text:
    Rivers v. House.
    Opinion delivered November 14, 1921.
    1. Guaranty — notice op acceptance. — An offer to guaranty the purchase money of land, which was conditioned upon the satisfaction of a mortgage and was coupled with a request for an answer, did not become binding where the vendor failed to answer, though he did procure the satisfaction of the mortgage.

      2. Vendor and purchaser — payment op purchase money. — Where a vendee delivered a cashier’s check to the vendor in payment of the purchase money of land, and the issuing bank failed before paying the check, the bank being the vendee’s agent, the loss of the purchase money by its failure must fall upon the vendee, and not upon the vendor.
    3. Estopfel — what does not constitute. — A vendor of land was not estopped from suing the purchaser for the unpaid part of the purchase price by reason of having presented a claim to the receiver of a bank on which he had a check for such balance; ' such act constituting an effort to collect the money by presenting his check or claim to the proper authorities for payment.
    Appeal from White Chancery Court; J. E. Martilléalo, Chancellor;
    affirmed.

      John E. Miller and G. E. Tingling, for appellant.
    1. There was. a consideration' for the guaranty of appellee bank to the appellant in this: that he suffered detriment and expense on account of the telegram, and the bank retained the use of the money for more than ten days, and House obtained a direct benefit on account of the action of the bank, and the bank by its action in the matter hoped to make a customer of House. This comes within the rule establishing consideration, in Elliott on Contract, vol. 1, p. 337, § 207, and vol. 5, p. 9, § 3936.
    The telegram constituted an unconditional promise to pay, and no notice or acceptance from appellant was required, but only his performance of the thing required, which was done. Ill Ark. 415; 71 Ark. 585; 105 Ark. 443; 144 Ark. 522; 187 S. W. 628; R. C. L. vol. 12 p. 1064, § 13.
    Appellant should not be held to be estopped because he presented a claim on the cashier’s check against the First National Bank, as the appellees are getting the direct benefit of the amounts so collected. This action brings appellant within the rule stated in 131 Ark. 82.
    The act of the’ cashier in sending the telegram was not ultra vires, appellant having performed his part of the contract had the right to presume that the telegram was sent upon proper authority. 96 Ark. 602; 74 Ark. 377; 91 Ark. 367; 96 Ark. 308.
    2.. The finding made by the chancellor that appellee House wias liable is one of fact and should be sustained under the ruling in the following cases: 144 Ark. 573; 138 Ark. 454; 138 Ark. 403; 135 Ark. 607; 132 Ark. 95.
    • , The First National Bank was the agent of House and not of appellant, and House is liable to appellant by reason of the failure of the bank.to pay over the money to him. 55 So. 47; 34 L. R. A. (N. S.) 734.

      Brundidge £ Neellg, for appellee.
    1. It was Rivers’ duty, made so by statute, to have satisfied the mortgage, and it cannot be said that any advantage passed to either the bank or House by not doing so.
    The telegram was not an absolute guaranty, but only an offer of guaranty. What else could be the meaning of the word “answer” in the telegram? There was no consideration whatever for the alleged guaranty.' A showing of “consideration” is necessary before the bank would be liable. Ill Ark. 223; 20 Cyc. p. 1397 and pp. 1413 and 1417; 93 N. Y. 273; 45 Am. Rep. 209; 127 Mo. 327; 4 Ark. 76; 93 Fed. 171; 104 N. E. 346; 104 H. S. 159:; 12 R. C. L. 1067, 1076; 15 A. & E. Am. Gas. 1166.
    Appellant should'be estopped by reason of his having filed a claim with the receiver of the First National Bank, thereby recognizing that bank as his agent, and further preventing House or the F. & M. Bank from filing a claim.
    The act of the cashier in sending the telegram was not binding’ on the bank. 138 Ark. 124; 260 Pa. 223.
    2. The First National Bank was recognized by Rivers as his agent, when he filed his claim with the receiver, and he should now be barred from bringing suit against House. 124 Ark. 536. and cases cited.
   Wood, J.

One H. H. Capps was the agent of W. W. Rivers to sell for him certain lands near Judsonia, Arkansas. Capps negotiated for a sale of the lands to W. L. House for a consideration of $3,600. Rivers executed a deed and sent same to Capps for delivery; but this deed was not satisfactory in form, and, at the suggestion of House, on March 29, 1920, Rivers mailed a second deed to House 'in care of the First National Bank at Judsonia. Rivers had received from House through the First National Bank the sum of $600 as part payment of the purchase money. Some time elapsed, and Rivers began to urge in letters to that bank the payment of the balance of the purchase money, or a return of his deed. A letter of May 12, 1920, advised the First National Bank to return the deed to Rivers unless its client would take up same and' pay balance of purchase money in twenty-four hours. On May 15, 1920, the First National Bank wrote Rivers inclosing cashier’s check for $2,996, balance due on purchase, and stating that House had been ill, and the payment thus delayed. Rivers received the above letter and cashier’s check on May 17, 1920, and on the same day he received from the Farmers & Merchants Bank of Judsonia (hereafter called Farmers Bank) the following telegram: “This .bank guarantees payment three thousand dollars for W. L. House on your deed upon satisfaction oif mortgage on lands — answer.” The telegram was the first information Rivers had that there was a mortgage of record on the’ lands unsatisfied. Rivers had mortgaged the lands to the Bank of Hattiesburg, Mississippi, March 2, 1912. The mortgage was settled that year, but the record had not been satisfied, and River held the cashier’s check pending orders from the Hattiesburg Bank to satisfy the mortgage on the record. Rivers did not deposit the cashier’s check in his home bank for collection until about ten days after receiving it. The- First National Bank, on which the cashier’s check was drawn, did not request Rivers to withhold the deposit, and the check, he says, was not deposited because of the telegram of the Farmers Bank. River's sent a release — satisfaction—of the mortgage for record, and at the same time sent the cashier’s check to the First National Bank. That bank, in the meantime, had become insolvent, and was in the hands of a receiver, so when the check was presented it was not paid.

This action was instituted by Rivers against .House and the Farmers Bank to recover the balance of the purchase money. House defended on the ground that he had paid the balance of the purchase money. The Farmers Bank defended on the ground that the telegram sent by it to Rivers was without consideration, and furthermore was only an offer of guaranty which was never accepted. Both House and the Farmers Bank also defended on the ground that Rivers had presented a claim for the amount involved to the receiver of the First National Bank which estopped him from claiming against them. Such other facts as may be necessary will be stated as we proceed.

The court rendered a decree dismissing the complaint against the Farmers Bank for want of equity, and a decree in favor of Rivers against House for the sum of $1899.47, and declaring same a lien, etc. Rivers appealed, and House has taken a .cross-appeal here.

Thé first question is: Was the appellee, Farmers Bank, liable on the telegram. The telegram was only an offer of guaranty. The appellee bank could not know until same was answered whether appellant was willing and able to satisfy the mortgage of record and whether the offer was accepted and would be relied on by him. The offer to guarantee payment by appellee bank was conditioned upon the satisfaction o'f the mortgage; and the request for an answer indicated that the appellee bank did not know whether the appellant would or could have such satisfaction entered of record.

In Bishop v. Eaton, 161 Mass. 496, it is held, quoting syllabus: “Ordinarily, there is no occasion to notify a guarantor of the acceptance of an offer of guaranty,’ for the doing of the act specified in the offer is a sufficient acceptance; but when the guarantor would not know of himself from the nature of the transaction whether the offer had been accepted or not, he is not bound without reasonable notice of the acceptance seasonably given after the performance which constitutes the consideration.” See also Davis Sewing Machine Co. v. Richards, 115 U. S. 524; Davis v. Wells, 104 U. S. 159; Whiting v. Stacey, 15 Gray 270.

The appellant never notified the appellee bank that he would satisfy the mortgage of record. The appellee bank requested the appellant to answer in effect whether or not the mortgage would be satisfied' of record. The appellant did not answer, and therefore there was no acceptance, no meeting of minds, and no completed contract of guaranty upon which the appellee bank can be held liable. The decree of the chancery court dismissing the appellant’s complaint against the Farmers Bank is correct.

It could serve no useful purpose, and it would unduly lengthen this opinion, to set out and discuss in detail the testimony bearing upon the issue of fact as to whether or not the First National Bank was the agent of House in the negotiations for the sale of this land by appellant and the purchase thereof by the appellee House. We are convinced that a preponderance of the testimony shows that the First National Bank was the agent of House and not the agent of appellant. The Farmers Bank paid the check which appellee House had drawn in favor of the First National Bank to pay appellant the balance of the purchase money, and the First National Bank received this money for appellee House. If it had honored its cashier’s check, in doing so it would have been acting for the appellee House and not the appellant Rivers. See Virginia-Carolina Chemical Co. v. Steen, 55 So. 47 (Miss.), 34 L. R. A. (N. S.) 734. The First National Bank had in its hands the money of House which it was holding as his agent or representative, and not as the agent or representative of the appellant, and, as 'between appellant and appellee House, the neglect or failure of the First National Bank to pay the check and the resultant loss must fall on the appellee House, rather than on the appellant. The decree' therefore in favor of the appellant against the appellee House is also correct.

The appellant is not estopped, because he presented a claim to the receiver of the First National Bank for the balance of the purchase money due him. That act should be viewed in the light of an effort to collect his money by presenting the check or claim to the proper authorities to make payment of same. It was not an election-by appellant to pursue the bank rather" than House. It was to the interest of the appellee House that such claim be made. There is certainly nothing in this to -prove that the appellant had recognized the First National Bank as his agent for the collection of the balance of the purchase money due him. The decree is in all things correct, and it is affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Davis v. Smith.
    Opinion delivered November 14, 1921.
    1. Carriers — federal control act — construction.—The Federal Control Act was an exercise of paramount power which superseded the State’s power to fix intrastate passenger rates.
    2. Carriers — federal control act — liability for penalties. — It was not the purpose of section 10 of the Federal Control Act to allow the Government to he sued for penalties.
    Appeal from Saline Circuit Court; W. H. Evans, Judge;
    reversed.

