author: Mehaffy, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Matthews.
    Opinion delivered May 2, 1932.

      Thos. S. Busbee, Geo. B. Pugh and H. T. Harrison, for appellant.

      Tom J. Terral, and Gamghan, Sifford, Godwin <& Gaughan, for appellee.
   Mehaffy, J.

This suit was brought under the Federal ' Employers ’ Liability Act for personal injuries which appellee alleged were caused by the negligence of the appellant.:

He alleged that, while' in the discharge of his duty as fireman in the defendant’s yards on a switch engine, it became necessary for him to mount the tender for the purpose of measuring the oil contained in said tender, and, while he was in discharge of his duties about 9:3'0 o’clock at night, he stepped in some crude oil that had been carelessly and negligently spilled on top of the tender by agents, servants and employees of appellant; that it was dark, and he was unable to see the crude oil; that as he stepped into the oil he slipped, lost his balance, and fell forward, so that his left foot canght in the bracket on the edge of the tender, throwing him into the small place between the tender and the engine cab; that he was severely injured, crushed and bruised; that his hips, sides, pelvis and back were badly wrenched, bruised and sprained; that his injuries are permanent; that he suffers, and will continue to suffer the balance of his life, mental and physical pain; that, after receiving* his injuries, he continued to work as fireman for about three days, and was then forced to give up his employment on account of the pain being so severe, and go to appellant’s hospital, where he remained for about ten days, and where he returned for treatment at intervals over a period -of about eight months; that he was told, when he was discharged from the hospital, by appellant’s physician and surgeon that he was not permanently injured, but was merely sore and bruised, and that this would leave him after he had returned to work. His condition became worse, and he cannot perform any labor.

Prior to his injury, he was strong and healthy, thirty-two years of age, a locomotive fireman, and able to do the manual labor connected with 'same; that, as a result of his injury, he is wholly incapacitated and will so continue in the future; that appellant was negligent in failing, refusing, and neglecting to furnish a safe place in which to work; that appellant knew, or by the exercise of care could have known, that crude oil spilled on top of the tender of the locomotive was dangerous and unsafe; that appellant’s physician advised appellee to return to work, and relying on this advice, he did return to work, and in so doing, aggravated his condition.

The appellant answered denying all the material allegations of the complaint as to liability and damage, and alleged that the condition, if it did exist, was obvious, and appellee assumed the risk.

Appellant, as a further defense and bar to the plaintiff’s cause of action, interposed the defense of á compromise settlement and release.

According to the testimony of the appellee, he was a locomotive fireman for the appellant, a married man, and thirty-two years of age. At the time of his injury, in February, 1930, he was firing on a switch engine at the Biddle yards at Little Rock. He was called to report for duty at 9:30 in the evening. The name of his engineer was Eubanks.

The engine was fired with crude oil, and was filled before appellee went to work. He got there about 9:15 and'went to his engine, No. 1823. No one was on the engine when he got there that night. His duty was to get on the engine and look at the supplies, the water, oil and fire-boxes. The oil is measured before the engine starts out, and again when it comes in. The first thing he did when he got to the engine was to look at the fire-boxes and the water in the boiler. He then went to measure the oil. They are supposed to fill the tank before the fireman gets there. He had to get up by the ladder of the water tank. He got up on the engine and looked at the fire-box and water, and then went to measure the oil, and looked at the oil gauge. There was no light on the cab, but he could hold up the rod and see the oil on the rod. As he let the rod down, he turned around and his right foot slipped from under him, causing him to fall between the engine and the tender under the cab. After he had fallen down, he caught the grab iron and pulled himself loose. He then sat down and did not get up any more until around 2 o’clock. He could hardly get up then.

The engineer was absent, and the switchman was not there at the time of the accident. Appellee’s brother-in-law came up about the time he fell.

The oil that had spilled was about two inches deep, and on the ledge of the water tank. There was a rim or hip on the side of the engine, and you could not see the oil because there was no light in the cab. If there had been a light in the cab, he could have seen it. Engineers will not leave the light on the cab because it blinds them, and they took them out. There was a light about 20 feet away, but the raised place on the engine caused a shadow so that he could not tell what was there. They spill oil occasionally, but they always take the engines to the steam hose and wash the oil off. They neglected to do this that night.

Appellee then described his injuries, and his treatment by the appellee’s physician and surgeon, Dr. Runyan, and the physician told him he would get all right, to take exercise.

About 15 or 20 days after he was hurt, he tried to work again. The physician told him, that, if he would do this, he could work the soreness out; that he did not think it amounted to anything, and to go back and make a trip or two. He was released from the hospital to go back and work a day or so and then return to the hospital. He made about three trips and was again examined by Dr. Runyan, but he got worse all the time. He made the trips that the doctor told him to because he was poor and needed the money.

After he was taken out of employment by appellant, he drove a truck between Little Rock and Hot Springs for Terry Dairy 'Company, and got his brother to help him. He could not have done the work by himself. His brother did the loading and unloading. His condition did not improve, but grew worse.

He received the check for $40, but did not see any letter. The mail came and his wife opened it, and brought the check to appellee, and she misplaced the letter. He was in the hospital once before about two months when his thumb was mashed off, and they kept him on the pay roll; sent him a check every month. When check was handed to him by his wife, he thought that they were paying him as they did before, and indorsed the check. The doctor had told him he was going to get all right.

He did not know there was any statement in the check about the injury when he indorsed it. He did not know that there was any release sent to him. He thought the cheek was sent as they sent him checks before when he was injured. He did not read it and would not have settled, and would not have cashed the check, if he had known that it. was sent to him in final settlement. He did not know how badly he was hurt at that time, and would not have settled then. His wife told him the check was for $40, and he indorsed it, but did not look at the face of it. Witness had signed a statement which was presented to him, introduced in evidence, and read to the jury. The statement signed by him, among other things contained the following:

“When I made this step, I swung down with my right foot, and when I did I missed the upper deck on engineer’s side and went down to the lower deck of the engine and at the time I felt a pain in my left groin and hip. The reason that I missed the upper deck was because I was such a large man that the opening between the cab and tank of this engine was not quite wide enough for a man of my size to get down through. I weigh 210 pounds and am broad, and I suppose that the opening between the back of the cab of this engine and the front of the tank was about 16 inches wide.”

The statement was dated March 17, 'but was made earlier. Witness then identified time slips which were introduced in evidence, showing the trips that he made after this injury.

Witness had not taken the engine out of the round house. The hostlers fill the engines with water and oil, take them up and wash them off, and put sand on them, but they did not do it in this instance. The engine was at the place where witness was supposed to get it. The gauge showed it was full of oil. The oil was spilled all over the ground. He did not notice the oil until he had fallen. After he fell he stepped back upon the deck, and there was oil on his feet and hands. Oil was scattered all along on the tank, pretty thick for three or four feet. He discovered the oil by the light when they backed up. If there had been a light on the cab of the engine, he would have seen the oil and called the round house men to clean it up.

Witness then identified a letter which he had received from the claim agent in which it is stated that on April 5 a draft and release in the sum of $40 on account of his injuries had been sent him.

Several witnesses testified in behalf of plaintiff corroborating most of his statements, and physicians testified about his injuries, and testified that they were permanent.

A number of physicians for the defendant testified to the effect that they did not think the injuries were permanent. A number of other witnesses testified on behalf of the appellant, their testimony being in conflict with some portions of appellee’s testimony.

The appellant also introduced the following draft:

“Form 1631-A-5-28-200 bks. No. 74916
“THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
“$40.00 Little Rock, Arkansas, April 5, 1930.
“Pay to the order of J. O. Matthews forty and no/100 dollars for full settlement of any and all claims growing out of his injuries sustained at or near Biddle, Arkansas, on or about February 27, 1930, while employed as fireman. 30-12080.
“TO CARL NYQUIST, Treasurer,
“The C. R. I. & P. Ry. Co.
“Chicago, 111.
“(Signed) W. J. Flaherty,
“Inspector & Adjuster.”

There was a verdict and judgment in favor of the appellee in the sum o'f $10,000 less $40.

A motion for a new trial was filed by appellant and an additional motion on the grounds of newly discovered evidence. Both motions were overruled, and the case is here on appeal.

' The appellant relies on a release, and states that the evidence was not sufficient to create an issue of fact for the jury’s determination as to the validity of the compromise settlement.

In the first place, there is no evidence that any settlement was ever made. The appellant’s witnesses do not claim that a settlement was made, or that any agreement was ever made with appellee, except they say that the statement in the face of the check was a settlement.

According to the evidence of appellant’s witnesses, appellee not only did not sign the release which he was requested to sign, but positively refused to sign it.

Appellee’s testimony is that when the check came, his wife opened the envelope, brought him the check or voucher folded, and told him that it was a check for $40 and he indorsed it. He did not see the release, and did did not see the face of the check. According to his testimony, he thought they were sending him checks as they did when he was injured once before, and for that reason indorsed it without looking at it. He testified that when he was injured once before the appellant kept him on the payroll, and sent him a check every month, and he thought that they were doing the same thing when he received this check.

This evidence about having received cheeks monthly when he was injured before is contradicted by appellant’s witness, the claim agent, but this was a question of fact for the jury, and what appellant calls a compromise was appellee’s indorsement of the check which had been sent him, although there is no evidence that any agreement had ever been reached, or that the amount of $40 had ever been discussed or mentioned.

The appellant’s witness himself testified that appellee stated he wanted $100 and the witness, the claim agent, declined to give it, and appellee went away. No reason is given by the claim agent for fixing the amount at $40 and sending appellee a check.

