Volume 132 — Arkansas Reports

B. Baker, Judge; 1. The court erred in directing a verdict for defendant ; it should have directed a verdict for plaintiff. Under the testimony it was a Missouri sale and not illegal, even though compliance had not been made with the laws of this State. The delivery of the goods to the carrier is the place of sale. 44 Ark. 556; 50 Id. 20; 78 Id. 123; 79 Id. 456; 91 Id. 422; 94 Id. 318; 92 Id. 387; 51 Id. 133; 53 Id. 196; 22 B. R. A. 425.

Francis Circuit Court; J. M. Jackson, Judge; 1. Plaintiff was the owner of the lot and defendants entered as tenants and can not dispute her title. 89 Ark. 368; 63 Id. 94; 77 Id. 556; 36 Id. 451; 83 Id. 57. Her tax deed, if void, was color of title .and seven years’ payment of taxes on unimproved and unenclosed land gave title. Kirby’s Digest, § 5057; 70 Ark. 483; 80 Id. 82; Plaintiff made out her case and it was error to direct a verdict. 1. Plaintiff’s tax deed was void.

J. Driver, Judge; 1. Appellant was not negligent and was not liable for any negligence of the physician selected to take charge of the case after he was compelled to leave. 181 S. W. 157; 12 Negl. Comp. Cas. Ann. 882; 65 Ark. 580; 38 Mich. 501; 93 Am. St. 665; 27 L. E. A. (N. S.) 1174. 2. The verdict is excessive. 55 Am. St. 606. There is no evidence to sustain it. 70 Ark. 386; 24 Id. 224; 10 Id. 309; 7 Id. 462; 79 Id. 609. 3.

M. Jackson, Judge; 1. The contract of June 30 was abrogated and replaced by a subsequent contract made by a representative of appellee, who had authority to make the same. As the evidence was at least conflicting the matter should have been referred to a jury. 2. Appellee is estopped to deny Briekey’s authority to change the contract. 1. Appellant seeks a reversal on a theory not in issue in the court below. 104 Ark. 276. 2. He was not misled.

Cochran, Judge; No law of this State can be extended by reference to the title only. The statute must be re-enacted. Const. Art. 5, § 22. The act is unconstitutional and void. 126 Ark. 260; 92 Id. 155; Kirby’s Digest, § 2248. Confesses error. 64 Ark. 83; 102 Id. 411; 103 Id. 298; 49 Id. 131; 52 Id. 290; 92 Id. 155.

A. Falconer, Chancellor; 1. The evidence of T. J. Clark was inadmissible. 95 Ark. 155; 85 Id. 64; 2 Elliott on Ev., § 822. 2. The evidence is insufficient and based solely upon conjecture and inference. The destruction was accidental and created no liability against the ginner. 70 N. C. 596: 64 So. 269; 75 S. E. 943; 50 So. 595; 73 Atl. 565; 140 HI.

M. Jackson, Judge; 1. It was error to dismiss as to the bank. The error is apparent from the record. 56 Ark. Law Rep. 219. 2. The suit was not barred. It was brought within three years after plaintiff had notice of the collection, and demand and refusal to pay. 7 Ark. 449; 24 Id. 385; 25 Id. 462; 25 Cyc. 1086; 8 Ark. 429; 29 Id. 99, 108; 64 Id. 165; 10 Id. 228; 32 Id. 131. STATEMENT OP PACTS. The appellant instituted this suit against the appellees.

H. Evans, Judge; The verdict is excessive and under the undisputed evidence, no liability was shown. 84 Ark. 311. No negligence was shown, nor proof of overloading or crowding. The facilities were ample and the plaintiff had charge of the loading. He knew the train would not arrive until 9 o’clock. The verdict is not supported by the evidence. The verdict is not excessive and is .amply .supported by the evidence. Negligence was shown. 88 Ark. 138.

H. Evcms, Judge; 1. The council had the right to open the street and to contract for work and materials necessary. Kirby’s Digest, § 5466. Also to delegate this right to its street committee. 105 Ark. 506. 2. The action of the committee was ratified by the city. 87 Ark. 389; 61 Id. 397; 67 Id. 236; 81 Id. 244 ; 82 Id. 531; 81 Icl. 143. 3. The verdict is contrary to the law and evidence. Instruction No. 8 should have been given.

E. Dudley, Judge; 1. The verdict is not supported by the evidence. There is no proof of the agreement by which Coffman was discharged from liability and that-Mueller became solely liable, or of the delivery to Mueller as collateral security of certain notes and mortgages. 130 Ark. 374. The evidence at least is vague and conjectural. Really the evidence shows that no notes and mortgages were transferred to Mueller.

Worthington, Judge; 1. A verdict should have been directed for appellant. The railroad is liable unless it shows that the property was placed on its platform without its consent, or solely upon the condition that the company shall not be liable for damages. 86 Me. 422; 31 Ind. 143; 77 Id. 322; 27 S. W. 728; 120 Ark. 595. See also 8 Allen 438; 91 U. S. 454 ; 86 Ark. 289. 2. Plaintiff’s instruction No. 2 should have been given as asked, without modification. 12 S. W. 843. 3.

R. Ilaynie, Judge; 1. It was error to direct a verdict for Pleas Allen, the gift was testamentary in its character, and not a gift inter vivos. The verdict is not supported by the evidence. 110 Ark. 117. 2. The court erred in giving instruction No. 3. It is not the law, and repugnant to the other instructions. The word “otherwise” covers everything on earth save only a gift.

W. Hendricks, Judge; 1. Roberts was at least a de facto alderman, and his acts are valid and binding and can not be collaterally attacked. 38 Conn. 449; 9 Am. Rep. 409; 25 Ark. 336; 55 Id. 81; 1 Dillon, Mun. Corp. (4 ed.), $ 276; 52 Mo. App. 540; 24 Wend. 520; 47 N. J. L. 383; 48 Id. 613; 10 Okla. 741; 54 L. R. A. 513; 131 Ky. 537; 115 S. W. 772; 61 Vt. 616; 49 Ark. 439; 3 Head (40 Tenn.) 690; 48 Me. 79; 96 Pa. 344; 121 N. W. 614. 2.

