text:
    Grand National Bank of St. Louis v. Taylor.
    Opinion delivered January 23, 1928.
    1. Evidence — resolution of bank authorizing loan. — Where a hanlc hy resolution authorized its officers to effect loans from a named hank from time to time, the fact that the name of the hank’s president was affixed thereto by its cashier did not make it inadmissible in evidence, if it was in fact the action of the bank’s directors.
    2. Evidence — minute book of corporation. — The minute book of a corporation, when identified, is competent evidence as to recitals therein, and, even though unsigned, the minutes may be used to prove what took place at the meeting and that a resolution was passed thereat.
    3. Corporations — false entries in minute book. — A corporation is not bound by forged, false, and simulated entries in its minute book, unless, knowing them to be such, it neglects to correct them, and some innocent third person has relied thereon to his prejudice.
    4. Corporations — effect of book entries. — Where a corporation seeks to destroy the effect of entries on its books, which purport to be regular records of proceedings of its directors or stockholders, it must offer testimony of a more conclusive character than such as merely creates a suspicion that there was an irregularity in the manner in which the books were kept.
    5. Banks and banking — validity of resolution of bank. — The resolution of a bank authorizing its officers to effect loans from time to time in the bank’s behalf from a designated bank was sufficiently established as being genuine to be admissible in evidence, where no' director denied validity of the resolution, and the bank’s president admitted it was genuine, though he did not sign it, and the resolution was the only authority by which money was borrowed by the bank or rediscounted from other banks.
    6. Banks and banking — authority to borrow money. — Where a bank by resolution authorized its officers to effect loans for the bank from a certain bank, and at the bottom thereof there was a recital that the resolution included all the bank’s correspondents, testimony that copies of the resolution were made and sent to other banks, from which the bank obtained loans with the names of the other banks inserted in the resolution, was competent to show that the directors regarded the resolution as a compliance with Crawford & Moses’ Dig., § 700, as amended by Acts 1923, p. 532, § 18, and broad enough to cover borrowing of money from other banks than the one named.
    7. Banks and banking — validity op pledges and discounts.— Under Crawford & Moses’ Dig., § 700, as amended by Acts 1923, p. 532, § 18, pledges of collateral security for loans or rediscounts of the bank’s paper are prohibited and made void without the action of the bank’s directors authorizing the same.
    8. Banks and banking — authority to rediscount paper. — Under Crawford & Moses’ Dig., § 700, as amended by Acts 1923, p. 532, § 18, it is not necessary that there be express authority in the minutes of a 'bank in each instance that a loan or rediscount is effected by the 'bank, but the bank may draw a resolution to cover loans or rediscounts to be made during the period of one year.
    9. Banks and banking — innocent- holder op collateral. — A correspondent bank rediscounting paper on a State bank under arrangements with the State bank’s cashier, authorized by a resolution of the State bank’s directors to effect loans and to rediscount paper, in substantial compliance with Crawford & Moses’ Dig., § 700, as amended by Acts 1923, p. 532, § 18, became the innocent purchaser of notes before maturity without notice of defenses thereto, and in liquidation of the State bank could claim them and money collected therefrom as against the Bank Commissioner.
    Appeal from Franklin Chancery Court', Ozark District ; J. V. Bourlcmd, Chancellor;
    reversed.

      Albert T). Nortoni and Grover G. Garter, for appellant.

      Hill, Fitzhugh & Brizzolara, for appellee.
   McHaney, J.

Prior to January 22, 1926, the People’s Bank of Ozark was a banking corporation under the laws of Arkansas. On that date its doors were closed and its affairs taken over by the State Banking Department for liquidation as an insolvent institution.' L. L. Ford was its president, J. T. Greer vice president, and Finis E. Stockton its cashier and active officer. Like too many small banks, its business was very largely intrusted to and its destiny largely controlled by one man — its cashier, Finis E. Stockton.

Appellant is a national banking corporation of St. Louis, with Mr. W. O. Johnson as its vice president and cashier. Johnson, being a friend and acquaintance of Stockton of about ten years’ standing, solicited the account of the People’s Bank, through Stockton, for appellant. As a result thereof Stockton went to St. Louis in August, 1925’, and, on the 25th, opened an account with appellant, by rediscounting to it notes of customers held by his bank, and receiving a credit of $19,733.55. Said notes were indorsed, “People’s Bank of Ozark, F. E. Stockton, Cashier.” These notes are not involved in this controversy, as they were all thereafter taken up by the People’s Bank before failure, bufare mentioned to show the history of the whole matter.

On November 30, 1925, Mr. Johnson, for appellant, wrote Stockton in part as follows:

“Finis, I have been thinking more about handling your entire St. Louis business, and in this connection wish to say that, if you still have bills payable, we would be more than pleased to take this up and carry it for you, and with the view of taking care of your needs for the coming year. If you would be interested in figuring on the account along this line I will be glad to run down and see you, and feel quite confident that it can be arranged in such a way as would be very agreeable and satisfactory to you, and then, too, in doing business with some one you know it is worth something to feel that when you are in need of an accommodation you' can know where to go for it. ’ •
“I will be glad to have you think this matter over and advise me, and, if you are interested, will be a pleasure to me to run down and pay you a visit and line the account up.
“Awaiting your reply with the assurance that it is a pleasure to us when we can be of service to you, and with kindest personal regards, I am,
“Yours very truly,
“Vice-Pres. & Cashier.”

On December 8,1925, Stockton replied as follows:

“Dear Will: I was glad to get your letter, and had been thinking along the same line myself. Things have been coming slow, but it is going to come out all right. I had rather come up and see you, but it will be after the first of the year before I can come. I am sending you a little bunch of notes that I wish you would handle like you did the other ones.
“I am willing to give you the whole St. Louis a/c after the first of the year. We still have $30,000 bills payable, $15,000 in Fort Smith and $15,000 in St. Louis.
“I am checking on you for part of this, and if you cannot handle this $10,051.25 for sixty, give me credit for it temporary, and I will fix it as you wish. I want to see you ¿nd go over the whole proposition with you. There would be a personal friendship about doing business with you that would be worth while. We will take up the other customer notes you have soon. This list of notes is some that I have renewed the last few days, and are on some of our best customers.”

