text:
    Swift v. Common School District No. 8.
    Opinion delivered March 10, 1924.
    1. Schools and school districts — powers op county boards.— The effect of act No. 324 of Acts 1919, creating county boards of education, was to transfer jurisdiction theretofore vested in the county court and county judge, in the matter of conducting elections and creating special rural school districts, to the county board of education, without changing the method of procedure.
    2. Schools and school districts — time for canvass of election returns. — The duties of the county board of education, under Acts-. 1919, No. 324, § 11, requiring that it canvass the election returns and certify the result to the county court, are ministerial, and- no- intent is shown therein to name any definite day when the board shall meet to canvass the returns and declare the result, and such-act repeals Acts 1919, No. 15, § 4, fixing a particular day when the returns shoul'd be convassed by the county court and the result declared.
    3. Schools and school districts — map of contemplated district. —The requirement of Crawford & Moses’ Dig., § 8832, requiring the filing of a map or plat showing the territory embraced in a common school district or districts to be included in a special school district, is directory only, and should be construed' with the other sections of the statute in pari materia, providing for the time and manner of giving notice, and advising electors of the date of an election and subject-matter thereof.
    4. Schools and school districts — creating of district. — Where a petition for creation of a special school district sufficiently described the territory sought to be formed into a special school district, but the accompanying map failed to describe a section of land situated within the proposed district, such irregularity did not avoid- the entire proceeding.
    Appeal from Phillips Circuit Court; M. Jackson, Judge;
    reversed.

      Moore & Moore and J. G. Burke, for appellants.
    The omission from the map of section 3 was a mere irregularity, not fatal to the proceedings. School laws were designed as .a method workable by citizens not learned in law, and are not to be strictly construed. ,201 'S. W. 910; 73 Ill. 250; 28 N. E. 49; 182 N. W. 340. Such cases are to be differentiated from road district cases, as in that case the omission would be fatal. -

      Jacob Fink and W. G. Dinning, for appellees.
    The proceedings of the county board were void for the reason that it met to canvass the vote and declare the result of.the election on a day other than that required by law. Section 8834, C. & M. Digest. To hold otherwise would be to repeal by implication one very salutary provision of the statute. Such repeals are not favored. 157 Ark. • 291. . The Legislature having provided for the filing of a map showing all the district to be included, the necessity therefor cannot be dispensed with by the board. 146 Ark. 32. The filing of the map is jurisdictional. 147 Ark. 349.

      Moore <& Moore and J. G. Burke, in reply.
    Section 8834, C. & M. Dig., was repealed by act No. 15 of the Acts of 1919, which vested powers in the board theretofore vested in the county court. 153 Ark. 55 ; 155 Ark. 161.
   Wood, J.

The Barton Rural Special School District No. 4, in Phillips County, Arkansas (hereafter called special district), was created by order of the county board of education on the 9th day of May, 1922, under the provisions of §§ 8831 to 8842, inclusive, .of Crawford & Moses’ Digest. The special district was created under the law out of territory which formerly ■composed common school districts numbered 4, 8, 19, 21 •and 39 of Phillips County, Arkansas.

Section 8832, Crawford & Moses’ Digest, provides that the petition for the -election “shall be accompanied by a map or plat showing the. territory embraced in the common school district or districts to be included in the proposed rural special school district, and said petition and map shall be presented to the county board of education in which such territory is situated, * * * and said county board shall designate the time and place for holding the election,” etc. There was a map or plat filed by the petitioners for the election, but it did not embrace section 3, township 3 south, range 3 east, of Phillips County, Arkansas, containing approximately 640 acres of land, in which was situated the town of Oneida, a village of possibly one hundred inhabitants, which section was within the boundaries of Common School District No. 39, one of the common school districts embraced within the special district. The election was held, pursuant to the petition, on the 6th day of May, 1922, and the county board of education of Phillips County met on the 9th day of May, 1922, for the purpose of declaring the result of the election, and on that day, having ascertained that a majority of the legal voters at the election were in favor of the special district, entered an order creating such district. May 9th was not a day of either any regular or adjourned session of the Phillips County Court.

This action was instituted ■ by common school districts Nos. 8 and 19 and certain electors (hereafter called aopellees) against the members of the county board of education (hereafter called appellants), petitioning for a writ of certiorari, setting up that the creation of the special district was void for, among’ other, the following reasons: That the county board of education met ' on a day' other than that required by law, and .that there was a fatal variance between the petition and the map required to be filed with it, in that the map omitted the description of the territory in Common School District No. 39 as above described. - The allegations of the petition were denied by the appellants.

■ The above are the facts upon which the circuit court ■found' that the order of the county board of education creating the special district was void, and entered a judgment quashing the proceedings of said hoard, from which is this appeal.

1. The appellee contends that the order of the board of education was void because the board met and canvassed the returns, declared the result of the election, and entered its order creating the special district on a day when the county court of Phillips County was not in regular or adjourned session. Act No. 15 of the Acts of 1919, approved January,.28, 1919, provides as follows: “At the first regular or adjourned day of the county court after the filing of said election returns the county court shall canvass the vote and declare the result of said election, and shall make an appropriate order.” Such was the law before the passage of act 234 of the Acts of 1919, approved March 11, 1919, creating a county board of education.

Section 11 of act 234, supra, among other things, provides: “All school elections held after the election and organization of the county board of education shall have the returns of such school elections made to the county board, and such county boards shall promptly canvass the returns and certify the results to the county court for proper record.” The effect of act 234, supra, creating the county board of education, was to transfer the jurisdiction theretofore vested in the county judge and county court in the matter of conducting the election and creating special rural school districts to the board of education, without changing the method of procedure. See Mitchell v. Directors of School Dist. No. 13,153 Ark. 50-55; Acree v. Patterson, 153 Ark. 188; Robertson v. Special School Dist. No. 9, 155 Ark. 161.

Now, it is manifest that the language of § 11 of act 234, supra, requiring that the board of education “shall promptly canvass the returns and certify the result to the county court for proper record,” shows that it was the intention of the Legislature not to name any definite day when the board of education should meet to canvass the returns and declare the result of the election. These duties were mere ministerial functions to be performed by the board of education. See Graves v. McConnell, 162 Ark. 167. The whole language of the section clearly shows that it was the intention of the lawmakers that these functions, should be performed .promptly and without waiting- for some regular or adjourned day of the county court, which, in some counties of the State, would involve a considerable delay, as county courts meet in regular session only four times a year, and there is no certainty as to adjourned days of such courts.

Section 11 of act 234, supra, further provides that, in case .contests .arise, the county board of education shall meet and ascertain the facts in the case, and that all contests shall be filed with the board of education within fifteen days after such election. So the electors in the districts affected and the patrons of the schools are not interested in the mere ministerial functions of canvassing the returns and declaring the result of the election. What they are really interested in is the actual result as declared, and provision is made for a contest of this result. This is a judicial proceeding, and must be instituted within fifteen days after the election, and a hearing must be had thereon as soon as practicable. The whole language of this section is utterly incompatible' with the idea that the board of education must canvass the returns and declare the result of the election on days fixed for the regular or adjourned days of the county court. Therefore section 11 of act 234, supra, must be held to repeal § 4 of act 15 of the Acts of 1919, fixing the particular day when the returns should be canvassed 'and the result of the election declared. Eubanks v. Futrell, 112 Ark. 437; C. R. I. & P. Ry. Co. v. MeIlroy, 92 Ark. 600 ; DeQueen v. Fenton, 100 Ark. 504.

2. The contention of the appellee that the special district is void for the reason that there is a fatal variance between the petition and the map required to be filed with it cannot be sustained, for the reason that § 8832 of O. & M. Digest, supra, requiring the map or plat showing the territory embraced in the common school district or districts to be included in the special school district, is directory only. ' This section must be construed, as a whole and in connection with all the other sections of the statute in pari materia. Other sections provide for the time and manner of giving notice, advising the electors of the date of the election and the subject-matter thereof. See §§ 8827, 8829 and 8831, Crawford & Moses’ Digest.

A map or plat was filed purporting to show the territory embraced in the common school districts to be included in the special district, but it failed to describe certain territory in District No. 39. This failure to accurately describe the territory embraced in District No. 39 did not render the entire proceeding null 'and void. An accurate description of the particular lands embraced in the common school districts was not essential to give the board of education jurisdiction to order the election under the statute. This was an irregularity, to be sure, but not such as to make void the entire proceedings creating the special district. The law requires, act 15 of the Acts of 1919, supra, that, when common school districts are formed into rural special school districts, the entire territory composing the common school districts must be embraced in the rural special district so formed. School District No. 52 v. Rural Special School Dist. No. 11, 146 Ark. 32; Clardy v. Winn, 162 Ark. 320.

Where the petition describes the common school district or districts by their number or numbers, it is sufficient to advise the board of education of the territory sought to be formed into the rural special school district. In this case there was a petition specifying the numbers of the common school districts, including Common School District No. 39, to be embraced in the special district, and also accompanying the petition was a map or plat designating Common School District No. 39, but failing to describe accurately a section of land situated therein. It would be a highly technical construction to hold that this failure to accurately describe the lands by section, township and range was fatal to the entire proceeding. As is said by the Supreme Court of Missouri in the case of Morrison v. Simms, 201 S. W. 910, “technical objections to proceedings to organize consolidated school districts are not fatal, since school law was designed as a method workable by citizens not learned in law, and is not to be strictly construed. ’’ See also, School Dist. No. 5 V. School Hist. No. 10, 73 Ill. 250; Kittleson v. Weltinger, 182 N. W. 340.

