author: Hart, J. Hart, J.,

text:
    Gray v. Doyle.
    Opinion delivered January 26, 1925.
    1. Drains — powers and liabilities op commissioners. — Under Crawford & Moses’ Dig., § 3630, continuing the existence of drainage districts after the completion of their drainage systems, the power of drainage comimássioners to construct an embankment in aid of the drainage project nine months after its completion was within the authority of the commissioners, and hence they were not individually liable for damages to plaintiff’s land from overflows caused by such embankment.

      2. Appeal and error — questions conceded below. — Under the rule that questions conceded at the trial will not be decided on appeal, held that where plaintiff’s counsel in the trial court announced that he was not seeking recovery against the drainage district, but only against the commissioners of the district in their individual capacity, an appeal from an adverse judgment against the plaintiff will not be reversed upon the ground that the district should have been held liable.
    Appeal from Lawerence Circuit Court, Western District; Dene H. Coleman, Judge;
    reversed.
    STATEMENT OE EAOTS.
    This action was instituted in the circuit court against Caney Creelc Drainage District, J. P. Doyle, I. M. Hus-key and S. E. Pinkerston, commissioners, and J. P. Doyle, I. M. Huskey and S. E. Pinkerston, individually, to recover the sum of $700, alleged to be the value of land damaged by them in the construction of a drainage ditch.
    It appears from the record that Caney Creek Drainage District was created under the general drainage laws of the State for the purpose of draining certain lands in Lawrence County, Arkansas. The drainage ditch came down from the foothills into Caney Creek, which was made a part of the drainage ditch for a certain distance. After Caney Creek got down into Strawberry Bottoms it spread over the bottoms and ran through several watercourses into Strawberry River. The Commissioners constructed the drainage ditch from a point where Caney Creek first touched the Strawberry Bottoms due east to a point where it emptied into Strawberry River. The commissioners made a contract for the construction of the drainage ditch in February, 1920, and proceeded to construct the drainage, ditch under the plans prepared by them.
    According to the testimony of the plaintiff and his witnesses, the contractors, in digging the drainage ditch, built embankments across three sloughs for the purpose of floating their boats which were used in the construction of the drainage ditch. After the construetion of the drainage ditch was finished, these embankments were cut so that- the water might again flow through the sloughs. About eight or nine months after the drainage ditch was finished, the commissioners built embankments across the same three sloughs, and this caused the waters to back up on the plaintiff’s land and permanently damage it to a material extent. One of the witnesses for the plaintiff testified that he-helped construct one of the embankments, and that it was done in the summer of 1922.
    According to the testimony of the commissioners, these embankments were erected by the contractors while -constructing the drainage ditch, and, after the drainage ditch was constructed, the waters partially washed the embankments away. They admitted that they had repaired the embankments and had built them higher and stronger. They did this for the purpose of protecting the lower landowners, and the repairing and strengthening of the embankments was a part of their plans in constructing the drainage ditch.
    The circuit judge seems to have been of the opinion that the commissioners, as individuals, caused the erection of the embankments complained of, and that there was no individual liability under the facts stated. Hence a verdict was directed in favor of the defendants. From the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      G. G. Dent and Gautney & Dudley,, for appellant.
    Where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed it is error to take the case from the jury. 103 Ark. 401; 89 Ark. 372. The strongest probative value must be given the evidence of the losing party in construing on appeal the correctness of an instructed verdict. 135 Ark. 542; 132 Ark. 441. The intention in creating the district was to protect against surface waters and had no reference to the building of levees to protect the land from overflow from channel waters, sloughs or natural drains. 142 Ark.. 286. Any plan contemplated after the completion of the original plan would necessarily be a new plan, and no authority existed for this. 154 Ark. 335. Appellees acted as individuals and not as commissioners, for the purpose of conserving- their own interest, and are therefore liable.

