author: Hart, J.

text:
    Fields v. State.
    Opinion delivered June 12, 1922.
    1. Homicide — killing with deadly weapon. — The killing of a person with a deadly weapon when there are no circumstances of mitigation, justification or excuse is at least murder in the second degree.
    2. Homicide — malice.—In a trial for murder, whether a killing was done with malice held under the testimony to be a question for the jury.
    3. Homicide — inference of malice. — In a trial for murder, the jury may infer malice from a killing with a deadly weapon with manifest purpose of taking life, where there were no mitigating circumstances.
    4. Criminal law — conclusiveness of verdict. — As the jury are the sole judges of the weight and credibility of evidence, a verdiet supported by substantial evidence cannot be disturbed on appeal, even though believed to be against the weight of evidence.
    5. Homicide — instruction.—In a trial for murder, an instruction following Crawford & Moses’ Dig., § 2375, that to justify a killing in self-defense the danger must appear to defendant, acting without negligence, to be so urgent and pressing that killing is necessary to save himself from death or great bodily harm, that the person killed was the assailant, or defendant in good faith must have declined further contest, did not prejudice defendant, where other instructions given at the request of defendant fully presented the law' of self-defense.
    6. Criminal law — burden of proof — instruction.—The court charged that “a reasonable doubt is where, after a careful consideration and comparison of all the evidence in the case, the jury is not convinced to a moral certainty of the truth of the charge, which means the guilt of the defendant. It is not a mere possible doubt, but a real substantial doubt which arises from the evidence in the case.” Held not to shift the burden on defendant.
    7. Homicide — argumentative instruction. — An instruction in a prosecution for murder that, if the evidence failed to show any motive of accused, this should be considered in his favor with all other facts and circumstances, being argumentative, and tending to invade the jury’s province, was properly refused.
    8. Criminal law — instruction.—The court is not required to single out evidence to show motive or absence of motive to commit crime for which accused is tried and give a special charge upon it in favor of accused.

      Appeal from Columbia Circuit Court; Charles W. Smith, Judge;
    affirmed.

      Henry Stevens and Powell & Smead, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

Nathan Fields was indicted for the crime of murder in the first degree, charged to have been committed by shooting and killing Grady Talley with a pistol. He was tried before a jury, which returned a verdict of guilty of .murder in the second degree, and fixed his punishment at imprisonment in the State Penitentiary for ten years. From the judgment of conviction the defendant has duly prosecuted an appeal to this court.

It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. The killing of a person with a deadly weapon, when there are no circumstances of mitigation, justification, or excuse at the time of the killing, is murder in the second degree. Young v. State, 99 Ark. 407, and Reed v. State, 102 Ark. 525.

Counsel for the defendant claim that there is no evidence in the record tending to show malice on the part of the defendant or any circumstances from which the jury might infer malice in the killing.

.E. S. Dunn and E. D. Haynes were eye-witnesses to the killing, and were the principal witnesses relied upon by the State to convict the defendant.

According to the testimony of E. S. Dunn, he went to a party at Tom Watson’s home in Columbia County, Ark., on Saturday night, November 20, 1920. He passed Tom Winn, Grady Talley and Mr. Watson at' the gate. He heard Watson tell the other two men not to talk so loud because there were ladies in the house. Talley said, “If we get too loud, just call us down, that is what we want you to do.” Dunn passed on in the gate and Watson also came in. The defendant Fields at the same time passed out of the gate. The witness went on the porch and stood there looking ont. It was a bright moonlight night. He saw Winn and Talley outside some steps away from the front gate. Fields was three or four steps from them and next to the gate. Fields first fired three shots at Winn. .When Winn fell, Fields fired four more shots at Talley. Fields fired all the shots that were fired there. Neither Winn or Talley fired at Fields. Both Winn and Talley were killed by the pistol shots fired at them by Fields. Fields then came into the house and exhibited two bottles of Garry Owen Bitters and a pistol, which he said he had gotten out of their pockets. The witness was acquainted with all of the parties, but disclaimed any interest in the case. One of the shots fired at Talley struck him in the back. Winn and Talley both died almost instantly after they were shot, and neither of them attempted to shoot at the defendant or inflict upon him any injury.

According to the testimony of E. D. Haynes, he first saw the defendant and the two men who were killed by him walking together from the front yard gate towards some horses that were hitched out in front of it. When they got to the horses, they talked for a little while and started back to the gate. As they walked along the defendant stepped out in front of Winn and Talley and began to shoot at Winn with a pistol. The defendant shot at Winn three times. When Winn fell, the defendant began to shoot at Talley, who had commenced to back away. He shot at Talley four times and several of the shots struck his body. Winn and Talley died almost instantly. It was a bright moonlight night, and the witness could see the three men plainly. He could tell by the flash of the pistol that all of the shots were fired by the defendant and none were fired by Winn or Talley. He could not see that Winn or Talley made any attempt to shoot or to injure the defendant.

Under the authorities cited above, the jury itself is to determine the question of malice, and it may infer malice when the killing is done with a deadly weapon with manifest purpose to take life without any mitigating circumstances.

The circumstances of the killing detailed, by these witnesses were sufficient to warrant the jury in finding the defendant guilty of murder in the second degree. The defendant adduced evidence tending to show that Winn and Talley had said that they were coming to the party at Watson’s house for the purpose of provoking a difficulty with the defendant and then killing him. The evidence adduced in the defendant’s behalf, also, shows that Winn fired the first shot, and it may also be stated that several witnesses testified to this fast.

We need not, however, set out this evidence in detail, for it is not within our province to pass upon the weight of the evidence. Under the settled rule in this State, the jury are the judges of the credibility of the witnesses, and where there is any evidence of a substantial character to support the verdict of a jury, we are not at liberty to disturb it upon appeal, notwithstanding we might believe that it was against the weight of the evidence.

The undisputed evidence shows that the deceased was killed with a pistol, and, according to the witnesses for the State, there was no provocation for it. According to their testimony, the defendant drew his pistol and shot Winn and Talley at a time when they were making no effort to shoot him or to inflict bodily injury upon him. Under these circumstances the jury might have inferred malice in the killing, and the testimony, if true, justified the verdict.

It is next insisted that the court erred in giving instruction No. 7, which reads as follows:

“You are instructed that in ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, as it appears to the defendant, acting without negligence on his part, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal injury was inflicted. ’ ’

This instruction was almost a literal copy of see. 2375 of Crawford & Moses’ Digest. The defense was that the defendant shot Winn and Talley in order to prevent them from killing him oí* receiving great bodily injury at their hands. Other instructions on self-defense were given at the instance of the defendant. The jury was fully instructed upon the appearance of danger to the defendant, in accordance with the principles of law heretofore laid down by this court.

The court also, at the request of the defendant, instructed the jury upon his right to kill Winn and Talley if they were engaged in carrying out a conspiracy to kill him or to do him great bodily harm. Therefore, we think the record affirmatively shows that no prejudice whatever could have resulted to the defendant from giving instruction No. 7.

The next assignment of error is that the court erred in giving for the State instruction No. 12, which is as follows :

“A reasonable doubt is where, after a careful consideration and comparison of all the evidence in the case, the jury is not convinced to a moral certainty of the truth of the charge, which means the guilt of the defendant. It is not a mere possible doubt, but a real substantial doubt which arises from the evidence in the ' case. ’ ’

It is insisted by the defendant that the instruction is inherently wrong because by a negative definition of the term “reasonable doubt” the burden is shifted upon the defendant. We cannot agree with counsel for the defendant in this contention. The instruction is in accord with the rule laid down in Bell v. State, 81 Ark. 16, and many other decisions of this court.

The next assignment of error is that the court -erred in refusing to give, at the request of the defendant, instruction No. 10, which is as follows:

“The court instructs the jury that, if the evidence fails to show any motive upon the part of the accused to commit the crime charged against him, this is a circumstance in favor of his innocence which the jury ought to consider, together with all the other facts and circumstances, in making up their verdict.”

There was no error in refusing to give this instruction. It was argumentative in form and tended to invade the province of the jury. It was proper to introduce testimony of facts tending to show motive or absence of motive for the commission of the crime by the defendant as tending to establish his guilt or innocence. The court is not required, however, to single out the evidence on this point and give a special charge upon it in favor of the defendant. Ince v. State, 77 Ark. 418, and Scott v. State, 109 Ark. 391.

The case was submitted to the jury upon instructions which were full and complete. They fully presented to the jury the respective theories of the State and of the defendant.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Bennett v. Farabough.
    Opinion delivered June 12, 1922.
    1. Vendor and purchaser — fraud—sufficiency of evidence. — In an action to rescind a contract for the sale of a farm because of the alleged misrepresentation of the vendor in regard to a drainage tax, evidence held to show that no intentional fraudulent misrepresentation was made concerning the tax,, and that the purchaser had full knowledge that the land was subject to as-assessments for drainage before he signed the contract.
    2. Vendor and purchaser — contract construed. — In a contract to rescind a contract for the sale of a farm, which provided that the purchaser may pay the balance of the purchase money in cash, or assume the incumbrances, that the vendor should submit an abstract showing a “good, clear and merchantable title” and execute a warranty deed when the money was paid in whatever manner, held, in view of the evidence, that the parties inten'ded that the vendor should present an abstract showing title that would be merchantable when the liens were satisfied from the proceeds of the sale, and that the contract did not require that the abstract should show that the liens were paid and satisfied before the purchaser was required to pay the price, under reasonable safeguards offered by the vendor for the application of the money.
    3. Contracts — construction.—In the construction of contracts, courts have the right to place themselves in the same situation as the parties, in order to ascertain their intention.
    Appeal from Drew Chancery Court; A. G. Hammock, Chancellor;
    reversed.

