text:
    Raines v. O’Neal.
    4-3468
    Opinion delivered June 4, 1934.

      Henry Stevens, for appellant.

      Searcy & Searcy, for appellee.
   McHaney, J.

This is an appeal from a decree foreclosing a mortgage on certain lands given by appellant, Will Raines, to secure a note for $450, representing certain advances already made and those to be made in the future by appellees. The propert3r covered by the mortgage has been sold, and appellees became the purchasers for a sum less than the amount of the judgment.

For a reversal, it is first urged that appellees sued on a note, but recovered on an account, which amounted to a recovery on a substituted cause of action. It is true that appellees declared upon a note, secured by a mortgage. Appellants denied they were furnished the full amount of the note, stated that the note- and mortgage were given for supplies to be advanced, and asked that appellees be required to set out an itemized and verified account. This was done, and its only purpose was to show that the note represented the correct amount of advances already made at the date of its execution and those to be made thereafter. It was simply another way of establishing the amount due on the note. Although a note is given for a definite sum and is secured by a mortgage given for a definite amount, it is competent to show that the transaction is simply one for future advances or for a sum already advanced and for future advances. Henry v. Union Saw Mill Co., 171 Ark. 1023, 287 S. W. 203. It is not the substitution of a cause of action on account for one on a note. The amendment to the complaint setting out the itemized account was called for by appellants.

It is next earnestly insisted that the note sued on and the mortgage are usurious. In the substituted answer filed by appellants it is alleged that the note is usurious because supplies were not furnished under it up to the amount of the face of the note. In this appellants are mistaken. The evidence greatly preponderates in favor of appellees in this regard, conceding without deciding that the plea of usury was sufficient, since there was no allegation of an intention on the part of appellees to take or reserve more than the legal rate of interest. See Moody v. Hawkins, 25 Ark. 191; Citizens’ Bank v. Murphy, 83 Ark. 31, 102 S. W. 697; American Farm Mortgage Co. v. Ingraham, 174 Ark. 578, 297 S. W. 1039. Nor does the proof show that more than 10 per cent, per annum was charged or received. Mr. Crockett testified that interest was charged at 10 per cent, from the first of the month for goods bought during the preceding month. Appellants received monthly statements of their account and never at any time questioned same, and these statements showed on their face: “All bills are due and payable on the first of each month following date of purchase. 10 per cent, interest charged after maturity.” We think there can be little doubt that appellants were not overcharged either as to interest or principal.

The final contention of appellants is that the land covered by the mortgage became the homestead of Mary Raines, wife of Will Raines, prior to the recording of the mortgage, although subsequent to the date.of its execution and delivery, and, not being signed and acknowledged by her, it is void. The note and mortgage were executed and delivered by Will Raines on January 11, 1928, while he was a widower. Four days later, January 15, Will and Mary (colored) were married and immediately moved on the 80 acres of land covered by the mortgage which was not recorded until February 3, 1928, and, of course, was not signed or acknowledged by Mary. This is a novel contention and one that has rarely been before the courts. It is unsound in principle and not supported by authority. The law is thus stated in 13 B. C. L., § 109:

“failure to record transfer: While marriage is undoubtedly in one sense a valuable consideration, yet it has hardly yet been reduced to the level of a contract of bargain and sale, nor do we find that it has ever been held that the statute of registration is intended to advise persons contemplating matrimony of the property and contract status of the other party to the contemplated engagement. It is reprehensible for either party to conceal the fact that he or she does not own large properties on the faith of the reputed ownership of which, in part at least, the other may properly enter into an agreement of marriage, but the statute for the registration of conveyances, while intended to protect purchasers for valuable considerations, mortgagees, and judgment creditors, without notice, cannot be given that enlarged construction which would include persons entering into a contract of marriage, and it is held that the failure to record an antenuptial conveyance by the husband does not render it invalid as against the future wife as regards her marital rights in the property conveyed. ’ ’

From this and other authorities we are of the opinion that, as stated by the Supreme Court of Minnesota in Snell v. Snell, 54 Minn. 285, 55 N. W. 1131: ‘ ‘ The right in her husband’s real estate, which a wife acquires by her marriage, does not come within the registry law, and is postponed to an unrecorded trust.”

We are of the opinion that Mary acquired her rights to the homestead subject to the existing mortgage, even though not recorded, as the registry statutes in such cases were not for her protection.

Affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Union National Bank v. Kirby.
    4-3568
    Opinion delivered June 4, 1934.

      Moore, Gray, Burrow & Chowning, for appellants.

      Bose, Hemingway, Cantrell \& Loughborough, for appellee.
   McHaney, J.

This appeal involves the construction of the will of Alexander Robertson, a resident and citizen of Little Rock prior to his death in 1921. The will created a testamentary trust for certain purposes hereinafter stated, and appointed the Union & Mercantile Trust Company of Little Rock as trustee. The latter was succeeded by the Union Trust Company, and it later was succeeded by appellant, Union National Bank, which, together with the other appellants, were, by chancery decree appointed co-trustees in succession. The only part of the will of said Alexander Robertson relating to said trust is section 4 of paragraph 2 thereof, which reads as follows:

“4. After the payment of the legacies and bequests set forth in sections two and three of this paragraph of my will, all of the rest and residue of the property in the hands of my said trustee, real, personal and mixed, shall be converted by it, as soon as practicable, into cash or other securities, and the. net income therefrom shall be applied, appropriated and expended by my said trustee in procuring scholarships for a business or commercial course in some college or school, to be selected by it for such women and girls of the city of Little Rock, Arkansas, as my said trustee shall select as worthy and deserving of procuring such business or commercial course, and who, in the absolute discretion of my said trustee, shall have insufficient funds of their own for procuring such business or commercial course, such scholarship to be known as the Abigail Robertson scholarship. My said trustee shall be the sole and absolute judge as to whether or not the applicants, applying to it for such scholarship are worthy of its aid and support, the said trustee being hereby specifically conferred with full power and authority to accept or reject any applicant for said scholarship.
“Where an award is made to an applicant, said trustee shall in its absolute discretion appropriate and apply such part of the net income from the property in its hands as it shall, in its absolute discretion, deem necessary to procure for said applicant such business or commercial course, including the appropriation and expenditure by it of such sums as it shall, in its absolute discretion, deem necessary for the support and maintenance of said applicant while attending such school or college under such scholarship.”

The widow, Abigail Robertson, subsequent to the probate of the will, elected to renounce same and took certain property as dower. Shortly thereafter, however, she changed her mind and deeded most of the property back to the trustee upon condition that after her death it should be held and administered as a part of the trust property and in accordance with the provisions of her late husband’s will.

Appellee applied to appellants as trustees to advance her $500 to assist her in pursuing her studies of voice in Chicago, and her application was denied on the ground that assistance for snch a course of study was not authorized or permitted under the terms of the will creating the trust. She brought this action, alleging* that she is a citizen and resident of Little Rock, that she had studied music in Chicago for four years under certain prominent teachers, who, on account of her unusual progress, have offered to continue her musical education without charge if she can maintain herself; that she is without funds - and unable to continue her studies unless aided by this fund; that she had made application to appellants for said sum and believes they favor advancing same to her, but are in doubt as to their authority under the will to do so; that it is her intention to devote her life to music and to support herself in that way; and that a musical education is for her a matter of business. She prayed the court to construe the will and advise the trustees whether they are so authorized by the terms of the will.

The answer set up the clause in the will above copied and the clause in the deed of Mrs. Robertson above referred to, and stated that the trustees were in doubt whether a musical course of study is within the purview of the will; that they do not feel authorized to grant a scholarship for such purpose without first being advised and instructed by the court that it is within their power; and that they have accordingly refrained from considering appellee’s application and her qualifications until they are so advised. The prayer joins in a request to the court to construe the will.

The evidence shows that up to the present time scholarships have been only granted out of such fund for business- and commercial courses in business and commercial schools and colleges of Little Rock; and that the trustees now have in business schools or colleges seventy-four young women. The chancery court entered a decree granting the prayer of appellee’s complaint, and holding that appellants have the power under the will, as trustees, to grant her application and furnish her a scholarship for the study of music.

In tliis we think the learned trial court was in error. Assuming that the court had jurisdiction to construe this will, a question not raised or decided, the general rule is that the paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public policy or of some rule of law, shall control; and such intention is to be ascertained from the language used as it appears from a consideration of the entire instrument. Words and sentences used are to be construed in their ordinary sense so as to arrive at the real intention of the testator. Witten v. Wegman, 182 Ark. 62, 30 S. W. (2d) 834; Union Trust Co. v. Madigan, 183 Ark. 158, 35 S. W. (2d) 349; First National Bank v. Marre, 183 Ark. 699, 38 S. W. (2d) 14; Lavenue v. Lewis, 185 Ark. 159, 46 S. W. (2d) 649.

Bearing these fundamental rules in mind, we think there can be no doubt-as to the nature of the beneficence the testator intended to bestow. The language of the will is that the net income of the trust fund shall be applied by the trustee in procuring “scholarships for a business or commercial course in some college or school” to be selected by the trustee for such women and girls of the city of Little Bock as the trustee shall select as worthy and deserving of “such business or commercial course” and who in the judgment of the trustee shall have insufficient funds for procuring such “business or commercial course. ” It is true1 that the word “business’’ in its broadest acceptation would include every trade or occupation. See definitions in all the dictionaries and in Words and Phrases.

