author: Smith, J. Hart, J.

text:
    Cain v. CarlLee.
    Opinion delivered February 23, 1925.
    1. Elections — payment op poll-tax. — Persons who paid their poll taxes, hut whose names were added to the tax lists by- the county collector, and not by the county clerk, as required by Crawford & Moses’ Dig., § 3738, had no right to- vote at a primary election.
    2. Elections — error in counting votes — prejudice.—Where, in an election contest, the court erred in counting improper votes, though it does not appear for whom they were cast, the error calls for a reversal; an affirmance being directed only where the judgment is correct under undisputed testimony, notwithstanding the error.
    3. Elections — difference in name of vote. — A difference in the names of a voter as signed upon a ballot from that contained in the printed list of votes, under Crawford & Moses’ Dig., § 3740, did not require that the vote be excluded; parol evidence being admissible in election contests to prove the identity.
    Appeal from Woodruff Circuit Court, Southern District; E'. D. Robertson, Judge;
    reversed.
    . Roy D. Campbell, for appellant.
    All ¡the votes oast by voters whose names were added to the fax books and whose poll taxes were paid after the fax books were certified to the collector for collection were illegal and void. C. & M. Digest, § 3738; 160 Ark. 275.

      Ross Mathis and J. F. Swnmers, for appellee.
    The court was correct in holding that where the name of a person does -not appear on the tax hooks and the namie is not certified by tbe clerk to the collector, yet if he pays a poll tax within the time prescribed by law, he is a legal voter. That is the law. C. & M. Digest, § 3738 is merely directory in this respect. 97 Ark. ‘221; 92 Ark. 67; 129 Ark. 185.
    Under the state of facts presented by this record, appellant presents nothing to consider. The burden is on him as the contestant to show that he received a majority of the legal votes cast. 32 Ark. 553; 148 Ark. 83.
   Smith, J.

E. M. CarlLee and W. R. Cain, together with J. L. 'Bronte, were rival candidates for the Democratic nomination for county judge of Woodruff County in the primary election held in that county on August 12, 1924, and, in due time thereafter, Cain filed his complaint against his two opponents, contesting the nomination of CarlLee, who had been certified by the Democratic County Committee as the nominee.

The complaint, which was in proper form, alleged1 that, on the face of the original returns, CarlLee received 925 votes, Cain 910, and Bronte 170. That a recount, which was demanded by Cain, was granted, and a subcommittee of three, consisting of two partisans of CarlLee and one o,f Cain, recounted the votes and, as a result of this recount, the vote of CarlLee was announced as 847, Cain 815, and no votes was announced as having been cast for Bronte. This recount resulted in 173 votes having been thrown out by the subcommittee as illegal, for one reason or another, but, as stated, this recount showed that CarlLee had received a plurality of the votes cast, and he was duly certified as the nominee, and thereafter this contest was instituted.

The complaint contained many 'allegations of illegality and fraud. It was alleged that many persons, whose names were stated, had voted for CarlLee whose names were not on the legal list of voters which the clerk of the county court is required to furnish, under § 3740, C. & M. Digest, and that the poll-tax receipts of 'such parties were not attached to the ballots, as required by § 3777, C. & M. Digest. That, after the clerk had delivered the personal taxbocks to the collector, the names of many persons were added to the taxbooks by the collector, and poll-tax receipts issued, and that this was done without such persons appearing before or being assessed 'by the county clerk, as required by § 3738, C. & M. Digest. The poll-tax receipts were issued to and votes cast by persons who were not otherwise entitled to vote. That persons had been permitted to vote in townships in which they did not reside. That votes had been received and counted as being cast by persons who did not, in fact, vote at all. That many persons had been permitted to vote on poll-tax receipts which had been paid for by ether persons without the voter having requested that this be done, and without any agreement on the voter’s part to pay for same. That ballots had been mutilated by the judges, and thrown out because of such mutilation. That, in counting the votes cast for Cain, many ballots were thrown out because of a difference in the initials or the spelling of a name. That in this number were included the wives of a number of electors who had paid the tax in their names and had given the names of their husbands, 'and vice versa; for instance, May Browning, the wife of Luke Browning, voted -.as May Browning, when she appeared on the list as Mrs. Luke Browning; but that the same rule was not applied in recounting the votes cast for CarlLee. That the ballots of certain electors whose names appeared on the published list of electors with the letter (O') opposite the name were thrown out on that account, although they were white men and were otherwise qualified to vote in the primary election. That a majority of the election officers were partisans of CarlLee, and, had the same rule been applied alike in passing upon the competency of the electors voting for both Cain and CarlLee, there would have been a difference in 'Cain’s favor in the count of 50 votes. The complaint is specific in its allegations, but we only summarized them.

The answer filed by CarlLee contained a denial of all these allegations, and alleged that a number of illegal votes had been cast for Cain. The answer, in effect, charged that fraud had been committed by. election officers of which Cain was the beneficiary. The answer further alleged that the votes of six electors cast for CarlLee under the absent voters’ law had been rejected. In reply to this last allegation, Cain admitted that these six votes had not been counted for CarlLee, but it was alleged that they should not have been so counted because of a failure on the part of the electors to properly comply with the absent voters’ law.

Upon these charges and countercharges a great many witnesses were examined, and we have before us a transcript of more than six hundred pages.

After hearing all the testimony, the court made the general finding that CarlLee had received a majority of all the legal votes cast at the election, and was entitled to be declared the nominee.

The judgment of the court did not indicate the court’s finding on any of the numerous questions of fact raised, and there was no finding as to the number of legal votes either candidate had received, so we do not know which, if any, of the contentions made by Cain were sustained by the court.

A motion for a new trial was filed by Cain, consisting of sixteen assignments of error,, in which error was assigned in the refusal of the court to sustain each of the allegations contained in the complaint.

The tenth ground for a motio'n for a new trial reads as follows: “That the court erred in holding that the following parties, whose names were added to the list of those who had paid their poll taxes after the taxbooks had been certified by the clerk to the collector for collection, were legal voters, and counted the same as a part of the vote having been received by the defendant, E. M. CarlLee, when said voters had not complied with the laws of the State of Arkansas in order to get their said .names added to the list of poll-tax voters, said parties being in the following townships and as follows, towit.” Then follows a list of the names of such electors, under the name of the township in which they had voted. And the tenth assignment of error concludes with the following statement: “The above list of names, being one hundred and four, substantially 'all of said parties having voted for the defendant, E. M. CarlLee, and neither of the s>aid parties having caused their names to be added to the list of parties paying their poll taxes as required by the laws of the State of Arkansas, and particularly § 3738 of Crawford & Moses’ Digest of the Statutes of Arkansas, it appearing from the ballots cast by said parties that approximately all of the number had cast their votes for the defendant, E. M. CarlLee.”

The court overruled the motion for a new trial, and, in doing so, made the following finding of fact and declaration of law:

“This case turns upon the tenth ground alleged in plaintiff’s motion for new trial, that ‘said voters had not complied with the laws of the State of Arkansas in order to get their names added to the list of poll-tax voters. ’
“It is conceded by counsel for contestant that they paid their poll tax within the time prescribed by law, § 3741, C. & M. Digest, the contention being made that the elector must first 'apply to the county clerk to have his name included in the list, under § 3738. In other words, he must be registered somewhere before he has the right to tender to the collector his poll tax.
“But art. 3, § 2, of our Constitution is to the effect ‘nor shall any law be enacted whereby the right to vote at any election shall be made to depend upon the previous registration of the elector’s name.’ This provision annulled all requirements for registration 'under the reconstruction acts of 1668.
“There is no form even of registration required under Amendment No. 6 (Poll Tax Amendment), the only requirement being that the elector shall have ‘paid his poll tax at the time of collecting taxes next preceding such election.’ And § 3741 defines the meaning of the phrase ‘time of collecting taxes.’ If the collector accepted his money and issued a receipt or other evidence of payment of poll tax, that is all the Constitution required.
“It appears here that the collector entered the names of these electors upon the tax hooks in: the same manner that the clerk would have done, and thereby charged himself with the taxes in the same manner that the clerk would have done had the electors applied to him in the first instance and before the hooks were delivered. And that the clerk approved the action of the collector by including these names in the list he furnished the election commissioners, under § 3740, C. & M. Digest.
“It is held in 160 Ark. 269 that the collector cannot issue poll-tax receipts after the first Monday in July, hut that holding was upon the facts in that case, and the question here was not before the court.”

The court was in error in the application made of the decision of this court in the case of Craig v. Sims, 160 Ark. 269. We there construed § 3777, C. & M. Digest, and, in doing so, we said: “The statute does not give'the county collector the power to assess a poll tax and deliver it to a person otherwise qualified to vote at an election. Hence he can have no such power. His power is only to collect a poll tax as provided.”

In that case the contention of the contestant, that the votes of such persons were illegal and should not be counted, was upheld, but no relief was given him on that holding because he had not shown that the votes of such persons were cast for his opponent. We there said: “Conceding that these poll-tax receipts were illegally issued by the collector and purchased by the contestee or other persons for his benefit, -still this falls short of establishing that the illegal votes were cast for the con-testee. The ballots must have been cast by the persons holding the poll-tax receipts, and, in the absence of that showing, we have no means of knowing how they voted. The contestee might have furnished the receipts and intended them to vote for him. The votes may have been cast for the contestant, or for some other person.”

In the instant case the showing- was made that the questioned votes were oast for CarlLee, and, upon the authority of Craig v. Sims, supra, those votes should have been thrown out.