M. Jackson, Judge; 1. It was error to direct a verdict for appellees. There was an issue of fact to be submitted to a jury. 112 Ark. 305; 126 Icl. 257; Act No. 81, Acts 1913, § 137. A verdict was properly directed as there was no question of fact for a jury. 126 Ark. 257; 57 Id. 561; 69 Id. 562; 97 Id. 4-38; Act 81, Acts 1913. There was no legal evidence of liability.

A. Falconer, Chancellor; 1. The chancellor erred in his construction of the statute as to the widow’s dower. The estate was a new acquisition, and as between the widow and collateral heirs the widow was entitled to one-half of the gross amount of the estate, personalty, realty and rents. Kirby’s Digest, § 2923; 75 Ark. 240; 116 Id. 427; lb. 400. 2. The amount found in the decree is erroneous under the theory adopted by the court.

Smith, Judge; 1. The court erred in refusing to give instruction No. 3 for defendant on assumed risk. 97 Ark. 486; 81 Id. 343; 56 Id. 206; 96 Id. 387; 87 Id. 321. 2. Also in refusing No. 4, asked by defendant. The suit was barred. Acts 1913, No. 175. Limitation was pleaded. 3. It was error to give No. 3, asked by plaintiff; also No. 4. Plaintiff knew of the danger and risk and assumed it.

C. Trimble, Judge; 1. On January 31 plaintiff was tendered a check for his wages. He did not demand interest, nor refuse the check because a few cents interest was not included. The tender of wages without interest stopped the running of the penalty, and plaintiff’s recovery was limited to $52.71, his wages, and $27.36 penalty. Kirby & Castle’s Digest, § 5464; 64 Ark. 83; 96 Id. 634; 93 Id. 497; 76 Id. 326.

P. Henderson, Chancellor; The note was void for usury. 41 Ark. 331; 83 Id. 31, etc. There was no usury. 35 Ark. 217; 55 Id. 143; 56 Id. 334; 67 Id. 426; 99 Id. 626. The chancellor so found and his findings are not against the preponderance of the evidence.

R. Haynie, Judge; 1. It was error to admit certain checks and papers in evidence on which appellant’s signature appeared: This was prejudicial.. 32 Ark. 337; 62 L. R. A. 836, and note; 2 Elliott on Ev., par. 1105; 6 Enc. of Ev. 410. 2. It was error to admit a letter purported to have been written by appellant. Appellee’s testimony is very unsatisfactory. The first note was a forgery and the signature to the second promise was obtained by fraud.

W. Hendricks, Judge; 1. The act under which the lien is sought does not cover that class of supplies sold by appellee. Kirby’s Digest, § § 5013-14; 127 Ark. 433. 2. Appellee is not entitled to a lien for articles sold more than ninety days before filing his claim. 27 Cyc. 144. 3. If entitled to a lien at all, it should only have been on each car for the specific articles furnished for each car. 4.

B. Baker, Judge; 1. The contracts sued upon are similar to the one sued upon in 124 Ark. 539. The appellant had complied with the laws of Arkansas, and this was shown by the certificate of th(e Secretary of State. It was error, therefore, to submit to the jury this question. 122 Ark. 451, Act No. 313, Acts of 1907. 2. Argue the merits of the cause alleging many errors. 1. The certificate of the Secretary of State was not admissible in evidence.

Defendant was charged as a principal in larceny. Kirby’s Digest, § 1821; 37 Ark. 274; 41 Id. 173. It is only persons who are present aiding and abetting or consenting to aid and abet who can be indicted as principals. 55 Ark. 593. Hence it was error to refuse instructions 1 and 2, asked by defendant. 2. Nos. 5 and 6, given on the court’s own motion, were erroneous. There must be a felonious taking from the owner and asportation. 79 Ark. 333; 110 Id. 606. 3.

Barker, Chancellor; Whether the deed was voluntary and fraudulent is a question of fact. The law is that such deeds are voluntary, and places the burden on the wife to show a valid consideration free from fraud. There is no conflict in the evidence. The wife was able to buy, and the testimony shows she paid in all over $2,000 for the land. No intent to defraud creditors is shown. The decree of the chancellor is contrary to the preponderance of the evidence.

Ilaynie, Judge; 1. There was no evidence to support the verdict. The court narrowed the inquiry of the jury to the question whether or not the appellant was guilty of an assault with intent to kill.

Humphries, Chancellor; 1. It was error to sustain the demurrer. The court had jurisdiction. The widow’s dower was assignable and enforceable by the assignee. 2 Lawson, Bights, Bern. & Pr., § 773; 12 Ind. 37; 74 Am. Dec. 200; Kirby’s Digest, § 2708; 62 Ark. 61; 2 Scribner on Dower, 42, 47; § § 33, 38; 84 Ark. 558. 1. The court was without jurisdiction. Kirby’s Digest, § 1340. 2. Appellant’s remedy at law was adequate. Kirby’s Digest, § 2708; 116 Ark. 400, 427; Bisph. Eq.

W. Smith, Judge; 1. The evidence is not legally sufficient to sustain the verdict. There is no evidence that appellant sold any whiskey, or that he was interested in the sale of any. 23 Cyc. 284; 124 Ark. 585; 67 Ark. 163. 2. It is the duty of the eourt to set aside the verdict when it is against the weight of the evidence, and not wai'ranted by the evidence. 98 Ark. 336; 65 Id. 279; 106 S. W. 1125; 29 Cyc. 832.

J. Driver, Judge; 1. The dismissal of petitioner’s appeal was without prejudice to any other remedy by the State. The matter is not res judicata. 52 Ark. 376; 11 Id. 621; 29 Id. 318; 54 Id. 551; 16 Tex. 590. 2. The State is a necessary party under the Act of 1913. A judgment without notice is void. 93 Ark. 274; Acts 1913, 837-840. 1. See. 13 Acts 1913, 835, etc., provides for no adversary proceeding. The State is not a necessary party.

