text:
    Davis v. Road Improvement District No. 7.
    Opinion delivered January 21, 1924.
    1. Statutes — special act — thirty-day notice.— The presumption that the thirty-day notice required by the Constitution (art. 5, § 26) before a bill for a special act can be introduced in the Legislature, was given for the passage of Road Laws 1919, vol. 1, p. 1205, creating a special road district, is conclusive.
    2. Statutes — legislative finding as to necessity for special act. —The legislative finding, under Const., art. 5, § 25, as to the necessity of passing Road Laws 1919, vol. 1, p. 1205, a special act creating a road district, is conclusive.
    3. Statutes — description of road. — In 1 Road Laws 1919, p. 1205, creating a road district, indefinite words describing the road as passing through a certain town “on streets to be selected by the commissioners, to a point near the east quarter corner of section 27,” etc., obviously constituted a clerical error not affecting the validity of the district, especially since the act authorized the commissioners to adopt the most favorable route.
    4. Highways — basis of assessment. — A statute creating a road improvement district need not specify a basis for assessment of property, but may leave the ascertainment of a basis to the board of assessors appointed by the commissioners.
    5. Highways — correction of clerical errors. — Where assessments of land in a road improvement district were made by zones, and clerical errors in placing some lands in the wrong zones were corrected before the assessments were extended on the taxbooks, the clerical errors did not invalidate the assessment.
    6. Highways — validity of order assessing taxes. — Where it did not appear that the installments of taxes levied by the county court for a road improvement district exceeded the benefits, the order was not void on its face, and the remedy for correcting any errors, under 1 Road Laws 1919, p. 1213, § 8, is exclusively by appeal.
    7. Highways — building of laterals — mode of assessment. — Where a statute creating a road improvement district provided for the assessment of -benefits and taxation of lands contiguous to certain laterals, the fact that all of the lands were embraced in one assessment list did not invalidate the entire assessment, as the funds arising from the taxes for the laterals could be separated from the taxes for the main line.
    8. Highways — objections to mode of assessment. — The validity of an assessment of benefits in a road improvement district cannot be questioned in equity on the grounds that the assessors adopted an improper system, or made arbitrary and discriminatory assessments, -or that the assessments made were confiscatory; the remedy for raising such questions being by appeal.
    Appeal from Litilo River Chancery Court; A. P. Steel, special chancellor;
    affirmed.

      E. F. Friedell and Evans £ Evans, for appellants.
    1. The assessment of benefits upon which the taxes in this suit are sought to be collected was filed November 10, 1920, and was an assessment made without notice to the landowners, and without notice given of a time and place when and where the taxpayers could be heard. It is therefore void as in violation of the due process and equal protection clauses of the State and Federal Constitutions. The burden was upon the plaintiff to make out its right to recover by a preponderance of the evidence, and this included a showing by the greater weight of the evidence that due notice of the assessment was given in the manner required by law.
    2. The act, No. 292, attempting to create the district, is void because too indefinite and uncertain in the description of the roads to be improved. There is no such thing as an “east quarter corner” of a section of land, and such a description of a terminal point or of a direction point in the road describes nothing.
    3. The act is void, because it violates art. 5, § 25, of our State Constitution, since, at the time this act was passed, there was a general law upon our statute books applicable to the subject covered or attempted to be covered by this act. While this court, in Davis v. Gaines, 48 Ark. 384, appears to hold that the provisions of the Constitution with reference to the enactment of special laws where general laws can be made applicable, and with reference to the passage of local laws without notice, are merely directory and not mandatory, yet, upon review of the authorities in Booe v. Road Improvement District, 141 Ark. 140, it held that the provision with reference to the enactment of local laws without notice is mandatory and binding upon the Legislature. Under the reasoning ■ in that case, it must be held that the constitutional provision against the enactment of a special law where a general law can be made applicable, is mandatory.
    4. The court erred in sustaining the demurrer to the seventh paragraph of the answer setting up, in effect, that a considerable body of land in the district, owned by various church organizations, was intentionally omitted from ■ the assessment of benefits, and intentionally not levied upon for the purpose of making the improvement. Article 2, § 8, State Constitution, and the 5th and 14th Amendments, U. S. Constitution; 69 Ark. 68; 130 Ark. 70.
    5. The commissioners failed to comply with § 26 of the -act, authorizing the commissioners to build lateral roads, in that they did not make separate assessments of benefits on the lands supposed to be benefited by the proposed lateral roads, but such assessment and the levy of taxes thereon was made upon one assessment of benefits for improving the two primary roads and the six lateral roads. The assessment and levy were therefore void, being in violation of the due process and equal protection clauses of the State and Federal Constitutions. The only justification for the imposition of special taxation is that special benefits are to be enjoyed. 155 Ark. 309; 86 Ark. 1.
    6. The court erred in sustaining the demurrer to the 10th paragraph of the answer, alleging that the act prescribes no definite standard for determining or assessing the benefits. Article 2, § 8, Constitution of Arkansas; 5th amendment U. S. Constitution; 14th amendment, Id.; 256 U. S. 658, 65 Law. ed. 1151.
    7. The assessment of benefits is discriminatory and void, since, under the .zone system adopted, the assessment was not made according to a standard which would probably produce approximately correct general results-, nor approximately correct individual results. 256 U. S. 658, 65 L. E. 1141.

      Otis Gilleylen, for appellee.
    1. The assessment of benefits upon which the taxes are sought to be collected w-as filed July 18,1919, and was made the basis of the levy of taxes by the county court on the real property in the district by its order and judgment of September 26, 1919. The so-called assessment insisted on by appellant as having been filed November 10, 1920, was not an assessment, but a copy of the original, wherein certain obvious clerical errors were corrected. The determination of this issue presented a question of fact for the court, and its finding should be sustained. The method provided by the statute for attacking the validity of the assessment is exclusive. It has become final in this case, and collateral attack will not lie, unless the assessment is void on its face. 156 Ark. 2'26; 155 Ark. 89; 151 Ark. 48-4; 153 Ark. 85; 144 Ark. 632.
    2. On the question of the burden of proof, § 8 of the act 292 provides that the remedy against such levy of taxes shall be by appeal, which must be perfected within twenty days from the time the levy is made, ancl that, on such appeal, “the presumption shall be in favor of the legality of .the tax.” See also § 12 of the act; act No.' 223, Acts 1921; act No. 534, Acts 1921, §§ 1, 2, 4. One who complains that an assessment is excessive, confiscatory, etc., has the burden of proof. 145 Ark. 382.
    3. The description of the road to be improved, as found hi § 1 of the act, contains the starting point, direction points and terminal point. Moreover, § 2 provides that said roads will follow the best route attainable and adhere to the existing roads as near as practicable, and that, if any part of said roads has not been laid out as a public road, it shall be the duty of the county court to lay the same out in accordance with act No. 422, Acts, 1911. The description is sufficient. 142 Ark. 52; 147 Ark. 469. A construction invalidating an act should not be adopted, if a construction upholding its validity can be placed upon it not inconsistent with any of its parts. Wimberly v. Road Imp. Dist.”No. 7,161 Ark. 79.
    ■4. The contention that the act violates art. 5, § 25, of • the Constitution is without merit. This court has held that this provision is merely cautionary to the Legislature. 35 Ark. 69; 48 Ark. 370; 80 Ark. 333; 142 Ark. 52, . dissenting opinion.
    5. The remedy of a property owner whose rights have been infringed upon by the omission of lands from the assessment' of benefits, is not to impeach the validity of all of the assessments in the district, (but to move for the proper assessment of the omitted lands. 158 Ark. 357.
    6. The objection raised that the assessment was invalid because there was no separate assessment of benefits for the purposes of the lateral roads has been determined adversely to appellants’ contention, in the case of Davis v. GooTc, 159 Ark. 84.
    7. Paragraph 10 of the answer, alleging that the act provides no definite standard for determining’ benefits, etc., fails to allege any abuse of discretion on the part of the commissioners or assessors. If appellants felt that their assessments were excessive, they should have availed themselves of the remedy provided in the act.
   McCulloch, C. J.

Appellee is a road improvement district, created by special statute enacted at the regular session of the General Assembly in the year 1919 (vol. 1 Road Acts, 1919, p. 1205), and the commissioners of-the district instituted this action in the chancery court of Little River County to enforce payment of delinquent assessments. Appellants, who were owners of lands in the district, appeared and filed an answer, attacking the-validity of the statute creating’ the district as well as the validity of the assessment of benefits. The court sustained a demurrer to some of the paragraphs of the answer, and there was a trial of the issues on other paragraphs, which resulted in a decree in favor of appellee, foreclosing the lien on the lands of appellants for the delinquent assessments. An appeal has been prosecuted in .apt time.

