text:
    Probst v. Young.
    4-2982
    Opinion delivered April 17, 1933.

      W. F. Reeves, for appellant.
   Johnson, C. J.,

(after stating the facts). We think the trial court erred in giving appellee, Gus Young, one year additional time in which to cut and remove the timbers from the lands in controversy. The release of the timber rights from the Wilber mortgage made on October 31, 1912, and the timber deed from Dodd to the Redus Lumber Company of date November 2, 1912, and the quitclaim deed executed by Dodd to the appellee, Young, in 1915, when construed together, had the same effect as if Dodd had reserved in himself the timber rights in the first instance and had executed a separate timber deed thereto.

This court has held: “The exception of timber (in a deed) is the same in effect as a reservation, and the effect would have been the same if there had been an absolute conveyance of the land to appellee without any exception or reservation, and then a reconveyance of the timber." Ozan-Graysonia Lumber Company v. Swearingen, 168 Ark. 595, 271 S. W. 6.

The Green release of October 31, 1912, and the quitclaim deed from Dodd to Young of February 27, 1915, had the effect of a conveyance of all the timber rights of Dodd in and to the lands described in said deed with no limitation on the time of removal of such timber.

This court has frequently held that a deed to standing merchantable timber which specifies no time for its removal conveys a terminable estate in the timber, which ends when a reasonable time for the removal of such timber has expired. Fletcher v. Lyon, 93 Ark. 5, 123 S. W. 801; Earl v. Harris, 99 Ark. 112, 137 S. W. 806.

When the conveyances in the instant case are read in the light of “a reasonable time to remove,” the then pertinent question for determination is whether or not that time had expired prior to the filing of this suit. The Redus Lumber Company deed expired on November 2, 1917, therefore it 'became the duty of the appellee to make immediate arrangements for the removal of the timbers from said lands within a reasonable time thereafter. Appellee permitted almost fifteen years to elapse prior to the bringing of this suit, and made no preparation for the removal of the timbers from said lands. There was no testimony presented in this record as to the accessibility or inaccessibility of the timber to market, neither did appellee attempt to show that he had used any diligence whatever in cutting or removing the timber. We think that a delay of fifteen years, under the circumstances in this case, is unreasonable.

This court held in Dunn v. Forrester, 181 Ark. 696, 27 S. W. (2d) 1005, “The grantee waited over twenty years before beginning to cut and remove the timber. Such a length of time was unreasonable. It does not make any difference that it would not have been profitable to have begun operations sooner. While no hard and fast rule should be laid down, and each case must depend upon its own particular facts, we are of the opinion that 20 years were too long to wait in the present case.” This language has application to the facts in this case. The actual severance of the timber rights from the fee simple title occurred on November 2, 1912, almost twenty years before the decree was entered in this case. The Eedus Lumber Company did not remove the timber within the five years given it, and, when the time for removal given to the Eedus Lumber Company is added to the time which appellee Young has permitted to expire, the two periods aggregate approximately twenty years. This length of time is unreasonable under the facts and circumstances in this case. No additional time should have been given appellee in which to cut and remove the timbers from this land, but, on the contrary, the chancellor should have quieted and confirmed appellants’ title and canceled the outstanding quitclaim deed held by appellee, Young.

For the error indicated, the decree of the Marion Chancery Court is reversed, and the cause remanded with directions that a decree be entered in conformity with law and not inconsistent with this opinion.


source: Caselaw Access Project

author:
Johnson, C. J.,
      Mehaffy, J.,

license: Public Domain

text:
    Johnson v. Poinsett Lumber & Manufacturing Company.
    4-2911
    Opinion delivered April 17, 1933.

      C. T. Carpenter, for appellant.

      Lamb & Adams, for appellee.
   Johnson, C. J.,

(after stating the facts). It is apparent from the allegations of the complaint that the only cause of action alleged or relied upon by appellants was based upon the doctrine of “discovered peril,” or that appellees, after discovering the perilous position of appellant, “carelessly, negligently, wilfully and wantonly drove said car against her, ’ ’ thereby inflicting the injuries complained of.

The court, without objections by appellants, submitted to the jury only the question of “discovered peril” by giving to the jury instructions 1, 2, 3, 5 and 6. The fact is appellants acquiesced in the court submitting this issue only, as evidenced by the court’s statement to the jury as follows: “Plaintiff is only requesting that the issue of discovered peril be submitted to the jury.” To which appellants did not object, but, on the contrary, tacitly acquiesced.

Appellants complained in the trial court, and now complain, that the court erred in giving to the jury instruction No. 7, which told the jury as a matter of law that appellant Georgia Ann Johnson’s presence on the railroad track at the time of the injury was contributory negligence on her part, and by telling the jury in instruction No. 8 that her presence on the track at the time and place of the injury made her a trespasser as a matter of law.

It was immaterial whether or not appellant, Georgia Ann Johnson, was a trespasser. It was also immaterial whether or not she was guilty of contributory negligence in being in the place she was at the time of the injury. The only question which should have been submitted by the trial court was the one of “discovered peril.” We do not approve of the instruction of the trial court in telling the jury as a matter of law that appellant, Georgia Ann Johnson, was a trespasser. Neither do we approve of the form of the instruction telling the jury that she was guilty of contributory negligence in being at the place she was at the time of the injury, because those were not issues in the ease and should not have been given to the jury. On the other hand, we cannot see how the jury was influenced by those instructions. The jury was told, in effect, that, regardless of contributory negligence and regardless of whether or not appellant was a trespasser, yet she should recover if appellee, Bums, discovered her peril in time to avoid the injury.

This court, in St. L., I. M. & S. Ry. Co. v. Cabiness, 113 Ark. 599, 168 S. W. 1116, held: “However, the instruction could not, in any view of the case, have operated to defendant’s prejudice, for the reason that there was no controversy about the efficiency of the lookout. * * * In that state of the proof no prejudice could possibly have resulted, even if the language of the instruction was erroneous. ’ ’

In a long line of decisions this court has held: “Where the rights of the appellant were not prejudiced by the giving of an erroneous instruction, the case should not be reversed.” Lee Line Steamers v. Craig, 111 Ark. 550, 164 S. W. 274; Patterson v. Fowler, 22 Ark. 396; Hellems v. State, 22 Ark. 207; St. L., I. M. & S. Ry. Co. v. Phelps, 46 Ark. 485; Ark. Lbr. & Contractors’ Supply Co. v. Benson, 92 Ark. 392, 123 S. W. 367.

We cannot agree with counsel for appellants that there is any conflict in the instructions given by the trial court.

Lastly, it is contended on behalf of appellants that the trial court erred in giving to the jury the last half of instruction No. 8, which told the'jury that “discovered peril began, if at all, when it became apparent to Bums that appellant, G-eorgia Ann Johnson, was not only upon the track between the rails, but that she would remain there.”

There was no error in giving this instruction. Certainly appellant, Georgia Ann Johnson, would not have been injured if she had remained outside the rails. It was an admitted fact in the lawsuit that Burns was driving a small motor car, and there was no contention in the trial court that appellant would have been in any danger had she remained outside the rails. We think the uncontradicted testimony in this case shows that, had appellant remained outside the rails, she would have been in no danger.

Trial courts should be commended for narrowing down the issues for the jury’s consideration, instead of condemning them for an honest effort to do so.

No prejudicial error appearing, the judgment is affirmed.

Mehaffy, J.,

(dissenting). I do not agree with the majority in affirming this case.

The Poinsett Lumber & Manufacturing Company operated a railroad for the purpose of hauling logs. The public used the railroad track, where appellant was injured, as a highway. The track was straight for at least a quarter of a mile. Appellee’s employee, who was driving the car, testified that he first saw her a quarter of a mile ahead walking on the outside of the track; that when he got within 175 or 200 feet of Mrs. Johnson she stepped between the rails; that he thought she intended to cross the track; but he testified also that she started down the track, so that, according to his testimony, she was walking in front of the car when she was from 175 to 200 feet ahead of him. There is no testimony either by the employee who was operating the car, or any other person, that she looked back or did anything to indicate that she knew the car was approaching. The employee operating the car also testified that he was going twenty-five miles an hour, and that going fifteen miles an hour he could stop the car within 75 or 100 feet.

Ellis Renfrow testified that he lived at Singer Camp No. 1 and operated one of the motor cars; that if the rails were dry, he could stop the car when traveling 25 miles an hour in 60 to 90 seconds.

Joe Patillo testified that, if the brakes were in g’ood condition, he thought he could stop the car going* 15 or 20 miles an hour in 15 or 20 feet; that it would take 2 or 3 feet further to stop a car running* 20 miles an hour than it would one running 15, and possibly five feet further running 25 miles an hour.

The evidence showed that at the place where appellant was injured the track was straight, and showed that school children and the public used this track just as appellant was using it at the time she was injured. One witness said: “There was a beaten path in the center of the track. People going to church and children going to school from that direction used the railroad track. This fact was known to everybody in that community.”

Fred Henning, who had formerly lived at Camp No. 1, testified that the road south of the camp was straight for about one mile; that people, going in that direction used the railroad track; that there was a beaten path in the center of the track.

Mrs. Franey Hamilton testified that she saw the accident; that Mrs. Johnson was going down the track and did not look back. She saw the. car approaching her 40 yards before it struck her. The car was going about 20 miles an hour, and did not seem to slow up a bit.