Section 3738, C. & M. Digest, provides how omitted names may 'be added to the taxbooks. These names can be added only by the county clerk, and, in adding such names, the clerk is required to assess a, penalty of a dollar against each person so added, and, in addition, it is made the duty of the clerk i£to assess any property held by said applicant, and which,' for any reason, has been omitted from the tax books.” And this section also imposes on the clerk the duty of certifying this supplemental assessment.

The purposes of these provisions are obvious and are two-fold: (1) to protect the public revenues, and (2) to prevent fraud in elections.

At any rate, this statute was upheld in Craig v. Sims, supra, and we perceive no reason for changing the construction there given it, and, upon the authority of that case, we hold that the court was in error in counting such illegal votes.

It is insisted, however, that, even though the court was in error in the ruling made, that fact does not call for the reversal of the judgment of the court below. But we cannot agree with counsel in this contention.

It is true that this court reverses only for error, and we would not reverse the judgment here if we could say that the judgment of the court below was correct under the undisputed evidence, notwithstanding this erroneous ruling; but we do not so find. We cannot affirm the judgment, in view of this erroneous ruling of the court, unless we do find that the judgment was correct under the undisputed testimony, notwithstanding this error.

In the case of Arkadelphia Lumber Co. v. Whitted, 81 Ark. 247, a syllabus reads: “Errors of the court in giving or refusing instructions were not prejudicial if the undisputed evidence shows that the judgment of the court was right’upon the whole record.”

That ruling -was followed in the later cases of St. L. I. M. & S. Ry. Co. v. Randle, 85 Ark. 127; Thompson v. Southern Lbr. Co., 113 Ark. 380; Patterson v. Risher, 143 Ark. 376; New York Life Ins. Co. v. Adams, 151 Ark. 123; Davis v. Kelly, 152 Ark. 151; Gage v. Arkansas Central R. Co., 160 Ark. 402. In each of those cases the court refused to reverse the judgment of the court below, notwithstanding the erroneous declaration of law, but the reason assigned in each case was that the evidence was undisputed The effect of those cases is that a reversal must be ordered where an erroneous declaration of law is made, unless the evidence is undisputed and the judgment is correct under the undisputed evidence, otherwise this court cannot know whether the error was prejudicial or not, and must assume that it was.

Counsel for CarlLee insists that the undisputed evidence shows that as many such votes were added to the taxbooks in the townships which Cain carried as were added in the townships which CarlLee had carried. There appears to have been 160 such names added to the taxbooks in the Central District of the county, and that this district voted largely for Cain, but there was no attempt to ascertain how these persons had voted, and, as was said in the case of Craig v. Sims, from which we have already quoted, this falls far short of showing that they voted for the contestant,' whereas the showing was made by Cain that the voters which he challenged under this tenth assignment of error had, in fact, voted for CarlLee. Certainly, the court did not find that as many, or more, of such electors had voted for Cain, for the votes of these 160 electors were not inquired into. After examining the vote of one small township, counsel for CarlLee said: “Now, miay it please the court, after we introduce, specifically, this ballot, it may be understood by counsel that the certified record of votes, together with the poll-books in Freeman, Wiville, Bullville, Hunter, Pumpkin Bend, Patterson City,- Hilleman, Howell, Riverside, Revelle, with the understanding that they may be treated as in the record, we will 'dose.” -'There followed the statement that this was all the evidence in. the trial of the case.

It does not appear that the ballots cast in the townships named in which the 160 poll taxes were paid were canvassed, or any attempt made to ascertain how many of the 160 persons had voted, or for whom they had voted. We think it affirmatively appears that the court did not find that these 160- votes had been cast for Cain. The finding that they were cast for Cain could not have been made, for these ballots were not canvassed. We think there is at least such doubt about the facts that they cannot be treated as undisputed.

This appeal is from a trial at law, and the contestant was entitled to have the court pass on the questions of fact raised by the testimony, and there are many such questions in the case. We have no way of knowing how many, if any, of the contentions of Cain were sustained, but, as we understand the court’s finding, he had come to the. conclusion that the question raised in the tenth assignment of error was decisive of the contest. The court finds that “this case turns upon the tenth ground alleged in the plaintiff’s motion for new trial, that 'said voters had not complied with the . laws of the State of Arkansas in order to get their names added to the list of poll-tax voters.’ ”

In view of this finding of fact, we are unable to say that the court would have found for CarlLee, even though he had construed the case of Craig v. Sims, supra, as we do. Certainly, we do not think we should say the undisputed evidence shows this when this was only one Of the numerous grounds of contest which Cain had offered testimony to sustain.

Appellant earnestly insists that, where there was a difference in the name of a voter as signed on the ballot from that contained in the printed list of voters certified by the clerk under § 3740, C. & M. Digest, the votes should not be counted. The holding of this court in the case of Wilson v. Danley, 165 Ark. 565, is against that contention. There the supporting affidavit of an elector in an election contest was made by Emmet Austin, and it appeared that no poll-tax receipt had been issued in that name to the affiantj who testified as a witness before the court. He exhibited a receipt which had been issued to E. T. Austin, and testified that, while his name was E. Y. Austin, his custom was to sign his name as Emmet Austin. We field this testimony was competent and properly identified and qualified the affiant.

We therefore hold that parol testimony is competent to show the identity of an elector who voted under one name with that of a name appearing on the list of voters. Indeéd, it is provided by § 3742, C. & M. Digest, that, if the judges of election have any doubts as to the identity of any person being the person whose name appears upon the official list of those who have paid poll tax, they may take evidence by the oath of the person who presents himself claiming to be such person, or by other competent evidence, and the judges are empowered to administer oaths for that purpose.

For the error indicated the judgment of the court below will be reversed, and the cause will be remanded for a new trial.

Hart, J.

(dissenting.) It may be stated at the outset that the findings of fact by a circuit judge in the trial of the contested election are as conclusive as the verdict of a jury upon conflicting* evidence. Williams v. Buchanan, 86 Ark. 259.

In this case there was a general finding of facts that E. M. CarlLee received a majority of the votes cast at the primary election for county judge which was contested by W. R. Gain. In trying this issue no declaration of law was made or refused, and the court is therefore presumed to have acted upon correct views of legal principles applicable to the facts. In other words, the case stands as though a properly instructed jury had returned a verdict for CarlLee. Blass v. Lee, 55 Ark. 329, and Blass v. Anderson, 57 Ark. 483.

It is true that the court has held that findings of facts may be reduced to writing after the trial; but the court is not required to do so. In the case before us there was no request made by appellant to the court for a special finding of facts. The motion for a new trial filed by him, was an assignment of errors alleged to have been committed at the trial, and was not a request that the findings of the court be reduced to writing and filed. Buell v. Williams, 127 Ark. 58.

Of course, the objection that the court’s general findings of facts is not sustained by the evidence may be made by a motion for a new trial, no exceptions at the time the finding is made being necessary. In such a case, however, the only question on appeal is whether there was any evidence to support the finding of the court. Greenspan v. Miller, 111 Ark. 190.

The rule as to the court’s conclusions of law is different. Where there are no exceptions to the court’s conclusions of law, they cannot be reviewed here. Dunnington v. Frick Co., 60 Ark. 250, and Bluff City Lbr. Co. v. Floyd, 70 Ark. 418.

Mere statements in a motion for a new trial that certain rulings were made by the court and excepted to by the party amount to nothing unless it is shown by the bill of exceptions that such rulings were made and excepted to. A motion for a new trial has never been used to incorporate anything into the record or any exceptions to anything done by the court. Its sole use is to assign errors already committed by the court, except for newly discovered evidence. McKinley v. Broom, 94 Ark. 147, and Cravens v. State, 95 Ark. 321.

We do not think that the ruling in Craig v. Sims, 160 Ark. 269, is conclusive on the point of law decided 'by the majority opinion. In that case it was held that persons not paying their poll tax after a certain day named in the statute were not entitled to vote in the primary election. The precise point was whether a poll tax could be paid subsequent to the first Monday in July just preceding the primary election in August of the same year.

The language used in an opinion should be construed as a whole with reference to the precise question under review. Isolated sentences may be frequently quoted from, in an opinion which would tend to give it a-color not warranted by construing the opinion as a whole and with reference to the precise point under discussion and review.

The question under consideration in this case involves the construction of § 3738 of Crawford & Meses ’ Digest. That section, provides for the addition of emitted names iat 'any time after the assessment list has been delivered to the county clerk and placed in the hands of the collector before the Saturday next preceding the first Monday of July when the collector is required to make his final settlement with the county court. This section is a part of our general election laws, and it is more in accord with our previous decisions to hold that it is directory and not mandatory. For example in Whittaker v. Walson, 68 Ark. 555, it was held that payment of one’*s poll tax by another, not by'request, but as a gift, in order to influence his vote without ‘any offer on the voter’s part to reimburse the other for such payment will not constitute him a competent voter, though otherwise qualified.

In its opinion the court referred to the fact that the Constitution of this State declares the qualifications of an elector and further provides that every such elector who shall exhibit a poll tax receipt, or other evidence that he has paid his poll tax at the time of collecting taxes next preceding such election, shall be allowed to vote at any election in the State of Arkansas. The court said that the object of the requirement of the receipt, or other evidence of the payment of the poll tax was to make the payment of the tax by the elector a condition upon which he shall be allowed to vote, and to prohibit ‘him from voting until he does so. The court further said that the elector need not pay the tax in person, provided he in good faith authorized another to pay it for him, or ratified the act of another who had done so without having been previously authorized, and that the ratification must be accompanied -with the promise to reimburse him.

It would seem that, if the court thought that section 3738 was mandatory, it would not ¡have¿been necessary for the court to have held that another, per son-could not pay the poll tax for an elector without being first requested to do so by such elector and without any expectation or promise of reimbursement. Whittaker v. Watson, 68 Ark. 555, and Rhodes v. Driver, 69 Ark. 501.

