text:
    Pettit-Galloway Company v. Womack.
    Opinion delivered February 9, 1925.
    1. Estoppel — silence.—For silence to constitute an estoppel, there must be both the opportunity and the duty to speak and the action of the person asserting the estoppel must he the natural result of the silence, and the party maintaining silence must be in a situation to know that some one is relying thereon to his detriment.
    2. Estoppel — change in system op heating — acquiescence.— Where plaintiffs contracted to install an overhead heating system in defendant’s buildings under direction of his architects, but, on discovering that an up-feed system could be installed for less money with same efficiency, plaintiffs were instructed by the architects to make the change, held that defendant, who knew of the proposed change and made no objection, was estopped to refuse to accept same.
    3. Contract — conclusiveness of architect’s decision. — Where a contract for installing a heating system provided that the architects should have general supervision and direction of the work and decide on all claims of the owner or contractor, the architects’

      decision approving the work was conclusive, in the absence of gross mistake or failure to exercise an honest judgment in this matter.
    Appeal from Saline Chancery Court; J. P. Henderson, Chancellor;
    reversed.
    STATEMENT OP PACTS.
    Pettit-Galloway Company brought this suit in equity against Chas. H. Womack to foreclose a mechanic’s lien for $3,786.50, alleged to be due it for installing a plumbing and heating system in a theatre and two stores belonging to the defendant. The suit was defended by Womack on the ground that the plaintiff had not complied with its contract in installing the heating plant, and had installed a wholly different system from that provided in the contract.
    On October 17, 1919, Pettit-Galloway Company entered into a written contract with Chas. H.' Womack of Benton, Arkansas, to supply all the materials and perform all the work necessary to installing a plumbing and heating system in a theatre building and two stores at Benton, Arkansas. The contract recites that it was prepared by Sanders & Ginocchio, who were the architects, and who had prepared the-specifications under which the work was to be done.
    Section 3 of the specifications, which are made a part of the contract, provides that the work -shall be executed in conformity with the drawings and instructions furnished by the architects. It further provides that the architect shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the building.
    Section 9 provides that the architect shall have general supervision and direction of the work, and that he is the agent of the owner only to the extent provided in the -contract. ' 'This section also recites that, inasmuch as the architect is the interpreter of the conditions of the contract and the judge of its performance, he shall side neither with the owner nor -with the contractor, but shall use his powers under the contract to enforce its faithful performance by both.
    Section 10 provides that the architect shall make decisions on all claims of the owner or contractor, and on all other matters relating to the execution and progress of the work or the interpretation of the contract documents.
    Section 13 provides for an inspection of the work as it progresses by the architect.
    Section 14 provides for the removal by the contractor of all work condemned by the architect as failing to conform to the contract, and that the contractor will properly replace such work in accordance with the contract, without expense to the owner.
    Section 16 provides that the owner shall give notice of' observed defects with reasonable promptness. It further provides that all questions arising under this section shall be decided under §§ 10 and 45. We have already given the substance of § 10. Section 45, when read in connection with § 10, provides the manner in which the architect’s decisions are subject to arbitration.
    According to the evidence for the plaintiff, what is usually called the oyerhead heating system was specified in the contract, because the architect was informed that the basement of the building in which the boiler was to be located would not have sufficient drainage to adopt what is called the up-feed system. Soon after the work was started, the representative of Pettit-Galloway Company found that the basement was deeper than the profile showed, and that he could put in the up-feed system of heating. The architect was there, and his attention was called to the matter. He immediately instructed the contractor to install the up-feed system instead of the overhead system. After the up-feed system had been installed, a test was made of it, and Womack told the contractor that he might draw the fires, as it had been demonstrated that it would heat the building. After-wards he refused to pay the plaintiff for its work on the ground that there had been a change from the overhead system to the up-feed system and that this change was a material one, and that the up-feed system was not nearly so adapted for the purpose of heating the building as the one he had contracted for.
    Four witnesses for the plaintiff, including the firm of architects who had charge of the installation of the system, and the superintendent in charge of the work for the plaintiff, and his foreman, all testified that the up-feed system was more efficient for heating buildings of this character with hot water than the overhead system. It was cheaper, and the contractor had agreed to deduct proportionately the amount provided under his contract. They also testified that there was greater danger of freezing in the overhead system, and that the pipes are exposed on the inside of the building under that system, which tends to make it more unsightly in appearance. They also testified that the change from the overhead to the up-feed system was not a material change, because the main purpose of the installation of the heating system was to heat the building at the least cost.
    On the other hand, two experts for the defendant testified that the chang’e from the overhead to the up-feed system of heating was a material one, and that the overhead system was much better than the up-feed system. The witnesses on both sides gave in detail the reasons for their belief in the efficiency of the respective systems. Other testimony will be stated or referred to in the opinion.
    The chancellor was of the opinion that the change from the overhead to the up-feed system in the installation of the heating* plant was a material change, and that, on this account, the plaintiff was not entitled to recover in the action. From an adverse decree the plaintiff has duly prosecuted an appeal to this court.

      W. R. Donham, for appellant.
    Substantial compliance with the contract is all that is required. Where work has been done in substantial compliance with the terms of the contract, or has been accepted, the contractor may, notwithstanding defects therein, recover the contract price, less the cost of correcting such defects. 64 Ark. 34; 79 Ark. 506; 97 Ark. 278; 105 Ark. 353; 122 Ark. 308; 147 Ark. 308; 157 Ark. 430. Here, there was not only a substantial compliance with the contract, but there was a literal compliance. No changes were made except those minor changes made by the architects which they were empowered by the contract to authorize. Appellee by his conduct and what he said at the time of the test of the heating system, must be held to have accepted the same.

      Brouse <£ McD'amiel, for appellee.
    The materiality of the change did not consist in the change from the overhead to the up-feed system alone, but also in the manner of the installation of the latter system, in that appellant did not dig out the earth and lower the boiler so, as to allow an up-feed system which would have been taken off at the top of the boiler. This resulted in the pipe being carried up under the concrete floor uncovered and exposed to contact with the earth, to dampness and rust; and while the original plan provided for expansion and contraction of the pipes, in the system used the pipes were cemented through the floor, which would necessarily result in breakage through expansion and contraction. The boiler itself was not properly covered according to the contract. There are limitations to the rule as to substantial compliance. The courts will not permit substitutions to be made by contractors or architects. 137 Wis. 169, 24 L. R. A. (N. S.) 327 and notes. When appellant departed from the contract and substituted an up-feed system, it was bound to take notice of the terms of the contract, and see that the change was authorized by the owner and the plans and specifications furnished for the different system. 64 Ark. 34. Use and occupancy of the building by the owner did not constitute a waiver of rights between himself and the contract, nor an acceptance of the heating plant. 16 L. R. A. (N. 8.) 489; 69 Atl. 417; 3 Ark. 324. To constitute substantial performance, a general adherence to the plans prescribed is not sufficient. It is not substantial performance if the builder wilfully, carelessly, or in bad faith fails to perform the contract according to its terms, or leaves the work incomplete in any material respect, or makes deviations or omissions that effect a large saving to himself and consequent loss to the owner, or that in fact substitute a new contract. 6 C. J. 57; 9 C. J. 743-44. Performance is a question of fact. 9 O. J. 748-49 par. 83. This question was submitted to the court upon conflicting evidence, and its findings are final. Walt v. Phillips, 166 Ark. 163; 163 Ark. 426; Id. 634; 161 Ark. 1; Id. 504.
   Hart, J.,

(after stating the facts). The view we have reached renders it unnecessary to decide whether or not the change from the overhead to the up-feed system was a material one, for the reason that we are of the opinion that, under the facts and attending circumstance, the doctrine of equitable estoppel applies, and the defendant has waived the right to have the overhead system of heating installed.

In 'discussing the doctrine of equitable estoppel, Professor Pomeroy says that acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract. 2 Pom. Eq. Jur. 3d. ed., § 818. The general doctrine is that, if one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. In other words, to constitute silence an estoppel there must be both the opportunity and the duty to speak, and the action of the person asserting the estoppel must be the natural result of the silence, and the party maintaining silence must be in a situation to know that some one is relying thereon to his detriment. Indiana Lumbermen’s Mut. Ins. Co. v. Meyers Stave & Mfg. Co., 164 Ark. 359, and cases cited; and Brownfield v. Bookout, 147 Ark. 555.

This principle of equity and of natural justice, under the facts and attending circumstances of this case, decides the case against the defendant. The undisputed proof shows that the contract was prepared by the architects of the defendant, and that they were to have general charge of supervising and directing the installation of the heating plant in the theatre and two stores of the defendant. The judgment of the architect about the kind of heating system was taken.. The overhead system was adopted because it was understood that the boiler was to be located in the basement, and that it could not be set deep enough in the ground to install the up-feed system and .at the same time to get proper drainage. This seems to have 'been understood by the plaintiff as well as the architect. The superintendent of the plaintiff discovered, before the work of installing the heating system had begun, that the basement would be deeper than the profile showed, and that proper drainage could be secured. He at once informed the architect of this fact. The architect then instructed him to change from the overhead to the up-feed system. It was known that it would cost somewhat less to install the up-feed system than it would the overhead system, and the plaintiff agreed to make a corresponding reduction in its price. The architect does not remember, but thinks that he told the defendant of the change a day or two later. In any event, the foreman of the defendant was told of the change.

