author: McCulloch:, C. J.

text:
    Stuart v. Barron.
    Opinion delivered May 2, 1921.
    1. Equity — vacation decree against infant. — Under Crawford & Moses’ Digest, § 2190, providing that a chancellor, by consent of parties or of their, solicitors of record, “may try causes and deliver opinions, and make and sign decrees in vacation,” a chancellor may try an action and render a decree in vacation by the consent of all the parties, even though some of them are infants.
    2. Appeal and ERROR — decree on former appeal as law of the case. — Where a testator left all of his property, consisting of improved farm lands, of timber lands, and of personal property, to his wife in trust for his children, but directed how the farm lands should be distributed among his children, and plaintiff’s children brought suit for a distribution of the timber lands and personalty, and treated the trust as finally accomplished with repeat to the farm lands already distributed, and asked that they be given an equal division in the remainder of the property, and the Supreme Court decreed to them the relief asked, such decree in effect established as the law of the case that the remainder of the property was to be equally • divided and differences in value of the several tracts of farm lands were not to be equalized.
    3. Appeal and error. — Though appellees’ counsel, under a misconception of this court’s former opinion, consented to an instruction to the master to make a finding as to the relative values of improved farm lands, this did not bar appellees from objecting to a decree awarding payment of owelty, where no prejudice to appellants resulted from the concession during the progress of the proceeding.
    4. Appeal and error — final judgment. — A decree of the chancellor merely declaring the law with respect to the rights of the parties, without awarding any particular property to the parties, was not a final judgment.
    5. Attorney and client — amount of fees. — The trial court, in fixing the amount of the fees of attorneys for infants, properly considered the amount of the recovery; and where that amount was reduced on appeal, the cause will be reversed with directions to the chancellor to fix proper fees.
    Appeal from Greene Chancery Court; Archer Wheat-ley, Chancellor;
    reversed.

      J. F. Gautney, for appellants.
    1. The decree of April 7, 1919, is void for want of jurisdiction. 81 Ark. 440-462. Where a -complaint shows no canse of action and tenders no issue, a judgment thereon is a nullity, no matter how attacked. 62 Id. 439; 9 Lea (Tenn.) 68; 21 L. R. A. (N. S.) 481. It is void even on collateral attack. 11 L. R. A. (N. S.) 803; 5 A. L. R. 262. No partition or sale of lands, etc., devised by last will can be made contrary to the intention of the testator expressed in his last will. C. & M. Dig., § 8090. See, also, opinion on former appeal. 136 Ark. 481. That decision is the law of the case. The court had no jurisdiction, and the decree is void. 15 R. C. L., § 328, p. 885. The decree undertaking to adjudge that all the real estate of J. W. Stuart at the time of Ms death was the common property of the widow and cMldren is clearly without the issue and is void even on collateral attack.
    It was error to cancel the deeds executed by the widow conveying the improved lands. The decision on former appeal is the law of this case. 136 Ark. 481.
    2. The final decree is void because it was rendered in vacation. 224 S. ~W. 488. There is no evidence of an agreement to try the case in vacation and it being disputed that the decree was rendered in vacation it should be set aside.
    3. The chancellor erred in refusing to reopen the decree on motion of appellants. It was an abuse of discretion and reversible error. 21 Ark. 329 ; 77 Id. 216. Unless specially authorized, an attorney can not compromise a client’s case. 93 Ark. 342; 32 Id. 346; 56 Id. 355; 12 Heisk. 155.
    It was error to refuse to allow the claims of the widow for $1,600, as the evidence shows it was lawful and just; also in refusing to find that the widow was the owner of the certificates of deposit in the joint names of Stuart and his wife at the time of Stuart’s- death.

      W. W. Bandy, also for appellants.

      Self & Patton, Block & Kirsch and Huddleston, Fuhr & Fntrell, for appellees.

      Parties can not treat an issue as joined by the pleadings, and, after trying tbe case on the issue joined, can not raise the issue in this court for the first time on appeal. 227 S. W. 390, 402; 227 Id. 407.
    The decree of April 7, 1919, was a final decree and fixed the interest of all the parties arid is conclusive pf this case. 81 Ark. 454; Bliss on Code PL, § 161. j
    By appearing and submitting the questions on their merits appellants will be held to have consented to try the issues in vacation and they are bound. -85 N. W. 783; 55 So. Rep. 711; 110 N. W. 984; 9 Neb. 269; 69 Atl. 546; 99 Ill. 609; 61 Vt. 147; 76 Pac.' 584.
    • There was no error in allowing the fees of counsel; they were reasonable and well earned and not excessive.
   McCulloch:, C. J.

This case is here now on a second appeal, the attitude of the parties being reversed, the present appellees having been the appellants on the former appeal, and the present appellants having been formerly the appellees. Barron v. Stuart, 136 Ark. 481. The facts in the case were stated more in detail in the opinion on the former appeal than need be stated again. Reference is made to that opinion, and it is only essential now to give an outline of the facts.

J. W. Stuart, a man sixty-eight years of age, residing in Greene County, Arkansas, died on July 28, 1916, the owner of a large estate consisting of improved farm lands, timber lands and personalty of various kinds'. He left surviving him his widow, five sons, two daughters and the children of three deceased daughters, and a few days before he died he executed his last will and testament by which on the face of the instrument he devised and bequeathed all of his property to his wife, M. R. E. Stuart. Appellees, who are the daughters and grandchildren of J. "W. Stuart, instituted this action to establish a trust in certain property devised and bequeathed to the widow. The chancellor in the first decree decided that there was no trust under the will and dismissed the complaint for want of equity. On the former appeal this court sustained the trust and reversed the cause for further proceedings.

In the original complaint it was alleged that the testator, J. W. Stuart, had directed a division of the property, giving to the widow the homestead and $10,000 in money and certain other items of personalty, and that the remainder was to go to his children and grandchildren, and that he devised and bequeathed the whole of his estate to his wife as trustee, with instructions to convey to each of the children and grandchildren, separately, a tract of improved land, which he described by name or location, and to divide the timber land and personal property equally between all the children and grandchildren; that the widow after the death of the testator had carried out said directions by conveying the improved farm lands to the parties in accordance with the directions of the testator, but that she had refused to deed to her daughters and grandchildren any of the timber lands or to divide the personal property equally between the children and grandchildren as directed. The prayer of the complaint was that a trust be declared, and that the widow be compelled to carry out its terms by an equal division of the timber lands and the personal property among all the children and grandchildren, according to the directions of the testator. On the remand of the case, the plaintiffs, the present appellees, filed a supplemental complaint in which they set forth certain defects in the deeds executed to them by the widow conveying the improved farm lands and asked that a correction be made by the cancellation of those deeds, and the execution of new deeds by the commissioner of the court conveying the property to the plaintiffs in fee simple. It was also alleged in the supplemental complaint that the widow and one of the sons of the testator, J. A. Stuart, had cut and moved a large quantity of timber from the wild lands and had sold a large quantity of the stock and matured crops of the testator, and had disposed of other personal property, and asked that a master be appointed with power to state an account between the parties in regard to their respective interests in the property. There was also a prayer for a partition of the timber lands. There was an answer to this supplemental complaint and also a cross-complaint by the widow in which she claimed the sum of $1,600 as her separate estate, in addition to the sum of $10,000 which was specified was to go to her under the trust.

On April 7, 1919, the court entered a decree on the mandate of this court and the supplemental pleadings, in which the court recited a finding “that the real estate belonging to J; W. Stuart at the time of his death is the common property of his widow, grandchildren and great grandchildren (naming them),” and that it would be necessary to have an appraisement and partition in kind of all the lands belonging to the said testator, and the court appointed commissioners to set aside the homestead to the widow and to appraise each of the forty-acre tracts of land separately and divide the same into ten equal parts. The court' also appointed a master to take testimony and to report a statement of the account between the parties. It appears from the account subsequently filed that the widow, prior to that time, had divided the cattle and mules and horses by giving to each of the children and grandchildren a mule or a horse and a cow and calf, and out of the cash on hand she had given to each of them a check for $2,000 except two of her daughters who joined in this suit against her. Testimony was taken before the master, who made a report to the court setting forth in detail his findings concerning the amount of property in the 'hands of the executor, J. A. Stuart, and the amount of disbursements. The commissioners also made a report of the values of the tracts of wild timber lands and reported a partition of those lands equally among the children and grandchildren, giving to the grandchildren the share of the parent. There were no exceptions to the report of the commissioners, nor is there any controversy here concerning the division of the wild lands. There were twenty-one separate tracts of wild lands, containing forty acres each, and these tracts were equally divided between the parties. Exceptions were filed to the master’s report, and these exceptions came on for hearing by the court on April 5,1920. There was an order entered by the court reciting the filing of the exceptions and the submission of the cause, which was to be argued at a later time to be fixed by the chancellor. The cause was heard by the chancellor in vacation, all the parties being present by their attorneys, on July 15, 1920, and a final decree was rendered, the entry of which contained a recital of the submission of the cause during the term time on April 5. Certain matters were reserved from the decree entered on July 15, and the hearing was resumed on July 20,1920. This was a final decree, except that there was a motion made on August 21, 1920, to reopen the decree, which motion the court overruled on September 25, 1920.