Appellant accepted these notes, rediscounted them for 60 days at 8 per cent, and credited the People’s Bank with the proceeds, $9,883.73, on December 10, 1925. On January 2, 1926, appellant rediscounted notes for the People’s Bank of the face value of $30,882.52, deducting the discount at 8 per cent, for 30 days and crediting its account with the balance. On January 14 and 16 like rediscounts and credits were made on notes aggregating $10,171.95 and $36,075.90, respectively, the credits being $10,104.14 and $35,594.90, respectively. The People’s Bank did not execute notes to appellant and deposit its customers ’ notes as collateral, but rediscounted bills receivable for 30 or 60 days at 8 per cent., with an agreement to take them up at that time. As a result of all these transactions, appellant had on hand, at the time of the failure of the People’s Bank, paper of the face value of $69,925.72, of which $36,779.51 in notes were indorsed “without recourse,” and $33,146.21 in notes bearing the unqualified indorsement of the People’s Bank. During’ all this time the People’s Bank, by its cashier or assistant cashier, was checking out the funds to its credit in appellant bank in the usual course of business and for the uses and purposes of the bank, and on January 22 the last check was cashed, which resulted in an overdraft on appellant’s books of $2,938.67.

When this account was opened in August, 1925, Stockton told Johnson he had authority so to do by virtue of a resolution of the board passed in February, 1925. This resolution is as f ollows:

‘ ‘ Resolved, that the president, vice president, cashier and assistant cashier are, and each of them is, hereby authorized to effect loans from time to time in behalf of this bank from the National City Bank of St. Louis, Missouri (the proceeds of such loans to be credited this bank by National City Bank on its books), and to renew or extend the same from time to time; and for such loans (and any and all extensions or renewals thereof) to make, execute- and deliver the promissory notes of this bank, and to pledge as collateral security for such loans (and any and all extensions or renewals thereof) any of the bonds, stocks, bills receivable, bills of exchange or other securities of this bank, and that such officers are also respectively authorized'to rediscount, from time to time, Avith the National City Bank of St. Louis for this bank any of the bills receivable, bills of exchange and acceptances held and owned by this bank, and deliver any collateral securing the same, respectively; and may secure such rediscounted paper in the manner above provided for securing loans made by the National City Bank of St. Louis to this bank on its notes or'otherwise. The above resolution was passed, and includes all our correspondents. ’ ’

This resolution appears in the minute-book of the People’s Bank in connection with the minutes of a meeting of the board of February 3, 1925. The president of bank, L. L. Ford, says that he did not sign the resolution, or the minutes — that his name Avas signed by Stockton without his authority — 'but that he attended the meeting on that date, and that “we passed a resolution like that.” It is admitted that, acting under the authority of the above resolution, the People’s Bank borrowed money from the National City Bank of St. Louis, the Merchants’ National Bank of Fort Smith, the Bankers’ Trust Company of Little Rook, and rediscounted the notes heretofore set out to appellant, with all of which Mr. Ford was cognizant, except the dealings with appellant.

After the People’s Bank was taken over by the Bank Commissioner, appellant presented its claim to the liquidating agent, exhibiting said notes, for the full amount thereof, with interest, which was disallowed, and the court then made an order directing appellant to deliver same to the liquidating agent, to be held by him in a separate account pending a final hearing by the court, and this order was complied with by appellant. Thereafter it brought this action to recover possession of said notes and for the allowance of its claim to the extent of the notes bearing the open indorsement of the People’s Bank.- On a hearing the court found “that the plaintiff (appellant) took from Finis E. Stockton, cashier of the People’s Bank, in the form of rediscounts, notes of the People’s Bank,” etc., describing the dates and amounts rediscounted and credited, as already set out. And further, “that the amounts so credited to the People’s Bank by the plaintiff, in its account with it, were all drawn out from the plaintiff bank by Finis E. Stockton, as cashier, prior to the failure of the People’s Bank.” The court further found that the cashier did not have authority from the board of directors to “rediscount said notes,” and that appellant was not an innocent purchaser thereof, and thereupon entered its decree denying the relief prayed, from which comes this appeal.

1. We are of the opinion that the resolution of February 3, 1925, was sufficiently established to justify its admission and consideration by the court. It is true that it is a typewritten sheet attached by a clip to page 22 of the minute-book containing the minutes of that date, and that the name of the president was affixed by Stockton. That fact, of course, did not add to its evidentiary value, neither did it destroy it, if, in fact, it is the genuine action of the board. If the board in fact passed this resolution, or one like it, as it did, according to Mr. Ford, president, then, whether it was properly attested or not could make no possible difference, as the attestation is merely evidence of the action taken by the board. The minute-boolc of a corporation, when identified, is competent evidence as to all recitals contained therein, and, even though unsigned, the minutes may be used to prove what took place at the meeting, and that a resolution was passed thereat. Cook on -Corp., 8 ed., vol. 3, p. 2967. Of course the corporation would not be bound by forgéd, “false and simulated entries thereon, unless, knowing them to be such, they have neglected to correct them, and some innocent third person has relied thereon to his prejudice.” 7 R. C. L., p. 155. But, as stated by the same authority on the same page, “when a corporation seeks to destroy the effect of entries on its books, which purport to be regular records of the proceedings of its board of .directors or stockholders, it should offer for that purpose testimony of a more conclusive character than such as merely creates a suspicion that there was an irregularity in the manner in which the books were kept.” Not only did the directors not deny the validity of the resolution of February 3, but the president, Mr. Ford, virtually admitted that it was the genuine action of the board, although he did not sign it, and that it was the only authority by which money was borrowed or notes rediscounted from the three other banks, as there was no other-such resolution in the -minute-book. The minutes of the next meeting show that the minutes of this meeting were read and approved. We therefore conclude that this resolution was the genuine action of the board.

