author: Smith, J.

text:
    Batson v. Drummond.
    Opinion delivered March 26, 1923.
    1. Partnership — when created. — Where plaintiff sold to defendant a half interest in a hotel lease and furniture, taking notes in payment, each party agreeing to devote his entire time to the business of the hotel and to tear one-half of the expensés and to share the profits equally, a partnership was created.
    2. Partnership — dissolution.—Where -plaintiff and defendant were partners in a ho-tel business, plaintiff being the day man and defendant the night man, plaintiff could not dismiss defendant as night man by instructing the night clerk that, if defendant appeared, the night clerk was nevertheless to stay on duty.
    3. Partnership — charge for services. — In the absence ol contract, a partner is not entitled to charge anything by way of salary for his services; but, if salaries are to he paid, the presumption is that all the partners are to receive the same payment where they are equal partners.
    4. Partnership — operating expenses.' — Where plaintiff and defendant entered into an agreement to operate a hotel, the firm could not be charged with the expense of operation for a time preceding the formation of the partnership.
    5. Partnership — accommodations to guest op partner. — Where plaintiff and defendant operated a hotel as partners, and plaintiff furnished room and board to a guest without charge, the customary rate for such accommodation was properly chargeable against plaintiff.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      McKay & Smith, Mahony & Yocum, and Saye & Saye, for appellant.
    The evidence showed a partnership existed between the parties. Roach v. Rector, 93 Ark. 521; Meehan v. Valentine, 145 U. S. 611; LaCotts v. Pike, 91 Ark. 26; Wilson v. Todhunter, 137 Ark. 80; First National Bank v. Stokes, 134 Ark. 368; Kent v. State, 143 Ark. 439; Wescott v. Gilmore, Ann, Cas. 1916-E, 437; 150 Pac. 777, 20 R. C. L. 830, par. 30, 35; Miller v. Hughes, 10 Am. Dec. 719; Richards v. Grinnell, 50 Am. Rep. 727. The court erred in division of the profits. 20 R. C. L. 877, par. 90; XJndenvood v. Overstreet, 188 Ky. 562, 223 S. W. 152; 20 R. C. L. 1023, par. 265; 1 Jones, Blue Book on Evidence, 268; Raines v. Weiler, 101 Kan. 294, L. R. A. 1917-P, 571, and note; Maynard v. Maynard, 147 Ga. 178, L. R. A. 1918-A 81; Pearce v. Scott, 37 Ark. 308; Haller v. Willamowicz, 23 Ark. 566; Cole v. Cole, 119 Ark. 48; Johnson v. Jackson, 114 S. W. (Ky.) 260. Parol agreements and prior conversations merged, in written contract, which can not be contradicted or varied by parol evidence. 3 Jones, Blue, Book on Evidence, § 434; Clark on Contracts, 490; 2 Elliott on Contracts, sec. 1620; Morris v. S. W. Supply Co., 136 Ark. 507, 206 S. W. 894; Barfield Mercantile Co. v. Connery, 150 Ark 428, 234 S. W. 481; Sims v. Best, 140 Ark. 384, 215 S. W. 519. None of the indebtedness and bills made prior to formation of partnership should have been charged to it, nor should appellee’s testimony as to profits have been regarded conclusive. Garter v. Road Imp. Dist., 238 S. "W. (Ark). 71; Harris v. Rush, 129 Ark. 369. 196 S. "W. 471. Appellee’s conduct was not in good faith as a partner, nor could he dissolve the partnership. Property ordered sold not identified by decree. Partnership should have been dissolved and business wound up by court. 20 R. C. L. 953, sec. 177; Johnson v. Jackson, 114 S. "W. (Ky.) 260, 20 R. C. L. 958, sec. 182, note; A. S. R. 423, 60 A. S. R. 424; Hoiuell v. Harvey, 5 Ark. 270, 69 Am. Dec. 376, 20 R. C. L. 956, sec. 180. Receiver should have been appointed. 20 R. C. L. 966, sec. 188; Reddlinv. Whitehill, 135 IT. S. 621, 23 R. C. L. 30; Jones v. Weir, 66 Atl. 550; Childers v. Neeley, 34 S. E. 828; 5 Pomeroy’s Equity Jurisprudence, 145, sec. 81. Appellant is entitled to an accounting, regardless of whether a partnership existed.

      E. W. McGough and W. J. Goodwin, for appellee.
    No partnership existed between the parties. Buford v. Lends, 87 Ark. 412; Roach v. Rector, 93 Ark. 521, lays down the true test as recognized in this State. Johnson v. Rothchilds, 63 Ark. 518, 41 S. W. 996; Becker v. Robbins, 74 Ark. 437, 86 S. W. 667; Paris Mercantile Go. v. Hunter, 74 Ark. 615, 86 S. W. 808; Gulley v. Edwards, 44 Ark. 423; 30 Cyc. 366; Herman Kahn Go. v. Bowden, 80 Ark. 23, 96 S. W. 126; Oliver v. Gray, 4 Ark. 425; Haycock v. Williams, 54 Ark. 384, 16 S. ~W- 3; Harris v. Umstead, 79 Ark. 499, 96 S. W. 146; Neill v. Shamburg, 158 Pa. 263, 27 Atl. 992; St. John v. Cooks, 63 Hun. 460, 18 N. Y. Snpp. 419. Appellee had a right to foreclose his lien. Findings of chancellor are not disturbed unless against the preponderance of the testimony. Irvin v. Hugger, 142 Ark. 102. Forfeiture occurred on May 1, instead of June 1, 1922.
   Smith, J.

On November 26, 1921, appellee and two other gentlemen leased the Garrett Hotel in the city of El Dorado, and appellee later acquired the interests of his associates in the lease, and on April 1, 1922, he sold a half interest therein to appellant. The sale was evidenced by a contract in writing, and both parties agree there was a contemporaneous parol agreement governing the operation of the hotel, although they differ as to the terms of this parol agreement.

The relevant portions of the written contract are as follows: “ * * * in consideration of the sum of $7,500, $2,500 cash in hand paid, receipt whereof is hereby acknowledged, and $5,000 represented by equal monthly notes in the amount of $1,000 each, payable on the first day of May, June, July, August, and September, 1922, respectively, the said party of the first part does hereby bargain, grant, sell, assign and convey unto the said S. H. Batson a one-half (%) interest in and to all the goods, chattels and effects in and about or used in' connection with the Garrett Hotel, El Dorado, Arkansas, together with a one-half (%) interest in said lease aforesaid. To have and to hold the said goods, chattels and effects unto the party of the second part, his executors, administrators, and assigns, and to his own use, for the remainder of said term of said lease, and to have and to hold all personal property unto the said S. H. Batson, forever.

“And the said N. W. Drummond, party of the first part, does hereby covenant with and to the said party of the second part, that he is the lawful owner of said goods, chattels, and effects; that they are free and clear from all incumbrances; that he has a good right to sell the same; that he will warrant and defend the same against the lawful claims and demands of all persons. The said S. H. Batson undertakes and agrees with the said N. W. Drummond that, in consideration of the lease aforesaid, he will devote his full time and undivided attention to the business of said hotel. It is further agreed and understood that the said S. H. Batson hereby gives a lien on all of said personal property to the said N. W. Drummond to secure the full payment of the purchase money hereinbefore mentioned. ’ ’

Each of the five notes referred to the others, and contained an accelerating* clause, whereby all matured upon failure to pay any one of them. Appellant Batson did not pay the notes falling due in May and June, and on June 7th appellee brought suit for a judgment on the notes and to foreclose the lien reserved to secure their payment.

Appellant answered and alleged, in effect, that he and appellee had formed a copartnership to operate the hotel, but appellee had excluded him from the business, and had appropriated the profits of the business. It was alleged in the answer that appellant’s share of the profits would more than have paid the notes which had matured at the time the suit was brought, and there was a prayer that a master be appointed to state an account between the parties, and that a receiver take charge of the business. The court did not appoint either a receiver or a master, but did undertake to state the account between the parties, and, after doing so, credited the sum found due to appellant on the notes, rendered judgment for the balance due on them, and ordered sale of appellant’s interest in the property in satisfaction thereof. Appellant executed a supersedeas bond and duly perfected his appeal.

The first question in the case is whether a partnership existed between the parties, and we answer that question affirmatively. In the case of Roach v. Rector, 93 Ark. 521, the court laid down the following test of the existence of a partnership (quoting syllabus) : “As between the parties to an alleged partnership, the true test of a partnership is whether the parties actually joined together to carry on a trade or adventure for their common benefit, each contributing property or services and having a community of ownership in the property and of interest in the profits of the business.”

The written contract set ont above lacks bnt little, if anything, of creating a partnership, although it does not so designate the relationship of the parties thereunder. But it was not essential that this should be done.

In explanation of the parol contemporaneous agreement, appellee testified that it was understood that no partnership was being formed; on the other hand, appellant testified that it was expressly agreed that a partnership w¡as being formed; and we accept-his version as correct. The parties testified about and agreed as to what their respective duties were to be, as defined by the parol contrast, and this testimony confirms our conclusion that a partnership existed. Both parties were to devote their entire time to the hotel, each bearing an undivided one-half of the expenses incident to its operation and sharing equally the profits. Appellee was to be. the day man, and appellant was to come on duty at 11 o’clock at night, relieving a clerk who had come on duty at 1 o’clock in the day.

On one occasion appellant did not show up to relieve the clerk, who went off at 11 p. m. After waiting until 1 a. m. appellee told the clerk on duty to stay on all night, and to tell the appellant, if he came oh during the night, that he (the night elerk) had orders to stay on all night, thus virtually dismissing appellant. But a partner could not be thus discharged. Appellant testified that thereafter, although he continued to perform his duties, he was furnished no information about the finances of the business. Appellee testified that appellant had access to the safe where the books were kept, and could have had any information desired by an inspection of them.