On July 13, 1920, the attorneys then representing the parties (not including the present counsel representing appellants here who have succeeded former counsel in the case) joined in a written direction to the master, as follows:

“We hereby request that, in stating the final account for order of distribution in the case of Barron v. Stuart, that you take into account the difference in value of the so-called improved farms, the disposition of which were directed by J. W. Stuart on his death-bed, and absorb these differences in the final account, the value to be fixed as found by the commissioners, as under the decree of the Supreme Court all parties are to share equally by doing this, no liens will be retained against the respective tracts of lands on account of these differences and owelty awards.” It will be observed that this direction was given after the first decree on July 15, 1920, and pursuant to this direction the master reported the values of the improved farms conveyed to the different children and grandchildren, and in stating the account between the parties he equalized these differences so as to give each of the children an equal share in the whole estate. The court entered a decree in accordance with the report of the master, awarding to each of the children and grandchildren the amounts found to he the balance due to each of them out of the funds in the hands of the executor.

It is contended, in the first place, that the decree is void on account of being entered in vacation without having been previously submitted and taken under advisement by the court in term time. Conceding that the recitals of the record are not sufficient to bring the case within that feature of the statute (Crawford & Moses Digest, § 2190) which providés that the chancellor may “make and sign decrees in vacation in causes taken under advisement by him at a term of the court,” the record does show that the cause was heard in vacation by consent of the parties, all being present by attorneys before the chancellor. The statute just referred to expressly authorizes the trial and rendition of decrees in vacation by consent. Some of the plaintiffs were infants, but there is no exception in the statute as to infant parties. The statute provides that the parties themselves, or their solicitors of record, may consent to the hearing in vacation, and we find no reason for reading into the statute exceptions in favor of infants. This is a mere matter of procedure in trials of causes which involve no prejudice to the rights of infants by having the hearing in vacation before the chancellor if the counsel for both sides so agree.

The principal controversy arising on the present appeal relates to the decree of the court equalizing the differences between the values of the improved farm lands and compelling each of the parties to account in the final division of the estate for these differences in value. The contention- of appellants is that the improved farm lands were devised to the widow in trust for the several cestuis que trust, regardless of value, and that the differences in value, if any, are not to be taken into account in the division of the other property. The contention of appellees is that the whole of the estate was devised in trust to be equally divided between the parties, and that in carrying out this trust the differences in values of the separate specific tracts of improved farm lands must be equalized and the payment of owelty to he decreed in order to effectuate an equal division of the property. It is claimed on each side of the controversy that this question was adjudicated in the original opinion of this court which became the law of the case. Each side quotes statements from the opinion, which they claim support their respective contentions. The issues involved and the conclusions of this court are clearly stated in the former opinion and show for themselves. There is nothing, we think, in the language of that opinion itself which is decisive of the issue controverted on the present appeal, but we think the effect of the decision of the court upon the issues then involved was an adjudication that the trust had been performed in accordance with the terms, in so far as it related to the improved farm lands and that the remainder of the property was to be divided equally between the children and grandchildren. Appellees, as plaintiffs below, did not ask for an adjudication concerning those lands and it is clear that they treated the trust as being finally accomplished with respect to that portion of the testator’s property, and the relief which they asked for was that they be given an equal division in the remainder of the property. This court merely decreed to them what they asked for, and that necessarily resulted in establishing as the law of the case the decision that the remainder of the property was to be equally divided. Moreover, that is, according to the preponderance of the testimony in the case, what the testator intended in the creation of the trust. He was unable to complete the division of the property according to his wishes, but he selected one character of property which stood in a class by itself and divided that in accordance with his own wishes, and apparently upon his own estimate of the respective claims of his children and grandchildren upon his bounty. There is no conflict in the testimony that he called over the children name by name and specified the particular farms which they were to have. He directed that his crops he sold by his executor and the proceeds equally divided between the children and grandchildren, and that each one be given a mule-or a horse, and that the balance of his property be divided among the children and grandchildren, and repeated the saying in the presence of those assembled that they were to be treated alike — that “a child is a child, ” as he expressed it.

There was nothing- to indicate that his intention was that there be an appraisement of the farm lands and that the differences in values, if any, should be equalized. In other words, it is clear that he intended to make the division himself as far as he was physically able to do so at that time, and that the remainder of the property was to be equally divided. We are of the opinion that the original counsel in the case misconceived the effect of the former decision of this court and put the wrong interpretation on it in holding that the parties were liable for the payment of owelty in the equalization of the values of the improved farm lands. The fact that counsel who originally represented the appellants consented, under a misconception of the law, to an instruction to the master to make a finding as to the relative values of the different tracts of improved farm lands does not bar appellants from objecting to the decree on that account. This direction was not given by way of a compromise settlement of the controversy, but, as before stated, was made under a belief entertained by counsel that such was the effect of the former decree. The parties, notwithstanding that concession, during the further progress of the proceedings had a right to object to the findings of the master and the decree of the court awarding the payment of owelty. No prejudice resulted from this concession during the progress of the proceedings, as the court could and should have corrected the misconception entertained at the time and rendered a decree in accordance with what we find now to be the law of the case. But it is contended now that this was settled against the contention of appellants by the decree entered by the chancellor on April 7, 1919, and that the appeal from that decree was taken too late for this court to review the question. That decree, however, was not final. It merely declared the law with respect to the rights of the parties, but it did not award any particular property to any of the parties and left for future adjudication of the property to be awarded to the parties respectively. The case in that respect falls squarely within the rule announced by this court in Sennett v. Walker, 92 Ark. 607, and also within the rule announced in Branstetter v. Branstetter, 130 Ark. 301. There was no final decree concluding the rights of the parties without further judicial action until the decree of August 21, 1920, and the appeal was taken within six months after that time.

The widow, M. B». E. Stuart, who is one of the appellants, assigns as error the refusal of the court to allow her in the adjustment of the accounts the additional sum of $1,600 which she claims as her separate property in funds turned over to her in the lifetime of her husband in reimbursmeent for her inherited property which he had used for his own purposes. The chancellor found that these funds wore regarded as the property of the testator himself, and as a part of the funds out of which he bequeathed to her the sum of $10,000, in lieu of all other claims, and that conclusion is supported by the evidence.

The contention is also made, on behalf of the widow, that the court erred in failing to decree to her, as her separate property, the funds deposited in bank in the joint names of herself and the testator, and which she now claims by right of survivorship. There was no exception to the report of the master as to this item, and the conclusion is warranted from the proof that these funds were the property of the testator.

An appeal has been prosecuted on behalf of the infant plaintiffs from that part of the decree fixing the amount of the fees of their counsel. The court, in fixing the amount of the fees, seems to have properly taken into consideration the several amounts recovered by these infants under the decree, and, since the effect of our decision is to reduce the amounts recovered by them, it is proper to reverse this part of the decree so as to allow the chancellor to determine the proper amount of the fees based on the amount recovered.

The decree of the chancery court is therefore reversed and the cause remanded with directions, after ascertaining the amount of fees to be charged, to enter a decree in accordance with this opinion.

Hart and Smith, JJ., dissent.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Sellers v. Horney.
    Opinion delivered May 2, 1921.
    Appeal and ERROR — proceedins after remand. — Where a decree in a mortgage foreclosure was reversed with directions to ascertain from the record the amount due for advances to April 30, 1913, to render a decree for same, to declare a lien on the mortgaged property and to foreclose said lien if the judgment is not paid within a reasonable time to be fixed by the court, the chancery court had no power to change or extend such mandate or to render judgment as to advances made after April 30, 1913.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      W. J. Lanier, for appellant.
    The chancery court is bound by the directions in the mandate of this court. It can not add to nor subtract therefrom. 21 Ark. 197; 60 Id. 50 ; 13 Id. 654; 5 Id. 200; 106 Id. 292; 126 Id. 197. That part of the decree allowing judgment for items furnished after April 30, 1913, was error.

