author: Haet, J.,

text:
    Lucas v. Lacy.
    Opinion delivered June 29, 1925.
    Wills — widow's renunciation op will. — Under Crawford & Moses’ Dig., § 3540, providing that a widow renouncing a will shall convey by deed of release and quitclaim' to the heirs of her husband’s estate, held that a deed of quitclaim by a widow to the heirs of her husband and his devisees, including such of her collateral heirs as were named as devisees, wias insufficient as a renunciation of the will.
    Appeal from Logan. Circuit Court, Southern District; James Cochran, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    Mrs. R. A. E. Lucas filed a petition in the probate court against the heirs of Isaac J. Lucas, deceased, to have dower allotted to her in his estate.
    Isaac J. Lucas and his wife, Mrs. R. A. E. Lucas, were married to each other, in 1872 in what is now the Southern District of Logan County, Ark. Isaac J. Lucas died testate on the 14th day of June, 1922, leaving-surviving him his widow and certain collateral heirs. He died possessed of both lands -and personal property. By his will he directed that his wife should have the use and benefit of all his property, both real and personal, during the balance of her life. At her death he directed that the balance of his personal property and all of his real estate should be divided in the manner designated in the will between his collateral heirs and the collateral heirs of his wife. The will was .executed on the 26th day of June, 1919, and Isaac J. Lucas died in the Southern District of Logan County, Ark., on the 14th day of June, 1922. On the 20th day of April, 1923, Mrs. R. A. E. Lucas executed a deed of release to the heirs of Isaac J. Lucas, deceased, and the devisees named in his last will and testament, to all the right, title and interest devised to her under said will. The lands are specifically described in the deed, and it was dulv acknowledged before, a notary public on the day of its execution. The deed was delivered to her nephew, who was also one of the executors under the will.
    Mrs. Lucas filed her petition for dower in the probate court on the 17th day of April, 1923. Dower was allotted to her by the probate court, and the heirs of Isaac J. Lucas, deceased, duly prosecuted an appeal to the circuit court. There the case was heard upon the facts above stated.
    It was further shown that the lands of Isaac J. Lucas were rented to a nephew of Mrs. Lucas for $525 per year, and that he was in possession of said lands under his lease when Isaac J. Lucas died. He continued in possession of the lands after Lucas’ death, and was in possession of them at the time this suit was commenced. Mrs. Lucas intended to abide by the provisions of her husband’s will, but changed her mind and undertook to claim dower under the statute because the heirs of her deceased husband were notifying the tenants not to pay rent on the lands to her, ^nd were also attempting to interfere with her possession of the personal property.
    The circuit court found that the petitioner had not made her renunciation of the will in the manner provided by statute, and it was adjudged that her petition should be dismissed. From the judgment rendered, Mrs. R. A. E. Lucas has duly prosecuted an appeal to this court.

      Kincannon & Kinccmnon, for appellant.

      Ewans é Evans, for appellee.
   Haet, J.,

(after stating the facts). The widow filed her renunciation of the will within the time prescribed by statute, and the correctness of the judgment of the circuit court depends upon the construction to be given to the statute as applied to the facts of the case at bar.

See. 3540 of Crawford & Moses’ Digest reads as follows: “If a widow, for whom provision has been made by will, elect to be endowed of the lands and personal property of which her husband died seized, she shall convey, by deed o,f release and quitclaim, to the heirs of such estate the land so to her devised, and bequeathed, which deed shall be acknowledged or proved and recorded as other deeds for real estate are required to be acknowledged or proved and recorded.”

The record shows that Isaac J. Lucas died on the 14th day of January, 1922, and that Mrs. Lucas, his widow, executed the deed of release on the 20th day of April, 1923. The grantees in the deed of release and quitclaim are the heirs of .Isaac J. Lucas and the devisees under his last will and testament, who are specifically named as grantees.

The statute provides that the widow shall convey by deed of release and quitclaim to the heirs of her husband’s estate. In the case at bar she not only conveyed to the heirs of her deceased husband, but also to such of her collateral heirs as were named as devisees in the will. This was not the renunciation of the will provided by statute. The object of the Legislature was to compel the widow to make her election to take her dower, instead of the provision made her under the will in lieu thereof, by some method which was plain and could not be misunderstood. The statute prescribes definitely the grantees in the deed, and it appears to have been enacted, not only for the purpose of fixing a definite manner of election, but to provide that the title of the real estate of the testator might be made a matter of record, to the end that those dealing with the property might be advised regarding the title. The will would be a matter of record when it was recorded, and in like manner, if the widow executes a deed of release and quitclaim as provided by the statute, it may be placed of record and thus a complete record of the title is provided for. It was not alone for the purpose of divesting the widow of any interest in the lands she might have under the will that the statute required renunciation, but for the sake of the heirs of the deceased, in order that they might be advised of her disposition .in the matter.

It will be presumed that the devisees under the will would be bound to receive notice in due course of the administration of the estate under the will. Be that as it may, the statute provides that the deed of release and quitclaim shall be executed to the heirs of the estate of her deceased husband, and, this being the mode of renunciation pointed out by the statute, the courts have no power to adopt a substitute. This is the effect of our previous construction of the statute. Pumphry v. Pumphry, 52 Ark. 193, and Cooley v. North, 130 Ark. 350.

The effect of our holding is that Mrs. it. A. E. Lucas, as widow of Isaac J. Lucas, deceased, is entitled to the use of all of her husband’s property, both real and personal, during her natural life, in accordance with the principles of law laid down in Galloway v. Sewell, 162 Ark 627.

The result of our views is that the judgment of the circuit court must be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Blytheville Courier v. McCall.
    Opinion delivered June 29, 1925.
    1. Contracts — method of settling differences. — Parties to a contract may provide as to the method of settling differences arising under it, and a rule promulgated by a newspaper holding a subscription contest that, should any question arise, the decision of the manager should be absolute and final is valid.
    2. Contracts — decision of arbitrator. — Under a contract providing for submission of disputes to an arbitrator, the decision of ,such arbitrator must be upon substantial points of difference, and made fairly, impartially and in good faith.
    3. Contracts — decision of arbitrator — good faith. — Where the rules of a newspaper subscription contest barred any “near relative” of the newspaper's employees, and provided that question arising in this contest should be determined finally by the management, a decision of the management that a brother-in-law was not a “near relative” was final, in the absence of fraud.

      Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge;
    reversed.

      Little, Bucle & Lasley and W. D. Gravette, for appellant.

      Nelson & Crawford, for appellee.
   Smith, J.

In the fall of 1922 the Blytheville Courier, a newspaper published in the city of Blytheville, put on a campaign to increase its subscription list, and as an aid thereto offered prizes to those securing subscriptions. The prize offered to the one securing the largest number of subscribers was an automobile of the value of $1,975. The second prize was $300 in cash.

When the campaign was put on, rules and regulations governing it were promulgated and published in the paper. There were twenty-one of these rules, the third of which reads as follows: “3. No employee or near relative of any employee of The Blytheville Courier is eligible to enter this distribution. The Blytheville Courier reserves the right to reject any nomination.” The twenty-first rule provided that “The Blytheville Courier guarantees fair and impartial treatment to all candidates, but, should any question arise, the decision of the management will be absolute and final. ’ ’

Under the provisions of the rules promulgated, the campaign was to extend over a period of six weeks, and was to close Saturday night, November 9, 1922. The two principal contestants were Virginia McCall, a girl eleven years old, and Mrs. J. Mel Brooks.

A few days before the campaign closed Dr. McCall, the father of the girl, discovered that a boy who was employed in the mechanical department of the paper was a brother-in-law of Mrs. Brooks, and he protested against Mrs. Brooks’ candidacy on the ground that she was ineligible under the rules of the contest. The contest manager decided that Mrs. Brooks was not ineligible, and the contest proceeded to its close. On Saturday night, when the votes were to be finally counted, Dr. McCall appeared before the judges who had been selected to count tlie vote, and renewed Ms protest against Mrs. Brooks’ eligiMlity. The manager of the contest advised the judges that they had no authority to decide this question, that it had already been settled. The judges then proceeded with the count and announced the result of the contest to be that Mrs. Brooks had received the highest number of votes and was entitled to the automobile, and that Virginia McCall had received the second highest number of votes and was the winner of the $300. The manager of the contest then delivered the automobile to Mrs. Brooks, and mailed a check for $300 to the young lady. Dr. McCall renewed his protest and declined to permit his daughter to cash the check, but mailed it to his attorney. The wife of the attorney was very ill at the time and required the constant care and attention of her husband, and after a few months’ illness she died. When the attorney was able to return to his office and give attention to his professional business, he tendered a return of the check and demanded the surrender of the automobile, and upon this demand being refused brought this suit to recover the value of the automobile.

At the trial below the court declared the law to be that Mrs. Brooks was ineligible as a contestant, and to find for the plaintiff unless the jury found the fact to be that plaintiff had, under the circumstances of the case, retained possession of the check beyond a reasonable time for its ‘return. There was a verdict and judgment for the plaintiff, from which the defendant has appealed.