The case of Householder v. Harris, 147 Ark 349, upon which learned counsel for the appellees rely as authority to support their contention, is not analogous and not controlling, for the reason that that case relates to the law for the creation of road improvement districts. The requirement of a plat or map showing the boundaries of the proposed road districts to be created rests upon an entirely different principle from the statute providing for the creation of rural special school districts out of common school districts and requiring a map or plat to be filed with the petition. In the creation of road districts the lands to be embraced in a district must bear the burden of taxation necessary to provide funds for making the improvement for which the district is formed. But in the matter of changing and consolidating common school districts into one rural special school district no such question is involved. There are other features also which show that the purposes of the two statutes are entirely different.

Our conclusion is that the circuit court erred in entering a judgment quashing the proceedings of the board of education by which the special district was created. The judgment is therefore reversed, and, inasmuch as the cause has been fully developed and as the facts are undisputed, judgment will be entered here dismissing the appellees’ complaint and validating the proceedings of the county board of education of Phillips County, Arkansas, in creating the special district.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Matthews v. Stevens.
    Opinion delivered. March 10, 1924.
    1. Mortgages — deed absolute as mortgage. — Where a vendor" of land at the time of sale is indebted to the purchaser, and ¿ontinues so after the sale, with a right to call for a reconveyance, upon payment of the debt, a deed absolute on .its face will be considered a mortgage. ...
    2. Mortgages — deed absolute — evidence.—That a deed absolute -on its face was intended as a mortgage must be established by ' clear, satisfactory and convincing evidence.
    3. ’’ Mortgages — use of word - “redeem.” — The use of "the word' “redeem” in an agreement between the vendor and purchaser of. land reserving to the vendor the right to redeem before a certain date, though the deed -was absolute, held to mean the right to repurchase, where it was shown that there was no valid debt owing to the purchaser from the vendor.
    4. Mortgages — effect of agreement to repurchase.— An agrée‘ment between the vendor and purchaser of land, that the vendor should have a right to redeem before a stated time,, held, under the evidence, to be a contract..t.o repurchase, which right, was lost by failure to exercise'it within the stipulated time.
    Appeal from St., Francis Chancery Court; A. L. Hutchins, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    H. L. Matthews brought this suit in equity against E. E. Stevens to redeem 160 acres of land, and to that end seeks to have an absolute deed of conveyance to the land declared to be-a mortgage. •
    H. L. Matthews was the original owner of the land, and had executed a mortgage on it to Huestess Bros, to secure an indebtedness approximating $1,500. HuestessBros, had demanded payment of-their mortgage, and had threatened to institute proceedings in court to forecloseit. On the 11th day of «Tupe,-1917, H. L. Matthews conveyed the land to E. E. Stevens by an absolute deed, and at the same time the parties entered into a written agree-, ment with reference to the land, which is as follows-:
    “This memorandum of agreement between E. E.‘ Stevens and H. L. Matthews witnesseth:

      “H. L. Matthews being the owner of the northeast quarter of section twenty-three, in township five north, range one east, and the said property being about to sell under mortgage foreclosure, and he being unable to borrow any money to pay off the said mortgage or to sell his interest in the said' property for anything of value, because the mortgage debt amounts to the present value of the land.
    “Now, upon the payment of the mortgage debt by E. E. Stevens I have made to him a deed, in consideration that I may redeem the said property on any day prior to November, 1, 1918, upon the payment to E. E. Stevens of the .amount paid out by him in satisfaction of the mortgage debt, any advances made me by the said E. E. Stevens before said date, any improvements made by the said Stevens on said place, any taxes paid by said .Stevens, with interest on each of said items from their date at ten per cent, per annum.
    “Witness our hand at Forrest City, June 11, 1917.
    “E. E. Stevens.
    “H. L. Matthews.”
    On the 15th day of June, 1917, E. E. Stevens and his wife executed a mortgage on said land to S. E. Bradshaw for the sum of $1,500. The money thus borrowed by Stevens from Bradshaw was used to pay off the mortgage indebtedness of Matthews to Huestess Bros.
    H. L. Matthews was the principal witness for.himself. According to his testimony he had made arrangements with Mr. Bradshaw to borrow the money from him with which to pay off the mortgage indebtedness to Huestess Bros. A contention arose between them with reference to cutting timber on the land, and Bradshaw refused to make the loan to Matthews. Matthews then -induced Stevens to take a deed to the land and mortgage it to Bradshaw for the purpose of-securing $1,500 with which to pay off said mortgage indebtedness. The substance of the testimony of Matthews is that the deed from himself to Stevens, although absolute in form, was intended as a mortgage to secure Stevens for the amount of the mortgage indebtedness from Matthews to Huestess Bros., which Stevens should pay off for him. On November 1, 1918, Matthews went to Stevens and offered to' pay him the amount which he admitted to be due on the land, and demanded a deed back from Stevens. Stevens refused the tender, because the amount was not large enough.
    W. E. Huestess was also a witness for the plaintiff. According to his testimony,' he had authorized his attorney to commence foreclosure proceedings against Matthews because, on account of the boll weevil and other things, he thought the price of the land was going down, and the land was mortgaged for about its value. On November 1, 1918, he went with Matthews to Stevens for the purpose of redeeming the land. He was to furnish the money for Matthews, and had the amount which Matthews regarded necessary for redeeming the land. Stevens claimed that there was an additional amount due, which Matthews refused to pay, so that the land was not redeemed. Stevens had been in possession of the land from the time Matthews executed the deed to him on the 11th day of June, 1917, and had continued in the" possession of it after the offer of Matthews to redeem it on the 1st day of November, 1918. After this time Stevens rebuilt the fences around the place and replaced a rail fence' with a wire fence. He also cleared fifty acres of land, and did quite a lot of ditching.
    There is a conflict in the testimony as to the cost of building the fences, digging, the ditches and clearing the land. Stevens also paid the taxes on the land, Other testimony will be stated or referred to- in the opinion.
    The chancellor was of the opinion that the deed from Matthews to Stevens to the land was a mortgage, and decreed a foreclosure of the mortgage for the amount 'which he found to be due thereunder. Both parties have prosecuted an appeal to this court.

      W. A. Singfield, for appellant.
    The court erred in rejecting the statement introduced by apnellant and accepting that ..introduced by appellee. IE. C. L. 210. In the absence of proof showing fraud, mistake or error, the parties are concluded by the account stated. 41 Ark. 502; 53 Ark: 155; 13 'S. W. 592; 68 Ark. 534; 60 S. W. 420; 85 Ark. 217; 107 S. W. 674; 29 L. E. A. (N. S.) 340. It is the duty of an agent to account for money of his principal received by him. 21 E. C. L. 832; 25 Ark. 219. Where a mortgagee makes repairs that are not necessary to preserve the estate, he is not entitled to compensation for them. 52 Ark. 381; 147 Ark. 611; Jones .on Mortgages, § 1127; 52 Ark. 381; 147 Ark. 611.

      Mam Maom, for appellee.
    It is a .general rule of law that a deed is presumed to be of the character shown in the instrument, and that a deed absolute upon its face would not be construed to be á mortgage unless the presumption of law is overcome by evidence which is clear, unequivocal and convincing. 7.5 Ark. 551; 88 Ark. 299; 106 Ark. 583; 128 Ark. 67. For the purpose of ascertaining. the true intention of the parties, all of the circumstances connected with the transaction should be taken into. account, including the ■circumstances of the parties at the time, the property conveyed, and its value, and the written and oral agreements between the parties, and also the acts and declara- ' tions of both ¡parties at the time the transaction was had. •The adequacy of the price has been recognized as being of great weight in the consideration of this class of cases. 13 Ark, 112; note 20 A. & E. Ann. Cas. 1199. The real ■criterion is the existence or the nonexistence of a de,bt or liability between .the parties, which might be enforced against the person making the deed. 75 Ark. 551; Jones on Mort. 265. A- contract to release his right of redemption for an adequate consideration can be enforced. ,139 Ark. 469. The delay of three and one-half years in itself would constitute laches in this case. 55 Ark. 85. When it is deemed unjust for either party to prevail because he has by his conduct done-those things which might be regarded as waiving his rights, or has put the other party in a situation where it would not be reasonable to place him if the remedy were to be asserted, the doctrine of laches should be applied and the remedy barred. 86 Ark. 591.
   Hart, J.,

(after stating the facts). It is well settled in this State that whenever, at the time of a sale, a vendor is indebted to the purchaser, and continues to be indebted after the sale, with the right to call for a reconveyance upon payment of the debt, a deed absolute on its face will be considered by a court of equity as a mortgage.Harman v. May, 40 Ark. 146, and Brewer v. Yancey, 159 Ark. 256.'