      L. B. Poindexter, for appellee.
    Appellees were acting- as commissioners, and as such were not liable unless they acted corruptly and maliciously. O. & M. Dig. § 3624; 94 Ark. 380; 110 Ark. 416. The Word “ditch” as used in the act included “levees.” O. & M. Dig. 3638, 3659. A verdict was properly directed under the rule announced in 57 Ark. 461. See 47 Ark. 567.
   Hart, J.

(after stating the facts). The circuit court was right in holding that the commissioners of the drainage ditch were not personally liable for the damage caused by the erection of the embankments in question; it was wrong in holding that the drainage district was not liable.

.It is claimed that the commissioners are individually liable because there was no legal authority for them to construct embankments, and because they had no authority to do anything after the construction of the drainage ditch was completed. We cannot agree with counsel in this contention. It is true that the object of the improvement district was to drain the lands within the boundaries of the district, and the general plan to do this was the digging of a drainage ditch. After the construction of the drainage ditch had been completed it was found that it was not fully adequate for the purpose for which it was intended, and the construction of the embankments across these sloughs was done by the commissioners in order to carry out the project of draining the lands within the boundaries of the district. It was thought that the damming up' of these sloughs would cause the water from above to flow down the drainage ditch, and not spread out over the lower lands, as it had done before. In aid of the project, the lower end of the drainage ditch was deepened to a certain extent, but this was not sufficient to carry off the waters which had been impounded by the construction of the embankments. This caused the waters to flow back over the land of the plaintiff and to materially damage it in a permanent manner.

Section 3630 of Crawford & Moses’ Digest provides that the drainage district, after the completion of the drainage system, shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstructions, and of extending, widening or deepening the ditches from time to time, as it may be found advantageous to the district.

We think the authority here given includes the power to build the embankments in question for the purpose of turning the water into the drainage ditch in aid of the drainage system. As we have already seen, the erection of these embankments caused the water to flow back on the land of the plaintiff and to permanently damage it. This act of .the commissioners in building the embankments was a new taking or damage to the land of the plaintiff within the meaning of the Constitution, and, being in furtherance of the original plan of draining the lands of the district, the district was liable to the owner whose land was damaged, within the rule announced in Road Dist. No. 6 v. Hall, 140 Ark. 241.

Again, in Sain v. Cypress Creek Drainage District 161 Ark. 529, it was held that injury to lands from the construction and operation of a drainage project is within art. 2, § 22, of our Constitution, providing that no private property shall be taken or damaged for public use without just compensation. In that case the majority of the court held that the damage complained of was one which was in contemplation at the time the drainage district was created, and was taken into consideration by the board of commissioners in assessing the benefits and arriving at the damages suffered by the landowners by the construction of the drainage ditch. Hence they found that there was no change of plans subsequent to the assessment of benefits, and no additional taking or damage to .the property, as was the case of Road Dist. No. 6 v. Hall, 140 Ark. 241.

The writer wrote a dissent in that case, but it was based wholly upon the ground that practically the undisputed facts showed that there had been a new taking or damage to the property of the complaining landowners.

It sufficiently appears, from the testimony of the plaintiff and his witnesses, that the construction of the embankments across the three sloughs as they now exist was not a part of the plans of the original improvement. The plaintiff says that the embankments that were constructed by the contractors were for the purpose of impounding the waters so that they might float the boats used in digging the canal, or drainage ditch, and was not a part of the improvement. The commissioners admit that they strengthened and built the embankments higher than they were originally. They also admit that this was done nine months after the drainage ditch was completed, and it is fairly inferable that it was not a part of their original plans. Hence the court erred in holding that there was no liability on the part of the drainage district, and in directing a verdict in its favor. As we have already seen, the. commissioners did not act without legal authority in building the embankments, and, for that reason, there is no personal liability against them.

Section 3930 of Crawford & Moses’ Digest provides that, whenever any corporation authorized by law to appropriate private property for its own use shall have entered upon and appropriated such property, the owner shall have the right to bring an action against such corporation in the circuit court of the county in which the property is situated, for damages.

