text:
    Stout Lumber Company v. Reynolds.
    Opinion delivered January 9, 1928.
    1. Master and servant — acts op independent contractor. — Evidence held to sustain the liability of a timber owner for obstructing a creek by waste from timber cut, and permitting the obstruction to continue, where there was substantial testimony that the performance of the work of cutting the timber by an independent contractor would necessarily or probably obstruct the creek.
    2. Master and servant — -liability for independent contractor’s acts. — The test of liability for the acts of an independent contractor is whether such acts naturally endangered the property of another, if carefully performed.
    3. Waters and watercourses — -instruction as to obstructing creek. — In an action by a landowner against a timber owner for obstructing a creek and flooding plaintiff’s land, an instruction that defendant had the duty to fell the trees so as not to obstruct the flow of waters was properly modified by inserting “natural” before the expression of “flow of waters” and refusal to modify by inserting the word “unreasonably” before “obstructing” was not error.
    4. Master and servant — acts of independent contractor — liability. — A timber owner is liable for the acts of an independent contractor where their natural and probable consequences would be to obstruct a creek and thereby flood plaintiff’s land, but in that case the timber owner would be liable for all damages inflicted, although the amount thereof was increased by the independent contractor’s negligence.

      5. Master and servant — acts of independent contractor— instruction. — In an action against a timber owner for obstructing a stream causing plaintiff’s land to overflow, where defendant contended that the damage, if any, was done by an independent contractor, but plaintiff contended that the damage was the natural result of employment of the independent contractor to cut timber, an instruction that defendant was not liable unless the damage was occasioned iby the acts of defendant’s servants and employees was properly refused.
    6. Master and servant — liability for acts of independent contractor — -instruction.—In an action against a timber owner for obstructing a stream, causing plaintiff’s land to flood, in which plaintiff’s theory was that, even if the obstruction was caused by the acts of ah independent contractor by reason of the fact that the acts which the independent contractor was employed to do necessarily resulted in the damage, it was proper to refuse an instruction to find for defendant unless the work of cutting and felling trees and obstructing the stream was not done by an independent contractor.
    Appeal from Dallas Circuit Court; Turner Butter, Judge;
    affirmed.

      8. F. Morton, for appellant.

      J. T. Richardson, for appellee.
   Smith, J.

Appellee owns a quarter section of land, of which about fifty acres are in cultivation, and through' which Freo Creek, a stream having well defined banks, runs. Appellant owns a large body of timber land south of and adjacent to appellee’s tract, and on April 1, 1924, appellant entered into a contract with one P. C. Cottrell to cut and remove the merchantable timber from 840 acres of its land for an agreed price per thousand feet. The contract required Cottrell to cut the trees so that no stumps would be left higher than 18 inches from the ground and to cut the logs to lengths specified by appellant’s foreman. Appellant reserved the right to terminate the contract at any time upon five days’ notice to Cottrell.

The banks of the creek were heavily timbered, and, in ■cutting these trees, tops and portions of the trees fell into the creek at various places and dammed it up, so that appellee’s land was overflowed and damaged. Appellee testified that, while the cutting was in progress, he called the attention of appellant’s woods foreman to the fact that the preek was being obstructed, but the foreman stated that this was unavoidable, if the trees were all cut.

Appellee sued for and recovered judgment for damages to compensate the injury thus occasioned, and this appeal has been prosecuted from that judgment.

In the case of Taylor v. Steadman, 143 Ark. 486, 220 S. W. 821, it was said that:

“It is too well settled for controversy that the owner of the lands abutting on a stream is entitled to have the flow of waters in the stream to follow its natural and accustomed course without obstruction, and that any act which causes a diversion of such natural flow of water and inflicts injury creates a right of action. In other words, a landowner who sustains injury by reason of the diversion- of a natural watercourse is entitled to recover damages against the one who caused it.”

Appellant does not question this statement of the law, but contends that the overflow of appellee’s land was not caused by felling trees, but, if so, that it was not responsible therefor, for the reason that such action was the act of an independent contractor.

Instructions numbered 1 and 2, given at the request of appellee and over the objection and exception of appellant, present the theory upon which appellee recovered damages. These instructions read as follows:

“1. The court instructs the jury that it was the duty of the defendant to so cut and fell its trees as not to (unreasonably) obstruct the (natural) flow of the waters in Freo Creek; and, if you believe from a preponderance of the evidence in this case that the defendant compány caused to or cut or allowed trees and tops of trees which fell into the creek running through plaintiff’s farm, which obstructed the flow of the water of said creek, and that the overflow or volume of water running over plaintiff’s land in times of overflow or heavy rains was thereby increased, and that the plaintiff’s property has been damaged on account of said increased overflow, then your verdict should be for the plaintiff for such a sum as you believe from the evidence he has been damaged, -although the actual work of cutting the trees was done by an independent contractor, if the obstruction was the necessary or probable consequence of the work.
‘ ‘ 2. The court instructs the jury that, although you may believe from the evidence the damages or injuries in this case was done or caused to be done by independent contractors employed -by the defendant, still the defend•ant would be liable for any damages done the plaintiff, if, as a natural or probable consequence of the work they were employed to do, trees and tops of trees fell into the creek draining plaintiff’s farm, and that he was damaged thereby, although the negligence of the contractor may have increased the injury and enhanced the damages.”

Without reviewing the conflicting’ testimony, it may be said that the testimony offered on behalf of appellee is legally sufficient to support the finding that appellee’s lands were damaged by reason of cutting the trees so that portions thereof fell into the creek and obstructed the natural flow of the water therein.

The principal'question of fact in the case is whether the contract was one the proper performance of which would necessarily or probably result in obstructing the creek. The testimony on this subject is conflicting, but that on the part of appellee is to the effect that the attention of appellant’s woods foreman was called.to the flact that the creek was being obstructed, and that this continued after the foreman had been so advised, and that the foreman had said all the trees along the creek bank could not be cut without portions of some of them falling into the creek. Having found the fact so to be, the jury was warranted in returning a verdict against appellant, although the work was done by an independent contractor.

The test of liability for the acts of an independent contractor was announced in the case of St. Louis, I. M. & So. Ry. Co. v. Yonley, 53 Ark. 503, 14 S. W. 800, 9 L. R. A. 604, where it was said: “The right of recovery depends upon the inherent character of the act done — whether it naturally endangered the property of appellee, if carefully performed.”

The instructions quoted required the finding that the obstruction was a necessary or probable consequence of the work which the contractor was to perform under his contract, and the testimony is sufficient, as we have said, to support the finding that it was the necessary or probable consequence of the work called for by the contract.

No error was committed in modifying and in refusing to modify instruction numbered 1 as requested by appellant. This request was that the words “unreasonably” and “natural,” inclosed in the parentheses in instruction numbered 1 set out above, be inserted. The court refused to insert the word “unreasonably,” but did insert the word “natural,” and the instruction as given contained the word “natural,” but did not contain the word £ £unreasonably. ’ ’

The doctrine of the case of Taylor v. Steadman, supra, from which we have quoted, is that one may not obstruct the natural flow of water in á defined stream to another’s damage without being liable for that damage, and the measure of the liability would be the extent to which the flow of the stream was obstructed and the damage occasioned thereby.

It is earnestly insisted that instruction numbered 2 is erroneous in that it makes appellant liable for the increase of the damage occasioned by the negligence of an independent contractor, and that in no event should appellant be held liable for any greater damage than would have resulted, had the independent contractor not been negligent in the performance of his contract.

As we interpret the instructions, they told the jury that appellant would not be liable at all. unless the work contracted for was of such a character as that the natural or probable consequence of its performance would inflict injury; but, if this were true, appellant was liable for all damages inflicted, although the amount of the damage was increased by the negligence of the independent contractor.

The law was so declared in the case of White River Ry. Co. v. Batesville & W. Telephone Co., 81 Ark. 195, 98 S. W. 721, where it was said:

“The appellant, of course, was not liable for any injury caused ¡solely by the negligence of its independent subcontractor or his employees, or for any increased damages which their negligence might have occasioned. But it was liable for injuries which must have resulted from the prosecution of the work, although the negligence of the independent subcontractor may have increased the injury and enhanced the damages. ’ ’

The court gave all the instructions requested by appellant, except one for a directed verdict in its favor, and instructions numbered 4 and 5, which last-mentioned instructions read as follows:

“4. You are instructed that the burden is on the plaintiff to prove by. a fair preponderance of the evidence that the damage to plaintiff’s farm and lands, if any, was caused by the lacts of. defendant’s servants and employees in negligently and carelessly causing trees and the tops of trees to fall into Freo Creek below said farm and lands and to obstruct and divert the natural flow of said creek, and, if you find from the evidence that the damage to plaintiff’s .farm and lands, if any, resulted from some other cause or causes, you will find for the defendant.
“5. An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. And, even though you may find from the evidence that the natural flow of Freo Creek was obstructed by the felling of trees and' the tops of trees in it below plaintiff’s farm, causing said creek-to overflow its banks and wash and otherwise damage plaintiff’s farm and lands, you will find for the defendant, unless you further find from a fair preponderance of the evidence that the work of cutting and felling said trees and obstructing the natural flow of water in said creek was not done by >an independent contractor.”

Instruction numbered 4 was properly refused because it required the jury to find, before returning a verdict for appellee, that the damage was occasioned “by the acts of defendant’s servants and employees,” and to return a verdict for defendant if the damage resulted from some other cause or causes.

