author: McCulloch, C. J.

text:
    Huckaby v. Holland.
    Opinion delivered October 10, 1921.
    1. Trial — instruction—specific objection. — To an ambiguous instruction, not inherently incorrect, the objection should be specific, and not general. So held where, in an action on a note . to which the defense was that the note had been altered by striking out a clause retaining title to a chattel sold, an instruction that “if you should find from the evidence that the note had the cause retaining title to the car in plaintiff erasure [instead of erased], then you should find for defendant,” was not open to a general objection.

      2. New trial — newly-discovered evidence. — It was not error to deny a new trial for newly-discovered evidence which was merely cumulative, where there was a lack of diligence in securing such evidence.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      J. E. London and Robt. J. White, for appellant.
    A new trial should have been granted because the verdict was not supported by the evidence. C. & M. Digest, §311, par. 6; 137 g. W. 925; 135 S. W. 922.
    The court should have granted a new trial upon the grounds of newly discovered evidence, sufficient diligence having been shown. C. & M. Digest, §1311, par. 7; 26 Ark. 496; 92 Ark. 519. It must be sustained by affidavits showing its truth. Kirby’s Digest, §6219.
    The affidavits of Corbin Holland, Lizzie Burket, his attorneys and Crawford were of sufficient probative force to entitle him to a new trial, and were not cumulative merely. 70 S. E. 975; 81 Pac. 184; 111 N. W. 540; 93 S. W. 10; 104 Pac. 529; 69 N. E. 264; 33 Ind. 309; 99 Miss. 274; 110 Pac. 699; 15 N. W. 258; 66 Ark. 612; 141 S. W. 196; 85 Ark. 179; 190 S. W. 851; 222 S. W. 724; 126 N. E. 841; 77 S. W. 397; 94 N. E. 428; 218 8. W. 827; 126 N. E. 223; 101 S. E. 192; 174 N. W. 339; 175 N. W. 166; 177 Pac. 859; 209 S. W. 45; 80 So. 858; 255 Fed. 182; 122 N. E. 670; 170 N. W. 224; 173 N. T. Sup. 15; 207 S. W. 487.

      E. L. Matlock, for appellee.
    The court did not err in giving the instruction and in saying that it stated all the law there was in the case. No specific objection to the instruction was made at the time. 137 Ark. 319; 135 Ark. 499. If appellant thought the instruction would mislead the jury, a specific objection should have been made at the time. 132 Ark. 54; 137 Ark. 530; 135 Ark. 499.
    The court properly instructed the jury, and there' was substantial legal evidence to sustain the verdict. 90' Ark. 100; 75 Ark. Ill; 84 Ark. 406; 85 Ark. 193. The burden was upon appellant to show that the note had been changed before he signed it. 119 Ark. 282.
    Cumulative evidence is not sufficient to justify the granting of a motion for new trial.
    If there was a reservation of title, it was waived by bringing suit on the debt. 67 Ark. 206; 78 Ark. 501; 78 Ark. 569; 91 Ark. 319; 92 Ark. 530; 97 Ark. 432.
   McCulloch, C. J.

D. C. Holland and appellant, T. R. Huckaby, executed a promissory note to appellee, J. F. Holland, for the sum of $1,100, the price of an automobile sold by appellee to D. C. Holland. Appellant’s name appears signed to the note as one of the joint makers, but, according to the undisputed evidence, he signed merely as surety for D. C. Holland. The note concludes with the following clause: “The above note was given for Dodge car.” This is a suit on the note, and the only defense is that the note, when signed, contained a clause retaining title to the automobile in appellee as the seller thereof, and that this clause had, without the consent of appellant, been erased.

There is a conflict in the testimony, and we think there was .testimony adduced legally sufficient to justify the submission of the issue whether the clause mentioned was a part of the note when signed by appellant. It appears from the testimony that, after the parties had agreed upon the execution of the note, they repaired to a certain mercantile establishment and there obtained a printed form of note containing a clause for the retention of title. That clause appeared at the time of the trial to have been erased,'but appellant’s testimony was to the effect that the clause was in the note at the time of its execution. Appellee testified positively and unequivocally that the clause retaining title to the car was not a part of the note at the time it was signed. We can not, therefore; sustain the contention of counsel that the verdict in appellee’s favor on this issue was altogether without testimony to support it.

It is insisted that the court erred in giving the following instruction:

“If you find that the note in suit has been changed in a material matter since it was signed, by erasure or otherwise, then it will be your duty to find for the defendant, Huckaby, against the plaintiff, but if you should find from the evidence that the note had the clause retaining title to the car in the plaintiff erasure, then you should find for defendant Huckaby.. That is all of the law there is to the case.”

It is contended that this instruction is so vague that it is misleading. There was, however, no specific objection to it, and the only objection was a general one, We think that, while the instruction is ambiguous, and therefore, uncertain to some extent, it is not inherently incorrect, and that the objection to it should have been specific, so as to point out to the court the defect in the language used. It is manifest that the court meant to tell the jury that, if the clause retaining title to the car in the plaintiff had been erased after execution of the note, the verdict should be for appellant, and the error in the instruction is doubtless a clerical one in copying.

The assignment of error most earnestly insisted upon here relates to the ruling of the court in refusing to grant a new trial on account of evidence alleged to have been newly discovered. Appellant filed with his motion for a new trial several affidavits, one being from W. T. Crawford, who was assistant cashier of a bank at Alma, who testified that the note was sent to that bank for collection, and that it then had in it the clause retaining title to the car. Affidavits of other witnesses tended to show admissions on the part of appellee that the note had originally contained the clause in question, but that the same had been erased. This testimony was cumulative, and for that reason the court was justified in refusing to grant a new trial on that ground. Moreover, there was a lack of diligence, which justified the court in granting the motion.

Appellee further contends, in defense of the judgment, that, since he had the right to make an election not to enforce the clause retaining- title, an alteration of the note in that regard was not material. It is unnecessary, however, to discuss that question, for the reason that we find that the case was submitted to the jury upon the sole issue joined by the parties themselves whether the erasure was made before or after the note was signed, and that that issue was properly submitted to the jury, and there is no error in the proceedings. The judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Forrest v. Benson.
    Opinion delivered October 10, 1921.
    1 Replevin- — sufficiency of evidence. — In replevin to recover an automobile, evidence held legally sufficient to justify the submission of the question whether or not plaintiff was the owner.
    2. Property — presumption from possession and burden of proof. —Possession of personal property is only prima facie evidence of title which yields to the actual title when it is asserted, and the buyer who trusts to appearances must suffer the loss if they prove delusive.
    3. Replevin — instruction.-—In an action to recover an automobile it was error to submit to the jury whether plaintiff “permitted the property to be disposed of to an innocent purchaser under such circumstances as would lead an ordinarily prudent person to believe that the property was rightfully sold,” where there was no proof of any such misleading circumstances.
    4. Estoppel — permitting another to take out license on automobile. — The fact that the owner permitted one to whom he had loaned his automobile to take out license in his own name will not estop him to claim the car as against one purchasing from the lendee without knowledge of such fact.
    Appeal from Pulaski Circuit Court; Guy Fulk, Judge;
    reversed.

      Floyd Terral and J. G. Marshall, for appellant.
    Mere possession of personal property belonging- to another is not a sufficient badge of ovynership or right of disposition in the possessor to enable him to confer title on an innocent purchaser. 25 L. R. A. (N. S.) 760, note; 25 Am. Dec. 604, note; 62 Ark. 84; 20 Wend. 278. An estoppel cannot he created by merely intrusting possession of personal property to another. 54 Minn. 71. • Possession by a bailee of personal property of the bailor does not confer colorable authority upon the bailee to sell or work an estoppel against the owner. 53 Minn. 27; 100 S. W. 351; 70 Am. Dec. 226; 42 Am. Rep. 332; 42 111. 417; 42 Ark. 473. Forrest was not present at the sale, hence the estoppel created by standing by and encouraging a sale, or failing to object thereto, is absent. 10 Ark. 211; 14 Ark. 505. There is no showing in the record of any of the indicia of a right of disposition in Green, nor any act on the part of Forrest calculated to mislead any one into believing that Green had the right to sell the car or give title to it.

      Troy W. Lewis, for appellee.
    If the owner of personal property suffers another to have possession of the property and of the documents which are the indicia of property, a bona fide purchaser for value from such possessor can hold the property against the true owner. Burdick on Sales, 198, 200; 35 Cyc. 357, note 6; 24 R. C. L. 665 and authorities.
   McCulloch, C. J.

