text:
    St. Louis-San Francisco Railway Co. v. Allison.
    Opinion delivered April 9, 1923.
    1. Carriers — loss of freight — who may sue. — -In an action by a shipper against a carrier to recover damages for failure to deliver freight shipped to consignor’s order, as the title never passed from the consignor, he was entitled to recover the value of the shipment.
    2. Carriers — failure to deliver freight — presumption.—Where a shipper proves that a shipment of freight was never delivered at the destination designated in the bill of lading, the presumption arises that it was lost by reason of the negligence of the carrier, and the burden was on the initial carrier to show to 'the contrary.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brissolara, Judge;
    affirmed.

      W. F. Evans, and Warner, Hardin & Warner, for appellant.
    Notwithstanding shipper consigned shipment to himself, or rather his company, the invoice showed to whom it had been sold, and it was not intended to be a shipper’s order shipment, the lumber being sold on credit and no draft attached to the bill of lading, and the title passed to the purchaser, the Lang-Body Company, upon delivery to the carrier at Garvin, Oklahoma, and plaintiff cannot maintain action for failure to deliver. 121 Ark. 284; 115 Ark. 221; 112 Ark. 165; 111 Ark. 521; 105 Ark. 53. Moreover, the bill of lading wias sent to the Lang-Body Company, the purchaser, and amounted to delivery, and the title passed. 120 Ark. 491; 74 Ark. 482. Court erred in refusing’ to direct a verdict for defendant. Court erred also in giving instruction numbered 2, requested by plaintiff, and in refusing to give defendant’s requested instruction numbered 2. The court was requested by this instruction 2 to submit to the jury the question of whether or not the sale was conditional, and -instruction 1 ignored the issue entirely. 93 Ark. 564; 137 Ark. 530; 148 Ark. 132. The question of intent of the parties should have been submitted to the jury. 82 Ark. 86; 106 Ark. 571; 126 Ark. 369; 144 Ark. 278. No negligence of carrier in handling the shipment of lumber, and court erred in not giving its requested instruction 3.

      A. A. McDonald, for appellee.
    .Case should -be dismissed for failure to comply with Eule 9. The case -of U. S. Express Go. v. Burdick, 121 Ark. 284, not in point. While the invoice shows “Sold to Lang-Body Co., Cleveland, Ohio, shipped to Allison Hardwood Lumber Co., West 106 St., Cleveland, Ohio,” the bill of lading shows “Consigned Allison Hardwood Lumber Co., destination Cleveland, Ohio,” showing that shipper was to control the shipment, and that it was sold to be delivered at destination. Not having been delivered, it was the property of plaintiff, 115 Ark. 221 and 120 Ark. 487 distinguished. Instruction No. 2 of appellant was properly refused, there being no evidence upon which it could be based. Instruction No. 1 was a correct declaration of the law. 1 Eoberts, Federal Liabilities of Carriers, 572, par. 328; II. S. Compiled Statutes 1918, Compact Edition, par. 8604-A. A clear case of negligence was shown, but, the failure to deliver was sufficient to show negligence.

      W. F. Evans, Warner, Hardin & Warner, in reply.
    Additional abstract filed, notwithstanding we think our abstract was a compliance with Eule 9. St. L. & S. F. By. Go., v. Newmam, 105 Ark. 63, holds too much of record not to be copied.
   Wood, J.

The appellee instituted this action against the appellant to recover the sum of $2,789.95 for the al.leged failure of appellant to deliver a carload of ash lumber which the appellee alleged he shipped over appellant’s line from Garvin, Oklahoma, on July 21, 1920, to be delivered to Lang-Body Company at West 106 Street, Cleveland, Ohio. The appellant denied all the material allegations of the complaint.

Allison testified that a carload of lumber was sold by the Bacon Lumber Company, a corporation of Cleveland, Ohio, the agent of the appellee, to the. Lang-Body ■Company of Cleveland, Ohio. The sale was evidenced by a written order, that he shipped the carload of lumber ■on July 21, 1920. The lumber was consigned to the appellee at Cleveland, Ohio, and was described in the bill of lading as “one car of ash lumber,” with a notation thereon following the description “W. 106 St. N. Y. C. delivery.” In the next day or two Allison mailed the bill ■of lading to the Lang-Body Company, and on the same ■day he billed out another car, which was delivered within three weeks, while the car is controversy was never delivered. The invoice price of the lumber, $2,789.95, was its fair market price. The freight and war tax amounted to $227.96. The witness then testified as to the efforts he made, after ascertaining the car had not been delivered, to have the same delivered to the Lang-Body Company. He wrote to the Lang-Bodv Company and the Bacon Lumber Company, requesting them to get in touch with the railroad company and have the car delivered. He also wrote the agent of the New York Central Railroad Company requesting the delivery of the car. He was advised on February 8, 1921, that the car was in storage at Cleveland, Ohio. He also testified that he requested the appellant to trace the car something like 30 ■or 60 days after the car was shipped.

C. D. Mowen, who was agent of the traffic bureau for the cities of Van Burén and Fort Smith, testified that he was familiar with the schedules and time necessary to ship freights to different points, and that the time reasonably necessary to carry the car from Garvin, Oklahoma, to Cleveland, Ohio, should not exceed nine days.

There was testimony on behalf of the appellee tending to show the efforts put forth by.the Bacon Lumber Company and also the Lang-Body Company, after the car failed to reach its destination within a reasonable time, to locate and have the same delivered. It was shown by the freight agent of the New York Central at Cleveland, Ohio, that that road did not handle the car in controversy. It received a wire from-the appellee as early as August 20, 1920, advising that the car in controversy should go to the Lang-Body Company. Lang testified, among other things, that the Lang-Body Company, after receiving the bill of lading for the car on August 3, 1920, made demand upon the railroad companies for the delivery of the car in controversy, and the same was not delivered, and thereafter it endeavored several times to have the railroad companies trace the car as late as Nov. 18, 1920, which they promised to do, but the car was never located.

There was testimony in the record showing that as late as January 21,1921, the appellee was endeavoring to have the car located. The other testimony relates to the efforts that the appellee put forth to have the ear of lumber sold after ascertaining that it was in storage in Cleveland. These efforts failed, for, as one of the witnesses testified, it was found that the car was not worth the freight, cartage and storage charges. It was shown by the testimony that the “NYC delivery” meant “New York Central delivery.” It was shown on the part of the appellant that the car in controversy was received by the General Storage Company in Cleveland, Ohio, on October 5, 1920, for account of the Big Four Bailroad Company. Notices were sent to the appellee.at Cleveland and also at Garvin, Oklahoma, and no communication was received from the appellee pertaining to the car. The car was sold on Mav 20, 1921. at a total loss to the storage company amounting to $196.25.

One of the witnesses for the appellant testified that he was the disposition clerk of the C. O. C. & St. L. Ey. Co. at Linndale, Ohio, in September, 1920, and that the car in 'controversy arrived at Linndale September 13, 1920, consigned to the appellee, and carded “Hold for disposition on arrival account. Consignee unknown.” Eost-card notice of the arrival of the car was sent to the appellee. The car was at the Linndale yards from September 14 until September 29, and was reported daily.

Another witness for the appellant testified that he was the freight agent of C. C. C. & St. L. Ey. Co. at Cleveland, Ohio, and was familiar with the tracks serving the Lang-Body Company at Cleveland. It was on property owned by that company, and was reached through a New York Central industrial track about a mile long, which served a number of industries south of W. 106tb Street. These industrial companies were served through the lead track by private sidings. The Lang-Body Company was one of them. When cars are consigned to it, they are placed on a private track of that company. Cars could not be placed on the Lang-Body Company’s track or any other private track on the New York Central unless consigned to a firm served by those particular tracks. There is no team track on the New York Central known as W. 106th Street. The car in controversy was received at Linndale yard, which was the outer yard for Cleveland station of the Big Four, ón September 13, 1920. The waybill on the car showed that it was consigned to the appellee. A postal notice, as well as a letter of September 17, was sent to the consignee asking for disposition. On September 23 report was made showing the car on hand, undelivered. The car was then put in general storage, and the appellee was notified by letter of September 27 of that fact. These witnesses testified that they had no knowledge of any inquiries from the Lang-Body Company, or the Bacon or Allison companies, regarding the car while it was held at Linndale.

In rebuttal, Allison testified that he shipped another car of lumber from Garvin, Oklahoma, on the same date, consigned to the same party in the same way as the car in question, and that this car had been delivered within three weeks.

Among other instructions the court, at the request of the appellee, gave the following:

“If you find from a preponderance of the testimony that the defendant railroad company accepted from the plaintiff the car of ash lumber in controversy, at its station at Garvin, Oklahoma, for shipment to Allison Hardwood Lumber Company at West 106th Street, Cleveland, Ohio, New York Central delivery, that is, to be delivered by the defendant company to connecting carriers, by them delivered to the New York Central Railroad for delivery at said address at Cleveland, Ohio, and that said defendant company issued to plaintiff its receipt, or bill of lading, showing such a contract of delivery, and that said car of ash lumber was not delivered as agreed in said contract or bill of lading, your verdict should be for the plaintiff for the value of said car of lumber, less the freight charges from Garvin, Oklahoma, to said address at Cleveland, Ohio.”