The suit in the present case was brought within the statutory period, and it results, from the views that we have expressed, that the circuit court erred in directing a verdict in favor of the drainage district.

Therefore the judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.

Hart, J.,

(on rehearing). Counsel for appellees call our attention to the fact that counsel for appellant announced at the trial of the case that they were not seeking any recovery against the drainage district, but were seeking to recover against the commissioners as individuals. Therefore counsel for appellees insist that it is too late now for the appellant to shift his ground and ask for a reversal of the judgment against the commissioners individually who are held not to be personally liable under the opinion in this case.

Counsel for appellees are correct in this contention. In St. Louis Southwestern Ry. Co. v. White Sewing Machine Co., 78 Ark. 1, and in other decisions of this court, it has been held that questions that were conceded at the trial will not be decided on appeal.

We deem it proper to say that the drainage district was made a defendant to the action in the circuit court, and we do not find in the record any order dismissing the case as to the district. Therefore, the case is still pending against the drainage district in the court below and the rights' of the respective parties on that branch of the case have not been decided and are not involved in this appeal.

The result of our views is that the motion for a rehearing filed by appellees will be granted, and the judgment of the circuit court in favor of the commissioners as individuals will be affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    W. D. Stroud v. State.
    Opinion delivered February 16, 1925.
    1. Criminal law — corroboration of accomplice. — While one charged with a conspiracy to commit a crime cannot be convicted upon the uncorroborated testimony of his accomplices, be may be convicted upon such testimony if corroborated by his own acts or declarations done or made either before or after the commission of the crime.
    2. Criminal law — acts and declarations of conspirators. — The ■acts and declarations of conspirators done and made during the exitsenee or furtherance of the conspiracy are imputable to all and admissible against each other, though not made in the presence of each other, but such acts and declarations of a conspirator, done or made after the accomplishment of the enterprise, are not admissible against his co-conspirators unless done or made in their presence.
    3. Criminal law — statements of co-conspirator. — In a prosecution for being accessory before the fact to the crime of arson, testimony as to a conversation between two of defendant’s fellow conspirators, after the arson and not in his presence, is inadmissible.
    Appeal from Franklin Circuit Court; James Cochran, Judge;
    affirmed.

      John, E. Chambers, J. P. Clayton, Benson & Benson, and Hays, Priddy & Hays, for appellant.

      J. 8. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the Northern District of Logan County, and, on change of venue to the Ozark District of Franklin County, was convicted upon the charge of accessory before the fact to the crime of arson, and, as a punishment therefor,was adjudged to serve a term of two years in the State Penitentiary, from which is this appeal.

The indictment charged, in substance, that one T. B. Wackerly, at the instance of appellant, procured Floyd McCuen and John Carney to burn a certain storehouse at Ratcliff belonging to R. A. Harkins & Company. In other words, the indictment charged that said storehouse was burned through a conspiracy in which appellant and T. B. Wackerly were co-conspirators. The theory of the State was that appellant and his brother, Floyd Stroud, advised and encouraged T. B. Wackerly to employ Floyd McCuen and John Carney to burn said storehouse. When Floyd McCuen and John Carney were arrested for burning the storehouse they admitted their guilt, and implicated T. B. Wackerly, claiming that he had employed and agreed to pay them $150 for burning said house. T. B. Wackerly admitted his guilt, and testified, in substance, that appellant and his brother, Floyd Stroud, had induced him to employ Floyd McCuen and John Carney to burn said storehouse and had furnished him the money with which to pay them; that their purpose was to get rid of a business competitor of Floyd Stroud. The house was burned by Floyd McCuen and John Carney on the night of November 29, 1923.

