author: McCulloch, C. J.

text:
    Central Kansas Milling Company v. Patterson.
    Opinion delivered December 10, 1923.
    1. Sales — breach of contract — pleading.—Where a contract for the sale of flour stipulated that it should be delivered at a certain price f. o. b. at a town in Kansas, with the freight to its destination in this State to be deducted, a complaint which laid the damages in a lump -sum and stated 'the market price at the Kansas, town and the freight charges to the destination was not demurrable.
    2. Pleading — items of damage. — In pleading a breach of a contract of -sale it is unnecessary for the complaint to allege the items of damage, a-s the law fixes the elements and measure of damages.
    3. Pleading — performance of contract. — In an action -by the -seller for breach of a contract of sale, an allegation in general terms that plaintiff performed all the conditions imposed on it by the terms of the contract, is sufficient, under Crawford & Moses’ Dig., § 1227.
    4. Pleading — exhibits.—In an action at law not founded on an instrument for the payment -of money, exhibits to the complaint do not control the allegations of the complaint.
    Appeal from Benton Circuit -Court; W. A. Dickson, Judge;
    reversed.
    Appellant per se.

    Under the statute, C. & M. Digest, § 1227, it was sufficient to allege performance conditions of the -contract in general terms. It was not necessary to state the facts showing the performance. 92 Ark. Ill; 130 Ark. 496; Am. & Eng. Ann. Cases, 1913-E 75. It was n-ot necessary to allege which option in the contract attached to the complaint the plaintiff elected to rely upon. The matters pertaining to the options are not grounds for demurrer, hut should he pleaded by answer. Am. & Eng. Ann. Cases, 607, note 611; 131 Ark. 525. For tests as to sufficiency of a pleading on demurrer, see 110 Ark. 130; 96 Ark. 163; 125 Ark. 464; 122 Ark. 141; 138 Ark. 38; 93 Ark. 371; 102 Ark. 287.

      Duty & Duty, for appellees.
    Having elected to sue for the difference between tbe contract price and the market value of tbe flour, tbe complaint was defective in failing to allege the market value at Rogers, Arkansas, tbe place of delivery. 55 Ark. 376; 56 Ark. 401; 70 Ark. 79; 92 Ark. Ill; 79 Ark. 603; 131 Fed. 43.
   McCulloch, C. J.

Appellant instituted this action against appellees in tbe circuit court of Benton County to recover damages alleged to have been sustained by reason of the breach of two separate contracts for the sale of flour.

Appellant is a foreign corporation, engaged at Lyons, Kansas, in the business of manufacturing and selling flour, and appellees were copartners under the firm name of Rogers Milling- Company, engaged in business at Rogers, Arkansas.

It is alleged in tbe complaint that tbe parties entered into two separate contracts for tbe sale by appellant to appellee of flour, tbe first contract being for 500 barrels, and tbe second for 1,000 barrels, to be delivered at a certain price f. o. b. Lyons, Kansas, with the freight to Rogers to be deducted.

It is further alleged in tbe complaint that, after certain quantities of tbe flour were delivered, appellees broke tbe contract b}?- refusing to accept further deliveries.. Damages are laid in tbe sum of $4,892, and the complaint also contains a statement of the market price of tbe flour at Lyons, Kansas, less freight charges to Rogers, on tbe respective dates of the alleged breaches of tbe contracts.

The court sustained a demurrer to tbe amended complaint, and appellant declined to plead further. Final judgment was rendered dismissing tbe complaint.

The first ground on which counsel for appellees defend the ruling of the court in sustaining the demurrer is that the complaint contains' no statement as to the market value of the flour at Rogers on the respective dates of the alleged breaches of the contracts, so as to show the difference between the contract price and the market price at the place of delivery. The .contracts provided that the prices were fixed upon delivery on board cars at Lyons, Kansas, with deduction for freight to Rogers, but the shipment was to be to the shipper’s own order, with draft attached to the bill of lading, and it may be an issue of fact in the trial, according to the evidence adduced, whether a delivery was intended to be consummated at Lyons, Kansas, or at Rogers, Arkansas. Richardson v. Fowler Commission Co., 154 Ark. 92. Therefore the difference between the contract price and the market price at Lyons, less freight to Rogers, on the day of the breach, is a sufficient allegation of damages. It is not essential that the different items of damages be set forth in the complaint with particularity. Kirchman v. Tuffli Bros. P. I. & C. Co., 92 Ark. 111.

It is next contended that the contract exhibited with the complaint shows that, on the failure of appellees to accept the flour, there were different options open to the seller, and that the failure to allege in the complaint the exercise of one of those options is fatal to the statement of a complete cause of. action. This contention is unsound, for the complaint does contain a statement, in general terms, that appellant performed all the conditions imposed on it by the terms of the contract. Our statute provides (Crawford & Moses’ Dig’est, §.1227) that it shall not be necessary to state the facts concerning the performance of a condition, but that such performance may be stated in general terms to the effect that “the party duly performed all the conditions on his part.” This is an action at law, and, not being founded on an instrument for the payment of money, the exhibit does not constitute the foundation of the action so as to control the allegations of the complaint in an action at law. Crawford & Moses’ Digest, §1222; Chamblee v. Stokes, 33 Ark. 543; Abbott v. Rowan, 33 Ark. 593.

It is seen therefore, from the foregoing statement of the law, that the matters sought to he raised by demurrer should be presented as issues in the trial of the cause. The demurrer should not have been sustained on the ground mentioned.

The judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Kansas City Structural Steel Company v. State use Ashley County.
    Opinion delivered December 10, 1923.
    Corporations — foreign corporation doing business in state. — A foreig'n corporation contracted to build a bridge in this State, and sublet the work to a partnership; it shipped the struetual steel consigned, to itself, in the State, and furnished the subcontractors with holts and other material. Held that these transactions constituted “doing business” in the State within Crawford & Moses’ Dig., §§ 1825-1832, regulating foreign corporations doing business in the State. o
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.

      Coleman, Robinson & House, for appellant.
    Bidding upon contracts for public work does not constitute doing business within a State, within the meaning of the laws regulating foreign corporations. 14a C. J. 1279, § 3986. The only acts done by appellant, prior to securing its permit, were interstate transactions, which the State law could not affect. 66 L. ed. 114; 151 Ark. 269.

      Wilson & McGough, for appellee.
    The shipment by the appellee of materials to its own order, and delivered in this State to the -subcontractor, constituted an intrastate action. 13-6 Ark.’ 52. One test laid down differentiating intrastate and interstate transactions is ownership of property after it arrives within'the State. 115 Ark. 166; 124 Ark. 539'; 128 Ark. 211; 87 S. E. 598. The general rule that a foreign -corporation is transacting business in the State, within the meaning of the statute governing such, by transacting therein some substantial part of its ordinary business, is not altered by the fact that such transactions constitute interstate or foreign commerce. See' 217 U. S. 91;27L. R. A. (N. S.) 493.
   Wood, J.

This is an action by the appellee against the appellant. The appellee alleged that the appellant was a foreign -corporation engaged' in the business of building bridges, and that, prior to the third day of August, 1917, it made a bid for the contract to do the bridge work on the Wilmot Road District in Ashley County, Arkansas; that its bid was accepted, and it entered into a contract with the road district for the building of bridges without first obtaining authority from the State of Arkansas to engage in such business in this State and' without complying with the laws of the State applicable to sjich corporations.

The appellant, in its answer, specifically denied the allegations of the complaint, and alleged that, if it engaged in business in the State of Arkansas without complying with the laws in regard to foreign corporations, such business transacted by it was interstate commerce and not subject to the regulation of the State laws; that, if the laws of the State 1825-1832, inclusive, Crawford & Moses’ Digest) forbidding foreign corporations to do business in the State without complying with the laws therein prescribed, be held to apply to the business of appellant, such laws were repugnant to the commerce clause of the Constitution of the United States, and therefore void.

The facts as set forth in an agreed statement of facts are as follows: “Kansas City Structural Steel Company is a corporation organized under the laws of the State of Missouri. On May 3, 1921, it executed a contrast with the Wilmot Road District for the construction of a steel bridge across Bayou Bartholomew, near the town of Wilmot, county of Ashley, State,of Arkansas. The contract was signed at Hamburg, Ashley County, Arkansas, by representatives of the contracting parties, and contained a provision that it should hot become effective until a bond to secure its faithful performance had been executed by the steel company. This bond was executed in Kansas City on May 5, 1921. On June 14, 1921, the defendant steel company sublet to the Yancey Construction Company of Abilene, Kansas, a partnership, the construction work upon the bridge, except the erection of the steel superstructure. On or about June 15, 1921, the Yancey Construction Company began work upon the bridge, and by August 17, 1921, had completed the greater portion of the work on the piers. On August 17, 1921, the Kansas City Structural Steel Company secured a permit, as required by law, authorizing it to do.business in the State of Arkansas, and on that da^ complied with the laws of the State with reference to'foreign corporations engaging in business within the State.

The Kansas City Structural Steel Company has not received any payments of money from the Wilmot Road District by reason of its contract for the construction of the bridge. The actual construction work done by the Yancey Construction Company was done by said company as independent contractors. The Kansas City Structural Steel Company fabricated the steel for its superstructure at its plant in Kansas City. Prior to August 17, 1921, three shipments of steel were made to Arkansas for use in the bridge, said shipments consisting of bolts, reenforcing rods, steel piers, tubes and angles, and this material was used in construction work done by tbe Yancey Construction Company under its contract with the Kansas City Structural Steel Company.”

In addition to the above it was shown that on July 21, 1921, the appellant shipped three cans of bridge paint, weighing 200 pounds, and also on July 2, 1921, had shipped two carloads of structural steel, and still another carload at another time, all material shipped prior to August 17, 1921. This paint and the carloads of structural steel were consigned to the appellant at Wilmot, Arkansas, from Kansas City, Missouri.