The effect of our decisions is that, whether any particular transaction does thus amount to a mortgage or to a sale with a contract of repurchase must, to a large extent, depend upon its own circumstances. The question ultimately turns, in ail cases, upon the real intention of the parties, as shown upon the face of the writings or as disclosed by extrinsic evidence. The rule is undisputed that, to show that a deed is not in fact an absolute conveyance but was intended as a mortgage to secure a debt, the evidence must be clear, satisfactory and convincing. Hays v. Emerson, 75 Ark. 551; Snell v. White, 132 Ark. 349; Henry v. Henry, 143 Ark. 607; and Jefferson v. Soulter, 150 Ark. 55.

It is true that the written agreement between the parties of the same date as the absolute deed recites the fact that Matthews had made to Stevens a deed, upon payment of the mortgage debt by Stevens, in consideration that Matthews may redeem the property upon any day prior to November 1,1918.

The word, “redeem,” however, has. no definite significance. It means to repurchase, or to regain, and does not necessarily imply the existence of a valid existing indebtedness. The mere use of the word “redeem” is not sufficient to make a contract for reconveyance a defeasance. If it be shown there was no debt from which redemption might be made and that the debt has, in fact, been extinguished, then the word will be construed as repurchase. Cole v. Beh (Iowa), 132 N. W. 73; Robinson v. Cropsey, 2 Edwards’ Ch. Repts. 138, affirmed in 6 Paige’s Ch. (N. Y.) 479; 3 N. Y. Ch. Repts. bot. p. 1069, and Pace v. Bartles, 47 N. J. Eq. 170, Atl. 352.

In the last-mentioned case it is said that the distinction between a contract for repurchase and a defeasance is difficult to define, and that, in fact, they cannot be distinguished without taking into consideration all the facts and circumstances surrounding the transaction. Such is the effect of our own decisions on the subject.

In the case at bar the facts are that there was no indebtedness, in the first place, from Matthews to Stevens. Matthews had mortgaged the land to his nephew for an amount which, all the witnesses agree, was the full value of the land. Indeed, one of the mortgagees said that he was afraid that, on account of the boll weevil and other ■things, land would depreciate in value so that the land in question would not pay off the mortgage indebtedness, and, for this reason, they were about to foreclose their mortgage. Matthews had applied to Bradshaw for a loan to pay off the mortgage indebtedness, but, on account of some controversy in regard to cutting timber off of the land, Bradshaw refused to make him the loan. Matthews then procured Stevens to act for him. He executed an absolute deed to Stevens to the land. Stevens, in turn, mortgaged the land to Bradshaw for $1,500, and with the money paid off the mortgage indebtedness. At the same time a written agreement was executed between Matthews and Stevens wherein it was recited that the mortgage ■debt amounted to the present value of the land. The mortgage gave Matthews until November 1, 1918, to “redeem” the land upon paying to Stevens the amount paid out by him in satisfaction of the mortgage debt and any advances made by him to Matthews. The liability of Matthews to Huestess Bros, was wholly discharged when ■Stevens paid off the mortgage indebtedness to them. Matthews was not liable thereafter to pay them anything ■or to pay anything to Stevens. He had the right to repurchase, if he saw proper to do so, upon paying a certain sum within the period designated' in the written agreement. If the land had fallen in value Stevens could not, under the language of the contract and the circumstances surrounding the transaction, have held Matthews responsible, and must himself have sustained the loss.

Therefore we are of the opinion that the transaction is a contract for repurchase, and not a mortgage. According to the testimony of Stevens, he offered to deed the land back to Matthews on the first day of November, 1918, if Matthews would pay him the amount due for such repurchase, under the terms of their written agreement. His testimony in this respect is contradicted by Matthews. Matthews says that he tendered to Stevens the amount due under the written agreement. Then, if he desired in good, faith to repurchase the land, he should have proceeded promptly to exercise the right of repurchase given him under the contract. Instead of that, he waited from the first of November, 1918, until he brought this' suit on March 18,1922. During all this time Matthews lived near to the land and must have known what Stevens was doing with it. Stevens cleared about fifty acres of land, did considerable ditching on the land, and put a new wire fence around a large portion of it. He also made some other improvements of lesser consequence. As we have already seen, Matthews lived near to the land, and knew, or he must be charged with knowledge, that these improvements were being made. He made no protest of any kind, and this fact is evidence of considerable probative force in determining his good faith in the matter of repurchasing the land. The fact that he waited so long tends to negative the idea that his contention of the amount necessary to repurchase the land under -their agreement, as testified to by him, was correct.

The result of our views is that Ihe decree must be reversed, with directions to the chancery court to dismiss the complaint of Matthews for want of equity.


text:
    Bell Lumber Company v. Alewine.
    Opinion delivered March 10, 1924.
    1. Sales — evidence.—In an action for the balance due on a sale of lumber, evidence held to establish a meeting of minds in making the contract, but to raise a question for the jury as to the price agreed upon.
    2. Appeal and error — conclusiveness of verdict. — A verdiet upon conflicting evidence is conclusive on appeal.
    3. Trial — instruction invading jury’s province — In an action for the balance due for lumber sold under a contract requiring the buyer to deliver receipts to the haulers, which were to be turned . over to the sawyer for the owner, an instruction that delivery of such receipts to the sawyer was equivalent to delivery to the owner, and that he was bound by information therein contained as to the price allowed, was properly denied, as the question, under the evidence, was for the jury.
    4. Account stated — conclusiveness.—An account rendered is not binding as an account .stated unless both parties expressly or impliedly assent to its correctness.
    5. Account stated — submission to party. — An account stated must have been submitted either to the party sought to be bound, or to his duly authorized agent.
    Appeal from Pope Circuit Court; A. B. Pridcly, Judge;
    affirmed.
    STATEMENT OF FACTS.
    J. L. Alewine commenced tliis suit before a justice of the peace against the Bell Lumber Company, a partnership composed of C. Bell, O. C. Alewine and Reece Ale-wine, to recover the sum of $207.50, the balance alleged to be due for lumber sold by the plaintiff to the defendants. The defendants denied that they were indebted to the plaintiff in any sum whatever.
    The plaintiff recovered judgment against the defendants in the justice of the peace court for the amount sued for, and the defendants appealed to the circuit court. In the circuit court the case was tried before a jury.
    J. L. Alewine was the principal witness for himself. According to his testimony, he lived about three miles northeast of Atkins, in Pope County, Arkansas, and bought a tract of land near his farm, which it was estimated could be sawed into between 75,000 and 100,000 feet of lumber. The Bell Lumber Company had a lumber yard at Atkins, Arkansas. J. L. Alewine made a contract with O. C. Alewine to sell the lumber cut from the timber in question to the Bell Lumber Company fox $30 per thousand, “mill run.” W. R. Taylor ran a sawmill near the land, and it was understood between the parties to this suit that Taylor should be hired to saw the timber into lumber. The lumber haulers were to be. given slips of paper showing’ the grade, price, and quantity of lumber delivered to the Bell Lumber Company. These slips were to be delivered by the lumber haulers to Taylor, and to be used by him and J. L. Alewine in settlement of the amount of lumber cut by Taylor for said Alewine. [When 24,368 feet of lumber was delivered to the Bell Lumber Company, Reece Alewine gave J. L. Alewine a check for the purchase price thereof at the rate of $30 per thousand feet. On the 11th day of September, 1920, J. L. Alewine received another check in payment of 11,243 feet of lumber at $30 per thousand. On September 24, 1920, he received a check in payment for 8,558 feet of lumber at $30 per thousand. J. L. Alewine did not receive any further payments on account of the lumber, but the slips which were given to the haulers were turned' over by them to Taylor. On the 5th day of November, 1920, all the logs had been hauled to Taylor’s mill, and Mr. Taylor then showed J. L. Alewine one of the slips of paper which the haulers had delivered to him, and it showed that the Bell Lumber Company was only allowing the plaintiff $25 per thousand feet for the lumber. The plaintiff then went to see O. C. Alewine about the matter, and he told the plaintiff to go ahead and haul the rest-of the lumber, after it was sawed, and they would treat him right. The land from which the timber was taken cost the plaintiff $360. It cost him $24.50 per thousand feet to have the timber cut down, sawed into lumber and hauled to the mill of the defendants. After crediting the defendants with all payments at the rate of $30 per thousand feet for the lumber hauled, the defendants owed the plaintiff $207.50. The testimony of the plaintiff was corroborated by that of his son.
    O. C. Alewine was a witness for the defendants. According to his testimony, he worked with the machinery in their mill, and' made no contract whatever with the plaintiff for buying his lumber. lie only told the plaintiff the prices which the Bell Lumber Company paid for different kinds of lumber.
    Reece Alewine was also a witness for the defendants. He admits giving the plaintiff checks for lumber at the rate of $30 per thousand feet in the amounts testified to by the plaintiff, -but he says that he did! this in reliance upon the statement of the plaintiff to the effect that C. Bell, one of the defendants, had agreed to pay him that price.
    C. Bell was also a witness for the defendants. According to his testimony he did not agree to pay the plaintiff $30 per thousand feet for mill-run lumber. He agreed! to pay $30 per thousand feet for common boxing, $35 per thousand feet for clear boxing and $25 per thousand feet for what is termed narrows and dimension lumber. These were the prices that the Bell Lumber Company paid other parties for lumber, and were the prices which they agreed to pay to the plaintiff for his lumber delivered at the mill. The understanding was that the lumber was to be cut at the sawmill of W. R. Taylor and then hauled to Atkins to the lumber yard of the defendants. The defendants would give the haulers slips of paper showing the grade, measurement and price of each load hauled to the mill, to be delivered by them to Taylor. These slips were to be used in the settlements between all the parties.
    Taylor testified that he knew that the defendants were only allowing the plaintiff $25 per thousand feet for the lumber delivered, as shown by the slips, and stated that he did not tell the plaintiff abo at this until after all the logs had been hauled to his mill, which was on the 5th day of November, 1920. He said the reason he did not tell him sooner was because he wanted to saw the lumber for the plaintiff, and was afraid that, if he told the plaintiff that the defendants were only allowing him $25 per thousand, he would quit cutting his timber and having it sawed. The plaintiff had told him before this that the defendants had agreed to pay him $30 per thousand feet, “mill run,” for his lumber. Taylor further stated that he had agreed to take the grade and measurement of the lumber made by the defendants at their mill, and that it was understood that the slips showing this and the price of the lumber should be returned to him by the haulers, to be used by him in settling with the plaintiff. From a verdict and judgment in favor of the plaintiff for the amount sued for, the defendants have duly prosecuted an appeal to this court.