The court refused appellant’s prayer for instruction as follows:

“If you find from the evidence that plaintiff delivered to the defendant railroad company at Garvin, Oklahoma, the car of lumber involved in this case, pursuant to an order from the Lang-Body Company, to ship said car of lumber to Cleveland, Ohio, and that the sale of said lumber by plaintiff to said Lang-Body Company was unconditional, then the court charges you that the delivery of said lumber by plaintiff to the defendant was in effect the delivery to the Lang-Bodv Company, and the plaintiff is not entitled to maintain this action to recover the alleged value of said shipment.”

The appellant duly excepted to the rulings of the court in granting appellee’s prayer for instructions and in refusing its prayer. The jury returned a verdict in favor of the appellee in the sum of $2,795.98. Judgment was entered in favor of the appellee for that sum, from which is this appeal.

The appellant contends, first, that the title to the lumber passed to the Lang-Body Company upon delivery to the appellant at G-arvin, Okahoma, for transportation, and that therefore the appellee cannot maintain this action. Appellant cites to support his contention certain of our cases, among them U. S. Express Co. v. Rhea & Co., 121 Ark. 284, in which we said: “The law is well settled that the delivery of goods to a common carrier, when made in pursuance of an order to ship, is, in effect, a delivery to the consignee, and the consignor thereafter has neither the title nor the right to the possession of the shipment, nor to maintain an action for damage thereto.” In the above case the action was for damage for the loss of one hundred crates of strawberries. The berries were sold f. o. b. Van Burén, the point of origin of the shipment, and were shipped in the purchaser’s name direct to the purchaser. But the undisputed testimony in the case at bar shows that the lumber in controversy was purchased by the appellee at 'Garvin, Oklahoma, and by it sold to the Lang-Body Company at Garvin, Oklahoma, to be delivered by the apnellee at Cleveland, Ohio. The testimony of the appellee, which is undisputed, and the bill of lading which evidenced the contract of shipment, shows that the lumber was consigned to the appellee at Cleveland, Ohio, and not to Lang-Body Company. Clearly the undisputed evidence here shows that the sale was .conditional, and was not to be complete until the lumber was delivered by the appellee to Lang-Body Company at Cleveland, Ohio. Therefore, while counsel for appellant quote and rely upon sound principles of law announced by this court, the law declared in these cases has no application to the facts of this record.

Since the bill of lading shows that the lumber was consigned to the appellee at Cleveland, and since the order for the lumber and the undisputed testimony shows that the sale was not to be complete until the lumber was delivered by the appellee to the Lang-Body Company at Cleveland, Ohio, we conclude that the trial court was correct in so holding. The lumber here was shipped to the appellee and was. subject to its order, and it was the property of the appellee until the same was delivered by the appellee to Lang-Body Company at W. 106th Street, Cleveland, Ohio, which delivery was never made. See Vehicle Supply Co. v. McInturf, 120 Ark. 491. There is no testimony to warrant the inference that the parties intended the sale to be completed before the delivery of the lumber at W. 106th Street, Cleveland, Ohio. While the bill of lading was sent to the purchaser, this was not for the purpose of passing title to the lumber, but to enable the purchaser to identify the car and procure a delivery thereof.

As we view the evidence, there was no issue for the jury as to what the intention of the parties was, and therefore the court did not err in refusing to submit such an issue to the jury. The case of Barrett v. St. L. I. M. & S. Ry. Co., 151 Ark. 215, upon which the appellant relies, is not applicable, because that case is clearly differentiated from this one on the facts. There the plaintiff delivered property to a carrier to be transported to a third person, pursuant to a contract of sale, and we held that it was a question for the jury, under the evidence in that case, as to whether the transportation should be completed and delivery made to the consignee before the sale was consummated. But here the property was not to be transported to a third party as the consignee, but the consignee was the appellee. See John Meeter & Sons v. Paragould Wholesale Grocery Co., ante p. 128. The order itself for the goods and the testimony of Lang show that the freight was to be paid by the appellee, and the prices were based on condition of delivery at Cleveland. Furthermore, the appellee, as the only party to the contract of shipment, is entitled to maintain this action because, as we have seen, there was no testimony to warrant an inference that the title to the lumber had passed from the appellee to the Lang-Body Company. W. & O. V. Ry. Co. v. So. Lbr. Co., 115 Ark. 221, 224.

The appellant contends that there was no negligence upon the part of the carrier in handling the shipment of lumber. The testimony bearing upon this issue is fully set forth above, and it clearly shows that the issue of negligence was one for the jury. The instructions asked by the appellant on this issue were argumentative, and the court did not err in refusing to give them. The court correctly submitted the issue under instruction No. 7. (Reporter set forth in note). The jury might have found from the evidence that, on the day the car in controversy was shipped, another car was shipped under bill of lading worded in precisely the same manner, and that tlks ear was delivered to the Lang-Body Company within three weeks. Undoubtedly the jury might have found from the testimony that, if the car in controversy had been delivered by the appellant through its connecting carriers to W. 106th Street, Cleveland, Ohio, as the contract of shipment required, it would have been delivered to and received by the Lang-Body Company. The testimony shows that the sidetrack on the property of the Lang-Body Company was reached through the New York Central industrial lead track. If the car in controversy had been delivered at W. 106th Street, Cleveland, Ohio, as provided in the bill of lading, it would have been delivered as the other ear was under similar contract of shipment. At least the jury might have so found. When the appellee proved that-the car of lumber had not been delivered to W. 106th Street, Clevland, Ohio, as required by the contract, the presumption was raised that it was lost by reason of the negligence of the appellant, or its agents, and the burden was on appellant .to show to the contrary. Boberts on Federal Liability of Carriers, p. 572, sec. 328. This the appellant did not do to the satisfaction of the jury,- and its verdict on that issue is conclusive, since there was testimony to warrant it.

We find no error in the rulings of the court. The judgment is therefore correct, and it is affirmed.

       No. 7. The court charges you that if the indorsement on the bill of lading in this case, “West 106 Street NYC delivery,” was not sufficiently definite to enable the delivering carrier to deliver said ear at the place of business of the Lang-Body Company by the exercise of ordinary care, then the failure of the delivering carrier to deliver same' at the place of business of the said Lang-Body Company would not entitle the plaintiff to recover herein on account thereof, unless they were given sufficient notice as to place of delivery. (Rep.)


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Burgess v. Johnson County.
    Opinion delivered April 9, 1923.
    1. Counties — liability for fees of local registrars. — Under act 149 of Acts 1917, providing that local registrars shall annually certify, the number of births and deaths properly registered, with the amount due him at the rate specified in the act, and that “said amount shall be allowed as 'other claims against the county” held that the act intended to make the services rendered by local registrars a county purpose, and to make the county liable therefor.
    2. Counties — allowance of claim — necessity of appropriation. — Under Crawford & Moses’ Dig., § 2279, it is the duty of the county court to “audit, settle and direct the payment of all demands against the county,” and of the clerk to issue a warrant on such allowance, whether there is an appropriation to pay such demand or not.
    Appeal from Johnson Circuit Court; A. B. Priddy, Judge;
    reversed.

      Coleman, Robinson & House, for appellant.
    The ‘claim of the registrar in Johnson County for compensation for births and deaths registered during 1921 was in accordance with law, and the court erred in not allowing it. Claim is valid, under act 149, Acts' of 1917, amending' act of Feb. 25, 1913. 125 Ark. 350, and 219 S. W. (Ark.) 9 were decided before law amended. Under the law as amended there can be no doubt about the liability of the county. 44 Ark. 560 ; 58 Ark. 113;. 55 Ark. 419; 60 Ark. 508; 57 Ark. 487. The fact that no appropriation was made is no defense to allowance of claim as a proper charge against the county. 22 Ark. 595; 26 Ark. 461; 30 Ark. 578; 72 Ark. 27; 98 Ark. 299. Warrant should have been issued in payment. 28 Ark. 359.
    No brief for appellee.
   Wood, J.

Dr. M. E. Burgess, a regular licensed physician of Johnson County, was appointed local registrar in accordance with the provisions of act 149 of the Acts of 1917. During the year 1921 Dr. Burgess, in accordance with the act, reported seventy-four births and twelve deaths, at 25 cts. each, making a total of $21.50. The State Registrar of Vital Statistics certified the report to the county treasurer, in accordance with the act. Dr. Burgess presented his claim to the county court, which disallowed the same. Thereupon he appealed to the circuit court, and that court also refused to allow the claim, and he appeals to this court.

In October, 1916, this court, in Fort Smith District of Sebastian County v. Eberle, 125 Ark. 350, held that local registrars appointed under act 96 of the Acts of 1913, creating the State Board of Health and Bureau of Vital Statistics, were State rather than county officers, since, under that act, they were appointed by the State Registrar without the consent or approval of county authority, and that their services could not be properly regarded a county purpose within the meaning of the constitutional provision giving county courts exclusive jurisdiction in all matters relating to the disbursement of money for county purposes, etc. The Legislature of 1917 passed act 149 amending sections 9 and 10 of act 96 of the Acts of 1913, so that the law now provides that the “State Registrar, with the assistance of the county judge in each county, shall appoint a local registrar in each registration district,” and the amounts payable to the registrars under the act are payable annually by the treasurer of the county in which the registration district is located. It is further provided that each “local registrar, with the counter-signature of the State Registrar, shall annually certify to the county and probate clerk of his respective county the number of births and deaths properly registered, with the ‘amount due him at the rate herein, and said amount shall be allowed as other claims against the county.”