But we are of the opinion that the testator did not use the word in that sense, but the words “business or commercial” were used in a synonymous sense. In other words, that the word “commercial” is explanatory of the word business. This is further evidenced by the fact that the two words are connected by the disjunctive word “or.” So the testator, by using the words “business or commercial course,” evidently meant to use them in the sense ordinarily conveyed by such use — such a course as it usually taught by business or commercial schools and colleges, and not to schools and colleges teaching the arts, sciences and professions. If the appellee is correct in her contentions, then the trustees would be authorized to send qualified persons to schools of law, medicine, dancing and what not, and would, in our opinion alter the purpose of the trust. This a court of equity has no power to do. As said by this court in Morris v. Boyd, 110 Ark. 468, 162 S. W. 69: “The jurisdiction of courts of equity to supervise the execution of charitable trusts does not include the power to alter the terms of the trust, nor to sanction a diversion of any portion of the trust estate. That would involve the making of a new will for the testator and a disposition of the property contrary to the intention of the donor.”

We are therefore of the opinion that the court erroneously construed the will. It necessarily follows that its judgment must be reversed, and the cause dismissed.


author: Butler, J.

text:
    Wheelis v. Franks.
    4-3479
    Opinion delivered June 4, 1934.

      George R. Steel, for appellant.

      Shaver, Shaver $ Williams, for appellee.
   Butler, J.

The controversy involved in' this action is over the office of county examiner of Little Biver County. The appellant, L. F. Wheelis, was the county superintendent of schools of said county at the time of the passage of act No. 26 and act No. 247 of the Acts of the General Assembly of 1933.

By act No. 26, approved February 9, 1933, the office of county superintendent of schools was abolished and that of county examiner created. This act had no emergency clause appended, and therefore did not go into effect until ninety days after its passage.

On March 29, 1933, and within the ninety days from the passage of act No. 26, supra, a supplemental act was passed and approved, the same being act No. 247. This act contained an emergency clause and abolished the office of county superintendent of schools and created the office of county examiner in lieu thereof.

By § 4 of act No. 26 the county judge was authorized to select and employ a person to serve as county examiner of schools. The only restriction on the power of the county judge was that the person selected should have certain qualifications. By § 3 of act No. 247, supra, the county court was vested Avith the power of appointment but only upon the recommendation of a majority of the duly licensed teachers residing in the county.

On March 30, 1933, folloAving the passage of act No. 247, appellant Wheelis and appellee Franks filed Avith the clerk of the county court their separate and several applications for appointment to the office of county examiner. Each of their applications was recommended, in writing by a number of the licensed teachers. On consideration of these petitions, the county court found that “both petitioners have a majority of the licensed school teachers in the county,” and thereupon appointed appellee Franks to the position. From this order an appeal was prosecuted to the circuit court of the county, which court, upon a hearing, held that a majority of the licensed teachers had recommended the appointment of Wheelis and adjudged that he be appointed county examiner and directed that its order be certified to the county court as the order of that court, which was accordingly done.

The county court thereupon appointed the appellant Wheelis as county examiner for the term of one month at a salary of $25 and caused to be delivered to liim, as such examiner, all the records pertaining to the office. The appellant, acting upon the authority of the order of the county court, took possession of the records and entered upon the discharge of his duties as county examiner on August 11, 1933. Within the month between August 11 and September 11, 1933, a petition was circulated for the appointment of the appellee Franks which was presented to the county court after the expiration of the period for which Wheelis was appointed. Upon an examination of this petition, the county court found that Franks had been recommended by a majority of the licensed teachers of the county, and on the last-named date appointed him to succeed Wheelis. Franks qualified as county examiner under said order, and, upon the failure and refusal of Wheelis to surrender the office and records pertaining thereto, the instant action was instituted by the appellee Franks under the provisions of §§ 8332 and 8341 of Crawford & Moses’ Digest. On September 23, 1933, the circuit court entered an order adjudging the office and records thereof to the appellee, Franks, from which is this appeal.

It is conceded that the proceedings are controlled by the provisions of act No. 247, supra, and therefore the principal question is the proper construction of that act. It will be observed that neither in act No. 26 nor in act No. 247 is there a definite term fixed for which a county examiner shall serve. By. act No. 26 (§ 4 thereof) the county judge is authorized to “select and employ a person to serve as county examiner of schools and contract with him for such services for a period not to exceed two years, subject to the approval of the quorum court at its first session following the appointment”; at a salary of not exceeding $600 per annum, and by § 3 of act No. 247 the following provision is made: “The office of county examiner is hereby created. Said examiner shall be appointed by the county court upon the recommendation of a majority of the duly licensed teachers residing in the respective county,” and nowhere in this act is there any reference made to the duration of the period for which the county examiner shall serve.

It was the opinion of the trial court, in which we concur, that, no definite term of office having been fixed, it was the intent of the Legislature to vest discretion in the county court in the matter of fixing and limiting* the period of employment of the county examiner and in fixing his salary. The judgment of the circuit court on the first appeal in this case simply found that a majority of the licensed teachers had recommended the appointment of Wheelis as county examiner and adjudged that he be appointed as such by the county court without fixing any definite time in which he should serve or any salary he should receive. Therefore the county court had the discretion to fix the term and the salary, which it did, and, of course, at the expiration of that time said court was authorized to appoint another person having the required qualifications and being recommended by the requisite number of the licensed teachers.

The argument is made that the construction placed on the acts of the Legislature by the court below would make the office of county examiner and its incumbent the mere creature of the county court, subject to removal at will with or without cause, which would be destructive to the best interest of the schools. We have no way of ascertaining the legislative intent except from the language employed in the acts, and, as this is unambiguous, we must give to it its obvious meaning. It has been too often held, as now to be a matter of debate, that the Legislature is clothed by the Constitution with plenary power over the management and operation of the public schools. It is for the Legislature to declare the policy with reference to the schools, and, however much this court might doubt the wisdom of the policy declared, it has no power to alter it. Where the Legislature clothes any officer or tribunal with the authority to appoint officers for an indeterminate period, that power carries a discretion which the courts cannot invade unless such discretion can be clearly shown to have been arbitrarily exercised. 22 R. C. L. 430. It is not doubted but that, where an office having no fixed term is filled by appointment, the appointing power may fix the term, or it may be held at its pleasure. Beasley v. Parnell, 177 Ark. 912, 9 S. W. (2d) 10, and cases therein cited.

We conclude that the trial court correctly construed the act under consideration, and its judgment is therefore affirmed.


author: Johnson, C. J.

text:
    National Life & Accident Insurance Company v. Hampton.
    4-3486
    Opinion delivered June 11, 1934.

      Bevens & Mundt, for appellant.

      Polk •<£ Orr, for appellee.
   Johnson, C. J.

On August 1, 1932, appellant issued its policy of insurance to Arthur Hampton by the terms of' which it agreed to pay Annis Hampton, beneficiary, in the event of the accidental death of the insured, $400 as follows:

“INDEMNITY POE SPECIFIC LOSSES FROM ACCIDENTAL INJURIES.
“If due directly (and independently of all other causes) from a bodily injury, which is sustained while this policy is in force and which is effected accidentally and through external and violent means (excluding suicide, sane or insane, and injuries fatal or nonfatal, intentionally inflicted upon the insured by himself or by any other person except by burglars or robbers) the insured shall, within ninety days of the date of such injury suffer either of the losses below enumerated in schedule B, the company will pay the amount set opposite such specific loss in the schedule B referred to; such payment to be in addition to the weekly indemnity provided in schedule A for the period of total disability'prior to the date of such specific loss.
‘ ‘ Schedule B
“Accidental Loss of Life The principal sum.”

On February 11, 1933, the insured died, at which time the policy of insurance was in full force and effect.

Thereafter this suit was instituted by Annis Hampton, the designated beneficiary, against appellant, alleging the contract, its effectiveness at the time of the death of the insured by accidental means, and sought recovery of the sum of $400, together with penalty and attorney’s fees.

The testimony, when viewed in the light most favorable to appellee and as stated by appellee in her brief filed herein, was to the following effect:

“Now, analyzed as an intelligent chain of facts and circumstances, let us see if the appellee has presented facts and circumstances sufficient to meet the requirement of the law as expressed by this court regarding the sufficiency of evidence to sustain a verdict. Appellee has shown that the insured was a well and able-bodied man of forty-six years of age; that he had been working continuously for some five or six weeks prior to the time of his fall and injury; that he was strong and well enough to roll six-hnndred-pound bales of linters, with a coworker, for ten hours a day, and this was testified to by Sol Brown, Annis Hampton, Hattie Gilstrap and the foreman, Mr. Ritchie; that, while in the act of rolling one of these bales, he unexpectedly stepped down into a hole some two or three feet, and, as a result of same, received an unexpected and severe jolt; chat prior to that time he had not complained in any way of not feeling well, but a short time after the fall he complained of being sick and a little later, in the afternoon of having a chill, which necessitated his quitting work some thirty minutes before the regular quitting time; that about seven o’clock his wife found him at home sick and unable to eat supper and complained of suffering with pains in the stomach. ’ ’

The jury returned a verdict in favor of appellee, and this appeal is therefrom.

