author: Mehaeey, J. Smith, J.,

text:
    McGraw v. Miller.
    Opinion delivered December 7, 1931.

      G. W. Botts, for appellant.

      J. M. Brice and Peyton Moncrief, for appellee.
   Mehaeey, J.

November 13, 1923, the appellant and John Pounders executed and delivered to Lige Miller their promissory note for $500, due and payable on or before May 13, 1924. No payments are credited on the note.

May 3,1929, Mrs. Lige Miller, for herself and as next friend for her three minor children, Annie Mae Miller, Rlottie Miller, and Lige Miller, Jr., brought suit in the circuit court of Arkansas County against C. E. McGhraw, the appellant, to recover on said note. Lige Miller, the payee in said note, had been dead about two years. The appellant filed a demurrer, stating that there are not proper parties plaintiff, and that the complaint shows that the plaintiffs have no right to recover in this action against this defendant. The court overruled the demurrer, but permitted plaintiffs to amend their pleadings.

An amendment was filed more than five years after the cause of action accrued. Appellant filed a demurrer to amended complaint. In the amended complaint Mrs. Lige Miller sued as administratrix of the estate of Lige Miller, deceased, and as guardian of the minors and for the benefit of the estate.

As grounds of demurrer, the appellant stated: That the complaint does not state facts sufficient to constitute a cause of action against the defendant in the name of the plaintiff; that the complaint shows that the original party plaintiff had no cause of action against defendant; that said amended complaint shows that the party plaintiff had no cause of action against defendant in the original suit. Appellant further demurred, stating that there are not proper parties plaintiff to this cause, and because the complaint shows that plaintiffs have no right to recover against defendant.

' . The court overruled the demurrers; appellant saved his exceptions, and filed answer, pleading the statute of limitations. Appellant admitted giving the note, but testified that he had paid it to Miller before he died and before the note became due.

Appellant requested the court to give three instructions, which the court refused to give. Each instruction asked in effect directed a verdict for appellant.

It is undisputed that the first suit was filed before the cause of action was barred, and that the amendment was filed a few days more than five years after the cause of action accrued. It is the contention of the appellant that the amendment was the beginning of a new suit, and that it was barred by the statute of limitations. Attention is first called to the case of Lambert v. Tucker, 83 Ark. 416, 104 S. W. 131. That, however, was a suit in replevin, and the court held that the title and right to possession of the property must be determined by the status at the time of the commencement of the action. The administrator was held to be the person entitled to sue, and Tucker and his wife brought suit, but the court stated they shówed no demand nor any refusal to give up the property, and that Lambert, having come peacefully into the possession of the property, detained it as the representative of the sisters of Ohaver. This was a contest between the representative and the heirs, and the court held that the right to possession was in the representative.

The court also said that neither the widow nor the heirs could disturb the possession of the other. It is contended, however, that the appointment of an administrator is conclusive as to the necessity. This is only true on collateral attack. In the instant case there is no attack, collateral or otherwise. It is true that the court said in the above case that the action of the probate court in appointing an administrator is conclusive of the necessity to appoint, but the court cited the case of Stewart v. Smiley, 46 Ark. 373, where the court held that the appointment could not be collaterally attacked. The appointment of administrator, however, is not conclusive except on collateral attack. In the instant case, the court declined to sustain appellant’s demurrer, holding in effect that the plaintiffs in the suit had an interest, but that it was proper to have an administrator and guardian parties.

The next case to which attention is called is Bertig v. Higgins, 89 Ark. 70, 115 S. W. 935. The court in that case, however, said that the grant of letters of administration was conclusive of the necessity of appointment, but not of the right to take possession of the property, and it was decided in that case that the administrator had no right to the possession of the property.

Appellant also calls attention to the case of Fencing District No. 6 of Woodruff County v. Mo. Pac. Rd. Co., 180 Ark. 488, 21 S. W. (2d) 959. In that case it appeared that suit had been brought originally against the St. Louis, Iron Mountain & Southern Railway Company, and the parties undertook to substitute for the sole defendant, the Missouri Pacific Railroad Company, a wholly different party. The first defendant had no interest whatever in the suit, and when a sole defendant or plaintiff is shown to have no interest in the suit, the substitution of another party, either plaintiff or defendant, for the sole plaintiff or defendant, would, of course, be the beginning of a new suit. The St. Louis, Iron Mountain & Southern Railroad Company had no interest in the suit, and there was therefore no suit- pending against any defendant who had any interest in the litigation.

The statute (Crawford & Moses’ Digest, § 1089):

“Provides, every action must be prosecuted in the name of the real party in interest, except as provided in §§ 1091, 1092, 1094.”

The widow and minor heirs, who were plaintiffs in the original suit, were the real parties in interest. Lige Miller had been dead about two years, according to the testimony, and the evidence does not show that there are any claims against his estate, or that he was indebted in any way. The fact that he was lending money is a circumstance tending to show that he was not indebted. However, there is no direct evidence as to whether the estate owed any debts or not, but the undisputed facts are that he had been dead about two years, and there is no showing that any person was claiming that he owed any debts, or that the property, including this note, did not belong to the widow and minor heirs; but, if he had been indebted, they still had an interest, and the amendment was not a substitution of a new party for the sole plaintiffs, but was the prosecution of the suit for the same parties in interest by their representatives.

In the case relied on by appellant, Irby v. Dowdy, 139 Ark. 299, 213 S. W. 737, the court said: “Had the suit been instituted, in the first place, by any one as the next friend of Herbert Irby, it would have been within the discretion of the court to have substituted his natural guardian or any other person as next friend, for the next friend who had first brought the suit. * # * In the suit supposed, the infant would have been the real party in interest, and not the party who represented him, and the substitution of the natural guardian or another person as next friend would not have the effect of bringing a new cause of action.” Buckley v. Collins, 119 Ark. 231, 177 S. W. 220; St. L., I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893.

The amendment in the instant case was not the bringing of a new suit, and the cause of action was therefore not barred by the statute of limitations.

It is unnecessary to set out the evidence because the appellant admits the execution of the note sued on, but he testified he had paid it by hauling logs for Miller during Miller’s lifetime.

This court has repeatedly held that, where a party in interest testifies, his testimony is not to be regarded as undisputed. The question, however, as to whether he had paid the note, and the circumstances under which he claimed to have paid it, were questions of fact settled by the verdict of the jury against appellant, and the vbrdict is conclusive here.

The judgment of the circuit court is affirmed.

Smith and Humphreys, JJ., dissent.

Smith, J.,

(dissenting). The only question of fact in this case was whether the note had been paid, and, as the majority say, that question was settled by the verdict of the jury adversely to appellant. His testimony on this issue was that he paid the note before its maturity, so that there was never a question of fact as to the arrest of the statute of limitations after the maturity of the note by a payment, partial or otherwise.

There was no allegation in the pleadings as to the existence or nonexistence of debts due.by the intestate, the payee in the note, and no testimony whatever was offered on that subject.

The question whether the note was barred by the statute of limitations arises upon facts about which there is no dispute, and it is therefore a question of law. These facts are as follows: The note was dated November 13, 1923. It matured May 13, 1924. Suit was filed by the widow and minor children on May 3, 1929, at which time the payee had been dead about two years. A demurrer, which questioned the right of the widow and minor chil-‘ dren to sue, was overruled, but leave to amend was given. A second or amended complaint was filed June 26, 1930, which was about six years and one-and-a-half months after the date of the maturity of the note and more than two years after the death of the payee in the note, and more than thirteen months after the first complaint had been filed.

In this second suit the widow alleged that she is now the administratrix of the estate and the guardian of her children, and that she sues in the capacities of administratrix and guardian. Except for the allegation that the widow is now, that is, at the time of filing the amended complaint, the administratrix and guardian, the record is silent as to when letters of administration issued. The letters were not offered in evidence, and we do not know when the widow became the administratrix except from the allegation that she is now the administratrix.

The record is silent as to the value of the estate as well as to the debts of the intestate. But the fact is that the widow herself has taken out letters of administration, and the law is well settled, as the majority say, that the appointment of an administrator, in the absence of any direct attack upon the appointment or appeal from that order, is conclusive of the necessity for an administration. Sharp v. Himes, 129 Ark. 327, 196 S. W. 131. Here the widow not only made no question as to the necessity for an administration, but has actually administered and seeks to recover in that capacity.

While there was no testimony as to the value of the intestate’s estate, we know that it exceeds $300, as the suit is upon a note for $500, with five years’ interest thereon. Therefore, § 80, Crawford & Moses’ Digest conferred upon the widow and mixior childrexx no right to sue.

This section of the statute was construed in the case of Bertig v. Higgins, 89 Ark. 70, 115 S. W. 935. That was a suit by the administratrix of axx intestate whose estate was less thaxx $300 ixi value. It was there held that under § 3 of Kirby’s Digest (§ 80, Crawford & Moses’ Digest), where the personal estate of a deceased person does not exceed in value the sum of $300, the title thereto vests in the widow and minor children of such person uxider the statute, and they alone are authorized to sue for its possessioxx, and the judgment was reversed, and the case was dismissed because the administratrix did xiot have capacity to sue.