The parties differ as to the parol agreement in regard to the salaries of the partners. Appellee testified that he was to be paid $250 per month, and appellant wlas to have only $42.50 per week. Appellant testified that nothing was said about salaries, and that the parol agreement on that subject was that each partner should be allowed to draw necessary expense money, and be charged therewith. We accept appellant’s version of the parol contract as more consonant with the written contract and the conduct of the parties, as each of them drew from the firm and was charged therewith.

In the absence of any contract on the subject, neither partner would be entitled to charge anything by way of salary for his services; but, if they were to be paid, and there was no express contract in regard to the sum to be paid, the presumption would be that they were to receive the same payment, as they were equal partners. Cole v. Cole, 119 Ark. 48; Pierce v. Scott, 37 Ark. 308; Haller v. Willamowics, 23 Ark. 566; note to 17 L. R. A. (N. S.) 385.

After the parties had been operating the hotel for a few weeks appellee paid, with the funds of the copartnership, $1,020 balance due on the furniture, and he justifies that action by saying that he explained to appellant, when they made the parol agreement, that this item was outstanding, and would be paid out of the future earnings of the business. Appellant denies liability for this item, or any agreement that the partnership should pay it, and we must accept his version of that transaction, especially in view of the fact that the written contract set out above expressly warrants that the goods there sold (being those on which the payment of $1,020 was made) were free and clear from all incumbrances; that appellee had a good right to sell, and would warrant and defend the title against the demands of all persons.

It appears that appellee also charged the firm with the operating expenses of the hotel for the month immediately preceding the formation of the copartnership. There appears to have been no authority for that action, as appellant’s agreement to share the expenses of operation would properly be limited to the period of time during which he was also sharing in the profits, and cer■tainly so in tlie absence of a very definite agreement to the contrary.

Appellant did not pay the May note when it matured. Discord bad already arisen between the partners, and appellant testified that, he told appellee he would pay the note when the month’s business had been audited and he had been given a statement thereof. Appellee admits promising to have an audit made, and he testified that he put in a telephone call for an auditor upon whom they had agreed, but he was unable to reach him. Appellant testified that the business was enormously profitable (El Dorado was at the time in the height of its oil boom), and he relied on appellee’s promise to have the books audited, well knowing that his share of the profits would more than pay the notes; and when the June note matured he renewed his demand for an audit. Appellee expressed his willingness to have the books audited, but demanded immediate payment of the notes. Appellant asked for a few days’ indulgence until he could send to Mississippi for the money to pay the notes, but this request was denied, and appellee elected to declare all the notes due, and brought this suit.

According to appellee’s own admission, the net profits for April were $2,469.32, and for May they were $2,241.71, one-half of which would, of course, belong to appellant; but appellant had drawn against his share, and the balance due was insufficient to pay either of the notes maturing- at the end of those months. Accordiug to appellant, his share of the profits was ample for that purpose.

The rate per day of rooms in the hotel was very high. The rate of a room furnished one of the clerks carried a rate of $5 per day. The use of this room was. of course, an operating expense to be charged to the expense account, but it shows how profitable the rooms were. It appears that appellee was furnishing room and board to a guest, without charge therefor, who had no duty in connection with the operation of the hotel. We perceive no reason why appellee should not he charged the usual and customary rate for the accommodation of this guest. If this business was a partnership, and we so hold, then appellee had no right to furnish free accommodations to any one without being charged therewith.

The decree will be reversed, and the cause will be remanded, with directions to the court below to appoint a master to state an account between the parties, in accordance with the views here expressed, and to appoint a receiver to take charge of and wind up the partnership business.

There was a cross-appeal by appellee, but the issue there raised is concluded by what we have already said.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Borland v. State.
    Opinion delivered March 26, 1923.
    1. Indictment and information — disqualification1 of grand juror.- — -Under Crawford & Moses’ Dig., § 3030, providing that no indictment shall he v-oid ¡because any of the grand jury failed to possess legal qualifications, it was not -error to overrule a motion to quash an indictment which alleged that a member of the grand jury was not- at the time a qualified elector and citizen.
    2. Criminal law — order of trial. — Where defendants, jointly indicted for murder, moved for severance and election of order of trial, under Crawford & Moses’ Dig., § 3140, and the motion was granted, and the prosecuting -attorney entered a nolle prosequi against the first two defendants and placed appellant on trial, the latter was not deprived of his right of election of order of -trial; section 3140 meaning that defendants shall •he tried in the order entered on the docket, unless some legal reason, such as the entry of a nolle prosequi, intervenes.
    3. Criminal law- — continuance.—It was not error to refuse a continuance where the motion therefor was not sworn to by defendant or his attorney.
    4. Jury — disqualifying opinions. — Jurors’ opinions, formed from reading newspaper publications, did not disqualify where the jurors stated that they would disregard them and try the cabe fairly and impartially.

      5. Criminal law — separation of jurors. — Under Crawford & Moses’ Dig., § 3187, authorizing the court, in the exercise of its discretion, to permit a separation of the jurors before submission of the cause, it was not error to permit a separation in a murder case where no abuse of discretion is shown, and it does not appear that any jurors were subjected to improper influences.
    6. Criminal law — voluntary confession. — In .a murder prosecution, a written confession, made without deception, threat, hope of reward or inducement of any kind, was admissible.
    7. Homicide — self-defense—instruction.—Where there was evidence in a prosecution for murder which tended to raise the issue of self defense, there was no error in instructing on the law thereof, although defendant did not plead self defense.
    8. Criminal law — involuntary drunkenness. — Drinking whisky at another’s request does not make the drunkenness therefrom involuntary, as one must be coerced 'to drink before his act or the effect can be classed as • involuntary.
    9. Homicide — drunkenness as defense. — Drunkenness as a defense is limited to the charge of murder in the first degree.
    10. Homicide — instructions—harmless error. — In a prosecution for murder it was not prejudicial error to refuse a charge that if defendant was intoxicated to the extent that he was not conscious of what he was doing, then he could have no specific intent to Mil under the law, where he was acquitted of murder in the first degree.
    11. Homicide — abstract instruction. — In a prosecution for murder, it was not error to refuse an instruction relating to an accidental killing in an effort by defendant to chastise deceased where there was no evidence to that effect.
    12. Criminal law — repetition of instructions. — It was not error to refuse a requested instruction fully covered by instructions given.
    Appeal from Crittenden Cirenit Court; R. E. L. Johnson, Judge;
    .affirmed.

      Rudolph Isom and W. B. Scott, for appellant.
    Court erred in overruling motion to quash indictment; a member of grand jury returning it not being a qualified elector. U. S. v. Gale, 109 U. 8. 65; Reich v. State, 53 G-a. 73; Crawley v. U. S., 194 U. S. 461; Ex parte Reynolds, 53 Tex. Criminal, 437, 34 S. W. 120; Eastling V; State, 69 Ark. 489, rendered after passage of § 2245, Kirby’s Digest, § 6333, Crawford & Moses’ Digest;
      Galloway v. State, 120 Ark. 204, does not overrule . Eastling v. State, supra. ■ See (also State v. Brown, 10 Ark. 78; sec. 2, art. 10, Const. Should not have permitted a nol. pros, entered as to two defendants after the severance in order to force appellant to trial first. Sec. 2513, Kirby & Castle’s Digest; Sims v. State, 68 Ark. 189; McDonald v. State, 104 Ark. 317. Court erred in not excusing jurors for cause who ■stated they had formed opinions of guilt of accused. Polk v. State, 45 Ark. 171; sec. 10, art. 2, Const.; 2 Words and Phrases, 576; National Gandy Go. v. Miller, 160 Fed. 51, 87 C. C. A. 207; Gammons v. State, 85 Minn. 103, 37 So. 607; J ackson v. State, 103 Ark. 21, distinguished in not allowing further examination of them. Also Polk v. State, 45 Ark. 71. Peremptory challenges exhausted. Stewart v. State, 13 Ark. 730; Meyer v. State/& Id. 156; 1 Bishop, Criminal Procedure, sec. 910; People v. Gehr, 8 Cal. 359; People v. Weil, ,40 Id. 268. Challenges not exhausted. Wright v. State, 35 Ark. 639. Herman v. State, 188 S. W. 541. Jury should not have been allowed to separate. Confession improperly admitted. State v. Smith, 74 Ark. 397; Gonley v. State, 50 Ark. 305; Greenwood v. State, 107 Ark. 568; Frasier v. State, 42 Ark. 70; Dewein v. State, 114 Ark. 472, 170 5. W. 582. Court erred in giving special instruction number 20, and 14,15 and 19; Ghowning v. State, 91 Ark. 503. Also in refusing appellant’s requested instruction 6, 7 and 8. Harris v. State, 119 Ark. 85; Howard v. State. 82 Ark. 97; King v. State, 117 Ark. 82; Gilchrist v. State, 100 Ark. 330; Bosemond v. State, 86 Ark. 160: Instruction 6 exact copy of instruction held erroneously refused in Ghowning v. State, 91 Ark. 503. See 'also 91 Ark. 505; 94 Ark. 75; 103 Ark. 33; 102 Ark. 511; 36 L. R. A. 465. As to 7, Thorpe v. State, 99 Ark. 188.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    No error in denying motion to quash indictment. Sec. 3030, Crawford & Moses’ Digest; Galloway v. State,
      120 Ark. 205; Tillman v. State, 121 Ark. 322. Grand juror was a citizen and elector anyway. 9 E. C. L. 542; 17 Enc. of Procedure 290-4. Nor in allowing prosecuting attorney to nol. pros, eases. Secs. 3063, 3140, Crawford & Mo-ses’ Digest; Sims v. State, 68 Ark. 188. Record also shows agreement of counsel to put appellant on trial first. N orsworthy v. State, 149 Ark. 670; Morris v. State, 142 Ark. 297. Motion for continuance was not verified; §§ 3130, 1270, Crawford & Moses’ Digest; Brinkley v. Slate, 148 Ark. 597. Said § 1270 not affected on this point by Graham v. State, 50 Ark. 161. No error in holding jurors qualified. West v. State, 150 Ark. 555; Crmvforcl v. State, 132 Ark. 518; Branscwn v. State, 134 Ark. 66; Gibson v. State, 135 Ark. 520; Mallory v. State, 141 Ark. 496. Challenges were unnecessarily exhausted on competent jurors. Scruggs v. State, 131 Ark. 320; Gibson v. State, supra; Adkisson v. State, 142 Ark. 15; Ruloffy. State, 142 Ark. 477; Reap v State, 143 Ark. 81; Hall v. Smith, 146 Ark. 579. Question of separation of jury not made ground of motion for new trial. Mabry v. State, 80 Ark. 345; Eno v. State, 91 Ark. 441; Johnson v. State, 84 Ark. 95; Jackson v. State, 108 Ark. 425; Barnes v. State, 149 S. W. 506. Sec. 3187, Crawford & Moses’ Digest, permits separation of jury. Johnson v. Stale, 32 Ark. 309; Armstrong v. State, 102 Ark. 356; Reeves v. State, 84 Ark. 509. Carlton v. State, .109 Ark. 516. Confession was shown to be voluntary. Greenwood v. State, 107 Ark. 568; Dewein v. State, 114 Ark. 472. Question of admissibility of evidence for the court. Corley v. State, 50 Ark. 30&; Smith v. State, 74 Ark. 397. No error in giving instruction 20 on self-defense, .and it could not have been prejudicial. Mills v. Roberts, 136 Ark. 433; Haynes v. Gwin, 137 Ark. 387; National Ünion Fire Ins. Co. v. School Hist., 131 Ark. 547. Cannot complain of instruction in his favor. Bush y. Beason, 130 Ark. 569; Taylor y. State, 72 Ark. 613; Reed v. Slate, 141 Ind. 116, 40 N. E. 525; 10 Ann. Cas. 120; 13 R. C. L. 813; 11 Enc. of Procedure 674. Law correctly declared in instructions 14, 15 and 19 relative to drunkenness, and no specific objections were made. No specific intent to kill required to constitute murder in second degree. Instructions 6, 7 and 8, requested were properly refused as incorrect or covered by those given. Case should be affirmed.
   Humphreys, J.

