text:
    Miller v. Abraham.
    Opinion delivered June 18, 1923.
    1. Master and servant — wrongful discharge — mitigation of damages. — An employee who is wrongfully discharged before expiration of the period of employment is not required, in order to minimize his damages, to accept an offer from his employer to work for him at a reduced salary, his only duty being to use reasonable care to seek other employment.
    2. Master and servant — wrongful discharge — burden of proof. — Where an employee is wrongfully discharged before the end of his term of employment, the burden is on the employer to prove that the employee could have reduced his damages by obtaining other employment.
    3. Master and servant — wrongful discharge. — Not only an absolute refusal by the master to perform a contract of employment, but also any clear manifestation by words or acts of an intention not to carry out the contract, will authorize the other party to treat this as a cancellation of the contract.

      Appeal from Mississippi Circuit Court, Oisceola District; W. W. Bandy} Judge;
    affirmed.
    STATEMENT OE EAOTS.
    Tbis was an action by A. Abraiiam against Ike Miller to recover damages for a breach of a contract by which the • defendant hired the plaintiff to work for him as salesman in his store for the period of one year.
    According to the testimony of A. Abraham, he began to work for Ike Miller on July 1, 1920, and worked for him until the first day of January, 1921, in his store at Osceola, Ark. When he was employed, Abraham lived at Helena, and Miller agreed to employ him for one year at a salary of $275 per month, -and Miller also agreed to rent him a dwelling house for $30 per month. On November 25, 1920, Miller told Abraham that his business was dull, and that he did not think that he ought to pay him more than $137.50 per month. He agreed to pay him that salary if he would stay on. Later on during the year the subject was again talked of between the parties, -and Miller told Abraham not to come to work unless he would work for $137.50 per month. Abraham declined to work for Miller at that price, and a few days later gave up his keys to the store to another employee of Miller. Miller then demanded possession of his dwelling house, and notified Abraham to vacate it, which he did. Abraham made an effort to obtain work of a suitable kind, but was unable to do so, except that he made $60 between the date of his discharge and the end of his term of employment.
    According to the evidence adduced by the defendant, he did not actually discharge the plaintiff, but only suggested to him that, on account of the depression in business, he ought to be willing to have his salary cut in half. The defendant himself denied in positive terms that he discharged the plaintiff, and said that he only suggested to him that he ought to work for $137.50, as that amount was all that he could earn on account of the business depression. The defendant also stated that the plaintiff neglected Ms work and was not as good a sales-■-inan as lie bad been when be bad employed bim at a former period of time. He asked plaintiff to stay and work for him at $137.50 a month, and this the plaintiff declined to do.
    The jury returned a verdict for the plaintiff in the sum of $1,590, and from the judgment rendered the defendant duly prosecuted an appeal to tMs court.

      A. F. Barham, for appellant.
    If appellee was wrongfully discharged by appellant, he was bound to use reasonable care in entering other employment of the same kind, and thus reduced the damages. It was his duty to continue work for appellant at the $137.50 offered bim and only sue for the difference 'between that amount and the contract price. The court erred in not so declaring the law as requested in appellant’s instruction No. 1. 18 E. C. L. 530, note 40; 1 Mo. App. 172, and cases cited in note 6, L. E. A. (N. S.) 105. He was only entitled to recover, if at all, an amount equal to the stipulated wages, less what he may, or with reasonable diligence could, have earned in other employment. 58 Ark. 617. Must have kept himself in readiness to perform the contract on his part. 39 Ark. 287; 91 Ark. 212. The rule of constructive service is correctly stated in 18 E. C. L. 525, note 37; see also 8 A L. E. 338; 18 E. C. L. 529, note 39. The court, erred in giving instruction 3. 26 Cyc. 290 and 990, note; 58 Ark. 506. The judgment should be reversed, and appellant should in any event have credit for the amount appellee would have earned at the rate offered by appellant.

      S. L. Gladish, for appellee.
    The judgment should be affirmed for appellant’s failure to comply with Eule 9. He has not made an abstract as required. 74 Ark. 320; 136 Ark. 188. Appellee was not reauirerl to accent service of anpellaut at one-half the price stipulated in his contract. Had he done so, be could not have recovered damages for breach of his original contract of employment. Instruction No. 1 requested by appellant was properly refused. His citation 18 R. C. L. 530, note 40, shows it is not the law. No error in giving- Noi 3, which is a correct statement of the law. 78 Ark. 336. See also 7 Wash. 437; 103 Mich. 516; 152 Ill.'59; 137 N. Y. 471. Appellee, being wrongfully discharged, was entitled to recover as damages the wages stipulated in the contract, less whatever amount he was able to earn during the time in similar employment that he could procure. 58 Ark.- 617. The burden of proof is on the employer to show that the servant might have obtained similar employment. 70 Ark. 509; 91 Ark. 212; 9 Ark. 394. It is apparent that this appeal is for delay merely, and the penalty should be assessed. 96 S. W. 1062.
   Hart, J.,

(after stating- the facts). The main objection to the recovery had is that the defendant offered to receive the plaintiff back into his employment at $137.50 a month, and that the plaintiff ought to have accepted the offer and in this manner have kept down the payments. We cannot agree with the defendant in this contention. According to the evidence of the plaintiff, the defendant only agreed to keep him in his employment if he would work for him at $137.50 in lieu of the $275 per month provided in the contract of employment.

According to the testimony of the plaintiff, this was a plain proposition -to give up the old contract and to accept in lieu thereof a new one, less beneficial to the plaintiff. This is to say, the new offer of the defendant to the plaintiff was to continue in the same employment at a less price. If the plaintiff had agreed to this. 1m would have virtually surrendered' the old contract and have made a new one. If he had agreed to a change ox-modification of the old contract, he would have been bound by its terms and could not have recovered for -a breach of the original contract of employment. After the defendant had virtually declined to give the plaintiff employment under the original contract, there was no further duty on the plaintiff’s part to be in readiness to perform. If the testimony of the plaintiff is true, Iris only further duty was to use reasonable care in entering into other employment of the same kind, and thus reduce the damages. The case was submitted to the jury on this theory. VanWinkle v. Satterfield, 58 Ark. 617.

This case also decides that the burden of proof was on the defendant to show that the plaintiff might have obtained similar employment. The reason is that the failure of the servant to obtain other employment does not affect his right of action, but only goes in reduction of damages.

It is also contended that the court erred in giving instruction No. 3, which is as follows: “If you find from the proof that the conduct of the defendant evinced the fact that he would no longer be bound by the contract, or if there was a clear manifestation by words or acts of his intention not to perform his part of the contract according to its terms, such action or conditions were sufficient to authorize the plaintiff to treat the contract as repudiated.”

There was no error in giving this instruction. According to the testimony of the plaintiff, the defendant told him that he would not keep him during the remainder of his term of service unless he would agree to work for a reduced salary. The jury might have found, from this declaration of the defendant, an intention to be no longer bound by the contract, and this court has held that not only an absolute refusal in words to perform a contract, but also any clear manifestation, by words or acts, of an intention not to carry out the contract, will authorize the other party'to treat this as a cancellation of the contract and to bring action for the breach thereof. Spencer Medicine Co. v. Hall, 78 Ark. 336.

The instructions asked for by the defendant and refused by the court were erroneous aucl need not be set out in full. It is only necessary to say that they carry with them an obligation on the part of the plaintiff to have remained with the defendant and worked for him at $137.50 per month if he could not get employment in a similar line of business elsewhere. This qualification was not correct, for the reason stated above. The plaintiff was not obliged to remain in Osceola or to tender his services to the defendant after they had been once definitely rejected. According to the testimony of the plaintiff, he made reasonable efforts to procure similar employment elsewhere, but failed.

The testimony of the parties to the contract was in direct and irreconcilable conflict. The court submitted their respective theories to the jury, under proper instruction, and tlie verdict in favor of the plaintiff is warranted by his testimony.

There is no prejudicial error in the record, and the judgment will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Brown v. State.
    Opinion delivered June 18, 1923.
    Weapons — railroad guard carrying on railroad property. — Under Crawford & Moses’ Digest, § 2804, making it unlawful to carry a pistol as a weapon, but providing that a person may carry a weapon upon his own premises, guards employed hy a railroad company to protect employees are liable for carrying weapons, although on property belonging to the company.
    Appeal from Pulaski Circuit Court, First Division; .John W. Wade, Judge;
    affirmed.

      E. B. Kinsworthy and R. E. Wiley, for appellants.
    The appellants were special guards employed by the railroad company to protect its property during the strike, were stationed on its premises by the owner, were its agents for the control thereof, and were not violating the law in carrying pistols for this purpose. C. & M. Digest, § 2804. The courts of other States, under similar statutes, have held that such guards come within the exception. 129 N. C. 521, 39 S. E, 824; 93 N. C. 585, 53 Am. Hop. 472; 50 S. W. (Tex.) 348. One having dominion or control over the land is within the exception. 56 Ark. 559; 49 Ark. 174; 45 Ark. 536. The cases should be reversed and dismissed.

      J. 8. TJtley, Attorney General, John L. Garter and Wm. T. Hammoch, Assistants, for appellee.
    Appellants were on the premises of the master, and could not carry pistols there without violating the statute. Section 2804, Crawford & Moses’ Digest. Neither was it necessary for them to carry pistols in discharging their duty during the strike, since they could have 'been effectively armed with guns without any violation of law. Provision in a statute which permits a person to carry a weapon on Ms oivn premises will not be a defense to a prosecution of a servant who at the time is on the master’s premises. 8 R. C. L. 293; 120 N. C. 582; 49 Ark. 174; 45 Ark. 536.
   Smith, J.

