author: Wood, J.

text:
    Central Coal & Coke Company v. Orwig.
    Opinion delivered December 5, 1921.
    1. Corporations — foreign corporations — residence.—Crawford & Moses’ Dig. §§ 1826-27, providing that a foreign corporation shall designate its general office or'place of business in the State and name an agent upon whom process may be served, and shall consent that service of process may be had upon any agent of the company or upon the Secretary of State, held not intended to confer a local residence upon such corporations, but only to provide remedies for those who may have causes of action against them in this State.
    2. Removal op causes — citizenship.—Where a cause of action was brought in a State court in a county situated in the Western Federal District by a resident of such district against a foreign corporation doing business in this State and having in the State an agent designated upon whom process might be served, the defendant was not entitled to have the cause removed to the Eastern Federal District upon the ground of diversity of citizenship.
    8. Master and servant — personal injury — questions for jury.— Under the evidence in a personal injury case, held that the issues of negligence, contributory negligence and assumed risk were for the jury.

      4. Trial — improper argument — prejudice.—An improper reference, in an attorney’s argument in a personal injury case, to the fact that an insurance agent was- sitting beside defendant’s counsel was cured by a direction to the jury to disregard such remark.
    Appeal from Yell Circuit Court, Danville District; A. B. Priddy, Judge;
    affirmed.

      James B. McDonough, for appellant.
    1. The petition for removal should have been granted. The appellant is an inhabitant and resident of the Eastern District of Arkansas, within the meaning of the act of Congress. 4 Fed. Stat. Ann. p. 838; 5 Id. p. 16; Id. p. 846; U. S. Stat. at Large, Vol. 36, p. 1101. Yell County, in which the suit was brought is, under the act of Congress, in the Little Rock Division of the Eastern District of Arkansas, and appellant could have been sued originally in the United States District Court of that division and district. The act of 1907, requiring a foreign corporation desiring to do business in this State to consent to service upon an agent, etc., applies to Federal courts as well as State, and as a matter of law makes the corporation consent to be sued in the Federal courts. The act is valid. 108 Ark. 562. The words “inhabitant,” “found” and “residence” are synonymous. 230 Fed. 968; 193 Id. 728; 145 U. S. 444; 27 Fed. Cas. 486. See also 48 Fed. 202; 29 Fed. 17; 6 Sawyer, 262; 45 Fed. 345; 57 Id. 529; C. & M. Dig., §§ 1825 to 1831 inch; 48 Fed. 1; 179 Id. 569. A. foreign corporation is “found” in the district, and has a residence therein, if it may be served in the district. 69 Fed. 704; 199 Id. 927; 7 Id. 139; 21 Id. 288; 39 Id. 290; 41 Id. 833; 49 Id. 297; Id. 884; 117 Id. 732; 179 Id. 556.
    The residence of a corporation is any place where it has a service agent. 3 Thompson on Corporations, § 3014; 51 Mo. 308. The Legislature of the State has determined that the corporation may be sued in any county in the State, and appellant having consented thereto has therefore consented that it might be sued in the Federal court. 96 Am. Dec. 183; 9 N. H. 394; 40 N. J. L. Ill; 42 Id. 490; 170 TJ. S. 100; 172 TJ. S. 602; 89 Fed. 121; 92 Id. 3.
    The suit was brought in Yell County for the sole purpose of defeating the right of removal to the Federal court and was therefore fraudulent. 22 L. R. A. (N. S.) 1235.
    2. The circuit court of Yell County was without jurisdiction to hear and determine the case. § 11, art. 12, Constitution; §§ 1825-1832, C. & M. Digest; § 1171 C. & M. Digest, and cases cited; Id. §§ 1164, 1165, 1174. To give a domestic corporation the right to be sued in its own county (C. & M. Dig. § 1171) and deny that right to a foreign corporation doing business in the State is to discriminate against the foreign corporation, in violation of the State Constitution and of § 1 of the 14th Amendment to the TJ. S. Constitution. The statute is void, 252 TJ. S. 60; 241 U. S. 329; 249 TJ. S. 522.
    3. Non-expert witnesses may state facts only; they cannot give opinions as experts. 125 Ark. 86; 95 Id. 310; 19 Id. 533; 23 Id. 730; 1 Elliott on Ev. 675, 676 and cases cited; 122 Am. St. Rep. 580.
    4. It was improper and prejudicial to refer, in argument to the jury, to the witnesses of the defendant as a gang. 31 N. Y. S. 926; 82 Hun 349. The use of this word was reversible error. 61 Ark. 130; 82 S. W. 562; 80 Ark. 23; 63 Id. 174; 70 Id. 305; 180 S. W. 474. The reference to W. L. Leavy as an insurance agent, he not being a witness in the case, and there being no testimony that he was an agent of an insurance company was wrongful, harmful, and constituted reversible error, even though the court attempted to cure them. 80 Ark. 158; 87 Id. mi; Id. 515; 89 Id. 58; 104 Id. 1; 114 Id. 542; 131 Id. 6; L. R. A. 1915-A, p. 155, note; 196 S. W. 606; 104 Id. 384; 177 N. W. 217; 175 Id. 470; etc., etc.
    5. The verdict is contrary to the clear weight of the testimony, and the fact that the trial judge over'ruled the motion for new trial ought not, in the light of the affidavit appearing in the addition to the bill of exceptions presented by the appellant, to be taken as a finding by the trial judge of a preponderance in favor of the plaintiff. 126 Ark. 427; 133 Id. 166; 136 Id. 45.

      Wilson (& Chambers and John W. Goolsby, for appellee.
    On the question of removal, this court has frequently held contrary to appellant’s contention. 129 Ark. 550; 98 Id. 507; 107 Id. 512. Appellant, being a Missouri corporation, has no residence in this State. 140 Ark. 135; 253 U. S. 325. Neither the plaintiff, a resident of Sebastian County, nor the defendant, a Missouri corporation, was a resident of the Eastern Federal District of Arkansas. That the act providing that an action may be brought against a foreign corporation in any county in the State is constitutional, has been settled by the decisions of this court. 140 Ark. 135.
   Wood, J.

This is an action by the appellee against the appellant to recover damages for alleged personal injuries. The appellee alleged in substance that the appellant is a corporation doing business in Arkansas and operating a coal mine at Hartford; that appellee, on the 21st of July, 1920, while working in the mine, was injured by coming in contact with a wire charged with electricity, which wire, through the negligence of appellant, had not been insulated or protected in any way, but left exposed in a manner to be dangerous to the employees; that the appellee, without any fault or carelessness on his part, while engaged in the discharge of his duties, came in contact with the same, causing his injuries, which he set forth in detail, to his damage in the sum of $20,000, for which he prayed judgment. The appellant filed a petition and bond, which wrere in due form, for removal of the cause to the United States District Court. The trial court denied the petition, to which appellant duly excepted.

This presents the first question for our consideration which must be determined by the decisions of the Supreme Court of the United States. The question has been settled by the decisions of our own court and also by the decisions of the Supreme Court of the United States adversely to appellant’s contention. St. L. S. & F. R. Co. v. Kitchens, 98 Ark. 507; C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512; Central Coal & Coke Co. v. Graham, 129 Ark. 550; Pekin Cooperage Co. v. Duty, 140 Ark. 135; Boston, etc. Mining Co. v. Montana Ore Co., 188 U. S. 632; Ex parte Wisner, 203 U. S. 449; In re Winn, 213 U. S. 458.

The petition for removal alleges, among other tilings, “that within the meaning of the removal act of Congress your petitioner has a venue residence botti in the Eastern District of Arkansas and in the Western District of Arkansas, and may be sued in either district in the Federal courts thereof.” It is further alleged that the appellant “has a service agent in the State of Arkansas as required by the laws of this State upon whom service of process may be had, and that under the law of Arkansas the appellant could be sued by the appellee in the United States District Court at Little Bock and also at Ft. Smith.” Our statutes require a foreign corporation to designate its general office or place of business in the State and to name an agent upon whom process may be served (Sec. 1826, C. & M.). And also requires such corporation to consent that service of process may be had upon any agent of the company or upon the Secretary of State. (Sec. 1827, C. & M.)

These statutes prescribe the conditions upon which foreign corporations can do business in this State, and were not intended to, and do not, confer a local, State or county residence upon them. These statutes were intended to provide remedies for residents of this State against foreign corporations, or corporations that have no residence in and are not inhabitants of this State.

Sec. 11, article 12 of our Constitution as to foreign corporations authorized to do business in this State among other things provides: “As to contracts made or business done in this State, they shall be subject to the same regulations, limitations and liabilities as like corporations of this State.” And section 1828 of Crawford & Moses’ Digest provides among other things: “Such corporations shall be entitled to all the rights and privileges and subject to all the penalties conferred and imposed by the laws of this State upon similar' corporations formed and existing under the laws of this State.” But the above provisions do not make foreign corporations residents or inhabitants of this State in which they are authorized to do business.

Our statutes designating the agents and fixing the forums in which foreign corporations may be sued do not take away any of the rights guaranteed to foreign corporations under our Constitution. They relate only to the remedies provided for those who may have causes of action against them in this State. See American Hardwood Lbr. Co. v. Ellis & Co., 115 Ark. 524. “Foreign corporations have their legal existence and are located within the boundaries of the State under whose laws they are organized.” Pekin Cooperage Co. v. Duty, supra. Neither the appellee nor the appellant was a resident of the Eastern Federal District of Arkansas where the action was brought. Since, therefore, the appellant was not a resident or inhabitant of the Eastern. Federal District of Arkansas, but had its domicile or residence in a foreign State, it had no right to remove the cause of action under the removal acts of Congress. 5 Fed. Stat. Ann. p. 16 Sec. 28; 5 Fed. Stat. p. 486, § 51 (Judicial Code).