This is an action instituted in the Pnlaski Circuit Court by appellant against appellee to recover possession of a Ford automobile, the ownership of which is asserted by appellant. Upon a trial of the issues before a jury it resulted in a verdict in appellee’s favor.

Appellant resides in the city of San Antonio, Texas, and claimed that he was the owner of the automobile there and lent it to one Green, who brought it to Little Rock and, without appellant’s knowledge or consent, sold it to R. L. Bibb, who in turn sold it to appellee. It is undisnuted that Bibb purchased the car from Green in good faith and without any information concerning appellant’s claim of ownership, and that Benson likewise was innocent of any information concerning an adverse claim when he purchased the car from Bibb. The car was originally purchased by Green from a factory agency in San Antonio, and Green executed a mortgage on the car to secure the purchase price. According to appellant’s testimony he made payments on the car for Green, and finally paid off the mortgage and caused the same to be assigned to him, and that Green thereupon sold and delivered the car to him. This occurred in the summer of 1918. In February or March, 1919, Green left San Antonio with the car in company with one Staehle, and made a tour of several States engaged in some kind of an advertising business. They went to New Orleans and spent a few days, and thence to Baton Rouge, Natchez, Vicksburg, Monroe, Shreveport and Texarkana, and on August 17, 1919, they arrived in Little Rock, and placed the car in a garage with which Bibb was connected in some capacity. Green stopped at one of the hotels in Little Rock and-became indebted in a considerable amount for a board bill and pledged the garage claim check or ticket to the hotel management as security for the board bill. On August 23 appellant came to Little Rock in response to a telegram from Staehle, stating that Green had been injured in a fight, and after appellant’s arrival here he advanced money to Green with which to pay his board bill. Appellant immediately returned to Texas, and on September 4 Green sold the car to Bibb, and about a week later Bibb sold - it to appellee. Appellant testified that he owned the car, that he acquired it in the manner stated above, and that he merely lent the car to Green without giving the latter any interest in it -or any authority to sell it. He testified that when he left Little Rock his agreement with Green was that the latter should immediately drive the car back to Texas. According to the testimony, the Texas license for the operation of the car was taken out in Green’s name on February 8, 1918, and was renewed in his name on February 8, 1919.

Tlie court refused to give any of the instructions requested by appellant, but submitted the issues to the jury on the following instruction:

“The owner of property which he had not transferred. title to may be replevined by him wherever found, unless by his own actions he has permitted the property to be disposed of to an innocent purchaser under such circumstances as would lead an ordinarily prudent person to believe that the property was rightfully sold. Therefore, if you find from the evidence in this case that Forrest was the owner of the automobile in question at the time of the institution of this suit, and was entitled to the immediate possession of same, plaintiff would be entitled to recover, unless you find from the evidence that by his own voluntary acts and conduct he permitted Green to so use and exercise ownership over it as to cause defendant to honestly believe that Green had a right to dispose of it, in which event your verdict will be for the defendant.”

The principal contention of counsel for appellant as ground for reversal is that the evidence is not sufficient to support the verdict. We are of the opinion, however, that, the burden being upon appellant as the plaintiff in the case to establish his right to recover the property, there was evidence legally sufficient to justify the submission of the question as to whether or not he was the owner. The only direct testimony as to appellant’s ownership of the car was that given by himself, and all of the other testimony adduced by him was merely in corroboration of his statements.

In view, of the circumstances in the case which have already narrated, we think it was a question for the jury to determine whether or not appellant was stating the truth when he testified that he acquired the title and possession from Green, and that in returning the car to Green he merely lent it to him.

But we have reached the conclusion that, if appellant was really the owner of the car, there was no testimony that he “permitted the property to be disposed of to an innocent purchaser under such circumstances as would lead an ordinarily prudent person to believe that the property was rightfully sold,” and that the court erred in submitting that question to the jury. It has long been ruled by this court that possession of a chattel is not conclusive evidence of ownership and of the right of disposal. In McIntosh v. Hill, 47 Ark 364, Chief Justice Cookrill, speaking for the court, said: “Possession of personal property is only prima facie evidence of title, and the doctrine of caveat emptor prevails, notwithstanding the possession. The prima facie title must yield to the actual title when it is asserted, and the buyer who trusts to appearances must suffer the loss if they prove delusive.”

All of the circumstances proved in the ease, except the one that appellant, after he claimed to have purchased the car, permitted the Texas license to be issued in the name of Green, merely tend to establish the fact that appellant voluntarily entrusted the possession of the car to Green; but, as we have already said, the law on this subject is that this does not amount to indicia of absolute ownership so as to protect an innocent purchaser. There is no evidence that either Bibb or appellee was apprised of the fact that the Texas license had been issued in the name of Green, or that they acted on the faith of apparent ownership of Green on account of the license issued to him. Unless they knew of this fact and purchased the car on the faith of this fact as an evidence of ownership, it does not afford a ground for submitting the question whether or not appellant held out Green as the owner of the car. In the present state of the proof there is therefore no issue to submit to a trial jury except the single one as to appellant’s asserted ownership of the car.

For the error in giving the instruction referred to the judgment is reversed, and the cause remanded for a new triál.


text:
    Western Randolph County Road Improvement District v. Clifford.
    Opinion delivered October 10, 1921.
    1. Contracts — alteration.—Where H agreed in writing to purchase the entire anticipated bond issue of a road improvement district created by a special act, and deposited a certified check “to guarantee compliance with the terms of the contract”, the check to be held in trust until the bonds were tendered in compliance with the contract, and subsequently the Legislature materially changed the act creating the district, and thereby substantially altered the contract itself, H’s estate was absolved from liability on the certified cheek.
    2. Highways — liability op district in contract. — A road improvement district was not bound by its contract to sell a contemplated bond issue entered into in advance of a contemplated assessment of benefits.
    Appeal from Pulaski Chancery Court; JolmE. Martineau, Chancellor;
    affirmed.
    Page, Campbell & Davis, for appellant.
    No time was specified in contract for delivery of bonds, hence a reasonable time, in view of all the circumstances, was intended. Page on Contracts (2nd. Ed.) Vol. 4, p. 2647; 33 Conn. 1; 101 Ala. 14; 13 N. Y. S. 922. A' tender of the bonds within eight months was within a reasonable time, as there were unusual circumstances connected with’ the case causing the delay.
    A formal tender of the bonds was unnecessary, since appellant was notified that they would not be accepted. 96 Ark. 156; 93 Ark. 497; 68 Ark. 505; 132 Ark. 84.
    The refusal to accept the bonds was not justified by changes in the law, as the contract was not thereby made more burdensome. 109 Ky. 408; 125 Md. 450; 128 N. Y. 8. 697; 24 Pa. Dist. 477; 42 N. Y. 126; 13 C. J. p. 646, §720; Page on Contracts (2nd. Ed.) Vol. 5, p. 4765.
    The reason for the refusal to accept the bonds was because of the break in the bond market, but changing events is no ground for preventing specific performance of a contract, 144 N, Y. 152.

      Not necessary for the district to probate claim against Hahn’s estate. Up.on the refusal of the representative to accept the bonds, the contingency happened which gave the district the right to cash the certified check. It then became an absolute claim, not against the estate of Hahn, But against the bank on which the check was drawn. 116 Ark. 1; 5 R. C. L. pp. 528-9, §§48-50.

      John F. Clifford, for appellee.
    The very nature of the contract makes time its essence, regardless of whether it is expressly so stated or not. 105 Ark. 626; 134 U. S. 68; 23 R. C.L. p. 1371; 1.1 L. R. A. 526. The words “as expeditiously as possible,” should receive a literal construction. 126 Ark. 46.
    After the passage of the amendatory legislation the board could no longer deliver the article contracted for, and they necessarily tendered comething not contemplated by the original contract, which the appellee was not bound to accept. 85 Ark. 596; 13 C. J. 642-3.
    The law does not place upon the representative of Hahn’s estate the duty to continually notify the district that it is expected to comply with its contract. 62 Ark. 316; 76 Ark. 570; 89 Ark. 204.
   McCulloch, C. J.