The decision in that case that the suit should have ■been ¡brought by the widow and not by herself a.s administratrix, although the widow was also the administratrix, was based upon the fact, expressly stated, that the value of the estate did not exceed $300, axxd upon that ground the case was distinguished from the case of Lambert v. Tucker, 83 Ark. 416, 104 S. W. 131. In the latter case the value of the estate of the intestate was variously estimated from seven hundred to a thousaxid dollars in value, axxd being, as the opixxion recites, in excess of $300, the administrator was permitted to recover from the possession of the widow the two mules and wagon there in litigation. The court said: “Neither the widow nor the heirs could disturb the possession of the other. But the administrator could disturb the possession of both, and he woxxld be entitled to the intestate’s persoxxal property. The actioxi of the probate court in appointing an administrator is conclusive of the necessity for administi-ation, axxd canxxot be collaterally attacked. Stewart v. Smiley, 46 Ark. 373.”

In the Lambert case, supra, the administrator was allowed to recover possession of the personal property from the widow because the value of the estate was from $700 to $1,000. In the Bertig case, supra, as is there pointed out, the widow, and not the'administratrix, was authorized to sue because the value of that estate did not exceed $300. In neither case was it intimated, as it is in the majority opinion in the instant case, that it made no difference whether the suit was by the administratrix or by the widow. Both cases are to the contrary. Upon the authority of both these cases, the instant case should have been brought by the administratrix, as the value of the subject-matter of the litigation was $500, with five years’ interest, and we do not know that this was all of the property of the estate.

There is a condition under which the heirs may sue, regardless of the value of the estate, and this situation is covered by § 1, Crawford & Moses’ Digest, which reads as follows: “When all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases where the creditors of such estate consent or agree for them to do so, or where they have paid or satisfied all'valid debts and demands against such intestate, or where such intestate was, at the time of his death, under no legal liability, either matured or incipient, to any person; and in every such case, after they have taken such control and management of the estate, no letter of administration shall be granted thereon, or, if granted, the same shall, on their application, be revoked.”-

The inapplicability of this statute is apparent when it is stated that there was no allegation or proof of the existence of the conditions precedent there made necessary for the heirs to sue under that statute. On the contrary, it affirmatively appears that the children of the intestate are minors, and that the plaintiff herself is the|r guardian,

This statute has been several times construed. In the case of Business Men’s Accident Association of America v. Green, 147 Ark. 199, 227 S. W. 388, it was held (to quote aheadnote in that case) that: “Under Crawford & Moses’ Digest, § 1, authorizing action by adult heirs to collect the ancestor’s property without administration in certain cases, a complaint by the sole heir of a decedent must allege, either that the creditors consented, or that all of decedent’s debts have been paid, or that decedent was under no legal liability, either matured or incipient, to any person.”

In holding that the heir as such had no right to maintain that suit, it was there further said: “The allegations of the complaint are not, however, sufficient to bring appellee within the terms of this statute, in that it is not alleged that the creditors of the estate consent or agree for appellee to maintain the action, or that appellee has 'paid or satisfied all valid debts and demands against such intestate, or where such intestate was, at the time of his death, under no legal liability, either matured or incipient, to any person.’ This omission is fatal to appellee’s right to maintain the suit, and the demurrer should therefore have been sustained. Chisholm v. Crye, 83 Ark. 495 [104 S. W. 167].”

This case of Chisholm v. Crye, supra, also construed § 1, Crawford & Moses’ Digest, it being there referred to as § 15, Kirby’s Digest, where it was said: “This statute contemplates that suit can be maintained by the heirs themselves for the collection of debts due their intestate when the heirs themselves and all persons interested as distributees of the estate are of full age, and when the intestate ivas at the time of his death under no legal liability. The usual rule of ex pressio unius est exclusio alterius applies here. The expression that it shall be lawful for the heirs to sue under the condition named excludes the idea that they may sue under conditions not named.” See, also, Madison County v. Nance, 182 Ark. 775, 32 S. W. (2d) 1073.

I submit, therefore, that the widow and heirs as such had no capacity to sue.

It appears to me to be equally as certain that the second or amended complaint filed in the name of the administratrix is not a continuation of the original suit brought by the widow and heirs, but is an entirely different suit. The first suit was, as it expressly professed to be, a suit by the widow and heirs, and was, of course, for their benefit, and the recovery therein would have inured to their benefit and not to that of the estate. The amended complaint was a suit by the administratrix and was, of course, for the benefit of the estate, and, while the widow and heirs might have had an interest in the money there sought to- be recovered, their interest was incidental and collateral and not direct and individual, as it was in their own suit. Their interest in money recovered in the second suit would have been worked out through the ordinary processes of administration with which we are all familiar, whereas, if they had recovered in the first suit, their recovery would have been independent of the administration.

If citation of authority for this proposition is required it may be found in the case of McCustian v. Ramey, 33 Ark. 141. In that case an administrator had paid to the heirs of Mills their distributive shares of the estate, and these payments were pleaded against the suit brought by Mills’ administrator to recover the original debt. In disallowing credits for such payments the court said: “The heirs of Aaron Mills could not sue appellant for the money because they had no direct legal cause of action ag’ainst him; nor could he legally discharge himself from liability to the administrator, when appointed, by paying the money to the heirs. After the claims of creditors are paid by the administrator, the heirs get the remainder of personal assets by distribution through the probate court, as provided by the statute. ’ ’

While it is true that the recovery was sought in both complaints upon the same cause of action, the parties sue in different capacities, and the statute of limitations should therefore be computed down to the time when a suit was brought by a person having capacity to sue, which in this case was the administratrix.

In the case of Davis v. Chrisp, 159 Ark. 335, 341, 252 S. W. 606, it was held that where there is an amendment stating a new cause of action or bringing in new parties interested in the controversy, the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitation has already expired as to such new cause of action or new parties, and a number of our cases were there cited to support that statement of the law:

We have a statute appearing in the chapter on “Limitation of Actions” (§ 6968, Crawford & Moses’ Digest), which reads as follows: “If any person entitled to bring any action in the preceding provisions of this act specified die before the expiration of the time herein limited for the commencement of such suit, and such cause of action shall survive to his representatives, his executors or administrators may, after the expiration of snch time, and within one year after such death, commence such suit, but not after that period.”

This section has no application for the reason that the original suit was not brought for two years after the creditor’s death, and more than three years had expired after his death before the amended complaint was filed. There appears a note to this section of the Digest which reads as follows: “When the statute commenced to run in creditor’s lifetime, it did not stop upon his death until administration granted on his estate,” and cases are there cited in support of that statement, to which numerous others might be added.

These cases and the statement of the law announced in them, just quoted, appear to me to be decisive of this case, and should compel the holding that the cause of action was barred when sued on by the administratrix more than six .years after the cause of action had accrued, there being no allegation which would arrest the running of the statute. The cause of action appears from the face of the second complaint to be barred, and there was no word of testimony to show that the bar of the statute had not fallen, except that a suit had been brought on the note before it was barred by persons having no capacity to sue. But the law is settled that in order for a prior suit to prevent the running of the statute of limitations against a subsequent suit it must appear that both suits are for the same cause of action and between the same parties. McClellan v. State Bank, 12 Ark. 141; Crow v. State, 23 Ark. 684, 693; Gray v. Trapnall, 23 Ark. 510; State Bank v. Sherrill, 12 Ark. 183; Trapnall v. Burton, 24 Ark. 371; Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013; Temple Cotton Oil Co. v. Davis, 167 Ark. 448, 268 S. W. 38.

In this case, while both complaints declared upon the same cause of action, the parties were not the same, and the first suit did not, therefore, have the effect of tolling the statute of limitations against the second suit. Such cases as St. Louis, I. M. & So. Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, and Arkansas Land & Lbr. Co. v. Davis, 155 Ark. 541, 244 S. W. 730, are not to the contrary. In the first of these cases it was held that where a suit was brought by an infant by her foreign guardian, it was not error to permit her to substitute a resident as her next friend. This holding was upon the ground that there was no substitution of plaintiffs because the infant was the real and proper party in both the original and amended complaints, and the suit was hers and for her benefit, whether brought by a guardian or by a next friend.

The case of Arkansas L. & L. Co. v. Davis, supra, was one in which an action had been brought within the time limited by law against one as Director General of Railroads when he was not such, and subsequently the Director General was substituted as defendant, the date of the substitution being- such that a new cause of action would have been barred. This substitution was permitted upon the ground that the cause of action was against the United States, and the substitution of the correct name of the Director was merely to correct an error in the name of the representative of the United States.

The inapplicability of these and similar cases to facts such as those out of which the instant case arises is made very clear in the opinion in the case of Irby v. Dowdy, 139 Ark. 299, 213 S. W. 1039, where it was said: “Appellant insists that the court erred in refusing to permit him to substitute, in his place, as plaintiff, himself as guardian and next friend of his son, Herbert Irby, who was the real owner of the horse in question. Had the suit been instituted in the first place by any one as the next friend of Herbert Irby, it would have been within the discretion of the court to have substituted his natural guardian, or any other person as his next friend, for the next friend who had first brought the suit. Wood v. Claiborne, 82 Ark. 514, 82 S. W. 514; Nashville Lumber Co. v. Barefield, 93 Ark. 353, 124 S. W. 758. In the suit supposed, the infant would have been the real party in interest, and not the party who represented him, and the substitution of the natural guardian or another person as next friend would not have the effect of bringing a new cause of action. Freeman v. Lazarus, 61 Ark. 247, 32 S. W. 680; St. Louis, I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Haydon v. Haydon, 98 Ark. 480, 136 S. W. 631; Buckley v. Collins, 119 Ark. 231, 177 S. W. 920. While it is true that § 3757. of Kirby’s Digest provides the natural guardian shall have the custody and care of minor children and their estates, it does not follow that they can maintain suits in their individual names for their children’s property, for it is provided by § 6021 of Kirby’s Digest that ‘the action of an infant must be brought by his guardian or his next friend.’ Unless the minor was' included as a party plaintiff when the action was brought, his inclusion thereafter would amount to the institution of a new suit. This court said, in the case of State v. Rottaken, 34 Ark. 144, quoting the fourth syllabus: ‘Where a plaintiff shows in his complaint that he has no- cause of action, the court cannot amend it by making other plaintiffs who have. ’ This rule of pleading was reaffirmed in the case of Schiele v. Dillard, 94 Ark. 277, 126 S. W. 835. In approving the rule, the court said: ‘The appellant sought by amendment to their complaint to substitute new parties defendant. This could not he done. While the court may in its discretion allow additional parties plaintiff or defendant to he added or struck out, it cannot make an entire change of parties plaintiff or defendant. That would he tantamount to a new suit between entirely different parties’.”

