Volume 134 — Arkansas Reports

S. Simmons, Special Judge; 1. The action survived on the death of the widow and it was error to ¡sustain the demurrer. 2. The court erred in its instructions. Sutherland on Damages, § 1273; 173 S. W. 880; 160 Cal. 48; 172 S. W. 984; 71 C. C. A. 619; 98 N. Y. 528; 128 111. App. 335; 86 Am; Dec. 297; 7 Am. Eep. 450; 47 N. Y. 317; Blashfield, Inst, to Juries, 173, § 77, etc.; 88 Ark. 26. See 53 Ark. 203; 58 Id. 339; 71 Id. 430; 112 Id. 320. 3.

Martinecm, Chancellor; 1, The assessments are void because the property received no benefits from the sewer system. 93 Ark. 543. 2. There has been no final valid assessment of benefits. 1. The ordinance was duly passed. The assessments were valid and beneficial. All the acts of the directors were according to law. 98 Ark. 544; Kirby’s Digest, § § 5684-5. 2.

D. Shaver, Chancellor; 1. The plea of res judicata was not sustained. 117 Ark. 633; 22 Id. 572; 39 Id. M2; 40 Id. 545; 92 Id. 460; 106 Id. 310; 92 Id. 460. 2. The terms of the lease were violated by appellees and they are liable. 102 Ark. 433; 50 Id. 562; 93 Id. 269; 113 Id. 471-8; 110 Id. 335; lb. 402, etc. 3. The lease should he canceled and appellants are entitled to the relief prayed.

W. Hendricks, Judge; 1. Smith was liable. It was error to grant the peremptory instruction. He was -a stockholder and actively participated in the management of the corporation. 35 Ark. 144; 62 Id. 229; 125 Id. 155; 168 Fed. 187; 196 S. W. 462; 10 Cyc. 248; 17 L. R. A. 549; L. R. A. 1916 C. 196-201; 29 L. R. A. 143; 39 Id. 810; 10 Cyc. 658. 2.

E. Martineau, Chancellor; 1. The district was void. Act 338, Acts 1915; 123 Ark. 205; 86 Id. 1; 55 Id. 148; 48 Id. 308; 75 Id. 120-6, etc. 2. The act being void it could not be cured by the act of 1917. 123 Ark. 205; 118 Id. 119-123; 126 Id. 416; 122 Id. 491; 119 Id. 188. 3. It does not revive or revitalize the void acts of the district. 69 Ark. 68-76; 18 Id. 119; 123 Id. 205. 1.

8. Maples, Judge; 1. J. H. Keith’s testimony as to verbal communications made to the foreman was improperly admitted. 2. A deduction of fifty cents a barrel should have been allowed on Russell Keith’s testimony. 3. The -court erred in refusing instructions 1 and 2. Payment in full was made, and there was an accord and satisfaction as the checks were given “in full payment.” 170 S. W. 483, 49 Ark. 235; 94 Id. 158; 98 Id. 269; 100 Id. 251; 122 Id. 212. 1.

The official count and returns of the election judges show that appellant was duly elected. 50 Ark. 505; McCrary on Elections, 293. The recount after-wards, when the ballots had been subject to have been tampered with or changed should not prevail over the official count and return. 6 S. W. 505-9; 75 Ark. 452; 50 Id. 85. The ballots had lost their presumptive purity and were no longer the best evidence. Unauthorized persons had handled the ballots.

B. Hay me, Judge; 1. The policy ivas void. Bennett was not the «ole and unconditional owner. 116 Ga. 794; 77 Miss. 348; 86 Md. 130; 21 Fla. 399; 10 Gush. 446; 40 Me. 587; 6 Humph. 176; 27 U. S. 25; 28 Tex. Civ. App. 409. There was also a change of title or interest. 94 Ark. 594; 10 Mioh. 279; 1 Id. N. P. 118; 49 S. W. 132. See also 72 Am. Dec. 705; 52 Am. Rep. 438; 85 Am. Dec. 452; 11 Am. Rep. 741. 2. Hearsay testimony was admitted. 1 Greenl. Ev. (14 ed.) 135. 3.

M. Jackson, Judge; 1. Appellee should be charged with the $500 received from the Penn estate and $395.50 he received from the Hamblett estate. 124 Ark. 161. 2. It is agreed that by his last annual settlement appellee had in his hands as guardian $1,275.80 belonging to his ward. The probate court never made any orders authorizing the expenditure of any money for his ward, nor is it shown to have been expended for maintenance or education.

Coleman, Judge; 1. Britton and McCallester, were not competent jurors.' They had a fixed opinion as to the guilt or innocence of defendant. 79 Ark. 127; 102 Id. 180; 91 Id. 582. 2. It was error to refuse instruction No. 1 asked. 85 Ark. 51; 12 Cyc.'751; 21 Id. 796-816; 59 Ark. 132; 170 5. W. 235; 172 Id. 1025; 120 Ark. 202. 3.

J. Driver, Judge; 1. The widow elected to take under the will and is clearly within the statute. 133 N. W. 870; 66 N. E. 93; 131 N. Y. Supp. 137; 53 Id. 591; 127 Am. St. 1063. 120 Ark. 295 does not apply. 2. The tax was not paid within twelve months and a penalty of 10 per cent, and interest should be charged. 1. The value of the widow’s dower and homestead is exempt. 120 Ark. 295. 2. The suit was premature. Acts 1913, 824. 3. The appeal was not taken by the proper officer.

Francis Circuit Court; J. M. Jackson, Judge; 1. Appellees are not entitled to recover under the pleadings and proof. Appellants were not bailees for hire, but only gratuitous bailees and held to only ordinary care. 68 Ark. 284; 67 Id. 284. 2. The burden was on appellees to show negligence and loss. 68 Ark. 284; 12 A. & E. Enc. 54; 24 S. W. 1053; 31 Ark. 286; 40 Id. 375; 44 Id. 208; 52 Id. 26; 63 Id. 344; 101 Id. 75, 84. 3.