Appellants were tried on an agreed' statement of facts and convicted of carrying concealed weapons. The substance of the agreed statement of facts is as follows: Each of the defendants carried a pistol as a weapon in the railroad yards belonging to the Missouri Pacific Railroad Comnany, in the city of North Little Rock. They were each then and there engaged in the performance of their duties as special guard in the service of the railroad company for which they had been employed.

The railroad company is a corporation authorized to do business in Arkansas, and was then and there, through its officers and agents, in possession of the premises in question. Said premises consisted of a large parcel of land on which the railroad company was then maintaining vards, consisting of railroad tracks, machine shops, coal houses, storage houses, water tanks, tool houses and other buildings and structures in large numbers, for use as railroad terminals for the cities of Little Rock and North Little Rock, for the purpose of carrying on its business as a common carrier.

It was further agreed that prior to July 1, 1922, said railroad company employed several hundred mechanics, carpenters, machinists and skilled laborers of various kinds, who worked on said premises in the construction and repair of cars, locomotives and other structures belonging to the said railroad company, to keep and maintain the property of said railroad company for the purpose of carrying out its duties as a common carrier. On July 1, 1922, practically all of said workmen quit their work and went out on a strike, in compliance with the orders of the governing bodies of the several unions or crafts of which said workmen were members, and that said strike was in full force from that date until and after the said July 5, 3922. In the progress of said strike said strikers and their sympathizers picketed the said premises of said railroad company, and congregated in large numbers near all regular points of • ingress or egress to said premises, and undertook to persuade and prevent any persons from working in their places as mechanics and craftsmen, as aforesaid, and thus to interfere with the conduct by said company of its business as a common carrier. There were threats of violence against those who undertook to remain in the service' of said railroad company, or to enter said service to take the place of the strikers, and there were acts of violence against such persons.

“The said railroad company undertook to hire other persons to take the place of said strikers, and did hire and have such persons, and put them to work on the premises aforesaid. The officers and managers of said railroad company considered it necessary to station special guards upon said premises for the purpose of protecting the property located on said premises and the persons engaged in the work formerly done by the strikers on said premises, from depredation and injury by the unlawful acts of other persons. For that purpose said railroad company had employed as its servants and agents the defendants, had stationed them on said property, and held them responsible for safeguarding the said, property to the extent of their ability to guard and protect it. They were engaged in the performance • of their duties as such special guards when they carried the pistols as weapons as hereinbefore stated.

“The pistols carried by the defendants were not such pistols as are used in the army or navy of the United States.”

By § 2904, C. & M. Digest, it is made unlawful for any purpose to carry a pistol as a weapon, but there is a proviso that “nothing in this act shall be so construed as to prohibit any person from carrying any weapon when upon a journey or upon his premises.”

It is the insistence of counsel for the appellants that, under the facts recited above, appellants are entitled to the benefit of the exception permitting one to carry a weapon upon his premises. But the majority of the judges do not think so.

No one of these guards had the exclusive possession of the premises, or any part of them, nor did the guards, all together, have the exclusive possession of the premises, or any part of them. The premises were primarily and principally used and occupied by the employees of the company who were engaged in the performance of the labor for which the various buildings of the company were intended.

In 8 R. C. L. p. 293, it is said: “An exception in a statute which permits a person to carry a weapon on his own premises will not be a defense to a prosecution of a servant who at the time is on his master’s premises.”

In 2 McClain on Criminal Law, § 1035, it is said: “Some statutes permit one to carry a concealed weapon on his own premises. .A laborer on the land of another is not within such exception; nor is one upon his own premises when, in fact, he has leased the ■premises to- another without reservation of authoT-ity to enter thereon. The common stairway or halls of a building, occupied by offices of different persons, are not within the description of one’s ‘own property’. So one engaged in supervising the erection of a building for another is not on his own premises. Under a statute not making such an exception, it is no defense that the Aveapon was carried within the curtilage of defendant’s abode. ’ ’

In Kinkead v. State, 45 Ark. 536, the defendant was a contractor engaged in the erection of a certain building for another person, and he was arrested in the building while in the supervision of the work, and a pistol was found, on his person. It was insisted that he came within the exception of the statute alloAving one to carry weapons upon his own premises; but the court said: “The exception only protects such as have an estate or interest in the real property which constitutes the premises. Obviously a builder, having merely a lien for his work and materials, has no such interest.”

The language quoted was somewhat qualified in the case of Clark v. State, 49 Ark. 174, where’the court said that doubtless a tenant in possession of leased premises has such an interest in the premises as to be entitled to the benefit of the exception.

In the opinion of the majority, appellants had no interest or estate in the premises as tenants or otherwise. They were there as employees only. There was no part of the premises the possession of which they did not share with other guards and employees, and they were not, therefore, upon their premises Avithin the meaning of the proviso contained in the statute.

It is true the appellants were upon the premises to exclude certain other persons from the premises, and this is a right which the railroad company had, as the owner of the premises; but, in the opinion of the majority, the exercise of this right did not oner ate to bring them Avithin the exception contained in the statute. It is unlawful to carry weapons, and only those persons may do so who come Avithin the excepted class, and as, in the opinion of the majority, the appellants were not on their own premises, the court below properly adjudged them guilty, and that judgment is affirmed.

Mr. Justice Hart and the writer are of opinion that appellants are within the exception contained in the statute.


text:
    Owens v. State.
    Opinion delivered June 18, 1923.
    1. Indictment and information — separate counts alleging means OF killing — election.—Where the indictment for murder alleged the killing in different ways in three separate counts, and stated that the crime charged in the second and third counts was identical with that charged in the first count, it was not error to refuse to require the State to elect upon which count defendant would he tried.
    2. Homicide — evidence—surrounding circumstances. — Where defendant was charged with murder following a disagreement between him and deceased in the presence of other companions during a drunken orgy at defendant’s house, the admission of evidence as to a disagreement between defendant and another, after defendant’s return from the river, where he had taken deceased, and where it was charged that the killing took place, together with other testimony as to defendant’s conduct in connection with the maudlin quarrel which led to the killing or tending to explain defendant’s connection with it, was not erroneous.
    3. Homicide — proof of violation of liquor laws. — Where, in a prosecution for murder, it was admitted that defendant was engaged in the illicit manufacture and sale of whiskey, testimony of a witness that he was offered whiskey by defendant, and that he found a still at some distance from defendant’s house, was not prejudicial.
    4. Criminal law — admission of testimony — harmless error.— In a prosecution for murder, where defendant admitted that he had been engaged in the manufacture of liquor, the testimony of a witness that defendant had purchased a large quantity of sugar from him a short time before the killing was not prejudicial.
    5. Criminal law — accomplices—jury question. — In a murder " trial where witness testified that they went with défendánt to the river and assisted him in disposing of deceased’s body only because they were compelled to do so by defendant’s threats, the court properly submitted to the jury the question whether such witness were accomplices.
    6. Criminal law — corroboration of accomplice. — Evidence held to corroborate testimony of alleged accomplices.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed

      June R. Morrell, for appellant.
    The court erred in not requiring the State to elect upon which of the three counts of the indictment appellant should be tried. Error was also committed in allowing evidence introduced showing appellant was engaged in making and selling intoxicating liquor. This was done by the State before defendant’s testimony was introduced or any admission had been made of the fact. 70 Ark. 610; 11L. R. 1. The verdict is clearly against the weight of the testimony, and the evidence does not corroborate sufficiently the statements of the accomplices to warrant a conviction of murder in the first degree. Certainly the death penalty should not be inflicted on a conviction on any such testimony. The judgment should be reversed, or in any event so modified as only to impose imprisonment for life.

      J. 8. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.
    The evidence relating to appellant’s making and selling intoxicating liquor was not unrelated to the offense with which he was charged, but was so interwoven and connected with it that some evidence of it necessarily got into his case in the testimony relating the circumstances about it. Underhill on Evidence, 154, par. 88; 6 Enc. of Evidence, 607; 14 Ark. 555; 10 R. C. L. 930 par. 94, 939 par. 106, 925 par.' 87; 62 Ark. 259; 40 Ark. 511; 13 Ark. 236; 82 S. W. (JKy.) 369; 1 Bishop, New Criminal Procedure, § 1125; 168 N. Y. 305. No error was committed in the introduction of this testimony about a fact which was admitted by defendant. No error shown in the introduction of testimony of the so-called £ ‘ accomplices ’ ’, who were not in fact accomplices, as the evidence shows. 66 Ark 16; 105 Ark 16; 45 Ark 539; 51 Ark. 189. The jury was properly instructed on the question of accomplices and necessity for corroboration of their testimony in instruction “E,” and whether these witnesses were accomplices of defendant was a mixed question of law and fact to be determined by the jury. 43 Ark. 367; 51 Ark. 115; 51 Ark. 189. Even if they were accomplices, and they were not, there is sufficient corroboration of their testimony.
   Smith, J.

Appellant was convicted of murder in the first degree, and has been sentenced to be electrocuted. The indictment under which he was tried contained three counts, each charging him with having killed Hugh Throckmorton. The first count alleged that he killed Throckmorton by twisting and breaking his neck with his hands; the second count alleged that appellant killed Throckmorton by striking and beating him with a pistol; and the third count alleged that the manner and means of the commission of the crime were unknown to the grand jury; but both the second and third counts contained the allegation that the crime there charged was identical with that charged in the first count.

The court refused to require the State to elect upon which count appellant would be tried, and an exception was saved to that ruling. No error was eommitteed in this ruling, as it was not improper to thus charge the offense to meet the uncertainty in the proof and thereby prevent a variance. Williams v. State, 153 Ark. 289; Nordin v. State, 143 Ark. 364; Harris v. State, 140 Ark. 46; Davidson v. State, 108 Ark. 191; Grayson v. State, 92 Ark. 413.