Appellant is a road improvement district in Randolph County created by a special act of the Legislature, approved February 27, 1919 (Road Acts 1919, p. 356), and on June 17, 1919, the district entered into a written contract with appellee’s intestate, E. J. Hahn, for the sale of bonds to be issued for the purpose of raising funds to be used in the construction of the improvement. .It was stipulated in the contract that the purchaser should accept the ‘ ‘ entire anticipated bond issue in the sum of $400,000, or so much as the district may require, the bonds to be serial and run from one to twenty-five or thirty years, as the district may elect, to be dated October 1, 1919, and to bear interest at the rate of six per cent, per annum, payable semiannually.” It was further agreed in the contract that the purchaser should, within ten days, deliver to the secretary of the board a certified check, in the sum of $10,000, “to guarantee compliance with the terms of the contract, ’ ’ the cheek not to be cashed, but to be held in trust until the bonds were tendered in compliance with the contract. Still another stipulation in the contract was •that the commissioners agreed “to use their best efforts to have the assessment of benefits confirmed and the bonds issued with the least possible delay.” Hahn delivered to the secretary of the board of commissioners a certified check for the sum of $10,000 on a bank in Little Rock, in compliance with the terms of the contract, and, shortly -thereafter, before anything else had been done under the contract, Hahn died. The subsequent dealings with the district were conducted by Hahn’s personal representative and those associated with him in the business. The bonds were never accepted by Hahn’s representative, and this is an action instituted by the administrator to restrain appellant district from collecting the check and to restrain the bank from paying the same. The chancellor granted the relief prayed for in the complaint, and the district has appealed.

There was a clause in the contract to the effect that the purchaser of the bonds should make advances to cover the preliminary expenses of the district, which advances were to be paid out of the first issue of bonds. Sums of money were furnished from time to time, aggregating about $15,000, and negotiable promissory notes were executed by the district to cover the same, but it does not appear in this record what became of those notes, and they are not involved in the present litigation— the sole subject-matter of the suit being the check deposited by Hahn as a guaranty for the performance of the contract.

The district covered a large area in Randolph County, said to constitute about four-fifths of the county, and the original statute creating the district provided for surfacing the specified roads with crushed rock and constructing necessary bridges along certain roads in the district. There were eleven roads mentioned, which were to be improved. The statute also contained a provision that the average cost of the road should not exceed $3,000 per mile, and it was estimated by the engineer during the progress of the preliminary work that the improvement could not be constructed within the limits thus specified as to cost. An amendatory statute was enacted at the extraordinary session of the Legislature in January, 1920, providing that the limitation of $3,000 per mile upon the cost of the improvement was to be exclusive of the cost of bridges and culverts. The amendatory statute' provided also for the improvement of three additional roads, making fourteen in all, instead of eleven, as originally provided for, and it also provided that the roads described should be graded and drained, and that such parts of them as the commissioners deemed advisable should be surfaced with gravel or crushed rock. The new act also provided for repairing and strengthening the bridge across Black River. The final estimates and plans of the engineers were filed with the commissioners April 26, 1920, and were approved by the commissioners on that day. The lists of assessments of benefits were filed with the county clerk on May 21, 1920, and, after publication of notice, the same were completed on June 8, 1920. In a letter dated March 25, 1920, the personal representative of Hahn’s estate indicated to the commissioners a refusal to accept the bonds, it appearing that at that time there had been very considerable depreciation in the market price of bonds of this character. Further correspondence took place between the parties, but those representing the Hahn estate persisted in the refusal to accept the bonds, formal tender of which was made after the approval of the final plans and specifications and the completion of the assessment of benefits.

It is contended by counsel for appellee that the Hahn estate was absolved from liability under the contract on two grounds: First, that the contract itself was altered by the amendatory act of February 4, 1920; and, second, that the district committed the first breach by 'delaying an unreasonable length of time before putting itself in an attitude to make delivery of the bonds. We are of the opinion that the first contention of counsel is correct, and it is therefore unnecessary to- discuss the second. Nor is it necessary to discuss the question how far the parties were bound by the executory features of the contract, as we are dealing now with the sole question of the right of Hahn’s estate to prevent the collection of the check which had been deposited with the district as a guaranty of the performance of the contract. It is to be remembered that the purchaser obligated himself to accept the entire anticipated bond issue of the district, estimated to be the sum of $400,000 “or as much more as the district may require.” The obligation was to accept the entire bond issue, whatever it might be under the law and the necessities of the district as then existing. The changes wrought by the new statute were very material and constituted a substantial alteration of the contract itself. It removed certain limitations as to the cost of the improvement and enlarged the scope of the improvement by providing for the improvement of three additional roads. It also changed the purpose from one to surface all the roads with crushed rock to the surfacing only of such roads as the commissioner’s might decide upon. This is not a case, as argued by counsel for appellants, where the law has merely imposed additional obstacles or burdens on the performance of a contract. Therefore, the cases cited in the brief of counsel are not applicable. It is a case where the contract itself has been changed by authority of law, and it is unimportant that this change was not a voluntary one on the. part of the district itself, but was compelled by the lawmakers. The district is a creature of the law, and any changes made by the lawmakers were tantamount to changes made by the district itself. The original statute, creating the district and the powers and duties conferred and imposed thereby, entered into the contract and became a part thereof, and a change in the law necessarily constituted a change in the contract, in so far as it altered the obligations of the parties. In this respect, the case presents merely the familiar question -of one party attempting to change the contract without the consent of the other. The difference is this, however, that in the case of individuals a change can not be made by one without the consent of the other who has a right to insist upon the performance of the contract as made; whereas, in this instance, the change is made by the sovereign power of the law which controls the action of the improvement district. Nor is there any question involved of the impairment of the obligation of the contract, for it was merely tentative, and'was not binding on the district in advance of a completed assessment of benefits demonstrating that the cost of the improvement would not exceed the benefits. Cherry v. Bowman, 106 Ark. 39; Thibault v. McHaney, 119 Ark. 188.

It follows that the decree of the chancery court was correct, and the same is affirmed.


author: . Wood, J.

text:
    Wade v. Texarkana Building & Loan Association.
    Opinion delivered October 10, 1921.
    1. Principal and agent — apparent authority. — Where vendors by their conduct held out a third party as authorized to collect payments from the vendee on his contract of purchase, they are es-topped to deny that he had such authority.
    2. Vendor and purchaser — waiver of forfeiture. — -Where vendors reserved the right after default to declare the contract of purchase at an end and to.treat the purchaser as a tenant, such right is waived where after default they permitted the purchaser to remain in possession, make payments on the purchase money and pay the taxes, and where they never notified the purchaser that they considered his contract of purchase as forfeited and would thereafter treat him as a tenant.

      3. Covenants — damages—evidence.—In a suit for breach of warranty in a deed, as a general rule, parol testimony is admissible to show the true consideration, for the purpose of increasing or diminishing the damages; but a grantor may estop himself by his conduct from disputing the specified consideration. -
    4 Covenants — liability of covenantor. — A covenant of warranty runs with the land; and where the purchaser or covenantee conveys, the covenant passes to his vendee or assignee, who may, in case of eviction or failure of title, recover from the original grantor the sum which the latter received from his grantee, with interest from the date of the conveyance to the last conveyance.
    5 Covenants — liability of covenantor. — Where vendors wrongfully deeded land to a third person after their purchaser had paid for the land and was entitled to a deed in fee, and thereby enabled such grantee to defraud his mortgage, they are liable to the mortgagee, upon failure of the latter’s title, to the extent of the consideration expressed in their deed, even though the true consideration was less than the express consideration.
    Appeal from Miller Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      Jones & Head, for appellants.
    The contract of purchase automatically became null and void when payments were sixty days behind, and all payments made were forfeited as rents. 48 Ark. 413; 54 Ark. 16; 87 Ark. 593; 76 Ark. 578; 139 Ark. 60.
    John W. Welch had no authority to collect payments. 49 Ark. 320 ; 96 Ark. 456. No one has the right to trust to mere presumption of authority, nor to the mere assumption of authority of an agent. 62 Ark. 33; 92 Ark. 315. He must ascertain his authority. 117 Ark. 173; 105 Ark. 111. An agent who is employed to solicit orders and make sales of goods not in his possession has no implied authority to require payment therefor. 100 Ark. 360; 101 Ark. 68. The existence of an agency cannot be established by proof of the acts and declarations of the agent. 122 Ark. 357; 131 Ark. 197; 126 Ark. 405. The authority of an agent cannot be proved by the mere fact that he exercised the authority. 53 Ark. 208; 105 Ark. 446.