The court, at the request of the appellee, gave the following instructions:

“Instruction 7. The court instructs you that under the evidence in this case plaintiff, Georgia Ann Johnson, was guilty of contributory negligence in walking upon the track, that is, such want of ordinary care on her part for her own safety contributing to her injuries, and your verdict will therefore be for the defendant, unless you further find from the evidence that after Burns discovered that she was in peril he failed to exercise ordinary care to avoid injuring her.”
“Instruction 8. In this case ‘discovered peril’ began, if at all, when it became apparent to Burns that plaintiff, Georgia Ann Johnson, was not only upon the track between the rails, but that she would remain there, and that she would be struck by the motor car unless it was stopped. That is, gentlemen, that the. plaintiff was a trespasser in walking upon the railroad track, and if, being a trespasser at that time and place she would be guilty of contributory negligence by being there, the railroad company having the. exclusive right to the use of its track.”

I think the learned trial judge should not have given instructions 7 and 8 copied above. This was a logging-railroad, and the place where appellant was injured was constantly used by the public as a footpath, and everybody, including the employees of the railroad company, knew it. This being true, the question whether appellant was guilty of contributory negligence was a question of fact for the jury.

In instruction 8 the court told the jury that discovered peril began, if at all, when it became apparent to Burns that Georgia Ann Johnson was not only upon the tracks between the rails, but that she would remain there, and that she would be struck unless the car stopped.

That might be true if there was anything about her appearance or behavior to indicate that she was aware of the approach of the car. But, if there was nothing about her conduct to indicate that she knew of the approach of the car, it was the duty of the driver to immediately take precautions to prevent her injury.

When the operator of an engine or car sees one walking in front of the car with her back to the car, and apparently oblivious to its approach, he cannot presume that she will get off the track. If she knew of the approach of the car or there was anything in her conduct to indicate that she knew the car was approaching, the driver of the car would have a right to presume that she would step off the track.

The jury should have been told, in connection with instruction No. 8, that, if the driver of the car discovered the appellant on the track between the rails, apparently unconscious of the approach of the car, he must immediately exercise whatever care was apparently necessary to avoid striking her. If she was on the track in front of the moving car, she was in danger, and the doctrine of discovered peril means that where the danger of inflicting an injury is discovered by the person inflicting it in time to prevent the injury by the exercise of proper care, he will be liable for the injury if he does not exercise reasonable care, though the injury would not have occurred but for the previous negligence of the person injured. Furst-Edwards & Co. v. St. L. Sw. Ry. Co., (Tex. Civ. App.) 146 S. W. 1024; Chesapeake & Ohio Ry. Co. v. Corbin’s Admr., 110 Va. 700, 67 S. E. 179; Mo. Pac. Ry. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849.

This court said: “In this case the evidence tended to prove that the engineer saw the plaintiff walking so near the track that her situation was perilous; her back was towards the train, and a bonnet was over her head, so that it was apparent that she was oblivious to her danger. This was apparent to the engineer at a distance when he could by ordinary effort have stopped the train before striking plaintiff.

“But the defendant is further liable because its engineer saw the plaintiff ahead and so near the track that she would be struck by the passing train; and that she gave no evidence that she was aware of the approach of the train; and after thus discovering her perilous situation the defendant negligently failed to give any warning signal of the danger.” St. Louis S. W. Ry. Co. v. Thompson, 89 Ark. 496, 117 S. W. 541.
“The most obvious suggestion of prudence and social duty requires that the engineer who is driving the train shall give warning signals to a trespasser, whom he sees on the track in front of the train with his back to it, in sufficient time to enable him, after hearing the signals, to quit the track in safety; and this is so, although the trespasser suddenly and unnecessarily assumes a place in dangerous proximity to the track.” Vol. 2, Thompson on Negligence, § 1741.

When one discovers a person on the track with his back to the approaching car, and there is nothing to indicate that the person-is aware of the approach of the car, it is the duty of the driver of the car to give extra alarms, and, if the alarms are not heeded, then to check the speed or stop the car. St. Louis, I. M. & So. Ry. Co. v. Evans, 74 Ark. 407, 86 S. W. 426.

The evidence in this case shows that the driver discovered the pedestrian in front of the car with her back to him, apparently oblivious to the approach of the car, and it does not show that he took any precaution at all until too late to avoid the injury. If one can operate a car or a train running directly toward the person on the track, when such person gives no indication that the approach of the car has been observed, and, without giving any alarm, strikes such pedestrian, then the doctrine of discovered peril would be meaningless.

One’s peril is discovered when he is seen walking in front of the train and apparently oblivious to its approach, and the driver should not wait until it becomes apparent that the pedestrian was not going to get off the track. It might not become apparent to the driver until he struck the person.

It was not proper to tell the jury that her peril was not discovered, if at all, until it became apparent to Burns that she would be struck by the motor unless it was stopped. Her peril was discovered when she was seen in a situation of danger of which she was ignorant.

I think also that the clause in the instruction, “if at all,” might have been interpreted by the jury as an expression of doubt by the court as to whether her peril was discovered or not.

There are two instructions numbered 8 in the abstract, and the second one tells the jury that Mrs. Johnson was a trespasser. Under the evidence in this case she was a licensee, and the jury should not have been told that she was a trespasser. To be sure, this case was tried on the theory of discovered peril, and there would be no difference in the liability of the appellee under that theory, whether she was a licensee or trespasser, but telling the jury that she was a trespasser was equivalent to telling them that she was a wrongdoer, because every trespasser is a wrongdoer, but a licensee is not necessarily a wrongdoer. The court should not have told the jury that she was a trespasser.

I think the court should not have told the jury when appellant’s peril was discovered. That was a question of fact, for the jury. The jury should have been told what constitutes discovered peril, and then the jury should decide whether, and when, her 'peril was discovered.

I therefore think that the case should be reversed.

I am authorized to say that Mr. Justice Humphreys and Mr. Justice Kirby agree with me.


author: Kirby, J.

text:
    Union Compress & Warehouse Company v. Shaw.
    4-2823
    Opinion delivered January 23, 1933.

      Gentry & Gentry, for appellant.

      John P. Vesey, for appellee.
   Kirby, J.

This appeal comes from a judgment for damages for personal injuries to appellee, an employee of appellant company.

Appellee was injured on March 4, 1931, while working for the appellant company in its warehouse at Hope, Arkansas, hy a bale of cotton falling on his foot and leg, breaking it. It was alleged the injury was caused by the negligence of a fellow employee while appellee was trucking cotton from the warehouse into a freight car to be loaded therein. It was the duty of the employee in the car to help unload the bale of cotton from the truck, steady and set it up on end in the car. When he unloaded the bale and started back with the truck, the other employee failed to steady or hold it up and negligently allowed it to fall on his leg, breaking it, before he could get in the clear with the truck.

The appellant concedes that the evidence is sufficient to- justify submitting the issue to the jury, which found a verdict for damages against the company. They relied on the release executed on the 9th day of April, 1931, by the appellee in consideration of the payment by the company of the hospital bill, the doctor’s bill incurred by the appellee on account of the injury and the payment to him of the sum of $20; it being contended by appellant that the release is binding upon the appellee, and no showing was made at the trial sufficient to avoid it, and that the court should have given appellant’s peremptory instruction, and that the court erred in giving plaintiff’s requested instruction No. 1, and says in its brief: “On these two propositions alone we base our right to a reversal of the judgment of the trial court.”

Appellee admitted that he executed the release, but said that he could neither read nor write (except he could write his name), and that the release was not read or explained to him; that he did not understand it was final anyway, and that when he got back to his home and his wife read the check and explained the effect of it, he refused to carry out the agreement and had never cashed the check. On the. day the release was executed Mr. Kyler, the superintendent of the compress company, went down in his car taking the insurance adjuster with him, to the home of appellee, where he- found him sitting-on the edge of the bed. He was still using a crutch, and his foot was swollen and bound up. They took him out on a stretcher, put him in the car and carried him to the compress offices where in the presence of Mr. Kyler, the manager, and Mr. Franklin, the immediate superintendent of appellee in his work, the release was executed. It was not read over to appellee before he signed it, but the witnesses stated that it was explained to him. The adjuster, Mr. McIntosh, asked him how the injury occurred, and appellee explained it to him, and was advised by McIntosh, after he had made his statement, “that he. did not think there was any liabildy on the part of the compress.” McIntosh asked him how much money the compress companv had paid him and how much they had expended: “that, after McIntosh advised him that he did not believe there was any liability, he told Shaw that they wanted to do what was right and said that they wonld pay the doctor bill, the hospital bill and give him $15 if he would sign a release; the appellee stated that this sum looked mighty small, and finally Mr. McIntosh offered him $20 and to pay all the bills if he would agree to release the compress, and “the negro said that this sum looked mighty little but, if that was all they would pay, he guessed it would be all he wonld get.” McIntosh then made out the release, and it was explained to appellee, and, when it was finally explained to him, McIntosh gave him his fountain pen and told him where to sign; then Mr. Franklin and Mr. McIntosh signed as witnesses to his signature, and McIntosh took Shaw home in his car. McIntosh gave him a draft for $20 after he had signed the release. Mr. Kyler stated further that the release was not read to Shaw, but was fully explained to him; that he did not know whether or not it was told him that the doctor said he wonld be well in 8 or 10 days, that he might have said as much, but he did not remember it. Said neither the check nor the release was read to appellee.

