text:
    Sovereign Camp Woodmen of the World v. Pearson.
    Opinion delivered October 23, 1922.
    1. Insurance — benefit society — estoppel to deny reinstatement of member. — Where a member of a fraternal benefit society, failing to pay dues in January and reported in February' as' suspended, thereafter paid dues for January, February and March, without complying with the by-laws as to reinstatement, and the dues were remitted to the sovereign clerk, and, though the receipts stated that the dues were held in trust until compliance, receipts were subsequently given for the April and May dues, not containing such provision, and they were likewise forwarded to the sovereign clerk, who, with knowledge of the conditions, retained the payments until 'after the member’s death in June, the society was estopped to insist on a forfeiture.

      2. Insurance — custom to waive compliance with by-laws.— Where the local camp of a fraternal benefit society had authority under by-laws to establish a camp fund and to use it in whatever manner it deemed proper, and it followed.the custom of paying delinquent dues of members and permitting such members to pay at their convenience, without complying with a bylaw. as to reinstatement only on furnishing a certificate of good health, the society was estopped to insist, on a forfeiture because such health certificate was not required from a reinstated member.
    Appeal from Logan Circuit Court; George W. Clark, Judge;
    affirmed.

      T. E. Helm, for appellant.
    The deceased was not reinstated after being suspended simply by paying the dues, without furnishing the health certificate required by the by-laws of the order. 133 Ark. 411. He was presumed to know the laws of the order and the limitations of the powers of its officers and subordinate lodges. 104 Ark. 538. The receipt issued to Mm upon the payment of dues after becoming delinquent put him on notice that he must comply with the laws. Acceptance of the dues did not estop the appellant from showing that the- deceased was not in good health at the time of the payment. 80 Ark. 423. A suspended member must show he is in good health before he is entitled to reinstatement. 15 Colo. App. 538; 107 Ga. 115; 85 N. W. 160; 78 Miss. 525; 119 Mo. App. 222; 66 Co. 834, etc. The local clerk could not Waive the requirements of the certificate and of the constitution and laws. There was no evidence showing any manner of waiver, or upon which any claim of estoppel can be based against the right of appellant to insist upon the enforcement of this provision of its laws. Similar provisions are uniformly upheld. 15l N. W. 692; 114 N. Y. S. 480; 89 Atl. 301; 63 So. 571; 80 S. E. 545; 47 Atl. 257.
    The undisputed facts show that the insured did not remain in good health for 30 days after the attempted reinstatement, and there can be no liability,

      W. P. Beard, J. B. Reed, T. G. Trimble, T. G. Trimble Jr., for appellee.
    By reason of the custom established by the local clerk in accepting dues in arrearages without further action, the appellant is estopped from claiming a member suspended. 201 S. W. 800; 219 S. W. 759; 144-U. S. 36 L. Ed. 496; 109 N. W. 1099; 68 Neb. 660.
    Appellant is estopped by reason of the creation of a , local camp fund under the supervision of the Sovereign Camp, and establishing a custom of paying therefrom dues of its members. 219 S. W. 759; 2 May on Ins. 361. The following cases hold to the rule that a forfeiture may be waived by action of subordinate lodges or their officers acting within the scope of their authority, regardless of the manner provided by the by-laws for restoring members to good standing’: 163 U. S. 289'; 126 111. App. 15; Id. 439; 236 111. 113; 135 Iowa 88; 127 N. W. 869; 48 Hun 137; 112 App. Div. 708, 98 N. W. Supp. 974; 57 S. C. 16.
    The acceptance of dues in arrears and reporting them to the Sovereign Camp without requiring health certificate, created a waiver and estoppel. 135 Iowa 88; 69 Minn. 236; 102 Mo. App. 377; 95 Mo. App. 233.
   Wood, J.

The appellant is a mutual fraternal benefit society duly incorporated under the laws of Nebraska, with its home office in Nebraska, and doing business in this iState. It issued to one Sam P. Pearson its certificate or policy insuring his life in the sum of $1,000 in favor of his wife, the appellee, who is named as beneficiary in the policy. Pearson joined the society on October 30,1905. He failed to pay his monthly installment of dues for the month of January, 1920, and in consequence thereof, under the by-laws of the society, which were a part of the contract of insurance, he became suspended February 1, 1920. On the 16th day of March thereafter Pearson paid to the clerk of the local camp at Crump, Arkansas, the sum of $10.35, the same being installments or dues for January, February and March. The clerk of the local camp issued receipts for these payments. On the 6th of April Pearson paid his April dues, and on May 17th paid his May and June dues, and receipts were issued for these months also. The local clerk sent the fund to the sovereign camp, except for the month of June. He withheld that because Pearson died on the 28th day of May, and the June installment was not due the Sovereign Camp. At the time the local camp clerk received the payments for the months of January, February and March, he knew that Pearson was in bad health. He had mailed Pearson a certificate to be signed showing that he was in good health, but Pearson never did return it. When Pearson failed to pay his dues, his name was left off of the list of beneficiaries, and the records at the Sovereign Camp showed that he was suspended. Pearson’s name was still left blank for the months of February and March. The local camp clerk remitted the payments for those months in April and the appellant accepted it. The local .clerk at that time did not send to the appellant the reinstatement showing that Pearson was in good health.

A section of the by-laws of the appellant provides as follows: “Should a member be suspended more than three and less than six months for any cause, in order to be restored to beneficiary membership it shall be necessary for him to present a certioate of good health from the camp physician. * * * He shall pay four monthly installments of assessments and dues to the clerk of the camp. Three installments of assessments shall be forwarded immediately by the camp clerk, with the certificate of good health, to the sovereign clerk. The fourth shall be placed to the credit .of the member as payment for the current month, and upon receipt and acceptance of said three monthly installments of assessments by the sovereign clerk, if the member shall remain in good health for the next thirty days following, his beneficiary certificate shall be in full force and effect.”

Another section provides as follows: “That, after the expiration of ten days, and within three months after the date of the suspension, the suspended member to reinstate must pay to the clerk of the camp all arrearages ■and dues and deliver to him a written statement and warranty, signed by himself and witnessed, that he is in 'good health 'at the time, and continue in good health for ‘thirty days thereafter, * * * as a condition precedent to reinstatement, and waiving all rights hereto if such written statement and warranty be untrue.”

Another section provides that “any attempted reinstatement shall not be effective for that purpose unless the member be in fact in good health at the time and continue in good health for thirty days thereafter, and if any of the representations or statements made by said applicant are untrue, then said payments shall not cause his reinstatement nor operate as a waiver of the above conditions.”

Another section provides: “No officer, employee or agent of the Sovereign Camp, or of any camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or - to change, vary or waive any of the provisions of this constitution or these laws, nor shall any custom on the part of any camp or any number of camps, with or without the knowledge of any sovereign officer, have the effect of so changing, modifying, waiving or foregoing such laws or requirements.”

One of the laws of the appellant provides as follows: “On or before the twentieth day of every month he (sovereign clerk) shall mail a notice to the last known address of the counsel commander, clerk, banker and auditors of every camp from which no teport or remittance for the month has been received, stating the fact therein. As soon as the required monthly report has been received from a camp, he shall mail a notice to the last known address of every member reported suspended in said report, informing him of the requirements of the laws of this society to become reinstated, but the failure to send such notice shall in nowise affect the legal suspension of such members.”

It was in proof that Pearson never received notice from the appellant that he had been suspended. It was shown that it was the custom of Pearson to pay his dues each month if it was convenient, but the local clerk had established the custom of accepting dues from Pearson, when he was in arrears from thirty to sixty and ninety days, without any further requirement. This was perfectly agreeable and had always been the case as to the payment of dues by Pearson. The local camp clerk had been given authority to establish what was known as “home camp dues,” and after the local camp got strong enough and had money enough it would draw on that amount and send the dues of delinquent members in, and such member paid the local clerk at his own convenience. Sometimes the member would be a month behind and would pay for two months, that is, for the current month and a month or two ahead. The names of the members who were in arrears were left off in remitting to the head camp, and later, in a succeeding report, the arrears and dues for that particular month were included. No certificate of good health was furnished, and it was not required to be furnished by the Sovereign Camp. The appellant received and retained the payment of the dues for the particular member who had been in arrears and would issue its receipt for such dues. The local clerk was supposed to follow the directions of the head or sovereign clerk, and the sovereign clerk was supposed to furnish the local clerk with such blanks and papers as the local clerk was expected to use. The local clerk did not report to the sovereign clerk, when a member had, been suspended, whether or not the member had furnished him with a certificate of good health. When the member came and paid the dues in arrears, the local clerk would reinstate him, and would report that such-member was reinstated, to the sovereign clerk, and the appellant Wjould accept the money. The local clerk’s boobs showed that Pearson had been suspended and was reinstated on June 6,1919, by payment of back dues, and without his physician’s certificate of good health attached. The local clerk did not send the appellant a doctor’s certificate, but appellant received the dues, and such was the custom.

There was nothing in the constitution or by-laws of the appellant that required the local clerk to send to the sovereign clerk a doctor’s certificate showing good health of the member unless the member was suspended for more than three months. Pearson was not suspended for a longer period of time than ten days. All the records kept by the local camp were forwarded to the appellant, and the only record kept by the local clerk was a duplicate of the report made by the local clerk upon the forms furnished by the appellant. The appellant tendered to the appellee the sum of $20.40, the amount of all dues and moneys paid by Pearson after January, 1920, which she refused to accept. Upon the refusal of the appellant to pay the appellee the amount named in the certificate, she instituted this action thereon, setting up a full compliance on the part of Pearson at the time of his death with the terms of the contract of insurance, and praying judgment for the full amount of the policy.