Appellant was indicted and tried for murder in the first degree, in the Crittenden Circuit Court, for killing Frank Heath, a negro, at Hulbert, Arkansas, on the 10th day of August, 1922. He was found guilty of murder in the second degree and adjudged to serve a term of ten years in the State Penitentiary for punishment therefor, from which is this appeal.

Appellant was indicted jointly with John J. Keeley, Will Townsend and Dudley Clegg, for said crime. They filed a motion to quash the indictment on the alleged ground that Lee Cook, a member of the grand jury which returned the indictment, was not at the time a qualified elector and citizen of Crittenden County, Arkansas. The motion was heard and overruled by the court, which ruling constitutes the first assignment of error insisted upon for reversal. It is provided by § 3030, Crawford & Moses’ Digest, that “no indictment shall be void or voidable because any of the grand jury fail to possess any of the qualifications required by law.” In the case of Calloway v. State, 120 Ark. 205, it was said, in construing the statute, that “ on a motion to quash the indictment, its validity cannot be called in question on the ground that a member of the grand jury was not qualified to act. ’ ’

After the motion to quash was overruled, the defendants in the indictment moved a severance and election of order for trial under § 3140 of Crawford & Moses’ Digest, which is as follows:

“When jointly indicted for a felony, any defendant requiring it is entitled to a separate trial, and, when the trials are severed, the defendants may elect the order in which they shall stand upon the docket for trial, but, if no such election is made, they shall stand in the order in which their names appear upon the indictment.”

The motion was granted, and, in keeping with the election, the separate cases were entered upon the docket in the following order: first, William Townsend; second, Dudley J. Clegg; third, Hugh Borland (appellant); fourth, John J. Keeley. Whereupon the prosecuting attorney entered a nolle prosequi in the cases against William Townsend and Dudley J. Clegg, and announced ready in the case against appellant. Appellant objected to this proceeding, on the ground that it deprived him of the benefit of his election to be tried after William Townsend and Dudley J. Clegg. The statute of severance and election does not irrevocably and absolutely fix the order in which cases of codefendants shall be tried when their cases are severed and entered on the docket for trial. The meaning of the statute is that they shall be tried in the order entered, unless some legal reason intervenes to prevent trial in the order named. A legal reason intervened in this case. The prosecuting attorney, by and with the consent of the court, entered a nolle prosequi in each of the cases against appellant’s codefendants which preceded appellant’s case on the docket for trial. The nolle prosequi in each case was authorized by § 3063 of Crawford & Moses’ Digest, which is as follows: “The prosecuting attorney, with the permission of the court, may, at any time before the case is finally submitted to the jury, dismiss the indictment as to all or a part of the defendants, and such dismissal shall not bar a future prosecution for the same offense.” Appellant’s second assignment of error therefore cannot prevail.

Appellant’s third assignment of error is the refusal of the court to grant a continuance in this case. He filed an unverified motion for a continuance. It was not error to refuse to grant a continuance where the motion was not sworn to by appellant or his attorney. Brickey v. State, 148 Ark. 197.

Appellant’s fourth assignment of error is that he was forced to exhaust his peremptory challenges of incompetent jurors, and thereby compelled to accept Mr. Sweeney and other jurors that he desired to challenge. It is contended that W. W. Harris, J. B. Dulaney, George Spencer, W. F. Sloan, Will Gray, and II. P. Howard should have been discharged by the court for cause on their voir dire. When examined for qualification, each answered in substance that he had a fixed opinion of the guilt of appellant which it would take evidence to remove, formed from reading a verified confession of appellant in the newspaper. Each stated on cross-examination, however, that he could disregard the opinion formed by him and try the case fairly and impartially on the evidence and law, and would do so if chosen as a juror. Since the opinions were formed from reading newspaper publications, easily effaceable by sworn testimony given from the witness stand, they were not disqualifying opinions, when the parties holding them stated that they would disregard such opinions and try the case fairly and impartially. Hardin v. State, 66 Ark. 53; Sullins v. State, 79 Ark. 131; Jaclcson v. State, 103 Ark. 21; Crawford v. State, 132 Ark. 518; Gibson v. State, 135 Ark. 520; West v. State, 150 Ark. 555.

Appellant’s fifth assignment of error is that the court permitted the jury to separate. Authority to do this, in the exercise of a sound discretion, is conferred on trial courts by § 3187 of Crawford & Moses’ Digest. No abuse of discretion was shown. Johnson v. State, 32 Ark. 309, and it does not appear that any of the jurors were subjected to improper influences during the dispersion of the jury. No error was committed in permitting them to separate. Reeves v. State, 84 Ark. 569; Carleton v. State, 109 Ark. 516.

Appellant’s sixth assignment of error is the admission of his written confession in evidence by the court. The only claim, bearing a semblance of right, against the introduction of the confession, is the insistence that it was induced by promise of partial immunity. Appelleetestified that he made confession because he was told, and believed, that be would get off easier by doing so. The testimony of the witnesses present when the confession was made was to the effect that the assistant prosecuting attorney advised appellant that, if he made confession, it must be entirely voluntary, and that it could and would be used against him in his trial upon the charge of murder; that he announced a willingness to .make a full confession, which he proceeded to do by affirming the written confession he had theretofore made in Memphis. The written confession itself closed with the statement that it was voluntarily made. Under the decided weight of evidence, the confession was made without deception, threat, hope of reward, or inducement of any kind, and was therefore admissible in evidence. Greenwood v. State, 107 Ark. 568.

Appellant’s seventh assignment of error is that the court defined the law of self-defense, in instructing the jury, without a scintilla of evidence in the record upon which to base it. It is contended that appellant did not plead that he killed Frank Heath in necessary self-defense, or that he was killed by any of appellant’s codefendants in necessary self-defense. The testimony introduced by the State tended to show that appellant and his codefendants attacked six negroes with firearms, who were waiting for the train, on the depot platform at Hulbert, Arkansas, on the 10th day of August, 1922, between seven and eight o’clock p. m., and killed two of them, Frank Heath and Z. M. Brown. Appellant testified that he and his codefendants approached the negroes for the purpose of inducing them to quit working for the railroad company; that two of the negroes made breast and side-pocket movements as if to fight, whereupon he (appellant) drew a gun and told them to wait a minute, they wanted to talk to them; that shooting then began from behind and on the side, when two negroes fell and the others ran; that he jumped in front of them and shot into the ground three times to prevent them from running in the direction of the guard-house. It is true, appellant denied shooting at the negroes, and did not specifically interpose a plea of self-defense to the charge of murder, but his testimony to the effect that two of the negroes made movements as if to fight tended to raise the issue of .self-defense, which entitled the State to an instruction defining the law upon that subject, even if appellant did not request or want it. It was the duty of the court to instruct the jury upon every phase presented by the evidence, although not error to fail to do .so in the absence of a request for instructions covering all questions presented by the testimony.

Appellant’s eighth assignment of error is that the court incorrectly declared the law, in instructions 14, 15 and 19, applicable to the facts in relation to his plea of drunkenness as a defense to the charge against 'him. The main objection made to the instructions is that they define the law applicable to voluntary drunkenness when interposed as a defense to crime, but fail to define the law applicable to involuntary drunkenness when pleaded as a defense to crime. Appellant contends that he drank whiskey, which intoxicated him, at the suggestion of Seth W. Poston, and not of his own volition. Drinking whiskey at the request of another does not make the drinking, or the drunkenness therefrom, involuntary. One must be coerced to drink before his act or the effect can be classified as involuntary. One necessarily wills to drink who drinks at the invitation or mere suggestion of another. The record in the instant case does not reflect that Poston forced appellant to drink, so the instructions applicable to voluntary drunkenness were responsive to the testimony. Another objection made to instruction No. 19 is that the court limited drunkenness as a defense to the charge of murder in the first degree, when he should have extended it to murder in the .second degree. The objection is not tenable. The court decided, in Byrd v. State, 76 Ark. 286, that, “as the specific intent to kill is unnecessary in murder in the second degree, under our statute, if one voluntarily becomes too drunk to know what he is about, and then, without provocation, assaults and beats another to death, he commits murder in the second degree, just as if he were sober.”