C. Trimble, Judge; All the land owners were parties to the suit. No written complaint was necessary and the right to appeal is absolute under the Act. Kirby’s Digest, § 1487; Acts 1913, 738; 34 Ark. 240; 51 Id. 159; 77 Id. 586;' 95 Id. 385; 117 Id. 4; 91 Id. 81; 90 Id. 219; 117 Id. 292; 126 Id. 211; 122 Id. 255, etc. See also, 43 Ark. 33; 35 Id. 298; 100 Id. 496; 101 Id. 106. Appellants failed to comply with the Act.

McMahon, Chancellor; 1. This suit was filed under the attorney’s lien Act. Acts 1909, p. 892. No cause of action was stated and the demurrer should have been sustained. 65 Ark. 495; 64 Id. 510; 103 Id. 103. Plaintiff performed no service in the Benton chancery court and had no lien. 27 Ark. 369; 15 S. W. 363; 55 Ark. 546. No relief should have been given, as no equitable jurisdiction was shown. 16 Cyc. 111-127; 37 Ark. 164; 105 Ü.

H. Dudley, Judge; Kepley was not the agent of appellant, had no authority to go after the mule, nor borrow money to pay expenses. Appellant is not liablé. 105 Ark. Ill; lb. 446; 53 Id. 208; 92 Id. 315; 111 Id. 345; 113 Id. 190; L. R. A. 1915 A, 686; 126 Ark. 405. : The instructions are correct. The evidence is legally sufficient. Kepley was acting within the scope of his agency. 82 Ark. 503; Mechem on Agency (1 ed.), § 167, p. 109; 124 Ark. 360; 117 Id. 176 ; 111 Id. 229.

Elliott, Chancellor; 1. Thane never had any title to the lots. They were deeded to him as trustee and he conveyed to Remmel in his individual capacity by a-quitclaim deed. Such a deed is always suspicious. The deed to Thane was only a mortgage, and the debt had been paid. Neither Thane nor the bank had anything to convey to Remmel, and the quitclaim deed conveyed nothing;' as Remmel had notice and the mortgage debt had been paid.

Coleman, Judge; 1. The question of ownership was one of fact for the jury. If Pender was to collect and credit upon a debt due by appellant to him, he would be a mere agent and the suit was properly brought in her name. Bliss on Code PL, § § 56-8. Mrs. Haney was the only proper plaintiff and entitled to relief. 48 Ark. 355. Fender had a mortgage on the land. He should have been made a party. 74 Ark. 54; 49 Id. 100. 2. Instructions 4 and 5 are inconsistent.

Shaver, Chancellor; 1. The chancellor erred in finding that appellant knowledge of the contract and was bound to carry it out is no allegation to that effect and no proof of it. 43 Ark. 303; 11 Id. 134; 29 Id. 500. 2. The chancellor’s finding that appellant had full knowledge of the contract and was bound to carry it out is against the evidence. 102 Ark. 383; 102 Id. 685; 104 Id. 475. 3.

Martimeau, Chancellor; 1. Appellees were both guilty of fraud. 71 Ark. 277. 2. Scroggin was the agent of Hutto and of appellant, a double agent, and his acts are binding upon both. 31 Cyc. 1458; 71 Ark. 277; 2 Pom. Eq. Jur. 884, 959; 31 Cyc. 1244; 1 Parsons Cont. (5 ed.) 73. 3. Hutto was appellants’ agent and he is estopped from disclaiming his agency. 31 Cyc. 1244; 21 L. R. A. 55; 90 Ark. 301; 17 N. J. Eq. 554. 4.

Cross-appeals from Union Chancery Court; James M. Barker, Chancellor; 1. Appellees were not entitled to a perpetual injunction; “they had no title to the land and had not been in possession long enough to claim by adverse possession. 22 Cyc. 750; 15 Cal. 496. 2. Appellant having a lien for taxes was entitled to possession. Kirby’s Digest, § 2759; 84 Ark. 587; 1 Story, Eq. 483; Whittaker'on Liens, 68; 30 Ark. 122. 3.

B. Sorrells, Judge; 1. No binding contract was ever entered into. The two telegrams were not sufficient and the letter of confirmation did not contain the same terms set out in the offer. The court erred in its instructions .and in submitting the case to the jury. The court should have construed the contract. 77 Ark. 261; 89 Id. 239; 97 Id. 613; 95 Id. 421; 121 Id. 150; 112 Id. 380. 2.

Elliott, Chancellor; 1. Bailey was an innocent, purchaser and had no notice of Ford’s claim, actual or constructive. Nor is he affected by the lis penclens. 25 Cyc. 1469-70; 2 L. R. A. 50; 25 Cyc. 1470; Ám. Cas. 1915 C. 15; Kirby’s Digest, § 5149; 21 A. & E. Enc. Law 646; 40 Am. St. 354; 7 A. & E. Ann. Cases 1090; 105 Kv. 63; 12 Pac. 537; 131 111. 376; 73 Id. 477; 2 Devlin on Deeds, § 799. Bailey was not an innocent purchaser. 39 Cyc. 1687-8; 95 Ark. 582; 200 U. S. 321.

B. Priddy, Judge; 1. There was no transcript filed in the circuit court of Conway County and it had no jurisdiction. The transcript was imperfect and there were file marks showing-it was filed. Kirby’s Digest, § § 2326-7-8; 38 Ark. 221; 36 Id. 237; 48 Id. 94; 72 Id. 145; II. 613; .102 Id. 653. There is no such courfas the Morrilton Circuit Court. 2. Appellant should have been acquitted on the testimony.

W. Hendricks, Judge; 1. The contract of arbitration was in its nature irrevocable. 49 Atl. 738; 197 Pa. St. 404; 18 Phila. 307; 76 Ark. 153. 2. The award was never in fact revoked. The submission was in writing and the revocation must also he in writing. 5 C. J. 57; 1 Caldw. (Tenn.) 197. Notice must be given. 68 S. E. 902; 5 C. J. 58; 2 E. C. L. 368. 3.

The payment or charge for interest prior to the time the money was received and the payment of a commisison to Brown and the expenses of McRaven constitute usury. Webb on Usury, § 308, and note 1; 29 Cyc. 956 and notes 27-8-9; 54 Ark. 566; 29 Cyc. 975 and note 21; 105 Ark. 653. 1. The loan is not usurious. 129 Ark. 167; 74 Ark. 241; Webb on Usury, § 219. 2.