Art. 3, section 2, of our Constitution provides that no law ¡shall be enacted whereby the right to vote at any election shall be made to depend upon any previous registration of the elector’s name. If § 3738 is to ¡be construed as mandatory, it would.'for all practical purposes be a registration statute.

Moreover Amendment No.6 of our Constitution, after declaring the qualifications of an elector, provides that if such elector shall exhibit a poll tax receipt, or other evidence that he has paid his poll tax at the time of collecting faxes next preceding such election, he shall be allowed to vote at any election in the State of Arkansas. We think this provision should be construed liberally in order to carry out its purpose. The only prerequisite is that the poll tax he paid within the time prescribed by law.

It is no answer to this to say that we have held that the provisions of our Constitution do not apply to primary elections. As we have already seen, § 3738 is a part of our general election laws and is also made a part of our primary election laws. It will be presumed that the Legislature intended that this section in question should receive the same construction as it would receive in a contest under the general election laws of the State.

The writer is authorized to announce that Judge Humphebys concurs in this dissent.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Knights of Pythias of North America etc. v. Reinberger.
    Opinion delivered February 23, 1925.
    ATTORNEY AND CLIENT — COMPENSATION—IMPLIED CONTRACT. — Though an attorney’s employment on behalf of a fraternal association was unauthorized, yet where his services were accepted by officers of the association authorized to employ him, the association will be liable for his compensation under an implied contract.
    Appealed from. Pulaski Circuit Court, Third Division ; Marvin Harris, Judge;
    affirmed.

      J. B. Boolcer and S. A. Jones, for appellant.
    Appellee ivas employed ¡to represent fbe personal interests of'Morris, -who had no authority to bind appellant. A person who has availed himself of the act of an agent must prove the authority under which the agent acted.. 53 Ark. 208 ; 21 R. C. L. p. 858, § 36. A principal is not liable for acts of his agent, which are not within the scope of his employment. 21 R. C., L. p. 899, § 28; 111 Ark. 575; 114 Ark. 9. Those who deal with an agent must ascertain the extent of 'his authority. Ill Ark. 229; 105 Ark. 11; 21 R. Cl. L. § 85, p. 908; 104 Ark. 459; The question of apparent authority had no evidence to sustain it, and instruction No. 5 was error. 21 R. C. L. § 34 pp. 854, 855.

      June P. Wooten, for appellee.
    Conceding that Morris had no authority to employ, appellee, and that appellee perf ormed the duty imposed on him, without objection on the part of those in authority to bind the lodge, and with their knowledge, the lodge would still be liable for a reasonable compensation. 103 Ark.. 513; 26 Ark. 360. Even though the contract was void, appellee could ¡recover upon quantum meruit. 133 Ark. 422; 66 Ark. 190. Motion for new trial was not filed in apt time. 49 Ark. 75. Bill of exceptions was not filed in time allowed. 58 Ark. 110:; 96 Ark. 319; 53 Ark. 415; 82 Ark. 196; 109 Ark. 543.
   McCulloch, C. J.

Appellee is a practicing attorney, and lie instituted this action against appeEant, a fraternal organization, to recover a sum alleged to have been earned as fee for services rendered by him for appellant. He alleged that he was employed by P. D. Morris, one of the officers of appellant society, the title of his office being Grand Keeper of Record's and Seal, and. that his employment was to appear for appellant at a hearing before the Attorney General, and in an action instituted in the circuit court of Pulaski County by the Attorney General to liquidate and dissolve appellant corporation. Appellee alleged "that his contract with Morris was that he was to be paid a retainer in the sum of $250, which was paid, and the further sum of $2,250, payable at the end of the litigation. He alleged that he appeared before the Attorney General as well as in the circuit court, and performed the services for which he was employed. Appellant answered denying that appellee was employed, and alleged that Morris had no authority to employ an attorney for appellant. There was a trial of the issues, which resulted in a verdict in favor of appellee for the recovery of $250.

The statutes of this State provide that the Attorney General may, at the instance of the Insurance Department, institute an action in a court of competent jurisdiction against any domestic insurance society which has failed to comply with any provisions of the law with respect to carrying out its contracts in good faith or in the transaction of its business, and thus procure a receivership to wind up the affairs of such corporation, but that such proceedings shall not be commenced “until after notice has been duly served on the chief executive officers of the society and a reasonable opportunity -given to it, on a date to be named in said notice, to show cause why such proceedings should not be commenced. ’ ’ Crawford & Moses’ Digest, § 6111. An adverse recommendation to the Attorney General was made by the Insurance Department against appellant society, and the Attorney General notified the officers to appear on a given date to answer the charges against the society.

According to the testimony of appellee, he was employed by Morris to appear for appellant society before the Attorney General, and he did in fact appear there and represent the society in the examination. The president and other ranking officers of appellant, were also present, and permitted appellee to appear there in the name of appellant to resist the proceedings against it. They contended, however, that appellee appeared as personal counsel for Morris, and the latter testified that he employed appellee solely for that purpose.

The Attorney General instituted an action against appellant in the circuit court, and, pursuant to his employment, appellee appeared there for appellant, but subsequently other attorneys were employed to represent appellant, and, according to the testimony introduced in that case, the record made by appellee in the hearing before the Attorney General was used in the circuit court as a basis of appellant’s defense in that action, and upon which a decision favorable to appellant was secured, and an affirmance of that judgment was obtained in this court. State v. Knights of Pythias, 157 Ark. 266.

The testimony adduced by appellant tended to show that Morris was without authority to employ counsel, but the verdict of the jury can be sustained upon the theory that appellee performed the services for which he claims compensation, and that officers of the corporation whose authority is unquestioned accepted these services and knew that they were being performed for appellant; hence there was an implied contract. Boynton v. Brown, 103 Ark. 513. The proceedings were against appellant, and its officers present at the hearing had no right to assume that appellee appeared in any other capacity than as appellant’s counsel.

Appellee did not recover his full fee according to the contract, but it is unimportant- to determine whether his recovery should have been on the implied contract or upon the quantum meruit, since he has not appealed, and the evidence is ’Sufficient to establish the reasonableness of the compensation awarded by the jury.

The court’s charge to the jury and the court’s rulings with respect to giving and refusing instructions have not been abstracted, hence we must assume that the case went to the jury upon proper instructions and that there was no error of the court in that respect.

Judgment affirmed.


text:
    National Life Insurance Company v. Gregg.
    Opinion delivered March 2, 1925.
    1. Insurance — construction of policy as a whole. — As it is the duty of the court to give effect to all of the clauses of a policy of insurance, a clause defining the insured’s liability and containing no stipulation against liability will be construed not to conflict with another clause containing a clear and unambiguous stipulation against liability for injury from specified causes.
    2. Insurance — waiver of stipulation. — Where the insurance company wrote two letters requesting certain proofs and expressly stating that it neither admitted nor denied liability, a third letter constituting a mere continuation of the request for proofs will not be a waiver of a stipulation concerning non-liability.
    Appealed from Craighead Circuit Court, Jonesboro District; G. E. Keck, Judge;
    reversed.

      Gordon Frierson and Carmichael & Hendricks, for appellant.
    The court erred in holding that the covering clause could be extended by waiver. 122 Ark. 468. The company had the right to fix the terms and conditions upon which it would insure appellee. 143 Ark. 374. Where there is no ambiguity, policies of insurance must be interpreted according to the plain import of the language used. 161 Ark. 597. As to the question of the violation of law, we think the case of American National Ins. Go. v. White, 126 Ark. 493, controls in this ease. See also, 13 L. R. A. . (N. S,) 262; 261 S. W. 320; 132 Arle. 546; 12 Am. St. Rep, 484; 59 Am. St. Rep. 476; 25 Am. St. Rep. -685.

      Hawthorne, Hawthorne & Wheatley, for appellee.
    There wias no error in holding that the covering clause was extended by waiver. 134 Ark. 52; 128 Ark. 92; 96 U. S. 234; 24 L. Ed. 689; 217 U. S. 323; 54 L. Ed. 782 ; 96 U. S. 234; 187 TJ. S. 335; 183 IT. S. 308; 164 Ark. 75; 53 Ark. 494; 14 R. C. L. 1181, § 357; 25 Cyc. 872 Requests for further proofs of loss 'constitutes a waiver of known forfeitures. 152 Ark. 64; 14 R. ¡C. L. 1197; 74 So. 807; L. R. A. 1917-D 1091, 164 Ark. 608; 163 Ark. 7; 118 Ark. 22; 53 Ark. 494.
    When a clause in a contract of insurance is susceptible of two constructions, that one will be adopted which is most favorable to the assured. 74 N. E. 964; 8 L. R. A. (N. S.) 708; U. S. 25; 46 L. Ed. 64; 46 Tex Civ. App, 394; 102 S. W. 773; 34 L. R. A. 301; 59 Am,,St. Rep. 473; 36 S. W. 169.
   McCulloch, C. J.

Appellant issued to George McGee its policy of indemnity for “loss of life or time by either accident or sickness and for loss of limb or sight by accidental means,” the total sum payable for loss of life being $200. The policy was payable to appellee’s intestate, Mary McGee, who was the wife of George McGee. While the policy Was in force, George McGee came to his death as the result of a pistol shot fired by Toney Lowell, and this action was instituted against appellant by appellee’s intestate, Mary McGee, to recover the sum of $200, the amount specified in the policy as a death benefit. There was a recovery in the trial below, and, after the appeal was prosecuted here, Mary McGee died, and the cause was revived in the name of appellee as administrator of her estate.