      Henry & Harris, for appellants.
    1. Appellee has not met the requirements of law with reference to rescission on the ground of fraudulent misrepresentation, as recognized by this court. 47 Ark. 165; 97 Id. 268.
    Where the means of information is accessible to both parties so that, with prudence or vigilance, the purchaser might rely upon his own judgment, he will be presumed to have done so. 112 Ark. 498.
    • The proof to establish fraudulent misrepresentations must be clear, satisfactory and convincing. 202 S. W. (Ark.) 720; 200 Id. 139; 112 Ark. 498.
    Misrepresentation must be of some fact that is material, the moving cause of the transaction. Black on Res. & Can. 169; Id. pp. 306-7; 77 Atl. 409; 94 Id. 12.
    False and fraudulent misrepresentation may be waived by conduct. 90 Atl. 698; 102 Ark. 79; 98 Id. 328; 55 Id. 148.
    2. The existence of incumbrances is no ground for rescission where the vendor’s purpose was to use the purchase money to pay the incumbrances, and the mortgagees were willing to execute releases. Black, Res. & Can. 1043, and cases cited; 81 Neb. 754; 33 N. T. Sup. Ct. 450.

      Streett, Burnside & Streett, for appellee.
    As found by the chancellor, the obligations to furnish the abstract showing a good, clear and merchantable title, and to place of record the satisfaction of all liens against the lands, were, by the terms of the contract and the intention of the parties, conditions precedent to the right to demand of plaintiff the payment of the balance of the purchase money or that it be placed in escrow. 6 B. C. L. 904; Bishop on Contracts, Enlarged Ed., 319; Id. 320; 134 Ark. 419; 121 Id. 487; 119 Id. 418.
    The drainage tax covers a period of fourteen years. The assessment of benefits has the force and effect of a judgment. Appellants have' not only not offered to discharge this lien, but specifically refuse to do so. 27 B. C. L. 542; 6 Id. 1021; 18 La. 510; 54 Pa. St. 203; 93 Ark. 447; 76 111. 493; 27 B. C. L. 517.
   Wood, J.

On the 16th day of March, 1920, J. A. Bennett and W. S. Daniel (hereafter called appellants) entered into a written executory contract with G-. M. Farabough (hereafter called appellee) by which appellants agreed to sell and the appellee agreed to buy one hundred and twenty acres of land in Drew County, Arkansas, for the consideration of $10,200. The contract provided that $1,000 of the above sum was to be paid in cash as earnest money. The balance was to be paid in “either of the following manners”: $4,200 within thirty days from the date of the contract, and the balance by assuming existing incumbrances on the land in the sum of $5,000, or cash, at the option of the appellee. After setting forth the agreement for the sale and purchase and terms of payment thereon, the contract contains, among others, the following recitals: “* * * it being understood and agreed by the first party hereto that all liens and mortgages against said land shall be satisfied and placed of record before the balance of the $5,000 shall be paid over to the first party. It is further agreed and understood and the first party (Bennett and Daniel) binds himself, his heirs and assigns, that, in the event of the payment of the sums above described in either of the manners set forth, then he shall execute his warranty deed conveying said lands in fee simple to the- party of the second part (Farabough). It is further agreed and understood that the said party of the first part will submit to the second party an abstract to said lands showing a good, clear and merchantable title, and the second party shall have ten days in which to examine said abstract and to report his approval or to file his objections thereto. Then the first party shall have a reasonable length of time in which to meet any objections that said second party may find to said title.

“It is further agreed and understood that, should the said first party be unable to establish a good, clear, merchantable title to said lands, then the earnest money herein acknowledged shall be returned to the said second party upon demand, it being also understood that, after a merchantable title has been established, should the second party fail to meet the payments according to the terms of this contract, then the earnest money shall be forfeited to the said first party at his option.” The contract further provided that, when the deed had ‘been delivered and accepted, the rents for said place during the year 1920 would be paid to the appellee.

On October 1, 1920, the appellee instituted this action in the chancery court of Drew County against the appellants, Bennett and Daniel, partners doing business under the-firm name and style of Bennett-Daniel Company. In this complaint he set up the contract, alleged that he had performed the same and that appellants had failed to perform the contract in the following particulars: (a) They had not within a reasonable time furnished the appellee an abstract of title showing a “good, clear and merchantable title to said land.” (b) They had failed and refused to satisfy and place of record all liens and mortgages against said land before the balance of the $5,000 purchase money under the terms of the contract was to be paid.

The appellee further alleged in his complaint that the appellants had falsely and fraudulently represented to the appellee that the lands were free from local assessments for drainage purposes; that appellee relied upon these representations and would not have entered into the contract if such representations had not been made. The appellee prayed that the 'contract be rescinded, and that he have a decree against the appellants in the sum of $5,200, the amount paid them, with interest thereon; that he have judgment for damages in the sum of $150, which he had expended in endeavoring to have appellants carry out their contract.

In their answer the appellants denied all the material allegations of the complaint, and, by way of cross-complaint, they admitted the execution of the contract alleged in the complaint, and averred that the contract was entered into with the appellee after he had been put in possession of all the facts concerning the location and desirability of the land, and after appellee knew that the land was subject to assessment for drainage improvements. They alleged that, after clearing up all the defects in the abstract of title to the lands, they had tendered to the appellee a deed which he refused to accept; that, after the payment by the appellee of the sums mentioned in his complaint, he notified the appellants that he preferred to pay the remainder due under the contract in cash rather than to assume the incumbrances mentioned; that it was understood between them that upon appellee’s election to pay this amount the appellants might use the balance so paid in cash to them in paying off the incumbrances; that the appellants thereupon requested the appellee to deposit the balance of $5,000 due them in the Dermott Bank So Trust Co. or some other bank in the State, for the purpose of paying off these debts and having the incumbrances released; that the appellants agreed to deposit with the same bank a good and sufficient warranty deed conveying to the appellee the lands in question, together with such other money as would be necessary, in addition to the $5,000 balance due on purchase money, to satisfy the debts and remove the incumbrances; that the appellants had the holders of the incumbrances execute full releases of the incumbrances and notified the appellee that release deeds had been deposited with the Dermott Bank & Trust Company, and that appellants were ready to consummate the sale when the appellee should pay the balance of the purchase money; that appellee refused to do this and therefore failed and refused to comply with his contract. Appellants prayed that the appellee be required to specifically perform the contract on his. part by paying into court the sum of $5,000, with interest, and that, upon his failure to do so, the title be declared vested in him; that appellants have judgment against appellee for the balance of the purchase money due them under the contract, and that the lands be sold to satisfy the same, or else that the appellee be required to accept title subject to the incumbrances.

The cause was heard upon the depositions of the witnesses, the contract and other documentary evidence, which was duly identified and introduced. The trial court found that the evidence presented in support of plaintiff’s contention that he had been misled with reference to the drainage taxes is not sufficient to support such contention, and that his offer to take the land in the event that defendants cleared same of all outstanding liens and furnished abstract showing good, clear and merchantable title, often repeated, shows that he had waived this objection; that the evidence submitted in support of plaintiff’s contention that he suffered damages in the sum of $175 is too uncertain and indefinite. The court found that the contract was executed as set up in the pleadings, and that the “plaintiff paid the $4,200 in accordance with his agreement, and elected to pay the $5,000 balance due on the lands in cash, and called upon defendants to satisfy all outstanding liens and furnish him with an abstract showing good, clear and merchantable title. Tbe defendants then demandéd that plaintiff /first pay over to' some bank tbe said $5,000 as a condition precedent to clearing tbe title. This plaintiff refused to do, and, when tbe defendants made no further effort to satisfy the liens outstanding on the lands, plaintiff declared a forfeiture and brought this suit for rescission and for recovery of the money already paid, and for damages. The court declared “that the defendants, after the election of plaintiff to pay the $5,000 balance purchase price in cash, should have satisfied the outstanding liens against the lands and offered an abstract of title thereto showing a good, clear and merchantable title; that it was their duty as imposed by the contract to do this, and that they had no right to demand of plaintiff the payment of this sum either to themselves. or in escrow until they had so discharged the liens and exhibited such title. ’ ’

The court thereupon entered a decree'in favor of the appellee against the appellants in the sum of $5,200, the amount paid by appellee to appellants on the purchase price, with six per cent, interest from the date of the payment of the several sums aggregating that amount, and decreed that, unless the judgment be satisfied within sixty days, the lands be sold to pay the same. From that decree is this appeal.

1. The issue as to whether or not the appellants made false and fraudulent representations to the appellee to the effect that the land was not subject to assessment for local improvements in order to induce the appellee to purchase same is1 purely an issue of fact. The appellee testified that, in a circular issued by the appellants advertising the lands in controversy, among other lands for sale, it was represented that the lands in controversy “were ideally drained, with no drainage tax;” that this was a material part of the consideration; that he would not have purchased the land at the price demanded had he been apprized of the fact that the land was subject to 5. drainage tax extending over a ■ period of fourteen or fifteen years; that he first learned of this drainage tax on the lands when he received the abstract of title, and that he immediately directed the at-tention of appellants to the same; that appellants had not offered to adjust the matter or given appellee credit for the amount of the drainage tax on the purchase money he had paid, but on the contrary had demanded full payment of the balance due with no deduction.

The witness further testified that appellant Daniel told him at the time of the sale that there was no drainage tax on the property, and that fact controlled his purchase of the land.