The amendment to act 96 of the Acts of 1913 by act 149 of the Acts of 1917, in the particulars noted, was doubtless for the purpose of making local registrars, appointed in the manner indicated, officers or employees of the county, rather than State officers, so as to make counties liable for their compensation rather than the State, and to bring such registrars, and their services rendered, within the jurisdiction of the county court, and thereby to remove the objections that were held by this court to render the act of 1913 unconstitutional. In the case of Carroll County v. Poynor, 142 Ark. 546, the claim of Dr. Poynor, a local registrar, arose under act 96 of the Acts of 1913, before the same was amended by act 149 of the Acts of 1917, supra. This court handed down its opinion March 8, 1920, in which, following the decision in Fort Smith District v. Eberle, supra, we said: “As we have seen, the claim of appellee is not a debt against Carroll County, and, under the provision of the Constitution just referred to, the county court would not be authorized to audit and allow a claim which was not authorized under the law. It is true the Legislature of 1917 amended the general act above referred to so as to provide for the payment by the respective pounties for the services of the local registrars. See Acts of 1917, vol. 1, p. 799. That act, however, does not purport to be retroactive in its operation, and therefore has no application whatever to the present case.”

' The claim now under consideration arose after act 149 of the Acts of 1917 was enacted, and we hold that the claim of the appellee under act 96 of the Acts of 1913, supra, as amended by act 149 of the Acts of 1917, supra, is a valid claim against the county. It is clear that the Legislature of 1917 intended to make the services rendered by local registrars, as therein indicated, a county purpose, and to make the county liable therefor. The service, under the amendment of 1917, is performed by an employee of the county, rather than the State. The appellant performed services for the county, and the county court is expressly required to allow such claims “as other claims against the county.”

In Logan County v. Trimm, 57 Ark. 487, we said: “Three things, must be found to concur before the county court is authorized to allow a claim against a county in favor of an officer for fees: 1st. There must be specific statutory authority to the officer to malee a charge for the services rendered. 2nd. He must be required by the statute, or by the rules of practice or order of the court, to perform the service. 3rd. The statute must indicate expressly or by fair intendment the intention to permit the fee allowed by the statute for the service to be charged against the county.” The claim of the appellant meets these requirements. The trial court gave, as reasons for its judgment in refusing to allow the claim, the following: “Because said claim is not a charge against the general revenues of the county # * *. There was no appropriation made by the quorum court out of which to pay said claim.” These reasons are unsound. Under the law it is the duty of the county court to “audit, settle and direct the payment of all demands against the county.” Sec. 2279, C. & M. Digest. The appellant had the same right to have his claim against the county allowed and a county warrant issued thereon, as other creditors to have their just and legal claims allowed and warrants issued for such claims. See Worthen v. Roots, 34 Ark. 356; St. Louis Nat. Bank v. Marion County, 72 Ark. 27.

The judgment of the circuit court is therefore reversed, and the cause will be remanded, with directions to enter a judgment directing the county court to allow the appellant’s claim.


author: Hart, J.,

text:
    Beloate v. Hare.
    Opinion delivered April 9, 1923.
    Guardian and ward — jurisdiction op probate court. — One who has taken care of a minor may not sue her guardian in the probate' court for an amount alleged to be due for the minor’s care and support.
    Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;
    reversed.
    STATEMENT OF FACTS.
    Georgie Hare filed a petition in the probate court for a monthly allowance for taking care of Margaret Fry, a minor. In her petition she alleges that she is the mother of Margaret Fry, whose father died on the 17th day of November, 1915, and that W. E. Beloate was duly' appointed guardian of her estate in December of that year; that said minor has, during all this time, been in her care and custody, and is now about nine years of age; that she has expended a great deal of money in taking care of said minor, and that the guardian of said minor has in his hands about $537.07 belonging to her.
    The petition of Georgie Hare was filed in the probate court on the 19th day of April, 1921, and the probate court made an order allowing her $5 per month from the 11th day of November, 1915.
    The guardian prayed and was duly allowed an appeal to the 'circuit court. The circuit court overruled a demurrer of the guardian to the petition of Georgie Hare, and the action of the probate court in making the allowance to her was in all things approved. The guardian has duly prosecuted an appeal to this court.

      W. E. Beloate, for appellant.
    The probate court had no jurisdiction of the claim. Greswell v. Matthews, 52 Ark. 87. Guardian not liable in any event. Gonlin v. Beavers, 19 Ark. 622. Case should be reversed and dismissed.

      Smith ■& Gibson, for appellee.
    Appeal should 'be dismissed for noneompliance with Buie 9. Judgment appealed from not a final order. Melton v. St. L. etc. By. Go., 99 Ark. 433, 139 S. W, 289. Greswell v. Matthews, 52 Ark. 87, not controlling herein, and appellee entitled to the relief under § 91, Crawford & Moses’ Digest.
   Hart, J.,

(after stating the facts). The circuit court was wrong. The order complained of related to a matter that the probate court could not take cognizance of or consider, and therefore it erred in making the allowance.

The effect of the proceeding was to sue the guardian in the probate court for taking care of the minor. This the mother could not do. It is the duty of the probate court to make the necessary appropriations of money or personal estate for the maintenance and education of the minor where this can be done out of the minor’s estate; but a person taking care of the minor may not sue the guardian in the probate court for an amount alleged to be due him for the care and support of the minor. Greswell v. Matthews, 52 Ark. 87.

It follows that the judgment will be reversed and the cause remanded to the circuit court, with directions to dismiss the petition of Georgie Hare for want of jurisdiction.


author: Hart, J., Hart, J.

text:
    Caldcleugh v. Caldcleugh.
    Opinion delivered April 9, 1923.
    1. Fraud- — undue influence. — -In determining whether, undue influence has been exerted upon a person, all the surrounding circumstances which might make the person susceptible and yielding are to be considered, as undue influence reaches every case where influence is acquired and abused, or where confidence is reposed and'betrayed.
    2. Fraud — improvident conveyance.- — Where a widow, while overcome with grief and when she was staying with a brother of her deceased husband, a man of business experience, in whom she had great confidence, without being informed as to her right to a half interest in her husband’s lands, conveyed her interest in 326 acres of land in consideration of a conveyance to her by the heirs of 80 acres of land, in which, without her knowledge, deceased’s mother had a life estate, held that the execution of her conveyance was procured by undue influence.
    3. Compromise and settlement — validity.—Where a widow settled with the heirs of her husband by -accepting a substantial portion of his personal property, in consideration of the heirs paying all of decedent’s debts, the amount of his debts and the value of his personal property being unknown, a finding of the chancellor that the settlement was not improvident will be sustained, though it afterwards turned out that the personal property was largely in excess of the debts owed by the husband.
    4. Homestead — -abandonment.—Where the owner of a homestead in removing therefrom had an unqualified intention to preserve it as a homestead and to return to it, his removal will not result in an abandonment.
    5. Equity — motion to withdraw submission — laches.—A- motion to withdraw the submission of a case for the purpose of rebutting certain testimony was properly denied where appellant waited more than a year after the taking of the deposition sought to he rebutted before making the motion.
    Appeal from Asbley Chancery Court; E. G. Hammock, Chancellor;
    reversed in part.
    STATEMENT OE FACTS.
    On April 26, 1920, Carrie Caldcleugh brought suit in equity -against A. C. Caldcleugh,' H. L. Caldcleugh, Albertine Price and Nancy Ward to cancel a deed which she had executed in favor of all the' defendants except Nancy Ward, on the ground, that it had been obtained by undue influence, and also to set aside a settlement of her rights in the personal property of her deceased husband.
    Hogan Caldcleugh died intestate and without children. He left surviving him his widow, Carrie Caldcleugh, and his mother, Nancy Ward, his brothers, A. C. Caldcleugh and H. L. Caldcleugh, and Albertine Price, as his sole heirs at law. His heirs at law defended the action of the widow on the ground that they had entered into a fair settlement of their rights in his property, and that this had been consummated by the execution of proper deeds to the realty and a bill of sale of the personalty.
    Carrie Caldcleugh was a witness for herself. According to her testimony, she was thirty-three years of age, and married Hogan Caldcleugh on March 17, 1918. Her husband died March 5, 1920, intestate and without issue, owning the real and personal property involved in this lawsuit. At the time of his death he owned 406 acres of land and a lot of personal property, consisting of cotton, mules, cows, hogs, farming utensils, and money. She helped him to accumulate all the land, except eighty acres. Her husband had a homestead in eighty acres of the land, but was not living on it when he died. Her husband died on March 5, 1920, and on the 8th of March, 1920, she executed to Harper L. Caldcleugh and his brother and sister a deed to all of her interest in her husband’s land except eighty acres. The heirs at law of her deceased husband on the next clay executed to her a deed conveying their interest in the eighty acres which had been reserved from her deed to them. Harper Caldcleugh was a man of experience, and she stayed at his house after the death of her husband. In a short time she found out that the mother of her deceased husband had a life interest in half of the eighty acres which had been conveyed to her by the other heirs of her deceased husband, and that the settlement which had been made with her was improvident. She was staying at the home of Harper Caldcleugh at the time of. her husband’s death, and, being overcome with grief at the- death of her husband, relied upon him to make a fair settlement with her.
    According to the testimony of Harper Caldcleugh, his brother Hogan owed $'5,500 at the time of his death, and he assumed and paid all the debts of his deceased brother. He fully explained to his brother’s widow her rights in his property, and she accepted the settlement in question in this -ease, because it was the division of the property suggested by her husband in his lifetime.
    Other witnesses testified that the plain lili told them that she had received a division of the land which had been suggested by her husband in his lifetime.
    Dr. Gr. W. Fletcher, a merchant and practicing physician, was present at the settlement and assisted in making it. According to his testimony, he told the widow that she was deeding away all of her interest in the- 320 acres of land to the heirs-at-law of her deceased husband, and that they were deeding 80 acres to her. He told her that she could get more if she went to law. She then executed the deed to the heirs-at-law, and on the next day they executed a deed to their interest in the 80 acres to her. No coercion, inducement, or undue influence was used by any person to get the widow to sign the deed. In a few days thereafter they also readied an agreement about the personal property, and she agreed to take certain personal property if Harper Caldcleugh would pay all the debts of the decedent. She then executed a bill of sale as follows:
    “Montrose, Ark., March 16, 1920.
    “For and in consideration of H. L. Caldcleugh’s paying all H. C. Caldcleugh’s debts, and giving me the property listed on this, mules, Sam and Maggie, and paying me in cash $300, I deed away all my interest in all other personal property to said H. L. Caldcleugh of whatever nature.
    “Carrie Caldcleugh.”