      S. S. Hargrmes and Mann & Mown, for appellees.
    The former decree and mandate of this court settle this case. The chancery court has passed on the merits of this case and the decree is final, and the entire contro-’ yersy is settled. 198 S. "W, 961,

      A court of equity having jurisdiction of part of the subject-matter will dispose of the whole case. 30 Ark. 278; 34 Id. 410; 14 Id. 50. Jurisdiction depends on the state of facts existing at the time the suit is brought and will not be ousted by subsequent events. 34 Ark. 410; 52 Id. 541; 92 Id. 15; 99 Id. 438; 105 Id. 558. See, also, 83 Id. 554.
   McCulloch, C. J.

Appellees instituted this action in the chancery court of St. Francis County to foreclose a deed of trust executed by appellant’s intestate conveying certain real property in Forrest City to secure a debt to appellee Horney. The secured debt was evidenced by a promissory note in the sum of $1,000, due and payable on April 30, 1913, which was recited in the deed of trust, but the evidence in the case showed that the note was executed for an indeterminate amount of advances in money to be made by appellee Horney to the mortgagor. On the final hearing of the cause the chancery court rendered a decree foreclosing the mortgage for the full amount of the debt, including advances made after the maturity of the note, but on appeal to this court it was decided that the chancery court erred in including in the decree the amount of advances made after the maturity of the note. The decree was reversed and the cause remanded with directions “to ascertain from this record the amount due for advances to April 30, 1913, render a decree for the same against the estate of I. W. Leggett, deceased, declare the same a lien on the property described in the trust deed, and to foreclose said lien if the said judgment is not paid within á reasonable time to be fixed by the court.”

On the filing of the mandate in the chancery court of St. Francis County, that court, after ascertaining from the record the aggregate amount of advances made up to and including April 30, 1913, with interest to date of decree, also the aggregate amount of advances made after that date, with interest, rendered, a judgment in favor of Homey against the said estate for the whole of said debt, but declared a lien for only the amount of advances made up to April 30, 1913, with, interest, in accordance with tlie directions of the mandate. Appellants objected to that part of tlie decree which covered the amount of advances after April 30, 1913, and they have prosecuted an appeal to this court.

The contention of appellants is that the directions of this court were specific and excluded the power of the court to render any decree except one for the recovery of the amount of advances up to April 30, 1913, with interest, and declaring a lien for that debt. The contention of appellees is that under the pleadings and proof in the case they were entitled to a decree against tlie estate for the full amount of the advances with interest, notwithstanding the fact that only that part of the debt which was for advances up to the date mentioned was a lien under the mortgage, and that the directions of this court did not forbid the lower court from including the whole debt in the decree, that part which was merely for the recovery from the estate of Leggett as well as that part of which constituted a lien under the deed’ of trust. We are of the opinion that the contention of appellants is correct, and that the mandate of this court precluded the chancery court from rendering any decree, except the one directed which was for recovery of the amount of advances up to and including the date mentioned, with interest. The mandate placed a precise limit upon the further proceeding's of the chancery court in this cause and precluded that court from rendering any decree except the one expressly authorized by this court in its mandate. The mandate had the same force as if it had been rendered by this court itself, and the chancery court had no power to change or extend it. Like any other decree it was conclusive of all of the issues involved in the ease. The question now is, what the judgment of this court was on the former appeal, not what it should have been. The case is controlled by the following decisions: Gaither v. Campbell, 94 Ark. 329; McClintock v. Robert son, 98 Ark. 595; Hopson v. Frierson, 106 Ark. 292; LaCotts v. LaCotts, 118 Ark. 558.

The decree of the chancery court is reversed as to that part which relates to the recovery for advances after April 30,1913, since the remainder of the decree is correct and is not appealed from, it is not necessary to remand the canse.


author: Wood, J.

text:
    Maxwell v. Felker.
    Opinion delivered May 2, 1921.
    1. Pleading — exhibits.—In suits in chancery, the exhibits which are the foundation of the action become a fact of the record, and will control the averments of the complaint and the nature of the cause of action.
    2. Evidence — parol evidence to explain written agreement. — In a suit to enforce a written agreement to redeem stock delivered to a bank in consideration of the surrender to the depositor of certain obligations owed by him to the bank, where the agreement is ambiguous on its face, oral testimony is admissible to explain the circumstances of its execution and the intention of the parties to the contract.
    3. Banks and banking — construction of contract. — Evidence that defendant executed an instrument to a bank which recited that “twelve months after date I agree on proper notification to redeem $15,400 Jones Bros. & Co. preferred stock, 8 per cent, on same,” and that defendant deposited preferred stock in the above amount with the bank for an indebtedness of $15,400, and subsequently executed an obligation to the bank in that sum, held to show that the instrument was intended to evidence an obligation to pay the sum of $15,400 on demand with 8 per cent, interest.
    4. Equity — construction of contracts. — Equity looks at the substance, and not the form, in construing contracts, and will discard any mere surplusage and unmeaning words, or supply other words to carry out the obvious intention of the parties.
    Appeal from Benton Chancery Conrt; B. F. McMa-han, Chancellor;
    reversed.

      E. H. Thomas (of Kansas City, Missouri) and Mc-Gill & McGill, for appellant.'
    1. The cause was transeferred to equity, and appel-lee, saving no exceptions to the order and having subsequently filed equitable defenses, can not now object. 74 Ark. 81; 92 Id. 46 ; 101 Id. 461; 105 Id. 669; 123 Id. 255.
    2. Appellant did except to the transfer, and it was error to dismiss the cause if plaintiff was entitled to any relief at law or equity. 93 Ark. 376; 139' Id. 90 ; 107 Id. 70; 87 Id. 206.
    3. It is not necessary that a contract in writing, not within the statute of frauds, shall express a consideration, as it may be proved by parol evidence or be inferred from its terms and obvious import. 6 R. C. L., § 64; 3 Enc. of Ev. 372, note 13. A written obligation for the payment of money imports a consideration and upon an issue of want of consideration the burden is on defendant. 33 Ark. 97; 21 Id. 69'; 8 C. J., § 261. An agreement unilateral in form is not necessarily without mutuality or consideration. 6 R. C. L. 686-7; 119 S. W. 400; 34 Ark. 312; 113 Id. 586.
    4. An agreement is not within the statute of frauds, if it is sufficient as a memorandum. It need not state the consideration unless the statute requires it. The contract here is simply an obligation to buy stock and contains all the elements necessary to satisfy the statute of frauds. 60 A. S. R. 434; 3 Ark. 97; 8 C. J., §§ 259, 260. The agreement furnishes the key by which every material element may be made definite and certain by proof. 85 Ark. 1.
    5. The real nature of the transaction is established by a clear preponderance of the proof. The creditor is not required to return the security before bringing suit. When the debt is satisfied he must release it. The pledgor has the right to redeem and recover the security or pledge by paying the debt. -21 R. C. L. 683-5; 31 Cyc. 858, 862-3; 21 St. Enc. Prac. 460-2; 123 Ark. 528.
    No particular formalities are required to constitute a pledge. The title does not pass to' the pledgee only so far as it is necessary to carry out the purposes of the pledge. 21 R. C. L. 630-4; 31 Cyc. 785-9; 9 Enc. Ev. 856; 98 Ark. 379.

      The renewal of the obligation with an extension of time of payment was a good consideration for the pledge of the stock. 21 R. C. L. 640. The instrument sued on is a direct obligation to pay money which the stock was pledged to secure. It is an obligation to pay money, and the stock was pledged to secure its payment. “Proper notification” means “on demand” or “when called for.” 8 C. J. 404; 18 A. S. ft. 345. See, also, 8 C. J. 530; 83 Ark. 278.
    6. There is no limitation or laches here. If defendant suffered any loss on the collateral by and negligence or wrongful act of the bank he should have set up a counterclaim and offered proof to sustain it. 31 Cyc. 869-70.
    7. The proof shows there was a' consideration for the debt.
    8. Defendant was not released from any claim of the creditors by the conveyance to a trustee for creditors, nor by any agreement with the bank commissioners.

