author: Mehaffy, J.

text:
    Scott County Milling Company v. Weems.
    Opinion delivered July 1, 1929.

      Bailey & -Bailey and Cooley & Adams, for appellant. J. G. Waskom, for appellee.
   Mehaffy, J.

The appellant, a Missouri corporation, is engaged in the production and shipping, wholesale, of flour, grain and kindred feedstuffs. Two or more years prior to March 4,1927, it had dealt with the appellee, who was engaged in the mercantile business at R-ivervale, in Poinsett County, Arkansas. Shipments had 'been made from appellant to appellee in carload lots. The cars shipped were consigned to Rivervale, Arkansas, and from twelve to fifteen shipments were made each year. At the beginning of their relations appellant asked appellee where he did business, and appellee told him at the First National Bank of Lepanto. Thereafter drafts were drawn by appellant for each shipment, with bill of lading attached, through the First National Bank of Lepanto, Arkansas. All of these drafts had been regularly and promptly paid; except the one here in controversy.

When the draft and bill of lading reached the bank, the bank would notify the appellee, he would call and get the bill of lading, and the bank would charge the amount to appellee’s account and remit to appellant. Appellee never gave a check and never gave money in payment of draft, but directed the bank always when it received a bill of lading to charge the draft to his account. Appel-lee had at all times more than enough money to pay the draft in question, and there was at all times more than enough cash in the bank to pay the draft. The draft in controversy amounted to $865.10. When the bill of lading and draft came for the shipment on February 14, 1927, a member of the firm of appellee called the bank on the phone and directed them to deliver the bill of lading to George Need for appellee, and directed the bank to charge the draft to the account of J. L. Weems & Son. This was what was always done; the bill of lading was delivered, and the car received by appellee.

The records of the bank do not show that appellee’s account was charged with the draft and do not show that the draft was marked paid, and the bank never remitted to appellant. The hank had never required a check or a formal order from appellee to charge his account with the amount of the drafts and to deliver the bill of lading. They treated the draft as a check. When the shipment involved in this suit was made on February 14, 1927, the bank received the following letter from the appellant:

“Please find our draft No. 3564 for $865.10, drawn on J. L. Weems & Son. We are handing you this item as our agent only to collect and hold the funds collected in trust from and to be accounted for to us, and not to be mingled with any other funds, but, when collected, to be held by you as our trustee until paid to us. Please remit to us in St. Louis, New York or Chicago exchange.”

The bank was dosed on March 4,1927, and appellant demanded payment of the amount of the draft from ap-pellee, and payment was refused. 'Suit was brought in the circuit court, asking judgment for the amount of the draft for the goods shipped, and appellees answered, denying the indebtedness, and alleging that the bank was the appellant’s agent, and that there was at all times sufficient money in the account of the appellee to pay the draft, and that appellant could not recover a loss caused by the neglect of its agent.

At the close of the testimony both parties requested the court to direct a verdict in their favor, and the court directed a verdict in favor of appellee, and judgment was entered accordingly. Appellant filed its motion for new trial, which, was overruled, and an appeal is prosecuted to this court.

Appellant states that the question here presented is whether the drawee is liable to the drawer for the amount of the draft when the bank to which it was sent for collection at drawee’s suggestion, if not at his request, fails to remit the proceeds, charge the drawee’s account, mark the draft paid, or do any other act indicating payment after the attached bill of lading was surrendered, and before the bank’s doors were closed eleven days thereafter. We do not agree with appellant that the draft was sent to the bank for collection at appellee’s suggestion. On the contrary, the undisputed proof shows that appel-lee made no suggestion or request about the sending of the draft or to whom it was to be sent, but the appellant simply asked appellee where appellee did business, and he was told that appellee did business at the First National Bank of Lepanto. The appellee had never at any time, so far as the proof in this case shows, made any suggestion or request that the drafts be sent to the bank at Lepanto. The appellant made the bank its agent when it inclosed the draft and bill of lading; it stated to the bank that the draft was handed to it as agent of appellant only to collect and hold the funds collected in trust and to be accounted for to appellant, and not to be mingled with any other funds, but, when collected, to be held in trust by trustee for appellant. Appellant did not communicate with appellee, but communicated with the bank, its agent.

It is earnestly insisted that an agent having for collection obligations due to its principal can receive only money in payment, unless otherwise directed, and that these principles apply to banks holding drafts for collection. We agree with the appellant that this is the general rule, but, in the instant case, it has no' application, because the appellant constituted the bank its agent, sent the bill of lading and draft to its agent just as it had for more than two years, and the bank delivered to the appel-lee the bill of lading just as it had each month for more than two years, and was directed to charge appellee’s account with the amount of the draft. When the .draft and bill of lading came to the bank and the bank delivered the (bill of lading to appellee on appellee’s direction to charge the amount to his account, having ample funds to pay the draft, this was an appropriation of ap-pellee’s funds in the bank of the amount of the draft. Appellee not only did all that he ever did when he received a bill of lading, but all that he could be expected to do.

The cashier of the bank testified that they always treated the drafts as checks, and that the appellee never paid either money "or check, but that it was always handled just as it was in this instance. The .bill of lading would be delivered to the appellee, and he would order the bank to charge his account with the amount.

In the trial of the case the court asked Weems the following questions: “Q. Mr. Weems, how came them to draw these drafts through the First National Bank of Lepanto? A. Mr. Bowman said that was his way of doing business, and he preferred to do it that way. Q. How came them to select the First National Bank of Lepanto? A. Well, they asked me where I did business, and I told them. ’ ’

B.. M. Johnson testified that he had been in the banking business for thirty-five years, and it is the custom to treat a draft, under the circumstances of this case, as a check; it serves both as a check and a.receipt.

J. L. Weems, one of the appellees, testified: “That I just went to the bank and called for the bill of lading, and they would hand me the bill of lading and charge the draft to me, and the draft would come out exactly as a check. I never did pay for it with money. They would charge it just like they would a statement, and the draft would be like a check .at the end of the month.”

The witness identified fourteen monthly statements received from the First National Bank of Lepanto with a draft attached to each one, showing the several drafts to have 'been used and treated as checks for the items charged on said ledger sheets.

Minnie "White, the cashier of the bank, testified that she did not remember ever having a check from Weems, bnt they used a draft as a check, and charged it to his account. The bank did not require a cheek or a. written order from him, but used a draft, and all of these drafts were used just as a check, and the bank regarded them as checks.

Weems also testified that he gave them orders, and that it was standing authority to pay the drafts when they delivered to him the bill of lading.

This bank was selected by appellant; the method of making the shipments, sending the draft and bill of lading to this particular bank was selected by appellant, and appellee had nothing to do with it except to go to the •bank, get the bill of lading, and order his account charged with it. In the sending of the draft in controversy, the appellant wrote a letter expressly stating that the draft was sent to the bank as its agent. Appellant selected the bank; it was acting for appellant under appellant’s directions. It' had authority to act for appellant, and we think appellant is bound by its actions. It is true that ordinarily the bank to which paper is sent for collection is the agent for the payee, but in this instance the appellant selected the bank named as its representative, and delivered the bill of lading and presented the draft and received payment, and the appellee paid it in the usual way, that is, directed the bank to charge his account with it, and we do not think it possible to find any basis on which to rest .a holding that the bank was the agent for the appellee or that it acted in a dual capacity. Xppel-lee, at most, simply acquiesced in appellant’s selection of the First National Bank of Lepanto, and this acquiescence in the selection made by the appellant did not constitute the Bank of Lepanto the appellee’s agent. A case involving a question very similar to the question in this case was decided by the Supreme Court of Mississippi, and among other things the court said:

“The bank to which a cheek is sent for collection is the ag’ent of the holder of the cheek for the purpose of making the collection, and the payment of such check absolves the drawer from further liability thereon; * * * when a check is received for collection by the bank on which it is drawn, and the drawer then has sufficient funds on deposit with such hank with which to pay the check, the drawer will be discharged from further liability on the check, although the bank fails to pay the amount of the check to the holder thereof from whom it was received, notwithstanding the bank may be then insolvent, provided it was then open for business, and it does not appear that, in the event the check had been presented to it by another collection ag’ent, it would not have been paid.” Marine Bank & Trust Co. v. Triplett, 149 Miss. 274, 115 So. 202.

The court in the above case also said:

“The agreed facts in this case show that, when the Bank of Centerville received the check involved for collection, and for some days thereafter, it had on deposit to the credit of appellee, the drawer of the check, sufficient funds with which to pay the same. The Bank of Centerville, as the agent of appellant for the collection of the check, should have charged appellee’s account with the amount of the cheek. The failure of the Bank of Centerville so to do was the cause of the check not being paid by the appellee. The Bank of Centerville was the agent of appellant for the collection of the check. The failure of the bank to perform its duty by charging the amount of the check to appellee’s account is chargeable to its principal, the appellant. Therefore whatever loss there was must fall on appellant and not on the appellee. ’ ’

In the instant case the First National Bank of Le-panto, as the agent of appellant for the collection of the draft, should have charged appellee’s account with the amount of the draft. The failure of the Bank of Lepanto so to do was the cause of the draft not being paid by the appellee. The Bank of Lepanto was the agent of appellant for the collection of the draft. The failure of the bank to perform its duty by charging the amount of the draft to appellee’s account is chargeable to its principal, the appellant. Therefore whatever loss there was must fall on appellant, and not on the appellee.

