text:
    Bowie v. State.
    (Criminal No. 3790)
    Opinion delivered May 16, 1932.

      Wills, Wills & McLees, for appellant.

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

The appellant, C. E. Bowie, was charged with the crime of murdering his wife by poison, and on a trial was found guilty of murder in the first degree, and his punishment fixed at life imprisonment in the State penitentiary. From that judgment he has prosecuted this appeal.

The excellent brief filed by -counsel for appellant has been of material aid to the court, and from the authorities therein cited, with others discovered by our own research, and after a careful examination of the record, it is our conclusion that the judgment of the trial court must be set aside, and the cause remanded for a new trial.

For that reason it becomes necessary to notice each one of the errors assigned, which we will proceed to do in the order in which they are set out in the brief for the appellant.

It is first contended that the court erred in overruling the petition praying for a dismissal of the grand jury, and also the motion to quash the indictment afterward returned by it. The grand jury was selected prior to the date of the alleged crime, and convened for an investigation of such crime at a time when the defendant was confined in the jail. The grounds of the objection to the panel were (a) that one of the jury commissioners was not qualified as such under the provisions of § 6344 of Crawford & Moses’ Digest. That statute provides that the jury commissioners shall possess “the qualifications prescribed for petit jurymen,” and it is insisted that the particular commissioner did not have these qualifications because of act 135 of the Acts of the General Assembly of 1931, he having served as a member of the regular panel of the petit jury at the March, 1930, term of the court and as a member of the regular grand jury at the March, 1981, term.

Act No. 135, supra, provides that “no citizen in this State shall be eligible to serve on either grand or petit jury oftener than one regular term of the circuit' court every two years.” It is not suggested that the commissioner was disqualified otherwise than by the provisions of the act above quoted. That act did not disqualify him from jury service, and he still had all of the qualifications of a petit jury within the meaning of § 6344, supra, but was rendered ineligible for service for a season. Therefore he was eligible to serve as jury commissioner, and the panel could not be challenged because he was one of the number who had selected it.

(b) Another reason assigned for the quashing of the panel was that, in selecting the jury, the commissioners disregarded § -6350 of 'Crawford & Moses’ Digest, which provides that the jury commission shall select 1 ‘ grand and alternate grand jurors from all parts of the county,” in that none of the grand jury selected were from the city of North Little Bock or other parts of the county except the city of Little Bock, from which city all the grand jurors came. We think this provision merely directory. The grand jury is an inquisitorial body for the county, and is charged with the duty of investigating all infractions of criminal laws occurring therein. Doubtless the provision above quoted was for the reason that a grand jury drawn from all parts of the county would have within itself a fair degree of information regarding conditions existing, and, be in a better position to determine the character of the witnesses brought before it, and the reliability of the information which it might receive.

It is next insisted that the court erred in overruling the demurrer filed to the indictment. Without setting out the indictment in full, it is sufficient to say that we are of the opinion that it set out the offense charged with sufficient certainty and particularity. It charged that the murder was committed by poisoning the deceased. The indictment need not allege the nature of the poisoning, the way in which it affected the victim, or the character of poison used, and the demurrer was properly overruled.

Mrs. Bowie died suddenly on the night of October 23, 1931. Her body was embalmed by a local undertaker and buried in a cemetery without the city. After the burial the two daughters of the deceased went to the house of the deceased’s sister and there remained. Their aunt questioned them about the circumstances of their mother’s death and made such representations to the officers as to induce them to arrest the defendant, and to cause .the body to be disinterred and an autopsy performed.

The testimony of the chemist who made an analysis of the contents of the viscera and that of physicians who attended the deceased at her death and who viewed the body thereafter tended to show that death was brought about by arsenical poisoning. The chemist testified that a slight trace of strychnine was also disclosed by his analysis. The testimony of the two daughters, the oldest of whom was about 17 years of age, and the other about 15, was to the effect that the defendant, their father, had frequently cursed and threatened their mother and at one time, when he was whipping the older of the two with a sash cord, he struck the deceased with it; that on several occasions he had been drunk and threatened to kill his wife “if she came to bed.”

The defendant’s sister-in-law testified as to the conduct of the defendant with a woman other than his wife, indicating an illicit relationship existing between the two and that she took the defendant to task about his conduct and told the wife about what she claimed to have discovered.

It was in testimony that a number of poisonous substances were in the house where the defendant and his wife resided, both at the time and before the wife died, and some paris green, nux vomica, strychnine and bi-chloride of mercury tablets were found on the premises. The paris green was kept in an outbuilding and the strychnine in a trunk.

The older of the two daughters, Veenie Bowie, related that her father came home on the evening of her mother’s death between six and seven o’clock. He was macT and threatened to whip her (the witness) because supper had not been prepared; that, after they had partaken of the evening meal, and while her father and mother were in the act of retiring, her mother jumped and screamed and ran out into the yard choking and exclaiming she was dying. Witness was directed by her father to procure a doctor, and, with her sister, left for that purpose. When they returned she found her mother on the bed and her father fanning her. The other daughter stated that both her parents had gone to bed when her mother became sick and jumped up and ran out into the yard and her father choked her mother and bent her backward on the automobile. In this statement she was not corroborated by the older sister. That she and her sister left to get a doctor; that she had heard her father and mother discussing cattle stealing and arson, and had heard her mother object and ask her father not to do it. Neither of the daughters, nor any other member of the family saw the defendant give his wife anything to eat or drink. The younger daughter testified that when her father came home he threatened to kill her mother if she didn’t have supper cooked the next time he came. The older daughter stated that, after the mother’s death, she prepared some chicleen and dumplings for her father; that he was ordinarily very fond of this, but that he didn’t take any at that time, and that when some of these were taken to the woods as a lunch, they were brought back uneaten, and the younger girl said they turned green.

•Some remarks were said to have been made by the defendant in the presence of his daughters. One remark, made two or three days after the death of the mother, was: “She knows and God knows I didn’t poison her.” Another remark said to have been made by defendant was that he wished he could call back 30 minutes.

The other circumstances relied on were found in the testimony of the two daughters, the two sisters, and the brother-in-law of the deceased, and one or two other witnesses, to the effect that the defendant expressed a desire that his wife’s body be not cut upon, and that he had her buried in a cemetery at Jacksonville where they had no relative interred, although the brother-in-law had offered the defendant a lot in another cemetery in which to bury the deceased. Also that, in the opinion of one of the deceased’s sisters, the defendant did not appear to grieve much over the death of his wife, and this was one of the things which aroused her suspicion. According to the testimony of the older daughter, her father got up early one morning and built a fire and threw a snuff box in the stove; that he didn’t ordinarily build a fire, and that she got the snuff box and took it to her aunt, who gave it, with other things, to the officers.

The above relates substantially all of the circumstances testified to on which- the jury arrived at their verdict.

On the part of the defense, it was shown by near neighbors who had visited in the home of the defendant and his wife, and who lived very nearby, that they never heard or observed any threats or abusive conduct on the part of the husband to the wife other than the usual marital jars that would, as they said, naturally occur, and that when Mrs. Bowie died the defendant seemed to be much affected and to sincerely mourn her death.

Two physicians testified (one who had had occasion to observe 25 or 30 cases of arsenical poisoning) to whom the symptoms of the deceased were described, stated that it was their opinion that the symptoms - were not such as would be brought about by acute arsenical poisoning, and that about twelve hours was the shortest time in which one would ordinarily die from such poisoning. They also testified that arsenic was sometimes found in the human system, and that the amount of arsenic reported by the chemist to have been found would not necessarily indicate death due to arsenical poisoning, and that arsenic might get into the system without oral administration. •

Other witnesses testified to circumstances tending to show malice and prejudice on the part of the two daughters and the sisters of the deceased, and there was other testimony which tended to impeach the credibility of these witnesses. All the testimony indicates the family were very poor and of a low order.

The defendant denied knowing that any poison was on the premises. He stated that he had bought some paris green about a year before to put on his potato plants and some nux vomica to feed his chickens, but when his wife died he did not know where it then was. It was shown by others that the bichloride of mercury tablets were given to Mrs. Bowie by her brother-in-law. The defendant testified that he did not administer any poison of any kind to his wife, and denied any desire to destroy her. The deceased and the defendant had married when they were quite young. At the time of her death she was about 36 years of age and the mother of seven children by the defendant, and was pregnant with the eighth child, and had had a miscarriage once about eig’hteen months previously. It was shown by a number of witnesses that, during the times she was pregnant, her body would become swollen, especially her face and extremities, and she complained a great deal on account of her physical infirmities and her lot in life. She was subject to choking spells and would suffer much on these occasions.

The record, as we view it, presents a doubtful question as to the cause of the death of Mrs. Bowie. The circumstances which tend to establish, first, that her death was due to arsenical poisoning, and, second, that if so, the poison was administered by the defendant, are of uncertain value and wholly circumstantial in their character. It is a rule, however, of universal application, that circumstantial evidence is sufficient upon which to base a verdict of guilt, as experience and observed facts frequently establish a connection between proved facts and the fact sought to be proved that is as convincing in its nature as the most positive and direct testimony. Indeed, in many cases where the circumstances are testified to by several unprejudiced witnesses from different sources, the chain of circumstances is less likely to be the result of perjured testimony than even the direct testimony of witnesses, and often is more cogent. This character of evidence, however, has certain disadvantages. A jury has not only to weigh the evidence and the credibility of the witnesses, but to draw just conclusions from the circumstances in proof, and in doing so it may, by want of due deliberation, make hasty and false deductions and be swayed in its judgment by prejudice or partiality. This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they may be, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime, or that no crime has been committed at all. Therefore it becomes important that every fact which might reasonably shed light on the issues investigated should be received and given proper consideration,

It will be remembered that Mrs. Bowie died suddenly, and, while her extremities were swollen, and she suffered much discomfort, she had given no evidence of being seriously ill at any short time before her death. The defendant denied any voluntary act upon his part which was the occasion of his wife’s demise, and offered to prove by a number of witnesses that at times she became despondent because of her frequent and manifold ills, and that she had, on numbers of occasions and to different persons, expressed a dissatisfaction with her life and an intention to end it; that she had often said, over a period of six months preceding her death, and to several persons, in effect, “that she had suffered about all a human could and that for very little she would end it all.”