Appellant’s principal defense is that the damage, if any, was done by an independent contractor under a contract the proper performance of which would have' occasioned no damage, yet instruction numbered 4 required the finding that the damage “was caused by acts of defendant’s servants and employees,” thus eliminating liability iif the damage was caused by an independent contractor.

As we have said, it was appellee’s theory that appellant was liable, although the damage was caused by an independent contractor, but instruction numbered 4 ignores that theory and requires the finding that the damage was done by a servant or an employee. The instruction was properly refused for this reason.

Instruction numbered 5 is somewhat obscure, but it appears to convey the same ideia as was expressed in instruction numbered 4, and fails to take account of the conditions under which one may be held liable for the acts of an independent contractor as is herein stated.

There appears to be no error in the record; and, as the testimony is legally sufficient to support the judgment, it must be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Sloss v. Turner.
    Opinion delivered January 9, 1928.
    1. Vendor and purchaser — liability of vendor for sewage connection. — In an action against the owner of a tract of land, divided into lots, to- require payment for sewer connections, the charge for such connections was properly assessed against defendant individually, and not against interveners who bought lots, where the vendor had represented that the lots were connected with the sewer.
    2. Municipal corporations — right to sewer connection. — Property owners in a sewer improvement district were not estopped from maintaining an action against the owners of a new addition to require discontinuance of connection with the sewer in an improvement district, on the ground that they had induced the belief on the part of owners of lots in such addition that an outlet for sewage would be furnished.
    3. Municipal corporations! — suet to compel disconnection with sewer — laches.—Where connection with the sewers of a sewer improvement district was made in August, and the suit 'brought on the 2nd of the following April to compel disconnection there-" with, the suit was brought within reasonable time, so that the plea of laches was not well taken.
    4. Municipal corporations — sewer connection — validity op contract. — A contract between a commissioner of a sewer improvement district and the other commissioners under which the former made connection -with the sewer to serve a new addition owned by him, was void as contrary to public policy, as he should have resigned as commissioner before making the contract.
    5. Municipal corporations — discontinuance of sewer conneo tion — parties.—Property owners in a sewer improvement district were entitled to sue to require the owners of a new addition to discontinue connection with the sewer made under a void contract, where the commissioners of the district and the city both refused to sue.
    6. Municipal corporations — sewer district — duty of commissioner. — It is the duty of commissioners of a sewer improvement district to protect the interests of the district before it is turned over to the city as a completed project, and it is the duty of the city council thereafter to take such action as is necessary for that purpose.
    7. Municipal corporations — charge for sewer connection. — In determining a charge to be made for connection with a sewage system, in which new territory to be served lay on the opposite side of the district from the septic tank and had installed its own pipe lines, the cost apportioned on the basis of the total cost of the whole outfall system and septic tank of the sewer improvement district, held equitable.
    Appeal from Pulaski Clianoery Court; Frank H. Dodge, Chancellor;
    decree modified.

      Utley, Sam/mock <& Clark, for appellant.

      Fred A. Isgrig and Murray 0. Deed, for appellee.
   Smith, J.

Appellees are the owners of real estate situated in Sewer Improvement District No. 93 of the city of Little Rock, and they brought this suit for the benefit of themselves and of all other property owners of the district against A. W. Sloss, to require Sloss to discontinué a connection made with the sewers of the improvement district.

Sloss owned a tract of land which he divided into streets and lots, and which he called the Highland Park Addition. This addition was adjacent to but outside of the boundaries of the improvement district. Sloss put in, at' liis own expense, the necessary pipes to afford his addition sewerage facilities, and, after doing so, he made a contract with the commissioners of the improvement district whereby the pipes of his addition might be connected with those -of the improvement district, and for this connection he agreed to pay, and later paid, the sum of $100 in cash. Sloss was at the time one of the commissioners of the improvement district, but allowed the other commissioners to fix thé charge to be made, and did not participate as a commissioner in the determination of that question.

The connection with the sewers of the improvement district was made in August, 1925, and on April 2, 1926-, appellees brought this suit to compel a disconnection and to recover the sum of $5000 as compensation for the use of the sewer of the improvement district. The ¡complaint alleged that ¡Sloss had conspired with 'his associate commissioners to obtain sewer connections for his addition at a grossly inadequate price, and that the contract for this connection was void. The complaint alleged that the property owners had called upon the commissioners of the improvement district to institute this suit, but they had declined and failed to do so.

A demurrer was filed by Sloss, and, after it was overruled, an answer was filed, in both of which pleadings the right of the property owners to sue was challenged, and the answer denied all the material allegations of the complaint.

Certain persons who had bought lots from Sloss in the Highland Park Addition intervened, and alleged that the complaining property owners and the improvement district were’estopped from prosecuting the ¡suit, because, with full knowledge of the connection, they had permitted interveners to buy lots in the Highland Park Addition on the assumption that sewerage facilities had been provided for their property, and it was alleged that the suit of the plaintiffs was also barred by laches in failing to promptly institute suit.

On October 18, 1926, the plaintiffs filed an amendment to their complaint, in which they alleged that final settlement had not been made by the commissioners of the improvement district for the construction of the sewer, and that the district was still in charge of the commissioners, but it was also alleged that, if the city had taken over and was in charge of the district, Sloss had not obtained permission from the city to make the connection, and that the city council had been called upon to bring suit or join in the prosecution of this one, and had failed and refused to do so. There was a prayer that a disconnection be ordered, or that Sloss be required to pay $5000 to the improvement district, which was alleged to be the value of the connection.

An answer was filed to this amended complaint, alleging all the defenses previously made.

The cause was heard by the chancery -court on October 15,1926, and an order was made but not entered upon that hearing, and on January 7, 1927, a motion was filed for a nunc pro tuno order directing the entry of the prior order. The prayer for the nunc pro tunc order was granted and the order was entered, in which it was recited that the court had found that the connection had been made without legal authority, and that Sloss had been given twenty days in which to apply to the city council for permission to make the connection, with a proviso that, if either party was not satisfied with the compensation required by the city' for the connection, a hearing would be had by the court on that subject, and jurisdiction of the cause was retained for that purpose.

On the final submission it was shown by the records of the city clerk that the complaining property owners had, on June 28, 1926, called upon the city council to bring suit or to .join in this one against Sloss for connecting with the sewer of the improvement district, but that the request was denied. It was further shown by this officer that, after the first hearing before the chancellor, a committee of the council had submitted a report, which was later adopted by the council, fixing the value of the connection at $1,225 and that this sum had not been paid.

Hugh E. Carter, a civil engineer, testified that lie had examined the plans and specifications of the sewer district and had made estimates of the proportionate part of the cost of the improvement system which Sloss should pay. He testified that there were the equivalent of 1,655 standard lots 50 by 140 feet within the boundaries of the improvement district, and 53 such lots in the Highland Park Addition, which number was 3.1 per cent, of the total number of lots in both districts, and that, on the estimated cost to the improvement district of $115,053 for the installation of the sewerage system, Sloss should pay 3.1 per cent, of that amount, or the sum of $3,566.

J. H. Eice, on behalf of Sloss, testified that he, too, had made an estimate of the amount appellant should play for the connection. Witness had been engineer in charge of the improvement district when the system was constructed, and he gave in detail the length, size and cost of the laterals and main lines and the outfall lines and of the septic tank used in the plans of the improvement. He testified that the capacity of the plant was twice that of the district’s requirements, and that no overloading resulted from the connection made by Sloss. This witness also testified that it was. not fair to require a small addition, which had installed at its own cost its pipe lines, to share in the entire cost of the larger district, and that it was proper to take into account only the cost of the main serving the Highland Park Addition, including the septic tank. He further testified that only 48 lots in the Highland Park Addition did use or could- make use of the district’s system, and that he had made a calculation so that he could tell what Sloss should pay if the court should adopt the theory that Sloss ought to share the proportionate cost of the whole outfall system, including the septic tank, instead of that part only which he used, and on that basis Sloss should pay $773.76.

Testimony was offered on behalf of Sloss to the effect that similar connections were quite common, and that ordinarily no charge, or only a nominal charge, was made for such connection.

In the case of Peay v. Kinsworthy, 126 Ark. 323, 190 S. W. 565, the commissioners of a sewer improvement district brought suit against Peay to enjoin him from making a connection with the sewers of the improvement .district until he should first pay therefor. Peay, as a private individual, constructed a system of sewers in territory adjacent to that of the improvement district, in consideration of the abutting property owners paying certain sums of money as compensation for connections with his sewer, and thereafter, without obtaining permission from the commissioners of the improvement district, Peay connected his sewer with that of the district. The improvement had not been completed nor turned over to the city, so the commissioners brought suit to require Peay to disconnect or to pay for the connection.

We there said that there appeared to be no statute controlling the case of a connection with a sewer district before it had been taken .charge of by the city, but that there was no reason why the commissioners of the district should not, prior to that time, take the necessary action to protect the interests of the district. The court in that case found the value of the connection to be $400, and enjoined Peay from making or using the connection until that sum was paid. We there copied § 5726, Kirby’s Digest, which appears as § 7541, C. & M. Digest, and provides the method of determining the charge to be made for sewerage connections by the city council.

But little need be said of the interventions of the property owners who bought lots from Sloss in the Highland Park Addition. The charge for the connection was assessed by the court below against Sloss individually, and this appears to be proper, for the reason that he sold the lots to tlie interveners upon the assumption that the lots were connected with a sewerage system, and he should therefore bear the cost of furnishing what he represented the lots already had.