It is my opinion, therefore, that this cause of action was barred when the amended complaint was filed making for the first time a party plaintiff who had the capacity to sue, and a verdict should therefore have been directed in favor of the defendant for that reason.

I am authorized to say that Mr. Justice Humphreys concurs in the views here expressed.


source: Caselaw Access Project

author: Mehaefy, J.

license: Public Domain

text:
    Lusby v. Sachs.
    Opinion delivered December 7, 1931.

      X. O. Pindall and Wm. H. Lusty, for appellant.

      Sam M. Wasset for certain interveners, and D. K. Hawthorne, for appellee.
   Mehaefy, J.

Appellant, W. H. Lusby, who had been in the drug business in the city of Little Rock for a number of years, in January, 1930, closed his store and stored his stock of goods. About the 24th day of February, 1930, he purchased through appellee, from Mrs. Bertha Koban, a stock of goods, merchandise and fixtures, and executed his promissory note for the sum of $745, payable in monthly installments, and on the same day, to secure payment of the note, he executed and delivered to Mrs. Koban a chattel mortgage, which included the property purchased by appellant and also some merchandise and fixtures that appellant owned.

On the 7th day of June, 1930, Bertha Koban, the mortgagee, assigned and transferred the note and mortgage to appellee, M. L. Sachs. The note was not paid, and on July 1, 1930, appellee begun suit in the Pulaski Chancery Court to recover on said note and foreclose the mortgage.

On the same day that suit was filed, the court appointed a receiver to take charge of said property. On the 21st day of July, the appellant, W. IT. Lusby, filed an answer to the original suit, denying all the material allegations in the complaint, and also filed a cross-complaint against M. L. Sachs and Bertha Koban.

On the 22nd day of July, 1930, W. H. I. Ta.te filed an intervention, alleging that Lusby was indebted to him in the sum of $1,350, evidenced by a -promissory note which was filed and made a part of his intervention. It was alleged that the indebtedness was incurred prior to the giving of the chattel mortgage to Koban, and it also alleged that the giving of the mortgage was contrary to the statute, and void, because no notice was given and no certified list of creditors as required by statute. He alleged that the mortgage was void, and asked that it be so held, and that the goods should be held in trust for the benefit of intervener.

On the same day, July 22d, Dad Chemical Company filed an intervention, claiming that W. H. Lusby was indebted to it in the sum of $39.50, and attached to the intervention was an itemized statement of account. The same allegations were made in this intervention that were made in the intervention of Tate.

Appellant filed answer to the intervention, and Bertha Koban and appellee filed their answer to the cross-complaint.

On July 28, 1930, the chancery court ordered the receiver to sell the property described in the mortgage. The receiver made a sale, and filed his report. Exceptions were filed to the report of the receiver and objections to confirmation of the sale.

On August 16,1930, the case was heard on oral testimony and a decree was entered, finding that the appellant, W. H. Lusby,' was indebted to the appellee, M. L. Sachs, $745, evidenced by promissory note and secured by mortgage upon certain property, describing it, and that appellant, Lusby, was also indebted to appellee, Sachs, in the sum of $120 for rent due.

The decree was also for 7 per cent, interest on the $745 and 6 per cent, on the $120. The court, after finding the amount due appellee, ordered the sale of the property, dismissed the cross-complaint of appellant, and continued the cause as to the intervention for further hearing. The decree directed the receiver to hold such money or securities as he received until the further order of the court.

The appellant and cross-complainant prayed and was granted an appeal to the Supreme Court. The interveners did not pray an appeal.

On September 11, 1930, Vadsco-Dales Corporation filed an intervention, claiming' that appellant, Lusby, was indebted to it in the sum of $39.93, and that this indebtedness arose prior to the mortgage, and that the mortgage was void. It asked that the proceeds of the sale of the property be distributed pro rata- amongst intervener and other creditors.

On November 12, 1930, W. H. Lusby filed a motion to set aside the judgment and decrees of the court. There was certain property that it was claimed belonged to others, and the appellee agreed that he had no mortgage on it, and it was turned over to the persons claiming it.

Mrs. Loella Lusby filed an intervention, claiming that she was entitled to salary, and, $100 was allowed her. There was also an allowance for rent to the Pulaski Building & Loan Association.

On January 21, 1931, after hearing oral testimony, the court allowed the claims of the interveners and directed the receiver to pay the rent, $120, and, by consent, the judgment formally entered against Lusby in favor of Sachs was credited with $213.89, leaving a balance of $531.11. The receiver was ordered to sell at private sale the merchandise and fixtures.

On February 8, 1931, the receiver was directed to accept a bid of $275 for the property, and the sale for that amount was confirmed. The receiver was directed to pay expenses incurred by him as shown by his report.

On the 10th day of February, 1931, by consent of all parties, all the expenses of the receiver, except the rent, was to be paid first, and after the payment of all other expenses, he was directed to pay the rent, and, upon the payment of this money as directed by the court, it was ordered that the receiver and the sureties on his bond be discharged and relieved.

Testimony of a number of witnesses was taken before the chancellor entered the decrees mentioned, and on July 17, 1931, the appellant, W. H. Lusby, W. H. I. Tate, Dad Chemical Company, Mrs. Loella Lusby, and E. B. Jones prayed an appeal to the Supreme Court, ■which was on that day granted.

When the decree of foreclosure was granted on August 16,1930, the parties were present, and the defendant prayed and was granted an appeal to the Supreme Court. The decree was entered for judgment in favor of the appellee against the appellant, Lusby, for the amount sued for and the cross-complaint of appellant, Lusby was on that day dismissed.

The cause was continued as to the interventions. It was evidently continued, however, for the sole purpose of determining the rights of the interveners as against appellant, W. H. Lusby. The court necessarily found that appellant was indebted to the appellee, and that the mortgage was valid and binding, and therefore its foreclosure was ordered. The court necessarily considered all the questions involving the validity of the debt and mortgage, and the decree of August 16, 1930; was a final decree. The statute provides: “A judgment is the final determination of the rights of the parties in the action. ’ ’ Section 6233, Crawford & Moses’ Digest. All the rights as between appellant, Lusby, and appellee, Sachs, were finally determined on August Í6, 1930, and the rights of the interveners, so far as they affected the appellee, were also determined.

Appeals must be taken within six months next after the rendition of the .judgment, order or decree, sought to be reviewed. Section 2140, Crawford & Moses’ Digest; Stephens v. Williams, 122 Ark. 255, 183 S. W. 527; Newald v. Valley Farming Co., 133 Ark. 456, 202 S. W. 838.

“In peculiar cases the court may decree as to certain defendants, or property, while all the equities as to the other defendants and property are reserved for further consideration; and yet this decree as to certain defendants or property may be final. If, in the course of the proceedings, final decrees vital to the interest of any of the litigants are made, an appeal may be had.” Flan nigan v. Drainage District No. 17, 176 Ark. 31, 2 S. W. (2d) 70.

There can be no question but what the decree of August 16, 1930, was final as to Sachs and Lusby. The court decreed the amount due from Lusby and dismissed Lusby’s cross-complaint, and Lusby prayed an appeal at the time, but did not perfect it.

In the decree, however, the cause as to the intervention was continued for further hearing. There could not have been any further hearing as to the validity of the note and mortgage. The contention made by the interveners is that the mortgage was void because the sale of the property was made in violation of the statute.

It is contended by the interveners that they are entitled to a judgment against Sachs because of a violation of the Bulk Sales Law.

They cite and rely on, first, Prins v. American Trust Co., 169 Ark. 455, 275 S. W. 914. This case construes § 4870 of Crawford & Moses’ Digest, but this section does not make void a sale of a stock of merchandise, even when not complied with, except as to creditors. None of the interveners were creditors of Mrs. Koban. She sold the property to Lusby, and at the same time took note and mortgage from Lusby for the amount. It is not claimed that Mrs. Koban was indebted to any of the parties, and there is no claim that she did not have the right to sell in bulk or any other way she might wish to sell.

There could therefore be no question about the validity of the mortgage as to the property sold by Mrs. Koban, and this was the bulk of the property contained in the mortgage. In fact, the evidence does not show the value of the property included in the mortgage which belonged to Lusby. Lusby was not at the time engaged in business, but his property was stored, and, in order to go into business, he purchased the property from Mrs. Koban, and gave a mortgage on it and some of his own property to secure the payment of the indebtedness to Mrs. Koban.

The part of the property that originally belonged to Lusby was of very small value, and yras; in fact, put into the mortgage with the other property, to enable Lusby to go into business again. He was not only not selling his property in violation of the Bulk Sales Law, but he was endeavoring to establish himself in business again.

This court has said that the Bulk Sales Law was never intended to prevent a merchant from, moving his business to a new location, and in so doing dispose of odds and ends or remnants. The purpose of the act was to prevent fraudulent sales. Fiske Rubber Co. v. Hayes, 131 Ark. 248, 199 S. W. 96.