We think the court was in error in declaring Mrs. Brooks ineligible. It is an admitted fact that her brother-in-law was employed by the newspaper putting on the contest, but there is at least some question, some room for reasonable and honest difference of opinion, as to whether Mrs. Brooks was a “near relative” of the employee within the meamng of the.rules governing the contest. There were twenty-one of these rules, and it is obvious that it was contemplated that differences of opinion might arise in their interpretation, and the last— or the 21st — rule was intended to take care of that situation. It provided that, should any question arise, the decision of the manager should be absolute and final.

These rules formed the contract under which the contest was held, and the rule making the manager of. the contest the referee on all questions growing out of the contest is a part o.f the contract. The parties to a contract may provide in the contract how differences arising under it may be adjusted. Such provisions are not unusual, and their validity has been uniformly upheld. Boston Store v. Schleuter, 88 Ark. 213; Carlile v. Corrigan, 83 Ark. 136; Williams v. Bd. Directors of Carden’s Bottom Levee Dist. No. 2, 100 Ark. 166; Hatfield Special School Dist. v. Knight, 112 Ark. 83.

Of course, the point of difference, to be decided by the referee or the arbitrator must be substantial and not capricious. The arbitrator must act fairly and impartially. He must exercise an honest and intelligent judgment, and, if he fails to do this, or if he makes such gross mistakes as necessarily imply bad faith, his decision will not be binding, and it would then become the province of the courts, in appropriate litigation, to decide the question at issue.

Respective counsel have cited numerous authorities as to the meaning of the phrase, “near relative.” We do not review them here because the phrase is sufficiently ambiguous to furnish a reasonable basis for a difference of opinion as to its meaning.

The management of the contest for appellant was conducted by a Mr. Morrison, who was a representative of “The Portlowe Plan,” a concern engaged in putting on and conducting campaigns of this character for various newspapers to increase their circulation. There is no intimation that Morrison decided corruptly or arbitrarily, or that he did not exercise his honest and best judgment in the decision of the question as to the meaning of the phrase “near relative.” He testified that he did, and there is no contradiction of this testimony, and, as it cannot he said that the question is so free from doubt as to indicate a mistake so gross as to indicate bad faith, his decision, which was that of the management, must be accepted as final and binding on the contestants.

The judgment must therefore be reversed, and, as the case has been fully developed, it will be dismissed.


author: Smith, J. Hart, J. McCulloch, O. J.,

text:
    Kirk v. High, Mitchell v. Hamby,
    No. 9154.
    No. 9152.
    Opinion delivered June 29, 1925.
    1. Evidence — judicial notice. — It is a matter of common knowledge that there is no county in the State which could build a courthouse or jail sufficient for use as such out of revenues for any single year.
    2. Counties — limit of expenditures. — Under Amendment 11 to the Constitution providing that the fiscal affairs of counties shall be conducted on a sound financial basis anid prohibiting county officers from making contracts or allowances in excess of the revenue for the fiscal year, any payment which a county makes’ for any purpose during the year is part of the expense for that year; and where the total revenues have been appropriated and disbursed, the expenditures must cease, and the officer who overdraws does so at his peril.
    3. COUNTIES' — LIMIT OF EXPENDITURES — COURTHOUSES AND JAILS.— Amendment 11, prohibiting expenditures by counties in excess of revenues for the fiscal year, held not to prohibit the building of courthouses and jaife by counties because such buildings exceed the yearly revenues in total cost, but to require only that the cost thereof be so apportioned over a term of years that such cost apportioned to each year, together with other governmental expenditure, shall not exceed the yearly revenue.
    (1) Appeal from Lonoke Chancery Court, John E. Martine-cm, Chancellor;
    affirmed.
    (2) Appeal from Nevada Chancery Court; C. E. Johnson, Chancellor reversed.

      Trimble S Trimble, for appellant Kirk.

      W. J. Waggoner and Chas. A. Walls, for appellee High.

      Dexter Bush, for appellant Mitchell.-

      Randolph P. Hamby, for appellee Hamby.
   Smith, J.

Case No. 9154 is the suit of a citizen and taxpayer of Lonoke County, who, for the benefit of himself and all other taxpayers of that county, filed a complaint, in which he alleged that the county judge and three other citizens of the county are the duly qualified commissioners for the construction of a courthouse for that county. It was alleged that at the regular term of the quorum court of Lonoke County it had been unanimously voted to erect a courthouse at a cost not to exceed $150,000, the same to be paid for in not to exceed twenty annual installments not exceeding $10,000 in any one year, and the sum of $10,000 was appropriated to be paid out of the revenues of .1924 as the first payment. It was alleged that the quorum court of the county had pledged the faith and credit of the county to set aside not to exceed one mill, or so much thereof as was necessary, of the annual.five-mill tax for county purposes to meet the annual appropriation to be made under the terms of the resolution of the quorum court which directed the county judge, in conjunction with the commissioners, to execute a contract for the construction of the courthouse. It was further. alleged that the total assessed value of the real and personal property is approximately ten million dollars, and that the five-mill tax for county general purposes would yield only about $50,000 per year, and the one-mill pledged to be used for the payment of the annual appropriation to build the court house will yield only about $10,000, and that the county’s total revenues from all other additional sources is only $10,000 per annum. It was further alleged that, notwithstanding these facts, the commissioners proposed to let a contract for the construction of a building the cost of which may amount to $150,000, and that the contract will be let unless they are enjoined from so doing. There was a prayer that the commissioners be enjoined, from entering into the proposed contract.

A demurrer to this complaint was filed and sustained, and the taxpayer has appealed.

In case No. 9152 a citizen of Nevada County sought to enjoin the construction of a jail in that county, and the complaint filed by him contains allegations raising the same question as is presented in the Lonoke County case. A demurrer to this complaint was filed and overruled, and the commissioners stood on their demurrer and have appealed.

The same question is therefore presented in both appeals, and a single opinion will suffice to dispose of both cases.

The controlling question in the case is the effect of the adoption of the Eleventh Amendment to the Constitution of the State. This amendment was adopted by the people at the general election of 1924, as declared by the court in the case of Brickhouse v. Hill, 167 Ark. 513,

This amendment was adopted as an amendment to section 4 of article 12 of the Constitution, and the portion thereof relevant to the facts involved in the pending appeals reads as follows: “The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs, or commissioners, of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any'purpose whatsoever, or authorize the issuance of any contract or warrants, scrip or other evidence of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town, sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year.”

Other portions of the amendment provide that the counties, cities and incorporated towns of the State may pay their outstanding indebtedness by issuing negotiable bonds and, after authorizing that action, it is further provided that “Where the annual report of any city-or county in the State of Arkansas shows-that scrip, warrants or other certificates of indebtedness had been issued in excess of the total revenue for that year, the officer or officers of the county or city or incorporated town who authorized, signed or issued such scrip, warrants 'or other certificates of indebtedness shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined in any sum not less than five hundred dollars nor more than ten thousand dollars, and shall be removed from office.”

Does this amendment operate to prohibit the counties of' the State from building courthouses and jails where the cost of such buildings would exceed the sum that can be appropriated and paid in any one year out of county funds for such purposes?

We think the purposes of this amendment were, first, to enable the cities, counties and incorporated towns of the State to pay their outstanding indebtedness by an issue of bonds; in other words, to get on a cash basis; and the second purpose was to prevent the counties, cities and towns of the State from accumulating a floating debt which could not be paid out of the total revenues of the fiscal year, that is, the obligations payable in a given year must not exceed the revenues of that year. •

But does this mean that courthouses or jails cannot be erected unless the total cost of the construction can be paid out of the revenues of a single year? We think not.

The rule 'by which amendments to thé Constitution are to be construed was stated in the case of Hodges v. Dawdy, 104 Ark. 583, where it was said: “The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any other new enactment, it is a ‘ fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it.’ State v. Sewell, 45 Ark. 387. In the construction of its terms, and in the determination of its scope and effect, the courts should follow settled rules of interpretation.”

In the application of this rule of construction the court refused to give a literal reading to certain phrases appearing in the amendment which was there construed,' and assigned as the reason for so doing that “such a construction leads to an absurdity, and must be rejected for that reason. State v. Smith, 40 Ark. 431.”

It is a matter of common knowledge, known to every citizen, that there is possibly no county in the State which could build a courthouse sufficient for use as such and pay for it out of the revenues of any single year. This could certainly not be done if the county paid the other ordinary and inevitable expenses of government. The same thing is no doubt true as to many counties in the matter of building jails..

These are unusual and extraordinary expenses, They are not incurred annually. Ordinarily, courthouses and jails answer the purposes for which they were constructed for many years. They are essential to the discharge of 'the functions for which counties are created. It is not likely that any county in the State has ever, or will ever, pay the total cost of a courthouse out of the revenues of the county for a single year.

