text:
    Fenner v. Reeher.
    Opinion delivered May 16, 1921.
    1. Actions — consolidation.—Under Crawford & Moses’ Digest, § 1081, it was proper to. consolidate a suit by the owner of city property to foreclose a mortgage held by him on farm property with a suit by the owner of the farm property for specific performance of a contract to exchange the city property for the farm property.
    2. Vendor and purchaser — marketable title. — A purchaser should have a title which will enable him not only to hold the land, but to hold it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its. marketable value; hut the doubt must be reasonable, such as would induce a prudent man to hesitate, and not a captious or frivolous objection.
    3. Vendor and purchaser — marketable title. — A mortgage on land will not justify a purchaser in refusing to carry out a contract of sale where the vendor offered to pay off the mortgage and only refused to pay to the mortgagee’s attorney (the mortgagee being the purchaser) because the mortgagee was not there to satisfy the record.
    Appeal from Izard Chancery Court; L. F. Reeder, Chancellor;
    affirmed.

      STATEMENT OF PACTS.
    The principal issue raised by the appeal is the right of F. F. Reeher to the specific performance of an agreement between himself and Gorge F. Fenner for the exchange of a farm in Izard County, Arkansas, owned by the former, for a house and lot in the town of Coffey-ville, Kansas, owned by the latter. On the 18th day of October, 1919, F. F. Reeher entered into a written agreement with George F. Fenner for the exchange of a farm, owned by the former, in Izard County, Arkansas, for a house and lot, owned by the latter, in Coffeyville, Kansas. The farm comprised 180 acres, and the contract covenanted that the land was free from all incumbrances. Reeher agreed to take, or cause to be taken, a mortgage for $677, secured by the land. $325 of this amount was a balance due on the purchase price of the land, and $352 was a balance due on the personal property embraced in the exchange of the land between the parties. The contract provided that Reeher should clear the title to the 180 acres of land and give Fenner an abstract showing a good, merchantable title. On his part, Fenner covenanted that his house and lot in Coffeyville, Kansas, was free from incumbrances, except a mortgage of $250. Fenner agreed to increase the mortgage on this property up to $500 and to pay Reeher $250 in cash at the completion of the contract. The contract further provided that, if Reeher failed to clear the title to his land, the rent collected from the Coffeyville property should be applied toward the payment of the personal property sold by Reeher to Fenner, which amounts to $325. Each party covenanted to give the other possession of the property after October 18, 1919, and the latter has been in possesion of it ever since. Its rental value is $100 per annum. Reeher has never been in possession of the Cof-feyville property; Fenner has collected the rents on it, and the rental value is $15 per month.
    On the 4th day of February, 1919, F. F. Reeher gave to John Michael a mortgage on the 180 acres of land in question to secure an indebtedness of $625. On tbe 28th day of June, 1919, Beeher made a payment of $50 on this indebtedness, which was duly credited on the note. On the 6th day of December, 1919, Michael assigned the note and mortgage on the land in question to G-eorge F. Fenner and Lillie Fenner, his wife. On the 13th day of December, 1919, they brought suit in equity against F. F. Beeher to foreclose this mortgage. Beeher filed an answer in which he admitted the execution of the mortgage, but stated that he was entitled to a credit of $75 on the note which the mortgage was given to secure. On May 5, 1920, F. F. Beeher brought suit in equity against George F. Fenner to obtain specific performance of the contract described above. On motion of Beeher the two causes, which were pending in the same chancery court, were consolidated. The facts stated above were proved at the trial of the consolidated cases.
    Beeher was a witness for himself. According to his testimony, he had tried to make Fenner a deed to the 180 acres of land in Izard County, Arkansas, and had an abstract prepared showing a good and merchantable title to said land. He admitted that the abstract did not show the payment of the Michael debt and the satisfaction of the mortgage, but he stated that he was willing to payoff that indebtedness and offered to do so. He stated that he had never offered the cash to Michael because he failed to meet him at the time they had set for settlement of the matter. Beeher told Fenner that the abstract to the 180 acres of land had been prepared and was in his attorney’s office ready for him. He admits that he refused to pay the mortgage indebtedness to Michael’s attorney, but says that he told the latter that he was ready and prepared to pay Michael whenever the latter would come and satisfy the record. Beeher denied that he was to take the $400 which Fenner paid him at the time of the execution of the contract and apply it on what he owed Michael.
    According to the testimony of George F. Fenner, he never saw the abstract of title to the 180 acres of land in Izard County. He admits that Reeher told bim that the abstract was ready and in the office of John C. Ashley. Fenner went to Ashley’s office, and the latter informed him that there were missing links in the title, and that it would have to go through court. Fenner bought the Michael indebtedness to protect himself.
    According to the testimony of J. C. Ashley, Fenner-called at his office and asked him if the abstract would show a perfect title. Ashley told him that it would be impossible, as there were some imperfections in it, and that the only way to cure them would be to have the title confirmed. Ashley told Fenner that, while the title was not perfect, it was safe; that a title to part of it was' perfect, and the title to the balance extended back from twenty to thirty-five years. Fenner replied that he did not want the land if the title was not perfect.
    On cross-examination Ashley stated that the abstract shows a merchantable title subject to two liens, one for $400 and the other for $675. He stated it was his understanding and information that the $400 lien had been satisfied, and the other was the one given to Michael and referred to above.
    The court found that Reeher was indebted to G-eorge F. Fenner and Lillie Fenner in the sum of $681.83 on the note executed by them to John Michael, and indorsed by ■the latter to George F. Fenner and Lillie Fenner, and it was secured by a mortgage on the 180 acres in question.
    The court found in favor of Reeher on the suit for specific performance and found that George F. Fenner was indebted to F. F. Reeher in the sum of $677, the balance due on the personal property and real estate according to the terms of the written contract sued on, and also in the sum of $178.50 rents on the Coffeyville property, making in the aggregate a total indebtedness of $855.50. A decree for the specific performance of the contract was accordingly entered of record, and it was further ordered that the judgment of George F. Fenner and Lillie Fenner against Reeher in the sum of $681.83 be set off against tbe judgment of Beeher against Fenner in tbe sum of $855.50 and that Beeber have judgment against Fenner for tbe balance due in tbe sum of $172.67.
    George F. Fenner alone bas prosecuted an appeal to tbis court.

      Elbert Godwin, for appellants.
    1. Tbe chancellor erred in consolidating tbe two causes of action, as tbe plaintiffs are not tbe same, and tbe issues are not tbe same. 80 Ark. 167; 83 Id. 288; 8 Cyc. 594 and 31 Id. 45.
    2. Tbe court erred in decreeing specific performance against appellant on the contract made October 18, 1919. Tbe land was not free of all incumbrances as warranted. Tbe term “incumbrance” in a contract to convey land “free from all incumbrances ’’ includes a paramount right to tbe land which may defeat the grantee’s title. Words and Phrases, vol. 4 (1 series), p. 3524; 4 Comstock (N. Y.) 396-400; 4 Mass. (9 Mete.) 462-7.
    Incumbrances are of two kind, viz.: (1) Such as affect title, and (2) those which affect only tbe physical conditions of tbe property. A mortgage or lien is a fair illustration of tbe former; a public road or right-of-way, of tbe latter. Where incumbrances of tbe title exist, tbe covenant of warranty is broken the instant it is made, and it is of no importance that tbe grantee bad notice when he took title. Words and Phrases, vol. 2 (2 series), p. 1023; 53 So. 381-3; 60 Fla. 284; 30 L. B. A. (N. S.) 833; Ann. Cases 1912 C 647 ; 4 Atl. 542; 112 Pa. 315.
    Tbe undisputed testimony is that appellee never at any time rendered appellant any abstract showing a good, merchantable title. One who seeks specific performance is bound to show a substantial performance or readiness and offer to perform on bis part all that is required' by the contract. Failure in any material respect offers a full defense to tbe suit. 118 Ark. 283.
    A purchaser suing for specific performance of a contract has tbe burden of showing that he bas complied, or offered to comply, with tbe terms of tbe contract, and that lie was ready and willing to do so, and that any failure on his part was caused by some neglect or default of the vendor. 219 S. W. 28. A plaintiff seeking to enforce a contract dependnig on a condition precedent must show that the condition has been fully performed. 36 Cyc. 697. The burden of proof is on the vendor to show .a good title. 36 Cyc. 694-5. Specific performance of a private contract to purchase land will not be enforced unless the title is marketable. 158 N. Y. 522; 39 Cyc. 1406-7. If the title to any part of the land is defective, appellant may rescind the whole contract. 66 Ark. 433; 39 Cyc. 1407-8 and notes.
    This case should be tried de novo on appeal, and the case should be decided on its merits, irrespective of the decision of the chancellor. 93 Ark. 394.