The instruction No. 1, objected to, reads as follows:

“If you find from a preponderance of the evidence in this case that the plaintiff was injured while in the employ of the defendant, and while in the exercise of due care for his own safety, and that said injury was the direct result of the negligence of another employee of the defendant, and if yon also find from a preponderance of the evidence that the plaintiff, at the time he signed the release introduced in evidence, did not know what he was signing, then and in that event you shall find for the plaintiff.” This court has concluded that the trial court erred in giving’ this instruction.

Appellee admitted the execution of the release, but said he could neither read nor write. Said it was not read to him or explained and the burden of proof was upon him to show, of course, that it was executed or procured in such a manner as wonld release him from its binding effect.

The undisputed testimony shows that neither the release nor the check was read to appellee before he signed it, and that he did not know what was written in the check until he got home and his wife read it to him, and that he then refused to cash the check and never had done so. Appellee testified that he did not know what he had signed, but he did recognize the signature on the release exhibited in evidence as having been made by him. Said the reason he signed the release was that his leg pained him so he was sick and wanted to get back home and get to bed.

It has been held that one cannot avoid the effect of a contract of release by stating that he did not read it when he signed it, or know what it contained. Texas Co. v. Williams, 178 Ark. 1110, 13 S. W. (2d) 309.

In 23 R. C. L., par. 17, page 387, it is said: “But one who has signed a written release, without being induced thereto through any fraud or deception, cannot avoid its effect on the ground that at the time he signed the paper he did not read it or know its contents. ’ ’

Although it is true that appellee could not read, it was shown that the effect of the release 'was explained to him, but, although he testified to no single act of the representatives of the company who were present when the release was procured that would avoid it, it was also shown that, upon his explanation of the occurrence causing the injury, the claim agent told him that there was no liability upon the part of the compress company for the injury, and that they would give him so much for a release under the circumstances, desiring to treat him fairly. This statement was not disagreed to by either of the representatives of the compress company, and evidently induced the appellee to execute the release which he would not otherwise have done; and under the circumstances, although he is not allowed to avoid the effect of the release on account of not having it read to him, if he was induced to sign it by the deception, whether it was intentionally fraudulent or not, practiced by the claim agent in making the statement that there was no liability on the part of the company for payment of damages for the injury suffered by him, such would not be the case. No objection was made to this statement by his superiors — bosses—and he executed the release under these conditions and repudiated the contract immediately upon being’ informed by his wife of the contents of the check.

The instruction No. 1 was not an accurate statement of the law under the circumstances, and the majority has determined that it was erroneous, and that the cause must be reversed on account of its prejudicial effect. For this error the judgment is reversed, and the cause remanded for a new trial.


author: Johnson, C. J.,

text:
    Field v. Gazette Publishing Company.
    4-2834
    Opinion delivered March 27, 1933.

      Horace Chamberlin, for appellant.

      Cockrill & Armistead and Owens & Ehrman, for appellee.
   Johnson, C. J.,

(after stating the facts). From the above statement of facts it will be seen that the trial court made application of the three-year statute of limitations in bar of appellant’s alleged right of recovery. (Crawford & Moses’ Dig., § 7148).

It is conceded on behalf of appellant that, if the trial court was correct in instructing the jury that, “if you find that the plaintiff contracted the malady of which, he complains previous to June 10, 1926, then you will find for the defendant,” this case should be affirmed.

It is the contention of appellant that the three-year statute of limitations was tolled or held in abeyance until appellant, or his physicians, determined the specific malady from which he was suffering and that this information was not obtained until sometime in 1928.

Volume 17 It. C. L., entitled, “Limitation of Actions,” 30, page 765, in part, reads as follows:

“Negligence Actions. In applying these general principles in negligence actions it has been held that the statute as to actions for personal injuries begins to run at the time the injuries are sustained although their results may not be then fully developed.”

In Wood on Limitation of Causes, vol. 2, page 844, the author announces the rule as follows:

“In actions from injuries resulting from the negligence or unskillfulness of another, the statute attaches and begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained. The gist of the action is the negligence or breach of duty and not the consequent injury resulting therefrom.”

As we view the situation, the great weight of American authority is to the effect that the cause of action arises and the statute of limitations begins to run from the date of the negligent act and not from the time the full extent of the injury may be ascertained. Cappusi v. Barone, 266 Mass. 578, 165 N. E. 653.

The court has reached the conclusion that the lower-court made correct application of the three-year statute of limitations and therefore did not commit error in giving the instructions complained of.

As we understand this record, appellant does not contend that the appellee fraudulently concealed any facts with reference to his injuries, and he does not contend that the appellee had knowledge of facts or information other than those well known to appellant.

The trial court submitted to the jury the question as to whether or not appellant suffered any injury after June 10, 1926, by-or through the negligent act of the appellee, and the jury, by its verdict, has found against him on this issue. The verdict of the jury necessarily found that appellant’s injury was inflicted prior to June 10,1926.

It is the conclusion of this court that the trial court was correct in declaring that appellant could not recover for any injury suffered prior to June 10, 1926, and that the jury has found from the testimony that he suffered no injury at the hands of the appellee after June 10,1926.

Therefore the judgment should be affirmed.

Butler, J., disqualified and not participating.

ERRATA 187 ARKANSAS REPORTS at page 256 Detach at perforation, moisten the back, and paste over the third full paragraph on page 256 of Field v. Gazette Pub. Co.: Volume 17 R. C. L., entitled, “Limitation of Actions, ” § 130, page 765, in part, reads as follows:

      ERRATA 187 ARKANSAS REPORTS at page 256 Detach at perforation, moisten the back, and paste over the third full paragraph on page 256 of Field v. Gazette Pub. Co.: Volume 17 R. C. L., entitled, “Limitation of Actions, ” § 130, page 765, in part, reads as follows:


author: Smith, J.

text:
    United States Fidelity & Guaranty Company v. Edmondson.
    4-2894
    Opinion delivered April 3, 1933.

      William M. Hall and Hill, Fitzhugh & Brizzolara, for appellant.

      George F. Toumans, George W. Dodd, Joseph R. Brown, James B. McDonough, Robt. M. Zeppenfeld, for appellee.

      Daily & Woods, for R. C. Frambers.

      C. R. Barry, intervener, pro se.

   Smith, J.

Thomas "W. Edmondson died testate at his home in Fort Smith on October 4, 1925. He left no children, but was survived by his widow. The will, which was a very carefully prepared instrument, was probated October 7, 1925. The testator devised his entire estate to John H. Vaughan, in trust for the following uses and purposes.

The testator declared that “it is my will and I hereby direct and I hereby charge my entire estate, both real and personal, with the proper care and attention and expenses of my dearly beloved wife, Margaret Agnes Edmondson, during her lifetime, she being at present time in delicate health, and not in proper condition to look after her own affairs; ’ ’ and the trustee was authorized and directed “to use whatever portion of my estate, whether real or personal, as may be necessary, for the proper care and maintenance of my dearly beloved wife during her lifetime.”

A number of bequests were made payable in money, the direction being given to the trustee “that, if there is not sufficient funds in my personal estate to pay the above bequests, as above set forth, that upon the death of my dearly beloved wife that, my real estate be disposed of for the purpose of paying my said bequests that have not been paid out of my personal estate.”

In the paragraph next following, the testator directed his trustee ‘ ‘ * * *' to hold my entire real estate intact until after the death of my dearly beloved wife,” but the trustee was directed to sell any unimproved lands the testator might own at his death and, if necessary, to hold the proceeds of such sale for the proper care and maintenance of his wife, but the use of so much of this money was authorized as was necessary to keep his improved property in proper repair.

The testator directed that, after the death of his wife, the trustee should then sell whatever real estate may be necessary, and, if the personal bequests had not been paid, to pay them. Following this direction, it is recited that “I hereby bequeath the rest, residue and remainder of my estate to the pastor of the Catholic Church of the Immaculate Conception of Fort Smith, Arkansas, to be used, however, for the purpose of going towards the erection of a school for Catholic young men, provided such a school is located in Fort Smith, Arkansas, within ten years after my death. ’ ’ The will further provided that, if the school were not located and in operation within the time limited, “* * * the rest, residue and remainder of my estate is hereby bequeathed to the pastor of the Church of the Immaculate Conception of Fort Smith, Arkansas, to be used by said pastor and the trustees of said church for such pressing needs as the church may have at that time.”

The paragraph next succeeding directed the trustee to deliver to the testator’s wife “all of our household furniture and household goods; all of our books and music, piano now in our home, to be used by my wife during her lifetime as she may desire.”

The will then provided for the selection of a trustee in succession in the event of the death of the trustee named, or his refusal to act.

The will concluded with the following provision for the compensation of the trustee: “I hereby direct that the said trustee shall be allowed, as compensation for looking- after my estate and for seeing that my dearly beloved wife is properly taken care of during her lifetime, the sum of ten per cent, of the income of said estate, providing that, if said amount is not sufficient, the probate judge of the Fort Smith District of Sebastian County, Arkansas, may make an allowance of such amount as may be sufficient to compensate my said trustee for executing this trust.”

Vaughan was appointed executor of the estate by the probate court on October 11, 1925, and immediately took charge of the property in that capacity, and on October. 22, 1925, he was appointed guardian of Mrs. Edmondson, the testator’s widow, on the ground that she was physically incapable of managing her own affairs. A subsequent order of the probate court adjudged Mrs. Edmondson to be an insane person. Mrs. Edmondson lived in St. Louis, Missouri, at the time this order was made for the purpose of obtaining- treatment which her physical condition required.