      The covenant of general warranty runs with the land. 31 S. W. 200; 11 Cyc. 1170; 37 S. W. 455; 67 S. W. 405; 54 Ark. 195; 79 Am. Dec. 463; 11 L. R. A. 176. Parol evidence is admissible to show the consideration paid for the purpose of affecting damages. 54 Ark. 195; 71 Ark. 497.
    A purchaser of land in another’s possession takes with notice of equities existing against the title. 76 Ark. 25.

      Arnold db Arnold, for appellee.
    There was a waiver of forfeiture by continuing to accept 'payments. 87 Ark. 593; 139 Ark. 60; 142 Ark. 300.
    Measure of damages is not limited by the benefit of the breach to the party making it. 54 Ark. 195.
   . Wood, J.

On the 7th day of April, 1921, Frank Mosley and M. C. Wade entered into the following contract :

“I hereby make application for lots 12 and 13 in block 3 in Iron Mountain Addition to Texarkana, Arkansas, at the price of $425, payable $10 per month without interest, except after maturity, and all past due payments to draw 10 per cent, interest. It is agreed that I am to get general warranty deed when I have paid amount due in full. It is understood and agreed that when payments are sixty days behind, this contract is null and void, and all payments made shall be forfeited as rents. ’ ’

M. C. Wade and B. H. Kuhl were the owners of the lots described, and Wade, in entering into the above contract, was acting for himself and Kuhl. The Iron Mountain Addition was a negro settlement. John W. Welch, a negro, was employed by Wade and Kuhl to sell lots for them and to receive and turn over to them contracts of sale made by him with purchasers of lots, and to collect the first payment. The sales he made were subject to the approval of Wade and Kuhl. The contracts, when entered into, were to be signed 'by Wade and returned by Welch to the purchaser.

The above contract was consummated in this manner. Following the printed matter on the sheet were blanks to be filled in, showing the particular date and amount of each payment. All of the payments made under the above contract were made to Welch. Of the amounts paid Welch he turned over to Wade and Kuhl the sum of $317.50. Mosley testified that he made other payments to Welch which were not turned over by him to Wade and Kuhl, and these payments were indorsed on the contract, which brings the total amount of the payments made by Mosley as shown by the indorsements to $412.50. The last of the these indorsements was made July 15, 1919. Mosley made a further payment to Welch as shown by a receipt dated April 24, 1920, of $30, making a total of $442.50 paid as purchase money by Mosley to Welch on the lots under the contract above mentioned.

According to the testimony on behalf of Wade and Kuhl, all the payments under the contract matured in 1915. Mosley never complied with the terms of the contract, but the vendors continued to receive payments under it long after maturity of the contract. In November, 1919, there being still a considerable sum due, the vendors elected to declare the contract of sale void and to treat the payments as rents, and on December 1, 1919, they sold the lots mentioned to John W. Welch, executing to him a warranty deed for the same in which the consideration mentioned was $425. John W. Welch actually paid them the sum of $142.20. Kuhl testified concerning this transaction as follows: “We deeded the lots to John W. Welch, without figuring the interest on the deferred payments, for practically what was due on the contract at the time he purchased. We took his representation for it. He claimed that Mosley had left the country; was down in South Texas or somewhere, and his wife was here in bad circumstances; and we told Mm at the time that the contract was void because the time had elapsed, and we declared it now void, and we wanted him to go ahead and sell it to some one else. He begged because I think he said Mosley’s wife was his cousin, and asked if I would allow him to preserve the woman’s equity in the property by paying the balance and deeding it to him, and let him in turn deed it to her, and I said I would under the circumstances. * * *The sum of $142.20 paid by John W. Welch was the balance due at the time of the contract, without figuring the interest on deferred payments.” Mosley went into possession of the lots soon after the contract for the purchase thereof was entered into, and made improvements thereon, and has since continuously occupied the same with his family as a home.

On January 16, 1920, the Texarkana Building. & Loan Association took a mortgage from John W. Welch on certain properties, including the lots mentioned, to secure a note for $2,525, representing the amount of money which the association had loaned Welch.

This suit was instituted by the Texarkana Building & Loan Association and the trustee in the mortgage against John W. and Mattie Welch, his wife, to foreclose the mortgage. Mosley intervened, and set up that he was the owner of the lots in controversy under his contract of purchase above mentioned, which he alleged had been fully executed on his part by the payment of the purchase money. He alleged that he had no knowledge of the warranty deed executed by Wade and Kuhl to John W. Welch, and that the same was executed by the parties to it by collusion and with a fraudulent intent to defeat him of his rights of title to the property; that the grantees, Welch and wife thereafter executed a mortgage or deed of trust to the Building & Loan Association conveying the lots in controversy with a fraudulent intent also to deprive him of his title; that the association and its trustee, Sanderson, were cognizant of and charged with notice of Mosley’s equity in the lots. He prayed that his title to the property be declared and vested in him.

The Building & Loan Association answered the intervention of Mosley, setting up the deed from Wade and Kuhl to Welch and wife and the mortgage from Welch and wife to it, and asked that the same be foreclosed. It is 'also alleged that, if Wade and Kuhl breached their contract with Mosley by conveying the lots in controversy to Welch, it was entitled to recover of Wade and Kuhl the sum of $425, the amount of the consideration named in the warranty deed from them to Welch, because it had relied upon said deed in making the loan to Welch. It also set up that Mosley had forfeited his contract with Wade and Kuhl. It prayed that the intervener take nothing; that Wade and Kuhl be made parties, and that, in the event it be adjudged that Mosley was the owner of the lots, it have judgment against Wade and Kuhl for breach of warranty of their deed to Welch in the sum of $425, the consideration named therein. Wade and Kuhl were made parties, and they also answered the intervention of Mosley, denying all of its allegations, set up the contract mentioned, and claimed that Mosley had forfeited his right as purchaser thereunder, and that they had declared such forfeiture and had treated the contract as one of rental, and had declared the same null and void as to Mosley, and had conveyed the property by warranty deed to Welch. They also answered the cross-complaint of the Building & Loan Association and the trustee in the mortgage, denying its allegations, and setting up that they had executed a warranty deed to Welch for the actual consideration .of $142.50, and that the sum of $42.5 mentioned in the deed was not the true consideration. They prayed that the intervention of Mosley be-dismissed, and their deed to Welch be confirmed, and for all proper relief-.

The above are substantially the issues and the facts •upon which the court rendered a decree vesting the title to the lots mentioned in Mosley and divesting the title out of Welch and wife and out of Wade and Kuhl, and also entered a decree in favor of the Building & Loan Association against Wade and Kuhl for breach of warranty in their deed to Welch in the sum of $425 with interest at 6 per cent, from January 16, 1920, and also foreclosing the mortgage on the other property mentioned therein. It was shown that the Building & Loan Association derived from the mortgage foreclosure the sum of $1,824.35, leaving a balance due it under the decree of $618.40. From the decree of the court Wade and Kuhl and Mrs. Kuhl prayed and were granted an appeal.

Both the appellants, Wade and Kuhl, testified that Welch had authority to sell the lots in controversy and to collect the first payment, hut they also testified that he had no authority beyond this. But whether Welch had any actual authority to collect any hut the first payment, we need not stop to consider, for it is certain from the preponderance of the evidence in this case, which it is unnecessary to set out and discuss in detail, that Welch had apparent authority to represent the, appellants, not only in making the sale and collecting the first payment, but also in collecting subsequent payments. Mosley continued to make the subsequent payments to Welch which the appellants received from him and credited on Mosley’s contract of purchase. Indeed, Mosley testified that he paid all the money on the property to Welch, and the appellants do not controvert this, nor do they controvert the fact that they received such payments as were made by Welch and credited the same on Mosley’s contract óf purchase. By their conduct they clearly held Welch out to Mosley as having authority to receive the payments made by him on his contract of purchase, and they are now estopped from saying that Welch had no such authority.