After the petition for removal of the cause was denied, the appellant answered and denied that the appellee was injured in the manner set forth in his complaint and also denied specifically the allegations of negligence contained therein, and set up the affirmative defenses of contributory negligence aiid the assumption of risk on the part of the appellee. The trial resulted in a verdict and judgment in favor of the appellee in the sum of $5,000. The appellant contends that the evidence was not sufficient to sustain the verdict, and that the trial court erred in refusing to give a peremptory instruction directing them to return a verdict on the above issues in its favor. The facts developed at the trial on these issues are substantially as follows:

The appellee was working in the appellant’s coal mine No. 4 in Sebastian County, Arkansas. He was driving what was known as the “fourteenth east entry” loading coal out of that entry. Two men were working together. The entry was being driven so as to prepare for rooms and develop the airway. The coal in the entry is undercut by a coal machine. It is then shot down by the shot-firer and removed by the diggers. The electricity is conducted to the machine by copper wires. The row of posts carrying the wires was about three feet from the lower rail of the dip switch. The dip switch turned off from the track into the back entry to air course and goes down the heading. Canvas curtains were attached to the same posts that the wires were attached to, but not pn the same side of the post that the wires were on. These curtains were put up to block the air currents and turn them into the working places. The wires are put on the posts, the positive wire on one side and the negative on the other. The posts bearing the wires are placed between the lower rib, or wall, and the track. The dead or return wire is on the side of the posts next to the track, and the live wire is on the other side. The. live wire was extended down the track something like ten or twelve feet further on the posts than the dead wire. There was no purpose in so extending it. It was not worth anything from the point where the dead wire ended to the live wire’s extended end, but, so far as the electricity was concerned, it was just as dangerous beyond the end of the dead wire as it was back of it. The appellee did not know before his injury that the live wire was thus extended. The appellee had put wires in the slope air course, but had never stretched one inch of wire in the fourth east entry, unless it was up at the fourteenth east air course. The fourteenth east entry branches off from the slope. The appellee had acted as a lineman, whose duty it was to put wires up for the machine- — the live wire and the dead return wire. Appellee was not there when the machine men made the cable and did not remember anything about the machine men, except when they were in his entry or place cutting. He didn’t know at what point they had stopped the wire. The appellee was familiar with the manner of fastening the cable nips to the power wires. It would be practical to put the nips on the end of the power wire. If witness or any other man should discover the cable hooked to the power wires back behind where he was working, that would indicate to him that the end of the power wires was back where the connection was made. The appellee did not have any means of knowing, without an investigation, that one of the power wires extended further toward the face than where the nips were hooked on.

The appellee thus describes the manner of his injury: “We were at our working place performing our duty. The driver had given us a back switch, placing us an empty car to receive a load, which we did, and pulled the load out of the -back entry, and in so doing the mules backed, dragging the cable down. I was holding the weight of the car with both hands pushing the car in. Naturally my ‘buddie’ (fellow worker) was going to drop in on the back end with me to help me with the knuckle, as we call it, and frog, and, instead of him returning with me as I expected, he hallooed, ‘Wait a minute, the machine cable is down.’ Probably the car was along about the frog at that time. Then he put the cable up on his side, which is in between the two tracks, the 'top entry track and the lower entry switch. He put the cable up that extends into the entry on his side and remarked, ‘Here,’ or something like that, calling my attention. I stepped up to the side of the car, as innocent as a little dove, hanging that cable up on the board trying to get it to fasten up there. There was a little nail in there, probably a sixpenny nail, which the weight of the cable had bent down until it would hold the cable no longer. The board that had been put up to support the canvas across the entry was sticking up there, and it was down probably an inch, one-half inch, or something like that, I don’t know how far, but that is the first thing I thought of— stick you in there and you will be out of my way. This is no place for you. I held the cable with this hand trying to pull the slack cable up from this entry along to me as a man would a lariat rope, trying to get enough cable up so as I could place it up to keep it from coming oat. from this board; when doing so, I had no place to put it — it wouldn’t stay. My thought was next, stick you over this curtain, and you will stay there probably — your own weight will hold the weight there naturally, and in doing so I came in contact with that live wire in this arm, and it knocked me absolutely as dead and as cold as a wedge.”

The appellee’s testimony further shows that he was endeavoring to pick up the cable to keep the car from running on to it and cutting same in two, which would have rendered the situation of appellee and his fellow worker very dangerous. His testimony shows that it was. his duty and the duty of others operating in the mine to pick up the cable. There was supposed to be no danger connected with 'this. The appellee stated that be did not know that the live wire from which he received the shock was behind the canvas. He then testified that there were several different ways to have protected the wire; that it could have been an insulated cable It could have been put, if necessary, five or six feet from the rail, instead of three. There could have been a. board nailed between the workman and the wire, which would have prevented the man from coming in contact with the wire and make it absolutely safe. The appellee then describes his sensation when lie returned to consciousness and Ms physical condition before and after the alleged injury. •

. Iiis testimony further shows that his arm came in contact with the wire somewhere-about the wrist or an inch from the wrist joint. There was no burn. Ai: the time of his alleged injury he had on gum boots and woolen socks. The boots had holes in them both in the bottom and in the sides. The appellee at the time was standing on a muck or mud bottom — inclined to be damp. He stated that the place where he was injured was not wet, but that none of it was perfectly dry. It was counted dry, and there was dry dusty coal — there was no water-standing at the place where he was hurt.

One of the witnesses on behalf of the appellee testified that he went back to the place where ■ the people were surrounding the appellee at the time he was injured. He found them about three or four feet from the curtain up toward the dip switch. Appellee was up on an entry — the main entry — sitting down on his knee and had his hands down. He was next to the face from the curtain coming across the main entry. The car was under the dip switch curtain and turned into the dip switch. It had six or seven props in there. "Witness and one Pete Coffman helped to unload the props so they could put appellee in the car to send him out of the mine. The wire could not have been seen by a person standing at the place where witness found appellee, because the curtain Avas hanging between him and the wire. The ivire Avas not insulated. It was the hot wire. It carried a dangerous current of electricity. There was nothing between the íavo props that the wire ivas fastened to, to prevent a person from coming in contact with the wire. If they had nailed a couple of boards on the two props horizontally, this would have protected a person from falling against the wire.

Another witness testified that he assisted in hanging the -wire in question; that the wire was laid back beyond the dead Avire and stretched up. “We stretched them lo this dip switch and stopped at a point a distance from the track which was safe for everybody, and in that particular instance we had a few feet of wire that extended beyond that prop, and we turned it back and wrapped it around itself. If we had stopped this live wire at the end of the dead wire, we would have had possibly twelve feet to wrap back. It would have been just as practical to wrap this amount back as it was the little amount we did wrap back. The nips could have been used on it just as well. If the live and dead wires both extended the same distance, you would have reached the dead wire before you reached the live wire in stepping toward them. The dead wire is harmless.”

This witness further testified that, if a ten-inch board had been nailed on the opposite side of the post from the wire, that would probably have made it safer to people working in the entry in keeping them from coming in contact with the wire. This witness also testified that he had been shocked by electric wires in the same mine when they were charged with 250 volts; that the only injury he had received from it was that it knocked him down. Another witness also testified that he had been knocked down two or three times by the direct current from the electric wires in Mine No. 4, but was never burned with any of them.

On behalf of the appellant, there was testimony to the effect that it was impossible for a man to put his 1 and against the live wire if he stood in the angle of the curtains where the appellee said he stood. The witness went into detail as to the condition and the situation of the mine at the time and place the appellee is alleged to have been injured. The appellant also introduced the testimony of a medical expert who had had occasion to study and treat injuries due to electricity. He, in company with other physicians, had examined the appellee. He found no physical injury of any kind whatever, no evidence of any burn from electricity, and found the plaintiff normal in every way. In his opinion the plaintiff was a malingerer. This examination was made long’ after the injury and just before the trial, the examination being authorized by the court.

Two other physicians, experts, testified. One of them had been called to treat the appellee at the time of his injury. He found him complaining and trembly and apparently exhausted from some cause, claiming that he had been in contact with an electric wire. He made a diagnosis of his case in the usual way and found that lie had the same symptoms of a person recently after a shock who had been struck by lightning. He stated that appellee had no organic trouble that he knew of, but that he seemed to be “all down and out” and witness was unable to explain why. At the time of the trial appellee didn’t seem to be sick at all, but he was weak and emaciated. The physician gave it as his opinion from the history of the case that the cause of appellee’s weak and run-down condition was the electric shock. The other physician who had also examined the appellee testified substantially to the same effect.

There was testimony to the effect that the appellee, before he received the injury, was “healthy, strong, energetic, a good worker and enthusiastic.” At the time of the alleged injury he weighed 158 pounds and at the time of the trial he weighed 136 pounds. There was also testimony to the effect that appellee was known in the community as a good man; was the president of the Red Cross unit at Hartford during the war, and was exceedingly active in all the Liberty drives for the sale of bonds — was a leader in all these things.

The above facts speak for themselves. Without discussing them in detail, it suffices to say, giving them their strongest probative force in favor of appellee, they show that the issues of negligence, contributory negligence and assumed risk were issues for the jury. The court did 'not err therefore in refusing appellant’s prayer for a peremptory instruction.

The court gave instructions, numbered 1 to 22 inclusive, embracing therein instructions on its own motion and certain prayers for instructions requested by the appellant and also certain prayers requested by the appellee. These instructions covered the evidence adduced at the trial. They correctly announced familiar principles of law applicable to the issues of negligence, contributory negligence and assumed risk, and were in accord with the well established doctrines on these subjects as they have been announced in numerous former decisions of this court. Appellant presented seventeen prayers for instructions which the court refused. Such of these as were correct, the court covered in the instructions it gave. We find no error in the ruling of the court in the giving and refusing of prayers for instructions.

