text:
    Alsup v. State.
    Opinion delivered October 29, 1928.

      Sidney L. Graham and Cleveland Cabler, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant was convicted of operating an employment agency without procuring a license authorizing him so to do, in violation of act No. 4, Acts Special Session of 1923, page 3.

It is not contended that the act in question was passed as a revenue measure imposing an occupation tax. Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720. It is insisted that, while the act was passed in an attempt to exercise the State’s police power, it is in excess of that power and is violative of the 14th Amendment to the Federal 'Constitution. The essential provisions of the act are as follows:

Section 1 prohibits the operation or maintenance of a private employment agency for hire without first obtaining a license so to do from the Commissioner of Labor, for which an annual fee of $200 is to be paid. In addition, the Commissioner of Labor shall require of each applicant a bond in the sum of $1,000, conditioned that the licensee will not violate any of the duties, terms, conditions, provisions or requirements of the act, and authority is given to the Labor Commissioner to revoke the license for a violation of the provisions of the act.

•Section 2 provides that no labor agency shall be operated until a license has been first obtained, and that the application for the license shall state fully the condition, nature, terms and place of employment for which labor is solicited.

•Section 3 requires the agency to keep a register, in which shall be recorded the name and address of all applicants for positions, etc. The agency is prohibited from publishing any false or misleading information, and may not send any person to any place where a strike or other labor trouble exists without notifying the applicant of that fact. No agency is permitted to divide fees with an employer or an agent of an employer. The agency is prohibited from sending any female to any place kept for immoral purposes. The agency feo for filing or receiving applications or securing employment or help shall in no case exceed the sum of $2, and, if the applicant does not obtain employment within one month after registration, the agency shall, on demand, return the fee; provided, if the applicant is sent beyond the limits of the city in which the agency is located, and, without fault on his part, fails to secui'e employment, the agency shall return the fee and repay the applicant’s actual expenses incurred in going to and returning from the place to which .he was sent; or, if the employment lasts less than seven days, the agency is required to return the fee, or such portion thereof as the Labor Commissioner orders.

■Section 4 authorizes the Commissioner of Labor to maintain, in sections of the State where the convenience of the greater number of people may be served, a “free employment bureau.” The Commissioner of Labor is authorized to cooperate with the Federal Government in the establishment and maintenance of employment bureaus. The Commissioner of Labor is required to keep in touch with employers of labor, and may advertise in newspapers for such situations as they have applications to fill.

Section 5 defines a private employment agency and other terms used in the act.

Section 6 requires the Commissioner of Labor to make an itemized report of his disbursements under the act.

Section 7 provides that any person convicted of a violation of any of the provisions of the act shall be fined not less than $50 nor more than $250 for each offense,, or be imprisoned for ia period not exceeding thirty days.

Section 8 provides that, if any section or sections of the act shall be held invalid by the courts, “it shall not thereby be understood as affecting, and shall not affect, the other provisions of this act.”

It is unnecessary to determine how much, if any, of § 3 of the act is violative of the 'Constitution of this State, but it is certain that the part of that section which attempts to fix the fee which the agency may charge for service to the applicant is violative of the 14th Amendment to the Federal Constitution. In the recent case of Ribnik v. McBride, Commissioner of Labor of New Jersey, 277 U. S. 350, 48 S. Ct. 545, it was so held.

In the case cited the provisions of a similar law .of the State of New Jersey, which had been upheld by the Court of Errors and Appeals of that State, were declared to be violative of the 14th Amendment to the Federal Constitution as an arbitrary interference with the right to contract in respect of terms of private employment.

It is conceded by the Attorney G-eneral that the provisions of § 3 of the statute of this 'State relating to the remuneration of an employment agency must fail on account of the decision of the Supreme Court of the United States, supra, and we so hold.

But appellant was not charged with violating any provision of § 3 of the act, the charge against him being that he operated an employment agency without a license, and the .Supreme Court of the United States, in the case cited, held that the State has power to require a license to regulate the business of an employment agency, and we think that this exercise of the police power does not offend against any provision of our Constitution.

Our statute is a complete one without any of the provisions of § 3, and, as we have stated, § 8 of the act provides that, if any section of the act shall be held invalid, that fact shall not affect other provisions of the act. The validity of such provisions has been frequently recognized by this court. Nixon v. Allen, 150 Ark. 244, 234 S. W. 45; Marshall v. Holland, 168 Ark. 449, 270 S. W. 609.

As the act which appellant has violated is valid, although § 3 thereof may be invalid, in whole or in part, it follows that the judgment of the court below must be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Myers v. Shain Lumber Company.
    Opinion delivered October 29, 1928.

      Woods $ Greenhorn, for appellant.

      Shouse $ Rowland and Gaston & Hipps, for appellee.
   Humphreys, J.

The questions presented by this appeal are whether a -chattel mortgage executed by appellee, Shain Lumber Company, to W. J. Myers, appellant, on the 23d day of February, 1925, secured an existing indebtedness of $5,382.56, by said appellee to said appellant, for money advanced by appellant to it to operate its lumber business in Harrison, Arkansas. Between the dates of October 24, 1924, and February 23, 1925, appellee borrowed on open account from appellant $8,310.56 to operate its business, and paid appellant on said indebtedness during said period $2,927.99, leaving a balance due appellee on book account of $5,382.56. Appellee was uniable to pay the indebtedness, and needed additional money from time to time to operate its business. Appellant was willing, if secured, to make further advances to appellee for such purpose, provided appellant’s son was employed to manage the business, except the actual operation of the mill, which W. F. Shain, sole owner of the Shain Lumber Company, continued to do. Pursuant to such arrangement, the mortgage in question and a contract for the management of the business were executed. The mortgage and contract are as follows:

“Chattel Mortgage With Power oe Sale.

“This indenture, made this 23d day of February, 1925, between the Shain Lumber Company, owned by W. F. Shain, party of the first part, and W. J. Myers, party of the second part, witnesseth that, for and in consideration of the sum of $10,000, the receipt of which is hereby acknowledged, the party of the first part has bargained, sold, granted and conveyed and by these presents hereby bargains, sells and conveys to the party of the second part, executors, administrators and assigns, the following described property, to-wit: Now on lots 1, 3, 5, 7 and 8, in block 8, Fair Ground Addition to the town, now city, of Harrison, Arkansas. Said lands land findings being used by party of the first part to saw and manufacture lumber and saw materials and for the purpose of receiving lumber, lumber materials for manufacture and shipment. Said party of first part has on said lands 2 rip-saws, 2 bolting machines, 4 saws, 1 cut-off saw, 5-horse power motor electric, all belts, 1 gum-saw; materials about 10,000 feet of walnut and oak and linn timber, and all other tools, implements, lumber and property on said lands. Party of the first part is to operate said plant, to make new improvements, to add new machinery and new tools and new timber material, but all the aforesaid are to be included in this mortgage; and party of the second part may advance additional money, and all of the aforesaid property is hereby mortgaged to secure payment of same. Party of the first part places Charles P. Myers in charge as general manager, to protect interest of party of second part.

“To have and to hold the same unto the party of the second part, his executors, ¡administrators and assigns forever, conditioned, however, as follows: Whereas, the party of the first part is indebted to the party of the second part in the sum of $10,000, due one day after date, bearing 10 per cent, interest per annum from date until paid, evidenced by note of even date, due 1 day after date. In addition, if other materials, machinery are installed in said plant, same are included herein, and if more money is advanced it is also included, and on same terms, and Charles P. Myers is agent in charge for party of second part, and must O. K. all purchases and sales.

“Now, if the party of the first part shall well and truly pay to the party of the second part the sum hereinafter mentioned, and all other indebtedness which may then be due the party of the second part by the party of the first part, together with the cost of this trust, on or before the one day after date, 1925, then this conveyance shall be void; otherwise to remain in full force and effect. And in case default shall be made in the payment of said indebtedness, as herein set forth, or should the party of the first part, prior to said one day after date,. 1925, sell, ¡attempt to sell, ship, remove, or otherwise dispose of the property herein conveyed, or any part thereof, without the consent of the party of the second part in writing, then, in either event, the party, his agent or attorney or assigns, is hereby authorized to take charge of said property on demand, without process of law, and sell and dispose of same, or so much as will be necessary, at public sale, at south courthouse door in Harrison, Arkansas, for cash in hand, upon two weeks’ notice in some newspaper published in the county, or by written notices posted in five conspicuous places near the property, at which sale any of the parties hereto may purchase as other parties; and out of the proceeds of said sale the said party of the second part to retain the sum due him as herein set forth, and the cost of this trust and of said sale, rendering the surplus, if any, to the party of the first part, his executors, . administrators or assigns.

“Given under my hand and seal this 23d day of February, 1925.

“Shain Lumber Co.

“By "W. Shain, proprietor and manager.”

‘ ‘ Contract.

“Know all men by these presents that, under the name of Shain Lumber Company of Harrison, Arkansas, said Shain Lumber Company is owned exclusively and solely by W. F. Shain of Harrison, Arkansas, as the sole general manager of said lumber company; said Charles P. Myers is son and agent in charge for W. J. Myers, mortgagor. Said Myers is to receive one-half of the net profits from said company. In order to fully protect his interest, said lumber company agrees fpr him to pay all bills out of money belonging to said company, to do all the selling of said products and property of said lumber company, handle and control exclusively all moneys, raw and finished materials of same, to- sell all materials and property of said company, and Shain Lumber Company, for his said services, agrees and binds itself not to buy or sell except through him as its exclusive and sole agent in charge for his father. All shipments to be made by him, to him, and in his name, and through no one else. He is to keep all books, pay all hands, taxes, and for necessary repairs, and improvements and materials. Said Shain Lumber Company reserves the right to examine books, settlement sheets and correspondence, and to be consulted about improvements, investments, purchases and sales, and to have, at short intervals, settlements, but not to contract new debts until agent O. K.’s same. Said Myers is not to be responsible for payments for materials, wages, or any other expenses that he did not authorize in writing, and in no event for negligence or accidents. He is to be merely an employee and not in any sense a partner. Complete inventories, statements of accounts and settlements shall be made on January 1 of each year, or any other time said employer or employee shall demand same.