Humphries, Chancellor; ■ 1. The court erred in overruling the s demurrer to the complaint. No tender of compensation for betterments was made, nor otter to restore benefits. 4 E. C. L. 509-10-11-12-13-14, etc. 2. Appellee is barred by laches and estopped by her conduct. Ann. Cases, 1913 E. Yol. 30, pages 436-7-8-9; 9 C. J. 1201, § 82; 4 E. C. L. 514, § 26. 3. No fraud, duress or undue influence is shown.

Trimble, Judge; 1. It was error to sustain the demurrer. Defendant was a railroad company doing a telegraph business, with separate tariff schedules along lines wholly within this State, and not being a telegraph company does not fall within the purview of the interstate commerce act, or rules of the Interstate Commerce Commission. Kirby’s Digest, § 7947; U. S. Comp. Stat. 1913, § 8563; Gonf. Rulings Bulletin No. 7, Inter. St. Com., Nov. 1,1917, p. 94. 2.

No fraudulent representations were made or proven. The statements of the agent were expressions of opinion and not fraudulent. 84 Atl. 146; 5 N. W. 736; 37 So. 422; 112 111. App. 329; 160 Pac. 495; 157 Id. 941; 88 S. E. 348; 143 Pac. 998; 14 Ga. App. 803; 88 S. E. 355; 33 111. 354; 93 Iiid. 276; 124 Ark. 555; 86 111. 125; 197 111. App. 101; 95 Ark. 131; 31 Id. 170; 15 L. R. A. (N. S.) 409; 86 111. 125. 2.

Trimble, Judge; The sheriff as shown by his return, properly posted the notices of the order. Kirby’s Digest, § 1176. It was clearly error to permit the sheriff to testify in contradiction of his’ return. 51 Ark. 34; 87 Id. 409; 83 Id. 229, 232. The words “each” and “every” mean the same thing and 195 S. W. 354 is not in point. The order was not posted as required by law. Kirby’s Digest, § § 1776, 2726. The failure of the sheriff violated the whole proceeding.

Elliott, Chancellor; The appellees were “public ginners” within the meaning of Act No. 266, Acts of 1917. 34 Ark. 179; 8 Words & Phrases, 6905, 2667. Appellees are not “public ginners” within the meaning of the Act. 37 L. K». A. (N. S.) 510; 147 Wis. 320; 32 Cyc. 1255; 92 S. W. 419; 72 Id. 944-6-7, etc.

B. Baiter, Judge; It was error to sustain defendant’s plea of res judicata. To constitute res judicata it is essential that the .same issues between the same parties be determined. Neither the parties nor issues here were the same. A judgment in a garnishment suit is not conclusive except as against the plaintiff, and will not support a. plea of res judicata. 2 Black on Judg. (2 ed.), § 594; Drake on Att.

Shaver, Chancellor; 1. Appellee has no right to redeem because his tender was not made within twelve months; the tender was not sufficient and his election of remedies in bringing the first suit is inconsistent with the present suit. He is precluded because he has had his day in court and refused to avail himself of the right to redeem offered him. 67 Ark. 206; 64 Id. 213; 94 Id. 443; 83 Id. 573; 135 Mass. 172. 2. By prosecuting his first suit he made an election and lost.

Coleman, Judge; 1. The act of 1911, if constitutional, applies only to counties which have voted the three-mill county road tax under Amendment No. 5, Constitution. This tax had not been voted for, nor did the county court levy such a tax. Act 422, Acts 1911; Kirby’s Dig., § 2328; 76 Ark. 303, 309. 2. The act (1911) is unconstitutional. It fails to provide for notice, or make provision for compensation and damages. 5 Enc.

Francis Chancery Court; Edward D. Robertson, Chancellor; 1. Notice was served by publication in accordance with the terms of the deed of trust. This was sufficient. Kirby’s Digest, § 4923; 123 Ark. 523. 2. All the plaintiffs are barred by laches and limitation. 3. The recitals in the trustee’s deed are prima facie true, and must be overcome by clear, positive and conyincing proof. 91 Árk. 332; 61 Id. 473; 23 Am: & E. Ene.

Worthington, Judge; 1. Defendant’s peremptory instruction should have been given. There was simply an accident which was unavoidable and not to have been foreseen by defendant or its employees. There was no negligence proven as the proximate cause of the accident, nor could it have been foreseen. 86 Ark. 289; 108 Id. 483; 91 Id. 260; 113 Id. 60. 2. It was error to give plaintiff’s instruction No. 1. It was objected to generally and specifically.

Martineau, Chancellor; Demurrage was properly charged on the • cars placed on the private switch and detained beyond the time. • Kirby & Castle’s Digest, § 8180; 120 Ark. 572; 204 Fed. 757. Appellees misconceive the force of 243 U. S. 281.

B. Priddy, Judge; 1. The court erred in not transferring the cause to the chancery court. 2. The judgment is not sustained by the evidence. Plaintiff was not entitled to maintain replevin. 67 Ark. 135; 82 Id. 244; 73 Id. 589. Plaintiff had no title, nor interest in the property or its proceeds. The attachment sale was never confirmed, nor was the sale according to law. 52 Ark. 446; Kirby’s Digest, § 385; 27 Ark. 292; 67 Id. 261; 81 Id. 147, etc. 2.

A mutual mistake is not proven by that clear, decisive and convincing evidence required by courts of chancery.

Wood, Chancellor; 1. The title to the land vested in appellant and she became the owner. The conveyance was beneficial to her and carried with it no burden or duty, no positive act of assent on her part was necessary. It is presumed she assented. Tiedeman on Eeal Property, § 814. The deed was duly signed and acknowledged and recorded. It was delivered to her father for her. Kirby’s Dig. § 756. 2.

