text:
    Brown v. Arkansas Central Power Company.
    Opinion delivered May 23, 1927.
    1. Limitation of actions — maintenance of nuisance. — Complaint for damages sustained for three years from soot, noises and odors from the operation of defendant’s power plant as a continuing wrong, not alleging negligence, held to state a cause of action where it does not appear that the certainty, nature and extent of the damage could be reasonably known at the time of the plant’s construction, so that the statute of limitations was not set in operation as to the injuries until their occurrence.
    2. Limitation of actions — when the statute begins to run.— Where a power plant in its operation was such that damages must necessarily result, and the certainty, nature and extent of the damage can then be reasonably ascertained and estimated, the statute of limitations begins to run at the time of the construction.

      3. Pleading — admission by demurrer. — A demurrer admits the allegations of the complaint.
    4. Limitation of actions — demurrer. — In an action at law the statute of limitations cannot he taken advantage of by demurrer unless the complaint shows that the action is barred.
    5. Pleading — demurrer. — In determining whether a demurrer to a complaint should he sustained, every allegation made therein, together with every inference which is reasonably deducihle therefrom, must he considered.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed.

      Chas. Stan Harley and Robert J. Brown, Jr., for appellant. '

      Elmer Schoggen and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Mehaeey, J.

The complaints in the two cases are substantially the same, and allege the'ownership of property by plaintiffs, describing same, and allege that the defendant is a corporation operating an electric light and street-car system, and that it owns and operates a power plant for generating electricity, located in the adjoining block to and east of plaintiff’s property, just across the street from same.

Continuing, plaintiff states:

“That, in the operation of defendant’s said power plant, coal and slack are burned for the purpose of generating steam, and in the burning of same there is thrown off, emitted and permitted to escape from the smokestack or chimney of said power plant, smoke, soot, cinders, ashes, and other refuse, which is thrown, falls, drops and is blown into and upon, and settles in and upon plaintiff’s said property hereinabove described, to her great injury, stopping her drains, causing her roofs, gutters, downspouts, walls and cornices to rot, blackening and destroying the paint on said houses and on the roofs thereof, soiling and ruining the floors, walls and wallpaper, paints, varnishes and other interior finishes, soiling the clothes of the plaintiff and of her family, friends and guests, killing shrubs, flowers, trees and grass, making her housework heavier and more burdensome, it being impossible to keep her house and houses which she rents in a clean and neat condition, thereby destroying the comfort of plaintiff’s home, and causing her and the members of her family great and unbearable personal annoyance, discomfort and suffering.
“That, at said power plant, the defendant owns, maintains, and uses a traveling crane, which, plaintiff is informed, believes and therefore alleges, is used for the purpose of unloading coal, coal slack, and other fuel from railway cars; that, in the operation of said crane, there is caused a loud, grinding, whirring noise, caused by the grinding of the gears, so plaintiff is informed and therefore alleges, and this noise is loud, penetrating and annoying, said crane being operated any and all hours of the day and night, said noise being so annoying, penetrating and nerve-racking that plaintiff, the members of her family, her tenants and families of said tenants, are unable to sleep, rest or enjoy peace and quiet, and particularly the said crane, when so operated, prevents plaintiff from enjoying the peace, quiet and pleasure of her home.
“That defendant has acquired possession of and is using and has been using for some time past a lot directly across the street from plaintiff’s property hereinabove described, and that on said lot it has piled a large number, and is continually piling and maintaining on said lot a large number of telephone poles, piles, timber, lumber, and other forest products, all or most of same having been treated with creosote, and that from said creosote timbers there is thrown off an overpowering odor of creosote, to such extent that the pleasure and enjoyment of plaintiff’s home and the pleasure and enjoyment of her tenants and their families is materially affected, her comfort, as well as that of the members of her family, her tenants and their families, being thereby destroyed, this odor being more marked during the summer, when it is desirable to use her porches and to keep the windows of her home and tenant houses opened.
“That the injuries and damages hereinabove alleged are not the result of the construction of defendant’s power plant as an original wrong, hut are the result of the manner of operation of said plant by said defendant as a continuing wrong, the injuries and damages being successive. That defendant can reasonably operate its said power plant without causing the injuries and damages hereinabove alleged; that the operation of defendant’s said plant is such as to constitute a nuisance, specially injuring and damaging plaintiff as aforesaid.
“That, on account of the nuisances hereinabove described, she has had to reduce the rentals on her rental houses, has had to expend large sums continually in repairing same, in excess of that which would be necessary on account of the ordinary wear of same; that, even though she has reduced the rentals on her said houses below what a reasonable rental for such houses so situated would be, she has been unable to keep the same rented, although many expressed the desire to rent and occupy the houses, but refused to* do so on account of the nuisances and acts of the defendant above described; that those who have, rented and occupied said houses have-remained only a short time, when they would leave on account of the acts of the defendant hereinabove described and set out.
“That she has been damaged by the acts of the defendant hereinabove set out during the three years immediately prior to the filing of the complaint herein, as follows:
“Loss of rent on rental houses $1,080; damage to houses, including her residence, from cinders, soot, smoke, etc., $3,600; personal annoyance, discomfort and -the loss of the enjoyment of her home $5,000.
“Wherefore plaintiff prays judgment in damages against the defendant for the sum of $9,680, for costs, and all other general and proper relief.”

The defendant filed a motion to require plaintiff to make his complaint more definite and certain, which motion, was granted, and plaintiff then filed the following amendment to his complaint:

“Comes the plaintiff, Mary E. 'Brown, and by leave of the court and in response to defendant’s motion to make more definite and certain, files this her amendment to her complaint.
“That the particular acts and conduct of the defendant in the operation of its plant which are wrongful and cause the operation thereof to constitute a nuisance are as follows:
“The use of soft coal and slack for the purpose of generating steam, in the burning of which there is thrown off and emitted smoke, soot, cinders, ashes and other refuse; permitting to escape from the smokestack or chimney of its said power, plant smoke, soot, cinders, ashes and other refuse, which is thrown, falls, drops and is blown upon plaintiff’s premises as alleged in her original complaint; the burning of'coal as fuel without efficient spark and cinder arresters, cinder traps or screens, and without efficient smoke consumers or smoke-washing equipment; the burning of coal in its furnaces in such manner as does not secure complete combustion; the making of a grinding, whirring, loud, penetrating, nerve-racking noise in the operation of its traveling crane; the use of a lot directly across the street from plaintiff’s property for the purpose of piling and storing telephone poles, piles, timbers, lumber and other forest products treated with creosote, there being thrown off therefrom an overpowering, sickening odor.
“That the particular injuries and damages which are' successive and which flow from the wrongful operation of said plant are those mentioned in the original complaint.
“That the particular wrongful acts of the defendant, resulting in damage to the plaintiff, have been occurring from time to time, and at times, almost continuously during the period of three years immediately prior to the filing of the original complaint herein.
“Wherefore plaintiff prays as in her original complaint. ’ ’

Defendant renewed its motion to make more definite and certain after the amendment to the complaint was filed, and the trial- court treated the motion as a demurrer, and sustained said demurrer, and plaintiffs have refused to plead further, but stood on their complaints, and the court dismissed the complaints, and plaintiffs appealed.

The only question therefore for the consideration of this court is whether the complaint states a cause of action.

The plaintiffs do not allege any negligence, either in the construction or operation of the plant. And as to whether the complaint states a cause of action, we think depends upon the decision of this court in C., R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, L. R. A. 1916E 962. Speaking of the construction in that case, the court said:

“If it is of such a construction as that .damage must necessarily result, and the certainty, nature and extent of this damage may he reasonably estimated and ascertained at the time of its construction, then the damage is original, and there can be but a single recovery, and the statute of limitations against such cause of action is set in motion upon the completion of the obstruction. If it is known merely that damage is probable, or that, even though some damage is certain, the nature and extent of that damage cannot be reasonably known and fairly estimated but would be only speculative and conjectural, then, the statute of limitations is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries.”

Many cases decided by this court are cited in the above case, but we think it unnecessary to refer to any case except this one, because it is the settled law of this State that, if the plant and its operation are such that damage must necessarily result, and the certainty, nature and extent of this damage may be reasonably ascertained and estimated at the time of its construction, the statute began to run when it was constructed.

The demurrer admits the allegations in the complaint, and the allegations are such that, if true, and if not barred by the statute of limitations, they would be sufficient to constitute a cause of'action.

This court has many times decided, that, in actions at law, the statute of limitations cannot be taken advantage of by demurrer unless the complaint shows that the action is barred. Under the ruling of the case of C., R. I. & P. Ry. Co. v. Humphreys, supra, we cannot say that the complaint shows on its face that it is barred, because we cannot say as a matter of law that the construction was such that damage must necessarily result and that the certainty, nature and extent of it may be reasonably ascertained and estimated at the time of construction.

This court has recently said:

“Asa rule, the statute of limitations cannot be taken advantage of by a demurrer to the complaint in an action .at law unless the complaint shows that a sufficient time had elapsed to bar the action and the non-existence of any ground of avoidance.” Flanagan v. Ray, 149 Ark. 411, 232 S. W. 600.