D. Frierson, Chancellor; 1. Disinheritance of children by a parent must be traced to one or more of three causes: (1) Estrangement of parent from child; (2) some form of insanity; (3) fraud. No estrangement nor insanity is shown. But fraud and overreaching are shown by many strong circumstances and declarations of parties. The declarations of the grantors were competent evidence. 123 Ark. 134; 99 Mass. 88; 61 N. E. 426; 2 Id. 925. 2.

Elliott, Chancellor; 1. The act is void. The bill was not read for the third time and the vote was not taken by yeas and nays, nor entered of record in the journal. Only the journal as filed with the Secretary of State can be looked to. Const. Art. 5 § 21. 33 Ark. 17. The memoranda and minutes of the officers can not be considered but only the journal. 160 Ala. 181; 119 Id. 487; 76 Atl. 370; 90 Ark. 174. . . 1.

B. Baker, Judge; Claim should have been allowed. Acts 1911, No. 296. 66 Ark. 30 is the law of this case and settles it. 66 Ark. 30 is not applicable. Here tbe act is different. It requires a settlement once a year at tbe July term. The appellant’s excess of salary was properly covered into tbe treasury. Each year is separate to itself and an excess of salary paid at the end of one year can not be reclaimed to cover a deficit in salary in another year. Acts 1911, p. 808.

liaynie, Judge; 1. The railway company and receiver were liable, without proof of negligence, for damages by .fire, whether it originated from the operation of trains, or was caused by servants in the line of their employment whether from acts of. commission or omission. Acts 1907, p. 336; 120 Ark. 595, 600. 2. The court erred in not giving appellants’ first instruction as requested and in inserting the word “negligently.” 115 N. Y. 579, 5 L. R. A. 591; 112 Ark. 298, 300. 3.

A. Falconer, Chancellor; 1. M. C. Burke was not insolvent at the time of the alleged trasfer and there is no evidence of fraud, actual or constructive. 2. All the property transferred to the Union Realty Company, as well as other property held to he fraudulently conveyed was bought with the funds of Burke Bros. 3. Lot 3, block 45 Fitzgerald’s Addition did not belong to M. C. Burke. But he was solvent at the time of the conveyance.

H. Dudley, Judge; It was error to direct a verdict for appellee. The master was clearly liable as Breysacre was acting within the scope of his authority. The case should have been submitted to a jury. 42 Ark. 553; 58 Id. 386; 131 S. W. 971; 88 Id. 582; 6 Labatt, Master & S., § 2348; 93 S. W. 600; 52 Icl. 834; 18 So. 923; 122 N. W. 486; 58 S. E. 609. The whole transaction was one and the same. The court properly directed a verdict.

Barker, Chancellor; 1. The directors were liable for mismanagement and neglect. 129 Ark. 416; 168 N. Y. 157, 110 Ark. 40; 92 Id. 327. 2. No demand on the president and board of directors to bring this suit was necessary, as they were the guilty parties. 96 Ark. 281; 126 Ark. 72; 2 Cook on Corp., § 701. 3. The suit was not barred by limitation. Plaintiffs had no knowledge of the loss. 71 Ark. 382; 196 S. W. 803; 39 L. R. A. (N. S.) 173; 97 N. E. Rep. 897. • 1.

A. Falconer, Chancellor; 1. The decree should be reversed on the evidence alone. The parties dealt at arm’s length with each other. The deal was made after due investigation and full knowledge of all the facts. There was no fraud nor false representations made by appellant. No offer to rescind was made nor effort to put appellant m statu quo. 24 A. & E. Ene. L., 625; 6 Cyc. 312-314.

H. Dudley, Judge; 1. The verbal promise ito advertise, if one was made, preceded the signing of the contract and was merged therein. 129 Ark. 354; 75 Ark. 206; 94 Id. 120. Parol testimony is not admissible to contradict or vary or add to any of the terms of a written contract. 196-S. W; 800; 83 Ark. 283; II. 240; lb. 105; 80 Id. 505; 20 Term. 415. Faulkner liad no authority to make the advertising contract, but if he had, that was an independent contract or obligation.

Elliott, Chancellor; 1. The tax sales were regular and made according to law. The commissioner’s deed was duly acknowledged and recorded. Kirby’s Digest, 760-1. It -was prima facie evidence of the legality and regularity of the sale. The decree and deed were duly approved and confirmed and there were no irregularities in the road district suit. 28 N. E. 57. 2.

T. Humphries, Chancellor; 1. Horseshoe is a navigable lake. 119 Ark. 377. 2. The water and beds of navigable lakes and the fish and fowl therein are the property of the State. 3 How. (U. S.) 212; 20 Id. 84; 107 U. S. 678; 206 Id. 46; 146 Id. 387; 242 Id. 272, and many others. 119 Ark. 383; 88 Id. 578; Kirby’s Digest, § § 4108, 4082. etc.; 16 Peters, 367; 3 How. (IT. S.) 212; 209 IT. S. 447, etc.; 53 Ark. 314; 29 Cyc. 291. 3.

E. Martinecm, Chancellor; 1. The proceedings under which the district was organized were void. The statute was not followed. Only one petition was filed and the court did not find that it was for the “best interest of the owners,” etc. 106 Ark. 296, 300-1-4; 116 Id. 35. 2. No second petition was filed and three sections of land were omitted in the final order. 118 Ark. 119; 109 Id. 60. 3. The cost of improvement exceeds the benefits. 125 Ark. 422. 4.

W. Hendricks, Judge; 1. The appellee is liable on the first cause of action for its negligence. It introduced no testimony whatever, nor did it introduce any provision limiting its liability, nor any testimony that it had filed with the Interstate Commerce Commission any rules or regulations limiting its liability. This was an essential showing as a defense. 223 U. S. 573; 191 S. W. 817.