During the opening argument before the jury, one of the attorneys for the appellee referred to W. L. Leavy as “an insurance .agent setting beside Mr. Mc-Donough. ” The appellant objected to the statement on the ground that it was wrongful, harmful and erroneous, the said W. L. Leavy not being a witness in the case and there being no testimony that he was the agent of an insurance company. The appellant asked the court to instruct the jury to disregard the statement. The court did this, stating to the jury that there was no evidence that Leavy was an insurance agent, and that the jury, should disregard the statement. The appellant duly saved its exception “to the making of the unfounded'and erroneous remark” by counsel for the appellee. The. remarks of counsel were highly improper. See Williams v. Cantwell, 114 Ark. 542; Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1. But it does not occur to us that they were so flagrant as to produce a deep-seated and irremovable prejudice in the minds of the jury. To so hold would impeach the jury of a desire or willingness to give heed to the remarks of interested counsel, rather than to follow the instructions of the impartial judge, and this too notwithstanding their oath to decide the case according to the instructions of the court and the • ■vidence adduced by the witnesses. A sensible and honest jury is not likely to- be swerved from the path of duty by such conduct on the part of counsel. The court promptly complied with the request of counsel for the appellant to instruct the jury, not to consider the remarks of counsel for the appellee. The statement of the court in the presence of the jury that there was no evidence that Leavy was an insurance agent and to disregard the statement of counsel to that effect would, we believe, remove all prejudice in the minds of the jury that the remarks might have produced.

The appellant objected to certain other remarks of counsel for the appellee, all of which we have considered. But we do not find any errors prejudicial to appellant in the rulings of the court concerning the remarks of counsel. There are many other assignments of error in the motion for a new trial, which have been ably presented in the elaborate brief of counsel for the appellant. We have considered all of these assignments, but it would unduly extend this opinion to discuss them, and we deem it unnecessary to do so.

After a careful consideration of the whole record we find no error prejudicial to the appellant in any ruling of the trial court, and its judgment must therefore be affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Cegars v. State.
    Opinion delivered December 5, 1921.
    3. Indictment and information — allegation of venue. — Under Crawford & Moses’ Dig. § 3020, providing that “if the indictment contains no statement of the place in which the offense was committed, it shall be considered as charged therein that it was committed in the local limits of the jurisdiction of the court in which the grand jury was impaneled”, held that where an indictment for murder alleged that the crime was committed in a . certain county of the State, but failed to allege in which of the two districts of the county it was committed, it will he considered that it was committed in the district in which the grand jury was impaneled.

      2. Homicide — appeal—objections not raised below. — On appeal from a conviction of murder in the first degree, objections to evidence adduced or to the instructions given by the court will not be considered on appeal where such objections were not saved in the court below.
    Appeal from Arkansas Circuit Court, Northern District; George W. -Clark, Judge;
    affirmed.

      Mehaffy, Bonham & Mehaffy, for appellant.
    The indictment is fatally defective, in that it did not set out the district. 14 B. C. L. 181; 1 Bish. Crim. Proc. 875; 22 Cyc. 310; Std. Enc. of Procedure, Yol. 12, p. 429; 92 Cal. 277; 28 Pac. 270; 228 111. 581; 81 N. E. 1129; 10 Humph. (Tenn,) 615; 1 Va. Cas. 1. See .also, 1 Chit. Crim. Law, 131. The indictment was bad for uncertainty. Std. Ency. of Procedure, Yol. 12, p. 428; 29 Fla. 455 ; 10 Sou. 891; 8 N. J. L. 307; 18 Tex. 391; 39 Me. 291; 26 Neb. 263; 20 Mo. 411; C. & M. Dig. Secs. 3212-13; 14 B. C. L. Sec. 27, p. 181.
    The jury were not sworn on their voir dire. C. & M. Dig. Sec. 3144.
    The court erred in its instructions to the jury as to the weight and credibility of the testimony of the witnesses. 82 Ark. 540; Prewitt v. State, ms. op.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The bill of exceptions must be filed within the time allowed by the lower court. 103 Ark. 46; 80 Ark. 410. It must be signed and filed in time. 103 Ark. 44; 39 Ark. 558; 52 Ark. 415.
    No motion for new trial was filed, and this court can only correct such errors as appear on the record proper. 215 S. W. 385; 129 Ark. 217.
    Before this court will review the testimony and instructions for errors, it is essential that objections be raised in the lower court. 123 Ark. 66; 12 Stand. Ency. of Proc. pp. 661-662.

      If there was any defect in the indictment, the objection should have been raised in the court below. 99 Ark. 134; 105 Ark. 82; 215 S. W. 703; 32 Ark. 179; 34 Ark.. 321. The defect was cured by the verdict. 12 Stand. Ency. of Procedure, p. 700.
    Indictment must be found in the county where the offense was committed. 55 Ark. 556.
    . Objections to instructions made for the first time on appeal cannot be considered. 70 Ark. 348; 74 Ark. 557; 124 Ark. 599; 94 Ark. 68.
   Hart, J.

George Cegars prosecutes this appeal to reverse a judgment and sentence of conviction against him upon the verdict of a jury finding him guilty of murder in the first degree.

It is earnestly insisted by counsel for the defendant that the judgment should be reversed because of a defect in the indictment charging the venue of the crime. The indictment is as follows:

State of Arkansas Against George Cegars

In the Arkansas County Circuit Court, Northern District, August Term A.D. 1921.

The grand jury of the Northern District of Arkansas County, in the name and by the authority of the State of Arkansas, accuse George Cegars of the crime of mur-. der in the first degree committed as follows, to-wit: The said George Cegars, in the county and State aforesaid, on the 15th day of April, A.D., 1921, did then and there unlawfully, wilfully, feloniously, with .malice aforethought and after premeditation and deliberation, kill and murder one Henry Carter by then and there shooting him, the said Henry Carter, with a certain gun, then and there loaded with gunpowder and leaden balls, which said gun was then and there had and'held in the hands of him, the said George Cegars, contrary to the statute in sucli cases made and provided, and against the peace and dignity of the State of Arkansas.

W. J. Waggoner, Prosecuting Attorney.

It will be noted that the place where the crime is alleged to have been committed is stated in such manner as to show that the court had jurisdiction of the offense. The body of the indictment shows that the grand jury of the Northern District of Arkansas County in the name and by the authority of the State of Arkansas accuses George Cegars of the crime of murder in the first degree. It is true that the charging part of the indictment alleges that the crime was committed-in the county and State aforesaid, without alleging that it occurred in the Northern District of said county and State. This was not necessary under our statute. Section 3020 of Crawford & Moses’ Digest reads as follows:

“If the indictment contains no statement of the place in which the offense was committed, it shall be considered as charged therein that it was committed in the local limits of the jurisdiction of the court in which the grand jury was impaneled.”

This section of the statute is a part of our Criminal Code and has been upheld in the following cases: Whetstone v. State, 32 Ark. 179, and Brassfield v. State, 55 Ark. 556. In each of these cases the defendant was convicted of the crime of murder in the second degree and made the same objection to the indictment as is made in the present case. Therefore the objection to the indictment applies to matters of form and not substance and is not well taken.

The body of the indictment shows that it was found by the grand jury of the Northern District of Arkansas County, and under the statute the crime will be considered as having been committed within the local jurisdiction of the court in which the indictment is found.

The court gave instructions at the request of the State, and also of the defendant. Counsel for the defendant in this court urged a reversal of the judgment on account of certain instructions given by the court. No objections were made to these instructions by counsel who represented the defendant in the court below.

The jury returned the defendant guilty of murder in the first degree. He made no objections to the evidence adduced, or to the instructions given by the court. Therefore, we cannot consider any alleged errors on account of the introduction of evidence or the giving of instructions. Harding v. State, 94 Ark. 65, and Morris v. State, 142 Ark. 297, and cases cited.

Evidence on the part of the State warranted the jury in finding the defendant guilty of murder in the first degree. The deceased, Henry Carter, and his wife were separated. The defendant, Gorge Cegars, had been paying attention to Carter’s wife. Carter told him that he must cease doing this until a divorce had been secured. Between five and sis o’clock in the morning on the first day of April, 1921, the defendant, George Cegars, approached Henry Carter in the Northern District of Arkansas County, Ark., and drawing his gun, shot him to-death. The deceased was unarmed, and there was no cause for the shooting. The deceased did nothing whatever to provoke the defendant to attack him. When the defendant fired the first shot, the deceased started to run, and the defendant continued shooting at him until he had killed him.

According to the defendant’s evidence, he was afraid of the deceased and killed him because he had his hand in his pocket, and he thought the deceased was going to shoot at him.