There are many cases holding that the statute of limitations cannot be raised in an action at law by demurrer. It has also been repeatedly held by this court that “in determining whether or not a demurrer to a complaint should be sustained, every allegation made therein, together with every inference which is reasonably deducible therefrom, must be considered.” Gus Blass Co. v. Reinman, 102 Ark. 294, 143 S. W. 1087; Cox v. Smith, 93 Ark. 371, 125 S. W. 437, 137 Am. St. Rep. 89; Moore v. Exelby, 170 Ark. 908, 281 S. W. 671. '

We therefore conclude that the court erred in sustaining the demurrer, and the cause is reversed, and remanded with directions to overrule the demurrer.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Harmon v. McSpadden.
    Opinion delivered May 23, 1927.
    1. Fraudulent conveyances — inadequacy of price. — Inadequacy of price is not of itself sufficient to justify the court in holding a debtor’s conveyance fraudulent.'
    2. Fraudulent conveyances — sufficiency of evidence. — Inadequacy of price together with' other circumstances indicating fraud, held to justify the finding that a debtor’s transfer of property was fraudulent.
    3. Fraudulent conveyances — burden of proof. — 'Fraud in the conveyance of property must be proved and will never be presumed.
    4. Fraudulent conveyances — presumption of fraud. — Indebtedness or insolvency at the time of a conveyance creates a prima fade presumption of fraud.
    5. Fraudulent conveyances — inadequacy of consideration.— - Where the disparity of consideration of a conveyance by a debtor is deliberate with the intention to defraud creditors, the transaction is void as to them, and gross disparity may, under some circumstances, of itself, justify the inference that there was actual fraud.
    Appeal from Independence Chancery Court; L. F. . Reeder, Chancellor;
    affirmed.

      Cole & Poindexter and W. K. R-uddell, for appellant.

      S. M. Bone and 8. M. Casey, for appellee.
   Mehaffy, J.

The appellant, who was • plaintiff below, filed suit in the Independence Chancery Court, alleging that he had theretofore obtained a judgment against T. F. Leonard and Virgie Leonard -in the1 sum of $5,000, which remained unsatisfied, and an execution had been returned nulla bona. He alleged that,.a few days before the judgment was obtained, said T. F. Leonard and Virgie Leonard had fraudulently conveyed to the appellants, W. A. and Leona Harmon, who were defendants below, certain described land. That, in furtherance of said fraudulent conveyance, the said Virgie Leonard permitted T. F. Leonard to take a conveyance of said land from W. L. Calaway, although she was the owner of the indebtedness against said land given by said Calaway, who purchased it, and that no consideraion-passed between her and her 'husband at that time. That the defendants knew about these thingsthat no cash consideration was paid by Iiarmon and wife, but they executed a note for $9,000 for the property, which was done for the purpose of defrauding and cheating plaintiff and preventing him from collecting his judgment.

Plaintiff alleges that, on the same day of the above conveyance to W. A. Harmon and wife, the said T. F. Leonard and Yirgie Leonard transferred and conveyed to the said defendants, W. C. Eobertson and Etta Eobert-son, his wife, certain other property, describing it, and that no cash consideration was paid, but a note executed for $4,500, and that this was done for the fraudulent purpose of assisting T. F'. Leonard and Yirgie Leonard to place the property beyond the reach of execution on the plaintiff’s judgment. He further alleged that T. F. Leonard and Yirgie Leonard had systematically and pre-meditatedly entered into a scheme and plan for the purpose of getting rid of their property and placing it beyond the reach of their creditors, and particularly this plaintiff; alleged that they have .considerable assets, consisting of money and notes, concealed for the purpose of avoiding payment of judgment.

Answer was filed, denying the allegations of the complaint, and thereafter the plaintiff filed an additional pleading, alleging that the defendants, W. A. and Leona Harmon, were indebted to Leonard in the srim of $9,000, and that Eobertson was indebted to Leonard in the sum of $4,000, and that they had disposed of their notes.

There was a'decree by the chancery court in favor of McSpadden against the Harmons, directing them to pay into the court a sufficient sum of money to pay the judgment of McSpadden.

Thereafter the plaintiff filed a supplemental complaint, showing that the Harmons and Eobertson had sold their notes and other property to one W. C. Har-grove of Pittsburg, Texas, and plaintiff asked that Har-grove be required to appear in the court. Plaintiff alleged that the three notes executed by Harmon provided that, upon failure to pay one when due, or interest when due, all three notes became due.

The Leonards and Harmons filed joint answers, and, in the meantime, Hargrove, who claimed to have purchased the notes, brought suit in Texas against the defendants, and it appears that they had never been to Texas before, but they went down and were served with summons between trains in the suit by Hargrove., And they pleaded this suit as a bar. Hargrove was served with a copy of the pleading, but did not appear in this court. A certified copy of the judgment of the Texas District Court, showing a judgment against W. A. Harmon in favor of W. C. Hargrove in the sum of $9,645, together with a copy of the complaint of Hargrove against Harmon, was filed.

S. M. Casey testified that he was present, representing Lawrence McSpadden, and heard W. C. Hargrove testify in the bankrupt court in Texarkana, and that Leonard was also present. That Hargrove testified that he bought the notes from Leonard, August 9, 1924, being three $3,000 notes of W. A. Harmon and a $4,000 note of W. C. Robertson, two $1,000 notes of R. A. Leonard and $1,000 of Independence County scrip, making a total of $16,000, and that he was to pay Leonard $9,500, and that he paid him at that time $3,500, and the balance in six weeks.. That all the payments were in.actual cash, no written evidences of the transaction;, and'Leonard testified to substantially the same facts.

Hargrove lives at Pittsburg, Texas, about 350 miles from Batesville, and stated that he made no investigation before buying the notes; he did not know the people who gave the notes, and later cashed the scrip at par value. He also testified that he had sold the Robertson notes, but still had the Harmon notes.

Mr. Casey also testified that the notes sold to Har-grove and the scrip were worth $16,500, as they were well secured.

Harmon and Robertson both testified in the contempt case in August, 1925, that they had gone to Texas and were sued by Hargrove. Harmon testified that - he bought the property from Leonard and gave three $3,000 notes, and that his wife signed the notes, and that they did not pay any cash. He did not know that Leonard was going to sell the notes, and did not know that he had sold them until later-. That he was sued in Texas on the notes on August 1. Papers were served on him ‘as he went through Mount Pleasant, Texas. That he was only there 15 or 20 minutes; had to change cars there. That he was never in Texas before this time, and was on his way to Dallas to see his sister there, and stayed there about a week. That he had no property in Texas. He swore that he did not know he was going to be served, had no idea that he was. He made no arrangements with Leonard to go down to Texas. That he did not make any defense in. the Texas case, for the suit was for the full amount of the three notes of $3,000 each. That he did not know that Hargrove owned the notes, although he knew that they were sold and that some one in Texas owned them. Did not see anybody down there but the sheriff, who delivered the summons; did not see Har-grove.

McSpadden undertook to collect his judgment by contempt proceedings, and the court below” ordered Leonard to pay the money into court, and, upon his failure to do so, ordered him to jail, and an appeal was taken to this court, and this court held that there was no lien on Leonard’s property, and that the judgment in this case amounted to imprisonment for debt, which was in violation of the Constitution.

The Harmons, Leonards and Robertsons were relatives, and, when Harmon went down to Texas and was sued, he did not know Hargrove and Hargrove did not know him. He was only at the station where he was served 15 or 20 minutes, and there was no explanation how Hargrove knew he was to be there; he had his suit, filed, summons issued and an officer there to serve it when Harmon got off the train. Moreover, the suit was brought in Texas, where Harmon had no property; where there was no possibility of collecting, when he could have foreclosed his mortgage or lien in Independence County and sold the property to pay the debt. Leonard, Robertson and Harmon were brothers-in-law. Leonard sold his property to Harmon, his brother-in-law, received no cash, but received notes secured by the property, and then, instead of making any effort to sell the notes to persons in Arkansas, who knew about the value of the securities, took his notes, together with Independence County scrip, to Pittsburg, Texas, and sold to Hargrove for about 60 per cent, of their value, when the property was ample security fpr the face value of the notes and could have been collected without any difficulty.

The court, after the testimony, entered a decree reciting that W. C. Hargrove had been served with a certified copy of the supplemental complaint; had failed to make any response, and that he had also been served with constructive service as required by law, and that an attorney ad litem had been appointed to defend for him. That the defendants, W. A. Harmon and Leona Harmon, had -been duly served with summons, and had filed answers, and the court further found that the defendant, T. P. Leonard, converted all his property into liquid assets and took same to Texas, and made a fraudulent disposition of all his notes, accounts and county scrip, including the notes of the defendants, Harmon and. Robertson, in an amount of $16,500, selling them for a discount of over 40 per cent, when the same were well secured and worth par value, and that he was later adjudged a bankrupt, and had no property out of which plaintiff’s judgment could be made, except the notes of defendant.

The court further found that ~W. 0. Hargrove participated in the fraudulent sale of said notes and scrip and bought the property at a grossly inadequate price, under such circumstances as would not constitute him an innocent purchaser or a bona fide holder for valué. The court further found that Harmon and Robertson went to Texas and suffered themselves sued there by "W. C. Hargrove, acting in collusion with the defendants, Leonard and Har-grove, for the purpose of defeating plaintiff in the collection of his judgment. And the court also found that the sale by Leonard to Hargrove of his entire assets was fraudulent and made for the purpose of defeating plaintiff in the collection of his judgment. And the court further found that there was sufficient assets turned over to Hargrove by Leonard' to pay him $9,500, the amount he claimed to have paid for the same, and to pay plaintiff’s judgment, with interest and costs. That Hargrove has disposed of some of the property, hut still has $9,000, and the court further found that there was sufficient due from Hargrove to defendant, Harmon, over and above the judgment and costs, to pay Hargrove more than the full amount that he claimed to have paid.

