text:
    American Indemnity Company v. Hood.
    Opinion delivered February 16, 1931.

      Reinberger •<& Reinberger, for appellant.

      Dcmaher Dmmher, for appellee.
   Butler, J.

The cause was submitted to the court on an agreed statement of fact from which the following state of case appears: The Jefferson Motor Company sold Adams an automobile and retained title until the balance of the purchase price, amounting to $448.20 was paid. Immediately after his purchase of the car, Adams solicited from the appellant company a policy of insurance against loss by fire, etc., which policy he procured. Adams made payments to the Jefferson Motor Company from time to time, so that in June, 1929, the amount due the Motor Company was reduced to $112.05, and on the 14th of said month the automobile was accidentally destroyed by fire.

The insurance company was notified of the loss and demand made for the sum of $448.20, the sum named in the policy. The insurance company denied liability except to the extent of the balance due on the purchase price which it tendered in settlement. The policy contains many provisions and is a lengthy document, which, when copied into the transcript, covers twenty-three pages, but only the insuring clause in the face of the policy, “section 9E” thereof, and an “indorsement” attached thereto is deemed relevant.

In the insuring’ clause in the face of the policy the company undertakes to insure Adams against loss by fire of the automobile for three-fourths of its value, not to exceed $448.20, loss payable to Adams and Jefferson Motor Company. Section 9E of the policy reads: “This policy is made and accepted subject to the provisions, exclusions and conditions and warranties set forth herein or indorsed hereon, and upon acceptance of this policy the insured agrees that its terms embody all agreements then existing between himself and the company,” etc.

The “indorsement” provides that “in consideration of the premium at which the policy, to which this indorsement is attached, is written, it is hereby understood and agreed that the automobile described in the policy is being sold to S. B. Adams (herein referred to as the vendee), 1100 State Street, Pine Bluff, Arkansas, blacksmith, on the deferred payment plan, but it is the intent of this policy to protect only the interest of Jefferson Motor Company (mortgagee).

“It is also understood and agreed that the liability of the company under this policy shall be automatically reduced by the amount of each payment until the car is fully paid for, at which time the company’s liability shall cease, said liability in no event to extend beyond tbe expiration date set forth in the policy. * * *

“This indorsement, when countersigned'by a duly authorized agent of the company and attached to policy No. 85047, issued to S. B. Adams, shall be valid and form a part of said policy.”

If the clause in the face of the policy insuring Adams against loss for the destruction of the automobile is valid and controlling when the indorsement aforesaid is considered, then the judgment of the court below is correct. If, however, that clause is nullified by the indorsement above quoted and its terms prevail, then the contention of the appellant must be sustained. The question then is which of the two controls?

It is stated as a general rule in 14 R. C. L., p. 934, and in 26 C. J. (Fire Insurance) § 72, that a “slip” or “rider” will be construed in connection with printed provisions of the policy and the entire contract harmonized if possible, but, if there is an irreconcilable conflict, the slip or rider will control, and these statements are relied upon by the appellant in support of the position taken by it. The cases cited by the authors to support the declaration of the text are from some of the Federal District Courts and from courts of a few of the States. 92 Fed. 111; 55 Ib. 238; 34 Ib. 501; German Ins. Co. v. Churchill, 26 Ill. A. 206; Mixon v. St. Paul F. & M. Ins. Co., 147 La. 302, 84 So. 790; Jackson v. Orient Ins. Co., 106 Mich. 57, 63 N. W. 968; Haws v. Phila. F. Assn. Co., 114 Pa. 431, 7 Atl. 759; Couch v. Home Pro. F. Ins. Co., 32 Tex. Civ. Appeals 44, 73 S. W. 1077.

These cases, however, seem to have enunciated the rule as applying where the provision overruled by the rider was wholly printed and the rider written, basing this rule on that other well-recognized one in the construction of contracts that, in case of conflict between written and printed portions of an instrument, the writing will be presumed to represent the intent of the parties as against the printed portions. This rule was recognized by this court in the case of Planters’ F. & C. Co. v. Columbia Cotton Oil Co., 126 Ark. 19, 189 S. W. 166; where the reason is given that the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and should therefore control where there is conflict with the printed portions of the contract.

In the case at bar not all of the conflicting clauses were written, nor were they wholly printed. It is obvious that both are printed forms with blank spaces for the insertion of names, dates and the like. Therefore, there does not here appear the reason for the rule as broadly stated in 14 R. C. L. and 26 C. J., supra, and, as representing the intent of the parties, they are of equal dignity. This brings int<? the construction of the policy the settled rule that its provisions must be harmonized, if possible, but in case of doubt the provisions will be construed most strongly against the insurer and in favor of the insured. From an examination of the history of the adoption of this rule and of the instruments themselves, the reasons are patent and contains the belief that the terms of the instruments were not formulated by the insurers for the purpose of clearly informing the insured of the true extent of his protection or the limitations on their liability, but rather chosen with particular reference to their own interests. This is apparent from an inspection of the policy at hand with its involved phraseology and the numerous exceptions, conditions, and ambiguous provisions. There are two provisions which apparently conflict, but, on careful consideration, it might be said that there were two purposes sought to be effectuated by the contract; one, that Adams was to be protected for three-fourths of the value of the ear, not to exceed the amount stated in the policy, and the other, that Jefferson Motor Company (Hood) should be protected to the extent of the balance of the purchase price due on the car. Taking the language of the insuring clause in the face of the policy alone, it is Adams who is insured, but the loss is made payable to Mm and the Jefferson Motor Company, the amount to be paid to each not being disclosed; but, by the attached indorsement this uncertainty is removed, and it is there that the extent of the motor company’s interest appears. We are not at liberty to consider any one clause or statement in either the insuring clause or in the indorsement, and with that as the basis construe the policy with respect to the rights and liabilities of the parties, ¡but the language of the entire policy must be considered, and, thus considered, the conflict is more apparent than real. By the terms of the insuring, clause the right of Adams is established; by the terms of the indorsement the extent of the motor company’s interest is ascertained.

Since the indorsement was printed, the rule announced in Planters’ F. & C. Co. v. Columbia Cotton Oil Co., supra, does not apply as the insuring clause on the front page of the policy and the indorsement attached to the back of same, are of equal dignity, as we have seen, then in the event of a conflict which could not be harmonized, the policy must be construed in favor of the insured, and the first provision must prevail over a later one. This does not contravene the doctrine of National Union Fire Ins. Co. v. Avant, 167 Ark. 307, 268 S. W. 20, and is supported by Great Americans Cas. Co. v. Williams, 177 Ark. 87, 7 S. W. (2d) 775, and Leader Co. v. L. R. Ry. & Electric Co., 120 Ark. 221, 179 S. W. 358.

In this ca^e, if it had been the intention of the insurer not to protect Adams in any event against loss, it could have plainly said so in the insuring clause, but, instead, in plain and unambiguous language, it insured Mm against the loss of his automobile by fire which contract it must make good.

The judgment of the trial court is correct, and it is therefore affirmed.

Smith, J., concurs in the judgment; Kirby, J., dissents.


source: Caselaw Access Project

author: Hart, C. J., Smith, J.,

license: Public Domain

text:
    Davis v. Wilson.
    Opinion delivered February 23, 1931.

      Sam A. Davis, for appellant.

      Sal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.

      R. W. Robins, Amicus Curiae, for appellee.
   Hart, C. J.,

(after stating the facts).- It is well settled that courts of equity will not interfere, by injunction, to determine questions concerning the appointment or election of public officers, or their title to office; and it does not matter whether the incumbent is an officer de jure or de facto. 22 R. C. L. 113, p. 454.

This rule is in accord with the repeated holding of our own court. In Rhodes v. Driver, 69 Ark. 606, 65 S. W. 106, 86 Am. St. Rep. 116, the court quoted with approval from High on Injunctions, the following: “No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made tbe forum of determining the disputed questions of title to public offices, or for tbe trial of contested elections, but will in all sucb cases leave the claimant of tbe office to pursue tbe statutory remedy, if there be sucb, or tbe common law remedy, by proceedings in tbe nature of \quo warranto.” High, Injunctions (3d Ed.), No. 1312.

This doctrine has been reaffirmed in tbe following cases: Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Harrison v. Norton, 104 Ark. 16, 148 S. W. 497; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; and Allen v. Sellers, 141 Ark. 206, 217 S. W. 257.

The Supreme Court of tbe United States is committed to tbe doctrine that a court of equity has no jurisdiction over tbe appointment and removal of public officers. In White v. Berry, 171 U. S. 366, 18 S. Ct. 917, it was béld that a court of equity has no jurisdiction over tbe appointment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or administrative boards or officers, or is intrusted to a judicial tribunal. It was further held that tbe jurisdiction to determine the title to a public office belongs exclusively to tbe courts of law, and is exercised by certiorari, error or appeal, or by mandamus, prohibition, quo warranto, or information in tbe nature of a writ of quo warranto, according to tbe circumstances of tbe case, and tbe mode of procedure established by common law or by statute.

In the case of Walton v. House of Representatives, 265 U. S. 487, 44 S. Ct. 628, it was held that a court of the United States, sitting as a court of equity, is without jurisdiction of a suit to enjoin tbe prosecution of a proceeding to remove a State official from office.

In tbe application of these settled principles of law, tbe court is of tbe opinion that tbe chancery court has no jurisdiction to restrain the Lieutenant Governor from recognizing- E. E. Spence as a State senator or recording his vote as prayed in the complaint.

