author: Hart, C. J.,

text:
    Superior Lumber Company v. National Bank of Commerce.
    Opinion delivered February 20, 1928.
    1. Mortgages — priority op materialman’s lien. — A mortgage to secure future advances, where it is optional with a mortgagee whether to make future advances or not, is inferior to a material-man’s lien as to advances made after the mortgagee had notice that the materialman’s lien had attached to the property.
    2. Mechanics’ lien — statutory provisions. — A lien for materials is purely a statutory lien.
    3. Mechanics’ lien — when materialman’s lien assignable.— While a materialman’s lien is assignable, the right to perfect such a lien is not assignable, and the lien must be perfected before it can be transferred or assigned.
    4. Mechanics’ lien — right to assignee. — A bank which advanced money to pay off certain claims of materialmen held not to have acquired a superior lien against the lien of the mortgage, where it did; not prove that the claim had been established as a lien in the manner required by statute.
    .Appeal from Union Chancery Court, Second Division,- George M. LeCroy, Chancellor;
    reversed.
    STATEMENT OP PACTS.
    ■Superior Lumber Company brought this suit in equity against W. B. McCall for the purpose of enforcing a lien for materials furnished and used in improving his home in El Dorado, Arkansas. Other lien claimants for materials and National Bank of Commerce, which had a mortgage on the premises, were made parties defendant. National iBank of Commerce defended the suit on the ground that its mortgage was superior to the lien of the plaintiff for materials. On the trial of the case it was ’shown that, between the 26th day of January, 1927, and the 6th day of April, 1927, Superior Lumber Company sold to the defendant, W. B. Mo'Call, building materials of the value of $3,018.39, which were used in improving his home in El Dorado, Arkansas. It was also shown that on the first day of July, 1926, W. B. McCall executed a mortgage to the National Bank of Commerce to secure the sum of $2,000, which he owed said bank. It is conceded that the mortgage to secure this sum is a prior lien on the land involved in this suit to those of the materialmen. The mortgage also contains a provision that it is given to secure any other indebtedness which may exist on the part of said W. B. McCall to the National Bank of Commence up to the foreclosure of the mortgage, should it be foreclosed within five years from date. The date of the mortgage is July 1, 1926. Subsequent to the furnishing of the materials by the Superior Lumber Company, as'above stated, National Bank of Commerce advanced to W. B. McCall $900, evidenced by note for said sum, dated April 9,1927, and due May 3, 1927. Four hundred and fifty dollars of this amount was used by McCall in, paying for materials which were used in improving.his house. The National Bank of Commerce asked that its mortgage be foreclosed and that it should be declared a lien superior to that of the plaintiff for material furnished.
    The court found the issues in favor of said bank, and it was declared that the bank had a superior lien on the house and lot of W. B. McCall to that of the material-man’s lien of the Superior Lumber Company, and a decree of foreclosure was also entered of record in favor of said bank. To reverse that decree Superior Lumber Company has duly prosecuted an appeal to this court.

      T. O. Abbott and Graham Moore, for appellant.

      Marsh, McKay & Marlin, for appellee.
   Hart, C. J.,

(after stating the facts). The chancellor' was wrong in holding that the bank had a superior lien to that of plaintiff as to the $900, evidenced by a note of April 9, 1927. This money was advanced by the bank after the lien of the plaintiff had accrued for the materials furnished by it and used in the improvement of the premises on which the bank had a mortgage. The mortgage did not contain a clause making it obligatory upon the bank to make this advance of $900, and it had notice of the lien of plaintiff at the time the $900 was furnished. It was entirely optional with the bank whether or not it should make it. Mortgages to secure future advances are valid; but, where it is entirely optional with the mortgagee whether to make future advances or not, advances made after notice of a subsequent incumbrance, such as a lien for materials furnished, are inferior to the materialman’s lien. In other words, the general rule is that, if the amount for which the mortgage shall stand is wholly optional with the mortgagee, he cannot, after notice that a subsequent lien has attached, deplete the value of the equity to the disparagement of .its lienors by advances which, if refused, would not.have been in force. Heintze v. Bentley, 34 N. J. Eq. 562; Gray v. McClellan, 214 Mass. 92, 100 N. E. 1093; Finlayson v. Crooks, 47 Minn. 74, 49 N. W. 398, 645; Germania Building & Loan Assn. v. B. Fraenkell Realty Co., 82 N. J. Eq. 49, 88 Atl. 305; W. P. Fuller & Co. v. McClue, 48 Cal. App. 185, 191 Pac. 1027, and cases cited; Savings & Loan Society v. Burnett, 106 Cal. 514, 39 Pac. 922; 27 Cyc. 239, 240; 40 C. J., p. 302, § 393 (bb); 41. C. J., p. 527, par. 468 (4); and Davis v. Carlisle (Circuit Court of Appeals, Eighth Circuit), 142 Fed. 106, and cases cited. The record shows that the bank had notice of the materialman’s 'lien of plaintiff at the time it furnished the $900 evidenced by the note of April 9, 1927.

It is insisted, however, that the bank should have a superior lien for $450, because that amount was furnished .by it to McCall for the purpose of paying off materialmen’s liens against the mortgaged property, land was used by him for that purpose. The lien for materials is purely a creature of the statute, and, while it is assignable under our statute, the right to prosecute a mechanic’s lien is not assignable. Such liens must be perfected before they can be transferred or assigned. Before the bank could claim any right to the lien of the materialmen by advancing money to. pay off their claims, it would have to prove that these liens had been established ’in the manner required by statute. Young Men’s Building Assn. v. Ware, 158 Ark. 137, 249 S. W. 545.

The result of our views is that the decree of the chancery court was wrong, and will be reversed, with directions to enter a decree in favor of the Superior Lumber Company, holding that it’ has a paramount lien on the house and lot in question to that of the mortgage lien of the bank for the $900 note of April 9, 1927, 'and for further proceeding’s in accordance with the principles of equity and not inconsistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Hunt v. Boyce.
    Opinion delivered February 20, 1928.
    1. Ejectment — paper title. — In ejectment where plaintiff relied on a chain of title depending on title of a wife of a husband who had agreed to deed a lot to her, but had never performed his promise, plaintiff’s paper title to such lot failed.
    2. Specific performance — voluntary agreement. — Equity never enforces a voluntary agreement to convey land where no possession has been taken of the land, nor any valuable improvements made on it.
    3. Specific performance — when voluntary agreement enforced. —In a suit for specific performance of the voluntary agreement to convey land, where the donee took possession and made valuable and substantial betterments on the land, relying on promise to convey, the possession and betterments constitute such part performance as takes the case out of the statute of frauds.
    4. Mortgages — foreclosure of deed of trust. — A sale at foreclosure of a deed of trust without service of notice on the grantor in such deed was void under Crawford & Moses’ Dig., § 6807, and rendered the paper title of one claiming thereunder defective.
    5. Adverse possession — seven years’ payment of taxes. — Evidence held not to sustain a finding of title in plaintiffs by reason of seven .years’ payment of taxes on unimproved lands.
    6. Adverse possession — tax deed. — A tax deed regular in form - gives color of title to a purchaser and the grantees claiming thereunder, and holding possession thereunder for two years prior to the bringing of ejectment vests title in them, regardless of defects in their chain of title prior to the tax sale.
    7. Trial — transfer of cause. — Where defendant in ejectment was entitled to have a deed to' her reformed to describe the land correctly, transfer of the case to equity was proper, especially in view of a lack of dispute as to the facts.

      8. Appeal and error — harmless error. — A decree in equity will not be reversed because improperly transferred from the law court where, under the law and facts, the judgment rendered at law must be the same.
    Appeal from Jackson Chancery Court; A. 8. Irby, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    This was an action in ejectment brought by James H. Hunt against Fannie Boyce and Williams Biggers, in the circuit court, to recover lots Nos. 1 and 2, block 1, in Knight’s Addition to the town of Tuckerman, Arkansas. The plaintiff filed his muniments of title with his complaint. The defendants filed exceptions to some of the muniments of title of the plaintiff, and claimed title in themselves by a tax deed and adverse possession thereunder for two years.
    The record shows that Charles Parrott had title to lot 1 in said block 1, and that .his wife, Miartha Parrott, had title to lot 2 in said block 1. Charles Parrott promised to deed said lot 2 to his wife, but died without having done so. Subsequent to his death, on the 2d day of March, 1915, Martha Parrott executed a deed of trust to said lots to J. R. Loftin, Jr., las trustee, to secure an indebtedness to A. S. Lawrence. Having failed to pay the indebtedness, J. R. Loftin, Jr., foreclosed the deed of trust under the power of sale contained in it, and A. S. Lawrence became the purchaser at the sale. On the 4th day of January, 1917, J. R. Loftin, Jr., executed a deed to A. S. Lawrence to said land. The deed recites that notice of the time, place and terms of sale was given for twenty days before the date of sale by posting written notices thereof in five public places in Jackson County, and one notice upon the courthouse, and one upon the land. A. S. Lawrence bid $60 for-said lots. The trustee’s deed does not show that notice of the sale was served on Martha Parrott, as required by § 6807 of Crawford & Moses’ Digest. Martha Parrott, on cross-examination, testified that no notice of sale was ever served on her. Said lots were sold on the 14th day of June, 1920, for nonpayment of taxes for the year 1919, and William M. Bigg-er s' became the purchaser ¡at the tax sale. The lots, not having been redeemed, the clerk of Jackson County executed a tax deed to said lots to said W. M. Biggers on the 6th day of July, 1922. Subsequently W. M. Biggers sold said lot 2 to Fannie Boyce, and she entered into possession of it and erected a house on it in 1923. Both lots were then inclosed with a fence, and have been in the possession of William Biggers and Fannie Boyce since that time. Prior to that time the lots were vacant, and were not inclosed with a fence. The deed from W. M. Biggers to Fannie Boyce did not properly describe said lot 2, but the evidence of. both of these parties shows that that was the lot intended to be embraced in the deed and that Biggers at once put Fannie Boyce in possession of said lot 2, and that she has been in possession of it since that time. The remaining facts will be stated in the opinion.
    The case was transferred and tried in the chancery court, over the objections of the plaintiff. The ground for the motion to transfer to equity was that Fannie Boyce was entitled to have the deed from William Biggers to her reformed so as to correctly describe the lot intended to be conveyed to her.
    The chancellor found all the issues in favor of the defendants, and it was decreed that the plaintiff’s complaint be dismissed for want of equity. To reverse that decree the plaintiff has duly prosecuted an appeal to this court.