As was said by Chief Justice Bunn in the case of Hilliard v. Bunker, 68 Ark. 340. “In such an expensive matter as the building of a courthouse and jail, it is not of course expected, under ordinary circumstances, to cover the whole amount by the levy for one year, and in fact this cannot be done, since, together with the ordinary expenses of the county, the levy for erecting these buildings must not exceed in one year the rate of 5 mills. The amount and number of the annual installments necessary to cover the whole cost of the structure must be and is left to the discretion of the levying court, to be exercised so as to accomplish the result intended in a reasonable time.”

This language was quoted and approved in the recent case of Shoffner v. Dowell. 168 Ark. 229, but, as that case originated 'before the adoption of amendment No. 11, all that was there said is not applicable here.

Any payment a county makes for any purpose during any year is a part of the expense of that year, and where the total revenues have been appropriated and disbursed, expenditures must cease. The fiscal officer of the county, city or town whose duty it is to draw a warrant upon which the revenues would be paid out must cease drawing warrants under penalty' of a fine and forfeiture of his office when warrants have been drawn in a sum sufficient to exceed the revenues of a particular year. He overdraws at his peril.

But this inhibition is not to be read too literally. A literal reading would prevent the expenditure of surplus revenue which might be accumulated by a county, city or town, to construct a building the cost of which would exceed the revenue of a single year, for the penalty of the statute falls “where the annual report * * * shows that scrip warrants or other certificates of indebtedness had been issued in -excess of the total revenue for that year.”

If the amendment is' read literally, it would be fruitless for a county, city or town to accumulate a surplus to erect a building which would exceed, with other necessary expenditures, the revenues of a single year, for, if the annual report which the amendment requires shows that this has been done, the officer upon whose warrant the money was disbursed would forfeit his office and be subject to a fine.

We think the amendment means just this: that, if a county, city or town avails itself of the provision authorizing the taking up of its outstanding indebtedness, it shall not thereafter draw warrants upon the treasurer for an amount in excess of its annual revenues. It must stay out of debt. It means further that, if a city, county or town has any outstanding unpaid warrants which it does not take up by issuing bonds as authorized by the amendment, it must not add to its existing indebtedness by issuing more warrants than can be paid out of the revenues of the current year.

But it does not mean that the county without a courthouse or a jail must dispense -with these essentials because they cannot be fully paid for in one 3rear. Counties may contract for these buildings and may apportion the cost over a number of years, but in doing so the other necessary expenses of government must be taken into account, and no authority be conferred upon the officers charged with the duty of issuing vouchers or warrants to issue them for a sum which will exceed the total revenues for any single year.

For instance, if Lonoke County has revenues not exceeding $60,000, and proposes .to expend $10,000 a year on a courthouse, then all other expenditures must not exceed $50,000 per - year. The sum to be paid in a particular year is “the contract or allowance” for that year, and must be shown in the annual report which the amendment requires the counties, cities and towns to make, and this contract or allowance must not, with all other contracts or allowances payable that year, be “in excess of the revenues from all sources for the fiscal year in which said contract or allowance is made.” But, subject to this limitation as to payment, we do not think the amendment requires counties having no courthouses or jails to attempt to function without them, and the counties may therefore contract for their construction, provided no obligation is incurred to pay a sum of money exceeding — in addition to other expenditures —the total revenues of the year in which a particular payment is to be made.

It follows, from what we have said, that the decree in the Lonoke County case will be affirmed, and the one in the Nevada County case will be reversed.

The Chief Justice dissents, and Mr. Justice Hart concurs.

Hart, J.

(concurring). It has been aptly said that State Constitutions are framed for the very purpose of adaptation to the progress of the times and to be -a general, not special, rule of action and restraint.

■ While it is true that in interpreting a Constitution it is to be read as it is written, still the Constitution and the amendments thereto must be so interpreted as to give effect to every part thereof and leave each part some office to perform. It is a primary rule of construction that the Constitution must be considered as a whole, and to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same'subject. Little Rock v. North Little Rock, 72 Ark. 195, and State v. Clay County, 93 Ark. 228

No interpretation of the amendment under consideration in this case should be allowed which would conflict with any other provision of the Constitution unless it is absolutely necessary in order to give effect to the amendment. On the other hand, such construction should be given as will, if possible leave all the other provisions of the Constitution unimpaired and in full force. State v. Donaghey, 106 Ark. 56.

In People v. Potter, 47 N. Y. 375, the idea is clearly expressed by Judge Folger as follows: ‘ ‘ The Intent of the lawmaker is to toe sought for. When it is discovered, it is to prevail over the literal meaning of the words of any part of the law. And this intent is to be discovered, not alone by considering .tire words of any part, tout by ascertaining the general purpose of the whole, and by considering the evil which existed calling- for the new enactment, and the remedy which is sought to be applied. And when the intent of the whole is discovered, no part is to be so construed as that the general purpose shall be thwarted, but all is to be made to conform to reason and good discretion. And the same rules apply to the construction of a Constitution as to that of a statute law. ’ ’

The same general rule was also clearly and concisely stated by Mr. Justice Walker in State v. Scott, 9 Ark. 270, as follows: “In determining the intentions of the framers of the .amendment, we must keep in view the Constitution as it stood at the time the amendment was made, the evil to he remedied by the amendment, and the amendment proposed, by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the proposed .amendment. On the contrary, such construction should be given a® will, if possible, leave all the other provisions in the Constitution unimpaired and in full force.”

The above was quoted and approved in Ferrell v. Keel, 105 Ark. 380.

In the application of these established rules of construction it will be remembered that article 13 of our Constitution is devoted to counties, county seats, and county lines. Counties are civil divisions of the State for political and judicial purposes, and are its auxiliaries and instrumentalities in the administration of its government. Cole v. White County, 32 Ark. 45 and oases cited. Throughout the 'Constitution, counties are recognized in various ways as civil divisions of the State for political and judicial purposes. Counties are made the units of government for legislative, administrative and judicial purposes.

Court houses and jails are absolutely necessary in the administration of the State government, and I do not think that the amendment under consideration was designed to take away the powers in the respect to repairing and erecting courthouses and jails, which were possessed before its ad-option. I think such an interpretation of the amendment would be too narrow and literal, and would .tend to defeat the very purposes which it was designed to -effectuate. Therefore, I think that the power to construct courthouses and jails is unchanged by the amendment.

McCulloch, O. J.,

(dissenting). I am not sure whether the opinion of the majority should be construed to mean that the construction -of courthouses and jails is exempt from the restrictions found in amendment No. 11, -or whether the words, “make or authorized any contract or make any allowance,” are held to be synonymous with the words, “sign or issue any scrip, warrant or make any allowance,” so as merely to prohibit the issuance or the making -of -allowances. There is reference throughout the -opinion to the construction of court houses and jails, as if those expenses were to- be treated as exempt from the operation of amendment No. 11. But near the conclusion of the opinion the court seems to treat the different Words of restriction- as synonymous, and to hold that the restriction applies only to the making of allowances or issuance of warrants during a given fiscal year, land not to the making of contracts for payments extending over a series of years. I do not agree to either of those theories, for I can find in the constitutional amendment no exemption whatever of any kind of expense, and it seems to me that the language is too broad and emphatic to restrict the prohibition to the mere allowance of claims 'and the issuance of warrants thereon. The language not only fails to mention any exemptions from its operations, but on the contrary it contains words of great emphasis in applying the restriction to contracts or allowances “for any purpose whatever,” showing that the framers of the amendment intended no exemption. If, forsooth, there are any exemptions, I scarcely see how they can be limited to the cost of constructing court houses and jails, for there are other public buildings in counties and municipalities which are just as essential to orderly government and to the protection of the health and welfare of the people. Other emergencies may arise which are just as important as the construction of court houses and jails. Then why should there be declared ah implied exemption as to court houses and jails? There is not a word anywhere in the Constitution with reference to the construction either of court houses or jails. However essential those buildings are to government, the construction and maintenance of them is treated, by silence on the subject, merely the same as other expenses.

The case of Hilliard v. Bunker, 68 Ark. 340 (cited by the majority and which merely followed the decision in Durritt v. Buxton, 63 Ark. 397), involved the construction of statutes, to determine whether a general statute repealed a prior special one, and the decision has no bearing, I think, on the interpretation of amendment No. 11.'

The Constitution of 1874 restricted taxation in counties to one-half of one per cent, “for all purposes.” If the cost of construction of court houses and jails is exempt from tlie operation of amendment No. 11, then it can be urged with equal force that those extraordinary expenses of government are exempt from the operation of the constitutional restriction as to the amount of taxes; and yet never once during- the fifty years since the adoption of the Constitution of 1874 and amidst all the difficulties encountered since then in the construction of public buildings ¡by counties, has any one appeared with spirit so bold as to make any such contention. The counties have all built court houses and jails without violating-the Constitution with respect to the limit of taxation.