Martineau, Chancellor; 1. The price paid was shockingly inadequate. The evidence shows that the lots are worth twice the amount paid. 2. The contract was not of sale but an option to purchase. The power to sell real estate does not include the power to option. 104 Ark. 459; Ann. Cases, 1914 C. 363, and cases cited in note to page 366. 3. The deed to Porter, though absolute in form, was only a mortgage. The debts were not satisfied. 88 Ark. 299, 301. 4.

Wood, Chancellor; 1. The appellees purchased the west half of section 13 and by mistake described it in the deed as the east half. 2. There were no false or fraudulent representations by appellant. Hoyt was appellees’ agent and not appellant’s. 57 Fed. 753; 6 Cyc. A. 539; 53 Ark. 208; 105 Id. 446.

M. Barker, Chancellor; 1. The overwhelming preponderance of the evidence is that G-eorge and Francis Maine were .never married; that Mollie Taylor was not their child. But, conceding the marriage, Frances was not entitled to dower. K. & C. Dig. § 2934; 111 Ark. 305; 103 S. W. 521; 14 Cyc. 962; 29 Ark 650. She is barred. 22 Id. 263; 40 Id. 283; 33 Id. 296. 2.

Robertson. Chancellor; 1. Even if we concede tha't the defense that the option contract was executed only as additional security and was discharged by payment of the mortgage debt, yet the court was not warranted from the testimony in making such a finding. .The contract is plain and unambiguous, clear and certain, and parol testimony was not admissible to vary or contradict it. 4 Ark. 183; 15 Id. 543; 24 Id. 210; 29 Id. 544; 35 Id. 156; 24 Id. 269; 25 Id. 191; lb. 309; 99…

Mc-Mahan, Chancellor; 1. The affidavit was sufficient for a warning order. Kirby’s Dig. % 6055; 47 Ark. 48; 194 S. W. 1025. The affidavit was a substantial compliance with the law. 2. Plaintiff should have been allowed to amend the affidavit, if deemed insufficient. Kirby’s Digest, § 6145, 345; 34 Ark. 44; 33 Id. 406; 47 Id. 31, 49; 34 Id. 682; 32 Id. 406; lb. 278. 1. The affidavit was not sufficient.

If the land was a homestead, it is not subject to partition. 29 Ark. 280; 31 Id. 145; 33 Id. 399; 47 Id. 504; 61 Id. 26; 95 Id. 256; 122 S. W. 485; 129 Id. 284. 2. The clear preponderance of the evidence shows that the homestead was abandoned by Keith in his lifetime, without any intention to return. 60 Ark. 262; 126 Id. 541. Abandonment is a question of intention. 37 Ark. 283; 48 Id. 539; 101 Id. 101; 141 S. W. 505; 60 Ark. 262; 67 Ala. 558; 37 111. 230; 126 Ark. 541.

8. Maples, Judge; 1. The measure of damages is fixed by the contract at $100 liquidated damages, and. in no event could more be recovered. 2. The court erred in its instructions. 100 Ark. 321; 83 Id. 192; etc. I. There is no error in the instructions. 74 Ark. 41; 73 Id. 338; 90 Id. 88, 256. 2. The damages were stipulated and settled by the contract. 1 Sutherland on Dam. 740. It is not penalty. Ill la. 693; 83 N. W. 791.

Elliott, Chancellor; The preponderance of the evidence sustains the plaintiff’s contention and it was error to refuse the relief prayed. 22 Cyc. 842; 114 Mich. 149, 156; 96 U. S. 255; 43 L. B. A. 95; 33 Conn. 157. 1. The findings of the chancellor are not contrary to the preponderance of the evidence. 2. There can be no exclusive right to the use of formulas for the manufacture of common everyday remedies. 21 Am. St. Bep. 442; 151 Mass. 190. STATEMENT OE EAOTS.

W. Hendricks, Judge; 1. The court erred in giving defendant’s instructions 3, 4 and 5 and in refusing those asked by plaintiff. The silo was not a finished product erected by plaintiff, and warranted fit for the purposes intended. The defendant took and accepted the materials and employed a contractor to erect it. If there were any defects plaintiff was not responsible. Defects, if any, were obvious and the defective parts should have been rejected and notice given.

J. Driver, Judge; 1. The court erred in its instructions. The contract was for five years and failed to mention any specific time in which to remove the stumps to entitle appellants to free rent for 1916. It was error to limit it to Jan. 1,1917, as the court did by its instructions. Appellants were entitled to the 1916 crop on all land stumped prior to the customary time to begin the crop for 1917. 2.

8. Maples, Judge; The demurrer was improperly sustained. A good cause of action was stated in the complaint and appellant had the right to sue and appellee is clearly liable. 82 Ark. 384; 76 Icl. 395; 4 Crawford’s Digest, 243; 78 Ark. 330; 77 Id. 261; 86 Id. 606. The demurrer was properly sustained. The court had no jurisdiction.

Appeals from White Circuit Court; J. M. Jackson, Judge; 1. Russell as receiver had no authority to maintain the attachment suit. Kirby’s Digest, § § 6342, 6355-6; 71 Ark. 17-24. 2. He was entitled to his repairs. 36 Ark. 17-35. 3. A mortgagor is entitled to the use of the land until dispossessed. 36 Ark. 29. 4. The relation of landlord and tenant must exist. 57 Ark. 215; 61 Id. 515, 519; 93 Id. 215; 221; 68 Id. 584; 97 Id. 262; 119 Id. 543, 549. 5.

Robertson, Chancellor; 1. The mortgage was not void for uncertainty. It was sufficiently definite to describe the land and was given in good faith. Any latent ambiguity was explained by parol testimony. 40 Arle. 237-240; 106 Id. 85. It was constructive notice to all subsequent purchasers. 2. Appellee relies on the same description. He is not an innocent purchaser. The note and mortgage were purchased by Mrs. Bunch in good faith and for value and was sufficiently definite. 1.