      E. F. Duncan and J. Paul Ward, for appellant.

      John W. Stayton, for appellee.
   Hart, C. J.,

(after stating the facts). The paper title of the plaintiff failed as to lot 2 in block 1 of Knight’s Addition to the town of Tuckerman, Arkansas. The plaintiff alleged that Charles Parrott had conveyed this lot to his wife, Martha Parrott, but that the deed had been lost. The record contains no proof that Charles Parrott executed a deed to said lot 2 to Martha Parrott. It does show that 'Charles Parrott orally agreed to convey said lot to Martha Parrott, but died without having-executed the deed. Martha Parrott never entered into possession of the lot.

Equity never enforces a voluntary agreement to convey land where no possession has been taken of the land or valuable improvements made on it. It is only when the donee takes possession and makes valuable and substantial betterments upon the land, in reliance on the donation, that specific performance will be enforced. In such a case the expenditures of the donee supply a valuable consideration, and the possession and betterments constitute such part performance as to take the case out of the statutes of frauds. Young v. Crawford, 82 Ark. 33, 100 S. W. 87; and Murphy v. Graves, 170 Ark. 180, 279 S. W. 359.

The paper title of the plaintiff also failed as to lot 1, in block 1. Martha Parrott had the record title to this lot, and made a deed of trust to John R. Loftin, Jr., trustee, to-secure an indebtedness which she owed A. S.' Lawrence. Default was made in the payment of the indebtedness, land a foreclosure of the deed of trust was had under, the power of sale contained in it. The trustee executed a deed to A. S. Lawrence, who became the purchaser at the foreclosure sale under the power contained in the deed of trust. The amount secured by the deed of trust was $160, and the amount bid by Lawrence at the foreclosure sale under the power contained in the deed of trust was $60. Under § 6807 of Criawford & Moses’ Digest, notices in conformity with any deed of trust as to amounts under $350 may be posted in five conspicuous places in the county, but the statute further provides that notice shall be served in all cases upon the debtor as summons is now served. No service was had upon Martha Parrott, ias required by the statute, and for that reason the sale was invalid. Gleason v. Boone, 123 Ark. 523, 185 S. W. 1093, and Wilkison v. Hudspeth, 134 Ark. 132, 203 S. W. 263. In these and in other cases decided by this court it is held that, where the statutory requirements as to making the sale are not complied with, the sale is void.

It is next contended by counsel for the plaintiff that he has acquired title by the payment of' taxes for seven consecutive years, the lands being unimproved. Plaintiff cannot claim to be holding title under Martha Parrott, because, as we have already seen, her title to the lot owned by her was never legally divested, and she never acquird any title to the lot owned by her husband. Plaintiff must therefore iclaim under A. S. Lawrence; who claimed the land by virtue of the trustee’s deed executed to him in 1917. There had been no payment of taxes for seven consecutive years up to that time by the plaintiff. The record shows that the lands were sold in 1920 for the nonpayment of taxes for the year 1919. William M. Biggers, the purchaser at the tax sale, received a tax deed on July 6, 1922. In 1923 he sold one of the lots to Fannie Boyce, and both lots were inclosed by a fence, and have been in the possession of said defendants ever since. Thu® it will be seen that the record does not bear out plaintiff in his contention. On the other hand, the clerk’s tax deed is in regular form, and gave color of title to William Biggers and Fannie Boyce. They-held adverse possession under this tax deed for two years prior to the bringing of this action, and acquired title thereby. Black v. Brown, 129 Ark. 270, 195 S. W. 673; and Culver v. Gillian, 160 Ark. 397, 254 S. W. 681.

Finally it is insisted that the decree should be reversed because the court erred in transferring the case to equity. In the first place, it may be said that the facts in the case are undisputed, and this court has held that a decree in equity will not be reversed, although the case was improperly transferred from law, where, under the law and facts, the judgment, if rendered at law, must necessarily have been the same. Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, 1199. To the same effect see Clark v. Spanley, 122 Ark. 366, 183 S. W. 964; and Shapard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 L. R. A. 247. Moreover, Fannie Boyce asked for a reformation of the deed to her from "William M. Biggers, and this gave a court of equity jurisdiction in the case.

The result of our views is that the decree of the chancellor is correct, and it will be affirmed.


author: Kirby, J.

text:
    Tipton v. Phillips.
    Opinion delivered February 13, 1928.
    1. Parties — waiver of defect. — Where objection, to the incapacity of plaintiff to sue to set aside a judgment to which she was not a party was not raised until after the trial was concluded, the defect will be deemed to have been waived, since the incapacity of parties should 'be raised by answer or special plea at the beginning and not at the end of'a lawsuit.
    2. Judgment — amendment.—A judgment will not be amended to reflect a judgment that was actually rendered by the court, unless the testimony is clear, decisive, and unequivocal.
    Appeal from Johnson Circuit Court; J. T. Bullock, Judge;
    reversed.

      Jesse Reynolds, for appellant.

      Hugh Basham and J. H. Brock, for appellee.
   Kirby, J.

This is an action begun by Belle Phillips against Marshall Tipton, Edra Davis and Bex Davis, in • the probate court of Johnson'County, for a nunc pro tunc order correcting the judgment of the probate court. The plaintiff alleged, in substance, that the record of the probate court showed that on the 18th day of March, 1922, a judgment of that court was entered through mistake, showing that certain minors, towit, Edra and Bex Davis, were adopted by Marshall Tipton and Euphemia Tipton, whereas the judgment that was actually rendered was for the adoption of said minors by Marshall Tipton alone, and not by Euphemia Tipton. The plaintiff alleged that she was the mother and only heir-at-law of Euphemia Tipton, who had since died, in December, 1925.

Tipton answered, denying the allegations of the complaint, and alleged that Euphemia Tipton was one of the parties to the adoption of the Davis children, and that the judgment of the probate court was correctly entered showing that she was the wife of Marshall Tipton and a joint party to the adoption proceedings with Marshall Tipton, and that the children were adapted in her name as well as in his.

The judgment of the probate court entered on March 13, 1922, recites that the Hon. J. J. Montgomery was the presiding judge. In the matter of the adoption of Rex and Edra Davis the following is the record entry of the judgment:

“In re adoption of Rex M. and Edra Davis, No. 45. On this day is presented to the court the petition of Euphemia Tipton and M. T. Tipton, stating that he desires to adopt Rex Murphy Davis and Edra Davis, minors, of the age of ten and twelve years, respectively. And it appearing to the court that the said minors are residents of Johnson County, that their father and mother are de'ad, and that they have no property, that they have been living with petitioner for nine years, it is therefore ordered by the court that the said minors be adopted by the said Euphemia Tipton and M. T. Tipton, and their names shall henceforth be Tipton, and they shall hold the same relation to the said petitioner as if they were their own children.”

Fred Russell testified, in substance, that he was the clerk of Johnson County in 1922. He identified petition by M. T. Tipton for adoption of Rex Murphy Davis and Edra Davis, minor children, sworn to on March 18, 1922. Witness did not know whether Mrs. Tipton was present at the time or not. The petition was signed by M. T. Tipton, and was the only paper that was filed on that day. Euphemia Tipton never swore to the petition before witness. Another petition wlas introduced and identified by the witness', which reads as follows:

“In the Probate Court of Johnson County.— Euphemia — M. T. Tipson — Petition for adoption of Rex Murphy Davis and Edra Davis, minor children.
‘ ‘ Comes your petitioner, M. T. Tipton, and states that he is desirous of adopting Rex Murphy Davis and Edra .Davis, two minor children, who are residents of Johnson County, Arkansas, and aged ten and twelve years, respectively; that said children have no father and mother and no property; that they have been living with the petitioner for nine years, and that he thought said children had been adopted at the time he took them. "Wherefore your petitioner asks the court to grant his prayer and adopt the said children.
“M. T. Tipton, Petitioner.
“Subscribed and sworn to before me this the 18th day of March, 1922.
“Fred Russell, County Clerk.”
(On back) “No. 15. Petition for adoption of Rex M. and Edra Davis.
“3/13/22. Examined, and prayer granted, and said children ordered adopted. J. J. Montgomery, Judge. ’ ’

The -witness stated that the changes that now appeared on the last petition above copied, he thought, were made before the petition was presented to the court. They were all made at the time Tipton made the affidavit, and were not made after the case was heard by the court. Witness further testified that he did not think Euphemia Tipton was present, and she did not make the affidavit to the petition. If she had, witness would have had her to sign it. Witness was asked what caused him to put her name at the top of that petition, and answered that he did not remember, but his opinion was that, when Judge Montgomery changed Marshall to Tipton, that brought it to witness’ mind that if it was Tipton in the style of the case it would be Tipton in the body of the petition, and witness changed that on his own initiative. Witness did not remember that Mrs. Tipton was in his office. He did not remember seeing any of them, and did not remember Tipton being there, but knew that he was because he swore to the petition.