By the express terms of the contract under review, it became null and void as a purchase contract if Mosley defaulted in the payments for sixty days, and the appellants had the right under the contract after such default to declare the contract of purchase at an end and to treat Mosley thereafter as their tenant and the payments made by him as rents. Sorrells v. Marble, 142 Ark. 300; Hanson v. Brown, 139 Ark. 60; Souter v. Witt, 87 Ark. 593. But the provision forfeiting’ the right of Mosley as purchaser upon default in making payments as prescribed was one made for the benefit of the appellants which they could waive. See above cases. The facts are that Mosley, immediately upon the execution of the contract, entered into possession of the property and continued in the possession of the same, making improvements, paying the taxes, and holding the same continuously as purchaser and owner and not as a tenant. The appellant testified that Mosley made default after the first payment, hut the uncontroverted testimony in the record shows that the appellants never at any time indicated to Mosley that they considered his contract of purchase forfeited and would thereafter treat him as a tenant. On the contrary, they continued, even to the time of making the warranty deed to Welch, to treat Mosley as the purchaser, and the testimony of Kuhl himself shows that their warranty deed was executed to Welch for the consideration of $142.50 upon the representation made by the latter that he should be allowed “to preserve the woman’s equity in the property by paying the balance and deeding it to him and let him in turn deed it to her.” The issue as to whether the appellants had waived the forfeiture was one depending upon the facts and circumstances developed by the testimony, and, as we view the evidence, the facts are undisputed and show clearly that the appellants had waived their right to treat Mosley as their tenant rather than as the purchaser. See Souter v. Witt and other cases supra.

As between the appellants and Mosley, the next question then is: had Mosley complied with the terms of the contract by making full payment of the purchase money? This is purely an issue of fact. The original contract of purchase shows indorsements of payments made thereon and the last payment of $10 was indorsed July 15, 1919, which brought the total payments to that date to $412.50 and left a balance due at that time on the principal of $12.50 not including interest. Mosley testified that on April 24, 1920, Welch brought the final report showing that the balance due on the purchase money for the lots was $70, and he presented, in connection with it a deed purporting to be signed by Wade and Kuhl to Mosley and wife; that he paid Welch at that time the sum of $30, leaving a balance due of $40; that he was going away and told Welch that he would pay the balance when he returned. When he came back, Welch had gone, and the $40 claimed by Welch as the balance was not paid. But it appears from the indorsements on the original contract of purchase that, exclusive of interest, after the last payment on July 15, 1919, there was only due the sum of $12.50. Therefore, the payments made by Mosley of $30 on April 24, 1920, overpaid the balance due of the purchase money in the sum of $17.50, not including interest. But we are convinced from the testimony of Kfnhl himself that the appellants did not intend to, and did not, charge Mosley any interest on the deferred payments of 'purchase money, for the reason that the testimony of Kuhl shows that the appellants received the sum of $142.50 as a balance of the consideration due by Mosley under the contract. Kuhl expressly stated that the sum of $142.50 was paid by Welch and received by the appellants as the balance due under that contract.

As before stated, the testimony clearly shows that Mosley had paid to Welch, treating him as the agent of the appellants, more than the amount called for as purchase money under the contract, not including interest. It occurs to us that the determination of the appellants to charge Mosley interest on the deferred payments of purchase money was an afterthought and one of the eventualities of this lawsuit. That suit was not in contemplation of the parties at the time Welch, acting for the appellants, received from Mosley payments which in "the aggregate exceeded the balance due by Mosley at the time the last payment of $30 was made. That Welch did not account to his principals for all the money which Mosley paid him is not the fault of Mosley. The appellants, as we have shown, held Welch out to Mosley as having authority to receive these payments, and Mosley was justified in so treating him and in making the payments to him. The court, therefore, was correct in holding that Mosley had paid the full consideration for the lots and in entering a decree investing and quieting title to same in him.

The court entered a decree in favor of the Building and Loan Association against the appellants in the sum of $425, the amount of the consideration named in the warranty deed from appellants to John W. Welch with interest thereon at the rate of six per cent, per annum from the date of the mortgage by Welch to the association. The decree in this respect was correct. When Welch executed the mortgage to .the association including the lots in controversy, he presented to the association a warranty deed from appellants to him showing as a consideration for the lots in controversy the sum of $425. On the mortgage debt to the association, Welch is still due the sum of $618.42 with interest and costs of the foreclosure suit. Under the circumstances disclosed by the undisputed testimony, the appellants, as between them and the association, are estopped from claiming that they only received a consideration of $142.50 for their warranty deed to Welch conveying the lots in controversy. Welch represented to Wade and Kuhl that the $142.50 was being paid by him for Mosley on the latter’s contract of purchase. The testimony of Kuhl showed that the appellants acted upon this representation and made a deed to Welch expecting him in turn to deed the lots to Mosley. In making up the consideration for the deed, the former payments that had been made by Mosley to Welch were embraced.. By deeding the lots directly to Welch, instead of to Mosley, they thus put it in the power of Welch to defraud the Building and Loan Association by presenting their warranty deed to him. Appellants knew at the time they executed the deed to Welch that Mosley’s contract of purchase was outstanding. The appellee did not know this. In a suit for breach of warranty in a deed, as a general rule, parol testimony is admissible to show the true consideration for the purpose of increasing or diminishing the damages. Barnett v. Hughey, 54 Ark. 195; Davis v. Jernigan, 71 Ark. 494-97. But the appellants can not avail themselves of that rule against the association, because their conduct in connection with their deed to Welch should estop them from disputing the consideration which they specified.

The covenant of warranty runs with the land, and when the purchaser or covenantee conveys, the covenant passes to his vendee or assignee, and such vendee or assignee, in case of eviction or failure of title, may recover from the original or remote grantor or warrantor the sum which such original grantor or warrantor received from his grantee, with interest thereon from the time of the conveyance to the last vendee or assignee, but he can not recover more than this sum. Barnett v. Hughey, supra; Hollingsworth v. Mexia, 37 S. W. (Tex.) 455; Lewis v. Ross, 67 Tex. 405. See, also, Phillips v. Reichart, 17 Ind. 120, 79 Am. Decisions, 463; Brooks v. Black, 11 L. R. A. (Miss.) 176; Rogers v. Golson, 31 S. W. (Tex.) 200; see, also, 11 Cyc. 1170.

Since appellants, under the circumstances, must be held to have received from Welch the sum of $425 for the purchase of the land, and are estopped from asserting otherwise, the court was correct in awarding a decree in favor of the appellee for that sum with interest thereon at six per cent, from the date of its mortgage from Welch. The decree being in all things correct, it is.affirmed.


author: Wood, J.

text:
    Pearce v. Harden.
    Opinion delivered October 10, 1921.
    Exemptions' — exceptions to schedule. — Where plaintiff filed exceptions to a schedule of exemptions claimed by defendant which in effect challenged the truth and accuracy of such schedule, it was error to sustain a demurrer to the exceptions.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Gul L. Pearce and Stephens Moore, for appellant.
    Plaintiff’s exceptions state grounds sufficient to call into question the correctness of defendant’s schedule, and he was entitled to a hearing and decision on the merits. C. & M. Dig. 5545, 5546. Laborers and mechanics are entitled, under the foregoing statutes, to the exemption of personal property and wages, not to exceed five hundred dollars, but claimants of such exemptions must bring themselves strictly within the two qualifications. As to what constitutes a laborer or a mechanic, see Webster’s Int. Diet.; Anderson’s Law Diet., 1913 Ed.; A. & E. Enc. of L., 2nd Ed., Yol. 12, p. 100; 113 G-a. 1085; 46 Ga. 466; 78 Fed. 498; 151 N. C. 320; 36 L. Ed. 226; 127 Ga. 444 ; 46 S. W. 918; 107 Fed. 585; 12 Phila. 402; 17 111. App. 196; 73 Ga. 343.
    The burden is on the claimant to show affirmatively his right to claim the property as exempt. A. & E. Enc. of L., 2nd. Ed. Yol. 12, p. 261; 52 Ark. 547; 65 Id. 40; 23 Id. 101; 36 Ark. 496; 18 Ind. 119; 28 Fla. 1; 87 Ind. 156; 77 Cal. 194; 85 111. 157; 11 R. C. L. 558; 31 Ann. Cases, 243 and notes.

      John E. Miller and G. E: Yinglmg, for appellee.
    The schedule was duly verified. The exceptions thereto raise no denial of any statement therein, no question of fact for decision. The exceptions were properly dismissed. C. & M. Dig. § 5549.
    The question as to whether or not the defendant is a laborer or a mechanic is not material to a correct determination of the issue, supra; Const. 1874, §2, Art. 9. Defendant is not claiming exemption under the provisions of § 5546, C. & M. Dig. Plaintiff hacl a right to execution as provided in the statute, § 5550, if he thought defendant had other property than that named in the schedule.
   Wood, J.