      Dick Bice, Bice & Bice and Duty & Duty, for ap-pellee.
    The complaint does not state a cause of action. The instrument sued on, nothing more than an agreement for the purchase of preferred stock, and falls within the terms of the statute of frauds and must be in writing and complete within itself. The agreement is incomplete and void because no consideration is expressed on its face, and it does not specify the price to be paid for the stock, and because it is not alleged nor proved that “proper notification” was given Felker, nor is it alleged or proved that the stock had any market value. The notes were void. The contract is within the statute of frauds and void. 91 Ark. 445; 107 Id. 629. See, also, 43 N. E. 575; 66 Pac. 914; 32 N. Y. App. Div. 237; 52 N.‘ Y. Supp. 998.
    Redemption implies a subsisting right as against a defeasible claim. 56 Ark. 139; 19 S. W. 497. The contract 'is clearly within the statute’ of frauds. 37 Ark. 145; 99 N. Y. Snpp. 392;'137 Fed. 143; 14 Atl. 671; 200 Fed. 318; 59 So. 191. "The contract does not fix the price; this is essential. Pomeroy on Cont., § 148; 107 Pac. 874. See, also, 45 S. W. 303; 36 Okla. 429; 128 Pac. 1086.
    There is no allegation nor proof that Felker’s proposition was accepted. 100 Ark. 510; 140- S. W. 590.
    Mutuality of contract must be shown or there is no binding obligation. 69 Wis. 43; 33 N. W. 110; 5 Atl. Rep. 103; 30 Ark. 194. A mere offer, unassented to, is not a contract; there must be acceptance. 92 N. E. 178. See, also, 131 Pac. 76; 137 Id. 1082; 170 N. C. 510; 87 S. E. Rep. 334.
    No cause of action is stated, as there is no allegation of value of stock; nor is there any allegation that the stock is worthless. 36 Cyc. 560-1. If this is an action for damages for breach of contract, the measure of damages is the difference between the market value of the stock at the time it was agreed to be delivered to defendant and the sale price thereof. 100 Ark. 510; 140 S. W. 590; 98 Id. 546; 29'N. E. 760; 95 Pac. 803; 101 Id. 568.
    A contract for sale of stock which can be obtained in the market will not generally be specifically enforced, as the buyer and seller has a sufficient remedy at law. Waterman on Spec. Perf. of Cont., § 19.
    There is no allegation of damage in the complaint; no damage is shown. 29 N. E. Rep. 760.
   Wood, J.

On Janaury 20, 1920, the appellant, as bank commissioner of the State of Arkansas, filed in the Benton Circuit Court an “amended complaint” in which he alleged “that the affairs of the Citizens Bank of Rogers, Benton County, Arkansas, were, .on the 16th day of July, 1914, duly placed in charge of the Bank Commissioner of the State of Arkansas as an insolvent bank, for the purpose of liquidating its affairs, and that all of its assets were taken charge of by the Bank Commissioner, who has since that time been liquidating the same, but its affairs have never been fully liquidated and wound up. That among the assets of said bank are 154 shares of preferred stock of Jones Brothers & Company, an Arkansas corporation, which were duly issued by said corporation to the defendant, J. E. Felker. Said shares of stock were issued and delivered to the said J. E. Felker as fully paid up stock; that the said J. E. Felker, in consideration of the surrender to him by the said Citizens Bank of Rogers of certain obligations which he owed the said bank, on or about March 24,1913, delivered to and deposited with said bank the said shares of stock together with a written agreement and obligation by the terms of which he obligated himself, after twelve months from said date on proper notification of said bank, to redeem said stock together with eight per cent, interest on the same; that the said agreement came into the possession and control of the said Bank Commissioner, together with the said shares of stock, as a part of the assets of said insolvent bank; that the said shares of stock had no market value when deposited m the hank or afterward, and never were worth half the amount of said notes and afterward became worthless; that, at the end of the first year after receiving the said agreement and shares of stock, the defendant, J. E. Felker, was not ready to redeem the same, but executed and delivered to said bank his note covering the interest on said shares of stock up to the date of the execution of said note, which note is also a part of the assets of said bank and is in the possession and control of the planitiff herein; that, after said bank was placed in charge of the Bank Commissioner as aforesaid,, the said commissioner duly notified the defendant as required by said agreement and demanded the redemption of said shares of stock by the payment of the face value thereof and interest, but the said J. E. Felker has failed and refused to redeem the same or to pay the amount required therefor and had not paid anything up to the filing of the original complaint in this action which was on the 19th day of August, 1918, and has made no payment since that time; that the plaintiff has always been ready to receive the amount required to redeem said stock and thereupon to deliver said stock to said defendant and holds the same subject to the orders of the court for that purpose.” The prayer of the complaint was for judgment in the sum of $15,400.

The written agreement and obligation under which the shares of stock were delivered to and deposited with the Citizens Bank of Rogers, and which' came into the hands of the Bank Commissioner was made an exhibit to the complaint and is as follows:

“Rogers, Arkansas, January 2, 1913.

Citizens Bank,

“Rogers, Arkansas.

Gentlemen:

‘ ‘ Twelve months after date I agree on proper notification to redeem $15,400 Jones Bros. & Co. preferred stock-8 per cent, on same.

“J. E. Felker.”

The cause on motion of the appellee was transferred to the chancery court. The appellee filed an answer in which he set up, among other things, that the agreement sued on is within the statute of frauds and void; that the cause of action is barred by laches and the statute of limitations, and that the contract sued on is void for want of consideration; that plaintiff is estopped, and that all indebtedness to the plaintiff had been paid. . Embraced in the answer was also a demurrer to the complaint.

The decree recites as follows: ‘ ‘ The cause was heard on the amended complaint of plaintiff, demurrer and answer of defendant, and the evidence adduced, the complaint being by the court treated as amended to conform to the proof. The court sustained the defendant’s demurrer to the complaint of the plaintiff on the obligation sued on, being a suit for the collection of $15,400 with accrued interest, on the ground that said complaint does not state facts to constitute a cause of action either in law or equity; and the plaintiff’s complaint being treated as amended to correspond to the proof, said cause is dismissed.” From that decree is this appeal.

The record shows that the court, on motion of the appellee, struck out the interlineation to the complaint, which alleged that “the said shares had no market value when deposited in the bank or afterward and never were worth the amount of said notes and afterward became worthless.” But after this ruling the court heard the cause on the amended complaint, treating the same “as amended to conform to the proof.”

There was testimony on behalf of the appellant to the effect that at the time the 154 shares of stock were deposited in the Citizens Bank of Rogers such stock had no market value, and that the appellee and the officials of the bank knew this.

We have set forth the amended complaint as it appeared before the above interlineation was stricken out, for it appears that the lower court treated it as if it contained the above allegation, “that the stock had no market value, etc,” and we must so treat it.

There was also testimony to the effect that when the 154 shares of Jones Brothers & Company preferred stock — the $15,400 — was delivered to and deposited by the appellee with the Citizens Bank of Rogers, it surrendered to him cancelled obligations to the bank for a like sum. But the testimony of the appellee further shows that, when the exchange was made, he executed the instrument, supra, which is exhibited with the complaint and is the foundation of this action. And he subsequently executed a note which was made up in part of, and included in it, the interest for one year on an obligation to the bank in the exact sum of $15,400. “In suits in chancery, the exhibits, which are the foundation of the action, become a part of the record, and will control the averments of the complaint and the nature of the cause of action.” Cox v. Smith, 99 Ark. 218, and cases there cited.

Now, the instrument set out above, to say the least, is ambiguous on its face. Oral testimony was admissible for the purpose of explaining the circumstances of its execution and the intention of the parties to the contract. Massey v. Dixon, 81 Ark. 337; Jones v. Lewis, 89 Ark. 368; New York Life Ins. Co. v. Allen, 143 Ark. 143-152.

There was testimony that appellee at the time of the transaction, was solvent. Since the stock of Jones Brothers & Company had no market value — was worthless — it is unbelievable that the officers of the bank, knowing such facts, would have accepted such stock as collateral to, much less in exchange and payment of, the notes of appellee to the bank. Even if they had done so, there was no necessity for, and no sense in, the transaction assuming the form of the obligation in suit. The subsequent execution of the note for accrued interest on $15,400 shows that the instrument under consideration was intended by the parties as an unconditional and binding obligation for the payment of the sum of $15,400. Whatever may have been the purpose of the bank and the appellee in changing the form by which the indebtedness of the appellee to the bank was evidenced, it was certainly not their intention to release the appellee from his primary obligation tó pay the bank the sum of $15,-400. On the contrary, we are convinced that the only reasonable conclusion is that the instrument sued on was intended to evidence an obligation on the part of the appellee to pay to the Citizens Bank of Rogers, Arkansas, the sum of $15,400 on demand, with interest.