      Thomas 8. Busbee, II. T. Harrison and G. L. Johnson, for. appellant.
    1. At the time the overcharge complained of occurred, the railroad was being’ operated by the Director General of Railroads, the road having been placed under Federal control by proclamation of the President in the exercise of the war powers conferred upon him by act of Congress of August 29, 1916; and rates had been initiated pursuant to the Federal Control Act of March21, 1918, § 10. There was therefore no violation of the State statute. 250 U. S. 135.

      2. The Federal Control Act does not permit recovery of fines or penalties provided by State statutes from the Government. Missouri Pacific R. R. Go. v. Ault, 41 S. C. Rep. 593. § 887, C. & M. Digest, is a penalty statute. 114 Ark. 517; 95 Id. 218; 95 Id. 211.
    No brief for appellee.
   Wood, J.

This is an action by the appellees against the appellant to recover the statutory penalty provided in section 887, Crawford & Moses’ Digest, for an admitted overcharge of passenger fare paid by the appellees for the transportation of their minor child between Bauxite, Arkansas, and Benton, Arkansas, on November 22, 1919. The Chicago, Rock Island & Pacific Railway Company’s train on which the child was a passenger was at the time being operated by Walker D. Hines as Director General of Railroads under the proclamation of the President of the United States in exercise of the war powers conferred upon him by acts of Congress August 29, 1916, and March 21, 1918. Section 10 of the latter act provides: “That, during tlie period of Federal control, whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, classifications, regulations, and practices by filing the same with the Interstate Commerce Commission, which said rates, fares, charges, classifications, regulations, and practices shall not be suspended by the commission pending final determination.”

The justness and reasonableness of these fares initiated . by order of the President were under the act subject to review by the Interstate Commerce Commission, such commission at the hearing to take into consideration the fact that the transportation systems were being operated under a unified and coordinated national control- and the finding and certificate of the President and his recommendations concerning the expense of operation under Federal control. The passenger tariff in effect at the time of the overcharge was one promulgated by the government railroad administration and approved by the Interstate Commerce Commission, known as local passenger tariff No. 28, and contained in a schedule of passenger fares between local points on the Arkansas Division of the Chicago, Rock Island & Pacific Railway Company, of which Bauxite and Benton are stations.

In Northern Pacific Railway Company v. North Dakota, 250 U. S. 135, it is held, quoting syllabus: “The Federal Control Act being an exercise of a complete, exclusive and necessarily paramount Federal power (the war power) and its provision for a 'complete change to Federal control being clear and unambiguous, there can be no room for a presumption that State control over intrastate rates was to remain unchanged because it previously existed.” It is further held that the Government under the Federal Control Act “is granted the power through the President and the Interstate Commerce Commission to fix the rates on intrastate traffic, superseding the State power over that subject.”

It follows that the present action will not lie to enforce the penalty imposed by section 887, Crawford & Moses’ Digest.

In the recent case of Missouri Pacific Ry. Co. v. Ault, 41 S. C. Rep. 593, it was held that it was not the purpose of sections 10 and 15 of the Federal Control Act of Congress to allow the Government to be sued for penalties. Justice Brandéis, in that case, speaking for the Supreme Court of the United States, said: “The purpose for which the government permitted itself to be sued was compensation, not punishment. In issuing General Order No. 50, the Director General was careful to confine the order to the limits set by the act, by concluding the first paragraph of the order, 'provided, however, that this order' shall not apply to actions, suits, or proceedings for the recovery of fines, penalties and forfeitures.’ ”

The judgment is therefore reversed, and the cause dismissed.


text:
    Murry v. State.
    Opinion delivered November 14, 1921.
    1. Criminal law — motion in arrest of judgment — sufficiency of indictment. — Certainty in an indictment is required when charging an offense, and a demurrer thereto should be sustained unless the language of the indictment charges an offense with reasonable certainty, so as to put the accused on notice of the nature of the charge he is called upon to meet; but, when the sufficiency of the indictment is called in question by motion in arrest of judgment, the rule is different, an^ if it can be gathered from the language of the indictment that the essentials of the crime are charged either directly or by reasonable inference, then the motion should be overruled.
    la. Indictment and information — word “said” defined. — The word “said” in legal terminology, and as used in an indictment to designate the defendant, means aforementioned, already spoken of, and refers back to a previous mention of defendant’s name.
    2. Indictment and information — mistake in naming offense.— It is immaterial that the indictment misnames the offense as one of removing mortgaged property, if the particular facts necessary to constitute the offense are specifically and accurately alleged as being the offense of removing property subject to a landlord’s lien.
    ■ 3. Landlord and tenant — removal of crop subject to lien.— As the gravamen of the offense of removing a crop beyond the State is the intent to defeat the landlord’s lien, testimony tend: ing to prove that the landlord had authorized or consented to the removal was competent.
    4. Landlord and tenant — removal of crop subject to lien — instruction. — An instruction, in a prosecution for removing cotton subject to a landlord’s lien from the State, to the effect that if the defendant removed the cotton from the State “without the legal authority or consent of the prosecuting witness,” the jury should convict him, was erroneous in using the word “legal,” being calculated to mislead the jury.
    5. Landlord and tenant — removal of crop subject to lien — instruction. — A request for instruction, in a prosecution for removing a bale of cotton subject to a landlord’s lien, from the State, that if the prosecuting witness, either in person or by his duly authorized agents, consented to the removal of the bale of cotton in controversy, you should acquit the defendant, was correct and should have been declared the law.

      Appeal from Craighead Circuit Court, Jonesboro District; R. E. L. Johnson, Judge;
    reversed.

      Sloan & Sloan, for appellant.
    1. The offense, if any, became complete in Crittenden County, and the venue of the action was in that county. The presumptive rule from the law of sales adopted by the court, that a delivery to the carrier was delivery to the consignee, applies only between a vendor and vendee, and is a presumption which was never intended to apply to a criminal case. 10 C. J. 228, § 317; 63 Md. 179; 141 Ark. 161; 71 Id. 398. Section 2875, C & M. Digest, does not apply. 16 Corpus Juris, 195; 150 Iowa 46; 129 N. W. 336; 13 Mont. 112; 32 Pac. 413; 19 L. R. A. 775 and note; 21 Wend. 509.
    2. The indictment is defective in not charging the offense — omits to name any one as the person who removed the cotton. An indictment should be certain to every intent, and without intendment to the contrary. 6 Ark. 165; 42 Am. Dec. 689; 22 Cyc. 293. C. & M. Dig., § 3017, relates only to the correction of misnomers. 110 Ark. 51. The Phillips case, 35 Ark. 384, is not in point. In that case no inconsistency occurs in the indictment by accusing a person of removing mortgaged property, and then, as in this case, charging an unnamed person, or blank, with removing property subject to a landlord’s lien. 27 Idaho 223; 147 Pac. 786; 199 Mo. 261; 97 S. W. 860.
    3. There was a fatal variance between the allegation in the indictment charging the removal of “one bale of cotton of the value of sixty dollars, upon which cotton one L. D. Horn had a landlord’s lien,” and the uncontradicted evidence that Horn’s lien, if any, was only on an undivided interest therein. 66 Ark. 120; 55 Ark. 244; 70 Id. 144; 21 Tex. App. 520; 2 S. W. 859.
    4. The admission in evidence of the purported copy of Murry’s letter to Strong & Cartwright, was a clear violation of the best evidence rule. 66 Mo. App. 663; 67 Mo. 446; 61 S. W. 937; 11 Ark. 504; 54 Am. Dec. 212; 12 Ark. 692.

      5. Proof of value was an essential ingredient of the offense charged. 105 Ark. 172. And the testimony of the witness, Harrell, on the market value of the cotton shipped to Memphis, as to his opinion of the market value without fixing time, place, grade or condition of cotton, and without proof of the grade or condition of the cotton shipped, was clearly incompetent.
    6. The court’s instruction on the burden of proof and the presumption of innocence was misleading, confusing and contradictory. Underhill on Criminal Evidence, 2nd Ed., § 22; Id. § 23, p. 42; 9 Enc. of Ev. 924. Neither conviction nor acquittal should be emphasized in an instruction. 139 Pac. 1156. See also 156 U. S. 432; 16 Corpus Juris, 984; 46 L. R. A. (N. S.) 1149,1156; 71 Ark. 398; 83 Id. 81, 84; 69 Id. 537.

      J. 8. Utley, Attorney G-eneral, Elbert Godivin and W. T. Hammock, Assistants, for appellee.
    1. The venue was in Craig’head County. C. & M. Dig., § 2875.
    2. Where the accused fails to demur to an indictment, and elects to wait and challenge the sufficiency of the indictment by motion in arrest of judgment after the verdict is returned, the motion will be overruled, if the language of the indictment is such that it can be gathered therefrom that the essentials of the crime are charged, either directly or by reasonable inference. 131 Ark. 542; 110 Ark. 549; 2 Stand. Enc. of Procedure, 1015; 16 Fed 376; 168 Id. 682.
    3. The variance is not fatal.- The proof shows that neither Horn nor his agent knew that appellant mixed the cotton with cotton grown elsewhere, until after it had been shipped. Appellee mixed it with other cotton at his own peril. 5 R. C. L. § 4, p. 1052; 44 Ark. 447.
    4. The admission of the copy of appellant’s letter in evidence, if erroneous, was harmless, and therefore not reversible. Ill Ark. 272; 112 Id. 507; Id. 269.
    5. Harrell’s testimony as to the value of the cotton was admissible for the purpose of showing that the value of the cotton was more than $10, the purpose for which it was introduced. 105 Ark. 172.
   Wood, J.