Turning to the 'other thought expressed in the opinion of the majority, namelv, that the language of the amendment permits the making of contracts for the construction of court houses and jails, if the cost is spread over a term of years so as to limit the total expense each year to the revenues thereof, it seems to me that the position of the majority is equally untenable. If contracts may thus be made for the construction of court houses and jails, why may not any other contract fox-legitimate expenses be made, regardless of cost, if it is spread over a term of years? If, in other words, the prohibition extends only to the allowance of claims for the issuance of warrants, why cannot such a contract be made for anv other legitimate expense? There is no distinction, as I have already said, to be found in the language of the amendment. If that interpretation of the contract is true, then the county court or town council can make as many contracts as they see fit for future payments, thus incurring unlimited obligations, if they do not make allowances or issue warrants in excess of the revenues for the fiscal yean With all respect for the opinion of my brethren, I cannot bring myself to believe that the framers of the Constitution intended any such result. It is contrary, I think, to the plainest sort of language used. That interpretation eliminates the word “contract” entirely from the amendment and gives no force or meaning to it whatever. T see no escape from the conclusion that the language of the amendment plainly means just what it says — that no contract nor any allowances nor any issuance of warrants shall be made during the fiscal year in excess of the revenues for that year. It means that counties and municipalities that are to be lifted out of debt by the provisions of this amendment must stay out of debt— must not incur indebtedness for any purpose whatever in excess of the revenues for the fiscal year. Now, a valid contract creates an obligation — a debt — no matter when it is payable. The debt is not paid by postponement. It still remains an obligation. Let us consider for a moment the illustration made by the majority in the conclusion of the opinion. When Lonoke County turns into the second fiscal year after making’ the contract for the construction of the court house1, the contractor immediately presents to the county court his claim for the second payment of $10,000. He has a legal right to do that under the opinion of the majority, and the county court is bound to issue him,a warrant, regardless of other anticipated expenses. If the contract thus made is valid, the county court can be compelled to allow the claim and issue a warrant therefor. The result will he that the restriction is not placed upon the allowance for the cost of the court house, but it restricts the amount of general expenses of the county, regardless of the necessities which may subsequently arise. In other words, under the restriction made by the majority in the opinion, the county cannot expend more than $50,000, regardless of necessities. It is thus seen that this contract for future payment supplants the payment of ordinarv exnenses, and, after all, leaves the county in debt. But the illustration made by the majority is not apt for the reason that, if there is no constitutional restriction upon the making of a contract for future payments, then it is within the power of the county court to make any contract for future payment regardless of amount, and the only restriction upon the allowance of the claim in future years is the total amount of revenues for that fiscal year. It is therefore within the power of the county court to burden the county for debts payable in the future which would exclude all other necessary expenses of the county. It cannot be determined or even estimated, until the assessments are made and taxes levied, what the revenues for a fiscal year will 'be; that is only determined by an ascertainment of the total ■amount of the assessments when the quorum court meets, and there is a levy of taxes to meet the appropriation. How can it be known in future years what the amount of the revenues is going to 'be? It is thus seen that this interpretation of the language of the Constitution involves us in a mass of uncertainty, which clearly demonstrates to my mind that the framers of the amendment never intended any such result, but, on the contrary, they used plain language which means just what it says.

The majority seek justification for a departure from a literal'application of the language of the amendment by saying that “it would prevent the expenditure of surplus revenue by a county, city or town to construct a building which would exceed the. revenue of asingle year. ’ ’ I scarcely think that any one would put such a narrow construction as that on the language so as to prohibit the spending of accumulated surplus. It requires no strained interpretation to say that the term “revenue from all sources for the fiscal year,” is broad enough to include accumulated surplus. By such accumulations, public buildings may be constructed and paid for without making a contract in excess of revenues' for the fiscal year, and this method would, in the language of the amendment, keep the counties on a''“sound financial basis” — that is to say, out of debt.

Reflection upon the events of the past — -the financial history df the counties and municipalities of the State —makes plain what was in the minds of the framers of amendment No. 11 and the people who voted upon it. When the Constitution of 1874 was framed, most of the counties of the State and many of the municipalities were heavily in debt and scrip was at a discount. Thisprompted the framers of the Constitution to put in a provision permitting counties and municipalities to issue interest-bearing bonds and to levy an additional rate of taxation to cover indebtedness which, existed at the time of the adoption of the Constitution. But it was thought necessary, in order to keep the counties out of debt, to put in a provision absolutely prohibiting counties and municipalities from issuing interest-hearing evidences of debt in the future. It was doubtless in the minds of the framers of the Constitution that the counties and cities would keep out of debt. This proved to be a vain hope. They did not keep out of debt, and it was found that there was no provision in the Constitution to prevent them from going in debt. Notwithstanding the inhibition against issuing interest-bearing evidences of debt, counties and municipalities found a Way to'float future evidences of indebtedness without there appearing upon the face of the obligations a provision for the payment of interest. Many of the counties again got heavily in debt, as well as the larger cities of the State, and there has been an urgent demand for the enactment of a constitutional amendment permitting counties and cities to issue -bonds. The people in subsequent elections demonstrated their unwillingness to confer upon counties and municipalities a con-tinning power to issue bonds, but at last by amendment No. 11 they conferred authority to issue bonds and levy additional taxes for the purpose of paying indebtedness existing at the time of the adoption of the amendment. It was intended to carefully guard the situation by not only prohibiting counties and cities and towns from issuing more scrip than could be absorbed by the revenues for a given fiscal year, but they put in this provision prohibiting contracts which would incur indebtedness in the future.

It seems to me that the interpretation now placed upon the language of the amendment thwarts the expressed will of the people who framed the amendment and adopted it. The decision of the majority is, I must say — though I say it with great respect — ^founded upon the doctrine of necessities, that is to say, what appears to them to be the necessities of the situation. It is another verification of the maxim' that “necessity hath no law.”


author: Humphreys, J.

text:
    Richardson v. State.
    Opinion delivered June 29, 1925.
    1. Bail — erroneous entry op discharge. — Where defendant pleaded guilty, whereupon the cause was continued and the pronouncement of sentence was suspended -.until a subsequent term, and the surety was -ordered to stand on his present bond for defendant’s appearance at such term, the clerk’s erroneous entry of judgment that 'defendant was placed in the sheriff's custody, with orders to present him to court at such term for -sentence, did not transfer him from custody of the bail1 to that of the officers, so as to discharge the surety on his bail bond, nor estop the State from claiming a forfeiture of his bond.
    2. Courts — correction op record. — It is within a court’s discretion to enter a nunc pro tunc judgment connecting the record at a subsequent term, in criminal -as well -as civil oases.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Joe Joiner, for appellant.

      A. I). Pope,, for appellee.
   Humphreys, J.

Leon Richardson, the -son of appellant, was indicted at the February term of the Columbia County Circuit Court for the crime of having a still and mailing mash. He was subsequently arrested and gave a bond conditioned for his appearance in -said court on the 7th day of February, 1923; and, if convicted, to render himself in execution thereof; and, failing to perform either of said conditions, to pay the State of Arkansas the sum of. $500. Appellant signed the bond as surety. On the 19th day of February, 1923, the same being a day of the February, 1923, term of said court, Leon Richard-soil appeared in court and entered a plea of guilty to the crime, whereupon the cause was continued, and the pronouncement of sentence was suspended until the August, 1923, term of said court, it being ordered that León Bichardson remain and stand on his present bail bond for his appearance at that time. Through a misprision of the clerk, a purported judgment was entered of record to the effect that Leon Bichardson appeared in court at the February, 1923, term thereof, pleaded guilty, was placed in the custody of the sheriff, and the sheriff was ordered to present him to the court at the August term for sentence. As a. matter of fact, Leon Bichardson was not delivered to the sheriff nor ordered into the custody of the sheriff by the court. He did not appear at the August, 1923, term of court, and forfeiture was declared upon the bond. A summons was issued upon the forfeiture against appellant, returnable at the next term of court. In response to the summons, appellant filed an answer interposing as a defense the judgment which had been erroneously entered of record by the clerk. The prosecuting attorney then moved for and obtained a nunc pro tunc judgment, correctly reflecting the order which was actually made by the court, and used same as a basis upon which to procure judgment against appellant upon the bond. Appellant has prosecuted an appeal to this court from the judgment obtained against him on the bond, claiming that it should be reversed upon the alleged grounds: first, that the' entry of the judgment by the clerk effected his discharge upon the bond; and, second, that the court was without power to enter the nunc pro tunc order correcting the judgment which the clerk erroneously entered.

Appellant relies upon the case of Ford v. State, 100 Ark. 515 in support of his first contention for a reversal of the judgment. In that case, the defendant entered a plea of guilty; and at the same1 term' of court was adjudged to pay a fine of $100. The execution of the judgment was suspended until the next term of court. The effect of this proceeding was to take the defendant out'of the custody of the bail and place him in the custody of the proper officers of the law. In the instant case, no judgment was rendered against Leon Richardson. He entered a plea of guilty, ‘and, by agreement, the cause was continued until the August term of court for judgment and sentence. Had he appeared at the August térm, he might have withdrawn his plea of guilty by the permission of the court. Joiner v. State, 94 Ark. 198. No final judgment was rendered against him when he entered his plea of guilty as in the Ford case. There was not only a continuance of the cause, but he was held upon his bond to the August term of court. The entry of an erroneous judgment by the clerk could not have the effect of transferring Leon Richardson from the custody of the bail to the custody of the officers. The authority to do this rested solely in the court. The entry of an erroneous order by the clerk could not estop the State from claiming a forfeiture of the bond and enforcing the-penalty therein against the sureties.