The first contention of appellant for a reversal of the judgment is that there is no evidence in the record except that of Tom Wackerly and other alleged co-conspirators that appellant had any connection with this crime. It is true that there is no evidence in the record tending to connect him with the crime, prior to the burning of the house, aside from that of J. B. Wackerly; but the State introduced witnesses who testified to certain declarations and acts of appellant after the house was burned, tending to connect him with the crime. While one charged with a conspiracy to commit a crime cannot be convicted on the uncorroborated evidence of his accomplice or accomplices, yet he can be convicted] upon the testimony of his accomplices if corroborated by his own acts and declarations done or made either before or after the commission of the crime.

The rules of evidence applicable are, first, that the acts and declarations of co-conspirators done and made during the existence or furtherance of the conspiracy are imputable to all and admissible against each other, though not made or done in the presence of each other. Wharton on Criminal Evidence, § 698; Cox v. Vise, 50 Ark. 283; Gill v. State, 59 Ark. 422. And second, that, after the accomplishment of the enterprise, the acts or declarations of a co-conspirator are not evidence against the others unless done or made in their presence. Counts v. State, 20 Ark. 462; Housley v. State, 143 Ark. 315. And third, that acts and declarations of a co-conspirator done and made after the accomplishment of the enterprise are not evidence against any one of the conspirators except himself. 1 R. C. L., pp. 520, 521, and cases cited in support of the rule in footnote No. 18.

Under the rules of evidence announced above there was sufficient corroboration of the testimony of the accomplices to sustain the verdict.

Appellant also contends for a reversal of the judgment upon the alleged ground that the court admitted incompetent testimony. We have read the evidence very carefully, and think all of it was competent and admissible under the rules announced, except the telephone conversation between Floyd McCuen and Floyd Stroud, two of the alleged co-conspirators, which occurred after' the arson, while Floyd McCuen was in jail, and in the absence of appellant. Two objections were made to the admission of this testimony .by counsel for appellant, and the admission thereof was made a ground for reversal in appellant’s motion for a new trial. It was not admissible upon the theory that the conspiracy existed after the crime was committed. Appellant was not charged as accessory after the fact nor with being in a conspiracy to conceal the crime, but, on the contrary, was specifically charged with the sole crime of accessory before the fact to the arson.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.

The Chief Justice and Justice Smith dissent, on the ground that the testimony tends to show that the conspiracy was continued to suppress evidence of the crime by extricating Wackerly from the charge and by packing the grand jury to prevent indictments, and that the acts and declarations of all the co-conspirators were competent against each.


text:
    Floyd Stroud v. State.
    Opinion delivered February 16, 1925.
    1. Criminal law — conversation of defendant and accomplice.— In a prosecution for being accessory beforei the fact to the crime of arson, testimony as to- a telephone conversation between defendant and a co-oconspirator, though had after consummation of the conspiracy, is admissible where it involved proof of something which defendant himiself did and which had a probative value in the case.
    2. Criminal law — acts of co-conspirator after commission of offense. — 'Where defendant and another were charged with inducing a third person to commit arson, testimony that defendant’s co-conspirator after its commission gave to witness money for defense of such third person was incompetent against defendant, though witness delivered the money to the attorney in. defendant’s presence where it does not appear that defendant understood or was party to the transaction.
    Appeal from Franklin Circuit Court; James Cochran, Judge;
    reversed.

      J. E. Chambers, Benson <& Benson, June P. Clayton, Linas A. Williams and Hays, Priddy $ Hays, for appellant.

      J. 8. Utley, Attorney General, und Darden Moose, Assistant, for appellee.
   Humphreys, J.

What we have said in the case of W. D. Stroud v. State, No. 3029, is decisive of the case of Floyd Stroud v. State. These are companion cases. The appellants are brothers, and, while they were separately tried, they were each tried upon the theory that they had conspired together to cause the storehouse of R. A. Harkins & Company to be burned, and that, pursuant to this conspiracy first formed between themselves, they had employed T. B. Wackerly to burn the building, or to procure some one to do so. Much of the testimony in the two cases is identical, and no useful purpose would be served in repeating it here or in restating the theory on which the State asked and secured a conviction.