2. The next inquiry is, whether it was authority to rediscount these notes to appellant, and whether it met the requirements of the Banking Act, § 700, -C. & M. Dig., as amended by § 18 of act 627 of 1923, p. 515. It will be noticed that the authority conferred in the body of the resolution was to borrow money and pledge its securities, and rediscount its bills receivable from and with the National City Bank of St. Louis. Written at the bottom of the page after the resolution is: “The above resolution was passed, and includes all our correspondents.” Appellant offered to prove by Ralph Floyd, assistant cashier, that copies of this resolution were made and sent to the other banks, from which they obtained loans, with the names of such other banks inserted in the place of the National City Bank, to show the authority in the premises, but the court refused to permit such testimony. We think this was competent testimony, as it showed that the board regarded this resolution as broad enough to cover the borrowing of money from banks other than the National City of St. Louis. While appellant was not one of its correspondents at the time the resolution was passed, it did become such, and all the transactions occurred within one year from the date thereof. Neither was a copy of this resolution presented to appellant, and it did not see it until after the failure, yet Stockton assured Mr. Johnson that he had the authority by virtue of this resolution, and we think he did. Section 18 of said act 627 of 1923 reads as follows:

“That § 34 of act 113 of the Acts of the General Assembly of 1913 be so amended as to read as follows:
“ ‘All pledges or rediscounts made by any bank organized under the laws of this State, as collateral security for money borrowed, of any of the bills, notes, bonds or other assets owned or held by it, without the prior express authority reflected in the minutes in each instance, or for not more than one year of its board of directors, as also all such pledges or rediscounts made from and after the date when this amendment to this act takes effect, the face value of the principal whereof exceeds, at the time when the same are made, in the aggregate, of all of the collateral of said bank then securing the said loan, one and one-half times the principal sum of the said loan, to the extent of said excess shall be in all respects null and void, and the said bank may recover the same or the actual value of such parts thereof as have been disposed of by the lender; provided, that the said margin of said collateral over the amount of said loan may he increased upon the prior written consent of the Bank Commissioner in each instance.”

The above statute is almost, if not entirely, unintelligible. We have examined the original bill which became act 627, as well as the enrolled copy thereof, and find same correctly copied in the printed Acts. Section 700 of C. & M. Digest, which this section amends, takes the place of, and therefore repeals, reads as follows:

“The president, cashier or other officer or employee shall have no power to indorse, sell, pledge or hypothecate any notes, bonds or other obligations received by said corporation for any money loaned, until such power and authority shall have been given' such president, cashier or other officer or employee by the board of directors, a written record of which proceeding shall first have been made; and all acts of indorsing, selling, pledging and hypothecating done by said president, cashier or other officer or employee, without the authority from the board of directors, shall be null and void.”

We hesitate to believe that it was the intention of the Legislature to repeal this wholesome statute, yet it would appear from the language of said § 18 that the only thing made null and void is the depositing or pledging of collateral to secure a loan in excess of “one and one-half times the principal sum of said loan,” and then only to the extent of the excess. But we are of the opinion that it may be inferred from the language in the first part of the section that pledges of collateral security for loans or rediscounts of the bank’s paper are prohibited and made void without the prior action of the board authorizing it, and we so hold, regardless of the loose manner in which said section is drawn. And we further hold that the act does not require this “express authority reflected in the minutes in each instance” that a loan or rediscount is consummated, but that the resolution may be drawn to cover all loans or rediscounts to be made during a period of one year, as this requirement is in the alternative in the act. This section was enacted for the benefit of the bank, its stockholders and depositors, to prevent, as far as possible, the officers from making way with the assets of the bank for their private purposes. We think it is conclusively shown, and the chancellor so found, that all the funds realized from these rediscounts were properly checked out by an officer of the People’s Bank for the uses and benefit of said bank, including the amount of the overdraft, $2,938.67. We therefore conclude that this resolution of February 3, 1925, was sufficient authority to authorize Stockton to rediscount the notes in question,'and that it was, to say the least, a substantial compliance with said § 18 of act 627 of the Acts of 1923.

3. We think it necessarily follows, from the conclusions heretofore reached, that appellant was an innocent purchaser of said notes, and acquired same in good faith before maturity and without any notice of any defenses thereto. It is not claimed that there are any defenses to the notes by the makers thereof, but the principal contention made by counsel for appellee is that the notes were negotiated without authority from the board, which we have already decided adversely to appellee’s contention. The fact that Stockton drew a draft on the bank in August, prior to having’ arranged for the negotiation or rediscount of the first notes, is not sufficient to put appellant on notice that Stockton was without authority. And the fact that they did not demand a certified copy of the resolution of February 3, 1925, before accepting any of the rediscounts from Stockton, is explained by Mr. Johnson’s confidence in Stockton, who told him sucia a resolution was passed, and by his desire to get the account of the People’s Bank. Good business judgment would probably suggest that to have done so would .have been the better course to pursue, but the law does not require the discounting bank to obtaiaa a copy of such resolution, but only that such resolution shall have been passed by the borrowing baiak.

We coaaclude therefore that appellant is entitled to the notes which it delivered to the Baiak Commissioner, and which are yet in his hands, as well as all money collected by the Bank Commissioner thereon, if any, and that the Bank Commissioner, or his agent in charge thereof, should surrender and deliver up to the appellant all such money aforesaid.

The judgment of the chancery court is therefore reversed, and remanded with directions to enter a decree in accordance with this opinion. It is so ordered.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Wilkerson v. Fudge.
    Opinion delivered January 23, 1928.
    Appeal and error — failure to abstract testimony. — Under Supreme ■Court rule 9, where ’ appellant in his abstract and brief merely stated what he conceived the facts were, and did not set out the substance of each witness' testimony, nor abstract the judgment, the motion for new trial and the order overruling it, the judgment of the trial court must be affirmed on motion.
    Appeal from Independence Circuit Court; H. L. Ponder, Special Judge;
    affirmed.

      J. Paul Ward, for appellant.

      S. M. Casey, for appellee.
   McHaney, J.

This is an appeal from a judgment against appellant, holding him jointly liable with S. S. Wilkerson and Robert Wilkerson on a promissory note for $411 in favor of ¡appellees. Counsel for appellees have filed a motion to affirm the case for failure to comply with Rule 9 of this court, in that' appellant failed to abstract the pleadings, the evidence, the instructions, the judgment of the court, the motion for a new trial, if one was filed, and the order overruling-it, if one was made. The abstract and brief as originally filed on behalf of appellant failed to comply with said rule in the above particulars, and, after counsel for appellees had filed his brief urging an affirmance on this account, appellant applied to and obtained leave of this court to comply with said rule. He thereafter filed an amended abstract, setting out the instructions of the court., and interlined in his statement of facts page references to the transcript.