A chattel mortgage covering a stock of merchandise, where the mortgagor remains in possession and has the usual right of redemption, creates a lien only, and does not pass title, and is not a sale, exchange or assignment within the meaning of the Bulk Sales Law, and is therefore not within the inhibition of the statute. Farrow v. Farrow, 136 Ark. 140, 206 S. W. 134.

As we have already said, however, the decree of August 16, 1930, necessarily considered all these matters. The chancery court found the mortgage valid as to all the property, dismissed appellant’s cross-complaint, and this decree was not appealed from within time.

There is no evidence in the record of any fraudulent sale in violation of law, but, if such evidence had been introduced, the finding of facts by the chancellor could not be disturbed by this court, unless the finding was against the preponderance of the evidence. We do not think it was.

Lusby had owed these interveners, and the amounts had been due several months, and Lusby had quit business, and had no stock of merchandise in business, owned this property, which he pledged with other property purchased to enable him to go into business again. No effort was made by the interveners to collect their debts, and no claim by them that there was any violation of the Bulk Sales Law, until the appellee undertook to foreclose the mortgage.

The finding of the chancellor is sustained by the evidence, and the decree is therefore affirmed.


author: McHaney, J.

text:
    Wells v. Hunter
    Opinion delivered December 7, 1931.

      W. A. Leach, for appellant.

      George G. Lewis, for appellee.
   McHaney, J.

On April 20, 1923, appellees, who are nonresidents, executed and delivered to J. M. Peterson their promissory notes aggregating $11,000, secured by a mortgage upon their rice farm in Arkansas County. Appellees also executed a note and second mortgage on the same property to an Iowa bank with which appellants seemed to have been connected. Default having been made in the payment of the Peterson notes and mortgage, suit was brought to foreclose, and a receiver was appointed, who took charge of the rice farm and leased same for the year 1925. Appellants acquired the Peterson notes, and the suit to foreclose was abandoned, but the receivership was continued for the purpose of receiving and distributing the proceeds of the 1925 crop. In November, 1925, appellants brought suit to foreclose the Peterson mortgage, making the second mortgagee a party, which resulted in a decree of foreclosure both on the suit of appellants and the cross-complaint of the holder of the second mortgage, and the property was sold to the appellants on their "bid of $13,000, a sum slightly less than was due them. This sale was confirmed in February, 1926, and deed executed and delivered to appellants. Appellees were not personally served, but, being nonresidents, were served by warning order. In December, 1927, within the two years allowed under § 6266, Crawford & Moses ’ Digest, the appellees appeared and moved for a retrial under the statute, stating that the receiver had collected a considerable sum of money for the 1925 rice crop which should have been applied to the satisfaction of their debt in liquidation of the difference between the amount of appellants’ bid and the judgment against the land, and the remainder to the satisfaction of the second mortgage, and praying that the decree and sale' be set aside and that appellants be required to account not only for the amount they had wrongfully had from the receiver, but for all rents subsequently collected. It appears that appellee had procured a satisfaction of the decree in favor of the Iowa bank on its second mortgage and that appellants took possession of the rice farm under the sale aforesaid, and thereafter continued in possession thereof, claiming title thereto under said sale, collecting the rents and profits. No response was filed by appellants to the motion of appellees for a retrial under the statute until January 19, 1931, during which time depositions were taken on both sides which tended to show that appellants were claiming to own the land under their purchase at the foreclosure sale and entitled to the rents 'and profits. The appellee, Mr. Hunter, testified that he had made demand on the appellants for an accounting, which was refused on the ground that it was none of his business. In their response filed on the 19th day of January, 1931, appellants changed their former position somewhat by admitting that they were only mortgagees in possession, agreed that the sale be set aside, and offered to account for all moneys had from the receiver and all crops raised during the subsequent years of their possession. Thereupon appellees, by leave of court, amended their petition so as to ask only for a judgment against appellants for the surplus of the proceeds of the rice crop of 1925, after deducting the amount of appellants’ bid from the judgment against them.

On a trial, the court found in favor of appellees in the sum of $2,922.67, with interest from March 21, 1926, which was made a lien on the land.

Appellants’ contention on this appeal is that the court erred in allowing the filing of the amendment to appellees’ motion for the reason that the cause had been fully developed on the issues raised by the pleadings, and that the amendment was an abandonment of the motion to retry the cause, and was the commencement of a new and independent action not permitted or authorized by § 6266, Crawford & Moses’ Digest. This section provides:

“Where a judgment has been rendered against a defendant or defendants constructively summoned and who did not appear, such defendants or any one or more of them may at any time within two years, and not thereafter, after the rendition of the judgment, appear in open court and move to have the action retried; and, security for the costs being given, such defendant or defendants shall be permitted to make defense, and thereupon the action shall be tried anew as to such defendant or defendants as if there had been no judgment, and upon the new trial the court may confirm, modify or set aside the former judgment, and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant or defendants paid to them under such judgment, or any property of such defendants obtained by the plaintiff under it and yet remaining in his possession, and pay to the defendant the value of any property which may have been taken under an attachment in the action or under the .judgment and not restored; provided the provisions of this section shall not apply to judgments granting a divorce except so far as relates to alimony.”

We cannot agree with appellants in this contention. What was sought to be accomplished in the original motion .was an accounting by appellants for all they had received while in possession of the land, either through the receiver or under purchase at the foreclosure sale, and that the amount found, to be due by such accounting be applied in satisfaction of the debt owing to them by appellee, their purpose being an effort to get back their land. The only thing accomplished by the amendment was to reduce the period of time for which an accounting was asked. This does not change the nature of the relief asked by appellees, but only the amount of such relief. Appellees made no contention that the amount of their indebtedness was improperly adjudicated, but only that that indebtedness should have been reduced by the rents and profits for the years 1925,1926,1927. By the amendment they eliminated their request for an accounting for all years except 1925, and we fail to see wherein they have been prejudiced by the action of the court in permitting such amendment: We fail to see that the amendment stated a new cause of action or materially changed the old one, except to narrow the relief sought. As said by this court in Foster-Holcomb Inv. Co. v. Little Rock Pub. Co., 151 Ark. 449, 236 S. W. 597: “We think the court properly permitted the amendment to the complaint. Our statute on amendments is very broad, and has been given a very liberal construction by the courts to effectuate its manifest purpose, that is, that litigation may be tried upon its merits. This statute is as follows:

‘ ‘ ‘ The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. Crawford & Moses’ Digest, § 1239.’
“Among numerous other cases construing this statute is the case of Midland Valley Rd. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214, where we said: ‘Under this section the court may, in its discretion, before the commencement of the trial, allow a complaint to be amended so as to change the cause of action to another one which might have been joined in the same action; and at any time during the progress of the trial may permit an amendment which does not change substantially the claim so as to conform to the facts proved. The only limitation in the statute is that, after the proof is introduced, the pleadings cannot be amended so as to substantially change the cause of action’.” See also cases there cited.

It will be seen that the statute expressly provides: “Upon the new trial the court may confirm, modify or set aside the former judgment and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant or defendants paid to them under such judgment,” etc. The appellants, by order of court, had been paid a large sum of money by the receiver, to which they were not entitled, having bid $13,000 on a judgment for $14,340.82, and the order of the court here restores to appellees such excess.

No contention is made by appellants that the amount adjudged to be due by the decree of the court is incorrect. We have reached the conclusion that the court correctly permitted the amendment under the above statute, and the decree is accordingly affirmed.


text:
    St. Louis-San Francisco Railway Company v. Fine.
    Opinion delivered December 7, 1931.

      E. T. WIiller and Warner >$ Warner, for appellant.

      Partain \& Agee, for appellee.
   McHaney, J.

This is an action for damages for personal injuries received by appellee on September 8,1930, while in the employ of appellant as a member of a bridge crew, by being struck by one of appellant’s trains, on its main line south of St. Louis about 35 miles, at a bridge across Merrimac River in the State of Missouri, about 3 p. m. of that date. This same crew, including appellee, had been working on an overhead bridge at Old Orchard, Missouri, a few miles south of St. Louis, and, when they had finished that work, they proceeded to the Merrimac bridge on Saturday, September 6, where they unloaded their tools, machinery, etc., preparatory to the repair of that bridge. A part of the equipment was an air compressor machine, used in connection with, or to operate, the hammer to weld rivets in the steel plates on the bridge. It was a heavy piece of machinery, weighing about five tons, and was unloaded and set in place on the dump or fill, (which was from 100 to 200 yards long from the north end of the bridge) about 25 feet from the north end and on the east side of the track in the clear of passing trains. Appellee testified it was set about two feet east of the east end of the ties, but appellant’s witness, who had measured the distance, testified it was six feet, two inches from the east rail. This compressor was about ten feet long, six feet wide and six feet high with an engine at either end and an air tank in the middle. While in operation, it makes a great deal of noise. The bridge was constructed with a girder on each end about 100 feet in length, and had two spans in between these girders with steel overhead structure. The repairs to be made were on the overhead structure, and at the time of the accident the crew, together with the assistant foreman, were engaged in working on the overhead structure of the north span, about 125 feet from the air compressor. Appellant’s fast passenger train, known as the Blue Bonnet, left St. Louis traveling south at 2:20 p. m. each day to the knowledge of the crew, including appellee, but appellee did not know what time it arrived at the bridge or its schedule. Appellee was working on the east side of the compressor attending to his duties in the usual way when the necessity arose to adjust a grease cup on the west side of the compressor (his duties being to oil, grease and otherwise attend the engines so as to keep them operating), so he walked around the north end of the compressor and then south between the compressor and the track, stooped over to adjust a grease cup, and was struck about the left buttock by some part of the engine of the passing train and was seriously injured.

