text:
    Brown v. Carlton.
    Opinion delivered March 3, 1930.

      Golden é Golden, for appellant.

      J. R. Parker, for appellee.
   Humphreys, J.

The purpose of this suit, disclosed by the original complaint filed by the Exchange Bank & Trust Company, and the amended complaint filed by Carroll J. Brown, duly appointed receiver by the United States District Court to take charge of the estate of Herman Carlton, a bankrupt, against Herman Carlton, Gertrude T. Carlton and Irene Carlton, was t'o set aside as fraudulent a deed of date October 20, 1924, from Herman Carlton to Gertrude flT. Carlton conveying certain lands in the old town of Lake Village, in the Julia R. Streett’s Addition to Lake Village, in Lakeside Addition to the town of Lake Village; and a deed of date December 16, 1926, from Herman Carlton to his sister, Irene Carlton, conveying an undivided one-half interest of lot 5 of Yergers-McMehon subdivision of the NW% of section 22, township 15 south, range 1 west in Chicot County, Arkansas, and' to subject Herman Carlton’s equityin said real estate to the payment of his debts.

The suit was brought on December 16, 1927, and, after separate answers had been filed by the defendants denying the material allegations in the complaint, and after Herman Carlton had testified in the case, he died on March 11, 1929, and the cause was revived against his administratrix, Gertrude T. Carlton.

The cause proceeded to a hearing in the chancery court of Chicot County upon the pleadings and testimony, which resulted in a finding by the trial court that, at the time the conveyances in question were made, Herman Carlton was solvent, and that they were not made in contemplation of insolvency, nor for the purpose of defrauding existing or future creditors, and a decree dismissing the original as well as the amended complaint •for the want of equity, from which is this appeal.

Appellant contends for a reversal of the decree upon the alleged ground that the finding of the trial court was 'contrary to a preponderance of the testimony. After a very careful reading and consideration of the evidence in the case, we have concluded that the finding of the chancery court was in accordance with the weight thereof. It is true the conveyance by Herman Carlton to his wife was voluntary or without consideration, but at the time it was made and for more than three years thereafter he was solvent. There is nothing in the evidence which reflects that the conveyance was made in contemplation of insolvency. A very reasonable explanation is made as to why he gave his wife the property in question. The lots conveyed, as well as other lots owned by his wife, Gertrude T. Carlton, were incumbered for a balance of about $14,000 to the Georgia State Savings Association, which had been borrowed to construct a hotel and some stores thereon. Additional money was needed to make repairs as well as other improvements, and the Georgia State Savings Association wanted the title to all of the property in the name of one of them before it increased the loan and took a new mortgage. In order to comply with the request of the Georgia State Savings Association, Herman Carlton gave his wife the property in question, only owing at the time a few current debts amounting to three or four hundred dollars, which had been incurred for their living expenses. It is true that in the same year that the conveyance was made Herman Carlton borrowed $3,600 from three different banks with AAdiich to buy bank stock in the Chicot Bank & Trust Company. He joined a pool entered into by hiinseT and five or six of the best men of the village to buy $75,000 of the stock •a by Walter Davies in said bank; the capital stock of the bank was $150,000. The pool Avas represented in Cm Purchase of the stock by Gordon N. Peay of Little Bock, Arkansas, who investigated the bank and found the book value of the stock to be $96 a share. Others aaAio investigated the bank said that the stock Avas avorC^ a share. Although Walter DaAd.es was disgruntled and desired to sell the stock and AAras willing to take twenty-eight cents on the dollar for it, the purchasers AAdio had formed the pool and paid twenty-eight cents per share therefor believed .that they were buying same at a great bargain, and believed it so firmly that all of them borrowed the money with which to buy same. Herman Carlton bought $14,000 of the stock, and pledged $2 for $1 to .three different banks from which he borrowed the money to pay his part into .the pool. The banks from which he borrowed the money willingly made the loan and took the stock as collateral security therefor. We see nothing in the transaction to indicate insolvency or contemplated insolvency at .the time he conveyed the lots in question to his wife nor when he purchased the stock.

The transfer to his sister of the lot heretofore described was made for a -valuable consideration. There was a vendor’s lien for something near its value at the time he conveyed it. He sold his sisfier his equity therein for $500 of the stock in the Chicot Bank & Trust 'Company. All he owned at the time were a few current debts, $4,000 to the banks which he had borrowed to pay for the stock he had bought and about $1,000' in collections he had made for insurance companies he represented. The amount he owed the insurance companies was after-wards paid by his sister who was appointed agent of the insurance companies in his place. At the time he made this transfer to his sister he still owned $14,000 of the stock in the 'Chicot Bank & Trust Company, a part of which had been assigned as collateral security for loans with which to buy the stock. In the spring of-1927, after the conveyance to his sister, the Chicot 'Bank & Trust Company failed, and, when the Bank. Commissioner assessed $14,000 against, him on his stock, it' rendered him financially helpless and insolvent. He turned all of his stock in the 'Chicot Bank & Trust Company over to the trustee in -bankruptcy, the appellant herein. His equity in the property he conveyed to his sister was inconsequential and was for a valuable consideration, and, according'to the weight of the evidence, was not made to defeat his creditors in the collection of their debts. A fair interpretation of the evidence reflects that he thought the three banks were amply secured by the collateral he had deposited with them.

No error appearing, the decree is affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Fentress v. Sicard.
    Opinion delivered March 3, 1930.

      Iiardin d Barton, for appellant.

      Daily d Woods, for appellee.
   Kirby, J.,

(after stating the facts). The authorities are well nigh uniform in holding that a mortuary or undertaking establishment of the kind complained of here is not a nuisance per se. It may become a. nuisance, however, by reason of its location in a residential district or from the manner iii which it is operated. In 46 C. J., p. 726, it is said: “An undertaking establishment or funeral parlor is not a nuisance per se, but by reason of surrounding circumstances it may become a nuisance. It may constitute a nuisance by reason of its location, as, for instance, under particular circumstances, when it is located in a residential district, notwithstanding, it has been held, it does not directly affect the health or grossly offend the physical senses; but it is more frequently held that the mere location in a residential section is not sufficient to make such an establishment a nuisance.” If the district of the location was an exclusively residential one, its intrusion therein would ordinarily constitute a nuisance, and eould be prevented by injunction. Change is the order of time however, that progress and development may not be hindered or obstructed, and the transition from a residential district into a business district is recognized and has been effected. The great preponderance of the testimony herein shows, that the establishment of the mortuary upon the site selected would enhance the value of the surrounding property as business property, and would not detract from its value for residential purposes, for which it had long since fallen into disuse, so far as new or further development is concerned. The chancellor did not find there would be any depreciation of value in the property because of the location of the mortuary, or that the health or comfort of the residents in the vicinity would be at all imperiled or likely destroyed by the operation of the mortuary there, but held only that its location could not but be a continuing reminder of death, (the dead being there), necessarily producing discomfort and depression of spirit of all people residing within the sight of it, without regard to its proper operation, and the appearance and setting of the modern structure. Its operation would be a necessary business, of course, and since the testimony shows the transition of the district from residential to business has so far progressed, that the property there will be rather enhanced in value because of its location than depreciated in any respect for residential purposes, it would not constitute a nuisance that should be prevented or suppressed by injunction.

The chancellor’s finding otherwise is contrary to the preponderance of the testimony, and the decree must be reversed and the cause remanded with directions to dismiss the complaint for want of equity. It is so ordered.


text:
    Newton County v. Phillips.
    Opinion delivered March 3, 1930.

      Jack Holt and ¿¡house <& Rowland, for appellant.