J. J. Montgomery testified that he was county judge of Johnson County on the 13th day of March, 1922. He drafted the original petition in his office for Mr. Tipton. “Euphemia” was put in there after he had drafted the petition. Witness’ recollection is that he drafted the indorsement on the back of the petition at his office. ■After he drafted the petition, he gave it to Mr. Tipton, and told him to take it over to the clerk’s office. The word “Enphemia” in the caption to the last petition set out above was inserted after it left witness’ office. The first time witness knew about the word Euphemia being inserted in the caption was when Mr. 'Brock brought it over to witness and called witness’ attention to it, about the time this action was begun — some time last summer. In making the indorsement on the back of the petition, to-wit, “Examined, and prayer granted, and .said children ordered adopted,” signed by witness, it wlas witness’ intention to make the order of adoption as it read at the time witness made the indorsement. The clerk prepared the form of the record entry. Mr. Bussell was the clerk at that time. Euphemia Tipton was not present when witness made the order. Mr. Tipton came to witness’ office one day,'and said that he wanted to adopt these children, and to know if he could adopt .them, and witness 'asked him some questions — where the children were living, and with whom, and he told witness that they were living with him, and had been for several years. Witness asked him about their parents, and thinks that he told witness that their parents were dead. Witness asked Tipton to bring the children down and let witness talk with them, and he said that he would. One day not long thereafter he came in and brought the children and said, “Here are these children. You can ask them whatever you want to, or talk to them about the adoption.” Witness sat down in his office and talked to the children about the adoption, and Mr. Tipton was with them, but Mrs. Tipton was not. They told witness that they wanted Mr. Tipton to adopt them. Mrs. Tipton never made any request for the adoption, and no one for her made such request.

On cross-examination witness stated that it was his idea to do what Mr. Tipton wanted about it. He was trying to comply with his wishes, He was asked if he told Marshall Tipton that it ivas necessary for his wife to join in the petition, and stated that he did not remember ; that he might have done it. Witness was asked the following question: “Did you tell him that the petition of one wlas the petition of both of them — that it was not necessary for his wife to sign it? A. No, I didn’t tell him that; if I told him that it wasn’t necessary for his wife to sign it, it was bedause he wanted to adopt them, and his wife wasn’t known in it; that would have been the only reason I would have told him that.” Witness did not remember whether Tipton asked him if he hadn’t better have his wife sign it too. Witness examined the petition, as it had been changed, and said that none of the changes were made in the petition at the time he approved it, except the word “Tipton” was written by him with an indelible pencil. He did not write the word “Tipton” in ink, and did not write the word “Euphemia” or the word “Tipton” as it is written at the other places in the petition. Witness changed the word “Marshall” as it appeared in the original petition to “Tipton” as soon as he took it out of the typewriter, so as to make it read “Marshall Tipton.” Witness explained that the court convened on Monday, which was the 13th, and if the petition was dated on the 18th, as it appeared, and was indorsed on the 13th, as it also appears, witness dated it back so as to make it appear that it was allowed on Monday, the day the probate court was in session. Witness ’ purpose was to do what Marshall Tipton wanted done at that time, and he told witness that he wanted to adopt the children. If he had come in and asked to have the children adopted by himself and wife, witness would have done it that Avay. Witness remembered very distinctly talking to the children and about Tipton bringing the children to let AAdtness talk to them. Witness erased the word “Marshall” and wrote the word “Tipton” in pencil in the heading of the petition. Witness Avould not have included Mrs. Tipton in the petition unless she had been there to .sign it. When a man and his wife adopted children, AAdtneS'S had them both present, and would not have entered an order of adoption for both of them without both being present. When only one wanted to adopt, then witness did not require the other party to be present. Witness signed the probate record approving the same, but never did relad every word in a record — all witness did was to see that all the cases were on record, but did not read the body of the order. The clerk was recalled, and testified that he wrote the record of the orders, and tried to write the same to state the facts as recited in the petition and granted by the court. Witness did not remember whether the approval on the back of the petition wlas on the same when it was- brought to witness.

Tipton testified that he signed the petition for the adoption of the two minor children. It was prepared in the clerk’s office by Judge Montgomery. Witness and his wife and the judge and Mr. Russell were present. The witness a-sked the judge if it was necessary for his wife to sign it, and he replied that it was not necessary. Witness ’ wife was present there with witness at the time. The children were not with them that day. Witness had brought them in before thlat to have Judge Montgomery talk with them, and, about a week or ten days thereafter, witness and his wife had them adopted. Witness’ wife was present when her name was written in the petition. They came to town for that purpose. Witness’ wife told the judge at that time that she wanted the childfen adopted — that she had no children of her own, and what little property they had they wanted these children to have it. That was his wife’s request on that occasion. Russell, the clerk, swore witness to the petition about the 13th of March, the day that Judge Montgomery wrote the petition for witness. It was done right there in the clerk’s office. 'The judge told witness that it was not necessary for witness or witneiss’ wife to sign it; that the court’s order would be sufficient. Witness thought it would be best to sign it, as that wlas the way he always did business. Witness’ wife took the judge at his word, and did not sign it. Witness’ wife stood there and heard the whole conversation.

The defendant offered to prove that the names of the family were written in the family Bible by Jim Stoveall, at the request of Mrs. Tipton. These names were as follows: “M. T. Tipton, Euphemy Tipton, Edra Tipton and Rex Tipton, adopted children of M. T. and Euphemia Tipton, in December, 1925. ” The court would not admit this testimony, to which ruling* of the court the defendant at the time duly excepted.

The probate court denied the petition, and refused to amend the record, and the cause was appealed to the circuit court, where the testimony as above set forth was adduced. The circuit court found that the entry of the judgment of the probate court showing that the minors were adopted ¡by Euphemia Tipton and M. T. Tipton was erroneous, and that such record of the judgment entry ‘ ‘ should be amended by mmc pro tunc order so as to show that said minors, Rex Murphy and Edra Davis, were adopted by M. T. Tipton alone,” and entered a judgment in accordance with its finding, from which is this ¡appeal.

1. The fourth ground of appellant’s motion for a new trial was. that “the court erred in finding Mrs. Belle Phillips is entitled to maintain this suit to correct the record in a proceeding in the probate court of Johnson County, Arkansas, to which she was not a party. ’ ’ The question of defect of parties was not raised by the appellant in its answer,, nor ¡by .special plea for that purpose. A defense of defect of parties should be raised by answer or by special plea to that effect at the beginning and not at the end of a lawsuit. Since the appellant did not plead a defect of parties until after the trial was concluded, he must be deemed to have waived such defect. Yarnley v. Thompson, 30 Ark. 399; Cartwright v. Dennis, 163 Ark. 503, 260 S. W. 424; Summers v. Heard, 66 Ark. 550, 50 S. W. 78; 51 S. W. 1057; Arkansas Road Construction Co. v. Evans, 153 Ark. 142, 239 S. W. 726; see also Flanagan v. Drainage District No. 17, ante, p. 31.

2. The issue on the application to correct the judgment of the probate court by nunc pro time entry is purely one of fact as to whether or not the judgment as entered was the judgment actually rendered. We have fully set out the evidence on this issue, and it speaks for itself. It would serve no useful purpose to comment at length upon it.

We have reached the conclusion that the testimony is not clear, decisive and unequivocal to the effect that the record of the judgment of the probate court 'as originally written does not reflect the judgment that was actually rendered 'by that court. The proof therefore adduced by the appellee does not meet the requirement of the law as announced in our former opinions. See Midyett v. Kirby, 129 Ark. 301, 195 S. W. 674; Murphy v. Citizens’ Bank of Junction City, 84 Ark. 100-106, 104 S. W. 187, 934, and cases there cited; Sloan v. Williams, 118 Ark. 593, 597, 177 S. W. 427; see also McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 737; Foster v. Beidler, 79 Ark. 418, 96 S. W. 175; Davenport v. Hudspeth, 81 Ark. 166, 98 S. W. 699.

The judgment of the trial court must therefore be reversed, and the causé remanded with directions to the circuit court to affirm the judgment of the probate court.

Wood, J., dissents.


text:
    Blanton v. Jonesboro Building & Loan Association.
    Opinion delivered February 20, 1928.
    1. Drains — sale op land for nonpayment of drainage taxes.— Where land, subject to drainage taxes, was sold to the drainage district in a suit for delinquent taxes, the proceedings being in all respects valid, the district acquired title to the property under conveyance from the commissioner after the period for redemption had expired.
    2. Drains — authority of drainage district to resell property bought in. — Where a drainage district bid in land at a public sale under foreclosure decree for nonpayment of drainage assessments, the district had power to resell the lands for the purpose of acquiring funds for the prosecution of the drainage work.

