text:
    Peppers v. Pennsylvania Door & Sash Company.
    Opinion delivered June 21, 1926.
    1. Continuance — absence of .party. — -A continuance was properly denied upon a showing that defendant was an important witness, and was absent attending to important business of an undisclosed character.
    2. Continuance — failure to produce document. — Failure of plaintiff to produce an original document pursuant to notice held not a 'sufficient reason for postponing the trial when defendant’s coun- . sel knew that such document had not been produced, and a copy was available.
    3. Contracts — what law governs. — The law of the State in which a contract is to be performed governs in its construction and in the determination of the rights and liabilities of- the parties.
    4.' Corporations — liability of stockholders. — Under Const. Cal. art. 12, § 3, as construed by the Supreme Court of that State, a stockholder is primarily liable for proportionate share of corporate liabilities, and a creditor need not pursue the cqrporation before suing a stockholder, notwithstanding the demand is for unliquidated damages fox breach of a contract.
    5. Pleading — admission by failure to deny. — Failure to deny allegations of the complaint is an admission of their truth.
    6. Evidence — contents of stock book. — Testimony of the vice president and active manager of a corporation as to the number of shares therein owned 'by the president is competent as against , contention that such fact is to be shown only by the stock book.
    7. Sales — damages for breach. — In an action by a buyer for breach of a contract for the sale of lumber f. o. b. cars, the loading charges are proper element of damages.
    8. Sales — damages for breach. — The cost of surfacing lumber in excess of the contract price is a proper element of damage for breach of a sale contract, requiring the seller to surface lumber as directed.
    Appeal- from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.
    J. G. Sain, for appellant.

      B. B. Ivory and W. P. Feasel, for appellee.
   Smith, J.

Appellee brought this suit in the Howard Circuit Court against appellant, and for its cause of action alleged that, on the 16th day of April, 1921, the Pennsylvania Door & Sash Company, a Pennsylvania corporation, entered into a contract with the Peppers-Cotton Lumber Company, a California corporation engaged in the sawmill business, for the entire cut' of lumber No. 2 shop and better, white and sugar pine, for the season of 1921, estimated at 6,000,000 feet, and that the California corporation, hereinafter referred to as the lumber company, • breached this contract by failing to deliver the lumber contracted to be delivered. That T. H. Peppers was the president. and principal stockholder of the lumber company, and there was a prayer for damages against Peppers as a stockholder in the lumber company. There was a verdict and judgment for the plaintiff, and Peppers has appealed.

Although a citizen of California, Peppers was served with the summons while sojourning in this State, and he filed an' answer denying the material allegations of the complaint.

' When the cause came on for trial a motion for continuance was filed, and an exception was saved to the action .of the court, in overruling this motion. The ground of the motion was..that Peppers had left his home in California on February 18,1925, for the purpose of going to Chicago and New York and of returning to Nashville, where the case was pending, to be present at the trial, but that it was impossible for' him to be present, and that his presence was highly important to a proper presentation of his defense to the cause of action sued on. It was not shown, however, wherein it was'impossible for Peppers to be, present at the trial. There was no elemeat of surprise in the case, and- no unavoidable casualty of any kind was shown. So far as any showing was made, nothing appears except that Peppers had important business, of an undisclosed character, to which he preferred to attend rather than the trial, and there was therefore no error in overruling.the motion.for continuance. Trumbull v. Harris, 114 Ark. 493.

The contract which it is alleged-the lumber company breached was in writing, and contained specifications'- as to-.kind of lumber; dimensions, and prices, the' price's being f. o. b. Macdoel, California, the place where the mill was located. The lumber company entered, upon the performance of the contract, and made a -partial delivery of the-lumber contracted'for, when it ceased to make deliveries under the' contract, and l'ater' a receiver- Was appointed by the court in California^ who took over the assets'and affairs of the lumber company

There was served on counsél for plaintiff on,February 2, 1925, a written notice to produce the original’of a contract entered into between J. S. Kent, tie receiver of the lumber company, and.plaintiff, which was dated November 3, 1921. It does not appear from the notice what the provisions of the contract were nor the purpose for Which it was intended to be used, and its relevancy and materiality do not therefore appear. The attorney upon whom the notice was served was called as a witness, and'was examined concerning the failure to produce, the original contract as required by the notice. From’ the testimony of this witness it, appears that the' contract Was executed in triplicate, one copy of which was delivered to the plaintiff. This witness testified that he called upon the plaintiff company to produce, the contract, and he went through its papers looking for it without finding it, and had not notified counsél for Peppers of his failure to locate it, for the reason that counsel for Peppers, had stated that he would’prove the,contents of the contract if the original were not produced, and counsel for appellee consented that this be done.

If for any reason this contract was relevant and material, there was no reason why the deposition of the receiver, who was known to have a copy, could not have been taken. Moreover, a foundation was laid for the introduction of secondary evidence to prove the contents of this writing, and no objection was made to this being done; in fact, consent was given that this be done:

The failure to produce the original of this instrument does not appear to have been sufficient reason, for postponing the trial. Counsel, of course, knew the- contract had not been produced, and he should therefore have taken the deposition of the receiver, or should have offered testimony proving the contents of this instrument if, in fact, its contents were relevant and material.

It was insisted below, and the insistence is renewed here, that it was error to permit plaintiff to proceed with the suit against Peppers as a stockholder in the' lumber company before its claim was established and adjudicated in the State of California. In other words, it is insisted that, as it was not shown that the affairs of the lumber company had been settled, the suit against a stockholder was premature.

The contract which forms the basis of the suit was to be performed in California, and therefore the laws of that State govern in its construction and in the determinátion of the rights and liabilities of the parties thereto!

Section 3 of article 12 of the Constitution of California contains the following provisions: “Each stockholder of a corporation * * * shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock' or shares owned by him 'bears to the whole of the subscribed capital stock or shares of the corporation # *

This provision of the Constitution has been frequently construed by the Supreme Court of that State, and the construction by that court of the language quoted is, of course, binding on us. A number , of the earlier cases in that State are cited in the case of Chambers v. Farnham, 182 Cal. 191, 187 P. 732. It is the consistent holding of these cases that a stockholder, is primarily liable, and that a creditor is not required to, first pursue the cprporation before bringing .suit against the stockholder. See also Thomas v. Matthiessen, 232 U. S. 221, 34 S. Ct. 312; Lanigan v. North, 69 Ark. 62, 63 S. W. 62.

In the case of Western Pacific Ry. Co. v. Godfrey, 166 California 346, the plaintiff had made, a deposit in.a bank which failed. A receiver wa.s appointed, who took charge oí the- assets and affairs of the bank, and, while the receivership was pending and unsettled,, the depositor brought suit against a stockholder in the bank to enforce the proportionate liability of the stockholder under., the Constitution of that State. , It was held in that case (to quote a syllabus) that “the pendency of receivership proceedings against an insolvent banking-. corporation does not affect the right of its creditors to proceed against its stockholders, in the enforcement of their stockholder’s liability.”

In the case of Thomas v. Matthiessen, supra, Mr. Justice Holmes,, in construing the provision of the California Constitution quoted and the-section of.the,Civil Code relating thereto, said-: “This, means that, by force of the statute, if the corporation .incurs a debt within-.the jurisdiction, the stockholder is a party to it and joins in the contract in the proportion of his shares.”

It is'ipsisted that the provisions of the California Constitution and of- the Civil .Code of that State did .iiot apply to the demand here asserted,, for the reason, that this is an action to recover unliquidated damages, for the breach of a contract, the insistence being .that, the stockholder’s liability is limited to actions for debt and. does not extend to actions for unliquidated damages for breach of a contract.

We think counsel are mistaken in this contention. The case of Chambers v. Parnham, supra, was a suit in which the plaintiff claimed damages against a, corporation in which the defendant was a stockholder by reason of an alleged breach of a covenant contained in a lease to certain land for farming purposes delivered- by the corporation to the plaintiff. It was insisted, and the court held, that the suit to enforce the stockholder’s liar bility had not been commenced within the time prescribed by the Code of Civil Procedure of that State. But, while the cause of action sued on (a claim for damages.) was held to be barred by the statute of limitations, the opinion distinctly-recognized the right to'maintain a suit of that character; In the opinion by Chief Justice Angelotti it'was said: “Th e-liability of the corporation to'respond in damages for any failure to perform, the covenants contained- in its contract was' necessarily created--ór incurred by the- execution of the contract, notwithstanding that no right of action-could accrue until a-breach.”’ It was there, also said: “As said in Coulter Dry Goods Co. v. Wentworth, supra (see 171 Cal. 510, 153 Pan. 493), when the corporation made its contract with the plaintiffs, it incurred a liability for any breach of the contract which it might commit, and its stockholders were equally liable fot such breach. The stockholders who were such when the contract was made are-therefore hound under the Constitution, which holds them for the liability’ incurred by the corporatioh during the time that they were stockholders.’”

It is also insisted that the testimony did not show the amount of the capital stock owned by Peppers? and for this reason the judgment against him was excessive. There was offered in evidente a certified copy of the articles of incorporation of the lumber company, from which it appeared that the capital stock of that company was $1,000,000, and in the seventh section of these articles it was recited that the amount Of said capital stock which had been actually subscribed is $5, and the names of the five subscribers were given, each for one share of Stock at $1.

It appears, however, that the complaint contained the following allegation: “Plaintiff further alleges that the defendant T. H. Peppers was a large stockholder in the Peppers Cotton Lumber Company at the time the transactions complained of occurred, holding $400,000. par value of its stock, and the total subscribed stock of said corporation was $600,000.”