The trial court, on objections of the State, ruled this testimony incompetent, and refused to admit it, to which ruling timely exceptions were saved, which were preserved in the motion for a new trial and are now urged as error. The question presented has never been directly passed upon by this court.

In support of the ruling of the trial court, the appellee offers a declaration found in Michie on Homicide, at page 810, and, while admitting that the authorities differ, contends that the better view supports the text, which is that: “Declaration of the deceased made at different times before his death and prior to his last sickness that he intended to take his own life not accompanied by an act of the deceased which they might explain, being mere hearsay, are not admissible on the part of the defense. This is undoubtedly the correct rule * *

The precise question has not before been before us, but we do not agree with the contention of the appellee, nor do we subscribe to the doctrine of the text, which we think illogical and with but little support in the adjudicated cases. The author, in support of the declaration made, refers to but one case, Nordgren v. People, 211 Ill. 425, 71 N. E. 1042, and that case does not warrant the declaration of the text. There the defendant was charged with having caused the death of his wife by giving her whiskey containing strychnine or some other kind of poison. She died suddenly and under circumstances from which it might have been deduced that she had been poisoned with strychnine. The record there; as here, was silent as to the manner in which the poison was given to, or taken by, the deceased. The defendant denied the charge and offered to prove by a number of witnesses, whose affidavits were taken and read on motion for a new trial, that for a long time before her death she had led a life of drunkenness, and while on sprees would announce that she was tired of life and that she had poison enough in her possession to kill a whole family. The court held that these affidavits did not set forth newly discovered evidence, nor were they cumulative or impeaching in character, but embodied the substance of what the defendant offered to prove but which he was not permitted to do by the trial court. It was held that the trial judge erred in refusing to allow the evidence to go to the jury, and the case was reversed and remanded.

' In the case of Seibert v. People, 143 Ill. 591, 32 N. E. 431, the Supreme Court had decided that the declaration of the deceased threatening to commit suicide was incompetent as being mere hearsay, but it would seem that the case of Nordgren v. People, supra, which is a later case, while not mentioning the Seibert case, has in effect overruled it.

At one time the rule, as contended for by the appellee, and as announced in the Seibert case, seems to have been followed by the Supreme Court of Missouri in the case of State v. Fitzgerald, 130 Mo. 407, 32 S. W. 1113, but that case and other cases which seem to hold to the same doctrine were expressly overruled in the case of State v. Ilgenfritz, 263 Mo. 615, 173 S. W. 1041. Indeed, the only cases we have been able to find which seem to support the rule, contended for are decisions of the Supreme Court of Colorado, Ausmus & Moon v. People, 47 Colo. 167, 107 Pac. 204, 19 Ann. Cas. 491, and Moya v. People, 79 Colo. 1004, 244 Pac. 69, but in a later case those cases are questioned. In Massie v. People, 82 Colo. 205, 258 Pac. 226, the court, after calling attention to the textwriters and decisions holding contrary to the cases under review, said: “We are therefore asked to re-examine the question and reverse our former holding. We would not shirk the re-examination or hesitate to correct the error should such clearly appear, even though convinced of the guilt of the accused and the sufficiency of the evidence to support the verdict, were this defendant in position to make the demand, hut we think he is not. ” It was shown that the reason that the defendant was not in a position to make the demand was because, when questions were propounded to the witnesses relative to the declarations of the deceased evidencing a suicidal intent, the expected answers were not given, and for that reason the court refused to review its prior decision.

The contrary, and we think the better view, is stated in the 2d ed. of Mr. Wigmore’s treatise on the law of Evidence in vol. 1, §§ 143 and 144 of chap. 7, as follows: Section 143. “If the deceased, with whose death the defendant is charged, committed suicide, obviously the defendant could not have killed the deceased. There ought to be no doubt about the admissibility of plan or desires to commit suicide, even where no other evidence of its probability or feasibility is offered. Its improbability or nonfeasibility should be a matter for rebuttal, and should not exclude the evidence of its probability. That the evidence may be manufactured is no reason for its exclusion for it may also not be manufactured, and if not it is most cogent. The distance in time ought not to exclude the evidence of plans; for it does not exclude evidence of a defendant’s threats. That the deceased’s hearsay statements of plan are admissible, under an exception to the hearsay rule, is plain.”

Section 144. “For the same reason, an emotion or feeling impelling to suicide is relevant; and facts tending to show the existence of such an emotion * * * should be received to show it. Contrary facts tending to show emotions adverse to suicide would be equally admissible. ’ ’

The text is supported by decisions of many eminent courts. Leading these cases is that of Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 960. The evidence of declarations of the deceased made prior to death which would indicate a suicidal trend of mind have been held to be admissible in the following cases: Ottis v. State, 160 Ala. 29, 49 So. 810; Crow v. State, 89 Tex. Cr. 149, 230 S. W. 148; State v. Beeson, 155 Ia. 355, 136 N. W. 317; State v. Carter, 100 Ia. 510, 69 N. W. 880; Nordgren v. People, 211 Ill. 425, 71 N. E. 1042; Hull v. State, 132 Ind. 317, 31 N. E. 536; State v. Ilgenfritz, 263 Mo. 615, 173 S. W. 1041; People v. Gehmele, (N. Y.) 1 Sheldon (N. Y.) 251; Blackburn v. State, 23 Ohio St. 146; Epperson v. Commonwealth, 227 Ky. 404, 13 S. W. (2d) 247; Sharp v. State, 115 Neb. 737, 214 N. W. 643; State v. Prytle, 191 N. C. 698, 132 S. E. 785; State v. Keely, 77 Conn. 266, 58 Atl. 705.

The case presented by the record here emphasizes the importance of the proper application of that rule of evidence, that all facts which may shed light on the issues investigated may be received and given proper consideration. Arnold v. State, 179 Ark. 1072, 20 S. W. (2d) 189.

The testimony raises a doubtful question as to whether the deceased in fact died from arsenical poisoning, and, if she did, whether the poison was administered by the appellant or by her own hand. Therefore any declarations she might have made reflecting her mental condition induced by her physical condition and sordid surroundings, or from any other cause, indicating the thought of self-destruction, were material to the defense offered, and their exclusion was prejudicial to the rights of the defendant, and the court erred in excluding them.

Veenie Bowie, the daughter of the deceased and one of the principal witnesses introduced by the State, was asked if her mother did not make inquiry of the witness on the day of her death as to the location of the paris green. The witness answered in the negative. She was further asked if she had not told a neighbor that her mother had made such inquiry on the day she died and answered in the negative. This testimony was material as indicating a suicidal intention, and the court erred in refusing to permit the neighbor^ to testify that the girl had in fact made such declaration to her a short time after the death of the deceased'. The daughter evidenced an unfriendly animus toward the defendant, and this testimony was competent as affecting her credibility.-

It is lastly urged that the cross-examination of the defendant was improper in that the defendant, while on the stand in his own defense, was questioned and required to answer relative to the commission of other unconnected crimes and acts not connected with the offense for which he was being tried.

We pretermit any discussion of this alleged error for doubtless the court on the trial anew will see that the examination be kept within due bounds.

For the errors indicated, the "judgment of the trial court is reversed, and the cause remanded for new trial.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    McCutchen v. Siloam Springs.
    4-2509
    Opinion delivered May 23, 1932.

      A. L. Smith, for appellants.

      Tom Williams, Williams ■& Williams and James B. McDonough, Jr., for appellees.
   Humphreys, J.

Appellants, resident citizens and taxpayers of the city of Siloam Springs, Arkansas, instituted this suit on the 24th day of August, 1931, in the chancery court of Benton County to enjoin appellees from carrying out a contract entered into on the 6th day of August, 1931, between said city, with the approval of the board of improvement of Electric Light District No. 1, and the Trans-American Construction Company and Seymour 'Corporation as guarantor, to construct a powerhouse and install all necessary equipment therein, including Diesel engines to generate power to operate the light plant, water plant, and current for other purposes, upon the alleged ground that said contract is null and void because made by said city without statutory authority, and in contravention of amendments Nos. 10 and 13 to the Constitution of Arkansas, and because same is improvident.

The material allegations of the complaint were denied, and the cause was submitted upon the issues joined and evidence introduced, resulting in a finding and decree that the contract is valid and in a dismissal of appellants ’ complaint, from which is. this appeal.

The record made in the case is voluminous, and to attempt a detailed statement of the facts would unduly extend this opinion. The substance of the facts necessary to a determination of the issues involved is as follows: Immediately after the electric light plant was constructed, in 1898, under a bond issue by Electric Light District No. 1, it was turned over to the city council for operation and maintenance, under § 5739 of Crawford & Moses’ Digest, which is as follows: “In case of the construction of waterworks or gas or electric light works by an improvement district or districts, the city or town council, after such works are constructed, shall have full power and authority to operate and maintain the same, instead of the improvement district commissioners, and said city or town council may supply water and light to private consumers and make and collect uniform charges for such service, and apply the income therefrom to the payment of operating expenses and maintenance of such works.”