Ten witnesses testified in the case, but this evidence is not abstracted. Appellant contents, himself by a statement of what he conceives the facts to be, but does not set out the substance of each witness’ testimony. He does not abstract the judgment of the court, nor the motion for a new trial, if one, and the order overruling it, if one, and we cannot tell, without an examination of the record, whether there was a motion for a new trial, and, if so, whether the errors complained of were assigned in the motion for a new trial.

Under this state of facts we feel that we will have to sustain the motion to affirm for the noncompliance with this rule. The judgment is therefore affirmed.


author: Hart, C. J.,

text:
    Collins v. Collins.
    Opinion delivered January 30, 1928.
    1. Divorce — sufficiency of evidence. — In a suit for divorce, where both parties asked for divorce and reconciliation was improbable, the evidence, although unsatisfactory, held to justify g'ranting divorce to the wife on the ground of indignities rendering her condition in life intolerable.
    2. Husband and wife — taking title in wife’s name. — -Where the title to property is taken in the wife’s name but the husband pays a portion of the purchase price, there is a presumption in law that his money thus used was intended as a gift to his wife, but this presumption is rebuttable by any evidence, including antecedent and contemporaneous declarations or circumstances which tend to prove the intention of the parties who furnished the consideration for the property.
    3. Trusts — evidence of resulting trust. — In a divorce suit evidence held not to justify holding that there was a resulting trust giving the husband an interest in the homestead to which the wife had title, but of which the husband paid a part of the consideration.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bowrlomd, Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    Alice Collins brought this suit in equity against F. D. Collins to obtain a divorce on the statutory ground that her husband had offered her such indignities to her person as to render her condition in life intolerable. F. D. Collins filed an answer in which he denied the allegations of the complaint, and, by way of cross-complaint, asked for a divorce on the same statutory ground. He also asked for a trust to be declared in his favor in their home place, the title to which had 'been taken in the name of his wife. His wife filed a response to the cross-complaint, in which she denied its allegations and averred that the title to their homestead was in herself.
    The record shows that the parties to this action married in September, 1918, and lived together as husband and wife until the first day of April, 1926. Each of the parties had been married before, and had children at the time of their intermarriage. The husband had a home in Van Burén, Arkansas, in which he lived at the time of their marriage. Subsequent to their marriage they purchased a home in Fort Smith, in Sebastian County, Arkansas, and moved into it, and lived there until their separation. The title in their home in Fort Smith was taken in the name of the wife, and she paid $1,000 of the purchase money at the time of the purchase. The price agreed to be paid for the home was $2,750.
    According to the testimony of the wife, she continued to make monthly payments on the note for the deferred payment of the purchase price, which bore eight per cent, interest, until some time in April, 1920, when there was a balance due of $1,539. Her husband gave her a check for this amount, and told her to finish paying for the house. According to her testimony, the title to the property was taken in her name because her husband wished to provide a home for her, and because her children were helping to support the family. Her husband had some insurance for the benefit of his children of a former marriage, and, for that reason, thought he ought to put the title to the home in his wife’s name. The testimony of the wife in this respect is corroborated by that o.f her daughter.
    According to the husband, it was understood, at the time the home was purchased, that he was to have an interest in it, and lie made the monthly payments after the payment of the first $1,000, and then gave his wife the check for $1,539 to finish paying for their home, with the understanding that he was to have an interest in the property. Other evidence will be stated and discussed in the opinion.
    The chancellor denied the divorce to both parties, and their respective complaints were dismissed for want of equity. The chancellor further found that the husband paid $1,539 toward the purchase price of their home with the understanding- that he should have a joint interest in the property with his wife. It was further decreed that he have a lien on the homestead for the sum of $1,539, taking effect on the first day of April, 1920, and that the sum draw interest at six per cent, from that date. The plaintiff has duly prosecuted an appeal to this court.

      Holland & Holland and E. D. Chastain, for appellant.

      Roy Gean, for appellee.
   Hart, C. J.,

(after stating the facts). On the question of the divorce we do not deem it necessary to make an extended statement of the evidence or to discuss it in detail. Each party sought a divorce from the other on the statutory ground of indignities to the person. The parties to the action were married in September, 1918, and lived together as husband and wife until the first of April, 1926. The record shows, that they got along very well together until about two years before their separation. The testimony of the plaintiff and of the defendant shows that they were continually quarreling’ with each other for the past year or two of their married life. Their testimony, however, is in irreconcilable conflict as to who was to blame for their quarrels.

According to the testimony of the wife, her husband was continually quarreling with her, and on one occasion threatened to strike her, and on another occasion told her that he had been advised that he could obtain alimony from her, and was continually guilty of such abusive language and ill' treatment that she could not occupy his bed, and that she moved upstairs and stayed with her daughter in the homestead, the title to which was in her name. The responsibility for their quarrels was placed upon the husband by the testimony of a daughter of the wife by a former marriage. She is also corroborated to some extent .by her son-in-law.

On the other hand, the husband, in his testimony, places the entire responsibility for their quarrels in the nagging disposition of bis wife. He testifies that she got. tired of him because he was in ill health, and was continually nagging and quarreling at him.

The testimony is not very satisfactory on the question of divorce, but, after considering the whole of the testimony carefully and the situation and condition of the parties, we are of the opinion that the preponderance of the evidence entitles the wife to a divorce. It is perfectly apparent from the testimony of both of them that they were continually quarreling with each other and that there aauis no likelihood of their becoming reconciled to each other. Each of the parties had children by a former marriage, and there aauis no hope of them ever living together again. Hence ave are of the opinion that a preponderance of the evidence aaIH sustain a decree granting the plaintiff, Alice Collins, a divorce from the defendant, F. D. Collins, on the statutory ground of indignities rendering her condition in life intolerable. Scales v. Scales, 167 Ark. 298, 268 S. W. 9.