According to the testimony on the part of the State, the crime was one of revolting brutality. Appellant was engaged in the manufacture and sale of moonshine whiskey, and was being freely patronized by deceased and several other neighbors, but he drank with them, and they all became more or less intoxicated. Appellant took charge of the party and ran it to suit himself. He conceived the idea that some one had stolen his money, about two hundred dollars, and he accused Euclid Cooper of having taken it. Cooper had got drunk and had left the scene of the carousal, and appellant ordered Throck-morton to find and bring Cooper to him, and he told Throckmorton that if he did not bring Cooper back he would kill him. Appellant had a controversy with one Jim Parham about a gun which he unsuccessfully attempted to take away from Parham, and then turned to Throckmorton and said: “You go get Cooper, or I’ll kill you.” Throckmorton protested that he did not know where Cooper was, but appellant marched Throck-morton out of the house and started with him towards the river, and cursed and abused him as he went, and he fired his pistol twice as he marched Throckmorton towards the river. Appellant does not appear to have shot Throckmorton, but the testimony strongly indicates that, after taking Throckmorton to the river bank, ar>-pellant beat him with his pistol and left him for dead, and he then returned and found Taylor and Lovewell, who testified that appellant compelled them to go with him to dispose of the body, and the three went back to the place where Throckmorton was lying, and they found he was not dead, but had regained consciousness, and he begged appellant not to kill him, but appellant seized Throckmorton’s head and, by turning it and twisting it, broke Throckmorton’s- neck. Taylor and Lovewell assisted appellant in putting the body in the boat, and they carried it down the river about three-auarters of a mile and dumped it into the stream. Before doing so, appellant ■ removed Throckmorton’s coat and had Taylor hang it on a snag in the river, and explained that he was having this done to make it appear, if the body was found, that Throckmorton had in some way drowned himself.

A physician who held a post-mortem testified that Throckmorton was dead when the body was placed in the river, and that the neck was broken. He testified that he conld not tell how the neck was broken, bnt that Throckmorton had not been hung.

Appellant was a witness in his own behalf, and admitted the trnth of much of the testimony against him, bnt denied having assaulted Throckmorton in any manner, and denied that Taylor and Lovewell went with him to the river bank, or that Throckmorton’s body was lying thereon, or that it was thrown into the river. Appellant admitted having quarreled with Parham, but • testified that it was because Parham, who was his partner in the liquor business and owned half of the money which had been stolen from him, would not give him his gun to be used in searching for Cooper. Appellant’s disagreement with Parham was renewed after his return from the river, where he had taken Throckmorton, and the admission of this testimony is assigned as error. We think this testimony was properly admitted, as the entire narrative was necessary to a correct appreciation of what appellant had done and why he did it.

What we have just said disposes of the objection to certain other testimony, all of which related to appellant’s conduct in connection with the maudlin quarrel which led to the killing, or tended to explain appellant’s connection with it.

Objection was made to the testimony of witnesses Waldrop and Smith, on the ground that their testimony showed that appellant was guilty of another felony, that of operating an illicit still. That fact was not proved as a circumstance unrelated to the crime with which appellant was charged, but was a circumstance mentioned by the witnesses in their testimony. Waldrop testified that he was notified that Throckmorton was reported missing the day after he was killed, and that he joined in the search for the body, and, during his search, went to appellant’s house, where he was offered some whiskey by appellant, and appellant sent away for more whiskey, and on the next morning witness came upon the still, which was about a mile and a quarter from appellant’s house. This witness saw deceased’s mule, which he had ridden the day he was killed, at appellant’s house; and he also saw there two shotguns which the deceased and Cooper had been seen with on the day of the killing. The testimony of the witness Waldrop tends to show that appellant was taking no part in the search, although Throckmorton’s mule was at his place and the guns belonging to deceased and Cooper were in his house, and the still was located by the witness while searching for the dead man. Moreover, it was an admitted, undisputed fact that appellant was making and selling liquor. He made no denial of that fact, and the testimony of Waldrop and Smith was merely cumulative of that of other witnesses, whose - narrative of the incidents leading up to the killing necessarily involved the statement that appellant was making and selling whiskey.

W. C. Mize was called as a witness for appellant, and admitted, in his cross-examination, that armellant had bought at his store three hundred pounds of sugar a short time before Throckmorton was killed. It is no doubt true, as counsel for appellant insists, that the purpose of this cross-examination was to show that appellant was engaged in the manufacture of liquor; but, as we have said, this was one of the undisputed facts in the case, and we think no prejudicial error was committed in not excluding that testimony. Maddox v. State, 155 Ark. 19.

Appellant insists that the testimony of Taylor and Lovewell, if true, shows that they were accomplices, and that there was no corroboration of their testimony. Those witnesses testified that they went with appellant to the river and assisted him in disposing of the bodv onlv because they were required to do so, as appellant was armed with two pistols, and told them he would kill them if they did not assist him, and that he would kill them if they ever told what they had seen. The court submitted to the jury the question whether Taylor and Lovewell were accomplices or not, and gave a correct instruction on the subject of their corroboration if they were found to be accomplices. If the story told by these witnesses is accepted as true, they were not accomplices, and no corroboration of their testimony would have been required to support a conviction. But there was corroboration of their testimony. Other witnesses saw appellant march Throck-morton towards the river and heard him curse and abuse him and threaten to kill him if he did not produce Cooper, and in a short time appellant returned without either Throckmorton or Cooper. The sheriff of the county testified that, on the afternoon when the body was found, appellant told him that it would be found about twenty or thirty steps down the river, directly across the river from where the coat was hung on the snag in the river, and the body was found at about that place.

Upon a consideration of the whole case we are of opinion that no error prejudicial to appellant was committed, and that the testimony is legally sufficient to support the verdict, and the judgment must therefore be affirmed.


text:
    Freer v. Less.
    Opinion delivered June 18, 1923.
    1. Appeal and error — defense not raised below.' — The plea of the statute of frauds must be raised in the trial court, and cannot he first raised on appeal.
    2. Frauds, statute of — defense of, raised on demurrer when.— The question of compliance with the statute of frauds may he raised by demurrer only when it appears from the face of the pleading that the contract is oral, when it should have been written.

      3. Homestead — occupancy.—The character of a homestead is.not imposed upon a farm by a purchaser where he placed his son-in-law in possession and assisted him in making a crop, and spent a portion of each week on the farm, but spent the week-ends at his' home in town with his wife and family.
    4. Frauds, statute of — oral surrender of possession. — Where a ■purchaser of a farm, finding that he could not pay for it, surrendered its possession to his vendor by directing his son-in-law in possession to attorn to the vendor, which the son-in-law did, and the' purchaser died without executing a reconveyance, the surrender was effective.
    5. Limitation of actions — point of beginning. — Where a purchaser of land, finding himself unable to pay for the land, directed his tenant to attorn to the vendor, which was done, and . the purchaser died before executing a reconveyance, the attornment by the tenant formed a point from which the statute of ■ limitations would run against the heirs of the purchaser.
    6. Limitation of actions — subsequent disability. — Where a purchaser of a farm, being unable to pay for the farm, surrendered ■the farm to the vendor, and subsequently died, neither the subsequent insanity of the purchaser’s widow nor the infancy of his heirs would stop the running of the statute of limitations.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      Smith & Gibson and W. E. Beloate, for appellant.
    The lands were impressed as a homestead by T. J. McGinnis. 69 Ark. 596. There is no testimony to show that Less went into possession of the lands during the life of said McGinnis. If there was a resale of the lands, or a rescission of the contract of sale, it would come within the statute of frauds, and there was no writing evidencing it nor any facts shown that would take the transaction out of the operation of the statute. 91 Ark. 140; Smith, Fraud, 363. An oral agreement io rescind a contract for the sale of lands, entered into after some payments have been made, and others are due, will be held to be within the statute of frauds, and invalid unless followed by an actual abandonment of the sale by both parties and a restoration of the property to the vendor. 45 Mo. 404; 129 Ill. 431; 104 N. C. 389; 112 Wig. 196. Tlie evidence shows McGinnis “was supposed to have executed a deed for this, and he died before it was executed,” and the burden of proof was on appellees to show such a partial performance of the contract in Mc-Ginnis’ lifetime as would take it out of the statute and make it effective. 41 Ark. 97; 142 Ark. 179; 21 Ark. .227; 44 Ark. 79; 44 Ark. 334; 136 Ark. 447; 106 Ark. 336. The evidence does not show that McGinnis put Less into possession of the lands after his purchase thereof, nor that his tenants attorned to him after the alleged rescission of the contract. McGinnis’ tenants were in possession at his death, and their possession was his. Less had a lien for rents, and payment of rent by tenant of McGinnis in possession would not relieve the alleged oral sale of the lands from the operation of the statute of frauds.