The appellant obtained a judgment in the justice court against the' appellee in the sum of $77. The appellee filed the following schedule:

“G. H. Harden, defendant in the above styled cause, states: That he is a resident of the 'State of Arkansas and the head of a family; that he is the owner of the following described property in -addition to the wearing apparel of himself and family, towit:
“ Ninety-two dollars and ten cents due him from Brundidge & Neelly; $60.30 due said defendant from J. F. Dyson; about $235 due defendant at this time as salary from the counties composing the First Judicial District, and $25 cash on hand. $412.40.
“That a writ of garnishment has been issued by A. Neelly, justice of the peace, against his property. That under the provisions of article 9 of the Constitution of the State of Arkansas, he claims as exempt from seizure under such writ of garnishment the following described personal property, being all of his aforesaid personal property:
“$92.10 due him from Brundidge & Neelly; $60.30 due said defendant from J. F. Dyson; about $235 due defendant at this time as salary from the counties composing the First Judicial District, and $25 cash on hand.
‘£ That this writ of garnishment was obtained in a suit for debt by contract.
“This, the 2d day of June, 1919.
“G. H. Harden.
“I, G. H. Harden, solemnly swear that the above and foregoing schedule embraces all of my property of every kind except my wearing apparel and that of my family, and that the personal property claimed as exempt does not exceed in value the sum of five hundred dollars, and’ that I am the head of a family, and a resident of the State oh Arkansas, and the claim of plaintiff is for debt by contract.
"G-. H. Harden.”

The appellant filed the following exceptions to the schedule:

“First. That under the law the defendant, who is the duly appointed, qualified and acting court reporter of the First Judicial Circuit of Arkansas, is neither a laborer nor mechanic and therefore is not entitled to claim exemption of sixty days ’ wages.
“Second. Defendant does not list any household furniture, furnishings and supplies which he owns, if he is at the head of a household.
“Third. The defendant does not show in said schedule of exemptions a list of all moneys received by him during the sixty days for which he is claiming exemption of his wages, which list should show his salary for said time.
“Fourth. Defendant does not state for what given period of time he is claiming exemption of wages.
“Fifth. Defendant does not state in what way he is the head of a household, which would entitle him to claim exemptions.
"Wherefore, plaintiff prays that his exceptions and objections to said schedule of exemptions be heard by the. court, and, finally, that said schedule of exemptions be rejected and he be permitted to proceed according to law in the collection of judgment due him.
"Cul L. Pearce, Plaintiff.”

The justice of the peace overruled the exceptions and issued a supersedeas. The appellant appealed to the circuit court. In the circuit court the appellee filed a motion to dismiss the exceptions, which the court treated as a general demurrer, sustained the same, and, appellant electing to stand on his exceptions, the court entered a judgment dismissing the appeal, from which appellant prosecutes this appeal.

While.the exceptions of the appellant filed to the schedule of the appellee are not -artistically framed, the effect of these exceptions, when taken together, was to challenge the truth and accuracy of appellee’s schedule and to put in issue the declarations contained in said schedule. True, the exceptions were not as specific as they should have been, but no motion was made to make them more specific, and the court on demurrer erred in treating them as wholly defective and insufficient to raise an issue as to the truth of the allegations ’contained in appellee’s schedule. The effect of sustaining the demurrer was to deprive the appellant under the allegations contained in his exceptions from raising the issue as to the correctness of the appellee’s schedule, whereas the exceptions should have been treated as a denial of the allegations contained in the appellee’s schedule. It can be very plausibly contended that there is no denial in specific terms of the allegations contained in the appellee’s schedule, but, as before stated, the effect of these various exceptions is to deny that the appellee was entitled to the exemption claimed by him, and this was sufficient at least on demurrer to raise the issue and place the burden upon the appellee to prove by a preponderance of the evidence that he was entitled to have the property specified declared exempt from execution to satisfy appellant’s judgment. Blythe v. Jett, 52 Ark. 547; Porch v. Arkadelphia Milling Co., 65 Ark. 40-45.

The exceptions of the appellant, in other words, should be treated as something more than- a mere demurrer or general objection to the form of appellee’s schedule. Appellant’s prayer to his exceptions show that appellant intended something more than a general objection to the form.

Exceptions No.- 2 and No. 5, while not specifically denying, should nevertheless on- demurrer be treated as a denial of, the appellee’s allegation that he was the head of a family, and these, with the other allegations, should be treated as denying that the appellee was entitled to hold specific articles which he set up in his schedule exempt from appellant’s judgment. The appellant prayed “that his exceptions and objections to said schedule of exemptions be heard by the court.” The trial court, instead of dismissing the appellant’s exceptions-under the above prayer, should have treated them as raising an issue on the facts alleged in appellee’s schedule. The judgment is, therefore, reversed, and the cause remanded with directions to overrule appellee’s demurrer to appellant’s exceptions.


author: Hart, J.

text:
    Miles v. American Railway Express Company.
    Opinion delivered October 10, 1921.
    1. Damages — breach of contract. — Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach should be such as may fairly and reasonably be considered either as arising naturally from the breach of the contract or as having been in contemplation of both parties at the time they made the contract, as the probable result of a breach of it.
    2. Damages — contemplated damages. — In determining what damages were contemplated by the parties to a contract, it is proper to consider the nature and purpose of the contract and the attending circumstances known to the parties at the time the contract was executed, and those damages should be awarded which might reasonably have been expected to follow from a breach .of the contract.
    3. Carriers — breach of contract to make prompt delivery — contemplated damages. — Where the head of a dog supposed to be afflicted with rabies was delivered to an express company for shipment to a medical laboratory to determine whether the dog was rabid, and its delivery was delayed until the head was so decomposed that it was impossible to determine that fact, the express company was liable to the shipper, whose child had been, bitten, for expenses incurred in giving the child the Pasteur treatment, as the express company, having notice of the purpose of the shipment, must be held to have anticipated that, if the package was not delivered promptly, the Pasteur treatment would be administered to the child.

      4. Parent and child — recovery by parent for child’s suffering. A parent suing a carrier for negligent delay in delivering to a laboratory the head of a dog by whom child had been bitten, thereby rendering examination for rabies impossible, could not recover for the child’s physical suffering in taking the Pasteur treatment.
    5. Damages — mental suffering. — The parent of a child bitten by a dog supposed to be mad, suing a carrier for failure to deliver the head of the dog shipped for microscopical examination, could not recover damages for mental suffering, since damages for mental suffering cannot be recovered in absence of physical suffering; nor could such parent recover punitive damages, in the absence of express malice.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Gulbert L. Pearce, for appellant.
    1. As to the disease of hydrophobia or rabies and its effects on the human body, and for a proper understanding of the reasons why the local physician advised the father to send the dog’s head by express to Little Rock for microscopical examination, see Ander’s Practice of Medicine. 13 Ed., p. 292; DaCosta’s Modern Surgery, 8 Ed., 351; DaCosta’s Handbook of Mod. Treat, vol. 1, p. 144; Encyc. Britannica, 11 Ed. vol. 14, p. 167; Roseneau on Preventive Med. & Hyg. (1918) pp. 45-53.
    We find no parallel case to this in the reports, but, as supporting the theory of the express company’s liability under the facts alleged in the complaint, see 138 Ky. 704; 18 Tex. Civ. App. 363'; 9 Exch. 341; 4 R. C. L. 737; Id. 745; Id. 936, 938; Hutchinson on Carriers, §1367; 89 Tex. 428; 94 Wis. 44; 92 S. W. 40; 91 Id. 1121; 88 Id. 870. On the question of special damages: 74 Ark. 358; 90 Id. 452; 76 Id. 220; 82 Pac. 502; 115 Ark. 142; 40 Cal. 657; 90 S. C. 366, 73 S. E. 772; 1 Q. B. Div. 274.
    The patron of an express company is warranted in expecting quicker and safer service from such company than he could expect from an ordinary carrier. 104 N. C. 278; 6L. R. A. 271.
    2. The defendant having been informed in advance of the special purposes of the shipment, and its attention daily called by the father to the unnecessary delay, its failure to deliver was gross and willful negligence for which he is entitled to recover punitive damages for his own distress of mind and for the pain and suffering of the child. 5 Am. & Eng. Enc. of L., 2nd. Ed., 392; 4 R. C. L. 934; Hale on Damages, 102.

      Mehaffy, Donham é Mehaffy, for appellee.
    1. The facts stated in the complaint do not show that either of the plaintiffs suffered any damages or had to pay out any money because of negligence on the part of the express company. 1 Shearman & Redfield on Negligence, p. 11; Id. pp. 42, 48; 20 R. C. L., 9.
    2. The fathers in this case could not recover for the pain and suffering of the children, nor for their own mental distress and anxiety. 27 S. W. 830; 9 Id. 598; 64 N. E. 595.
   Hart, J.