It is within the sound discretion of a court to enter nunc pro tunc judgments to cause the record to speak the truth at subsequent terms of court in criminal- as well as in civil cases. Goddard v. State, 78 Ark. 226.

No error appearing, the judgment is affirmed.


text:
    Allen v. Thompson.
    Opinion delivered June 29, 1925.
    1. Principal and agent — ratification—Where a purchaser accepted and retained a deed conveying -a fourth interest in mineral royalties, instead of demanding a return of his money and oifering to reconvey because of the vendor’s failure to convey a half interest therein according to a previous oral agreement, he will be held to have ratified his agent’s action in closing the deal on the basis of a one-fourth interest, and cannot sue for specific performance of such oral contract.

      2. Contracts — modification of original contract. — One cannot close a contract on terms known and understood by both parties, and afterwards insist upon a different contract simply because it conformed with the original1 understanding, as parties have a right tó change or modify their contracts by mutual agreement before consummation thereof.
    3. Mines and minerals — check not contract. — A check given for royalties, containing a notation that it is for “one-half royalties on” two described tracts of land held mot a written contract for half royalties on both tracts, but merely evidence of payment of sum named for one half royalty in one and one-fourth royalty in the other, as expressed in the two deeds.
    4. Frauds, statute of — sale of mineral royalties — oral contract. —An oral contract for the sale of a half interest in mineral royalties in land is within the statute of frauds; the check and deeds, executed in consummation of the contract not constituting a written executory contract.
    Appeal from Columbia Chancery Court; J. T. Stevens, Chancellor;
    reversed.
    Appellant pro se.

      Henry Stevens and E. A. Upton, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the chancery court of Columbia County to enforce the specific performance of an alleged contract for the sale and purchase of an undivided one-half interest in the royalty of all the oil, gas, and other minerals on and under a certain seventy-acre tract of land in said county by reforming one of the deeds of conveyance. The land was conveyed by appellant to appellee in two deeds, one conveying an undivided one-half interest in said royalty upon and under sixty acres of said tract, and the other an undivided one-fourth interest in said royalty upon and under ten acres of said tract. It was alleged that, through, mutual mistake, an undivided one-fourth interest of the oil, gas, and other mineral, instead of an undivided one-half interest, in the ten-acre tract was conveyed hy appellant to appellee.

Appellant filed an answer denying that a mistake had been made in the quantity of royalty conveyed in the ten-acre tract, and, by way of further defense, alleged that the contract for the sale and purchase of. said royalty was verbal and void as being within the statute of frauds.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a finding that, by mutual mistake, the deed to the ten-acre tract conveyed an undivided one-fourth interest in said royalties, instead of an undivided one-half interest therein, and decreed a reformation of the deed so as to convey a one-half interest in said royalties. The court further found that one-half of the royalty from the oil produced belonged to appellee, and decreed that he have and recover one-half of the royalty of the oil heretofore produced, from which findings and decree, an appeal has been duly prosecuted to this court. The testimony is conflicting as to whether appellee contracted with appellant to purchase an undivided one-half interest in the oil and mineral royalties in the ten-acre tract, but there is no conflict relative to the quantity of royalty entering into the deal as finally agreed upon and consummated. The undisputed evidence reflects that appellee selected Harnwell & Young, a firm of attorneys at Stephens, as his agent to purchase appellant’s royalty rights in the seventy-acre tract, and placead a check in their hands for $2,200 with which to pay appellant for said royalties if the abstract showed good and sufficient title in him. The check was written by Harnwell and contained the following notation in the left-hand corner, to-wit:

One-half royalty on SE^ and SW]4 NW14 'SE14 and SW^ SE%, all in sec. 23, twp, 15 S., rge. 20 W.” On examination of the abstract, it was discovered that appellant only owmed an undivided one-fourth interest in the royalties upon and under the ten-acre tract. After making this discovery, Harnwell prepared two deeds, one for an undivided one-half interest in the royalties in the sixty-acre tracts and the other an undivided one-fourth interest in the royalties in the ten-acre tract. These deeds were executed by-appellant and delivered to Harnwell in exchange for the check which he indorsed land collected. Harnwell placed the deeds of record and sent them to appellee, explaining that he had closed the deal upon the basis of $'2,200 for an undivided one-half interest in the royalties in the sixty-acre tract, and an undivided one-fourth interest in the' royalties in the ten-acre tract. Appellee accepted and retained the deeds, and by so doing ratified the action of his agent. Unless he intended to abide by the sale and purchase of the royalties made by his agent, he should have repudiated the transaction by demanding a return of his money and offering to reconvey the royalties in said lands to appellant. It is true that he requested his agent several times to get the other undivided one-fourth interest in the ten-acre tract from appellant, claiming that he was entitled to it under the original agreement, but at that time he knew his agent had closed the deal with appellant upon the basis of $2,200 for an undivided one-half interest in the royalties in the sixty-acre trajct, and an undivided one-fourth interest in the royalties in the ten-acre tract. Oaie cannot close a contract upon terms known and understood by both parties, and afterwards insist upon a different contract simply because same was in conformity with the original understanding between the parties thereto. Parties have a right to change or modify their contracts by mutual agreement before consummation of same. Appellee attempts to uphold the decree of the trial court upon the theory that the only contract which could be consummated between appellee’s agent and appellant was expressed in the check. The check was not in substance or form a contract between the parties. It did not purport to be a contract. It was merely' an evidence of the payment of the sum named therein for the royalties expressed in the two deeds. The court erred in treating the check as a written contract between the parties. The contract, if any, between the parties was. oral and non-enforceable as being witbin tbe statute of frauds. Tbe check and tbe two deeds were instruments executed and delivered in consummation of tbe contract, and were not themselves in any sense a written executory .contract.

On account of tbe error indicated, tbe decree is reversed; and the cause is remanded with directions to dismiss appellee’s bill for tbe want of equity.


author: McCulloch, C. J.

text:
    Security Bank & Trust Company v. Costen.
    Opinion delivered July 6, 1925.
    1. Executors and administrators — funeral expenses. — The estate ■ of .a deeendent is chargeable with the reasonable and necessary-expenses of interment of the body, in keeping with his circumstances and standing when in life.
    2. Dead bodies1 — duty to provide burial. — The duty to provide a decent burial rests upon the living, and from this duty springs a legal obligation of the'decedent’s estate to pay the expenses.
    3. Executors and administrators — burial expenses as charge.— If the person who incurs burial expenses or who advances money to pay therefor is not a mere volunteer who acts officiously and without interest in the estate of the deceased, the expense incurred on money* advanced for burial is a charge against the estate, which inures to the benefit of the person so incurring or advancing it.
    4. Executors and administrators — burial expenses — payment by widow. — Payment by a widow of the funeral expenses of her hsuband did not discharge the obligation of .the estate, but constituted a mere transfer of his obligation to her by way of subrogation.
    5. Wills — liability of devisee to pay debts of estate.' — The widow of decedent was entitled to enjoy the portion of her husband’s estate devised to her without assuming any obligation to pay the debts of the estate, where the will did not impose any such obligation upon her.
    Appeal from Green Circuit Court; W. W. Bandy; Judge;
    reversed.

      M. P. Huddleston and Hamilton E. Little, for appellant.

      Jeff Bratton, for appellee.
   McCulloch, C. J.

Appellee’s decedent, W. C. Greathouse, died in Greene County, Arkansas; on March 12, 1923, leaving surviving his widow, Emily C. Great-house, and several children and leaving a last will and testament, by which he devised to his wife, Emily C., his lot and dwelling house in the city of Paragould “for and during her natural life, and at her death, if undisposed of, then to my heirs hereinafter named,” and also bequeathed to her “all the household and kitchen furniture, beds and bedding, cooking utensils, etc., now used by us in keeping house and the sum of $135 in money. ’ ’ Directions were made in the will for the payment to a lodge of Odd Fellows the sum of $100 out of the proceeds of a life insurance policy, and the will contains a residuary clause devising and bequeathing the residue of the estate to the children and grandchildren of the testator. The will also contains a clause conferring power upon the devisee, Emily 0. Greathouse, to mortgage the property devised “if necessary to raise money for her reasonable support and maintenance during her natural life.” No appointment of an executor was made in the will.

The next day after the burial of deceased the widow, Plmily C. Greathouse, paid the necessary funeral expenses, amounting to $210. She died on October 12, 1923, and appellant was appointed administrator of her estate. The claim was presented by appellant for the estate of his decedent against the estate of W. 0. Great-house, appellee having been appointed administrator of that estate, and the claim was allowed and classified by the probate court, but on appeal to the circuit court the trial of the issues resulted in a judgment in favor of appellee and against appellant for the allowance of the claim.