On the question of a resulting trust in favor of the husband, Ave also find that a preponderance of the evidence sustains the contention of the AAÚfe that the title to the homestead Avas taken in her name, because she made the first payment on it, and that the payment of $1,539 was paid by the husband as an adAmncement or gift to her. Where the title to property is taken in the name of the wife, even Avliere the husband has purchased and paid for the same, there is a presumption in laAV that his money thus used was intended as a gift to his wife, and the law does not imply a promise on her part to return the money or to divide the property purchased, or to hold the same in trust for him. Ilis conduct Avill be referable to Ms duty and affection rather than to a desire on Ms part to have his wife hold the property as a trustee for him. This presumption, however, may be rebutted by any evidence, including antecedent and contemporaneous declarations or circumstances, which tend to prove the intention of the person who furnished the money to purchase the estate, that the grantee should hold as a trustee. Wood v. Wood, 100 Ark. 370, 140 S. W. 275; Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867; Mann v. Mann, 164 Ark. 43, 260 S. W. 731; and Dillard, v. Battle, 166 Ark. 241, 266 S. W. 80.

On this branch of the case we again find the testimony in irreconcilable conflict. The husband testified that, when the homestead was purchased, the3r bought it jointly for their home and it was their intention to live there as husband and wife with both sets of children. By agreement'the deed was made in the name of the wife, and he sold his homestead in Van Burén for the purpose of finishing paying for the homestead in Fort Smith. After the wife made the first payment of $1,000, the husband, according to his testimony, began making-monthly payments on the place until of the principal and interest there was only left unpaid a balance of $1,539. He sold Ms homestead in Van Burén and gave his wife a check for $1,539 for the purpose of. paying out their home in Fort Smith. This was clone with the understanding that he was to have a .joint interest in the property.

On the other hand, according- to the testimony of the ■wife, the original price of the homestead in Fort Smith was $2,750. She paid $1,000 on it, with the understanding that the title should be taken in her name. This was done because her husband had some insurance for the benefit of his children by a former marriage and it was his intention that her own children should inherit from her the homestead which was purchased in Fort Smith. Her son and daughter were working at the time, and lived with her, .paying board. She took $30, which her son paid for board, and paid it monthly toward reducing .tire principal and interest of the balance due on the purchase money. She admitted that her husband gave her money monthly during this period of time,' but states that she used it for their living expenses, and that her husband so understood it. She admitted that he gave her $1,539 on the first day of April, 1920, with which to finish paying the purchase price of the place. She stated, however, that this was a gift, and that she refused to accept it until it was expressly understood that it -was a gift, and that her husband was to have no interest in the place. Her testimony in this respect is corroborated by that of her daughter.

It is also a circumstance in her favor that the husband did not at that time ask that the title be.changed so as to give him a j-oint interest in the place, and that no claim was made by him for a joint interest until after their separation and the bringing of this suit.

Under these circumstances we are of the opinion that the husband failed to establish a case for a resulting trust in his favor for a joint interest in the place.

The result of our views is lhat the decree will be reversed, and the cause will be remanded with directions to the chancery court to grant a divorce to the plaintiff, Alice Collins, and to dismiss the complaint of F. D. Collins for a divorce for want of equity, and to dismiss also his complaint for a resulting trust in the homestead for want of equity. It is so ordered.


text:
    Temple Cotton Oil Company v. Skinner.
    Opinion delivered January 30, 1928.
    1. Master and servant — assumed risk. — An employee assumes all the risks naturally and reasonably incident to the service in which he engages, where hazards of the service are obvious and within the apprehension of a person of his experience and understanding.
    2. Master and servant — jury question. — In an action by a mill employee for injury from falling sacks of meal, evidence held . to make the assumption of risk a jury question.

      3. Evidence — testimony as to conditions op injury. — In an action by a mill employee for an injury done by falling- sacks of meal, ' a witness who examined the scene of the accident shortly thereafter was competent to testify to the conditions under which he found the sacks immediately after the accident.
    4. Trial — completeness op instruction. — If an instruction undertake to tell the jury when a verdict should be returned for either party, it should be complete in itself; and where the body of the instruction does not contain every material - fact proper to be established, the stereotyped “find for the plaintiff” or “for the defendant” should be omitted.
    5. Trial — inconsistent instructions. — Separate and disconnected instructions, each complete and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole.
    6. Trial — incomplete instruction. — An instruction in a personal injury case, which leaves to the jury the determination of the defendant’s conduct as the sole issue, but concluding- with the phrase, “you will find for the plaintiff,” is inherently erreonous in leaving- out of consideration the issues involved as to, the plaintiff’s contributory negligence and assumption of risk.
    Appeal from Hempstead Circuit Court; James II. McCollum, Judge;
    reversed.
    STATEMENT OP PACTS.
    This was an action by Gordon. Skinner against the Temple Cotton Oil Company to recover damages for a personal injury, which, he alleges, was caused by the defendant’s negligence while he was engaged in the performance of his duties as a servant of said company.
    According to the testimony of Gordon Skinner, he was twenty-five years old on the 15th day of October, 1926. He was injured on the 1st day of May, 1926, while engaged in loading meal and hulls on local orders for the Temple Cotton Oil Company at its cotton mill at Hope, Arkansas. He had been employed by said company since August, 1925. His duties were loading out meal and feeding the hull bran machine. He did not stack any hulls. In March, 1926, he was moved to the warehouse to load out cottonseed meal on local orders. He was engaged in this work at the time he was injured. When-over a ticket was brought from the office, it was his duty to fill the order called for by the ticket. The instructions were indicated on the ticket. He loaded out the orders, with the help of the driver who came for the meal. For convenience in loading out the meal, different grades of meal were stacked separately in different parts of the warehouse. Each section had its stacks between a row of posts about sixteen feet apart. The method of stacking in the sections ivas to begin at the wall of the warehouse at which wore laid lengthwise six sacks of cottonseed meal against the Avail on the south for support. In like manner the sacks Avere placed on the top of each other to a height of about twenty feet. The same process was adopted in placing other sacks against these Avhich Avere piled next to the Avail. After the sacks reached a height of about seven or eight feet, they Avere jammed against each other for the purpose of tying them and thus rounding out'the section. The first tier of sacks Avas piled to its full height against the wall, and the rest of.the sacks of meal were piled down somewhat like stairsteps to the front for the purpose of better enabling the servants to handle the same while stacking or nnstacking them. The section consisted of six tiers, each running from the aisle in the center of the warehouse back to the south'wall. The sacks in each tier Avere first unloaded.
    The accident occurred about 1 :30 p.m. According to the plaintiff’s testimony, he had taken the sacks from a tier in the back against the Avail. There Avas a sack lying- off to one side, and the plaintiff Avas trying to get it, Avhen a pile in another section fell on him. None of the sacks had been taken off of the stack that fell on the plaintiff. The plaintiff did not examine the stacks for the purpose of seeiug- Avhefher they were stacked properly, and it was not his duty to do so. He had not noticed that there A\ras any defect in the stacking of the pile of' sacks of meal that fell on him. The plaintiff was severely injured, and suffered great pain for a long time. According to the eAddeuce of physicians in his behalf, he was permanently injured.