Appellant’s ninth assignment of error consists in the refusal of the court to give his request No. 6, which is as follows:

“The court further charges you that, if you find and believe from the evidence that the defendant was intoxicated to that extent that he was not conscious of what he was doing, being drunk to the extent that he could have no specific intent to kill, under the law, he would not be guilty of murder in either the first or second degree.” This instruction was covered by the court’s instruction No. 14, but, if not fully covered by that instruction, no prejudice resulted to appellant on account of the court’s refusal to give same, as he was convicted of a crime which did not contain elements of premeditation and deliberation. He was acquitted of murder in the first degree, in which intent to take life was a necessary element. It was not error therefore to refuse the instruction.

Appellant’s tenth assignment of error consists in the court’s refusal to give his request No. 7, which is as follows: ■

“The court further charges you, gentlemen of the jury, that, if you find from the evidence that it was the intent of this defendant merely to inflict chastisement upon the deceased, and death resulted from an unexpected incident, then you could not find the defendant guilty of either murder in the first degree or murder in the second degree.” There is nothing in the record to show that appellant’s intent was to merely chastise Frank Heath, and that his death resulted from an unexpected incident. The request was properly refused as not being responsive to the testimony.

Appellant’s eleventh and last assignment of error consisted in the court’s refusal to give his request relative to the admissibility of and the weight to be accorded his confession. ' The requested instruction was fully covered by the court’s instruction numbered 17. The court was not required to multiply instructions covering the same subject-matter.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Bonner v. Sledd.
    Opinion delivered April 2, 1923.
    1. Courts — jurisdiction of probate court. — Under Const., art. 7, § 34, the probate court has jurisdiction of a money claim for services performed for decedent under a contract to devise land; specific performance not being asked.
    2. Frauds, statute of — breach of contract to devise land.— Where plaintiff orally agreed to take care of decedent for the remainder of his life, and decedent orally promised to bequeath a certain sum. and to devise a certain tract of land to plaintiff, and plaintiff performed his part, but decedent failed to make such bequest and devise, she can recover for the services a sum equal to the value of the land plus the named sum, even if the contract was within the statute of frauds as to the agreement to devise the land.
    Appeal from St. Francis Circuit Court; J. M. Jackson, Judge;
    affirmed.

      G. E. Daggett and Walter Garner, for appellant.
    Count erred in refusing appellant’s requested instructions 1 and 2. Probate court had no jurisdiction of claim for damages for failure to convey land, ¡and circuit court acquired none on appeal. Claim falls in provisions of §§ 97, 100, C. & M. Digest. Probate court without jurisdiction to 'adjudicate claims of title to property arising between administrator and third persons. 134 Ark. 484; 55 Ark. 222; 111 Ark. 353; 116 Ark. 350; 147 Ark. 7; 149 Ark. 173; 155 Ark. 494. Demand of appellee really unliquidated claim for damages. 69 S. W. (Tex. Civ. App.) 231; 127 N. W. (Minn.) 11. Exception to rule of Walker v. Byers, 14 Ark. 246; 105 Ark. 95. Tract of land involved not in custody of executor. Probate court has no jurisdiction of claims “arising out of tort or for ■unliquidated damages.” If term “demand” as used in § 100, C. & M. Dig., includes all claims “arising in tort or under contract” is it the design to vest the jurisdiction over all claims against estates of deceased persons in probate court or only to require the presentation to the administrations to prevent bar of nonclaim statute, léaving jurisdiction of claims in forum -where it properly belongs? Walker v. Byers, supra; 134 Ark. 407, distinguished. Appellee had a valid executory contract for conveyance of forty-acre tract of land, and not a “demand” against the estate. 123 Ark. 191; § 175, C. & M. Digest. Contract to devise the land is within the 'statute of frauds, and not removed therefrom by alleged performance on part of promisee, in «aying which we are not unmindful -of Hinkle v. Hmkle, 55 Ark. 583; Naylor v. Shelton, 102 Ark.'30; Ford v. Asbury, 105 Ark. 494; Williams v. Williams, 128 Ark. None of the elements controlling’ in -those cases is present here. See note to Grindling v. Beyhl, 15 L. R. A. (N. S.) 466, 'and Schoonover v. Schoonover, 38 L. R. A. (N. S.) 752. Our construction recognized in Lay v. Lay, 75 Ark. 526. Action in effect is for specific performance of oral agreement to devise, and rule of evidence should not 'be different. 36 Cyc. 692. See also generally 25 R. C. L. 587, secs. 191-5; p. 307, secs. 121-2. Chancery court is proper forum. Note to Naylor v. Shelton, Ann. Cas. 1914-A, 399. Contract is within statute of frauds, only question being the sufficiency of performance to remove it and the remedy to enforce it. Hamilton v. Thirston, 48 A. T. L. 709. Contract not admissible, and all in statute of frauds. Taylor v. Tlmrman, 111 N. W. 229; 25 R. C. L. 704, sec. 347; 25 R. C. L. 586, sec. 190.

      Mann S Mann, for appellee.
    The -claim of appellee was for services rendered and living in the home with and taking -care of decedent during closing years of his life, he (having failed to make provision for payment thereof in his will, in accordance with the contract. No conveyance of the land agreed to be devised is «ought, and it is mentioned only incidentally to determine value of service rendered. No error was committed in refusing 'appellant’s requested instructions, and the cases first cited in his brief have no application here. The probate court -only had jurisdiction of the claim. Sec. 93, Crawford & Moses’ Digest; Walker v. Byers, 14 Ark. 246; Watkins v. Parker, 97 Ark. 494; Stewart v. Thomason, 94 Ark. 62. This claim not within exceptions as set out in 11 R. C. L. 204. Had right to money compensation, property not being devised. 13 Corpus Juris, 587; 17 C. J. 867; § 93, Crawford & Moses’ Digest; 24 C. J. 287; 11 R. C. L. 208. Where no specific amount agreed upon, the reasonable value of the service measures the amount to be allowed. 24 C. J. 288, 277.
   McCulloch, C. J.

Appellee presented in the probate court of St. Francis County a properly verified claim in the sum of $10,000 against appellant’s testator, John Young, for personal services alleged to have been rendered by appellee for said testator during the latter’s lifetime and up to the date of his death.

There was an appeal from the judgment of the probate court to the circuit court, where, on the trial of the cause, a verdict was rendered by a jury in favor of the appellee for recovery from the estate of the sum of $8,000. Judgment was rendered accordingly, and an appeal has been prosecuted to this court.

It is undisputed that John Young was feeble and in ill health for a considerable length of time prior to his death, and that, shortly after the death of his daughter, which occurred about eight months before his own death, appellee moved into the home of John Young and remained with him continuously, except for a short period of time, until he died, and performed certain personal services in taking care of him and his household.

Appellee claims that, before she moved into the home of the deceased, the latter entered into an oral contract with her whereby he agreed that, if she would move to the place and take care of Mm as long as lie lived, lie would compensate her for her services by leaving her in his will the sum of $5,000 and a certain tract of land described as the ‘ ‘ Clark place. ’ ’

A witness introduced by appellee testified that he was present immediately after the death of the daughter of deceased, when the contract, in substance, stated above was entered into between appellee and deceased; that deceased proposed to appellee that he would compensate her in the manner and to the extent stated above for the services if she would undertake to perform same, and that appellee, after bringing in her husband for a consultation, accepted the offer. There is other testimony corroborating that of the witness just mentioned, and the evidence is abundantly sufficient to sustain the finding of the jury that the contract was entered into, and that appellee performed it according to its terms.

There is evidence to the effect that, on account of a disagreement between appellee and the foster daughter of deceased, and on account of illness of appellee’s husband, she removed temporarily from the home of the deceased and remained away for a while, hut returned under the same terms as originally agreed upon between her and deceased.

It is not contended that the evidence is insufficient to sustain the finding of the jury upon all the disputed issues of fact.

It is also undisputed that the deceased did not make a will providing compensation for appellee, in accordance with the alleged contract.

The first contention of counsel for appellant as grounds for reversal is that the probate court was without jurisdiction of appellee’s claim, so far as it related to the contract to convey land, and that appellee’s sole remedy, if any, is in the chancery court to compel specific performance of the alleged contract. This contention is without merit, for there is no effort to compel performance of the contract to convey land. The claim is made for compensation for .services performed under the contract ; it is a claim for the recovery of money and not for the recovery of property, and the probate court has jurisdiction as to all such claims, whether based on contract or tort. Walker v. Byers, 14 Ark. 246; Hayden v. Hayden, 105 Ark. 95. This, jurisdiction is conferred by the Constitution (art. VII, § 34), and the allowance of claims against the estate falls within that jurisdiction.

It is next contended that the alleged contract, so far as it related to the promise to devise a tract of land, fell within the statute of frauds, and was void. It is not contended that the part of the contract for compensation in money was within the statute, and it is obvious that this part of the contract is not within any of the classes of the statute of frauds. If this were a suit to compel specific performance of the alleged contract to devise lands, it is clear that the oral contract was within the operation of the statute, unless taken out by sufficient performance. This is. not, however, such a suit, and we need not determine whether the character and extent of the services shown to have been performed by appellee was such as to take the contract out of the operation of the statute. The law on that subject is settled by decisions of this court, and in one of those cases the rule was laid down with respect to what kind and duration of services and other circumstances would be required in order to take a case out of the operation of the statute of frauds where there was only the performance of such services and no possession taken. Fred v. Asbury, 105 Ark. 494. But, as before stated, this is not an effort to enforce the contract. It is one to recover compensation for services performed under contract. Even if it be held that the contract was within the statute of frauds and void as to the agreement to convey the land, still appellee is entitled to recover for the promised compensation, which is the sum equal to the value of the land. A conveyance of the land having been promised as a part of the consideration for the performance of services, the value of the land, in connection with the sum of money expressly promised, is necessarily the agreed value of the services to be performed. Therefore the appellee is entitled to recover, not upon the quantum meruit, but for the agreed value of the services.