The validity of the statute is attacked on the ground that notice of the introduction of the bill was not given as required by the provisions of the Constitution, and also that the enactment was in conflict with the provision of the Constitution that “where a general law can be made applicable, no special law shall be enacted.” Constitution of 1874, art. 5, § 25. These questions have been so often decided by this court against the present contention of appellants that it is unnecessary to discuss them at this time. We must treat the questions as settled that a conclusive presumption will be indulged that notice of the introduction of the bill for the statute was given .and that the legislative finding as to the- propriety and necessity of passing a special law was conclusive. Booe v. Road Improvement District, 141 Ark. 140.

The validity of the statute is also assailed on this ground that the description of the road to be improved was too uncertain to afford identification. The description is as follows:

“A road beginning on the north side of the railroad, on the western boundary of the county, in section twenty-six (26), township eleven (11) south, range thirty-three (33) west, and running southeasterly and southerly to the south line-of section twelve (12), township twelve (12) south, range thirty-three (33)-west; thence easterly and southerly through said town of Rocky Comfort, or Foreman, on streets to be selected by the commissioners, to a point near the east quarter corner of section twenty-seven (27), township twelve (12) south, range thirty-two (32) west, thence southeasterly and easterly to the boundary of the district on the north line of section six (6), township thirteen (13) south, range twenty-nine (29) west. ’ ’

The contention is that that portion of the description which refers to “a point near the east quarter corner of section twenty-seven” is indefinite, in that there is no point to which it can definitely refer. This is an obvious clerical error, and does not affect the validity of the description. The language in question describes a cem tain public road, and part of it runs through the town of Foreman (or Rocky Comfort, the other name by which the' town is designated), and an error in one of the calls does not lessen the effectiveness of the description as a designation of this road. The statute authorizes the commissioners to adopt the most favorable route through the town, and, even if the description were not otherwise sufficiently definite, the error would be cured by the authority of the commissioners to select a route through the town. This attack on the validity of the statute is therefore unfounded.

It is next contended that the statute is void because it fails to prescribe the standard to be adopted by the assessors in appraising benefits. It is true that the statute does not provide a specific basis for determining benefits, but § 5 merely provides that the commissioners “shall appoint three assessors, who shall proceed to assess the lands within the district, and shall inscribe in a book each tract of land, and shall assess the value of the benefits to accrue to such tract by reason of such improvement.” The clear meaning of this provision is to require the ascertainment of actual benefits to accrue from the improvement, and it is left to the assessors to consider all elements which enter into the question of benefits and to assess according- to actual benefits: It is not essential to a law authorizing- an assessment that there shall be a special direction as to the basis to be adopted. The lawmakers may specify such basis as a legislative determination that actual benefits will accrue in accordance therewith, but it is not essential that the basis of valuation be specified in the law. It is sufficient merely to provide for an assessment according to actual benefits. Learned counsel for appellants seem to think that the effect of the decision of the Supreme Court of the United States in Kansas City Southern Ry. Co. v. Road District, 256 U. S. 658, is to hold that the Legislature must specify the basis of the assessment of benefits, but we do not think that the decision in question is an authority to that effect.

The atttack on the validity of the assessments begins with the contention that the list of the assessments sued on was not the basis of the order of the county court levying the taxes, and that no notice was given of the filing of the assessments in accordance with the statute so as to afford the landowners an opportunity to be heard. The facts of the case, as disclosed by the record', are against this contention of appellants. The assessors adopted what is termed the zone system of assessments, and filed the list of assessments, as provided by th$ statute, with the county clerk on July 18, 1919, and the order of the county court levying the taxes was entered on September 26, 1919, based on the list of assessments filed by the board of commissioners. It .appears from the evidence in the case that, before the taxes were actually extended on the taxbooks, it was discovered that there were clerical errors in placing some of the tracts in the wrong zone, and this was corrected, in the extension of the taxes, so as to place them in the zone to which they belonged and to extend the taxes in accordance with the-benefits assessed on lands in those zones. Under the direction of the commissioners, an employee made a copy of the assessment list with the proper corrections thereon as to the zones, and this copy was certified by the commissioners and-left with the clerk to be used in the extension of the taxes. The proof shows that the original assessment was the basis of the county court’s order in levying the taxes. The validity of the assessments was not affected by the obvious errors, in some instances, of putting certain tracts in the wrong zone, for the assessment itself showed that land a certain distance from the road was to be placed in a certain zone, and this made any error in placing land in the wrong zone an obvious one. In other words, the assessment shows on its face that the benefits on all lands were assessed in accordance with the location in zones, therefore the location of the land determined the amount of appraised benefits.

It is also contended that the order of the court levying the tax on assessments was void because the levy was for an amount in excess of the actual cost of the improvement. Section 8 of the statute provides that the remedy against the levy made by the county court must, be by appeal, and we have held that the remedy by appeal is exclusive, unless the assessment is void on its face. Pierce v. Drainage District No. 17, 155 Ark. 89. It does not appear that the installments of taxes levied by the county court were in excess of the benefits, therefore the order is not void on its face, and the remedy for the correction of errors by appeal is exclusive.

Again, it is contended that the assessment of benefits was void for the reason that there was not a separate assessment for the lateral roads authorized under the statute to be constructed. The statute does provide for the assessment of benefits and taxation thereon for the construction of laterals, but it does not appear that the lands contiguous to the laterals were not separately assessed under the zone system for that purpose. It is true that the lands were all embraced in a single assessment list, but it does not follow, from this mode of assessment, that the funds arising from the taxes could not be separated so as to be devoted to the identical purposes for which they were to be collected under the statute. This same question was raised in the recent case of Davis v. Cook, 159 Ark. 84, involving the affairs of the same district, and it was decided that the assessments of the laterals were, in effect, separately made. We think that it is the same in the present case. The present proceeding is not one in wdiich the action of the commissioners in the expenditure of funds arises, and there is no attempt to show here that the commissioners have abused their powers in using funds taxed for one part of the improvement to pay for another portion of the improvement. Of course, there is a remedy for any abuse of power, but those questions are not presented here now.

The validity of the assessment is also attacked on the ground that it was improper for the assessors to adopt the zone system; that the assessments were arbitrarily made, without regard to value or condition of the particular tracts of land; that the assessments were confiscatory; and that there was discrimination in omitting from the assessment lists real property owned by certain churches in the district. The answer to all of these contentions is that the statute provides a direct method of attacking the assessments within a limited time, and, unless the assessment list is void on its face, the statutory method for testing the validity is exclusive. Many recent decisions of this court are decisive of the question. Road Imp. Districts v. Crary, 151 Ark. 484; Pierce v. Drainage District No. 17, 155 Ark. 89; House v. Road Improvement District, 158 Ark. 330.

We have decided that the adoption of the zone system is not, on its face, an erroneous basis for assessing benefits. Of course, on a direct attack upon this method of assessment, a landowner has the right to show that the adoption of the system does not .afford a proper method of establishing a uniform assessment, but the attack oil this ground must be a direct one, and not collateral, as in the present case. There is nothing on the face of the assessments, in the present case, to show that they are .arbitrary or unjust or that all the elements entering into the question of benefits were not considered in adopting this method of assessing.

This disposes of all of the alleged grounds of attack on the validity of the statute and of the assessments of benefits, and, as we have concluded that all of the attacks are unfounded, it follows that the decree must be affirmed, and it is so ordered.

Wood and Habt, JJ., dissent.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Guild v. Whitlow.
    Opinion delivered January 21, 1924.
    1. Physicians-and surgeons — conditional, contract for compensation. — A physician, may make a contract whereby his right to compensation may be dependent upon his curing the patient by treatment or operation.
    2. Frauds, statute of — original undertaking. — Where a surgeon examined a patient, and thereafter made an agreement with the patient’s brother for a fee for operating, the latter’s agreement to pay therefor -is an original undertaking, and not within the statute of frauds.
    3. Physicians and surgeons — fee for operation — instruction.— An instruction that, if defendant was induced to agree to pay plaintiff, a .surgeon, a specified amount for an operation in reliance on plaintiff’s representation that such sum was a reasonable charge, and if the sum charged was an excessive fee, then defendant would be liable only for a reasonable fee, held erroneous; there being no evidence that the representation was fraudulent.
    4. Physicians and surgeons — recovery on quantum meruit. — In case of emergency, where a patient or the person employing a surgeon was laboring under such great excitement or stress of mind that an unconscionable advantage was • taken of him, the contract will be set aside on the ground of fraud, and recovery ■ allowed on a quantum meruit.