It is claimed, however, that the court has jurisdiction to restrain the Lieutenant Governor from issuing-vouchers to E. E. Spence as State senator and J. Oscar Humphrey from issuing warrants upon said vouchers. This contention proceeds upon the theory that E. E. Spence was a de facto officer and, as such, was not entitled to the salary allowed to State senators.

Eeliance is placed upon article 4, §§ 5 and 12, of our Constitution. Section 6 provides that the Governor shall issue writs of election to fill such vacancies as shall occur in either house of the General Assembly. Section 11 provides that each house shall be the sole judge of the qualifications, returns and elections of its own members.

On the one hand, it is sought to uphold the decree of the chancery court on the theory that constitutional provisions of this kind are found in the organic laws of several of the States, making each branch of the Legislature the judge of the election and qualifications of its members. It is claimed that such a provision is a grant of power and constitutes each the exclusive tribunal as to the qualifications of its own members. On the other hand, it is insisted that this provision should be construed only to mean that the acts of Senator Spence in the present case, in voting upon measures and acting generally as a State senator, could not be called in question in a collateral proceeding, but that he was only a de facto officer, and as such was not entitled to the emoluments which belong by law to his office; therefore it is insisted that the chancery court had the power to enjoin the issuance of a voucher of his pay as State senator to him.

In the first place, it will be seen that a decision of this question would, as to all practical purposes, settle whether Spence was an officer de jure or de facto; and, as we have already seen, a court of equity will not permit itself to be made tbe forum for tbe purpose of determining disputed questions as to the title of public offices.

It is suggested tbat article 16, § 13, gives tbe chancery court jurisdiction. Tbat section provides tbat any citizen of any county, city or town may institute suit in behalf of himself and all others interested to protect tbe inhabitants thereof ag'ainst tbe enforcement of any illegal exaction whatever. Reference to tbe cases cited under the section in tbe Constitution will show tbat the section has reference to taxes levied without any warrant of law. Tbe section is but a recognition of tbe well-known principles of equity, as expounded in Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980, and in many other cases decided by this court, tbe jurisdiction of a court of equity is expressly limited to tbe protection of civil and property rights. Civil rights have no relation to tbe establishment or management of tbe government. They consist in the power of acquiring and enjoying property and exercising tbe paternal and marital powers and tbe like. This distinction was also pointed out in Harrison v. Norton, 104 Ark. 16, 148 S. W. 497. There tbe court said thaticourts of equity have no power to try election contests, but tbat they do have tbe jurisdiction in a suit to restrain tbe enforcement of an alleged illegal exaction, which was in tbat case a road tax, alleged to be illegal and unauthorized.

Again, it is said tbat courts of equity have inherent jurisdiction to restrain tbe officers of a municipality or other governmental corporation from making an unauthorized appropriation of tbe corporate funds, as decided in numerous cases by this court, including Town of Jacksonport v. Watson, 33 Ark. 704; and Russell v. Tate, 52 Ark. 541, 13 S. W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193. The reason is tbat tbe corporation bolds the money for tbe inhabitants to be expended for legitimate corporate purposes, and a misappropriation of these funds is an injury for which no other remedy is so effectual and appropriate as an injunction. It presents a multiplicity of suits and a misappropriation of the funds for a purpose which in itself is illegal. In Russell v. Tate, 52 Ark. 541, 13 S. W. 130, this doctrine was reaffirmed, and it was held that the officers in whose hands moneys are intrusted for a municipality are trustees in the management and application of such funds; and that the application of these funds to a purpose other than that provided by law is a breach of such trust, which may be enjoined in equity. See also Sanderson v. Texarkana, 103 Ark. 529, 146 S. W. 105. This was the proper application of the well-known power of equity to protect the citizens in their property rights, and it was properly held that a city clerk could be prevented by a suit in equity from appropriating the funds of the city to the building of a courthouse, which was a purpose not authorized by law.

In the present ease, it cannot in any sense be said that the appropriation of the money by the issuance of the voucher was for an illegal purpose, the purpose being to pay a State senator which was authorized by law. The only question is that Spence was not the proper person to receive the salary or compensation. The purpose itself was lawful, and the question whether Spence was the proper person to receive the compensation depended upon the construction of the clause of the Constitution above referred to. As we have already seen, it is the settled law of this State that courts of equity have no jurisdiction in matters of an executive or political nature. To assume jurisdiction in controlling the exercise of political powers would be to invade the dominion of other departments of government, and to encroach upon ,the jurisdiction, of the courts of common law. Arnold v. Henry, 155 Mo. 48, 55 S. W. 1089, 78 Am. St. Rep. 556.

Again the equitable maxim is invoked, that courts of equity will always assume jurisdiction where there is no adequate remedy at law. If it be conceded that, in the construction of the sections of the Constitution above referrecl to, Spence is not an officer de jure but is only an officer cle facto, still the plaintiff would have an adequate remedy at law. In Cox v. State, 72 Ark. 94, 78 S. W. 756, it was held that the Governor had no inherent power by virtue of his office or of article 6, § 23, and of the amendment to the Constitution, providing' for filling vacancies in office until the next general election (which provisions plainly refer only to elective offices), to appoint the State Capitol Commissioners, a board created for a special purpose, the members of which are not elective, and whose terms will expire with the completion of the work. In that case the Attorney General brought suit against Cox and others who were appointed by the Governor to serve as members of the Board of State Capitol Commissioners. The circuit court found the law to be in favor of the contention of the Attorney General and gave judgment of ouster against the defendants. Upon appeal, the judgment of the circuit court was affirmed, thereby recognizing the .jurisdiction of the circuit court in cases of this sort. This in accord with the general rule on the subject in the cases above cited.

If the Attorney General should refuse to bring suit upon the relation of a citizen and taxpayer, such person could bring suit in his own name under the authority of Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; and Green v. Jones, 164 Ark. 118, 261 S. W. 43.

In this connection, we also call attention to the case of Stephens v. Campbell, 67 Ark. 484, 55 S. W. 856, where it is said: “Under the statutes of this State, an officer de facto, without legal title to the office, is a usurper (Lambert v. Gallagher, 28 Ark. 451; Wheat v. Smith, 50 Ark. 267-273, 7 S. W. 161), and can be removed from office by ‘an action by proceedings at law instituted against him, either by the State or the party entitled to the office.’ Where he ‘has received fees and emoluments arising from the office,’ he is liable therefor to the person entitled thereto, who may claim the same in the action brought to deprive him of the office, * * * or in a separate action. If no one be entitled to the office, * * * the same may be recovered by the State, and paid into the State Treasury. Sandels & Hills Digest, § 7371. The fees 'are not his, and he is not entitled to hold them. If he collects any fees for services rendered, he holds them at sufferance. ’ ’

We do not think that the case of State of Montana v. Hart, 56 Mont. 571, 185 Pac. 769, 7 A. L. R. 1678, has any application. There the relator instituted mandamus proceedings against the State Treasurer to enforce payment of a warrant as a member of the House of Representatives.

So, if it should be held here that Spence was merely an officer de facto, he could not maintain an action for the salary, because, as pointed out in Stephens v. Campbell, 67 Ark. 484, 55 S. W. 856, such action would put in issue his legal title to the office. The reason is that the act of an officer de facto, when it is for his own benefit, is void, because he shall not take advantage of his own want of title, which he must be cognizant of, but where it is for the benefit of strangers, or the public, it is good. This not being a suit by Spence for the salary of his office, we do not think that the' principles of law decided in the Montana case have any application whatever. '

The majority of the court is of the opinion that injunction is not the proper remedy, and equity is not the proper forum for determining the legality of the acts of the Lieutenant Governor and the Auditor of the State in issuing his salary, nor the legality of the appointment of Spence to the office of State Senator. The complaint, considered in all its aspects, must be held to be a suit for the purpose of trying the right of Spence to hold the office of State Senator; and, under the established rule in this State, a court of equity does not have jurisdiction for the reasons above set forth and for the additional reason that the plaintiff had a plain and adequate remedy at law, as above stated. In short, according to our own decisions, the plaintiff had a plain and adequate remedy at law to try in one suit in the circuit court not only the title to the office but the right of Spence to the salary thereof. Therefore the decree of the chancery court will be affirmed.

Smith and Mbhakky,'JJ., dissent.

Smith, J.,

(dissenting). Whatever this case may be, it is not a contest for an office, nor does any one claim that it. E. Spence is an usurper, holding- an office to which another is entitled. No other person asserts any right to exercise the functions of the office which Senator Spence is now filling. We need not, therefore, consider what remedy such a person should pursue, if there were such a person.

The allegations of the pleadings are that Senator Spence has been recognized as a member of the Senate by that body and is serving as a member thereof. He is, at least, a de facto member of that body, and, so long as the Senate recognizes his right to serve as such, it cannot be directly questioned except by and in the Senate. The citizen and taxpayer who has brought this suit does not question Senator Spence’s right to act as a de facto officer; his insistence is that he is not entitled to be compensated- for that service.

The few and the simple facts of this case should be kept in mind in determining the question which, the taxpayer does raise, and that is, whether Senator Spence, although a de facto senator, has the legal right to draw compensation from the State Treasury for his service as a senator. The facts are undisputed and are all matter of public record.

The first senatorial district is entitled to a senator; and it had one. That senator resigned while the Senate was in session, and the Governor has appointed a successor, and this successor is now serving. Has this successor the legal right to receive compensation for that service?