      Poindexter & Irby and Ponder & Gibson, for appel-lees.
    The anpeal should he dismissed for noncompliance with Eule 9. The lands in controversy did not constitute the homestead of McGinnis, nor did his widow or any of appellants have any homestead right therein. It was never impressed witli a homestead character by Mc-Ginnis’ living with his family on it, intending to make it his home. Testimony does not bring it within rule in 69 Ark. 596. See 57 Ark. 179; 131 Ark. 221. If any homestead right existed. Mrs. McGinnis abandoned it. 134 Ark. 183; 104 Ark. 313. Less was plaéed in possession by McGinnis under a contract of rescission, and his possession was adverse under claim of ownership. Tim statute of frauds was not pleaded and cannot be availed of here. 147 Ark. 211; 144 Ark. 123. The demurrer would not raise the question, the necessary facts not appearing on the face of pleading demurred to. 128 Ark. 433; 105 Ark. '638; 71 Ark. 302; 96 Ark. 184; 96 Ark. 505; 92 Ark. 392. Oral contract of sale of lands Raises a. moral, obligation, and the vendor need not nlead the statute of frauds in an action for specific perform-anee., 121 Ark. 91; 11 Neb. 222; 105 Ind. 17; 109 Fed. 48; 15 Ohio 569; 18 Pick. 369. A parol agreement is neither illegal nor void, and a plea of the statute of frauds as a defense is one which may he waived. The pleadings do not show whether there was a written contract or not, and no motion was made to require it done, and the presumption is that the contract was in writing. 64 Ark. 462; 38 Ark. 594; 17 Ark. 279; 23 Ark. 200. There was sufficient performance of the contract anyway to take transaction out of statute of frauds. 52 Ark. 207; 69 Ark. 603; 128 Ark. 390; 115 Ark. 154; 30 Ark. 249; 42 Ark. 246; Browne, Statute of Frauds, § 467; 79 Ark. 100; 139 Ark. 469. Appellants are barred uy limitations and laches, and estopped to claim an interest in the lands in controversy. The testimony shows that Mc-Ginnis, through whom appellants claim, died after putting Less into possession under rescission contract. The tenants attorned to him. 10 Ark. 9; 132 Ark. 11. Tenant cannot dispute title of a purchaser of the landlord, anv more than he could dispute landlord’s title. 102 Ark. 380; 139 Ark. 43. The statute of limitations began to run in McGinnis’ lifetime, and his death in no wise affected it. 18 O. J. Deeds, 407-9; 160 S. W., 29 S. W. ,166, also 917; 50 Pac. 7, 73 Am. St. Rep. 532, 53 Am. St. R. 532; 55 Am. Dec. 234; 120 N. W. 724; 48 S. W. 483; 71 Ark. 292; 88 Ark. 395; 60 Ark. 50; 55 Ark. 85; 114 Ark. 759; 15 Ark. 286; 61 Ark. 527; 61 Ark. 575; 22 Ark. 263; 83 Ark. 495; 101 Ark. 230; 112 Ark. 467; 121 Ark. 423; 126 Ark. 26; 104 Ark. 83; 80 Ark. 8; 69 Ark. 603; 128 Ark. 390; 69 Ark. 153; 125 Mo. 118.

      Smith & Gibson and W. E. Beloate, in reply.
    Lands were homestead of McGinnis. 10 Am. & Eng. Enc. 8; Krone v. Cooper, 43 Ark. 547. Testimony does not show any deliver}'' of ’ possession of lands to Less after alleged verbal contract of rescission or resale was made. 41 Ark. 393. Neither does it show that Less was in such possession or in possession at all before Me-Giiinis’ cleatli. Tlie burden was on appellees to show these fads, and they have failed utterly to discharge it.
   Smith, J.

The widow and heirs of T. J. McGinnis brought this suit to recover the possession of a tract of land from the heirs of Isaac Less. A demurrer to the complaint was sustained, and the plaintiffs appealed, and we reversed the judgment of the court below, and remanded the cause, with directions to overrule the demurrer. McGinnis v. Less, 147 Ark. 211.

We held that the action should be treated as one against the mortgagees of land in possession for an accounting, and that when so treated a cause of action was stated. The complaint alleged that McGinnis departed this life intestate in the j^ear 1898, and that the plaintiffs were his widow and his heirs at law; that on April 16,1898, Isaac Less sold and conveyed to T. J. McGinnis a quarter section of land for $2,500, evidenced by ten notes each for $250, payable one each year on the an•niversary of the notes. The deed reserved a lien on the land and upon the crops grown thereon, and that clause of* the deed was copied in full in the former opinion. The complaint further alleged that McGinnis moved oh to and occupied the land as ids homestead, and that, upon the death of McGinnis, Less took possession of the land and has held it since, and has collected the rents thereon. The prayer of the complaint was for an accounting.

We held that the writing set out in the complaint as a basis of appellant’s title was a deed of conveyance, and not an executory contract to convey, and that, under the ollegations of the complaint, the title passed to McGin-nis upon the delivery of the deed, and upon his death descended to his heirs at law, subject to the widow’s homestead and dower rights, and that, when the grantor took possession for the purpose -of collecting rents in accordance with the stipulation in the deed, he was in the attitude of a mortgagee in possession.

Upon tlie remand of the cause the court sustained a motion to make the complaint more specific, and that was done, and the defendants filed an answer in which they alleged that the contract of sale had been rescinded, and that McGinnis, realizing that he could never pay for the land, had agreed to turn it back to Less, and, pursuant to this agreement, had placed Less in possession. The answer did not allege whether this agreement was in writing or not, and it is now insisted that the court erred in refusing to sustain a demurrer to that paragraph of the answer. Upon the remand of the cause the case was fully developed, and there was a finding and decree in favor of the defendant, from which is this appeal.

The plea of the statute of frauds was raised for the first time on appeal, and is therefore too late to be considered, as one is not required to plead it, and may waive that defense. Skinner v. Fisher, 120 Ark. 91.

It is insisted that the demurrer filed in the cause raised that question. But we do not think so. It is true the question may be raised by demurrer, but only when it appears, from the face of the pleading demurred to, that the contract is oral when it should have been in writing. Izard v. Connecticut Fire Ins. Co., 128 Ark. 433.

As we have'said, the answer in this case did not recite whether the contract of rescission was oral or in writing, and there was no motion to make the e^nwlamt specific in that respect. We think, however, that defense, if pleaded, was not available, for reasons hereinafter stated.

The testimony shows that on October 15, 1895, Less and his wife conveyed the land in litigation to McGinnis and one A. C. Estes for a consideration of $2,500, to be paid in ten years, but this consideration was never paid, and in some manner not explained Less reacquired title, and in 1898 executed the conveyance to McGinnis set out above.

An attempt was made to show that McGinnis impressed the land as his homestead, bnt we think this attempt failed. McGinnis placed his son-in-law, Pickens, in possession, and assisted him in making a crop in 1898, and spent a portion of each week on the farm, but his wife never left her home in town, where she and her husband were living when they bought the land, and Mc-Ginnis spent the week-ends at his home with his wife and his family, and he died in December, 1898, without ever having .abandoned his home in town by moving on the farm.

Pickens testified that McGinnis directed him to at-torn to Less, and that he did so, and it is insisted that this was done pursuant to the provision of the contract giving Less a lien on the crop of each year to secure the payment of purchase money due that year. But McGin-nis was not in default when be died, as no payment of principal fell due until after his death.

We think the testimony establishes the fact that Mc-Ginnis directed Pickens to attorn to Less for the reason that McGinnis had in fact surrendered the possession to Less, and the deed which should have been made to Less was not made because McGinnis died suddenly. Several disinterested witnesses testified that they heard McGinnis say that he found he could not pay for the land and that he had turned it back to Less for that reason, and, in our opinion, the testimony establishes this to be a fact. This agreement to surrender the land and to reconvey it became effective, notwithstanding it should have been evidenced by a deed o.f conveyance when the possession was taken under that agreement. Certainly it formed a point from which the statute of limitations would begin to run. Garretson v. White, 69 Ark. 603; Briggs v. Moore, 128 Ark. 390; Branstetter v. Branstetter, 115 Ark. 154; Pindall v. Trevor, 30 Ark. 249; Pledger v. Garrison, 42 Ark. 246.

There is testimony showing that certain of the plaintiffs have been laboring under the disability of infancy, and an attempt was made to show that Mrs. McGinnis was insane, but, in our opinion, this attempt failed. At any rate, there is but little testimony that she became insane prior to the death of her husband, and, if she was ever insane, she became so many years after his death.

Neither the subsequent insanity of the widow nor the infancy of the heirs would avail to prevent the running of the statute of limitations, because, in the lifetime of the husband and ancestor, Less reentered and took possession of the land under an agreement entitling him to do so. His holding was actual and adverse in the lifetime of McGinnis, and, as the statute of limitations was put in motion in McGinnis ’ lifetime, its running was not arrested by his death, and the widow is now dead, and as this adverse possession is shown to have continued from the fall of 1898 to the institution of this suit in 1919, it necessarily follows that the plaintiffs were barred by the statute of limitations, and the court below properly so found, and dismissed the complaint. Bender v. Bean, 52 Ark. 132; Gibson v. Herriott, 55 Ark. 85.

It is also insisted that the cause of action is barred by laches; but, as we have found that it was barred by limitations, we need not consider whether it is not also harried by laches.

The testimony is by no means undisputed; on the contrary, there are a number of sharp conflicts in it, but we think two facts are clearly established; first, that the land, and that he had turned it back to Less for that second, that McGinnis surrendered the possession to Less, who occupied the land until his' death, and whose heirs have since occupied it continuously and adversely. These facts being established, it follows that the suit is barred b}^ limitations, and the decree of the court below so holding is affirmed.


text:
    First National Bank of Monette v. First National Bank of Lepanto.
    Opinion delivered June 18, 1923.
    1. BANKS AND BANKING — REPRESENTATION BY AGENT. — Where there was a collusive agreement between the cashiers of two banks to lend each other money, and the cashier of plaintiff bank sent for collection a note to the cashier of defendant bank, knowing that in what the latter cashier did he would be acting for himself and not for defendant bank, the latter would not be liable for a. conversion of such note by its cashier.
    2. Damages — conversion op note. — In an action for the conversion of a note, the damages recoverable is prima facie the face value of the note, but the defendant may show any fact or circumstance tending to invalidate it or reduce its value.
    3. Banks and banking — collections—liability.—A bank receiving a note for collection should either account for or surrender it.
    4. Pleading — variance.—Where a complaint against a bank for conversion of a note alleged that defendant converted a note sent to it for collection which bore the names of defendant’s cashier as principal and one M. as surety, plaintiff- was entitled to recover upon proof of such conversion, though the evidence showed that the note was signed by one N. as surety, unless defendant could show that he was misled by the variance to his prejudice.
    Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    reversed.