    5. Physicians and surgeons — fraud' in contract. — -It cannot be said that a contract for a surgeon’s fee was procured by fraud because he charged more than other surgeons of the same locality charged for similar operations.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.
    STATEMENT OE FACTS.
    W. A. Guild is a surgeon, and brought this suit against R. H. Whitlow to recover the sum of $1,000, alleged to be the balance due him upon a contract with the defendant for operating upon the latter’s sister.
    R. H. Whitlow defended the suit on the ground that he had. not made the contract sued on, and that the contract he did make with the plaintiff was conditioned upon the operation upon his sister being successful, and that she died as the result of it within a few days. He had already paid the plaintiff $500 of his fee, and he made his answer a cross-complaint to recover this sum from the plaintiff.
    Dr. W. A. Guild was the principal witness for himself. According to his testimony, he lives in Des Moines, Iowa, and is a graduate physician and surgeon. He has license to practice in the States of Arkansas, Iowa, and Florida. In February, 1921, while at Hot. Springs, Ark., he was called to Rogers, Ark., to see Mrs. Freeman, the sister of R. H. Whitlow, who was at that time in the sanitarium of Dr. Love. He arrived at Rogers on the morning of February 24, 1921, and, after consultation with Dr. Love, made an immediate examination of Mrs. Freeman. The defendant then came to the hospital and consulted with the plaintiff about the operation. The plaintiff had an agreement with the defendant about his fee for operating, and the defendant agreed to pay him $1,500 for the operation. Dr. Love was present at the time. Mrs. Freeman was too sick to be consulted about the matter. The plaintiff then operated upon Mrs. Freeman, and was assisted by Dr. Love and two other physicians. After the operation was performed the defendant gave a cheek to Dr. Love for $500, which was indorsed by Dr. Love to the plaintiff. At the same time the defendant • told the plaintiff that he would see that the balance of the $1,000 was in Des Moines by May 1, and said that the plaintiff need not write to him about the matter. The plaintiff denied that there. was any agreement that the operation would be successful, or that his fee was in any way conditioned, upon the success of the operation. The plaintiff explained the difficulties of the operation to Mr. Whitlow' as best he could. He was informed by Whitlow, and it was an evident fact, that Mrs. Freeman was addicted to the use of morphine. He performed the operation in good faith, under the agreement made with Whitlow that the latter would pay him $1,500 for his services. The testimony of the plaintiff was corroborated by that of Dr. Love and Susan A. Lowdermilk, a nurse, who attended Mrs. Freeman at Dr. Love’s sanitarium. Evidence for the plaintiff also showed that the operation was performed in a skillful manner.
    R. H. Whitlow was the principal witness for himself. According’ to his testimony, he went to Texas and brought his sister, Mrs. Mary Freeman, to his home at Rogers, Ark., in January, 1921. Dr. Love was his family physician, and was called to see her. In February, 1921, Mrs. Freeman was carried to the sanitarium of Dr: Love in Rogers. Dr. Love advised the defendant that' his sister needed an operation badly,; and, oiving* to his confidence in Dr. Love, the defendant told him that the case was in his hands, as far as he was concerned. The defendant, however, would not consent to an operation until he had taken the matter up with Mrs. Freeman’s husband. Dr. Love suggested Dr. Guild as the best man to perform the operation. Dr. Love then sent for Dr. Guild to come to Rogers. After Dr. Guild had arrived and examined Mrs. Freeman, the defendant was sent for. Dr. Guild told Mm that an operation was necessary, and would cure Mrs. Freeman. Dr. Guild told defendant that the price of his services would be $1,500. The defendant told Dr. Guild that neither he nor Mrs. Freeman’s husband was in a position to pay $1,500. Dr. Guild said that was all right, and that he would perform the operation any way. Dr. Guild told the defendant that the operation would absolutely cure Mrs. Freeman; that-he knew that her condition would be easily remedied by the operation, and stated that, within two or three weeks, she would be able to go out driving in an automobile. Dr. Guild told him that $1,500 was a reasonable fee for the operation. The defendant paid $500, upon the reliance of the statements of Dr. Guild in reference to his sister’s condition and the success of the operation. In other words, Dr. Guild warranted that the operation would be successful. The defendant was ignorant of what would constitute a reasonable charge for an operation of this kind, and relied upon the statement of Dr. Guild that $1,500 was a reasonable fee. After the operation was over, and at the time the defendant paid Dr. Guild the $500, he told him that, if his sister got well and that the result of the operation was such as Dr. Guild told him it would be, he would see that he got a thousand dollars additional by the first of May.
    Several physicians and surgeons testified that $200 or $250 would have been a reasonable fee for an operation of -that kind. Mrs. Freeman died, as the result of the operation, in two or three days.
    The jury returned a verdict in favor of the defendant, on his cross-complaint, for $250. The. case is here on appeal.

      Sulims £ I vie, tor appellant.
    The court erred in giving instruction No. 9 requested by the defendant. Where a valid contract has been made as to the amount of compensation to be paid for medical services, no question as to.the actual value of the services can arise. 30 Cyc. 1599; 97 N. Y. Supp. 389; 91 N. W. 322.

      Duty £ Duty, for appellee..
    Ruling not urged or discussed in the brief of counsel will be deemed to have been waived. 108 Ark. 357; 90 Ark. 608 In the absence of an express agreement, a physician or surgeon is entitled to reasonable compensation for his services. 83 Ark. 601. Where an express agreement is made, but it is shown that such contract is obtained by undue influence, or by fraud or imposition, or where it is shown that the compensation is so clearly excessive as to amount to extortion, the courts will protect the party aggrieved and will grant relief. 110 U. S. 42; 84 Ark. 575; 15 Am. Dec. 572; 201 111. 86; 23 Kans. 474. Instruction No. 9 was correctly given. 110 U. S. 42.
   Hart, J.,

(after stating the facts). The theory of the plaintiff was that he had made an express contract with the defendant whereby the latter agreed to pay him the sum of $1,500 for operating on Mrs. Freeman, the defendant’s sister. He seeks to recover the balance due him under the contract.

On the other hand, it was the theory of the defendant that the plaintiff was not entitled to- compensation unless the operation was successful and the patient was entirely cured.

Special contracts with physicians -or surgeons upon the principle of “no cure, no pay,” are generally held valid. They are conditional contracts, and there seems to be no .reason why a physician may not enter into a contract whereby his right to compensation may be dependent upon his curing the patient entirely by treatment or by operating upon him. Jones v. King, 81 Ala. 285; Mock v. Kelly, 3 Ala. 387; Hollywood v. Reed, 57 Mich. 234; Fisk v. Townsend, 7 Yerger (Tenn.) 146; Smith v. Hyde, 19 Vt. 54, and Dye v. Corbin [Sup. Ct. of Appeals W. Va.) 53 S. E. 147.

In Henderson v. Hall, 87 Ark. p. 1, the plaintiff sought to recover for medical services under an express contract to pay a certain sum. The defendants admitted having employed the plaintiff, but denied having agreed to pay him any particular sum. The court held that it was not error to instruct -the jury that, if defendant agreed to pay the sum named, they should find for plaintiff accordingly; but, if there was no contract for any certain amount, the jury should find for the plaintiff a reasonable compensation for the services rendered.

Thus it will be seen that it is well settled that a physician or surgeon may make an express contract whereby he is to receive a stipulated sum for his services, or he may make a special agreement to cure his patient by an operation or, in case he fails ¡to do ¡so, to receive no pay.

The respective theories of the parties, under the principles of law decided above, were submitted to the jury, in certain instructions given by the court. In this connection it may also be stated that, under the testimony of the plaintiff, the agreement of the defendant was an original undertaking, ¡and not a collateral one within the statute of frauds. In Cleveland v. Maddox, 152 Ark. 538, the plaintiff testified that defendant employed him to -perform a surgical operation on his adult son, and told the plaintiff that he would pay the bill, and it was held that the evidence was sufficient to sustain the finding that defendant’s undertaking was an original one.