The pertinent clauses in the policy are as follows:

“Total Accident Disability.”
“ (A). At the rate of twenty dollars per month for the period, not exceeding five consecutive years, that bodily injuries effected during the life of this policy, solely through external, violent and accidental means, shall,, directly and independently of all other causes, wholly and continuously, from date of accident, disable and prevent the insured from performing every duty pertaining to his business or occupation, and require and receive at least once in each seven days the attendance of a legally qualified1 physician or surgeon, but shall not result in any of the losses mentioned in paragraph C.”
“Specific Total Losses.”
“(C). If the injuries described in paragraph A shall, independently of all other causes, immediately, wholly and continuously from date of accident disable and prevent the insured from performing every duty pertaining .to his business or occupation shall, during the period of such disabilitjr and within ninety days from date of accident, solely result in any one of the following specific total losses (suicide, sane or insane, is not covered), the company will pay, in lieu of all other indemnity except that arising under paragraph. L * * *, but only one specific total loss (the greater) resulting from one accident will be paid.”
“Not Covered.”
“(F). This policy does not cover injuries, fatal or non-fatal, which are received as the result of or while violating’ law or being under the influence of any narcotic or intoxicant or on the right-of-way or other property of a railway corporation, other than stations, platforms or regular crossings prescribed by law, not being at the time a passenger or employee of such railroad in the discharge of duty, or which are caused wholly or in part by the intentional act of any person other than the insured (assaults committed on the insured for the sole purpose of burglary or robbery excepted).”

It is, as before stated, undisputed that George McGee came to his death as the result of a pistol shot fired by Toney Dowell, and the evidence tends to show that Dowell fired the shot intentionally, but was acting-in self-defense, but it may be said that the evidence on the matter of self-defense was conflicting.

The court refused to submit the case to the jury, and, on the trial, gave a peremptory instruction in favor of the plaintiff for the recovery of the full amount specified in the policy.

Appellant defends on the sole ground that the fatal injury of the assured resulted either while he was violating the law or from the intentional act of Toney Dowell in firing the shot. On the other hand, it is contended' by counsel for appellee, in support of the judgment, that clause “F” of the policy is in conflict with clause “ C, ” under which liability is predicated, and that the former must control, there being no condition or stipulation against liability in that clause. Our conclusion is that this contention is not well founded, for the various clauses of the policy are to be read together, and clause “F” is a clear and unambiguous stipulation against liability where an injury results from either of the causes mentioned therein. The several clauses can be ’ read together in harmony, and it is our duty to do so and give full effect to all of the clauses of the policy to the extent that they are harmonious.

It is next contended by appellee that there was a waiver on the part of appellant of the stipulation concerning non-liability for injuries resulting from causes mentioned in clause “F” of the policy. On the other hand, it is the contention of counsel for appellant that the policy does not cover the causes of injury mentioned in clause “F,” and that therefore a waiver cannot create liability. It is also contended that there was, in fact, no attempt at waiver and no conduct on the part of appellant or its agents which would constitute waiver. The shortest way out of this controversy is to determine whether or not there was a waiver, pretermitting any decision of the dispute as to the effect of clause “F.”

According to the evidence in the case, there was correspondence between appellant and Mary McGee, through the latter’s attorney, concerning the proofs in the case, and appellant, in the correspondence, asked for proofs as to the manner, in which George McGee came to his death. Each of the letters written by appellant, except one of them, contained a statement to the effect that, in requesting proofs, the company neither denied nor acknowledged liability, but desired to obtain information for use of the claim department. This statement was contained in the first letter and in another, but in still another letter there was no qualification of the request for proof. In the face of the disclaimer, the requests for proof did not constitute a waiver. Phoenix Insurance Co. v. Minner, 64 Ark. 590; Interstate Business Men’s Accident Assn. v. Green, 132 Ark. 546. It is not essential that the disclaimer should have been repeated in every letter of the continuous correspondence in order to keep it alive and1 prevent a waiver. Later letters constituted a mere continuation of the request for proofs, and it was stated in the beginning that the request should not be understood as either an admission or a denial of liability. We are of the opinion therefore that, according to the undisputed evidence, there was no waiver of the stipulation, whether the clause in question constitutes an exclusion from liability or a condition upon which liability rests.

Reversed and remanded for a new trial.


text:
    Jones v. Keebey.
    Opinion delivered March 2, 1925.
    1. Sales — agreement to waive retention op title. — If there was an agreement, otherwise valid, for the relinquishment of a seller’s retention of title, the effect -of this agreement would not be obviated by the fact that the seller erroneously believed that the ■purchase money was secured by a bond given in an action by the seller against the purchaser.
    2. Sales — conditional sale — waiver.—A seller of chattels retaining title until paid did not waive his title as to a transferee by suing the purchaser to recover possession, such action not being inconsistent with a subsequent action against the transferee for possession of the chattels.
    3. Sales — conditional sale — election op remedies. — The fact that a seller sued the purchaser for possession of chattels of which the title was retained, instead of the purchaser’s wife to whom the chattels had been transferred, did not constitute an election of remedies, nor preclude ithe seller from subsequently suing the wife.
    4. Sales — agreement to waive retained title — consideration.—A seller’s agreement to waive title retained as security for payment of the purchase price of chattels which the purchaser gave to his wife, upon the wife’s agreement to hold possession of the property and not to return it to the purchaser, held without consideration.
    5. Appeal and error — harmless error. — The error of instructing that a seller would not be bound toy an agreement to waive the title to chattels sold to-a purchaser and by him given to his wife, if the seller believed that he was secured toy a 'bond excuted by the purchaser, held harmless where such agreement was without consideration.
    Appeal from Sebastian Circuit Court, Ft. Smith District; John E. Tatum Judge;
    affirmed.

      A. A. McDonald, for appellant.

      Melbourne M. Martin, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover possession of two diamond rings. Appellee is a dealer in jewelry and gems, and he sold the rings in controversy to appellant’s husband, B. W. Jones. The sale was on credit, except a small amount paid, and Jones executed two notes for the purchase price of the rings, each of the notes stipulating that the title to the rings was retained by appellee until the purchase price should be paid in full. Neither of these notes has ever been paid. Jones gave the rings to appellant as a wedding present. Appellant and Jones have since separated, and a divorce suit is pending, or was at the time of the trial of this cause below. After the maturity of the notes, and after appellant and Jones separated, appellee instituted an action against Jones to recover possession of the rings, and caused an order of delivery to be issued with a capias clause, which, was served, the officer failing to find the property, and' Jones gave bond for his appearance, and was released from the writ. On the trial of that cause the court rendered judgment in favor of appellee against Jones on the pleadings, refusing to .submit the issues to the jury as to whether or not Jones had possession of the property, either actual or constructive, at the time of the commencement of the action. The court rendered judgment on Jones’ bond, but, on appeal to this court, the judgment- was reversed and the cause was remanded. Jones v. Keebey, 159 Ark. 586. Appellee having ascertained that the rings were not in the possession of Jones, he dismissed that action and commenced the present one against appellant. The foregoing facts are undisputed.

The only defense offered by appellant is that appellee waived his retention of title by an election to pursue another remedy and by express agreement entered into with appellant. The basis of this defense is that, while appellee’s action against Jones was pending in this court on appeal, appellee entered into an oral agreement with appellant that, if she would hold possession of the rings and not return them to Jones, he (appellee) would permit her to borrow money on the rings, and would look to Jones’ bond for settlement of his debt. Appellant testified to that effect, but there was a conflict in the testimony, appellee denying that he made any such agreement. with appellant. The court gave an instruction, over appellant’s objection, telling the jury that, if it was found that appellee, “when he waived his lien-upon the rings, if he did1 waive it, believed that the bond was for the value of the rings or their return to him, then in that event Keebey would not be bound by such waiver, ■if it was made.” This instruction was erroneous, for, if there was an agreement, otherwise valid, for the relinquishment or waiver of appellee’s retention of title, the effect would not be obviated by the fact that appellee believed that his debt was secured by the bond in the other action. This instruction was, of course, prejudicial, unless we conclude that the undisputed evidence fails to show a valid waiver or relinquishment by appellee of his retention of title.

Our conclusion is that, upon the undisputed evidence, there was no valid relinquishment by appellee of his retention of title. In the first place, it cannot be said that there was any relinquishment or waiver by election to pursue an inconsistent remedy. The prior action against Jones was not an inconsistent remedy, for the reason that it was an action to recover the property or its value. We have often decided that, upon retention by the vendor of title to property sold as security for the payment of the purchase price, an action to recover the price constituted a ¡recognition of the passage of the title of the vendee, and operated as a waiver. Neal v. Cone, 76 Ark. 273; Thornton v. Findley, 97 Ark. 432.

The fact that appellee sued Jones for possession, instead of instituting the action then against appellant, did not constitute an election of remedies so as to preclude him from following the property into the hands of whosoever held possession, ¡'and instituting an action therefor.

The question of election of remedies being thus eliminated, it remains only to consider the alleged agreement of appellee to waive his retention of title and look to Jones’ bond for settlement of his debt. This agreement constituted a new contract, and must have been based upon some consideration as between the parties. A bare agreement between the parties permitting appellant to borrow money was not binding on appellee. Ames Iron Works v. Richardson, 55 Ark. 642; Bell v. Old, 88 Ark. 99. The effect of the agreement might be different if appellant had, pursuant to the agreement, borrowed money from a third party against whom appellee attempted to assert his right to the property. In the present'action there are no rights of third parties involved. The mere agreement on the part of appellant to hold possession of the property and not return it to her husband was not a consideration to support a new agreement with appellee with respect to his relinquishment or retention of title. The effect was merely an agreement to hold possession of the property, which was already in appellant’s possession. The erroneous instruction given by the court was therefore harmless, for the reason that appellee was entitled to recover upon the undisputed evidence.