Trimble, Judge; 1. The policy was void for misstatements and untrue answers which were warranties. The rate hook was admissible in evidence. The age of appellee was misstated, and no recovery could be had. 64 Am. Dec. 529; 61 N. Y. 571; 25 Cyc. 740, note 43; 117 Wis. 24; 25 Cyc. 741 (f), 742 (4), 904 (A), 919 (L), 808 (D), etc.; 77 Ala. 210; 93 N. W. 800; 64 N. H. 241; 119 Iowa, 263; 72 Id. 232; 93 N. W. 662, 277; 9 Atl. 113; 25 S. W. 835. 2.

A. Falconer, Chancellor; 1. The court was without jurisdiction, as plaintiff has a complete remedy at law. Plaintiff does not allege a previous establishment of a title at law nor that defendant is insolvent. Nor is irreparable injury alleged. 3 Pittsb. 204, 210; 67 Ark. 413; 81 Id. 115; 75 Id. 286; 92 Id. 118; 93 Id. 93; 77 Id. 527; 196 S. W. 483; 22 L. E. A. 233; 22 Cyc. 818; 1 Pom. Eq. Jur., par. 252; 3 Md. 489; 57 N. H. 153; 44 Am.

Trimble, Judge; 1. It was error to instruct a verdict for defendant. The evidence was conflicting and the case at least should have been submitted to a jury. The question of negligence is one' of law for the court, but whether there was negligence or not, is a question for a jury. The conductor’s testimony, it is true, was'positive and appellee’s negative, yet the weight was for the jury. Ene. Ev. 865-8, 870; 79 Ark. 621; 87 Id. 628; 74 Id. 483. 2.

The instructions are erroneous, and were given orally when they should have been in writing as required by law and as requested by appellants. 81 S. W. 382; 115 Ark. 339; 34 Id. 257; 47 Id. 407; 51 Id. 177; 10 S. W. 257; 39 Id. 358. 2. It was error to entertain the answer and demurrer in justice of the peace court. 169 S. W. 959; 61 Ark. 605; 33 Id. 1064; 55 Ark. 200; 94 Id. 54; 125 S. W. 1007. 3.

B. Priddy, Judge; Appellant had the right to select and use the equipment most suitable for the transportation with safety of perishable articles, and to charge the usual rate therefor. 82 Ark. 143; 74 Id. 597. See also as to the duty and liability of carriers. 83 Ark. 143, 562; 46 Id. 241; 56 Id. 424; 93 Id. 537; 74 Id. 597; 35 Id. 402; 4 Elliott on Railroads, $ 1475; 1 Sh. & Redf. on Negl., § 39; 1 Moore on Carriers (2 ed.), 152; 27 S. W. 1031; 16 So. 255; 13 Mo. App. 254.

T. Humphries, Chancellor; 1. The complaint does not allege that Sharp County had any lien on the lands. 50 Ark. 361. 2. The money paid satisfied only a part of the judgment. Appellee must show full satisfaction and discharge of the lien before he is entitled to subrogation. 50 Ark. 361; 90 Id. 51; 96 Id. 594; 76 Id. 245; 34 Id. 113. 3. Sharp County was not made a party to the suit.

M. Elliott, Chancellor; 1. . There is no exception in Act 247, Acts 1907, in favor of persons of unsound mind. All persons are allowed only one year to redeem. The right to redeem depends upon the statute in force at the time of sale. Cooley, Taxation, 533; 21 Ark. 322; 51 Id. 453-8; 81 Id. 476; 37 Cyc. 1390. n 2. Appellee had no right to redeem from the sale under the act of 1907, page 584.

B. Sorrells, Judge; 1. It was error to refuse defendant’s instruction' No. 10. The true rule of damages is the difference between the contract price and the price at which the vendee could have obtained similar goods at the time and place mentioned in the contract. The party injured must make every reasonable effort to diminish or minimize the damages. 146 N. W. 422; 46 Kan. 192; 131 N. W. 559, 564; 84 Am. Dec. 330; 20 Id. 341; Benjamin on Sales, 887; 105 U. S. 709-717; 6 Am.

B. Priddy, Judge; 1. This suit was properly brought under the Act No. 71,1917, § 7. It raised properly all objections to the validity of the act and the method of assessing benefits and that the assessment was unreasonable and excessive. It was reversible error to sustain the demurrer as to all questions except the reasonableness of the assessments. 96 Ark. 540; 94 Id. Ill; 76 Id. 423; 77 Id. 379. 2.

The contract is simple and easily understood. Appellee admits his breach. It was error to admit testimony as to the value of such hay at other places than Pine Bluff. The market value was shown to be $16. The damages were the difference between the contract price and the market price. 124 Ark. 148; 79 Id. 339; 88 Id. 557. 2. The verdict for nominal damages should be set aside, as the evidence justified an award of substantial damages. 103 Ark. 370; 102 Id. 137. 3.

<p>Appeal from Garland Circuit Court; Scott Wood, Judge;</p> <p>It was error to direct a verdict. 84 Ark. 564; 130 Id. 236; 133 Ark. 549.</p> <p>Confess error in directing a verdict when tlie punishment is imprisonment. 114 Ark. 393; 102 Id. 170; 88 Id. 269; 77 Id. 441; 84 Id. 564; 114 Ark/391.</p>

W. Hendricks, Judge; 1. The testimony does not sustain the general or special findings of the court as to the questions of fact. 2. The finding of the court is not sustained by the law. The land remained original land, because the river made a cut-off, an avulsion, and appellants were entitled to all accretions made to said original land. 143 IT. S. 359; 36 L. Ed. 186-8; 35 Am. St. 311; 61 Ark. 429.

Coleman, Judge; The court erred in sustaining the demurrer. Kirby’s Digest, § § 6099, 6101 as amended by Act No. 267, Acts 1917, p. 1441. 1. Creager was not a party. No service was had on him. 2. The cross-complaint did not properly set ont any damages for which appellants were entitled to recover. The demurrer was properly sustained. 56 Ark. 603; 33 M-545; 95 Id. 363; 148 S. W. 269; 80 Ark. 228; 36 Id. 518.