It is claimed by counsel for the plaintiff that the court gave an instruction which ignored these principles of law. The instruction complained of is No. 9, and reads as follows: “Although you may find that defendant is primarily liable upon the contract sued on, still, if you find and believe, from a preponderance of the evidence, that Whitlow was induced to agree to pay $1,500 for the operation upon Mrs. Freeman in reliance upon the representation of plaintiff that $1,500 was a reasonable charge for such character of ¡surgical services; that defendant believed said representations, and did not himself know whether said charge was reasonable for such services; and you further find that a charge of $1,500 w-as excessive and exorbitant for such services, then defendant would only be liable for a reasonable fee for the services performed, and, if he has paid more than you find is a reasonable compensation for such services, then he is entitled to recover any excess paid, as shown by the proof. And, in determining what is a reasonable fee, you will take into consideration the skill and care and expense required and used in the diagnosis of, preparation for and execution of the operation, but you are not authorized to diminish a reasonable fee because of the fact that Mrs. Freeman died following the operation, unless there was a warranty of the result, as explained in these instructions.”

We think this assignment of error is well taken. It will be noted that the instruction tells the jury that, although1 it may find that the defendant is liable upon the contract sued on, still if he agreed to pay $1,500 for the operation upon his sister, in reliance upon the representations of plaintiff that this was a reasonable charge for the operation, and that, if defendant believed this to be true, and did not know whether the charge was reasonable or not, and the jury should further find that $1,500 was an excessive fee, then the defendant would only be liable for a reasonable fee, and would be entitled to recover any excess paid, as shown by the proof. It was error to narrow the inquiry by instructing the jury that the right of the plaintiff to recover under the contract depended upon whether he represented to the defendant that $1,500 was a reasonable fee, and the defendant, in ignorance of what was a reasonable fee, believed the representations to be true. This tended to concentrate the mind of the jury upon a single question and to place too narrow a limit upon the plaintiff’s right to recover.

As we have already seen, when the contract was made, no confidential relation existed between the parties, and a contract for the amount of fee to be charged by a surgeon is valid and unobjectionable, and will be enforced, unless there are special circumstances ■ from which it appears that it was induced by fraud or some improper or undue advantage over the patient or the person employing the surgeon. There may be cases where, from the nature of the transaction and the situation of the parties, fraud and imposition may be inferred from the representations of the surgeon that his fee was reasonable. Such a ease would be where there was necessity for an immediate operation and no other surgeon was available. Such a case might also be presented where a party was induced to go to the sanitarium of another and was persuaded that an immediate operation was necessary to -save the life of a patient. It may be stated that, in any case of emergency, where the patient or the person making a contract for the patient was laboring under such great excitement or distress of mind that an unconscionable advantage has been taken of him, then the contract will be set aside on the ground of fraud, and recovery for services will only be allowed upon a quantum meruit.

Here none of these elements existed. There was no necessity for an immediate operation. No emergency existed. The defendant was at home, and his sister was in a hospital in the same town. If he made the contract testified to by the plaintiff, he did so of his own volition. He did not ask Dr. Love if the fee was reasonable. There was another physician in the city who had attended his sister, He had time to have consulted him about the reasonableness of the fee. He did neither. If he made the contract as testified to by the plaintiff, his only ground for setting it aside on the ground of fraud is that it was unreasonable. This is not sufficient. It cannot be said that the contract was procured by fraud because the plaintiff charged more than other physicians and surgeons would charge for a similar operation in the same city. There must be some mental distress caused by the attending circumstances which would constitute constructive fraud because the party seeking to enforce the contract had taken an unconscionable advantage of one who had the right, under the circumstances, to rely upon his representations that the fee was a reasonable one.

This principle was recognized in the case of Cotnam v. Wisdom, 83 Ark. 601. In that case a surgeon was called in to attend a person injured in án accident, and, in an effort to save his life, performed an operation on him while lie was unconscious. The patient died without regaining consciousness, and the law implied a contract on his part to pay a reasonable compensation to the surgeon.

The same principle would apply to a helpless man, without friends to aid or advise him, who would be induced to make an unconscionable contract with a physician or surgeon in order to save the life of himself or some one near to him.

It follows that the court erred in giving instruction No. 9 to the jury, at the request of the defendant, and for that error the judgment must be reversed, and the cause remanded for a new trial.


author: Hart, J.

text:
    Tullis v. State.
    Opinion delivered January 21, 1924.
    1. Homicide — defense of insanity — evidence—In a prosecution for murder, evidence held to sustain a conviction. of murder in the second degree, as against plea of insanity.
    2. Witnesses — impeachment.—In a prosecution for murder, in which defendant’s daughter testified that the deceased had threatened to kill defendant, and, on. cross-examination, denied that she bad made a statement that defendant was going' to kill the deceased with a certain pistol, the admission of testimony that she had made such statement was prejudicially erroneous, as the • statement related to a collateral issue.
    3. Homicide — refusal of instruction as to manslaughter. — In a prosecution for murder a requested instruction that, although defendant believed he was in danger of losing his life or receiving great bodily injury at the hands of the deceased, still, if he was negligent in coming to such belief, he should be found guilty of manslaughter, should have been given.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    reversed.

      James 8. Steel and Steve Carrigan, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Uammoeh, Darden Moose and J. S. Abercrombie, Assistants, for appellee.
   Hart, J.

Elmer Tullis was indicted for murder in the first degree, charged to have been committed by killing Jim Norwood by shooting him with a pistol, in the town of Mineral Springs, Howard County, Ark. He was tried before a jury and convicted of murder in the second degree, his punishment being fixed at fifteen years in the State Penitentiary. To reverse the judgment of conviction against him, the defendant has duly prosecuted an appeal to this court.

According’ to the evidence adduced by the State, Jim Norwood came into the store of T. P. Dillard, at Mineral Springs, Howard County, Ark., on the afternoon of Saturday, the seventh day of April, 1923, and took a seat on the counter, about the middle of the store. About four o’clock in the afternoon the defendant, Elmer Tullis, came to the back door of the store, and called Jim Norwood, out behind .the store. In a few minutes after Norwopd went out of the back door, the persons in the store heard a gun fire. Then Jim Norwood'came running through the store, with Elmer Tullis running after him, about two or three feet behind him. Tullis was snapping his pistol at Norwood. Norwood was crying, “Oh, don’t shoot me!” The pistol fired once while they were going through the store, and the shot went into the stairway about the middle of the store. They then ran out oí the store, and another shot was fired. This shot struck an old negro who was in the street. Norwood continued running, and ran through another store, and Tullis kept close behind' 'him, snapping, his pistol at him. Norwood then fell, and died in fifteen or twenty minutes.

The town marshal heard the shots, and ran to the scene of the killing. Tullis told him that he had shot Jim-Norwood. He said that Jim Norwood had got a lidense to marry his daughter, and that he objected to it. He said that he demanded the license from Norwood, and, when he did that, Norwood ran his hand in his bosom, and he shot him.

Other -witnesses for the State testified that Norwood was running, with his hands up, and that Tullis laughed after he had killed. Norwood.

The father of Norwood said that he had had a conversation with Tullis some weeks before the killing, and that Tullis remarked to him that if ever a man tried to marry his daughter he would kill him.

Another witness testified that he had a conversation with Tullis, about three weeks before the killing, and tliat Tullis told him that, before he would let Jim Nor-wood marry his daughter, he would kill-. him, even though he went to the electric chair in fifteen minutes.

In the application for a license to marry Jewell Tullis, Jim Norwood gave his own age as 19 and Jewell Tullis’ age as 15 years.

The defendant was a witness for himself. According to his testimony, he had lived in Howard County nearly all of his life, and was a farmer. He had a wife and six children living. Jewell Tullis was Ms oldest child, and was fourteen years old at the time he shot Jim Norwood. About a month before the defendant shot Norwood he found out that he was courting his daughter. Norwood had been married before, and his wife had been dead something like a year. The defendant was informed that she had died on account of neglect. He objected to Jim Norwood’s courting Ms daughter, and told him that his little girl was too young to keep company with any one. He used all the means in Ms power to keep Norwood from courting his daughter. Within a week before the killing two persons had told him that Norwood had threatened to kill him if he did .not let him marry his daughter. The defendant sent an order to the county clerk, directing him not to issue a marriage license to Jim Norwood and Jewell Tullis. On the day of the killing Norwood passed the house of the defendant, in a wagon, going to Mineral Springs. The defendant got on the wagon and rode a short distance with Norwood. He told Norwood that he had heard that he was fixing to run away with his daughter and marry her the next day. Norwood denied this, and said that they had never thought about marrying. The defendant told Norwood that his little girl was too young to keep company with any one. Norwood replied that, if the defendant objected to her keeping company with him, he would stop, and never write to her again. The defendant then g*ot off the wagon and went home. A neighbor came by later in the day and told him that Nor-wood had already got a license to marry his daughter. The defendant then spoke to his daughter about it, and asked her if she was going to marry Jim Norwood the next day. She said “Papa, Jim Norwood said he was going to kill you if I did not marry him, and I don’t want to marry him. He pulled a gun out of his pocket and says, ‘If you don’t marry me I am going to kill your daddy.” The defendant then hitched .a horse to his buggy and went to Mineral Springs. He saw Jim Norwood’s team back of Dillard’s store, and went into the store and saw Jim Norwood sitting on the counter. He told Nor-wood that he wanted to talk to him, and asked him to go out back of the store. He told Norwood that he heard that he had bought a license to marry his girl. Norwood replied, “I have not got a license, but I will get you.” At the same time Norwood stuck his hand in his bosom like he was going to get his gun, and the defendant said that he did not know what happened from then on. He did not know whether he followed Norwood or not. He remembered nothing more until after the whole transaction was ended, and he found himself up stairs, looking out of a window of a room.

