text:
    Thurman v. Moore.
    Opinion delivered January 14, 1929.

      Robert A. Kitchen, for appellant.

      Saxon, Wade & Warren, for appellee.
   McHaney, J.

Title to the land covered by the oil and gas lease in controversy, southeast southwest 6-16-15, Union 'County, was involved in litigation on May 20, 1925, and was settled by this court in two cases, Wilson v. Biles, 171 Ark. 912, 287 S. W. 373, and Clark v. Wilson, 174 Ark. 669, 297 S. W. 1008. Pending a final determination of this litigation, and on the date aforesaid, all the parties thereto, being all the claimants to said land, joined in the execution of an oil and gas lease thereof to appellant, M. B. Thurman, for a consideration of $40,000', $20,000 cash and $20,000 to be paid out of seven-sixteenths of the first oil produced from said land. The lease further provided that the cash payment and all future payments from a sale of the oil produced therefrom should he deposited in escrow and held by the First National Bank of El Dorado for the benefit of the lessors, subject to the final determination of their respective rights in the litigation aforesaid. The lessors also executed and delivered to said bank a separate escrow agreement in accordance with said provision in the lease. Thurman paid the $20,000 cash to the bank, and proceeded to drill for oil, resulting in a very rich well. He sold the oil therefrom to H. E. Clark et al., doing business under the name of Penn Liberty Oil Company, and to the Magna Pipe Line Company, each of whom was furnished a copy of the above.-mentioned agreement. Thurman, the lessee, and both purchasers of said oil, neglected or refused to deposit the sums required by both the escrow agreement and the lease with the bank in payment of the balance due on the purchase price of said lease, and on October 27, 1926, all the parties, lessor and lessee, together with the escrow agent, joined in a suit to collect said money. Both purchasers had credited the lessors, with the correct amount due them, but had not deposited same to their credit in the bank. On the filing of the suit, the Magna Pipe Line Company paid all the money due by it to the bank, and the Penn Liberty Oil Company paid certain sums, which reduced the amount still owing on the purchase price to $5,354.73. On March 26, 1926, appellant Thurman assigned this lease to appellant Continental Supply Company, by the terms of which the Continental took subject to the payment of the $20,000 out of oil as aforesaid. The appellees here intervened in the action against Penn Liberty Oil Company, above mentioned, in what they call an intervention over, by which they sued Thurman and his assignee, the Continental Oil Company, for the balance due, in which they alleged that appellants had taken more than sufficient oil from the lease to pay said balance due thereon. The court decreed judgment against both appellants and a foreclosure of a purchase money lien for the sum of $5,354.73, which included interest to the date of the decree.

We think the decree of the chancery court was correct. The balance found due by the' decree was purchase money due by Thurman, the lessee, and he could not relieve himself from personal responsiblity by selling the oil to a purchaser who merely credits the amount due the lessors on his books, unless they agree to look to the purchaser therefor, or estop themselves by inconsistent conduct in some manner misleading the lessee to his injury. We find no such agreement in the record, and no conduct on which to base estoppel. True, they tried to get the Penn Liberty to pay into the depository the amount due, and joined with the lessee and escrow agent in a suit to compel them to pay, but by so doing they did not waive their right to require the lessee and his assignee to pay. They still have their action against the Penn Liberty Oil Company to recover the amount it is due and owing for such oil. The assignee simply stepped into the shoes of the lessee. He took his assignment subject to the payment of the purchase price out of the oil produced. This was a covenant running with the lease, and was not satisfied by the fact that sufficient oil had been run prior to the assignment to satisfy the claim, when, as a matter of fact, it had not been applied thereto. In such a case the assignee is liable. 1 Thornton on Oil, § 102.

Moreover, under the lease the lessee had full control of all the oil except the 1/8 royalty. He had plenary power to produce, sell or otherwise dispose of 14/16 of the oil and to collect for same, without consulting with the lessors. The lease did require him to deposit in said bank the proceeds of the sale of 7/16 of. the oil until $20,000' was paid in full. “ * _ * * and $20,000 to be paid out of 7/16 of the first oil and gas produced and saved from the lease hereinafter described. * * * It is further agreed that all payments under this lease shall be deposited in the First National Bank,” etc. This duty of making such deposits rested on the lessee and his. assignee, and not on the purchaser.

The decree is correct, and is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Tolbert Brothers & Company v. Molinder.
    Opinion delivered January 14, 1929.

      John A. Sherrill, for appellant.

      E. L. Hollaway, for appellee.
   McHaney, J.

Appellee was a subcontractor under appellant, Tolbert Brothers & Company, who were the principal contractors on the 'Corning-Piggott road, and appellant, -Etna Casualty & Surety Company, was surety on the bond of Tolbert Brothers. Appellee brought this action against both appellants to recover $642.82 on account of labor performed for Tolbert Brothers. He alleged that the work was completed in September, 1926; that he demanded payment of Tolbert Brothers, and that, on default in payment, he notified the surety company in December, 1926, of such default, and that the surety company agreed to pay same. The surety company filed a demurrer to the complaint,, the principal ground of which, and the only one urged here, is that the complaint shows on its face that the action was barred by the statute of limitations. There was no answer or other pleading for Tolbert Brothers. The circuit court overruled the demurrer, the surety company elected to stand on its demurrer, and judgment was entered in favor of appellee and against both appellants in the sum above stated.

The only question presented on this appeal is whether the action is barred by the statute of limitations. Appellee brought the action under § -67 of the Harrelson Act, act No. 5, extraordinary session of 1923, page 11, which provides, in substance, that every contractor for work in excess of $1,000 shall be required to give bond to be approved by the -State Highway Commission, equal to the amount of the contract, conditioned for the payment of material and labor used in the work, including that which may be done by subcontractors, for which an action on the bond may -be maintained by -such persons. This section further provides that claims for material and labor and amounts due subcontractors shall be filed with the Highway Commission within thirty days after the completion of the wbrk, or within sixty days after the time of its abandonment by the contractor, unless the commission shall issue an order extending the time. This act does not fix any period of time in which suit shall be brought on the 'bond, but does direct claimants to file their claims with the Highway Commission within thirty days after the completion of the work by the contractor, or within sixty days after it is abandoned by the contractor, if it is abandoned, unless the time is extended. The complaint in this case does not allege that the claim was filed with the Highway Commission within such time.

It is the rule in this 'State, as said in Earnest v. St. L. Memphis & S. E. Ry. Co., 87 Ark. 65, 112 S. W. 141, that “the statute of limitations cannot he taken advantage of by demurrer to the complaint, in an action at law, unless the complaint shows that a sufficient time has elapsed to bar the action and the non-existence of any ground of avoidance.” This rule has been followed in many subsequent cases by this court.

Another rulé is, in determining from the complaint whether a cause of action is stated, all the allegations therein, together with all inferences reasonably deducible therefrom, must be considered. Brown v. Ark. Central Power Co., 174 Ark. 177, 284 43. W. 708. Applying these rules to the case at bar, we are of the opinion that a cause of action was stated in the complaint, and that it does not show on its face that it is barred under the above statute. While the complaint shows that the work was done by the appellee in 1826, it does not show when the contractor completed the work, nor when he abandoned it, if he did abandon it. In other words, it does not show on its face the non-existence of a ground of avoidance.

It is next contended by appellant that § 6914, C. & M. Digest, is the general statute of limitations applicable to this case. This section provides that no action shall be brought on the bond after six months from the completion of the work. We do not agree with appellant that this is the applicable section. Another section, 6950, gave the appellee three years in which to institute an action against Tolbert Brothers, and the statute requiring the bond in this particular case not having fixed any period of limitations for bringing suit on the bond, we hold that it may be maintained at any time within three years, the contract with Tolbert Brothers not being in writing.

In the case of Ætna Casualty & Surety Co. v. Henslee, 163 Ark. 492, 260 S. W. 414, the action was based on § 5446, C. & M. Digest, which was ■§ 30 of the act of 1915, requiring contractors to give a bond for the faithful performance of such road contracts as may be awarded to them by commissioners of improvement districts, conditioned for the prompt payment to all persons supplying labor and material, and providing that suit may be brought in the name of the district upon the bond. No period of limitation was fixed in the act, but this court sustained a judgment against the surety in favor of a subcontractor furnishing labor and material under contract with Mobley, the principal contractor, on an action brought long after the six months’ period had expired. In that case the lower court allowed to be read to "the jury a decree obtained in the- chancery court by Henslee against Mobley upon the same cause of action. That decree was obtained on directions from this court in reversing the decree of the chancery court in Henslee v. Mobley, 148 Ark. 181, 230 S. W. 17. With reference to this matter the court said: ‘ ‘ The surety was not a party to that suit, but it was upon the same causé of action, and we are of the opinion that the decree was properly admitted in evidence against the surety in this case. It proved at least a prima facie breach of the bond by showing the amount due by Mobley to Henslee for a breach of the contract which the bond was given to secure.”

