, because of delayed shipments are waived. If from any cause whatever you are unable to obtain delivery from the manufacturer, you shall not be held liable for any damages thereby resulting to the undersigned by reason of such non-delivery or delayed delivery.” We think the above contract is so plain and unambiguous that the parties were bound to have understood its terms, and they were bound to understand that it was not modified or added to by any other contract, and under the terms of the contract, the damages claimed by appellant could not be recovered, and therefore the evidence tending to; show the damages was not complete.

Appellant complains about the refusal of the court to give certain instructions. He does not abstract the instructions, but, the conclusion having been reached that the court correctly directed a verdict for the appellee under the evidence in the case, it was of course not error to refuse to give the instructions requested by appellant.

The evidence was sufficient to justify the trial court in directing a verdict, and the judgment is therefore affirmed.


author: McHaney, . J.

text:
    Scroggins v. Osborn Company.
    Opinion delivered March 24, 1930.

      Morrow & Williams, for appellant.

      Hugh Basham, for appellee.
   McHaney, . J.

Appellant, as administrator of the Wm. Scroggins estate, on September 9, 1926, filed his report and settlement with the clerk bf the probate coui’t of Johnson County. .On January 17, 1928, no exceptions having been filed by any heir or creditor, the probate court made an order approving same. The next day the appellees who claim to be creditors took an appeal to the circuit) court, and at the May term, 1929, the latter court, on a trial de novo found that the probate court erred in allowing appellant $1,008.74 for expenses incurred in administering said estate, and also in allowing him credit for. $2,698.25 paid on the fourth class claim of Beal-Burrow Dry Goods Company against said estate. From this judgment of the circuit court there is an appeal and cross-appeal.

As to the first item above mentioned, it appears from the record that the probate court first allowed appellant $1,385.57 as commissions due for handling the estate, but on appeal to the circuit court, at the October term, 1926, the court found that appellant was only entitled to $381.83 as fees for his services as administrator, for which judgment was rendered, and disallowed the sum of $1,003.74. This judgment was certified bade to the probate court, and no appeal was prosecuted to .this court, and it has therefore become res judicata as to the amount of fees or commissions due the appellant as administrator. Thereafter on January 17, 1928, the probate court entered the order approving the report and settlement heretofore mentioned, in which the sum of $381.83 was allowed as commissions in compliance with the judgment of the circuit court. But the court also found “that .the administrator has made numerous trips from his home to Lamar, Arkansas, in the handling of said estate, and that the said administrator has been put to great expense in said matter, it is therefore the order of the court .that said administrator have the sum of $1,003.74, in addition to this said commission, to compensate him as expenses in the handling of said estate.” The law fixes the administrator’s compensation for his services, § 183, C. & M. Digest, and no additional compensation may be allowed, either as expenses or otherwise. True, he is entitled to his ordinary expenses actually incurred in the administration of the estate, but in such case he should file an itemized statement of such expenses showing the necessity therefor, and that they were incurred for the benefit of the estafé. Here appellant did not file an itemized statement or any other statement showing the amount of his expenses. He merely stated in his report that he had “been to considerable expense * # ' * made numerous trips from DeQueen, Arkansas, to Clarksville, * * * and that he believes * * * lie ought to be paid for the expense of said trips. ’ ’ He asked the court to allow him such an amount for expenses as ‘ ‘ the court may deem proper. ’ ’ This was an insufficient showing to justify the court bo make an allowance for expenses, and the circuit court properly disallowed it on the face of the record, since there was no evidence introduced in the circuit court tending in any way to justify this allowance.

As to the second item for $'2,698.25 paid to Beal-Burrow Dry Goods Company on a fourth-class claim, appellant’s report and settlement does,not show that! he took credit therefor therein. The proof shows the claim was paid in February, 1926, and the report was filed in September, 1926. If appellant paid the claim, he should have taken credit for it in his account. Since he did not do so, we think it was error to surcharge his account in this respect.

Appellees have cross-appealed, contending that the court erred in allowing the widow dower in the sum of $5,776.07 and in allowing appellant credit in his account for the sum of $6,045.64 paid tio various creditors on account as shown in his report. "We do not agree with this contention. If appellees complained of these items in the circuit court, the record does not show it. They filed no exceptions to the report in the probate court, and none in the circuit court. It was not necessary that they do so in the probate court in order to appeal to the circuit court, as contended by appellants, as this court has held to the contrary. Stricklin v. Galloway, 99 Ark. 56, 137 S. W. 804. See also § 2258, C & M. Digest. But in the circuit court on appeal we think the appellees should have filed exceptions in writing challenging the particular items objected to. 3 Woerner on American Law of Administration, p. 1848-1849.

Moreover, appellees did not file a motion for a new trial, and are therefore in no position to complain of the above items.

The case will therefore be reversed and remanded ■as to the item $2,698.25, and in all other respects it will be affirmed. It is so ordered.


author: McHaney, J.

text:
    Robinson v. Holman.
    Opinion delivered March 24, 1930.

      Jno. A. Ilibbler, Booher <fb Booher, and Scipio A. Jones, for appellant.

      June P. Wooten and B. K. Hawthorne, for appellee.
   McHaney, J.