Appellant Daniel, on the contrary, in his testimony denied that he told the appellee that the land was not • subject to drainage tax. He got out all the circulars describing the various tracts of land which they had for sale, but had no personal recollection of this particular tract being advertised as not subject to a drainage tax. In a letter written by the appellee to appellants after the contract was entered into, and after he had received the abstract of title, appellee called attention, among other things, to the drainage tax. In answer to this letter appellant Daniel stated that they were under the impression that there was no drainage tax on the land, but found that it was assessed, and that it would amount to about ten cents per acre per year and would run fourteen years. When asked to explain this letter, appellant Daniel said that it was written with reference to the amount of the drainage tax; that at the time the dea] was consummated appellee may not have known the exact amount of the tax and the abstract did not show the amount, and he wrote the letter in explanation of the amount of the tax. He further testified that he first met the appellee on March 15, 1920, when he came into witness ’ office and wanted to look at farms in that section with a view to purchase.- On that day witness showed appellee several tracts, among others the land in controversy, and advised him to buy the same. The next day, and before the deal was consummated and the written contract entered into, witness showed the appellee the land in controversy on the map, and explained to appellee that it was in the last zone of a drainage district, and that the taxes. on same would amount to less than ten cents per acre per year.

A young lady who was the stenographer in the office of the appellants testified that she was present before the execution of the contract and heard the appellee mention the subject of taxes and inquire if the tract of land was included in the drainage district, and that Mr. Daniel referred him to the map hanging on the wall showing that the land was located in the drainage district, and that the appellee consulted that map before he signed the contract.

Both of the appellants testified that in the latter part of September, 1920, appellee, after looking over the land in controversy, came into their office and told them that he wanted his money back. He was asked on what grounds, and replied that they had not cleared the in cumbranees. Appellee stated that he wanted the money refunded because the deed of trust and vendor’s lien against the property had not been satisfied. In the correspondence between the appellee and the appellants concerning the abstract of title it is shown clearly by some of appellee’s letters that when his objection had 'been met as to the satisfaction “of all liens and mortgages and a record showing the satisfaction' of such liens and mortgages ’ ’ he was ready at once to pay over the $5,000 upon “delivery of the deed and rental contract as per our contract.” .

We conclude, therefore, that a decided preponderance of the evidence shows that there was no intentional fraudulent misrepresentations made by the appellants to the appellee concerning the drainage tax on the lands in controversy; that the representations made by them concerning this in the advertising circulars- were not a materiápinducement to the'- appellee in .executing the contract. We are convinced that a preponderance df the evidence shows that the appellee had full knowledge that the land was subject to local assessment for drainage before he signed the contract.

This court has often announced rules of law to be applied in determining whether there should be a rescission of a contract on the ground of alleged fraudulent representations, and it is unnecessary to reiterate them here. Appellee has not established a cause of action for rescission of the contract under these rules. Yeates v. Pryor, 11 Ark. 66; Matlock v. Reppy, 47 Ark. 165; Evatt v. Hudson, 97 Ark. 268; English v. North, 112 Ark. 498.

2. The appellee contends that the appellants had failed at the time of the institution of this suit to furnish him with an abstract showing “a good, clear and merchantable title” to the lands in controversy, and that such an abstract as was contemplated by the contract could not be furnished until the appellant had satisfied all liens and mortgages on the land and had recorded the satisfaction and brought such record into the abstract, which was not done; that these were conditions precedent to the performance of the contract on the part of the appellee, and that the failure of appellants to comply with the contract in this respect entitled the appellee to a rescission. This presents a mixed issue of law and fact.

The only defects in the abstract of title of which appellee complains are the following, which appellee contends were unsatisfied incumbrances against the land in controversy, to-wit:

(a) Drainage tax, $168.

(b) Mortgage to New England Securities Company, assigned to First Congressional Society to secure $1,000, due May 1,1926.

(c) Interest thereon from May 7,1919.

(d) Deed of trust to T. C. Alexander, trustee, of May 7,1919, due May 1,1926, $209.55.

(e) Interest on the above from May 7, 1919.

(f) Vendor’s lien retained in deed to secure notes to the amount of $2,666.1

(g) Vendor’s lien retained in deed to secure four notes of $1,000 each, the last due Jan. 10, 1924, $4,000.

(h) Interest on above, making a total of outstanding liens in the sum of $8,043.55, exclusive of interest. We will dispose of the above in the order presented.

(a) We have already disposed of the drainage tax.

(b) (c) (d) (e) Of the remaining alleged out-

standing incumbrances appellants concede that the mortgage to the New England Securities Company, assigned to the First Congressional Society, for $1,000, is an outstanding lien.

The land which the appellants by the contract agreed to convey to the appellee is described in the contract as the N% of SE14 and the SW% of the SE14 of section 13, township 14 south, range 4 west, containing 120 acres. The SW% of the SE% of section 13, T. 14 S., R. 4 W., containing forty acres, is therefore involved in this litigation. But the SE14 of the SW14 of section 13, T. 14 S., R. 4 W., upon which the counsel for the appellee claims the Mercantile Trust Co. holds a lien, was not embraced in the contract, and the record shows that it was not involved in this litigation. It appears that the deed of trust executed May 7, 1919, for $209.55 to T. C. Alexander, trustee, for the New England Securities Company, was an outstanding lien which the appellants concede.

(f) The contention by the appellee that there is an outstanding indebtedness of $2,666 evidenced by promissory notes, which amount is a lien upon the land in controversy, is not borne out by the facts as disclosed by the sheets of the abstract of title brought into the record, for the reason that these sheets, when considered together, show, first, that one J. J. Dicken conveyed to one Bryant Reed certain lands not involved in this controversy upon which a lien was retained in the sum of $2,666. Dicken also conveyed to Bryant Reed the SW% of the SE14 of section 13, upon which no lien was retained. Reed conveyed both tracts, including the tract not in controversy in this case, and upon which a lien was retained, and also the tracts in controversy upon which the lien was not retained, and appellants assumed the lien of $2,666 on the tract which is not involved in this litigation. Dicken had a lien of $2,666 on the lands not in controversy, which he, in a second deed, conveyed free of incumbrance. Even if there were an outstanding lien on forty acres of the land in controversy in favor of Dicken, the uncontroverted testimony of appellant Daniel shows that Dicken, upon the payment to him of $4,000 with interest, was willing to release the lien, and had prepared a release deed for that purpose, which was not placed on record because the deal was not consummated.

(g) (h) The appellants concede that the $4,000 vendor lien notes held by Dicken and the interest thereon constituted an outstanding lien on the land in controversy.

It thus appears that at the time of the institution of this action the only outstanding unsatisfied liens against the property were the notes for $4,000 due Dicken and the amount due on the note to the New England Securities Company in the sum of $1,209.55. The contract mentioned these notes, and it is evident from the terms of the contract that the parties contemplated that these were the only unsatisfied liens, and that the ,amount of these notes at that time would be virtually paid by the balance of the purchase money, $5,000, which the appellee had the option to pay in cash or to assume the notes.

The undisputed testimony shows that on May 11, 1920, the appellants prepared a warranty deed and tendered the same to the appellee, but appellee refused to accept the same and to nay the balance of the purchase money. At that time and later, on October 1, when the action was instituted, the amount of the principal and interest of the outstanding liens was less than $5,500. After the institution of the action appellants again tendered the deed to the appellee and also tendered in court the sum of $520, being more than the difference between the amount -of the incumbrances with interest, and the sum of $5,000, the balance of the purchase money on the contract. The undisputed testimony shows that it was the purpose of the appellants to use the balance of the purchase money due under the contract to pay off the unsatisfied liens and to pay any additional amount necessary for that purpose, and to have the same satisfied of record, and to deliver to the appellee their warranty deed with an abstract showing the complete record title in the appellee at the time the deal was thus consummated.

The court, without finding that there were any other unsatisfied liens than those above discussed, and without finding the amount of the unsatisfied liens, determined as a matter of law that it was the duty of the appellants to satisfy the outstanding liens against the land and to offer appellee -an abstract showing that these liens had been satisfied of record before it was incumbent upon the appellee to pay the balance of the purchase money.

This brings us to the issue of law as to whether or not the appellee, under the above facts, is entitled to a rescission of the contract. It will be observed that the contract bound the appellants to submit to the appellee “an abstract to said lands showing a good, clear and merchantable title.” The contract gave the appellee ten days in which to examine the abstract and to file his approval or objections thereto. The contract further provided that if the appellants were unable to furnish a good, clear and merchantable title, then the earnest money was to be returned to the appellee. There was further provision to the effect that the appellee “shall not be required to pay over to the appellants the $5,000 until the liens and mortgages are satisfied and placed of record.” The contract also contains the following provision: “It is further, agreed and understood and the first party hereby binds himself, his heirs and assigns that, in the event of the payment of the sums above described in either of the manners set forth, then he shall execute his warranty deed conveying said lands in fee simple to the party of the second part.” It is certain that under the paragraph last quoted appellants were not to execute the warranty deed until the appellee had paid the purchase money. It is equally clear that, under the paragraph, just preceding the appellee was not to pay over the balance of the purchase money before the mortgages were satisfied and placed of record.