We have found no case directly in point on the question of limitation, either under the act now being considered or § 5446, and the diligence of counsel has not cited any. Counsel does cite a number of cases to the effect that statutes such as the one now under consideration, as well as §§ 5446 and 6914, were enacted for the purpose of requiring the obligation of a bond as a substitute for the security which might, in the ease of private ownership, be obtained by mechanics’ liens, such liens being impossible in cases of this kind, and not being given in the case of public buildings or other public work. This question was not raised in the Henslee case. While this is true, it does not follow that the right of action is limited to the six months’ period of time fixed by § 6914 of the Digest. This section was passed with particular refereuce to public officers who construct public buildings, or other public works, and while school directors and drainage district commissioners have been held to be public officers within the meaning of this section, we do not think that this period of limitation was intended to apply to bonds given for contractors to enter into contracts with the State Highway Commission to build public roads; else the statute requiring the bond would have definitely fixed the time.

Finding no error, the judgment is affirmed.


text:
    Hicks Memorial Christian Association v. Locke.
    Opinion delivered January 14, 1929.

      Claude V. Holloway, for appellant.

      Morris & Barron, for appellee.
   McHaney, J.

This ease was tried on an agreed statement of facts, which is as follows:

“The city of England has a population of approximately three thousand people. The city is divided by the railroad of the Cotton Belt that runs .north and south through the center of the city, but more of the inhabitants live on the east side than on the west side, possibly two thousand people live on the east side of town. On either side of the railroad is the business section of the town. Practically all of the business houses are located on the streets that parallel the railroad on either side. The testator, Mr. J. E. Hicks, on coming to England, about thirty years ago, located on the west side of town, where he lived until his death. He accumulated much business property -on the west side of town, but none on the east side. - His estate was worth approximately $350,000 at the time of his death. On the west side and on the street adjacent and parallel to the railroad he owned much valuable property.. The property designated in the will by Mr. Hicks for the erection of the recreation building, to-wit, lots seven, eight, nine and ten, block fifty, is located on the street adjacent and parallel to the railway right-of-way. In block forty-nine, immediately south of fifty, Mr. Hicks had large holdings. On the northeast corner of block forty-nine is located the Citizens * Bank & Trust Company, which institution was organized and controlled by Mr. Hicks. He was very devoted to the bank, being* the promoter thereof and a large holder of stock therein, and much of his time was consumed in making it a success. Mr. Hicks also owned considerable business property in block forty-eight, which is immediately south of block forty-nine. Most all of the business property belonging to Mr. Hicks, located near block fifty, was in his last will devised to his two sisters for life, remainder to the bodily heirs of his sister, Mrs. Bobihson, all of whom are defendants in this action. The donors (donation) of the ten thousand dollars, raised by plaintiffs, is being tendered with the understanding- and upon the condition that the erection of the recreation building would be upon a proposed site near the high school, admitted to be an extremely desirable location. The proposed site is on the east side of town, and approximately nine blocks from block fifty. The town has one graded school, the same being located on the east side of town and within three or four blocks of the high school.

“It is further agreed that it is unlikely plaintiffs could raise the required ten thousand dollars for the erection of the recreation building on 'block fifty, as a large majority of the people and donors prefer the high school location, as it is much more accessible to the young girls and boys for whom it was intended, and, if placed near the high school, a considerable expense could be saved in maintaining and caring for the property, as the school’s .janitors and librarians could be used in connection with the recreation building at no large additional expense.

“It is finally agreed that, although the proposed high school site is probably more adapted to the location of the contemplated building, according. to the consensus of opinion, yet no conditions have arisen since the death of the testator that would render the site selected by him less desirable or less adapted.for the purposes specified.”

The paragraph in the will of J. E. Hicks referred to in the above agreed statement of facts reads as follows:

“It is my wish and desire that my trustees and the citizens of England, Arkansas, or a committee representing the citizens, form a recreation association for the benefit of 'Christian young men and women of the city of England, and erect a building for their use. When said association has been organized upon such plans as may be agreed upon, my trustees shall deed and convey to such association, in trust for the purpose herein named, lots seven, eight, nine and ten, block fifty, and lots four and five, in block forty-nine, in the city of England, Arkansas. Provided, said deed is not to be made until the citizens of the city of England shall contribute the sum of $10,000, nor until the said $10,000 in cash is delivered to my trustees, and the same shall be delivered -within one year after the date of my death. If my trustees deem best, they are hereby empowered to sell lots four and five, in block forty-nine, city of England, Arkansas, and 'shall erect the recreational building.on lots seven, eight, nine and ten in block fifty, city of Eingland, Arkansas. The $10,000 contributed by the citizens of England, together with the proceeds of the sale of lots four and five, in block forty-nine, shall be used in the erection of a recreational building and equipments on lots seven, eight, nine and ten, in block fifty, city of England. In any event, the $10,000 shall be used in the erection of a recreational building, and if lots four and five, in block forty-nine, are not sold by the time the building is completed, then the trustees shall deed and convey these lots, as well as lots seven, eight, nine and ten, in block fifty, to said recreational association. If the citizens of England fail, within one year from the date of my death, to raise and contribute the $10,000 required of them, then I direct that my trustees sell all the property named in this item, and if the citizens of Lonoke, Arkansas, shall, within sis months after said year, or within a period of eighteen months after my death, raise $10,000 and deposit same with my trustees for the erection of a recreational building in Lonoke, Arkansas, then my trustees shall use the proceeds from the sale of said property, together with the $10,000, in the erection of a recreational building- in the town of Lonoke, Arkansas, for the benefit of 'Christian young men and women of the town of Lonoke, with the same purpose and object as provided if erected in England. ’ ’

According to appellants, the question to be determined is “whether the testator intended to confine the location of the building to one of the pieces of property devised in said section 13, or whether he intended to create a trust fund to be matched by a fund of $10,000 to be raised by the citizens of England, to erect and maintain said building, and to leave the location of said building in question to the citizenship of England, as expressed 'by the plaintiff association, and where it would be more serviceable to the entire citizenship of the city of England.”

It is a universal rule in the construction of wills to ascertain and determine the intention the testator had in mind from the language used in the will, giving consideration to the entire instrument, and to give effect to that intention, if not against some rule of law. In the recent case of Hurst v. Hinderbrandt, ante, p. 337, we said: “It is a fundamental rule of construction of both deeds and wills to ascertain the intention the guantón had in mind, as to the course he desired his property to take, from the language used in the instrument, and to give effect to such intention, if it may be done without doing violence to the law.” We there quoted from Booe v. Vinson, 104 Ark. 439, 149 S. W. 524, as follows : “The purpose of construction of a will is to ascertain the intention of the testator from the language used, as it appears from the consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. ’ ’

Bearing this well-established rule in mind, we must-look to the will to determine the intention of the testator. In one clause or sentence of the above section of the will he said: “If my trustees deem best they are hereby empowered to sell lots four1 and five, in block forty-nine, city of England, Arkansas, and shall erect the recreational building on lots seven, eight, nine and ten, in block fifty, city of England, Arkansas. The $10,000 contributed by the citizens of England, together with the proceeds of the sale of lots four and five, in block forty-nine, shall be used in the erection of a recreational -building and equipment on lots seven, eight, nine and ten, in block fifty, city of England.”

The testator then provided that, if lots four and five in block forty-nine had not been sold by the time the building is completed, then at that time his trustees were required to deed all the property to the recreational association. The trustees were empowered to convey this property to the association only when the building had been completed on the lots named. We do not think there is any room for construction, or reason to doubt the intention of the testator. He intended exactly what he said in the will, that is, that the recreational building should ■be erected upon the lots named, in any event, on lots seven, eight, nine and ten, block fifty. The trustees were empowered to sell lots four and five, in block forty-nine, and to use the proceeds in the erection and equipment of the building on lots seven, eight, nine and ten, in block fifty. He. gave no authority in his will to sell lots seven, eight, nine and ten at all, but only to convey them to the recreational association after the building had been completed thereon. Not having given his trustees any general power to sell lots seven, eight, nine and ten, and use the proceeds in the erection of a building in another location, they had no such power. The cy pres doctrine, or the doctrine of approximation, has no application in this case, as there can be no reason for the application of the ■doctrine of cy pres until it is shown conclusively that the will or wish of the testator cannot be given effect. It is the duty of the court to construe the will in the light of the intention of the testator as gathered from the will, but the court is not permitted to substitute its judgment for the judgment of the testator, because the court may think that a better location for the building may be found.

In 5 R. C. L., page 365, § 105, it is said:

“The cy pres doctrine can properly be applied only where it is or has become impossible beneficially to apply the property left by the founder or donor in the exact way in which he has dictated it to be applied, and it can only be applied beneficially to similar purposes by different .means. And there can be no question of cy pres until it is clearly established that the directions of the testator cannot be carried into effect. Therefore a court of equity is not entitled to substitute a different scheme. for the scheme which the donor has prescribed in the instrument which creates the charity, merely because a coldly wise intelligence, impervious to the special predilections which inspired his liberality, and untrammeled by his directions, would have dictated a different use of his money. Of course the doctrine of cy pres can have no existence when the donor himself provides for the application of the fund in the event of the failure of the charitable use to which he, in the first instance, directed that it should be devoted.” See also McCarroll v. I. O. O. F. of Ark., 154 Ark. 376, 243 S. W. 870.