In addition to what the court recited in its decree, it may be said that the proof shows that Hargrove still, according to his own testimony, owes Leonard considerably more than enough to pay appellee’s judgment, and, in fact, Hargrove has a judgment in the Texas court for something over $9,000 against Leonard, so that Leonard still- owes more than $9,000.

It is unnecessary to set out the evidence. After a careful examination of all the evidence in the case, we are of the opinion that the finding of the chancellor was sustained by a preponderance of the evidence.

Appellant argues that this court has held that inadequacy of price is not sufficient to justify the court in holding that the conveyance was fraudulent, and that is true. That would not necessarily constitute had faith, hut thé inadequacy of price, together with all the circumstances indicating fraud in this case, seem to us to justify the finding of the chancellor that the sale was fraudulent, and that Hargrove participated in the fraud.

Appellant contends that fraud must be proved, and will never he presumed, and in this he is correct. The fraud must he proved, hut we think it has not only- been proved in this case, hut the facts proved are inconsistent with any proper motive. Good faith is the basis of all dealing, and every kind of contract, every transaction for the conveyance of property, may he vitiated by fraud. Of course,' an insolvent debtor may sell his property and give good title. He can do so if the transaction is made in good faith, and even inadequacy of price does not necessarily make it fraudulent, but it has many times been held that indebtedness or insolvency at the time of a conveyance creates a prima facie presumption of fraud.

It has been said: “Gross disparity between the consideration and the actual value of the property conveyed is a badge of fraud, and this even in tha case of an execution sale. Under such circumstances it is generally held that equity will in any event subject the property conveyed to the claims of creditors to the extent that the real value exceeds the consideration, for such a conveyance is partially voluntary. If the disparity of consideration is deliberate, with intent to defraud creditors, the transaction is utterly void as to creditors, and gross disparity may, under some circumstances, of itself justify the inference that there was actual fraud, especially where the disparity is occasioned not by the absence, but by the illegality of the consideration. * * * The court will not weigh the value of the goods sold and the price received in very nice scales, but, all circumstances considered, there should be a reasonable and fair proportion between the one and the other.” 12 B. C. L. 478.

In this case Hargrove purchased the property for approximately $7,000 less than its value, when the notes were secured by property that could be sold for a sum sufficient to pay the entire debt.

It is unnecessary to review or discuss the authorities cited by the parties, since we have reached the conclusion that the chancellor’s finding that the conveyance was fraudulent is supported by a preponderance of the evidence, and we have reached the conclusion that the decree of the chancellor is correct, and it is affirmed.


author: Mehaeey, J.

text:
    Kearney v. Walker.
    Opinion delivered May 23, 1927.
    1. Judgment — criminal prosecution as bar. — That a wrongdoer was prosecuted for crime and convicted or acquitted is- no bar to a civil action for the same wrong.
    2. Judgment — acquittal of malicious mischief no bar to suit for damages. — That one killing a dog was prosecuted for malicious mischief and acquitted is no bar to a civil suit for damages for killing the dog, though the court must assess damages in favor of the owners of the dog in the criminal prosecution if defendant is found guilty; the criminal prosecution requiring proof that the act was willful, malicious, or wanton, and requiring' proof beyond reasonable doubt, rather than a preponderance of the evidence, and being under the control of the State rather than the owners.
    3. Damages — when excessive. — In a suit for killing a setter bitch, a verdict for $600 held excessive and reduced* to $400.
    Appeal from PMllips Circuit Court; E. D. Robertson, Judge;
    modified.

      Moore, Walker & Moore, for appellant.
    T'F. G. Dinning, for appellee.
   Mehaeey, J.

The appellees, plaintiffs below, filed suit in the Phillips Circuit Court, alleging that the appellant, who is the defendant in the court below, willfully, maliciously and unlawfully shot and killed a female setter dog which was owned jointly--by the appellees, of the value of $750.

The defendant filed a motion to dismiss, which motion alleged that he had been arrested under § 2511 of Crawford & Moses’ Digest, charged with malicious mischief in killing the dog. That he was tried in the municipal court and acquitted. The motion alleged that, under said section, if appellant had been found guilty, then it would have been mandatory that the court assess damages in said action in favor of the owners (appellees) of the dog. That for this reason the prosecution in the municipal court was a bar to the proceedings in this case. The motion was overruled, and the défendant filed an answer; denied that plaintiffs were the owners of the dog; denied that he willfully, maliciously and unlawfully shot the animal, and denied that they were damaged in sum of $750. Further answering, the defendant alleged that ■ one of the plaintiffs was hunting in the inclosed premises of the defendant, which premises were inclosed by a lawful fence, and that, while he was so hunting in the inclosure with ,a dog, the defendant shot a dog, and alleged that he had a perfect right to do so under and by virtue of § 2511 of Crawford & Moses’ Digest, and that the killing of said dog was not unlawful, and that no cause of action accrued in favor of. plaintiff. He further alleged that the arrest and trial in the municipal court in the city of Helena and his discharge there was a bar to the prosecution of this action.

After the evidence on the part of plaintiff, defendant moved that the court direct the jury to find a verdict in favor of the defendant, and this motion was overruled. The jury returned a verdict for $600, for which amount judgment was entered. Defendant filed his motion for a new trial, which was overruled, and defendant appealed to this court.

There is no dispute about the fact that one of the appellees was in defendant’s inclosure with his dog, hunting; that there was a lawful fence around the same,- and that, while said plaintiff was thus trespassing and had his dog within the inclosure, defendant shot the dog; and there is no dispute about the fact that he was tried in the municipal court and acquitted.

The appellant does not contend that the prosecution for a crime is a bar to a suit for damages against the wrongdoer, a bar to a civil action for damages, but he contends that it is a bar in this case because the court, if he was guilty of malicious mischief, that is, if found guilty by the court, the court would be required to assess the damages in that case, and for that reason he contends that it is a bar. Of course it is unnecessary to cite authorities supporting the. doctrine that a prosecution and either conviction or acquittal for a crime does not bar a civil action for the same wrong." In the criminal action he could not be found guilty unless the proof showed that lie -willfully, maliciously or wantonly killed the dog. It mig'ht be found that he killed the dog’ without the act being willful, malicious or wanton, and he would not be guilty of violating the criminal statute, unless it was shown by the evidence, beyond a reasonable doubt, that he killed the dog willfully, maliciously or wantonly. In a suit for damages for killing the dog it would only have to be shown by a preponderance of the evidence. Any person whose property is damaged by the wrongful conduct of another has the right to maintain- a suit against the wrongdoer for damages, and has a right to control the suit and the trial thereof, but, in a prosecution under the malicious mischief statute, the State prosecutes the suit, and the person whose property is damaged has no right to control the procedure or the suit in any way. We think that the plaintiffs clearly had a right to maintain this suit.

The other question argued by the appellant is that the verdict is excessive. After a careful consideration of all the evidence and an examination of the authorities presented by both parties, we have reached the conclusion that the verdict is excessive.

The witnesses testified-that the dog was of the value of anywhere from $600 to $800, but there was no question asked about the market value, and there seems to be no indication, from the testimony, that any of the witnesses had in mind the market value, and the plaintiff testified that he could have obtained $500 for the dog, but that he had been offered only $250. That if the puppies had been born alive they would have been worth at least $300.

The jury, in fixing the value of the dog, must have fixed some value on the puppies themselves, as the witness had only been offered $250 for his dog. There was some evidence of the market value of the dog, and witness’ statement that he could sell the dog for $500 was also some evidence of its value.