The appellant defends on the ground that Pearson had not complied with the terms of the contract as to the payment of dues; that he had been suspended and was never reinstated as the laws of the society required, and that under these laws the contract at the time of Pearson’s death was void. At the commencement of the trial the appellant tendered to the appellee the further sum of $3.45, making a total of $23:85, the monthly dues that had been paid by Pearson after his suspension up to the time of his death, which the appellee refused. The cause proceeded to trial, and the facts as above set forth were developed. At the conclusion of the testimony each party requested a peremptory instruction. The court instructed the jury to return a verdict in favor of the appellee in the sum of $1,000, and from a judgment rendered in her favor for that sum is this appeal.

The judgment is correct. This case on the facts is ruled in principle by the doctrine of this court announced in the opinion on rehearing in the case of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 158, where, quoting from 2 May on Insurance, § 361, we said: “Forfeitures are so odious in law that they will be enforced only where there is the clearest evidence that such was the intention of the parties. If the practice of the company and its course of dealings with the insured, and others known to the insured, have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted on, the company will not be allowed to set up such a forfeiture, as against one in whom their conduct has induced such belief.” In that case we further said: “The clerk, through a period of years, had adopted the method set forth in the original opinion, which was clearly calculated to induce the belief on the part of Newsom that his dues had been paid according to the method adopted by the local clerk for collecting the dues and reporting the same, and that the society had accepted such payments and would therefore not insist upon a forfeiture because of the failure of the clerk to comply, in this respect, with its laws and constitution.

In the case of Sov. Camp W. O. W. v. Barnes, 154 Ark. 486, we held that the requirement o.f the by-laws concerning a certificate of good health as a condition precedent to the reinstatement of a suspended member is not waived by the retention for a time of a remittance and until after the death of the deceased. We also held that there was no waiver of the noncompliance with the provisions of the by-laws merely by the acceptance by a local officer of the dues and assessments.” Citing W. O. W. v. Jackson, 80 Ark. 419; Sov. Camp W. O. W. v. Anderson, 133 Ark. 411.

But in none of these oases was there any testimony to prove that the sovereign clerk continued to receive the payments of monthly dues after he had knowledge of the fact, or under circumstances which charged him with knowledge, that the delinquent member had not been reinstated. Here the testimony tended to prove that the local clerk followed the directions of the sovereign clerk; that the sovereign clerk was to furnish to the local clerk the form of the certificate for reinstatement, which was to be signed by the delinquent member; that no such blank certificate was ever furnished by the sovereign clerk to the local clerk. The only record kept by the local clerk was a duplicate of the report made by him upon the forms furnished by the appellant. Now, the local clerk, whose duty it was to collect the monthly dues and to report the standing of members to the Sovereign Camp, notwithstanding the fact that Pearson failed to pay his dues in January and was reported in February as suspended to the sovereign clerk, nevertheless thereafter collected the dues for January, February and March without a compliance on the part of Pearson with the requirements of the by-laws for reinstatement. The local clerk also reported to the sovereign clerk in April .showing that Pearson had been reinstated, but he did not accompany this report with the certificate showing that Pearson was in good health and had complied with the requirements of the by-laws for reinstatement, The sovereign clerk was thus advised that Pearson had not complied with the requirements of the by-laws and had not been properly reinstated. While the receipts given to Pearson by the local clerk show that the dues paid for January, February and March were held in trust until all the requirements of the society relative to reinstatement had been complied with, yet he forwarded these dues and receipts therefor to the sovereign clerk without any certificate of good health of Pearson, and the sovereign clerk, after being thus advised that the requirements had not been complied with by Pearson, did not promptly return these dues for January, February and March. On the 6th day of April Pearson paid his April dues, and on May 17th he paid his May and June dues, and the receipts issued by the local clerk for these dues did not show that they were held in trust awaiting the certificate of good health as required by the by-laws. The local clerk forwarded these dues for April and May and June to the sovereign clerk, and there was still no certificate of good health showing that the requirements as to reinstatement had been complied with, and the sovereign clerk had not sent any such blank or certificate to the local clerk for Pearson to sign. Instead of promptly returning these dues and advising the local clerk that the requirements as to reinstatement had not been complied with, and forwarding the necessary blanks for reinstatement, the sovereign clerk, who, under the circumstances, must be held to have had knowledge of all these conditions, retained the dues until after the death of Pearson, without any inquiry of the local clerk or Pearson as to why the requirements as to reinstatement had not been complied with. The sovereign clerk could not continue to accept and retain the payments of dues after he knew, or should have known, that Pearson was not re instated according to the laws of the order.

Furthermore, there was testimony sufficient to show that a general custom had béen established in the local camp of allowing its members who were in arrears to be reinstated by paying their delinquent dues without complying with the requirements, of the by-laws for reinstatement. The Sovereign Camp accepted and retained the dues in such cases, knowing that certificates of good health of the defaulting members had not been furnished. There was proof that the local camp had established a fund known as “home camp dues,” and when a member was delinquent for a month or two months the local clerk would draw on this fund 'and pay the delinquent dues, and give the member in default the privilege of paying at his own convenience. Authority was given under the by-laws and under the- direction of the head camp, to establish that fund, and the local camp was privileged to use- such fund to defray its expenses and in whatever manner it deemed proper. It will thus be seen that the facts of this case clearly differentiate it from the facts of the eases of Sovereign Camp W. O. W. v. Barnes, and W. O. W. v. Jackson, and Sov. Camp W. O. W. v. Anderson, supra.

Thus was established a course of conduct on the part of the local clerk which was acquiesced in and approved by the Sovereign Camp, which was calculated to mislead Pearson and cause him to believe that the Sovereign Camp was not insisting on the certificate of good health; and to cause him to make his payments believing that he was in good standing with the society. This conduct was such as to estop the appellant from insisting, under the doctrine of the Newsom case, supra, on the forfeiture of the policy because of the noncompliance with the bylaws as to reinstatement. See, also, Sov. Camp W. O. W. v. Richardson, 151 Ark. 231-236; Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133-139. Cases from other jurisdictions are cited to the same effect and relied on in appellee’s brief, but it is unnecessary to cite these, as the case is controlled by the doctrine of estoppel announced in Sov. Camp. W. O. W. v. Newsom, supra.

The judgment is therefore correct, and it is affirmed.


source: Caselaw Access Project

author: Wood, J. McCulloch, C. J.

license: Public Domain

text:
    Hoxie v. Gibson.
    Opinion delivered October 23, 1922.
    1. Judgment — res judicata. — Where the only issue in a former suit was as to the title to property, and no issue was raised as to the validity of an act providing for condemnation of land for street purposes, a statement in the opinion of this court in the former suit that plaintiff’s “authority under the act to proceed in condemnation is still unimpaired,” even if it could be construed as holding that the act was valid, was obiter diictwm and not conclusive upon that question in a subsequent proceeding.

      2. Constitutional law — denial of right op appeal. — .Under Const. 1874, art. 7, §§ 1, 4, providing that the judicial power shall be vested in certain courts and that appeals from, inferior courts shall lie to the Supreme Court, the Legislature cannot designate a tribunal other than a common-law jury to ascertain the value of land condemned and the amount to be paid therefore, and make the finding of such tribunal conclusive; the determination of such matter being a judicial function and reviewable by the courts.
    3. Constitutional law — due process. — Sp. Laws 1921, p. 826, authorizing a town to institute proceedings to determine whether any one had acquired rights in a street and providing for the appointment of appraisers whose finding would be conclusive as to the value of the property taken, is invalid as depriving the owner of his property without due process.
    , Appeal from Lawrence Circuit Court, Eastern District ; Dene H. Coleman, Judge;
    affirmed.

      Ponder & Gibson, for appellant.
    The act was constitutional, and provided a method for the condemnation of the street and property, and the demurrer should have been overruled.
    Where the Legislature has erected a tribunal for the purpose of ascertaining and declaring the result of an election, its decision is conclusive, and cannot be reviewed by the courts. 96 Ark. 411; 32 Ark. 553; 78 Ark. 432.
    A jury trial is not necessary to constitute due process of law in every case. 32 Ark. 553; 40 Ark. 290. Jury trials are not necessary in summary proceedings, unless required by statute. 4 B. L. Com. 280; 62 Ala. 596.
    The constitutional guaranty of trial by jury in condemnation proceedings relates only to private corporations. Art. 12, see. 9, Const. 1874; 124 Ark. 61; 132 Ark. 412; 134 Ark. 121; Elliott on Roads & Highways, vol. 1, sec. 224; 134 Ark. 293; 124 Ark. 569; 75 Ark. 530.
    Condemnation proceedings are not common-law actions, and when they meet the constitutional requirements, they are valid. I Lewis on. Eminent Domain, secs. 311-314; 64 Ark. 562; 79 Ark. 159; Tiedeman, Lim. Police Powers, sec. 374; 69 Ark. 642.

      W. A. Cunningham and Cohn, Clayton & Cohn, for appellee.
    The act is unconstitutional because it provides for trial of a judicial question in a way hot authorized by the Constitution. Sec. 22 of the Declaration of Rights, Const. 1874; 134 Art. 121; 49 Art. 492; 72 Ark. 357; 148 Ark. 271; 76 Ark. 184; 134 Ark. 292.
   Wood, J.

This action was instituted by appellant against the appellee to condemn a strip or parcel of land in the incorporated town of Hoxie, Arkansas, for a street. This court, in Hoxie v. Gibson, 150 Ark. 432, decided that the land in controversy was owned by Anna B. Gibson, the appellee herein. The present action was instituted under act No. 397 of the Special Acts of 1921, p. 826. Section 1 authorizes the town of Hoxie to sue for the land in controversy. The act further provides: “Sec. 2. If said circuit court finds that other parties have acquired rights in said street, it shall appoint three citizens of Lawrence County to act as appraisers, and said appraisers shall meet and view said street so sought to be opened, and shall appraise the damages which the parties having rights in said street will suffer by reason of its opening. Said appraisers shall notify the mayor or recorder of the incorporated town of Hoxie of the day when they will make their appraisal, and they will also notify the parties claiming the rights in said street, and they shall make their appraisal only after they have heard both sides and such witnesses as the respective parties bring before them. Their appraisal shall be conclusive as to the value of the property taken, and without appeal.