Appellants brought this action to establish their right as negroes and Democrats to vote in Democratic primary elections in this State. The ap-pellees are members of the Democratic City Central Committee of Little Rock, Democratic Primary election officials of said city in a primary election held November 26, 1928, for the purpose of selecting nominees of the Democratic Party for city officials, and the chairman and secretary of the Democratic State Central Committee. The case was submitted to the chancery court on an agreed statement of facts substantially stated as follows: That appellants are citizens, residents and taxpayers of the city of Little Rock, Arkansas, are qualified electors, and supported the Democratic nominees in the general elections in 1926 and 1928; that they voted in the Democratic city primary held in Little Rock on November 26, 1928, by reason of a temporary restraining order issued by the chancery court, enjoining the primary officials from excluding them, without the consent or approval of the officials of the Democratic State Central Committee; that they have expressed and declared themselves in sympathy with the success of the Democratic Party, and are believers in its principles; that the following is one of the “Rules of the Democratic Party in Arkansas, adopted October 16, 1926, under the authority of the Democratic State Central Committee of Arkansas” which said rule is now in force, to-wit: “Whom to consist of § 2. The Democratic Party of Arkansas shall consist of all eligible and legally qualified white electors, both male and female, who have orally declared their allegiance to the principles and policies of the Democratic Party, as set forth in the platform of the last preceding Democratic National and State Convention, who have supported the Democratic nominees at the last preceding elections and who are in sympathy with the success of the Democratic party in the next succeeding election.”

It was further agreed that, for the last 25 years in the State of Arkansas, all Democratic nominees had been elected at the succeeding elections for State officials, except members of the Legislature, and a few district officials.

The court dismissed ,the complaint for want of equity, and dissolved the temporary injunction theretofore issued. The case is here on appeal.

Appellants contend that a Democratic primary election is a public election under the Constitution and the laws of Arkansas, and that ,tthe above party rule deprives them of their right to vote solely because of color in violation of the Fifteenth Amendment of the Constitution of the United States. They further claim that they are being denied their rights as citizens of the United States in violation of the equal protection clause of the Fourteenth Amendment of ¿¡he Constitution of the United States. Section 1 of the Fourteenth Amendment reads as follows: “All persons horn or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United 'States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

Section 1 of the Fifteenth Amendment reads as follows: “The rights of citizens of the United States to vote shall not be denied or abridged by the United Slates, or any State, on account of race, color or previous condition of servitude.”

By the act of April 23, 1909, p. 505, now § 3754, C. & M. Dig’est, primary elections in this State were made legal elections in the following language: “Whenever any political party in this State shall, by primary election, nominate any person to become a candidate' at any general election, regular or special, or for U. S. Senator, or for 'Congress, or any legislative, judicial, State, district, county, township or municipal office, the said primary election shall be, and is hereby made, a legal election.” In 1917, the people of the State initiated and adopted what is commonly referred to as the Brundidge Primary Election Law, the objects and purposes of which were to safeguard the rights of candidates, to prevent fraud in primary elections, and to confer jurisdiction on the circuit courts in the matter of contests . arising at the primary elections. This act fixed a definite time for holding elections, provided for printing of ballots, selection of judges and clerks, their duties and many other provisions and regulations set out in §§ 3757 to 3782, both inclusive, C. Sr M. Digest.

Nowhere is there tlo be found any provision in the statutes of Arkansas requiring any political party to hold primary elections. The acts above mentioned are applicable only in the event the political party does hold a primary election.

It will be noticed that the prohibition in the Fourteenth Amendment is directed against the action of the State, “Nor shall any State * * * deny to any person within its jurisdiction the equal protection of the law. ’ ’ Likewise the prohibition in the Fifteenth Amendment is directed against the action of the United States or of any State, “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color,” etc.

The State of Arkansas has passed no law, depriving- appellants or any other qualified electors, on account of color or for any other reason, of the right to vote. The party rule above quoted is merely a rule of the Democratic Party in Arkansas with which the State liad nothing to do. A political party such as the Democratic Party in Arkansas is an unincorporated, voluntary association of persons sponsoring- certain ideas of government or maintaining- “certain political principles or beliefs in the public policies of the government.” Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; Grigsby v. Harris, 27 Fed. (2d) 942. As said by U. S. District Judge Hutcheson in Grigsby v. Harris, supra, (Texas): “But the fact remains that the objects of political organizations are intimate to those who compose them. They do not concern the general public. They directly interest, both in their conduct and in their success, only so much of the public as are comprised in their membership, and then only as members of the particular organization. They constitute no governmental agency. To provide nominees of political parties for the people to vote upon in the general elections is not the business of the State. It is not the business of the State, because in the conduct of the government the State knows no parties and can know none. Political parties are ■ political instrumentalities. They are in no sense governmental instrumentalities.”

The State has nothing* to do with the holding of primary elections. The statute fixes the date for holding* primary elections, but the 'State appoints no officers to hold a Democratic primary. It does not pay the cost thereof. The machinery for holding a Democratic primary election in Arkansas is entirely an instrumentality created by the party with which the State, as a State, has nothing to do. Whereas in a general election the entire machinery for holding such election is the creature of the State.