      It was shown that the debts of the decedent'amounted to $5,500, and that his personal property aggregated something over $9,000. The personal property received by the widow consisted of two mules, one horse, two wagons, a bnggy, saddle, four cows and calves, a few plows, and $300 in money. She did not get any of the cotton on hand at all.
    Other evidence will be stated or referred to in the opinion.
    The chancellor set aside the deed executed, by the widow on the ground that it was executed through mis-' take and undue influence. He held that she was not entitled' to have the settlement of the personalty set aside. He also held that she was not entitled to a homestead in any of his, land, but was entitled to an undivided one-half interest in fee in all his land as her dower.
    A-decree was entered in accordance with the findings of the chancellor, and to reverse that decree the defendants have duly prosecuted an appeal to this court.
    The plaintiff has taken a cross-appeal.

      Geo. Norman and U. J. Cone, for appellants.
    Actionable fraud was neither sufficiently pleaded or proved to warrant the setting aside of the settlement made and cancellation of the deeds dividing the lands of the estate. 20 Cyc. 13, 35, 56, 86; 13 C. J. 382, note 279-1); 71 Ark. 305; 38 Ark. 334; 74 Ark. 46; 73 Ark. 547; 11-Ark. 58; 60 Ark. 387;' 108 Ark. 343; 45 Ark. 284; 46 Ark. 245; 60 Ark. 281; 101 Ark. 95; 99 Ark. 438; 97 Ark. 15. The facts must be pleaded and proved to a reasonable degree of certainty. 10 Stand. Ene. Proc. 53. 20 Cyc. 13; 10 Stand. Ene. Proc. 57; 26 C. J. 1207, note 88; 95 Ark. 523; 95 Ark. 375. The contract of settlement was not induced by such misrepresentations that equity will refuse to enforce or cancel it. 95 Ark. 523; 11 Ark. 58; 31 Ark. 170; 47 Ark. 148; 83 Ark. 403; 95 Ark. 131; 74 Ark. 231; '22 Ark. 184; 77 Ark. 335. It was a family -settlement, and should be adhered to. 15 Ark. 51; 15 Ark. 275; 102 Ark. 232; 74 Ark. 231; 18 C. J. 887, sec. 157,. note 84; 107 Ark. 614; 48 Ark. 93. They are looked upon with peculiar favor and given liberal construction. 18 C. J."888, sec. 158, note 92; 41 Ark. 270; 64 Ark. 19; 84 Ark. 610; 102 Ark. 659. Proof insufficient to warrant setting aside settlement on ground of mistake. Clark’s El. Law, 170, sec. 132; 15 Ark. 275; 101 Ark. 461; 108 Ark. 503; 132 Ark. 227; 14 Ark. 482. Court erred in refusing to admit evidence offered. 55 Ark. 163; 37 Ark. 398; 37 Ark. 571; 30 Ark. 313; 32 Ark. 585; Winn v. State, 43 Ark. 151. Discretion abused. 38 Cyc. 1363 N. 84,1365 N. 97, 1352-3. Proper rule. 1 Thompson Trials, sec. 346, 348; 38 Cyc. 1357-8-9, 1361, 1365-6, 1450, 1454, 21 C. J. 23, N. 1, N. 8; 229 U. S. 530. Duty of court as to amendments. 21 C. J. 580, N. 712; 69 N. E. 696, 32 Ind. App. 281; 16 Am. Dig. Dec. Ed. 546; § 4206, Crawford.& Moses’ Digest; 31 Cyc. 360-1, 367, 370, 372, 373, 426; 8 Stand. Proc. 488. Must be heard on merits. 38 Cyc. 1296 N. 79, 1361-2 N. 64. Court erred in refusing to allow withdrawal of submission and taking of further testimony.

      B. W. Wilson and Compere <& Compere, for appellee.
    The chancellor’s finding that the settlement was procured through 'undue influence should be upheld. 237 S. W. 703. The widow was overreached and imposed upon, and there was no such family settlement as the law favors. 107 Ark. 615; 85 Ark. 363, 2 Pom. Eq. § 956; 13 C. J. 366, sec. 239; Pom. Eq. 1748-9-50, § 956; 75 Ark. 240; 2 Pom. Eq. 849, 948, 951; Parker v. Hill, 85 Ark. 363; 10 E. C. L. 310, sec. 52, 312, sec. 55. Mistake . relieved against. 75 Ark. 240; 69 Ar. 406; 13 C. J. 366-B; 39 Cyc. 1211-4, 1212-5; 86 Ark. 460. Appellee was the widow of Hogan Caldcleugh, and filed suit after she had been fraudulently stripped of all property belonging to her as such, and within less than two months after death of her husband, March 4, 1920, and ample time was given for the taking of all testimony. Taking of testimony was ordered finished within 30 days after May, 1921, and defendant had taken no testimony after December, 1920. 241 S. W. 21; 21 C. J. 582, sec. 717. Burden on appellants to show appellee’s marriage illegal. 131 Ark. 225, 18 R. C. L. 417. On cross-appeal, widow was entitled to homestead. 134 Ark. 291; 134 Ark. 519; 130 Ark. 481. Burden on appellants is to show homestead abandoned. 100 Ark. 399.
   Hart, J.,

(after stating the facts). We do not think that the chancellor erred in holding that the deed of the widow to the heirs at law of her deceased husband was procured by undue influence on their part. Undue influence has a broad field to work upon in the condition of the person influenced. All the surrounding circumstances which might make him susceptible and yielding are to be .considered. The doctrine of equity concerning undue influence reaches every case “where influence is acquired and abused or where confidence is reposed and betrayed. ’ ’

In the instant case the undisputed evidence shows that Hogan Caldcleugh died without issue, owning 406 acres of land. . His personal property was sufficient to pay his debts. Having died without children, his widow was entitled to one-half of his real estate. Crawford & Moses’ Digest, § 3536.

It is true that Harper Caldcleugh and Dr. Fletcher testified that no coercion or undue influence was exercised to cause her to execute the deed, but, when the surrounding circumstances are considered, we are persuaded that such was not the case. Dr. Fletcher admits that he told her that she could get a greater interest in her husband’s estate by going to law. The settlement was made and the deed was executed by the widow three days after her husband’s death. She was overcome with grief at the time, and naturally did not wish to enter into a lawsuit' with her husband’s brothers, sister and mother. She was staying at Harper Caldcleugh’s home at the time. She knew that he was a man of great business experience, and had implicit confidence in him. She was not informed that her husband’s mother would inherit a life interest in Ms real estate. She,was not informed what her dower rights were in the premises. She was only told that she could secure a greater interest by having a lawsuit. All these circumstances operated to cause her to execute a deed whereby she conveyed a large proportion of her interest in her husband’s land. In other words, he died owning 406 acres of land, and she was entitled to one-half of it as dower She conveyed away all her interest in his land to his heirs-at-law in consideration that his brothers and sister should convey to her their interest in 80 acres of his land. The mother of her deceased husband retained her life interest in this 80-acre tract.

The execution of the deed by her was procured by undue influence within the rule announced above, and the chancery court properly set it aside. 2 Pomeroy’s Eq. Juris., 3rd ed., sec. 951; and Parker v. Hill, 85 Ark. 363.

The settlement with regard to the personal property was had on the 16th day of March, 1920. She conveyed her interest in it in consideration of Harper Caldcleugh paying the debts due by her deceased husband’s estate and for certain personal property received by her. It is true that it turned out that the personal property was largely in excess of the debts owed by her husband, but at the time the settlement was made it was not known what the amount of his debts would be or what the value of the personal property'of her husband’s estate would be. We do not think that the settlement with regard to the personal property was improvident, and the decree of the chancellor, in so far as it sustains the settlement and division of the personal property between the widow and the heirs of her deceased husband, will be upheld.

We are of the opinion that the court erred in holding that the homestead had been abandoned. It is well settled that a removal from the homestead, where there is a fixed and abiding intention to return to it, will not constitute an abandonment' of it as a homestead. An abandonment of a homestead is almost, if not entirely, a question of intent, which must be determined from the facts and circumstances attending each case. A removal from the homestead may be caused by necessity or for business purposes, and if the owner has an unqualified intention to preserve it as a homestead and return to it, his removal will not result in an abandonment of the land as a homestead. Stewart v. Pritchard, 101 Ark. 101; Melton v. Melton, 126 Ark. 541; and Dean v. Cole, 141 Ark. 177.