Taking all the evidence together we have concluded that the market value of the dog was not in excess of $400, and,, finding no other error, the judgment will be.reduced to $400, and affirmed for that amount. It is so ordered.


text:
    Heard v. Farmers' Bank of Hardy.
    Opinion delivered May 23, 1927.
    1. Bills and notes — explanation of delay in collection.' — • Whether a bank’s 'delay for nearly five years, and until after the bank president’s death, in an effort to collect a note signed by defendant and by the president of the bank, was due to pendency of a separate suit between the makers, held a question for the jury, where the surviving maker contended the note had been paid.
    2. Bills and notes — interest. — Where a note stipulated for interest “with interest maturity at the rate of 7 per cent, and thereafter until paid at 7 per cent, per annum,” whether it bore interest from date or from maturity, held a question for the jury.
    3. Limitation of actions — jury question. — Whether, under the evidence, there was an agreement for an extension of the note, as affecting the running' of the statute of limitations, held a question for the jury.
    4. Appeal and error — evidence not objected to. — Whether a question was asked of a witness in proper form or not will not be considered on appeal, as it went to the jury in the form in which it was asked without objection.
    5. Trial — improper opening statement. — Refusal to permit an attorney in his opening statement to quote the contents of a statute, and refusal to permit him to prove such statute in his evidence, held proper, as the matter was a question of law to be given in an instruction by the court.
    6. Evidence — self-serving statement. — The court properly refused to permit the maker of a note to prove, in a suit thereon by the payee, that he had said to his attorney before suit that he thought the note bore interest from date, as his unsworn self-serving1 statement was not competent proof of his intention.
    7. Appeal and error — harmless error. — If it was error to permit 'the indorsement on a note to be read over the objection of the maker, who alleged that the action was barred by the statute of limitations, such error was harmless where the maker himself testified that he made the payment of interest at the time it was credited as shown by the indorsement.
    8. BILLS' AND NOTES — PARTIES' defendant. — The payee of a note of joint makers may sue both or either, though one received the money and the other was surety merely.
    9. Bills and notes — sufficiency of proof of payment. — Proof that a deceased bank president who was a joint maker had agreed to pay a note in favor of the bank would not establish that he had paid it, even though other evidence tended to show that he had the note in his possession after maturity, but the question would be for the jury.
    10. Evidence — admissibility op statement. — Refusal of the offer of the maker of a note to prove by witnesses a statement of the payee bank’s deceased president, who was a joint maker thereof, and personally attended to the matter, that the note had been paid, held error, as the testimony “was admissible after the statement was made in the president’s official capacity. /
    11. Evidence — best evidence. — Testimony for the payee bank that it sent to defendant' maker a notice to pay interest if he desired an extension would be inadmissible over objection without proof that plaintiff served notice on defendant to produce the notice.
    12. Evidence — statements dp official dp bank. — Where the president of the bank is authorized to manage a particular business matter, his statements in reference thereto, made in his official capacity, are admissible in suit thereon.
    Appeal from Pulaski' Circuit Court, Third Division; Marvin Harris, Judg’e;
    reversed.

      A. G. Martin and James E. Hogue, for appellant.

      McMillen & Scott and Taylor Roberts, for appellee.
   Mehaeey, J.

This is a suit upon a promissory note for $750 and interest. The complaint alleg’ed that on the 15th day of January, 1919; the appellant executed to appellee his promissory note for $750, due 90 days after date and hearing interest from maturity at the rate of 7 per cent, per annum. That on the 17th day of April, 1919, the appellant paid the sum of $13.31 to the appellee for the purpose of paying the interest on said note to July 15, 1919, which payment was accordingly credited on said note, as -shown on reverse side of same. Judgment was asked for $1,128.07. The following is a copy of the note:

“$750 Little Bock, Ark., Jan. 15,1919.
“Ninety days after date we promise to pay to the order of the Farmers ’ Bank of Hardy seven hundred and fifty- and no/100 dollars at the office of the Union Trust Company, Little Bock, Ark., for value received, with interest maturity at the rate of seven per cent, per annum and thereafter until paid at seven per cent, per annum.
“The makers and. indorsers of this note hereby severally waive- presentment for payment, notice of nonpayment and protest.
‘ ‘ Geo. M. Heard,
“S. P. Turner.”
“Due 4-15-19, Little Rock. Due No. 5747.”
On the reverse side of the note is the following:
“April 17,1919 int. pd. to July 15,1919.”

Defendant filed answer, admitting execution of the note, but denying that he had ever made a payment o*f interest to July 15, 1919; denied that there was anything due on the note, and alleged that the cause of action was barred by the five-year statute of limitations. An amendment was thereafter filed to the complaint, stating that on the 17th day of April, 1919, the appellant paid to the appellee the sum of $13.31 for the purpose of paying interest on said note and extending the maturity thereof to July 15,1919, which payment was .duly credited on said note, as shown on reverse side of same.

A. M. Metcalf, cashier of the Farmers’ Bank of Hardy, testified in substance as follows: That the loan to appéllant was made through the Farmers’ Bank at. Hardy. That the note had not been altered nor changed in any manner; that the proceeds of the loan at the time that it was made were credited upon the books to the credit of George M. Heard; that he should judge that the money remained there something like a. week or ten days; that the appellant checked the money out in a lump sum; and that the note had not been paid; that there had been one interest payment;That the note matured on the 15th day of April, 1919, and that he notified the appellant and told him that the note would mature on such and such a date, and, if he desired an extension, the amount that would be necessary for a ninety-day extension, if lie wanted it, that the amount, including sixteen cents for revenue stamiDS, was $13.31. That he thought that the $13.31 was the interest payment from April 15 to July 15, and that he credited that interest payment on the note.

Here the attorney asked the following question: “Then you tell the jury, in response to that letter or notice that you sent- to Mr. Heard stating that the note would mature April 15, and that, if he wanted to extend the maturity date, it would be $13.15 interest plus sixteen cents revenue stamps, and in response to that he sent you $33:31?” The witness answered, “He did.”

On cross-examination Mr. Metcalf said that the loan was made on the very day of the date of the note. That the note was brought into the bank by Turner and Mr. Heard together. He notified appellant that there was three months’ interest due, by letter, but he did not have a copy of the letter. He just used a regular printed pad. He went out of the bank, December 1, 1919, and went back in 1923. S.. P. Turner died Christmas week, 1922. There had been no administration of the estate of S. P. Turner, but the estate is solvent, and the appellee could have collected the note from the estate of S. P. Turner if it had tried.

H. W. Trigg testified that he was assistant cashier of the People’s Savings Bank, and that the appellant had an account in his bank in January, 1919. He had in his possession the ledger sheet for the business of 1918 and 1919. Appearing thereon, under date of April 21, is a debit transaction of $13.31 to appellant’s account, and the record showed that the check was paid on April 21, 1919.

George M. Heard, the appellant, testified that S. P. Turner came to Little Bock on Monday, the 13th, and was in Little Bock, stopping at appellant’s house for several days; that on the 14th appellant took up the question of the advance to appellant, and it was agreed that they would give this note, and they went to the People’s Bank, and the check was passed to appellant’s credit.Appellant asked Mr. Turner for $750; Mr. Turner owed him more than that. Mr. Turner nwed him money. The note was made in Little Bock, on a blank of the Union Trust Company. Appellant and Turner went to the People’s Bank on tlae 15th, and that money was deposited to appellant’s credit, the amount being- $736.85. He asked Mr. Turner to advance bim $750 on wbat be pwed bim, and Mr. Turner told bim that be did not bave the money, and they agreed to give their note to the bank. The court interrupted here and said,That is not evidence at all — wbat Mr. Turner told him.” He does not know whether Mr. Turner carried the note away or whether it went through the bank here, but the proceeds of it were deposited to his credit at the People’s Savings Bank on that occasion; that he did not pay for the stamps. The amount of the interest shows that the stamps were paid for'by somebody else. Mr, Metcalf was mistaken about appellant being in his bank on the 15th of the month. He was -not there on the 15th of the- month; he was here (in Little Bock); the 15th of the month was the day Brough was inaugurated. The transaction was had on the 14th. It was unusually late, and was after banking hours; that the bank gave him a deposit slip dated the 14th, and held the money and it went to his credit the next morning, the 15th, and the next day the note was given for that amount. He was not at Hardy on the 15th. If anything was placed to his credit, somebody else did it. If the money was placed to his credit in the Bank of Hardy, he never did draw it out. He did not do any business with that bank. He thought that he was paying back interest. He never paid any interest on the note. Turner returned the money to him. His idea was that the note drew interest from date. He got $750. He was asked if he did not tell one of his attorneys, two or three weeks before the case was tried, that the note bore interest from date. The court sustained an objection to this question, and appellant excepted. Turner paid him the difference out of his own pocket; he got $750. Mr. Turner asked him to send the interest, and Turner paid it back to him. He didn’t know that there was ever a stamp put on the note. He sent a check for the interest to the Farmers’ Bank at Hardy. At the time that he sent the check for the interest, he had no thought of renewing the note. He was asked to send tlie money up there, and he did it. He did not ask Mr. Metcalf to make that indorsement on the note.' There was no agreement between him and any of the hank officials for the note to he extended.

W. E. Lenon, president of the People’s Savings Bank of Little Bock, produced the ledger sheet of the account of the appellant- with that hank from November, 1918, to March, 1919. That record showed that a deposit of $736.85 was made by the appellant in the People’s Savings Bank on the 15th of January, 1919. This ledger sheet also showed that checks drawn by the appellant were paid on the 15th of January in sums as follows: $15, $58, $120, $5.60, and $20. Witness did not know where this deposit of $736.85 came from, but the deposit slip showed that it was a check. The People’s Savings Bank had always let appellant have money whenever he asked; he could not recall a time when he had not let appellant have money when he asked for it.

S. S. Crawford stated that he was sheriff of Franklin County from 1918 to 1920. S. P. Turner was at Ozark in summer of 1919 or 1920, and while there he handed witness a note for $750 to the Bank of Hardy, and signed by the appellant and S. P. Turner. Witness had the note in his hands, and looked at it.

June P. Clayton, a lawyer, who lives at Ozark, testified that, some time about the time that this note was given, appellant and S. P. Turner were in Ozark negotiating with a client of the witness for- the purchase of about forty-five thousand dollars’ worth of property. They were introduced to the witness by his client, and after that appellant and Mr. Turner made several trips up there, and would often go to Mr. Clayton’s office. On one occasion Mr. Turner was getting some papers out of his pocket, and threw out this note. He commenced to state what Mr. Turner said at the time, but, without any objection being made by the appellee, the court told him that he could not testify to what Mr. Turner said. Witness said: “Not being able to testify as to what he said, I got the impression that the note was paid from the conversation.” The court sustained an objection to this testimony.