Appellants have cited no case that sustains their contentions. The cases cited and relied upon grow out of discriminations complained of in general elections with the exception of Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446. That case was a suit for damages against the judges of elections for refusing to permit the appellants to vote in a primary election in Texas. The right to vote was denied them by reason of a statute of that State which provided that <£in no event shall a negro be eligible to participate in a Democratic Party primary election held in the State of Texas.” The Supreme Court of the United States undoubtedly was correct in holding the act unconstitutional as being in violation of the Fourteenth Amendment, and found it unnecessary to consider the matter under the Fifteenth Amendment. After the decision in this case, the offending* statute was repealed, and the Democratic Party in Texas adopted a rule similar to the rule of the Democratic Party in Arkansas, above quoted, and the same Nixon, having* been deprived of the privilege of voting in the Democratic primary in Texas, brought another action for damages against the election judges at a Democratic primary in Texas refusing-him the. privilege of voting therein. The case was tried before District Judge Boynton of the Western District of Texas, El Paso Division, on July 31, 1929. The style of the case is Nixon v. Condon, 34 Fed. (2d) 464. It is there held that the action could not be maintained for the reason that the members of the Democratic executive committee or the judges at ,the election in question were not officers of the State of Texas, nor were they officials or agents of the State of Texas. It was further said: “The court also holds that the members of a voluntary association, such as a political organization, members of the Democratic Party in Texas, possessed inherent power to prescribe qualifications regulating membership of such organization, or political party. ’ ’ See also United States v. Gradwell, 243 U. S. 476, 37 S. Ct. 407; Karem v. U. S., 121 Fed. 250; R. C. L., p. 1075; Newberry v. U. S., 256 U. S. 232, 41 S. Ct. 469.

'Being a voluntary political organization and not an agency of the State, the Democratic Party had the right to prescribe the rules and regulations defining the qualifications of membership, and to provide that only white people could .become members, without coming within the prohibition of either the Fourteenth or Fifteenth Amendment. The fact that nominees of the Democratic Party in Arkansas are always elected at the general election does not alter the situation. Neither does the fact that appellants are Democrats, that they believe in the principles of the Democratic party, and that they supported the nominees in previous general elections. There is no more reason to say that the Democratic party in Arkansas cannot make the rule in question, than there is to say that the Masonic bodies in Arkansas may not exclude them on account of color.

It necessarily follows that the chancery court correctly dismissed the complaint for want of equity. Decree affirmed.


author: Btjtleb, J.

text:
    Lineback v. Howerton.
    Opinion delivered March 24, 1930.

      A.- L. Smith, for appellant.

      E. B. Hunt, for appellee.
   Btjtleb, J.

On the 19th day of March, 1929, E. 0. Howerton, a Cherokee Indian, member of one of the Five Civilized Tribes, died in Delaware County, Oklahoma, at his place of residence, leaving real estate and personal property in said county, and real estate in Benton County, Arkansas, and also certain government bonds of considerable value in the custody of the First National Bank of Siloam Springs, Benton County, Arkansas. Howerton had resided at Siloam Springs, Arkansas, for a short time, and there became indebted to the Producers’ State Bank of Siloam Springs in the sum of $1,500, evidenced by two promissory notes executed, respectively, on the 19th and 21st days of December, 1927, due in 90 and 60 days after date. Payments had been made on the notes in question which reduced the amount due to $1,478.97. After the death of Howerton an effort was made to collect from Irene Howerton, the widow of E. 0. Howerton, on the two notes, but payment had been refused on the ground that they were not just claims.

On the 20th day of May, 1929, the Producers’ State Bank filed in the probate court of Benton County a petition for the appointment of an administrator on the estate of Howerton, deceased, setting forth his death in Delaware County, Oklahoma, the indebtedness due by the deceased to the petitioner in his lifetime, and that the deceased left no relatives in Benton County who would be entitled to administer his estate, but left a widow and two infant children in Delaware County, Oklahoma, and that the widow had refused to administer on the estate of deceased in Delaware County, Oklahoma, or elsewhere; that the deceased owned an estate in Benton County, Arkansas, and prayed that citation be issued to Mrs. Howerton to show cause why an administrator should not be appointed in Benton County, Arkansas. The hearing of the petition was set for June 17, and notice of the application given Mrs. Howerton, who, on the day set for the hearing of the application, appeared and filed objections to the appointment of the administrator for the 'reason that the court had no jurisdiction to hear the application or to grant the administration, and that the statutory time in which to have an administrator appointed in the State and county of the decedent’s residence had not expired. On the hearing the court rendered judgment in favor of the petitioner, appointing W. L. Lineback administrator, who qualified and gave bond. Letters were duly issued to, him by the clerk of said court, from which order and judgment Mrs. Hower-ton appealed to the circuit court of Benton County, and on the 18th day of September, 1929, renewed her motion to dismiss on the ground that the deceased died domiciled in, and a resident of, Delaware County, Oklahoma, that he was a member of the Five Civilized Tribes and a Cherokee Indian by birth, and that the court was without jurisdiction to hear and determine the petition for administration, and that the order made by the probate court was void.

A response was filed to this motion, and the case was heard on the pleadings and the testimony of a number of witnesses, from which it appeared that Howerton was a member of the Five Civilized Tribes and enrolled as a citizen in the Cherokee Nation. At the time of his death he owned real and personal property in Oklahoma and in Benton County, Arkansas. Testimony was also introduced, to which objection was made because of incompetency, tending to show that after the application for, and the appointment of, the administrator in Arkansas, letters of administration had been issued by the proper court in Delaware County, Oklahoma, and that the estate of the deceased was then in the process of administration in said State. The judgment of the court, after reciting the filing of the motion of Irene Howerton to dismiss for want of jurisdiction and the response thereto by the administrator, found that, “since there is now an administration of the estate of E. 0. Howerton duly established in Delaware County, Oklahoma, not a great distance from Siloam Springs where the plaintiff resides, and that due notice to creditors to present such claims as creditor's may have against said estate has been given, and that plaintiff yet has ample time to present its claim to the administratrix, and if disallowed may try the issue before the probate court of Delaware County, Oklahoma, and the court, being advised, doth dismiss said cause of action at the cost of plaintiffs.” From this judgment the administrator has duly prosecuted this appeal.