The answer admitted that the lumber company: had been declared a bankrupt, and denied that appellant owned any stock-therein in any amount, but did not'deny that the total, subscribed, stock of the lumber company at the time of the transaction between , the parties to the suit was $600,000. The undenied allegation that the'capital stock was $600,000 -is conclusive of • that -question. Besides, the'undisputed-testimony shows that the dumber company was in the-possessionof assets'of very great value, which could not, of • course,- have been acquired with $5 of capital. Moreover, the deposition, of C.. A-. Cotton, who -was a vice-president and active manager of the lumber company-,: was taken, and introduced * at the trial.. Cotton testified that, after the-charter was.issued, Peppers owned $300,000 of the capital stock; and that he later bought from his father $100,000 of the -stock which had been issued to Peppers’ father. The testimony of Cotton, who testified-that Peppers had himself stated to witness the. amount of stock owned by Peppers, placed the ownership*of all this -stock as- of the 6th,.7th or 8th of September, 1921, which was the year during which ;the contract-was to be-performed.

Appellant,insists that this testimony was not-competent to proye the amount, of stock owned by Peppers, as that fact could be shown only by- the stock-book of the lumber company.

The case of Shean v. Cook, 180 Cal. 92, 179 P. 185, is against this contention, it being there held that it is the actual, and not the ostensible, owner of the stock who is liable. In the case just cited the first syllabus reads: “A stockholder of a corporation, within the meaning of article 12, § 3, of the Constitution, declaring stockholders’ liability, is one who owns shares in a corporation; which has a capital-stock, being so defined, in.§ 298 of the Civil Code, which was in effect at the, time of .the-adoption of the constitutional provision, and the Legislature, in providing in §'322 of the Civil Code that the term ‘stockholder’ applies not only to such person as appears upon the hooks of the corporation to be such, but also to every equitable owner of stock, although' the same appears on the books in'the name of another #'*'

We cbhcliide therefore that the jury was warranted in- finding that- appellant owned, not ' one share, but $400,000 of the capital stock,'which was $600,000, and Was therefore' liable ' for tWo-thirds' of' the damages' which appellee was shown to 'have sustained^

It is finally insisted for the reversal of the' judgment of the Court below that the testimony does not "sustáin the verdict for the amount of damage’s assessed by the jury.

The lumber company contracted to deliver to dppéllee ‘ ‘thé entire' Cut of lumber two shop and better, White And sugar " pine," for the season 1921, estimated at- six million feet.” Mr: 'Cotton; who, As We have, said, was a vice-president and'Active'manager of the lumber company,'testified concerning the output of the mill, and his testimony fully supports- the finding that the Outpixt would' have equaled or' exceeded the estimate contained in the contract if the lümbér Company had' operated the mill as it had contracted tó do. ’

The testimony on the part of appellee showed a’rapid rise in the price of lumber, and, according to the testimony offered on behalf of appellee in this'respect, a loss of $&0,000 wAs sustained by the non-delivery of the lumber. This is a much larger sum than was found by the jury, the verdict returned being for the sum of $25,012. At any rate, we think the testimony supports the finding for the damages.returned.

Error wAs assigned in submitting to the jury as an element of damages certain loading charges; but there was no error in this, as the contract, after stating the prices to be paid, specifies the “prices f. o. b. cars, Macdoel, California, net. ” If appellee was compelled to incur an expen se which the contract required the lumber company to discharge, the payment of this expense was a proper element of damage to be considered by the jury.

What we have jnst said .about loading lumber is equally applicable to the assignment of error in regard to surfacing certain portions of the himber. The contract gave appellee' the right to direct that certain parts of the lumber be surfaced by the lumber company, for which an additional price of $5 per thousand was to be páid. This service was not performed by the" lumber company, but was done by appellee at a necessary cost to it of moré than' $5 per thousand. This excess was therefore also'a recoverable element of damage.

Upon a consideration of the whole record we find no'reversible error, and the judgment of the court below is' affirmed. " -


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Rose v. Hall.
    Opinion delivered June 21, 1926.
    1. Vendor and purchaser — assumption op contract by assignee. —Evidence held to show substitution, by consent of all parties, of the purchaser’s assignee in lieu of the purchaser, on the terms of the original contract.
    2. Usury — sale op land. — Usury cannot be -based upon the terms of deferred, payments in the sale of land, as the parties have .a right to agree upon the price to be paid and the manner of payment.
    3. Payments — mode op making partial payments. — Under Crawford & Moses’ Dig.; §§ 7357, 7358, monthly partial payments exceeding interest to date are to be applied first to interest and .- balance on principal.
    Appeal from Miller Chancery Court; C. E. Johnson, Chancellor;
    reversed in part.

      William H. Arnold, William H. Arnold, Jr., and David G: Arnold, id? appellant.

      B. E. Carter and J. M. Garter, for appellee.
   Smith, J.

Appellee Sarah Hall, who was one of'the plaintiffs below, alleged as her cause of action the following facts: On April 9, 1920, appellant Rose, who was the defendant below, owned a certain lot in the city of Texarkana, Arkansas, which she proposed to buy from the defendant in person for the sum of $1,200, bnt the lot was shown to her by.one W. W. Shuptrine, acting as agent for the defendant Rose. She had agreed with Rose to .pay $1,200 for the lot, of which $100 was to be paid in cash and the balance in monthly payments of $20.20 each. She was' shown the property by Shuptrine, and, after seeing it,, paid him the $100 cash payment. Shuptrine brought back and gave to plaintiff Sarah Hall a book of the kind used by persons who had bought stock in or had borrowed money from the Citizens’ Building and Loan Association of Texarkana, Ark., but the name, of the building and loan association had been erased from the front page of the book and, instead thereof, the name of Sarah Hall had been written, so that it then read ‘ ‘ Sarah Hall, of Texarkana, in account with W. W. Shuptrine. ’ ’ The pages of the book were so ruled as to show monthly payments to be made by investors or borrowers, a line being devoted to each month, and space was left for the person who received the payments to write his name.

The name of the building and loan association was printed oh the cover of the book, but it- was erased and that of Shuptrine written in its place, so that, when delivered to plaintiff Sarah Hall it read: “W. W. ’Shuptrine, in account with Sarah Hall,”,and on the first page within the cover appeared this memoranda:

“$1,150 bal. April,. 1920 In account with Sarah Hall Payments on house & lot No. 606 Laurel St., City.
$1,250.00
“By cash................................................;........... 100.00
$1,150.00

Plaintiff alleged she had; been placed in possession of the property upon the delivery of the book to her by Shuptrine, and that she had since continuously remained in possession,.and had made.all her payments regularly, when she was advised that defendant Rose had obtained a loan upon this lot as security from the building and loan association, whereupon she tendered the balancé/due under her contract, and prayed that Rose be required to'execute a deed to one W. C-.'Howell, to whom she had assigned her contract of purchase.

A disclaimer of any interest in the lot was filed by the building and loan association.

Rose filed an- answer wherein he denied that Shuptrine was,his agent-or had acted for Rim in-the-contract which Re had made with- Sarah Hall. He denied that he had contracted -to-sell the- lot to plaintiff - Sarah Hall, but alleged the fact to be that he- had contracted to sell it to W.- W. Shuptrine under -a contract which contained the following provision: “That for and in consideration of the sum of $1,200 to be paid,- $100 cash in hand, the receipt of which is' hereby acknowledged, and the balance of .$1,100.to be paid $20.20 per-month in accordance with the rules and regulations of the Texarkana Building & Loan Association of Texarkana, Arkansas, Andrew Rose,, party of the first part, agrees to sell to W. W. Shuptrine, party of the second part, the following described property. ’ ’ This contract was dated April 8, 1920.

It was alleged that a'sale “in accordance with the rules and regulations of the Texarkana Building'& Loan-Association”- would require 76 monthly payments ’of $20.20 each, and it was alleged that plaintiff Sarah Hall had failed'and refused to make the last 22 of these payments, wherefore defendant prayed that he have judgment for the-amount of these 22 payments,' aggregating- $440.40, or, in default- thereof, that the contract be canceled-and- possession of the'lot restored to him and'- that payments made be treated as refit:

Sarah Hall testified that, when the book containing the' notation' set out above was delivered to her, it Appeared that the price of the lot to her had been increased $50, and she inquired about and' protested against the increase, whereupon Shuptrine stated to her that, as he had to make the collections of the monthly-payments, he had added $50 to pay himself for his trouble.

Sarah Hall had a written contract with Shuptrine, and, its recitals in regard to the payment of the purchase price read as follows: “That for and. in consideration of the sum of $1,250, to be paid in monthly installments as follows: $20.20 per month, same due and payable on the 25th day of each month, first payment due April 25, 1920, W. W. Shuptrine, party of t,he. first, part, hereby- agrees to sell to Sarah Hall, party of the second part, the following described property.” . This' contract was dated-April 9,-1920.-

It will be observed that this contract contabas no provision in regard to the payment of interest, and does, not contain the provision found in the contract between Rose and Shuptrine that the payment shall be made “in accordance with the rules and regulations of the Texarkana Building & Loan Association.

After making the initial cash payment of $100 to Shuptrine, which was credited in the book he gave her, she made six -monthly payments to him of $20.20 each, the receipt of which were evidenced by Shuptrine’s signature in the space assigned for that purpose.

Sarah Hall testified that, when she made her sixth payment, Shuptrine stated that he would no longer make .the collections, but that future payments should be made .direct to Rose, and that Shuptrine carried her to Rose’s office, where he said: “Here’s Sarah Hall, Mr. Rose. I brought her down to turn her over to the office, She’s a good woman, and makes her payments regularly as they come due,” and that Mr. Rose said: “Very well,” anfi she thereafter continued to make the payments regularly each month either to Rose personally or to some one in his office, until she had. made 48 payments to Rose, making a total of 54 payments altogether.