Affirmed.


author: Wood, J.

text:
    McCrary v. Wilkins.
    Opinion delivered March 2, 1925.
    1. ■ Trial — transfer of cause — waiver of objection. — Objection to the removal to equity of an action requiring an accounting between partners, when it was properly triable at law, was waived where the removal was by consent.
    2. Partnership — evidence.—Evidence held to sustain a finding that a partnership in the hauling business existed between plaintiff and defendant.
    3. Joint adventure — accounting.—Where a Ford car was acquired, either >as a result of a joint enterprise or as part of partnership assets, it was proper to direct an accounting to determine the interest of the parties in the car.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      8. S. Hargraves and John M. Prewett, for appellant.
    The demturrer should have been sustained. The court erred in transferring the cause to the chancery court. 108 Ark. 25,2. An action at law cannot be brought by one (partner against another for money alleged to be due him on account of partnership transactions until after a settlement. 140 S. W. 1193; 142 N. Y. 1. The only action that 'could be. sustained before settlement is a suit for an (accounting. 72 Ark. 469; 23 Ark. 333; 12 Am. Dec. 649. The agreement of 'Counsel t'o transfer the cause to the chancery court did not give that court jurisdiction of subject-matter. 48 Ark. 151; 88 Ark. 1; 129 Am. St. Rep. 73; 85 Ark. 213; 203 Ill. 92; 67 N. E. 497; 124 Ill. 516; 16 N. E. 909. An agreement by two persons to buy an article* together does not amount to an agreement to form a partnership. 79 Ark. 499; 130 N. T. 54; 145 App. Div. 280; 132 N. W. 477; 54 Ark. 384; 138 Ark. 287; 42 Ark. 390; 60 Am. St. Rep. 344; 30 Oyc. 370; 93 Ark. 526; Parsons on Partnership, § 58.

      Mann •& Mann, for appellee.
    The chancery court had jurisdiction. 74 Ark. 104.
   Wood, J.

This action was instituted by Wilkins against McCrary and the St. Francis Motor Company in the circuit court of St. Francis County, Arkansas, to recover the sum of $240. Wilkins alleged that he and McCrary were joint owners of a Ford touring car of the value of $480; that McCrary, without right and over his objection, sold the car to the St. Francis Motor Company, and thereby converted ¡the car to his own use, to his damage in the sum of $240, for which he prayed judgment. McCrary and the motor company answered denying the allegations of the complaint. The cause was, by agreement of parties, transferred to the chancery court.

Wilkins, in his deposition, was asked to explain the exact arrangement between him and1 McCrary in regard to the purchase of a wagon, and said: “Well, to start at the first of it, Mr. McCrary and I were talking over this 'Seed business, and he told me that he had the contract for the hauling from the Planters’ Grin to the oil mill, and made the proposition to m'e that if I was to go one-half on a wagon and expenses that we would go in one-half each in the seed hauling, that he had a team that he would furnish, and I was to look after the hauling and the team while it was down there. This was agreeable to Mr. McCrary and myself.” McCrary was asked to state the business relationship between himself and Wilkins in 1922, and testified as follows: “The fail of 1922 I offered Mr. Wilkins a proposition that, if he would help me buy a wagon and get a place to keep a team here in town, and look after this team, that, after the expense of the wagon and the expense of the hauling come o.ut, why I would split the profit 50-50 on the seed hauling from the Planters ’ Grin.

Witness T. R. Shawver testified that, on or about September 6,1922, he heard a conversation between Wilkins and McCrary in regard to the purchase of a wagon from Stevens Hardware Company. McCrary had bargained for a wagon from Pettus & Buford. Wilkins had bargained for a wagon from Stevens Hardware Company. The wagon was to be charged to the two men jointly. The first reason for purchasing the wagon from the Stevens Hardware Company was that the purchasers thought they were getting a better value than from the other dealer. The second reason for making the purchase from the Stevens Hardware Company was that a F;ord car was being- given away in a drawing contest, and they could get tickets on this purchase of the wagon, provided they paid the account in thirty days from date.

Witness Fenner Laughinhouse, a member of the firm of the Stevens Hardware Company, testified concerning the purchase of the wagon above mentioned as follows: Witness negotiated with McCrary and Wilkins for the sale and purchase of the wagon. Witness’ firm delivered the wagon to a negro sent after it by McCrary. Before this, McCrary had agreed with witness as to the price of the wagon. The wagon was to be charged to McCrary, to keep from opening an account with McCrary and Wilkins. McCrary already had an account with witness ’ firm. McCrary paid for the wagon by check. He paid his account, and the wagon was included in the account. About that time there was an advertising-scheme on hand by the merchants in Forrest City by which they gave to casli purchasers tickets in a drawing that was to take place some time in October, at the imperial Theatre, and the merchants in the city took advantage of it and gave to cash purchasers coupons or. tickets which entitled them to a chance in the drawing. The Stevens Hardware Company took part in that advertising scheme. When the wagon was purchased and paid for by McCrary, the Stevens Hardware Company delivered to him coupons or tickets for the drawing. They delivered to McCrary about 187 tickets. Witness did not give him in one lot 180 tickets to cover the wagon purchase and seven to cover his account separately. They were all attached. Witness was asked what connection Wilkins had with the sale of this wagon, and answered, “Only he came in to ask about it, figured on it, and told me they were figuring’ on it together. ’ ’ Witness thought it was two different wagons at first — didn’t know it was to be used' by both of them. Wilkins came up and had a conversation with witness, and, looked at it, and witness didn’t mention that he was figuring on selling another. Wilkins told witness that it was the same wagon. Witness thought he was selling two wagons instead of one. He stated that both Wilkins and McCrary had individual accounts with the hardware company. After the controversy arose between Wilkins and McCrary as to whether the purchase of the wagon entitled Wilkins to an interest in the Ford car drawn by McCrary with one of the tickets issued by the hardware company, McCrary wrote Wilkins a letter in which he stated: “Inclosed you will find a slip with the expense and the returns of the wagon. There is still a balance of $20.40 on the wagon, and the expense not paid by the proceeds of the wagon. If this is not satisfactory enough to show that you have no interest in the drawing, you will have to prove otherwise, for I can’t see it in any other way. ’ ’ Accompanying this letter was a statement showing that the proceeds from the wagon amounted to $150 and the expense in the purchase of the wagon and in connection with the use thereof was $170, there being a difference between the proceeds and the expense of purchase and operation of $20.40.

The above are the salient features of the testimony upon which the court found that there was a partnership between McCrary and Willdns for the hauling of cottonseed during the season of 1922, and, over the objection of McCrary, directed an accounting between the parties, and, upon these statements in evidence, found that there had been received from the partnership business $423.55; that there had been invested' in property out of the partnership funds the sum of $127.50, and that the expense incurred in addition to this amounted to $272.85, leaving a balance in money in McCrary’s hands of $23.20, in addition to the proceeds of the car and the items of personal property purchased with partnership fund's.- The court entered a decree in favor of Wilkins against McCrary and the motor car company for the sum of $243, a half value of the Ford car, and in favor of Wil-ldns against McCrary for a half of the balance of the money in the hands of McCrary, and also directed that the articles of personal property be sold and the proceeds divided equally between the parties. From that decree McCrary prosecutes this appeal.

Under the pleadings in the case, the action was properly begun at law, and, if the appellants had objected, it would have been error, without an amendment in the pleadings, to have transferred the cause to the chancery court. But the appellants and the appellee by express agreement asked that the cause be transferred to the chancery court. Although the issue raised by the pleadings was one involving only the title to the Ford car and the damages resultant from the alleged conversion of appellee’s interest by the appellants, nevertheless, to determine that issue under the proof of the contract ¡between the parties, it was necessary to have an accounting. It turns out, from the developments made by the testimony, that there was no complication in the matter of accounting, and that the cause could have been determined in the law court. Still, the subject-matter of an accounting was one over which the chancery court had jurisdiction, and when the parties asked the chancery court to assume jurisdiction of the subject-matter and it did so, they must be held to have waived any objection to the determination of the cause by that court. As was said by this court in Cribbs v. Walker, 74 Ark. 104, at page 122, “this is not a case, where there is such a lack of jurisdiction of either the parties or subject-matter as the parties cannot waive. ’ ’ See other cases cited in the opinion.

The testimony was ample to justify the court in finding that a partnership existed between the appellant and the appellee in the business of hauling during the fall of 1922 from the Planters’ Grin to the oil mill.

In Mehaffy v. Wilson, 138 Ark. 287, this court said: “Mere participation in the profits and losses of a business alone would not make a participant a partner. Whether in fact a partnership exists depends upon the intention of the parties to be discovered from the contract into which they entered, construed in the light of all the facts and circumstances that obtained. Whether a, given agreement amounts to a partnership between the partners themselves is always a question of intention.”

But, whether the relation of partnership existed between the appellant 'and appellee or not, it is clear that the purchase of the wagon from the Stevens ¡Hardware Company and the drawing of the Ford car in controversy grew out of their joint enterprise. An accounting between them was essential to determine whether the appel-lee had any interest in the car Which he alleged the appellant had converted .to his own use. The court therefore did not err in directing an accounting between the appellant 'and the appellee of ¡their joint enterprise, and, having assumed jurisdiction for the purpose of ascertaining whether or not the 'appellee had an interest in the car which the appellant had converted to his own use, it was not error for the court to determine the status of the accounts of the joint enterprise and to render its decree adjusting the accounts and concluding the rights of the parties.