      Horace Sloan, for appellant.
    Appellant was entitled to recover for tlie conversion of the note whatever its value was. 119 Ark. 334; L. B. A. 1916-C, 544; 29 Ark. 365. The action of defendant hank, as collecting agent, in taking in lieu of note sent for collection note signed by Harkins and Nawlyn, making it payable to itself, constituted a conversion. 153 Ill. 168, 39 N. F. 265; 44 Ill. 312; 8 Wall. (U. S.) 641, 19 L. ed. 422; Mechera on Agency, 954 The note alleged to have been converted is in possession of defendant hank or was lost by it. The measure of damages recoverable for conversion of note is the value of the note, the value prima facie being its face, but defendant may show any fact or'circumstance tending'to invalidate it or reduce the value. 34 Ark. 421; 6 Ann. Cas. 841, note. The court erred in giving instruction No. 2. 13 Enc. of Evidence, 645-6; 16 Ark. 303; C. & M. Digest, § 1234-6; 44 Ark. 486; 138 S. W. 931; 240 U. S. 284, 36 .Sup. Ct. 308; 129 Ala. 192, 29 So.' 800; 14 Me. 72; 15 ;N. J. L. 337, 19 Am. Dec. 691; 2 Hill (N. T.) 250; 28 Fed. 521; 2 Str. 809; 67 N. C. 241. Note payable to person as cashier is deemed prima facie to be payable to the bank or corporation of which he is such officer. 1 Clark '8-; Styles on Agency 727; C. & M. Digest, § 7808; 17 Me. 360; 28 N. Y. 641, 86 Am. Dec. 273; 46 Mo. 17. The court erred in admission of certain testimony and in refusing to give instruction No. 3 requested by plaintiff. .Court erred in not withdrawing case from the jury because of misconduct of one of the jurors. C. & M. Digest, §§ 1294, 1295. This is not as those cases where verdict disclosed after reached, but it was flagrant misconduct to tell how the jury stood divided. 56 Mich. 536, .23 N. W. 211; 126 N. W. 468; 2 Thompson on Trials, § 2617.

      John W. Scoby, for appellee.
    The circuit court should submit only such issues to the jury as are raised by the pleadings or evidence. 130 Ark. 165. Cannot present an issue for' reversal here that not raised by appellant below. 151 Ark. 554. There is 'little use to discuss the liability for the conversion of the mote and the measure of damages, since the jury has 'found there was no note converted. The rule for measure óf'damages is laid down in 26 R. C. L. 1150. No error committed in giving defendant’s requested instruction No. 1. 3 R. C. L. 627, §§ 265, 629; 13 Am. St. Rep. 247; 2 L. R. A. (N. S.) 194; 154. Ark. 76; 14 L. R. A, (Ky.) 376. No misconduct of jury shown requiring withdrawal of case from it. Williams v. Williams, 112 Ark. 507; 2 Thompson-Trials, § 2353. Plaintiff’s requested ins truetion No. 1 was covered by No. 1 given by this court. 130 Ark. 435.
   Smith, J.

This is a suit on tbe part of tbe First National Bank of Monette against tbe First National Bank ' of Lepanto for the alleged unlawful conversion of a • promissory note. Tbe complaint alleged that the plaintiff bank was tbe owner of a negotiable promissory note, dated June 25, 1920, executed by J. H. Harkins as principal and L. D. Mullins as surety, to plaintiff as payee, for $2,000, and due in ninety days; that this note was sent by tbe plaintiff to defendant for collection, and was wrongfully converted by tbe defendant.

Ned Fraser was the cashier of the plaintiff bank, and bis brother, Clinton Fraser, was tbe president thereof, and they both testified that the note described above was sent to the defendant bank by registered mail, along with two other notes, for collection. Tbe other notes received proper attention, but no acknowledgment was made of the note sued on. There was considerable correspondence about this note, chiefly on the part of the plaintiff bank, and both the Frasers made trips to Le-panto to see about it.

It is practically conceded that Harkins received, from the plaintiff bank a note for $2,000, dated. June 25,' 1920, due ninety days from date, which he had signed; but, whether expressly conceded or not, the testimony. leaves no room for doubt on that subject, but there is a . question of fact whether Harkins received the note for the defendant bank or in his individual capacity, and there is also a question as to who the surety was, ■

The testimony is undisputed that plaintiff bank had held Harkins’ note for $2,000, with Mullins a,s surety thereon, and that this note was renewed, and Mullins was surety on it also-. This second note was not paid, but was renewed, and the note sued on is the note which was given in renewal. The president and' the cashier- of the plaintiff bank testified that Mullins had signed this note —the one sued on.

Harkins was tbe casliier of the defendant bank, and, before the expiration of the year in which the note was executed, he was succeeded as cashier by Mullins. Har-kins does not deny signing- the note sued on, but he did not state who signed the note with him. Indeed, objections were sustained to questions which would have elicited that information, it being the theory of the court that plaintiff bank could recover only for the conversion of the note described in the complaint. Mullins admitted having signed two notes as surety for Harkins, but he testified that he had signed only two, and denied that he had signed the last renewal note. On the contrary, he testified that Harkins told him the note had not been renewed, but had been paid.

The correspondence and the other testimony make it plain that the plaintiff bank did not expect the note to be paid at the time it was sent to the defendant bank for collection, but did expect a renewal, and Harkins finally attempted a renewal of it. This he did by sending to the plaintiff bank ¡a note for $2,000 signed by himself and Nawlyn, but this note was payable to the Bank of Lepanto, and not to the order of the Bank of Monette, and was returned bv the latter bank on that account. Harkins explained that this was a mistake, but he never corrected it.

Nawlyn testified that the only note of Harkins which he ever signed was the one payable to the defendant bank, and he denied that he had ever signed a note payable to the plaintiff bank.

It was shown that any mail addressed to the defend ant bank would, in the usual course of business, have passed through Harkins’ hands, and he no doubt received the note in question. What he did with it is not explained..

The tesfimorv developed the fact that the cashier of each of these banks was lending money to the other, and in about equal amounts; but they both testified that tliev had authority from their resnective boards to do so, Tt is the theory of the defendant that the cashier of the plaintiff bank knew Harkins was acting for himself, and not for the defendant bank, in this transaction, and an attempt was made, on his cross-examination, to develop the fact that the note was not sent to the defendant hank, hut was sent to Harkins individually. An objection was made to this testimony, bnt we think it was proper. If there was, in fact, a collusive agreement between these cashiers to lend each other money, and the cashier of the plaintiff bank sent the note to Harkins knowing that in what Harkins did he would be acting for himself individually, and not for the bank, the defendant bank would not be liable for the conversion of the note by Harkins, oven though he should admit its conversion, because, in a transaction of that kind, he would not be the bank’s agent. Little Red River Levee District No. 2 v. Garrett, 154 Ark. 76.

The Frasers denied there was any such purpose or understanding; bnt the question of fact is for the jury, ■ and we cannot say there was not sufficient testimony to carry that question to the jury.

This issue was submitted to the jury, and we would not reverse the judgment had the case gone to the jury on that theory alone; but the case was also submitted upon the theory that the plaintiff could recover in the event only that the jury found that the defendant bank had received the identical note sued on, that is, one signed by both Harkins and Mullins.

The plaintiff asked, but the court refused to give, the following instruction: “1. If you find from the evidence that the plaintiff bank sent to the defendant bank for collection a promissory note; that the defendant bank actually received said note; and that the defendant bank, after having either failed or neglected to collect said note, failed or refused, upon demand made by plaintiff, to return said note to plaintiff bank, the defendant bank is liable to the plaintiff bank for the conversion of said note, and you.should return a verdict for the plaintiff.”

It 'will be observed that this instruction did not deal with the amount of the recovery, which would, of course, be for the value of the note, whatever that was. Hooten v. State, 119 Ark. 334; Norman v. Rogers, 29 Ark. 365. Prima facie, the value of the note is its face, but the defendant is at liberty to show any fact or circumstance tending to invalidate it or reduce its value. Ray v. Light, 34 Ark. 421.

We think the instruction set out should have been given. If the defendant bank received for collection a note belonging to the plaintiff bank, it should account for it or surrender it. This is elementary law.

,The court gave, over plain tiff !’s objection, an in-structioh numbered 2, reading .as follows: “2. Unless you find from the evidence that the plaintiff owned the note set out and described in the complaint, your verdict should be for the defendant.”

To this instruction six specific objections were made, the third, fourth and sixth being as follows:

“3rd. Whether Mullins was surety on the note or not, it does not go to the question of liability. The defendant bank had no right to convert the note to its own use, whether Mullins was surety or not, or whether some one else was surety. This instruction is equivalent to stating to the jury that, even though they find that a note was sent to the defendant bank for collection, and that defendant received the note and converted it, still defendant would not be liable unless Mullins was the surety thereon.
“4th. The court should instruct the jury that the indebtedness involved in this action is the principal indebtedness of John Harkins, that there is no question that both banks are referring to the same debt, as the defendant bank has produced purported prior notes covering the same debt on which Mullins was surety; that the matter of who was surety on the third renewal of' this indebtedness, so far as a description of the debt is concerned, is not of the substance of the issue; that if the defendant bank converted a -note to plaintiff on which Harkins was principal, defendant is liable for the conversion, whether Mullins or some other person was surety on said renewal.
‘ ‘ 6th. This instruction makes the entire description of the note sued on material. Thus, a difference in date or interest rate would, under this instruction, justify the jury in returning a verdict for the defendant, which would not be the law.”

We think the instruction should not have been given, and that the objections set out were well taken. Sections 1234, 1235, and 1236, C. & M. Digest.