‘ ‘ Myers accepts above terms and employment. This contract to be placed in the Farmers’ & Merchants’ Bank of Harrison, Arkansas, in escrow, either party to have a copy.

“Shain Lumber Co.,

“W. F. Shain, employer.

“C. P. Myers, employee.”

“This February 23, 1925.”

After the execution of the mortgage and contract, and prior to the institution of this suit by appellee against appellant for an accounting, on the theory that they were partners, the business was continued under the management of Charles P. Myers, during which time appellant furnished appellee $17,108.12, upon which appellee paid appellant $17,169.25, which liquidated the principal advanced, with interest thereon, leaving unpaid the money loaned on book account by appellant to appellee up to February 23, 1925, the day the mortgage and contract were executed. ■

In the course of the trial of the cause appellant’s attorneys admitted that the note for $10,000 mentioned in the mortgage was never executed. At a later date in the trial they attempted to prove that the note was executed and lost, but the court refused to allow them to do so, because the trial had proceeded on the theory of an open account, and under that theory a master had been appointed to state an account, and, pursuant to the appointment, had filed a final report. At the time of the execution of the mortgage and contract the only indebtedness owed by appellee to appellant was the book account of $5,382.56.

The trial court found that appellee never executed a note for $10,000 to appellant on the 23d day of February, 1925, and adjudged that said mortgage did not secure the indebtedness due appellant by appellee at the time on account. He also adjudged that, because the mortgage became due one day after date, it did not secure advances made after the maturity of said mortgage.

Appellant contends that the trial court incorrectly interpreted the purpose and intent of the mortgage. It is unnecessary to determine the correctness of the construction placed upon the mortgage by the trial court, to the effect that it did not secure advances after the maturity of the mortgage, since all the advances made after maturity were paid during the operation of the business and before this suit was instituted. The payment of the advances eliminated that question.

We cannot agree with the trial court’s construction of the mortgage, that it was not intended to and did not secure the book account which appellee owed appellant at the time of the execution of the mortgage and contract. The mortgage recites that it was executed to secure a note of $10,000 of even date, which seenis not to have been executed, and does not refer specifically to the book account. Certainly the mortgage and contract were executed to secure an indebtedness. According to the interpretation of the trial court, it was executed without any purpose or intent to secure any indebtedness, its execution being an idle ceremony. The only existing indebtedness at the time was the book account. The defeasance clause in the mortgage indicates very clearly that the purpose of its execution was to secure an indebtedness then existing. There can be no question that the purpose and intent was to execute a note for $10,000 to secure an indebtedness for that amount. As the only indebtedness then existing was the book account, it is quite apparent that the note was intended to include that sum, and a reading of the mortgage, in connection with the contract providing for a continuation of the business, indicates very clearly that the $10,000 note which was to be executed should also embrace future advances. The mortgage provided that, during the continuation of the business, all machinery and equipment which should be purchased was to be included in the mortgage as security for the indebtedness.

Appellee cites and relies upon the case of First National Bank of Corning v. Corning Bank & Trust Company, 168 Ark. 17, 268 S. W. 606, as decisive of its contention that the book account was not sufficiently identified in the mortgage to be secured thereby. In the case cited the mortgage described an $80.02 note of even date therewith, and did not mention two notes executed prior thereto. The mortgage contained a defeasance clause which recited that, oh payment of the note, together with all other indebtedness which may be due, the mortgage should be void. The court ruled that the defeasance clause related to ¡and secured only indebtedness created by additional advances and not to the indebtedness evidenced by the prior notes. In the case cited the $80.02 note was actually executed and was of even date with the mortgage, and the prior notes were not mentioned. Future advances were mentioned. The distinction between that case and this is that no note was executed in the instant case. There was no note to be secured specifically mentioned as in the case cited. In the instant case an indebtedness was to be secured which was to be covered in a $10,000 note. The only indebtedness existing at the time was a book account, and necessarily wias the indebtedness which was to be covered by or embraced in the note. This court ruled in the case of Carnall v. Duval, 22 Ark. 136, that: “It is no objection to the validity of a mortgage, if given to secure an existing debt, that such debt is not evidenced by a note or bond, nor that a specified time is not limited for its becoming absolute, or for its foreclosure.”

Our interpretation of the mortgage, when read in connection with the contract, is that one of the intentions was to secure the only existing indebtedness between the parties at the time, and that all of the assets of appellee were pledged to secure said indebtedness.

On account of the error indicated the decree of the court dismissing appellant’s cross-complaint asking for a foreclosure of its mortgage will be reversed, and the cause is remanded with directions to the trial court to foreclose the mortgage for the payment of the indebtedness existing between the parties at the time said mortgage was executed, together with interest thereon.


text:
    Clark v. State.
    Opinion delivered October 29, 1928.

      J. O. A. Bush and Dexter Bush, for appellant.

      E. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Humphreys, J.

Appellants were indicted and convicted in the circuit court of Nevada County for manufacturing liquor, and, as a punishment therefor, were adjudged to serve a term of one year in the State Penitentiary, from which they have duly prosecuted an appeal to this court.

The only error assigned for a reversal of the judgment is that the court erred in refusing to give appellants’ requested instruction No. 1, which reads as follows:

“If you find from the evidence in this case that the defendants just happened upon this still, and stayed there for fifteen or twenty minutes, and did not act toward the manufacturing of the whiskey which was made there, then you will find them not guilty.”

The requested instruction singled out or emphasized the testimony of appellants, and, on that account, amounted to a request upon the weight of the evidence. It was not error to refuse the request. The court gave general instructions covering the law applicable to the facts in the case, which was all he was required to do. Smith v. State, 162 Ark. 458, 258 S. W. 349.

The general instructions given by the court were as follows:

“The defendants are on trial charged with the making or manufacturing, or being interested in making and manufacturing, alcoholic, vinous, malt, spirituous and fermented liquors. The .burden is on the State to prove the defendants’ guilt by the evidence beyond a reasonable doubt. If you entertain a reasonable doubt of the defendants’ gTiilt, it will be your duty to give them the benefit of the doubt, land acquit them. They are presumed to be innocent of the offense1 for which they are being tried. That presumption accompanies them, shields them and protects them against conviction until it is overcome by the evidence in the case, convincing you beyond a reasonable doubt of their guilt.

“If you find from the evidence in this case, beyond a reasonable doubt, that the defendants, in Nevada County, Arkansas, at any time within three years before this indictment was returned into court, were engaged in the manufacture of alcoholic, vinous, malt, spirituous or fermented liquors,' or if you find from the evidence, beyond a reasonable doubt, that they assisted in the manufacture of such liquors, it will be your duty to convict them and assess their punishment at imprisonment in the penitentiary for one year.

“Should you convict these defendants, the form of your verdict should 'be: ‘We, the jury, find the defendants guilty,’ and assess their punishment as I have indicated. 'Should you acquit them, the form of your verdict should be: ‘We, the jury, find the defendants not guilty.’ One of you sign the verdict as foreman.”

No error appearing, the judgment is affirmed.


text:
    Walker v. Eller.
    Opinion delivered October 29, 1928.

      Steel é Edwards and DuLaney & Steel, for appellant.

      Collins é Collins, Lake, Lake $ Carlton and E. F. Friedell, for appellee.
   Humphreys, J.

Appellants, except Penn Walker, are the only legal heirs of Lucy Walker, deceased, who died intestate on the 22d day of January, 1926, Penn Walker being her husband and the other appellants her children. Lucy Walker was a niece of John H. Hamilton, an aged .bachelor, who died on March 8, 1926, holding the legal title and residing upon the following real estate, to-wit: “The southwest quarter of the northeast quarter, part of the northeast quarter of southwest quarter, section 8, township 11 south, range 29: west half of the east half and the east half of the west half, section 17, township 11 south, range 29 west, containing in all 275 acres, more or less, all in Sevier County, Arkansas.” Appellees are the only other legal heirs of John H. Hamilton, deceased, and are either nieces and nephews or grandnieces and grandnephews.

The appellants were residing with and caring for John H. Hamilton at the time of his death, and continued to reside upon and operate the farm after his death, and are still residing thereon.

On the 16th day of August, 1926, appellees brought this suit against appellants in the chancery court of Sevier County, for partition of said lands and an accounting for rents and profits derived therefrom, alleging that they owned an undivided three-fourths interest and appellants an undivided one-fourth interest therein. Appellants filed a demurrer to the complaint, alleging, among other grounds, that the chancery court had no jurisdiction of the subject-matter contained in the complaint. No reason was assigned in the demurrer why said court was without jurisdiction. The. court overruled the demurrer, over appellants’ objection and exception.