      John G. Ashley1, for appellee.
    1. There is no error in consolidating the two causes of action. If Lillie Fenner was a proper party, she did not appeal from the final decree and is not now in court and can not be heard for the first time to object. 26 Ark. 414; 27 Id. 156; 100 Id. 148.
    2. As to Geo. Fenner, he made no objections and saved no exceptions to the consolidation and can not be heard to complain. The causes were properly consolidated. C. & M. Digest, § 1081; 84 Ark. 555; 88 Id. 424. But, if error, it was harmless.
    3. There was no error in decreeing specific performance, because (1) appellee has failed to clear the land in Izard County of all incumbrances, and (2) appellee has performed his part of the contract so far as possible and shown a readiness to perform his part of the contract. The incumbrance complained of has been paid. But if not paid it is not an incumbrance, as action was barred at the time the trade was made. C. & M. Digest, § 7382. Appellee had no opportunity to clear the title before appellant filed this suit, and this should be given him, and in giving appellee an opportunity to clear the incum-brance there was no error. 40' Ark. 382; 73 Id. 491a. Appellee did not fail to give appellant good, marketable title to the land sold. A marketable title is one that can be held without reasonable apprehension of its being assailed, and one that can readily be transferred in the market, if desired. 121 Ark. 482; 119 Id. 418; 66 Id. 433; 63 Id. 548.
    4. This court will not reverse the findings of the chancellor as to matters of fact unless they are clearly against the clear preponderance of the testimony. 73 Ark. 489; 77 Id. 305; 97 Id. 537.
   Hart, J.

(after stating the facts). It is first insisted that the court erred in consolidating the suit of George F. Fenner and Lillie Fenner, his wife, against F. F. Reeher, to foreclose the mortgage on the 180 acres of land in Izard County, Arkansas, with the suit of F. F. Reeher against George F. Fenner for the specific performance of the contract to exchange the 180 acres of land in question for the Coffeyville property.

The court did not err in consolidating the- suits. Section 1081 of Crawford & Moses ’ Digest provides that when causes of a like nature, relative to the same questions, are pending in the circuit court or chancery court, the court may consolidate said causes when it appears reasonable to do so. In Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, the court held that separate actions by the husband and wife to recover damages for injuries sustained by the wife on account of the alleged negligence of the gas company were properly consolidated. The object of the act in question is to save a repetition of evidence, and an unnecessary consumption of time and costs in actions depending upon substantially the same evidence or arising out of the same transaction.

Again it is urged that the court erred in setting off the judgment recovered by George F. Fenner and Lillie Fenner against F. F. Reeher. Lillie Fenner has not appealed and can not be prejudiced by the action of the court in this respect, however erroneous it might be. The decree of the court shows that Fenner is indebted to Reelier in a greater amount than Reelier was indebted to'bim. The court gave Fenner credit on the judgment of Reeher against him in the amount of his judgment against Reeher. This action of the court resulted in no prejudice to him, inasmuch as the decree must be affirmed for the reasons hereinafter given.

The principal issue raised by the appeal is whether or not Reeher was entitled to specific performance. The contract provided that Reeher should give Fenner a clear title to the 180 acres of land in question and should give him an abstract showing a good, merchantable title. It is a just principle in the law relating to the specific performance of contracts that Fenner should receive that for which he contracted before he can be compelled to part with the consideration he agreed to pay. The contract provided that he was to receive an abstract showing a good, merchantable title.

In the case of Dobbs v. Norcross, 24 N. J. Rep., p. 327, cited in Griffith v. Maxfield, 63 Ark. 548, to sustain the holding of the court, in discussing this question it was said:

“The court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings; or, as it is usually expressed, it will not compel him to buy a lawsuit. That may be a good title at law, which a court of equity,'in the exercise of its discretionary power, will not force on an unwilling purchaser. Every purchaser of land has a right to demand a title which shall put him in all reasonable security, and which shall protect him from anxiety, lest annoying, if not successful, suits be brought against him, and probably take from him or his representatives land upon which money was invested. He should have a title which shall enablé him, not only to hold his land, but to hold it in peace; and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. ’ ’

This court has adopted the rule there laid down. Griffith v. Maxfield, 63 Ark. 548; Leroy v. Harwood, 119 Ark. 418; Mays v. Blair, 120 Ark. 69, and Shelton v. Ratterree, 121 Ark. 482. The doubt, however, must be reasonable, or such as would induce a prudent man to hesitate. It does not mean a captious or frivolous objection.

We now come to consider the title in the present case tendered by Reeher to Fenner under the contract in question and must determine whether it is so far free from reasonable doubt as to justify the affirmance of the decree ordering the contract to be specifically performed. There was an incumbrance of $400 which John C. Ashley, who abstracted the title for Reeher, testified had been fully satisfied. His testimony was not disputed. Hence this alleged incumbrance passes out of the case.

This brings us to the mortgage made by Reeher to Michael. In the first place, Reeher all the way through claimed that he would pay off this mortgage and only declined to pay to Michael’s attorney because Michael was not there to satisfy the record. He again offered to pay off this indebtedness at the trial, and the court credited his judgment against Fenner with the amount of the indebtedness. Under these circumstances, it did not constitute an encumbrance which would warrant Fenner in refusing to carry out the contract on his part. It seems that there was some other objections to the title, but the evidence does not disclose what they were. Ashley testified that the title was a merchantable one, and that Fenner told him he would not take anything less thau a perfect title. This, as we have already seen, he was not entitled to under the terms of the contract. The contract gave him a merchantable title, and this Reeher offered to give him at all times. He could not refuse to accept the title thus offered on the ground that there was a possibility of there being a flaw in it. The record does uot show any reasonable ground which would warrant Fenner in turning down the title offered him by Reeher. The title which Reeher seeks to compel Fenner to accept is a merchantable one, within the meaning of onr decisions cited above, and the conrt properly entered a decree for the specific performance of the contract.

It follows that the decree must be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Sovereign Camp Woodmen of the World v. Key.
    Opinion delivered May 16, 1921.
    Insurance — fraternal society estopped by Knowledge of local agent. — The local agent of a fraternal society, through whom only a member may commuicate with the ruling officials of the society, and whose duty it is to report the standing of members, is the agent of the society, and a member’s duty under the rules of the society to give notice of engaging in a more hazardous employment was complied with by giving notice to such agent; and where notice was so given, and the member was not notified of any increase of assessment, the order was estopped to deny payment of the proper dues, though the laws of the society provided that no officer or agent could waive the provisions of the laws.
    Appeal from Clark Circuit Court; George R. Eay-nie, Judge;
    affirmed.

      T. E. Helm, for appellant.
    1. Under the constitution and by-laws of the order employment in an electric current generating plant is classed as hazardous, and appellee failed to give notice and pay the increased assessment rate and his certificate of benefit was null and void.
    2. Under the facts of the case plaintiff was not entitled to recover. He made no offer to pay the additional rate.
    3. There was no waiver; at least, the clerk of the local camp had no authority to waive the provision in the constitution and by-laws requiring the payment of the monthly installment rate. It was Key’s duty to acquaint himself with the provisions of his certificate and the constitution and by-laws of the order, and a failure to pay the additional rate avoided his benefit certificate. 104 Ark. 538; 129 Id. 159 ; 133 Id. 411. Act 462, Acts 1917, § 20, is applicable here, and it is not within the power of a clerk .of a local camp to waive the payment of the additional assessment for hazardous occupation. 142 Ark. 154.
    4. There was no estoppel, as that doctrine does not apply. There was no conduct of defendant or the clerk of the local camp such, as to induce action or inaction in reliance thereon, or which could have operated to mislead Horace Kjey to his injury. There was no fraud or advantage taken. There is nothing to show that any one at any time did anything to discourage, hinder or prevent him from paying the additional dues required. 142 Ark. 154. 188 S. W. 941 is a very similar case and is controlling here. See, also, 2 Bacon on Life & Acc. Ins., p. 1496.
    5. It was error to give instruction No. 1 for plaintiff. It does not declare the law properly, and in effect told the jury that the clerk of the local camp could waive the requirements of the constitution and laws of the order, which the clerk could not do. Act 462, Acts 1917, § 20. The peremptory instruction asked by defendant should have been given, as the evidence plainly showed that Horace Key was a member of the order and insured as a machinist, an ordinary or preferred occupation, and that he afterward changed to the hazardous one of an electric current generating plant, and that he never paid or offered to pay the increased rate.

      McMillan & McMillan, for appellee.
    It is not absolutely clear that defendant was entitled to win this case, even if there had been no estoppel shown. The policy was incontestable after five years except where the policy-holder dies while engag’ed in a hazardous occupation. The burden was upon the insurer to bring itself within the exception, and it has failed. 140 Ark. 612.
    Horace Key was an enlisted man and exempt from the additional premium required by § 43. 140 Ark. 313.

      Defendant is clearly estopped to claim a forfeiture. Horace Key was misled by tbe belief tbat bis policy was still in force. Tbe clerk of tbe local camp was tbe agent of tbe sovereign camp, and bis knowledge was tbat of tbe principal or sovereign camp. 127 Ark. 133. See, also, 140 Ark. 289. '
   Smith, J.

On tbe 15tb day of June, 1914, the appellant, Sovereign Camp of tbe Woodmen of tbe World, issued its beneficiary certificate for a thousand dollars to H. C. Key, of Arkadelphia, Clark County, Arkansas, naming as beneficiary in said certificate appellee, Mrs. Albey Key, tbe mother of tbe insured. In bis application Key stated tbat be was a machinist, which occupation was and is classed as an ordinary or preferred occupation, and required payment of tbe ordinary or preferred rate. Key paid this rate until tbe time of bis death.

About August 1, 1917, Key removed to Malvern, Arkansas, where be entered tbe employment of tbe Arkansas Light & Power Company at its electric current generating plant as engineer, in which capacity be worked about a year. He then entered tbe United States army, where be served until discharged in June or July, 1919, and on bis discharge be returned to tbe employment of tbe Arkansas Light & Power Company, where be again worked as engineer for two months and until the time of bis death.