      E. A. Williams and Ilays, Ward & Hays, for appellant.
    There was no valid contract, as there never was a meeting of the minds as to the amount to be paid for the lumber. 97 Ark. 613; 11 L. B. A. (N. S.) 254. The contract of sale was severable, as shown by the testimony, there being no stipulated amount of lumber to be sold. The contract was therefore void for want of mutuality. 102 Ark. 621; 88 Ark. 493 ; 76 Ark. 74. Each ticket was an account stated, and the delivery of such tickets to the agent of the appellee was a delivery to him, and notice as to the price allowed. 111 Ark. 443; 29 Ark. 99; 158 Ark. 119.

      Gordon 3 Combs and Robert Bcuiley, for appellee.
   Hart, J.,

(after stating the facts). It is first insisted that the evidence is not sufficient to support the verdict. The contention in this respect is that the minds of the parties did not meet as to the price to be paid for the lumber. We cannot agree with counsel in this contention. According to the testimony of both the plaintiff and the defendants, there was a meeting of the minds of the parties as to the price to be paid for the lumber; but their testimony is in direct conflict as to what price the parties agreed upon.

On the one hand, the plaintiff testified that the defendants agreed to pay him $30 per thousand feet for mill-run lumber. On the other, the defendants testified that they agreed to pay him $30 per thousand feet for common boxing, $35 per thousand feet for clear boxing, and $25 per thousand feet for what they called dimension lumber. So it will be seen that the testimony on each side tends to show that a contract was made between the parties for the purchase of the lumber of the plaintiff, to be delivered at the yard of the defendants in Atkins, Arkansas; but their testimony is flatly contradictory as to the price to be paid for it. There is no dispute between the parties as to the grade and quantity of the lumber delivered. The dispute as to the price to be paid' was settled by the jury in favor of the plaintiff, and the verdict is binding upon this court upon appeal. In this connection it may be stated that the court submitted the question of the price to be paid for the lumber to the jury in an appropriate instruction, to which no objection was made.

It is insisted', however, bj^ counsel for the defendants that the court erred in refusing instruction No. 1 asked by the defendant. The court properly refused to give the instruction in the form asked by the defendant. The concluding part of the instruction reads as follows: “And you are further instructed that, if you find from the testimony that the defendant, Bell Lumber Company, acting under the directions of the plaintiff, delivered to the various drivers a ticket, showing quantity and quality of each load, and giving prices given for the various grades of lumber, and these tickets were delivered to Taylor under the plaintiff’s directions, then you are instructed that the delivery to Taylor of these tickets was the same as if the tickets for the lumber had been delivered to the plaintiff, and the plaintiff is bound by the information in these tickets.’’

It will be noted that the instruction is peremptory in its nature. It tells the jury, as a matter of law, that, if the tickets given by the Bell Lumber Company to the haulers, showing the quantity, grade and price of each load of lumber, were delivered to Taylor, then the delivery of the tickets to Taylor was the same as if they had been delivered to the plaintiff, and that the plaintiff is bound by the information contained in the tickets. This was error. The question of whether these tickets became an account stated, under all the evidence, was one for the jury, under proper instructions from the court. It was error to tell the jury, as a matter of law, that the plaintiff was bound by the information given by the tickets because he had consented to their delivery to Taylor. The rule is that a stated account is not binding as such unless both parties, either expressly or impliedly, assent to it as being correct. Wimberley Grocer Co. v. Brandon-Craig & Co., 160 Ark. 527. In an account stated it is necessary that the statement of the account should be submitted to the party sought to be bound or to his duly authorized agent. Charlesworth v. Whitlow, 74 Ark. 277.

The jury might have found, from all the facts and circumstances introduced in evidence, that Taylor had authority from the plaintiff to receive -the accounts and act for him, expressly or impliedly, in assenting to the correctness thereof. But, under the circumstances, it would have been error to have told the jury, as a matter of law, that the plaintiff was bound by the knowledge received by Taylor as to the price allowed him by the defendants for the lumber.

The jury might have inferred, from all the attending circumstances, that the slips of paper showing the grade, quantity and price of lumber were given to- him to be used in the final settlement of all the parties with the plaintiff, and that the plaintiff might not examine them until after all the logs from the timber in question had been sawed into lumber and delivered to the defendants at their mill. Hence the jury might have found that it was not contemplated between the parties that the plaintiff should examine these slips until final settlement should be made of the whole matter. In this view of the case it would have been erroneous to have told the jury that be was bonnd by the information which Taylor received npon the delivery of the slips to him

It follows that the judgment must be affirmed.


text:
    Vinson v. Wooten.
    Opinion delivered March 10, 1924.
    1. Trial — requests for peremptory instruction. — Where both parties request a peremptory instruction, without asking for further instructions, they thereby assume the facts to be undisputed, and in effect submit to the trial court the determination of the inferences proper to be drawn from them.
    2. Appeal and error — conclusiveness of court’s finding. — Where ■a cause was submitted to the court without a jury, the court’s finding of facts is as conclusive as the verdict of a jury would have been.
    3- Evidence — parol evidence to contradict writing. — A recital in a note that it is payable in money cannot be contradicted by parol evidence.
    4. Bills and notes — agreement as to discharge. — The holder of a promissory note may agree with the maker for discharge of the obligation in a manner different from that set out in the note, and the execution of such agreement is a good defense to an action on the note while it is in the hands of the parties or their assignees wlith notice.
    5. Bills and notes — payment of payee’s indebtedness to third person. — Payment of the payee’s indebtedness to a third person by the maker of a note, pursuant to an agreement between the maker and the payee, that such payment should constitute payment of the note, held to extinguish the debt represented by the note.
    6. Evidence — parol evidence to explain writing. — Testimony of the maker of 'a note that it was given in renewal of a previous note held competent.
    7. Evidence — proof of consideration of note. — It is always competent to show the consideration or lack of consideration of a note.
    8. Bills and notes — renewal note — consideration.—If a payee of a note did not authorize another to act as her agent in procuring a renewal note, or ratify his act in so doing, she cannot recover thereon, as in such case there would be no consideration for the note.

      Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.
    STATEMENT OE EACTS.
    Mrs. Baldy Vinson sued June P. Wooten to recover upon a promissory note for $700. The defendant pleaded payment.
    The plaintiff introduced the note in evidence. It was dated Little Rock, Arkansas, September 11,1917, and was due sixty days after date. The note was for $700, payable to the order of Mrs. Baldy Vinson, and was. signed by June-P. Wooten.
    June P. Wooten, the defendant, was the principal witness for himself. According to his testimony, Baldy Vinson and himself became law partners in 1904,'and the partnership continued until some time in 1906. Wooten gave Vinson a note for the balance due him in the settlement of their partnership accounts. The note was renewed from time to time, and the accumulated interest was added to the principal, until a new note was executed for $717.84 on April 10, 1914. During this time Baldy Vinson borrowed some money from the Southern Trust Company, and June P. Wooten became his surety on the notes which he executed to that company. It was agreed between Baldy Vinson and Wooten that the latter should pay off the indebtedness of. the former to the Southern Trust Company, and that this should be considered a payment of the note owed by Wooten to Vinson, and that in the final settlement each would pay to the other what was due. That is, if the amounts that Wooten paid to the Southern Trust Company for Vinson were less than the amount due by Wooten to Vinson, that Wooten should pay to Vinson the balance. If the amounts paid by Wooten to the Southern Trust Company for Vinson should equal the amount due by Wooten to Vinson, then the note due by Wooten to Vinson would be considered paid. Vinson died in April, 1917, and at that time Wooten had paid a part of the indebtedness of Vinson to the Southern Trust Company. Baldy Vinson left surviving liim a widow and three minor children. J. E. Vinson, a brother of Baldy Vinson, was president of the Southern Trust Company. He took the matter up with Wooten, and Wooten explained to him the agreement that they had in regard to the set-off of the amount due by Vinson to the Southern Trust Company against the amount due by Wooten to Vinson. J. E. Vinson, acting for the estate of his brother, agreed with Wooten to take a new note for the amount of the indebtedness of Wooten to the estate of Baldy Vinson, deceased, and make it payable to the order of Mrs. Baldy Vinson. The understanding was that this note should be considered' paid when Wooten had paid an equal amount to the Southern Trust Company on the notes which he had signed as surety for Baldy Vinson. No attempt was made to collect the note sued on herein from June P. Wooten until some time in September, 1920, several months after the death of J. E. Vinson. ‘In the meantime Wooten had paid various amounts on the notes on which he became surety for Baldy Vinson, and in September, 1920, he finished paying off these notes to the Southern Trust Company. The sums that he paid to the Southern Trust Company as surety for Baldy Vinson were $42.20 more than the amount of the note which he had executed to Mrs. Baldy Vinson in renewal of the notes he had given to Baldy Vinson in his lifetime.
    The plaintiff and the defendant both asked the court for -a peremptory instruction, and no other instruction was requested by either of them.
    The circuit court told the jury that the amounts paid by Wooten to the Southern Trust Company for Baldy Vinson equaled the amount of the note sued on, and that, under the agreement between Baldy Vinson and June P. Wooten, it should’ be accepted in payment of the note sued on. Hence the court instructed the jury to return a verdict in favor of the defendant.
    From the judgment rendered in favor of the defendant the plaintiff has duly prosecuted an appeal to this court.