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


text:
    Miners' & Citizens' Bank v. Maxine Mining Company.
    Opinion delivered December 5, 1921.
    Corporations — insolvency—preference of laborers. — Under Crawford & Moses’ Dig. §§ 1798-1801, prohibiting preferences by attachment, confession of judgment or otherwise among creditors of insolvent corporations, except for wages and salaries of laborers and employees, and providing that such preferences shall be set aside where complaint is made within 90 days after the same is given or sought to be obtained, held that where laborers and emjjioyetb oí axi jL,bOxvx.xi¿ corporation intervened in an attachment suit brought by a general creditor within 90 days from the levy of the attachment and asked that their claims be preferred to that of the attaching creditor, it was proper to set aside the attachment lien and to enforce the preference of the interveners.
    Appeal from Marion Chancery Court; 2?. F. McMahan, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    On the 20th of September, 1917, appellant filed a suit in equity against appellees in which it asked for judgment on certain notes and for a foreclosure of certain mortgages given to secure the same.
    The complaint also alleged grounds for attachment and asked that a general attachment be issued and lemed on certain property belonging to the Yellow Bose Mining Company, one of the appellees.
    On the 20th day of September, 1917, the writ of attachment was duly issued and levied by the sheriff upon certain personal and real property belonging to the Yellow Bose Mining Company. On the 13th day of October, 1917, appellant filed in the chancery court an application for a receiver for the Yellow Bose Miniig Company. A receiver was duly appointed.and took charge of the property of said company.
    On the 25th day of October, 1917, the Bank of Yell-ville, the Silver Hollow'Mining Company, and W. S. Petit, as trustee in bankruptcy of the Maxine Mining Company, -filed an intervention in the chancery suit brought by appellant against appellees as above mentionecl. They state that they are creditors of the Yellow Bose Mining Company and ask judgment against said company in the sum of $1940.34. They state that the Yellow Rose Mining Company, in addition to being indebted to them, owes to its workmen and laborers for labor performed about $3,000. They allege that laborers and mechanics’ liens have been filed against the property of said Yellow Rose Mining Company, and that said company owes other large sums for supplies which it is wholly unable to pay. They further allege that said company has ceased operations and has abandoned its property in this State. They allege that said corporation, the Yellow Rose Mining Company, is wholly insolvent, and that its officers are permitting its assets tc become wasted.
    The prayer of the interveners is that the affairs and business of the Yellow Rose Mining Company in this State be wound up, and its property and holdings be ordered sold and distributed as provided by law.
    In October, 1917, numerous' laborers filed suit in the justice court for their wages and obtained judgment against the Yellow Rose Mining Company. They also presented their judgments and claims to the receiver of said company for allowance as preferred claims under the statute.
    On the 10th day of November, 1917, the receiver filed an inventory of the assets of the Yellow Rose Mining Company. On the 6th day of December, 1917, the receiver of the Yellow Rose Mining Company filed a report of all the claims which had been presented to him by the laborers of said company and recommended to the court that the amounts due the laborers be allowed as preferred claims.
    The record shows that the Yellow Rose Mining Company was insolvent at the time appellant had the attachment issued and also at the time the interveners filed their petition in the chancery court for the purpose of winding up the affairs of said corporation and distributing the assets among the creditors after paying the wages and salaries due its laborers and employees.
    The court found that the Yellow Rose Mining Company was insolvent, and that the laborers of said company were entitled to be preferred in their claims, and sot aside the preference obtained by appellant from its attachment. ■
    The property of said company was ordered sold by the receiver and the proceeds to be distributed among, the preferred claimants. A decree was entered accordingly. This did not leave sufficient assets to pay the appellant. Hence it has duly prosecuted an appeal to this court.
    Williams; $ 8Gomel, for appellant.
    The attachment lien was fixed by' the levy of the attachment on the property. C. & M. § 512. When the receiver was appointed, he took the property subject to valid liens against it at the time of his appointment. 97 Ark. 534.
    The intervention of the Bank of Yellville et al. within 90 days from the levy of the attachment, did not operate to dissolve same. See C. & M. Dig., §§ 1798, 1800, inclusive. No complaint was made by any creditor or stockholder within 90 days of the preference secured by the attachment, and thereafter the attachment lien became fixed absolutely, and it was not within the power of the chancery court to vacate or set it aside. 67 Ark. Ill; 109 Ark. 584; 114 Ark. 26; Cole v. Bloyd, 147 Ark. 396.
    The only right employees and laborers have under the statute is to have their wages .paid out of the funds in the hands of the receiver upon which no lien exists. 97 Ark. 534.

      O. W. Rogers, for appellee.
    Appellant lost its lien acquired by attachment when it failed to have the attachment sustained when it took judgment. 80 Pac. 422;-67 Ark. .261; 135 Pac. 885.

      The statutes give laborers preferred claims for their, wages. C. & M. Dig., §§ 1798-1800; 96 Ark. 556; 64 Ark. 132; 7 R. C. L. 768; 26 Cyc. 1072-H; 34 Cyc. 349-III.
    The preference given laborers by the statute is superior to a lien acquired by attachment. While this question has not been decided by our court, it has been so held by the Missouri courts under a similar statute. 65 Mo. App. 329; 117 U. S. 434; 106 IT. S. 286; 97 U. S. 146; 103 N. T. 245; 103 Mo. App. 398; 138 Mo. 430.
    Attachment liens do not affect prior rights of third parties. 58 Ark. 252. An attaching creditor acquires no greater right in attached property than defendant has at the time of attachment. 3 Pac. 647.
    The appointment of a receiver does not affect the vested rights of any party, but merely changes the remedy.
   Hart, J.

(after stating the facts). The decree of the chancellor was correct. Sections 1798-1801 of Crawford & Moses’ Digest nrovide for the procedure for the winding ut> of the affairs of insolvent corporations and the distribution of their 'assets to their creditors.

Sec. 1798 provides that no preference shall be allowed among the creditors of insolvent corporations except for wages and salaries of laborers and employees

Sec. 1799 provides that any creditor of such insolvent corporation may institute proceedings in the chancery court for the winding up of its affairs and the distribution of its assets among the creditors after paying the wages and salaries due- laborers and employees.

Sec. 1800 provides that every preference obtained or sought to be obtained by any creditor of such corporation, whether by attachment, confession of judgment or otherwise, shall be set aside by the chancery court, and such creditor shall be required to relinquish his preference and accept his pro rata share in the distribution of the assets -of such corporation, provided that no such preference shall be set aside unless complaint thereof be made within ninety days after the same is given or sought to be obtained.

The attachment in favor of appellant was issued and levied on the 20th day of September, 1917. The laborers and employees of the company filed their claims with the receiver within three months thereafter, and asked that the preference by attachment obtained by appellant be set aside.

The receiver allowed the claims of the laborers and employees of the company and classed them as preferred claims. He made his report thereof on the 6th day of Decembér, 1917. This all occurred within three months after the preference by attachment was obtained by the appellant.

Hence the chancery court correctly held that the preference sought to be obtained by appellant by the issue and levy of the attachment should be set aside.

A decree was entered accordingly, and it follows that the decree must be affirmed.


text:
    Tri-State Packet Company v. G. R. Brickey Mercantile Company.
    Opinion delivered December 5, 1921.
    1. Shipping — harter shipping act — construction.—The1 act of Congress of February 13, 1893, for the regulation of commerce and navigation, applies to domestic voyages.
    2. Shipping — liability of shipowner — burden of proof. — Under act of Congress of February 13, 1893, providing that “if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make said vessel in all respects seaworthy and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charters, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel,” held that the burden is on the shipper to prove that the shipowner failed to carry freight and deliver it to the consignee; but the burden is on the shipowner to show that the loss or damage complained of resulted from faults or errors in navigation or in the management of the vessel.
    3. Pleading — issues, proof and variance. — Where a suit against a shipowner alleged, and was tried upon the theory, that plaintiff’s freight was lost in transit, and it was submitted to the jury upon that theory, it is immaterial that the complaint also alleged that the freight was delivered to a third person who converted the same to his own use.
    4. Pleading — admission—effect.—The admission by plaintiff in its complaint that defendants’ vessel was properly manned and seaworthy did not operate as an admission that the. boat was properly loaded or that the loss of plaintiff’s freight in transit was due to one of the excepted causes.
    Appeal from Mississippi Circuit Court, Osceola District ; R. H. Dudley, Judge;
    affirmed.
    STATEMENT OE EACTS.
    Gr. R. Brickey Mercantile Company sued the TriState Packet Company to recover damages for the loss of two bales of cotton shipped by the plaintiff on one of the boats of the defendant from Osceola, Ark., to Memphis, Tenn.
    The agent of the packet company at Osceola testified that he loaded the cotton on one of the defendant’s boats at Osceola and issued a bill of lading therefor. The cotton was shipped on the Helen Blair, which was duly licensed to operate on the Mississippi River, and it was admitted by the plaintiff that the boat was properly manned and was seaworthy.
    According to the testimony of the manager and head clerk of the Helen Blair at the time the cotton in question was shipped, he knew nothing about the shipping of the cotton. His record showing the cotton shipped on that trip does not show the two bales in question. He had no knowledge as to whether the two bales in question were actually placed on the boat or not. They were not on the boat when it reached Memphis. The defendant has never been able to locate the cotton sued for. On that trip the river was rough and rolling on account of tlie winds. There was stormy weather during the entire trip, and a bale or' two of cotton might have rolled into the river before the boat got to Memphis. The plaintiff also proved the value of the cotton.
    There was a verdict and judgment for the plaintiff, and the defendant has appealed.

      J. T. Goston, for appellant.
    Plaintiff admits that the steamer was properly manned and was seaworthy, therefore defendant was exempt from losses resulting from faults or errors in navigation or in the management of the vessel or losses arising from dangers of the sea or other navigable water. U. S. Comp, ¡átat. 'j bói.; M3 Pod. 146. The loss is bound to have occurred through faults or errors in navigation or in the management of the vessel, or from dangers of the river, thereto"o liability is not only proven but is disproved. 201 U. S. 386; 191 U. S. 7.
    The burden was on the plaintiff to show what became of the cotton. It recognized this fact by allowing the court, without objection, to so instruct the jury.
    As to what is meant by error or fault in navigation and management of a vessel, see the following cases: 92 Fed. 671; 104 Fed. 154; 96 N. E. 604; 64 Atl. 914; 109 N. W. 84.
    The vessel being admitted to be seaworthy and properly manned, and it being shown that the cotton was properly loaded, there is nothing under the terms of the Harter Act upon which to predicate liability.
    Instruction No. 4 ignored the provisions of the Harter Act exempting the defendant from liability under conditions of that act and made defendant absolutely liable, no matter what caused the loss. The instruction was not only erroneous, but in conflict with No. 5.
    Instructions should be harmonized, else they will confuse and mislead the jury. Saekett’s Instr. to Juries, § 28. p. 95 • 85 TIL 194; 55 Ark. 397; 65 Ark. 68; 57 Ark. 203; 147 S. W. 90.