After the judgment and while the appeal therefrom was pending in this court, the Producers’ State Bank on the 23rd day of December, 1929, filed its claim for the balance 'due on the notes aforesaid amounting to the sum of $1,478.97, inclusive of interest to October 10, 1929, in the district court in Delaware County, Oklahoma, and the appellee filed in this court her motion to dismiss the appeal herein because by the filing of the claim, in the Oklahoma court the jurisdiction of that court was recognized, and therefore the appellant was barred from further litigation of the claim in the courts of this State.

We find no merit in the motion to dismiss the appeal, as it is well settled that an action pending in a foreign court cannot be pleaded in bar or abatement of a proceeding upon the same cause of action in the courts of this State (Grider v. Apperson & Co., 32 Ark. 332; Moore & Co. v. Emerick, 38 Ark. 203) and a resident of this State, it has been held, will not be enjoined from prosecuting an action in another State because a suit by him upon the same claim is already pending in this State. Green v. Cook, 88 Ark. 93, 113 S. W. 1009, 16 Ann. Cas. 671. See also Williams v. Ayrault, 31 Barb. 364; 1 C. J., 1165, § 426.

We are unable to discover anything in the acts of Congress referred to and quoted by the appellee regarding the jurisdiction of Indians and their property that would preclude the courts of this State from dealing with property of an Indian, whether alive or dead, which is situated within the borders of this State. At most, these statutes were intended to apply to the personal and property rights of Indians in the Indian Territory, now a part of the State of Oklahoma, reserving to the government of the United States the right to preserve by law the property and other rights of the Indians acquired by treaty or otherwise and could not have, and were not intended to have, any extra-territorial effect.

The judgment of the court appears to have been bottomed on the fact that at the time of its rendition there was an administration pending in the courts of Oklahoma where the appellant’s rig'hts mig’ht be enforced, and on this ground administration in this State was denied. In this holding the trial court erred. Without passing on the question of the competency of the testimony .presented to establish the existence of the administration in Oklahoma, as the determination of that question is not necessary, we are of the opinion that the probate court of Benton County, Arkansas, had jurisdiction, and it was its duty, on petition, regardless of the administration pending in a foreign State, to appoint an administrator to protect the rights of the domestic creditors, thus relieving them from the necessity of having to invoke the aid of foreign .jurisdiction to establish and enforce the claims against a decedent estate to residents of Benton County, and having property therein. It was the duty of the administrator, thus appointed, after the claims had been allowed by the court, to proceed to collect out of the assets in this State the amount of the claims, to report his action to the court and pay whatever surplus, if any, to the administrator of decedent’s domicile. As the appellee had failed and refused to administer upon the estate of the decedent, the appellant, Producers’ State Bank, as a creditor, had the preferential right next to the widow and heirs to move for the appointment of an administrator. We think there is no doubt as to the correctness of the position taken, and it is in accord with our decisions. Clark v. Holt, 16 Ark. 257; DuVal v. Marshall, 30 Ark. 231; Williamson v. Furbush, 31 Ark. 539; Shegogg v. Perkins, 34 Ark. 117.

In the case of Clark v. Holt, 16 Ark. 257-268, where-an administration was granted in the State of Tennessee on the application of local creditors, and afterward letters testamentary were issued by the probate court of Allen County, in the State of Kentucky, this court said: “We are not to suppose that the county court of Davidson County, Tennessee, granted letters to the appellant for the purpose of authorizing him to administer such of John Clark’s estate as was in Kentucky, where he was domiciled, or in any other State, but for the purpose of talcing charge of and administering such of his assets * * * as were found within the jurisdiction of that court; and this, we have seen from the general principles of law above quoted, that court had the right to do, and no local law of Tennessee to the contrary is averred. On this hypothesis, there would be no necessary conflict between the administration in Kentucky and that granted to the appellant in Tennessee, though the latter would be ancillary to the former, and the appellant would have finally to account to the executor or administrator, with the will annexed, appointed in Kentucky, that being the domicile of John Clarlq and the laws of the domicile controlling the disposition of his estate, subject to the provisions of his will.”

This decision has been followed and approved in the cases cited supra, and is a sufficient answer to the contention of the appellee, and necessitates a reversal of this case. The cause is therefore reversed and remanded to the circuit court of Benton County with directions to enter judgment in accord with the findings and judgment of the probate court.


author: Hart, C. J.,

text:
    National Bank of Commerce v. Ritter.
    Opinion delivered March 31, 1930.

      G. B. Begraves, for appellant.

      J. G. Washom and N. F. Lamb, for appellees.
   Hart, C. J.,

(aifter stating the facts). It is conceded that the only question presented by the appeal is whether L. V. Ritter has a vested interest under the terms of his father’s will which may in equity be subjected to the payment of appellant’s judgment ag’ainst him. Counsel for appellant insist that the proper interpretation of the will is that L. Y. Ritter took under the will a vested remainder upon the death of the testator, and that his interest could be sold under execution issued in favor of appellant under its judgment against him during the life estate of the widow. On the other hand, counsel for appellee insist that L. Y. Ritter took only a contingent interest under the will in his father’s estate depending upon his outliving the life tenant.