<p>Appeal from Drew Chancery Court; Zachariah T. Wood, Chancellor;</p> <p>1. The assessment was made without reference to benefits to be received. 86 Ark. 1; 119 Id. 128; 55 N. Y. 604; 48 L. R. A. 851; 127 Ark. 310; 119 Id. 294; 89 Id. 513; 117 Id. 31; 98 Id. 543; 119 Id. 178; 125 Id. 425.</p> <p>2. The assessment is excessive. Bush v. Branson, U. S. Ct. App., Feb. 16, 1918. The finding of the court is not conclusive. 180 Fed. 92, and others.</p> <p>3. The district was never legally organized for the reason that no plans nor estimate of cost were made or reported to the conncil. Kirby & Castle’s Digest, § 6836; 106 Ark. 44.</p> <p>4. No petition signed by a majority of owners was ever filed. Kirby’s Digest, § 6862.</p> <p>5. The appeal was taken in time. Kirby’s Digest, § 5685.</p> <p>1. The district was properly formed. The statute as to plans, estimates, etc., was substantially complied with. The council found that the petition was filed and was duly signed by a majority of owners. No appeal was taken in time. Kirby & Castle’s Digest, § 6826; 90 Ark. 38-9; 103 Id. 451; 86 Id. 12,13,14.</p> <p>2. The burden of proof was on appellant. 121 Ark. 105. The attack on the general assessment is not sustained by the evidence. It was properly made according to benefits and was not arbitrary nor excessive. 121 Ark. 105. The sole remedy is by appeal within ten days. Kirby & Castle’s Digest, § 6843; 86 Ark. 12, etc.</p> <p>3. The method was correct and the railroad property properly assessed. But the only relief was by appeal. Kirby & Castle’s Digest, § 6843; 86 Ark. 12, etc.</p>

Miller Circuit Court; Geo. B. Haynie, Judge; 1. Improper, incompetent and prejudicial testimony was offered in evidence. Testimony as to certain contributions or payments to plaintiff, and as to liability or indemnity insurance beld by defendant was inadmissible and tbe offer was prejudicial. 104 Ark. 1; 114 Id. 542. 2. There was error in tbe plaintiff’s instructions.

D. Shaver, Chancellor; 1. Conceding that the commissioners exceeded their authority in allowing the claims, their action was after-wards validated by the amendatory act of 1917, § § 6 and 7. 2. The Legislature has power to enforce previous moral obligations. 10 Allen (Mass.), 585; 95 U. S. 644; 56 Ind. 363; 6 A. & E. Enc. (2 ed.) 943. 3.

R. Eaynie, Judge; 1. The court erred in its instructions. Where a real estate broker produces a purchaser ready, able and willing to buy upon terms authorized, he is entitled to his commission whether the right of revocation exists or not. 91 Ark. 212; 112 Id. 566; 89 Id. 195. 2. The owner has no right to withdraw the authority to prevent the agent from making the sale. 194 S. W. 226; 106 Ark. 536; 111 Id. 190; 112 Id. 227; 84 Id. 462.

S. Maples, Judge; 1. The complaint was regularly filed and stated a good cause of action. Defendants were duly served but made default. Appellant was entitled to judgment by default. Kirby’s Digest, § 6188. 2. The State was not made a party. The judgment of the Madison Circuit Court purporting to escheat the land is void. Kirby’s Digest, § § 3031, 4919, 4924.

Worthington, Judge; 1. Mutual assent of parties is an essential element of every contract. Doubt is incompatible with an agreement. 81 Ind. 171. 2. No one can incur liability under a contract to which he is not a party; a sub-contractor cannot pass by his immediate employer and sue the proprietor. 13 Ind. 67; 11 N. Y. 593. 3. No action lies on a contract which has been superseded by the substitution of a different contract. 161 Mass. 449; 148 N. Y. S. 129. 4.

G. Trimble, Judge; 1. The court erred in its instructions to the jury. It allowed appellee to recover for any prospective net profits appellee claimed. It assumed that the machinery was not in good repair when leased to appellee and that a failure to put the machinery in good repair was a breach of the contract. The court wholly ignored the defense of appellant that appellee had negligently managed and operated the machinery and thereby caused any loss occurring.

T. Wood, Chancellor; 1. The suit is barred by the statute of limitations. The statute was not waived by the letters or acts of appellant. 91 Ark. 162; 10 Id. 134; 11 Id. 666; 26 Id. 540; 76 Atl. 716; 57 Ark. 583; 85 Id. 584. It was an unliquidated claim and not a debt. The amount was never agreed upon. There was no estoppel or waiver. 2. The chancery court had no jurisdiction, this being a law action. 85 Ark. 208, 211; 65 Id. 600; 43 Id. 485; 30 Mich. 345; 6 Pom.

C. Trim-tie, Judge; 1. The directors and treasurer had no authority to expend the money. 192 8. W. 949. 2. Having exceeded their authority they are personally liable. 52 Ark. 541; 7 L. R. A. 180; 83 Ark. 275; 56 Id. 205; 123 Id. 255; 103 Id. 529; 25 Id. 318; 30 Id. 248. The defendants were not personally liable. They acted in good faith and were not liable for mere errors of judgment. 94 Ark. 583; 95 111. 263; 35 Am. Rep. 164; 38 Me. 279; 61 Am.

S. Maples, Judge; 1. The court erred in its instructions to the jury. The- bond for $500 was not for liquidated damages, but was a penalty. Field on Damages, 153; 1 Sutherland on Damages, 480, 490; 7 Wheaton, 13; 122 Ark. 167; 73 Id. 432; 57 Id. 168. 2. Welborn was in no event liable except for actual damages, that is the loss of his (plaintiff’s) bargain which was easily proven. 85 Ark. 289; 111 Id 484; 91 Id. 433; 70 Am. Dec. 453; 89 Id. 574; 48 Id. 775. 3.