It is unimportant that the Auditor of State has not refused to issue a voucher upon the State Treasury to compensate that service. The legal and constitutional question is no more affected by the willingness of the Auditor to issue this voucher than it would be by his refusal to do so. The question is not, what has the Auditor done, or is willing to do? The question is, what is the duty and what is the power of the Auditor under the Constitution and laws of this State? And the decision of that question should not be confused by any consideration of the fact that no other person claims the right to discharge the duties of Senator from the First Senatorial District of the State. The question raised by the citizen and taxpayer, as we have said, is the right of Senator Spence to have the Auditor draw in his favor a warrant upon the State Treasury to compensate him for that service. Certainly the complaisance or the obduracy of the incumbent filling the office of Auditor of State cannot be decisive of a question of such constitutional importance. His successor might be of another opinion, and constitutional rights cannot be made dependent upon the policy of the Auditor of State. I assume this officer wants only to know what his duty is under the Constitution and laws of the State, and no reflection upon him is intended. But what I do insist is that the willingness or unwillingness of the Auditor to issue the warrant is of uo importance and cannot affect the decision of the question which the citizen and taxpayer has raised.

When the merit of the case is reached, the question appears to me to be a very simple one, and that is, did . the Governor of the State have the authority to make the appointment? Section 6 of article 5 of the Constitution answers this question. It reads as follows: “The Governor shall issue writs of election to fill such vacancies as shall occur in either house of the General Assembly,” and it is not insisted in any of the briefs filed in this case that this direction is not mandatory. On the contrary, the universal rule of construction is that such provisions of the Constitution are to he construed as mandatory. As no one questions this rule of construction, I shall not argue it further nor cite cases to support it.

It is, however, suggested in the brief by amicus mriae that § 23 of article 6 provides that “When any office from any cause may become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have the power to fill the san^e by granting a commission, which shall expire when the person elected to fill said office at the next general election shall be duly qualified.” Now, it may be conceded that an enabling act is necessary to make § 6 of article 5, above quoted, effective, and that, in the absence of an enabling act, § 23 of article 6 would confer upon the Governor the power to make' the appointment, if, in fact there were a vacancy, and no mode had been provided by the Constitution to fill it. But such is not the state of the law. Full and adequate provision has been made for filling the vacancy as the Constitution contemplated should be done. By § 4962, Crawford & Moses’ Digest it is provided that: “When any member elected to either house of the General Assembly shall resign in the recess thereof, he shall address and transmit his resignation, in writing, to the Governor; and when any such member shall resign during any session, he shall address his resignation to the presiding officer of the house of which he is a member, which resignation shall be entered upon the journal; in which ease, and in all cases of vacancies happening or being declared during any session of the General Assembly, by death, expulsion or otherwise, the presiding officer of the house in which such vacancy shall happen shall immediately notify the Governor thereof, who shall immediately issue a writ of election to fill such vacancy.” Section 4963, Crawford & Moses’ Digest provides that when the Governor shall receive any resignation or notice of vacancy, he shall, without delay, issue a writ of election to fill such vacancy. Sections 4964 and 4965 Crawford & Moses’ Digest provide how the special election shall he held which the Governor is required to call.

The duty of the Governor is therefore mandatory, and full provision is made whereby that duty ma}7' be discharged. It appears therefore that the Governor is without power to make the appointment, and therefore Senator Spence is not a de jure senator. Consequently, the Auditor is without authority to issue the voucher.

In the recent case of Hill v. Rector, 161 Ark. 574, 256 S. W. 848, Hill brought suit against the city of Rector to recover a sum alleged to be due him for his services as mayor of that city. He alleged that the legally elected mayor had resigned, and that the city council, at its first regular meeting, had elected him as mayor to serve for the unexpired term. On behalf of the city it was denied that Hill had been elected in the manner provided by § 7518, Crawford & Moses’ Digest, and that he was not, therefore, the legal mayor of the city, although he had served in that capacity. We there said: “It follows that the appellant failed to prove that he was duly elected mayor of the city of Rector. The appellant, however, does prove that he was the de facto mayor of the city of Rector. But in the case of Stevens v. Campbell, 67 Ark. 484, 55 S. W. 856, quoting from Andrews v. Porter, 79 Me. 490, we held: ‘A de facto officer has no legal right to the emoluments of the office, the duties of which he performs under color of an appointment, but without legal title. He cannot maintain an action for the salary. His action puts in issue his leg’al title to the office, and he cannot recover by showing merely that he was an officer de facto.’ The fact that the appellee (the city) in its answer recognized that the appellant ‘was permitted to act as mayor’ does not estop the appellee from setting up that appellant was not the duly elected mayor of the city. The appellee expressly denied that appellant was such mayor. We conclude therefore that the court did not err in directing the jury to return a verdict in favor of the appellee.”

The reasons which induced us to hold that Hill was not entitled to recover compensation for his services as mayor of the city of Rector, although he had served in that capacity, are applicable here, and should result in the holding that Senator Spence is not entitled to compensation for his services as senator, although he has served in that capacity.

We have many times held that any citizen and taxpayer may, in his own name, institute suit in the chancery court to prevent any public official from paying out public revenue contrary to law, the most recent of these being the case of Rose v. Brickhouse, 182 Ark. 1105, 34 S. W. (2d) 472, in which the opinion was delivered January 19, 1931, and a number of cases to the same effect were there cited. That was a case in which Rose, as a citizen and taxpayer, was permitted to enjoin Brick-house from drawing compensation for services in an official capacity which was unauthorized 'by law.

I am therefore of the opinion that, although Senator Spence is a de facto senator, and may act as such so long as he is permitted to do so by the Senate, yet his right to draw compensation for that service is one which any citizen and taxpayer has the right to raise, and, as Senator Spence is serving without authority of law, he is not entitled to be compensated for that service, and the Auditor should be enjoined from issuing* him a voucher paying* him therefor.

I am authorized by Mr. Justice Mehaffy to say that he concurs in the views here expressed.


author: Humphreys, J.

text:
    American Insurance Company of Newark, New Jersey, v. Russell.
    Opinion delivered February 23, 1931.

      H. M. Barney, for appellant.

      E. F. McFacldin, -for appellee.
   Humphreys, J.

Appellee brought this suit against appellant to recover $395 on two items covered by an insurance policy for $3,000, which also covered twelve other items, or a total of fourteen items. Each of the fourteen items was separate and set out specifically as to the amount of insurance thereon in said policy. The policy was issued by appellant to appellee on September ’20, 1926, for a period of five years from the 16th day of September, 1926, to the 16th day of September, 1931, for a total premium of $325.80, payable $65.16 in cash, and a like amount on the first day of October, for the years 1927,1928, 1929 and 1930, respectively; the deferred payment being evidenced by one note in the total sum of $260.64, due in installments as aforesaid.

It was alleged in the complaint that on the '24th day of October, 1929, the barn and certain provender, being two items covered by the policy, were destroj^ed by fire, and that proof of loss was made within the period of sixty days after the fire provided in the policy for making such proof.

Appellant filed an answer denying liability under the policy on the ground that the policy was suspended on October 24, 1929, when the barn and provender were destroyed by fire, on account of appellee’s failure to pay the premium installment on October 1, 1929, amounting to $65.16. The suspension clause relied upon as a defense was set out, in substance, in the answer, and is as follows:

“And it is hereby agreed that, in case of nonpayment of either of the installments herein named at maturity, this company shall not be liable for loss during such default, and the policy for which this note was given shall lapse until the payment is made to this company, * * *. The payment of the premium, however, revives the policy, and makes it good for the balance of the term.”

The cause was submitted upon the pleadings and the testimony adduced by the respective parties, at the conclusion of which the court peremptorily instructed a verdict for appellee in the amount sued for, from which is this appeal.

The record reflects that appellee had the money in the bank with which to pay the premium on October 1, 1929, but forgot to do so until after the barn and provender were destroyed by fire. Immediately thereafter he informed appellant’s local agent of the fire, and, following his advice, sent a check to appellant on the 31st day of October, 1929, for $65.16 to cover the premium due on October 1,1929, but did not inform appellant in the letter inclosing the check of the fire. Appellant received and cashed the check without any knowledge that the barn and provender had been destroyed by fire. Later, and within sixty days after the fire, appellee made proof of his loss by fire in accordance with the terms of the policy and mailed same to appellant. This was the first knowledge appellant obtained that the barn and provender had been destroyed by fire. It immediately denied liability upon the ground that the policy was suspended under the express provisions thereof during the time appellant had defaulted in the payment of the premium installment due October 1, 1929', and that the policy was void and of no binding effect on appellant at the time the barn and provender were destroyed by fire. It retained the total premium and refused to pay appellee’s loss.

Appellant contends for a reversal of the judgment under the g-eneral rule adopted by this court to the effect that policies of fire insurance may provide against liability on the part of the insurer during’ default in the payment of the installments of the premium agreed upon as a consideration for the protection. The doctrine invoked and relied upon by appellant may be found in the cases of Jefferson Mutual Life Insurance Co. v. Murray, 74 Ark. 507, 86 S. W. 813; American Insurance Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213; Fidelity Mutual Insurance Co. v. Bussell, 75 Ark. 25, 86 S. W. 814; and American Insurance Co. v. Austin, 178 Ark. 566, 11 S. W. (2d) 475.