This is an appeal from a judgment sustaining a demurrer to and dismissing the complaint for damages for an alleged breach of contract.

On January 31, 1921, E. W. Miles filed an amended complaint against the American Railway Express Company which is as follows: “The plaintiff alleges:

“That defendant is and was at all times hereinafter mentioned a common carrier engaged in the carriage of express matter for hire, over the line of the Missouri Pacific Railroad Company, between the town of Bald Knob and the city of Little Rock, Arkansas.
“That on the 15th day of June, 1920, plaintiff, through his agent, the Huffaker Mercantile Company, delivered to defendant, and the defendant accepted at its office in the town of Bald Knob, one metal bucket properly packed, iced and labeled, containing the head of a dog to be transported to the city of Little Rock, a distance of fifty-seven miles, and there delivered to the hygienic laboratory, and that plaintiff, throug’h his said agent, paid the sum required of him as charges for said services, and at the time informed defendant’s agent of the contents of said shipment and the specific purpose for which it was intended to be used.
‘ ‘ That, on the morning of said day,the dog from which the head was afterward severed, while showing symptoms of hydrophobia — which symptoms also show in other and less dangerous diseases of dogs — severely bit and .lacerated Florence Miles, aged six, a daughter of the plaintiff.
‘ ‘ That plaintiff,for the purpose of protecting the said child from the probable danger of contracting hydrophobia from the bite of said dog, and acting upon the advice of a local physician, killed said dog, severed the head therefrom and caused the same to be shipped as aforesaid for microscopical examination to determine whether said dog was affected with hydrophobia or rabies, a dangerous and dreaded disease which may be communicated to human beings, and which in most instances causes great suffering and certain death.
“That defendant wilfully, negligently and wrongfully failed and refused to deliver said bucket to the consignee until the evening of the fourth day after the day of shipment, at which time said dog head was so decomposed that a microscopical examination to determine the presence or establish the absence of hydrophobia germs could not be successfully made, and plaintiff was thereby deprived of the only method known and recognized by medical science for determining whether the said dog was infected with germs of hydrophobia.
“That plaintiff repeatedly communicated with the said hygienic laboratory by telephone, seeking information concerning the results of the intended examination, but each time was informed that no such shipment had arrived; and each time thereafter plaintiff went to def end-ant’s office at Bald Knob and urged its agent to investigate the delay, but was given no information or satisfaction by tbn defendant’s said agent, he appearing very indifferent about the matter.
“That, on the account of the failure as aforesaid to determine the presence' or to establish the absence of hydrophobia germs in. said dog by means of a ¡microscopical examination, which failure was caused by the negligence of the defendant, plaintiff was then advised by his physician that the only reasonable course left for the protection of the said child from the probable dangers of hydrophobia would be to cause it to undergo a preventive treatment, which treatment is commonly and generally known as the Pasteur treatment for prevention of hydrophobia or rabies.
‘£ That plaintiff, acting upon said advice, took said child to the department of pathology of the University of Arkansas School of Medicine, located in the city of Little Rock, and caused it to undergo the said treatment, which treatment required a twenty-one days’ course and caused the said child much pain and suffering.
“That plaintiff expended the sum of $127.50 for medical services and medicine, attendant for said child, hospital fees, board, railroad fare and other necessary items, including express charges on said shipment and telephone messages in trying to secure delivery thereof, all of which he was compelled to expend on account of defendant’s wilful negligence and wrongful failure and refusal to deliver said package within a reasonable time, and plaintiff further suffered much annoyance and inconvenience by reason of said default and suffered great anxiety and distress of mind on account of the pain and suffering of his said child by reason of said anti-hydrophobia treatment.
“That plaintiff is entitled to the sum of $127.50 for money actually expended as aforesaid, and the sum of $500 for special and exemplary damages on account of defendant’s negligence as aforesaid.
“ Wherefore plaintiff prays judgment for the sum of $127.50 on his first count, and for the sum of $500 on his second count, and for costs and for all other and proper relief. ’ ’

On the same day W. N. White filed an amended complaint against the American Bailway Express Company which is the same as the above complaint, except as to the name of the plaintiff and the name and age of the plaintiff’s child.

The defendant filed a demurrer to the complaint in each case. The cases were consolidated by order of the court, and a demurrer to each complaint was by the court sustained.

The plaintiffs , elected to stand on their amended complaints and refused to plead further. Whereupon the court dismissed the plaintiffs’ cause of action and gave judgment against them for costs..

Counsel have not cited us to a case similar to the one at bar, and, after a somewhat diligent search, we have not been able to find a case directly in point. Counsel in their respective briefs have ably discussed the general principles of law applicable to the case. It is not necessary to go beyond our own decisions to find a statement of the general principles governing suits for damages for breach of contract. This court has always intended to follow the old English case of Hadley v. Baxendale, 9 Exch. 354, on this subject.

In Western Union Tel. Co. v. Short, 53 Ark. 434, the court said that the rule is correctly laid down in Hadley v. Baxendale, as follows:' “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself; or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract, as the probable result of a breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants and thus known to both parties, the damages resulting from the breach of such contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most could only be supposed to have had in his contemplation the amount of injury which would arise g-enerally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.”'

To the same effect see Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275. In determining the reasonable contemplation of the parties, it is proper to consider the nature and purpose of the contract and the attending circumstances known to the parties at the time the contract was executed, and those damages should be awarded which might reasonably have been expected to follow from a breach of the contract.

In the case at bar the express company might have reasonably anticipated that plaintiffs would be put to the expense of the Pasteur treatment, if the package containing the head of the dog, which bit the plaintiffs ’ children, should not be promptly carried and delivered at the point of destination, and this, too, regardless of the fact that the dog might not have been rabid. It is commonly known that the Pasteur treatment diminishes the dangers by hydrophobia from the bites of rabid dogs. Under the allegations of the complaint, the express company knew, when it received the dog’s head for shipment, that the object of the analysis was to-ascertain whether or not the dog that bit the children was suffering from rabies. The .express company must have reasonably anticipated that the Pasteur treatment would not only be administered to the children if an analysis of the dog’s head showed that the dog was rabid, but that it would also be given as a precautionary treatment if the package was not delivered promptly so that an analysis of the dog’s head might be made. So it may be justly assumed that such damages were within the contemplation and purposes of the parties in entering into the contract, and that the breach of contract on the part of the express company was the proximate cause of the damages suffered by the plaintiffs in giving the Pasteur treatment to their children.

Counsel for the defendant urged that, if the dog suffered with rabies, the Pasteur treatment would have been given in any event, and that the complaint is faulty because it does not allege that an analysis would have shown that the dog was not a rabid animal. The argument is faulty in this respect. Counsel do not take into consideration the fact that the plaintiffs made known to the defendant the object and purposes of the analysis, and the defendant might have anticipated that it would be necessary to give the Pasteur treatment, regardless of the fact of whether the dog was a rabid animal or not, if there was a violation of the contract by the defendant in respect to the prompt carriage and delivery of the package containing the dog’s head. The parties knew the purpose for which the package containing the dog’s head was sent, and might have reasonably anticipated that a 'breach of the contract would cause the plaintiffs of necessity to go to the expense of the Pasteur treatment, and that the breach of the contract was the direct cause of the damage suffered by the plaintiffs.

This is a suit by parents for damages, and they can not recover for the physical suffering endured by their children. Neither can they recover damages for mental suffering. The parents did not receive any physical injury, and it is well settled in this State that mental suffering alone, unaccompanied by physical injury, can not be made the subject of an action for damages against the carriers. St. L., I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42; and St. L., I. M. & S. Ry. Co. v. Buckner, 89 Ark. 58.

There was no element of wilfulness or statement of facts from which malice might be inferred. Hence there is nothing to justify the infliction of punitive damages against the defendant. St. L. S. W. Ry. Co. v. Evans, 104 Ark. 89, and St. L., I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261.