Rose testified that he had no recollection of the conversation detailed above, and' that Shuptrine was never .his agent, and that' he had contracted to sell the lot to Shuptrine, and not to plaintiff Sarah Hall, and that, .under the terms of his contract, Shuptrine was required to make 76 payments of $20.20 each to discharge the contract.

Bose was the secretary of the building and loan association, and he testified that the association sold invéstment stock and made loans on property, and that when á loan of $1,200 was made the borrower also bought stock in the building and loan association áñd was required to pay $11 per month for a period of-76 months, and that the interest on these payments,' calculated at 10' per cent., would, at the expiration of the 76 months, equal $1,200. This result was arrived at'in the following manner: The payment of $11 per month .for 76 months is $836, and the interest on this' amount is -calculated for 38 months, which is one-half the time required to mature the stock, the interest on the total sum paid during the 76 months' being equivalent to the interest on the. entire sum paid for one-half the time required to make the monthly payments.' But, where a loan was made for $1,100, the borrower was required to subscribe for stock, upon the maturity of which the loan was discharged, and that 76 monthly payment of $20.20 each were ordinarily required to mature stock for $1,100 purchased against a loan of that amount.

The court below found that, by the receipt of the payments from Sarah Hall, Rose had ratified the contract of purchase between Sarah Hall and Shuptrine, and that this contract did not require the payment of interest, and, inasmuch as the payments had been promptly made, no interest could be charged, and that, as Sarah Hall'had made'54 payments of $20.20 e.ach, totaling $1,090.80, there was due under the contract only the sum of .$59.20. Upon this finding it was decreed that, upon the payment of the balance of $59.20, the title to the lot should be divested out of Bose and vested in Sarah Hall assignee. From this decree Bose has appealed.

The court below found that Sarah Hall should not be required to pay any interest, because her contract with Shuptrine did not exact the payment of. interest, and, as she made the payments promptly when due, there was no default which warranted a charge of interest. The court decreed, however, that Sarah Hall should make the payments required by the Shuptrine contract, that is, a balance of $1,150, and not the $1,100 called for in the contract between ' Rose and Shuptrine. This decree was rendered on the theory that Rose had ratified the contract between Shuptrine and Sarah Hall, and that the effect of this ratification was to substitute for the contract between Rose and Shuptrine the one made by Shuptrine with Sarah Hall.

Appellees further say that the transaction was not a loan, but a sale, and that the contract in accordance with which Sarah Hall should be required to settle contained no provision for the payment of the debt in accordance with the building and loan plan, and that, if the transactions were treated as a loan to be repaid according to the building and loan plan without the purchase of stock, —appellee Sarah Hah bought no stock — and 76 consecutive monthly payments of $20.20 each were required to mature the loan, the contract would be usurious, in that more than 10 per cent, interest would be exacted.

It is unquestioned that Sarah Hall made 54 consecutive monthly payments of $20.20 each, and these - were made in payment, of 'the purchase price of the lot. There were two contracts for the sale of the lot,'and Sarah Hall knew that the person from whom she contracted to buy was not the owner of the property. On the contrary, she knew that-Rose did own the lot. Shuptrine passed out of the transaction, but he did not do so until he had received six payments and had receipted for them in the books furnished by him to Sarah Hall, and the payments made to Shuptrine were paid- over by him to Rose. We think what was intended and the thing which was in fact done was to suilJstitute, by consent of all parties concerned, Sarah Hall as the purchaser from Rose, instead of from Shuptrine. In other words, the new arrangement was that Sarah Hall should make the payments which Shuptrine had agreed to make, and, having made them, should thereby acquire the right to have a deed made direct to.her or to her assignee.

We do not find anything in the testimony to support the finding that Bose agreed to forego his claim of interest on the purchase price of the lot, or that he has.estopped himself from claiming interest. The monthly payments were noted in the book furnished Sarah Hall by Shuptrine, but she had begun to make these payments under her contract with Shuptrine, and when Shuptrine turned her over to the office, as she expressed it, we think there was a mere substitution of Sarah Hall as the purchaser from Bose, instead of Shuptrine, and- that equity will be. done by permitting her to complete the payments which Shuptrine had begun to make.

We think there is no usury in the transaction, because no loan of money was made. The transaction was the sale of a lot, and the parties had the right to agree on the price to -be paid and the manner, of payment. The manner specified was according to the building and loan plan, and the testimony shows that, when a loan was made, the usual and customary interest charged by the building and loan association was 10 per cent., and that this rate was always charged when there was no special agreement to the contrary. The testimony also showed that a loan by the building and loan association was always accompanied by a sale of stock, and that a loan amounting to $1,100 would contemplate monthly payments of $20.20 each. This was the amount of each of the payments made by Sarah Hall, and the building and loan custom required these payments to be monthly, and they were made monthly.

We conclude therefore that the sum which Sarah Hall should pay is not the amount named in her contract with Shuptrine, which was $1,250, but the price which Bose agreed to take from Shuptrine, which was $1,200, of which $100 was cash in hand paid, leaving a balance of $1,100, and that this sum was payable in monthly payments of $20.20 each. These payments were to be made, and were made, monthly, and, as - they exceeded the interest on the purchase money for a month, the payments must be credited as provided by the statute governing partial payments. Sections 7357-7358, C. & M. Digest. But, when thus credited, 76 payments were not required to discharge the debt. 74 payments would have sufficed for this purpose, and, upon making the 74th payment, a balance of 80 cents would remain unpaid. Appellee Sarah Hall did not make 74 payments; the number made was 54, and these 54 payments, credited as the statute provides they should be, left a balance due, when the 54th payment was made, of $351.39. This therefore was the balance due whén appellee Sarah Hall, demanded her deed, and is the amount for which Eose should have judgment.

The decree of the court below is therefore reversed in so far as it is_ found that the sum due appellant is only $59.20, and the cause will be remanded with directions to enter a decree in Eose’s favor for $35L39, with interest from the date of the 54th payment, and upon payment of this balance the provisions of the original decree for a deed to appellee Sarah Hall’s assignee will be enforced.


author: Humphreys, J. McCulloch, C. J.,

text:
    Stanley v. State.
    Opinion delivered June 21, 1926.
    1.. Witnesses — impeachment on cross-examination.. — In a prosecution for murder, it was error to compel defendant on cross-examination to answer questions as to how many men he had previously shot, since such acts were not necessarily crimes.
    2. Witnesses — impeachment on cross-examination.. — Witnesses, including accused, may be impeached on cross-examination by drawing out the fact that they have committed other crimes and . immoralities, but they cannot be asked about a mere accusation or indictment preferred against them.
    Appeal from Pulaski Circuit Court, First Division; Jolm W. Wade, Judge;
    reversed.

      Rogers & Robinson, for appellant.-

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Pulaski County, First Division, for the crime of murder in the second degree by killing Boy Arrington. He was subsequently tried and convicted of involuntary manslaughter, and was adjudged to serve a term of eleven months in the State Penitentiary as a punishment therefor, from which is this appeal.

Appellant seeks to reverse the judgment on the sole ground that the trial court erred in compelling him, over his objection and exception, to answer the following questions propounded by the prosecuting attorney while cross-examining him, to-wit:

“Q. How many men did.you shoot before that? Q. Tell the jury how many men you shot before that. A. I have shot two men before this. ”

These questions were asked for the purpose of affecting the credibility of appellant, upon the theory that his testimony might be discredited or impeached by' specific acts committed by him in the past which may have been crimes, but not necessarily so. This court has adopted the rule that witnesses, including the accused, may be impeached on cross-examination by drawing out the fact that they have committed other crimes and immoralities of various kinds. Hollingsworth v. State, 53 Ark. 387; Shinn v. State, 150 Ark. 215; Bullen v. State, 156 Ark. 148; Lytle v. State, 163 Ark. 129. Although committed to this liberal rule for impeaching:witnesses, including the accused, this court has said that the rule has its limitations, one being that the witness cannot be asked about a mere accusation or an indictment preferred against him for the purpose of attacking his credibility, because a mere accusation or indictment raises no legal presumption of guilt. Jordan v. State, 165 Ark. 502. We think the same reason should apply to questions touching specific acts of a witness which are not necessarily crimes. A homicide is not necessarily a crime. The killing may have been an accident or entirely justifiable. .

The court erred in requiring appellant to answer the questions propounded by. the prosecuting attorney relative to shooting other men prior to shooting the deceased.

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

McCulloch, C. J.,

(dissenting). The question propounded to appellant, while on the witness stand, was in no sense a mere accusation, nor'did the answer carry any such implication. The answer was a direct statement of the fact that the witness -had theretofore committed homicide — an act which might or might not involve moral turpitude, according to the circumstances of the incident. Mere proof of the killing of a human being creates a presumption of guilt of some degree of crime (0. & M. Dig., § 2342) and casts the burden on the accused to show circumstances of mitigation or justification.

In the present case the appellant should have been allowed, if he requested it, to narrate the particular circumstances under which he had “shot two men,” so as to remove the apparent stain on his character and- credibility; but it was proper, I think, in the first instance, to permit the State to interrogate the witness concerning his having committed a deed which, unexplained, would ■constitute á crime.

This court held in Bullen v. State, 156 Ark. 148, that, when a defendant in a murder case makes himself a witness in his own behalf, he may, on cross-examination, be interrogated as to his commission of other murders.