Now, the above provisions of the contract and the preponderance of the testimony, as we view the record, show that the parties contemplated at the time the contract was entered into that the appellants should present the appellee a “good, clear and merchantable title,” that is, one that would be clear, merchantable and good, when the outstanding liens were satisfied; that appellee was then to pay the balance of the purchase money, $5,000, or to assume the incumbrances mentioned in the contract, and the appellants then should satisfy’the incumbrances, if the balance of the purchase money were paid in cash, and execute and deliver to appellee their warranty deed. There is no other way to reconcile the otherwise inharmonious .provisions of the contract. Courts have the right to place themselves in the same situation as the parties to the contract in order to ascertain the intention of the parties. Wood v. Kelsey, 90 Ark. 272; Ft. Smith L. & T. Co. v. Kelly, 94 Ark. 461; Ford Hardwood Lbr. Co. v. Clement, 97 Ark. 522.

The preponderance of the evidence shows that such was their intention. The correspondence between the appellee and the appellants and their respective attorneys is too lengthy to set forth, but it shows that the appellants had furnished an abstract which was satisfactory to the appellee’s attorney. In the course of the correspondence, the attorney for the appellee, in a letter to the appellee, pointed out various objections to the abstract, and in regard to the satisfaction of the liens stated: “Of course, the mortgages can be paid when you close the matter. They (appellants) probably want to make these payments from the purchase price. ’ ’ And in a letter of appellants ’ attorney to the appellee concerning this matter he stated as follows: ‘ ‘ The mortgages are to be satisfied out of the purchase money. Your attorney admits that this will be satisfactory.” The appellee did not indicate that this would not be satisfactory until he had visited the lands on September 29th and found the condition of the crop exceedingly unfavorable. Then, for the first time, he expressed dissatisfaction with the contract, demanded the return of his money, and gave as a reason for wanting to rescind the contract that the liens had not been satisfied. When such objection was made, the appellant Bennett, who had $9,000 available in cash in the banks at Dermott, proposed to deposit the sum of $5,000 if the appellee would deposit the same sum, and that if appellant did not clear the incumbrances the appellee could take the $5,000 deposited by Bennett as a bonus. Whereupon the appellee still declined, saying that he wanted his money back. This testimony- of appellant Bennett was not controverted by the appellee.

While the appellee testified that he had at all times been ready, able and willing to pay the $5,000, and had kept that sum on deposit in Rogers for the purpose of completing the deal when the abstract was certified down to date showing the satisfaction of the outstanding* liens, it occurs to us that his real objection to the consummation of the contract was not the mere failure upon the part of the appellants to satisfy the mortgage liens and to have the satisfaction thereof placed of record. The appellants give a satisfactory explanation of whv they were not willing to do this unless thev knew that'the appellee intended to pay the balance of the purchase money and thus consummate the deal, the reason being that the mortgages were advantageous to the appellants, and they preferred to continue them rather than to' pav them off unless the appellee was going to complete the transaction.

The appellee is in a court of -conscience seeking to rescind a contract for alleged failure upon the part of - the-appellants to comply with the provisions of such-contract. ■ As we construe all the provisions of the contract, taken in connection with the -conduct of the parties showing the interpretation and meaning which they had given such contract prior to the institution of the suit, we have reached the conclusion that the appellants have not failed to comply with its terms. On the contrary, they have in good faith done all they were required to do to complete the contract. They had furnished to appellee an abstract showing a “good, clear and merchantable title,” as- contemplated by the parties when they entered into the executory contract for the sale and purchase of the land in controversy. Hinton v. Martin, 151 Ark. 343. We do not discover any provision in the contract which requires that the abstract must show that the liens had been satisfied of record, as a condition precedent to the consummation of the deal. The liens had to be satisfied and placed of record, to be sure, but there is no provision that the abstract must show this, before the deal should be closed. The appellee, under the circumstances, is not entitled to rescission, but, on the other hand, must be required to perform his contract.

When the appellants presented the appellee with an abstract showing a “good, clear and merchantable title” and tendered him their warranty deed, it was his duty to pay the balance of the purchase money. If he desired not to pay same direct to the appellants, then he should have met the proposition of appellant Bennett and deposited the sum in escrow in the bank to be paid over to the appellants after the liens were satisfied of record and brought into the abstract.

In Martin v. Stone, 79 Mo. 309, there was an executory contract for the sale of lands. The vendee agreed to pay the vendor $250 cash in hand, and the vendor agreed to give peaceable possession to the vendee at a subsequent date, on which day the vendee agreed to pay the sum- of $4,500 in Cash, the balance of the consideration of the sale, and upon condition that the vendor deliver' to the---vendee- a warranty deed for the property. It was! afterwards ascertained that the land was incumbered by a deed of trust. The vendor expected to use a portion of the remaining purchase money in discharging the mortgage debt, and he had the holder of the mortgage lien present on the day the balance of the purchase money was to be paid for the purpose of executing a release, which the holder of the lien was willing to do upon the receipt of the money due him. The vendor executed and tendered to the vendee a warranty deed and demanded payment of the remainder of the purchase money. The vendee refused to accept the deed, and instituted an action at law to recover the cash payment he had made. In passing upon the above facts, the court said: “It is undisputed that the defendant’s purpose was to pay the incumbrance out of the remainder of the purchase money, and that the owner of it was present and was willing to accept the money and release the lien. To predicate a right of rescission on the part of plaintiff on such a ground is too technical for serious consideration, especially as the defendant, at the trial, proffered to deliver the deed and have the incumbrance removed if plaintiff would pay the balance due under the contract.” So we say. The action in the above case was at law, but the facts are sufficiently similar to make the doctrine there announced on the issue of rescission applicable here.

It follows that the decree must be reversed and the cause will be remanded, with directions to enter a decree in favor of the appellants, and requiring the appellee to pay into court the. balance of the purchase money with interest thereon from the 11th of May, 1920, and that the appellants be required to satisfy of record all existing incumbrances, except the drainage tax, upon the lands in controversy, and furnish the appellee an abstract of title showing such satisfaction, together with their warranty deed conveying the land in- controversy to the appellee; and that the appellants be required to pay the' appellee all rents and profit's that may-have accrued since the. execution: of--the contract, -and -for' such-'other -and further proceedings according to the rules of equity and not inconsistent with this opinion as may be necessary to protect and enforce all the rights of the parties under the contract.


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    Missouri Pacific Railroad Company v. Berry.
    Opinion delivered June 12, 1922.
    1. Appeal and error — weight of evidence. — It is not within the province of the Supreme Court to pass upon the weight of evidence.
    2. Carrier’s negligence — question for jury. — In an action by a passenger for injuries received on defendant’s local freight train caused by a violent jerk of the train while moving on after it had stopped near plaintiff’s destination, and while she was preparing to alight, the question whether the train stopped with an unusual jerk held under the evidence for the jury.
    3. Trial — instructions already given. — It was not error to refuse an instruction covered by one already given.
    4. Release — validity.—In an action for personal injuries, evidence held sufficient to sustain a finding that plaintiff did not know what she was doing when she signed a release.
    5. Continuance — surprise.—The complaint alleged that plaintiff was injured while in the act of alighting from defendant’s train by the sudden starting and stopping of the train. Eye witnesses testified in accordance with this allegation, but plaintiff testified that she was struck in the back by another train which going out of the coach door. Held that refusal to grant a continuance because of surprise at plaintiff’s testimony was not error, in view of the fact that the testimony was practically undisputed that plaintiff was injured by falling on her back while alighting and • that the case was submitted on that theory alone.-
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    affirmed.

      Thos. B. Pryor and Vincent M. Miles, for appellant.
    The court erred in overruling defendant’s motion for continuance on the ground of surprise and variance. 71 Ark, 197. ,
    The court should have instructed . the jury that-the .reléase..executed,by the plaintiff was binding. • 107 Ark. 202. By cashing the check and accepting the money she ratified the transaction. 115 Ark. 238.

      Geo. W. Johnson, David Partain and G. L. Grcmt, for appellee.
    There was no settlement or release. It was proper to submit to the jury the qestion of whether or not the plaintiff was capable of transacting business, and whether or not an unfair advantage had been taken of her. 137 Ark. 293.
   Hart, J.

Martha Berry sued the Missouri Pacific Railroad Company to recover damages for injuries received while alighting from one of the defendant’s local freight and passenger trains at Greenwood, Ark. She recovered judgment, and from the judgment rendered, the railroad company has duly prosecuted this appeal.

Martha Berry was seventy years of age at the time she was injured. She boarded one of the defendant’s local freight trains, which also carried passengers, to go from her daughter’s home in Van Burén, Ark., to her own home in Greenwood, Ark. There were nineteen ears in the train. Fifteen of these cars were empty coal cars. Two of them were merchandise cars, and two of them passenger .coaches. The train stopped about two cars length before it came to its regular stopping place. Some of the passengers alighted from the coaches. Mrs. Berry arose from her seat and started to go out of the coach. Before she reached the door, the brakeman, who had got off of the train, signaled the engineer to go ahead. The train lunged forward, and Mrs. Berry was thrown down on her back.

Two or three witnesses for the plaintiff testified that the train moved up about a oar’s length and suddenly stopped again. One of the witnesses testified that when the train stopped the first time, Mrs. Berry got up and started to get off of the train. About the time she got to the door of the coach, the train pulled up about a car’s length and then was stopped suddenly. He said that the.first stop did not seem to be rough, but that the second stop was really out of the ordinary. The train moved up about a car’s length slowly and stopped rather suddenly.

Mrs. Berry was a witness for herself. She did not recall whether the station was called when they got to Greenwood. She started to get off while the train was standing still. She started out of the door of the coach and was struck in the back.

The jury might have legally inferred from this testimony that the train had come to a standstill at the station at Greenwood, and that Mrs. Berry had walked to the front door of the coach in which she was riding for the purpose of alighting from the train, and that the train was started and stopped again with a sudden jerk, which caused her to be thrown violently on her back, whereby she was injured.