It was also shown that the defendant lived in the town where the work was being done, and himself directed the superintendent of the plaintiff to make some minor changes in the work as it progressed. After the heating system had been installed, fires were placed in the engine and the water in the boiler heated for the purpose of testing the plant. The defendant was present, and, after the building had been sufficiently heated, ordered the fires drawn. He was not a witness in the case. Under the circumstances just detailed, it is fairly inferable that he knew that the change from the overhead to the up-feed system had been made, and that the change was due to the instructions given by his own architect. In the face of these facts, the defendant permitted the plaintiff to go ahead with the installation of the heating system under the changed plans. If he proposed to dispute the rights of his own architect to change the plans under the contract, good faith required that he should have done so before the plaintiff went to the trouble and expense of installing the heating system. The evidence shows that the plaintiff acted in perfect good faith in the matter, and in reliance upon the instructions given its agent by the architect of the defendant. The conscience of the defendant was therefore touched in the matter, and, after allowing the plaintiff to install the changed system without objection on his part, he must he presumed to have consented to the change, and the doctrine of equitable estoppel applies in this case.

Counsel for the defendant also seek to uphold the decree on the ground that the up-feed system was not properly installed, and that, on account of the defects in the work, the plaintiff should not be entitled to recover. On this point the testimony is in direct and irreconcilable conflict. On the part of the plaintiff it was shown by the architect and by the superintendent and foreman of the plaintiff that the work was done in an efficient manner, and that there was no defect in the work, except one minor leak, which they offered to repair. On the other hand, it was shown by the defendant that the system was not properly installed. The witnesses on each side gave in detail their reasons.for testifying as they did. Here again it is not necessary to decide where the weight of testimony on this point lies. The contract provides that the architect shall have general supervision and direction of the work. The work was performed according to the architect’s instructions and was approved by him. After the defendant refused to pay for the work, the plaintiff offered to make a test of the system and to show the defendant that it had been properly installed, and that it would heat the buildings in an efficient manner. The contract provided that the architect of the defendant should make decisions on all claims of the owner or contractor. He approved of the work done by the plaintiff, and, as we have already seen, it is fairly inferable that the defendant was present during all the time the heating plant was being installed. The architect’s decision is conclusive that the work was done according to' the specifications, and there is nothing-in the record to show that his decision was the result of gross mistake or the failure to exercise an honest judgment in the matter. Boston Store v. Schleuter, 88 Ark. 213; Carlile v. Corrigan, 83 Ark. 136; Hatfield Special School Dist. v. Knight, 112 Ark. 83; and Hot Springs Ry. Co. v. Maher, 48 Ark. 522.

The result of our views is that the chancellor erred in rendering a decree in favor of the defendant, and, for that error, the decree must be reversed, and the cause remanded with directions to the chancery court to render a decree in favor of the plaintiff, and for such further proceedings as he may be entitled to in equity.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Cox Cash Stores, Inc., v. Allen.
    Opinion delivered February 9, 1925.
    1. Infants — construction of child labor acts. — Child Labor Acts should be given such broad and liberal meaning as can be read therefrom so as to mitigate the evils or prevent the mischiefs they were intended to obviate.
    2. Master and servant — prohibited employment of child.— Employment of a child in violation of the statutes renders the employer guilty of negligence per se, and liable in damages if the child is injured as a result of such employment.
    3. Master and servant — failure to obtain employment certificate. — In an action for injuries sustained by a minor in an occupation not prohibited by Crawford & Moses’ Digest., § 7087, failure of the employer to obtain an employment certificate as required by § 7092, Id., was evidence of negligence to be considered with other testimony.

      Appeal from Pulaski Circuit Court, Second Division; Bichará M. Mann, Judge;
    reversed.
    STATEMENT OE EAOTS.
    Horace Allen, a minor, by Ms mother and next friend, Mrs. C. M. Allen, brought tMs suit against Cox Cash Stores, Inc., to recover damages alleged to have been sustained from personal injuries received while employed at one of the stores of the defendant.
    The trial of the case was commenced in the circuit court on the 29th day of September, 1923. According to the evidence for the plaintiff, he was then .sixteen years of age. During the month of August, 1921, Horace Allen was employed as a delivery boy at one of the defendant’s stores in the city of Little Rock, Arkansas, and it was his duty to make deliveries of groceries to .customers. He was {required to deliver groceries in boxes, and carried them on his shoulder as far as sixteen blocks. The boxes varied in weight, the heaviest being 65 or 75 pounds. On the 28th day of August, 1921, one of the clerks in the store filled a box about three or four feet long with groceries, consisting of sugar, salt meat and canned goods. When he had placed the box on his shoulder, preparatory to delivering the groceries, Mr. Noack, the manager of the .store, took a twenty-four pound sack of flour, and swung it up and let it fall on top of the groceries on his shoulder. When the sack of flour fell on the box of groceries, Horace Allen felt like one does when he hits his funny bone, and his whole arm seemed dead. One of the clerks then took the sack of flour off of the box, and helped the boy carry the groceries out on the front porch of the store. His arm. pained him from then on until the next Saturday, when he quit work. He was kept in bed until the 23d of September following, when he was sent to a hospital. Pour operations were performed upon him, and he has suffered constant pain ever since the day of his injury. His shoulder pained him at the time of the trial, at night and. in damp weather. He was fifteen years of age on the 30th of September following the date of Ms injury. An x-ray was made of tbe shoulder of Horace Allen, and two physicians and surgeons who examined him testified that the swollen condition of his shoulder and the abscess on it were probably caused by the injury which he detailed as having ¡been received when the sack of flour was dropped on the box of groceries on his shoulder.
    One of these physicians was the one who operated on Horace Allen. They stated in detail their reasons for believing- that the abscess which formed on his shoulder was caused by the fracture of a bone.
    On the other hand, physicians and surgeons were introduced by the defendant, who testified that the abscess could not have been formed in that way, but that it must have been the result of some disease which Horace Allen had. They told of the various diseases which might cause such an infection.
    B. F. Noaek, the manager of the store at which Horace Allen worked when he was injured, was also a witness for the defendant. According to his testimony, Horace Allen had a small wagon and a bioyle which he used in making deliveries. He denied giving- him packages to deliver that were too heavy for him to carry. He denied throwing or placing a sack of flour in a box of groceries on Horace Allen’s shoulder, as testified to by him. He said that nothing like that ever occurred.
    Other evidence in the record showed that the employment certificate required by our statute for minors under sixteen years of age had not been procured and kept on file by the defendant. It was shown by the defendant that the plaintiff represented himself to be sixteen years of age at the time he was employed.
    The jury returned a verdict in favor of the plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Coleman, Robinson & House, for appellant.
    The appellant concedes that the decisions of the court in the Nalley case, 146 Ark. 448, and the Qualls
      case, 146 Ark. 475, are correct, blit here the particular violation of the statute complained of did not constitute negligence per se, and the court erred in so instructing the jury. The employment in this case was not in an occupation forbidden by the statute for minors of appellee’s age. The only statutory violation was the failure to procure the employment certificate, and this, whether negligence per se or not, had no causal connection with the injury sustained, and could not have been the proximate cause thereof. 146 Ark. 448 ; 4 Ga. App. 159, 60 S. E. 1068; 184 Fed. 868; 106 N. Y. 443; 135 N. Y. Sup. 1036.

      Isgrig & Dillon and W. R. Donham-, for appellee.
    Employment without the certificate is made unlawful by the statute, and therefore constitutes negligence per se. O. & M. Dig. § 7092; 146 Ark, 475; 146 Ark. 448; 197 S. W. 866; 137 111. App. 588; 200 Fed. 933; 156 N. W. 971; 189 N. W. 186; 196 Fed. 340; 138 N. Y. S. 642; 96 So. 319; 5 Labatt, Master & Servant, § 1909; 20 N. O. L. 38.
   Hart, J.,

(after stating the facts). The main reliance of the defendant for a reversal of the judgment is that the court erred in telling the jury as a matter of law that the defendant was guilty of negligence because Horace Allen was not sixteen years of age at the time he received his injury, and that the employment certificate required by the statute had not been obtained and filed by the defendant.

On the other hand, counsel for the plaintiff contend that the defendant was guilty of negligence as a matter of law under the rule laid down in Terry Dairy Co. v. Nalley, 146 Ark. 448, and Fort Smith Rim & Bow Co. v. Qualls, 146 Ark. 475.

Child labor laws are the result of an enlightened public policy as declared by the lawmaking branches of the various States. In construing statutes of this sort, which are referable to the police power, and which are enacted to promote the common welfare, not only by fostering education and preventing immorality in young children, but preventing the injury and maiming of them in hazardous occupations, regard should be had to the end to be accomplished. To carry out the beneficent purposes of the Legislature, child labor acts should be given such broad and liberal meaning as can be read therefrom as to mitigate the evils or prevent the mischiefs which they are intended to obviate. In pursuance of its plan in the matter, the Legislature provided that no child under the age of fourteen shall be employed in any remunerative occupation, except that, during school vacation, they may be employed by their parents or guardians in occupations owned by them. Crawford & Moses’ Digest, § 7086. Thus it will be seen that the Legislature peremptorily prohibited the employment of children for hire under fourteen years of age, except by their parents or guardians during the school vacation.

In Terry Dairy Co. v. Nalley, 146 Ark. 448, we held that, if a child under the prohibited age should be employed and should be injured as the result of such employment, the person employing him would be guilty of negligence per se, and liable in damages. The rule is founded upon the principle that, when the Legislature definitely establishes an age limit under which children should not be employed, its intention was to declare that a child so employed did not have the discretion or judgment necessary to engage in work for hire, and that the hiring of him would tend to prevent him from going to school, and might subject the child to immoral influences or might retard his mental and bodily growth. In such cases the better reasoning is that the doing of the act prohibited is negligence as a matter of law. Hence we have adopted the view that the unlawful employment in such cases is negligence per se.

Section 7087 of Crawford & Moses’ Digest provides that no child under sixteen years of age shall be employed or permitted to work in certain designated occupations, which were thought to be dangerous to the life or limbs of children under that age, no matter what their physical or mental development might be.