Mr. Heard, upon being recalled, said that the check for $120 which was paid by the People’s Savings Bank on the 15th of January, 1919, was for six months’ interest on a note for $3,000 which he owed the bank.

Here the appellant asked permission of the court to read § 704 of Crawford & Moses’ Digest as evidence to the jury, but permission of the court was refused.

Aubrey Turner, a witness for plaintiff, testified in rebuttal, in substance, as follows: That the note had not been out of the bank since he had it until it was brought to Little Rock to be filed in this suit; that the note was the property of the bank at the time that Mr. Metcalf retired, and that witness succeeded him, and that the note was there all the time after that up to September, 1924. That the note had not been paid. He knew that it had not been paid because no record in the bank showed that it had been paid. It had been an asset of the bank ever since witness had been, connected with it. Pie knew that there was a great deal of private dealings between his father and the appellant. He was asked if the appellant had not performed some expensive and valuable services for his father, and the court sustained an objection to the question.

The witness said that he was one of the children and heirs-at-law of S. P. Turner, and that, if the note was not collected from the appellant, it would have to be paid by the witness, as the note was signed by S. P. Turner and George M. Heard.

When asked why he had not brought suit upon the note before, he' said that appellant had brought suit against his father relative to fees which appellant claimed that his father owed him for some trades in land and property, that suit was pending, and appellant apparently was unwilling to have it tried. He did not push it. That the idea that he had in allowing the note to go unsued on was to get rid of this suit that appellant had made against his father. He brought this suit after the other suit had ended. This suit of the appellant against his father was brought a short time before his father’s death.

A. M. Metcalf, being’ recalled, testified in substance ■as follows: Mr. Metcalf introduced a deposit slip made out by himself, which showed’that $736.85 was deposited in the appellee’s bank to the credit of the appellant on the 16th of January, 1919. That money was drawn out of the bank on the 21st day of January, 1919, five days after the deposit was made.

The appellant moved to exclude this deposit slip as evidence, but the court overruled the motion. He did •not have this check upon which the money was drawn out of the bank. It was sent back to Mr. Heard. Witness testified from his knowledge of a custom and not from his remembrance of the transaction. He said that he would not remember making out any particular slip.

. There was a verdict for the plaintiff. Defendant filed a motion for a new trial, which was overruled, and defendant has appealed to this court. Appellee was the plaintiff below, and the appellant was the defendant below. There seems to have been three trials in the circuit court. The circuit court at one time directed a verdict for the defendant. Plaintiff filed a motion for a new trial, which was afterwards granted, and the case was again tried, submitted to the jury, and the jury failed to agree. It was finally tried before a jury, and it found a verdict for the plaintiff.

This note was given to the Bank of Hardy on January 15, 1919, and matured 90 days after date. About the time of maturity plaintiff contends that it sent a notice to the defendant, in which was stated the amount of interest or the amount necessary to pay to extend the note for 90 days. This this notice was sent,, and that the defendant, mailed a check to the Bank of Hardy for an amount sufficient to pay the interest and revenue stamps. If the note was extended at that time, as contended by the plaintiff, it became dne on July 15, 1919, and it appears that from July 15, 1919, up to about the time this snit was brought there was no effort to collect, no communication between the parties with reference to the note," and the only explanation of this delay on the part of the plaintiff to try to collect the note is the statement that there was a suit brought by the defendant against S. P. Turner, the president of the bank, and that plaintiff wanted to wait until that suit was disposed of before making an effort to collect the note. This, of course, may be true. Whether it is true or not was a question of fact for the jury, and, if submitted to the jury under proper instructions, the jury’s verdict is conclusive.

The testimony is conflicting as to whether the transaction took place in Little Bock or in Hardy. It is unimportant, however, whether the parties were in Little Bock or in Hardy when the note was made, and the testimony as to that is of no importance except as it might throw some light on the question whether, at the time defendant sent the check in April, 1919, there was an extension of the note for 90 days. If there was such an extension, this extension operated as a postponement of the right to bring suit for 90 days, and, if such agreement was made, the cause of action was not barred when suit was begun. If the agreement to extend the note was not made, the cause of action was barred by the statute of limitations. The defendant believes that the note bore interest from date instead of maturity, and testifies that he did not intend to pay interest except what was due up to that time, believing, as he did, that it bore interest from date, and that he did not intend that the note should be extended.

The cashier of the Bank of Hardy testified that he wrote the defendant, stating to him that the note would mature April 15, and that, if he wanted to extend the maturity date, it would require $13.15 interest plus 16e revenue stamps, and in response to this letter the defendant sent a check for $13.31. It also appears from the evidence that, while the note was for $750, the deposit made in the People's Savings Bank on the date the note was made was for $736.85, indicating that the 90 days’ interest was deducted from the note at the time it was made, and that it therefore bore interest from maturity instead of from date. Whether the note bore interest from maturity or from date, and also whether there was an agreement to extend the note, were questions of fact to be determined by the jury.

It is earnestly contended by the appellant thát there is no evidence that the defendant paid the interest for the purpose of extending the maturity of the note to the 15th of July, and he argues that the nearest approach to evidence on this question is an improper question by attorney for the plaintiff and the witness’ answer to said question. It appears, however, from an examination of the transcript, that the defendant did not object to the question, and the question was asked and the witness answered it without objection on the part of the defendant. Therefore, whether asked in the proper form or not, it went to the jury in the form in which it was asked, without objection. And, while the evidence appears to be very slight, and while there are a number of circumstances that tend to corroborate the defendant, yet, as we have said, these were questions for the jury.

The defendant testifies that the transaction was in Little Bock. The plaintiff’s witnesses testify that it took place in Hardy, and yet the note was on a blank form of the Union Trust Company of Little Bock, and also, on the very day the note was given, the amount was deposited to defendant’s-credit in the People’s Savings Bank in Little Bock. It is also contended by the appellant that the court erred in not permitting the defendant’s attorney, in his opening statement, to state the contents'of part of § 704 of Crawford & Moses’ Digest, and erred in not permitting defendant to, prove this statute or part of this statute to the jury. The circuit court was correct, in holding that this was not proper to be proved in evi-deuce, but that that was a question of law to be given to the jury as an instruction from the court.

It is also contended by tlie appellant that the court erred in not permitting him to prove that he had stated to his attorney, some time before the trial, that he thought the note bore interest from date. And, as a reason for urging this as proper evidence, he states that, as to whether there was an extension of the note, was a question of intention on the part of the defendant. The defendant had a right to prove his intention, but he would have to prove it by competent testimony. The testimony offered was not competent. It was a declaration made by the defendant out of court, and it has been said:

‘ ‘A witness is not allowed to testify as to an unsworn statement made by himself on a former occasion, and declarations of a witness out of court, inconsistent with his testimony, are not admissible to prove the truth op facts stated but only for purposes of impeachment.” 22 C. J. 206.

Again it has been said:

“It is a well established general rule that a statement of a party, whether oral or written, which is of a self-serving nature, is not admissible in evidence in his favor. While such statements are usually made because the declarant is for some reason interested, at the time, in having the fact supposed or believed to be as stated by him, the element of present interest is”not essential, for it has been considered that the rule applies with full force, notwithstanding the fact that the declarant was disinterested at the time when the statement was made. Such declarations are not rendered admissible by having been part of a conversation or correspondence with the declarant’s witness, or with a person sent by the opposite party, or with the adverse party himself, or his agent; by having been brought to the attention of the other party or his agent and commented upon by him; by having been entered up.on a bóok of account or other record; or by being brought out on cross-examination. Such declarations are equally inadmissible when offered by the declarant’s representatives, and the rule of exclusion also applies when such declarations are offered in evidence by third persons on their own behalf.” 22 O. J. 220.

The appellant contends that the court erred in permitting- the indorsement on the note to be read, over his objection, but whether that was proper or improper is immaterial, because the defendant himself testified that he made the payment of interest at the time it was credited on the note. There was no effort to show that there was any indication on the note that this credit had been made on a later date, or that any erasures or changes in the note hadheen made at a later date, or that there was anything suspicious about the manner or appearance of any of these things. The defendant himself testified that he sent the check about the time the note matured, that he got the amount of it from the record he had, but whether he got it from that or whether the cashier wrote to him, as a matter of fact, he did pay the interest at that time.

Turner and the defendant were joint makers of the note, and the holder of the note would have a right to sue both or either, and the fact that one of them got the money or that one of them was surety would not be a defense when sued by the holder of the note. As between Turner and Heard, the evidence offered as to the agreement between them would be proper. It is true that the contention of appellant was that Turner had paid the note, but even the offer to prove that Turner had agreed to pay it would not be a defense, and if he could prove that Turner had agreed to pay the note it would not be a defense when the defendant was sued. Nor would this proof, if made, have shown Turner had actually paid the note. Defendant was permitted to prove, and did prove, that Turner had the note in. his possession some time in the summer of 1919 or 3920, but this evidence was before the jury, and the jury evidently considered it.