According to the testimony of the widow, there were 80 acres of land in what her husband called the home place. He had said that he was going to build a new house on it and move back to it. She expected to move back there with him. Her husband liad, before his death, placed lumber on his home place for the purpose of building a new home. There were already two small houses on it. There is nothing in the record to contradict her testimony, except the fact that her husband had moved from his homestead and was not living there at the time of his death. When we consider that he had always stated that he intended to return to his home place and had already bought the lumber for the purpose of building a new home, we do not think that the chancellor was right in holding that the facts and the attending circumstances constituted an abandonment of the homestead by Hogan Caldcleugh.

It follows that the chancellor erred in holding that the widow was not entitled to a homestead as well as dower in the land of her deceased husband. The widow is entitled to the homestead, not as dower in the estate of her deceased husband, but in addition thereto. Horton v. Hilliard, 58 Ark. 301; Ex parte Grooms, 102 Ark. 322; and Jameson v. Jameson, 117 Ark. 142.

The result of our views is that the chancellor erred in refusing to allow the widow a homestead, and for that error the decree will be reversed, with directions to enter a decree in accordance with this opinion In all other respects it will be affirmed.

OPINION ON REHEARING.

Hart, J.

Counsel for appellants complain that the court did not discuss the action of the court below in overruling their motion to withdraw the submission of the case for the purpose of taking further testimony.

This motion was not filed until the 26th day of January, 1922. The case was submitted on November 22, 1921. The testimony of Ben Jones was taken on December 6, 1920. Hence .appellants waited too long. They were apprised of the fact that Jones claimed that appellee had not been divorced from him when he testified to that fact. Hence they should have proceeded with diligence to take additional testimony on this point if they intended to rely upon it, and should not have waited until more than a year had elapsed before attempting to do so.

The motion for rehearing is denied.


author: Smith, J.

text:
    Arnold v. Grigsby.
    Opinion delivered April 9, 1923.
    1. Crops — ownership in general. — Growing crops form part of the real estate and pass by a conveyance thereof unless a constructive severance of the crops has been made by way of reservation in the deed of conveyance.
    2. Crops — land held in common — effect op partition. — Where land held in common is partitioned, the crops planted on the land by cotenants vest in the persons to whom the several parts are awarded, as each cotenant, when he sows, knows that the land is subject to partition and may be assigned to another cotenant in severalty before the crop can come to maturity.
    S. Crops — liability of purchaser at void sale. — Where land held in common was sold under decree of court which was confirmed, and the purchaser planted a crop, but the sale to him was subsequently set aside, and a resale ordered, one who purchased at the second sale was entitled to hold the first purchaser liable only for the usual and customary rent.

      Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;
    affirmed.

      W. E. Beloate, for appellant.
    The only question for discussion is whether appellants were entitled to the crops on the land at the time' of their purchase, or only to the rental value, as the lower court awarded. General rule is that growing crops form a part of the real estate, and, unless there has been a constructive severance, pass with it. Gibbons v. Dillingham, 10 Ark. 9; Floyd v. Rides, 14 Ark. 286; Bonta v. Merchants, 173 N. Y. 292. Court erred in not rendering judgment for amount found by jury, and case should be reversed and judgment rendered on jury’s verdict

      W. A. Cunmngham, for appellee.
    The judgment is right on the whole case, and should be affirmed. Williams v. Birdwell, 73 Ark. 419; Railway v. Randle, 85 Ark. 129. Appellants must show affirmatively that they were entitled to more than they recovered, which they have utterly failed to do.
   Smith, J.

Appellants sued to recover the value of a crop of cotton, corn and clover grown by appellee on a tract of land which they owned at the lime this litigation was instituted. One John Grigsby owned the land at the time of his death, and in a suit by his heirs for partition it was ordered sold for that purpose. The decree to that effect was rendered September 3, 1919, and a sale was had under its provisions on May 29, 1920, at which time appellee became the purchaser. The answer alleged that this sale was approved and confirmed, and that appellee entered into possession of the land as purchaser after obtaining the commissioner’s deed; and the truth of these allegations does not appear to be questioned.

Later one of the minor heirs of John Grigsby filed a petition to vacate the decree of sale and the decree confirming the sale to appellee, and the prayer of that petition was granted on May 31, 1921, and a commissioner was appointed and directed to resell the land. It does not appear, from the record before us, why this order was made. At the resale appellant, Susie Grigsby, became the purchaser, ancl obtained a commissioner’s deed dated September 20, 1921. She thereafter conveyed an undivided half interest in the land to her co-appellant, J. A. Arnold, and they brought this suit to recover the value of the crop grown during that year.

The court held as a matter of law that appellants were entitled only to the reasonable rental value of the land, and that value was submitted to a jury, and judgment was rendered in appellant’s favor for the rental value of the land as fixed by the jury, and this appeal is from that judgment.

In the decree of sale under which appellants claim, there was no reservation of growing crops, nor was there any reservation of them in the commissioner’s deed to Susie Grigsby as the same was confirmed.

It is settled that growing crops form part of the real estate and pass by a conveyance thereof, unless a constructive severance of the crops has been made by way of reservation in the deed of conveyance. Floyd v. Ricks, 14 Ark. 286; Latham v. First Nat. Bank of Fort Smith, 92 Ark. 315. In Freeman on Cotenancy and Partition (2nd ed.), § 532a, the law is announced as follows : “The crops growing on the' land vest in persons to whom the several parts are awarded. Each cotenant is presumed to hold the property subject to the right of the others at any time to compel partition. ‘His case is not within the equitable principle on which emblements are allowed by law to the outgoing tenant, because, when he sowed, he knew that the land was at any time subject to partition, on the application of his cotenants, or any of them, and of course might be divided and assigned to another cotenant, in severalty, before the crop could come to maturity. * * ”

Appellants invoke the doctrine there announced, and cite cases sustaining it in support of their contention that, as Susie Grigsby acquired the title in a sale for partition, she acquired it in severalty upon the confirmation of the deed from the commissioner to her, and that upon its confirmation her right related back to the date of the sale to her by the commissioner, and she became entitled therefore to the crop grown during that year. It does not appear when the commissioner sold to Susie Grigsby. It does appear that the decree setting aside the sale and the confirmation of the sale to Dewey Grigsby was not entered until May 31, 1921, and it also appears that he had at that time planted his crops.

The case of Gailey v. Ricketts, 123 Ark. 18, was one in which the purchaser at a commissioner’s sale sued to recover the rent for the year in which he purchased. The purchaser there did not ask for the crop, but only for the.rent. We held in that case that, as there had been no reservation of the rents in the decree of sale, the purchaser, upon the confirmation of the sale to him. acquired the right to the rent, his rights relating back to the date of his purchase and becoming fixed as of that date upon the confirmation of the sale.

So here Susie Grigsby’s right, upon the confirmation of the sale to her, related back to the date of the sale; and, while we do not know that date, we do know it was after May 31, 1921, at which time Dewey Grigsby had planted his crop.

Dewey Grigsby was not in possession at that time as a tenant in common, whose rights to the growing crops, as against his cotenants, would be dependent upon the result of the decree of partition. He was in possession as purchaser, and, although the court held he was not entitled to hold as a purchaser, and set aside the decree under which he asserted rights as purchaser, his rights were as great at least as would have been those of an ordinary tenant who was expecting to pay rent, and it is inequitable that he should be called upon to do more than pay the usual and customary rent. 'Conceding that Susie Grigsby’s rights related back to the date of her purchase upon the confirmation of that sale, she acquired no greater right against appellee than to require him to pay rent. Appellee was not a trespasser. He planted his crop at a time when he was the apparent owner, and should be afforded the right which would be accorded a mere tenant who might have been in possession at the time, that of keeping his crop and paying the customary rent. This was the judgment of the court below, and it is affirmed.


author: Smith, J. MoCuluoch, C. J.

text:
    Vaughan v. Woodruff-Prairie Road Improvement District No. 6.
    Opinion delivered April 9, 1923.
    1. Highways — contract of road improvement district with attorney. — While the commissioners of a road improvement district have the power to make contracts, they are trustees of the property owners, and can make only reasonable ones; and while the court should not substitute its judgment primarily for that of the commissioners, its inquiry should be to determine whether or not the contract is so improvident as to demonstrate its unreasonableness.
    2. Highways — amount of attorney’s fee. — A fee of $5,000 paid to the attorney of a road improvement district held, under the circumstances, to be a sufficient compensation for his-services.
    Appeal from Woodruff Chancery Court, Southern District; A. L. MutcMns, Chancellor;
    affirmed.

      J. W. Mouse, Jr., for appellant.
    Appellant was entitled to recover the amount prescribed by his contract of employment, 2 per cent, of the amount of the bond issue, having earned fees amounting to $11,000. The part of the opinion in 143 Ark. 454 applicable to this case supports this contention. Judgment should have been for balance of $6,000 and interest, and the judgment should be reversed and judgment rendered here for that amount.