The appellant was convicted on an indictment which reads as follows:

“The grand jury of Jonesboro District, Craighead County, in the name and by the authority of the State of Arkansas, accuse H. D. Murry of the crime of removing mortgaged property committed as follows, to-wit: The said * * * in the county, district and State aforesaid, on the 24th day of January, A. D. 1921, did unlawfully, knowingly and feloniously remove from the limits of the State of Arkansas one bale of cotton of the value of sixty dollars, upon which cotton one L. D. Horn had a landlord’s lien to secure the payment of one hundred dollars rent due him by the said H. D. Murry as his tenant, with the felonious intent to defeat the holder of said lien in the collection of the said debt secured by such lien; against the peace and dignity of the State of Arkansas.”

The appellant moved to arrest the judgment on the ground that the indictment did not charge.the appellant with a public offense.

The statute under which the appellant was indicted reads in part as follows: “It shall be unlawful for any person to sell, barter, exchange or otherwise dispose of, or to remove beyond the limits of this State, or of the county in which a landlord’s or laborer’s lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, any property of any kind, character or description, upon which a lien of any kind enumerated above exists; provided, such sale or barter, exchange, removal or disposal of such property be made with the intent to defeat the holder of such lien in the collection of the debt secured by such mortgage, laborer’s or landlord’s lien.” Crawford '& Moses’ Digest, § 2552.

In Davis v. State, 131 Ark. 542, we said: “Certainty in an indictment is required when charging an offense, and a demurrer thereto should be sustained unless the language of the indictment charges an offense with reasonable certainty, so as to put the accused on notice of the- nature of the charge he is called upon to meet; but when the sufficiency of the indictment is called in question by motion in arrest of judgment, the rule is different, and if it can be gathered from the language of the indictment that the essentials of the crime are charged either directly or by reasonable inference, then the motion should be overruled.” See also Loudermilk v. State, 110 Ark. 549.

It will be observed that the grand jury accused H. D. Murry “of the crime of removing mortgaged property, committed as follows, to wit, etc. ’ ’ The indictment then proceeds to describe the manner in which the offense is alleged to have been committed, and this description shows that the offense consisted in feloniously removing from the limits of the State of Arkansas a bale of cotton, of the value of $60, upon which one L. D. Horn had a landlord’s lien to secure the payment of $100 rent due him by the said H. D. Murry as his tenant, etc.” The word “said” in legal terminology, means “aforementioned, already spoken of,” and is used in the indictment to designate the appellant. After the appellant’s name is mentioned the word “said” in the clause following relates back to the appellant’s name; and although in the first or accusing clause of the indictment the offense is designated as “removing mortgaged property” yet the specific acts alleged to constitute the offense are set forth, and this description shows the alleged crime to be the removal of one bale of cotton out of the State of the value of $60 upon which L. D. Horn had a landlord’s lien, etc. So, although the offense was erroneously designated as “removing mortgaged property” it was in fact the removal of property apon which there was a landlord’s lien.

In Kelly v. State, 102 Ark. 651-55, we said: “A discrepancy or mistake in the naming of an offense in an indictment will not vitiate the. same if the particular facts necessary to constitute the offense are specifically and accurately described. ‘The name of the crime is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment.’ ” See also Spear v. State, 130 Ark. 457-462.

Sec. 2552 Crawford & Moses’ Digest provides: “It shall be unlawful for any person * * * to remove beyond the limits of this State, or of the county in which a landlord’s or laborer’s lien exists * * * any property of- any kind, * # * upon which a lien of the kind enumerated above exists; provided such * * * removal or disposal of such property be made with the intent to defeat the holder of such lien in the collection of the debt secured by such * * * landlord’s lien.”

Sections 2554 and 2555 prescribe the penalty for a violation of the above statute.

The trial court gave instruction No. 2 on its- own motion, which, after setting forth the provisions of the above .statute, reads in part as follows: “If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, H. D. Murry, in the Jonesboro District of Craighead County on the 24th day of January, 1921, or at any time within one year next before the 19th day of April, 1921, removed or caused to be removed from the State of Arkansas, without the legal authority or consent of the prosecuting witness, L. D. Horn, one bale of cotton of the value of sixty dollars, * * * from the city of Jonesboro, Arkansas, to the city of Memphis in the State of Tennessee, and that at such time the said L. D. Horn had a valid and subsisting landlord’s lien thereon for rent due him in the sum of one hundred dollars, * * * with the purpose and intent of defeating the said L. D. Horn in the collection of his said lien and thereby defraud him in the collection of any rent that may have been due him thereon, * * * then it will be your duty to convict him,” etc.

Among other specific objections made to the instruction is the following: “The word ‘legal’ in the expression ‘without the legal authority or consent of the prosecuting witness, L. D. Horn. ’ The use of this word is apt to mislead the jury, causing them to believe that authority or consent must he given in some particular form. The instruction should read ‘without authority or consent or subsequent ratification of the prosecuting witness, L. 13. Horn.’ The court overruled appellant’s objection to the instruction.

Among others, the appellant presented the following prayer for instruction: “If the prosecuting witness, Horn, either in person, or by his duly authorized agent, consented to the removal of the bale of cotton in Controversy, you should then acquit the defendant.” The court refused to grant this prayer.

The testimony on behalf of the State tended to prove that one L. D. Horn rented to the appellant for the year 1920 sixty acres of land in Craighead County, Arkansas, for which the appellant agreed to pay $200. Appellant gave Horn his check for $100, and executed his note for the balance. The appellant moved off the place at the close of the year without paying the note. The note was placed by Horn in the hands of one Harrell for collection. Harrell went to the place in September' before the note was due and informed the appellant that he held the same for collection. Appellant said that he would pay the said note when it was due, and Harrell did not at that time doubt but that he would pay it. Harrell then told appellant not to move the crops out. Horn had not at that time directed Harrell to forbid Murry marketing his crops. Harrell went to the place again in December after the note was due. Appellant had then moved off the place. He stated to Harrell that he had shipped three bales of cotton to Memphis and would pay the note when he got returns on that cotton. He made no 'statement about where the cotton came from. He stated that he was to pay the rent out of that cotton, and witness told him that was all right if lie paid the rent out of it. Harrell did not object to his shipping that cotton to Memphis. “The’ old man (appellant) talked like he was going to pay it, and that was all right then.” On January 31st, Harrell went to see appellant and appellant told him that a certain bale of cotton, part of which was grown on Horn’s place, had been shipped to Memphis, and he would pay the proceeds over to Harrell.' The appellant did not pay, and criminal prosecution was instituted against him.

Witness Horn, among other things, testified that he did not give appellant authority to ship the cotton and did not pay anything to appellant to dispose of the cotton or ship it. “The day we went out there it seems to me that Mr. Harrell told him that it was all right so he paid that rent.”

The appellant testified, and among other things denied that Harrell told him not to move the crops out. He stated that he wrote Harrell when he moved, and Harrell and Horn came to his house to speak to witness about the rent. Witness detailed the conversation between himself and Horn as follows: “I have 973 pounds of cotton that came from your place, Dr. Horn, and there was one or two hundred, pounds in the patch when I left there, and I asked Mr. Jim Broadway to please not let his cattle in there to eat it up — I would like to get enough to make out a bale — if not, I have ■a few remnants that I intend to mix in with the 973 pounds and I intend to finish the bale out and sell it and pay you. He never said a word, he just said, ‘All right.’ ”

The gravamen of the offense of which appellant was convicted is the removal of property beyond the limits of the State with the intent to defeat the lien holder in the collection of his debt; and, on the issue as to the intent of the appellant, testimony tending to prove that the landlord had authorized the removal, or that he consented to it, was competent. Lawhorn v. State, 108 Ark. 474; Osborne v. State, 109 Ark. 440. Such authority or consent on the part of the landlord could be shown by any competent' testimony tending to prove it. Such authority or consent, to be legal, would not have to be in writing or evidenced in any other special manner.

In view of the above testimony we are convinced that the court erred in not striking out the word ‘legal’ before the words ‘authority or consent’ in its instruction. The word ‘legal’ had ho place in the instruction, because, if the landlord authorized the removal, or consented to it at all, it was legal, and the use of that word was surplusage, argumentative, and calculated to lead the jury into a realm of speculation as to what was or was not legal authority. If the court’s attention had not been specifically drawn to this word,' the error would not have been prejudicial, because the objection was to the phraseology, and was one to which the attention of the court should have been specifically called. When this was done, however, fairness to the appellant required that the objectionable word be eliminated. The error in refusing* to do so is made more manifest when taken in connection with the refusal to grant appellant’s prayer for instruction No. 5. This prayer was correct, and a succinct declaration of the law applicable to the testimony adduced. It occurs to us that the refusal to give it shows that the trial court was laving undue emphasis on the word ‘legal’ used in its instruction. At least the jury might have been so impressed.

Counsel for appellant urge that many other errors were committed, but we have found no other reversible error in the record and deem it unnecessary to discuss other assignments. For the error indicated, the judgment is reversed, and the cause remanded for a new trial.


author: Hart, J.

text:
    State v. Masner.
    Opinion delivered November 14, 1921.
    1. Criminal law — motion in arrest of judgment — ground.-—The only ground upon which a judgment in a criminal case will be arrested is that the facts stated in the indictment do not constitute a public offense within the court’s jurisdiction.