He brought this action under the Federal Employers ’ Liability Act, charging that appellant was negligent in that the assistant foreman, Bezdek, who was in charge of the crew, the foreman being absent, directed him to operate the air compressor machinery, and that he, the assistant foreman, would watch out for trains and warn him of their approach, which he failed to do. The trial resulted in a verdict and judgment against appellant in the sum of $30,000. Wherefore this appeal.

For a reversal of the judgment, appellant first argues that the evidence is insufficient to support the verdict. We cannot agree with appellant in this contention, as we think the facts justify the submission of the question of negligence to the jury. It is conceded that the liability of appellant, if any, is governed by the Federal Employers’ Liability Act (U. S. Comp. St., §§ 8659-8665), and, as we said in St. L-S. F. Ry. Co. v. Smith, 179 Ark. 1015: “Since this suit was brought and prosecuted under the Federal Employers’ Liability Act, which does not define negligence, the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the applicable principles of the common-law as construed by the federal courts.” See cases there cited. A brief statement of the facts, in addition to those already stated, are as follows: The train which struck appellee was running fifty miles an hour, and, at the time appellee walked from a place of safety on the east side of the compressor to a place of danger, the train was seen by the other employees and was only 150 or 200 feet away, north of the compressor, and was in plain view of all the crew, including appellee. There was nothing in the way to prevent him seeing- it, and, in addition to this, there was a semaphore signal located about an eighth of a mile north of the bridge, also in plain view, which had á board or arm on it about three feet long and which automatically moved up and down to signal the approach of trains to the bridge. The arm stood straight up when there was no train in the block, but when one did get in the block the arm lowered to an angle of 45 degrees, and then went straight down when a train in the block got within two miles of the bridge. It was also equipped with a green and red light, the green indicating safety and the red danger. The air was conveyed from the compressor to the workmen on the bridge by means of a pipe to which was attached the equipment for operating the riveting hammer by air, and, when this was in operation, it also made a great deal of noise. . It is conceded that all the machinery, both on the bridge and at the compressor, was in operation at the time of appellee’s injury, and that the noise was such that the approach of the train could not be determined by the sense of hearing. Some of the'employees on the superstructure of the bridge attempted to notify appellee of the danger by calling to him, but were unable to do so. Assistant foreman Bezdek, who had told appellee that he would look out for trains for him and advise him of their approach, which fact we assume to be true for the purpose of this decision, as the jury has evidently so found on conflicting testimony, was on the bridge with the other workmen. Appellee did not know where Bezdek was, but did know about an hour beforehand that he was up on the bridge with the other members of the crew directing their work. Considering the evidence in the light most favorable to appellee, as we must do, under the decisions of this court in determining the sufficiency of the evidence to support the verdict, appellee did not know of the presence of the semaphore nor of the signals thereon nor the schedule of the trains, and, while there was nothing to prevent his seeing the approaching train, being no doubt engrossed with his work and his sense of hearing being of no avail on account of the immediate noise, he neglected to look, and he relied upon the positive promise of Bezdek to warn him not only of this train but of all trains. Appellant’s witness testified that the company had a rule that employees in' bridge crews must watch out for their own safety, but this was denied by appellee, or that, if there was such a rule, he knew of it.

We think these facts sufficient to take the case to the jury under the comparative negligence rule of the Federal Employers ’ Liability Act as contributory negligence, conceding appellee to be guilty of contributory negligence (and the court instructed the .jury that he was as a matter of law) does not prevent a recovery, but only goes to reduce the damages awarded by the jury. Cases cited by counsel for appellant to sustain their contention on this point that the railway company ordinarily owes no duty of keeping a lookout, to give signals of approach or to reduce speed of trains in anticipation of employees along the track, we think have no application to the facts in this case. These cases for the most part apply to track walkers, flagmen, employees working in the yards, section foremen and the like, but we think the rule has no application to section crews or bridge crews where the crews are working under the immediate direction of the foreman and under his express promise to watch out for trains and warn them in time so they may leave their work for the shortest time possible in getting to a place of safety. If all the members of such crews had to look out for their own safety by watching for trains, it would surely interfere with their work. The case of C. R. I. & P. Ry. Co. v. Abel, 182 Ark. 651, 32 S. W. (2d) 1059, relied on by appellant, we think, has no application to the facts in this case for the same reason. There the appellee himself said that their instructions were to be themselves on the lookout for trains and keep out of the way of them, and that he had done that until the time he was injured. .Here, however, appellee was acting upon the direct order of his foreman and under a promise that the foreman would keep a lookout for trains. We think the case is governed by the rule announced by this and other courts that employees such as section men or bridge crews, working on the track or in dangerous proximity thereto, are entitled to warning of .approaching trains, and that it is negligence to fail to do so. See St. L., I. M. & S. R. Co. v. Rickman, 65 Ark. 138, 45 S. W. 56; Sw. Tel. & Tel. Co. v. Woughter, 56 Ark. 192, 19 S. W. 575; St. L. & N. A. R. Co. v. Mathis, 76 Ark. 184, 91 S. W. 763, 113 Am. St. 85. Conceding that there is a rule requiring such employees to ■watch out for their own safety, still appellee had no knowledge of the rule, and an employee is not bound by' a rule of the company not brought to his attention. St. L., I. M. & S. R. Co. v. Puckett, 88 Ark. 204, 114 S. W. 224. Therefore appellee was not bound by a rule of which he had no knowledge, and had the right to rely upon the express promise of Bezdek to protect him. Counsel for appellant say the language used by Bezdek in making the promise to appellee did not amount to a promise to warn or protect him, but, if it did not mean that, it amounted to nothing. Appellant says Bezdek told him to go ahead with his work, and he would watch out for trains. This means that he would do so for appellee’s benefit.

It is next insisted that a number of the instructions are erroneous, some of those given for appellee and those refused requested by appellant. A discussion of these questions could not be made in a reasonable space by taking them up in detail, and we will not attempt to do so. We will say, however, that we have carefully examined these instructions and do not find them open to the objections made, or, if so, specific objection should have been made thereto. For instance, in the instruction given at appellee’s request on the measure of damages, no mention was made therein that the jury should reduce the damages in the proportion that his contributory negligence bore to the negligence of appellant. The court told the jury, however, in another instruction that they must do this, and, if appellant had thought that the instruction, on the measure of damages should have contained the same advice, it should have made such suggestion to the trial court. A great many instructions were given at appellant’s request, and some were refused. On the whole, we think the court fully and fairly instructed the jury on every phase of the case to which appellant was entitled.

It is finally insisted that the amount of the verdict is excessive, and we agree with appellant in this contention. It is true that appellee received a serious injury, that he was only twenty-two years of age, was a strong, healthy and able-bodied young man who was earning $150 per month. He was a common laborer, not being skilled in any particular occupation. At the time of the trial he had not been able to use his left leg. The injury occurred September 8,1930. Suit was filed shortly thereafter, in October, and trial was had in January following. He was in the hospital about thirty days and was able to get around on crutches at the time of the trial. But no bones were broken, and such injuries as he received were to the muscles and nerves. Two examinations were made by one of the physicians, one in November and one a short time before the trial, which showed a distinct improvement in his condition between the examinations. Another physician testifying in his behalf stated that appellee is permanently crippled, • and that in his judgment he may never' be able to walk again without a stick or a crutch to assist him. We think the jury failed to properly reduce the damages in proportion to appellee’s contributory negligence, for an allowance of $30,000 at 6 per cent, would yield him the same rate of pay per month or per year he was making and still leave him an estate of $30,000 at his death. We think this amount is excessive and should he reduced by one-half the amount thereof. If, therefore, appellee will within 15 days enter a remittitur, the judgment will be affirmed for that amount: Otherwise it will be reversed and remanded for a new trial. It is so ordered.


author: Butler, J.

text:
    Taylor v. First National Bank of DeQueen.
    Opinion delivered December 7, 1931.

      Steel S Edwards, for appellant.

      Abe Collins, for appellee.
   Butler, J.

The Bank of DeQueen and the First National Bank of DeQueen, appellee here, were two banks doing business in the city of DeQueen on and before July 15, 1930. At the close of the business on that date the officers -O'f the two banks, as was their custom, met for the purpose of clearing checks they had paid for each other in the course of the day’s business. It was ascertained that the appellee bank held checks of the Bank of DeQueen in the aggregate sum of $1,311.06, and the latter bank held cheeks on the appellee bank amounting to $413.71. The cashier of the Bank of DeQueen, in the settlement of the balance for that day’s business, gave appellee bank a draft on its correspondent bank in Texarkana, where it had at the time money on deposit more than sufficient to take' care of the draft.

The Bank of DeQueen failed to open its doors on the next banking day, and was taken over for liquidation by the appellant, the State Bank Commissioner. When the draft in controversy reached the correspondent bank, that bank had received notice of the insolvency of the drawer and thereupon refused to pay the draft applying the sums on deposit as a credit upon the indebtedness the Bank of DeQueen owed it. The checks drawn by depositors included in the settlement between the Bank of DeQueen and the appellee bank were marked paid and charged by the banks to the accounts of the depositors who had drawn these checks. When the liquidating agent, Simmons, took charge of the Bank of DeQueen, he offered to return to the bank the checks that it handled of the Bank of DeQueen on the last day of its business, and to reverse the entries on the books of that bank if appellee bank would return the $413.71 of checks drawn on it on that day or the cash equivalent, which proposition was declined by the appellee.