      Webber Skinner, a brother of the plaintiff, was also a witness for him. According to his testimony, he was working at the oil mill of the defendant in what was known as the shaker room at the time his brother was injured. As soon as he heard of the injury to his brother, he ran to him. They had taken the sacks of meal off of his brother and had laid him out in the aisle when he got there. Witness saw the stack from which the sacks of meal had fallen on his brother. He was asked to tell how it was stacked, and we copy from the record his testimony on this point as follows:
    ££A.- It was stacked kindo’ looped in front, and another part here stacked up against the walls; stacked properly part of the way, but on top looked like it was just throwed up there. Q. It was stacked up how high? Á. About fourteen or fifteen sacks‘high. Q. You say on top it was just laid crossways on one another? A. Yes isir, Q. Wasn’t stacked property? A. No sir.”
    The witness said that the defect in stacking the sacks of meal could not have been noticed unless a close examination was made. He also testified that he knew when piles of sacks of cottonseed meal were stacked property. He had never stacked sacks of meal, but he had seen them, stacked, and knew how it ought to be done.
    According to the evidence introduced by the defendant, the different tiers of meal in sacks were stacked property, and the plaintiff was injured by sacks falling down from the section from which he was taking a sack of meal for the purpose of loading it for a customer.
    The jury returned a verdict for the plaintiff in the sum of $8,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      O. A. Graves, T. D. Wynne and Charles A. Miller, for appellant.

      Williaon F. Denman, for appellee.
   Hart, C. J.,

(after stating the facts). It is first earnestly insisted that the court erred in not directing a verdict for the defendant. In making this contention, counsel claim, that the court should have told the jury as a matter of law, under the evidence introduced, that the plaintiff assumed the risk. This court has so often said that the employee assumes all risks naturally and reasonably incident to the services in which he engages, where the hazards of the service are obvious and within the apprehension of a person of his experience and understanding, that a citation of authority is hardly necessary. In short, by the contract of service, the servant agrees to bear the risk of all the ordinary dangers incident thereto, and he therefore cannot recover for an injury resulting therefrom. C. R. I. & P. Ry. Co. v. Grubbs, 97 Ark. 486, 134 S. W. 636, and oases cited.

In asking for a directed verdict, counsel for the defendant relied expressly upon Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50, 115 S. W. 925, and Francis v. Arkadelphia Milling Co., 153 Ark. 236, 239 S. W. 1067. We do not consider these cases as conclusive that the plaintiff assumed the risk.

In the Carr case the servant was engaged in moving stacks of meal from a pile for the purpose of loading them on railroad cars, and was injured by other bags on the same pile falling on him. He was held to have assumed the risk because the undisputed facts showed that the servant was injured while in the discharge of his duties, which required him to constantly change the condition of the working place. In that case the nature of the work in removing sacks made the working place more or less dangerous, and it was the duty of the plaintiff to make close examination of the place to see that it was safe. In the case at bar, the servant was injured by a sack from a different pile falling upon him. He was not ■ required to make an examination of his working place in order to see that it was safe. He was not changing the condition of the working place at all. The danger was created by the acts of other servants in piling the sacks of meal, and it did not result from the act of the servant in removing a sack from the pile of sacks filled with cottonseed meal which fell upon him.

In the Francis case, the court said that the undisputed facts showed that the danger was so patent and open that it might have been noticed by casual observation. The pile of sacks of meal was not only perpendicular, but was leaning* or bulging out at the top. The plaintiff was familiar with the place where he was working, and the condition in which the sacks were left through the negligence of the employees of the defendant was obvious and evident to .any one working* around the stacks of sacks. We cannot say that this is a matter of law here. According to the evidence of Webber Skinner, the pile of sacks of cottonseed meal which fell and injured the plaintiff was not properly stacked. On the top it looked like the sacks were just thrown up there and were not placed close together as they should have been. The defect was one that was not observable unless a close examination was made. The plaintiff had nothing whatever to 'do with stacking the sacks of cottonseed meal, and it was not his duty to examine his working place to see if it was safe. He was not injured by sacks falling from the pile on which he was working to remove the sacks. Hence there was no occasion for him to have observed the pile of sacks which fell and injured him.

Under the facts and circumstances shown by the plaintiff, we do not think the court was required as a matter of law to have instructed a verdict for the defendant on the ground that the plaintiff assumed the risk. On the other hand, we think the court properly left the question of assumption of risk by the plaintiff to the jury as a matter of fact to be determined by it.

The next assignment of error is that the testimony of Webber Skinner was not competent because it was not shown that he had any knowledge of the matters about which he was testifying, and that his testimony wa.s purely speculative, because it was only expressive of his own opinion. We do not agree with counsel in this contention. This witness made an examination of the scene of the accident immediately after it occurred. He examined the pile of sacks of cottonseed meal, and described their condition. He stated facts as they appeared from the condition of the pile of sacks of cottonseed meal, and the jury had a right to give it such force as might be deemed proper, considering his explanation of the way he found the pile of sacks immediately after the accident occurred. St. L. I. M. & S. Ry. Co. v. Flinn, 88 Ark. 489, 115 S. W. 142; Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, 52 S. W. 7, and St. Louis-San Francisco Ry. Co. v. Barron, 166 Ark. 641, 267 S. W. 582.

Counsel for the defendant also contend that the judgment must be reversed because the court erred in giving instructions Nos. 1 and 3, requested by the plaintiff. The instructions complained of read as follows:

“Instruction No. 1. You are instructed that it was the duty of the defendant to use reasonable care to provide the plaintiff, Cordon Skinner, with a reasonably safe place in which to work; and if you find from a preponderance of the evidence in this case that the defendant, Temple Cotton Oil Company, negligently failed to use such care in the stacking of its meal, by which the plaintiff claims to have been injured, and that by reason of such failure the plaintiff was injured as alleged, without fault or carelessness on his part, then it will be your duty to return a verdict for the plaintiff, Cordon Skinner.”