It is agreed in the statement of facts that no conditions have arisen since the death of the testator that would render the • site selected and designated by him less desirable or less adapted for the purposes specified. In other words, the site designated by the- testator for the erection of the building is just as suitable now for the purpose designated 'by him as it was when the will was written.

A court of chancery would therefore have- no power to select a new location cy pres. The decree of the chancery court dismissing the complaint for want of equity was correct, and it is in all things affirmed.


author: Smith, J.

text:
    Dilday v. David.
    Opinion delivered January 21, 1929.

      M. F. Elms, for appellant.

      W. A. Leach, for appellee.
   Smith, J.

Appellees, doing business as the Aurora Southwestern Sales Company, brought suit against ap.pellant to recover the balance alleged to be due upon a contract for the sale of a pump. Appellant answered and admitted the balance sued for was due on the contract, but, by way of counterclaim, alleged there had been a breach of the guaranty under which the pump had 'been sold, that it would furnish or supply 1,200 gallons of water per minute to a rice crop which the pump was purchased to irrigate.

The contract of sale was in writing, and the guaranty contained in it reads as follows: “The above pump is guaranteed to have a range of capacity from 800 to 1,600 CPN, and is to be especially adapted to pumping 1,200-gallons per minute against the total lift of 120 feet, and when so performing to show not less than 70 per cent, efficiency of the power applied to the shaft above. This pump is also guaranteed to be free from defective material and workmanship, and we will replace any part free of charge that proves to be defective from above causes. ’ ’

The court below construed the language just quoted as a guaranty of the capacity of the pump only, and not one that a flow of 1,200 g'allons of water per minute would result from its use; and we think this construction of the contract is correct. The, fact that the pump did not actually deliver 1,200 gallons of water per minute did not necessarily show a breach of the guaranty. The water might not have been in the well, or sufficient power might not have been provided, or other causes might have contributed to the failure to produce a flow of 1,200 gallons of water per minute.

It was insisted by appellant (defendant below) that, after the execution of the written contract of sale, there was a subsequent oral agreement whereby plaintiff proposed to furnish defendant with a different pump and which was guaranteed to produce 1,200 gallons of water per minute. The making of this subsequent agreement was denied by plaintiff, but that question of fact was submitted to the jury, as will be later shown.

Defendant offered testimony tending to show that he had sustained a large loss on account of the lack of water for his rice crop, and by way of mitigating this damage he testified that he dug- a canal to bring water from another field which was supplied with water by another pump; that there was an improper setting of the pump, and certain pieces of the machinery were removed or lost, and damages were asked on account of these items.

Upon these issues the court charged the jury that: “If you find there was a subsequent contract entered into between the parties, and that the plaintiff in this case failed to live up to the terms and conditions of that .oral contract, then the measure of damages of the defendant are those items that I have just enumerated to you, and a fair rental value of 20 acres of rice land for the year 1926.”

It is insisted that this instruction is erroneous, as it eliminates as an element of the recoverable damages the difference in value of the crop produced and the one which would have been produced, had the guaranteed amount of water been supplied. We have concluded, however, in view of the testimony in the case, that no error was committed in giving this instruction.

The pump was sold in 1925, and the damages claimed covered the 1925, 1926 and 1927 crops. The admitted balance due on the pump was $650, and the jury returned a verdict for the plaintiff for the sum of $500, showing that the jury allowed a credit of $150 for the items submitted by the court.

The testimony was to the effect that a flow of 1,200 gallons of water per minute will properly irrigate 175 acres of rice in an ordinary season, and that defendant was under contract to grow 175 acres each year on the land to be watered by this well, and that he planted that acreage in 1925.' Defendant offered testimony to the effect that the well did not produce a sufficient amount of water to irrigate this acreage, and that to supply the deficiency he was compelled to bring water through a canal from another field, supplied by another well, at a cost of $75.

The testimony did not show that there was any shortage in the crop of the 175-acre field, but it was contended that taking the water from the other field reduced the yield on it, but there appears to be no testimony showing in wffiat amount this yield was reduced. Under this testimony the jury could allow nothing more on account of the 1925 crop than the cost of the construction of the canal.

If it was discovered in 1925 that the pump was inadequate and would not meet the guaranty under which it was sold, then defendant should, in mitigation of his damages for the breach of the guaranty, have ceased to rely upon it. He did not have the right to continue planting an acreage in excess of the known capacity of the pump to water, with the expectation of calling upon his guarantor to make good any deficiency between the crop made and the one which would have been made with a pump of the guaranteed capacity. A different measure of damages would apply.

The testimony on behalf of appellant was to the effect that he planted the 175-acre field again in rice in 1926, and that he had to get water from another field, which, according to the allegations of his cross-complaint, resulted in a failure to cultivate 20 acres of land in 1926 in this second field. Defendant’s testimony was to the effect that he reduced this acreage 40 acres, although he alleged a reduction of only 20 acres; but the undisputed testimony shows that, upon a test of the well on May 1, 1926, the pump was actually delivering 1,140 gallons of water per minute, and, according to defendant’s own testimony, this would have watered 167 acres, so that the water .supplied by the pump in controversy was sufficient to irrigate all but 8 acres of the land to be irrigated by it, and there was no showing of any loss or damage in the year 1926 other than the land which was not planted.

There appears to be an absence of any testimony sufficient to support a recovery for any loss in 1927.

The law is settled that, where no crop has been planted, the measure of damages for an actionable wrong so preventing is the rental value of the land (St. L. I. M. & S. Ry. Co. v. Saunders, 85 Ark. 111, 107 S. W. 194), and the court told the jury, as we have seen, that this was the measure of damages for the year 1926 for the land not cultivated.

The verdict indicates that the jury considered and took into account all the recoverable elements of damage sustained by a sufficiency of testimony to support a verdict. The .judgment must therefore be affirmed, and it is so ordered.


text:
    Missouri Pacific Railroad Company v. Bozeman.
    Opinion delivered January 21, 1929.

      E. B. Kinsworthy and Richard M. Ryan, for appellant.

      D. M. Halbert, for appellee.
   Smith, J.

The appellant railroad company brought suit in unlawful detainer to recover possession ,of the southwest quarter of the northeast quarter section 17, township 5 south, range 19 west, Hot Spring County, from appellee Prank Bozeman.

The complaint alleged that in 1910 the railroad company executed a written lease, with an option to purchase, of the land described to one J. T. McCowan, and that McCowan took possession under the lease and remained in possession until 19=2-6, when he surrendered the possession to Bozeman. There was an allegation of notice to quit and demand for possession, in writing, and the refusal of Bozeman to surrender possession.

Bozeman filed an answer, in which he alleged that he was in possession of the land, and had been for two years, and that he acquired his right of possession by a deed from McCowan. The answer denied that MeCowan had ever been a tenant, but alleged the fact to be that McCowan had been in the adverse and exclusive possession of the land for more than twenty years continuously before the institution of the suit.

On behalf of the railroad company the lease was offered in evidence, and it was shown that Bozeman was let into the possession by McCowan.

McCowan, while hostile to the railroad company, was called as a witness in its 'behalf, and testified that- the forty-acre tract was in the center of his field, and that he had cleared and put the land in cultivation. He admitted signing the lease, but testified that it was his understanding, when he did so, that he was signing a lease for land south of the forty-acre tract described on which a little house stood, and that he occupied the land as a part of his farm for much more than seven years, claiming to be the owner thereof, and that he had sold and conveyed the land by deed to Bozeman. Mc-Cowan did not claim to have paid any taxes on the land, and it was shown that all taxes had been paid by the railroad company, except those for 1926, which had been paid by Bozeman in 1927.

At the conclusion of the above testimony offered on behalf of the railroad company, the defendant, without offering any testimony, asked that the court, sitting, by consent, as a jury, find in his favor and dismiss the complaint, and this was done.

Upon the case made the court should have found for the plaintiff railroad company. The undisputed testimony shows that McGowan entered as the tenant of the railroad company under a written lease. It is true MeCowan testified that he was mistaken as to the land described in his lease, but there was no mistake about his taking possession of the land which his lease described. He therefore became the tenant of the railroad company when he entered into possession of the land under the lease, describing it, although he was mistaken as to the land which the lease described. •

In the case of Dunlap v. Moose, 98 Ark. 235, 135 S. W. 824, it was said:

“The action of unlawful detainer is only to decide the right to the immediate possession of lands and tenements, and not to determine the right or title of the parties to or in them. A tenant cannot dispute the title of his landlord while he remains in possession under him, nor acquire possession from the landlord by lease and then dispute his title, but must first surrender possession and bring his action. Washington v. Moore, 84 Ark. 220, 105 S. W. 253.”