      W. P. Spears and J. M. Shinn, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in not rendering judgment against the clerk for $105.64, one-half of the amount of scrip $211.28, which he offered with $17.72 in cash in payment of the county tax collected and charged against himself, $229.

The county clerk was charged with the duty of collecting the county privilege tax for recording deeds and mortgages and issuing marriage licenses, and, the majority is of opinion, comes within the designation “or other officer” under the statute, § 10046, C. & M. Digest, requiring the collector of revenue to pay the revenues collected “in kind” in settlement, and making himself subject to a fine for violation of the act “and liable on his official bond for the difference in value between the funds received and those paid.” Although it is true the clerk would have been required to receive in payment of the county privilege tax, if it had been tendered, the county scrip for that amount, and could have paid this scrip so received in full settlement of the tax to the county, he did not in fact do so, but allowed the debtor the discount of the depreciated value of the scrip, collecting of him 25 cents in money only for the 50-cent tax for which he attempted to make settlement of the tax due the county with county scrip. This could not be done. Although he claimed he only collected in cash one-half' of the amount of the privilege tax required by law to be paid the county, it is undisputed, conceded in fact, that he collected in each instance, in money, his own fees and one-half of the amount of the county tax, an amount in excess of the amount due for county tax. Since this was col leetecl in money, he was bound to pay “in kind” into the treasury, in settlement with the county court, the whole of the tax collected, which the court correctly held had not in fact been done by the payment into the county treasury of the $211.64 in county scrip of the value in cash of 50 cents on the dollar. He could not take, regardless of the custom, in payment of the amount of privilege tax required by law to be collected a less amount than fixed by law and was bound to pay “in kind” in settlement of the tax ..collected. Having in fact collected in cash more than the amount of the tax required to be collected and being bound to pay “in kind” the funds received, the whole amount of the tax, the court erred in not rendering- judgment for the balance of the tax, which should have been collected by him and paid “in kind” into the treasury. He was bound to collect the tax, collected only one-half of it in cash, and, not being permitted himself to substitute depreciated scrip, not paid to him, in settlement of the tax, he could not discharge his obligation to the county to pay the whole amount of privilege tax “in kind” into the treasury, which he attempted to do, by using depreciated scrip worth only.50 cents on the dollar.

The judgment must accordingly be reversed, and the cause remanded with directions to enter a judgment for one-half the cash .value of the scrip attempted to be paid in settlement or $105.64. It is so ordered.


author: -Kirby, J.

text:
    Morrilton Ice & Fuel Company v. Montgomery.
    Opinion delivered March 3, 1930.

      Edivard Gordon and J. W. Johnston, for appellants.

      W. P. Strait, for appellees.
   -Kirby, J.

This appeal is prosecuted from a decree for the balance of the purchase money due for machinery or apparatus sold to appellants, and foreclosure of ma-terialman’s lien therefor.

Appellees, an Illinois corporation engaged in business in Chicago, upon receipt of a telegram from appellants, stating: “In market for sterilizer. Send representative at once. Wire.” Sent its agent to appellants engaged in the manufacture of ice at Morrilton, and sold them, under the terms of a written contract, “One (1) SEL 3 Hartman electrolytic sterilizer 400/500 G-.P.H. 2020.”

The contract recites the terms of sale and payment, and ‘ ‘ the seller guarantees the Hartman electrolytic water sterilizer to deliver water clear of suspended matter, and of such clearness as to conform to the platinum wire test of the American Public Health Association, and that water from this apparatus shall conform in every respect to the limits laid down by the United States Treasury Department, Bureau of Public Health, covering potable waters. Also bacterial count when plates are hept clean.” (Words in italics inserted by purchaser before signing.) It also recites that the guaranty is made with the understanding that the -water purifying apparatus shall be operated according to instructions furnished, and for the making of any tests desired by the purchaser, who is to furnish samples of the water for tests, etc., within 30 days after the installation of the apparatus or sterilizer. It recites further, “that it is agreed that all agreements arid understandings, verbal or written, made or had respecting the machine sold, are abrogated, superseded and canceled by this contract, and at the time of the execution of same.” After the execution of the contract and before the arrival of the machine sold at Morrilton, appellants sent another telegram to appellees asking about the purchase of containers for selling “electrified water.” During the negotiations for the sale of the sterilizer, one of the members of appellant’s firm went with appellee’s agent to examine a sterilizer of like kind in operation at Atkins, Arkansas, and after returning from the inspection of it closed and executed the contract of purchase. The title to the machine was retained by the seller until the purchase m-oney was paid, and the contract also provided for its installation by the seller.

When Ihe machine arrived, however, appellants, without notice to appellees, had it installed in their new ice factory, and, upon later complaint of its unsatisfactory operation, appellees sent its engineer to correct any condition that might interfere with the proper operation of the machine, which was done to the satisfaction of appellants. Appellants thereafter refused to execute the notes for the remaining purchase money due, $1,510 and interest, under the terms of the contract and within 90 days from furnishing the machine or sterilizer, installed in the new ice plant, appellees brought this suit for collection of the balance of the purchase money due for the sterilizer, for enforcement of a vendor’s lien thereon and a materialman’s lien against the plant, making the proper allegations in .its complaint therefor and exhibiting the contract therewith.

Appellants denied the allegations of the complaint, and alleged that the appellee’s agent procured the contract of sale upon false and fraudulent representations to appellants, “that, said machinery would remove from the water all bacteria, and would also remove from the water all iron in substance or nature, and enable the defendants to reduce the core in each block of ice to a feather edge which would purity the water and greatly reduce the expense of the defendants in operating said plant, and improve the quality of defendant’s ice by removing the iron in solution and reducing core to feather edge, softening water and destroying or eliminating all bacteria or contamination.” That the apparatus or machine failed to remove the iron in solution from the water, to reduce tlie core in the ice to a feather edge or soften or purify the water in the manner represented by the agent, and that but for the fraudulent representations made to induce appellants to enter into the contract it would not have been made. Denied any liability under the contract, and asked judgment for $510 paid at the time it was entered into.

The agent denied having made the alleged false and fraudulent representations about what the machine would do, and stated that all the guaranty was written into the contract, which was read over before its execution by appellants, who inserted some small amendments. There was some testimony on the part of appellants tending to prove the false representations alleged to have been made by the agent, which he denied as already said, and it was not disputed about the machine doing the work properly in accordance with the written guaranty, nor any denial made by appellants of the telegram sent before the contract was entered into or after its execution, nor of the execution of it by appellants after one of the firm had visited a plant at Atkins, a town nearby, and inspected a like machine in operation. Appellants were experienced manufacturers of ice, operating two plants for that purpose, and using distilled water in the old plant. Without further recital of the testimony, it will suffice to say that the chancellor’s finding that there was no false representations made in the sale of the sterilizer, and no guaranty of the effects of its performance and operation, except as written in the contract, is supported by the preponderance of the testimony.

Appellants insist that the chancellor’s findings are f*ontrarv to the preponderance of the testimony, but such is not the case as already stated. Appellants alleged and soufi’ht to show that the written contract, admitted to have been executed by them, was obtained by false and fraudulent representations of a guaranty bv appellees through its agent in making the sale; that the machine would in its operation remove iron in solution, and other chemicals from the water, and soften hard water. There is no contention that any misrepresentation was made as to the guaranty of the operation of the machine sold as written in the contract, and the preponderance rule of proof does not apply in an attempt to vary the written contract by the addition of a parol warranty not included therein, and false representations relative thereto. “The solemn written engagement of contracting parties cannot be reformed or amended, except upon clear and satisfactory proof that the writing fails, by reason of fraud, accident or mutual mistake in the preparation or execution thereof, to express the agreement intended to be entered into.” Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, 105 S. W. 880; see also Texas Co. v. Williams, 178 Ark. 110, 13 S. W. (2d) 309; Eureka Stone Co. v. Roach, 120 Ark. 326, 179 S. W. 499; Welch v. Welch, 132 Ark. 238, 200 S. W. 130.