Counsel on both sides have cited many authorities, but we do not think it necessary to review them here. The undisputed facts show that the Bank of Lepanto was the agent of appellant, and its failure or neglect to charge appellee’s account with the draft must be chargeable to its principal, the appellant, and the loss caused by the negligent or careless conduct of the Bank of Lepanto ■must fall on the appellant, and not on the appellee. The facts in the case are practically undisputed, and it would therefore serve no purpose to set out the testimony at length. The only question involved is the question as to whether the appellant or appellee should bear the loss caused by the failure of the Bank of Lepanto to charge appellee’s account and remit the amount to appellant.

We have reached the conclusion that the loss must fall on the appellant, and the judgment of the circuit court is therefore affirmed.

Mr. Justice Kirby dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Benton County Lumber Company v. National Surety Company.
    Opinion delivered July 1, 1929.

      McGill ■& McGill, for appellant.

      Warner ¡& Warner, for appellee.
   Mehaffy, J.

Sewer Improvement District No. 1 of Bentonville, Arkansas, entered into a written contract with Carl C. Silver, doing business as the Silver Construction Company, for furnishing all materials and labor in the construction of a sanitary sewer system in the city of Bentonville. The plans' and specifications were attached to the contract, and said plans and specifications with the proposal are, by the terms of the said contract, to become the specific agreement and contract between the 'parties in all matters and things set forth and described.

The price or sum for which the contractor agreed to do the work was $87,090.58. The contract provides for the manner of payment. Thereafter the contractor, as principal, and the National Surety Company of New York, as surety, entered into a bond and bound themselves to the State of Arkansas and the board of improvement of Sewer Improvement District No. 1 of Benton-ville, Arkansas, in the sum of $174,181.16, double the amount of the contract'price, to secure the payment of all the indebtedness for labor and materials furnished in the construction and making said public improvements, and to perform each and every one of the covenants, conditions and agreements set out in said contract.

The appellant brought suit in the Benton Circuit Court against the appellee, National Surety Company of New York, alleging the execution of the bond, which was conditioned as follows: “Now if the principal shall pay all indebtedness for labor and materials furnished in the construction and making of said public improvements and shall well and truly perform each and every one of the conditions, covenants and agreements set out in the contract above referred to, on his part to be performed, this obligation shall be void, otherwise in full force and effect. ’ ’

It was alleged that said bond was never filed in the office of the clerk of the circuit court of Benton County nor approved by the clerk as a statutory bond.

The appellant alleged that it had sold lime, cement and other necessary material, aggregating the sum of $4,116.43, all of which was used in the construction of the said system of sewers and said disposal plant; that Silver had paid on the account $3,414.61, leaving a balance of $701.82, for which appellant has asked judgment. There was no dispute about.the amount of the indebtedness.

The appellee answered, alleging that the appellant had given to' the contractor a receipt and release in full of the amount sued on, and that thereafter the moneys due and owing to said contractor upon said final estimate were paid in his behalf and satisfaction of his indebtedness to the First National Bank and the Benton County National Bank, in the city of Bentonville; that said payments were made in reliance upon said receipt and release given by appellant, and after appellant had represented to the board that the amount had been paid in-full; that appellant is estopped to assert any claim upon said account, and is not entitled to recover from appellee. It alleged that, if appellant was entitled to recover, ap-pellee was entitled to judgment against said banks for the amount of such recovery.

Appellee further alleged that a bond was required and executed pursuant to the said provisions ef the contract and in compliance with the laws and statutes of Arkansas, and said bond was and became a statutory bond. It also alleged that suit had not been brought within six months, and for that reason the cause of action was barred.

The cause was transferred to chancery court by agreement. The case was tried by the chancery court on oral testimony. The court held that the bond executed was a statutory bond, and the liability of the defendant surety company must be determined by §§ 6913 and 6914 of C. & M. Digest of the Statutes of Arkansas; that said bond was never approved by the clerk of the circuit court of Benton County, Arkansas, or filed in his office, as provided by said sections, and that appellant’s action on the bond was filed within five years from the completion of said improvement, but that the cause of action on the bond was barred because not brought within sis months after the completion of the improvement, as provided by said § 6914, and the court dismissed appellant’s complaint.

This appeal is prosecuted reverse said decree.

If the chancery court was correct in holding that the bond was a statutory bond, it was correct in dismissing the case.

Section 6913 of C. & M. Digest reads as follows: “Whenever any public officer shall, under the laws of this State, enter into a contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements, or constructing any public building, or making any repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the State of Arkansas, in a sum not less than double the sum total of the contract, whose qualifications shall be verified, and such sureties shall be approved by the clerk of the circuit court in the county in which the property is situated, conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building, or in making said public improvements.”

Section 6914 provides: “Such bond shall be filed in the office of the clerk of the circuit court in the county in which said public improvement is to be made or such public building is to be erected, and any person to whom there is due any sum for labor or material furnished, or his assigns, may bring an action on said bond for the recovery of said indebtedness; provided, that no action shall be brought on said bond after six months from the completion of said public improvement or buildings.”

The appellant states that it may not he necessary to have the approval of the clerk as to the sufficiency of the security, but it does not admit that this is true, and calls attention to certain authorities. Section 6913 provides that sureties shall be approved by the clerk of the circuit court in the county in which the property is situated. This provision is manifestly intended for the benefit of persons who might have a cause of action on the bond and to protect their interests, and a provision for examining into the sufficiency of the bond and its approval by the clerk was enacted. The surety on the bond in the instant case, however, is a surety company, and, under the law authorizing such companies to do business in this State, it is provided that no such company shall do business in this State unless such company is possessed of $250,000 capital, fully paid in cash, and unless such capital and surplus holdings of said company to the extent of $50,000 is invested in bonds created by the laws of this State or of the United States, or other securities the value of which at the time of said deposit shall be at or above par; which investments are deposited with the Insurance Commissioner and State Fire Marshal, to be held in trust, or are deposited elsewhere for the benefit of all obligees of such company, the surety before mentioned, to which two officers of the company shall certify, and which certificates shall embrace the items of security so held, and shall state that they are satisfied that such securities are worth $50,000. The section further provides that any guaranty or surety companies may execute a bond signed by any other guaranty or surety company authorized to do business in this State, for the benefit of its obligees, in the sum of $50,000, to be approved by the Insurance Commissioner and State Fire Marshal, and filed in his.office, instead of depositing the bonds as herein provided (See 6134, C. & M. Digest). No guaranty or surety company can do business in the State of Arkansas without complying with the laws of the State of Arkansas, and this would seem to be ample protection and make it unnecessary to have the surety examined and approved by the clerk of the county where the improvement is made. The contract itself clearly shows that it was the intention of the parties to execute the bond provided by statute.

In this case the parties entered into the contract which provided, among other things, that the contractor should give a bond as required by the statutes of Arkansas. The statutes of Arkansas require the bond mentioned in § 6913. That section provides that the bond shall be conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building or in making said public improvements. This character of bond was given, a bond provided by the statutes, and it is conceded by the appellant that the bond was made to the State of Arkansas, that it was made in double the amount of the contract price, and conditioned that the contractor shall pay all indebtedness for labor and materials furnished in the construction of the improvement. The only other things required by the statute that was not done was to file the bond in the office of the clerk of the circuit court, as required by § 6914 of C. & M. Digest.

The appellant calls attention to the case of Fidelity & Deposit Company of Maryland v. Crane, 178 Ark. 670, 12 S. W. (2d) 872. The court, however, in that case said, in referring to the case of Rieff v. Redfield School Board, 126 Ark. 474, 119 S. W. 16: “In that case the court held that in the case of a bond given by a contractor to secure school directors, who were held to be public officers, the bond' was executed pursuant to the statute and in obedience to it, and with the intention of complying with its terms, it was a statutory bond, although it did not strictly follow the provisions of the statute. ’ ’

The court in the above case held that the statute did not prohibit sureties from executing a bond expressly limiting its liability to the obligee of the bond, where the bond does not contain any covenant showing that it was intended to be executed in obedience to the provisions of the statute, but, on the other hand, expressly negatives that idea. The court further held that, if there was a covenant showing that it was intended to be executed in obedience to the provisions of the statute, it would be a statutory bond. If the bond was made in an attempt to comply with the statute, and the intention of the parties was to make a bond in accordance with the laws of Arkansas, as they recited in the contract, then the law is a part of the bond.

“The law at the time of the execution of the bond is a part of it; if it gives to the bond a certain legal effect, it is as much a part of the bond as if in terms incorporated therein. Where a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention, it will be presumed that the intention of the parties was to execute such a bond as the law required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute and the construction given to the statute.by the courts. Such a bond must be given the effect which, in reason, must have been intended by the statute. Whatever is included in the bond, and is not required by law, must be read out of it, and whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it. Although the terms of the bond may bear a -broader construction, the liability of the parties will be confined to the measure of liability as contemplated by the law requiring the bond; but it will not be assumed that the legislative enactment intended to import to an instrument an effect different from that intended by the parties.” (9 C. J. page 34).