The correctness of the decree of the chancery court, therefore, depends entirely upon what estate the re-maindermen took under the mil. It is a cardinal rule in the construction of wills that the intention of the testator should be carried out, and that the intention must be gathered from the will itself whenever it is possible to do so. The general plan of the mil is to be considered by reading all of its provisions together, so that the intention of the testator may be gathered from the language he used, and the court may not substitute a new will for the one so made. It has been frequently said that it is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent.

It is clear from the provisions of paragraph 10 of the will that the testator did not intend that his sons or daughter, living when he made his will but not living when his widow died, should take any interest in his estate, that he or she should dispose of in the meantime, cutting off the other children. The will expressly provides that the children of the dead sons or daughter shall take and be substituted per stirpes, and not per capita for their parents. This would be impossible if the parents of such children could convey away their contingent share in the estate or ¡if the same could be sold under execution against such parent duiing the period of the life estate. By the express language of paragraph 10 of the will, unless L. V. Ritter survived his mother, whatever interest he would have taken in that event went to his issue who were substituted in his place under the will. Harry Ritter is unmarried, and has no issue. If he should die without issue before the widow, his interest would revert to the estate. Under the terms of the will, there can be no termination of the trust until the death of the widow, and the settlement or distribution of the estate cannot take place until that time. Hence, it is a case where the persons who may take under the will are uncertain and cannot be known until the death of the widow occurs. The children do not take a vested remainder, but a contingent one. The objects of the trust, as created by the testator, have not been accomplished and will not be accomplished until the death of the widow.

Until that event occurs, it cannot be known who will be the beneficiaries under the will. L.. V. Ritter has no interest which he could convey, because it is not certain what his interest will be, if any, until the death of his mother, and it is clear that no sale could be made under execution against him of any greater interest than he could convey by-deed or will. Page on Wills, (2d Ed.) vol. 2, § 1119; Liberty Central Trust Co. v. Vaughan, 167 Ark. 219, 267 S. W. 361; Eversmeyer v. McCollum, 171 Ark. 117, 283 S. W. 379; Hurst v. Hildebramlt, 178 Ark. 337, 10 S. W. (2d) 491.

Counsel for appellant rely upon the case of Jenkins v. Packingtown Realty Co., 167 Ark. 602, 268 S. W. 620. In that case there was a devise to a son and wife for their lives with remainder to their children. There was a contingent remainder in the afterborn children of the devisees, which became vested upon the coming into being of a child of such union.

In the present case the estate in remainder is limited to take effect upon the death of the widow, and it is limited to such of the children designated in the will as shall be living at her death. Whether any off such claims will vest, or, if so, how many, is uncertain and cannot be known until the event occurs. Augustus v. Sebolt, 3 Met. (Ky.) 155; and Brandenburg v. Thorndike, 139 Mass. 102, 28 N. E. 575.

Therefore, the decree will be affirmed.


text:
    American Company of Arkansas v. Wheeler.
    Opinion delivered March 31, 1930.

      Saxon 3 Warren and TI. G. Wade, for appellant.

      McMillen 3 Scot-t and Carmichael 3 Hendricks, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for the insurance companies claim that they were entitled to file a suit in the nature of a bill of interpleader in order to avoid a multiplicity of suits between the conflicting claimants to the fund 'agreed to be paid by the insurance companies on the fire insurance policies in question. They rely on the case of Chicago, Rock Island & Pacific Railway Company v. Moore, 92 Ark. 446, 123 S. W. 233, where it was held that a bill in the nature of interpleader is one in which the complainant seeks certain relief of an equitable nature concerning the fund in dispute in addition to the interpleader of conflicting- claimants. In that case it was also held that where a creditor sued in a court of one county, and subsequently was made a party to a bill of interpleader in the court of another county, and restrained from proceeding further in the former suit, he should have appealed in the latter court and set up all his rights there, and cannot litigate his claim in the former court. That case is. determinative of the right of the insurance companies to file a suit in the nature of a bill of interpleader, but it is not conclusive of the rights of the parties under such a suit.

The chancery court having jurisdiction in the suit in the nature of a bill of interpleader, according to the usual practice, could restrain the several parties to the suit from proceeding in other courts to have the same matters adjudicated; but it by no means follows that one of the defendants could be divested of rights which he had already acquired by judgment in another court of competent jurisdiction. Such a doctrine would entirely destroy the conclusive character of judgments between parties and privies as to the matters which were the subject of litigation. It is a rule of universal application that a question of law in issue in a former suit, and which was there judicially determined, is conclusively settled by the judgment thereon in so far as the parties to that action and persons in privity with them are concerned. The matter concluded by the judgment could not be again litigated in any future action between such parties or privies in the same court or in any other court of concurrent .jurisdiction upon the same cause of action. The priority of the judgment upon the same cause of action in the determining test. Sallee v. Bank of Corning, 134 Ark. 109, 203 S. W. 276.