      Roy D. Campbell, for appellee.
    Appellant should have been paid only a reasonable 'fee for his services as attorney by the district, and any charge in excess of such reasonable fee should be recovered by the district on its cross-appeal. We think 'also, as appellant appears to, that the law of the case is settled by 143 Ark. 454, which is certainly misinterpreted by appellant. It was shown that a reputable attorney had agreed to attend to all legal affairs of the district and its clerical work also for $1,500. The commissioners, moreover, accepted appellant’s own proposition of settlement in full with him for the $5,000 paid, and he is concluded thereby from claiming more. Appellant’s conpensation was fixed in advance, regardless of the service he might be required to perform. He only attended three meetings of the board, attended to no important litigation, had his assistant counsel ¡allowed $1,000, and $2,500 would have been reasonable compensation for the entire service rendered. Court should follow rule announced in the Chapline case, reduce allowance to appellant, and render judgment for $3,500 for appellee on its cross-appeal.

      J. W. House, Jr., in reply.
    A valid contract was made with appellant, and the services were properly rendered and the compensation sued for earned.. The district, long after the proposition of settlement was made, and 18 months’ more work had been done by appellant, attempted to accept it and bind appellant, which it could not do.
   Smith, J.

The Woodruff-Prairie Road Improvement District No. 6 was created by a special act of the General Assembly of 1919, and the commissioners there-, in named employed appellant as attorney for the district. The testimony shows that appellant accepted the employment reluctantly, and at first demanded a fee equivalent to three per cent, of the construction cost, based on the bonds issued, in payment of his services,, but that, at the solicitation of two of the commissioners,, he finally agreed to serve as attorney for a fee of two per cent.

The estimated cost of the completed improvement was $583,000, hut the first bond issue was only $350,000, and upon selling bonds for that amount the commissioners paid appellant $5,000 in cash. The remaining $2,000 has never been paid.

Appellant was employed in April, 1919, and immediately entered upon the discharge of his duties, but his compensation was not fixed until July thereafter. Later, friction arose between the attorney and the commissioners, although no complaint was made about the manner in which the legal services had been performed. In February, 1920, appellant proposed to resign, and offered then to accept the $5,000 which he had been paid in full for all services rendered up to that date. No formal response was made to this offer until November 1, 1920, at which time the district wrote appellant a letter, accepting the proposition made by him. In the time intervening between appellant’s offer in February, 1920, and the acceptance thereof by the district in November, 1920, appellant had continued to serve as attorney, and he refused to accept the $5,000 as compensation in full, ;and brought this suit for the balance which he claimed .•as his fee. In this suit he asks not only $2,000 on account of the first bond issue, but $4,000 based upon the .second bond issue.

The district answered and denied being indebted to appellant in. any sum, and filed a cross-complaint in which it asked the return of $3,500 which had been paid.

It appears appellant performed the services incident to the organization of the road district. He was employed by other improvement districts and served them contemporaneously, and during the time carried on his general practice. His important duties appear to have been advisory and clerical, as the district had but little litigation. A few property owners opposed their assessments on the ground of excessiveness, but this litigation was compromised and settled. The attornev who represented the protesting property owners testified that a reasonable fee to be charged for that service was from $50 to $75. The only contested litigation the district had was with a railroad running through the district, and special counsel'was employed in that case and paid a fee of a thousand dollars. Appellant testified that he attended all the meeting’s of the board which he was asked to attend, but he did not state the number of these meetings. One of the commissioners testified that appellant attended only three meetings of the board, one of them being the meeting at which he was employed.

Appellant testified that he was active and successful in obtaining an award of $50,000 State aid, of which sum $25,000 was paid. No Federal aid was allowed because, as appellant testified, the commissioners did not sign the application therefor. But it is not made clear just what service appellant performed in securing this State aid award, except to prepare the district’s application therefor and to visit the Highway Department in Little Rock on several occasions. Appellant testified that he appeared before the Interstate Commerce Commission in Washington, in a hearing upon the distribution of railroad cars, in opposition to an order which the commission proposed to make, transferring railroad cars east of the Mississippi River, and that, in connection with the trips which he made in the interest of the district, he incurred expenses amounting to $2,000; but this sum was not itemized, and it does not appear what items were included in it, so that we cannot know how-much of it was properly chargeable to the district.

Appellant appears to have acted for the district Li paying freight bills on material, -thereby saving the district demurrage charges which would otherwise have-been incurred, as none of the commissioners resided at the place where this freight was being delivered. This-service, however, was clerical and not legal, and should therefore be compensated on the basis of clerical', services. The district had not only a secretary but also an-employee known as “deputy financial agent,” and this: officer appears to have looked after most of the clerical and financial affairs of the district.

In opposition to the claim of appellant, testimony was offered that a reputable firm of lawyers offered to do all the legal work for a thousand dollars, or both the legal and clerical work for $1,500, this offer having been made in response to an inquiry from one of the commissioners. When this offer was proposed at a meeting of the board, one of the commissioners objected on the ground that the fee was excessive. The other two commissioners conferred aside and announced their intention to emplo3r appellant.

Appellant’s fee was fixed in July, 1919, on a two per cent, basis, and one of the commissioners caused a written protest to be entered on the records of the board against any fee in excess of a thousand dollars. However, the majority view that appellant should be employed prevailed, and he was employed.

Appellant testified that he prepared all the orders of the court in relation to the district, but admitted that the orders relating to the bond issue were prepared by the attorney for the bond buyers, that right having been .reserved by them, and the district paid the attorneys for the bond buyers a fee of $400 for this service.

We think no account should be taken of the second bond issue of $200,000 in fixing appellant’s fee. This bond issue was sold at a discount of $24,000, which appears to have been the best price obtainable at the time the bonds were sold; but the district does not appear to have received any of the net proceeds of the sale of this Issue, except the money advanced at the time the bonds were delivered, to meet .an outstanding estimate then due the contractor, and the district is involved in litigation in an effort to collect the balance which the bond buyer did not pay over. We see nothing in this transaction to support appellant’s claim for two per cent., or any other sum.

The district paid appellant $5,000 in the beginning, and finally accepted his proposition to allow him to keep that snm as full compensation for all his services, and we think this should have been the end of the matter. This appears to us to have been a reasonable compensation for any services which the record shows were performed. It is true, the district did not accept this proposition for a number of months after it was made, and during this interval appellant did perform some services, but, notwithstanding that fact, we think the offer constituted full 'Compensation when it was made, for during this interval no considerable services were performed. Indeed, the road was not finished, and has not been finished, and for a long period of time only a few matters of detail have required attention.

In the recent case of Bayou Meto Drainage District v. Chapline, 143 Ark. 446, we discussed the rule which should be followed in the allowance of attorney’s fees in similar cases, and we there said: “The commissioners, as public agents under the statute, -a.s we have seen, are not clothed with arbitrary power in the matter of fixing fees of attorneys. They are acting as trustees for the public, and must have an eye to the interests of those whom they serve — the property owners who pay all the expenses incident to the improvement. They must be guided, in entering into the contract of employment with attorneys and fixing their compensation, by what would be a reasonable compensation for services which the attorneys are actually to render. It was not the purpose of the statute to confer upon the commissioners absolute power to contract with the attorneys for fees that would be exorbitant and unreasonable for the services rendered the district. "While the presumption is that these public agents will conscientiously discharge their duties, yet it is not impossible, and indeed is entirely within the range of probability, that unreasonable and unconscionable fees may occasionally be agreed upon between the attorneys and commissioners. A -statute giving the commissioners absolute power in the premises to thus squander the money of the taxpayers, levied for the purposes of making the improvement, would be contrary to public policy.”

In the case of Sikes v. Douglas, 147 Ark. 469, we again said: “Appellee, as a taxpayer, has a right of action to prevent the performance of such a contract if it be found to be grossly excessive and unreasonable. Seitz v. Meriwether, 114 Ark. 289. The commissioners had no authority to enter into a contract for payment of an unreasonable fee to an engineer. Sain v. Bogle, 122 Ark. 14; Bnyou Meto Drainage Dist. v. Chapline, 143 Ark. 446.”

In the later case of Bowman Engineering Co. v. Ark.-Mo. Highway Dist., 151 Ark. 47, the subject was again reviewed and we there said: “The commissioners have power to make contracts, but they are trustees of the property owners, and can only make reasonable ones. The owners of the property have a right to challenge the validity of such contracts by showing that they are unreasonable. Of course, in testing the validity of such contracts, the' court should not substitute its own judgment primarily for that of the commissioners, the authority to make the contract being lodged by the lawmakers in the commissioners, but the inquiry of the court is to determine whether or not the contract is so improvident as to demonstrate its unreasonableness.”

Under these tests, we think it should be said as a matter of law that any contract to pay appellant more than the $5,000 which he has already received was one beyond the power of the commissioners to make. It is true appellant has rendered some services since he was paid the $5,000; but the question is, what wa« the value of all the services rendered? In deciding this question we take into account the skill and learning of the attorney (which is not questioned), the responsibility of the employment, the labor, time and trouble involved, the nature and importance of the services rendered, and the results achieved.

None of the road was ever completed, and a part of its funds are so involved that its completion lies in the future, and, while appellant may not be responsible, either personally or professionally, for this condition, it exists, and should be considered in determining what the taxpayers should be called upon to pay. They are supposed to pay for what they get, and should do so, but what the" did get should also be taken into account in determining what they should pay.

There was no litigation involving the validity of the district. The only litigation appellant was called upon to attend was a hearing on the protest of two Landowners on their assessments. This protest appears to have been settled and adjusted, and the attorney representing the landowners testified that he thought $50 to $75 was a, reasonable fee for that service. In the only contested litigation the district had special counsel was employed and paid a fee of a thousand dollars; and special counsel also prepared the court orders in regard to the sale of the bonds. Appellant did certain clerical work; but, as we have said, he should be'paid for this work on a clerical basis. Moreover, the district had a financial representative, in addition to its secretary, and it was the duty of those officers to attend tn mere clerical matters.