Oto December 4, 1926, appellants filed an answer, reserving their exception to the overruling of their demurrer, denying the material allegations of the complaint, and a cross-complaint, alleging sole ownership of the lands under and by virtue of an executed oral contract whereby John H. Hamilton agreed with them, about the first of June, 1919, to convey them the land by deed or will, in consideration that they take care of him the rest of his life, by furnishing him with such moneys, clothes, food and home comforts as he needed, and pay the taxes and keep up the repairs on the land. They further alleged that, pursuant to the agreement, John H. Hamilton executed a will on the 10th day of June, 1919, in which, after making- specific legacies to all his other heirs, he devised the lands in question to Lucy Walker, the wife of Penn Walker and the mother of the other two appellants, which will was duly proved and probated. They further alleged that, in the performance of the contract on their part, they expended large sums for improvements, repairs, taxes, and in the care and support of John H. Hamilton for each year from the year 1919 to the year 1926, inclusive, for which amounts they prayed a lien upon the-lands in the event the court should find the contract and will ineffective to vest such an equitable title to the lands in them as would warrant the court in vesting the legal title thereto in them.

Appellees filed a reply to the cross-complaint, denying all the material allegations therein, and interposed the additional defenses of the three-year statute of limitations, and the statute of non-claims, and an offset of rents against the claim, and a prayer for a lien against the lands for improvements, repairs, taxes and the care and support of John H. Hamilton during the years 1919 to 1926, inclusive.

The cause was heard upon the pleadings and testimony, which resulted in the following- findings and decree by the court: That no oral contract as alleged was entered into between Walker and the testator, John H. Hamilton; that the legacy to Lucy Walker had lapsed, because she predeceased the testator by two months; but that said taxes paid and certain improvements made upon the real estate were relevant to the will, to-wit: Cost of tenant house, $200; cost of addition to dwelling house, $400; cost for drilling well, pump and equipment, $500; cost of shed to barn, $100; cost of repairs to hay bam, $75; cost of bridge built to pass from one side of the farm to the other, $100; amount paid for road improvement taxes, $591.73; expenses paid in the last illness and for funeral expenses of the deceased, John H. Hamilton, $495; cost of clearing- seven acres of land, $70; amounting in all to $2,531.73. That appellee should be allowed ian offset against said total amount for the rental value of the lands for the years 1926 and 1927, amounting to $800; and decreed a lien upon the land for balance due for said improvements made and taxes paid by Penn Walker; that appellees and appellants were owners and tenants in common of said land, and tnat a partition could be had when so desired by the parties. . Each party appealed from the findings and decree tn so far as same were adverse to them respectively.

The record reveals, according to the undisputed iacts, that John H. Hamilton, an aged bachelor, was the owner of a farm consisting of 275 acres, of the value of $14,000, in Sevier County. He was residing upon the farm alone in 1918, and, in order to be more comfortable, rented the farm to Penn Walker for the year 1918 for $400 and the payment of the taxes and upkeep or repairs of the place. Walker and his family, consisting of Lucy, his wife, and Louis and Edna, their two children, moved from where they were residing to the Hamilton farm, where they all resided as one family. In July, 1918, Penn Walker and John H. Hamilton entered into a written rental contract by the terms of which Walker was to take the place for a period of ten years, commencing in the year 1919, for which he was to pay an annual rental of $400, the taxes and the upkeep or repairs of the place, including ditches and fences. The rental contract was not acknowledged or placed on record at the time of its execution. The parties all com tinued to reside in the Hamilton home as one family until the death of Lucy Walker, January 22, 1926, and after her death they all remained there just as before until the death of John H. Hamilton, on the 8th day of March, 1926, and after his death Penn and his two children remained, and are still there. On the 10th day of June, 1919, Hamilton made a will, in which, after specific legacies to others, he devised the residue of his property, including said farm, to Lucy Walker, who was his niece. Four days thereafter, or on the 14th day of June, 1919, Hamilton and Walker appeared before George B. Milford, a notary public, and acknowledged tbe ten-year lease contract made in July, 1918, and on the 16th day of June, 1919, tbey filed tbe lease for record in'the office of tbe recorder of Sevier County. Penn Walker paid John H. Hamilton tbe rent for 1918, but never paid any stated amount of rent thereafter, but paid tbe taxes, kept up tbe repairs, and made some permanent improvements on tbe property, furbished Hamilton such money as be needed from time to time, and paid Hamilton’s doctor and hospital bills whenever he was sick. Tbe receipt for tbe taxes was taken in tbe name of John H. Hamilton for all, except a few acres, of tbe land during bis lifetime. Tbe total amount paid out by Penn Walker for improvements, taxes and tbe last illness and funeral expenses of John H. Hamilton amounted to $'2,531.73. Tbe parties to this suit and Penn Walker are tbe only heirs of John H. Hamilton, deceased.

According to tbe testimony introduced by appellants, which must be regarded as disputed on account of tbe interest of tbe witnesses testifying in tbe result, and on account of contradictory circumstances, an oral contract was entered into, about two weeks before the execution of tbe will, or before the first of June, 1919, between tbe Walkers and John H. Hamilton, whereby Hamilton obligated himself to convey, either by will or deed, tbe lands in question to tbe Walkers, in consideration that tbey would care for and support him in health and sickness during his lifetime, and that, pursuant to said agreement, the will was executed.

Appellants first contend for a reversal of tbe decree because tbe court overruled their demurrer to the jurisdiction of tbe court. Their demurrer did not state that tbey were in possession of tbe lands, claiming the legal title thereto, and that tbey were entitled to have their title determined in a court of law before an equity court could partition same. Even in their answer tbey only set up an equitable title by way of defense, dependent on an alleged executed oral contract.

A court of equity has jurisdiction to determine whether a party has an equitable title to land. A court of equity also has jurisdiction to partition lands among tenants in common, according to their several interests; so the court, under the allegations of the complaint, had .jurisdiction of the parties and subject-matter. The defects in the complaint pointed out by learned counsel in their brief should have been reached by a motion to make the complaint more definite and certain, and not by demurrer. The court therefore properly overruled the demurrer.

Appellants’ next contention for a reversal of the decree is that the finding of the trial court that the alleged oral contract was not entered into between the Walkers and John H. Hamilton is contrary to a preponderance of the testimony. It is true that appellants testified that a contract was entered into, and that the will was made pursuant thereto, 'but it will be observed that Hamilton devised the lands and personal property, except specific bequests, to Lucy Walker, and not to them all, or to Lucy and Penn Walker in accordance with the tenor and effect of the oral agreement. The ten-year lease, which was acknowledged and put on record after the will was executed, is contradictory of the oral contract testified to by appellants. In fact, it superseded the oral agreement, if such an agreement was ever made. The acknowledgment and recording of the lease was a recognition of John H. Hamilton’s title to the lands after the execution of the will. There is no inconsistency between the will and the ten-year lease. It is a perfectly consistent act for one to lease lands which he has devised by will to others. The will, however, was inconsistent with the alleged oral contract, because not made to both Penn and Lucy Walker, or to all the Walkers, and the oral contract was, if made, inconsistent with the ten-year lease and was displaced by it.

Again, it was necessary to establish the oral contract by clear, decisive and convincing testimony. With this rule in mind it cannot be said that the finding of the trial court, to the effect that no oral contract was made, is contrary to the weight of the evidence.

Appellees contend for a reversal of that part of the decree declaring a lien upon the land for repairs, improvements, taxes, etc. They contend the claims for these expenditures should have been presented against the estate of John H. Hamilton within the statutory period prescribed for presenting claims, and that the claims are barred by the three-year statute of limitations and the statute of non-claim.

Under the facts in this case their contention is without merit. According to the testimony of appellants, they paid the taxes and made permanent improvements upon the farm under the honest belief that they had acquired title thereto under an oral contract for the maintenance and support of John H. Hamilton, together with the will which he afterwards made to Lucy, in which he devised the lands to her. They perhaps would have succeeded in establishing their oral contract had the test been that they could establish it by the weight of the testimony instead of by the clear, decisive, and convincing rule of evidence. We think, under the circumstances of the case, it would be inequitable to allow appellees to ask a partition of the lands at the expiration of the ten-year lease without a lien being declared thereon for the amounts appellants expended under the honest belief that the lands belonged to them.

We think the wholesome rule, that one asking equity must do equity, is applicable to the facts in this ease.

No error appearing, the decree is affirmed on the direct and cross appeals.


author: Kirby, J.

text:
    Blankenship v. State.
    Opinion delivered October 29, 1928.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a conviction for having in possession a still.

The officers testified that they had the still under surveillance, being concealed near it, ¡and that appellant and his companion appeared about 7 o’clock, and moved some wood back and began to dip water out of the branch and pour it into the mash barrels. Two barrels of mash had been run and the mash in two more was ready to run, and the still was warm from the last run, which must have been made that .night. The boys were filling up the two barrels with more water. Appellant unscrewed the connection and let the refuse run out of the pot, and in carrying it away discovered the officers, and ran. The still was on his grandmother’s place, in the pasture, and he said that he had discovered it before, and that he was down there that morning putting the water in the mash to keep the cows from eating the shorts, under the instruction of his grandmother, who had lost a yearling from eating mash at a still. Said he did not own the still and the mash, and had no control over it, and ran away when he saw the officers because he was frightened.

He was found present at the still, which was yet warm from the last run made, and making- the necessary preparations for making another run, and ran away upon ascertaining that his presence was discovered. The testimony is sufficient to support the charge that appellant was in possession of the still, the proof of ownership not being necessary. Day v. State., 170 Ark. 790, 281 S. W. 11.

No error was assigned- as to the admission and exclusion of testimony, and the court correctly declared the law. The judgment must be affirmed, and it is so ordered.


author: Kirby, J.,

text:
    Ellis v. Citizens' State Bank.
    Opinion delivered October 29, 1928.

      Caraway, Baker & Qautney, for appellant.