Appellant cites and quotes at length from Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268, and states that the decisions of the Supreme Court of Arkansas are in harmony with the Supreme Court of Kansas in the case cited. The cases cited in Odrowski v. Swift & Co., supra, sustain the contention of appellee in this case, and none of them, we think, supports the contention of appellant.

In the case relied on by appellant, the employee alleged that the release was procured by misrepresentations made by the company’s physician, but the employee in that case did not testify that he was induced to sign the release because of the statement of the physician, but that he signed it without knowing what it was or without reading it. There was no evidence of any fraud, and he was not indorsing the cheek, but signing a release, and the court in that case recognized the rule that the modern tendency is to extend, rather than to restrict, the power of courts to grant relief against contracts induced by unfair dealing. But in that case there- was,no misrepresentation made, no effort to get him to sign the release, but he signed it voluntarily without reading it.

One of the cases cited by the Kansas Court is Ladd v. C. R. I. & P. Ry. Co., 97 Kan. 543, 155 Pac. 943. In that case the company’s physician examined the injured party and stated to her that he found no bruises or permanent injuries or broken skin, but that her neck was swollen, and directed her to go home and bathe her neck in hot water, to take the swelling out. Some days after this, the claim agent of the railway company went to the home of the injured party, paid her '$5, and procured her signature to a release. The court held the release was not binding, and said:

“Authorities are ample to sustain an avoidance of this release on account of the mistake of fact made by the plaintiff.” It then cites many cases to support the rule announced.

Appellant cites also 2 Black on Rescission & Cancellation, § 384. This author, however, says in § 389: “In regard to cases of this sort, it is said that settlements made with injured employees immediately after the accident are not looked on with favor by the courts, and that, while the law favors the adjustment of controversies fairly made, yet settlements of claims for personal injuries made with persons who are poor, and without the aid of counsel, or the benefit of independent advice, should be closely scrutinized.”

In this case, the undisputed evidence shows that there was no settlement at all.

Counsel also cite and rely on Kansas City Sou. Ry. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123. In that case the injured party wrote into the release herself the following: “I understand that I am settling all claims against the Kansas City Southern Ry. Co.”, and then signed the release. The court said in that case: ‘ They were expressly contracting with reference to injuries received on a certain occasion, the claim was unliquidated, and the contract shows that the parties intended to settle all matters between them relating to that incident. ’ ’

In the instant case there is nothing to show that the parties intended to settle. The only claim the appellant makes is that there was a statement in the face of the check that it was in settlement of his injuries, but, as we have already said, the undisputed evidence shows that appellee did not know this. It is also shovm that appellee refused to make a settlement or sign a release.

Appellant calls attention to 23 R. C. L. 385-386. On page 395 of 23 R. C. L., it is stated: “A nominal or grossly inadequate consideration for a release will be given serious consideration as affecting the question of fraud in its procurement. When due weight is given to other surrounding conditions, and there is evidence that the consideration is inadequate, it is a circumstance which, in connection with other circumstances, may be submitted to the jury, and, i'f grossly inadequate, it alone is sufficient to carry the question of fraud or undue influence to the jury, and where there is inadequacy of consideration, but it is not gross, it may be considered in connection with other evidence on the issue of fraud, but will not, standing alone, justify setting aside a contract or other paper writing on the ground of fraud. And therefore, on the question of fraud vel non in inducing an employee to accept benefits from a relief department in release of the master’s liability for negligent injuries, his situation, conduct, and surroundings at the time, as well as the amount received, may be considered.”

On page 397 of 23 R. C. L. it is stated: “There cannot be a release of a cause of action for personal injuries without unequivocal acts showing expressly or by necessary implication an intention to release. Generally the construction of the release as to the actual intent of the parties presents a question o’f fact to be determined from the surrounding conditions and circumstances, construed with reference to the amount of consideration paid and the language of the release itself. The amount of consideration paid should have considerable force in determining whether the release was simply paying the releasor for loss of time or some other specific element of damage, or whether it indicated payment of a substantial sum in consideration of which the releasee secured himself against all further developments and the releasor assumed the risk thereof.”

This is a statement of the principle of law governing in cases where injured parties sign a release where the act of the party is deliberate. The evidence in the instant case shows clearly that appellee never intended to sign a release for $40.

Appellee also calls attention to 53 C. J. 1213. The statement of the law in this volume, however, is substantially the same as in R. O. L.

Attention is next called, to Texas Co. v. Williams, 178 Ark. 1110, 13 S. W. (2d) 309. In that case, however, the injured party not only signed a release, but was paid a substantial sum, $1,500, and the court stated that he admitted signing the release agreement, but that he signed it without knowing its contents. That was wholly different from indorsing a check as appellee did in this case, and refusing to sign a release. In that case he admitted he signed a release, and was able to read and write, and understand the nature of a contract.

This court, in Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394, said: “The moment the plaintiffs indorsed the check and collected it, knowing that it was offered only upon a condition, they thereby agreed to the condition, and were estopped from denying such agreement. ’ ’ In that case the undisputed evidence showed that the check was indorsed by the party, knowing at the time that it was offered upon condition. He knew what the condition was, he accepted it, and agreed with the other party.

There is no evidence in the instant case tending to show that there was ever any agreement, or that appellee ever saw the face of the check. There is no evidence' that he saw the letter said to have been written, or that he saw the release sent to him to sign, or that he knew of the existence of either of them.

This court said in another case: “Of course, if she accepted a sum, however small, as compensation for her personal injuries, or if she had signed the written release with a full knowledge of its contents, she could not recover at all, whether she offered to return the money or not, for a contract, fairly entered into, for the settlement of an unliquidated claim for damages would bar the right to recover more.” St. L. I. M. & S. R. Co. v. Smith, 82 Ark. 105, 100 S. W. 884.

It certainly cannot be contended under the evidence in this case that appellee signed a release with full knowledge of its contents. If lie had been handed a release or had been told it was a release he was signing, or if he had known that he was signing a release, he would be bound whether he read it or not, unless there were other reasons for holding it void, but certainly the mere indorsement of a check would not, of itself, show that the appellee signed a release with a knowledge of the facts.

It was said: “This court has frequently held that a release executed by an injured party, relying upon the mistaken opinion of the physician of the party responsible for the injury, that it was slight and temporary, and not permanent, is not binding upon the party making it.” Mo. Pac. Ry. Co. v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528.

It is true that the plaintiff stated that, if he had known it was a release, he would not have signed it any way, but testimony clearly shows that the company’s physicians told him that his injuries were not serious, and he would be well in a few days. It is wholly unimportant whether they were honestly mistaken or not. The presumption is that they were. If they made the statements to appellee, and he relied on them, it would be sufficient ground to set aside the release, even if appellee had known it was a release he was signing. If he did not know it, and simply indorsed the check in the ordinary way, a check like others he had received from the same company, he would have no reason to believe that it contained a release, and the release would not be binding.

It is next contended by the appellant that the undisputed testimony shows that plaintiff assumed the risk. The undisputed testimony shows that he got his engine where he was supposed to get it, that the hostlers had prepared it for him, that he did not know there was any oil on it, and that he could not see it because there was no light. The undisputed evidence also shows that prior to this time, if the hostlers spilled oil, they took the engine to the steain hose and washed it off. The appellee did not know there was any oil on the engine, and he had no reason or knowledge of facts that would cause him to believe there was any danger.

It is next contended by the appellant that the court erred in the instruction given to the jury at the request of appellee. It is contended that instruction No. 1 given at the request of the appellee was erroneous, and the specific objection to that was that the paragraph in said instruction, submitting the question as to whether or not oil had been spilled, through the negligent acts of agents or servants of the defendant, or had been permitted to remain through the negligence of defendant’s agents or servants, for the reason that there was no evidence upon which to submit this issue to the jury. In other words, the specific objection to this instruction is that there is no evidence that appellant was guilty of any negligence in spilling the oil or permitting it to remain there.

The appellee testified that he went to the engine where he was supposed to take charge of it, and that the oil was spilled on it, that the oil was put in by the hostlers, and that when they spilled oil it was their custom to take the engine and clean it off. • He testified that Eubanks was his engineer, and neither Eubanks nor the hostler, who put the oil in, and who it was alleged spilled it, nor any other witness was called to contradict this testimony of appellee.

No reason appears why the hostler who put the oil in that night did not testify. There was therefore ample evidence to submit the question to the jury, as was done in instruction No. 1.

No argument is made as to the other instructions. ~We have carefully considered all the instructions, and reached the conclusion that the court committed no error in giving or refusing instructions.

It is next contended that the court erred in overruling defendant’s objection to the argument of plaintiff’s counsel. There was no prejudicial error committed ■by the court here. Pac. Mutual Life Ins. Co. v. Ware, 182 Ark. 868, 33 S. W. (2d) 46; Ark. P. & L. Co. v. Hoover, 182 Ark. 1065, 34 S. W. (2d) 464; Booth v. Racey, 171 Ark. 561, 285 S. W. 29; Black Bros. Lumber Co. v. Person, 163 Ark. 40, 258 S. W. 976; F. Keich Mfg. Co. v. Wallace, 171 Ark. 647, 286 S. W. 815.

The court did not err in overruling appellant’s motion for a new trial. Jewel Coal & Mining Co. v. Whitner, 170 Ark. 393, 279 S. W. 1031; N. W. Ark. Farmer’s Mutual Tornado Ins. Co. v. Osborn, 180 Ark. 757, 22 S. W. (2d) 387; Bradley Lumber Co. v. Beasley, 160 Ark. 622, 255 S. W. 18; Carden v. Montgomery, 171 Ark. 1000, 287 S. W. 183.