Appellee concedes the general rule provided in the cases cited, but contends that the instant case is not governed by the general rule, but by the exception thereto to the effect that suspension of forfeiture clauses in policies may be waived by the insurer. Appellee argues that the retention of the premium installment paid by him on October 31, 1929, which was due October 1, 1929, after receiving’ notice of the loss by fire, was a waiver of the suspension or forfeiture clause contained in the policy and set out above. He cites in support of his contention the case of Ætna Insurance Co. v. Daggett & Yancey, 177 Ark. 109, 5 S. W. (2d) 719. The compelling facts in the case cited do not appear in the instant case. In the case cited the insured was, not aware of a fire and loss when they paid the delinquent installment of the premium. It accepted all of the overdue premium with full knowledge of the fire loss, and, instead of denying* liability, entered into negotiations for a settlement by sending an adjuster to investigate the fire and causing or inducing- the insured to go to trouble and expense.

In the instant case appellee did not notify appellant of the fire loss when he remitted the delinquent premium installment, although knowing of it himself. In other words, lie withheld this information from the insurer so at the time it received the remittance and appropriated same it had no 'knowledge of the fire loss. Immediately upon obtaining the information, the insurer denied liability and did not enter into negotiations for a settlement or by any act induce appellee to go to trouble or expense relative thereto. All that it did was to retain the installment of premium remitted to it after it became aware of the fire loss. The cases are not parallel in their salient facts, and, therefore, the instant case is not ruled by the case of Ætna Insurance Co. v. Daggett & Yancey, supra. The retention of the installment premium under the circumstances was not sufficient in itself to constitute a waiver of the suspension clause as a matter of law; nor was it, standing alone, sufficient to carry the question of waiver to the jury. The rule stated in 32 C. J., at page 1351 (§ 629) is as follows:

“Acceptance of a past-due premium after loss without knowledg-e of the loss does not revive a previously forfeited policy.” And further, (§ 630) : “The exercise by the company of its right to accept the premium after due, under a provision in the contract expressly stipulating as to the effect of such an acceptance, does not in itself waive a forfeiture or provision against liability during the suspension of the policy.”

Instead of instructing a verdict for appellee, the court should have instructed a verdict for appellant.

On account of the error indicated, the judgment is reversed, and the cause is dismissed.


author: Kirby, J.,

text:
    Coca-Cola Bottling Company of Arkansas v. Coca-Cola Bottling Company.
    Opinion delivered February 23, 1931.

      Coleman S Riddick, for appellant.

      Hays •& Smallwood, for appellee.
   Kirby, J.,

(after stating the facts). The only issue involved in this appeal is whether the court erred in holding that appellee company owned the exclusive right to bottle and sell bottled Coca-Cola in Paris under its contract.

The intention and rights of parties under a contract must be determined as they existed at the time the contract was executed, the cardinal rule for construction and interpretation being that the intention of the parties shall be effectuated, as gathered from the whole context of the agreement. Glover v. Bullard, 170 Ark. 58, 278 S. W. 645; Fort Smith Light & Traction Co. v. Kelley, 94 Ark. 161, 127 S. W. 975; Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 608, 3 S. W. (2d) 673.

Courts may acquaint themselves with persons and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.” Inter-Southern Life Ins. Co. v. Shutt, 175 Ark. 1161, 1 S. W. (2d) 801. See also Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845.

The undisputecl, testimony shows that appellee had been serving Paris with Coca-Cola for more than 4 years prior to the execution of its present contract, and that on the date of its execution there was no rail connection whatever between Little Bock and Paris, the only connection by rail being the Arkansas Central Bailroad, which extended only from Paris to Port Smith, and which was used in serving the Paris territory in the beginning.

Meek, one of the lessors, testified that he had secured the same territory in the last contract that he had been serving under the first with some additional, the description being, “also the territory along the Arkansas Central Bailroad from Port Smith to Paris.”

Appellant insists that the word “to” used in this description is a term of exclusion unless there was something in the connection which makes it manifest that it was used in a different sense, and cites in support thereof 9 C. J. 153 and Breashear v. Norman, 176 Ark. 26, 2 S. W. (2d) 53.

The court held, however, and correctly so under the circumstances of this case, the situation and relation of the parties considered, that the word “to” and the sense in which the word is commonly understood is inclusive rather than exclusive. Bennett Lumber Co. v. Walnut Cypress Co., 105 Ark. 421, 151 S. W. 275; Hastings Industrial Co. v. Copeland, 114 Ark. 415, 169 S. W. 1185; Bloch Queensware Co. v. Smith, 107 Mo. 13, 80 S. W. 592. The Supreme Court of Missouri stated in the above mentioned case: “The word ‘to’ has no specific meaning in a legal sense, although it is a word of exclusion. Its meaning is ascertained from, the reason and sense in which it is used. ’ ’

In Union Pacific Rd. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428, the Supreme Court of the United States said the words “from,” “to” and “at” are taken inclusively according to the subject-matter. See also President, etc., of Farmers’ Turnpike Road v. Coventry, 2 Johns (N. Y.) 389; Hazelhurst v. Freeman, 52 Ga. 244; People v. Klammer, 137 Mich. 399, 100 N. W. 600; Rio Grande R. Co. v. Brownsville, 45 Tex. 88; McCartney v. Chicago & Evanston R. R. Co., 112 Ill. 611; 8 Words & Phrases, first series, page 6986; 4 Words & Phrases, second series, page 930.

In National Equity Life Ins. Co. v. Bourland, 179 Ark. 398, 16 S. W. (2d) 6, this court said: “It is a well-established principle of law that, in the interpretation or construction of contracts, the construction the parties themselves have placed on the contract is entitled to great weight and will generally be adopted by the courts in giving effect to its provisions. This is especially true in case of ambiguity in the written contract.” See also Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. (2d) 673; and Webster v. Telle, 176 Ark. 1149, 6 S. W. (2d) 28.

Prom 1910 to 1928, a period of 18 years, the appellee company and its predecessors served the people of Paris without objection from the Bellingraths, lessors of appellant company. Meek testified that he had no knowledge that they made any claim to the territory of Paris until he received their letter of June 23, 1928. Meek had made two sub-bottlers’ contracts with parties in the Paris territory, which had been approved b3r the present company, and had never been questioned by Bellingrath. Early in 1927, when the concrete highway was being completed from Dardanelle to Port Smith and offering greater facilities for transportation of bottled Coca-Cola, the Bellingraths wrote a letter, the letter of May 30,1927, questioning the right of appellee company to furnish Coca-Cola to several small towns west of Dardanelle, Paris not being mentioned therein. By letter of June 3, 1927, answering Meek’s request for a. definite statement of the territory claimed Bellingrath wrote, “the points in question are points lying- east and southeast of Paris, namely, Corley, Subiaco, Ellsworth, Blaine, Delaware and other points in this vicinity.”

Appellee’s contract for its territory was prepared by attorneys for the Georgia Coca-Cola Company, and tbe rule is, “in construing’ a written contract it should be interpreted more strongly against tbe party who prepared it.” Morley v. Hackler, 176 Ark. 238, 3 S. W. (2d) 20.

It follows from tbe application of tbe principles announced that tbe court correctly construed tbe contract, and did not err in affording tbe relief appellee prayed and was entitled to. We find no error in tbe record, and tbe judgment is affirmed.


author: Kirby, J.

text:
    School District No. 26 v. Baxter County Board of Education.
    Opinion delivered February 23, 1931.

      Northmtt S Northcidt and Claude Cowart, for appellant.

      Kent K. Jackson, for appellee.
   Kirby, J.

Oil a petition duly filed on the 19th day of September, 1929, the county board of education of Baxter County made an order in accordance with the prayer of the petition consolidating School Districts Nos. 61 and 26 into School District No. 61, under the provisions of the statute, $ 8823, Crawford & Moses’ Digest, as amended by act 156 of 1929.

An appeal was taken from this order to the circuit court, where, upon a hearing, the order of the board of education was affirmed, the court saying: “There has been a mass of testimony introduced and the court cannot tell, from the evidence, whether some of the signers of the- petition lived in the territory affected by the order of consolidation or whether they reside in that part of Norfolk Township not affected or not included in the order of consolidation. The board of education has threshed that matter out, and the court, to some extent, respects their acts and findings in the matter.’’ This language was preceded by the court’s finding: “that a majority of the qualified electors of the territory affected by the proposed consolidation signed the petition asljing for the order of consolidation.’’

The court, after finding that it would be for the best interests of a substantial majority of persons residing in the territory affected, further found that the order of the county board of education should be affirmed and so ordered, “except that the court will order that for a period of two years the board of directors of the consolidated district maintain and operate a school in the present School District No. 26 of not less than the first six grades, and for a period of not less than eight months each year, or until transportation facilities can and will be furnished to the school children of District No. 26, and that after the expiration of said two years the maintenance and operation of a school in District No. 26 shall be left to the discretion of the board of directors of the consolidated district, as in the judgment of the board would 'be for the best interest of the persons living • in what is now District No. 26.”

This appeal is prosecuted from this judgment.

It is urged that the court’s finding that the petition for consolidation of Districts Nos. 61 and 26 was signed by a majority of the qualified electors in the territory to be affected is contrary to the evidence, and that its judgment of affirmance of the board’s order of consolidation, with a condition attached, was beyond the court’s power and ineffectual to consolidate the districts.

It is true the testimony was in conflict as to the number of qualified electors residing in the territory affected and as to whether the petition contained a majority thereof, but there was much testimony showing such to be the fact. The postmaster in the district who procured the signers to the petition testified that it contained such a majority, making explanations of all exceptions thereto as to particular individuals challenged as not being legal petitioners; and the court also gave some weight to, the finding of the board on this point, as it had a right to do. Bledsoe v. McKeowen, 181 Ark. 584, 26 S. W. (2d) 900. In School District No. 26 v. District No. 32, 177 Ark. 497, 6 S. W. (2d) 826, the court said: “We are not called upon to determine whether the judgment of the court is supported by the weight of the evidence. The rule is that if the finding of the court is supported by any substantial evidence this court cannot disturb it on appeal.”