Upon the above facts the trial court rendered a judgment in favor of the appellee against the appellant in the sum of $1,000, from which is this appeal.

The facts are undisputed, and they constitute the doing of business by appellant in this State contrary to the laws applicable to foreign corporations, as contained in §§ 1825-1832 inclusive, Crawford & Moses’ Digest. It appears that appellant came into this State and bid on the contract for the construction of bridges in Wilmot Koad District; that its bid was accepted and the contract entered into in this State for the construction of these bridges; that, prior to the day when it obtained its license to do. business in this State, it had sublet a portion of the work which it had contracted to do, to a construction company, a partnership, in Abilene, Kansas; that, before it was authorized to do business in this State, appellant also shipped the structural steel necessary for the bridge work, consigned to itself at Wilmot, Arkansas; that, of this material, the appellant furnished the. Kansas company such bolts, reenforcing rods, steel piers, tubes and angles as were necessary to enable it to perform its part of the work, all of which it did and completed before the appellant secured/ its permit to do business in this State.

These acts separately (and certainly taken as a whole), looking towards the fulfillment of its contract to construct the bridges which was entered into, and to be performed, in this State, constituted the doing of business in this State, and the court was correct in so holding. The appellant .contends that these acts were wholly interstate in character, and relies upon the cases of Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 269, and L. D. Powell Co. v. Rountree, 159 Ark. 121. Neither of these cases sustains appellant’s contention. In Rose City Bottling Works v. Godchaux Sugars, Inc., supra, a foreign corporation sold goods to a resident of this State and consigned the goods to its order at the buyer’s place of business, and the foreign corporation, through its local agent, negotiated and arranged with a third party whereby its agent should hold the goods until paid for. In that case we said: “If therefore the goods came into the State under shipper’s order consignment, retaining its character as interstate, it follows that there was no change in the character of the transaction in the further arrangement between the parties stipulating the method of payment of the price. The transaction, from inception to the end, was continuous and interstate in its character, for the contract now under consideration related to the method of the payment of the price, and did not constitute a new contract for the sale of the goods.”

In the case of L. D. Powell Co. v. Rountree, supra, a foreign corporation, through its traveling agent, took an order from a party in this State for certain books, and the foreign corporation shipped the books to the purchaser, under a contract by which the title was reserved in the seller until the purchase money was paid. The original purchaser, having failed to pay for the books, turned them over to an attorney in payment of a fee. Later a representative of the foreign corporation claimed the books, and the attorney having them in possession recognized the claim and offered to deliver the books to the agent of the foreign corporation. The latter resold these books to the attorney, under a contract similar in form to the contract under which they. were first purchased. We held that the first transaction was an interstate transaction, and that the latter was but a continuation of the original interstate transaction, and that the whole did not constitute the doing of business in this State by a foreign corporation, contrary to our laws. Among other things we said: “The books were not shipped into the State as sole and independent property of appellant for the purpose of selling them to the appellee or any other person. On the contrary, they were shipped into the State by appellant to McNeill on an order for future delivery, obtained by appellant’s traveling agent. The McNeill contract clearly covered an interstate transaction. The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction.”

The facts in the case at bar readily differentiate it from the doctrine of those eases. Here the bid for the contrast to build bridges in the State and the entering into the contract to build those bridges were strictly intrastate acts. Likewise, the furnishing of the material to the Yancey Construction Company after the same was shipped to Wilmot, Arkansas, to the order of the appellant, was strictly an intrastate and not an interstate transaction. These transactions were intrastate and not interstate transactions, and constituted the doing of business in this State. In Hogan v. Intertype Corporation, 136 Ark. 52, there was a sale of machinery by a foreign corporation to a resident of this State, and the machinery was shipped to the purchaser from another State to the shipper’s order, and was delivered by the seller to the buyer within this State. We held that this constituted an intrastate transaction. Among .other things we said: “One test laid down by the Arkansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives in the State. An interstate transaction contemplates a consignor without and a consignee within a State, or vice versa.” The facts of the case in hand are much stronger to show an intrastate transaction than were the facts in the case of Hogan v. Intertype Corporation, supra. But this is not the case, on the facts, of a resident of this State ordering goods of a foreign corporation, and the shipment of those goods by the foreign corporation to its own order in this State for delivery to the purchaser. Not at all. Here the facts warranted the trial court in finding, and evidently it did find, that appellant shipped the material necessary in the construction of this bridge to Wiimot, and there established the emporium or warehouse from which it furnished to the Yancey Construction Company all the material the latter company required to do the work under its contract.

The facts bring this case within the principle announced by the Supreme Court of the United States in Browning v. Waycross, 233 U. S. 16; General Ry. Signal Co. v. Virginia, 246 U. S. 500, and York Mfg. Co. v. Colley, 247 U. S. 21, and that line of cases.

The judgment is correct, and it is affirmed.


text:
    Meeks v. State.
    Opinion delivered December 17, 1923.
    1. Criminal law — corroboration op state’s witnesses. — In a prosecution for selling intoxicating alcoholic liquors -it is not essential that the testimony of a witness for the State he corroborated by any other testimony.
    2. Intoxicating liquors — instruction.—Where, in a prosecution for selling alcoholic liquor, the testimony of the State was .directed merely to proving the sale of whiskey, an instruction that it was a violation of the law to sell or give away “any intoxicating liquor” was not open to a general objection as authorizing a conviction for selling intoxicating liquor not containing alcohol.
    3. Criminal law — instruction—reasonable doubt. — An instruction on reasonable doubt which, after defining the phrase, added that “a reasonable doubt is that condition of mind where a rea- ■ sonable man, after having carefully considered a situation that is of vital interest to himself, and viewed it from every angle and considered it carefully, and then would be uncertain what to do,” held not open to general objection.
    4. .Criminal law — instruction—credibility of witnesses. — Instruction as to credibility of witnesses held not open to general objection as requiring the jury to accept as true any part of the testimony of a witness they may believe to wholly false.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.

      G. P. George .and Prank Strangways, for appellant.

      J. 8. Utley, Attorney General, John L. Garter, Assistant, for appellee.
   Wood, J.

The appellant was indicted for the crime of selling intoxicating liquor. The indictment, omitting formal parts, charged that the appellant “did unlawfully and feloniously sell and give away, and was unlawfully and feloniously interested in the sale and giving away, of alcoholic, vinous, malt, spirituous or fermented liquor. ’ ’

W. D. Laney, a witness for the State, testified to the effect that some time in November or December, 1922, he bought whiskey from the appellant in Ashley County, Arkansas. He testified to buying .a quart of whiskey on two different occasions from the appellant and paying him the sum of $3 therefor. It was moonshine whiskey. The appellant was a witness in his own behalf,- and he testified that he never sold .any whiskey to the witness Laney. He stated that there was no trouble between him and the prosecuting witness Laney, except that witness had reported to Attorney General Coco at Bastrop, La., concerning this case.

The jury returned a verdict of guilty and fixed appellant’s punishment at imprisonment in the State Penitentiary for one year. Judgment was rendered in accordance with the verdict, from which is this appeal.

1. The appellant contends that there was no testimony to sustain the verdict, inasmuch as the State had only one witness, whose testimony was uncorroborated. But it is not essential that the testimony of the witness for the State be corroborated by any other testimony. Nelson v. State, 139 Ark. 14. The credibility of the witness was for the jury. The verdict shows that the jury believed and accepted the testimony of the witness for the State. The State, in criminal cases, is not required to establish the guilt of the accused by a preponderance of the evidence, but is required to prove such guilt beyond a reasonable doubt. The court correctly instructed the jury on the’ subject of reasonable doubt, and the testimony was sufficient to sustain the verdict.

2. The appellant contends that the court erred in giving the following instruction: “Gentlemen of the jury, the court tells you that it is a violation o'f the laws of the State of Arkansas to sell or give away, or be interested in the sale or giving away of any intoxicating liquor, any alcoholic liquor or intoxicating liquor, any alcoholic intoxicating* liquors.” The appellant offered a general objection to the instruction.

The appellant argues that, under the instructions, the jury might have found that the defendant had sold a concoction of intoxicating liquors, such as coco-quinine, or other intoxicating drugs, that did not contain any alcoholic liquors. .Appellant’s contention cannot be sustained. There was no testimony tending to prove that the appellant sold intoxicating liquor of any description except whiskey. It is a matter of common knowledge, of which this court will take judicial notice, that whiskey is an intoxicating alcoholic liquor. Johnson v. State, 152 Ark. 218. It is obvious that the court intended to define the offense charged in the indictment under the statute as that of selling or giving away, or being interested in the selling or giving away, of alcoholic intoxieating liquors, contrary to the statute. Section 6160, C. & M. Digest. If the appellant conceived that the instruction was susceptible of any other interpretation, he should have made a specific objection to the instruction.

3. The appellant contends that the court erred in giving the following instruction: “By the expression 'reasonable doubt’ is not meant every possible doubt, because everything relating to the affairs of this life and depending upon the testimony of witnesses to establish it is open to some doubt, but a reasonable doubt is that condition of mind when a reasonable man, after having carefully considered a situation that is of vital interest to himself, and viewed it from every angle and considered it carefully, and then would be uncertain what to do, that is a reasonable doubt; and a jur’or may be said to be satisfied beyond a reasonable doubt, when, after a careful and candid consideration and comparison of all the testimony in the case, there remains in his mind an abiding conviction that the defendant is guilty.” • The appellant here objects to the following language in the above instruction: “But a reasonable doubt is that condition of mind when a reasonable man, after having carefully considered a situation that is of vital interest to himself and viewed it from every angle and considered it carefully, and then would be uncertain what to do.” The appellant did not offer any specific objection to the above phraseology, but contented himself with a general objection to the instruction. The language above used is objectionable, if for no other reason, because any effort to define a reasonable doubt other than in the simple form that has been so often approved by this court is unnecessary, and by the repetition of the same idea assumes an argumentative phase. But the court below was not asked to eliminate the language which appellant urges as reversible error, and it occurs to us that it was but an effort on the part of the trial court to make plainer that which the court had already sufficiently defined without the use of such language. The language, taken in connection with that which immediately preceded as well as that .which followed it, could not have misled the jury and was not harmful to the appellant. In the absence of a specific objection, it was not reversible error to give the instruction in this form, though it is not a precedent to be approved, and, if specific objection had been offered to it, the court should have .sustained the objection and eliminated the phraseology above quoted.