      3. Drains — -agreement as to redemption of land. — Correspondence between the attorney of the mortgagee and the secretary of a drainage district, by which the secretary was requested to draw on the mortgagee for the amount of drainage assessments' on particular property, which was described, and where the secretary promised to draw as requested and to execute a quitclaim deed, held to constitute a valid contract for conveyance of property bid in by the drainage district for unpaid assessments, and the contract was specifically enforceable between the parties.
    4. Drains — authority of secretary of .drainage district. — Where the secretary of a drainage district organized under Acts 1917, p. 1053, customarily acted for the board in making contracts for redemption of land or for repurchase thereof, after foreclosure for unpaid drainage assessments, such secretary had implied authority to contract for' conveyance of property bid in by the district to a mortgagee offering to pay the costs and charges against the land, although the secretary had no written authority to make such sale.
    5. Brokers — oral contract of employment. — It is not necessary that authority to sell and make a binding contract for the sale of land should be in writing, as a contract employing an agent to find a purchaser for land is not within the statute of frauds.
    6. Attorney and client — authority of attorney. — Where a mortgagee instructed his attorney to redeem a lot in question from a sale for drainage districts or to acquire a title of the drainage district, such attorney had authority to make a binding contract for the purchase of a lot from the district which had bid it in for unpaid drainage assessments, notwithstanding the attorney had no written authority.
    7. Drains — purchaser with notice of outstanding contract.— One who purchased a lot from the drainage district with knowledge that the district had agreed to convey it to another, acquired no better title against the person holding such contract for conveyance than the drainage district had.
    8. Mortgages — right to foreclose. — Where a mortgagee of land which had been, sold to' a .drainage district for nonpayment of taxes contracted with the district to redeem the property, as against one who took a quitclaim deed from the district with knowledge of the mortgagee’s rights under the contract, such mortgagee is entitled to foreclose its lien.
    Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    Jonesboro Building & Loan Association brought suit in equity against C. E. Causey to foreclose two mortgages on lot 1, block 3, of E. Bitter’s Second Addition to the town of Marked Tree, Arkansas, to secure an indebtedness amounting in the aggregate to $1,127.30'. A decree of foreclosure was entered of record on the 14th day of .August, 1925, and the lot was ordered sold, in default of the payment of the indebtedness found due. Subsequently a supplemental complaint was filed, asking that Drainage District No. 7, Dick Bay and C. A. Blanton be made parties defendant.
    It was alleged that Drainage District No. 7 had foreclosed its lien for unpaid drainage taxes, and that the lot in question had been sold to it; that said drainage district h'ad first entered into a written contract to convey said lot to Dick Bay, and had subsequently executed a quitclaim deed to C. A. Blanton to said lot.
    The record shows that Drainage District No. 7 brought suit in equity against C. E. Causey to foreclose its lien for unpaid drainage taxes. A decree of foreclosure was entered of record on the 3d of December, 1923, and the lot was ordered sold for the nonpayment of said drainage assessments at the time, on the terms and at the place of sale prescribed by the decree and the statute for the sale of land for unpaid drainage assessments. On the 10th day of April, 1924, the lot was offered for sale pursuant to the terms of the decree, and Drainage District .No. 7 became the purchaser at the sale. The commissioner who made the sale executed a deed to said lot to said district, and this deed was approved by the chancery court.
    Dick Bay had a second mortgage on said lot to. secure the sum of $6,000 owed him by C. E. Causey. He became the purchaser of the mortgages of the Jonesboro Building & Loan Association, and had them transferred to him. Subsequently he applied to A. D. Shelton, secretary of said drainage district, to purchase said lot. On November 11, 1925, the attorney of Bay wrote the following letter:

      “Mr. A. D. Shelton,
    Lepanto, Arkansas.
    “Dear sir: On October 27, 1925, we wrote yon regarding lot 1, block 3, E. Bitter’s Second Addition to Marked Tree, assessed against O. E. Cansey, inquiring the amount’ of- taxes due Drainage District No. 7 for 1923. This is of considerable importance to us, as we are anxious to secure a deed to this property and to pay all taxes and charges there are against it.
    “In order to facilitate matters, won’t you be good enough to draw at sight on Mr. Dick Bay, Memphis, Tenn., attaching to the draft deed to him, and cause the same to be .sent to the East Memphis Bank & Trust Company,' Memphis, Tennessee, for collection?
    “This property is being foreclosed, and, as we hold a second mortgage thereon, it is necessary that we get the title cleared up just as soon as possible.
    “Thanking you to attend to this as soon as you can, we are,
    “Tours very truly.”
    Shelton replied to the letter :as follow:
    “Lepanto, Arkansas, November 13, 1925. “Ewing, King & King, Attys.
    Memphis, Tenn.
    “Gentlemen: Beplying to your letters of October 27 and November 11, with reference to lot 1, -block 3, E. Bitter’s Second Addition to Marked Tree, and the amount of taxes, etc., will say that at this particular time the books are being audited, and all of the records are in the hands of the auditor. Within a few days I will get the list of taxes, and, if the same has been sold to the district, I will have quitclaim deed properly executed and delivered to you.
    “It may possibly be a week or ten days, but it will be duly attended to, and draft drawn as per your instructions.
    “Very truly.”

      On October '22, 1925, Shelton had sent to the attorneys. of Ray a letter giving an itemized' statement of all the taxes and assessments due upon said lot, which amounted in the aggregate to $112.31. In reply to the letter of Shelton of November 13, the attorneys of Ray wrote the following:
    “November 16, 1925.
    “Mr. Allen D. Shelton,
    Attorney at law,
    Lepanto, Arkansas.
    “Dear sir: We thank you very much for yours of the 13th inst. relative to lot 1, block 3, E. Ritter’s Second Addition to Marked Tree. The writer saw Mr. Ray this morning, and, if you will simply draw on him at sight through the East Memphis Bank & Trust Company of this city, attaching to the draft proper quitclaim, the same will be taken up immediately.
    “If there is anything you can do to facilitate the . execution of this deed, 'the same will be very much appreciated.
    “Tours very truly.”
    On November 19, 1925, said drainage district executed a quitclaim deed to .said lot to C. A. Blanton in consideration of $17.38.
    C. E. Causey has been in possession of said lot during the whole of these proceedings. A. D. Shelton has been secretary of Drainage District No. 7 since March, 1925. He admitted receiving the letters about the lot set out above and writing the replies thereto. The board of directors of the drainage district alone had authority to execute deeds to lands owned by it. It was the policy of the board to sell the land bought by it to former owners. It was customary to sell to them upon payment of the taxes and costs due to the district. Because C. ÍJ. Causey requested the deed to be made to C. A. Blanton, the board executed the quitclaim deed in question, and disregarded its promise to convey the lot to Ray. Witness said that he was the representative of the district with whom any taxpayer or landowner would conduct negotiations or would .see in connection with redeeming his land from sale for delinquent taxes. We copy from his testimony the following:
    ‘ ‘ Q. So far as handling the matter like the one in question was concerned, you had the authority to do that, and you were the one who handled those of that kind? A. I think I took that authority. After they have gone delinquent, I could really have a right to sell this land to anybody who wants it. ’ ’
    According to the testimony of C. E. Causey and C. A. Blanton, there was no collusion between them about the purchase of the land. Causey asked the secretary of the district to execute a deed to Blanton, because he owed Blanton and preferred to favor him to his other creditors. Blanton admitted that he had not collected any rent from Causey, who still occupied the house on the lot in question, but said that the reason he had not- done so was because the matter .became involved in litigation at once, and he thought he would wait until he saw whether or not his title was valid.
    The chancellor found that Drainage District No. 7 had no authority to execute a quitclaim deed to C. A. Blanton, and that the contract between said drainage district and Dick Bay was valid. It was therefore decreed that Blanton hold the legal title as trustee for the benefit of C. E. Causey, and that the lot should be sold to secure the payment of the mortgage liens due the Jonesboro Building & Loan Association and Dick Bay. C. A. Blanton has duly prosecuted an appeal to this court.

      C. T. Carpenter, for appellant.

      Hawthorne, Hawthorne & Wheatley, Eugene Sloan and Eiving, King & King, for appellee.
   Hart, C. J.,

(after stating the facts). The title was acquired by the drainage district when the land was struck off to it in April, 1924, and the deed was made to the board of directors of the drainage district by the commissioner who made- the sale. There was a valid decree of foreclosure for the nonpayment of drainage taxes, and the statute was in all respects complied with by the commissioner who made the sale, and the conveyance in pursuance thereof to the board of directors was a valid one. The drainage district was organized under a special act passed by the Legislature of 1917. Acts 1917, vol. 1, page 1053. The suit was instituted by the district against Gausey, as owner of the land, for the nonpayment of drainage taxes, in accordance with § 28 of the act. When the land was sold under the decree, the board of directors of the drainage district became the purchaser thereof. Section 28 provides that, where lands are offered for sale as provided by the act, and the amount of the taxes due, with interest, costs and penalty, is not bid at the sale, the commissioner shall bid the land in in the name of said board of directors of said drainage district for the whole amount due as aforesaid. The section further provides that the commissioner shall then execute his deed thereto as in other cases under this act, conveying such land to such drainage district, and that such deed, when duly executed in conformity to the provisions of the act, and recorded, shall be received as evidence in all cases, showing an indefeasible title in said purchaser, unassailable in law or in equity.

In Douglass v. Lewis, 131 U. S. 45, 9 S. Ct. 634, 33 L. ed. 53, it was said that a covenant that the grantee is seized of an indefeasible estate in fee simple is a covenant for a perfect title. Hence, under the provision of the statute just referred to, the drainage district acquired an absolute title to the land after the period of redemption provided by the statute had expired.