But one serious contention is presented on this appeal, namely, that the testimony is insufficient to support the verdict of the jury. It is the well-settled doctrine in this State that a jury’s verdict cannot be predicated upon conjecture or speculation. St. Louis, I. M. & S. Ry. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912; St. Louis, I. M. & S. Ry. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418.

Mr. Justice Brewer, in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, tersely stated the doctrine as follow:

“It is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of a half dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.” And without adding to or subtracting from the rule thus stated, we announce our approval thereof.

The effect of the testimony here presented and heretofore quoted falls far short of the requirements of the rule as heretofore announced. No witness testified, from opinion or otherwise, that the insured died from the effects of any accidental injury received by him, nor does any witness testify that the fall, which he received on February 8, immediately prior to his death, was even a contributing- factor thereto. Neither did any witness testify to any facts or circumstances from which it might be inferred that the insured’s death resulted from this fall. The physician called by the insured and who attended him during- his last illness testified to no. such fact or circumstance. On the contrary, this physician testified that the insured died of a cerebral hemorrhage, which was probably caused by excessive vomiting, and that this excessive vomiting was caused from the effects of a chill which insured had during the evening of February 8.

Under long-established rules of this court, the burden rested upon appellee to show by evidence, not only that the insured suffered an accident, but that his death resulted therefrom. This the testimony here presented wholly fails to do.

Thus it definitely appears that the jury’s verdict was based upon conjecture and speculation, and not upon facts and circumstances introduced in evidence, and for this reason cannot be sustained.

It follows from what we have said that the trial court erred in refusing to direct the jury to return a verdict in favor of appellant when requested so to do, and likewise in refusing- appellant a new trial upon consideration of its motion therefor.

Since the case seems to be fully developed, it will be reversed and dismissed.


author: Smith, J.

text:
    Wiseman v. Dyess.
    4-3550
    Opinion delivered June 11, 1934.

      Earl R. Wiseman, Hal L. Norwood, Attorney General, and Pat Mehajfy, Assistant, for appellant.

      Leon B. Catlett, for appellee.
   Smith, J.

This suit was instituted hy the Administrator of Federal Emergency Relief in this State to enjoin the State Commissioner of Revenues from collecting a license tax on automobiles, and a tax on gasoline consumed in operating therein, which are used in this State and purchased out of funds made available to the State of Arkansas under the Federal Emergency Relief Act passed by the Congress on March 12, 1933.

The cause was tried under the following agreed statement of facts: “Under the provisions of the Federal Relief Act of the Congress of the United States approved May 12, 1933, the President of the United States appointed Harry L. Hopldns as Federal Emergency Relief Administrator, and the latter has duly appointed the plaintiff, W. R. Dyess, as Emergency Relief Administrator for Arkansas, who has duly qualified and is acting as such administrator and who brings this action in that capacity. The said W. R. Dyess, in such capacity as Emergency Relief Administrator, appoints and sets the salaries of all employees of Emergency Relief Administration, subject to the approval of the said Harry L. Hopkins, which Emergency Relief Administration is the name designate of the Arkansas unit of said Federal Emergency Relief Administration, of which said Harry L. Hopkins is the national head. The said W. R. Dyess, as such administrator, determines the amount necessary for federal relief in this State and presents said data to the Governor of the State of Arkansas, who signs requisitions therefor on blanks provided by said Emergency Relief Administration. A copy of such application is attached hereto. The Federal Relief Administrator then makes the grant for relief within the State and United States checks for the designated amount, which are payable to J. M. Futrell, Governor of Arkansas, are then forwarded by the agency of the Federal Government to said Governor. The latter indorses said checks, delivers them' to said W. R. Dyess as Emergency Relief Administrator and takes a receipt therefor, a copy of which is hereto attached. The said Emergency Relief Administrator then indorses said checks and deposits them in Little Rock banks, and other banks in the State, to the credit of Emergency Relief Administration, which dispenses same in accordance with said act of Congress and the amendments thereto. All expenditures are supervised by field superintendents from the Washington-office of the Federal Emergency Relief Administration, and reports of all expenditures of said money are duly and regularly made to the Federal Relief Administration in Washington.

“It is now the policy of the said Federal Emergency Relief Administration to purchase, out of the funds granted for relief within the State, certain livestock, including horses, mules, cattle and hogs, and to sell same to persons on the relief rolls and who are unable to provide same. The purpose thereof is to put a number of such financially destitute persons back on the land where they can make their own living. Mortgages are taken on said livestock so sold, with a low rate of interest, and an opportunity to repay the amount. Said mortgages are taken in the name of Emergency Relief Administration, the Arkansas unit of said Federal Relief Administration, in such legal manner as to be binding on the purchasers. All of the funds used in the purchase and distribution of said livestock are furnished by the United States Gov-eminent, granted for relief -within the State, as herein outlined.

“In order to provide for the distribution of said livestock, it has become necessary for the Arkansas unit of Federal Emergency Relief Administration to purchase a number of motor vehicles, including automobiles, trucks and trailers, with which to distribute such livestock, and, after such distribution, to superintend its care and the repa3rment of the purchase price. The said motor vehicles are, and will continue to be, used exclusively for that purpose, and the purchase price of said motor vehicles is paid solely out of the funds granted, as herein stated, for relief within the State of Arkansas.

“The said Earl R. Wiseman is the duly appointed, qualified and acting Commissioner of Revenues of the State and is threatening to collect motor vehicle license fees on such motor vehicles and a tax on the gasoline used in such vehicles.”

The court held that the automobiles used as stated were the property of the United States Government, and that neither they nor the gasoline used in their operation were subject to taxation, and this appeal is from that decree.

For the reversal of this decree it is-insisted that the act of Congress granted the funds spent in this State to the State, thereby passing the title to the State, and upon becoming State funds were subject to the tax, as the State legislation imposing the tax had not exempted such funds from taxation.

It is unnecessary to consider or to decide what the state of the law would be if the funds apportioned to this State had become the property of the State, as, in our opinion, that result was not intended and has not been accomplished. It is our opinion that these funds and the automobiles for which a portion of the funds had been expended were and are Federal property, and as such are not subject to taxation by the State. It is true the act of Congress refers to the apportionment of these funds to the States “as grants to the several States,” but it does not appear that such a donation thereof was made as to pass the title and control thereof from the Federal Government. They are- — and continue to be — Federal funds, subject to the supervision of the Federal Government in their disbursement. The State has no control over the expenditure of these funds. It does appear that, for the convenience of the Federal administrator, and to expedite the distribution of the Federal Government’s bounty, application for the funds is made by the Governor of the State, who signs the receipt therefor and indorses the check used in remitting the funds, but when he has done so he delivers the indorsed check to the plaintiff State administrator for distribution. The clerical acts mentioned comprise the full extent of the authority and duty of the Governor. No other officer, agent or employee of the State has any control or supervision of the funds, or of the property purchased therewith. The Governor of the State acts merely as the agent or intermediary employed by the Federal Government in discharge of the beneficent purpose of the congressional act. The checks are delivered upon indorsement to the plaintiff, who was appointed by the national administrator, and the persons who make the actual disbursement are all Federal employees, who are not subject to the control or supervision of any officer of the State. No reports of expenditures are made to the Governor, but such reports are made to the national administrator, who appointed the State administrator, and the national administrator makes report to the President of the United States and to the Congress of the manner in which and the purposes for which the money was expended. The act of Congress under which the apportionments are granted requires this, and negatives the idea that an absolute grant or gift had been made to the State. If, by any possibility, any of the funds thus apportioned were not required, the unexpended balance would revert, not to the State, but to the Federal Government.

The title to the automobiles is in the United States, and not in this State. It is stipulated that the purchase and use of these automobiles was and is in aid and in furtherance of the congressional program for the amelioration of the emergency which induced the passage of the legislation. As to what, would be done with the automobiles when the use of them for the purposes for which they are now employed has ceased is a question not presented by the record before us. They are now used for a Federal purpose, and, if so, they are not subject to taxation; nor is the gasoline required to run them subject to taxation.

A similar question was involved in the case of Panhandle Oil Co. v. State of Mississippi, 277 U. S. 218, 48 S. Ct. 451, 56 A. L. R. 583. There the State of Mississippi sued to recover taxes claimed on account of sales of gasoline made for the use of the Federal Coast Guard Fleet in service in the Gulf of Mexico and its Veterans ’ Hospital at Gulfport in that State. The Supreme Court of Mississippi held the exaction a valid privilege tax measured by the number of gallons of gasoline sold; that it was not a tax upon instrumentalities of the Federal Government, and that the United States was not entitled to buy such gasoline without the taxes charged other users of gasoline being paid. 147 Miss. 663, 112 So. 584.

In reversing this case the Supreme Court of the United States held, in the case first cited, that: “While ■ Mississippi may impose charges upon petitioner (the dealer who sold the gasoline) for the privilege of carrying on trade that is subject to the power of the State, it may not lay any tax upon transactions by which the United States secures the things desired for its governmental purposes.”