Mr. Justice Smith concurs in this dissent.


author: Humphreys, J.

text:
    American Southern Trust Company v. Martin.
    Opinion delivered June 21, 1926.
    1. Pleading — motion to strike. — Issues as to whether notes and a mortgage sued on ¡belonged to plaintiff,, or whether they had been assigned to him-by his brother to hinder his creditors- from collecting their debts, held germane to foreclosure proceedings, as against a motion to strike an intervention from the pleadings.-
    2. Appeal and error — motion to strike intervention — review op ruling. — An order sustaining a motion to strike out an intervention may be reviewed without a bill of exceptions where the motion attacked the sufficiency of the intervention on its face.
    3. Appeal and error — waiver op error. — Interveners contesting a mortgage foreclosure do not waive the right to review the decree by reason of the vice president of one of the. interveners ’ purchasing the land at the foreclosure sale as truste, in absence of, proof for whom he was acting. . •
    Appeal from Arkansas Chancery Court, Southern District; John M. Elliott, Chancellor;

    reversed.

      R. W. Wilson, Coleman & Gantt and Sam T:'S Tom Poe, for appellee.

      T. J. Moher and John L. Ingram, for appellee;
   Humphreys, J.

This suit was commenced in the chancery court of Arkansas County, Southern .District,, by . one of the appellees, F. E. Martin, against William Moll, W. F. Simmons and others, to foreclose a mortgage on certain real estate described therein, executed .on April 21, 1920, by W. F. Simmons and his wife,to the said William Moll, to secure three notes aggregating $12,000. It was alleged in the bill that the notes had been-assigned to F. E. Mártir, and that he was the owner of same by virtue of the assignment. It was also alleged that the Bank of Grillett claimed some right, title and. interest or claim to the land in question, and for that reason it was-made a phrty defendant to the suit.

The Bank of Grillett filed an answer denying. that-F. E. Martin was the owner of the notes and mortgage-, and a cross-bill alleging that J. H. Martin, his brother, was indebted to it in a large sum, and that,, in order to cover up this property and prevent said bank from collecting its debt, he had the notes assigned to F. E. Martin instead of himself. It was alleged that J. H. Martin had rendered himself execution-proof and apparently insolvent by transferring all of his real estate and other property, including these notes, to his near relatives.

At a subsequent date the American Bank of Comméree and Trust Company (American-Southern Trust Company) and the First National Bank of St. Louis, Missouri, filed an intervention alleging the assignment to the interveners by the Bank of Gillett of all the evidences of indebtedness upon which the Bank of Gillett based its cross-complaint. The cross-complaint of the Bank of Gillett was in the nature of a creditor’s bill against J. H. Martin, seeking to set aside a number of alleged fraudulent conveyances and to subject the notes secured by' said mortgage to the payment of the alleged indebtedness of J. II. Martin to the Bank of Gillett.

A motion was filed by F. E. Martin to strike the answer and cross-complaint of the Bank of Gillett as finally amended and the intervention filed by the American Bank of Commerce & Trust Company and the First National Bank of St. Louis from the files, for the alleged reason that the pleadings had not raised issues cognizable in the suit, but foreign to it.

Upon a hearing of the cause the court sustained a motion to strike from the files of the suit the pleadings of the Bank of Gillett, the American Bank of Commerce & Trust Company, and the First National Bank of St. Louis, upon the ground that the issues raised therein were not germane to and cognizable in the foreclosure suit. In other words, the court ruled, over the'objection and exception of appellants, that the pleadings filed by them failed to state a defense or a cause of action by way of cross-complaint to the foreclosure proceedings. After striking the pleadings aforesaid from the files the court rendered a decree foreclosing the mortgage against the land to satisfy the sum found due upon the notes, which totaled $14,373, including interest thereon. Pursuant to¡ the decree the commissioner sold the lands, at which sale W A. Hicks, trustee, became the purchaser for $13,700. The sale was confirmed by the court, and the commissioner executed a deed to W. A. Hicks, trustee, which was acknowledged and approved in open court. Several months thereafter appellants prayed an appeal to this court, which the clerk granted.

It is sought by this appeal to have the cause remanded with directions to reinstate appellants’ pleadings and to allow them to litigate their alleged right to have the proceeds from the sale of said land applied to the payment of the said indebtedness due by J. H. Martin to them.

Appellants contend for a reversal of that part of the decree striking their pleadings from the.files upon the ground that they did not-raise issues germane to and cognizable in the foreclosure proceeding. We agree with appellants in their contention that the pleadings sufficiently state a defense and a cause of action by way of cross-complaint to the right of appellee, F. E. Martin, to foreclose the mortgage for his individual 'benefit; The pleadings, as we understand them, tendered the issue of whether the notes and mortgage belonged to j; H. Martin of F. E. Martin, and the further issue of whether the notes and mortgage had been assigned to F. E. Martin for the purpose of covering them up so as to hinder the Bank of Grillett and its assignees from collecting the indebtedness which J. H. Martin owed them. These issues, were germane to and cognizable in the-foreclosure proceeding. The motion challenged the sufficiency of the pleadings on their face, and was in effect,a demurrer, and should have been treated as a demurrer by the court. The motion did not invoke collateral matter as á ground for striking the pleadings from the files.

Appellees suggest that the motion to strike appellant’s pleadings are not properly in the record and before us for consideration, 'because, after being stricken from the files, they were not brought into the record by a bill of exceptions. This result cannot be accomplished through a misnomer of a pleading. If the motion attacked the sufficiency of the pleadings on their face, it.was in effect a demurrer and not a motion to strike. It is said in 4 Corpus Juris, p. 117, that, “where a motion to strike out a pleading serves the purpose of a demurrer, it seems a ruling .thereon may be reviewed without a bill, of exceptions.” Óf course, if the motion had set up collateral matter as a ground for striking the pleadings and had not challenged the sufficiency of them, then it would have been, necessary to resort to a bill of exceptions to bring the pleadings thus stricken from the files back into the record. Floyd v. McDaniel, 36 Ark. 484.

Appellee suggests that the decree must be affirmed because its'validity was recognized by appellants’. purchase of the lands at the foreclosure sale and procurement of a confirmation of the deed executed by. the commissioner to them for the land. It is .true that one ,who accepts or secures a benefit under a decree thereby waives his right to have same reviewed by an appellate court, but the record in.the instant case fails to show that appellants purchased the land at the foreclosure sale.. It is true that 77. A. Hicks purchased same in the capacity of a trustee, but its Joes not appear for whom he was acting. We cannot indulge the ..presumption that he purchased it for appellants, simply because he is the vice-president of the American Bank of Commerce & Trust Company.

Appellees have suggested several other reasons why. the decree should be affirmed in ioto, which wev do not regard as sound.

On. account of the error indicated, that part of the decree is reversed striking out the pleadings of appellants, and the cause is remanded with directions to allow appellants, to ligitate their alleged rights, to the proceeds arising from the foreclosure sale.


text:
    First National Bank of Corning v. Polk.
    Opinion delivered June 21, 1926.
    1. Taxation — lien of' agent paying taxes. — Crawford &- Moses’ - Dig., § 10053, does not subrogate an agent paying, taxes on lands to the lien of the State, but only gives a lien to the agent against the owner.
    2. Taxation — agent’s lien — priority of mortgage. — The lien of a mortgagee, executed by the owners of land after the taxes thereon had been paid by an agent át the owner’s request, is superior to agent’s-lien provided by Crawford & Moses’ Dig., §10053.
    3. Appeal and error — conclusiveness of chancellor’s finding.— . A finding of fact of the chancellor -not clearly against the pre- * ,, ponder anee of the testimony will be sustained on appeal.:
    Appeal from Clay Chancery Court, Eastern District; J. M. Fiitrell, Chancellor;
    affirmed.

      Beloit Taylor, and W. E: Spence, for appellant.

      G. B. Oliver, Jr., for appelleé.
   Humphreys, J.

This is aii appeal from a'decree of the chancery court of Clay County, Eastern District, dismissing the cross-bill of appellant for the want of equity, filed in. a second foreclosure proceeding instituted by appellee against J. N, Moore and others. In the first foreclosure proceeding, appellee made appellant a party because J. N. Moore had executed a mortgage to appellant upon the lands mentioned in the mortgage, which he had theretofore executed to appellee, except the' north half of the northeast quarter of section 8, township ‘21 north, range 6 east:' In the first foreclosure'proceeding appellant prayé'd for a foreclosure of its mortgage also. After both appellant and appellee had obtained foreclosure decrees, it was ascertained that the land described above, which was embraced in appellee’s mortgage, had been sold for the taxes in 1919 to M. V. Diboeld, who'was in possession of same, claiming to be the owner thereof. J. N. Moore, the mortgagor, instituted a separate suit against M. Y. Diboeld to cancel the tax title. The instant or second foreclosure proceeding was brought for the purpose of collecting a part of the notes which were not due at the time the decrees were entered in thé first foreclosure proceeding. Appellant sought in its cross-bill to obtain a paramount lien for the taxes paid by it at the request of J. N. Moore upon a part'of the land covered by appellee’s mortgage and to obtain one-half of the e.ightyacre tract of land which M. V. Diboeld claimed under a tax purchase, or one-half the proceeds-which might be derived therefrom when sold under the foreclosure proceeding. Appellant alleged in its cross-bill that appellee’s mortgage was dated January 1, 1920, and that the taxes upon the lands described therein for the year 1919 had n.ot been paid, and that it paid taxes to the amount of $411 for said year, at the request of J, N-. Moorej upon certain lands embraced in appellee’s mortgage but not embraced in its own mortgage. It also alleged that it entered into a contract .with appellee to employ an attorney to assist his attorney in the prosecution of the suit instituted by J. N. Moore to cancel the ta^; title to the eighty-acre tract of land aforesaid held by M, V. Diboeld, in, consideration that, :if successful, they should divide said eighty-acre tract, or the proceeds therefrom, equally between them. These allegations in the cross-bill were controverted by appellee. These.issues were.submitted on testimony introduced by the respective parties, which resulted in a decree to the effect that appellant should take nothing on its cross-bill.