Appellee bank presented to the appellant bank commissioner the aforesaid draft which the Bank of DeQueen had drawn in its favor for allowance as a preferred claim. On the refusal of the appellant to so allow it, the appellee filed its petition and intervention in the chancery court of Sevier County, setting up substantially the facts leading up to the drawing of the draft and the rejection of the claim by the appellant as a preferred claim, with a prayer that it be allowed as a prior claim against the assets of the insolvent bank in the hands of the commissioner. An answer was duly filed to the petition and issue joined. At the hearing of the case, when the above facts were developed in testimony, the chancellor granted the prayer of the petition, and the bank commissioner has duly prosecuted this appeal.

The sole question presented is whether the transaction between the two banks and the check or draft given in consummation thereof entitled it to be allowed as a prior claim as contended by the appellee in the court helow, and as the chancellor found.

It is settled law that one who holds a check or draft of a hank which becomes insolvent before snch is paid is not entitled to any preference over other creditors. 7 C. J., p. 751. Under a state of facts practically identical with those before us, the court, in the case of First National Bank v. Farmers’ State Bank, 120 Kan. 706, 244 Pac. 1049, 44 A. L. R. 1531, held that the holder of the draft of the insolvent bank, given for the balance in the holder’s favor where checks were cleared between it and the insolvent bank on the last day of that bank’s business, and which had been dishonored by its correspondent upon which the draft was drawn, was entitled to no preference over the general creditors of the insolvent bank, as there was no trust relation created by the transaction, and the relation existing between the two was merely that of debtor and creditor.

In American Bank v. People’s Bank (Mo. App.), 255 S. W. 943, a similar state of facts existed, and there the court held that, under the facts, the relationship of debtor and creditor existed. In commenting upon the nature of the transaction, the court said: “There was nothing in the transaction to establish or create a trust relationship between the plaintiff and defendant. That the transaction augmented the assets of the defendant, if this be true, is not sufficient to entitle plaintiff to a preferential payment of its claim. To entitle it to such preference an agency or trust relationship between plaintiff and defendant must be shown. No such relationship appears.”

The first-mentioned ease is reported in 44 A. L. R., issued in 1926, at page 1631, and in the case note referring to that case and to the case of American Bank v. People’s Bank, supra, the editor says: “The only two cases that seem to have arisen involving the question of whether the balance due other banks on clearing-house settlement is a preferred claim against’the insolvent bank having reached the conclusion that such claim cannot be considered preferential.”

Appellee bottoms its case upon subdivision 7 of § 1 of act 107 of tbe Acts of 1927, the terms of which it is contended, as applied to the facts in this case, establish the agency of the Bank of DeQueen for the reason that the draft drawn and dishonored covered the proceeds of a collection made by the Bank of DeQueen by honoring checks upon itself which were charged to the accounts of depositors who had drawn the checks: The language of that subdivision thought to be applicable is as follows: “A prior creditor * * * shall be (7) the owner of a remittance of the said bank, the proceeds of a'collection made by said bank by honoring a check or other order upon itself or by a charge against the account of its depositor, although the said collection has not had a distinctive identity in the hands of said bank, has not actually increased its cash assets and has resulted in merely shifting its liability upon its books from one of its creditors to another or new creditor, in instances where the said remittance has been presented with due diligence for payment to said bank or its drawee and is not paid, and where the instrument collected cannot be returned by the commissioner to the person who had transmitted the same to said bank for collection, the said instrument having been surrendered by said bank upon its collection in such manner prior to the commissioner taking charge, it being hereby made the duty of said commissioner to reverse the entries upon the books of said bank as to all collections made in such manner in all instances where the said unpaid remittance has been so presented with due diligence and where the said instrument remains in said bank unsurrendered, by which said reversal of entries the said instrument shall be deemed to be from its inception unpaid, and thereupon the said commissioner shall return the said instrument to the person who had transmitted the same to said bank, which return shall be in extinguishment to the extent thereof of the said remittance.” The contention may be best stated in the language of the appellee: “This case turns, * * * on the question as to whether or not, under the facts in this case and the provisions of subdivision 7 of § 1 of act 107 of 1927, the entries involved could have been reversed at the time the deputy bank commissioner offered to return to appellee the checks delivered by it to the Bank of DeQueen two weeks prior thereto, conditional upon appellee paying him $413.71 or returning the checks in that amount drawn on it by its depositors and obtained from the Bank of DeQueen when the appellee and said bank last cleared, which alternative the proof shows it would have then been impossible to comply with because said cheeks had been paid and returned to the persons who drew them.” This statement presupposed that the draft represented “the proceeds of a collection” within the meaning of subdivision 7, supra. Assuming that the statement of fact contained in the quotation from the appellees above that the deputy bank commissioner had been in charge of the Bank of DeQueen two weeks before he offered to return to appellee the aforesaid checks, is supported by the record, and assmning further that at that time it was impossible for the . appellee to return the checks drawn on itself to the persons who had drawn them, we are of the opinion that these facts created no preferential claim, for the reason that appellee is in error in the assumption that the draft represented the proceeds of a collection within the meaning of subdivision 7, supra. Independent of the statute, if the checks received by the Bank of DeQueen were for collection merely, then it would have acquired no title to the proceeds of the same, but would have held them in trust for the appellee. Darragh Co. v. Goodman, 124 Ark. 532, 187 S. W. 673. But this was not the case. These cheeks were received in the ordinary course of business, not for collection but for payment, which was attempted to be effected by charging them to the accounts of the depositors who had drawn them and delivering to the appellee bank a draft for the gross amount of the proceeds less the checks drawn on appellee which it had acquired in the course of business, and the relation of debtor and creditor necessarily arose, which relation would continue as to this transaction until the draft had been honored, and, it not having been honored, that relationship still subsists.

There is nothing in the statute hereinbefore quoted that conflicts with this conclusion, and therefore the general rule stated and the cases of First National Bank v. Farmers’ State Bank and American Bank v. People’s Bank, supra, are pertinent and sustain the view we have taken, which results in a reversal of the case with directions to allow the claim as that of a general creditor. It is so ordered.


text:
    Hastings v. Pfeiffer.
    Opinion delivered December 7, 1931.

      Arthur Sneed and E. G. Ward, for appellant.

      W. E. Spence and W. F. Kirseh, for appellee.
   Butler, J.

A number of claims were allowed by the county court of Clay County in the last half of the year 1930 upon which warrants were issued payable out of the “County Highway Fund.” Between March 7th and April 27, 1931, these warrants were by the appellees, then the owners of the same, presented to the county treasurer for payment, which, being refused, a mandamus proceeding was instituted by the appellees on the last-named date to enforce the payment of said warrants, From the order awarding the writ this appeal is prosecuted.

The facts, about which there is no dispute, may be summarized as follows: The funds arising from the collection by the State of gasoline taxes and automobile license fees allotted to the county, prior to the passage of act 63 of the Acts of 1931, were carried on the books of the county treasurer as the ‘ ‘ County Highway Fund. ’ ’ On a day of a regular term of the county court held on March 7, 1931, an order was made and entered directing the treasurer to keep the funds received by the county under the provisions of said act separate from other funds, and to carry the accounts thereof on his books as the “Clay County'Road Fund,” and directing him to pay out the moneys received only upon warrants drawn on said fund. After said date and order, the moneys received by virtue of act No. 63, supra, were carried on the books of the treasurer in accordance with said order.

At the time of the presentation of the warrants by the appellee, there remained a small balance amounting to about $............in the county treasury to the credit of the “County Highway Fund,” and in addition there was on deposit in various insolvent banks sums due this fund which were not then available, although it was expected that from these deposits payments would be received by the county in the future. The total amount of the warrants presented by the appellees was $4,545.94, and there had been received and placed to the credit of the Clay County road fund sums in excess of this amount which were in the treasury at the time the warrants were presented.

The proportionate amounts received by the counties from the State treasury derived from taxes on gasoline and automobile license fees, etc., is commonly known as “county turnback.” This turnback had its origin in § 21 of act No. 5 of the Acts of 1923, special session of the General Assembly, popularly known as the Harrelson Road Law. That section provided that from the moneys received for gasoline tax, etc., the sum of $3,000,000 should be allotted to the various counties according to the classification therein made, and the allotment was designated at times as “county highway fund” and at others as “county highway improvement fund” with the provision that it should be “by the county court expended upon the public highways of said county, and it shall be the duty of the county court to fairly and equitably apportion the funds so paid into the county highway improvement fund at the option of said court among the various road districts and road improvement districts, or road districts only, in said county for the purpose of constructing and maintaining roads.”

By act 147 of the Acts of 1925, § 21 of act No. 5, supra, was amended in various particulars, but the method of expenditure of the turnback to the county remained as before. By § 2 of act No. 11 of the Acts of 1927, § 21 of act 5, supra, as amended by act 147 of the Acts of 1925, was repealed. In lieu of the provisions of that section, it was provided in § 10 of act No. 11 for aid to the counties by a certain turnback of the State Highway Fund to the counties. The fund to be paid to the counties was designated sometimes as “county highway fund” and sometimes as “county highway improvement funds,” as in § 21 of act No. 5, supra. The purpose of this turnback, as expressed in § 10 of act No. 11, supra, was “for use on the county roads.” The provision of the section directing that the money be expended by the county court at its option, etc., was omitted, and no specific direction made regarding its expenditure. This act was further amended by act No. 18 of the Acts of 1929. Section 9 of that act fixed the amount of the turnback to be allotted to the various counties “for aid to county highway funds.” By subdivisions (e) and (f) of § 1, act 63 of the Acts of 1931, the revenue derived from taxes on motor vehicle fuel, license fees, etc., allocated to the county was designated as the “county highway fund.” By subdivision (h) of § 1 of that act it was directed that the entire allotment of each county, where there were no outstanding road bonds, should be remitted to the county treasurer of each county for credit to the county road fund to be disbursed by the county judge of said county for any of the following purposes: (1) For the building of farm-to-market roads or the maintenance of farm-to-market roads already built. (2) To the payment of maturities of bridge bonds issued by any bridge improvement district created prior to the passage of this act in such amount as the county court or judge hereof (thereof) shall determine.