The bonds were all paid long before the execution of the contract sought to be enjoined. The electric light system consisted of machinery and equipment in the powerhouse, twenty-five miles of poles and wires, transformers, meters, and much other apparatus necessary to a going light and power system. During the operation of the system by the council, something’ like $30,000 was expended out of the earnings of the system for new machinery and equipment in the maintenance thereof. After being used for about thirty years, the machinery and equipment in the powerhouse, in the opinion of competent experts, had become inefficient, uneconomical, obsolete, and hazardous. After investigating many modern powerhouses and equipment, the council concluded to install Diesel engines and other modern equipment in a new powerhouse on a small tract of land purchased by the city. In .keeping with this purpose, the council advertised for bids, and let a contract for the construction of the powerhouse and installation of Diesel engines and other equipment to the Trans-American Construction Company, the lowest bidder, for $80,425, in monthly payments of $1,218 each, covering a period of about five and one-half years with no interest on the evidences of indebtedness or pledge orders until the maturity of each. It was also provided that, upon default in the payment of any pledge order, the Trans-American Construction Company might repossess the particular property sold or might operate the plant as the agent of the city until the pledge orders were paid out of the net earnings of said system. It was also provided that the city was not obligated to pay for the machinery or equipment out of any fund except the net earnings from said light plant.

A reversal of the decree is urged upon the ground that “operation and maintenance” used in the section of the statute quoted did not confer authority on the city council, acting in its capacity as trustee for Electric Light District No. 1, to abandon the old powerhouse and the old machinery and equipment therein and construct a new powerhouse on another tract of land and install therein modern, efficient, and more economical machinery and equipment. Appellant interprets the word “maintenance,” as used in the statute, as synonymous with the word “repair,” and contends that “repair” does not mean to reconstruct the system. This court, in construing the statute in question in the case of Arkansas Power & Light Company v. Paragould, 146 Ark. 1, 225 S. W. 435, gave the word “maintenance” a much broader meaning than the word “repair” by saying that the purpose and meaning of the statute was to authorize the council to keep the system up to an established standard, and, in its sound discretion, to determine the way in which the standard of efficiency should be maintained. In the recent case of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 44, in construing the scope of the word “maintenance” in a similar statute, it was ruled that authority was conferred on the county court to purchase a tractor on the theory that it was impossible to maintain highways without machinery.

A reversal of the decree is also urged on the ground that the contract is an improvident one. The chancellor found that the improvement was necessary, and that the contract was awarded to the lowest bidder for a fair price upon reasonable terms, and that it was in no sense improvident. After a careful reading and analysis of the testimony, we think his finding is supported by the weight of the evidence.

A reversal of the decree is also urged upon the ground that the contract is prohibited by constitutional amendments Nos. 10 and 13.

Amendment No. 10 forbids cities from making contracts in excess of their revenue for the current year. The city incurred no liability payable out of its revenues on account of the instant contract. The contract specifically provides to the contrary. Under the act for operation of the system by the council, none of the proceeds therefrom became the city’s funds until expenses of operation and maintenance had been fully paid. The consideration for this contract or the purchase price' must and can only be paid under its terms as maintenance charges out of the gross receipts derived from the operation of the system after operating expenses have been paid, and not out of funds belonging to the city; hence the amendment referred to is not applicable to the instant contract, and not inhibited by it under the ruling announced in the case of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 444.

Amendment No. 13 provides the manner in which cities may purchase, extend, improve, enlarge, build or construct light plants and distributing systems. According to the amendment, it must do so by a bond issue and special assessment after a majority of the qualified electors shall vote in favor of the project. Appellants contend that, since the adoption of the amendment, this is the exclusive method by which a light system may be acquired for or by a city. This section can only apply where a city acquires or already owns a plant in its own name, and not to a system which it has taken over for the purposes of operation and maintenance only in trust for an improvement district.

No error appearing, the decree is affirmed.


author: Mehaeey, J.

text:
    Tallman v. Board Commissioners Northern Road Improvement District of Arkansas County.
    4-2560
    Opinion delivered May 23, 1932.

      George C. Lewis, for appellant.

      Ingram Moher, for appellee.
   Mehaeey, J.

On May 9, 1931, the commissioners of Northern Road Improvement District of Arkansas County filed suit to enforce the payment of delinquent taxes alleged to be due the said district. To the complaint was attached an exhibit which was said to be a record of delinquent lands in said district, returned delinquent on June 9, 1930, for the nonpayment of taxes due thereon for the year 1929.

This record was properly certified to by the sheriff and collector of Arkansas County. The clerk of the chaneery court certified that the list was filed in his office August 29, 1930.

Warning’ order was published, and a number of the landowners of the district intervened, and interposed the defense that the suit was not brought within three years after said taxes became delinquent. There was a number of interveners, but the defenses interposed were identical.

Answers were filed to all the interventions, alleging that the lands in controversy stood forfeited to the State, and the district’s right to proceed to collect the taxes was suspended because the lands had been sold to the State, and therefore the three years’ statute did not apply.

There is no controversy about the facts, but only questions of law are involved. There appears to be some confusion and uncertainty about the law with reference to collection of improvement district taxes, and for that reason the law should be stated clearly, so that any doubt or uncertainty may be removed.

The Northern Road Improvement District of Arkansas County was created by act 247 of the Acts of 1919. Section 6 of this act provides for the assessment of benefits, and § 7 provides that the assessment shall be filed with the county clerk, and the secretary of the board shall give notice by publication for two weeks in a newspaper, published and having a bona fide circulation in the city of Stuttgart.

Said notice must advise the landowners of the filing of the assessment, and that it is open for inspection, and fix the time when they may be heard by the commissioners. The act permits a reassessment not oftener than once a year.

Section 13 of the act fixes the time when the assessments are payable between the first Monday in January and the 10th of April in each year. The section also provides that the collector shall not embrace such taxes in the taxes for which he shall sell the lands, but he shall report such delinquencies to the board of commissioners of said district, which shall add to the amount of tax a penalty of '25 per cent., and said board of commissioners shall enforce the collection by chancery proceedings in the manner provided in §§ 23 and 24 of act 279 of the Acts of 1909. The owner has five years in which to redeem from said sale.

Appellee concedes that, if the improvement district could proceed to enforce or foreclose its lien before the assessments are formally returned as delinquent, then the three years’ statute of limitations has run, and this case should be reversed.

Section 6695 of Crawford & Moses’ Digest provides that the words “forfeited” and “forfeiture” shall be construed to mean and apply to lands which were sold for nonpayment of taxes according to law, etc.

This court has said: “Of course, the forfeiture to the State of lands for general taxes necessarily suspends the enforcement of the special tax lien as long as the title remains in the State, but, as the lien, under the terms of the statute, is not extinguished, and continues until the special taxes are paid, the same can be enforced when the land goes back into private ownership. This construction of the statute gives full recognition to the State’s paramount right of taxation, and in nowise detracts from the dignity and power of the State as against subordinate governmental agencies.” Turley v. St. Francis County Road Imp. Dist. No. 4, 171 Ark. 939, 287 S. W. 196.

This court, in a later case, said: “Sale to the State of lands for nonpayment of general taxes suspends the enforcement of the special road tax lien so long as the title remains in the State; but such lien, under Crawford & Moses’ Digest, § 5433, may be enforced when the land goes back to private ownership.” Wyatt v. Beard, 179 Ark. 305, 15 S. W. (2d) 990.

In the case above cited the sales to the State were valid. These cases were referred to and the rule announced by them approved in Hopper v. Chandler, 183 Ark. 469, 36 S. W. (2d) 398.

The appellant suggests that the court, in its former decision, overlooked § 2 of act 261 of the Acts of 1925. That act, however, applies only to road improvement districts which embrace lands in five or more counties, and therefore has no application here.

The lien for improvement district assessments shall be in the manner provided in §§ 23 and '24 of act 279 of the Acts of 1909. These sections provide that the assessments shall be payable between the first Monday in January and the 10th day of April in each year. The act then provides that the collector shall report delinquencies to the board of commissioners; that they shall add the penalty, and enforce the collection by a suit in the chancery court.

The question is, when did the lands become delinquent? There can be no doubt that the assessments are payable between the first Monday in January and the 10th day of April.

Section 4 of act 534 of the Acts of 1921 is as follows: “When the board of commissioners, or any one authorized by law to file suit for the collection of such delinquent taxes, desires to commence said suit, they shall obtain a certified copy of said list from said clerk, which shall be filed with the complaint and taken as a part thereof, and the clerk, for making said list, shall be entitled to ten cents per tract, which shall be taxed as costs in said suit. No suit for the collection of such delinquent taxes shall be brought after three years from date same became delinquent.”

It appears from that act that, whether the taxes have been extended or whether the collector has made any report, the board of commissioners, if they desire to commence suit, shall obtain a certified copy of the list from said clerk, and file this list with the complaint, and it will be observed that under said section no suit shall be brought after three years from the date same became delinquent. When the law fixes a day for the payment of taxes, and the taxpayer fails to pay on or before that day, he is delinquent. These acts themselves indicate that, because they require the sheriff to report the delinquency. Unless they were delinquent, there would be no delinquency to report, and a delinquent tax means a tax overdue and unpaid.