On the 7th day of May, 192>9, the .American Company of Arkansas secured a judgment against W. F. Conine in the garnishment proceedings to which the insurance companies had been made parties. This was before the insurance companies filed their interpleader in the chancery court. The judgment in the garnishment proceedings shows that the American Company of Arkansas had already secured a judgment against W. F. Conine, and that the garnishment proceedings were based on that judgment. Service of process was duly had upon the insurance companies, and this fact was recited in the judgment. The record shows that the case was heard upon the writs of garnishment, the interrogatories filed, the answer of the garnishees, and the evidence introduced at the trial. The judgment in the garnishment proceedings was final and appealable. Wilson v. Overturf, 157 Ark. 385, 248 S. W. 898; First National Bank v. Farmers’ & Merchants’ Bank, 159 Ark. 384, 252 S. W. 34; Bank of Eudora v. Ross, 168 Ark. 754, 271 S. W. 703; and Woods v. Quarles, 178 Ark. 1158, 13 S. W. (2d) 617.

It is claimed by counsel for the insurance companies that they did not know that this judgment was rendered. This is no excuse. The judgment shows that service of process was duly had upon the insurance companies, and that they filed an answer. Thus, their appearance to the action was secured, not only by service of process, but also by their voluntary appearance in filing their answer. It then became their duty to follow the suit to the end, and they must take notice of all subsequent proceedings to the end of the action. Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222; and Farmers’ Mutual Fire Ins. Co. v. Defries, 175 Ark. 548, 1 S. W. (2d) 19.

No excuse whatever is offered on their part for allowing the judgment against them in the garnishment proceedings if they had any valid defense thereto. That judgment was final and appealable; and, not having appealed from it, the insurance companies are concluded now by it in so far as the rights of the American Company of Arkansas are concerned. It would be no answer whatever to say that Wheeler was not a party to that suit, and that they might have to pay the same claim twice on that account. It was their duty to have asked that he be made a party to that suit to the end that the rights of all interested parties and the conflicting claims might be litigated in the same suit.

C. B. Wheeler has been allowed to file an answer in the present suit in which he claims the insured property, and the American Company of Arkansas has contested hiis right to the proceeds of the insurance policies, so far as it is concerned, by alleging that the conveyance to him by Conine of the furniture and fixtures was in fraud of their rights as a creditor of Oonine. We agree with the American Company of Arkansas in its contention in this respect. The record shows that W. F. Conine and C. B. Wheeler were brothers-in-law. The furniture and fixtures insured formerly belonged to a partnership of which W. F. Conine was a member. The firm became financially embarrassed, and owed appellant in this action. About two years before the insurance policies were issued, it is claimed by Conine that he transferred the furniture and fixtures to C. B. Wheeler .in payment of an indebtedness he owed Wheeler. Conine was permitted to remain in possession of the furniture and fixtures for the most of the time after the sale. This, in itself, was a circumstance indicating fraud. Valley Distilling Co. v. Atkinson, 50 Ark. 289, 7 S. W. 137; Shaul v. Harrington, 54 Ark. 305, 15 S. W. 835; and Burke v. Sharpe, 88 Ark. 433, 115 S. W. 145.

Wheeler was an unmarried man and lived with Con-ine most of the time after the sale. He worked for him for a part of the time. Both Conine and Wheeler were witnesses in the case; and, while they both testified that the sale was made, they did not give any satisfactory account of any indebtedness due Wheeler. They only stated that there was an existing indebtedness evidenced by a note. The note was not introduced in evidence, and the nature of the indebtedness was not explained. The property was not insured until nearly two years after they claim that the sale was made, and it was- insured in the joint names of Conine and Wheeler. They also claim that the ¡building belonged to Conine, and that the fixtures belonged to Wheeler, and that the policies were made in their joint names for their convenience. The property was destroyed by fire a short time after the insurance policies were issued. Wheeler lived with Oonine, and was bound to know of the financial embarrassment of the firm of which Conine was a member. When all the attendant circumstances are considered, we are led to the conclusion that the transfer was made by Conine to Wheeler to defraud the creditors of Conine, and that Wheeler had actual knowledge of the fact or was in possession of such facts as would constitute knowledge. Harris v. Smith, 133 Ark. 250, 202 S. W. 244.

The result of our views is, in so far as appellant is concerned, that the decree must be reversed and the cause remanded with directions to the chancery court to order the amount of its judgment and interest paid out of the funds deposited in the registry of the court by the insurance companies. Inasmuch as no appeal has been prosecuted by any of the defendants except appellant, the decree in other respects will be affirmed; that is to say, the remainder of the fund after satisfying the claim of appellant will foe distributed by the chancery court in accordance with its former decree. It is so ordered.


author: Smith, J.

text:
    Fisher v. Texarkana Forest Park Paving District No. 3.
    Opinion delivered March 31, 1930.

      James D. Shaver and James D. Head, for appellant.

      Gustavus G. Pope, for appellee.
   Smith, J.

This appeal is from an order and judgment of the Miller Circuit Court establishing a rural paving improvement district adjacent to the city of Texark-ana under the provisions of Act 126 of the Acts of 1923 (Acts 1923, page 84), and the amendments thereto.

The following findings of fact were made by the circuit court:

(1) That the last county assessment, by which the question of a majority in value of the property owners -should be determined, is the assessment made by the county assessor of Miller 'County in 1927, as amended by the additional assessment made of Forest Park Addition by said assessor in September, 1928.