■See also Burton v. Gorman, 125 Ark. 141, 188 S. W. 561; Garrett v. Edwards, 168 Ark. 243, 269 S. W. 572.

The deed from McGowan to Bozeman could convey no greater interest than McCowan himself possessed, and, as hie was a tenant, the deed, in legal effect, was nothing more than an assignment of the lease.

In the case of Gee v. Hatley, 114 Ark. 376, 170 S. W. 72, we quoted from 1 R. C. L., § 68, of the article on “Adverse Possession,” and under the sub-title, “Whether Tenant May Hold Adversely,” as follows:

“As a general rule, the possession of a tenant is that of his landlord, and will be so deemed until the contrary appears. This rule affects all who may succeed to the possession, immediately or remotely, through or under the tenant. Therefore, so long as the relation of landlord and tenant exists, the tenant cannot acquire an adverse title as against his landlord. This is merely one application of the rule that the tenant cannot deny his landlord’s title. It is equally well settled that one who enters as tenant is not, merely because of that fact, precluded from subsequently holding adversely to his landlord. To do so, however, it is necessary to renounce the idea of holding as tenant, and to set up and assert an exclusive right in himself. It is also essential that the landlord should have actual notice of the tenant’s claim, or that the tenant’s acts of ownership should be of such an open, notorious, and hostile character that the landlord must have known of it.”

There is nothing here to show that MeCowan repudiated the tenancy and that the railroad company had knowledge of that fact. The undisputed evidence is to the contrary, as is evidenced by the unbroken tax payments of the railroad company from the date of the. original lease to 1927, when Bozeman paid the 1926 taxes.

The judgment of the court below must therefore be reversed, and the cause will be remanded.


text:
    Bassett v. Mutual Benefit Health & Accident Association.
    Opinion delivered January 21, 1929.

      Robert A. Rowe and John E. Tatum, for appellant.

      Harrell Harper and Evans & Evans, for appellee.
   Smith, J.

Appellant, as administrator of the estate of R. S. Boyd, brought suit to recover the amount of an accident insurance policy issued by appellee insurance company on the life of his intestate. This suit was begun November 27, 1926, by filing a complaint in the circuit court, upon which summons was duly issued and served. The policy sued on was later made an exhibit to the complaint, and it appeared therefrom that the company had insured said Boyd from loss of life through accidental means, which, independently and exclusively of all other canses, should cause the death of the said Boyd, in the sum of $1,500, hut that death by suicide, whether the insured was sane or insane, was a hazard not covered by the policy.

On January 3, 1927, the company filed a demurrer to this complaint, which appears never to have been passed upon. On the same day the company filed a complaint in the chancery court, upon which a summons was duly issued and served two days later, in which the issuance of the policy and the death of the insured was admitted. The complaint alleged, however, that the policy had lapsed, but that the insured had later procured its reinstatement for the fraudulent purpose of augmenting his estate by committing suicide, and.that the insured did, on November 23, 1925, commit suicide. There was a prayer that the policy be canceled on account of this alleged fraud.

The suit at law was transferred to equity, over the objection of the plaintiff administrator, who, on April 23, 1927, filed in the chancery .court a motion to transfer the cause back to the law court, because the chancery court had no jurisdiction and because there was a full, complete and adequate remedy at law.' This motion was overruled. The plaintiff administrator then filed a demurrer, which does not appear to have been acted upon. He then filed an answer, and thereafter began an original proceeding in this court to prohibit-the chancellor from proceeding with the trial of said cánse.

In the opinion rendered upon a consideration of this petition, found reported as Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13, denying the prayer for a writ of prohibition, we said that the circuit judge had jurisdiction to pass upon the motion to transfer to equity, and that, if the cause had been erroneously transferred to equity, prohibition was not the remedy to correct the error, but the error could be corrected only by appeal. We said:

“Petitioner pursued the proper course in objecting and excepting to the order of the circuit court transferring the case to chancery, and by appearing in the chancery court and moving to transfer the case back to the circuit court.”

We said that, upon the motion to re-transfer being overruled, petitioner had the right, if he did not elect to stand upon his motion and refuse to proceed with the trial, in which event his complaint would, no doubt, be dismissed, to go to trial in the chancery court, and from an adverse decree against him he could appeal to this court, “where this court would review the case for all errors appearing in the record de novo,” and that “we therefore refrain from a discussion of whether the transfer from the circuit to the chancery court was right, and whether the decision of the chancery court on the motion to re-transfer to the circuit court was right, for, if both of these decisions were wrong, they cannot be corrected by prohibition, and can only be corrected by appeal.”

After the rendition of this opinion the chancellor proceeded with the trial of the cause, and found the fact to be that the insured had committed suicide, and, upon this finding, decreed the cancellation of the policy, and this appeal is from that decree.

We think the chancellor was in error in assuming jurisdiction of the cause, and that he should have granted the prayer to re-transfer the cause to the circuit court. If it be said that chancery had jurisdiction upon any allegations of fraud or otherwise to cancel the policy after the death of the insured (which we- do not decide), it must also be said that the jurisdiction to grant relief by cancellation was not exclusive, as the circuit court, upon proof of fraud invalidating the policy, could, by refusing to permit a recovery on the policy, have' granted, in effect, the same relief. The circuit court certainly had jurisdiction to determine whether the policy was void for the reason that its reinstatement had been procured by fraud, and its jurisdiction was first invoked, and for this reason, if for no other, the cause should have been re-transferred to the circuit court.

In the case of Mott v. First Natl. Bank, 171 Ark. 7, 283 S. W. 3, the maker of a note filed, when sued upon it, an answer, in which she alleged that the execution of the note had been procured through mistake, and she moved that the cause be transferred to equity on the ground that the answer presented an equitable defense. The circuit court refused to transfer the cause to equity, and in affirming that order we said:

“Counsel for appellant insist that the cancellation of the note was involved, and that this made it an equitable defense exclusively, but we cannot agree with counsel in this contention. The note was the basis of the action at law, and was, of course, exhibited with the complaint and introduced in evidence. It became a part of the record in this case, and a judgment for the defendant op the issues presented constituted a bar to any future action on the note, and was tantamount to its cancellation. ’ ’

In the ease of First Nat. Bank v. Reinman, 93 Ark. 376, 125 S. W. 443, 28 L. R. A. (N. S.) 530, it was held that, where timely objection was ¡made to the transfer of a cause from the circuit to the chancery court in a case where the action and defense were purely legal, it was error for the chancery court to entertain jurisdiction, and for that error that decree was reversed. See also SledgeNorfleet & Co. v. Matkins, 154 Ark. 509, 243 S. W. 289; Equitable Mfg. Co. v. Thomasson, 78 Ark. 240, 95 S. W. 459; Weaver v. Ark. Natl. Bank, 73 Ark. 462, 84 S. W. 510; Crawford County Bank v. Bolton, 87 Ark. 142, 112 S. W. 598; § 6156, C. & M. Digest.

The allegation that the reinstatement of the policy had been procured in furtherance of the insured’s fraudulent purpose to commit suicide constituted no ground conferring jurisdiction on the chancery court to cancel the policy, for the reason that the policy expressly provided that it should be void in the event that the insured committed suicide, whether sane or insane, so that the intention of the insured to commit suicide, whether to augment his estate or not, was and is immaterial.

It is an elementary principle of remedial procedure that a court of equity will not assume jurisdiction where there is a complete and adequate remedy at law, and such a remedy clearly existed in the instant case.

It is finally insisted that, even though the chancery court was in error in assuming jurisdiction, the error was harmless, for the reason that, had the trial been at law, a verdict in the company’s favor would have been directed, as the undisputed testimony shows that the insured committed suicide.

If the fact of suicide is shown by the undisputed evidence, the error is not prejudicial, but the error must be held to be prejudicial if any other inference can be reasonably drawn from the testimony. If the testimony is sufficient to present the issue whether the insured committed suicide, so that fair-minded men might intelligently differ as to whether the death resulted from an accident or from suicide, the case is one for the jury.

The insured was found dead, suspended by a rope around his neck, in the barn of his son-in-law, and the circumstances strongly point to suicide as the cause of death. The majority of the judges are of the opinion, however, that this is not the only inference reasonably and fairly deducible from the testimony.

There is a presumption of law against a man’s taking his own life intentionally, even when it is shown that he came to his death at his own hand. Mutual Life Ins. Co. v. Raymond, 176 Ark. 879, 4 S. W. (2d) 576; Fidelity Mutual Life Ins. Co. v. Wilson, 175 Ark. 1094, 2 S. W. (2d) 80.