“Sec. 3. When the appraisal has been made, the town council of the incorporated town of Hoxie shall determine whether they are willing to pay the 'amount thereof and to open said street, and in the event they determine to open said street, the incorporated town of Hoxie shall execute and deliver to the parties who are adjudged by the circuit court to be the owners of said ' street, the warrants of said incorporated town, drawn on its treasurer, for the amount of the appraised value of said street, and thereupon the said incorporated town of Hoxie shall open said street for use as a public highway.”

The appellant set up the act and prayed that the land described in its complaint be condemned according to its provisions. The appellee entered a special demurrer to the complaint on, among other, the following grounds:

“1. That the act under which this suit is brought is unconstitutional, because it seeks to deprive defendant of her property without due process of law, is unequal and discriminative, and is in contravention of the provisions of the Constitution of the State of'Arkansas and of the Fourteenth Amendment of the Constitution of the United States.” ■

“3. Because said act seeks to bind defendant by a verdict and judgment in this court without the right of appeal therefrom to the Supreme Court of Arkansas, and is in contravention of article VII, section 4, of the Constitution of Arkansas, which gives the right of appeal in all cases.”

The trial court sustained the demurrer. Appellant stood on its demurrer, and the court rendered a judgment 'dismissing the complaint, and for costs, from which is this appeal.

In Hoxie v. Gibson, supra, speaking of the act under review, we said: “But appellant’s authority under this statute to proceed to condemnation of the property is still unimpaired, notwithstanding the decree adjudicating and quieting appellee’s title to the property, for, us before stated, the only purpose of this act is to prescribe the method of condemnation.” The appellant says that this court “in this decision practically held that this act was legal and binding, and that it was a method of condemnation which could be followed and pursued by 'appellant. ’ ’ But not so. The issue before the chancery court in Hoxie v. Gibson, supra, was only as to the title to the property, and we affirmed the decree of the chancery court quieting the title in Mrs. Gibson. No. issue as to the right of condemnation of the land in controversy under special act 397, supra, was raised in that case. Therefore, the language from the decision quoted supra was not intended, and can not fairly be construed, to hold that special act 397 was ,a valid act. If the language were susceptible of that interpretation, it would be pure obiter, and not binding on the court in this lawsuit. The issue, and the only issue in the instant case, is whether or not special act 397, supra, is a valid act.

In Cribbs v. Benedict, 64 Ark. 562, we said: “Eminent domain and police power aré attributes of political sovereignty, for the exercise of which the Legislature is under no necessity to address itself to the courts. It determines the mode and the occasion of the exercise of these supreme powers, untrammeled by constitutional restraints. It may or may not, in its discretion, clothe the proceedings with the forms or substance of judicial process, and when provision has been made for just compensation to the landowners for his land taken, the expression of the legislative will authorizing such taking is of itself due process.” And in Board of Directors St. Francis Levee District v. Reddit, 79 Ark. 159, we said: “Condemnation proceedings are not common-law actions, and when they meet the constitutional requirements and provide for due notice to the parties affected, they are valid, although they may not provide for a trial in course of the common law.”

Learned counsel for appellant quote and rely upon the doctrine of the above cases to support their contention that it was within the power of the Legislature in condemnation proceedings to constitute a board of appraisers and to delegate to such board the absolute authority to determine the value of the land condemned, after notifying the parties and giving them the right to adduce testimony and be heard by the board on the-issue of compensation to be awarded the landowners for their property. Under our Constitution “the right of property is before and higher than any constitutional sanction, and private property shall not be ■ taken, appropriated, or damaged for public use without just compensation.” Now, the right of the State and its subordinate governmental agencies, under the power of eminent domain, to condemn and take private property for public use is beyond question. In addition to above, see Sloan v. Lawrence County, 134 Ark. 121-128 et seq., and cases there cited; Dickerson v. Tri-County Drainage Dist., 138 Ark. 471.

The Legislature undoubtedly has the power to determine whether the necessity exists for such condemnation, but it has no power to create a tribunal and vest it with absolute authority to condemn private property without just compensation, or upon such compensation as such tribunal may determine, and make the findings of that tribunal or board conclusive upon the issue of compensation. The jurisdiction to determine the necessity for condemnation is one thing. That is purely a legislative function, which the Legislature may exercise untrammeled. The jurisdiction to determine the value of the land condemned and the compensation to be rendered the owner therefor, is another thing. The latter power is purely a judicial function which none but the courts can exercise. If the Legislature designates a tribunal other than a common-law jury to ascertain the value of the land and the amount of compensation to be paid the owner therefor, then the finding of such tribunal on the issues of fact must be subject to review by the courts. The right of appeal from such finding through to the court of last resort can not be taken away. Art. VII, see. 4, Const. Ark. If this procedure is not followed, then the landowner is deprived of his property without judicial inquiry, i. e., without the due process guaranteed by our Constitution and the Constitution of the United States. Article II, secs. 21 and 22, Constitution of Arkansas; articles 5 and 14, Const, of U. S.; Matter of City of Buffalo, 139 N. Y. 422, 430-31.

Sec. 1, article 7, of our Constitution provides that the judicial power of the State shall be vested in certain courts designated therein. In Monongahela Navigation Co. v. United States, 148 U. S. 312, Mr. Justice Brewer, speaking for the court, says: “The Legislature may determine what private property is needed for public purposes — 'that is a question of political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the Legislature, its representatives, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry. 'See, also, 3 Dillon, Mun. Corp. sec. 1055; 3 Fletcher, Ency., sec. 1506; Ex parte Martin, 13 Ark. 198.

In addition to the above cases of our own court, learned counsel for appellant cite many other decisions of this court holding that it is within the power of the Legislature in matters that are purely administrative or ministerial to constitute a board or tribunal for determining such issues and making the finding of such tribunal conclusive; and also cases in which we have held that, in certain summary proceedings in the courts, it is within the province of the Legislature to confer upon the courts the right to determine certain issues without the intervention of a jury. But this court has never held that the issues as to the value of land and compensation to be paid to the owner for the condemnation and taking thereof is a legislative question and that such power can be lodged in any tribunal other than the courts. In Missouri Pacific Ry. Co. v. Conway Bridge District, 134 Ark. 292, we said: ‘ ‘ The circuit court acts in a judicial, and not an administrative, capacity, and under the Constitution an appeal to this court (the Supreme Court) will lie from all final judgments and orders of the circuit court. The right of appeals extends to special proceedings.”

The act under review makes the finding of the appraisers conclusive as to the value of the property taken, and expressly denies the landowner the right of appeal. This is clearly contrary to the provisions of our Constitution and the decisions construing the same. Our conclusion therefore is that the act is unconstitutional and void.

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

McCulloch, C.J., and Smith, J., dissenting.

DISSENTING OPINION.

McCulloch, C. J.

It is the law, beyond dispute, that the ascertainment of compensation for the taking of private property for public use under the power of eminent domain is judicial in its nature. The recognition of this principle of law is so universal that it needs no citation of authority to support it, but the majority have cited and relied on the decisions of the Supreme Court of the United State in Monongahela Navigation Co. v. United States., 148 U. S. 312. No authorities have been cited in the majority opinion in support of the conclusion they reach that a judicial inquiry necessarily means some form of trial by the established courts of the State. The same court upon which the majority relies, speaking through the same learned judge (Mr. Justice Brewer), said this:

“It is within the power of the State to provide that the amount shall be determined in the first instance by commissioners, subject to an appeal to the courts for trial in the ordinary way; or it may provide that the question shall be settled by a sheriff’s jury, as it was constituted at common law, without the presence of a trial judge. These are questions of procedure which do not enter into or form the basis of fundamental right. All that is essential is that fin some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution.” Backus v. Fort Street Union Depot Co., 169 U. S. 557. There are equally clear announcements of the law on this subject by the Supreme Court of the United States in other cases.

In the case of United States v. Jones, 109 U. S. 513, Mr. Justice Field, speaking for the court, said:

“The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon. Whether the tribunal shall be created directly by an act of Congress, or one already established by the States shall be adopted for the occasion, is a. mere matter of legislative discretion. ’ ’

It is interesting in this connection to notice the fact that Mr. Justice Field delivered the opinion of the Supreme Court of California, while he was the Chief Justice of that State, in the case of Koppikus v. State Capitol Commissioners, 16 Cal. 248, which involved the validity of a statute authorizing the building of a State capital building at Sacramento and providing a method of condemnation of property and awarding compensation. The statute provided for the ascertainment of the amount of compensation to the owners of property by the commissioners appointed to act for the State. In upholding that provision the court said:

“The proceeding to ascertain the value of plaintiff’s property, and the compensation to be made to him when taken, is not an action at law; it is an inquisition on the part of the State for the ascertainment of a particular fact, as preliminary to future proceedings, and it is only requisite that it he conducted in some equitable and fair mode, to be provided by law, either with or without the intervention of a jury, opportunity being allowed to the owners or parties interested in the property to present evidence respecting its value, and to be heard thereon.”

The rule of law on this subject has been clearly stated by the text-writers, and an abundance of authority is cited in support of the announced rule. In fact, I am unable to find any authorities to the contrary.

In Lewis’ Eminent Domain (vol. 2, p. 927) the statement of the law is as follows:

“In the absence of any special constitutional provision prescribing how compensation shall be ascertained, there is no limitation on the Legislature, except the provision that no man shall be deprived of his property except by due process of law or the law of the land. The Legislature may provide such mode as it sees fit for ascertaining the compensation, provided only that the tribunal is an impartial one and that the parties interested have an opportunity to be heard. A court or judge, with or without a jury, is an impartial tribunal; so are any disinterested men of integrity and fair intelligence forming a committee or board. ’ ’

Mr. Elliott in his work on Roads and Streets (vol. 1, sec. 311), in discussing the method of ascertaining compensation for property taken, says:

“The character of the tribunal, including the manner in which its members shall be selected, is a matter to be determined by the Legislature, except where the Constitution directs how the tribunal shall be selected and what its character shall be.”