In this connection it may be said that the books are full of adjudicated cases in which the courts have attempted, in varying language, to give a definition of reasonable doubt. See cases on the subject collated in vol. 7, Words & Phrases (Reasonable Doubt); 2 Bishop’s New Criminal Procedure, 938, and cases cited in note. Mr. .Bishop says: “There are no words plainer than ‘reasonable doiibt’ and none so exact to the idea meant. Hence some judges, it would seem, wisely decline attempting to interpret them to the jury.”

■ This court, in one of its early cases, Palmore v. State, 29 Ark. 248-266, approved the following definition of reasonable doubt: “The jury are instructed that a reasonable doubt is not a mere possible doubt, because anything relating to human .affairs, and depending on moral evidence, is open to some possible ur imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they do not feel an abiding conviction to a moral certainty of the truth of the charge. ”

Judge Riddick, speaking for the court in the case of Bell v. State, 81 Ark. 16-21, commenting upon an instruction substantially in the form of that given in Palmore v. State, supra, said: “This was a very satisfactory explanation of the term (reasonable doubt) and was all that was needed, and has ample precedent to support it.” See also Gilcoat v. State, 155 Ark. 450-465; Flake v. State, ante, p. 214.

If the term “reasonable doubt” can be made any plainer at all by negative definitions, then, of all the multiplied efforts to that end shown by the numerous cases in the reports, none can be found, perhaps, more satisfactory than that given in Palmore v. State, supra. It may be well to state in this connection, for the benefit of trial judges, that an instruction in this form has never been condemned, but always approved. Because it has been so uniformly approved, and because any substantial deviation therefrom involves the possibility of reversible error, it would be well, when a definition of reasonable doubt is requested, or given by the court on its own motion, to adopt the above form. Far better not to try at all to “paint the lily,” to “gild refined gold,” or to “add a new color to the rainbow,” than to try and fail. The phraseology objected to did not render the instruction, as a whole, inherently defective, and, in the absence of a specific objection, the court did not err in giving it.

4. On the subject of the credibility of witnesses the court instructed the jury as follows: “You are the sole judges of the weight of the evidence and the credibility of the witnesses, where the evidence, as in this case, sharply conflicts. It is your duty to examine into the evidence and measure it by the reasonableness or unreasonableness of the testimony given by the witness; the knowledge and means of information that the witness has about what he has testified; his interest, if any, in the result of your verdict; his bias in favor of or his prejudice against the defendant, if any has been shown by the testimony, or which, from the testimony, the jury might reasonably infer to exist; the manner and demeanor of the witness while upon the witness stand; together with all the facts and circumstances surrounding the witness. The jury should not totally disregard the testimony of any witness, neither should it blindly accept as true anv statement made by the witness, simply because he savs it is, but the jury should measure it by the rule that I give you, judging it by common sense and experience of ordinary affairs and men and things.” The appellant offered a general objection to the above instruction.

Counsel for the appellant say that the ruling of the court in giving the above instruction is reversible error because nowhere in the instruction is there .any qualification telling the jury that, if they believed the witness to have testified falsely throughout, they may disregard all his testimony, and that the instruction tells the jury that “it should not totally disregard the testimony of any witness,” etc.

When the instruction is read as a whole, it is obvious that the court did not mean to tell the jury that they were not at liberty to totally disregard the testimony of any witness if they believed that the whole of such testimony was false. When all the language of the instruction is considered, it is manifest that what the court meant to tell the jury was that they should consider the testimony of a witness in the light of the knowledge and information of the witness concerning the matters about which he testifies, his interest in the result of the verdict, his bias in favor of, or his prejudice against, the accused, together with Ms demeanor upon the witness stand, in judging the weight and credit to be given such testimony. Certainly, the court did not mean to tell the jury that they could not totally disregard the testimony of any witness, or any portion of the testimony of any witness, which they believed, under the above rule, to be false. If counsel for appellant conceived that such was the effect of the instruction, as they here contend, they should have so informed the court by a specific objection. They cannot avail themselves of an objection to phraseology which did not render the instruction inherently defective, without a specific objection. See Flake v. State, supra.

We find no reversible error in any of the rulings of the trial court. Its judgment therefore is affirmed.


author: Wood, J. McCulloch, C. J.,

text:
    Bennett v. State.
    Opinion delivered December 17, 1923.
    1. Grand jury — presence op outsider during deliberations. — Regulation of the subject whether other persons may be present in the grand jury room during the time when the ‘ jurors are deliberating or voting on, a charge, held within the power of the Legislature.
    2. Statutes — implied repeal.- — -Repeals by implication are not favored, and are never allowed unless there is an irreconcilable repugnancy between the later and the older statute.
    3. Grand jury — presence op stenographer. — Crawford & Moses’ Dig., § 2996, providing that “no person, except the prosecuting attorney and the witnesses under examination, are permitted to be present while the grand jury is examining a charge, and no person whatever shall be present while the grand jury is deliberating or voting on a charge,” is in conflict with and repealed by the later act of 1917, No. 42, in so far as the latter act authorizes the presence of the court stenographer for the grand juries of the Seventeenth Judicial District to be present “in the grand jury room at all -times.”
    4. Jury — selection prom bystanders — Under Crawford & Moses’ Dig., § 6837, providing for summoning bystanders, it was not an abuse -of discretion, where the regular and ¡special panels are exhausted, to order the sheriff to go into certain townships and summon 25 men to serve as jurors.
    5. Homicide — instruction—drunkenness as defense. — In a prosecution for involuntary manslaughter where the killing was the result of defendant recklessly, wantonly and carelessly driving his automobile while drunk, since intent is not an ingredient of the crime, it was not error to refuse to charge that defendant was not guilty if he was ¡so crazed by drink “-that he did not know what he was doing.”
    Appeal from Arkansas Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      George M. GhapUne and Joseph Morrison, for appellant.

      J. 8. TJtley, Attorney General, John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Wood, J.

This is an appeal from a judgment sentencing the appellant to nine months’ imprisonment in the State Penitentiary upon a conviction of involuntary manslaughter. The testimony for the State tended to prove that on the 15th day of December, 1922, about three o’clock p. m., the appellant was operating and in control of an automobile on the public highway in Arkansas County; that he was drunk,-and, while running the car at a speed of from twenty-five to thirty-five miles an hour, he came in contact with one Ed Miller, who was driving his team hitched to a wagon loaded with rice. Miller at the time was walking by the side of his team, and the collision threw him under his wagon, the wheels of which ran over his neck, causing his death. The testimony on behalf of the appellant tended to prove that he was unconscious at the time, as the result of voluntarily drinking what he thought was whiskey.

1. The appellant alleges three grounds for the reversal of the judgment. First, that the court erred in refusing to quash the indictment. The record shows that Joe Melton, the official stenographer of the grand jury of the Seventeenth Judicial Circuit, was in the grand jury room when the grand jury had under consideration the charge against appellant embraced in the present indictment. He testified that he took down the testimony of the witnesses. They had voted many times, and, when he saw they were going to vote the last time, he left the room and went down to get the prosecuting attorney to prepare the indictment. He requested the foreman of the jury that they should vote the indictment while he was absent. When he came back with the indictment, the foreman informed him that they had voted on it while he was away. The testimony of the foreman of the jury shows that the stenographer was absent when the final vote was taken, but they had voted many times possibly while he was present. Section 2996 of Crawford & Moses’ Digest provides: “No person except the prosecuting attorney and the witnesses under examination are permitted to be present while the grand jury is examining a charge, and no person whatever shall be present while the grand jury is deliberating or voting on a charge. ”

Act No. 42 of the Acts of 1917, page 202, provides for a court stenographer for the grand juries of the Seventeenth Judicial District of the State of Arkansas. After describing his duties in detail in §§ 2 and 3, § 3 concludes with the following language: “And said stenographer’s presence in the grand jury room shall be allowed at all times, and he shall be subject to the same penalties as are now or may hereafter be prescribed by law for divulging any of the secrets or proceedings of the grand juries.” This court has declared'in several cases, in effect, that, under the provisions of the general law (% 2996, supra), the presence of any one in the grand jury room other than the jurors themselves, while they are deliberating or voting on a charge, would be ground for quashing the indictment on that charge. See Bennett v. State, 62 Ark. 516; Richards v. State, 108 Ark. 89; Tyner v. State, 109 Ark. 145. In these cases this court, in effect, negatively at least, has held that it is within the power of the Legislature to prescribe that no one shall be present in the grand jury room during the time when the jurors are deliberating or voting on a verdict. It is equally within the constitutional power of the Legislature to declare that parties other than the grand jurors may be present while the jurors are deliberating or voting upon a charge. The whole subject is within the power of the Legislature, and there is no constitutional restraint upon such power. The wisdom and policy of such legislation therefore must prove itself to the Legislature. It is impossible to escape the conclusion that the language of special act No. 42 of the Acts of 1917 repeals, by necessary implication, the provision of the general law above quoted on the subject, as' applicable to the Seventeenth Judicial District.