In addition, it is insisted that there is an absence of testimony showing such a state of mind on the part of the insured as would be calculated to lead him to suicide. The insured had certain furniture in the barn loft of his son-in-law, and had borrowed a wagon and team from a neighbor to move the furniture to his farm. There were no stairs or steps to the loft, and the insured took a plow-line and went to the barn, after stating thát he would get the furniture down and load it into the wagon. The furniture consisted of a rocldngi-chair, bicycle, a boy’s wagon, and some other toys. The barn loft was floored with a few scattering planks, and it is the insistence of appellant that the. .jury would have been warranted in finding from the testimony that the insured, after fastening an end of the rope .to a rafter, fell and became entangled in the rope, which looped itself around his neck as he fell, and that in this manner the insured was accidentally killed.

Without further recitation of the testimony showing the circumstances of the insured’s death, the majority are of the opinion that the testimony presented a case for the jury.

The decree of the court must therefore be reversed, and it is so ordered.


author: Humphreys, J.

text:
    Stacy v. Edwards.
    Opinion delivered January 21, 1929.

      Giles Dearing, for appellant.

      J. Brinkerhoff and M. P. Watkins, for appellee.
   Humphreys, J.

There is a direct and cross-appeal in this case from a specific finding and judgment rendered in accordance therewith in the circuit court of Cross County, by the trial court, to the effect that, in a final settlement, appellant, as guardian, was indebted to his ward, the appellee, in the sum of $2,001.23. This sum was the balance struck in the statement of account between them by the trial court, after hearing the testimony adduced at the de novo trial of the cause in said court, on appeal from the probate court of said county. The trial court’s statement of account is as.follows:

“ W. W. 'Stacy should be charged with the following amount:

Paid on Turnbow estate voluntarily........................$11,315.77

Amount collected through chancery court............ 5,264.21

Total ...............................................................................................I.. 16,579.98

Plaintiff is entitled to one-third of this amount 5,526.66

W. W. Stacy should be charged from Dave Turnbow estate........................................................................... 3,307.88'

And with United States warrant.................................... 117.45

Total .................................................................................................. 3,425.34

Plaintiff is entitled to one-fifth this amount............ 685.06

With which the guardian should be charged, and which amount brought forward................................. 35.36

6,247.08

Guardian is entitled to credit of.................$4,783.17

Prom which will be deducted an item of board for said minor................................. 197.50

4,585.67 4,585.67

1,661.41

Six per cent, interest on $1,661.41 for a period of four years, or $99.66 per year..................... 398.64

2,060.05

Credit due guardian for error of $274.10 at first charged against him in item of Dave Turn-bow estate, and this credit is one-fifth of the error, $274.10..................................................................... 58.82

Balance due ward....................................................................$2,001.23

Appellant contends on the direct appeal that the judgment should be modified by deducting therefrom one-sixth of $940, expenses allowed by the chancery court in a partition suit of the lands inherited by appellee and the other five heirs from their father, W. N. Turnbow, deceased; $398.64 interest for four years on $1,661.40; one-fifth of $411.56 erroneously charged against him in the Dave Turnbow estate; the item of $197.50 disallowed appellant for boarding appellee in his home during her minority and until her marriage, after she became of age; and a reasonable sum as compensation for his services as guardian.

In order to better understand the statement of account between them by the court and the contention of appellant for a modification of the judgment and of appellee for a larger judgment, it will be necessary to set forth the salient facts in the case.

In 1916 appellant was appointed administrator of the estate of W. N. Turnbow, who died seized and possessed of a large amount of real estate and the owner of some personal property, leaving six children as his only heirs, three of whom, including appellee, were minors. At the same time appellant was appointed guardian for the three minors. On February 1, 1919, during the minority of the three heirs, he filed his first and only account current until he filed his final settlement on the 4th day of April, 1927. His first account current showed a balance due his wards of $35.36. The first account current was approved by the probate court, and no appeal was ever taken from the. judgment of approval. Appellee attained her majority on the 24th day of October, 1920. Early in the year 1920 one of the adult heirs brought- suit in the chancery court to partition the real estate of which the heir’s father died seized and possessed, and made the other five heirs parties thereto. The minor heirs had a homestead interest in the real estate, which was appraised at $2,500. The lands sold at the partition sale for $25,500, leaving a net balance, after deducting the value of the homestead rights of the three minors, of' $23,000, to be divided between the six heirs equally, after the costs of $940, including an attorney’s fee of $500, should be deducted therefrom. ......................,............Denton, the purchaser at the partition sale, executed interest-bearing notes to the guardian to cover the entire interest of his three wards, for $13,000, when in point of fact he should have executed a note for $14,000 to him. Their homestead interest amounted to $2,500 and their one-half interest in the balance of $23,000 amounted to $11,500. The two items added together make $14,000. The guardian seems to have paid the entire amount, including attorney’s fee, amounting to $940, to the commissioners. This he should not have done, as it was the duty of the adult heirs to pay one-half of the amount. The appellee herein was only liable for one-sixth of the total amount of the costs, according to the partition decree. As we understand the record, the guardian, appellant here, claims that the judgment should be modified by deducting' therefrom one-sixth of the cost item. The trial Court refused to allow him any credit on account of the cost item. The guardian collected from Denton the following amounts on the following dates: January 12, 1921, $400; April 8, 1921, $300; October 15, 1921, $1,000; December 15, 1921, $1,000; January 3, 1922, $1,000; March 28, 1922, $1,000; July 12, 1922, $1,000; October 11, 1922, $2,000; October 16, 1922, $1,000; and on April 26, 1923, $1,000; making in all $11,315.70 received by him voluntarily from Denton, which the trial court charged to him in the statement. Denton stopped paying’, and the guardian was compelled to bring a foreclosure suit to collect the balance due on the niote, amounting, when paid, including interest, to $5,264.21, after paying the costs and attorney’s fee, which amount the trial court charged to him in the settlement. In the statement made by the court appellee was allowed $5,526.66, being her one-third interest therein. The trial court also charged the guardian $3,425.34 which appellee and the other heirs inherited from their brother, Dave Turnbow, who died intestate during the month of February, 1924. Appellant was appointed administrator of Dave Turnbow’s estate, and administered upon it. In the statement made by the court, appellee was allowed $685.06 of said amount, being her one-fifth interest in the Dave Turnbow estate; but later in the statement he was allowed a -credit against appellee of $58.82, being one-fifth of an overcharge of $274.10 made against him on account of the Dave Turnbow estate. In the statement made by the court the guardian was allowed $4,783.17 for amounts he claimed to have paid appellee, after deducting therefrom a charge he made against her to the amount of $197.50 for board. According to the debits and credits contained in the statement made by the court, he found that the guardian, appellant here, was indebted to appellee in the sum of $1,061.41 four years before the final account current was adjudicated,upon which he charged the guardian interest in the total sum of $398.64. Appellee testified that she did not receive the entire amount of money her guardian claimed-to have paid her. The dates on which he made all the payments, if she received them, are in doubt. Testimony was introduced tending to show that appellee was entitled to a much larger sum than this for interest.

After a careful reading of'the record we have concluded that every debit and credit in the statement of the account by the trial court is sustained by substantial evidence, unless it be the court’s failure to charge appellant with one-sixth of the additional $1,000' which appellant should have collected from Denton, the purchaser at the partition sale, and to credit him with one-sixth of the $940 item adjudged as costs in said partition suit. The interest charged was very reasonable, considering the period of time over which the account spread and the uncertainty as to the amount appellant paid appellee. The item of board was properly disallowed. Appellee had lived with appellant as a member of his family during her minority and until she married, without any specific charge for board having been made against her, and we think it was too late to include a charge for board seven years after she attained her majority. If he expected to make a charge for board, he should have filed an annual account current and charged her with board by and with the approval of the probate court. The testimony reflects that during the time she lived in appellant’s home she performed the same services any other member of the family would have performed. Appellant was allowed a credit of $58.82 by reason of an overcharge made against him of $274.10 on account of the Dave Turnbow estate. In the state of the record we are unable to say that appellant was entitled to a credit by any greater amount on account of this item. The trial court should have allowed appellant one-sixth of the $940 item adjudged as costs in the partition suit, as he justly paid out that amount on behalf of appellee, 'but at the same time the court should have charged him with one-sixth of $1,000 which he failed to collect from the purchaser at the partition sale. "When these two items are considered together the difference is too small to interfere with the finding and judgment of the court, especially in view of the fact that the court only charged him with $398.64 interest and the further fact that the court did not allow him compensation for his services. Appellant claims that he should have been allowed a reasonable compensation for his services. Had he filed an annual account current he would have been entitled to a fee, but, having been derelict in this respect, the court properly refused to allow a fee for his services.

Appellee argues that she is entitled to a much larger judgment than was allowed her by the court, hut the motion filed by her for a new trial failed to point out specifically any error the court made in the statement of the account. The motion for a new trial was upon the ground that the verdict was contrary to the law and the evidence. It was necessary for her to file a motion for a new trial in support of her cross-appeal. St. L. S. W. Ry. Co. v. Alverson, 168 Ark. 666, 271 S. W. 27. The motion filed by appellant raised the question only of whether the verdict and judgment were sustained by sufficient evidence, or, in other words, whether it was supported by substantial evidence. Bowen v. Cook, 14 Ark. 202; Howcott v. Kilbourn, 44 Ark. 213; White v. Beal & Fletcher Gro. Co., 65 Ark. 278, 45 S. W. 1060; Naylor v. McNair, 92 Ark. 345, 122 S. W. 662.