      Carmichael & Hendricks, for appellant.
    Appellee could not, by parol testimony, vary the terms of the note, nor show that it was without consideration. 131 Ark. 501; 131 Ark. 557, 558.

      John A. Vick and Edward B. Downie, for appellee.
    1. When both parties ask for an instructed verdict, the effect is that the facts are undisputed and the case submitted to the court sitting as a jury, and its finding is conclusive. The appellate court will assume that the lower court applied the correct principles of law applicable to the facts which the testimony tended to prove. 44 Ark. 345; 155 Ark. 506; 158 Ark. 62; Id. 133; 250 TJ. S. 295, 39 'Slip. Ct. 438. The note sued on related back to the old note from appellee to Baldy Vinson. No new consideration passed from appellant to appellee. It was the property of the estate, and it was her duty to turn the note over to the administrator of the estate, when •one was appointed, who alone had the right to enforce its collection. 83 Ark. 416; 31 Ark. 723; 15 Ark. 437; 16 Ark. 671; 18 Ark. 24; Id. 448; 21 Ark. 179; 22 Ark. 535; 27 Ark. 445; 31 Ark. 616. There was no consideration as between appellant and appellee. 13 C. J. 312, 313, 317, 318; 26 Ark. 160; 55 Ark. 369.
    2. There was no attempt to vary the terms of the written contract. The execution of the note was admitted; but appellee showed payment of the note. As to the consideration, “no rule of evidence is violated by admitting oral proof of the consideration for a promissory note for the purpose of showing want or failure of consideration, or illegality of consideration. ’ ’ 105 Ark. 281; 27 Ark. 510.
   Hart, J.,

(after stating the facts). The established rule in this State is that, where both parties request a peremptory instruction and do nothing more, they thereby assume the facts to be undisputed and, in effect, submit to the trial court the determination of the inference proper'to be drawn from them.

The circuit court’s decision, as evidenced by its instruction to the jury, that it render a verdict for the defendant, was a finding of fact, which concluded both parties .as effectually as if the same fact had been 'found by the jury. St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71; St. L. I. M. & S. R. Co. v. Ingram, 118 Ark. 377; Watkins v. Louisiana State Life Ins. Co., 151 Ark. 596; and National Benevolent Society v. Barker, 155 Ark. 506. Therefore the finding of fact by the trial court must stand if the record discloses substantial evidence to support it.

It is true that the note, by its terms, is payable in money, and this recital cannot be contradicted by parol evidence. It is equally well settled, however, that the holder of a promissory note may agree with the maker for a means or method of discharging the obligation in a manner different from that set out in the note, and, when such agreement, made between the parties, is shown to have been fully executed, it presents a good defense to an action on the note while it is in the hands of the parties, or their assignees with notice. Certain v. Smith (Ind.), 101 N. E. 319; Nolle v. Gates, 20 Tex. 315; Noble v. Edes, 51 Me. 34; and Cary v. Bancroft (Mass.), 14 Pick. 315, 25 Am. Dec. 393.

In the last mentioned'case the court said that an agreement between the maker and the payee of a note, that it shall be set-off against a note due the maker from the payee, so far as the smaller will pay the larger, is executory, and does not, pro tanto, extinguish either note. The reason is that it is like an agreement not to sue, executory -and collateral, not affecting the terms of the note until executed. Such agreement, however, does operate as a payment, under these authorities, when it has been executed.

It results from the principles of law decided in these cases that the agreement testified to by Wooten was in all respects a perfectly legitimate transaction, and, when carried into execution, the payments by Wooten to the Southern Trust Company for Vinson extinguished the debt he owed to Wooten.

It Avill be remembered that Wooten testified that he paid to the Southern Trust Company for Vinson $42.20 more than the total amount, principal and interest, due by him on the note he had given to Baldy Vinson in settlement of their partnership affairs. Wooten also testified that he did not owe Vinson any other amount of money, and did not owe Mrs. Baldy Vinson 'anything, except that he executed the note sued on to her, at the request of J. R. Vinson, as a substitution or a renewal of a note for a similar amount which he had given to Baldy Vinson for the amount due him in settlement of their partnership affairs.

The testimony of Wooten in this respect was competent. It did not in any wise tend to vary or contradict the terms of the note itself. His testimony only explained the transaction, and showed the circumstances under which the note was given. It is always competent to show the consideration or lack of consideration of a note by oral testimony.

But it is insisted that there is no competent testimony tending to show that J. R. Vinson acted for Mrs. Baldy Vinson in taking the note payable to her in lieu of the note which he had executed to Baldy Vinson. The fact of his agency in the matter is fairly inferable. Wooten testified fully as to the circumstances which caused him to execute the note. J. R. Vinson was a brother of Baldy Vinson, and also the president of the Southern Trust Company. The fact.that Mrs. Vinson received the note from him, and demanded payment from Wooten, shows at least that she ratified his agency in the premises. If she did not ratify the act of J. R. Vinson in taking this note in renewal or substitution of the note given by Wooten to Baldy Vinson, then the note sued on is without consideration, and that fact alone would be sufficient to defeat a recovery herein by the ' plaintiff.

The result of our views is that the judgment of the circuit court was correct, and should be affirmed.


author: Smith, J.

text:
    Johnson v. Cheek.
    Opinion delivered March 10, 1924.
    1. Appeal and error — verdict for plaintiff — inference.—Where there was a conflict in the evidence as to whether defendant was the plaintiff’s tenant as claimed by plaintiff, or was the agent of plaintiff in collecting the rent, from a finding for plaintiff on conflicting testimony it will be assumed that the jury found that the relation of landlord and tenant existed.
    2. Landlord and tenant — estoppel.—Where a tenant’s possession was undisturbed, and was referable to the tenancy, he could not defeat an action for rent by showing that his landlord did not own the property.
    3. Frauds, statute of — contract performable within one year. —A contract for the lease of a house until the timber coul'd be removed from land was not within the statute, where it does not appear that the timber could not be removed within one year.
    4. Frauds, statute of — contracts fully executed. — Where a contract has been fully executed at the time suit is brought, the statute of frauds has no application.
    5. Appeal and error — harmless error. — -Appellant cannot complain of an instruction, the error of which was in her favor.
    Appeal from Hot Spring Circuit Court; T. E. Toler, Judge;
    affirmed.

      H. B. Means, for appellant.
    It was error to refuse to give instruction No. 1, requested by the plaintiff. Haying alienated all rights she had to the homestead by warranty deed, she had no more right to maintain an action for rent of the place than any other stranger would have had. Tiedeman, Real Property, § 163; Waples on Homestead and Exemption, 484 ; 28 Ark. 286; 53 Ark. 109. The doctrine of estoppel would preclude her from any claim to the house and land, so long as her deed was not set aside by some court. 14 L. R. A. (N. S.) 515, note; L. R. A. 1915A, 201; Id. 1917D, 230; 92 Ark. 316; 79 Ark. Ill; 62 Ark. 57; 80 Ark. 8.

      D. D. Glover and D. M. Halbert, for appellee.
    Appellant’s counsel has proceeded on the theory that he could try the title of plaintiff to the house and lot, in the justice of the peace court, or in the circuit court on appeal. That he could not do. C. & M. Digest, § 6399; art. 7, § 40, Constitution; 31 Ark. 222; 36 Ark. 561; 38 Ark. 200; 94 Ark. 276; 95 Ark. 43; 98 Ark. 495; 106 Ark. 74.
   Smith, J.

This suit originated in the court of a justice of the peace, where appellee filed a complaint in which she alleged that, on or about February 26, 1920, she had rented appellant a house for $5 per month, and that appellant had occupied it for two years, and owed a balance of $90 rent, for which she prayed judgment.

Appellant filed an answer in which he denied that he had ever rented the place or had occupied it. He alleged the fact to be that, at appellee’s request, he found a tenant for her, who was placed in possession, and from whom he collected the rent during the time of his possession, and that he paid appellee the rent so collected.