‘ ‘ To constitute a legally delinquent tax on land, three things are necessary: First, that the land is subject to taxation; second, that a tax authorized by law has been levied on it in the manner provided by law; third, that the tax remains unpaid after the time appointed by law for its payment. To make out a tax delinquent, each of these things must be shown — each is as essential as either of the others.” Chauncy v. Wass, 35 Minn. 1, 30 N. W. Rep. 826; 18 C. J. 475.

It seems clear that when the statute fixes the 10th of April as the last day for payment, and provides that the commissioners may secure the list from the clerk before bringing suit, the intention is to authorize suit to be brought at any time within three years after the failure to pay at the time the taxes are due.

We have heretofore held that when lands have been sold to the State, the lien for assessments was suspended, and could be enforced after the lands went back to private ownership. Of course, this meant valid sale. A void sale would not suspend the statute because if void, it is a nullity, binding on no one. But if the collection of improvement district assessments Is suspended by a valid sale to the State and not by a void sale, the commissioners would be required to determine in each instance whether a tax sale was valid or void. This, in many instances, might require expensive lawsuits because, in many instances, no one could say whether the sale was void or not.

We therefore hold that, when taxes are not paid at the time fixed by law, they are delinquent, and the commissioners may secure the certified list from the clerk and proceed to enforce collection. If the lands have been sold to the State, the sale for improvement district taxes will be subject to the paramount right of the State. There can then be no confusion or doubt about the time and manner of inforcing liens for assessments in improvement districts.

When all the acts are considered together, it seems clear that this was the intention of the Legislature.

In this case, three years having elapsed after the taxes became delinquent before suit was brought, such suit was barred by the three years statute of limitations.

The decree of the chancery court is therefore reversed, and the cause remanded with directions to dismiss the complaint.


author: McHaney, J.

text:
    Taylor v. Moose.
    4-2530
    Opinion delivered May 23, 1932.

      Edward Gordon, for appellant.

      E. A. Williams, for appellee.
   McHaney, J.

The only question presented for our determination by this appeal is the validity of a contract between appellant Bank Commissioner and appellant Gordon by which the latter was employed as attorney to represent the former in the liquidation of the People’s Bank & Trust Company of Morrilton, insolvent, at a stipulated fee per month as follows: “$200 per month for the first six months following the closing of said bank; $225 per month for the next six months; $150 per month for the second year; and $100 per month for the third year. This contract was presented to the chancery court for its approval on the petition of appellants and the remonstrance of certain officers and depositors of said bank, and the court declined to approve same, and held that proper fees would be allowed said attorney from time to time when it was definitely determined what service had been rendered. It appeared in evidence that approximately 90 per cent, of the bank’s bills receivable had been hypothecated with other banks to secure loans, and that the court had made a consent order that the expense of collecting such collateral held by other banks must be paid out of same, and should never be borne by the 10 per cent, of such bills receivable as remained in the bank unpledged which latter amounted to about $46,000. The court found that said contract was improvident and declined to approve it.

We think the court was correct in so holding. The Bank Commissioner is without power to fix attorney’s fees by agreement with attorneys in the liquidation of insolvent banks, and his agreement in this regard is not binding on the court, but is suggestive merely. Section 723, Crawford & Moses’ Digest, provides that “the compensation of the special deputy commissioner, counsel, employees and assistants, and all expenses of liquidation shall be fixed by the commissioner, subject to the approval of the chancery court on notice to the officers of such bank,” etc. He is given the power to appoint (§ 5, act 627 of 1923), but may fix compensation subject to the approval of the court. The contract in question was, therefore, not valid and binding without the approval of the court, a matter resting in its sound discretion.

Furthermore we think the court did not abuse its discretion in refusing its approval. In the very nature of things, no one could tell in advance the amount of work and skill that would be required of counsel in the liquidation of this bank. Practically all its notes receivable were held by other banks in which the insolvent bank had a possible equity, of doubtful value, as were also the unpledged notes. No doubt litigation would result in some matters, but the extent and nature of it was doubtful. The court would undoubtedly be in a better position to allow compensation as the work progressed. As we said in Shackleford v. Arkansas Baptist College, 181 Ark. 363, 26 S. W. (2d) 124: “Neither the trial court, nor this court on appeal, is bound by the testimony of appellant and his expert witnesses in determining the value of his services.” We there further said: “In Jacoway v. Hall, 67 Ark. 345, 55 S. W. 12, it was held that the judge could act upon his own knowledge in fixing reasonable compensation, and that this court would not overturn his finding unless clearly erroneous.” See also other cases cited in the Shackleford case.

The matter of fixing compensation for counsel finally rests in the sound discretion of the trial court, and we are of the opinion that the court did not abuse its discretion.

Affirmed.


author: Butler, J.

text:
    Commonwealth Building and Loan Association v. Martin.
    4-2449
    Opinion delivered May 23, 1932.

      Powell, Smead *§> Knox and G. E. Wright, for appellant.

      Coulter & Coulter, for appellee.
   Butler, J.

This cause was submitted to the chancellor on the complaint of plaintiff, Dollie Mae Martin, the answers of L. A. Reed, the Progressive Building & Loan Association, and of the appellant, together with the exhibits thereto and the following stipulation:

“Itis agreed by and between the parties hereto and their respective counsel of record that this cause may be submitted to the court on the following agreed statement of facts covering all the issues except as to the question of agency on the part of L. A. Reed for Progressive Building & Loan Association.

“On July 11, 1929, E. L. Kendrick, who is the common source of title to lot 6 of block 4 of Triangle Subdivision to the city of El Dorado, Union County, Arkansas, was the owner of said property. 'On said date he executed a mortgage to Progressive Building & Loan Association conveying to the said association said property to secure the payment of an indebtedness in the sum of $2,000, with interest at the rate of 9 per cent, per annum, to be repaid in monthly installments. Thereafter, on August 6, 1930, Commonwealth Building & Loan Association obtained a judgment against the said Kendrick in the Union Chancery Court in the sum of $2,480.17, which judgment constituted a mortgage lien against other property held in the name of Kendrick, but only a general judgment against the property in controversy. The property against which the judgment constituted a mortgage lien was sold on September 9, 1930, for the sum of $1,250, which amount was credited on the judgment against Kendrick, the remaining portion thereof, together with accrued interest thereon, remaining unpaid. Thereafter, on October 22, 1930, Kendrick conveyed the property here in dispute to L. A. Reed for the sum of $10 and the assumption of the Progressive Building & Loan Association’s mortgage indebtedness. Thereafter, on December 1, 1930, Reed conveyed the property in controversy to Dollie Mae Martin by deed of general warranty, in consideration of the sum of $400 and the assumption of the Progressive Building & Loan Association’s mortgage indebtedness. Thereafter, on February 3,1931, Mrs. Martin paid to the Progressive Building & Loan Association the amount due under its mortgage, and said association entered a full satisfaction of the mortgage from Kendrick to it. Mrs. Martin borrowed $1,000 of the money which she paid to the «association, and executed her mortgage covering the property in controversy to secure said sum, and paid the balance from her own personal funds; but the mortgage from Mrs. Martin has never been filed for record.

“The instruments herein referred to may be read into the record in the trial of this cause before the court.

“The Commonwealth Building & Loan Association contends that its lien is now a first lien against the property in controversy, the mortgage indebtedness having been satisfied. Mrs. Martin concedes that the association can redeem the property by repaying her the amount expended in paying the mortgage of the Progressive Building & Loan Association, but denies its right to proceed against the property free and clear of the mortgage debt. ’ ’

In addition to the facts set out in the foregoing stipulation, plaintiff alleged that at the date of the execution by Kendrick of his deed to Reed and on the date of the deed from Reed to her the judgment in favor of the appellant against Kendrick was outstanding and unsatisfied ; that because of this the covenant of warranty in her deed was breached. She further alleged that Reed, her grantor, was the agent of the Progressive Building & Loan Association, and that the deed taken by him from Kendrick was in satisfaction of the mortgage of his principal. The complaint concluded with the prayer that appellant be required to assert any interest it claimed in the property, that her grantors be required to defend against any claim of appellant, and with a prayer for judgment against the defendants* Kendrick and Reed, for any indebtedness which might be established “by said Commonwealth Building & Loan Association against the property herein described and for all further and proper relief.”

The court found that the deed from Reed to the appellee contained a covenant of warranty against incumbrances, and that it did not mention the judgment lien of the Commonwealth Building & Loan Association, and therefore, “upon the execution and delivery of the deed, said covenant of warranty was broken, and that plaintiff is thereby entitled to recover of and from the said L. A. Reed and Lillian Reed, his wife, nominal damages in the sum of $1, together with all costs in this cause including a reasonable attorney’s fee, which the court finds to be the sum of $100.” The court further found that the appellee had paid the mortgage indebtedness due the Progressive Building & Loan Association which had entered a full satisfaction on the records, and thereby the appellee was subrogated to the rights of said association, but that it (appellant) might redeem said property by paying to appellee the amount of indebtedness due the Progressive Building & Loan Association which she had discharged. Judgment was rendered in accordance with these findings, and the complaint dismissed as to the defendant, Progressive Building & Loan Association.

L. A. Reed has not appealed from that decree, the appeal here being taken and prosecuted by the appellant, Commonwealth Building & Loan Association, which makes two contentions for reversal, as follows-:

1. Appellee is bound by her allegation that Reed was agent of Progressive Building & Loan Association, and is therefore precluded from any relief as against appellant.

2. Appellee has neither pleaded nor proved that she lacked knowledge of appellant’s lien at the time she bought the property in question, and is therefore precluded from any relief as against appellant.