In the case of Johnson v. State of Maryland, 254 U. S. 51, 41 S. Ct. 16, it was held (to quote the headnote) that: “A law of a State penalizing* those who operate motor trucks on highways without having obtained licenses based on examination of competency and payment of a fee, can not constitutionally apply to an employee of the Post Office Department while engaged in driving a government motor truck over a postroad in the performance of his official duty. ’ ’

In that opinion it was said: “With reg*ard to taxation, no matter how reasonable, or how universal and undiscriminating, the State’s inability to interfere has been regarded as established since McCulloch v. Maryland, 4 Wheat. 316. The decision in that case was not put upon any consideration of degree but upon the entire absence of power on the part of the States to touch, in that way at least, the instrumentalities of the United States (4 Wheat. 429, 430) and that is the law today.”

See also Grayburg Oil Co. v. Texas, 278 U. S. 582, 49 S. Ct. 185, reversing the decision of the Supreme Court of Texas, [3 -S. W. (2d) 427], holding that the State had the right to collect a tax on gasoline sold to the United States and delivered on a military reservation in that State.

It is provided, in § 35 of act 65 of the Acts of 1929 (vol. 1, Acts 1929, page 309), that motor vehicles belonging to the United States Government and used in its business exclusively shall not be required to pay any motor vehicle fuel tax nor to pay a license fee on such vehicles, thus recognizing the exemption from taxation and the absence of any purpose to collect such a tax.

We have not overlooked act 108 of the Acts of 1933, page 329, which does not affect the conclusion announced.

The decree of the court below is correct, and is therefore affirmed.


text:
    Shrigley v. Pierson
    4-3488
    Opinion delivered June 11, 1934.

      Reynolds •(& Maze, for appellant.

      G. O. Patterson, Sr., G. O. Patterson, Jr., and R. W. Robins, for appellee.
   Smith, J.

Mrs. Pierson, the plaintiff below, alleged and offered testimony legally sufficient to establish the fact that she had been invited to ride in and to drive a car owned by a Mr. Shrigley — the defendant below — the steering gear of which was defective, and because of the defect she was unable to control the car, which ran off the road, turning over, and inflicting upon Mrs. Pier-son serious and permanent injuries. Mrs. Pierson drove the car from Clarksville, of which city she and Mr. Shrigley were residents, to Fayetteville, a trip any one would be pleased to take who knew what to expect in the way of scenic beauty. The purpose of the trip was to drive Mrs. Shrigley’s mother and father to Fayetteville and leave, them there to visit another daughter, and Mrs. Shrigley made the fourth member of the party. Mrs. Shrigley and Mrs. Pierson were returning alone, when, according to Mrs. Pierson’s testimony, the steering gear locked, and she lost control of the car, which ran off the road and turned over.

There was testimony to the effect that Mr. Shrigley had been informed by a mechanic who did some repair work on the car that the steering gear was not in good order, and he was advised by the mechanic to have it put in repair, but he neglected and failed to do so. This was denied by Shrigley, and the testimony on his behalf was to the effect that.-the work of the mechanic put the car in good condition, and that he was advised of no defect in the steering gear. The testimony on Shrigley’s behalf was to the further effect that the steering gear was not out of order even after the car had turned over, and that the. accident was caused by a nail which had punctured one of the rear tires.

The cause was submitted to the jury under instructions, to which Shrigley objected and excepted, to the effect that, if he invited Mrs. Pierson to take the trip and drive the car, he was liable for any damages suffered by her by reason of a defect in the steering gear, if lie knew, or, in the exercise of dne care, should have known, of the defect. Instructions were requested by Shrigley to the effect that he would not be liable, even though he had invited Mrs. Pierson to accompany his wife, and the finding was made that the injury to Mrs. Pierson was occasioned by a defective steering gear, unless he knew of the defect.

From a verdict and judgment in favor of Mrs. Pier-son is this appeal. We think the law should have been declared as requested by Shrigley in the respect above stated. The case of Howe v. Little, 182 Ark. 1083, 34 S. W. (2d) 218, was a suit by an invited guest against the owner of a car in which the owner and the guest were riding when the guest was injured. There was some question as to whether the plaintiff was an invited or a self-invited guest, but we adopted the rule — which was said to be the modern rule and the one supported by the weight of authority — that no distinction was to be made as to the kind of a guest, as the duty was identical, whether the guest ivas invited or self-invited.

In discussing the duty owing the guest, it was there said that “the guest takes the automobile and driver as he finds them, ’ ’ and that there was no duty of inspection for defects so far as the guest was concerned. We there quoted from 1 Blashfield, Cyclopedia of Automobile Law, page 967, the following statement of the law: “With respect to the condition of the automobile, the rule is that one invited to ride therein by the owner or driver accepts the machine of the host as he finds it, subject only to the limitation that the driver or host must not set a trap or be guilty of active negligence, contributing to the injury of the guests.”

There appears to have been no other error at the trial, but for the error indicated the judgment must be reversed, and the cause will be remanded for a new trial.

Johnson, C. Jv and Mehaeey, J., dissent.


author: Humphreys, J.

text:
    Steed v. State.
    Crim. 3889
    Opinion delivered June 11, 1934.

      Remberger $ Reinberger and E. D. Dupree, Jr., for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Humphreys, J.

Search warrants were issued by the circuit judge of Jefferson County under § 2637 of Crawford & Moses’ Digest on information that gambling devices commonly called slot or marble machines were kept contrary to law in a cigar store operated by S. A. Rosenberg and in a sandwich shop operated by Jerome Weaver in Pine Bluff. The sheriff executed the writs by taking into his custody certain slot marble machines which were ■being used at 'both places. The two causes were consolidated by order of court, and appellant herein, the owner of the machines, intervened, alleging that they were manufactured and used for the purpose of amusement, and not for the purpose of gambling.

On the hearing of the consolidated causes., the trial court found that the machines were gambling devices and ordered that they be destroyed, from which is this appeal.

The récord reflects that the machine seized at the cigar store was used a part of the time by the patrons for gambling and at other times for amusement only; that the. machine seized at the standwich shop had been used by the patrons for gambling until notice had been given by the circuit judge that marble slot machines would be confiscated, and that then it was used for the purpose of amusement only; that the máchines are so constructed that by putting a nickel in the slot ten marbles are released and are brought into play one at a time by pulling a lever on the side, and then by pulling another lever each marble is shot out to a large board containing holes which are numbered, into which the marbles drop; that the patron getting the largest score wins the game and the prize.

Section 2637 of Crawford & Moses’ Digest, under which the machines were seized, provides for the destruction of gambling devices, which § 2630 of Crawford & Moses’ Digest makes it unlawful to keep and exhibit. Said § 2630 is as follows:

“Every person who shall set up, keep or exhibit any gaming table or gambling device, commonly called A. B. C., E. 0., roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than one hundred dollars, and may be imprisoned any length of time not less than thirty days nor more than one year. ’ ’

Appellant contends that the marble slot machines owned by him and seized in these actions are not gambling devices inhibited by § 2630 of Crawford & Moses’ Digest, and that the order for their destruction should be reversed. The description of these slot machines make them gambling devices per se under the construction placed upon said § 2630 in the case of Howell v. State, 184 Ark. 109, 40 S. W. (2d) 782, and cases cited therein. We might add that they are gambling devices per se because the only reasonable and profitable use to which they may be put is use in a game of chance.

No error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Sparkman Hardwood Lumber Company v. Bush.
    4-3546
    Opinion delivered June 11, 1934.

      Buzbee, Harrison, Buzbee Wright, for petitioner.

      J. H. Loohadoo, for respondent.
   Mehaffy, J.

W. D. McCann filed suit in the Clark Circuit Court against the Sparkman Hardwood Lumber Company, a corporation created by the laws of this State, and summons was served on W. L. Huie of Arkadelphia, Clark County, Arkansas. The. Sparkman Hardwood Lumber Company filed a motion in the Clark Circuit Court to quash summons and service, appearing specially for that purpose and for no other purpose, alleging that it had no place of business in Clark County, Arkansas, and did no business therein, that its chief officer did not live or reside, in Arkansas or Clark County, and stated specifically that W. L. Huie was not its chief officer. A hearing was had upon said motion and the testimony of Eugene E. Fohrell, W. L. Huie and W. D. McCann was introduced. The circuit court overruled the motion to quash. After the motion to quash was overruled, petitioner filed its petition in this court, praying that the summons and service thereof be quashed, and that said circuit court be prohibited from proceeding further therein.

Petitioner’s place of business is in Dallas County, Arkansas, and it has no place of business in Clark County and does no business in Clark County. Eugene E. Fohrell, secretary of the petitioner, lives in Dallas County. Edwin Schaff, the president, lives in Missouri, and W. L. Huie, vice president, lives in Arkadelphia, Clark County. The president, Schaff, only visits the place five or six times a year; vice president Huie goes to the place of business every day from his home in Arkadelphia.

Section 1171 of Crawford & Moses’ Digest, reads as follows: “An action, other than those in §§ 1161, 1165, against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides; but if such corporation is a bank or insurance company, the action may be brought in the county in which there is a branch of the bank or agency of the company, where it arises out of a transaction of such branch or agency.”

It is not contended that the petitioner has any place of business in Clark County and service of summons in Clark County would.not be proper service unless W. L. Huie is its chief officer. The statute expressly provides that the suit may be brought against a corporation in the county in which its chief officer resides. It is admitted that W. L. Huie resides in Clark County where he was served, therefore the only question before the circuit court was whether W. L. Huie was its chief officer.