It goes without question that the estate of a decedent is chargeable for the reasonable and necessary expenses of interment of the' body — a ceremonial interment in keeping with the circumstances and standing of the deceased when in life. The duty rests upon some of the living to see that the right of decent burial is provided, and from this duty springs a legal obligation of the decedent’s estate to pay the expenses. Patterson v. Patterson, 59 N. Y. 574. If the person who incurs the expense or advances the money to pay it is not a mere volunteer who acts officiously and without interest in the estate of the decedent, the charge against the estate inures to his or her benefit. This principle was announced by this court in the case of Brearly v. Norris. 23 Ark. 166, and the principle has been recognized by many decisions in other States. Jenks v. Terrell, 73 Ala. 238; France’s Estate, 75 Pa. St. 220; Brown v. Forst, 95 Ind. 248; In re Skillman’s Estate, 146 Iowa St. 601; Constantinides v. Walsh, 146 Mass. 281. Under the circumstances of this case, it cannot be rightly said that the widow was a mere volunteer and acted officiously and without interest in paying the funeral expenses of her deceased husband. The payment was in settlement of the claim of the undertaker, which would have been a legal claim against the estate, and the act of the widow in making the payment was not a discharge of the obligation of the estate, but was a mere transfer of the obligation by way of subrogation to the widow. The last will and testament of the deceased husband did not cast upon the widow the burden of paying the debts of the estate, and «he was therefore under no obligation to pay the debts out of her own estate or out of the interest which she took under the will of her husband, for no such condition or burden was imposed upon her by the terms of the will. Wisner v. Richardson, 132 Ark. 575. Nor did the mere fact that the widow was authorized-in addition to her life estate in the real property devised to sell or mortgage the property in fee to raise the money for her maintenance create any obligation to pay the debts of the estate. She was entitled to enjoy the portion of the estate devised and bequeathed to her, without assuming the obligations to pay the debts, unless such obligation was imposed by the language of the will itself.

The judgment of the circuit court was therefore erroneous, and the same is reversed and the cause remanded for a new trial.


text:
    Keith v. Fowler
    Opinion delivered July 6, 1925
    1. Sales — breach op warranty — jury question. — Wheré, in an ■action for breach of a contract for sale of a carload of hay, there was conflicting evidence as to the quality of the hay;- it was error not to submit to the jury the issue as to whether there had been a breach of express warranty as to quality by the seller.
    2. Sales — breach op warranty — remedies.—Where there was an express warranty in the sale of hay, the purchasers did not waive a breach thereof by acceptance of the hay, for they had the right to retain the hay and sue on the warranty or recoup the damages when sued for the price.
    3. Sales — breach op warranty — remedies.—Purchasers of a carload of hay, upon discovery that the hay was not of the quality it was warranted to be, had a right to reject the whole shipment and defend on that ground when sued for the price.
    4. Sales — breach op warranty — remedies.—Where purchasers of a carload of hay, which was of stipulated quality, after unloading and disposing of a part of it, found that the remainder of the ■hay was of inferior quality, they could reject the portion not up to the standard, and, when sued for the price, recoup their damages.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    reversed.

      Joe Joiner, for appellants.

      Paul Grumpier, for appellee.
   McCulloch, C. J.

Appellants, Jim Keith and H. T. Dickens, are country merchants doing business in Columbia County, at the village of Bussey, and the railroad shipping point is Taylor, a station on the line of the Louisiana & Arkansas Railroad Company. Appellee is engaged in the wholsale hay and grain business at Kansas City, Missouri, and on February 28, 1923, sold and shipped to appellants, under written contract of sale, a carload of hay designated as choice green alfalfa. The contracts specified, “Weights and grades guaranteed, inspection allowed, delivered at your station.” The shipment was made by rail, and appellee drew on appellants through a bank at Taylor, Arkansas, with the bill of lading attached. Appellants opened the car, unloaded about one-third of it, and distributed it among their customers, who hauled it away from the car as fast as it was taken out. Appellants testified that when they opened the car they found that a portion of the hay next to the door was of the grade specified in the contract, and, on the assumption that the whole car was of the same grade, they proceeded to unload the car into the wagons of their customers, and did not discover the difference in quality of the hay until they had unloaded nearly a third of the car. The balance of the hay was found to be of a.very low grade and most of it entirely unfit for use. They refused to receive it, and appellee 'brought suit to recover $396.92, the price of the hay.

Appellants pleaded the contract of guaranty and breach thereof by furnishing worthless hay below the grade specified in the contract, and the issues were tried before a jury.

Appellants testified themselves as before stated, and proved by other witnesses that all of the hay was unfit for use except the portion packed near the door, and that, as soon as they discovered the quality of the hay, they refused to accept it, but that it was impraeticable at that time to call back tbe portion which had been loaded into wagons and hanled away. One of the witnesses for appellants also testified that he examined the car in which the hay was shipped and found that it had a good roof, and that the hay could not have been damaged in transit.

Appellee testified that the hay was of the grade specified in the contract and was in good condition when it was shipped. Other witnesses introduced by appellee testified to the same effect, and the evidence was sufficient to warrant a finding either way as to the condition of the hay.

.Appellants requested instructions submitting the issue to the jury as to whether or not there was a breach of the contract of warranty as to the quality of the hay, but the court refused to submit this issue to the jury, and, on the 'contrary, gave a peremptory instruction in favor of appellee.

The contract of sale was in writing, and there is no dispute as to its terms. It plainly provides for a warranty by the seller of the quality of the hay. There was an issue of fact in the case as to whether or not there was a breach of the contract by reason of the hay being below the specified grade. The testimony was conflicting on that issue, and it should have been submitted to the .jury under appropriate instructions. The court erred in taking that issue away from the jury by a peremptory instruction. In the case of Courtesy Flour Co. v. Westbrook, 146 Ark. 17, we said: “The law on the subject is that where chattels are purchased under express warranty as to quality, the purchaser may rescind on discovering the inferior quality of the article sold, but is not bound to do so, and, on the contrary, may retain the articles purchased and sue on the warranty or recoup the damages when sued for the price. In case, however, the contract is to deliver goods of a particular description or quality without express warranty, and the purchaser accepts them after inspection and discovery of the inferior quality, or after having had a fair opportunity to make such inspection, he waives the right to claim damages for defects or inferiority of the goods sold.” In this case, as we have already said, there was an express warranty, hence appellants did not waive the breach by acceptance of the hay, for they had the right to “retain the articles purchased and sue on the warranty or recoup the damages when sued for the price.” They also had the right, on discovery of the condition of the-hay, to reject t'he whole shipment and defend on that ground when sued for the price. Notwithstanding the acceptance of a portion of the hay which was of a quality in accordance with the stipulations of the contract, they had the right to reject the remainder as soon as the discovery was made that it was below the standard and was worthless. In either event, if, as appellants contend, the hay was below the standard specified in the contract and was worthless, they had a right to recoup their damages when sued for the price.

For the error in giving the peremptory instruction, the judgment is reversed, and the cause remanded for a new trial.


text:
    Road Improvement District No. 2 v. Shifflett.
    Opinion delivered July 6, 1925.
    Highways — improvement district — vote op electors. — Act No. 5 of Ex. Session 1923, § 25, prohibiting road improvement districts from making improvements unless authorized by the majority vote of the landowners in number and value, held applicable to the improvements authorized by Sp. Acts 1923, Nos. 248, 311, authorizing Road Improvement District No. 2 of Lonoke County to improve five laterals to the main road which had been completed, as such lateral roads must be treated as new projects, and not within the exemption in act No. 5, supra.

    Appeal from Lonoke Chancery Court; John E. Martin eau, Chancellor;
    affirmed.

      ■Chas. A. Walls, for appellant.

      Gray <& Morris, for appellee.

      Rose, Hemingway, Cantrell é Loughborough, amici curiae.

   McCulloch, C. J.

Road Improvement District No. 3 of Lonoke County was created by special act of the General Assembly of 1913 (Act No. 212) for the purpose of improving certain roads considered to be a unit of the improvement,- and pursuant to the organization the board of commissioners laid out the system of roads contemplated in the statute and improved the same and borrowed the sum of $120,000, for which serial bonds were issued. The improvement was completed, and nothing remained to be done but to collect the taxes and pay off the bonds.

The General Assembly at the regular session of 1923 enacted two special statutes authorizing Road Improvement District No. 2 of Lonoke County to improve five laterals annexed to the main road. There was a legislative finding that the roads originally improved, together with the laterals annexed by the statute, would constitute a single unit of improvement. Neither of those statutes contained any provision for submitting the project to a vote of the property owners. Nothing has been done under that statute towards constructing the improvement except to employ an engineer to make plans, and it was ascertained that the cost of the improvement wou-ld be $124,620.55, which is in excess of the cost of the original improvement.' The board of commissioners are about to proceed with the improvement and with the issuance of bonds and re-assessment of benefits for the purpose of raising additional funds to pay for the improvement, and appellee, who is an owner of real property in the district, instituted this action against the board of commissioners to restrain the latter from proceeding with the improvement without first holding an election for the purpose of ascertaining the will of the majority of the owners of property, as provided in § 25 of the general statute enacted at the extraordinary session of 1923. Section 25 of the general statute just referred to reads, in part, as follows:

“The commissioners or directors of any road improvement districts created by special acts of the Legislature enacted since the session of the General Assembly in the year 1915, except St. Francis River Road Improvement District of Poinsett County, Arkansas, and St. Francis River and Bridge Road •Improvement District, Poinsett County, Arkansas, that have not, at the time of the passage of this act, let any construction contracts, actually done construction work, or issued, sold or delivered to the purchaser thereof any bonds of the district, shall not proceed with the construction of the improvements under their charge, and shall not issue any bonds to secure funds therefor, unless a majority in number and in value of the landowners in fee simple in such district, voting at the election provided for in this act, shall express by their ballots • a desire that the construction of such improvements be proceeded with. (Here follow provisions for giving notice and holding the election.) This section of this act shall not apply to improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or an election to ascertain their will, or to those districts where actual construction work has been begun or contracts therefor have been made, or bonds sold and delivered and are outstanding, before the passage of this act.”