      Driver S Simpson, for appellee.

      The Harter Act does not relieve the shipowner of liability for improper loading, care, handling and delivery of a cargo. 108 Fed. Rep. 886; 124 Fed. Rep. 3; 89 Fed. 528; 92 Fed. Rep. 670.
    The burden of proof to show proper loading, handling, etc., is upon the appellant. 82 Fed. Rep. 679; 4 Fed. Stat. Ann. 863. There was even a denial that the cotton was ever on the boat, and at most only a 'bare statement that it was put on the 'boat. Certainly this evidence would not of itself alone establish the fact that the cotton was properly loaded.
    The verdict and judgment were right, as appears by the undisputed evidence, and the court need not and will not, on appeal, determine whether1 the instructions given were correct.

      J. T. Goston, for appellant, in reply. .
    The Harter Act applies to domestic voyages. 179 U. S. 76; 86 .Fed. 671.
    The complaint alleges that the cotton actually reached Memphis, and was confiscated there by "Wilson-"Ward Co. How can they now be heard to say the cotton was not properly loaded? A ground of relief not raised by the pleadings cannot be considered on appeal. 99 S.W. 687.
    Instruction No. 5 was abstract and misleading, and the giving thereof ground for reversal. 132 S. W. 1000.
   Hart, J.

(after stating the facts). The suit was brought under the act of Congress of February 13, 1893, for the Regulation of Commerce and Navigation. II. S. Compiled Statutes, 1916,’ Ann. vol. 7, §§ 8029-8031; Barnes, Federal Code, 1919, §§ 7237-7239.

In Knott v. Botany Mills, 179 U. S. 69, it was held that domestic voyages come within the provisions of the act.

The first section of the act of Congress above referred to provides that clauses in bills of lading relieving the owner of any vessel transporting merchandise or property as provided in the act from liability for negligence, etc., are prohibited. The third or last section of the act provides that “if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel. ’ ’

In the interpretation of these sections of the act as applied to the facts of the case, the court gave, over the objections of the defendant, the following instructions:

“4. If you find from a preponderance of the evidence that the two bales of cotton here sued for were delivered to the defendant company at Osceola landing and received by the company, then it was the duty of the defendant company to carry and deliver said cotton to the Eainer & Connell Company, consignee, at Memphis. And if you find from the evidence the defendant company did receive the cotton and failed or refused to so deliver the same, then you will find for the plaintiff for the market value of the cotton at Memphis at the time it should have been delivered there, together with interest at six per cent, from October 11, 1919.”
“5. You are further instructed and it is agreed that lbe Helen Blair was seaworthy and properly manned. So, if you find the cotton was properly loaded on the boat and lost before the boat reached Memphis on account of any fault or error in navigation, or in the management of the boat, or on account of the danger of the river, if any, produced- by heavy winds, then you will find for the defendant.”

The court then instructed the jury that the burden of proof on the whole case was upon the plaintiff.

Counsel for the defendant insists that the judgment should be reversed on account of the conflict between instructions four and five. He claims that, because the defendant admitted that it had failed to deliver the cotton to the consignee, instruction number four was a peremptory instruction for the plaintiff. "We do not agree with counsel in this contention. The burden of proof was upon the plaintiff to prove that the defendant had failed to carry the cotton and deliver it to the consignee. Without making this proof, the plaintiff could not recover at all. Under the statute, there are certain exceptions to tlie general rule of liability. The burden of proof to show that the case.came within one of the exceptions was upon the defendant. Where goods are received in good order on board of a vessel under a bill of lading agreeing- to deliver them at the termination of the voyage in like good order and condition, and the goods, are damaged on the voyage, in a proceeding to recover for the breach of the contract of affreightment, after the amount of damage has been established, the burden lies upon the carrier to show that it was occasioned by one of the perils for which it was not responsible. The Folmina, 212 U. S. 354.

In the present.case it was admitted by the plaintiff that the Helen Blair was properly manned and was seaworthy. The evidence for the plaintiff showed that the cotton was loaded on the boat, and it was admitted that it was lost before the boat reached Memphis.

It was shown by the defendant that the water was rough and rolling on account of the winds. There were 512 bales of cotton on the boat. Instruction number five properly placed the burden of showing that the damage arose from one of the excepted causes upon the carrier. It, in effect, told the jury that it must find that the cotton was properly loaded on the boat before it could find for the defendant on account of any of the excepted causes. Thus we see that there was no conflict between instructions number four and five. Instruction No. 4 properly predicated the right of the plaintiff to recover upon its showing a failure of the defendant to deliver the cotton to the consignee.

The packet company defended the suit on the ground that the loss of the cotton resulted from one of the exceptions to the general rule of liability, and instruction No. 5 told the jury that the burden was upon the carrier to establish this defense. The instructions thus dealt with different phases of the case and were in harmony with each other.

Counsel for the defendant also claims that, because the complaint alleges that the cotton was loaded on the boat and delivered to the defendant, Wils on-Ward Co., which had converted the same to its own use, the plaintiff cannot recover <on the ground that the cotton was not property loaded on the boat.

It is true that' the complaint contains the allegation just referred to; but it also contains another paragraph in which it is alleged that it had delivered the cotton to the Tri-State Packet Company for shipment to Memphis to Bainer & Connell Company, and that the defendant, Tri-State Packet Company, failed to deliver the cotton to the consignee or to account to the plaintiff for the value thereof. The case was tried on the theory that the cotton was lost in transit, and it was. submitted to the jury on this theory. As we have already seen, the burden was on the defendant to show that the cotton was properly loaded on the boat, and that it was not lost on account of any error in navigation or on account of the danger of the river caused by heavy winds.

The admission by the plaintiff that the boat was property manned and was seaworthy, did' not also operate as an admission that the boat was properly loaded, or that there was no error in navigation, or in the management of the boat on the trip. The boat might have been property manned and yet not property navigated during the trip. Neither did the admission that it was seaworthy show that the boat was property manned during the trip, or that the loss of the cotton was necessarily caused by the dang’er of the river from the heavy winds.

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


author: Smiti-i, J.

text:
    Markstein Brothers Millinery Company v. J. A. White & Company.
    Opinion delivered December 5, 1921.
    1. Customs and usages — local customs. — Proof of a local custom is insufficient to establish a usage of trade with reference to which all dealers are presumed to have contracted.
    2. Sales — right to return goods. — Where defendants sent an unconditional written order for hats, having a verbal understanding with the salesman that defendants should be allowed the privilege of returning to the plaintiff all unsold goods at the end of the season, and plaintiffs shipped the hats with a special notice that “no goods will be accepted for return unless returned within 5 days after receipt of goods”, defendants had the election to return the goods within five days or to keep and pay for them.
    3. Principal and agent — authority op traveling salesman.— In the absence of special authority, the authority of a traveling salesman is limited to receiving and transmitting orders.
    Appeal from Nevada Circuit Court; George R. Eaynie, Judge;
    reversed.

      E. E. Rouse, for appellant.
    1. The authority of a drummer is to take orders and submit them to their employers for approval. If he claims authority in excess of soliciting orders, he must prove it. 101 Ark. 68. Dreher, it is shown, had no authority to make the agreement with reference to the return of the goods; but, if he made such agreement, it was an unauthorized act which was never ratified by appellant. 64 Ark. 217; 105 Ark. 512; 76 Id. 472; 2 C. J. L. § 116. The finding of fact by the trial court that Dreher made the agreement is not a finding that the act was authorized, or that appellant accepted the order and shipped the goods with knowledge of the agreement, and thereby ratified the act, and that finding is not conclusive of these issues. 79 Ark. 357; 97 Id. 620, 621.
    2. The burden of proving the alleged custom or usage was on the appellee, and knowledge thereof must be brought home to the appellant. 118 Ark.-316; 176 S. W. 318; 97 Ark. 613, 319; 62 Id. 33; 81 Id. 550.
    A local custom or usage must be specially pleaded, and it must be proved specifically that the party to be charged knew of the custom and contracted with reference to it. 2 Elliott on Contracts, § 1786 and note 62; 54 N. E. 890; 89 Ark. 595.
    3. The time for inspection and return of the goods was fixed by the notice accompanying the invoice. If the time limited in the notice, five days, was not sufficient, appellees must, at least, have exercised their right to return within a reasonable time. 230 S. W. (Ark.) 9-.

      Randolph Hamby, for appellee.
    Aside from the question of custom, the fact that appellant’s agent had previously sold the same character of goods to appellee upon the same terms and conditions as contended for in this case, and that appellant had assented thereto or at least not disavowed, was such course of dealing that the agent thereby derived apparent authority to continue such contracts, at least until notice to appellee of a discontinuance of such authority. 21 R. C. L. 855; 34 L. R. A. (N. S.) 440; 142 Ark. 565; 21 R. C. L. 907; 59 L. R. A. 294.
   Smiti-i, J.

This suit was brought to recover the purchase' price of eighty-six hats bought by appellees from appellants, amounting to $165.05. The order therefor was given by appellees to one Dreher, a traveling salesman for appellants. Appellees admit giving the order and receiving the hats, but defend upon the ground that the purchase was made upon the condition that a reasonable opportunity should be given to sell the hats and thereafter the unused hats might be returned and credit therefor given on the bill. There was testimony that it was the custom in Prescott, where appellees did business, to buy hats from commercial salesmen on these terms, and appellees offered testimony that Dreher had sold hats to them and to another merchant on these terms.