(2) “That in September, 1928, Joseph Eldridge, then the owner thereof, voluntarily went to the county assessor of Miller County, and assessed the lands forming what is known as Forest Park Addition, which said addition was platted in June, 1928, and filed with the circuit clerk, and which addition lies within said district, at the sum of twenty-five thousand ($25,000) dollars, which sum was in excess of the then market value of said lands, but that said assessment, having been made by the assessor, is binding on the court, and that the court cannot look to anything except to the assessment made by the county assessor.”

(6) “The court finds that it is conceded by counsel for both sides that, without the additional assessment made by Joseph Eldridge of Forest Park Addition in September, 1928, a majority in value is with the remonstrants; and that including in the 1927 assessment the Forest Park Addition as made in September, 1928, by Joseph Eldridge, it is conceded that the petitioners have a majority in value in the district as petitioned for.”

The finding* of the court in regard to values is not questioned, and it is also conceded that, inasmuch as Forest Park Addition was platted into lots after the regular assessment had been made in 1927, §§ 7482 and 9918, C. & M. Digest, conferred authority to assess this property as lots in 1928, instead of as acreage property as had been done on the original assessment.

The section of the Digest first referred to provides that the circuit clerk shall certify to the county clerk, when any map or plat of any addition to any city or town has been filed in his office, the name of said addition and the date of the filing of the plat.

Section 9918, C. & M. Digest, provides that each assessor shall, at the time of taking the list of personal property, also take a list of all real property situated in his county that shall have become subject to taxation since the last previous listing of property therein.

It is also conceded that, had this supplemental assessment been made as the law contemplated it should have been made, it was the assessment of values which would have been used in determining whether or not a majority in value of the property owners had petitioned for the formation of the district.

It was held in the case of Stevens v. Shull, 178 Ark. 269, 10 S. W. (2d) 511, (to quote the syllabus): “Acts 1921, No. 395, p. 416, as amended by Acts 1925, No. 184, p. 548, providing that no single improvement shall be undertaken within paving improvement districts which shall exceed in cost 50 per cent, of the value of the real property therein as shown by the last county assessment, held to mean the assessment in force at the time the acts required to be done are performed, and not the assessment in force at the time the petition for such improvement was presented. ’ ’

We think, however, that the supplemental assessment of the lots in the Forest Park Addition has been so far impeached that it cannot be used as the basis for determining whether a majority in value of the property owners petitioned for the creation of the district. The testimony clearly establishes the following facts. Eldridge, the promoter of the district, purchased in the early part of 1928 a forty-acre tract of land, which was then assessed at $1,300, and it was a portion of this land which was platted as the Forest Park Addition. The owner conceived the idea that the salability of these lots would be increased if a paved road were constructed connecting the lots with the pavement in the city of Texark-ana, and to that end the paving district here in question was petitioned for-. The petition, as filed with the county clerk, did not contain the signatures of a majority in value of the owners of property in the district under the 1927 assessment, and the 1928 assessment was then made. The county assessor testified that he did not assess the value of the lots in the Forest Park Addition, but that he allowed Eldridge to fix the values, as he placed them far in'excess of their actual market value. The result of this assessment was to increase the assessed value of Eldridge’s property in the district to $25,000, and to give the petitioners for the improvement a majority in,value according to that assessment. Eldridge frankly admitted that he had the lots adjacent to the road assessed at $800', and that their actual market value could not have exceeded $150 to $250 per lot. It was further shown that in 1929 Eldridge sought to assess these $800 lots at $10 each, saying that at the time he made the 1928 assessment he had a project to put over, which had been accomplished, and that he then desired to assess the lots at their true value of $10 per lot.

The circuit judge was of the opinion that, as- the 1928 assessment referred to was the then outstanding assessment against the property in the district, it was the basis under the statute for the determination of the question of value, and that as a majority in value according to this assessment had petitioned for the district, he was required under the law to make an order establishing the district, thereby reversing the order of the county judge, who had denied the prayer of the petition.

We do not concur in the view of the learned circuit judge, for the reason that the 1928 assessment of the lots was fraudulent, and did not represent that fair assessment of values which the -statute contemplated would be made by the county assessor for the usual taxation purposes which the improvement district statute provides shall be the basis for determining values. On the contrary, the undisputed testimony is that in making this assessment the county assessor had abdicated the function of his office and permitted Eldridge, for his own purposes, to place against the lots assessed a valuation far in excess of their market value, whereas it is a matter of common knowledge that the usual basis of assessment is 50 per cent, of the market value, and that in many cases even this value is not assessed.

The last preceding valid assessment was therefore that of 1927, in so far as this proceeding is concerned, and as it is conceded that the petition for the improvement does not contain a majority in value of the property owners according to the 1927 assessment, the judgment of the circuit court establishing the district must be reversed, and the petition will be dismissed. It is so ordered.


text:
    Baker v. Applen.
    Opinion delivered March 31, 1930.

      Northoutt <& Northcutt, for appellant.

      L. B. Poindexter, for appellees.
   Humphreys, J.

Appellees instituted this suit against appellant in the chancery court of Sharp County, Southern District, to cancel a deed executed by Joe Baker to said appellant on the 15th day of August, 1928, conveying the northwest quarter of the southwest quarter, section 1-0, township 15, north, range 4 west, in said county, and to have a resulting trust declared in said land in their favor. It was alleged, in substance, that the land in question was purchased by Joe Baker, appellees’ and said appellant’s father, in the year 1909 from a Mr. Gist with property of appellees, taking title in his own name, whereupon a resulting trust arose at once in favor of appellees to said land, and that on the 28th day of October, 1928, Joe Baker died intestate without having conveyed said land to them.