It follows that the court erred in sustaining the demurrer to the complaint, and for that error, the judgment- will be reversed, and the cause remanded for a new trial.


text:
    Strode v. Holland.
    Opinion delivered October 10, 1921
    1. Replevin — allegation of ownership. — Where the court sustained a demurrer to a complaint in replevin because it was not shown by the allegations whether the plaintiff claimed under a general or a special ownership, it was proper to permit the plaintiff to amend his complaint to show that he claimed under a special ownership.
    2. Trial — motion to transfer to equity — waiver.—Where defendant in an action at law filed an answer setting up an equitable defense and moved to transfer the cause to equity, he waived his right to such transfér by withdrawing his answer from the file.
    3. Appeal and error — absence of bill of exceptions — errors considered. — In the absence of a bill of exceptions the Supreme Court can review the judgment only for error manifest upon its face and can consider only the facts recited in such judgment.
    4. Mortgages — remedies of holder of chattel mortgage. — The holder of a chattel mortgage, upon the mortgagor’s default, may sue at law to recover the mortgaged chattel or for its conversion, or he may sue in equity for the foreclosure of the lien which he has by virtue of the mortgage.
    5. Trial — transfer to equity. — A defendant in replevin who pleads a set-off is not, on that account, entitled to have' the cause transferred to equity, as the set-off is a good defense at law (Crawford & Moses’ Dig. § 8654a).
    Appeal from Arkansas Circuit Court, Southern District ; W. B. Sorrels, Judge;
    affirmed.
    STATEMENT oe eaots.
    On the 24th day of August 1920, O. J. Holland brought suit in replevin against H. A. Strode to recover possession of one 15 DC-180 Western Electric. Power and Light Outfit.

      Plaintiff also filed an affidavit for replevin, and in it alleged that he had a special ownership in said property by virtue of a lien in writing to secure the balance due on the purchase price.
    The defendant filed a demurrer to the complaint, which was sustained by the court. The defendant also filed an answer and motion to transfer the case to equity. Subsequently he filed an amendment to his answer in which he pleaded a set-off of $75 on the amount due by him to the plaintiff on the property sued for.
    The court refused to transfer the case to equity, and by leave of the court the defendant Withdrew from the files his answer and amended answer.
    The plaintiff filed an amended complaint in which he stated that by virtue of a lien in writing he had a special ownership in, and was entitled to the immediate possession of, one 15 DC-180 Western Electric Power and Light Outfit of the value of $300. He stated further that the defendant had possession of said property and unlawfully detained the same.
    The plaintiff prayed judgment for said sum of $300, and‘that his lien on said property be enforced and the property sold to pay his debt.
    The defendant filed a motion to strike the amended complaint from the files on the ground that it stated a new cause of action or was inconsistent with the original cause of action and the relief sought in the original complaint. The court overruled this motion, and the defendant excepted to the ruling of the court and refused to plead further.
    The judgment recites that the cause was submitted to the court sitting as a jury, “upon the amended complaint, affidavit, defendant’s demurrer to the original complaint and defendant’s motion to strike- and the obligation in writing of the defendant and the evidence of the plaintiff, O. J. Holland, and the court, being sufficiently advised as to the facts and as to the law, -doth find that this is a suit in replevin for the possession of the following described property, to wit, one 15 DC-180 Western Electric Power and Light Outfit or the balance due on the lien or mortgage.”
    Judgment was rendered in favor of the plaintiff against the defendant for the property, or the balance due under the mortgage, which is found to be $300.
    From the judgment rendered the defendant has duly prosecuted an appeal to this court.

      John'P. Streepey, for appellant.
    1. The amount claimed by the plaintiff was much less than the amount the defendant had paid. The case should have been transferred to equity to prevent a forfeiture of the amount paid on the purchase price, and where, on account of plaintiff’s insolvency, defendant might obtain the benefit of the damage he claimed by way of set-off. 56 Ark. 450; 134 Ark. 404.
    2. The amended complaint stated a new cause of action in that it prayed for a money judgment, whereas the original complaint was in replevin seeking the recovery of personal property. The court erred in not striking the amended complaint from the files. 102 Ark. 20.

      Ii. L. Sternberg and Lee £ Moore, for appellee.
    The action was in replevin for mortgaged chattel. The answer pleads a set-off of $75 for failure to comply with the contract. The remedy was complete at law, and the motion to transfer was properly overruled. C. & M. Dig., § 8654a. The holder of a chattel mortgage may sue in replevin if he so elects. 97 Ark. 432.
    If the amended complaint set up new facts, the defendant could have moved 'for further time. 125 Ark. 553. But there is no essential difference between the original complaint and the amended complaint, and they both conclude with a prayer for general relief, under Which it was proper to grant any relief the facts warranted. 15. Ark. 555; 47 Ark. 31.

      John P. Streepey, for appellant, in reply.

      Under the original, complaint, the only proper judgment would have been for the return of the property. C. & M. Dig. § 8654a; 37 Ark.. 544; 54 Ark. 121. Under the amended complaint the only judgment to be rendered was for money. It stated a different cause of action.
   Hart, J.

(after stating the facts). The original complaint stated that the plaintiff was the owner of the property, and his affidavit for replevin stated that he had a special ownership by virtue of a lien in writing. The defendant interposed a demurrer to the complaint which was sustained by the court. The plaintiff then filed an amended complaint in which he stated that he had a special ownership in the property by virtue of a lien in writing.

It is contended by counsel for the defendant that the amended complaint stated a new cause of action, or at least that the amended complaint was inconsistent with the original complaint.

We can not ag’ree with counsel in this contention. In Climer v. Aylor, 123 Ark. 510, the court held that a complaint in replevin was defective because it was not shown by the allegations whether the plaintiff claimed under a general or special ownership. The court said that the complaint was not wholly defective, and that the defect could have been reached by a special demurrer, in which case tne plaintiff could have amended his complaint to show whether his ownership was general or special, and, if special, to set forth the facts upon which his claim of special ownership was based.

In the instant case the plaintiff alleged a special ownership in the property by virtue of a lien in writing. If defendant wished the plaintiff to set forth, the facts more in detail upon which his claim of special ownership was based, he should have filed a motion to make the complaint more definite, instead of a motion to strike the amended complaint from the files. Wm. R. Moore Dry Goods Co. v. Ford, 146 Ark. 227.

The question of whether the defendant’s motion to transfer the case to equity should have been granted is pot raised by the appeal for the reason that the defendant obtained leave to withdraw his answer from the files of the court and thereby eliminated the question from the case. The case was heard before the court sitting as a jury. There was no bill of exceptions filed, and the judgment recites that the case was heard upon the pleading’s, the obligation in writing of the defendant, and the evidence of the plaintiff.

The judgment recites that this is a suit in replevin for certain specifically described personal property or the balance due under a' lien or mortgage. The judgment further recites that the plaintiff have judgment for the property which is specifically described, or the balance due under the mortgage.

There being no bill of exceptions, we can only review the judgment for errors manifest upon the face of it, and in doing so can only consider the recital of facts contained in the judgment upon which it is based. Baucum v. Waters, 125 Ark. 305; Sizer v. Midland Valley R. Co., 141 Ark. 369; and Carroll County v. Poynor, 142 Ark. 546.

It will be seen that the judgment recites that the replevin suit was under a mortgage of the property held by the plaintiff from the defendant. In the absence of a bill of exceptions, and in view of the recitation in the judgment that the case was heard upon the written obligation of the defendant and the evidence of the plaintiff, the presumption is that the evidence adduced at the trial sustained the finding of the circuit court and warranted the judgment rendered.

The holder of a chattel mortgage may, upon the mortgagor’s default, sue at law to recover the mortgaged chattel, or for its conversion, or he may sue in equity for the foreclosure of the lien which he has by virtue of the mortgage. Thornton v. Findley, 97 Ark. 432.

To reverse the judgment counsel for the defendant rely upon the case of the Southern Cotton Oil Co. v. East, 134 Ark. 404. In that case the defendant set up an answer which was exclusively cognizable in chancery, and the court held that he was entitled to have the’ issue determined by the chancery court, and for that reason the trial court erred in not' transferring the case to equity. As we have already seen, the defendant, by leave of the court, withdrew his answer from the files, and this action eliminated any alleged error in refusing to transfer to equity.

Moreover, the defense interposed by the defendant' in his answer was not exclusively cognizable in equity. He could have set-off at law as well as in equity that the plaintiff was only due a certain amount under the mortgage. Our statute authorizes proof of payment of. the mortgage indebtedness or a set-off for the purpose of determining whether or not the debt has been 'discharged in full, or, in ease of partial discharge, the amount of the balance due. Jones v. Blythe, 138 Ark. 81.

It follows that the judgment must be affirmed.