Barker, Chancellor; 1. The intention of the parties must govern as to whether the instrument was a deed or mortgage. 27 Cyc. 1007; 3 Pom. Eq. 1195; 103 Ark. 493; 46 Id. 129; 88 Id. 369. , 2. The instrument was a mortgage to secure a loan, and such was the intention of the parties. There was a debt to be secured. 128 Ark. 67; Jones on Mortg., § 266; Devlin on Deeds, § 1118. See also 106 Mo. 278; 27 Cyc. 972; 3 Pom. Eq. 1195; 117 Ark. 388; 117 IT.

P. Henderson, Chancellor; The leases are void, and should be set aside. The homestead was urban in a town or village, and consisted of one acre. The balance of the land should be partitioned among the heirs. Kirby’s Digest, § § 3791, 3899, 3900; 20 Ark. 56; 71 111. 568; 21 Id. 48; 113 Wis. 399; 86 N. W. 677; 32 Tex. Civ. App. 18; 119 U. S. 680; 151 Ala. 561. The whole tract was a rural homestead, and could not be partitioned.

Martineau, Chancellor; 1. The demurrer should have been sustained. This was merely a suit not based upon a contract to enforce specific performance but to enforce a contract which appellant did not enter into but which he contracted to enter into. It is clearly against the statute of frauds. Kirby’s Digest, § 3654. There was no meeting of minds. 21 Ark. 502. The terms can not be ascertained without resort to extrinsic evidence. 45 Ark. 17.

Cowling, Judge; 1. Immaterial testimony was introduced to the prejudice of appellants, as to the authority of Hill to rent or loan the machine, and as to its damaged condition. The action was changed from contract to tort. 2. It was error to 'treat the complaint as amended and refusing time to meet the issue. 88 Ark. 181. 3. The court erred in its instructions.

J. Driver, Judge; 1. Tompkins was a special agent and had no authority to make the contract. The instructions given were erroneous. 90 Ark. 278; 96 Id. 614; 80 Id. 454; 70 Id. 385; 105 Id. 111-116. 2. The evidence' shows that Tompkins never made the contract. He had no authority to make it, and it was not within the apparent scope of his authority to make it. Cases supra.

D. Shaver, Chancellor; 1. There was no intent to charge more than the legal rate of interest. 62 Ark. 380. 2. If there was a mistake of fact, by error in calculation or inadvertence, it is not usury. 25 Ark. 191; 41 Id. 331; 62 Id. 370. 3. The burden to prove usury is on defendant. Usury is never inferred. 83 Ark. 31; 59 Id. 366; 57 Id. 251. 4. There is no proof that Ray Worthington was the agent of the lender. 57 Ark. 256; 54 Id. 40. 5.

Cowling, Judge; 1. The court must take that view of the evidence most favorable to the party against whom the verdict is directed. 89 Ark. 372; 73 Id. 361. 2. Where there is any evidence tending to establish the issue it is error to take the case from the jury. 89 Ark. 372; 77 Id. 556; 63 Id. 94. 3. Where the intention of the parties is not clear from the contract, on its face, the question should be left to the jury. 89 Ark. 373; 39 Id. 414; ,89 Id. 222. 4.

There was evidence establishing negligence and the case should have been submitted to the jury. 124 Ark. 386; 100 Id. 53; 97 Id. 347; 89 Id. 522; 87 id. 498; 61 Id. 555; 95 Id. 294. 2. The failure of appellee to discharge its duty with reference to appliances, was negligence. 3 Labatt M. & S., § 917, pp. 2462-5; 124 Ark. 387; 105 Id. 392; 90 Id. 223. 3. An ordinary inspection would have disclosed the loose board. 123 Ark. 122. There were two ways of doing the work.

<p>1. Account — action on — itemized account. — Under Kirby’s Digest, section 6128, where an action is brought on an account, the account must be itemized, and filed with the complaint, and where a detailed or itemized account is not filed, it is error for the court to "verrule defendant’s motion to make the account more specific by giving the items.</p> <p>2. Account — answer—insufficiency.—In an action on an account for goods sold and delivered, the answer of defendant is insufficient where it contains neither a denial of the purchase nor a plea of payment.</p> <p>3. Appeal and error — action on account — motion to make more SPECIFIC — EFFECT OP FILING DEFECTIVE ANSWER. — In an action on an account, the defendant filed a motion to make the account more specific, which the court erroneously overruled; defendant then filed a defective answer. Held, the filing of the defective answer was not a waiver of the erroneous ruling of the court in refusing to require that the account be made more definite.</p>

W. Hendricks, Judge; 1. The Governor had no power to pardon the penalty. The powers conferred by the Constitution are limited to criminal and penal cases and do not extend to liabilities under the revenue laws. Const. 1874, Art. 12, § 2; 26 Ark. 74-6-7; 117 Fed. 448; 13 Wall 128-139; 20 Id. 92; 211 Fed. 493. 2.

Haynie, Judge; 1. Appellant was the procuring cause of the sale. 84 Ark. 465. Appellee acted in bad faith. Ib. He was entitled to his commission. Ib.; 53 Id. 49; 81 Id. 96; 89 Id. 203; Ib. 207; 110 Id. 140. 2. The verdict is contrary to the evidence and the court erred in its instructions. 110 Ark. 140; 117 Id. 597; 89 Id. 208; 84 Id. 466. 1.

Appellant is not .a volunteer. If his testimony is true, and it is, appellee is clearly liable. If the agreement between Lewis and Ed Weaver is void, the question of whether appellant’s relationship to the transaction would prevent a recovery, is one of fact to be submitted to a jury under proper instructions. It was error to direct a verdict. Winter was not a party to any contract to conceal a crime or stop a prosecution therefor.

Martinecm, Chancellor; The statute of frauds applies. P,arol testimony to establish a trust in real estate is not admissible. Kirby & Castle’s Digest, § 3397. The written document does not fulfil the requirements of the statute. It fails to show what the trust was, without recourse to parol evidence. Browne Stat. Frauds, § 108; 16 Ark 364; 28 Enc. of Law, 913; 76 Ark 237. 2.