There was substantial evidence on which the jury could find that the appellant was. negligent, and that appellee indorsed the check in the .manner and under the circumstances described by him, and the findings of a jury, if based on substantial evidence, will not be disturbed by this court.

The judgment is affirmed.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Union Securities Company v. Taylor.
    Opinion delivered May 2, 1932.

      W. J. Dung am, for appellant.

      Walter Killough, for appellee.
   Mehaeey, J.

Appellee brought suit in the Wood-ruff Circuit Court against the appellant for damages for killing a.mule. He alleged that one of appellant’s trucks negligently ran over and killed his mule of the value of $250. The appellant denied all the allegations of the complaint.

Fred 'Swindle testified that some time in January, 1930, a truck of the Dixie Plantation killed a mule belonging to the appellee. Witness was coming from Wynne and saw the truck; he had trailed behind the truck for some distance, and the truck was going from 40 to 45 miles an hour. There was a negro in front of the truck and a man on the inside. He saw the name “Dixie Plantation” on the truck. Witness tried to pass them-but was unable to do so. Witness was with appellee when he talked to Gordon, the manager, about the accident.

Gordon said the court would have to settle it, and then later told Mr. Taylor that he would let him know in a few days; he talked favorably about making- the settlement. He said something about his truck being in Memphis, and he went back and looked and then said he must have made a mistake, and told Mr. Taylor that he would hear from him in a few days. He did not say who was driving the truck, but Gordon asked witness to look at a big negro, but he could not identify him.

Wesley Bostick testified that he knew the mule that was killed and that it was Mr. Taylor’s. He saw it the next morning; The mule was dragged about 150 or 200 feet. The market value of the mule was $175. Saw the truck and it had “Dixie Plantation” on it. One of the men in the truck was a negro. Went with Taylor to seé Mr. Gordon, and Gordon said his truck had not been out. He then went back and looked at his book, and said his truck went to West Memphis. They talked about' settlement, but did not agree on a price.

Sam Hunt saw the truck and saw the dead mule; knew it was Taylor’s mule, and heard it when the truck hit the mule. The mule was dragged 100 or 150 yárds.

Oscar Neal testified that he saw “Dixie Plantation” on the truck.

Isom Maxwell also saw the mule; saw broken glass, and it looked like the mule was hit by a car or truck.

G. G. Doris knew the mule and fixed its value at $125.

The appellee testified that his mule was killed just east of Rolfe School House on Highway No. 64, in Cross County. It was dragged about 100 or 150 feet; went down to the Dixie Plantation to see about it. One time Wesley Bostick went with him and another time Sam Hunt. Fred Swindle went with him once. Talked with the manager, Gordon, and Gordon told him he had a truck with “Dixie Plantation” on it, and did not know of any other truck with that sign. He told appellee that he sent his truck to West Memphis, and he promised to pay for the mule but never did.

C. S. Gordon for defendant testified that he was manager of the Dixie Plantation, which was operated by the Union Securities Company, a corporation; knew nothing about the killing of the mule; that their truck was over there on Christmas day, and that that was the only trip it made; that he let a man, Hardin Mahan, have his truck to move his household goods to some place east of Memphis, and that he made Mahan a price and he paid it, and that Mahan picked up a boy to bring the truck back; that witness could not send any. Mahan intended to do his own driving and come back and get another load. He did not know the negro boy had gone with him; did not send him; he did not tell anybody he sent a load of negroes to Memphis; told them he sent the truck over with a fellow to move his family; rented him the truck; did not tell Fred Swindle and Mr. Taylor that the truck was out' on the day the mule was killed; that Swindle and Taylor were mistaken about it; that the negro boy that Mahan got to go and bring the truck back lives on Gordon’s place; told Taylor that, if they were liable, they would pay for the mule, and told Taylor he would let him know.

There was a verdict and judgment for $125, and the case is here on appeal.

The only question in the ease is whether there was sufficient evidence to sustain the verdict of the jury.

Appellant contends that the evidence is not sufficient to show negligence on the part of the driver of the truck.

To constitute actionable negligence, there must be, not only lack of care, but such lack of care must involve a breach of some duty owed to the person injured. In other words, negligence is the failure to do something that a person of ordinary prudence would do, or the doing of something that a person of ordinary prudence would not do under the circumstances.

Our statute ■ provides that no person shall drive a motor vehicle upon a public highway at a greater speed than is reasonable and proper, and that, if the rate of speed of any motor vehicle operated on the public highway exceed^' 20 miles an hour for a distance of % of a mile, such rate of speed shall be prima facie evidence that the person operating such motor vehicle is going at a greater speed than is reasonable.

The violation of the statute is merely evidence of negligence, and is not conclusive. Pollock v. Hamm, 177 Ark. 348, 6 S. W. (2d) 541; Fields v. Freeman, 177 Ark. 807, 8 S. W. (2d) 436.

While the violation of the statute is merely evidence of negligence, this court has held that one of the purposes of the statute is to prevent accidents and preserve persons from injury. White v. State, 164 Ark. 517, 262 S. W. 338. The evidence in this case shows that the truck, at the time of the accident, was going 40 or 45 miles an hour. This evidence is not disputed. Neither the driver of the truck nor the person who was with him testified in the case. Not only does the undisputed evidence show that the truck was going 40 or 45 miles an hour, but it also shows that the mule was dragged a considerable distance.

The jury were justified in concluding from this evidence that the driver of the truck was guilty of negligence.

In testing the legal sufficiency of the evidence to support the verdict, it must be considered in the light most favorable to the appellee.

It is contended also by the appellant that the undisputed evidence is to the effect that the men in charge of the truck were not employees or servants of appellant, but that Mahan solely was responsible for the driving of the truck at the time. Three or four witnesses testified that Gordon, the manager, stated that he had sent his truck over there. He first stated to the witnesses that it was not appellant’s truck, but, after going back and looking at his books, he said that appellant’s truck was over there at the time. Gordon denies making these statements, but this was a question of fact for the jury.

He says that the negro boy went with Mahan to bring the truck back, but at the time they took the truck over Mahan was to come back after a second load. If this were true, there would be no reason for the negro to go to bring the truck back, and if the manager’s testimony is true, there would be no reason for his going at all.

At least three of the witnesses who testified about what Gordon said were disinterested witnesses. Neither the negro nor Mahan testified.

We think the evidence is sufficient to justify the jury in finding that at the time of the accident the persons in charge of the truck were employees of appellant, and whether they were or not was a question of fact for the jury, to be determined from the evidence.

We find no error, and the judgment is affirmed.


author: MoTIaney, J.

text:
    Water Improvement District No. 1 of Benton v. Briner.
    Opinion delivered May 2, 1932.

      H. E. Spitzberg and W. B. Donham, for appellant.

      N. A. McDaniel and T. N. Nall, for appellee.
   MoTIaney, J.

Appellants, Municipal Improvements Districts of Benton, Arkansas, filed suit in the Saline Chancery Court on September 8, 1931, to enforce the collection of delinquent improvement taxes. The complaints for this purpose were signed by M. H. Holleman, as solicitor. The appellee intervened in these suits, alleging that he is the city attorney of the city of Benton, duly elected, qualified and acting; that appellants are local improvement districts, one the water district, the other a sewer district, organized under the general improvement district laws of the State, and are situated wholly within the corporate limits of said city, which is of the second class; that act 224 of the Acts of 1931 provides that the attorney representing the municipality shall he the attorney for all improvement districts in the city; that appellants attempted to employ said Holleman as attorney to represent them, for which he was to he paid, and that such employment is illegal and without authority of law or of said intervener. The prayer was for an injunction against appellants and Holleman to prevent them from proceeding further as attorney and client, from collecting any further money or fees for representing appellants, etc. Appellants demurred to the intervention, which was overruled by the court, and, on their declining to plead further, decree was entered for appellee, declaring him to be the attorney for said districts and entitled to the emoluments and fees as attorney for said districts from October 16, 1931, from which is this appeal.

It is contended by appellants that act 224 of the General Assembly of 1931 is unconstitutional and void. It provides that, in all cities of the second class and incorporated towns, the attorney representing the municipality ‘ ‘ shall be the attorney for all boards and commissioners of all local improvement districts within said city or incorporated town.” It further makes it the duty of said attorney to advise with such boards at any time needed “and do all things enjoined upon him by said board of commissioners, and do and perform all legal duties pertaining to said formation and operation of said improvement districts. And shall represent said board of commissioners in all suits brought for or against said board of commissioners.” His compensation is fixed at such fees as may be agreed upon, and his total compensation in any one year in all improvement districts is limited to $1,200.

It is said, that the act is so vague, indefinite and uncertain that it is impossible to apply it to the affairs of local improvement districts, and that to give effect to the act it will be necessary for them to assume a legislative function. It is further argued that, while it is made the duty of the city attorney to perform all duties enjoined upon him by the boards of improvement, it does not provide that the board shall enjoin any duties upon him, and that it fails to provide any means by which to determine what fees shall be charged by or paid to the city attorney, nor any rule to determine what shall be a reasonable fee in any matter, and that all these things constitute the delegation of legislative authority in violation of article 5, § 1, Constitution of Arkansas. We do not agree with appellants in these contentions. The act was passed in the interest of economy in the organization and operation of improvement districts in cities of the second class and incorporated towns. It provides specifically that he shall represent all improvement districts in such municipalities, both in their formation and operation, and in all suits brought for or against them, and that such fees shall be paid as may be agreed upon, not to exceed $1,200 from “such districts in any one year.” This does not constitute the delegation of legislative authority.