Appellant secured an allowance of $50,000 of State aid, of whicli $25,000 has been paid. But this is not to be treated as a sum recovered for the district upon which some per cent, thereof could be charged as if a, judgment had been recovered and collected. This allowance is presumed to have been made upon some basis adopted for the purpose of determining the merit of the project as a part of the State’s highway system, and appellant can charge only for his time and trouble in presenting the district’s application.

Appellant has severed his connection with the district, and new counsel has been employed, who must, of course, be compensated for his services, but we do not have before us any question as to what that compensation should be.

It -suffices here to say that appellant has been paid a sum beyond which it would be an abuse of discretion and power to pay more. We do not feel that we can say as a matter of law that there was no authority to pay the $5,000 which has been paid, so that we affirm the decree of the court below, both on the appeal and the cross-appeal.

DISSENTING OPINION.

MoCuluoch, C. J.

The fact that appellant’s relations as attorney for the district were ended by the acceptance of his offered resignation should not be considered in determining the amount of his earned compensation, for it is undisputed that his resignation was not accepted within a reasonable time. He tendered his resignation in February and offered to give up the retained portion of his fee, $2,000, if they would release him, but the commissioners declined to accept the resignation and induced appellant to go on with the work, which he did for a period of nearly ten months. In the meantime he proceeded with preparations for additional bond issue, which would have entitled him to further compensation under the contract.

This a case where there is a contract fixing the amount of the services, and in that respect it is unlike the case of Bayou Meto Drainage District v. Chapline, 143 Ar. 446, upon which the majority seem to rely in reaching their conclusion. In the Chap-line case, there being no contract, it was an original question to be determined by the court in the trial of the suit what fee should be paid, whilst in the present case there was a contract, and the inquiry is confined to the question whether or not the-contract was an improvident one so as to justify the court in disregarding it.

In this kind of a casé we should start with the assumption that the commissioners have not made- an improvident contract — in other words, that they have not disregarded their duty, and, unless the evidence shows that the contract is so grossly improvident as to stamp it .as a fraud, then the action of the commissioners in making such a contract should not be disturbed. I do not understand the law to be that, where there is a contract made by those acting under authority of law, judges are permitted to substitute their own judgment .and to pare down the value of services so as to conform to what they would have done if called upon originally to make such a contract.

A contract is the result of negotiation, .and a party to it must necessarily consider what the other party is willing to concede in the way of terms. This element of a contract must be taken into consideration in determining whether the commissioners were, guilty of making an improvident contract. The agreed price for the services may have been more than the commissioners themselves felt that they ought to pay, and more than we think they should have paid, but this does not necessarily mean that the contract is so improvident in its terms as to justify the court in canceling it on account of fraud. It is undisputed that there was no actual fraud in the execution of this contract. It is shown, without contradiction, that appellant had acted as attorney for other districts at a fee in excess of what was allowed by the commissioners in this instance, and for a time he insisted upon the same commission, that is to say, three per cent, on the bond issue, but very reluctantly reduced it to two per cent, at the earnest solicitation of the commissioners.

The majority opinion seems to minimize the value of appellant’s services by emphasizing the fact that much of his work was clerical. It is true that appellant, in his testimony, narrates many ■ instances of purely clerical work, but this was done to show that he more than performed his duty. He was employed as an attorney to perform professional services, and not for the purpose of performing merely clerical services, and his compensation was fixed for that kind of service.

This project involved an expenditure of $350,000 or more, and appellant was engaged in the performance of his services for about a year and a half.- No complaint was ever made that his services were unsatisfactory, and no such complaint is made now. Appellant offered to resign because he felt that the compensation was' not sufficient, and he offered to give up $2,000 of his fee if the commissioners would accept his resignation, but they refused to accept it, and insisted upon his going on with the work, which he did. It is true that one of the.commissioners was opposed at the start to the employment of appellant, and this commissioner wanted to employ another attorney, but the other two commissioners insisted on the employment of the appellant, and, as before stated, there was never any complaint about the character of the appellant’s services. The well-established rule is that, “not only the amount and character of the services and the results attained, but also the professional ability and standing of the attorney, his learning, skill and proficiency in his profession and his experience, may be considered in estimating the reasonable value of his services.” Rachels v. Doniphan Lumber Co., 98 Ark. 529; Davis v. Webber, 66 Ark. 199; Bayou Meto Drainage District v. Chapline, supra.

The evidence does not show that the fee fixed by the contract was exorbitant. It is true that the com.mismissioners introduced a witness, an attorney of Woodruff County, who testified that he offered in advance to act as the attornev of this district for a fee of $1,500, and that he thought this was a reasonable fee, but he does not state in his evidence that that was the customary fee for such services. Appellant himself testified in the case, and showed that it was customary to charge at least two per cent, of the amount involved, and that he had in several instances charged three per cent., and that such was the custom. Another attorney in that county testified that he had been engaged in this kind of service, and that the fee fixed in appellant’s contract was reasonable and in accordance with the general custom in the employment of attorneys by road districts. It is certain that the board of commissioners have never considered the fee excessive, and do not so consider it now, for, upon the acceptance of appellant’s resignation, they paid the $2,000 which should have gone to appellant under his contract, to another attorney for finishing up the services. Of course, the making of an improvident contract with the last attorney does not justify a previous one of the same character, but it has much force in determining whether or not the first contract was really improvident. I do not think the evidence justifies the cancellation of his contract as being a fraud upon the rights of the district.

Mr. Justice Humphreys concurs in these views.


author: Smith, J. Humphreys, J., Hart, J.,

text:
    Pugsley v. Sellmeyer.
    Opinion delivered April 9, 1923.
    1. Mandamus — exclusion of pupil from public school. — Where a pupil has been wrongfully excluded by the teacher from a public school in pursuance of a rule adopted by the school directors, mandamus is the proper remedy to compel the directors to allow the pupil to attend school.
    2. Schools and school districts — interference by courts. — ■ Courts will not interfere in matters of detail and government of schools unless the officers refuse to perform a clear, plain duty, or unless they unreasonably and arbitrarily exercise the discretionary authority conferred upon them.
    3. Schools and school districts — rule against use op face paint and cosmetics. — A rule of a school board forbidding, among other things, the use by pupils of “face paint or cosmetics” is not void as being unreasonable.
    4. Appeal and error — erroneous reason for proper judgment.-— A correct judgment of the lower court will be affirmed, though the reason assigned was erroneous..
    Appeal from Clay Circuit Court, Western District; W. W. Bancly, Judge;
    affirmed.

      G. 0. Raley and J. N. Moore, for appellant.
    The motion to dismiss appeal is without merit, the controversy between the parties not being settled, and should be dismissed. Case unlike 224 S. W. 617 or cases collected in 5 Ann. Cas. 628, showing* dismissal where acts sought to be completed had been performed and where time for performance of acts sought to be compelled had passed. 47 Pac. 424; 67 Pac. 1104; People v. Troy, 82 N. T. 575, 15 S. C. 322. Mandamus was the proper remedy to compel the-reinstatement of a pupil in the public school who had been wrongfully expelled for refusal to obey an arbitrary and unreasonable rule. 18 Sup. Ct. Rep. 441; sec. 1, Art. 14, Const. 1874; 34 Ark. 394; 45 Ark. 121; 89 Ark. 254. A further demand or request to enter school was unnecessary and would have been unavailing. 113 Ark. 40; 223 111. i87; 79 N. E. 123; 2 Bailey on Habeas Corpus 784; 73 N. W. 63; 19 Wend. 56; 22 Wis. 210. Board responsible for acts of its agents. 42 Ark. 563; 58 Ark. 386; 238 S. W. 54; 88 S. W. 582; 58 S. E. 609. Judgment should be reversed and mandamus issued commanding the appellees to allow appellant to enter school.

      M. P. Huddleston, for appellees.
    The mandamus was properly denied. The county board of education had jurisdiction of the controversy, ■and the school board, appellees, had the authority to adopt and enforce obedience to the rule. Secs. 8873, Crawford & Moses’ Digest, definition words “direction,” “supervision.” Universal Dictionary English Language; art. 7, sec. 14, Const.; 93 Pac. (Wash.) 924; 38 N. W. (Dak.) 52; 61 Pac. 258; 50 L. R. A. 747, 87 Am. St. Rep. 918; 17 Sup. Ct. 225; 165 IT. S. 28, 41 L. ed. 621; 22 Neb. 313; 92 Ark. 492. Courts would not have jurisdiction before county board of education had passed upon controversy. Had authority to direct school board, under language of statute. 35 L. ed. 974, 66 U. S., 1 Black 195, 17 L. ed. 137; 6 Ann. Cas. (Iowa) 966. School board had authority to make rule which was reasonable and not in conflict with any statute. 24 R. C. L., “Schools,” §§ 22, 24; 13 Ann. Cas. 330, N. 333; 6 Ann. Cas. (Ia.) 996; 100 N. W. (Ia.) 54; 34 N. W. (Ia.) 780; 61 N. W.' (Ia.) 859; 45 Atl. (N. J.) 755; 32 N. E. (Muss.) 864; 35 Am. Rep. (111.) 163. Appellant was not expelled by the school board. Its only action was the adoption of the rule. 35 Cyc. 901-3;'71'N. W. (Wis.) 123; 34 Am. Dec. (Mass.) 133 Mass. 103. Expulsion justified. -48 Cal. 36, 17 Am. Rep. 405. No longer any controversy, as shown by affidavits of school directors, and appeal • should be dismissed. 145 Ark. 303; 49 U. S. 8 How. 251; 149 U. S. 308; 113 Ark. 24; 2 R. C. L. Appeal & Error, § 145; 24 Am. Eng. Ann. Cases, 246; 5 Ann. Cas. 626, note.