The presence of the stenographer in the grand jury room “at all times” necessarily excludes the idea that his presence cannot be allowed during the time the grand jury are deliberating or voting on a charge. The intent must be derived from the language used, and its meaning is too plain to admit of any other construction. The special act expressly repeals all laws or parts of laws in conflict therewith. Repeals by implication are not. favored, and are never allowed unless there is an irreconcilable repugnancy between the later and the older statutes. Bank of Blytheville v. Willis, 76 Ark. 296, and cases there cited; Bartlett v. Willis, 147 Ark. 374. See also Bank of Blytheville v. State, 148 Ark. 504. Here there is a direct and irreconcilable conflict between the provisions of the general law and the provisions of the special act as applied to the Seventeenth Judicial District. So, the latter repeals the former, in so far as it applies to that district. The court therefore did not err in refusing to quash the indictment because of the presence of the stenographer while the grand jury was deliberating on the charge 'in the indictment.

2. Section 6837, Crawford & Moses’ Digest, provides that, if the jury for the trial of any case cannot be obtained from the panel of petit jurors, bystanders shall be summoned, as the court may direct, to complete such jury. After the regular and special panels selected by the jury commissioners had been exhausted in the effort to impanel the trial jury, the court ordered the sheriff to go to McFall and Keaton Townships and summon twenty-five men to serve as jurors, and directed him “to get good men possessing the qualifications as petit jurors.”

Appellant contends that this direction of the trial court was reversible error. This court has held that an accused person is not entitled to have any particular jurors try his case, and that his rights are fully protected if he secures a panel summoned under the orders of the court, who, at the time they are called to answer as to their aualifications. are found to be duly qualified. McCain v. State, 332 Ark. 501. We have also held tliat it was not reversible error to refuse to direct the sheriff, at the instance of the accused, to summon as bystanders persons present in the courtroom while the trial jury is being formed. Pate v. State, 152 Ark. 553. In the last case, construing the statute (§ 3Í45) which requires the court to order the sheriff to summon bystanders to complete the jury after the regular panels have been exhausted, we held “that by ‘bystanders’ is meant electors possessing the qualifications ■ of jurors, and in their selection the body of the county is open and available to the sheriff.” To be sure, the same rule's for the selection of -bystanders as jurors are applicable to the State as well as to the defendant. But the direction of the court that the sheriff summon jurors from some particular township or townships is not in conflict with any provision of the law requiring an impartial jury to be selected. The test, after all, is as to whether the jurors selected anywhere in the county are found, on their voir dire, to possess the necessary qualifications as jurors. In the exigencies (of '.trials the presiding judge must necessarily be vested with a wide discretion in the matter of impaneling the jury, after the panels provided by statute are exhausted, so as to expedite the business of the court. The presumption must be indulged always, until the contrary is shown, that the trial court did not abuse its discretion in the manner of impaneling the jury. For aught that appears in this record to the contrary, it may have been exceedingly important to have directed the sheriff to summon a jury from that portion of the body of the county where jurors could most likely be obtained, who had not formed or expressed an opinion on the merits of the case, because of residence remote from the immediate scene of the alleged crime. There was therefore no error in the ruling of the court in the matter of directing the sheriff to summon special veniremen to complete the trial panel.

3. The appellant prayed the court to instruct the jury as follows: “If you find from the evidence in this case that the defendant drank what he thought was whiskey,“but the effects upon the defendant were of such nature as to paralyze his mind and was contrary to the effect of whiskey, and that he was crazed by said dope to that extent that he did not know what he was doing, then and in that event the defendant would not be guilty of the crime charged, even though you find he did, while operating his automobile, strike and knock the deceased under a wagon, which ran over and killed him.” The court rejected the prayer, to which ruling the appellant duly excepted. The intent to commit the offense of involuntary manslaughter of which the appellant was convicted is not an ingredient of the crime. Involuntary manslaughter is, as its name implies, an involuntary killing done without any intent to kill, but in the commission of some unlawful act, or in the improper performance of some lawful act. Tharp v. State, 99 Ark. 188; Trotter v. State, 148 Ark. 466.

The testimony of the appellant shows that he “voluntarily drank the dope” which produced his temporary besotted and unconscious condition. No effort is made to prove that the appellant, at the time of the killing, was afflicted .with any disease of the mind, either permanent, temporary, or periodical, such as delirium tremens, mania a potu, or dipsomania. Casat v. State, 40 Ark. 511. It appears that the killing was the result of reckless, wanton, and careless driving of his automobile, while the appellant was unconscious, as the result of beastly intoxication caused by his own voluntary drinking. Voluntary drunkenness was no excuse for the' crime. The court did not err in refusing appellant’s prayer for instruction. See Bowen v. State, 100 Ark. 232; Madding v. State, 118 Ark. 506; Alford v. State, 110 Ark. 302; Carter v. State, 135 Ark. 169.

There is no reversible error in the record. Therefore let the judgment be affirmed.

McCulloch, C. J.,

(dissenting). The general statutes of this State (Crawford & Moses’ Digest, § 2996) provide that “no person whatever shall be present while the grand jury are deliberating or voting on a charge,” and this court has held that the presence of any person, other than members of the grand! jury, at the time of deliberating or voting 'on a charge, affords sufficient grounds for quashing an indictment. Bennett v. State, 62 Ark. 516; Richards v. State, 108 Ark. 89; Tiner v. State, 109 Ark. 138.

The statute now under consideration applies only to one of the judicial circuits of the State, and authorizes the employment of a stenographer for the assistance of the prosecuting attorney and the grand jury. The section referred to in the majority opinion prescribes the duty of the stenographer to attend the meetings of the grand jury for the purpose of talcing down, and, when necessary, transcribing, the testimony of witnesses who testify before that body, and in the concluding portion of this section it is'provided that “the stenographer’s presence in the grand jury room shall be allowed at all times.” The rule of construction that repeals by implication are not favored and will not be declared, unless there is an irreconcilable repugnance between the provisions of two statutes, or unless a later act is found to cover the entire subject of an earlier act', is so well settled that it scarcely needs citation of authorities to support it. The rule was announced at a very early date in the decisions of this court, and has continued down to the present. The question for determination, then, in the construction of this statute is whether or not there is any irreconcilable repugnance between this statute, which applies only to one circuit, and the general statute of the State, which contains a plain provision to the effect that no person shall be present in the grand jury room during the deliberation or voting upon an indictment. The meaning of the words in the latest statute, “allowed at all times,” must be tested by the .purpose for which they are used and the connection in which they are used. The purpose of this statute was to provide assistance to the grand jury and to make it the duty of the stenographer to attend the meetings of the grand jury for the purpose of taldng down the testimony of witnesses. The stenographer has nothing to do with the deliberations of the jury or the voting upon the question of an indictment. He lias no duty to perform during those proceedings, and therefore the framers of the statute could not have had it in mind that he was to be allowed to.be present in the grand jury room at any other time except when performing his duties. Then the words “at all times” must be deemed to clearly refer to the times when the prosecuting attorney is commanded to attend the meetings of the grand jury to perform his' duties, and not to any other occasion, when there is a direct command from the general statute that no person shall be present, that is to say, while the grand jury is deliberating or voting.

It seems clear to my mind that, under familiar rules of interpretation, it ought to be held that this statute does not repeal by implication the general statute on the subject so as to permit the stenographer of the Seventeenth Circuit to be present in the grand jury room while the jury is deliberating or voting upon an indictment. There can scarcely be found a single reason why the stenographer should be permitted to be present during the deliberations of the grand jury, any more than other persons, especially since the general statute forbidding the prosecuting attorney from being present is not affected by the new statute. Under this statute, as now interpreted by the court, the prosecuting attorney, a sworn officer of the law, elected by the people to prosecute public offenses, is denied permission to attend the sittings of the grand jury while they are deliberating or voting, and yet the stenographer is allowed to be present at those times.

I dissent, therefore, from the conclusion of the majority, and am authorized to say that Mr. Justice Hart concurs with me in the expression of these views.