The following decisions on this subject may be consulted with profit by any one desiring to pursue the inquiry: Langford v. Commissioners of Ramsey County, 16 Minn. 375; Ames v. Lake Superior & Miss. R. R. Co., 21 Minn. 241; State of Minn. v. Rapp, 39 Minn. 65; Lafayette v. Butner, 162 Ind. 460; New Orleans, etc., Rd. Co. v. Drake, 60 Miss. 621; Kramer v. R. R. Co., 5 Ohio St. 140; State v. Spencer, 53 Kan. 653.

In each of the three Minnesota cases cited, above, the rule announced by the text-writers as quoted above is clearly stated. In the last of the cases in that court cited above the opinion was delivered by Judge Mitchell, and he said:

“The manner of the exercise of this right (the right of eminent domain) is, except as to compensation, unrestricted by the Constitution, and addresses itself to the Legislature as a question of policy, propriety, or fitness, rather than of power. * * * Neither are the} bound to submit the question of compensation incident to the exercise of the right of eminent domain to a judicial tribunal. Provided it be an impartial tribunal, and the property-owner has an opportunity to be heard before it, the Legislature may refer the matter for determination to a jury, a court, a commission, or any other body it may designate.”

In the face of these authorities, and without finding any authorities to the contrary, I am unable to agree with the conclusion of the majority that the statute in question is void because it fails to provide for a trial in one of the established courts of the State. The Constitution of this State does not require that all such inquiries shall be submitted to the courts of the State. The only provision in the Constitution in regard to the exercise of the right of eminent domain is that property shall not be taken for public purposes without due compensation. There is no attempt to prescribe the method of ascertaining compensation, and that is, necessarily, left to the will of the Legislature. Nor has it ever been held by this court that judicial power must necessarily be exercised by the established courts in every instance. Qn the contrary, we have decided that many questions. submitted to other tribunals are judicial or quasi-judicial in their nature. For instance, we have held that the various boards created by the Legislature for administrative purposes may, in some instances, act in a judicial or gwasi-judicial character, and that when so acting their judgments are subject to review. State v. R. R. Commission, 109 Ark. 100; Hall v. Bledsoe, 126 Ark. 125. We have also held that a city council may act in a quasi-judicial capacity. Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196. In that case the opinion was written by Judge Battle, and he cites many instances of special tribunals acting in a judicial capacity.

The majority seem to be influenced by the fact that there is no provision for appeal in the statute under consideration, and that this leads to the conclusion that the statute is void. It has never been held by any court, so far as I am advised, that a provision for an appeal is essential in order to constitute due process of law within the meaning of the State and Federal Constitutions. The only essentials to “due process of law” are an impartial tribunal and due notice to interested parties and opportunity to be heard. There is nothing in our Constitution which requires that an appeal must lie from all tribunals exercising judicial or qwtsi-judicial functions. The Constitution does contain specific provisions with reference to the right of appeal from each of the established courts, but there is no general provision concerning the right of appeal, and in the cases cited above we held that certiorari would lie to review the judgments of gmsi-judicial tribunals for the reason that there is no right of appeal.

This decision is, in my judgment, very far-reaching in its effect, and it necessarily follows from it that in every instance where property is damaged or taken for public purposes, be it for roads, or drains, or levees, there must be an ascertainment of the value or damage in an established court having jurisdiction of the subject matter. I do not believe that such is the law, and I emphatically dissent from the conclusion announced.

I am authorized to say that Mr. Justice Smith shares in the views that I have expressed.


author: Hart, J.

text:
    Morse Brothers Lumber Company v. F. Burkart Manufacturing Company.
    Opinion delivered October 23, 1922.
    1. Appeal and error — supersedeas bond — judgment.—Sureties on the supersedeas bond of defendants become in legal effect parties to the suit, and in case of affirmance judgment may be rendered against them by the Supreme Court without notice to them.
    2. Execution — stay bond.- — Sureties on a supersedeas bond executed by defendants appealing from a judgment for plaintiff, having made themselves parties td the suit by signing a ■ supersedeas bond, are defendants within the statute relating to stay of execution in the hands of an officer.
    3. Execution sureties on supersedeas bond cannot sign stay bond as sureties. — Sureties on a supersedeas bond, having become defendants to the action by signing defendants’ supersedeas bond, cannot as sureties sign a bond to stay execution on the judgment against them, but may sign as principals.
    Appeal from Pulaski Circuit Court; Archie F. House, Judge;
    motion to quash stay bond denied.

      Rogers, Barber & Henry, for appellants.

      Poe & Poe, for appellee.
   Hart, J.

F. Burkart Manufacturing Company recovered judgment in the circuit court against Jeter Morse and S. J. Morse, partners doing business as the Morse Brothers Lumber Company, in the sum of $2,466.76 for lumber sold to the defendants.

The defendants appealed to this court, and executed an appeal bond under the statute. The supersedeas bond was duly approved by the clerk of this court and a supersedeas was issued. The judgment of the circuit court was affirmed on June 26, 1922. Morse v. Burkart Mfg. Co., 154 Ark. 362. On the 14th day of July, 1922, at the request of the F. Burkart Manufacturing Company, an execution wjas issued by the clerk of this court against the defendants, including the sureties on their appeal bond. The defendants in the action and the sureties on their appeal bond filed a stay bond under the provisions of secs. 4294-4297 of Crawford ■& Moses’ Digest.

The plaintiff, F. Burkart Manufacturing Company, has filed a motion to quash the stay bond.

In the first place, it may be stated that the sureties of the defendants on the supersedeas bond became in legal effect parties to the suit under our statute, and, in case of affirmance in such cases, judgment may be rendered against them by this court without notice to them. White v. Prigmore, 29 Ark. 208, and Rogers v. Brooks, 31 Ark. 194.

The sureties on the supersedeas bond having made themselves parties to the suit by entering into the appeal bond, are defendants within the terms of the statute relating to stay of execution in the hands of an officer. The statute provides that the defendants may give a stay bond, and, as we have already seen, the sureties on the appeal or supersedeas bond became defendants to the action by signing it.

The language of the statute authorizing a stay of execution by defendants giving bond as prescribed by the statute, does not limit the right of such stay to the circuit or chancery courts. To limit the right of stay to the lower courts which have jurisdiction to render original judgments and decrees would restrict the language of the statute within less than its, ordinary and plain meaning. The sureties on the appeal bond having become defendants to the action by signing the same, cannot sign the stay bond as sureties, but must sign it as principals. The stay bond is defective in this respect, and leave will be given to the defendants, as defined above, to secure proper sureties on the stay bond, if they are so advised and desire to do so.

It follows that the motion to quash the stay bond will be denied.


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    Shamis v. Rice-Stix Dry Goods Company.
    Opinion delivered October 23, 1922.
    1. Bankruptcy — exclusive jurisdiction. — As the jurisdiction of the Federal bankruptcy courts, when properly invoked in the administration of the aifairs of insolvent persons and corporations, is exclusive, the filing of an involuntary proceeding in bankruptcy annuls a general assignment for the benefit of creditors in a State court.
    2. Evidence — varying written contract by parol. — Under the rule that all prior negotiations leading up to a written contract are merged therein, and the writing cannot be varied by proof of a parol contemporaneous agreement, oral evidence that creditors agreed to discharge a debtor if he would execute a general assignment for the benefit of creditors was inadmissible.
    3. Bankruptcy — effect of failure to discharge debtor. — Where the petition of a bankrupt for a discharge was denied, his creditors may sue to recover a balance due them after having received their pro rata of the distribution of his assets.
    Appeal from Hot Spring Circuit Court; W. H. Evans, Judge;
    affirmed.
    STATEMENT OP PACTS.
    Rice-Stix Dry Goods Company, and other creditors of T. A. Shamis to the number of fourteen, brought separate suits in the circuit court against him to recover the amount alleged to be due each of them. The cases were consolidated for the purpose of trial.
    It appears from the record that T. A. Shamis was engaged in the mercantile business in Malvern, Ark.,' until some time in October, 1917. On the 26th day of October, 1917, T. A. Shamis made a general assignment in favor of his creditors. The general assignment was introduced in evidence, but we do not deem it necessary to copy it in our statement of facts. We need only say that, in general terms, it conveyed to certain designated trustees ’all the real and personal property of Shamis in trust for the benefit of his creditors, and the deed of assignment was duly signed and acknowledged before a notary public by Shamis and the assignees named in it. A few days after this, an involuntary petition in bankruptcy was filed against Sbamis in tbe Federal bankruptcy court. Sliamis was duly adjudged a bankrupt, and bis assets being insufficient to pay all tbe claims filed in tbe bankruptcy court against him, bis creditors were paid a pro rata per cent, of tbe amounts due them. One hundred and seventy-seven creditors filed claims in tbe Federal court in bankruptcy. Shamis filed bis application in said court for a discharge, and, upon bearing tbe same, it was denied. Other evidence will be stated or referred to in tbe opinion.
    Tbe jury returned a verdict in favor of tbe plaintiffs for the amount found to be due in each case, and from tbe judgment rendered tbe defendant has duly prosecuted an appeal to this court.

      D. D. Glover, for appellant.

      .Rogers, Barber S Henry, for appellees.
    A general assignment for tbe benefit of creditors will be avoided by bankruptcy proceedings where it is attached in time, and the Federal court will administer the assets. 3 R. C. L. 167. After an assignment and tbe assignor is later adjudged a bankrupt, any acts of tbe assignee touching tbe estate of the bankrupt or of tbe State court in tbe administration of same, are null and void. 92 Fed. Rep. 135. The jurisdiction of tbe bankrupt court is supreme. 92 Fed. Rep. 329; 88 Ark. 519.
   Hart, J.