Vaughan took charge of all the assets, a bakery being a part thereof, which he operated for ten months and then sold. Vaughan died in September, 1926, and his wife succeeded him as executor and as guardian, and filed in the probate court a report of her husband’s administration of the estate. . This settlement was approved and confirmed. Mrs. Vaughan filed a report of her subsequent administration, but this report has not been finally acted upon by the probate court.

Mrs. Vaughan, as executrix and trustee of the will of Thomas W. Edmondson, deceased, brought suit in equity to construe the will and to terminate the trust, and it became necessary for Mrs. Edmondson to file a petition for mandamus in this court to compel the then chancellor to allow her to file an answer and cross-complaint and to file a motion to set aside the appointment of a guardian ad litem for herself as an insane person. A writ of mandamus was awarded by this court, and it was directed that Mrs. Edmondson be allowed to appear through attorneys of her own selection for the purpose of litigating the issues there raised. Edmondson v. Bourland, 179 Ark. 975, 18 S. W. (2d) 1020. Thereafter the various questions were litigated which we are asked to decide upon the present appeal.

It appears that Vaughan advised Mrs. Edmondson that she was required to elect whether she would accept the provisions of the will in lieu of her dower, and advised her further to make the election, and, pursuant to this advice, Mrs. Edmondson elected, in the time and manner required by law, to have dower assigned to her. It is insisted that this was the first of many frauds committed by Vaughan, in that no election was required, and that Mrs. Edmondson had the right to accept the benefits of the -will in addition to her dower.

We think no fraud was practiced upon Mrs. Edmond-son by Vaughan in advising- her that she was required to elect whether she would accept the provisions of the will for her support, or would renounce its provisions and have dower assigned her.

It was said, in the case of Gathright v. Gathright, 175 Ark. 1130, 1 S. W. (2d) 809, that:. “Under the common law the testator will not be presumed to have intended a devise in his will to be a substitute for dower unless the claim of dower would be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat the will. In other words, at common law it is held that, where the testator’s intention was not apparent upon the will, the devise would be presumed to be in addition to dower.” The case of Kollar v. Noble, 184 Ark. 297, 42 S. W. (2d) 408, is to the same effect.

We are of the opinion, however, that the intention of the testator is manifest that the provision for his -wife was in lieu of dower, and also that the assignment of dower would conflict with his purpose in making the will.

In addition to his life insurance, the testator made ample provision for the support of his wife, who was a •confirmed invalid when the will was made. He provided that, if necessary, the entire income of his estate should be devoted to her care, and that, if necessary, the corpus of the estate might also be used, but it is apparent that he did not contemplate that this contingency would arise. He had the purpose of establishing a school in the city of his residence for young men of his religious faith, and, after paying certain bequests and caring for his wife, he wanted the portion of his estate then remaining to be devoted to the school which he desired to be established. The testator’s purpose was manifest, if his wife’s necessities did not otherwise require, to hold the entire estate intact until after her death, selling, if necessary, the unimproved property first. Direction was given to keep the improved property in repair — all of it — and the idea that the will was to operate as to only half of the estate appears to be repugnant to the intention of. the testator, who had directed that all of his estate, both real and personal, be disposed of, managed and controlled by the trustee named, and it is generally held that the creation of a trust which contemplates possession and control by a. trustee of all the lands owned by the testator is inconsistent with the claim of dower.

There was no fraud in procuring the election which Mrs. Edmondson made. It is true that she had been adjudged incompetent by the probate court, but she alleges that she is now and has at all times been sane, and the court found, in the decree from which this appeal comes, that Mrs. Edmondson was sane and had been sane during all the time this litigation was pending. No finding was made as to her previous condition. Mrs. Edmondson was a witness in her own behalf, and her testimony makes it clear that she was never insane, although afflicted with arthritis, which disease rendered her physically helpless. There was a necessity for her to elect, as the language of the will refutes the idea that she might enjoy its benefits and have dower in addition.

We are of the opinion also that Mrs. Edmondson was sane when she made her election not to take under the will, and is bound thereby, although there had been entered by the probate court an order adjudging her insane. She alleges the fact that she has been sane at all times,, and we think the testimony shows this allegation to be true. It was held, in the case of Eagle v. Peterson, 136 Ark. 72, 206 S. W. 55, to quote a headnote, that “an adjudication of lunacy is not oonclusive but prima facie evidence only, and a person who deals with the supposed insane person may show that at the time the contract was made he had sufficient mental capacity to make it.”

The question is raised by Father Horan, the Catholic priest named as the residuary legatee in the will, that the order assigning dower was void, for the reason that proper parties were not before the court to support this order in that behalf, and that the property assigned as dower was grossly in excess of the value to which the widow was entitled.

The testator was survived by no children, and the estate disposed of by his will was a new acquisition, and not ancestral. Father Horan was the residuary legatee. The petition for the assignment of dower was first filed in the probate court of Sebastian County, but when it appeared that a part of the lands were in another county this proceeding was dismissed and suit was brought in the Sebastian Chancery Court for the same purpose. This suit was brought by Mrs. Vaughan, as guardian, and no process was served upon Father Horan, who had no notice of the proceeding until long after the commissioners appointed to assign dower had discharged that duty by assigning to Mrs. Edmondson one-half of the lands and the report had been approved and confirmed by the chancery court. There were no appearances in the chancery court except by Mrs. Vaughan, as guardian of Mrs. Edmondson, and by Mrs. Vaughan, as trustee under the will.

It is insisted that, as Mrs. Vaughan appeared as trustee, all interests were properly represented; but we do not think so. The residuary legatee was a necessary party, and he had no notice of the pendency of the proceeding. Cunningham v. Dellmon, 151 Ark. 409, 237 S. W. 450. He would therefore be entitled to vacate the decree assigning dower if prejudiced thereby and to be heard upon that question, but it does not appear that any substantial prejudice has resulted from this failure, and the decree will not be reversed on that account. Very competent men were appointed as commissioners, who appear, from their report, to have made the assignment of dower in a most exact and careful manner and after a minute appraisement of the value of all the lands, as well as of all personal property. There is a difference of opinion as to the values, but it must be remembered that, having renounced the will, Mrs. Edmondson was entitled to homestead, as well as to dower, and that, although she took her homestead in addition to her dower, she was entitled to have the value of the homestead included in determining the value of the estate out of which the dower would be assigned. In other words, she was entitled to one-half of the whole estate as dower, and her homestead in addition. It was said, in the case of Horton v. Hilliard, 58 Ark. 293, 24 S. W. 493, that “in allotting dower it is not proper to deduct the homestead and assign the dower out of the remainder of the estate. The widow is entitled to dower in the whole, estate.” See also Stull v. Graham, 60 Ark. 461, 31 S. W. 46; Ex parte Grooms, 102 Ark. 322, 143 S. W. 1063; Martin v. Conner, 115 Ark. 359, 171 S. W. 125; Jameson v. Jameson, 117 Ark. 142, 173 S. W. 851.

Mr. Vaughan lived less than a year after he had qualified as executor of the estate, and he therefore made no settlement of his administration. His wife, who qualified as his successor, did, however, make a report of his administration, and this report was approved and confirmed by the probate court. Mrs. Vaughan later filed a report of her own subsequent administration, but this report has never been approved and is now pending in the probate court with many exceptions thereto.

Mrs. Edmondson, as the widow of the testator, and Father Horan, as his residuary legatee, filed pleadings in which they seek to falsify and surcharge the approved settlement of Mr. Vaughan’s administration and the unapproved report of Mrs. Vaughan’s administration, and a vast amount of testimony was taken upon the issues thus raised. The items in controversy were so numerous that the court appointed a master to state both accounts, and elaborate reports were made by the master. According to the master’s findings and report, the liability of the estate of John H. Vaughan and his surety on account of his administration was fixed at $1,954.25. Many exceptions were filed to this report, and, upon the hearing thereof, the court fixed the liability of Vaughan and his surety at the sum of $8,228.68, but in an amended finding and decree that amount was increased to $8,722.13.

The court undertook also to adjudge the liability of Mrs. Vaug’han as executrix in succession on account of her own administration, and made a tentative finding upon the subject, but, before finally adjudging the sum due on this account from Mrs. Vaughan and her surety, the court concluded that it was without .jurisdiction to enter a final judgment, for the reason that Mrs. Vaughan’s administration had not been closed in the probate court and her own settlement had not been acted upon by that court and was still pending there for final action, and one of the most important questions in the case is whether the court committed error in this respect.

Opposing counsel have cited numerous cases in which this court has considered the circumstances under which and the purposes for which chanceiy courts will review the settlements of guardians, executors and administrators. These we do not review, as the law of the case appears to be well settled. The case which announced the principle which we think should be applied here is that of Reinhardt v. Gartrell, 33 Ark. 727. Mr. Justice Eakin there said: “The courts of chancery have no power to take such cases out of the probate courts, for the purpose of proceeding with the administration. But their power and functions to relieve against fraud, accident, mistake, or impending irremediable mischief, is universal ; extending over suitors in all courts, and over the decrees in those courts,, obtained by fraud, or rendered under circumstances which render it inequitable that they should be enforced. Hence any frauds in the settlements of administrators or executors may be corrected. When that is done, if there be still a necessity for continued proceedings in the course of administration, such proceeding should go on in the probate court, upon the basis of the reformed settlement. The object of chancery intervention having been accomplished, the jurisdiction in equity should cease with the necessity. Otherwise the courts of chancery might make themselves courts of probate, in violation of the spirit and intention of the Constitution. If, however, there be no continuing necessity for a further course of administration; if the assets be collected in, and the debts be all ascertained, and nothing remains but to fix the liabilities of administrators, executors and their sureties, and the rights of creditors, legatees and distributees, and to make adjustment on equitable principles, all that business comes within the more facile and effective operation of the remedial processes peculiar to equity practice. This makes no conflict of jurisdictions, and it is most proper, in such cases, for the chancery court to retain the cause for completion.”