The admission of the testimony in regard to the telephone conversation between Floyd McCuen and Floyd Stroud was condemned as erroneous and prejudicial in the case of W. D. Stroud, because it occurred after the consummation of the conspiracy and in the absence of W. D. Stroud.

But this testimony was admissible against Floyd Stroud, because it involved proof of something which he himself did, and proof of any act or declaration of the party on trial having probative value is admissible against him, even after the completion of the conspiracy.

The case against Floyd Stroud must, on the authority of what we have said in the W. D. Stroud case, be reversed, however, on account of the admission of the testimony of Roscoe Perkins. This witness testified that he knew both W. D. Stroud and Floyd Stroud, and remembered the occasion of the burning of the Harkins & Company building at Ratcliff. That W. D. Stroud had given him $100 in bills to deliver to the attorney who was representing Wackerly, and that he delivered this money to the attorney in Floyd Stroud’s store. The witness was asked: “Was it given to him (the attorney) in his (Floyd Stroud’s) presence?” and he answered, “Yes sir, but I could not say whether Floyd saw it or not.” He was also asked, “Where was Floyd Stroud?” and he answered, “Talking with the attorney when I gave him the money.” The witness had previously testified that Floyd Stroud did not know anything about the matter unless he had seen the witness give the attorney the money.

We do not think it sufficiently appears from this testimony that Floyd Stroud was a party to the payment of this fee, or that he knew what it was. No explanation of it was made at the time by the witness to the attorney, nor did the witness state that he told Floyd Stroud what he intended to do or had done. So far as the testimony shows, this may have been, and was, a transaction without significance to Floyd Stroud, and, in the absence of some showing charging him with knowledge of the transaction, it would be like any other act of an alleged co-conspirator after tbe end of the conspiracy, and would be inadmissible, under the rule announced in the W. D. Stroud case, and, on account of the admission of this incompetent testimony, which was necessarily prejudicial, the judgment in the Floyd Stroud case will also be reversed.

McCulloch, C. J., and Smith, J., dissent.


text:
    Victora Bank of Strong v. West.
    Opinion delivered February 23, 1925.
    1. Appeal and error — review of evidence to- support verdict. — In testing on appeal the legal sufficiency of the evidence to support a verdict, the evidence must ¡be viewed in the light most favorable to the findings of the jury.
    2. Bills and notes — acceptance of check — evidence.—In an action against a bank for the value of a check alleged to have been accepted ias a deposit, where the defense was that it was accepted for collection only, evidence held to support a verdict against the bank.
    3. Appeal and error — harmless error — instruction.—A statement in an instruction, on the issue as to whether a check was accepted by defendant bank as a deposit or for collection only, that the bank -could not escape liability on the ground that the deposit was not credited on the books of the bank, though surplusage, was no-t prejudicial.
    4. Banks and banking — deposit slip — burden of proof. — In an action for the -amount of a check alleged to- have been accepted by defendant bank as a- deposit, the burden of proving that the deposit slip issued by defendant for the amount of the check was in fact contingent and not an absolute deposit, was on the bank.
    5. Banks and banking — deposit—evidence.—Where the issue was ■ as to whether defendant bank received from plaintiff -a certain check for deposit or for collection merely, testimony -as to how the bank handled .the cheek in plaintiff’s absence and without his knowledge was properly excluded as immaterial.
    Appeal irom Union Circuit Court, L. 8. Britt, Judge;
    affirmed.

      Mahony, Tocmn é Saye, and J. N. Saye, for appellant.
    A verdict should have been directed in favor of the defendant, not olily because a jury’s verdict must be based upon evidence legally aufficient to support, and because of the conditions precedent to the payment of the check, viz: that West should furnish Gathright an attorney’s opinion on the title, which was not furnished, but also because all reasonable inferences to be drawn from the evidence and circumstances of the case are against the appellee. 70 Ark. 386; 114 Ark. 119; 103 Ark. 61; 113 Ark. 353; 117, Ark. >643; 44 S. W. 1059; 18 N. J. Law (3 Har) 339; 44 Wis. 332; 95 Me. 458. The court erred in instructing the jury that the burden of showing that the issuance of the deposit slip was contingent, and not in payment of the check, was upon the bank. 141 Ark. 235, 241 and cases cited; 2 Jones, Blue Book of Evidence, 384, § 491.