In the case of Molen v. Orr, 44 Ark. 486, Chief Justice Cockrill, for the court, said: “That there was a variance between the proof and the allegations of the complaint there is no question; but the materiality of the variance is not to be determined, as at common law, by the incoherence of the two statements on their face. It must be shown by the party alleging the variance that he has been misled to his prejudice. (Mansf. Dig., § 5075; Newman on Pl. & Pr. 720 et seq.; Green, Ib. 467). There was no pretense of surprise or of being misled in this case. Indeed, the only fact in the proof that is not found in the pleadings is the dissolution of the copart-nership, and the release by one copartner to the other of his interest in the matter in controversy. This evidence was admitted without objection, and we must take it that the parties deemed the variance immaterial, or that they treated the complaint as amended to admit siich evidence. Burke v. Snell, 42 Ark. 57; Green, Pl. & Pr. § 468; Manice v. Brady, 15 Abb. Pr. (O. S.) 173; Speer v. Bishop, 24 Ohio St. 598. So long as the claim proved is within the,‘general scope .and meaning’ of the pleadings the variance cannot amount to a failure of proof .(Mansf. Dig., § 5077), and it is apparent from -the record that no other claim than the one proved was within the meaning of either the complaint or answer.”

If the bank received a .note signed by Harkins and some one else, it should account for it. There was no attempt to- show that the note was without value, and if the defendant bank converted the note, then it should pay the plaintiff bank its value, whatever that may be.

A question is raised about the alleged misconduct of the jury, but as this is a question which is not likely to occur on a trial anew, we do not discuss this assignment of error.

For the errqrs indicated the judgment is reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Newberger Cotton Company v. Temple.
    Opinion delivered June 18, 1923.
    1. Mortgages — action by mortgagee against purchaser — EVIDENCE. —In an action by a mortgagee to recover the value of mortgaged cotton purchased- by defendant from the mortgagor, it was immaterial that in three prior years the mortgagee had allowed the mortgagor to sell his crop, where, in the immediately preceding year, there were no business dealings between the mortgagor and mortgagee.
    2. Mortgages — action by mortgagee against purchaser. — In an action by a mortgagee to recover the value of mortgaged crop purchased by defendant from the mortgagee, held a question for the. jury under the evidence whether the mortgagee’s agent had authority to release the mortgage lien, and whether he did so.
    Appeal from Miller Circuit Court; George R. Haynie, Judge;
    reversed.

      Shaver & Shaver, for appellant.'
    The court erred in sustaining tlie demurrer to last paragraph of answer. The defendant liad a right to rely upon custom of plaintiff in allowing disposition by tenants of their cotton mortgaged to him. Mortgage lien may be waived by parol agreement. 94 Ark 165; 131 Ark. 197; 11 C. j. 624, § 339. The court erred in directing a verdict for plaintiff. The testimony was in coniiiet on tlie question of this agent’s authority to release tlie mortgage and also upon tlie question of whether it had been done. 93 Ark. 272; 105 Ark. 526; 62 Ark. 63; 131 Ark. 197. "Whether an agent or servant acted within the scope of his authority is a question for the jury. 42 Ark. 97; 48 Ark. 177; 95 Ark. 144; 82 Ark. 86. There is a. positive, material and irreconcilable ' conflict in the testimony of the witnesses, Qrton and Oliver. 112 Ark. 507; 148 Ark. 66; 97 Ark. 438; 76 Ark. . 888; 113 Ark. 221; 132 Ark. 63.

      Steel & Reynolds and Jones & Head, for appellee.
    Appellant abandoned all assignments of error not insisted upon here. 135 Ark. 272; 147 Ark. 469; 139 Ark. 283. The evidence is uncontroverted that appellee demanded the cotton before suit brought. No error in sustaining demurrer to paragraph of answer relative to custom of allowing tenants to sell mortgaged cotton and account for the proceeds of sale. 126 Ark. 281. The facts of this case are different from the case cited for appellant. 94 Ark. 165; 131 Ark. 197. The verdict was properly directed. It is conclusively shown that Orton did not have express authority to permit Joe Wright to sell the cotton, that he did not give any such permission, and the proof does not show any such implied authority. 49 Ark. 320; 96 Ark. 456; 140 Ark. 312. Person dealing with an agent is bound to ascertain the nature and extent of his authondy. 62 Ark. 33; 92 Ark. 315; 117 Ark. 173; 105 Ark. Ill; 100 Ark. 360; 101 Ark. 75. Existence of an agency cannot be established bjr proof of the acts and declarations of the agent. 122 Ark. 357; 131 Ark. 197; 126 Ark. 405; 53 Ark. -208; 105 Ark. 446. The evidence was not legally sufficient to support a verdict for defendant. 57 Ark. 461; 97 Ark. 438; 116 Ark. 56; 226 S. W. (Ark.) 519; 136 Ark. 190; 255 Fed. 451; 199 IJ. S. 142, 50 L. ed. 125; 141 N. T. S. 220; 76 Atl. 510.
   Humphreys, J.

Appellee instituted suit against appellant in the circuit court of Miller County to recover $196.44, the value of three bales of cotton purchased by appellant from Joe Wright, who had, prior to the sale, executed a chattel mortgage thereon to appellee for supplies. All the allegations of the complaint were admitted by appellant, who interposed the affirmative defense that appellee trusted Joe Wright, the mortgagee, as was his custom in preceding years, to sell the cotton and account for the proceeds thereof. Over the objection of appellant a demurrer was sustained to the plea of custom. The case then proceeded to a hearing, and at the conclusion of the testimony the court, over the objection of appellant, instructed a verdict for appellee. The judgment, was rendered in accordance with the instructed verdict, from which is this appeal.

In the course of the trial appellant offered proof, which was excluded, over its objection, tending to show that in the years 1916, 1917, and 1918 appellee had permitted Joe Wright to sell his crop, which had been mortgaged to him, in the open market, and to account for the proceeds. It appeared that Joe Wright procured his supplies elsewhere in the year 1919, and did not trade with or mortgage his crop to appellee that year. Appellant insists upon a reversal of the judgment because the court sustained a demurrer to that part of its answer interposing the affirmative defense of custom, and because proof tending to establish such custom was excluded by the court. It is unnecessary to determine whether such usage was proper matter for defense in this case, as the undisputed testimony showed a break of an entire year in business transactions between appel-lee and Joe Wright. The chattel mortgage, made the basis for this suit, covered supplies for the year 1920. No supplies were furnished to Joe Wright in' 1919 and no mortgage was given by him to secure same. He settled his account with appellee in 1918, and traded elsewhere during the year 1919.

Appellant next insists for a reversal of the judgment because it was alleged that no demand was made for the cotton before the institution of the suit. The insistence is not supported by the evidence. W. R. Orton, appellant’s bookkeeper and manager, testified tbat he demanded the cotton from appellant’s agent before the suit was commenced. The testimony on this point was not contradicted.

Appellant’s last insistence for a reversal of the judgment is that the court erred in instructing the jury to return a verdict for appellee. The three bales of cotton in question were under shelter on the farm cultivated by Joe Wright. Appellee had an employee who was keeping watch upon it. Joe Wright sold two bales of the cotton to appellant and the third bale to A. Goldman, who sold same to appellant. It was soon discovered that the cotton, as well as Joe Wright, had disappeared, whereupon W. R¡ Orton, a manager and bookkeeper for appellee, immediately communicated with him, and received directions to search for and recover the cotton. Orton discovered who had purchased the cotton, and had a conversation with Oscar Oliver, bookkeeper and cotton buyer for A. Goldman, concerning same. Touching upon the issue of whether permission had been given Joe Wright to sell the cotton upon the market, Oliver and Orton, in response to questions, testified as follows:

Oliver’s testimony: “Q. Mr. Oliver, did Mr. Or-ton state to you that he had trusted his negro, or words to that effect, to bring this cotton into Ashdown and sell it, and that he had run off and had not brought the money back to him, and when you asked him about it he said he guessed he had talked too much? A. Yes sir.”

Orton’s testimony: “Q. Did you say to Mr. Oliver, in words or in substance, in Pulton, at anv time — I mean in Ashdown — that you had trusted this negro Joe Wright to bring this cotton (referring to the cotton for 1920) to Fulton — I mean Ashdown — and sell it and bring the money to you in Fulton, and then you said to him that you guessed you had talked too much. Did you make that statement to Mr. Oliver? A. T certainly did not. Q. Did you make that statement in substance, or in auv-tliing like it? A. No sir, I never. Q. Did you tell him, or anybody else, that yon or Mr. Temple, or any one for Mr. Temple or yon, had given this negro, Joe Wright, permission to sell his cotton for 1920, or any part of it? A. I did not, no sir. I was sending up to see about this cotton all the time.”

Appellee virtually admits that the conflict in the testimony of these witnesses presented an issue of fact for determination by the jury, for there had been no substantial evidence to show authority in Orton to grant permission to Joe Wright to sell the cotton freed from the mortgage liens. The record reflects that appellee’s mercantile business was in Fulton, quite a distance from his home, which was in Texarkana, and that the business was supervised largely by employees. Appel-dee visited the place of business every week or two. Or-ton was the bookkeeper and assistant manager for the business. He had charge of the accounts, credits, collections, settlements, and other things ordinarily incident to the business. At the time he made the statement attributed to him he was in pursuit of the cotton. It was a part of his duty to “keep a line on the cotton” of tenants to whom theAr had furnished supplies. From these facts the jury might have reasonably inferred, had the opportunity been extended, that it was within the scope of Orton’s apparent authority to authorise the mortgagee to sell the cotton and accouilt to him for the proceeds thereof.

“A principal is bound by all that is done by his agent "within the scope of his apparent power, and cannot avoid the conseauences of his acts because no authority was in fact given to him to do them, unless they were in excess of the agent’s apparent authority, or were done under such circumstances as to put the person dealing with him upon notice or inquiry as to his real authority.” Jacoway v. Insurance Co., 49 Ark. 320; Brown v. Brown, 96 Ark. 456; Pierce v. Fioretti. 140 Ark. 306. The testimony was conflicting upon the issues of whether Orton had authority to release the mortgage liens and whether he gave Joe Wright permission to sell the cotton in the open market, so it constituted reversible error to withdraw the case from th& jury. Bell v. S. W. Veneer Co., 132 Ark. 63.