Eugene E. Fohrell testified, in substance, that he was secretary of the petitioner, and, in addition to being secretary of the company, he was manager; that it was part of Ms duty to see to the entire operation of the company. He resides in Dallas County. Had charge of the clerical details as well as the physical management of the plant. The president of the company, Mr. Edwin Schaff, resided in Missouri and spent five or six days a year in Dallas County. That Mr. Huie was vice president, and there were no other officers of the company. That he was in actual charge of the handling of the business. Mr. Huie resides in Clark County; he spent practically all of his time at the plant, he would drive back and forth from Arkadelphia. He testified that he was the acting manager authorized by resolution of the board of directors. The board of directors gave him authority. He did not have a copy of the resolution; it was not introduced in evidence. He remembered selling some land, and the deed was introduced in evidence. It showed the signature of Sparkman Hardwood Lumber Company by W. L. Huie, vice president. Attest: Eugene E. Fohrell, secretary. There was a resolution introduced showing appointment of Fohrell as agent for service in Arkansas. This resolution was signed b.y W. L. Huie as vice presir dent and Fohrell as secretary. Witness signed checks, Huie did not. They had sold some timber, and he did not know who signed the instrument. Hp to about tw;o_ years ago, North was vice president and Huie was secretary. Witness and Huie are the only two officers of the company who resided in the State. When North was vice president, he was general manager. Later, Mr. Huie was made vice president but not manager. Huie testified that he was vice president and Fohrell was secretary, and that his general duties were to obey orders. He had charge of the books, but Fohrell performed the duties of general manager. Fohrell had supervision over logging operations and activities of .the mill. ' That he was not Fohrell’s boss or superior; he did anything Mr. Fohrell told him to do. He signed the deed as vice president. He also testified that Fohrell was authorized to sign deeds. He did not know whether there was a resolution of the board of directors or not. His testimony and Fohrell’s were substantially the same as to their authority. He-did not know whether Fohrell ever signed a deed or not and did not know how many deeds had been made and did not remember whether he signed them all, bnt said he had authority to do so.

The plaintiff, W. D. McCann, testified in substance: “That Huie was the boss down there, that whatever he said seemed to be the last word; he had been boss for the last seven or eight months. Huie sent lumber to witness at different places, and sent witness to different places to haul logs. If witness wanted to carry lumber to the woods to fix a bridge or wanted to go log hauling or anything, he generally went to Mr. Huie.

The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. When the court has jurisdiction over the subject-matter and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error, and prohibition is not the proper remedy.” Order of Ry. Conductors of America v. Bandy, 177 Ark. 694, 8 S. W. (2d) 448; Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421; Lynch v. Stephens, 179 Ark. 118, 14 S. W. (2d) 257; Roach v. Henry, 186 Ark. 884, 56 S. W. (2d) 577; Crowe v. Futrell, 186 Ark. 926, 56 S. W. (2d) 1030.

Witness Fohreli testified that a resolution was adopted by the board of directors prescribing his duties. When one relies on any written instrument and fails to produce the instrument, the presumption is that the production of the instrument would disprove his contentions. The resolution adopted by the board of directors would have settled the question before the court. Petitioner knew this and alleged in his motion to quash that Huie was not the chief officer, but it did not produce the resolution which it had.

“Where it is apparent that a party has the power to produce evidence of a more explicit, direct and satisfactory character than that which he does introduce and relies on, it may be presumed that, if the more satisfactory evidence had been given, it would have been detrimental to him, and would have laid open deficiencies in, and objections to, his case which the more obscure and uncertain evidence did not disclose. * '* * Mere withholding or failure to produce evidence, which, under the circumstances would be expected to be produced, and which is available, gives rise to a presumption less violent than that which attends the fabrication of the testimony or the suppression of documents in which other parties have a legal interest; but the courts recognize and act upon the natural inference that the evidence is held back under such circumstances because it would be unfavorable.” Miss. River Fuel Corp. v. Young, 188 Ark. 575, 67 S. W. (2d) 581; Ramey v. Fletcher, 176 Ark. 196, 2 S. W. (2d) 84.

We have many times held that if the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition will not be. granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.

In the instant case, as we have already said, whether Huie was the chief officer of the petitioner was a contested question of fact which the lower court had jurisdiction to hear and determine, and we have many times held that the finding of the court on questions of fact will not be disturbed by this court if there is any substantial evidence to support the finding of the lower court. In other words, we do not pass upon the credibility of. the witnesses nor the weight to be given their testimony; this is the province of the trial court, and his finding based upon substantial evidence is conclusive here. The writ is therefore denied.


text:
    O ’Kane v. First National Bank of Paris.
    4-3487
    Opinion delivered June 11, 1934.

      James B. McDonough, for appellant.

      Arnett \d> Shaau, for appellee.
   McHaney, J.

This is an action by appellees against appellant and her husband, "W. S. O’Kane, for the foreclosure of two mortgages given to secure certain indebtedness represented by three promissory notes. One of the mortgages was dated April 6, 1927, and was executed by W. S. 0 ’Kane alone to secure an indebtedness to L. B. Crenshaw. It was sold and assigned to appellee bank after maturity in 1933. The other was dated July 30, 1930, and purported to be signed and acknowledged by both appellant and her husband, the acknowledgment being dated October 7, 1930, and was recorded the same day. This mortgage by express terms made it subject to the Crenshaw mortgage.

The defense to the foreclosure action by appellant was that, although she signed the mortgage of July 30, 1930, she did so under duress and compulsion of her husband, and that she did not acknowledge the same. The court found both issues against her and decreed foreclosure, extinguishing her dower and homestead rights in and to the lands described.

This appeal presents the same questions for review, and these are principally questions of fact. To support her plea of duress, appellant testified as follows: “Well, Mr. 0 ’Kane had been trying to get me to sign the mortgage, and I refused to sign it, and he said I had to sign it. He cursed and made me sign it. ’ ’ She was corroborated somewhat by her husband, but the trial court held his testimony incompetent, and this forms the basis of one argument for reversal by appellant. We do not think it necessary to determine this question in this case, for, conceding without deciding its competency, we are of the opinion that the decree of the court in this respect, as well as upon the issue of whether she appeared before the notary and acknowledged the instrument, is not against the preponderance of the evidence. Appellant admitted she signed the mortgage at her home and that her husband took it to the bank. She did not at any time mention the matter of duress to any official of the bank. Mr. O’Kane took the mortgage to the bank and there acknowledged it before Dolph Guthrie, notary. His wife (appellant) was not present at that time. Officials of the bank testified that she later came in and acknowledged some paper before the same notary, and this paper was handed to the cashier. The acknowledgment was completed October 7, 1930, and was recorded that same day. The certificate of the officer is regular in form, and states that she, “in the absence of her said husband, declared that she had of her own free will executed the foregoing deed and signed and sealed the relinquishment of dower and homestead therein expressed for the consideration and purpose therein contained and set forth, without compulsion or undue influence of her said husband. ’ ’ This mortgage had been delivered to the notary to hold for the acknowledgment of appellant, and, when it was had, it was turned back to the cashier, Mr. Sadler, who had it recorded the same day. Appellant stands alone in denying that she appeared and acknowledged the instrument. She is contradicted, not only by her interest in the result of this lawsuit, but by the certificate of the officer and two officers and employees of the bank, and by her ádmission that she actually signed her name to it. The burden was upon her to establish the falsity of the certificate of the notary, and this she has failed to meet. As said by the late Chief Justice Hart, in Nevada County Bank v. Gee, 130 Ark. 312, 197 S. W. 680: “In our opinion, the weight of the evidence should not be affected by any particular rule peculiar to the subject, but rather the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false. This much may be said, however, under chapter 29 of Kirby’s Digest, a proper acknowledgment is an essential part of the execution of a conveyance. The acknowledgment is an official act done under an official oath and is protected under the presumption the law necessarily indulges in favor of the acts of its own officers. Under our statute, one of the means of evidence upon which a deed can be admitted to record is a certificate of proof or acknowledgment of an officer authorized by our statute to take such proof or acknowledgment. The burden of proof undoubtedly rests upon the person denying the falsity of the certificate, which carries with it the usual presumption that the officer making it has certified to the truth, and has not been guilty of a wrongful or criminal action.

“The notary or other officer before whom an acknowledgment is taken performs a very important duty when he takes and certifies an acknowledgment of a deed or any instrument affecting the title to real estate. For that reason great weight is given to his official act in certifying to the validity of such instruments. The impeachment of his certificate involves a charge of criminal violation of duty on the part of the certifying officer.” See also Miles v. Jerry, 158 Ark. 320, 250 S. W. 34; Clifford v. Federal Bank and Trust Co., 179 Ark. 948, 19 S. W. (2d) 1026; Anthony v. Pennington, 182 Ark. 1039, 34 S. W. (2d) 219; Jolly v. Meek, 185 Ark. 395, 47 S. W. (2d) 43, and cases cited therein.

The evidence is amply sufficient to support the court’s finding that she did appear before the officer and did acknowledge the instrument. Having done so, and having solemnly and without compulsion stated to the officer that she had signed same “without compulsion or ■undue influence of her said husband,” sbe ought to be and is now estopped from so contending.

The decree of the chancery court is correct, and must be affirmed.


text:
    Roach v. Haynes.
    4-3489
    Opinion delivered June 11, 1934.

      John Baxter, for appellant.