The chancery court granted the relief prayed for by appellee and entered a decree accordingly, from which an appeal has been prosecuted to this court.

The sole question in the case is whether or not the new improvement authorized by the special statutes of 1923 comes within the exemption of the general statute enacted at the extraordinary session so as to permit the new improvement to be done without obtaining the consent of the majority of the owners of property in the district. The argument of counsel for appellant is that the general statute has no application because Hoad Improvement Distinct No. 2 of Lonoke County was not created by a special act since the legislative session of 1915, and that the district falls within the exemption specified in the general statute for the reason that “actual construction work has been begun or contracts therefor have been made, or bonds sold and delivered and are outstanding before the passage of this act.” It is literally true that Road Improvement District No. 2 of Lonoke County was not created since the year 1915, but we think it would be too strained a construction of the statute to hold that it had no application to that district, which was, in fact, originally created by statute prior to the year 1915, but which had entirely completed the improvement then authorized to be constructed. The lawmakers could, in the original statute creating the district, have included the laterals now under consideration as a single unit of improvement, and the Legislature had the power subsequently, even after the completion of the original improvement, to add to the unit by annexing the laterals. But, interpreting the general statute of 1923, sufra, and giving it the meaning which its framers obviously intended, the annexation of those laterals after the completion of the original improvement must be treated as a new project and in effect the creation of a new district, so far as concerned the application of the requirement to submit the project to a vote of the landowners. The same may be said with reference to the exemption in regard to actual construction'work and the issuance of bonds. The plain purpose of the framers of the statute was to exempt from its operation incomplete districts, but the very purpose of the statute would be defeated if the addition of new improvements to a district which had completed its work would escape the effect of the general statute requiring a submission to the property owners. The new improvement was entirely separate, so far las actual construction is concerned, and there had not been, at the time of the enactment of the general statute referred to above, any act of construction work done or contract therefor or any bonds sold or delivered to cover the new improvement.

Our conclusion in this case is not at variance with the decision in the case of Massey v. Arkansas & Missouri Highway District, 163 Ark. 63. In that case the original improvement had been partly constructed and. bonds issued and the money spent, and a new statute was enacted changing the route of the road. The original improvement was incomplete. We held in that ease that the general statute of the session of 1923 had no application, but in that case the road was, as before stated, incomplete, .and there were outstanding bonds of the district. In that case the facts did not come either within the letter or spirit of the statute, but in this case we think that the statute, fairly interpreted, covers the additional improvement sought to be annexed. We think that the statute applies, and that the commissioners of the district have no authority to proceed until an election has been held in accordance with the provisions of the general statute, supra.

Decree affirmed.


author: Wood, J.

text:
    Erwin v. Kerrin.
    Opinion delivered July 6, 1925.
    1. Lost instruments — burden of proof. — One who claims title under an instrument alleged to have been lost has the burden of establishing the execution, contents and loss of such instrument by the clearest, most conclusive and satisfactory proof.
    2. Lost instruments — sufficiency of proof. — Evidence held to be insufficient to establish the toss of a 'deed.
    Appeal from Prairie Chancery Court, Northern District ; A. L. Hutchins, Chancellor on exchange;
    reversed.

      W. A. Leach, for appellant.

      J. N. Rachels, for appellee.
   Wood, J.

Jesse Martin died in the year 1872. At the time of his death he owned a large body of land in Prairie County, Arkansas, including therein a tract consisting of two hundred and forty acres. He left a widow Narcissa Martin, and four children, Joseph Martin, Lizzie Martin Langford, Artimissa Babb (nee Martin, now McDaniel), and Ab Martin, as his only heirs at Jaw. Joseph Martin died in 1905 or 1906, leaving surviving his widow, now Annie Kerrin, and one daughter, Viola May Martin. Viola May Martin died April 9, 1915, leaving her .surviving, Lizzie Langford, Ab Martin and Artimissa McDaniel as her sole and only heirs at law. The two hundred and forty acres of land were allotted to Narcissa Martin, the widow of Jesse Martin, as her dower interest in his lands. The reversionary interest in these lands was sold at administrator’s sale to pay the debts of Jesse Martin. Narcissa Martin, the widow of Jesse Martin, died in 1906. Soon thereafter suit was instituted by those who had purchased at the administrator’s sale to quiet the title. Lizzie Langford, Ab Martin, Viola May Martin and Artimissa Babb (now McDaniel) intervened, claiming the land as the heirs of J esse Martin, and Annie Martin (now Annie Kerrin, the appellee) intervened claiming dower as the widow of Joseph Martin. A decree was rendered in that action vesting title to the lands in Lizzie Langford, Viola May Martin, Ab Martin and Artimissa Babb (now McDaniel).

Artimissa McDaniel and Ab Martin conveyed by quitclaim deed to W. A. Leach; Leach and wife conveyed by warranty deed to A. L. Erwin; Artimissa McDaniel also conveyed by quitclaim deed to A.. L. Erwin: C. C. McDaniel, administrator of the estate of Ab Martin, also executed an administrator’s deed to the estate of Ab Martin; Lizzie Langford (nee Martin) executed a quitclaim deed to W. A. Leach on the 7th of July, 1917, and on the 21st day of July, 1917 Leach and wife conveyed this interest to A. L. Erwin. By these conveyances Erwin became the owner of all the lands mentioned except the dower interest of Annie Kerrin (nee Martin).

On the 5th of May, 1922, the appellee instituted this action. She alleged in her complaint that she was the widow of Joseph Martin, one of the heirs of Jesse Martin, deceased; that Joseph Martin, at the time of his death, was the owner of an undivided one-third interest in the lands and that he left surviving him his widow, Annie Martin (now Annie Kerrin), and one child, Viola May Martin; that Viola May Martin -died without issue, and that upon her death the -appellee became seized and possessed of the one-third interest as the sole and only heir of Viola May Martin. In November, 1922, the appellee filed an amendment to her complaint in which she alleged that Joseph Martin had executed to the appellee a deed conveying to her all of his interest in the lands mentioned, and alleging that by virtue of such deed she was an owner of an undivided one-fourth interest in the lands. She further alleged that the deed from Joseph Martin to her had been lost or destroyed and could not be produced; that Erwin was in possession of her interest in the lands, and that the lands were estimated to be of the value of $10,000; that Erwin had been in possession thereof for more than ten years receiving rents and profits, and that he refused to deliver possession or to allow a sale of the lands for partition. She prayed that the lands be partitioned.

She was joined in her amended complaint by Homer L. Martin and Thomas W. Martin, minors, through their next friend and mother, Siretha Martin Harrison, claiming that they were the sole heirs of A. Martin, and entitled as such to an undivided one-fourth interest in the lands. They prayed that they recover of the appellant their interest and for all proper and general relief. The answer of Erwin denied the material allegations of the complaint as to the alleged title of the plaintiffs and set np that he was the owner of the lands under the chain of title above set forth.

The court, at the hearing, entered a decree dismissing the complaint of Siretha Martin Harrison as the next friend of Homer and Thomas Martin, minors, without prejudice to their interests. The court also entered a decree adjudging that Annie Kerrin is the owner of an undivided one-fourth interest in the lands described in the complaint and decreed as SW14 section 29 and north half of NW1^ of section 32, township five north, range four west, containing 240 acres, more or less. The court further appointed a master to state an account of the rentals and proceeds from the land, and ordered that the land be sold and the proceeds partitioned between A. L. Erwin and Annie Kerrin, and retained control of the cause until further order of the court. There is no appeal from the decree of the court' dismissing the complaint without prejudice to Homer and Thomas Martin, through their mother and next friend, 'Siretha Martin Harrison, and that branch of the case passes out. A. L. Eiwin duly prosecutes this appeal.

While the pleadings and the testimony are voluminous, there are really only two questions presented by this appeal. First, has Mrs. Annie Kerrin (hereafter called appellee) established her title to an undivided one-fourth interest in the lands in controversy through a deed alleged to have been executed and delivered to her 'by her husband, Joseph Martin; and, second, was Erwin (hereafter called appellant) an innocent purchaser for value?