It is true that the defendant adduced evidence tending to show that there was no unusual jerk in stopping the train, but it is not within our province to pass upon the weight of the evidence, and the evidence for the plaintiff was sufficient to submit the question to the jury. St. L. I. M. & S. R. Co. v. Richardson, 87 Ark. 101; and St. L. I. M. & S. R. Co. v. Brabbzson, 87 Ark. 109.

It is also insisted by counsel for the defendant that the court erred in refusing to give instruction No. 5, which is as follows: “You are instructed that if, at the time Mrs. Berry entered into a release, she knew what she was doing, your verdict must be for the defendant, although you may believe that she has since forgotten.”

The court did give at the request of the defendant the following instruction: “You are instructed that, if you believe from the evidence that plaintiff and Mr. Davidson, representing the defendant, entered into an agreement whereby she released the defendant from all liability for damages, and that she accepted $100 and retained it, your verdict must be for the defendant, unless you find that she did not know what she was doing at the time.”

A comparison of these instructions will show that they cover practically the same ground. The jury is told in each of them that if, at the time Mrs. Berry signed the release, she knew what she was doing, the verdict should be for the defendant.

At the request of the plaintiff, the converse of the proposition was submitted. At the request of both the plaintiff and the defendant, the law of ratification by cashing the check on another day than Sunday was submitted to the jury. The jury was plainly told that its verdict must be for the defendant unless it should find that Mrs. Berry did not know what she was doing at the time she signed the release. This was equivalent to telling it that if, at the time Mrs. Berry signed the release, she knew what she was doing, the verdict must be for the defendant, although the jury might believe that she had since forgotten the occurrence. Her right to avoid the execution of the release is predicated upon the fact that she did not know what she was doing at the time she signed it.

The jury were the judges of the credibility of the witnesses, and their 'belief, from the evidence, that the plaintiff had forgotten that she signed the release was included in the question of whether or not she knew what she was doing when she did sign it.

Finally, it is insisted that the evidence is not legally sufficient to warrant a finding that the plaintiff did not know what she was doing when she signed the release.

The undisputed evidence shows that the plaintiff was in a hospital controlled by the railroad company at the time the release was signed. The claim agent admits that her son-in-law, who was also an employee of the company, had requested him not to obtain her signature to a release without his presence. The claim agent says that he did not comply with her son-in-law’s request because the plaintiff said that she was capable of attending to her own business, and that she knew what she was doing when she signed the release.

The claim agent is corroborated by the attending physician and the nurses, but this did not, as a matter of law, overcome the testimony given on this point by the plaintiff and her witnesses. According to her testimony, she was badly injured, suffered great pain, and did not remember anything at all about signing the release. She was kept in the hospital for ten days.

It is true that the plaintiff’s own testimony that she did not remember the occurrence at all is a very general statement, but when we consider her nervous and excited condition, together with her advanced age, it cannot be said that her testimony is without weight. She is corroborated by the testimony of her daughter, who said that she visited her mother every day while she was in the hospital and that she was in a very nervous condition all the time. She stated further that her mother was out of her head for a part of the time. The plaintiff signed a release for $100, and the claim agent admits that she was contending all the time that she was badly hurt. This release did not include her hospital expenses, which amounted to $55. When all these matters are taken into consideration, it cannot be said that the evidence on this phase of the case is not legally sufficient to sustain the verdict. Truman Cooperage Co. v. Crye, 137 Ark. 293.

Finally, it is insisted that the judgment should be reversed because the court refused to grant the defendant a continuance because of surprise at the plaintiff’s testimony. The alleged surprise came about in this way: the plaintiff’s complaint alleged that she had been injured while alighting from the train by the negligent jerk of the train, which threw her down. Eye-witnesses of the accident testified for the plaintiff in accordance with this allegation of negligence, and told how she was injured by being thrown on her back by a sudden starting and stopping of the train while she was walking out of the coach door with a view of alighting from the train.

The plaintiff finally took the stand in her own behalf. She testified that she started out of the door of the coach, and that another train hit her in the back, thereby causing her injury. The defendant’s attorney then moved for a continuance on the ground of surprise. The plaintiff’s attorney then announced that the plaintiff did not rely for a recovery upon the fact that she had been struck by another train, but based her right to recovery solely on the ground that she had been thrown upon her back by a sudden jerk of the train. The case was submitted to the jury on this theory. Indeed, the testimony is practically undisputed that the plaintiff was hurt by the train starting and stopping suddenly, thereby causing her to fall on her back. The only dispute in the testimony on this point is whether or not the train stopped with a sudden jerk, or whether it was stopped in the -usual way. The brakeman testified that he knew the plaintiff and had told her to keep her seat until he told her to leave. This testimony is disputed by the evidence for the plaintiff; but, as we have said, there was no dispute in the testimony about the plaintiff’s being hurt by falling on her back. All of the evidence showed she was thrown down on the platform of the coach as she walked out of its front'door. It would have been impossible for her to have been injured by another train, and we do not think there was any possibility of the jury having been misled by her testimony.

Therefore the court did not abuse its discretion in refusing to grant the defendant a continuance.

We .find no reversible error in the record, and the • judgment will b.e affirmed.


author: Smith, J.

text:
    Burns v. State.
    Opinion delivered June 12, 1922.
    Intoxicating liquors — making mash for distillation — evidence.— ' In a prosecution for making mash, wort or wash fit' for distillation ■ of intoxicating liquors, where defendant testified that ■ he made mash to feed-hogs, proof by the ofiicers searching the premises that "his .wife emptied vessels .through the.kitchen floor- Into a garbage can and that they found several bottles and a jug • smelling of whiskey, four 'barrels of mash in a state of fermentation, a trough with worm- and pipe, under, which there had been a fire, a still, etc., was competent and sufficient to support a finding of guilt.
    Appeal from Lafayette Circuit Court; George R. Haynie, Judge;
    affirmed.
    No brief for appellant.

      J. 8. Utley, Attorney General; Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was indicted and convicted for having made á “mash, wort, or wash fit for and to be used in the distillation of alcoholic, vinous, malt, spirituous, and fermented liquors,” and has appealed. No brief was filed on behalf of appellant; but the Attorney General has set out and discussed all the assignments of error contained in the motion for a new trial. These are, chiefly, that the evidence is not sufficient to sustain a conviction; and that error was committed in admitting testimony. These assignments of error will be discussed together.

The sheriff, accompanied by three deputies, went to appellant’s home to serve a search warrant. They arrived after dark, and were told by appellant that his wife had retired for the night, and the officers consented to delay the search until appellant’s wife had dressed. After waiting some time the officers discovered that appellant’s wife was busilv engaged in emptying some vessels through a hole in the kitchen floor; so they shoved the door of the kitchen open and found appellant’s wife in the act of pouring a mash.into .a garbage can on the outside. Some of the mash had also been poured through a hole in the kitchen floor. Several bottles and a jug were found, all smelling’ of whiskey. • Three barrels of mash were found, which had been made of chops and water and sweetened with molasses,. One barrel of the mash was sweetened with silgar; The' mash was 'in-a state of •fermentation, and-was just; suck mash as witnesses had seen used in making whiskey. Pieces of Irish potatoes were found in some of the mash, and one of the officers, who testified that he was familiar with the process of making whiskey, stated that the potatoes were ■ used to hasten fermentation.

The sheriff and the other officers found a gallon of white whiskey and several empty vessels which had contained whiskey. They searched the premises, and on a little branch, about a hundred yards from the house, down a pathway leading from appellant’s house, they found a trough upon a rack, and the trough had a pipe through it, and there had been a fire under the trough. The next morning the officers found a little mound in a cornfield, into which they dug and found a still. The officers had seen similar stills used in making whiskey, and the still which they found showed that it had had a fire under it and smelled of the mash which had been boiled in it. Tracks were found leading from appellant’s house to the trough and to the mound in the field. A worm was found in the trough in the branch. The officers testified that they tasted the mash and that it was in a state of fermentation, and that it tasted and smelled like whiskey. One of the officers saw appellant’s wife pouring whiskey out of a fruit jar at a window. The officer, who was familiar with the process of manufacturing whiskey, testified that the different barrels of mash would not all make the same kind of liquor; that some would make whiskey; and other barrels would make rum; while the barrel which contained the chops, sugar and potatoes would make what the witness called a “Duke’s mixture,” but he testified that it would all be alcoholic and intoxicating.

Appellant admitted that he made the mash, but; testified that he made it for, and fed it to, his hogs, and that he had made no whiskey. Appellant owned a sow and seven small pigs, and he testified that he fed them sour ■mash, and that the mash on hand had been prepared for that purpose.

An exception was saved to the action of the court in permitting a witness named Burns to testify that on another occasion he had found a slop which resembled the mash in question at appellant’s house.

On his cross-examination appellant was asked, over his objections and exceptions, about the whiskey in his house at the time it was raided. He did not deny having whiskey in his possession, but he did deny having made it or having made a mash to be used for that purpose. Some of the barrels of mash found in his house were- covered with cloths. He explained that this had been done to keep the dust out of it.