      O. B[. Hurst, for appellee.
   Kirby, J.,

(after stating the facts). The court erred in directing' a verdict against appellant, as contended. The justice of the peace had rendered a judgment against the garnishee bank, directing the payment of money due from it to the drawer of the check into' the court for satisfaction of the amount due on the check. It also adjudged O. B. Gregg, the interpleader, was entitled, as against appellee herein, to payment of this money, which was ordered to be done.

The cashier of the garnishee bank testified that the money in satisfaction of the judgment against it as garnishee had been paid into court, upon the order of the justice, in payment of the amount the check was drawn for, and charged up to the account of Ellis, appellant.

.Appellant here did not complain of being aggrieved by the judgment of the justice 'of the peace, nor did he attempt to appeal therefrom. The justice decided, in effect, that he owed the amount of the check to the holder of it, and directed its payment by the garnishee, who did pay the money into the court in accordance with the order, and charged it against this appellant’s account.

The suit having been brought upon the check, purporting to have been executed by appellant, and the signature not having been denied under oath, the cause could have been proceeded with, whether the plaintiff appeared or not; the justice having heard it on the interplea and determined that Gregg, the interpleader, was entitled to the amount of the check, as against the plaintiff in the suit, and ordered same paid to him by the garnishee, he necessarily could not dismiss the suit for want of prosecution so as to prevent the plaintiff in such suit from taking an appeal therefrom without moving to set aside the judgment of the justice of the peace. Sections 6444, 6445, 6448, C. & M. Digest.

The circuit court did not err therefore in overruling the motion to dismiss the appeal, but erred in directing a verdict against the appellant, since no appeal bond had been given in the justice court, and the money due from appellant upon the check had been paid by the garnishee by the order of the court and charged against appellant’s account. The controversy in the circuit court was not therefore between the bank and the appellant, but between ft and the interpleader, who had won the suit in the court 'below. The court had the right to direct the verdict, but not against the appellant, whose liability upon the check had been discharged by payment by the garnishee of the amount to the interpleader, who was adjudged entitled to recover it.

The judgment will accordingly be reversed, and the cause as to appellant dismissed. It is so ordered.


author: Mehaffy, J.

text:
    Hot Springs Concrete Company v. Rosamond.
    Opinion delivered October 29, 1928.

      E. R. Parham, for appellant.
   Mehaffy, J.

This suit was begun in the Saline Circuit Court, plaintiff alleging that T. A. Rosamond and Taylor Rosamond, Jr., were indebted to him for material in the sum of $1,002.59, for which it asked judgment, and it also prayed judgment against the Continental Casualty Company for $209.08 and against the American Surety Company for $793.59, alleging that T. A. Rosamond and Taylor Rosamond had entered into a contract to do certain work, and that the two surety companies were sureties on his bonds. Plaintiff also filed allegations and interrogatories and bonds for garnishment, and writs of garnishment were issued and served on the garnishees, W. P. George, George Hughes, trustee, and Dr. J. B. Shaw.

The defendants, T. A. Rosamond and Taylor Rosamond, filed a forthcoming bond, and all of the defendants filed answer, denying the allegations of plaintiff’s complaint. Thereafter the defendants filed motion to dismiss for want of jurisdiction, alleging that the suit was based on an alleged breach of contract on the part of the defendants, T. A. Rosamond, and Taylor Rosamond, the said contract having been entered into by and between them and the United States of America, for certain improvements to be made on the United States Reservation at Hot Springs, Arkansas. That, under and pursuant to the provisions of § 6923 of the United ¡States Compiled Statutes, 1916 (40 U. S. C. A., § 270.), relating to the bonds of contractors who enter into a formal contract with the United States for the construction of any public building or the prosecution and completion of any public work, the contractors are required to execute a bond with good and sufficient sureties, with the additional obligation that such contractors shall promptly make payments to all persons supplying them with labor or material in the prosecution of the work-. That the said statute further provides that any person who has furnished labor or material used in the 'construction or repair of any public work, where payment has not been made, shall have the right to intervene and be made a party to any action instituted by the United States on the bond of the contractor. They allege that the act further provided that suit should be brought in the district court in which said contract was to be performed, irrespective of the amount in controversy, and not elsewhere.

Defendants alleged that suit had already been instituted in the United States District 'Court for the benefit of the Arkansas Foundry Company, and that said suit was then pending; that under the statute only one suit can be maintained on said bond, and this suit must be in the United States District Court. They therefore alleged that the plaintiff's had no right to bring this action, but that any suit growing out of the breach of said contract and said bond must be brought in the name of the United States, and that neither the Saline Chancery Court nor the Saline Circuit Court had any jurisdiction; that their only remedy was to file an intervention and be made a party in the United States District Court.

The plaintiffs moved to dismiss as to the Continental Casualty Company but not as to the American Surety Company. The court thereupon dismissed the cause as to all the defendants for want of jurisdiction, and from this judgment of the court dismissing the cause this appeal is prosecuted.

The only question for the consideration of this court is whether the court erred in dismissing as to all the defendants.

•No suit against the sureties on this bond could be brought in any court other than the United States District Court, and only one suit could be brought there; and, when it is begun, the statute provides that all other claimants may intervene. 40 U. S. Code Annotated, § 270; Miller v. American Bonding Co., 275 U. S. 304;. United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, 42 S. Ct. 98; Ill. Surety Co. v. United States, 240 U. S. 214, 36 S. Ct. 321; United States v. Congress Construction Co., 222 U. S. 199, 32 S. Ct. 44.

■Since no suit could be brought against the sureties on the bond in any court other than the United States District Court, the State court had no jurisdiction as to the surety companies in suit on the bond, and it was therefore the duty of the court to dismiss as to sureties on the bond. However, plaintiff’s complaint states a complete cause of action against the defendants T. A. Rosamond and Taylor Rosamond, without reference to the bond or the sureties. It alleges that these defendants are indebted to it in the sum of $1,002.59, and prays judgment against them for that amount. The court therefore erred in dismissing the canse as to the defendants T. .A. Rosamond and Taylor Rosamond.

Onr statute provides: ‘ ‘ The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in .any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” Section 1239, Crawford & Moses’ Digest.

Under this section the court could have struck out the name of the sureties, and this it should have done. One of the grounds of demurrer mentioned in our statute is “that the court has no jurisdiction of the person of the defendant or the subject of the action.” Section 1189, Crawford & Moses’ Digest.

“When objection is taken to the jurisdiction of the court as to some of the parties, and they are not indispensable parties, that is, their interests are severable, and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them. Though there may be misjoinder of parties defendant in equity, a defendant against whom there is a sufficient complaint cannot object that others who have no interest in the subject-matter of the suit are made defendants, unless it also appears that his interests are affected thereby.” 20 R. C. L. 709.

“Persons severally liable.on the same contract, including parties to bills of exchange, promissory notes, common orders and checks and sureties on the same, or separate instruments, may all, or any of them, or the representatives of such as may have died, be included in the same action, at the plaintiff’s option.” Crawford & Moses’ Digest, 1099.

A suit even on the bond in this case might be against the principals or the sureties, any one of them, or all of them, the obligation under our statute being joint and several; but, as we have said, the cause of action stated in the complaint against the defendants, the contractors, is not a suit on the bond, but is a suit that the plaintiff had a right to maintain without reference to the bond. A person might sell material to a contractor who was doing work under several contracts, some of which might be with the United States Government and others with private individuals. Material might be sold to him, relying on him alone, and without even knowing whether there was a bond of any kind given. The Federal statute referred to does not undertake to regulate suits between seller and purchaser, except to regulate suits brought against the sureties on the bond given in pursuance to such statute.

“Although a contrary rule prevails in some jurisdictions, the majority rule is that, in an action against several defendants on a joint and several contract, plaintiff may dismiss, discontinue, or enter a nolle prosequi against one or more of the defendants and proceed to judgment against the others; but the rule, it has been held, does not permit plaintiff to dismiss where the rights of the others would be so impaired that they would be placed in a worse condition than if defendant dismissed had been omitted in bringing the action.” 18 C. J. 1164.

“A suit against principal and surety may be dismissed as to the principal and continued as to the surety when they are joint makers and not indorsers, where the dismissal will not prejudice the surety, or where, under the statute, the principal is not a necessary party to the suit. * * * A suit also may be dismissed as to the surety and proceeded with as to the principal, if the surety is not a necessary or proper party to the suit, or where the surety is not served with process, or, under some statutes, where there cannot be a joint recovery against both.” 18 C. J. 1165-6.

In the instant case the contractor would be liable in any event if he purchased the material and did not pay’ for it. Therefore a dismissal‘as to the sureties would not prejudice or affect his interests.

The court should have dismissed as to the sureties and proceeded to trial as to the defendants T. A. Rosamond and Taylor Rosamond. For the error indica/ted the decree is reversed, and the cause remanded with directions to dismiss as to the sureties on the bond and to proceed with the trial of the case against the defendants and garnishees.


author: McHaney, J.

text:
    Dierks Lumber & Coal Company v. Tollett.
    Opinion delivered October 29, 1928.

      Collins & Collins and Lahe, Lahe $ Carlton, for appellant.

      Feasel é Steel, for appellee.
   McHaney, J.

Appellee sued appellant to recover damages for personal injuries received by him by reason of the alleged negligence of a fellow-servant in cutting a tree, which, it is alleged, fell on appellee and injured him. Appellant defended on the ground that it had been gmilty of no negligence; that appellant was not injured at the time and in the manner alleged; that he was guilty of contributory negligence; and that he assumed the risk. The trial resulted in a verdict and judgment against appellant for $5,500.

It is conceded that there is sufficient dispute in the testimony to take the case to the jury, and it will therefore not be necessary to set out the facts, the errors relied on being errors of law and not of fact.