We think it clearly appears that the parties intended a statutory bond, and it was executed in all respects as required by the statute, except it was not approved by the clerk. Section 6914 does not provide for the making of the bond, but provides that, after the bond is made, such a bond shall be filed. If the bond was made by the parties in compliance with the statute, then the mere fact that they failed to file it with the clerk would not prevent it from being a statutory bond.

.All persons furnishing labor or material or doing work, who are intended to be protected by such statutory bonds, can, before performing labor or furnishing materials, ascertain whether a bond has been given by applying to the owner as easily as by applying to the clerk.

We do not deem it necessary to review the decisions cited and relied on by the parties in this case, because the only question is whether or not the bond in this case is a statutory bond. If it is, of course suit must be brought within six months from the completion of the improvement, and in this case suit was not brought within that time. We think it unnecessary to set out the testimony or te> decide the other questions raised and discussed by counsel. The conclusion reached that the cause of action was barred because not begun within six months makes a decision of the other questions unnecessary.

The decision of the chancery court is correct, and the decree is therefore affirmed.


author: McHaney, J.

text:
    Clifford v. Federal Bank & Trust Company.
    Opinion delivered July 1, 1929.

      Cockrill ■& Armistead, for appellee.
   McHaney, J.

On November 29, 1927, appellant, James A. Clifford, borrowed $7,500 from appellee, for which he executed his promissory note payable March 29, 1928, four months after date. There was attached to this note as collateral certain shares of stock in the Little Bock Hardware & China Company, of which said Clifford was president. Said note contained, among others, this clause: “The undersigned also hereby agrees to give said bank or its assigns such additional collateral as the bank may at any time demand.” Early in March the appellee demanded additional security for said note, as, from an examination of the hardware company’s financial statement, it became convinced that the shares of stock held as collateral were worthless, and in compliance with this demand of appellee, appellants, who are husband and wife, went to the bank, executed and delivered to it a first mortgage on certain lots and a second mortgage on their homestead, same having previously been mortgaged to the Central Bank, as additional security for said note. A short time thereafter appellant, as president of the hardware company, executed a deed of assignment to A. V. Walker as assignee of all its assets, and filed a ¡complaint in the Pulaski Chancery Court,' accompanying the deed of assignment, alleging that it owed debts in a large amount which it. was unable to pay, and owned a large stock' of merchandise which it was unable to turn into cash, and that it was deemed best for all creditors and itself to transfer its assets to an assignee for the benefit of creditors, and prayed the court to take jurisdiction of the matter and enter such orders as might be proper in the premises. Thereafter, on August 17, appellants brought this suit in the chancery ¡court, praying a cancellation of the above-mentioned deed of trust dated March 24, on the ground that there was no consideration for the mortgage, and that the wife did not acknowledge the instrument.

Appellee filed an answer, denying the material allegations of the complaint, and a cross-complaint against appellants, praying a judgment against appellant, James A. Clifford, for $7,500 with interest, and for a foreclosure of the above-mentioned deed of trust.

The court entered a decree dismissing the complaint of the plaintiffs for want of equity, and giving judgment against James A. Clifford for the amount of the note, and decreed a foreclosure of the property covered by the deed of trust, in accordance with the prayer of the cross-complaint.

It is first urged for a reversal of the case that there is no consideration to support the giving of the deed of trust. We think the promise in the note to give the hank “such additional collateral as the bank may at any time demand” is a sufficient 'consideration to support the deed of trust. It was one of the considerations, in lending the money in the first instance, that Clifford promised to give the bank additional security at any time it deemed the security held insufficient. Therefore his promise, made at the time he borrowed the money, to give additional security when demanded, is sufficient consideration to support the security given in this instance.

It is next insisted that Mrs. Clifford did not acknowledge the instrument, or, in the language of counsel for appellant, “that is to say, the notary public who signed the acknowledgment never asked Margaret R. Clifford any questions. She signed the instrument at the instance of her husband and in his presence; without reading it, and at the place he told her to sign. ” It is said that there was no kind of ceremony which would' constitute an acknowledgment, and that there was no privy examination of the wife. The deed of trust was introduced in evidence by appellee, and contains a certificate in compliance with the statute, and in the usual and customary form, signed by a notary public, certifying that the acknowledgment was duly made by both appellants. Both appellants admit that they went to the hank and signed the deed of trust in the presence of the notary. Mrs. Clifford testified that her husband called her up and told her to come down and sign some papers; that she went to the store, and together they went to the bank; that he went back in the bank, and in a short time a lady came in and brought the paper she signed; that her husband signed it and she signed it, and that the notary did not ask her anything at all. Appellants put the notary public on the stand, and she testified that she was in the employ of the bank as a clerk, but she was asked no questions as to what was said or done at the time the acknowledgment was taken.

In Meyer v. Gossett, 38 Ark. 377, this court held that, where there is no appearance before an officer for the purpose of acknowledging the execution of the instrument, and there is in fact no acknowledgment, the officer’s certificate of acknowledgment is false and void; but where there is an appearance before the officer and an acknowledgment of it in some manner, it was held that the certificate of the officer is conclusive of every fact appearing in the icertificate, and that evidence as to what transpired at the time the acknowledgment was taken and certified was inadmissible to impeach the certificate, except for fraud or imposition in obtaining the acknowledgment, where the notice of fraud or imposition is brought home to the grantee. There has been no departure from the rule as announced in this case, but it has been consistently followed since. Donahue v. Mills, 41 Ark. 421; Petty v. Grisard, 45 Ark. 117; Nichols v. Howson, 94 Ark. 241, 126 S. W. 830; Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649; Davis v. Hale, 114 Ark. 426, 170 S. W. 99, Ann. Cas. 1916B, 701; Polk v. Brown, 117 Ark. 321, 174 S. W. 562; Nevada County Bank v. Gee, 130 Ark. 312, 197 S. W. 680; Lawrence v. Mahoney, 145 Ark. 310, 225 S. W. 340; Eads v. Morrilton Lumber Co., 172 Ark. 55, 288 S. W. 1; and Miles v. Jerry, 158 Ark. 314, 250 S. W. 34.

In the last mentioned lease the rule is again announced* quoting the first syllabus: “Where a grantor appears and makes an acknowledgment before an officer authorized to take acknowledgments, the recitals of the officer’s certificate, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated. ’ ’

We think the above cases are conclusive of every question raised regarding the sufficiency of the acknowledgment. Mrs. Clifford appeared before the officer for the purpose of signing and did sign the deed of trust; and, although she and her husband deny that she acknowledged the instrument, yet we cannot say that their testimony is undisputed, as they are parties to the suit. The officer’s certificate is regular on its face, and there is no contention that any fraud or duress was practiced upon her. The certificate of the officer is therefore conclusive of the facts recited therein under all the cases above cited.

We find no error, and the judgment is affirmed.


text:
    Cooper v. Krisch.
    Opinion delivered July 1, 1929.

      A. M. Dobbs, O. M. Young and Hardin 'S Barton, for appellant.
   McHaney, J.

Ethel Krisch, now deceased, held a policy of life insurance with the Southern Life Insurance Company, in which her husband, Charles Krisch, was named the beneficiary. On May 4, 1928, she was murdered by her husband, and some time later appellant was dnly appointed and qualified as the administrator of her estate. He demanded payment of said policy, on the ground that the beneficiary had forfeited his interest therein by reason of the willful murder of his wife. The • insurance company instituted an interpleader ’s suit, making appellant and said Charles Krisch parties, paid the proceeds of said policy into the registry of the court, and prayed that the court determine the respective rights of the parties therein and decree said proceeds to the party rightfully entitled thereto.

Appellant answered, and set up his claim. Charles Krisch filed a disclaimer of any interest in said fund, and consented that same he paid to appellant as administrator. Thereupon the court, on its own motion, ordered that the appellee, Kathryn Imogene Krisch, minor child of deceased, be made a party to the action, which was done, and a guardian ad litem appointed. An answer was filed by the guardian ad litem for said minor, claiming the fund in court a*? the sole heir of her mother, which was sustained by the court, and a decree entered accordingly, and denied the right of appellant, as administrator, thereto.

Only one question is presented for decision: Who is entitled to the proneeds of the policy as between, the administrator and the heir? The administrator is one in fact, and claims have 'been probated against his estate. We think this question has been decided by this court in favor of appellant in the recent case, Inter-Southern Life Ins. Co. v. Butler, ante, p. 349. It was again held in that case that, when the beneficiary in a policy of life insurance unlawfully kills the insured, public policy prohibits a recovery by him, and that the amount of the insurance automatically becomes an asset of the deceased’s estate, to be recovered by the administrator for the payment of debts and distribution to the heirs. See also Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S. W. 836; Henry v. Knights & Daughters of Tabor, 156 Ark. 165, 246 S. W. 17; Mut. Ben. Health & Accident Assn. v. Tilley, 176 Ark. 525, 3 S. W. (2d) 320.

The minor heir was neither a necessary nor a proper party. The probate court will no doubt protéct the interest of the minor in this fund by requiring the administrator to account therefor.

The court therefore erred in not awarding the fund in court to appellant. The cause will be reversed, and remanded with directions to enter a decree in accordance with this opinion.


author: Butler, J.

text:
    Terry v. Little. Terry v. Lemay.
    Opinion delivered July 1, 1929.

      Buebee, Pugli ■& Harrison and McCaleb & McCaleb, for appellant.