The issues were properly submitted to the jury in accordance with the views herein expressed, and the evidence was, as before stated, sufficient to sustain the verdict. The judgment is therefore affirmed.


text:
    A. V. Wills & Sons v. Irby.
    Opinion delivered April 2, 1923.
    1. Principal and agent — implied authority to bind master for funeral expenses. — The rule that, in an emergency of extreme urgency and the remote absence of the principal, the servant in charge at a place where a servant is injured is authorized to act for the principal has no application to the case where a servant is accidentally killed and a foreman without actual authority employs an undertaker to care for his body, and the master is not liable unless he ratifies such employment.
    2. Principal and agent — ratification of unauthorized act-evidence. — Evidence held insufficient to show ratification by principal of unauthorized, act of agent.
    Appeal from Clay Circuit 'Court, Eastern District; W. W. Bandy, Judge;
    reversed.

      W. E. Spence and -Bloch db Kirsch, for appellants.
    The court should have directed a verdict for appellants. There is no substantial evidence to support the verdict, and the case should be reversed and dismissed.

      L. Hunter, Carl L. Humter, Z. B. Harrison, for appellee.
    Appellants concede there was sufficient evidence to go to the jury on the question that one agent or employee of appellants purchased the items included in the account sued on, and also that payment wias demanded of appellants. We insist that the evidence is sufficient tliat .appellants, with full knowledge of the facts, failed within a reasonable -time to disavow the acts of their agent, and ratified same by silence of acquiescence, to support the verdict of the jury, which should not be disturbed.
   McCulloch, C. J.

Appellants, with their principal office at St. Louis, are contractors, doing dredging work, and during the month of January, 1921, were doing that kind of work, using a dredgeboat, in Clay County, Arkansas. Durran was the foreman of the boat, and Earl Brogley, an employee, fell from the boat into the drainage canal, and was drowned. It does not appear that appellants or any of their servants were responsible to any extent for the death of Brogley. This occurred at night, and Durran sent a messenger to Rector for the purpose, as claimed by appellee, of procuring the services of an undertaker to take charge of the body of the decedent and prepare it for burial. There is a conflict in the testimony as to the purpose for which the messenger was sent, whether or not Durran undertook to contract with appellee, in appellant’s name, for the services performed and. the things furnished, but, as the sufficiency of the evidence is challenged, the case is stated in its light most favorable to appellee.

Appellee is an undertaker at Rector, and he was requested by Durran’s messenger to go out and take charge of the body. He did so at night, and carried the body to Rector, to his undertaking establishment, and the next morning a coffin and other burial paraphernalia were selected.

The evidence is sufficient to warrant the finding that Durran, purporting to act for appellants, his principal, authorized appellee to prepare the body for burial and to furnish the funeral outfit.

Appellee prepared the body by embalming it, and furnished an expensive casket and vault, and also wearing apparel for the corpse. The total bill was $395.

Early in the morning, before the selection of the casket and other things, Durran got into telephonic communication with Bay Brogley, who was a brother of the deceased, and who was'appellant’s foreman on another dredgeboat. Bay Brogley came in the afternoon and was present at the selection of the coffin and other things, but appellee testified that he furnished the things and did the work on the strength of the directions given him by Durran as appellant’s agent.

The body was shipped to Amboy, Illinois, the former home of the deceased, and was accompanied on the trip by Bay, the brother of deceased. On that day appellee made out two invoices for services and burial supplies furnished, each being made out in the name of Bay Brogley. He handed one of the bills to Durran and the other to Bay Brogley for the purpose of having them deliver the same to Bunnell, appellant’s general superintendent, who exercises, general authority. As Bay Brogley went through St. Louis with the corpse, he was met at the station by one of the members of appellant’s firm, and this bill was handed to that person, but no response was made, so far as the evidence shows, concerning the payment of the bill. This was on January 26, 1921. On February 9 appellee, not having heard anything from appellants or Bunnell, their superintendent, addressed a letter to appellants at their office in St. Louis, inquiring about what disposition had been made of the bill. The letter was not brought into the record, but the substance of it is fairly shown. To this letter appellants replied on February 12, 1921, as follows:

“We have your letter of February 9th in reference to bill for preparing the body of Earl Brogley for shipment to Amboy, Illinois. We wish to say that we have not received any such bill, but presume that it is in the possession of his brother, Bay Brogley.”

There is no testimony that appellants made any agreement to pay the bill. Later correspondence took place between tbe parties, and appellants expressly refused to pay the bill.

There is no testimony that Dnrran had any express authority from appellants to contract in appellants’ name for services or supplies of this kind. On the contrary, the testimony is uncontradicted that Dnrran’s express authority was limited to the operation of the dredgeboat and the purchasing of necessary supplies in the absence of Bunnell, the superintendent.

Appellee instituted this action against appellants to recover the amount of the bill, and counsel rely entirely upon either implied authority on the part of Dnrran to act for his principal in an emergency, or upon a ratification by appellants in failing to repudiate, within a reasonable time, the exercise by Dnrran of such authority.

There being no express authority for Dnrran to make such a contract, the implication of such authority, if it existed at all, must rest upon the necessity for action in an emergency where the principal, or one with express authority, was absent.

We have illustrative cases where servants of railroad companies have acted by the employment of surgeons in an emergency to attend injured passengers, employees or strangers, where the injury was inflicted by the train, and it has been held that, on account of there being an extreme emergency and the remote absence of the principal, the servant in charge at that particular place where the injury occurs is authorized to act for the principal. St. L. A. & T. Ry. Co. v. Hoover, 53 Ark. 377; Ark. Southern R. Co. v. Loughridge, 65 Ark. 300; Bonnette v. St. L. I. M. & So. Ry. Co., 87 Ark. 197.

In the case first cited, Judge Hemingway, speaking for the court, stated.the doctrine as follows:

“It has been held that where such injury is done at a point distant from the chief offices of the company, and there is urgent necessity for the employment of a surgeon to render professional services to an injured employee, the conductor, if he is the highest agent of the company on the ground, has authority to bind the corporation by the employment of a surgeon to render the services required by the emergency. Terre Haute & Indianapolis Ry. Co. v. McMurray, 98 Ind. 358. The authority existing in such cases is exceptional; it grows out of the present emergency and the absence — and consequent inability to act — of the railway’s managing agent; its existence cannot extend beyond the cause from which it sprang. The exception states the law most favorably for the appellee, and we do not hold that it does not state it too favorably; but, conceding it to be correct, his cause must fail. Neither of the subordinate agents engaged the appellee to attend the injured party during the emergency, if there was one. ’ ’

In that case the injured person was an employee of the company. In the Loughridge case, supra, the injury was to a passenger, and the same doctrine was announced and liability was imposed on account of the implied authority of the conductor to employ a surgeon. In the Bonnette case, supra, the injury was to a stranger, who was injured by the train, and the doctrine was again repeated and liability imposed. It will be observed that the reasoning clearly implies that there must be not only an emergency, but one of extreme urgency. In the Lough-ridge case the court held that board furnished to the surgeon employed by the conductor should not be paid, and this illustrates the limitation upon the doctrine. There are many authorities on this subject, but we have not been able to find any case where liability was imposed for anything except medical or surgical treatment in such an emergency. It has never been applied to attention to the dead, and it ought not to be so applied, for the reason that the preparation and burial of the dead is not an emergency of such immediate and pressing urgency as calls for quick action like the case of the alleviation of suffering of an injured person, or to pirevent death from ensuing. In case of injury to a person it may be a question of hours, or even moments, and the emergency does not justify any delay whatever, but the death of a person creates no such emergency, however great the necessity eventually of burying the dead. It is a matter, in other words, which will wait a few hours, or even longer, giving time to communicate with those upon whom the burden of the occasion should rest.

The doctrine being one wholly of necessity and involving the imposition of a legal burden where, under other circumstances, there could be nothing more than possibly a moral obligation, it should not be extended beyond the circumstances which first gave it rise.

We are of the opinion therefore that there was ho implied authority on the part of Durran to contract in the name of his principal for the burial of the dead man. It is not claimed that there was any express authority, nor do we thinlc that the circumstances justified a submission to the jury of the question of ratification of the act of Durran. There was nothing except mere silence, a failure on the part of appellants to repudiate the acit of Durran, and it is not even shown that they were advised that Durran had contracted in their name. There is nothing except the bare fact that a bill was handed to them, made out to Kay Brogley, the brother of the deceased. This did not put appellants upon notice that they were charged with liability, and it called for no reply. As soon as they received the letter from appellee on this subject, they promptly replied, merely stating that they had not received any bill, and the contents of the letter itself were sufficient to put appellee upon notice that appellants were not impliedly ratifying the act of Durran. In other words, there is nothing to put them on notice that they were expected to pay the bill and to call for a repudiation or denial of liability.

We are therefore of the opinion that under no view of the facts of the case was there any ratification by appellants, and there was no liability established.

It is unnecessary to discuss the instructions in the case, since we have reached the conclusion that, upon the facts fully developed, there is no liability.

The judgment is therefore reversed, and the cause is dismissed.