The. judgment is therefore reversed, and the cause remanded for a new trial.


text:
    Layton v. Linton.
    Opinion delivered June 18, 1923.
    1. Forcible entry and detainer — forthcoming bond — liability of surety. — Where the plaintiff in an action of forcible entry and detainer executed the bond required by Crawford & Moses’ Dig., § 4844, conditioned for the payment of all sums recovered by defendant, a summary judgment in favor of defendant against plaintiff and his surety without additional notice was authorized by § 4854, Id.

      2. Trial — transfer of cause — effect of irregularity. — Where an order transferring a cause pending in the circuit court to the chancery court was made and entered of record, and the original papers were transmitted to the chancery court, in which court the cause was docketed and the parties entered their appearance, jurisdiction was acquired, though the circuit clerk failed to make and transmit a certified transcript of the proceedings in the circuit court.
    3. Trial — transfer of cause — jurisdiction.—Where a law case was transferred to equity on account of certain equitable issues which were subsequently eliminated', equity did not lose its jurisdiction where no motion was made for retransfer of the case.
    Appeal from Marion Chancery Court; Ben F. Mc-Mahan, Chancellor;
    affirmed.

      J. G. Floyd, for appellant.
    The judgment was obtained by fraud. Linton misled Childs, his attorney, and Layton, his bondsman, to believe he was not going to seek redress against them, and the judgment should be set aside. 15 E. C. L., pars. 214, 216; 51 L. E. A. 873; 23 Cyc. 1028 (h). Pelham v. Moreland, 11 Ark. 442; 15 E. O. L.- 764, par.-216; 765, par. 217; 5 Pomeroy’s Equity Jurisprudence, 2070-1. The summary judgment rendered on motion of Linton’s attorneys at the conclusion of the trial against Layton, without notice, is void. C. & M. Digest, 6250, 6252, 6257; 23 Cyc. 770 (c); 3 Ark. 488; 5 Pomeroy’s Equity Jurisprudence, 4703A, pars. 2084, 2085. No attorney represented Layton, and no notice or process was served upon him. 5 Pomeroy’s Equity Jurisprudence, 2086, 2092, 2093; 30 L. B,. A. 235, note 111. The court was without jurisdiction of the cause, which had not been property transferred (C. & M. Digest, 2185); 23 C3rc. 993-4,note 68; 5 Pomeroy’s Equity Jurisprudence, 2084-2087 ; 33 Ark. 77.8; 73 Ark. 333; 84 S. W. 77. Only a question of law determining the amount of damages was involved, and the chancery court acted without jurisdiction, and its judgment is void. C. & M. Digest, § 2185; 65 Ark. 503; 108 Ark. 147; 47 S. W. 407; 56 Ark. 391, 19 S. W. 1058; 113 IT. 'S. 550; 2 Pomeroy’s Equity Jurisprudence, pars. 679, 681, 735. Appellant is entitled to a permanent injunction against the collection of the void judgment.

      Sam Williams, for appellees.
    There was no agreement between Linton and La3Ton, Childs or his attorney, Owen, that no judgment should be taken against Layton, nor is it claimed that no defense was made because of such alleged agreement. 26 C. J. 1137, § 57; 95 Ark. 375; 74 Ark. 46; 71 Ark. 305; 31 Ark. 170; 30 Ark. 362; 19 Ark. 522; 8 Ark. 146. Layton knew before the judgment was rendered that Linton was insisting on a judgment against him. No sufficient showing made for vacation of judgment. C. & M. Digest, 6290, 6293; 139 Ark. 408; 120 Ark. 255; 138 Ark. 403; 102 Ark. 252; 104 Ark. 449 ; 94 Ark. 347; 90 Ark. 44; 84 Ark. 527; 83 Ark. 17; 50 Ark. 458. By signing the bond Layton became a party to the suit, and no further notice to him was necessary. C. & M; Digest, ^ 4854; 62 Ark. 469; O. & M. Digest, § 534, construed so in 37 Ark. 206; 29 Ark. 208. The cause was property transferred to equity, and, having jurisdiction, the chancery court rightfully retained it to determine all rights and administer com-píete relief. 34 Ark. 410; 29 Ark. 612; 99 Ark. 438. Appellant’s remedy was by appeal in the other case.
   Humphreys, J.

A suit in unlawful detainer was brought by W. A. Childs against I. N. Linton in the circuit court of Marion County. W. E. Layton was bondsman for W. A. Childs in said action. On motion of I. N. Linton, who had set up certain grounds of equitable relief against Childs and the Erie Ozark Mining Company, the circuit court made an order transferring the cause to the chancery court of said county, where the Erie Ozark Mining Company was made a party. The Erie Ozark Mining Company entered its appearance and filed an answer to the cross-complaint, and also a cross-complaint of its own, asking a cancellation of the original lease given to W. A. Childs, and subleases from him to I. N. Linton and others, upon the ground of forfeiture. W. A. Childs was represented by E. 0. Owens and S. W. Woods, regular practicing attorneys at the bar. S. W. Woods testified that he did not appear in the chancery court, after the transfer of the case, because he understood from Owens that I. N. Linton would look alone for relief to the Erie Ozark Mining Company. E. 0. Owens continued in the case after the transfer of the cause, and advised Childs, who had moved away, that it was necessary to take depositions to get ready for trial. Childs did not reply to his letters and thereby put Mm in position to proceed with the case, so he made a statement to that effect to the court, and was permitted to withdraw from the case. No pleadings were filed for Childs in the chancery court. The cause proceeded to a hearing upon issues jonied between I. N. Linton and the Erie Ozark Minina.’ Company, which resulted in a rendition of a decree in favor of the Erie Ozark Mining Company against W. A. Childs and I. N. Linton. I. N. Linton then asked and obtained a judgment .against W. A. Childs and his bondsman,. W-. E. Layton, for $1,000 in the unlawful detainer suit. An entry appears on the court’s docket to the effect that objections were made and exceptions saved to tlie entry of the judgment, and that an appeal was prayed therefrom to the Supreme Court. 'Before the judgment was entered, and during the progress of the case, J. C. Floyd, attorney for the Erie Ozark Mining Company, and Sama 'Williams, attorney for I. N. Linton, advised Layton that Linton was insisting on .a judgment against him, and that he had better give the matter some attention.

This suit for a permanent injunction against the enforcement of said $1,000 judgment was brought by W. E. Layton to a subsequent term of said court against I. N. Linton, execution creditor, and C. A. Willingham, sheriff of Marion County, upon the four following alleged grounds: First, that I. N. Linton agreed with W. E. Layton, or with W. A. Childs, or his attorney, E. 0. Owens, that no judgment would be taken against them, but that he would look alone to- the Erie Ozark Mining Company for redress; second, that the judgment rendered against W. E. Layton was without notice and void; third, that- the chancery court had no jurisdiction of the cause in which said $1,000 judgment was rendered; fourth, that the chancery court was without jurisdiction, after the equitable issues were eliminated, to render a judgment in a suit for unlawful detainer, which was purely legal in nature.

(1) E. O. Owens, attorney for Childs, testified that I. N. Linton stated to him, in front of the bank in Yell-ville, that he was not particularly after Mr. Layton, that he was after the Erie Ozark Mining Company. He admitted, however, that this statement did not influence him to withdraw from the case, and explained that he withdrew from the case because Childs would not write to him conoerning it, so that he could prepare for the trial.

Mr. Layton testified that, during the pendency of the suit, I. N. Linton came to the bank and told him that he had matters so arranged as to give him no trouble on the bond; that, in reliance upon the statement, he made no preparation for a defense and took no further interest in the ease. I. N. Linton testified that he did not make the statement attributed to him by W. E. Layton.

Mr. J. C. Floyd and Sam Williams both testified that they called Mr. Layton’s attention to the fact that I. N. Linton was insisting on a judgment against him and Childs.

The chancellor found there was no agreement, tacit or otherwise, between I. N. Linton and Childs or his attorney, or Layton, to the effect that he (Linton) would not seek redress or damages against Childs or his bondsman. Owens admits that he was not induced to withdraw from the case on account of the statement made by Linton. The statement attributed to Linton by Layton was vague. It was to the effect that he (Linton) had made arrangements whereby he would not bother him about the bond. Layton did not attempt to ascertain what arrangement had been made or to obtain a release from the bond on definite terms. Linton denied making the statement. In view of the conflict in the testimony upon this point, and of the warning given by J. C. Floyd and Sam Williams to Mr. Layton, we cannot say that the chancellor’s finding against an express or tacit agreement not to look to the bond, was against the clear preponderance of the evidence.

(2) The judgment is not void because rendered without notice. The bond was conditioned for the payment of all sums recovered by defendant in the action for any cause whatever. Sec. 4844, Crawford & Moses’ Digest. It is provided in ^ 4854 of Crawford & Moses’ Digest that in “all cases where judgment is rendered either against the plaintiff or defendant, for any amount of recovery, damages, or costs, judgment shall also be rendered against his sureties in the bond given under the provisions of this act.” In construing statutes covering attachment and supersedeas bonds containing, provisions, similar to the provision quoted above covering bonds in unlawful detainer suits, this coiirt ruled that a-surety became a party to the suit by signing the bond, and subject to a summary judgment without additional notice. Fletcher v. Menken, 37 Ark. 206; Morse Bros. Lbr. Co. v. F. Burkhart Mfg. Co., 155 Ark. 350.