Equity looks at the substance and not at the form, and will discard any mere surplus and unmeaning words, or supply other words to carry out the obvious intention of-the parties. Therefore, the words “proper notification” in the instrument were surplusage and could have no other purpose than if the words had been “on demand or notice. ’ ’ In the- light of the testimony showing the intention of the parties to the transaction, and to effectuate such intention, we agree with the learned counsel for the appellant; that the instrument should be interpreted the same as if it had the following form:

Twelve months after date I promise to pay to the Citizens Bank of Rogers, Arkansas, the sum of fifteen thousand four hundred- and no/100 dollars, with interest at the rate of 8 per cent, per annum, for the redemption of $15,400 Jones Brothers & Company preferred stock.

The instrument so construed explains and controls the allegations of the complaint by which it is sought to enforce the obligation. It follows that the court erred in holding that the complaint did not state a cause of action and in sustaining the demurrer to the complaint. The decree is, therefore, reversed and the cause remanded with directions to overrule the demurrer to the complaint.


author: Hart, J.

text:
    Payne v. Cotner.
    Opinion delivered May 2, 1921.
    1. Commerce — cattle inspection laws. — The Federal act requiring the inspection of cattle shipped in interstate commerce for fever ticks, and the isolation of those infected with such ticks in separate pens (U. S. Comp. Stat., §§ 850, 8690-97), is valid.
    2. Carriers — cattle infection — jury question. — In an action against a carrier for damages resulting from delay in delivery of a shipment of cattle caused by their detention at destination on account of having fever ticks, testimony of plaintiff tending to prove that the cattle were free from ticks when shipped tends to contradict the testimony of the United States inspector that he found a fever tick on a cow on arrival of shipment, and hence the evidence as to finding the tick is not undisputed so as to take the question from the jury.
    3. Evidence — judicial notice — laws of nature. — Appellate courts will take judicial notice of a law of nature, such as. that it takes two weeks for an adult cattle tick to develop, and that the development must take place on the animal.
    4. Carriers — cattle infection — evidence.—In an action against a carrier for damages caused by detention of cattle in quarantine, evidence held to establish that, if a cow was infected with cattle ticks as claimed by a United States inspector, the cow was not free from ticks when received for shipment.
    5. Carriers — liability for mistake of inspector. — A railroad company is bound by the rules and regulations of the interstate shipment of cattle promulgated by the Secretary of Agriculture, and can not be held liable in damages resulting from delay in delivering the cattle at destination due to mistake of a United States inspector in quarantining cattle on arrival of the shipment, in the absence of fraud or collusion on the company’s part.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judge;
    reversed.
    STATEMENT OE FACTS.
    On July 7, 1918, appellees delivered at the railroad station at Booneville, Arkansas, forty-one head of cattle consigned to the National Live Stock Commission Company at Kansas City, Mo. Appellees received a through bill of lading, and-the shipment was routed over the lines of the Chicago, Rock Island & Pacific Ry. Co. to Howe, Oída., and from there over the line of the Kansas City Southern Ry. Co. to Kansas City, Mo. When they reached their destination the live stock inspector for the Bureau of Animal Industry ordered the car unloaded in quarantine pens because one of the cows had fever ticks on her. This affected the price of the cattle, and appellees had to sell them at a loss. They brought this suit against the appellant to recover damages.
    Appellees' were witnesses for themselves. According to their testimony, they were engaged in the live stock business near Booneville, Ark., and on July 7, 1918, they delivered to the railroad company, at its station, forty-one head of cattle to be shipped to Kansas City, Mo., and received a through bill of lading therefor. The animals had been thoroughly dipped as required by the regulations of the United States G-overnment and were free from ticks. Appellees in all respects complied with the regulations for dipping cattle and examined them and saw that they were free from ticks at the time they were delivered to the railroad company for shipment.
    Logan County, Ark., had been pronounced clean territory and free from ticks, by the government authorities, although a few cattle ticks would be discovered in that territory from time to time. Because the United States inspector claimed to have discovered a cattle tick on one of the cows shipped, he required the shipment of cattle to be placed in quarantine and on that account ap-pellees received less for the cattle than they would have received had the cattle been unloaded in pens used for receiving clean cattle, or cattle free from ticks.
    Joseph Burns, was a witness for appellant. In July, 1918, he was live stock inspector for the Bureau of Animal Industry in the employment of the United States and was stationed at .Kansas City, Mo. He was known as a lay inspector and his duties were to inspect cattle, hogs and sheep when they were unloaded at the chutes by the railroad company. He had a civil service appointment under the United States Government and had been engaged in this work for nearly six years. He had received training for the work under a veterinary specialist. He inspected the car of cattle in question before allowing the cattle to be unloaded at the chutes and found live Texas fever ticks on one cow. The cattle had been shipped as clean cattle, but he required them to be unloaded in the quarantine pens on account of discovering the ticks on the cow. If the cattle had been clean cattle or free from ticks, Burns would not have required them to be unloaded in quarantine pens.
    E. J. Carey, a veterinary inspector under the United States Bureau of Animal Industry, had supervision over the Kansas City Stock Yards in July, 1918, and had been engaged in work of that character for twenty years. During all of this time he had been an employee of the United States in.this kind of work. George Burns was an inspector under him at Kansas City, Mo., in July, 1918. About the 7th or 8th of July, 1918, Burns brought the witness a tick which he reported he had gotten off of a cow in the shipment of cattle involved in this lawsuit. Carey placed the tick in a bottle and had it present at the trial. The tick could not have gotten on the cow1 between the 6th of July, 1918, and the time it was taken off on the 9th day of July, 1918. The reason is because the Texas fever tick has to go through stages of development on the animal. It does not develop on the ground when it is hatched. After it gets on an animal it takes two weeks to develop to tlie size of tlie tick referred to. A tick goes through, two molts. The seed tick gets oil the animal and it takes fifteen days to get through its first molt. In other words, it sheds its skin and it takes from five to eight days to go through its second molt. After it has matured on one cow, it can not become detached and attach itself to another animal. The reason is that when the Texas fever tick becomes attached to an animal it can not come off of the animal until it reaches maturity and is gorged with blood so that it lets loose of its own accord. The tick in question had been at least two weeks on the animal upon which it was found.
    Other expert witnesses corroborated the testimony of Dr. Carey in respect to the development of the Texas cattle tick.
    The jury returned a verdict for appellees and to reverse the judgment rendered, appellant has duly prosecuted this appeal.

      Thos. 8. Busbee and George B. Pugh, for appellant.
    1. A verdict should have been directed for appellant under the undisputed evidence.
    2. The undisputed evidence shows that an adult cattle tick could not have gotten on one of the cows between the date of the shipment and the date of the arrival of the cattle, only three days en route. The court erred in giving instruction No. 1 for appellees and in refusing No. 2 for appellant. 75 Atl. 352; 26 L. R. A. (N. S.) 712; 57 Ark. 402.
    3. No evidence of negligence on the part of the carrier was shown, but the evidence shows due care and absence of negligence and no liability whatever. 112 Ark. 298-300. The question of negligence should at least have been submitted to the jury as requested by appellant.

      Evans & Evans, for appellees.
    1. This court will take judicial knowledge of the rules and regulations of the United States Secretary of Agriculture and Bureau of Animal Industry. Sapps’ Federal Rules and Reg., pp. 19-20.

      The court properly refused to direct a verdict for appellant. If Carey and Driver are experts, their testimony pan not have any more force than the testimony of any other expert opinion witness. 50 Ark. 511. The jury are not hound to accept the conclusion of experts. The testimony of scientific witnesses is not always reliable, and at last the jury are the judges of the facts. There was no basis for the testimony of the experts, Carey or Driver. Under the law and evidence there was no error in refusing to direct a verdict against plaintiff. 105 Ark. 526.
    2. The verdict is supported by a clear preponderance of the testimony. 119 Ark. 6. A verdict is final on review or appeal. 89 Ark. Ill; 110 Id. 632; 1 Crawford’s Digest, 297.
    3. There is no error in the instructions; they state the law. 110 Ark. 269; 139 Id. 143; 100 Id. 269; 81 Id. 469; 112 Id. 298.
   Hart, J.