J. Driver, Judge; The demurrer should have been overruled. The suit was filed within one year from the time the damages were sustained and appellant had a lien. Kirby & Castle’s Digest, § § 8172, 8173; 74 Ark. 528; 80 Id. 399; 74 Id. 366; 85 S. W. 1133; 115 Fed. 367. The complaint alleged all necessary facts and stated a good cause of action. The demurrer was properly sustained.

I. Worthington, Judge; 1. It was error to refuse to give instruction No. 1, asked by plaintiff. The contract shows conclusively that Mays and Stokes were partners. 5 Ark. 270; 13 Id. 28; 95 Id. 405; 87 Id. 412. 2. It was error to permit Mays to testify that the contract was entered into between Stokes and the bank. There is no ambiguity in the contract and oral testimony was not admissible to contradict or vary the written contract. 50 Ark. 393; 35 Id. 156; 95 Id. 131. 3.

The condition and express understanding in the notes as to the fund wherewith to pay them is not ambiguous, and though notes be assignable under our statute, the condition and express understanding is more than an indication of the fund out of which they are to be paid, and until that particular money comes to the hands of Rector and Belding this suit can not be maintained. 40 Ark. 185; 14 Id. 389; 16 Id. 595. Our Negotiable Instrument Act has not changed the law.

T. Humphries; Chancellor; 1. The deed was not to take effect until after the death of the grantor and is in the nature of a will. 2 Bl. Com. 499; 127 U. S. 309. As a will it is void. 98 Ark. 466; '93 Id. 324; 100 Id. 427; 126 Id. 183; 75 S. W. 672. 2. It was not delivered during the lifetime of the grantor. 110 Ark. 425; 100 Id. 427, 432; 98 Id. 466. 3. There was no consideration and the estate is insolvent. 1.

<p>Appeals — time for taking — chancery proceeding — effect of motion to vacate decree.- — The time for taking an appeal to the Supreme Court is six months after the rendition of the judgment, order or decree sought to be reviewed; and in a proceeding in chancery, this time is not extended by reason of the filing of a motion to vacate the decree.</p>

The title and right of possession must be determined at the time of the commencement of the .action. 84 Ark. 614. Appellee was not the owner of the ear and had no right to the possession. A mere interest in the car is not sufficient. 37 Id. 64; 52 Id. 138. He had no special ownership. He did not buy the car, nor have the right of possession. Shinn on Replevin, § § 189,199; 56 Ark. 450; 75 Id. 336. It was error to direct a verdict. 1.

District; W. A. Falconer, Chancellor; There has been no breach of the lease, but if so, it was waived by appellees. It was error to cancel the lease. 16 Cyc. 44; 25 So. Rep. 834; 133 U. S. 156; 6 Cyc. 336; 146 Mass. 399. See also 59 Ark. 408; 77 Id. 305; 52 Id. 207; 69 Id. 513; 78 Id. 202; 77 Id. 168; 98 Id. 328; 91 Id. 133; 101 Id. 461; 102 Id. 442; 96 IT. S. 242; 1 Pom. Eq. Jur. (3 ed.), §§ 459-460. Appellant failed to perform its contract, and thereby terminated the lease.

R. Ilaynie, Judge; 1. This is the second appeal in this cause. 126 Ark. 462. The answer of East and his counter-claim presented an equitable defense and the cause should have been transferred to the chancery court. 56 Ark. 450; 73 Id. 464. 2. Argue the merits of the cause, alleging many errors. 1. The motion to transfer to equity was properly refused.

C. Trimble, Judge; 1. The court had jurisdiction of the subject-matter. 17 Am. & E. Ene. L. 1060; 27 Id. 196. 2. This was a joint and several obligation. There was no administration on the estate; the heirs were of full age; the estate was solvent and the heirs inherited lands and personal property and the action survived against the heirs and they are liable. K. & C. Dig., § § 5147, 5149, 5150.

Coleman, Judge; 1. Under the Alexander act a land owner desiring to appeal is not required to procure either an order granting an appeal or an allowance of an appeal by the clerk. Acts 1915, § 14, Act 338 (K. & C. Dig., % 9120); Id., § 9162. An affidavit for appeal was filed within the time allowed and a compliance with the general statutes as to appeal was not necessary. 127 Ark. 266; 103 Id. 209; 53 Id. 417; 68 Id. 130; 104 Id. 113, 118; 200 S. W. 792. 2.

McMahan, Chancellor; 1. The check, deed and abstract of title took the transaction out of the statute of frauds. Each party had the right to specific performance the same as if the contract of sale had been in writing. 10 R. C. L. 629, § 11; 1 Devlin on Deeds, 549, 552, § 328 (3 ed.); 18 L. R. A. (N. S.) 337; 21 S. W. 538; 81 Am. St. 201; 43 L. R. A. (N. S.) 390; 30 Ark 61; 102 Id. 377. 2. The abstract was delivered in time. 3 Devlin on Deeds, § 1541. 3.

Cochran, Judge; Appeal from Little River Court; J. S. Lake, Judge; 1. The courts take judicial notice of the provisions of all rules and orders of public boards created by law, where said rules and orders have been made and promulgated by such boards. 130 Ark. 453; 90 Ark. 343. 2. Rule 125 is not void. The Board of Health had power to make the rule. Act 96 Acts 1913. The fine is provided for by the act.

C. Trimble, Judge; 1. Substantial damages were proven and it was error to instruct the jury that plaintiff was entitled only to nominal damages. 1 Sutherland on Damages (4 ed.) § 88, etc. 2. The evidence shows substantial damages and the verdict is clearly against the evidence. 1. The verdict is sustained by the evidence. Plaintiff did not use due diligence or care. 196 S. W. 816. 2. The evidence was conflicting, and there was no error in the instructions.