It is true appellants do not ask a reformation of the contract nor a rescission of it, but deny liability thereunder because of alleged false and fraudulent representations guaranteeing the effect or result of the operation of the machinery, removing chemicals from and making hard water soft, not contained in the written contract, attempting to establish it by parol testimony. Such an alleged guaranty, altogether at variance with the written contract, could not be added to the writing for avoiding its- effect, because of fraudulent representations as to the violation of the parol guaranty by a less degree of proof than would be required for reformation of the contract to include it. The undisputed testimony showed the amount of the purchase price still due under the terms of the contract; that the machinery was furnished and installed in the new ice plant of appellants upon the lot or site particularly described in the testimony; the refusal of appellants to pay the balance of the purchase price of the machine, and the bringing of the suit therefor, and for foreclosure of a material furnisher’s lien against the ice plant within the 90 days which entitled ap-pellees to a foreclosure of a lieu against the plant for the balance of the purchase money -due. Anderson v. Seamans, 49 Ark. 480, 5 S. W. 799; Pfeifer Stone Co. v. Brogdon, 125 Ark. 428, 188 S. W. 1187; Carr v. Hahn & Carter, 126 Ark. 609, 191 S. W. 232; Standard Lumber Co. v. Wilson, 173 Ark. 1029, 296 S. W. 27.

We find no error in the record, and the decree is affirmed.


author: Mbhai-fy, J.

text:
    Floyd v. State.
    Opinion delivered March 3, 1930.

      Smith $ Blackford, for appellant.

      Hal L. Nomvood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mbhai-fy, J.

Neeley Shaver died about January 18, 1926. He was embalmed in the usual way and buried at Evening Shade, in Sharp County, Arkansas, and was exhumed in November, 1927, the contents of his stomach, liver and kidneys being sent to Dr. Manglesdorf, state chemist at Little Bock, and he reported finding one and one-half grains of arsenic poison in his stomach and more than ten grains in his other organs, which was enough to cause death. John Mullen a brother-in-law of the appellant, had a policy of insurance upon Shaver’s life for about $11,000. Shaver lived on Mullen’s farm, and was with him for several years, and had farmed Mullen’s land a part of the time. On the day before he died that night John Mullen received word that Shaver was sick, while he was at Min turn, and immediately went to Walnut Bidge and employed Dr. Land to go and wait' upon Shaver, and Mullen went .with the doctor to Shaver’s house in the afternoon. Dr. Land examined him, prepared and left a bottle of medicine with the old lad3r who lived with Shaver, giving her directions, and he and Mullen went back to Walnut Bidge. Dr. Land found Shaver very sick, run-down and having smothering spells; found that he had been eating hogshead cheese and found that it was in a tin clishpan and not fresh, and the doctor concluded that Shaver had ptomaine poison, but-said that it could have been arsenic. A few hours later, the appellant, Frank Floyd, a tenant on the same farm, went over to the Shaver place to sit up and give medicine. He testified that he gave the medicine with the help of the others at the house, out of the bottle he found there. He arrived at the Shaver home about six or seven o’clock in the evening. Shaver died about midnight. Fredis and Ora Pierce, a son and daughter of Dan Pierce, who died subsequent to Shaver’s death, and upon whose life the some John Mullen had a life insurance policy, made to him as a creditor, about which he had had some litigation with the widow and heirs of Dan Pierce, which litigation was compromised, and the widow and heirs of Pierce, receiving a portion of the proceeds of the policy, as witnesses testified that the appellant came by their house on the evening that Shaver died and showed them a bottle of medicine, similar to the one described by Dr. Land, and that he gave Shaver some medicine ont of the bottle which he took over. Their testimony showed that after Shaver died appellant put the bottle with the remaining medicine in it into the stove. That he raised the cap of the stove and put it in, but said nothing at the time. Julia Brogdon, the old lady who lived with Shaver, testified that she helped Frank Floyd give the first dose, and that she knew it was out of the bottle which Dr. Land left with her to be given. Dr. Seal, who had been Shaver’s physician, testified that he had given him a Fowler’s solution or arsenic for a long time, which was a medicine commonly given for run-down old men,' and that a habitual taker of it would leave traces of it in the system. The jury found the defendant guilty of murder in the first degree and fixed his punishment at life imprisonment. Motion for new trial was filed and overruled, and appeal prosecuted to this court.

AVe do not deem it necessary to set out the testimony in full, but the evidence tends to show that Fredis and Della Pierce saw appellant about seven o ’clock, and that at that time he had a little bottle of medicine, about three inches long, reddish looking with a -whitish looking sediment at the bottom. That he had this medicine as we were going to Shaver's house. They testified that Frank Floyd gave Shaver a dose when he got over there; that Shaver -was suffering pretty badly when they got there. That appellant gave him a dose out of the bottle he took with him, about fifteen minutes after he got there and another dose in about an hour and a half. They also testified. that Shaver got worse and did not want to take the second dose, said it was smothering him. Shaver died about twelve o’clock. After he died, Floyd burned the bottle of medicine in the stove. The undisputed evidence-shows the finding of arsenic in the body after death.

Dr. Land testified that the medicine fie left for Shaver was a reddish brown looking- substance with a whitish settling in the bottom of the bottle. The doctor was at Shaver’s about four or five o’clock. Julia Brogdon testified about the doctor leaving- the bottle of medicine, and that the first dose was given after .appellant came and that she knew it was out of the bottle Land left. She did not know what became of the bottle.

Dr. Seal testified that Shaver was addicted to taking Fowler’s solution of arsenic, and that the last two years of his life he was very feeble.

Frances 'Collins testified that Della Pierce wanted her-to testify that she saw Floyd with a bottle of medicine.

The appellant testified in his own behalf and denied the statements made by Fredis and Ora Pierce; that he did not see Shaver Sunday, and his testimony as to being elsewhere on Sunday was corroborated by John Holloway and Taylor Mullen. Some witnesses were introduced and testified that Frank Floyd’s reputation was good. After both sides had rested the court permitted the State, over the objection of defendant, to recall defendant for further cross-examination.

It is first contended by appellant that the evidence was insufficient to support the verdict, and that it affords mere grounds of suspicion and does not justify a conviction. He contends that there is no substantial proof. The fact that enough arsenic was found in his -body to have killed him, together with the testimony of Fredis and Ora Pierce that they saw appellant give Shaver medicine and then burn the bottle with the balance of the medicine, and the other circumstances testified to in the case, were sufficient to carry the case to the jury. The next contention made by appellant is, that the court erred in permitting the State to reopen the case after each side had rested, and in permitting the court stenographer to read from the testimony of appellant at a former trial, for the purpose of impeaching and contradicting him on an immaterial matter. The stenographer was called and the court said: That they could read that part only which related to appellant’s testimony for the purpose of impeaching or contradicting. Whether it does or not, that is for the jury to say and to consider in weighing his testimony at this trial. The State then asked the stenographer this question: In Mr. Floyd’s- testimony given in this trial before, the following question was asked him on cross-examination: “Now, can you figure for us about how many doses you gave him?” and his answer was, “Well, they gave him — Mrs. Brogdon gave him the second capsule after I got there, and then we gave him the other medicine every two hours.” Then he was asked, “Well, you gave all the medicine that was given after you got there?” and his answer was, “No, sir.” Then he was asked, “Who else gave him some? His answer was, “Well, I don’t know, we both gave the medicine to him. He would carry the medicine and I would carry the water.” This testimony was competent. This testimony ■of statements appellant had made before, which tended to contradict his testimony given at this trial, was competent for the purpose of contradicting him.