It is argued first by appellant that the court erred in issuing a temporary injunction restraining the treasurer from paying out any moneys to the credit of the county road fund until the petition for mandamus might be heard, and that on the petition itself no proper notice was given, and that the writ prayed for was illegally awarded because other adequate remedies at law were available to the appellees. It would serve no useful purpose to review the authorities cited in support of these contentions because authority for the proceeding by mandamus is found in the act relied upon by appellees (act 63, supra). Section 7 says: “The provisions of this act liiay be enforced by mandamus by any interested parties.”

The essential question presented is whether or not the writ was correctly awarded on the merits. It is the contention of the appellant that act No. 63, supra, provided for a new and different arrangement in regard to the use and purpose of funds delivered to the various counties for roads. We do not agree with appellant in this contention. Beginning with the passag’e of the Harrelson Road Law a certain part of the moneys arising from tax on gasoline, motor oil, motor vehicle license fees and privilege taxes accruing to the State Highway Funds were allotted to the various counties according to certain classifications. The manifest purpose of the act was to aid the counties in ^he construction and maintenance of county highways. The designation of the funds allotted was not considered by the Legislature as of any great moment for it uses one expression at one time and another expression at another — sometimes “county highway funds,” at others “county highway improvement funds,” and, lastly, as “county .road funds,” all meaning one and the same thing, i. e., a fund to be used by the county in the construction, maintenance or improvement of county highways. This is the purpose for diverting funds from the State Highway Funds to the counties from the beginning of the legislation until and including the Act of 1931, and no other. "We have been unable to find in any text or decision of any court where the expression “farm-to-market” roads has been given a definition, but we are of the opinion that the expression as used in the act of 1931 means any of the public highways of the county leading either directly to, or intersecting, the State highways leading to markets, and under the proof in the case the circuit judge correctly found “that all of the highways in the county road system of 'Clay County, Arkansas, lead from the farms to some market in said county.” They were therefore “farm-to-market” roads.

Attention is called to the emergency clause contained in § 9 of act No. 63, supra, and it is argued that the Legislature intended to restrict the expenditure of road funds allotted to the counties to such improvement or construction as would be made after the passage of the act, and therefore a warrant founded on a claim for improvement or construction made before the passage of the act and before the funds reached the county thereunder was precluded. The language of that clause is as follows: “In view of the existing conditions of the various counties of the State of Arkansas, which by reason of the drouth and financial depression have so retarded the building of roads that it is impossible for the various road districts and counties in this State to keep roads in a safe condition and enjoy equal opportunities in the matter of road transportation, which condition is unsafe and has retarded progress and enforced idleness upon a large portion of our people and jeopardized the safety of the traveling public, an emergency is hereby declared to exist,” etc. In construing this clause, the provisions of the act must be taken into account and the purposes for which the clause was inserted. The reason for the emergency clause was to give immediate effect to the act, and with this in mind we do not think that the clause warrants the construction placed on it by the appellant.

We are of the opinion that it is immaterial by what name the fund was called where it is shown, as in this case, that the “county highway fund” and the “Olay County Road Fund” were received from the same source, derived from the same character of taxation and devoted to the same purpose. We conclude therefore that the judgment of the trial court was correct, and it is affirmed.


author: Smith, J.

text:
    General Motors Acceptance Corporation v. Sanders.
    Opinion delivered December 14, 1931.

      Barber Henry and Troy W. Lewis, for appellant.

      R. W. Robms, for appellee.
   Smith, J.

Appellee owned a •second-hand automobile, which he traded to a .dealer named Hartou, at Conway, as part payment for a new sedan. According to the testimony of appellee, the trade was made on January 2, 193-0, at which, time he signed a blank sales contract. He was allowed a credit of $500 for his old car, and was to- pay -a balance, including* carrying charges, of $491, payable at the rate of $41 per -month for eleven months and at the end -of the year a twelfth payment of $40. The first and second payments of $41 each were made promptly by appellee to Hartón, and a payment of $31 was made upon the third installment, leaving* a balance of $10 due thereon.

The sales contract, which was assignable but not negotiable, was assigned by Hartón to appellant, General Motors Acceptance Corporation, hereinafter referred to as the company, and that company seized the sedan and sold it in satisfaction of the balance claimed by it to be due. The title was reserved in the sales contract until the balance of purchase price was fully paid and the right to retake the car was given. The company sold the car at private sale’and credited the proceeds thereof on the balance due on the purchase price. •

Under the sales contract as filled in by Hartón and as it read at the time of its assignment to the company, it was dated May 19,1930, and required twelve payments to- be thereafter made aggregating $491. Sanders contended that the contract had not been correctly filled in as to its dates, that is, that it should have been dated as of the date it was made, to,-wit, January 2,1930, and that had it been correctly dated it would have shown that only twelve monthly payments were to be made after the delivery of the car. On the other hand, Hartón contends that the contract bore the correct date; that the dating of the contract had been postponed so that the deferred payments at $41 per month would cover only one year, and that this was done because the company would not buy a contract which provided for payments extending beyond one year. In other words, the question of fact in the case is whether there was an agreement, not expressed in the contract of sale, whereby Sanders was to make three payments in addition to the twelve provided for in the sales contract.

Sanders made default in Ms payments, and this fact would ordinarily have authorized the company to repossess the ear, but before it was taken from him he offered to make his past due payments provided he was given credit for the three made to Hartón. This the company declined to accept.

Under the contract the company had the right to retake the car and sell it publicly or privately, provided Sanders had made default in his payments. But the company did not have the right to retake and sell unless there was default. This question of fact is of controlling importance, and has been decided by the jury in Sanders’ favor. Sanders testified that he signed the sales contract in blank under the assumption that the dates would be correctly filled in, and that he was promised a copy of the contract, but the copy was never given him.

As we have said, the contract was assignable, but not negotiable, and any defense which could have been made to a suit thereon by Hartón could also be made against Ms assignee. It was said in the case of General Motors Acceptance Corporation v. Salter, 172 Ark. 691, 290 S. W. 584, which case involved a contract identical with the one here in suit and in which case the appellant here was also a party, that, “since the instruments were not negotiable, but assignable only, appellant took them subject to all defects or infirmities available to the maker as a defense against the payee therein.”

According to the recitals of the contract of sale, only twelve payments were contemplated after the delivery of the car, and it is admitted that three payments had been made less $10, but Hartón insists that these three payments were to be made in addition to the twelve monthly payments required by the contract. According to Sanders, there was no error in the number of deferred payments as recited in the contract, and the controversy arose out of the act of Hartón in inserting’ a date after the contract had been signed by Sanders contrary to the facts and to the agreement of the parties. In the case of Pictorial Review Co. v. Rosen, 171 Ark. 719, 285 S. W. 385, a very similar question arose, and it was there said:

“In such cases this court has recognized that, where the party who was trusted to write the contract omits some of its terms, or inserts provisions not agreed to by the parties, such conduct constitutes fraud and makes the contract void. (Citing cases.) ’ ’

If, as the jury has found, the company refused to accept the past due payments and seized the oar and sold it without right so to do, then it is liable for damages for the wrongful conversion, the measure thereof being the actual market value of the car (and not the price for which the company sold it privately), less the unpaid purchase price. Roper Wholesale Grocery Co. v. Favor, 8 Ga. App. 178, 68 S. E. 883; Smith v. Goff, 39 R. I. 437, 72 Atl. 289; Goggan v. Garner (Tex.) 119 S. W. 341; Clark v. Clement, 75 Vt. 417, 56 Atl. 94.

Damages appear to have been assessed in Sanders’ favor in conformity with this rule, and, as the testimony sustains the finding that the car was wrongfully seized and sold, the judgment of the court below must be ■affirmed, and it is so ordered.

Kirby, J., dissents.


text:
    Taylor v. Cooper.
    Opinion delivered December 14, 1931.

      Sam Rorex, N. R. Hughes and Trieber d Lasley, for appellant.

      Cockrill d Armistead, for appellees.

      Rose, Hemingway, Cantrell d Loughborough, for interveners.
   Smith, J.

A suit was instituted by the heirs of J. H. Laster, deceased, for the purpose of partitioning a large body of land owned by their ancestor. The Exchange National Bank filed an intervention praying* the foreclosure of mortgages held by it on the lands and personal property then in the hands of the receiver. Upon the <m:otion of the bank the acting* receiver was discharged and C. M. Connor, an active vice president of the bank, was appointed receiver, who qualified as such and took possession of all the property.

Oonnor, as receiver, was directed by the court to conduct and operate the commissary and gin on the lands and to farm the lands during the year 1930. To execute this direction the court authorized and ordered the issuance of receiver’s certificates in the sum of $50,000, and $20,000 additional of such certificates were later authorized. The orders of the chancery court authorizing the issuance of these certificates provided that the certificates should be secured by all the live stock and personal property in the possession of the receiver and of all the crops to be grown and raised on the lands owned by the deceased and to secure such certificates by a pledge “of all the income, profits and avails” of the receivership arising by reason of the farming of said lands and the operation of the commissary and gin.