The defendant offered to prove by witnesses the statements of the president of the bank that the note had been paid. We think, under the circumstances and evidence in this case, that this evidence should have been admitted. The only disputed points in the case that are material are, first, whether the note was extended, and second, whether it was paid. The plaintiff proved that the bank had sent Heard a notice which stated, in effect, if he wanted to extend the time of payment for 90 days, to send $13.31, and that Heard sent that amount of money. This testimony was admitted without objection, but, if objection had been made to it, it could not have been introduced unless the plaintiff had served notice on the defendant to produce the letter. And this is the only testimony introduced tending to show that there was an agreement to extend the note 90 days, and the defendant swears positively that he never made any such agreement.

It has been said: “Bjit to exclude relevant evidence by any positive and arbitrary rule must be not only absurd in a scientific view, but, what is worse, frequently productive of absolute injustice. It may safely be laid down that the less the process of inquiry is fettered by rules and restraints, founded on supposed considerations of policy and convenience, the more certain and efficacious will it be in its operation. Formerly the very means devised for the discovery of truth and advancement of justice were not unfrequently perverted to- the purposes of injustice, and made the instruments of the most grievous and cruel oppression. * * * The admission of every light which reason and experience can supply for the discovery of truth, and the rejection of that only which serves not to guide but to bewilder and mislead, is the great principle that ought to be the foundation of every system of evidence. Common experience rather than technical rules should be adopted as the test. Mercantile and industrial life, producing, as they do, nearly all the transactions of men that come before the courts of law and equity, are essentially practical. * * * The courts need not discredit what the common experience of mankind relies upon. Judge Cooley once said that ‘courts would justly be the subject of ridicule if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon.’ Lastly, whenever there is any serious doubt in the law as to whether certain proof is or is not permissible, a safe rule to pursue is to permit the testimony to go to the jury.” 10 R. C. L. 861.

The proof shows that the bank, the plaintiff in the case, was a domestic corporation, that Turner was its president, and that all the dealings had with reference to the note or with the bank by the defendant were made through the president. He loaned the-money to Heard for the bank, and his declaration that the bank had received payment should have been admitted.

This court has said: “Wooten, who was the president when the note and mortgage were executed by Kirby to Maynor, testified that he heard Maynor tell Kirby that he would give .him credits later on in the fall in settlement of what was owed to him (Kirby), and directing Kirby to make up a list. This was competent testimony, and tended to show that, at the time the note and mortgage were executed, Maynor acknowledged that Kirby had an unsettled account against him for which Kirby was entitled to credit.” Kirby v. Wooten, 132 Ark. 441, 201 S. W. 115. See also Yarbrough v. Arnold, 20 Ark. 597.

Where á president of a corporation is authorized to manage a particular business matter, his statements in reference thereto are admissible. See Lowe v. Yolo County Consolidated Water Co., 108 Pac. 297, 157 Cal. 503; Holmes v. Turner-Falls Co., 6 L. R. A. 283, 150 Mass. 535, 23 N. E. 305.

It must be remembered that Turner was not only the president of the bank, but that he personally attended to this matter. And it was about this particular transaction that defendant asked permission to prove his declarations. In addition to that, he had the note in his possession. Speaking of declarations of officers of corporations, the Minnesota court has said: ,

“Such statements are admissible as against the corporation only when made in the course of the perform-anee of their authorized duties as agents. So that the statements constitute a part of their conduct as agents — ■ a part of the res gestae.” Longman v. Anderson, 160 Minn 15, 199 N. W. 732.

The Texas court has said: “According to the greater weight of authorities ’ the same rule is applied to the competency of the declarations of executive officers, managers and general agents of a corporation, when such declarations are shown to be used against the corporations they represent. The apparent scope of their authority is broader than in cases of special or ordinary agents, but their declarations, to be competent as evidence against the corporation represented by them, must, nevertheless, be made while' acting within the scope of such apparent authority and with the connection of the performance of some duty to which said declarations are pertinent.” Jones on Evidence, vol. 2, 1800. Southern Surety Co. v. Nalle & Co. (Tex. Conn. App.), 242 S. W. 197.

Of course the declaration must be made in the agent’s official capacity. This feature of it was not sufficiently developed to know whether he would make it in his official capacity or not. One witness stated that he was acting individually, but we think the defendant should have the right to show that he was the president of the corporation, that he attended to this particular, transaction, and be permitted to show whether or not the declaration was made as president of the corporation. Turner, after the time when it was alleged he made the declaration, died, and of course could not be had as a -witness. It is said by many authorities that testimony as to the declaration of deceased persons is the weakest kind of testimony. But its weight would be for the jury, and, in view of the facts that the note was in Turner’s possession, that the bank held this note all these years without making any effort to collect, and the undisputed proof that the money was gotten by Turner to pay Heard a debt or a portion of a debt that he owed him, we think that this testimony should have been admitted, and, for the error in excluding the above testimony, the case is reversed, and remanded for a new trial.


author: MoHaNey, J.

text:
    Gerard B. Lambert Company v. Newton.
    Opinion delivered May 23, 1927.
    1. TRIAL — ADMISSIBILITY OP LETTER — GENERAL OBJECTION. — In an action for breach of a contract for employment for a period of one year, the employer’s letter tending to prove the contract for one year was admissible over a general objection, though parts of the letter may have been irrelevant.
    2. Witnesses — cross-examination. — In an action against an employer for breach of a contract of hiring, the employee, on being cross-examined as to a letter by which he was discharged, was entitled to have the letter read to the jury.
    3. Appeal and error — harmless error. — Admitting evidence which is more favorable to appellant than to appellee is not prejudicial to the former.
    4. Trial — oral instructions. — An óral statement by the court to the jury as to' the nature of the suit as set out in the complaint, containing no directions to the jury, held not an instruction within the Constitution, art. 7, § 23, requiring judges to reduce their charge or instructions to writing on request of either party.
    5. Master and servant — breach of employment — damages. — In an action for 'breach of a contract of employment, the verdict assessing damages held not contrary to the law and evidence.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Moore, Walker & Moore, for appellant.

      W. G. Dimming, for appellee.
   MoHaNey, J.

This appeal is prosecuted to reverse a judgment of the Phillips Circuit Court in appellee’s favor for $1,999.06 for the alleged breach of a contract of employment by appellant of appellee as manager of its plantations at Lambrook, Phillips County, from March 1, 1925, to February 28, 1926, at a salary of $350 per month. Whether the contract was for the term of one year or from month to- month was a disputed question of fact, which was submitted to the jury on instructions that are not questioned. Appellant was discharged August 15, 1925, and his testimony tended to prove that he was unable to get other employment until January 12,1926, and then at a reduced salary of $200 per month.

Two questions are raised regarding the admissibility of testimony, one being a letter written by Gerard B. Lambert, president of appellant company, as follows:

“St. Louis, Mo., Feb. 10, 1925.
“Mr. A. G. Newton,
Elaine, Arkansas.
“Dear sir: I am very happy to be able to write you this letter and at last to know something definite about my plans for the coming year. I have now arranged my finances so that we can go ahead on the 1925 crop in a normal way. The only requirement is that I must get the greatest possible efficiency out of the operations, and must put out the least amount of money that I can to get a reasonable return.
“As I find my affairs demand an increasing amount of my time, and so that you may have an opportunity to discuss policies, without awaiting for a trip from me, I have arranged for Mr. Day to represent me and to go down to see you about once a month so tliat you may talk things over. He will have complete authority, and I know will be of material assistance. I have found Mr. Day’s .judgment very sound on all matters relating to that country, and his one object will be to work with you to get the best results out of the place. By this method all matters which are undetermined will not have to go long before being decided upon.
“I have never started the season feeling as well about the place as this year, as I know I can surely have funds to go through the year, and I feel an increasing confidence in your ability to operate things on an efficient basis. I understand that you have things in wonderful shape and that you have plenty of seed for the crop. Last year I made a serious mistake in urging you to plant ‘Salsbury’ seed, and I imagine, of course, that what you have saved is ‘Express.’
“I can not come down on this trip, but T am hoping I will be there in less than a month, and we can all have a nice general conversation on our plans for the season.
“In starting off this new year, because, as yon know, on our books our year runs from March 1 to March 1,1 have only one Suggestion to make to guide you in the work, because in general your management has been very satisfactory. This suggestion is that you train yourself to give your greatest attention to those things which really count in the final bringing in of the crop, which is, after all, our source of revenue, and that you do not permit yourself to become distressed, annoyed or diverted by things which are really unimportant as related to that crop. I say this to you in a friendly effort to help what I think is your only weakness, and because, in the last five years, the development of that point of view has been the best thing I have been able to achieve for myself. When details come up for your consideration throughout the day, try to weigh their importance, and put your attention on the ones that will really count, even if some of the small ones are neglected. Do not let your personal feeling force you to give attention to unimportant things, and do not let what other people may say affect your judgment on the main.object, which is, after' all, getting out a profitable crop. As you grow older, yon will discover1 that the successful men in business have developed this quality, and that, while the small men 'seem annoyed that the successful executive will not give the attention he wishes to details, somehow the bigger man gets results and succeeds. In other words, be as calm as possible about your work, and sit down occasionally and think over the day, and decide whether or not you have placed your time on the important things.
“This suggestion is sent in a- spirit of friendly helpfulness and of a result of things I have learned myself, and both Mr. Day and I feel that we are all set and ready to go for a fine year, and we will give you support in every possible way.
“Until I see yon, just plug along, getting your things ready as well as possible for the coming crop.
“Yours truly, Gerard B. Lambert.”