      Cunmngham & C'umñngham, for appellee.
   Butler, J.

The cases named in the caption were consolidated in the circuit court for the purpose of trial, and, as consolidated, have been brought to this court on appeal. For convenience this court mil consider first case, No. 1020, W. E. Lemay and A. D. Little v. E. L. Terry and Southern Surety Company, the defendants in the court below being the appellants here.

E. L. Terry was engaged, in the year 1927, as a general contractor, in building certain roads between Alicia, Arkansas, and Tuekerman, Arkansas. A. D. Little was emplo}ed as subcontractor on said road, and did certain dirt work in building a dump, and also did some day work on the road. The Southern Surety Company was the surety on the bond of E. L. Terry, and obligated itself, by the terms of the bond, to insure the payment of the work and material done or furnished.- "W. E. Lemay seems to have been engaged in furnishing supplies to the subcontractor, A. D. Little, and to other subcontractors, and in the case of Little there was an agreement between Little, Lemay and Terry that the latter was to pay to Lemay the amounts due Little, and Little executed an assignment of tlm amount due him to Lemay. After the completion of the work which Little had agreed to do, Lemay and Little brought suit against Terry and his surety, the Southern Surety Company, for the balance alleged to be due of $859.04, and incorporated in their c omplaint the following statement:

“Balance yardage not paid for in June.-.....$125.00
Yardage held back, 2,041 yds. at 20c.. 408.20
2,500 yards at 2e extra.-. 50.00
Overhaul, 6,832 yds., at 2c. 136.64
Ten per cent, extra for completed work. 132.40
Team and wagon without driver, 30 hours. 7.50
Total ..$859.04”

The defendant Terry moved the trial court that the plaintiffs be required to file an itemized and verified account, alleging that the statement filed was insufficient in that it failed to show each separate item of work claimed to have been done or material furnished, the dates of same, et cetera. The court overruled the motion, to which action the defendant excepted. The defendant Terry then filed a demurrer to the complaint, which was overruled, and thereupon he filed his answer, and motion to transfer the case to the chancery court. The motion to transfer to chancery was overruled, and the case was submitted to the court sitting as a jury, who, after having heard the testimony, rendered judgment in favor of the plaintiff for the sum of $7.50 against the defendant Terry and for an additional stun of $560.56 against the defendants E. L. Terry and the Southern Surety Company.

The appellants, as ground for reversal, insist that the court erred in refusing to require appellees to file an itemized and verified account of the claim sued on, and also that it was error for the court to refuse to transfer the case to equity, and because the court allowed judgment for the item of $125 for “balance of yardage not paid for in June.”

The court is of the opinion that the statement of the items in the complaint was sufficient, and that no additional information was necessary to apprise defendants of the nature of plaintiff’s claim, especially because the very information sought was at their command (Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027), and that there was no such involved or complicated account as would make a transfer to chancery and the appointment of a master necessary. Cherry v. Kirkland, 138 Ark. 33, 210 S. W. 344; McGraw, Perkins & Webber Co. v. Yates, 175 Ark. 298, 298 S. W. 1001. The evidence, while confused and unsatisfactory, was sufficient to show that there was practically no dispute as to the amount and character of the work done or the price agreed upon, the question being whether the work on the Little contract was paid for; hut the appellees do not challenge the sufficiency of the testimony. From the judgment rendered it is evident that the court reduced the amount of plaintiff’s claim, and we are unable to determine what particular item it rejected, so that it might have been that the item of $125 for “balance yardage not paid for in June” was the item excluded. But, even if that were not the case, the complaint was treated as amended to conform to the proof, and there is no allegation of surprise or request for any continuance to meet the change in the issue, so that, in any view of the case, the appellant’s third ground for reversal must be rejected. The conclusion of the court is that no reversible error was committed, and that the finding and judgment of the trial court should be and the same is hereby in all things affirmed.

We next consider case No. 1019, E. L. Terry and Southern Surety Co. v. W. E. Lemay. For his cause of action W. E. Lemay, in his original complaint, alleged .that the defendant Terry was a general contractor, building State Road No. 67 between the towns of Swifton and Tuckerman, in Jackson County, Arkansas, and that the defendant employed the teams of plaintiff, known as “three-up teams,” at the rate of 75 cents per hour per team for 417 hours, and that he was due for this the sum of $3.12.75, which was past due and unpaid. The defendant Terry moved the court to require the plaintiff to file an itemized and verified account of the claim sued on, wliic.li motion was overruled, and exceptions duly saved by the defendant.

After cases No. 1019 and 1020 were consolidated, the plaintiff Lemay in this case filed an amended complaint making- the same allegations as in his original complaint, with the*addition of the words “and drivers” after the words “three úp-teams,” and also alleged that the Southern Surety Company was hound on its bond for the payment of this item, and exhibited a copy of the bond with his amended complaint. To this amended complaint the defendant Southern Surety Company demurred, and it and the defendant Terry filed their separate answers. Upon the issues thus joined the case was submitted to the court sitting as a jury, and a judgment was Tendered in favor of the plaintiff and against both defendants for the sum sued for.

It is urged on the part of the appellant Terry, first, that the court’s refusal to require the appellee to file an itemized account, duly verified as required by law, was prejudicial error, and cites the case of Brooks v. International Shoe Company, 132 Ark. 386, 200 S. W. 1027, in support of his contention. The accounts in the Brooks case and in the instant case are essentially different. In the Brooks case the account was for merchandise, and contained a number of debit items, presumably for the gross amount of invoices, without setting out the different items; and in .the case at bar what is called an account by the appellant is the following statement: “This is to certify that W. E. Lemay has made team time to the amount of 417 hours between October 21 and 31, inclusive, three-up teams, at 75e per hour. This amount is due today for work on Cat-tail road. (Signed) F. M. Eason, foreman and time-keeper.” As stated in Brooks v. International Shoe Co., supra, “the word ‘account’ is said to have no inflexible, technical meaning, and is differently construed according to the connection in which it is used. However, ‘in mercantile transactions it is invariably used in the sense of a detailed or itemized account.’ In that case the rule in Sutherland on Code Pleadings, vol. 2, § 2297, was quoted with approval and is as follows: ‘The items of the account furnished must be set forth with as much particularity as the nature of the ease admits of. A hill of particulars is sufficiently specific if it apprises the opposite party of the evidence to be offered’.”

In the instant case it is evident that Lemay had no information relative to the work done except such as was furnished him by the foreman and time-keeper, so that it was stated with as much particularity as the nature of the transaction would admit, and the party called upon to account is not subjected to the necessity of doing an impracticable thing. Inasmuch as the statement which is the basis of this suit was made by the foreman and timekeeper, it was sufficiently definite to apprise the opposite party of the evidence to be offered, so the court is of the opinión that the ease cited by the appellant settles the first assignment of error against him.

Appellant Terry insists, as a second ground for reversal, that there was such a variance between the pleadings and proof as would preclude any recovery by the plaintiff; that the proof shows that Lemay had no right to maintain the action because, if anything was due, it was due to one Little, and, before recovery could be had, Little must have been made a party. The facts are undisputed. Little was the owner of the teams, and had given a mortgage to the appellee Lemay covering them, and, after having completed certain work, he became sick and could not take care of the teams. He turned them over to Lemay, who put them in his pasture and fed them for some time, when Little discovered they could be hired out, and so told Lemay. Lemay sent Little with the teams to the place where the work was to be done. They were put to work, and it was recognized by the contractor that, for the purpose of that transaction, they were Lemay’s teams, for the statement is demonstrative of that fact. Leimay was the mortgagee in possession, and it was immaterial whom he sent with the teams to their place of work, whether Little or any one else, for the person so sent wonld he merely the agent of Lemay for that purpose. It was unnecessary to make Little a party, and the oases cited are not in point.

The third assignment of error which is pressed in the brief of appellant is that, nothing having been said in the original complaint about any drivers in charge of the teams, it was error for the trial court, over the objection and exception of the defendant, to allow the complaint to be amended during the course of the trial to show that the wages of the drivers were also included in the sum of $312.75 claimed to be due. It may be said, as a matter of common knowledge, that mules do not drive themselves, but it is necessary for some one to be present to control and direct their work, and when the expression “teams” is used and a price per hour has been charged for the use of such teams, this price includes the work of the man as well as the animals. Also the expression “up-teams,” among those who do contract. work, such as building roads or levees, has a well-recognized meaning, and includes the animals and the driver. But, if we should be wrong’ in this assumption, still appellant is in no attitude now to complain, for he does not appear to have been surprised or taken off his guard, as he made no request for a continuance of the case in order to meet the additional allegation of the amended complaint. There is competent testimony to sustain the finding of the court, for it is shown by Little’s testimony that the mules were put to work, and Lemay’s testimony shows that he took charge of the teams and sent Little to get a job and put them to work to help pay for their feed, and received from the foreman and time-keeper of the appellant a certificate showing that the work was actually done.

The next question presented in this case is the liability of the Southern Surety Company. It contends that there should be no judgment against it, even though the court should hold that a judgment against Terry should stand, for it claims that there was an oral assignment of the account in this case by Little to Lemay, and that, as Little was a necessary party, no judgment can go against the defendant surety company. We have sufficiently answered this question above.