We think the property owners who brought this suit are not estopped from maintaining it, as they did nothing, nor did the improvement district do anything, to induce the belief on the part of the interveners that an outlet for their sewage would be furnished without cost' to them, and the plea of laches is not well taken, for the reason that the present suit was brought within what we think was a reasonable time, under all the circumstances of the case.

We are also of the opinion that the contract between Sloss and the other commissioners of the district was not valid and binding, for the reason that Sloss was himself one of the commissioners, and he could not make a contract with himself. He should have resigned as a commissioner before making a contract with the board of which he was a member. Such contracts are contrary to public policy, and are void for that reason. Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296; Gould v. Toland, 149 Ark. 476, 485, 232 S. W. 434. But, inasmuch as it is not denied that Sloss paid and the district received $100 for this connection, that sum .should be credited upon whatever amount is found to be the value of the connection.

We think also that the property owners had the right to institute this suit,, and that the action should not be dismissed as having* been prematurely brought.

As was said in the case of Peay v. Kinsworthy, supra, it was the duty of the commissioners to protect the interests of the district before it was turned over to the city as a completed project, and it was the duty of the city council thereafter to take such action as was necessary for that purpose. The original complaint alleged the failure of the commissioners to sue after demand had been made that they do so. But this allegation was made upon the theory that the commissioners were still in control of the property and affairs of the district, and, when it was discovered that the improvement had been turned over to the city as a completed project, demand .was made that the city sue, and this demand was also refused. The amended complaint alleged this fact.

It may be admitted that the property owners, as such, had no primary right to sue, and that they acquired this right only upon the failure of the commissioners to sue while the district was in their hands or the failure of the city to act after it took charge of the improvement. The undisputed testimony shows such a demand and a refusal in each case, and the right of the property, owners to sue thereupon accrued, and the amended complaint was, in effect, a new suit, which was not filed until after the city had been called upon to act and had refused to do so. We are therefore of the opinion that the property owners had the right to prosecute this suit. Tallman v. Lewis, supra; Griffin v. Rhoten, 85 Ark. 89, 107 S. W. 380.

In the development of the case it does not appear that the testimony on either side conformed to the measure of compensation provided by § 7541, C. & M. Digest, above referred to. This section provides that “no person shall be allowed to tap any such sewer without paying in proportion to the value of his property to be benefited thereby, as compared with the value of the property taxed in the district and the actual cost of said sewers.” The testimony of the two engineers who testified as experts, one on each side, expressed the views of these witnesses as to what would be an equitable basis and as to what the charge should be when calculated on that basis. We therefore decide the case made by the parties, and, as the calculations made by Rice more nearly conform to the statute and appear otherwise to be more equitable than the basis upon which Carter apportioned the cost, we accept the calculation made by Rice:

The first calculation made by Rice, fixing the value of the connection at $544.80, took account only of that part of the outfall system used by the Highland Park Addition, whereas his second calculation, fixing the value at $773.76, took into account the .whole outfall system. Rice’s testimony shows the cost of the septic tank and that of all ouitfall mains to have been $30,194, and the second calculation requires the Highland Park Addition to share in this cost. We think this should be done. The testimony shows that the lots in the Highland Park Addition are on the opposite side of the district from the septic tank, .and the sewlage from this property passes through a longer distance of the outfall pipe than does that of the property in the district, and it is not practicable to apportion this cost except upon the basis of the total cost of the whole outfall system and septic tank.

The decree of the court below will therefore be modified by fixing the value of the connection at $773.76, and, as $100 has been paid on that account, it will be credited thereon, and judgment will be rendered against Sloss for the difference, the same to be paid to the improvement district and to bear interest from Aug. 1, 1925, to date the connection was made.

Mr. Justice Humphreys, dissenting, is of opinion that the decree should be affirmed for the amount fixed by the city council.


author: Humphreys, J.

text:
    Atkinson v. Bank of Nashville.
    Opinion delivered January 9, 1928.
    1. Principal and agent — evidence of authority.- — In an action against a bank by the maker of a check in which the sole issue was whether the agent of the payee had authority to indorse and collect the check made by plaintiff payable to the agent’s principal, evidence as to the principal’s authority to another bank to cash checks payable tq. it on the agent’s indorsement was not admissible.
    2. Principal and agent — authority of agent.- — Authorizing an agent to make collections in cheeks as well as in money does not authorize him1 to indorse checks so taken in his principal’s name.
    3. Principal and agent — evidence as to agent’s authority.- — Ip a depositor’s action against the bank, which paid a check payable to a firm on indorsement by the firm’s agent, where the members of the firm testified that the agent had no authority to cash the check, evidence relative to business transactions of the agent with other parties, without showing that the firm knew thereof, or that they subsequently ratified them, was inadmissible.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    reversed.

      James S. McConnell, for appellant.

      J. G. Sain, for appellee.
   Humphreys, J.

This is an appeal from a judgment rendered 'in the circuit court of Howard County, dismissing the complaint of appellant. The questions involved on the appeal are whether certain evidence was improperly admitted by the trial court, and whether the testimony is sufficient to support the verdict and consequent judgment. The sole issue in the case was whether William Chamblin was authorized to indorse and collect from appellee a check for $150, payable to the order of Parker Brothers, drawn by appellant to pay for fruit trees ordered by appellant from Parker Brothers, through their sales agent, William Chamblin.

The written order for the trees Was given to Chamblin the first day of September, 1925. The order contained a provision that it should not become a binding contract unless and until accepted by Parker Brothers. It was never delivered by Chamblin to Parker Brothers, so the order was never accepted or filed. On the 8th day of September, 1925, Chamblin induced appellant to pay for the trees in advance by offering him a discount on the contract price. Plaintiff gave the check in question in payment of the trees. The check was collected by William Chamblin, and used by him personally. The check and indorsement thereon is as follows:

“Nashville, Ark., 9/8/25 No...............
“Bank of Nashville:
“Pay to the order of Parker Bros. $150 (one hundred and fifty dollars). (Paid).
“S. W. Atkinson.
Indorsed: “Parker Bros., by Wm. Chamblin.”

The record discloses, without dispute, that, for several years just prior to the transaction, William Chamblin was the general agent of Parker Brothers in the vicinity of Nashville, in Howard County, to take orders for fruit trees and other nursery stock for Parker Brothers, who were in the nursery business in Washington County, and to collect for the nursery stock in money or checks, but there is an entire absence of testimony to show that he had authority from Parker Brothers to indorse and cash checks made payable to them for the nursery stock at the time the check in question was given. Bell’s testimony tended to show that Parker Brothers authorized the Farmers’ Bank & Trust Company at Nashville to cash checks given to Parker Brothers, in payment of nursery stock, upon William Chamblin’s indorsement, while' Chamblin did business with that bank and before he commenced doing business with appellee bank.

We do not think Bell’s testimony admissible in an endeavor to show that such authority was conferred upon appellee bank, or that Parker Brothers authorized Chamblin to indorse checks made payable to them for nursery stock. The law applicable to cases of this character was clearly stated in two well-considered cases, one decided recently and the other several years ago, by this court, as follows: ‘‘The fact that an agent is authorized to make collections in checks, as well as in nioney, does not enlarge his authority to indorse checks so taken in the name of his principal.” Schaap v. First National Bank of Fort Smith, 137 Ark. 251, 208 S. W. 309; Wayne Tank & Pump Company v. Bank of Eureka Springs, 172 Ark. 775, 290 S. W. 370.

George Parker testified positively that his firm never gave authority to William Chamblin to indorse and cash checks payable to them which he received on orders for nursery stock.

Appellant and his son-in-law, A. W. Hale, testified that, when they approached C. F. Hill, cashier of appellee bank, to ascertain the bank’s authority for having cashed the check, Hill told them that it just assumed the authority. Hill did not deny making this statement to them.

Quite a number of the acts of Chamblin in behalf of Parker Brothers were introduced in evidence relative to business transactions with other parties, but it was not shown that Parker Brothers knew of the transactions or that they subsequently found out about them and ratified same. None of his acts were admissible in evidence unless traced to the knowledge of Parker Brothers. All such evidence should have been ruled out by the court. On account of the admission of Bell’s testimony and the transactions referred to with other parties which were not traced to the knowledge of Parker Brothers, the judgment is reversed, and the cause is remanded for a new trial.


text:
    Hines v. Martin.
    Opinion delivered January 9, 1928.
    1. Attachment — liability under forthcoming bond. — Where a suit and attachment proceedings were instituted against a tenant for rent, and the attachment was sustained and the property-ordered sold, dismissal of the suit as to the tenant disclaiming interest did not operate as a dismissal and release of the forthcoming bond given by the sureties in the attachment branch of the case, though no personal judgment was taken against the tenant, the amount due being ascertained and declared a lien on the property attached, and hence defendant sureties, having become parties to the attachment proceeding by virtue of signing the forthcoming bond, were not released therefrom.
    2. Attachment — forthcoming bond — liability of surety. — A surety on a forthcoming bond in an attachment proceeding becomes a party to the proceeding and is bound by a judgment sustaining the attachment and ordering a sale of the property.
    3. Attachment — forthcoming bond — judgment against sureities. — Where, in an attachment proceeding, defendants executed a forthcoming bond, and at a subsequent term proceedings were had for summary judgment against defendants, such proceeding was in effect a continuance of the original suit, and the defendants, being already parties to such suit, were not prejudiced by the rendition of the judgment which the court should have rendered in the original suit.
    4. Principal and surety — conclusiveness against surety of judgment against PRINCIPAL. — In a suit on a forthcoming bond executed by defendants, in an attachment suit, bondsmen failing to interpose a defense in the original action against their principal are barred from interposing such defense in a suit on their bond.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Edward Gordon, for appellant.