      Pat MoNally, for appellee.
    The check was not accepted and receipted for as a regular deposit, as appears by the testimony of the bank’s cashier but merely as an item for collection. It was proper, therefore, to instruct the jury that if the check was presented for payment in the regular course of business, and the cashier, without any qualifications or contingencies limiting the liability of the bank, accepted the check and issued the bank’s usual and ordinary deposit slip covering the amount of the check in lieu of payment thereof in cash, the bank could not escape liability, etc. 119 Ark. 373. The burden rested on the bank to show that the deposit slip was not in payment of the slip. Id. 375.
   Humphreys, J.

Appellee brought suit against appellant in the circuit court of Union County to recover $1,200, averring that, on the 30th day of April, 1921, he and his wife executed and delivered to E. F. Gathright an oil and gas lease covering certain lands in said county; that the consideration of said lease was $1,200, for which Gathright gave appellee his check drawn, on appellant bank; that said check was indorsed, “To be paid when J. A. West delivered an abstract of title to said land to the bank;” that on May 24, 1921, appellee delivered said bank an abstract of title to said land for Gathright, and presented said cheek to said bank for payment; that said bank accepted said abstract, honored said check, and gave appellee a deposit receipt for same; that, about three weeks after accepting said check and receipting for same, appellant notified appellee that it would not. honor its check if drawn against said bank for said sum; that appellee has demanded payment of said sum from said bank, and that appellee refuses to pay it to him.

Appellant filed .an answer to the complaint denying the material allegations therein, and, by way of further defense, alleged that on the 30th day of April, 1921, E. F. Gathright, as trustee, drew his check on said bank, payable to appellee and his wife, in the sum of $1,200; that said check bore the following indorsement: “To be paid on the delivery of abstract of title and an attorney’s opinion;” that said check was delivered by appellee to appellant on May 24, 1921, on condition that it would be honored by appellant when appellee delivered to appellant an abstract of title covering said land, together with a reputable attorney’s opinion approving title to said land, if Gathright approved the payment of said check; that, subsequient. to delivery of said check to appellant by appellee, the Title Guaranty & Abstract Company of El Dorado, Arkansas, prepared an abstract of title covering said land and forwarded same to appellant, with a draft attached for the cost of preparing abstract; that, upon receipt of said abstract and draft, appellant notified appellee; that appellant .refused to pay the charges for said abstract; that, after allowing appellee a reasonable time in which to pay for said abstract, appellant returned it and the draft to the Title Guaranty & Abstract Company; that appellee has at no time since the delivery of the check to appellant delivered to dt an attorney’s opinion on the title to the land described in the complaint; that ¡appellee violated and breached his contract with Gathright; that said Gathright has at no time authorized appellant to pay said check to the appellee, and that appellee is without authority to pay same.

The cause was submitted to a jury upon the pleadings, the testimony adduced by the respective parties, and the instructions of the court, which resulted in a verdict and judgment against appellant in favor of appellee for $1,200, from which is this appeal.

Appellant’s main contention for a reversal of the judgment is the alleged insufficiency of the evidence to support the verdict. In testing the legal sufficiency of the evidence to support the verdict, the court must view the evidence in the strongest light favorable to the findings of the jury, or, in other words, the strongest probative force should be given to evidence in support of the verdict; and, when so treated, the verdict must stand if there is any substantial evidence to support it. St. L. I. M. & S. R. Co. v. Coleman, 97 Ark, 438; Same v. Evans, 99 Ark. 69; St. L. & S. F. R. Co. v. Wells, 82 Ark. 372.