Municipal improvement districts are under the supervision and control of the city or town council. They are required to make annual settlements showing all collections or disbursements. Crawford & Moses’ Digest, § 5718. On a settlement made, any taxpayer may file exceptions, and, whether filed or not, it is made the duty of the city council to examine same and disallow all unjust charges and credits, if any there be, and the council’s adjustment thereof is subject to re-examination in the chancery court. Crawford & Moses’ Digest, § 5719. And in suits for the collection of delinquent taxes, the attorney’s fee is fixed by the chancery court and taxed as costs against the delinquent property. The city attorney, being a city officer, elécted by'the people of the whole municipality, was a proper person in the view of the lawmakers to be made the attorney for all such districts, and no doubt the Legislature thought such an act would avoid the payment of extravagant attorney’s fees, as is illustrated in Martin v. Street Imp. Dist. No. 324, 167 Ark. 108, 266 S. W. 941, and Martin v. Street Imp. Dist. No. 349, 178 Ark. 588,11 S. W. (2d) 469. Boards of improvement are creatures of the city or town councils by virtue of legislative authority, and the Legislature has the right to prescribe the manner in which they shall perform their duties.

It is also said that the act violates § 4, art. 16, of the Constitution, which provides that the “General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law,” etc. This section of the Constitution has no reference to the fees of an attorney representing improvement districts, and the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, cited by appellants, is not in point. The Legislature does not fix the fees of the city attorney, nor has it attempted to fix the fees of such attorney while acting for boards of •improvement, except to fix the maximum he may be paid annually by all improvement districts. Another objection made to the act is that it is unequal in its application, and restricts the right to contract. Boards of improvement, being the creatures of the city or town councils through legislative authority, may be limited in their right to contract or otherwise by legislative authority.

It is finally insisted that, even though act 224 be constitutional, appellee does not plead facts sufficient to bring him within its provisions. We think appellants are wrong in this contention. The act was approved March 26,1931. It became effective ninety days after the Legislature adjourned, which would have made it effective sometime in June. By the decree of the court, it was made effective as to appellants October 16, 1931, and they are in no position to complain. The suits brought by Holléman were not brought until September 8, 1931. So any contract made with Holleman subsequent to the effective date of the act was without binding force, and appellee had the right to have it so declared.

Affirmed.


author: McHaney, J.

text:
    Mid-West Coal Company v. Henson.
    Opinion delivered May 2, 1932.

      Holland & Holland, Vincent M. Miles and W. L. Curtis, for appellant.

      Cravens ds Cravens, for appellee.
   McHaney, J.

Apparently because of an explosion in its coal mine, in which several lives were lost, in February, 1928, and in order to evade, if possible, liability therefor, the Mama Coal Company, a corporation, surrendered its charter on April 23, 1928. It did not own the mine, but leased same from the Western Coal and Mining Company, which lease had expired, or was about to expire. It did own some mining equipment. On the same day, and at the same meeting of stockholders convened to authorize a surrender of its charter, appellant, Mid-West Coal Company, was organized with the same stockholders, who subscribed for and were issued stock in the same amounts as in the Mama Coal Company, with the exception of Valentine Vervdck. He was killed in the explosion, and the stock held by him in the Mama was issued to his widow, Augustine Vervdck. The new company, Mid-West Coal Company, procured a new lease, took possession of the mine, machinery and equipment with the knowledge and consent of everybody concerned, and continued in the possession and use thereof until this suit was brought by certain creditors- of the Mid-West for the appointment of a receiver on February 13,1930. A receiver was appointed, and, with the consent of the corporation, took charge of the property. On March 21, the receiver filed his report and inventory of the property, showing cash-on hand of $197.42 and personal property invoiced at the value of $12,596.47. A few days later he applied to the court for permission to sell the property at private sale, in which all the appellants joined, with the exception of Mr. W. L. Curtis, who was made trustee for the Mama company on dissolution. The court refused to permit a private sale, ordered the property which had been inventoried by the receiver to be advertised for sale, and that the two highest bids be submitted to the court. It was advertised, and at the sale appellee Henson bid $6,200, and one Graham bid $6,000. Report was made to the court of these bids, and the Henson bid was accepted, and the report of sale approved and confirmed on April 15, 1930, he having paid his bid in cash. A bill of sale was executed and delivered to him at the court’s direction. Thereafter, on April 26, 1930, appellants, Curtis and Augustine Vervdck, iiitervened, setting up certain claims to the property sold to Henson, and asking that the sale be set aside. On May 5, appellant Templeton intervened therein for the same purpose. The court vacated its order of confirmation of sale. Thereafter a number of motions, demurrers, answers and cross-complaints were filed, and on a final hearing the. court dismissed all interventions, confirmed the sale, and the case is here on appeal.

We think the court correctly confirmed the sale. The creation of the new corporation, the Mid-West Coal Company, with the same stockholders owning and holding the same number of shares as in the old, amounted to substantially the same thing as changing its name from Mama to Mid-West Coal Company. It was simply an effort to evade possible liability for personal injury, but, whether it succeeded in that purpose or not, the Mid-West Coal Company was in effect a continuation of the Mama Coal Company. All the interveners were cognizant of all the facts, and not only participated therein, but consented thereto. They stood by, -with full knowledge, permitted a bona fide sale by the receiver to an innocent purchaser for value, and Vervdck and Templeton actually petitioned the court to permit the receiver to make a private sale. Templeton was the president of the Mama Coal Company. They permitted the sale to be advertised, the property sold, the sale confirmed, and the purchase money paid without objection, and with full knowledge of all the facts. They are therefore estopped from questioning the validity of said sale. There are so many facts in this case calling for the application of the doctrine of estoppel that we do not review them all. What we have said shows conclusively that it would be so manifestly inequitable and unconscionable to permit appellants to come in and upset a sale under such circumstances as to make the citation of authorities a work of supererogation.

The decree is correct, and is therefore affirmed.


author: Butler, J.

text:
    Continental Life Insurance Company v. Mahoney.
    Opinion delivered May 2, 1932.

      • Pace & Davis, for appellant.

      Chas. W. Mehaffy, for appellee.
   Butler, J.

The appellee was appointed by the Pulaski Chancery Court as commissioner to sell certain real property under foreclosure proceedings, and was directed by the court to publish the time, terms and place of sale in some newspaper published in Pulaski County, Arkansas, having a bona fide circulation therein. The appellee selected a publication in Little Bock, known as The Daily Legal News, in which to publish the notice, and this suit was instituted to restrain him from publishing the notice in that paper, on the ground that The Daily Legal News was not a newspaper having a bona fide circulation within the meaning of § 6807 of Crawford & Moses’ Digest, providing that all advertisements and orders of publication required by law or order of any court, etc., “shall be published in some newspaper and having a bona fide circulation in the county in which the proceedings are had.”

In the court below it was stipulated that The Daily Legal News is printed and published in the city of Little Rock, Pulaski County, is a member of the Associated Court & Commercial Newspapers of the United States, and has been classified in the post office at Little Rock as second-class mail matter since December 15, 1931. It is not a subscriber to the Associated Press News, and has no correspondents and reporters outside of the city of Little Rock. It only occasionally publishes news of a general nature, but specializes in news relating to the courts, real estate, statistical news and that concerning business transactions in Pulaski County. It carries notice of incorporation matters filed in the county clerk’s office and the office of the Secretary of State, and publishes a list of marriages and births in Pulaski County, the daily market report, local weather forecast, a list of automobile licenses issued, building permits, and notices of fires occurring in the city of Little Rock. It is published daily excepting holidays and Sundays, and its subscription rate is $20 per year. It is a four-page publication, 14 xll inches in size, with four columns to each page. It has three hundred and four subscribers confined to business and professional men and associations of that character. It is mailed to twenty cities other than Little Nock and North Little Nock and to eleven other states, and is carried for sale at Peckham’s News Stand on Main Street in the city of Little Nock. It is estimated by the publishers that around a thousand persons have access to, and read, the paper each day, but it is not shown how many of the papers are sold from the news stand.

The above is a summary of the stipulation, which contains sufficient facts to show the character of the publication. Upon these facts the court found that The Daily Legal News was a newspaper within the meaning of the statute and the order of the court, and denied the relief prayed.

After an examination of the authorities called to our attention by the appellant and the appellee, we are of the opinion that the contention of the appellant ought to have been sustained, and that the trial court erred in holding otherwise. The primary purpose for the printing of legal advertisements and notices of sale of property under orders of a court is to give to the notice the widest publicity practicable. Therefore the definition of a newspaper, within the meaning of the statute, is to be taken In its popular sense, which is one to which the general public would resort in order to be informed of the news and intelligence of the day, and which is published at stated intervals and carries reports of those happenings of general importance and interest to the ordinary individual. Kerr v. Hitt, 75 Ill. 51; Lynn v. Allen, 145 Ind. 584, 44 N. E. 646, 33 L. R. A. 779, 57 Am. St. Rep. 223; In re Herman, 183 Cal. 153, 191 Pac. 934; Hanscomb v. Meyer, 60 Neb. 68, 82 N. W. 114, 48 L. R. A. 409, 83 Am. St. Rep. 507; Times Printing Co. v. Star Publishing Co., 51 Wash. 667, 99 Pac. 1040, 16 Ann. Cas. 414.