Hempstead Circuit Court; George R. Haynie, Judge; 1. Tbe claim for tbe two items was disallowed, tbe time for appeal bas expired and tbe judgment is final. Tbe cause should bave been submitted to a jury. Tbe record is tbe best evidence in tbe case. Tbe intention of tbe county judge to allow or disallow was a question of fact to be tried by jury. 57 Ark. 579; 109 Id. 537. 2.

W. Wade, Judge; 1. Tbe verdict is against tbe preponderance of tbe evidence. Roseby’s evidence was not corroborated. Tbe affray was caused by Roseby’s improper conduct and bis story is improbable, to say tbe least. No malice or premeditation was shown and tbe evidence was never sufficient to show anything more than involuntary manslaughter, if that. 2. Defendant was entitled to the benefit of the law of self-defense and reasonable doubt.

W. Smith, Judge; 1. The note sued on was given in settlement of an account for which appellee was liable. No payment nor fraud was shown. 129 Ark. 384. 2. The contract was for a sale of goods and is unambiguous. The sale was made in Illinois on orders. 126 Ark. 597; 129 Ark. 384. 3. The court erred in its instructions. Parol evidence was not admissible to vary the terms of a written instrument. 181 S. W. 273; 188 Id. 566; 190 Id. 564.; 182 Id. 106; 183 Id. 541. 4.

The conrt erred in transferring the cause to the cháncery court. The proceeding to condemn a right-of-way is statutory, and can only be determined in the circuit court. Where the land is sought for other than a public purpose, equity will relieve by injunction. 43 Ark. Ill; 59 Id. 171; 76 Id. 239; 78 Id. 83; 91 Id. 231; 99 Id. 61; 102 Id. 492; 104 Id. 344. 2.

Plaintiff was guilty of negligence, which precludes his recovery. 110 Ark. 106; 102 Id. 160; 101 Id. '321; 62 Id. 156; 61 Id. 559; 84 Id. 270; 76 Id. 10; 54 Id. 435; 125 Id. 509. See also 107 Id. 220. This rule is not abrogated by the “lookout” statute of 1911. 125 Ark. 509; Tyler v. By. Go., ms., Oct. 29, 1917; 84 Ark. 270. I. Negligence of the train crew was a question for the jury. Negligence was proven. 64 Ark. 239.

3. Evans, Judge; 1. The former adjudication is not a bar to this suit. It was not tried on its merits, and the affirmance was nothing but an affirmance of a judgment of involuntary nonsuit and is not res judicata. 173 S. W. 412; 158 Id. 69; 173 Id. 412; 2 Black on Judgm. (2 ed.), 693, 702; 108 S. W. 594; 22 Id. 710; 128 Id. 10; 148 S. W. 160; 173 Id. 412, etc. Kirby’s. Digest, § 4381; 88 S. W. 572; 75 Ark. 406. 2. Argues the merits of the cause. 1.

W. Smith, Judge; 1. The instruction of the court that nine members of the jury agreeing would justify a verdict was error. 130 Ark. 264. 2. Where an instruction is erroneous, the judgment should be reversed unless it affirmatively appears that the instruction is harmless. 110 Ark. 557; 69 Id. 134; 70 Id. 79; 67 Id. 604; 82 Id. 504-510; 107 Id. 170. 1. The error, if any, does not appear from the record, and the verdict may have been unanimous. The contrary is not shown.

The evidence shows conclusively that the deed was delivered with intent to pass title. 98 Ark. 466; 15 Id. 538; 82 Id. 47; 97 Id. 104; 22 Id. 488; 7 Id. 505; 93 Id. 324; 23 Id. 746. 2. The findings of the chancellor are clearly erroneous, and the decree should be reversed. 31 Ark. 85; 77 Id. 216; 114 Id. 121. See also 75 Id. 72; 43 Id. 307; 42 Id. 522. 1.

M. Jackson, Judge; 1. It was error to direct a verdict. The Maynard estate was indebted to Kirby in some amount, and the matter should have been submitted to a jury. 120 Ark. 206. See also 103 Ark. 401; 101 Id. 22; 96 Id. 394; 147 S. W. 93; 140 Id. 996; 131 Id. 947. 1. Kirby’s testimony was inadmissible, and there was no testimony to prove Kirby’s elaim. There was nothing to submit to a jury, and a verdict was properly directed. 2.

TFmible, Judge; 1. This case does not fall.within the rule in 88 Ark. 138. Defendant was not liable under the facts proven. Defendant’s agent finally told plaintiff that the through train would not stop for the cattle. Defendant had no right to agree to give plaintiff service not given to the public generally. 225 U. S. 155. 2. The verdict is grossly excessive and based on incompetent testimony as to classification, weight and shrinkage.

The appeal was properly dismissed, as it was taken more than six months after the judgment in the prob.ate court. Kirby’s Digest, § 1348; Acts 1909, p. 956; • 99 Ark. 60. 2. The question of mental capacity is eliminated by the verdict. 3. No undue influence is proven. No domination or control over the mind of the testator amounting to deception or coercion is shown. 48 S. E. 306; 153 Mo. 276; 154 Id. 545; 189 Id. 677; 47 S. E. 442; 18 Mass. 410. 4.

JR. Haynie, Judge; 1. The appellee is barred by limitation, even if a tenant in common. 1 R. C. L. 742, par. 62; 2 C. J. 168, par. 322. 2. The argument of counsel was erroneous and prejudicial. 28 C. C. 678; 2 C. J. 68, note 33; 117 Ark. 551. 1. Appellee was a daughter of Scott Jones. The evidence is conclusive. 2. She is not barred. She is a cotenant with appellants and their possession was not hostile and adverse. 20 Ark. 359; 99 Id. 87; 61 Id. 541.

Worthington, Judge; 1. The only defense was that the beneficiary had no insurable interest in the life of the insured. This is a negative pregnant and denied nothing but indirectly alleges that appellant did have an interest in the life of Frank Cotton. 53 Ind. 380. It pleaded merely a conclusion of law without stating the facts. Cooley’s Briefs on Insurance, 324. 2. It was not a wagering contract. Cooley, Briefs on Ins. 325; 28 S. E. 200. .