      G. Warfield and Sam Robinson, for appellee.
   Butler, J.

T. W. Roach, the appellant, is engaged in the work of the construction of levees, and as a part of his equipment a tower machine was in use. This machine is composed of a tower about one hundred feet high with cables, engines, etc., installed thereon. It was used for placing dirt on the levee by means of buckets or scoops moving on cables from a point between the levee and the river. This structure moved on wheels along a track made of cross ties and heavy timbers, constructed in sections called “mats.” As the work progressed the tower was pulled along the track by means of a cable which was fastened to a “dead man” and wound around a drum, thence back under the machine. After the machine passed over one section the cable was attached to that section, which was then pulled underneath the machine to the front so that the machine could pass over it again. A small steam engine was used in pulling the machine forward and also for bringing forward the “mats” or sections. This engine was located on a platform about twenty feet above the ground floor. The floor of the machine was about six feet above the ground level at the rear and about four feet in front. It was constructed in this manner because it operated on a slope.

The appellee Haynes was in the employ of the appellant and in charge of the operation of the tower machine. On the 10th of October, 1932, in the regular course of his employment, the appellee was under the machine taking some measurements at a time when the ‘£ mat ’ ’ over which the machine had just passed was about to be pulled forward. On a given signal the engine was started suddenly by the application of a full head of steam which caused the cable to vibrate violently from side to side, striking Haynes and severely injuring him. This suit was brought to recover damages for such injuries, and resulted in a verdict and judgment in favor of the appellee, from which is this appeal.

It is contended that the injury was the result of a risk assumed by the appellee; that there was no negligence on the part of the appellant proved, that the cause of the injury was the negligence of the appellee, and, lastly, that the case was submitted to the jury on improper instructions.

In determining these questions, under settled rules, we must view the evidence with every reasonable inference arising therefrom in the light most favorable to the appellee, and which so considered may be thus stated: The appellee was experienced in the nature of the work he was performing and aware of the danger ordinarily incident thereto. He had been in the employ of the appellant for some time before the accident occurred and had operated the tower machine, beginning about the first of August, 1931, for a few months. Por an interval for some reason the machine was not in operation, and then about July, 1932,' while the machine was at Greenville, Mississippi, appellant obtained a contract to construct a levee near Grand Lake in Chicot County, Arkansas. The machine was moved there and work began on that job about July 10th with Haynes in charge of the operation of the machine. At the time of the removal of the equipment, between the first and the tenth of July, Haynes notified the appellant that the small engine used for moving the machine forward and for bringing forward the “mats” was worn and defective. The appellant promised that he would have it repaired when it was taken “to the lower job.” The defects were described to be the result of a worn condition, which caused about a fifty per cent, loss of power. The cylinders and pistons were worn, and, if the engine was started in the proper manner, it would come “on center” and stop. This necessitated the opening of the throttle wide and letting the steam start with full head in order that the engine would operate. This would cause the slack in the cable to be taken up quickly, resulting in the cable whipping from one side to the other. If the engine had been in proper condition, the proper manner of operation was -to start it slowly, gradually applying the cable and tightening it before applying full steam. The engine could not be repaired while on the job, and it would be necessary to stop operations and take it to some machine shop for the repairs to be made. The engine was not repaired before beginning work on the lower job, and Haynes called that fact to the attention of Mr. Frank Grant, who, according to the claim of Haynes, was the superintendent of the job. Grant promised several times to have it fixed at the first favorable opportunity when something would occur— such as rains or anything else which would cause the work to stop for a time — and that, on the occurrence of an event of this nature, the engine would be taken to the shop at Greenville and there be repaired. Relying on the promise of the appellant and Grant, Haynes continued to operate the tower machine up until the time of his injury and, not realizing the extent of his injury, operated it for some time longer.

The above facts are drawn from the testimony of the appellee. There was no dispute in the testimony as to the defective condition of the engine. As to the promise of repair, Mr. Roach, when asked if Haynes had made complaint to him at Greenville about the engine being defective, answered, “Not that I remember.” Mr. Grant, in testifying regarding the notice as to the defective condition of the engine claimed by Haynes to have been given him and as to whether or not it was before or after the injury, when asked, “Did he ever make any such complaint to you,” answered, “I don’t think so — not before then. He did afterwards.”

It will be observed that there were positive statements of Haynes regarding the notice and promise of repair both given to and made by Roach and Grant, while there is not a positive denial by them of those facts. There was therefore sufficient substantial evidence to warrant the conclusion of the jury that such notice was given and the promise of repair made.

There is a conflict in the testimony relative to the position Grant occupied and as to whether or not he was clothed with authority to represent the appellant with respect to shutting down the work for the purpose of having the engine repaired. Haynes testified that Grant was general superintendent, and that, while he himself directed the operation of the tower machine, kept it in shape, and did such repairs to its structure or machinery as might be done without serious interruption of the work, the general supervision of the work was under Grant, from whom he received hisi orders. The testimony of Boach details the particular duties required of Grant, and that Haynes “was superintendent of the tower machine and had charge of all the machinery, ’ ’ but did not deny that given by Haynes to the effect that Grant was in charge of the general supervision of the work and that Haynes took his orders from him. The testimony of Grant relative to this told of his specific duties, which were that of a timekeeper and commissary man, and the statement that he did not have anything to do with the operation of the tower machine. But there was no denial by him of that part of the testimony of Haynes to the effect that he was clothed with general supervision of the work. We think that the evidence as to the authority of Grant to receive the notice of the defective condition of the engine and to have the repairs made is sufficient to justify the submission of that question to the jury, and its conclusion that he had such authority is binding on us, and therefore notice to him was as effectual as if made to the appellant himself. This state of case makes applicable the rule announced in St. Louis, I. M. & S. R. Co. v. Holman, 90 Ark. 555, 120 S. W. 146, cited by the appellee, and creates an exception to the rule that an employee assumes all the ordinary risks of his employment and such extraordinary risk as may result from defects in the instrumentalities used of which he is aware.

As said in the case cited supra: “The effect of a promise to repair by the master, and the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation, whereby the master assumes the risk impendent during the time specified for the repairs to be made. Where no definite period is specified in which the given defects are to be remedied, the suspension of the master’s right to avail himself of the defense of assumption of the risk by the servant continues for a reasonable time. 1 Labatt, Master and Servant, §§ 424, 425, and notes thereto. No matter how obvious the defects or how imminent the perils therefrom, the servant, pending the promise of the master to repair, does not assume the risk of the given defects by continuing in the master’s service in reliance upon his promise. For, as was said by the .Supreme Court of Illinois in Swift & Co. v. O’Neill, 187 Ill. 337: ‘By the promise of the master a new relation is created between him, and the employee whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following his promise.’ ”

The appellee was skilled in the operation of the appliances with which the work was done and familiar -with the dangers incident to the defects therein, and ordinarily, as insisted by the appellant, where the danger arising from the negligence of the master is so obvious in its nature as to be readily discoverable by one of ordinary intelligence, the employee, by voluntarily continuing in the situation, assumes the hazard which exempts the employer from liability on account of injury. This was the theory on which instruction No. 6, requested by the appellant and given by the court, was based, which instruction was more favorable to him than he was entitled to. This instruction, and the appellant’s theory would have been correct, had it not been for the notice given to the employer and his promise to repair. This fact distinguishes the instant case from those cited and relied upon by the appellant announcing the doctrine of assumption of risk. The promise of repair creates a new relation between the employee and the master which removes the assumption of risk for a reasonable time pending the compliance of the promise, and it is only where the danger is apparently so great and imminent that no prudent person would continue in the work that the assumption of risk would continue. See cases first cited and Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120. In this case it cannot be said as a matter of law that the defect in the engine caused its operation to be so dangerous that no prudent person under any circumstances would continue to use it or to work in close proximity thereto. Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 123 S. W. 1180; Pekin Cooperage Co. v. Duty, 140 Ark. 135, 215 S. W. 715; Mama Coal Co. v. Dodson, 141 Ark. 438, 217 S. W. 475.

Appellant is in error in the contention that the evidence fails to show any negligence on his part. From the evidence accepted by the jury as true, he was negligent in the failure to repair the engine within a reasonable time after having received notice of its defects and after making promise to repair the same.

On the contention that the proximate cause of appellee’s injury was not the negligence of appellant, it is argued that the injury was occasioned by the negligence of the appellee himself, in occupying a place of known danger without advising those who operated the engine that he was about to take this place. It is true that the appellee did not tell the operator of the engine, or any one else of the employees, that he was about to go under the tower machine, and, as argued by the appellant, he was well aware of the condition of the engine and that from the necessity of the manner of its operation the cables, in taking up the slack, would be switched and jerked about in varying degrees. But he was in the line of his duty in going under the machine, and this was necessary for the proper prosecution of the work. In testing the question of the degree of care the appellee took or failed to take, consideration should be given to the fact that he was engaged in the performance of necessary work and had to give to it his attention as well as the particular place he was then occupying. This place was twelve feet distant from the line of cable, and it is not shown that at that distance the appellee would have been in such an obviously dangerous place that one of ordinary prudence and caution would not have occupied it. It is well settled that, where an employee works in a situation where the danger is so obvious and imminent that no person of ordinary prudence would expose himself thereto, then the negligence would be such as to relieve the employer of liability. On the other hand, however, where reasonable minds might draw different conclusions as to the danger and its imminence, it becomes a question of fact for the determination of the jury. St. Louis, I. M. & S. R. Co. v. Mangan, 86 Ark. 507, 112 S. W. 168; Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 123 S. W. 1180; E. L. Bruce Co. v. Leake, 176 Ark. 705, 3 S. W. (2d) 6; Newport Mfg. Co. v. Alton, supra. The court submitted the question of the appellee’s contributory negligence to the jury under an instruction which fully and correctly declared the law on that subject.