It is next contended by appellant that the court erred in giving instruction No. 9. Said instruction reads as follows: “I instruct you, gentlemen, that it rarely happens that one person kills another without some motive, such as hatred, fear, hope of gain, etc. The State may prove the motive if it can, and when it does so, the evidence with respect to motive often serves to throw light upon the mental condition of the slayer, with respect to malice. And such evidence may tend to prove express malice referred to in these instructions; but it is not necessary for the State to prove the motive, in order to warrant a conviction. It may happen that there are no external conditions capable of proof of express malice; but the prosecution does not necessarily fail for that reason, for in many cases there is implied malice without that proof, and the implied malice as the word indicates is malice inferred or implied from all of the facts and circumstances of the death, or when the facts and circumstances of the death show a wicked and abandoned disposition.”

Appellant cites and relies on Scott v. State, 109 Ark. 391, 159 S. W. 1095. The instruction given in that case, however, was wholly different from the instruction given in this case, and that case does not sustain appellant’s contention. The court there told the jury: “You are instructed that the proof of the presence of a motive, or the absence of a motive, upon the part of the defendant with referem e to the killing of his wife has absolutely nothing- to do with this case. It is not incumbent upon the State to prove either the presence or the absence of a motive for the killing; and the presence or the absence of a motive has no bearing whatever upon an issue of insanity as a defense to the crime of murder.”

The above instruction was condemned, because it singled out the proof of motive or absence of motive, and toid the jury that the presence or absence of motive had absolutely nothing to do with the case; that by doing so undue weight is given to the proof, thus invading the jury’s province; that it is error to single out the question of motive for the commission of the crime, and point to it as a proper subject of consideration as an evidence of defendant’s guilt, and it is equally erroneous and improper to point to the want of motive as an evidence of his innocence.

In the instant case, the court simply told the jury that the proof of motive often serves to throw light upon the mental condition of the slayer with respect to malice, and that such evidence may tend to prove express malice referred to in these instructions, but it is not necessary for the State to prove the motive in order to warrant a conviction.

The court further said in the case of Scott v. State: “The instruction is erroneous in stating that the proof of the presence or absence of a motive on the part of defendant for killing his wife had absolutely nothing to do with the case. It is true it is not incumbent upon the State to prove either the presence or absence of the motive, but the jury had the right to consider such testimony in determining the guilt or innocence of defendant, and the court in the instruction is in error in declaring that the presence or absence of a motive had no bearing whatever upon an issue of insanity as a defense to the crime of murder. The instruction virtually told the jury that they could not consider the proof relative to the presence or absence of a motive for the killing; that that had absolutely nothing to do with the case and no bearing whatever upon an issue of insanity as a defense to the crime charged.” An examination of the instruction in the instant case will readily show that it is not subject to the objection pointed out in the Scott case.

In the next case cited and relied on by appellant, Ince v. State, 77 Ark. 418, 88 S. W. 818, the court simply held that the lower court did not commit error in refusing an instruction which told the jury that, if no motive wras shown, it was a circumstance in favor of defendant’s innocence to be considered by the jury. The court held that it was improper to tell the jury that the evidence singled out was a circumstance in defendant’s favor.

In the case of Hogue v. State, 93 Ark. 316, 124 S. W. 783, cited and relied on by appellant, the court simply held that the instructions offered in that case were not objectionable, and that a careful consideration of the whole record showed that the defendant had a fair trial. It is true there is a dissenting opinion in that case, and the judge writing the dissenting opinion thought the instruction was wrong, but the court held that it was proper.

The case of Tillman v. State, 112 Ark. 236, 166 S. W. 582, referred to and relied on by appellant, refers to the other cases above mentioned, and approves the instruction that called attention to motive and affirmed the case. Appellant is correct in stating that, where a prosecution and claim for conviction is based solely on circumstantial evidence, it is the duty of the court to give an instruction, as suggested by appellant. But this case does not depend solely on circumstantial evidence; it depends partly on circumstantial evidence and partly on direct evidence.

It is next contended that special counsel, in making the closing argument to the jury, made certain remarks which were prejudicial and called for a reversal of the case. We think any prejudice which might have been created was corrected by the statement of the court.

It is finally contended that the court committed error in the manner in which it passed on the objections, mildly and by stating that counsel had the right to make Ms conclusion, etc. So far as the record shows, there is nothing-in the manner of the court, or in what he said, which could be construed as prejudicial to appellant. The evidence in this case is not very strong. It is sufficient, however, if believed by the jury, to authorize it to find a verdict of guilty. We do not pass on the weight of the evidence nor the credibility of witnesses. This is the province of the jury, and if there is any substantial evidence to support the verdict, this court cannot set it aside on the ground that it is insufficient to support the verdict. We have carefully examined the entire record, and have reached the conclusion that there is substantial evidence to support the verdict, and that the instructions as a whole correctly stated the law to the jury.

The judgment of the circuit court is therefore affirmed.


author: Mehaffy, J.

text:
    St. Louis-San Francisco Railway Company v. Chastain.
    Opinion delivered March 3, 1930.

      E. T. Miller and Warner S Warner, for appellant.

      E. D. Chastain, for appellee.
   Mehaffy, J.

The appellee brought suit in the Crawford Circuit Court against appellant in June, 1928, to - cover damages for injury to mules. He bought some mules at’ Park Hill, Oklahoma, and also some mules at Spring-dale, Arkansas, and both lots were shipped to Van Burén, Arkansas. The mules shipped from Park Hill, Oklahoma, arrived at Van Burén at 2 a. m., February 25,1928. They had been shipped from Park Hill on February 24. When they readied Van Burén, instead of placing the car on the .switch adjacent to the stock yards, so- they conld toe unloaded, appellant switched said car of mules to a loading switch for fruit and produce, placing the car alongside the shed and platform, and on a different track from that extending to the stock yards, and left said car of mules standing upon the fruit shipping track about three hundred yards from the point on the -other track for unloading stock. The mules could not be unloaded at said place. The appellee reached the railroad station at Van Burén at eight o’clock-in the morning after the carload of mules had arrived at two o ’clock in the morning. The car was not moved to the track where it could be unloaded until four or five o ’clock in the afternoon, and the mules were without water or food from the time they were loaded in Park Hill, Oklahoma, until after they were unloaded at Yan Burén. The appellee did not pay the freight on the mules until after they were unloaded. The undisputed testimony shows that it was the custom to pay the freight after the mules had been unloaded or placed on the track for the purpose of being unloaded, and the railroad agent said the company did not fail to remove them to the stock-yard track because of appel-lee’s failure to pay freight, but because they had no engine with which to move them. The evidence shows that the mules were damaged by not having any food or water from the time they were shipped at Park Hill, Oklahoma, until they were unloaded at four or five o’clock in the afternoon of the next day.

The second shipment was from Springdale, Arkansas, a distance of sixty-five miles. This shipment left Springdale on February 18, 1928, and arrived at Van Burén on February 19, and this car was switched to the unloading track, and one of the mules in the car was dead. Neither of the cars was overloaded. Appellee alleged that the damage to the mules shipped from Oklahoma was $400, and that the -mule shipped from Springdale, which was dead, was worth $125. The jury returned a verdict for $290 damages to the mules shipped from Oklahoma, and $110 as the value of the mule which was killed. Judgment was entered accordingly. Motion for new trial was filed and overruled, and this appeal is prosecuted to reverse said judgment.