      2. Criminal law — motion in arrest of judgment- — sufficiency of indictment. — Upon a motion in arrest, the words used in an indictment are to be taken in their broadest sense, and the indictment is sufficient if it contains such description of the offense charged as will enable the accused to make his defense and to plead the judgment in bar of any further prosecution for the same crime.
    3. Weapons — sufficiency of indictment for carrying. — An indictment which accused defendant of the crime of “wearing weapons,” in that he “unlawfully did wear and carry certain metal knucks,” held sufficient on motion in arrest.
    Appeal from Sharp Circuit Gourt, Southern District; D. II. Coleman, Judge on Exchange;
    reversed.

      J. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellant.
    Appellee’s motion in arrest did not conform to § 3224, C. & M. Digest, in that it failed to allege that the facts stated in. the indictment did not constitute a public offense within the jurisdiction of the court. The sufficiency of the indictment should have been challenged by demurrer before the trial, and the motion in arrest of judgment after trial comes too late. Stand. Enc. of Proc. vol. 2, p. 1015.
    An averment necessary for the support of the pleadings, though imperfectly stated, which might have been bad on demurrer, is cured, by the verdict, if such verdict could not have been found without finding the imperfect averment to have been proved in a sense adverse to the accused. 16 Fed. Eep. 376; 168 Fed. 682.
    The indictment charged appellee with “unlawfully wearing and carrying certain metal knucks”, and this was sufficient to charge that he carried them as a weapon, as it put him on notice of the nature of the charge he was called upon to meet. 131 Ark. 542. The language of an indictment will be given the construction which results in holding it sufficient, if it is not manifest that another construction and interpretation is required. 110 Ark. 549.

      Fred M. Pickens, for appellee.

      Judgment may be arrested by. the court without any motion, upon his observing that the indictment does not state a public offense. C. & M. Dig., § 3224. No public offense was stated here. _ This is the only ground upon which a motion in arrest can be sustained. Ill Ark. 180. Failure to demur does not waive such defect, because it is the duty of the court to arrest judgment on this ground, any time during the term at which judgment is rendered. C. & M. Dig.,, 3223, 3224; 21 Ark. 212.
    It is not a violation of law to carry metal knucks, but it is a violation to carry them as a iveapon. Knucks and a pistol come under the same sections, and it has been held that to carry a pistol for any other purpose than a weapon is not a violation. 68 Ark. 447.
    The word “unlawfully” means contrary to law, (Bouv. Law Die. vol. 3, p. 3376) and as used in the indictment cannot be contended to have the same meaning as the phrase “as a weapon.”
   Hart, J.

T. O. Masner was convicted of the crime of carrying metal knucks as a weapon, and his punishment was fixed by the jury at a fine of $50. Judgment was rendered accordingly. The defendant then filed a motion in arrest of judgment, which, was sustained by the court, and the judgment arrested. The State of Arkansas has duly prosecuted an appeal to this court.

The body of the indictment is as follows:

“The grand jury of the Southern District of the Sharp Circuit Court, in the name and by the authority of the State of Arkansas, accuse T. O. Masner of the crime of wearing weapons, committed as follows, to-wit: The said T. O. Masner in the county, district and State aforesaid, on the 15th day of October, A. D. 1920, unlawfully did wear and carry certain metal knucks, against the peace and dignity of the State of Arkansas.”

Counsel for the defendant contends that the facts stated in the indictment do not constitute a public of-fen.se within the jurisdiction of the court, and that the court properly arrested the judgment.

The indictment was found under § 2804 of Crawford & Moses ’ Digest, which reads as follows:

“Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or bowie knife, or sword or spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, shall be guilty of a misdemeanor,” etc.

Counsel for the defendant claims that, inasmuch as the crime prohibited by the statute is the carrying of metal knucks as a weapon, no crime is charged by alleging that the defendant unlawfully carried metal knucks. In other words, counsel contends that the act charged is carrying- metal knucks, which in itself is not unlawful, and that an allegation that it is unlawfully done does not render it indictable.

We do not agree with counsel in his contention. The only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Farrell v. State, 111 Ark. 180. Hence the words used in the indictment to describe the act charged are to be taken in their broadest sense. The indictment is sufficient if it contains such description of the offense charged as will enable the accused to make his defense and to plead the judgment in bar of any further prosecution for the same crime. Rosen v. United States, 161 U. S. 29.

The indictment in this case meets these requirements. The first part of it accuses T. O. Masner of the crime of “wearing weapons.” It then charges that said Masner “unlawfully did wear and carry certain metal knucks.” These last words, when considered in connection with the accusing part of the indictment, imply that the defendant did wear or carry metal knucks contrary to law or in violation of law. In short, the indictment accuses the defendant of wearing weapons by unlawfully wearing and carrying metal knucks.

It is true the essence of the offense charged is carrying as a weapon metal knucks. But we are of the opinion that accusing the defendant of wearing weapons by unlawfully carrying metal knucks, put him. on notice of the charge he was required to meet and enabled him to make his defense thereto and to plead the judgment in bar of any further prosecution for the same offense.

The indictment accuses the defendant of the crime of wearing weapons, and then charges that he committed it by unlawfully carrying the metal knucks. This sufficiently shows that the metal knucks were carried as a weapon, as otherwise it could not be said to have been done unlawfully. In this way the word, “unlawfully” connects the words, “did wear and carry certain metal knucks,” with the preceding words, “accused T. O. Masner of the crime of wearing weapons,” and thus becomes a part of the description of the offense.

It follows that the court erred in sustaining the motion in arrest of judgment, and for that error the judgment will be reversed, and the cause- will be remanded with directions to the circuit court to enter judgment upon the verdict.


text:
    Harbottle-Bailey Coal Company v. Bolton-Hale Coal Company.
    Opinion delivered November 14, 1921.
    Railroads — use of private spur. — Where a coal company, under agreement with a railway company, constructed a private spur, which is subsequently assigned to appellants, with the railroad company’s consent, appellants had the exclusive right to use the spur.
    Appeal from Franklin Chancery Court, Ozark District; J. V. Bcmrland, Chancellor;
    reversed.
    statement op pacts.
    The Bolton-IIale Coal Company, a partnership, brought this suit in equity against the Harbottle-Bailey Coal Company, a domestic corporation, to enjoin it from interfering with the plaintiff’s right to load coal on a certain spur track connected with the tracks of the Missouri Pacific Railway Company. The railway company was also made a defendant to the suit.
    Both the plaintiffs and the defendants are engaged in mining coal near the spur track in question on lands which they have leased from the Douglass Coal Company. The lease of the Douglass Coal Company to the Har'hottle-Bailey Coal Company was executed on the 6th day of November, 1918, and continues for the period of seven years. Among the property embraced in the lease is described, “the railroad mine tracking”. On the 23rd day of October, 1914, the Douglass Coal Company had made an agreement with the St. Louis, Iron Mountain & Southern Railway Company for the construction of said spur track for the purpose of loading the coal which it mined.
    The agreement provides that it shall be binding upon ■the successors and legal assigns of the Railway Company but shall be strictly personal to the “industry”, and that neither this agreement nor any interest herein, nor any right hereunder, shall be assigned or transferred without the consent of the chief operating officer of the railway company.
    The object of the agreement was to provide a spur track which would connect the mine of the Douglass Coal Company with the tracks of the railway company. The word “industry”, as used in the agreement, means the Douglass Coal Company. The track is 92 feet in length on the property of the “industry.” On November 6, 1919, the Douglass Coal Company transferred all their rights in the agreement with the St. Louis, Iron Mountain & Southern Railway Company to the Harbottle-Bailey Coal Company. The latter company has operated its mine and loaded the coal therefrom on the cars on the spur track under the terms of the agreement made between the railway company and the Douglass Coal Company. The plaintiffs have obtained leases from the Douglass Coal Company of a later date than that obtained by the defendant.

      According to the evidence adduced by the plaintiffs there was room enough for them and the defendant both to load cars from their mines on the spur track in question.
    According to the evidence adduced by the defendant, it permitted the plaintiffs and their grantors to load cars on the spur track in question under a verbal agreement to that effect. It was the understanding between the parties that this agreement was to run at the will of the defendant. The capacity of the defendant’s mine was increased until there was not room enough on the spur track in question to load the output of the plaintiff’s mine and that of the defendant, and the defendant forbade the plaintiffs to load any more coal on cars on the' spur track. Hence this lawsuit.
    The chancellor found the issues in favor of the plaintiffs, and entered a decree whereby the plaintiffs were to use the spur track in question for two days in the week and the defendant the remainder of the week. To reverse that decree, the defendant has duly prosecuted this appeal. ■ . .

      Willard Pendergrass, 'G. G. Garter and Dave, Partain, for appellant.
    We are unable to find upon what theory the chancellor based his decree. It could not be sustained on the ground that appellee had an easement over appellant’s property and the spur. 89 Ark. 309; 88 Ark. 148; 64 Ark: 339. Nor upon the ground that appellee had a license to use the property of appellant. 19 Ark. 23; 64 Ark. 339. There is no basis of law or fact (as the use granted to appellee by appellant was only a permissive one) upon which to sustain the decree.

      J. D. Benson, for appellee.
    The demurrer was properly overruled, as the complaint stated a cause of action. 72 Ark. 29;' 102 Ark. 287.
    No conveyance of the spur could have been made to the appellant by Douglas, without the consent in writing of the railroad company, and this was never given.

      The decree, based upon the findings of fact by the chancellor, unless clearly against the preponderance of the evidence, should be affirmed. 136 Ark. 195. Here the decree is supported by the evidence.
   Hart, J.