An examination of the cases cited by the appellee, and particularly those contained in the annotation at page 542, 68 A. L. R., discloses no case that departs from the general definition as stated above. In Kerr v. Hitt, supra, in holding that a certain publication was a newspaper of general circulation, the court in effect said that, although the chief object of the publication was printing notices of legal news, yet it contained besides this other items of news of general interest; and in Pentzel v. Squire, 161 Ill. 346, 43 N. E. 1064, 52 Am. St. Rep. 373, it was held that a weekly publication containing reports of decisions of various courts and a digest of cases, but also containing news of a general nature of current events and of general importance to the public, was a newspaper within the meaning of a statute similar to ours. In all the cases upon which the appellee relies, the courts, in holding a publication to be a newspaper in which publication of legal notices was authorized, was such a one as carried “literature of a general kind and a limited amount of general news and current events,” and, “besides court proceedings, short telegraphic dispatches of general interest. ’ ’

As stated in 20 R. C. L., at page 203, cited by the •appellant: “It is difficult, if not impossible, to determine with clearness and exactness where the lines of demarcation should be drawn between a newspaper, in a legal and common acceptation of the term, and the numerous publications devoted to some special purpose, and which circulate only among a certain class of the people, and which are not within the purview of statutes requiring publication of legal notices in some newspaper.”

We think the test in determining the question is whether or not the publication regularly carries the record of events occurring of general interest to the public as a whole, and those publications which do carry such items might be properly designated as newspapers, although some special purpose or class of happenings be the chief object to which the publication is devoted. The reason for the test we have suggested becomes apparent when the object for which notices are printed is considered, i.e., that they he given wide and general publicity, and publications cannot reasonably be expected to be generally read when they have no news of general interest, but are restricted to events of interest only to a few classes. There are numerous cases which support this view, among which are the cases cited, supra, and Beecher v. Stevens, 25 Minn. 146; Reagan v. Duddy, 25 Ky. 1664, 78 S. W. 430; Times Printing Co. v. Star Publishing Co., 51 Wash. 667, 99 Pac. 1040, 16 Ann. Cas. 414.

An examination of. a copy of The Daily Legal News, which is exhibited, shows that that particular issue carried no news items of a general nature, and it was stipulated that ‘ ‘it only occasionally publishes news of a general nature” This stipulation, when considered in connection'with the news in which the paper specialized and the subscription price of $20 per year, warrants the conclusion that it was intended for only limited circulation among certain classes of our citizens, and is devoted to a special purpose, and therefore is not a newspaper as contemplated by the statute. Having concluded that The Daily Legal News is not a newspaper, it is unnecessary to determine whether it had a circulation within the meaning of the statute.

For the error indicated, the decree is reversed, and the canse remanded with directions to grant the relief prayed.


text:
    Wizard, Inc., v. Feldman.
    Opinion delivered May 2, 1932.

      A. M. Coates, for appellant.

      Bevens S Mundt, for appellee.
   Butler, J.

The appellee, Herman Feldman, is engaged in the wholesale supply business in the city of Helena, Arkansas, and purchased from the appellant, Wizard, Inc., a quantity of insecticide called “Flyded.” He signed a written order for the merchandise, which was accepted by the appellant, and the merchandise shipped on March 1st, in accordance with the terms of the order, and received by appellee in due time. The total sum for the goods ordered was $603.04, due within thirty days. Payment not having been made within this time, suit was instituted, and defense was made that the merchandise was purchased with the express agreement that it was to be held by Feldman for the account of the appellant, which agreed to send its representative to Helena for the purpose of putting on an advertising campaign, and with the further agreement that the merchandise was to be sold to the trade by the representative of the seller. It was alleged that the latter failed to comply with this agreement, which breach Feldman pleaded as a complete defense.

Subsequently, by amended answer, he interposed the additional defense that the merchandise was sold as a fly-killer, and under an implied warranty that it was fit for the purpose of killing flies, and that it wholly failed and was unfit for the purpose for which it was purchased.

On the trial, this defense was abandoned. There was .a verdict and judgment for the appellee, from which judgment is this appeal.

The appellant introduced the original order for the merchandise, which recited that it was sold to the appellee and the purchase price of the same, and that “no terms valid not stated on this order: not subject to countermand.” The only testimony for the appellee was that of himself and an employee. They testified that the contract was signed in duplicate, the original being retained by the salesman and a copy given to Feldman; that, before he signed the order, the salesman stated that he would put on an advertising campaign, and that “he would come down and conduct a specialty campaign to sell the goods. ’ ’ They testified that, after having signed the order, Feldman called attention to the fact that there was nothing said in the order about the representative of the seller conducting the specialty campaign, and that the salesman, then stated that he was in a hurry then but would write the stipulation regarding the specialty campaign into the order before sending it in. They testified further that the goods were received, that they began to attempt to sell the same, and did sell some of it — -how much not being shown by the testimony. The employee stated that it was a small percentage. ’¡Both of them testified that the salesman who had taken the order came back to Helena after the goods had been received, and said that he was going out the next morning “to do some work for us, but he didn’t do it”; that they received a.letter from him in the morning mail to the effect that he was called out of town, but would be back to sell them again; that he never came back.

A letter was introduced in evidence from F'eldman to the appellant, dated July 19, 1930, in which, after referring to some previous letters, he stated that he was unable to sell the insecticide, and that in “about a month or more” the salesman came and told the employee he had come to sell that stuff, but had gone away without doing so, and asked that the appellant take back the goods. He complained that the customers would not pay for the goods they purchased — “they don’t pay,-or they return it, or they wait till we pick it up ’ ’ — and in conclusion asked the appellant for shipping instructions, and notified it that he was holding the goods for it.

The court instructed the jury that the burden was upon the defendant to establish the defense set up, namely, “that at the time the contract was entered into between the plaintiff and the defendant that the agent of the plaintiff agreed to insert certain things in the contract, as shown by the evidence, and did not do it as he agreed to do before sending in the order; if you find that the agent agreed to write that into the contract and failed to do it and sent it in, and that the company failed to comply, although you might find that this addition had not been inserted in the contract. If you find the company sent a man here to help them advertise it and sell it; if you find they sent a man here to advertise it and sell it, then you should find for the plaintiff. If you find that the plaintiff took the contract with the agreement with the defendant that he would write that in the order, and that he failed to do it, and that the company failed to send the agent down, here to assist the defendant in making the sales, according to the clause to ¡be written into the contract, then you should find for the defendant.”

The record shows that counsel for the plaintiff requested the court to orally instruct the jury to the ‘ ‘ extent that if Feldman sold a part of the merchandise in question, that such was a ratification of the contract, and they should find for the plaintiff, even though the salesman had agreed to write additional terms in said contract.” The court refused-“said instruction because the testimony did not show whether the sales were made before the agent came down here and failed to put on the campaign advertising it or after he came. ’ ’

Upon the instructions given and the testimony adduced, the case was submitted to the jury, which returned a verdict in favor of the appellee. Judgment was entered in accordance with the verdict, from which is this appeal.

It is insisted by the appellant that the testimony of Feldman and the employee is so unreasonable as to make it obviously impossible for it to be true. While it may be improbable, we do not think it is of such a nature as to render it reasonably impossible for it to be true, and, under the settled rule that the jury are the judges of the credibility of the witnesses, we have no right to disregard ' that testimony, it not being of the character of that rejected by this court in Waters Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342, and Platt v. Owens, 183 Ark. 261, 35 S. W. (2d) 358.

It is next insisted that the testimony was incompetent because it tended to vary and add to the written provisions of the order. On the other hand, the appellee con- - tends that the purpose of the evidence was not to vary or contradict the terms of the contract, but to show that the contract offered in evidence by the appellant was not in fact the contract entered into, and, to sustain this position, relies on the cases of Barton-Parker Mfg. Co. v. Taylor, 78 Ark. 586, 94 S. W. 713; Pickler v. Arkansas Packing Co., 112 Ark. 33, 164 S. W. 764; Worthen v. Stewart, 116 Ark. 306, 172 S. W. 855; White Sewing Machine Co. v. Atkinson & Son, 126 Ark. 206, 190 S. W. 111; Case Threshing Mch. Co. v. Southwestern Veneer Co., 135 Ark. 607, 205 S. W. 978; Pictorial Review Co. v. Rosen, 171 Ark. 720, 285 S. W. 385; New Home Sewing Machine Co. v. Westmoreland, 183 Ark. 769, 38 S. W. (2d) 314.

Without reviewing these cases at length, it may be said that they are distinguishable from the case at bar, for in all of them the element of fraud entered into the procurement of contract and were conditions precedent to their validity. Here the contract was not induced by any fraudulent misrepresentation as to character of the. article sold. It is unambiguous, executed in duplicate, signed by Feldman, and the copy kept by him. It negatives his contention that the goods were shipped to him for the account of the seller (Reuter Milling Co. v. McKinney, 170 Ark. 84, 278 S. W. 963), and shows an unconditional contract of purchase and sale. The testimony relative to the agreement to do specialty work and assist in the sale tended at best to establish merely an independent agreement collateral to the main issue, and was a promissory representation of an intention as to some act in the future. Such representations are not conditions precedent to the validity of the contract, and the failure to perform them does not entitle the buyer to disavow the contract and refuse the payment of the purchase price. Similar representations as in the instant case were considered in the cases of Whitmore v. Scoggin, 147 Ark. 236, 227 S. W. 610; Stevens v. Chatfield, 230 Ky. 194, 18 S. W. (2d) 1006; Stevens v. Smotherman, 223 Mo. App. 1078, 24 S. W. (2d) 670; Security Savings Bank v. Capp, 193 Iowa 278, 186 N. W. 927; Marshall Mill Co. v. Hintz-Cameron Co., 156 Minn. 301; Fleming v. Gerlinger Motor Car Co., 286 Or. 195, 168 Pac. 289. And in all of them the views we have reached were adopted. The court therefore erred in its declaration of. law, and the judgment is reversed, and the cause remanded.


author: Hart, C. J.

text:
    Elsass v. Southwestern Transportation Company.
    Opinion delivered May 9, 1932.