The question as to whether the appellant surety company is liable under the terms of its bond for the item sued for is the serious one in this case upon which the court is divided. The appellant relies upon the case of St. L. I. M. & S. R. Co. v. Love, 74 Ark. 528, 86 S. W. 395, and the case of Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6. The majority of the court are able to distinguish between the instant case and the cases above cited. There is a difference in the verbiage of § 8555 of Kirby’s Digest, construed in the case of Railway v. Love, supra, and that used in the ¡bond executed by the appellant company. In the first there is a lien declared in favor of any person ‘ ‘who shall do or perform any work or labor, or cause to be done or performed any work or labor upon, or furnish any materials, machinery, fixtures, or other things, toward the building, et cetera, of the railroad, * * * and every person who performs any work of any kind in the construction or repair of any railroad * * * shall have a lien,” et cetera. The court had in mind and construed that paragraph which reads “or furnish any material, machinery, fixtures, or other things toward the building,” et cetera, and held, under the rule ejusdem generis, that mules were not included within the terms of the statute, as the words, “or other thing's,” in the statute had reference to similar.things as those denoted by the preceding words. It will be noted that the bond in the instant case is framed in different language from that of the statute supra, the condition being that the surety ‘ ‘ shall pay all bills for material and labor entering into the construction of said work, or used in the course of the performance of the work.” This bond follows the language of § 67 of act 5 of the Special Acts of 1923, known as the Harrelson Koad Law. The words used in that statute regarding the bonds to- be executed are as follows: ‘ ‘ Shall contain conditions making it (the contractor) liable for material and labor used in the work.”

This act was not expressly repealed by act No. 11 of the Acts of 1927, as § 6 of that act, in speaking of the bonds required, used the following language: “Conditioned as the commissioners may require. ’ ’ As the bond in question was filed with the State Highway Commission, it is evident that the conditions it was then requiring were those stated in the Harrels-on Act, and the word “used” is of much broader import than any contained in the section of the Digest mentioned. It connotes any means employed for the accomplishment of a purpose and the- employment of any instrumentality fitted for its performance, so that, as teams of mules are necessary, under conditions as they now exist, for the construction of highways, the majority of the court has concluded that the language of the 'bond quoted is broad enough to bring the up-teams used on the highway within its conditions, and for that reason the case from 74 Ark. cited above by the appellant is not in point. The instant case may be distinguished from the 'case of Goode v. Ætna Casualty & Surety Co., supra, for in that case the question involved was whether the surety on the bond was liable for feed furnished for the stock used in the work on the highway, while in this case the appellee seeks to recover not only for the labor of the mules, but also for that of the drivers. The laborers’ lien statute, providing that “laborers who perform work and labor on any object, material, or property, shall have an absolute lien on such object,” etc. (§ 6864, C. & M. Digest), has been held to give a lien on property where one used a wagon and team actually driven by the one who files the claim for labor. Klondike Lumber Co. v. Williams, 71 Ark. 334, 75 S. W. 854. It follows that the trial court was correct in its judgment, both as to the defendant Terry and the defendant Southern Surety Company, and the judgment is therefore affirmed.

As to the Southern Surety Company, the Chief Justice, Mr. Justice Smith: and the writer think no proper distinction can he made between this case and St. L. I. M. & S. R. Co. v. Love, 74 Ark. 528, 86 S. W. 395, and Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6, by which this ease should be ruled, and they therefore dissent from the majority decision.


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    Lakeside Bridge & Steel Company v. Duvall.
    Opinion delivered July 1, 1929.

      J. B. Ward, for appellant.

      Edward Gordon and Robert Bailey, for appellee.
   Butler, J.

The appellant, Lakeside Bridge & Steel Company, was engaged in constructing a nine-mile section of Highway No. 105 north from Atkins, and this suit was brought against it by the appellee, Duvall, for damages for alleged breach of contract, and a verdict was rendered in his favor for the sum of $500. The evidence was to the effect that he had made an oral contract with one B-ay Hundley, who he alleged to be plaintiff’s superintendent, by which he was given the contract to haul sand, rock, cement, and other materials to be used in the construction of the road from Atkins to station No. 512, a distance of about nine miles, and also was given the contract to haul the feed for the teams of the appellant company and the oil to be used in the company’s operations on that road; that the price he was to be paid for hauling the materials was to be ten cents per hundredweight from Atkins to a place called Gumlog, located about station No. 22'2, and was to receive for the material hauled beyond that and across Isabelle Creek to and including station No. 512 the price of fifteen cents per hundredweight; and he sublet the contract for hauling the material to Gumlog from Atkins to W. S. Liles and Tom Johnson. These parties were to haul from Atkins to station No. 126, at three cents per hundredweight and from station No. 126 to station No. 222, or south of Gumlog from Atkins, at five cents per hundredweight, giving appellee a profit of seven cents per hundredweight on the nearer haul and five cents per hundredweight on that from station No.. 126 to station No. 222.

The testimony was that the contract was made first by Liles, and that Hundley, who was in'charge of the construction work, informed him that Liles had declined to carry out the contract, and offered it to appellee. There was some discussion as to the price to be paid for the hauling, hut Hundley, after a consultation with Mr. Kelly, the general foreman of the work, agreed upon the prices above stated — that is, ten cents per hundredweight from Atkins out to Isabelle Creek and fifteen cents per hundredweight north of Isabelle Creek. There was no written contract entered into. Appellee proceeded with his own teams to haul north from Isabelle Creek, and completed the hauling of material, and was paid for same, hut, at about the time his subcontractors began to haul, the appellant company put its own teams and trucks on the shorter hauls, and refused to permit the appellee’s subcontractors to do the work. According to the evidence for the appellee, all of the material was to be delivered by the appellant company at Atkins, and appellee was to haul it from Atkins to the end of the road.

The court, in submitting the case to the jury, made the following declaration of law in instruction No. 2:

“The court tells you that as a matter of law Hund-ley, under the testimony in this case, was not authorized to malee the character of contract that the plaintiff contends he did make with him, but that plaintiff contends that, even if Hundley did not have that authority, the bridge company knew that Hundley had made a contract giving him the exclusive privilege and right to do all of this hauling. And the court tells you that is the principal question for you to decide in this case. If the bridge company knew that Hundley, as their foreman, had — •although he didn’t have authority — if they knew that he had made that contract and they went on and performed parts of the contract under it, after they had knowledge that such a contract was made, the court tells you that they would be bound by the contract if they knew that Hundley had made it and went ahead and recognized the existence of the contract.”

The 'appellant contends that there was no proof to support the allegations in the complaint relative to the items $217.30 for hauling feed and $120 for hauling oil, and on two items for hauling gravel used in bridges, $287.27 and $166.35. We think that the appellant’s contention in these particulars is correct, and that there was no substantial testimony as to amount of feed or oil used in the work or the amount of additional gravel used in bridges. As to the feed, the most that is shown by the testimony is that there were about nine sacks a day used in feeding the teams, but there was no evidence as to how long the teams were used and fed on the work nor any testimony to warrant the jury in arriving at the amount of the oil used or additional gravel, and it is evident that these items were not considered by the jury, because its verdict was for much less than the damage claimed, and less than what it might have found as damages for loss of profit on the gravel and sand hauled.

It is next contended that there is no evidence sufficient to establish with any reasonable degree of oertainity the amount of sand, gravel and cement used on the road from Atkins to station No. 222 at or about G-umlog, because appellee did not know how much rock, sand, or other material he had hauled — that he didn’t keep any account of it. However, there is no contradiction as to his having hauled all of the material north of Isabelle Creek to station No. 512, the end of the road, or that he was.paid for it.

Watkins Hall, connected with the State Highway Department, testified in the case, and made an estimate of the quantities of material used on the highway running north from Atkins, known as No. 105, and attached to his testimony an exhibit showing the quantities of sand, gravel and cement used in the construction of the road, and also showed the amount of these materials that were used from Atkins to station No. 222, the total aggregate weight being 3,369,900 pounds, and it was this material that was to ¡be hauled for the appellee by Liles and Johnson, to whom he had sublet his contract for that part of the haul. The testimony of Hall is nowhere contradicted, and it is evident from his testimony that he Lad first-hand knowledge regarding the matters about which he testified. So, if the appellee did have a contract with the appellant, he would be entitled to his profit on the haul from Atkins to station No. 222. According to his statement, his profit would have been three cents per hundredweight from Atkins to station No. 126 and five cents per hundredweight from station No. 126 to station No. 222, but there is no testimony that we have been able to discover that would indicate just what proportion of material was hauled at a profit of three cents and how much was hauled at a profit of five cents per hundredweight to the appellee. The only way by which these amounts could be ascertained would be upon the assumption that the same proportionate amount of material was used between each station, but this assumption has no evidence to support it, and there is no warrant for the inference that the road was of the same width at every station or that the same amount of material was used. But, as appellee would have been entitled to as much as three cents per hundredweight profit for the whole amount used, if he is entitled to recover at all, the jury would have been warranted in figuring his profit on that basis, which would be in excess of its verdict.