It is admitted, however, that at the time Dreher is alleged to have sold hats on the terms stated he did not represent appellant company, but was traveling for another hat manufacturer, and, so far as the testimony in regard to custom is concerned, it may be said that this testimony showed only a local custom at Prescott, and did not go to the extent of showing a usage of the trade, with reference to which all dealers would be presumed to have contracted. Calhoun v. Ainsworth, 118 Ark. 316; Exchange National Bank v. Little, 111 Ark. 263; Cage v. Black, 97 Ark. 613; City Electric Street Ry. Co. v. First National Exchange Bank, 62 Ark. 33; Ward Furniture Co. v. Isbell, 81 Ark. 549.

The order for the hats was received by appellants on December 14, 1918, and, as received, was an open order for a selection of hats amounting to $150. A copy of this order was left with appellees, and the original was sent to appellants. The order, as written by Dreher and as received by appellants, made no mention of any agreement in regard to the terms of the sale and was apparently an open order for hats.. Appellants acknowledged the order as an open selection order, and in conformity therewith made a selection of hats amounting to $156.05, and the hats were shipped on that date. On the day of shipment appellant mailed to appellees an invoice of the hats shipped, in which appeared the following:

“Special notice: — These goods were made expressly for you. We have been put to expense of paying labor and cutting materials for your order. We will under no conditions accept the return of any goods.” And in the envelope with the invoice was a notice printed in large red letters stating that,

“OWING TO THE LOSS CAUSED BY “UNJUSTIFIABLE RETURNS

“The National Millinery Association has adopted rules as follows:—

“ ‘No goods will be accepted for return unless returned within 5 days after receipt of goods.’

(Signed)

“Markstein Bros. Millinery Co.

‘ ‘Birmingham, Alabama. ’ ’

Appellees received the goods, sold what they could, and on May 10, 1919 — which was seventy days after their receipt — returned $51.33 worth of hats with a check for $104.72. Appellants refused to receive either the hats or the check and returned both.

Dreher denied that he had sold hats upon the condition that any part of the order might be -returned-later than five days after their receipt; but the court, sitting as a jury, found “that the defendants are not indebted to the plaintiff in the sum of $51.33, for the reason that, by agreement with William J. Dreher, the salesman of the plaintiff, the defendants were allowed the privilege of returning to plaintiffs, at the end of the 'season, all goods unsold, and did return them, but plaintiffs refused to accept them.”

In view of this finding, we must -assume the fact to be that Dreher agreed that unsold goods might be returned; but this finding is not conclusive of the case.

It is undisputed that the order, as transmitted to, and as received by, appellants, did not contain this condition. It is also undisputed that the hats were not shipped under this condition. Upon the contrary, the invoice for the goods, as well as the notice accompanying it, expressly stated that the sale would become absolute after five -days- The five days were given for inspection and approval. During that time all or any part of the order might have been returned, for such was the effect of the writing set out above. Upon discovering that the hats had not been shipped in accordance with the agreement made with Dreher, appellees had the right to return them on that account, even if the invoice had not contained that recital. But, upon discovering this discrepancy, appellees should either have returned the entire order, as they had the right to do, or they should have kept the hats and paid for them. Cage v. Black, 97 Ark. 613; American Hardwood Lbr. Co. v. Milliken-James Hardwood Lbr. Co., 140 Ark. 544; Standard Sewing Machine Co. v. Rainwater, 146 Ark. 81; Crockett v. McClure Co., 136 Ark. 128; Southern Eng. & Boiler Works v. Globe C. & L. Co., 98 Ark. 482; Pratt v. Meyer, 75 Ark. 206; Carrigan v. Nichols, 148 Ark. 336.

No effort was made to show that Dreher had any authority beyond that of the ordinary traveling salesman; and the authority of one acting in that capacity is to receive and transmit orders. Lee v. Vaughan's Seed Store, 101 Ark. 68; United States Bedding Co. v. Andre, 105 Ark. 111.

Appellants had the right to refuse to accept and fill this order; and they also had the right to ship the goods subject to five days’ approval.

In view of the court’s finding, the presumption would be indulged that the shipment had been made upon tiie condition testified to by appellees, if the testimony did not show that the hats had not been so shipped. But there is no issue of fact on this question. The undisputed testimony shows that the hats were shipped on condition that the sale would become absolute if the hats were not returned within five days after their receipt. Appellees did not exercise their right to return the hats, and the obligation to pay became complete mid binding after the expiration of five days.

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


author: Smith, J.

text:
    Mitchell v. Ozan-Graysonia Lumber Company.
    Opinion delivered December 5, 1921.
    Negligence — care as to licensees. — One who, for his own pleasure merely, undertakes to use a private passage-way over another’s premises is a mere licensee, and takes his license with its accompanying perils.
    Appeal from Nevada Circuit Court; George B. Haynie, Judge;
    affirmed.
    J. O. A. Bush, for appellants.
    The defendant is liable under every element of the rule announced by the court in the case of Alfrey Heading Company v. Nichols, 139 Ark. 467. On the question of invitation or inducement, see 20 R. C. L., 57, § 52; Id. 65, § 57. There was no notice of the extra danger created by the temporary beam. 89 Ark. 128. Plaintiff was going to the office of defendant for the purpose of selling a load of watermelons, — on business with the company — and he comes within the rule of an invited customer. 104 Ark. 243.
    Contributory negligence does not enter into this case. In any event it could not be imputed to plaintiff’s wife, who had nothing to do with driving the wagon, and no control over its management. 72 Ark. 572; 100 Id. 76; 90 Id. 485; 188 Id. 484; 59 Id. 480; 38 L. R. A. (N. S.) 754; 20 R. €. L. 158, § 132.

      Tompkins, McRae S Tompkins, for appellee.
    The undisputed facts, viz., that a few months before the injury the defendant had large signs painted and put up at both sides of the passageway; that deceased had never gone through the passageway before, and that her husband, who drove the wagon, had not gone through there for about two years, eliminate any question of implied invitation. The Nichols case, 139 Ark. 467, is not applicable here, but this case falls within the principles announced in the Payne ease, 103 Ark. 226; 119 Ark. 246; 114 Ark. 218. Appellants were using the way solely for their own convenience, and, such being the case, were mere licensees, even though no notices had been put up forbidding its use. Owing no affirmative duty of care, it could not be expected to maintain watchmen to forbid the use. 20 E. O. L., § 53. Defendant had the right at any time to recall the license, if it ever existed, and forbid the use. 49 Ark. 357; 122 Id. 168-178.
   Smith, J.

This appeal is from a judgment rendered upon a directed verdict, and the facts stated most favorably to appellant, who has sued for damages for the death of his wife, are as follows: Appellee — defendant below — constructed a sawmill near a pond of water, where it received logs for the mill. Between the mill and the pond there is an open driveway, and over this driveway was a chute upon which logs were brought from the pond into the mill; and also another chute through which waste material was conveyed by an endless chain from the mill. This tramway or chute had been maintained since the construction of the mill and for a period of twenty-five years. Sometime before the occurrence of the injury out of which this action arose, appellee constructed a temporary incline just north of the permanent one over which logs could be conveyed to the mill. The overhead beams of this temporary incline were lower than those of the permanent incline. There were three of these temporary beams, two of which were seven feet above the ground, and the third was six feet four inches above the ground. These beams viere level, but the ground was undulating, and this fact accounts for the difference in the intervening space between the beams and the ground. The employees of the company and all persons having business with them or with the company used this passageway, and had done so for many years. Wagons and other vehicles had used this passageway for many years, and there was a beaten road there.

On August 16, 1920, appellant and wife were in ? wagon, coming from the south, and they drove under this structure. They passed safely under the first two beams, 'but, as they drove under the third, Mrs. Mitchell’s head came in contract with the last and lowest beam, and she received injuries from which she died eight days later after suffering great pain. The appellant and his wife were on their way to the mill-yard for the purpose of peddling watermelons to the employees and their families, and the injury occurred about noon.

Over this passageway, on each side, was a sign on which was printed in large letters, “Don’t drive under.” This sign had been put up a few months before the injury, but the public use of the passageway was not discontinued on that account. The beam which deceased struck was put up for the purpose of moving sunken logs, and, as has been said, was of a temporary character.

Mrs. Mitchell had never driven through this passageway before, and appellant had never driven through after the erection of this temporary structure, but had driven through before its erection. Persons could go or drive upon appellee’s premises without using this passageway, but the distance was much shorter by using it.

We think the verdict in this case was properly directed for appellee under the facts stated. Appellant and his wife were not trespassers, but they were merely licensees. We think it cannot be said that appellee had invited the use of this passageway. Upon the contrary, the notice posted at each entrance forbid the use of the passageway by the public. It is true the testimony does show that this notice was not obeyed, and that the inhibition of the notice was violated so openly and constantly that tbe jury would no doubt have found that appellee knew it was not observed. But appellee was not required to place a watchman there, and its failure to do so cannot be said to be an implied invitation to thus use its premises.

It is true, as shown by the testimony, that after the public had long used the passageway under the permanent tramway, a temporary structure was erected. But 'appellee had the right to do this. The public made no use of this tramway; they had only been accustomed" to. passing under it, and the-persons who did so were mere licensees, to whom appellee owed no affirmative duty of care and as against whom appellee had the right; at any time, to withdraw the license. As has been said ni a number of our cases, these licensées took their license with its concomitant perils, and appellee is not liable for the injury here sued for. Alfrey Heading Co. v. Nichols, 139 Ark. 462; C. R. I & P. C. v. Payne, 103 Ark. 226; S. L. I. M. & S. R. Co. v. Duckworth, 119 Ark. 246; St. L. I. M. & S. R. Co. v. Pyles, 114 Ark. 218.