The instant case appears to be one in which there is no continuing necessity for a further course of administration, the assets have all been collected, the debts have been ascertained and paid, and nothing remains but to fix the liability of the guardians and executors and to distribute the assets to the persons entitled thereto. We therefore hold that the chancery court, having assumed jurisdiction, should have falsified and surcharged all accounts in their entirety, and should have entered a final decree on such findings without remanding the cause to the probate court for action on the settlements which have not been passed upon. Adams v. Shell, 182 Ark. 959, 33 S. W. (2d) 1107; Beckett v. Whittington, 92 Ark. 230, 122 S. W. 633; Brice v. Taylor, 51 Ark. 75, 9 S. W. 854; Hankins v. Layne, 48 Ark. 544, 3 S. W. 821; Sorrels v. Trantham, 48 Ark. 386, 3 S. W. 198.

We do not pass upon the unadjusted accounts pending in the probate court, for the reason that the court below has not done so. It may be necessary to hear additional, testimony in the chancery court in doing this, as many items are involved and many charges of fraud are made.

We will, however, consider the settlement which was passed upon and approved by the probate court, and surcharged and falsified in the chancery court, but we will discuss only those findings in which we do not agree with the chancellor.

The first of these items is that of the commissions allowed Mr. Vaughan, the contention being made that these should have been computed upon the net income of the estate only, and the case of James v. Echols, 183 Ark. 826, 39 S. W. (2d) 290, is cited to support that contention.

In that case an active trust was created, and it was directed that twenty per cent, of the income from the estate should be paid to the trustee for its services in administering the trust, and the trustee made a claim of twenty per cent, of the gross income for services, and the compensation claimed was allowed by the chancery court. In reversing that decree we held that, where a trustee accepts a trust created by a will, and qualifies and enters upon the discharge of the duties of trustee, he accepts the trust upon the condition named in the will, and is entitled to no other or greater compensation than the will allows, and that a direction that a certain per cent, of the income be paid for such services would be construed to mean the named per cent, of the net income, and not of the gross income.

This case was decided after the probate court had approved the claim for Mr. Vaughan’s compensation, and there is no averment and no testimony, that this allowance was obtained by any misrepresentation or deception practiced upon the court.

It was said, in the decision of a similar question, in the case of Mock v. Pleasants, 34 Ark. 63, that “mere illegal allowances to an administrator, not obtained by misrepresentation or deception upon the court, are no grounds for impeaching or setting aside a settlement in equity. The proper remedy is by appeal to the circuit court.”

In the instant case the will does direct that the compensation be fixed at “the sum of ten per cent, of the income of said estate,” which, on the authority of James v. Echols, supra, we must construe to mean the net — and not the gross — income, but this is not the only provision on that subject. The will further provides that, if in the opinion of the judge of the probate court the compensation allowed is not sufficient, the court “may make allowance of such amount as may be sufficient to compensate my said trustee for executing this trust.” The court was therefore given a discretion in the matter of compensation, and it does not appear that any fraud was practiced upon the court in the exercise of this discretion, and the judgment in this respect is therefore final and should not be disturbed.

For the same reason, we think the order and .judgment of the probate court allowing expenses incurred by Vaughan in operating the bakery should not be disturbed. The testimony is conflicting as to whether the bakery was operated at a loss, and as to the extent of such loss, if any. It is also insisted that Vaughan operated the bakery as trustee, and not as executor, and we are cited to the case of First National Bank of Fort Smith v. Thompson, 124 Ark. 161, 186 S. W. 826, and other cases, holding that, where a party acting in two capacities receives money in the wrong chpacity, the payment is in law referable to the capacity in which he is authorized to act. It is insisted that, as Vaughan should have operated the bakery as trustee, no charge should be made against him as executor. It is apparent, however, that Vaughan was not acting in the capacity of trustee, but in that of executor, and the probate court evidently proceeded upon the assumption that Vaughan would not assume to act as trustee until he had completed his duties as executor. At any rate, Vaughan included the bakery and its equipment, much of which was of a perishable nature, in his inventory as executor, all of which he later sold, and he was charged with the proceeds of the sale. The probate court, no doubt, considered the nature and extent of Vaughan’s labor in regard to the bakery and the results he was accomplishing in its management in fixing his compensation in this behalf, and, as no showing was made that fraud was practiced in procuring the orders of the probate court in regard to the bakery, we think they should not be disturbed.

At § 2559 of the chapter on Executors and Administrators in 24 C. J. 1066, it is said: “Where the same person is both executor and trustee under a will the sureties on his bond as executor are not liable for property held by him in the capacity of trustee, unless they are made so by express statute. It has been held, however, that where an executor, who is also named as trustee in the will, assumes the duties of trustee in the capacity of executor, liis sureties cannot question the capacity in which he was acting, and that, if the executor fails to qualify as trustee, and deals with the trust estate as executor, the sureties on his administration hond are responsible for his acts.”

Here Vaughan ran the bakery, and later sold it, under the orders of the probate court as executor, and we think the probate court had the power to fix his compensation and expenses, which were allowed in the sum of $799, and the judgment of the probate court in this respect will be approved.

The probate court allowed Vaughan credit for $731.06 for repairs to various buildings owned by Edmondson at the time of his death. The testimony shows that the buildings were in bad condition and required repair, and the will directed that repairs be made; indeed, the testimony is to the effect that the principal part of the expense was incurred in completing contracts which Edmondson had himself made, and the testimony shows that the money was actually expended for which credit was claimed. There is testimony that the charges were excessive, but the testimony is not conclusive of that fact, and there appears to have been no fraud in procuring the probate court to allow this credit. The judgment of the probate court in this respect should therefore be approved.

The action of the chancery court in falsifying and surcharging the accounts in other respects will be affirmed. We do not discuss these items, as it would unduly protract this opinion to do so. These items which we do not discuss relate either to money with which the executor was not charged but should have been, or to credits which, upon their face, there was no authority to allow.

There is a cross-appeal from the fees allowed the master and the guardian ad litem and to Mrs. Vaughan’s attorney as executrix, but we think no error was committed in these respects, and the fees allowed do not appear to be unreasonable.

The decree of the court below will therefore be reversed, and the cause will be remanded, with directions to approve the settlement of Vaughan’s administration in respect to Ms commissions and his salary and expenses in the operation of the bakery and for the repairs made as allowed in the probate court. The decree in other respects in regard to the settlement will be affirmed.

The court will also proceed, without remanding the cause to the probate court, to adjudge and settle the accounts of Mrs. Vaughan’s own administration.


author: Mehaffy, J.

text:
    National Lumber & Creosoting Company v. Mullins.
    4-2951
    Opinion delivered April 3, 1933.

      James D. Head, for appellant.

      Danaher & Danaher, for appellee.
   Mehaffy, J.

The appellee, J. F. Mullins, a contractor, entered into a contract with the Highway Commission for the construction of certain bridges on the State highway in Lafayette and Columbia counties. He, as principal, and the Consolidated Indemnity & Insurance Company as surety, entered into a bond as provided by act 368 of the Acts of the General Assembly of 1929, conditioned as prescribed by said act. The appellant furnished material of the value of $5,739.26. This suit was brought in the Jefferson Chancery Court against the contractor and the surety company for this amount.

Mullins filed answer, denying the indebtedness and denying that final estimate had been made, and alleging that, under the terms of the contract, he was not to pay for the material until he had received payment from the Highway Department, and that no such payment had been received. He further alleged that it was a general and uniform custom well known to the appellant, and was a part of the contract, that the purchase price of material would not become due until the contractor had collected from the Highway Department.

The surety company answered denying liability, and alleging that the claim was barred because suit was not begun until more than six months after the completion of the work; that it was not liable on the bond because the Commission had breached the contract by failing to pay Mullins, thereby preventing him from paying appellant. The surety company also alleged that the contractor was not to pay for material until he received payment from the Highway Department, and that this payment had not been made, and that therefore there was nothing due to appellant. It also denied all the material allegations in the complaint.

The Highway Department answered, alleging that final voucher had been issued and turned over to the bonding company; that it had not been paid and was still in the hands of the bonding company; the voucher issued and turned over to the surety company was for $6,486.11.

The question for our consideration is whether, under the contract, the amount owing to appellant was due in thirty days after it was furnished, or whether it was due after the Highway Department had paid the contractor. The following, which was rendered to Mullins, the contractor, was introduced in evidence:

“May 22, 1931
“Diet. 5/21/31
‘ ‘ Quotation
“No. T-57
“Subject: Inquiry treated lumber and piling for Arkansas Highway Project 1133, for delivery Waldo, Lewisville, Buckner and Stamps, Arkansas.
“Mr. J. F. Mullins,
“Pine Bluff, Ark. .
“Dear sir:
“To confirm ’phone conversation of today, we quote below f. o. b. cars above points — terms thirty days net, subject to your acceptance within thirty days — the following yellow pine piling, and yellow pine and west coast fir lumber — all treated in accordance with Arkansas State Highway specifications:
“12 SYP Piles 26'
“22 28'
“24 30' $.31% B. Ft.
“68 32'
“24 34'
“Approx. 70,000 B. Ft. treated Fir & YP Ibr., framed, $62.50 MFBM.
“If you should take over this project, we sincerely trust that our quotation will enable you to favor us with your order. However, if the award goes to another, will appreciate your advising us as to the .contractor’s name and address.
“CC-WW Snodgrass
“F. J. Williams
“Very truly yours,
“National Lumber & Creosoting Co.
“By:”

This quotation bears the following notation in pen and ink:

“Pine Bluff 6/6/31
W.L.M.
“'Saw Mr. J. F. Mullins this morning, and he is giving us this order, and is having correct list made at Little Rock and mail order in to us Monday or Tuesday.
“F. J. W.”