On tbe night of September 16, 1919, Key was found dead at said electric current generating plant. No one saw him die, but tbe body was found lying in the water at tbe bottom of tbe condenser pit, and those who attempted to remove tbe body received electric shocks in coming in contact with tbe water. Tbe body was burned and blistered.

Tbe constitution and by-laws of tbe order in force during all tbe time Key was a member contained tbe following sections and parts of sections:

“Section 43. Persons engaged in the following occupations, towit:

“(a) Sailors on seas, electric linemen, employees in electric current generating plants and enlisted men in the army and navy during war, may be admitted to membership if accepted by the sovereign physician, but their certificates shall not execeed two thousand dollars each and their rates of assessment shall be 30 cents for each one thousand dollars of their beneficiary certificate in addition to the regular rate while so engaged in such hazardous occupation.

“(b) If a member engages in any of the occupations or business mentioned in this section, he shall within thirty days notify the clerk of his camp of such change of occupation, and while so engaged in such occupation shall pay on each assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make such payments as above provided shall stand suspended, and his beneficiary certificate be null and void. ’ ’

“Section 69 (a). No officer, employee or agent of the sovereign camp, or of any camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary or waive any of the provisions of this constitution or these laws, nor shall any custom on the part of any camp or any number of camps with or without the knowledge of any sovereign officer have the effect of so changing, modifying, waiving or foregoing such laws or requirements. Each and every beneficiary certificate is issued only upon the conditions stated in and subject to the constitution and laws then in force or thereafter enacted.

“(b) The constitution and laws of the sovereign camp of the Woodmen of the World now in force, or which may hereafter be enacted, by-laws of the camp now in force, or which may be hereafter enacted, the application and certificate shall constitute a part of the beneficiary contract between the order and the member.”

The testimony shows that one Waldrop was the local clerk of the appellant order, and that he served in that capacity for about ten years and during- all the time Key was a member. After Key changed bis occupation, Wal-drop was notified of that fact by Key’s father on an occasion when he' paid dues for his son. Later the same information was conveyed to Waldrop by the insured’s sister when she paid dues for her brother. It was shown to have been the custom of the local clerk, when notified that a member had changed his occupation, to communicate that information to the sovereign clerk of the head camp, so as to learn what amount to increase or decrease the rate' to be paid by the member, giving the notice, and, after receiving this direction from the clerk of the head camp, to notify the member of any change in assessment.

Section 112 of the by-laws provided the time and manner in which the local clerk should make remittances of dues collected by him, and that, accompanying such remittances, the clerk shall also forward such detailed statement, of the standing of the members in the camp as shall be required for the information of the sovereign clerk, upon blanks furnished for that purpose.”

No notice of change in assessment was given by the local clerk, and the insured continued to remit from Mal-vern,’where he was employed, to his sister in Arkadel-phia, where she and Waldrop both lived, and the sister paid the dues with the remittances thus received.

The cause was submitted under an instruction which told the jury to find against the company if the finding of fact was made that the sister of Key, when paying dues, had notified Waldrop that Key was engaged in an electrical current generating plant. There was a finding and judgment against the company, from which is this appeal.

It will be observed that the appellant here was the appellant in the case of Sovereign Camp of Woodmen of the World v. Newsom, 142 Ark. 132, and that certain excerpts from the constitution and by-laws of the order herein set out appeared also in the statement of facts in the Newsom case. !

Tlie principles announced in that case control here. The local clerk is the agent of the order. It is to him, and through him only, that the member may communicate with the ruling officials of the order. The member complied with his duty when he advised the local clerk of his change of occupation.

In the Newsom case the court said: ‘£ Since the clerk of the local camp must be regarded as the agent of the sovereign camp in the matter of collecting assessments and reporting the standing of the members to the sovereign clerk, the knowledge of the agent acquired in the discharge of his duties was the knowledge of appellant (the company).”

In the Newsom case the facts were that the insured had arranged with his bank to pay dues upon presentation of proper receipt, and, pursuant to this custom, the bank would have paid the particular dues in question, had receipt therefor been presented. This arrangement was made for the convenience of the local clerk. Presentation of the receipt to the bank was not made, and the dues were not paid, and the member became delinquent. The contention was made that the local clerk was acting as the agent of the insured in collecting the dues through the bank, and that, in so far as the clerk was acting f.or the order, or could act for it, he had no duty to perform except to receive the money and to receipt for it and forward it. The court, however, held against that contention, and in doing so said: “Having reached the conclusion that the clerk of the local camp’was the agent of appellant and acting within the scope of his authority in making collections, remittances and reports to the sovereign clerk, it is manifest that appellant is estopped by the conduct of the local clerk from claiming a forfeiture of Newsom’s policy or certificate under the undisputed facts above set forth.”

Upon the authority of that case, and of the cases therein cited, we hold that the appellant is estopped, in view of the jury’s finding, to assert that the insured did not pay proper amounts of dues. This is true because it was Waldrop’s duty to report tlie information be bad received to tbe bead camp and to revise bis collection of assessments to conform to any change made therein as tbe result of bis report, and bis knowledge is imputed to tbe bead camp.

As opposing this view, counsel call to our attention section 20 of act 462 of tbe Acts of 1917 ( C. & M. Digest, § 6095), which reads as follows: “Tbe constitution and laws of tbe society may provide that no subordinate body, nor any of its subordinate officers or members, shall have tbe power or authority to waive any of tbe provisions of tbe law and constitution of tbe society, and tbe same shall be binding .on tbe society and each and every member thereof and on all beneficiaries of members.” .

This question was also raised in tbe Newsom case, the statute being first called to tbe attention of tbe court on the petition for rehearing. We there said: “Therefore, what we said in tbe original opinion concerning tbe authority of a subordinate body and its subordinate officers to waive any of tbe provisions of tbe laws and constitution of tbe society is retracted, and we now bold, in view of this statute, that it was not within tbe -power of tbe local clerk of appellant to waive tbe payment of tbe March dues on or before tbe first day of April as required by tbe law and constitution of appellant.”

But tbe decision of the court was not changed. Tbe difference between waiver and estoppel was pointed out, ahd the court held that, while tbe subordinate officers would have no power or authority, in view of tbe statute, to waive any of tbe provisions of tbe law and constitution of tbe society, tbe insurer, notwithstanding tbe statute, stood charged with tbe knowledge of any of its officers acquired in tbe discharge of their duties. And what the court there said is equally applicable here.

Judgment affirmed.


text:
    Gibson v. Johnson.
    Opinion delivered May 16, 1921.
    REFORMATION OF INSTRUMENTS — NECESSARY PARTIES. — Where the owner of land before his death deeded a. 20-acre tract, described as the east half of a certain 40 acres, both to a son and a daughter, and the son sued the daughter to reform the deed, without making other children parties, alleging that the grantor intended to convey to the daughter the west half of the above 40 acres, a decree in such case canceling the daughter’s deed, without reforming it, was error; the court should have required the other children to be made parties, so that complete relief could be rendered.
    Appeal from Washington Chancery Court; B. F. Mc-Mahan, Chancellor;
    reversed.
    J. W. Grabiel and W. N. Ivie, for appellant.
    1. There is a complete failure of proof by any competent evidence that any mistake was made in the deed of February 23, 1895.
    2. If there were such competent proof, it fails to show clearly a mistake.
    3. Plaintiff failed to show any equity that entitled him to prosecute his action against his sister, Cynthia Gibson.
    4. The court was without jurisdiction to grant the relief prayed for or any other.
    5. The decree is not supported by-the allegations or the proof. 132 Ark. 227; 200 S. W. 139.
    There was no competent evidence to show a mistake was made in the deed to Cynthia Gibson. 132 Ark. 227.
    The deed of April 14, 1913, is wholly incompetent for any purpose, as the deed was never .delivered nor recorded. Both deeds were executed in the absence of appellant, and she knew nothing of either of them until after her father ’s death. 11 Ark. 249; 96 Id. 589 ; 133 S. W. 173.
    6. Possession of part of a tract of land conveyed by a deed constitutes possession of the entire tract within the calls of the deed, where the grantee’s possession is under the deed. 135 Ark. 321; 204 S. W. 755; 134 Ark. 548; 204 S. W. 424.
    T. J. Johnson, the grantor, was in possession of part of the twenty acres up to the time of his death for the purpose of receiving the rents, but there is no testimony that his possession was adverse or hostile to that of Cynthia Gribson. The grantor is presumed to hold possession in subordination to the title conveyed. Ib.; 96 Ark. 512; 132 S. W. 459; 69 Ark. 562; 85 Id. 520; 109 S. W. 541.
    The testimony shows that the possession by T. J. Johnson, the grantor, was strictly in harmony with and with full recognition of appellant’s legal title to the land and that it was not hostile or adverse to hers. 85 Ark. 520; 69 Id. 562.
    Courts of equity, in the exercise of their jurisdiction to reform written instruments, proceed with the utmost caution. 97 Ala. 476; 49 Conn. 167.
    7. The complaint should have been dismissed for want of equity. The evidence clearly shows that plaintiff claimed under a purely voluntary conveyance. No relief will be awarded to a grantee in an imperfect conveyance which is not supported by a valuable consideration. Plaintiff’s claim, in view of the facts, is without merit. 2 Pomeroy, Eq. Jur., §§ 588-590; Pomeroy’s Eq. Remedies (2 ed.), § 679.
    8. The decree below is not supported by any evidence or theory 'of the case whatever. Even if a mistake had been made, the title of Cynthia Gribson has matured by adverse possession and plaintiff is estopped by laches. Pom., Eq. Rem. (2 ed.), § 680; Fletcher v. Malone, 145 Ark. 211.
    9. The evidence shows that defendant is entitled to recover on her cross-bill.