The statement of the pleadings presents the principal issue in the ease, which is, of course, -one- of fact, and appellant’s defense was submitted in an instruction which told the jury, if they found from the evidence that appellant was only acting as agent for appellee, and paid over to her all rent collected, to find for him.

The testimony is sharply conflicting on this issue, and was ample to support a finding either way, but, inasmuch as there was a verdict for appellee — the plaintiff— we must assume that the jury accepted as true the testimony tending to show that appellant himself became appellee’s tenant and that the relation of landlord -and tenant was thereby created.

Testimony was admitted tending, on the one hand, to show that, prior to February 26, 1920, appellee -had conveyed the land on which the house stood to her brother-in-law, and, on the other hand, that the deed was intended only to effect a family settlement whereby the estate of her first husband’s father was divided, but was not intended to convey the title to the house.

After admitting this testimony, the court refused to give, at appellant’s request, an instruction numbered 1, reading as follows: “The court instructs the jury that, if you find' from the evidence in this case that the plaintiff, prior to February 26, 1920, deeded all her rights, title and interest in the tract of land upon which the house in question is located to John ¡Wallace, and in said deed released her dower and homestead, she would have no recoverable interest in said house, and your verdict will be for the defendant.”

There was no testimony that appellant was ousted from his possession; on the contrary, he voluntarily abandoned the possession. This being true, the instruction was properly refused. If his possession was undisturbed, and was referable to his tenancy — and the jury so found — then he could not defeat the suit for rent by showing that his landlord did not own the property.

Appellee sold appellant the timber on an eighty-acre tract of land, and her testimony was to the effect that appellant stated to her that he desired the use of the house for employees who would be engaged in removing the timber, and that he rented the house for the time required for that purpose, which he estimated at six months. Other witnesses who testified in appellee’s behalf stated that they had heard appellant say he had rented the house for two years. As has been said, appellant denied that he had. rented the house at all, but he asked the court to give an instruction numbered 2, reading as follows: “You are instructed that, if you believe from the evidence that the plaintiff rented the house in question to the defendant for five dollars per month, for a period of two years, and that such agreement, or some memorandum thereof, was not in writing and signed by the party to be charged with the rent, such agreement would be void, and you should find for the defendant.”

An exception was saved to the refusal to give this instruction; but no error was committed in refusing to give it. According to appellee, the contract sued on was one for the use of the house until the timber could be removed, which, she was told at the time, would require six months. It would have been immaterial, however, that more than one year might have been required for that purpose, as the contract was one which might have been performed within one year. In order to bring such a contract within the operation of the statute of frauds. it must appear, from the terms thereof, that it was not to be performed within one year. Sullivan v. Winters, 91 Ark. 149; Railway Co. v. Whitley, 54 Ark. 199; Sweet v. Desha Lbr. Co., 56 Ark. 597.

Moreover, this contract had been fully executed when the suit was brought, and for that reason the statute of frauds would have no application. Meyer v. Roberts, 46 Ark. 80.

It is finally insisted that the court erred in giving, over appellant’s objection, an instruction numbered 1, reading as follows: “You are instructed that, if you find from the evidence that the plaintiff was acting within her rights in entering into a contract to lease the said lands to the defendant in the sum of $5 per month so long as defendant’s mill was located near said property, you are instructed to find for the plaintiff whatever sum is due her, if any, less the sum of $30 already paid her.”

This instruction apparently submitted to the jury the question whether appellee had the right to rent the house, having previously executed a deed thereto. The error in this instruction is in appellant’s favor. If hé in fact rented the house from appellee, and occupied it without being ousted before he saw fit to voluntarily vacate it, he should pay the rent thereon, as he could not defeat his liability therefor by showing that his landlord did not have the title.

No error appears, so the judgment will be affirmed.


author: Humphreys, J.

text:
    Clark v. State.
    Opinion delivered March 10, 1924.
    1. Homicide — conviction op murder — sufficiency of evidence.— Evidence held sufficient to sustain conviction for murder in the first degree.
    2. Homicide — impeachment op dying declaration. — Dying declarations may be impeached in the same manner as other testimony is impeached.
    3. Homicide — impeachment op dying declaration — In a prosecution for murder, it was reversible error to refuse to admit a statement of deceased which tended to contradict a -dying declaration introduced in the case.
    4. Homicide — evidence.—Where the State’s theory in a murder ease was' that the trouble grew out of a purchase of whiskey by deceased from accused, it was error to refuse to permit accused to ask deceased's son whether deceased drank.
    5. Homicide — evidence.—Where defendant’s theory in a murder case was that deceased was threatening to kill him if he did not return $10 which he had won from him in a crap game, it was error to exclude defendant’s testimony as to whether he had won money from deceased in the game.
    6. Homicide — instruction as to manslaughter. — In a prosecution for murder it was error to refuse an instruction that defendant might be guilty of manslaughter if he killed -deceased without due care and in haste, believing that he was -about to be assaulted, even though there was no sudden heat of passion which -induced the act.
    Appeal from Jefferson Circuit Court; T. G. Parhcum, Judge;
    reversed.

      H. Jordan Monk and G. B. Craig, for appellant.

      J. 8. Utley, Attorney (General, John L. Carter, Won. T. Hammock, Darden Moose, J. 8. Abercrombie, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted of murder in the first degree in the circuit court of Jefferson County. An appeal has been duly prosecuted to this court from the judgment of conviction.

Appellant shot and killed Roy Finley, on the night of MCay 19,1923, near a negro church at Swan Lake. The deceased lived about thirty hours, and, during the time, made a dying declaration that he had a little difficulty with appellant over some whiskey he had bought from him; that afterwards, while he was fixing his spark plugs, appellant walked up and spoke to him, and, when he turned, began shooting at him. The State also introduced J. L. Bennett, a deputy sheriff, who testified that appellant voluntarily confessed' to him, in the presence of the jailer and prosecuting attorney, that he killed the deceased for the cause and in the manner following: That Finley came down to the church, demanded the return of $10 he claimed to have lost the night before in a crap game, threatening to kill him if he did not return it; that he went home, got his gun, went back, walked up to Finley, and killed him.

Appellant took the witness stand in his own behalf, and claimed that he was laboring under fear when he made the confession, and that he did not tell the whole, truth at that time. He then said that he killed the deceased in necessary self-defense.

Appellant contends for a reversal of the judgment upon the ground of the insufficiency of the testimony to support the verdict. We have only set out a general statement of the facts, as the dying declaration of the deceased and the confession of appellant to the officers tend to establish every essential ingredient of murder in the first degree, and are sufficient, within themselves, to support the verdict, if believed by the jury.

Appellant also contends for a reversal of the judgment because the court refused to admit the testimony of Henry Todd, tending to impeach the dying declaration of the deceased made to J. R. Hall. J. R. Hall testified that the deceased stated he did not know appellant was anywhere around until he was shot. Appellant offered to prove by Henry Todd that he got to deceased ten minutes after he was shot, and that deceased said, “I had just told Abraham Clark that I was going to turn him up if he did not give back my money, and Clark immediately shot me.” The court excluded Todd’s testimony, over the objection and exception of appellant. This court is committed to the doctrine that dying declarations stand upon tho same basis as other sworn testimony, and that such declarations may be impeached in the same manner that other testimony is impeached. Alford v. State, 161 Ark. 256. In support of this doctrine see also vol. 2 Wigmore on Evidence (2d ed.), § 1033; State v. Lodge, 33 Atl. 312; Carver v. United States, 164 U. S. 694. As the judgment must be reversed on account of the refusal of. the court to permit appellant to prove a statement made by the deceased to Todd contradicting, in part, his dying declaration, we shall only discuss such assignments of error as are likely to arise on a new trial of the cause.

Appellant assigns as error the refusal of the court to allow him to ask Earl Finley, son of deceased, whether his father drank. The theory of the State was that the trouble grew out of a purchase of whiskey by deceased from appellant. The question was proper as a circumstance tending to show whether deceased would have likely had the whiskey transaction with appellant.

Appellant also assigns as error the refusal of the court to allow him to testify whether he won any money from deceased in a crap game. Appellant’s theory was that deceased was threatening to kill him if he did not return $10 he had won from him in a crap game. It was therefore important for the jury to know whether deceased had lost any money in said game. If he lost any money in the game, it was a circumstance tending to support the claim of appellant that he was demanding its return. The court should have permitted appellant to answer the question.

Appellant objected severally to practically all of the instructions given by the court and to the refusal of the court to give a number of the instructions asked by him. We have examined these instructions carefully, and find that those given by the court, when construed together, correctly announced the law applicable to the facts in the ease; and find that all those refused by the court were improper requests, except the one .asked by appellant on manslaughter. This instruction was appellant’s request No. 2. It embraced the idea that the accused might be guilty of manslaughter if he killed deceased, without due care and in haste, believing that he was about to be assaulted, even though there was no sudden heat of passion which induced the act. The instruction given by the court upon manslaughter did not embrace this idea, so the requested instruction should have been substituted for the one given by the court.