      Hays, Priddy & Rorex, for appellee.
   Humphreys, J.

This is an appeal from a judgment rendered at the November term, 1926, of the circuit court of Pope County in favor of appellee against appellants on a forthcoming bond executed by appellants in an attachment suit for rents brought to the April, 1925, term of said court by appellee against J. A. Hines. Omitting caption and style of case, the bond is as follows:

“We undertake and are bound to the plaintiff, L. G-. Martin, in the sum of $533.36,. that the defendant, J. A. Hines, shall perform the judgment of the court in this action or that he will have the property, to-wit, the crop of cotton of J. A. Hines grown during the year 1924, attached in this action, or its value, $533.36, forthcoming and subject to the orders of the court for the satisfaction of such judgment.

“In testimony whereof witness our hands this the 4th day of February, 1925.
“J. A. Hines,
“W. S. Austin,
“L. H. Austin.”

In the original suit in which said bond was given it was alleged that appellee herein, L. G-. Martin, rented J. A. Hines, one of the appellants herein, certain land for the year 1924 for one-fourth of the cotton and one-third of the corn raised thereon; that Hines raised fifteen bales of cotton and 250 bushels of corn on the land, the rentals being worth $533.36; that he removed the cotton and corn from the place without paying the rent, a part of the corn being stored in W. S. Austin’s barn and a part of the cotton in the compress at Russellville. Summons and attachment were duly issued and served. After the cotton was attached, the appellants gave the forthcoming bond set out above and took possession of the cotton.

J. A. Hines and the other appellants herein, who were the sureties on the bond, made no defense to the action, although it appears that J. A. Hines was present in court during the trial of the cause. Testimony as to the rental contract, the amount of rent due, and to sustain the ground of attachment, was introduced. At this juncture of the proceedings J. A. Hines disclaimed any interest in the cotton attached, and the suit as to him was dismissed. Based upon the testimony introduced, the court adjudged that appellee herein recover $533.36 as rent for the- land, and sustained the attachment against eight bales of cotton which the sheriff had seized in said warehouse, and ordered a -sale thereof, or so much as might be necessary to pay the amount. The attachment was sustained and sale ordered, under the belief that the cotton was still in the custody of the .sheriff. After court adjourned the clerk issued an order of .sale for the-cotton, but the sheriff could not sell it because appellants had not returned it in accordance with the provisions of the forthcoming bond. Upon the sheriff’s refusal to sell the cotton, appellee herein brought suit against him at the next, or November, term of said court, asking judgment for the amount of the debt, interest and costs. The sheriff filed an .answer, alleging that he had received a forthcoming bond and released the cotton, stating that the bond had been lost, .and requesting permission to file a copy thereof, which was granted. The original bond was found, however, and filed instead of the copy. When the original bond was filed, the court rendered a summary judgment against the bondsmen, the appellants herein, for the amount of the debt, interest.and costs, and dismissed the suit as to the sheriff. -

At the same term of court J. A. Hines, L. H. Austin, W. S. Austin and J. K. Austin filed a motion to set aside the judgment against the bondsmen, requesting permission to intervene in the original suit of L. G-. Martin against J. A. Hines, so as to defend upon the ground that J. A. Hines was only a share-cropper of J. K. Austin, and that Austin was to pay the rent to Martin, and was only to pay $12.50 per acre. The intervention was filed interposing that defense, and at the April term of court, 1926, the court set aside the summary judgment rendered on said bond against J. A. Hines, W. S. Austin and L. H. Austin, and ordered .that summons be issued agáinst them, and that the cause be continued until the first day of November, 1926, term of said court. During the November, 1926, term of court, tall parties' being present in person and by attorney, the cause was submitted upon the pleadings and the evidence relative to the manner in which the original judgment was rendered and the subsequent proceedings had and done. The court refused to hear testimony in support of the defense offered by the bondsmen, to the effect that J. A. Hines had rented the land from J. K. Austin, the father of W. S. Austin, and J. K. Austin had rented the land from W. S. Austin before W. S. Austin sold his lease contract, to the plaintiff, L: Gr. Martin, and that J. A. Hines had agreed to pay J-. K. Austin $12.'50 per acre for the land, and that he paid said amount to his landlord in accordance with the terms of the contract. Appellants objected, and excepted to the action of the court in excluding this evidence. The court then rendered a judgment on the forthcoming bond, from which is this appeal.

Appellants contend for a reversal of the judgment upon the ground that the dismissal of the original suit against J. A. Hines was in effect a dismissal and release of the forthcoming bond. We do not understand that the dismissal of the suit as to J. A. Hines included the dismissal of the attachment proceeding'. The bond was given in the attachment branch of the case. The attachment was sustained, and the cotton attached was ordered sold, but the sheriff could not sell it because it had been turned over to appellants under the forthcoming bond. It is true no personal judgment was taken against J. A. Hines for the amount of rent due, but the amount due was ascertained and declared a lien upon the cotton. J. A. Hines and his bondsmen were not released from the forthcoming bond, and, by virtue of having' signed said bond, were parties to the attachment branch of the case. A surety on a forthcoming bond in an attachment proceeding becomes la party to the attachment proceeding. Fletcher v. Menken, 37 Ark. 206; Morse Bros. Lbr. Co. v. Burkhart Mfg. Co., 155 Ark. 350, 244 S. W. 350; Layton v. Linton, 159 Ark. 529, 252 S. W. 21; Dent v. Farmers’ & Merchants’ Bank, 162 Ark. 325, 258 S. W. 322. Being parties to the attachment proceeding they were all bound by the judgment sustaining the attachment and ordering a sale of the cotton. Under this judgment' it was their duty to return the cotton to the sheriff. It was also their duty to interpose any and all defenses which they had to the action of Martin in the original suit, and, failing to do so, they were barred from afterwards interposing any defenses which they had at that time. The court should have rendered a judgment in the first suit against appellants under the forthcoming bond, but it seems at that time that the sheriff had forgotten that the forthcoming bond had been executed, and the fact that such a bond had been issued had not been called to the attention of the court. The proceeding at the November term against the sheriff and the summary judgment rendered against the bondsmen was in aid and in reality a continuation of the first suit. The bondsmen were already parties in the suit by virtue of having executed the bond, and were in no wise prejudiced by the rendition of judgment against them at the November term, which the court had a right to enter, and should have entered, in the original judgment. The suit against the sheriff brought to the November term was in substance a motion in the original suit for a summary judgment upon the bond against the bondsmen.

The court did not err therefore in refusing to entertain the defense tendered by the bondsmen against the suit upon the bond. They were barred from interposing the defense by having failed to set up their defense in the original action. Church v. Gallic, 76 Ark. 423, 88 S. W. 979; Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973; Taylor v. King, 135 Ark. 43, 204 S. W. 614.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Terrill v. Fowler.
    Opinion delivered January 9, 1928.
    1. Bills and notes — burden of proof of forgery. — Where defendant, .sued on a note, relied on the "defense that his signature as a joint maker was a forgery, the burden was on him to show such fact, where the note had been filed as part of the original pleading, and the genuineness of the signature had not been denied before trial by verified answer or otherwise, as required by Crawford & Moses’ Dig. § 4114. .
    2. Bills and notes — proof of other forgery. — Where one sued on - a note as maker urged as a defense that his signature was a forgery, evidence that the other maker, whose signature appeared on the note, had on previous occasions forged notes, held inadmissible.
    .Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    reversed.
    STATEMENT OF FACT.
    Appellant brought this suit in the Hot Spring Circuit Court against the appellee to recover the balance claimed to be due, $574.36, on a note executed by H. B. Shaw and W. M. Fowler to him. The note was filed with the pleadings in the case before the trial.'
    W. M. Fowler filed a separate answer, denying any' indebtedness or that anything remained due and unpaid on the note; alleged that he had never executed said note or authorized the signing of his name thereto, and that his name was forged thereon, and he was not liable for the payment of the note. The answer was filed October 18, 1926, but was not verified.
    The note was read in evidence, and expert witnesses and witnesses claiming to be familiar with the signature of appellee testified that his signature upon the note was genuine; while he denied having signed it, and stated that it was a forgery, and introduced other witnesses, who qualified as experts, who stated that they did not believe it was a.genuine signature.
    'Several witnesses were allowed to testify, over appellant’s objection and exceptions, that J. B. Shaw had forged the names of other people to other notes, transactions entirely separate from and unrelated to the matter in controversy.
    The court gave, over appellant’s objection, an instruction including the clause: “You are instructed that the burden of proof is upon the plaintiff to show that the signature of the defendant on the note sued on is genuine, and, if he fails to show this fact, your verdict must be for the defendant,” and refused to give his requested instruction No. 1 as follows: “You are instructed that the burden of proof is upon the defendant to show that his signature to the note sued on is a forgery, and, if he fails to do so, your verdict must be for the plaintiff for the amount sued for. ’ ’
    From the judgment against him this appeal is prosecuted by the appellant.

      H. B. Means, for appellant.

      John L. McClellan, for appellee.
   Kirby, J.

'The court erred, as insisted by appellant, in instructing the jury that the burden of proof was upon him to show the genuineness of the signature of the maker of the note.

The statute provides: “Where a writing purporting to have been executed by one of the parties is referred to in and filed with a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun.” Section 4114, C. & M. Digest.