Appellant made a general objection to its introduction, and it is now urged as reversible error on the ground that it bad no bearing on tTie case. We think the letter was proper and competent evidence and tended to prove that appellee was employed for the year, the vital issue in the case. Again, it is urged that certain parts of the letter are incompetent and irrelevant, and that, upon general objection, appellee should' have been permitted to' read only the competent parts. Counsel did not point out to the trial court the irrelevant parts, nor have they done so here. Moreover, the rule is to the contrary, and is correctly stated in the recent case of Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S. W. 681, where the court said that, since the whole of the witness’ statement was objected to, and part of it was competent, and no special objection was made to that part of same being incompetent as hearsay, the court committed no error in overruling the general objection to the entire statement.” Citing St. L. I. M. & S. R. Co. v. Stroud, 67 Ark. 112, 56 S. W. 870; Redmond v. Hudson, 124 Ark. 26, 186 S. W. 312. There was no error in admitting the letter.

During the cross-examination of appellee he was being questioned regarding a certain letter written by him to Mr. Lambert, dated August 15, the day he was discharged, and counsel for appellee asked that the letter as a whole be read to the jury, and the court required this to be done.' He had not been asked about this letter on his direct examination, and if he was to be cross-examined about it he was likewise entitled to have the letter read. However, we can see no possible prejudice to appellant, as it appears to be more favorable to appellant than to appellee. It was in the discretion of the court to require the letter read after it had been brought in on cross-examination, and no abuse of such discretion is shown.

It is next urged that the court erred in stating orally to the jury what the suit was about, as set out in the complaint. Appellant calls it an instruction, but it is not an instruction in tlie real meaning of that term. It merely stated the contentions of the appellee as stated in his complaint. It would have been entirely-proper for the court to have followed such statement with the contentions of appellant as set out in the answer, and no doubt the court would have done this if so requested by counsel, but this was not done. We do not deem it neces-' sary to set this statement out. It was not an instruction either upon the law or the facts. It contained no directions to the jury, and we do not think it was in violation of art. 7, § 23, of the Constitution, which provides:

“Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.”

But there was no request by counsel that this so-called instruction be reduced to writing. The objection was general, and is insufficient to amount to a demand. The demand must be made. Nat. Lbr. Co. v. Snell, 47 Ark. 407, 1 S. W. 708; Mazzia v. State, 51 Ark. 177, 10 S. W. 257; Excelsior Mfg. Co. v. Owens, 58 Ark. 556, 25 S. W. 868.;

Lastly, it is said that the verdict is contrary to the law and the evidence, in that it cannot be determined how the jury arrived at the sum of $1,999.06. This contention is not sound, as we think the jury allowed 'the plaintiff five months’ salary from August 15 to January 15 at $350, one and one-half months at $150 from January 15 to February 28 (being the loss per month for this time), or a total of $1,975, to which it added $24.06, the amount appellant offered to confess judgment for on other indebtedness, making $1,999.0.6.

We find-no error, and the judgment is affirmed.


author: McHaNey, J.

text:
    Bush v. Martineau.
    Opinion delivered May 23, 1927.
    Constitutional law — powers op legislatuRE. — Since the Constitution is not an enabling but a restraining act, the Legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas.
    Constitutional law — validity op statute. — An act of the Legislature is presumed to be constitutional, and will not be held otherwise, unless clearly incompatible with the Constitution, and all doubt on the question must be resolved in favor of the act.
    State — issuance, of notes to construct roads. — Acts 1927, No. 11, authorizing the State to borrow money for the construction of any roads, and to issue State highway notes therefor secured by certain revenues, is not contrary to Constitution, art. 16, § 1, providing that the State shall not loan its credit for any purpose.
    Constitutional law — validity op statute. — The courts cannot strike down an enactment of the Législature on the ground that it is contrary to the supposed spirit of the Constitution, but can do so only when contrary to some prohibition made expressly or by necessary implication.
    Highways- — creation of permanent state offices. — The fact that the State highway acts (Acts 1927, Nos. 11, 80) do not limit the terms of the offices created, does not render them contrary to Constitution, art. 19, § 9, providing that, the General Assembly shall have no power to create any permanent offices not expressly provided for by the Constitution.
    State — notes as obligations of state. — Under Acts 1927, No. 11, § 5, providing that the State shall -borrow the necessary amount of money for the construction of new roads, and issue State highway notes for the amount borrowed, to be secured by a pledge of certain revenues, the State may pledge full faith and credit to the payment of the notes and make them direct obligations.
    7. State — place of payment of notes. — Though Acts 1927, No. 11, providing for the issuance of Statq. highway notes to provide for construction of new ro-ads,'provides that the notes “may” be made payable in St. Louis or Chicago, such notes may be made payable in New York; the word “may” being used in a permissive sense and not a mandatory one.
    8. SÍTATE — PAYMENT OF DEBTS OF ROAD districts. — The State highway act (Acts 1927, No. 11), which provides for payment by the State of existing bonded indebtedness of road districts, is not contrary to Constitution, art. 12, § 12, providing that the State - shall never assume or pay the debt of any town, city or other corporation, as road .. districts are not corporations within this section.
    9. Statutes — presumption in favor of enrolled statute. — Where a statute is enrolled, signed by the Governor, and deposited with the Secretary of State, the court will conclusively presume that it was validly enacted under Constitution, art. 5, § 22, unless the contrary affirmatively appears from the records of the General Assembly-
    Appeal from Pulaski Cliancery Court; Frank II. Boclge, Chancellor;
    affirmed.

      R. E. Wiley, for appellant.

      Coleman & Riddick, for appellee.
   McHaNey, J.

Appellant instituted this action in the Pulaski Chancery Court, challenging the constitutionality of acts Nos. 11 and 80 of the Acts of 1927, approved February 4 and March 3, 1927, respectively, commonly referred to, as the State Highway Acts. A demurrer to the complaint was sustained, and, as appellant declined to plead further, his complaint was dismissed for want of equity, from which comes this appeal.

The title of act No. 11 is “An act to amend act No. 5 of the extraordinary session of the Forty-fourth General Assembly of the State of Arkansas, approved October 10, 1923,” and § 1 of the act declares a definite policy on the part of the State with reference to "its State highway system in this language: “It is-hereby declared to be the policy -of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined herein.” The original act, of which this is amendatory, the Harrelson Act, has been before this court for consideration and has been sustained in the following cases: Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24; Cone v. Hope-Fulton-Emmett Road Imp. Dist., 169 Ark. 1032, 227 S. W. 544.

Before proceeding (-o a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construction announced and adhered to throughout the history of this court. First, that the Constitution of this State is not ^a grant of enumerated powers to the Legislature, not an enabling, hut a restraining act (Straub v. Gordon, 27 Ark. 629), and that the Legislature may rightfully exercise its powers subject only tó the limitations and restrictions of the Constitution of the United States and of the State of Arkansas. St. L. I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; Butler v. Board, etc., 99 Ark. 100, 137 S. W. 251. In other words, as was said in McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174: “It is not to he doubted that the Legislature has- the power to make the written laws of the State, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.” Second, that an act of the Legislature is presumed to be cohstitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act. State v. Ashley, 1 Ark. 552; Eason v. State, 11 Ark. 481; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; Sallee v. Dalton, 138 Ark. 549, 213 S. W. 762; and in Standard Oil Co. of La. v. Brodie, 153 Ark. 114, 239 S. W. 753, this court quoted the language of the Supreme Court of the U. S. in Hooper v. California, 355 U. S. 657, 35 S. Ct. 207, 39 L. ed. 297, that “the elementary-rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality. ’ ’ There are a great many decisions of this court announcing and following these rules under a great variety of circumstances, and we do not therefore cite or quote from more of them.

Bearing in mind these elementary rules of construction, let us now take up the specific objections to these acts pointed out .by appellant as rendering the acts unconstitutional.

It is urged that, since-act No. II provides for the issuance by the State of interest-bearing evidences of indebtedness, it is- in violation of § 1 of art. 16 of the Constitution, which reads as follows:

/‘Neither the State nor any city, comity, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip/’

We will not quote the acts questioned in full, but only such parts as appear to be pertinent. Section 4 of act 11 is as follows:

“It shall be the duty of the Commission to-construct the roads in the State highwajr system which are not now constructed, the work of construction to 'be pushed as rapidly as funds are available for that purpose. The Commission shall begin the work of construction in those counties in which the roads embraced in the State highway system have not been constructed by improvement •districts, or in which only a small portion of such roads have been constructed, and shall continue construction work in such counties until the completed roads in each county in the State have been brought to a parity, after which construction work shall be distributed throughout the counties so as to maintain the parity, as far as practicable.”

Section 5, after making it the duty of the State Highway Commission to make certain allotments for the construction of new roads for. the next four years, provides :

“To provide the funds to meet this requirement, the State shall borrow each year whatever amount may be necessary, in addition to the money derived from automobile .licenses and fees, gasoline and motor-oil taxes, and from Federal aid, on such terms as to interest and maturities, and subject to the limitations hereinafter set out, as may be determined to be for the best interest of the State highway system, and to issue State higirway notes for. the amount borrowed, to be secured by a pledge of the revenues derived from gasoline, motor-oil and automobile taxes, and to pledge said revenues, or so much thereof as may be necessary, for the payment of said notes,” etc.
“Such notes issued by the State shall be known as State highway notes, shall be signed by the Governor, the State Treasurer and the State Highway Commissioner, and attested by the Secretary of State, and shall state in the face of said note that the revenues derived from gasoline, ' motor-oil and automobile taxes are pledged for the payment of such notes.”