A brother of the defendant and two other witnesses testified that, within a week before the killing, Jim Nor-wood had told them that he was going to have Jewell Tullis or kill Elmer Tullis. Another witness testified lliat, just after the shooting, Tullis snapped his pistol at him because he tried to stop Mm; that the defendant was jerking, and laughed an unnatural laugh, and appeared to be insane.

Several physicians testified as expert witnesses. It was their opinion that Elmer Tullis was suffering from paranoia and was insane at the time of the killing. He had a delusion that Norwood’s first wife had died from neglect, and that Ms daughter would die in the same way if she married Jim Norwood.

The evidence for the State is sufficient to warrant the verdict -of the jury.

The main reliance of counsel for the defendant for a reversal of the judgment is that the trial court erred in admitting the testimony of 'Beatrice Norwood, to contradict the testimony of Jewell Tullis on a collateral issue. It appears that Jewell Tullis was introduced by the defendant, and testified that she told Jim Norwood that she had decided not to marry him, and that he reached in his pocket and pulled out a gun, saying, “If you don’t marry me I will kill Elmer Tullis, your daddy.-” She told her father about this threat on the day of the killing, before it -occurred.

-On cross-examination she was asked if she did not show Beatrice Norwood, a sister of Jim Norwood, a pistol hanging on the wall at her father’s house, and tell her that it was the pistol with which her father was going to kill Jim Norwood. She denied having told -this to Beatrice Norwood.

Beatrice Norwood was called by the State in rebuttal, and, over the objection of the defendant’s attorneys, was allowed to testify that Jewell Tullis had told her that a gun which she saw in the house of Elmer Tullis some time before the killing was the gun - that Elmer Tullis was going to kill Jim Norwood with, and that she believed that she, Jewell .Tullis, would throw it in the well.

We think that this assignment of error is well taken. The general rule is that any evidence is admissible if it tends to prove the issue or constitutes a link in the chain of proof. This rule excludes all evidence of collateral facts. The reason is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them.

It was within the discretion of the court to allow the State to ask Jewell Tullis, on cross-examination, if she had not made the statement attributed to her to Beatrice Norwood, for the purpose of affecting her credibility as a witness. The testimony, however, was not evidence of a substantive character tending to establish the guilt of the defendant. His guilt could not be established by statements or declarations made by his daughter when he was not present. The court properly permitted the question to be asked solely for the purpose of testing the credibility of Jewell Tullis. Jewell Tullis answered that she had not made the statements attributed to her, and this should have ended the matter. The court erred in allowing the State to contradict Jewell Tullis by the testimony of Beatrice Norwood, as stated above. A party cannot examine a witness as to collateral matters and then impeach him by proof of contradictory statements. Hinson v. State, 76 Ark. 366; Ware v. State, 91 Ark. 555; Sellers v. State, 93 Ark. 313, and McAllister v. State, 99 Ark. 604.

The testimony was prejudicial because it may have aroused in the minds of the jury a suspicion or belief that Elmer Tullis had formed the design to kill Jim Nor-wood, and thereby caused the jury to find the defendant guilty of a higher grade of crime than it otherwise would have done. We cannot know how far the minds of the jurors were prejudiced by the admission of this testimony. Under the authorities just cited, the action of the court in admitting the testimony of Beatrice Norwood constitutes reversible error.

The next assignment of error is that the court should have given instruction No. 19 requested by appellant. The instruction reads as follows:

“You are instructed that, although you may'believe that the defendant, at the time he shot deceased, believed he was in danger of losing his life or receiving great bodily injury at the hands of the deceased, still if yon should believe, beyond a reasonable doubt, that the defendant was negligent, as explained in these instructions, in coming to such belief, then it would be your duty to find him guilty of manslaughter. ’ ’

At the outset it may be stated that, even though the court should have given this instruction, or a similar one, at the request of the defendant, the refusal to give it would not constitute reversible error. The reason is that the jury, by its verdict, found the defendant guilty of a higher decree of homicide than manslaughter, and the error could be cured by reducing the punishment to that for manslaughter and sentencing the defendant for that crime. Inasmuch, however, as the judgment of conviction must be reversed for the error in the admission of testimony, as above stated, we call attention to the fact that, in Brooks v. State, 85 Ark. 376, it was held that it was not error to give an instruction, over the objections of the defendant, in precisely similar language. Therefore the court should have given this instruction, or one of similar import. Bruder v. State, 110 Ark. 402.

It is claimed by the State that other instructions given by the court cover this point. Without setting out the instructions, we are of the opinion, after examining them, that they do not fully and fairly submit this issue to the jury. Therefore the court should have given the instruction, or one of similar import to the jury.

For the error in admitting the testimony of Beatrice Norwood, as indicated in the opinion, the judgment will be reversed and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Burkhart Manufacturing Company v. Berry.
    Opinion delivered January 21, 1924.
    1. Frauds, statute of — original undertaking to pay ' another’s debt. — A parol promise to pay the debt of another is not within the statute of frauds where it arises from some new and original consideration of benefit or harm moving between the newly contracting parties.
    2. Bills and notes — written acceptance. — Crawford & Moses’ Dig., § 7898, requiring acceptances to be in writing, has reference to executory acceptances where possession of the bill, together with written acceptance thereon, is retained by the owner, and is not applicable where the drawee retained possession of an order which it had promised to pay in order that the drawer might deliver to it lumber which the drawee had promised to turn over to the payee in payment of his account.
    Appeal from Hot Spring Circuit Court; W. II. Evans, Judge;
    affirmed.

      Mehaffy, Donham é Mehaffy, for appellant.
    'The agreement amounted to nothing more than to pay the debt of another. Such agreements cannot be enforced unless executed in accordance with the statute of frauds. C. & M. Digest, § 4862. Appellant never accepted the order in writing, and is therefore not bound. Id. 7898.
    ■ D. D. Glover and D. M. Halbert, for appellee.
    The promise was an original undertaking. 12 Ark. 174. The promise to pay the debt of another is not within the statute when it arises from some new consideration moving between the newly contracting parties. 45 Ark. 67; 64 Ark. 462; 93 Ark. 346. But the promise must be unconditional. 113 Ark. 544.
   Humphreys, J.

Appellee instituted suit in the circuit court of Hot Spring County against appellant for $143.95. It was alleged in the complaint that F. H. West was indebted to appellee in the sum of $148.95 on open account; that appellant induced him to get a written order on it from West, under promise that it would pay appellee the amount; that he procured the order, which was accepted by appellant, whereupon he balanced the account against West and charged same -to appellant; that he thereafter purchased $5 worth of oats from appellant, leaving a balance due him of $143.95, and interest.

Appellant filed an answer denying all the material allegations in the complaint, and, by way of further defense, pleaded the statute of frauds in bar of the claim.

The cause was submitted to the jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee, from which is this appeal.

Appellee and his clerk, Anna Selph, testified, in substance, that Walter Burkhart, vice president of appellant and general manager of its plant near Donaldson, came into appellee’s store, and, upon inquiry fr.om appellee, informed him that West was in a position to make some money-; that appellee told Burkhart that West owed him a balance on open account of $148.95, which he had promised to pay in lumber, whereupon Burkhart said he would prefer for the matter to be settled through him, and if he would get a written order fr-om West, who was sawing lumber for his company, he would pay it; that, pursuant to the promise, he procured the following order:

“Donaldson, Arkansas, 7/10/1921. Burkhart Manufacturing Company, Donaldson, Arkansas: Please pay to B. T. Berry $148.95, one hundred forty-eight and 95/100, and charge same to me;” that he handed the order to Burkhart, who received and placed1 same in his pocket; that he then credited the account of West with the sum evidenced by the order, and charged the'amount to appellant on his books; that, sixty days thereafter, he asked Burkhart for the money, who refused to pay it, under the claim that his company owed West nothing, either at the time of receiving the order or .thereafter.