Although it is true that the county boards of education are vested by law with a sound discretion in the determination of matters necessary to the formation of new school districts and the orders therefor, subject to review only when it appears that such orders are arbitrary or unreasonable, no such discretion is vested in the circuit court as held in Bledsoe v. McKeowen, supra. The court therefore was without authority, having found that the order of consolidation was valid and should be affirmed, to attempt to make its judgment conditional upon the continuance by the board of a certain grade of school for two years in the territory of one of the districts consolidated, in order that transportation facilities to the central school could be furnished for the children therein. Such order was but only surplusage not affecting- the validity of the judgment of affirmance of the board’s order of consolidation, which the court had the power to make, and amounted to no more than a suggestion to the board of the best method fox effecting in fact the consolidation of the schools.

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


text:
    Washum v. Lester.
    Opinion delivered February 23, 1931.

      G. M. Gibson, for appellant.

      E. H. Tharp and W. P. Smith, for appellee.
   Humphreys, J.

This suit was brought on January 15, 1930, by appellee against appellant in the chancery court of Lawrence County, Eastern District, for contribution on account of having paid a judgment in favor of William R. Moore Dry G-oods Company for $6,174.81, •which it obtained against Sam Ellis, J. H. Washnm and himself on May 21, 1928, in the United States District Court, Eastern District, Jonesboro Division. The transcript of the judgment, duly verified, was filed in the office of the clerk for the Eastern District of Lawrence County, and appellee paid the judgment to avoid the levy of an execution issued thereon and caused the judgment to be satisfied of record. The prayer of the complaint was for judgment against appellant for one-third of the amount paid by him in satisfaction of the judgment, less credits, in the total sum of $166.29', leaving a balance of $2,047.65.

Appellant filed an answer interposing the defenses of the statute of limitations and estoppel.

The cause was submitted to the court upon the pleadings and testimony, resulting in a decree in favor of appellee for $1,410.22, from which is this appeal.

The facts, in substance, are as follows : The Wilson Mercantile Company was a corporation and appellant, appellee and others were stockholders therein. In the years of 1924 and 1925 its financial condition was such that it became necessary for its stockholders, either severally or jointly, to personally indorse its notes and guaranty the larger part of its accounts in order for it to carry on. 'The indorsements and guaranties made by them severally and jointly amounted to over thirty thousand dollars when the corporation failed in the year 1926, at which time appellee had indorsed and guaranteed through himself or jointly with some of the others over $30,000 of the corporation’s indebtedness, and appellant had indorsed and guaranteed $7,000 of the amount. In order to secure the stockholders for their indorsements and guaranties of the corporation’s indebtedness the board of directors passed a resolution that the manager assign notes and accounts belonging to said corporation to said stockholders. At the time of the failure of the corporation, notes and accounts amounting to $16,938.30 belonging to the corporation had been assigned to T. J. Wilson for himself, J. M. Lester (appellee), J. L. Mc-ILamey and J. H. Washnm (appellant), all of whom were stockholders in the corporation. Appellee had guaranteed orally $2,996.05 of said accounts and notes on account of the corporation having furnished his tenants with supplies and J. G-. Richardson, a solvent planter, had guaranteed orally $3,070.29 of said notes and accounts on account of supplies which had been furnished his tenants by said corporation. The testimony was to the effect that each had agreed to pay for the amounts furnished to said tenants, if the tenants themselves did not pay same. The goods were charged on the books to their several tenants and not to appellee or Richardson. After the notes were pledged to the four as security for their respective indorsements and guaranties and the corporation failed, there remained with the trustee in bankruptcy accounts totaling $8,545.41 which were sold to J. M. Lester for $150 by the trustee in bankruptcy. During the progress of the proceedings in bankruptcy against the said corporation all the notes were released by the referee in bankruptcy to T. J. Y/ilson, J. L. McKamey, J. IT. Waskum and 3. M. Lester, who were the only stockholders who had indorsed or guaranteed the accounts aforesaid, to protect their indorsements and guaranties, and all of the notes and accounts were delivered to J. M. Lester (appellee), except such as had been pledged as collateral security to the People’s Bank of Imboden, totaling about $2,890. Appellee collected $192.20 out of the notes assigned to them before the failure of the corporation, and $482.05 out of those delivered to them by the trustee in bankruptcy. The testimony was in conflict as to whether appellee made every reasonable effort to collect the notes and account. He testified that he did the best he could with the notes and accounts. Appellant offered to assist him if he was remunerated for his services, but appellee refused to allow him to retain a per cent, on collections. Appellant made no further effort to get any of the notes and accounts and no attempt whatever to collect same in order to protect his indorsements and guaranties. Several witnesses testified that in their opinion eighty-five per cent, of the notes and accounts were collectable at the time they were delivered to appellee. Both appellant and appellee, together- with Sam Ellis, indorsed and guaranteed the claim of the William B. Moore Dry Goods -Company upon which it obtained the judgment against the three of them in the Federal court. When the William R. Moore Dry Goods Company obtained judgment against the three of them in the Federal court, appellee did not request or move for a summary judgment for one-third of the amount against appellant. It seems fairly certain from the testimony that appellee paid $30,124 and appellant $2,317.80' out of their own pockets on their respective indorsements and guaranties of the indebtedness of the Wilson Mercantile Company.

Appellant’s first contention for a reversal of the decree is that appellee’s claim for contribution was barred by his failure to move for a summary .judgment against appellant in the United States District Court where the judgment was rendered in favor of the William R. Moore .Dry Goods 'Company against them, in the time and manner required by §§ 8294 and 8295 of Crawford & Moses’ Digest. The remedy provided in the sections referred to in behalf of sureties who pay joint obligations is not exclusive but cumulative. In the enactment thereof the Legislature did not intend to oust the chancery court of its ancient jurisdiction to enforce contribution between joint judgment debtors by an independent action. In 13 C. J., p. 833, the rule is announced in the following language:

‘ ‘ Summary proceedings provided by statute for the enforcement of contribution constitute a cumulative remedy. They do not -bar an independent action.”

Appellant also contends for a reversal of the decree upon the ground that appellee estopped himself from claiming contribution from appellant by his neglect to collect the notes and accounts which had been delivered to him. These notes and accounts were assigned to the four stockholders mentioned above, including appellant and appellee, in equal proportion. That is, each was to have 25 per cent, of the amount of the notes and accounts, when collected, to apply upon his liability as indorser and guarantor. We find nothing in the record to indicate that the duty of collecting the notes and accounts was imposed upon either one of the indorsers or guarantors. The fact that they were in the manual possession of appellee did not impose any duty upon him to collect them and there was no agreement that he should do so. So far as the record reflects, appellant might have collected any of the notes and accounts himself. In view of this fact, he cannot say in good conscience that appellee is responsible to him for neglect or failure to collect any part of said notes and accounts. It is also argued that appellee should be required to account to appellant for at least 25 per cent, of the accounts he orally guaranteed totaling $2,996.05 on account of purchases made by his tenants from the corporation. This guaranty was oral and within the statute of frauds. It amounted to nothing more on the part of appellee than a moral obligation. He failed to collect the amounts from his tenants just as he did from the other debtors of the corporation. A' court of equity cannot enforce obligations which are of no binding effect on the parties interested.

Under our view of the law and the facts reflected by the record, appellant is entitled to a total credit of $435.48 on appellee’s claim of $2,214.21, including interest, leaving a balance due appellee of $1,778.73 instead of $1,410.22, the amount of the decree rendered in his favor.

The decree of the trial court is therefore modified to conform to this finding, and, as modified, is affirmed.


author: Mehaffy, J.

text:
    Gretzinger v. Wynne Wholesale Grocer Company.
    Opinion delivered February 23, 1931.

      Caraway, Baker S Gautney, for appellant.

      Giles Dearing, for appellee.
   Mehaffy, J.

On October 25, 1929,, the Wynne Wholesale Grocery Company, C. E. Martin and Morris Packing Company, commenced this action against S. C. Gretzinger, Robert Kirby and Dewey Sellers, alleging that Gretzinger and Kirby were owners and operators of a bakery at Wynne, consisting of an oven, mixer, engines, pans, cooking utensils, vessels and complete bakery outfit of the value of $3,500. Kirby had charge of and operated the bakery business and bought and sold all goods, wares, and merchandise and equipment used in the business.

S'. O. Gretzinger and Robert Kirby were partners and they became indebted to the Wynne Wholesale Grocery Company and others. Prior to the time that Gretzinger and Kirby became partners, Gretzinger owned the property and Luther Beck managed it. They rented the building, both of them signing the rental contract. Whether Gretzinger and Beck were partners is immaterial.

While Beck was managing the business, it was operated as the “Wynne Bakery.” After Kirby and Gretzinger formed a partnership it was operated as “Kirby’s Hot Shop.”

The stock of goods was bought by Kirby in the firm name, and it consisted of bakers’ supplies, flour, sugar, yeast, fuel, etc. The firm had a truck which it used to distribute the products. The daily amount of stock on hand averaged around $200 or $250. The bakery purchased raw material and made bread, cakes, cookies, pastries, etc., and sold these products at wholesale and retail. The fixtures consisted of show cases, wrapping counter, cash register, desk, chair, bread mixer, molding machine, baking utensils, and equipment. Gretzinger and Kirby sold to Dewey Sellers the fixtures and all property and good will for $3,000, $1,000 cash, $1,000 due in six months, and $1,000 due in one year, evidenced by two promissory notes, bearing six per cent, interest per annum.