author: Hart, J.,

text:
    Markle v. Fallin.
    Opinion delivered December 17, 1923.
    1. Vendor and purchaser — acceleration of payment's — penalty. —Where a vendor sold land under a contract stipulating that, upon default in payment of either principal or interest of the notes when due, all of the notes should become due and payable at the option of the holder, such provision is not invalid, as being in the nature of a penalty or forfeiture.
    2. Vendor and purchaser — provision for acceleratig payments.— Where a series of notes were given in payment of a tract of land, and the deed stipulated that, upon default in payment of either principal or interest of the notes when due, all of the notes should become ‘due and payable at the option of the holder, such a stipulation is valid, though it is not carried into the face of the notes.
    3. - Vendor and purchaser — enforcement of lien. — In a suit to enforce a vendor’s lien for the purchase money of land, it is no defense that the vendor, plaintiff, was not the holder of three of the purchase notes, having desposited them as collateral security with a certain bank, where the bank was also a party and asking that the lien be foreclosed.
    4. Vendor and purchaser — interest—conflict between notes and deed — Where notes given for the purchase-money of land recite that they bear ten per cent, interest from date, but the deed recites that they bear eight per cent, interest, the notes will govern.
    5. Appeal and error — conclusiveness of chancellor’s finding.— A finding of the chancellor not dearly against the preponderance of the evidence will not be disturbed on appeal.
    Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    J. A. Fallin brought this suit in equity against Lillie H. Vick, now Markle, to obtain judgment against her for the amount of the purchase money notes for a tract of land in Washington County, Ark., purchased by the defendant from the plaintiff, and to foreclose the plaintiff’s vendor’s lien on said land.
    The defendant filed an answer and cross-complaint, in which she denied liability on the notes, and alleged that there was an understanding between the plaintiff, his son, and herself that the notes should be paid by the son of the plaintiff as a payment to her of money she had loaned him. The defendant asked that R. F. Fallin, the son of the plaintiff, be made a party to the suit. 'The prayer of the cross-complaint was, in the alternative, that the defendant should reconvey the land to the plaintiff if R. E. Fallin should pay her the amount which he had borrowed from her, or, in the event that he failed to pay her, that the notes sued on be canceled and set aside, and that the title to the land in question be invested in her, free from any lien for the purchase money.
    The plaintiff denied the allegations of the cross-complaint. The original complaint was filed on the 10th day of October, 1921, and on the 28th day of August, 1922, the Arkansas National Bank was allowed to file an intervention. The bank stated that J. A. Fallin had borrowed $1,500 from it, which, together with the accrued interest, was due and unpaid-; that, as collateral security for the loan, he had transferred to the bank three of the purchase money notes sued on herein for the sum of $1,000 each. The bank prayed for a foreclosure of the vendor’s lien on said land.
    The defendant first moved to strike the intervention of the' Arkansas National Bank from- the files of the court for want of jurisdiction. Subsequently the defendant filed an answer to the intervention of the Arkansas National Bank, in which she denied the allegations therein. She prayed that the bank take nothing as against her, and for all other general and equitable relief to which she may be entitled.
    R. E. Fallin entered his written appearance to the cross-complaint filed against him by the defendant.
    . By agreement of the parties the cause was set for hearing on November 21, 1922, on oral testimony. The notes sued on were made exhibits to the pleadings and introduced in evidence. The deed of J. A. Fallin and wife to Lillie, H. Yick was executed on the 10th day of August, 1920, and filed for record on Nov. 16, 1920. The consideration recited in the deed is the sum of $5,500. The deed also recites that, a vendor’s lien is retained on the land to secure the payment of part of the purchase price in the sum of $4,500, evidenced by five notes of even date. Four of the notes are for $1,000 each, due respectively on August 10, 1921, 1922, 1923, and 1924. The remaining note is for $500, due August 10, 1925. The deed recites that all of said notes bear interest at the rate of 8 per cent, per annum from date until paid, payable annually, and, if not so paid, to be added to the principal and to bear the same rate of 'interest as the principal. The deed also contains the following: “And it is agreed and understood that, in default of payment of either principal or interest when due, all of said notes will become due and payable at the option of the holder. ’ ’ The notes recite that they bear interest from date at the rate of 10 per cent, per annum, payable annually, and, if not so paid, to become as principal and bear the same rate of interest. The notes do not contain any accelerating clause. Ño part of the principal or interest on the notes has been paid by the defendant. Subsequently the defendant, Lillie H. Vick, married, and is now Lillie Maride.
    She was the principal witness for herself. According to her testimony, she came to Fayetteville, Ark., from Wichita Falls, Texas, and resided in Fayetteville about two years. She became acquainted with R. E. Fallin at Wichita Falls, and had known him about five years before the transaction in question was had. R. E. Fallin was engaged in the oil business at Wichita- Falls, and, prior to the time she came to Fayetteville, she lent him some money. After she came to Fayetteville, she lent him more money, so that the total amount was about $5,000. The money so borrowed was evidenced by promissory notes and an open account. The defendant purchased the land in controversy from the plaintiff in August, 1920. R. E. Fallin, the son of J. A. Fallin, the plaintiff, induced her to purchase the land. She paid the plaintiff $1,000 on the purchase price. E. E. Fallin agreed to make the deferred payments to his father from the money which she had loaned him. E. E. Fallin told her that he and his father were on a big oil deal in Texas, and that he had borrowed this money to invest in the oil project. The plaintiff told her that he was interested in his son’s oil deal in Texas, and that he had borrowed $1,500 from the bank to invest in it. E. E. Fallin told her, at the time she purchased the land from his father, that he would pay the balance due on the property, which- was $4,500, out' of what he owed her, and his father said that would be all right. The defendant was a widow at that time, and it appears from the record that E. E. Fallin wrote her many love letters from Texas while she was in Fayetteville.
    According to the testimony of George Williams, he was acquainted with E. E. Fallin and J. A. Fallin, his father. In 1920 he had a conversation with E. E. Fallin, in which Fallin told him that he had some of the defendant’s money invested in an oil well in Texas, but that he would not let her lose anything on it. He said that if the well came in dry he would pull the casing and sell it to pay her.
    According to the testimony of W. H. Spencer, he was acquainted with J. A. Fallin, and had seen Eobert Fallin twice. He made a trip to Texas to look after some oil leases, and was at a well which was -being promoted by É. E. Fallin. He heard' the plaintiff say that he had oil interests in Texas. E. E. Fallin was the promoter of a syndicate known as block 14. The witness, J. A. Fallin, and B. F. Smith were the trustees, empowered by the authority of the purchasers to sell block 14, containing in all 160 acres, in 5-acre lots, and to make the purchasers deeds therefor.
    Jay Fulbright, president of the Arkansas National Bank, was a witness for it. He was in active control of the business of the bank, and made the loan to J. A. Fallin of $1,500, and, as security therefor, Fallin transferred to the hank the three notes in question, signed by Lillie H. Vick, for $1,000 each, and due respectively August 10, 1921, 1922 and 1923. These are the notes secured by a vendor’s lien on the lands mentioned in the plaintiff’s complaint. The bank made the loan to J. A. Fallin in the regular course of business, on the faith of the security these collateral notes gave it. No part of the principal of the note due to the bank has been paid.
    According to the testimony of J. A. Fallin, he sold the land in question to Lillie H. Vick and delivered possession of it to her. The balance of the purchase money was evidenced by the promissory notes involved in this lawsuit. He borrowed $1,500 from the Arkansas National Bank and deposited with it, as collateral security, three of the notes given for the purchase money by the defendant which first' came due. He indorsed these three notes to the bank and left them with it as collateral for the money which he had borrowed. No part of the notes given by the defendant for the purchase price of the land, either the principal or interest, has been paid.
    The plaintiff denied that he was interested in any oil enterprise in the State of Texas with his son R. E. Fallin, except to lend him some money. The defendant understood that he had lent his son some money to be invested in an oil enterprise, and she had done the same thing. They obtained a lease to 160 acres of land and cut it up into 5-acre blocks. B. F. Smith and C. A. Fallin, a son of the plaintiff, came to him and told him that if he would lend them some money on the venture they would give him one-third of the profits. The consideration for the whole lease was $3,000, and the plaintiff lent them a part of it, and became one of the trustees to sell the leases when the 160-aere tract was divided up into 5-acre tracts. He admitted that Mrs. Vick had paid him $1,000 on the purchase price of the land. He denied that there was any understanding or. agreement on his part that any money that the defendant had loaned to his son, R. E. Fallin, was to be credited on the purchase price of the land. On this branch of the case we quote from the testimony of the plaintiff in the record the following:
    “Q. I want to ask you one more question, if at any time there was any understanding or agreement between you and Mrs. Markle that any money R. E. Fallin might owe her was to be credited on her notes on the purchase of this place? A. No sir. Q. Was that matter ever mentioned to you by her? A. No sir. Q. By anybody else for her? A. No. sir. At one time she asked me, after the note was due, if I would take his note. I said no, I needed my money. I did tell her if she would pay the interest I would continue it for a while. She said she was going away and wanted another month — she said she would write back, but she never wrote back. When she asked me to take Robert’s note, I told her I didn’t stand good for her and Bob’s foolishness.”
    On cross-examination the plaintiff admitted that he loaned his son in all about $2,600 to be invested in oil enterprises, and of this amount he had borrowed $1,500.
    H. H. Fallin, a son of the plaintiff, was a witness in his behalf. According to his testimony, he went to Texas in August, 1919, and was engaged in the oil business there until September, 1921. R. E. Fallin was engaged in promoting oil enterprises during that time. 'Their father had no interest down there, except to loan R. E. Fallin money. The defendant also loaned money to R. E. Fallin.
    C. A. Fallin, another son of the plaintiff, was a witness for him. According to his testimony, he had- a silent interest with his brother, R. E. Fallin, in Texas in 1918, 1919 and 1920. He never took any active interest in the oil business, but merely invested some money with his brother, R. E. Fallin. The plaintiff loaned C. A. Fallin and R. E. Fallin money to invest in the oil business, and did this for the purpose of helping them.

      The chancellor entered a decree in favor of Lillie Vick Markle against R. E. Fallin for the money which she had loaned him, bnt dismissed her cross-complaint against the plaintiff for want of equity. Personal judgment was given the plaintiff against the defendant for the amount of the notes given for the purchase money1 of the land sued on, and a decree foreclosing the vendor’s lien was also entered of record in favor of the plaintiff and of the Arkansas National Bank.
    To .reverse the decree rendering a personal judgment against her and foreclosing the vendor’s lien on the land in question, the defendant has duly prosecuted an appeal to this court.

      Sullins & Ivie, for appellant.
    Plaintiff, Fallin, at the time he brought the suit, and elected to declare all of the notes due because of the default in payment of the first note, due August 10, 1921, was not the holder of that note within the meaning of the statute, C. & M. Digest, § 7661, and the suit was therefore premature, and should have been abated. 92 Ark. 460; 106 Ark. 310; Jones on Mortgages, 5th ed.; § 1182.

      B. J. Wilson and B. B. Davidson, for appellee.
    1. The fact that the intervener bank held 'the note which first fell due as collateral security for a debt of plaintiff Fallin to the bank did not deprive him of. ownership therein, but made it the holder thereof for a special purpose, and as trustee for Fallin. 32 Ark. 56. He had the right to sue the maker, subject to the rights of the bank, especially where the bank joined in the action. 65 Ark. 543. And, having such right, he had also the right to declare all the notes due and payable. The cross-bill sought, to cancel all the notes, set out a new cause of action, and made it necessary that the bank be brought in as a party, and this amounted to a waiver, even if Fallin had brought the suit prematurely. 85 Ark. 246-251. It gave the court jurisdiction of the whole matter and to administer complete relief. 48 Ark. 312; 56 Ark. 93; 77 Ark. 570; 81 Ark. 163; 100 Ark. 28; 147 Ark. 184.
    2. When ,a contract is reduced to writing, no evidence is admissible tending- to add to or vary the terms of the contract. 92 Ark. 304; 94 Ark. 130; 99 Ark. 218; 102 Ark. 326.
   Hart, J.,

(after stating the facts). It appears from the record that only one of the notes given for the purchase price of the land in question was due at the time the original complaint was filed by the plaintiff on the 10th day of October, 1921, and that the final decree was entered of record on the 22nd day of November, 1922. The deed from the plaintiff to the defendant contained a clause providing that it was agreed that, in default of the payment of either principal or interest of the notes when due, all of the notes should become due and payable at the option of the holder. The notes sued on contain no such clause. Hence it is contended that the action was prematurely brought.