Therefore in Fort Smith Rim & Bow Co. v. Qualls, 146 Ark. 475, we again held that the employment in the proscribed occupations of children under the age of sixteen, being absolutely prohibited, if such child should be injured while working at one of the prohibited occupations, his employer should be deemed guilty of negligence as a matter of law.

In both of these cases the employment was absolutely prohibited, and could not legally be done under any circumstances. Therefore we thought that the purposes of the statute would be best carried out by declaring that the employer in such oases should be deemed guilty of negligence as a matter of law, where the child within the prohibited age was injured while in his employment, in violation of the mandatory provisions of the statute. On account of the absolute prohibition against their employment, in neither of these cases could the defendant invoke the doctrine of contributory negligence or assumption of risk, and in such eases it is in accord with the better reasoning to hold that the employer is guilty of negligence as a matter of law where the employment could not by any manner be made lawful and the injury results from doing some act while engaged in the illegal employment.

' Section 7092 of Crawford & Moses’ Digest provides that no person shall employ any child under sixteen to work in any establishment or occupation unless such person employing such child procures and keeps on file an employment certificate as provided in the statute.

The evidence shows that Horace Allen was between the ages of fourteen and sixteen years at the time he was injured, and that his employment as a delivery boy for a grocery store was not one of the occupations from which he was absolutely prohibited in working. The record also shows that his employer did not have the employment certificate required by § 7092 of the Digest. The requirement of the employment certificate served several purposes. For example: it might be that a child between fourteen and sixteen years of age was not far enough advanced in school to warrant the superintendent in giving a certificate to allow him to work. Again, his mental or physical development might be such that it would be imprudent to allow him to work. Then, too, his morals might be such that it would be better to keep him in school and not to allow him in an occupation where he could run around the streets.

In the case before us, the occupation at which the minor was engaged when he was injured was not forbidden. It cannot be said that the failure to observe the statutory requirements as to the employment certificate as a matter of law brought about the accident complained of. The accident would have been as likely to occur had the emnloyment 'Certificate been obtained as' it did without obtaining it. Therefore the disregard of the statute is not conclusive evidence of negligence or negligence per se; but it is evidence for the consideration of the jurv. In other words, the court should not have told the jury that the defendant was guiltv of negligence as a matter of law under the circumstances of the case, but should have told the jury that the failure to obtain the employment certificate as required by law was evidence of negligence to be considered by the jury, along with the other testimony in the case, to determine whether or not the defendant was guilty of negligence in the premises.

The authorities on both sides of the question are found cited in a case note to 48 L. R. A. (N. S.) 664, and to 14 A. L. R. 825. The present action is one under the common law for negligence. Workmen’s compensation acts have no bearing on the present case. They usually provide some form of insurance, and are specific and definite as to the manner of procedure. In some of them illegal employment cannot be made the basis of a suit under the act. In other States the rule is different, and, although the employment may he illegal, yet the employee may proceed under the act. In some of the acts the parties submit to arbitration before an industrial commission, and, as above stated, in all of them the statutory mode of procedure must be followed, and the general rules of law applicable to common-law negligence do not control.

Some of the cases cited by counsel for appellee are cases where the employer sued a liability insurance company after the minor had obtained judgment against him. These cases do not apply. It has been well said that it is the common expression of insurance law that the policy is the measure of the rights of everybody under it. Therefore where the minor has obtained judgment against his employer, no matter what the rule of evidence as to negligence might be in the action, this would not control in a suit by the employer against the insurance company. The terms of the policy would be the measure of liability, no matter whether the court had held that, in a suit by a minor against the employer, the latter was guilty of negligence as a matter of law when he did not obtain the employment certificate, or whether the court should instruct the jury that such failure was evidence of negligence merely.

Other assignments of error are urged upon us for a reversal of the judgment, but the views we have expressed renders it unnecessary to decide them.

For the error in instructing the jury that the defendant was guilty of negligence as a matter of law the judgment must be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Collins v. Harris.
    Opinion delivered January 19, 1925.
    1. Guardian and ward — validity of sale of real estate. — The validity of a guardian’s sale of land of her wards was not affected by an erroneous designation of the wards’ names in the letters of guardianship where the order appointing appraisers and all subsequent proceedings correctly named the wards and an order was made before approval of the sale correcting the designation of the wards in the letters of guardianship.
    2. Guardian and ward — sale of land of wards — validity.—In proceedings by a guardian to sell the homestead of her wards, the omission of the order of sale to show that there were no debts due and unpaid by their deceased parent at the time the sale was made was cured by Acts 1919, No. 263, making conclusive the judgments and decrees of the probate court in guardians’ and administrators’ sales.
    Appeal from White Chancery Court; John E. Martinecm, Chancellor;
    affirmed.

      J. N. Rachels, for appellant.

      Brwndidge S Neely, for appellee.
   Smith, J.

The complaint filed by appellants in this cause alleged that their father, S. H. Collins, died seized and possessed of the lands described in the complaint, and that these lands constituted his homestead at the time of his death. After the death of S. H. Collins, his widow, the mother of appellants, married a man named Bailey, and Mrs. Bailey was appointed guardian for her children. The petition for her appointment as guardian referred to the children as Luther Bailey, age 17 years, and Hosie Lee Bailey, age 13 years. The name of the children was Collins, of course, but the mother used her then name of Bailey as the name of the children. The letters of guardianship which were issued upon Mrs. Bailey’s application named her wards as “Luther and Hosie Lee Bailey, minors, under the age of 18 years.”

Mrs. Bailey, as guardian, made application to the probate court for an order to sell the lands of her wards, and alleged in the petition therefor that this was necessary for the support, education and maintenance of said minors. This petition was filed February 25, 1913.

On March 8, 1913, appraisers were appointed to appraise the lands, and in this order the wards were for the first time referred to as being named Collins, and in all the subsequent proceedings they were referred to by that name.

The sale was duly made by the guardian, and a report thereof was filed with the clerk of the probate court on April 14, 1913, and on that day the probate court entered an order reciting the facts in connection with Mrs. Bailey’s appointment as guardian of her children, who had been referred to as being named Bailey, whereas their true name was Collins, the name of the guardian’s former husband and the father of the children, and the court, ordered that all former proceedings be amended to show the true name of the children, and that “all matters and proceedings had and done with relation to the sale of said land and the guardianship of said minors shall be taken to be as in the name of Luther and Hosie Lee Collins, and this order is made for the purpose of correcting the proceedings heretofore had in this matter.”

The sale was made to defendant’s grantor, and was duly confirmed, and a proper deed was executed and approved.

Appellants seek by this suit to set the sale aside, and assign two grounds therefor; first, that the whole proceeding was void because Mrs. Bailey was appointed as guardian for Luther and Hosie Lee Bailey, and there were no such persons, and second, the order of sale made by the probate court did not recite the facts that S. H. Collins owed no debts at the time of his death.

We think the erroneous application for and the issuance of letters of guardianship to Mrs. Bailey, as guardian for her children, who should have been designated as being named Collins, instead of Bailey, did not affect the jurisdiction of the court to make the sale. The order of the court appointing the appraisers recited the true name of the wards, and no one who desired to bid at the guardian’s sale could have been in doubt as to the interest which would be offered for sale and would be acquired by the purchaser thereat, and the order of April 14, 1913, which was-made on the day the report of sale was filed and before the sale was approved, corrected this error.

As to the other ground of attack, that it nowhere appeared from any order of the court that there were no debts due and unpaid by S. H. Collins at the time the order of sale was made, it may be said that this omission would be fatal to the validity of the sale upon the authority of the cases of Beakley v. Ford, 123 Ark. 383; Ex parte Tipton, 123 Ark. 389, and Rushing v. Horner, 130 Ark. 21. But, subsequent to the rendition of those opinions, the General Assembly, at its 1919 session, passed an act No. 263, entitled “An act to render conclusive judgments and decrees of the probate court in guardians’ and administrators’ sales.”

This act was reviewed and upheld in the case of Day v. Johnson, 158 Ark. 478, and we need not repeat here what we there said in the construction of the act. It will suffice to state what was there decided. In that case an administratrix and a guardian, both of whom were nonresidents of this State, had sold lands belonging to their intestate and wards at a private sale, and the effect of these irregularities on the validity of the administratrix’s sale and the guardian’s sale was considered.

We there held that the rule announced in the case of Apel v. Kelsey, 52 Ark. 341, had been reenacted, and that, under this act, all sales by guardians and administrators which had been made under orders of the probate court and which contained the recitals made jurisdictional by that act, were impervious to collateral attack, save for fraud or duress, with a proviso that the provisions of the act should not apply to attacks on probate sales made within twelve months after the passage of the act.

This act 263 does not require that the order of the probate court directing the sale shall show that there were no debts, and tbe order of court under which the land here involved was sold, contained the recitals which act 263 designated as essential and jurisdictional.

The complaint filed by appellants does allege that the order changing the name of the wards was fraudulently obtained, but it appears, from what we have already said in regard to the court’s order in this respect, that there was ho fraud in making this order, as it was made to conform with what appellants allege to be the truth, and it may be further said that there are no allegations of fact in the complaint upon which to predicate a charge of fraud in the procurement of the other orders of the court. It may also be said that this suit was not brought within twelve months after the passage of act 263.

Upon these facts the court below properly sustained the demurrer to the complaint of appellants, and that decree is therefore affirmed.


author: Humphreys, J.

text:
    Sprague v. Matthews.
    Opinion delivered January 19, 1925.
    1. Subrogation — dissolution op corporation. — Where a corporation settled with its creditors and with the consent of its stockholders, surrendered its charter, it had no claim against its stockholders to which any creditor could be subrogated.
    2. Estoppel — creditor settling with corporation. — A purchaser of land from a corporation who surrendered his bond for title and accepted the return of the amount paid was estopped from recovering any damage from the corporation or its stockholders whose stock subscriptions were unpaid.
    Appeal from Mississippi Chancery Court, Chicasawba District; J. M. Futrell, Chancellor;
    affirmed.