Appellant’s first contention for a reversal of ¡the decree is that the trial court erred in dismissing its claim for .taxes. It relies for a prior and paramount lien to the mortgage lien of appellee for the taxes paid by it upon .§ 10053 of Crawford & Moses’ Digest, which is as follows:

“Every attorney, agent, guardian, executor or administrator seized or having care of lands as aforesaid, who shall be put to any trouble or expense in listing or paying the' taxes on such lands, shall be allowed a reasonable compensation for the time spent, the expenses incurred and the money advanced as aforesaid’, which shall be deemed in all courts as a just charge against" the person for whose benefit the same shall have been advanced, and the same shall be preferred to all other debts, or claims, and be a lien on tbe real estate as. well as tbe personal estate of tbe person for whose benefit the same shall have'been advanced.”

It will be observed that the statute does not attempt to subrogate the agent paying the taxes at the request of the owner to the lien of the State, but only gives, a-l-ien. to the agent against the' owner. The taxes were 'paid by appellant at the request of J. N. Moore on April 10, 1920, which payment satisfied the lien of the State, Appellee’s mortgage was executed July 7, T920, and his lien was superior to that of appellant. The payment of the. taxes by appellant was just as if the taxes had been paid by J. N. Moqre, the owner of the land. Moore could not have claimed'a lien on account of the payment, of the taxes paramount to the mortgage lien of his own mortgagee.

, Appellant next contends for a reversal of the decree upon the ground that the court erred in finding from' the evidence that appellee had not entered into a .contract with appellant to divide the eighty-acre tract aforesaid, or the proceeds thereof, equally between them in case, the tax title thereto was canceled.

S- P. Lindsey, cashier of the appellant bank, testified upon this issue, in substance, as follows: That .appellee informed, him that he was going to bring a .suit to cancel the tax title of M. Y. Diboeld to the eighty-acre tract of land, and proposed to divide it equally between appellant and himself if appellant would employ, an attorney to assist his attorney in prosecuting the suit to .a successful issue; that he accepted the proposition, and employed F. Gr. Taylor to assist appellee’s attorney, Gr. B. Oliver, in the prosecution of the suit,, for which, he paid him, a fee of $50. , ...

F. Gr. Taylor testified, in substance,-as follows; that he was employed by appellant to assist. Q-. B. Oliver in .a suit brought by appellee in the name of J. N. Moore.to cancel a tax title held by M. B. Diboeld to the eighty-acre tract of land in question, and that, pursuant to the employment, he referred Gr. B. Oliver to the case of Earle v. Harris, 121 Ark. 621, which, in his opinion, conclusively settled the issue involved in the suit for the cancellation of the tax title in favor of .appellee; that he met Mr! Oliver in consultation several times," but that he'took no part in looking up the record upon which the tax title was based; that he tendered a bill of $50 to áppéllant-for-thisservice,which.it paid.

G. B. Oliver was introduced as’a witness’ by appellee-and testified, in substance, as follows: that he advise'd appellee to propose to appellant to employ an attorney to assist him in the suit to cancel the tax title claimed' by M. Y. Diboeld to the eighty-acre tract in question; that his reason-for making, the suggestion was that appellee-had a mortgage- on all. of Moore’s land, including the Diboeld tract/and that appellant had a mortgage on apart of- the saime'land not "including .the Diboeld tract; that/ under these circumstances, appellant.would have a right to mar - ' shal the assets and request, that appellee be first requested to exhaust'the land that appellant did" not' have a mortgage' on,'and in that way would be directly interested-in ’ appellee’s-suit,.to recover the - eighty-acre tract'of land ‘fróm-Diboeld; -that appellee .asked him to mention-the ' matter to -appellant; that he explained the matter to -Lind:'sey, who afterwards informed him that he had procured : Judge .Taylor to assist him in the matter; that, -later, 'appellee -brought .him, a. written contract protiding that, in ca-se the tax .title,.was canceled, appellee would' divide the eighty-acre tract, or the proceeds thereof; in a foreclosure proceeding, .with appellant; that , the written agreement was entirely different from the proposal he made to-Lindsey, so he. advised appellee not to-sign it, and'that appellee followed his advice; that, after appellee’s refusal to enter into the written contract, he did not consult Taylor with reference to the conduct of the cancellation suit, and that he received no assistance ’ from Taylor in the prosecution thereof.

In view of the fact that appellee refused to enter into the written contract submitted by appellant to him, and the further fact that Judge Taylor knew nothing personally of the alleged contract between Lindsey and Polk, and the conflict in the testimony of Lindsey and Oliver, we are nnahle to say that the finding of the chancellor is clearly against the preponderance of the testimony hearing upon this issue.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Ruddell v. Gray.
    Opinion delivered June 28, 1926.
    1. Evidence — judicial notice . of legislative records'. — The Supreme- Court will take judicial knowledge of legislative records, regardless of any agreement of the parties concerning - same.
    2. Statutes^conflict between journal- and printed record.— Where there is. a conflict betweeh the journal of one of the branches of the Legislature and the printed record thereof, the former will prevail.
    3. Statutes — vote on bill. — The House journal showing that 73 voted for a bill - and 4 against, naming them,' the fact that there is a discrepancy as to the number of absentees does not’ invalidate the bjll, as the Constitution does not ' require the names of absentees to be recorded.
    4. Evidence — presumption of regularity. — It will be presumed that legislative officers complied with constitutional requirements unless the contráry affirmatively appears.
    5. Statutes — Presumption As to passage. — An enrolled bill, signed by the Governor and deposited with the Secretary of State, raises a conclusive presumption that every requirement'has-been complied- with, unless the contrary conclusively appears from the records of the General Assembly. -
    6. Bridges — notice of petition of landowners-t-bffect ,of mistake. — A mistake of'the-commissioners of. a,bridge, district in allowing the notice of* the hearing, .of the property' owners ‘to’ state that" the petition contained a majority in’ valué '-and numbers- of -the landowners, that being the question to be determined at such hearing, held, not. to affect the- validity df the proceedings; - where a hearing -was had at the’time-and place. specified, and a finding made that a majority had signed the petition.
    Appeal- from Independence -Cliáncery Court •' Lyman - F. Reeder, Chancellor;
    affirmed,

      John E. Miller, Gulbert ’ L. Pearce and Ben B. Williamson, for appellant.

      Ernest Neill, 8. M. Bone and S. M. Gasey, for appellee.
   McCulloch, C. J.

Appellees are commissioners of an improvement district, created by a statute enacted by the General Assembly of 1925 (Acts 1925, p. 977) for the purpose of constructing a bridge across White Biver, near the city of Batesville, in Independence County, and this action was instituted against them in the chancery court of Independence County by appellant, the owner of real property in the district, to restrain proceedings by the commissioners. One of the grounds for relief is .that the statute was not legally enacted and is void, and the other ground is that the commissioners failed to give proper' notice of the filing of the petition of property owners, which is a prerequisite to operations under the statute. Appellees filed an answer, and the cause was heard upon the pleadings and an agreed statement of facts, and the chancery court decided against appellant, and dismissed the complaint for want of equity.

The agreed statement of facts related, in part, to the condition, of the legislative records concerning the enactment of the statute, but we can only treat this agreement as informatory of the condition of the record, for we are bound to take judicial knowledge of the record, regardless of any agreement of the parties concerning the same. Booe v. Road Improvement District No. 4 of Prairie County, 141 Ark. 140.

The first contention with reference to the invalidity in the enactment of the statute is a discrepancy in the journal entries with regard to the vote on the final passage of the bill in the House of Bepresentatives. There is a slight variance between the journal entry itself and the printed record thereof, but each shows a majority in favor of the passage of the bill. Wherever a conflict between the two records appears we must look to the entries upon the journals themselves rather than to the printed record in order to determine the true condition. The bill for this statute originated in the House of Representatives, and was voted on and passed by the house on March 9,1925. The entry on the journal recites that the clerk called the roll, and that 73 members (naming them) voted in the affirmative; that 4 members (naming them) voted in the negative, and that 21 Representatives (naming them) were absent. This accounted for only 98 Representatives, leaving two unaccounted for, and it is contended that this constitutes a failure to comply with the constitutional requirement that “no bill shall become a law unless, on its final passage, the vote be taken by yeas and nays, the names of the persons voting for and against the same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor.” Article 5, § 22. It will be observed that there is no requirement in the Constitution that the names of absentees shall be recorded, the only requirement being that “the names of the persons voting for and against the same be entered on the journal.” We cannot assume that there was a failure to' record the names of any member voting, for the names of those voting on the bill were stated in the record, and, since there is no constitutional requirement for recording the names of the absentees, we must indulge the presumption that a clerical error occurred in recording the names of the absentees. The presumption that the officers performed their duties, until the contrary appears, must be indulged with reference to legislative compliance with the constitutional requirements, and it is our duty to uphold the enactment unless it affirmatively appears that the constitutional requirements were not complied with. Hence we must indulge the presumption, as before stated, that a clerical error occurred in recording the names of the absentees and not in recording the names of those who were present and voting.