While there is a division of the authorities on this question, it has been set at rest in this State by the decision in Fairbairn v. Pofahl, 144 Ark. 313. It was there held that where a vendor sold land under a contract stipulating that, upon default in payment of two of a series of notes, the entire sum might be declared due, such provision is not invalid as being in the nature of a penalty or forfeiture. So, whatever may. be the rule elsewhere, it may be taken as settled in this State that, though there be no accelerating clause in the notes, an accelerating clause in the contract, whether it be contained in a mortgage or a deed retaining a vendor’s lien, will enable the holder, upon the breach mentioned in such clause, to foreclose for the full amount of the notes.

It is next insisted that the plaintiff was not the holder of the first three notes, because he had deposited them with the Arkansas National Bank as collateral security for a loan obtained from. it.

Now it will be remembered that B>. E. Fallin was made a party to the action at the request of the defendant, and that he entered his appearance in writing. The Arkansas National Bank was permitted to file its intervention in the action. It asked that the rights of the bank be declared superior to all the parties in the suit, and prayed for a foreclosure of the vendor’s lien to secure the payment of the note executed to it by the plaintiff.

The defendant, on the 21st day of November,-1922, filed an answer to this intervention, in which ■ she' denied the superiority of the lien of the bank, and ásked -that the intervener take nothing as against her. The. defendant also prayed for all other general and equitable- relief to which she might be entitled.

This court has uniformly held that the object of the Code system of pleading is to force a trial -on the merits. Where the pleadings furnish the opposite party with notice of the facts upon which the pleader relies, and the parties, by consent, go to trial upon the issues thus raised, they will be determined by the court and -the rights of the parties settled according to the issues raised by the pleadings and the proof.

In the case at -bar all the parties interested in the transaction in question were before the court aiid asked that their respective rights be determined. Their pleadings stated the facts upon which their respective contentions were based, and, by agreement of the parties, the case was heard upon oral proof. The proof was directed to the issues raised by the pleadings. These issues were decided adversely to the contention of the defendant. The plaintiff and the bank are not contesting with each other as to who is the holder of the notes. Both of them are asking that the vendor’s lien be foreclosed. The defendant would have been fully protected by a payment of the notes under the terms-of the decree, and is not prejudiced in anv manner by the form of the suit. Both the plaintiff and the bank elected to declare all the notes due and to ask for a foreclosure of the vendor’s lien.

Therefore, raider the decision of onr own court as indicated above, with regard to the accelerating clause in the deed, the chancellor was right in entering a decree ’ of foreclosure for the amount of the unpaid purchase money notes.

Another contention made by the defendant is that the notes on their face recite that they bear 10 per cent, interest from date, and that the deed recites that they only bear 8 per cent. The recitation in the deed will be treated as a mistake, for the face of the notes themselves must govern as to the rate- of interest.' The -notes are •the principal thing, and contain the obligation of the defendant. The recitation,of the notes in the deed gives the vendor a lien on the land for the unpaid purchase money. There can be no doubt that the notes sued on are the ones referred to in the deed, and, for- that reason, the recitation in the notes as to the rate of interest must control.

This brings us to a consideration of the merits of the controversy between the plaintiff and the defendant. This is a question of fact, and the plaintiff and the defendant are the chief witnesses in the case. Each flatly contradicts the testimony of the other. The testimony of the defendant is corroborated, to some extent, by two witnesses who testified that the plaintiff was interested with his son, B. E. Fallin, in oil leases in Texas. The plaintiff, however, explained that his interest was only to lend his son money, and that he expected his loan to be protected by the success his son had in his oil ventures. In this respect he is corroborated by two of his other sons, who were in Texas during the time of the transaction involved in this suit, and who stated positively that their father was not interested in the oil ventures except as a lender of money, just as the defendant was interested. In one instance he became one of the trustees to sell a tract of leases comprising 160 acres, by dividing it into tracts of 5 acres each and conveving them to prospective purchasers. The plaintiff claimed that he did this to secure a loan that he had made to his son, and there is no direct evidence in the record tending to contradict his testimony in this respect. According to his testimony, he and the defendant each lent his son, R. E. Fallin, money, and each realized that getting the money back depended upon the success of his oil ventures. He denied in positive terms that the sale of the property in question was pursuant to any understanding or agreement that any money that the defendant had loaned R. E. Fallin was to be credited on the purchase price of the land.

It appears from the record thaf R.. E. Fallin and the defendant contemplated marriage, and it may be that the confidence inspired-by this relation caused the defendant to purchase the property in question for a home for herself and her future husband. In any event, the testimony of the plaintiff and the defendant is in irreconcilable conflict. The deed and notes made a prima facie case in favor of the plaintiff, and the burden was on the defendant to establish her defense to the suit.

The chancellor held against her on the issue of fact raised by her answer and cross-complaint, and it cannot be said that his finding is against the preponderance of the evidence.

Therefore, under the settled rules of practice in this court, the findings of the chancellor will not be disturbed on appeal, and the decree will be affirmed.


author: Humphreys, J. Smith, J.,

text:
    Goodrich v. Darr.
    Opinion delivered December 17, 1923.
    1. Quieting title — evidence.-—-In a suit to quiet title to lands, -testimony of plaintiff that her uncle 'by will devised a life estate in the lands to her father with remainder over -to his children, and that, after her father died, she acquired the interests of the other heirs, who were her sisters, by purchase, held sufficient to show title to the lands in plaintiff, though the will did not describe the lands, but -conveyed all of testator’s estate, both real -and personal.

      2. Deeds — undivided interest — Any undivided interest in a definitely described tract of land may be conveyed by the owner •thereof to the grantee without first having same segregated from the other land in the tract.
    3. Taxation — tax deed — description op land. — A tax deed is insufficient which describes the land sold as 29/44 of a certain quarter section, such description not being sufficient to locate the part sold with reference to the remaining portions of the tract.
    4. Limitation op actions — color op title — void tax deed. — A tax deed void for insufficient description of the land is not such color of title as will set in motion the two years’ statute of limitations provided by Crawford & Moses’ Dig., § 6947.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    reversed.

      M. H. Dean, for appellant.
    The court erred in dismissing* the complaint of plaintiff and in quieting the title to the lands in the defendants. 81 Ark. 296; 81 Ark. 258; 49 Ark. 266; 153 Ark. 620. A purchaser of land under a void tax title will acquire title under the two years’ statute of limitations only to so much of the land as he has held in actual and adverse possession for the requisite period. 67 Ark. 411. A tax deed void for insufficient description is not such color of title as will set in motion the two years ’ statute of limitation. 135 Ark. 592; 94 Ark. 306; 150 Ark. 347. The statute is penal, and must be strictly construed. 43 Ark. 409; 86 Ark. 300; 11 Ark. 44.

      J. W. Johnson, for appellee.
    Adverse possession, to constitute a bar to the assertion of the legal title by the owner of land, must be actual, visible, open and notorious. 30 Ark. 640; 3 Washburn on Real Property, 134. Neither actual possession, cultivation nor residence is necessary to constitute adverse possession where the property is appropriated to the use for which it was designed, and the only use of which it is susceptible.. 40 Ark. 237. Adverse possession of part of a tract of land through a tenant, under color of title, is sufficient to give title to the whole. 80 Ark. 435; 81 Ark. 258. Actual possession of land held continuously for the statutory period under a clerk’s tax deed, or donation deed issued by the State Land Commissioner, bars a recovery. 77 Ark. 324; 79 Ark. 364.
   Humphreys, J.

Appellant alleged ownership of an undivided 29/44 interest in the N. E. % of section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, and brought suit in the chancery court of said county to cancel an alleged void tax deed, executed by the Commissioner of State Lands of Arkansas to appellee, J. E. Darr, of date June 8,1915, in. which it was recited that the lands conveyed were forfeited to the State of Arkansas under description as follows: 29/44 of NE%, section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, and also to quiet title in her to an undivided 29/44 interest in said land.

Appellee filed an answer denying appellant’s ownership of a 29/44 interest in said quarter section and the invalidity of the tax deed from the State to appellee, J. E. Darr, and pleaded in bar of recovery the two-years’ statute of limitations.

The cause was submitted upon the pleadings and testimony, which resulted in a finding by the court that, at the time of the forfeiture for taxes in 1903, the land belonged to the Goodrich heirs, and that thereafter appellant purchased the interest of the other Goodrich heirs and became the owner of the entire 29/44 interest therein; that the tax deed was void, but that, under § 6947 of Crawford & Moses’ Digest, the two-years’ statute of limitation had run against appellant find barred her from recovery of the land. A decree was rendered dismissing appellant’s bill for want of equity, canceling her deeds to the land and quieting title in appellee, J. E. Darr, to that part of the real estate still owned by him, and in N. W. Black to that part conveyed by J. E. Darr to him, from which is this appeal.

As we read the record and brief of counsel, only four questions are presented to this court for determination:

First, has appellant sufficiently established her title?

Second, if so, is the description in her chain of title sufficiently definite to locate the land? '

Third, is the tax deed based upon a valid forfeiture for the nonpayment of the taxes for the year 1903?