"Wood and Humphreys, JJ., dissent.


text:
    Road Improvement District No. 1. v. Delinquent Lands.
    Opinion delivered April 2, 1923.
    1. Highways — invalidity op road district bonds. — In an action to enforce assessments for road improvements, a decision as to the validity of bonds issued by a road improvement district which have gone into the hands of innocent purchasers would not be binding on the holders of such bonds where they are not parties to the action, and therefore the question will not be determined.
    2. Highways — invalidity op road district bonds — enforcement op assessments.- — In an action by a road improvement district against delinquent lands for unpaid assessments, allegations of the property owners that the sale of bonds with which the improvement was made was void, being for less than par, in violation of the statute, is no defense where the improvement was constructed as required by the statute, as the district, having received -the benefit of the construction, must pay for it, even though the bonds were sold illegally.
    Appeal from Independence Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      Chas. F. Cole, Rose, Hemingway, Cantrell <& Lough-borough, for appellant.
    Even though, the bonds were .sold below par, contrary to the provisions of the ¡statute, it would not affect the liability of the district to pay for the improvement made. Hitchcock v. Galveston, 96 U. S. 341; Fitzgerald v. Walker, 55 Ark. 148; Searcy v. Tarnell, 47 Ark. 269; Railroad v. Stancell, 43 Ark. 275; Book v. Polk, 81 Ark. 244; Altheimer v. Plum Bayou Levee Disi., 79 Ark. 229; Forrest City v. Bank of Forrest City, 116 Ark. 377;
      Houston ■& T. G. Ry. v. Texas, 177 U. S. 67; District of Columbia v. Lyon, 161 TJ. S. 200; Little Rock v. National Bank, 98 TJ. S. 308; Ft. Worth City Go. v. Smith Bridge Go., 151 U. S. 294; Riches on v. National Bank of Mena, 96 Ark. 594; Dunbar v. Gazort & McGehee Co., 96 Ark. 308. Bonds in fact were not sold below par. Arkansas Foundry Go. v. Stanley, 150 Ark. 127. A sale to the contractor would have been justified under the circumstances. Hopson v. Heliums, 111 Ark. 421. The payment to the contractor in settlement of 'his claim for damages was a fair compromise, and will be upheld. First National Bank v. Mena, 141 Ark. 328; Bankers’ & Planters’ Mutual Ins. Assn. v. Archie, 145 Ark. 481; Fair v. Beal-Burrow Dry Goods Go., 148 Ark. 340. A sale of the bonds below par in violation of the act will not vitiate bonds in the hands of innocent purchasers. 2 Dill. Mun. Corp. 1401, sec. 895 and 918, p. 1440; Woods v. Lawrence Go., 1 Black 386, 410; Richardson v. Lawrence Go., 154 U. S. 536; Mercer Go. v. Hackett, 1 Wall. 83, 96; Mayer v. Roy, 19 Wall. 468, 478; Commissioners v. Aspinwall, 21 How. 539; Grormvell v. County of Sac., 96 H. S. 31; Montpelier, etc. v. Hoyie Board Education, 62 Fed. 778 Ct. App.; Citizens’ Savings Bank v. Toiun, 65 N. E. (N. T.) 978; St. Paul Light Go. v. Village of Sandstone, 75 N. W. (Minn.) 1050. Fact that selling broker split his fee with purchaser does not affect validity of bonds.

      Earl G. Casey and J. A. Watkins, for appellee.
    The bonds were sold for less than par, in violation of the statute, and are void. Sec. 8, p. 885, Acts 1919; Abbott’s Public Securities, 492; Village of Ft. Edward v. Fish, 50 N. E. 973; State v. Delafield, 8 Paige 527; Hunt v. Fawcett, 36 Pa. 318; Wilson v. Herbert, 174 S. W. 861; Ulnler v. OUfmpia, 151 Pac. 117. The court’s attention is especially invited to this case, and also Spear v. Bremerton, 156 Pac. 825. In case of Hitchcock v. Galveston, 96 H. S. 341, relied on by appellant, and the Arkansas cases cited, decided on same principles, the suits were for the value of the work done or service rendered. Here the work was not completed. Bonds issued in violation of law can not be collected. Lindsay v. Bottaken, 32 Ark. 634; Arkansas Foundry Go. v. Stanley, 150 Ark. 127. The seller of the bonds split his fee with the purchaser, a flagrant evasion of the statute. The bond issue is invalid, and the judgment should be 'affirmed.
   McCulloch, C. J.

This is an action instituted in the chancery court of Independence County by appellant, the board of improvement of a local improvement district created by special act of the General Assembly, to enforce payment of unpaid assessments.

It appears from the pleadings that the assessment of -benefits was duly made in accordance with the terms of the statute, that a tax thereon was levied to pay the cost of the improvement, that a contract was let for the construction of the improvement, that bonds were issued and sold in the sum of $100,000 to raise funds to pay the cost of the improvement as the work progressed, and that the improvement was completed.

Owners of lands in the district filed answer, setting up as a defense that the bonds of the district were illegally sold for less than par, in violation of the statute requiring that the bonds should not be sold for less than par, and that for this reason there should be no collection of assessments to pay the bonds.

The court overruled appellant’s demurrer to this part of the answer, and there was a trial, which resulted in a decree dismissing the complaint for want of equity.

The court found from the evidence that the bonds had been sold for less than par, and decided that this rendered the bond issue void, and that there could be no recovery of assessments.

It appears from the proof adduced that the bonds were first sold to a certain bond-buyer at a price above par, but that the buyer later réfused to accept the bonds, and the sale was not consummated. In the meantime there had been a depreciation in the price of bonds of this character, and they could not be sold in the market at par value. A contract had been let, and the 'contractor was proceeding with the work, and, in order to secure a sale of the bonds, the contractor undertook to sell the bonds for the district, and did so at a price less than par, but the district allowed the contractor a brokerage fee of five per centum on the face of the bonds, and also, made certain other allowances, which, after being deducted from the face of the bonds, made it possible for a sale at a price offered by a bond dealer.

The contention is that the allowance of a brokerage fee and other items of credit to the contractor so as to effect a sale of the bonds constituted an evasion of the statute and rendered the bond sale void. This subject is fully discussed, and the law in reference thereto stated, in the recent case of Arkansas Foundry Co. v. Stanley, 150 Ark. 127.

There was also testimony introduced tending to show that the bonds, which were negotiable in form, are now in the. hands of innocent, purchasers for value.

We deem it unnecessary to determine ‘whether or not the circumstances under which the bonds were sold constituted an evasion of the statute so as to violate its terms and render the bonds void, and we also deem it unnecessarv to discuss the question whether the present holders of the bonds should be protected as innocent purchasers. The holders of the bonds are not parties to the present action, which is merely one to collect assessments on lands in the district, and a decision as to the validity of the bonds would not, for that reason, be binding on the holders of the bonds.

The question decisive of the case is whether or not, irrespective of the validity or invalidity of the bonds, the district has a right to collect assessments.

We are of the opinion that the allegation that the sale of the bonds was void does not constitute any defense to the action to collect assessments. It is undisputed that the district constructed the improvement as provided by statute, and that the district is liable for the cost of the improvement. It is unimportant to determine, in this case, in what way that liability shall be enforced. The district has received ithe benefit of the construction of the improvement and must pay for it, even though it should be held that the bonds were illegally sold. The case falls within the principles announced in the following cases: Fitzgerald v. Walker, 55 Ark. 148; Altheimer v. Board of Directors, 79 Ark. 229; Forrest City v. Bank of Forrest City, 116 Ark. 377; Hitchcock v. Galveston, 96 U. S. 341.

The decree is therefore reversed, and the cause is remanded, with directions to enter a decree enforcing the assessment against delinquent lands, in accordance with the prayer of the complaint.


author: Wood, J.

text:
    Briant v. Carl-Lee Brothers.
    Opinion delivered April 2, 1923.
    1. Appeal and error — conclusíveness op finding. — In an action on a note, a general finding of the trial court for plaintiffs would embrace a finding that money loaned was that of plaintiffs, and where there was evidence to sustain that finding it is as conclusive as the verdict of a jury.
    2. Appeal and error — trial by court — presumption.—Where a cause was tried by the court sitting as a jury, and no declarations of law were asked by appellant, it will be presumed that the court applied correct legal principles to the facts which the testimony tended to prove.
    3. Usury — burden of proof. — The burden of proof is on the party who pleads usury to show clearly that the transaction was usurious.
    4. Usury — -essentials.—To constitute usury, there must either he an agreement by which the borrower promises to pay, and the. lender knowingly receives, a higher rate of interest than is legal, or such greater rate of interest must be knowingly and intentionally reserved, taken or secured; and it is essential that there was a loan or forbearance of money, and that for such forbearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved.

      5. Usury — presumption.—The wrongful act of usury will never be imputed to the parties, and will not toe inferred when the opposite conclusion can toe reasonably and fairly reached.
    6. Usury — sufficiency of evidence. — Evidence held to justify a finding that a note given for -the loan of money was free from usury, and that the maker was bound by her contract.
    7. Usury — collateral agreement. — A parol collateral agreement to pay a bonus to certain parties to a contract for the purchase of an oil and gas lease, contingent on the subsequent sale of the lease at a profit, was not a part of the contract of purchase of the lease so as to vitiate the note given for its purchase.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed.

      U. A. Gentry and J. H.'Carmichael, for appellant.
    Carl-Lee Bros, could not maintain suit in their own name. Suit must be brought in name of real party in interest. Johnson v. Ankrum, 131 Ark. 557. All the money belonged to Mrs. Vaughan, and the suit against her was simulated, not bona fide, and the court erred in allowing suit to proceed, over objection made, in name of appellees. Bringing suit in name of appellees was part of the scheme to cover up usury. R. C. L. 211, sec. 12. Contract or note was usurious. See. 7354, Crawford & Moses’ Dig., § 7353, 7363, Id. Garvin v. Linton, 62 Ark. 370. All the testimony shows that Taylor offered to pay $300 in addition to the 8 per cent, interest for the use of $1,500 for 90 days, and that Carl-Lee Bros, and Mrs. Vaughan agreed, and furnished the money on that agreement. This brings case within rule of German Bank v. Deshon, 41 Ark. 331. "We have one case very ¡much like the explanations offered by appellees. Humphrey v. McCauley, 55 Ark. 143.