(after stating tbe facts). Tbe operation of tbe bankruptcy laws of the United States cannot be defeated by proceedings under State statutes looking to the winding up of tbe bankrupt’s estate. Tbe bankruptcy law of tbe United States is paramount, and tbe jurisdiction of tbe Federal courts in bankruptcy, when properly invoked in tbe administration of tbe affairs of insolvent persons and corporations, is essentially exclusive. Hickman v. Parlin-Orendorff Co., 88 Ark. 519; Baxter County Bank v. Copeland, 114 Ark. 316; Morgan v. State, 154 Ark. 273.

Therefore, when involuntary proceedings in bankruptcy were filed in the Federal bankruptcy court against T. A. Shamis, his estate must be administered and the distribution of his assets made by that court, and the general assignment which he had previously made for the benefit of his creditors was necessarily rendered null and void.

But it is contended by counsel for Shamis that the court erred in not admitting oral evidence to the effect that the creditors of Shamis had agreed to give him a discharge in full if he would execute a general assignment of all his property in favor of his creditors.

Whatever negotiations Shamis may have had with his creditors were all merged in the general assignment above referred to, which he executed. This court has uniformly held that all prior negotiations leading up to a written contract are merged therein, and the writing cannot be varied by proof of a parol contemporaneous agreement. Goodwin v. Baker, 129 Ark. 513; Harrower v. Insurance Co., 144 Ark. 279; Zearing v. Crawford, McGregor & Camby Co., 102 Ark. 575, and Cherokee Construction Co. v. Prairie Creek Coal Mining Co., 102 Ark. 428.

Inasmuch as the parol testimony in question would have tended to contradict and vary the written assignment of Shamis in favor of his creditors, the circuit court properly refused to allow it to go to the jury.

It is next insisted that the evidence is not sufficient to establish the claims of the plaintiffs, as shown by the verdict of the jury. It appears from the record that all the creditors of Shamis, who are plaintiffs in the present suit, filed their claims in the Federal bankruptcy court and that that court ordered paid to them about forty per cent, of the amount of their claims. It was also shown that an additional per cent, of their claims was paid them, so that each creditor received 42.7 per cent, of the amount of his claim.

This testimony was not attempted to be disputed by Shamis, and it sufficiently establishes the amount which remained due to each of the plaintiffs after having been paid his pro rata share allowed in the bankruptcy court. The Federal court in bankruptcy denied the petition of Shamis for a release against his creditors, and for that reason the creditors could maintain a suit to recover the balance due them -after having received their pro rata part in the distribution of his assets in the Federal bankruptcy court.

It follows that the judgment must be affirmed.


author: Smith, J.

text:
    Thompson v. Collier-Reynolds Grocery Company.
    Opinion delivered October 23, 1922.
    1. Principal and agent — apparent authority — question for jury. — Evidence held to make out a case of apparent authority of an agent to represent his principal sufficient to go to the jury.
    2. Principal and agent — estoppel to deny authority. — Where plaintiff by his conduct induced defendant to believe that his agent had authority to have an automobile repaired, and, relying upon that belief, the defendant refrained from filing a lien on the car, plaintiff is estopped 'to deny the agent’s authority.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    reversed.

      E. K. Toney, for appellant.
    The court erred in directing a verdict. The evidence was sufficient to constitute Pritchard an agent of appellee with authority to have the work done and the account charged-to appellee. 147 Ark. 227.
    Appellees knew that their salesman was having the car repaired, had paid similar hills before, and by their conduct led appellant to believe that the account would be paid by them. 147 Ark. 414. By their conduct they are now estopped to deny liability. 131 Ark. 82; 148 Ark. 301.

      Rowell & Alexander, for appellee.
   Smith, J.

This appeal is from a judgment rendered upon a verdict returned in appellee’s favor tinder the direction of the court. In testing the correctness of this action we must therefore view the testimony and the inferences reasonably deducible therefrom in the light most favorable to appellant. As thus viewed, the facts may be stated as follows:

Appellee is a corporation engaged in the wholesale grocery business in the city of Pine Bluff, and one Pritchard was employed by it as a traveling salesman. In the discharge of his duties he used an automobile, which he took to appellant’s shop to be repaired, and this suit is for these repairs. Pritchard did not state to appellant that he had express authority to have the car repaired and the work charged to appellee, but he ordered the work done and charged to appellee. Appellant knew that Pritchard used the car in connection with his employment; and appellant supposed the car belonged to appellee. Appellant would not have credited Pritchard, but did not hesitate to extend credit to appellee, and had done so, as he supposed, on three or four previous occasions by repairing this identical car under the direction of Pritchard. In each instance the work was charged to appellee, and the bill therefor was rendered to appellee and promptly paid by it. Appellee paid these bills as if they were its own, and said nothing about the payment being made for the benefit of Pritchard. "When appellant presented the bill here sued for, which amounted to $112.69, to appellee, the only reason given for not paying it was that it was excessive. This bill was presented a second time, and still no claim was made that the bill was Pritchard’s and not appellee’s.

Payment being refused, suit was brought in the municipal court of Pine Bluff, where judgment was rendered in appellant’s favor by default. While the suit was pending in that court the attorney now representing appellee offered appellant $50 in settlement of the claim, and appellant supposed the offer was made for appellee. At the time the judgment was rendered in the municipal court a claim of a mechanic’s lien might still have been filed against the car, and would have been, had appellant been advised even then that appellee denied liability on the ground that Pritchard was the owner of the car, but appellant was not advised that that defense would be interposed until during the trial in the circuit court from which this appeal comes, at which time the right to claim a lien had expired, and the defense was then for the first time made that Pritchard was not appellee’s agent and had no authority to contract the debt sued for.

At the time the work sued for was done appellee had a mortgage on the car, and the \car was later turned over to it by Pritchard in satisfaction of the mortgage.

Upon this testimony appellant insists the jury might have found that Pritchard was in fact the agent of appellee, and that it was within the apparent scope of his authority to order the car repaired and the work charged to appellee; or, if this was not true, that appellee, by its conduct, had estopped itself to deny the agency.

We think a case was made for the jury. As was said in the case of Moore v. Ziba Bennitt & Co., 147 Ark. 227, the relation of principal and agent cannot be presumed, and cannot be established by the acts and declarations of the agent in assuming authority; yet the relation and the authority of the agent, after the relation is proved, can be shown by circumstances as well as by positive proof. Pritchard was admittedly an agent for some purposes; and while he may not have had express authority to order the car repaired, the jury might have found that appellee assented to Pritchard holding himself out as having the authority to order the repairs made on the faith of appellee’s credit.

If this finding had not been made, the jury might have found, from the testimony set-out above, that appellee had estopped itself to deny the agency. If appellee knew that appellant had done the work on the- assumption of appellee’s ownership of the ear and under the belief that Pritchard, as appellee’s agent, had ordered the work done, and had the authority to so order, and appellee’s conduct had induced this assumption and belief on appellant’s part; and if appellee knew that appellant did not claim a lien on the car because he thought appellee’s solvency made it unnecessary to do so and appellee made no denial of liability on the grounds on which appellant asserted liability against it until it became too late for appellant to file a claim for a lien against the car, then appellee would be estopped; to deny Pritchard’s agency. Sec. 6871, C. & M. Digest; Ferguson v. Guydon, 148 Ark. 295; Thompson v. Wilhite, 131 Ark. 82; Denton v. Berryville Auto Co., 147 Ark. 415; Forrest v. Benson, 150 Ark. 89.

For the error in not submitting the case to the jury, the judgment will 'be reversed and the cause remanded for a new trial.


text:
    Lancaster v. Arkansas Lime Company.
    Opinion delivered October 23, 1922.
    1. Trial — refusal to reopen case. — In an action by an employee for salary due him on a breach of the contract of employment, in which the court stated to the jury that the only question involved was the wrongful discharge, the court’s refusal to permit plaintiff, after testifying that he was wrongfully discharged, to be recalled to prove his damages, defendant having moved for verdict for want of proof of damages, was an abuse of discretion.
    2. Master and servant — wrongful discharge — presumption as to damages. — In an employee’s action for salary due on breach of-his contract of employment, proof of his wrongful discharge before the expiration of his term makes a prima faoie case entitling him to recover the stipulated salary, and the burden is on the employer to show, in reduction of damages, that similar employment might have been obtained by plaintiff.
    Appeal from Izard Circuit Court, J. B. Baker, Judge;
    reversed.

      Ben B. Williamson and Hugh Wiliams on, for appellant.
    The court erred in directing a verdict, in effect holding that the burden was on appellant to show that he could not procure other work during the contract period, whereas the burden was on appellee to make this showing that similar employment could have been obtained. 58 Ark. 617; 61 N. Y. 362; 63 Barb. 177; 67 Me. 64; 19 Ark. 671.
    The court erred in refusing to permit appellant to show that he had endeavored to obtain work. This, in view of the statement made by the court at the beginning of the trial that the only issue for trial was whether or not the discharge was wrongful.

      Elbert Godwin, for appellee.
   Smith, J.

Appellant, who was the plaintiff below, sued to recover balance of salary alleged to be due him upon a breach of his contract of employment.

After the selection of the jury the court made the following statement: “Gentlemen of the jury, this is an action for damages on an allegation of breach of contract for labor. The plaintiff alleges that the defendant employed him to operate a ferry, and contracted and agreed to pay him seventy dollars a'month from the first of August to the end of the year, and that on the 13th day of September, 1920, the defendant discharged him. These allegations the defendants admit. ' Defendants admit that they employed him to operate the ferry and that they agreed to pay him seventy dollars a month from the first of August until the expiration of the year, and admit that they discharged him on the 13th day of September, but they deny that the discharge was wrongful. Now, the only question to be determined by you is whether or not the discharge was wrongful.”