P. IT. West testified that he was indebted to appellee in the amount evidenced by the order, which he had agreed to pay in lumber; that when he gave the order he was under contract with appellant to furnish it most. of the output of his two mills, but that he was also sawing lumber for others; that appellant was indebted to him at and after that time.

Walter Burkhart testified that he took the order for the purpose of sending it to the head office of appellant in St. Louis for payment, on condition that his company was, ■ or should become, indebted to West; that it had a contract at the time with West for the entire output of his mills, but that, during the entire time the mills were in operation, West was indebted to the company. He was corroborated in this statement by appellant’s bookkeeper.

Appellant contends for a reversal of the judgment upon two grounds; first, that, if the testimony be viewed in the most favorable light to appellee, the transaction was a collateral undertaking and void because not in writing; and second, because, under § 7898 of Crawford & Moses’ Digest., it was not bound by an oral acceptance of the order.

(1) When given its strongest probative effect, the testimony introduced by appellee tended to establish an original undertaking. It tended to show that, in order to obtain possession of lumber which West had agreed to turn over to appellee in payment of his account, it would páy the amount of said account to appellee upon the written order of West. This court is committed to the doctrine that “a parol promise to pay the debt of another is not within the statute of frauds when it arises from some new and original consideration of benefit or harm moving* between the newly contracting parties.” Kurtz v. Adams, 12 Ark. 174; Chapline v. Atkinson & Co., 45 Ark. 67; Gale v. Hart, 64 Ark. 462. The issue of whether the undertaking was an original or a collateral on tí was submitted to the jury, under instructions under the principle of law announced in the cases cited, and, as the verdict is supported by substantial evidence upon this issue, it must be sustained.

(2) . The facts in this case do not bring it within § 7898 of Crawford & Moses’ Digest, requiring written acceptances to be in writing’ before binding upon the drawee. The undisputed evidence shows that the drawee took'and retained possession of this order, and, according- to the testimony introduced by appellee, it did so in order to get lumber which West, had promised to turn over to appellee in payment of his account. If this was true, the acceptance was executed for a consideration. The statute has reference to executory acceptances where the possession of the bill, together with the written acceptance thereon, is retained by the owner. This issue of fact was submitted to the jury, and, as the verdict is supported by substantial evidence, it must be sustained.

The judgment is therefore affirmed.


author: Wood, J:

text:
    Wm. R. Moore Dry Goods Company v. Mullinix.
    Opinion delivered January 14, 1924.
    1. Bankruptcy — replevin by trustee — evidence.—In replevin against the trustee of a bankrupt to recover goods sold to the bankrupt on the ground that the bankrupt’s purchase was upon fraudulent representations and with intent to defraud, evidence held to sustain verdict for the trustee.
    2. Bankruptcy — suit against bankrupt — duty of trustee. — A trustee in bankruptcy may exercise his own judgment with reference to defending a suit pending against the bankrupt at the time of the bankruptcy proceedings, and it is not necessarily his duty in such matters to follow the wishes of a majority in number and amount of his creditors.
    3. Bankruptcy — pending replevin suit — effect op discharge.— Where a replevin action was pending against a merchant who became bankrupt, and he had given retention bond before his bankruptcy, held that the court in the replevin action properly overruled plaintiff’s motion for judgment against the bankrupt and his sureties on the retention hond in the action of replevin; it appearing that the defendant had received his discharge.

      4. Bankruptcy. — effect on pending action. — After the intervention of the trustee in bankruptcy in a pending action, it was not incumbent on the bankrupt to answer the complaint, and no judgment by default could be taken against him for failure to answer.

      5. Appeal and error — instruction—specific objection. — Objection to the form of language used in an instruction should be specific.
    Appeal from Clay Circuit Court, Western District; W. W. Bandy, Judge;
    affirmed.

      F. G. Taylor and Oliver & Oliver, for appellant.
    The trustee was not a proper party to the suit, and, although judgment was in his favor, this does not affect the suit as to the bankrupt, who failed to plead in the ■case. The trustee is vested only with the title the bankrupt had. Bankruptcy Acts, 1898, § 72-a. He can only sell such title as he has, which he does not warrant. Johnson v. Baum, 158 Ark. 441. The rule of caveat emptor applies to purchasers at sales by trustees’ in bankruptcy. 32 Ark. 97; 32 Ark. 32; 73 Ark. 37.

      G. T. Blood-worth, for appellee.
    A trustee in bankruptcy can make any defense which the bankrupt could have made. Collier on Bankruptcy, 11th ed., pgs. 302-303. Specific objection should have been made by appellant to the instructions about which he complains, and, not having done so, he cannot do so now.
   Wood, J:

The William E. Moore Dry Goods Company (hereafter called company) is a corporation of Tennessee engaged in the wholesale dry goods business. It sold to one W. E. Wyse of Peach Orchard, Arkansas, a large amount of merchandise during the fall of 1919. In May previous Wyse made a statement of his financial condition to E. G. Dun & Co., purporting to reflect the condition of his finances as of January 1, 1919. This statement showed that Wyse had total available assets at that time of $14,715, and he enumerated the various items that constituted the total amount of Ids assets as stated. Among the items was the following: “Cash on hand and in bank, $4,000.” The total liabilities were given as $2,250. The statement was made on one of the forms furnished by E. G. Dun & Co., and per its request for a report. The statement contained answers to the questions requested by E. G. Dun & Co., purporting to give all Ms personal property and Ms real estate and the animal amount of Ms business done, and the names of a few houses from whom he made the largest purchases, and purporting to be a complete statement of his financial condition at that time.

The company instituted this action against Wyse on April 21, 1920, and alleged that it had sold dry goods to Wyse, part of which had been sold by him, and that he had the balance of the goods so sold him on hand, of the value of $800, of which the company alleged it was entitled to the immediate possession; that the possession of these goods had been wrongfully obtained by Wyse, and1 they were wrongfully detained by him from the company. The complaint contained the necessary allegations in the ordinary suit for replevin. A writ of replevin was issued, describing the goods mentioned in' the invoices, which were attached as exhibits to the complaint. The sheriff served the writ on the 22d of April, 1920, and Wyse executed a bond for the retention of the property. Wyse filed a general demurrer to the complaint on November 2, 1922. The record does not show that this demurrer was ever acted upon, and it does not appear that Wyse afterwards filed an answer in the cause. On November 2, 1922, F. C. Mullinix, trustee in bankruptcy, filed a pleading designated as a motion and answer, in which he set up that in May, 1920, Wyse had been duly adjudged bankrupt, and that Mullinix had been duly appointed, and had qualified and acted, as trustee in bankruptcy of Wyse’s estate; that the title to the property in controversy vested in Mullinix as the trustee, and that he was the real party in interest. He admitted that the company had sold Wyse the goods described in the invoices attached to the complaint, and alleged that these goods were sold on open account to Wyse, and that the title passed and vested in him under the sale, and that the company had no right, title or interest whatever in the same. He denied all the other material allegations of the complaint.

It was agreed by tlie parties that Wyse was adjudged a bankrupt in the United States Court for the Jonesboro Division, Eastern District of Arkansas, on April 27, 1920; that he was discharged in bankruptcy by such court in July, 1920; that Mullinix was the trustee, and, as such, he and his successors took possession of the goods in controversy and other property of the bankrupt, and made a sale of' the same, and had duly accounted to the bankrupt court for the proceeds thereof, and that” Wyse was the purchaser at the bankrupt sale. It was admitted that the price of the goods in controversy was $425.

Y. Gr. Lane testified that he was the credit man of the company in the fall of 1919, when the company received orders from Wyse for merchandise. It had received the financial statement of Wyse made to E. Gr. Dun & Co., January 1,1919, and based the credit extended to AVyse on that statement., which was in substance as above referred to. If the statement was false, then the company was defrauded. Witness was unable to state any account that Wyse owed in January, 1919, that he had not paid. Witness did not know whether the list of debts as given in the statement was correct or not. The financial statement was not correct, because the cashier testified that Wyse only had $1,000 in cash when IVvse, in the statement, showed that he had $4,000 in cash. The witness stated that he was acquainted with the condition of the country generally in northeastern Arkansas in 1919, and that those conditions were the best lie had ever known, and that general prosperity prevailed until July, 1920.