, . (3). The point is made that the chancery court acquired no jurisdiction of this cause because the clerk of the circuit court of Marion County failed to make and transmit a certified transcript of the proceedings in said cause to the chancery court of said county. An order of transfer was made and entered of record by the circuit court. The original papers were transmitted to the chancery court, where the case was docketed. E. O. Owens, attorney for W. A. Childs, the plaintiff in the original suit and principal in the bond, appeared in the cause in the chancery court and obtained -permission to withdraw from the case on the ground that his client had refused to communicate with him. The record shows that; W. A. Childs and W. E. Layton objected to the rendition of the judgment against them in the chancery court, and prayed an appeal to the Supreme. Court. Having appeared in the cause in tbe chancery court, all irregularities in making the transfer of the cause were waived by them.

(4) The last insistence of appellant for reversal is that all equitable issues were eliminated from the case when the issues raised in the pleadings between the Erie Ozark Mining Company and Linton and Childs weré decided, and that the original suit in unlawful detainer should have been retransferred to the law court for trial. It is unnecessary to decide this question. Had a motion been made to retransfer the cause, and if proper to have done so, the failure would have constituted error for correction on appeal. This is a collateral attack, and is not a proceeding for the correction of mere errors in the rendition of the judgment’ Such matters aré not drawn in question in a collateral attack upon a judgment.

No error appearing, the decree is affirmed.


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    Van Houten Lumber Company v. Planters’ National Bank of Hughes.
    Opinion delivered June 18, 1923.
    1. Mechanics' lien — separate contracts — time for filing.— Where materials for the construction of certain bungalows, and for the construction of sidewalks thereto, were furnished under separate contracts, separate materialman’s liens should be filed within 90 days from the time the last material was furnished under each contract.
    2. Mechanics’ lien — time for filing. — The limitation for filing a lien for materials furnished begins on the date of the delivery of the last item or items upon the ground near the place where a building is to be constructed, and not on the date when the material is actually put into the building.
    3. Mechanics’ lien — defense—burden of proof. — After material is delivered upon the ground for the construction of a building, the burden rests upon the owner to show that it was not used in the construction of the building, in order to defeat a lien for the material thus furnished.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      C. W. Norton, B. E. Fuhr and J. M Futrell, for appellant.
    There was only one contract for furnishing material for the building of the bungalows and the sidewalks. Materials furnished within meaning of the law when actually used in the construction of the improvement. 84 Ark. 560; 133 Ark. 401. The evidence establishes that the one contract between the lumber company and Tucker included the houses and walks, that the last house was finished within less than 60 days of June 21, 1921 (C. & M. Digest, 6250-6252; 3 Cyc. 770c), the date the lumber company lien was filed. The decree should be reversed.

      Mann & Mann, for appellee.
    There were two separate contracts, one for the houses, the other for the walks, and the proof shows that appellant was not entitled to a lion except for the materials furnished for the walks, 56 Ark. 544; 107 Ark. 245. A lien must be filed for materials furnished under each contract -within the statutory period after it -was furnished. 27 Cyc. 144; Jones on Liens, 1432;' 18 R. C. L. 931; Jones on Liens, 1449. The date from ■which the limitation of the time of filing a mechanics’ lien is to be taken is the date on which the last article is furnished under the contract. 84 Ark. 560; 133 Ark. 401. The burden was on appellant to show it was entitled to a lien.

      G. W. Norton, R. E. Fuhr and J. M. Futrell, in reply.
    Appellant contends there was hut one contract, that the materials were furnished and the lien claim filed within'90 days from the time the houses were finished, or the last material was used in their construction. The authorities support this contention. 84 Ark. 560; 133 Ark. 401.
   Humphreys, J.

The priority between a mortgage and a materialman’s lien is involved on this appeal. T. H. Tucker owned a certain two-acre parcel of land In the town of Hughes, St. Francis County, Arkansas. He built four bungalows, including walks into the houses and sidewalks in front of them, during the year 1920. Tucker was adjudged a bankrupt in October, 1921, and his trustee in bankruptcy was made a party to the suit, but asserted no rigid 'in the property. Appellant filed its claim for a lien with the circuit clerk of St. Francis County on January 21, 1921, for material furnished in the construction of the bungalows and walks. On De'cember 23, 1920, appellee obtained a renewal note and mortgage upon said two-acre tract from T. H. Tucker, then a single man, .evidencing an indebtedness of $5,638.35, which Tucker owed it. The mortgage was placed of record. Subsequent to the execution of the mortgage T. H. Tucker was married, and his wife was made a party to this suit for the purpose of foreclosing her dower interest in said lands. All the material which entered hito the. construction of the houses proper was ■furnished and delivered upon the ground by appellant more than ninety clays before it filed its claim for a lien. The material which was furnished, by appellant for the construction of the whlks was delivered upon the ground within ninety clays before the claim for the lien was filed. Part of the material furnished for the construction of the bungalows was stored in one of the houses and actually used in completing one or two of them within ninety days from the date the claim for a lien was filed. The value of the material furnished to construct the walks was $193.15. The balance due for material used in the construction of the bungalows was $3,326.49. All the material furnished for the construction, of the bunga-galows was charged on the books of appellant to T. IT. Tucker. The material used to construct the walks was first charged to Robert Porter, who had been employed to supervise the construction of the bungalows on a cost plus ten per cent. plan. There is .a dispute in the testimony as to whether the contract for material between Tucker and appellant included material for the walks, and whether the contract with Robert Porter for supervision included the construction of the walks. The charge against Porter for the sidewalk material was transferred on appellant’s books to the account of T. IT. Tucker. Warren Moore, bookkeeper for T. H. Tucker, and P. M. Van Houten, general manager of appellant, explained that a mistake was made in charging the sidewalk material to Porter’s personal account, and that the transfer was made upon discovery by Van Houten that the material in question was used in the construction of Tucker’s walks. Early in January, 1920, Tucker decided to build four, and maybe six, bungalows, dependent upon the cost. If built, Porter was to receive as compensation ten per cent, commission on the cost of the labor and material for supervision. He estimated the cost of the bungalows, based upon prices for material furnished by Van Houten, who participated in the conferences leading up to the agreement to build the houses. On January 8, 1920, an estimate was placed by Tucker with appellant for all the material supposed to be necessary in the construction of the buildings, with the understanding that it should be ordered out as needed. This estimate contained no material for the construction of the sidewalks, and made no reference to the material for walks. Van Houten testified that the first definite statement concerning material for the walks occurred in April or May, when it was understood that appellant was to furnish cement and gravel for them at Memphis prices when they got ready for the material. Tucker testified that he intended from the beginning to build the walks, but was not certain whether the bungalows and walks were embraced in a single contract. He later testified that the walks were constructed under a separate contract with Porter, who was to build them for thirty cents a foot and furnish the material himself, and that part furnished by appellant was originally charged to him individually. Porter testified that the materials were embraced in a single contract, but' admitted that he settled with Tucker on a basis of ten per cent, on cost of houses for supervising their construction, and for the walks on a foot basis. He stated that, in the settlement for the walks on a foot basis, Tucker assumed the cost of material charged to him personally on the walks, and, when transferred and charged to Tucker, the amount thereof was deducted from his contract price per foot for building the walks. Warren Moore testified that the walks were to be constructed, at first, on a cost plus ten per .cent, .basis,' but during the summer the contract was changed, and that the walks were built under a different contract from that under which the bungalows were built; that along through the summer an arrangement was made by which Porter was to furnish the material and labor and build the walks for so much per foot.

The chancellor found, upon sharply conflicting testimony, that the bungalows and walks were constructed under different contracts, the bungalows on a basis of ten per cent, plus cost, and the walks on a foot basis; that material for the walks was not embraced in the first estimate, but was sold later directly to Porter, who built the walks for so much per foot, furnishing the material himself. We are unable to say, after carefully reading the testimony, that the finding of the chancellor is contrary to a clear preponderance of the testimony. The finding is strongly supported by the original estimate, the book entries as originally made, and the settlement between Tucker and Porter. Based upon this finding, a decree was rendered in favor of appellant, declaring its lien for material furnished to build the walks paramount to the mortgage lien of appellee, but that the mortgage lien was superior to appellant’s claim for the unpaid balance due for material furnished to construct the bungalows. Upon the theory that the materials furnished for the construction of the bungalows and sidewalks were furnished upon separate contracts, this decree was correct. This court said in the case of Kizer Lumber Co. v. Mosely, 56 Ark. 544, that, “if the materials were furnished under one contract, he should file the account within ninety days after the last was delivered, but if the materials were furnished under separate and distinct contracts, it should be filed under each contract within the time limit.” This rule was approved in the case of Marianna Hotel Co. v. Livermore Foundry & Machine Co., 107 Ark. 245. The materials for the construction of the bungalows was delivered upon the ground" more than ninety da3rs before the lien was filed, and the material for the walks within ninety days from the date the lien was filed.

Appellant makes the further contention that its lien is superior to the mortgage lien because a part of the material furnished on the ground to construct the bungalows was not used in completing one or two" of them until the latter part of November, within ninety days prior to filing the lien. In construing the statute this court said, in the case of Marianna Hotel Co. v. Liver more, supra: “The date from which the limitation of the time.of filing a mechanic’s lien is to he taken is the date on which the last article is furnished under the contract.” We cannot agree with the suggestion of learned counsel for appellant that material is not furnished within the meaning of the statute until it is actually put into the building. A delivery of the material upon the ground, near the place where a building is to be constructed is furnishing material within the meaning of the statute, provided it is subsequently used in completing the building. • The limitation for filing a lien begins on the date of delivery of the last item or items. The burden, of course, rests upon the owner, after delivery on the ground, to show that the material was not used in the construction of the building in order to defeat a lien for the- material thus furnished. Central Lumber Co. v. Land & Granite Co., 84 Ark. 560.

.No error appearing, the decree is affirmed.