. The appellant argues that by appellee’s own allegation there was no mortgage extant when she acquired the property from Reed, but that the mortgage was discharged and satisfied by the conveyance from Kendrick to Reed, who was acting as agent for the Progressive Building & Loan Association, and that the deed was taken in discharge of the mortgage debt. It contends that these allegations were admitted by it in its answer, and that appellee could not take a position contradictory to the allegations of her complaint, as such had not been denied.

We do not agree with the contention made for the reason that the allegations as to the agency of Reed, and that he took the conveyance from. Kendrick to himself as agent of the Progressive Building & Loan Association in satisfaction of the debt from Kendrick to it were denied by both Reed and the loan association. No evidence was taken on this issue, and it was abandoned, and the court dismissed the complaint as to the Progressive Building & Loan Association.

The real question in this case is that contained in the second contention made by the appellant, and in this we are of the opinion that it is wrong. It was agreed that, after Reed conveyed the property to appellee, she paid the amount due under the mortgage, having borrowed $1,000 of the amount and paying the remainder from her own personal funds. It was clearly to the interest of the appellee to succeed to the rights of the mortgagee, and it must be presumed that this was her intention, in the absence of any affirmative showing of intention as to the outstanding judgment lien of the appellant, or that she had knowledge of its existence.

“And the rule supported by the weight of authority is that when a purchaser pays off a prior incumbrance as a part of the parchase price, without actual notice of a junior lien, it will be presumed that he paid the same for his own benefit, and the protection of his own interests, and equity will treat him as the assignee of the previous incumbrance, and will revive and enforce it for his benefit. Having caused the same to be satisfied under circumstances authorizing an inference of mistake of fact, equity will presume such mistake in order to give the party the benefit of the equitable right of subrogation; and, in so doing, prevent injuries and hardship, without interfering with intervening equities.” 25 It. C. L. 1353,

“The general rule is that the lesser estate in land will merge in the greater whenever the two estates are owned by the same person. This rule, however, does not apply where such merger would be inimical to the interests of the owner; hence, unless the intention to merge with knowledge of a junior lien or liens clearly appears, no merg-er results from the acquirement by the holder of a senior mortgage of the interests of the mortgagor, and the senior mortgage retains its priority as against all junior or intervening liens upon the mortgaged property; and this rule is true whether the interest of the mortgagor is the legal title to the land, or the mere equity of redemption. 39 L. it. A. 384.

The doctrine above announced is supported by the weight of authority and numerous decisions announcing and applying it have been cited by counsel for appellee in his brief. Among these are the following cases: Mallory v. Hitchcock, 29 Conn. 127; Smith v. Dinsmoor, 119 Ill. 656, 4 N. E. 648; Artz v. Yeager, 30 Ind. 677, 66 N. E. 917; Putnam v. Collamore, 120 Mass. 454; Tucker v. Crowley, 127 Mass. 400; Bell v. Tenny, 29 Ohio St. 240; Senter v. Senter, 87 Ohio St. 377, 101 N. E. 272; Dollar Sav. Bank v. Burns, 87 Pa. 491; Harris v. Masterson, 91 Tex. 171, 41 S. W. 482.

The appellant has shown no equity in this case calling for the application of the doctrine of merger, and, on the other hand, its application would work a manifest injustice to the appellee which ought not to be done. Simpson v. Robinson, 37 Ark. 132. In many cases it has been our policy to apply the doctrine of subrogation, where by so doing the ends of justice will be met (Chaffee v. Oliver, 39 Ark. 531; Cohn v. Hoffman, 45 Ark. 376; Neff v. Elder, 84 Ark. 277, 105 S. W. 260, 120 Am. St. Rep. 67; Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659; Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S. W. 1082, 46 L. R. A. (N. S.) 1019; Rowland v. Griffin, 179 Ark. 421, 16 S. W. (2d) 457) and to deny mergers where an injustice would follow.

In the case of Bemis v. First Nat. Bank, 63 Ark. 625, 40 S. W. 127, it is said: “It is admitted in argument, and cannot be successfully controverted, that a merger will never be presumed against the interest of the party taking the deed; but it is claimed that ‘this rule only applies in the absence of evidence tending to- show a merger.’ That is a mild way of stating it. Mergers are not favored either in courts of law or equity, and it requires evidence to show that the interests of him who holds both rights will not be prejudiced, before the rule allowing a merger will be applied; and it is hardly sufficient that the evidence tends to show a case for the application of the rule. We do not intend by this discussion to admit that the evidence shows this to be a case where a merger can be made, but, rather, how far the courts will lean towards the real interest of the holder of the two rights; and, in so doing, how strong the evidence must be to sustain the merger.”

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


author: Hart, C. J.,

text:
    American National Insurance Company v. Chavey.
    4-2577
    Opinion delivered May 30, 1932.

      W. G. Dimming, for appellant.

      Jo M. Walker, for appellee. .
   Hart, C. J.,

(after stating the facts). The court instructed the jury as follows: “The policy having been introduced, and it being admitted that all the premiums were paid at the time of the death of the deceased, and due proof made, the burden then shifts to the defendant to show that the deceased, in her application, knew that she was in unsound health, or that she accepted the policy while in unsound health; and if you find that the application was made or that the policy was delivered while the deceased was in unsound health, she knowing the same to be true, and made application knowing she was in unsound health, or accepted the policy knowing she was in unsound health, that would constitute fraud on the insurance company, and the beneficiary would not be entitled to recover.”

It is earnestly insisted by counsel for the defendant that the court should have instructed a verdict in its favor because, under the undisputed evidence, the insured was not in sound health when the policy was delivered to her, and this was a condition precedent to the policy becoming effective.

Counsel for the defendant claims that the case is governed by American National Insurance Company of Galveston, Texas, v. Lacey, 182 Ark. 1158, 34 S. W. (2d) 757. We do not think so. In that case, the beneficiary knew that the insured took sick on the 27th day of February, 1929, and the policy was 'delivered to her for her brother on the 4th day of March, 1929. Her brother was taken to the hospital on February 27, 1929, and was confined to his bed with pneumonia until his death from that disease on March 14, 1929. Hence there was no liability under the policy.

Here the facts are essentially different. The policy was issued on the 10th day of March, 1930, and the insured did not die until the 7th day of January, 1931. At the time the agent of the insurance company took her application, she was working in a store, and he testified that she appeared to be in sound health. It is true that the physicians testified that they had been treating her from time to time for diabetes in a chronic form for several years; but the fact that she lived for several years after she was treated, and was able to pursue her daily vocation of working in a store tended to show that she regarded herself, as did the agent of the company, as apparently being in sound health. The court properly submitted this question to the jury because the policy, by its own terms, provided that the representations in her application should not be considered as warranties.

The case falls within the principles of law decided in Modern Woodmen of America v. Whitaker, 173 Ark. 921, 293 S. W. 1045. In that case it was held that, in an action by the beneficiary to recover on a life insurance policy, nonexpert witnesses may state their opinions as to the physical condition of deceased on the day when he took the fraternal insurance certificate and stated that his health was good.

It was further held that, in an action by the beneficiary to recover on a life insurance policy, the jury’s finding that deceased was in good health when he received the policy and stated that his health was good, was conclusive in view of the evidence where the issue was submitted on instructions that plaintiff must prove that no misrepresentation was made and that defendant must prove that deceased was sick when he received the policy. See also United States Annuity & Life Insurance Company v. Peak, 122 Ark. 58, 182 S. W. 565; Id. 129 Ark. 43, 195 S. W. 392, 1 A. L. R. 1259.

This is an application of the well-settled rule that forfeitures are not favored and will not be enforced unless the provisions of the policy are so plain and unequivocal as to admit of no other construction.

The court properly submitted to the jury whether the insured knew that she was in sound health when she applied for the policy or whether she accepted the policy while in unsound health, knowing that to be a fact. The jury was justified in finding, under the evidence introduced, that, although she may have suffered from diabetes, she believed that she was well at the time she applied for the policy. The fact that she was pursuing her daily vocation of working in a store, and that her outward appearance indicated that she was in sound health, justified the jury in finding in her favor.

No other assignment of error is urged for a reversal of the judgment, and the judgment will therefore be affirmed.


author: Hart, C. J.

text:
    Boone County Board of Education v. Taylor.
    4-2607
    Opinion delivered May 30, 1932.

      Shinn & Henley and V. D. Willis, for appellant.

      M. A. Hathcoat, for appellee.
   Hart, C. J.

Appellants prosecute this appeal to reverse a decree of the chancery court sustaining a demurrer to their complaint, and, upon their electing to stand upon their complaint, dismissing it for want of equity.

According to the allegations of the complaint, on the first day of September, 1931, the People’s Savings Bank, of Boone County, Arkansas, became insolvent and was taken charge of by the State Banking Department for liquidation under the statute. At that time there was on deposit in said bank $42,697.53 belonging to the various school districts of Boone County. Prior to March, 1931, the People’s Savings Bank had been designated by the Boone County court as a depository, and W. W. "Wilson, treasurer of Boone County, Arkansas, and the Boone County Board of Education had been depositing the school funds in said bank. On the first day of August, 1931, W. W. Wilson, as said treasurer, and said board of education demanded said bank to conform to act 160, passed by the Legislature of 1931, with reference to securing said school money by the deposit of bonds as provided for in that act. Said bank was unable to comply with the act by the deposit of bonds, and orally agreed with appellants that the school funds at that time on deposit in said bank should remain as a preferred deposit, and that, in case of the insolvency of said bank, any and all school funds would be paid in full in preference to other claims.