(after stating the facts). Under the act of Congress regulating the shipment of live stock from one State to another, the Secretary of Agriculture is authorized to establish rules and regulations concerning the exportation and transportation of live stock from one State to another where he may have reason to believe certain contagious diseases exist.

Pursuant to this authority the United States Bureau of Animal Industry appointed an inspector with supervision over the Kansas City Stock Yards at Kansas City, Mo. His duties required him to inspect all cattle from southern points before they were unloaded and to place cattle which were clean and free from ticks in certain pens and those infected with fever ticks in other pens. Such laws are valid. K. C. S. Ry. Co. v. State, 90 Ark. 343, and Reid v. Colorado, 187 U. S. 137.

Pursuant to the authority conferred by the act of Congress, the shipment of cattle in question was inspected when it arrived at Kansas City. Burns testified that he found a Texas fever tick on one of the cows and on that account had the cattle unloaded in quarantine. On this account appellees sold the cattle at a loss. Hence this lawsuit.

Counsel contend that a verdict should have been directed in appellant’s favor under the undisputed evidence. Of course, if the undisputed evidence showed that a cattle tick was found on one of the cows and did not get on the cow en route, appellant would not be liable because the cattle were placed in quarantine pursuant to an act of Congress.

In the first place, it is contended by counsel for appellant that the undisputed evidence shows that a cattle tick was found' on one of the cows upon the arrival of the consignment at the chutes. They point to the fact that the United States inspector testified to that fact, that he is a disinterested witness, and that there is nothing in his testimony which tends to contradict him. This is true, but that does not make his testimony uncontra-dicted. The cattle were shipped from clean territory and were billed as clean cattle. Appellees testified that they had dipped the cattle strictly according to regulations before they were shipped; that they examined them carefully at the time of shipment, and that they were free from ticks. This testimony tends to contradict the testimony of Burns, the United States inspector. Mo. Pac. Rd. Co. v. Block, 142 Ark. 127.

Again it is contended by counsel for appellant that the judgment must be reversed because the undisputed evidence shows that an adult cattle tick could not have gotten on one of the cows between the dato of shipment and the date of the arrival of the cattle at Kansas City, Mo. The cattle were only three days en route.

In this contention we think they are correct. In St. Louis S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, the court held that appellate courts will take notice of the unquestioned laws of nature, of mathematics and the like. In the application of that rule to the facts of the present case, the court will take notice of the unquestioned laws of science. Dr; Carey testified, without objection, that the inspector delivered to him an adult cattle tick which he had taken from one of the cows of appellees at the stock yards before he allowed the car of cattle to he unloaded. So it may be taken as established that an adult cattle tick was found on the shipment of cattle in question by the United States inspector. The expert witnesses testified that it would take two weeks for the tick to have developed. They point out that the tick only develops while on the animal. Thus it will be seen that it is a scientific fact that it takes two weeks for an adult cattle tick to be developed and that the development must take place on the animal. Therefore, the undisputed evidence shows that if an adult cattle tick was found upon the animal by the inspector, it could not have gotten on the animal en route.

Counsel for appellees insist that the laws of science sometimes change. It is sufficient answer to this to say that in this respect the law has not yet been questioned and is a scientific fact. The expert witnesses all agree that it is impossible as a scientific fact for a seed tick to develop into an adult tick in less than two weeks and that the molting process must take place on the animal. Therefore, the undisputed evidence shows that, if the tick was on the animal, it was there before the cattle were delivered to the railroad company for shipment, and the railroad company was not guilty of any negligence in the premises while the cattle were in its possession for shipment and delivery to the consignee. Liability then could only be predicated on the theory that the cattle were free from ticks when they were received for shipment. As we have already seen, the testimony of the United States inspector to the effect that he found a cattle tick on one of the cows at the unloading of the chute in Kansas City is not undisputed, but it does not follow that the railroad company would be liable on that account. While the testimony in this respect is not undisputed, still there is nothing to show that the railroad company acted in collusion with him in the premises. In the absence of such a showing, the railroad company would not be liable. The railroad company was bound by the rules and regulations promulgated by the Secretary of Agriculture, and it could not be held liable in damages for a mistake of one of the inspectors of the United States in the absence of fraud and collusion on the part of the railroad company.

There is nothing in the record tending in the remotest degree to establish this charge. Indeed the evidence shows the utmost good faith on the part of the. railroad' company.

It follows that the judgment must be reversed and the cause remanded for a new trial.


text:
    Upton v. Wimbrow.
    Opinion delivered May 2, 1921.
    TRESPASS — TREBLE damages. — Under Crawford & Moses’ Digest, § 10320, providing for treble ■ damages for cutting timber on another’s land and § 10322, providing that if defendant had probable cause to believe that the land was his own, only single damages should be recovered, held that where defendant in good faith accepted a previous survey as marking the true line, not knowing that there was an error in the survey, treble damages were not recoverable for cutting timber up to such line.
    Appeal from Sevier Circuit'Court; Jamies 8. Steel, Judge;
    affirmed.
    STATEMENT OE PACTS.
    Frank Upton sued John Wimbrow in the circuit court in an action of trespass to recover damages for cutting and removing a quantity of trees from his land.
    The action was based upon sections 10320-10322 of Crawford & Moses’ Digest. Wimbrow cut from Upton’s land a number of hickory trees, amounting in the aggregate to 76,652 feet, of the value of $613.21, and converted the same to his own use.
    According to the testimony of Upton, his boundary line was plainly marked by blazes cut on the trees, and it was easy to ascertain where his boundary line was. Other evidence was adduced by him tending to show that Ms boundary line was plainly marked, and that it was easy to see the blazes on the trees marking it.
    According* to the testimony of Wimbrow, he is engaged in the sawmill business and had been cutting timber for the Pinepole and Shaft Company for four years. That company would furnish him stumpage, and he would sell it the lumber cut by his mill. He bought some timber from that company in Sevier County, Ark., and directed his cutters not to cut over the line shown them. .Before Wimbrow purchased the timber, the Pinepole and Shaft Company had had the land on which it stood surveyed and the boundary line marked by Tom Cash. Wimbrow told his timber cutters to follow the line established by Tom Cash which was plainly marked on the trees by blazes made by him. Wimbrow did not know that the timber in question was owned by Upton or claimed by him until after he had cut and removed it from the land. lie did not go upon the land himself and did not notice the old blazes which marked Upton’s boundary line.
    Tom Cash was also a witness for Wimbrow. According to his testimony, while he was not a regular surveyor and timber estimator, he did nearly all of that work for the Pinepole and Shaft Company. That company sent him to survey its land situated next to Upton’s land. He made the survey and marked the -boundary line of the company by hacking, or blazing the trees. After he made the survey and established the line of the company, it sold the timber to Wimbrow. Subsequently it was ascertained that Wimbrow had cut and removed trees from Upton’s land. None of the trees cut and removed by Wimbrow, however, were beyond the line established by Cash. After it was ascertained that Wimbrow had cut and removed trees from Upton’s land, Cash went back and further examined the land and found that he had made a mistake in establishing the boundary line. There was a jog or a fractional part of a section next to the land surveyed by him, and this caused him to make the mistake. Cash did not notice the old blazes on the trees which had been formerly put there to establish Upton’s boundary line.
    Evidence was introduced in rebuttal by Upton tending to show that a good surveyor could have easily discovered the jog next to the company’s land and need not have made any mistake in establishing the boundary line.
    The jury returned a verdict for Upton in the sum of $613.21, and from the judgment rendered, Upton has appealed.

      E. K. Edwards and B. E. Isbell, for appellant.
    The court erred in not allowing plaintiff treble damages for the trespass. The instructions, 2, 3 and 4, asked by plaintiff and refused are in the language of the statute as construed by this court and embody the law, and it was error to refuse them. C. & M. Digest, §§ 320-2; 96 Ark. 87; 116 Id. 207. The lines of the land were clearly blazed, and the fence put Wimbrow on notice of the line, which he could not disregard, and he is liable. 130 Ark. 550; 132 Id. 474. A man can not be deprived of his property without his consent or by due operation of law. 65 Ark. 451. See, also, 96 Ark. 87.
    Treble damages were recoverable. 116 Ark. 207; 105 Id. 157.
    The holding of the court that the evidence for treble damages is clearly erroneous.