It is true this court has- held that the genuineness of a writing may be contested without the filing of such affidavit denying its genuineness (St. L. I. M. S. Ry. v. Smith, 82 Ark. 105, 100 S. W. 884; Hall v. Rea, 85 Ark. 269, 107 S. W. 1176; Staggers v. White, 121 Ark. 328, 181 S. W. 139); but the instrument, unless the said affidavit is filed, or a verified answer denying its genuineness, may be read as prima facie evidence of its recitals. Staggers v. White, supra; Hughes v. Gardner, 144 Ark. 282, 222 S. W. 43.

The court said in the last mentioned case:

“In other words, a failure upon the part of the defendant to comply with the statute raised the inference or presumption of law that the' writing on which he is sued and purporting to he signed by him is genuine, and, having failed to file the affidavit provided by. the statute, the burden is cast on him to show that it is pot genuine. ’ ’

The court erred in instructing the .jury otherwise that the burden of proof was upon the plaintiff to show that the signature of defendant on the- note sued on was genuine, and in refusing to give appellant’s requested instruction No. 1.

The testimony of witnesses tending' to show that Shaw, the joint maker of the note, was a forg-er and had left the jurisdiction of the court, and also that he had forged the names of other and different persons to notes entirely distinct from and unrelated to the matter at issue, was incompetent, and the court erred in permitting its introduction. State National Bank v. Lark, 124 Ark. 432, 204 S. W. 101.

For the errors designated the judgment is reversed, and the cause remanded for a new trial.


author: Kirby, J. MpIIaney,

text:
    Lewis v. Crawford.
    Opinion delivered January 9, 1928.
    1. Partition — allowance of attorney’s fee. — Acts 1921, p. 415, § 1, providing that in suits for partition the court may allow a reasonable fee for attorneys bringing a suit to be taxed as part of the costs, is not mandatory, and leaves the court the discretion to determine the eases in which such allowance may properly •be made.
    2. Partition — allowance of attorney’s fee. — Under Acts 1921, p. 415, § 1, providing that in suits for partition the court may allow a reasonable fee to attorneys bringing the suit, held the court was not warranted in requiring defendants in adversary partition proceedings, who were represented by their own counsel, to pay the fee of the attorney bringing the suit for partition as costs of the- litigation.

      3. Partition — allowance of attorney’s fee. — While a court has discretion under Acts 1921, p. 415, § 1, to determine when an allowance of a reasonable fee to attorneys bringing- a partition -suit shall be taxed as costs, it is only in amicable suits, or when the services of plaintiff’s solicitor result in benefit to the whole subject-matter, or is acquiesced in by the other parties, that the court can, as a matter of course, tax a reasonable attorney’s fee as costs to be paid according to the respective interests of the parties.
    Appeal from Washington Chancery Court; Lee Seamster, Chancellor;
    reversed.

      E. B. Wall and W. N. Ivie, for appellant.

      John B. Duty, for appellee.
   Kirby, J.

The only question presented by this appeal is whether or not, in a suit for the partition of lands, it is proper for the court to allow the solicitor of the plaintiff a fee for his services and tax the same as costs against all the parties to the action. The question was answered in the negative in Gardner v. McAuley, 105 Ark. 439, 151 S. W. 997, since which time it is insisted that the rule has been changed by statute, act 386 of the Acts of the General Assembly, session 1921, which provides:

“Section 1. That hereafter in all suits in any of the courts of this State for partition of land, when a judgment is rendered for partition, it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the áttorneys bringing such suit, which attorney’s fee shall be taxed as part of the cost in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.”

This statute was enacted, doubtless, to change the rule as announced in said case supra, where it was said, quoting from Cowling v. Nelson, 76 Ark. 146, 88 S. W. 913: “The utmost that can be said of the attorney’s fees is that they were part of the costs; and as to whether the court has, in amicable suits, any right to tax them as costs, is a question that the courts are divided upon, but all agree that, in adversary proceedings, they cannot be so taxed. ’ ’

It was also there said that the weight of authority-appeared to he against the taxation of attorney’s fees, even in amicable partition suits, unless the partition resulted solely from the services of the solicitors for one of the parties,- and such services were accepted by the other parties; and “in adversary suits there is no ground for taxing the fees of the solicitor of one of the parties against the other parties, and the doctrine of allowance of attorney’s fees in amicable suits of this character should, we think, be limited to those cases where the services of the plaintiff’s solicitor not only result in benefit to the whole subject-matter of the litigation, but are accepted and acquiesced in by the other parties. The rule does not apply where all of the parties appear by their respective solicitors and the proceedings are conducted through their joint efforts.”

Cyc says: “The general principle underlying the statutes authorizing allowances to be made in partition suits for the services of attorneys is that, irrespective of the person in fact employing the attorney, his services were necessary to the conduct of the proceeding and therefore were beneficial- to all the parties; and, so far as they were such, are equitably chargeable against’ all. This is ordinarily true of the services of plaintiff’s attorney, who, in bringing the action and in his antecedent investigations and in every step he takes, unless it be in the trial of contested issues as to title, works for the benefit of all the parties. If a defendant has, or in good faith believes he has, a good and substantial defense to the action, and employs an attorney to present it, such defendant is not answerable for any part of the fees of complainant’s attorney.” 30 Cyc, page 299.

The language of the act is broad and comprehensive, providing that in all suits in any of the courts of the State for partition, or where a judgment is rendered for partition, “it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the attorneys bringing such suit, which attorney’s fee shall be taxed as part of the cost in said canse, and shall be'paid pro rata as the other costs are paid, according to the respective interests of the parties to said suit in said lands so partitioned.” While this language appears all-inclusive and t*o authorize the court rendering the judgment or decree for partition to make ah allowance of a reasonable fee, to be taxed as part of the costs in all suits for the partition of land, to the attorneys bringing such suit, it is not mandatory, and leaves the court the discretion to determine the cases in which such allowance should properly be made.

Certainly it would not be just or equitable to require the appellants, who owned the seven-eighths interest in the land partitioned, who recognized the necessity for employment of, or preferred to be represented by, an attorney of their own selection, in the suit which may be regarded adversary instead of amicable, to pay the fee of plaintiff’s attorney and also their own. It is true the chancellor found that the attorney bringing the suit fully developed all rights and interest of both plaintiffs and defendants, and was in no wise aided or assisted by the defendants or their counsel in protecting and ascertaining the rights of all parties, plaintiffs and defendants, but appellants evidently believed it necessary to do so, and had the right to employ an attorney of their selection to represent them and protect their rights in the litigation, without being mulcted into the payment of the fee of opposing counsel as costs in the case.

We are of opinion that under a proper construction of the act the court was not warranted in requiring the defendants in an adversary proceeding, who were represented by their own counsel, to pay the fee of the attorney bringing the'suit for partition as costs of the litigation on the rendition of judgment for partition. There is no great unanimity of opinion in the courts of other jurisdictions in the construction of statutes of like kind. The following cases are cited in harmony with our holding: Brower v. Rosenbaum Little, 125 Miss. 87, 87 So. 130; Hoffman v. Smith, 61 Miss. 544; Wainscott v. McBroom, 203 Ky. 634, 262 S. W. 961; Seeburger v. Seeburger, 325 Ill. 47, 155 N. E. 763; Jones v. Young, 228 Ill. 374, 81 N. E. 1042;. Hemingray v. Hemingray (Ky.) 96 S. W. 574.

It'might not be so in all adversary proceedings for partition, the court having the discretion to determine in which it should be done, but it is only in amicable suits for partition, or when the services of plaintiff’s solicitor result in benefit to the whole subject-matter of the litigation, or is accepted and acquiesced in by the other parties, that the court can, as a, matter of course, tax the reasonable attorney’s fee of the party bringing the suit as costs in the case, to be paid pro rata as the other costs are paid, according to the respective interests of the parties to the suit in the lands partitioned.

For the error designated in taxing the fee of the attorney bringing the suit as costs of the case against appellants, the decree is reversed and the cause remanded, with directions to distribute the proceeds of the sale of the partitioned lands according to the interest of the parties without deduction of any part of the attorney’s fee as cost of the litigation, and for'other proceedings in accordance with the principles of equity and not inconsistent with this opinion.

Justices Wood, Humphreys and MoHaney dissent.

MpIIaney,

(dissenting). With all due deference to the opinion of the majority in this case, I cannot bring myself to agree to the views therein expressed, for the reason that in my opinion it destroys the act of the Legislature under consideration, which is act 386 of 1921, and section 1 thereof is as follows: “That hereafter in all suits in any of the courts of this State for partition of lands, when a judgment is rendered for1 partition, it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to- the attorney bringing such suit, which attorney’s fee shall be taxed as part of the costs in said cause, and shall he paid pro rata as the other costs are paid according to the respective interests, of the parties to said suit in said lands so partitioned.”

While the opinion of the majority does not in terms hold this act unconstitutional, yet the effect of the decision is that, if it be construed in accordance with its plain provisions, making it lawful for the court to allow a fee in all suits for partition, where judgment therefor is rendered, whether litigated or not, and taxing the amount thereof against the respective interests pro rata, it is unconstitutional. There is no exception contained in the act making it lawful for the court to allow a fee in such cases, but the opinion of the majority, in my judgment, writes such an exception into the act in contradiction of its plain terms.