The most serious question, however, which presents itself for our consideration is whether Hundley and Kelly, or either of them, were clothed with apparent authority to make the contract, and, if they were not, did the appellant company ratify the contract? In considering this question it is proper to take into consideration all of the ’circumstances surrounding the transaction. The president of the appellant company, S. C. Codding-ton, stated that Hundley had no authority to enter into a hauling contract for sand and gravel, as all such contracts are required to be in writing, and any contracts that are spread over any length of time must be in writing, and a bond is generally required, and that neither Hundley nor any other employee of the company had authority to enter into an oral contract or any other kind of contract so as to bind the company. But lie nowhere testified that Hundley did not make the contract, and there is no other testimony disputing that fact.

Bussell Weil testified that he was the Arkansas manager of the appellant company, which had a contract for the construction of a bridge over the Arkansas Biver at Dardanelle; that, as such Arkansas manager, he had no authority 'to make any contracts at all except for what the company termed “unit contracts” — that is, contracts for buying gravel or sand at so much per cubic yard, or on hauling so much per trip, or so much per ton — and if there was a longer contract made it would have to be ratified by Mr. Coddington or some officer of the corporation, and all contracts, even for the purchase of a pound of nails, would have to be in writing; that Hundley was construction foreman on the road work, and was authorized to hire and fire on the unit basis; that Mr. Kelly was in charge of the road work, and had authority over Hundley.

It is apparent from all of the testimony that Kelly and Hundley, acting under Kelly, had entire charge of the construction work on the road; and, while Codding^ ton and Weil say they had no authority to make any contract except on the unit basis — that is, so much per day, or so much per load — .they did in fact make all of the contracts for clearing the right-of-way and for hauling the material. Kelly had authority to sign checks, and did sign them, and Kelly and Hundley had authority to have the right-of-way cut, and that contract was made with the appellee, Duvall, and Coddington, the president of the appellant company, states that he does not think it was a written contract, but that contracts for clearing or grubbing could be terminated at any time. There is no testimony to show that Coddington had any active supervision over the road work, and Weil states that he had none; but Coddington testified that he was over on the road several times. Liles testified that Kelly had contracted with him to haul material out on the highway, and told him he would write up the contract and leave it at a certain place and time, hut it was never signed, and he (witness) concluded he could not make anything- out of the contract to haul at ten cents per hundredweight clear to the end of the road, and gave up the contract. When it became apparent that Liles had abandoned his contract, Hundley approached Duvall regarding the same, and, after some negotiation, informed Duvall that he had authority from Mr. Kelly to make the contract, and that when Kelly came back they would enter into a written contract, but no contract was ever written, and appellee went to work immediately after the verbal contract was entered into. Kelly himself talked with the appellee regarding the contract for hauling material, and knew all about its execution. Kelly also told appellee that whatever Mr. Hundley did on the job was all right, and Hundley was in charge of the work when Kelly- was not there. All of the witnesses testified that it was Hund-ley or Kelly who made the contracts, did the hiring and firing, and it seems, so far as those who did the actual work are concerned, there was no one known to be in charge of the operations except Hundley and Kelly.

The evidence shows that appellee completed, with his own teams and labor, a considerable portion of the hauling, and all of that which lay beyond Isabelle Creek, which was the longest haul and over the worst road, and that on this part of the.work he lost about $600, while the haul from Atkins to Gumlog or station No. 222 was over a much better road and a much shorter haul, and that was the reason appellee was able to sublet the contract for that haul for a lesser amount than he had contracted for. As -appellee had completed the long haul over a difficult road, when his subcontractors were preparing to haul material on the shorter and better haul, appellant ceased delivering material to Atkins and began procuring it at other places and transporting it to the points where it was to be used with its own equipment. We think that the circumstances of this case were sufficient to submit to the jury the question of the apparent authority of Hundley to enter into the contract with the appellee, and the instruction heretofore quoted, given by the trial court, was more favorable to the appellant than it was entitled to.

This court, in the case of Ozark Mutual Life Assn. v. Miller, 169 Ark. 136, 273 S. W. 378, on the question of apparent authority, laid down the following rule: “Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing, or such authority as he appears to have by reason of the actual authority which he has, and such as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. ’ ’ The same rule was stated in the case of Hal H. Peel & Co. v. Hawkins, 175 Ark. 806, 300 S. W. 420; and in the case of Three States Lumber Co. v. Moore, 132 Ark. 371, 201 S. W. 508, the court said: “'One dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority coextensive with its apparent scope, and that an agent acting within the apparent scope of his authority, though in violation of specific instructions, may bind his principal in dealing with one who has no notice of the restrictions upon the agent’s authority.” On the authority of these cases, when applied to the facts hereinbefore stated, it is clear that there was some substantial testimony tending to establish the apparent authority of Hundley, and this question should have been submitted to the jury.

There is evidence that the appellant company knew that the appellee; Duvall, was engaged in hauling material, for he began hauling around the 10th of January, 1928, and continued to haul through the winter and for a considerable period of time, during all of which time the appellant company knew that he was doing the work, and, when he had completed the delivery of the material from Isabelle Creek to the end of the road, the appellant company bad received the benefit of that portion of the work which would have been most expensive to it, and for which it had procured the appellee’s services under the belief that he would have the work on the shortest haul and less expensive portion of the road. There is some evidence tending to show that the appellant was sufficiently acquainted with the nature and scope of appel-lee’s work and that it received such benefit from that work as would warrant the submission to the jury of the question of the ratification of the contract, even though it had been unauthorized and made by one who had no apparent authority.

It is well settled that a principal who accepts the benefits of an unauthorized act of a reputed agent cannot afterward deny the agency. Daniels v. Brodie, 54 Ark. 216, 15 S. W. 467; Coffin, v. Planters’ Cotton Co., 124 Ark. 360, 187 S. W. 309; Froug, etc. Co. v. Outcault Advertising Co., 114 Ark. 9, 168 S. W. 1075.

It is true, ordinarily, in order that the principal will be deemed to have ratified the unauthorized acts of an agent, he must have had knowledge of all material facts, and ignorance of such facts will render an alleged ratification ineffectual; but, where a benefit accrues'to the principal from the unauthorized acts of his agent, then he is charged with such knowledge, if, from all of the circumstances in the case, he knew or could have known the purposes and intentions of his agent and the persons with whom such agent was acting. Pharr v. Southern Arkansas O. & G. Co., 152 Ark. 567, 240 S. W. 407.

In this case it was admitted that Hundley and Kelly were the agents of appellant company and clothed with a limited authority in the prosecution of the work over which they had charge, but this limitation was not known to the appellee. Nowhere do the officers of the appellant company say that this contract was entered into without their knowledge, and it is clear that Codding-ton, president of the appellant company, knew that a material part of the work and the most difficult and expensive part was being performed by the appellee Duvall. In the light of these circumstances, it was clearly a question for the jury as to whether or not the appellant had ratified the acts of its foreman. Kerby v. Road Imp. Hist. No. 4, 159 Ark. 201, 251 S. W. 356.

As has been stated, the error committed by the trial court was not such as was prejudicial to the appellant company. First, the testimony is undisputed that there was a contract entered into; second, there is some substantial testimony to show that Hundley had apparent authority to make the contract; third, that it was ratified; and fourth, that the evidence shows with a reasonable degree of certainty that the appellee was entitled to damage in an amount equal to the verdict.

The judgment must therefore be affirmed.


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    Knight v. State.
    Opinion delivered July 1, 1929.

      Sam M. Levine and E. W. Brockman, for appellant. Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Butler, J.

Robert Knight, the appellant, was indicted by the grand jury of Jefferson County on a charge of grand larceny 'committed, as it is said,- by stealing an overcoat, the property of J. F. Mullins. He was tried upon this indictment, convicted, and sentenced to serve one year in the State Penitentiary. He seeks to reverse the verdict and judgment, first, because of the court’s refusal at the close of the testimony to direct a verdict of not g’uilty on the theory that, if any crime was committed, it was false pretenses and not larceny; and second, for .error of the court in giving the following instruction:

“If you believe from the evidence in this case beyond a reasonable doubt that the defendant, in Jefferson County, Arkansas, and within three years prior to the filing of the indictment, by fraudulent artifice obtained from Wilks & Webb an overcoat of the value of more than $10 and the property of J. F. Mullins, and that at the time the property was obtained you also believe from the evidence beyond a reasonable doubt that he obtained it and carried it away with the felonious intent to steal it, you will convict him of the crime of grand larceny as charged in the indictment.”

Wilks & Webb, a firm engaged in the clothes cleaning business in Pine Bluff, had an overcoat of J. F. Mullins in their possession for the purpose of cleaning and pressing it. Mrs. Lower.y, who was employed by the cleaners, testified that appellant called for some clothing which he had previously left at the cleaning shop' and at the same time asked for and obtained the overcoat of J. F. Mullins, paid the charges on Mullins ’ coat, and left the shop with it. Appellant is a negro man, and the first time the witness ever saw him was when he called for the Mullins overcoat, but she identified him as the same person as the one Robert Knight, who had been indicted by the grand jury.

W. M. Wilks, a member of the clothes cleaning firm, stated that he was present when Robert Knight came to his shop and obtained the Mullins overcoat; that he knew Knight when he saw him, and that Knight, at the time he obtained the coat, paid the charges, and asked for the ticket so that he (Knight) would know what to collect for it from Mr. Mullins. According to the witness, Mullins ’ overcoat was worth about $50. Witness stated positively that it was the defendant who had got the coat.