      Nelson & Grcmford, for appellant.
    The stockholders received assets of the corporation in the form of dividends at a time when the corporation was insolvent, Elliott on Private Corp. 3d. ed. par. 551, p. 606; Id. p. 309; 128 Ark. 620; 123 Ark. 575. The appellant in his business dealings with the corporation conld rely upon the corporation performing its duty by collecting the unpaid subscriptions and applying same to corporate indebtedness. 123 Ark. 575; 54 Ark. 580; 96 Ark. 1; 87 Ark. 521; 96 Ark. 1; 91 TJ. S. 60. Appellant is entitled to be subrogated to the rights of the corporation against appellee. 39 Ark. 542; 108 Ark. 555.

      Little, Buck & Lasley, for appellee.
   Humphreys, J.

Appellant instituted this suit in the chancery court of Mississippi County, Chicksawba District, against appellees to recover $1,613.50 lost by him on account of the alleged wrongful withdrawal and 'appropriation of funds to that amount by one of the appellees, S. J. Matthews, from his coappellee, Leachville Farm and Development Company, in which Matthews was a stockholder.

S. J, Matthews filed a separate answer denying the material allegations in the 'bill, and alleging that, prior to the institution of the suit, his coappellee had settled all of its debts, including appellant’s claim against it, and it surrendered its charter.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a dismassal of the bill for the want of equity, from which is this appeal.

The facts are in substance as follows: S. J. Matthews and nine associates organized the Leachville Farm and Development Company, in the month of October, 1919, for the purpose of purchasing, developing and selling real estate, with a capital stock of $32,000, consisting of 1,820 shares of the par value of $25 each. Each stockholder subscribed for 128 shares of stock, and made a cash payment thereon of $500 each, making a total payment of cash on stock to the corporation of $5,000. Most of this money was used in making the first payment on a 360.5-acre tract of land which the corporation purchased for $32,625. It made a cash payment of $3,638 and assumed an indebtedness thereon of $28,987 to Virgil MacKay, who had a deed of trust upon the land to secure such sum. The corporation divided the land into small tracts and sold them on deferred payments, giving’ the purchaser bonds for title. Sixty acres along the Blytheville-Manila-Leachville hard road was divided into tracts of approximately six acres each, numbered from one to ten inclusive and sold to the stockholders for $80 an acre upon deferred payments. S. J. Matthews purchased lot 2, and afterwards sold his equity therein to appellant for $913.50, and, by and with the consent of the corporation, assigned his contract of bond for title to him. Appellant assumed and agreed to pay the deferred payments to the corporation, and paid it $80 in 1920 and the same amount in 19'21. Practically all the other purchasers made default in the payment of the second installment, and, on that account, the corporation was unable to pay the mortgage upon the land to MacKay without requiring the stockholders to pay the ■balance due upon their stock. The corporation decided to raise enough from the stockholders to refund the purchasers of the several tracts the payments they had made thereon, and, upon the surrender of their bonds for title, to deed the whole track back to MacKjay in settlement of his mortgage, amounting to $28,980 and interest, if it could effect such an arrangement with the purchasers and MacKay. This arrangement was effected, and a sufficient sum was procured from the stockholders to refund the purchasers the amounts they had paid. Each purchaser, including appellant, accepted the amount he had paid to the corporation and surrendered his bond for title, whereupon the corporation conveyed the entire traqt to MacKay in full settlement of his debt. It then paid what few debts it owed, and surrendered its charter.

Afterwards appellant rented from MacKay the six-acre tract which he had purchased from Matthews. During the time appellant occupied the six-acre tract as purchaser he placed several hundred dollars in improvements thereon.

Appellant contends for a reversal of tlie decree upon the theory that the corporation did not force its stockholders to pay tlie 'balance due upon their stock and use the money to pay the mortgage indebtedness to MacKay so it could have carried out its contract with appellant and others. The argument is made that the method adopted for winding up the affairs of the corporation amounted to a withdrawal of the assets of the corporation by Matthews and the other stockholders, thus causing him to lose the amounts he paid Matthews and expended in improvements upon the property. In other words, he contends that he is entitled to recover his losses by subrogation to the rights of the corporation to collect the balance due it from Matthews upon his stock subscription. After settlement by the corporation with its creditors it had a right to surrender its charter, by and with the consent of its stockholders, and, when the stockholders decided to dissolve the corporation and discontinue business, it had no claim against the stockholders to which any one could be subrogated. Appellant clearly lost his rights to specifically enforce his contract by surrendering his bond for title for a consideration. In so doing he clearly estopped himself from recovering any damages from the corporation or its stockholders on account of unpaid subscriptions growing out of th© transaction. He did not allege or attempt to prove that any fraud was practiced upon him, either by the corporation or Matthews.

No error appearing, the decree is affirmed.


text:
    Arkansas Light & Power Company v. Cullen.
    Opinioin delivered January 26, 1925.
    1. Electricity — negligence causing death — jury question. — In an action for death from contact with a fallen live wire, evidence that defendant failed to equip its plant with kick-out switches to take care of its current in case of a fallen wire, and that a wire carrying 2300 volts was rotten and had been so for some time, and had fallen, and plaintiff’s intestate was killed while trying to remove the wire from a place exposed to children, held sufficient to submit to the jury upon the question of defendant’s negligence.
    2. Electricity — duty op electric company to inspect wires. — An electric company has the duty to inspect its wires at reasonable intervals, and to mend and keep them in repair.'
    8. Electricity — contributory negligence — jury question. — Where intestate, in grasping the wire which killed him, had reason to suppose that it carried only small voltage, the question whether he was guilty of contributory negligence was properly submitted to the jury.
    Appeal from Conway Circuit Court; J. T. Bullock, Judge;
    affirmed.

      T. D. Wynne and Strait & Strait, for appellant.
    Conceding tlie duties resting on electric companies with reference to constructing a system and the maintenance thereof, and that a prima facie showing of negligence was made out against the company when it was shown that decedent lost his life by coming in contact with the broken wire, yet the plaintiff is not entitled to recover in this action, since- under the uncontradicted facts in proof, the decedent’s conduct immediately preceding the accident, and the circumstances calling for the exercise of due care on his part, he was guilty of negligence per se in voluntarily exposing himself to a danger of which he had knowledge; and his -negligence not only contributed to, but was the proximate cause of, his death. 119 N. W. 127; 128 S. W. 1062; 6 L. E. A. (N. S.) 290; 158 S. W. 200; 99 S. W. 1153.

      Edward Gordon, -for appellee.
    As to the duty of an electric company with reference to placing its wires, maintaining proper insulation, making reasonable and proper inspections, and exercising reasonable care to prevent accidents, see 9 R. C. L. 1211, § 20; Id. 1216, § 23; Id. 1217, § 25. It is admitted in this case that the wires were not properly insulated for 2300 volts of electricity in tbe first place, and it is in proof that tbe insulation on the wires in many places was rotten; also that the company had not equipped their plant either at Russellville or at Morrilton with hick-out switches. Contributory negligence was not pleaded, but only assumed risk, as a defense. Appellant was not entitled to have the question of contributory negligence submitted to the jury. 48 Ark. 461. And assumed risk was not involved in the case, since that grows out of contract relations. 110 Ark. 464; 92 Am. St. Rep. 319; 77 Ark. 372, 373-374; 135 Ark. 489. The facts speak for themselves in this case and cast upon the appellant the burden of showing that it was not negligent. 26 L. R. A. 812; 59 Ark. 215; 89 Ark. 538; 82 Ark. 424 ; 54 Ark. 621.
   Humphreys, J.

This suit was instituted in the circuit court of Conway County against appellant by appellee, in the capacity of administrator of the estate of William Cullen, Sr., deceased, for compensatory and punitive damages on account of the death of said deceased, caused by coming in contact with an electric wire heavily charged with electricity, through the alleged negligence of appellant.

Appellant filed an answer to the complaint denying the material allegations thereof, and, by way of further defense, pleading contributory negligence on the part of appellee’s intestate.

The cause was submitted upon the pleadings, testimony, and instructions of the court, which resulted in a verdict for compensatory damages in the sum of $3,000, from which is this appeal.

The court correctly instructed the jury upon the issue of negligence, contributory negligence, and measure of damages. While each instruction was objected to and the objections properly preserved, it is not contended, in the brief of learned counsel for appellant, that any one of the instructions given by the court was erroneous and prejudicial to appellant’s rights. The contention is made, however, that the court committed reversible error in refusing to give certain instructions requested by it, including its request for a peremptory instruction. We have carefully examined appellant’s requested instructions Nos. 3, 4, 5, 6 and 7, which were refused by the court, and, in so far as they announce the law applicable to the facts in the case, they are substantially covered by the instructions which the court gave. We also think that the peremptory instruction requested by appellant was properly refused. We cannot agree with appellant that the undisputed evidence revealed that the death of appellee’s intestate was not due. to negligence on the part of appellant. On the contrary, it was shown that appellant did not equip its plant at Morrilton with kick-out switches, commonly used by such plants, to take care of the current on lines which should break and fall to the ground along the streets where they were stretched. Evidence was also introduced tending to show that the wire with which appellee’s intestate came in contact had broken and fallen to the ground because it was rotten, and that it carried 2,300 volts of electricity, which rendered it dangerous and deadly to the touch. Evidence was also adduced tending to show that the wire remained in this condition for a considerable length of time before being repaired. The evidence detailed above was of a substantial nature, and sufficient to sustain the finding of the jury to the effect that the death of appellee’s intestate was the direct and proximate result of the negligence of appellant.