“Instruction No. 3. You are instructed that, while an employee assumes all the risks and hazards usually incident to the employment he undertakes, he does not assume the risk of the negligence of the company for whom he is working or any of its servants. In other words, ho has a right to assume not only that the master will perform its duty, 'but he has a right to assume that each of the other servants will perform their duty, and if, while in the exercise of ordinary care, he was injured, either by the negligence of any other servant, of the master, he has a right to recover; and if you find from a preponderance of the evidence in this case that the plaintfif, Gordon Skinner, while in the exercise of ordiniary care, was injured 'by the negligence of the master for whom he works or by the negligence of any other servant in the stacking of the meal, by which plaintiff claims he was injured, if you find it was negligently stacked, then your verdict should be for the plaintiff.”

At the request of the defendant the court instructed the jury upon the doctrine of assumed risk as a defense to the action. Counsel for the defendant claim that the instructions copied above are erroneous, under the doctrine laid down in Garrison Company v. Lawson, 171 Ark. 1122, 287 S. W. 396, and Natural Gas & Fuel Co. v. Lyles, 74 Ark. 146, 294 S. W. 395.

On the other hand, counsel for the plaintiff seeks /to uphold the action of the circuit court in giving the instructions under the doctrine laid down in St. Louis, Iron Mountain & So. Ry. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, 1199.

We all agree that an instruction should be complete in itself when it undertakes to tell the jury when a verdict should be returned for the plaintiff, and that the trial court should not instruct the jury that it must find for the plaintiff or the defendant, as the case might be, upon a partial or incomplete statement of the law applicable to the material facts of the case. We also agree that, where the body of the instruction does not contain every material fact proper to be established, what is called in Winter v. Bandel, 30 Ark. 362, p. 376, the stereotyped “find for the plaintiff” had better be left off.

The majority of the court, however, is of the opinion that the Rogers case has no application under the record as presented in the case at bar. ■ In the Rogers case,'while the instruction complained of wound up with the phrase, “then you will find for the plaintiff,” it was immediately followed by an instruction upon contributory negligence; and the court held that, from the language used in the two instructions and their juxtaposition, they were in reality explanatory of each other, instead of being inconsistent and contradictory. The court in that ease reiterated the rule laid down in Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 123 S. W. 1048, and other cases of this court to the effect that separate and disconnected instructions, each complete and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole. Hence the majority of the court holds that, -while an incomplete instruction may be cured by a subsequent one, as laid down in the Rogers case, the instructions in question are inherently wrong, and cannot be cured by a subsequent instruction, for the reason that the two instructions are inconsistent and only serve to confuse and mislead the jury. The majority is of .the opinion that the two instructions copied above and the instructions given at the request of the defendant on the doctrine of assumed risk contain inconsistent propositions of law which call for a reversal of the judgment.

The writer thinks that the better view is that a general objection was not sufficient, but that a specific objection should have been made, as explained in Arkansas Midland Rd. Co. v. Rambo, 90 Ark. 108, 117 S. W. 784, and St. Louis Southwestern Ry. Co. v. Graham, 83 Ark. 61, 102 S. W. 700, 119 Am. St. Rep. 112. It is true that the instruction complained of in each of these cases does not conclude with the phrase, “you will find for the plaintiff,” but the writer thinks that equivalent words are used, in which the jury was told that, if it should find the' defendant guilty of the negligent acts set out in the instruction, the plaintiff would be entitled to recover.

The result of our view's is that it is established as a settled law of this State by the decision in Garrison Co. v. Lawson, 171 Ark. 1122, 287 S. W. 396, and Natural Gas & Fuel Co. v. Lyles, supra, that an instruction is inherently erroneous, and therefore prejudicial, which leaves out of consideration the plaintiff’s contributory negligence or his assumption of risk, and leaves to the jury the determination of the defendant’s’ conduct, as the sole issue of the jury’s verdict, by concluding with the phrase, “you will find for the plaintiff,” since, under the evidence, the conduct of the jjlaintiff as well as that of the defendant is essential to a proper verdict.

For the error in giving instructions Nos. 1 and 3, at the request of the plaintiff, the judgment will be reversed, and the cause will be remanded for a new trial.


text:
    Breashears v. Norman.
    Opinion delivered January 30, 1928.
    1. Statutes — legislative intention. — Intention of the Legislature in framing a statute is to he collected from the words used, the context, the subject-matter, the effects and consequences; and the spirit and reason for the law.
    2. Animaus — stock district to foot of mountain. — Acts 1925, p. 170, § 1, prohibiting' grazing' of stock in certain areas, including' “Lower LaFave township to the foot of Fourche Mountain on the south side,” held to- prohibit grazing to the foot of the mountain on the south side of the township, and not to the south side of the mountain, where the top of the mountain constitute'd the south boundary line of the township, and the mountain itself was only fit for grazing lands, and not susceptible to cultivation.
    3. Appeal and error — conclusiveness of verdict. — The verdict of a jury as to a disputed question of fact cannot be disturbed on-appeal.
    Appeal from Yell Circuit Court, Danville District; J. T. Bullock, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This action was commenced by H. L. Norman against A. L. Breashears 'before a justice of the peace to recover the possession of four head of cattle. The suit was defended on the ground - that the cattle had • been impounded under an act prohibiting the running at large of horses, cattle, etc., in certain parts of Yell County, and that the owner of the cattle had failed to pay the fee allowed by the statute for impounding them. There was a verdict and judgment for the plaintiff in the justice court, and the defendant appealed to the circuit court. In the circuit court the case was tried upon a statement of facts substantially as follows: It was agreed that the cattle belonged-to the plaintiff, and that they were taken up while grazing in a field of the defendant in lower Lafave Township, in Yell County, Arkansas.
    The record, shows that Fourche Mountains are a series of mountains something like ten miles across. Fourche River flows along the north side -of Fourche Mountains, and South Fourche River flows along the south side of the Four'che Mountains. On the north side of the mountains Fourche River sometimes runs right up against the mountains, and at other places the mountains are further from the river than they are at the bluffs.
    In this particular case the defendant, Breashears’, house is situated about 150 yards from Fourche River where you start -to climb up the hills. He had 60 acres of land lying south of his house, and the cattle were in a pea-field on the extreme south side of his field, up on the mountain, when the defendant impounded them. They were between a quarter and a half a quarter mile south of his home. The field from which they were taken is up on the side of the mountain. It is about four and one-half miles from the foot of Fourche* Mountain to the top of it and about four and one-half miles from the top of it to the foot on the other side. The valley to the south of Fourche Mountain opposite the farm of the defendant is in Crawford Township. The foot of the mountain opposite the farm of the defendant is the dividing line between Lower Lafave township and Crarvford Township. The same condition exists as to Compton and Rover townships, which are on the north side of Fourche Mountain and east of Lower Lafave Township. Fourche Mountain is about ten miles across, and extends east and west through the southern part of Rover, Compton and Lower. Lafave townships, in Yell County; that is, the top of the mountain is the southern boundary of these three townships. The top of the mountain is the highest part of the mountain, and, in crossing Fourche Mountain, you go over a series of mountains which are all connected together and are in reality a part of tlie same mountain. That is to say, commencing at the first abrupt rise on the north side of Fourche River, you go up one ridge and down another until you come to the top of the mountain about four and one-half miles from Fourche River. Then you-continue in the same way up one ridge or mountain and down another for four and one-half miles until you come to South Fourche River, on the south side of the mountain.
    According to the evidence for the plaintiff, there is an abrupt rise in the ground after you leave the defendant’s house and go towards the field from which the cattle were impounded. In other words, it is fairly inferable from the testimony of the plaintiff that the field in which the cattle were impounded was on the side of the mountain. On the other hand, the jury might have inferred that the field of the defendant was on a slope from Fourche' River, and no abrupt rise in the land had begun.
    The .jury returned a verdict for the plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Robinson & George and Robert Radley, for appellant.