It would serve no useful purpose to set out the evidence in full. The undisputed proof shows that the mules shipped from Park Hill, Oklahoma, reached Van Burén next morning at two o ’clock, and were not switched to the track where they could be unloaded until four or five o ’clock in the afternoon, and that they were without feed and water all this time. One of the employees of the company said he hired a negro boy to water them, but he does not know whether the boy watered them. There is therefore no proof that the mules were fed or watered from the time they left Oklahoma until they were unloaded at Van Burén, and, while the evidence as to damage is slight, as to whether they were damaged by reason of this delay to feed and water them was a question of fact, and there was sufficient evidence to submit this question to the jury.

About the mule from Springdale being dead, there is no dispute, and there is no dispute about its value. The witnesses for the railroad company testified that they handled the trains properly, and there was no rough handling, but the undisputed fact is that this was a good mule, weighed about twelve hundred pounds, in a car with the other mules, and a car that was not crowded, and that it was down and was dead when it got to Van Burén.

There is some controversy about the payment of freight, but the railroad agent himself testifies that he did not refuse to place the car where it could be unloaded because the freight was not paid, but because they had no engine with which they could move the car.

Appellant insists that it is not liable for delay or damage to the Park Hill shipment, and insists that before the shipper had a right to demand that the car be placed on the unloading track it was his duty to pay the freight. The undisputed proof, however, shows that it was customary to unload the mules before the payment of the freight, and this had been the practice as to shipments made by appellee. The undisputed proof is that appellee had at other times shipped mules over the Frisco, and, after having had them unloaded, paid the freight. Appellant calls attention to the case of St. Louis-San Francisco Railway Company v. Vaughan, 84 Ark. 311, 105 S. W. 573, and quotes from said case as follows:

‘ ‘ The law does not require railroads to keep engines and cars at stations at all times to move freight offered for shipment. It would be unreasonable to require that. All that the law requires is that reasonable care and diligence be exercised in furnishing facilities, and in transporting freight (2 Hutchinson on Carriers, § 652 et seq.; Moore on Carriers, p. 104; Chicago, R. I. & T. Ry. Co. v. Kapp, (Tex. Civ. App.) 83 S. W. 233).”

It is true that all the law requires is reasonable care and diligence, but we think the jury was justified in finding in this case that the failure to put the car of mules where it could be unloaded for the length of time the evidence shows in this case that it did, was negligence, for which the company is liable. The appellant could have placed the car of mules at the unloading track at the time it brought them to Van Burén. If it did not want to do that, it could have had the mules watered and fed. It did neither and the failure to do either was sufficient to justify the jury in finding the appellant guilty of negligence. It is true that the carrier has a lien on goods transported for its freight charges, but it is also true that the carrier can waive this lien, and the proof shows that it did waive it in this case. It is contended by appellant that there was no sufficient evidence of damage to this shipment, there being no proof of the market value, either before or after the shipment. As we have already said, the evidence as to damage was slight. The appellee testified that he saw the mules late in the afternoon before they were loaded the next day; that they were in good condition ; that when they Avere unloaded at Van Burén they did not look like the same mules; that they had done without water and feed for forty hours. He testified that he thought ,the mules were $400 off; that he knew they were in good condition when put in the car.

G. A. Ethridge'testified that he purchased the mules, that they were good mules, but gaunt and lacked feed and water.

Appellant next contends that it is not liable for loss of the mule in the Springdale shipment. The appellant was bound to use reasonable care to transport said mule, and deliver it in good condition. He was not required to deliver it in good condition, but required to use ordinary care to do this. The mule, according to the evidence, was in good condition when it left Springdale, the distance from Spring-dale to Van Burén being only sixty-five miles, and it was down in the car dead when it got to Van Burén. The jury evidently reached the conclusion that, the mule being in good condition when shipped and being killed on the way, this could not have happened without negligence in handling the car. Appellant contends that, upon proof that suitable cars were used and that the carrier performed the duties incumbent upon it, an unexplained loss or injury to the live stock is presumed to have been due to the natural propensities of the animals. It is true that the company is not liable for any injury caused by the inherent vices of the live stock, and the proof of negligence in the shipment of this mule is very slight. We cannot say, however, that it was not sufficient to justify the jury in finding appellant guilty of negligence.

It is next contended that the court erred in giving instructions. But the objection urged to instruction No. 1, is “that there was no' evidence that the defendant failed to use ordinary diligence to unload the mules after plaintiff demanded same and offered to pay the lawful charges.” We have already stated that the evidence shows that the delay was not because of the failure to pay the freight charges, but, as the agent himself testified, it was caused by waiting for placement. Defendant also urges a reversal because of the court’s failure to give instructions requested by it. 'We think the court fully and fairly instructed the jury, and that there was no error in refusing to give the instructions complained of. It is urged that the evidence with reference to the custom in delivering-shipments before the payment of freight was incompetent, and also that the evidence on the part of appellee as to damages was incompetent. We do not agree with appellant in these 'contentions. In the first place, the evidence of the custom was proper, and that, together with the evidence of the appellant’s agent, shows that the failure to pay the freight was not the cause of the delay. Thé evidence as to the damages, as we have already said, is slight, but sufficient to sustain the verdict. While the writer does not believe there is sufficient evidence of negligence on the part of appellant causing the death of the mule shipped from Springdale, yet a majority of the court think the evidence' is sufficient to sustain the verdict, and the judgment of the circuit court is affirmed.


author: Mehaeey, J.

text:
    Arkansas Valley Bank v. McClenahan.
    Opinion delivered March 3, 1930.

      Warner •& Warner and Daily ■& Woods, for' appellants.

      Evans Evans, Ratdiffe $ Ratcliffe, Lee Miles, H. M. Jacoway, O. M. Young and A. M. Dobbs, for ap-pellees.
   Mehaeey, J.

This action was 'begun in the Sebastian, Chancery Court by appellees to recover from the Arkansas Valley Bank and others, alleging misappropriation of moneys and securities and cashing checks without authority. On October 23, 1927, the court, on application of the appellees, appointed a master to hear and take testimony, and make his report to the court, and to do and perform all things, and to possess and have all powers usually possessed by masters in chancery. Both parties consented to the appointment of Hon. C. M. Wofford as master. The master took testimony, filed his report, together with the evidence taken by him, and,in addition to reporting the evidence, made the following finding: “I find from the facts: (a) That Mr. M. M., Hayes acted as the special agent of Mrs. Jessie D. Mc-Clenahan and her daughter, Miss Marianna MeClenahan, to invest their funds, and that he did not represent the bank, (b) That he had authority to sign the names of. Mrs. MeClenahan and her daughter to cheeks, and that, the Arkansas Valley Bank was authorized to cash the six cheeks testified to as having been signed by M. M. Hayes, and amounting to the total sum of $5,900.67.”, No, additional testimony was taken in court, but the case' was heard on the testimony taken before the master, including depositions of witnesses, documentary evidence, and the pleadings in the case. After the master had filed his report, both parties filed exceptions to the report, and the court, after a hearing on the exceptions filed by both parties, sustained the several exceptions of the defendants to the report of the master, and sustained the plaintiff’s exceptions number 10 and number 18, and found the issue of facts as well as of law in favor of ap-pellees, and against appellants, and entered a decree in favor of appellees for the sum of $19,300.37 with 6 per cent, interest from November 1,1928, until date, amounting to $19,636.83 on May 20, 1929, the date of the decree. Appellants prosecuted this appeal to reverse said decree.