It will be noticed that the act provides “that hereafter in all suits * * * for partition of lands when a judgment is rendered for partition, it shall be lawful,” etc. It is not provided in the act that it shall be lawful for the court to fix a fee only in uncontested cases, but the language of the act is in all cases it shall be lawful for the court to fix a fee. It will be noticed from the language of the act that it is lawful for the court to grant a fee only in ease “judgment is rendered for partition.” Therefore, when a partition suit is brought, although the defendants may appear and make defense to the action, yet, under the plain language of the statute, “when a judgment is rendered for partition,” it shall be lawful for the court to fix a fee for the attorney for plaintiff.

If, according to the opinion of the majority, it shall be lawful for the court to fix a fee only in uncontested cases, there most probably will hereafter be no uncontested cases.

Our statute is not unlike those in a number of other states which I have examined. In a well considered case in the court of chancery of New Jersey, McMullen v. Doughty, 68 N. J. Eq. 776, 55 Atl. 115, the court had under consideration a statute making it lawful to include in the plaintiff’s costs a counsel fee to be fixed by the chancellor in partition cases. The court used this language: ‘ ‘ Some question has been raised as to the practice in allowing a counsel fee to the solicitor of the complainant out of the whole estate in cases where the defendant is represented by counsel. The decision of the 'chancellor in the recent case of Kellar v. Kellar (no opinion filed) is cited, where he refused to allow a counsel fee to the complainant’s counsel in a partition suit in which the defendant had employed counsel and the case had been litigated. That decision was made before the chancery act of 1902 (P. L. p. 540) No. 91, provided that it should be lawful to include in the complainant’s costs a counsel fee to be fixed by the chancellor on final decree. The chancellor, since the passage of the act of 1902, has indicated that the practice should recognize the change made by that statute, and that, in cases in which the complainant is equitably entitled to a decree for costs, the vice chancellor to whom the cause has been referred should hear the parties on the question of the allowance of a counsel fee to the complainant, and, in advising the final decree, should report to the chancellor what is a reasonable fee to be allowed. If either party is dissatisfied with the vice chancellor’s allowance, he may on notice to the other party apply to the chancellor1 to fix a proper sum.”

This case was again followed and will be found reported in the 68 N. J. Eq. 776, 55 Atl., page 284, between the same parties, where the constitutionality of the act was brought in question, and the court there said: “The objection is first put on the ground that the legislation in question is obnoxious to constitutional restrictions, either that of the Constitution of the United States forbidding any State to deny to any person in its jurisdiction the equal protection of the laws, or that of our Constitution forbidding any general law to include any provision of a private, special, or local character, or that forbidding the passage of any private, local or special law granting to any individual any exclusive benefit. His contention is that, by section 91, a benefit is conferred on successful complainants in chancery suits which is not conferred upon successful defendants. He supports his contention by numerous cases in the State and Federal courts in which legislation conferring power to award allowances to parties in actions against .certain corporations, such as railroad companies, or in actions against such corporations for certain tortious acts, have been pronounced invalid. But the legislation under consideration is capable of being distinguished from that dealt with in the cases cited. It affects a whole class of litigants, viz., complainants. It does not distinguish among them by reason of the nature of the action or the character or conduct of the defendants. Why defendants who might be successful in equitable suits are not included in the benefit of this legislation cannot be considered, if complainants in such suits form a proper class for such legislation.. That they are improperly classified by this act does not seem to me to be so clear that a court of primary jurisdiction would be justified in pronouncing the legislation for their benefit wholly invalid.”

In the case of Pate v. Maples, Chancery Court of Appeals of Tenn., reported in 43 S. W. 740, the court held, quoting the first syllabus, as follows: “Under Shannon’s Code, § 5035, which provides in substance that in partition cases the court may order fees for attorneys for both parties paid out of the common fund, it is not an abuse of discretion to refuse to tax the fund with the attorney’s fees of adult defendants whose interests are not assailed by the complainants.”

In the case of Padgette v. Smith (Mo.), 103 S. W. 943, the court said: “There is no reversible error in the proceedings of the court subsequent to our mandate. An attorney’s fee was allowed, and (as partition was decreed) the statute permits a reasonable fee to be taxed as costs for the attorneys bringing the suit.” And the allowance of the fee was approved under section 4422 of the Revised Statutes of Mo., 1899.

I do not think the statute should be so construed as to make it lawful for the court to fix a fee for the plaintiff’s attorney in uncontested cases only, but if it could be said that this is the correct interpretation of the statute, I would still say, in this particular case, that, although an answer was filed, no defense, was alleged or set up therein, and that therefore it was in fact an uncontested case. This court has not gone into the question of the reasonableness of the fee allowed in this particular case, hence I make no comment thereon. But in about 99 partition cases out of every 100, there is and can be no legitimate defense offered thereto. I am therefore of the opinion that the judgment of the chancery court should be affirmed, and if there were any contest about the reasonableness of the fee allowed, it should be determined by this court. I am authorized to say that Mr. Justice Wood and Mr. Justice Humphreys agree to the views herein expressed.


author: Mehaeey, J.

text:
    Alphin v. Matthews.
    Opinion delivered January 9, 1928.
    1. Mines and minerals — reasonable time for securing release op oil leases. — Where an agreement for the sale of an oil lease required the seller within “next few days or a reasonable length of time” to obtain releases from persons holding outstanding leases, the reasonable time contemplated action within the next few days, and ordinarily means such time as persons using due diligence would require to perform the act, considering all the facts and circumstances.
    2. Mines and minerals — waiver dp time'limit. — The buyer of an oil lease did not waive the requirement that the seller should secure releases from the holders of outstanding leases within a reasonable time by allowing him, after a reasonable time had elapsed, another week to secure the releases, where the releases were not furnished within such week, since if there was any waiver, it was on condition that the releases be furnished within the week.
    Appeal from Union Chancery Court, First Division: J. Y. Stevens, Chancellor;
    affirmed.

      Mahony, Yocum S Saye, for appellant.

      Jeff Davis, for appellee.
   Mehaeey, J.

On September 10, 1925, H. A. Matthews, trustee; entered into a contract with S. M. Led-better and J. D. Faulkner to purchase an oil and gas lease on 80 acres of land in Union County, Arkansas, belonging to said Ledbetter and Faulkner, and under this contract the agreed purchase price, $2,400, together with the lease from the sellers, was placed in escrow pending the examination of the sellers’ title by the attorney for the appellee.

In this transaction J. S. Alphin, appellant, acted as the agent for the sellers.

When the title to the land covered by the lease was examined by the attorney for the appellee, it was found that the sellers could not give a marketable title to an oil and gas lease covering it, because of the fact that oil and gas leases covering portions of the land were outstanding in T. J. Woodley, T. B. Hincy and W. EL Workman, and the attorney for the appellee required that releases from those persons to the sellers be obtained before their title of the lease could be approved as marketable. These leases had not been obtained on September 24,1925, two weeks after the contract of sale was entered into, and Faulkner was pressing Alphin to close the transaction, and stated that unless the transaction was closed without delay, he would call the sale off. At that time it was suggested to appellee that he turn the money which was in escrow over to J. S. Alphin, and that appellee accept the lease which had been deposited in escrow, and at the same time represented to appellee that the. necessary leases to make his title marketable would be forthcoming without delay; and the money was thereupon turned over to J. S. Alphin and the lease delivered to the'appellee, together with a letter which reads as follows :

“El Dorado, Ark., Sept. 24, 1925.
“Mr. Howard A. Matthews, Trustee,
El Dorado, Arkansas.
“Dear 'sir: In re oil and gas lease, north half of southeast quarter section 25, township 17 south, range 15 west, Union County, Ark. S. M. Ledbetter and J. D: Faulkner fee.
“This is to advise you that the sum of $2,400, as evidenced by two cashiers’ checks, which have this date been placed in my hands, will be by me held until such time as the releases of oil and gas leases, which have been prepared for execution by T. J. Woodley and wife, T. E. Hincy, trustee, and wife, and W. H. Workman, trustee, have been properly executed and delivered for recordation. It being our understanding that these are the remaining requirements as made by your attorney with reference to the clearing of title to the oil and gas leasehold rights on the above described land.
“It is understood that you are today filing for record the oil and gas lease, as executed by S. M. Ledbetter and J. D. Faulkner on August 29, 1925, but same is not being finally accepted by you until releases mentioned above have been obtained and filed for record.
“In the event these releases mentioned above are not received within the next few days, or a reasonable length of time, you may, at your election, accept the above described oil and gas lease by waiving your requirements as to the releases, and I will thereupon be relieved from my obligation to hold these checks any longer.
“Tours very truly,
“ (Signed) J. S. Alphin
“J. S. Alphin, Agt.”
“Witnesses: W. IT. Price, E. L. Pye.”

Upon receiving this money at the time the letter was written, Alphin placed it in his general account at the First National Bank of El Dorado and used it for his own purposes, although the letter stated that the $2,400 which had that date been placed in his hands would be held by him until such time as the releases of oil and gas leases had been properly executed and delivered for recordation.

The appellant argues two questions. The first contention is that the releases were obtained in a reasonable time, and, second, that, if the releases were not obtained within a reasonable time, the appellee waived the delay.