It is lastly insisted that instructions Nos. 1, 2 and 3 were repetitions of identical statements, the principal objection being that in all these instructions the court assumed as a matter of law that the engine was defective. We have examined these instructions and find them not open to the objections made. The question as to whether or not the engine was defective was submitted to the jury, and in this respect was more favorable to the appellant than it should have been. There is no dispute in the evidence as to the condition of the engine and no denial by any witness that the statements regarding the defective condition of the engine were not correct.

On the whole case, we find no error prejudicial to the appellant, and, as there is substantial evidence to support the verdict, the judgment, is affirmed.


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    Williams v. Clement.
    4-3492
    Opinion delivered June 18, 1934.

      E. W. Brockman, for appellants.

      Bridges, McGaughy -<$> Bridges, for appellee.
   Johnson, C. J.

This replevin action was instituted by appellee, Virginia C. Clement, against Ed Williams, et al., trustees for Pleasant Grove Baptist Church, colored, in the municipal court of Pine Bluff seeking possession of a certain piano. Appellee was successful in the municipal court and appellants appealed to the circuit court of Jefferson County wherein results were obtained not dissimilar to those in the municipal court, and this appeal is likewise prosecuted, which must result as in the lower courts. The facts are not in material dispute and may be summarized as follows:

Prior to 1932 appellee owned the piano in controversy; in January, 1932, she delivered it to Kohn & Kohn Music Company of Pine Bluff for storage, the storage to be paid by use of the instrument for demonstration purposes. While, the piano was thus stored, appellants representing the negro Baptist Church purchased same from Kohn & Kohn Music Company paying full value therefor in cash, without notice of appellee’s ownership or circumstances indicating her interest.

This ease is ruled by Forest v. Benson, 150 Ark. 89, 233 S. W. 916, and cases therein cited. Since the rendition of the opinion of this court in McIntosh v. Hill, 47 Ark. 363, 1 S. W. 680, we have consistently held that possession of personal property is only prima facie evidence of title, and that the doctrine of caveat emptor prevails notwithstanding the possession; also that the prima facie title must yield to the actual title when asserted unless the actual owner has done some affirmative act, or has neglected to speak when called upon to do so, which estops the actual owner in his present assertions. The trial court found, as a fact, that appellee was not estopped in asserting her actual title to the piano in controversy, and this finding is not without substantial evidence to support it. The doctrine here announced or restated is not in conflict with Georgia Casualty Company v. Board of Directors, 188 Ark. 1122, 70 S. W. (2d) 33, or any other opinion of this court on the subject here under consideration.

No error appearing, the judgment is affirmed.


author: Kirby, J.

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    Martin v. State.
    Crim. 3884
    Opinion delivered June 18, 1934.

      Vernon Bankston, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Kirby, J.

Appellant was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one Young Butler. He was convicted of murder in the second degree, and given a sentence of sixteen years in the penitentiary, and has prosecuted this appeal to review and reverse that judgment.

It is assigned as error tliat the testimony is not sufficient to support the conviction. This assignment of error may be disposed of by saying that, according to the testimony on behalf of the State, the defendant made an unprovoked assault upon the deceased at a church during the church services. The parties were all negroes.

It is assigned as error that the court refused to charge the jury as to the difference between murder in the first degree and murder in the second degree. But the record does not support this assignment. The court fully and correctly defined the crime of murder, and, after doing so, then charged the jury as follows: “If you find from the evidence beyond a reasonable doubt that the defendant in Ashley County, Arkansas, and within three years next before the return of this indictment into court, with malice aforethought but without premeditation or deliberation, shot and killed the deceased, Young Butler, as alleged in the indictment, you will find him guilty of murder in the second degree.”

Thereafter the court gave an instruction requested by appellant defining premeditation and deliberation.

It is insisted also that the court erred in failing to charge the jury as to the crime of manslaughter and the difference between that crime and the crime of murder. But it does not appear that the court was asked to do so, or that any instruction was requested by defendant on that subject. It has been frequently decided that, where an accused desires an instruction on a particular issue not covered by the instructions given, he should request a correct instruction thereon, and he will not be heard to complain where he fails to do so. Lowmack v. State, 178 Ark. 928, 12 S. W. (2d) 909. It was held in the case of Graves v. State, 155 Ark. 30, 243 S. W. 855, (to quote a lieadnote) that: “Where defendant requested no instruction submitting the issue of manslaughter in a prosecution for murder, he cannot complain of the court’s omission to give such an instruction.”

It is insisted that a new trial should have been granted on account of newly-discovered evidence to the effect that the deceased had made violent threats against the accused which had not been communicated but which would have been admissible, as tending to show who had been the aggressor in the fatal difficulty, notwithstanding the fact that the threats had not been communicated. It was not shown, however, that this evidence could not have been procured had proper diligence been exercised, and for this reason the court did not err in refusing appellant’s motion for a new trial on the ground of newly-discovered evidence. Lewis v. State, 155 Ark. 215, 244 S. W. 458, and cases there cited.

It is finally insisted that the verdict returned was a quotient verdict, arrived at by adding together the number of years for which each juror thought the defendant should be sentenced for murder in the second degree— all the jurors having voted that the accused was guilty of that crime — and dividing- that total by twelve. It was stipulated “that, if the members of the jury were permitted to testify, they would give the testimony as outlined in the motion for a new trial signed by the defendant.”

This method of arriving- at verdicts was condemned in the case of Williams v. State, 66 Ark. 264, 50 S. W. 517; but it appears that no objection was there raised as to the competency of the testimony of the jurors to that effect. The court there said: “The facts are admitted, and we need not therefore discuss the method by which they were established.” The opinion recites that evidence bearing-on this point ivas introduced both by the State and the defendant at the hearing of the motion for a new trial.

We do not understand that the evidence of the jurors was offered without objection on the hearing of the motion for a new trial in this cause. The stipulation signed by the prosecuting attorney reserved the question of its competency, and admitted only that the jurors would so testify if they were permitted to testify.

This identical question has been several times considered, and the cases on the subject were reviewed in the recent case of Patton v. State, ante p. 133, where an attempt was made to show that the verdict upon which the accused had been sentenced was a quotient verdict, similar to the one here brought into question. We there held that the verdict of a jury could not be impeached by the testimony of a member of the jury except only to show that the verdict was made by lot, and there was no other testimony except the offered testimony of the jurors as to the manner in which the verdict had been reached. It was not error therefore to refuse to grant a new trial upon this incompetent testimony.

Upon a consideration of the case in its entirety there appears to be no error, and the judgment must therefore be affirmed, and it is so ordered.


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    Brown v. Fretz.
    4-3506
    Opinion delivered June 25, 1934.

      W. G. Benton, for appellant.
   Kirby, J.

Appellant brought this suit to foreclose two mortgages given him by appellee. One mortgage secured a note dated December 31, 1931, for $135 executed by appellee to appellant’s order. The other secured a note dated January 8, 1932, for $672.27, also executed by appellee to appellant’s order. An answer was filed which alleged that each note was usurious and void for that reason.

The court found there was no usury in the note first mentioned and decreed the foreclosure of the mortgage which secured it. It was found and decreed, however, that the second note was usurious and void for that reason, and this appeal has been prosecuted to reverse that decree. No appeal was prosecuted from the decree ordering the foreclosure of the mortgage securing the note first mentioned.

Appellee testified that he borrowed $607.97 from appellant, from which a recording fee of $4.50 was deducted, and that appellant charged him $64.33 for making- the loan, which was evidenced by the note for $672.27, and that this note bore interest at ten per cent, per annum from date until paid.

Appellee’s testimony makes a case of usury, but it is categorically denied b3r appellant. Appellee testified that he received only $607.97, from which the $4.50 recording fee was deducted. This fee of $4.50 cannot be considered in determining whether the loan was usurious, for, although it was not paid to the borrower, it was paid out for his benefit. This was a charge which appellee agreed to pay and must be regarded as a part of the money which he received.

The purpose of the loan here- under review was to pay and satisfy a judgment which had been recovered against appellee, and to redeem his land from sales for taxes. Appellee itemized the payments which appellant made for his account. These, including an abstract of the title, which cost $26, totaled only $607.97, and appellee denied that any other sum had been paid out for his account or benefit.

Appellant testified that he was not in the loan business, and had never taken bur three mortgages in his life. That appellee applied to him to make the loan, and urged that it be made to save his farm. He was offered a bonus to make the loan, but declined to accept it and took a note only for the actual amount that he had paid out at appellee’s request and for his benefit. Appellant mentioned two items which appellee at first denied receiving. One of these was evidenced by a check to the county treasurer for $15.55, and another was a check to the sheriff for $8.52. Upon being- recalled, appellee admitted the correctness of these items, which reduced the bonus which lie claimed to have paid for the loan by the amount of the two items. The loan was, according to appellee, still usurious notwithstanding these deductions.