      John Mayes and Walker & Walker, for appellee.
    Only a question of fact is involved in this case. The law is well settled. 132 Ark. 227; 79 Id. 592. The findings of the chancellor are sustained by the evidence.
   Smith, J.

In 1895, Thomas J. Johnson and his wife executed to their daughter, Mrs. Cynthia Gibson, a deed to one hundred acres of land. This deed described the east half southwest quarter northeast quarter, section 19, township 18 north, range 28 west. On March 12,1918, the same grantors executed to their son, W. W. Johnson, a deed to one hundred and ninety acres of land, and in this deed included the twenty acres above described. Notwithstanding the fact that the twenty acres was described in both deeds, the grantor did not deliver possession to either his son or his daughter, but retained possession and collected rents thereon. Shortly after executing this last deed T. J. Johnson died.

After the death of T. J. Johnson, W. W. Johnson brought this suit against his sister, and alleged the fact to be that their father had not intended to convey the east half southwest quarter northeast quarter to Mrs. Gibson, but had in fact intended to convey her the west half southwest-quarter northeast quarter. There was a prayer that the title to the east twenty acres be divested out of Mrs. Gibson and vested in the plaintiff, and that the title to the west twenty acres be vested in Mrs. Gibson. In other words, that the deeds be so reformed as to give W. W. Johnson the east twenty acres and Mrs. Gibson the west twenty acres.

T. J. Johnson owned other lands not conveyed to either his son, W. W., or his daughter, Cynthia, and was survived by other children, who were not made parties to this suit.

Mrs. Gibson answered and denied that any mistake had been made, and much testimony was heard on this issue, and she very earnestly insists that the testimony does not clearly and satisfactorily show that a mistake was made.

The court found, however, that a mistake had been made, and that the grantor intended to convey the east twenty to "W. W. Johnson and the west twenty to Mrs. Cynthia Gibson, and entered a decree cancelling the deed to Mrs. Gribson in so far as it purported to convey the east twenty acres, and this appeal is from that decree.

We have carefully considered the testimony m tne case, and, while we do not reverse the decree on the finding of the court below on the facts, we have concluded that the court should not have granted the relief on the case made. We think, however, that W. W. Johnson has the right to prosecute this suit when proper parties have been brought before the court. 20 R. C. L., Title “Reformation,” § 31; Jones v. McNealy, 101 Am. St. Rep. 38, 139 Ala. 379, 35 So. 1022. As the case now stands, Mrs. Gribson is left with the title to only eighty acres of land; while her brother has title to one hundred and ninety; and, while it clearly appears that T. J. Johnson intended to convey his son, W. W. Johnson, that quantity of land, it appears with equal clearness that he intended to convey one hundred acres of land to his daughter, Mrs. Gibson.

The court did not attempt to invest Mrs. Gibson with title to the west twenty. In fact, the parties necessary to the making of that order were not before the court, and therein lies the error for which the decree must be reversed. As the matter now stands, the west twenty acres is a part of the T. J. Johnson estate; and, while W. W. Johnson would be, and is, estopped by this suit from claiming that twenty acres, as against Mrs. Gibson, the rights of the other heirs are not affected by this litigation, as they are not parties to it. So long as the brother and sister litigated over the east twenty acres between themselves, the other heirs could stand by and let the litigation progress, as T. J. Johnson had apparently deeded the land to both W. W. Johnson and to Mrs. Gibson.

No showing is made that the other heirs conceded Mrs. Gibson’s title to the west twenty acres, and under the decree appealed from she would have to proceed to acquire in severalty the title to that land. If suit is necessary, it will devolve upon her to show, as against the other heirs, that a mistake was made in the execution of the deeds; and we can not know what showing those heirs might make against that contention in a proceeding to divest them of their title to the west twenty acres. Their silénce in the instant litigation would not prevent them from speaking in that litigation.

By failing to make all the heirs parties W. W. Johnson has not put the court in position to do equity. All the persons whose interests are affected should he brought before the court, to the end that the court might enter a decree which does equity, not only to W. W. Johnson, but to Mrs. Gibson.

Reformation and cancellation are equitable remedies, and relief by way of reformation or cancellation is granted only when it is equitable so to do. 22 Enc. of Procedure, p. 1030; 23 R. C. L., p. 346, and eases cited. Courts have the right, in granting this relief, to impose terms or conditions which work out the equities of the case; and we have concluded that Mrs. Gibson should not be required to bear alone the burden of litigating with the other heirs a question involving the title to the twenty-acre tract which is unaffected by the decree here appealed from so far as the rights of the other heirs are concerned. !

The decree will therefore be reversed, and the cause will be remanded with directions to make all the heirs of T. J. Johnson parties to the litigation.


author: Humphreys, J.

text:
    Townsend v. State.
    Opinion delivered May 16, 1921.
    Criminal law — corroboration op accomplice. — Testimony of accomplices that defendant in the night time broke and entered into a railway car and stole some smoked meat was sufficiently corroborated by proof that at a time when farmers or others who killed hogs would not have smoked meat, defendant, not being engaged in the meat business, attempted to sell smoked meat.
    Appeal from Chicot Circuit Court; Turner Butler, Judge;
    affirmed.

      N. B. Scott, for appellant.
    Except the testimony of accomplices, there is no evidence whatever of defendant’s guilt. The cases in 75 Ark. 540, and 63 Icl. 310 are conclusive of this case.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. Appellant did not object to the action of the court in giving instructions and can not do so on appeal for the first time. 78 Ark. 490. Exceptions to instructions must be saved during the trial and brought into the record by bill of exceptions, and can not be saved merely by assignment in a motion for new trial. 88 Ark. 505.
    2. The crime of burglary and grand larceny may be charged in one indictment. There were two counts in the indictment and defendant was plainly found guilty on both counts. 0. & M. Digest, § 3016; 71 Ark. 82.
    3. The evidence was sufficient to warrant the verdict, and it was sufficiently corroborated. 24 R. C. L. 779. There was sufficient corroborative testimony independent of the two accomplices to warrant the jury in finding defendant guilty.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Chicot Circuit Court for the crimes of burglary and grand larceny committed by breaking and entering a box car in the night time and taking from the possession of the Missouri Pacific Railroad Company meat of the value of $150, and his punishment was assessed for the former at five years in the penitentiary, and for the latter at two years. From the judgments of conviction an appeal has been duly prosecuted to this court. i • "

The convictions were procured on the testimony of St. Claire Crane and Sam Lynch, accomplices in the alleged crimes, Fred Morris and C. W. Tillman, agent and clerk, respectively, of the Missouri Pacific Railroad Company, Tom Baker and Harry Donaldson.

The evidence disclosed that, on the night of December 5, 1920, four cases of wrapped bacon, weighing about 500 pounds, manufactured by the Independence Packing Company of Kansas City, Missouri, of the value of twenty cents per pound, were stolen from a sealed car at Eudora, Arkansas, same being in the possession of the Missouri Pacific Railroad Company. The accomplices testified, in substance, that they, in connection with Clarence Snell and appellant, broke the seal of a box car at Eudora, Chicot County, Arkansas, on the night .of December 5,1920, and stole meat of the value of about $100.

Tom Baker testified that, in the month of December, appellant tried-to sell him some meat; and Harry Donaldson that, in the same month, appellant tried to swap him some smoked meat for meal.

The evidence disclosed that appellant was not a dealer in'meats.

Appellant contends that the evidence of the accomplices in the crimes is not sufficiently corroborated to warrant the conviction, under Crawford & Moses’ Digest, section 3181, which is as follows: “A conviction can not be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, in misdemeanor eases a conviction may be had upon the testimony of an accomplice. ’ ’

This court said, in the case of Vaughan v. State, 58 Ark. 353, in construing the statute in relation to felonies, that the corroborating evidence “must relate to material facts which go to the identity of defendant in connection with the crime.” The corroborating evidence in the instant case is to the effect that near about the time the offenses were committed appellant was attempting to sell or trade smoked meat. Appellant was not engaged in the meat business. It was too early in the season for farmers, or others who had killed hogs in the fall, to have smoked meat for sale. It is a matter of common knowledge that wrapped bacon, pnt np by manufacturing houses, has been smoked, and, at that season of the year, is the .only kind of smoked meat on the market. We think the corroborating evidence was of a substantial character, independent of the statement of the accomplices, tending to connect the defendant with the commission of the crimes. The evidence in the whole case was therefore sufficient to sustain the conviction.