“It is well settled that it is the imperative duty of an electric company not only to install proper appliances but also to make reasonable and proper inspection of such appliances and to use due diligence to discover and repair defects therein, and a failure to do so constitutes negligence.” 9 R. C. L., § 25, p. 1217.
“From the very nature of its business, an electric company using highly charged wires owes the legal duty, irrespective of any contract relation, toward every person who, in the exercise of a lawful occupation in a place where he has a leg’al right to be, is liable to come into contact with the wires, to see that such wires are properly placed with reference to the safety of such persons,” etc. 9 R. C. L. § 20, p. 1210.

It follows, of course, from the principle thus announced, that the wires should be inspected at reasonable intervals, mended, and kept in repair. Haynees v. Raleigh Gas Co., 26 L. R. A., p. 812 (N. C.).

Neither can we agree with the contention of appellant that the undisputed evidence revealed that appellee’s intestate was guilty of contributory negligence.

Appellee’s intestate, in company with Peter Miller, late Sunday afternoon, June 10, 1923, discovered that the wire in question had broken and fallen to the ground. As they approached it, they saw some children near by, and appellee’s intestate remarked that it was a house wire, and that he would remove it before some one was injured by it. The undisputed evidence reveals that house wires in -the system carry only 210 volts of electricity, and will shock but not kill one if touched where insulated. The wire in question was insulated. Instead of being a house wire, carrying 210 volts of electricity, the wire in question was a primary wire, carrying 2,300 volts of electricity. Appellee’s intestate reached up high and took hold of the wire where it was insulated, but, on account of the strong current, his muscles, convulsed, thereby preventing him from releasing the wire. Before his companion could knock the wire out of his hands with a stick he was dead, and, when released from the wire, fell to the ground. It cannot be said that, under the undisputed evidence, appellee’s intestate voluntarily put himself in contact with the live wire, knowing it to be charged with a deadly current, for there was some evidence tending to show that he thought, and had reason to believe, that it was a house wire, carrying only a small voltage of electricity. In view of the disputed evidence in this regard, it was proper to submit the issue of contributory negligence to the jury.

No error appearing, the judgment is affirmed.


text:
    Rees & Company v. Road Improvement District No. 1.
    Opinion delivered January 19, 1925.
    1. Highways — liability of road district. — A stipulation in a settlement between a road district and the contractors that, if a subcontractor recovered against the contractors, then the contractors have not' “released their right to sue the road district” for such amount as they might be required to pay such subcontractor was not equivalent to an agreement by the district to pay the amount which the subcontractor might recover against the contractor.
    2. Jury — disqualifying interest. — Owners of land and tax payers within a road district are not disqualified from serving as jurors in an action by a contractor against the district.
    3. Jury — disqualification.—One associated in business with the attorney for a road district and with one of the commissioners of the district is not thereby disqualified to serve as a juror in an action against the district.
    4. Evidence — opinion evidence. — In an action by a contractor against a road district, where the subcontractor had filed a statement showing that he had cleared a certain acreage, which was disputed by the testimony of the defendant, it was not error to exclude testimony that according to such statement plaintiff’s subconractor had cleared the stated acreage, the computation of the acreage not requiring expert knowledge.
    5. Trial — instruction disregarding provision of contract.— An instruction, in an action by a contractor against a road district, which made defendants’ engineer’s statement conclusive, regardless of how the statement was made, held erroneous, as disregarding the provision of the contract that measurements should be according to United States standards.
    6. Highways — authority of engineers to change construction of contract. — Where a road district’s engineers had adopted one construction of a clearing and grubbing contract as to the method of computing this acreage, they could not, after plaintiff had dealt with his subcontractor on such basis, adopt a changed construction to plaintiff’s prejudice.
    Appeal from Clark Circuit Court; J. H. MoGollwm, Judge;
    reversed.

      Arnold & Arnold, for appellants.
    The court erred in allowing certain tax payers and land owners in the district to serve as jurors. 119 Ind. 368; 21 N. E. 977; 5 L. Rl. A. 253; 81 Kan. 616; 166 Pac. 1034; 28 L. R. A. (N. S.) 156; 115 La. 575; 40 So. 37; 57 Ore. 236; 119 Pac. 130; 5 L. R. A. 253; 90 Ind. 119; 20 Kan. 156; 34 Cyc. 271; 17 Am. & Eñg. Enc. Law 1133; 147 So. 565; 1 L. R. A. 620; 9 Am. St. Rep. 750; 18 N. E. 587. • A person who has any interest in a case is disqualified to serve as a juror. 23 Ark. 50; 93 Ark. 301. 23 Ark. 0; 93 Ark. 301. The engineers of defendant having interpreted the contract and Rees & Co. having acted under that interpretation in carrying out the contract, the defendant is now estopped from denying liability. 230 S. W. 656; 133 Ark. 302; 95 Ark. 449; 114 Ark. 415; 293 Fed. 155; 9 Wall. 50; 19 L. ed. 594; 107 U. S. 402; 185 U. S. 236; 22 Sup. Ct. 633; 46 L. ed. 890; 114 Fed. 474 ; 52 C. C. A. 276; 193 N. T. 543; 86 N E. 565.

      McMillan & McMMoa%, for appelle.
    There was no error on the part of the court in allowing certain named tax payers and landowners to qualify and serve as jurors. 30 Ark. 328; 155 Ark. 130; 150 Ark. 155; 154 Ark. 119; 153 Ark. 300; 151 Ark. 601; 32 Ark. 766; 121 Ark. 210; 57 Ore. 236; Ann. Cas. 1913 A. p. 119. The interest of a citizen and tax payer of a municipal corporation is not sufficient to disqualify him in a civil action to which the city is a party. 104 Am. St. Rep. 600; 121 Ann. 1913A; 14 Bush 87. The rights of the parties were fixed by the contract and not by the decision of the engineer. 100 Ark. 166; 146 Ark. 166.
   Humphreys, J.

This suit was brought by appellants against appellee in the circuit court of Clark County to recover an alleged balance of $6,300 due them under contract for clearing and grubbing about 121 acres of the right-of-way of three roads in said county, between July 1 and December 1, 1919.

Many pleadings were filed by the respective parties, introducing a number of issues, but the real issue joined and upon which the case turned in the trial court was the amount of clearing and grubbing done, according to the measurement of the area under the proper interpretation of the contract relative thereto and as applied to the facts in the case, and whether, under a proper interpretation and application thereof, appellant had been fully paid for the work done.

The cause was submitted upon the pleadings, testimony and instructions of the court, which resulted in a verdict and judgment dismissing appellant’s complaint from which is this appeal.

There was no dispute about the price per acre which appellant was to receive for the work, the only dispute being the manner in which the amount of the acreage should be determined. Appellant was to receive $150 an acre for the work under the contract, and sublet it to J. W. Overton for $100 per acre. The engineers of the appellee estimated that only 54 acres had been cleared and grubbed, and appellees refused to pay for any acreage in excess of that estimate. A suit was brought by Overton against appellants, in which he recovered $4,200 additional upon the theory that his contract with appellants allowed a recovery for the entire acreage contained in a station if he did any clearing or grubbing in said station. The highways of the various roads embraced in the contract had been divided into stations and numbered for purposes of convenience in identifying any particular .part of the road. Overton claimed a greater estimate in acreage than the jury allowed, in arriving at their verdict. Appellants defended that suit upon the theory that the contract they made with Over-ton was the same, in substance, as the contract they made with appellee, and that Overton should only recover for such acreage as they were entitled to receive pay for from appfellee. During' the pendency of this suit a settlement was reached between appellants and appellee as to the amount due them for the construction of the road, excepting from the contract appellants’ claim for additional acreage due them on account of the Overton claim and suit. The settlement contract was reduced to writing, and contained the following exception relating to the Overton suit: “If said contractor (Overton) finally collects judgment from C. A. Rees & Company, then the said C. A. Rees & Company have not, by this agreement and settlement with the said road district, released their right to sue the.road district to recover such amount as-they shall have been compelled to pay said Overton.”

The settlement aforesaid was introduced in the case, appellant contending that, under it, appellee agreed to pay appellants any amount that Overton might recover against them, and appellee contending that it preserved the right of appellants to test out their claim of extra acreage in the courts if Overton recovered a judgment against them. We think the latter construction of the settlement contract -correct, and that the issue should not have been submitted to the jury as was done by the court. The submission of the issue, however, was not prejudicial to appellant, but was favorable to him.

The reversal of the judgment is also sought upon the ground that a number of the jurors owned property and were taxpayers in appellee Improvement District No. 1 -of Clark County, Arkansas, and that -Graham Brown, one of the jurors, was also in business with one of the attorneys for appellee, and with Mr. Clark, one of the commissioners of said district. The jurors were examined very carefully upon their voir dire, and stated that they would not be influenced in returning their ver-, diet -on account of being owners of land and taxpayers in said district.- The amount of any judgment which might have been rendered when apportioned amongst the taxpayers would have been almost infinitesimal. Their interest was so slight that it is easy to see how they might answer, under oath, that they would not permit their interest to influence them in arriving at a verdict. This court ruled in the case of Osborne v. Board of Improvement of Paving District No. 5 of Fort Smith, 94 Ark. 563, that the “interest that will disqualify a judge must be direct and immediate, and not contingent and remote,” citing in support of the ruling Mr. Works in his “Treatise on Courts,” p. 396, and, in making the ruling, said: “It does not appear that the chancellor had any interest in the real estate of the litigation other then the general interest which any other citizen and property owner in the district had, * * * which is, at most, only a remote interest and not a direct one.”