We think the testimony set out was competent; and that it is sufficient to sustain the conviction. Appellant was accused of having made a mash, wort or wash fit for distillation; and the testimony objected to tended to show that he had committed that crime. In the case of Logan v. State, 150 Ark. 486, we defined the phrase, “fit for distillation,” contained in the statute under which appellant was convicted, as meaning that the mash was intended for use in making alcoholic liquors, and not as meaning merely that it was adapted to or capable of being used for such purposes. Appellant testified that he had made the mash for a lawful purpose, to-wit: as feed for his hogs. The testimony objected to tended to show that the mash had been made for use in making whiskey, and it was therefore competent, and, as we have said, is sufficient to support the judgment, which must therefore be affirmed. It is so ordered.


text:
    House v. Road Improvement District No. 4.
    Opinion delivered June 12, 1922.
    1. Statutes — amendment by reference to another statute.— Under • Const. Ark. 5, § 23, providing that no law shall he amended, or its provisions ex-tended by reference to its title only, but so much as is amended or extended must be reenacted and published at length, held that Eoad Acts 1919, No. 597, as amended by Acts 1920, No. 462, creating the St. Joe and Witt Springs Road Improvement District of Searcy and Newton counties, is void by reason of adopting provisions of Acts 1915, No. 338, by reference merely, instead of reenacting them at length; also because the latter act, so referred to, makes no provision for improving roads where the lands to be taxed therefor are situated in more than one county.
    2. Statutes — amendment by- referen ce to another statute.— ■Const. Art. 5, § 23, providing that no,law shall be amended or its provisions extended or conferred by its title only, but so much as is revived, amended, extended or conferred shall be reenacted and published at length, does not apply to statutes which are in themselves complete, though they refer to and adopt preexisting statutes. .
    3. Statutes — void act not validated by subsequent act. — Where an act creating a road improvement district was void and inoperative, a subsequent act cannot validate assessments for road improvement work made under the original act.
    Appeal from Searcy Chancery Court; Ben F. Mc-Mahan, Chancellor,
    affirmed.
    STATEMENT OP PACTS.
    Walter E. Orthwein brought this suit in equity against Road Improvement District No. 4 of Searcy and Newton Counties to recover the sum of $2,000, the amount of a certificate of indebtedness issued to him by the commissioners of said district for preliminary expenses, and to have the same declared a lien upon all the lands of said district.
    The commissioners of the improvement district filed an answer in which they admitted the execution of the certificate of indebtedness, and stated that it was issued for the purpose of defraying the preliminary expenses of said district.
    W. P. Cash and other property owners in the district filed an intervention and denied liability in the premises. The case was tried upon an agreed statement of facts substantially as follows: The improvement district in question was created by act No. 597 of the Acts of the General Assembly of the State of Arkansas for the year 1919, and act No. 462 of the Acts of the Special Session of the same General Assembly in 1920, amendatory thereof.
    The commissioners provided for in the act qualified, and for the purpose of defraying the preliminary expenses of said road improvement district borrowed the sum of $2,000 from Edgar J. Hahn and executed and delivered to him the certificate of indebtedness sued on herein for that sum. The certificate recites that said district is indebted to Edgar J. Hahn for money advanced for preliminary expenses in the sum of $2,000 and contains a promise to pay the same on or before the 1st day of January, 1920. The certificate of indebtedness was duly assigned to Walter E. Orthwein. ' No part of the same has been paid.
    On the 2nd day of July, 1920, the chancery court of Searcy County, in a suit wherein W. F. Cash and other property owners were plaintiffs and said improvement district was defendant, entered a decree of record holding said improvement district void and enjoining said commissioners from borrowing money, selling bonds, or doing any other act for the purpose of carrying out the proposed improvement. No appeal was prosecuted from that decree.
    During the pendency of the proceedings Walter E. Orthwein died and the cause was revived in the name of J. W. House, Jr., as special administrator of his estate.
    The court found that the act under which said district was attempted to be created was void, and entered a decree dismissing the complaint of the plaintiff for want of equity. The case is here on appeal.

      Coleman, Robinson <& House, and Saye <& Saye, for appellant.
    Act No. 597 is an original act, complete in itself, and because it provided that the terms of the Alexander Road Law should govern in the affairs of the district, this was not an attempt to extend the general act by reference to its title only, and does not come within the inhibition of art.' 5. sec. 23,"Const, See'also, 102 Ark, 411; 103 Ark,' 299; 125 Ark. 64; 120 Ark. 167; 131 Ark. 59; 131 Ark. 291; 132 Ark. 609; 133 Ark. 380; 134 Ark. 30.
    The Legislature can, of course, create a road district which shall include lands in two counties. 130 Ark. 507. By following the accepted practice of adopting a construction which will give effect to a statute if possible, rather than hold it void (25 R. C. L. secs. 242-243 Statutes) and bearing in mind that there is also authority for extending the singular number mentioned in the statute to apply to several persons or things (25 R. C. L. sec. 225, Statutes; Ann. Cas. 1913-C 266) we find ample authority in the Alexander Road Law to make assessments in both counties, and for the collection thereof.
    No brief for appellee.
   Hart, J.

(after stating the facts). The Legislature of 1919 passed a special act for the creation of Road Improvement District No. 4 of Searcy and Newton Counties, Ark., to be known as the St. Joe and Witt Springs Road Improvement Distict. Road Acts of Ark. of 1919, vol. 2, p. 2211. Sec. 1 of the act describes the territory embraced in the district. It contains lands in both Searcy and Newton counties in the State of Arkansas.

■ Sec. 2 of the act provides that the district shall be a local improvement district under the terms of act 338 of the General Assembly of the State of Arkansas for the year 1915, entitled, “An act providing for the creation and establishing of road improvement districts for the purpose of building, constructing and maintaining the highways of the State of Arkansas.” Said act was approved March 30, 1915, and is commonly known as the Alexander Road Law. Acts of 1915, p. 1400.

See. 3 names the commissioners and makes it their duty to improve the highways designated in the act.

Sec. 5 provides that said commissioners shall have the power to borrow money and issue negotiable bonds for the purpose of carrying out the work and to do all acts necessary for making the improvement in accordance with the provisions of said act 338.

The commissioners proceeded with the construction of the improvement as contemplated in the act.

The legality of the district was attacked by landowners of the district, and it was held void by a decree of the chancery court entered of record on July 2, 1920. The same holding was made in the chancery court in the present case, and no recovery was allowed on the certificate of indebtedness sued on.

It is first contended that the chancery court erred in holding that the act in question violates art. 5, sec. 23 of the Constitution of 1874, which provides that no law shall be revived, amended, or the provisions thereof extended, or conferred by its title only; but so much as is revived, amended, extended or conferred shall be reenacted and published at length.

The prohibition of the Constitution referred to "is directed against the practice of amending or revising statutes by additions or other alterations which, without the presence of the original act, are usually unintelligible and misleading.

There is, however, a class of statutes known as reference statutes, which do not encroach upon this or any other constitutional provision. They are statutes in original form and in themselves complete; but refer to and by reference adopt pre-existing statutes. The two statutes are separate and distinct legislative enactments, each having its appropriate sphere.

But it is not necessary, in order to avoid a conflict with the section of the Constitution just referred to, to reenact a general law wherever it is necessary to resort to it to carry into effect the provisions of a special statute. In such cases the general statute is not made a part of the special statute. The right, power, or duty is given by the special statute; but the direction or enforcement thereof is made to conform to the method of procedure of the general statute.

As we have already seen, the act under consideration designates lands in both Newton and Searcy counties •within the boundaries of the proposed road improvement district. It refers to the provisions of our general statute relative to the creation and establishment of road improvement districts to carry out its provisions. This general statute is known as the Alexander Road Law, and contains forty-four sections.

We need not set out the provisions of this act. It •will be readily ascertained by reading it as a whole that its provisions in clear and unmistakable language show that it was the purpose of the framers of the act to confine the road improvement districts formed or constructed under it to the borders of a single county. It makes no provisions for improving roads where the lands to be taxed therefor are situated in more than one county.

In the present case the lands to be taxed to construct the improved road are situated in both Searcy and Newton counties, and on that account the road could not be constructed under the provisions of our general statute for the creation and establishment of road improvement districts known as the Alexander Road Law. Acts of 1915, p. 1400.

.The case called for the application of the rule laid down in Wood v. Willey, 139 Ark. 586. In that case it was held that an act of the General Assembly of 1919 intending to create the Grady and Arkansas River Road Improvement District of Lincoln and Jefferson counties was void for the failure of the act to provide any machinery to assess against the betterment of the Jefferson ■County lands their proportionate share of the cost of the improvement. The special act under consideration provides that it shall be the duty of the commissioners to improve highways laid out heretofore or hereafter by the county court of Searcy County. It provides that vacancies shall be filled by appointment by the county court of Searcy County.

As we have said, it contemplates that the improvement shall be made in accordance with the provisions of the Alexander Road Law. It provides that the commissioners shall cause an assessment of' benefits to be made and the levy of the lands of the district for the taxes to be made in accordance with the method set forth in that act. No other method is provided in the act for constructing the improved roád contemplated by the terms thereof, and it necessarily follows that the act is inoperative and void. This results, as we have already seen, because no authority is given by the special act to the county court of Searcy County to levy a tax on the lands included within the boundaries of the district in Newton County, and the provisions of the Alexander Road Law do not contemplate that the county courts of two counties shall act together in constructing an improved road under the provisions of that act.

The special act passed at the special session of the Legislature in 1920 for the purpose of confirming and validating the assessments under the original act creating the district could not affect the purpose for which it was intended. If act No. 597, passed at the regular session of the General Assembly of 1919, was inoperative and void, the Legislature in special session in 1920 could not give validity to a void act. In other words, if the original act attempting to create the improvement district was dead because it was inoperative, a subsequent act could not vitalize it or validate void assessments for road work attempted to be made under it. State v. Little Rock, Mississippi River and Texas Rd. Co., 31 Ark. 701, and Sembler v. Water & Light Imp. Dist., 109 Ark. 90.