The Legislature of 1927 passed an act amending the original act passed by the Legislature of 1913 for the liquidation and control of banks. Acts of 1927, p. 297. The purpose of the act of the Legislature of 1927, just referred to, was to define the relation between creditors of banks in charge of the State Bank Commissioner and to set out how they should be settled with if the banks were liquidated as insolvent banks. Taylor v. Dierks Lumber & Coal Company, 183 Ark. 937, 39 S. W. (2d) 724.

Tbe court has also held that the deposit of funds of an improvement district in a bank, although the funds are known to be a trust fund in the hands of the official depositing them, constitute a general deposit in the absence of a written agreement making them a special deposit, as required by said act of 1927. Hence the improvement district stood upon the same footing as other general creditors, and was entitled to no preference or priority 'of payment. Taylor v. Street Improvement District No. 343, 183 Ark. 524, 37 S. W. (2d) 84.

It is conceded that the principles of law there announced would control in the present case but for the passage of act 169 by the Legislature of 1931. Acts of 1931, p. 476. This was an act to provide for the organization and administration of the public common schools. It is very comprehensive in its nature and contains 198 sections. Section 74 reads as follows: “Deposit of school funds safeguarded. All general deposits of school funds in banks shall be secured by bonds of the United States, or bonds of the State of Arkansas, or by bonds of a political subdivision thereof, which has never defaulted on any of its obligations, in an amount at least equal to the amount of such deposit, or by a bond executed by a surety company authorized to do business in the State of Arkansas; such surety on such bond to be approved by the commissioner of education. Provided that, if the bank selected by the school board as a depository of its funds, shall be unable to secure such school deposit as herein set out, it shall be authorized to accept said funds as a preferred deposit, and, in the event of insolvency, such preferred deposit shall be paid in full before other bank deposits are paid. ’

The particular part of the section which it is claimed governs the present case is the proviso. According to the allegations of the complaint, the first part of the section was not complied with, but it is claimed that the concluding part of the section contained in the proviso controls in the instant case. Under the allegations of the complaint, which are accepted as true on demurrer, there was an oral agreement between the county board of education and the county treasurer, on the one hand, and the bank, on the other, that the school funds should be accepted as a preferred deposit and, in the event of insolvency, should be paid in full before other deposits are paid. It is contended that this repeals the act of 1927 above referred to, providing that special deposits, in order to obtain priority, should be created in writing.

We do not agree with counsel in this contention. The two acts of the Legislature are related to each other, and a statute is not to be construed as though it stood alone on any particular subject. It is well settled that repeals by implication are not favored; and, in construing any statute, the court should place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. Where the harmony of the law requires, one statute may be construed as lengthening out another. So the act of 1931 was passed with reference to the general law upon the subject of winding up insolvent banks and fixing the liabilities and preferences of creditors to each other. Both acts, being related to each other, should be construed together as a part of an entire law of which both are a part. State v. Sewell, 45 Ark. 387; Benton v. Willis, 76 Ark. 443, 88 S. W. 1000; McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605; and Connelly v. Lawhon, 180 Ark. 964, 23 S. W. (2d) 990.

Applying this principle of law to the case at bar, we think the Legislature of 1931, when it provided in the proviso of the section under consideration that a bank should be authorized to accept school funds as a preferred deposit under certain contingencies, meant to use- the words in the sense defined by the Legislature of 1927, and meant that, in order for the bank to accept school money as a preferred deposit, the agreement must be in writing, in compliance with act 107, passed by the Legislature of 1927, as construed by this court in the cases above cited. In this way the two statutes would be read and considered together, and construed as a harmonious whole.

Having reached this conclusion, it does not become necessary for us to consider the other question presented and argued by counsel.

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


author: Smith, J.

text:
    Stanfield v. Friddle.
    4-2569
    Opinion delivered May 30, 1932.

      ' Evans <3 Evans and Cochran <3 Arnett, for appellants.

      W. L. Kincaomon, Rhyne <& Shaw and Boy D. Campbell, for appellees.
   Smith, J.

Appellee filed in the Logan Circuit Court a petition for a writ of mandamus to compel the treasurer of that county to redeem certain county warrants held hy him. 'Interventions were filed by a number of persons holding county warrants, and various questions as to the validity and priority of these warrants have been raised. It will be unnecessary to recite upon what demands those claims arose, as the court’s declarations of law, hereinafter set out, are decisive of the questions involved on this appeal; indeed, as appellant states, the questions for decision are questions of law, and not of fact.

The declarations of law which the appeal challenges read as follows:

“1. That the revenue from all sources during the fiscal year must be allocated to the payment of the indebtedness for that year.

“2. ' That, if there is not enough revenue to pay all demands for said year, then what are termed statutory claims have preference to be paid first, because this character of expense is necessary to the proper operation of the county affairs.

“3. After paying all statutory claims, the contractual claims are to be paid in the order of their allowance by the county court, but in no case to exceed the appropriations for said year on each fund.

“á. I hold that, in so far as the statutory claims are concerned, they have preference right regardless of the amount appropriated for each fund by the levying court.

“5. All claims allowed in excess of the total revenue from all sources are absolutely illegal and void.

“6. All allowances not in excess of the revenue for any fiscal year are legal and valid, and may be paid out of the revenue of the next fiscal year, provided there is a surplus of revenue over the expenditures for such year. ’ ’

It is at once apparent that a review of these declarations of law entails a further consideration of the effect of amendment No. 10, heretofore frequently referred to as amendment No. 11 (See 184 Ark. XXIX). We have had frequent occasion to interpret this amendment, and more than a score of these cases are cited in the opinion in the ease'of Luter v. Pulaski County Hospital Association, 182 Ark. 1099, 34 S. W. (2d) 770. Many, if not all, of these cases have quoted the provisions of the amendment which relate to the questions here under consideration, and they will not be again quoted; nor will we review those cases. It will suffice to summarize their holdings.

It was said in the case of Luter v. Pulaski County Hospital Association, supra, that amendment No. 10 must now, since the adoption of amendment No. 17, be construed as it reads literally, that is, that contracts and allowances in any year cannot exceed the revenues of that year, not even for a purpose so necessary as that of building courthouses and jails, nor, as was said in that case, for building a county hospital, and we there expressed our unwillingness to hold that there was any exception for which a county might make a contract in excess of its revenues.

The law may therefore be regarded as definitely settled that any contract entered into or allowance made in excess of the revenues of the year in which the contract was entered into, or the allowance made, is wholly void, and the issuance of county warrants based thereon adds nothing to their validity, as the warrants are also void.

•Other constructions of the amendment which are apposite here may be briefly stated.

A county may not incur any obligation in any year which exceeds the revenues of that year, and, if this is done, such obligation- is void and cannot be paid out of the revenues of the succeeding year. Those contracts entered into, or allowances made, or warrants issued, which did not exceed the revenues of the year in which they were entered into, made or issued, are valid; all others are void.

The holder of a valid warrant may, by an appropriate action, compel the redemption of his warrant, to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemption of an invalid warrant. The invalid warrants cannot be received by any collecting officer of the county, and the officer who does receive one does so at his peril, and is not entitled to take credit for it in any settlement of his account, because the warrant is void. It is issued without authority, and the action of a collecting officer in receiving it cannot give it validity. Counties (and cities and towns also) must pay as they go, and can go only so far as they can pay, and they are without power to make or authorize any contract or make any allowance or issue any warrant for any purpose whatsoever in excess of the revenues, from all sources, for the fiscal year in which said contract was entered into, or allowance made, or warrant issued.

None of these statements announce any new interpretation of the amendment, but all have been made one or more times in the numerous cases interpreting the amendment, in a more or less futile attempt to coerce the fiscal officers of the counties, cities and towns of the State to obey the plain mandate of the Constitution.

It is said that certain fiscal officers of Logan County have interpreted the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, as authorizing an expenditure in excess of the revenue in certain cases. But we do not think the case is open to that construction. We must read that case in the light of the facts there stated. Polk County had not issued bonds as the amendment authorized. It had an outstanding indebtedness at the time of the adoption of the amendment which had not been paid. Its annual expenditures were less than its annual revenues. The redemption of these outstanding warrants exhausted the county’s cash, so that money was not available to redeem warrants issued in the then current year, yet we said that this fact did not affect the validity of such warrants, for the reason that their issuance did not increase the county’s debt beyond what it was at the beginning of the fiscal year. In other words, a county might operate, although it could not do so on a cash basis. The inhibition of the amendment was and is that a county should not increase its indebtedness, by appropriating and spending in any fiscal year any sum in excess of the revenues of that year.

It was there contemplated that counties might not have the revenues to pay for all the expenditures which are required or allowed by law to be made, and for the guidance of fiscal officers we declared the priority in which contracts should be entered into and allowances made.

We there quoted the sixth subdivision of § 1982, Crawford & Moses’ Digest, which directs the order in which quorum courts shall make appropriations. These items, seven in number, were divided into two classes, of which, as we said in the case of Worthen v. Roots, 34 Ark. 356: “The first four are of an indispensable nature, essential to the support of the government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract. ’ ’

Defining the duties of quorum courts under this statute, limited as it is, of course, by the constitutional amendment, it was there said: “They should first make ample provision for those necessary expenses imposed on the counties by law, including outstanding warrants payable in that year, as, for instance, an installment due for construction of a courthouse; and, after having done this, they are at liberty to make appropriations of part or the whole of the remainder of the revenue for the purposes provided by items 5, 6 and 7, but they cannot exceed the amount of the revenue for the fiscal year, ’ ’ not for items 5, 6 and 7 merely, but for these or any other purpose.