Neither do we think that, because Graham Brown was associated with one of appellee’s attorneys and one of the commissioners in business, he was necessarily disqualified as a juror. He stated that his association with these gentlemen in business would not influence his verdict.

The court did not abuse his discretion in permitting the jurors to serve and in refusing to sustain the challenges to them.

Appellant also seeks a reversal of the judgment because the court refused to permit H. H. Catchings to testify, in rebuttal, that according to the evidence of Overton and the statement filed with his testimony, he had cleared and grubbed 107 acres. Overton, one of the witnesses in the case, attached a statement to his evidence showing, according to his figures, that he had cleared and grubbed 122 acres, but the accuracy of this statement had been questioned and the acreage very much reduced by two witnesses introduced by appellee. The testimony of H. H. Catchings was offered to counteract the effort of the testimony of the two witnesses last referred to. If the evidence of Overton and the statement he attached involved calculations which any one could make, both the evidence and statement were before the jury, and the court properly excluded the testimony of H. H. Catchings in verification thereof. It was not shown that, in order to reach a correct result in the calculation of the number of acres which Overton had cleared and grubbed, expert knowledge was required.

Lastly, a reversal of the judgment is sought upon the ground that the court, in effect, peremptorily instructed a verdict, and, in doing so, excluded the theory of appellants that, in the beginning, the engineers of appellee interpreted the contract as allowing pay for the entire area in a section if any clearing’ was done therein upon which they acted to their damage. There was some testimony introduced in the case tending to show that the engineers for appellee so construed the contract, and that appellants governed themselves in subletting the contract by such interpretation, and were compelled to pay Overton upon that basis.

Section 53 of the contract provided that the engineers should have “full supervision, * * * and his decisions # # * as to the meaning of all drawings and specifications should be final and conclusive. He shall determine the amount and quantity of the work of the several kinds performed.” Belying upon this provision of the contract, the court abandoned his construction of § 83 (c), 53, 62, 65 and 68, when read together, as meaning that, if any clearing or grubbing was done in a station, the contractor should receive pay for the entire acreage within the limits of the station, and instructed the jury that the estimate of the engineers -as to the amount of the clearing and grubbing was final and binding upon appellants, unless the engineers made a gross mistake in measuring the clearing and grubbing. This instruction gave a binding effect to the final estimate of the engineers, irrespective of how they arrived at their measurements and irrespective of whether they adopted a different method at the outset and during the progress of the work from that adopted on final -settlement. The contract contained the clause “that the quantity shall be measured according to the United States standard measurements. ’This clause was binding upon the engineers, and, unless they followed the correct rule, their estimates would not be binding upon the parties.

Appellants had witnesses present to show what the United States standard measurements were, but, until near the close of the trial, the court held to -the view that the contract, as a whole, meant that, when clearing or grubbing was done in any station, the contractor was entitled to pay for the entire acreage in said station. After the court placed this construction upon the contract, appellants excused their witnesses, and, when the court abandoned this view and permitted appellee to prove by witnesses what the United States standard measurements meant, appellants were not prepared to meet the proof. This greatly prejudiced their cause, as they claim the rule was not correctly defined by appellee’s witnesses. The instruction given therefore ignored this provision of the contract, and was prejudicial. It was also prejudicial because it permitted the engineers to adopt one method of arriving at the measurements in the beginning .and during the progress of the work and later change it, even if the contractor had acted upon the first method adopted and sublet the contract upon that basis. There was testimony introduced tending to show that, both at the outset and during the progress of the work, the method adopted by the engineers in arriving at the acreage in this and many other districts was to calculate the entire area in a station where any clearing and grubbing was done. One witness testified that this method was adopted to equalize the light and heavy work, and thereby accomplish an equitable result.

The appellants requested instruction No. 5, which was refused, over their objection and exception. It correctly declared the law applicable to the facts upon that phase of the case, if true. 'The instruction is as follows;

“You are instructed that, if you find that the engineers interpreted the 'contract with reference to measurement of clearing and grubbing, at the outset, to be that a full station is allowed where any clearing and grubbing is done between 'stations, and the defendants adopted same, and the plaintiffs acted on the said interpretation to their injury, the defendant is estopped, and you will find for the plaintiff.” The court committed reversible error in refusing to give this instruction.

On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    Missouri Pacific Railroad Company v. Bland.
    Opinion delivered January 26, 1925.
    Carriers — delivery by mistake — liability.—Where defendant ordered an engine from W., and paid W. therefor, without knowing that W. had turned the order over to another company which shipped the engine to its, own order and sent the bill of lading to a bank with draft attached, and plaintiff carrier delivered the engine to defendant on payment of the freight, held that defendant was not liable to plaintiff as for conversion, but the loss would fall on plaintiff.
    Appeal from Lawrence Circuit Court, Eastern District; Dene H. Colemm, Judge;
    affirmed.

      Thomas B. Pryor and Ponder <& Gibson, for appellant.
    Appellant was liable to the shipper for having delivered the shipment without the surrender of the bill of lading. 10 C. J. 259; 160 S. W. 403; 89 Ark. 342; 77 Ark. 482. Appellant paid the shipper and took an assignment of the cause of action, and has the right to maintain the action. A carrier in such a case may recover the amount so paid from the person receiving the goods, where the delivery was made by mistake. 10 C. J. p. 268; 34 So. 357; 51 N. H. 490; '25 Barb. (N. Y.) 597; 128 S. W. 585; 116 Ark. 198. 72 Ark. 471; 77 Ark. 482. Where goods are forwarded C. O. D. and are obtained from the carrier without payment by the consignee, he' acquires no title, and the carrier may recover them in an action of replevin or sue for the amount due. 79 Fed. 92.

      W. P. Smith, L. L. Gibson and A. S. Irby, for appellee.
    The cases cited by appellant in 77 Ark. 482, 89 Ark. 342, 116 Ark. 198 and 72 Ark. 471 are distinguished on the facts from the present case. Where a party in good faith accepts the property, pays the freight and the carrier does not offer to pay back the freight, and is negligent in the wrongful delivery, it would not be a wrongful conversion, on the theory that where somebody must lose, it must be the party that is at fault, and the doctrine of subrogation to the rights of the consignor would have no application here. 110 N. Y. S. 379, 59 Misc. 167; 10 C. J. 269.
   Smith, J.

This cause was tried in the court below on the following agreed statement of facts :

“It is hereby agreed that L. A. Bland, the above-named defendant, purchased from the Williams Mill Manufacturing Company of Texarkana, Arkansas, one 27 H. P. Kruger Atlas engine with necessary equipment, on Feb. 6, 1920, and that said engine was to be shipped to L. A. Bland at Hoxie, Arkansas; and at that time the said Bland paid on the purchase price of said engine $500, and executed his notes for the balance purchase price, the vendor retaining title to said engine until the purchase price was fully paid; and later, and prior to the time said engine was shipped, the said Bland paid $370 more on the purchase price of said engine.
“That, without any knowledge on the part of the said Bland, the Williams Mill Manufacturing Company placed its said order received by it from the said Bland with the San Antonio Machine & Supply Company, of San Antonio, Texas, for shipment and delivery to L. A. Bland at Hoxie, Arkansas. That on May 4, 1920, the San Antonio Machine & ’Supply Company forwarded to their order, notify L. A. Bland, Hoxie, Arkansas, the above make gasoline engine, which was covered by Gr. H. & S. A. waybill No. 132, dated May 15, 1920. Said shipment was covered by Hoxie, Ark., freight bill F-9, the said shipment of machinery being what is known as shipper’s order, having been shipped by the San Antonio Machine & Supply Company to itself at Hoxie, Arkansas, and bill of lading and draft sent to the State National Bank of Texarkana, Arkansas, to be paid by the Williams Mill Manufacturing Company.
“That said shipment was, in June, 1920, received at Hoxie, Ark., and plaintiff’s agent notified the said Bland of its arrival, the notice stating only that there was due on said shipment the sum of $135.51 freight charges. That, upon receipt of said notice, the said Bland called at plaintiff’s office in Hoxie, Ark., paid the freight charges of $135.51, and plaintiff’s agent delivered said engine to him.
“That the said Bland had-no knowledge or information that said engine was the property of or claimed by the San Antonio Machine & Supply Company, or that there was charges against it of $1,073.25, as shown by the bill of lading and draft which was sent to Texarkana, Ark., or that said shipment was sent shipper’s order, until long after the delivery of said shipment to him, and that he did not pay the draft or surrender the draft and bill of lading at the time the engine and machinery was delivered to him.
“That the above-named plaintiffs have never been paid the amount of $1,073.25 due on said shipment by Bland or any one else, and, to avoid litigation, these plaintiffs paid the San Antonio Machine & Supply Company said sum, as they were demanding of plaintiffs the return of said shipment or the value thereof. And that said plaintiff received from the San Antonio Machine & Supply Company an assignment of all its rights in and to said claim and shipment, and any rights it might have in any cause of action against the defendant Bland.
“That the said Bland paid $870 on the purchase price of said engine to the Williams Mill Manufacturing Company, the concern from whom he bought same, before lie had any notice from, plaintiffs or any one else claimed or had an interest in said shipment; that the outstanding notes for the balance purchase price on said engine executed to the Williams Mill Manufacturing Company by the said Bland are now in the hand's of the State National Bank of Texarkana, Arkansas, who claim to be innocent purchasers of same for value.
“That the Williams Mill Manufacturing Company, about the time of the shipment above referred to, or shortly thereafter, became bankrupt, and all of its assets were taken charge of by the bankrupt court at Texarkana, Arkansas, and its notes, including the notes of the said Bland, were sold.
“That the plaintiffs have never offered or tendered to the defendant Bland the amount, of freight charges paid by him on said shipment.
“It is further stipulated and agreed that L. A. Bland has been in the possession of said engine ever since its delivery to him, as above stated, and is now in the possession of same.”