The appellees moved from Oklahoma to Fort Smith in December, 1912. Mrs. MoOlenahan and her husband were separated, and as the result of a property settlement, she received through her attorney, Judge "W. A. Falconer, a check for $5,000, three notes aggregating $19,000, bearing six per cent, interest, and $6,000 in Liberty bonds, a total of $30,000 received in the settlement. When Judge Falconer received this, he told ap-pellees, and they met him at the Arkansas Valley Bank May 12, 1920, and Judge Falconer advised them to deposit the money and securities with the Arkansas Valley Bank, telling them that he did business at that bank, and that, if they would let the bank attend to their matters, the income or interest from the $30,000 would make them a living.

Of the $5,000 cash received, $4,500 was deposited in the bank as a savings account, and $500 as a checking account. The Liberty bonds and notes were put in a safety deposit box, which was secured by appellees upon the advice of the officers of the bank.

John 0. Gardner was president of the Arkansas Valiev Bank at the time, M. M. Hayes was active vice-president, and G. H. Sexton was vice-president and cashier. Both appellees were ignorant of business methods, knew nothing whatever about what to do with their moneys and securities except as they were advised by the officials of the bank and Judge Falconer, and Judge Falconer advised them to deal with that bank, and that they would be properly taken care of. At the time the deposit was made, the Arkansas Valley Bank and the Arkansas Valley Trust Company occupied the same room. The officers of the Arkansas Valley Bank were the officers of the Arkansas Valley Trust- Company. M. M-, Hayes, the active vice-president, had lived in Oklahoma, and the appellees had been acquainted with him in Oklahoma, and they did not know any other officers of the bank. Hayes was more active in attending to their affairs than any other person in the bank; in fact their business was transacted by him almost entirely. In September, 1920, the Arkansas Valley Bank and the Arkansas Valley Trust Company separated, and thereafter occupied offices in different buildings. M. M. Hayes remained as active vice-president of the Arkansas Valley Bank until sometime in 1922, at which time he ceased to be active vice-president, aud ceased to draw a salary from the bank as vice-president. He still remained a director and vice-president, however, and signed letters written by him as vice-president of the Arkansas Valley Bank. In 1926 Hayes was arrested, charged with forgery and embezzlement and placed in jail, and appellees wanted to make his bond and drew a check for $3,000. The sheriff called on the bank, and the bank said they did not have money there to pay it. They expressed surprise at not having the money and went to the bank and wanted to see their securities, claiming that, if the money was not there, the securities should be. They then discovered that, while there was a list of the securi-ties in the deposit box, no securities or notes were found, except one $1,000 note executed by Hendrix, and a $2,000 note was found in Hayes’ desk. Three notes for $1,000 each were found in the Merchants’ National Bank, and had been used by Hayes as collateral to a note of his for borrowed money. When the Merchants’ National Bank learned that Hayes had used these notes as collateral without authority, it surrendered them to Mrs. Mc-Clenahan. The total amount found at the Arkansas Valley Bank, and the notes at the Merchants’ National Bank was $6,000. The agreement, when the appellees deposited $4,500 in the savings account was that theii money deposited in that way should bring 4% per cent, interest, but it was understood that it would be invested in securities at a higher rate of interest. The Mc-Clenahans had bought a home and furniture and used some of the money in this way, however Miss MoClena-han had worked, received a small salary, and the money she received as salary was also used in making payments on the home and furniture. The master found that the amount of the loss of appellees was $22,731.77. Hayes, in his testimony admitted that he embezzled $12,000 or $13,000 of the MoClenahans ’ money, and embezzled the money of the’ Arkansas Valley Bank. Each of the appéllees was given a key to the safety box. No one, however, could get into the safety box, even with the key, without some person from the bank going- with them and using the master key. After some time, Hayes, stating that he wanted to get into the deposit box to get some notes, or to make an investment, secured the key of Miss McClenahan and'never returned it. The evidence is entirely too long to set out. It would, in fact, make a considerable volume, but such evidence as appears to.be necessary will be mentioned in the opinion.

The appellant contends for a reversal, first, on the ground that the master’s findings not only must be given due weight, but that, since both sides consented to the particular individual named as master, his finding’s are conclusive. Attention is called to the case of Carr v. Fair, 92 Ark. 359, 122 S. W. 659, 19 Ann. Cas. 906, and in that case the court said, quoting with approval" from the case of Tilghman v. Proctor, 125 U. S. 136, 8 S. Ct. 894: “In dealing with these exceptions, the conclusions of the master, depending upon the weighing of conflicting testimony, have every reasonable presumption in their favor, and are not to be set aside or modified unless there clearly appears to have been error or mistake upon his part,” and, continuing, the court said: “The findings of the master appointed by the court of its own motion should not be lightly disregarded by the court; they should be highly persuasive; and when the findings are based upon conflicting evidence, they should be accorded the great weight to which they are entitled. And if the court does not give to the findings of such master that weight which the evidence shows they are entitled to, its action will be reversed upon appeal.” The doctrine announced in the case relied on by appellants has been several times approved by this court.

In the instant case, however, the master reported the evidence, and at the close of his report made the findings relied on by appellants. These findings, however, do not purport to be findings of fact. The master states: “I find from the facts that M. M. Hayes acted as the special agent of Jessie and Marianna McClenahan, and did not represent the bank.” This is the conclusion reached by the master from the facts in evidence. He also finds from the facts that Hayes had authority to sign the checks. The rule is, as announced by this court, that the findings of fact by a master are persuasive, when such findings are based on conflicting evidence. When the findings of a master are based on conflicting evidence, they should have great weight, but-they are not conclusive even when based on conflicting evidence. In the instant case, the undisputed evidence shows that Judge Falconer and the MeClenahans went to the Arkansas Valley Bank. They were requested to meet Judge Falconer at the bank, not at the trust company, and they were introduced to the officers of the hank and not to the officers of the trust company. It is true that there is some evidence that Gardner said, “We have the Arkansas Valley Trust Company here to attend to those things.” There is but one reasonable conclusion we. think from that statement, if Gardner made it, and the proof tends to show that he did, and that conclusion is, that “we” meant the Arkansas Valley Bank, so he said the bank has this trust company here. The appellees being inexperienced in business, we think they would necessarily conclude that Mr. Gardner meant that the bank would attend to their business. It was all the same building, the deposit was made in the bank, the securities were left with the bank, all the dealings were with the officers of the bank, and this is the testimony with reference as to whether Hayes was acting as their agent or whether the bank was, and we think the testimony conclusively shows that the bank was the agent of the McClenahans and not Hayes.

It is next contended, that the appellees’ testimony precludes a recovery for any amount in excess of $5,900.67. We do not agree with appellants in this contention. On the other hand, we think the testimony conclusively shows that the McClenahans went to the bank for the purpose of dealing with the Arkansas Valley Bank, and with no one else, and' that they at least thought that the bank was attending to their business. They were justified in this belief, because they were introduced to the officers as officers of the Arkansas Valley Bank, and while it is true the same men were officers of the Arkansas Valley Trust Company, the McClenahans did not at any time do business with them, or with-Hayes, as an officer of the Arkansas Valley Trust Company, but dealt with them as officers of the Arkansas Valley Bank.