The judgment is affirmed.


author: Humphreys, J.

text:
    Jackson v. Jackson.
    Opinion delivered December 5, 1921.
    Divorce — custody op child. — -An order in a decree of divorce awarding the custody of a child to one of its parents is a final order and cannot he changed without proof showing a change in circumstances from those which existed at the time the original order was made.
    Appeal from Ouachita Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      Powell & Smead, for appellant.
    The court erred in awarding the custody of the child to plaintiff, without first taking proof showing justification for the change. 124 Ark. 579; 146 Ark. 362.

      Thos. W. Hardy, for appellee.
    The decree of the chancery court was not final. The chancery court has the right and power' to control the custody of a minor child in a contest brought before it. 37 Ark. 30; 106 Ark. 203. The court may also order a change of custody for good cause. 118 Árk. 582; 123 Ark. 242; 124 Ark. 579; 146 Ark. 366; 106 Ark. 203.
    The father, unless incompetent and unfit, is the natural guardian and entitled to the custody of his minor child. 32 Ark. 96; 95 Ark. 358; 37 Ark. 30.

      Where thé evidence is sufficient, the findings of a chancellor will not be. disturbed. 95 Ark. 482; 73 Ark. 489; 90 Ark. 166. Where the evidence is conflicting, his findings will not be set aside, unless clearly contrary to the weight of evidence. 84 Ark. 429; 85 Ark. 83; 98 Ark. 287.
   Humphreys, J.

This is an appeal from a decree of the Ouachita Chancery Court transferring the custody of Thurman Jackson from appellant, in whom the custody of the child was placed in a divorce proceeding on September 18, 1919, to appellee. The decree of date September 18, 1919, awarding the custody of the child to appellant was rendered in an action brought by appellant against appellee for a divorce and custody of the child, to which appellant filed an answer and cross-bill for divorce. In that case the court dismissed the bill and cross-bill for want of equity, and awarded the custody of the child to appellant until the further orders of the court, with the privilege to appellee of seeing and visiting the child at all reasonable times and hours, on which visits appellee and appellant were ordered to deport themselves in a proper manner and to say or do nothing which would cause the child to think less of either parent.

Appellee’s petition, filed on the 7th day of April, 1920, for a change or transfer of the custody of the child from appellant to him contained allegations for divorce, which appellee, on motion, was permitted to withdraw. The remaining allegations were, in substance, to the effect that appellee was better able and situated to take care of and educate the child than appellant. The answer filed by appellant controverted this allegation in the petition.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree awarding the custody and control of the child to appellee, with the direction that it should visit and stay with appellant from the 1st day of June until the 1st day of September and from tbe 20th day of December to the 31st day of December each year.

There is no conflict in the testimony of the witnesses. The record reveals that appellee and appellant separated on the 12th day of June, 1918; that the mother retained the custody of and supported the clrild; that the father never visited the child until December, 1919; that the father filed suit for divorce and custody of the child, to which the mother filed an answer and cross-bill; that the suit was. heard and dismissed by the court in September, 1919; that at the time a decree was rendered awarding the custody of the child to the mother until further orders of the court, which contained directions and orders as heretofore set out; that after the order was made the mother and child resided with Jeff Wells, her brother-in-law, as a member of his family. Mr. and Mrs. Wells were and are willing for her and her child to live with them. While residing there, her two brothers assisted her. The two brothers, E. L. Shirey and George Shirey, aiso were and are willing for appellant and her child to make their home with them and to support her and the child. E. L. Shirey lives at Louann, where he is postmaster and engaged in the mercantile business. At the time of the trial appellant was residing with her brother, George Shirey, about seven miles from Camden, and about three miles from a consolidated school which furnishes a conveyance to take the children back and forth to school.

After the separation appellant taught music for a livelihood and did the sewing for herself and child. Prom her earnings she had been able to support and maintain herself and child. She has at all times kept the child with her and administered to his needs personally. During the time she was residing with Mr. and Mrs. Wells, appellee visited the child three times, the first time in December, 1919, again in January, 1921, and again in June, 1921. He took a friend with him on each occasion for the purpose of using him as a witness in case it became necessary. On the first visit appellee offered the child a toy gun, which appellant handed back to him, saying that she had supported the child up to that time without his help and she did not care for it then. Their conversation indicated that both were angry.

On the second visit the father found the child in the kitchen with the mother and offered him a nickel if he would come to him. The mother said, “Don’t give him a nickel. You have never given him anything to help support him, and I don’t feel like taking a nickel this late day.” They repaired to the sitting room, where the father took the child and held him in his lap. He called the child “son,” which caused the mother to say, “Charlie, if I had talked about a woman like you have about me, I would not be sure that Thurman was my son.” Mr. Wells advised her not to talk that way, and no further conversation was indulged in between them.

On the third visit, in June, 1921, the father was unable to see the child because he ran away from him.

During the trial of the cause, at the noon recess, the child refused to go to the father, and fought at him as well as his grandmother Jackson when they tried to take him and kiss him.

Appellant attempted to explain her conduct toward appellee on the occasions of his visits on the ground that he had traduced her character, 'and on that account she held him in contempt; that at the time she did not understand the decree prevented her from saying and doing what she did; that, after consulting her attorney, she concluded that she had done wrong and was then willing for the father to visit the child and to render such assistance as he desired in maintaining and supporting him.

During the time intervening between the first and second suits appellee worked for a time in Red River bottom, then in Camden, then in St. Joseph, Mo., then in Camden, then in Thornton, then in Zenoria, La., and then in Thornton again.

At the time the court heard the motion for a transfer of the custody of the child appellee was strong, healthy, bore a good character, had a permanent position at a sawmill which yielded him $100 per month, and had a home with his sister at Thornton, Arkansas, where the child could be cared for by himself and his sister and sent to a good school within two blocks. He also had the privilege of taking the child and leaving it with his father and mother at' Oamden, where the child could and would receive proper attention and instruction and enjoy the best of educational advantages.

Appellant insists that the court erred in award-, ing the custody and control of the child to the appellee. This court ruled, in the case of Weatherford v. Taylor, 124 Ark. 579, that an order depriving a parent of the custody of a Child for any length of time was a final order from which an appeal might be prosecuted, and that an order awarding the custody of a child to one of the parents could not be changed without proof showing a change in circumstances from those which existed at the time the original order was made. Heferring to the original order made in that case, the court said: “The original decree constituted a final adjudication that appellant, and not appellee, was the proper one to have the child, and before an order can be made changing the status there must be proof on the subject justifying the change.” The rule was reannounced in the recent case of Nelson v. Nelson, 146 Ark. 362.

Since the rendition of the original decree in the instant case, the Legislature has, by act, changed the rule that the father, unless incompetent or unfit, is the natural guardian of his minor children and entitled to have their custody and the care of their education. Section 3 of the act 257 of the Acts of Arkansas of 1921 reads as follows: “Where the husband and wife are living apart, there may be an adjudication of the court as to their power, rights and duties with respect to the persons and property of their unmarried minor children. In snob, cases there shall be no preference between the husband. and wife, but the welfare of the child must be considered first in determining the custody of such child, or the control of its property. Pending such adjudication the court may award the custody of the child and the control of its property to the father, or the mother, as may be to the best interest of all concerned, regarding the interest of the child as of the first importance.”

It is specifically provided in that act that in awarding the custody of a child no preference shall be made between the husband and wife, but the welfare of the child must be considered first in determining the custody of such child.

The rule of law governing the custody of children as between father and mother was more favorable to the father when the original decree was rendered than when the court heard the petition to change the custody of the child. There was no change in the ability of the parties to care and provide for the child. Neither had a home of his own to which he could take the child, but was dependent upon the generosity of relatives who kindly opened their homes to them. The father’s earning capacity was ample to maintain and educate his child; likewise the mother’s. A strong attachment existed between the child and mother, but not between the child and father. The mother’s conduct had tended to alienate the affection of the child from the father, but she agreed to change her conduct in this respect and teach the child to love and respect the father, saying that her conduct theretofore was due to the fact that she felt a contempt for the father on account of charges he had made against her; that, at the time she said and did things calculated to alienate the affection of the child, she did not understand the decree prohibited her from doing so. The father cannot be held blameless, however, for the lack of affection existing between Mm and his child. He showed little interest in it after the separation. He did not visit the child for eighteen months after the separation, and, although the original decree permitted him to visit it at all reasonable times, he only visited it three times in as many years. During the entire separation he never contributed anything towards its support. It is true the child was two years older, but at the time the court heard the petition for the change in custody it was still of tender age, and, on that account, needed the special care and attenlion of the mother which had been so willingly bestowed upon it in the past.

A change of custody was not necessary in order to prevent the mother from alienating the affections uf the child from the father. ' This might have been done by admonishing the mother, if coupled with a real desire on the part of the father to regain the lost affection of his child. The mother offered to change her attitude toward the father, so far as the child was concerned, and an opportunity should have been given her to teach the child to honor and respect the father. Tiie father, having been delinquent in manifestation of interest in the child, should have been admonished to assist the mother in this regard by frequently visiting the child and contributing a reasonable amount towards its support.

We do not think the evidence revealed any material cnange in the condition of the parties subsequent to the first decree, or that-the proof showed a justification t'or the change of the custody of the child. The decree is therefore reversed, and the petition for the change of the custody of the child is dismissed.


text:
    Miller Rubber Company v. McKennon.
    Opinion delivered December 5, 1921.
    1. Corporations — preference by insolvent corporation.-'-A rubber company sold tires to an insolvent corporation on credit -without reserving the title. On a failure of the corporation' to pay for them, it was agreed that the title to the tires should revert to and remain in the rubber company until the entire purchase money should be paid. Held that such agreement was an attempt by an insolvent corporation to prefer one creditor over another, which is prohibited by Crawford & Moses’ Dig., § 1789.
    2. Appeal and error — presumption in pavor op decree. — -Where, in a proceeding by a creditor to wind up an insolvent corporation, appellant' intervenes claiming a preferential right to certain assets of the corporation, and another creditor, within 90 days from the giving of such preference, filed an answer to the intervention, but the answer does not appear in the transcript, it will he presumed, on appeal from a decree setting aside the appellant’s preference, that the answer omitted from the transcript attacked the validity -of such preference.
    Appeal from Sebastian Chancery Court, Ft. Smith District; J. V. Bourland, Chancellor;
    affirmed.