While there is no express provision authorizing the drainage district to sell lands acquired by it in this manner, we think the power to sell arises by necessary implication. It would seem that there would be no use in providing that the district should have an absolute title to lands purchased by it for the nonpayment of drainage assessments if they could not sell the lands in aid of the drainage work. The drainage board was an involuntary quasi corporation created to construct a public work, authorized to procure the means to accomplish the improvement by the imposition of assessments upon private property. It was a governmental agency existing- for a public purpose, and, while it could hold no real estate in a proprietary sense, it was empowered to bid in the land at a public sale for the nonpayment of drainage assessments and to acquire an absolute .title, thereto, and this, we-think, by necessary implication, gave power to resell the lands for the purpose of acquiring funds for the prosecution of the drainage work. This view receives support from the following cases: Altheimer v. Board of Directors Plum Bayou Levee Dist., 79 Ark. 229, 96 S. W. 140; Board of Directors St. Francis Levee District v. Fleming, 93 Ark. 490, 125 S. W. 132, 659; and Chicago Mill & Lumber Co. v. Drainage Dist. No. 17, 172 Ark. 1059, 291 S. W. 810.

It is next contended that no valid contract was made with Bay by the district for the purchase of the land. We have copied the letters written by the attorneys of Bay and the replies of the secretary of the drainage district thereto. In these letters the terms of the contract are plainly set out. The names of the contracting parties are given, there is a proper description of the lot to be sold, and the price and method of payment are given. This constituted a valid contract which might be specifically enforced between private parties. Moore v. Exelby, 170 Ark. 908, 281 S. W. 671.

We can see no reason why the doctrine of specific performance should not apply to a drainage district. But it is contended that Shelton had no power to make the contract, and reliance is placed upon the case of St. Francis Levee District v. Cottonwood Lumber Company, 86 Ark. 221, 110 S. W. 805, and Ritter v. Board of Directors of St. Francis Levee District, 128 Ark. 324, 194 S. W. 13. We do not think these cases apply. In the first case it was held that the district was not bound by the unauthorized promise of the secretary of the board. The same holding’ was made in the latter case with regard to the unauthorized act of the president. The court held that, while he had authority, under the statute, to make the deed, he had no power to enter into a covenant to refund the purchase price if the title failed, and that he could not execute a deed with covenants of warranty. Quite a different situation confronts us here. The secretary of the board testified that it was his custom to act for the board in making contracts for the redemption of the land or the repurchase of it by the owner or by •those interested in it. He said that it was the custom to give a preferential right to the owner. It is fairly inferable from his testimony, which is not contradicted, that he had the power to enter into ia contract on behalf of the board for lands which had been sold to it under foreclosure proceedings for the nonpayment of the drainage assessments. Of course, in all cases the deed would be executed by the board of directors of the drainage district in whom was the legal title. This court has .held repeatedly, however, that it is not necessary that authority to sell and make a binding contract for the sale of land should be in writing. The reason is that a contract employing an agent to find a purchaser of land is not within the statute of frauds. Moore v. Exelby, 170 Ark. 908, 281 S. W. 671, and cases cited.

The rule announced in these cases would also govern the power of the attorneys of Ray to execute a contract for him. According to the testimony of Ray and of one of his attorneys, he had placed the matter in their hands for the purpose of redeeming the lot in question from the sale for drainage taxes, or in some way acquiring the title of the drainage district to it, in order that he might subject it to the payment of his mortgage. It was realized that the lot was worth more than the amount of the drainage district tax, interest and costs. Hence we think the record shows that the attorneys of Ray had a right to make a binding contract for the sale of said lot to Ray and that the secretary of the district had a right to make a binding contract for it.

The letters on their face purport to be a completed contract, and became enforceable as a written agreement before tbe quitclaim deed to Blanton was executed. The record shows that Blanton purchased the lot with notice of the outstanding contract made by the secretary of the drainage district with Ray. Indeed, this is how came Blanton to purchase the lot. The secretary of the drainage district told him about the letters he had written to Ray, and Blanton persuaded Causey to ask the board of directors of the drainage district to execute a deed to Blanton, and the latter, having notice of the contract of Ray, acquired no better title to the lot than the drainage district in whose shoes he stands. Vance v. Newman, 72 Ark. 359, 80 S.W. 574, 105 Am. St. Rep. 42; and Adams v. Rhodes, 143 Ark. 172, 220 S. W. 29. In the latter case it was expressly held that, where a 'defendant had contracted to sell land to the plaintiff, a third person who purchased the land with notice of his rights is not an innocent purchaser, and -plaintiff is entitled to specific performance as against him.

The result of our views is that the decree of-the chancery court was correct, and it will be affirmed.


text:
    State ex rel. Attorney General v. Williams-Echols Dry Goods Company.
    Opinion delivered February 20, 1928.
    1. Statutes — partial invalidity. — When different clauses of an act are so dependent upon each other that it is evident that the Legislature would not have enacted one of them without another, the whole act will fall with the invalidity of a particular clause.
    2. Statutes — partial invalidity of statute. — Crawford & Moses’ Dig., §§ 9965, 9966, providing that all corporations doing' business in the State, with certain exceptions, shall make and file a specified statement of intangible property for the purpose of assessment and taxation, being unconstitutional as applied to foreign corporations, is also unconstitutional as to domestic corporations, since the provisions of the act are not severable.
    3. Constitutional law — construction of statutes. — It is the duty of the court to interpret the statute as it is written, and not to limit1 or restrict the plain meaning of words so as to make it constitutional, where its plain and ordinary meaning renders it unconstitutional.
    4. Statutes — effect of unconstitutional statute. — Where a statute is held to be unconstitutional, it is, in legal contemplation, as inoperative as though it had never been passed, and former statutes on the subject are left in force and unimpaired.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    The State of Arkansas, on the relation of the Attorney General, brought this suit in equity against WilliamsEchols Dry Goods Company, a corporation duly organized under the laws of the State to sell dry goods at wholesale in Fort Smith, Arkansas, to recover back taxes. The chancery court sustained a demurrer to the complaint, and the State refused to plead further, and elected to stand on its demurrer. Whereupon the chancery court dismissed the complaint for want of equity. The State has appealed.

      H. W. Applegate, Attorney General, R. E. L. Johnson and John M. Rose, for appellant.

      Cravens & Cravens, for appellee.
   Hart, C. J.,

(after stating the facts). The suit wias instituted under an act of the Legislature of 1917, providing for the assessment of insurance companies and assessing for taxation the intangible property of all corporations.

Section 1 of the act relates to the taxation of insurance companies, and is ■§ 9964 of Crawford & Moses ’ Digest. Section 2 is § 9965 of the Digest, and provides that all corporations doing business in this State, except corporations whose property is assessed by the Arkansas Tax Commission and the-corporations required to make and file the special returns provided for in § 9904, shall, in addition to the list prescribed by § 9904, make and file with the assessor of the county wherein its principal office is situated a statement wherein shall be definitely set forth certain matters, which are specifically stated, but which need not be set out here. Section 3 of the act is § 9966 of the Digest, and provides that any person whose duty it is made by the act to prepare the returns required in the act, who shall fail to do so, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not less than $100 nor more than $1,000, and, in addition thereto, the charter of said corporation shall be forfeited.

'This section was held invalid, in so far as it applied to foreign corporations, in State ex rel. v. Lion Oil & Refining Co., 171 Ark. 209, 284 S. W. 33. The necessary effect of our opinion in that case was to hold the statute unconstitutional, so far as it applied to foreign corporations. Otherwise we would have held that its terms did not include foreign corporations, and this would have ended the case. The reason that we reserved the question Whether the unconstitutional part was severable from the remainder was because we did not deem it wise or expedient to pass upon the question of its constitutionality in so far as it related to domestic corporations until that issue was squarely presented and fully argued, as has been done in the case at bar.

It is an elementary rule of constitutional construction that it is only when different clauses of an act are so dependent upon each other that it is evident that the Legislature would not have enacted one of them without the other — as when the two things provided are necessary parts of one system — that the whole act will fail with the invalidity of one clause. Huntington v. Worthen, 120 U. S. 97, 7 S. Ct. 469, 30 L. ed. 588.

In the application of the rule in Cooley’s Constitutional Limitations, 8th ed., vol. 1, pages 360 and 361, it is said that, where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions 'are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. This rule has been adopted and applied with varying facts by this court. Ex parte Deeds, 75 Ark. 542, 87 S. W. 1030; Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77; Nixon v. Allen, 150 Ark. 244, 234 S. W. 45; and Replogle v. Little Rock, 166 Ark. 617, 267 S. W. 353, 36 A. L. R. 1333.

In the first case cited it was held that an unconstitutional provision in a statute in favor of resident merchants could not be stricken out so as to leave the remainder of the act unimpaired, as to do so would leave the statute applicable to resident merchants, contrary to the express intention of the Legislature. In discussing the application of the same rule in United States v. Reese, 92 U. S. 214, 23 L. ed. 563, it was said:

“We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if theie be any such, from that which is not.. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of thé sections must stand as a whole, or fall together. The language is plain. There is ho room for construction, unless it be as -to the effect of the .Constitution. The question, then, to be determined is whether we can introduce words of limitation into a penal statute so as to. make it specific when, as expressed, it is general only * * *. To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.”

The rule was later approved and again applied in Hill v. Wallace, 259 U. S. 44, 42 S. Ct. 453, 66 L. ed. 822.