Appellants rely on a statement, or answer to a question by MisS McClenahan, which is as follows: “The conversation was held between my mother, Mr. John C. Gardner and Mr. M. M. Hayes.' My mother said to Mr. Hayes and Mr. Gardner: ‘Now you will see that this money is kept invested; that it will be kept in circulation. ’ and Mr. Gardner said: ‘ That is my business, and T will. We have the Arkansas Valley Trust Company. That is what it is here for, and that money, as nearly as we can, will always be kept out bringing in interest.’ ” This was the statement of Mr. Gardner, president of the bank. He had been introduced to the parties as the president of the bank, and, when asked if the money would be kept invested, he answered, ‘ ‘ That is my business, and I will”; that is, the business of the Arkansas Valley Bank, or Gardner a.s president of the Arkansas Valley Bank. The evidence nowhere discloses that at that time appellees, or either of them, knew that there was an Arkansas Valley Trust Company, and, if they had known it, they were inexperienced and knew nothing about what Gardner meant except what his statement indicated, that he, president of the Arkansas Valley Bank, would keep the money invested. Mr. Gardner died before the ease was tried, and of course his testimony could not be had. We do not agree with the appellants that Miss McClenahan’s testimony showed at that time that she knew anything about two institutions. All the business was done with the bank, or its officers, and the testimony nowhere discloses that anything was said' by anybody as an officer of the Arkansas Valley Trust Company.

■ Appellants argue at length that the Arkansas Valley Bank was a banking institution and did not have authority to do what was done in this case, and, for that reason, it is not liable. This question of authority of the bank was discussed in the case of Sullivan v. Arkansas Valley Bank, 176 Ark. 278, 2 S. W. (2d) 1096, 57 A. L. R. 296. In that case it was earnestly contended that for the bank to undertake to do the things it there did would be ultra vires, and for that reason the bank would not be liable, and we there said: ‘ ‘ That it made and published false statements about the condition of the mortgage company; that it induced these persons to invest their money in worthless bonds when they knew they were worthless, and the suit is based on torts, so far as the bank is concerned, and it has been many times held that the doctrine of ultra vires does not apply to a corporation’s torts, but only to its contracts or contractual relations. Suits are maintained against corporations every day, and recovery is had for negligence, willful wrong, and all kinds of torts, and it has never been contended, so far as we know, that a corporation was not liable for these things because it was ultra vires. * * * Is the doctrine of ultra vires applicable to this case? The doctrine of ultra vires has never been held to apply to a corporation’s torts, but is limited to its contractual relations. 'Corporations are liable for every wrong they.commit, and in such cases the doctrine of ultra vires has no application.” Sullivan v. Arkansas Valley Bank, 176 Ark. 278, 2 S. W. (2d) 1096, 57 A. L. R. 296.

We also said in the above case, “In Bissell v. Mich. So. & N. I. R. Co., 22 N. Y. 258, a leading case, the court held that corporations, like natural persons, have the power and capacity to do wrong. The corporations have no right to- violate their charters, but they have the capacity to do so, and are to be bound by their acts where a repudiation of such acts would result in manifest wrong to innocent parties; that the plea of ultra vires, according to its just meaning, imports not that the corporation could not make the unauthorized contract but that it oug’ht not to have made it; that such a defense is not to be entertained where its allowance will do a great wrong to innocent parties; that, although corporations cannot rightfully do any act not authorized by their charters, yet such acts when done are to be regarded as the corporation’s acts; and if in the course of their performance others are injured by the negligence of the officers of the corporation, the corporation is responsible; such liability arising from the duty which every railway. company owes to persons within its cars with its consent.”

We have carefully read and considered the entire testimony in this case and have reached the conclusion that the MeClenahans, appellees here, were dealing with the Arkansas Valley Bank, that the officers of the Arkansas Valley Bank committed the wrongs complained of by them. They had access to this money and security because they were officers of the Arkansas Valley Bank, and we think the testimony clearly shows they are liable. There is some conflict of testimony as to whether the vice-president, M. M. Hayes, had authority to sign the checks of the McClenahans. Hayes himself testified that he had authority, he also testified, however, that he embezzled $12,000 or $13,000 of their money, he also pleaded guilty to stealing the money of the bank and to forgery. Mrs. MoClenahan and Miss MoClenahan both testified that he did not have authority to sign their names to checks. All the authority he ever had was to invest their money in interest-bearing securities, and he had this authority because he was vice-president of the Arkansas Valley Bank. It is true that Miss Mc-Clenahan talked to him and not to others, because she knew him, but this does not signify that she was dealing with him personally or that she ever made him her agent. Persons go to a bank to deal with a bank. It often happens that they would prefer to talk to a particular officer of the bank, but this does not make that particular officer their agent, and we therefore conclude that the chancellor was correct in finding that Hayes did not have this authority.

• It would ■ serve no useful .purpose to extend this opinion by reviewing’ all the testimony and authorities presented by the parties. We have carefully examined the entire record, • and reached the conclusion that the chancellor’s finding's are correct, and - supported by a preponderance of the evidence. The decree is therefore affirmed.


author: McHaney, J.

text:
    Special School District No. 50 v. Deason.
    Opinion delivered March 3, 1930.

      Bice $ Dickson, for appellant.

      Bectsley <& Beasley, for appellee.
   McHaney, J.

Based upon a petition signed by a majority of the electors in the territory affected, the county board of education of Benton County made an order changing the boundary lines of Gentry Special School District so as to absorb or consolidate all the territory in appellant district with the Gentry district, and transferring the control, property, and funds of appellant to the Gentry district. From this order an appeal was taken to the circuit court and appeal bond given.

Thereafter, while this appeal was pending in the circuit court, appellants brought this suit in the chancery court to have the order of the county board of education declared void, and its enforcement enjoined. On a hear ing the judge’s docket shows that a decree was granted staying the order of the county board of education and maintaining the status quo ante until the matter could be determined by the circuit court. The decree entered by the clerk, however, dissolved the board’s order, which was then pending on anpeal to the circuit court. This decree was entered at the April term, 1929. Thereafter, on October 24, 1929, on the petition of appellees to cor-rec.t the foimer decree, an order nunc pro tunc was entered correcting the decree so as to speak the truth and conform to the order actually made, but erroneously entered. Appellants have appealed from this latter judgment.

Without deciding the jurisdiction of the chancery court to act in the premises, since it does not appear that appellees raise the question, and appellants have invoked it, we are of the opinion that the court was correct in making the latter order speak the truth as reflected by the notation on the judge’s docket. No decree was entered regarding the merits of the controversy, and apparently no more was accomplished by the order than had already been obtained by the appeal and supersedeas bond filed. Appeals lie to the circuit court from the final orders of the county boards of education by making the necessary affidavit and bond, as provided in Acts 1925, c. 183, p. 546. If the order of the county board is void, certiorari may be resorted to. McCrory Special School Dist. v. Curtis, 174, Ark. 343, 295 S. W. 971.

We do not feel constrained to enter upon a discussion of the merits of the controversy. We hold, however, that the chancery court had the power to correct his judgment record so as to make it conform to the judgment actually rendered, even after the lapse of the term.

Affirmed.


text:
    Southwestern Bell Telephone v. Carter.
    Opinion delivered March 3, 1930.

      Schoonover & Schoonover and Edward B. Dowmie, for appellants.

      George M. Booth and Walter L. Pope, for appellee.
   McHaney, J.

This action was instituted by appel-lee against appellants to- recover special'damages which he alleged he sustained by failure of appellants to complete a long distance telephone call placed by him at Pocahontas, Arkansas, for Mr. Reed of the Reed Harlin Grocery Company, West Plains, Missouri, -by which he .intended to cancel a contract for the sale of flour theretofore made. The facts, briefly stated, are as follows: appellee, a resident of Pocahontas, is engaged in the brokerage business, buying and selling flour and feed, and does á considerable portion of his business by telephone, through the exchange at Pocahontas owned by appellant, 'Southwest Telephone Company. The other appellant ovnis the toll lines over which the call in question would have been handled. Appellee is acquainted with the employees of appellants, and has discussed with them the nature of his'business, and told them to place his calls promptly, or let him 'know, so that he might use the telegraph, else it was likely to cost him money. On September 18 or 19, 1928, he called Mr. Reed, and sold him 1,050' barrels of flour at $5.25 per barrel, provided he did not notify Mm to the contrary. Pie then called the mill from which he purchased flour, and was advised that flour had advanced. The call in controversy was then placed for Mr. Reed to advise him that he could not deliver at the price quoted, but failed to get Mm, and he; was compelled to complete Ms contract at a loss of 35 cents per barrel on the flour. Appellee gave no notice to appellants, or either of them,- as to-the nature of his call, its purpose, or’ that he would suffer special damages if it was not promptly completed. He waited nearly all day or until about 5 p. m., before making complaint about delay, and was advised they had no record of the call.