Mrs. Mullins, the wife of 'J. F. Mullins, testified that she had sent her husband’s overcoat to the cleaner; that she did not know the defendant, Robert Knight, and did not send him for the coat. At the time the coat was sent to the cleaner and taken away by the defendant, Mullins was away from home.

The defendant, testifying in his own behalf, stated that he did not get the overcoat from the cleaning shop but that he sent another young negro to the shop for the clothing that he, himself, had left there, and that this boy brought him the clothing he had been sent for, but no other. Defendant stated that he did not sign for the clothing, as testified to by Mrs. Lowery, and that he could neither read nor write; that he did not know either Mr. or Mrs. Mullins.

The defendant contends that the evidence was not sufficient to identify him as the person who had obtained the overcoat, and, if it was sufficient for that purpose, it was insufficient to establish the crime of larceny. To sustain this contention he cites the case of Haley v. State, 49 Ark. 147, 4 S. W. 746, in which case the following- language was used: “Where by fraud, conspiracy, or artifice the possession is obtained with felonious design and title still remains in the owner, larceny is established. Where title, as well as possession, is absolutely parted with, the crime is false pretense.” We think that an application of the law stated in the case cited to the facts proved in the case at bar establishes the correctness of the court’s refusal to direct a verdict for the defendant and warrants the giving of the instruction set out above. The ownership of the property stolen was laid by the allegations of the indictment in J. F. Mullins, and Wilks & Webb were entitled only to the possession and control of the overcoat for the purpose for which it was deposited with them, and could not have parted with the ownership of Mullins. Moreover, the evidence shows that they did not intend, by giving the defendant the coat, to invest him with its ownership, bnt thought, by reason of the false artifice of defendant, that he had been constituted the owner’s agent for the purpose of getting the coat and conveying it to the owner. It is clear therefore that the title remained in J. F. Mullins and possession of the coat was obtained by the defendant through artifice with a felonious design and that it was his intention to carry away and steal it.

The defendant cites a number of other decisions of this court in line with the case of Haley v. State, supra, which, as stated in our application of that case to the evidence in this case, are clearly against his contention. The defendant went to the cleaning and pressing shop and obtained therefrom the overcoat by falsely pretending that he had been sent for it by Mrs. Mullins, the wife of the owner of the coat. Wilks & Webb, the cleaners, had no authority to deliver the coat to defendant and no property passed to him, but the mere possession, feloni-ously obtained, which is the essence of the crime of larceny. It follows that the trial court correctly declared the law in giving the instruction objected to, and the verdict of the jury was justified under the evidence adduced on the part of the State. The judgment is therefore affirmed.


author: Per Curiam :

text:
    Edmondson v. Bourland.
    Opinion delivered July 8, 1929.

      Joseph R. Brown, James B. McDonough, and Robert M. Zeppenfeld, for petitioner.
   Per Curiam :

This is an original petition for mandamus by Margaret Agnes Edmondson against Hon. J. Y. Bourland, as judge of the Sebastian Chancery Court for the Fort Smith District, to compel him, as such chancellor, to allow her to file an answer and cross-complaint in an action pending in said court, and to file a motion to set aside an appointment of a guardian ad litem for her as an insane person.

The record shows that Francis A. Vaughan, as executrix and trustee of the will of Thomas W-. Edmondson, deceased, brought suit in said chancery court to construe said will and to terminate the trust. It was ordered by the chancery court that Margaret Agnes Edmondson, widow of said decedent, be made a party to the suit, to the end that her interest, if any, in said estate be adjudicated. It was claimed that she had elected to take dower in said estate, and had filed her renunciation under the will when it was admitted to probate. She had been judicially declared insane, and a guardian had been appointed for her by the probate court of Sebastian County for the Fort Smith District. A guardian ad litem was appointed for her in the suit to construe the will. Margaret Agnes Edmondson, who is now a resident o>f St. Louis, Mo., through attorneys of her own selection, filed a motion in said chancery, court to set aside the appointment of a guardian ad litem for her as an insane person. The court refused to let her attorneys file said motion, and also struck from the files of the court an answer and cross-complaint of said Margaret Agnes Ed-mondson, which had been filed a few days 'before by her said attorneys, on the ground that her defense to the action could only be made by the guardian ad litem appointed by the court. The court refused to let the attorneys selected by said petitioner file an answer or cross-complaint for her. Said petitioner alleges that the order adjudging her to be an insane person is not a valid order; that she is not now an insane person.

Under these circumstances mandamus is a proper remedy. While it is well settled that a writ of mandamus will not be allowed to control the judicial discretion of a trial court, or to require a judicial tribunal to act in a particular way, there are limitations to the rule, and it may sometimes be employed to prevent irreparable injury, as where the remedy by appeal is inadequate. 38 C. J., pp. 608-609.

It is plain that the propriety of the writ must be determined for each case upon its own peculiar merits. In the application of the principle in Ex parte Watters, 180 Ala. 523, 61 So. 904, the Supreme Court of Alabama held that the erroneous refusal of the trial court to allow an amendment to the complaint may be corrected by mandamus, but that the erroneous allowance of an amendment cannot be reviewed by such proceeding. The court said that the basis for the distinction must be found in the varying degrees of injury from the respective errors, each being equally redressible on appeal. See also Ex parte Uppercu, 239 U. S. 435, 36 S. Ct. 140.

In re Conoway, 178 U. S. 421, 20 S. Ct. 951, the court had under consideration a petition for a writ of mandamus to the judges of a circuit court of the United States. The petition for a writ of mandamus alleged that the circuit court had set aside the service of summons on a defendant because the action had abated by his death, before the service of process upon him, and because the circuit court acquire none over his executor. In the Supreme Court it was objected that mandamus was not the proper remedy, because it was not a case in which the court refused to entertain jurisdiction. It was claimed that the action was still pending in the circuit court, and would doubtless proceed to final judgment. The Supreme Court said that there could be no final .judgment against the original defendant, for he was deceased, and none against the executor, as to the estate he represented, because he had not been made a party to the action. Consequently .the Supreme Court said that, if the ruling of the circuit court was erroneous, its judgment could not be redressed by appeal, because there was no one to appeal.

So here the petitioner alleges that the order of the probate court adjudging her to be an insane person was not a valid order, and that she is not now insane. She is claiming an interest in the property embraced in the will, and would not be able to appeal from an ad-‘ verse judgment if she is not allowed to appear by counsel of her own selection.

The court should allow her to appear by counsel of her own selection, and can still protect her interest by appropriate orders if it shall deem her to be insane. The proceeding is not to control the chancery court in its exercise of a judicial discretion, nor to compel it to rule in a particular way in the trial of the cause, but to prevent an abuse of the discretion of the court. Under the facts stated, the action of the court, so far as the rights of petitioner are concerned, amounted to a refusal to proceed with the case, through an erroneous determination of a preliminary question of practice or procedure. In other words, the action of the court amounted to such an abuse of discretion as that it may be said to have been arbitrary. State v. District Court, etc., 38 Mont. 166, 99 Pac. 291, 35 L. R. A. (N. S.) 1098; and High on Extraordinary Legal Remedies, § 151.

We think mandamus was the proper remedy, and direct a writ to issue commanding said chancery court to proceed in accordance with the views herein stated. It is so ordered.


author: Hart, C. J.,

text:
    Blackwood v. Welch.
    Opinion delivered July 8, 1929.

      Hal L. Norwood, Attorney General, and Claude Duty, Assistant, for appellant.

      Robinson, House, S Moses and Frank Bird, for appellee.
   Hart, C. J.,

(after stating the facts). At a special session held in 1923 the Legislature of the State of Arkansas passed act No. 5, creating the State Highway Commission and prescribing the duties thereof. Special Acts of 1923, p. 11. The act was approved October 10, 1923, and contains eighty-five sections. Section 36 of the act deals with the subject of the registration and licensing- of all motor vehicles. Subdivison e of the section reads as follows:

“The rate to be charged for motor vehicles used for the transportation of 'freight and property for hire shall be one and one-half the amount herein specified for trucks.”

This act was amended by act No. 65 of the Genera] Assembly of 1929, which act was approved February 28, 1929. Subdivision e of § 24 of said act No. 65 is exactly the same as subdivision e of § 36 of act No. 5 passed by the Legislature of 1923.

The plaintiff paid the license fee assessed under said act against motor vehicles of private owners when such vehicle is not used in the transportation of freight and property for hire. The plaintiff did not use his automobile for any other purpose than carrying the United States mail over his route as above designated.

The defendants, who composed the State Highway Commission, and the sheriff of Faulkner County attempted to collect the fee provided by the statute above referred to, which is charged for motor vehicles used for the transportation of property and freight for hire.

Counsel for the defendants especially rely upon the case of State v. Willis, 116 Wash. 387, 199 Pac. 749, 18 A. L. R. 1163, where the Supreme Court of the State of Washington held that one contracting- to transport United States mail was not absolved from the duty of obtaining State licenses for ‘motor vehicles used in the business. Willis in that case was charged with unlawfully using a motor truck on the public highway, without first obtaining a license as required by the statute. Willis had entered into a written contract with the United States, Avhereby, for a certain consideration, he agreed to carry the United States mail in the city of Seattle between the various depots, postoffice and substations therein. In carrying out his contract he used various motor trucks, including the one which he was accused of operating without first having obtained a license. The court held that Willis was a personal contractor, doing certain work for the Government at a stipulated compensation, and was in no sense a representative or agent for it.