Appeal, from Columbia Chancery Court; James M. Barker, Chancellor; 1. The deed.was never delivered. 8 R. C. L. 973-4; 77 Ark. 89. Recording a deed merely raises a presumption of delivery, which may be rebutted. Delivery is a mixed question of law and fact. The test is whether the grantor by his acts, words or both intended a delivery. 8 R. C. L. 976; 77 Ark. 89; 108 Id. 53; 110 Id. 70; 111 Id. 314; 113 Id. 289. 2.

H. Dudley, Judge; 1. Argues the merits of the suit submitting that replevin did not lie for property seized under a valid judgment and sold under a valid order of sale. 94 Ark. 384; Kirby & Castle’s Digest, § 8426. 2. Tbe court erred in tbe admission and exclusion of testimony. 3. There was error in tbe instructions. Tbe property was legally sold and reported and tbe sale confirmed. 64 Ark. 96; 90 Id. 166; 82 Id. 414; 77 Id. 216; 24 Cyc. 72 E.; 35 Ark. 445. 4.

Wood, Chancellor; 1. Appellant claimed and sold the timber in good faith under a tax deed. He had no notice of the confirmation of appellee’s title, or that his tax deed was void. No fraud is proven nor conspiracy to defraud shown. The claim for damages is not sustained by the evidence. 8 Cyc. 622, 647 C, 658, 691-2; 19 Ann. Cases, 1254 .and note; 20 Ark. 224; 3 Ene. Ev. 434 and notes 88, 89, 90; 16 Ind. 512; 5 Ann.

W. Wade, Judge; 1. Under the act municipal courts have no jurisdiction. The act expressly confers jurisdiction upon the circuit court and this was intended to be exclusive and operated as a repeal of prior laws. Acts 1917; Act No. 13, the Bone-Dry Law; Const. Art. 7, § 40; Act 2, § 8; 6 Eng. 482; 16 Ark. 37; 102 M'205; 172 S. W. 272; 120 Ark. 406; 179 S. W. 813; 97 Pac. 991; 103 Id. 742; 66 S. E. 690; 142 N. W. 746; 74 Ky. 527; 36 Cyc. 1122, note 49; 175 S. W. 554. 1.

Summary statutes of this character are highly penal and should receive strict construction. 56 Árk. 45. Defendants acted in good faith. They had a meritorious defense and set it up by answer. They had an attorney’s lien, and it was error to render summary judgment. Plaintiff should have been remitted to his remedy at law. 4 Cyc. 695; Jones on Liens (3d Ed.), $ 151; 19 Pa.

Haynie, Judge; 1. It was- an arbitrary ruling and abuse of -discretion to refuse defendant the right to see the list of jurors summoned, or have a copy or time to investigate the personnel of the jury. 2. It was error to exclude the testimony of defendant’s character witnesses. The evidence was competent. 1 G-r. Ev. § 461J, par. 2; 59 Ark. 54. 3.

Shaver, Chancellor; 1. No petition as required by law was ever presented. A majority of land owners did not sign. The cost exceeded the limit. The limits extended beyond the city and embraced- territory disconnected with the city. It was not necessary to bring this suit within the thirty days. Pope v. Nashville, ms., is not conclusive of this case. Appellants were not parties to that suit. 34 Ark. 291, 302; 35 Icl. 62, 67; lb. 450; 36 Id. 196.

Coleman, Judge; 1. The juror Broadwater was disqualified and defendant’s challenges were exhausted. 113 Ark. 302; .120 Id. 470. 2. Improper testimony was admitted as to the bad reputation of defendant and as to the commission of other crimes. 101 Ark. 147; 99 Id. 604; 103 Id. 119. See also 91 Id. 555; 120 Id. 548; 88 Id. 261; 1 G-reenleaf on Ev., 39; 1 Wigmore on Ev., § 56. See also as to the admission of other improper testimony, 1 Hale, Pleas of the Crown, 635; 4 Ene.

R. Dudley, Judge; I. The court erred in sustaining the demurrer to first, third and fifth paragraphs of the complaint. 80 Ark. 228; 105 Id. 421; 97 Id. 522. 1. The demurrer was properly sustained. The first is too general and only stated a conclusion of law. 13 Cyc. 157; 72 Ark. 3. The third alleges no cause of action. It is too general. Appellee was an independent contractor and appellant was not liable for his,torts. 81 Ark. 195; 77 Id. 551. The fifth alleges no damage.

B. Priddy, Judge; 1. The verdict is not supported by tbe evidence. Prejudicial error was committed in the cross-examination of defendant. 2. Tbe remarks of tbe prosecuting attorney were unfair and prejudicial. 58 Ark. 473; 12 Cyc. 571; 73 Ark. 453; 58 Id. 353; 65 Id. 619; 70 Id. 305. 1. Tbe evidence sustains tbe verdict. 2. No objections were made to the questions on cross-examination. 76 Ark. 276; 84 Id. 487; 96 Id. 7; 101 Id. 443; 99 Id. 462; 103 Id. 70.

II. Evans, Judge; 1. The verdict is contrary to the law and the evidence. There was no negligence, but there was contributory negligence by appellee. 2. The court erred in its instructions. 97 Ark. 180; 129 Ark. Ill; 104 Id. 67; 70 Id. 441; 76 Id. 468; 88 Id. 454; 117 Id. 193; 90 Id. 278; 97 Id. 358. 3. The verdict is excessive. 1. The verdict is supported by the evidence. 67 Ark. 537; 25 Id. 474; 49 Id. 381; 51 Id. 467; 120 Id. 206. 2.

Martineau, Chancellor; 1. The mayor was disqualified to act as commissioner. Kirby & Castle’s Digest, § § 6677-8-9-80, 6843? 2. The second petition did not contain a majority in value of the real property in the district. 99 Ark. 521. 1. The mayor was a proper member of the board. 97 Ark. 334. 2. The petition was signed by a majority in value. 99 Ark. 508; 127 Id. 418.

. Appeal from White Chancery Court; John E. Martineau, Chancellor; The land in controversy was not included in the pleadings nor exhibits. The court had no jurisdiction of it and the sale and confirmation are void as to it. 27 Cyc. 1595; 15 R. C. L. 604; 55 Ark. 562; 127 Id. 98; 76 Id. 146; 81 Id. 462; 19 S. E. 708. The land was in the mortgage and note. It was mere clerical mistake that it was omitted from the pleadings and record.