No error appearing, the judgment is affirmed.


text:
    Byrd v. Baker-Matthews Lumber Company.
    Opinion delivered May 16, 1921.
    1. Evidence — parol testimony to explain writing. — Where some of the provisions of a contract for the sale of lumber indicated that the title was to pass as soon as the lumber was manufactured, while other provisions indicated that the title was not to pass until all the conditions of the contract had been complied with, parol evidence was admissible to show the intention of the parties.
    2. Sales — when title passed. — In a buyer’s action to recover possession of lumber from the sheriff who' had seized lumber under execution against the seller, evidence held to sustain the trial court’s finding that the lumber was to become the property of the buyer when manufactured, as against the contention that the agreement was that the title was to remain in the seller until performance of all the conditions of the contract.
    Appeal from Craighead Circuit Court, Lake City District; B. II. Dudley, Judge;
    affirmed.

      Hawthorne & Hawthorne and A. P. Patton, for appellants.
    Under the written contract, title to the lumber levied on did not pass-to appellee until all the conditions in the contract had been performed, and for that reason the execution lien of A. B. Jones Company took precedence over the claim of appellee.

      Title to property does not pass until it has been inspected, where there is a provision in the contract providing for inspection. 72 Ark. 141; 83 Id. 395; 49 Id. 86; 65 Id. 33; 50 L. R. A. (N. S.)’ Ill; 36 N. J. L, 449; 106 IT. S. 505; 37 Pa. St. 187; 72 Miss. 809.
    The undisputed testimony shows that the sheriff attached only such lumber as was manufactured and stacked after the execution came into his hands, as he did not attach any lumber that was inspected and marked “Property of Baker-Mathews Lumber Company.”

      Lamb & Frierson, for appellee.
    This case was tried by the court sitting as a jury, by consent of parties, and its findings have all the force and effect and are as. conclusive as the findings of a jury and verdict thereon. 60 Ark. 250. The contract for the sale of the lumber was executed and not executory. The sale was complete. 141 Ark. 393-404. The title passed. 20 N. E. 270; 120 N. W. 572. The question of intention as to delivery governs. In case of bulky articles or ponderous ones, actual delivery is not necessary, but constructive delivery is sufficient, which is governed by the intention of the parties. 24 R. C. L. 56; 104 Ark. 344; 30 L. R. A. (N. 8.) 461. 104 Ark. 344, is sustained by many Arkansas cases and cites them. Another strong circumstance indicating delivery is the fact that the lumber was stacked or proper leased to appellee. 24 R. C. L. 57, § 321, and cases cited. 141 Ark. 393. 404; 100 U. S. 124; 103 Ark. 331; 112 Id. 63: 81 Id. 373; 116 Fed. 261; 100 U. S. 124.
    The findings of the court are clear, positive and convincing’, and are sustained by uncontradicted evidence and should be sustained.
   Humphreys, J.

Appellee instituted suit in replevin against appellants in the Craighead Circuit Court, Lake City District, to recover the possession of forty-two stacks and 50,000 feet of loose lumber, situated at Rhoads Bros. & Co.’s sawmill, about two miles from Black Oak, in said county, claiming to be the owner thereof, which lumber was seized on the first day of April, 1920, by appellant, the sheriff of the county, under an execution issued on a judgment of A. B. Jones Company against Rhoads Bros. & Co. and placed in his hands on the 10th day of March, 1920.

Appellants, filed answer, denying that appellee was the owner of the lumber seized, and asserting its right to retain and sell same to satisfy the judgment obtained in said court at the January term in the sum of $2,505.43 in favor of A. B. Jones Company against J. T. and ~W. M. Rhoads, constituting the firm of Rhoads Bros. & Co.

The cause was submitted to the court sitting as a jury, upon the pleadings and evidence, which resulted in a verdict and judgment in favor of appellee for the possession of the lumber seized -by appellants under the execution aforesaid, or $5,000, its value. From that judgment an appeal has been duly prosecuted to this court.

The facts, as disclosed by the record, necessary to a determination of the issue involved on this appeal, are as follows: On or about May 12, 1919, appellee procured a lumber manufacturing contract from L. D. Leach & Co. with Rhoads Bros. & Co. for a cash payment of $10,000 and the' future delivery of a certain amount of lumber. At the time the manufacturing contract was procured, it obtained title to 800,000 feet of lumber on the -mill yard of Rhoads Bros. & Co. On the same day, to-wit, May 12,1919, appellee entered into a manufacturing contract with Rhoads Bros. & Co. and advanced the firm six or seven thousand dollars in cash on lumber to be thereafter manufactured. The written manufacturing contract, omitting the prices of the different sizes and kinds of lumber, is as follows:

“This memorandum and agreement, made and entered into this the 12th day of May, 1919, by and between Rhoads Bros. & Co., a copartnership composed of J. T. Rhoads of Jonesboro, Arkansas, and W. W. Rhoads of Cape G-irardeau, Missouri, with offices at Black Oak, Arkansas, hereinafter known as party of the first part, and Baker-Matthews Lumber Company, a corporation under and existing by virtue of the laws of Missouri, hereinafter known as the party .of the second part, witnesseth:

“Party of the first part agrees to sell, and does sell, and the party of the second part agrees to buy, and does buy, the lumber hereinafter described and specified, subject to the prices, terms, provisions and conditions hereinafter specified, towit, two million two hundred and fifty thousand feet of red and túpelo gum, oak, elm, maple, cypress, ash, cottonwood, túpelo and sycamore lumber, at the following prices: * * *

“All of No. 3 common which develops with lumber covered by this contract.

“It is understood that the price on the No. 3 common which develops in furnishing the above stock is to be $10 per thousand.

“The above prices are for delivery f. o. b. cars at Black Oak, Arkansas.

“It is understood that the red and sap gum is to be separated in loading, but it is further understood that, in the event said second parties require the sap gum to be sorted and shipped in straight cars of each grade, that they are to allow said first parties an additional $1 per thousand covering the cost of sorting.

“It is understood that there is approximately 800 M' of the various kinds of lumber above described on the mill yard of the parties of the first part at the present time, which is included in this contract and which is subject to all of the terms and provisions herein specified.

“This lumber shall be settled for by crediting the price of the same less 2 per cent., by the second party, against advances made, as herein provided, and any balance shall be accounted for and paid to the first party at the final discharge of this contract.

“It is further understood and agreed that all lumber applying on this contract is to be manufactured in a first-class, workmanship manner, and to be equalized and trimmed and to be of sufficient thickness when dry so that the thicknesses will be standard, as provided by the regulations and rules of the National Hardwood Lumber Association.

“It is further understood that all lengths are to be piled separate, in piles not more than six feet in width, and at least three feet apart, and of sufficient pitch so as to insure the best results in drying. The twelve-foot piles are to have five sticks to the layer, and the fourteen feet and sixteen feet piles are to have six sticks to the layer, and the sticks are to be placed directly over each other in the pile, so that the lumber will dry out straight. All lumber is to be piled on good solid foundation twelve inches from the ground in the lowest place, the heads of the twelve-foot piles to be twelve inches higher than the tails of same. Heads of fourteen-foot and sixteen-foot piles to be twenty inches higher than the tails of same, the lumber to be piled loose in the piles so as to leave plenty of room for the circulation of air through the pile, all piles to be properly covered by said parties of the first part when completed.

“All lumber applying on this contract to be piled not less than 200 feet from the sawmill or other surrounding buildings, brush, or anything that would invalidate the 200 feet clear space clause provided in the insurance policies, and said parties of the first part further agree to at all times maintain said 200-foot clear space.

“It is understood and agreed that said parties of the first part are to lease, and do hereby lease, to parties of the second part the ground on which the lumber applying on this contract is piled, or to be piled.

“It is further understood and agreed that, when said first parties have complied with all of the terms and conditions of this contract, preliminary thereto and herebe-fore and hereafter provided, parties of the second part are to advance on the first and fifteenth of each month, for lumber put in pile during the preceding two weeks, É17 per thousand feet, the balance of the contract price to be credited when the lumber is inspected and loaded out, subject to tbe terms hereinafter provided.

“It is further understood that no piles are to be estimated until the same are complete and properly covered.

“It is further agreed and understood that all lumber applying on this contract is to be cut from first-class, live merchantable timber.

“Parties of the first part agree to convey and transfer by bill of sale the piles of lumber covered by advances hereinbefore mentioned, together with a complete estimate of lumber, stipulating number of piles, length, thicknesses, and at what point located, each pile to be numbered and marked, ‘Property of Baker-Matthews Lumber Company of Memphis, Tenn.’

“Parties of the first part agree to keep all labor bills incidental to the cutting of the timber, hauling of same and the labor pertaining to the manufacture and piling of all lumber and the delivery of the same f. o. b. cars shipping point, applying on this contract paid up in full, as it is specifically understood that the advances made to the parties of the first part are to be used for this purpose, and in no case are the advances to be made to the said first party to exceed the actual cost and expense pertaining to the manufacture of this lumber and in no event is the amount advanced to exceed $17 per thousand as herein provided.

“It is understood that the parties of the first part are not to operate their mill, or cut lumber for any other parties than said second parties to this contract, until all of the indebtedness to said second parties shall have been fully liquidated.

“All lumber applying on this contract shall remain on sticks until same is in good shipping condition before being loaded out and inspected, whch shall be not less than four months, unless sooner ordered shipped or taken up by said second parties.

“It is further understood and agreed that said first parties are to pay said second parties interest at the rate .of 8 per cent, per annum on all moneys advanced to them under this contract, and payment to be made and the lumber credited as delivered f. o. b. cars at Black Oak, Arkansas.

“All of the terms, prices and conditions of this contract to inure to the benefit of the heirs, assigns or successors of either party hereto.