After this statement was made, the plaintiff offered testimony to the effect that he had been discharged without legal cause. After offering this testimony, plaintiff rested; whereupon counsel for the defendant moved the court to direct a verdict for defendant upon the ground that plaintiff had not proved his allegation of damages. Counsel for plaintiff then asked, permission to recall the plaintiff to prove this damage. Defendant’s counsel objected to this being done, and, without sustaining the motion, the court permitted the defendant to offer its testimony, at the conclusion of which counsel for plaintiff again asked permission to recall the plaintiff to prove by him that, after his discharge, and from the time of his discharge, he sought to obtain other employment and failed to do so up to December 1, 1920.

This motion was overruled; and this appeal is from the judgment pronounced upon a verdict for defendant returned under the direction of the court.

The judgment must be reversed for two reasons. First, it was an abuse of discretion for the court to refuse to permit plaintiff to prove his inability to secure employment after the breach of the contract; and this is especially true, inasmuch as the court had stated to the jury, without objection from either party, that the only question to be determined was whether the discharge was wrongful.

A second reason for the reversal of the judgment is that plaintiff had made a prima facie case when he proved that his discharge was wrongful. In the case of Van Winkle v. Satterfield, 58 Ark. 617, it was said: “The burden of proof is on the employer to show that the servant might have obtained similar employment; for the failure of the servant to obtain other employment does not affect the right of action, but only goes in reduction of damages, and, if nothing else is shown, ‘the servant is entitled to recover the contract price upon proving the employer’s violation of the contract, a.nd his own willingness to perform.’ The fact that the servant might have obtained new employment does not constitute a defense. It is one of the facts to be considered in estimating the servant’s loss. Howard v. Daly, 61 N. Y. 362; Gillis v. Space, 63 Barb. 177; Costigan v. Railroad Co., 2 Denio 659; Sutherland v. Wyer, 67 Me. 64; 2 Sutherland on Damages, sec. 693; Wood on Master and Servant, p. 245.” See, also, Sweet v. McEwen, 140 Ark. 162.

Appellee questions the sufficiency of the return of the sheriff upon the summons which issued out of this court. But there has been an alias summons and a correct and sufficient return thereon.

• Appellee also contends that the bill of exceptions was not filed within the time limited by the trial court, and insists therefore that the judgment should be affirmed, as no error appears on the face of the record. But the return of the clerk of the court below in response to the writ of certiorari shows that the bill of exceptions was in fact filed within the time limited.

For the errors indicated the judgment is reversed and the cause remanded for a new trial.


text:
    J. T. Fargason Company v. Bank of Lepanto.
    Opinion delivered October 23, 1922.
    1. Appeal and error — request for directed verdict — review.— Where, at the conclusion of the evidence, both parties request an instructed verdict, and ask no other instructions, the case is withdrawn from the jury, and on appeal the court’s finding of fact will be sustained if the testimony is legally sufficient.
    2. Sales — title.—Where a hank advanced money to a cotton buyer to buy cotton under an agreement that title be taken in the bank’s name, the contract became executed when the buyer purchased the cotton with the bank’s money and had it sent to a factor for the bank’s account, and title passed to the bank.
    S. Factors — evidence.—Evidence held to sustain a finding that cotton was delivered by a third person to a factor for the account of a bank which had advanced the money to purchase the cotton.
    Appeal from Crittenden Circuit Court, J. M. Futrell, Judge;
    affirmed.

      Jas. R. McDowell, for appellant.
    Tbe contract between Stuckey and the bank was purely executory, being only an agreement t.o deliver to the bank all cotton purchased by Stuckey, at a stipulated price. These conditions were not performed as to the cotton in question, and no title passed to the bank. 72 Ark. 141; 25 Ark. 545; 24 R. C. L. 313, 50 Ark. 291. Such contract, though good between the parties, is not-binding as to third parties. 47 Ark. 210. A contract for the sale of a large number of bales of cotton to be afterward acquired, does not pass title to any particular bales. 78 Ark. 511. Where a vendor is left in possession under an executory contract to sell, the property may be seized for his debts. 54 Ark. 308.

      John W. Soobey, for appellee.
    Both sides asked for a directed verdict, which has the effect of submitting the case to the court for determination, and there being evidence to support the court’s finding, the same should not be disturbed on appeal. 138 Ark. 172. The finding that the bill of sale passed title to the bank is conclusive. 148 Ark. 576.
    The title to personal property may pass and the sale be complete where it is the intention of the parties to buy and sell, even though there remains something to be done, like fixing t'he price, etc. 102 Ark. 344; 104 Ark. 250; 148 Ark. 576.
   Smith, J.

At the conclusion of all the testimony on the trial of this cause in the court below each party asked an instructed verdict, and neither asked any other instruction. Under our practice this is, in effect, a withdrawal of the case from the jury and the submission of it to the court, in which event it becomes our duty, on appeal, to view the case as if a jury had passed upon it and to sustain the court’s finding if the testimony tending to support'the finding is legally sufficient for that purpose. Webber v. Rogers, 128 Ark. 25; Watkins v. Louisiana State Life Ins. Co., 151 Ark. 596.

The facts, therefore, may be stated as follows: Sam Stuckey was the managing partner of the Sam Stuckey Company, which copartnership was engaged in the general furnishing business at Lepanto, Arkansas. This firm bought cotton prior to 1920 which was shipped to J. T. Fargason Company at Memphis, Tennessee. That company made advances on consignments of cotton which it held both as a factor and as a creditor to be sold by it for the account of Stuckey Company. At the beginning of the cotton season in the fall of 1920 Fargason Company held for the account of Stuckey Company about 150 bales, on which a balance of more than $20,000 was due. This cotton was finally sold for the account of Stuckey Company, and through the depreciation in price of cotton a large balance was left owing the Fargason Company on account of advances.

The Stuckey Company planned to buy cotton in the fall of 1920, and arranged for advances to be made by the Bank of Lepanto for that purpose. The following agreement was executed between Stuckey Company and the bank:

“bill of sale.

“This memorandum witnesseth that, for the hereinafter mentioned consideration, Sam Stuckey Company, of the county of Poinsett, State of Arkansas, hereinafter called ‘seller,’ has this day sold to Bank of Lepanto, of the county of Poinsett, State of Arkansas, hereinafter called the ‘buyer,’ all cotton of every grade and description which they may buy between this date and December 1, 1920, from any persons or firms whomsoever.

“Seller agrees to deliver all such cotton within the dates aforesaid to buyer, at the warehouse in the town of Lepanto, county of Poinsett and State of Arkansas, free of all charges; and buyer, in consideration thereof, hereby pays seller the sum of one dollar, receipt whereof is hereby acknowledged by seller, and further agrees to pay seller the full purchase price of the cotton bought as aforesaid, on such dates as such cotton is bought.

“The Bank of Lepanto retains absolute title in the cotton aforesaid until it relinquishes its title in legal form. And at any time said Bank of Lepanto so directs, the seller shall, as agent of said Bank of Lepanto, ship said cotton to Memphis, Tennessee, to be placed with cotton factors to the credit of said Bank of Lepanto.

“In witness whereof, we have hereunto set our hands this the 20th day of September, 1920.

“Sam Stuckey Company,

“Bank of Lepanto,

“W. R. Payne, Y. President.”

Stuckey bought cotton in the Lepanto market and paid for it with drafts drawn on the bank, and prior to the transaction out of which this litigation arose sold all the cotton so bought to O’Brien, the local agent of Farnsworth-Evans Company, cotton factors, doing business in Memphis, Tennessee.

The plan of operation was for Stuckey Company to repay the bank after selling the cotton. Any profit earned would have belonged to the Stuckey Company and any loss would have fallen on them.

Pursuant to this arrangement, Stuckey bought 26 bales of cotton, which he contracted to sell to O’Brien, for the Farnsworth-Evans Company. This sale was made on Friday, and the price was to be determined by the opening quotation on the Memphis market the following day. This sale, like all others made by Stuckey to Farnsworth-Evans Company, was made after consultation with Payne, the cashier of the bank, and with the approval of that officer, although O’Brien knew nothing of the bank’s interest in the cotton. The market opened on Saturday one hundred points off, and Stuckey asked O’Brien to release him from' the' trade. This O’Brien agreed to do after consultation with the Memphis office of bis firm, although the cotton had been shipped to his firm at Memphis. Upon the rescission of this sale, Stuckey directed O’Brien to notify FarnsworthEvans Company to turn the cotton over to Fargason Company. The cotton was shipped out of Lepanto on October 16, and on Monday thereafter Stuckey wrote to Fargason Company to place the cotton to the credit of the Bank of Lepanto, and gave Payne a copy of the letter.

The cotton was actually delivered into the possession of Fargason Company, on October 26, and the managing officer of that company testified that the delivery was accompanied by a note from Farnsworth-Evans Company advising the cotton should be placed to the credit of the account of Sam Stuckey Company, and the cotton was immediately so credited. •

On behalf of Fargason Company a letter was offered in evidence to that company from Sam Stuckey Company, dated 11-11-20, directing the 26 bales of cotton to be placed to the credit of the Bank of Lepanto, and on behalf of the Fargason Company it was testified that this was the only letter received from Stuckey Company on the subject, and it was not received until after the cotton had been credited to Stuckey Company’s account. But, as has been said, Stuckey testified that he wrote a letter to that effect on the Monday following October 16th, and we must assume the court' found there was such a letter, and in the ordinary course of the mails it would have been delivered to Fargason Company in Memphis before the cotton was delivered to it on October 26.

The original of a letter from the bank to Fargason Company, advising the cotton should be sold for the account of the bank, dated November 2, 1920, was also offered in evidence, and on behalf of Fargason Company it was testified that this was the first letter received from the bank; but Payne testified that he had written a previous letter, which in the usual course would have reached Fargason Company before October 26, and the second letter was written because the receipt of the first one was not acknowledged.