B. Hay- 1. Appellee was a professional baseball player and not insurable. Unless there was a waiver be can not recover. The burden was on appellee to show waiver. 67 Ark. 589; 65 Id. 299. No waiver was shown. Neither sending printed blanks, the payment of $100 nor acceptance of premium subsequent to the injury was a waiver. 67 Ark. 587; 64 Id. 590.

8. Maples, Judge; 1. A verdict should have been directed for defendant because the operator, Hadley, was not the agent of the Kansas City Southern Railway Company but' of the Joplin Union Depot Company, a separate and distinct entity. 186 Fed. 947; 203 Icl. 953; 169 Id. 404; 162 Id. 556; 101 N. Y. S. 225. The operator was the sole agent of the depot company. 56 S. E. 624; 164 Fed. 785, 410: 14 How. 468; 177 Fed. 644; 114 Id. 100; 163 Pac. 209; 22 S. W. 570.

T. Humphries, Chancellor; 1. Defendant’s demurrers should have been sustained. 91 Ark. 400; 94 Id. 572; 99 Id. 218; 104 Id. 459. 2. Ofl the merits both the complaint and cross-complaint should be dismissed for want of equity. 4 Kent, Com. 126-7; 40 Cyc. 1688, 1726; 9 L. R. A. (O. S.) 167; 1 Demblitz on Land Titles, 163; 77 N. E. 458; 95 Ark. 340; 1 Cooley, Blackstone (4 ed.), 560; 97 N. S. 693. The will was without effect as the devisees never agreed to take under it.

W. Hendricks, Judge; 1. Plaintiff was not entitled to recover for loss of jewelry checked as baggage. Ill Ark. 430; 233 IT. S. 97. 2. Defendant is not liable for damage not occurring on its own line. 106 Am. St. Rep. 597, 610. 3. Appellee can not recover under the interstate law. Carmack Amendment to Interstate Com. Act, § 20; 233 IT. S. 97. The case in 101 Pac. 361 does not apply. 1.

<p>1. Appeal and error — undisputed testimony. — On appeal this court does not pass upon questions of mere probability, and the verdict of a jury is conclusive upon disputed questions of fact where any real dispute or controversy exists; it is only when all reasonable minds must reach the same conclusion that this court will say that the testimony is so undisputed that no question of fact is presented for the jury’s decision.</p> <p>2. Life insurance — health op insured — finding of jury. — In an action on a policy of life insurance, the finding of the jury that the insured had not misrepresented his physical condition in his application for insurance, held not contrary to the evidence introduced.</p>

M. Jackson, Judge; 1. It was error to direct a verdict. The issues should have been submitted to a jury. 37 Ark. 193; 120 Id. 206; 89 Id. 368; 103 Id. 401; 82 Id. 86. 2. The value of the cotton should have been submitted to a jury. The cotton in value did not amount to $500. 3. The testimony does not show that the cotton was raised on plaintiff’s plantation. It was error to admit McDonald’s letter as evidence. 14 Ene. Ev. 718; 89 Ark. 481; 17 Cyc. 945. 1.

J. Driver, Judge; 1. The justice had no jurisdiction, and the circuit court acquired none on appeal. 47 Ark. 59; 41 Id. 476; 66 Id. 346; 114 Id. 309; 44 Id. 100; 45 Id. 346. 2. Defendant was liable only as a warehouseman. 63 Ark. 344; 97 Id. 287; 6 Cyc. 456, n. 50, 673, n. 70. Negligence must be shown. 63 Ark. 355; 97 Id. 290; 42 Id. 200. None was shown. 3. The judgment is in conflict with the special findings. Kirby’s Dig., § 6208; 84 Ark. 363. 1.

B. Baker, Judge; 1. It was error to sustain the demurrer. The second amended complaint stated the proper measure of damages. 42 Ark 257; 75 Id. 589; 102 Id. 108; 110 Id. 504. 2. It is not necessary, on demurrer, to state or plead the measure of damages; 43 Ark 257; 102 Id. 108; 206 N. Y. 89; 149 Ky. 65; 143 Id. 233. 1. The complaint is bad on demurrer because it does not allege such a damage as the law allows. 42 Ark 257; 75 Id. 589; 102 Id. 108. 2.

JEL. Dudley, Judge; 1. Defendant offered to confess judgment and it was error to tax the costs against him. Kirby & Castle’s Dig. § 7723; Kirby’s Digest, § 6283; 127 Ark. 44; 44 Id. 562; 87 Id. 5. 1. The offer to confess judgment was not sufficient. 21 Ark. 559; 30 Id. 505-511; 34 Id. 582-589. 2. There was no bill of exceptions. 44 Ark. 482; 58 Id. 399.

Appellants’ equities are superior to those of appellee and it was error to adjudge the costs against them. John W. White was not an innocent purchaser. 35 Ark. 103; 43 Id. 464;' 94 Id. 301; 97 Id. 398; 103 Id. 425; 45 Ark. Law Rep. 197; 95 Ark. 582 ; 53 Fed. 875; 58 Ark. 91. He is charged with constructive notice. Kirby’s Digest, § 762; Jones on Mortg. § 456. 2. White’s mortgage was void for uncertainty. 48 Ark. 49; 40 Id. 536; 43 Id. 353; 35 Id. 470; Pom. Eq.

R. Haynie, Judge; 1. The court should have required appellees to elect ou which petition they would stand. It should have' refused the petition for certiorari, because any interested party could have appealed, and having failed to do so, they are bound by the order of the county court. 2. The county court had jurisdiction to establish the district. Act 183, Acts 1915, is not unconstitutional.

Court; Jno. M. Elliott, Chancellor; 1. The court erred in dismissing the complaint and in holding the district valid. The lands, as shown by the- official plat, are not contiguous. 196 S. W. 930. 1. 196 S. W. 930 differs from this. 2. The lands are contiguous according to the plat used in Jefferson County for years. 75 Ark. 400.