Mullins, the contractor, testified that he talked to Mr. Williams, the representative of appellant, and that nothing was said about the payment, and in fact nothing was discussed but the price, nothing was said in their conversation about when it was to be paid. Mullins also testified that on another job he had had a conversation with a different agent of appellant, and told the agent that he had always bought his material to be paid for as he received his money, and that the agent said that this was satisfactory; that he, Mullins, expected to pay when he received his money as the work progressed; that he had received no money, but merely warrants.

We do not set out the entire testimony of Mullins, but he testified positively that in this contract there was nothing said about custom or anything else except the price. There was some evidence about the contractor not being able to pay until he received money from the State.

M. K. Orr testified that the custom had been that the money had to come from the job to pay for the material, and that all companies understood that; that when estimates were paid the contractor paid the material-man ; that this had been the custom.

Mr. Schnable also testified to the custom, his evidence being substantially the same as that of Orr and Mullins.

F. J. Williams, representative of appellant, testified that it had never been appellant’s custom to furnish materials and wait until the contractor was paid; that their contracts always had been made payable at times definite and certain.

Orr, being recalled, testified that, although the quotation carried a 30-day clause in it, the understanding was that the money was to come out of the .job. He also testified that the State first fell behind in its payments in October or November.

Mullins, being recalled, testified that, in the conversation discussing the buying of these materials, there was no discussion as to what dates or when payments should be made; that was not discussed in the last order, but it was in the first order; that that conversation related, not only to that job, but to future jobs, and that in this contract there was nothing definite about the time of payment; the conversation was merely about prices, and that was all that was discussed. There was some correspondence between the parties, but it is unnecessary to set’it out here.

The appellant introduced the contractor’s bond and warrant for the final estimate which had been given to the surety company, and introduced copy of the statement of May 22, 1931, showing that the terms were 30 days net. The evidence also shows that Mullins said that if the price was satisfactory he would give the appellant the job.

It is not contended by the appellees that anything was ever said about when the material should be paid for. Mullins does testify that at some other time he bought some material from an agent named Brown, and discussed the custom, and that it was understood that that applied to future contracts as well as the one made with Brown. He does not say when this contract with Brown was' made, and, so far as the record is concerned, it may have been years before.

After the evidence was introduced, the court found that appellees were indebted to the appellant in the sum of $5,739.26 with interest at the rate of 6 per cent, per annum from 30 days after the several dates of the itemized statements, but the court found that under the contract the indebtedness was to be paid out of the amount due from the State of Arkansas, which had not been paid. The court also found that the voucher for the last estimate, $6,486.11, was issued and delivered to the appellee surety company.

The court rendered judgment in favor of the appellant for the amount sued for, but provided in the decree that no execution should issue on the judgment; that the surety company should assign the voucher to the clerk of the court, who was appointed receiver, to hold the voucher or any other evidence of indebtedness issued by the State in lieu thereof, and, when the amount has been paid, the receiver should then pay the plaintiff, and if the amount collected by the receiver was not sufficient to pay the plaintiff, then plaintiff should have judgment for the deficiency against the contractor and surety company.

The National Lumber & Creosoting Company prosecutes an appeal to reverse that part of the decree which holds that the appellant was to be paid out of the amount due from the State, and that no execution should issue upon the judgment, and that part that appointed the clerk receiver, and directed him to pay appellant when he collected on said warrant. Appellant insists that it was entitled to a judgment against the contractor and surety company, and entitled to have execution on said judgment. .

The only question for our consideration is whether the cause of action accrued within thirty days after the material was furnished, as stated in the letter or quotation of May 22, 1931, or whether appellant was bound by the custom, and the amount was not due and collectable from the contractor until the State had paid the contractor.

The appellees insist that the amount was not due when suit was brought, and also insist that the claim was barred by the statute of limitations, and the court stated that the amount was due within thirty days, as stated in the quotation, and gave a judgment for interest from that date. If the appellee’s theory is correct, the suit could not have been maintained at the time it was brought, because no cause of action would have accrued until the State paid the contractor; and, if the theory of the appellees was true, the bond would have been worthless. There would have been no reason to give the bond, and no liability thereon. If the amount was not due until the State paid, and the State did not pay within the time limited by the statute to bring suit against the contractor and his surety, there would have been no reason to give the bond at all.

The rule that parties to a contract are bound by custom or usage is based on the assumption that the parties contracted with reference to the custom. In the instant case the only statement ever made between the parties with reference to the time when the claim became due was the statement in the written memorandum that it was due in 30 days, and in order to be binding a custom must be reasonable. There is not only no evidence in this case tending to show that anything was said about the custom when the contract was made, but the custom contended for by the appellee would be unreasonable because it would make it impossible for the material furnisher to recover on the bond.

A custom applicable to trade or business is not binding on the parties if there is either notice or contractual stipulation that the transaction is without regard to the custom. Evidence of usage or custom is not admissible to vary or contradict the terms of a plain, unambiguous contract. Where the writing states that the claim will be due at a certain time, and no objection is made to this, and nothing said about custom or usage, the claim will become due at the time mentioned in the written instrument.

Appellees contend that the custom became part of the contract, and that all the authorities sustain this proposition, and cites note 28 in 17 C. J. 501. There are several notes on this page, but they are all to the effect that the evidence of custom can neither contradict, destroy, nor modify what is otherwise plain. They are, however, all to the effect that the evidence of custom is admissible in the absence of express stipulations, and where the contract is silent, but it is not admissible to contradict or vary the terms, but only for the purpose of explaining and supplying details. Appellee also calls attention to 17 C. J. 453, and 503. On page 453 it is stated: “Further, a loose and variable practice will not be allowed to control the rights of the parties, nor will an alleged usage, which leaves some material element to the discretion of the individual. But it is not essential that the custom be used by everybody and at all times. A usage or custom of trade to which no limit is assigned to its extent is bad and therefore will not be given effect by the courts.”

It is stated on page 503, cited by appellees, that evidence on the question of terms, quantity, and price is admissible, but the text there' clearly shows that it is admissible for explaining ambiguous terms, and is never admissible to contradict the terms of a written contract.

Appellees also call attention to the case of Robinson v. United States, 13 Wall. 363, but the opinion in that case says: “Parties, who contract on a subject-matter concerning which known usages prevail by implication incorporate them into their agreements if nothing is said to the contrary.”

But, if anything is stated to the contrary, the rule does not apply. The case of Alexander v. Williams-Echols Dry Goods Co., 161 Ark. 368, 256 S. W. 55, announces the same rule, that is, that the usage is incorporated into the agreement if nothing is said to the contrary.

It is next contended that this contract was verbal. It is wholly immaterial, we think, whether it is regarded as a written or oral contract. The important question is the intention of the parties, and that is to be arrived, at by a consideration of the entire contract. The contract expressly provides that the material shall be paid for within 30 days, and this is not contradicted anywhere.

This court has many times decided that evidence of custom and usage is admissible where the contract is silent and ambiguous. On the other hand, this court has always held that usage and custom cannot be invoked to defeat the express terms of a written contract. The usage and custom is applicable only where the contract is silent or its terms ambiguous. Batton v. Jones, 167 Ark. 478, 268 S. W. 857; Southern Coal Co. v. Searcy Transfer Co., 152 Ark. 471, 238 S. W. 624; Ft. Smith Bldg. & Loan Ass’n v. Little, 181 Ark. 1055, 29 S. W. (2d) 291.

We think the evidence in this case' is insufficient to establish the fact that this contract was made with reference to the usage and custom testified about.

That part of the judgment of the lower court directing the receiver to hold the voucher or any other evidence of indebtedness issued by the State in lieu thereof, and when the amount has been paid, the receiver should then pay the same to appellant, is affirmed.

There is no dispute about the amount of the indebtedness, and the lower court entered judgment for $5,-739.26. The decree of the court, however, holding that execution should not issue and that payment was not to be made until the 'State paid the contractor, is reversed, and judgment entered here for the amount sued for.


author: Humphreys, J.

text:
    Ætna Life Insurance Company v. Dewberry.
    4-2966
    Opinion delivered April 10, 1933.

      Owens & Ehrman, for appellant.

      John E. Miller, C. E. Yingling and Rowland H. Lindsey, for appellee.
   Humphreys, J.

This is an appeal to this court from a .judgment recovered in the circuit court of White County on total disability clauses in two indemnity insurance policies issued by appellant to appellee. The two disability clauses provided for payment in case the disability occurred before the insured attained the age of sixty years, and payments to begin upon receipt of proof of the disability.