Fourth, will the two-years’ statute of limitation bar a recovery?

(1) Appellant testified that her uncle, Lemuel H. Goodrich, devised her father a life estate in the lands in question, with the remainder over to his children;' that, when her father died, the Goodrich heirs, including herself, became the joint owners thereof, and that she afterwards acquired the interest of the other heirs, who were her sisters, by purchase. The will and deeds from her sisters to herself were introduced in evidence. The will devised all of Lemuel H. Goodrich’s estate, both real and personal, to his executor in trust, with power to sell and convey same, directing that said executor pay the income from the lands and proceeds thereof to his brother, Chester B. Goodrich, during his natural life, and, upon his decease, to divide the real estate or proceeds thereof and all his personal estate among the heirs of the said Chester B. Goodrich. Objection is made to appellant’s, chain of title because the will does not describe the land, and because it was not shown that-he owned the land in question at the time of his death. Appellant’s statement that she and her sisters acquired title to the land by devise from her uncle is tantamount to saying that he owned it at his death.

(2) The suggestion that the description contained in the deeds in appellant’s chain of title is defective in case the description in the tax deed is held to be insufficient, is not tenable. The description 29/44 of N. E. % of section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, in the deed in her chain of title, means an undivided twenty-nine forty-fourths’ interest therein. Any undivided interest in a definitely described tract of land may be conveyed by the owner thereof to the grantee, without first having same segregated from the other lands in the tract.

(3) In the case at bar the land was described in the tax deed as 29/44 of N. E. % of section 30, Tp. 6 N., E. 18 W., in Conway County, Arkansas, containing 104% acres. It must be presumed that the description in the deed followed the description on the delinquent’list and on the assessment roll. This court held, in the case of King v. Booth, 94 Ark. 306, that the following description in a tax deed was defective and rendered the tax deed void: “4/6 of N. W. % section 24, Tp. 6 N., E. 8 W., situate in the county of White, and State of Arkansas.” As a reason for holding the description defective the court said: “When a part of a tract of land is assessed and sold for the nonpayment of taxes, and the description is not sufficiently definite to locate it with reference to the remaining portions of the tract? the sale will be void.” In other words, under the rule announced, in order to give effect to a tax sale of an undivided share in a particular tract of land for the nonpayment of taxes thereon, the whole tract should be described upon the taxbooks and on the delinquent list, under its proper legal subdivision, and the value and amount of taxes set opposite each share. It will be observed that the description in the tax deed in the case at bar is exactly like the description in the tax deed in the case of King v. Booth, supra. In neither case was the whole land described on the taxbooks and the delinquent list, the several parts valued and the assessment apportioned to the several shares. The rule announced in the Booth case is applicable to the facts in the instant case. The tax deed is therefore void on account of the defective description of the land.

(4) It is unnecessary to set out or discuss the testimony in the case tending to show the extent and duration of appellee’s'possession of the lands, for the two-years’ statute of limitation pleaded by them has no application in cases where the tax deed is void on account of a defective description of the. land forfeited for the nonpayment of taxes. This court said in the case of Halliburton v. Brinkley, 135 Ark. 592, that “a tax deed void for insufficient description is not such color of title as will set in motion the two-years’ statute of limitation provided by § 6947, Crawford & Moses’ Digest.”

For the error indicated the decree is reversed, with directions to enter a decree in favor of appellant in accordance with this opinion.

Smith, J.,

(dissenting). The majority say: “ * * * In order to give effect to a tax sale of an undivided share in a particular tract of laud for the nonpayment of taxes thereon, the whole tract should be described upon the taxbooks and on the delinquent list under its legal subdivisions, and the value and the amount of taxes set opposite each share.” In support of this statement of the law the case of King v. Booth, 94 Ark. 306, is cited.

It occurs to the writer that it would not be a task of much difficulty to show that the case cited does not support the language quoted. However, it is unnecessary to do so, for, if the case does support that proposition, then it should be overruled as ignoring positive statutes to the contrary. The language quoted apparently prohibits a joint owner from paying on his undivided interest. If the whole tract must be shown on the delinquent list, then nothing less than the whole tract can be paid on, and the owner of an undivided interest must elect between paying on the entire tract or allowing his undivided interest to go delinquent.

I submit, with all deference, that this requirement is contrary to the universal practice which has always prevailed in all the counties of the State, to permit an owner of an undivided interest to pay on that interest.

If this right does not exist, then we have several statutes which are without meaning. I refer to §§ 10055, 10056, 10103 and 10111, O. & M. Digest. These sections are taken from act No. 114 of the Acts of 1883, page 199. This was an act’entitled “An act to revise and amend the revenue laws of Arkansas,” and, with the amendments to its 226 sections, constitute the general revenue law of this State.

Section 166 of this act (which appears as §§ 10055 and 10056, 0. & M. Digest) expressly recognizes the right ■of a joint tenant to pay on his undivided interest. Section 10055 provides that, in all cases where an owner shall pay the proportionate part of the tax due by him, and the remaining proprietors shall fail to pay on their share, and partition is made of the land, the taxes ‘ ‘ shall be deemed to have been paid on the proportion of said tract set off to the proprietor who paid his proportion of said tax, * * * and the proprietor so paying the tax * * * shall hold the proportion of such tract set off to him * * * free from the residue of the tax; * * * and the proportion of said tract set off to the proprietor who shall not have paid his proportion of said tax, * * * remaining unpaid; shall be charged with said tax, * * * in the same manner as if said partition had been made before said tax # * * had been assessed.”

The section quoted from clearly contemplates that the owner of an undivided interest might, before sale, pay on his undivided interest.

Section 142 of the act of 1883 (which is § 10103, C. & M. Digest) makes provision whereby one may pay on his own interest, even after sale, by way of redemption. It provides: “When any joint tenants, tenants in common, or coparceners shall be entitled to redeem any land * * * sold for taxes, and any person so entitled shall refuse or neglect to join in the application for the certificate of redemption, or from any cause cannot be joined in such application, the clerk of the county court may entertain the application of any one of such persons, or as many as shall join therein, and may make a certificate for the redemption of such portion of said land or lot, or part thereof, as the person making such application shall be'entitled to redeem.”

It tiras clearly appears that it was the intent of the lawmakers to permit a joint owner, either before the sale or after the sale, to pay on his undivided interest.

Section 147 of the act of 1883 (which is § 10111, C. & M. Digest) contemplates the possibility of an undivided interest going delinquent and being sold and remaining unredeemed until the purchaser becomes entitled to a deed. This section provides that “the purchaser, at the sale of lands or lots, or parts thereof, for the taxes, of the interest of any joint tenant, tenants in common or coparcener, or any portion of such interest, shall, on obtaining the deeds from the clerk of the county, hold the same as tenant in common with the other proprietors (or proprietor) of such land 'or lot, and be entitled to all the privileg-es of a tenant in common, until a legal partition of such land or lot, or part thereof, shall be made.”

The case of Bonner v. Board of Directors St. Francis Levee District, 77 Ark. 519, does not conflict with this view. There an owner paid on the south half of the south half of sections of land, which had been assessed as whole sections, leaving the taxes on the north half of the south half of the sections unpaid. The collector accepted, as the taxes due on.the south half of the south half of the sections, one-half of the taxes assessed against the whole, which was, in effect, a reassessment by the collector, as the assessor had assessed the sections as entireties. Judge Battle, for the court, said: “The south halves of sections thirty-four and thirty-five were each assessed as a whole. The value of no particular part was fixed, and from the assessment it could not be ascertained. One part may be worth more than another. For the purposes of taxation they could not be subdivided except by reassessment. The offer of the north half of the south half of the sections, as separate tracts, for sale, was without authority, and the sale was void. ’ ’

The payment on an undivided interest involves no question of reassessment. The owner pays ón his proportionate part of the amount assessed against the whole tract, and not on any particular part. If lie pays, for instance, on an undivided lialf of the whole, tract, then he pays one-half of the assessment, and there is left to be paid, or to be returned delinquent, the taxes on an undivided half of the whole tract.

To deny the -landowner this privilege is to deprive him of a very substantial right, and is to depart from a custom of universal application, and is to ignore three, unambiguous sections -of the statutes.

I therefore dissent, and am authorized to say that Mr. Justice Hart joins me.


author: Humphreys, J.

text:
    Crain v. Word.
    Opinion delivered December 17, 1923.
    Tenancy in common — adverse possession. — Where a eotenant was in adverse possession of land for more than «even years under a claim of ownership, and during that time appropriated the proceeds therefrom to her own use' without interference or demand for an accounting by her cotenants, such conduct was inconsistent with an occupancy by cotenancy, and was sufficient to put other cotenants on notice that her possession w^s adverse.
    Appeal from Cleveland Chancery CourtMike Danaher, special chancellor;
    affirmed.

      George Brown, for appellant.
    The finding- and decree of the court is not supported by the evidence. 122 Ark. 67. The testimony of Mrs. Rebecca Word was incompetent. 151 Ark. 102. Her testimony should have been disregarded. 132 Ark. 403. Mere preponderance is not sufficient to show the execution of a deed. 89 Ark. 42; 158 Ark. 4. The deed was never actually delivered. 98 Ark. 466; 10Ó Ark. 427; 142 Ark. 311. The description of the land was insufficient. 119 Ark. 128. Defendant’s occupancy of the lands was not hostile. 125 Ark. 181. Renting the lands and collecting, the rents, with knowledge of plaintiffs, was not such a hostile act as would put the statute in operation. 99 Ark. 84.

      Woodson Mosley, for appellee.
    The deed was executed, and delivered. 77 Ark. 89; ' 97 Ark. 283; 108 Ark. 53; 110 Ark. 425. The instrument was a deed, and not testamentary. 74 Ark. 104. Plaintiffs are barred by limitations. Ill Ark. 305; 50 Ark. 340. Plaintiffs are barred by laches. 75 Ark. 312; 101 Ark. 230; 103 Ark. 58; 112 Ark. 467; 110 Ark. 24.
   Humphreys, J.