. 1. The first error relied upon is covered in the fourth assignment, relating to the action of the.court in permitting the witness .Anderson Tackett to testify that he sent the slip furnished appellee by appellant’s examining physician, showing appellee’s condition to be good or average, to Mr. Hulse, who had charge of its employment department. Tackett was a witness for appellant, and had testified that, when appellee applied for employment to him, he being assistant woods foreman, with authority to employ labor, he gave him a slip and sent him to appellant’s examining physician to be examined to determine his physical condition. He was so examined, returned the slip to the witness, who testified that he turned it over to Mr. Hulse, the foreman in charge of the employment department. It is said that this testimony was prejudicial because it was an effort on the part of appellee to make it appear to the jury that appellant had the slips referred to in its possession, and was concealing them and refusing to produce them. We do not think this was the necessary effect, or that appellant was prejudiced thereby. The object of this testimony was to show appellee’s physical condition at the time he was employed by appellant. The production of these slips would, no doubt, have shown the physical condition of appellee at that time, as appellant’s own physician had made the examination. We therefore overrule this assignment of error.

2. The next error urged is covered by the fifth and eighth assignments, relating to the testimony of two witnesses to the effect that the appellee was a hardworking man up to the time of his alleged injury. This was competent testimony, as the matter in dispute was whether he had been injured at all, and his ability to perform labor prior to the alleged injury was competent to show his physical condition prior thereto.

3. The next error urged is covered by the sixth and seventh assignments. Appellee was permitted to testify, on direct examination, over the objections and exceptions of appellant, as follows: “He (Mr. Clawson, woods foreman for appellant) told me that if I did not sue them they would settle with me, and they kept on with me that way until early March, and I wrote them a letter and stated that if they did not settle within twenty days, I would sue them, and then Mr. Hnlse came to see me.” He was further permitted to testify, over appellant’s objection, that he received information from Mr. Hulse also that it would not be necessary for him to bring suit in this matter. It is said that this constituted error, for the reason that it permitted appellee to prove ¡an offer of compromise, in violation of §§ 1337 and 1338, C. & M. Digest, and also in violation of the rule announced in many decisions of this court. The alleged injury occurred on the 9th day of June, 1925, and this action was not commenced until July 30, 1927. This testimony was elicited by counsel for appellee in response to the following question: “Why is it you waited so long to bring a suit against the Dierks Lumber & Coal Company on account of your injury?” During the course of the examination and argument over the admissibility of this testimony, Mr. Steel, counsel for appellee, stated that it was offered for the purpose of explaining the action of appellee in waiting so long to bring his suit. And it was stated in oral argument, although not in the record, that it was brought out in response to statements of counsel for appellant in the opening statement of the case to the jury. However that may be, the majority of the court have reached the conclusion that it was competent for this purpose, not for the purpose of showing or proving an offer of compromise, but to explain his delay in bringing the action, and that, if counsel for appellant had requested the court to so limit the testimony by instructing the jury to consider it for this purpose only, it would have been the duty of the court to do so. Mr. Justice Smith and the writer do not agree to this view, as we think it was incompetent for any purpose, unless brought out in response to remarks of counsel in the opening statement, in which event the record should so show. The majority are of the opinion that the statement of counsel disclaiming any purpose in the offered testimony to show a proposition of compromise, but merely to explain the delay of appellee in bringing the action, amounted to limiting the testimony to that purpose, in the absence of a request of counsel for appellant for the court to so limit it.

4. It is next urged that the court erred in permitting appellee to testify in rebuttal contradictory to the witness Rabb, the foreman who discharged him, that, at the time he was discharged by Rabb, he told appellee that he was physically unable to work. This was offered in rebuttal, and was limited by the court as going to the impeachment of Rabb. It is now said that appellee was not asked the same questions as had been asked the witness Rabb, but the record discloses that counsel did not object to this testimony on that ground in the trial below, but only on the ground that Rabb was not a doctor, and that it had not been shown he had any knowledge of the fact about whicla' he was speaking. We think there was no error in this regard, since the court limited the consideration of this testimony by the jury to the impeachment of Rabb.

5. Objection is also made to the testimony of George Steel as to certain statements made to him by Df. R. L. Hopkins, contradictory to the testimony of Hopkins, on the ground that the identical questions asked Hopkins were not asked Steel. We have examined the record, and think that there was no error in this regard, as substantially the same questions were asked Dr. Hopkins on cross-examination as were asked Mr. Steel.

It is urged that the court committed reversible error in the giving of certain instructions asked by appellee and the refusal to give certain instructions requested by appellant. We have examined carefully all the instructions given by the court, as well as those refused, and find no error in either the giving or refusal to give said instructions.

We think it would serve no useful purpose to set these instructions out and comment upon them separately. Its objection to instruction No. 1, given at appellee’s request, was settled contrary to appellant’s contention in Arkansas General Utilities Co. v. Culbreath, 177 Ark. 359. Instruction No. 2, given at appellee’s request, correctly stated the law under the circumstances in this case. Appellee’s instruction No. 3 is as follows:

“If you find for the plaintiff, you will assess his damages at such a sum as, in your judgment, will compensate him for the bodily injury sustained, if any, the physical and mental anguish suffered and endured by him in the past, if any, or that which you find he will endure in the future, if any, by reason of said injury; for loss of time, if any; and for pecuniary loss from his diminished capacity for earning money in the future, in any; and from these elements, if shown by the evidence, assess his damages as, in your opinion, will compensate him for the injuries received, unless you further find he was guilty of contributory negligence himself.”

It is contended that this instruction is erroneous in that it failed to limit appellee’s right to recover to the present value of his decreased earning capacity, and pain and suffering in the future. We do not think the instruction is open to this objection, for they were plainly limited in the instruction to the matter of compensating him for the injury sustained, the word ‘ ‘ compensate” having been used twice in said instruction. Moreover, under the undisputed proof in the case, the jury has not returned a verdict in excess of the present value of the damages he has sustained by reason of his decreased earning capacity, without regard to pain and suffering, and the court’s failure to so limit the instruction could not therefore be prejudicial.

There was no error in the refusal of the court to give appellant’s requested instruction No. 2, as the latter part of it is argumentative and unduly stresses certain negative testimony in the record, to the effect that appellee’s injuries were the result of an accident in early life, and the first and only correct part of the instruction was covered by other instructions given by the court.

No error appearing, the judgment is affirmed.


text:
    Mutual Relief Associaton v. Poindexter.
    Opinion delivered October 29, 1928.

      John P. Roberts, for appellant.

      Evans Evans, for appellee.
   McHaney, J.

Appellee brought this action against appellants, Mutual Relief Association and John P. Roberts, W. T. Roberts and C. H. Williams, its bondsmen, and the Interstate Protective Association, F. E. Schooley, E. E. Randall and L. T. Little, its bondsmen, to recover a maximum amount of $500 on a life insurance policy issued by the Mutual Relief Association on the life of John H. Poindexter, in which the appellee was named as the beneficiary.

The policy was issued on the 4th day of March, 1921. On the 14th day of May, 1926, the appellant, Interstate Protective Association, acquired all the assets and property of the Mutual Relief Association, and assumed all o.f its liabilities. Thereafter John H. Poindexter, or the appellee for him, paid all assessments which became due under this policy to the Interstate Protective Association until the time of his death, which occurred in March, 1927. The policy provided that the death benefits named in the policy were payable out of any sum or sums that might be realized from an assessment of the members of the company or circle to which the deceased belonged, and provided further, “that the liability of the Mutual Relief Association hereunder shall in no event exceed the amount produced by one assessment on the members of the circle in which said member may be placed, less the cost of collecting said assessment.”

.'Both the Mutual iand Interstate companies executed and filed a bond with the Insurance Commissioner, “conditioned for the prompt payment of all assessments to the parties or beneficiaries entitled thereto, and the maters of said bond shall be liable thereon for any violation of the conditions thereof, or any loss which may accrue to the policyholders or beneficiaries of such company.”

The testimony of the secretary of the Interstate Association, which is undisputed in the record, was to the effect that a double assessment was levied after the death of John H. Poindexter, covering two deaths, for the month of April, and that the total amount received was $116.49, which, after deducting the cost of collection, $23.35, left $93.14, or $46.57 for this death claim. The secretary had the records showing his collections for April, with every man’s name thereon from whom money was received. This was all the evidence touching upon the amount realized from the assessment.

Appellant, Mutual Relief Association, and its bondsmen, and the bondsmen of the Interstate Protective Association, requested an instructed verdict in their favor, which the court refused, over their exceptions.

Over the objections land exceptions of appellants, the court refused to give the following instruction requested by them: “If you find that the plaintiff had paid all the assessments due, then you are instructed to find for the plaintiff the amount of one assessment of the members in the group or circle to which the plaintiff belongs, less the cost of collection, which in this case is shown to be the sum of $46.57.”

There was a verdict and judgment for appellee against all the ¡appellants for $500, 12 per cent, penalty, and an attorney’s fee of $100.

We are of the opinion that the court erred in failing to direct a verdict in favor of the Mutual Relief Association and its bondsmen, for the reason that all of its property and assets of every kind and character, including its records, papers and documents, had been taken over and all of its liabilities assumed by the appellant, Interstate Protective Association, some ten or eleven months prior to the death of the insured, and the insured and his beneficiary, the appellee, had thereafter paid all dues and assessments under said policy of insurance to the Interstate Protective Association. The merger or consolidation of these two companies was authorized by act 139 of the Acts of 1925, and the agreement of consolidation or merger was approved by both companies and filed with and approved by the Insurance Department of the State of Arkansas. By thereafter paying assessments to the Interstate Protective Association, appellee must be held to have consented to the merger or consolidation, and therefore he must look to it for whatever rights he has under the policy sued upon. There was therefore no liability on this policy against the Mutual Relief Association or its bondsmen, and the judgment as to them will be reversed and dismissed.