The chancellor found that Gretzinger and Kirby, while operating the business as partners, contracted the debts sued for, and gave judgment against Gretzinger and Kirby for the amount of the debts. He also found that the sale by Gretzinger and Kirby to Sellers was in violation of the Bulk Sales Act, and that the said purchaser, Dewey Sellers, was liable as receiver, for all the goods, wares, and merchandise, together with the fixtures and equipment purchased from Gretzinger and Kirby, and restrained' Sellers from paying over to Kirby and Gretzinger any of the remaining $2,000 and impounded the notes in the First National Bank, and also held that the proceeds, when paid, be applied to the payment of debts proved against the Wynne Bakery and Kirby’s Hot Shop.

The undisputed proof shows that Gretzinger and Kirby owed the debts, and the chancellor ivas therefore correct in rendering judgment against them.

The important question in the case, however, is whether the sale by Gretzinger and Kirby to Sellers was in violation of the 'Bulk Sales Act.

This sale was made on October '23, 1929. The Bulk Sales Act, the violation of which is alleged by the appellees is act 23 of the Acts of the General Assembly of 1929, approved February 19, 1929. Among other things this act provides: ‘ ‘ The sale, transfer, mortgage or assignment in bulk of any part of or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conduct of any such business, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller, transferrer, or assignor, shall be void against the creditors of the seller, transferrer, mortgagor or assignor, unless the seller, transferrer, mortgagor or assignor and the purchaser, transferrer and assignor shall, at least ten days before the sale or the giving of the said mortgage, make a full, detailed inventory and preserve the same, etc.”

It is conceded that this act was not complied with. The contention of the appellant, however, is that a bakery is not included within the prohibition of the act; that the Bulk Sales Act does not apply to such a transaction.

Appellants call attention to and rely on Ramey-Milburn Co. v. Sevick, 159 Ark. 358, 252 S. W. 20. In that case the court said: “It is clear from the language used that the purpose was to regulate bulk sales of merchandise as a part of the stock of a mercantile establishment. It has no application to a manufacturing plant which sells its product merely as an incident to the business.” The court further said: “Other courts have so interpreted similar or identical statutes.” Citing numerous authorities.

In that case the merchantable property consisted of logs and lumber of small value compared to the aggregate value of all of the property conveyed. The property consisted of several small manufacturing plants in White County, one a veneer mill at Higginson, and four sawmill plants, one at Walker, one at Higginson, one at Crosby, and another at West Point.

It appears from that case that there was no stock of merchandise sold except some logs and lumber which were of small value. Certainly the manufacturing plants and real estate that were sold could not be said to be a stock of merchandise.

Another case cited and relied on was the Fisk Rubber Co. v. Hinson Auto Co., 168 Ark. 418, 270 S. W. 605. The court said in that case: “A stock of merchandise might, of course, consist solely or largely of automobile parts and accessories, but we have concluded that the finding of the court below that there was no sale of a stock of merchandise is not clearly against the preponderance of the evidence. The business sold was primarily and essentially a repair shop, including an agency for the sale of cars, but it is not contended that any automobiles were included in the sale. To carry on this business it was essential that various parts be kept in stock, but such parts were kept ordinarily for use in repairing cars, and the articles were usually adjusted to the cars of the purchaser.”

The sale of the property above described was not within the Bulk Sales Act.

In the case of Root Refineries v. Gay Oil Co., 171 Ark. 129, 284 S. W. 26, 46 A. L. R. 979, the cases relied on by appellant, Ramey-Milburn Co. v. Sevick and Fisk Rubber Co. v. Hinson Auto Co., were considered and the court said: “In this connection it may be stated that in Ramey-Milburn Co. v. Sevick, 159 Ark. 358, 292 S. W. 20, it was held that a person operating a veneer mill and sawmills, at which logs were manufactured into lumber and then sold, is not within the purview of our Bulk Sales statute, though he sells substantially all the lumber he has on hand at a particular time. The reason is that the sale of the lumber was only an incident to the operation of the manufacturing plant.

“On the other hand, if the main business of Seviok had been to operate a lumber yard, the sale in the bulk of his lumber and trade fixtures would have fallen under the ban of the statute, although he might have operated a sawmill and a veneer mill for the purpose of supplying, in whole or in part, stock for his lumber yard.

“Merchandise means something that is sold every day, and is constantly going out of the store and being replaced by other goods.”

The court in the last case quoted from, cited Boise Association of Credit Men v. Ellis, 26 Idaho 438, 144 Pac. 6, 6 L. R. A. 1915E, 917, a decision of the Supreme Court of Idaho. The Idaho statute did not include the word “fixtures” and the Supreme• Court of Idaho said that they could not read the word “fixtures” into the statute, and that merchandise, as used in this statute, must be construed to mean such things as are usually bought and sold by merchants. “Merchandise means something that is bought and sold every day, and is constantly going out of the store and being replaced by other goods; but the fixtures are not a part of the trade or business. They are not sold in the ordinary trade as goods.”

It is also said in the Idaho case that the complaint did not charge that the goods, Avares, or merchandise were sold to respondent Buhl, but it in effect claims that he should pay for them because he bought the fixtures, and this theory of the case would make the goods, wares and merchandise a part of the fixtures, instead of the fixtures being a part of the goods.

Our statute expressly includes fixtures and prohibits the sale in bulk of merchandise and fixtures in violation of its provisions. This court has held that a restaurant that had a soda fountain and sold cold drinks, cigars and confections, was not Avithin the purview of the Bulk Sales Law, the court saying in speaking of the things sold: “This was however, incidental to its main business, that of serving foods to its customers.” The court further said: “Clearly, we think, a keeper of a restaurant, whose business it is to serve food and drink to the public, is not engaged in the mercantile or merchandising business, nor is he a merchant within the meaning of the Bulk Sales Law. Even though he may keep some merchandise which is used or useful in his business, including cig’ars and cold drinks, still Ave are of the opinion that this does not change the character of the business but is only incident thereto.” D. C. Goff Co. v. First State Bank of DeQueen, 175 Ark. 158, 298 S. W. 884.

It was also held by this court that an electrical business which did repair work Avas not a merchandise business within the meaning of the Bulk Sales LaAV. The purchaser in that case “testified that he bought the contracting, wiring and repair business that ■Culberson and Benton then had on hand. * * * None of the material and supplies on which their accounts were based were in stock at the time he bought except one Westinghouse range, which was still on hand, which had been purchased from the Southwest Power Company. This was the only item in the stock at the time he bought that belonged to either the appellant or any of the intervening appellants. He further testified that 80 per cent, of the business is for contract work and repairs, and that the stock kept on hand is for his own convenience for fulfilling contracts and doing repair work. He stated that he Avoulcl not estimate that over 10 per cent, of his business Avas for sales of accessories and stock carried away by the customer at the time of sale.” Wellston Radio Corp. v. Calhoun, 175 Ark. 921, 300 S. W. 443.

In the instant case everything except the fixtures Avas not only for sale, but was sold every day and was constantly going out of the store or bakery and was being replaced by other goods. The principal business of the bakery was selling bread, cakes, cookies, pastries, etc. These were sold every day, and, while the stock kept on hand was not large, it Avas a stock constantly kept on hand, constantly being sold, and replaced by other goods. It is true that stock of merchandise Avas not large compared with the value of the fixtures, but our statute includes fixtures as well as the stock of merchandise.

A sale or transfer of property in bulk is not within the condemnation of the statute unless the property falls within the statutory description at the time of the sale, but both the merchandise and fixtures are within our statute, and there is no property involved in this case except property within the statute, merchandise and fixtures.

It has been generally held that goods, wares and merchandise includes all classes of commodities kept for sale in the usual course of trade. 27 C. J. 880.

The stock of merchandise or goods, wares, and merchandise, do not include fixtures or other property not kept for sale, although used in connection with the business. Fixtures are not kept for sale, and if not included in the statute, would not be within the Bulk Sales Act. Our statute, however, includes fixtures.

It therefore appears that there was nothing sold to Sellers except the things included in the Bulk Sales Act.

There is some conflict in the decisions of the different courts in construing these statutes. The conflict in the decisions, however, is largely because of the differences in the statutes themselves. Some statutes mention stock of merchandise or goods, wares and merchandise and other goods, wares, merchandise and fixtures. Courts construing the statutes that did not name fixtures have held that fixtures were not included; that fixtures were not a part of the stock of merchandise. We do not deem it necessary to review the authorities because we think what is meant by the Bulk Sales Act in this State is settled by the decisions of this court, and, while statutes of this character are to be strictly construed, and not extended by construction, it is equally true that they should be construed and applied with a view to cure the evil at which they are aimed.

The following cases, most of them annotated, are eases construing statutes similar to the one herein involved, Boise Association of Credit Men v. Ellis, 26 Idaho 438, 144 Pac. 6 L. R. A. 1915E, 617; Everett Produce Co. v. Smith, 40 Wash. 566, 82 Pac. 905, L, R. A. 2 (N. S.) 331; Plass v. Morgan, 56 Wash. 160, 78 Pac. 784; Gallus v. Elmer, 193 Mass. 106, 78 N. E. 772, 8 A. & E. Ann. Cas., 1067; Hanson v. Vose, 1441 Minn. 264, 175 N. W. 113, 7 A. L. R. 1573; Blanchard Co. v. Ward, 124 Wash. 204, 213 Pac. 929, 33 A. L. R. 59; McPartin v. Clarkson, 240 Mich. 390, 215 N. W. 338, 54 A. L. R. 1535.