The judgment is reversed, and the cause is remanded for a new trial.


text:
    Vaughn v. Tecmire.
    Opinion delivered March 10, 1924.
    Mortgages — conditional acceptance of deed — estoppel.—-Where the acceptance of a deed whereby the grantee assumed a mortgage on the land wias conditioned upon the grantee’s attorney approving -the deed, which was not done, such acceptance did not estop the grantee from denying his assumption of the mortgage.
    Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      R. D. Smith, H. P. Smith, for -appellant.
    There was no meeting of the minds of the parties. There was therefore no delivery and acceptance of the deed. The acceptance of the deed by appellant depended entirely upon whether or not his lawyer approved same. Appellant notified appellee of his non-acceptance of the deed, which was the extent of his obligation. ' 53 Ark. 32; 27 Ark. i89; 74 Ark. 119; 100' Ark. 431; 101 Ark. 135. Mere receipt of the deed was not necessarily an acceptance. Words & Phrases, vol. 1, p. 53.- Appellee, by the delivery of the deed, has not had his status changed to his disadvantage.

      Baggett & Baggett, for appellee.
    The evidence shows that appellant accepted the deed and took possession thereunder, and rented the lands to his grantor. The deed stipulated that the land was subject to a certain mortgage, and, by so accepting same, appellant is estopped from -asserting that he did not assume or agree to pay the indebtedness provided in the deed. 42 Ark. 197; 88 Ark. 406; 110 Ark. 70; 204 S. W. 423.
   Humphreys, J.

On the 23rd day of January, 1922, appellee instituted this suit in the chancery court of Lee County against ¡W. C. Sallis and appellant, to foreclose a second mortgage theretofore' executed by Sallis to him upon 240 acres of land in said county to secure $13,000, evidenced by notes, and to obtain a deficiency judgment against them for the amount due upon the notes. It was alleged in the bill that appellant, H. W. Vaughn, purchased the land from ~W. C. Sallis for $30,000 $1,000 in cash, $5,000 in notes secured by a vendor’s lien upon the land, and the assumption of the payment of existing liens upon the land in the sum. of $24,000, including balance of $12,636.18 due on the notes executed by Sallis to Tecmire.

Appellant filed .a separate answer to the bill, admitting the execution of the notes and mortgage by Sallis to Tecmire, but denying that he assumed the payment of the notes as a part of the consideration for the land when he purchased same from Sallis, but, on the contrary, alleged that he purchased the equity of Sallis in said lands for $6,000, and did not assume nor agree to pay the. existing indebtedness on said lands.

The cause was submitted upon the pleadings and testimony introduced by the respective parties, which resulted in a finding by the court that appellant expressly assumed and agreed to pay the indebtedness due appellee by Sallis. In keeping with this finding a personal judgment was rendered in favor of appellee against Sallis and appellant for $12,636.18. A lien was declared upon the land for said amount, subject to a prior mortgage lien in favor of the Mississippi Valley Trust Company, and a decree was rendered foreclosing’ the lien to obtain proceeds to apply on the judgment..

Appellant has prosecuted an appeal to this court from the personal judgment rendered against him. It is his contention that the finding and judgment of the court against him are not supported by a preponderance of the testimony. Only three witnesses testified in the case. They all agreed that the contrast entered into between appellant and F. E. Zeiger, who acted for himself and W. C. Sallis in the deal, was to the effect that appellant bought the equity of 'Sallis in the land for $6,000, subject to the existing liens thereon, amounting to about $21,000. Zeiger was to receive one-half he might obtain for Sallis’ equity iu the land. The arrangement made between Zeiger and appellant was for appellant to turn in an automobile for $1,000, and to execute a note for $5,000, and Sallis should give him a title bond, and, when he paid the notes, give him a quitclaim' deed. Zeiger employed an attorney to draw the title bond, but, having no blanks, he drew a deed instead, which recited a consideration of $30,000, $1,000 cash, $7,000 in notes, for which a lien was retained, and the assumption of $22,000 existing as an indebtedness on the land. The deed was turned over to appellant with the understanding that he might take it to his lawyer in Tennessee for examination, and, if not all right, he might return it and get another in keeping with the contract. It was not stamped or recorded, because it might have to be changed when inspected by appellant’s lawyer. Neither appellant nor Zeiger read the deed. After signing the notes and delivering the automobile, appellant took the deed to his attorney for inspection, and, when informed that it bound him personally to pay the existing indebtedness on the land, he offered to return the deed, and demanded another which would express the terms of the contract, or a return of his automobile and notes. He and his attorney were unable to obtain either. The notes had passed into the hands of innocent purchasers, and he was compelled to pay them. W. C. Sallis remained in possession of the land, and, in order that appellee might collect interest on his notes and mortgage, appellant accepted a note for the rent of 1921, and immediately assigned it to appellee, with the understanding that it should not affect his rights. F. E. Zeiger testified that lie told appellant that he was to pay $30,000 for the land. Appellant testified that $30,000 was to be the total cost of the land in ease he paid it out, bnt that he had not bound himself to pay more than $6,000.

Appellee contends that appellant was estopped to deny the assumption of the existing indebtedness against the land by the acceptance of the deed and assignment of the rent note. We think not, for the acceptance of the deed and the assignment of the rent note were conditional. According to the great weight of the evidence, the deed was not to become effective unless approved by appellant’s attorney. He disapproved it, so it cannot be said there was an unconditional delivery and acceptance of the deed. In assigning the rent note, appellant reserved his legal and equitable rights. He was hot estopped to deny the assumption of the existing indebtedness against the land.

For the error indicated the judgment rendered against appellant is reversed, and appellee’s bill against him is dismissed.


author: McCulloch, C. J.

text:
    Dubisson v. McMullin.
    Opinion delivered March 17, 1924.
    1. Appeal and error — conclusiveness op verdict. — A verdict on legally sufficient evidence must be treated as conclusive.
    2. Master and servant — when relation exists. — When there is a hiring of an automobile or other vehicle by the owner, who furnishes the driver, and the hirer exercises no control over the driver except to direct him when and where to go, the driver is the servant of the owner, and not of the hirer, and the owner is responsible as master for damages caused by the driver’s negligence.
    3. Master and servant — instructions.—In an action against a firm of undertakers for personal injuries of plaintiff received in a collision of an automobile furnished by defendants while returning from a funeral, where the defense was that defendants had hired the automobile and had no control over the driver, it was error to refuse to instruct the jury that defendants’ liability depended upon whether they exercised control over the driver, and such refusal was not cured by giving an instruction which submitted the question whether defendants had control of the automobile, since they might have controlled the movements of the automobile without exercising control over the driver in its operation.
    4. Appeal and error — assignments op error. — Assignments of error in a motion for new trial in respect to giving or refusing instructions need not be separately or specifically made; it being sufficient if the exceptions thereto were specific, and that the exceptions were brought forward into the motion for a new trial.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    reversed.

      Harry H. Myers, for appellant.
    In order to hold a principal liable for a tort of his agent, the agent must have been at the time engaged in his principal’s business, and the tort must have been committed while he was carrying on such business. 75 Ark. 579; 63 Ark. 30; E. C. L. 27, § 21; 69 Ark. 313; 85 Ark. 568; 89 Ark. 591; 105 Ark. 114. The court erred in refusing to give instruction number two requested by the defendant. 112 Ark. 417; 2 E. C. L. § 33, p. 1198; 231 N. Y. 8; 125 N. E. 244; 227 N. Y. 291; 18 E. C. L. p. 815, § 268; 205 Mass. 413; 91 N. E. 391; 136 N. W. 186; 149 Wis. 528; 40 L. E. A. (N. S.) 457; 92 Pac. 224; 13 L. E. A. (N. S.) 1122; 116 U. S. 366.

      Murphy, McHaney & Dimaway, for appellee.
    The testimony offered by appellants to show the usage and customs that prevailed, not having been preserved in the motion for new trial, cannot be considered on appeal. 70 Ark. 427; i83 Ark. 216; 108 Ark. 8; 137 Ark. 36. A general exception to several instructions given by -the court will not be entertained on appeal if any one of them is good. 75 Ark. 181; 76 Ark. 41; 38 Ark. 539. Where an employer hires his servant to another for a particular employment, the servant, for anything done in such particular employment, must be dealt with as the servant of the person to whom he is hired. 106 S. E. (G-a. App.) 624; 167 Ala. 316; 52 So. 829; 112 Ark. 425.-
   McCulloch, C. J.

Appellants are undertakers in tbe city of Little Bock, and, in the course of their business, they conducted' the funeral of a man named Longley, furnishing the coffin and all the equipments, and directing the movements at tbe funeral. Among other equipments, it is alleged that, as a part of the consideration paid, appellants furnished the automobiles to transport the family and friends of the deceased from the residence to the cemetery and return. Appellee was a friend of the family, and attended the funeral. She occupied one of the automobiles furnished by appellants, and was transported from the home of the deceased to the cemetery, being directed by appellants to take a seat in a certain automobile, and, on the return trip, she was again directed to take a place in the car, but on the return trip there was a collision, caused by alleged negligence of the driver. Appellee received personal injuries, and instituted this action to recover compensation for such injuries. There was a trial of the issue, which resulted in a verdict in favor of appellee, assessing damages at a small sum.