(after stating the facts). It'appears from the record that the Douglass Coal Company transferred their mining lease, and sold to the defendant, HarbottleBailey Coal Company, their mine fixtures on the'6th day of November, 1918. At that time the Douglass Coal Company was operating its mines under an agreement with the St. Louis, Iron Mountain & Southern Railway Company for the construction of a spur track upon which to load coal from their mine. The spur track was constructed by the Douglass Coal Company under an agreement with the Railway Company and extended out on the land of the Douglass Coal Company 92 feet. On the 6th of November, 1918, the Douglass Coal Company, a partnership, transferred their interest in their agreement with the railway company to the defendant.

It is claimed by counsel for the plaintiffs that this transfer is void because, under the terms of the agreement between the railway company and the Douglass Coal Company, the latter could not assign their interest in the contract without the written consent of the railway company. This provision, however, was evidently inserted for the benefit of the railway company and might be waived by it. The railway company permitted the defendant to use the spur track under the terms of the original agreement between the railway company and the Douglass Coal Company. It thereby waived the provision of the contract that no assignment thereof should be made without the written consent of the railway company. Therefore, the defendant succeeded to the rights of the.Douglass Coal Company in the contract with the railway company and had the right to the exclusive use .of the spur track in question. The plaintiffs were permitted to load coal from their mine on- cars placed on this spur track under a verbal permission to do so. This was revocable at tbe will of tbe party granting it. It does not appear that the Douglass Coal Company or tbe defendant ever entered into an agreement Avith tlie plaintiffs or their grantors to use the spur track to load their coal on cars for any definite length of time.

According to the evidence for the defendant, the plaintiffs were permitted to use the track so long as it did not interfere with the business of the defendant. When the business of the defendant increased to such an extent that it was necessary for it to use the spur track at all times to load' its own coal, it refused to alloAv the plaintiffs to use it any longer to load their coal. This the defendant had a right to do, and the plaintiffs had no right to- use tlie spur track after their license to use it was revoked by the defendant:

As we have already seen, the contract between the railway company and the Douglass Coal Company for the construction and use of the spur track was transferred by the Douglass Coal Company to the defendant, and the latter continued to operate its coal mine and use the spur track under the provisions of the agreement. The railway company, having consented to the transfer, is in no attitude to object that the transfer was not in writing, and it does not do so.

The plaintiffs have no right to object; for they are not parties to the contract, 'and, no matter how great their necessities may be, they have no right to use the spur track to load their coal unless by the consent of the defendant. The spur track is a private one, and not an industrial track open to the use of the public.

Therefore,- the court erred in making any finding in favor of the plaintiffs, and the decree will be reversed with directions to the chancery -court to dismiss the bill of the plaintiffs for want of equity.


author: Hart, J.,

text:
    E. O. Barnett Bros. v. Alexander.
    Opinion delivered November 14, 1921.
    Principal and surety — notice to creditors to sue principal. — Under Crawford & Moses’ Dig., § § 8287-8, providing that a surety on a bond, bill or note for the payment of money may, “at any time after action hath accrued thereon,” require the person having ■ right of action thereon to sue the principal within 30 days, and that if such suit be not brought the surety shall be exonerated, a surety on a note who has been sued thereon may give notice and require the holder to sue the principal.
    Appeal from Hot Springs Circuit Court; W. H. Evans, Judge;
    affirmed.
    statement oe eacts.
    E. O. Barnett Bros., a partnership composed of Oscar Barnett and Horatio Barnett, sued W. D. Alexander, a justice of the peace, to recover $100 alleged to be due on a promissory note executed by the defendant and others to the plaintiffs.
    The defendant recovered judgment in the justice’s court, and the plaintiffs duly appealed to the circuit court.
    The defendant then gave notice in writing to the plaintiffs requiring them to sue certain named persons as being the principal debtors who signed the note, and stated in the notice that the defendant and another person signed the note as accommodating parties. The notice was duly served on the plaintiffs, and the plaintiffs did not bring suit against the parties named as principal debtors in the notice, and the case came on for trial in the circuit court more than thirty days after the notice had been given and served on the plaintiffs.
    Alexander defended the suit in the circuit court .on the ground that he was exonerated as surety on the note because he had given notice in writing to the creditor to sue the principal debtors, and proved the facts above set forth in support of his defense. He also testified that he had signed the note sued on as surety.

      The circuit court found the issues in favor of the defendant, and judgment was rendered accordingly. The plaintiffs have appealed.

      Oscar Barnett, for appellants.
    Appellee admits that he was an accommodating endorser. This is a several liability and plaintiff had the option to sue him alone. 193 S. W. 505; Kirby’s Digest, §§ 522, 6009, 6010, 6229-30; Crawford & Moses’ Digest, §§ 1099, 7795; 216 S. W. 1039. Moreover, the notice to sue the other parties oh the note was not given until long after the suit was brought, and after all the other makers and sureties had left the State except one, against whom a judgment, when obtained, could not be enforced. See also, 153 S. W. 261; 62 Ark. 391.

      D. D. Glover, for appellee.
    1. This court has repeatedly held that an indorser for accommodation can avail himself of the plea of nsury the same as principal.
    2. The notice to sue the other parties on the note was given as provided by the statute, C. & M. Digest 8287, 8228. This was a complete defense, when the plaintiff failed to sue the principals on the note within the time limited by the statute. 141 Ark. 64.
   Hart, J.,

(after stating the facts). The defendant seeks to uphold the judgment under 8287, 8288, of Crawford & Moses’ Digest. Sec. 8287 is as follows:

“Any person bound as surety for another in any bond, bill or note, for the payment of money or the delivery of property, may, at any time after action hath accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and other party liable.”

Sec. 8288 provides that if such suit be not commenced within thirty days after the service of such notice and proceeded on with due diligence in the ordinary coirrse of law to judgment and execution, such surety shall be exonerated from liability to the persons notified.

The plaintiffs were the payees in the note, and notice to sue the principal debtors was given them in the manner and form provided in the statutes. The plaintiffs failed to sue the' principal debtors within thirty days after the service of the notice. It is contended by them, however, that W. D. Alexander, the surety, is not exonerated because he did not give notice under the statute until after he had been sued on the note. This did not make any difference.

A surety’s right to give notice to the creditor to sue and to secure his release, if suit is brought, is a right given by the statute, and not at common law. Sims v. Everett, 113 Ark. 198; Green v. McCullar, 128 Ark; 221, and Shores-Mueller Co. v. Palmer, 141 Ark. 64.

Hence we must look to the language of the statute for the exoneration. The statute provides that the notice may be given at any time after a cause of action has accrued on the note signed by the surety. If the framers of the statute had intended that no exoneration could be had under it after suit brought, they would have so provided by apt words. The language used in the statute is broad enough to cover cases where the notice was given after suit brought, and,‘there being nothing in the statute to indicate that the Legislature intended to restrict its operation to cases where suit had not been brought, the courts can impose no such limitation.

Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Edwards v. Wiley.
    Opinion delivered November 14, 1921.
    1. Usury — sale op land. — In a sale of land, the exaction of a price, however exorbitant, cannot import into the transaction the characteristics of usury, as the element of lending and borrowing money is absent.
    2. Signature — attestation.—Where there is no question as to a contract for the sale of land having been executed, and possession was taken under it for many years, it is immaterial that the proof fails to show that the purchaser’s signature, which was by mark, was duly attested.

      3. Fraud — exorbitant price for land. — The mere fact that a purchaser of land, by reason of lack of familiarity with land values, was induced to pay an excessive price for it, does not establish fraud.
    Appeal from Sebastian Chancery Court, Ft. Smith District; J. V. Bourland, Chancellor;
    reversed.

      George F. Youmcms, for appellant.
    1. The allegations of the complaint are not sufficient to charge usury. Into .a sale of land or chattels usury cannot enter, as the element of lending- or borrowing is. absent. 55 Ark. 268; Tyler, Usury, 300; 2 Doug. 736; 224 S. W. (Ark.) 978.
    2. The sole cause of action set out in the complaint was usury. It was, therefore, error to grant permission to amend the complaint, after testimony should be introduced, so as to allege that the contract was obtained through, .subterfuge, thereby giving permission to introduce a new cause of action. 75 Ark. 465; 87 S. W. 1179; 84 N. Y. 420; 59 Ark. 165; 26 S. W. 824; 21 Am. St. 414; 55 N. J. Eq. 37; 36 Atl. 475; 78 Ala. 284; 103 Id. 217; 123 Mo. 96; 24 Ark. 459; 34 Id. 63; 35 Id. 555; 77 Id. 355; 91 S. W. 773.
    3. There was no attempt to prove usury at the trial, nor any finding by the court that any fraud or subterfuge was practiced upon Wiley, or any advantage taken of his alleged ignorance by the appellant in obtaining -the contract. There was no evidence tending to support such an allegation. That Wiley was illiterate may be conceded, but the finding that he was unable to understand the contract is supported by no testimony whatever. His competency and capacity to contract will be presumed. 27 Ark. 166. In the absence of mental incapacity on the part of Wiley, and advantage taken thereof, proof of the fixing of a price for the property greater than its true value would not sustain the judgment in this case. 88 Ark. 615. 113 S. W. 1015. But that allegation was not proved.
    . 4. The method of establishing a signature provided by the statute, C. & M. Dig. § 9732, is not exclusive. The mark of one who cannot write, though unattested,-may be proved to be his signature by other testimony. 49 Ark. 18; 51 Id. 48. Wiley’s long acquiescence in the contract and recognition of its obligations renders proof of its execution unnecessary.