The order of the court authorizing the issuance of the certificates provided that they should be made payable on or before December 1, 1930, and should be issued from tirnle to time in such amounts as in the judgment of the receiver and John M. Davis, president of the Exchange National Bank, might be necessary. The certificates could be issued only upon the countersignature of Davis. These certificates, when issued, were cashed and held by the bank, and when the first $50’,000' of certificates had been issued and .cashed by the bank a court order was obtained authorizing an additional issuance of $20,000 in certificates, it being agreed by the bank that this last issue should.be upon a parity with the first issue of $50,000 and should have the same security.

The testimony in the record makes it clear that this was all done for the benefit of the bank. It held a second mortgage and desired to postpone the foreclosure of the prior mortgage. It did mot want to choose between the loss of its security by the foreclosure of the prior lien and having to assume and pay that lien. In the effort of the bank to carry on and to postpone the foreclosure of the prior lien, the bank desired the receivership and caused one of its active vice presidents to be appointed receiver, and had cashed and held all the certificates which that officer issued as receiver.

Upon Connor’s appointment as receiver, he employed A. C. Slaughter as plantation manager, and J. H. Rozzell as assistant manager, and G. T. Purinton was appointed manager of the commissary and bookkeeper. After making these appointments, the plantation and commissary were practically turned over to the appointees, who operated in the manner hereinafter stated. Purinton made all purchases for both the commissary and the plantation. R. PI. Thompson was an active vice president of the bank, and Connor testified that whenever Slaughter came to the bank to discuss any question concerning the operation of the plantation, he was sent by the witness to Thompson. The bank’s control of the business appears to have been almost as complete as it would have been had it owned the property or had itself been the receiver. Connor testified that Purinton made all purchases aud drew checks signed by himself in pajunent, which were brought to witness for his signature as receiver. Ordinarily in paying these bills Slaughter and Purinton would come to the receiver’s office, which was in the bank, and would then be sent to Thompson’s desk to check over the bills and invoices.

At the beginning oí the season two tractors were purchased, upon which the receiver made a cash payment of $800 and for which he signed two title-retaining* notes each for the same amount, and these notes were included in the accounts presented by persons hereinafter referred to as interveners.

About July 1, 1930,’ Purinton furnished Oonnor a statement of outstanding accounts, and Connor testified that he was amazed to learn that all the receiver’s certificates which he was authorized to issue had been .sold to the bank, and that it would require eight or nine thousand dollars additional to finish the crop. Among the bills then due and unpaid was one of the Punkett-Jarrell Grocery Company, which company had the assurance of both Connor and Thompson that this bill would be paid.

■Slaughter, the manager, testified that, while Purinton made all purchases, he did .not buy anything without consulting witness and having the authorization of witness to make the purchase, and that bills covering such purchases were submitted to Thompson, the vice president, or to Davis, the president, of the bank.

Purinton’s purchases appear to have exceeded the-expectations of the officers of the bank, but this excess of expenditures appears to have resulted not from a lack of authority on the part of Purinton, but from a lack of supervision and direction on the part of the bank’s officials to whom Purinton made report.

Purinton testified that, about August 2d he took a list of outstanding -and unpaid 'accounts to Davis and Thompson amounting to about $3,300, and he was informed by Davis’ secretary that only about $1,980 was available to pay these bills, and he was then instructed by both Thompson and Dams to go to the concerns from which he had made the purchases in question “and see how many of these accounts you can stave off. and ask them if they will continue to sell the plantation the things needed for the operation of the store and the farm, until the first cotton can be harvested, at which time we null pay these bills before taking* up receiver’s certificates.” Witness obeyed this direction faithfully, as he testified. Purinton further testified that, on October 7, 1930, he took to Connor a list of the bills here involved, and Connor conferred with Thompson as to whether they should sell enough cotton to pay them. After this conference, Connor directed witness to tell Slaughter to- sell enough cotton to pay the bills, but this order was countermanded the following day, and Purinton returned to Little Rock for further conference with Connor and Thompson. He was thereafter directed by Thompson and Davis to go to the various creditors and inform them that the cotton would be sold in October, and their accounts would be paid probably by the 1st of November, and not later than the.15th of that month, and witness so advised the creditors, and on November 1st he was advised by Thompson to buy no- more goods and issue no more checks.

The claim of the Plunkett-Jarrell Company was in no manner different from that of the other creditors herein referred to as interveners, and on November 14th this claim was paid by a check drawn on the American Exchange Trust Company, this being the bank with which the Exchange Bank had merged.

The American Exchange Bank closed its doors the day after the Plunkett-Jarrell account was paid, and the affairs -of the bank were taken -over by the State Banking-Department, and among the assets found on hand were the receiver’s certificates herein set out.

The creditors whose accounts were- incurred, as herein stated, after the proceeds of the sale of the receiver’s certificates had been exhausted, or most of them, filed interventions in the chancery court where the receivership was pending, in which they prayed that they be first paid out of the proceeds of the cotton grown by the receiver before the receiver’s certificates were ordered paid, there being insufficient funds on .hand to pay all creditors. This prayer was granted, and the claims of the interveners were ordered first paid, and this appeal is from that decree.

We think, under the facts as summarized, that the Exchange Bank waived the right to insist on the prior payment of the receiver’s certificates which it owned at the time of the consolidation of that hank with the bank which after the consolidation was known as the American Exchange Bank. It is true the court authorized the issuance of the receiver’s certificates, and did not authorize the debts due interveners to be incurred, but the debts due the interveners were incurred under the authority of officers of the bank who were in control of the receivership. If the receiver’s certificates were otherwise owned than by the bank, a different question would be presented from the one we have for decision, but the Exchange Bank and the bank which succeeded it has at all times owned these certificates, and the consolidated bank took therefore, just such title as the Exchange Bank originally had.

So therefore the question for decision appears, in effect, to be whether the bank shall, as holder of the certificates, be first paid, or whether persons who are, in effect, creditors of the bank, shall be first paid, and we answer by saying that the bank’s creditors rather than the bank itself should be first paid.

Of course, the interveners are not technically credi- ‘ tors of the bank, but it is nevertheless true that in incurring these obligations Purinton was acting for the bank, as well as for the receiver. The total credit which the court had authorized the receiver to use had been exhausted, and, without obtaining further authorization to borrow money, the officers of the bank directed Purinton to incur obligations and to make promises of payment and to obtain indulgence in payment. Indeed, the account paid to the Plunkett-Jarrell Company was .as to many of its items identical with that of the interveners, and differed only in that it was larger than the claims of all the interveners combined. There was no greater obligation, nor any more authority, to. pay the Plunkett-Jarrell Company than there was to pay the claims of interveners, and we conclude therefore that the court below was correct in holding that the claims of the interveners should be paid prior to the receiver’s certificates, and that decree is affirmed.


author: Humphreys, J.

text:
    Pearl City Packet Company v. Towery.
    Opinion delivered December 14, 1931.

      Buzbee, Pugh S Harrison, for appellant.

      J. F. Parish and W. B. Donham, for appellee.
   Humphreys, J.

Appellee brought suit in the circuit court of Jackson County to recover damages for injuries received from a falling derrick while engaged in the performance of his duties as an employee of appellant. The allegation in the complaint upon which appellee based his action was that appellant “negligently furnished a foundation, supports, and attachments for its derrick and boom which were old, defective, rotten and insecure.”

Appellant filed an answer denying the negligence alleged.

The cause was submitted upon the pleadings, testimony, and instructions of the court, resulting in a verdict and consequent judgment against appellant, from which is this appeal.

Appellant concedes for the purposes of this appeal that testimony was introduced from which the jury might have found that the foundation supports of the derrick which fell upon and injured appellee were defective, hut contends that the court erred in admitting testimony tending to show a defective condition of holts at the top of the masthead or derrick sixty feet above the foundation, for the reason that the allegation of negligence was not broad enough to cover defects in attachments on other parts of the derrick than the foundation. The meaning of the allegation is clearly that the foundation, the supports, and attachments, all three, were old, defective, rotten and insecure. It would indeed be a narrow construction to say that the allegation meant that the attachments to the foundation only were alleged to be defective. Unquestionably “attachments,” as used in the allegation, referred to attachments to any part of the derrick. It was proper, under the allegation, therefore, to admit testimony relating to the defective condition of the attachments on any part of the derrick. Another objection to the admission of the testimony showing a defective condition of the bolts at the top of the masthead was that all witnesses interrogated on the point stated that the condition up at the top did not cause the derrick to fall. This was necessarily opinion evidence only, based upon the fact that the bolts in the masthead did not break. All the witnesses familiar with the operation of the derrick stated that the bolts at the top had do be replaced often on account of shearing off and becoming so small that they caused a vibration or wobbling of the derrick when in operation. The derrick had been.used for years. It carried four or five thousand pounds when in operation, and the strain upon its supports and attachments was great. It was partly held in place by well anchored cables. Although the witnesses were of opinion that the bolts at the top did not cause the derrick to fall, yet the jury may have held a different opinion. The jury may have concluded that the vibration caused by the looseness of the bolts caused the cable to give way and one of the stiff legs or main supports to break and the foundation to collapse. One thing is certain, and that is that the derrick fell on account of defects either in the foundation or supports or attachments, and for that reason it was allowable and within the allegation of negligence to prove defects in either the foundation or in the supports or attachments wherever located.

No error appearing-, the judgment is affirmed.