It follows that the decree will be affirmed


text:
    Nichols v. Brinkley Mercantile Company.
    Opinion delivered June 12, 1922.
    1. Corporations — representation by manager. — Where the manager of a corporation, who was also a partner in an independent business, made up a statement of the indebtedness of the partnership to others who took over the business and assumed the debts of the partnership, his knowledge that the corporation’s claim was not included in the statement could not be imputed to the corporation.
    2. Partnership — liability on debt assumed. — Where defendants, who assumed the debts of a partnership on its dissolution, are sued by a creditor of the firm, they could not postpone collection of such claim until they could litigate a claim against one of the former partners for misrepresentation in making up a statement of the debts assumed which did not include plaintiff’s claim.
    Appeal from Monroe Circuit Court; George W.' Ciarle, Judge;
    affirmed.

      Mathis & Trice, for appellant.
    Where a person intentionally o.r by culpable negligence induces another to act upon his representations he will be estopped from denying the truth. 91 Ark. 141;' 89 Ark. 349; 55 Ark. 296.
    Ordinary prudence and diligence do not require one to test the truth of representations made to Mm by another. 89 Ark. 321.

      Bogle & Sharp, for appellee.
    Equitable estoppel is the effect of voluntary conduct of a party whereby he is precluded from asserting rights wMch might perhaps have otherwise existed, as against another person in good faith relied upon such conduct. 21 Corpus Juris 1113.
    No man shall be held bound by a proceeding to which he was not a party. 13 Ark. 214.
    A corporation may not be bound by the representations of its manager, even though his representations are untrue. 63 Ark. 212; 63 Ark. 268.
    A principal is not estopped by the conduct of his agent unless it be a matter in which the agent bad authority to act. 72 Ark. 62: 97 Ark. 43.

      An estoppel bars the truth to the contrary; the party setting it up must prove it strictly. 65 N. W. 604; 83 Fed. 725.
    A written contract cannot be contradicted or altered by parol evidence. 3 L. R. A. 308; 1 G-reenleaf on Evidence, sec. 275; 34 Fed. 239; 63 U. S. 22; 64 U. S. 23; 96 U. S. 544; 104 Ark. 475; 83 Ark. 283.
   Smith, J.

Appellee is a domestic corporation, and filed a ¡complaint containing the following allegations: In February, 1920, Elmo Chaney and J. Harvey Nichols were copartners in the business of constructing roads. Nichols and certain other persons made defendants herein entered into an agreement with Chaney under which the copartnership of Nichols & Chaney was dissolved, and Nichols and the other persons made defendants purchased the assets of the firm. The defendants, as a part of the purchase price, agreed to assume all of the obligations of the firm of Nichols & Chaney. At the time of such purchase the firm of Nichols & Chaney was indebted to plaintiff for merchandise in the sum of $523.70, and judgment was prayed for that amount.

The defendants filed their answer, which was accompanied by a motion to transfer to equity, and a motion to have Chaney made á party. The motions were overruled and exceptions saved.

The answer admitted the agreement under which the firm of Nichols & Chaney was dissolved; hut alleged that, preliminary to the making of that agreement and as a part thereof, the defendants demanded of Chaney a statement of the different accounts which the firm of Nichols & Chaney owed. Chaney, who kept the books of Nichols & Chaney, undertook to, and did, furnish what purported to be a complete statement of the indebtedness of Nichols & Chaney, and the statement so furnished did not include the account sued on. At the time the agreement was made under which defendants acquired the assets of Nichols & Chaney, Chaney was the manager of plaintiff. Defendants alleged that they relied on the statement furnished by Chaney as to the indebtedness of the firm, that they were induced to purchase its assets and assume its obligations in reliance on the correctness of said statement. Defendants alleged that Chaney, as bookkeeper for Nichols & Chaney and as manager for the plaintiff, knew the account sued on was outstanding and unpaid, and that plaintiff is therefore estopped to maintain this action. There was a prayer that Chaney be made a party and that judgment be rendered against him for the amount of the account.

A demurrer to this answer was sustained, and, upon defendants refusing to plead further, judgment was rendered against them for the amount sued for, and from that judgment is this appeal.

The contract under which the firm of Nichols & Chaney was dissolved is made an exhibit to the complaint, and it appears from it. that the -consideration to be paid Chaney was something over $19,000, of which $3,000 was paid in cash and the balance to be paid in installments.

It is not alleged that, in making the representations to defendants as to the indebtedness due by the firm of Nichols & Chaney, Chaney was acting for plaintiff. On the contrary, he was acting for himself. It is not alleged what Chaney’s authority was as manager, nor is it alleged that defendants contracted with him as the representative or agent of plaintiff. Upon the contrary, they contracted with him as a member of the firm of Nichols & Ohaney; and, if it be said that defendants had a right to rely upon the statement of Chaney as to the firm’s indebtedness because he was the bookkeeper and in possession of that information, it may be answered that this knowledge is not to be imputed to plaintiff, as Chaney was not purporting to act for plaintiff in furnishing this information. Plaintiff was not called upon for a statement of the account due it. The statement furnished was prepared by Chaney as a member of the firm of Nichols & Chaney and as bookkeeper for that firm. There.is no allegation that Chaney is insolvent. It appears, from the pleadings and the exhibits thereto, that defendants are indebted to him in a large sum of money, and if they were induced by the false representation of Chaney, as they alleged, to take over the assets of the firm of Nichols & Chaney and to assume its obligations, they have their action against Chaney.

Plaintiff’s cause of action is present and complete. The account is due and unpaid, and. defendants, in their answer, admit that, for a valuable consideration, they assumed its payment. There is therefore no reason why plaintiff should be postponed in the collection of its account until defendants have litigated with Chaney the question of his liability to them on account of his alleged false representations.

The demurrer was properly sustained, and the judgment is affirmed.


author: McCulloch, C. J.

text:
    Schweitzer v. Bean.
    Opinion delivered June 19, 1922.
    1. Wills — contest of will probated in another state. — The will of a person who had domicile in another State in which the will was probated, so far as it relates to the devolution of either real or personal property in this State, may be contested without violating Const. U. S. Ark. 4, § 1, providing that full faith and credit shall be given by each State to the public acts, records and judicial proceedings of every other State.
    2. Wills — insanity of testator — evidence.—In a will contest, evidence that a testator thought his daughter had slandered him, and that such was not true, held insufficient to show mental incapacity of testator.
    3. Wills — mental delusion. — A groundless belief manifest under suddenly aroused emotions and which lacks persistence and continuity affords no evidence of mental delusion, and the existence of such a groundless belief only settles into a disqualifying mental delusion when it is persisted in and pursued by a logical process of reasoning to an insane conclusion.
    4. Wills — mental delusion. — A belief, though unfounded, unreasonable or extravagant, does not constitute an insane delusion if based upon any evidence, however slight.

      5. Wills — insane delusion. — Where one conceives something extravagant and believes it as a fact, when in reality it has no existence, but is purely a product of the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a one is possessed of an insane delusion.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge,
    reversed.

      E. G. Mitchell and Shouse & Rowland, for appellant.
    Full faith and credit shall be given to the judgments of sister States. Art. 4, sec. 1, Const. U. S.; 134 TJ. S. 607; 193 Fed. 332; 40 Cyc. 1237; 52 S. W. 296; 45 S. W. 677; 27 S. "W. 1009. The judgment of probate in Dade County, Florida, was conclusive as to all matters of personal property, the doctrine of “lex domiciUi controlling. 143 Arle. 192; 103 Tenn. 1; 52 S. W. 296.
    The action of the court to vacate and testify was both arbitrary and prejudicial.
    Instructions 2, 3, 4, 5, 6, 7, 8 and 9, given by the court were abstract and misleading. A belief based on evidence, however slight, is not a delusion. 87 Ark. 280.
    Every man has a right to dispose of his property by will, as he pleases, within statutory limitations. 87 Ark. 243.
    The evidence was not sufficient to sustain a verdict against the will. 160 S.- W. 1071; 62 Pac. 605; 169 S. W. 852; 66 N. E. 371; 192 111. 525; 61 N. E. 652; 25 Pac. 769; 31 Pac. 453; 33 Pac. 542.

      George J. Grump, for appellee.
    The motion to dismiss and. the demurrer to the jurisdiction of the court were properly overruled. 143 Ark. 192.
   McCulloch, C. J.

This is a contest, originating in the courts of Boone County, of the will of L. H. Schweitzer, who died on November 16, 1920, in the State of Florida, where he resided.

The testator owned property, both real and personal, in Boone County, and after the last will and testament was regularly probated in the State of Florida it was filed for probate in the probate court of Boone County.

Appellee, Mrs. Elsie Bean, who was the daughter of the testator, appeared and contested the will, and the cause was tried in the circuit court of Boone County on appeal. The trial before a jury resulted in a verdict against the validity of the will, and a judgment was rendered accordingly, from which an appeal has been prosecuted by the proponents of the will.

The ground of the contest is that the testator was mentally incapacitated to execute a will, in that he labored under an insane delusion that appellee, his daughter, had made statements derogatory to his moral character and had slandered him.

The first point urged by appellants is that the devolution of the personal property owned by the testator in this State is governed by the laws of the domicile of the State where the testator resided, and that, since the will had been duly admitted to probate in that State, .a contest of the will, so far as it concerns the personal property, cannot be had in this State, for the reason that this would be in violation of the requirement of the Federal Constitution (Art. IV, sec. 1, Constitution of. the U. S.) which provides that “full faith and credit shall be given by each State to the public acts, records and judicial proceedings of every other State.”