The decree of the court is in all things correct, and it is therefore affirmed.


text:
    Shull v. Walrath & Sherwood Lumber Company.
    Opinion delivered March. 2, 1925.
    1. TRIAL — argumentative INSTRUCTION. — An instruction in an action for breach of a contract for the sale of a carload of lumber, that, even though the buyer was diligent in corresponding with the seller in relation to the claim that the lumber did not comply with the order, the seller’s failure to answer all letters was not an admission of liability, held properly refused aS being argumentative.
    2. Sales — inspection op lumber — instruction.—An instruction that if the seller of <a carload of lumber agreed to its inspection ■and the buyer in compliance therewith had the lumber inspected the seller would be bound by the inspection and liable for the costs thereof, unless the seller withdrew the agreement, and that the burden was on the seller to prove such withdrawal held correct.
    3. Sales — breach op contract — evidence.—In a buyer’s action for damages for breach of a contract to deliver a car of lumber of a ' certain grade, admission of the correspondence between the buyer and a lumber dealers’ association and between the buyer and its customer was not error where the jury were told not to consider such correspondence in detemining whether the lumber complied with the contract.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    -affirmed.

      Trimble & Trimble, for appellant.
    A letter properly mailed is presumed to reach, its destination in due -course of mail. 127 Ark. 49-8; 98 Ark. 389; 10 R. C. L. 352.

      Chas. A. Walls, for appellee.
    After -an agreement has been made to .arbitrate, it cannot be defeated by a change in mind of one of -the parties. 76 Ark. 153; 132 Ark. 215; 28 Ark. 519; 36 Ark. 317. The action of the arbitrator is final and is enforceable. 96 Ark. 410; 83 Ark. 136; 88 Ark. 213; 79 Ark 506; 88 Ark. 557; 170 Pao.‘360; 221 Fed. 612; 165 Cal. 497; 133 Pac. 289; 107 Md. 146; 48 Pa. 61.
   Wood, J.

In March, 1922, one B. H. Beverstock, acting for the appellee, Walrath & Sherwood Lumber Company, of Omaha, Nebraska, ordered a carload of lumber from the appellant, 0. L. Shull, of Lonoke, Arkansas, to he shipped to the appellee at Dallas, South Dakota. In compliance with this order, and as directed by the appellee, the appellant, on April 16, 1922, shipped a carload of lumber to J. H. Smith Lumber Company at Dallas, South Dakota. Beverstock also wrote appellant that his customer “wanted a nice car of clear white oak, wagon stock.” When the car arrived at its destination, the Smith Lumber Company notified the appellee that the car was not up to the grade ordered, and that it would not be accepted on that account. The appellee, on the 9th of May, wired and also wrote the appellant that the car was rejected, giving as a reason therefor that it was brittle, checked, worm-eaten, water-soaked and dry-rotted. In response to the telegram, the appellant wired the appellee to have the car unloaded, and wrote the appellee to the effect that its customer was entirely in error in stating that the car was not up to grade, and requesting the appellee to have its customer go through the material carefully, lay out any pieces that it might consider not up to grade, and that appellant would do all possible to reconcile its views to meet the views of appellee’s customer.

On May 17, 1922, the appellee wrote the appellant, stating that appellee had asked its customer to unload car and inspect the same, and that, in answer, the appel-lee’s customer still insisted that the car had been inspected by it sufficiently to ascertain that it was off-grade; that appellee, on its own account, had asked its customer to unload the car in order to save demurrage, and requested the appellant to arrange for official inspection of the car, stating that, if such inspection proved the lumber to be up to the grade, appellee would accept it; otherwise, it would expect the appellant to make disposition of the car and return to the appellee the money it had paid on the oar. On the 19th of May the appellee again wired the appellant, and also wrote, stating that the investigation developed that the ear was not what appellee ordered, and that its customer refused to handle the car; and offered its assistance to appellant to make the best disposition of the car possible, and concluding its letter as follows: “If you want us to have this car of oak unloaded for your account to stop demurrage, and desire to have it officially inspected, we will stand by the inspection and try to arrange for the unloading.”

On May 20, 1922, the appellant responded, saying-in effect that the appellant considered that the -car was up to grade, .according to the contract, and that appellee and its customer were wrong in the inspection, and, among other things: “We are arranging with the National Hardwood Lumber Association to send a national inspector to make an inspection, if we felt your customer was wrong in his inspection. * * * We are willing to abide by the decision of a National Hardwood Lumber Association inspector, party in the wrong to stand all costs attached thereto. * * * We are going to insist that you accept the above offer, namely, to abide the inspection of a nationál inspector, or that you pay us in full for the shipment.”

On May 25 the appellee, in response, wrote to appellant, .stating in substance that it had requested its customer to unload the car and to hold the same for inspection by the National Hardwood Lumber Association, and requested the appellant to arrange for prompt inspection. On June 14 the appellee notified the appellant that the lumber had been unloaded and was awaiting the inspection by the National Hardwood Lumber Association, and renewing its request that appellant promptly have the inspection made. On June 28 appellee wired the appellant to answer its letters of May 25 and June 14 in regard to inspection, and on July 10 the appellee agaiif wired that it must have reply to wires and letters with reference to the car. On July 12 the appellee wrote the appellant urging it to have the inspection quickly made, in order that the matter might be adjusted, and again on July 18 urging the appellant to answer its wires and letters, and again on 19th appellee wrote the appellant, stating that, np to the 12th, no inspector had reached Dallas, and asking of the appellant the courtesy of a reply, stating the steps appellant had taken, if any, looking to the inspection. On the 19th of July the appellee wrote to the National Hardwood Lumber Company Association (hereafter called association) stating the transactions and correspondence that had taken place between the appellee and the appellant, and inquiring of the association whether the appellant had taken any steps to have the inspection made, and whether the delay was caused by the inability of the inspector to reach Dallas, South Dakota. The association replied to the appellee’s letter, saying that the inspection had not been ordered by the appellant.

On the 24th of July the appellee wired the appellant, asking the date and through whom the inspection of the car was ordered. Thereafter appellee wrote other letters to the appellant, urging him to prompt action and to make replies to its letters and telegrams. On August 5 the appellee wrote the association asking it whether the inspection was ordered and the date when it would be able to inspect, and also on the same day wrote the appellant urging prompt action and replies, and again on the 10th to the same effect, and stating that, if it didn’t instruct the association to arrange for a prompt and immediate inspection, appellee would ask for an inspection, and that “if, upon inspection, ithe lumber was not up to grade, appellee would take' the necessary steps to retrieve its loss.” On August 9, one W. E. Robinson, who was the inspector of the association in that territory, wrote to the appellee notifying it that the appellant had made no request of him for inspection. Thereafter there was a correspondence between the appellee and the association in regard to the inspection, which shows that the appellee requested the association to make the inspection, and the association directed its agent in that territory to make the inspection at the expense of the appellee, and that the inspection was made, and the appellee paid the expense thereof.

On October 4 the appellee wrote appellant, inclosing the amount of the expense of the inspection, and notifying it that appellee would draw on appellant for that sum, and stating that, if the draft was returned unpaid, it would immediately bring suit for its damages.

This action was instituted by the appellee against the appellant. The appellee alleged in substance that the appellant had failed to comply with its contract to ship a carload of lumber according to the order given by the appellee to the appellant, and that, by reason of such breach, the appellee had been damaged in sums amounting in the aggregate to $1,483.03, for which the appellee prayed judgment.

The appellant answered admitting that it had accepted the order of the appellee and had shipped the lumber, but denied specifically that it had not complied with its contract in every particular, and set up by way of cross-complaint that the carload of lumber shipped under appellee’s order was priced at $1,383.39, on which the appellant had received an advance payment of $735, leaving a balance due of $648.39, for which the appellant prayed judgment.

The testimony adduced on behalf of the appellee was substantially as above set forth, and, on behalf of the appellant, there was testimony tending to show that the lumber was carefully inspected before shipment by the appellant and the man from whom the appellant purchased the lumber, and that the invoice of the lumber was correct, and that the lumber, when it was shipped by the appellant to the Smith Company, under the direction of the appellee, was in strict compliance with the order; that, if there was any red oak contained therein, as reported by the inspector of the association, and if the lumber was not otherwise up to grade, it was not the car shipped by the appellant.

The appellant testified to the effect that, in August, 1922, he wrote the appellee not to have the inspection by the association, that the appellant would not abide by it, and requested the appellee to have its customer go through the car and reject only the pieces not up to grade; that he mailed these letters to the appellee’s address, with the appellant’s return address on the corner of the envelope, and that said letters were never returned. The testimony on behalf of the appellee was to the effect that it did not receive these letters of the appellant saying that it would not abide by the decision of the inspector. There was testimony on behalf of the appellant to the effect that, if the lumber had been unloaded and stacked in May, unless it was properly stacked, it would be damaged by exposure to the weather, and that any damage or failure of the lumber to come up to the grade as shown by the inspection in September folio-wing would be the result of the exposure to the weather or improper handling of the lumber after its delivery at its destination. The appellant objected to the correspondence concerning the carload of lumber between the appellee and the Smith Lumber Company at Dallas, South Dakota, and also to the correspondence between the appellee and the association and its inspector. The appellant objected to the following language of the court’s charge: “The correspondence passing between these parties is identified by the defendant authorizing such inspection, that thereby created liability against the defendant in this case on the report of the inspector, and the only way that he can escape such liability is by establishing by a preponderance of the testimony his refusal to authorize such National Hardwood Lumber Dealers’ Association inspector to m'ake such inspection, and the burden is upon him to show the withdrawal of such proposition and such agreement. ’ ’

The appellant also objected to the following language in the concluding part of the fourth paragraph, as follows: “In addition to that, the order mnst meet the size, it being dimension stuff.” The appellant asked the court to instruct the jury as follows: “1. The jury are instructed that, although you may find from the testimony in this ease that the plaintiff was very diligent in its correspondence, .and that the said defendant did not answer a number of its letters, yet, under the law, his silence to said correspondence of the plaintiff, after a: dispute had arisen between the plaintiff and the defendant as to the grade of the lumber, cannot be' regarded as an admission of liability .on the part of the said defendant.” The court refused to give this instruction, to which ruling the appellant duly excepted. The appellant also asked the court to instruct the jury in effect that, if the appellant first agreed to an inspection by the association, and later, before an inspection was,, made, wrote the appellee that it would not abide by the inspection, and that such letter was posted by the appellant, properly addressed to the appellee and mailed in due course as other letters, then the burden would be upon the appellee to show that the letter was not received, 'and ithat, unless the appellee made this proof, it would not be entitled to recover the inspection fees, and would not be bound by the inspection, even though the lumber was found to be defective. The court refused this prayer, to which appellant duly excepted.