      Will G. Akers and G. Denison Cherry, for appellees.
    Carl-Lee Bros, were the parties in interest, and action properly maintained in their name. Sees. 7817, 7761, Crawford & Moses ’ Digest. Holder may sue in his own name. Craig v. Palo Alto Stock Farm, 16 Idaho 701, 102 Pac. 393; Utah Implement Co. v. Kenyon, 30 Idaho 407, 164 Pac. 1176; Harrison v. Pearoy, 174 Ky. 485,192 S. W. 513. At common law holder of legal title to note can sue in his own mame. Chaffee v. Shortie, 46 Okla. 199, 148 148 Pac. 686; New/ v. Hunt, 190 Mass. 378, 77 N. E. 502; Harris v. Johnson, 75 Wash. 291,134 Pac. 1048. Johnson v. Ahkru/m, cited, not in point in appellant’s contention. Mrs. Vaughan had no interest in the money. Contract not usurious. 91 Ark. 458; 25 Ark. 258; 144 Ark. 573. Burden of proof on party pleading usury. 105 Ark. 653 and cases cited. No declarations of law were given or refused, and court is presumed to have applied correct legal principles. Greenspon v. Miller, 111 Ark. 190; Blass v. Lee, 55 Ark. 329 The findings of circuit court sitting as a jury of same effect as verdict of jury. Rice v. Metropolitan Life Ins. Co., 152 Ark. 498. Valid contract not rendered usurious by later contract. Walter v. Adams, 138 Ark. 411; Haynes v. Stevens, 62 Ark. 491. The payment of the bonus was contingent on a profit in the transaction, and did not render transaction usurious. 56 Ark. 335; 81 N. W. 1098; 52 N: E. 690. Material difference between interest and what is termed ‘ ‘profit. ” 130 Ark. 116; 133 Fed. 462; 19 Atl. 685. Also bad right to pay brokerage. 27 R. C. L. 236; 51 Ark. 534; 11 S. W. 878, 14 A. S. R. 73; 4 L. R. A. 426; 57 Ark. 251; 08 Ark. 162; 105 Ark. 653.
   Wood, J.

The appellees, Reuben B. Carl-Lee, Edward A. Carl-Lee and Frank M. Carl-Lee, are partners doing business under the firm name of Carl-Lee Brothers. They instituted this action against Mrs. R. T. Briant, the appellant, C. J. Blount, Mrs. Frank Vaughan, Joe Johnson, Charles E. Taylor and Charles E. Becker. They alleged that the defendants executed and delivered to plaintiffs a promissory note in the sum of $1,500, due in ninety days, with interest at the rate of eight per 'Cent, per annum from maturity until paid; that the note was past due and unpaid. They pray for judgment on the note.

Mrs. Briant answered -and admitted that she, with the others,' executed the note set up in the complaint. She alleged that she signed the note on the representations of Charles E. Taylor that the note was secured by a trust agreement held by J. W. Melnaffy of Little Rock, Arkansas, and that the plaintiffs were put on notice of such agreement; that, but for such representations and understanding, she would not have signed the note; that the representations made to her were false and frauduTent, and that she was relieved from any responsibility on said note; that she was informed and believed that no mortgage or lien or other security was ever given; that plaintiffs knew of the representations that were made to her by Taylor to induce her to sign the note. She also set up that the sum of only $1,500 was advanced to her, whereas it was agreed by the plaintiffs through the defendant, Mrs. Vaughan, that, as part of the interest and for the nse of the money, the sum of $300 should be paid, which rendered the note usurious and void. Mrs. Briant’s answer was filed January 9, 1922, and on February 13 judgment by default was taken against the other defendants.

The appellees introduced in evidence the. note of February 15,1921, signed by the appellant and the other defendants mentioned in the complaint. The note recited as follows: “Ninety days after date, for value received, we promise to pay to the order of Carl-Lee Brothers (England, Arkansas) fifteen hundred dollars ($1,500), with interest at the rate of eight per cent, per annum from maturity until paid. The makers and indorsers of this note hereby severally waive presentment for payment, notice of nonpayment and protest, and consent that the time may be extended without notice thereof. This note is given for part of purchase price on the following described lands in Union County, Arkansas. This note is further secured by a certain trust agreement held by J. W. Mehaffy of Little Rock, as trustee. A lien is reserved on said property as security for the payment of this note, which is number-of a series of -- notes. If this note is not paid, on maturity, all unpaid notes of this series shall become and be due and payable at once.”

The testimony of C. E. Taylor, who negotiated for appellant and the others the loan for which the note was executed, was to the effect that, in order to get the loan through, he had to promise (that a $300 bonus would be paid for the use of the money, and he was to receive one-half of the bonus for himself, and was to contribute $50 or more to the $300. Tie was also required to execute a first mortgage on certain property he owned in Little Rock to secure the loan. He exhibited an instrument which he testified was a part of the transaction. By this instrument J. W. Mehaffy was constituted as trustee for the signers of the note, and the instrument recited that they had given to the trustee a'check for Carl-Lee Brothers for $1,500 drawn on the England Bank of England, Arkansas. The instrument directed J. W. Mehaffy, when the money was received on the check, to pay the sum to one P. A. Griffin as part payment on a certain oil and gas lease described therein as purchased from Griffin by W. H. Martin. The instrument directed Mehaffy, as trustee, to receive from Martin for the signers the sum of $6,300 and directed him to pay out of said sum $1,800 to Carl-Lee Brothers and the remaining two-thirds to the signers of the note, and to retain out of the moneys the sum of $250, to be deducted in equal amounts from the sums due the signers of the note. He further testified that it was made clear, in the conference he had with Mrs. Vaughan and one of the Carl-Lee Brothers, when he was negotiating the loan, that the money belonged to Mrs. Vaughan, but had been loaned by her to Carl-Lee Brothers. He stated that at conference the sum of $300 was discussed and agreed upon. He said that all concerned in the borrowing of the money would be very glad to pay it to Mrs. Vaughan or to Carl-Lee Bros., inasmuch as they had offered to pay other people at El Dorado a bonus of $300 to procure the loan, but had not succeeded in obtaining same. Taylor stated that he executed his note, secured by mortgage on his property mentioned, for the sum of $1,650. He was to make good that sum, and the other $150, when paid to the trustee and paid to Taylor, was to be retained by him. Witness exhibited and read a letter which he had received from .Mrs. Vaughan in which, among other things, she said: “The CarLLee $1,800— as I understand it — $150 of it goes to you. Of course my brothers will give you check for it as soon as money reaches them. ’ ’ And another letter in which she stated as follows: “Following up the discussion-of your suggestion in ’phone conversation that I should bear my part of the Carl-Lee note (my money).” She then states that the parties signing the note were morally obligated to pay $1,800, and further says: “It never occurred to me to want the $300 unless it came, as was expected, as a ‘cut in’ with others on the profit or. commission, and so I think it should appeal to the signers that we did regard the $300 as a share of the profits. * * * Again, my brother made it plain to you, by many repetitions, that I could not afford to lose not even a dollar, and you recall that you offered the mortgage upon his insistence that he would not consent to lending my money unless I was protected against any loss, however small. * * * I suppose I could go ahead and pay a part of the $1,800 and hold your note for the part I pay, based upon this agreement you gave my brother to protect me against any loss whatever,” etc. And still other letters, in which she stated, among other things, that she realized that the individual note given by Taylor was given in haste and at a time when it seemed there would be a good profit in it for all concerned. She further says: “It was given on the basis of the Carl-Lee Brothers cutting in on the profits, and I have no intention of holding the note for any more than the $1,500.” And another letter in which, she refers to the fact that the Carl-Lee check was not to be paid out to Griffin until certain conditions had been complied with, which, she reminded Taylor, had not been done. In this letter she further states: “You told me to sign the note (for my own money) so that the others would not know the Carl-Lees were my brothers or suspicion the money was coming' from me. * * * In some way I must have some money in on the note.”

Taylor further testified that in the conference he had with Mrs. Vaughan and Carl-Lee, when he got the money, Carl-Lee gave him a check for $1,500 signed by the Carl-Lee Brothers. The check was introduced in evidence. A letter was introduced which was written by Taylor to Mehaffy, in which he states that he had obtained $1,500 from Carl-Lee Bros., a check for which he was inclosing. In this letter he refers to his difficulty in obtaining the money, and stated that he had to make the Carl-Lee Bros, safe in other ways, as they didn’t wish to lend their money on an oil deal, and he asked Mehaffy, trustee, to protect him by having the parties interested with him in the commission sign a note for $1,800, with interest at eight per cent, from maturity, etc. He enters into detail in explaining the deal that he -was endeavoring to put over. Among other things he states that if the sale of the lease, for any reason, were not made to the respective purchaser, then the seller should return the sum of at least $1,500 to reimburse the Carl-Lees and to relieve him (Taylor) of embarrassment. Further along in his testimony he said that the reason he stated in the letter to Mehaffy that it was Carl-Lees’ money was because it was Carl-Lees’ money. They requested him to do it. Carl-Lee Bros, gave witness a check on their own account. ’Witness further stated that he and Mrs. Briant worked in connection with the deal in an effort to put it over. She had this kind of an arrangement with witness. She was concerned in finding leases, and she and witness are working together in disposing of them, and were dividing the commissions. They were in the same office. Mrs. Briant first found the tract involved in this transaction. She got in touch with Mrs. Vaughan, and then Mrs. Vaughan came to witness to get him to dispose of the lease. The $300 commission referred to was to be paid out of the commission — the first commission that was collected — and those malting the sale didn’t expect it unless the deal went through. It was understood that if the deal didn’t go through Carl-Lee Bros, were only to receive the sum of $1,500. The $300 was to be paid as brokerage to Mrs. Vaughan and witness for finding the money, but was not to be paid unless a profit was made.