      Holifield \& Upton, for appellant.

      Garter, Jones <& Turney and Lamb & Adams, for appellee.
   Hart, C. J.

W. H. Elsass prosecutes this appeal to reverse a judgment on a directed verdict against him in favor of the Southwestern Transportation Company and Jimmie Creason. According to the evidence on behalf of the appellant, he and his son lived about a mile west of Rector, Arkansas, and had a dog killed by a bus belonging to the 'Southwestern Transportation Company which was being driven by Jimmie Creason at the time of the accident on October 24, 1930. The appellant and his son were engaged in driving a cow from, one place to another. They carried along a collie dog to help them. The dog had been trained to. drive stock and was worth $100. Near the scene of the accident the main highway ran parallel with the track of the Cotton Belt Railroad. They drove the cow along- the main highway until they reached a byroad where they desired to cross the railroad. The crossing at that place was blocked by a freig-ht train. The son and the cow remained on one side of the highway, and the father went across the public road to talk with a neighbor who was in a wagon and also waiting to cross the railroad. The dog followed the father and took his place under the wagon. They saw the bus which killed the dog cross a railroad spur and approach them at the rate of ten or twelve miles an hour. After the bus crossed the railroad spur, it traveled somewhat slower. When it was opposite the place where the wagon was on one side of the road and the cow on the other, the dog started back across the highway, and, when near the middle of the hig-hway, was struck by the bus and killed.

The testimony on behalf of the father and son was substantially as above stated. The driver of ’the bus testified that he was driving a Buick coach which was about 18 feet long and 7% feet wide inside the body. It was a twelve-passenger bus. He slowed down after crossing the railroad spur, and saw the cow and boy on one side of the road and two men with a wagon on the other. The dog was under the wagon, and the driver of the bus did not see it any more until it was struck. He slowed down to pass between the cow and the wagon because he didn’t know what the cow or the team, would do. He could not see on the ground near the bus on account of the size of his motor. The dog must have darted suddenly from under the wagon as the bus passed between the wagon and the cow. The wagon was only a few feet away from the side of the road.

The law of the case is stated in Harris v. Hicks, 143 Ark. 613, 221 S. W. 472, where it was held that, in addition to the requirements of o.ur statute limiting the speed of motor cars and requiring the driver to stop on approaching a frightened horse, an automobile driver need exercise only ordinary care in operating his car. In the application of this settled principle of law to the facts of the instant case, we do not think the trial court erred in directing a verdict in favor of the appellees. The undisputed evidence shows that, as^the driver of the bus approached the place on the highway between where the wagon with the team of horses was on one side of the road and the cow on the other, he slowed down in order to prevent an accident from the horses becoming frightened or the cow coming- into the road in front of the bus. When he saw the dog, it was under the wagon, and he could not reasonably anticipate that it would dart suddenly into the road ahead of the bus.

We are of the opinion that the undisputed evidence shows that the killing of the dog was an accident, and that there was no fault on the part of the driver of the bus or on the part of the owner of it. It follows that the judgment of the trial court is correct, and it is therefore affirmed.


text:
    National Savings & Loan Association v. Beasley.
    Opinion delivered May 9, 1932.

      Owens •& Ehrmam, Ada Marett Carter and John M. Lofton, Jr., for appellant.

      Clary & Ball, for appellee.
   Hart, C. J.

The only issue involved by this appeal is whether or not the chancery court erred in confirming a sale of real estate under a mortgage foreclosure. The record shows that the National Savings & Loan Associa- ■ tion brought a suit in equity against Adolph Daniel to foreclose a mortgage on certain lots in the city of "Warren, Arkansas. Judgment by default was rendered in favor of the plaintiff against the defendant for $2,434.85 with interest at the rate of nine per cent, per annum from November 1,1930. Tift decree provided that, if the judgment was not paid within twenty days, the clerk of the court should be commissioner to make the sale according to the terms of the decree.

The decree was rendered on the 2d day of February, 1931.' One of the attorneys for the plaintiff asked the clerk if he would notify plaintiff of the exact date of sale, and he promised to- do so. On the 21st day of February, 1931, she wrote him asking for the exact date of sale. She inclosed a self-addressed envelope for reply, and her letter had a return card on it. Having- received no reply to this letter, on March 10,1931, she again wrote the clerk about the matter and did not receive a reply to this letter. She wrote again on April 15, 1931, and received a reply stating that the sale had been made on March 28, 1931. This was duly confirmed by the court over the objection of the plaintiff.

Among the grounds for refusing to confirm, the sale, plaintiff set up that the property had been sold for an inadequate price, and that, if it had known the day of sale, it would have had a representative there who- would have bid the mortgaged indebtedness for the property. Other evidence for the plaintiff tended to show that the property was worth $2,500, and that it only sold for $750. It was also shown that the plaintiff offered to relinquish its indebtedness against the defendant if the latter would execute a quitclaim deed to the property. This offer was refused.

It was shown on behalf of the purchaser at the foreclosure sale that the property was not worth more than $1,000. The clerk of the chancery court and his deputy both denied receiving the first two letters written them by the plaintiff’s attorney relative to the date of sale. They stated that they certainly would have answered the letters, had they been received. The clerk testified that the plaintiff’s attorney might have asked him about notifying the plaintiff of the exact date' of sale, but that he did not remember it. He did not deny her testimony. The decree was had at the first term of the chancery court after his election.

A majority of the court is of the opinion that the trial court erred in confirming the.sale to the purchaser. They think that the case falls squarely within the principles of law to the effect that, where the sale is for an inadequate consideration and where the circumstances attending the sale work out a harsh result against an interested party, the court should refuse to confirm the sale, although the purchaser himself had been guilty of no fraud or misconduct in the matter: They think that the fact that the commissioner agreed to notify the plaintiff’s attorney of the day of sale and did not do so brings the case within the principles of law so often applied by this court. Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445; Chapin v. Quisenberry, 138 Ark. 68, 210 S. W. 341; Bauer v. Wade, 170 Ark. 1020, 282 S. W. 359; Hawkins v. Wood, 179 Ark. 845, 18 S. W. (2d) 371, and cases cited.

Mr. Justice Humphreys, Mr. Justice Butler and the writer are of the opinion that it was the duty of the plaintiff to keep itself informed of the progress of the case, and that it was negligent in not taking other means to ascertain the date of sale after it did not receive a reply to the letter of March 10, 1931, the sale not havingtalcen place until March 28, following*.

It follows that the decree of the chancery court must he reversed, and the cause will he remanded for further proceedings in accordance with this opinion, and not inconsistent with the principles of equity.


author: Smith, J.

text:
    American Building & Loan Association v. Memphis Furniture Manufacturing Company.
    Opinion delivered May 9, 1932.

      Robinson, House <& Moses and W. R. Roddy, for appellant.

      Wilson, Kysér, Armstrong Allen, for appellee.
   Smith, J.

Appellant, a building and loan association, hereinafter referred to as the association, filed a motion to vacate a decree of the Poinsett Chancery Court and to set aside an order approving a sale which had been made pursuant thereto, and from a decree of the court sustaining a demurrer to this motion is this appeal.

From this motion and the exhibits thereto the following- allegations appear: H. W. Cole and S. W. Cole had been engaged in business at Marked Tree. Their business house was destroyed, and they made application to the appellant association for a loan of $10,000 with which to rebuild. The application therefor recited that the old building had been, and the new building — which was to be brick — would be, located on lots 4 and 5, block 2, St. Francis Addition to tbe town of Marked Tree, and they agreed in the application to execute a deed of trust which would be a first lien on the land and the building then under construction, but not completed. The loan was made and the deed of trust was executed, which- described the property as lots 4 and 5, block 2. This instrument was filed for record July 16,1926, and was duly recorded.

At the time this loan was made the Coles were largely indebted to appellee, the Memphis Furniture Manufacturing Company, hereinafter referred to as the furniture company, and on July 27, 1926, before the completion of the building, they executed a mortgage to appellee furniture company to secure this indebtedness. The land described in this instrument was referred to as tract No. 1 and as tract No. 2. Tract No. 1 consisted of farming lands. Tract No. '2 covered property in the town of Marked Tree and was described by metes and bounds. The description employed included lots 4 and 5, block 2, and other lots in the same block. The mortgage to the furniture company contained the following recital: ‘ ‘ That tract 2 is for the purpose of securing an indebtedness of $20,000 to the Memphis Furniture & Manufacturing Company, as evidenced by a promissory note of even date, due on the 27th day of July, 1927, with interest at the rate of 8 per cent, per annum from date until paid. That this mortgage on tract 2, however, is subject and second to a prior mortgage given the Arkansas Building & Loan Association for $10,000.”

On August 25, 1930, a suit was filed by the furniture company in the Poinsett Chancery Court to foreclose its mortgage, and the association was made a party thereto. The complaint contained the following allegation: * ‘Plaintiff avers that the real estate hereinabove described, as it is informed, is incumbered by indebtedness owing to the defendant, American Building & Loan Association, which may be secured by a lien superior to the lien of the mortgage first hereinabove mentioned, but plaintiff does not admit that such is true, and calls for strict proof with respect to the claim of said American Building & Loan Association and the priority of its lien. ”

The association filed an answer, alleging its prior lien on lots 4 and 5, block 2. When the answer was filed, it was conceded by the attorney for the furniture company that- the lien of the association was prior and superior, and the attorney for the association agreed that a decree of foreclosure of plaintiff’s mortgage might be entered, provided the rights of the association were protected. The decree was entered on May 4, 1931, which declared the priority of the lien of the association on lots 4 and 5, block 2, and this decree was approved by the respective attorneys before its entry.