      Wilson & Wilson and Hays, Priddy, Rorex & Madole, for appellee.
   Hart, C. J.,

(after stating the facts). The Legislature of 1925 passed -an act to prohibit the running at large of horses, cattle, sheep, hogs, etc., in certain parts of Yell County. Acts of 1925, p. 170. Section 1 of this act reads as follows:

“It shall be unlawful for the owner, agent, or any person having charge of any horses, mules, cattle, sheep, goats, hogs, jacks, jennets or geese to permit or allow same to run at large in the following described territory of Yell County, Arkansas, to-wit: Wilson Township; Galla Rock Township; Centerville Township; Rose Creek Township; all of Dawson Township; all of Lamar Township; all of Mason Township; Ward Township;. all of Gilkey Township; Lower Lafave Township to foot of Fourche Mountain on south side; Rover Township to foot of Fourche Mountain on south side; and Compton Township to foot of Fourche Mountain on south side; Dardanelle Township; Delaware Township; Magazine Township; Prairie Township; all of Danville Township north of Petit Jean River and Chicago, Rock Island & Pacific Railroad; Sulphur Springs Township; Ferguson Township; Riley Township; Richland Township; Wave-land Township.”

It is agreed that the cattle belonged to the plaintiff, and that they -were impounded on land belonging to the defendant in Lower Lafave Township, in Yell County. It is conceded that the case turns upon the construction of the words “Lower Lafave Township to foot of Fourche Mountain on south side.”

We have copied all of the section defining the territory in the stock-law district in order to show the condition and situation of the lands as indicated by the Legislature when it passed the law. The intention of the Legislature in framing a statute is to be collected from the words used, the context,, the subject-mater, the effects and consequences, and the spirit and reason for the law. Turner v. Edrington, 170 Ark. 1155, 282 S. W. 1000; Gay Oil Co. v. State, 170 Ark. 587, 280 S. W. 632; Harris v. State, 169 Ark. 627, 276 S. W. 361, and Summers v. Road Imp. Dist., 160 Ark. 371, 254 S. W. 696.

It will be observed that the description with reference to Rover and Compton townships is identically the same as. that of Lower Lafave Township. All three of these townships lie on the north side of Fourche Mountain, and the top of Fourche Mountain is the south boundary line of each of the townships. Fourche River runs along- the north side of Fourche Mountain, and in some places there are abrupt rises, and in other places there is a narrow valley, and the first abrupt rise leads up the mountain. Fourche Mountain is from eig*ht to ten miles across from the foot of it on the north side to the foot of it on the south side. The mountains are only fit for grazing lands, and .are not susceptible to cultivation. Indeed, a large part of the mountain in Lower Lafave and the adjoining townships in Yell County is in the forest reserve of the United States Government, and permits, under certain 'conditions, are given to cattle, owners to graze their cattle there. The plaintiff had one of these permits.

Bearing in mind the situation and condition a.s it existed at the time the act was passed, we think it was the evident intention of the Legislature to exclude all of Fourche Mountain from the boundaries of the stock district. There is no conceivable reason why Fourche Mountain in Lower Fafave, Rover and Compton townships should have been included in the district and the rest of the mountain left out.

We have already seen the particular description applicable to this case, i.e., “Lower Lafave Township to the foot of Fourche Mountain on south side.” The word “to” is a word of-exclusion, and the Legislature evidently ■meant to exclude Fourche Mountain from the limits of the stock district. We think the words, “Lower Lafave Township to the foot of Fourche Mountain on the South side,” meant to the foot of Fourche Mountain on the south side of the township and not on the south side of the mountain. In the first place, the south side of the mountain opposite Lower Lafave Township would be in Crawford Township, as the top of the mountain is the dividing line between Lower Lafave and Crawford townships. While the description is somewhat awkwardly expressed, we think there can be no doubt but that this is the meaning of the Legislature, when the object and purpose of the act and all the surrounding-circumstances and the situation of the land are considered together. This is the view of the matter taken by the circuit court in trying the case.

The court' submitted to the jury the question of whether or not the field from which the cattle were taken was situated on the side of the mountain, at such a place where there was an abrupt rise in the land as distinguished from a gradual slope constituting- the narrow valley between the southern bank of Fourche River and the foot of the north side of Fourclie Mountain. The jury settled this question of faet in favor of the plaintiff, and, under our settled rules of practice, the verdict cannot he disturbed on appeal.

It follows that the judgment of the circuit court was correct, and it will therefore he affirmed.