This question has been decided against the contention of appellants by this court in the recent case of Selle v. Rapp, 143 Ark. 192. It is true that real estate only was involved in that case, but the court construed our statute to give the right of contest here with respect to any property in this State. It necessarily follows from that decision that a testament relating to personalty as well as real property in this State may be contested here.

It is also contended that the evidence is not sufficient tc> sustain the verdict.

It appears from the testimony that Schweitzer formerly resided at Harrison, in Boone County, and that many years ago he and his wife, the mother of appellee and two other children, were separated and were divorced. Appellee and the other children took sides with their mother and went away with her, first removing to the State of Kansas and later to the State of Missouri. The testator and his wife divided all of the property he had at that time in an amicable adjustment made between them. The only complaint made about that incident was that appellee claims now that the testator took from her the sum of one hundred dollars which she had earned in raising and selling pigs from a sow which her father had given her.

It also appears that Schweitzer visited appellee once in Missouri and that, to a certain extent, better relations were restored between them, but that there was no complete restoration of confidence and affection.

During the spring and summer of the year 1916, which was about fifteen years after the separation between Schweitzer and appellee’s mother, Schweitzer sustained a fracture of one of the bones of his leg, and was confined to his room and bed for a considerable time. He was unmarried at that time and was living in Harrison with a family named Minyard, but the members of that family were not related to him. Appellee heard of her father’s misfortune, and came to Harrison for the purpose of making a visit. She stayed there about a week, and she testified in the trial below that during that peri on she spent about half the time with her father, and that she endeavored to induce him to take possession of another home and furnish it and permit her to stay with him and nurse him, and that he declined to move from the home of the Minyards. She denied that anything unfriendly took place between herself and her father during that visit. Appellee never saw her father again after she left Harrison on that occasion. She went back to her home in Missouri, and she introduced two letters which lie wrote 'to her during the autumn after her visit to Harrison. Those letters seem to be the basis of appellee’s contention that her father was laboring under an insane delusion and they are of sufficient importance in the discussion to copy them in full. The date of each letter is shown and they read as follows:

“The Home Insurance Company “New York
“(seal)
(Letterhead)
“Harrison Insurance Agency.
“Harrison, Ark., Nov. 16, ’16.
“Dear Elsie:
“Since writing you this a. m.,.I have changed my will, and I thought you ought to know how — as it was, Walter’s estate would share, equally with you, and I did not think we wanted it that way. I have made a codicil to my will giving Rose Elsie $500, and since I expect to keep my estate intact and at present value if not more, — I thought you would not feel hurt at my giving little Louie Schweitzer Winsted (my only namesake) $500. I had you made executrix — in Walter’s stead — -(place) to act with L. F. Eoff, who was an executor with Walter.
“While — with care — I may live to a ripe old age— yet my complaint — high blood pressure — is liable to take me off at any moment — this is why I am fixing my affairs, while I -can. I hope you are not only satisfied with my arrangement, but that you, are pleased — you get all now instead of y2 after the several $500 bequeathed to my nieces, the children, and Rose Elsie and little Louie — ■ My friends here are just as good to me- as they can be, and I owe them some recognition. I believe you will agree with me in this.
“Your loving
‘ ‘ Father.
“Harrison, Arkansas, Dec. 8, 1916.
“Mrs. Elsie Bean, Clarksdale, Mo.
“My daughter: I am sending you what I presume will be a little surprise. I have learned of your treachery and your attempt to blacken my good name and character, and too, when I was helpless; and hoping the possibility ■ of another opportunity, I have in a just, newly made will disinherited you, giving you $1 only, with instructions to the administrator to mail to your address, and I ask you not to be at my funeral. I do not want any one as deceitful as you seem to have become pretending to mourn over my remains.
“The Schweitzer blood must in some way have all oozed out of your veins. I do not understand how yon could under any influence show the deceit you have, and be a Schweitzer.
“You need not ask for explanations.. You know the false and slanderous representations you made while here, while I was helpless. What should I expect if 1 were dead of one that would take such chances while I was alive? I want to say, however, that your statements did not injure me one whit; but on the contrary made sympathy for me, and lessened the respect they had for you, feeling that if your representations were true (and they knew they were false), you, if a true daughter, would have tried to hide.
“I am in perfect health, and have regained my usual weight. The doctor says ‘there is not a man in ten in as good health at my age.’ I expect to live ten or fifteen years yet and fight evil and the devil wherever I meet them.
“Your slandered Father.”

Appellee testified that she answered the last of these letters and protested her innocence of the charge of having slandered her father, and that she expressed to him continued affection and pleaded for his affection in return. She never heard from her father after the last letter copied above, and never saw him again.

It is inferable from the statements of these letters and the letters writen by Schweitzer to appellee that he had. made a will in which she was, to . some extent, the beneficiary, and that he made a slight change in this will at the time of the first ietter, and made another change disinheriting her at the time he wrote the last letter. But the testament now proposed for probate was not executed until September 15, 1919. Schweitzer had married again in the meantime, and this will was executed in the State of Florida, where he was then residing.

Appellee seems to rely entirely upon the effect of these two letters and her own testimony to the effect that the charge against her of slandering her father or saying anything derogatory to his moral character was unfounded. There is nothing else in the record tending in any degree to prove that the testator was, at the time he made this will, laboring under an insane delusion. We think that this testimony, standing by itself, is wholly insufficient to justify the finding by the jury of mental incapacity upon the part of the testator.

The last letter written by the testator to his daughter is sufficient only to show that he entertained a violent feeling of anger, dislike and resentment, but it does not, of itself, even coupled with the testimony showing that this feeling was unfounded, establish the existence of mental unsoundness.

The law on this subject was fully discussed by this court in the case of Taylor v. McClintock, 87 Ark. 243, and in the opinion it was stated that “a perversion of the sentiments and affections — manifested in jealousy, anger, hate or resentment, however violent and unnatural, will not defeat a will unless the emanation of a delusion.” Nor is it shown that the testator persisted in the belief indicated in his letter that his daughter had slandered him, unless it is the fact that he never responded to her letters and finally made the will now proposed disinheriting his daughter. But this will was made under such circumstances that the inference is not warranted, in the absence of further proof, that he persisted in his belief concerning his daughter’s conduct towards him. The will was, as before stated, made nearly three years later and under wholly different circumstances, the testator having married again' and removed to the State of Florida.

A mere groundless belief manifested under suddenly aroused emotions, and which lacks persistence and continuity, affords no evidence of mental delusion. The existence of such a groundless belief only settles into what the law recognizes as a disqualifying mental delusion when it is persisted in and “pursued by a logical process of reasoning to an insane conclusion.” Taylor v. McClintock, supra; 1 Wharton & Stille Med. Jur. sec. 1020 et seq.

In addition to that, there is nothing in the record to show that this unfounded charge made by the testator against his daughter was not based on some evidence. Appellee testified herself that she was innocent of the charge, but this does not show that the testator himself had no evidence of such misconduct. Several witnesses, in fact, testified that appellee while visiting in Harrison at the time that her father was afflicted made serious charges reflecting upon his moral character, and there is nothing in the evidence which justifies a finding that these charges were not communicated to her father. Appellee denied that she made these statements concerning her father, and the truth of that matter was, of .course, a question for the determination of the jury. But, as before stated, this does not .show that the testator did not receive some evidence that his daughter had, in fact, made such statements derogatory to his character.

A belief, however unfounded, unreasonable or extravagant, does not constitute an insane delusion if it is based upon any evidence, however slight. In Taylor v. McClintock, supra, it was said: “A belief founded on evidence, however slight, necessarily involves the exercise of the mental faculties of perception and reason; and where this is the case, no matter how imperfect the reasoning process may be, or how erroneous the conclusion reached, it is not an insane delusion. ’ ’•

The definition of an insane délusion, which we must take as a..guide in the present case, was definitely and concisely stated in Taylor v. McClintock, supra, is as follows: “Where one conceives something extravagant, and believes it as a fact, when in- reality it has no existence, but is purely a product of the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a one is possessed of an insane delusion.” In support of the correctness of this definition we cited many authorities, among which is the leading English case of Dew v. Clark, 3 Add. Ecc. 79; and there are many other authorities which might be cited giving the definition in substance the same. For instance, the Kentucky Court of Appeals in a comparatively recent decision stated the following definition: “An insane delusion is an idea or belief which springs spontaneously from a diseased or perverted mind without reason or without foundation in fact; it is distinguishable from a belief which is founded upon prejudice or aversion, no matter how unreasonable or unfounded the prejudice or aversion may be. If- it is the product of a reasoning mind, no matter how slight the evidence upon which it is based, it cannot be classed as an insane delusion.” Coffey v. Miller, 160 Ky. 415, 169 S. W. 852.

The evidence in this case fails to come up. to the requirements of that definition. The groundless belief was not shown to have been permanently persisted in, nor is it shown that there was no evidence upon which it was based. There was no other evidence in this case by way of expert witnesses or otherwise to establish mental weakness or incapacity on the part of the testator. Not a single witness testified that he had any eccentricities, much less indications of insanity, either partial or general. On the contrary, numerous witnesses, one of whom qualified as an expert on the subject, testified that they had known Schweitzer for many years and'that he gave no indications of lack of mental capacity.

If the verdict in this case be sustained, it must be upon bare inference from the fact that he stated in his letter to his daughter his belief in the groundless charge and subsequently made his will disinheriting her, that he persistently labored under this belief, unsupported by any evidence whatever, and against all arguments and proof to the contrary.

The judgment is therefore reversed, and the cause will be remanded for a new trial.