      Fad jo Cravens and Ira D. Oglesby, for appellant.
    An insolvent debtor may prefer one creditor, over another, if the transaction is in good faith and the consideration is not palpably inadequate. 56 Ark. 414; 28 Id. 32; 31 Id. 666; 26 Id. 20; 12 R. C. L., par. 91 and 95. The rule applies to corporations as well as to persons. 59 Ark. 562. The burden is on the protesting creditor to establish fraud. 18 Ark. 123. A pre-existing debt affords a good consideration for a preference by an insolvent debtor. 20 S. W. (Ark.) 807; 63 Ark. 232; 56 Id. 414.
    A contract for the sale of personal property whereby the seller retains title until the purchase money is paid, is valid and binding. Sternberg v. City National Bank, 149 Ark. 432.

      Webb Covington and James B. McDonough, for appellee.
    1. The attempted contract is void because not made by the directors of the company. 36 Ark. 178; 47 Id. 269; 109 Id. 584; 62 Id. 7; 79 Id. 45; 71 Id. 358; 37 Id. 164; 55 Id. 473; 54 Id. 58; 103 Id. 283; 84 Id. 44; 62 Id. 33.
    2. The Fort Smith Tire & Rubber Company was insolvent on and before March 17, 1921. The statute, C. & M. Digest, § 1798, declares against any preference among creditors of insolvent corporations, and § 1800, Id; makes every snob preference absolutely void. As to what constitutes insolvency, see 63 Atl. 1097; 29 Fed. Cases, 637; 54 U. S. 57; 9 N. Y. 594; 87 S. W. 898.
    3. On appeal, and in the absence of a showing that the record contains all of the evidence, it will be presumed that the facts were sufficient to justify the finding of the trial court. 129 Ark. 193; 128 Id. 39; 144 Id. 436; 145 Id. 435; 146 Id. 232.
   Humphreys, J.

This is an appeal from a decree of the Sebastian Chancery Court, Fort Smith District, denying the prayer of an intervention by appellant for automobile tires, or the proceeds thereof, sold to the Fort Smith Tire & Rubber Company, which intervention was filed by appellant in a suit instituted by Charles McKennon against the Port Smith Tire & Rubber Company in said court to conserve its assets for the benefit of its creditors and stockholders and to prevent further dissipation of its assets through the alleged reckless and extravagant management of its affairs by its officers. The suit instituted by Charles McKennon on the 21st day of April, 1921, against the Fort Smith Tire & Rubber Company was a proceeding, according to the allegation of the bill, in effect, against the corporation by a stockholder under the insolvency act in this State of date April 14, 1893, and digested as sections 1798 to 1800, inclusive, of Crawford & Moses’ Digest of the Statutes of Arkansas. The prayer of the bill filed in the insolvency proceeding was for. the dissolution of the corporation and the appointment of a receiver to take charge of the assets and distribute the proceeds thereof among creditors as their right might appear. A short time thereafter a receiver was appointed, who qualified and took charge of the assets and affairs of said corporation.

The intervention filed by the appellant in the insolvency proceeding, in substance, alleged that on the 17th day of March, 1921, it sold automobile tires to the Fort Smith Tire & Rubber Company in the sum of $10,151.66, retaining the title to same until the full purchase-price was paid, and that only $1,719.07 had been paid on the purchase price of said tires, leaving a balance due appellant in the sum of $8,132.59; that a large number of the tires were in possession of the receiver appointed by the court to take charge of the assets of the Fort Smith Tire & Rubber Company. The intervention was filed on the 27th day of April, 1921, and prayed that the receiver be ordered to deliver the tires remaining in his possession to appellant.

Charles McKennon, who instituted the proceedings of insolvency, died, and the suit was revived in the name of Leta McKennon, administratrix of the estate of Charles McKennon, deceased.

. Preliminary orders were made, directing the receiver to notify all creditors of the Fort Smith Tire & Rubber Company of the pendency of the suit and intervention of the appellant, and to appear and file any claims they might have against the Fort Smith Tire & Rubber Company on or before the 17th day of May, 1921; also to make an inventory of all the property and to separate the tires claimed by appellant from the other assets.

The Arkansas Valley Bank, of Fort Smith, a large creditor of the Fort Smith Tire & Rubber Company, filed an answer contesting the right of appellant to possession of the tires under its alleged contract of date the 17th of March, 1921, with the Fort Smith Tire & Rubber Company, in which the title to said tires was retained in appellant until the purchase price thereof was fully paid. The answer of the Arkansas Valley Bank to the intervention of appellant does not appear in the transcript, and the record is silent as to the ground upon which the bank contested appellant’s right to the tires.

The decree of the court. recites that the intervention of appellant, the answer thereto of the Arkansas Valley Bank and the other creditors, in so far as they were represented, were submitted on the 18th day of May, 1921, for determination upon the pleadings and testimony introduced by the respective parties in open court. The facts reflected by the testimony are, in substance, as follows: the Fort Smith Tire & Rubber Company was a corporation engaged in the automobile tire business in Fort Smith. Its business was conducted by W. B. Hodges as general manager. Minutes were not kept of the meetings of the board of directors and the business transacted by them. In the course of business the corporation became heavily indebted to many persons, thirty-two in number, the Arkansas Valley Bank being a creditor to the amount of eleven or twelve thousand dollars in 1920. Payments were made upon the indebtedness to the bank wnich reduced the amount to about $10,000 in February, 1921. Being unable to pay the balance, three renewal notes covering the amount were given at that time to the bank.

■ In December, 1920, a large bill of tires was purchased on credit from appellant, for the purchase price of which drafts were drawn and accepted, payable at a future date. The tires were delivered January 1, 1921, and placed in stock. When the acceptances matured, being unable to pay them, t'he manager, with the knowledge and consent of the directors, but without authority conferred by formal resolution, entered into a written contract on March 17, 1921, of resale and purchase of the tires remaining in stock for a specified consideration of $10,151.66, payable in installments each Saturday night in amounts equal to the net sales of the tires during the preceding week, with a reservation of the title to appellant in the unsold tires until the entire purchase money should be paid, and part of the tires were sold and appellant was paid $1,719.07 on account, leaving a balance of $8,432.59 due appelant at the time the receiver was appointed.

The tires purchased from appellant and placed in stock on January 1, 1921, were carried as a liability m the statement made by the general manager on the first day of the year. The indebtedness to the Arkansas Valley Bank existed prior to the purchase of the tires, and credit was not extended fey said hank, or o tber creditors, on account of the tires being included in the statement showing the assets and liabilities of the Fort Smith Tire & Rubber Company.

Appellant contends that, under the law and the evidence, the court should have ordered a return of the tires or their equivalent in money, instead of adjudging it a general creditor. It invokes, in support of its contention, the -doctrine that a contract is binding between the parties thereto and their creditors in which a vendor retains title to the property sold until the purchase money is paid. This rule was announced by this court in the recent case of Sternberg v. City National Bank, 149 Ark. 432. The rule, however, is not applicable to the instant case. The title to the tires nad passed to the Fort Smith Tire & Rubber Company under an outright sale and delivery on or about January 1, 1921, and when the purchasing company could not pay for them it was agreed, on March 17, 1921, that the title to the tires should revert to and remain in appellant until the entire purchase money should be paid. While this arrangement worked out an equitable result and contained no elements of actual fraud, ~t was a method adopted by the parties to secure an unsecured claim of appellant. In other words, it was an attempt on the part of an insolvent debtor, in good .faith, to prefer one creditor to another. Preference between creditors of insolvent corporations, except for ■wages and salaries of laborers and employees, are inhibited by the insolvency act in Arkansas. Crawford & Moses’ Digest, § 1798. It is made mandatory upon chancery courts to set aside preferences of this nature in proceedings under the insolvency act.

Section 1800 of Crawford & Moses’ Digest, relating thereto, is as follows: “Every preference obtained or sought to be obtained by any creditor of such corporation, whether by attachments, confession of judgment or otherwise, and every preference sought to be given by such corporation to any of its creditors, in contemplation of insolvency, shall be set aside by the chancery court and such creditor shall be required to relinquish his preference and accept his pro rata share in the distribution of the assets of such corporation; provided, no such preference shall be set aside unless complaint thereof be made within ninety days after the same is given or sought to be obtained.”

It is contended however by appellant that no complaint was made of the preference, if given, within ninety days after the same was obtained. The burden is upon appellant to show that the decree of the trial court is erroneous. It has failed to show that no attack was made upon the preference by the Arkansas Valley Bank. The record shows that the cause was heard upon appellant’s intervention and the answer of the Arkansas Valley Bank thereto. The transcript certified to this court does not contain the answer filed by the Arkansas Valley Bank. This court must presume that the decree rendered by the court was within the issues presented by the intervention and the answer. The contract relied upon by appellant was executed on the 17th day of March, 1921, and the decree appealed from was rendered the 18th day of May, 1921. The answer of the Arkansas Valley Bank eonlesting the intervention of appellant was necessarily I'iied within ninety days after the preference was obtained.

Contentions for the affirmance of the decree are made by appellee upon other grounds, but it is unnecessary to consider them, as the decree must be affirmed upon the ground set out in this opinion.

No error appearing, the decree is affirmed.