R. Hay vie, Judge; 1. The check was not a forgery. There were no erasures nor interlineations, nor evidence of any change in the original check as drawn. 2. The acts and admissions of Wesley and Holland were improperly admitted. The testimony was incompetent.

Kirby’s Digest, § 2825. It was a crime to make a false count and also to falsely certify tbe returns. 102 Ark. 651; Kirby’s Dig. § 2228, etc. The indictment fully meets' the requirements of tbe statute. 88 Ark. 311; 49 Id. 499. It is not open to tbe charge of duplicity; if more than one offense was alleged specific objection should be made and if not it is waived. 77 Ark. 418; 32 Id. 203.

It was error to sustain the demurrer. Kirby’s Digest, § § 2777, 2783, 2790, 2779-80, etc. 1. The demurrer was properly sustained. The certificate was not filed within the time prescribed. Kirby’s Digest, § § 2779, 2780; 42 Ark. 93; 52 Id. 265; 12 M. & W. 2; 62 Atl. 856; 4 Cyc. 366; 10 A. & E. Ene. L. (2 ed.) 638; 46 Pac. 457; 45 N. W. 996; 15 Cyc. 338. 2. The indictment was not properly authenticated. Kirby’s Digest, § § 2824, 2790, 2777-9.

Humphries, Chancellor: 1. The order of the court was void for fraud and collusion. It was in excess of 25 per cent, of the estimated cost for the completed work. Kirby’s Digest, § 1416,1420, 1431, etc. This was not cured by the curative Acts of 1909 and 1913. 90 Ark. 166; 94 Id. 588; 100 Id. 63, 390; 114 Id. 551; 79 Id. 289; 48 Fed. 182; 20 Cal. 442; 45 N. E. 207; 50 Id. 1052, etc. 2. No notice was given property owners as provided by law.

B. Sorrells, Judge; 1. The defendants were liable for the second premium. The blank in the application was properly filled. 105 Ark. 243; 96 Id. 110; 2 Cyc. 159. ¡ 2. The contract was not void for lack of mutuality. 96 Ark. 184-8. Defendants received the benefits of the bond. 91 Ark. 367; 94 Id. 12; 113 Id. 556, 563. See also, 9 Cyc. 329; 45 N. T. 45; 6 Am. Rep. 31; 6 R. C. L. 689. 3. The court erred in admitting the testimony of. witness Perdue.

E. Martineau, Chancellor; 1. It is clear that the Legislature intended to impose a penalty, in proportion to the tax, but with a minimum of $1 on each tract of land not included in a return for which the act calls. Each separate tract or lot is subject to penalty irrespective of other tracts of the same owner. Taxes are charges upon the lands and not debts against the owner and the penalties follow the taxes themselves against the lands.

G. Trimble„ Judge; The appeal was taken in time. 132 Ark. 450; 119 Ark. 185. No bond for costs was required. Id. The appeal was not taken within the time and no bond for costs was given. Acts 1909, amending Kirby’s Dig., § 1348. The case in 132 Ark. 450 is in conflict with 57 Ark. 508. . See 64 Ark. 349; 179 S. W. .449; 36 Ark. 203; 10 Id. 195; 43 Id. 424; 11 Id. 48; 93 Id. 42; 24 Id. 487; 28 Id. 478; 19 Id. 553; 129 Id. 242 ; 99 Id. 56-60.

B. Baker, Judge; 1. Tbe court erred in its action with, reference to the plea of res adjudicaba and former suit pending. 94 Ark. 276; 40 Id. 558; 110 Id. 117-121. A judgment, however erroneous, is binding unless reversed on appeal. 66 Ark. 629; 8 Id. 318; 31 Id. 187; 35 Id. 211; 25 Id. 108. The appeal and supersedeas of the probate judgment did not have the effect of vacating same but only stayed proceedings thereunder. 76 Ark. 486; 11 Id. 675; 45 Id. 373.

E. Evans, Judge; Plaintiff assumed the risk and a verdict should have been directed for the defendant. The damage was well known and obvious. 56 Ark. 237; 98 Id. 206; 68 Id. 315; 95 Id. 196; 100 Id. 465; 97 Id. 486; 119 Id. 481; 116 Id. 56; 113 Id. 359; 174 S. W. 150; 180 Id. 984; 198 Id. 530.

Tbe allegation of the complaint that the note was negotiated and transferred before maturity and for a valuable consideration being immaterial to appellee’s right of action, it was unnecessary to be denied in the ¿nswer, therefore the court below, notwithstanding it found as a fact that the note had been obtained by fraud, erred in holding that appellee was relieved from proving the consideration for the assignment.

The written application for the bond constituted a contract whereby appellees obligated themselves to indemnify the surety company against all expenses whatever resulting from any “acts, default or neglect” the company might sustain or incur by reason of having executed the bond. Under the contract, Burke Bros, were clearly liable for the expense of the attorney. 121 la. 352; 96 N. W. 782; 86 N. J. L. 55; 90 Atl. 1026; 137 N. ¡W. 848; 92 Neb. 1.

T. Wood, Chancellor; 1. The erection and operation of a mill was not a part of the consideration for the lease; the only consideration was the payment of the $100 rental. Appellants offered to pay the rental and there was no forfeiture. The intention of the parties when ascertained must govern as to whether a covenant or condition was intended by the words used and if a condition whether precedent or subsequent.

Worthington, Judge; 1. It was error to set aside the default judgment. No valid defense was alleged. K. & C. Dig., § 5163; 83 Ark. 17; 90 Id. 86; 99 Id. 374; 104 Id. 449. 2. No notice was given and appellant is not bound. 3 E. C. L., § 373. 3. Appellee Smith by his endorsement warranted that the instrument was a valid existing instrument. K: & C. Dig., § § 7005, 6974, 7006.