Appellants instituted a joint suit in ejectment, in the circuit court of Cleveland County, against appellees, to recover seven-eighths of 160 acres of land in said county, particularly described in the complaint, alleging that appellants and appellees are the only heirs of Warren Crain, who died intestate in 1890, leaving as a part of his estate said tract of land; that appellee, Martha Word, is a tenant in common with them in said tract, owning an undivided one-eighth interest therein, but that recently she had asserted the ownership to the whole tract and had executed a deed for same to her codefendant and son, Warren Word; that said appellees are in possession thereof, disputing appellants’ rights therein.

Appellees filed an answer admitting the kinship of appellants and appellees to their ancestor, Warren Crain, in the degrees alleged, and that he died intestate, but denying appellants’ ownership to any interest in said land. They pleaded three defenses to the alleged cause of action: limitations, laches, and a deed of conveyance from Warren Crain to Martha Word, which, they alleged, was destroyed, after delivery by the grantor, at the suggestion of his son.

On motion of appellees the cause was transferred, ■over the objection of appellants, to the chancery court of said county, where, upon a trial of the cause, a decree was rendered dismissing the complaint of appellants for the want of equity, and vesting the title to said real estate in appellee, Warren Word, as grantee of his mother, Martha Word. From that decree an appeal has been duly prosecuted to this court for trial de novo.

A large part of the testimony was directed to the issue of whether a deed to the land was executed and delivered by Warren Crain in his lifetime to Martha Word. We shall not attempt to set out the testimony bearing upon this issue, as we have concluded, after, a careful reading thereof, it is insufficient, under the law, to support a finding that the deed, if executed, was delivered. We think, however, the, decree of the chancery court was warranted under the testimony responsive to the issue of limitations. Martha Word and Warren Word, her son, both testified that she moved upon the place with her family in 1892, under claim of ownership, and openly, continuously and adversely occupied same, claiming title thereto, until she conveyed said land to her co-appellee, since which time he has occupied same adversely, claiming title thereto; that, during the time of their respective occupancies, each managed, controlled, repaired, improved, and paid taxes upon the property; that they either cultivated it themselves or rented it to parties who paid them rent, and were never called upon to render an accounting to appellants, although appellants resided in the neighborhood during the entire time; that their title was never questioned by appellants until some time in the year 1920, when the lands became valuable on account of the discovery of oil in the vicinity; that on the 13th day of September, 1921, after the refusal of appellee, Martha Word, to divide the money obtained for oil leases thereon, appellants instituted this suit in ejectment.

The testimony introduced by appellants upon the issue was, in the main, of a negative nature. It was to the effect that they never heard appellees assert or claim title to the land until the last few years. Two witnesses had testified that Warren Word said to them that, after his mother died, the appellants might have the land. His explanation, however, concerning this bit of evidence was that he proposed to them, if they would not disturb his mother in her old age, by claiming the land or bringing suit against ber, be would move off tbe land when sbe died and allow them to take it, but appellants would not entertain bis proposition.

We tbink tbe direct and positive testimony of appellees, to tbe effect that Martba Word beld adverse, open, notorious, and continuous possession of tbe land for more than seven years, under claim of ownership, must be accepted as true. Tbe great length of time sbe occupied tbe land and tbe appropriation of the proceeds therefrom for ber own use, without interference or a demand for an accounting, is a very potent circumstance in support of tbe testimony of herself and son as to tbe character of ber possession and claim. Her management and control of tbe place., under tbe circumstances, was inconsistent with an occupancy by cotenancy, and was sufficient to put appellants upon notice that ber possession and claim was adverse to them.

Tbe decree is therefore affirmed.


text:
    Brewer v. Missouri Pacific Railroad Company.
    Opinion delivered December 24, 1923.
    1. Waters and watercourses — obstruction op drain — damages.— Where a railroad company, in constructing or enlarging its track, dammed up a natural waterway and failed to provide means to drain off the water, this creates a cause of action in favor of any person injured thereby.-
    2. Highways — obstruction—damages.—One who suffers a special or peculiar injury, not in common with the general public, by reason of an obstruction of a public highway, may sue to recover damages bn account of such obstruction or may sue to restrain the continuance of the obstruction.
    3. Highways — obstruction—complaint.—A complaint which alleges that plaintiffs are engaged in road building and entered.into a contract with a road district to improve a highway running parallel with defendant’s railroad, and that defendant, by damming a natural drain, had flooded the highway, so that plaintiffs were unable for a considerable length of time to pursue the work, held to state a cause of action.

      4. Highways — obstruction—damages.—The damages of a road contractor engaged in building a road under contract, due to flooding of a part of the road by obstruction of a natural drain, are not to be measured by the delay in carrying out his contract but by the extra cost of improving the flooded part of the road either by building it up or by draining, and also by the injury to work already constructed by him.
    Appeal from "White Circuit Court; E. D. Robertson, Judge;
    reversed.

      Brwndidge & Neelly, for appellant.
    The filling* up of the ditch and its abandonment by the appellee created a nuisance for which it was liable to any one who was especially injured thereby, regardless of whether he was a landowner or not. 13 R. C. L. 224; 19 N. E. 314; 39 Arle 409; 107 Ark. 69. Where the nuh sanee is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. See 62 Ark. 360; 86 Ark. 406; 92 Ark. 411; 92' Ark. 465; 93 Ark. 46.

      Thos. B. Pryor and Ponder Gibson, for appellee.
    Section 8450 of C: & M. Digest does not apply to this case. See 57 Ark. 387; 57 Ark. 512; 102 Ark. 492. Neither do sections 3662-3-4-5 apply. For merely incidental damages as result from the careful construction and operation of a railroad, the adjacent proprietor cannot recover. 31 Am. Rep. 306; 30 Kan. 590; 40 Am. Rep. 598; 102 111. 64. The opinion on the former appeal settled the law of this case against the claim of'the appellant. The complaint does not allege the breach of any duty owing the plaintiff by the railroad company, and a demurrer should have been sustained.
   McCulloch, C. J.

Appellants instituted this action against appellee to recover damages alleged to have been sustained by reason of the wrongful and negligent act of appellee in obstructing a public road in White County by damming up a natural waterway and failing to drain off the water. The court sustained a demurrer to the complaint, and, appellants failing to plead further, final judgment was rendered dismissing the complaint.

The case was here formerly on appeal (154 Ark. 97) from a judgment in favor of the present appellants, and we reversed the judgment for the reason that the complaint failed to state a cause of action. On the remand of the case, appellants amended their'complaint, and the question now presented is whether a cause of action is stated in the complaint as amended. Originally the allegation in the complaint was that appellee, in enlarging its roadbed, dug a hole, or borrow-pit, and, after digging a ditch to drain the accumulated water, had permitted the ditch to fill up, and we decided that the action of appellee “in digging the ditch, appears to have been voluntary, so far as draining the borrow-pit or hole is concerned, and its failure to continue draining the borrow-pit affords plaintiff no cause of action.” The amendment introduced a new element in the statement of the cause of action. In the complaint, .as amended, it is alleged that the railroad dump was built across a swag, or swale, which was a natural waterway, or drain, and that the appellee failed to leave any openings to allow for the passage of water, and failed to maintain a ditch to carry off the water. It is alleged that appellee formerly dug a ditch to carry off the accumulated water into a creek, but that the ditch had been filled up with the sloughing off of the earth into it, so as to completely fill the ditch and cause the water to stand and become backed up until it was impossible for the water to flow off. This states a case where a railroad company, in constructing or enlarging its track, had dammed up a natural waterway and failed to provide means to drain off the water, and this created a cause of action in favor of any person injured thereby. The question of damming up surface water is not now involved, for, according to the allegations of the complaint, a natural waterway was obstructed. C., R. I. & P. Ry. Co. v. McCutchen, 80 Ark. 235; McAlister v. St. L. I. M. & So. Ry. Co., 107 Ark. 65.

It is also alleged in the complaint that appellants ' are engaged in road work, and. entered into a contract with the road district to improve a road running parallel with the railroad, and that, on account of the obstruction to the road by reason of its being flooded with water, appellants were unable, for a considerable length of time, to pursue the work, and that appellee had failed and refused to dig a ditch to carry off the water. We are of the opinion that this states a cause of action in favor of appellants. One who suffers a special or peculiar injury, not in common with the general public, by reason of an obstruction of a public highway, may sue to recover damages on account of the obstruction, or may maintain a suit for injunction to restrain the continuation of the obstruction. Packet Co. v. Sorrels, 50 Ark. 466; 2 Elliott on Roads and Streets, § 854.

There was a cause of action stated in the complaint, but we do not approve the measure of the damages upon which recovery in part was sought. The allegation in the amended complaint is that appellants “have been damaged by having to lay off their teams from October 31, 1920, to January 1, 1921, in the sum of $2,000.” In another place it is alleged that appellants were damaged by reason of the fact that they could not get across the flooded part of the road so as to complete their work on the other side. Delay in carrying out their contract with the road district was not the proper measure of appellant’s damages, nor could they recover on account of their inability to cross over the flooded part of the road. In that respect they were like any other traveler, and suffered no peculiar injury by reason of being unable to pass along the roadway. The true measure of damages is the extra cost of improving the flooded part of the road by the cheapest method practicable, either by building it up or by draining it, and appellants are entitled to recover this damage, if they were under contract to complete the improvement as alleged in the complaint.

There is another allegation in the complaint, with respect to damages by reason of injury to work already constructed by appellants, and this was sufficient to show damages in that-regard.

For the error of the court in sustaining the demurrer the judgment is reversed, and the cause is remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.