Pursuant to this decree, a sale was had by the commissioner appointed for that purpose, at which sale the furniture company purchased lot 6, block 2, for $4,000. This was one of the lots embraced in the description employed in the mortgage to the furniture company. The report of this sale was approved, and the sale confirmed in vacation, that order reciting that it was done by consent of parties. The attorney for the Coles approved this order, but the attorney for the association was not advised of it, and entered into no agreement concerning it.

Before the final adjournment of the term of court at which the decree of sale had been rendered and the report of sale thereunder had been confirmed, to-wit, about July 1, 1931, the association discovered that the building which it had furnished the money to erect had, by mutual mistake of the parties as to the location and boundary lines of lots 4 and 5, block '2, been erected almost entirely on lot 6, block 2, and that only a small portion of the building was located on lot 5, block 2, and that the remainder of lot 5 and all of lot 4 were vacant except for a very small frame building.

The complaint alleged that the full amount of the loan was used in the construction of the brick building, and that it was the intention of all the parties to the deed of trust to the association that this instrument should cover the brick building and the land on which it had been erected. It was further alleged that “at the time the Memphis Furniture Manufacturing Company took its mortgage, it had knowledge of the first mortgage for the sum of $10,000 covering the brick building, and it was not the intention of the parties executing its mortgage, nor were the agents and employees of the Memphis Furniture Manufacturing Company under the impression at the time, that its mortgage was a first lien on any of the land conveyed by it. ’ ’

It was further alleged that, at the time of filing its answer, the association was ignorant of the true location of the brick building and believed that it was located on lots 4 and 5, and its ag’reement for the entry of the decree of foreclosure was induced by this misapprehension, and information to the contrary was not obtained until after the confirmation of the report of sale.

The motion to vacate the decree of sale and the order of confirmation was filed August 15, 1931, and, by way of cross-complaint against the original plaintiff and the defendant, Coles, it was prayed that the deed of trust to the association be reformed to comply with the intention of the parties so as to cover lot 6, block 2, the land on which the brick building was erected.

A demurrer to the motion was heard and sustained on August 28, 1931, an adjourned day of the same term of court at which the original decree of foreclosure had been rendered.

G-. O. Campbell was made a party to the original foreclosure proceeding, and filed an answer, in which he alleged that the Coles had previously executed to him a mortgage on lots 2 and 7, block 2, in St. Francis Addition, and that he had acquired the title to these two lots by the foreclosure of his mortgage, which proceeding antedated the execution of the mortgage to plaintiff. Campbell’s answer further alleged: “That in executing said mortgage it was the purpose and intention of the grantors and grantees therein that said mortgage should describe and convey lots 3, 4, 5 and 6, in said St. Francis Addition to Marked Tree; that in fact said mortgage extends to and includes a part of one street in front of the buildings on said real estate and a part of the right-of-way of St. Louis-San Francisco Bailway Company, a part of lot 7, owned by this defendant, and a part of Broadway Street, in Marked Tree; that the description as written in said mortgage to plaintiff is erroneous; was by mutual mistake of the grantors and grantee therein, and should be corrected and reformed. A correct plat of said real estate is hereto attached as Exhibit A and made a part hereof, and showing the location of lots 1 to -7, inclusive, and also showing by metes and bounds the description of real estate described in said mortgage executed to the plaintiff.”

The court, in the foreclosure decree, found the facts to be as alleged by Campbell, and that it was not the intention of the Coles to include any part of lots 2 and 7, block 2, in their mortgage to the furniture company.

For the affirmance of the decree from which this appeal comes, it is insisted that the decree was entered by the consent of all parties, and that, if any mistake exists as to the true location of the brick building, it should have been discovered when Campbell filed his answer praying reformation of the description employed in the mortgage from the Coles to the furniture company.

It is said that, in sustaining the demurrer, the chancellor announced that he was doing so and denying the relief prayed because it had not been asked in time, and for that reason only.

It thus appears that, while the furniture company mortgage has been foreclosed, and a sale thereunder had, there are no intervening rights of third parties. The furniture -company became the purchaser at the sale, and it now claims as owner, and not as mortgagee, and it is very definitely alleged that the furniture company took its mortgage, through which its title was acquired to this property, with knowledge of the prior incumbrance in favor of appellant, which was duly of record.

The power of the chancery court to reform instruments where, through mutual mistake, they do not express the agreement of the parties, has been often exercised, and is not here questioned. The essence of the furniture company’s insistence is that the request comes too late, especially as the decree under which it claims was entered by consent.

Properly considered, the decree was not entered by consent; we think under the facts alleged the consent went only to its form. In any event, such consent as was given was the result of mutual mistake. Under the allegations of the motion, the furniture company took its mortgage with knowledge of the fact that the association had a deed of trust in the sum of $10,000' covering the brick building*, and this instrument was of record when the furniture company’s mortgage was executed. There is nothing in the pleadings to indicate that the furniture company knew the exact location of the brick building and withheld that information from the association while obtaining its consent to the entry of the decree which would destroy its lien. But, if so, the association would be entitled to the relief prayed under the allegations of the petition. It is to be remembered that the motion was filed at the same term of court at which the decree was rendered, and the rights of no third parties have intervened. It is settled law that courts have control over their orders, judgments and decrees during the term at which they were made, and for sufficient cause may, upon application or upon its own motion, modify or set them aside. Underwood v. Sledge, 27 Ark. 296; Democrat Ptg. & Litho. Co. v. Van Buren County, 184 Ark. 974, 43 S. W. (2d) 1075.

The case of Saleski v. Boyd, 32 Ark. 74, was one in which an appeal had been prosecuted, as the instant case, from the refusal of the chancellor to set.aside a decree, a motion to that effect having been made during the term at which the decree was entered, and while it was under the control of the chancellor. In reversing* the action of the chancellor, it was there said: .“If it appear that the attorney consented to the decree in fraud, or by collusion with adverse counsel, or under a mistake or misapprehension of law or facts, and that the rights and interests of his client were thereby seriously compromittecl, the court will open the decree.”

There was no avoidable delay on the part of the association in filing its motion, and it is alleged that this was done as soon as the association was advised of the facts.

It is insisted for the affirmance of the decree that the answer of Campbell, hereinabove referred to, should have apprised the association of the mistake before the rendition of the decree. But we do not think so. It was not, and is not, denied that the furniture company liad a valid mortgage on lots 3, 4, 5 and 6, and the effect of Campbell’s answer was to call attention to the fact that the description by metes and bounds which had been -eim ployed not only covered these four lots, but lots 2 and 7 also and a part of a street and of a railroad right-of-way, and that the Coles had lost their title to lots 2 and 7 through the prior foreclosure proceeding. It does not appear that there was anything about the plat which Campbell filed which would have shown the location of the brick building, and Campbell was not at all concerned or interested in this building and prayed no relief having any relation to it. The relief sought and obtained by him was to have his lots 2 and 7 excluded from the metes and bounds description which appeared in the mortgage to the furniture company.

Under the facts alleged the association was entitled to the relief prayed.

The case of Beckius v. Hahn, 114 Neb. 371, 207 N. W. 515, 44 A. L. R. 78, involved the right of reformation as against general creditors, and the annotator makes the following summary of the numerous cases there cited in his note: ‘ ‘ And while equity, as a g-eneral rule, will not exercise its jurisdiction to reform a written instrument to the prejudice of the intervening rights of bona fide purchasers or incumbrancers without notice of any equity of reformation, it will exercise jurisdiction in this respect as against subsequent purchasers or incumbrancers who obtained their title or lien with notice of an exists ing’ equity of reformation, or who, for other reasons, do not stand as Iona fide purchasers or incumbrancers for value, in the same manner and to the same extent as it would between the original parties.” See, also, Sherwin-Williams Co. v. Leslie, 168 Ark. 1049, 272 S. W. 641.

The decree of the court below will therefore be reversed, and the cause will be remanded with directions to overrule the demurrer.


text:
    Crowell v. Seelbinder.
    Opinion delivered May 9, 1932.

      Edgar Lee Matlock, for appellant.

      B. S. Wilson, for appellee.
   Smith, J.

Appellants brought this suit in ejectment to recover from appellees the possession of a lot in the town of Yan Burén. Mrs. Emma B. Crowell, who was the mother of appellants, took an estate for life in the lot under the will of her father, with remainder over to her children. After the life estate had vested in Mrs. Crow-ell, she attempted to convey the fee title to B. J. Brown, and, by mesne conveyances, the title passed to the. father of appellees, from whom they inherited the lot.

It is conceded that Mrs. Crowell .owned only a life estate, and that appellees acquired such title as she owned. The cause was transferred to equity for an accounting, where the chancellor found that Mrs. Crowell’s successors in title had acquired her title in good faith, and that, believing themselves to be the true owners thereof, they had improved the property. Without discussing the testimony, we announce our concurrence in the finding of the court below that appellees and their predecessors in title had color of title to the lot, and, believing themselves to be the owners thereof, had peaceably improved it, thereby enhancing its value, and they are therefore entitled to recover this enhanced value, pursuant to the provisions of § 3703, Crawford & Moses ’ Digest.