The undisputed proof reflects that the disability complained of occurred before the appellee attained the age of sixty years, and that appellant was notified of such disability on or about June 1, 1931. The jury was instructed that, if it found appellee became permanently disabled within the meaning of the disability clauses, it should return a verdict for the monthly amount agreed to be paid from the date of the disability, together with the amount of premiums paid after the disability occurred. According to the record before us, a dispute existed in the testimony as to whether appellee became totally and permanently disabled from disease on or about June 1, 1931, and the jury found this disputed question of fact against appellant, and it is bound by the finding, unless the court erred in submitting the question on incorrect instructions or in refusing to give correct instructions requested by appellant.

Appellant contends for a reversal of the judgment because the court erred in giving instructions Nos. 1 and 2, requested by appellee, which are as follows:

“1. You are instructed that total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business. And so in this case, if you believe from a preponderance of the evidence that the plaintiff is disabled by disease to such an extent as to wholly disable or prevent him from the doing of all the substantial and material acts necessary to be done in the prosecution or carrying on of his business, that of farming, and that such disability is permanent and total, then your verdict will be for the plaintiff.”
“2. You are instructed that, if you find from a preponderance of the testimony in this case that the plaintiff, as the result of disease, is wholly disabled and prevented from doing any and every kind of work pertaining to his occupation, or within the scope of his ability, and that such disability is permanent, then your verdict will be for the plaintiff.”

The argument is made that the two instructions are in conflict in defining total and permanent disability. It is true that different language is employed in defining total and permanent disability in the respective instructions but with the same meaning in both. This court has used varying language in defining these clauses in the several cases brought before it for determinination, but always with the same meaning. Instruction No. 1, as given, was based upon the cases of Ætna Life Insurance Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, and Ætna Life Insurance Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310, while instruction No. 2 was based upon the language defining total disability in the case of Industrial Mutual Indemnity Company v. Hawkins, 94 Ark. 417, 127 S. W. 457. Both definitions, however, were to the same effect. The instructions complained of were not in conflict.

Appellant also argues that instructions Nos. 1 and '2 close with the words, “then your verdict will be for the plaintiff,” and that both are inherently wrong because they ignore some of the vital issues in the case, to-wit: the issue as to whether the total and permanent disability occurred before appellee attained the age of sixty years and the date on which the disability occurred, and the issue of whether appellee made the proof of loss. These alleged issues were established by undisputed testimony, and it was unnecessary to embrace them in the instructions, even though each instruction closed with the words quoted above. The jury needed no instruction concerning them as a guide. It is only where issues are in dispute that instructions should be given to guide the jury. Each instruction embraced the only issue involved, so it was no error to instruct the jury to find for the plaintiff if they should determine the issue involved in-favor of the plaintiff.

Appellant also contends for a reversal of the judgment because the court erred in refusing to give its requested instructions Nos. 11 and 12. Requested instruction No. 11 told the jury, in effect, that, if they believed appellee was a maling'erer, he could not recover. There was no evidence introduced tending to show that appellee was a malingerer, so the instruction was abstract and properly refused. Instruction No. 12 told the jury, in effect, that, if appellee, during the period he claimed to be disabled, engaged in any business or performed any work for compensation, he could not recover. This request was properly refused because abstract. We find no evidence in the record tending to show that appellee engaged in any business or performed any work for compensation after June 1, 1931.

Lastly, appellant contends for a reversal of the judgment because, after the jury returned its verdict, it was sent back for further deliberation in order to make its verdict complete and definite. Before sending them back, the court reread the instructions to the jury. There was no error in doing this, but appellant contends that the verdict which was returned was formulated in accordance with a memorandum, found by the jury in the .jury room upon its return for further deliberation, which had been prepared by one of the attorneys for appellee, and that this memorandum influenced the jury in returning the verdict. The similarity between the memorandum and the verdict was striking. Some of the exact language of the memorandum appeared in the verdict as returned. The attorney for appellee admitted that the memorandum was in his handwriting, but stated that he had prepared it for use in the trial of the cause and did not know how it reached the jury room unless it was taken into the jury room by some one when he dropped his papers out of his brief case. One of the attorneys for appellant admitted in the course of the trial that, if appellee was entitled to recover anything, he was entitled to recover the monthly payments provided in the policies from June 1, 1931, to the date of the trial. According to the second verdict, this is the amount that was recovered in addition to the premiums which were paid after that date, and this is all that was shown by the memorandum, so we cannot see how any harm or prejudice resulted to appellant on account of the memorandum.

No error appearing, the judgment is affirmed.


author: McHaney, J.

text:
    McCarley v. Carter.
    4-2972
    Opinion delivered April 10, 1933.

      H. G. Wade, for appellant.

      Thos. W. Hardy and R. H. Little, for appellee.
   McHaney, J.

This suit was instituted by appellant and two of the heirs of J. B. Barnes, deceased, against the other heirs of said Barnes to partition 147 acres of land owned by him in his lifetime, and which descended on his death about 15 years ago to his widow for life and then to the heirs in fee. Ola Carter, wife of Will Carter, was one of said heirs, and on March 7, 1928, she executed a will to her husband, Will Carter, conveying “all interest I now own or might own at the time of my death in the following described lands,” then describing the same lands sought to be partitioned. The will as probated then contained this clause: “I do this, not forgetting my child, Martha Francis.” The will was signed by her and properly witnessed. Thereafter Ola Carter died on August 14, 1928, leaving surviving her one child, a daughter named Martha Francis as her sole heir at law, and her husband, Will Carter. The widow of J. B. Barnes died February 14, 1932, which terminated the life estate in the lands sought to be partitioned. The will of Ola Carter above mentioned was not offered for probate until February 4, 1930, although in the -possession of Will Carter from the date of the death of his wife, Ola, on August 14, 1928, but on February 4, 1930, it was admitted to probate. On the same date, February 4, 1930, Will Carter executed and delivered to appellant his warranty deed to an undivided one-seventh interest in said lands for a consideration recited in the deed of $10, but actually $300 as testified to by appellant and Carter. The trial court found that Will Carter acquired no interest in the land under the will of his wife for the reason that the clause therein that, “I do this not forgetting my child Martha Francis” was not in the will of Ola Carter at the time of her death, but was a forgery and a fraud practiced on the probate court in procuring its judgment, and that as to said child Ola Carter died intestate, not having been mentioned in her will; and that appellant acquired no title to said land by reason of the deed to him by Carter. Decree was accordingly entered striking from the will the above mentioned clause and canceling the deed from Carter to appellant, and dismissing his complaint for want of equity. Partition was ordered on the complaint of another plaintiff and commissioners were appointed for this purpose. They were directed to divide the land among the heirs, having due regard to quantity and quality, make their report to the court, and added that, “The commissioners will not designate the tract to be given to any particular tenant in common.” There is here both an appeal and a cross appeal by appellees from the order last quoted.

Appellant demurred to the answer of Martha Francis Carter, by her guardian ad litem, alleging that the clause-in the will mentioning her was a forgery, and that therefore appellant acquired no title to the land. The court overxmled the demurrer, and this is assigned as ex'ror. It is argued that the defexxse to the action involved a collateral attack on the judgment of the probate court, and that the chancery court was without jurisdiction to annul the judgment of the probate court, except for fraud practiced upon the court in the procurement of the judgment. We think a sufficient answer to this proposition is that it was not sought to set aside the will as a whole or to anxiul the judgment of the court admitting it to probate. It is admitted that a valid will was executed by Ola Carter. Only oxxe clause or sexitexxce ixi the will is attacked. A will may be valid in part and invalid in part. Hyatt v. Wroten, 184 Ark. 847, 43 S. W. (2d) 726. Courts of equity have jurisdiction of partition suits, axxd necessarily must determine what interest or share each claimant has, if any, in axxd to the property sought to be partitioned. Walker v. Eller, 178 Ark. 183, 10 S. W. (2d) 14. The fact that a will has been admitted to probate.does not preclude inquiry by another court, having jurisdiction of the subject-matter axid the parties, ixxto the rights of the parties under the will. This view of the matter makes it unnecessary to determine whether a fraud was practiced on the probate court. The decree of the court struck out the clause in the will: “I do this xxot forgetting my child, Martha Francis,” and left the will valid in all other respects. The court properly overruled the demurrer.

It is next argued that the court erred in holding that the above clause in the will was a forgery, that is, that the evidence is insufficient to support the court’s finding in this regard. We canxiot agree with appellaxit, nor do we review the evidence in detail. The lawyer who drew the will refused to testify that it was or was not in the will when he prepared it. Another lawyer testified positively that Carter brought the will to him after the death of Mrs. Carter to obtain advice as to his rights under it, and that clause was not in the will at that time. The clause shows to have been typewritten over an erasure and is not in line with that part immediately preceding it, being a little lower. The time it was kept and not probated after the death of Mrs. Carter is another circumstance to be considered. We think the preponderance of the evidence supports the court’s finding of forgery.

It is also insisted that the court erred in canceling the deed from Carter to appellant, for the reason that under act 149 of 1925, p. 441, if Ola Carter died intestate, her husband was entitled to a life estate in one-third of her real property. That act so provides, but Ola Carter did not die intestate. She left a valid will. The fact that it was ineffectual to convey the land mentioned does not destroy the will. She died intestate as to her child Martha Francis, but not as to any one else.

Nor can we sustain appellant in his contention that he is an innocent purchaser. This court held in Bird v. Jones, 37 Ark. 195, that one purchasing land from a person who obtained his title b}^ forgery cannot be treated as an innocent purchaser.

The court should have directed the commissioners to assign to each heir his respective share or interest in said land. Section 8104, Crawford & Moses’ Digest.