It cannot be said, according to the undisputed evidence, that the court erred in his finding and judgment.

No error appearing, the judgment is affirmed.


text:
    Haughton v. Pierce Petroleum Corporation.
    Opinion delivered January 21, 1929.

      Murphy & Wood and R. B. Haughton, for appellant.

      Martin, Wootton & Martin, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellees in the circuit court of Garland County to recover both actual and punitive damages for an alleged malicious assault and battery committed upon him by three employees of the Pierce Petroleum Corporation while acting in the scope of their authority for said corporation.

Appellees filed answers, denying the material allegations in the complaint.

The cause was submitted upon the pleadings, testimony adduced, and instructions of the court, resulting in a verdict and consequent judgment against appellant, from which is this appeal.

The main contention of appellant for a reversal of the judgment is that the court gave instructions numbers 10, 14, 16 and 19 to the jury, at the request of appellees, which were inherently erroneous, and which were in conflict with instruction number 1 given at the request of appellant, correctly declaring the law applicable to the case.

Appellant resides on the Albert Pike Highway, about one-half mile from Hot Springs. A lane 12 or 14 feet wide leads from the pike to his house. The lane is intersected by a branch about 30 feet from the highway, over which a wooden bridge is constructed. Pierce Petroleum Corporation is vending oil in Hot Springs. Appellant ordered some fifty or sixty gallons of oil, which was delivered in a truck driven by W. N. Johnson, an employee of said corporation. In passing over the bridge the truck broke through. In returning it again broke through, and Johnson could not get it out without help. Another employee by the name of M. E. Putledg-e was sent out to assist Johnson. Fred L. Taylor, the manager of the company, went out later to take one of the employees a raincoat. A dispute arose between appellant and Taylor as to -whether the company was liable for the damage which was done to the bridge, which resulted in a fight, in which appellant was badly beaten up. Appellant testified that he was attacked by Rutledge, and before the fight was over he was also assaulted by Taylor and Johnson. His testimony was contradicted by all three of them, who testified, in substance, that appellant first abused and assaulted Rutledge, who fought in self-defense, and that Rutledge was not assisted by either Johnson or Taylor, but, on the contrary, Taylor made every effort possible to prevent Rutledge from striking appellant.

The latter part of instruction number one, given at the instance of appellant, told the .jury that: “While so making repairs or so discussing liability (if either of the saméis so found 'by the jury), any one, or more, of said Johnson, Rutledge or Taylor intentionally and maliciously made an intentional, wicked, malicious and violent assault on plaintiff, and thereby (if so found) intentionally, wickedly and maliciously beat and bruised plaintiff in the face and on other parts of his body, and that by reason thereof (if so found) plaintiff was injured iii any manner as set forth in the other instructions of the court, then the jury will find a verdict for the plaintiff against such of said defendants as the jury may find (if they do so find) so assaulted and beat plaintiff; and if the jury further believe and find from the evidence that any one or more of said defendants against whom the jury may find a verdict, as aforesaid (if the jury do so find), was at the time of said assault acting- in the scope of his authority or duty to defendant, Pierce Petroleum Corporation, then the jury will also find a verdict for the plaintiff against defendant, Pierce Petroleum Corporation.”

This instruction correctly presented the law applicable to -the facts under appellant's theory of his case. It will be observed that, under this instruction, the jury would not be warranted in returning a verdict for all of the appellees if Rutledge was justified and the others were not. The contention of appellant is that instructions numbers 10, 14, 16 and 19, given at appellee’s request, instructed the jury in effect to return a verdict for all the appellees in case it was found that Rutledge’s conduct was .justifiable. It will be only necessary to quote instruction number 10 in this opinion, as the same alleged error runs through all the instructions. Instruction number 10 given at the request of appellees is as follows:

“You are instructed that insulting and abusive language will not justify an assault; but, if one is assaulted, he may prove the aggression of his adversary not only in mitigation of damages, but as an absolute defense for any liability for any damage, provided he used no more force in repelling the assault than appeared to him to be reasonably necessary for that purpose; and if you believe from a preponderance of the evidence that the plaintiff assaulted the defendant, Rutledge, and that Rutledge repelled said assault, using no more force than appeared to him, acting as a reasonably prudent person, under all circumstances, to be necessary, to prevent bodily harm to himself, you are instructed that your verdict should be for the defendants.”

Instruction number 10 and likewise 14, 16 and 19, requested by appellees and given by the court, are inherently wrong for the reason suggested by appellant, and are in direct conflict with instruction number 1, which the court gave at the request of appellant. We do not think that it can be said that instruction number 1 cured the defect -in the other instructions. Where one instruction is correct and the other is inherently wrong, and they are contradictory of each other, they necessarily involve the issue, and are misleading and prejudicial.

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

MoHaney, J., dissents.


author: Kirby, J.,

text:
    Simpson v. Smith Savings Society.
    Opinion delivered January 21, 1929.

      Vivion O. Brack, for appellant.

      Troy W. Lewis and Clayton Freeman, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in not holding the transaction usurious and void and rendering judgment accordingly.

The appellee society only deducted from the amount loaned on the $300 collateral note the discount of 10 per cent, for the year, as it had the right to do under our law, and the reservation of or discount of the paper for that sum did not constitute usury. Section 7353, C. & M. Digest; Newport Bank v. Cook, 60 Ark. 288, 30 S. W. 35, 29 L. R. A. 761, 46 Am. St. Rep. 171; Vahlberg v. Keaton, 51 Ark. 534, 11 S. W. 878; Beard v. Millwood, 51 Ark. 548, 11 S. W. 881.

Castleberry v. Wild, 142 Ark. 627, 219 S. W. 739, is not an authority to the contrary, the facts being different, and the 10 per cent, for an entire year having been deducted there from the face of the note, which was due in 10 months. Neither are the cases of Dickinson-Reed-Randerson Co. v. Stroup, 169 Ark. 277, 275 S. W. 520, and Virgil R. Coss Mortgage Co. v. Jordan, 167 Ark. 34, 267 S. W. 590, in point as authority against this holding.

The contract too provides that no unlawful interest is intended to be charged or paid, and although it is not necessary that there shall be a mutual agreement to give and receive unlawful interest to constitute usury, if it be actually “reserved, taken or secured, or agreed to be taken or reserved,” there must be an intent to knowingly take unlawful interest to constitute usury. Garvin v. Lennon, 62 Ark. 370, 56 S. W. 781; Scruggs v. Scottish Mortgage Co., 54 Ark. 571, 16 S. W. 563; American Farm Mortgage Co. v. Ingraham, 174 Ark. 578, 297 S. W. 1039.

Usury will not be inferred where, from the circumstances, the opposite conclusion can be reasonably and fairly reached, and the defense should be established by clear and •satisfactory evidence. Leonard v. Floyd, 68 Ark. 162, 56 S. W. 781; First Natl. Bank v. Waddell, 74 Ark. 242, 85 S. W. 417; Citizens’ Bank v. Murphy, 83 Ark. 31, 102 S. W. 697; Everett v. Hart, 87 Ark. 534, 113 S. W. 213; Briggs v. Steel, 91 Ark. 458, 121 S. W. 754; American Farm Mtg. Co. v. Ingraham, supra.

The burden of proving usury in the transaction rests upon the party alleging or setting it up. Holt v. Kirby, 57 Ark. 251, 21 S. W. 432; Citizens’ Bank v. Murphy, supra; 13 Clark, Ency. Evidence, page 390; Hollan v. American Bank of Commerce & Trust Co., 159 Ark. 141, 252 S. W. 359.

The two contracts were separate and distinct, and if the one for the purchase of the investment certificate had 'been carried out according to its terms, the interest required on all the transactions, the investment certificate bearing 4 per cent, and agreed to be taken when matured in settlement of the money borrowed upon the collateral $300 note when it became due, would have reduced the amount of interest or discount on the loan below 10 per cent, instead of increasing it. Reeve v. Ladies’ Building Assn., 56 Ark. 316, 19 S. W. 917, Ann. Cases 1914C, p. 1307.

The note sued on was given for the payment of the purchase money of the investment certificate, and it makes no difference that the amount agreed to be paid was in 10 monthly installments, since the certificate was not matured until the end of 12 months, when the loan note was due, and neither was it the note upon which the money was loaned, but was given for purchasing an investment certificate to be used as collateral thereto.

There is a computation made in the brief showing the result of the whole transaction if the collateral note given for the $300 borrowed should not be paid when due, bnt renewed for another 10 months, with the same interest rate with the matured investment certificate and interest, security therefor. The renewal note would be paid in 10 monthly installments, $300; the interest allowed on the certificate for 10' months, $10; interest on the renewal note meantime at 8 per cent., $11, showing $617 paid by the borrower, from which is deducted the amount of the collateral note and interest, leaving a net saving to Simpson, the investor, the certificate and interest amounting to $306. The investor only paid $41 for $300 for one year and 10 months, or 7.92 per cent, ■simple interest annually, and accumulated $306 for himself while doing so.