As has been said, the cause was transferred to equity for an accounting as. to the value of the rents, on the one hand, and as to the amount of taxes and insurance paid and as to the enhanced value, on the other, and, without making special findings on any of these questions, the court found that appellants were entitled to judgment for the possession of the land, but rendered judgment against them'for $959.27, and ordered that no writ should issue for the possession of the lot until this sum had been paid pursuant to § 3704, Crawford & Moses’ Digest, and this appeal is from that decree.

The excellent briefs of opposing counsel review many of the cases which have dealt with the legal questions here involved, and which have definitely settled those questions, except only those relating to proper credits to be allowed for improvement taxes paid.

As we understand the decree, the court allowed appellees credit, not only for the enhanced value of the property, but also for the cost of certain repairs made for the convenience of a tenant who occupied the building which a predecessor of appellees in the title had built, and also allowed credit for certain insurance premiums paid by appellees, and also refused to charge appellees for certain rents for the reason that they had failed to collect them.

In the case of McDonald v. Kenney, 101 Ark. 9, 140 S. W. 999, the court said that the “Betterment Act” (act 69, Acts 1883, page 106), appearing as § 3703, et seq., Crawford & Moses’ Digest, had established an arbitrary standard to adjust the equities between persons who, having color of title to real estate, had in good faith improved it, and had later been evicted because of the failure of their title. That the true owner was allowed to recover rents for the limited period of three years only preceding the recovery of the lands, but that the statute “also arbitrarily allowed all rents issuing from the property during that period, both from the land and the improvements thereon during those three years,” and that “the rents are fixed upon a basis of annual periods, and the interest recoverable thereon should therefore be calculated according to such annual periods, beginning at the end of each annual period.”

The same case also held that, while the cost of making the improvements may be taken into consideration in arriving at their value, yet the cost is not necessarily controlling. The thing to be ascertained is value, and not cost. This subject was exhaustively considered in the opinion in the case of McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, and need not be here enlarged upon.

In that case it was said that the allowance for improvements was made upon the ground that they passed into the hands of -the person recovering them as a new acquisition, and are only a new acquisition by him to the extent of their value at the time he recovers or obtains possession of them, and their value at that time is to be allowed, and nothing more. Summers v. Howard, 33 Ark. 490; Greer v. Fontaine, 71 Ark. 605, 77 S. W. 56. It was there also said that “the value thereof is based upon the enhanced value which these improvements at the time of the recovery impart to the land. ’ ’

The cost of the repairs should not therefore have been allowed as a separate item, but should have been considered in conjunction with other testimony tending to show the extent to which the cost of these repairs had enhanced the value of the land.

In the case of McDonald v. Kenney, 101 Ark. 9, 140 S. W. 999, it was said that, “If the vacant lots had a rental value, the defendants are chargeable therewith also, because they were withholding same from the true owner.” We therefore hold that appellees’ failure to collect portions of the rent from their tenants in possession does not relieve them from liability therefor. They are liable for such rental value as the property possessed, whether rents were collected or not, for the reason stated in the McDonald case, supra, to-wit: “because they were ■withholding the same from the true owner.”

The case of McDonald v. Rankin, supra, is decisive of appellees’ claim for insurance paid. It was there held (to quote a headnote) that: “Where the purchaser of the land at a judicial sale which was subsequently held void insured improvements thereon and collected the insurance money after the. property was destroyed by fire, she will not be held to account therefor to the owner of the land, as the insurance contract was a personal one.” In the instant case no fire occurred, and the insured buildings stand undamaged by fire, but that fact does not affect the legal principles which control. The insurance contract for which appellees paid was a personal contract for their own benefit, and they therefore have no right to charge the premiums paid to appellants. See also Roesch v. Johnson, 69 Ark. 30, 62 S. W. 416; Langford v. Searcy College, 73 Ark. 211, 83 S. W. 944.

The most difficult question .presented on this appeal is that of the allowance to be made appellees on account of improvement district taxes paid. The property is in several different improvement districts, in all of which the betterment assessments were distributed over a period of years payable in annual installments.

In the case of Hicks v. Norsworthy, 176 Ark. 786, 4 S. W. (2d) 897, we said that “the assessments for permanent improvements must be ratably and equitably apportioned between the life tenant and the remainder-man,” and that holding was reaffirmed in the case of Kory v. Less, 180 Ark. 342, 22 S. W. (2d) 25, where we said that “no rule could be laid down that would of itself determine the proportion or percentage that each party should pay in all cases.” We there cited 21 C. J. 958, and 17 R. O. L. 639, where rules of apportionment were announced which had been arrived at in the construction of statutes peculiar to the jurisdictions in which the cases had originated, but none of which, so far as we were advised, are identical with our own statute. In some of these jurisdictions the special taxes are not based upon enhanced value, while we have uniformly held that our special taxes have no other basis. The thing’ assessed with us is not the value of the property, but the estimated enhancement in value which will result from the construction of the proposed improvement. While these improvements, theoretically at least, are permanent in character, they usually require maintenance and replacement. The theory of our law is that the improvement, by enhancing the value of the use of the property, will enhance its market value, and it is this enhanced value which we tax in our improvement districts. For instance, a drainage canal makes land more arable and tillable; a sidewalk or a street makes property more accessible; sewerage and water make property more sanitary, and the value of the property which has acquired these facilities is enhanced, and the life tenant, during his possession, enjoys these benefits, and what could be more just and equitable than that he should pay for these benefits ratably while he is enjoying them. It is a matter of eommon knowledge that these improvements are paid for with the proceeds of bonds. Onr reports are full of such cases, and these bonds are usually payable over a period of twenty years, and but few of them bear interest at a rate less than five per cent. It does not appear equitable to allow the life tenant to enjoy the benefit of the improvement and pay interest only on the annual installments of benefits, thereby imposing upon the remainder-man the burden of paying the principal debt, when the improvement, lacking maintenance, might, and in many cases would, be destroyed by age and use.

We are therefore of the opinion that, when the payments for the improvement are distributed over a considerable number of years, as we understand the facts to be in the instant case, a ratable and equitable distribution of this burden requires the life tenant to discharge the annual assessments during each year of his occupancy. A case might arise where, under facts peculiar to it, this would not be equitable, but, in the absence of special equities, we announce this as the rule to be generally applied. This rule appears to us to be equitable in ordinary cases,-and possesses the quality of simplicity. There should be a general rule for the determination of such questions, and we think the rule announced will work justice in ordinary cases.

The recognition of the necessity for a general rule to determine the relative rights of the true owner of land and those of an occupant who, believing- himself to be the owner thereof and having color of title thereto, has improved it, and thereafter been evicted, led to the enactment of the Betterment Statute under which this case arose. This statute has been referred to in cases construing it as arbitrary, yet it.has been consistently upheld and enforced as a fair means of determining conflicting- interests of parties litigant, under the conditions stated to which the statute applies, depriving no one of any constitutional rights.

r The decree of the court below will therefore be reversed, and the cause will be remanded, with directions to state the account between the parties in accordance with the views herein expressed.

Hart, C. J., dissents in part; Kirby, J., dissents.


author: Humphreys, J.

text:
    Sydeman Bros., Inc., v. Wofford.
    Opinion delivered May 9, 1932.

      I. J. Friedman and Cravens \<& Cravens, for petitioner.

      Mill, Fitshugh S Brizsolara, for respondent.
   Humphreys, J.

This is a petition by Sydeman Bios., Inc., to this court for a writ of prohibition to prevent the chancery court of the Ft. Smith District of Sebastian County from trying a suit brought by Mrs. Annie B. Whitlow to recover a personal judgment against petitioner for an alleged breach of a lease of her business building in Ft. Smith, and to enforce a lien for the payment of the amount claimed against trade fixtures owned by said petitioner in said city. It is alleged in- the petition that about four months before the institution of her suit in the chancery court, the petitioner, a foreign corporation, doing business by permission in the State, had withdrawn therefrom by discontinuing' its business therein and notifying the Secretary of the State of Arkansas of such cessation of business, and of its retirement from the State, and that, on account of its withdrawal from the State, the chancery court acquired no jurisdiction of the petitioner by virtue of the summons issued out of said court and served upon the Secretary of State, who was designated by petitioner as its agent for service when it qualified under § 1827 of Crawford & Moses’ Digest to do business in the State.

An alleged lease and a breach thereof was made the basis of the suit by Mrs. Whitlow in the chancery court, in which she sought personal judgment against petitioner and a foreclosure of a lien provided for in the lease for rents upon trade fixtures it owned. A good cause of action was stated, but petitioner argues that the chancery court was without jurisdiction to render a personal judgment against it on account of the breach of the lease because service upon its designated agent when it entered the State is insufficient to give the chancery court jurisdiction of its person or corporate body. The solution of this question depends upon whether a foreign corporation may qualify to do business in this State and, after incurring obligations, can -withdraw from the State and defeat personal service on its agent in suits to enforce such obligations. According to the weight of authority, it cannot do so. The general rule is well stated in 12 Ñ. C. L., at page 1113, as follows:

“It is generally held that a foreign corporation, which has been admitted to do business within a State upon the condition that it execute a power of attorney for service of process to a general agent or State officer, cannot, after having designated some person for service of process and carried on business within the State, escape from the jurisdiction of the courts of the State over actions brought by residents thereof with whom it has contracted under the permission to do business therein by revoking the power of attorney for service of process and ceasing to do business within the State.”

The rule quoted above finds support in 14-A Corpus Juris, 1377.

The chancery court acquired jurisdiction over the petitioner by service upon the Secretary of State in the suit brought by Mrs. Whitlow against it, hence its application for a writ of prohibition is denied.