There is an attack on the validity of the statute in an attempt to impeach the recitals of the journal by showing that the entry reciting the final passage of the bill on its return from the Senate with an amendment was false. After the passage of the bill in the House on March 9,1925, it was sent to the Seüate, and passed there after the adoption of an amendment. The House adjourned on March 12, and the records.recite a vote by, yeas and nays on the passage of the amended bill — a large majority of the House voting yea. Appellant offered oral testimony to the effect that this , entry was false, that the bill was not called up in the Honse at all after its return from the Senate,-and that there was never any concurrence in the Senate amendment, but that, on the contrary, the entry on the-journalwas ordered by the Speaker several days after the adjournment of the House. The chancery court was correct in disregarding this testimony, for legislative enactments cannot be attacked in this manner. It has been repeatedly decided, by this court that an enrolled' statute, signed by the Governor and deposited with the Secretary of State, raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly,- and that this presumption is conclusive, “unless the records, of which the court can take judicial knowledge, show to the contrary. ’ ’ State v. Crowe, 130 Ark. 272, 197 S. W. 4; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Perry v. State, 139 Ark. 227, 214 S. W. 2; Booe v. Sims, 139 Ark. 595, 215 S. W. 659; Road Imp. District v. Sale, 154 Ark. 551, 243 S. W. 825. In Booe v. Sims, supra, we said: “In determining whether an act has been properly passed by both houses of the General Assembly, the -court will not look beyond the records, books, papers and rolls of the General Assembly and the journals of each house required to be kept by the Secretary of State:” The journals of the Legislature cannot 'be impeached by oral, testimony, for the reason that there is a conclusive presumption arising from the enrolled bill signed by the Governor, which can only be overcome by affirmative recitals of the record. It would be disastrous to hold otherwise and to permit the validity of a statute to depend on oral testimony as to the correctness of the journal entries of the Legislature. Our conclusion is that the statute cannot he successfully impeached in this manner, and that, .in accordance with the records, of which we take notice, the statute was properly enacted.

There remains only for discussion the question of the attack upon the proceedings on account of alleged irregularity in the notice given by the commissioners. Section 7 provides, in substance, that the provisions of the statute can only be put into operation by petition or vote of a majority in value and numbers of the owners of real property in the district; that, if a petition purporting to be signed by a majority of the owners of property be filed with the commissioners, they shall “give public notice of' such facts in at least one weekly newspaper and in two' issues thereof, published in Batesville, Arkansas, and set a day and place for the hearing, not less than twenty days after the first publication of said notice, and at said place and time the commissioners shall examine the petitions filed, together with the county assessment list of the lands in said district, for the year of 1924, and shall continue said hearing from day to day until completed, and shall determine whether those signing such petition constitute a majority in numbers and in value of the owners of lands in said district.. The statute further provides that, if the commissioners find that the petition or petitions have been signed by the requisite majority, they shall so declare, and that public notice of the finding shall be given in 'at least one weekly newspaper for one issue published in Batesville, and that the findings shall be conclusive unless suit to invalidate the findings shall he commenced in the chancery court within twenty days.

It will be observed from the narrative of the requirements of the statute that, when a petition is filed, the commissioners must name a day to hear protests, and publish a notice thereof, and that, on the day named, if they find that the petition contains a majority, they shall so declare, and publish a notice to that effect. Now, it is alleged and shown in this case that the first notice published by the commissioners contained a declaration of findings that the petition contained a majority. It is the contention of appellant that this invalidated the notice. It is true that the commissioners had no power to make a finding on the question of majority until the day set for hearing, and the declaration contained in the notice was premature, but it does not affect the validity of the proceedings, which are otherwise in compliance with the statute. The notice gave information as to the time and place and purpose of the hearing,-which was held on the day named in the notice, and the declaration was then made and published as to a majority having signed the petition. The mistake in making the premature declaration did not impair the rights of property owners with'respect to being given a hearing on the question whether or not a majority had signed the pétition.

All of the attacks on the validity of the statute and the proceedings thereunder are unfounded, and the chancery court was correct in its decision.

Affirmed.


text:
    Arkansas Cold Storage & Ice Company v. Fulbright.
    Opinion delivered June 28, 1926.
    1. Fixtures — trade fixtures — removability.—The general rule as to the removal of trade fixtures is more favorable where the relation of landlord and tenant exists than in regard to any other relationship.
    2. Fixtures — test of removability. — The principal tests of the removability of trade fixtures are the intention of the party making the annexation, his situation and relation to the owner of the soil, and whether the annexation was intended to be .permanent.
    3. Fixtures — "rem’ovability of- tenant’s machinery. — Where machinery used in making ice-cream and soft drinks was by a tenant placed in a rented building solely for the use and benefit of the tenant in the operation of his business, without any intention of making an annexation for the purpose of improving the land, the fixtures were removable where no material injury to the freehold would result from their removal.
    Appeal from Washington Chancery Court; Sam Williams, Chancellor;
    affirmed.

      Walker S Walker and W. N. I vie, for appellant.

      J. W. Grabiel and John W. Nance, for appellee.
   McCulloch, C. J.

This litigation involves the ownership of property which constituted the machinery and equipment used in making ice-cream and soft drinks. The articles involved in the controversy are described as follows:

One bottle-rinsing machine of the value of ...................................................................................j$ 400.00
One bottle soaker......................................................._ 300.00
One bottle carbonator......................................... 500.00
One bottling machine........................... 1,500.00
Two centrifugal pumps............................*........... 400.00
One ice-cream freezer........................................... 500.00
One ice cooler and freezer combined...... 300.00
One cream mixer................................ 300.00
One emulsifier............................................ 500,00’
One cooling machine................................... 200.00
Seven electric motors....!.......................................... 500.00
Two ammonia compressors.............................. 1,500.00

The property was situated upon premises owned by appellant, but was removed therefrom by appellees, the purchasers at a judicial sale passing the title of former occupants of the building, who were tenants of appellant. The sole question involved in the case is whether the items of property in controversy were irremovable fixtures attached to the soil owned by appellant, or whether they were movable trade fixtures placed on the premises by the tenants. There is little, if any, controversy about the facts in the case.

Appellant is a corporation, and for many years has .been engaged in the business of cold storage and the manufacture and sale of ice in the city of Fayetteville. Appellant owned its own plant and vacant lots adjoining the plant, and, about the year 1906, appellant erected a small frame building on the vacant lot and permitted D. M. Allen to occupy the same for the purpose of engaging in the manufacture of ice-cream and soft drinks. At first no charge was made by appellant for the rent of the premises, and the right of occupancy was granted to ' Allen merely in consideration of Allen becoming a customer for the purchase and use of ice from appellant’s factory. Allen put in the machinery and equipment and operated the business for a few months, and then sold an interest to Winkleman, and the two subsequently sold to Fulbright. Fulbright sold an interest in the business to Waugh, and the two operated the business for a number of years under the copartnership name of Fayetteville Ice Company. Waugh died in 1922, and the business was conducted by Fulbright as surviving partner. Then Fulbright died, and the business of the copartnership was wound up and the property sold by a commissioner under decree of the chancery court. Appellee became the purchaser, and removed the machinery and equipment from the building, and appellant intervened, claiming title to the property.in controversy.

It appears from the testimony that the copartnership composing the Fayetteville Ice Company and their predecessors in the operation of the business established there, increased the size of the buildings on the property owned by' appellant, constructed concrete floors in the building, and put in all-of the equipment for the manufacturing plant, including the property in controversy. A portion of the property in controversy was actually attached to the building or to the soil in some way, and the remainder was heavy machinery, used in the manufacture of ice-cream and soft drinks. The two ammonia compressors weighed about 1,800 pounds, and rested on a concrete floor, and were supported by rods which ran 'through the floor and into the ground to a depth of two feet. The compressors were bolted ,to these rods and the rods were fastened in the- concrete. The emulsifier atnd the cooling machine were fastened to the water pipes, which came up from the ground and ran into them. The two pumps were attached to the building, and also the ice-cream cooler and freezer, which weighed about 600 pounds. All of the other items were heavy articles, resting on the concrete floor. In fact, most of the property was motor-driven and had to be anchored to the floor or wall.- The motors were fastened to frames on the wall. - .

There is no testimony tending to establish any express contract between appellant and the occupants of the building with respect to the ownership of the property in controversy or the right to remove the same. The property was, as before stated, occupied by the predecessors of appellees as tenants of appellant, and the permission to occupy was grauted in order for appellant to secure a purchaser of its ice produced in the adjoining factory. At first no rent was' charged, but in later years twenty-five dollars per month was charged as rent.

The chancery court decided that the property in controversy constituted removable trade fixtures, and our conclusion is that this decision was correct. It is very generally held .by the courts and text-writers that the rule as to removal of trade fixtures is more favorable where the relation of landlord and tenant exists than in regard to any other relationship of the parties (Ewell on Fixtures, p. 137), and this court has recognized that favorable aspect of the rule. Stone v. Suckle, 145 Ark. 387, 224 S. W. 735. The case of Choate v. Kimball, 56 Ark. 55, 19 S. W. 108, is a leading’ one in this court, and in that case we laid down, as the principal tests of removability, the intention of the party making the annexation and his situation, and relation to the owner of the soil — whether the annexation was intended to be made as a permanent accession to the freehold or merely for the benefit of the party making it. It is apparent from the facts in this case that the property in controversy was placed in the building by the predecessors of appellees solely for their own use and benefit in the operation of the business in which they were then engaged, and that there was no intention .to make the annexation for the purpose of improving the property. The annexation was therefore altogether for their own benefit and not for the benefit of the landlord. This is manifested by the fact that the building originally constructed by appellant and turned over to the tenants was of little value, and the additions thereto and annexations have been gradual, in accordance with the growth of the business, hence there was no material injury to the freehold by the removal of these fixtures.