      Hill & Fitslmgh, for appellees.
    1. The transaction was clearly usurious. It was not necessary, under the law, that Wiley should have intentionally entered into a usurious contract. 135 Ark. 575. If property is sold at an exorbitant price, so much of the consideration as was extortionate is added to the interest, and when it makes more than 10 per cent, it renders the contract usurious. 46 Ark. 50; 146 Ark. 55; 36 Id. 248.
    ' 2. Plaintiffs in stating that the allegations of the complaint were probably not broad enough to cover- the evidence which would thereafter be introduced, pursued only the fairer course, and thereby gave notice of a broadening of the issues, of which defendant had no right to complain. They had the right to amend to conform to the proof. 94 Ark. 365; 33 Id. 811; 53 Id. 263; 58 Id. 504; 59 Id. 317; 7 Enc. PI. & Pr. 483; 31 Cyc. 401. Such amendments are left largely to the discretion of the trial court, ■and in the absence of abuse and material prejudice, that, discretion will not be disturbed. 25 Ark. 7; 26 Id. 405 ; 54 Id. 444; 58 Id. 7; 103 Id. 79; 124 Id. 229. There is no claim of surprise. 130 Ark. 83. And the allegations of fraud in the amendment to the complaint are definite and certain. The decree was predicated on the allegation that the minds of the parties never met on the contract, and the proof sustains it.
    3. Signatures by mark must be proved by the subscribing witnesses. O. & M. Digest, § 9732; 38 Ark. 278. While this method of proof is not exclusive, as held by this court, yet it has not held that an illiterate’s name can be signed, and his mark made for him, by the other party to the contract. 76 Ala. 247; 43 Mich. 397; 5 N. W. 427; 6 N. Y. 303.
   Smith, J.

Appellees instituted this suit to cancel a contract for the sale of a certain house and lot in the city of Ft. Smith on the ground of usury. The complaint 'alleged that on March 20, 1910, appellant, John B. Edwards, was the owner of lot 5, in block 65, in the city of Ft. Smith, and that its then value was $1,500. That, in order to obtain an exorbitant rate of interest, Edwards fixed the price of the lot at $2,250, and contracted to sell it to William Wiley at that price, payments to be made at the ■ rate of $20 per month, payable quarterly, with interest at 8 per cent., and that this price was fixed as a subterfuge whereby usurious interest might be collected. This branch of the case may be disposed of by saying that all the testimony shows that the transaction between Edwards and Wiley was one for the sale of the lot. Neither of the parties intended or contemplated a loan of money, and it was not such in fact. This was a sale, and was so intended, and the exaction of a price, however exorbitant, cannot import into the transaction the characteristics of usury, as the element of lending and borrowing money is absent. Such was the express holding of Ellenbogen v. Griffey, 55 Ark. 268, and reaffirmed in the case of Blake Bros. v. Askew & Brummett, 112 Ark. 514, and the more recent case of Smith v. Kaufman, 145 Ark. 548.

Appellees amended the complaint to conform to the proof by alleging fraud in the procurement of the contract, in this, that Wiley was an illiterate negro, and unfamiliar with real estate values and business affairs, and that Edwards took advantage of his ignorance and imposed upon him by naming an unreasonable and excessive price for the property; that Wiley did not know that he was being thus imposed upon, and that therefore the minds of the parties never met upon the terms of the sale; and that, having been thus defrauded, Wiley should be held responsible only for the fair market value of the property, which did not exceed $1,500 for a credit sale; and there was a prayer that appellees be charged with that amount and a settlement be had on that basis.

Wiley died intestate in April, 1920, and left as his only heirs, two sons, one of whom conveyed his half interest to his half-sister, Rebecca Ellis, who, with the other son, are the plaintiffs in this suit.

Attached to the original complaint as an exhibit thereto is a copy of the contract between Edwards and William Wiley» which is signed by Edwards and by Wiley by mark without attestation of that signature.

Wiley appears to have had no fixed time for making his payments, nor were they of uniform amounts, but numerous payments were made extending up to the time of Wiley’s death and aggregating $2,358.70.

The testimony is in sharpest conflict as to the value of the property, and the court found the actual value of the property at the time of the sale to have been $1,700 upon the basis of a sale on time. Without setting out or reviewing here this testimony, we announce our conclusion to be that it does not appear that this finding is clearly against the preponderance of the evidence.

It is contended that the contract made an exhibit to the original complaint, which is a typewritten instrument, is not in fact the contract made by the parties at the time of the sale, and that the original and genuine contract between the parties was written out with pen and ink.

The court made no specific finding on this issue, but the finding made, ‘£ that no legal contract of the purchase was executed, and William Wiley was illiterate and unable to read the contract purported to have been signed in his behalf by the defendant or understand the purport thereof,” indicates that the instrument here referred to appears to be the writing made an exhibit to the original complaint and which was in fact there alleged to be the contract made between the parties.

The only testimony tending to show that the contract between Edwards and Wiley was written with pen and ink, and not with the typewriter, is that of a colored woman referred to by the witnesses as Mrs. Price. Her testimony was to the effect that the contract was executed on the dining table at her home, that there was no typewriter there, and that she cleared the table and got pen and ink and went out of the room, leaving the parties to their trade. This testimony would not support a finding that Edwards had substituted a typewritten contract for one written in ink -with a pen, and certainly not when it is remembered that the contract, of which a copy was attached to the complaint, was found in Wiley’s trunk after his death, where he had probably kept it during all the years preceding his death. Moreover, Edwards testified that he sold to Mrs. Price a lot adjoining the one in litigation, and when he did so he told her that he would take $2,250 for the unsold lot, and she thereupon opened the negotiations between Edwards and Wiley which terminated in the sale. Mrs. Price did not deny this statement, and was asked nothing by appellees in regard to her reputed conversations with Edwards.

Appellees discuss the effect of the failure of Edwards to have the signature of Wiley properly attested; but we think that omission is not of controlling importance. There was a contract and possession was taken under it. This possession was long-continued, and many payments of purchase money were made under it. Appellees predicate their original suit, as well as their amended cause of action, upon the allegation that there was a contract of sale, and that possession was taken pursuant to -thisf contract, and Edwards, the party sought to be charged with the contract to convey, admits that he signed it. Jones v. School District, 137 Ark. 414. It becomes unimportant, therefore, to determine the effect of the insufficient attestation of Wiley’s signature.

There is no proof here of fraud except that Wiley was unfamiliar with land values, and that advantage was taken of that fact to induce him to pay an excessive price for the home which furnished him shelter until the day of his death. No attempt was made to show that any false or fraudulent representations in regard to values were made. Upon the contrary, Wiley appears to have been satisfied with his bargain, and to have made a faithful effort to comply with its terms, and, while he appears from the beginning to have been tardy with his payments, constant indulgence, extending over a period of more than ten years, was shown him, although the contract contained the provision that failure to make payments as provided should have the effect to cancel and annul the contract and to forfeit all payments previously made.

We think the finding of the court below is clearly against the preponderance of the evidence.

The court below, having fixed the sale price of the property at $1,700, adjudged the balance due to be $102.36, which sum was declared a lien on the property, in satisfaction of which a sale was ordered if payment was not made within ninety days. This decree will be reversed, and the court ordered to compute the balance due upon the basis of the contract price of $2,250.

Appellant argues for reversal of the decree the failure of the court to sustain his demurrer to the original complaint and the action of the court in permitting the amendment of the complaint to be made; 'but, in view of the conclusion we have reached and have stated herein, it becomes unimportant to decide those questions.


text:
    Logan v. State.
    Opinion delivered November 14, 1921.
    1. Continuance — time of filing motion. — A motion for continuance which was not made or filed until after the trial had been concluded and the verdict returned, was out of time.
    2. Criminal law — admissibility of confession. — Confessions freely and voluntarily made to officers are not inadmissible because the officers failed to caution defendant as to his right to remain silent and that his statements might be used against him.
    3. Statutes — construction.—Statutes must be construed in the light of the purpose of the General Assembly in enacting them.

      4. Intoxicating ■ liquors — manufacture of mash — construction of statute. — Under Gen. Acts 1921, p. 372, providing* that “no mash, wort or wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquors shall be made or fermented by any person other than a person duly authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages or spirits for other than beverage purposes”, the word “fit” should be interpreted as meaning “intended for,” and not as meaning merely adapted to or capable of being used for such purposes.
    5. Statutes — title of act. — The title of an act, while not controlling, may be considered in ascertaining the legislative purpose.
    6. Statutes — construction.—An act should be so construed that it may be held constitutional, if it is reasonably susceptible of such construction.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      John A. Hibbler, for appellant.
    The verdict was contrary to law and the evidence. A continuance should have been granted. Appellant had no counsel until his present counsel was appointed by the court, and sufficient time was not allowed thereafter to have summons served on necessary witnesses. While a continuance is largely in the discretion of the trial court, this court will not permit an abuse of that discretion. 60 Ark. 521.
    The alleged confession should have been excluded from the jury. Appellant was not warned as to statements made by him. The confession was obtained under circumstances which are disapproved in 114 Ark. 472. A promise of leniency to extort a confession renders it an involuntary one and it is inadmissible. 66 Ark. 53.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.’
    Inasmuch as appellant did not object or except to any of the instructions, he is in no attitude to complain. 70 Ark. 348; 74 Ark. 566; 70 Ark. 490. Appellant, having failed to request a peremptory instruction of not guilty, can not now complain that none was given. 89 Ark. 300; 95 Ark. 593; 101 Ark. 513; 102 Ark. 588.

      The verdict having substantial evidence to support it, will not be disturbed on appeal. 135 Ark. 117; 136 Ark. 385.
    The motion for continuance was not presented until after the trial and did not comply with § 1270, C. & M. Digest, and was properly overruled. Brickey v. State, 148 Ark. 595; 124 Ark. 599; 15 Ark. 252.
    Appellant did not exercise due diligence in preparing his case for trial. Coppersmith v. State, 148 Ark. 597.
    The confession was voluntarily made and was properly given to the jury. 34 Ark. 649. Because appellant was not cautioned by the officers about his statements, does not render the confession incompetent. 114 Ark. 472; 107 Ark. 568.
   Smith, J.