      J. N. Moore, in reply.
    County hoard had no jurisdiction of the matter. Statute limits its supervision and direction to such questions “as are not otherwise provided for by law.” Directors have charge of school affairs and power to make and enforce all necessary rules and regulations. Secs. 8916, 8943, Crawford & Moses’ Digest. Court had jurisdiction. 6 A. L. R. 1525; 9 N. W. 356; 66 N. W. 765; 69 N. W. 544; 105 N. W. 686; 3 L. R. A. (N. S.) 496; 6 Ann. Cas. 996; 77 N. W. 491; 166 N. W. 202;-183 N. W. 434. Every step taken by appellant in this suit is legalized by 224 S. W. 442. Rule was unnecessary and unreasonable, and the expiration of the term does not terminate appellant’s right to attend school nor diminish her right to the relief sought.
   Smith, J.

Appellant alleged and proved that she was a resident of School District No. 11 of Clay County, of school age, and that in September, 1921, she enrolled as a pupil in that school. On the opening day of school N. E. Hicks, the principal, read certain rules which had been adopted by the board of directors, and announced that observance thereof would be required by all pupils who attended the school. Among these rules was one numbered 3', which reads as follows:

“The wearing of transparent hosiery, low-necked dresses or any style of clothing tending toward immodesty in dress, or the nse of face paint or cosmetics, is prohibited. ’ ’

Appellant infringed this rule by the use of talcum powder, and the teacher required her to wash it off, and told her not to return again with it on her face. A day or two later she returned and offered herself as a pupil,, but admission was denied her on the ground that she was infringing the rule by the continued use of talcum powder. She refused to submit to or to obey the rule, and was denied admission to the school.

Thereafter Miss Pugsley filed a petition setting out the facts stated, and prayed that a writ of mandamus issue requiring the directors of the school and the principal thereof to admit her as a pupil, notwithstanding her refusal to obey the rule set out above.

The case was submitted on its merits, and the court heard testimony supporting the allegations 'of the petition for mandamus, and made findings of fact and a declaration of law.

The court found the law to be that the rule was arbitrary and unreasonable, and one which the petitioner was not required to observe as a condition upon which she might attend the school; but the court found, the fact to be “ that the evidence fails to show that the expulsion of Miss Pugsley by defendant Hicks was done under the direction or authority of the school board, or that his action in the matter was ever approved of or ratified by the board of directors.”

Upon this finding of fact the court denied the prayer of the petition for mandamus, and dismissed the petition, and this appeal is from that order.

Appellant admits that, after the principal denied her admission except’upon the condition that she remove the talcum powder and discontinue its use, she did not appeal to any member of the board of directors; but the undisputed testimony shows that the board of direc.tors adopted the rule and directed the principal to enforce it, a-nd the secretary of the board, who was also a member thereof, testified as a witness, and his testimony makes it perfectly dear that any appeal to them would have been unavailing, for he stated unequivocally that the board regarded its breach as a challenge of their authority, and that, under the circumstances, its rescission or cancellation would have been subversive of all discipline in the school.

Under the circumstances the law did not impose upon the petitioner the duty of doing the unavailing thing of applying to the directors for admission; so that, while she was never expelled, she was, in fact, denied admission to the school, and this exclusion was tantamount to expulsion. Monette Road Imp. Dist. v. Dudley, 144 Ark. 169.

In the case of State v. School Dist. No. 16, 154 Ark. 176, petitioners sought by mandamus to compel the directors of the school district to allow them to attend school. Those petitioners had not been expelled, but had been excluded; and, while the action of the directors was approved and mandamus denied, we recognized mandamus as the appropriate remedy to obtain the relief sought. We there held that the educational interests and school affairs in each school district in the State are placed bjr statute, under the control and management of the school directors, and that to effectively exercise this authority a broad discretion must be accorded them, and in that connection it was said: “In defining the authority conferred upon the board, this court took occasion to say, in the case of Maddox v. Neal, 45 Ark. 121, that, while their authority is not without limit, yet ‘a wide range of discretion is vested in these boards by the statute in the matter of government and details of conducting the common schools.’ Courts will not interfere in matters of detail and government of schools, unless the officers refuse to perform a clear, plain duty, or unless they unreasonably and arbitrarily exercise the discretionary authority conferred upon them. We think the correct rule was laid down in the case of Watson v. Cambridge, 157 Mass. 561. It was said by Mr. Justice Knowlton, in rendering the opinion in that case, that ‘under the law the school committee has the general charge and superintendence of all the public schools in the town. The management of the schools involves many details, and it is important that a board of public officers, dealing with these details and having jurisdiction to regulate the internal affairs of the schools, should not be interfered with, or have their conduct called in question before any other tribunal, so long' as they act in good faith within their jurisdiction.’ ”

Was the rule in question a reasonable one, and did the directors have the right to make and enforce it? We answer this question in the affirmative. The law as quoted from.the Black case, supra, finds ample support in numerous decisions of other courts. A more general statement of the law applicable to the facts of this case is found in 24 B. C. L. at section 24 of the article on Schools, reading as follows: “The courts will not interfere with the exercise of discretion by school directors in matters confided by law to their judgment, unless there is a clear abuse of the discretion, or a violation of law. So the courts are usually disinclined to interfere with regulations adopted by school boards, and they will not consider whether the regulations are wise or expedient, but merely whether they are a reasonable exercise of the power and discretion of the board.” Many cases supporting this text are collected in the following annotated cases: Wilson v. Board of Education, 13 Ann. Cas. 330 Kinzer v. Directors, 6 Ann. Cas. 996.

The question therefore is not whether we approve this rule as one we would have made as directors of the district, nor are we required to find whether it was essential to the maintenance of discipline. On the contrary, we must uphold the rule,unless we find that the directors have clearly abused their discretion, and that the rule is not one reasonably calculated to effect the purpose intended, that is, of promoting discipline in the school, and we do not so find.

Appellant cites cases holding invalid various rules of the managing officers of the public schools; that of Valentine v. Independence School District, 174 N. W. 334, 6 A. L. R. 1525, being typical of the others. That was a case in which an order depriving a pupil of his diploma for refusal to wear a cap and gown at graduation was held unreasonable; but, in so holding, the Supreme Court of Iowa announced as the test of reasonableness of school rules substantially the one stated above.

Courts have other and more important functions to perform than that of hearing the complaints of disaffected pupils of the public schools against rules and regulations promulgated by the school boards for the government of the schools. The courts have this right of review, for the reasonableness of such rule is a judicial question, and the courts will not refuse to perform their functions in determining the reasonableness of such rules, when the question is presented.

But, in doing so, it will be kept in mind that the directors are elected by the patrons of the schools over which they preside, and the election occurs annually. These directors are in close and intimate touch with the affairs of their respective districts, and know the conditions with which they have to deal. It will be remembered also that respect for constituted 'authority, and obedience thereto, is an essential lesson to qualify one for the duties of citizenship, and that the schoolroom is an appropriate place to teach that lesson. So that the courts hesitate to substitute their will and judgment for that of the school boards, which are delegated by law as the agencies to prescribe rules for the government of the public schools of the State, which are supported at the public expense.

In the discharge of the duty here imposed upon us it is proper for us to consider whether the rule involves any' element of oppression, or humiliation to the pupil, and what consumption of time or expenditure of mouey is required to comply with it. It does not appear unreasonable in any of these respects. Upon the contrary, we have a rule which imposes no affirmative duty, and no showing was made, 'or attempted, that the talcum powder possessed any medicinal properties, or was used otherwise than as a .cosmetic.

We are unwilling to say, as a matter of law, that a local condition might not exist which would make a rule of this character desirable in aid of the discipline of the school, and we therefore decline to annul it, for we will not annul a rule of the kind unless a valid reason for doing so is made to appear; whereas, to uphold it, we are not required to find a valid reason for its promulgation.

It follows therefore that, although the court below was wrong in holding that appellant should have applied to the directors for relief before bringing* this suit, the writ of mandamus should not have been awarded, for the reason that the rule was not void, and the relief should have been denied on that ground. Cooley v. Ksir, 105 Ark. 307.

The judgment is therefore affirmed.

Humphreys, J.,

(concurring). A proper showing has been made to this court that the rule complained of was rescinded after this appeal was perfected. The case is therefore moot. It is entirely unnecessary to determine whether a nonexisting rule is reasonable or unreasonable, hence I refrain from doing so.

Upon this ground alone I concur in the affirmance of the judgment.

Hart, J.,

(dissenting). Miss Pearl Pugsley was 18 years old on the 15th of August, 1922. I think that a rule forbidding a girl pupil of her age from putting talcum powder on her face is so far unreasonable and beyond the exercise of discretion that the court should say that the board of directors acted without authority in making and enforcing it. “Useless laws diminish the authority of necessary ones.” The tone of the majority opinion exemplifies the wisdom of this old proverb.