The next question that arises is, what is the liability of the appellant, Interstate Protective Association? By the terms of the policy in question, all liability thereunder which it ¡assumed by virtue of the merger contract provides, as heretofore set out, that its liability in no event shall exceed the amount produced by one assessment on the members of the circle or group in which the member is placed, less the cost of collecting same. And, as heretofore stated, the undisputed proof in this record is that only $46.57 net was realized by one assessment, and we think that snm to'be the limit of the liability of the appellant, Interstate Protective Association, thereon. This appellant had the books showing the collection present, and he was cross-examined thereon by appellee, and it showed on the assessment made in April, after the insured’s death in March, every man’s name from whom any money was received.

This case in this respect differs from Mutual Relief Association v. Weatherly, 172 Ark. 991, 291 S. W. 74. The court there held again that the provisions in policies of insurance or certificates of this kind to the effect that the company will pay a certain amount upon condition that one assessment on the members of a circle or group in which the member is placed will produce such an amount, less the cost of collection, ¡are valid and binding; that the burden of proof is on the company or association to show the amount produced by such assessment; and in that case it was held that the company did not meet the burden thus placed upon it. But here, in the case at bar, the secretary of the association testified positively from the books of the association to the amount realized on one assessment. See also the recent case of Young v. Farmers’ Mutual Life Insurance Co., 175 Ark. 1045, 1 S. W. (2d) 74.

The judgment against the Interstate Protective Association will therefore be modified by reducing the recovery to $46.57, with interest iand costs, but without any penalty or attorney’s fee, as it is well settled that no penalty or attorney’s fee can be collected where plaintiff does not recover the amount sued for — the sum demanded. American Alliance Ins. Co. v. Paul, 173 Ark. 960, 294 S. W. 58; Pacific Life Insurance Co. v. Carter, 92 Ark. 378, 124 S. W. 764.


text:
    Hirsch v. Cadrin & Staten.
    Opinion delivered October 29, 1928.

      Saxon, Wade & Warren, for appellant.

      Eugene II. Murphy and Frcmcis T. Murphy, for appellee.
   McHaney, J.

Appellant, being the owner of a 20-

acre lease in Ouachita County, permitting him to salvage waste oil and to operate a pick-up station for said purpose, and also the owner of certain personal property thereon, entered into a written contract of sale thereof with appellees, Oadrin and Staten, under date of July 12,1926, the pertinent parts of which are as follows:

“Whereas, the undersigned, Sylvain Hirsch, is now the owner of the above described lease, together with all rights, personal property, consisting of the following: One boiler, number..............................; one 10x12 National Mud Hog pump; one 6x6 pump; 500 feet of 4-inch pipe, unions, nipples; 2,500 feet of 2-inch pipe, unions and nipples; 150 feet of 114-inch pipe, together with unions and nipples; two oil-field shacks; 85 metal barrels; one icebox; three tables; three beds and bedding; cooking utensils; one set of glasses; 4 wooden dams; and all other personal property now located on the above described premises used in the operation of the pick-up station. Now therefore, for and in consideration of the sum of $15,000, paid and to be paid as follows: Two thousand dollars payable out of one-half of the seven-eighths of the first oil saved ¡and marketed from said premises; the balance $13,000 payable out of one-fourth of the first oil saved and marketed from said premises; I, Sylvain Hirsch, do hereby assign, set over and deliver unto J. L. Cadrin and J. B. Staten, and unto their successors and assigns, all my right, title and interest in and to the aforesaid lease, and in so far as it affects the south half of the southeast quarter of the northeast quarter of section 28, township 15 south and range 15 west, Ouachita County, Arkansas. A vendor’s lien is expressly retained on said leasehold interest until this purchase money is paid in full, and the title to the aforesaid personal property is expressly retained in Sylvain Hirsch until the aforesaid purchase money is paid in full.

“To have and to hold unto the said Cadrin and Staten, and unto their heirs and assigns and successors, subject to the conditions herein expressed. All conditions and covenants herein shall be binding on all assignees and grantees. It is hereby agreed that the grantees shall have thirty days in which to start operation, and that the amount due hereunder shall be paid within a reasonable time.

“Executed July 12, 1926.”

A short time thereafter, Cadrin & Staten assigned a one-third interest in this lease to appellee Alice Cordell. Appellees operated s:aid pick-up station on said lease for a period of time, and salvaged, treated and sold to the Penn-Liberty Oil Company 1,455.57 barrels of oil of the net value, after deducting the severance tax and royalty, of $1,179.69, all of which was paid to C'adrin & Staten, at the direction of appellant. This was all the oil accounted for, although a very large quantity of waste oil had been captured and impounded in a lake covering about 1,000 acres on which the Hirsch lease bordered at the upper end. The upper end of the lease extended into the lake about 150 feet, and about '2 or 3 feet at the lower end. Appellees operated this pick-up station for nearly a year, and were unable to succeed in picking up much of the oil in the lake. They spent about $4,300 of their own funds in attempting to do so, without success. Suit was brought by appellant to enforce a vendor’s lien to collect the $15,000 mentioned in the contract, and the trial court dismissed appellant’s complaint for want of equity.

The chancellor, no doubt, had in mind the rule announced in the recent decision of this court in Gilbert v. Patterson, 174 Ark. 61, 295 S. W. 386, where one Haskell had taken over the oil lease holdings of the Columbia Oil & Has Company, and agreed to pay it therefor “the sum of $60,000 out of one-third of the first oil accruing to said Haskell from said lease.” Haskell assigned said lease to other parties, and the question was whether the $60,000 was payable in any event, or only if oil was produced in sufficient quantities to pay said amount “out of one-third of the first oil accruing to said Haskell” therefrom. This court held that there was no obligation to pay except out of the oil, and, no oil having been produced, there was no liability. We are unable to distinguish this case from that. Here the contract provided that Cadrin & Staten would pay “two thousand dollars, payable out of one-half of the seven-eighths of the first oil saved and marketed from said premises; the balance, $13,000, payable out of one-fourth of the first oil saved and marketed from said premises. ’ ’ They only succeeded in saving and marketing the quantity of oil of the value heretofore stated, appellant’s share of which was released to appellees to further improve ‘the property. We therefore hold that this case is ruled by that.

For a second ground of reversal, appellant says appellees were guilty of fraud in that they acquired a lease lower down, on the same stream, operated a pick-up station thereon, and fraudulently permitted appellant’s oil to escape and be picked up in the lower station. We have examined the evidence in this regard carefully, and have reached the conclusion that the decree is not against the clear preponderance of the evidence. Cadrin testified that the lower lease and station belonged to Bob Staten, not the appellee, J. B. Staten, and that neither of the appellees had any interest in it. The evidence is also in conflict that the oil salvaged in the -Bob Staten lease, or Reynolds lease, as it is referred to, was oil that came over appellant’s lease.

We find no error, and the decree is affirmed.


author: Hart, C. J.

text:
    Roberts v. State.
    Opinion delivered November 5, 1928.

      W. S. Atlcins and Shaver, Shaver S Williams, for appellant.

      H. W. Applegate, Attorney General, and Effie Combs, Assistant, for appellee.
   Hart, C. J.

Dan Roberts prosecutes this appeal to reverse a judgment of conviction against him for the crime of burglary and of grand larceny.

The first assignment of error is that the evidence is not legally sufficient to warrant the verdict.

The record shows that on Friday night, December 16, 1927, the mercantile establishment of the Dover Mercantile Company, at Hatfield, Polk County, Arkansas, was broken into and merchandise of the invoice price of something over $600 was taken from it. Mark Dover was the manager of the store, and the burglary was reported to him about four o’clock in the morning. Dover immediately went to the store, and ascertained that nineteen suits of clothing and nine overcoats, which were on hangers in the store, had been taken therefrom. A small amount of cash was taken from the register, and some Ingersoll watches. One of the Ingersoll watches had a mainspring broken and two dents in the case. The clothing was worth about $600. About 300 yards from the store, Dover and others found where an automobile with two Fisk casings on it had been backed up to the side of the road. There was frost on the ground, and the print of the tires was fairly “plain. The casings were 29 by 45. A short distance ¡away, on the side of the road, from where the car had been backed up, Dover found nineteen of the coat hangers which had .been taken from the store. He also found a bottle with four figures on it, which smelled like it had had whiskey in it. He carried the bottle and hangers back to the store, and then started to follow the tracks of the automobile. He first went to DeQueen, and then to Lockesburg and to Nashville. He returned home from Nashville that same day, and received a telephone call from the town of Ben Lomond, in Sevier County, that they had the parties who had broken into his store. He went to Ben Lomond the next morning, and found nineteen suits and nine overcoats in the possession of the constable, which he identified as the clothing which had been taken from his store. He identified them by the manufacturer’s mark and by the store mark. From there, in company with the sheriff, he went to Fulton, in Hempstead County, and then on to Hope. When they got to Hope they found out that the parties who were suspected of burglarizing his store were in jail at Washington. They then went to Washington, and the sheriff took possession of Dan Roberts, D. L. Griffin and Roy Edwards, who were charged with burglary and larceny. Warrants had been issued for all three of these persons.- The jailer delivered to Dover an Ingersoll watch, which the latter identified by means of two dents and a broken spring, as being- a watch which had been taken from his store on the nig'ht of the burglary. There was also turned over to him a bottle containing whiskey which was of the same kind and appearance as the one found by him with the coat-hangers near the store.