Appellant has been convicted for violating section 1 of Act No. 324 of 1921 (General Acts of 1921, p. 372), which reads as follows:

“Section 1. No mash, wort or wash fit for distillation or for the manufacture of beer; wine, distilled spirits or other alcoholic liquor shall be made or fermented by any person other than a person duly authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages, or spirits for other than beverage purposes.”

For the reversal of the judgment, it is first insisted that the court erred in refusing to continue the case. It appears, however, that a motion for continuance was not made or filed until after the trial had been concluded and the verdict returned, which was, of course, out of. time.

It is next insisted that the court erred in permitting the officer who made the arrest to testify to statements made by appellant at the time which, in effect, amounted to a confession. Appellant testified that the statements made by him to the officers were induced by fear and by the representation then made that it would go lighter with him to confess, and that he was not cautioned as to his right to remain silent, and that his statements might be used against him. According to the officers, the statements of appellant were freely and voluntarily made. The officers admit that they did not caution appellant as to his right to remain silent nor that his statements might be used against him. But the law does not require that this shall be done before such statements are admissible. Greenwood v. State, 107 Ark. 579; Dewein v. State, 114 Ark. 472. The court did give proper cautionary instructions-on the value and competency of confessions, and it must be presumed that, if the jury attached any weight to the alleged confession, 'this was done after the finding-had been made that the 'Confession was free and voluntary, for such was the requirement of the instruction on that subject.

According to the officers, appellant was caught flagrante delicto making whiskey. He ran away at the approach of the officers, and was pursued into a nearby house, and upon the entry of the officers was found lying on a bed feigning to be asleep. He testified that the officers were mistaken in assuming that he was the man seen and pursued by them, as he had been asleep ■all the afternoon. The jury’s verdict has, of course, settled this issue of fact.

This is the first conviction under this act of 1921 which has reached this court. Other sections of that act besides the one copied above make it unlawful to possess a still; to operate a distillery, which is defined; and to manufacture a still worm or still, and providing what shall be accepted as evidence in certain cases, and fixing the punishment for a violation of any of the provisions of 'the act.

This act must, of course, be construed in the light, of the purpose of the General Assembly in enacting it. ■ 2 Lewis’ Sutherland, Statutory Construction (2 Ed.) § 456, p. 864; Endlich on the Interpretation of Statutes, § 27, p. 35; § 29, p. 37; Black on Interpretation of Laws, § 30, p. 56; Empire Carbon Works v. Barber & Co., 132 Árk, 1; Doles v. Hilton, 48 Ark. 305, 309; Gibboney v. Rogers, 32 Ark. 462, 465; State v. Jennings, 27 Ark. 422; Wassell v. Tunnah, 25 Ark. 101; McKenzie v. Murphy, 24 Ark. 155.

Manifestly, it was not the legislative purpose to make it a felony merely to make a mash, wort or wash out of which it would be possible to manufacture beer, wine, distilled spirits, or alcoholic or fermented liquors; for it is a matter of common knowledge that mashes are quite frequently made out. of which such liquors might be made, with no thought or purpose of making such liquors.

We are not controlled by the title of an act in determining its meaning, but we may look to it to ascertain the legislative purpose. The title of this act is, “An Act to Make it an Offense to Set Up or Operate a Distillery in the State of Arkansas, to Provide a Penalty Therefor, and for Other Purposes.”

In the practical enforcement of the prohibition law it has been found difficult in many cases to prove that the mash, wort or wash, which was admittedly intended for an illegal use, had in fact reached, in the process of its manufacture, the alcoholic or intoxicating stage. The recent cases of Graham v. State, ante p. 363, and Foshee v. State, 149 Ark. 559, together with the cases therein cited, are illustrations of this difficulty. In those cases the jury was required to find, before convicting the accused, that 'the mash made for an illegal purpose had in' fact reached the alcoholic or intoxicating stage of its manufacture. This act of the Legislature was obviously designed to relieve the State of the necessity of making such proof, by making it illegal to make a mash, wort or wash fit for the distillation or manufacture of beer, wine, distilled spirits, or other alcoholic liquor.

But the words, “fit for” must, of course, be interpreted and defined as meaning “intended for” the uses there prohibited, and not as meaning merely adapted to or capable of being used for such purposes.

The first definition of the adjective “fit” given in Webster’s New International Dictionary is “1. Adapted to an end, object, or design; suitable by nature or by art; suited by character, qualities, circumstances, education, etc., qualified; competent; worthy.” The words, “suitable, appropriate, proper,” are given as synonyms of the adjective “fit.” And, as distinquished from its synonyms, it is there said that “fit implies adaptation, competence, or (frequently) conformity to a standard.”

It must be confessed that the adjective “fit” and the phrase, “fit for” are susceptible of a wider meaning than we have given them; but the purpose of all statutory construction is to ascertain the legislative will, and, in' doing so, it is proper to consider the evil against which the legislation is directed. Empire Carbon Works v. Barber & Co., 132 Ark. 1, and the other Arkansas cases cited above immediately following this case. And, when thus viewed, the conclusion is reached that the legislative inhibition is against the making of a mash, wort or wash intended as preliminary processes in making distilled, alcoholic and fermented beverages. To give the statute the broad interpretation which would convert into a felony the making of a mash, wort or wash out of which a distilled, alcoholic or fermented liquor might be made, although such was not the purpose for which it had been made, would make the constitutionality of the act very doubtful. It is a settled rule to so construe a legislative act as that it may be held constitutional, if it is reasonably susceptible of such construction. Commissioners, etc., v. Quapaw Club, 145 Ark. 279,283; Booe v. Sims, 139 Ark. 595; Dobbs v. Holland, 140 Ark. 398. We think we have given this act, not only a reasonable construction, but the construction, which comports with the legislative' purpose in its enactment. :

As thus interpreted, the act fits appellant’s case. Indeed, there can be no question about the use intended of the mash found in the still .by. the officers, for whiskey was actually being manufactured. The only real question is appellant’s connection therewith; and that question is settled by the verdict of the jury.

Judgment affirmed.


text:
    Mays v. Barnett.
    Opinion delivered November 14, 1921.
    1. Evidence — ambiguous contract — parol evidence. — While parol testimony cannot be received to vary the terms of a written contract, it may be considered to show the relative situation of the parties in determining the meaning of an ambiguous written contract.
    Evidence — parol evidence to explain ambiguity. — Where a •bill of sale described the property sold as “all electric light poles on streets and alleys of Leslie, Ark., and all wire and electric light fixtures on and between said poles (including all transformers, street light fixtures,” etc.), it was not error to admit parol and extrinsic evidence to show that the sale by the term “light fixtures” included a street light serial and switch board, though they were not on or between the poles.
    Appeal from Searcy Chancery Court; B. F. Mc-Mahan, Chancellor;
    affirmed.

      W. F. Reeves and Carmichael & Broohs, for appellant.
    The parties are bound by the written contract. All previous conversations and understandings merged into and became a part of the written contract and can not be varied by parol testimony. 99 Ark. 218; 93 Ark. 371; 133 Ark. 112; 120 Ark. 368; 135 Ark. 38.
    The finding of the chancellor is not supported by the evidence.
    The contract is plain and needs no parol testimony for the purpose of explaining it. The words in parenthesis simply meant to limit the fixtures and transformers to those in use at the poles, between the poles and within the corporate limits. A “parenthesis” is defined to be an explanatory or qualifying clause, sentence or paragraph # * * without being grammatically connected therewith..” 53 Fed. 81; 3 C. C. A. 440; Words & Phrases, Yol. 6, 5174. Should the parenthetical clause in the bill of sale 'be treated as a general clause after a particular description, see JUiiioti on (Contracts, Voi. 5, ^ 4791, for the effect thereof.
    Since the cases were consolidated and the'chancellor was in error on the main question, the whole case should be reversed.

      8. W. Woods, for appellee.
    The contract is ambiguous and required parol testimony to explain it. 90 Ark. 272; 93 Ark. 191; 94 Ark. 195. The testimony given does not vary but explains the contract. 97 Ark. 522; 105 Ark. 518. Parol testimony is admissible, however, to add to .a written contract some provision, where the writing, on account of fraud or mistake, does not contain all of the contract. 78 Ark. 586; 88 Ark. 383; 94 Ark. 195; 94 Ark. 575.
   Smith, J.

Appellee Barnett instituted two suits against appellant Mays (who was doing business .under the name of Mays Manufacturing Company and will be hereinafter referred to as Mays), which were consolidated and tried as a single suit. The first was a suit in replevin for a street light serial and a switch board of the value of $345. The second suit was one to recover the value of certain electric light poles and certain fixtures, tools, and other appliances which had been used in connection with the electric light plant in the city of Leslie, Arkansas, which Barnett claimed he had bought from Mays, but which Mays had refused to deliver. The value of the articles thus sued for was alleged to be $205, and, in addition, judgment was prayed for in the sum of $154.30, for advances on meters furnished by Mays to patrons of the light plant during the time Mays ran it. The facts in regard to the advances on the meters'need not be stated, as liability for this item was not denied. The answer filed denied Barnett’s ownership of the property sued for, and alleged the fact to be that Barnett had wrongfully taken possession of certain fixtures, and judgment for the value thereof was prayed, with damages for their usable value.

The decree was in favor of Barnett on all the issues raised except that the court gave judgment against him for $95, this being the value of certain meters taken from the warehouse' of Mays and which the- court found were the property of Mays, and there has been no cross-appeal by Barnett from that finding.