This transaction is analogous to the system pursued by building and loan associations in requiring borrowers to subscribe and pay for stock in the association in order to the making of the loans, which are made only to members of the association, and upheld as not usurious on that account. Reeve v. Ladies’ Bldg. Assn., 56 Ark. 316, 19 S. W. 917; Taylor v. Van Buren B. Assn., 56 Ark. 321, 19 S. W. 918; Black v. Thompkins, 63 Ark. 502, 39 S. W. 553 ; Farmers’ Saving Assn. v. Ferguson, 69 Ark. 352, 63 S. W. 797; Bell v. Southern Home B. & L. Assn., 140 Ark. 371, 27 R. C. L. 210.

It has also been held that the exactment of a collateral advantage additional to the highest rate of interest allowed to be charged as a condition to the loan does not constitute usury, same being a separate and distinct charge from the amount agreed .to be paid for the advancement of money. Citizens’ Bank v. Murphy, supra. See also Cockle v. Flac, 93 U. S. 344, 23 U. S. (L. ed.) 949, and Union Cent. Life Ins. Co. v. Hilliard, 63 Ohio St. 478, 59 N. E. 230, 53 L. R. A. 462.

It is said in 27 R. C. L., § 31, page 230: “It is very generally held that the circumstance that the lender refused to make the loan unless the borrower would enter into another contract, which, apart from and unconnected with the lending, would be fair and legal, does not render the agreement for the loan usurious.”

We hold that the finding of the trial court in favor of appellee is supported by the testimony, and that the transaction was not usurious, and the judgment must be affirmed. It is so ordered. \


author: Kirby, J.

text:
    Lowmack v. State.
    Opinion delivered January 21, 1929.

      E. W. Applegate, Attorney General, and Effie Combs, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted by appellant from a judgment of conviction of murder in the first degree, with a sentence of life imprisonment imposed for killing his wife, Etta Lowmack.

It appears from the testimony that appellant, who was separated from his wife, had attended an ice-cream supper at the St. Paul Baptist 'Church, where she was also present on the evening of the shooting. About 10:30 p. m. the deceased, who was rooming with Cora Poe, a block or two distant from the church, left the place, running, one witness said, after Boss Bryant came and told her that Lowmack was going to kill her. Shortly afterwards two- pistol shots were heard, at an interval of a minute or two apart, and a woman’s voice screaming, “Oh Cousin Mary!- Come and get me. Lowmack has shot me!” Witnesses went to the place of the shooting, and brought deceased to Inez Cooper’s back porch. She had two bullet wounds. One bullet had lodged in the brain, and she said she was going to die, and was suffering greatly, and asked Inez Cooper to finish killing her, and she knew she was going to die. She was shot Saturday night, and lived until the next Tuesday, July 24. She inquired of this witness later, at the hospital, on the day she died, whether they had got Lowmack, and upon being informed that they had not, said: “Are they going to get him? I wish they would, ’cause he shot me.” She said further that Lowmack called her to come to him, and dragged her with him into the bushes by the side of the road, had sexual intercourse with her, and, after getting up, asked if she was going to come' back to him, and when she said “No,” shot her. That she then called Mary Hodge, her cousin, and told her that Lowmack had shot her. Said she was in front of Cora Poe’s house, where she was rooming, when appellant called her to come on with him. This statement was made about 10:30 in the morning, and deceased died at 4 o ’clock in the afternoon, and was conscious all the while until her death. Deceased was shot about a half block from Inez Cooper’s house, and maintained at all. times after she was shot that she was going to die.

Several witnesses heard the shots and heard deceased screaming- for “Cousin Mary,” and stating that “Lowmack had shot her.” The next morning witnesses went to. the place of the shooting, and found the hat and shoes of the deceased, Etta Lowmack, a bloody handkerchief, and two empty pistol cartridge shells.

Cora Poe testified that her husband was Etta Low-mack’s cousin, and that Etta roomed with them; that she saw the defendant at the ice-cream supper, and a little later Etta got some cream, and that she went home. Did not hear the shots, but, after being informed about it, met the men coming from the woods with Etta. That she said she could not live; asked them not to wash her face, but to finish killing her and get her out of pain; that she knew she could not live. Witness knew that Etta had been afraid of Lowmack, and asked why she went with him. 'She replied, “He called me, and told me to come there and go with him, that he wouldn’t hurt me.” When she got there he grabbed her by the hand and dragged her out into the woods. Said she was coming to my house, and was nearly there, was on the grass on the edge of the yard, when he called her. Witness had heard defendant say to her, a week before the killing, ‘ ‘ If you don’t take me back, I ’ll kill you. ’ ’

Appellant testified that, after he left the ice-cream supper at the church, he went up the hill to a dance, where he stayed until about 10' oclock. He came down the hill and met his wife, who had told him before dark she wanted to see him; met her not far from Cora Poe’s house, and she told him to wait there a minute. She went into the house, where she was staying, and came back with her hand in the bosom of her dress, and said, “I have got a lot to tell you.” She then went over and sat down, and said to him, “Sit down,” to which he replied he didn’t want to. She then said she wanted $50, and he replied he did not have it. At that time somebody threw a rock and hit close to him, and she sprang up towards him, and he knocked her back, and shot her, threw the pistol down and ran. He thought she had a gun, and as the rock fell she sprang up, and he shot as she sprang up, and knocked her back, and shot again. Knocked her back with his hand both times. She dropped something, and he turned and ran. Never saw what she had. Said he was. afraid of her, as she had shot him once, but was not mad when she shot him, and he lived with her a month and a half after that. Then she went to Cora Poe’s. Tried to get her to live with him, 'but she wanted to stay there, and he and Cora could not get along. He had never had any intention of killing his wife. He followed her because he was afraid of her, and knew she carried a pistol and an ice pick. After the shooting he caught a freight train to Malvern.. Went to Curdon, and from there to Prescott. Stayed with his brother at Prescott two days, and went to the jail and gave up. Ed Johnson told him, a week before the shooting, that deceased had gone to McElroy’s, and said she wanted a pistol to kill appellant. Denied saying that he would kill his wife if she would not live with him, and denied Leola Moseby was with her before he met her the night of the shooting.

Leola Moseby had testified that she left the church and started up the hill with' Etta Lowmack, going home, when her husband called her, saying, “Come back, I’m not going to hurt you,” and she went to him.

The court instructed the jury," giving the usual instructions in murder cases, and giving all the instructions asked by defendant, and from the judgment on the verdict against him this appeal is prosecuted.

No brief has been filed for appellant, who was defended by attorneys appointed for the purpose, and the evidence is sufficient to support the verdict.

The only questions raised were as to the admissibility of the testimony of appellant about a former conviction, and of dying declarations. All the witnesses stated that the declarations made by the deceased were made in the belief of approaching death, and after she had stated she was g'oing to die, and no testimony whatever tended to show that she had made any other statements about or expected any other result from her wound. Some of the witnesses stated she said she was going to die, before making the statements relative to the shooting and how it came about, without objection made to it. All of the testimony showed, however, that she maintained at all times that she would not get well, and that she had the last conversation with Goldie Danner about 10:30 of Tuesday morning after the shooting on Saturday night, and died about 4 o ’clock that afternoon, and remained conscious until her death. The statements were made by deceased after she was shot relative to the circumstances under which she was wounded, and under a sense of certain and impending death, which followed shortly thereafter, and were properly admitted as dying declarations. Freels v. State, 130 Ark. 189, 196 S. W. 913; Stewart v. State, 148 Ark. 540, 230 S. W. 590; Burns v. State, 155 Ark. 1, 243 S. W. 963; Hudson v. State, 168 Ark. 634, 271 S. W. 3.

The statements of some of the witnesses relative to the matter were made without objection, and objections and exceptions only would not avail, not having been made at the time of the introduction of the testimony. Vaden v. State, 174 Ark. 950, 298 S. W. 323; Clardy v. State, 96 Ark. 53, 131 S. W. 46; Seaton v. State, 151 Ark. 240, 235 S. W. 794.

Neither was error committed by the court in permitting appellant to be asked, on cross-examination, while testifying in his own behalf, if he had not been convicted for disturbing the peace. Turner v. State, 100 Ark. 199, 139 S. W. 1124; Hunt v. State, 114 Ark. 239, 169 S. W. 773.

The court g’ave all the instructions requested by the defendant, and as requested, and after a careful examination of the instructions given we do not find any error in them. No specific objections were made to instructions requested for the State, and in the motion for a new trial error is assigned only in the giving of “instruction Nos. 1 to ............ inclusive,” which is not sufficient to require examination and review of any of the instructions but that numbered 1. The case being a capital one, however, all the instructions have been considered as already'stated. It is true there was no instruction given on the question of dying declarations, but none such was asked, and appellant, if he desired an instruction on a particular point he regarded not covered by the instruction given, should have requested a correct instruction thereon. Lackey v. State, 67 Ark. 416, 55 S. W. 213.