In the application of this well-settled rule’to the case at bar, we are of the opinion that the statute is unconstitutional as to domestic corporations. It will .be observed that the language of the act refers to all corporations. If it had contained separate sections concerning foreign corporations and domestic corporations, it might be said that the statute was separable, and the unconstitutional part as to foreign corporations might be stricken out and leave enforceable that part relating to domestic corpora-lions. 'Such is not the case, however. The language is plain, and refers to all corporations. The act prescribed la severe penalty for the failure of the officer of the corporation to comply with its terms. To sustain the act as to domestic corporations would require us to strike out the words “all corporations,” and to disregard their plain and ordinary meaning, and substitute therefor the words “domestic corporations.”' To limit the statute in this manner would require us to amend the statute, and, as has been said, this is no part of our duty. It is our duty to interpret the statute as it is written, and we cannot limit or restrict the plain meaning of the words used so as to make constitutional a statute which, when construed according to the plain and ordinary meaning of the language used; would be unconstitutional.

It follows that the decree of the chancery court was correct, and it must be affirmed.


author: Smith, J.

text:
    Johnson v. Spangler.
    Opinion delivered February 20, 1928.
    1. Appeal and error — conclusiveness of court’s finding. — A finding by the circuit court sitting as a jury, based on conflicting evidence, is binding on the Supreme Court.
    2. Witnesses — action against guardian of insane person. — In an action on a note brought against the guardian 'of an insane person, denial by plaintiff of the testimony of the maker’s bookkeeper concerning the payment of the note does not offend against the prohibition of § 4144, Crawford & Moses’ Dig., providing that in actions against guardians neither party shall testify against the other as to any transactions of the ward unless called to testify thereto by the opposite party.
    3. Appeal and error — presumption that court considered competent evidence.- — -In the trial of a case before the circuit court ■sitting without a jury, the presumption is that the court considered such evidence only as was competent.
    4. Limitation of actions — evidence of payment. — Where payments were relied upon to stop the running of the statute of limitations, the 'burden of proof is on the party alleging it to show by other evidence, in addition to the indorsement on the note, that the payment was in fact made.

      5. Limitation of actions — effect of part payment indorsed on note. — Where a note sued on was barred by the statute of limitations at the timé when the last payment thereon was made, such payment revived the deed, and it was not necessary that such payment be made in money where the satisfaction of demands of the maker against others was treated by all parties as payment of the amount indorsed on the note.
    Appeal from Sebastian Circuit Court, Greenwood District; J. 8am Wood, Judge;
    affirmed.

      Daily & Woods, for appellant.

      Dobbs & Young, for appellee.
   Smith, J.

Appellee brought this suit against Edgar P. Johnson, the guardian of W. E. Johnson, an insane person, to recover the sum alleged to be due upon a promissory note dated January 16, 1915, for $1,000, executed by W. E. Johnson to appellee’s order. Indorsed on the back of the note were the following credits: “Received on within note $56.50, February 23, 1918.” “Received on the within note $100, March 8, 1923.” These credits were indorsed in the handwriting of appellee.

Appellee was called as a witness in his own behalf, . and, over the guardian’s objection, was permitted to testify that the maker of the note had made the payments indorsed on the note. There was no other testimony showing that the payment of $56.50 credited under date of February 23, 1918, had been made. A, witness named M.. T. Rhodes, a nephew of appellee, testified that, as a boy, he heard a conversation between appellee and "W. E. Johnson in regard to a note, at which time a payment on the note was made, but the witness could not state in what year this conversation occurred nor could he identify the note sued on as the one upon which the payment had been made. The $100 payment was shown, however, by the testimony of two other witnesses — Rhodes and Davis— to have been made,' and to have been made at a date eárlier than the 20th of February, 1923, although the payment was not indorsed on the note until the 8th of March thereafter. These witnesses testified that they were indebted to Johnson, and that appellee was their surety, and that their accounts to Johnson, amounting to $100, were settled by an agreement whereby appellee was to -credit the amount of these accounts on the note. This was done, and their indebtedness to Johnson was discharged in this manner. Appellee 'testified, over the guardian’s objection, that the $100 credit was not indorsed on the note at the time it was allowed, for the reason that the note was not at hand at that time, and that the credit was later indorsed, but that the payment was actually made about the middle of February.

There was testimony tending strongly to show that the note was paid; that it was Johnson’s custom to borrow money from appellee and to make settlements about the first of the year, at which time the indebtedness would be ascertained and a note given to evidence it, and that Johnson never had outstanding more than one note at any one time to appellee. Appellee had another note executed by Johnson to appellee’s order, which he presented to Johnson’s guardian after Johnson became insane, and the guardian paid this note, and it is insisted that the note sued on had been paid, but had not been taken up when paid, because appellee stated, when the renewal note was made, that the note in suit had been lost. The testimony of Johnson’s bookkeeper tends very strongly to support this defense, but appellee categorically denied the bookkeeper’s testimony and the court, sitting as a jury, resolved this conflict in appellee’s favor, and that finding is binding upon us.

Ap-pellée had the right to deny the testimony of the bookkeeper, as such testimony did not offend against the prohibition of § 4144, C. & M. Digest, which provides that “in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other ias to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.”

Objection was made to the testimony of appellee to. the effect that payments on the note were made in 1918 and in 1923, but the court overruled the objection tentatively, upon the statement of appellee’s counsel that, if the testimony was not finally shown to be competent, it could be excluded and not considered by the court. The case /was tried by the court without a jury. Counsel for appellee asserts that it was his understanding, at the time this testimony was offered, that other testimony would show the payments had been sent to appellee by Johnson, but, when the testimony failed to establish that fact, it was conceded that appellee had given incompetent testimony, in that he had testified to transactions with the ward of the defendant guardian, and that thereafter the court was not asked to, and did not, consider this incompetent testimony, and that this testimony was not considered by the court in the findings of f'act made, but that the findings which were made were based upon testimony which was competent, to-wit, the testimony of Davis and Rhodes.

At the conclusion of all the testimony the court made the following findings of fact:

‘ ‘ The court finds that the plaintiff, in his own handwriting, on February 23, 1918, placed the following indorsement on said note: ‘Feb. 23, 1918, received on within note $56.50; ’ that said indorsement was written on said note by the plaintiff on February 23, 1918, within the five-year period of the statute of limitations. The court further finds that said note has an indorsement on the back thereof, in the handwriting of the plaintiff, dated March 8, 1923, as follows: ‘March 8, 1923, received on within note $100.’ The court finds that said indorsement was written by the plaintiff on March 8,1923, but further' finds, from the testimony of the witnesses Davis and Rhodes, that, on or about February 17, 1923, and before the 20th of February, 1923, said witnesses were indebted to W. E. Johnson on their several accounts, which accounts the plaintiff, Spangler, was surety for, and that the s'aid W. E. Johnson, by agreement with Spangler, credited their accounts on his books with the amount due him, and directed the plaintiff to credit his note with the amount; that there is no testimony in the record to refute the testimony of Davis and Rhodes that such credit was entered before the 20th of February, 1923, and that Spangler received a payment on said note within five years from the date of the former credit; and that the plaintiff, Spangler, received the credit on said note before the 20th of February, 1923, and before the bar attached, but wrote the indorsement showing the credit on March 8, 1923.”

Upon these findings the court rendered judgment for the face of the note, less the credits, with the interest thereon, and the guardian has appealed.

The guardian requested the court to make finding's ■ that the note had been paid; that it was barred by the statute of limitations; and that there was not sufficient competent testimony to show that a payment had been made on the note within five years before the institution of this suit. These requests were refused, and error is assigned upon these refusals. It is .also insisted that the court erred in admitting and in considering the erroneous testimony showing transactions between appellee, the plaintiff below, and the ward of the defendant guardian.

It is conceded that most of the testimony given by appellee was incompetent, las being in violation of the statute quoted above, but it is insisted that this testimony was not considered by the court, and that there was sufficient competent testimony to show a payment on the note by Johnson within five years of the date of the institution of this suit.

In the case of St. Louis, I. M. & S. Ry. Co. v. Berry, 86 Ark. 309, 110 S. W. 1049, it was said that, “in a trial of a case before the court sitting without a jury, the presumption is that the court considered such testimony only as was competent.” This presumption is reinforced by the findings of fact set out above, in which the court recites that the finding as to the payment made by Johnson on or about February 17, 1923, was based upon the testimony of Davis and Rhodes. See also Pace v. Crand all, 74 Ark. 417, 86 S. W. 812; Covington v. St. Francis County, 77 Ark. 258, 91 S. W. 186.

The competency of the testimony of the witnesses Davis and Rhodes is not questioned, and their testimony, if credited, as was done by the court, shows a payment on the note within five years of the date of the institution of the suit, land at a time when the maker of the note was sane.

Now, if the payment credited as having been made in 1918 could be «aid to have been shown to have been made by competent testimony, then the note was not barred by the statute of limitations when the last payment was made in 1923. It was evidently the opinion of the trial court, as reflected by the findings of fact, that the indorsement of the 1918 payment arrested the running of the' statute of limitations and formed a new period from which the statute ran. It has been said, however, that “where payments are relied upon fiy stop the running of the statute of limitations, the burden of proof is on the party alleging it to show by other evidence, in addition to the indorsement, that the payment was in fact made.” Slagle v. Box, 124 Ark. 43, 186 S. W. 299; Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S. W. 305; Brown v. Hutchings, 14 Ark. 84. As there was no other testimony that the payment indorsed in 1918 had been made except the indorsement itself land the incompetent testimony of Spangler, it must be held that the note was, in fact, barred by the statute of limitations when the payment'was made in 1923.

But, even though competent testimony does not show . that the payment in 1918 was made, competent and undisputed testimony does show a payment in 1923, and it becomes necessary therefore to determine the effect of that payment, as it was made within less than five years ' of the date of the institution of this suit.