The case of Root Refineries v. Gay Oil Co., supra, reviewed the cases decided by this court prior to that time and stated: “Merchandise means something that is sold every day and is constantly going out of the store and being replaced by other goods.”

The distinction between this case and the cases where sales of restaurants were considered is that the bakery was selling merchandise every day. It was constantly going out of the store and being replaced by other goods, whereas the principal business of a restaurant' is the serving of meals, not selling merchandise in the usual and ordinary way, and was therefore held to not be within the purview of the Bulk Sales Act.

The decree of the chancery court is affirmed.

Kirby, J., dissents.


author: Mehaffy, J. Smith, J.,

text:
    Short v. Kennedy.
    Opinion delivered February 23, 1931.

      O. II. Herndon, for appellant.

      O. A. Featherston, for appellee.
   Mehaffy, J.

This suit was begun by appellee, who filed the following complaint in the justice of the peace court in Pike County:

“That some time in the month of May, 1929, the de,fendant cut and converted to his own use 3,234 feet of pine logs from the lands of the plaintiff. That said logs so converted by the defendant are worth the sum of $30, and that the defendant has failed and refused and still fails and refuses to pay the plaintiff therefor, although payment has been repeatedly demanded of the defendant by the plaintiff. Wherefore plaintiff prays that he have judgment against the defendant for the sum of $30 with interest thereon from the date of the conversion of the said timber, together with costs of this suit, and for all other legal and other relief.”

The appellant filed several motions which the court overruled, and then answer was filed denying that appellee owned the land from which the timber had been cut and alleging that if any timber had been cut, it had 'been paid for in full. There was a trial and judgment for appellee for the amount sued for, and appellant appealed to the circuit court. In the circuit court objections to the jurisdiction of the court were renewed and the several motions of appellant were presented and overruled. The trial in the circuit court resulted in a verdict and judgment for the appellee, and the case is here on appeal.

JThe appellant contends, first, that the case should be reversed because the court did not require the appellee to file his title papers, and because the court did not require the appellee to allege in his complaint whether this was an action for breach of contract or trespass.

The introduction of the title papers, if necessary for any purpose, would be evidence, but it was not necessary for the appellee to file his title papers. The rule requires a statement of the facts constituting plaintiff’s cause of action, and it does not require the plaintiff in a case to file his evidence. Driesbach v. Beckham, 178 Ark. 816, 12 S. W. (2d) 408; Ellis v. First National Bank, 163 Ark. 471, 260 S. W. 714; Cox v. Smith, 93 Ark. 371, 125 S. W. 137, 137 Am. St. Rep. 89; Bruce v. Benedict, 31 Ark. 301; Turner v. Tapscott, 30 Ark. 312; Ferrell v. Elkins, 159 Ark. 31, 251 S. W. 380.

Appellant’s motion to require appellee to state whether he was suing on a breach of contract or for trespass was properly overruled. The complaint stated plainly that the appellant had converted logs belonging to the appellees, of the value of $30, and asked judgment for that amount. It was therefore perfectly plain from the complaint filed that it was a suit for the value of the logs.

Appellant’s motion to require the Caddo River Lumber Company and the Bank of Amity to be made parties was correctly overruled. His motion as to the Caddo River Company states no reason why the Caddo Lumber Company should be made a party. Without stating any facts at all, he simply asks that the Caddo River Lumber Company be made a party. In his motion to require the Bank of Amity to be made a party, he states that the legal title to the land from which the timber was cut is in the Bank of Amity. He does not state any facts, and some one other than the plaintiff might have the legal title to the land, and still the plaintiff have the right to sue for timber converted.

All of these questions, however, are now immaterial, even if the appellant had stated facts, instead of mere conclusions of law, in his motion and answer.

The appellant, however, contends that the suit was for a trespass on land in Montgomery County, and that the suit could only be maintained in the county where the land was situated, and relies on § 1164, C. & M. Digest. The fourth subdivision, the one relied on, reads as follows : ‘ ‘ Actions for the following causes must be brought in the county in which the subject of the action or some part thereof is situated. ® * * For an injury to real property.” And it is argued that this is an action: * * * Fourth. For injury to real property. This is not an action for trespass or injury to real property, it is a suit for the recovery of the value of certain log’s alleged to have been converted by appellant to his use.

The case of Jacks v. Moore, 33 Ark. 31, was a case, where the plaintiff alleged that the defendant entered on the land and cut timber growing thereon and otherwise injured the same, that is, injured the land. It was a suit for injury to the land.

In a later case the court, in discussing the ease of Jacks v. Moore, said: “That case fell directly and palpably within the very terms of the statute, and no question is made but that it was correctly decided.” Jones, McDowell & Co. v. Fletcher, 42 Ark. 422. The court also said in the last case mentioned: “The chief question is, and must be, in its ultimate form and effect: Does the decree appealed from operate directly and primarily upon the estate or title, or does it operate alone upon the persons of the appellants, and only indirectly and incidentally upon the estate or title?” In the instant case there can be no room for disagreement as to this question. The judgment does not and could not operate upon the estate or title, and nothing is sought except a personal judgment against the appellant.

This court has said: “It is contended that the demurrer to the interplea is good because the interplea raised an issue as to the title to land, which the justice of the peace had no .jurisdiction to try. This is incorrect. The interplea raised the question whether White-cotton, Wise and Cravens were tenants of Strayhorn, and whether they had contracted to pay or were obliged to him for rent, to recover which he was suing. Their contention was that they did not hold under him as tenants ; that he was not their landlord. An answer of this kind to an action in a justice’s court, setting up a want of title to the land, is not, of itself, sufficient to oust the jurisdiction of the court, without evidence on the trial tending to bring the title into question.” Jansen v. Strayhorn, 59 Ark. 330, 27 S. W. 230.

The court again discussing the case of Jacks v. Moore, supra, said: “ In Jacks v. Moore, supra, the complaint alleged that the defendant entered upon the following land (describing it) and cut the timber growing thereon, and otherwise injuring the same to the damage of the plaintiff $200. That was a suit for trespass upon the land and injury to it. But such is not the nature of this suit. It is simply a suit for the value of timber, which appellee alleged belonged to him, and which his agent, appellant, had converted to his own use. There is no allegation that the land itself was injured or damaged, or that appellant had trespassed thereon in order to convert the timber. The Columbia Circuit Court had jurisdiction, under the allegations of this complaint, to render judgment for the value of timber, if any, that was converted 'by appellant from the land in Nevada County.” Emerson v. Turner, 95 Ark. 597, 130 S. W. 538.

Like the suit in the last case cited, this is a suit for value of timber. There is no allegation that the land was damaged or injured, but a personal judgment against appellant for the value of the timber is sought, and the judgment in no way operates on or affects the title to real estate. The action therefor might be brought wherever service could be had.

It is argued by appellant that the case of Emerson v. Turner, supra, is in conflict with the case of Jacks v. Moore. There is no conflict. The case of Jacks v. Moore was a suit for damages to land, and under the statute that sort of a suit must be brought in the county where the land is situated. The case of Emerson v. Turner was a suit for the value of timber, just as the suit at bar is, and was not in any sense a suit for damages to land. Therefore the court in Montgomery County had jurisdiction.

It is contended, however, that the justice court had no jurisdiction because title to land was involved. The statute reads as follows: “A justice of the peace shall not have jurisdiction where a lien on land or title or possession thereto is involved.” And, of course, if the justice of the'peace had no jurisdiction, the circuit court would not acquire jurisdiction when the case was appealed, but in this case there was no question about a lien on land and neither the title nor possession was involved.

This was simply a suit to recover $30 alleged to be the value of timber belonging to the appellee converted by the appellant to his own use. It would make no difference where or how the appellee acquired the timber if it was his, but a bond for title was introduced showing that appellee purchased the land on the 7th day of October, 1919. Fifty dollars was paid cash, and the balance was to be paid in installments.

The evidence also shows that the appellee had been in possession and paying taxes since 1919, and no one else claims title or any interest in the land. Appellant offered no evidence tending to show that the land and the timber belonged to any one other than the appellee. The title to the land was therefore not involved, nor was the possession of the land involved. The appellee had been in possession of the land and paying taxes for more than ten years, this suit having been brought on the 20th of August, 1930.

“There was no controversy concerning the title to land. The plaintiff was not bound to prove or disprove her title to the land in order to establish her right to recover in the action. The undisputed evidence shows that she was to take possession of the land for the year 1910, and to receive the rent for the same. Her tenant left her share of the crop in the field, and she had a right to recover it from the defendant who had unlawfully taken possession of it. The lease contract was not an issue in the case, and the title to the land was not involved. ’ ’ Cline v. Cline, 101 Ark. 250, 142 S. W. 167; Mathews v. Morris, 31 Ark. 222; Nolen v. Royston, 36 Ark. 561; Bramble v. Beidler, 38 Ark. 200; Jordan v. Henderson, 37 Ark. 120; Jansen, v. Strayhorn, 59 Ark. 330, 27 S. W. 230.

The defendant in a suit cannot defeat the .jurisdiction of the justice court merely bj^ alleging that the plaintiff has no title. The evidence in this case clearly shows that the appellee had purchased the land in 1919, was in possession of it, and had paid taxes on it for more than ten years. No one else was claiming the title. The title to the land was not involved.