“All lumber applying on this contract is to be measured and inspected in accordance with the rules and regulations of the National Hardwood Lumber Association, now in effect. In the event of a failure of the representatives of the parties hereto to agree to an inspection or measurement of said lumber, then parties of the second part shall make application to the secretary of the National Hardwood Lumber Association for a licensed inspector of said association to inspect the lumber applying on this contract, and such official inspection, if had, to be final and binding on the parties hereto. The expenses of such official association inspection and measurement to be borne equally by the parties hereto.

“It is further understood that parties of the second part are to carry a sufficient amount of insurance against fire loss to cover the market value of the lumber covered by this contract, if same can be procured in reputable and solvent insurance companies and the cost of said insurance to be charged to said first parties and taken out of the settlement of balances on lumber delivered herein.

“In witness wherefore, the said first and second parties have caused these presents to be executed by their respective representatives and hereto set their hands and seals on the date first herein written in duplicate.

“Rhoads Bros. & Co.,
“By W. "YV. Rhoads.
“By J. R. Rhoads.
“Baker-Matthews Lumber Company,
“By H. W. Baker, Jr.”

On November 3, 1919, a similar contract to the one copied was entered into between the parties advancing the prices to be paid for the lumber,

Immediately after the execution of the contract Rhoads Bros. & Co. began to manufacture the lumber thereunder, receiving advances every two weeks, based upon preliminary inspections. Baker and Matthews leased from Rhoads Bros. So Co. the lands upon which the mill was situated and adjoining the mill site. Appellee paid Rhoads Bros. So Co.’s entire pay roll for manufacturing the lumber from time to time, and took an assignment thereof. Appellee also paid the lien of Dr. W. E. Yount for logs out of which the lumber was manufactured and had the lien assigned to itself. A number of letters, receipts and pay rolls were introduced and made a part of the record, showing advances and payinents made by appellee to Rhoads Bros. So Co. An account between appellee and Rhoads Bros. So Co. was also filed, showing that at the time the contracts were completed Rhoads Bros. So Co. was indebted to appellee several thousand dollars, on account of said payments and advancements. The effect of the testimony of H. W. Baker, ap-pellee’s secretary, and W. L. Brisco, appellee’s inspector, wás that it was in contemplation of the parties from the inception of the contract that all the lumber of the kind and character specified in the contract should become the property of appellee as soon as manufactured.; that the stacking, inspection and marking of the stacks were a method of ascertaining the advances to be made, and had no relation to the method of transferring the title to the lumber. The debt of A. B. Jones Company against Rhoads Bros. So Co. existed at the time appellee and Rhoads Bros. So Co. entered into the manufacturing contract. The evidence tends to show that A. B. Jones Company understood the nature and character of the contract entered into between appellee and Rhoads Bros. & Co., and, during the period the lumber was being manufactured, received payment of about $500 from appellee upon the debt. As we understand the evidence, none of the indebtedness of A. B. Jones Company against Rhoads Bros. So Co. was on account of advances made during the time the lumber was being manufactured. While there is a conflict in the evidence as to whether an inspection had been made of the stacks levied upon at the time the execution was received by the sheriff, the undisputed evidence does show that all the conditions in the written contract had not been complied with at that time.

Appellant’s contention for reversal is that, under the written contract, title to the lumber levied upon did not pass to appellee until all the conditions in the contract had been performed; and, for that reason, the execution lien of A. B. Jones Company took precedence over any claim of appellee to said lumber. There is no provision in the written contract specifying when title to the lumber should pass from Bhoads Bros. & Co. to appellee. Some of the provisions indicate that the intention was for the title to pass as soon as the lumber was manufactured, and other provisions indicate that the title should not pass until all the conditions in the contract had been complied with. There is an ambiguity in the contract as to when title to the lumber should pass. It was therefore admissible to show the intent of the parties to the contract at the time of its execution, with reference to the time of delivery. In the case of McDermott v. Kimball Lumber Co., 102 Ark. 344, the court, in discussing this question, announced the doctrine that “title to chattels sold passes where such is the intention of the seller and buyer, though something remains to be done, as, for example, the fixing of the quantity or amount of the property or the payment of the purchase money.” The written contract in the instant case might well be construed as intending to pass the title to the lumber in question as it was manufactured and all the conditions in the contract as relating to the mode and method of settlement between the parties, but there are conditions which might also be construed as indicating that the title to the lumber should not pass until all the conditions in the contract were fully performed. All the oral evidence, however, and we think many of the potent circumstances surrounding the case, indicate that it was the intention of the parties that the title to the kinds of lumber specified in the contract should pass to the appellee when manufactured. Both H. W. Baker and W. L. Brisco testified that such was the intention of the parties to the contract. The fact that appel-lee advanced the money to pay for the logs and to pay all the labor in manufacturing them into lumber is a strong circumstance tending to establish an intention between the parties that the lumber, when manufactured, should become the property of appellee. There are other circumstances tending to establish that such was the intention of the parties. For example: The lease of the mill site and adjoining lands by Rhoads Bros. & Co. to appellee and the procurement of insurance on the lumber in the name of appellee. Having concluded that there is ambiguity in the written contract as to when the title to the lumber should pass to appellee, we find ample evidence in the record to sustain the specific finding of the court to the effect that it was the intention of the parties that the entire output of the mill of Rhoads Bros. & Co. should become the property of appellee when manufactured.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Robertson v. State.
    Opinion delivered May 23, 1921.
    1. Intoxicating liquors — manufacture of whiskey — evidence.— Evidence that defendant, accused of manufacturing whiskey, was engaged in operating a still for the manufacture of whiskey and that whiskey was found on his premises, in the absence of evidence that any one besides defendant frequented the premises, was sufficient to sustain a finding that he manufactured whiskey.
    2. Intoxicating liquors — manufacture of whiskey — instruction. —Where the indictment charged the unlawful manufacture of whiskey, and the evidence tended to prove its manufacture, the sole question being whether or not he succeeded in the effort, an instruction to the effect that defendant could be convicted if he manufactured “alcoholic, ardent, vinous, malt or fermented liquors which could be used and drunk as intoxicating beverage,” was harmless.

      3. Intoxicating liquors — manufacture of evidence — evidence.— Evidence that liquor was found near where defendant lived was admissible to prove that liquor was manufactured by appellant on the premises.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      Williams & Holloway and Guy E. Williams, for appellant.
    1. Tke court erred in allowing prejudicial testimony to be introduced.
    2. It was error to refuse to permit defendant to file a demurrer to the indictment which would have shown that defendant’s name is Will Bobinson and not Bill Bob-ertson, as charged in the indictment. 85 Ark. 12; 101 Id. 151.
    2. Instruction No. 1 is erroneous and prejudicial because not responsive- to the proof and is not law. Defendant was charged with manufacturing ‘ ‘ whiskey, ’ ’ and there was no proof that the mixture he had made was intended to be used and drunk as a beverage. 216 S. W. 695; 215 Id. 631.
    3. It was error to single out defendant and instruct the .jury as to his credibility as a witness. 58 Ark. 353. ■ See, also, 61 Ark. 88; 62 Id. 543; 77 Id. 334; 69 Id. 558.
    Before a conviction can be had upon circumstantial evidence, such evidence must be so strong as to convince the jury of defendant’s guilt to such an extent as to exclude every other reasonable hypothesis than defendant’s guilt. 34 Ark. 632.

      J. 8. Utley, Attorney General, Elhert Godwin and W. T. Hammock, Assistants, for appellee.
    1. No incompetent or prejudicial testimony was introduced. Besides, no objections were made to same, and no motion to exclude same from the jury was made.
    2. There was no error in refusing to permit defendant to file a demurrer to the indictment, as no attempt was made to file such demurrer. While appellant alleges said error in his motion for a new trial, this is not sufficient, as no.objection was made or exceptions saved. 73 Ark. 407; 90 Id. 482. An objection made for the first time on appeal is unavailing. 123 Ark. 66.
    3. There was no variance between the indictment and proof. If appellant was identified as the one sought to be punished it is sufficient. 113 Ark. 112; 122 Id. 391. Errors not set out in the motion for new trial will not be considered on appeal. 117 Ark. 198; 133 Id. 196.
    4. The court correctly instructed the jury. Counsel misconstrue and misconceive the decision of the court in 215 S. W. 629. Instruction No. 4, considered with the others given, clearly state the law, and authorities are unnecessary, as it is well settled.
    5. The verdict is sustained by the evidence. The evidence is abundantly sufficient to warrant the verdict of guilty.
   McCulloch, C. J.

Appellant was convicted under an indictment charging him with having manufactured “one pint of alcoholic, ardent, vinous and intoxicating spirits, commonly called ‘whiskey.’ ” It is undisputed that appellant erected a crude distillery m an outhouse at the home of one Ezell Trice in Lonoke County, where he lived, and that he attempted to manufacture whiskey. Appellant admitted as much in his testimony, but he denied that he completed the distillation of the whiskey from the raw material which he was using. He used a metal coal oil tank or barrel and a wooden keg, into one of which he put the sour mash and the two containers were connected with a cane pipe used as a “worm.” Appellant testified that he put into the keg a half-bushel of chops, two gallons of molasses and five buckets of water. A hole in the ground was used as a furnace, and the metal barrel was set over it. A fire was built in the'furnace, and after the contents of the barrel became heated ah explosion occurred. Appellant’s effort to manufacture whiskey was thus discovered, and his arrest followed in a few hours, as soon as the services of an officer could be procured.