      Lake & Lake, for appellee.
    The court properly refused to submit the question of treble damages to the jury. This is fully sustained by-the evidence. 73 Ark. 464; 31 Id. 286; 101 Id. 36.
    The measure of damages for the conversion of timber is its value at the time and place of conversion if the cutting is done in good faith, but if in bad faith the enhanced value of the timber may be recovered. 117 Ark. 127. It is not true that if appellee, having admitted the cutting, the burden of proving probable cause for believing he had authority to cut and carry away the timber,'was on appellee. 101 Ark. 36; 96 Id. 47.

      The evidence does not support a verdict for any penalty.
   Hart, J.

(after stating the facts), It is the contention of the plaintiff, Upton, that the court erred in not allowing him treble damages for the trespass. The plaintiff relies on section 10320 of Crawford & Moses’ Digest, which provides, in substance, that if any person shall cut down or remove any timber growing on the land of another, every person so trespassing shall pay the party injured treble its value.

Section 10322 of Crawford & Moses’ Digest provides that if, on the trial of any action brought under the provisions of the act, it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed is his own, the plaintiff shall recover single damages only.

In construing a statute in all essential respects similar to our own, and in which it was provided that if it should appear that the defendant had probable cause to believe that the land on which the trespass was committed was his own, the plaintiff should recover single damages only, the Supreme Court of Michigan held that the right of the plaintiff to recover treble damages would depend upon the good faith of the defendant. Wallace v. Finch, 24 Mich. 255. Mr. Justice Graves, who delivered the opinion of the court, in discussing the statute said that no element of wilfulness could avail the defendant from legal liability for single damages under the statute. Continuing the learned justice said:

“The question of treble damages, however, stands on a different principle altogether. When this law gives single damages, it has a single object, and that is to redress the injured party. But when the damages are to be trebled, the object is two-fold, namely: to redress the injury done, and also to punish the wrong-doer. No other explanation of these provisions is possible, and, according to well settled rules, when a law is susceptible of penal applications in special cases, such applications of it ought to be closely confined..to cases within its principle. Now, when we come to interpret this statute, we must either hold' that the Legislature meant that any person, however blameless in a moral point of view, who should be within the inculpatory words of the first section, and not within the exact words of the saving provisions of the second section, should be punished; or, on the contrary, that the Legislature meant that the penal application should be made only in cases marked by wantonness, wilfulness or evil design. And it is hardly admissible to impute the former purpose to the Legislature.

Indeed, the nature of the limitations contained in the second section indicates very clearly that no such purpose was contemplated. Those limitations all point to the exclusion of the penal application where the trespass is not aggravated by bad faith or other positive blame, and they amount to a legislative intimation that the penal provisions were not intended to apply where punishment beyond redress for injury would he inapt, impolitic and unjust.”

In Barnes v. Jones, 51 Cal. 303, it was held that the lower court erred in trebling the damages, and the court held that, while the statute in that State did not so state, in express terms, it was clear that it was not intended to apply to cases in which the trespass was committed through an innocent mistake as to the boundary of a tract of land claimed by the defendant.

In Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174, the court said that to subject a party to the penalty prescribed by statute it must appear that the act was done knowingly and wilfully and not through mistake or accident.

In Perkins v. Hackleman, 26 Miss. 41, 59 Am. Dec. 243, the court held that a party supposing himself to be cutting timber on his own land, but by mistake cutting on another’s land, is liable for acutal damages only. In construing such a statute in the case of Whitecraft v. Vandever, 12 Ill. 235, the court said:

“The object of the statute is to furnish an additional remedy to the owner of the land, and also to punish the wrong-doer.

‘ ‘ To subject a party to such punishment, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence. It could never have been the intention of the Legislature to impose a penalty upon a person, who, supposing in good faith that he was cutting upon his own land after having taken reasonable pains to ascertain its boundaries, should, inadvertently and by mistake, cut trees upon the land of another.”

In Russell v. Irby, 13 Ala. 131, the court said that the general tenor of the statute was such as wholly to preclude the idea that it was designed to apply to unintentional trespasses. These decisions construing similar statutes in other States are in accord with the decision of this court in Fogel v. Butler, 96 Ark. 87.

There is nothing in the record in the present case tending to show that the defendant cut the timber knowing that he had no authority to do so, or without having probable cause to believe it to be his own. He cautioned his timber cutters not to go beyond the line established by Tom Cash, which he believed to be his boundary line. Cash had been employed by the Pinep ole and Shaft Company to establish the line before that company sold the timber to Wimbrow. There is nothing in the record tending to show that Wimbrow had any reason to believe that Cash was negligent in making the survey. He made the survey before Wimbrow purchased the timber, and for the very purpose of establishing the boundary line. There is nothing tending to show that Wimbrow knew that Cash had been guilty of negligence in making the survey, or that he had anything to do with making it. He simply took the line shown Mm as the true boundary, and there is nothing in the record tending to impeach his good faith in the matter.

The court properly allowed the plaintiff to recover only single damages under the facts disclosed by the record. The -undisputed facts show that the defendant had probable cause to believe that the land on which the timber in question was cut was his own.

Therefore it is unnecessary to consider or discuss •the instructions given or asked on the question of treble damages.

It follows that the judgment must be affirmed.


author: Smith, J. McCulloch, C. J.,

text:
    DeLoach v. Ozark Mutual Life Insurance Company.
    Opinion delivered May 2, 1921.

      1. INSURANCE -7- BENEFIT INSURANCE — MISSTATEMENT AS TO AGE.— Where the by-laws of a benfit insurance company prohibited admitting a member above 60 years of age, the company is not bound by a certificate of insurance, issued to a member over that age whose application contained a false statement as to his age, whether the false statement be held a representation or a warranty.
    2. Insurance — misstatement as to age — recovery of premiums.— Where a benefit certificate was not binding on the insurer by reason of a false statement that the insured was within the insurable age, the premiums paid may be recovered where the misstatement as to insured’s age was not made wilfully or fraudulently. o
    Appeal from Polk -Circuit Court; Jmnes 8. Steel, Judge;
    affirmed.

      Norwood, & Alley', for appellant.
    1. The certificates do not contain any forfeiture clause, and the language of the applications and certificates do not amount to a warranty that will render the certificates void because of an honest mistake as to the age of the insured. An insurance policy is construed most strongly against the insurer. 134 Ark. 245; 80 Id. 49; 134 Id. 245; 113 Id. 174; 86 Id. 115.
    2. Forfeitures are not favored, and if the contract does not specifically and definitely provide for such forfeiture the court will not read a forfeiture into the contract. 89 Ark. 479; 89 Md. 624.,

      3. The certificates were valid, although the assured was older than the maximum age limit fixed by the laws of the appellee association. 134 Ark. 245; 105 Id. 143. The certificate will prevail in the absence of proof that the certificate is in conflict with the charter or articles of association. 105 Ark. 143. Certificates can not be treated as valid for one purpose of collecting assessments and invalid to escape liability. 74 Ark. 190; 70 la. 455; 120 Ill. 121. A party can not ratify and repudiate the same transaction. 47 Ark. 301. The certificates were not declared void on account of any fraud but because the insured was over the age limit as declared by the by-laws, and appellee should have returned at least the premiums paid. 3 L. E. A. (N. S.) 114. See, also, 32 Id. 298; 88 N. E. Eep. 97. The certificates were not void and appel-lee is liable.

      Minor Pipkin, for appellee.
    The certificates were void, and there can be no recovery because of a breach of the warranty. 14 E. C. L., § 207; 63 N. Y. 404 ; 31 Me. 219; 58 Ark. 526. They are void for false representations of material matters. Elliott’s Law of Ins., § 37; 126 Mass. 316. They were void because applicant was not eligible to membership. 39 Minn. 303; 92 Wis. 577; 47 L. E. A. 681. When a policy is void by reason of breach of warranty, the premiums paid can not be recovered back. Dalo 98; Poe 634; 10 Ill. App. 431, 441.
   Smith, J.

.Appellant DeLoach made application for two certificates of membership in the Ozark Mutual Life Association, hereinafter referred to as the company, on the life of his mother. The certificates were issued, and the insured died April 19, 1919. The proof of death thereafter made disclosed the fact that Mrs. DeLoach was past sixty years of age at the time of the issuance of the certificate, and that information thus acquired was the first knowledge the company had that the insured’s true age had not been correctly stated in the applications.

The applications for the certificates contained the following recitals: “To make certificate valid the questions in the application must be answered correctly.”

And further: “I hereby make application to the Ozark Mutual Life Association for membership in the same, and in doing so certify that the following statements are made and questions answered correctly as a basis for obtaining same: Name, Telithy Emily DeLoach, age 60.”