Now this case did decide that those items designated as indispensable must first be paid before other items merely permissible under the law were paid. In other words, counties could not make allowances to cover the permissible items until they 'had first made allowances for the indispensable items essential to the support of the government. Having made allowances for the indispensable items, allowances could thereafter be made for the permissible items, provided the combined allowances did not exceed the revenues. Those allowances not in excess of revenues were valid; all others were void.

We did not decide in that case, as is here argued, that warrants to be valid must be redeemable in the year of their issuance. The holding in that case, when applied to the facts there stated, is expressly to the contrary. The point decided was that warrants were valid, although they could not be redeemed in the year of their issuance because the redemption of valid warrants issued in the previous year had exhausted the county’s cash. Such warrants were valid notwithstanding the fact that they could not be redeemed in the year of their issuance, because their issuance was not in excess of the revenues of the county in the year in which they were issued.

The point primarily involved in the Mena Star case, supra, was the right of a county to pay its current bills in the year in which they should be paid, and such bills were and are paid, within the meaning of the constitutional amendment, when a valid allowance thereof is made by the county court, pursuant to which order a valid county warrant is issued.

The case of Miller v. State to use of Woodruff County, 176 Ark. 889, 1 S. W. (2d) 998, is cited as holding that valid warrants coming over from a previous fiscal year cannot be redeemed until all warrants issued in a particular fiscal year have been first redeemed. But such is not the holding in that case. The trial judge so held, but we reversed that judgment. We there pointed out that in the Mena Star case, supra, allowances were made by the county court in the year 1925 which did not equal the revenues of that year, but the redemption of valid outstanding warrants out of the revenues of that year made it impossible to redeem all the claims contracted and allowed that year. This was true also in the year 1926, so that there remained outstanding warrants which could not be redeemed. It was held that these facts did not prevent the county from contracting obligations which could be paid only by the issuance of warrants which could not be redeemed out of the revenues of 1926, and that such obligations might later be paid. We there concluded the discussion of this question with the following statement: “But here, as in the case of Polk County v. Mena Star Co., supra, expenditures have not exceeded revenues. The receipt by the collector and the redemption by the treasurer of valid warrants, which those officers could not refuse when tendered in payment of any demand due the county, made it impossible to redeem all the warrants issued in the year 1927, but those unredeemed in the year of their issuance may be redeemed, as was said in that case, out of the revenues of a subsequent year, and this is true because, in so doing, the indebtedness of the county is not increased.”

If it were held that warrants issued in a particular year must first he redeemed out of the revenues of the year of their issuance before valid warrants previously issued may be redeemed, it would follow, as a practical result, that many of such previous warrants would never be redeemed.

In the instant case, expenditures have exceeded revenues, and in most of the cases which have come before us for review there has been but little, if any, excess of revenues over expenditures, and if the redemption of these previous valid warrants must be postponed until all current warrants have been redeemed, the value of the previous warrants would be destroyed, as in many cases their redemption would be impossible, and in all cases uncertain.

The redemption of warrants is a different matter which we now proceed to discuss.

Now, while, as.we have said, a county must first pay its indispensable obligations before paying those which are permissible merely, yet both are paid, within the meaning of the amendment, by the county when allowances therefor are made, pursuant to which allowance warrants are issued, and these warrants, when issued, are equally valid, regardless of the purposes for which they were issued, and their priority in the matter of redemption or payment by the county treasurer thereafter depends, not upon the purpose for which they were issued, but upon the date of their issuance. The warrants thus issued are equally valid, if they are not in excess of the revenues of the year in which they were issued, and their validity is unimpaired because they cannot be redeemed by the county treasurer when the redemption of prior valid warrants has exhausted the county’s supply of cash. That is the essence of the decision in the 'Mena .Star case, supra.

The case of Stanfield v. Kincannon, ante p. 120, considered the order of payment of valid county warrants. It is true the warrants there issued were drawn against a fund not derived from county revenues, but from a gratuity provided by tbe State for tbe benefit of tbe counties of the State, which fund was not, for that reason, subject to amendment No. 10. But it is true also that the statutes there construed did relate to warrants drawn against county revenues.

Section 2007, Crawford & Moses’ Digest, there quoted, was passed in 1846, which was, of course, long before there was any such fund as a county turnback fund, provided by the generosity of the State, and that statute, at the time of its enactment and at all times since, has applied to county scrip or warrants, which we there held to be identical terms covering vouchers drawn against county revenues. That case disposed of the question of priority here presented, and in the construction of the act of 1846 we said: “This section applies in this case, as the treasurer is not able to meet all demands against him drawn on the county highway fund.. We think it applies in all such cases and not merely to warrants issued in cancellation of scrip or warrants previously issued. Otherwise injustice might, probably would, result on account of favoritism. This view is strengthened by a reading of § 3 of said act. It provides ‘that all county scrip or warrants * * * shall be received, irrespective of their number and date in payment of all taxes, duties, fines, penalties and forfeitures, accruing to said county. ’ The necessary inference is that, except for the purposes named in § 3, all scrip or warrants shall be redeemed in the order of their number and date, if the treasurer is not able to meet all demands. No distinction is to be made between scrip and warrants, as the terms are used interchangeably in the act. This meaning of the act was recognized by this court in Crudup v. Ramsey, 54 Ark. 168, 15 S. W. 458, in an opinion by Judge Hemingway, where he said, in reference to the act of 1846, now under consideration: ‘ This is a part of an act which provided that warrants should be paid in the order of their number, and that no warrants should be paid until all of a prior date had been paid or provided for. * * * Its manifest purpose was to provide that warrants should be received in payment of taxes and dnes to the county, even though there were prior warrants not paid or provided for. ’ And the same meaning of the act was recognized in Graham v. Parham, 32 Ark. 677, 694, where Mr. Chief Justice English used this language: ' County warrants shall be redeemed and paid by the county treasurer in the order of their number and date, and no warrant shall be thus paid until all of a prior date are paid, provided the county treasurer upon whom the warrants are drawn shall not be able to meet all demands upon the treasury. Acts December 17, 1846, .§ 2; Gantt’s Dig., § 1042.’ This cannot be avoided by making warrants payable in the future.”

Valid warrants must therefore be redeemed by the county treasurer in the order of their issuance when cash is available for that purpose, but, as was said by Judge Hemingway in the case of Crudup v. Ramsey, supra, warrants may be received in payment of taxes and dues to the county, even though there were prior warrants not paid or provided for. The sentence following the language quoted from Judge Hemingway’s opinion in the Stanfield case, supra, reads as follows: "It” (the statute above referred to) "was designed to make the date of a warrant, in so far as it was later than others, immaterial when it was offered in payment of taxes and dues — nothing more. ”

The quotation from the case of Miller v. State, to use of Woodruff County, supra, herein appearing, is to the same effect. While, therefore, warrants may be used in payment of taxes or dues to the county regardless of their priority as to date, the warrants must, so far as their redemption by the county treasurer by payment in cash is concerned, be in the order of their priority as to number and date.

The judgment of the court below will be reversed, and all the declarations of law made at the trial from which this appeal comes, set out above, will be modified to conform to the views here expressed, and upon the remand of the cause the court will adjudge the rights of the various parties in accordance with the principles here declared.

Hart, C. J., and Mehaeey, J., dissent in part.


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    Gates v. Reese.
    4-2572
    Opinion delivered May 30, 1932.

      David A. Gates, Earl B. Wiseman and Jay M. Bow- ' land, for appellant.

      A. T. Davies, for appellee.
   Humphreys, J.

Appellant proceeded under § 69 of act 65 of the Acts of 1929 to collect from appellee the privilege tax provided for in acts Nos. 62 and 65 of the Acts of 1929 for operating a motor vehicle for compensation for the transportation of persons, property, or freight.

Appellee brought this suit in the chancery court to enjoin appellant from proceeding further in the collection of said privilege tax upon the alleged grounds: first, that said tax is confiscatory in that it is greater than the earnings of the business; and, second, because their particular business did not constitute an operation of motor vehicles for compensation for the transportation of persons, property, or freight.

A demurrer' was filed to the complaint, which was overruled, and the case was tried upon the following agreed statement of facts:

“The parties to the above entitled and numbered cause agree that the following is a statement of facts upon which judgment shall be rendered therein, in so far as the said judgment of the court applies to the liability or nonliability of the defendants for the payment of the 4 per cent, vehicle tax,- the controversy therein being submitted to the court upon the same as such agreed statement of facts.

‘ ‘ That in this case, David A. Gates, Commissioner of Revenues of the State of Arkansas, has filed with the circuit clerk a certified judgment as to the amount of motor vehicle tax due the State of Arkansas from the petitioners herein, and upon said judgment an execution has been delivered to the -sheriff as provided by law, and the said sheriff has endeavored to make a levy upon said execution, and the petitioners herein have applied for an injunction to prevent the sheriff from levying upon their property, claiming that they do not owe the State anything, and that the particular part of their business in question is not subject to the 4 per cent, motor vehicle tax..

“That the petitioners operate what is known as a wrecker, and use it for the purpose of going out on the highways and streets to tow disabled automobiles into their garage for repair, and, while so doing, they carried automobile parts, oil, gasoline, tires, etc., and they hold themselves out to the public as ready to undertake this service in the city of Hot Springs and along public highways in the country and, by advertising they solicit patronage of the public and do a general business with the public, and solicit business from the public.

“That the period for which the Commissioner of Revenues estimated the tax due begins August 1, 1929, and-ends December 31, 1930.