In the recent case of Sanders v. McClintock, 175 Ark. 633, 300 S. W. 408, it was held that a partial payment made on the note there sued on did not have the effect of reviving that note as a subsisting obligation as to the unpaid balance, but it was so held because the circumstances attending' the payment were of such a nature as to rebut the presumption of an acknowledgment of the debt with an implied promise to pay the balance due on it. It was there said:

“The reason is that part payment is treated as an admission of the continued existence of the debt and an implied promise to pay the balance. It is equally well settled, however, that such promise is not to be implied where the part payment is accompanied bycircumstances or declarations of the debtor showing that it is not his intention to admit, by the payment, the continued existence of the debt and his obligation to pay the balance. Burr v. Williams, 20 Ark. 171; Chase v. Carney, 60 Ark. 491, 31 S. W. 43; and Joy v. Phelps, 65 Ark. 1, 45 S. W. 990.”

In the case of Gorman v. Pettus, 72 Ark. 76, 77 S. W. 907, it was held that, in the absence of rebutting evidence, proof of part payment of a debt raises a presumption that the debtor recognizes the existence of the debt and promises to pay the residue; and in the case of Less v. Arndt, 68 Ark. 399, 59 S. W. 763, it was held that part payments credited on a note by the creditor, with the debtor’s knowledge and consent, will stop the running of the statute of limitations, if there are no circumstances connected with the payment to indicate a contrary purpose.

In the case of Cox v. Phelps, 65 Ark. 1, 45 S. W. 990, the court quoted with approval the following statement of the law from the case of Taylor v. Foster, 132 Mass. 33: “The part payment must be under such circumstances as reasonably, and by fair implication, lead to the inference that the debtor intended to renew his promise of payment, and must have been made by the debtor in person, or by some one authorized by him to make a new promise in his behalf.” See also Alston v. State Bank, 9 Ark. 455; State Bank v. Wooddy, 10 Ark. 643; and numerous cases cited in the note to § 625 of the chapter on Limitations of Actions, 37 C. J., pages 1142 et seq.

In Wood on Limitations (4th ed.) vol. 1, page 601, it is said:

■ “A part payment of a debt, though made after the bar of limitations has attached, removes the bar and revives the debt, but the revival cannot .affect the rights of third persons attaching after the bar was complete and before the revival. Part payment on a debt operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of limitations, of any such lapse of time as may have occurred previous to the payment being made. A partial payment made on account of an existing debt takes the case out of the statute of limitations. A partial ■payment of a note takes the entire debt out of the running of the statute, and time is computed from the date of such payment. The voluntary part payment of a debt, made as such, is an acknowledgment of an existing obligation, and from such acknowledgment a promise to pay the balance may be implied. It is prima facie sufficient to revive the debt, although such prima facie case, may be rebutted by attendant circumstances inconsistent with such revivor.”

It is true the payment of the hundred dollars was not made in money, but it was not essential that it should be, as the satisfaction of the demands of Johnson against Davis and Rhodes was treated by all parties as a payment of the hundred dollars. Section 112, Wood on Limitations (4th ed.) vol. 1, page 558.

As an unconditional payment of a hundred dollars was shown by competent and undisputed evidence to have been made on the note, with no circumstances to rebut the presumption that the payment was intended as an admission of the debt evidenced by the note and an implied promise to pay the balance, and as the testimony supports the finding of the court below that the note has not been paid, the judgment must be affirmed, and it is so ordered.


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    Siegel, King & Company v. Penny & Baldwin.
    Opinion delivered February 20, 1928.
    1. Sales — breach of contract — remedies of buyer. — On breach of warranty that pipe purchased was in good serviceable condition, a buyer could either rescind on discovering the inferior quality of the pipe, or retain the pipe and sue on the warranty, or recoup damages when sued for the price.
    2. Sales — rescission—reasonable time. — Where pipe was purchased with express warranty that it was in good serviceable condition, and complaint was made within four weeks that it was unfit for the use intended, and suit was brought within three months after the purchase, a finding that the' rescission was made within reasonable time is warranted.
    8. Sales — tender on rescission. — Where pipe was purchased under express warranty of its fitness for use in the pipe line to be used in pumping water from a creek, the buyer could rescind for breach thereof without tendering the pipe at its place of purchase, where the tender would have been refused.
    4. Sales — place of tender on rescission. — Where pipe was purchased in Little Rock to be used in Searcy for a pipe line for pumping water from a creek, and where the test of the pipe could only be made by attempt to use it in Searcy, the buyer’s offer to return the pipe could be made where the test was made and breach of warranty discovered.
    5. Sales — testimony as to warranty. — -Where the buyer, who purchased pipe on an express written warranty that it was in good serviceable condition with no leaks, sued the sellers to recover the price paid, it was not error to admit the buyer’s testimony that he would not have purchased the pipe even after seeing it, if the sellers had not given him the express warranty.
    6. Sales — exclusion of testimony. — In a buyer’s action against sellers to recover the price paid for pipe on account of a breach of express warranty of serviceability, it was not error to exclude the sellers’ testimony that they had sold pipe to other customers, who made no complaint.
    7. Sales — exclusion of testimony. — In a buyer’s action against sellers to recover the price paid for pipe on account of a breach of express warranty of serviceability of second-hand pipe, it was not error to. exclude the sellers’ testimony that they did . not undertake to guarantee the pipe- to be as good to all intents and purposes as new pipe.
    8. Sales — breach of warranty — return of price. — Where there-was a breach of warranty that second-hand pipe purchased was in good condition, with no leaks, the buyer had a right to demand a return of the price.

      Appeal from Pulasld Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      E. G. Shoffner, for appellants.

      Brundidge & Neelly, for appellees.
   Smith, J.

On the 15th day of September, 1926, R. H. Baldwin, a member of a copartnership doing business as Penny & Baldwin, hereinafter réferred to as the plaintiffs, came from Searcy, where they were engaged in the performance of a paving’ contract, to appellants’ place of business in the city of Little Rock, in quest of secondhand pipe, to be used in running a water-line in connection with a paving project.

Baldwin testified that he saw Mr. Siegel, a member of appellant firm,, which is a copartnership doing business as Siegel, King & Company, hereinafter referred to as the defendants, at the defendants’ office in Little Rock. Baldwin advised Siegel that he wanted to buy enough pipe to furnish a pipe line a mile and a half or more in length, to be used in pumping water from a creek, and that sound pipe which did not leak would be required for the purpose. Siegel advised Baldwin that he could fill the order, and they went into defendants’ storage yard, where they saw several piles of pipe. No test of the pipe was made at the time.

A contract was entered into, which was evidenced by the following writing:

“Little Rook, Arkansas, September 15, 1926.
“It is hereby understood that Penny & Baldwin of Searcy, Arkansas, have this day bought of Siegel, King & Company of Little Rock, 10,560 feet of two-inch secondhand pipe, as inspected by Mr. R, II. Baldwin, at the price of $.09 per foot f. o. b. cars Little Rock.
“This pipe is to be good serviceable condition, with .no leaks from end to end.
‘ ‘ Terms: Sight draft bill of lading attached.
“Couplings are to be furnished.
“Prompt shipment.”

The pipe was loaded for shipment to Searcy, and a draft with a bill of lading attached was drawn on Penny & Baldwin, which was duly paid, and the pipe was delivered in Searcy about four days later.

When the pipe was received, Penny & Baldwin were engaged in laying brick, as called for by their paving contract, and it was three or four weeks before they required the use of the pipe line. When the construction of the pipe line was begun, it was found that fifty per cent, of the joints were worthless, and that the pipe leaked at and around the joints and between the joints so that the pipe was worthless for the purpose for which it was purchased. Such is the testimony on the part of the plaintiffs, but it was developed in the cross-examination of plaintiffs’ witnesses that only about nine hundred feet of the pipe was connected up, and it is insisted that the bad results obtained were due to the lack of skill on the part of the laborers who made the connections of the pipe joints.

Plaintiffs brought suit, and alleged that the pipe was worthless, and prayed judgment for $950.40, the' amount paid for the pipe, for $82.90 freight paid, and $50 for unloading and handling. The jury returned a verdict for $950.40, the amount of the purchase price, and from a judgment accordingly is this appeal.

Numerous errors are assigned for the reversal of the judgment, those requiring discussion being as follows : That there was no restitution or tender of the pipe within a reasonable time; that, when a tender was made, the pipe had deteriorated from exposure and could not be returned in the. condition in which it was when sold; that error was committed in refusing certain instructions; and in admitting and in excluding certain testi-' mony.

The first and most important question is, of course, whether there was a breach of the express warranty that the pipe was in good serviceable condition, with no leaks from end to end. The testimony summarized above supports the finding that there was a breach of the warranty, and the law applicable to that condition is restated in the case of Keith v. Fowler, 169 Ark. 176, 273 S. W. 706, by quoting- from the case of Courtesy Flower Co. v. Westbrook, 146 Ark. 17, 225 S. W. 3, as follows:

“ ‘The law on the subject is that, where chattels are purchased under express warranty as-to quality, the purchaser may rescind on discovering- the inferior quality of the article sold, but is not bound to dó so, and, on the contrary, may retain the articles purchased and sue on the warranty, or recoup the damages when sued for the price. In case, however, the contract is to deliver goods of a particular description or quality, without express warranty, and the purchaser accepts them after inspection and discovery of the inferior quality, or after having-had a fair opportunity to make such inspection, he waives the right to claim damages for defects or inferiority of the goods sold.’ ”

The instructions given by the court required the jury to find that the pipe was not serviceable and leaked before finding for the plaintiffs, but it is insisted that, even though the testimony supports the finding- that the pipe was not serviceable and leaked, there was no sufficient tender to the appellants of the pipe, nor was the tender made within a reasonable time.