The plaintiff railroad company asked the court to make certain declarations of law, which, if made, would have entitled it to a judgment for the sum it had paid the San Antonio Machine & Supply Company, but the court refused these requests, and made the following finding of fact and declaration of law:

“And the court, after hearing argument of counsel, is of the opinion that the declaration of law requested by the plaintiff should not be declared as the law of this case, and finds, upon the theory and argument of the defendant, that the machinery in question was paid for by the defendant, L. A. Bland, to the Williams Mill Manufacturing Company, and that there was no privity of contract or obligation existing between the defendant and San Antonio Machine & Supply Company, and that the plaintiff delivered said machinery to the defendant voluntarily and accepted the freight therefor due it, and has not at any time tendered said freight back to the defendant, and that the plaintiff knew, or should have known, bill of lading shipper’s order was attached, and should have notified said defendant of such facts, in order that he might protect himself against the payment for said machinery twice, which would be the consequence of finding for the plaintiff in this cause.
“And that there was no tortious conversion of said property by the defendant for his own use, and that said machinery was delivered to the party to whom it was shipped, and that the notice given to the defendant by the plaintiff was merely to pay the freight, which he did, took the machinery in good faith, and not by any wrong, fraud or deception.”

Upon this finding the court rendered judgment in favor of the defendant, and the railroad company has prosecuted this appeal to reverse that judgment.

Appellant company cites cases which announce the law to be that, where a shipment is consigned shipper’s order, the title remains in the shipper until he orders a delivery of the goods, and that delivery can be made only on production and surrender of the bill of lading covering the shipment; and that, if . delivery is made without requiring the surrender of the bill of lading, the carrier is liable to the consignor, or to the person entitled to 'receive the shipment, for the value thereof, and that this is especially true where the shipper’s order bill of lading has attached to it a draft on the buyer, or where the bill of lading or shipping receipt contains the direction that a third person shall be notified of the arrival of the goods, the carrier is not authorized to treat the person to be notified as the consignee, and, if it delivers the goods to him without production and surrender of the bill of lading, it will be liable to the true owner of the goods for any loss resulting from such delivery. Sections 371 and 372, chapter on Carriers in 10 C. J., p. 259, and cases cited in the notes to the text.

Other cases are cited by the appellant to the effect that when, through mistake, fraud, or otherwise, the carrier has been induced to deliver goods to a person not entitled thereto, and he refuses to return them, the carrier may maintain an action against him for the recovery of the goods or for their value. If the carrier, after delivery to the wrong person, on demand, pays the consignee their full value, it may recover from the person the money so paid as paid to his use, where the delivery is made by mistake. Section 383, chapter on Carriers in 10 C. J., page 268, and cases there cited.

The principles of law stated have received recognition-by this court in the cases of Fordyce v. Dempsey, 72 Ark. 471; Arkansas Southern Ry. Co. v. German National Bank, 77 Ark. 482; and Tedford v. C. R. I. & Pac. ry. Co., 116 Ark. 198. But we have here a case where the delivery was not a mistake in the ordinary sense of that term, nor was the delivery induced by any fraud or other wrongful act of appellee. From his standpoint appellee was entitled to have the delivery made to him, as was done, upon payment of the freight. He had paid for the articles shipped, principally in cash, and the balance in negotiable notes, which are outstanding against him, if they have not already been paid. It affirmatively appears that appellee would not have recived the shipment if he had been advised that delivery would be made to him on condition only that he pay for the goods a second time. The carrier, of course, had the right to withhold delivery until the draft drawn by the consignor had been paid, but it did not do so. It made the mistake of making delivery without exacting payment, and some one must suffer as a consequence of this error. Who should bear this loss?

The instant case is not unlike the case of Long Island Rd. Co. v. Structural Concrete Co., 110 N. Y. Supp. 379, decided by the Supreme Court, Appellate term, where the court said: “On behalf of the plaintiff it is urged that the facts make out a case of conversion, on the principle that, where a common carrier delivers goods by mistake, the person to whom they are delivered is liable in conversion, citing Hutchinson on Carriers )3rd ed.), § 863. It is unnecessary to determine what would be the situation if the plaintiff had delivered the goods by mistake in the usual acceptance of that term, and the defendant had received them through mistake or in bad faith. But in this case it would appear that the carload was delivered intentionally by the plaintiff’s agents, and was received in good faith by the defendant, and that the goods were paid for by the defendant to the person from whom the defendant purchased the same. Under .such circumstances I think the loss should remain where it is, and that the trial justice was right in dismissing the complaint.”

Under the facts recited herein, the appellant railroad company would have the right to recover the sum which it was required to pay the consignor, but for the fact that it was its own mistake which caused the trouble. One of two innocent parties must suffer, and, under these circumstances, the loss was properly placed by the trial court on the one whose mistake was responsible for the loss, and that judgment is therefore affirmed.


author: Smith, J.,

text:
    Goodwin v. Tyson.
    Opinion delivered January 26, 1925.
    1. Contracts — mutuality.—A deed given on condition that the ■grantee support the grantor and family was not void for want of mutuality because the agreement to support was not signed by the grantee, since acceptance of the deed was an assent to that condition.
    2. Deeds — condition subsequent. — A condition in a deed that the grantee support the grantor and his family is not a condition precedent, but title passes upon execution and delivery of the deed, subject to be defeated upon failure of the grantee to perform the condition imposed.
    3. Deeds — condition subsequent. — Evidence held to show that grantee had complied with the condition that he support the grantee and his widow and minor daughters.

      Appeal from Ouachita Chancery Court, Second Division; George M. LeGroy, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    This suit was brought by the widow and three children of Hardy Goodwin on December 21, 1922, to cancel a deed executed by Hardy Goodwin on January .25,1881, to his only son, Julius C. Goodwin. Better A Goodwin, the wife of Hardy Goodwin joined her husband in the execution of this deed. At that time Hardy Goodwin was in poor health, and his son Julius was in charge of the land conveyed him, which was the homestead of Hardy Goodwin, who lived only a little more than two months after the execution of the deed, and died April 11, 1881.
    The deed is a warranty deed in form, and, after the usual covenant of warranty, the following recitals appear: ' “It is the true intent and meaning of these presents that, if the said Julius C. Goodwin shall covenant, promise, grant and agree to and with the said Hardy C. Goodwin in manner and form following, that is to say that he, the said Julius C. Good-win, shall and will find and provide support, and maintain the said Hardy Goodwin and Better A. Goodwin during the term of their natural lives, also Laura A. Goodwin, Julia C. Goodwin and Lillie T. Goodwin, during the term of their minority, or until they are otherwise provided for, and provided that, if the said Julius C. Goodwin, his heirs, executors and administrators, shall neglect or refuse to find, provide, support and maintain the said Hardy Goodwin, Better A. Goodwin, Laura A. Goodwin, Julia C. Goodwin and Lilly T. Goodwin, that then, in all, any or either of the cases aforesaid, it shall and may be lawful to and for the said Hardy Goodwin all and singular the premises hereby granted to take, repossess and enjoy, as in his former estate.”
    In addition to the daughters named in the deed, Hardy Goodwin had another daughter, but she was married at the time, and was not living with her father.

      The three daughters mentioned in the deed were all minors at that time, Lillie, the youngest, being then only about seven years old.
    The undisputed testimony shows that, after the death of Hardy Goodwin, his son Julius took complete charge of the property, and thereafter all taxes were paid in his own name. Julius was unmarried at the time of his father’s death, but he married on December 18,1881, and brought his wife to the family home to live. Some time later Julius built a new home, which the testimony shows, was largely paid for with money which his wife had received from the estate of her father. Mrs. Hardy Goodwin, the grantor’s widow, and her three daughters, all lived in the family home, until December, 1891, when Laura married and moved away. Julia was then next to marry, and she, too, moved away after her marriag’e. Thereafter Mrs. Hardy Goodwin- and the youngest daughter, Lillie, lived with Julius until March, 1892, when Lillie married and moved away, and her mother went with her. In August of that year Julius died.
    After the death of Julius his widow had homestead and dower assigned her in these lands, and later Mrs. Julius Goodwin and her children moved away, but they have since continuously claimed to be the owner of the land, and have kept up the improvements and have paid the taxes and collected the rents, which, the testimony shows, have been but little more than enough to pay the taxes since 1900.
    The lands were shown to have been worth about $2,000 at the time they were conveyed to Julius Goodwin, but they sufficed to make a living for him and his growing family and his mother and three sisters while they lived with him. The undisputed testimony shows that the three daughters contributed to their own support by their labor, and that they assisted in all the work that was done about the farm, and that they worked in the field and assisted in making the crops. But the testimony also shows that this was customary for persons in similar circumstances, and that the girls and their mother were as well provided for as were their neighbors of similar means.
    Mrs.;Hardy Goodwin joined in this suit, with two of her -daughters and the heirs of a third daughter, to cancel the -deed to Julius Goodwin, but Mrs. Hardy Goodwin died soon after the institution of the suit, and it was revived in the names of her heirs, the other plaintiffs. The court granted the relief prayed, and canceled the deed, and -directed that partition of the land be made among the heirs of Hardy Goodwin, and this appeal is from that decree. Other facts will be stated in the opinion.