Affirmed on appeal and reversed and remanded with directions to direct the commissioners to assign each heir his respective interest on cross appeal.

Smith, J., concurs; Kirby, J., dissents.


text:
    Whitted v. State.
    Crim. 3833
    Opinion delivered April 10, 1933.

      A. M. Bradford and S. S. Hargraves, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   McHaney, J.

Appellants were indicted charged with robbery of the Eice Growers’ Bank, of Wheatley, Arkansas, and in a separate indictment were charged with burglary in that, on the same day they were charged with the robbery, “a certain house there situated and being used and possessed by the Eice Growers’ Bank, a corporation, feloniously did break and enter, with the felonious and burglarious intent then and there to commit the crime of robbery, ’ ’ etc. They were tried and acquitted of the crime of robbery. Later they were put on trial'under the indictment for burglary, whereupon they filed a plea of former acquittal on the charge of robbery in bar of the action. The State demurred to the plea, which was sustained by the court, and they went to trial on a plea of not guilty, were convicted and sentenced to two years in the penitentiary.

The only question presented by this appeal is one of law, whether the plea of former acquittal, or former jeopardy, should have been sustained.

Under § 3016, Crawford & Moses’ Digest, the offenses of robbery and burglary may be charged in one indictment, and the pleader in this case might have drawn one indictment of two counts so charging appellants. Burglary is defined by act 67, Acts 1927, p. 69, § 2, as follows: “Burglary is the unlawful entering a house, tenement, railway car or other building, boat, vessel or water craft with the intent to commit a felony.” Whereas “robbery is the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.” Section 2410, Crawford & Moses’ Digest. It will be seen from these definitions that the offenses are entirely distinct and separate. A person might be guilty of robbing a bank without being guilty of burglary, and also he might unlawfully enter a bank building with the intent to rob the bank, and still not be guilty of robbery. The rule is thus stated in 16 C. J. 272: “On the other hand, there are many adjudications to the effect that, if two offenses grow out of the same transaction, and such offenses are severable and distinct, a prosecution for one will not bar a prosecution for the other. Thus a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or a conviction under either statute does not exempt defendant from prosecution and punishment under the other. ” Our own case of Fox v. State, 50 Ark. 528, 8 S. W. 836, is cited to support the text. In that case the court held that a plea of an acquittal on a charge of robbing one Everidge was a bar to a prosecution on another indictment for the false imprisonment of Everidge, for the reason that both indictments referred to the same assault on Everidge, and, having been acquitted of robbery, he could not be convicted of false imprisonment, which is a species of aggravated assault without again being tried for the simple assault of which he was acquitted, and which .was embraced in the charge of robbery. In that case, Judge Cockrill, speaking for the court, said: “Where one unlawful act operates on several objects, there may be several offenses committed and so several prosecutions for the same criminal transaction, and an acquittal or conviction for one such offense will not bar a prosecution for the other” — citing cases. “But where there is but one object, and each offense charged is a degree or an essential ingredient of the other, as in this case, there can be but one prosecution.” Also in 16 C. J. 273, it is said: “Among other illustrations, in the following cases a conviction or an acquittal of the crime first enumerated was held no bar to a prosecution for that coupled with it, although both were involved in the same transaction; robbery and burglary in the same transaction; burglary and receiving stolen goods; embezzlement and false pretenses.” See also Copenhave v. State, 15 Ga. 264; People v. Snyder, 74 Cal. App. 138, 239 Pac. 705; People v. Brain, 75 Cal. App. 109, 241 Pac. 913.

This court has many times held that a plea of former acquittal will be denied unless- it affirmatively appears that the -charge in the case where the plea is interposed is the same offense as that for which the defendant has already been acquitted. State v. Blahut, 48 Ark. 34, 2 S. W. 190; Evans v. State, 54 Ark. 227, 15 S. W. 360; Turner v. State, 130 Ark. 48, 196 S. W. 477. Since, as we have already seen, the offenses charged against appellants were separate and distinct offenses, defined by separate and distinct statutes, and not dependent upon the same evidence to support conviction, the plea of former acquittal is not good, and was properly denied.

Affirmed.


text:
    Futrall v. Bowen.
    4-2946
    Opinion delivered April 17, 1933.

      Harry T. Wooldridge, for appellant.

      Coleman & Gantt, for appellee.
   Smith, J.

Robert Bowen, who is a farmer and operates a gin at Altheimer, purchased a Ford car from F. G. Smart Motor Company, of Pine Bluff, and executed a note for $270, with interest at 8 per cent., covering the amount of. purchase money unpaid in cash. The note was transferred by the motor company to the National Bank of Arkansas in Pine Bluff, which later became insolvent and was placed in the hands of a receiver, who sent Bowen a notice just before the maturity of the note that there would be due $279.95 for principal and interest on November 1,1930, the maturity date. Immediately upon receipt of this notice, Bowen drew a check on the Bank of Altheimer, at Altheimer, for the amount stated in the notice, and made notation on the check, reading: “Bal. note Ford auto.” Bowen sent this check, not to the bank holding the note, but to the motor company, and Miss Boston, its cashier, presented the check to the bank in payment of the note which Bowen had made and the motor company had indorsed. The check was presented to Frank Boone, who was the receiver’s assistant. Boone discovered that the check had not been drawn for a sufficient amount, and so advised Miss Boston. His testimony as to the circumstances under which the check was delivered was as follows: “A. Miss Boston, as I said before, brought the check up there, and I told her it was lacking $10 being enough to pay the note, and that I would have to have the additional $10. That I couldn’t use the check because it marked to indicate that it was payment in full of the note. At that time I told her, I ask her if she rather, or if she wanted me to write to Mr. Bowen or if she would, and as I remember she said she would get another $10 and bring it to me. Relying on that, I just put the check away and waited for the $10 and forgot all about it, to tell the truth.”

Thereafter Miss Boston dictated a letter dated November 3, 1930, reading as follows: “We are in receipt of your check in the amount of $279.95 to cover note due November 1st amounting to $270 and $9.95 to apply on the interest.

“The bank advised us this morning that they made a mistake of $10 in figuring the interest on this note, as it should have been $19.95 instead of $9.95.
‘“Please let us have your check for $1.0 by return mail and we will forward you your canceled note.”

Miss Boston had quit the service of the motor company and was residing in Texas at the time of the trial and did not testify, but Miss Cox, who was employed as a stenographer by the motor company, testified that the letter was dictated by Miss Boston to her, and by her typewritten, and that she mailed the letter to Bowen.

The $10 was never paid, and the bank made no attempt to cash the check, but retained possession of it, and on November 17, 1930, the bank upon which it was drawn failed to open its doors.

Bowen testified that he received the notice during the ginning season, and that he was employed about his gin from 4 a. m. until late at night, and that he stopped work upon receipt of the notice only long enough to write a check, which he pinned to the notice and mailed both to the motor company without writing a letter. He did not know any mistake had been made in calculating the interest. At no time for two months prior to the closing of the bank on which the check was drawn was his deposit less than $940, and the check would have been paid upon demand. This bank remained open through Saturday, November 15, but failed to open on Monday, November 17. When asked if he had any recollection of having received the letter set out above from the motor company, Bowen answered, “No, sir, not that I know of,’’ and when asked, “Are you prepared to say that you did not receive the letter?” answered, “No, sir; I wouldn’t say positively I did not. I don’t know anything about it.” Witness assumed that his note had been paid, and he did not have any notice from the receiver of the National Bank of Arkansas that there was any balance due on the note, and he testified further that “I never dreamed that the check had not gone through until the Bank of Altheimer closed,” and a representative of the National Bank had been to see him about paying the note.

It was shown that Bowen had on deposit in the Bank of Altheimer at the time it closed its doors the sum of $1,234.33, but it was shown also that he was indebted to that bank in the sum of $6,000, evidenced by two notes for $3,000 each, and this deposit was credited upon one of the notes when the bank closed. Bowen testified that he had negotiated a settlement of his liability to the Altheimer bank, which was unaffected by the unpaid check, this settlement resulting from the conclusion of the liquidating ag’ent for the Altheimer bank that it was more advantageous to the bank than a suit would be, which would force Bowen into bankruptcy, and that he was therefore damaged to the extent of the face of the check.

It was the opinion of the trial court, in which a majority of this court concurs, that the receiver of the National Bank should have collected the check in due course, and that, had any diligence been employed in this respect, the check would have been paid before the bank upon which it was drawn had closed its doors.

It is provided by § 7952, Crawford & Moses’ Digest, that “a check must be presented for payment within a reasonable time after its issue or the drawer will be discharg’ed from liability thereon to the extent of the loss caused by the delay.”

We had occasion to consider, in the recent case of Federal Land Bank of St. Louis v. Goodman, 173 Ark. 489, 292 S. W. 659, what was a reasonable time, for presentation of a check for payment, and, upon the authority of that case, and under the rule there announced, the check in the instant case was held for more than a reasonable time, indeed, it was never presented, and the delay resulted in the failure to collect it and thereby to pay the note in satisfaction of which it had been drawn.

The majority are of the opinion that the court below, sitting, by consent, as a jury, was warranted in drawing the inference from the testimony in the case that there was no direction to the National Bank, given either by the motor company, and certainly not by Bowen, to hold the check until the additional $10 had been paid, and that the bank should have collected the check in the usual course, and that the neglect of its receiver had resulted in the failure to make the collection which should have been made.

The writer and Mr. Justice McHaney do not concur in that view.

The judgment of the court below must therefore be affirmed, and it is so ordered.