B. Hayme, ■Judge; 1. The judgments in both cases are erroneous, arid should be reversed. Kosminsky was not an officer, but a mere employee. He did not hold over. K. & C. Dig., § 629; Const., art. 19, § 5; 22 Ore. 142; 29 Pac. 356; 29 Cyc. 1365-6; 87 N. Y. Supp. 144; 59 N. E. 353; 124 U. S. 303; 103 Id. 5; 17 Ark. 332. 2. Kosminsky ceased to be health officer by limitation of his appointment and Middleton performed the services and his claim should be allowed.

D. Robertson, Chancellor; 1. The probate court had no authority to make the order vesting the title to real estate in the appellee, Effie Conlan. 79 Ark. 112; 70 Id. 25; 92 Id. 143. No compliance was had with Kirby’s Digest, § § 2720-1-2. 2. Under stipulation of counsel and depositions no service, personal or constructive, was had on appellant. K. & C. Dig., § 5153. She was a resident of Lee County. 3. The widow takes subject to the deed of trust.

Cochran, Judge; 1. The contract was in writing and parol testimony to vary its terms was not admissible. It was error to admit parol testimony that Rogers intended to sign as surety for appellant. 2. Appellant moved the court to reduce all the instructions to writing, and it was error to refuse. Const, art. 7, § 23; 72 Ark. 398. 3. The court erred in its instructions.

R. Eaynie. Judge; 1. Appellee is liable under paragraph one for his failure to serve the writ. He was duly elected and qualified as constable and acted as such. 89 Ark. 488; 123 Id. 46. The law presumes that every officer has performed every duty enjoined on him by statute. A violation of that duty renders him liable. Kirby’s Dig. § 678; 23 iArk- 295. 2. The court erred in not rendering judgment for the penalties sued for. Kirby’s Dig., § § 4487, 4566, 4570, 355.

Young had no notice of Cowan’s title to the timber. The testimony is evasive, contradictory and unsatisfactory as to Young’s actual knowledge. 2. The timber was not removed within a reasonable time and there was no limit in the deed. 77 Ark. 116; 78 Id. 408;'93 Id. 5; 124 Id. 574; 126 Id. 46; 116 Id. 393. Nine years was an unreasonable time. 1. Appellant had notice of the timber deed and was not an innocent purchaser.

1. Contracts — promise to pay the debt of another — statute of frauds. — A parol promise to pay the debt of another is not within the statute of frauds when it arises from some new and original… Held: the contract was binding on A., and A. can not defend on the ground that the rights waived by B. to sue out the garnishments would have been profitless had they been pursued. Appeal from Craighead Circuit Court, Jonesboro District; W. J. Driver, Judge; 1.

M. EUiott, Chancellor; 1. Moorehead’s relation to Crawley was sustained by the evidence. The marriage to his mother was duly proven. The law presumes the legitimacy of a child born in wedlock. 81 Md. 118. See also 96 Ala. 195; 6 How.' 550. 2. Appellant had title by adverse possession. 3. Harris never acquired title never having a deed. He had no color of title. 84 Ark. 316. See also, 26 Id. 18. 4. The Weils have no title. They only paid taxes without color of title.

M. Elliott, Chancellor; 1. An equitable assignment of the policy was made by Moore in his lifetime, and appellant is entitled to the proceeds of the policy. 29 N. E. 33, 129 N. Y. 140; 8 Eed. 540; 53 S. W. 181; 32 Id. 958; 59 Id. 192; 30 So. 742; 97 N. Y. S. 86; 31 Id. 202. 2. The provision in the policy requiring the written consent of the issuing company was for its own benefit, and can not be availed of by a third person. 53 Ark. 255.

Coleman, Judge; 1. No claim for damages or loss was ever made out and given as provided in the receipt. This was a condition precedent. 89 Ark. 404; 90 Id. 308; 67 Id. 407; 89 Id. 404; 95 Id. 412. The question as to the reasonableness of the notice and whether notice was given was for a jury. 89 Ark. 404. See 10 C. J. 327; 118 Ark. 406; 104 Id. 215. 2.

Martineau, Chancellor; 1. The court erred in holding that the bond was in the nature of a supersedeas bond and that Bonner still had an interest in the lands. The purpose of the bond was to release the lands from the suit and permit their disposal to a purchaser and was given for Bonner’s protection, and he was to look to the bondsmen personally. 2.

T. Humphries, Chancellor; 1. It was error to overrule the demurrer as the complaint was not sufficient. 97 Ark. 118. 2. The matter was res judicata. 23 Cyc. 1106, Í135, 1139, 1170, 1295; 21 A. & E. Ene. L. 193, 216-17; 77 Ark. 379; 19 Id. 420; 76 Id. 423; 178 S. W. 381.

H. Evans, Judge; 1. E. L. Cotton was a necessary party. 30 Cyc. 31, 141-2. 2. The testimony was prejudicial and the instructions erroneous. 197 S. W. 1177; Kirby’s Dig., § 5999. Harkrider has been paid for all the time spent for which he- had a lien. Part of the time he had no lien, as his labor did not contribute to producing the staves. 71 Ark. 334; 69 Id. 23. 3. For error in the instructions, see 71 Ark. 334; 199 S. W. 73.

8. Lake, Judge; 1. It was error to direct a verdict. There was a question of fact for a'jury under proper instructions. The right to a trial by jury is inviolate under the Constitution. Const., art 7, § 23; 73 Ark. 561; 76 Id. 520.

McMahan, Chancellor; I. Bradley’s title can not be disputed by Rambo or his assignees. 54 Ark. 460; 84 Id. 220; 104 Id. 322. Rambo was not financially able to operate the property. He made false representation of material facts. 38 Ark. 334; 46 Id. 245; 60 Id. 281; 15. 387; 74 Id. 46. His contract was forfeited. 97 Ark. 167; 2 Cyc. 705. (1) This was a chancery case and will be tried here de novo. 43 Ark. 451; 62 Id. 262; 75 Id. 181; 76 Id. 551; 88 Id. 363; 1.14 Id. 316.

<p>Appeal from Garland Circuit Court; Scott Wood, Judge;</p>