At the conclusion of the testimony appellants requested a directed verdict which was refused. The case was tried to a jury, resulting in a verdict and judgment for appellee for $150.

It has long been the rule in this State that special damages are not recoverable for breach of contract, in the absence of notice to the party in default that more than ordinary damages will be sustained in the event of failure to perform, nor unless such knowledge “be brought home to the party sought to be charged under such circumstances that he must know that the party he contracts with reasonably believes that he accepts the contract with the special condition attached to it. ’ ’ This rule harks back to the old case of Hadley v. Baxendale, 9 Exch. 341, discussed by Judge Riddick, speaking for the court, in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, where it is said:' “Now, where the damages arise from special circumstances, and. are so large as to be out of proportion to the consideration agreed to be paid for the services to be rendered under the contract, it raises a doubt at once as to whether the party would have assented to such a liability, had it been called to his attention at the making of the contract,* unless the consideration to be paid was also raised so as to correspond in some respect to the liability assumed. To make him liable for the special damages in such a case, there must not only be knowledge of the special circumstances, but such knowledge ‘must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it.’ In other words, where there is no express contract to pay such special damages, the facts and circumstances in proof must be such as to make it reasonable for the judge or jury trying the case to believe that the party at the time of the contract tacitly consented to be bound to more than ordinary damages in case of default on his part. ’ ’

The same rule has been applied to telephone companies, Southern Tel. Co. v. King, 103 Ark. 160, 146 S. W. 489, 39 L. R. A. (N. S.) 402, Ann. Cas. 1914B, 780, where it was said: “We are of the opinion that the testimony does not warrant a recovery of more than nominal damages. Even if the negligence of the operator in failing to respond to appellee’s call could be said to have been the proximate cause of his injury, resulting from exertion and exposure in walking uptown to the central office, appellant is not liable, for the reason that it had no notice of - the special circumstances -out of which the damages might arise.” And to telegraph companies, Western Union Tel. Co. v. Raines, 78 Ark. 545, 94 S. W. 700; Western Union Tel. Co. v. Hogue, 79 Ark. 33, 94 S. W. 924. This court, in Southern Telephone Co. v. King, supra, recognized a distinction in the business done by a telephone company from that done by a telegraph company when it was said: “A telephone company does not receive a message, nor does it transmit and deliver it in the ordinary acceptation of those words. . It merely furnishes to the patron facilities for carrying on a conversation at long distance.” This »is a correct statement of the fundamental difference in their respective business. A telegraph company receives, transmits and delivers messages, while a telephone company furnishes the “facilities” for conversation at a distance. Knowledge of the contents of the message is brought home to the telegraph company from the written message itself, unless it be in code, which is sometimes held to suggest its importance; whereas, the only knowledge brought home to a telephone company -is that one person d«sires to converse with another person, unless notice is given of the nature and importance of the conversation desired, and that injury will be sustained from a failure to furnish the facilities. Here the undisputed proof is that no such notice was given. A number of telegraph cases were called to our attention in oral argument by counsel for appellee which sustained recoveries for special damages, but all of them g’ave notice of their special importance on the face of the messages from which notice of special damages might be inferred. We do not feel constrained to follow such cases under the facts in this case.

It necessarily follows from what we have said that only nominal damages were recoverable, and the court should have so instructed the jury. Judgment reversed for a new trial.


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    Mid-Continent Life Insurance Company v. Parker.
    Opinion delivered March 3, 1930.

      Rittenhouse, Lee, Webster d Rittenhouse, J. M. Shinn and W. B. Foster, for appellant.

      V. D. Willis and Shouse d Rowland, for appellee.
   McHaney, J.

Appellee sued appellant, as beneficiary in a life insurance policy issued by appellant to Greorge N. Parker for $2,000. The application was dated February 9, 1929; the policy was issued dated March 1, 1929; and the insured died April 29, 1929.

Appellant defended on the grounds, (1) that the insured falsely and fraudulently misrepresented the condition of his health by stating he was in good health, that no physician had ever expressed an unfavorable opinion as to his insurability, and that he had not suffered any illness or consulted any physician during the past seven years; (2) that the premium had not been paid, in violation of the policy; and (3) that he was in bad health when the policy was delivered in violation of another provision of the policy.

There was a trial to a jury, which resulted in a verdict and judgment for appellee. For a reversal it is urged that the insured gave his note for a portion of the premium ,to the agent who took the application, and that this note had not been paid prior to the' death of the insured, in violation of a provision of the policy that the premium must be paid prior to the death of the insured. Appellant does mot contend that it was not paid its share of the premium, but only that the note given the agent was not paid. If it were important (and we do not think so), the undisputed proof shows the amount of the note was paid to the agent before the insured’s death.

It is next urged that the court erred in permitting appellee to prove wha,t occurred at the time appellant’s agent took the application for the policy. She and her daughter, who were both present, were permitted to testify over appellant’s objections and exceptions that, when Waterfield, the agent, came to write the application, the insured told him that he had been sick with the flu, that his heart was weak, and that he was taking medicine; showed him the medicine he was taking, and the agent said: “This is digitalis; my wife takes that; that don’t amount to nothing.” According to appellee and- her daughter, the agent asked the questions, and the insured gave him correct answers, held back nothing about any illness or consultation with physicians, buf that the agent wrote answers in the application to suit himself, stated his illness didn’t amount to anything, that what the company complained of was such diseases as tuberculosis, typhoid fever, efc.

It is contended that this and other similar evidence is incompetent, as also the statement of appellee to the agent when the policy was delivered that the insured was all right or improving. We cannot agree with appellant. The undisputed proof is that correct answers regarding the condition of his health and the physicians he had consulted were given the agent; that he filled out the blanks and fold the insured to sign without reading it over to him or allowing him to read the statements made therein. Under such conditions the knowledge of agent was the knowledge of the company, and, if it chose to write a policy having all such information, it cannot after death prevent the facts from being proved by showing an application to the contrary. Am. National Ins. Co. v. Hale, 172 Ark. 958, 291 S. W. 82.

.The policy provided that “all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statements shall void this policy unless it is contained in .such application.” In Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366, we said: “The burden is upon appellant to establish the fraud by proving affirmatively the falsity, materiality and bad faith in the representations made by the insured in the application regarding his health.” Here the proof is that the agent wrote the answers, not as they were given him, but as he thought best after obtaining full information of the real facts, and that the insured signed the application without' knowledge that correct answers had not been given. We think appellant wholly failed to establish fraud in making the application. See also Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4, and cases there cited.

As to the delivery of the'policy at a time when insured is in good health, we think there is no showing that he was in any worse condition than at the time of the taking of the application, in fact, the proof is that he was better. Appellant has not seen proper to abstract all the evidence, but only such parts as it deemed favorable. Appellee has supplied this omission by an abstract of the testimony regarding the insured’s health at, before, and after delivery of the policy, which we think at least made a question for the jurv as to whether the policy was delivered at a time when his health was good.

Wo find no error, and the .judgment must be affirmed.