The above section of the Constitution appears quite simple. The first thing prohibited therein is the lending of its credit by the State, city, etc., for any purpose. It is not proposed in the act under consideration that the State shall “loan its credit,” but only use its credit. The second prohibition in said section leaves the State out of the thing prohibited altogether, and lays the restraining hand only on “any county, city, town or municipality” in the issuance of interest-bearing evidences of indebt- • edness, except to cover the then existing indebtedness. The State was not left out of this second prohibition or limitation by inadvertence, oversight or mistake, but by intention or design. Hays v. McDaniel, State Treasurer, 130 Ark. 52, 196 S. W. 934.

The third prohibition in this section of the Constitution applies to the State alone, that is, that it “shall never issue any interest-bearing treasury warrants or scrip.” This third prohibition manifestly can have no application to this case, for it is not proposed to issue any interest-bearing treasury warrants or scrip.

This court has held directly contrary to this contention of appellant. In Jobe v. Urquhart, 102 Ark. 470, 143 S. W. 123, Ann. Cas. 1914A, 353, it was said:

“The General Assembly has plenary powers to contract for and create interest-bearing indebtedness on the part of the State, except to issue interest-bearing treasury warrants or scrip.”

This case was cited with approval in Hays v. McDaniel, State Treasurer, supra, where it was again held that the Legislature could authorize the issuance of interest-bearing evidences of indebtedness for its purposes, and we do not think the court intended to limit the power of the Legislature in this regard to the particular “purpose” then under consideration. If the Legislature has “plenary power to contract for and create interest-bearing indebtedness,” when “the authority to bind the State to the payment of interest on her indebtedness” is plainly expressed in the act, as held in Jobe v. Urquhart, supra, then it would appear to be certain that it could validly exercise such power for the building of roads, when the act expressly declares it to be the policy or “purpose” of the State so to do. Appellant concedes on this point that these decisions are contrary to his contention, and that we should reconsider the rule in Hays v. McDaniel, with which we do not agree, and further says that the act in question is violative of the spirit of this section of the Constitution. But we cannot strike down a solemn enactment of the Legislature on any supposed spirit of the Constitution. As before stated, we can only do so when the power is expressly, or by necessary implication, prohibited.

In 1 Cooley’s Constitutional Limitations (8th ed.) page 351, the author says:

“Nor are the courts at liberty to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words, when the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature. We cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not. even mentioned in the instrument.”

We therefore hold this point not well taken.

It is next urged that the acts create permanent State offices, in violation of § 9, art. 19, which provides that “the General Assembly shall have no power to create any permanent State office not expressly provided for by this Constitution,” for the reason, as stated, that the acts do not limit the time' of the existence of the offices created. On this point appellant is again precluded by the former decisions of this court. Greer v. Merchants’ etc., Bank, 114 Ark. 212, 169 S. W. 802: Fort Smith Dist. of Sebastian Co. v. Eberle, 125 Ark. 350, 188 S. W. 821.

The next contention is that the form of the notes proposed to be issued by the State is without authority in the act itself (act 11), in that they are made direct obligations of the State, for which the full faith and credit of the State are pledged. The notes are to contain-this clause: “The State of Arkansas also covenants that this and all other obligations of this series will be paid promptly as they mature, and to their payment the full faith and credit of the State are irrevocably, pledged.”

Section 5 of the act, heretofore set out, provides that the State shall borrow the money and that the State shall issue the notes. There is no provision for 'the Highway Commission to borrow the money and issue its notes, although the commission and the note board are agencies of the State for the’ purpose, for the language of the act is “to provide the funds to meet this requirement, the State shall borrow each year whatever amount may be necessary,” etc. It is difficult to perceive why the State’s full faith and credit should not be pledged, if it is to borrow any money. The fact that it pledges the funds arising from the tax on gas, oil and motor vehicles does not relieve the State otherwise. The State is not and should not be in any different or more favorable situation in this regard than an individual. A farmer who borrows money from his hank and mortgages his crop to secure the payment of his note is not relieved of payment in the event of crop failure. All the faith. and credit be has, in addition to tlie crop, are pledged to the payment of his' debt. Necessarily it must be so with the State. Even if the notes were made payable only out of this particular fund, yet if the fund failed, or was insufficient, there would-be a moral, if not a legal, obliga-gation on the State to pay. The only difference between the obligations of an individual and the State is that the individual may be compelled to pay in a civil action, whereas the State can never be sued in any of her courts, even though morally and legally obligated to pay. There can be no just reason in law why the notes should not contain this clause, and we therefore hold that these notes, when issued, will be the direct obligations of the State, for the payment of which the full faith and credit of the State are pledg-ed.

There is no merit to the contention that, since the act provides that the notes “may” be made payable in St. Louis or Chicago, they cannot be made payable in New York, as the form of the notes provides. The word “may” is here used in its permissive-sense and nob in a mandatory sense, such as is imported in the words “must” or “shall,” unless it plainly appears “that the Legislature intended to impose a duty and not merely a privilege or discretionary power, and that the public or third persons are interested and have a claim of right to have the power exercised.” Little River Co. v. Buron, 165 Ark. 535, 265 S. W. 61; Washington Co. v. Davis, 162 Ark. 335, 258 S. W. 324. The legislative intent was to vest in the board the discretionary power of making the notes payable wherever sold, and St. Louis and Chicago were mentioned in the belief that they might be sold at one or both -of these places.

It is next contended that, because act No. 11 provides for the payment, in whole or in part, of the existing bonded indebtedness by the several road districts, it violates § 12 of art. 12 of the Constitution, which is as follows:

“Except as herein otherwise provided, the State shall never assume or pay" the debt or liability of any county, town, city or other corporation whatever, or any part thereof, unless such debt or liability shall have been created to repel invasion, suppress insurrection or to provide for the public welfare and defense. Nor shall the indebtedness of any corporation to the State ever be released or in any manner discharged save by payment into the public treasury.”

The limitation here provided is that “the State shall never assume or pay the debt or liability of any county, town, city of other corporation.” Unless it can be said that a road improvement district is a “corporation” within the meaning’ of this section, it is plainly manifest that this section of the Constitution can have no application. Counties, towns and cities are corporations, and we are of the opinion that the words “or other corporation” has reference to the same kind of organization referred to in § 2 of art. 12 which prohibits the Legislature from passing any special act conferring corporate powers. Concerning this latter section, in Carson v. St. Frances Levee Dist., 59 Ark. 535, 27 S. W. 590, this court said:

“Giving corporate capacity to certain agencies in the administration of civil government is not the creation of such an organization as was sought to be prohibited by article 12 of the Constitution. The mere fact that the organizations (quasi corporations) are declared in the statutes to be bodies corporate has little weight. We look behind the name for the named. Its character, its relations and its functions determine its position, and not the mere title under which it passes.”

Continuing, the court said: “The principle announced in these decisions, and the numerous authorities cited therein for their support, meet our views on the subject; and the main doctrine therein announced, to the effect that conferring corporate powers by the Legislature upon agencies of the State, appointed to perform some public work, in the course of the administration of civil government, in order to the more efficient performance of the duties imposed, is not such an act as is prohibited by tlie Constitution, we think, is founded upon sound reasoning' as well as authority. ’ ’

The effect of this holding is that a levee district is not such a corporation as mentioned in § 2, art. 12. Any number of road improvement districts have been created by special act of the Legislature, and all of them are declared to be bodies corporate for the purpose of their creation, and this court has held directly that a road, improvement district is not a corporation within the meaning’ of § 2, art. 12, of the Constitution. They have been held to be quasi governmental or State agencies of special and limited powers. Burt v. Road Imp. Dist., 159 Ark. 275, 253 S. W. 1. Furthermore, under the rules of construction announced -at'the outset, to the effect that .the act must be sustained unless the power is expressly or by necessary implication prohibited, it might be held that the qualification, “unless * * * .to provide for the public welfare,” eliminates State highways from this prohibition, as they are for the public welfare ip a sense. But we do not deem it necessary to discuss this point, as- we hold that road districts are not such corporations mentioned in .§ 12, article 12, of the Constitution. Bank of Commerce v. Huddleston, 172 Ark. 999, 291 S. W. 422.

It is finally claimed that the acts in question were hot passed in accordance with the requirements of § 22 of art. 5 of the Constitution, as follows:

“Every bill shall be read at length on three different days in each house, unless the rules be suspended by two-thirds of the house, when the same may be read a second or third time on the same day; and no bill shall become a law unless, on its final passage, the vote be taken by yeas and nays, the names of the persons voting for and against the same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor.”

This contention is without merit. As was said in Road Imp. Dist. No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825:

“The rule is firmly established in this State that an enrolled statute signed by the Governor and deposited with the Secretary .of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly, and that this presumption is conclusive unless the records, of which the court can take judicial .knowledge, show to the contrary.”

Furthermore, we have examined the journal entries ■ and find every constitutional requirement regularly complied with.

. We find no error, and the decree is accordingly affirmed.

Wood and Ivikry, JJ.', dissent.