Fargason Company sold the cotton November 11, 1920, and credited the proceeds, less its charges as cotton factors, to the general account of Stuckey Company.

It is shown by the testimony, both of Stuckey and Payne, that the ¡bank advanced the money which paid for the 26.bales of cotton; and it is not claimed by Fargason Company that it made any advance on the 26 bales of cotton, or 'any of them.

The bank sued Fargason Company for the net proceeds of the. cotton, and the 'court below directed a verdict in the bank’s favor.

There is not involved in this litigation any question as to Fargason Company’s compensation as factors, for, as has been said, the suit was brought for the net proceeds.

For the reversal of the judgment it is insisted, first, that the writing set out above is a mere executory contract, which never operated to pass title as against Fargason Company, for the reason that there was never any delivery thereunder; second, that the cotton was actually delivered to Fargason Company as a creditor of Stuckey Company, and an appropriation thereof for that purpose made by 'a credit on the books of the Fargason Company, and the subsequent direction of the Sam Stuckey Company to sell the cotton for the account of the bank could not operate as a rescission of the prior payment.

There was a delivery, or rather a redelivery, of this cotton to the Fargason Company; and if this delivery was for the account of the bank, then the written agreement set out above became an executed one. The controlling question, therefore, is, for whose account was the delivery to Fargason Company made? Was Fargason Company’s possession that of a creditor or that of a factor?

We think the testimony set out is legally sufficient to support the finding that the cotton was delivered to Fargason Company as a factor, and not as a creditor having the right to apply the cotton to the general credit of Stuckey Company.

In section 4 of the article on Factors in 11 R. C. L., p. 755, it is said: ‘ ‘ The distinction between a contract of sale and a consignment of goods to a factor is that in the case of a sale the title passes to the buyer, while in the case of a consignment to a factor the possession passes . to the factor but the title remains in the consignor. Where goods are delivered by one party to another, to sell for the party delivering them, it creates the relation of agency, and the title remains in the principal, and the factor or agent is liable to pay, not a price, but to account for the proceeds of the goods when sold.” See also Mechem on Sales, sec. 43; Mechem on Agency (2nd. ed.), sec. 2499.

If the delivery to Fargason Company was as a factor, and not as a creditor, it was the duty of that company to apply the proceeds of the sale thereof, as directed, to the account of the bank, The undisputed evidence shows direction was given to Fargason Company before the cotton was sold to apply it to the 'account of the bank, and the testimony of Stuckey and of- Payne is that this direction was" given before the cotton was received by Fargason Company.

In other words, the testimony is legally sufficient to support these findings. The bank advanced the money to buy the cotton; the cotton was bought pursuant to the executory agreement, which became executed upon the delivery of the cotton to Fargason Company in Memphis. The delivery was to Fargason Company as a factor, and not as a creditor, and was for the account of the bank, and not that of Stuckey Company.

The judgment must therefore bé affirmed.


author: Hart, J.,

text:
    Dallas v. Austin.
    Opinion delivered October 23, 1922.
    Brokers — right to commission. — A broker is not entitled to a commission where he procures a purchaser under a verbal and therefore unenforceable contract who afterwards declines to carry out same, the broker in such case not having procured a purchaser ready, able and willing to perform.
    Appeal from Chicot Circuit Court; Turner Butler, Judge;
    affirmed.

      STATEMENT OP PACTS.
    This appeal involves the right of D. E. Dallas to establish a claim against the estate of T. B. Feazor, deceased, for compensation alleged to be due under a ver bal contract with T. B. Feazor to sell for him certain real estate in the city of Hot Springs,' Arkansas.
    The material facts are undisputed and are as follows: In June, 1919, D. E. Dallas was a real estate agent in Hot Springs, Arkansas, and T. B. Feazor owned certain property in that city known as the Keeley Institute. Feazor listed his property for sale with Dallas, and it was the understanding between them that Feazor should receive $11,000 net for the property, and that Dallas should have as commissions all that he sold the property for over that sum. Dallas made a verbal agreement with William Tiefel to sell the property to him for $12,000 and to furnish an abstract of title showing a good and merchantable title in T. B. Feazor. About three o’clock on the afternoon of June 4, 1919, Dallas took Tiefel to see Feazor, and an oral agreement was reached between Feazor and Tiefel for the latter to purchase the property for $12,000, and Feazor to furnish an abstract of title showing a good and merchantable title in the property in himself. Feazor was apparently in good health at this time, but suddenly died between six and eight o’clock on the evening of the same day. Feazor died testate, and Lowery Austin duly qualified as the executor of 'his will. Tiefel was advised by his attorney that a good title to the property could not be conveyed to him until it was shown that all State and Federal inheritance taxes which might be due by Feazor’s estate were paid, and until the time for filing claims against said estate had expired. The attorney also advised Tiefel that the title to said property was not a good and marketable title.
    The executor of Feazor’s estate and the devisees under his will offered to carry out his contract with Tiefel and to convey said property to him. They showed him that the estate was solvent, and that there was plenty of other property to pay any claims that might he filed and proved against the estate. Nevertheless Tiefel declined to carry out his contract for the purchase of the property, and subsequently the. property was sold to another person for $10,000. Dallas exhibited his claim for compensation under the contract .with Peazor for the sale of said property to the executor, who disallowed it. The judgment of the probate court was also against him, and Dallas appealed to the circuit' court.
    The .circuit court was of the opinion, under the facts recited above, that the estate of T. B. Peazor, deceased, was not indebted to D. E. Dallas on said claim, and judgment was rendered accordingly. The case is here on appeal.

      L. E. Sawyer and Roy M. Sayre, for appellant.
    ' Where a broker furnishes a purchaser, and the purchaser is in no way at fault, and the transaction fails, the broker is entitled to his commission. 81 Ark. 96. Upon the failure of the party offering'real estate for sale to furnish a good and marketable title, a broker is entitled to his commission where he has furnished a purchaser, ready, willing1’ and able to perform the contract. 112 Ark. 570. In this case a good title could not be furnished because of certain defects of which the broker was not aware.

      Williamson <& Williamson, for appellee.
    Conceding that appellant had a contract for the sale of the property, he has not complied with its terms and has not earned a commission. Before he was entitled to a commission, he must secure a binding contract of sale, and must effect the sale, unless prevented by some act of the seller. 149 Ark. 118; 78 N. E. 106; 81 Ark. 96; 9 C. J. 609; 89 Ark. 289; 87 Ark. 506; 131 Ark. 576; 132 Ark. 378.
    The death of the principal before consummation of the sale terminated the authority of the broker. Yol 2, Ann. Cas. 888; 71 Pac. 965; 9 C. J. 522.
   Hart, J.,

(after stating the facts). In Wales-Riggs Plantations v. Pumphrey, 141 Ark. 565, and in numerous other decisions, this court has held that when an agent procures a person who is ready, able, and willing to purchase the property upon the terms under which the agent is authorized to negotiate the sale, and the owner refuses to convey, the agent is entitled to his commission. But the facts of this case do not bring it within the rule announced in the cases referred to.

In the instant case, after Feazor had died, the executor and devisees under his will offered to carry out the contract by conveying the property to Tiefel; but Tiefel, upon the advice of counsel, declined to complete his contract of purchase. So there was no default or failure upon the part of the owner to carry out the contract, and it cannot be said that the purchaser was prevented by any, act of the owner from acquiring the property. The purchaser himself declined to complete the contract upon the advice of his attorney. The contract between Feazor and Tiefel was a verbal one, and was not enforceable under the fourth section of our statute of frauds. Crawford & Moses’ Digest, § 4862.

The failure of Tiefel to carry out his verbal agreement for the purchase of the land prevented the contract from being completed. Hence Dallas does not make out a case for the recovery of commissions against the estate of T. B. Feazor, deceased, by showing that he secured a contract with a person ready, willing and able to perform the contract on his part.

The case was tried before the circuit court sitting as a jury, and the circuit court properly found the facts and declared the law to be in favor of appellee.

It follows that the judgment must be affirmed.


author: Humphreys, J.

text:
    Marsh v. Erwin.
    Opinion delivered October 23, 1922.
    1. Evidence — best and secondary evidence — land records.— Though a swamp land certificate is the hest evidence of land sold, the records of the land office are also admissible under Acts 1921, No. 238, to prove the sale, without' showing the loss of the certificate.
    2. Evidence — land records. — The notation of acreage in the column headed “Remarks” in the State’s record of “swamp land entries” opposite entries showing that F. and N. purchased certain swamp lands in dispute, was admissible both as part of the record showing disposition of the lands and because it might be inferred from such entry that the lands in dispute were embraced‘within such purchase as part of such acreage.
    3. Action — equitable defenses at law — Under Crawford & Moses’ Dig., § 1194, equitable defenses may. be interposed and tried in actions at law if no motion is made to transfer the cause to chancery.
    4. Public lands — grant of swamp land. — The State’s swamp land entry book contains notation that certain land was sold by the swamp land commissioners; the land was forfeited for taxes and sold to the State in 1868; it was again sold to the State in the overdue tax act of 1881. Plaintiff purchased the land as swamp land in 1919. Held that the jury were justified in presuming a grant to some one antedating plaintiff’s patent.
    5. Public lands — donation of forfeited lands. — Lands acquired by the State in overdue tax proceedings are subject to donation as forfeited lands. • ■
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Patterson & Rector and George Vaughan, for appellant.
    1. The transcript of the record in the office of the State Land Commissioner was.improperly admitted, because no foundation was laid for the introduction of secondary evidence. 76 Ark. 400, “403; Id. 460, 464; 75 Id. 415. It was improperly admitted also, because the transcript-shows on its face that' the evidence therein was irrelevant and immaterial.