The jury returned a verdict in favor of the appel-lee in the sum of. $1,515.33. Judgment was entered in appellee’s favor for such..sum, from which.is this appeal.

The appellant’s prayer for instruction No. 1 was argumentative, and the court did not err in refusing to grant such prayer. The court did not err in refusing to grant appellant’s prayer for instruction No. 2. 'The undisputed testimony shows that the appellant agreed to be bound by an inspection of the association. In a letter of May 20 it says, among other things: “We are willing to abide by the decision of a National Hardwood Lumber Association inspector, party in the wrong to stand all costs attached thereto. * * * We are going to insist that yon accept the above offer, namely, to abide by the inspection of a national inspector, or that yon pay ns infnll for the shipment.” This proposition was definitely accepted by the appellee. The nndisputed evidence likewise shows that there was'an inspection of the car by the association.

The appellant contends that, after the agreement for the inspection, bnt before it was made, it wrote a letter to the appellee in which it countermanded and withdrew from the agreement to inspect, which letter it addressed and mailed in due course to the appellee, and that, such being the case, the burden was thus placed on the appellee to prove that it did not receive the letter and that the agreement for inspection had not been recalled, and was still in force. The phraseology of instruction No. 2, in which this theory and contention of the appellant is presented, was calculated to confuse and mislead the jury as to the burden of proof on the issue as to whether or not there was an agreement for inspection and whether or not the inspection was made by which the appellant and appellee were bound. These issues were fully and correctly submitted to the jury in the oral instruction which the court gave, and which is, in part, as follows: “In addition to that, if you find that the defendant directed that this lumber be inspected by a man representing the National Hardwood Lumber Dealers’ Association, and, in compliance with such directions, plaintiff procured a man to make such inspection, and the defendant agreed to be bound by that inspection, then he would likewise be liable for the expenses of the inspection for which the plaintiff must pay; unless you further find by a preponderance of the evidence that, after making such agreement, and expenses were incurred in connection with obtaining such inspection, he countermanded and refused to be governed by such inspection, and the burden is upon him to establish that. The correspondence passing between these parties is identified and admitted by the defendant, authorizing such inspection; that thereby created liability against the defendant in this case on the report of the inspector, and the only way that he can escape such liability is by establishing by a preponderance of the testimony his refusal to authorize such National Hardwood Lumber Healers’ Association inspector to make such inspection, and the burden is upon him to show the withdrawal of such proposition and such an agreement.”

The appellant also contends that the court erred in permitting the correspondence between the appellee and its customer, the Smith Lumber Company, and between the appellee and the association and its agent, Borgeson, and between the appellee and the appellant, to be introduced in evidence. In admitting the correspondence, the court instructed the jury in effect that it was not to 'be considered by them in determining whether or not the car of lumber in controversy was in compliance with the contract as to quality and quantity. With this restriction as to the correspondence, it was competent and relevant to show the transaction between the parties as to the order and shipment of the lumber. The principal issues in the case are whether or not the carload of lumber ordered by the appellee from the appellant for its customer was delivered, and whether or not the lumber was in compliance with the order. There was no dispute, as we understand the evidence, about the dimensions. The issues upon the facts were submitted to the jury under correct instructions, and .its verdict on these issues is conclusive here against the appellant.

We find no error in the record, and the judgment is therefore affirmed.


text:
    Edwards v. Clark.
    Opinion delivered March 2, 1925.
    Appeal and eRkor — necessity of bringing up all the evidence. — An assignment of error in giving a certain instruction as “not justified by the evidence in ¡the ease” will not be considered on appeal where the bill of exceptions does not show- either expressly or ■inferentially that it contains -all the evidence.
    Appealed from Greene Circuit Court, G. E. Keck, Judge;
    affirmed.

      Jeff Bratton, for appellant.
    Instruction No. 6 given by the court was erroneous. The instruction was given after argument of the case had commenced, and laid undue stress upon the matter of the ¡sun shining in appellant’s eyes, practically amounting to instructing a verdict for the plaintiff, and that, too, upon a proposition injected into the case by the plaintiff not based on any allegation in the pleadings and not supported by any evidence of any consequence. As sustaining the contention of appellant, see 14 Ark. 296; 14 R. C. L. p. 780,784; 10 A. L. R. 296. If section 1292, C. & M. Digest, is to be construed literally, the instruction came too late and was improper. Instruction No. 1 was erroneous in that no qualification was made to -the statement as to “the law of the road.” 136 Ark. 31.

      D. G. Beauchamp, for appellee.
    The bill of exceptions did not contain all the evidence. Where there is no affirmative or inferential showing that all the evidence is contained in the bill of exceptions, the rulings of the court, etc., are presumed to be correct. 74 Ark. 551; 54 Ark. 159; 80 Ark. 74; 81 Ark. 327; 133 Ark. 105.
   Wood, J.

This is an action by the appellee against the appellant for damages alleged to have accrued to appellee by reason of the negligent and willful act of the appellant in driving his car against the appellee’s ear. The answer denied the allegations of the complaint. The appellant abstracts the testimony as follows:

J. A. Clark testified that tire time of day when the collision occurred was about fiye o’clock. Tbe sun was shining, and the defendant was going towards the sun, down the hill, and the plaintiff was going away from the sun, up hill. The defendant (appellant) testified that “the sun was a little bit bad about 5:30 in the afternoon, but I could see the street very well ahead. I could not see as well as if there were no sun in my face.” The witness was asked the following questions:

“Q. Weren’t you figuring on that as a defense until now — because the sun was shining in your face, and it was an accident? A. No sir. Q. Mr. Bratton told you that wouldn’t do, didn’t he? A. No sir, I don’t think he did. Q. Didn’t Mr. Bratton tell you since that time that the sun business wouldn’t work, or something to that effect, and you backed off of it? A. No sir; not especially. Q. Well, he said something about it, didn’t he? A. Well, he said something about it, yes sir. I hadn’t complained I couldn’t see the street; if I had, I would have stopped, because I’ll admit the sun does obstruct you some. Q. And you will further admit that you didn’t see this car until you were within five or six feet of it? A. Yes sir. Q. I’ll give you a foot difference. A. Yes sir.”

After setting out the above testimony, the bill of exceptions contains the following statement: ‘ This was all the testimony introduced in the trial of this cause with reference to the sun shining in the eyes of the defendant.” The bill of exceptions concluded as follows: “And now comes the defendant herein and presents this as its bill of exceptions herein to the judge of the court trying said above entitled cause, and prays that the same be by the said judge signed and approved, and the judge, after examination, doth sign and approve said bill of exceptions, containing only the excerpts of certain testimony and of certain witnesses, and doth order that the. same by the clerk be filed and made a part of the record herein. ’ ’ The bill of exceptions was signed by the trial judge. The official court stenographer certified that “the foregoing pages of typewritten matter, numbered 1 to 13, both inclusive, contain a full, true, perfect, correct and complete transcript of all of the testimony introduced in the trial of the above entitled cause with reference to the sun shining in the face of the defendant Edwards, and a full, true, perfect, correct and complete transcript of all of the instructions given in the trial of 'this cause. ’ ’

The fifth ground of the motion for a new trial is as follows: ‘ ‘ The court committed error in giving instruction No. 6, wherein the court told the jury that, if the sun was shining in defendant’s face and blinding him, it was defendant’s duty to stop his automobile, and that, if he failed to do so, it was negligence, and that for that reason could find against him.”

The sixth ground of the motion for a new trial is as follows: “Instruction No. 6, as given by the court, was not justified by the evidence .in the case and is not the law applicable thereto; said instruction attempts to point out a particular circumstance which did not occur and Which was not proved, and thereby mislead the jury; said instruction has no application to any part of the evidence offered by either party.”

The verdict and judgment were in favor of the appellee in the sum of $150,- from which judgment is this appeal.

The bill of exceptions does not show affirmatively or inferentially that it contains all the evidence. In the case of Abbott v. Kennedy, 133 Ark. 105-108, we said: “In order to make the error of the court appear, it is necessary that the appellant present here a bill of exceptions which shows either by express statement that it contains all the testimony that was adduced at the trial, or it must contain statements from which it appears ‘inferentially and by natural implication’ that it contains all the evidence. ’ ’ This rule has been adhered to by this court in numerous cases, and we believe has never been departed from. See cases cited in the above case and also the appellee’s brief.