Another clause in the application is to the effect that “It is hereby understood and agreed that this application, upon its acceptance, is a part of the contract and warranty by the member, and that no agent or other person has any authority to waive or dispense true and correct answers in writing hereon to any of the questions above set forth.”

At the time the applications for the certificates were executed there was in force a by-law of the company as follows: ‘ ‘ This organization, being founded purely upon a mutual basis and being governed in a representative manner, those eligible for membership shall be of the white or Caucasian race, between the ages of ten and sixty years, inclusive, counting from the nearest birthday. ’ ’

All the statements herein recited appear in the agreed statement of facts upon which the case was tried before the court without a jury, and it was therein stipulated that DeLoach did not knowingly or wilfully misrepresent his mother’s age when the applications were made.

The court rendered judgment in favor of the company on the certificates, but gave judgment against the company for the amount of the premiums paid, and both DeLoach and the company have appealed.

"We think the judgment of the court below should be affirmed in its entirety.

The company had the right to rely on the statement that the party proposed for insurance was of an insurable age, and it had no knowledge to the contrary until the proofs of death were made. In this respect the case differs from that of Mutual Aid Union v. Blacknall, 129 Ark. 450 (same case, first appeal, 123 Ark. 377), in which case the applicant for the insurance gave his correct age, but the agent of the insurance company, instead of writing into the application the age as given to him, wrote down an age which was within the limit prescribed by the company beyond which it did not accept applications. We there held that, in the absence of collusion between the applicant and the agnnt, the company would be charged with the knowledge thus acquired by its agent and would be held to have waived the inhibition contained in the policy against insuring a person of the applicant’s true age.

Appellant DeLoach cites and relies on the case of Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245. But that case does not control here. In that case the jury might have found that the insured was fifty-three years of age, as stated in his application, or that he was fifty-nine years of age, as the proof on the part of' the company tended to show. The policy in that case contained the following provision in regard to age: “4. Age. If the age of the insured has been misstated, the amount payable hereunder shall be. such as the premium paid would have purchased at the correct age, provided, the age at the time insured is not over sixty years.” It was not shown or contended in that case that the insured was past sixty. It was shown, however, that the company had an age limit of fifty-five years on a policy of the kind there sued on, and that the company prescribed no rate of premiums on policies of that kind on persons over fifty-five years of age.

The contention of the company in that case was that, if there was a misstatement of age, and the age of the applicant exceeded the maximum limit on such policies, there could be no recovery, for the reason that the premium paid by the insured would not have purchased insurance in any sum according to the insured’s correct ago. On behalf of the plaintiff, the owner of the policy by assignment, it was contended that a recovery of the full amount of the policy was allowed, notwithstanding the misstatement of the age, for the reason that the company did not show that a policy for a similar sum was purchasable according to the limited payment plan — the plan on which the policy was issued. We sustained the contention of the plaintiff and assigned as our reason therefor that the effect of the clause in regard to the age, set out above, was to provide for a lessening of the amount provided the age of the -insured was not over sixty years, and that it devolved upon the company, in order to obtain any advantage under this clause, to show that there was a purchasable policy according to the plan adopted at the true age of the insured. In other words, that there was a liability for the amount named in the face of the policy unless it could be lessened so as to be reduced to such an amount of insurance as the premium paid “would have purchased at the correct age,” and that unless that premium would have purchased a policy for a less sum the liability for the full-amount continued.

But we have here no such clause to construe. On the contrary, the applicable clause requires the applicant to be under sixty to be eligible to membership.

The parties litigant debate the question whether the statement in regard to the age of the insured was a representation or a warranty. But we pretermit a decision of that question, as we think the law governing the facts herein recited is correctly stated in Joyce on Insurance, vol. 3 (2 ed.), page 3258. It is there said: “And if the by-laws of a benefit insurance company prohibit it from receiving a member above a certain age, the society.is not bound by a certificate of insurance issued to a member over that age, whose application contained a false statement as to his age. So a misstatement as to age, where insured was over the insurable age of admission to a society, will constitute a defense, irrespective of the question whether such false statement be held a representation or warranty.”

The case of Pirrung v. Supreme Council of Catholic Mut. Ben. Assn., 93 N. Y. Supp. 575, fully' supports the text just quoted. There McLennan, P. J., speaking for the Supreme Court of New York, Appellate Division, said: “We think under such circumstances (that is, that the company had, by no act of its own, induced one to become a member who was not eligible) it must be held as a matter of law that if John Pirrung was in fact oyer fifty years of age at the time he made his application and was initiated into the defendant association he was ineligible, and that the defendant, not being aware of the fact, did not become liable on account of the certificate of membership issued to him; and that this is so entirely independent of whether or not his statement as to his age be regarded as a warranty or as a representation-only. Meehan v. Supreme Council, 95 App. Div. 142, 88 N. Y. Supp. 821.

See, also, 1 Bacon on Life & Accident Ins., section 278; Sweet v. Citizens Mutual Belief Society, 7 Atl. 394; Waltz v. Workmen’s etc., Benefit Fund, 139 N. Y. Supp. 1016; Marcoux v. Society of St. John, 39 Atl. 1027.

The return of the premiums was properly ordered. There was no actual fraud here. There was' a misstatement of the age of the person proposed for insurance which induced the issuance of the certificates of insurance ; but this was not wilfully or fraudulently done.

The case of Taylor v. Grand Lodge A. O. U. W., 105 N. W. 408, 3 L. R. A. (N. S.) 114, is a well considered ease which reviews the authorities on this subject, and announces the law to be that a recovery can not be had where the certificate was obtained by actual fraud, that is, where there was a wilful purpose to deceive on the part of the insured or the applicant; but that premiums may be recovered in all other cases.

Judgment affirmed.

McCulloch, C. J.,

(dissenting). The majority pre-termit a decision of the question as to whether or not the statement with reference to the age of the assured constituted a warranty, and I will content myself with merely saying that under the terms of the policy the statement was not, in my judgment, a warranty. Nor was it a false representation for, according to the undisputed evidence, the mistake as to the age of the assured was an innocent one and free from any intention to misstate the facts. Nor does the policy, in terms, make the correct statement of the age of the assured a condition precedent, so as to avoid the contract.

One of the by-laws of the association prescribes the restriction as to the age, hut it does not provide that a policy shall he void if the age of the assured is above the limit. Therefore, the decision of the case comes down, I think, to the question whether or not the contract is ultra vires.

Now a rule of law of very general application, sustained by the great weight of authority, is that, if a corporation enters into a contract not immoral in itself and not forbidden by any statute and which has been in good faith performed by the other party, the plea of ultra vires by a corporation will not be sustained in order to defeat recovery under a contract. That rule has been adopted by this court. Minneapolis F. & M. Mut. Ins. Co. v. Norman, 74 Ark. 190.

The rule is applicable to the present case, and results in establishing appellant’s right to recover, since there was no breach of warranty, no false representations and no unperformed condition precedent. No statute forbids such a contract, and it is'not one of immoral nature. Appellees has enjoyed the benefits of the contract by receiving the premiums paid, and ought not be permitted to éscape liability on the ground that the contract is beyond the powers prescribed under its by-laws. It is unimportant that the premiums were received by the company without knowledge that the age of the assured was not within the limit prescribed in the by-laws, for, since there was no breach of warranty and no false representation to defeat the contract, the parties must be deemed to have contracted with inference to the life of the particular individual mentioned, and the fact that there was a mutual mistake with respect to the age of the assured does not render the contract unenforceable. This does not result from an application of the doctrine of estoppel, hut from the principle that when a corporation has received all the benefits of an executed contract which is not forbidden either in law or in good morals, it should be be compelled to perform its part of the contract even though contrarv tr> its own by-laws. Knowledge on the part of the corporation of the fact that there has been a departure from the by-laws is not essential to liability, if the corporation has received all of the benefits of performance by the other party and there has been no breach of warranty nor false representation.

It seems to me that the decision in this case is in conflict with our decision in Mutual Aid Union v. Blacknall, 129 Ark. 450. In that case there was found to be a waiver of the misstatement of age by reason of the knowledge of it being brought home to the company through its agent. But if, as the court below now decides, the contract was one beyond the power of the company to execute, we ought to have decided in that case that the contract was void on that account.

My conclusion is that, according to the undisputed evidence, appellant is entitled to recover the full amount of the policy.