      2. The introduction of the patent from the State to the plaintiff established a prima facie case for the plaintiff. 33 Ark. 833; 39 Id. 120; 55 Id. 286; 27 Id. 200.
    Being ,a common-law action in ejectment, and the issuance and delivery of patents to plaintiff being proved, no defense can successfully be maintained at law. If, as a matter of fact, the title had passed from the State prior to the execution of the patent, that fact should have been pleaded by the defendant, accompanied by a motion to transfer to equity, where such defense could have been heard. It cannot be determined at law. 76 Ark. 525. There is no evidence in the record even tending to rebut the presumption created by the State’s patent to the. plaintiff, nothing from which the jury could legally infer that the State had parted with its title .at a time prior to the date of the patent. Such being’ the ease, the donation deeds are void. 95 Ark. 65; 66 Id. 48. The donation deeds were quitclaim deeds merely, and conveyed only such interest as the 'State might have acquired by reason of nonpayment of taxes and subsequent forfeitures. Kirby’s Digest, § 4914. The unauthorized act of the State Land Commissioner in issuing these donation deeds cannot operate as an estoppel against the State. 57 Ark. 474, 476; 39 Ark. 580; 42 Ark. 118; 40 Ark. 251.
    Defendant claims under donation deeds alone, and under no other or further grant. The donation deeds being void, the law will not presume another valid deed. 175 U. S. 248, 44 L. Ed. 150; 175 U. S. 552, 44 L. Ed. 269.
    3. The donation deeds conveyed no title because the land sought to be conveyed was not subject to donation. The State acquired no title by reason of the overdue tax proceedings. Only lands forfeited to the State for nonpayment of taxes are subject to donation. 95 Ark. 65.

      W. A. Leach, for appellee.
    1. An equitable defense may be made to an action in ejectment under our code. Crawford & Moses’ Dig., § 1194; 85 Ark. 25; 21 Id. 484; 54 Id. 30; 49 Id. 75; 46 Id. 272; 27 Id. 632; 26 Id. 54.

      2. As to whether or not there had been a sale by the State prior t'o the patent to the appellant was a question of fact for the jury. The verdict in favor of the appellee necessarily included .a finding that there had been a prior sale, and the evidence was sufficient to warrant this finding.
    3. By section 7 of the overdue tax act of March 12, 1881, as amended by the act of March 22, 1881, the State was authorized to make herself a party to any suit, and was given the same right in regard to the assertion of her title as a private person. Not having' set up any title to the lands in controversy in the overdue tax proceedings, the .State is bound by the decree adjudging the taxes to be due -and declaring a lien on the lands to secure the payment thereof, ánd this decree necessarily included a finding that the State at that time was not the owner of the lands. 49 Ark. 337; 60 Id. 188;.55 Id. 37. The case of Brvrmemcmv. Scholem,65 Ark. 65, relied on by appellant, is not in point. The language of that opinion to the effect that only lands forfeited to the State for nonpayment of taxes are subject to donation, etc., was used with reference to lands that had not been forfeited for taxes in any manner.
    4. Certified copies of records from the State Land Office were admissible in evidence without laying a foundation therefor with proof of the loss of the primary evidence. Act 238, Acts 1921, p. 308; 26 Ark. 54.
   Humphreys, J.

Appellant instituted suit in ejectment again'st appellee in the circuit court of Prairie County, Northern District, to recover possession of the following described lands in said county, to-wit: Lot 6 of N. W. quarter section 3; lots 5 and 6 of N. E. quarter and lot 5 of N. W. quarter section 4, all in township 4 north, range 4 west, containing 160 acres, more or less. Appellant deraigned his title from the State, setting up a swamp land deed or patent from 'the Commissioner of State Lands, dated February 24, 1919.

Appellee filed an .answer interposing an equitable defense. Tbe answer alleged, in substance,; that the State acquired the lands from the United States under swamp land -act on September 28, 1850, and prior to 1868 certified them out for taxation; that said lands were forfeited to the State for the nonpayment of the taxes for 1868; that subsequently they were certified out under the act of March 12, 1881, and embraced in the “overdue tax suit” in Prairie County, and under the decree in the suit were sold back to the State of Arkansas; that in the years 1895 and 1899 donation deeds were issued for State lands by the State, and that appellee acquired title through mesne conveyances from the donees; that the appellee, and those through whom he claims title, had been in the continuous possession of said lands, made valuable improvements thereon, and paid the taxes since the date of the donation • deeds.

The cause was sent to the jury upon the pleadings, evidence, and instructions of the court, which resulted in a verdict and judgment for appellee, from which is this appeal. The facts reflected by the record are in substance as follows: 'State acquired title to the lands in litigation by virtue of the swamp land act of September 28, 1850. A patent for them was issued by the State to appellant on the 24th d'ay of September, 1919. A tract book, which was an exact copy of the official survey of sections 3 and 4, embracing the lands in question, is kept in the State land office, and was introduced in evidence. Each of the tracts in question, as shown by the tract book, was marked with the letters “S. C.” These letters indicated that said lands had been sold by the Swamp Land Commissioner. The official survey of sections 3 and 4 was also introduced, showing that the north half of the sections are fractional and contain 1,313.90 acres.' Over 'the objection and exception of appellant a certified copy of page 215 of the book of “swamp land entries,” kept in the land office, was introduced in evidence. This book is supposed to show the disposition made of swamp lands belonging to tbe State, and bears date August 2, 1852. The name of Ferguson and Neill, to whom appellee claimed these lands were sold, appeared on this page as the purchasers of lands set opposite their names. “It appears therefrom that on August' 2, 1852, Joseph R. Ferguson and James Q. Neill purchased certain lands in township four north, range four west, as follows:

W. half of N. W. quarter of sec. 2.................................... 80 acres

N. half of see. 3...............................................!...................................320 acres

N. E. quarter of sec. 4.................-..............................................160 acres

E. half of N. W. quarter of sec. -4.................................. 80 acres

Making a total of................................:.......'......................................640 acres

In the column headed “Remarks”, immediately opposite the four entries last mentioned above, the following notation of acreage appears:

“160.97

656.49

333.52

162.92

“Total ......................................................................................1,313.90”.

The other entries on the page prove nothing concerning the lands in dispute, so it is needless to set out all the entries on the page. The lands were forfeited to the State for the taxes of 1868, and they were again sold to the State under the decree in the “overdue tax suit” in Prairie County. A donation deed for a part of the lands was issued in 1895 by the State to Jesse Warren, and appellee acquired his title through mesne conveyances. A donation deed for the other part of them was issued in 1899 to Guy W. Knauff, from, whom appellee acquired them directly. Sixty acres of land purchased by Knauff was cleared, fenced, and two houses built during the occupancy of the donee and his' grantee. The lands purchased by Jesse Warren had also been improved by those in the chain of his title. Forty acres had been put in cultivation, and houses, stables, etc., built upon it.

At the conclusion of the evidence appellant requested the court to direct the jury to return a verdict in his favor, which was refused, over his objection and exception.

Appellant’s first insistence for reversal is that the certificate of purchase, issued to Ferguson and Neill for swamp lands, was the original and best evidence of the lands sold to them, and that the court erred in admitting the records of the land office without first showing the loss of the certificate. We think the record was admissible under the rule announced in Taylor v. Trulock, 26 Ark. 54, and certainly was admissible under the rule prescribed by act 238 of the Acts of the General Assembly of 1921. It was therefore unnecessary to prove the loss of the certificate before introducing page 215 of the records in the land office.

Appellant’s next insistence for reversal is that the court erred in admitting page 215 of the record, because it did not describe the lands in controversy, and for that reason was irrelevant and immaterial. We think the notation of acreage in the column headed “Remarks” opposite the four entries, showing that Ferguson and Neill purchased certain swamp lands, is a circumstance from which it might be inferred that the lands in dispute were embraced within their original purchase. The acreage noted under that heading amounts to 1,313.90 acres, and was the amount in the north fractional half of the two sections in which the lands in dispute are situated. We think it admissible on the further ground that appellee was entitled to produce the whole record, as well as the tract or index book, relating to the disposition of the swamp lands in the sections embracing the lands in controversy.

Appellant’s next insistence for reversal is that, even if the State had parted with the title to the lands before the execution of the patent to appellant, this equitable defense could not be heard in a court of law. Under § 1194 of Crawford & Moses’ Digest equitable defenses may be interposed and tried in actions at law, if no motion is made to transfer the canse to the chancery court. Taylor v. Trulock, 26 Ark. 54; Nichols v. Shearon, 49 Ark. 75; Gates v. Gray, 85 Ark. 25.

Appellant’s next insistence for reversal is that there is no testimony .from which a reasonable inference might be drawn that the State had parted with its original title prior to the date of the patent to appellant. The letters “S. C.” appear upon the lands in controversy in the tract or index book, which letters, according to the testimony, indicate that the Swamp Land Commissioners disposed of the lands thus marked. It also appears that these lands were forfeited to the State for the taxes of 1868. This is a circumstance tending to show that at some time prior thereto the lands had been sold and certified out for taxation. Again,' the testimony shows that the lands were included in an “overdue tax suit,” filed in Prairie County, and that under the decree for unpaid taxes the State again. purchased them. This testimony also tends to show that at some time prior to the date of appellant’s patent the lands had been sold and certified out by the State for taxation. Even though the long occupancy and valuable improvements, made by appellee and the grantor and grantees in the chain of his title, may be attributed to the donation deeds, the facts and circumstances above detailed cannot. They can only be attributed to an ancient grant of the State’s original title and, we think, are sufficient to base a reasonable inference that there was a sale of said lands by the State to some cne antedating appellant’s patent. The jury indulged the presumption of a prior grant, and there was sufficient evidence to warrant it.

Appellant’s next and last contention for reversal is that lands sold under the “overdue tax suit” are not subject to donation as forfeited lands. We think lands acquired by the State in overdue tax proceedings are subject to donation. But, aside from this view, in tbe instant case the lands in controversy were clearly subject to donation under the forfeiture to the State for the taxes of 1868.

No error appearing, the judgment is affirmed.