As we have said, three or four weeks elapsed before any test of the pipe was made by attempting to use it, and, when this test was made, it was found that the pipe did not hold water, and complaint was made of that fact to defendants, who advised plaintiffs to take the pipe to a blacksmith or a plumber. Later plaintiffs took up with defendants the resale of the pipe, and defendants offered them $15 per ton for the pipe f. o. b. delivered at Little Rock. Siegel testified that the pipe would weigh about twenty tons, and that the offer for the pipe amounted to about $300, less the reloading and freight charges. The negotiations for a settlement were fruitless, and on December 21,1926, plaintiffs advised defendants that the entire contract would be rescinded and the pipe would be held in Searcy subject to the plaintiffs’ order, and Baldwin testified that the pipe was in as good condition as when shipped.

It thus appears that- three months elapsed between the date of the sale and the date of a definite announcement of an intent to rescind, and it is insisted that the court should have declared as a matter of law that this offer was not made within a reasonable time. The court told the .jury that plaintiffs could not rescind unless that offer was made within a reasonable time, and, the jury having found as a matter of fact that the offer was made within a reasonable time under all the circumstances, we are unwilling to hold to the contrary as a matter of law.

It is insisted that a rescission could not be effected without a tender of the article sold in Little Rook, but all the testimony shows that such a tender would have been refused if made, as the defendants have at all times insisted, and now. insist, that there was no breach of the warranty.

The test of the pipe which the warranty contemplated could only be made-by an attempt to use the pipe in Searcy, and, to make this test, plaintiffs were required to pay both freight and unloading charges, which items were not included in the jury’s verdict. The offer to return was made at the place where, in contemplation of the parties, the test was to be made, and where it was made, and where a breach of the warranty was discovered.

The instructions requested by defendants were to the effect that a tender of the pipe at Searcy, the place of the test, was not sufficient. But there would have been no expense of reloading and of return freight had there been no breach of the warranty; on the contrary, these items were the direct result of the breach of the warranty, and we think the court was correct in not requiring plaintiffs to incur these items of expense, especially so as the undisputed testimony shows no tender of any kind would have been accepted. 24 R. C. L., p. 326, chapter ‘ ‘ Sales, ’ ’ § 511.

The court permitted Baldwin to testify that he would not have purchased the pipe, even after seeing it, if defendants “had not given that written agreement,” and that the pipe was not suitable for the purpose for which he bought it, and that “he could not use it at all.”

We think there was no error in admitting this testimony, as it amounted only to saying that plaintiffs relied upon the warranty, as they had the right to do, and that there was a breach of the warranty — an essential thing to prove to sustain any recovery.

The court excluded testimony offered by defendants to the effect that they had sold pipe to other customers, who made no complaint, and that Siegel “did not undertake to guarantee the pipe to be as good, to all intents and purposes, as new pipe.”

There was no error in excluding the first mentioned testimony, as the pipe sold other customers may not have been of the same kind; there may have been no warranty, and those purchasers may have been damaged without complaining. As to the last-mentioned testimony, it may be said that it was not contended that the pipe should be-as good, to all intents and purposes, as new pipe. The warranty sued on was that the pipe was in good serviceable condition, with no leaks from end to end, and the jury found, under proper instructions, that there was a breach of this warranty, and, this being true, the plaintiffs had the right to demand a return of the purchase money.

As no error appears, the judgment must be affirmed, and it is so ordered.


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    Louisiana & Northwest Railroad Company v. William R. Moore Dry Goods Company.
    Opinion delivered February 20, 1928.
    1. Trial — instruction assuming admitted fact. — An instruction which assumed an admitted fact is not erroneous.

      2, Carriers — liability as warehoúsemaN. — An instruction in an action against a railroad as a warehouseman, which bases the right to recover on defendant’s want of common and reasonable diligence whereby the goods were lost, held proper.

      3. Carriers — finding as to loss of goods. — Testimony that the consignee refused to receive a shipment, that it was redelivered to the railroad company and lost after it was shown to be in possession of the railroad company, makes a prima facie case of negligence which was sufficient, in the absence of explanation, to support the verdict of a jury against the carrier.
    Appeal from Columbia Circuit Court; L. S. Britt, Judge;
    affirmed.

      Henry Stevens, for appellant.

      J. E. Hawkins, for appellee.
   Smith, J.

On or about November 5, 1922, Tullis & McClurkin, merchants at Magnolia, Arkansas, ordered a bill of dry goods from the William B. Moore Dry Goods Company, a corporation having its place of business in Memphis, Tennessee. The order was filled by ordering the goods shipped from Winston-Salem, North Carolina. After placing the order, Tullis & McClurkin canceled it, and the cancellation was accepted by the Moore Company, which company made an unsuccessful effort to stop the goods in transit as they passed through Memphis, and the shipment, consisting of a box weighing 259 pounds, went through to Magnolia.

■ John Curry is a drayman in Magnolia, and he had an arrangement with Tullis & McClurkin whereby he received from the railroad company all freight intended for Tullis & McClurkin, and delivered the same to them.

The box of goods in question had been shipped by prepaid freight, but the payment was twenty-nine cents short of the correct freight, and Curry paid this difference, and hauled the box to the store of Tullis & McClurkin, who refused to receive it. Curry then' returned the box to the railroad freigirt-room and delivered it to the person there in charge, and he testified that he later saw the box'in the freight-room, but that he did not haul it a second time to the store of Tullis & McClurkin. The box was never reshipped to the Moore Company by the railroad company, but was lost. Testimony was offered by the railroad company tending to show that Curry hauled the box from the freight-room a second time, and did not return it a second time. This was denied by Curry.

The complaint filed by the Moore Company against the railroad company, to recover the value of the box of goods, alleged an erroneous date as the. date of the receipt of the box by the railroad company at its station in Magnolia, but it is not questioned that' it was received by the railroad company at that station, and it is not claimed that the 'box was ever reshipped to the plaintiff.

An answer was filed by the railroad company, in which liability was denied upon the ground that it had fully discharged its contract of carriage by delivering the freight to the consignee named in the bill of lading.

There was a verdict and judgment for the plaintiff for the value of the goods, and the railroad company has appealed.

It is insisted by the appellant railroad company that this judgment should be reversed and the cause dismissed because it was not shown that the plaintiff was the owner of the freight, nor was it shown that the box was lost through its negligence.

The court instructed the jury that the plaintiff could not recover unless it was shown by the evidence, and the jury so found, that there was an understanding with Tullis & McClurldn whereby the goods were to be reshipped to the plaintiff, and it is insisted that instruction numbered 1, given at the request of the plaintiff, is in conflict with this instruction, in that it permitted a recovery by the plaintiff without imposing that requirement. It appears however that, even though the instructions are in conflict in this respect, the error was not prejudicial, for the reason that McClurldn, of the firm of Tullis & McClurldn, testified that his firm had canceled the order and had refused to accept the goods; that he saw the station agent, and obtained the copy of the freig’ht-bill, which he marked “Eefused,” and he sent a copy so marked, to the plaintiff, Moore Company, and that the railroad agent wrote the word “Eefused” on the original freight-bill. The goods belonged either to the consignor or the consignee, and, as the consignee expressly disclaimed any interest in or title thereto, there was no error in assuming — as plaintiff’s instruction numbered 1 did — that the goods belonged to the consignor, the plaintiff in the action. The title of the plaintiff was sufficiently proved, and was undisputed, and there was no error therefore in assuming this to be an undisputed fact, as plaintiff’s instruction numbered 1 did.

Plaintiff’s instruction numbered 1 further told the jury that, if the goods were delivered to and received by the railroad company, “then, while said goods were in possession of defendant in the depot at Magnolia, Arkansas, it was liable as a warehouseman for the care and custody of said goods, and, as such, was required to use common and reasonable diligence in caring for said goods, and if you further find that, from want of common and reasonable diligence, said goods were lost, then you should find for the plaintiff.”

There was no error in this instruction. Appellant insists that it was erroneous bécause it permits a recovery without requiring a finding that the goods were lost through the negligence of the defendant. But the instruction does require a finding that, “from want of common and reasonable diligence, said goods were lost.” The failure to exercise ordinary care and reasonable diligence would be negligence.

In the case of Yazoo & M. V. R. R. Co. v. Altman, 129 Ark. 358, 196 S. W. 122, it was held (to quote a syllabus): “The nondelivery by a warehouseman of'goods held by him, upon demand, in the absence of any explanation of their loss by fire or theft, or in any other manner consistent with the exercise of ordinary care over the goods, makes a prima facie-case against the warehouseman.”

Appellant insists that it fully discharged its liability as a warehouseman by delivering the goods to the consignee’s agent, but this question of fact was passed upon by the jury adversely to appellant’s contention, and that finding is conclusive.

' Upon this question the case is similar to and is controlled by the decision in the Altman ease, supra.

The testimony is sufficient to support the finding that the consignee refused to receive the box, and that it was redelivered to the railroad company, and, although no bill of lading was ever issued for the reshipment of the box, it was lost after it was shown to be in the possession of the railroad company, and, as the only explanation of the loss was denied by Curry, a prima facie case of negligence was made when the jury found that the loss of. the box was unexplained, which is sufficient to support the verdict of the jury, and the judgment is therefore affirmed.