The appellee testified in substance that he entered into contract as above set out through the "agent, J. S. Alphin; that the lease and money were placed in escrow with the First National Bank pending an approval of title; that on September 24 Mr.' H. Alphin, son of J. S. Alphin, told him that Faulkner wanted to know whether or not they had made a sale, and that, if be wanted to take the lease, they would obtain quitclaims or releases from these gentlemen, who were out of town; that he told Alphin to give him a letter that these quitclaims would be obtained within a few days and he would accept the lease and place it on record; that Alphin gave him to understand the releases would be forthcoming within a few days; that he turned the money over to Alphin, and Alphin gave him the letter set forth in the complaint, and he placed the lease on record; that on that date he gave Alphin "Workman’s address in Fort Wayne, Indiana, and informed him that Workman was in New Mexico; that, possibly within the next week, he asked Alphin if he had got the releases, and that Alphin informed him no, but that they would be here in a few days; that he spoke to Alphin a number of times, in fact, every time he tow him; that between September 24,1925, and November 21, 1925, he spoke to Alphin fully fifteen times about the releases; that on each occasion Alphin would tell him that he had not received all of the releases, but that he would have them in a day or two; that when he entered into the contract he thought he would have a merchantable title within a week or ten days, and, when it had gone on for six weeks, he saw Mr. Alphin on the street, and told him that he would give him another week; that Mr. Lake said that they had all of the releases except the one from Hincy, and that they had a man down there and would have it tomorrow. Appellee told him this would be all right. When the release came it did not cover the land owned by Hincy; it misdescribed the land, and then appellee told Alphin it had gone long enough, and, since they had had an agreement and he had turned the money over to Alphin, he wanted Alphin to give him back the money, and he would give him the lease back; that he tendered a release of the lease; that the customary time allowed the seller in which to cure the title was from 10 to 15 days in the Union and Ouachita counties oil fields. At the time he purchased the lease it was worth $2,400. There was a little showing of oil in the Stocks well on the Ezell property; that there were six or seven other wells being drilled in that vicinity; that the value of the lease was to be determined on the outcome of the Ohio well. That the Ohio well was abandoned on October .7, 1925; that the value of oil and gas leases fluctuates greatly from time to time, depending on the development of the field where they are located.

On cross-examination appellee testified that he purchased it as trustee, and one-third was to be for himself, one-third for Dr. Falvey, and one-third for R. L. Long; that Mr. Romine later acquired part of Dr. Falvey’s interest, and he thought the Root Refinery acquired part of it; that on the date that the letter was written, September 24,1925, he knew that Workman lived in Indiana, and that the release would have to be sent by mail and forwarded to New Mexico; that when he would speak to Alphin about the progress that was being made in obtaining the releases from time to time, Mr. Alphin would tell him the releases would be here in a day or two, and he would tell Mr. Alphin that that was all right; that they got the release from Hincy one day after the week which he had given them, but that he g’ave them an extra day, and that the release containing the incorrect description arrived within the time which he gave them; that he tendered the release to Alphin at the time, and that they had told them a number of times they could get a correct lease, and are telling them that yet. He does not know whether Oir not they delivered the correct lease to Mr. Marlin, his attorney. That the lease was worth as much on Monday as it was on Saturday; that a few days’ or weeks ’ delay at that time did not affect the rights of the parties more than it had before; that it was customary to give the seller 10 or 15 days to cure the title, but it was not customary to place the lease on record before the title was approved.

J. S. Alphin, testifying for the defendants, said in substance that the only connection he had with the transaction was that Faulkner and Ledbetter made him trustee, and afterwards Lake was made trustee in part; that he had nothing to do with the releases; that Lake was doing all that; that Matthews asked him a number of times if he had got the releases, ¡and that he told him all had been got except the one from Hincy, but had never got it. On Friday Matthews asked him if they had come, and he told him he did not know, he had not seen Lake, and that .Matthews said if he did not get them completed by tomorrow he would call it off; that the leases came on Saturday, but these were incorrect. The property was misdescribed, and Matthews said the lease was, all wrong, and he wanted his money back, and he told Matthews he could get it corrected by Monday. Matthews said that was not the question, he wanted his money back, and he told him he was not going to give it back.

On cross-examination he said that the cashier’s checks were delivered to him on the 24th, the date of the letter, and that he used the money, and that he gave money to Lake and Faulkner two or three weeks, after Matthews demanded the money back; that witness did not have anything to do with the lease on record; that he was a mere tool.

P. Gr. Lake testified in substance that, during the time he was obtaining the releases, Matthews mentioned it to him once or twice, and more particularly on a certain Friday he mentioned he wanted the releases. He could not tell what Matthews said. He sent the releases down by VanH'ook to Hincy. When Matthews told him he would only give him until the following day to get the releases, the release had been made out and sent down, but the property was 'misdescribed. He testified'as to the activity in the vicinity, and that deep sand found east of El Dorado had caused a great demand for this property. People were buying leases as fast as they could get them.

On cross-examination he said that he did not remimber the date that he got the releases from Workman, but he did not think it was within two weeks after Alphin signed the lease; that the money was turned over to Alphin and the lease placed of record because Faulkner said he had two or three chances to sell, and unless the money was turned over to him he would call it off.

J. H. Alphin testified about the lease and about the description being wrong in the deed.

In rebuttal, J. 0. Falvey testified that he put up $800 of the $2,400; that the money was turned over to Alphin, and he talked to Lake several times about it, and Matthews came to him and said he was tired of monkeying with it. Matthews asked him to go see Lake and see if they were not going to do anything about it. Matthews asked witness to go and demand the money, which he did.

At the close of the testimony the court entered a decree in favor of appellee, from which is this appeal.

It is first contended by the appellant that he was entitled to a reasonable time in which to obtain the releases and deliver them to appellee, and that he did not have a reasonable time. The letter given at the time the leases were delivered and the money turned over provides that, in the event these releases mentioned above are not received within the next few days or a reasonable length of time, etc. We think that that alone would mean that the reasonable time should be within the next few days. And Matthews testifies, and this is not disputed, that Alphin gave him to understand the releases would be forthcoming within a few days. Matthews also testified, and it is undisputed, that when he entered into the contract he thought he would have a merchantable title within a week or ten days, and when it had gone on for six weeks, he saw Alphin on the street and told him he would give him another week. He finally told him that it had gone on long enough.

Matthews testified, and this is also undisputed, that he is familiar with the usual agreements in the purchase and sale of leases in Union and Ouachita counties oil fields, and that the customary time allowed the seller in which to cure the title was from 10 to 15 days.

As we have said, this proof is not disputed. The proof also shows that the values and prices in the oil fields fluctuate, and they of course depend largely on whether wells are producing or not, and a piece of property might be thought very valuable at one time and within a few days, thought to be worthless. We therefore conclude from the testimony in this case that the appellant did not obtain the releases within a reasonable time. A reasonable time is such a period as would suffice for the performance, if the person whose duty it was to perform, used in the performance such diligence, care and prudence as a person of ordinary diligence, care and prudence, under the like circumstances, would use in the performance of a like duty. A reasonable time would be such a time as a person using due diligence would require to perform the act, taking into consideration all the facts and circumstances.

It has been said:

“But, apart from these considerations, one general rule may be said to cover the performance of the contract, viz., that it must be performed in a reasonable manner and with reasonable diligence on each side. Where the manner or place of doing an act or the time at which or within which it is to be done is left undefined, it is to be determined by reference to what is reasonable, having regard to the circumstances of the particular case. * * * And the courts have laid down the rule that reasonable time for the performance of acts under a contract is such a period of time as suffices for their performance if the one whose duty it is to perform uses, such diligence in the performance as a person of ordinary diligence and prudence would use under like circumstances.” Dietrich v. U. S. Shipping Board Emergency Fleet Corp., 9 Federal, 2d Series, 733.

The above case cites many authorities in'support of the rule announced.

The next contention of appellant is that appellee waived time. It appears from the evidence that, after an unreasonable length of time, the appellee told appellant that he would give him another week. Therefore, if there was any waiver at all, it was, according to the undisputed proof, on condition that the releases be furnished "within one week. There is no dispute about these facts. They were not furnished within the time fixed. 'Appellee not only said he had seen the appellant as many as fifteen times, but that he finally told him that he had waited long enough on it and he wanted his money, and then gave appellant one week more.

According to the proof, the time was unreasonable, and it was extended for one week only, and, when the releases were not obtained and delivered in that time, appellee was under no duty to accept them, and was entitled to recover his money deposited with appellant.

The decree of the chancellor is affirmed.


text:
    Driver v. Treadway.
    Opinion delivered January 9, 1928.
    Judgment. — m'otion to set aside. — Though a motion for new trial was not filed until more than three days after the verdict, held that, where the trial judge announced that the verdict ought to be set aside, it was his duty to treat the motion for new trial as a motion to set aside the judgment, and he should have set aside the verdict if not sustained by the evidence.
    Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge;
    reversed.

      J. T. Goston, for appellant.

      L. Neill Reed, for appellee.
   Mehaeey, J.

The appellant, J. L. Driver, brought suit in the circuit court of Mississippi County for $500 for breach of contract. The jury returned a verdict for. $1 on January 19, 1927. Court was in session on the 20th and 21st days of January, and then adjourned until the 24th day of January, and on that day, January 24, the appellant, Driver, filed his motion-for a new trial.

Treadway thereupon filed a motion to strike the motion for a new trial from the files, on the ground that it was not filed within three days after the verdict was rendered. The court, in sustaining Treadway’s motion, stated: “The plaintiff was entitled to a verdict for $500, and the verdict ought to be set aside. But the plaintiff did not file his motion for ia new trial within three days after the verdict was rendered, and I cannot consider it.” And the judgment striking the motion for a new trial from the record recites: “The court is without jurisdiction to entertain plaintiff’s motion for a new trial or set aside said verdict, for the reason that said motion was not filed within three days from the date of the rendition of the verdict.”