We do not consider that that case has any application whatever under the facts stated in the case at bar. The plaintiff was appointed under the postal laws and regulations of the United 'States. Section 718, which we have copied in our statement of facts, expressly provides that such rural carriers shall be appointed by the Postmaster General upon certification by the Civil Service Commission from registers of eligibles, resulting from examination. The plaintiff' was so appointed, and took the oath of office and gave bond in the form provided by the postal rules and regulations of the United States. In his oath he expressly stated that he would support and defend the. Constitution of the United States and bear true faith and allegiance to the same. Section 732 provides that the official duties of rural carriers shall be the delivery into and collection from boxes on their routes of mail matter of 'all classes, etc. The plaintiff engaged in no other occupation with his automobile except to carry the United States mail, under his appointment, as provided by the postal rules and regula-' tions. We think that he was an officer of the United States, and did not fall within the provision of the statute requiring a license fee of persons using motor vehicles for the transportation of freight and property for hire. In United States v. McCrory, 91 Fed. 295, it was held that letter carriers in the postal service are officers of the United 'States within the meaning of an amendment to the judiciary act taking away from circuit and district courts jurisdiction of suits against the United States by such officers to recover fees. The principles of law defining persons who may be officers of the United States are clearly stated by Mr. Justice Miller in United States v. Mouat, 124 U. S. 303, 8 S. Ct. 505, as follows:

“What is necessary to constitute a person an officer of the United States, in any of the various (branches of its service, has been very fully considered by this court in United States v. Germaine, 99 U. S. 508. In that case it was distinctly pointed out that, under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a department; and the heads of the departments were defined in that opinion to be what are now called the members of the Cabinet. Unless a person in the service of the government therefore holds his place by virtue of an appointment by the President or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an . officer of the United States. ’ ’

As we have already seen, the plaintiff was appointed by the Postmaster General from a list of eligibles resulting from examination by the. Civil Service Commission, and had a fixed and permanent tenure of office. He was in no sense a person contracting with the United States, but was directly under its service as an officer appointed by the Postmaster General, who is a member of the Cabinet of the President. 'See also Groves v. Barden, 169 N. C. 8, 84 S. E. 1042 L. R. A. 1917A, 228 Ann. Cas. 1917B, 316.

The rural carrier is, as we have just seen, appointed by the Postmaster General, a member of the Cabinet, and the head of his department, and therefore comes within the classification of officers as construed by the Supreme Court of the United States, and is in no sense using the automobile in question for transportation of freight and property for hire within the meaning of the statute. Therefore the decree of the chancery court will be affirmed.


author: Hart, C. J.

text:
    Kendall v. Ramsey.
    Opinion delivered July 8, 1929.

      Festus 0. Butt, for appellant.

      James W. Trimble and Chas. D. James, for appellee.
   Hart, C. J.

Lem Kendall, as county .judge of Carroll County, Arkansas, prosecutes this appeal to reverse a judgment of the circuit court allowing- Cletus Ramsey, as county treasurer of Carroll County, the sum of $2,799.02 as statutory commission of two per cent, on the common school funds which came into his hands for the quarter ending October 1, 1928, as said county treasurer. The county treasurer filed his quarterly report with the county judge for the quarter ending- October 1, 1928, and asked commissions in the sum of two per cent, on the common school funds in his hands, which commissions "would amount to $2,799.02. The county judge disapproved his claim for commissions on the school funds, and the county treasurer took an appeal to the circuit court, which allowed the same.

The correctness of the decision of the circuit court depends upon the construction of two acts passed by the Legislature of 1927, fixing’ the salaries of county officers in certain counties. Act No. 69 was an act to fix the salaries of county officers in counties having two judicial districts and having* a population in excess of 17,500 and less than 19,000. 'Section 1 of the act provides that in all such counties as above stated the county treasurer’s commission on all school funds should be rebated to the common school fund of such county for apportionment by the county board of education. Section 2 of the act provides that all laws and parts of laws, general or special, in conflict with the act are hereby repealed, and that the act shall take effect and be in force from and after ninety days after‘the date of adjournment of the General Assembly. The act was approved March 2,1927.

Courts will take judicial notice of the division of counties into two judicial districts. St. L. I. M. & So. Ry. Co. v. State, 68 Ark. 561, 60 S. W. 654, and Lindsey v. Bloodworth, 97 Ark. 541, 134 S. W. 959. Courts will also take judicial notice of the taking of an official census and the population thereby determined, whether of nation, State, county, or city. 15 R. C. L., p. 1129, § 56, and eases cited, and 23 C. J., p. 161, § 1987. Hence the court will take judicial notice that Carroll County has two judicial districts, and has a population, according to the Federal census, in excess of 17,500 and less than 3.9,000. The county treasurer would fall within the provisions of the act when it took effect; and the statute, having no emergency clause, would take effect ninety days after the Legislature adjourned. State v. Davis, 178 Ark. 692, 11 S. W. (2d) 479.

The same Legislature passed act No. 77, which was an act to repeal certain special acts regulating salaries of certain county officers of Carroll County. Section 1 of the act .provides that certain special acts of the Legislature, 'being five in number, which are specially named, and which are declared to he special acts relating to and fixing the salaries of certain officers of Carroll County, are hereby repealed. Sections 2 and 3 of the act read as follows :

“Section 2. That each and all of the officers of said county, as designated in each and all of said acts, whose salaries are fixed by such acts, shall receive the fees now fixed by law for their respective offices, as their full compensation for their services as such officers. “Section 3. That all acts or parts of acts in conflict with any of the provisions of this act be and the same are hereby repealed, and this act shall be in full force and effect from and after its passage and approval.”

The act was approved March 3, 1927. This act did not contain an emergency clause, and also took effect ninety days after the adjournment of the Legislature. Act No. 69 will be found on page 183 and act No. 77 on page 210 of the Acts of Arkansas, 1927.

It is the contention of the county treasurer that act No. 77 repeals act No. 69, and that the county treasurer is entitled to the statutory commissions of two per cent, on the common school funds allowed by the general statute relating thereto. We do not agree with this contention. The courts have always leaned against repeals by implication, and subsequent laws do not abrogate prior ones unless they are irreconcilably in conflict. In other words, it is a rule of universal application that there must be a plain, unmistakable repugnancy before the courts will hold that a later act of the Legislature repeals a former act by implication. Chamberlain v. State, 50 Ark. 132, 6 S. W. 524; Mays v. Phillips County, 168 Ark. 829, 274 S. W. 5; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; Cordell v. Kent, 174 Ark. 503, 295 S. W. 404; Taylor v. Rogers, 176 Ark. 156, 2 S. W. (2d) 56; England v. State Highway Commission, 177 Ark. 157, 6 S. W. (2d) 23; and Johnson County v. Hartman, 177 Ark. 1009, 8 S. W. (2d) 469. Under these and many-other eases which might be cited, it is held that, if two acts are repugnant in any of their provisions, the later act without any repealing clause operates, to the extent of the repugnancy, as a repeal of the first.

In the application of the rule, this court has held that a general affirmative statute does not repeal a prior particular statute or the particular provisions of a prior statute on the same subject, unless there is an invincible repugnancy between the two. In McCord v. Louisville & Nashville Rd. Co., 183 U. S. 483, 22 S. Ct. 165, it was said:

“Repeals by implication are not favored, and are only allowed to the extent that repugnancy exists, and in order to give an act, not clearly intended as a substitute nor an earlier one, the effect of repealing it, the implication of the intention to do so must necessarily flow from the language used, bearing in mind the necessity and occasion of the law. And where it is plain that the new law is in aid of the purposes of the old law, the latter will not be held to be abrogated except so far as there is palpable inconsistency.”

Act No. 69, as we have already seen, applies to the officers of Carroll County, and under its provisions the county treasurer would not he allowed commissions on the common school fund of the county, but such funds would have been rebated for apportionment by the county board of education. Act No. 77 repeals five special acts relating to and fixing the salaries of certain officers of Carroll County. Reference to § 1 of the act shows that act No. 69 is not one of the acts expressly repealed by act No. 77.

But it is contended that act 69 is repealed by implication. We do not agree with counsel in this contention. Section 2 provides that each and all of the officers of Carroll County shall receive the fees now fixed by law for their respective offices, as their full compensation for their services as such officers. Act 69 relates to the same subject, and, instead of being repugnant to the provisions of act 77, would seem to he consistent in all respects with it. In other words, act 77 was passed by the Legislature in aid of the purposes of act 69. It is perfectly plain that, without act 77, the treasurer must receive his compensation under the provisions of act 69. Act 77 provides that the treasurer shall receive the fees now fixed by law for his office as full compensation for his services. The fees fixed by law were provided by act 69-, and, as just stated, the later act, instead of being repugnant to the provisions of the first act, was supplementary thereto and in aid of it. Hence we hold that there is no implied repeal of act 69 by' act 77, both of which were passed by the Legislature of 1927.

Therefore the circuit judge erred in holding that the county treasurer was entitled to commissions under the general law instead of under act 69. For this - error the judgment will be reversed, and the cause will be remanded with directions to the circuit court to approve the settlement made by the county court with the county treasurer. It is. so ordered.