Appellant testified that, after he agreed to make the loan, he directed J. W. Martin to prepare the abstract, to ascertain the amount of money which appellee required, and to prepare the necessary papers, and that he paid the sum which Martin told him would be required, and that the note was taken for the aggregate payments which he made, and for nothing more.

Martin testified that appellant and appellee came to his home and told him that appellee had some land which was about to be sold under an execution, and that appellant was going to loan appellee “some money to clear up his indebtedness.” It was not then known what sum would be required, but Martin was directed to obtain this information and 'to prepare the papers. It was quite a job to do this and took Martin about two days to do so. Martin further testified: “We didn’t know how much it would take to take up this indebtedness. I prepared the abstract and looked up the judgment and got the taxes on other lands besides this land and got everything up, and we came to the courthouse and Mr. Brown issued his checks to cover these different items. I drew the mortgage and Mr. Brown paid for that. Q. These items had been arrived at by you and Mr. Fretz? A. Yes, sir, and the other officials around the courthouse.”

We conclude therefore that the transaction was not usurious, but, if so, there was no intention to charge usury. It was held in the case of Leonhard v. Flood, 68 Ark. 162, 56 S. W. 781, that usury will not be inferred where from the circumstances, the opposite conclusion can be fairly and reasonably reached, and we think the conclusion that appellant did not intend to charge usury may be fairly and reasonably reached.

It was also held in the case of Richardson v. Shattuck, 57 Ark. 347, 21 S. W. 478, to quote the headnote, that: “A loan bearing the highest legal rate of interest, secured by a mortgage of land, is not usurious because made upon condition that the borrower should, in addition, furnish an abstract of title of the land and a certificate that it is not incumbered, that he should have it inspected and valued by a competent person, and that he should pay the fee for having the mortgage recorded. ’ ’

The charge of such expenses as preparing the ab-tract and recording the mortgage cannot therefore be deducted in determining the actual amount of the loan. It follows, from what we have said, that the decree of the court below is erroneous, and it will be reversed, and the cause will be remanded with directions to enter a decree conforming to this opinion. It is so ordered.


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    Crowe v. Davidson.
    4-3491
    Opinion delivered June 25, 1934.

      Ingram ¡é Moher, for appellants.

      Frank G. Douglas, for appellee..
   Butler, J.

The appellant Crowe owned 314 acres of land in Prairie County, and Davidson 160 acres of land in Mississippi County, which they agreed to exchange according to the terms of a contract entered into on May 10, 1930. According to this contract, each was to convey to the other their respective lands by warranty deed, their wives joining therein, with the release of dower and homestead. Davidson agreed to convey an unincumbered title and to assume the payment of a $7,000 mortgage on the lands Crowe was to convey to him in exchange for his Mississippi County lands. It was further agreed that, after the execution of the deeds, Crowe was to retain possession of the Prairie County lands for the years 1930 and 1931 “rent free” and also for the year 1932, but for the use of the- land for the last year he was to pay $3',600, to be evidenced by note executed and delivered not later than January 1, 1932, bearing interest from maturity at the rate of six per cent, per annum.

Crowe conveyed his lands to Davidson as contracted. Davidson also executed and delivered his warranty deed to the Mississippi County lands and assumed the payment of the $7,000 mortgage, but his wife did not join in the execution of the deed and release her rights of dower and homestead. The Mississippi County lands, at the time of the exchange of deeds, had been rented by Davidson for the years 1930 and 1931, tenants then being in possession. They had executed rent notes for the rent of the land for these years and these notes, amounting to the sum of $3,200, were delivered by Davidson to Crowe at the time of the transfer.

Crowe failed to execute the $3,600 note, although he retained possession of the Prairie County lands throughout the year 1932, whereupon Davidson brought this suit in the chancery court of Mississippi County for the collection of the $3,600, and to subject the lands in that county which had been conveyed to Crowe to the payment of the amount sued for.

Crowe filed a petition in this court for a writ of prohibition challenging the jurisdiction of the court on the theory that the action was one merely to enforce the collection of a debt and properly triable in Arkansas County, the county of his residence where he was served. On the hearing, the prayer of the petition was denied, this court holding that the complaint stated a cause of action on a demand or interest in lands lying in Mississippi County, and that the chancery court of that county had jurisdiction. Crowe v. Futrell, 186 Ark. 926, 56 S. W. (2d) 1030. Subsequent to this ruling, the defendant Crowe, filed answer renewing and preserving his challenge to the jurisdiction of the court, admitting his execution of the contract and the deeds, but pleading the failure of plaintiff’s wife to execute the release of dower and homestead. He alleged that, because' of this, the contract was changed and modified by defendant’s letter of June 6, 1930, accepted by plaintiff, to the effect that the wife’s signature was waived, and in consideration therefor it should be optional with defendant whether he make the note for $3,600, and, if he should elect not to make the same, plaintiff should pay to him $400 and take possession of the Prairie County lands January 1, 1932.

Davidson, in support of the allegations of his complaint, testified that Crowe voluntarily waived the signature of Mrs. Davidson and executed an affidavit by the terms of which he made such waiver and agreed that the failure of Davidson’s wife to execute the release of dower and homestead would not be deemed to be a breach of the contract.

Crowe testified that when he learned through his agent, a Mr. Price, who resided near Mr. Davidson in Illinois, that the latter could not procure the signature of his wife, that he (Crowe) wrote a letter addressed to Mr. Davidson of date June 6, modifying the contract as alleged in his answer, and sent same through the mails to his agent in Illinois with directions that it be given to Davidson. Price testified that he received the. letter and gave it to Davidson who assented to the modification.

The court found the issues of fact in favor of Davidson, gave judgment for $3,600' with interest from December 1, 1932, until paid, and held that the agreement to execute said note was a part of the consideration for the transfer by Davidson of the lands in Mississippi County to Crowe and fixed a lien on these lands to secure the payment of the judgment with directions that, if same was not paid within the time named, the lands be sold to satisfjr the same.

On appeal there are two questions presented; first, that the finding of the trial court was against the preponderance of the testimony. On this branch of the case it will be noted that Crowe does not know and did not say that his letter of June 6, 1930, was in fact delivered to Davidson and its modification of the contract accepted by him. Price is the only witness who testified to these facts, and his statement is flatly contradicted by Davidson. The appellant argues that there must have been some consideration for the waiver of the wife’s release of dower and homestead; that none has been shown by Davidson, who is interested in the result, and that Price is not. The majority of the court is of the opinion that the finding of the trial court cannot be said to be against a preponderance of the evidence. The contract is unusual, and on its face appears highly advantageous to Crowe. He was getting a farm of 160 acres of land in Mississippi County free from any incumbrance, already rented for the years 1930 and 1931. The rent notes had been given him. For this he was exchanging a farm containing 314 acres incumbered by a $7,000' mortgage which he was to have “rent free” for two years. In view of the favorable terms above, it might be that he was quite willing to waive the release of dower and homestead.

The court’s finding that the contract had not been modified leaves the contract of May 10,1930, unimpaired. It was introduced in evidence and supports the allegations of the complaint. On the question of jurisdiction, the important paragraph of the contract, after reciting the description of the lands in Mississippi County then belonging to Davidson and his agreement to convey the same free of all incumbrance, provides: “That, for and in consideration of said conveyances, the said party of the second part agrees to convey to the party of the first part the” [describing lands] “subject however to a Government loan in the sum of $7,000 which the party of the first part assumes and agrees to pay provided however, the said party of the second part is to keep and retain possession of said Prairie County land above described for the years 1930 and 1931, rent free, and further as part of the consideration of this exchange of properties, the party of the second part agrees to rent or lease said Prairie County land from the party of the first part for the year 1932 in the sum of-$3,600, same to be evidenced by a note to be executed and delivered, not later than January 1,1932, -bearing interest from maturity at the rate of six per cent, per annum until paid, said note to be paid in the State Bank of Blue Mound, Illinois. ’ ’

The appellants contend that the contract was fully consummated and carried out when the deeds were exchanged. They call attention to the fact that the granting-clause in the deed from Davidson to Crowe contains no reference to the note to be given January 1,1932, as part consideration, and argue therefore that the recitals of the deed must govern as to what in fact was the consideration. It is well settled that the recitals as to the consideration in a deed are not conclusive, but are subject to explanation, contradiction or modification. Pate v. Johnson, 15 Ark. 275; Hildebrand v. Graves, 172 Ark. 198, 288 S. W. 4. Then too, this court has virtually decided in the case of Crowe v. Futrell, supra, that the $3,600 was a part of the consideration and, indeed, that is the express language of the paragraph of the contract which we have quoted. The entire consideration was the exchange of the lands, the assumption of a $7,000 mortgage by Davidson, and the agreement by Crowe to pay $3,600. It took all of these things to constitute the entire consideration. This court, in Crowe v. Futrell, supra, said: “In the suit brought in the Mississippi Court, the plaintiff alleged that this $3,600 was a part of the consideration, that it had not been paid, and that he was entitled to a lien on the lands in Mississippi County to secure the payment. If this was a part of the consideration entitling- the plaintiff in the case to a lien on the lands in Mississippi County, the court had jurisdiction.”

Since the execution of the contract quoted from was admitted and the court found that the same had not been modified and changed, it follows that the decree is correct, and must be affirmed. It is so ordered.