Other evidence for the State tends to show that, on the morning after the robbery, Dan Roberts and two other persons riding in a 'Chrysler No. 50 sedan oar were going towards the river near Ben Lomond. The constable of that township was flagging cars, because the bridge across the river was burned, and travelers would have to make a detour to Fulton and cross the river there. He recognized Dan Roberts ¡as one of the men in a car which failed to stop when flagged. The car, instead of stopping, went on to the river. It came back, and went on down the road towards Fulton. The car then went off the side of the road, and was ditched. A farmer living near the place where the oar was wrecked was employed by the defendant to help pull the car out of the ditch. The car then proceeded on its way towards Fulton. The constable was informed of the wreck, and thinking that the car might have contained whiskey, went down to the scene of the accident to investigate. He fonnd tracks leading from where the oar had been wrecked across a field into the timber. He followed the tracks, and found the clothing which was later identified by Mark Dover as being the clothing which had been taken from his store on the night before it was found. The constable and mayor of Fulton then followed the car tracks to the river, and found a car with the defendant and two other persons in it, waiting to be carried across the river. The defendant was on the back seat, and pretended to be asleep. After the defendant and his companions were arrested they were searched, and two watches were taken from the person of the defendant. One of them was an Ingersoll watch, and the other was one of more value. A bottle of whiskey was also taken from a handbag of the defendant, which had four figures on the bottom of it. The defendant and his companions were first carried to Hope, and then to Washington, where they were confined in the jail until the arrival of Mark Dover and the sheriff of Polk County, when they were' turned over to said sheriff. The defendant land his companions were riding in a car which had two tires which made tracks that were like the tire tracks found by Dover not far from his store, the morning after the burglary. The clothing was found the morning after the burglary, and, although there was a heavy frost on the ground where it was found, there was no frost on the clothing.

The testimony was legally sufficient to warrant the jury in returning a verdict of guilty. The coat-hangers were found about 300 yards from the store, near the side of the road. A car with two Fisk casings had been 'backed up at that place. The defendant and his companions, when arrested, were in a car having two tires of the same description. After they started down the road from Hatfield towards Fulton, their car was wrecked, and the defendant hired a farmer to pull them out of the ditch. The officers who went to the place where the car was turned over, found tracks leading from there to the woods near by, and there found hidden the clothing identified later by Dover as that taken from his store on the night previous to which it was found. There was no frost on the clothing, but there was a heavy frost on the ground where it lay. The jury might have inferred from this that the clothing had been carried from the car when it wias wrecked, and hidden in the woods. It might have inferred that the defendant was guilty, because he was in possession of the car and therefore in possession of the clothing. It would not make any difference that two other persons were also present aiding' and abetting him. He would be equally guilty as if he had ¡acted by himself in the matter. Later on, on the same morning, the defendant and his two companions were arrested, and an Ingersoll watch was taken from the person of the defendant. The accused parties were then confined in the jail.at Washington, and were later turned over to the sheriff of Polk County as persons charged with burglarizing the store of the Dover Mercantile Company at Hatfield, two nights before. At the same time the jailer turned over an Ingersoll watch to Dover. The latter identified this watch by some marks on it as one of the watches taken from the store on the night of the burglary. There was some other proof tending to connect the defendant with the burglary and larceny. The undisputed evidence shows that the store was broken into, and about $600 worth of clothing taken from it. The fact that the clothing was found on the same morning in the woods, and that there were tracks leading to the place of hiding from the place where ¡a oar in the possession of the defendant had been ditched, tended to show that he was connected with the 'burglary and larceny. The jury might have inferred that he was in possession of the stolen goods, and, from the other attendant circumstances, might have found that he was one of the parties who had burglarized the store and had taken the clothing and other articles of merchandise from it.' Hence we hold that the evidence was legally sufficient to warrant the verdict.

The next assignment of error is that the judgment should be reversed because the court allowed Mark Dover to testify that the Ingersoll watch which was delivered to him by the jailer in Washington was one of the watches which was taken from the store when it was burglarized. It was insisted that the evidence is improper, because there was no testimony to show that the Ingersoll watch which the jailer delivered to Dover was the watch taken from the person of the defendant. Reliance is placed by counsel on the case of Oliver v. State, 120 Ark. 188, 179 S. W. 366. In that case it was held that, in a criminal charge for burglary, it was error to admit in evidence a knife alleged to have been stolen by the defendant, when it was not identified by any witness. In that case, however, the knife in question was not identified as one of those taken from the store when it was burglarized. The court said that it might have been a new and unused knife, and that the jury might have improperly inferred from that that it was a knife stolen when the store was burglarized. Mark Dover positively identified the watch which was delivered to Mm by the jailer at Washing-ton as one of the watches which had been taken from his store when it was burglarized. He knew the watch by some marks on the outside of the case and from a broken spring. The defendant was traced in a car all the way from the scene of the burglary. The clothes which had been taken from the store were found near were the car had been wrecked, and this tended to show that they were in the defendant’s possession. The defendant then proceeded from the place where his car had been wrecked to Fulton, and was arrested there. An Ingersoll watch was found on him there. He was lodged in the jail at Washing-ton soon after Ms arrest. It is true that the watch which the jailer delivered to Dover, when he and the sheriff of Polk County came to carry the defendant and his compamons back to said county, was not identified by the jailer as the one taken from the person of the defendant when arrested; but, when Dover identified it positively as a watch which had been taken from his store on the night of the burglary, this, considered in connection with the fact that the defendant was traced from the scene of the burglary until he was delivered to the jailer at Washington, and that an Ingersoll watch was taken from him when he was arrested, warranted the jury in finding that the watch which the jailer delivered to Dover was the one which had been taken from the person of the defendant when he was arrested.

The next assignment of error is that it was not proper for the court to have given instruction No. 8, which reads as follows:

“You are instructed that the possession of property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration under all the circumstances in the case, to be weighed as tending to show the guilt of the one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it be not rebutted.”

It is contended that this instruction was erroneous because there was no evidence in the case tending to show that the watch which the jailer delivered to Mark Dover and which was identified by Dover as being one of the watches taken from his store on the night of the burglary, was the watch which was taken from the person of the defendant. We have already stated the circumstances which tend to show that the jury might have legally inferred that the watch was the same one and that it was a part of the stolen property in the possession of the defendant.

The fact that the clothes were so recently nidden tended to show that they had been taken from the car of the defendant and that he was still in possession of them. Having hidden the merchandise, the jury might have found that it was still in his possession. There was nothing in its appearance to indicate that he had intended to throw it away. It was piled np and hidden, and this indicated that the defendant was still in possession of them. (Besides this, the defendant asked for a similar instruction, and the court gave it.

The defendant did not make any specific objection to instruction No. 8, and we can only pass on general objections. Keirsey v. State, 131 Ark. 487, 199 S. W. 532.

The next assignment of error is that the court erred in not excluding the testimony regarding the bottles of whiskey. We do not agree with counsel in this contention. A bottle of whiskey was taken from a •grip belonging to the defendant when he was arrested, and a similar bottle of' whiskey was found with the coat-hangers near the store, soon after the burglary was discovered. This testimony was competent to be considered by the jury for what it was worth in identifying the man who had deposited the coat-hangers by the side of the road, and thus indicating that he was one of the parties who had broken into the store and taken the clothing from it.

We find no reversible error in the record, and the judgment will be affirmed.


author: Hart, C. J.,

text:
    Morehart v. Mabelvale Road Improvement District No. 29.
    Opinion delivered November 5, 1928.

      A. L. Rotenberry, for appellant.

      Wallace Townsend, for appellee.
   Hart, C. J.,

(after stating the facts). The road improvement district in question was organized under the provisions of act 126 of Acts of 1923. General Acts of 1923, p. 84. No complaint is made that the improvement district, was not legally formed under the provisions of the act or that the commissioners are not carrying on the construction of the improvement in the manner provided by the act.

The sole ground of attack is that the act under which the improvement district is formed is unconstitutional. The act under consideration has been upheld in the following cases: Moyer v. Altheimer, 168 Ark. 271, 270 S. W. 91; Newton v. Altheimer, 170 Ark. 376, 280 S. W. 641; and Reed v. Paving District No. 21 of Jefferson County, 171 Ark. 710, 286 S. W. 829.

Counsel for appellants earnestly insist, however, that in none of these cases was the question of the constitutionality of the act directly and expressly discussed and decided. We cannot agree with counsel in this contention. In the case of Newton v. Altheimer, supra, there was a dissenting’ opinion, and, when we consider the majority opinion and minority opinion together, it is plain that every contention made by counsel for appellants in this case with regard to the constitutionality of the act was thoroughly discussed, and decided adversely to the present contention. In the case of Reed v. Paving District No. 21, supra, it was expressly stated by a majority of the court that the act now under consideration, authorizing county courts to create suburban improvement districts upon petition of a majority of property owners in the territory adjacent to the proposed improvement, was not unconstitutional as invading the jurisdiction of the county court. The reason given was that the county court itself in reality creates the district, at the will of a majority of the landowners, by affirmative action in the matter, and that it would refuse to create a district if the road to be improved was not already a public highway. The court, in express terms, said that the constitutionality of the act had been passed on in the case of Newton v. Altheimer, 170 Ark. 367, 280 S. W. 641. No useful purpose could be served by taking up the matter and considering it again, for the court has already passed upon it three times.