Mrs. Briant held the option on the Griffin lease, and it was therefore her property that was the basis for the trade. Witness and his associates sold it to Johnson Investment Company. The trade was agreed upon at. the time the witness had the conference with Carl-Lee and Mrs. Vaughan. He advised them at the time that the raising of the $1,500 was necessary to handle the deal. The understanding was that the full amount of $1,'800 was to be paid out of the commission that was to be received by witness and his associates in the deal. The reason the $1,800 was not paid was because the parties buying the lease fell down on their payments after the deal was consummated, and didn’t go through with the trade. It was the understanding that, if the trade fell through, only $1,500 was to be paid to Carl-Lee Brothers. Witness and his associates made the note for $1,500 only, the amount that in any event would have to be.returned to Carl-Lee Brothers. Witness -and his associates were to receive a commission of $4,800 from the owner of the lease if the sale of the same had been consummated. When the arrangement was made to pay a bonus of $300, witness contemplated that it would be paid out of their commission. Mrs. Vaughan was interested in the deal.

Mrs. Briant testified that she did not know anything about the contract of getting the $1,500 from Carl-Lee Brothers. Her understanding was that she was to pay her pro rata of $300 for the use of $1,500. She did not have that understanding with Carl-Lee Brothers or Mrs. Vaughan. She signed the trust agreement, and under: stood positively that $1,800 was to be paid. As it was explained to her, she was paying her part of the $300 for the use of the $1,500 in order to raise money to consummate the deal. The option of the lease belonged to her. It was not mentioned to her that the $300 was only to be paid in case the deal was consummated. The first she knew of the $1,500 was when she was told that it had been procured, and she talked with Mrs. Vaughan over the telephone, and Mrs. Vaughan told her that the $1,500 was raised through her kinspeople, and that Mr. Taylor had put up his property to secure this. If she had not thought the deal was going through, she would not have signed the note for $1,500. She was under the impression. that it was Carl-Lee Bros.’ money until she saw the letters of Mrs. Vaughan to Taylor. She understood the purpose for which the agreement was drawn up and the full transaction in regard to the deal. After learning that Mr. Taylor was expecting 60 per cent, and Mrs. Vaughan 40 per cent, of the commission, she called them to say there was no need of going further.

The salient facts testified to by Carl-Lee are that the note upon which the cause of action was founded was for money loaned by the Carl-Lee Brothers to the signers of the note. At the time the note was executed Carl-Lee Bros, owed Mrs. Vaughan, their sister, seventeen or eighteen hundred dollars. Witness was asked if it wasn’t stated and agreed on in the conference between himself, Mrs. Vaughan and Taylor that Carl-Lee Brothers would put up the money for her, and take the note in their name. Witness answered, “No, I didn’t understand it that way at all. I understood that we were to be secured — that’s the way — and we were going to hold Mrs. Vaughan; that was the understanding, that she would have to guarantee me against loss.” Further on in his testimony he said he accepted a note from Taylor, secured by mortgage on his property, for $1,650 as an additional security for tbe $1,500. Taylor said he wanted to put half of the profits in the note executed by him — that is, half of the $300 they_ were to pay to the parties that furnished the money. They agreed to give witness $300 out of the profits as part of the consideration for the loan. Witness wrote Taylor if there were no profits made he didn’t hold him responsible for it. The $300 was to be paid out of the profits. The witness categorically denied that he told Taylor that it was Mrs. Vaughan’s money. Witness didn’t tell Taylor that it was her money, for it was not her money. Witness knew that Mrs. Vaughan was interested in the deal, but positively denied that it was Mrs. Vaughan’s money that he was loaning to Chas. E. Taylor and other parties who executed the note.

Upon substantially the above testimony the cause was, by consent, submitted to the court sitting as a jury, and the court found that the appellant was indebted to the appellees in the sum of $1,500, with interest at the rate of 8 per cent, per annum from the 15th of February, 1921, and rendered a judgment in the sum of $1,693.33, from which is this appeal.

1. The appellant contends that the undisputed evidence shows that the money loaned to Taylor and his associates was the money of Mrs. Frank Vaughan, and that therefore the action could not be maintained in the name of Carl-Lee Brothers. The general finding of the trial court in favor of the appellees would embrace a finding that the money loaned to Taylor and others was the money of Carl-Lee Brothers, and not the money of Mrs. Vaughan. The appellant did not ask the court to make any special finding of fact. The findings of fact by a trial court sitting as a jury are as conclusive as the verdict of a jury, and will not be disturbed where there is any substantial testimony to support the same. See Dunnington v. Frick, 60 Ark. 250, and other cases cited in Crawford’s Digest, p. 5051; Greenspan v. Miller, 111 Ark. 190; Rice v. Metro. Ins. Co., 152 Ark. 498.

Certainly it cannot be said that there is no substantial evidence to sustain a finding that the money in controversy was the money of Carl-Lee Brothers, rather than the money of Mrs. Vaughan. Such being the case, we must hold that the finding of the trial court to that effect was conclusive. See Trumann Cooperage Co. v. Crye, 137 Ark. 293; Scott v. Wis. & Ark. Lbr. Co., 148 Ark. 66. Therefore Carl-Lee Brothers had the right to maintain this action.

2. The appellant next contends that the note was void for usury. No declarations of law were asked by the appellant. It will therefore be presumed that the court applied the correct legal principles to the facts which the testimony tended to prove. Blass v. Leigh, 55 Ark. 329; Greenspan v. Miller, supra.

To determine whether or- not a contract is usurious, the following rules of law have been often announced by this court: “The burden of proof is upon the party who pleads usury to show clearly that the transaction was usurious.” Smith v. Mack, 105 Ark. 653, and cases there cited.

“To constitute usury there must either be an agreement between the parties by which the borrower promises to pay, and the lender knowingly receives, a higher rate of interest than the statutes allow for the loan or forbearance of money; or such greater rate of interest must be knowingly and intentionally 'reserved, taken or secured’ for such loan or forbearance. It is essential, in order to establish the plea of usury, that there was a loan or forbearance of money, and that for such forbearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved. The wrongful act of usury will never be imputed to the parties, and it will not be inferred when the opposite conclusion can be reasonably and fairly reached.” Briggs v. Steele, 91 Ark. 458-462, and cases there cited. See also Gillam v. Peoples, 144 Ark. 573.

Now, tlie note which is the foundation of this action on its face does not bear the taint of usury. Applying the principles of law to the facts as they might have been found by the court, we are convinced that the ruling of the court that the transaction was free from usury was correct, and that the appellant is bound by the contract. As we have already stated, the testimony, justified a finding that the money was the money of Carl-Lee Brothers and not the money of Mrs. Vaughan.

3. The trial court was also warranted in finding that the $300 referred to in the testimony of Mr. Taylor as a bonus to be given the lenders was in reality nothing more nor less than brokerage that .was to be paid to him and Mrs. Vaughan for finding the money. For Taylor, in his testimony, says: “Ques. It 'was not your intention to pay more than $1,500 unless a profit was made on the transaction, and this $300 was to be a part of the profits and no interest on the money? That is a fact?” “Ans. It was brokerage to Mrs. Vaughan and me for finding the money.” “Ques. All right, but was not to be paid unless a profit was made?” “Ans. No, sir.”

Therefore, if it be conceded that Carl-Lee Brothers would not have loaned the $1,500 to Taylor and his associates on the note except upon the inducement that Taylor and Mrs. Vaughan promised to give Carl-Lee Brothers a bonus of $300, nevertheless it is quite clear that the court might have found that the only promise exacted of the appellant and the other makers by Carl-Lee Brothers was thát they should pa}r for the use of the $1,500 only eight per cent, interest. The $300 bonus promised to Carl-Lee Brothers was based wholly upon the contingency that the lease would be sold and a profit or commission realized therefrom by Taylor and his associates. The testimony of both Carl-Lee and Tavlor shows that it was the understanding that Carl-Lee Brothers was not to get any bonus unless there was a profit or commission realized by the sale of the lease, This arrangement did not enter at all into the contract evidenced 'by the note in which the appellant and others promised to pay only the sum of eight per cent, for the use of the money loaned to them by Carl-Lee Brothers. The note evidenced an absolute contract to that effect, and it does not include within its terms an agreement to pay any more than such rate, of interest, which is not in excess of the highest contractual rate of interest authorized under our Constitution and statutes. Art. 19, § 13 of the Constitution; § 7362, C. & M. Dig. The contingency upon which the bonus was to be paid was wholly foreign to the agreement to pay so much for the use of the money.

In Reeve v. Ladies’ Building & Loan Assn., 56 Ark. 335, we' said: “There is, then, in the transaction an element of uncertainty, a hazard, that seems to exclude the idea of a loan of money at a usurious rate of interest. Where the promise to pay a sum above legal interest depends upon a contingency, and not upon the happening of a certain event, the loan is not usurious. Citing Spain v. Hamilton’s Admr., 1 Wall. 604; Tyler on Usury, p. 98; Lloyd v. Scott, 4 Pet. 205; Parker v. Fulton Loan & Bldg. Assn., 46 Ga. 166. It occurs to us that the court, from the testimony set forth in this record, was certainly justified in finding that there was no device, shift, or cloak in the transaction between Carl-Lee Brothers and Taylor to cover up a usurious contract for the loan of money. The contract for the use of the money only contemplated the payment of eight per cent, interest unconditionally. The contract for the payment of the bonus as an inducement for making the loan was based wholly upon a contingency, an uncertain event, which event never happened. Such a contingency as that cannot be held to vitiate a valid contract for the loan of money at a lawful rate of interest.

The judgment of the court is therefore correct, and it is affirmed.