The main controversy in the case is over1 what is called the street light serial and switch board, and what we shall say in regard to these two articles will be decisive of the ownership of the other articles sued for.

On July 23, 1920, Mays sold to Barnett the electric light plant in the city of Leslie, and executed a bill of sale therefor, which reads as follows:

“BILL OF SALE.
“This bill of sale, made on the 23rd day of July, A. D., 1920, by and between Ed Mays (Mays Mfg. Co.) of Leslie, Arkansas, as grantor, and A. L. Barnett, of Leslie, Arkansas, as grantee.
“Witnesseth, that the said grantor, in consideration of the sum of $4,000 to me paid, the receipt of which is hereby acknowledged, does hereby sell, assign, transfer, set over and deliver unto the said grantee the following described personal property, to wit: all electric light poles on streets and alleys of Leslie, Ark., and all wire and electric light fixtures on and between said poles (including all transformers, street light fixtures), and in addition thereto all meters that are in resident and business houses in Leslie, Ark. I am selling the meters outright and agree to make proper adjustments or refunds to customers.
“To have and to hold said personal property unto said grantee and unto his heirs, executors, administrators and assigns forever. The said grantor covenants that said property is free from incumbrance, and that he has the lawful right to sell and dispose of the same; and that he will warrant and defend the title thereto against all claims whomsoever.
“In witness whereof, I have hereunto set my hand and seal this the 23rd day of July, 1920.
“Mays Meg. Go.,
“By Ed Mays,
“En. Mays.”

Barnett contends that the property sued for was conveyed by this instrument; but this is denied by Mays; and the decision of the point in controversy depends on the construction given this instrument.

It is the contention of Mays that the bill of sale is plain and unambiguous, and that it would offend against the rule which makes parol testimony inadmissible to contradict or vary the terms of a valid written instrument to admit or consider testimony in explanation of this contract.

The portion of the bill of sale said to be ambiguous is the phrase, “including all transformers, street light fixtures” included within the parentheses. It is the contention of Mays that this phrase is one of explanation, and does not enlarge the conveyance, and was intended to limit the fixtures and transformers conveyed to those in use at the poles, between the poles, and within the corporate limits of the city of Leslie, and that the contract, if properly construed, would read: “All electric light poles on streets and alleys of Leslie, Arkansas, and all wire and electric light fixtures on and between said poles, including all transformers ,and street light fixtures between said poles.” If the contract were so construed, Barnett cannot recover in this action.

But we are by no means certain that this is the necessary or proper construction of the language in question. Upon the contrary, we have concluded that the phrase quoted is an ambiguous one, and that the court below properly admitted and considered parol testimony showing the relative situation of the parties in determining the meaning of that phrase.

The rule in such cases is clearly stated in the case of Boden v. Maher, 105 Wis. 539; 81 N. W. 661; 32 L. R. A. (N. S.) 389, from which we quoted in the case of Brown & Hackney v. Daubs, 139 Ark. 53, as follows: “Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to say what the parties to a contract intended to express by the language adopted in making it is quite another thing. The former is not permissible. * * * ’ . The latter is permissible, and is often absolutely essential to show the real nature of the agreement. * ■ * * Both rules are elementary, and do not conflict in the slightest degree with each other. One prevents a written contract from being varied by parol evidence, either in regard to what was said at the time it was made or prior thereto; the other aids in determining what the contract is when its language, either in its literal sense or as applied to the fact, is obscure. The one is a rule to preserve the contract as expressed in writing; the other is a rule of construction to determine what the contract, as expressed, is, it being kept in mind that the mutual intention of the parties, so far as the same can be ascertained, governs within the reasonable meaning of the language they chose to express it; and that rules of construction to discover it are not to be resorted to unless there is some ambiguity to be cleared up. A failure to keep in mind the wide distinction between varying a contract by parol evidence and resorting to such evidence in aid of its construction often leads to error.” See, also, Stoops v. Bank of Brinkley, 146 Ark. 127; N. Y. Life Ins. Co. v. Allen, 143 Ark. 143; Ellege v. Henderson, 142 Ark. 421; Goodwin v. Baker, 129 Ark. 513; Livingston v. Pugsley, 124 Ark. 432; Arlington Hotel Co. v. Rector, 124 Ark. 90; Wood v. Kelsey, 90 Ark. 272.

Applying this rule- in the interpretation of the language of this contract, we find the following facts established by the testimony.

Mays had operated a light plant in the city of Leslie, all of which was owned by him except a dynamo,, but had ceased to operate the plant, and his franchise had been declared forfeited both by the city council and the State Corporation Commission. The city was without lights. Mays owned certain manufacturing-plants, and was using- the power plant and dynamo and the wires between his roller mill and’ two other mills known as the Lenker mill and the Perkin mill in the operation of those plants. Mays had no use for the machinery or lighting system except the dynamos and the poles and wires between the manufacturing plants above mentioned, and he had been ordered to remove all poles, wires, and fixtures of every nature from the streets of the city. The citizens of the town were anxious to have the light plant operated, and as a means to that end were endeavoring to induce Barnett to- buy it. Two of these citizens, David Cotton and Dr. Fendley, became quite active in promoting that object.

Mays prepared a complete inventory of the light-plant, which showed the cost thereof to him to have been $6,951.67. This inventory was submitted, to Barnett, who had the same checked over to ascertain whether it constituted a complete lighting system. Upon being- advised that it did, he submitted to Mays the following offer in writing:

“Leslie,' Ark., July 22, 1920.
“Mays Mfg. Co., Ed Mays, City:
“Dear Sir: After making a survey of your lighting system within the corporate limits of Leslie, and after due consideration of the matter, I have made up my mind that I will give you $4,000 for the entire system covering all the town, that is within the limits of the incorporated city of Leslie, Chandler & Griffin addition included.
“The above offer is for all the poles, wiring, meters, transformers and street lights, etc., and under the conditions that you turn same over to me and agree not to obstruct me in any way in carrying on the business of a public utility here in the city of Leslie, Arkansas, you to pay consumers back amount they had advanced on meters.
“I feel that the above offer is really more than the system is worth, but the town needs the system in operation immediately, therefore I make you this offer under the conditions as above stated, and this is all that I will give you.
“So please give me an immediate answer, as I desire to know at the earliest possible moment.
‘ ‘ Respectfully submitted,
“A. L. Barnett.”

On the same day Mays made the following reply in writing:

“Leslie, Ark., July 22, 1920.
“Mr. A. L. Barnett, City.
“Dear Sir: Referring to your letter of even date, I will accept $4,000 for our electric light wiring system in Leslie, to include the main part of Leslie, but I reserve that part of the system which I am now using in my manufacturing business, which is the line and poles beginning at our flour mill and runs by way of our Lenker plant to include our Pekin plant. You appreciate the fact, should we sell these poles and wires that we are excluding from the sale, we would not have same under, our control any longer, and therefore it might mean the shutting down of our plants. Anyway we need that part of the system which we have excluded from the deal in our manufacturing business. You want to appreciate the fact that we are not in the light business for the public, nor could we engage in the public utility work without a permit from the Corporation Commission, and that we have no intention of ever being in the light business for the public in Leslie any more. You understand that we are selling you all the meters in Leslie that are now ¡being used in our system, and that we are to take care of all refunds to customers. I understand you have checked up this wiring system of ours and fully understand what you are buying.
‘ ‘ If you wish, to accept our offer, please advise us today, and we will prepare a bill of sale and consummate the deal today.
“Yours very truly,
“Mays Manufacturing Company,
“Per Ed Mays.”

The negotiations proceeded no further until Cotton and Pendley became active. These gentlemen were' not the agents in fact of either Mays or Barnett, yet in a sense they acted for both parties by carrying the messages between.them whereby the deal was finally closed. Barnett was asked who Dr. Pendley represented, and answered, “He came there (to Barnett’s place of business) for Mr. Mays. I was going to tell you what he said. Mr. Mays sent him, for he said, ‘Mr. Mays wants to know if you will give him $3,800, and let him keep those wires.’ ” Barnett answered, “No, I won’t have anything to do with the plant unless I get it all.” This message was immediately communicated to Mays bv Cotton and Pendley, who returned in about an hour with the bill of sale. Upon reading it over, Barnett said, “This could have been made a little plainer.” But Pendley said he would guaranty that “everything goes now.”

Mays testified that when Pendley and Cotton came to him he insisted that a bill of sale be written, so that no controversy would arise over the articles sold, and that he therein specified all that was sold, and that the writing does not include the articles in controversy, because they were not between any of the poles of the system, and, as has been said, this is true if the contract is read as thus limiting the fixtures sold.

. Pendley and Cotton both testified that- when they reported to Mays that the counter-proposition contained in his letter to Barnett had been rejected by Barnett, and that Barnett would not entertain any proposition except upon the basis stated in his letter to Mays, that Mays finally said, “I’ll trade. I’ll .take it.” And when Mays drew up the bill of sale,' and when he had finished it asked, “Is that full enough, or does that cover everything- satisfactorily?” they thought it did, and repeated the conversation to Barnett. Upon delivering the bill of sale to Barnett, which they did, they received from Barnett a check for $4,000, which they immediately delivered to Mays.

We think that, once we have considered the testimony showing the situation of the parties at the time of the execution of the bill of sale, it clearly appears that Barnett intended to buy all the property included in the invoice submitted to him, and that Mays knew that Barnett so understood the bill of sale, and when he accepted the check the deal was consummated on that basis. The street lights could not be operated with-, out the street light serial and switch board, and they will, therefore, be held to be included in the term, ‘ ‘ street light fixtures, ’ ’ although they were not on or between the poles.

The court below so found and decreed accordingly, and, as we concur in that finding, the decree will be affirmed.