Wyse was called as a witness for the company, and testified to the effect that he filed the petition in bankruptcy in the year 1920. He had made a report to the United States Government of his income for the year 1919, and had paid that year about $80 as income tax. He had his attorney to write his creditors in the spring of 1920 in an effort to settle with them on a percentage basis. He didn’t write the letters himself, but saw them, and when his creditors talked with him about it he did not tell them that any of the statements in the letters were untrue. The letters contained, among others, the following’ statement: “Mr. Wyse of Peach Orchard, Arkansas, finds himself in the unfortunate position of having sold his goods on a credit to unreliable persons, trusting to their honesty for his pay, until he has nothing but trust left.” That statement was not wholly true. Witness had several accounts he considered good, but, under the conditions, he could not get the money. The letter continues: “He has several thousand dollars in accounts which are not worth ten. cents on the dollar.” That also was not true. Witness would not have listed them that way. The letter further says: “His liabilities to various creditors totals up close to $15,000.” Witness stated that he did not owe quite that much. Witness made the financial statement to Dun & Company mentioned above on May 12, 1919, showing his financial condition as of January 1, 1919. Witness further stated that he did not have his money buried out anywhere. He never kept large sums of money anywhere except at the bank. During 1918, 1919 and 1920 he did not do business with any other bank than the People’s Bank of Peach Orchard. In the spring of 1920 witness found himself with a heavy stock of goods on hand, a great deal of which was winter goods, and’ heavy bills coming due, which he could not meet. Pie wrote his creditors and offered for them to come and take over his stock and dispose of it and pay his debts. Witness, collected and paid on his accounts just as long as he had anything to pay with. The salesman of the company sold witness the goods in controversy at witness’ store. He insisted that witness take as much stock as witness would. A lot of the merchandise ■ lost forty or fifty per cent, of the price that obtained in the spring of 1920. Witness did not want to go into bankruptcy, and offered his creditors everything he had, and invited them to examine his stock, his accounts and Ms books. If there was any false statement in the report he made to R. Gr. Dun & Co., he was not aware of it. Evidently he had the amount of money on hand or in the bank at the time he made the report, for he knows that he never made a false statement. When witness made the statement, he knew that people were going to rely on it. Witness supposed that he went to the bank to see how much cash he had, or else he checked up with his deposit book.

B. F. Lewis testified that lie was cashier of the People’s Bank of Peach Orchard, and was in active charge of the bank. He exhibited the ledger sheets showing the bank account of ,Wyse January 1, 1919. On December 31, 1918, Wyse’s account showed a balance of $1,064.38. On January 2, 1919, it showed a balance of $1,317.17. The largest amount Wyse had to his credit at any time during December, 1918, was $1,697.17, and the largest amount he had to his credit during the year 1919 was on January 30, when it amounted to $1,516.49. It was $1,106.12 in May of that year, and from January to May of that year it never did amount to as much as $4,000. It ran all the way from an overdraft to $1,610 on December 11, 1920. Witness was acquainted in a general way with Wyse’s stock. Witness would have estimated that his available assets in May, 1919, at the time he made Ms report to R. Gr. Dun & Co., would have been more than he reported. Witness considered that his assets about the first of that year would have amounted to something in the neighborhood of $15,000.

Bloodworth, the attorney for Wyse, testified that, in writing to Wyse’s creditors, he made a statement of Wyse’s financial embarrassment as his own estimate from an examination of his stock. It looked as though Wyse liad articles on hand that had been on hand for years, together with á whole lot of good fresh stock. While Wyse authorized witness to write the letter, the soecific statements made in it witness doesn’t suopose that Wyse saw until some time afterward, and witness made them on information that Wyse furnished witness about what his liabilities were.

There was introduced in evidence a restraining order by the referee in bankruptcy, addressed to Gr. B. Oliver and Oliver & Oliver, which recited: “You are hereby restrained from taking a judgment in the circuit court of the Western District of Clay County, Arkansas, in behalf of Wm. R. Moore Dry Goods Company v. W. R. Wyse, bankrupt, which suit in replevin you instituted within four months prior to the filing of the petition in involuntary bankruptcy by above W. R. Wyse.” This order was dated November 3, 1920.

There is also in the record a petition by Oliver & Oliver, attorneys for the company, in which they set up that the action was instituted on the 21st day of April, 1920; that a writ of replevin was issued and served by taking certain property from Wyse; that a retaining bond was executed by Wyse, and he retained possession of the property, and that the cause was still pending; that the clerk had dropped the cause from the docket, over the protest of the plkintiff, and praying that the cause be reinstated on the docket. This petition was filed on the 4th of April, 1922,

The court, over the general objection of the company, gave, on its own motion, among others, instructions Nos. 1 and 5. Instruction No. 1 defined the issues between the trustee in bankruptcy and the company, and, in effect, told the jury that the interpleader contended that, after this suit was commenced, Wyse went into bankruptcy and his property was turned over to Mullinix, as trustee in bankruptcy, and all title that Wyse might have had in the property turned over to the trustee passed to the trustee; that the trustee came into the suit as an interpleader, contending that Wyse was the actual owner of the property at the time the writ of replevin was sued out, and that, because of the fact that he went into bankruptcy, Mullinix was appointed trustee, and the title vested in him, and for that reason the title to the goods at the present time was in the trustee, because the same were turned over to him as such; that these were the issues for the jury to decide.

In instruction No. 5 the court told the jury that they were called upon to pass upon the question of whether or not there was a fraudulent representation, and that, in reaching a conclusion on this proposition, they should take into consideration all the facts and circumstances in ’proof, after giving- the testimony of the witnesses and the circumstances such weight as they thought same were entitled to; that the burden of proof was on the interpleader, and that the court supposed he had the opening. The court also instructed the jury that; if they found that the title to the goods in controversy was in the company, they would return a verdict in its favor; and also to the effect that, if Wyse made false and fraudulent statements of his assets and liabilities, and that the company had access to this statement and relied on it in making its sale to Wyse, then title to the property remained in the company and never vested in Wyse at all. But, on the other hand, if the 'statement was not fraudulent, but substantially correct, then the verdict should be in favor of the interpleader, Mullinix-.

The jury returned a verdict in favor of the inter-pleader, Mullinix. The company thereupon moved for judgment against Wyse and the sureties on his bond. The court overruled its motion, to which the company excepted. The court then rendered judgment against the company for costs and dismissing its action, from which judgment is this appeal.

1. The appellant’s first contention is that, conceding that the appellee, Mullinix, the trustee in bankruptcy, was a proper party to the suit, the verdict nevertheless was contrary to the evidence. The evidence is fully set forth above. It could serve no useful purpose to argue the issue. Our conclusion is that the-issue as to whether or not appellee Wyse purchased the goods from the appellant upon fraudulent representations and with intent to defraud the appellant was purely one of fact. The evidence was sufficient to sustain the verdict.

2. The issue as to whether or not appellee Wyse perpetrated a fraud upon the appellant in the purchase of the goods was submitted to the jury in instructions as favorable to the appellant as it was entitled to ask. In re Morendo County Mercantile Co., D. C. Ala. 29 Amer. B. R. 46, 199 Fed. 447. The verdict of the jury, as we have seen, on th'at issue had1 substantial evidence to sustain it, and is theref ore conclusive here. It having been determined by the jury, on this issue of fraud, that the purchase of the goods in controversy from the appellant was not fraudulent, and that the title to same was in Wyse at the time his assets 'were taken over by the trustee in bankruptcy, it follows that the appellee, Mullinix, as trustee in bankruptcy, also had title to the property. In other words, the trustee in bankruptcy was vested with such title in the property as the bankrupt had. National Bankruptcy Act, 1898, § 70. The court therefore correctly instructed the jury that, if they found there was no fraud in the purchase, and that the title to the property passed to Wyse, the bankrupt, they would return a verdict in favor of the appellee, Mullinix. The law is well settled that the trustee could exercise his own judgment with reference to defending a suit against the bankrupt at the time of the bankruptcy proceeding, and it is not necessarily his duty in such matters to follow the wishes of a majority in number and amount of the creditors. I Collier on Bankruptcy, p. 420, note 115. It may be said in this connection that the record does not show that the appellant objected to the trustee becoming a party to the action. Having become such party, it was his province and duty to “plead to the jurisdiction or make any defense which the bankrupt could have made, or even any defense which any creditor could have asserted affirmatively. Once the trusteeds a partv to such suit, he is bound bv the judgment therein.” I Collier on Bankruptcy, 13th ed., p. 421, note 121, 122, 123.

The crux of this lawsuit was the issue of fraud, which issue, as we have seen, was submitted under correct instructions and determined by the jury against the appellant, upon legally sufficient evidence.