Appellant filed an answer denying each and every material allegation in the complaint, and specifically pleading laches on the part of appellees.

The cause was submitted to the court upon the pleadings and testimony adduced by the parties, which resulted in a finding that Joe Baker purchased said land with the property of appellees, and that a resulting trust therein arose in their favor, and a consequent decree cancelling the deed made by Joe Baker to said appellant for said land on the 15th day of August, 1928, and vesting title thereto in appellees, from which findings and decree is this appeal.

According to the preponderance of the evidence, reflected by the record, Leo Baker attained his majority in the year 1904, at which time his father, Joe Baker, gave . him a horse, bridle and saddle which he took with him when he left home to make his own way in the world; that he did not return to reside again in the neighborhood until about six years; that during his absence each of his sisters, appellees herein, attained their respective majorities,. whereupon, in order to equalize them with Leo and each other, Joe Baker g’ave each a mule; that in the year 1909, by and with the consent of appellees and in their presence, Joe Baker traded the two mules, of the value of $300, for the land in question, with the avowed purpose and understanding that the land should become and be the property of appellees; that when Leo Baker returned to the neighborhood with his family he was in debt, and that, through the assistance of his father and sisters, he was enabled to make enough to pay his indebtedness and purchase a small home; that after the mules were traded for the land appellees with the assistance of their father, who was old, cleared up the land in question and built a home thereon; that the father, mother and two daughters continued to live in the home together as one family until each of the appellees married; that Malinda married Applen when she was thirty-one years of age, and Elneda married Britt when she was forty-one years of age; that after the mother died Joe Baker resided part of the time with each of his children in their respective homes; that in August, 1928, he left the home of Mr. and Mrs. Applen to live with his son, Leo, and on the following day after his arrival in Leo’s home he conveyed the land to him because he conceived the idea that he was no longer welcome in his daughter’s home; that at the time he was in a helpless condition physically, and died on the 28th day of October following; that the deed was placed upon record soon after its execution, and immediately after being recorded and before the death of Joe Baker this suit was commenced.

Appellant makes two contentions for a reversal of the judgment. The first being that there was no manual delivery of the mules by Joe Baker to appellees, and because of such failure the title to the mules never passed to them; and, second, that appellees are barred on account of laches.

(1). Although there was a slight conflict in the evidence, the overwhelming weight thereof is to the effect that Joe Baker gave each of appellees when they attained their respective majorities a mule to equalize them with their brother, appellant herein; that appellees accepted the gift and thereafter used and exercised ownership over the mules; that Joe Baker recognized their ownership of the mules, and when he exchanged them for the land did so with their consent and in their presence. Both appellees testified that, in the event they had married before the mules were traded for the land, they would have taken the mules with them as their father had other mules for use on the place. Joe Baker told his neighbors that he had given the mules to the girls to equalize them with the brother on account of the horse, saddle and bridle he had given him. We think, as all parties lived in the same home, the gift was completed when appellees accepted and used the mules as their own. The rule laid down in 28 C. J., § 27, governs in the instant case. It is as follows: “The rule as to delivery is not so strictly applied to transactions between members of a family living in the same house, the law in such cases accepting as delivery acts which would not be ■ so regarded if the transactions were between strangers living in different places. It is not required that the thing given should be removed from one common residence.”

In the case of Moore v. Cline, 115 Ga. 405, 41 S. E. 614, a gift of a horse by a son to his mother was upheld, where they resided in the same house, and no actual delivery was made, but where the moiher accepted the gift and exercised the rights of ownership and control over the horse thereafter.

A gift of horses by a father to his son was upheld in the case of Horn v. Horn, 152 Wis. 482, 140 N. W. 58, upon the declaration of the father that he had given the horses to his son, and the fathei’s conduct thereafter in recognizing the son’s ownership of them. There is no dispute that the mules which Joe Baker had given to his daughters were traded even, by their consent and in their presence, for the land in question. Their property was invested for them in the land, although the conveyance was taken in the name of tkeir father, so the law raised a resulting trust in the land in their favor. 26 R. C. L., p. 1214, paragraph 57.

(2). There is no merit in appellant’s contention that appellees are 'barred by laches. Appellees resided upon this land with their father until their respective marriages. Elneda did not marry until she was forty-one years of age, so she resided thereon until a short time before the deed to the land was made to her brother, the appellant. It is only delay which works a disadvantage to another that operates as an estoppel against the assertion of a right. Norfleet v. Hampton, 137 Ark. 600, 209 S. W. 651. Filial respect and consideration prompted appellees not to insist upon their father executing a deed to them for the land. Within thirty days, or thereabouts, after Joe 'Baker made the deed to said property to appellant, and just as soon as they acquired the knowledge that he had done so, they filed a lis pendens, and instituted this suit to cancel the deed, and to enforce a resulting trust in said land. The suit was brought promptly after the execution of the deed, and no disadvantage resulted to appellant between the date of the deed and the institution of the shit. Appellant paid nothing for the land, so he' acquired no equity under the conveyance superior to the equity of appellees therein. Under the facts in this case appellant’s grantor could not have successfully pleaded laches as against the right of appellees in the land, and neither can appellant himself.

No error appearing, the decree is affirmed.