“That there has been no audit made by the revenue department as to the amount of gross income received by the petitioners herein from this source, and it is agreed that, in the event they are held liable to pay a tax, then the department shall have a right to check their books, as provided by the law, to arrive at the actual amount taxable during the period that the motor vehicle tax has been in force. ’ ’

Upon a hearing of the cause, the trial court permanently enjoined the collection of the tax in question.

Under the ruling in Fitzgerald v. Gates, 182 Ark. 655, 32 S. W. (2d) 634, the court should have sustained the demurrer to paragraph No. 1 of the complaint, which merely alleged that the law as applied to appellees’ business would confiscate his property without due process of law.

Under the ruling in the case of Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. (2d) 406, the business conducted by appellee comes clearly within' the statute under the agreed statement of facts, and is subject to the 4 per cent, privilege tax provided for in § 67 of act 65 of the Acts of 1929. This class of motor vehicles was not exempted by act No. 239 of the Acts of 1931 from the collection of the 4 per cent, privilege tax as contended by appellee.

On account of the error indicated, the decree is reversed, and the cause is remanded with directions to dissolve the injunction, and to dismiss appellee’s complaint.


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    Halbrook v. Williams.
    4-2576
    Opinion delivered May 30, 1932.

      E. W. Moorhead, for appellant.

      Frauenthal, Sherrill & Johnson, for appellee.
   McHaney, J.

On July 1, 1931, appellee’s intestate, B. M. Morgan, was driving Ms Ford coupe south, on Palm Street in North Little Rock and was crossing Second Street when his car was struck near the rear end by the Chevrolet car of appellant going east on Second Street with such force and violence as to tear off the right rear wheel of the Ford, causing it to reverse its direction, and throwing Mr. Morgan and his wife, who was riding with him, to the pavement, killing both of them. Mr. Morgan was killed instantly. Mrs. Morgan died some hours later without regaining consciousness. Separate suits were brought by appellee as administratrix of both estates for the benefit of their four minor children, the oldest being a boy 17 years of age, and the youngest a girl of 7. A recovery was also sought for pain and suffering, but, as the proof failed to develop any consciousness of either after the accident, the court properly declined to submit that element of damages to the jury. The cases were consolidated for trial which resulted in a verdict and judgment in each case of $15,000 against appellant.

Five grounds are urged for a reversal of these judgments as follows:

1. When the jury was being impaneled, counsel for appellant asked all the members of the panel if they had “any connection or relationship with the Standard Casualty & Surety Company of New York.” And further if they “had such relationship with any such company or any surety company that insures persons against liability. ’ ’ At the first intimation of such questions being propounded to the jury, counsel for appellant stated to the court in the absence of the jury that he offered to prove in the absence of the jury by its general agent for Arkansas that “none of this jury is connected with the general agency or any local agency, ’ ’ and by its general counsel that none of the jury had any interest in the company as stockholders. The court then inquired of counsel for appellee if he had any reason to believe appellant had liability insurance, and he answered that he knew such to be the fact. The two questions as above stated were then permitted to be asked the jury over appellant’s objections and exceptions. Even though appellant had made the proof offered, which he did not, and even though it be accepted as true, it would not preclude the questions, as it did not go as far as they did. The jurors or some of them might have had some relationship or connection with the particular company mentioned or some other surety company so as to make them undesirable jurors, and still not have been connected with any agency or held any stock in the particular company. We have many times held that similar questions may properly be asked the veniremen for the purpose of intelligently exercising the right of challenge. Smith-Arkansas Traveler Co. v. Simmons, 181 Ark. 1024, 28 S. W. (2d) 1052; Ellis & Lewis v. Warner, 182 Ark. 613, 32 S. W. (2d) 167; Bourland v. Caraway, 183 Ark. 848, 39 S. W. (2d) 316; Sutton v. Webb, 183 Ark. 865, 39 S. W. (2d) 865. No error was committed, therefore, in this regard.

2. It is insisted that appellee is barred from recovery because of the contributory negligence of Mr. and Mrs. Morgan. We do not review the evidence, as we think no useful purpose could be served in doing so. We have carefully read the testimony of the witnesses for both sides, and have reached the conclusion that there was very substantial evidence that appellant was negligent, and that the deceased persons were not. At least, we cannot say, as a matter of law,'that the latter were guilty of contributory negligence preventing a recovery. The court properly submitted this question to the jury, and, there being substantial evidence to support the verdict, it is binding here.

3. It is suggested that the court erred in permitting a police officer to testify over appellant’s objection that another officer arrested appellant shortly after the acci-. dent. There was no error in this regard, but, even so, it could not be prejudicial as the other officer so testified without objection, and appellant himself testified that he was arrested by such other officer.

4. Complaint is also made of the giving of certain instructions and the refusal to give certain others at appellant’s request. For instance instruction No. 2, given at appellee’s request, told the jury that if they believed from the evidence that Mr. and Mrs. Morgan were proceeding south on Palm at its intersection with Second in the exercise of ordinary care, and, while in said intersection, appellant negligently drove into same and struck the Morgan car and negligently caused their deaths without fault on their part, a recovery should be had in each case. This instruction is criticised on the grounds that it disregarded the duty imposed on them to look to the right and yield the right-of-way to cars approaching from the right. A city ordinance so provides, but we held in Murray v. Jackson, 180 Ark. 1144, 24 S. W. (2d) 960, that a vehicle having first entered an intersection had the right-of-way over a vehicle which had not, under a like municipal ordinance. In this case the evidence was sufficient to establish, the fact that the Morgan car entered the intersection first and was crossing the south rail of the street car track before appellant’s car struck it. The instruction under discussion was in line with the hold- ' ing in Murray v. Jackson by saying: “And that while in said intersection the defendant * * * drove into said intersection and ran his car against the car of B. M. Morgan and in doing so he was negligent and his negligence caused the collision,” etc. In Jacks v. Culpepper, 183 Ark. 505, 37 S. W. (2d) 94, we held that a similar ordinance does not require one who has actually entered the intersection to yield the right-of-way to one whose car is approaching but has not entered the intersection. We cannot discuss in detail all the errors argued relative to instructions, as to do so would extend this opinion beyond due bounds without accomplishing any practical result. We have examined the argument made on the several assignments and find it without substantial merit.

5. It is finally suggested that the verdicts are excessive. We do not think so. Four children were deprived of both mother and father in the same tragedy. The oldest, a boy, was 17 years of age. There were three little girls, age 14, 11 and 7. The father was earning $100 per month and was supporting and educating them with the help of his wife who looked after them and operated a grocery store in connection with the residence. They were shown to be a happy and contented family with ambition to educate and properly rear their children. The value of the counsel, advice, guidance, loving care and solicitude of both mother and father would be difficult of ascertainment in money and must be left to the sound judgment of the jury where it is not shown that such judgment has been swayed beyond reason and common sense by passion or prejudice. In addition the father was earning $1,200 per year, which was devoted to family purposes. Under these circumstances, we cannot say the judgments are excessive.

We find no error, and the judgments are accordingly affirmed.


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    Colum v. Imboden.
    4-2571
    Opinion delivered May 30, 1932.

      Edward Gordon, for appellant.

      J. W. Johnston and Carroll W. Johnston, for appellee.
   Butler, J.

This is a suit to recover the purchase price of a hill of material amounting to $118.51, alleged to have been sold by appellee to appellant, who defended upon the ground that the material had not been sold to him, and that he had not agreed to pay for it. Appellee testified, and he was corroborated in this testimony by other witnesses, that he sold the building material to appellant, but had delivered it, at appellant’s direction, to "W. S. Birt, who testified that the lumber had been sold to him and upon his credit, and that Colum did not buy it or agree to pay for it.

This issue of fact was submitted to the jury, and is concluded by the verdict of the jury in appellee’s favor.

The defendant asked an instruction, which the court refused to give, reading as follows: “No. 1. The jury are instructed that no contract for the sale of goods, wares and merchandise for the price of $30 or upward shall be binding upon the parties unless first, there be some note or memorandum signed by the party to be charged; or second, the purchaser shall accept a part of the goods so sold and actually receive the same; or third, shall give something in earnest to bind the bargain or in part payment thereof. ’ ’

This instruction is, of course, a correct declaration of the law; indeed, it is a copy of § 4864, Crawford & Moses’ Digest, but no error was committed in refusing to give it, for the reason that the instruction is not applicable to the controlling issue of fact. According to the undisputed evidence, there was. a sale, pursuant to which there was an actual delivery of the goods sold, and the material was used for the purpose for which it was bought. Chalfant v. Haralson, 176 Ark. 375, 3 S. W. (2d) 38.

The controlling question in the case is the one of fact: To whom was the sale made? The plaintiff did not contend that he sold the material to Birt upon Col-um’s promise to see the debt paid. A contract of sale of that character could not be enforced against Colum unless the agreement to pay Birt’s debt had been evidenced by a writing signed by Colum. Section 4862, Crawford & Moses’ Digest. It is unnecessary to review any of the numerous cases which have construed this statute and defined the difference between original and collateral promises. The plaintiff’s testimony was to the effect that Colum and Birt came together to his place of business ; that he did not know Birt, and that no credit was extended to him; that he did know Colum and knew him to be responsible, and made the sale directly to Colum, and charged the material, at the time of the sale, to Colum, and made no charge against Birt. It is true the material was delivered to Birt, but plaintiff testified that this was done pursuant to the contract of sale and under Colum’s direction. If this was true, the sale was to Col-um, and the statute of frauds does not apply. As we have said, this issue of fact was submitted to the jury, and is controlled by the verdict returned in the case in appellee’s favor.

The judgment must be affirmed, and it is so ordered.