3. On the issues raised by the intervention of the trustee and the answer to appellant’s complaint, the court correctly directed the jury that, if they found that there was no fraud on the part of Wyse in the purchase of the goods in controversy, the verdict should be in favor of Mullinix, the trustee. The agreed statement of facts showed that Wyse had been adjudged a bankrupt and had received his discharge. Therefore the court properly overruled appellant’s motion for a judgment in favor of appellant against Wyse and his sureties on the retention bond in the action of replevin. After the intervention of the trustee in bankruptcy it was not incumbent upon the appellee Wyse to answer appellant’s complaint, and no judgment by default óould be taken against him for failing to answer.

4. ¡We find no prejudicial error to appellant in the ruling of the court in giving instruction No. 5. The concluding paragraph of this instruction is as follows: ‘ ‘ The burden, of proof is on the interpleader, and he has the opening, I suppose.” Instruction No. 5 embraced two paragraphs, and certainly no 'objection could be raised to the first. That part of the language of the second paragraph which places the burden of proof upon the interpleader certainly was not prejudicial to the appellant, and if learned counsel conceived that appellant was prejudiced by the language, which told the jury that “the interpleader lias the opening, I suppose,” they should have drawn the attention of' the trial court to this language by a specific objection. A general objection was not sufficient for that purpose. ,

The judgment is in all things correct, and it is therefore affirmed.


author: Smith, J.

text:
    Minor v. State.
    Opinion delivered January 21, 1924.
    1. Indictment and information — failure to number indictment.— Failure to number an indictment did not render it void.
    2. .Criminal law — failure to indorse names of witnesses on indictment. — Failure to indorse the names of witnesses on an indictment did not invalidate it or afford grounds for quashing it.
    3. Criminal law — change of venue — recognizance of accused.— Crawford & Moses’ Dig., § 3091, requiring the accused, on a change of venue being granted, to enter into a recognizance for his appearance, is directory, so that the case will not be reversed because the transcript fails to show that accused had executed recognizance to appear in the circuit court of the county to which the venue was changed.
    4. Criminal law — judicial knowledge. — The court judicially knows that Van -Burén is in Crawford County. ■
    5. Criminal law — sufficiency of evidence. — Evidence held to support a finding that the illegal sales of intoxicating liquor were made in a town in the county of the venue.
    6. Criminal law — testimony before grand jury. — Proof of what a witness testified before the grand jury is inadmissible as substantive testimony, but is admissible to contradict testimony given by the witness at the trial.
    7. Criminal law — harmless error. — The admission of incompetent testimony was harmless where accused admitted 'the truth of the fact as testified.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    affirmed.

      W, B. Rhyne, W. II. Neal and C. M. Wofford, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
   Smith, J.

Appellant was indicted in the Crawford Circuit Court for selling intoxicating liquors, and, upon his petition, tire venue was clianged to tire Ozark District of Franklin County. When the case was there called for trial, appellant moved to quash the transcript, as being incomplete and insufficient in tlie following particulars. The indictment, as copied in the transcript, was not numbered. nor were the names of the witnesses indorsed on the back thereof; and there was nothing in the transcript to show that appellant, or any of the witnesses, had been recognized to appear in the Ozark District of the Franklin Circuit Court.

The trial court overruled the motion to quash, and properly so. The original of the indictment may not have been numbered, but this would not have rendered it void. The failure to indorse the names of the witnesses on the indictment did not invalidate it. Appellant had the right to demand that the names of the witnesses be furnished him, and these names should have been indorsed on the original indictment, and should, of course, have been copied into the transcript as a part of the indictment. But this failure afforded no ground to quash the proceedings. Cole v. State, 156 Ark. 9; Snow v. State, 140 Ark. 7; Thomas v. State, 161 Ark. 644.

The statute (§ 3091, C. & M. Digest) provides that, when the order changing the venue is made, the defendant, if not in custody, shall, if the offense be bailable, enter into recognizance, with sufficient security, for his appearance in the court to which the cause is to be removed, on the first day of the next term thereof, and not depart sucli court without leave. This section has been held to be directory merely. Beasley v. State, 53 Ark. 67; Havis v. State, 62 Ark. 500. The statutory provision in regard to the recognizance of the witnesses is also directory.

It is insisted that the venue was not proved. The testimony was to the effect that appellant lived in Van Burén, and ran a restaurant and a cold drink stand in that city, and the sheriff and the chief of police testified that they raided appellant’s restaurant, where, it is admitted, the drinks alleged to have been intoxicating were sold. We think this testimony supports the finding that the sales were made in Van Burén; and we judicially know that Van Burén is in Crawford County. Hemmingway v. State, 161 Ark. 139; Bonner v. Jackson, 158 Ark. 526; Wells v. State, 151 Ark. 221; Guerin v. State, 150 Ark. 295.

It is insisted that the testimony is not sufficient to support the verdict. It may be summarized as follows: F. O. Cole testified that he went into appellant’s restaurant and ordered a drink. He did not specify what he wanted, nor did he-ask its price. A hot drink, with' a fiery taste, was served in a small glass, for which he paid fifty cents. He did not know that what he bought was whiskey, and did not buy it for whiskey. The evasive answers of the witness made it quite obvious that he was endeavoring to give as little information on the subject as possible, and he was ordered by the court to answer the questions asked. He was then asked if he had not testified before the grand jury that he had bought a drink of whiskey from appellant, and he answered that “it could have been that way.”

He was asked: “Did you not state to the grand jury, and was it not written down and signed by you, that you and E. A. Hawkins were in there, and each bought a drink of whiskey?” The witness answered: “I meant to say each of us bought a drink.” He was asked: “You said that is your statement?” and answered: “Yes sir.” Witness was then shown the statement, and asked if it was his, and he answered that it was, and he was-then asked if he had told the truth, and he answered that he had.

Upon his cross-examination he was asked: “Eegardless of Vliat you swore there (before the grand jury), can you tell this jury that it was not liquor?” and he answered, “It could have been, but I don’t think it was.”

He admitted that the statement which he had made to the grand jury was reduced to writing and was read to and signed by him.

A physician testified that he bought a drink from appellant, which tasted like “jake,” and that “jake” is intoxicating. This witness was asked if he had not testified before the grand jury that he bought, in 1922, from appellant, a drink of whiskey. He admitted that he had so testified, and that the statement was true.

A witness, who had been chief of police, testified that he and the sheriff of the county raided appellant’s restaurant, and that they saw appellant pouring some com liquor in a sink in the rear of the restaurant.

The sheriff of the county testified about the raid, and stated that he saw appellant pouring some corn whiskey in the sink.

Appellant denied that he had sold any intoxicating liquors, and testified that the drink which he sold was called Irish malt, a quantity of which he kept on hand at all times for sale; and a chemist testified that he had made an analysis of a bottle of this malt, and that it contained no alcohol. He did not know whether the drink he analyzed was the same kind of liquor which appellant had sold Cole and the physician.

Dow McGehee was called by the State as a witness, and he" testified that he was the clerk of the grand jury which returned the indictment against appellant, and he identified the minutes of the grand jury about which Cole had been asked, and he stated that lie reduced the testimony of the different witnesses to writing, and that the statements were read to and signed by the witnesses, and that the statement of Cole had been read to and signed by Cole.

If the testimony of MeGeliee was inadmissible,we do not think that any prejudice resulted from its admission.

In Davidson v. State, 108 Ark. 191, a witness for the defendant was asked if he had not given certain testimony before the grand jury which was in conflict with the testimony he had just given at the trial, and he answered that he had, but that he was mistaken when he testified before the grand jury. Defendant’s counsel asked the court to let this statement go to the jury for the purpose only of 'contradicting the witness, and not as substantive testimony of the facts related in .the contradictory statement. The court overruled this request, and told the jury they, might consider the testimony for all purposes. We held this ruling was erroneous, as the testimony was not admissible for any purpose except to contradict the .witness; hut we also held that, while there was error, there was no prejudice, for the reason that the evidence at the trial was undisputed on that question.

It is not proper to admit, as substantive testimony at the trial, evidence heard before the grand jury. In other words, one cannot be convicted on evidence heard only by the grand jury, such evidence being admissible for the purpose only of contradicting the conflicting testimony given by the witness at the trial. McElroy v. State, 100 Ark. 344; McElroy v. Stale, 106 Ark. 131; Davidson v. State, 108 Ark. 191; Carlton v. State, 109 Ark. 516; Derrick v. State, 92 Ark. 237.

Here the testimony of McG-ehee'was not prejudicial, because the ■witness Cole admitted1 the truth of all the facts about which McGehee testified.

The testimony is sufficient to support the verdict, and, as no error appears, the judgment must be affirmed.