      Kirby & Kays, for appellant.
    There was mutuality of -contract, the grantor having accepted the grant, and he was therefore bound by it. An agreement to support one during his lifetime is a sufficient consideration. 110 Ark. 425; 86 Ark. 169; 97 Ark. 13; Ann. Cas. 1915 C. 3i85; 86 Ark. 252, 8 R. C. L. 927; note 3 L. R. A. 836. Title in fee was conveyed, providing for a forfeiture of the estate granted upon the failure to comply with the terms named, and constituted a condition subsequent. 50 Ark. 141; 28 Ark. 48; 98 Ark. 328; 133 Ark. 406; 143 Ark. 208; 91 Ark. 407; 8 R. C. L. 1100,1104. Sec. 163. A breach of the conditions does not defeat the estate, which can only be done by some sufficient act of the grantor. 50 Ark. 141; 91 Ark. 407; 13 Cyc. 706, 711; 4 Kent’s Comm. 127; Tiedeman on Real Property 277; 97 H. S. 693, '24 L. Ed. 1101. A court of equity will never lend its aid to divest an estate for breach of a condition subsequent. 4 Kent’s Comm. 130; 13 Cyc. 709. The grantor’s remedy upon breach of the contract is to sue at law for the amount of the consideration as it would become due, or else to treat the contract as void and sue in equity to -cancel and set it aside. 103 Ark. 464; 67 Ark. 526; 86 Ark. 251. See also 134 Ark. 80. The right of entry is not an estate, not even a possibility of reverter; it is simply a chose in -action. Tiedeman on Real Propesty, § 277. The condition was fully performed. 67 Ark. 526. The action of the widow and heirs in not calling for an accounting of rents and profits or requesting any support must be treated as a waiver. 98 Ark. 328; 143 Ark. 208; 13 Cyc. 708f; 77 Ark. 168; Tiedeman on Real Property 277. Any rights appellees would have had are barred by the statute of limitations C. & M. Dig. § 6942. Coverture does not exempt from the statute of limitations. 145 Ark. 536: Hoggard v. Mitchell, 164 Ark. 296.

      Thos. W. Hardy, for appellee.
    The grantee was obligated to support the survivors after the death of the grantor. 138 Ga. 407; 18 C. J. 371. Such support must be furnished at any place selected if it can be done without needless expense. 12 Allen (Mass.) 586; 18 C. J. 371. Reasonably good board with kindly treatment is contemplated, else it constitutes a breach of covenant. 51 Tex. Cir. App. 346. An estate on condition may be enlarged or destroyed. 8 R. C. L. p. 1097. See also 8 R. C. L. pp. 1098 and 1099 The contract has not been complied with and is void. 8 R. C. L. pp. 933, 934; 3 L. R. A. 836. It was necessary for the grantee t.o express his assent to the contract by signing same. 6 R. C. L. p. 649; Parsons on Contracts, Vol. 2 p. 676; 43 Ark. 184; 3 Ark. 581. There is no mutuality in the contract. 7 Am. & Eng. Ency. of Law (2nd Ed.) p. 114; 96 Ark. 184; 90 Ark. 508; 86 Ark. 170; 86 Ark. 252; 110 Ark. 425. The grantor and heirs can maintain the suit. 103 Ark. 467; 13 Cyc. 692; 50 Irk. 141; 50 Col. 108; 8 Pick 284. There was a breach of condition for support in that their condition was rendered intolerable. 13 Cyc. 698; 56 Wis. 514; 59 111. 46; 69 Me. 293; 1 Texas '245; 96 Wash. 324; 134 Ark. 88. A court of equity has power to rescind the contract and reinvest the title. 67 Ark. 526; 103 Ark. 464; 86 Ark. 252; 134 Ark. 91; 247 111. 510. Claim of adverse possession cannot be maintained. 94 Ark. 51; 1 A. L. R. 1349; 87 S. W. 832; 44 Tex. 140; 1 Cyc. 1026; 76 Ark. 405; 112 Ala. 480; 87 Ark. 374; 3 U. S. McLean 457; |83 Ark. 374; 94 Ark. 51. Upon the breach of the contract, appellees became tenants in common, and the statute of limitations would not run against them. See C. & M. Dig. Sec. 30 p. 484 ; 55 Ark. 109. Freeman, Cotenancy and Partiton § 373; Angelí on Lmitations, § 420. Possession of life tenant is not adverse to rights of a remainderman during the existence of a life estate. 35 Ark. 84; 58 Ark. 510. There was no waiver of any rights by Better Goodwin. 18 C. J. 378; 171 Mass. 575; 168 Okla. 1001; 149 Wis. 222. She had the right to expect performance as long as she lived. 18 C. J. 368; 6 B. C. L. 894; 1 Gray (Mass.) 365.
   Smith, J.,

(after stating the facts). It is first insisted that the deed was void because the agreement to support, constituting the consideration therefor, was not signed by Julius Goodwin. We think, however, that the deed was not void for the want of mutuality or because Julius Goodwin had not signed it, as appellees insist. The acceptance of the deed was itself an assent to its conditions. Fine v. Lasater, 110 Ark. 425; Wood v. Park, 97 Ark. 13; Whittaker v. Trammell, 86 Ark. 251; Boyd v. Lloyd, 86 Ark. 169.

It is also insisted by appellees- that the provision in regard to support was a condition precedent, and that no title passed until the condition had been fully performed. But we do not agree with this contention. The title to the land passed upon the execution and delivery of the deed, subject to be defeated, however, by a failure to perform the condition imposed — that of support. Skipwith v. Martin, 50 Ark. 141; Cooper v. Green, 28 Ark. 48; Kampman v. Kampman, 98 Ark. 328; Swain v. Beakley, 133 Ark. 406; Terry v. Taylor, 143 Ark. 208; Moore v. Sharpe, 91 Ark. 407.

On behalf of appellants it is insisted that the condition imposed was performed, and further, that, if not, the forfeiture was waived; and it is also insisted that appellees were barred both by laches and limitations from maintaining this suit. We do not consider the questions of waiver or of laches or of limitations, as, in our opinion, the testimony shows that the condition, the nonperformance of which would have defeated the conveyance, was in fact performed.

In Boyd v. Lloyd, supra, Justice Battle said that an agreement to support the grantor during Ms lifetime is everywhere regarded as a sufficient consideration for a deed; and, in Edwards v. Locke, 134 Ark. 80, the court reviewed the authorities dealing with the right of the grantor to set aside such a conveyance, and the right of the grantor in such a deed to sue for rescission, upon condition broken, was there again recognized, as it had been in the earlier cases, and the holding of our earlier cases on the subject was summarized as follows: “The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract, and therefore vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and, where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, maj be resorted to, regardless of any remedy that the grantor may have had also at law. See Salyers v. Smith, 67 Ark. 526; 4 R. C. L., p. 509, § 22; Russell v. Robins, 247 Ill. 510; Stebbins v. Petty, 209 Ill. 291; Spangler v. Warborough, 23 Okla. 806; see also Bruer v. Bruer, 109 Minn. 260; Abbott v. Sanders, 80 Vt. 179; Glocke v. Glocke, 113 Wis. 303. See also case note 43, L. R. A. (N. S.), 918-925.”

There are certain questions raised in the briefs which, as we have said, we find it unnecessary to consider, as we think the conclusion which we have reached from a consideration of the testimony in the case, that the condition was not broken, is decisive of the case, and we dispose of the questions raised by a decision of that question of fact.

The testimony on behalf of appellees, in addition to that already recited, was that Julius was a good-man, but taciturn, and that his wife ran the establishment, her husband included; that she was irritable and exacting, and, on one occasion, threw a stick at one of the girls, and, on another occasion, threw a stick at Mrs. Hardy Goodwin.

A fair interpretation of the deed in question is that the beneficiaries named in the deed were not only to be furnished food and shelter and clothing and other physical necessities, but these were not to be provided under condition which made it impossible for them to use and enjoy those necessities in ease and peace, as was said in Edwards v. Locke, supra, and it would not have been a compliance with the condition of the deed to have furnished these necessities but to have done so under circumstances which rendered the condition of the beneficiaries intolerable.

On behalf of appellants it is denied that Mrs. Julius Goodwin threw a stick at either Mrs. Hardy Goodwin or at one of the daughters, but, even so, this did not drive either of them from the home.

So far as the daughters are concerned, it is clearly established that they were furnished a home as contemplated by Hardy Goodwin upon the execution of the deed. They were furnished a home during infancy and until their marriage. Mrs. Hardy Goodwin was also furnished a home and support until the marriage of her youngest daughter, and, although she was invited to remain as a member of the Julius Goodwin family, she stated that she preferred to live with her baby child.

It does not appear that Mrs. Hardy Goodwin was ever afterwards asked to return and live at the old homestead, and it does appear that no contributions to her support were made by Julius Goodwin’s widow or his children. Neither does it appear that Mrs. Hardy Goodwin ever called upon the widow or children of Julius Goodwin for any contributions, as required by the deed. The testimony shows that Mrs. Hardy Goodwin enjoyed a pension which sufficed to supply her personal wants. She apparently preferred to live with her daughter, rather than her son, or the members of her son’s family after his death, and was never shown to have complained that the provision of the deed in regard to her support was not complied with. On the contrary, it affirmatively appears that no such requests were ever made.

A similar question was presented in the case of Salyers v. Smith, 67 Ark. 526. There a conveyance had been made to a daughter and her husband by the father, on condition that the grantor should be supported as long as he lived. There was a decree against the daughter and her husband, requiring them to make monthly payments, in default of which the land conveyed was ordered sold. This court, in reversing that decree, held that, until the appellants — the daughter and her husband — refused to render the support required by the deed, or had done some act tantamount to a refusal to do so, there was no cause of action.

So here we conclude that, after providing the daughters a home and support for the time and manner required by the deed, and after likewise providing for the grantor’s widow so long as she chose to receive the support provided by the deed, the conveyance is not to be defeated because contributions to Mrs. Hardy Goodwin were not continued when they were never requested or refused.

The decree of the court below, setting aside and canceling the deed, will therefore be reversed, and the cause will be remanded with directions to enter a decree dismissing the complaint as being without equity.