There was a conflict in the testimony as to whether or not the driver of the car was guilty of negligence. The testimony adduced by appellee tended to show that the driver, in operating the car, negligently failed to give the right-of-way to another car coming on an intersecting street, and, in order to avoid a collision, turned into the curb, and ran into a telephone pole.

The testimony adduced by appellants tended to show that the driver was not negligent, but was forced by the negligence of the driver of the other car to turn aside i,n order to avoid the collision, and thus was forced into the collision with the telephone pole. This issue was, however, submitted to the jury, and the verdict, on legally sufficient evidence, must be treated as conclusive.

One of the grounds on which appellants defended was that they did not furnish the automobiles as a part of their contract with the family of deceased, but that they merely acted as the agent of the family in securing automobiles from persons engaged in that business. There was a conflict' in the testimony on that issue. The widow of the deceased testified that she made a contract with appellants to conduct the funeral and furnish all necessary equipments, including the automobiles, and that she paid for the same on a general bill furnished by appellants, and that there was no separate bill furnished by appellants or any one else for the use of the automobiles. One of the appellants, however, testified that the furnishing of the automobiles was not a part of their contract, but that they merely, as the agents of the widow of the deceased, hired automobiles from another concern, and that they exercised no control over the drivers of the cars, except to direct them when and where to go.

Error of the court is assigned in refusing to give the following, among other instructions requested by appellants:

“2. The owner of an automobile who lets the same for hire, >and furnishes a driver to drive the hirer and his guest, the hirer exercising no authority over the driver, except to direct him where to go, the owner is liable, as master, for the driver’s negligence, whereby the occupants of the car may be injured. So, in this case, if you find the defendants, Dubisson & Goodrich, acted as the agents of the family to hire, and did hire, the automobile, with a driver to operate the car, and that they exercised no authority towards the driver than to direct him where to go, then they are not liable for any injury which may have been 'suffered by the occupants of the car, and you will find for the defendants.”

The court gave the following modified instruction requested by appellants:

“You are instructed that, if you find the defendants acted as the agents for the family to hire or secure automobiles for the funeral, and, in the exercise of that authority, they used ordinary care in hiring cars and drivers for that purpose, then you will find for the defendants.”

The court also gave the following instruction on its own motion:

“If you believe from the evidence that the defendants, in contracting ito take charge of the funeral, agreed with Mrs. Longley that he would engage automobiles for her from another, it being understood that he did not have automobiles for transportation of mourners, and used ordinary care and diligence in the hiring of automobiles and drivers thereof, then in that event he would not be responsible for the acts of the driver in charge of the car in which the plaintiff was injured. But if you believe that the defendants undertook to take charge of the funeral, agreeing to furnish the necessary transportation, and there was no express or implied agreement that they were only to act as the agents for Mrs. Longley in securing an adequate number of automobiles, and that the defendants had control of the automobiles after they arrived at their place of business and until after the termination of the funeral services, that is, until the mourners were returned to their homes, then the defendants would be liable for injuries, if any, suffered by the plaintiff by reason of the negligence of the driver of the automobile, if there was any negligence, although the automobile may have been actually owned by some person other than the defendants.”

The law seems to be well settled that, where there is a hiring of an automobile, or other vehicle, by the owner, who furnishes the driver, and the hirer' exercises no control over the driver except to direct him when and where to go, the driver is the servant of the owner and not of the hirer, and that the former is responsible, as master, for damages caused by the driver’s negligence. That principle is clearly announced by this court in the case of Forbes v. Reinman & Wolfort, 112 Ark. 417. The rule is in accord with the great weight of authority in other States. McNamara v. Leipzig, 227 N. Y. 291; Baker v. Allen, 231 N. Y. 8; Shepard v. Jacobs, 204 Mass. 110; Gerretson v. Rambler Garage Co., 149 Wis. 528, 40 L. R. A. (N. S.), 457; Frerker v. Nicholson, 41 Colo. 12, 13 L. R. A. (N. S.), 1122. The hiring of a vehicle under those circumstances constitutes an independent contract, and the test of liability turns on the question as to whether the owner or the hirer controls the movements of the driver. It is the same principle which controls the ques-.tion of liability in the case of a borrowed servant, the test, as we have said, being “whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.” Arkansas Natural Cas Co. v. Miller, 105 Ark. 477; St. Louis, I. M. & S. Ry. Co. v. Yates, 111 Ark. 486.

The evidence adduced by appellants in the present case tended to show that they acted as the agents of the widow of the deceased in hiring automobiles' for the funeral; that they hired the automobiles from an owner, who furnished the drivers, and that they exercised no control over the drivers except to direct them when and where to go. If appellants acted merely as agents of the widow of the deceased to procure cars, or if they undertook to furnish the cars themselves, and did so by hiring cars, with drivers, from another concern, and exercised no control in either event over the drivers other than to direct them when and where to go, appellants were not liable for negligence of the drivers. The law was correctly set forth in the second instruction requested by appellants, which should have been given. It is true that the court, in the instruction given of its own motion, submitted the question whether or not the defendants “liad control of the automobiles after they arrived at their place of business, and until after the termination of the funeral services, ’ ’ but that language was not sufficiently specific -to submit the question whether or not appellants exercised control other than that of directing the drivers when and where to go and to make the liability of the appellants depend upon that fact. The jury might have construed the language, “control.of the automobile,” as referring to general control, so as to make appellants, the hirers of the car, liable, because they controlled the movement of the automobile, even though they exercised no control over the driver in his operations. The instruction requested by appellants reached to the precise question on which the liability of appellants depended, and it was error to refuse to give that instruction, for no other instruction given by the court reached to the point.

Counsel for appellee rely on the decision of the Georgia Court of Appeals in the case of Greenberg & Bond Co. v. Yarbrough, 106 S. E. 624, -where the facts w-ere similar to those in the present case. Some of the language in -that decision appears to be in conflict with what we have said. If so, it is in conflict with what has already been, decided by this court in the cases cited "'.hove. The instruction given by the trial court in the Georgia case, however, is in accord with the. principles we announce, for it made the test of liability of the hirer depend upon whether or not he exercised control over the driver other than to direct him where the machine was to be driven.

It is also contended that the assignments of error with respect to the court’s rulings in giving and refusing instructions .are not available here, for the reason that the errors were not separately assigned in the motion for a new trial. The record shows that to each of the separate objections to the rulings of the court in giving and refusing instructions there was a separate exception saved at the time, but in the motion for a new trial the assignments were grouped together. For instance, in the motion for a new trial the fourth assignment of error is that the court “ erred in refusing to-give instructions numbered 1 and 2 aslced by the defendants, and part of 3 asked by the defendants, to the refusal thereof defendants excepted, and asked that their exceptions be noted of record, which was done.” We have uniformly held that exceptions to -a court’s ruling in giving or refusing instructions must be separately made at the time, and that exceptions in gross are not sufficient to bring up the instructions for review, unless the instructions objected to are all incorrect. Atkins v. Swope, 38 Ark. 528; Wells v. Parker, 76 Ark. 41. But we have never held that assignments of error in a motion for a new trial must he thus separately or specifically made. It is sufficient that the exceptions are separately made at the time, and that those exceptions are brought forward into .the motion for a new trial. Wells v. Parker, supra.

For the error in refusing to give appellant’s second instruction the judgment is reversed,- and the cause remanded for a new trial.


text:
    St. Louis Southwestern Railway Company v. O’Neal
    Opinion delivered March 17, 1924.
    Justices of the peace — jurisdictional amount. — Under Const., art. 7, § 49, limiting the jurisdiction of justices of the peace in matters of damage to personal property to cases where the amount in controversy does not exceed $100, the justice of the peace had no jurisdiction of a claim for $135, and the circuit court acquired none on appeal.
    Appeal from Lafayette Circuit Court; James H. McCollum, Judge;
    reversed.

      J. R. Turner, Gaughan & Sifford and D. L. King. for appellant. •.
    The justice of the peace had no jurisdiction, and the circuit court acquired none on appeal. Article 7, § 40, Constitution of 1874; 7 Ark. 258; 10 Ark. 326;-4 Dillon 239; 1 Wallace, v. 337; 10 Watts 299; 13 Ark. 40; 6 Ark. 371; 6 Ark. 41; 6 Ark. 182; 9 Ark. 463; 45 Ark. 346; 44 Ark. 100.
   McCulloch, C. J.

Appellee instituted this action against appellant before a justice of the peace of Lafayette County for damages to personal property in the sum of $135, for which amount recovery was prayed. There was a judgment against appellant, rendered by the justice of the peace, from which an appeal was prosecuted to the circuit court, and, on trial anew in .the circuit court, appellee again recovered judgment for damages.

The jurisdiction of a court is determined by the amount sought to be recovered, and not merely by the amount recovered, and the 'Constitution of this State (art. 7, § 40) restricts the jurisdiction of justices of the peace “in all matters of damages to personal property” to cases where the amount in controversy does not exceed the sum of one hundred dollars. It is evident therefore that the justice of the peace had no jurisdiction of the cause of action involved in this case, and the circuit court acquired none on appeal, Little Rock, M. R. & T. Ry. v. Manees, 44 Ark. 100.

The judgment is therefore reversed, and, the trial court being without jurisdiction, judgment will-be entered here dismissing the cause. It is so ordered.