Appellant freely admitted to the officer, and admitted on the witness stand, that he was attempting to make whiskey for his own use, but he claimed that he did not succeed in the effort, which was frustrated by the explosion.

After appellant was arre,sted and taken to jail, the officer went back to the house of Ezell Trice, and the latter carried him out a short distance from the house and discovered buried in the ground two jugs and a bottle of white “moonshine” whiskey. Trice testified that he did not put the whiskey there and did not know it was there until it was discovered on the search made by him and the officers. One .of the officers who made the arrest testified concerning the condition of the crude distillery that he found, and also stated that some of the material used in making the liquor had been poured out on the ground.

It is earnestly contended that the evidence is insufficient to establish the fact that appellant manufactured any whiskey; that the proof merely shows that he was engaged in an effort to make whiskey, but that he did not complete it. Wé think, however, that the evidence is sufficient to warrant the jury in finding that the operation of the distillery resulted in the manufacture of whiskey. The fact that used raw material was poured out on the ground and also the fact that whiskey was found on the premises is sufficient to warrant the inference that whiskey was manufactured there by appellant. The two jugs and the bottle of whiskey were found on the premises only a few hundred yards from the house of Trice, who testified that neither he nor his wife put the whiskey there, and there is no evidence that any one else besides appellant frequented the premises.

It is next contended that the court erred in giving an instruction to the .effect that the defendant could be convicted if the proof showed that he had manufactured “alcoholic, ardent, vinous, malt or fermented liquors which, could be used and drank as intoxicating beverage, ’ ’ when the indictment specifically charged the manufacture of whiskey. Conceding, under the rule announced by this court in Carleton v. State, 129 Ark. 361, that the particular language of the indictment was descriptive of the offense and that the proof must be confined to the kind of liquor specifically named, we are of the opinion that the instruction given by the court was not prejudicial, as the sole issue in this case was whether or not appellant succeeded in manufacturing whiskey which he was undertaking to do at the distillery when the explosion oe-, curred. Appellant admitted that he was attempting to manufacture liquor, and, as before stated, the sole question was whether or not he succeeded in the effort. It is not conceivable that the jury were misled by this instruction and reached the conclusion that appellant manufactured anything else but whiskey. We think the instruction was harmless.

Again, it is insisted that the court erred in permitting one of the officers to testify concerning the finding of whiskey near Trice’s home. We think that this had some tendency to prove that liquor was manufactured by appellant on the premises, and that the ruling of the court in admitting the testimony was correct.

Judgment affirmed.


text:
    Farmers’ Bank & Trust Company v. Boshears.
    Opinion delivered May 23, 1921.
    1. Banks and banking — receiving deposit after banking hours. —Where there was testimony tending to prove that it was the custom of the employees of a bank to receive deposits after the usual hanking hours for the purpose of accommodating belated customers, it was not error to submit to the jury the question whether the bank was liable for a deposit so made.
    2. Banks and banking — duty of depositor to check up account. —While no rule can be laid down that will cover every transaction between a bank and its depositors, the latter’s duty to make objection to the statement of his account- is discharged when he exercises such diligence as is required by the circumstances of the particular case, including the relations of the parties and the established or known usages of the banking business.
    3. Banks and banking — reasonable time for objecting to statement. — In an action against a bank to recover a deposit, which the bank denied having received, whether the plaintiff made objection within reasonable time to the statement furnished by the bank, not showing the deposit, held- for the jury.
    4. Banks and banking — finding of deposit made. — In an action against a bank by a depositor to recover a deposit claimed to have been made, evidence held to sustain finding that such deposit was made.
    Appeal from Mississippi Circuit Court, Chickasawba District; B. H. Dudley, Judge;
    affirmed.

      Davis, Gosten- & Harrison, fof appellant.
    The court should have given defendant’s requested instruction No. 1, and also have given requested instruction No. 5 without modification. The proof establishes a conclusive case of estoppel. The undisputed evidence shows that the money was received by the "bank’s employees, if at all, after banking hours, when there was no officer to receive such deposit.
    Appellee received and receipted for' two statements of the bank with full knowledge that if no error was reported within ten days the account would be considered correct. He made no complaint and is estopped. 126 Ark. 266. The deposit was made, if at all, after banking hours. The bank is not responsible unless the deposit is made during banking hours. 7 C. J., p. 637, §§ 318-19; 1 Morse on Banks, etc. (5 ed.), pp. 9-381. The evidence of Mr. Gray was not sufficient to establish a custom of the hank to receive deposits after banking hours. 17 O. J. 522, § 91; lb. 524, § 92.

      A. G. Little and Arthur L. Adams, for appellee.
    Appellant’s contentions for a directed verdict are not'sustained by the law or the evidence. No estoppel is shown by the evidence. On appeal'the evidence should be given its strongest probative force in favor of ap-pellee. 141 Ark. 617-24; 135 Id. 466-70.

      The doctrine of estoppel and account stated is an artificial one, growing out of the law merchant. It is highly penal and should be liberally construed with reference to those against whom it is invoked. 57 Miss. 51; 34 Am. Bep. 435; 42 N. H. 158; 27 L. B. A. 820 (note). Ten days can not be arbitrarily fixed as sufficient time under all circumstances for a bank depositor to examine his pass book after it has been balanced and returned to him with canceled vouchers. 103 Mo. App. 613; 77 S. W. 1002.
    Failure to examine the pass book within a reasonable time after it is balanced will not estop a depositor from subsequently showing the incorrectness of the statement, though by his delay he may be compelled to assume the burden of overcoming the presumption arising of its correctness. 147 Ill. App. 193; 60 App. Div. 241; 70 N. Y. S. 246; 187 Mo. App. 483; Michie on Banks, etc., § 133.
    A reasonable time is to be determined by the situation of the parties and nature of the business. It would be unreasonable to apply the rule applicable to merchants to the mechanic or farmer. 12 Barbour 487; Michie on Banks, etc., § 138; Bald. C. C. 539. The cases cited for appellant, 126 Ark. 266 and 117 U. S. 96, are not in point. See 141 Ark. 414. There was ample testimony here to take the case to a jury. A usage, being a matter of fact, may be proved as any other fact. 17 C. J. 524, § 92.
    The finding of the jury has established the usage or custom of the appellant to receive deposits after the usual banking hours, and appellant’s case falls. Established usage is binding on a bank. 57 N. Y. 131; 1 Head 162; 17 C. J. 479-80, § 42. See, also, 7 Wis. 1; 73 Am. Dec. 381; 7 C. J. 637; 21 *L. B, A. 440 and note.
    Taken altogether, the instructions state the law and there is no error. 97 Ark. 358-363; 98 Id. 211, 219'; 100 Id. 437-441.
   McCulloch, C. J.

Appellant is a banking: corporation engaged in business in the city of Blytheville, -in this State, and during the antumn of the year 1919 appellee, a farmer living eight or ten miles out in the country from Blytheville, was one of its depositors. He claimed that he made a deposit of $250 on October 17, 1919, which does not appear to his credit, and on the refusal of the hank to place it to his credit he instituted this action to recover that sum.

The issues in the case are whether the amount was deposited by appellee, as claimed by him; whether the deposit was received by an employee of the bank, if at all, at such time as he was authorized to receive de-dospits; and whether appellee is precluded from recovery of the sum by his failure, within apt time, to make objection to the account rendered him by the bank.

Appellee was a tenant on the farm of a Mr. Bay, who was formerly the president of appellant bank, and at the time of the transaction in controversy was one of its directors. According to appellee’s testimony, he brought cotton to Blytheville on October 17, 1919, and after selling it he and Mr. Gray had a settlement of their accounts, and he paid Mr. Gray a small balance due him, and, having the sum of $250 left out of the proceeds of the cotton, he deposited it'in appellant bank. He described the method of deposit as follows: That he counted out the money to Mr. Gay, who made out a deposit slip and handed it to Mr. Cheatham, the assistant cashier, who accepted the money and placed the letters O. K. on the deposit slip with his initials attached. This was after the usual closing time of the bank, but the assistant cashier was in the bank at the time and received this deposit. Appellee testified further that he was accustomed to making deposits in this way after the usual banking hours for the reason that he came a long distance with his cotton, and did not usually sell it until after the bank closed. There was other testimony tending to show that it was the custom of the bank to receive deposits after the usual banldng hours.

The testimony adduced by appellant tended to show that the money was never received by the bank or any of its employees. Cheatham testified that he had no recollection of the deposit, and it is shown by his testimony and that of other employees that the deposit had never been entered on the books of the bank, and that the amount of funds in the bank did not indicate that they exceeded the amount entered on the books. Mr. Cheatham also testified that the initials on the deposit slip held by appellee were not in his handwriting.

On October 21 appellant sent to appellee, by mail, a statement of his account which did not show this deposit. The statement concluded with the following notice:

“This statement is furnished you instead of balancing your pass book. It saves you the trouble of bringing your pass book to the bank and waiting for it to be balanced. These statements will be found very convenient to cheek up and file. All items are credited subject to final payment. Use your pass book only as a receipt book when making deposits.”