The appellee testified in substance that Joseph Martin was her first husband. ■ He deeded to her an undivided one-fourth interest to the lands described in the complaint. Dr. Burney wrote the deed, and her husband brought it home and gave it to her. The last time she saw the deed was when she gave it to J. N. Rachels, her attorney. She didn’t know where the deed was until she went to hunt up some deed of her father’s estate in Mississippi and found this deed in his hook over at appellee’s brother’s house in her father’s trunk. She was handed a book and stated that that was the book referred to. After she found the deed her brother, Lige Babb, and nephew, Connie Babb, saw it and heard it read. Appellee was claiming such rights as she had under that deed. She employed Mr. Leach, and when she told him that she was only claiming a dower interest she meant such rights as she acquired under the deed from her husband. She told Mr. Leach such facts as she knew, and he had looked after her interest for nearly ten years. Soon after the Supreme Court decided the case conferring the title of the Jesse Martin heirs, Leach reported to the other heirs that witness had died. Since the death of Joseph Martin, her husband, neither Ab Martin nor Mrs. McDaniel had claimed any interest in that part of Jesse Martin’s estate which belonged to her husband, Joe Martin, and which he deeded to the appellee.

Mrs. Siretha Martin Harrison testified that she had seen a deed from Joseph Martin conveying his interest in the Jesse Martin estate to his wife, Annie Martin, Witness understood that she had a deed to Joe Martin’s part of the estate.

Mrs. McDaniel testified that Jesse Martin was her' father. She had two brothers, Ab and Joe, and one sister, Lizzie, who, with witness, were his sole heirs. In 1905 a suit was brought by Mr. Leach to recover the interest of the heirs in their father’s estate. Neither the witness, nor Ab Martin, nor Lizzie Langford claimed any interest in Joe Martin’s land. Appellee was his wife, and she had a child by him. They were both dead, and witness thought appellee was entitled to Joe’s interest in the land. Appellee didn’t receive any pay for such interest, and witness didn’t think Ab had received any. Witness had received pay for her interest, but not for Joe’s part. Witness asked Mr. Leach why appellee didn’t get her part — Joe Martin’s part— and Leach replied that if there was anything coming to her he would pay it. That was at .the time the deed was executed and before, too. After the death of Jesse Martin, his heirs turned the matter over to Mr. Leach to get their interest. While he had it in control and about the time witness executed a deed to her interest and received $500 for same, witness heard that Leach said that appellee was dead, but witness knew that she was not dead.

Connie Babb testified that appellee was witness’ aunt. She was present one day when appellee was looking through her trunk, and came across an old book like one shown witness. She found in that book a deed from Joe Martin to appellee deeding his interest in the lands across the river to her. Mr. Rachels was present. Witness heard appellee read the deed, and after she read it she handed it to Mr. Rachels.

Lige Babb testified that he was a brother of the ' appellee, and remembered the time when she was down at his house looking through a trunk for some papers of her father’s estate. Witness was shown in a little book, and stated that he had seen the same many times. The appellee found in that book on the occasion named some papers that belonged to witness’ father, and also some that belonged to witness’ sister. Among these papers was a deed made by Joe Martin to appellee. After the deed was found, it was handed to Mr. Rachels, and he took it away. That was the first time witness had ever seen the deed.

J. N. Rachels testified that he was employed at first by other persons than the appellee to investigate the title to the Martin lands, and found that 240 acres had gone through the courts. There were four Martin heirs, Joe Martin, Ab Martin, Lizzie Langford and Artimissa McDaniel. Ab and Joe had deeded their interest to their wives. The women brought suit through Mr. Leach for recovery of the land. Witness came to Des Arc and made some investigations. He was looking through appellee’s father’s papers and also her husband’s papers and found the deed from Joseph Martin to the appellee. He compared the numbers in that deed with the lands in the original complaint and found they were the same. He then filed the amendment to the complaint claiming title to the lands in appellee through this deed. Witness decided to have the deed recorded. He placed the deed with a check in a letter to appellee containing instructions to the clerk of Prairie County as to ¡how to proceed, and what disposition to make of the deed after recording it. He mailed the letter to appellee. Appellee informed witness that the letter never reached her. The consideration mentioned in the deed was $1.00 and love and affection. On cross-examination witness stated that he had a conversation with appellee before he filed the first complaint. He knew at that time that she was claiming to have a deed to the land. Witness was asked: “Why is it then that you brought suit for her as the heir of her daughter if you knew at that time she had the deed ? ’ ’ Witness answered: “I did that for this reason: I told you a moment ago, and I repeat it, that lost deeds are seldom found. Mrs. Kerrin, if she will pardon me for it, I found to be about one of the most ignorant women about land titles that God Almighty ever allowed to live in Arkansas, and the most of the information .that I could get about the title T got from outsiders, and for that reason I alleged, basing my allegations as much upon my presumption of the law as otherwise, that she inherited it because I had understood that the heirs had agreed upon the interest that each should have.” Ques. “You drew that complaint, Mr. Rachels, didn’t you, on your understanding of the law at that time, that she would inherit from her daughter, didn’t you?” Ans: “I drew that complaint, at that time for a double purpose; first, because I believe, as I have been told, that those heirs had agreed on a division, and furthermore because I believed that under the peculiar circumstances of the estate and on account of the agreement the court would so hold.” Ques: “You didn’t change your complaint until after you received a letter from me calling your attention to the decision of the Supreme 'Court in the case of Kelly’s Heirs v. McGuire, did you?” Ans. “I didn’t change my complaint until after I received that and many other letters from you, but I knew of that case before you wrote me, and I wouldn’t have changed my complaint if I hadn’t had the deed in my hand at the time and was reasonably certain that I would be able to preserve it and present it-in court.”

Leach testified thá’t he represented the Martin heirs in litigation involving the title to the lands described in the complaint. He then testified to the various deeds executed to him by the Martin heirs, and the deed executed by him to Erwin, as already mentioned. He further stated that at the time his contract with the Martin heirs was signed to represent them in the litigation, it was his understanding that Viola May Martin, Ab Martin, Artimissa Martin, and Lizzie Martin, were the only heirs of Jesse Martin, each having a one-fourth interest in the estate. The only claim that the appellee had ever made to these lands was a dower interest as the widow of Joseph Martin. The deeds were made on the theory that whatever interest Viola May Martin had in the lands were cast by the law of descent upon Ab Martin, Artimissa McDaniel and Lizzie Langford, and the deeds were executed for the purpose of conveying to Erwin all the title except such interest as the appellee might have in the lands as the widow of Joseph Martin. The deeds mentioned were identified and introduced in evidence. Witness then entered upon an extended and detailed explanation of his employment and connection with the litigation involving title to the lands in controversy and the result of that litigation, which it is unnecessary, in view of the conclusion we have reached, to set forth at length, and it would unduly extend this opinion to do so. Witness stated that when the lands were sold the question of appellee's interest was discussed, and it was the understanding of all parties that the only interest -she had was a dower interest, which was to be later adjusted. He further 'stated that, during the seventeen years of the litigation involving the title to the lands in controversy, he had never been informed by the appellee that she had a deed from her husband to his undivided interest in the lands. Witness stated that he wrote a letter to appellee on August 5, 1916, which the appellee had introduced in evidence. This letter contained among others the following statement: “I am willing to buy out your interest if we can agree on the price, hut don’t care to buy until the case is decided.” This letter was written in response to a letter received by witness from the appellee with reference to the land matter — the litigation then pending in the Supreme Court' — in which she sought to sell her dower interest in the lands. Witness was informed by the appellee that her interest was a dower interest, and that is the interest. witness suggested he might buy when the Supreme Court passed on the case. The letter was written with that understanding. We have thus set out fully the testimony upon which the appellee relies to establish her title to the lands in controversy through the alleged lost deed of her husband.

The rule is well established in this State, as well as by the authorities generally, that the burden is upon one who claims title under the alleged lost instrument to establish the execution, contents, and loss of such instrument by the clearest, most conclusive, and satisfactory proof. Nunn v. Lynch, 73 Ark. 20; Kennedy v. Gilkey, 81 Ark. 147; Jacks v. Wooten, 52 Ark. 515. See also 25 Cyc. 1626, and numerous cases cited in note; 17 Cyc. 778, and numerous cases cited in note. Note to Clark v. Turner, 38 L. R. A. at page 441; Johnson v. Kennedy, 53 S. W. 221; Rhodes v. Vinson, 52 Am. Dec. 685.

We deem it unnecessary, and it could serve no useful purpose, to argue the testimony above set forth. It speaks for itself, -and suffice it to say, we are convinced that it does not meet the requirements of the law- above announced for the establishment of such instruments. Neither the proof of the execution, nor the loss is sufficient to comply with legal standards for the establishment of title to lands by parol testimony as against one who holds the record title. It would be dangerous in the extreme for titles to land to be suspended upon such slender, threads. Such is not the policy of the law in any jurisdiction. Hence the rule as above stated.

Our conclusion on the first proposition makes it unnecessary to discuss the second. The decree is therefore reversed, and the cause is remanded with directions to dismiss .the complaint for want of equity. It is so ordered.