Decree affirmed.


author: Wood, J.

text:
    Padgett v. State.
    Opinion delivered June 28, 1926.
    1. Criminal law — petition for change of venue — supporting affidavits. — Affidavits in support of a petition for a change of venue upon the ground that the defendant could not obtain a fair trial in the county held insufficient under Crawford ,& Moses’ Dig., § 3088, where they did not show that affiants were qualified or that they were not related to the defendant.
    2. Criminal law — change of venue — affidavits.—Affidavits in support of a petition for change of venue on the ground that accused could not obtain a fair trial in the county held not . to show such acquaintance with the minds of the inhabitants of the county as to qualify affiants as credible persons within Crawfor.d & Moses’ Dig., § '3088.
    3. Criminal law — continuance—absent witnesses. — In a prose-, cution for selling intoxicating liquors, denial of a continuance on the ground of the absence of witnesses who would have testified merely as to the absence of drunkenness or disorderly conduct on defendant’s premises, was not error, since such testimony would have been irrelevant.
    4. Criminal law — refusal of instructions already given.— Denial of requested instructions covered by others given is not error.
    Appeal from White Circuit Court; E. D.. Robertson, Judge;
    affirmed.

      J. N. Rachels and J. R. Linder, for appellant.

      . R. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

This appeal is from a judgment’ of the White Circuit Court sentencing the appellant-tb ‘imprisonment in the State Penitentiary for a period of' one year on conviction for the crime of selling intoxicating liquor.

The appellant filed his petition for change of venue in due form, supported by affidavits in thé following form: “We, the undersigned, resident citizens of White County, Arkansas, on oath state that we, and each of. us, are familiar with the statements contained in the foregoing petition,, and that we, and each of us, believe the same to.be true., (Signed) S. G. David, J. R. Jackson, H. L. Kannon. Subscribed .and sworn to before, me this the 25th day of-January, 1926, J. E. Turnidge, J. P.”

Two of the affiants to the petition testified to the effect that they did not believe the appellant, could obtain a fair and impartial trial in White County from the expressions they had heard from the people around Beebe. One of the affiants had lived in. the--county and at Beebe more than 25 years. Beebe was dhe 'market for a great manypeople in the western part of the county, and he. had come in contact with people from all over-the county. Prom .what he had heard of the expressions:of several people from different parts . of. the county .he -didn’t-believe the appellant could obtain a fair, .and impartial trial in -the county. .This witness-concluded his testimony by saying that the people-he had heard express. opinions about it were around Beebe, his home. “Of course, I don’t pretend to say all over the county,” said the witness. The other- affiant testified.that he based his opinion, upon, what he had.heard around Beebe. That was..the only place he had been. He stated that he had , not talked to any people in Antioch, Albion,- Bald .Knob, Big Creek and Pangburn townships. “Beebe is about all I know about,” said the witness. Witness was in the dray business, and that was not such a business as caused him to come in touch with a great many people around over the community.

The "court overruled the petition for change of venue. This ruling was correct for two reasons. First, the statute requires that the petition for change of venue -be supported-by the-affidavits of two credible persons who are qualified electors and actual residents of the county and not related ,to the defendant in any way. Section ”3088, C. & M. Digest. The supporting affidavit does not show "that the affiants were qualified electors of White ‘ County ‘ and that they were, not related in any way to the defendant. Second, the testimony of the two affiants does not show that they were credible persons within-the meaning of the statute. Their testimony does not show such knowledge of the condition of the minds of the inhabitants of .White County as would justify the affiants in making oath that appellant could not get a fair and impartial trial in the county. Dewein v. State, 120 Ark, 302, 179 S. W. 346; Speer v. State, 130 Ark. 457, 198 S. W. 13; Williams v. State, 162 Ark. 285, 258 S. W. 386.

The bill of exceptions shows the following:

“Mr. Linder: We want to file a motion for a continuance. Three of the witnesses called failed to answer, two-of-which I-understand have certificates here from physicians-that they aré.unable to attend court. Court: What.-is the motion? Mr. Linder:' The motion for a continuance sets out the fact that . these witnesses are absent not by the connivance or consent of ourselves, that they have been summoned here, and* what we expect to prove by them; they.live in the community of the defendant down there — Court: You need not go into details; sit down, all of you. Mr. Linder: Shall I file the motion, your Honor? Court: Sit down. Mr. Reporter, take this: This case was regularly set for trial this morning and was called for trial. The witnesses were called and the State announced ready for trial, and the defendant called his witnesses and announced to the court that he couldn’t go to trial because two of them were out of the county and not here. The court thereupon passed the case until the afternoon; before the afternoon, during the recess of the court, counsel for the defendant announced to the court that his witnesses had arrived in the county, that he had a telephone message from them from Kensett, and that he would be ready for trial on the arrival of those witnesses from Kensett, that he would take his chances on any other witnesses. The court is now informed that those witnesses are here,, so any further motion ta postpone this case is not admissible and will be denied. Mr. Rachels: " The' conversation I had with the court was that I thought with' these people here we could go to trial, also stating-to the,.court that Mr. Linder was in the case with me, and I.wpuld ascertain whether or not we could go to trial, and .let the court .know,' and Mr. Linder informed me, when I talked to him about it, that it was necessary to have these certain witnesses here, and he prepared the motion, and it is filed, and we would like to-present it to the court for further postponement of this case. That is as full as I remember the conversation that L undertook to .tell the court., ALany rate, I don’t want,-to be placed .in the position of binding, the defendant, - Sidney Padgett, if he has a further legal reason why he should, not go to trial. Inasmuch as I am the attorney who talked to the court; I’ am asking that- Mr. Linder be permitted to present to the court'defendant’s motion, and let the court pass upon the legality óf the motion. Court: “Examine the jury, gentlemen.” “Save our exceptions.”

One of the grounds of error alleged in appellant’s motion for a new trial is that “the court erred in refusing to permit counsel for defendant to present motion for continuance in the usual and proper manner, and in refusing.to hear the contents of the same, thus depriving the defendant of a legal defense as set out in said motion for continuance.” The motion for continuance, which the appellant offered to present, states-in-substance that three witnesses, naming them, if present, would testify .that they are close.neighbors of thé defendant,-and that they have never seen or been annoyed by disorderly or drunken conduct of persons on the premises of the defendant; that the defendant is basing this defense on the ground that the State will attempt to show by a number of -witnesses that there has 'been disorderly conduct in and near the home of the defendant. The rilling of the trial .court was tantamount to a refusal to allow the appellant, under the facts stated by the court, to file and present any further motion for a continuance^ .This ruling is not prejudicial to the appellant, unless he offered to file a motion in which he set forth testimony' of absent witnesses that would be material to his defense and that he had used due diligence to obtain the same; that he believed the testimony to be true, and that there was just ground to believe that the evidence could be had at the next term of the court. Now, the motion for continuance which appellant offered to file in the court below set' forth that three witnesses, naming them, if present would testify that they were close neighbors of the' defendant, find that they had never séen or been annoyed by disorderly or drunken conduct of persons on the premises of the defendant. The' indictment against appellant charged him with unlawfully and feloniously selling and being interested in the sale of intoxicating liquors. The appellant was tried and convicted of this offense. The testimony was sufficient to show that he was guilty of the crime charged. Such being the nature of the offense, the testimony of the alleged absent witnesses, as set forth in the motion for continuance, was not material to the charge, and, if the witnesses had been present and offered to testify as set forth in the motion, it would have been the duty of the trial court to exclude their testimony. Such ' testimony was wholly irrelevant to the issue as to whether or not the appellant had sold and was interested in the sale of intoxicating liquors. Moreover, the alleged, testimony-of these absent witnesses was but negative in character, because no testimony is set forth tending to prove that there had been any disorderly or drunken conduct of persons on the premises of the defendant, Sidney Padgett. Such was not the charge in the indictment, and an attempt upon the part of the appellant to rebnt snch charge would have been wholly irrelevant. The court therefore did not err in overruling the motion for continuance.

Counsel for appellant insist that the court erred in refusing to grant its prayers for instructions numbered from one to thirteen inclusive. Counsel point out no specific objection to the ruling of the court in refusing these instructions. We have examined them, however; and find that such of these prayers as were correct were fully covered by instructions which the court gave. The oral and written instructions as given by the court fully covered the law of the case in conformity with the rules of law governing such cases often announced by this court, and we deem it unnecessary to set out and comment upon them.

We have also examined the specific objection made by the appellant to the refusal of the court to give his instructions' numbered 11 and 13 in the original form and to .the modification of these instructions and the giving of the same a-s modified. There was nó error in these rulings of the court.

The record presents no reversible error, and the judgment must therefore be affirmed. It is so ordered.


text:
    Booth v. Racey.
    Opinion delivered June 28, 1926.
    1. Appeal and error — questions raised. — Where plaintiff recovered judgment against a part only of the defendants, who have appealed, the only question involved is whether there is error in the judgment against them.
    2. Trespass — damages.—Evidence held to sustain a verdict- for $250 for digging borrow-pits outside of the right-of-way for a road without the landowner’s consent.

      3. Trespass — justification—burden op proof. — It was not error to instruct the jury that road contractors digging borrow-pits outside of the right-of-way had the burden to show justification.
    4. Trespass — joint tort-feasors. — All persons participating in wrongfully digging borrow-pits outside of the right-of-way to decure dirt, for a roadbed without the landowner’s consent are liable as trespassers .and joint tort-fesisors. '
    5. Trial — argument of counsel. — In an action for digging borrow-pits for road without the landowner’s consent, an argument of plaintiff’s counsel asking what one of the defendants, would take to have a borrow-pit in his yard destroying the beauty of the home he built at a- cost of probably $8,000 or $10,000 that he "made from’ the profits of building the road, held not 'reversible error.- -
    Appéal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Eugene Cgpert and Downie S Schogg.en, for appellant.