Again, it is insisted that the act is unconstitutional because, under its terms, the commissioners may continue in office after the road has been completed. This has been expressly decided contrary to the present contention of appellants, as is very clear when we consider the opinions and dissenting opinions in the following cases: Easley v. Patterson, 142 Ark. 52, 218 S. W. 381; and Dickerson v. Reeder, 143 Ark. 228, 220 S. W. 32. Numerous other later decisions might be cited showing that the majority of the court held to its original view, and no useful purpose would be served by discussing this subject again.

It is also insisted that the act is unconstitutional because, under § 5, the assessors are given the power, in making the assessment of benefits, to assess damages that will accrue to any landowner by reason of the proposed improvement, including all injury to lands taken or damaged. This point has also been decided against appellant. Dickerson v. Tri-County Drainage District, 138 Ark. 471, 212 S. W. 334, and later decisions of this court.

Finally, it is insisted that the act is unconstitutional because it was amended by act 183 of the Acts of 1927, so as to provide that a district may be formed under act No. 126, embracing lands in two or more counties. Acts of 1927, p. 636. We do not consider or decide this point, for two reasons. In the first place, if we should decide that the amendment by the Legislature of 1927 to the original act passed by the Legislature in 1923 was unconstitutional, the amendment would be just as though it had not been passed, and the original act of 1923 would be left in force and unimpaired. State v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S. W. (2d) 340. In the next place, the amendment in question could be stricken out without affecting the validity of the rest of the act. If the amendment was stricken out, there would still be a complete, workable act without it. Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707; and Snetzer v. Gregg, 129 Ark. 542, 196 S. W. 925, L. R. A. 1917F, 999.

The decree will be affirmed.


text:
    Taylor v. McKennon.
    Opinion delivered November 5, 1928.

      John Baxter, for appellant.

      Williamson <& Williamson, for appellee.
   Hart, C. J.,

(after stating the facts). The sole ground relied upon by appellant for a reversal of the decree is that the transfer of the shares of stock by McKennon to Thane was not made in strict compliance with the provisions of § 3 of act 496 of the Acts of 1921, and that, on account of failure in this respect, the transfer was not effective as against the creditors of the insolvent bank.

The first act on our statute books relative to the transfer of shares of stock was an act to provide for the creation and organization of incorporated companies, passed by the Legislature of 1869. Acts of 1869, p. 179. A part of § 12 of this act relating to the transfer of stock is now § 1716 of Crawford & Moses’ Digest, and reads as follows:

“Whenever any stockholder shall transfer his stock in any such corporation, a certificate of such transfer shall forthwith be deposited with the county clerk aforesaid, who shall note the time of said deposit, and record it at full length in a book to be kept by him for that purpose; and no transfer of stock shall be valid as against any creditor of such stockholder until such certificate shall have been so deposited.”

This act has been construed by this court in the following cases: Warren v. Nix, 97 Ark. 374, 135 S. W. 896, and Bank of Midland v. Harris, 114 Ark. 344, 170 S. W. 67, Ann. Cas. 1916B, 1255. In the case first cited a stockholder, in good faith, before.the insolvency of the bank, transferred his stock to the cashier, and gave him full power to note the transfer upon the books of the bank and to file a statement of the transfer with the county clerk. The transfer was held to be valid, and that there was no liability under the statute, because the stockholder had done all that could be expected of a reasonably prudent business man. In the case last cited the court again held, that a transfer of capital stock without same being recorded on the books of the corporation is efficacious to sever the relation between a stockholder and the bank, if the sale had been made honestly and in good faith, and the seller or transferrer of the stock had done all that could be done by a careful and prudent business man in order to make such'transíer.

In the case at bar the undisputed facts are that the stock was sold to the president of the bank at a time when it was solvent, and there is no suspicion of fraud in the transaction. The seller and the purchaser were perfectly solvent at that time. The stock certificates were duly transferred on the printed forms on the backs of the certificates, and power of attorney was given, authorizing the change of ownership to be made upon the books of the bank, and the. same were delivered to the president of the bank, who was also- the purchaser of the stock. Thereafter McKennon was no longer considered' a stockholder of the bank, and his place as holder of the certificates of stock in question was taken by Henry Thane, the president of the bank, who thereafter voted the shares of stock iat the meetings of stockholders and collected the dividends on the same.

It is conceded that McKennon cannot be held liable for the double liability of stockholders imposed by statute unless the rule above announced has been changed by subsequent statute. It is contended, however, that subsequently the Legislature passed a mandatory statute, intending to protect depositors and other creditors of banks which become insolvent, by making it the duty of the transferrer of stock to see that the stock was transferred in the manner provided by the statute, in order to escape the double stockholders’ liability under the statute for the benefit of creditors of an insolvent bank.

The Legislature of 1913 passed an act for the organization and control of banks. The act created the State Banking Department, and provided for the appointment of a State Bank Commissioner and prescribed his duties. Crawford & Moses’ Digest, chapter 15. Section 21 of the act, which is § 686 of the Digest, regulates the transfer of stock, and reads as follows:'

“The stock of every bank shall be deemed personal property, and in case of sale'shall be transferred only on the books of such corporation, in such form as the commissioner shall prescribe, and, whenever any stockholder has sold and may wish to transfer his stock, a certificate of such transfer, signed by the president and cashier, or secretary, shall be deposited with the county clerk of the county in which it is located, who shall note the time of filing thereof, and record it in a book to be kept by him for that purpose, for which the clerk shall be entitled to a fee of twenty-five cents; and no sale or transfer of stock shall be valid as against creditors of such stockholder until such certificate has been deposited.”

This section was amended by the Legislature of 1921. Acts of 1921, p. 514. Section 3 of that act reads as follows:

“The stock of every bank shall 'be deemed personal property, and in case of sale shall be transferred only on the books of such corporation, in such form as the commissioner shall prescribe, and, whenever any stockholder has sold and may wish to transfer his stock, a certificate of such transfer, signed by the president and cashier, or secretary, and setting forth the name and residence of the transferee, shall be deposited by said transferrer with the commissioner, who, after he has indorsed it as having been filed with him, shall return it for filing with the county clerk of the county in which the said bank is located. The said- county clerk shall note the time of the filing thereon, and record it in a book to be kept for that purpose, for which the clerk shall be entitled to a fee of twenty-five cents. No sale or transfer of stock shall be valid as against creditors of the transferrer until such certificate so filed with, and indorsed and returned by, the commissioner, has been filed for record with said county clerk.”

Now it is contended that provisions of this section, that, whenever any stockholder may wish to transfer his stock, the certificate of such transfer, properly signed, and setting forth the name and residence of the transferee, shall be deposited by said transferrer with the State Bank Commissioner, who, after he has indorsed it as having been filed with him, shall return it for filing with, the proper county clerk, changes the rule laid down in our former decisions, and that the rule now is that the transfer of stock by a shareholder in a bank does not relieve him from the stockholder’s double liability until the transfer is perfected by being deposited with the Bank Commissioner and otherwise complying with the provisions of the act of 1921 above referred to.

Our act creating the State Banking Department was passed March 3, 1913, and the case of Bank of Midland v. Harris, supra, was decided by this court on June 29, 1914. Hence it is earnestly insisted that the act of 1921 was passed for the purpose of changing the rule laid down in that case and in our previous decisions relating to the subject. We do not agree with counsel in this contention. It will be noted that the concluding part of the section in each of the acts is the one which renders the transfer of the stock invalid as to creditors under certain conditions. Each act is practically the same on this subject. Each act, in effect, provides that no sale or transfer of stock shall be valid as against creditors of the transferrer until such certificate of stock has been filed with the county clerk. In the Bank of Midland case the court recognized that there was a very wide difference in the authorities in construing clauses of this kind, but it was expressly stated that the court must treat it as settled by the case of Warren v. Nix. The reason for requiring* the certificate of stock to be filed for record with the county clerk is to provide a public record, where persons dealing with the corporation or stockholders could readily secure knowledge of the stockholders of the corporation, in order to ascertain who would be liable under the stockholders’ double liability statute. It was as much 'the duty of the transferrer of the certificate of stock to see that the same was filed for record with the county clerk before the act of 1921 was passed as it was afterwards. .The act of 1921 only added the requirement that the certificate should be indorsed by the State Bank Commissioner. The vital part of the act was that the transfer should be filed with the county clerk in order that persons dealing with the bank or the stockholders should have knowledge of the holders of its capital stock and the amount thereof. It could add nothing that .an additional requirement was made that the Bank Commissioner should indorse the transfer. No record was to be kept by the Bank Commissioner, and the fact that he should indorse the transfer could add nothing to the duty of the transferrer to see that it was filed for record with the county clerk in order that persons dealing with the corporation or the stockholders might have trustworthy knowledge of the stockholders thereof. Hence we do not think that the act of 1921 would warrant us in treating the ruling made by the court in Warren v. Nix, supra, and the Bank of Midland v. Harris as having been changed by statutory enactment. In the case of Bank of Midland v. Harris the court expressly stated that the rule announced in our earlier decisions must be treated as settling the question in this State. Therefore we- adhere to our former ruling on the subject, and are of the opinión that the rule was not changed by the section of the act of 1921 relating to the transfer of the stock of banks in this State, and that the transfer involved in this case complies with the provisions of that act.

Counsel for the defendant contends that act 496 of the Acts of 19;21 has been repealed by act 387 of the Acts of 1923, which is an act to regulate the transfer of corporate stock and whose provisions were substantially complied with. General Acts of 1923, p. 358. We do not deem it necessary to pass on this question, for two reasons. In the first place, the conclusion we have reached renders if unnecessary to do so. In the second place, § 23 of the act says that the provisions thereof shall apply only to certificates issued after the passage of the act. The certificates in this case were issued before the act of 1923 went into effect.

Therefore the decree will be affirmed.