The testimony in the record most favorable to the verdict is that of appellee himself, which is to the effect that he sold E. F. Gathright outright an oil and gas lease for $1,200 on April 30, 1921, for which amount he received a check from Gathright, drawn upon appellant, upon which was indorsed, “To ¡be paid when J. A. West delivers an abstract of title to said land to the bank;” that he had the abstract sent to the bank; that, on the......... day of...........19......, he presented the check to L. G. Tucker, assistant cashier of the bank, who was working at the cashier’s window, and asked if the abstract was there; that he said it was, and that the check was O. K.; that he gave him a deposit slip for $1,200, without condition or contingency; that the abstract was not held up on account of a failure to pay the balance due on it, as he had told Mr. Murphy to send him the bill for it and he would pay it off at any time; that he afterwards requested the hank to pay the $1,200, but it refused to let him have it; that the deposit slip given him had no notation upon it showing that the check was accepted for Collection only, and same was introduced as an exhibit to his testimony; that the check for $1,200 given him by Gathright had no notation upon it, at the time he received and deposited it, with reference to an ¡attorney’s opinion being furnished as to the sufficiency of the title; that, at the time he deposited it, the cashier said to him that Gathright had' told him to pay the check.

While the testimony introduced by appellant was in conflict with the testimony detailed above, yet, according to the tests for determining the legal sufficiency thereof to support the verdict, appellee’s testimony must be treated as true on appeal. It is not within the province of the court on appeal to pass upon the weight of the evidence and the credibility of the witnesses. The jury was the sole judges of those matters, and appellant was and is concluded by the verdict.

The issues of fact with reference to the abstract, the attorney’s opinion, and whether Gathright acted as a broker for appellee in the sale of the lease, or whether he purchased it outright, were left in dispute by the conflicting testimony of the several witnesses, and cannot be treated on appeal as settled one way or the other by the undisputed evidence.

Appellant next contends for a reversal of the judgment because the court gave appellee’s requested instruction No. 1, which is as follows: “1. Yon are instructed that, if you believe from the evidence in this case that the plaintiff presented the check of E. F. Gathright to the cashier of the defendant bank for payment in the regular course of business, and the said cashier, without any qualifications or contingencies limiting the liability of said bank, accepted said check ¡and issued to the plaintiff its usual and regular deposit .slip, covering the amount of said check, in lieu of payment thereof in cash, said bank could not escape liability to the plaintiff on the ground that the cashier or other employee of the said bank had not placed the deposit to the credit of the plaintiff, on the books of the bank.”

The objection to the instruction is that it was abstract. We think there was evidence in the record which justified the instruction. L. G. Tucker testified that he accepted and receipted for the check merely as an item for collection. Appellee testified that it was received and accepted as a deposit. It is true that it was immaterial whether the officers of the bank gave West credit for the check, if it was received as a deposit, as he would not be bound by the manner or method of treating the check, without his knowledge or in his absence, yet we are unable to see how the last clause in the instruction could have misled the jury. The instruction submitted the main issue in the case, and, while the last clause therein was surplusage, it resulted in no prejudice to the appellant’s rights.

Appellant’s next contention for a reversal of the judgment is because the court gave appellee’s requested instruction No. 2, which, in effect, told the jury that the burden of showing that the issuance of the deposit slip was contingent, and not in payment of said check, was upon appellant. The deposit slip purported on its face to be a deposit of $1,200, and not a deposit o'f a check for collection, hence the burden rested upon the bank to show that the deposit slip was not given in payment of the check. Arkansas Bank & Trust Co. v. Bishop, 119 Ark. 375.

Appellant’s next and last contention for a reversal of the judgment is that the trial court refused to permit M. L. Summers to testify that the bank handled the check as an escrow agreement. The real issue was, not how the bank handled the check, but whether it received the check as a deposit or for collection. As before stated, West could not be bound by the method in which the check was treated, in his absence and without his knowledge. The testimony was therefore immaterial, and the court did not err in excluding it.

No error appearing, the judgment is affirmed.