The judgment is therefore correct, and it is affirmed.


author: Hart, J.,

text:
    North American Provision Company v. Fischer Lime & Cement Company.
    Opinion delivered March 2, 1925.
    1. Corporations — complaint—misdescription o f corporation.— ■The contention that a judgment against the Morris Packing Company, described in the complaint as an Illinois corporation, would not ¡bind the Morris Packing Company, a Maine Corporation, was untenable where the latter corporation was the only corporation of that name doing business in the State at the time, and service of summons was had on its agent.
    2. Corporations — place of organization of foreign corporation.— In a suit against a foreign corporation, it was immaterial in what State defendant was organized as a corporation, where it was sued and sérved as a foreign corporation, and the complaint advised it of the nature of the ¡action.
    3. Judgment — insufficient service — meritorious defense.— Where defendant had actual notice of the pendency of a suit against it, the contention that the judgment was defective for lack of service will not he considered on collateral attack unless a meritorious defense to the suit is shown.
    4. Fraudulent conveyances — bulk sales law. — Sale of the assets of a packing company, engaged in selling meats at wholesale held void as against creditors of seller for noncompliance with the Bulk Sales Law; the statute being comprehensive enough to include sales by wholesale merchants.
    Appealed from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.
    statement of facts.
    Fischer Lime & Cement Company, a foreign corporation, brought this suit in equity against the North American Provision Company, also a foreign corporation, doing business in Arkansas, to recover the sum of $1,352.08, alleged to be due it by tbe Morris Packing Company, whose property the defendant bought without complying with the requirements of our Bulk Sales law.
    It appears from the record that the Morris Packing Company, a foreign corporation, duly organized under the State of Maine, and authorized to do business in the State of Arkansas, was engaged in the business of selling at wholesale at Helena, Arkansas, various kinds of meat products and some canned goods. During the year 1919 it entered into a contract with D. M. Crawford & Company to erect a business building for it in Helena, Phillips County, Arkansas. Fischer Lime & Cement Company, a corporation doing business in the State of Tennessee, furnished certain materials which entered into the construction of said building. Fischer Lime & Cement Company first gave notice that it intended to file its lien on the property for the materials furnished, and the Morris Packing Company agreed to pay the account if no lien under the statute was filed. After the time for filing- the lien had expired, the Morris Packing Company refused to pay the account. On August 26,1922, Fischer Lime & Cement Company instituted an action in the circuit court against Morris Packing Company, to recover the sum of $1,425, alleged to be the amount due and unpaid for materials used in the construction of the building for Morris Packing Company in Helena, Arkansas.
    The complaint alleges that the plaintiff is a corporation organized under the laws of the State of Tennessee, and that the defendant, Morris Packing Company, is a corporation organized under the laws of the State of Illinois.
    In the summons the defendant is called Morris Packing Company. The return recites that it was served by delivering a true copy of the same to J. W. Somer-indyke, manager of the within-named Morris Packing Company. On May 16, 1923, judgment was rendered in favor of Fischer Lime & Cement Company against 'Morris Packing Company in the sum of $1,148.67.
    The judgment recites that the plaintiff appeared by its attorneys and the defendant by its attorney. In the meantime, on March 24, 1923, the North American Provision Company purchased the assets of ■ the Morris Packing Company, a Maine corporation, and no attempt was made to comply with the provisions of our Bulk Sales law. The value of the stock of merchandise so purchased by the North American Provision Company from the Morris Packing Company exceeded by several thousand dollars the liabilities of the Morris Packing Company.
    Morris Packing Company, an Illinois corporation, once did business in the State of Arkansas, but ceased to do business in this State during the year 1912. During the period of time involved in the transaction in this case the Morris Packing Company, a Maine corporation, was engaged in business in this State at Little Rock, Arkansas, and at Helena, Arkansas.
    The chancellor found the issues in favor of the plaintiff, and from a decree rendered in its favor against the defendant an appeal has been duly prosecuted to- this court.

      Rose, Hemingway, Cantrell & Loughborough, for appellant.
    The judgment obtained by appellee was against an Illinois corporation, whereas the Morris Packing Company involved here is a Maine corporation, and it is therefore not bound by the judgment, proper service not having been 'had. See Freeman on Judgments, § 45, and § 50 ; Black on Judgments, §§ "116 and 120; 4 Ark. 423; 75 Ark. 461; 123 Ark. 455; 101 Ark. 142; 24 Ark. 574; 6 Ark. 537; 5 Ark. 410; 7 Ark. 394; 105 Ark. 5; 9 Ark. 455; 4 Ark. 199 ; 42 Cab. 571; 37 dal. 346; 282 Fed. 811. No notice was given as required by ■ § 4870, O. & M. Digest, but still appellant is not .liable for the claim, as it is not one protected by the statute. See .148 Ark 173; 159 Ark 358; 131 Ark 248 ; 136 Ark 140. Statutes of this nature should he strictly construed. 101 S. K. 8; 203 S. W. 506; 235 S. W. 321; 112 S. E. 71; 224 Ill. App. 158; 144 Pae. 6.

      Owens & Ehrman, for appellee.
    The defect in seiwice complained of should have been reached by demurrer or answer in that proceeding Hawhins v. Simmons, 165 Ark. 461. Morris & Co. was sued as a foreign corporation, which-was sufficient. 152 Ark 442. The Bulk 'Sales law, as construed in 123 Ark. 285, is not limited to retail merchants. See 242 Ui. S. 470 and 157 N. "W. 1019. One who induces another .to refrain from filing a lien 'by promise of payment is liable on contract. 146 Ark. 539. .
   Hart, J.,

(after stating the facts). It is first sought to reverse the decree on the ground that the judgment obtained in the circuit court by the Fischer Lime & Cement Company was against Morris Packing Company, an Illinois corporation, and that, on this account, the Morris Packing Company, a Maine corporation, is not bound by the judgment.

In that case the defendant was named as the Morris Packing Company, and the summons was served on the duly authorized agent of the Morris Packing Company. It is true that the complaint alleges that the defendant, M,orris Packing Company, was an Illinois corporation, but this did not make any difference. The defendant was sued as the Morris Packing Company, and the Morris Packing Company of Maine was the only corporation of that name doing business in Arkansas at the time. The service of summons was had upon its duly authorized agent. Thus it will be seen that the defendant had notice of the suit, and should have interposed any defense it might have had to the action, notwithstanding it was alleged to be an Illinois corporation, when in fact it was a Maine corporation.

In the first place, it is immaterial in what State the defendant was organized as a- corporation. - It was sued and served as a foreign corporation, and the language of the- complaint apprised it of the nature of the action. Loose-Wiles Biscuit Co. v. Jolly, 152 Ark. 442.

In the second place, Morris Packing Company had actual notice of the pendency of the suit against it in the circuit court, and does not even now claim that it had any meritorious defense to the action. In so far as the present record discloses, there was no defense whatever to the suit. In such cases, a meritorious defense must be shown in order to obtain the relief prayed for. Renfroe v. Parmelee, 143 Ark. 547, and McDonald Land Co. v. Shapleigh Hardware Co., 163 Ark. 524.

Therefore the insistence of the defendant that the judgment in the circuit court against the Morris Packing Company was void because no service was had upon the defendant is of no avail to it in the present suit.

It is conceded by the counsel for the defendant that no attempt was made to comply with our Bulk Sales law when the defendant purchased the stock of merchandise of the Morris Packing Company, and that the property so purchased by it exceeded in value the liabilities of said company.

The sole reliance of counsel to reverse the decree on this ground is that the sale of its stock by a wholesale merchant does not come within the provisions of our Bulk Sales law. It will be remembered that the Morris Packing Company was engaged in selling at wholesale meat products and canned goods at Helena, Arkansas, when its stock of merchandise and other property was purchased by the defendant. It has been said that the practice of retail merchants in selling their stocks in bulk are the miost common source of fraud with which the courts have to deal, and that such statutes were passed for the protection of wholesale merchants. A sufficient answer to this is that wholesale merchants, by selling their stocks in bulk, could practice a fraud upon manufacturers and other wholesale merchants, who are their creditors, just as successfully as retail merchants could do in the sale of their stocks in bulk. After all, the language of the statute must be the test as to what class of merchants are embraced within its scope. It has been well said that, to determine the class of property included in Bulk Sales statutes, reference must be had to the language of the statute, which will be construed according to its common and ordinary meaning.

Thus, in Connecticut Steam Brown Stone Co. v. Lewis (Conn.), 85 Atl. 534, 45 L. R. A. (N. S.) 495, it was held that a sale of his tools and stock in trade by one who buys stone in the rough and cuts and dresses it to fill orders is not within the Connecticut statute. The act under consideration in that case provides that, when any person who makes it his business to buy commodities and sell the same in small quantities for a profit shall, at a single transaction, sell or deliver the whole or a large part of his stock in trade, such sale shall be void against his creditors, unless the provisions of the act are complied with. The court held that the act in terms applies only to sales in bulk by persons who make it a business to buy and sell in small quantities the commodities which they have purchased. Other States make their statutes on the subject apply only to the sale in bulk by retail merchants of their stock of merchandise.

. The language of our statute provides that the sale in bulk of any part of the whole of a stock or merchandise or merchandise and the fixtures pertaining to the conduct of any such business, otherwise than in the ordinary course of trade, shall be void as against the creditors of the seller, unless the terms of the act are complied with. Section 4870 of Orawf ord & Moses ’ Digest, and act 374 of the General Acts of 1923. See General Acts of 1923, p. 340.

In this connection it may be stated that the only change made by the amendatory act is to prohibit the mortgage as well as the sale or transfer in bulk of the class of property embraced in the act without complying with the terms thereof.

Now it will be seen that the language of the act in its common and usual acceptation includes wholesale and retail merchants alike. The language is sufficiently comprehensive to show that the object of the act was not only to protect wholesale merchants against fraudulent sales by retail merchants, but also to protect manufacturers and wholesale merchants against fraudulent sales by wholesale merchants. Grant v. Walsh (Wash. ), 78 Pac. 786; and Niklaus v. Lessenhop (Neb.), 157 N. W. 1019.

It follows that the decree of the chancellor was correct, and must be affirmed.