      J. N. Rachels, for appellee.
   Wood, J.

This action was brought by . the appellee against the Arkansas-Missouri Highway District of White County, its commissioners," and- the’ appellants as contractors for the building of" the improvement contemplated by the creation of the district. He alleged in substance that, without his knowledge or consent, they entered upon his lands- and dug six large pits, ranging from three -to six feet deep, beyond and outside- the right-of-way, and unlawfully used the "dirt to build the roadbed of said road; that he was damaged by reason of their trespass in the sum of $2,000, for which he prayed judgment. The defendant denied the material allegations of the complaint.

The commissioners of the district and the appellants as contractors filed separate answers, in which all the material allegations of the complaint are denied except that the appellants were the contractors for the building of-the improvement contemplated by the district. On the first trial, after the testimony was adduced and the instructions given, the jury returned a verdict in favor of the appellee against the appellants, the contractors, in the sum of $200.. The court thereupon rendered judgment in favor of the district and its'commissioners and against the appellee, and granted a new trial as between the appellee -and .the contractors, appellants here. On the second trial.of the.issue as between the appellants, contractors, and the appellee, the jury returned a verdict in favor of the'appellee in the sum of $250. No appeal has been prosecuted by the appellee from the judgment rendered by the trial court in favor of the district and its commissioners. The appellants prosecute this appeal from the judgment in favor of the appellee against them.

Therefore the only question presented by this appeal is whether or not there is any' error in the judgment in favor.of the appellee against the appellants. At the conclusion of the testimony, the appellants prayed the court to instruct the jury to return "a verdict in their favor, which prayer for instruction the court refused, to which ruling the .appellants duly excepted.

The court, over the objection of appellants, gave '.to the-jury the following instruction: “This is a cause óf action by-Grlen.A. Racey against Booth Brothers and Harve Brown, in.which he is seeking to recover da,mages on.account of their: wrongful appropriation of his prop-e'rty, and you are instructed that,- undér the law and the testimony of this. case,- the plaintiff should recover from the defendants, unless you further find that the defendants or some one in their, behalf, or the law, relieved them -from so doing.: In other word's,- -gentlemen of the jury, the 'borrow-pits and-other alleged'wrongful acts can be - excused only by three methods known to the law, either by- contract with Mr. Racey,’ or -by’ just compensation, or by a lawful taking, and, the’ taking-being admitted, in the absence of contract, the burden is on the defendants to show justification without compensation.”

The contract between the district and the appellants contains, among other provisions, the'following: “The land for borrow-pits will be furnished by the district. The contractor must restore in an acceptable' manner all property, both public and private, which has been damaged during tbe progress of the work. If there is not enough material within the right-of-way to complete the grading and bring the subgrade to the proper height and dimensions, the contractor shall furnish such additional material' of a satisfactory quality as is necessary to secure the established grade and alignment for the roadway, embankments, etc. The land-for ‘borrow-pits’ will be furnished by the district. The contractor shall notify the engineer in advance of the opening of any borrow-pits, so that it may be properly cross-sectioned, if the engineer so desires. Should the engineer so elect, he shall have the right to estimate borrow quantities from the fill or embankment,- allowing ten per cent, for shrinkage. Any ‘borrow’ removed without notice to the engineer will not be estimated or paid for. The widening of cuts or other excavation within the limits of the roadway will not be under ‘borrow.’ Where material is borrowed the contractor shall not excavate the ‘borrow-pits’ below the general drainage level so as to form pockets or holes, nor shall he leave the b.anks from which he has taken the material rough or.uneven in line. All ‘borrow-pits’ shall be connected up with,the general drainage scheme of the improvement so as to insure their being properly drained. All boulders uncovered in the ‘borrow-pits’ shall be removed. ‘Borrow’ will not be required in rock. ”

The testimony is exceedingly voluminous, and we will only set out such of it as we deem material. Suffice it to say the testimony on behalf of the appellee tended to support the allegations of his complaint and to warrant at least the amount of damages as returned by the verdict of - the jury in his favor. Re states in substance that no one applied to him for permission to dig -the borrow-pits. There were six of these pits dug, and knolls were dug out into duck lake's. There was not a suitable place left for building a dwelling along the highway, as it was before the pits were dug. The property is damaged outside of the borrow-pits because the water accumulates and stands there. The pits were dug back of the right-of-way to get dirt to huild a dump.' The witness gave permission for the right-of-way.

L. E. Mercer, one of the engineers for the district, testified that the right-of-way for the road was fifty feet wide. They got the dirt along the right-of-way and some from the borrow-pits. He never gave the contractors the right to dig borrow-pits along Mr. Racey’s lands. The contractor took all of the fifty feet right-of-way except about five feet. If they had taken the dirt the full width of the right-of-way they would have had enough dirt to build the roadbed without digging borrow-pits, but would have had to build a deep ditch. They would not have had .enough dirt in the right-of-way to build the roadbed by digging ditches of reasonable depth. They could not have'done it and made the ditches.

Another engineer, an expert, testified, among other things, that he had examined the plans and specifications, and, according to these, it would not have been necessary to take any dirt outside of the right-of-way. Witness believed they could have found dirt enough on the right-of-way without the .digging of the pits. There was plenty of dirt there for the height of the road as shown by the plans. The Racey land was damaged because it destroyed the best of the land along the highway. .Pits are in an irregular condition, holding water, making an unsightly appearance and a breeding place for mosquitoes.

The secretary of the board of commissioners testified that the right-of-way along the Racey land was fifty feet wide. From 44 to 50 feet right-of-way was used in the construction of the road. Witness figured that there was about 1,500 yards of dirt, and that it could have been gotten out of the right-of-way. The board of directors did not give the contractors permission to build the borrow-pits. But witness understood that Blackshire, the engineer, did. The matter was not before the board before the pits were dug, but was before the board after they were dug.

There was testimony on behalf of the appellants to the effect that they completed the work, and that the same was accepted by the commissioners- and final settlement made with them for the same;-that the commissioners employed L. E. Mercer and Blackshire as engineers of the district, and gave them authority to superintend the road and build it; that, after the highway engineer and the engineers of the district had been' over the road with the commissioners several times and pronounced the same finished, the contractors were released. The commissioners did not release the .contractors from any liability they might be under to other people. The matter-of .digging the dirt out for the fills was left to the engineers by the commissioners. The foreman in charge of the work took the dirt from the land of. Racey adjacent to the' right-of-way under the authority of Blackshire, who was the engineer in charge of the work — he did what Blackshire' said.

One of the contractors also testified that Blackshire was the engineer in charge of the work, and the taking of the dirt from the borrow-pits by the foreman was under the authority of this engineer. The. witness did just what the engineer told him to do.

The testimony above set forth is sufficient to justify 'the ruling'of the'court in refusing to grant appellant’s prayer for instruction No.-1, which would have directed the jury to find in appellant’s favor. The court likewise did not err in granting tbe appellee’s prayer for instruction No.. 1 set out above. There was testimony from which the- jury might have found that it was unnecessary to go-beyond the limit of the right-of-way to get dirt for the construction of the improvement. In other words, that it was not necessary, in the construction of the improvement, to dig the.borrow-pits on the appellee’s land beyond the right-of-way, the digging of whieh caused the damage of which he complains. The testimony was sufficient to warrant the submission of the issue to the jury as to whether or not -such digging of the borrow-pits was done for the convenience of the contractors. Such being the case, it was no defense for the contractors that, under the terms of the contract, the land for the borrow-pits was to 'be furnished by the district. Such being the case, it was likewise no defense for the contractors that the digging of the unnecessary borrow-pits on appellee’s land outside of the right-of-way was done under the direction of the engineer of the district and its commissioners, even if it could be said that under the evidence this was an undisputed fact. All who thus, participated in the wrongful and negligent injury and damage to. appellee’s property would be trespassers and joint tort-feasors and liable to him as such. Foohey Dredging Co. v. Mabin, 118 Ark. 1, 4, 175 S. W. 400. See also Wood v. Drainage Dist. No. 2, 110 Ark. 416, 161 S. W. 1057.

This court, in the case of North Arkansas Highway Improvement District No. 1 v. Greer, 163 Ark. 141, 259 S. W. 380, held that the district, under the facts there stated, was liable to the owner of the land for damages resulting to him in the building of borrow-pits by the contractors, where the taking of the land by the contractors was authorized by the district. But we did not hold in' that case that, the contractors, would not likewise be liable as joint tort-feasors. The. question of the liability of the contractors, under the facts there stated, was not passed upon by this court.

The attorney for the appellee, in his argument to the jury, made the following statement: * Gentlemen of the jury, when you come to consider those things, I want you to ask Henry Booth what he would take to have one of those borrow-pits in' his -yard, destroying the beauty of the home he built at a cost of probably eight or ten thousand dollars, that probably he made out of the profits of building this road.” The appellant objected to this argument and asked the court to instruct the jury to disregard the same. The court overruled the objection, to which the appellants duly excepted. There is no reversible error in this argument. It was not the statement of any fact, but was merely the statement by the attorney of grandiose and imaginary suppositions of his own that he would like for the jury to consider. It is not probable that a jury would be prejudiced or influenced against appellants by this argument. It was in the nature of a-mere expression of the opinion of the attorney, and does not fall within the ban of nonpermissible and prejudicial arguments. The judgment is correct, and it is therefore affirmed.