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


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    Western Union Telegraph Company v. Downs.
    Opinion delivered January 21, 1929.

      Francis R. Stark and Wooldridge & Wooldridge, for appellant.

      Danaher & Danaher, for appellee.
   Kirby, J.,

(after stating the facts). It is contended for reversal that the court should have directed a verdict in appellant’s favor, and that, in any event, the evidence failed to show that the delay in the delivery of the telegram was the proximate cause of the damage, which appellant does not deny was sustained by appellee.

It is. undisputed that the telegram was sent on the date mentioned and not delivered until August 19 at 4:23 in the afternoon. The testimony on appellee’s part showed it was not delivered until a second telegram had been sent him on the 19th, inquiring if the 50 bales would be shipped out this week, and also that appellee’s agent immediately began inquiry of the compress company when it would be in operation again and the cotton could be compressed and shipped, and, finding it doubtful whether it could be done at all, the compress running* at irregular intervals in the summer, attempted to get an agreement from the railroad company to date the bills of lading back, which the company refused to do.

The testimony is conflicting, that on the part of appellee conducing to show that the cotton could not be sampled and compressed after the delivery of the telegram in time to ship it out on the date specified in the telegram and contract for its sale, and some of the testimony for appellant tending to show that it might have been done. This question was ■ submitted to the jury, however, upon proper instruction, and it determined that the negligent delay in the delivery of the telegram was the proximate cause of the damage resulting from the failure to ship the cotton on time according to the contract and the directions of the telegrams. This concludes, the matter, the verdict being supported by substantial testimony, so far as the appellant is concerned.

Certainly no error was committed in refusing to give the .appellant’s requested peremptory instruction upon the case as made. The message upon its face shows it related to the sale of 50 bales of cotton, the sender and the addressee being cotton buyers residing in Pine Bluff, and well known to be such by the agent of the appellant company receiving the message for delivery. It disclosed on its face that it related to a business transaction of importance and value to the sender, and the company had notice of any direct or actual damages, resulting or that might result from' its negligence in the transmission and delivery of the message,; and was liable therefor. Western Union Telegraph Co. v. Askew, 92 Ark. 133, 122 S. W. 107; Fulkerson v. Western Union Telegraph Co., 110 Ark. 144, 161 S. W. 168, Ann. Cas. 1916D, 221.

We do not find the instructions complained of open to the objections made against them, nor that any error was committed in the exclusion of the testimony of the witness Chaplin from the record, which he did not claim to have made from information furnished him, nor that it was a correct record of the dates of operation of the compress which he was required by his duties to keep*. Bush v. Taylor, 136 Ark. 554, 207 S. W. 226.

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


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    Easterling v. Farrell.
    Opinion delivered January 21, 1929.

      J. R. Parker, for appellant.

      A. A. Poff, Claude M. Cruce and W. R. Donham, for appellee.
   Kirby, J.

The undisputed testimony shows that the deceased, after his marriage, had established his home at McGehee, in Desha County, where he and his 'wife lived and kept house for four years, and where his work as fireman on the railroad required his residence, and where his membership in the order of locomotive firemen was. kept until his death. He went down into Louisiana later, following his occupation of a railroad fireman, but never lived with his wife, who had abandoned him, nor established a home there.

The fact that deceased, after leaving MoGehee, was down in Louisiana following his occupation of a railroad fireman, would not change his domicile or residence, under the circumstances of this case, from MoGehee, in Desha County, where it had been established, it not being shown that he had established a home or residence in Louisiana except as indicated. Crone v. Cooper, 43 Ark. 552; State Life Insurance Co. v. Ford, 101 Ark. 521, 142 S. W. 863; Wheat v. Smith, 50 Ark. 266, 7 S. W. 161.

The testimony shows conclusively that deceased had established his' home and residence with his wife at McGehee, in Desha County, where he worked and remained for four years after his marriage, necessarily showing am abandonment of any home or residence he might have had theretofore in Chicot County, and, such being the case, with letters of administration issued on his estate in that county, where the residence was shown to have been established, the burden of proof was correctly declared by the court to be upon the appellant, who attacked the legality of the issuance of letters of administration to appellee on the ground that his intestate was not a resident of Desha County, where the letters were issued.

The verdict of the jury is amply supported by the testimony, and the judgment is affirmed.


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    St. Louis-San Francisco Railway Company v. Norris.
    Opinion delivered January 21, 1929.

      E. T. Miller, E. L. Westbrooke, Jr., and E. L. Westbroohe, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Kirby, J.

This appeal comes from a judgment or order of the Pulaski Circuit Court, affirming an order of the Arkansas Railroad Commission requiring the appellant railway company to reinstate its passenger trains Nos. 101 and 102 in operation on its road between -the cities of Jonesboro and Mammoth Spring, Arkansas, upon substantially the same schedule as said trains were operated before being discontinued, or to put into operation between said stations a motor-ear of sufficient size to accommodate the traveling public and take care of perishable freight and express traffic in the affected territory.

There is a presumption that the rates fixed by the Railroad Commission are reasonable and orders made by it prima facie correct, and this presumption' in its favor yields only to the probative force of the evidence in the record, the burden being upon the appellant carrier to show that the order or judgment is erroneous. Ft. Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481; Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Co., 161 Ark. 12, 255 S. W. 903. In the latter case the court said:

“Upon appeal to this court we are called upon to inquire into the weight of the evidence for the purpose of determining whether or not the judgment of the circuit court is against the preponderance of the evidence. In other words, on appeal the findings of fact by the circuit court are allowed to stand unless they are against the preponderance of the evidence when tested by the presumption in favor of the findings of the commission, as outlined above.”

The petitioners were residents of the towns or stations of Williford, Imboden, Ravenden, Sedgwick, Black Rock, Bono and Portia, and seven witnesses from three of the places, Black Rock, Portia and Imboden, testified in support of the petitions, and their testimony conduced to prove the allegations of the petitions and support the findings of the commission. Black Rock is two miles north of Portia, and Imboden is nine miles north of Black Rock, and it developed that the necessity for crossing Black River on a toll bridge near Black Rock, in •travel on the State highway, influenced somewhat the opinion of witnesses of the necessity for and convenience of additional train service.

Cornatzer, passenger traffic manager for the railroad, testified that, ¡because of the travel or traffic over the hard-surface State roads, the business of the railroad had steadily decreased till it reached a point where each of the trains taken off lost approximately $1,700 a month. Said further: “Prior to construction of the hard roads and institution of bus service, trains 101 and 102 were remunerative. Trucks and privately owned automobiles have gradually depleted the earnings of the trains, and they are not paying. Our heavy decrease in local passenger earnings started on completion of the hard-surfaced roads, which in turn made greater the travel by automobile, and, if thére is sufficient business to .justify it, the bus lines immediately start operation; that is typical of the general situation as to local travel not only on the Frisco, but on the other lines. The bus lines run more frequently than the trains can run, and they make lower rates than the railroads are allowed to make; the trucks operate at lower rates and deliver from business house to business house. The shipment of cantaloupes is by refrigerator cars; if they have to go any distance they have to be refrigerated, and they and watermelons are shipped by freight. Some strawberries move by express, but the season is short. May is a typical month. The loss in operating these trains, 101 and 102, is $1,776.70.” Made no statement showing operating expenses and revenues for the year. Stated also that if fast through trains should be required to stop it would convert them into local trains and prevent their carrying long distance competitive traffic, which would go to competitors.

The Railroad Commission made findings that appellant company had wrongfully, on about the 20th day of June, 1926, and without notice to the commission, and in violation of § 7 of act 124 of the General Assembly of 1921, discontinued the operation of its trains Nos. 101 and 102, theretofore operated between the cities of' Memphis, Tennessee, and Thayer, Missouri, serving the various towns between Jonesboro and Mammoth Spring, Arkansas; that the appellant company was not operating enough trains to reasonably accommodate the traffic, passenger, freight and express, between the said Arkansas towns; that the traveling public was greatly inconvenienced on account of it, and that the exhibit introduced by Cornatzer in his testimony showed a deficit in revenue for passenger traffic only for the operation of trains 101 and 102; that the time for which the deficit was shown travel was the lowest during the year, and that it believed statistics covering the operation of said trains for the period of one year would show a substantial gain rather than a deficit in operation; that respondent did not offer to furnish the commission with the amount of revenue derived from express and freight handled on snoh trains, which, it was believed, would overcome the deficit in the operation shown by the exhibit made.

We are unable to say, after careful examination of the record, that the findings of the circuit court, which approved and' affirmed the findings and order of the Railroad Commission, are against the preponderance of the testimony, when tested by the presumption in favor of the findings of the commission, and the judgment must be affirmed. It is so ordered.