Another statement was furnished in like manner on December 15, 1919. There is a conflict in the testimony as to when appellee made objection to the bank that his account was not correctly set forth in the statement furnished to him. He testified that he made the discovery in three or four days after he received the statement by checking up the account with his deposit slips at home; that because of the fact that Mr. Gay. was one of the directors of the bank he had made the deposit through the latter, and waited to see him before making his protest to the bank, and that it was several weeks before he could find Mr. Gay in town. He testified that at the first opportunity he presented the matter to Mr. Gay, and that they went to see the cashier of the bank, and presented the deposit slip showing the deposit of this amount on the date mentioned.

The issues were properly submitted to the jury, and the court, among other instructions, gave the following: “Even though you may believe from the evidence that the .deposit- in question was received by the officers of the bank, if you further find and believe from the evidence that thereafter the plaintiff Boshears received a statement or statements from the bank showing the amount of the deposits made by him and the charges against his account, as shown by the vouchers, and upon receiving such statement or statements he did not in a reasonable time thereafter notify the bank of the errors here complained of and that such failure upon his part to so notify the bank occasioned injury to the bank, you will find for the defendant.”

The contention of appellant’s counsel is that the court should have given a peremptory instruction, for the reason that the undisputed evidence shows that the money was received by the bank’s employees, if at all, after banking hours when there was no officer to receive such deposit and also because the undisputed evidence shows that appellant waited an unreasonable length of time before he made objection to the statement sent to him omitting this deposit. We think the contention of counsel in both respects is unfounded. There is testimony tending to show that it was the custom of the employees of the bank to receive deposits in the bank after the usual banking hours for the purpose of accommodating belated customers. The testimony also warranted a-submission of the issue as to whether or not the objection made by appellee to the statement of his account was within a reasonable time. The rule approved by this court in several cases was stated by the Supreme Court of the United States in Leather Manufacturers’ National Bank v. Morgan, 117 U. S. 96, as follows: “While no rule can be laid dowin that will, cover every transaction between a bank and its depositors, it is sufficient to say that the latter’s duty is discharged when he exercises such diligence as is required by the circumstances of the particular case, including the relations of the parties, and the established or known usages of banking business.” Citizens Bank & Trust Co. v. Hinkle, 126 Ark. 266; Bank of Black Rock v. B. Johnson & Son Tie Co., 148 Ark. 11.

Considering the circumstances under which the alleged deposit was made and the circumstances under which appellee was placed when he received the notice omitting this deposit, we think that the trial jury was warranted in drawing the inference that appellant proceeded with proper diligence in presenting his protest to the bank, and that it was made within a reasonable time, considering all those circumstances.

The testimony was conflicting as to whether or not the deposit was actually made, hut there was sufficient evidence to warrant the jury in finding that appellee deposited the sum mentioned in the manner which he described in his testimony.

Judgment is therefore affirmed.


author: Wood, J.

text:
    Brickey v. State.
    Opinion delivered May 23, 1921.
    1. Continuance — absence op witness. — It was not error to refuse a continuance for the absence of a material witness where the motion for continuance was not verified by defendant or his attorney, nor where another witness testified, on defendant’s behalf, to substantially the same facts set up in the motion.
    2. Continuance — absence op counsel. — It is not an abuse of discretion to refuse a continuance on account of the absence of employed counsel, unless such counsel is absent by reason of sickness or some other unavoidable casualty; the absence of counsel by reason of his attendance upon another court in causes therein pending in which he is also employed as' counsel not being an unavoidable casualty.
    S. CRIMINAL law — time op sentence waived. — Under Crawford & Moses’ Digest, § 3229, providing that, “upon the verdict of conviction in cases of felony, the court shall not pronounce judgment until two days after the verdict is rendered unless the .court is about to adjourn for the term, and then in not less than six hours after the verdict, except by the defendant’s consent, held that a judgment pronounced twenty-four hours after verdict in a felony case will not be reversed as being prematurely rendered where it does not appear when the court adjourned, and where defendant was given an opportunity to object to- the pronouncement of the sentence and did not do so.
    Appeal from Van Burén Circuit Court; J. M. Shinn, Judge;
    affirmed.

      J. Allen Eades, for appellant.
    It was error in overruling the motion for continuance. It stated good grounds for continuance. A material witness duly summoned was sick and unable to get to court. Act 52, Acts 1905, p. 143; 50 Ark. 161; 10 Id. 528; 21 Id. 560; 89 Id. 130; 64 S. W. 412. Absence of defendant’s counsel without fault was good ground for continuance. 26 S. W. 60; 21 Ark. 460. The court abused its discretion in refusing a continuance.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. There was no error in refusing the continuance on the grounds stated therein. It does not state the materiality of the testimony of the absent witnesses or what they would testify to if present. C. & M. Digest, § 1270; 187 S. W. 308; 2 Ark. 33; 101 Id. 513. The testimony of the absent witness was cumulative merely. 215 S. W. 1. No abuse of discretion by the court was shown. 103 Ark. 352; 138 Id. 500. Due diligence was not shown. 90 Ark. 1.
    2. The verdict is supported by the law and the evidence.
   Wood, J.

On the 9th of March, 1921, the same being an adjourned day of the regular February term of the Van Burén Circuit Court, the appellant was convicted of the crime of selling intoxicating liquors, and by judgment of the court sentenced to imprisonment in the State penitentiary for one year. From that judgment he prosecutes this appeal.

1. Appellant urges as a ground for reversal of the judgment that the court erred in overruling his motion for a continuance. He assigns two reasons why the court erred. First, because of the absence of H. G-. Woi-verton, a material witness, who was summoned before the court convened, and who was sick and unable to attend. The motion for continuance was in due form, but was not verified either by the appellant or his attorney for him, and, furthermore, another witness testified on behalf of appellant to substantially the same facts' set up in the motion tending to impeach the testimony of the State’s witness. The court did not abuse its discretion under these circumstances in overruling the motion. Sections 1270 and 3130 of Crawford & Moses’ Digest. Morris v. State, 103 Ark. 352; James v. State, 125 Ark. 269; Burris v. Wise & Hind, 2 Ark. 33, 40; State Life Ins. Co. v. Ford, 101 Ark. 513.

2. The appellant set up that the cause should be continued on account of the absence of J. A. Eades, who was unable to attend court because the adjourned term was at a day when the circuit court was in regular session at Morrilton, requiring the attorney’s presence at the latter court. The affidavit of Eades in support of this ground of the motion shows that he had been employed by the appellant to defend him, and his fee had been paid; that he appeared in attendance at the regular term of the Van Burén Circuit Court, but that court was adjourned until the 7th of March on account of the absence of the regular judge; that he could not appear at the adjourned day because on that day the regular term of the circuit court was in session at Morrilton, and he could not be present at both courts and was compelled, on account of his business in the latter court and the duty lie owed his clients there, to attend that court. Of these facts he duly notified the presiding judge of the latter court and also the prosecuting attorney, and requested a continuance of the cause to the regular fall term >of the Van Burén Circuit Court. The regularly employed attorney being absent, the court appointed Garner Fraser, an attorney in attendance at the adjourned term of the Van Burén Circuit Court, to represent the appellant, who prepared and filed his motion for continuance, and conducted his defense.

The court did not err in refusing appellant’s motion to continue because of the absence of employed counsel. The right to be heard by counsel, guaranteed to persons accused of crime by the Bill of Bights, article 2, section 10, Constitution of 1874, was not denied the appellant in this case. On the contrary, when his regularly employed counsel did not appear, the court appointed counsel to represent him. Counsel who are employed to represent clients having cases pending in courts must so arrange their business as to be able to appear to represent their clients when those cases are called for trial. The business of the courts can not be controlled, interrupted, or made to conform to the business interests of attorneys. The fact that an attorney may have cases for clients pending in different courts whose terms convene at the same time, and which condition may render it impossible for the attorney to be in attendance at one of the courts, is no imperative reason for the continuance of the causes in which he is employed in the court which he does not attend. These are matters addressed to the sound discretion of the presiding judge of the court, who must conduct the public business entrusted to him in a manner most conducive to the interests of the public whom he serves. It is never an abuse of discretion for the court to refuse to grant a continuance in a cause on account of the absence of employed counsel, unless such counsel is absent by reason of sickness or some other unavoidable casualty. The absence of an attorney from a court where causes are pending in which he is employed as counsel because of causes pending in other courts in which he is also employed as counsel is not an unavoidable casualty.

3. The appellant contends that the court erred in sentencing the appellant on the day after the verdict of guilty was returned against him. The appellant relies upon section 3229 of Crawford & Moses’ Digest, which provides in part as follows: “Upon the verdict of conviction in cases of felony, the court shall not pronounce judgment until two days after the verdict is rendered unless the court is about to adjourn for the term, and then in not less than six hours after the verdict, except by the defendant’s consent.” The record shows that the jury returned a verdict on the 9th of March, and the record entry of March 10 is as follows: “The defendant was this day brought into open court and, being informed of the nature of the indictment, plea and verdict, was asked if he had any legal cause to show why sentence should not be pronounced against him, and, none being shown, it is adjudged, etc.” The record does not show when the Van Burén Circuit Court adjourned. In the absence of any showing to the contrary, it will be presumed that the sentence was pronounced according to law. Moreover, the appellant did not make any objection at the time to the pronouncement of the sentence, and he was given an opportunity to do so. He therefore must be held to have waived the time specified in the statute.

"We find no errors in the record, and the judgment is therefore affirmed.