This was a suit for $30, the alleged value of timber, and the justice court had jurisdiction. The fact is that the appellant alleged that the timber had been paid for by the 'Caddo River Lumber Company, but that question was submitted to and determined by the jury, and we find no error, and the judgment of the circuit court is therefore affirmed.

Smith, J.,

(dissenting). Jurisdiction is determined by the allegations of the pleadings, and the majority opinion recites that the complaint filed in the justice court alleged that “The defendant cut and converted to his own use 3,234 feet of pine logs from the lands of the plaintiff.” It would be difficult, if not impossible, to cut that amount of timber without entering upon the lands upon which it stood, so that the complaint alleges a trespass upon land, and the character of the suit is not affected by the allegation that the defendant converted the timber after cutting it down.

The instant case is identical with that of School District v. Williams, 38 Ark. 454, in which it is recited that “School District No. 11, of Faulkner County, sued Williams in trespass before a justice of the peace for cutting and removing timber from a sixteenth section, and laid the damage at $100. ’ ’ Reversing the judgment for $72.50 in the circuit court upon the appeal from the justice court, Chief Justice English said: “The Constitution does not invest justices of the peace with jurisdiction of trespass upon real estate. Section 40, art. 7. The justice of the peace had no jurisdiction of the subject-matter of the action in this case, and all of the proceedings before him wore coram non judiee and void. ’ ’ The cases of Cockrum v. Williamson, 53 Ark. 131, 13 S. W. 592, and Halpern v. Burgess, 13 S. W. 763, are to the same effect.

The majority cite Jansen v. Strayhorn, 59 Ark. 330, 27 S. W. 230, and similar cases to the effect that “an answer of this kind to an action in a justice’s court, setting up a want of title to the land, is not, of itself, sufficient to oust the jurisdiction of the court, without evidence on the trial tending to bring the title into question. ’ ’ These are cases in which the relation of landlord and tenant was alleged to exist, and the holding of the court was that, if that relationship existed, the plaintiff’s title was immaterial, as the tenant could not question it.

The case of Bramble v. Beidler, 38 Ark. 200, cited by the majority, was one in which a grantor sued his grantee in the justice court for a balance of $92.75 due upon the sale of a small tract of land. It was held that the jurisdiction of the court was not affected by the denial of the plaintiff’s title to the land sold, the principle applied being that a purchaser, who had received a deed with covenants of warranty, under which he had entered into possession, could not, so long as he retained possession, deny his vendor’s title or refuse to pay the purchase money.

Here no relation is alleged to exist which precluded the defendant from questioning plaintiff’s title. On the contrary, it appears from the majority opinion that the defendant not only denies plaintiff’s title, but alleges it to be in the Bank of Amity, and that the plaintiff, so far from having a title, has only a bond for title. We have repeatedly held that a bond for title not only does not convey the title, but is not even color of title. It is a mere contract to make a title upon the performance of the named conditions. White v. Stokes, 67 Ark. 184, 53 S. W. 1060; Beasley v. Equitable Securities Co., 72 Ark. 600, 84 S. W. 224; Willm v. Dedman, 172 Ark. 783, 290 S. W. 361; Butler v. Johnson, 180 Ark. 156, 20 S. W. (2d) 639. Here defendant attempted to show that the title was in the Bank of Amity, and that plaintiff had only a bond for title, and the court refused even to make the Bank of Amity a party. If this 'bond for title should be canceled, there are possibilities of a suit for this same trespass on the part of the bank, the owner of the land, which is not concluded by the judgment here appealed from, as the bank was not a party to that suit. But, by whomsoever brought, the suit should have been commenced in the circuit court. Title to the land is essential to maintain a suit of this character, and, as was said by Judge English in the school district case, supra, the justice of the peace had no jurisdiction and all the proceedings before him -were coram non judice and void, and the circuit court, of course, acquired no jurisdiction on the appeal.

I am authorized to say that Mr. Justice Humphreys concurs in the views here expressed.


author: McHaney, J.

text:
    Jim Fork Coal Company v. Rhotenberry.
    Opinion delivered February 23, 1931.

      John W. Goolsby, for appellant.

      Earl Dumb and George W. Dodd, for appellee.
   McHaney, J.

Appellee, a coal miner, received personal injuries by tbe falling of a rock in an entry in tbe mine of appellant, in which he was working, and brought this action against it to recover damages therefor. He alleged negligence of appellant in failing to furnish props or timbers with which to support and safeguard the roof of the entry in which he was working, within a reasonable time after demand was made therefor by him. The case was tried to a jury which resulted in a verdict and judgment against appellant for $900.

For a reversal of the judgment against it, appellant first says the court erred in permitting the following question to be asked appellee: “Q. Describe the rock that fell from the roof and the cause of its falling. First, I will ask you, on the day of the injury did you request props and timbers?” Objection was made to the question on the ground that it was leading. The court permitted the witness to answer that he did ask for timbers. The above question could hardly be classed as leading, as it did not suggest the answer. The witness might have answered it yes or no. But, even if it were leading, it was not prejudicial, as all the appellee’s*evidence was to the effect that he did demand props, and that they were promised him but not delivered. Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S. W. 256. Such matters rest largely in the discretion of the trial court.

Appellee was also allowed to testify, over objections of appellant, that he ordered props sent down on Friday, Saturday and Monday, the day he was injured, and that some two or three were sent down on Friday, but that another workman in the mine, one Wooten got them. This testimony was competent as tending to show that props were demanded by appellee.

The other assignments of error urged relate to in structions 1 and 2 given by the court at the request of appellee and over appellant’s specific objections. We do not set them out and discuss them separately as no good purpose could bet served thereby. The court gave all instructions asked by appellant, except one, which was peremptory, and we think fully and fairly instructed the jury. The principal question was one of fact, that is, whether appellee had ordered props which appellant neglected to furnish, and whether the rock that fell and injured appellee was one that should have been propped, or should have been taken down. There is no question about the fact of appellee’s injury, or the extent and nature thereof, nor the amount of the verdict. The instructions being correct, and the evidence being ample to support the verdict, the judgment must be affirmed.

It is so ordered.


text:
    McNeese v. Raines.
    Opinion delivered February 23, 1931.

      Richardson $ Richardson, for appellant.

      W. P. Smith and O. G. Blackford, for appellee.
   McHaney, J.

Appellant brought this suit against appellee and one John Gullett to recover damages for personal injuries sustained by him while he and said Gullett were in the employ of appellee. Appellee is a contractor, and was engaged in the erection of a brick building in Hoxie, Arkansas. Appellant alleged that appellee negligently failed to furnish the employees a container or means of getting the 'brick wp on the scaffold for the masons to put in the wall, and that appellee directed him to stand on the scaffold, about 7 feet above the ground, and catch the brick as they were pitched to him by Gullett and stack same on the scaffold convenient to the masons; that the bricks were pitched up to him two at a time, and that, while placing two bricks on the scaffold with his face turned away from Gullett, Gullett pitched two more bricks before he was ready to receive them, which struck him in the groin, causing great pain, from which he fainted, fell off the scaffold and was severely injured. He later amended his complaint alleging negligence of the appellee in the employment of Gullett in that Gullett was incompetent “at and prior to the time plaintiff was injured,” because he was nearsighted and could not know that he was not ready to catch the brick at the time he was injured, which was known to the appellee, or, by the exercise of ordinary care, could have been known to him, and which was unknown to appellant. He further alleged that Gullett had a bad disposition towards appellee and1 the; other workmen which was also known, or by the exercise of ordinary care could have been known, by the appellee. It was further alleged that the manner of getting the brick upon the scaffold was dangerous, and that appellee was warned thereof by him, who agreed to furnish containers for carrying the brick up, of a kind similar to that used for carrying up the concrete, and that he relied upon such promise, but the appellee failed to furnish same.

Appellee interposed a general demurrer to the complaint and the amendment which was sustained by the court. Appellant declined to plead further and the court entered a judgment dismissing* his complaint. The case is here on appeal.

For a reversal of the case appellant relies upon two acts of negligence alleged in his complaint, one that appellee failed to furnish him a safe place to work, and safe tools and appliances with which to work-, and second that said Gullett was incompetent to do the work allotted to him with safety to appellant.

It is conceded that Gullett was appellant’s fellow-servant, and that appellee is not liable for the mere negligence of Gullett. Walsh v. Eubanks, ante p. 34, 34 S. W. (2d) 762, being* the latest case on the subject. The allegation in the complaint that appellee failed to furnish him a safe place to work and safe tools and appliances with which to work does not state a cause of action because it is not alleged that he was injured by reason of the unsafety of the place in which he was working nor by reason of any defect in any tools or appliances with which he was working. He was working on a scaffold. ¡It is not alleged that the scaffold was defective or that it fell or that he fell off the scaffold by reason of any defect therein. And he was not working with any tools or appliances. He was simply catching brick that were pitched to him by his fellow-servant, and any injury he received was caused by the negligence of such fellow-servant in pitching the brick at a time -when he was not ready to receive them.

As to the allegation that Gullett was incompetent to do the work with safety to appellant because of defective eyesight or bad disposition, we think the complaint fails to state a cause of action for the reason that, if it be true, as alleged, that he was so afflicted and had been all the time appellant was working with him, the means of discovering same was as open to appellant as to appellee. The allegation in the complaint is that Gmllett was incompetent “at and prior to the time plaintiff was injured.”

The complaint therefore failed to state a cause of action, and the trial court correctly sustained the demurrer.

Affirmed.