The only question presented hy this appeal is whether Ihe court could act on the motion for a new trial which was filed more than three days after the verdict was rendered.

The statute reads in part as follows:

“The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision 7 of § 1311, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” Section 1314, Crawford & Moses’ Digest.

The remainder of the section of the Digest provides for the manner of filing motions when the verdict is rendered at or about the closing of the term of court, and authorizes the losing party to present his motion to the judge within 30 days from the date of the verdict or decision. That part of the section, however, is not involved in this appeal.

Appellant contends that the court had jurisdiction and had the right to grant appellant’s motion, although the motion was not filed until more than three days after the rendition of the verdict. The court had the power to set aside the verdict at any time during the term, and a majority of the judges are of opinion, since the lower court announced that plaintiff was entitled to a verdict of $500 and that the verdict ought to be set 'aside, that it was the duty of the court to treat the motion for a new trial as a motion to set aside the judgment, and that he should have heard the motion, and if, in his judgment, the verdict was not sustained by the evidence, he should have set the verdict aside and granted the plaintiff another trial.

Mr. Justice Humphreys, Mr. Justice Kirby and the writer, do not agree to this, their opinion being' that the statute fixing the time in which motions for a new trial shall be filed is mandatory and that the phrase, “unless unavoidably prevented,” authorizes the court to extend the time or permit the motion to be filed after the three days if there is a showing that the person filing the motion was unavoidably prevented from filing it within the three days.

The prior statute on the subject of motions for new trials reads as follows:

“All motions for new trials and in arrest of judgment 'shall be made within four days after the trial, if the term of court shall so long continue, and if not, then before the end of the term, and every such motion shall be accompanied by a written specification of the reasons upon which it was founded.” English’s Digest, chapter •J26, § 131.

In construing that section, this court said:

“More than four days after verdict for the defendant, the plaintiffs below, who are the plaintiffs in error, filed a motion for a new trial, which was stricken from the files on motion of the defendant, and, because the court considered that under the 123d section of chapter 126 of English’s Digest, it had no discretion to entertain the motion. If the circuit court had simply refused, in the exercise of its discretion, to allow the motion for a new trial to remain on file, because filed too late, this court would be slow to interfere with the discretion exercised; but when, as shown by the bill of exceptions, the action of the court was not discretionary, but in obedience to a statute it considered imperative, this court may, if it does not consider the statute imperative, direct the court to use, but not to abuse, its discretion. And it would seem better that statutory regulations concerning the dispatch of business in court should be considered advisory merely, and not destructive of the power of courts to make them comformable to the unforeseen contingencies of legal practice. Courts of original jurisdiction, better than superior tribunals or foreign bodies, can adopt general rules to the exigencies of current business. A golden mean in the administration of justice is found when rules of practice can cause it to be dealt out with certainty and dispatch, but with due regard to accidents that befall and frailties that beset the men that are the agents of such administration. From the considerations of this sort, and from the happily plastic nature of the practice in courts of common law and equity, a distinction has been made between directory and imperative statutes, which has been fully recognized by this court.” Gould v. Tatum, 21 Ark. 329.

This court again said:

“Where a motion filed out of time is considered by the court and overruled, this court will indulge the presumption that the motion was filed with the permission of the court. Fordyce v. Hardin, 54 Ark. 554. The court had the power to consider the motion at any time cluring the term, and the record shows that the court heard the motion at the same term, and overruled it.” Fitzhugh v. Norwood, 153 Ark. 472, 241 S. W. 8.

This court has also said:

“Under the law the verdict of a jury should be in favor of that party who has established the issues of fact for which he contends by a preponderance of the evidence. If the jury hJas not so decided, then its verdict is not correct, and it is the peculiar and exclusive province of the trial court to correct such error by granting a new trial. When the trial court becomes convinced that the verdict is not sustained by a preponderance of the evidence, then it is his duty to set aside that verdict. And if the trial court finds and announces that the verdict is not sustained by ia preponderance of the evidence, then it is his duty to set aside that verdict. And if the trial court finds and announces that the verdict of the jury is against the preponderance of the evidence on a material issue of fact, then he must set aside such verdict. Tie trial court presides over the trial. He observes and hears the witnesses, and has the same opportunity as the jury in this respect, and that is the reason why it is made his peculiar and exclusive function to determine the issue, on a review of the verdict, as to whether it is responsive to the preponderance of the evidence in the cause. This court cannot do that, for the reason that it has no such opportunity. Hence the rule is firmly established by the authority of our own decisions, as well as courts of last resort in many other jurisdictions, that a ruling of the trial court overruling a motion for a new trial and sustaining the verdict of a jury, as in accord with the preponderance of the evidence, will not be reversed and the verdict set aside by the appellate court, even though such court may be convinced that the verdict of the jury is clearly against the weight of the evidence. * * # The trial judge still has control of the verdict of the jury after and during the term it was rendered. Because of his training and experience in the weighing of testimony, and of the application of legal rules to the same, and of his equal opportunities with the jury to weigh the evidence and judge of the credibility of witnesses, he is vested with the power to set aside their verdicts on account of errors committed by them, whereby they have failed in their verdict to do justice and enforce the right of the case under the testimony and instructions of the court. This is a necessary counterbalance to protect litigants against the failure of the administration of the law and justice on account of the inexperience of jurors. * * * We cannot approve the doctrine that it is an invasion of the province of the jury for the trial court to set aside a verdict which he finds to be against the preponderance of the evidence. On the contrary, if he fails to do so, he surrenders his own province, ignores his duty, and by so doing destroys the integrity of the best system that thus far has been devised in this country for the administration of justice.” Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851.

It will be observed that the last case cited holds that the trial judge still has control of the verdict during the"term of court, and the majority of the court, as we have already said, holds that the trial court had control of the verdict, and, since he stated that the verdict was wrong and should be set aside, it became his duty to do so.

It is unnecessary to refer to additional authorities, but, for the reasons above given, a majority of the court is of opinion that the circuit court committed error in its refusal to set aside the verdict, and for this error the case must be reversed, and remanded with directions to exercise his discretion as to whether he should set aside the verdict and grant the plaintiff another trial.


text:
    Henson v. Braden.
    Opinion delivered January 9, 1928.
    1. Certiorari — insufficiency of abstract. — A petition for certiorari to review the chancellor’s refusal to discharge petitioners for an alleged violation of the stock law, alleging that the stock law election was void, will be denied where there was no abstract of the orders of the county court, and no agreed statement of facts, making it impossible for the Supreme Court to determine whether the election was valid or not.
    2. Certiorari — when decree affirmed. — When it is impossible to pass upon the questions presented intelligently, without exploring the transcript, the decree will be affirmed.

      Certiorari to Craighead Chancery Court, Western District; J. M. Futrell, Chancellor;
    writ denied.

      Pemx ■& Barrett, for appellant.
   Mehaeey, J.

Sam Henson and E. H. Caple each applied to the chancellor, J. M. Futrell, for a discharge of each petitioner from custody and imprisonment by the sheriff of Craighead County. It is stated that each of the petitioners was convicted in the municipal court- on the 25th day of April, 1927, ón a charge of having permitted their stock to run at large in an alleged stock-law district comprising a number of townships in Craig-head County. It is alleged -that each of them wehe fined $5 and costs, and that, upon failure to pay said fine and costs, a commitment was issued, directing the constable to take petitioners into custody and place them in the Craighead County j'ail.

The sheriff and constable waived service, and the case was tried, and the chancellor refused to discharge the petitioners, and remanded them back into the custody of the sheriff.

•It is alleged that petitioners were being unlawfully imprisoned, because they say that the alleged stock-law district was not legally created and established.

The application here is for a writ of certiorari to the clerk of the chancery court for the Western District of Craighead County, Arkansas.

Appellant’s-contentions are, first, that'there was no proper order of the county court, and that the election was void because based on a void order of the county court; second, that there was a different question submitted to the voters than that contained in the election notice or proclamation of the sheriff; that the notice was misleading and deceiving to the voters; third, that no election was held in the second, fourth and fifth wards of Jonesboro, which contains a large part of the population of the district; and fourth, that the election judges of the last preceding general election did not act as the judges of the special election.

Appellants do not abstract tbe order of tbe county court, and from tbe abstract made it is impossible for this court to tell whether there was or was not a valid order of the county court. There is no abstract of the petitions, no abstract of the orders of the county court, and no abstract of the agreed statement of facts, so that it is impossible to tell from the abstract whether la different question was • submitted to the voters than that contained in the proclamation. And, the election proclamation not being abstracted, it is impossible for this court to say whether it was misleading and deceiving to the voters or not. And without an abstract of the agreed statement of facts we cannot say that the order of the chancellor was erroneous, nor can we tell from the abstract made whether the election was void or valid.

Buie No. 9 of this court provides that, in all civil cases, the appellant shall file with the clerk of this court, when his case is subject to call for submission, an abstract or abridgment of the transcript setting forth.the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all the questions presented to this court for decision. A majority of the court are of the opinion that the appellant has wholly failed to comply with that part of the rule requiring the filing of an abstract or abridgment of the transcript setting forth the material parts of the pleadings, proceedings, facts and documents relied upon.

• This court has many times held that, when it is impossible to intelligently pass upon the questions presented without exploring the transcript, the decree will be affirmed. Flake v. Mill, 130 Ark. 257, 197 S. W. 33; Power Manufacturing Co. v. Arkansas Rice Growers’ Assn., 170 Ark. 771, 281 S. W. 379.

For a failure to comply with Buie 9 of this court the petition must be denied.